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EXHIBIT 10.4
Confidential treatment requested under 5 U.S.C. Section 552(b)(4) that provides
an exemption from public disclosure of confidential financial information.
* indicates omitted material that is the subject of a confidential treatment
request that is filed separately with the Commission.
PROFIT SHARE AGREEMENT
This profit share agreement is entered as of 6th July 1999 between NETSOL USA,
INC., a Nevada Corporation. (NETSOL) and 1ST NET TECHNOLOGIES INC., a Colorado
corporation (1st NET).
BACKGROUND RECITALS
A. 1st NET is in the business of providing electronic commerce ("e-commerce")
consultation and implementation services to businesses desiring to market
products or information over the Internet.
B. 1st NET's services range from the original conceptual planning of e-commerce
solutions for its customers through the design, development, testing,
marketing and ongoing commercial operation of its customer's e-commerce
operations using the resources of the Internet and a custom World Wide Web site
tailored to a customer's e-commerce needs.
C. NETSOL contracts with 1st NET to design, develop and install a Web Site, and
to provide the following services that are required to make the Web Site
operational for the duration of this Agreement:
(1) Host and maintain the Web Site for NETSOL.
(2) Maintain the Code and ongoing technical operation of the Web Site.
(3) Update the content and information contained on the Web Site from time to
time as required to reflect changing products, prices and terms of sale.
(4) Execute marketing and commercial activities as agreed by written
instruction from NETSOL.
(5) Accept on-line electronic orders from purchasers products placed through
the Web Site.
(6) Provide Purchaser and NETSOL Web Product order fulfillment and marketing
information to NETSOL as it's received through the Web Site.
(7) Forward comments and service requests from Purchasers and other Web Site
users to NETSOL for action and response.
D. NETSOL and 1st NET commits to support the Web Site and its e-commerce
presence on the Internet during the term of this Agreement by.
Providing 1st NET with ongoing status information on all pending orders to
enable 1st NET to provide the order status information to Purchasers who have
placed orders for NETSOL Web Products through the Web Site:
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E. This Agreement sets forth the terms and conditions applicable to the range
of services to be provided by each party and each party's obligations to the
other.
NOW THEREFORE, in consideration of the mutual covenants herein contained and
for other valuable consideration, the parties agree as follows:
2.0 DESIGN, DEVELOPMENT, MARKETING AND INSTALLATION OF NETSOL WEB SITE.
2.1 Initial Meetings. Representatives of 1st NET and NETSOL shall meet as
often as possible for 1st NET to understand NETSOL'S business, marketing
processes and objectives with respect to the NETSOL Web Site and e-commerce,
and to develop a realistic time table for design, development, marketing and
installation of the Web Site.
2.2 Design and Development of the Web Site. Based upon 1st NET's understanding
of NETSOL'S business, marketing processes and e-commerce objectives, 1st NET
shall, at its sole expense, directly design and develop the NETSOL Web Site
which will reasonably implement the Web Site and e-commerce objectives.
Representatives of 1st NET and NETSOL will keep in regular contact with each
other during the design and development process in order to ensure that the
NETSOL Net Web Site will be consistent with Web Site and e-commerce objectives.
2.4 Testing of Web Site. As soon as possible after 1st NET develops the Web
Site, including its constituent Web Pages and e-commerce functionality will be
made available for testing. NETSOL, together with 1st NET, shall examine and
test the NETSOL Web Site, its constituent Web Pages and e-commerce
functionality. 1st NET shall proceed with any tests to be performed on the Web
Site to confirm that the Web Site reasonably meets all Web Site and e-commerce
objectives.
2.5 Consideration. Except as provided in Section 4.1 hereof, NETSOL shall have
no obligation to pay any compensation or other consideration to 1st NET for its
services in designing, developing, installing and hosting the Web Site.
3.0 HOSTING AND WEB SITE MAINTENANCE SERVICES TO BE PROVIDED BY 1st NET.
1st NET will provide the following hosting and Web Site maintenance services to
NETSOL for the duration of this Agreement.
3.1 Hosting the NETSOL Web Site. 1st NET will be responsible for hosting and
maintaining the Web Site developed by 1st NET for NETSOL predominantly for the
North American Market.
