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EXHIBIT 10.3
Confidential treatment requested under 5 U.S.C. Section 552(b)(4) that provides
an exemption from public disclosure of confidential financial information.
* indicates omitted material that is the subject of a confidential treatment
request that is filed separately with the Commission.
WEB SITE DEVELOPMENT, SERVICE
AND
REVENUE SHARING AGREEMENT
THIS WEB SITE DEVELOPMENT, SERVICE AND REVENUE SHARING AGREEMENT (the
"Agreement"), is entered as of April 1, 1999, by and between 1st NET
TECHNOLOGIES, INC., a Colorado corporation ("1st NET"), and NO FEAR, INC., a
California corporation ("NO FEAR").
BACKGROUND RECITALS
A. 1st NET is in the business of providing electronic commerce ("e-commerce")
consultation and implementation services to businesses desiring to market
products or information over the Internet.
B. 1st NET's services range from the original conceptual planning of e-commerce
solutions for its customers through the design, development, testing, and
ongoing commercial operation of its customer's e-commerce operations using the
resources of the Internet and a custom World Wide Web site tailored to a
customer's e-commerce needs.
C. NO FEAR desires to contract with 1st NET to design, develop and install a Web
Site for NO FEAR, and to provide the following services that are required to
make the Web Site developed by 1st NET for NO FEAR operational for the duration
of this Agreement:
(1) Host and maintain the Web Site developed by 1st NET for NO FEAR;
(2) Maintain the Code and ongoing technical operation of the NO FEAR Web
Site;
(3) Update the Content and information contained on the NO FEAR Web Site
from time to time as required to reflect changing NO FEAR Web Products, prices
and terms of sales;
(4) Maintain a current inventory status on the NO FEAR Web Site to
reduce the chance of orders being placed for out of stock NO FEAR Web Products;
(5) Accept on-line electronic orders from Purchasers for NO FEAR Web
Products placed through the NO FEAR Web Site;
(6) Provide purchaser and NO FEAR Web Product order fulfillment
information to NO FEAR as it is received through the NO FEAR Web Site;
(7) Notify Purchasers when NO FEAR Web Products are shipped and process
electronic payments for merchandise purchased through the NO FEAR Web Site on
behalf of NO FEAR;
(8) Arrange for the electronic transmission of net order proceeds to NO
FEAR; and
(9) Forward comments and service requests from Purchasers and other Web
Site users to NO FEAR for action and response.
D. NO FEAR commits to support the NO FEAR Web Site and its e-commerce presence
on the Internet during the term of this Agreement by:
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(1) Making certain styles of NO FEAR's brand name products as NO FEAR
Web Products available for purchase through the Web Site;
(2) Advertising and promoting the NO FEAR Web Products offered on the NO
FEAR Web Site and the availability of the NO FEAR Web Products for direct
purchase over the Internet at the NO FEAR Web Site in NO FEAR's print,
electronic and other advertising;
(3) Providing 1st NET with such information regarding the NO FEAR Web
Products, pricing and terms of sale as 1st NET requires to maintain the Web Site
on an ongoing basis;
(4) Providing 1st NET with ongoing NO FEAR Web Product inventory
information so that NO FEAR Web Products which are not available can be removed
from the NO FEAR Web Site or the anticipated availability dates can be posted on
the NO FEAR Web Site;
(5) Filling orders for NO FEAR Web Products promptly when they are in
inventory;
(6) Providing 1st NET with ongoing status information on all pending
orders to enable 1st NET to provide the order status information to Purchasers
who have placed orders for NO FEAR Web Products through the NO FEAR Web Site;
(7) Promptly notifying 1st NET after NO FEAR Web Products are shipped by
NO FEAR, so 1st NET can notify the Purchaser and conclude the processing of
Purchaser's payment; and
(8) Providing Purchaser support services and facilities to handle
comments and service requests by Purchasers, NO FEAR Web Products returns, and
Purchaser refunds.
E. This Agreement sets forth the terms and conditions applicable to the range of
services to be provided by each party and each party's obligations to the other.
NOW THEREFORE, in consideration of the mutual covenants herein contained and for
other valuable consideration, the parties agree as follows:
1.0 DEFINITIONS.
1.1 "CGI" means a "Common Gateway Interface" that is a standard for
running external programs under a WWW HTTP server. External programs are known
as "gateways" because they provide an interface between an external source of
information and the server.
1.2 "Code" means a set of instructions (in human readable or binary form
or both) conforming to a specified protocol that will cause a specified computer
to function in the manner intended by the programmer. Code may include HTML,
CGI, Java applets, Active X, VRML, C++, as well as graphics and sound files.
1.3 "Content" means the NO FEAR Web Product descriptions, pricing,
terms, conditions and other information provided by NO FEAR.
1.4 "Deliverables" means all of the Code and other materials developed
or modified by 1st NET for the NO FEAR Web Site pursuant to this Agreement, but
does not include any third-party software or other materials unless they are
specifically identified for inclusion as part of the Deliverables.
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1.5 "1st NET Products" means the products or merchandise of 1st NET or
any affiliates of 1st NET which are approved by NO FEAR for sale using the
resources provided by the NO FEAR Web Site, as provided in Section 5.1 hereof.
1.6 "1st NET Net Sales" means the gross price at which the 1st NET
Products are sold through the NO FEAR Web Site or a NO FEAR Web Browser, less
the following items of expense to the extent to which they are paid or allowed
and included in the gross price, trade or quantity discounts, credits or refunds
for returned or rejected 1st NET Products, handling and/or delivery charges, and
sales taxes, use taxes or turnover taxes on the sales price of the 1st NET
Products.
1.7 "1st NET Subcontractor" means any third party subcontractor hired by
or otherwise working through 1st NET.
1.8 "Home Page" means the top level or initial Web Page in a collection
of linked Web Pages making up a Web Site.
1.9 "Host" or "Hosting" means to place and provide access to a Web Site
on a Web Server in such a manner that it can be viewed by third parties over the
Internet.
1.10 "Initial Period" shall mean the period commencing on the Start Date
and ending on the last day of the twelfth (12th) month after the month which
includes the Start Date.
1.11 "Internet" means the world-wide network of networks of computers,
which provides electronic mail and WWW access in addition to other specialized
communication services.
