Exhibit 99(i)
DISTRIBUTOR AGREEMENT
DISTRIBUTOR AGREEMENT entered into this 15th day of July, 2002, by and
between NETSTAR2000, INC., a Nevada corporation, (hereinafter, "NETSTAR2000"),
and FIRSTCDP, INC. ("FIRSTCDP"), a Nevada corporation.
WHEREAS, NETSTAR2000 has developed, and will develop, certain CD-ROM
cookbooks and related products (the "Products") and desires to grant Distributor
the right to market and distribute the Products; and
WHEREAS, Distributor is in the business of marketing a website regarding
the Xxxxxx Ashbury district of San Francisco, California, and desires to have
NETSTAR2000 grant to it the right to market and distribute the Products.
NOW, THEREFORE, in consideration of the mutual promises set forth herein,
the parties hereto agree as follows:
1. DEFINITIONS
As used in this Agreement:
(a) The term "Agreement" means this Agreement including all the
Appendices attached hereto;
(b) The term "Products" means the CD-ROM cookbooks described in
Appendix A annexed hereto, and shall include any Enhancements which
NETSTAR2000 has announced or may announce during the term of this
Agreement;
(c) The term "Area" means the territory described in Appendix B
annexed hereto;
(d) The term "Customer" means any end-user of NETSTAR2000's Products;
(e) The term "Effective Date" means the date upon which this Agreement
is executed by the last party to sign;
(f) The term "Enhancements" means all improvements, changes,
revisions, modifications, replacements and updates relating to
NETSTAR2000's Products.
(g) The term "Inventions" means discoveries, improvements and ideas
(regardless of whether or not patentable or copyrightable) relating to
any part of the business or activities of NETSTAR2000.
(h) The term "Competitor" means any person, firm or organization (or
division thereof) engaged in or about to become engaged in the
production and/or sale of any product with which Distributor's license
with NETSTAR2000 has been directly concerned, or with respect to which
Distributor has acquired Confidential Information by reason of
Distributor's license with NETSTAR2000.
(i) The terms "Business or Activities" of NETSTAR2000 means present
and past areas of involvement as described in 1(g), above.
(j) The term "Confidential Information" means any information,
technical data or know-how of NETSTAR2000, including without
limitation, NETSTAR2000's customers, mailing lists, research,
products, services, development, engineering, marketing or finances
which is disclosed by NETSTAR2000 whether directly or indirectly in
writing, orally or by drawings or inspections of parts or equipment to
the Distributor.
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2. LICENSE
2.1 Distribution License
Upon the terms and subject to the conditions of this Agreement,
NETSTAR2000 hereby grants to Distributor a non-exclusive,
non-transferrable right and license to market and distribute the
Products. Distributor shall not modify, translate, decompile, nor
create or attempt to create, by reverse engineering or otherwise, the
Products supplied hereunder, or adapt the Products in any way or for
use to create a derivative work. Distributor may not use, reproduce,
sublicense, distribute or dispose of the Products, in whole or in
part, except as expressly permitted under this Agreement. Nothing
herein shall be interpreted to include, and NETSTAR2000 does not
hereby grant to Distributor, any right or license to enter into a
redistribution agreement or license.
2.2 The Territory
Distributor may market and distribute the Products solely within the
geographical limits set forth in Appendix B attached hereto (the
"Territory"). Nothing contained in this Agreement shall prohibit
NETSTAR2000 from licensing or distributing the Products or from
appointing any third party(ies) to do same within the Territory or
elsewhere. NETSTAR2000 retains the right, in its sole discretion, to
change the Territory assigned to Distributor upon sixty (60) days
prior written notice to Distributor.
2.3 Product Changes
NETSTAR2000 retains the right, in its sole discretion, to upgrade or
modify the Products from time to time. In addition, upon thirty (30)
days prior written notice to Distributor, NETSTAR2000 may add or
delete Products from Appendix A. Upon receipt of any such notice of an
upgrade or modification, or upon the expiration of the notice period
set forth above for additions or deletions to Appendix A, Distributor
shall cease to market and distribute earlier versions of the Products
and/or Products deleted from Appendix A.