3.1.1 The Web Site may be placed on 1st NET's own Web Site(s), or 1st NET may
arrange to have the Web Site co-hosted on one or more third party Web Servers
depending on the level of traffic on the Web Site, the changing options
available for connecting to the Internet, and other technical considerations,
subject to approval by both parties.
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3.1.2. 1st NET will use its reasonable best efforts to minimize the amount of
time that the Web Site is offline and unavailable to potential Purchasers.
However, NETSOL understands the Web Servers will go offline from time to time
for Maintenance, and that they are subject to service disruptions by power,
telecommunications and equipment providers.
3.2. Maintain Underlying Code. 1st NET will maintain the Code and ongoing
technical functionality of the Web Site.
3.2.1. 1st NET will correct any malfunctions that develop or are discovered in
the Code underlying the Web Site that prevent the Web Site from providing
NETSOL Web Product information to potential Purchasers, accepting orders for
NETSOL Web Products, providing order fulfillment, customer enquiry and visitor
information to NETSOL, and communicating order status information to Purchasers
in a smooth and orderly fashion.
3.3. Updated Content. 1st NET will receive new and modified information
regarding the NETSOL Web products, pricing changes, terms and conditions of
sale, and other information provided by NETSOL in certain defined formats and
use that information to update the Content of the Web Site from time to time.
3.3.1. 1st NET may edit, reformat, crop, compress or otherwise modify NETSOL
image data in order to reduce file sizes as necessary to speed data
transmission to Purchasers.
3.4 1st NET will process ongoing adjustments to the inventory of NETSOL Web
Products and back order status information as it is received from NETSOL for
each NETSOL Web Product offered on the Web Site throughout the term of this
Agreement. The data will be provided to 1st NET in such format and on such
basis as mutually agreed upon between NETSOL and 1st NET.
3.4.2 The parties will use their reasonable efforts to avoid Purchaser
disappointment resulting from accepting orders for the NETSOL Web Products which
are not available or without notifying the Purchaser at the time the order is
placed, that delivery will be delayed.
3.5. Order Acceptance. 1st NET will accept on-line electronic orders from
Purchaser for NETSOL Web Products placed through the Web Site for delivery
within or outside the United States. Notwithstanding the right of NETSOL to
situate other servers locally for other regions of the world.
3.6. Product Order and Shipping Information. As orders for NETSOL Web Products
are received and accepted through the Web Site, 1st NET will electronically
provide NETSOL's with order information. NETSOL will use its reasonable efforts
to ship NETSOL Web Products which are available within a reasonably prompt
period after the order is accepted and provide 1st NET with electronic
confirmation of each NETSOL Web Product shipment.
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4.0 NETSOL OBLIGATIONS AND COMMITMENTS
NETSOL understands that the Internet is a new and rapidly evolving marketing
channel. The long-term success of the Web Site and NETSOL's e-commerce venture
will require continuing close co-operation between NETSOL and 1st NET
throughout the term of this Agreement. NETSOL will use its reasonable efforts
to support its e-commerce presence on the Internet.
4.1 [*]
4.1.1. Commissions shall be payable on the twentieth (20th) day of each month
for Net Sales of NETSOL Web Products shipped during the preceding month, and
shall be accompanied by a statement which sets forth the gross sales of NETSOL
Web Products, an itemization of deductions therefrom in arriving at the amount
of the NETSOL Net Sales, and the rates used in calculating the amount of the
commission. If 1st NET does not receive the commissions due on the 20th day of a
month by the 30th day of such month (the "Late Commissions"), 1st NET shall give
written notice (the "LC Notice") to NETSOL that the Late Commissions have not
been received by 1st NET. If 1st NET does not receive the Late Commissions
within thirty (30) days after the LC Notice has been received by NETSOL, then,
in addition to any other remedies that 1st NET may have under applicable law,
1st NET shall have the right to cease providing the services necessary for the
NETSOL 1st Net Web Site to be accessible to Internet users.
