LEAD MARKETING AGREEMENT
THIS LEAD MARKETING AGREEMENT is made and entered into as of this __---
day of June, 2004 (the "Effective Date") by and between NeWave, Inc., a Nevada
corporation and its designated affiliates and subsidiaries, ("Company"), and
Vandalay Venture Group, Inc. (D.B.A. E-Commerce Exchange, Applied Merchant,
Chicago, ("Marketer").
RECITALS
WHEREAS, Company is in the business of, among other things, lead brokerage.
WHEREAS, Company desires to enter into an agreement with Marketer to
broker certain leads pursuant to the terms and conditions of this Agreement.
SECTION 1
DEFINITIONS
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1.1 "Applicable Law" means applicable federal, state and local
statutes, regulations, regulatory guidelines and enforceable interpretations
thereof by duly authorized judicial administrative and/or regulatory officials.
1.2 "Lead" means names and contact information of customers of Company.
1.6 "Program" shall mean any membership, affiliation, club or similar
program or benefit scheme pursuant to which a Lead is charged periodic or
recurring fees and that is regularly offered and developed by Marketer.
1.7 "Term" shall mean the period of time commencing on the Effective
Date and ending on the expiration or termination of the Initial Term or any
Renewal Term.
SECTION 2
NON-EXLUSIVITY
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2.1 Non-Exclusive Agreement. Company hereby grants a non-exclusive
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license to Marketer to use the names brokered by Company in United States and
Internationally pursuant to the terms and conditions of this Agreement.
SECTION 3
TERM
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3.1 Initial Term. This Agreement shall remain in full force and effect
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for a term commencing on the effective date and ending sixty (60) days from such
date, as a trial period.
3.2 Renewal Term. Upon expiration of the Initial Term or any Renewal Term,
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as the case may be, this Agreement shall continue for additional, consecutive,
successive periods of one (1) year unless terminated in accordance with the
provisions of Section 11.
SECTION 4
BROKERED LEADS AND PROGRAMS
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4.1 Approved Programs. Marketer hereby agrees that it shall only use
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leads brokered or provided by Company on programs, projects, campaign, or deals
approved by Company as set forth in Schedule A attached hereto.
4.2 Number of Leads. Company shall provide Marketer a number of
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brokered leads determine its sole discretion on a weekly basis. Said broker
leads shall be provided and delivered to Marketer every Monday commencing on the
effective date of this Agreement.
SECTION 5
MARKETING OF PROGRAMS
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5.1 In connection with the marketing and fulfillment of Programs,
Marketer shall provide the services described below.
5.1.1 Marketer shall be responsible for complying with the terms and
conditions of the Programs, as the same are distributed to Leads brokered by
Company. Marketer shall institute or maintain a fulfillment program. Such
fulfillment will comply with all relevant laws, rules and regulations including,
but not limited to, the Mail Order Rule.
5.2 In administering fulfillment, cancellations and program customer
service, Marketer, at its sole expense, shall:
5.2.1 Make reasonable commercial efforts to notify Company of changes
in applicable law and/or regulations that Marketer believes will adversely
affect the delivery of the program services. . Company acknowledges that all
merchants are to be approved by Marketer in its sole discretion and merchants
will be able to utilize the Program Services effective only upon such approval.
Therefore, Company will not make any promise to or create any impression with a
prospective merchant that it will be approved prior to Marketer's review and
approval.
5.3 Marketer shall submit to Company on a weekly basis, in electronic
format, record information relating to customer purchasing of Marketer's
Programs.
5.4 Unless otherwise specifically provided in this Agreement or
separately agreed to in writing, each Party shall be solely responsible for
bearing its own costs and expenses incurred in performing its responsibilities
under this Agreement, including all tariffs, filings, licensing and/or other
fees.
SECTION 6
USE OF NAME/TRADEMARKS /INTELLECTUAL PROPERTY
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6.1 Intellectual Property. Except as expressly set forth herein, this
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Agreement shall not convey a license to Marketer or Company to use the other
party's trademarks, service marks, trade names or logos owned or otherwise used
by Marketer or Company. Nothing herein shall give Marketer or Company any
rights, title or interest to or in any such trademarks, service marks, trade
names or logos owned or otherwise used by the other Party, other than the right
to display such trademarks, service marks, trade names or logos in connection
with the marketing and fulfillment of the Services. All proposed usages of a
Party's trademarks, service marks, trade names or logos shall be subject to the
prior written approval of that Party in advance of their use, and the parties
shall cease all such usage immediately upon termination of this Agreement.