1.12 "NO FEAR Net Sales" means the gross price at which the NO FEAR Web
Products are sold through the NO FEAR Web Site, less the following items of
expense to the extent to which they are paid or allowed and included in the
gross price: trade or quantity discounts, credits or refunds for returned or
rejected NO FEAR Web Products, handling and/or delivery charges, and sales
taxes, use taxes or turnover taxes on the sales price of the NO FEAR Web
Products.
1.13 "NO FEAR Web Browser" means a Web Browser custom designed by 1st
NET to incorporate the NO FEAR trademark and various extreme sports themes.
1.14 "NO FEAR Web Product(s)" means those certain styles of NO FEAR's
products which are made available by NO FEAR for purchase and sale through the
NO FEAR Web Site.
1.15 "NO FEAR Web Site" means the Web Site designed, developed and
installed by 1st NET for NO FEAR pursuant to this Agreement and accepted by NO
FEAR.
1.16 "Purchaser(s)" means the individuals or entities placing orders for
NO FEAR Web Products through the facilities provided by the NO FEAR Web Site.
1.17 "Start Date" means the date that the NO FEAR Web Site is accessible
to Internet users and is fully operational as provided in the Section 2.4
hereof.
1.18 "3P Advertising" means the advertising of third parties which are
approved by NO FEAR for display on the NO FEAR Web Site, as provided in Section
5.1 hereof.
1.19 "URL" means a Uniform Resource Locator and is an address recognized
by the Internet at which a Web Server, Web Page or other information may be
found.
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1.20 "Web Browser" means the software designed to allow interactive
access to the WWW (and in some cases to other Internet resources as well),
including, but not limited to, Netscape Navigator and Microsoft Internet
Explorer.
1.21 "Web Page" means the Code that permits a document, image or other
data to be accessible over the Internet using a Web Browser.
1.22 "Web Server" means a computer or computers on which one or more Web
Sites are located and made accessible to Internet users.
1.23 "Web Site" means a series of interconnected Web Pages that are
seamlessly interrelated to each other and are under common control.
1.24 "WWW" means all of the URL's that are accessible to a typical
computer user with unrestricted access to the Internet and a standard Web
Browser.
2.0 DESIGN, DEVELOPMENT AND INSTALLATION OF NO FEAR WEB SITE.
2.1 Initial Meetings. Representatives of 1st NET and NO FEAR shall meet
as often as reasonably necessary for 1st NET to understand NO FEAR's business,
marketing processes and objectives with respect to the NO FEAR Web Site and
e-commerce, and to develop a realistic time table for design, development and
installation of the NO FEAR Web Site.
2.2 Agreement on Use of 1st NET Subcontractors and 1st NET
Identification on the NO FEAR Web Site. By no later than April 30, 1999, 1st NET
and NO FEAR shall agree upon (i) whether any 1st NET Subcontractors will be
retained by 1st NET to design, develop and/or operate the NO FEAR Web Site, (ii)
if 1st NET Subcontractors are to be retained by 1st NET, the specific 1st NET
Subcontractors to be retained by 1st NET, and (iii) the manner and extent to
which 1st NET will be permitted to identify itself on the NO FEAR Web Site as
the developer and host of the NO FEAR Web Site. If 1st NET and NO FEAR are
unable to agree upon whether 1st NET Subcontractors are to be retained, the
specific 1st NET Subcontractors to be retained, or the manner and extent to
which 1st NET will be permitted to identify itself on the NO FEAR Web Site, by
April 30, 1999, then either party shall have the right to immediately terminate
this Agreement by giving written notice to the other party that it elects to
terminate the Agreement pursuant to this Section 2.2.
2.3 Design and Development of the NO FEAR Web Site. Based upon 1st NET's
understanding of NO FEAR's business, marketing processes and e-commerce
objectives, 1st NET shall, at is sole expense, directly and/or through 1st NET
Subcontractors, design and develop the NO FEAR Web Site which will reasonably
implement NO FEAR's Web Site and e-commerce objectives. Representatives of 1st
NET and NO FEAR will keep in regular contact with each other during the design
and development process in order to ensure that the NO FEAR Web Site will be
consistent with NO FEAR's Web Site and e-commerce objectives.
2.4 Testing of Web Site. As soon as possible after 1st NET develops the
NO FEAR Web Site, the NO FEAR Web Site, including its constituent Web Pages and
e-commerce functionality, will be made available for testing. NO FEAR, together
with 1st NET, shall examine and test the NO FEAR Web Site, its constituent Web
Pages and e-commerce functionality. 1st NET shall assist NO FEAR with any tests
to be performed on the NO FEAR Web Site to confirm that the NO FEAR Web Site
reasonably meets NO FEAR's Web Site and e-commerce objectives.
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2.5 Installation of the NO FEAR Web Site and Transfer of Rights. Once
the NO FEAR Web Site has been accepted by NO FEAR, 1st NET shall, at is sole
expense, install the NO FEAR Web Site on the Host Web Server agreed upon by NO
FEAR, and the NO FEAR Web Site will be accessible to Internet users at the URL
agreed upon by NO FEAR. In order to avoid any misunderstanding or confusion, the
parties agree the acceptance of the NO FEAR Web Site by NO FEAR shall be in
writing, and the Start Date shall be agreed upon between NO FEAR and 1st NET in
writing. On the start Date, to the extent provided in Section 6.3 hereof, NO
FEAR will become the owner of all of 1st NET's interest in the NO FEAR Web Site
and its constituent Web Pages, including the Internet marketing plan and
e-commerce plan developed by 1st NET for NO FEAR.
2.6 Consideration. Except as provided in Section 4.1 hereof, NO FEAR
shall have no obligation to pay any compensation or other consideration to 1st
NET for its services in designing, developing, installing and hosting the NO
FEAR Web Site, or for the transfer and assignment of 1st NET's interest in the
NO FEAR Web Site to NO FEAR.
3.0 HOSTING AND NO FEAR WEB SITE MAINTENANCE SERVICES TO BE PROVIDED BY 1ST NET.
1st NET will provide the following hosting and Web Site maintenance services to
NO FEAR for the duration of this Agreement.
3.1 Hosting the NO FEAR Web Site. 1st NET will Host and maintain the NO
FEAR Web Site developed by 1st NET for NO FEAR.