4.1.2. In the event of a termination of this Agreement by NETSOL pursuant to
Section 12.1 hereof if the cumulative commissions payable to 1st NET on the
NETSOL Net Sales of NETSOL Web Products sold through the MIRAGE/1st NET Web
Site during the Initial Period is less than the agreed costs incurred by 1st
NET at time of termination, then 1st NET shall be entitled to an additional
amount equal to the difference between that sum and the cumulative amount of
commissions paid to 1st NET on the NETSOL Net Profit of NETSOL Web Products
through the NETSOL Web Site during the Initial Period. Such amount shall be
payable by NETSOL to 1st NET in twelve equal monthly installments with the
first monthly installment being due on the last day of the month immediately
following the month which includes the effective termination date of this
Agreement, and each monthly installment thereafter being due on the last day of
the applicable month.
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4.2. Product Availability and Information. NETSOL shall determine which styles
of its products will be made available for purchase over the Internet through
the NETSOL Web Site developed and maintained by 1st NET. The determination by
NETSOL of the NETSOL Web Products available for purchase through the NETSOL Web
Site will be sufficiently broad to give a reasonable prospect for NETSOL Net
Sales of expected $1,000,000, $2,000,00 and $3,000,000 during the Initial
Period, the 12 month period following the Initial Period, and second 12 month
period following the Initial Period, respectively.
4.2.1. NETSOL will provide 1st NET with marketing oriented information,
descriptions, prices and illustrations for each of the NETSOL Web Products as
they are made available to the public. NETSOL will also provide additional
selected text and graphic material to add visual interest to the NETSOL Web
Site on an ongoing basis.
4.2.2 All of the text and graphic information provided by NETSOL will be in
such format as mutually agreed upon. Initially, graphic images will be provided
only in GIF or in JPEG formats. 1st NET may designate additional or alternative
data formats from time to time as the technology utilized in the development
and maintenance of the NETSOL Web Site evolves.
4.3. Terms Of Sale And Warranty Information. In addition to the marketing
oriented information described above, NETSOL will provide 1st NET with its
complete terms and conditions of sale, including any warranty, exchange, return
and other customer service policies and procedures for inclusion on the NETSOL
Web Site as required by law.
4.4. Advertising The Web Site. 1st Net will use its reasonable efforts to
advertise the NETSOL Web Site through 1st NET's advertising channels in a
manner which will increase the exposure of the NETSOL Web Site to potential
Internet users and which is consistent with NETSOL financial resources and
business needs.
4.4.1. NETSOL will include the URL of the NETSOL Net Web Site and an invitation
to visit the NETSOL Web Site in such of its print, electronic and other
advertising as it determines.
4.5. Purchase Support Services. NETSOL will provide reasonable Purchaser
support services and facilities to handle complaints and questions by
Purchasers, NETSOL Web product returns, Purchaser refunds, and other Purchaser
service requests through a help desk to be set up and maintained by NETSOL.
5.0 SALE OF THIRD PARTY ADVERTISING; PAYMENT OF COMMISSIONS
5.1. Sale of Other Products and Services. In the event that 1st NET desires to
(i) have 1st NET products sold through the NETSOL Net Web Site or a NETSOL Web
Browser, or (ii) have 3P Advertising placed on the NETSOL Web Site. 1st NET
shall make a detailed written proposal to NETSOL and shall obtain NETSOL's
prior written approval before selling the 1st NET Products through the NETSOL
Web Site or a NETSOL Web Browser, or permitting 3P Advertising to be placed on
the
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NETSOL Web Site. 1st NET shall be fully responsible for all aspects of selling
and fulfilling the sale of 1st NET Products sold through the NETSOL Web Site or
a NETSOL Web Browser, and for placement of 3P Advertising on the NETSOL Web
Site.
5.2.
This portion of the Agreement has been omitted and filed separately with
the Securities and Exchange Commission.
6.0. OWNERSHIP OF COPYRIGHTS AND MATERIALS.
6.1. Ownership of Copyrights. The NETSOL Web Site and e-commerce capability
developed by 1st NET under this Agreement may contain copyrighted materials
provided by NETSOL or licensed from one or more third parties in addition to
original materials developed by 1st NET. It may also contain NETSOL or third
party materials that have been modified by 1st NET. As a result, the copyrights
and derivative copyrights in the Code used to develop the Web pages and the
NETSOL Web Site may belong to a combination of 1st NET, NETSOL, and/or other
third parties.
