EXHIBIT 10.1
[XXXXXXXXX.XXX LOGO]
SALES ORDER CONTRACT
Sales Order Number: _________ (Internal Use Only)
On ________day of _________, 200__, this Agreement made has been entered between
and by XxxXxxxxx.xxx, Inc., of 0000 X. Xxxxxxxxxx Xxxx. Suite 201, Ft.
Lauderdale, Florida 33308 hereinafter referred to as ("NetStairs"), and
_______________________________________________________________________________
Located at ____________________________________________________________________
________________________________________hereinafter referred to as ("CLIENT").
WHEREAS, CLIENT desires to obtain services of NetStairs,
WHEREAS, NetStairs is capable of providing the scope of services in which the
CLIENT has retained NetStairs;
WHEREAS, both parties are desirous to enter into this agreement based on the
following terms and conditions:
1. DESCRIPTION OF SERVICE.
NetStairs provides to clients the capability of e-mailing video messages also
known as "Cybermercial" through a proprietary process via the World Wide Web.
NetStairs also provides full service production services to clients for
broadcast through e-mailings.
NetStairs shall produce and broadcast on behalf of CLIENT a video message of up
to 30 seconds in length. CLIENT shall work with NetStairs to create, review and
approve script and upon its storyboard approval, set production schedule. Upon
completion of Cybermercial, CLIENT hereby agrees to review, make any post
production changes if necessary, and approve final Cybermercial product before
broadcast.
2. PAYMENT
a. Exhibit A sets forth the Sales Worksheet includes total cost.
Upon execution of this Agreement one half of the Total Cost
shall be paid. Three (3) days prior to e-mail broadcast the
balance of total cost shall be paid.
b. From the proceeds of revenue derived from the sale of
promotion services provided by NetStairs, CLIENT agrees to pay
NetStairs the consideration as set forth on form of Exhibit
"A" attached hereto, which is a part of this Agreement. All
payment are made payable to XxxXxxxxx.xxx, Inc. in accordance
with Exhibit "A."
3. DELIVERY
Time is of the essence in the performance of this Contract. Broadcast of
CLIENT's video mailing will occur over a three week period commencing with
script development on the date this Agreement has been signed by both parties.
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2821 E. Commercial Blvd. Suite 000, Xxxx Xxxxxxxxxx, Xx. 00000. USA.
(O) 000-000-0000 (F) 000-000-0000
xxxx://xxx.XxxXxxxxx.Xxx.xxx email: xxxxxxx@XxxXxxxxx.Xxx.xxx
[XXXXXXXXX.XXX LOGO]
4. DISCLAIMER.
CLIENT HEREBY ACKNOWLEDGES AND AGREES THAT THE SERVICE BEING PROVIDED TO CLIENT
IS BROADCAST OVER THE WORLD WIDE WEB OR INTERNET AS IS, WITH ALL HARDWARE AND
TECHNICAL IMPERFECTIONS INHERENTLY COMMON ON THE INTERNET AND THAT NETSTAIRS,
ITS PARTNERS, AND ITS AFFILIATES DO NOT MAKE ANY REPRESENTATION OR WARRANTIES,
EXPRESSED OR IMPLIED, AS TO THE USEFULNESS, ACCURACY, COMPLETENESS, FEASIBILITY,
RELIABILITY OR EFFECTIVENESS OF THE SERVICE OR THAT THE OPERATION OF THE SERVICE
WILL BE UNINTERRUPTED OR ERROR-FREE. WITHOUT LIMITATION, NETSTAIRS HEREBY
DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE
IN CONNECTION WITH THE SERVICE. IN NO EVENT SHALL NETSTAIRS BE LIABLE TO ANY
CLIENT FOR ANY FAILURE, DISRUPTION, DOWNTIME, INTERRUPTION, MISCALCULATION,
INCORRECT LINKAGE, AND LOSS OF DATA, DELAY, INACCURACY OR OTHER NONPERFORMANCE
OF THE SERVICE. CURRENT TECHNOLOGY IN USE SUPPORTS IBM, MICROSOFT AND INTEL
COMPATIBLE CHIP BASED OPERATING SYSTEMS AND HARDWARE. APPLE USERS MAY HAVE TO
DOWNLOAD A SUPPLIED DRIVER TO ACCESS VIDEO EMAIL.