3.1.1 The NO FEAR Web Site may be placed on 1st NET's own Web
Server(s), or 1st NET may arrange to have the NO FEAR Web Site co-hosted on one
or more third party Web Servers depending on the level of traffic on the NO FEAR
Web Site, the changing options available for connecting to the Internet, and
other technical considerations, subject to approval by NO FEAR.
3.1.2 The Web Server(s) will initially provide an Internet
connection for the NO FEAR Web Site with a bandwidth that is approved by NO
FEAR. The bandwidth of the Internet connection may be adjusted from time to time
as reasonably determined by 1st NET to adequately handle the level of traffic on
the NO FEAR Web Site and maintain a reasonable average server response time to
Purchasers viewing the NO FEAR Web Site over the Internet.
3.1.3 1st NET will use its reasonable best efforts to minimize
the amount of time that the NO FEAR Web Site is offline and unavailable to
potential Purchasers. However, NO FEAR understands the Web Servers will go
offline from time to time for maintenance, and that they are subject to service
disruptions by power, telecommunications and equipment providers.
3.2. Maintain Underlying Code. 1st NET will maintain the Code and
ongoing technical functionality of the NO FEAR Web Site.
3.2.1 1st NET will correct any malfunctions that develop or are
discovered in the Code underlying the NO FEAR Web Site that prevent the NO FEAR
Web Site from providing NO FEAR Web Product information to potential Purchasers,
accepting orders for NO FEAR Web Products, providing order fulfillment
information to NO FEAR, communicating order status information to Purchasers,
charging Purchaser credit cards and remitting net order proceeds to NO FEAR in a
smooth and orderly fashion.
3.2.2 1st NET will update and improve the code underlying the NO
FEAR Web Site from time to time to improve its performance and take advantage of
new technical functionality that becomes available.
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3.3 UPDATED CONTENT. 1st NET will receive new and modified information
regarding the NO FEAR Web Products, pricing changes, terms and conditions of
sale, and other information provided by NO FEAR in certain defined formats and
use that information to update the Content of the NO FEAR Web Site from time to
time.
3.3.1 NO FEAR will provide NO FEAR Web Product and other Content
information intended for the NO FEAR Web Site in Flat ASCII database format or
such other format as mutually agreed upon. Text files will be provided in
Microsoft Word rich text format or in such other format as mutually agreed upon,
and graphic images will be provided in Graphics Interchange Format ("GIF") or in
JPEG format. All such digital data shall be delivered electronically in
accordance with 1st NET's data transmission procedures in effect from time to
time.
3.3.2 1st NET may edit, reformat, crop, compress or otherwise
modify NO FEAR image data in order to reduce file sizes as necessary to speed
data transmission to Purchasers.
3.3.3 New and revised NO FEAR Content will be posted to a
password protected proof NO FEAR Web Site each time the Content is modified by
1st NET, and NO FEAR will be notified by e-mail that the proof NO FEAR Web Site
has been updated. NO FEAR will promptly review the proof NO FEAR Web Site and
verify that the Content is correct and then notify 1st NET by e-mail that the
Content on the proof NO FEAR Web Site has been approved for posting live to the
Internet.
3.3.4 Once 1st NET is notified that the proof NO FEAR Web Site
has been approved, the proof NO FEAR Web Site will be promptly brought up as the
live NO FEAR Web Site on the Internet.
3.4 INVENTORY CONTROL. 1st NET will endeavor to maintain an accurate
running inventory count on the NO FEAR Web Site.
3.4.1 1st NET will process ongoing adjustments to the inventory
of NO FEAR Web Products and back order status information as it is received from
NO FEAR for each NO FEAR Web Product offered on the NO FEAR Web Site throughout
the term of this Agreement. The data will be provided to 1st NET in such format
and on such basis as mutually agreed upon between NO FEAR and 1st NET.
3.4.2 Provided that NO FEAR supplies 1st NET with accurate
inventory information, 1st NET will endeavor to maintain an accurate running
inventory of the NO FEAR Web Products on the NO FEAR Web Site and notify
interested prospective Purchasers when a NO FEAR Web Product, size or color is
out of stock, discontinued or backordered. 1st NET will also endeavor to inform
potential Purchasers if out of inventory NO FEAR Web Products have been
reordered and if so, when they are expected to be back in inventory.
3.4.3 The parties will use their reasonable efforts to avoid
Purchaser disappointment resulting from accepting orders for the NO FEAR Web
Products which are not available or without notifying the Purchaser at the time
the order is placed, that delivery will be delayed.
3.5 ORDER ACCEPTANCE. 1st NET will accept on-line electronic orders from
Purchasers for NO FEAR Web Products placed through the NO FEAR Web Site for
delivery within the United States. 1st NET may not accept orders for delivery
outside the United States without NO FEAR's prior written consent.
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3.5.1 When a Purchaser desires to order the NO FEAR Web Products
offered on the NO FEAR Web Site, 1st NET will collect the product
identification, size, color and other required product information from the
Purchaser and verify that the desired NO FEAR Web Products are in inventory.
3.5.2 If the desired NO FEAR Web Products are in inventory, 1st
NET will request and collect the required Purchaser delivery and credit card
information, determine the total amount of the purchase price, including
shipping, handling and applicable taxes, then electronically verify that the
Purchaser's credit card account is valid and obtain the credit card company's
authorization to charge the total cost of the purchase to the Purchaser's
account.
3.5.3 Once the NO FEAR Web Product inventory and Purchaser credit
card status have been verified, 1st NET will accept the Purchaser's order on
behalf of NO FEAR.
3.6 PRODUCT ORDER AND SHIPPING INFORMATION. As orders for NO FEAR Web
Products are received and accepted through the NO FEAR Web Site, 1st NET will
electronically provide NO FEAR's warehouse and shipping facility with order
information. NO FEAR will use its reasonable efforts to ship NO FEAR Web
Products which are available within a reasonably prompt period after the order
is accepted and provide 1st NET with electronic confirmation of each NO FEAR Web
Product shipment, together with the common carrier's shipment tracking number.
3.7 CHARGING CREDIT CARDS AND NOTIFYING PURCHASERS. As 1st NET receives
notification of NO FEAR Web Product shipments from NO FEAR, 1st NET will
promptly charge each Purchaser's credit card account for the total purchase
price of the NO FEAR Web Products shipped, and will notify each Purchaser by
e-mail within one (1) business day after receiving such notification from NO
FEAR, that his or her account has been charged, and provide them with the
shipment tracking number.