6.1.1. 1st NET and NETSOL assumes the responsibility for obtaining any third
party copyright licenses that may be required to use the materials for 1st NET
employs in the NETSOL Web Site and its constituent Web Pages unless those
materials are specified or supplied by NETSOL. When 1st NET obtains a license
to use copyrighted material on the NETSOL Web Site, 1st NET will inform NETSOL
in writing that such material is licensed from third parties and of the terms
and scope of the license. NETSOL shall abide by the terms of any such third
party license, and shall not knowingly allow the use of the licensed materials
beyond the scope of the license obtained by 1st NET without first obtaining any
required supplemental licenses from the copyright owners.
6.1.2. NETSOL assumes the responsibility for obtaining any copyright
authorizations that may be required to use the materials specified or supplied
by NETSOL to 1st NET for inclusion in the NETSOL Web Site.
6.2. NETSOL's Copyrights. NETSOL's copyrights, trademarks or other
intellectual property rights in Content provided by NETSOL, or any other
material developed by NETSOL, shall belong to NETSOL and 1st NET shall have no
right to copy, use or display such content or materials except for the purpose
of developing and maintaining the NETSOL Web Site.
7.0. DATA SECURITY CONSIDERATIONS.
1st NET will initially use the Microsoft Internet Security Framework for
transactional security when collecting order and credit card information from
Purchasers and transmitting data and instructions to banking institutions.
Provided that 1st NET uses the Microsoft Internet Security Framework or another
industry
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standard security system approved by NETSOL, 1st NET shall have no
responsibility or liability for any failures or inadequacies of the security
system employed.
8.0. WARRANTY AND DISCLAIMER OF LIABILITY.
8.1. Functionality. 1st NET warrants that the NETSOL Web Site and its
constituent Web Pages developed by 1st NET will provide the basic functionality
described in this Agreement. If a material nonconformity appears or is
discovered during the term of this Agreement and NETSOL communicates this fact
with details to 1st NET in writing, 1st NET will use its reasonable efforts to
correct the non-conforming functionality within a reasonable time as NETSOL's
sole and exclusive remedy.
8.2. Warranty Exclusions. 1st NET does not warrant that the NETSOL Web Site
will meet NETSOL's needs, the performance of data communication lines accessing
the Web Server, the Internet, the Web Server itself nor the performance of any
aspect of the NETSOL Web Site or its constituent Web Pages that are not under
1st NET's direct control. Without limiting the generality of the foregoing, 1st
NET is not responsible for problems in the interaction of the Web Pages with
Web Browsers or versions of Web Browsers that the NETSOL Web Site was not
designed for. NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE SHALL APPLY. This is a commercial and not personal or family
transaction.
9.0. WARRANTY OF TITLE, NON-VIOLATION OF LAW, AND INDEMNIFICATION BY MIRAGE.
9.1. NETSOL Warranties. NETSOL warrants, to its knowledge, that any materials
NETSOL specifies and the Content it provides to 1st NET for use or inclusion in
the NETSOL Web Site or the constituent Web Pages under this Agreement will not
infringe any patent, copyright, trademark or trade secret of another within the
United States, and will not violate any right of publicity or privacy, be
libelous or obscene, nor will any information, recipe, formula or instruction
contained in the materials be injurious to others within the United States.
9.2. NETSOL Indemnification. NETSOL shall defend, indemnify and hold 1st NET
harmless against any claims based on an allegation that (i) any materials
specified or Content provided by NETSOL to 1st NET, except to the extent that
1st NET or any 1st NET Subcontractor has modified such materials or Content, or
(ii) any NETSOL or information provided or sold using the e-commerce facilities
of the NETSOL Web Site violates any warranty in Section 8.1.
9.3. Indemnification Limitations. NETSOL shall have no liability under this
indemnity to the extent that any infringement or other injury is established to
have resulted from the use of materials, Content, or information specified or
provided by 1st NET, any material, Content, or enhancement, improvement or
development of the NETSOL Web Site and its constituent Web Pages performed by
1st NET or any 1st NET Subcontractor. NETSOL's only liability hereunder shall
be for that portion of an infringement or injury caused by NETSOL, but not for
any infringement or injury caused by 1st NET or others.
