DIGITALPOST INTERACTIVE – TRAVEL TO GO PARTNER AGREEMENT
Exhibit 99.01
DIGITALPOST
INTERACTIVE – TRAVEL TO GO
This
Partner Agreement (“Agreement”) effective as of the date of the later signature
below, (“Effective Date”) is by JD&T Enterprises, Inc. dba Travel To Go (“Partner”) with
its principal place of business at 0000-X Xxxxxx Xx, Xxx Xxxxx, XX 00000 and
DigitalPost Interactive,
Inc. (“DPI”), a Nevada corporation with its principal place of business
at 0000 Xx Xxxxxx Xxxx, Xxxxxx, XX 00000. The parties to this Agreement may be
collectively referred to hereinafter as the “Parties” or individually as a
“Party”.
The
Parties desire to enter into a business relationship in accordance with the
terms and conditions of this Agreement, and intending to be legally bound,
hereby agree as follows:
DEFINIITIONS
Customer: An individual or
entity that has acquired and activated the co-branded Travel To Go family
website (FW) service, based on the Partners sales, marketing and promotional
efforts.
Paid Activation:
A)
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A
FW Service account activation made by an existing Travel To Go Customer in
which Customers payment information has been validated and at least one
(1) payment has been successfully received from
Customer.
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B)
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A
FW Service account activation made by Partner in which Partner has
requested a FW for a new member of Partner and paid the annual
subscription as shown in Section
6B.
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FW Service: All versions of
the family website service application that is developed, hosted and provided by
DPI . The FW Service is to be co-branded using the “The Family Post” branding
with Soft Advertisements of “Travel To Go” within the administrative areas of
the FW Service and on the footer of the FW pages.
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Relationship
of the Parties. It is understood that each Party is an
independent entity. Nothing in this Agreement shall be
construed to constitute the Partner or DPI as an employee or agent of the
other or to create any rights other than the rights described in this
Agreement. This Agreement does not constitute a franchise or a joint
venture. Neither Party shall have the power to obligate the
other for any expenses or other obligation without the prior written
approval of the other Party.
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2 Sales and
Marketing.
The
Parties intend to work cooperatively to promote the FW Service. In
order to further this purpose, the Parties shall undertake those
responsibilities described in Attachment
A. The Parties agree that Attachment A may be
amended from time to time upon written consent of both Parties.
3 PARTNER
Responsibilities.
A)
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Partner
shall promote the FW Service with a 10% discount to all existing Travel To
Go members.
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B)
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Partner
shall purchase the co-branded Family Websites from DPI for new Travel To
Go Memberships. Partner shall provide DPI with the members’ name, address
and email along with payment.
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C)
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Partner
shall use its commercially reasonable efforts to actively promote and sell
the co-branded Family Website service as provided by DPI via its
website(s), email and advertising, as well as by any other manner that is
customary for Partner.
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D)
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Partner
shall provide commercially reasonable cooperation to DPI in jointly
developing marketing materials with the appropriate value proposition and
key messages that may be used to effectively promote the FW using Partners
branding to Partners client base.
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E)
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Partner
shall begin its efforts to promote the FW Service to new and existing
clients within thirty (30) days of the Effective Date of this
Agreement.
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F)
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Partner
shall obtain written approval from DPI for all marketing collateral in
which DPI is mentioned.
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4
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DPI
Responsibilities.
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A)
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DPI
shall host and maintain the co-branded FW service, and shall be solely
responsible for the content and operation of such
website.
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B)
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For
new members of Partner, DPI will release Family Websites to Partners
members within 3 business days of the website request made by Partner and
payment received by DPI.
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C)
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DPI
shall obtain prior written approval from Partner for all marketing
collateral in which Partner is
mentioned.
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D)
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DPI
shall provide a Partner-branded shopping cart on the FW Service
subscription website that will allow tracking of Customer sign ups for
revenue sharing purposes.
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E)
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DPI
shall be responsible for all billing, invoicing and fee collection from
existing Travel To Go members who choose to upgrade to the FW subscription
service.
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5
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Mutual
Responsibilities.
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A)
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Each
Party agrees to identify a coordinator with overall responsibility for
ensuring the success of the relationship. Coordinators can be
changed by their respective employers in the sole discretion of the
employer.
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B)
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The
Parties shall use their commercially reasonable efforts to conduct ongoing
marketing and planning initiatives as mutually deemed appropriate, to
review strategies, direction, and customer
requirements.