2.4 License to Use Trademark and Trade Name
Any and all trademarks and trade names which NETSTAR2000 uses in
connection with the license granted hereunder are and remain the
exclusive property of NETSTAR2000. Nothing contained in this Agreement
shall be deemed to give Distributor any right, title or interest in
any trademark or trade name of NETSTAR2000 relating to the Products.
Subject to notice from NETSTAR2000 in writing which modifies or
cancels such authorization, during the term of this Agreement,
Distributor may use the trademarks and trade names specified by
NETSTAR2000 in writing for normal advertising and promotion of
Products.
3. BEST EFFORTS
The Distributor acknowledges that the Territory is the area of its
principal responsibility and agrees to use its best efforts to promote
the sale of NETSTAR2000's Products and the goodwill of NETSTAR2000 in
the Territory. In accordance with this understanding, the Distributor
agrees not to directly or indirectly sell, lease, license or otherwise
deal in products which in the reasonable discretion of the NETSTAR2000
are competitive with NETSTAR2000's Products.
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4. NETSTAR2000'S PRODUCTS
NETSTAR2000's Products referred to in this Agreement includes those
systems set forth in Appendix A. Appendix A may be amended from time
to time by NETSTAR2000.
5. PROMOTIONAL AND SALES MATERIALS
5.1 Materials
NETSTAR2000 agrees to supply to Distributor, without charge (except
for shipping costs), a limited number of NETSTAR2000's current sales
promotion materials, if any, and any other materials that may be
required for the sale of NETSTAR2000's Products.
5.2 Reproduction and Alteration
The Distributor may reproduce the materials described in 5.1, above,
for the purpose of promoting NETSTAR2000 Products. However, the
Distributor may NOT alter NETSTAR2000 promotional and sales material
without the prior written consent of NETSTAR2000. The Distributor is
allowed the limited right to remove the NETSTAR2000 address, telephone
and fax numbers located on selected promotional materials and replace
with Distributor's own reference.
6. PRICE, PAYMENT AND SHIPMENT
6.1 Price
NETSTAR2000 shall, in its sole discretion, establish the prices for
the Products (the "Prices") and the current Prices are set forth in
Appendix C. NETSTAR2000 may increase or decrease the Prices upon
thirty (30) days written notice to Distributor.
6.2 Orders, Payment and Shipment
Upon NETSTAR2000's receipt of a written order from Distributor (each
an "Order"), NETSTAR2000 will ship to Distributor the designated
quantities of the Products. At Distributor's expense, the Products
shall be shipped by NETSTAR2000 to Distributor F.O.B. origin, freight
pre-paid, with risk of loss to pass to Distributor upon delivery of
the Products by NETSTAR2000 to a common carrier. The terms and
conditions of this Agreement shall apply to all Orders submitted to
NETSTAR2000 by Distributor and supersede any different or additional
terms on any Distributor Order form. Orders issued by Distributor to
NETSTAR2000 are solely for the purpose of requesting delivery dates
and quantities. All Orders shall be subject to acceptance by
NETSTAR2000.
NETSTAR2000 shall use reasonable efforts to deliver accepted Orders
but shall not be liable for any damages to Distributor or to any third
party caused by NETSTAR2000's delay or error in filling, or failure to
fill, any Orders for any reason. NETSTAR2000 shall have no obligation
to accept any Order. Full payment of the Price for all Orders of the
Product and associated shipping costs are due and payable by
Distributor to NETSTAR2000 prior to shipment. All other fees and
expenses payable hereunder for which NETSTAR2000 issues an invoice to
Distributor shall be due and payable thirty (30) days from the date of
the invoice. A late payment charge of the lessor of one and one-half
percent (1.5%) per month or the highest interest rate allowed by
applicable law shall be charged upon all unpaid amounts due hereunder
for more than thirty (30) days. Distributor shall reimburse
NETSTAR2000 for any out-of-pocket expenses incurred at Distributor's
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request, including, without limitation, telephone, shipping, insurance
and travel-related expenses.