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9.4. Notice of Claims. 1st NET shall promptly notify NETSOL when it learns of
the existence of any claim, demand, or other matter to which Netsol's
indemnification obligations may apply, and shall allow NETSOL to defend the
same at its own expense and with counsel of its own selection. 1st NET shall at
all times also have the right to full participate in the defense at its own
expense. If the claim is one that cannot by its nature be defended solely by
NETSOL, then 1st NET shall make available all information and assistance that
NETSOL may reasonably request at NETSOL's expense. Subject to NETSOL's
indemnification obligations to 1st NET as set forth in Section 9.2 hereof,
NETSOL shall have the absolute right to settle any claim, demand or other
matter on such terms at it shall determine.
9.5. Possible Actions. Should any materials specified or Content provided by
NETSOL to 1st NET for use in the NETSOL Web Site or constituent Web Pages, or
any MIRAGE Web Product or information provided or sold through the NETSOL Web
Site become or in NETSOL's opinion, be likely to become the subject of a claim
of infringement of a patent, trademark, trade secret or copyright, or that they
are likely to become the basis of a claim alleging the violation of the right
of publicity or privacy that the material is libelous or obscene, that it was
injurious to others, or otherwise violates an applicable law rule or regulation
NETSOL may:
9.5.1. If possible, procure for itself, at no cost to 1st NET, the right to
continue to use, display or provide the materials in question;
9.5.2. Request 1st NET's assistance, which will be provided by 1st NET without
cost, with the replacement or modification of the MIRAGE/1st Net Web Site or
constituent Web Pages to correct or eliminate the potential problem; or
9.5.3. Request 1st NET's assistance, which will be provided by 1st NET without
cost, with the removal of the offending material from the NETSOL Web Site or
discontinuance of the sale or distribution of any NETSOL Web Products or
information offered on the NETSOL Web Site.
10.0 WARRANTY OF TITLE, NON-VIOLATION OF LAW, AND INDEMNIFICATION BY 1ST NET.
10.1. 1st NET Warranties. 1st NET warrants that, except for materials that are
specified or Content that is provided to 1st NET by NETSOL, the Code employed
by 1st NET in the NETSOL Web Site and its constituent Web Pages, and any
materials provided by 1st NET or any 1st NET Subcontractor for use or inclusion
in the NETSOL Web Site and its constituent Web Pages, will not infringe any
patent, copyright, trademark or trade secret of another within the United
States, and will not violate any right of publicity or privacy, be libelous or
obscene, nor will any information, recipe, formula or instruction contained in
the materials be injurious to others within the United States.
10.2. 1st NET Indemnification. 1st NET shall defend, indemnify and hold NETSOL
harmless against any claims based on an allegation that any materials developed
or supplied by 1st NET, or supplied by NETSOL and modified by 1st NET or by any
1st NET Subcontractor, infringe any patent, copyright, trademark or trade
secrets belonging to a third party and from any claims alleging a violation of
the right
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of publicity or privacy, that the material is libellous or obscene, or that it
was injurious to others.
10.3. Indemnification Limitations. 1st NET shall have no liability under this
indemnity to the extent that any infringement or other injury is established to
have resulted from the use of materials, Content or information specified or
provided by NETSOL, any material, content or information not supplied or
modified by 1st NET or by any 1st NET Subcontractor, or from any material
modification, editing, revision, enhancement, improvement or development of the
NETSOL Web Site and its constituent Web Pages not actually performed by 1st NET
or by any 1st NET Subcontractor 1st NET's only liability hereunder shall be for
that portion of an infringement or injury caused by 1st NET or by any 1st NET
Subcontractor, but not for any infringement or injury caused by NETSOL or other
third parties other than 1st NET Subcontractors.
10.4. Notice of Claims. NETSOL shall promptly notify 1st NET of the existence
of any claim, demand or other matter to which 1st NET's indemnification
obligations may apply, and shall allow 1st NET to defend the same at its own
expense and with counsel of its own selection. NETSOL shall at all times also
have the right to fully participate in the defense at its own expense. If the
claim is one that cannot by its nature be defended solely by 1st NET, then
NETSOL shall make available all information and assistance that 1st NET may
reasonably request at 1st NET's expense. 1st NET agrees that it shall have no
authority to settle any claim, demand or other matter which may in any manner
affect NETSOL's trademarks or other intellectual property rights without
NETSOL's prior written consent.
