Exhibit 10.6
ADVERTISING, PROMOTION AND MARKETING AGREEMENT
THIS ADVERTISING, PROMOTION AND MARKETING AGREEMENT ("Agreement") is made
and entered into as of the latest date of signature of a party hereto
("Effective Date"), by and between XX0.XXX, INC., a Delaware corporation
("XX0.xxx") having an address at 0000 Xxxxxxxx Xxxx Xxx Xxxxx, XX 00000, and
FREEI NETWORKS, INC.., a Washington corporation Freei"). XX0.xxx and Freei may
each be referred to individually as a "Party" and collectively be referred to as
the "Parties."
WHEREAS, XX0.xxx owns and operates the web site at XXX.XX0.XXX (tile "Web
Site") and seeks to promote the marketing, branding and traffic to the Web Site;
WHEREAS, Freei owns and operates the web site at XXX.XXXXX.XXX (the "Freei
Site") and seeks to promote the marketing, branding and traffic to the Freei
Site and its related software interface products and services;
WHEREAS, XX0.xxx desires to obtain, and Freei desires to provide, certain
promotion of the Web Site within the Freei Site and Freei's software interface
product under the terms and conditions set forth herein;
WHEREAS, Freei desires to purchase, and XX0.xxx desires to provide,
$4,000,000 of advertising, promotion and marketing services under the
terms and conditions set forth herein; and
WHEREAS, as a condition precedent to this Agreement becoming effective,
XX0.xxx is purchasing certain equity holdings in Freei pursuant to that certain
stock purchase agreement of even date herewith (the "Stock Purchase Agreement").
NOW, THEREFORE, in exchange for the consideration set forth herein, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
1. WELCOME SCREEN PROMOTION. Freei shall include an "XX0.xxx Link" to the
Web Site on the front page of the Freei Site and in the "Welcome Screen" of each
copy of Freei's software interface product that is downloaded, shipped or
delivered during the Term. Any graphics, placement and position of the XX0.xxx
Link on the Freei Site and the Welcome Screen shall be determined by the mutual
agreement of the Parties, which shall be made in good faith and with commercial
reasonableness by the Parties. Hereinafter, for all provisions of this Agreement
requiring mutual agreement of the Parties, the Parties agree that they shall use
and apply good faith and commercial reasonableness standards in their
negotiations for such mutual agreement(s).
2. MUSIC GENRE REGISTRATION INFORMATION. Freei shall, commencing no
later than the effective date AND continuing throughout the Term, incorporate
into the survey completed by individuals subscribing to Freei's free internet
service for the first time such questions reasonably designed to determine
which of XX0.xxx's top 10 music genres are preferred by such user. Freei
agrees to share any and all information derived from such questions with
XX0.xxx subject to Freei's privacy policy and any restrictions or obligations
1
[*] = Confidential Treatment Requested
undertaken by Freei with respect to its subscribers or users. As permitted
under Freei's privacy policy that may then be in effect. Freei will
distribute at least one (1) e-mail promotion on behalf of XX0.xxx, subject to
XX0.xxx's approval, to all of the e-mail addresses in Freei's e-mail registry
in a format and manner as mutually agreed-upon by the Parties and shall
contain MP3.com-recommended songs in each e-mail recipient's preferred
musical genre.
3. MUSIC-ORIENTED CHANNEL PROMOTION. Freei shall include an XX0.xxx Link in
all music-oriented "content channels" contained in each copy of Freei's software
interface product that is downloaded, shipped or delivered during the Term.
Placement and position of the XX0.xxx Link within each such content channel
shall be determined by the mutual agreement of the Parties.
4. ADVERTISING, PROMOTION AND MARKETING COMMITMENT.
4.1 MEDIA PURCHASE. Freei agrees to purchase from XX0.xxx various
advertising, promotional and marketing items and services, in the amounts and
in the manner set forth in this Agreement. Such items and services may include,
but not be limited to, free CD sales promotions, banner ads, portals, graphical
buttons, e-mail marketing sponsorships, event and tour sponsorships, CD sampler
sponsorships, webcast sponsorships, co-branded media programs, artist
acquisition programs, artist and consumer education programs, other
sponsorships, on- and off-line promotions and related services, and any other
channels or means of advertising, marketing or promotions that are presently
offered by XX0.xxx or may be created by XX0.xxx during the applicable purchase
periods under this Agreement (collectively, "Media"). Such Media purchases shall
be Subject to XX0.xxx's standard terms and conditions applicable to each such
Media, except with respect to any terms or conditions which may contradict or
violate the terms of this Agreement, in which case the terms and conditions of
this Agreement shall apply.