6.3 Inspection and Acceptance
Distributor shall inspect all Products immediately upon delivery and
shall, within seven (7) calendar days, give written notice to the
common carrier and NETSTAR2000 of any claim for damages or shortages.
Distributor shall give written notice to NETSTAR2000 within thirty
(30) calendar days of delivery in the event that any Product does not
conform with the terms of this Agreement. If Distributor fails to give
any such notice, the Products shall be deemed accepted for all
purposes of this Agreement.
6.4 Taxes
In addition to the Price and other fees payable hereunder, Distributor
shall pay any federal, state, local or other duties and excise taxes,
now or hereafter applied on the sale, transportation, import, export,
or use of the Products including sales tax, value added tax or similar
tax. Any taxes imposed by federal, state or any local government or
any amount in lieu thereof, including interest and penalties thereon,
paid or payable at any time by NETSTAR2000 in connection with
NETSTAR2000's license to Distributor, exclusive of taxes based on
NETSTAR2000's net income, shall be borne by Distributor.
6.5 Commission
The Distributor shall receive a sales commission from NETSTAR2000
based upon the current price list at time of order, and in accordance
with the "Commission Schedule" set forth in Appendix D (the
"Commission Schedule").
6.6 "Trial Basis" Sales and Return Policy
Returns of any item from the Distributor or its customer requires
prior approval of NETSTAR2000. All "Trial Basis" products sales that
may be offered from time to time by NETSTAR2000 through its
Distributor, must be directed through the Distributor back to
NETSTAR2000. Without exception, the return of product must be received
by NETSTAR2000 within the time specified and the promotion terms
stated by NETSTAR2000 at the time of the purchase and delivery to the
Distributor. It is the responsibility of the distributor to become
familiar with the Return Policy conditions stated within each "Trial
Basis" promotion. NETSTAR2000 retains the right to change the terms of
the Return Policy for each promotion.
7. DISTRIBUTOR OBLIGATIONS
7.1 Distributor's Qualifications
The distributor represents that it has the technical skill, qualified
personnel, and sales facilities required to act as a Distributor of
NETSTAR2000's Products, and agrees to provide and maintain appropriate
sales and customer support services in the Territory to represent
NETSTAR2000 in the best way.
7.2 Marketing Efforts
Distributor agrees to use its best efforts to promote the sale of the
Products in the Territory. Distributor agrees to permit NETSTAR2000 to
review all of Distributor's promotion and advertising material for the
Products prior to use. Distributor shall not use and shall withdraw
and retract any promotion or advertising that NETSTAR2000 finds
unsuitable, or is in breach of the terms of this Agreement.
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7.3 Disclosure
The Distributor shall disclose to NETSTAR2000 on a monthly basis the
number of customer/end-users with each formal Purchase Order to
NETSTAR2000.
7.4 Reports of Customer/End-User Dissatisfaction
The distributor shall immediately make known to NETSTAR2000 any
customer/end-user dissatisfaction with the Product(s) or support
services provided to customer/end-user under the terms of this
Agreement. The Distributor shall also immediately furnish NETSTAR2000
with copies of all correspondence or other such documentation that
relates in any way to customer/end-user dissatisfaction with the
Product(s) or support services provided to customer/end-user under the
terms of this Agreement.
7.5 Prohibited Practices
Distributor may not make any contracts or commitments on behalf of
NETSTAR2000 nor make any warranties or other representations regarding
the Products other than those authorized herein or by NETSTAR2000 in a
separate writing. The Distributor will not remove or alter any
copyright text or trademarks of NETSTAR2000 contained on any
NETSTAR2000 Product or in any NETSTAR2000 promotional and Sales
Literature. The Distributor shall not discount, inflate or deviate
from such terms or prices stipulated within Appendix C (the "Price
List"), without the prior written authorization of NETSTAR2000.
8. NETSTAR2000 CONSULTING SERVICES
NETSTAR2000 shall be available at its then current standard rates to
provide special enhancements, customization and other special work or
services to Distributor which are not covered by this Agreement.
