XXXXXXX.XXX CONTRACT -- WITH INTERNET XXXX.XXX, INC.
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EXIT TRAFFIC AGREEMENT
CONTRACT DATED: 1/1/2000
NETTAXI AGREES TO:
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- Send Exit Traffic: We will send Exit Traffic from our site to the sites
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represented by Internet Fuel. These include but are not limited to:
Xxxxxxxxxxx.xxx Inc., L90 Inc., XxxXxxxXxx.xxx Inc., XxXxx.xxx, Inc.,
- Assign one of ouremployees as a Coordinator (primary contact for Internet
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Fuel).
- Keep confidentiality at all times.
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- Indemnify and hold harmless: Internet Fuel, its subsidiaries, etc. etc.
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from any action brought about by Nettaxi negligence or breach
INTERNET FUEL AGREES TO:
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- Pay to Nettaxi - (for each console of Exit Traffic launched to the client
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sites) $.005 per console redirect.
- Coordinate the reporting of all statistical info relating to Exit Traffic,
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and make available on-line and as a Summary report with each billing
invoice.
- Keep confidentiality at all times.
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TERM OF CONTRACT: One Year, (1/1/2000 thru 1/1/2001)
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TERMINATION
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No termination during the first 30 days of contract, except for cause.
After the first month, either party may terminate the agreement with 30 days
written notice.
FEES DUE TO NETTAXI
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For each console of Exit Traffic launched to the client sites: $.005 per
console redirect.
OTHER TERMS AND CONDITIONS
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- Relationship between parties is that of Buyer and Seller (not
partnership or joint venture).
- Cumulative remedies - no waiver (see contract for actual language).
- Binding nature of contract upon successors and assigns.
- Contract will be enforced in Los Angeles courts only.
- Waiver of Jury Trial. - no jury trial is allowable by this contract.
- Prevailing party will be entitled to reasonable legal fees and costs
in addition to any other court-ordered relief.
EXIT TRAFFIC AGREEMENT
THIS AGREEMENT (this "Agreement") is made on January 1st, 2000; and is
between Nettaxi, a Nevada corporation having its offices located at 0000 Xxxx
Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000 ("Nettaxi"), and Internet Xxxx.xxx, Inc., a
California corporation having its offices located at 0000 X Xxxxxxx Xxxxxx
Xxxxxxxxx, #000, Xxxxxxxxxx, XX 00000 ("the Company").
RECITALS:
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A. The Company represents a number of Web Site and Web companies that
generate banner advertisements, e-mails and exit traffic.
B. Nettaxi owns, operates and represents a Web site, which is a
community portal (the "Site(s").
C. This Agreement shall also set forth the respective duties,
obligations and responsibilities of the parties hereto.
NOW, THEREFORE, in consideration of the mutual promises contained herein, and of
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
1. TERM. Nettaxi hereby agrees to send from its Site, Exit Traffic, as
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such term is defined below, to sites represented by the Company. These sites
shall include but not be limited to sites operated by Xxxxxxxxxxx.xxx, Inc.,
L90, Inc., XxxXxxxXxx.xxx, Inc., XxXxx.xxx, Inc.(the "Client Sites"). The term
of this Agreement shall commence on the date hereof for a period of One (1)
year.
2. DEFINITIONS. For purposes of this Agreement, the following terms
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shall have the meanings set forth in this Section 2:
A. "Exit Traffic" is defined as the number of visitors
redirected by Nettaxi, which were generated by means of the JavaScript Unload
Event. These events are generated when a visitor clicks the back button; reload
button or any of the browser exit buttons. The ad server's redirects the visitor
to the Client Site of the Company.
B. 'CPM" means Cost per Thousand consoles launched.
C. 'Launched" means the number of console loads counted by
the Company's servers, whose reporting is available on-line for Nettaxi to
review.
D. 'Visitor" shall mean any person or entity that accesses
the Client Sites represented by the Company.
3. OBLIGATIONS OF THE COMPANY. During the term of this
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Agreement:
1. The Company agrees pay for consoles of Exit Traffic
launched to the Client Sites One Half Cents ($.005) per console redirect.
