CUSTOMIZED E-MAIL SERVICE AGREEMENT
THIS CUSTOM E-MAIL SERVICE AGREEMENT (the "Agreement") is entered into as of
March 22, 1999 (the "Effective Date') between Arrow Communication Systems
Inc. "'ACS"), a British Columbia corporation with offices at 000 - 00000
Xxxxxxxx Xxxx, Xxxxxxxxxx, XX, and Global Business Information Directory
(the "Business Partner"), a COLORADO COMP offices at 000 0xx Xxxxxx, Xxxxx
0000, Xxxxxxx, Xxxxxxxxxx 00000.
A. ACS has developed a turnkey solution for web-based e-mail
products and services, which it can privately label and customize to the
Business Partner's own "look and feel" and other requirements.
B. ACS desires to deliver to the Business Partner a customized e-mail
service for the web site of the Business Partner located at
xxx.xxxxxxxxx.xxx , or a successor site (the "Business Partner Web Site"),
on the terms and conditions provided in this Agreement.
In consideration of the promises and the mutual covenants contained herein,
the parties hereby agree as follows:
1. DEFINITIONS.
Terms used in this Agreement which are capitalized shall have the
definitions set forth below or elsewhere in this Agreement. References to
Sections or Exhibits refer to Sections of, or Exhibits to, this Agreement.
1.1 "Advertisement Inventory" means the amount of space in the user
interface of the Custom Email Service available for advertising multiplied
by the number of pages actually seen by End Users.
1.2 "Advertisements" means advertising banners, sponsorships and
other advertising displayed on Custom Email Service pages.
1.3 "Artwork" means the artwork, logos, text, graphics and other trademarks
of the Business Partner to be used by ACS in developing the Custom E-mail
Service.
1.4 "Custom E-mail Service" means ACS's web-based e-mail product as
customized for use by the Business Partner.
1.5 "End User" means an end user of the Custom E-mail Service who
has been registered with ACS as using the Custom E-mail Service accessed via
the Business Partner Web Site.
1.6 "House Advertisements" means advertising banners and other advertising
promoting the business of ACS and the Business Partner and/or their affiliates.
1.7 "Links" means hyper-text Internet Links from the Business Partner
Web Site to the Custom Email Service.
1.8 "Net Advertising Revenue" means gross revenue received by ACS for
Advertisements (including sponsorships) that are delivered through the
Custom E-mail Service or on the login page to the Custom E-mail Service,
less agency fees and third-party sales commissions, excluding House
Advertisements to the extent permitted by this Agreement.
1.9 "Premium Services" means e-mail and other communication products or
services offered by ACS within the Custom E-mail Service.
1.10 "User Data" means the demographic information, names and e-mail
addresses of the End Users.
2. DESIGN AND DELIVERY OF E-MAIL SERVICE.
2.1 Artwork. At least 15 days prior to the agreed upon launch date,
the Business Partner shall deliver to ACS Artwork that conforms to ACS
technical specifications.
2.2 Launch. Both parties shall use co1e onable best efforts to
launch the Custom E-mail Service by March 22, 1999.
3. OPERATION AND PROMOTION OF THE CUSTOM E-MAIL SERVICE.
3.1 HOSTING OF CUSTOM E-MAIL SERVICE; SERVING OF ADVERTISEMENTS.
(a) ACS shall host the Custom E-mail Service and shall bear the
costs of hosting the Custom Email Service.
(b) ACS shall deliver or cause to be delivered all Advertisements to
or through the Custom Email Service, except where this right and obligation
is specifically conferred upon the Business Partner below.
3.2 LINKS. The Business Partner shall place and maintain during the
term of this Agreement Links to the Custom E-mail Service on prominent
places on the Business Partner Web Site's home page and at least four other
frequently visited sections of the Business Partner Web Site.
3.3 PROMOTION. The Business Partner shall, during the term of this
Agreement, actively promote the Custom E-mail Service on the Business
Partner Web Site and in other media in order to attract End-Users to
register for the Custom E-mail Service. The Business Partner shall mention
ApexMail and the Custom E-mail Service in any major advertising or
promotional campaigns with respect to the Business Partner, and in the
"boilerplate" credits in any press releases relating to the Business Partner
Web Site.
3.4 REPRESENTATIONS. The Business Partner shall not make any
representations or warranties concerning the Custom E-mail Service beyond
those expressly made IN WRITING by ACS, and shall not misrepresent the
Custom E-mail Service or the performance or functionality thereof.
