WEB SITE COMPANY FORMATION DEVELOPMENT AND SERVICES AGREEMENT
DEVELOPMENT
AND SERVICES AGREEMENT
THIS
AGREEMENT (the “Agreement”)
is entered into as of December 2005 by and between Ocean-7 Development, Inc.,
a
New York corporation “OCEAN”)
and DAG Media, Inc., a New York corporation (“DAGM”).
Capitalized terms used in this Agreement and not defined herein shall have
the
meanings ascribed to such terms in this Agreement..
RECITALS
WHEREAS,
DAGM is a publicly traded corporation engaged in the business of publishing
and
distributing yellow pages classified business telephone directories;
and
WHEREAS,
OCEAN
is a
privately held publishing/technology corporation engaged in the business of
providing full-service programming and specializes in web and database
solutions; and
WHEREAS,
XXXX XXXXXXXX
(“XXXX”)
is
an
OCEAN
shareholder and an executive and key professional at OCEAN;
and
WHEREAS,
XXXXXX XXXXX (“XXXXXX”) is a majority shareholder at OCEAN; and
WHEREAS,
DAGM desires to launch a new subsidiary (“NEWCO”) to focus on an online referral
service; and
WHEREAS,
DAGM desires to cooperate and partner with OCEAN for purpose of forming NEWCO,
developing its business and launching it business;
NOW,
THEREFORE, in consideration of the mutual promises and covenants set forth
below, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, DAGM
and
OCEAN
intending to be legally bound, hereby agree as follows.
1
1.
FORMATION
OF NEWCO
On
or
before December 5, 2005 DAGM will establish NEWCO under the Delaware Corporation
Law by filing a certificate of incorporation with the Secretary of State of
Delaware. Immediately after incorporation, DAGM shall hold an organization
meeting to adopt bylaws, elect directors, elect officers and to transact any
other business necessary or appropriate under this Agreement. After
incorporation, NEWCO’s Board of Directors shall issue shares of capital stock to
DAGM and OCEAN in the percentages described in Paragraph 3.3, in exchange for
the consideration described in this Agreement; provided that these shares shall
be deemed fully paid and non assessable upon issuance. The parties hereto agree
that the form on NEWCO’s certificate of incorporation and bylaws shall be
determined by DAGM, but in any event, for as long as this Agreement is in effect
and NEWCO is in existence, NEWCO shall be governed by the following provisions:
(a) NEWCO’s Board of Directors will be comprised of at least 2 individuals; and
(b) DAGM, as incorporator or shareholder, agrees to elect XXXX as one of the
directors of NEWCO for as long as NEWCO is in existence and OCEAN is providing
Services (as defined below) to NEWCO.
2.
SCOPE
OF SERVICES
OCEAN
will provide NEWCO with professional
services
as outlined below:
2.1
Until
production release of the web site,, OCEAN shall provide professional services
including: (i) development; (ii) programming; (iii) specifications; (iv) design
implementations; (v) testing; and (vi) hosting (as described in Statement of
Work) resulting in the production availability of NEWCO's referral web service
(description of which is set forth in Statement of Work) and allowing the
commercial functionality for end-users to interact with the service and support
potential high capacity nationwide use, including large numbers of transactions
and large scale revenues. Support for this high capacity usage will require
a
hardware environment to be specified by Ocean. The referral service experience
by end users will conform to a reasonable industry standard of other offerings
on the Internet. The services shall be deemed to have satisfied the above
requirements and be complete, delivered and accepted by NEWCO upon the full
functionality of the web site according to the specifications set forth in
Statement of Work and the web site being commercially used and there have been
200 successfully processed consumer requests. Acceptance as provided under
this
Paragraph may not be revoked in whole or in part without the written consent
of
OCEAN.
2.2
OCEAN
will provide
comprehensive
support
and
maintenance
services
and hosting for
the
web site (as described in Statement of Work) for
2
consecutive months after completion of Services and acceptance by
NEWCO
of the
web site developed under Statement of Work. Except as provided in Paragraph
8.4,
OCEAN will provide such support services as part of the Services and at no
additional charge to NEWCO.
