EXHIBIT 10.1
AGREEMENT
This Agreement, dated as of September 29, 1999, between NetCreations.
Inc, 000 Xxxx Xxxxxxxx, Xxxxx 000, Xxx Xxxx, Xxx Xxxx (together with its
successors, assigns and affiliates, "NTCR") and Itract, LLC, 00 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx (together with its successors, assigns and affiliates
"ITL").
WHEREAS, NTCR is in the business of providing specialized op-in-bulk e-mail
listings ("Listings"), and ITL is in the business of, among other matters,
buying and reselling Listings to end-users ("ITL Customers"); and
WHEREAS, NTCR and ITL desire to provide for the purchase and resale by ITL of
the Listings on the terms and conditions hereinafter set forth.
Now, Therefore, in condition of the premises and the covenants and agreements
herein contained, the parties hereto hereby agree as follows:
1. Resale. NTCR hereby grants ITL the non-exclusive right to purchase and
resell all of its Listings to ITL Customers. At ITL's direction, NTCR
shall supply the Listings to ITL Customers directly. NTCR shall supply
ITL with daily updates of all Listings. NTCR shall also provide daily
confirmation to ITL as to delivery of Listings ordered by ITL or ITL
Customers.
2. Term. This Agreement shall commence on the date hereof, and shall
continue for three (3) years, until the third anniversary hereof.
3. Commission Schedule. In consideration for each Listing purchased and
resold by ITL to an ITL Customer, ITL agrees to pay NTCR a royalty
("Royalties") at the rates set forth on Schedule A. All payments due by
ITL hereunder shall be due within thirty (30) days after delivery of an
invoice therefor.
4. Covenants. Each party covenants to utilize their respective best
efforts to timely perform their obligations under this agreement and to
comply with all applicable laws and regulations relating to their
obligations hereunder. NTCR will take all actions necessary to ensure
that: (a) the Listings are accurate and correct; (b) the Listings are
supplied to ITL Customers within 24 hours after order; and (c) it
possesses the personnel and equipment which are necessary to provide
and maintain the Listings and services to be provided to ITL and ITL
Customers hereunder. NTCR also acknowledges and agrees that ITL has a
unique business relationship with each ITL customer and accordingly
NTCR agrees not to initiate contact with, interfere with, disrupt or
harm the relationship between ITL and ITL Customers. NTCR and ITL will
keep confidential all proprietary or non-public information it learns
about the business or activities of the other party, unless required by
law to be disclosed.
5. Representations and Warranties. Each party hereto represents and
warrants that it has the authority to enter into this Agreement and to
carry out the terms and conditions hereof, and that this agreement is
not in violation of any other agreement to which it is a party.
6. Further Assurances. Each party shall take all actions reasonably
requested by the other party in order to effectuate the purposes and
intent of this agreement.
7. Indemnification. Each party hereby agrees to indemnify and hold
harmless the other party from and against any and all damages or
deficiencies resulting from (a) any misrepresentation, or
non-fulfillment of any covenant or agreement on its part to be
performed contained this Agreement and (b) any and all actions, suits,
proceedings, demands, assessments, judgments, costs or expenses
incident to proceedings or investigations or to the defense of any
claims related to any of the foregoing.
8. Miscellaneous.
(a) This agreement represents the entire and final agreement with
respect to matters contemplated herein and supersedes any
prior oral or written representations, warranties, covenants,
agreements or undertakings by either party of any nature
whatsoever with respect to the subject matter hereof. This
Agreement shall not be amended to any extent except by a
writing executed by the parties.
(b) A waiver of any breach of any provision of this Agreement must
be in writing and shall not constitute or operate as a waiver
of any other breach of such provision or of any other
provisions, nor shall any failure to enforce any provision
hereof operate as a waiver of such provisions or of any other
provision hereunder.
(c) If any provision of this Agreement shall be held invalid or
unenforceable, such invalidity or unenforceability shall
attach only to such provision and shall not in any manner
affect or render invalid or unenforceable any other severable
provision of this Agreement, and this Agreement shall be
carried out as if any such invalid or unenforceable provision
were not contained herein.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of
the date first above written.
Itract, LLC NetCreations, Inc.
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxx Xxxxxxx, Xxxxxx X. Xxxxxxx,
Executive Vice President Vice President of Business Development
Schedule A
Agreement No. of e-mails Royalty per e-mail
Year supplied to ITL Customers supplied to ITL Customers
Year 1: Forecast 6 million e-mails
o 1-3 million 80%
o Over 3 million 75%
Year 2 and 3: Combined Forecast 30.5 million
e-mails
o 1-5 million 80%
o Over 5 million 75%
