EXHIBIT 10.18
AGREEMENT
This Agreement ("Agreement") is made this 14th day of March, 2000, by
and between 5th Ave Channel Corp., a Florida Corporation, with its principal
place of business located at 0000 XX 000x Xxxxxx, Xxxxx Xxxxx, Xxxxxxx 00000
("5th Ave") and Infocall Communications Corp. ("INFE") with its principal place
of business located at 0000 Xxxxxx Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxx, XX 00000,
("INFE").
RECITALS
Whereas, INFE is in the business of providing Internet based career
services, software and systems to corporations ("INFE Products"); and,
Whereas, 5th Ave operates a World Wide Web site currently located at
XXX.0XXXXXXXXXXXXXXX.XXX and XXX.0XX.XXX (the "5th Ave Site") on the Internet
which includes a product sales area (the "Sales Area"), and is planning on
launching a Television Channel (the "5th Ave Channel") which will be airing
financial and entrepreneurial programming offering information and the promotion
of product sales; and,
Whereas, 5th Ave and INFE agree as described below;
NOW, THEREFORE, INFE and 5th Ave agree as follows:
1. OBLIGATIONS AND TERM
1.1 CONCEPT. Subject to the terms and conditions of this
Agreement, 5th Ave and INFE agree to co-develop and co-market a career service
("Career Service"), as defined below, on the Internet and through the
utilization of 5th Ave's cable television channel and web site. The Career
Service will consist of a searchable resume and job database, a banner
advertising program, a video corporate career profile and resume service
utilizing 5th Ave's net video concept and other services as agreed to from time
to time. INFE will be responsible for the development and implementation of a
resume and job database, banner advertising and marketing of corporate career
profile and video resumes. 5th Ave will be responsible for the video technology
of the Career Service and the proper implementation and management of the same.
The parties mutually agree to co-market the Career Service with INFE having the
responsibility to market the Career Service over the Internet and 5th Ave having
the responsibility to market the Career Service on its cable broadcast
television channel and other 5th Ave-related websites. The customers and
inquiries generated from all such activities, whether from INFE's client
database and marketing activities or 5th Ave's website, television channel, or
the outlets of 5th Ave's clients, will be known for the sake of this Agreement
as "Customers". In addition, 5th Ave agrees to promote INFE's INFe-Structure
consulting services on its website and television channel and to promote
selected INFE clients on a corporate profile basis.
1.2 VENTURE OBLIGATIONS. In addition to the other obligations
specified in this Agreement, during the term of this Agreement, INFE commits to
designing and managing
a Career Service program "Branded" for 5th Ave as modified from time to time by
mutual agreement of the parties. The Career Service will include the 0xx Xxxxxx
concepts of Netvideo Jobs, Netvideo Careers and Netvideo Employment. 5th Ave
agrees to assist in the conceptual design of the program, and to assist INFE in
the deployment, marketing and promotion of this program. Each partner agrees to
assign a project manager to this program and to maintain such throughout the
life of this program. The costs associated with this project will be shared on a
pre-negotiated basis.
1.3 TERM. The Term of this Agreement shall commenc6 as of the
date set forth above and end on the last day of the twenty-fourth (24th)
calendar month following the month in which the INFE services become active (the
"Deployment Date") and is subject to renewal as follows: The Term shall
automatically be extended for additional consecutive twelve month (12) renewal
periods (each a "Renewal Term") unless either party provides written notice to
the other party at least thirty (30) days prior to expiration of the Term, or
any renewal thereof, of its desire not to renew. Any reference herein to the
"Term" shall include each Renewal Term. This Agreement may be terminated only
upon a breach by either Party not cured within the time set forth in Section
6.13 below. If this Agreement is terminated due to a breach of contract, then
the breaching party shall not be entitled to compensation at the rates provided
herein for any transactions, as hereinafter defined, in progress.
