Exhibit 10.18
NETCHEMISTRY, INC. ASP SOFTWARE SUBSCRIPTION
-------------------
AGREEMENT
------
This Agreement is entered into as of 11th day of August (the "Effective Date")
by and between:
NeWave, Inc. (Newave) having its principal place of business at:
000 Xxxx Xxxxx Xxxxxx #0000
Xxxx Xxxxx, XX 00000
And:
NetChemistry, Inc., (NetChemistry) having its principal place of business at:
0000 Xxxxxx Xxxxx, Xxxxx 000X
Xxxxxxx Xxxxx, XX 00000
1.0 Recitals
1.1 NetChemistry has a proprietary web building and site management tool,
which hosts multiple database driven web sites. NetChemistry wishes to provide
a private label branding of this service for NEWAVE.
1.2 NEWAVE desires to have NetChemistry create a private label, branded
solution for NEWAVE licensing the product and allowing the ability to provide
self-serve managed eCommerce and non-eCommerce Web sites to NEWAVE customers.
2.0 Definitions
"BETA LAUNCH DATE" means the day that all components of the Branded System are
completely developed by NetChemistry and made available for testing, in a secure
environment, by NEWAVE.
"BRANDED SYSTEM" means the NEWAVE labeled service, which is maintained and
operated by NetChemistry on behalf of NEWAVE.
"CLIENTS" refers to third party individuals or businesses that use the Branded
System or purchase services in connection with the Branded System.
"CLIENT WEB SITE" means a site that is created with and resides within the
Branded System.
"CONFIDENTIAL INFORMATION" means any and all information related to the services
and/or business of a party that does not constitute a Trade Secret and that is
treated as confidential or secret by the party (that is, it is the subject of
efforts by the disclosing party that are reasonable under the circumstances to
maintain its secrecy) including, but not limited to, the terms and conditions of
this Agreement. "Confidential Information" shall not include information (a)
already lawfully known to or independently developed by the receiving party, (b)
disclosed in published materials by a party which has the right to publish such
information (c) generally known to the public, or (d) lawfully obtained from any
third party without any obligation of confidentiality.
"INFORMATION ARCHITECTURE" or "IA" means the design of organization and
navigation systems to help Users find and manage information more successfully.
"LIVE LAUNCH DATE" means the day that all components of the Branded System are
completely developed to the satisfaction of NEWAVE and are made available for
use by the general public.
"LOOK AND FEEL" refers to the branding, font, color scheme, and general layout
of a Web site.
"RESELLER WEB SITE" refers to a specific web site industry within the
NetChemistry code, this site creates other web sites and is track-able within
the branded manager console
"THEMES" means color and image combinations that are used to change the basic
look and feel of templates within the Branded System.
"USER DATA" means all information submitted by a User to NEWAVE in connection
with the use by the User of the Branded System.
"USER INTERFACE" or "UI" means the overall look and feel (design, branding, font
and color scheme), or all areas viewed by a Web site's end user.
3.0 Product Development
3.1 PRODUCT IMPLEMENTATION
Subject to the payment by NEWAVE of the Implementation Fee payable pursuant to
Section 15.0 and the performance by NEWAVE of its obligations under Section 3.8,
NetChemistry will develop the Private Label Branded Product in accordance with
the Specifications and the provisions of this Section, in addition to the
provisions of Section 4.0 below ("System Operations").
3.2 DEVELOPMENT SCHEDULE
NetChemistry and NEWAVE will work together to develop the branded product.
NetChemistry and NEWAVE acknowledge that successful implementation of the
branded product depends on the ability of each party to complete its
implementation tasks set forth in this Agreement in a timely and efficient
manner.
3.3 BRANDED SYSTEM
NEWAVE will determine and design the "look and feel" of the User Interface for
each page of the Branded System in addition to providing NetChemistry with the
basic information architecture (site maps) which will brand the complete system
as a product of NEWAVE.
Using the branding GUI and IA provided by NEWAVE NetChemistry will customize the
system, providing all necessary front and back-end programming. A Customization
Set-Up fee will be paid to NetChemistry as outlined in Section 15.0 below. This
customization fee includes up to 5 hours of graphic designer time and 5 hours of
programming time. Additional graphic design time will be billed at $100.00 per
hour; additional programming time will be billed at $150.00 per hour.
