EXHIBIT 10.18
RESELLER AGREEMENT
THIS AGREEMENT (the "AGREEMENT") entered into as of the 16 day of February, 2004
(the "EFFECTIVE DATE") provides the terms and conditions under which MediaNet
Group Technologies, Inc., a Nevada corporation having an address at 0000 X.
Xxxxxx Xxxx Xxxxx 000 Xxxxxxx, XX 00000 XXX ("MEDIANET GROUP TECHNOLOGIES"),
authorizes Xxxxxx & Associates Marketing, Inc, a Kansas Corporation, having an
address at 00000 Xxxxxxxx Xxxxx Xxxxxxx, xxxxx 000, Xxxxxxx. Kansas
66211("RESELLER") to be its true and lawful representative and agent for the
purpose of reselling licenses of the MediaNet Group Technologies Portals
("PORTALS") and other MediaNet Group Technologies products and services in
accordance with the terms and conditions contained in this Agreement. This
Agreement, together with the other agreements and schedules referenced in it,
contains the complete terms and conditions between the parties.
MEDIANET GROUP TECHNOLOGIES AND RESELLER AGREE AS FOLLOWS:
1. LICENSE
Reseller is hereunder licensed to market MediaNet Group Technologies'
Brand-A-Port portals ("PORTALS") and to resell MediaNet Group Technologies
products and services for compensation in accordance with the annexed "RESELLING
SCHEDULE." Under the terms and conditions as outlined in this Agreement.
2. RESELLING
The Reseller intends to market the Portals to companies and various businesses
and individuals ("BUYERS") who may include corporations, small businesses,
religious organizations, network marketing, franchise, business opportunities,
chains, charities, organizations and other companies that would have a use for
individual and multiple portals. The purpose of this Agreement is to define the
scope of compensation for the marketing of Portals to these potential customers.
During the Term of this Agreement, Reseller shall have the right to market
Brand-A-Port Portals, both through the existing Brand-A-Port Portal under the
License and independently to Buyers for resale, subject to approval by MediaNet
Group Technologies.
3. COMPENSATION
MediaNet Group Technologies shall pay Reseller a fee in accordance with the
annexed Fee Schedule. MediaNet Group Technologies will remit payment as directed
by Reseller in the time frames noted on the Compensation Schedule attached
hereto.
4. PUBLICITY AND ADVERTISING
Subject to Section 7, Reseller and MediaNet Group Technologies agree that broad
publicity with respect to the relationship developed by this Agreement, and the
advantages of such relationship, will be permitted and actively encouraged and
supported by both parties. This publicity initiative will include, but is not
limited to, a press releases issued by Reseller and MediaNet Group Technologies,
publicizing the strategic alliance between the parties, on site promotion and
email campaigns. In this regard, Reseller and MediaNet Group Technologies shall
agree on the form, content of the press release prior to its release. MediaNet
Group Technologies must approve any advertising prior to issuance and placement.
5. PROPRIETARY RIGHTS
5.1 OWNERSHIP. RESELLER understands and agrees that MediaNet Group
Technologies is the exclusive holder of and shall retain, all right, title
and interest in and to the Portal, Content and Engine and the All Pages,
including without limitation all intellectual Property therein site
(EXCLUDING PROPRIETARY PAGES PROVIDED BY RESELLER OR BUYERS).
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5.2 INTELLECTUAL PROPERTY. Nothing herein shall grant a party any right,
title or interest in the other party's Intellectual Property, except as
explicitly set forth herein. At no time during or after the Term of this
Agreement shall a party challenge or assist others to challenge the other
party's Intellectual Property or the registration thereof or attempt to
register any trademarks, marks or trade names confusingly similar to those
or the other party.
5.3 INTELLECTUAL PROPERTY WARRANTY. The MediaNet Group Technologies
BrandAPort Service and the operation of the site(s) and co-branded site(s)
as currently operated by MediaNet Group Technologies, Inc. is designed to
provide a link taking the end-user to it's originating website. Other than
claims arising out of the use of the BrandAPort services, MediaNet Group
Technologies shall not be responsible for unauthorized use of the
Co-branded sites by Reseller, users of Reseller's or Buyers' Sites.
