Exhibit 10.1
MARKETING AGREEMENT
MARKETING AGREEMENT, dated as of, August 31 , 2004, by and between Traffix,
Inc., a Delaware corporation with an address at Xxx Xxxx Xxxx Xxxxx, Xxxxx
Xxxxx, XX 00000 ("TRAFFIX") and NeWave, Inc., a Utah corporation with offices at
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxxx Xxxxx, XX 00000 ("LIST OWNER").
RECITALS
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LIST OWNER desires to retain TRAFFIX as its telemarketing agent to develop
and execute outbound telemarketing programs to offer LIST OWNER customers who
purchased products from LIST OWNER and its affiliates and paid for them by
credit cards ("Customer Lists" or "Customers" as the context may require)
certain services ("Services") sold, operated and furnished by TRAFFIX or TRAFFIX
clients. TRAFFIX desires to execute these programs and pay LIST OWNER based on
use of the Customer Lists.
NOW, THEREFORE, in consideration of the mutual covenants set forth herein, the
receipt and sufficiency of which is hereby acknowledged, the parties agree as
follows:
1. TRAFFIX will arrange for and pay the cost of telemarketing and will have
the obligation to fulfill or provide the Services at its expense. TRAFFIX may
retain and use third party telemarketers so long as such firms are subject to
written contracts pursuant to which (a) TRAFFIX provides confidential
information and (b) LIST OWNER'S Customer Information (as defined below) is
protected.
2. LIST OWNER will provide TRAFFIX access to its current Customers, together
with the data record for each customer on the lists which shall contain the
name, address, telephone number, product purchased, purchase date, type of
credit card used and the last four digits of such credit card (collectively
"Customer Information"). Access to the Customer Information will be governed by
an agreement between LIST OWNER and its third party data hosting service
provider. To the extent TRAFFIX accesses the data for the purposes contemplated
herein, TRAFFIX agrees to pay the expenses of such data hosting service provider
to the extent such usage relates to the Customer Information. TRAFFIX will use
its business judgment to determine which customers to call, based on response
rate and other factors. Telephone scripts for the Services will be subject to
LIST OWNER's review and approval prior to its use.
3. TRAFFIX will contact the Customers by outbound telemarketing and attempt
to obtain their consent and the data necessary to take orders for the Services.
With respect to each Sale (as defined in section 5) to a Customer: (a) TRAFFIX
will obtain the (i) specific consent of the Customer to use the same credit card
that the Customer used with LIST OWNER and (ii) acknowledgment from the Customer
that the charge for the Service will appear under the TRAFFIX merchant account
name or the merchant account of TRAFFIX's client; (b) TRAFFIX will notify LIST
OWNER in writing that such Customer has agreed to (i) purchase the Service, (ii)
use the same credit card he used to purchase product from LIST OWNER, and (iii)
xxxx that credit card under an identified TRAFFIX controlled merchant account or
merchant account of TRAFFIX's client; and (c) TRAFFIX will provide LIST OWNER
(or its data hosting service provider) with the identification of such Customer;
and (d) LIST OWNER (or its data hosting service provider) will then provide
TRAFFIX with the full credit card information for TRAFFIX's or its client's
billing purposes as appropriate.
4. The term of this Agreement shall be for three months from the date
hereof. Upon any termination, all information provided by LIST OWNER to TRAFFIX
will be returned immediately.
5. TRAFFIX will pay LIST OWNER a fee set forth in Exhibit A for each of LIST
OWNER's Customer for which LIST OWNER furnished TRAFFIX Customer Information who
(a) are contacted by TRAFFIX via telemarketing for the purpose of attempting to
sell Services, (b) accepts the offer and (c) consents to allow the same valid
credit card the Customer used with LIST OWNER to be billed for the Services.
Such payments will be made by TRAFFIX to LIST OWNER no later than fifteen (15)
days after the month that such Sales were made. The data delivered hereunder
may not be used for any other purposes whatsoever unless approved by LIST OWNER.
LIST OWNER acknowledges that TRAFFIX will scrub the Customer Lists as part of
the telemarketing process.
6. The parties' relationship to each other under this Agreement shall be
that of independent contractors, with the exception of the fact that TRAFFIX
will be acting as LIST OWNER's agent with respect to its receipt and use of LIST
OWNER's Customer Information.
7. LIST OWNER represents and warrants to TRAFFIX that provision of and
access to the Customer Information to TRAFFIX and the use by TRAFFIX of the
Customer Information as set forth herein will not violate any federal or state
law or regulation.
