ADVERTISING EXCHANGE AGREEMENT
This Agreement is entered into the 5th day of January, 2001 (the "Effective
Date")
BETWEEN:
FETCHOMATIC GLOBAL INTERNET INC. a corporation, with its principal offices at
1521 - 56th Street, Delta, British Columbia, V4L 2A9
("fetchOmatic")
AND:
POPNUVO.COM INC., a corporation with its principal office at 123 W. 47th Avenue,
Vancouver, British Columbia, V5Y 2Y1
("Popnuvo")
WHEREAS:
A. Popnuvo and fetchOmatic each operate a web site; and
B. Each party wishes to have the other party advertise on its web site and
to be advertised at the other party's web site, on the terms and conditions
contained in this Agreement.
NOW, THEREFORE, in consideration of the promises and mutual covenants and
agreements set forth herein, the parties agree as follows:
SECTION 1
DEFINITIONS
1.1 FETCHOMATIC WEBSITE means the website located at the URL
www.fetchomatic.com operated by fetchOmatic.
1.2 POPNUVO WEBSITE means the website located at the URL www.popnuvo.com
operated by Popnuvo.
1.3 INCLUDING means including without limitation to the generality of any
description, definition, term or phrase preceding that word and the word
"include" and its derivatives will be construed accordingly.
1.4 BUILDING means an image of a building, and the HTML code associated
therewith, located at the fetchOmatic Website and labelled with a trade-mark or
brand of an advertiser.
1.5 TRADE SECRETS mean information that:
(a) is used or may be used in business for any commercial advantage;
(b) derives independent economic value, actual or potential, from not being
generally known to the public or to other persons who can obtain economic value
from its disclosure or use;
(c) is the subject of reasonable efforts to prevent it from becoming
generally known; and
(d) the disclosure of which would result in harm or improper benefit.
SECTION 2
FETCHOMATIC'S OBLIGATIONS
2.1 BUILDING ADVERTISEMENT. On receipt of a trademark image in ____ format
and the associated HTML code pursuant to paragraph 3.2, fetchOmatic will provide
a Building branded with such trademark.
2.2 FEATURED ARTIST. On receipt of a promotional photo of an artist (a
"Featured Artist") in ____ format (an "Artist Photo") and a MP3 file of music
from the Featured Artist from Popnuvo, fetchOmatic will place the Artist Photo
and a link to such MP3 file on the front page of the fetchOmatic Website.
Popnuvo may provide fetchOmatic a new Artist Photo and MP3 file no more than
once a week, and fetchOmatic will substitute the Artist Photo and MP3 file then
on the fetchOmatic Website with such new Artist Photo and MP3 file.
2.3 LINK. On receipt of a graphic image and associated HTML code (the
"Popnuvo Link") from Popnuvo, fetchOmatic will place the Popnuvo link on the
fetchOmatic Website.
2.4 FETCHOMATIC ADVERTISEMENTS. fetchOmatic will provide Popnuvo a graphic
image and HTML code therefor (the "fetchOmatic Link"). fetchOmatic may, from
time to time provide a replacement fetchOmatic Link, in which case, Popnuvo will
substitute the fetchOmatic Link then at the Popnuvo Website with such
replacement fetchOmatic Link.
2.5 PAYMENT. fetchOmatic will pay Popnuvo the following amounts (in
Canadian dollars):
(a) $1500.00 on execution of this Agreement; and
(b) $500.00 within one month of the Effective Date.
SECTION 3
POPNUVO'S OBLIGATIONS
3.1 FETCHOMATIC LINK PLACEMENT. On receipt of the fetchOmatic Link from
fetchOmatic, Popnuvo will place the fetchOmatic Link: (a) on the first page seen
by visitors to the Popnuvo Website, under the text "GREAT MUSIC BROUGHT TO YOU
BY"; (b) on the then current Featured Artist web page at the Popnuvo Website;
(c) on all other web
pages at the Popnuvo Website devoted to artists and (d) on the web page at the
Popnuvo Website entitled "Competition".
3.2 POPNUVO LINK. Popnuvo will provide (i) the Popnuvo Link; (ii) a
trade-mark image and associated HTML code therefor and (iii) no more than once a
week, an Artist Photo and associated MP3 file, to fetchOmatic. Popnuvo may,
from time to time, provide a replacement Popnuvo Link, in which case,
fetchOmatic will substitute the Popnuvo Link then at the fetchOmatic Website
with such replacement Popnuvo Link.