6. CONFIDENTIALITY
6.1 CONFIDENTIALITY INFORMATION. Each party (the "RECEIVING PARTY")
acknowledges that by reason of its relationship to the other party (the
"DISCLOSING PARTY") hereunder, the Receiving Party will have access to
certain information and materials, including the terms of this Agreement,
concerning the Disclosing Party's business, plans, technology, products and
services that are confidential and of substantial value to the Disclosing
Party, which value would be impaired if such information were disclosed to
third parties ("CONFIDENTIAL INFORMATION"). The Receiving Party agrees that
it shall not use in any way for its own account or the account of any third
party, nor disclose to any third party, any such Confidential Information
revealed to it by the Disclosing Party. The Receiving Party shall take
every reasonable precaution to protect the confidentiality of Confidential
Information. Upon request by the Receiving Party, the Disclosing Party
shall advise whether or not it considers any particular information to be
Confidential Information. The Receiving Party shall not publish any
technical description of the Disclosing Party's Confidential Information
beyond any descriptions published by the Disclosing party. In the event of
expiration or termination of this Agreement, there shall be no use or
disclosure by the Receiving Party of any Confidential Information of the
Disclosing Party, and the Receiving Party shall not develop any software,
devices, components or assemblies utilizing the Disclosing Party's
Intellectual Property. Both parties agree that the terms and conditions of
this Agreement are confidential and shall not be disclosed to any third
party, unless disclosure is compelled by final, non-appealable order of a
court of competent jurisdiction.
6.2 EXCLUSIONS. Confidential Information does not include information
permitted to be disclosed under section 5 and any information that the
Receiving Party can demonstrate by written records: (a) was known to the
Receiving Party prior to its disclosure hereunder by the disclosing party;
(b) is independently developed by the Receiving Party; (c) is or becomes
publicly known through no wrongful act of the Receiving Party; (d) has been
rightfully received from a third party whom the Receiving party has
reasonable grounds to believe is authorized to make such disclosure without
restriction; (e) has been approved for public release by the Disclosing
Party's prior written authorization, or (f) must be produced or disclosed
pursuant to applicable law, regulation or court order, provided that the
receiving party provides prompt advance notice thereof to enable the
disclosing party to seek a protective order or otherwise prevent such
disclosure. In addition, Reseller and MediaNet Group Technologies may
disclose the existence and terms of this Agreement in connection with a
potential acquisition of substantially the entire business of the other
party, or a private or public offering of securities of either party.
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7. LIMITATION OF LIABILITY
NEITHER RESELLER NOR MEDIANET GROUP TECHNOLOGIES MAKES ANY WARRANTY WHATSOEVER
WITH REGARD TO THE FEATURES, FUNCTIONS, PERFORMANCE, QUALITY OR OTHER
CHARACTERISTICS OF THE SERVICE EACH COMPANY PROVIDES. IN NO EVENT SHALL EITHER
PARTY BE LIABLE TO EACH OTHER OR ANY OTHER ENTITY FOR ANY SPECIAL,
CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES, HOWEVER CAUSED, ON ANY THEORY OF
LIABILITY, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED
REMEDY. RESELLER SHALL NOT BE LIABLE TO MEDIANET GROUP TECHNOLOGIES OR ANY OTHER
PARTY FOR ANY DAMAGES ARISING FROM THIRD PARTY UNAUTHORIZED ACCESS OR USE OF THE
MEDIANET GROUP TECHNOLOGIES SERVICE OR ANY IMAGES OBTAINED BY USING THE MEDIANET
GROUP TECHNOLOGIES SERVICE. MEDIANET GROUP TECHNOLOGIES SHALL NOT BE LIABLE TO
RESELLER OR ANY OTHER PARTY FOR ANY DAMAGES ARISING FROM THIRD PARTY
UNAUTHORIZED ACCESS OR USE OF THE MEDIANET GROUP TECHNOLOGIES SERVICE OR ANY
IMAGES OBTAINED BY USING THE MEDIANET GROUP TECHNOLOGIES SERVICES.
