EX-10.67 12 0012.txt NETTAXI.COM CONTRACT -- WITH INTERNET FUEL.COM, INC. --------------------- EXIT TRAFFIC AGREEMENT CONTRACT DATED: 1/1/2000 NETTAXI AGREES TO: ------------------- - Send Exit Traffic: We will send Exit Traffic from our site to the sites ------------------- represented by Internet Fuel. These include but are not limited to: Advertising.com Inc., L90 Inc., BigMailBox.com Inc., GoHip.com, Inc., - Assign one of ouremployees as a Coordinator (primary contact for Internet -------------- ----------------------------- Fuel). - Keep confidentiality at all times. --------------------- - Indemnify and hold harmless: Internet Fuel, its subsidiaries, etc. etc. ------------------------------ from any action brought about by Nettaxi negligence or breach INTERNET FUEL AGREES TO: -------------------------- - Pay to Nettaxi - (for each console of Exit Traffic launched to the client --------------- sites) $.005 per console redirect. - Coordinate the reporting of all statistical info relating to Exit Traffic, ------------------------------------------------------------------------- and make available on-line and as a Summary report with each billing invoice. - Keep confidentiality at all times. --------------------- TERM OF CONTRACT: One Year, (1/1/2000 thru 1/1/2001) ---------------- TERMINATION ----------- No termination during the first 30 days of contract, except for cause. After the first month, either party may terminate the agreement with 30 days written notice. FEES DUE TO NETTAXI ---------------------- For each console of Exit Traffic launched to the client sites: $.005 per console redirect. OTHER TERMS AND CONDITIONS ----------------------------- - Relationship between parties is that of Buyer and Seller (not partnership or joint venture). - Cumulative remedies - no waiver (see contract for actual language). - Binding nature of contract upon successors and assigns. - Contract will be enforced in Los Angeles courts only. - Waiver of Jury Trial. - no jury trial is allowable by this contract. - Prevailing party will be entitled to reasonable legal fees and costs in addition to any other court-ordered relief. EXIT TRAFFIC AGREEMENT THIS AGREEMENT (this "Agreement") is made on January 1st, 2000; and is between Nettaxi, a Nevada corporation having its offices located at 1696 Dell Avenue, Campbell, California 95008 ("Nettaxi"), and Internet Fuel.com, Inc., a California corporation having its offices located at 9800 D Topanga Canyon Boulevard, #318, Chatsworth, CA 91311 ("the Company"). RECITALS: -------- A. The Company represents a number of Web Site and Web companies that generate banner advertisements, e-mails and exit traffic. B. Nettaxi owns, operates and represents a Web site, which is a community portal (the "Site(s"). C. This Agreement shall also set forth the respective duties, obligations and responsibilities of the parties hereto. NOW, THEREFORE, in consideration of the mutual promises contained herein, and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows: 1. TERM. Nettaxi hereby agrees to send from its Site, Exit Traffic, as ---- such term is defined below, to sites represented by the Company. These sites shall include but not be limited to sites operated by Advertising.com, Inc., L90, Inc., BigMailBox.com, Inc., GoHip.com, Inc.(the "Client Sites"). The term of this Agreement shall commence on the date hereof for a period of One (1) year. 2. DEFINITIONS. For purposes of this Agreement, the following terms ----------- shall have the meanings set forth in this Section 2: A. "Exit Traffic" is defined as the number of visitors redirected by Nettaxi, which were generated by means of the JavaScript Unload Event. These events are generated when a visitor clicks the back button; reload button or any of the browser exit buttons. The ad server's redirects the visitor to the Client Site of the Company. B. 'CPM" means Cost per Thousand consoles launched. C. 'Launched" means the number of console loads counted by the Company's servers, whose reporting is available on-line for Nettaxi to review. D. 'Visitor" shall mean any person or entity that accesses the Client Sites represented by the Company. 3. OBLIGATIONS OF THE COMPANY. During the term of this ------------------------------ Agreement: 1. The Company agrees pay for consoles of Exit Traffic launched to the Client Sites One Half Cents ($.005) per console redirect. 4. OBLIGATIONS OF NETTAXI. Nettaxi shall use its best efforts to assist ----------------------- the Company to send the agreed upon Exit Traffic to the Client Sites as well as fulfilling on any other of Nettaxi obligations under this Agreement. A. Nettaxi shall assign one of its employees as a primary contact person (the "Nettaxi Coordinator") to assist in the performance of its obligations hereunder. If such Nettaxi Coordinator ceases to be an employee of Nettaxi for any reason, Nettaxi will promptly appoint a new employee to serve as Nettaxi Coordinator. B. Nettaxi represents and warrants to the Company that Nettaxi (i) owns and has the unrestricted right to communicate and publish the Site and conducting business on the World Wide Web at its internet address and in connection therewith to use all service marks and trade names and in so doing is not acting in conflict with any patent, trademark, service mark, trade name, copyright, trade secret, license or other proprietary right with respect thereto, and (ii) Nettaxi has not received any communication from any third party that the Site or the conduct of Nettaxi's business is in violation of any law, rule or regulation or in conflict with any patent, trademark, service mark, trade name, copyright, trade secret, license or other proprietary right with respect thereto. Further Nettaxi shall be solely responsible for obtaining all necessary rights, licenses, consents, waivers and permissions from the rights holders and others to allow the Company to store and deliver any material provided by Nettaxi to be used on the Exit Traffic. 