3.7.1 All credit card charges will be made through or under NO
FEAR's merchant accounts. 1st NET will be acting as NO FEAR's authorized agent
in charging each Purchaser's credit card on behalf of NO FEAR. 1st NET will only
use NO FEAR's merchant accounts to charge purchases of NO FEAR Web Products made
through the NO FEAR Web Site.
3.7.2 1st NET will charge each Purchaser's credit card account
for the purchase price of the NO FEAR Web Products shipped by NO FEAR, together
with applicable taxes, shipping and handling charges, within one (1) business
day after receiving electronic notification from NO FEAR that the Purchaser's NO
FEAR Web Product order has been shipped. The purchase price of NO FEAR Web
Products which are backordered will not be charged to Purchaser's credit card
until they are actually shipped.
3.7.3 If for any reason NO FEAR makes a partial shipment of a
Purchaser's order, 1st NET will notify the Purchaser of the NO FEAR Web Products
shipped, the NO FEAR Web Products that are backordered or discontinued, and the
adjusted amount charged to the Purchaser's credit card account for the partial
shipment.
3.7.4 When 1st NET receives the confirmation of delivery
information from the carrier, 1st NET will notify the Purchaser that the carrier
has confirmed delivery.
3.7.5 1st NET will also provide the Purchaser with an electronic
means of canceling any orders that are not shipped within thirty days after the
order is placed.
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3.7.6 The parties will use their reasonable efforts to keep each
Purchaser fully informed of the status of each order and shipment.
3.8 PURCHASER COMMUNICATIONS. 1st NET will provide and maintain a
Purchaser comment and service request e-mail template on the NO FEAR Web Site,
and will promptly forward all Purchaser comments and service requests to NO FEAR
for action and response. 1st NET will route NO FEAR's responsive e-mail messages
back to the Purchaser if requested.
4.0 NO FEAR OBLIGATIONS AND COMMITMENTS. NO FEAR understands that the Internet
is a new and rapidly evolving marketing channel. The long-term success of the NO
FEAR Web Site and NO FEAR's e-commerce venture will require continuing close
cooperation between NO FEAR and 1st NET throughout the term of this Agreement.
NO FEAR will use its reasonable efforts to supports its e-commerce presence on
the Internet.
4.1 [*]
4.1.1 Commissions shall be payable on the twentieth (20th) day of
each month for NO FEAR Net Sales of NO FEAR Web Products shipped during the
preceding month, and shall be accompanied by a statement which sets forth the
gross sales of NO FEAR Web Products, an itemization of deductions therefrom in
arriving at the amount of the NO FEAR Net Sales, and the rate(s) used in
calculating the amount of the commission. If 1st NET does not receive the
commissions due on the 20th day of a month by the 30th day of such month (the
"Late Commissions"), 1st NET shall give written notice (the "LC Notice") to NO
FEAR that the Late Commissions have not been received by 1st NET. If 1st NET
does not receive the Late Commissions within thirty (30) days after the LC
Notice has been received by NO FEAR, then, in addition to any other remedies
that 1st NET may have under applicable law, 1st NET shall have the right to
cease providing the services necessary for the NO FEAR Web Site to be accessible
to Internet users.
4.1.2 In the event of a termination of this Agreement under
Sections 12.1, 12.3 or 12.4 hereof, NO FEAR shall continue to pay to 1st NET
commissions in accordance with this Section 4.1 on NO FEAR Net Sales pursuant to
orders for NO FEAR Web Site which were accepted by 1st NET and submitted to NO
FEAR prior to the effective termination date of this Agreement and which are
shipped by NO FEAR on or after the effective termination date.
4.1.3 [*]
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4.2 PRODUCT AVAILABILITY AND INFORMATION. NO FEAR shall determine which
styles of its products will be made available for purchase over the Internet
through the NO FEAR Web Site developed and maintained by 1st NET. The
determination by NO FEAR of the NO FEAR Web Products available for purchase
through the NO FEAR Web Site will be sufficiently broad to give a reasonable
prospect for NO FEAR Net Sales of at least $1,000,000, $2,000,000 and $3,000,000
during the Initial Period, the 12 month period following the Initial Period, and
second 12 month period following the Initial Period, respectively.
4.2.1 NO FEAR will provide 1st NET with marketing oriented
information, descriptions, prices and illustrations for each of the NO FEAR Web
Products as they are made available to the public. NO FEAR will also provide
additional selected text and graphic material to add visual interest to the NO
FEAR Web Site on an ongoing basis.
4.2.2 All of the text and graphic information provided by NO FEAR
will be in such format as mutually agreed upon. Initially, graphic images will
be provided only in GIF or in JPEG formats. 1st NET may designate additional or
alternative data formats from time to time as the technology utilized in the
development and maintenance of the NO FEAR Web Site evolves.
4.3 TERMS OF SALE AND WARRANTY INFORMATION. In addition to the marketing
oriented information described above, NO FEAR will provide 1st NET with its
complete terms and conditions of sale, including any warranty, exchange, return
and other customer service policies and procedures for inclusion on the NO FEAR
Web Site as required by law.
4.4 ADVERTISING THE WEB SITE. NO FEAR will use its reasonable efforts to
advertise the NO FEAR Web Site through NO FEAR's advertising channels in a
manner which will increase the exposure of the NO FEAR Web Site to potential
Internet users and which is consistent with NO FEAR's financial resources and
business needs.
4.4.1 NO FEAR will include the URL of the NO FEAR Web Site and an
invitation to visit the NO FEAR Web Site in such of its print, electronic and
other advertising as it determines.
4.4.2 The advertising of the NO FEAR Web Site will be phased in
an existing inventories of hang tags and other marketing materials are used.
4.5 MAINTAIN AND RESERVE INVENTORY. Since accepting orders for NO FEAR
Web Products which are not available is likely to cause Purchaser frustration
and ill will, and because it will impose substantial overhead costs for
Purchaser notification and follow-up, NO FEAR shall provide 1st NET with ongoing
NO FEAR Web Product inventory information.
4.5.1 NO FEAR will provide 1st NET with direct electronic access
to applicable information regarding the NO FEAR Web Products in NO FEAR's
inventory control system in order to enable 1st NET to continually update the NO
FEAR Web Product inventory information on the NO FEAR Web Site.
