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EXHIBIT 10.26
AGREEMENT FOR TERMINATION
OF COMPUTER SUPPLY ARRANGEMENT
THIS AGREEMENT FOR TERMINATION OF COMPUTER SUPPLY ARRANGEMENT
("Agreement for Termination of Computer Supply Arrangement") is entered into by
and between ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. ("Intellesale"), a Delaware corporation with
its principal place of business at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, and FlashNet Communications, Inc. ("FlashNet"), a Texas corporation with
its principal place of business at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇. Intellesale and FlashNet are sometimes collectively referred
to herein as "the Parties."
WHEREAS, the Parties executed a letter agreement dated on or about June
2, 1999, amended twice thereafter by amendment signed by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, of
FlashNet, and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, for Intellesale, and amendment dated on or about
July 7, 1999 (as amended, the "Original Agreement"), in order to effect
FlashNet's "Free PC" program, whereby FlashNet would give new FlashNet customers
a refurbished personal computer, purchased by FlashNet from Intellesale, as a
rebate following the customer's execution of a 24- or 36-month Internet service
contract with FlashNet;
WHEREAS, disputes have arisen between FlashNet and Intellesale relating
to, among other things, performance under the Original Agreement;
WHEREAS, FlashNet has entered into an agreement with Prodigy
Communications Corp. providing for sale of FlashNet to Prodigy Communications
Corp. and in connection therewith, FlashNet desires to modify the arrangement
between Intellesale and FlashNet.
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Agreement For Termination of Computer Supply Arrangement Page 1
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WHEREAS, FlashNet has filed an action styled FlashNet
Communications, Inc. v. ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc., numbered Cause Number
▇▇▇-▇▇▇▇▇▇-▇▇, before the 141st Judicial District Court, Tarrant County, Texas
("the Texas Lawsuit"); and
WHEREAS, as more fully described below, Intellesale and FlashNet now
desire to compromise, resolve and settle the outstanding liabilities as set
forth below, finally and forever, to avoid the uncertainty, time and expense of
litigation, by and through the execution of this Agreement for Termination of
Computer Supply Arrangement;
NOW, THEREFORE, for and in consideration of the mutual promises and
agreements set forth herein, including the recitals stated below, the receipt
and sufficiency of which are hereby acknowledged, Intellesale and FlashNet agree
as follows:
1. Intellesale, on behalf of itself and its agents, assigns,
owners, representatives, brokers, officers, directors,
shareholders, insurers, reinsurers, attorneys, subsidiaries,
affiliates, and all persons in privity with such individuals
or organizations, does hereby RELEASE, acquit, and forever
discharge FlashNet, and each of its agents, assigns, owners,
representatives, brokers, officers, directors, shareholders,
insurers, reinsurers, attorneys, subsidiaries, affiliates
(including, without limitation, parent companies), and all
persons in privity with such individuals or organizations
(the "Released FlashNet Parties"), from each and every,
joint and several, claim, demand, action and/or cause of
action which: (i) relates in any way to the filing of the
Texas Lawsuit; or (ii) has been or could have been asserted
by Intellesale against the Released FlashNet Parties through
the date of this Agreement for Termination of Computer
Supply Arrangement relating in any way to the Original
Agreement, including, without limitation, any demands for
payments that were or could have been made; by way of
invoice or otherwise, upon FlashNet for computers and/or
computer hardware provided under the Original Agreement or
charges relating to such computers and/or computer hardware;
provided, however, FlashNet is not released from (i) any
claim by Intellesale against FlashNet relating in any way to
claims against Intellesale by any third party (including,
without limitation, individuals and governmental entities)
in respect of FlashNet's obligations under the Original
Agreement; or (ii) its obligations under this Agreement for
Termination of Computer Supply Arrangement or (iii) any
agreements or contracts entered into between Intellesale and
FlashNet executed after the date of this Agreement for
Termination of Computer Supply Arrangement. The parties
hereto further agree that each party hereto shall bear its
own attorneys' fees in the above-referenced dispute.