2
2.3
At
the
expiration of the initial 2 month support period, NEWCO will pay for its own
support and maintenance expenses while XXXX will supervise, advise and consult
NEWCO at no cost for as long as OCEAN has outstanding options that have not
been
vested pursuant to section 3.2 below. If services of independent contractors
are
needed at the expiration of the 2 month period, XXXX will use best efforts
to
help NEWCO acquire technical services and support at lowest cost possible.
In
the event NEWCO wishes that OCEAN will provide the technical support and
maintenance at the expiration of the 2 month period, NEWCO will pay OCEAN $1350
per month. The services provided under this fee will not include implementation
of new features, enhancements of features, or hosting. If NEWCO wishes that
OCEAN 7 provide hosting after the expiration of the 2 month period, the
compensation will be $700 per month (with the non-refundable fee of $8400 for
the full 12-months payable in 12 equal installments of $700 a month due upon
invoice at the beginning of each month). This hosting fee is based upon less
than 10,000 consumer requests per day. In the event that the number of consumer
requests exceeds 10,000 per day, more robust hosting may be needed and the
pricing for this hosting will be negotiated separately. All monthly fees quoted
in this paragraph are valid for a 12-month period beginning at the expiration
of
the 2 month period.
2.4
Unless
otherwise agreed in writing by DAGM, OCEAN shall not utilize any contractors
to
perform Services. In the event OCEAN utilizes independent contractors approved
by DAGM to perform certain portions of the Services, OCEAN shall be responsible
for the quality of the Services performed by the independent contractors and
for
the payment to the independent contractors.
2.5
The
parties agree that, except as provided below, the Services shall be supervised
and directed by XXXX. XXXX will be the contact person, unless Xxxx is prevented,
by illness, accident, disability, death, or act of god, from doing so, in which
case OCEAN will appoint another contact person with comparable
skills.
3.
COMPENSATION
AND PAYMENT
DAGM
shall pay OCEAN the following complete and inclusive compensation for
Services
performed by OCEAN under this Agreement
as
follows:
3.1
DAGM
shall issue OCEAN 60,000 restricted shares of its common stock (“DAGM COMMON
STOCK”) pursuant to RULE 144 promulgated under the Securities Act of 1933, as
amended (the “ACT”) and according to the following schedule: (i) 20,000 shares
upon signing of this Agreement and kick off of the project; (ii) 20,000 shares
10 days following delivery of an internal 80% functional beta site of the
referral service; and (iii) 20,000 shares 30 days following production release
of the web site.
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3.2
On
or
about the signing of this Agreement, DAGM shall grant to OCEAN an option to
purchase 75,000 shares of DAGM COMMON STOCK under
DAGM’s stock option
plan at an exercise price equal to the
fair
market value at date of grant according to the following vesting schedule:
(i)
25,000 options will be vested on the first anniversary of this
Agreement,
if
NEWCO is still a solvent entity; (ii) 25,000 options will be vested on the
second anniversary of this Agreement,
if
NEWCO is still a solvent entity; and (iii) 25,000 options will be vested at
the
third anniversary of this Agreement,
if
NEWCO is still a solvent entity. Notwithstanding to the contrary, the vesting
will not continue according to the schedule above if DAGM lost its majority
ownership in NEWCO, unless such change in DAGM majority share position was
due
to a sale of DAGM shares in NEWCO in which OCEAN did not have equal right to
participate in.
3.3
OCEAN will
receive 20% stock ownership in NEWCO and DAGM shall receive 80% stock ownership
in NEWCO. The final legal structure of NEWCO, its Certificate of Incorporation
and bylaws will be determined
by DAGM subject to Section 1 hereof.
3.4
The
compensation provided under Paragraphs 3.1-3.3 above is for services provided
under this Agreement excluding: (i) services provided pursuant to Paragraph
2.3
above for any services performed at the expiration of the initial 2 months
support period; and (ii) services performed pursuant to the exceptions under
Paragraph 8.4 below.