5. LIMITATION OF LIABILITY.
IN NO EVENT SHALL NETSTAIRS BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, FOR LOST
PROFITS, IN ANY WAY, ARISING OUT OF OR RELATING TO THE SERVICE, WHETHER OR NOT
NETSTAIRS HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES.
6. ERRORS AND OMISSIONS
The material contained in NetStairs productions have been checked for accuracy;
however, all material is provided without any express or implied warranties.
Neither NetStairs nor its affiliates assume responsibility for any errors or
omissions in the material. In no event shall NetStairs or its affiliates be
liable for any special, indirect or consequential damages resulting from any use
or performance of, or content errors or omissions in the material, even if
notified in advance of the potential for such damages. All users of the material
agree that access to and use of the material is subject to the terms and
conditions stated in this legal notice, as well as all applicable laws.
NetStairs will not be liable for client-produced content that may violate
copyright, trademark or patent laws.
7. INSPECTION.
CLIENT will have a reasonable time to review all editorial content 3 days before
broadcast. This would include the script before production, the finished video
after production and the email graphic interface prior to broadcast.
8. TERMINATION
It is hereby agreed that in case of a material breach (violation) by either
party of any of the provisions contained in this Contract, the other party shall
have the right to terminate this Contract at its option upon written notice.
NetStairs reserves the right to discontinue service to any user, with or without
cause or notice to any Client and without liability to such Client or NetStairs.
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2821 E. Commercial Blvd. Suite 000, Xxxx Xxxxxxxxxx, Xx. 00000. USA.
(O) 000-000-0000 (F) 000-000-0000
xxxx://xxx.XxxXxxxxx.Xxx.xxx email: xxxxxxx@XxxXxxxxx.Xxx.xxx
[XXXXXXXXX.XXX LOGO]
9. FORCE MAJEURE
If performance of this Contract or any obligation under this Contract is
prevented, restricted, or interfered with by causes beyond either party's
reasonable control ("Force Majeure"), and if the party unable to carry out its
obligations gives the other party prompt written notice of such event, then the
obligations of the party invoking this provision shall be suspended to the
extent necessary by such event. The term Force Majeure shall include, without
limitation, acts of God, fire, explosion, vandalism, storm or other similar
occurrence, orders or acts of military or civil authority, or by national
emergencies, insurrections, riots, wars, strikes, lock-outs, work stoppages, or
other labor disputes, supplier failures, shortages, breach, or delays.
The excused party shall use reasonable efforts under the circumstances to avoid
or remove such causes of non-performance and shall proceed to perform with
reasonable dispatch whenever such causes are removed or ceased. An act or
omission shall be deemed within the reasonable control of a party if committed,
omitted, or caused by such party, or its employees, officers, agents, or
affiliates.
10. DISPUTE RESOLUTION
In the event, any dispute or controversy arising out of or relating to this
Contract, the parties agree to exercise their best efforts to resolve the
dispute as soon as possible. The parties shall, without delay, continue to
perform their respective obligations under this Contract, which are not effected
by the dispute. To invoke the dispute resolution process set forth in this
paragraph, the invoking party shall give to the other party written notice of
its decision to do so, including a description of the issues subject to the
dispute and a proposed resolution thereof. Designated representatives of both
parties shall attempt to resolve the dispute within five (5) working days after
such notice. If those designated representatives cannot resolve the dispute, the
parties shall meet at a mutually agreeable location and describe the dispute and
their respective proposals for resolution by a designated representative of both
parties, who shall act in good faith to resolve the dispute. If the dispute is
not resolved within 30 calendar days after such meeting, the dispute shall be
submitted to binding arbitration in accordance with the Arbitration provision of
this Contract.
