IBC.TV, LLC Business To Business Financial Marketing Agreement This Agreement is made and entered into this 10th day of April, 2001, by and between IBC.TV, LLC. ("IBC.TV"), 19800 MacArthur Blvd., Suite 880, Irvine, CA 92612, and Usurf America, Inc....
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EXHIBIT 10.120
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XXX.XX, LLC
Business To Business Financial Marketing Agreement
This Agreement is made and entered into this 10th day of April, 2001, by
and between XXX.XX, LLC. ("XXX.XX"), 00000 XxxXxxxxx Xxxx., Xxxxx 000,
Xxxxxx, XX 00000, and Usurf America, Inc. ("Client").
About XXX.XX
XXX.XX is a ``The Next Generation Wireless Broadband Media Network'' via
its financial news and business to business exchange platform xxx.XXX.Xx.
RECITALS
Whereas Client wishes to engage IBC in enhancing its Business to Business
advertising and marketing strategy;
Whereas IBC is agreeable to assist Client in enhancing its Internet
Business Strategy through design and implementation of a comprehensive
strategic Internet advertising and marketing campaign;
AGREEMENT
NOW THEREFORE, in consideration of mutual covenants and conditions herein
contained, the parties agree as follows:
1. Recitals. The recitals stated above are incorporated herein by this
reference as if set forth in full at this point.
2. Advertising, Marketing and E-Business. IBC will provide to the Client
the following services:
SERVICES
ADVERTISING AND MARKETING SERVICES
The pillar of IBC's Online Investor Relations and Product or Service
Advertising Campaign is implemented on our dial up and broadband financial
programming channels:
Private Label Corporate Broadband TV Channel on XXX.XX
Recently launched, XXX.Xx is a next generation global business network
featuring the highest quality broadband programming and video on demand
headlines, B2B exchanges, and financial services for Financial
Institutions, Growth Companies, and Investors.
Audio / Video Press Releases
Digital Audio CEO Interview streaming
Audio / Video Interview
Online Conference Calls
Updating the Client's web site as needed
Corporate financial information and data
Stock quotes, charts, financials and corporate news
An inquiry database for visitors to the web site
B2B Exchange Listing For Company Products and Services
Broadband Company Profile including :30 Sec. Flash commercial
Press Releases included on home page and IBC email investment newsletter
GLOBAL ADVERTISING AND MARKETING
IBC will design and implement a Global advertising and marketing campaign
on behalf of client. IBC drives traffic to its channels and its clients
web sites through its ongoing aggressive global advertising campaign. IBC
currently advertises on all mediums of communiqué including print, radio,
television, and online to maximize the branding effect. Our advertising
has been seen on CNBC Television, Xxxxxx'x, Raging Bull, CBS Marketwatch,
XxxXxxxxx.xxx.
BUSINESS TO BUSINESS FINANCIAL SERVICES
IBC will design and implement clients products and services into its
Business to Business RFP Exchange. IBC'S Business to Business RFP
Exchange provides buyers and providers with a faster, less expensive, and
more efficient way of doing business. In partnership with the Newmediary
network comprises more than 30 partner directories and currently features
close to 20,000 registered service providers, who have gained access to
over $200 million in qualified RFPs. Buyers use directories to identify,
contact and select service providers that meet their outsourcing needs.
Providers use the directories to market their capabilities as well as
respond to active sales leads and RFPs.
Based in Xxxxxx, Mass., Newmediary was founded in April 1999. The company
is privately held and backed by leading venture capital firms including, GE
Equity, Advanced Technology Ventures, Commonwealth Capital, and Still River
Fund. Newmediary's management team hails from such leading B2B
organizations as The New York Times Company Digital, Engage, Xxxx-Xxxxx and
Cahners.
CAPITAL FORMATION AND STRATEGIC PARTNERING SERVICES
Traditional: IBC will introduce client to its relationships with brokerage
firms, banks, and VC funds.
Online: IBC will use its proprietary process to obtain indications of
interest from its database of over 3000 venture funding sources and forward
qualified leads to client.
Strategic Partnership Development: IBC currently has strategic business
relationships with Fortune 500 companies which it can draw upon to meet the
outsourcing resource needs of our clients. IBC's relationships include
Nasdaq, Amex, ON24, Primezone, Newmediary, MarketXT, AvantGo, StockPoint,
and Morningstar.
3. Compensation: In consideration of Consultant's services as delineated
in Paragraph 2, above, Client agrees to issue to IBC, within five (5) days
of the execution of this Agreement, 300,000 shares of Client's Common
Stock, restricted under Rule 144 of the Securities Act of 1933.
4. Necessary Costs and Expenses: CLIENT shall be responsible for all
out-of pocket expenses, travel expenses, third party expenses, filing fees,
copy and mailing and other necessary and reasonable expenses that IBC may
incur with CLIENT 's prior approval in performing Consulting Services under
this Agreement.
5. Term of Agreement: This Agreement shall become effective April
12,2001, and shall remain in full force and effect for a period of six
months from that date.