SECTION 4
LICENSES
4.1 FETCHOMATIC LICENSE. Popnuvo grants to fetchOmatic, for the term of
this Agreement, a limited, nonexclusive, royalty free license to copy and
reproduce the trademark and associated HTML code, the Popnuvo Link and
promotional photos and MP3 files provided to fetchOmatic, for the purposes of
placing such on the fetchOmatic Website and allowing access to users of the
fetchOmatic Website.
4.2 POPNUVO LICENSE. fetchOmatic grants to Popnuvo, for the term of this
Agreement a limited, nonexclusive, royalty free license to copy and reproduce
the fetchOmatic Link for the purposes of placing such on the Popnuvo Website.
4.3 ALL RIGHTS RESERVED. Each party reserves all rights in its copyrighted
works not expressly granted in this Agreement.
SECTION 5
CONFIDENTIALITY
5.1 CONFIDENTIAL INFORMATION. Each party acknowledges that the other party
(the "DISCLOSER") may disclose to such party (the "RECIPIENT"), or allow the
Recipient access to, Trade Secrets and other information, in the possession of
the Discloser and owned by the Discloser or entities affiliated, associated or
related to the Discloser, or by their respective suppliers, customers or other
business partners, that is not generally known to the public, including
financial information, legal, corporate, marketing, product, technical,
personnel, customer and supplier information and any other information, in
whatever form or media, specifically identified as confidential by the
Discloser, or the nature of which is such that it would generally be considered
confidential in the industry of the Discloser, or which the Discloser is obliged
to treat as confidential or proprietary (collectively, "CONFIDENTIAL
INFORMATION"). The Recipient acknowledges that the Discloser's Confidential
Information is of significant value to the Discloser.
5.2 LIMITATIONS. The non-disclosure obligations of the Recipient under this
Section will not apply to Confidential Information which the Recipient can
establish:
(a) is, or becomes, readily available to the public other than through a
breach of this Section;
(b) is disclosed, lawfully and not in breach of any contractual or other
legal obligation, to the Recipient by a third party; or
(c) through written records, was known to the Recipient, prior to the date
of first disclosure of the Confidential Information to the Recipient by the
Disclosure.
5.3 OWNERSHIP OF CONFIDENTIAL INFORMATION. The Recipient acknowledges that
Confidential Information is and will be the sole and exclusive property of the
Discloser or its designate and that the Recipient will not acquire any right,
title or interest in or to any Confidential Information.
5.4 OBLIGATIONS. The Recipient will keep all Confidential Information
strictly confidential and will take all necessary precautions against
unauthorized use or disclosure of the Confidential Information during the term
of this Agreement and for a period of 2 years thereafter. Without limitation,
the Recipient will not, and will take all reasonable steps to ensure that its
employees do not, directly or indirectly, disclose, allow access to, transmit or
transfer the Confidential Information to a third party without the Discloser's
consent, or use or reproduce Confidential Information, in any manner, except as
reasonably required to fulfil the purposes of this Agreement. Notwithstanding
the foregoing, to the extent that the Recipient can establish it is required by
law to disclose any Confidential Information, it will be permitted to do so,
provided that notice of this requirement to disclose is first delivered to the
Discloser, so that it may contest this potential disclosure. The Recipient will
ensure that all copies of Confidential Information are clearly marked, or
otherwise identified as confidential and proprietary to the Discloser, and are
stored in a secure location while in the Recipient's possession, control, charge
or custody.
SECTION 6
WARRANTIES, COVENANTS AND INDEMNIFICATION
6.1 WARRANTIES AND COVENANTS OF GM. Each party represents, warrants and
covenants to the other party the following:
(a) that it has the full power to enter into this Agreement and perform the
services and grant the licenses provided for herein;
(b) to the best of its knowledge, each party has the right to provide the
materials provided to the other party pursuant to this Agreement, including all
written materials and advertisements, including, as applicable, the Popnuvo
Link, the fetchOmatic Link, Artist Photos, and MP3 files (collectively the
"Materials"), and such Materials do not and will not infringe the property
rights of third parties; and
(c) the Materials provided to the other Party does not and will not contain
any libel, defamation, obscenity or pornography and will not constitute a breach
of any rights of privacy or publication of any other party and will not
contravene the laws of any jurisdiction.
6.2 NO WARRANTIES. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN SECTION
6.1, EACH PARTY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS
OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD
PARTY RIGHTS, AND FITNESS FOR A PARTICULAR PURPOSE. Without limiting the
generality of the foregoing, each party makes no warranty that access to its web
site (the fetchOmatic Website or the Popnuvo Website, as appropriate) will be
uninterrupted, timely, secure or error-free.