4. OBLIGATIONS OF NETTAXI. Nettaxi shall use its best efforts to assist
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the Company to send the agreed upon Exit Traffic to the Client Sites as well as
fulfilling on any other of Nettaxi obligations under this Agreement.
A. Nettaxi shall assign one of its employees as a primary
contact person (the "Nettaxi Coordinator") to assist in the performance of its
obligations hereunder. If such Nettaxi Coordinator ceases to be an employee of
Nettaxi for any reason, Nettaxi will promptly appoint a new employee to serve as
Nettaxi Coordinator.
B. Nettaxi represents and warrants to the Company that
Nettaxi (i) owns and has the unrestricted right to communicate and publish the
Site and conducting business on the World Wide Web at its internet address and
in connection therewith to use all service marks and trade names and in so doing
is not acting in conflict with any patent, trademark, service xxxx, trade name,
copyright, trade secret, license or other proprietary right with respect
thereto, and (ii) Nettaxi has not received any communication from any third
party that the Site or the conduct of Nettaxi's business is in violation of any
law, rule or regulation or in conflict with any patent, trademark, service xxxx,
trade name, copyright, trade secret, license or other proprietary right with
respect thereto. Further Nettaxi shall be solely responsible for obtaining all
necessary rights, licenses, consents, waivers and permissions from the rights
holders and others to allow the Company to store and deliver any material
provided by Nettaxi to be used on the Exit Traffic.
5. STATS MANAGEMENT. The Company shall coordinate the reporting of all
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statistical information relating to Exit Traffic. These Stats will be available
on-line and as a summary report with each billing invoice.
6. CONFIDENTIALITY. Each of Nettaxi and the Company agree to keep
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confidential and each SHall not, without the prior written consent of the other,
disclose in any manner whatsoever, in whole or in part any of the terms of this
agreement or any information, whether written or oral, furnished by the other
party, including all analyses, compilations, forecasts plans, drawings,
specifications, design, software, studies or other documents that contain or
otherwise reflect such information or that are intended to remain confidential,
except as necessary for either party to enforce its rights under this Agreement,
or pursuant to a subpoena or any legal process, or as otherwise may be required
by applicable law.
7. TERMINATION. Nettaxi understands and recognizes that the Company
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invests a significant amount of time and effort in performing its duties
hereunder. Nettaxi acknowledges that the Company requires a significant amount
of time to prepare for any termination of this Agreement. Accordingly, neither
party may terminate this Agreement, during the first month of this Agreement
except for cause. The terminating party shall deliver written notice to the
other party of its intention to so terminate this Agreement (the "Notice"). The
actual date of termination of this Agreement set forth in the Notice shall be a
date at least thirty (30) days after the delivery of the Notice to the other
party, and such terminating party shall not incur any penalty, cost or charge
whatsoever (except as expressly set forth below). For purposes of this
Agreement, "cause" shall mean a negligent act or omission or willful misconduct
of the non-terminating party, or any of its partners, directors, officers,
employees or agents; any material breach or default by the non-terminating party
in the performance of any of its obligations under this Agreement; or any
material breach of any representation, warranty, covenant or agreement by the
non-terminating party. In the event of termination of this Agreement, Nettaxi
will allow the Company to fulfill on any advances or xxxxxxxx invoiced up to the
date of termination. Furthermore, Nettaxi shall pay the Company all amounts due
under this Agreement for Exit Traffic made prior to the actual date of
termination set forth in the Notice.
8. WARRANTY DISCLAIMER; LIMITATION OF LIABILITY. IN NO EVENT SHALL THE
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COMPANY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR
EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF SUCH
DAMAGES ARE FORESEEABLE AND WHETHER OR NOT THE COMPANY HAS BEEN ADVISED OF THE
POSSIBILITY THEREOF. IN NO EVENT WILL THE COMPANY'S LIABILITY HEREUNDER EXCEED
THE TOTAL REVENUES PAID TO NETTAXI IN ONE MONTH.