8. TRAFFIX represents and warrants to LIST OWNER that the telemarketing
services it will perform or have others perform will be in compliance with all
applicable federal, state and local laws and regulations, including without
limitation, the Telemarketing Sales Rule. In addition, TRAFFIX will indemnify
and hold harmless LIST OWNER for any liabilities that may arise as a result of a
breach of a representation or warranty contained herein, and for any liabilities
incurred by LIST OWNER arising from the Services marketed by any of the Service
providers.
9. TRAFFIX acknowledges that all Customer Information is the sole property
of LIST OWNER. TRAFFIX employees shall be instructed to keep any Customer
Information confidential and to use it only for the purposes provided in this
Agreement. Nevertheless, LIST OWNER acknowledges that any LIST OWNER Customer
who purchases Services will become a TRAFFIX customer or a customer of TRAFFIX's
client as well, and they will have the right to use the information and data
with respect to such Customers for any legal purpose. TRAFFIX shall not use the
Customer Information or sell, rent or provide it to any party except to the
extent permitted by law and in the manner set forth herein.
10. Any notice to a party under this Agreement must be in writing and shall
be effective upon receipt at the respective addresses set forth in this
Agreement.
11. No party may assign this Agreement without the other party's prior
written consent.
Notwithstanding the foregoing, without securing such prior consent, either party
shall have the right to assign this Agreement to an affiliate by way of merger,
consolidation, reorganization or the acquisition of all or substantially all of
the business and assets of the assigning party relating to this Agreement,
unless such affiliate is a competitor of the other party to this Agreement.
12. This Agreement contains the entire understanding of the parties dealing
with its subject matter. This Agreement supersedes any prior written or oral
agreements, promises or conditions.
This Agreement shall not be changed, modified, waived, altered or amended
without the written signed mutual consent of both parties.
13. The parties agree that it may have access to and receive disclosure from
the other party certain financial records, technological developments, business
methods including the structure of its business relationships and its marketing
strategies, vendors, employee lists and other information which the parties
hereby agree are confidential and proprietary ("Confidential Information"). The
receiving party will use the Confidential Information solely for the purposes of
and as necessary to fulfill its obligations under this Agreement and will not
reveal it to any third party, other than a corporate affiliate, without the
express written consent of the disclosing party, and will take appropriate
measures to prevent their corporate affiliates and their agents, employees and
suppliers from using or disclosing any Confidential Information, except as it is
expressly permitted under this Agreement. Notwithstanding the foregoing,
Confidential Information does not include information (a) previously known by
the recipient, (b) generally available in the public domain, (c) legally
obtained from a third party which had the right to convey the information, or
(d) that is independently developed by recipient without connection to the
disclosed information.
14. During the Term and for a period of six months thereafter, LIST OWNER
may not enter into an agreement with any TRAFFIX client identified in Exhibit A
for purposes of selling TRAFFIX's client's products in a similar fashion as
contemplated herein.
15. During the term of this Agreement, TRAFFIX agrees not to sell, market or
promote products substantially similar to those sold by LIST OWNER to CUSTOMERS,
without LIST OWNER's express authorization.
16. Each party acknowledges that monetary damages alone may be insufficient
to protect and compensate the other party for the breach of any of the terms of
the above four paragraphs, and that the parties therefore are entitled to
equitable relief, including, but not limited to, injunctive relief, without a
requirement that an undertaking be posted, in addition to any other remedies to
which they may be entitled, to enforce this Section's provisions
17. This Agreement shall be governed by and construed in accordance with the
laws of the State of California, without regard to its choice of law principles.
Each party hereto agrees to accept the exclusive jurisdiction of the courts of
the State of California, and those of the United States of America situated in
the State of California, located in California County, for the adjudication of
any dispute arising out of this Agreement. Each party hereto hereby
irrevocably, (1) agrees that any suit, action, or other legal proceeding arising
out of this Agreement may be brought only in any California or United States
federal court located in the State and City of California; (2) consents to the
jurisdiction of each such court in any such suit, action, or legal proceeding;
(3) waives any objection on which it may have to the laying of venue of any such
suit, action, or legal proceeding in any of such courts; and (4) agrees that
California is the most convenient forum for litigation of any such suit, action,
or legal proceeding. This Agreement may be signed and delivered by facsimile
transmission and in counterparts.
IN WITNESS WHEREOF, this Agreement shall be deemed executed as of the date
first written above.
TRAFFIX, INC. NEWAVE, INC.
