SERVICE AGREEMENT
This Service Agreement (the "Agreement") is made as of this 10th day of May
1996 by and between Consumer Net Marketplace, Inc., a California corporation
("CNM"), Consumer Net Partners, a California general partnership, and Consumers
On-Line Development, Inc., a California corporation (collectively "CNP-COLD")
with respect to the following facts:
RECITALS
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A. Consumer Net Partners ("CNP") is engaged in the business of
developing, financing, and overseeing the Consumer Net Marketplace electronic
shopping mall on the Internet (the "CNM Shopping Mall").
B. Consumers On-Line Development, Inc. ("COLD") is engaged in the
business of managing and overseeing the development, creation, establishment,
and marketing of the CNM Shopping Mall.
C. Consumer Net Marketplace, Inc. ("CNM") is engaged in the business of
developing, operating, managing, and marketing Websites and shopping malls on
the Internet.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, THE PARTIES HERETO AGREE AS FOLLOWS:
1. SERVICES
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CNM agrees to provide technical support, equipment, and any assistance
necessary in creating, developing, operating, maintaining, managing, and
marketing the CNM Shopping Mall.
2. CONSIDERATION
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In consideration for the services described in Section 1, CNM shall retain
a 25% net profits interest in the CNM Shopping Mall.
3. NOTICE
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Notice will be deemed to be given by one party to the other parties of this
Agreement upon personal delivery by messenger, air courier, express mail or
certified registered mail, return receipt requested, or upon facsimile or
telegram, or three days after mailing by first class mail by the party giving
the notice, addressed to the parties as follows,
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or to any other address or facsimile numbers provided to the parties in
writing in accordance with this Agreement by the party making the change:
If to CNM: Consumer Net Marketplace, Inc.
1919 Williams Street, Suite 220
Simi Valley, California 93065
If to CNP: Consumer Net Partners
5737 Kanan Road, Suite 125
Agoura Hills, California 91031
If to COLD: Consumers On-Line Development, Inc.
26500 West Agoura Road, Suite 301
Calabasas, California 91302
4. WAIVERS
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If any party shall at any time waive any rights hereunder resulting from
any breach by the other party of any of the provisions of this Agreement,
such waiver is not to be construed as a continuing waiver of other breaches
of the same or other provisions of this Agreement. Resort to any remedies
referred to herein shall not be construed as a waiver of any other rights and
remedies to which such party is entitled under this Agreement or otherwise.
5. SUCCESSORS AND ASSIGNS
----------------------
Each covenant and representation of this Agreement shall inure to the
benefit of and be binding upon each of the parties, their personal
representatives, assigns and other successors in interest.
6. ATTORNEY'S FEES
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In the event that any party must resort to legal action in order to enforce
the provisions of this Agreement or to defend such action, the prevailing party
shall be entitled to receive reimbursement from the nonprevailing party for all
reasonable attorney's fees and all other costs incurred in commencing or
defending such action, or in enforcing this Agreement, including but not limited
to post judgment costs.
7. ENTIRE AND SOLE AGREEMENT
-------------------------
This Agreement constitutes the entire agreement between the parties and
supersedes all agreements, representations, warranties, statements, promises and
undertakings, whether oral or written, with respect to the subject matter of
this Agreement. This Agreement may be modified only by a written agreement
signed by all parties.
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8. GOVERNING LAW
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This Agreement shall be governed by and construed in accordance with the
laws of the State of California applicable to contracts entered into and
performed entirely in the State of California and without regard to conflicts of
law. The venue for any legal proceedings under this Agreement will be in the
appropriate forum in the County of Los Angeles, State of California.
9. BINDING ARBITRATION
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Any dispute under this Agreement will be resolved by binding arbitration
conducted in accordance with the rules and procedures of the American
Arbitration Association as they are then in effect in the County of Los Angeles,
State of California. In order to select an arbitrator, each party to the
dispute will select an arbitrator of its choice, and those selected arbitrators
will then select by mutual agreement a single arbitrator for the proceeding.
The decision of the arbitrator shall be final and binding on the parties to this
Agreement, and judgment thereon may be entered in the Superior Court for the
County of Los Angeles or any other court having jurisdiction. Each party to
this Agreement will advance one-third of the arbitrator's fees; however, all
costs of the arbitration proceeding to enforce this Agreement, including
attorneys' fees and witness expenses, shall be paid by the party against whom
the arbitrator rules. It is expressly agreed that the parties to any such
arbitration may take discovery as contemplated and provided for by California
Code of Civil Procedure Section 1283.05. Notwithstanding anything herein to
the contrary, the parties hereto shall not be required to submit a claim to
arbitration if the claim is for temporary or preliminary equitable or injunctive
relief that could not practicably be heard in a timely fashion through the
arbitration process.
10. RIGHTS CUMULATIVE
-----------------
All rights and remedies under this Agreement are cumulative, and none is
intended to be exclusive of another. No delay or omission in insisting upon the
strict observance of performance of any provision of this Agreement, or in
exercising any right or remedy, shall be construed as a waiver or relinquishment
of such provision, nor shall it impair such right
or remedy. Every right and remedy may be exercised from time to time and as
often as deemed expedient.
11. CAPTIONS
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The paragraph and other headings contained in this Agreement are for
reference purposes only, and shall not limit or otherwise affect the meaning
hereof.
12. LEGAL HOLIDAYS
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In the case where the date on which any action required to be taken,
document required to be delivered or payment required to be made is not a
business day in Los
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Angeles, California, such action, delivery or payment need not be made on
that date, but may be made on the next succeeding business day.
13. COUNTERPARTS
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This Agreement may be executed simultaneously in any number of
counterparts, each of which counterparts shall be deemed to be an original, and
such counterparts shall constitute but one and the same instrument.
14. PARTIES
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This Agreement shall inure solely to the benefit of and shall be binding
upon the parties hereto and their respective successors, legal representatives
and assigns, and no other person shall have or be construed to have any
equitable right, remedy or claim under or in respect of or by virtue of this
Agreement or any provision contained herein.
15. AUTHORITY
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Each signatory to this Agreement does hereby represent and warrant that he
has the authority to execute this Agreement on behalf of the party to this
Agreement for whom he is executing this Agreement.
CNM: CONSUMERNET MARKETPLACE, INC.
By: /s/ Fredrick Rice
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Fredrick Rice, President
CNP: CONSUMER NET PARTNERS
By: CONSUMER ON-LINE DEVELOPMENT, INC.,
Managing Partner
By: /s/ Fredrick Rice
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Fredrick Rice, President
COLD: CONSUMER ON-LINE DEVELOPMENT, INC.
By: /s/ Fredrick Rice
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Fredrick Rice, President
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