AGREEMENT
AGREEMENT
This
agreement (the “Agreement”), dated as of July 29th
2003
(the “Effective Date”), by and between PointMatch USA Inc., a Delaware
corporation located at 0000 Xxxxxxxx, 0xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000 (“PointMatch”), and IncrediMail Ltd., an Israeli
corporation located at 0 Xxxxxxx Xx., Xxx-Xxxx, Xxxxxx
(“IncrediMail”).
RECITALS
WHEREAS,
PointMatch owns, designs, operates, maintains and hosts web sites specializing
in providing matchmaking services, including xxx.xxxxxxxx.xxx
(“CupidUSA”); and
WHEREAS,
IncrediMail operates an advanced, feature-rich email program (hereinafter
“Software”) and a website (“XxxxxxxXxxx.xxx”); and
WHEREAS,
IncrediMail and PointMatch would like to cooperate as set forth in this
Agreement;
NOW,
THEREFORE, in consideration of the foregoing, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
parties agree as follows:
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1.
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Operating
a Joint web site.
PointMatch, through CupidUSA, will provide content services in
the
matchmaking field to IncrediMail users, under the names XXxxxxxXxxxxx.xxx
and/or XXxxxxxXxxx.xxx while outwardingly adapting the graphical
external
envelope of IncrediMail (a technique professionally known as
“co-branding”). Hereinafter the joint site will be referred to as the
“Custom Site”. It is agreed and acknowledged that IncrediMail is and shall
remain, during and after the term of this Agreement, the sole owner
of the
domain names “XxxxxxxXxxxxx.xxx” and “XxxxxxxXxxx.xxx” and that PointMatch
shall not obtain any rights in or to the domain names, including
without
limitations with respect to any goodwill created during the term
of this
Agreement. It is further agreed that, subject to Section 15 of
this
Agreement (Exclusivity and Non-Compete), after termination of this
Agreement for any reason whatsoever, IncrediMail may utilize the
“XxxxxxxXxxxxx.xxx” and “XxxxxxxXxxx.xxx” domains and names in any way it
sees fit, including, without limitations, as a site which provides
content
services in the matchmaking field.
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2.
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Domain
names.
IncrediMail agrees that from the termination of this Agreement,
and for a
period of twelve (12) month thereafter, in case it is interested
in
selling, leasing or otherwise disposing of or if it receives a
bona-fide
offer to sell, lease or otherwise dispose of each and/or both of
the
Domain Names it shall provide PointMatch with a right of first
refusal to
acquire and/or lease each and/or both of the Domain Names for the
offered
price. Such right of first refusal should be exercised by PointMatch
within 30 days from the date it was received by
PointMatch.
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Notwithstanding
the above, from the termination of this Agreement and for a period of twelve
(12) month thereafter, members who will try to access the Custom Site through
XxxxxxxXxxxxx.xxx or XXxxxxxXxxx.xxx, will be automatically forwarded to
XxxxxXXX.xxx
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3.
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PointMatch
will be responsible for designing, developing and integrating the
Custom
Site within IncrediMail.
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4.
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PointMatch
will be responsible for managing, hosting and maintaining the Custom
Site,
under PointMatch’s servers, as well as for hardware infrastructure,
software licenses and technical support. IN carrying out such
responsibilities PointMatch shall use reasonable efforts, and any
such
decision or action shall be taken by PointMatch at its sole discretion.
IncrediMail shall have a right to veto the content and graphics
of the
Custom Site. In the event that IncrediMail uses its veto right,
it shall
notify PointMatch, in writing, specifying the content and/or graphics
which are to be changed on the Custom Site. PointMatch shall, immediately
upon receipt of such notice, change the specified materials on
the Custom
Site.
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5.
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PointMatch
will provide daily email and a U.S. telephone number for customer
support
to the Custom Site’s users.
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6.
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PointMatch
will provide IncrediMail with an online monitoring system to follow
all
the Custom Site’s activities.
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7.
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IncrediMail
will create a link to the Custom Site on the main tool bar on
XxxxxxxXxxx.xxx
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8.
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IncrediMail
will incorporate the Custom Site’s “Quick Search Bar” on XxxxxxxXxxx.xxx’s
main web page and Gallery pages.
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9.
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During
the launch campaign, IncrediMail will promote the Custom Site on
XxxxxxxXxxx.xxx and will exercise its reasonable efforts to reach
at least
15,000 clicks per day from the official Launch Date (as defined
hereinafter), and for a period of 14 days. Thereafter, IncrediMail
will
promote the Custom Site on XxxxxxxXxxx.xxx and will exercise its
reasonable efforts to reach at least 10,000 clicks per day. The
scope and
content of the promotion in XxxxxxxXxxx.xxx shall be subject to
the
approval of both sides. IncrediMail shall provide PointMatch with
online
monitoring system to follow the promotional activities (ad server
statistics).
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10.
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IncrediMail
will send a “Stand Alone” email in an agreed form to all its opt-in
members, introducing the new Custom
Site.
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11.
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IncrediMail
will promote the Custom Site regularly on its newsletters. The
scope and
content of such promotion shall be subject to IncrediMail’s sole
discretion.
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12.
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Sharing
of Revenues.
PointMatch and IncrediMail shall equally share the gross revenues
generated from the Custom Site, including without limitation, revenues
from subscriptions to and from advertising on the Custom Site (the
“Gross
Revenues”). For the avoidance of doubts, refunds made to customers and
credit card commissions shall be deducted from the Gross Revenues.
PointMatch shall provide IncrediMail with a complete and accurate
revenue
report in an acceptable form to IncrediMail not later than the
20th
day of the month following each calendar month, setting forth the
Gross
Revenue during the prior calendar month from all activities of
the Custom
Site. PointMatch shall, upon IncrediMail’s request, furnish it with
additional reports. PointMatch shall, within 20 days of the end
of each
month pay IncrediMail its share (50%) in the Gross
Revenues.