By: /s/ Xxxxx XxXxxxx By: /s/ Xxxxxxx Xxxx
Name: Xxxxx XxXxxxx Name: Xxxxxxx Xxxx
Title: Senior VP Title: CEO
Date: 9/15/04 Date: 9/15/04
LIST OWNER AGREEMENT EXHIBIT A
This LIST OWNER AGREEMENT ("Agreement") is made as of this day of August, 2004,
by and between NeWave, Inc., a Utah corporation, with a principal office at 000
Xxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxxx Xxxxx, XX 00000 ("CLIENT") and TRAFFIX,
INC., a Delaware corporation, with a principal office at One Xxxx Xxxx Xxxxx,
Xxxxx Xxxxx, Xxx Xxxx 00000 (hereinafter "TRAFFIX").
WHEREAS, CLIENT procures, compiles, owns and maintains a proprietary
computerized database composed of names, postal addresses, phone numbers and
email addresses of persons who have given permission to receive third party
commercial advertising messages (the "List"); and
WHEREAS, Traffix is engaged in the business of marketing a variety of products
and services using the Internet and other marketing channels; and
WHEREAS, CLIENT and Traffix (collectively "the Parties") wish to engage in the
marketing program described in this Agreement whereby CLIENT will furnish
Traffix with the List for use in Traffix's marketing business, upon the terms
and conditions set forth below;
NOW, THEREFORE, in consideration of the premises set forth above and the mutual
promises, agreements and conditions stated herein, the parties agree as follows:
1. MARKETING PROGRAM.
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CLIENT will provide Traffix with the List for use in Traffix's email marketing
program. During the Term of this Agreement, Traffix will transmit email
advertising messages to individuals contained within the List on behalf of
CLIENT, featuring offers from Traffix and its corporate customers (the
"Customers"), in accordance with the terms and conditions of this Agreement.
During the term of the Agreement, Traffix agrees not to sell, market or promote
products substantially similar to those sold by CLIENT to the List. Traffix
reserves the right to cease marketing to the list at any time based upon its
review of CLIENT's privacy policies and practices, and related regulatory
matters. The Parties will provide unsubscribe, remove requests and/or any
requests from consumers to have their personally identifiable information
removed from the List entirely to one another not less than weekly. In
addition, CLIENT grants Traffix the right to rent the List or any portion
thereof subject to CLIENT'S preapproval right as set forth in 6 below.
2. THIRD PARTY AGENT.
--------------------
The parties agree that in addition to its own systems, Traffix may use third
party agents (the "Third Party Agents") to assist in transmitting Traffix
promotions via email. As a condition to an entity becoming a Third Party Agent,
such entity will be under contract with Traffix and will treat the List with the
same degree of care as Traffix's proprietary database. To the extent Traffix
uses Third Party Agents to make any promotion, Traffix will be solely and
exclusively responsible for ensuring that such promotions are made in accordance
with the terms and conditions of this Agreement. The List may be physically
housed at Traffix or at the permanent business address of the Third Party Agent,
and at no other location. Upon termination of this Agreement, both Traffix and
the Third Party Agents will certify the return or destruction of all copies and
all versions of the List in accordance with 11.2 herein.
3. ADVERTISING CREATIVE.
----------------------
Traffix or its Customer will furnish the complete advertising creative for all
email advertising campaigns hereunder. Traffix will provide CLIENT a copy of all
marketing messages to be sent to the List, along with the business terms of the
promotion, for approval prior to mailing. CLIENT will have two (2) business
days to reject or modify such messages. If CLIENT does not object within two
(2) business days, then CLIENT's approval will have been deemed granted. Traffix
will include functionality that will allow the message recipient by direct
communication to unsubscribe from receiving that offer from Traffix from that
date forward. The Customer and/or Traffix will be solely responsible for the
content of all such advertising and Traffix will indemnify and hold harmless
CLIENT from and against any and all damages, judgments, fines, costs and
expenses, including reasonable attorney's fees, arising from any such
advertising. Advertising messages may identify CLIENT as the sender, and CLIENT
grants Traffix a non-exclusive license during the Term to use the CLIENT
trademark and trade name solely for use in connection with the promotions
permitted hereunder.
4. TRACKING.
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Traffix will track the number of responses and new acquisitions as a result of
the email advertising campaigns delivered through Traffix. This tracking will
record the number of new acquisitions and will be used to calculate the share of
net revenue owed to CLIENT. Tracking will be reported to CLIENT on a weekly
basis.