6.2 Use of Company Name. Marketer SHALL NOT use Company's name for any
reason, including the sale, promotion or affiliation of its Program to that of
Company's except that Marketer shall be allowed to state has a program that is
"COMPLIMENTRY TO THAT OF COMPANY'S."
SECTION 7
COST AND EXPENSES
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7.1 Costs and Expenses. Marketer shall be responsible for all costs
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associated with the development, creation, maintenance, updating, servicing and
administration of the products and services comprising the Programs including
but not limited to marketing expenses relating to the marketing of the Programs.
SECTION 8
COMPENSATION, PAYMENTS, LATE FEES AND ACCOUNTINGS
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8.1 Compensation. Marketer shall pay Company according to the pay
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structure as stated in Schedule B attached hereto.
8.2 Payment. Marketer shall promptly pay Company the compensation as set
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forth in section 8.1 above as stated in Schedule C attached hereto. If Friday
is a bank holiday then payment shall be promptly paid on the very next non-bank
holiday day.
8.3 Late Fees. If Marketer fails to make a payment pursuant to this
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Agreement, Marketer shall pay a 5% late fee for everyday that the payment is
late.
8.3 Accounting. It shall be the responsibility of the Marketer to provide
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accurate accounting of the gross sales it makes to customers from leads brokered
by Company and Marketer shall submit to Company on a monthly basis, in
electronic format, record information relating to customer purchasing of
Marketer's Programs from leads brokered by Company.
SECTION 9
CONFIDENTIALITY
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9.1 Any information furnished by one party to the other in connection
with this Agreement will be kept in confidence by such other party, including
its affiliates, in accordance with its policies for maintaining the confidence
of its own information of similar content. Such policies shall include, at a
minimum, generally accepted industry standards requiring each party to maintain
the safety and security of Confidential Information. The term "Confidential
Information" shall mean and include (i) this Agreement; (ii) all trade secrets
and other confidential business information learned in the course of performance
by either party of its obligations under this Agreement; (iii) any information
or data which is disclosed by a party to the other party under or in
contemplation of this Agreement, including but not limited to either party's
customer information. "Confidential Information" may be either the property of
the disclosing party or information provided to the disclosing party by a third
party.
9.2 Each party provides Confidential Information to the other party for the
sole purpose of performing the Services as described herein.
9.3 Following receipt of any item of Confidential Information, both parties
shall:
(i) Keep confidential and restrict disclosure of the Confidential
Information solely to legal counsel or other representatives (collectively the
"Representatives") with a need to know and not disclose the Confidential
Information to third parties,
(ii) Use and require Representatives to use, at least the same degree of
care to protect the Confidential Information as is used with its own
confidential information, in no event shall the degree of care be less than
holding the Confidential Information in confidence.
(iii) Use the Confidential Information only for the purposes stated in
section 9.2 above,
(iv) Secure prior written approval from the disclosing party before
disclosing any of the Confidential Information to any third person or party of
any kind that is not directly involved in the discussions, except those outside
counsel or other representatives covered under paragraph 9.3 (i) above, and ;
(v) Notify the other party immediately in the event of loss or unauthorized
disclosure of any item containing Confidential Information.
9.4 The Parties shall take appropriate security measures to
protect customer nonpublic personal information ("NPI"), as defined in the
Gramm-Leach-Bliley Act of 1999, Title V, and its implementing regulations,
against accidental or unlawful destruction and unauthorized access, tampering,
and copying during storage in either Party's computing or paper environment.
Access to NPI must be restricted to only the personnel that have a business
need. NPI must be stored in an encrypted format within all systems at both
parties' location and any other locations where the data may reside.
Transmission of such NPI between Parties must be done in a secured method. NPI
must be encrypted during transmission by a method mutually agreed upon by both
parties. Both Parties agree that each will engage appropriate and
industry-standard measures necessary to meet information security guidelines as
required by the Gramm-Leach-Bliley Act, Title V and its implementing regulations
as applicable to such party.
9.5 Notwithstanding anything to the contrary, neither party will have
any obligation to preserve the confidentiality of any Confidential Information
which:
(i) Was previously known to the receiving party free of any obligation to
keep it confidential; or
(ii) Is or becomes publicly available, by other than unauthorized
disclosure; or
(iii) Is disclosed to third parties by the disclosing party without
restriction; or
(iv) Is received by either party from a third party who is rightfully in
possession of such Confidential Information and has the proper authority to
disclose it.
9.6 Upon request of disclosing party, receiving party will return all
Confidential Information received in written and/or tangible form, including
copies, reproductions or materials otherwise containing confidential
Information.