Intellesale expressly agrees to indemnify and hold harmless
FlashNet, its agents,
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Agreement For Termination of Computer Supply Arrangement Page 2
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assigns, owners, representatives, brokers, officers,
directors, shareholders, insurers, reinsurers, attorneys,
subsidiaries, affiliates, and all persons in privity with
such individuals or organizations, of, from and against any
and all liability, including costs, damages (whether arising
in contract, tort or otherwise), attorney's fees, and expert
fees in connection with any third-party claims in any way
relating to Intellesale's obligations under the Original
Agreement or the computers and/or computer hardware furnished
by Intellesale in the past, present or future. The
indemnifying party shall have the right to settle any claims
in its sole discretion. The indemnified party may settle any
claims with the written consent of the indemnifying party,
which consent shall not be unreasonably withheld.
2. FlashNet, on behalf of itself and its agents, assigns,
owners, representatives, brokers, officers, directors,
shareholders, insurers, reinsurers, attorneys, subsidiaries,
affiliates, and all persons in privity with such individuals
or organizations, does hereby RELEASE, acquit, and forever
discharge Intellesale, and each of its agents, assigns,
owners, representatives, brokers, officers, directors,
shareholders, insurers, reinsurers, attorneys, subsidiaries,
affiliates (including, without limitation, parent companies),
and all persons in privity with such individuals or
organizations (the "Released Intellesale Parties"), from each
and every, joint and several, claim, demand, action and/or
cause of action which has been or could have been asserted by
FlashNet against the Released Intellesale Parties through the
date of this Agreement for Termination of Computer Supply
Arrangement relating in any way to the Original Agreement;
provided, however, notwithstanding the foregoing, FlashNet
does not release the Released Intellesale Parties from: (i)
any claim by FlashNet against Intellesale relating in any way
to claims against FlashNet by any third party (including,
without limitation, individuals and governmental entities) in
respect of Intellesale's obligations under the Original
Agreement; (ii) any claim for damages relating to the failure
of computers and/or computer hardware furnished under the
Original Agreement to be Y2K compliant which is suffered by
FlashNet following the date of this Agreement for Termination
of Computer Supply Arrangement; (iii) Intellesale's
obligations under this Agreement for Termination of Computer
Supply Arrangement; or (iv) Intellesale's obligations under
any agreements or contracts entered into between Intellesale
and FlashNet executed after the date of this Agreement for
Termination of Computer Supply Arrangement. The parties hereto
further agree that each party hereto shall bear its own
attorneys' fees in the above-referenced dispute. FlashNet
expressly agrees to indemnify and hold harmless Intellesale,
its agents, assigns, owners, representatives, brokers,
officers, directors, shareholders, insurers, reinsurers,
attorneys, subsidiaries, affiliates, and all persons in
privity with such individuals or organizations, of, from and
against any and all liability, including costs, damages
(whether arising in contract, tort or otherwise), attorney's
fees, and expert fees, in connection with any third-party
claims in any way relating to FlashNet's obligations under the
Original Agreement. The indemnifying party shall have the
right to settle any claims in its sole discretion. The
indemnified party may settle any claims with the written
consent of the indemnifying party, which consent shall not be
unreasonably withheld.
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3. In exchange for the various commitments by Intellesale
pursuant to this Agreement for Termination of Computer Supply
Arrangement, FlashNet shall pay to Intellesale the sum of TWO
MILLION NINE HUNDRED THOUSAND DOLLARS ($2,900,000.00) by wire
transfer within one business day following execution of this
Agreement for Termination of Computer Supply Arrangement by
the Parties and delivery by Intellesale of an original,
fully-executed performance bond in the form attached hereto as
Exhibit A.
4. The Parties agree that the Original Agreement is hereby
terminated effective on he date on which the payment provided
in the preceding Section is made.
5. FlashNet shall, through its attorneys, file a voluntary
nonsuit, within one business day following the date on which
this Agreement for Termination of Computer Supply Arrangement
is fully executed by the Parties, with the 141st Judicial
District Court, Tarrant County, Texas, of the action styled
FlashNet Communications, Inc. v. ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.,
numbered Cause Number ▇▇▇-▇▇▇▇▇▇-▇▇.