5. DESCRIPTION OF THE LIST.
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The records in the List will contain at a minimum the following data fields: (a)
email address; (b) postal address with phone number and (c) the date, website
and offer/permission that the consumer opted into CLIENT'S database. CLIENT
will provide a weekly update to the Lists for marketing by Traffix.
6. REVENUES.
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Traffix will pay CLIENT fifty percent (50%) of Net Revenues collected from
Traffix's use of the Lists, based on a set fee per "action" or cost per thousand
(cpm) per the terms of the specific program, as documented through Traffix's
tracking system. An "action" is defined as a new acquisition, registration, or
download. The fee per program will be specifically disclosed via a "Term Sheet"
for each specific promotional campaign. Net Revenue, unless otherwise set forth
in a Term Sheet specific to that campaign, will be defined as gross revenue
collected by Traffix within 45 days after each mailing less direct expenses for
marketing premiums, agency fees payable to third parties, email delivery costs
(which delivery costs may not exceed $.30 cpm) and 4% for sales commissions.
7. REVENUE OFFSET.
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In the event CLIENT owes Traffix monies pursuant to any other agreement between
the Parties or their affiliates, Traffix may offset any amounts due to CLIENT
under this Agreement against any amounts outstanding under such other
agreements, and provide CLIENT notification of such offset.
8. REPORTING.
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Traffix will provide CLIENT with reporting by the 15th day of each month
hereunder for gross and net revenues derived from the List during the previous
month.
9. PAYMENTS.
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9.1 In the event Traffix has elected to retain 5% of Net Revenue for bad
debt and finance charges under 6, Traffix will pay CLIENT all applicable fees
within fifteen (15) days from the receipt of invoice based upon the final
reporting issued by Traffix.
9.2 Traffix will pay CLIENT all applicable fees within fifteen (15) days
from the end of the calendar month in which the fees were collected.
9.3 Any payment may be offset by any applicable sums outstanding per 7
above.
10. TERM.
-----
The term of this Agreement will be for two (2) years commencing on the date
hereof.
11. TERMINATION.
------------
11.1 Either party may terminate this Agreement upon thirty (30) days written
notice to the other party. Upon termination of this Agreement for any reason,
the following will occur:
(a) Traffix will pay CLIENT all sums, if any, due hereunder within fifteen
(15) days of collection; and
(b) Traffix or its Third Party Agents will promptly return to CLIENT or
destroy all tapes, copies, partial copies and any other documentation,
materials, or other information evidencing the Lists, with written confirmation
to CLIENT.
(c) Notwithstanding the foregoing, CLIENT may not terminate this Agreement
with respect to any particular program for which CLIENT has previously approved
a marketing campaign for a Customer beyond the thirty (30) day notice period.
12. OWNERSHIP OF THE LISTS.
--------------------------
12.1 Traffix acknowledges that the List will at all times remain the
property of the CLIENT, that the sole permitted use of the List is for email
prospecting only, and that Traffix has no proprietary rights in the List;
12.2 Notwithstanding 12(a), in the event a consumer completes a Traffix or
a Customer's registration form or a revenue generating transaction in response
to Traffix's or its Customers' use of the List, then Traffix or Customer will be
deemed to own any such record as a new record independent from the List and the
restrictions contained in 12.1 above will no longer apply to such record. It
is specifically acknowledged and agreed that Traffix may market its proprietary
offers as a promotion permitted hereunder to the List.
13. RIGHT TO AUDIT.
-----------------
Traffix agrees that at all times it will maintain current, accurate and complete
books and records relating to its usage of the List and any payments due CLIENT
derived under this Agreement. Traffix agrees that CLIENT, or any designee of
CLIENT, will have the right at any time following the effective date of this
Agreement to examine, inspect, audit, review and copy or make extracts from all
such books, records and any source documents used in the preparation thereof
during normal business hours upon written notice to Traffix at least seven days
prior to the commencement of any such examination, inspection, review or audit.
Such audit will be strictly limited to those books and records that specifically
relate to the information pertinent to the use of the Data. The right to audit
will not exceed two (2) audits per calendar year.
14. CONFIDENTIALITY; NON-DISCLOSURE.
---------------------------------
14.1 For purposes of this Agreement, the term "Confidential Information"
will mean non-public information that either party designates as being
confidential or which, under the circumstances surrounding disclosure,
reasonably ought to be treated as confidential. Confidential Information
disclosed to a party by any employee, agent, representative, or affiliate of the
other party is covered by this Agreement.