6. Client Representations and Indemnification
a. Client represents that all information provided to IBC used in
performance of IBC's duties under this Agreement shall be true and correct,
and shall disclose all material facts and shall not omit any facts
necessary to make statements on behalf of the Client true and correct. The
Client assumes and claims all responsibility for the content of information
provided to IBC by Client which may or shall be disseminated by IBC to
third parties and/or any member of the public on behalf of the Client.
b. Client further represents that the transactions regarding the
issuance of its stock pursuant to terms of Paragraph 3 of this Agreement
are in compliance with and are not violative of any SEC or IRS statutes,
regulations, rules or guidelines, or any rule, regulation, or guideline of
the exchange on which shares of this Company trade.
c. The execution and delivery of this Agreement does not, and the
consummation of the transactions contemplated hereby will not, violate any
provision of the Client's Articles of Incorporation or Bylaws or other
governing Corporate resolutions. The Client has carried out all actions
required by governing federal or state law and/or regulations, the Client's
own Articles of Incorporation, Bylaws, and/or governing Corporate
resolutions to authorize the execution and delivery of this Agreement,
including the provisions for compensation as described in Paragraph 3; and
the person(s) executing this Agreement on behalf of the Client have been
delegated full power, authority and legal right to execute this Agreement.
This Agreement constitutes a valid and binding obligation of the Client.
d. Client will indemnify and defend IBC, its officers, employees,
representatives and agents against all claims, proceedings, suits or other
matters that might be asserted against IBC, its officers, employees,
representatives and agents by reason of this Agreement, and Client will pay
IBC's reasonable attorneys' fees and expenses in connection with such
matters; provided that, IBC acts within the scope of this agreement and is
not grossly negligent in performances of services to or on behalf of the
Client.
7. Consultant's Independent Contractor Status: For purposes of this
Agreement, IBC is an independent contractor. IBC's obligations under this
Agreement consist solely of the services delineated in Paragraph 2 of this
Agreement. In no event shall IBC or its employees or contract personnel
be deemed Client's employees or be considered to be acting as the agent of
Client or otherwise be considered as representing or having the authority
or power to bind Client to any agreement. All final decisions with respect
to acts of Client or its affiliates, whether or not made pursuant to or in
reliance on information or advice provided by IBC pursuant to this
Agreement, shall be those of Client or its affiliates, and IBC shall under
no circumstances be liable for any expense incurred or loss suffered by
Client as a consequences of such actions or decisions.
8. IBC's Commitment to Full Performance, Right to Provide Services to
Others: IBC will allocate sufficient time and resources to insure full
performance of services to Client, as delineated in Paragraph 2 of this
Agreement. IBC reserves the right during the term of this Agreement to
provide consulting and other services of the type described in Paragraph 2
of this Agreement to other companies engaged in businesses of the same or
similar nature to Client who may have need for the services IBC provides.
9. Renewal: This Agreement may be renewed on the terms and conditions
set forth herein by mutual written agreement of the parties.
10. Termination of Agreement: The Agreement may be terminated at the end
of any month during the term as defined in Paragraph 5, above, by mutual
agreement of the IBC and Client; neither IBC nor Client may terminate the
Agreement without consent of the other. In the event that IBC and Client
agree to terminate:
a. IBC and Client must evidence their mutual accord by a writing dated
and executed by both parties identifying the date of termination;
b. IBC agrees to endorse over and transfer back to Client share
certificates equal in amount on a pro rata basis to the number of months
remaining under the term of the Agreement for which services will not be
provided as the result of the termination.
11. Notices: All notices, demands or requests ("Notices") which are
required or permitted to be given
pursuant to this Agreement shall be in writing. Notices shall be delivered
personally, by commercial carrier, by
facsimile transmission or by registered or certified mail, postage prepaid,
addressed to a party as stated below:
If to Client
If to IBC
XXX.XX LLC
00000 XxxXxxxxx Xxxx.
Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx Xxxxxx
Notice given personally, by commercial carrier and by facsimile
transmission shall be deemed effective upon delivery. Notice given by
United States mail is effective the third United States Post Office
delivery day after the date of mailing. Either party to this Agreement may
change its address for Notice by notice given pursuant to this section.
12. Entire Agreement. The making, execution and delivery of this
Agreement has not been induced by any representation, statement, warranties
or Agreements other than those expressed in this Agreement. This Agreement
embodies the entire understanding of the parties. There are no other
Agreements or understandings, written or oral, in effect between the
parties relating to the subject matter of this Agreement, unless expressly
referenced in this Agreement.
13. Amendment. This Agreement may not be amended, changed and/or
modified except by a written agreement signed by all of the parties.
14. Non-Waiver. No waiver of or failure by any party to enforce a
provision, covenant, condition or right under this Agreement (collectively,
"Right") shall be construed as a subsequent waiver of the same Right or a
waiver of any other Right. No extension of time for performance of any
obligations or acts shall be deemed an extension of the time for
performance of any other obligations or acts. If any action by any party
shall require the consent or approval of another party, such consent to or
approval of such action on any one occasion shall not be deemed a consent
to or approval of such action on any subsequent occasion or a consent to or
approval of any other action on the same or any subsequent occasion.