4.2 MEDIA PREPAYMENTS. Subject to the payment conditions in Section
4.4 herein, Freei further agrees that it shall purchase, on a prepaid basis
for each quarterly period set forth on Exhibit A attached hereto (each a
"Quarter") during the term of this Agreement, no less than the full dollar
amount of Media as set forth opposite such Quarter on Exhibit A attached
hereto. Should Freei not fully use any amount of Media that it has paid for
in any given Quarter (except as provided in Section 10 herein), provided such
total amount of unused Media shall be no greater than [*] of such Quarter's
Media payments, Freei's rights to such unused Media shall carry over to the
following Quarter without penalty. Notwithstanding the foregoing, in the
event that (i) Freei's total amount of unused Media for a given Quarter is
greater than [*] of such Quarter's Media payments, or (ii) Freei has not
allocated and used all of its Media purchased under this Agreement by
November 30, 2000, all of Freei's rights to such unused Media shall
terminate, all remaining payment obligations of Freei shall remain in effect
and any advance payments for such Quarter (or Quarters, as applicable), shall
remain the sole property of XX0.xxx with no further obligations whatsoever
with respect to the Media scheduled for such Quarter (or Quarters, as
applicable).
4.3 QUARTERLY MEDIA ALLOCATION; DEFAULT ALLOCATION. Freei and
XX0.xxx shall meet no later than two weeks prior to the beginning of each
Quarter to discuss the manner in which the Media to be purchased during such
Quarter shall be allocated. XX0.xxx and Freei
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shall use their best efforts to mutually agree upon the specific allocation
of such Media, and shall set forth such allocation in a written document
signed by both parties no later than the first day of each Quarter.
Notwithstanding the foregoing, the Parties agree that on a commercially
reasonable basis, XX0.xxx and Freei may meet from time to time to adjust any
allocations of Media buys during any month in any Quarter. Notwithstanding
the foregoing, in the event XX0.xxx and Freei are unable to mutually agree
upon the specific allocation of any Quarter's Media, such Quarter's Media
shall be allocated in the same manner as in the prior Quarter; provided,
however, that if a particular type of Media is not available in such current
Quarter, the amount attributable to that particular Media shall be allocated
proportionately among the other categories from the prior Quarter. XX0.xxx
and Freei agree to negotiate in good faith with the type, the respect to lie
type, quantity, frequency, placement and price of the Media to be purchased
during each Quarter.
4.4 MEDIA FEES. There shall be twelve (12) payments by Freei for
the Media buys in accordance with the schedule set forth in Exhibit A hereto.
Freei shall make all such prepayments referred to herein to XX0.xxx in the
form of (i) a wire transfer to XX0.xxx's account at Imperial Bank, 000 "X"
Xxxxxx, Xxxxx 000, Xxx Xxxxx, XX 00000 Routing # 000000000, Account #
0000-000-000, or any other account previously approved in writing by XX0.xxx,
(ii) actual delivery of a check to XX0.xxx, or (iii) as otherwise agreed to
in writing by XX0.xxx.
4.5 LATE PAYMENTS; TAXES. Any late payments under this Agreement
will be assessed a service the of one and one-half' percent (1.5%) per month,
to the extent allowed by law. The calculation of the service fee shall be
based on a per day basis for each day the payment may be late; for example
and without limitation, if a payment arrives one day late, then the service
fee shall be the number equal to the amount then due times 18% divided by 365
(or 366 in a leap year such as the year 2000). All fees owed by Freei to
XX0.xxx are exclusive of, and Freei shall pay, all sales, use, excise and
other similar taxes which may be levied upon either party in connection with
this Agreement, except for taxes based on XX0.xxx's net income and/or gross
receipts.