2. PROGRAMMING.
2.1 DESIGN, COSTS, AND FEATURES AND SERVICE. The Internet
design and programming for the Career Service will be performed under the
direction of INFE with the assistance and approval of the 0xx Xxxxxx project
manager assigned to the program. The cost of the necessary personnel, software
development, computer equipment, hardware, testing, and implementation will be
borne by both parties on a negotiated basis pending approval of a budget
prepared by the venture parties. Features of the Career Service will consist of
a job and resume database search and matching capability, job advertisements,
"featured corporations profile" program, banner advertisement program and other
career and job services as agreed to from time to time. The unique focus of the
Career Service will be the use of 5th Ave's net video concepts and the
deployment of a video jobs, careers and employment service. Each party hereto
shall retain patents, trademarks, copyrights and ownership of the respective
party's invention.
2.2 SITE DEVELOPMENT, HOSTING AND MAINTENANCE. The parties
agree that the user interface on 5th Ave's site will interface with a Host
Server in ways to be determined by the technology personnel of both parties. The
user interface will be consistent with 5th Ave's design and navigation. INFE
shall incorporate 5th Ave Brand Marks, as well as any other text, graphics,
animation, scripts or other materials deemed necessary or desirable by both
parties including other 5th Ave products and services.
2.3 CUSTOMER AND TECHNICAL SUPPORT INQUIRIES. All customer or
technical support inquiries shall be directed to an e-mail address and phone
numbers specified by 5th Ave and forwarded to INFE for handling. Both parties
will assign content project managers to manage the development and maintenance
which results from the execution of this agreement.
2
2.4 INFE PERMISSIONS. INFE hereby grants to 5th Ave the
non-exclusive, non-transferable, non-assignable (except as provided in Section
6.1) right during the Term to use (i.e., to copy, transmit, distribute, display
and perform both privately and publicly) the INFE Site name and programming, the
name and other related textual, programming and graphic material that are
provided by INFE to 5th Ave for the express purpose of inclusion on the 5th Ave
Site or the 5th Ave Channel from time to time (collectively, the "INFE
Materials"), at 5th Ave's discretion. INFE also authorizes, but does not
require, 5th Ave to refer, at its discretion, in 5th Ave's advertising and
promotion to the fact that the INFE services are accessible through 5th Ave,
provided that 5th Ave does not disparage INFE, its products, services or
affiliates. All use of INFE Materials hereunder shall inure to the benefit of
INFE and shall not create any rights, title or interest in them for 5th Ave. No
other use of INFE's names, trademarks, services marks, design marks, symbols
and/or other indicia of origin or other designations confusingly similar to any
of the foregoing may be made by 5th Ave for any purpose without the prior
written approval of INFE. As between INFE and 5th Ave, INFE owns and shall
continue to own, exclusively, all right, title and interest (including, without
limitation, all rights provided under the law of copyright and trademark) in and
to the INFE Materials. Nothing above implies that 5th Ave is obliged to use
INFE's name in its marketing or site design.
2.5 5TH AVE PERMISSIONS. 5th Ave hereby grants to INFE, its
affiliates and agents the non-exclusive, non-transferable, non-assignable
(except as provided in Section 6.1) right during the Term to use (i.e., to copy,
transmit, distribute, display and perform both privately and publicly) the
Return Icon, 5th Ave's name, the name of the 5th Ave Site, the name of the 5th
Ave Channel, the name of the Sales Area and other related textual and graphic
material that are provided by 5th Ave to INFE for the express purpose of
inclusion on INFE's server, if part of the programming described under this
agreement requires programming to reside on INFE's server (collectively, the
"5th Ave Materials"). 5th Ave also authorizes INFE to refer in INFE's
advertising and promotion to the fact that INFE's products and services are
accessible through 5th Ave's web site, provided that, unless it receives written
permission from 5th Ave, any such statement does not disparage 5th Ave, its
products, services or affiliates. All use of the 5th Ave Materials hereunder
shall inure to the benefit of 5th Ave and shall not create any rights, title or
interest in them for WFE. No other use of 5th Ave's names, trademarks, services
marks, design marks, symbols and/or other indicia of origin will be made by INFE
for any purpose without the prior written approval of 5th Ave. As between ME and
0xx Xxx, 0xx Xxx owns and shall continue to own, exclusively, all right, title
and interest (including, without limitation, all rights provided under the law
of copyright and trademark) in and to the 5th Ave Materials and all names,
trademarks, service marks, design marks, symbols and/or indicia of origin
therein throughout the world and in perpetuity, subject to the permissions
granted in this Agreement.
