EXHIBIT 10.2
Rental API Agreement
Agreement, dated as of June 28, 2000, between NetCreations, Inc., a New York
corporation having a place of business at 000 Xxxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000 ("NetCreations") and Itract, LLC, a Delaware limited liability company
with a place of business at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
("ITL").
WHEREAS, NetCreations and ITL have entered into a list brokering agreement,
dated as of September 29, 1999 (the "Broker Agreement"); and
WHEREAS, in connection with ITL's list brokering activities, ITL desires to use
NetCreations' Rental Application Program Interface (the "Rental API");
NOW, THEREFORE, in consideration of the mutual promises herein contained, the
parties agree as follows:
1. NetCreations shall make available the Rental API in connection with
ITL's brokering activities under the Broker Agreement, and ITL agrees
that its use of the Rental API shall be, subject to the limitations of
warranty and liability contained in this Agreement, and such different
or other terms and conditions as NetCreations shall make generally
applicable from time to time to brokers' use of the Rental API.
NetCreations may discontinue ITL's use of the Rental API at any time in
its discretion and, where practicable, will give ITL thirty (30) days
prior written notice of the same. Subject to such right of
NetCreations, ITL's use of the Rental API shall immediately cease upon
any termination of the Broker Agreement. Any rights or privileges of
ITL to use of the Rental API shall be non-transferable and
non-assignable.
2. NETCREATIONS PROVIDES THE RENTAL API, AND ITL AGREES THAT ANY USE OF
THE RENTAL API IS, ON AN "AS IS" BASIS. NETCREATIONS MAKES NO WARRANTY
AS TO THE ACCURACY OR COMPLETENESS OF ANY INFORMATION OBTAINED THROUGH
THE RENTAL API, THE INTEGRITY OF ANY OF ITL'S (OR ITL'S CLIENT'S) DATA
USED IN CONJUNCTION WITH THE RENTAL API, OR THE ADEQUACY OR CAPACITY OF
THE RENTAL API TO ATTAIN SOME OR ALL OF ITL'S OR ITL'S CLIENT'S
OBJECTIVES OR THAT THE RENTAL API SHALL OPERATE UNINTERRUPTED OR ERROR
FREE. THE USE OF THE RENTAL API IS FURTHER SUBJECT TO CERTAIN HARDWARE
AND SOFTWARE REQUIREMENTS, WHICH INFORMATION ITL MAY REQUEST FROM
NETCREATIONS.
3. NETCREATIONS MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED
-- INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE,
NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PUROSE, AND ANY
WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE --
ABOUT ITS PRODUCTS OR SERVICES, INCLUDING THE XXXXXXXXXXXXXXXX.XXX
SERVICE, THE RENTAL API AND THE PERFORMANCE OF ANY MAILINGS MADE BY IT
ON BEHALF OF ITL OR ITL'S CLIENTS, OR THAT THE XXXXXXXXXXXXXXXX.XXX
SERVICE, THE RENTAL API OR OTHER WEBSITES OR SERVICES OPERATED BY
NETCREATIONS WILL OPERATE UNINTERRUPTED, SECURE OR ERROR FREE. THIS
AGREEMENT IS NOT FOR A SALE OF GOODS.
4. IN NO EVENT SHALL ANY PARTY HERETO BE LIABLE TO ANY OTHER PARTY TO THIS
AGREEMENT FOR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL OR
PUNITIVE DAMAGES, INCLUDING LOSS OF DATA, LOSS OF SERVICE, LOSS OF
PROFITS OR LOSS OF GOODWILL, WHETHER ARISING IN CONTRACT, TORT, STRICT
LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL NETCREATIONS BE
LIABLE TO ITL, OR ANY PARTY MAKING A CLAIM OR DEMAND AGAINST ITL, FOR
MORE THAN THE AMOUNT OF MONIES RECEIVED BY NETCREATIONS FOR THE
PARTICULAR EMAILING FROM WHICH THE CLAIM AROSE. THIS LIMIT OF LIABILITY
SHALL NOT BE EXCEEDED, NOTWITHSTANDING THE NUMBER OF SUCH CLAIMS AND
DEMANDS. THIS LIMITATION OF LIABILITY SHALL BE EFFECTIVE
NOTWITHSTANDING THAT ITL'S AVAILABLE REMEDIES MAY FAIL OF THEIR
ESSENTIAL PURPOSE.
5. ITL agrees and acknowledges that the Rental API constitutes the
confidential and proprietary information of NetCreations; that
NetCreations expended significant time, effort and expense in
developing it; and that the Rental API confers a competitive advantage
upon NetCreations. Accordingly, ITL shall hold in confidence, and use
only for purposes of carrying out its broker obligations under the
Broker Agreement, all information concerning the Rental API, including
without limitation the Rental API syntax. ITL shall restrict disclosure
of such information only to its employees with a need to know. ITL
shall obtain no proprietary interest or other rights in the Rental API
by virtue of this Agreement or its use of the Rental API. ITL agrees to
return to NetCreations, immediately upon NetCreations' request, all
materials concerning the Rental API that had been furnished to it, and
to certify the same to NetCreations. ITL agrees that damages shall not
be an adequate remedy in the event of any breach or threatened breach
of its obligations regarding the use of the Rental API, and that
NetCreations shall be entitled to injunctive relief, in addition to its
other rights and remedies, in the event of any threatened or actual
breach of such obligations, without having to post bond in connection
therewith.
6. This Agreement, together with such other terms and conditions and/or
rules or policies instituted by NetCreations concerning use of the
Rental API, constitutes the entire Agreement between the parties
regarding use of the Rental API and supersedes all oral or written
agreements, either entered prior to or contemporaneously with this
Agreement, which may concern use of the Rental API. This Agreement may
not be modified except by written agreement dated subsequent to the
date of this Agreement and signed by both parties. If any portion of
this Agreement is deemed unenforceable, then the remainder of this
Agreement shall be deemed severable, and shall remain in full force and
effect.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on
their behalves by their respective duly authorized officers as of the date first
set forth above.
NETCREATIONS, INC. ITRACT, LLC
By: /s/ Xxxxx Xxxx By: /s/ Xxxxxxx Xxxxxx
------------------ ----------------------
Name: Xxxxx Xxxx Name: Xxxxxxx Xxxxxx
Title: Sr. VP Title: VP - Marketing