5. DELIVERY OF ADVERTISER CONTENT. Freei will deliver to XX0.xxx such
materials, logos and designs as may be reasonably required by Freei and/or
requested by XX0.xxx in connection with the performance of XX0.xxx's
obligations under this Agreement. Any materials so delivered are hereinafter
referred to as "Advertiser Content." In the event that any Advertiser Content
as delivered does not conform to the technical specifications supplied by
XX0.xxx or any Advertiser Content does not arrive when specified by XX0.xxx
in order to meet the agreed-upon start date for delivery of the related Media
under this Agreement, then XX0.xxx may, in its discretion: (a) refuse such
Advertiser Content and, if available, substitute any prior Advertiser Content
and, if available, substitute any prior Advertiser Content in XX0.xxx's
possession or (b) delay delivery of the related Media until Freei shall have
delivered a corrected copy of such Advertiser Content.
6. LICENSE.
6.1 ADVERTISER CONTENT LICENSE. Freei hereby grants to XX0.xxx a
nonexclusive, royalty-free, worldwide license to use, reproduce, distribute,
create derivative works of, publicly perform, publicly display and digitally
perform the Advertiser Content on or in
3.
conjunction with the Web Site and the Media delivered hereunder. Title to and
ownership of all intellectual property rights of the Advertiser Content shall
remain with Freei or its third party licensors.
6.2 XX0.XXX CONTENT LICENSE. XX0.xxx hereby grants to Freei a
nonexclusive, royalty-free, worldwide license to use, reproduce, distribute,
create derivative works of, publicly perform, publicly display and digitally
perform the materials solely owned, or entitled to be assigned or exclusively
sublicensed, by XX0.xxx that are delivered to Freei in connection with Sections
1 and 3 of this Agreement (the "XX0.xxx Content"). Title to and ownership of all
intellectual property rights of the XX0.xxx Content shall remain with XX0.xxx or
its third party licensors.
6.3 TRADEMARKS. None of' the Parties hereto may use any other Party's
trademarks, service marks, trade names, logos, or other commercial or product
designations (collectively, "Marks") for any purpose whatsoever without the
prior written consent of the other Party. Notwithstanding the foregoing, each
Party hereby grants to the other Party a nonexclusive, nontransferable,
royalty-free, worldwide license to use such Party's Marks on the Web Site or the
Freei Site, as applicable, for the purposes of marketing, promotion, and content
directories or indexes, and in electronic or printed advertising, publicity,
press releases, newsletters and mailings about the Web Site or the Freei Site,
as applicable, or the Parties; provided, however, that such use of each Party's
marks shall be subject to the prior approval of such Party, which approval shall
not be unreasonably withheld so long as the goodwill of a Party's Marks is not
damaged as determined in the good faith and reasonable determination of the
Party owning the Marks.
7. REPORTS. Within a commercially reasonable amount of time after each
calendar month in which Media is delivered under this Agreement, XX0.xxx will
provide Freei standard XX0.xxx reports summarizing the quantity, frequency,
placement and distribution of the Media delivered during the preceding month.
Freei acknowledges and agrees that any statistics or other Information provided
to Freei pursuant to this Section 7 shall be deemed "Confidential Information"
of XX0.xxx, except to the extent that such Confidential Information is not
already in the lawful possession of Freei from independent, unprivileged
sources. Freei agrees to hold such Confidential Information in strict confidence
and not to disclose such Confidential Information to any third parties, provided
that any successor-in-interest to Freei shall have the same rights as Freei to
use such Confidential Information for its own benefit, and further provided that
any advertising agency or other independent consultant or venture capital firm,
underwriter, or investor, shall be entitled to review such Confidential
Information when such third party has signed a confidentiality agreement
incorporating the terms of this Section 7.
8. RECORDS AND AUDITS. XX0.xxx shall keep complete and accurate records
pertaining to the pricing and sale or other disposition of the Media in
sufficient detail to permit Freei to confirm the accuracy of all purchases
made hereunder. Freei shall have the right to cause an independent, certified
public accountant reasonably acceptable to XX0.xxx to audit such records to
confirm the determination of pricing hereunder for the preceding year. Such
audits may be exercised during normal business hours upon at least 30 working
days' prior written notice to XX0.xxx. Audits may be conducted no more than
once in any calendar year. Freei shall bear the full cost of any such audits;
provided, however, that if the total pricing
4.
variance, as determined by the results of such audit, exceeds ten percent
(10%) in the aggregate, then XX0.xxx shall bear the costs of any such audit.