6. Intellesale agrees to provide a 3 Year Warranty with
respect to each and every computer ever furnished to FlashNet
or customers of FlashNet pursuant to the Original Agreement
(or furnished pursuant to Intellesale's warranty obligation
pursuant to this Agreement for Termination of Computer Supply
Arrangement) such that if any such computer or computer
hardware fails for any reason covered by Intellesale's
warranty obligations as described in the Original Agreement on
such computer or computer hardware within 3 years following
original delivery of such computer to any FlashNet customer,
FlashNet or such FlashNet customer may receive a replacement
at no extra cost; provided, however, Intellesale shall not be
responsible for replacing any computers or computer hardware
or software licenses pursuant to this paragraph if the
original of such computer or computer hardware or software
licenses is not returned unless FlashNet pays Intellesale the
amounts listed in paragraph 7b reflecting the cost to FlashNet
of such computers and computer hardware. FlashNet will use its
commercially reasonable best efforts to determine if software
media (disks) were also supplied to such FlashNet customer and
will request the return of any such software media along with
the computer or computer hardware as appropriate. FlashNet
will also use its commercially reasonable best efforts to
avoid the return of nondefective computer and/or computer
hardware. Computers and computer hardware delivered by
Intellesale pursuant to this Agreement for Termination of
Computer Supply Arrangement shall at all times be Y2K
compliant and meet the specifications and configurations
specified in Exhibit B hereto, and the definition of
"Refurbished" or "Manufacturer Refurbished" attached hereto as
Exhibit C. Following the expiration of three years after the
date hereof, no further warranty obligation of Intellesale
shall accrue; provided, however, the terms of this clause
shall not affect Intellesale's warranty obligation accruing
prior to the date of such expiration. Intellesale hereby
acknowledges that, although FlashNet may assist with
Intellesale's warranty fulfillment obligations as provided
below, all warranty obligations described in this paragraph
are, and shall at all times remain, the sole and exclusive
obligation of Intellesale.
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7. Beginning tow days after the effective date hereof Intellesale
agrees to permit FlashNet to assist Intellesale in the following manner
with fulfillment of its Intellesale warranty obligations to persons who
have received computers and/or computer hardware pursuant to the
Original Agreement. Such assistance by FlashNet may be terminated by
FlashNet at any time in FlashNet's sole and absolute discretion on 30
days' written notice to Intellesale. For so long as FlashNet shall, in
its discretion, assist in the fulfillment of Intellesale's warranty
obligations, the parties agree as follows:
a. FlashNet shall provide telephone support for all customer
calls relating to computers furnished pursuant to the
Original Agreement. In the event a replacement computer or
replacement computer hardware must be forwarded to a customer
pursuant to Intellesale's warranty obligation, FlashNet shall
effect such replacement, at Intellesale's cost, from computers
and computer hardware provided in advance by Intellesale to
FlashNet at a site managed and controlled by FlashNet in Fort
Worth, Texas ("FlashNet's Warehouse") in accordance with the
provisions set forth below.
b. In order to effect FlashNet's assistance with the
fulfillment of Intellesale's warranty obligations herein,
Intellesale agrees to supply FlashNet with an inventory (such
inventory, from time to time, the "Replacement Inventory") of
not less than 500 computers, keyboards, mice and 250 monitors
delivered to FlashNet's Warehouse (including additional
computers and computer hardware sent by Intellesale from time
to time, the "Refurbished PCs"), beginning within 5 days
following the execution of this Agreement for Termination of
Computer Supply Arrangement. FlashNet shall provide
Intellesale with a certificate of insurance, naming
Intellesale as an additional insured, covering such
Replacement Inventory. Computers and computer hardware
delivered pursuant to this Agreement for Termination of
Computer Supply Arrangement shall at all times be Y2K
compliant and meet the specifications and configurations
specified in Exhibit B hereto, and the definition of
"Refurbished" or "Manufacturer Refurbished" attached hereto as
Exhibit C. For the first two months following the date hereof,
whenever the Replacement Inventory falls below 400 PCs and/or
180 monitors, FlashNet may request in writing that Intellesale
replenish the Replacement Inventory. Two months following the
date hereof, and each two-month anniversary thereafter, the
number of computers and computer hardware required to be
supplied at the FlashNet Warehouse pursuant to Section 7b
shall be adjusted to equal the actual number and type of
pieces shipped by FlashNet pursuant to Intellesale's warranty
obligation during the preceding two-month period (from time to
time "the Two Month Usage"). FlashNet, upon obtaining returned
computers or computer hardware ("Returned Equipment"), may
ship customers replacements for the product returned in
accordance with Intellesale's warranty obligation set forth
herein, which replacements shall be taken from the Replacement
Inventory. After the first two months following
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the date hereof, whenever the Replacement Inventory falls
below 1/2 of the Two Month Usage, FlashNet may request in
writing that Intellesale replenish the Replacement Inventory.