The system will not be visibly linked to any NetChemistry branded site or give
the appearance of such branding with logos, URLs, language, email addresses,
etc.
3.3.1 "Portal" Web Site
The "Portal" site is the NEWAVE branded entry point where NEWAVE's clients are
introduced to the system. The copy for this site will be developed by NEWAVE.
Features of the site standard, however NEWAVE reserves the right to improve
portal site functionality or content at its discretion either by making the
changes themselves or by hiring NetChemistry.
The Portal Web Site will have the URL designated and obtained by NEWAVE or will
be mapped to an URL determined by NEWAVE.
3.3.2 Web Builder
An extension of the "Portal" Web Site, the Web Builder is the browser-based tool
that establishes new sites in the system.
The Branding of this tool will be consistent with that of the "Portal." NEWAVE
will provide NetChemistry with the necessary graphic files and information
architecture to be used with this tool. The time required to implement these
changes will be used towards NEWAVE time allowance as per Section 3.3.
3.3.3 Manager Console
The Manager Console is the tool used by NEWAVE and its clients to maintain their
Web sites. The Branding of this tool will be similar to that of the "Portal."
NEWAVE will provide NetChemistry with the necessary graphic files and
information architecture to be used with this tool. The time required for this
project will be charged against Section 3.3.
3.4 WEB STORE SOFTWARE
The branded product provided by NetChemistry will enable the installation,
creation and management of sites sold by NEWAVE and made available to NEWAVE
customers through this Agreement.
3.4.1 A few of the product functionality and features include:
- Browser based management of the entire site
- Dynamic creation of all pages
- Change fonts, sizes and colors all from the browser window
- Upload images from the browser
- Insert images into pages quickly and easily
- Change entire site color scheme quickly and easily
- Full database search capability
- Built-in Meta Tag generator and editing program
- Auto-creation of category and sub-category navigation
- Powerful e-mail communication program for newsletters, monthly specials
etc.
- Display number of daily, weekly, and monthly site visitors
- Online sales tracking tool
- Dynamic titles for all pages
- Image swap for headers, etc.
- Automatic and manual joining of your e-mail lists
- Password protected secure area
- Integrated Search engine submission program
- Shopping Cart
- Offline processing of credit cards ready, real-time upgrade path.
3.5 "THEME" CREATION
Additional themes (colors and images used by the system in a template based
format when creating client web sites) may be created and added to the system's
database of site templates at any time when approved or developed by NEWAVE.
NetChemistry will provide NEWAVE with the capability to add new themes to the
system at its own discretion.
3.6 NETCHEMISTRY IMPLEMENTATION DELIVERABLES
As part of the Branded System implementation services to be provided by
NetChemistry to NEWAVE NetChemistry will:
a. Implement and configure the User Interface and Information Architecture
for the Portal Site, Web Builder, and Manager Console based on the materials
provided by NEWAVE pursuant to Section 3.8.
3.7 NEWAVE. IMPLEMENTATION DELIVERABLES
NEWAVE shall:
a. Within 2 weeks of signing this agreement (Implementation Start Date)
deliver to NetChemistry the specific images, design (in HTML, or as specified by
NetChemistry), including branding, font and color information, and Information
Architecture for the implementation of the User Interface to be included on each
page of the Portal, Web Builder, and Manager Console sections of the Branded
System.
b. By the Implementation Start Date, deliver to NetChemistry all copy that
is to be included on each page of the Portal, Web Builder, and Manager Console
sections of the Branded System.
c. By the Implementation Start Date, choose and obtain the URL for the
Branded System to be used in NetChemistry' DNS registry.
d. By the Implementation Start Date, choose the email addresses to be used
for customer service emails.
e. As promptly as practicable following the Implementation Start Date (but
at least 5 days in advance of the Delivery Date), deliver to NetChemistry the
User's Agreement for the Branded System (in HTML).
3.8 ACCEPTANCE TESTING
3.8.1 NEWAVE shall perform a series of tests to determine whether (a) the
Portal Site is stable and meets the specifications set forth; (b) the Web
Builder is stable and meets the specifications set forth; and (c) the Manager
Console is stable and meets the specifications set forth; and (d) the entire
Branded System meets NEWAVE's quality standards.