4.5.2 NO FEAR will provide 1st NET with information about
anticipated inventory shortages, NO FEAR Web Product phase outs, and new NO FEAR
Web Product announcements in a reasonably prompt manner so that NO FEAR Web
Products which are not available can be removed from the NO FEAR Web Site,
anticipated date of re-supply can be posted when the NO FEAR Web Products are
backordered, and new NO FEAR Web Products can be promptly added to the NO FEAR
Web Site as soon as they become available.
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4.6 PROMPT PRODUCT DELIVERY. NO FEAR will use its reasonable efforts to
fill all orders for NO FEAR Web Products submitted to NO FEAR through the NO
FEAR Web Site promptly and to ensure that the correct NO FEAR Web Products and
quantities are shipped to the designated delivery address.
4.7 SHIPPING INFORMATION. NO FEAR will promptly provide 1st NET with
electronic notice when each Purchaser order is shipped by NO FEAR, including the
date of shipment, the common carrier used, and the carrier's tracking number, so
that 1st NET can (i) conclude the Purchaser charge process, (ii) notify the
Purchaser that the NO FEAR Web Products have been shipped, and (iii) provide the
Purchaser with the carrier's tracking number.
4.8 PURCHASE SUPPORT SERVICES. NO FEAR will provide reasonable Purchaser
support services and facilities to handle complaints by Purchasers, NO FEAR Web
Product returns, Purchaser refunds, and other Purchaser service requests.
4.9 NO FEAR APPROVALS. Requests for approvals required to be obtained
from NO FEAR pursuant to this Agreement shall be sent to Xxxx Xxxxx or such
other person as may be designated by NO FEAR in writing to 1st NET.
5.0 SALE OF 1ST NET PRODUCTS AND THIRD PARTY ADVERTISING; PAYMENT OF
COMMISSIONS; ISSUANCE OF 1ST NET-NO FEAR WARRANTS.
5.1 SALE OF OTHER PRODUCTS AND SERVICES. In the event that 1st NET
desires to (i) have 1st NET Products sold through the NO FEAR Web Site or a NO
FEAR Web Browser, or (ii) have 3P Advertising placed on the NO FEAR Web Site,
1st NET shall make a detailed written proposal to NO FEAR and shall obtain NO
FEAR's prior written approval before selling the 1st NET Products through the NO
FEAR Web Site or a NO FEAR Web Browser, or permitting 3P Advertising to be
placed on the NO FEAR Web Site. 1st NET shall be fully responsible for all
aspects of selling and fulfilling the sale of 1st NET Products sold through the
NO FEAR Web Site or a NO FEAR Web Browser, and for placement of 3P Advertising
on the NO FEAR Web Site.
5.2 [This portion of the Agreement has been omitted and filed separately
with the Securities and Exchange Commission.]
5.3 GRANT OF 1ST NET-NO FEAR WARRANTS. As material consideration for NO
FEAR entering into this Agreement, concurrent with the execution of this
Agreement, 1st NET and NO FEAR
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shall enter into a Warrant Agreement, the form of which is attached hereto,
pursuant to which 1st NET shall issue warrants to NO FEAR (the "1st NET-NO FEAR
Warrants") to purchase 75,000 shares of the common stock of 1st NET at $3.50 per
share. The 1st NET-NO FEAR Warrants shall expire on the earlier of (i) March 31,
2001, or (ii) immediately following the date of the public offering on 1st NET's
common stock, provided, however, that the expiration date shall not be prior to
April 1, 2000. 1st NET agrees, without cost to NO FEAR, to have the shares of
the common stock of 1st NET which were issued to NO FEAR upon exercise of the
1st NET-NO FEAR Warrants, or which will be issued to NO FEAR upon exercise of
the 1st NET-NO FEAR Warrants, registered as part of the public offering of 1st
NET's common stock with the view that such shares of 1st NET's common stock
shall be freely tradable by NO FEAR.
6.0 OWNERSHIP OF COPYRIGHTS AND MATERIALS.
6.1 OWNERSHIP OF COPYRIGHTS. The NO FEAR Web Site and e-commerce
capability developed by 1st NET under this Agreement may contain copyrighted
materials provided by NO FEAR or licensed from one or more third parties in
addition to original materials developed by 1st NET. It may also contain NO FEAR
or third party materials that have been modified by 1st NET. As a result, the
copyrights and derivative copyrights in the Code used to develop the Web Pages
and the NO FEAR Web Site may belong to a combination of 1st NET, NO FEAR, and/or
other third parties.
6.1.1 1st NET assumes the responsibility for obtaining any third
party copyright licenses that may be required to use the materials for 1st NET
employs in the NO FEAR Web Site and its constituent Web Pages unless those
materials are specified or supplied by NO FEAR. When 1st NET obtains a license
to use copyrighted material on the NO FEAR Web Site, 1st NET will inform NO FEAR
in writing that such material is licensed from third parties and of the terms
and scope of the license. NO FEAR shall abide by the terms of any such third
party license, and shall not knowingly allow the use of the licensed materials
beyond the scope of the license obtained by 1st NET without first obtaining any
required supplemental licenses from the copyright owners.
6.1.2 NO FEAR assumes the responsibility for obtaining any
copyright authorizations that may be required to use the materials specified or
supplied by NO FEAR to 1st NET for inclusion in the NO FEAR Web Site.
6.2 1ST NET'S ORIGINAL CONTRIBUTIONS. Except as provided in Section 6.3,
the copyrights in 1st NET's original contributions to the Internet marketing and
e-commerce plan, the code, or any other copyrightable material developed by 1st
NET, excluding therefrom any materials in which NO FEAR has copyrights,
trademarks, or other intellectual property rights, shall belong to 1st NET from
the moment the materials are created, and NO FEAR shall have no right to copy,
use or display those materials except as provided in this Agreement. The
copyrights in any materials that were not developed by 1st NET shall remain with
the copyright owner of them.