3.5
OCEAN
and
DAGM agree that when NEWCO reaches $10M
in
annual
gross revenue,
the
parties will use their best efforts to take NEWCO to IPO or otherwise spin
it
off of DAGM.
3.6
If
OCEAN
desires
to sell or transfer its ownership in the NEWCO, in whole or in part,
OCEAN
shall
first notify DAGM in writing of the proposed sale or transfer (including the
price and proposed transferee). DAGM shall have a right of first refusal for
90
days to purchase OCEAN’s
shares
at the proposed sale price. If DAGM doesn’t exercise its right of first refusal
within the period provided, OCEAN
will
have additional 90 days to conclude the transfer of shares to the proposed
transferee at the proposed terms, provided DAGM approves the proposed transferee
in writing. DAGM will not unreasonably hold such approval.
3.7
Upon
execution of this Agreement and approval by DAGM Board of Director, XXXX will
be
nominated to the
DAGM
Board of Directors. XXXX
and
Assaf Ran, the CEO of DAGM will be nominated to NEWCO Board of Directors for
as
long as OCEAN
desires
and
maintains an ownership interest in NEWCO. DAGM agrees to vote its shares in
NEWCO such that XXXX will be elected to the NEWCO Board of Directors.
MARK’s
nomination to the DAGM Board of Directors
is
subject to DAGM Bylaws.
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3.8
To
the
extent that DAGM has paid OCEAN for a third party provider's invoices, OCEAN
shall bear the responsibility to make payment to the third party provider and
OCEAN shall indemnify and hold harmless DAGM from OCEAN’s failure to do
so.
3.9
OCEAN
shall be responsible for all costs and expenses incurred by OCEAN and its
approved contractors in performing the Services.
4.
NON-COMPETITION
4.1
OCEAN,
XXXX and XXXXXX agree that for so long as OCEAN is providing Services to
NEWCO
hereunder or owns any shares in NEWCO,
and for
a period of three
(3)
years thereafter it shall not independently, through an affiliate or with a
third party, directly or indirectly, perform services on its own or for another
company that are substantially similar to the Services performed for
NEWCO
hereunder to enable
itself
or such other company to
provide
an on-line
referral
service or
that
is competing with any current (as of the date of this Agreement) DAGM
product.
4.2
OCEAN
acknowledges and agrees that the restrictions set forth in Paragraph 4.1 are
reasonable in scope and duration and are necessary to protect NEWCO,
and to enable NEWCO
to
receive the anticipated benefits of this Agreement and the arrangements
contemplated herein. The parties hereto agree that, if any of the length of
time, restriction,
the scope or another parameter of the restrictions set forth in Paragraph
4.1 is deemed to be unlawfully restrictive by a court of competent jurisdiction,
such provision shall be deemed to be amended and shall be construed by such
court to have the broadest type, scope and duration permissible under applicable
law, and if no validating construction is possible, shall be severable from
the
rest of this Agreement, and the validity, legality or enforceability of the
remaining provisions of this Agreement shall not in any way be affected or
impaired thereby.
5.
INDEMNIFICATION/LIMITATION
OF LIABILITY
5.1
Subject
to the exception in Paragraph 8.5, Each
party shall indemnify, defend and hold the other, its agents, officers, and
employees harmless from and against any and all claims, damages, liabilities
and
losses, including reasonable attorney and litigation fees arising out of any
alleged or actual breach of this Agreement or the inaccuracy of any warranty
or
representation made by it or any act or omission by it in the performance of
this Agreement.
5.2
As
a
condition to the obligations under Paragraphs 5.1, the party seeking
indemnification under this Agreement shall give the indemnifying party prompt
written notice of any claim for which it is seeking indemnification and shall
cooperate with the indemnifying party in the defense of any such claim or
action.
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5.3
Except
with respect to the indemnity obligation , neither party shall be liable for
any
indirect, incidental, punitive or other consequential damages (including,
without limitation, lost profits) arising out of or in relation to this
Agreement.