3. FEES AND OTHER COMPENSATION.
3.1 TRANSACTIONS. Both parties agree to share in the revenues
and profits from the Career Service based on fees and schedules to be developed
by the parties which schedules will be made addenda to this Agreement and will
be attached hereto and considered a part hereof.
3.2 AUDITING. Either party shall have the right, at its
expense, upon thirty (30) business days written notice and during the other
party's normal business hours, to
3
inspect and audit the relevant site logs, books and records of the other party
for the purpose of verifying the performance, any reports, information or
payments due under this Agreement. Any such audit shall be conducted by a firm
of independent certified public accountants reasonably acceptable to the other
party. In the event of any shortfall in payment to a party is found which
exceeds ten percent (10%) of the total due to said party for the reporting
period audited, the party responsible for the shortfall shall reimburse the
other party for the reasonable fees of the accountants conducting the audit.
3.3 TRACKING AND NAMES.
3.3.1 The determination of the source for career
services and products offered by 5th Ave shall be done by identifying Customers
who link through 5th Ave or their clients and/or by the use of currently
deployed browser "Cookie" technology. In the case of users who access without
making such cookies available (or in the event that use of such cookies is
restricted by law or abandoned) and in the case of users linking to the supplied
URLs (for example, by the appearance of the supplied URL on a search site or by
obtaining a bookmark to the supplied URL from a linking Customer), then,
notwithstanding anything to the contrary herein, INFE shall cooperate reasonably
with 5th Ave to identify feasible, lawful, available alternate technological
means to identify such users. Notwithstanding the foregoing, INFE shall
separately track and report all electronic mail leads generated by the 5th Ave
inquiry forms.
3.3.2 INFE will provide to 5th Ave all names and
contact information from all Customers who have come to INFE through 5th Ave or
its clients, except in those circumstances where INFE is prevented doing so by
applicable law.
3.4 OTHER COMPENSATION. As a material inducement to enter into
this Agreement, INFE agrees that it will waive any fees that INFE normally
charges for any personnel that FAVE hires through INFE's XXXxxxxxxxx.xxx
recruitment services.
INFE agrees to issue to FAVE 700,000 shares of INFE's common stock par
value $.001 (seven hundred thousand). Such shares will not be registered under
the Securities Act and will bear a restrictive legend, which enables FAVE to
sell such shares pursuant to SEC Rule 144.
FAVE agrees to issue to INFE 100,000 shares of FAVE's common stock par value
$.001 (one hundred thousand). Such shares will not be registered under the
Securities Act and will bear a restrictive legend, which enables INFE to sell
such shares pursuant to SEC Rule 144).
4. CONFIDENTIAL INFORMATION.
4.1 DEFINITION. As used herein, "Confidential Information"
shall mean all oral or written information, of whatever kind and in whatever
form, relating to past, present or future products, software, research,
development, inventions, processes, techniques, designs or other technical
information and date, and marketing plans (including such information of third
parties that a party hereto is obligated to hold as confidential), provided that
such information has been reasonably identified as or could be reasonably
considered to be proprietary or confidential, that either party (a) may have
received prior to the date of this Agreement, whether directly from
4
the other or indirectly from third parties, or (b) may receive hereunder from
the other. The terms of this Agreement shall be deemed Confidential Information.
4.2 OBLIGATION. Each party agrees that, with respect to its
receipt of Confidential Information of the other party it shall:
4.2.1 use the same care and discretion to prevent
disclosure of such Confidential Information as it uses with similar Confidential
Information of its own that it does not desire to disclose but in no even with
less than a reasonable degree of care;
4.2.2 accept such Confidential Information and use
such Confidential Information only for the purposes permitted hereunder; and
4.2.3 restrict disclosure of Confidential Information
solely to those of its employees and agents who have a need to know and are
obligated not to disclose such Confidential Information to any third parties.
4.3 EXCEPTIONS. The restrictions of Section 4.2 shall not
apply to information that:
4.3.1 is or hereafter becomes part of the public
domain through no wrongful act, fault or negligence on the part of the
recipient;
4.3.2 the recipient can reasonably demonstrate, is
already in its possession and not subject to an existing agreement of
confidentiality;
4.3.3 is received from a third party without
restriction and without breach of this Agreement;
4.3.4 was independently developed by the recipient as
evidenced by its records; or
4.3.5 recipient is required to disclose pursuant to a
valid order of a court or other governmental body; provided, however, that the
recipient shall first have given notice to the disclosing party and shall give
the disclosing party a reasonable opportunity to interpose an objection or
obtain a protective order requiring that the Confidential Information so
disclosed be used only for the purposes for which the order was issued.