Should the Company be obstructed, accelerated, incur loss of efficiency in
productivity or be delayed in the commencement, prosecution, or completion of
the services, without fault on its part, by the act, failure to act, direction,
order, neglect, delay, or default of Nettaxi, Nettaxi's agents or employees or
any other entity or person employed at Nettaxi's premises, or by changes in the
services or by reason of fire, lightning, earthquake, enemy action, act of God,
or similar catastrophe, or by government restrictions in respect of materials or
labor, or by a strike or lockout beyond the Company's reasonable control, then
the Company shall be entitled to an extension of time for a period equivalent to
the actual time lost by reason of any or all of the causes aforesaid. Nettaxi
expressly agrees not
to make, and hereby waives, any claim for damages, including those resulting
from increased supervision, labor or material costs, on account of any delay,
obstruction, or hindrance for any cause whatsoever, including, but not limited
to, the aforesaid causes, and Nettaxi expressly agrees that its sole right and
remedy therefore shall be an extension of time.
9. INDEMNIFICATION. Nettaxi shall indemnify, defend and hold harmless
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the Company, the Company's subsidiaries and affiliates, and the respective
partners, agents, officers, directors and employees of each of the foregoing,
from and against any loss, cost, expense, claim, injury or damage (including,
without limitation, reasonable attorneys' fees and expenses), whether incurred
due to third party claims or otherwise, arising or resulting from or caused by
(i) any negligent act or omission or willful misconduct of Nettaxi or any
consultant or engineer retained by Nettaxi, or any of its or their partners,
directors, officers, employees, or agents; (ii) any breach or default by Nettaxi
in the performance of any of its obligations under this Agreement; (iii) any
breach of any representation, warranty, covenant or agreement by Nettaxi.
10. EXPENSES. Each party shall be solely responsible for all of its
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expenses incurred in connection with the performance of its duties hereunder,
including telephone, fax, travel and client entertainment.
11. PRESS RELEASES. Nettaxi and its affiliates will consult with the
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Company hereto and obtain its prior written consent before issuing any press or
other release or otherwise making any other public statement with respect to the
transactions contemplated hereby.
12. ASSIGNMENT. Nettaxi may not assign this Agreement, or any of its
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rights and obligations hereunder, without the prior written consent of the
Company, and any such attempted assignment shall be void. As it relates to
Nettaxi, the terms "assign" and "assignment" shall, for purposes of this
Agreement, be deemed to include (I) the transfer of a majority of the capital
stock or other beneficial interests of Nettaxi or any assignee of Nettaxi,
whether through a single transaction or in a series of related or unrelated
transactions, and (ii) any transaction under which Nettaxi merges with or into
or is consolidated or otherwise combines with another entity, whether Nettaxi or
another entity is the surviving entity.
13. NOTICES. Any notices or other communications required or permitted
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to be given or delivered under this Agreement shall be in writing (unless
otherwise specifically provided herein) an shall be sufficiently given if
delivered personally with a signed receipt therefore, or by reputable overnight
deliver service, or mailed by prepaid certified mail, return receipt requested,
or telefaxed with written confirmation, to the address of the parties set forth
on the
front page of this Agreement. Notices shall be deemed to have been given on the
date delivered, if delivered, or on the second business day after mailing, if
mailed. Either party, upon notice to the other party given in accordance with
this Section 13 may modify its address for notices set forth in this Section 13.
14. CUMULATIVE REMEDIES; NO WAIVER. The remedies of the Company
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provided for in this Agreement are cumulative and shall be in addition, to, and
not in limitation of, the rights and remedies which may be available to the
Company at law or in equity. Notwithstanding any course of dealing or the
failure of either party strictly to enforce any term, right or condition of this
Agreement, no term, right or condition hereof shall be deemed waived and no
breach excused, unless such waiver and consent shall be in writing and signed by
the party claimed to have waived or consented. No consent by any party to, or
waiver of, a breach by the other party shall constitute consent to, waiver of,
or excuse for any other different or subsequent breach.