6.3 TRANSFER OF RIGHTS TO NO FEAR. Except as provided in the next
sentence, on the Start Date, 1st NET hereby assigns and transfers all of its
right, title and interests in the NO FEAR Web Site to NO FEAR, including any
copyrights it owns in the Deliverables, the Internet marketing and e-commerce
plan, and the NO FEAR Web Site and its constituent Web Pages. This assignment
shall not include (i) any copyrights that belong to a third party, but will
include all of 1st NET's interest in the derivative copyrights of any
preexisting materials owned by a third party that 1st NET modifies or transforms
for use in connection with the NO FEAR Web Site, unless those rights are
required to be assigned to the third party licensor under the terms of the
license to the underlying work, (ii) any copyrights, trademarks or other
intellectual property rights that were developed by 1st NET prior to the date of
this Agreement and which are owned by 1st NET, (iii) any proprietary
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technology developed by 1st NET on or after the date of this Agreement which is
used in connection with NO FEAR Web Site but is not unique to the NO FEAR Web
Site or the Deliverables, and (iv) any copyrights, trademarks or other
intellectual property rights that are developed using the collaborative efforts
of NO FEAR and 1st NET and are jointly owned by NO FEAR and 1st NET
(collectively, the "Nonassigned Rights"). On the Start Date, with respect to the
Nonassigned Rights described in items (i), (ii) and (iii) above, 1st NET hereby
grants to NO FEAR a non-exclusive royalty-free license in perpetuity to use the
Nonassigned Rights in connection with the NO FEAR Web Site. With respect to the
Nonassigned Rights described in item (iv) above, each of NO FEAR and 1st NET
shall have the non-exclusive right to use such jointly owned Nonassigned Rights.
6.3.1 Within thirty (30) days after the Start Date, 1st NET will
execute a formal written assignment to NO FEAR of all of 1st NET's right, title
and interests in the NO FEAR Web Site, including any copyrights in the
Deliverables, the Internet marketing and e-commerce plan, and the NO FEAR Web
Site and its constituent Web Pages developed by 1st NET.
6.3.2 If the Web Site developed by 1st NET for NO FEAR pursuant
to this Agreement is not accepted by NO FEAR, and there is no Start Date, 1st
NET shall retain ownership of its copyrights, and NO FEAR shall have no right to
copy, use, display or modify the Internet marketing and e-commerce plan, the Web
Site or its constituent Web Pages developed by 1st NET.
6.4 NO FEAR'S COPYRIGHTS. NO FEAR's copyrights, trademarks or other
intellectual property rights in Content provided by NO FEAR, or any other
material developed by NO FEAR, shall belong to NO FEAR and 1st NET shall have no
right to copy, use or display such Content or materials except for the purpose
of developing and maintaining the NO FEAR Web Site.
7.0 DATA SECURITY CONSIDERATIONS. 1st NET will initially use the Microsoft
Internet Security Framework for transactional security when collecting order and
credit card information from Purchasers and transmitting data and instructions
to banking institutions. Provided that 1st NET uses the Microsoft Internet
Security Framework or another industry standard security system approved by NO
FEAR, 1st NET shall have no responsibility or liability for any failures or
inadequacies of the security system employed.
8.0 WARRANTY AND DISCLAIMER OF LIABILITY.
8.1 FUNCTIONALITY. 1st NET warrants that the NO FEAR Web Site and its
constituent Web Pages developed by 1st NET will provide the basic functionality
described in this Agreement. If a material nonconformity appears or is
discovered during the term of this Agreement and NO FEAR communicates this fact
with details to 1st NET in writing, 1st NET will use its reasonable efforts to
correct the non-conforming functionality within a reasonable time as NO FEAR's
sole and exclusive remedy.
8.2 WARRANTY EXCLUSIONS. 1st NET does not warrant that the NO FEAR Web
Site will meet NO FEAR's needs, the performance of data communication lines
accessing the Web Server, the Internet, the Web Server itself, nor the
performance of any aspect of the NO FEAR Web Site or its constituent Web Pages
that are not under 1st NET's direct control. Without limiting the generality of
the foregoing, 1st NET is not responsible for problems in the interaction of the
Web Pages with Web Browsers or versions of Web Browsers that the NO FEAR Web
Site was not designed for. NO
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WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE SHALL APPLY.
This is a commercial and not personal or family transaction.
9.0 WARRANTY OF TITLE, NON-VIOLATION OF LAW, AND INDEMNIFICATION BY NO FEAR.
9.1 NO FEAR WARRANTIES. NO FEAR warrants, to its knowledge, that any
materials NO FEAR specifies and the Content it provides to 1st NET for use or
inclusion in the NO FEAR Web Site or the constituent Web Pages under this
Agreement will not infringe any patent, copyright, trademark or trade secret of
another within the United States, and will not violate any right of publicity or
privacy, be libelous or obscene, nor will any information, recipe, formula or
instruction contained in the materials be injurious to others within the United
States.
9.2 NO FEAR INDEMNIFICATION. NO FEAR shall defend, indemnify and hold
1st NET harmless against any claims based on an allegation that (i) any
materials specified or Content provided by NO FEAR to 1st NET, except to the
extent that 1st NET or any 1st NET Subcontractor has modified such materials or
Content, or (ii) any NO FEAR p or information provided or sold using the
e-commerce facilities of the NO FEAR Web Site violates any warranty in Section
8.1
9.3 INDEMNIFICATION LIMITATIONS. NO FEAR shall have no liability under
this indemnity to the extent that any infringement or other injury is
established to have resulted from the use of materials, Content, or information
specified or provided by 1st NET, any material, Content, or enhancement,
improvement or development of the NO FEAR Web Site and its constituent Web Pages
performed by 1st NET or any 1st NET Subcontractor. NO FEAR's only liability
hereunder shall be for that portion of an infringement or injury caused by NO
FEAR, but not for any infringement or injury caused by 1st NET or others.
9.4 NOTICE OF CLAIMS. 1st NET shall promptly notify NO FEAR when it
learns of the existence of any claim, demand, or other matter to which NO Fear's
indemnification obligations may apply, and shall allow NO FEAR to defend the
same at its own expense and with counsel of its own selection. 1st NET shall at
all times also have the right to fully participate in the defense at its own
expense. If the claim is one that cannot by its nature be defended solely by NO
FEAR, then 1st NET shall make available all information and assistance that NO
FEAR may reasonably request at NO FEAR's expense. Subject to NO FEAR's
indemnification obligations to 1st NET as set forth in Section 9.2 hereof, NO
FEAR shall have the absolute right to settle any claim, demand or other matter
on such terms as it shall determine.