9. REPRESENTATIONS AND WARRANTIES.
9.1 ADVERTISER MATERIAL. Freei shall be solely responsible for any
legal liability arising out of or relating to the composition of the Advertiser
Content and any material to which users can link through the Advertiser Content
(collectively, the "Advertiser Material"). Freei represents and warrants that
the Advertiser Material does not and will not: (a) infringe on any third party's
copyright, patent, trademark, trade secret or other proprietary rights or right
of publicity or privacy; (b) violate any law, statute, ordinance or regulation,
including without limitation the laws and regulations governing export control,
unfair competition, antidiscrimination or false advertising; (c) be defamatory
or trade libelous; (d) be defamatory, harmful to minors, obscene or child
pornographic; (e) be materially false, misleading or inaccurate or cannot be
promptly fulfilled, or (f) contain viruses, trojan horses, worms, time bombs,
cancelbots or other similar harmful or deleterious programming routines. Freei
agrees to defend, indemnify and hold harmless XX0.xxx and its directors,
officers, agents and employees for any and all losses, costs, liabilities or
expenses (including without limitation reasonable attorneys' and expert
witnesses' fees) incurred or arising from: (a) any breach of the foregoing
representations or warranties; (b) any claim arising from the sale of license of
Freei's goods or services; or (c) any other act, omission or representation by
Freei. XX0.xxx may participate in the defense at its option and expense.
9.2 XX0.XXX MATERIAL. XX0.xxx shall be solely responsible for any
legal liability arising out of or relating to the composition of the XX0.xxx
Content and any material to which users can link through the XX0.xxx Content
that is solely owned by XX0.xxx or may be assigned or exclusively sublicensed by
XX0.xxx (collectively, the "XX0.xxx Material"). XX0.xxx represents and warrants
that the XX0.xxx Material does not and will not: (a) infringe on any third
party's copyright, patent, trademark, trade secret or other proprietary rights
or right of publicity or privacy; (b) violate any law, statute, ordinance or
regulation, including without limitation the laws and regulations governing
export control, unfair competition, antidiscrimination or false advertising; (c)
be defamatory or trade libelous; (d) be defamatory, harmful to minors, obscene
or child pornographic; (e) be materially false, misleading or inaccurate or
cannot be promptly fulfilled, or (f) contain viruses, trojan horses, worms, time
bombs, cancelbots or other similar harmful or deleterious programming routines.
XX0.xxx agrees to defend, indemnify and hold harmless Freei and its directors,
officers, agents and employees for any and all losses, costs, liabilities or
expenses (including without limitation reasonable attorneys' and expert
witnesses' fees) incurred or arising from: (a) any breach of the foregoing
representations or warranties; (b) any claim arising from the sale of license of
XX0.xxx's goods or services; or (c) any other act, omission or representation by
XX0.xxx. Freei may participate in the defense at its option and expense.
9.3 DUE AUTHORIZATION. Each Party represents and warrants to the
other Party that it has all necessary corporate power and authority under all
applicable provisions of law to execute and deliver this Agreement and to
carry out its provisions. All corporate action on each Party's part required
for the lawful execution and delivery of this Agreement and any related
agreements has been effectively taken. Upon its execution and delivery, this
Agreement will be
5.
a valid and binding obligation of each Party, enforceable in accordance with
its terms, except (a) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other laws of general application affecting
enforcement of creditors' rights and (b) general principles of equity that
restrict the availability of equitable remedies.