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6
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COMPENSATION
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A)
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Subscription Revenue Share
(Existing Travel To Go Members). Partner agrees to refer existing
Members / Customers to the co-branded FW Service; DPI agrees to pay
Partner forty percent (40%) of the ongoing monthly net fees received by
DPI for active, paying Customer Subscriptions during the Term of this
Agreement. Upon cancellation of the Agreement by either Party, for a
period of 90 days DPI shall continue to pay the Partner forty percent
(40%) of the net fees received by DPI for active, paying Customer
Subscriptions that were generated through the efforts of the Partner
during the term of this Agreement.
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B)
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FW Service Wholesale Pricing
(New Travel To Go Members). Partner will purchase Family Websites
for new members of Travel To Go. DPI agrees to provide Premium website
packages with unlimited photo and video storage to Partners members for
the annual wholesale price of $60 (Volume discount included). The Classic
website service will be priced at $40 dollars (volume discount included)
and the Standard website service will e priced at $26 (volume discount
included).
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C)
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Photo Merchandise Gross Revenue
Share. DPI agrees to pay Partner fifteen percent (15%)
of the gross revenue from photo merchandise sold via the co-branded FW
service. This is further defined as the gross revenues generated by DPI on
all photo-related products that are sold through the private label FW
during the Term of this Agreement. Upon cancellation of the Agreement by
either Party, for a period of 90 days DPI shall continue to pay the
Partner fifteen percent (15%) on Photo Merchandise purchased through a FW
subscription previously generated through the efforts of the Partner
during the term of this Agreement
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Payment. In the
case of A) DPI shall pay Partner on or about the 15th day of
the calendar month following completion of successful Customer Paid
Activations. In the case of B) Partner shall pay DPI for all websites
requested upon the request of activation. DPI agrees to deliver websites within
3 business days of the date that websites are requested and that payment has
been received.
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TERM AND
TERMINATION
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This
agreement shall commence on the Effective Date and shall continue in force for
two (2) years subject to termination as provided below. Following
this period, Agreement shall automatically renew for successive one (1) year
terms unless either Party elects by written notice to terminate the Agreement
with 60 days written notice prior to renewal period.
Termination. Prior
to first renewal period, either Party may terminate this Agreement upon ninety
(90) days written notice to the other Party.
Rights Upon
Termination. Upon termination of this Agreement, each Party
shall return or destroy the other Party’s confidential information, cease any
use of the other Party’s name, products or services, or product literature, and
terminate any links from its website(s) any description, review or other
reference to either Party’s website(s); provided that the terms of the
confidentiality agreement between the Parties shall survive termination of this
Agreement according to its terms.
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SERVICE LEVEL
GUARANTEE
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Coverage. DPI’s
service level guarantee applies to any Customer that has at least one uploaded
photo album within FW at the time of a service outage. No
change
Service Level
Specifications. DPI endeavors to have the FW Service available
for http access in any part in the world 99.5% of the time. Network
downtime (unavailability) shall be d efined as one hundred percent (100%) packet
loss and shall be measured on a monthly basis. Downtime is measured
beginning ten (10) minutes after DPI is verbally notified of the downtime by
phone. Reports of network downtime via email or fax are not accepted
under the Agreement. DPI’s administrators shall determine the end of
the downtime by a trace route to the affected computer.
Credits. For every
sixty (60) minutes of continuous downtime in excess of DPI’s 99.5% monthly
uptime guarantee, Customer will be entitled to a ten percent (10%) credit of the
monthly service fees, with the maximum credit not to exceed fifty percent (50%)
of the monthly service fees for the affected month. In order to
receive a credit, a credit request must be made within seven (7) days after the
downtime was experienced. Monthly service fee credit shall be the
sole and exclusive remedy in the event of downtime.
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Restrictions. Credits
shall not be provided in the event that downtime results from any of the
following: i) Scheduled and emergency maintenance and upgrades;
ii) Partner or Customer behavior or failure of Partner or Customer’s
equipment, facilities or applications; or iii) Reasons of Force
Majeure as defined below.
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CUSTOMER
SERVICE. For issues
relating to FW Service, DPI will provide customer support via phone and
e-mail Monday – Friday from 8:00am – 5:30pm PST, and via e-mail Saturday -
Sunday from 9:00am – 5:00pm PST. Customer service needs, including the
expansion of support hours, will be constantly evaluated and modified upon
mutual agreement of both Parties.