4.4 RETURN. All notes, data, reference manuals, sketches,
drawings, memoranda, electronic media, records in any way incorporating or
reflecting any Confidential Information of the disclosing party and all
proprietary rights therein shall belong exclusivity to such disclosing party and
the recipient agrees to return all copies of such materials to the disclosing
party immediately upon request or upon termination or expiration of this
Agreement.
5. LIABILITY.
5.1 PRODUCT RESPONSIBILITY. INFE and 5th Ave acknowledge that
neither advocates nor endorses the purchase or the use of any of the products or
services offered
5
by the other through their respective World Wide Web sites or otherwise, nor do
they guaranty the quality, fitness or results of any such products or their
compliance with any law or regulation.
5.2 REPRESENTATIONS AND WARRANTIES OF INFE. INFE represents
and warrants that: (a) INFE has the right to enter into this Agreement and to
grant the rights and licenses granted herein; (b) the reproduction,
distribution, transmission, public performance and public display of the INFE
Material in connection with the 5th Ave Site and the 5th Ave Channel do not and
will not (i) invade the right of privacy or publicity of any third person, (ii)
contain any libelous, obscene, indecent or otherwise unlawful material, or (iii)
infringe any patent, copyright or trademark right in any jurisdiction, or (iv)
contravene any other rights of any third person; (c) INFE has received no notice
of such invasion, violation or infringement of rights; except that the
representations and warranties in subsections (b) and (c) above shall not apply
to User Content or Product Content. Instead, INFE agrees that it shall use
commercially reasonable efforts to monitor and edit such User Content and
Product Content and shall use commercially reasonable efforts to promptly remove
any User Content and Product Content from the 5th Ave Sites which fails to
conform with the warranties and representations in subjection (b) above. "User
Content" means content uploaded by parties other than INFE; "Product Content"
means content contained in products sold by parties other than INFE. INFE shall
provide commercially reasonable customer service to consumers in connection with
the 5th Ave site and the 5th Ave Channel, subject to the cure provisions set
forth in Section 6.13.
5.3 REPRESENTATIONS AND WARRANTIES OF 0XX XXX. 0xx Xxx
represents and warrants that: (a) 5th Ave has the right to enter into this
Agreement and to grant the rights and licenses granted herein; (b) the 5th Ave
Sites and the 5th Ave Channel and the reproduction, distribution, transmission,
public performance and public display of the 5th Ave Materials as permitted
herein do not and will not (i) invade the right of privacy or publicity of any
third person, (ii) contain any libelous, obscene, indecent or otherwise unlawful
material, or (iii) infringe any patent, copyright or trademark right in any
jurisdiction; or (iv) contravene any other rights of any third person; (c) 5th
Ave has received no notice of such invasion, violation or infringement of
rights; except that the representations and warranties in subsections (b) and
(c) above shall not apply to User Content or Product Content. Instead, 5th Ave
agrees that it shall use commercially reasonable efforts to monitor and edit
such User Content and Product Content and shall use commercially reasonable
efforts to promptly remove any User Content and Product Content that fails to
conform with the warranties and representations in subsection (b) above.
5.4 BREACH OF REPRESENTATION, WARRANTY OR COVENANT. Each party
to this Agreement shall defend, indemnify and hold harmless the other party and
each of its officers, directors, employees and agents (each, an "Indemnitee")
against and in respect of any loss, debt, liability, damage, obligation, claim,
demand, judgment or settlement of any nature or kind, known or unknown,
liquidated or unliquidated, including without limitation all reasonable costs
and expenses incurred (legal, accounting or otherwise) (collectively "Damages")
arising out of, resulting from or based upon any claim, action or proceeding by
any third party alleging facts or circumstances constituting a breach of the
representations and warranties of this Section 5 made by such indemnifying party
(the "Indemnifying Party").