6.
CONFIDENTIALITY
6.1
OCEAN
acknowledges that DAGM is a publicly traded corporation and therefore has to
comply with certain disclosures as required by law. OCEAN further acknowledges
and agrees that DAGM only will make any public announcement or disclosure
pertaining to the nature or scope of this venture. In no event shall OCEAN
make
any public disclosure or announcement concerning this venture without prior
written approval by DAGM.
6.2
In
the
course of performing this Agreement, OCEAN and DAGM may disclose to each other
and each other’s respective employees, directors, officers, agents and other
representatives, including financial advisors, accountants and attorneys, and
any affiliates of the foregoing (each a “Recipient”),
confidential or proprietary information, including, but not limited to, the
business affairs, property, methods of operation, databases, information
contained in such databases and other records related thereto of a DAGM customer
or potential customer, information concerning the terms of this Agreement,
software code (both source and object code), documentation, software
specifications, other technical, marketing, promotional, financial or other
business information and information of a competitively sensitive or proprietary
nature as may be necessary to further the purposes of this Agreement
(“Confidential
Information”). All Confidential Information shall remain the sole property of
the disclosing party, and the Recipient shall have no interest in or rights
with
respect thereto, except as expressly set forth in this Agreement. OCEAN and
DAGM
each agree, for itself and for its respective Recipients, to maintain all such
Confidential Information, which in no event will be less than safeguards a
reasonably prudent business would exercise in similar circumstances, and further
agree to take all reasonable precautions to prevent any unauthorized disclosure
of such information. The foregoing restriction on disclosure shall not apply
with respect to any information which (a)
the
Recipient may be required to disclose by any subpoena, court order, decree,
law
or regulation applicable to such Recipient; provided, that such Recipient shall
notify the disclosing party in a timely fashion and shall seek the maximum
available confidentiality for the disclosed Confidential Information,
(b)
is or
becomes generally known or publicly available through no act or failure to
act
on the part of the Recipient, (c)
the
Recipient reasonably deems such disclosure necessary in connection with
litigation involving a deliverable or this Agreement; provided, that such party
shall notify the disclosing party in a timely fashion and shall seek the maximum
available confidentiality for the disclosed Confidential Information,
(d)
is
furnished to others by the disclosing party without restriction on disclosure,
(e)
is
known by the Recipient at the time of receiving such information from the
disclosing party as evidenced by such Recipient’s records, or (f)
is
hereafter furnished to the Recipient by a third party, as a matter of right
and
without restriction on disclosure. The Recipient of Confidential Information
agrees to notify the disclosing party concerning any disclosure permitted under
this Section prior to making such disclosure so that the disclosing party may
take appropriate action to protect the confidentiality of such
information.
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6.3
OCEAN
acknowledges that any information exchanged under this Agreement or information
that is known to the parties to this Agreement may be privileged and thus may
not be used trading DAGM’s or NEWCO’s stock or options, or otherwise used to the
benefit of any party.
7.
OWNERSHIP
7.1
As
between NEWCO and OCEAN, NEWCO shall own all right, title, and interest in
and
to all deliverables developed by OCEAN as part of the Services or supplied
by
DAGM to OCEAN hereunder, including, but not limited to, all trademarks, domain
names, patents, artwork, ideas, concepts, and other property incorporated
therein, all preliminary or other copies thereof, all versions of all computer
generated graphics, HTML and other web text documents, software programs,
database content, prints, paintings, sketches, etchings, drawings, mechanicals
or any other work, material or property produced, developed, or fabricated
for
delivery under this Agreement (collectively referred to as the “Materials”)
and to
all end user information collected by and stored in the applicable Web Site,
including, without limitation, all reports generated by OCEAN hereunder
containing such end user information (the "User
Content").
Without derogating from the above, if DAGM defaults in its obligation to deliver
the payment (DAGM stock) in accordance to Section 3.1 above, OCEAN can suspend
Services without liability.