6.3 INDEMNITY. Each party agrees to defend, indemnify and hold harmless the
other party and its directors, officers, its employees, sublicensees, and agents
from and against all claims, defense costs (including reasonable attorneys'
fees), judgments and other expenses arising out of or on account of claims of:
(a) alleged infringement or violation of any intellectual property right,
Trade Secret, right of publicity or privacy (including but not limited to
defamation) or other proprietary right with respect to the Materials provided to
the other party;
(b) any negligent act, omission, or wilful misconduct in the performance of
this Agreement; and
(c) breach of its obligations under this Agreement.
6.4 OBLIGATIONS RELATING TO INDEMNITY. Each party's obligation to indemnify
requires that the other party notify the indemnifying party promptly of any
claim as to which indemnification will be sought and provide reasonable
co-operation in the defense and settlement thereof.
SECTION 7
LIMITATION OF LIABILITY
7.1 LIMITATION ON LIABILITY. Except as provided in this Agreement with
respect to third party indemnification, neither party will be liable to the
other party for any incidental, consequential, special, or punitive damages of
any kind or nature, including, without limitation, the breach of this Agreement
or any termination of this Agreement, whether such liability is asserted on the
basis of contract, tort (including negligence or strict liability), or
otherwise, even if either party has warned or been warned of the possibility of
any such loss or damage. In any event, each party's aggregate liability for all
costs, losses and damages of the other party will be limited, in the aggregate,
to the lesser of (i) actual provable damages suffered; or (ii) $500 US.
SECTION 8
TERMINATION
8.1 TERM. The term of this Agreement will commence on the Effective Date
and continue until four months from the Effective Date.
8.2 RENEWAL. The Agreement may be renewed by agreement of both parties.
8.3 ACTIONS UPON TERMINATION/EXPIRATION. In the event of termination or
expiration of this Agreement, without prejudice to any other rights which the
parties may have:
(a) all licenses granted hereunder terminate;
(b) all Materials in the possession of a party provided by the other party
will either be (i) returned or (ii) destroyed within seven days of the date of
termination.
8.4 SURVIVAL. In the event of any termination of this Agreement, all
provisions which by their nature extend beyond termination or expiration
including provisions relating to warranties, confidentiality, indemnity,
limitation of liability, proprietary rights and payment obligations will survive
and continue in effect and will enure to the benefit of and be binding upon the
parties, their successors and permitted assigns. The termination of any
provision of this Agreement will not excuse any prior breach of this Agreement.
SECTION 9
GOVERNING LAW
9.1 GOVERNING LAW. The validity, construction, and performance of this
Agreement will be governed by the laws of British Columbia, excluding its
conflict of laws rules.
SECTION 10
MISCELLANEOUS PROVISIONS
10.1 ENTIRE AGREEMENT. This Agreement contains the entire understanding and
agreement of the parties with respect to the subject matter contained herein,
supersedes all prior oral or written understandings and agreements relating
thereto except as expressly otherwise provided, and may not be altered, modified
or waived in whole or in part, except in writing, signed by duly authorized
representatives of the parties.
10.2 FORCE MAJEURE. If the performance of any part of this Agreement by
either party is prevented, hindered, delayed or otherwise made impracticable by
reason of any flood, riot, fire, judicial or governmental action, labour
disputes, act of God, communication lines failures or any other causes beyond
the reasonable control of either party, that party will be excused from such to
the extent that it is prevented, hindered or delayed by such causes.
10.3 COUNTERPARTS. This Agreement may be executed in several counterparts,
each of which will be deemed to be an original and all of which will together
constitute one and the same instrument.
10.4 SEVERABILITY. If any provision of this Agreement is held by a court of
competent jurisdiction to be contrary to any law, the remaining provisions will
remain in full force and effect as if said provision never existed.
10.5 WAIVER AND AMENDMENTS. No waiver, amendment, or modification of any
provision of this Agreement will be effective unless consented to by both
parties in writing. No failure or delay by either party in exercising any
rights, power, or remedy under this Agreement will operate as a waiver of any
such right, power, or remedy.
10.6 AGENCY. The parties are separate and independent legal entities.
Nothing contained in this Agreement will be deemed to constitute either
fetchOmatic or Popnuvo an agent, representative, partner, joint venturer or
employee of the other party for any purpose. Neither party has the authority to
bind the other or to incur any liability on behalf of the other, nor to direct
the employees of the other. No employment relationship is created by this
Agreement.
IN WITNESS WHEREOF, this Agreement is executed as of the Effective Date set
forth above.
FETCHOMATIC GLOBAL INTERNET INC.
Per: /s/ Jeffrey Dale Welsh
Authorized Signatory
Jeffrey Dale Welsh, President and CEO
Name/Title
POPNUVO.COM INC.
Per: /s/ signed
Jarrod Leviton, COO
Authorized Signatory
Name/Title