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CONFIDENTIALITY Neither Party (the
“Recipient”) shall disclose to any third party or use for its own benefit
the other Party’s (the “Discloser”) proprietary or confidential
information except as authorized by the Discloser. All
confidential information of the Discloser shall remain the sole property
of the Discloser. This provision does not apply to information
which the Recipient lawfully receives from a third party having no
obligation of confidentiality or which the Recipient independently
develops. Each Party represents that each of its employees
having access to the other’s confidential information will, prior to
receiving such information from the Recipient, have executed a customary
non-disclosure agreement with the Recipient. These restrictions
and obligations shall remain in effect for a period of three (3) years
from the date this Agreement is terminated or
expires.
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12
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NON-EXCLUSIVITY
This Agreement does not impose upon either Party an obligation to
exclusively work with the other in any aspects of marketing related to
their respective products and services, or to participate exclusively in
any particular marketing effort proposed by the other. Subject
only to compliance with the terms of a confidentiality agreement between
them with respect to confidential information, the Parties agree they may
engage in marketing efforts with third Parties, even if such marketing
efforts conflict with the subject matter of this Agreement or compete with
the other Party’s products or
services.
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INTELLECTUAL
PROPERTY This Agreement
does not constitute a license, express or implied, by either Party to the
other Party to make, have made, use, reproduce, distribute, display or
perform any of such Party’s intellectual property rights, including but
not limited to patents, copyrights, trademarks or trade
secrets. All rights not expressly granted to either Party by
the other in this Agreement are reserved by such other
Party.
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TRADEMARKS AND
TRADENAMES
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Rights in
Trademarks. Both Parties acknowledge that the other Party is
the owner of all right, title and interest in and to its name and certain
related designs associated therewith (“Trademarks”), together with any new or
revised names or materials which the Trademark owner may adopt to identify it or
any of its Services during the Term, and each Party agrees not to adopt or use
any of the other Party’s Trademarks in any manner whatsoever except as expressly
provided in this Agreement.
License to Use
Trademarks. Each Party hereby grants to the other Party a
non-exclusive license during the Term to use their Trademarks, provided that
they are used solely in connection with the marketing of their Services and in
accordance with the Trademark owner’s specifications as to style, color and
typeface. Upon expiration or termination of this Agreement, each
Party will take all action necessary to transfer and assign to the Trademark
owner, or its nominee, any right, title or interest in or to any of the
Trademarks, or the goodwill related thereto, which the non-Trademark owner Party
may have acquired in any manner as a result of the marketing of the Trademark
owner’s Services under this Agreement and shall cease to use any Trademark of
the other Party. Each Party hereby agrees to notify the other Party
immediately if any infringement or potential infringement of any Trademark is
made known to the notifying Party.
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WARRANTY AND LIMITED
LIABILITY
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DPI shall
furnish Customer with its standard warranty in effect at the time, if any,
covering the FW Service. Such warranty shall run exclusively to the
Customer, and not to the Partner.
DPI shall
not be liable to the Partner for loss incurred by the Partner arising from DPI’s
inability to deliver the FW Service due to strike, riot, work stoppage, shortage
or unavailability of product or material, act of government, act of God, war, or
any other cause beyond the control of DPI.
DPI MAKES
NO WARRANTY TO THE PARTNER WITH RESPECT TO THE FW SERVICE OF ANY KIND, EXPRESS
OR IMPLIED. THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE AND NON-INFRINGEMENT ARE HEREBY DISCLAIMED. THIS
PROVISION SHALL SURVIVE TERMINATION OR EXPIRATION OF THIS
AGREEMENT.
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NEITHER
PARTY, UNDER ANY CIRCUMSTANCES, SHALL BE LIABLE TO THE OTHER PARTY FOR
DAMAGES OF ANY NATURE, WHETHER DIRECT OR INDIRECT, INCIDENTAL,
CONSEQUENTIAL OR SPECIAL, INCLUDING, BUT NOT LIMITED TO LOST PROFITS, LOSS
OF GOODWILL, OR FOR EXPENDITURES MADE OR COMMITTED TO BY THE OTHER PARTY
IN RELIANCE UPON CONTINUATION OF THIS AGREEMENT, EVEN IF THE PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS PROVISION SHALL
SURVIVE TERMINATION OR EXPIRATION OF THIS
AGREEMENT.