3.5 DOMAIN NAMES; BUSINESS PARTNER WEB SITE. The Business Partner
shall provide to ACS the domain names and URLs for the web site that will be
used for the Custom E-mail Service. Business Partner shall bear the costs
and expenses related to the acquisition of the domain names and URLs for
such web site.
3.6 MAINTENANCE OF SYSTEMS. ACS shall use commercially reasonable
efforts to maintain or cause to be maintained the hardware, software and
systems required for the hosting and operation of the Custom E-mail Service.
3.7 CUSTOMER SUPPORT. ACS shall use commercially reasonable efforts
to provide customer support through e-mail to End Users on a daily basis.
4. REVENUES.
4.1 REVENUES FROM ADVERTISEMENT
4.1.1 SALE OF ADVERTISING AND SPONSORSHIPS BY ACS. ACS shall, through
its network of advertising agencies, use commercially reasonable efforts to
sell Advertisements (including sponsorships) for the Custom E-mail Service.
4.1.2 ADVERTISING REVENUES GENERATED FROM THE CUSTOM E-MAIL SERVICE.
ACS shall pay to Business Partner, in the manner provided in Section 5.2,
twenty percent (20%) of Net Advertising Revenue generated by the Business
Partner Custom E-mail Service.
4.1.3 House Advertisements. During each calendar month of the term of this
Agreement, the Business Partner and ACS each shall be permitted to place
House Advertisements on the Custom E-mail Service at no cost, provided that
InHouse Advertisements placed by either party shall not exceed five percent
(5%) of the total E-mail Advertisement Inventory in any calendar month.
4.2 REVENUES FROM PREMIUM SERVICES
4.2.1 PREMIUM SERVICE REVENUES. ACS shall have the right to offer and
sell to End Users of the Custom E-mail Service the Premium Services listed
in Exhibit A. ACS will, with Business Partner's prior approval, also have
the right to offer to End Users other Premium Services not listed in Exhibit
A, such approval not to be unreasonably withheld.
4.2.2 REVENUES GENERATED FROM PREMIUM SERVICES. ACS shall retain for
its own use all of the Premium Service Revenue collected by ACS.
5. PAYMENTS; REPORTS.
5.1 REPORTS. Within thirty (30) days after the last day of each
calendar month during the term of this Agreement, ACS shall provide Business
Partner with a written report setting forth (I) the Custom E-mail Service
Net Advertising Revenue generated by ACS during such month, and (ii) the
Custom E-mail Service Gross Advertising Revenue generated by ACS during the
month.
5.2 Payments. Within seventy (70) days after the last day of each calendar
month during the term of this agreement, ACS shall provide Business Partner
with payment of Business Partner's portion of the Custom E-mail Service Net
Advertising Revenue as specified in section 4.1.
5.3 AUDIT OF REPORTS. Each party will maintain complete and accurate books
and records sufficient to prepare accurate reports as required by Section
5.1. ACS and the Business Partner each shall have the right to cause such
books and -records to be audited by an independent certified public
accountant in the U.S., or an independent chartered accountant in Canada,
selected by the requesting party. Any such audit shall be performed on seven
(7) days written notice, at the expense of the requesting party, during
normal business hours, no more frequently than once in a twelvemonth period,
and in such a manner as to avoid unreasonable interference with normal
business operations, provided, however, that if any such examination reveals
an underpayment to the requesting party of more than five percent (5%) of
the total payment due for any quarter, then the examined party shall pay the
costs of such examination.
5.4 Taxes. Amounts to be paid by either party shall be exclusive of, and the
party making such payments shall be responsible for, any sales, use, excise,
value-added or similar taxes (other than taxes on the net income of the
other party).
6. OWNERSHIP OF INTELLECTUAL PROPERTY; LICENSES.
6.1 BUSINESS PARTNER OWNERSHIP. As between the parties, the
Business Partner shall own and retain all right, title and interest in and
to the Artwork, the Business Partner Web Site and the domain names and URLs
for the Domestic Custom E-mail Service. ACS and the Business Partner shall
co-own the User Data. The provisions of this Section 6.1 are subject to the
licenses granted to ACS under this Agreement.
6.2 ACS OWNERSHIP. As between the parties, ACS shall own and retain all
right, title and interest in and to the Custom E-mail Service and Premium
Services. The Business Partner and ACS will co-own the User Data. The
provisions of this Section 6.2 are sub ect to the rights of the Business
Partner j set forth in Section 6.1 and the licenses covering the Custom
E-mail Service granted to the Business Partner under this Agreement.