8. DISCLAIMERS
MEDIANET GROUP TECHNOLOGIES DISCLAIMERS. MEDIANET GROUP TECHNOLOGIES MAKES NO
OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE,
REGARDING THE MEDIANET GROUP TECHNOLOGIES, PICTUREJUDGE OR BRANDAPORT SERVICE,
AND MEDIANET GROUP TECHNOLOGIES SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF
NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. MEDIANET
GROUP TECHNOLOGIES DOES NOT WARRANT THAT THE OPERATION OF THE MEDIANET GROUP
TECHNOLOGIES SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. FURTHERMORE, MEDIANET
GROUP TECHNOLOGIES DOES NOT MAKE ANY REPRESENTATIONS REGARDING THE USE OF THE
RESULTS OF THE USE OF THE MEDIANET GROUP TECHNOLOGIES SITE IN TERMS OF THEIR
CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE.
9. TERMS AND TERMINATION
9.1 TERM. The term of this Agreement shall commence on the Effective Date
and continue for a period of 1 year after the Effective Date, unless
earlier terminated as set forth herein (the "TERM"). This Agreement shall
renew for successive 1-year periods, after the initial 1 Year Term, if
agreed by both parties in writing within 30 days of license expiration.
Either party may terminate the Agreement on 60-days written notice during a
renewed term. However, in no event shall termination of this Agreement by
MediaNet Group Technologies relieve it of the obligation to remit payment
to Reseller for sales or Portals, Hosting Services or other products and
services to or through Buyers contracted by Reseller prior to such
termination. The obligation to remit payment cease 30 days after
termination of this Agreement.
9.2 TERMINATION FOR BREACH OR INSOLVENCY. A party shall have the right to
terminate this Agreement on written notice if (a) the other party ceases to
do business in the ordinary course or is insolvent (i.e., unable to pay its
debts in the ordinary course as they come due), or is declared bankrupt, or
is the subject of any liquidation or insolvency proceeding which is not
dismissed within 90 days, or makes any assignment for the benefit of
creditors, or (b) the other party breaches any material term of this
Agreement, including timely payments, and fails to cure such breach within
30 days after written notice thereof (collectively referred to here in as
"TERMINATING EVENTS"). In the event of a Terminating Event, involving
Reseller, other than for an event involving fraud or dishonesty by
Reseller, MediaNet Group Technologies shall be entitled to offset payments
due under this Agreement against its costs incurred as a result of the
Terminating Event, but shall remain obligated to remit all payments due
under this agreement as a direct result of the activities of Reseller prior
to the effective date of termination.
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10. EFFECT OF TERMINATION
Upon the expiration or termination of this Agreement:
10.1 Each party shall, within 30 days of such expiration or termination
return to other party or destroy all Confidential Information and all other
material received from such other party.
10.2 All rights granted by Reseller hereunder to MediaNet Group
Technologies shall terminate. All rights granted by MediaNet Group
Technologies hereunder to Reseller shall terminate, subject to the
continuing obligation of MediaNet Group Technologies to remit payment
pursuant to the provisions of Section 8.
10.3 Sections 5, 6, 7, 9.2 10, 11, 12 and 13 shall survive the expiration
or termination of this Agreement for any reason.
11. REMEDIES
11.1 INDEMNIFICATION. Reseller and MediaNet Group Technologies shall
indemnify and hold harmless each other, and their respective directors,
officers, employees, and agents, from and against all claims, losses,
damages and expenses (including reasonable attorney's fees) resulting from
the breach of any agreement, representation or warranty set forth herein;
provided the indemnified party provides the indemnifying party with (i)
prompt written notice of such claim or action, (ii) sole control and
authority over the defense or settlement of such claim or action and (iii)
proper and full information and reasonable assistance to defend and/or
settle any such claim or action.
11.2 INJUNCTIVE RELIEF. The parties acknowledge that the breach or
threatened breach of this Agreement by Reseller would cause irreparable
harm to MediaNet Group Technologies, the extent of which would be difficult
to ascertain. Accordingly, each party agrees that, in addition to any other
remedies to which MediaNet Group Technologies may be legally entitled,
MediaNet Group Technologies may seek immediate injunctive relief in the
event of a breach or threatened breach of such sections by the Reseller or
any of Resellers employees or subcontractors.
