ADVERTISING EXCHANGE AGREEMENT
This Agreement is entered into the 21st day of December, 2000 (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:
BIDBAY.COM INC., a corporation, with its principal offices at 7209 Foothill
Boulevard, Tujunga, CA 91042
("BidBay")
WHEREAS:
A. BidBay 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 BIDBAY WEBSITE means the website located at the URL www2.bidbay.com
operated by BidBay.
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 DISTRICTS means the eleven web pages at the fetchOmatic Website
accessible from the main page of the fetchOmatic Website and labelled as one of
"Arts/Entertainment"; "Automotive"; "Business"; "Ecology"; "Industry"; "Health";
"Shopping"; "Sports"; "Town Hall"; "Travel"; or "University".
1.6 GEOGRAPHICAL DISTRICTS means the web pages at the BidBay Website devoted
to shops located in specific geographic regions in the United States.
1.7 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 Adobe
Illustrator or Photo Shop format and the associated HTML code, fetchOmatic will
provide a Building branded with such trademark.
2.2 DISTRICT ADVERTISEMENT. On receipt of a 468 x 60 banner advertisement
and HTML code therefor (the "BidBay Banner") from BidBay, fetchOmatic will place
the BidBay Banner in rotation for display on each of the Districts. Such
advertisements will appear on the lower portion of the web pages comprising the
Districts.
2.3 FETCHOMATIC ADVERTISEMENTS. fetchOmatic will provide BidBay (i) a 120 x
60 advertisement and HTML code therefor (the "Button"); and (ii) a 230 x 33
banner advertisement and HTML code therefor (the "fetchOmatic Banner").
SECTION 3
BIDBAY'S OBLIGATIONS
3.1 BUTTON PLACEMENT. On receipt of the Button from fetchOmatic, BidBay
will place the Button on each and every web page at the BidBay Website.
3.2 FETCHOMATIC BANNER PLACEMENT. On receipt of the fetchOmatic Banner,
BidBay will place the fetchOmatic Banner on each of the Geographic Districts.
3.3 BIDBAY ADVERTISEMENTS. BidBay will provide (i) the BidBay Banner; and
(ii) a trade-mark image and associated HTML code therefor, to fetchOmatic.
SECTION 4
BIDBAY NEWSLETTER
4.1 PARTNERSHIP ANNOUNCEMENT. fetchOmatic will prepare an announcement of
the partnership between fetchOmatic and BidBay (the "Announcement"). On receipt
of the Announcement, BidBay will place the Announcement in the BidBay newsletter
for distribution to BidBay's registrants.
SECTION 5
LICENSE
5.1 FETCHOMATIC LICENSE. BidBay 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, and the BidBay Banner provided to
fetchOmatic, for the purposes of placing such on the fetchOmatic Website.
5.2 BIDBAY LICENSE. fetchOmatic grants to BidBay, for the term of this
Agreement a limited, nonexclusive, royalty free license to copy and reproduce
the fetchOmatic Banner and the Button for the purposes of placing such on the
BidBay Website and to the Announcement for the purposes of placing the
Announcement in the BidBay newsletter.
5.3 ALL RIGHTS RESERVED. Each party reserves all rights in its copyrighted
works not expressly granted in this Agreement.
SECTION 6
CONFIDENTIALITY
6.1 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.
6.2 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.
6.3 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.
6.4 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 7
WARRANTIES, COVENANTS AND INDEMNIFICATION
7.1 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 provided for herein;
(b) to the best of its knowledge, the materials it provides to the other
party, including all written materials and advertisements, including, as
applicable, the Button, the Announcement, the BidBay Banner, the fetchOmatic
Banner (collectively the "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.
7.2 NO WARRANTIES. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN SECTION
7.1, 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
BidBay Website, as appropriate) will be uninterrupted, timely, secure or
error-free.
7.3 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.
7.4 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 8
LIMITATION OF LIABILITY
8.1 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 9
TERMINATION
9.1 TERM. The term of this Agreement will commence on the Effective Date
and continue until March 31, 2001.
9.2 RENEWAL. The Agreement may be renewed by agreement of both parties.
9.3 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.
9.4 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 10
GOVERNING LAW
10.1 GOVERNING LAW. The validity, construction, and performance of this
Agreement will be governed by the laws of British Columbia, excluding it
conflict of laws rules.
SECTION 11
MISCELLANEOUS PROVISIONS
11.1 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.
11.2 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.
11.3 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.
11.4 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.
11.5 AGENCY. The parties are separate and independent legal entities.
Nothing contained in this Agreement will be deemed to constitute either
fetchOmatic or BidBay 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
Jeffrey Dale Welsh
Authorized Signatory
President and CEO
Name/Title
BIDBAY.COM INC.
Per: /s/ signed
George Tannous
Authorized Signatory
Name/Title