6.3 LICENSE TO THE BUSINESS PARTNER. Subject to all of the terms and
conditions of this Agreement, ACS hereby grants to the Business Partner a
nonexclusive, nontransferable, limited license to provide the End Users
with access to the Custom E-mail Set vice by, means of the Links.
Ile access of End Users to the Custom E-mail Service shall be
subject to the terms of an end user license provided by ACS. The Business,
Partner. SHALL not remove or alter any such end user license or. other
notices relating to ACS's limitation of its liability and waiver
of warranties that are generated during access or use of the Custom Email
Service.
6.4 License to ACS. The Business Partner hereby grants to ACS a
nonexclusive, nontransferable (except as provided in Section 3.1 (a))
worldwide license (a) to use the Artwork for the purpose of designing,
developing and operating the Custom E-mail Service, (b) to use the domain
names and URLs provided by the Business Partner to ACS pursuant to Section
3.5, (C) to use the User Data for the purpose of (i) the development of
Premium Services and promotion of goods and services to the End Users, and
(ii) otherwise in connection with the performance of its rights and duties
under this Agreement, and (d) to sublicense such right to a party to which
performance of ACS's obligations may be delegated under Section 3.1 (a). In
addition, the Business Partner hereby grants to ACS a nonexclusive,
nontransferable, worldwide license and right to use aggregate information
based upon User Data, without identifying any such User or the Business
Partner, solely in connection with the marketing of its services to
potential business partners of ACS.
6.5 Reservation of Rights. As between the parties, any rights to
the Custom E-mail Service and the Premium Services not expressly granted
hereunder to the Business Partner are reserved to ACS, and any rights to the
Artwork, the domain names and URLs and the User Data -not expressly granted
hereunder to ACS are reserved to the Business Partner.
7. CONFIDENTIALITY.
Each party shall be entitled to disclose the existence of this Agreement but
agrees that the financial terms of this Agreement shall be treated as
confidential and shall not be disclosed to any other party; provided,
however, that each party may disclose the financial terms of this Agreement
(a) as required by a court or other governmental body, or as otherwise
required by law, (b) in confidence, to its legal counsel, accountants,
banks, and current and prospective financing sources and their advisors, or
in connection with an actual or proposed merger or acquisition, or (C) in
connection with the enforcement of its rights under this Agreement.
8. REPRESENTATIONS AND WARRANTIES.
ACS and the Business Partner each represent and wan-ant to the other party
that:
(a) such party is an entity duty organized, validly existing
and in good standing in the, jurisdiction of its formation;
(b) such party has full authority to enter into this Agreement,
to grant the rights granted herein, and to perform the obligations assumed
hereunder; and
(C) this Agreement, when executed by both parties, represents
such party's valid and binding obligation, enforceable against it in
accordance with its terms, subject to certain general legal enforceability
exceptions.
9. LIMITATIONS.
9.1 LIMITED WARRANTY BY ACS. Pursuant to the end-user license to be
distributed to EndUsers, ACS makes a limited warranty to the End-Users.
EXCEPT FOR THE FOREGOING WARRANTIES, ACS MAKES NO OTHER WARRANTIES, EXPRESS
OR IMPLIED, WITH RESPECT TO ANY SERVICES PROVIDED UNDER THIS AGREEMENT, AND
ACS SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS REGARDING ANY
SERVICES PROVIDED UNDER THIS AGREEMENT, INCLUDING ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT.
9.2 LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE
OTHER FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES,
HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, ARISING OUT OF THIS
AGREEMENT, WHETHER OR NOT SUCH PARTY IS ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED
REMEDY. IN ANY CASE, ACS SHALL NOT BE LIABLE FOR ANY DAMAGES IN ANY
TWELVE-MONTH PERIOD IN EXCESS OF THE AMOUNTS PAID BY THE BUSINESS PARTNER TO
ACS UNDER SECTION 5.2 FOR SUCH TWELVE-MONTH PERIOD.
10. TERM AND TERMINATION.
10.1 TERM. The term of this Agreement shall commence on the Effective
Date and shall continue until the second anniversary of the Effective Date,
unless earlier terminated as provided in Section 10.3.
10.2 RIGHT OF FIRST REFUSAL. If Business Partner shall receive any
offer from any third party to provide any e-mail service to Business Partner
or to the End Users, it shall notify ACS of such offer and grant ACS the
exclusive right for 30 days from such notification to match the, terms and
conditions of such offer from said third party.