7.2
OCEAN
hereby irrevocably assigns to NEWCO all its right, title, and interest in and
to
the Materials created by OCEAN, its employees and agents as part of the
Services. OCEAN agrees to execute any documents necessary to perfect the
transfer of such title. NEWCO’s rights in the Materials shall include the
worldwide rights and copyrights thereto and all the related rights regardless
of
whether they may be “works made for hire” under the United States Copyright
Revision Act of 1976, as amended. The Materials shall be considered specially
ordered for NEWCO as a “work for hire”, or, if for any reason held not to be a
work made for hire, OCEAN’s execution of this Agreement shall act as an
assignment of copyright.
7.3
OCEAN
shall be responsible for obtaining an assignment from its third party providers
engaged by OCEAN to perform Services under this Agreement to ensure NEWCO’s
ownership of third party Materials in accordance with the definition in
paragraph 8.1 herein. OCEAN shall secure the appropriate releases or assignments
for all third party Materials OCEAN contained in the Materials, at no additional
charge to DAGM.
7.4
DAGM
and
NEWCO understand and agree that, in the course of developing the Materials,
OCEAN may use software that is distributed as free software, open source
software (e.g. Linux, GPL, etc.), or software that requires as a condition
of
use that OCEAN make the source code of any derivative works available for
redistribution at no charge (“Publicly Available Software”). DAGM and NEWCO
agree that use of such Publicly Available Software shall not violate any terms
of this Agreement.
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8.
WARRANTIES
AND REPRESENTATIONS
8.1
DAGM
and
OCEAN each warrant and represent to each other that each has the authority
to
enter into this Agreement and to perform all obligations hereunder and that
the
person whose signature appears below is duly authorized to enter into this
Agreement on behalf of the party for whom such person is signing.
8.2
EXCEPT
AND TO THE EXTENT OTHERWISE EXPRESSLY PROVIDED IN THIS SECTION 8, THERE ARE
NO
OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT
NOT
LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS
FOR A PARTICULAR PURPOSE
TITLE,
ACCURACY, INTEGRATION OR COMPATIBILITY.
8.3
OCEAN
warrants to NEWCO that the Services and Materials described in Statement of
Work
shall conform to the descriptions set forth therein. OCEAN further represents
that it will perform the Services in a prompt, professional, and diligent
manner, and will use commercially reasonable efforts to complete the Services
in
accordance with the schedule mutually agreed between the parties..
8.4
OCEAN
represents and warrants to NEWCO that for a period of one (1) year after
delivery of any software created by OCEAN for NEWCO
as
Materials under this Agreement such software shall conform in all material
respects to the specifications agreed upon by the parties for such software.
In
the event the
software fails to perform as warranted, NEWCO shall notify OCEAN of
the
error in writing, provide a description of the error, and provide OCEAN with
access (physical and remote) to the software and the servers on which it
resides. Subject to the exceptions in Paragraph 8.5 OCEAN shall,
at its
own cost and expense, correct all errors
to
NEWCO’S
reasonable satisfaction. An error shall be deemed corrected upon the earlier
to
occur of (a) mutual agreement of the parties or (b) change to the software
which
brings it into conformance with the specifications. If, during the course of
evaluating the error, OCEAN determines that the error is due to any act or
failure to act of NEWCO, beyond the intended use of the Website, or any cause
listed in Paragraph 8.5, OCEAN will use reasonable efforts to correct the error;
provided that DAGM shall pay OCEAN for such services at the rate specified
in
Paragraph 2.3.