3.8.2 NEWAVE shall provide to NetChemistry a reporting of any defects found
in the Branded System. NetChemistry shall promptly correct all such defects.
3.8.3 NEWAVE will decide when to make the Branded System available to users
by linking the NEWAVE Web site to the Portal site (the "Live Launch Date").
4.0 System Operations
4.1 HOSTED ENVIRONMENT
NetChemistry will host the Web Store software on servers provided by NEWAVE and
housed at a NetChemistry owned or controlled data center. NEWAVE will provide
the additional hardware as usage demands.
4.2 INITIAL SERVER SPECIFICATIONS
The server is a Compaq Proliant 6400R, quad Xeon 000 xxx 0xx XXX'x, 0X xxx, 0 -
00.0x hard drives configured as raid 5 array
4.3 SYSTEM ENHANCEMENTS
When applicable, all system enhancements will be conducted during hours that
will not significantly disrupt system performance.
4.4 CLIENT COMMUNICATION
All communication with users of the system will be handled by NEWAVE;
NetChemistry will have no contact whatsoever with NEWAVE clients. All
communication between NEWAVE clients and NetChemistry will be done through
NEWAVE personnel.
The sites within the system will be bound by NEWAVE's privacy policy, which
shall comply with applicable law and the User's Agreement determined by NEWAVE.
4.5 CUSTOMER SERVICE
NetChemistry will not provide customer service to any end users of the web site
software. NetChemistry will provide customer service to NEWAVE technical
personnel as needed for the functionality of the software.
4.6 CLIENT BILLING
4.6.1 NEWAVE will be responsible for all end user billing for new Web sites,
if applicable, and ongoing client services.
4.6.2 NetChemistry software will provide NEWAVE with immediate notice of new
sites created within the system via email.
4.6.3 NetChemistry will provide NEWAVE with an online Branded Manager
Console, which outlines and appropriately designates all new and recurring sites
within the Branded System.
5.0 Licensing of Code
5.1 NetChemistry will employ proprietary programming code in the creation of
the Branded System and Portal. Neither NEWAVE nor any of its clients will own
this code and may not under any circumstances sell, lease, license or otherwise
engage any other companies using the NetChemistry, Inc., dynamic code. All
servers that hold the NEWAVE and NetChemistry Branded System code, as well as
all sites sold by NEWAVE and hosted by XxxXxxxxxxxx.xxx will remain under the
control of NetChemistry. The software to build and manage all Web sites created
with NetChemistry will at all times remain the property of NetChemistry.
NetChemistry leases the software code and systems to NEWAVE whom in turn lease
the software code and systems to their clients. Upon termination or
discontinuance of a NetChemistry built and managed Web site the client retains
only those images and data entered into the system by the client.
5.2 NetChemistry employs a proprietary encryption system to monitor, update,
maintain and protect our source code, any attempt to reverse engineer, bypass,
terminate or otherwise disable our embedded encryption algorithm will cause the
system to stop functioning. Any willful attempt to circumvent this system may
result in the immediate termination of this agreement.
5.3 NEWAVE can not use NetChemistry proprietary software to develop or host
any pornographic or adult content web sites without the prior written
authorization of NetChemistry. An adult web site is any site in which nude
images are displayed. NetChemistry will act as the final authority to determine
weather a site is of an adult or pornographic nature.
6.0 Usage Data
6.1 The NetChemistry system will inform NEWAVE daily of new client sites
created within the system.
6.2 NEWAVE will have access to usage reports and other information regarding
all traffic and activity to the Branded System, including access to the raw log
files.
7.0 Content Ownership
The client will own all copy and custom graphics created for the client's Web
Site. NetChemistry will have no control over client content. It is the
responsibility of NEWAVE to monitor client content and compliance with NEWAVE's
TERMS OF USE statement on the Web Builder site.
8.0 Resale Policy
NEWAVE may sell only give away sites within the system as a bundled part of it
online distributor package.
9.0 Account Management
NetChemistry will assign an Account Manager to NEWAVE who will be easily
accessible by phone during regular business hours, and will work to insure the
success of the NEWAVE branded product. The Account Manager will promptly,
effectively and efficiently respond to maintenance issues that arise after the
product has launched and is being maintained.