10.3 TERMINATION. This Agreement may be terminated:
(a) by either party upon a material breach by the other party of
any representation, covenant., warranty or term of this Agreement that is
not cured within thirty (30) days after written notice thereof by the
non-breaching party; provided that the cure period provided in this Section
10.3(a) shall be fifteen (15) days after written notice thereof by the
non-breaching party in the event of a breach of an obligation to make a
payment as and when required by this Agreement; or
(b) by either party in the event that (i) the other party files
a petition for bankruptcy or is adjudicated a bankrupt, (ii) a petition in
bankruptcy is filed against the other party, (iii) the other party becomes
insolvent or makes an assignment for the benefit of its creditors or an
arrangement for its creditors pursuant to any bankruptcy law, (iv) an action
is instituted by or against the other party seeking its dissolution or
liquidation of such party's assets or seeking the appointment of a trustee,
interim trustee, receiver or other custodian for such party's property or
business and such action is not dismissed within ninety (90) days after the
date upon which it was instituted; or (v) a receiver is appointed for the
other party or its business.
10.4 EFFECT OF TERMINATION. Upon termination of this Agreement the
Business Partner shall remove the Links and otherwise discontinue use of the
Custom E-mail Service on the Business Partner Web Site. However, Business
Partner shall continue to be entitled to receive, and ACS shall continue to
pay to the Business Partner the amounts owing to the Business Partner up to
the date of termination pursuant to Section 4. 1. Termination of this
Agreement shall not act as a waiver of any breach of this Agreement or as a
release of either party from any liability for breach of such party's
obligations under this Agreement.
10.5 Survival. The provisions of Sections 1, 3.5, 4, 5, 6.1, 6.2,
6.5, 7, 8, 9, 10.3, 11 and 12 shall survive any expiration or termination of
this Agreement.
11. INDEMNIFICATION.
11.1 INDEMNIFICATION BY THE BUSINESS PARTNER. The Business Partner
will defend, indemnify and hold harmless ACS, its successors, assigns,
parent, subsidiaries, affiliates, and their respective officers, directors,
agents and employees, from and against any action, suit or claim (including
reasonable attorneys' fees) arising out of or in any way connected with (a)
the Artwork, including any claim that the Artwork-, or any part thereof,
infringes any intellectual property rights or other rights of any third
party, (b) the Advertisements or ad copy provided by the Business Partner,
(C) the domain names and URLs provided to ACS, and (d) any breach by the
Business Partner of the covenants, warranties, representations or agreements
of this Agreement. ACS will give the Business Partner prompt notice of any
such claim or threatened claim.
11.2 INDEMNIFICATION BY ACS. ACS will defend, indemnify and hold
harmless the Business Partner, its successors, assigns, parent,
subsidiaries, affiliates, and their respective officers, directors, agents
and employees, from and against any action, suit or claim (including
reasonable attorneys' fees) arising out of or in any way connected with (a)
any claim that the Custom E-mail Service, or any part thereof, infringes any
intellectual property rights or other rights of any third party, except to
the extent that such claim arises out of the inclusion in the Custom E-mail
Service of the Artwork, (b) the Advertisements or ad copy provided by ACS,
and (C) any breach by ACS of the covenants, warranties, representations or
agreements of this Agreement. The Business Partner will give ACS prompt
notice of any such claim or threatened claim.
11.3 PROCEDURE. The indemnified party will: (a) promptly notify the
indemnifying party of any claim, suit or proceeding for which defense or
indemnity is claimed; (b) cooperate reasonably with the indemnifying
party at the latter's expense; and (C) allow the indemnifying
party to control the defense or settlement thereof, provided, however, that
the indemnifying party may not consent to entry of any judgment or enter
into any settlement without the prior written consent of the indemnified
party (which consent shall not be unreasonably withheld or delayed),
unless such judgment or settlement provides solely for money damages or
other money payments which the party actually pays on behalf of the indemnified
party and includes as an unconditional term thereof a release of the
indemnified party from all liability in respect of the claim, suit or
proceeding giving rise to the claim for indemnification. The indemnified
party will have the right to participate in any defense of a claim and/or
to be represented by counsel of its own choosing at its own expense.