9.7 Nothing contained in this Agreement will be construed as granting
or conferring any rights by license or otherwise in any Confidential Information
disclosed under this Agreement.
9.8 Each party acknowledges that the other party owns its Confidential
Information, and that use of the Confidential Information other than as
permitted under this Agreement, may cause the other party irreparable harm for
which there may be no adequate remedy at law and would entitle the other party
to injunctive relief as well as any other remedies available, including monetary
damages.
9.9 It is expressly agreed that the requirements of this Section
survive termination.
SECTION 10
INDEMNIFICATION
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10.1 Marketer will assume, pay, indemnify, hold harmless and reimburse
Company, its officers, directors, shareholders, employees, agents, successors,
and assignees, for any and all liabilities, damages, claims, suits, judgments,
costs, and expenses (including reasonable attorney's fees and court costs)
directly or indirectly incurred by Company as a result of Marketer's negligence,
intentional or unintentional act, violation of any Applicable Law, employee
fraud, error or omission, breach of this Agreement, or patent or trademark
infringement, or arising out of any act of Marketer beyond the scope of the
authority reposed in Marketer by this Agreement.
10.1.1 In connection with the foregoing, within twenty (20) days after
Company receives notice of any claim or the commencement of any action to which
this indemnification applies, Company will notify Marketer of such claim or
action. If any such claim or action is brought against Company, Marketer may at
its option, defend said claim or action (or cause same to be defended) at its
own expense, and in such event, will pay and discharge any and all liabilities,
damages, judgments, costs, and expenses (including reasonable attorney's fees
and court costs) arising out of said defense; provided however, that neither
Marketer nor Company shall compromise or settle any such claim or action to
which this indemnification applies without the prior written consent of the
other party.
10.2 Company will assume, pay, indemnify, hold harmless and reimburse
Marketer, its officers, directors, shareholders, employees, agents, successors,
and assignees, for any and all liabilities, damages, claims, suits, judgments,
costs, and expenses (including reasonable attorney's fees and court costs)
directly or indirectly incurred by Marketer as a result of Company's negligence,
intentional or unintentional act, violation of any Applicable Law, employee
fraud, error or omission, breach of this Agreement, or patent or trademark
infringement, or arising out of any act of Company beyond the scope of the
authority reposed in Company by this Agreement.
10.2.1 In connection with the foregoing, within twenty (20) days after
Marketer receives notice of any claim or the commencement of any action to which
this indemnification applies, Marketer will notify Company of such claim or
action. If any such claim or action is brought against Marketer, Company may at
its option, defend said claim or action (or cause same to be defended) at its
own expense, and in such event, will pay and discharge any and all liabilities,
damages, judgments, costs, and expenses (including reasonable attorney's fees
and court costs) arising out of said defense; provided however, that neither
Company nor Marketer shall compromise or settle any such claim or action to
which this indemnification applies without the prior written consent of the
other party.
SECTION 11
DEFAULT AND TERMINATION
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11.1 Default. If either party shall fail to observe or perform any
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material term, condition or covenant of this Agreement for a period of ten (10)
days after receipt of notice specifically stating such failure from the other,
the party so failing to observe or perform (the "Defaulting Party") shall be
deemed in default hereunder and the other party (the "Nondefaulting Party") may,
in addition to any and all other rights or remedies it may have at either law or
in equity, terminate this Agreement.
11.2 Termination. By either party hereto by written communication to the
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other party confirming its desire to terminate this Agreement within 10 days
from the date of the written communication.
11.3 Continuation of Service. Notwithstanding any termination of this
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Agreement, whether by default or expiration of the term hereof, Marketer will
continue to provide customer service for Programs in which its customers are
enrolled through the expiration of each customer's current enrollment period or
subsequent renewal periods.
11.4 Obligation of Payment. Notwithstanding any termination of this
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Agreement, whether by default or expiration of the term hereof, Marketer will
still be liable for any payments owed to Company
SECTION 12
REPRESENTATIONS AND WARRANTIES
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12.1 Representations and Warranties of Company:
Company continuously represents and warrants to Marketer as follows:
12.1.1 Company is a corporation company duly organized, validly
existing and in good standing under the laws of the State of Utah and has all
requisite corporate power and authority to carry on its business as is now being
conducted.
12.1.2 Company has the requisite corporate power and authority to
execute, deliver and perform this Agreement. The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
on the part of Company and require no further authorization or consent by
Company. This Agreement is the valid and binding obligation of Company,
enforceable in accordance with its terms, subject to the effect of bankruptcy,
insolvency, moratorium or other laws relating to the rights of creditors
generally, and to equitable principles of general application.