9. AUDIT RIGHTS
Distributor shall maintain accurate books and records of all of the
Products sold by Distributor. Upon reasonable notice to Distributor,
and no more frequently than twice a year, at NETSTAR2000's option,
Distributor shall make such books and records available to
NETSTAR2000, at Distributor's place of business during normal business
hours, to audit the payments being made by Distributor hereunder.
10. RETAIL PRICE CHANGE
10.1 Notice
NETSTAR2000 agrees to provide Distributor thirty (30) days' prior
written notice of its intention to change its then prevailing
published retail prices for the Products.
10.2 Relief from Price Change
In the event of a retail price reduction, NETSTAR2000 agrees to credit
Distributor with the difference between the new discounted purchase
price and the old discounted purchase price for all items ordered, but
not yet delivered, on the date of said price reduction. In the event
of a retail price increase, NETSTAR2000 will honor and fill, at the
existing purchase price, all orders presented by Distributor, whether
or not delivered, prior to the date of said price increase.
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11. FINDER'S FEE
11.1 Scope
Distributor may act as an intermediary in introducing NETSTAR2000 to
value-added resellers or other distributors ("Dealers"). Such
potential Dealers shall negotiate mutually acceptable agreements
directly with NETSTAR2000.
11.2 Fee and Payment
In the event that NETSTAR2000 consummates an agreement with a Dealer
referred to NETSTAR2000 by Distributor in accordance with paragraph
11.1 hereof, NETSTAR2000 shall pay Distributor a fee of twenty percent
(20%) of all net proceeds NETSTAR2000 receives within the first six
(6) months of the term of the agreement between NETSTAR2000 and such
Dealer. For purposes of this Section, net proceeds shall be gross
revenues minus all fees for custom design, freight and other such
incidental fees. NETSTAR2000 shall make finder's fee payments within
sixty (60) days of receipt of payment from such Dealer.
12. OWNERSHIP AND PROPERTY RIGHTS
12.1 Ownership
NETSTAR2000 represents and warrants that it has all necessary rights
in and to all copyrights, patents and other proprietary rights
associated with the Products that are necessary to market and
distribute the Products. NETSTAR2000 has the unrestricted right and
authority to enter into this Agreement and to grant the rights
hereunder with respect to the Products.
12.2 Property Rights
Distributor acknowledges and agrees that the Products hereunder and
all copies thereof constitute valuable trade secrets or proprietary
and confidential information of NETSTAR2000; that title thereto is and
shall remain in NETSTAR2000; and that all applicable copyrights, trade
secrets, patents and other intellectual and property rights in the
Products hereunder are and shall remain in NETSTAR2000. All other
aspects of the Products and all other items licensed hereunder,
including without limitation, Products, methods of processing, the
specific design and structure of individual Products, as well as
screen formats are and shall remain the sole and exclusive property of
NETSTAR2000 and shall not be sold, revealed, disclosed or otherwise
communicated, directly or indirectly, by Distributor to any person,
company or institution whatsoever, other than for the purposes set
forth herein. It is expressly understood and agreed that no title to,
or ownership of, the Products, or any part thereof, is hereby
transferred to Distributor.
12.3 Unauthorized Copying
Distributor agrees that it will not copy, modify or reproduce the
Products in any way. However, Distributor is not responsible for the
disclosure, use, modification or copying of the Products by its
customers or any other third party so long as Distributor had no prior
knowledge that its customers or any other third party intended to
disclose, use, modify, or copy the Products. Distributor agrees to
notify NETSTAR2000 immediately of any circumstances Distributor has
knowledge of relating to any unauthorized use or copying of the
Products by any person or entity not authorized to do so. Distributor
allows NETSTAR2000 to take, at NETSTAR2000's option and under
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NETSTAR2000's control and discretion, any legal action necessary to
prevent or stop the unauthorized use or copying of the Products by any
third person or entity who or which has obtained the Products due, in
substantial part, to the Distributor's chain of distribution. If
Distributor has actual or constructive knowledge of the unauthorized
possession, use, or knowledge of the Products or any other item or
information furnished or made available to Distributor under this
Agreement by any third-party or any Distributor customer and if the
Distributor fails to properly notify NETSTAR2000 immediately of such
possession, use, or knowledge, the Distributor shall indemnify
NETSTAR2000 in respect to any loss suffered by NETSTAR2000, and caused
or contributed to whether directly or indirectly by such unauthorized
reproduction, use, disclosure or improvement of the Product, and in
respect to all legal costs incurred in connection therewith. All
provisions of this section 12.3 shall survive the termination of this
agreement, whether by expiration or otherwise.