12. GENERAL PROVISIONS.
12.1 Governing Law. This Agreement shall be governed by and
construed under the laws of the Province of British Columbia and Canada
(excluding the U.N. Convention on Contracts for the International Sale of
Goods) without regard to conflict of laws principles. In any action or
proceeding to enforce rights under this Agreement the prevailing party shall
be entitled to recover costs and attorneys' fees.
12.2 Assignment. Except as otherwise expressly provided in this
Agreement neither party may transfer or assign its rights or its obligations
whether voluntariuly or by operation
unreasonably, provided that each party shall have the right to transfer this
Agreement, and assign all of its rights and delegate all of its obligations
hereunder, to any affiliate, and to any successor by way of merger or
consolidation or in connection with the sale or transfer of substantially
all of its business and assets relating to this Agreement.
12.3 Notices. All notices under this Agreement shall be in writing
and delivered personally or by facsimile, commercial overnight courier, or
certified or registered mail, return receipt requested, to a party at its
respective address set forth herein.
12.4 Entire Agreement. This Agreement sets forth the entire
agreement and understanding of the parties relating to the subject matter
herein and merges and supersedes all prior discussions between them. No
modification of or amendment to this Agreement, nor any waiver of arty
rights under this Agreement, shall be effective unless in writing signed by
the party against whom it is to be enforced. Nothing express or implied in
this Agreement is intended to confer, -nor shall anything herein confer,
upon any person other than the parties and the respective successors or
permitted assigns of the parties, any rights, remedies, obligations or
liabilities whatsoever.
12.5 Severability. If the application of any provision or provisions
of this Agreement to any particular facts or circumstances shall be held to
be invalid or unenforceable by any court of competent jurisdiction, then:
(i) the validity and enforceability of such provision or provisions as
applied to any other particular facts or circumstances and the validity of
other provisions of this Agreement shall not in any way be affected or
impaired thereby; and (ii) such pro irision or provisions shall be reformed
without further action by the parties hereto and only to the extent
necessary to make such provision or provisions valid and enforceable when
applied to such particular facts and circumstances.
12.6 INDEPENDENT CONTRACTORS. The parties are independent
contractors, and nothing in this Agreement shall be construed to create a
joint venture or partnership.
12.7 FORCE MAJEURE. A party will not be deemed to have materially
breached this Agreement to the extent that performance of its obligations or
attempts to cure any breach are delayed or prevented by reason of an act of
God, fire, natural disaster, accident act of government, shortage of
equipment, materials or supplies beyond the reasonable control of such
party, or any other cause beyond the reasonable control of that party (a
"FORCE MAJEURE EVENT); provided that the party whose performance is delayed
or prevented promptly notifies the other party of the nature and duration of
the force majeure event.
12.8 COMPLIANCE WITH LAWS. Each party shall comply with all laws and
regulations applicable to it.
12.9 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed
an original, and such counterparts together shall constitute one and the
same instrument. For purposes hereof, a facsimile copy of this Agreement,
including the signature pages hereto, shall be deemed to be an original.
12.10 EXHIBITS. The following Exhibit is attached to this Agreement and
incorporated herein by reference.
Exhibit A Premium Services
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as
of the Effective Date by the undersigned duly authorized.
GLOBAL BUSINESS INFORMATION DIRECTORY ARROW COMMUNICATIONS SYSTEMS, INC.
By: /s/Xxxxxxx Xxxxxxxxxx By: /s/Gilles Lepace
Name: XXXXXXX XXXXXXXXXX Name: GILLES LEPACE
Title: President/CEO Title: President/CEO
EXHIBIT A
PREMIUM SERVICES
1. Off-line E-mail Client Interface
Permits web e-mail subscribers to read, compose and send e-mail messages
using the familiar user interface of their favorite off-line, PC-resident
e-mail client software-like Microsoft Outlook or Eudora. Off-line
clients minimize telephone connect time when subscribers are working
on lengthy e-mail correspondence.
1. Auto-responder Upgrade Four extra auto-respnders are made available that
can be configured by the member to reply with automatic messages to incoming
e-mail.
3. Filter Upgrade
Ten extra filters are made available that can be used to direct incoming
messages to specific folders, based on user-selected criteria.
4. Account Forwarding Upgrade
The member can forward e-mail to up to five (5) other accounts. The e-mail
message can be deleted at the current account at the same time.
5. Multiple Signatures
The member can choose, and use, up to three (3) extra signatures in his/her
e-mail correspondence.
6. No Banner Ads
No banner ads will be seen on the Web interface of the premium ("Platinum")
account.
7. No Text Ads
No text ads Will be seen in outbound e-mail.