Within 10 business days following any request by FlashNet for
replenishment of Replacement Inventory, an Intellesale
representative or its designated shipping agent shall collect
the Returned Equipment and replace each piece of Returned
Equipment with a replacement (e.g., a returned keyboard will
be replaced with a replacement keyboard ) at FlashNet's
Warehouse. Intellesale shall have the right to have an
employee work at the FlashNet Warehouse to inspect, along with
FlashNet employees, any Returned Equipment to (i) determine
whether or not it qualifies for the Intellesale warranty as
provided herein, and (ii) determine the configuration so that
appropriate products can be shipped to the FlashNet Warehouse
in connection with replenishing the Replacement Inventory.
Intellesale agrees to provide and keep in force at all times
all necessary insurance coverage in connection with this
employee, including but not limited to workers' compensation
insurance. Intellesale further agrees to indemnify and hold
harmless FlashNet, its agents, employees, assigns,
representatives, brokers, officers, directors, shareholders,
insurers, reinsurers, attorneys, subsidiaries, affiliates and
all persons in privity with such individuals or organizations
of, from and against any and all claims, loss, costs, damages
(whether arising under contract, tort or otherwise),
attorney's fees, expert fees and/or any and all liability in
connection with any claims by third parties and/or
Intellesale's employees or representatives in any way arising
out of or otherwise related to Intellesale maintaining an
employee or other representative on FlashNet's premises.
Intellesale's representative or its designated shipping agent
shall prepare a list inventorying each item of Returned
Equipment and shall provide a copy of such inventory to
FlashNet before leaving FlashNet's premises, with such list to
be signed off on by FlashNet. If FlashNet does not obtain the
Returned Equipment and ships equipment from the Replacement
Inventory, FlashNet shall pay to Intellesale the following for
each piece listed: CPU, $142; monitor, $50; keyboard, $5;
mouse, $3; Windows license, $60 within third (30) days
following invoice by Intellesale. FlashNet agrees to present
Intellesale with a statement on or about the fifth business
day of each month, or more often as necessary, showing, as of
the last day of the preceding month or as of the date of the
last statement, as applicable.
(i) The number of Refurbished PCs sent to FlashNet
customers by FlashNet pursuant to Intellesale's
warranty obligations;
(ii) The number of Refurbished PCs in FlashNet's
possession; and
(iii) The Handling Fee Charge (as defined below).
c. Intellesale will be solely responsible for all shipping costs
associated with shipping Refurbished PCs to FlashNet, to
FlashNet customers, to Intellesale, or any other shipping
reasonably necessary to effectuate the delivery of Refurbished
PCs to FlashNet, FlashNet customers or, upon return, to
Intellesale. If FlashNet, in its sole discretion, elects to use
an item from the
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Replacement Inventory for a use other than to satisfy
Intellesale's warranty obligation as provided herein, then (in
addition to paying the applicable amounts set forth in Section
7b), FlashNet shall be responsible for all shipping charges in
connection therewith. FlashNet agrees not to use more than 200
pieces per month for purposes other than to satisfy
Intellesale's warranty obligation as provided herein without
the prior written consent of Intellesale. Intellesale may
choose, at its reasonable discretion, any nationally recognized
delivery service to use for shipping Refurbished PCs and/or
Returned Equipment. Intellesale agrees to maintain a direct
▇▇▇▇ relationship with such delivery service such that all
shipping of Refurbished PCs pursuant to this Agreement for
Termination of Computer Supply Arrangement shall be paid for by
Intellesale. For each Refurbished PC or monitor shipped by
FlashNet pursuant to this section in fulfillment of
Intellesale's warranty obligations, Intellesale agrees to pay
FlashNet the sum of $20 (the "Handling Fee Charge") within
fifteen (15) business days following FlashNet's invoice
therefor.
d. On the third anniversary of the date hereof, Intellesale
shall have the right to pick up any Replacement Inventory
remaining in FlashNet's Warehouse with any shipping costs
to be borne by Intellesale.