12.1.3 Company will perform its services in a workmanlike manner
consistent with good business practice.
12.2 Representations and Warranties of Marketer:
Marketer continuously represents and warrants to Company as follows:
12.2.1 Marketer is duly organized, validity existing and in good
standing under the laws of its state of incorporation or organization and has
all requisite corporate power and authority to carry on its business as is now
being conducted.
12.2.2 Marketer has the requisite corporate power and authority to
execute, deliver and perform this Agreement. The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
on the part of Marketer and require no further authorization or consent by
Marketer. This Agreement is the valid and binding obligation of Marketer,
enforceable in accordance with its terms, subject to the effect of bankruptcy,
insolvency, moratorium or other laws relating to the rights of creditors
generally, and to equitable principles of general application.
12.2.3 Marketer will provide all goods and services in a workmanlike manner
consistent with good business practice.
12.2.4 Marketer will comply in all material respects with all Applicable Laws,
including without limitation, the Mail Order Rule, and all local, state and
federal statutes regulating the billing of consumers' credit cards and/or the
debiting of consumers' accounts.
12.2.5 Marketer will comply or ensure that the Call Centers comply in all
material respects with all Applicable Laws, including, without limitation, the
Federal Trade Commission Act, the Telemarketing and Consumer Fraud and Abuse
Prevention Act and all state and federal statutes regulating the initiation
and/or content of telemarketing sales calls.
SECTION 13
COMPLIANCE WITH LEGAL REQUIREMENTS
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13.1 Without limitation of any other provision of this Agreement,
Marketer shall perform its obligations hereunder or ensure the Call Centers
perform their obligations (including, but not limited to, all solicitations of
Members) at all times in accordance with any Applicable Law, including, without
limitation, the Federal Telemarketing and Consumer Fraud and Abuse Protection
Act, the rules and regulations of the Federal Communications Commission and of
the Federal Trade Commission and the rules and regulations of any state
regulatory agency having jurisdiction, including but not limited to the Illinois
Restricted Call Registry Act.
SECTION 14
INDEPENDENT CONTRACTORS
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14.1 The parties hereto are independent contractors, and nothing in
this Agreement will create any partnership, joint venture, agency, franchise,
sales representative, servant or employment relationship between or among the
parties or any affiliates of the parties, and neither party to this Agreement
will have any authority whatsoever to bind the other party to any obligation.
SECTION 15
ASSIGNMENT, SUCCESSORS
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15.1 This Agreement may be assigned only upon the prior written
approval of both Parties, which approval shall not be unreasonably withheld.
Notwithstanding the preceding sentence, either Party may assign this Agreement
to any Affiliate without the consent of the other Party if the assignor remains
fully liable hereunder.
SECTION 16
LIMITATIONS OF LIABILITY
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16.1 In no event, other than liability under Sections 9 and 10, shall
either party be liable to the other for lost profits for indirect, incidental,
consequential or punitive damages.
SECTION 17
SURVIVAL
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17.1 Any provision of this Agreement that contemplates performance or
observance subsequent to, or otherwise states that it would survive termination
or expiration of this Agreement shall survive the termination or expiration of
this Agreement. This Section 19 shall survive termination or expiration of this
Agreement.
SECTION 18
GOVERNING LAW
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18.1 This Agreement shall be governed by and construed in accordance
with California law without application of conflict of law rules.
SECTION 19
SEVERABILITY
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19.1 In the event that any provision of this Agreement, or the
application thereof, is for any reason, or to any extent, found to be invalid or
unenforceable, the remainder of this Agreement will continue in full force and
effect and shall be interpreted so as best to reasonably effect the intent of
the Parties hereto.
SECTION 20
MISCELLANEOUS
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20.1 Force Majeure. Neither party hereto shall be liable to the other
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for any delay in, or failure of, performance of any covenant contained herein,
nor shall any such delay in or failure of performance constitute default
hereunder or give rise to any liability for damages, if any, to the extent that
such delay or failure is caused by "Force Majeure". The term "Force Majeure"
means fires, explosions, actions of the elements, strikes or other labor
disputes, restrictions or restraints imposed by law, rules or regulations of a
public authority, acts of military authorities, war riots, civil disturbances,
interruptions, or delays of utilities or telephone service, interruption of
transportation facilities, and any other cause which is beyond the reasonable
control of the party affected, and which by the exercise of reasonable
diligence, said party is unable to prevent. The occurrence of such "Force
Majeure" shall extend the time of performance on the part of the party affected
thereby to such extent as may be necessary to enable it to complete performance
after the cause or causes of delay or failure have been removed, except that if
performance cannot be resumed within thirty (30) days, either party may
terminate this Agreement.
