Exhibit 10.2
SERVICES AGREEMENT
This Services Agreement (this "Agreement"), dated as of July
18, 2003, is by and between (i) Media and Xxxxxxxxxxxxx.xxx,
Inc., a Nevada corporation having offices located at 00000 X.
Xxxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxx 00000 (the
"Company"), and (ii) Winsonic Holdings Ltd., a California
corporation having offices located at One Wilshire Building, 000
X. Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000 (the
"Supplier").
1. Services.
1.1. Supplier agrees to perform and provide to Company, services
consisting of non-exclusive electronic access from Company's
digital information processing, transmission and storage systems
("Servers") to the global computer communications network known
as the Internet ("Internet") via digital or optical circuit
having bandwidth of at least 44.736 Million bits per second,
i.e., DS3 or greater (collectively, the "Services").
1.2. Subject to the terms and conditions of this Agreement,
Supplier shall attempt to provide the Services for twenty-four
(24) hours a day, seven (7) days a week throughout the term of
this Agreement. Company agrees that from time to time the
Services may be inaccessible or inoperable for any reason,
including, without limitation: (i) equipment malfunctions; (ii)
periodic maintenance procedures or repairs which Supplier may
undertake from time to time; or (iii) causes beyond the control
of Supplier or which are not reasonably foreseeable by Supplier,
including, without limitation, interruption or failure of
telecommunication or digital transmission links, hostile network
attacks, network congestion or other failures. Company agrees
that Supplier has no control of availability of Services on a
continuous or uninterrupted basis.
2. Payment; Issuance of Company Securities.
2.1. In consideration of Supplier's agreement to provide the
Services, Company shall, as soon as practicable following the
execution and delivery of this Agreement, sell and issue to
Supplier Two Million (2,000,000) shares of Company's common
stock, $.001 par value per share (the "Shares").
2.2. Company represents and warrants that it is a corporation
duly organized, validly existing, and in good standing under the
laws of its state of incorporation, and that it has all requisite
power and full legal right to execute and deliver this Agreement
and to perform all of its obligations hereunder in accordance
with the terms hereof.
2.3. Supplier represents and warrants that it is an "accredited
investor" as defined in Rule 501(a) promulgated under the
Securities Act of 1933, as amended (the "Securities Act"), was
not organized for the specific purpose of acquiring the
securities offered hereby, and has such knowledge and experience
in financial and business matters that it is capable of
evaluating the merits and risks of the transactions contemplated
under this Agreement. Supplier's financial condition is such that
it is able to bear all economic risks of investment in the
Shares, including a complete loss of its investment therein.
Company has provided Supplier with adequate access to financial
and other information concerning Company as requested and
Supplier has had the opportunity to ask questions of and receive
answers from Company concerning the transactions contemplated by
this Agreement and to obtain therefrom any additional information
necessary to make an informed decision regarding an investment in
Company. Supplier is acquiring the Shares solely for investment
purposes, with no present intention of distributing or reselling
any of the Shares or any interest therein. Supplier is aware that
the Shares will not be registered under the Securities Act, and
that neither the Shares nor any interest therein may be sold,
pledged, or otherwise transferred unless the Shares are
registered under the Securities Act or qualify for an exemption
under the Securities Act. Notwithstanding that fact, the Shares
shall be included in the Registration Rights Agreement executed
on the date hereof between the Company and the Supplier.
3. Term.
The term of this Agreement shall commence upon execution and
delivery hereof by the parties and continue thereafter for five
(5) years, unless earlier terminated by the written agreement of
both parties.
4. Miscellaneous.
4.1. Independent Contractors. The parties and their respective
personnel, are and shall be independent contractors and neither
party by virtue of this Agreement shall have any right, power or
authority to act or create any obligation, express or implied, on
behalf of the other party.
4.2. Assignment. Neither party may assign any of its rights,
duties or obligations under this Agreement to any person or
entity, in whole or in part, and any attempt to do so shall be
deemed void and/or a material breach of this Agreement.
4.3. Waiver. No waiver of any provision hereof or of any right or
remedy hereunder shall be effective unless in writing and signed
by the party against whom such waiver is sought to be enforced.
No delay in exercising, no course of dealing with respect to, or
no partial exercise of any right or remedy hereunder shall
constitute a waiver of any other right or remedy, or future
exercise thereof.
4.4. Severability. If any provision of this Agreement is
determined to be invalid under any applicable statute or rule of
law, it is to that extent to be deemed omitted, and the balance
of the Agreement shall remain enforceable.
4.5. Notice. All notices shall be in writing and shall be deemed
to be delivered when received by certified mail, postage prepaid,
return receipt requested, or when sent by facsimile or e-mail
confirmed by call back. All notices shall be directed to the
parties at the respective addresses given above or to such other
address as either party may, from time to time, designated by
notice to the other party.
4.6. Amendment. No amendment, change, waiver, or discharge hereof
shall be valid unless in writing and signed by both parties.
4.7. Law. This Agreement shall be governed in all respects by the
laws of the State of California without regard to its conflict of
laws provisions.
4.8. Force Majeure. If the performance of any part of this
Agreement by either party is prevented, hindered, delayed or
otherwise made impracticable by reason of any flood, riot, fire,
judicial or governmental action, labor disputes, act of God or
any other causes beyond the control of either party, that party
shall be excused from such to the extent that it is prevented,
hindered or delayed by such causes.
4.9. Entire Agreement. This Agreement constitutes the complete
and exclusive statement of all mutual understandings between the
parties with respect to the subject matter hereof, superseding
all prior or contemporaneous proposals, communications and
understandings, oral or written.
IN WITNESS WHEREOF, the parties, by their duly authorized
representatives, have executed this Agreement.
MEDIA AND XXXXXXXXXXXXX.XXX, INC. WINSONIC HOLDINGS, LTD.
By: /s/ Xxx X. Xxxxxxxx By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxx X. Xxxxxxxx Name: Xxxxxxx Xxxxxxx
Title: Executive Vice President Title: President