14.2 Confidential Information will not include any information that: (i) is
or subsequently becomes publicly available without a breach of any obligation of
confidentiality owed to a party under this Agreement or by any third party; (ii)
was already known to a party prior to the other party's disclosure of such
information; (iii) became known to a party from a source other than the other
party and other than by a breach of an obligation of confidentiality owed to the
party by such source; or (iv) is independently developed by a party.
14.3 Neither party will disclose any Confidential Information to third
parties for at least five (5) years following the date of its disclosure.
Provided, however, that a party may disclose Confidential Information to its
professional advisors on a need to know basis if such advisors have agreed to
keep such information confidential in the same or a substantially similar manner
as provided for in this Agreement. Neither party will use any Confidential
Information except as expressly permitted by, or as required to achieve the
purposes of, this Agreement.
14.4 Notwithstanding anything contained in 14(c) to the contrary, a party
may disclose Confidential Information in accordance with a judicial or other
governmental order or as may be required by statute. Provided, however, that a
party so disclosing Confidential Information (the "Disclosing Party") will give
the other party (the "Protected Party") as much advance notice as reasonably
possible of any such disclosure so that the Protected Party may seek a
protective order or other remedy. The Disclosing Party will comply with any
protective order or equivalent relating to the Confidential Information. In the
event such a protective order is not obtained, the Disclosing Party will use its
reasonable best efforts to ensure that only the minimum portion of the
Confidential Information necessary to comply with the law is disclosed.
14.5 Each party will take reasonable security precautions, at least as great
as the precautions it takes to protect its own confidential information of a
similar nature, to keep confidential the Confidential Information.
15. NON-CIRCUMVENTION.
------------------
During the Term and for a period of three months thereafter, CLIENT may not
enter into an agreement with any Customer of Traffix identified in a Traffix
promotion hereunder for purposes of having such third party send offers by email
to any name in the List.
16. REPRESENTATIONS AND WARRANTIES.
---------------------------------
16.1 CLIENT represents and warrants that it has full power and authority to
enter into this Agreement; that the records composing the List were compiled in
compliance with all state and federal laws, including without limitation the
CAN-SPAM Act; that the execution, delivery and performance by CLIENT of this
Agreement will not violate any law, statute or other governmental regulation
including the CAN-SPAM Act; that the subscribers to the List have opted-in to
receive third-party commercial email messages; that CLIENT has full right and
authority to allow Traffix to market to the List; that in the event of a "spam"
complaint from a consumer, CLIENT will provide Traffix with the source or
registration material providing date, time and promotion relevant to said
consumer's permission to receive email offers from third parties within 24
hours; that throughout the Term of this Agreement, the List will be as current,
accurate and complete as possible using the source data, compilation and data
processing methods normally employed by CLIENT in the ordinary course of its
business. If CLIENT cannot provide Traffix with the source or registration
material providing date, time and promotion relevant to said consumer's
permission to receive email offers from third parties within 24 hours in the
event of a "spam" complaint from a consumer, the complaining party will be given
the contact information of the signatory to this Agreement to address the issue.
CLIENT further represents and warrants that CLIENT's collection, compilation of
and transmittal of the List to Traffix does and will not be in violation of any
law, statute or other governmental regulation.
16.2 Traffix represents and warrants to CLIENT that it has full power and
authority to enter into this Agreement; that the execution, delivery and
performance by Traffix of this Agreement will not violate any law, statute or
other governmental regulation; and that Traffix's use of the List will comply
with all privacy, data protection, and any other laws, statutes and governmental
regulations applicable to such use of the List (assuming the accuracy of 16.1).
17. DISCLAIMER OF WARRANTIES.
---------------------------
EXCEPT AS SET FORTH IN THIS AGREEMENT, THERE ARE NO OTHER WARRANTIES, EXPRESS OR
IMPLIED HEREUNDER, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
18. INDEMNIFICATION.
----------------
18.1 Traffix agrees to indemnify and hold CLIENT harmless from and against
all direct costs, losses, damages, liabilities and expenses, including
reasonable attorneys' fees attributable to any claim made by a third party
arising out of Traffix's failure to perform any of its obligations under this
Agreement, including without limitation, misuse of the List, provided that (i)
CLIENT gives Traffix prompt written notice of any such claim of which CLIENT has
knowledge; and (ii) Traffix is given the opportunity to assume full control over
the defense of such claim and receives the full cooperation of CLIENT in the
defense thereof.