20.2 Notices. All notices, requests, demands and other communications
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provided for hereunder shall be in writing and delivered to the Agent or the
Partner by mail, confirmed facsimile, personal delivery or delivery by overnight
carrier at the addresses provided by the respective parties hereto.
Notices shall be deemed given upon the earlier to occur on (i) the third
day following the deposit thereof in the U.S. Mail or (ii) receipt by the party
to whom such notice is directed when delivered by personal delivery, confirmed
facsimile or overnight courier.
20.3 Binding Effect. Subject to any provisions hereof, restricting
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assignment, this Agreement shall be binding upon and shall inure to the benefit
of Company and Marketer and their respective successors and permitted assigns.
20.4 Waivers. Neither the waiver by any party hereto of a breach of or a
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default under any of the provisions of this Agreement, nor the failure of any
party hereto, on one or more occasions, to enforce any of the provisions of this
Agreement or to exercise any right, remedy or privilege hereunder shall
thereafter be construed as a waiver of any such provisions, rights, remedies or
privileges hereunder. Any of the terms, covenants, representations, warranties
or conditions hereof may be waived only by a written instrument executed by the
party waiving compliance.
20.5 Entire Agreement. This Agreement (including the Attachments hereto)
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constitutes the entire agreement among the parties and supercedes any prior oral
understandings, agreements or representations by or among the parties with
respect to the subject matter hereof. This Agreement may only be amended by a
writing executed by the parties. Section and paragraph headings used in this
Agreement are for convenience of reference only and shall not afffect the
interpretation or construction thereof.
20.6. Pronouns. All pronouns and any variation thereof shall be deemed
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to refer to the masculine, feminine, neuter, singular or plural, as the identity
of the Person may require.
20.7. Headings. Section headings contained in this Agreement are
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inserted for convenience of reference only, shall not be deemed to be a part of
this Agreement for any purpose, and shall not in any way define or affect the
meaning, construction or scope of any of the provisions hereof.
20.8. Execution in Counterparts. To facilitate execution, this
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Agreement may be executed in as many counterparts as may be required; and it
shall not be necessary that the signatures of, or on behalf of, each party, or
that the signatures of all persons required to bind any party, appear on each
counterpart; but it shall be sufficient that the signature of, or on behalf of,
each party, or that the signatures of the persons required to bind any party,
appear on one or more of the counterparts. A facsimile signature will
constitute an original and binding signature. All counterparts shall
collectively constitute a single agreement. It shall not be necessary in making
proof of this Agreement to produce or account for more than the number of
counterparts containing the respective signatures of, or on behalf of, all of
the parties hereto.
20.9 Non-Solicitation of merchants. Without Marketer's prior written
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consent (which consent may be withheld in Marketer's sole and absolute
discretion), Company shall not knowingly cause or permit any of their employees,
agents, principals, affiliates, subsidiaries or any other person or entity (i)
to solicit or provide services that compete with the Program Services to any
merchant that has been accepted by Marketer; or (ii) to solicit or otherwise
cause any merchant that has been accepted by Marketer or its vendors to
terminate its participation in any of the services offered by Marketer or its
vendors. This section shall apply during the term of this Agreement and for one
(1) years after any termination, cancellation or expiration of this Agreement.
Company will remain responsible for resulting damages from such prohibited
solicitation.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first above written.
MARKETER
By: /s/ Vandalay Venture
NEWAVE, INC. (the "Company")
By: /s/ Mike Hill
SCHEDULE A
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PROGRAMS
Program Name
Description
Merchant Accounts Allows its customers to process credit cards
08/23/042:02 PM 11
SCHEDULE B
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Marketer will pay the Company fifty percent (50%) of the net monthly residual
amount collected from Leads marketed pursuant to this Agreement
Company may assign or sell its rights to compensation to a third party upon
Marketer's prior written consent; provided however, Marketer shall first have
the right to purchase such compensation rights from Company. In the event
Company seeks to sell its right to compensation to a third party, it shall
provide Marketer with written notice of the material terms of the third party
offer, and Marketer shall have 30 days within which to notify Company if it will
match said third party offer. If Marketer elects to match the third party
offer, Company shall sell its rights to compensation to Marketer. In the event
Marketer does not elect to exercise this right of first refusal, it shall
consent to the sale of Company's compensation to the third party offeror.
At the discretion of the Company, Marketer will at any time buy the Company's
residual fee for six times (6x) the residual stream. . Residuals will only be
paid if collected from the merchants and Marketer's vendors. Residuals will be
paid net 7 following the month of collection by Marketer from its vendors.