10. DISCLAIMER OF WARRANTIES; LIMITED REMEDY. Each Party provides its
web site and all services performed hereunder "AS IS" and without any
warranty of any kind. EACH PARTY MAKES NO REPRESENTATIONS, WARRANTIES OR
GUARANTEES OF ANY KIND, EITHER EXPRESS OR IMPLIED WITH RESPECT TO THE MEDIA
PROVIDED HEREUNDER. SUCH PARTY'S CONTENT OR MATERIALS (EXCEPT WITH RESPECT TO
THE EXPRESS WARRANTIES PROVIDED IN SECTION 9 ABOVE) OR THE FUNCTIONALITY,
PERFORMANCE OR RESULTS OF USE THEREOF, INCLUDING, WITHOUT LIMITATION, ANY
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHER
WARRANTIES ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF
PERFORMANCE. Neither, Party guarantees continuous or uninterrupted display or
distribution of the other Party's Content and Materials. In the event of
interruption of display or distribution of the Advertiser Content, XX0.xxx
sole obligation shall be to restore service as soon as commercially
practicable. If XX0.xxx does not deliver a specific Media that it had
previously agreed to deliver within a given Quarter, Freei's sole remedy
shall be to receive a refund of an amount equal to the dollar amount
allocated for that specific Media in such Quarter; PROVIDED, HOWEVER, that if
such failure to deliver specific Media is due to an interruption in service
on the Web Site. In lieu of such a refund, XX0.xxx may deliver the specific
Media as soon as practicable in the following Quarter as determined by the
mutual agreement of the Parties.
11. CONSEQUENTIAL DAMAGES DISCLAIMER. IN NO EVENT SHALL EITHER PARTY BE
LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL
DAMAGES (INCLUDING BUT NOT LIMITED TO SUCH DAMAGES ARISING FROM BREACH OF
CONTRACT OR WARRANTY OR FROM NEGLIGENCE OR STRICT LIABILITY), OR FOR INTERRUPTED
COMMUNICATIONS, LOSS OF USE, LOST BUSINESS, LOST DATA OR LOST PROFITS, INCOME
OR GOODWILL, THE REJECTION OR REMOVAL OF ANY ADVERTISER CONTENT, OR ANY DELAY IN
DISPLAYING OR THE FAILURE TO DISPLAY ANY ADVERTISER, CONTENT, ARISING OUT OF OR
IN CONNECTION WITH THIS AGREEMENT.
12. LIMITATION OF LIABILITY. EXCEPT FOR CLAIMS RELATED TO SECTIONS 9.1 OR
9.2 ABOVE, NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT, EACH PARTY'S
AGGREGATE LIABILITY TO THE OTHER PARTY UNDER ANY CLAIMS RELATING TO OR ARISING
OUT OF THIS AGREEMENT SHALL NOT EXCEED AN AMOUNT GREATER THAN THE AMOUNTS
RECEIVED UNDER THIS AGREEMENT BY SUCH PARTY DURING THE' TWELVE (12) MONTH PERIOD
IMMEDIATELY PRECEDING SUCH CLAIM.
6.
13. TERM AND TERMINATION.
13.1 TERM OF AGREEMENT. The term of this Agreement shall commence on
the Effective Date and shall remain in full force and effect until November _,
2001 (the "Term").
13.2 TERMINATION FOR DEFAULT. Freei or XX0.xxx may terminate this
Agreement:
(a) Except as set forth in Section 10, immediately upon written notice
if the other Party breaches a material term or condition of the Agreement and
does not cure such breach (or commence a cure in a manner reasonably
satisfactory to the non-breaching party) within ninety (90) days (or ten (10)
days in the event of nonpayment of money) after written notice of such breach;
or
(b) Immediately upon written notice if the other ceases to do
business, or otherwise terminates its business operations, except as a result of
a permitted assignment; or
(c) Immediately upon written notice if the other shall fail to
promptly secure or renew any license, registration, permit, authorization or
approval for the conduct of its business in the manner contemplated by this
Agreement or if any such license, registration, permit, authorization or
approval is revoked or suspended.
13.3 RIGHTS AND OBLIGATIONS UPON TERMINATION. In the event this
Agreement expires or is terminate: (a) each Party shall cooperate with the
others in order to effect an orderly termination of the relationship created by
this Agreement, including each Party's prompt return of any Confidential
Information. Termination of this Agreement shall not limit any Party from
pursuing other remedies available to it, including in injunctive relief. The
parties' rights and obligation under Sections 9, 10, 11, 12, 13 and 14, and the
provisions regarding "Confidential Information" under Section 7, shall survive
termination or expiration of this Agreement.