18.2 CLIENT agrees to indemnify and hold Traffix harmless from and against
all direct costs, losses, damages, liabilities and expenses, including
reasonable attorneys' fees, attributable to any claim made by a third party
arising out of CLIENT's failure to perform any of its obligations hereunder,
including that the Data infringes upon any proprietary right of a third party,
provided that (i) Traffix gives CLIENT prompt written notice of any such claim
of which Traffix has knowledge; and (ii) CLIENT is given the opportunity to
assume full control over the defense of such claim and receives the full
cooperation of Traffix in the defense thereof.
19. LIMITATION OF LIABILITY.
--------------------------
Any claim or legal action arising out of failure, malfunction, or defect arising
from this Agreement in any respect, by either party, will be brought within a
period of one year following the occurrence of the event giving rise to said
claim, or said claim will be deemed waived. IN NO EVENT SHALL EITHER PARTY BE
LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OR LOST
PROFITS ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE PERFORMANCE OR
BREACH THEREOF.
20. GOVERNING LAW AND JURISDICTION.
----------------------------------
This Agreement will be governed by and construed in accordance with the laws of
California, notwithstanding its choice of law rules. The proper venue of any
judicial proceeding arising out of this Agreement the will be state of the
complaining party. Each Party hereto irrevocably waives to the fullest extent
permitted by law any objection that it may now or hereafter have to the laying
of the venue of any judicial proceeding brought in such courts and any claim
that any such judicial proceeding has been brought in an inconvenient forum.
21. NOTICES.
--------
Any notice provided for or concerning this Agreement will be in writing and will
be sufficiently given when sent certified or registered mail if sent to the
respective address of each party set forth at the beginning of this Agreement.
22. ENFORCEABILITY.
---------------
In the event that any portion of this Agreement is held to be unenforceable, the
unenforceable portion will be construed in accordance with the applicable law as
nearly a possible to reflect the original expression of the parties and the
remainder of the provisions of the Agreement will remain in full force and
effect.
23. FORBEARANCE OR DELAY IS NOT WAIVER.
----------------------------------------
The failure by either party to insist upon or enforce strict performance of any
provisions of this Agreement will not be construed as a waiver of any provision
or right. Neither the course of conduct between the parties nor trade practice
will act to modify, strike, supplement, or amend any provisions of this
Agreement.
24. MODIFICATION OF AGREEMENT.
----------------------------
Any modification of this Agreement or additional obligations assumed by either
party in connection with this Agreement will be binding only if evidenced in
writing and signed by each party or an authorized representative of each party.
25. MODIFICATION PURSUANT TO PUBLIC AUTHORITY.
----------------------------------------------
This Agreement will at all times be subject to changes or modifications under
federal, state, or local law, by public authority. In the event of a legal or
regulatory action, or the act of a third party prohibits, prohibits use of or
dissemination of advertisements to the Lists, either party may terminate this
Agreement with as much notice as is practicable.
26. ENTIRE AGREEMENT/MODIFICATIONS.
--------------------------------
This Agreement supersedes all prior negotiations and agreements between the
parties, and constitutes their entire understanding, with respect to the subject
matter contained herein. This Agreement may not be modified except by a
subsequent writing signed by both parties.
27. ASSIGNMENT/CHANGE OF CONTROL.
-------------------------------
This Agreement will be binding upon and will inure to the benefit of the parties
hereto and their respective successors and assigns. This Agreement may not be
assigned by a party without the express written consent of the other and any
purported assignment, unless so consented to, will be void and without effect.
Notwithstanding the foregoing, either party, without the prior written approval
of the other party, may assign its rights and obligations hereunder to a
successor in ownership in connection with any merger, consolidation, or sale of
substantially all of the assets of the business of a party, or any other
transaction in which ownership of more than fifty percent (50%) of the party's
voting securities is transferred.
28. COUNTERPARTS.
-------------
This Agreement may be executed in any number of counterparts, each of which will
be deemed to be an original as against any party whose signature appears
thereon, and all of which will together constitute one and the same instrument.
This Agreement will become binding when one or more counterparts hereof,
individually or taken together, will bear the signatures of all of the parties
reflected hereon as the signatories. A faxed signature will have the same
legally binding effect as an original signature.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this List
Owner Agreement as of the date first above written.
NEWAVE, INC.
BY: /s/ Xxxxxxx Xxxx
NAME: Xxxxxxx Xxxx
TITLE: CEO
TRAFFIX, INC.
BY: /s/ Xxxxx XxXxxxx
NAME: Xxxxx XxXxxxx
TITLE: Senior VP