11. ARBITRATION.
Any controversies or disputes arising out of or relating to this Contract shall
be resolved by binding arbitration in accordance with the then current
Commercial Arbitration Rules of the American Arbitration Association. The
parties shall endeavor to select a mutually acceptable arbitrator knowledgeable
about issues relating to the subject matter of this Contract. In the event the
parties are unable to agree to such a selection, each party will select an
arbitrator and the arbitrators in turn shall select a third arbitrator. The
arbitration shall take place at a location that is reasonably centrally located
between the parties, or otherwise mutually agreed upon by the parties.
All documents, materials, and information in the possession of each party that
are in any way relevant to the claim(s) or dispute(s) shall be made available to
the other party for review and copying no later than 30 days after the notice of
arbitration is served.
The arbitrator(s) shall not have the authority, power, or right to alter,
change, amend, modify, add, or subtract from any provision of this Contract or
to award punitive damages. The arbitrator shall
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2821 E. Commercial Blvd. Suite 000, Xxxx Xxxxxxxxxx, Xx. 00000. USA.
(O) 000-000-0000 (F) 000-000-0000
xxxx://xxx.XxxXxxxxx.Xxx.xxx email: xxxxxxx@XxxXxxxxx.Xxx.xxx
[XXXXXXXXX.XXX LOGO]
have the power to issue mandatory orders and restrain orders in connection with
the arbitration. The award rendered by the arbitrator shall be final and binding
on the parties, and judgment may be entered thereon in any court having
jurisdiction. The agreement to arbitration shall be specifically enforceable
under the prevailing arbitration law. During the continuance of any arbitration
proceeding, the party shall continue to perform their respective obligations
under this Contract.
12. COLLECTION OF PAYMENT
All production payments must be paid in full at the time of execution of this
Agreement along with 50% deposit on Cybermercial transmission. CLIENT hereby
agrees to redeem the remaining 50% balance of the payment 3 days prior to
transmission of Cybermercial.
If CLIENT should fail to make any of the payments set out in the above schedule,
NetStairs at its option may treat the CLIENT's failure to pay as a material
breach of this Contract, and may keep the deposit and terminate this Contract
and/or seek legal remedies.
13. CONFIDENTIALITY.
Both parties acknowledge that during the course of this Contract, each may
obtain confidential information regarding the other party's business. Both
parties agree to treat all such information and the terms of this Contract as
confidential and to take all reasonable precautions against disclosure of such
information to unauthorized third parties during and after the term of this
Contract. Upon request by either party, all documents relating to the
confidential information will be returned to such owner.
14. REVERSE ENGINEERING/TAMPERING
Client hereby agrees and acknowledges that under no circumstances either
directly or indirectly, implied or consequential shall reverse engineer or
tamper with the content of Cybermercial at any time without written consent of
the Company. Failure to comply shall result in an irreparable damage and the
company shall seek legal action to protect its rights and obtain financial
remuneration for such damages, lost revenue and other related matters but not
limited to legal fees and court costs.
15. CYBERMERCIAL FORM & COPYRIGHT PROTECTION
Client hereby acknowledges and agrees that XxxXxxxx.xxx and Cybermercial are
registered trademarks of the Company. The Company hereby acknowledges that the
video content produced and or supplied by or for the Client shall remain the
property of the Client at all times and Client hereby Agrees and acknowledges
that the converted video content supplied by the Client in form of Cybermercial
shall remain as property of XxxXxxxxx.xxx and it shall not be used for any
purpose whatsoever without written consent of the Company. The Cybermercial
produced and or converted video content Cybermercial shall be broadcasted
exclusively by XxxXxxxxx.xxx
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2821 E. Commercial Blvd. Suite 000, Xxxx Xxxxxxxxxx, Xx. 00000. USA.