10.0 Term and Termination
10.1 The initial term of this agreement shall commence on the Effective Date
and end on the second anniversary of the Acceptance Date. After two years, this
agreement will auto renew on an annual basis unless terminated in writing by
either party within 10 days of anniversary date or any subsequent anniversary
date thereafter.
10.2 NEWAVE will pay NetChemistry a minimum monthly payment as described in
section 16.0 of this Agreement.
The rates NetChemistry bills NEWAVE on a per site, per month basis will remain
the same for 36 months.
10.3 In the event that either Party shall be adjudged insolvent or bankrupt,
or upon the institution of any proceedings by it seeking relief, reorganization
or arrangement under any law relating to insolvency, or if any involuntary
petition in bankruptcy is filed against such Party and said petition is not
discharged within sixty (60) days after such filing, or upon any assignment for
the benefit of its creditors, or upon the appointment of a receiver, liquidator
or trustee of any of its assets, or upon the liquidation, dissolution or winding
up of its business (and "Event of Bankruptcy"), then the Party affected by any
such Event of Bankruptcy shall immediately give notice thereof to the other
Party, and the other Party at its option may terminate this Agreement.
Notwithstanding the foregoing, NetChemistry and NEWAVE acknowledge that the
license granted under this Agreement qualifies as intellectual property under
the United States Bankruptcy Code (the "Bankruptcy Code") and, as such, is
subject to Section 365(n) of Title 11 of the Bankruptcy Code. The provisions of
this Agreement regarding confidentiality and limitation of liability shall
survive any termination or expiration of the Agreement.
10.4 Neither NetChemistry nor NEWAVE may suspend performance of its
respective obligations hereunder unless or until it has been adjudicated that
the other Party hereunder has materially breached a term of this Agreement or
the Agreement has been terminated for other reason.
11.0 Confidentiality
11.1 For the purposes of this Agreement, "Confidential Information" means
information about the disclosing party's or its suppliers' business or
activities that is proprietary and confidential, which shall include all
business, financial, technical and other information of a party marked or
designated by such party as "confidential" or "proprietary," and information
which, by the nature of the circumstances surrounding the disclosure, ought in
good faith to be treated as confidential. The terms and conditions of this
Agreement shall be deemed to be the Confidential Information of each party.
11.2 Each party agrees that (1) it shall not disclose to any third party or
use any Confidential Information disclosed to it by the other except as
expressly permitted in this Agreement and (2) it shall take all reasonable
measures to maintain the confidentiality of all Confidential Information of the
other party in its possession or control, which shall in no event be less than
the measures it uses to maintain the confidentiality of its own information of
similar importance.
11.3 Notwithstanding the foregoing, each party may disclose Confidential
Information (1) to the extent required by a court of competent jurisdiction or
other governmental authority or otherwise as required by law, provided that the
receiving party first gives the disclosing party reasonable notice of such a
requirement, provides reasonable cooperation to the disclosing party in its
efforts to lawfully limit disclosure and gives the disclosing party the
opportunity to defend and/or attempt to limit such production, all at the sole
cost and expense of the disclosing party, or (2) to its legal counsel and
accountants and on a "need-to-know" basis under an obligation of confidentiality
to its banks and other financing sources and their advisors.
12.0 Warranty and Indemnity
12.1 Each of NetChemistry and NEWAVE represents and warrants that it has
full power and authority to enter into this Agreement and to grant the licenses
provided herein, and that this Agreement has been duly authorized, executed and
delivered by such party.
12.2 Each of NetChemistry and NEWAVE represents and warrants that it owns,
or has obtained all necessary rights to distribute and make available as
specified in this Agreement, any and all information, service or content
provided to the other party or made available to third parties in connection
with this Agreement, including without limitation in the case of NetChemistry,
the Branded System.
12.3 Each of NetChemistry and NEWAVE shall indemnify, defend and hold
harmless the other party, its affiliates, officers, directors, employees,
consultants and agents from any and all third party claims, liability, damages
and/or costs (including, but not limited to, reasonable attorneys fees) arising
from or relating to: (a) the breach of any warranty, representation or covenant
by NetChemistry or NEWAVE as applicable, in this Agreement; or (b) any claim
that the Branded System or any information, service or content provided to
NEWAVEor NetChemistry, as applicable, or made available to third parties by
NetChemistry or NEWAVE as applicable, in connection with this Agreement
infringes or violates any third party's copyright, patent, trade secret,
trademark, right of publicity or right of privacy or contains any defamatory
content.