10.5. Possible Actions. Should any components of the NETSOL Web Site or
constituent Web Pages, for which 1st NET is responsible, become, or in 1st
NET's opinion, be likely to become, the subject of a claim of infringement of a
patent, trademark, trade secret or copyright, or that they are likely to become
the basis of a claim alleging the violation of the right of publicity or
privacy, that the material is libelous or obscene, or that they were injurious
to others, 1st NET may do any one of the following at 1st NET's option.
10.5.1. Procure for NETSOL, at no cost to NETSOL, the right to continue to use
the NETSOL Web Site or constituent Web Pages;
10.5.2. Replace or modify the NETSOL Web Site or constituent Web Pages, at no
cost to NETSOL, to correct or eliminate the potential problem, provided that
the same function is performed by the replacement of NETSOL Web Site or
constituent Web Pages;
10.5.3. Or if the right to continue using the material cannot be obtained or
the material cannot be replaced or modified at reasonable cost, remove, at no
cost to NETSOL, the offending material from the NETSOL Net Web Site.
11.0. REMOVAL OF DISPUTED MATERIAL.
11.1. Forwarding of Complaints. In the event that 1st NET receives a written
complaint alleging that any aspect of the NETSOL Web Site, its constituent
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Web Pages, the NETSOL Web Products, 3P Advertising or information distributed
through the NETSOL Web Site is injurious to another, infringes or otherwise
violates any third parties right, or any law or regulation, 1st NET will
promptly forward a copy or the complaint to NETSOL. If NETSOL receives such a
complaint, it will promptly forward a copy of the complaint to 1st NET.
11.2. Rights to Remove Disputed Material. Either NETSOL or 1st NET shall have
the right to remove, or require 1st NET to remove, any disputed material from
the NETSOL Web Site, or cease selling or distributing any products, advertising
or information through the NETSOL Net Web Site pending the resolution of any
dispute over the content of the NETSOL Web Site or the NETSOL Web Products or
information. The removal may take place at any time after the party initiating
the removal has received or given notice of a written complaint. The party
initiating the removal of disputed material, products, advertising or
information shall promptly notify the other party of its action. Neither party
shall have any liability to the other for the removal of any material from the
NETSOL Web Site under the provisions of this Section 11.2. In the event that
1st NET shall desire to exercise its right to remove disputed material from the
NETSOL Web Site, 1st NET shall first notify NETSOL in writing that it desires
to remove disputed material from the NETSOL Web Site, which notice shall
describe the disputed material and specify the reasons for such proposed
removal. If, within ten (10) days after receipt of such notice, NETSOL notifies
1st NET in writing that it has determined that such disputed material should not
be removed, and agrees to indemnify 1st NET against any liability arising from
such determination, 1st NET shall not remove the disputed material.
12. TERM AND TERMINATION.
12.1. Term. This Agreement shall begin and become effective from July 6, 1999
and shall continue for an initial term of thirty-six (36) months after the
month which includes the Start Date. Thereafter the Agreement will
automatically be renewed for successive twelve (12) month terms unless one
party notifies the other three (3) months prior to any renewal term that it
desires to terminate this Agreement.
12.2. Late Start Date. If the Start Date does not occur by September 1, 1999
for any reason, each party shall have the right to immediately terminate this
Agreement by giving the other party written notice of its election to terminate
this Agreement.
12.3. Discretionary Termination. Notwithstanding the normal term of this
Agreement set forth in Section 12.1, within thirty (30) days after the end of
the Initial Period, each party shall have the right to terminate this Agreement
for any reason by giving the other party written notice of its election to
terminate this Agreement, which notice shall specify the effective termination
date which shall be at least thirty (30) days after the date of such written
notice.
12.4. Termination Upon Material Breach. Notwithstanding the normal term of this
Agreement set forth in Section 12.1, either party shall have the right to
terminate this Agreement if the other party defaults in any of its material
obligations under this Agreement, unless within thirty (30) days after written
notice of such default the other party remedies the default.
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12.5. Liability Limitations. Neither party to this Agreement shall be liable by
reason of the termination of this Agreement to the other for compensation,
reimbursement or damages on account of any loss of prospective profits on
anticipated sales or on account of expenditures, investments, leases or other
commitments relating to the business or goodwill of either party,
notwithstanding any law to the contrary.