12.4 Protection of Software
Distributor agrees that all copies of the Products sold to Distributor
hereunder will remain in their sealed packages, as provided by
NETSTAR2000 to Distributor, until sold.
13. WARRANTY
NETSTAR2000 will enclose, as part of the Products package, a warranty
with respect to the physical media enclosed therein. NETSTAR2000
agrees to fulfill its responsibilities under the warranty delivered
with the Products, as the same shall be modified from time to time.
Distributor acknowledges and agrees that the warranty furnished by
NETSTAR2000 with copies of the Products is the only warranty made (or
to be made) with respect thereto. Distributor agrees to include the
current NETSTAR2000 warranty with every copy of the Products it
distributes and not to make any other representations or warranties
with respect to the Products.
13.1 Disclaimer of Additional Warranties
OTHER THAN THOSE WARRANTIES SET FORTH IN XXXXXXXXX 00, XXXXXXX0000
SPECIFICALLY DISCLAIMS ALL WARRANTIES EXPRESS OR IMPLIED, INCLUDING,
BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE WITH RESPECT TO DEFECTS IN THE DISKETTE OR
OTHER PHYSICAL MEDIA AND DOCUMENTATION, OPERATION OF THE PRODUCTS, AND
ANY PARTICULAR APPLICATION OR USE OF THE PRODUCTS. IN NO EVENT SHALL
NETSTAR2000 BE LIABLE FOR ANY LOSS OF PROFIT OR ANY OTHER COMMERCIAL
DAMAGE, INCLUDING BUT NOT LIMITED TO SPECIAL, INCIDENTAL,
CONSEQUENTIAL OR OTHER DAMAGES. NETSTAR2000'S MAXIMUM LIABILITY
HEREUNDER IS EXPRESSLY LIMITED TO THE AMOUNT PAID UNDER THIS AGREEMENT
BY DISTRIBUTOR TO NETSTAR2000 WITHIN THE THREE (3) MONTH PERIOD
IMMEDIATELY PRECEDING THE CAUSE GIVING RISE TO THE CLAIM.
14. CONFIDENTIALITY AND PROPRIETARY RIGHTS
14.1 Confidentiality
Distributor acknowledges that in the course of dealings between the
parties, Distributor may acquire information about NETSTAR2000, its
business activities and operations, its technical information and
trade secrets, including but not limited to the Products, all of which
are highly confidential and proprietary to NETSTAR2000 (the
"Confidential Information"). Confidential Information shall not
include information generally available to or known by the public, or
information independently developed outside the scope of this
Agreement. Distributor shall hold all such Confidential Information in
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strict confidence and shall not reveal the same except pursuant to a
court order or upon request of NETSTAR2000. The Confidential
Information shall be safeguarded with at least as great a degree of
care as Distributor uses to safeguard its own most confidential
materials or data relating to its own business, but in no event less
than a reasonable degree of care.
14.2 Specific Remedies
If Distributor commits a breach of any of the provisions of Section
14.1 above, NETSTAR2000 shall have, in addition to all other rights in
law and equity, (a) the right to have such provision specifically
enforced by any court having equity jurisdiction, it being
acknowledged and agreed that any such breach will cause irreparable
injury to NETSTAR2000 and that money damages will not provide an
adequate remedy, and (b) the right to require Distributor to account
for and pay to NETSTAR2000 all compensation, profits, monies or other
tangible benefits (collectively "Benefits") derived or received as the
result of any transactions constituting a breach of any of the
provisions of this Article 14, and Distributor hereby agrees to
account for and pay such Benefits.