8
8.5
OCEAN
shall have no obligation under Paragraphs 5.1 or 8.4 to the extent any claim
for
repair, breach of warranty, or infringement is due to (a) any use of the
Materials in an environment or in conjunction with any product, hardware,
software or service which does not meet the minimum requirements established
by
OCEAN in its written specification documentation; (b) any combination of the
Materials with hardware or software provided by any person other than OCEAN
where such infringement or breach would not have occurred but for such
combination; (c) any software modification to the Materials (but not content
changes) by NEWCO or by a third party; or (d) any claim that the Materials
as
used by NEWCO infringe a business method or process patent of any third party
8.6 OCEAN
warrants to NEWCO that,
to the
best of its knowledge, neither the deliverables nor the
component applications, processes, and designs employed herein
infringe upon or misappropriate or otherwise violate any patent, copyright,
trade secret, or any other third-party proprietary right. Notwithstanding the
preceding, OCEAN makes no warranty of any kind with respect to the business
process or method to be employed by NEWCO or DAGM in connection with the NEWCO’s
referral web service or its use of the web site developed by OCEAN under this
Agreement.
8.7
In
the
event
OCEAN
breaches the warranty in Paragraph 8.6 and NEWCO is enjoined from using any
Materials
created by OCEAN for NEWCO
hereunder, or any portion thereof, by a court of competent jurisdiction due
to
OCEAN’s alleged infringement, OCEAN
must at its own expense, use reasonable efforts to: (a) procure for NEWCO the
right to continue using the Materials subject to the claim; or (b) replace
or
modify the Materials subject to the claim with a functional, non-infringing
equivalent. If OCEAN is unable to either procure for NEWCO the right to continue
to use the subject Materials or replace or modify them in 30 days thereof,
NEWCO
may
take any and all reasonable steps necessary to obtain a license or other right
to use the software or any portion thereof and NEWCO may recover from OCEAN
the
reasonable actual out-of-pocket license fee paid by NEWCO to obtain such a
license.
8.8
OCEAN
represents and warrants to NEWCO that it will not, by virtue of entering into
and performing this Agreement and the transactions contemplated hereunder,
be in
violation (with or without the passage of time or giving of notice or both)
of
any term of its charter or bylaws or any term or provision of any material
mortgage, indenture, contract, agreement, instrument, law, regulation, rule,
judgment, order or decree to which it is a party or by which it or its assets
are bound and that there is no outstanding contract, commitment or agreement
to
which OCEAN is a party or legal impediment of any kind known to OCEAN which
conflicts with this Agreement or might limit, restrict or impair the rights
granted to NEWCO hereunder.
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8.9
OCEAN
represents and warrants to NEWCO and DAGM that OCEAN is responsible for the
payment of compensation to its personnel, including all personnel assigned
to
the performance of OCEAN’s undertakings herein, federal and state income tax
withholding, social security taxes and unemployment insurance applicable to
such
personnel as employees of OCEAN. OCEAN further represents and warrants to NEWCO
and DAGM that OCEAN is responsible for all employee benefits, if any, to which
such personnel may be entitled. OCEAN agrees to defend, indemnify and hold
harmless DAGM, its officers, directors, employees, agents, representatives
and
the administrators of DAGM’ benefit plans, from and against any claims,
liabilities or expenses relating to such compensation, tax or benefit
matters.
8.10
OCEAN
represents and warrants to NEWCO that notwithstanding any other workers’
compensation or insurance policies maintained by DAGM, OCEAN is responsible
for
the procurement and maintenance of workers’ compensation coverage sufficient to
meet the statutory requirements for OCEAN’s personnel who are engaged in the
performance of OCEAN’s undertakings herein.
9.
DELIVERY
SCHEDULE
9.1
OCEAN
acknowledges that time is of the essence with regard to delivery of the
Materials. OCEAN agrees to undertake reasonable commercial efforts to deliver
the Materials according the following timeline:
9.2
A
beta
delivery of
the
software described in the Statement
of Work with 80% of the functionality described in the specifications complete
-
delivery no later than 4 months following the date of this
Agreement.
9.3
A
production delivery of the software described in the Statement of Work including
full
commercial functionality for end-users to interact with the service as described
in the specifications - delivery no later than 6 months following the date
of
this Agreement.
9.4
In
the
event OCEAN is delayed in the delivery of any Materials or Services under this
Agreement as the result of any act or failure to act by DAGM or NEWCO, the
time
for Ocean’s performance shall be extended accordingly.