15. Captions. The captions, section numbers and paragraph numbers
appearing in this Agreement are inserted only as a matter of convenience
and do not define, limit, nor in any way affect this Agreement.
16. Mandatory Arbitration. The parties will attempt to resolve their
disputes through negotiation. The term "disputes" includes, without
limitation, any disagreements between the parties concerning the existence,
formation and interpretation of any provision of this Agreement. Failure
to resolve disputes by negotiation of any controversy or claim between the
parties relating to
this Agreement and/or any claim based on or arising from an alleged failure
of a party to comply with the provisions of the Agreement shall be resolved
by arbitration. Either party may commence the arbitration by sending a
written notice of arbitration to the other party. The arbitration shall be
held by the American Arbitration Association, pursuant to the Commercial
Arbitration Rules of the American Arbitration Association then in effect.
The arbitrator shall be an attorney or judge knowledgeable in the matters
relating to such dispute. Such arbitration shall be binding and conclusive
upon the parties and judgment may be entered upon such decision in
accordance with applicable law in any court having jurisdiction thereof.
Notwithstanding anything contained herein, the parties reserve the right to
seek a judicial temporary restraining order, preliminary injunction and
other similar short term equitable relief prior to the appointment of the
arbitrator. The Arbitral Tribunal will have the right to make a final
determination of the parties' rights, including whether to make permanent,
modify or dissolve any such judicial order.
17. Attorneys' Fees. If any party to this Agreement shall institute an
arbitration or any other action or proceeding to interpret or enforce this
Agreement, or to obtain damages by reason of any alleged breach of this
Agreement, the prevailing party shall be entitled to recover costs of suit
or arbitration and a reasonable sum for attorneys fees, all of which shall
be deemed to have accrued upon the commencement of such action and shall be
paid whether or not such action is prosecuted to award/judgment. The
award/judgment or order entered shall contain a specific provision
providing for the recovery of attorneys' fees and costs incurred in
enforcing such award/judgment or order. For the purpose of this section,
attorneys fees shall include, without limitation, fees incurred in the
following: (a) Post judgment motions; (b) Contempt proceedings; (c)
Garnishment levy and debtor and third-party examination; (d) Discovery;
(e) Bankruptcy litigation.
18. Successors and Assigns. This Agreement and the rights and
obligations of the parties shall be binding upon and inure to the benefit
of the parties and their respective successors and permitted assigns.
19. Severability. If any provision of this Agreement is found to be
invalid or unenforceable by any court or Arbitral Tribunal, only that
provision will be ineffective, unless its validity or unenforceability will
defeat an essential business purpose of this Agreement.
20. Governing Law. This Agreement shall be construed and enforced
according to the laws of the State of California.
21. Counterparts and Copies. This Agreement may
be executed in multiple counterparts, each of which shall be deemed an
original, all of which shall constitute but one Agreement. Copies of this
Agreement, including facsimile copies may be used in lieu of the originals
for all purposes. If a party signs this Agreement, then transmits any
electronic facsimile of the signature page to any other party, that party
receiving transmission may rely upon the facsimile as a signed original of
this Agreement.
22. Consent to Jurisdiction. The parties hereto consent to the
jurisdiction of the American Arbitration Association and hereby waive any
and all venue and jurisdictional objections, whether personal or subject
matter, thereto, and also consent to service of process by any means
authorized pursuant to California law.
23. Time of the Essence. Time is of the essence throughout the term of
this Agreement for every provision in which time is an element. No
extension of time for performance of any acts shall be deemed an extension
of time for the performance of any other acts.
24. Authority. Any entity signing this Agreement on behalf of any other
entity hereby represents and warrants, in an individual capacity, that it
has full authority to do so on behalf of the other entity. Any individual
signing this Agreement on behalf of an entity hereby represents and
warrants, in his individual capacity, that he has full authority to do so
on behalf of that entity.
25. Cumulation of Remedies. The various rights, options, elections,
powers and remedies under this Agreement or granted by law (collectively,
"Rights") shall be construed as cumulative. No single Right is exclusive
of any other Rights.
26. No Third Party Rights. The Parties do not intend the benefits of
this Agreement to inure to any person or entity not a party to this
Agreement. Notwithstanding anything contained in this Agreement, or any
conduct or course of conduct by either party before or after signing this
Agreement, this Agreement shall not be construed as creating any right,
claim or cause of action against either party by any person or entity not
party to this Agreement.
The Parties hereto have executed this Agreement as set forth below:
Usurf America, Inc. "CLIENT"
By: /s/ Xxxxx X. Xxxxxx
"IBC"
By: /s/ Xxxxxxx Xxxxxx
Xxxxxxx Xxxxxx, President
XXX.XX, LLC