(O) 000-000-0000 (F) 000-000-0000
xxxx://xxx.XxxXxxxxx.Xxx.xxx email: xxxxxxx@XxxXxxxxx.Xxx.xxx
[XXXXXXXXX.XXX LOGO]
16. USE OF CYBERMERCIAL TRADEMARK
The Company hereby grants the use of "Cybermercial Powered by XxxXxxxxx.xxx"
logo on all broadcasted Cybermercials on behalf of Client in form of watermark
or displayed stamp to the client and such a logo shall not be used for any other
purpose without written consent of the Company.
17. ASSIGNMENT.
It is agreed by the parties that there will be no assignment or transfer of this
Contract, nor any interest in this Contract. Action by a party in violation of
this provision will dismiss the other party from any further obligations arising
from this Contract.
18. ENTIRE CONTRACT.
This Contract contains the entire agreement of the parties and there are no
other promises or conditions in any other agreement whether oral or written.
This Contract supersedes any prior written or oral agreements between the
parties.
19. SEVERABILITY.
If any provision of this Contract shall be held to be invalid or unenforceable
for any reason, the remaining provisions shall continue to be valid and
enforceable. If a court finds that any provision of this Contract is invalid or
unenforceable, but that by limiting such provision it would become valid and
enforceable, then such provision shall be deemed to be written, construed, and
enforced as so limited.
20. WAIVER OF CONTRACTUAL RIGHT.
NetStairs' failure not to exercise or enforce any right or provision of this
agreement shall not constitute a waiver of other rights or provisions, or as a
modification or amendment of this contract.
If any provision of this contract shall be held to be invalid or unenforceable,
then (i) the validity of other provisions of this contract shall not in any way
be affected or impaired thereby, and (ii) such provision shall be reformed to
the extent necessary to make such provision valid and enforceable.
This contract shall be governed by, and construed in accordance with the laws of
the State of Florida, excluding conflicts of law provisions.
21. APPLICABLE LAW.
The laws of the State of Florida, Broward County, shall govern this Agreement.
The parties have executed this Agreement, the date executed as written in first
page of the Agreement.
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2821 E. Commercial Blvd. Suite 000, Xxxx Xxxxxxxxxx, Xx. 00000. USA.
(O) 000-000-0000 (F) 000-000-0000
xxxx://xxx.XxxXxxxxx.Xxx.xxx email: xxxxxxx@XxxXxxxxx.Xxx.xxx
[XXXXXXXXX.XXX LOGO]
IT IS XXXXXX AGREED AND ACCEPTED.
CLIENT / Company Name:____________________________________________
By: X________________________________________________________
Print Name:_______________________________________________________
Title: _________________________________________________________
XXXXXXXXX.XXX, INC.
By: X________________________________________________________
Authorized Personnel:_____________________________________________
Title: _________________________________________________________
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2821 E. Commercial Blvd. Suite 000, Xxxx Xxxxxxxxxx, Xx. 00000. USA.
(O) 000-000-0000 (F) 000-000-0000
xxxx://xxx.XxxXxxxxx.Xxx.xxx email: xxxxxxx@XxxXxxxxx.Xxx.xxx
[XXXXXXXXX.XXX LOGO]
CYBERMERCIAL SALES WORKSHEET
Contact Name:
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Company Name:
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Company Address Line 1:
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Company Address Line 2:
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City: State: Zip:
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Phone: ( ) -- Fax: ( ) --
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Email:
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Amount of e-mailing:
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Start Date of e-mailing: / / Ending Date of e-mailing: / /
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Promotion Summary:
Comments:
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EXHIBIT A
REPRESENTATION AND WARRANTIES:
CLIENT represents that all matters stated below shall be its responsibility:
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2821 E. Commercial Blvd. Suite 000, Xxxx Xxxxxxxxxx, Xx. 00000. USA.
(O) 000-000-0000 (F) 000-000-0000
xxxx://xxx.XxxXxxxxx.Xxx.xxx email: xxxxxxx@XxxXxxxxx.Xxx.xxx