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8. Intellesale agrees to furnish and deliver to FlashNet,
and FlashNet agrees to accept, at FlashNet's sole and
unfettered discretion, any amount up to an aggregate of 5000
new personal computers with the hardware and software listed on
the Schedule attached to this Agreement for Termination of
Computer Supply Arrangement as Exhibit D, and incorporated by
reference the same as if fully copied and set forth at length
(the "New PCs"); provided, however, FlashNet shall be entitled
to alter the specific configurations of the New PCs to be
received from Intellesale in response to market conditions to
the extent such alteration does not raise the price to
Intellesale of each New PC above $500. Intellesale agrees to
deliver to FlashNet the 5000 new PCs within thirty (30) days
following request by FlashNet; provided, however, FlashNet's
first request shall not be made prior to December 5 (for
delivery January 5) and shall not exceed 2,500 New PCs per
quarter. FlashNet shall make payment for delivery of such New
PCs at a cost of $400 per New PC (including all applicable tax
and shipping charges, but plus any applicable sales tax unless
FlashNet provides Intellesale with a sales tax exemption
certificate and corresponding indemnity in connection
therewith) within fifteen (15) days following receipt of the
New PCs and invoices requesting payment for the New PCs from
Intellesale; provided, however, FlashNet shall receive a $300
advertising credit for each New PC sold pursuant to this
Agreement for Termination of Computer Supply Arrangement, which
FlashNet may use to offset its payment obligation to
Intellesale for the New PCs. The advertising credit shall be to
compensate FlashNet for commercially reasonable promotional
activities undertaken at no cost to FlashNet, which shall be
limited to promotion of the New PCs, inclusion of Intellesale's
name on the box for each New PC, and, if Intellesale elects,
for inclusion of an Intellesale marketing disk and/or pamphlet
with each New PC; provided, however, each New PC must be
shipped to FlashNet in an unopened box from the original
equipment manufacturer and, provided further, FlashNet shall
have the right to consent to the content or distribution of any
Intellesale marketing materials, which consent shall not
unreasonably be withheld. Intellesale warrants that it has and
will have good title to the New PCs sold and to be sold
pursuant to this Agreement for Termination of Computer Supply
Arrangement and that Intellesale has and will have the right to
sell the New PCs to FlashNet free of any proprietary rights of
any other party or any other lien or encumbrance. Title to the
New PCs shall pass to FlashNet on the date which FlashNet
receives the New PCs, and Intellesale agrees to take all
necessary steps to effectuate the passage of title. Prior to
the physical receipt of the New PCs by FlashNet, Intellesale
shall bear all risk of loss or damage to the New PCs. The risk
of loss or damage shall pass to FlashNet upon receipt of the
New PCs at the FlashNet Warehouse. Each New PC shall have a
manufacturer's warranty which shall be no less than, under
normal use and service, a standard manufacturer's warranty that
the New PC furnished pursuant to this Agreement for Termination
of Computer Supply Arrangement is free from defects in
materials and workmanship for a warranty period of no less than
one year from the date the computer is delivered by FlashNet to
a FlashNet customer.
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9. Intellesale represents that it is aware of approximately 1080
RMA's, representing requests by FlashNet customers for PCs or
computer hardware. Within one day of the execution of this
Agreement for Termination of Computer Supply Arrangement,
Intellesale will deliver to FlashNet a list of all RMA's it
believes to be outstanding. Within two days of receipt of
Intellesale's list, FlashNet will deliver to Intellesale a
Final List of all outstanding RMA's which must be filled by
Intellesale. The parties will work in good faith during that
two day period to compile a list accurately reflecting all
outstanding RMA "s (the "Final List"). Intellesale agrees to
forward to such customers of FlashNet on the Final List the
replacement computers and/or computer hardware requested by
such FlashNet customers within 5 business days for the first
1080 RMA's following receipt of such Final List from FlashNet
and within 15 days for any RMA's over 1080, with such computers
and computer hardware being Y2K compliant and meeting the
specifications and configuration specified in Exhibit B hereto,
and the definition of "Refurbished" or "Manufacturer
Refurbished" attached hereto as Exhibit C. FlashNet agrees to
use commercially reasonable, good faith efforts to require the
applicable customers to return to Intellesale such originally
shipped PCs or computer hardware, but FlashNet shall have no
liability for failure of any customer to return same.
10. Intellesale hereby represents that it has obtained an
irrevocable performance bond in the form attached hereto as
Exhibit A for the benefit of FlashNet to secure Intellesale's
performance of its obligations pursuant to paragraphs 6, 7, 8
and 9 herein and will provide FlashNet a copy of same within
four business days following execution of this Agreement for
Termination of Computer Supply Arrangement.