5. STATS MANAGEMENT. The Company shall coordinate the reporting of all ----------------- statistical information relating to Exit Traffic. These Stats will be available on-line and as a summary report with each billing invoice. 6. CONFIDENTIALITY. Each of Nettaxi and the Company agree to keep --------------- confidential and each SHall not, without the prior written consent of the other, disclose in any manner whatsoever, in whole or in part any of the terms of this agreement or any information, whether written or oral, furnished by the other party, including all analyses, compilations, forecasts plans, drawings, specifications, design, software, studies or other documents that contain or otherwise reflect such information or that are intended to remain confidential, except as necessary for either party to enforce its rights under this Agreement, or pursuant to a subpoena or any legal process, or as otherwise may be required by applicable law. 7. TERMINATION. Nettaxi understands and recognizes that the Company ----------- invests a significant amount of time and effort in performing its duties hereunder. Nettaxi acknowledges that the Company requires a significant amount of time to prepare for any termination of this Agreement. Accordingly, neither party may terminate this Agreement, during the first month of this Agreement except for cause. The terminating party shall deliver written notice to the other party of its intention to so terminate this Agreement (the "Notice"). The actual date of termination of this Agreement set forth in the Notice shall be a date at least thirty (30) days after the delivery of the Notice to the other party, and such terminating party shall not incur any penalty, cost or charge whatsoever (except as expressly set forth below). For purposes of this Agreement, "cause" shall mean a negligent act or omission or willful misconduct of the non-terminating party, or any of its partners, directors, officers, employees or agents; any material breach or default by the non-terminating party in the performance of any of its obligations under this Agreement; or any material breach of any representation, warranty, covenant or agreement by the non-terminating party. In the event of termination of this Agreement, Nettaxi will allow the Company to fulfill on any advances or billings invoiced up to the date of termination. Furthermore, Nettaxi shall pay the Company all amounts due under this Agreement for Exit Traffic made prior to the actual date of termination set forth in the Notice. 8. WARRANTY DISCLAIMER; LIMITATION OF LIABILITY. IN NO EVENT SHALL THE --------------------------------------------- COMPANY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. IN NO EVENT WILL THE COMPANY'S LIABILITY HEREUNDER EXCEED THE TOTAL REVENUES PAID TO NETTAXI IN ONE MONTH. Should the Company be obstructed, accelerated, incur loss of efficiency in productivity or be delayed in the commencement, prosecution, or completion of the services, without fault on its part, by the act, failure to act, direction, order, neglect, delay, or default of Nettaxi, Nettaxi's agents or employees or any other entity or person employed at Nettaxi's premises, or by changes in the services or by reason of fire, lightning, earthquake, enemy action, act of God, or similar catastrophe, or by government restrictions in respect of materials or labor, or by a strike or lockout beyond the Company's reasonable control, then the Company shall be entitled to an extension of time for a period equivalent to the actual time lost by reason of any or all of the causes aforesaid. Nettaxi expressly agrees not to make, and hereby waives, any claim for damages, including those resulting from increased supervision, labor or material costs, on account of any delay, obstruction, or hindrance for any cause whatsoever, including, but not limited to, the aforesaid causes, and Nettaxi expressly agrees that its sole right and remedy therefore shall be an extension of time. 9. INDEMNIFICATION. Nettaxi shall indemnify, defend and hold harmless --------------- the Company, the Company's subsidiaries and affiliates, and the respective partners, agents, officers, directors and employees of each of the foregoing, from and against any loss, cost, expense, claim, injury or damage (including, without limitation, reasonable attorneys' fees and expenses), whether incurred due to third party claims or otherwise, arising or resulting from or caused by (i) any negligent act or omission or willful misconduct of Nettaxi or any consultant or engineer retained by Nettaxi, or any of its or their partners, directors, officers, employees, or agents; (ii) any breach or default by Nettaxi in the performance of any of its obligations under this Agreement; (iii) any breach of any representation, warranty, covenant or agreement by Nettaxi. 10. EXPENSES. Each party shall be solely responsible for all of its -------- expenses incurred in connection with the performance of its duties hereunder, including telephone, fax, travel and client entertainment. 11. PRESS RELEASES. Nettaxi and its affiliates will consult with the --------------- Company hereto and obtain its prior written consent before issuing any press or other release or otherwise making any other public statement with respect to the transactions contemplated hereby. 12. ASSIGNMENT. Nettaxi may not assign this Agreement, or any of its ---------- rights and obligations hereunder, without the prior written consent of the Company, and any such attempted assignment shall be void. As it relates to Nettaxi, the terms "assign" and "assignment" shall, for purposes of this Agreement, be deemed to include (I) the transfer of a majority of the capital stock or other beneficial interests of Nettaxi or any assignee of Nettaxi, whether through a single transaction or in a series of related or unrelated transactions, and (ii) any transaction under which Nettaxi merges with or into or is consolidated or otherwise combines with another entity, whether Nettaxi or another entity is the surviving entity. 