9.5 POSSIBLE ACTIONS. Should any materials specified or Content provided
by NO FEAR to 1st NET for use in the NO FEAR Web Site or constituent Web Pages,
or any NO FEAR Web Product or information provided or sold through the NO FEAR
Web Site become or, in NO FEAR's opinion, be likely to become the subject of a
claim of infringement of a patent, trademark, trade secret or copyright, or that
they are likely to become the basis of a claim alleging the violation of the
right of publicity or privacy, that the material is libelous or obscene, that it
was injurious to others, or otherwise violates an applicable law, rule or
regulation NO FEAR may:
9.5.1 If possible, procure for itself, at no cost to 1st NET, the
right to continue to use, display or provide the materials in question;
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9.5.2 Request 1st NET's assistance, which will be provided by 1st
NET without cost, with the replacement or modification of the NO FEAR Web Site
or constituent Web Pages to correct or eliminate the potential problem; or
9.5.3 Request 1st NET's assistance, which will be provided by 1st
NET without cost, with the removal of the offending material from the NO FEAR
Web Site or discontinuance of the sale or distribution of any NO FEAR Web
Products or information offered on the NO FEAR Web Site.
10.0 WARRANTY OF TITLE, NON-VIOLATION OF LAW, AND INDEMNIFICATION BY 1ST NET.
10.1 1ST NET WARRANTIES. 1st NET warrants that, except for materials
that are specified or Content that is provided to 1st NET by NO FEAR, the Code
employed by 1st NET in the NO FEAR Web Site and its constituent Web Pages, and
any materials provided by 1st NET or any 1st NET Subcontractor for use or
inclusion in the NO FEAR Web Site and its constituent Web Pages, will not
infringe any patent, copyright, trademark or trade secret of another within the
United States, and will not violate any right of publicity or privacy, be
libelous or obscene, nor will any information, recipe, formula or instruction
contained in the materials be injurious to others within the United States.
10.2 1ST NET INDEMNIFICATION. 1st NET shall defend, indemnify and hold
NO FEAR harmless against any claims based on an allegations that any materials
developed or supplied by 1st NET, or supplied by NO FEAR and modified by 1st NET
or by any 1st NET Subcontractor, infringe any patent, copyright, trademark or
trade secrets belonging to a third party and from any claims alleging a
violation of the right of publicity or privacy, that the material is libelous or
obscene, or that it was injurious to others.
10.3 INDEMNIFICATION LIMITATIONS. 1st NET shall have no liability under
this indemnity to the extent that any infringement or other injury is
established to have resulted from the use of materials, Content or information
specified or provided by NO FEAR, any material, Content or information not
supplied or modified by 1st NET or by any 1st NET Subcontractor, or from any
material modification, editing, revision, enhancement, improvement or
development of the NO FEAR Web Site and its constituent Web Pages not actually
performed by 1st NET or by any 1st NET Subcontractor. 1st NET's only liability
hereunder shall be for that portion of an infringement or injury caused by 1st
NET or by any 1st NET Subcontractor, but not for any infringement or injury
caused by NO FEAR or other third parties other than 1st NET Subcontractors.
10.4 NOTICE OF CLAIMS. NO FEAR shall promptly notify 1st NET of the
existence of any claim, demand or other matter to which 1st NET's
indemnification obligations may apply, and shall allow 1st NET to defend the
same at its own expense and with counsel of its own selection. NO FEAR shall at
all times also have the right to fully participate in the defense at its own
expense. If the claim is one that cannot by its nature be defended solely by 1st
NET, then NO FEAR shall make available all information and assistance that 1st
NET may reasonably request at 1st NET's expense. 1st NET agrees that it shall
have no authority to settle any claim, demand or other matter which may in any
manner affect NO FEAR's trademarks or other intellectual property rights without
NO FEAR's prior written consent.
10.5 POSSIBLE ACTIONS. Should any components of the NO FEAR Web Site or
constituent Web Pages, for which 1st NET is responsible, become, or in 1st NET's
opinion, be likely to become, the subject of a claim of infringement of a
patent, trademark, trade secret or copyright, or that they are likely to become
the basis of a claim alleging the violation of the right of publicity or
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privacy, that the material is libelous or obscene, or that they were injurious
to others, 1st NET may do any one of the following at 1st NET's option:
10.5.1 Procure for NO FEAR, at no cost to NO FEAR, the right to
continue to use the NO FEAR Web Site or constituent Web Pages;
10.5.2 Replace or modify the NO FEAR Web Site or constituent Web
Pages, at no cost to NO FEAR, to correct or eliminate the potential problem,
provided that the same function is performed by the replacement of NO FEAR Web
Site or constituent Web Pages;
10.5.3 Or if the right to continue using the material cannot be
obtained or the material cannot be replaced or modified at reasonable cost,
remove, at no cost to NO FEAR, the offending material from the NO FEAR Web Site.
11.0 REMOVAL OF DISPUTED MATERIAL.
11.1 FORWARDING OF COMPLAINTS. In the event that 1st NET receives a
written complaint alleging that any aspect of the NO FEAR Web Site, its
constituent Web Pages, the NO FEAR Web Products, the 1st NET Products, 3P
Advertising or information distributed through the NO FEAR Web Site is injurious
to another, infringes or otherwise violates any third parties' right, or any law
or regulation, 1st NET will promptly forward a copy of the complaint to NO FEAR.
If NO FEAR receives such a complaint, it will promptly forward a copy of the
complaint to 1st NET.
11.2 RIGHTS TO REMOVE DISPUTED MATERIAL. Either NO FEAR or 1st NET shall
have the right to remove, or require 1st NET to remove, any disputed material
from the NO FEAR Web Site, or cease selling or distributing any products,
advertising or information through the NO FEAR Web Site pending the resolution
of any dispute over the Content of the NO FEAR Web Site or the NO FEAR Web
Products or information. The removal may take place at any time after the party
initiating the removal has received or given notice of a written complaint. The
party initiating the removal of disputed material, products, advertising or
information shall promptly notify the other party of its action. Neither party
shall have any liability to the other for the removal of any material from the
NO FEAR Web Site under the provisions of this Section 11.2. In the event that
1st NET shall desire to exercise its right to remove disputed material from the
NO FEAR Web Site, 1st NET shall first notify NO FEAR in writing that it desires
to remove disputed material from the NO FEAR Web Site, which notice shall
describe the disputed material and specify the reasons for such proposed
removal. If, within ten (10) days after receipt of such notice, NO FEAR notifies
1st NET in writing that it has determined that such disputed material should not
be removed, and agrees to indemnify 1st NET against any liability arising from
such determination, 1st NET shall not remove the disputed material.