14. GENERAL PROVISIONS.
14.1 EFFECTIVENESS. This Agreement shall not become effective until
and unless the Stock Purchase Agreement is entered into between the Parties.
14.2 ENTIRE AGREEMENT. This Agreement, together with any Exhibits
attached hereto, represents the entire agreement between the Parties with
respect to the subject matter hereof and thereof and shall supersede all prior
agreements and communications of the Parties, oral or written.
14.3 AMENDMENT AND WAIVER. No amendment to, or waiver of, any
provision of this Agreement shall be effective unless in writing and signed by
all Parties hereto. The waiver by any party of any breach or default shall not
constitute a waiver of any different or subsequent breach or default.
14.4 PUBLICITY. Freei agrees that it shall not issue a press release
or public announcement pertaining to the transactions contemplated by this
Agreement at any time, unless XX0.xxx expressly agrees otherwise and agrees to
the form and substance of such press release
7.
or announcement, which consent shall not be unreasonably withheld. Unless
expressly otherwise agreed to by XX0.xxx, Freei will not disclose the
transactions contemplated by this Agreement and will maintain the
confidentiality of these transactions, except (x) to the extent required by law,
(y) in connection with any bona fide due diligence investigation conducted by a
potential investor, acquiror, commercial lender, investment bank or the like
where such party executes Freei's customary nondisclosure agreement or (z) to
the extent that Freei, after consultation with outside legal counsel, determines
that such disclosure is required to be made in any filing made pursuant to the
Securities Act of 1933 or the Securities Exchange Act of 1934, as applicable.
14.5 GOVERNING LAW. XX0.xxx and Freei agree to submit any dispute or
controversy arising out of or relating to this Agreement, including without
limitation the interpretation, performance, breach, termination or validity
thereof, to mediation before a single mediator to be selected by the parties or,
if they cannot agree on a mediator within seven days of a request for mediation
under this paragraph, before a single mediator to be selected in accordance with
rules and procedures of the American Arbitration Association. The mediation
shall take place in (i) San Diego, California, if such action was initiated by
Freei or (ii) Seattle, Washington, if such action was initiated by XX0.xxx, at a
location and time to be agreed upon by the parties and the mediator or, in the
absence of agreement, by the mediator. Each party shall share equally in the
compensation and costs of the mediator. In the event the dispute is not resolved
by mediation within thirty days of the request for mediation, the dispute shall
be resolved by arbitration administered by the American Arbitration Association
in accordance with its Commercial Rules then in effect, and judgment on the
award rendered by the arbitrator may be entered in any court having jurisdiction
thereof. The arbitrator or arbitration panel shall have the authority to award
only those damages permitted in the Agreement, subject to any disclaimers of
damages and liability limits set forth in this Agreement, and shall not have the
authority to reform, modify or materially change this Agreement. The arbitration
shall take place in (i) San Diego, California, if such action was initiated by
Freei or (ii) Seattle, Washington, if such action was initiated by XX0.xxx, at a
location and time to be agreed upon by the parties or, in the absence of
agreement, by the arbitrator. The expense of the arbitration, including the
compensation of the arbitrator, shall be borne in accordance with the award of
the arbitrator. Notwithstanding anything in this Section to the contrary,
either party may seek injunctive relief in any appropriate jurisdiction for
any violation of such party's intellectual property rights. This Agreement shall
be governed by and interpreted in accordance with the laws of the State of
California without giving effect to principles of conflicts of laws. Each party
hereby agrees to submit to jurisdiction in California and further agrees that
any cause of action arising under this Agreement must be brought exclusively in
a court in San Diego County, California.
14.6 SUCCESSORS AND ASSIGNS. No Party shall assign its rights or
obligations under this Agreement without the prior written consent of the other
Party, which shall not unreasonably be withheld or delayed. Notwithstanding the
foregoing, each Party may assign this Agreement to an entity who acquires
substantially all of the stock or assets of a Party to this Agreement; provided
that consent will be required in the event that the non-assigning Party
reasonably determines that the assignee will not have sufficient capital or
assets to perform its obligations hereunder. All terms and provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective permitted transferees, successors and assigns.
8.
