MARKETING AGREEMENT
This Marketing Agreement ("Agreement") is made this 1st day of
December, 2000, by and between 5th Avenue Channel Corp., hereinafter referred to
as ("5AC"), a Florida Corporation, and Seabird Limited, hereinafter referred to
as ("SEABIRD"), an Isle of Man corporation.
Recitals
Whereas, 5AC is in the business of advertising, retail, internet and
television production and is granting the non-exclusive right to SEABIRD for the
marketing of its retail products, internet services and programming, hereinafter
referred to as "Business"; and
Whereas, SEABIRD operates a marketing and tourism company; and
Whereas, SEABIRD has been granted by 5AC, the non-exclusive right to
market its Business throughout the European market.
NOW, THERFORE, 5AC and SEABIRD agree as follows:
1. GRANT OF RIGHTS
5AC grants SEABIRD the right to market, advertise, and promote 5AC
products and services, through SEABIRD's various channels of distribution.
Payment of all fees, costs, and expenses incurred or related to such marketing,
advertising and promotion shall be the sole responsibility of SEABIRD.
1.1 SEABIRD Obligations
In addition to the other obligations specified in this Agreement,
during the term of this Agreement, SEABIRD agrees to use its "best efforts" to
market through its various channels of distribution 5AC's Business throughout
the European market
1.2 5AC Permissions
5AC hereby grants SEABIRD the right during the Term to use (i.e. to
copy, transmit, distribute, display and perform both privately and publicly) the
5AC name for the sole and express purpose of marketing the 5AC Business.
2. FEES
2.1 Stock Options
In consideration for marketing services SEABIRD acknowledges that it is
being offered stock options stated in the Stock Option Agreement of dated as of
December 1st, 2000 between 5AC and SEABIRD.
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2.2 Revenue
Revenue and pricing of 5AC Business will be mutually agreed upon at the
time relevant for the marketing of the particular Business.
3. CONFIDENTIAL INFORMATION
3.1 Obligation
Each party agrees that it shall, with respect to its receipt of
Confidential Information of the other party:
3.1.1 use the same care and discretion to prevent
disclosure of such Confidential Information
as it uses with its own Confidential
Information of its own that it does not
desire to disclose, but in no event with
less than a reasonable degree of care;
3.1.2 accept such Confidential Information and use
such Confidential Information only for the
purposes permitted hereunder; and
3.1.3 restrict disclosure of Confidential
Information solely to those of its employees
and agents who have need to know and are
obligated not to disclose such Confidential
Information to any third parties.
3.2 Exceptions
The restrictions of Section 3.2 shall not apply to information that:
3.2.1 is or hereafter becomes part of the public domain
though no wrongful act, fault or ignorance on the
part of the recipient;
3.2.2 the recipient can reasonably demonstrate, is already
in its possession and not subject to an existing
agreement of confidentiality;
3.2.3 is received from a third party without restriction
and without breach of this Agreement;
3.2.4 was independently developed by the recipient as
evidenced by its records; or
3.2.5 the recipient is required to disclose pursuant to a
valid order of a court or other governmental body;
provided, however, that the recipient shall provide
notice to the disclosing party and shall give
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the disclosing party a reasonable opportunity to
interpose an objection or obtain a protective order
requiring that the confidential information so
disclosed be used only for the purposes for which the
order was issued.
3.3 Return
All notes, data, reference manuals, sketches, drawings, memoranda, electronic
media, records in any way incorporating or reflecting any Confidential
Information of the disclosing party and all proprietary rights therein shall
belong exclusively to such disclosing party and the recipient agrees to return
all copies of such materials to the disclosing party immediately upon request or
upon termination of this Agreement.
4. LIABILITY
4.1 Product Responsibility
5AC and SEABIRD acknowledge that neither advocated or endorses the
purchase or the use of any of the products or services offered by the other, nor
do they guarantee the quality, fitness or results of any such products or their
compliance with any law or regulation.
4.2 Representations and Warranties of SEABIRD
SEABIRD represents and warrants that: (a) SEABIRD has the right to
enter into this agreement and to grant the rights and licenses granted herein;
(b) the reproduction, distribution, transmission, public performance and public
display of the 5AC Business permitted herein do not and will not (i) invade the
right of privacy of publicity of any third person, (ii) contain any libelous,
obscene, indecent or otherwise unlawful material, or (iii) infringe ay patent,
copyright or trademark right in any jurisdiction; or (iv) contravene any other
rights of any third person; (c) SEABIRD has received no notice of such invasion,
violation or infringement of rights.