12. RESELLER PORTAL
If applicable, MediaNet Group Technologies shall produce a Branded Portal for
Licensee under terms as outlined in a Portal Agreement attached hereto.
13. MISCELLANEOUS
13.1 ASSIGNMENT. This Agreement will be binding upon and inure to the
benefits of the parties hereto and their permitted successors and assigns.
Reseller may nat assign or otherwise transfer this Agreement without
MediaNet Group Technologies's prior written consent except to a successor.
13.2 WAIVER AND AMENDMENT. No modifications, amendment or waiver of any
provision of this Agreement shall be effective unless in writing and signed
by the party to be charged. No failure or delay by either party in
exercising any right, power, or remedy under this Agreement shall operate
as a waiver of any such right, power or remedy.
13.3 GOVERNING LAW. The laws of the State of Florida shall govern this
Agreement, without reference to conflicts of law provisions.
13.4 NOTICES, ETC. Any notice required or permitted by this Agreement shall
be deemed given if delivered by registered mail, postage prepaid, addressed
to the other party at the address shown at the beginning of this Agreement
or at such other address for which such party gives notice hereunder.
Delivery shall be deemed effective 3 days after deposit with postal
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authorities. Email, facsimile or other form of transmission pursuant to
which MediaNet Group Technologies receives actual notice of the accounts
into which the funds are to be wired may give notices of the accounts into
which payment is to be wired shall be effective and MediaNet Group
Technologies shall be entitled to rely upon them as if they were sent in
accordance with the notice provisions of this paragraph.
13.5 INDEPENDENT CONTRACTORS. The parties are independent contractors with
respect to each other. Each party is not and shall not be deemed to be an
employees, agent, joint venture Reseller or legal representative of the
other for any purpose and shall not have any right, power, or authority to
create any obligation or responsibility on behalf of the other.
13.6 SEVERABILITY. If any provision of this Agreement shall be held by a
court of competent jurisdiction to be contrary to law, such provision shall
be changed and interpreted so as to best accomplish the objectives of the
original provision to the fullest extent allowed by law and the remaining
provisions of this Agreement shall remain in full force and effect.
13.7 COMPLETE UNDERSTANDING. This Agreement constitutes the final, complete
and exclusive agreement between the parties with respect to the subject
matter hereof, and supersedes any prior or contemporaneous agreement,
either written or oral.
13.8 FORCE MAJEUR. Except with respect to obligations to make payments
hereunder, neither party shall be deemed in default hereunder, nor shall it
hold the other party responsible for, any cessation, interruption or delay
in the performance of its obligations hereunder due to causes beyond its
reasonable control including, but not limited to: earthquake, flood, fire,
storm or other natural disaster, act of God, labor controversy or threat
thereof, civil disturbance or commotion, disruption of the public markets,
war or armed conflict or the inability to obtain sufficient material,
supplies, labor, transportation, power or other essential commodity or
service required in the conduct of its business, including internet access,
or any change in or the adoption of any law, ordinance, rule, regulation,
order, judgment or decree.
13.9 CONTENT. It is agreed that MediaNet Group Technologies shall have
complete control of content on the Portals with the exception of the
customized pages and links on contracted portals, and these pages and links
are subject to MediaNet Group Technologies's approval.
13.10 NO DISPARAGEMENT. Each party agrees that, during the Term of this
Agreement and for a period of five (5) years thereafter, neither will make
written or oral comments regarding the other that are negative,
disparaging, tend to bring the other into disrepute or call into question
the business acumen, character, honesty or integrity of the other.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
effective as of the day and year last set forth below.
MEDIANET GROUP TECHNOLOGIES, INC. LEGAL NAME:
Xxxxxx & Associates Marketing, Inc.