13. NOTICES. Any notices or other communications required or permitted ------- to be given or delivered under this Agreement shall be in writing (unless otherwise specifically provided herein) an shall be sufficiently given if delivered personally with a signed receipt therefore, or by reputable overnight deliver service, or mailed by prepaid certified mail, return receipt requested, or telefaxed with written confirmation, to the address of the parties set forth on the front page of this Agreement. Notices shall be deemed to have been given on the date delivered, if delivered, or on the second business day after mailing, if mailed. Either party, upon notice to the other party given in accordance with this Section 13 may modify its address for notices set forth in this Section 13. 14. CUMULATIVE REMEDIES; NO WAIVER. The remedies of the Company --------------------------------- provided for in this Agreement are cumulative and shall be in addition, to, and not in limitation of, the rights and remedies which may be available to the Company at law or in equity. Notwithstanding any course of dealing or the failure of either party strictly to enforce any term, right or condition of this Agreement, no term, right or condition hereof shall be deemed waived and no breach excused, unless such waiver and consent shall be in writing and signed by the party claimed to have waived or consented. No consent by any party to, or waiver of, a breach by the other party shall constitute consent to, waiver of, or excuse for any other different or subsequent breach. 15. SUCCESSORS AND ASSIGNS. Subject to Section 12, this Agreement shall ---------------------- be binding upon, and shall inter to the benefit of, the parties hereto and there respective legal representatives, and permitted successors and assigns. 16. FORCEMAJEURE. Neither party shall be deemed in default of this ------------ Agreement to the extent that performance of their obligations or attempts to cure any breach were delayed or prevented by reason of any acts of nature, fire, natural disaster, accident, acts of government, labor strikes, "down time" or any other cause beyond the control of such party, including the sudden and complete inability to process credit card or other means of processing commercial transactions on the Internet, provided that such party gives the other written notice thereof promptly (within ten days of discovery). In such an event the parties shall mutually decide whether to terminate this Agreement or effect a cure. 17. ENTIRE AGREEMENT. This Agreement, together with the exhibits ----------------- attached hereto, represents the entire and integrated agreement between the Company and Nettaxi and supersedes all prior negotiations, representations or agreements, either written or oral. Only a written instrument signed by both the Company and Nettaxi may amend this Agreement. 18. APPLICABLE LAW; VENUE. This Agreement shall be governed by and ----------------------- construed in accordance with the laws of the State of California, without regard to choice of law principles. Each party hereby submits to the exclusive jurisdiction of the United States District Court for the Central District of California and of any California state court sitting in the City of Los Angeles, California, for purposes of all legal proceedings arising out of or relating to this Agreement and the subject matter hereof. Each party irrevocably waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of the venue of any such proceeding brought in any such court and any claim that any such proceeding brought in such a court has been brought in an inconvenient forum. 19. LEGAL FEES. If any action at law or in equity is necessary to ----------- enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees, costs and expenses, in addition to any other relief to which such party may be entitled. 20. SEVERABILITY. If any provision of this Agreement or the application ------------ thereof to any person or situation to any extent shall be held invalid or unenforceable, the remainder of this Agreement, and the application of such provision to persons or situations other than those to which it shall have been held invalid or unenforceable, shall not be affected thereby, but shall continue to be valid and enforceable to the fullest extent permitted by law. 21. WAIVER OF JURY TRIAL. EACH PARIY HERETO WAIVES ITS RIGHTS TO A JURY --------------------- TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR THE SUBJECT MATTER HEREOF. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING WITHOUT LIMITATION CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. THIS SECTION 20 HAS BEEN DISCUSSED BY EACH OF THE PARTIES HERETO AND THESE PROVISIONS SHALL NOT BE SUBJECT TO ANY EXCEPTIONS. EACH PARTY HERETO HEREBY FURTHER REPRESENTS AND WARRANTS THAT SUCH PARTY HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT SUCH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER SMALL APPLY TO ANY SUBSEQUENT AMENDMENTS, SUPPLEMENTS OR MODIFICATIONS TO (OR ASSIGNMENTS OF) THIS AGREEMENT. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL (WITHOUT A JURY) BY THE COURT. 22. AUTHORIZATION. -------------- A. Each party acknowledges and confirms that it and it's representatives have the right and authority to enter into this Agreement. B. The relationship shall be that of buyer and seller. Nothing in this Agreement shall be deemed to create or construed as creating a joint venture or partnership between the parties. Neither party is, by virtue of this Agreement or otherwise, to be considered the agent or representative or the other party. Neither party shall have the right to bind the other contractually in any respect whatsoever. IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed as of the date first written above. INTERNET FUEL.COM, INC NETTAXI.COM By: /S/ Rusty Jenkins By: /S/ Dave Schlenz ----------------------------- ------------------------------- Name: Rusty Jenkins Name: Dave Schlenz Title: Advertising Manager Title: Dir. Sls. Development Telefax No.: 877-632-8636 Telefax No. 408-879-9880