15. SUCCESSORS AND ASSIGNS. Subject to Section 12, this Agreement shall
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be binding upon, and shall inter to the benefit of, the parties hereto and there
respective legal representatives, and permitted successors and assigns.
16. FORCEMAJEURE. Neither party shall be deemed in default of this
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Agreement to the extent that performance of their obligations or attempts to
cure any breach were delayed or prevented by reason of any acts of nature, fire,
natural disaster, accident, acts of government, labor strikes, "down time" or
any other cause beyond the control of such party, including the sudden and
complete inability to process credit card or other means of processing
commercial transactions on the Internet, provided that such party gives the
other written notice thereof promptly (within ten days of discovery). In such an
event the parties shall mutually decide whether to terminate this Agreement or
effect a cure.
17. ENTIRE AGREEMENT. This Agreement, together with the exhibits
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attached hereto, represents the entire and integrated agreement between the
Company and Nettaxi and supersedes all prior negotiations, representations or
agreements, either written or oral. Only a written instrument signed by both the
Company and Nettaxi may amend this Agreement.
18. APPLICABLE LAW; VENUE. This Agreement shall be governed by and
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construed in accordance with the laws of the State of California, without regard
to choice of law principles. Each party hereby submits to the exclusive
jurisdiction of the United States District Court for the Central District of
California and of any California state court sitting in the City of Los Angeles,
California, for purposes of all legal proceedings arising out of or relating
to this Agreement and the subject matter hereof. Each party irrevocably waives,
to the fullest extent permitted by law, any objection which it may now or
hereafter have to the laying of the venue of any such proceeding brought in any
such court and any claim that any such proceeding brought in such a court has
been brought in an inconvenient forum.
19. LEGAL FEES. If any action at law or in equity is necessary to
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enforce or interpret the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorney's fees, costs and expenses, in addition to any
other relief to which such party may be entitled.
20. SEVERABILITY. If any provision of this Agreement or the application
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thereof to any person or situation to any extent shall be held invalid or
unenforceable, the remainder of this Agreement, and the application of such
provision to persons or situations other than those to which it shall have been
held invalid or unenforceable, shall not be affected thereby, but shall continue
to be valid and enforceable to the fullest extent permitted by law.
21. WAIVER OF JURY TRIAL. EACH PARIY HERETO WAIVES ITS RIGHTS TO A JURY
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TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS
AGREEMENT OR THE SUBJECT MATTER HEREOF. THE SCOPE OF THIS WAIVER IS INTENDED TO
BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND
THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING WITHOUT
LIMITATION CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER
COMMON LAW AND STATUTORY CLAIMS. THIS SECTION 20 HAS BEEN DISCUSSED BY EACH OF
THE PARTIES HERETO AND THESE PROVISIONS SHALL NOT BE SUBJECT TO ANY EXCEPTIONS.
EACH PARTY HERETO HEREBY FURTHER REPRESENTS AND WARRANTS THAT SUCH PARTY HAS
REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT SUCH PARTY KNOWINGLY AND
VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL
COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER
ORALLY OR IN WRITING, AND THIS WAIVER SMALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
SUPPLEMENTS OR MODIFICATIONS TO (OR ASSIGNMENTS OF) THIS AGREEMENT. IN THE EVENT
OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL
(WITHOUT A JURY) BY THE COURT.
22. AUTHORIZATION.
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A. Each party acknowledges and confirms that it and it's
representatives have the right and authority to enter into this Agreement.
B. The relationship shall be that of buyer and seller. Nothing
in this Agreement shall be deemed to create or construed as creating a joint
venture or partnership between the parties. Neither party is, by virtue of this
Agreement or otherwise, to be considered the agent or representative or the
other party. Neither party shall have the right to bind the other contractually
in any respect whatsoever.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly
executed as of the date first written above.
INTERNET XXXX.XXX, INC XXXXXXX.XXX
By: /S/ Xxxxx Xxxxxxx By: /S/ Xxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx Name: Xxxx Xxxxxxx
Title: Advertising Manager Title: Dir. Sls. Development
Telefax No.: 000-000-0000 Telefax No. 000-000-0000