5.5 PROCEDURES FOR INDEMNIFICATION. Whenever a claim shall
arise for indemnification under this Section 5, the relevant Indemnitees, as
appropriate, shall promptly
6
notify the Indemnifying Party and request the Indemnifying Party to defend the
same. Failure to so notify the Indemnifying Party shall not relieve the
Indemnifying Party of any liability which the Indemnifying Party might have,
except to the extent that such failure prejudices the Indemnifying Party's
ability to defend such claim. The Indemnifying Party shall have the right to
defend against such liability or assertion in which event the Indemnifying Party
shall give written notice to the relevant Indemnitees of acceptance of the
defense of such claim and the identity of counsel selected by the Indemnifying
Party. Except as set forth below, such notice of the relevant Indemnitees shall
give the Indemnifying Party full authority to defend, adjust, compromise or
settle such action, suit, proceeding or demand with respect to which such notice
shall have been given, except to the extent that any compromise or settlement
shall prejudice the intellectual property rights of the relevant Indemnitees.
The Indemnifying Party shall consult with the relevant Indemnitees prior to any
compromise or settlement which would affect the intellectual property rights or
other rights of any Indemnitee, and the relevant Indemnitees shall have the
right to refuse such compromise or settlement and, at the refusing party's or
refusing parties' cost, to take over such defense, provided that in such event
the Indemnifying Party shall not be responsible for, nor shall it be obligated
to indemnify the relevant Indemnitees against, any costs or liability in excess
of such refused compromise or settlement. With respect to any defense accepted
by the Indemnifying Party, the relevant Indemnitees shall be entitled to
participate with the Indemnifying Party in such defense if the action or claim
requests equitable relief or other relief that could affect the rights of the
Indemnity and also shall be entitled to employ separate counsel for such defense
at such Indemnitees expense. In the event the Indemnifying Party does not accept
the defense of any indemnified claim as provided above, the relevant Indemnitees
shall have the right to employ counsel for such defense at the expense of the
Indemnifying Party. Each party agrees to cooperate and to cause its employees
and agents to cooperate with then other party in the defense of any such action
and the relevant records of each party shall be available to the other party
with respect to any such defense.
5.6 RISK ALLOCATION. Neither party will be liable to the other
party (nor to any person claiming rights derived from the other party's rights)
for incidental, indirect, consequential, special, punitive or exemplary damages
of any kind - including lost revenues or profits, loss of business or loss of
data - arising out of this Agreement (including without limitation as a result
of any breach of any warranty or other term of this agreement), regardless of
whether the party liable or allegedly liable was advised, had other reason to
know, or in fact knew of the possibility thereof.
5.7 ACKNOWLEDGEMENT OF NO WARRANTY. Excepts as expressly
provided herein, neither party warrants that their respective web sites or the
co-branded sites will perform in the manner expected or without interruption,
error or defect or that any revenue to either party will result from the
activities contemplated by this agreement. Except as expressly set forth in this
Agreement, neither party makes any warranties of any kind, express or implied,
including warranties of merchantability or fitness for a particular purpose or
warranties against infringement of any intellectual property rights not
specifically enumerated.
5.8 LIMITATION OF LIABILITY. Each party's liability to the
other party for any and all claims and damages incurred by such party relating
to or arising out of the subject matter of this Agreement, whether in contract,
tort, implied warranty, strict liability or other form of action, except for
claims for violations of a party's intellectual property rights, and any right
7
of indemnity provided herein, shall be limited to the greater of (x) the amounts
paid by INFE to 5th Ave pursuant to this Agreement for the preceding three
months or (y) one thousand dollars. 5th Ave and INFE each acknowledge that the
provisions of this Agreement were negotiated to reflect an informed, voluntary
allocation between them of all risks (both known and unknown) associated with
the transactions associated with this Agreement. The warranty disclaimers and
limitations in this Agreement are intended to limit the circumstances of
liability. The remedy limitations, and the limitations of liability, are
separately intended to limit the forms of relief available to the parties. The
provisions of this Section 5.8 shall be enforceable independent and severable
from any other enforceable or unenforceable provision of this Agreement.
6. MISCELLANEOUS PROVISIONS.
6.1 ASSIGNMENT. Except as otherwise provided herein, neither
INFE nor 5th Ave may assign this Agreement or any of its rights or delegate any
of its duties under this Agreement without prior written consent of the other,
which consent shall not be unreasonably withheld. Any purported assignment or
delegation without such required consent shall be null and void.