10.
MARKETING
AND CUSTOMER SERVICE
10.1
Upon
production release of the web site,
DAGM
will loan NEWCO $500,000
to be used for marketing, to be spent in NEWCO’s
sole discretion (“Marketing Expenses”). DAGM
will
have the right to draw back its out of pocket Marketing Expenses prior to any
shareholders dividend distribution.
10.2
Following
launch
of
the fully commercial and functional
NEWCO’s
web
site, DAGM will
at its
sole cost and expense provide sales solicitation support and customer service
support to NEWCO including assisting in the referral service itself until the
system is fully automated,
or
NEWCO is profitable according to GAAP standards, whichever is
earlier.
10
11.
INSURANCE
In
addition to maintaining the statutory Employers Liability and Workers’
Compensation Insurance, OCEAN shall carry commercial general liability insurance
in the minimum amount of One Million Dollars ($1,000,000) during the term of
this Agreement and shall forward an insurance certificate to NEWCO
evidencing said insurance coverage prior to performing the Services for
NEWCO.
OCEAN shall cause its insurance carrier to provide NEWCO
with at
least thirty (30) days prior notice of cancellation of such insurance. The
amount of insurance coverage shall not limit in any way OCEAN’s obligations to
indemnify DAGM pursuant to Section 5.
12.
MISCELLANEOUS
12.1
Material
Change.
OCEAN
will notify DAGM promptly of any material change in its corporate structure,
financial capabilities or any other change that might compromise its ability
to
perform its obligations hereunder.
12.2
Assignment.
This Agreement and the rights and duties hereunder shall not be assignable
by
OCEAN or DAGM except upon written consent of the other; provided,
however,
that either
party may assign this Agreement and its rights and duties hereunder without
the
consent of the
other
to any affiliate
or to
any purchaser of all or substantially all of its assets.
For purposes of this Paragraph,
an
“affiliate” of is
any
company that controls, is controlled by, or is under common control with
DAGM
or
OCEAN, as applicable.
“Control” is the ability to direct the affairs of a company through the
ownership of stock, contract or other means.
12.3
Notice.
Whenever a party hereto desires or is required to give any notice, demand or
request with respect to this Agreement, such communication shall be effective
only if it is in writing and delivered by personal service, facsimile
transmission (with satisfactory evidence of receipt), courier service (with
satisfactory evidence of delivery) or mailed, certified mail, postage prepaid,
addressed as follows:
If
to
DAGM, to:
DAG
Media
Inc.
000-00
Xxxxxx Xxxx., Xxxxx 00
Xxx
Xxxxxxx, Xxx Xxxx00000
Telephone:
(000) 000-0000
Fax:
(000) 000-0000
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If
to
OCEAN, to:
OCEAN-7
Development Inc.
000
Xxxx
00xx Xxxxxx
Xxx
Xxxx,
XX 00000
Telephone:
(000) 000-0000
Fax:
(000) 0000000
Such
communications shall be effective when they are received by the addressee
thereof, but if sent by certified mail in the manner set forth above, they
shall
be effective two (2) business days after being deposited in the mail or if
sent
by courier or facsimile transmission they shall be effective on the day after
delivery. A party may change its address for such communications by giving
notice thereof to the other party in conformity with this Paragraph
14.3.
12.4
Entire
Agreement.
This
Agreement and all of its Exhibits
constitute the entire agreement among DAGM and OCEAN with respect to the subject
matter of this Agreement, and supersede all prior agreements and understandings
with respect to the matters covered by this Agreement.
12.5
Governing
Law; Submission to Jurisdiction.
This
Agreement shall be governed by and construed and enforced in accordance with
the
laws of the State of New York, without giving effect to the provisions thereof
relating to conflicts of laws, and OCEAN hereby submits to the exclusive
jurisdiction of any state or federal court in New York, New York for the
adjudication of matters related to this Agreement.
12.6
Remedies.