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It
is
agreed that for a period of up to eighteen (18) months after the termination
of
this Agreement for any reason whatsoever. PointMatch shall continue paying
IncrediMail its share of the subscription fees received from Subscribers
and
shall continue providing IncrediMail with the reports described in the
proceeding paragraph.
“Subscribers”
shall mean members who subscribed through the Custom Site and are paying
PointMatch subscription fees, and as long as their subscription (either to
the
Custom Site or to any other PointMatch Site) is in force.
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13.
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Advertisement.
Both sides will agree together on advertisement policy on the custom
site.
This includes both advertisement content and revenue
share.
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14.
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Ownership
of Intellectual Property.
The parties agree and acknowledge that all software applications,
(including without limitation the source code), the contents, information
of Subscribers, Members and other parties visiting the Custom Site
(together: “PointMatch IP”) is and at all times shall remain the property
of PointMatch and that IncrediMail shall have no lawful demand
to
PointMatch IP.
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15.
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Exclusivity
and Non-Compete. During
the Term of the Agreement, and for the 12 months thereafter, IncrediMail
shall refrain from integrating or promoting a site similar in nature
to
the Custom Site for any other online service that may be substantially
similar to the dating service. Subject to the Change of Control
provisions
in Section 16 below, IncrediMail shall not compete with PointMatch,
for a
period of 12 months following the termination of the business relationship
between the parties.
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16.
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Term
of the Agreement.
This Agreement shall begin and become effective for an initial
period of
four (4) months from the date the Custom Site first goes on the
Internet
(the “Launch Date” which will be not later then August 31, 2003) as a live
site available to all. Thirty days before the end of this initial
term,
the parties agree to evaluate and hold negotiations in good faith
in
respect of a possible extension of the relationship established
in the
Agreement.
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It
is
agreed that in the event of a Change of Control in IncrediMail or PointMatch
occurs, this Agreement, including without limitation any non-competition
undertaking contained herein and section 2 (domain names) may be terminated
by a
three days written notice.
“Change
in Control Event” means:
(i) a
sale of
all or substantially all of the assets of a company.
(ii) a
sale by
the stockholders of a company of the voting stock of such company to another
corporation or its subsidiaries that results in the ownership by such
corporation and/or its subsidiaries of fifty percent (50%) or more of the
combined voting power of all classes of the voting stock of the Company entitled
to vote;
(iii) a
merger
or consolidation in which a company is not the surviving corporation (other
than
a merger or consolidation in which stockholders of such company immediately
before the merger or consolidation have, immediately after the merger or
consolidation, greater than fifty percent (50%) of the combined voting power
of
all classes of the voting stock of such company entitled to vote);
(iv) any
transaction or series of related transactions in which in excess of fifty
percent (50%) of the combined voting power of all classes of the voting stock
of
a company entitled to vote is transferred.
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17.
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Independent
contractors.
The parties acknowledge and agree that they are dealing with each
other
hereunder as independent contractors. Nothing contained in this
Agreement
shall be interpreted as constituting either party the agent,
representative, joint venture, employee or partner of the other
party or
as conferring upon either party the power of authority to bind
the other
party in any transaction with third
parties.
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18.
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Confidentiality.The
parties agree and undertake to keep confidential any information
confidential and/or proprietary information to which they might
be
respectively disclosed during the Term, and not to make any adverse
usage
therein.
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19.
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DISCLAIMER
OF LIABILITY. NEITHER PARTY SHALL IN ANY CASE BE LIABLE FOR SPECIAL,
INCIDENTAL, CONSEQUENTIAL, INDIRECT OR OTHER SIMILAR DAMAGES
ARISING FROM
BREAH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, OR ANY OTHER
LEGAL
THEORY EVEN IF THEY OR THEIR AGENT HAS BEEN ADVISED OF THE POSSIBILITY
OF
SUCH DAMANGES OR LOSS. IN NO EVENT SHALL THE TOTAL AGGREGATE
LIABILITY OF
EITHER PARTY TO THE OTHER, OR ANY PART CLAIMING ANY RIGHT BY
OR THROUGH
EITHER PARTY, FOR ANY REASON WHATSOEVER EXCEED THE SUM OF THE
PAYMENTS
MADE BY THE ONE PARTY TO THE OTHER UNDER THIS
AGREEMENT.
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20.
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Governing
law.
This Agreement shall be subject to and governed in all respects
by the
statues and laws of the State of Israel without regard to the conflicts
of
laws principles thereof. Jurisdiction in respect of any matter
relating to
Agreement shall be exclusively vested in the competent courts of
the Tel
Aviv District in Israel.
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21.
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Entire
agreement.
This Agreement constitutes the entire agreement and understanding
between
the parties and integrates all prior discussions between them related
to
its subject matter. No modification of any of the terms of this
Agreement
shall be valid unless in writing and signed by an authorized
representative of each party.
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22.
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Assignment.
Neither
party shall assign or otherwise transfer its right and/or obligations
under this Agreement to other entity without the prior written
consent of
the other party.
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IN
WITNESS HEREOF, the parties have duly executed this Agreement as of the date
first written above.
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IncrediMail
Ltd. /s/ Xxxxx Xxxxx
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PointMatch
USA Inc. /s/ Nimrod Lev
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By:
Xxxxx Xxxxx
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By:
Xxxxxx Xxx
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Title:
CEO
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Title:
CEO
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PointMatch
USA Inc. Email: xxxx@xxxxxxxxxx.xxx
Tel:
000.000.0000 Fax: 000.000.0000
