EXHIBIT 10.2
AGREEMENT
This Agreement is entered into as of the 20th day of October, 2001, by
and between Netvertise, Inc., a Florida corporation ("Netvertise") and Netfran
Development Corporation, a Florida corporation ("Netfran").
WHEREAS, the Board of Directors of Netvertise has determined that it is
the best interest of Netvertise and its shareholders to distribute to its
shareholders the franchise business operated by Netfran (the "Distribution");
and
WHEREAS, the parties desire to provide that Netvertise will continue to
provide certain services as described herein to Netfran and its franchisees
after the Distribution.
NOW, THEREFORE, consideration of the mutual covenants and undertakings
contained, and subject to and on the terms and conditions herein set forth, the
parties agree as follows:
1. Services to be Provided to Netfran. During the term of this
Agreement and subject to the terms and provisions hereof, Netvertise shall
continue to provide its personnel, office space and facilities, including
telephone, photocopy, office supplies, insurance, and support services as may be
requested by Netfran from time-to-time for the proper and efficient operation of
the business of Netfran, substantially in the manner provided prior to the
Distribution.
2. Cost Reimbursement. Netvertise shall be reimbursed by Netfran
monthly for the actual costs and out-of-pocket expenses for the services and
facilities provided to Netfran. The parties acknowledge that some of the
services and facilities to be provided to Netfran are shared between the
parties. Netvertise shall provide a detailed monthly billing to Netfran to
support reimbursements requested, including a reasonable allocation of costs and
expenses shared between the parties in such detail adequate enough to satisfy
the reporting requirements of a public
company. In the event of any disputes as to the cost reimbursement, the parties
shall attempt to negotiate in good faith and resolve such issues. In the event
the parties are unable to reach a resolution within 10 days then the independent
public accountants of the parties shall resolve such dispute. In the event that
such independent accountants are unable to resolve the dispute, such accountants
shall select a third independent accountant and the determination of such third
accountant shall be final and binding upon the parties. Each party shall be
responsible for the costs and expenses of its own accountant and 50% of the cost
and expenses of the third accountant, if required.
3. Services to be Provided by Netvertise to Netfran Franchisees.
Netvertise shall continue to provide services for the benefit of Netfran's
franchisees substantially in the manner provided prior to the Distribution. Such
services shall consist of website development, website hosting, website
maintenance, online marketing and promotion, support and upgrading, graphic
design, copywriting, training, e-publishing and such other services as may be
added from time-to-time. Netvertise and Netfran will agree from time-to-time
for the cost of such services which will be charged by Netvertise to Netfran's
franchisees, but such costs will at all times be no greater than Netvertise
charges to other customers not affiliated with Netfran for similar services. In
the event that Netvertise reduces its prices to third parties below the prices
established for Netfran's franchisees, such prices shall automatically be
reduced for Netfran's franchisees. Netvertise shall xxxx and collect from
Netfran's franchisees directly for services rendered and Netfran shall not be
responsible for any amounts due to Netvertise from Netfran's franchisees.
4. Standard of Care. Netvertise shall perform its duties and
responsibilities hereunder in good faith based upon practices prior to the
Distribution. Netvertise will not be held liable or
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accountable, in damages or otherwise, for any error of judgment or any mistake
of fact or law or for anything that it does or refrains from doing, except in
the case of gross negligence or willful misconduct.
5. Term. The term of this Agreement shall commence on the date
hereof and shall continue until the termination of the last Netfran Franchise
Agreement.
6. Proprietary Information. The parties acknowledge that the
proprietary software and marketing tools provided by Netfran to its franchisees
is the sole and exclusive property of Netfran.
7. Force Majeure. In case the performance of any terms or
provisions hereof shall be delayed or prevented in whole or in part, because of
or related to compliance with any law, decree, request or order of any
governmental agency or authority, either local, state, federal or foreign, or
because of riots, war, public disturbance, strike, labor dispute, fire,
terrorist act, explosion, storm, flood, acts of God, major breakdown or failure
of transportation, manufacturing, telecommunications, computer, distribution or
storage facilities, or for any other reason which is not within the control of
the party whose performance is interfered with, which by the exercise of
reasonable diligence such party is unable to prevent, then upon prompt notice by
the parties so suffering to the other party, the party suffering shall be
excused from its obligations hereunder during the period such force majeure
continues, and no liability shall attach against either party on account
thereof. The parties shall be excused from performance if such party fails to
use reasonable diligence to remedy the situation and remove the cause and effect
of the force majeure event.
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8. Miscellaneous. (a) No modification or waiver of any provision
hereof shall be valid unless it be in writing and signed by each of the parties.
(b) The waiver or breach of any term or condition of this
Agreement shall not be deemed to constitute a waiver of any other breach of the
same or any other term or condition.
(c) This Agreement and all of its provisions shall be binding upon
the legal representatives, successors and assigns of the parties.
(d) This Agreement shall be construed in accordance with the laws
of the State of Florida.
(e) The invalidity, unenforceability or impossibility of any
particular provision of this Agreement shall not affect any other provision
hereof, and the Agreement shall be construed in all respects as if such invalid
unenforceable or impossible provision were omitted. The parties acknowledge the
receipt of good and valuable consideration for the agreements herein.
(f) In the event that any claim be raised or any action, in law or
in equity, be instituted pertaining to this Agreement, the parties agree that
the party prevailing shall be paid all expenses and costs incurred by said
party, including reasonable attorney's fees, by the party against whom judgment
is rendered.
(g) This Agreement contains the entire agreement between the
parties hereto, and the terms of this Agreement are contractual and not a mere
recital.
(h) Any controversy arising out of or in connection with this
Agreement shall be settled by arbitration in Miami-Dade County, Florida,
pursuant to the Rules of the American Arbitration Association then in effect,
and the determination rendered shall be conclusive and binding on the parties
thereto. The arbitrators setting in such controversy shall have no power to
alter or modify
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any express provision of this Agreement, nor shall they make any award which by
its terms effects any such alterations or modifications.
(i) This Agreement may be executed by the parties in counterparts,
each copy of which shall have the same force and effect as an original.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals
as of the date first above written.
NETFRAN DEVELOPMENT CORP.
By: s/
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NETVERTISE, INC.
By: s/
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