12.0 TERM AND TERMINATION.
12.1 TERM. This Agreement shall begin and become effective from April 1,
1999 and shall continue for an initial term of thirty-six (36) months after the
month which includes the Start Date. Thereafter, the Agreement will
automatically be renewed for successive twelve (12) month terms unless one party
notifies the other three (3) months prior to any renewal term that it desires to
terminate this Agreement.
12.2 LATE START DATE. If the Start Date does not occur by September 1,
1999 for any reason, each party shall have the right to immediately terminate
this Agreement by giving the other party written notice of its election to
terminate this Agreement.
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12.3 DISCRETIONARY TERMINATION. Notwithstanding the normal term of this
Agreement set forth in Section 12.1, within thirty (30) days after the end of
the Initial Period, each party shall have the right to terminate this Agreement
for any reason by giving the other party written notice of its election to
terminate this Agreement, which notice shall specify the effective termination
date which shall be at least thirty (30) days after the date of such written
notice.
12.4 TERMINATION UPON MATERIAL BREACH. Notwithstanding the normal term
of this Agreement set forth in Section 12.1, either party shall have the right
to terminate this Agreement if the other party defaults in any of its material
obligations under this Agreement, unless within thirty (30) days after written
notice of such default the other party remedies the default.
12.5 LIABILITY LIMITATIONS. Neither party to this Agreement shall be
liable by reason of the termination of this Agreement to the other for
compensation, reimbursement or damages on account of any loss of prospective
profits on anticipated sales or on account of expenditures, investments, leases
or other commitments relating to the business or goodwill of either party,
notwithstanding any law to the contrary.
13.0 CONFIDENTIALITY.
13.1 NO FEAR CONFIDENTIAL INFORMATION. This Agreement, any confidential
NO FEAR business information provided to 1st NET in writing that is clearly
marked confidential at the time of disclosure, and the pricing, terms and
conditions under which 1st NET is willing to provide its services under this
Agreement, shall be kept confidential for a period of two (2) years following
the termination of this Agreement.
13.2 PURCHASER DATA. During the course of its performance under this
Agreement, 1st NET will collect data and information about Purchasers visiting
the NO FEAR Web Site, and shall provide such data and information to NO FEAR,
and make such data and information accessible to NO FEAR on a current basis. The
privacy of individual Purchaser will be maintained in accordance with the
privacy policies set forth on the NO FEAR Web Site. 1st NET will also be free to
retain, evaluate and freely utilize such data and information for its own
purposes.
13.3 EXCLUSIONS. Confidential information shall not include any
information which is already known to the recipient at the time of disclosure
through lawful channels of communication; or is or becomes publicly known
through no wrongful act of the recipient; or is rightfully received from a third
party without a similar restriction and without breach of this Agreement; or is
independently developed by the recipient without breach of this Agreement; or is
furnished to a third party by the disclosing party without a similar restriction
on the third parties' rights; or is approved for release by written
authorization of the disclosing party.
14.0 GENERAL CONDITIONS.
14.1 RELATIONSHIP OF THE PARTIES. No party hereto is an agent or
representative of the other, and no party shall be liable for or bound by any
representation, act or omission whatsoever of the other party. This Agreement
shall in no way constitute the parties hereto, partners or joint venturers. This
Agreement is not for the benefit of any third party.
14.2 FORCE MAJEURE. Nonperformance of either party shall be excused to
the extent that performance is rendered impossible by strike, fire, flood,
governmental acts or orders or restrictions, failure of suppliers or
contractors, or any other reason where failure to perform is beyond the control
and not caused by the negligence of the non-performing party.
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14.3 NOTICES. All notices, demands, requests, consents, statements,
satisfactions, waivers, designations, refusals, confirmations, denials and other
communications that may be required or otherwise provided for or contemplated
hereunder shall be in writing and shall be deemed to be properly given and
received (i) upon delivery, if delivered in person or by facsimile transmission
with receipt acknowledged, (ii) one (1) business day after having been deposited
for overnight delivery with Federal Express or another comparable overnight
courier service, or (iii) three (3) business days after having been deposited in
any post office or mail depository regularly maintained by the U.S. Postal
Service or the official governmental postal service in the Territory, as the
case may be, and sent by registered or certified mail (or its equivalent in the
Territory), postage prepaid, addressed as follows:
If to NO FEAR: If to 1st NET:
0000 Xxxxxxx Xxxxxx 00000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxx 00000 Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxx Attention: Xxxxxxx X. Writer, Jr.
Fax: (000) 000-0000 Fax: (000) 000-0000
or to such other person or persons at such address or addresses as may be
designated by written notice to the other parties hereunder.
14.4 SEVERABILITY. If any provision or provisions of this Agreement
shall be held to be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
14.5 BINDING EFFECT, BENEFITS. This Agreement shall inure to the benefit
of and be binding upon the parties hereto and their respective heirs, successors
and assigns; provided, however, that nothing in this Agreement shall be
construed to confer any rights, remedies, obligations or liabilities on any
person other than the parties hereto or their respective heirs, successors and
assigns.
14.6 TITLE AND CAPTIONS. Section headings are for convenience only and
shall not be considered in the interpretation of this Agreement.
14.7 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same document. The parties additionally
acknowledge and agree that this Agreement may be executed and delivered by
facsimile. At such time as each of the parties has a facsimile copy of this
Agreement, and/or counterparts thereof, containing the signatures of all of the
parties, this Agreement shall be treated as having been fully executed and
delivered for all purposes.
14.8 ENTIRE AGREEMENT. This Agreement sets forth the entire agreement
and understanding of the parties relating to the subject matter herein and
merges all prior discussions between them. No modification of or amendment to
this Agreement, nor any waiver of any rights under this Agreement, shall be
effective unless in writing and signed by both parties to this Agreement.
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14.9 GOVERNING LAW. This Agreement shall in all respects be interpreted,
construed in accordance with, and governed by the internal laws of the State of
California, without regard to the rules of conflict of laws.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
1ST NET TECHNOLOGIES, INC. NO FEAR, INC.
a Colorado corporation a California corporation
By: /s/ XXXXXXX X. WRITERS, JR. By: /s/ XXXX XXXX
-------------------------------- --------------------------------
Xxxxxxx X. Writers, Jr. Xxxx Xxxx,
Chief Executive Officer Chief Executive Officer
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