6.2 COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original and all of which
together shall be deemed the same Agreement.
6.3 GOVERNING LAW. This Agreement, its interpretation,
performance or any breach thereof, shall be construed in accordance with, and
all questions with respect thereto shall be determined by, internal, substantive
laws in the State of Florida. In connection with any judicial proceeding: (i)
the parties consent to the exclusive jurisdiction of the state and federal
courts having jurisdiction over Dade County, Florida; (ii) both 5th Ave and INFE
waive personal service and agree that service of any pleading, notice,
complaint, etc. may be served by certified or registered mail by one party to
the other party at such other party's address for notices as set forth above;
and (iii) such service shall be deemed effective as if personally served upon
the receiving party at its principal place of business. If either party employs
attorneys to enforce any right arising out of or relating to this Agreement, the
prevailing party shall be entitled to recover reasonable attorneys' fees, in
arbitration, litigation, or otherwise.
6.4 HEADINGS. Section hearings are for convenience only and
are not a part of the Agreement.
6.5 NO AUTHORITY TO EXECUTE OTHER PARTY'S AGREEMENTS. Neither
party has the authority to enter into agreements of any kind on behalf of the
other party.
6.6 INTEGRATION. This Agreement contains the entire
understanding of the parties hereto with respect to the transactions and matters
contemplated hereby, supersedes all previous agreements between 5th Ave and INFE
concerning the subject matter, and cannot be amended except by a writing signed
by both parties.
6.7 NO RELIANCE. No party hereto has relied on any statement,
representation or promise of any other party or with any other officer, agent,
employee or attorney for the other party in executing this Agreement except as
expressly stated herein.
8
6.8 NOTICE. All notices, demands and other communications
hereunder shall be in Writing or by written telecommunications, and shall be
deemed to have been duly given: (i) if mailed by certified mail, postage
prepaid, on the date five (5) days from the date of mailing, (ii) if delivered
by overnight courier, when received by the addressee or (iii) if sent by
confirmed telecommunication, one business day following receipt by the addressee
at the following address:
If to 5th Ave:
Xxxx Xxxxxx
Chief Operating Officer
5th Ave Channel
0000 XX 000x Xxxxxx
Xxxxx Xxxxx, Xxxxxxx 00000
If to INFE:
Xxxxxx Richfield
CEO
0000 Xxxxxx Xxxxxxxx Xxxxx
Xxxxx 000 Xxxxxx, XX 00000
or such other address as either party may specify by notice given in
writing.
6.9 PRESUMPTIONS. In resolving any dispute or construing any
provision hereunder, there shall be no presumptions made or inferences drawn (i)
because the attorneys for one of the parties drafted the agreement, (ii) because
of the drafting history of the agreement; or (iii) because of the inclusion of a
provision not contained in a prior draft, or the deletion of a provision
contained in a prior draft.
6.10 SEVERABILITY. In the event any provision of this
Agreement shall for any reason be held to be invalid, illegal or enforceable in
any respect, the remaining provisions shall remain in full force and effect.
6.11 SURVIVAL. The provisions of Section 4 and 5 shall survive
termination or expiration of the Agreement.
6.12 WAIVER. No waiver of any breach of any provision of this
Agreement shall constitute a waiver of any prior, concurrent or subsequent
breach of the same of any other provisions hereof, and no waiver shall be
effective unless made in writing and signed by an authorized representative of
the waiving party.
6.13 RIGHT TO CURE. In the event either party desires to
assert any remedies for breach of this Agreement, the party desiring to assert
such remedies shall give the other party thirty (30) days written notice and an
opportunity to cure within ten (10) business days.
9
IN WITNESS WHEREOF, the parties hereto caused their duly authorized
officers to execute this Agreement as of the date set forth above. 5th Ave
Channel Corp.
5th Ave Channel Corp.
------------------------------- By:
Officer --------------------------------------
Name: Xxxxxx Xxxxx
Title: President, Chief Executive
Infocall Communications Corp.
------------------------------- By:
Officer --------------------------------------
Name: Xxxxxx X. Richfield
Title: President, Chief Executive
10