15. TERM AND TERMINATION
15.1 Term
This Agreement shall have an initial term of one (1) year from the
Effective Date (the "Initial Term"), and shall thereafter
automatically renew for successive one (1) year periods (each a
"Renewal Term"), unless earlier terminated in accordance with the
terms of this Agreement. Either party may cancel this Agreement
effective on the last day of the Initial Term, or any Renewal Term, by
serving written notice of such termination on the other party at least
ninety (90) days prior to the effective date thereof.
15.2 NETSTAR2000 Termination
This Agreement may be terminated immediately by NETSTAR2000 under any
of the following conditions:
(a) if one of the parties shall be declared insolvent or
bankrupt;
(b) if a petition is filed in any court to declare one of the
parties bankrupt or for a reorganization under the Bankruptcy Law
or any similar statute and such petition is not dismissed in
ninety (90) days or if a Trustee in Bankruptcy or a Receiver or
similar entity is appointed for one of the parties;
(c) if Distributor does not pay NETSTAR2000 monies due and owing,
NETSTAR2000 shall have the right to terminate this Agreement on
fourteen (14) days advance written notice. Such notice shall have
no effect if Distributor brings the account current within said
period; or
(d) if Distributor breaches the provisions of Sections 14.1 of
this Agreement; or
(e) if Distributor fails in any calendar year to purchase the
minimum quantity of Products as set forth in Appendix E
("Purchase Schedule") NETSTAR2000 shall have the right to
terminate this Agreement upon thirty (30) days advance, written
notice; however, if Distributor places sufficient orders for
immediate delivery and thereby brings the total for that period
to the requisite total such notice shall have no effect; or
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(f) if Distributor otherwise materially breaches the terms of
this Agreement, and such breach is not cured within thirty (60)
days after written notice of such breach is given by NETSTAR2000.
15.3 Duties Upon Termination
Upon termination of this Agreement for any reason, the parties agree
to continue their cooperation in order to effect an orderly
termination of their relationship. Distributor shall immediately cease
representing itself as a distributor of the Products for NETSTAR2000;
however, Distributor may continue to market and distribute its
inventories of the Products for a period not in excess of two (2)
months. At the end of such period, Distributor shall return all copies
of promotional materials, marketing literature, written information
and reports pertaining to the Products that have been supplied by
NETSTAR2000.
16. INDEMNIFICATION
16.1 Copyright Indemnification
NETSTAR2000 shall indemnify, defend and hold Distributor harmless from
any claims, demands, liabilities or expenses, including reasonable
attorneys' fees, directly resulting from any infringement or violation
of any copyright with respect to the Products, as so awarded against
Distributor by a court of competent jurisdiction, and provided
Distributor is not in breach of this Agreement. Following a decision
by a court of competent jurisdiction that the Products infringe any
third party's copyright, NETSTAR2000 shall, in its sole discretion:
(a) procure for Distributor the right to continue to use, distribute
and sell the Products at no additional expense to Distributor;
(b) provide Distributor with a non-infringing version of the Products
with substantially similar functionality; or
(c) notify Distributor that the Products are being withdrawn from the
market and immediately terminate this Agreement.
16.2 Cooperation by Distributor
Notwithstanding Section 16. 1 of this Agreement, NETSTAR2000 is under
no obligation to indemnify and hold Distributor harmless unless:
(a) NETSTAR2000 shall have been promptly notified of the suit or claim
by Distributor and furnished by Distributor with a copy of each
communication, notice or other action relating to said claim;
(b) NETSTAR2000 shall have the right to assume sole authority to
conduct the trial or settlement of such claim or any negotiations
related thereto at NETSTAR2000's expense; and
(c) Distributor shall provide reasonable information and assistance
requested by NETSTAR2000 in connection with such claim or suit.