/s/ Xxxxxx X.Xxxxx /s/ Xxxxx Xxxxxx
--------------------------------- ------------------------------------
Signature Signature
By: Xxxxxx X. Xxxxx By: Xxxxx Xxxxxx
Title: Chief Executive Officer Title: President
Name of Master Reseller (if applicable):____________ Approved by:_______________
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LICENSE RESELLING SCHEDULE
Resellers are licensed to market the Brand-A-Port applications and receive
commission on all product sales plus residual income on hosting/maintenance fees
as outlined on the Compensation Schedule attached hereto.
THE PLAN
The MediaNet Group Technologies Reseller Plan is free to join. Under the plan,
resellers market and promote MediaNet Group Technologies's software product
range to their existing customer base and the general Internet community. By
referring a customer to the MediaNet Group Technologies web site, the reseller
receives a commission for customer's purchase of the MediaNet Group Technologies
Brand-A-Port software.
MARKETING AND PROMOTION
Resellers are expected to actively market and promote MediaNet Group
Technologies Software to their existing customer base and visitors to their web
site. Promotion by newsletters and e-mail to customers is encouraged, but we do
not encourage spam e-mail and hence specifically ask resellers not to promote
MediaNet Group Technologies Software or Applications via unsolicited e-mail.
RESELLER LINK
Customers are identified as coming from a particular reseller by placing a
link(s) on their web site, which contains a cookie (i.e.. small packet of code)
which identifies the reseller. On acceptance into the program, MediaNet Group
Technologies issues the reseller with the cookie and instructions on how to
insert the cookie into their web site.
WHAT PRODUCTS ARE AVAILABLE FOR RESALE?
Products which can be resold, include: Brand-A-Port Gold (Generic Portal),
Brand-A-Port Platinum Portal and Branded PictureJudge applications. MediaNet
Group Technologies may offer additional products from time to time.
COMMISSION
MediaNet Group Technologies tracks the customer sales coming from the reseller
and at the end of every calendar month issues a check for 20% commission to the
reseller on product sales and 10% the total amount of hosting/maintenance sales
made. Commissions are only paid each month if the amount owing exceeds $100 US.
MediaNet Group Technologies reserves the right to change the level of commission
with out notice. Commission is not paid on MediaNet Group Technologies's
free-xxxx programs. (pricing and products subject to change without notice).
CUSTOMER CONTACT
Once a customer has come from the reseller to the MediaNet Group Technologies
web site, MediaNet Group Technologies deals with the customer directly, issuing
the software from the MediaNet Group Technologies server and billing the
customer. MediaNet Group Technologies handles all technical support and refund
issues.
REFUNDS
If a refund is issued to a customer who came from a reseller, the reseller's
account is adjusted accordingly.
TERMINATION
The Reseller Agreement can be terminated at any time at the discretion of either
party.
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COMPENSATION SCHEDULE
This Compensation Schedule is attached hereto and made a part thereof that
certain Reseller Agreement of even date:
Reseller shall be entitled to receive compensation in the following manner:
COMPENSATION:
BSP REWARDS PROGRAM: MediaNet shall, upon collection, remit to Member
Provider _1_% of the net Rewards earned by Members through and provided directly
by it, and _1_% of the net Member Rewards received and collected that is earned
through Merchants, Companies, Organizations, Groups and individuals that have
been contracted through Member Provider.
BRAND-A-PORT OR BSP PORTAL SALES: MediaNet shall remit to Member Provider
20% of the price of each Portal sold directly by it.
BSP MONTHLY HOSTING FEES: In addition, MediaNet shall remit to Member
Provider an amount equal to 10% of the hosting fees paid by Buyers who purchase
portals or host websites with MediaNet as a direct result of the activities of
Member Provider, whether those activities are sold through the portal or
independent of it.
PAYMENT OF COMPENSATION (SUBJECT TO RECEIPT OF GOOD, VALID FUNDS)
PORTAL SALES: MediaNet shall remit all sums due to Member Provider within
30 days of receipt of cleared funds.
MONTHLY HOSTING FEES: In addition, MediaNet shall remit hosting fees to
Member Provider in monthly installments on or before the 15th business day of
each month. All sums received by MediaNet through the last business day of the
preceding month shall be included in the calculation of the amount to be
remitted.