13.0. CONFIDENTIALITY.
13.1. NETSOL Confidential Information. This Agreement, any confidential NETSOL
business information provided to 1st NET in writing that is clearly marked
confidential at the time of disclosure, and the pricing, terms and conditions
under which 1st NET is willing to provide its services under this Agreement,
shall be kept confidential for a period of two (2) years following the
termination of this Agreement.
13.2. Purchaser Data. During the course of its performance under this
Agreement, 1st NET will collect data and information about Purchasers visiting
the NETSOL Web Site, and shall provide such data and information to NETSOL, and
make such data and information accessible to NETSOL on a current basis. The
privacy of individual Purchaser will be maintained in accordance with the
privacy policies set forth on the NETSOL Web Site. 1st NET will also be free to
retain, evaluate and freely utilize such data and information for its own
purposes.
13.3. Exclusions. Confidential information shall not include any information
which is already known to the recipient at the time of disclosure through
lawful channels of communication; or is or becomes publicly known through no
wrongful act of the recipient; or is rightfully received from a third party
without a similar restriction and without breach of this Agreement; or is
independently developed by the recipient without breach of this Agreement; or
is furnished to a third party by the disclosing party without a similar
restriction on the third parties' rights; or is approved for release by written
authorization of the disclosing party.
14.0. GENERAL CONDITIONS.
14.1 Relationship of the Parties. No party hereto is an agent or representative
of the other, and no party shall be liable for or bound by any representation,
act or omission whatsoever of the other party. This Agreement shall in no way
constitute the parties hereto, partners or joint venturers. This Agreement is
not for the benefit of any third party.
14.2. Force Majeure. Nonperformance of either party shall be excused to the
extent that performance is rendered impossible by strike, fire, flood,
governmental acts or orders or restrictions, failure of suppliers or
contractors, or any other reason where failure to perform is beyond the control
and not caused by the negligence of the non-performing party.
14.3. Notices. All notices, demands, requests, consents, statements,
satisfactions, waivers, designations, refusals, confirmations, denials and
other communications that may be required or otherwise provided for or
contemplated hereunder shall be in writing and shall be deemed to be properly
given and received (i) upon delivery, if delivered in person or by facsimile
transmission with receipt acknowledged, (ii) one
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(1) business day after having been deposited for overnight delivery with
Federal Express or another comparable overnight courier service, or (ii) three
(3) business days after having been deposited in any post office or mail
depository regularly maintained by the U.S. Postal Service or the official
governmental postal service in the Territory, as the case may be, and sent by
registered or certified mail (or its equivalent in the Territory), postage
prepaid, addressed as follows:
If to NETSOL: If to 1st NET
/s/ Xxxxxx X. Xxxxxx /s/ Xxxxxxxx X. Xxxxx
000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000 00000 Xxxx Xxxxxxxx Xxxxx
Xxxxx Xxxxxx, Xxxxxxxxxx 00000 Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx Attention: Xxxxxxx X. Writer, Jr.
Telephone: (000) 000-0000 Fax: (000) 000-0000
or to such other person or persons at such address or addresses as may be
designated by written notice to the other parties hereunder.
14.4. Severability. If any provision or provisions of this Agreement shall be
held to be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
14.5. Binding Effect, Benefits. This Agreement shall inure to the benefit of and
be binding upon the parties hereto and their respective heirs, successors and
assigns; provided, however, that nothing in this Agreement shall be construed
to confer any rights, remedies, obligations or liabilities on any person other
than the parties hereto or their respective heirs, successors and assigns.
14.6. Title and Captions. Section headings are for convenience only and shall
not be considered in the interpretation of this Agreement.
14.7. Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original but all of which together shall
constitute one and the same document. The parties additionally acknowledge and
agree that this Agreement may be executed and delivered by facsimile. At such
time as each of the parties has a facsimile copy of this Agreement, and/or
counterparts thereof containing the signatures of all of the parties, this
Agreement shall be treated as having been fully executed and delivered for all
purposes.
14.8. Entire Agreement. This Agreement sets forth the entire agreement and
understanding of the parties relating to the subject matter herein and merges
all prior discussions between them. No modification of or amendment to this
Agreement, nor any waiver of any rights under this Agreement, shall be
effective unless in writing and signed by both parties to this Agreement.
14.9. Governing Law. This Agreement shall in all respects be interpreted,
construed in accordance with, and governed by the internal laws of the State of
California, without regard to the rules of conflict of laws.