11. FlashNet hereby represents that it has obtained and provided
to Intellesale a sales tax exemption certificate in the form
attached hereto as Exhibit E. FlashNet shall indemnify and hold
harmless Intellesale from and against any liability relating to
sales taxes assessed in connection with FlashNet's sales to its
customers, prior to the date hereof, of PCs under the Original
Agreement.
12. Each signatory hereto hereby warrants and represents that such
person has authority to bind the party or parties for whom such
person acts.
13. The parties hereto and their counsel agree to cooperate with
each other in the drafting and execution of such additional
documents, if any, as are reasonably requested or required to
implement the provisions and spirit of this Agreement for
Termination of Computer Supply Arrangement.
14. The parties hereto agree that this Agreement for Termination
of Computer Supply Arrangement is made and is performable in
the State of Texas, and shall be construed in accordance with
the laws of the State of Texas. The parties agree that the
obligations, duties and/or rights arising under this Agreement
for Termination of Computer Supply Arrangement are performable
in, and only in, Tarrant County, Texas. The parties further
agree that this transaction is a "major transaction" as defined
in TEX.CIV.PRAC.&REM.CODEss. 15.020 and that no litigation
relating in
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any way to this Agreement for Termination of Computer Supply
Arrangement shall be brought in any forum other than Texas
State Court in Tarrant County, Texas, which shall have
exclusive jurisdiction over such litigation.
15. If litigation is brought to construe or enforce this Agreement
for Termination of Computer Supply Arrangement, the prevailing
party shall be entitled to recover attorneys' fees, as well as
costs and expenses, including the costs of mediation and expert
fees.
16. The parties hereby further understand and agree that neither
Intellesale nor FlashNet is admitting liability, and, in fact,
is denying liability and has agreed to this Agreement for
Termination of Computer Supply Arrangement purely and simply as
the compromise of claims asserted under the Original Agreement
in order to effect an amicable settlement, and in order to
avoid the time, expense and uncertainty which would accompany
further litigation.
17. The undersigned hereby further understand and agree that the
statements and representations contained herein are considered
to be contractual in nature and not merely recitals.
18. The undersigned hereby further understand and agree that this
Agreement for Termination of Computer Supply Arrangement shall
be binding upon the undersigned's agents, employees, officers,
directors, shareholders, partners, successors, assigns and
agents of the parties hereto forever.
19. This Agreement for Termination of Computer Supply Arrangement
may be executed in counterparts by one or more of the
undersigned parties and all such counterparts when executed by
both parties shall together be deemed to constitute one final
Agreement for Termination of Computer Supply Arrangement and
each such original counterpart, upon execution and delivery
thereof, shall be deemed to be a complete, original and binding
Agreement for Termination of Computer Supply Arrangement upon
the parties subscribed thereto.
20. This Agreement for Termination of Computer Supply Arrangement
may not be amended or modified except in writing, signed by the
party or parties to be bound thereby, or signed by their
respective attorneys, if authorized, and their respective
successors and assigns.
21. Except for an assignment by FlashNet to any parent
corporation, affiliate, subsidiary, successor in interest to
it, or the assignment to a purchaser of all or substantially
all of FlashNet's assets, neither party may assign or delegate
its rights or obligations hereunder without the prior written
consent of the other, which consent shall not be unreasonably
withheld.
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22. Each party hereby warrants and represents that it has not
transferred or assigned any claims or causes of action against
the other, or any part thereof, if any, such claims have ever
existed.
23. This Agreement for Termination of Computer Supply Arrangement
constitutes the entire understanding and agreement of the
parties hereto and supersedes prior understandings and
agreements, if any, between such parties with respect to the
subject matter hereof. There are no representations,
agreements, arrangements or understandings, oral or written,
concerning the subject matter hereof between the parties
hereto, which are not fully expressed or incorporated by
reference herein.
24. The parties hereto acknowledge that they and their attorneys
had substantial input into the drafting of this Agreement for
Termination of Computer Supply Arrangement and that, as a
result, its terms should not be construed against any of them
on the basis of the identity of the drafter.
Dated this day of November, 1999.
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, INC. FLASHNET COMMUNICATIONS, INC.
By: By:
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Name: Name:
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Title: Title:
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Date: Date:
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