BSP REWARDS MEMBER PURCHASES VOLUME: Amounts due for purchases of products
or services shall be calculated as of funds received by the last day of each
month and remitted on or before the 15th day of the following month.
RECORDS
MediaNet shall maintain books and records and shall provide for online
confirmation of sales and payments. MediaNet shall permit Member Provider or its
designees reasonable access during normal business hours and, upon request, to
verify funds and payments due pursuant to this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
effective as of the day and year last set forth below.
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RESELLER DISTRIBUTOR PRICING STRUCTURE & DETAILS
GOLD PORTAL
Includes the following available options:
o Complete Basic Portal
o Web-based Admin Panel to turn on and turn off individual applications and
features
o Branded Header
o Branded Frames
o Reseller Program
o Email
o MediaNet Group Technologies Photo Sharing
o MediaNet Group Technologies Travel Agency
Retail $495 License Wholesale $395
Monthly Hosting/Maintenance/Updates
Retail $39 Wholesale $35
(quarterly maintenance fee due in advance)
PLATINUM PORTAL
Includes at your option:
o Full Featured Customizable Portal with web based administration panel
o Branded Header
o Branded Photo Sharing
o Branded Travel Agency
o Branded Frames
o Email
o Branded Picture Judge
o Reseller program
Retail $1295 License Wholesale $1035
Monthly Hosting/Maintenance/Updates
Retail $99 Wholesale $89
(quarterly maintenance fee due in advance)
BRANDED PICTUREJUDGE(SM) INTERACTIVE PHOTO RATING GAME
Includes at your option: o Branded PictureJudge photo rating game o Customized
phot catagories o Reseller Program
Retail $795 License Wholesale $635
Monthly Hosting/Maintenance/Updates
Retail $69 Wholesale $63
(quarterly maintenance fee due in advance)
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PROCEDURE FOR REGISTERING PROSPECTIVE
CLIENTS, MEMBER PROVIDERS/ MERCHANTS/MERCHANT MEMBER PROVIDERS
This Addendum is attached hereto and made a part hereof that certain Reseller or
Master Reseller Agreement between the parties:
MEDIANET GROUP (MNG) HAS DEVELOPED A SET OF CRITERIA DESIGNED TO AVOID ANY
POTENTIAL PROSPECT REGISTRATION DISPUTES AND TO ASSURE OUR RESELLERS FULL
COMMISSION ON SALES MADE BY THEM. TO INSURE THIS GOAL, WE HAVE CREATED CRITERIA
THAT MUST BE FOLLOWED FOR REGISTRATION OF THE COMPANIES (PROSPECTS) INTRODUCED
TO THE BSP REWARDS PROGRAM.
1. Resellers must send us an E-mail with the company name, contact and title
that you wish to register with the Company. Said contact must have the authority
to make the decision relative to the Brand-A-Port and/or BSP programs.
2. MNG will send an e-mail to the Reseller approving or disapproving the
registration of the prospective client dependent upon whether or not there has
been prior contact by the company, registration of the prospect by another
Reseller or other factors as determined by the MNG.
3. Upon approval by MNG, the Reseller will have 30 days to initiate and complete
a proposal to said prospect. The proposal must be approved by MNG and receipt
confirmed by the prospect.
4. The Reseller will then have 5 months to bring the registered prospect to
contract. If a contract is not consummated in the allotted time-frame, the
prospect shall then revert back to MNG. Reseller may then re-register the
prospect subject to the above criteria and/or other criteria in effect at the
time.
The above criteria points are firm unless a special situation is approved by MNG
in writing.
WE BELIEVE THAT EACH REPRESENTATIVE AND RESELLER WILL SEE THE BENEFITS OF THIS
PROGRAM AND THE PROTECTION IT AFFORDS THEM.
APPROVED AND ACCEPTED BY THE SIGNATORY PARTIES BELOW THIS __ OF ________, 200__.
MediaNet Group Technologies, Inc. ________________________
Accepted by: __________________________ Accepted by:__________________
Chief Executive Officer Title:
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