4.3 Indemnification
SEABIRD agrees to defend, indemnify and hold harmless the 5AC from,
against and in respect of any and all demands, claims, actions or causes of
action, losses, liabilities, damages, assessments, deficiencies, taxes, costs
and expenses, including without limitation, interest, penalties and reasonable
attorney's fees and expenses, asserted against, imposed upon or paid, incurred
or suffered by 5AC as a result of, arising from, in connection with or incident
to any breach or inaccuracy of any representation or warranty of SEABIRD to this
Agreement, breach of any covenant or agreement of anything contained in this
Agreement, or any actions of SEABIRD in the performance of its duties under this
Agreement.
5. MISCELLANEOUS PROVISIONS
5.1 Assignment
Except as otherwise provided herein, SEABIRD may NOT assign this
Agreement or any of its rights or delegate any of its duties under this
Agreement unless prior written
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consent of 5AC is granted. Any purported assignment or delegation without such
required consent shall be null and void.
5.2 Counterparts
This Agreement may be executed in multiple counterparts, each of which
shall be deemed an original and all of which together shall be deemed the same
Agreement.
5.3 Governing Law
This Agreement, its interpretation, performance or any breach thereof,
shall be construed in accordance with, and all questions with respect thereto
shall be determined by, internal, substantive laws in the State of Florida,
County of Dade. If either party employs attorneys to enforce any right or claim
arising out of or relating to this Agreement, the prevailing party shall be
entitled to recover reasonable attorney's fees, in arbitration, litigation or
otherwise.
5.4 Headings
Section headings are for convenience only and are not a part of the
Agreement.
5.5 Independent Contractors
5AC and SEABIRD are independent contractors under this agreement, and
nothing herein shall be construed to create partnership, joint venture or agency
relationship between the two parties. Neither party has the authority to enter
into agreements of any kind on behalf of the other party
5.6 Integration
This agreement contains the entire understanding of the parties hereto
with respect to the transactions and matters contemplated hereby, supersedes all
previous agreements between SEABIRD and 5AC concerning the subject matter, and
cannot be amended by a writing signed by both parties.
5.7 No Reliance
No party hereto has relied on any statement, representation or promise
of any other party or with any other officer, agent, employee or attorney for
the other party in executing this Agreement except as expressly stated herein.
5.8 Notice
All notices, demands an other communications hereunder shall be in
writing by written telecommunications, and shall be deemed to have been duly
given: (i) if mailed by certified mail, postage prepaid, on the date five (5)
days from the date of mailing, (ii) if delivered by overnight courier, when
received by the addressee or (iii) if sent by confirmed telecommunication, one
business day following the receipt by the addressee at the principal place of
business.
5.9 Presumptions
In resolving any dispute or construing any provision hereunder, there
shall be no presumptions made or inferences drawn (i) because the attorneys for
one of the parties
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drafted the agreement, (ii) because of the drafting history of the agreement; or
(iii) because of the inclusion of a provision not contained in a prior draft, or
the deletion contained in a prior draft.
6.0 Severability
In the event any provision of this Agreement shall for any reason be
held to be invalid, illegal or enforceable in any respect, the remaining
provision shall remain in full force and effect.
6.1 Waiver
No waiver of any breach of any provision of this Agreement shall
constitute a waiver of any prior, concurrent or subsequent breach of the same of
any other provisions hereof, and no waiver shall be effective unless made in
writing and signed by an authorized representative of the waiving party.
6.2 Right to Cure
In the event either party desires to assert any remedies for breach of
this Agreement, the party desiring to assert such remedies shall give the other
party thirty (30) days written notice and an opportunity to cure within ten (10)
business days.
6.3 Term and Termination.
This Agreement shall commence as of the date set forth above and end
one year from that date. If a party wishes to terminate the agreement, it must
provide within thirty (30) days written notice to the other party prior to the
termination date of the Agreement. This Agreement also may be terminated upon
mutual agreement of the Parties or upon a material breach by either Party not
cured within the time set forth in Section 6.12 above.
IN WITNESS WHEREOF, the parties hereto caused their duly authorized
officers to execute this Agreement as of the date set forth above.
SEABIRD LIMITED 0XX XXXXXX XXXXXXX XXXX.
/s/ [ILLEGIBLE] /s/ XXXXXX XXXXX
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By: Xxxxxx Xxxxx
Title: CEO/President
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