The
rights and remedies of OCEAN and DAGM set forth herein with respect to failure
of the other to comply with the terms of this Agreement (including, without
limitation, rights of full termination of this Agreement) are not exclusive,
the
exercise thereof shall not constitute an election of remedies and the aggrieved
party shall in all events be entitled to seek whatever additional remedies
may
be available in law or in equity.
12.7
Headings.
The
headings of this Agreement are for purposes of reference only and shall not
limit or otherwise affect the meaning hereof.
12.8
No
Waiver; Modifications.
No
provision of this Agreement may be waived, amended or otherwise modified, except
by a written agreement signed by each party hereto. The waiver by a party of
the
breach of any provision hereof shall not be construed as a waiver of subsequent
breaches or as a continuing waiver of such breach.
12
12.9
Severability.
The
provisions of this Agreement shall be deemed severable and the invalidity or
unenforceability of any provision shall not affect the validity and
enforceability of the other provisions hereof. If any provision of this
Agreement, or the application thereof to any person or entity or any
circumstance, is invalid or unenforceable, (a) a suitable and equitable
provision shall be substituted therefor in order to carry out, so far as may
be
valid and enforceable, the intent and purpose of such invalid and unenforceable
provision and (b) the remainder of this Agreement and the application
of
such provision to other persons, entities or circumstances shall not be affected
by such invalidity or enforceability, nor shall such invalidity or
unenforceability affect the validity or enforceability of such provision, or
the
application thereof, in any other jurisdiction, unless invalidity of a certain
provision affects the entire basis of the bargain for a party.
12.10
Binding
Agreement.
This
Agreement shall be binding upon and inure to the benefit of the parties hereto,
their successors and permitted assigns.
12.11
Counterparts.
This
Agreement may be executed in counterparts, each of which shall be deemed an
original, but all of which taken together shall constitute one and the same
instrument.
12.12
Incorporation
of Exhibits.
All
Exhibits attached hereto are incorporated into and made a part of this
Agreement.
12.13
Notice
of Actions.
Each
party hereto shall promptly notify the other parties in writing of any claims,
demands or actions having any bearing on this Agreement.
12.14
Compliance
with Laws.
Each
party agrees to perform its obligations hereunder in accordance with all
applicable laws, rules and regulations now or hereafter in effect.
12.15
Publicity.
OCEAN
shall not use the name of DAGM or the applicable Web Site in any publicity
releases, advertising or other promotional activities without the prior written
consent of DAGM.
12.16
Authority.
Each
party represents that it has full power and authority to enter into and perform
this Agreement, and the person signing this Agreement on behalf of it has been
properly authorized and empowered to enter into this Agreement. Each party
further acknowledges that it has read this Agreement, understands it and agrees
to be bound by it.
12.17
Force
Majeure.
For the
period and to the extent that a party hereto is disabled from fulfilling in
whole or in part its obligations hereunder where such disability arises by
reason of an act of God, war conditions, revolt, revolution, sabotage,
government, state or municipal regulations or actions, embargo, fire, strike,
or
other labor trouble, or any cause beyond a party’s control, such party shall
provide prompt notice thereof to the other party and be released from its
obligations hereunder until the cessation of such disability.
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IN
WITNESS WHEREOF,
the
parties hereto have caused this Agreement to be duly executed as of the date
first set forth above by their duly authorized representatives.
|
DAG MEDIA, INC.
|
OCEAN-7 DEVELOPMENT, INC. | |
| By: /s/ Assaf Ran | By: /s/ Xxxx Xxxxxxxx | |
| Name: Assaf Ran | Name: Xxxx Xxxxxxxx | |
| Title: CEO | Title: President | |
|
XXXX XXXXXXXX
|
XXXXXX XXXXX | |
| /s/ Xxxx Xxxxxxxx | /s/ Xxxxxx Xxxxx | |
|
|
||
|
In Witness Thereof:
|
||
| By: /s/ Xxxx Xxxxxx | ||
| Name: Xxxx Xxxxxx | ||
| Date: 12-05-2005 |
14