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Notices.
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All
notices by either Party given under this Agreement shall be in writing and shall
be hand delivered or sent certified mail, return receipt requested or by
overnight courier. Notice may be given by facsimile if confirmed in
writing by first class mail, postage pre-paid or by overnight
courier. Notices to each Party shall be given at their respective
addresses first above written.
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Assignment.
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Neither
Party shall assign any of its rights, interests or obligations under this
Agreement to a third party without the other Party’s prior written
consent.
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Applicable
Law.
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This
Agreement shall be governed by and construed according to the laws of the State
of Nevada.
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Severability.
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Any
provision of this Agreement which is adjudged to be illegal, invalid or
unenforceable in any respect shall not affect any other provision of this
Agreement and the balance of the Agreement shall continue in full force and
effect.
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Entire
Agreement.
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This
Agreement, including any Attachments hereto, supersedes all other agreements and
representations, express or implied, written or oral, between the Parties with
respect to the subject matter of this Agreement. This Agreement shall
not be changed or modified except in a writing signed by duly authorized
personnel of each Party.
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Headings.
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The
sections and paragraph headings used in this Agreement are inserted for
convenience only and shall not affect the meaning or interpretation of this
Agreement.
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Force
Majeure.
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Neither
Party shall be liable for any failure or delay in its performance under this
Agreement due to causes, including, but not limited to, an act of God, act of
civil or military authority, fire, epidemic, flood, earthquake, riot, war
sabotage, labor shortage or dispute, and governmental action, which are beyond
its reasonable control.
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Publicity
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Subject
to the other
party’s approval, which shall not be unreasonably withheld, either Party may issue a press
release or make statements to the press or general public regarding this
Agreement or in the case as required by law or regulation, either party may
issue a press release or make statements to the general public as required
without the express permission of the other party.
IN WITNESS WHEREOF, the
Parties have executed this Agreement as of the Effective Date.
DigitalPost
Interactive. –
Fax: 000.000.0000 Partner- Travel To
Go
By: /s/
Xxxxxxx Xxxxxxx By: /s/ Xxxxxxxx
Xxxx
Printed
Name: Xxxxxxx
Xxxxxxx Printed Name: Xxxxxxxx Xxxx
Title: President /
CEO
Title: President /
CEO
Date: 9/12/08 Date: 9/12/08
ATTACHMENT
A
RESPONSIBILITIES OF THE
PARTIES
GENERAL
1.
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Each
Party agrees to identify a coordinator with overall responsibility for
ensuring the success of the relationship. Coordinators can be
changed, by their respective employers, at the sole discretion of the
employer.
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2.
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The
Parties shall use reasonable efforts to conduct ongoing marketing and
planning initiatives as mutually deemed appropriate, to review strategies,
direction, and customer
requirements.
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PARTNER
RESPONSIBILITIES
1.
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Understanding
that the success of this relationship is based upon best efforts made to
market the FW service to its online audience and through other channels,
Partner shall make such best efforts to actively promote and sell the
co-branded Family Website service, provided by DPI via its website(s),
email and advertising, as well as by any other manner that is customary
for the Partner.
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2.
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Partner
shall cooperate with DPI in jointly developing marketing with the
appropriate value proposition and key messages to be used to effectively
promote the FW using Partners logo to Partners client
base.
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3.
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Partner
shall begin promoting the FW on Partners website(s) within 30 days of the
Effective Date of this Agreement.
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4.
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Partner
shall obtain written approval from DPI for all marketing collateral in
which DPI or TFP is mentioned.
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DPI
RESPONSIBILITIES
1.
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DPI
shall host and maintain the co-branded Family Website
service.
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2.
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DPI
will allow for Soft Advertising within the co-branded FW service within
the Qwik-Post (administrative) area of the websites and on the footer of
the websites (all pages).
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3.
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DPI
shall obtain written approval from Partner for all marketing collateral in
which Partner is mentioned.
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4.
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DPI
shall provide Partner with a branded shopping cart that will allow
tracking of Customer sign ups for revenue sharing purposes. Existing
members of Partner will receive a 10% discount for their subscription the
first year.
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5.
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DPI
shall be responsible for all billing, invoicing and fee collection from
Customers who choose to upgrade to the FW subscription
service.
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