14.7 FORCE MAJEURE. No Party shall be liable for failure to perform
or delay in performing any obligation (other than the payment of money) under
this Agreement if such failure or delay is due to fire, flood, earthquake,
strike, war (declared or undeclared), embargo, blockade, legal prohibition,
governmental action, riot, insurrection, damage, destruction or any other
similar cause beyond the control of such party.
14.8 NOTICES. All notices, requests and other communications
called for by this agreement shall be deemed to have been given immediately if
made by telecopy or electronic mail (confirmed by concurrent written notice sent
via overnight courier for delivery by the next business day), if to XX0.xxx at
0000 Xxxxxxxx Xxxx, Xxx Xxxxx, XX 00000, attention Director, Legal Affairs
(e-mail: xxxxx@xx0.xxx), and if to Freei at the physical and electronic mail
addresses set forth on the signature page of this Agreement, or to such other
addresses as each Party shall specify to the other Party. Notice by any other
means shall be deemed made when actually received by the Party to which notice
is provided.
14.9 SEVERABILITY. If any provision of this Agreement is held to be
invalid, illegal or unenforceable for any reason, such invalidity, illegality or
unenforceability shall not effect any other provisions of this Agreement, and
this Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein.
14.10 WAIVER OF BREACH. The waiver by any party of a breach or default
of any provision of this Agreement by any other party shall not be construed as
a waiver of any succeeding breach of the same or any other provision, nor shall
any delay or omission on the part of any party to exercise or avail itself of
any right, power or privilege that it has, or may have hereunder, operate as a
waiver of any right, power or privilege by such party.
14.11 COUNTERPARTS; FACSIMILE SIGNATURES. This Agreement may be
executed in one or more counterparts, all of which shall be considered one and
the same agreement, and shall become effective when one or more such
counterparts have been signed by each party and delivered to each other party.
This Agreement may be executed and delivered by facsimile and the parties agree
that such facsimile execution and delivery shall have the same force and effect
as delivery of an original document with original signatures, and that each
party may use such facsimile signatures as evidence of the execution and
delivery of this Agreement by all parties to the same extent that an original
signature could be used.
14.12 AUTHORITY. Each of the Parties represents and warrants that the
negotiation and entry of this Agreement will not violate, conflict with,
interfere with, result in a breach of, or constitute a default under any other
agreement to which they are a party.
14.13 ATTORNEYS FEES. The prevailing party in any action to enforce
this Agreement shall be entitled to reimbursement of its expenses. including
reasonable attorneys' fees.
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9.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly
executed as of the Effective Date.
XX0.xxx, INC. XXXXX.XXX, INC.
By: Xxx Xxxxxxxx By: /s/ Xxxxxx XxXxxxxxxx
------------------------- ---------------------------------
Name: Name: Xxxxxx (Xxx) XxXxxxxxxx
----------------------- -------------------------------
Title: President Title: President / CEO
---------------------- ------------------------------
Address: 0000 Xxxxxxxx Xxxx Address: 000 X. 000xx Xx. #000
Xxx Xxxxx, XX 00000 Xxxxxxx Xxx, XX 00000
e-mail: xxxxx@xx0.xxx e-mail: xxxx@xxxxx.xxx
ALSO SEND NOTICES TO: xxxxxx@xxxxx.xxx
10.
EXHIBIT A
QUARTER SCHEDULE: PURCHASE AMOUNT:
Q1: December 1, 1999 through February 29, 2000 $1,000,000
Q2: March 1, 2000 through May 31, 2000 $1,000,000
Q3: June 1, 2000 through August 31, 2000 $1,000,000
Q4: September 1, 2000 through November 30, 2000 $1,000,000
TOTAL: $4,000,000
SCHEDULED PAYMENT DATE: TOTAL PAYMENT:
----------------------- --------------
December 1, 1999 $333,333
January 1, 2000 $333,333
February 1, 2000 $333,334
March 1, 2000 $333,333
April 1, 2000 $333,333
May 1, 2000 $333,334
June 1, 2000 $333,333
July 1, 2000 $333,333
August 1, 2000 $333,334
September 1, 2000 $333,333
October 1, 2000 $333,333
November 1, 2000 $333,334
TOTAL $4,000,000