16.3 Distributor Indemnification
Distributor shall indemnify, defend and hold NETSTAR2000 harmless from
any claims, demands, liabilities or expenses, including reasonable
attorneys' fees, incurred by NETSTAR2000 as a result of any claim or
proceeding against NETSTAR2000 arising out of or based upon (i) the
combination, operation or use of the Products with any hardware or
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products not supplied or approved in writing by NETSTAR2000, if such
infringement would have been avoided but for such combination,
operation or use or (ii) the modification of the Products by
Distributor or Distributor's customer/end-users.
17. FORECASTS OF EXPECTED ORDERS
The Distributor agrees to furnish NETSTAR2000 with monthly reports
indicating its best forecast of future purchase orders.
18. MINIMUM PURCHASES
The Distributor must make a minimum purchase of the Product in each
calendar year as set forth in Appendix F (the "Purchase Schedule").
Upon twelve (12) months advance written notice, NETSTAR2000 shall have
the right to change the minimum levels of purchase as set forth in
Appendix E.
19. GENERAL
19.1 Force Majeure
Neither party shall be liable or deemed to be in default for any delay
or failure in performance under this Agreement or interruption of
service resulting directly or indirectly from acts of God, or any
causes beyond the reasonable control of such party.
19.2 Jurisdiction and Venue
This Agreement shall be governed by and construed in accordance with
the laws of the State of Nevada. Jurisdiction for litigation of any
dispute, controversy or claim arising out of or in connection with
this Agreement, or the breach thereof shall be only in the Federal or
the State Court with competent jurisdiction located in Nevada.
19.3 Entire Agreement
This Agreement, including the Appendices attached hereto, constitutes
the entire agreement between the parties with respect to the subject
matter hereof and supersedes all previous proposals, both oral and
written, negotiations, representations, commitments, writings and all
other communications between the parties. This Agreement may not be
modified except by a writing signed by a duly authorized
representative of each of the parties.
19.4 Independent Contractors
It is expressly agreed that NETSTAR2000 and Distributor are acting
hereunder as independent contractors and under no circumstances shall
any of the employees of one party be deemed the employees of the other
for any purpose. This Agreement shall not be construed as authority
for either party to act for the other party in any agency or other
capacity, or to make commitments of any kind for the account of or on
behalf of the other except to the extent and for the purposes provided
for herein. Distributor agrees that it is not a partner, broker,
employee or franchisee of NETSTAR2000.
19.5 Assignment
This Agreement is not assignable by either party hereto without the
consent of the other, except that this Agreement shall be assignable
by NETSTAR2000 to an affiliate entity or upon the sale of the right to
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license and sublicense the Products to the purchaser of said right.
This Agreement shall be binding upon and inure to the benefit of the
parties and their respective successors.
19.6 Severability and Waiver
If any provision of this Agreement is determined by a court of
competent jurisdiction to be invalid or unenforceable, such
determination shall not affect the validity or enforceability of any
other part or provision of this Agreement. No waiver by any party of
any breach of any provisions hereof shall constitute a waiver unless
made in writing signed by the party.
19.7 Attorneys' Fees
In any action between the parties to enforce any of the terms of this
Agreement, the prevailing party shall be entitled to recover expenses,
including reasonable attorneys' fees.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by a
duly authorized representative as of the date set forth above.
NETSTAR2000, INC.
By: /s/ Xxxxxx Xxxxxxxxxx
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Name: Xxxxxx Xxxxxxxxxx
Title: Authorized Signatory
DISTRIBUTOR
FirstCDP, Inc.
By: /s/ Xxxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxxx X. Xxxxxxxxx
Title: President
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PRODUCTS - APPENDIX A
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1. CD-ROM cookbook(s) focusing on foods indicative of San Francisco,
California.
2. CD-ROM cookbook(s) focusing on vegetarian and organic foods.
APPENDIX B - TERRITORY
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1. Area shall include the Xxxxxx Ashbury district of San Francisco,
California, and the City of San Francisco.
APPENDIX C - UNIT PRICE LIST
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1. Retail pricing at $24.99 per unit.
APPENDIX D - COMMISSION SCHEDULE
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1. Commission at twenty percent (20%).
APPENDIX E - PURCHASE SCHEDULE
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1. One hundred (100) units per calendar year, timing of purchases to be
determined by Distributor.
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