12.4 A party seeking indemnification under this section shall promptly
notify the other party in writing of any and all such claims and shall
reasonably cooperate with such other party in the defense and/or settlement
thereof; provided that, if any settlement requires an affirmative obligation of,
results in any ongoing liability to or prejudices or detrimentally impacts the
indemnified party in any way and such obligation, liability, prejudice or impact
can reasonably be expected to be material, then such settlement shall require
the indemnified party's prior written consent (not to be unreasonably withheld
or delayed) and the indemnified party may, at its sole cost and expense, have
its own counsel in attendance at all proceedings and substantive negotiations
relating to such claim.
13.0 Limitation of Liability
In no event shall either party be liable to the other for any special,
incidental or consequential damages, whether based on breach of contract, tort
(including negligence) or otherwise, whether or not that party has been advised
of the possibility of such damage.
The liability of each party for damages or alleged damages hereunder, whether in
contract, tort or any other legal theory, is limited to, and shall not exceed,
an amount equal to the sum of the payments made to NetChemistry hereunder.
14.0 General Provisions
14.1 PUBLICITY
Any press release or other public communication issued by NEWAVE which either
explicitly or implicitly refers to NetChemistry shall require the prior written
approval of NetChemistry, which approval shall not be unreasonably withheld.
Any press release or other public communication issued by NetChemistry which
either explicitly or implicitly refers to NEWAVE shall require the prior written
approval of NEWAVE which approval shall not be unreasonably withheld.
14.2 NO AGENCY
The parties are independent contractors and shall have no power of authority to
assume or create any obligation or responsibility on behalf of each other. This
Agreement shall not be construed to create or imply any partnership, agency or
joint venture between NetChemistry and NEWAVE.
14.3 FORCE MAJEURE
Any delay in or failure of performance by either party under this Agreement
caused by any occurrence beyond the reasonable control of such party including,
but not limited to, acts of God, power outages and governmental restrictions
shall not be considered a breach of this Agreement and such performance shall be
excused for the number of days such occurrence reasonably prevents performance,
but in no case shall such excuse extend beyond 30 days.
14.4 WAIVER: AMENDMENTS
Any failure or delay by either party to enforce any right under this Agreement
shall not at any time constitute a waiver of such right or any other right,
shall not modify the rights or obligations of either party under this Agreement,
and shall not constitute a waiver of such right or any other right in the
future. This Agreement may only be modified, or any rights under it waived, by
a written document executed by both parties.
14.5 SEVERABILITY
If any of the provisions of this Agreement are held by to be unenforceable by a
court or arbitrator, the remaining portions of this Agreement shall remain in
full force and effect.
15.0 Monthly Services and Service Fees
Minimum Monthly Payment
NEWAVE will pay NetChemistry a minimum monthly fee of $5,000.00, which includes
the first 1,666 sites hosted at $3 each for the Newave Sales Web Sites.
Monthly Licensing of NEWAVE SALES web sites built using NetChemistry Software:
- NEWAVE will pay NetChemistry $3 per site per month on sites 1 - 16,666
- NEWAVE will pay NetChemistry $1 per site per month on sites 16,667+
Should NEWAVE default on the minimum monthly payment and/or the applicable per
site fees above, then all sites that are live will be billed at a flat rate of
$10 per site, per month with a $5,000 minimum payment.
At this pricing, NEWAVE will only be allowed to bundle Client Web Sites as part
of a their online distributor service sold at $9.95. At this pricing, Newave
Sales will be prohibited from selling Client Web Sites as a stand-alone product
to clients that are not purchasing their primary service pack or in selling or
marketing Web sites directly to clients.
If NEWAVE increases the sales price of its online distributor service for which
the system is provided, then the per site fees and minimum monthly payment paid
to NetChemistry by NEWAVE as stated above will increase at the same
corresponding percentage rate in which the sale price of the NEWAVE distributor
service increased. NEWAVE agrees to notify NetChemistry in writing two business
days prior to pricing changes.
16.0 Implementation Services, Fees and Payment Terms
16.1 SETUP FEE
Customization and Configuration of Portal Web Builder, Branded Manager
Console, Dynamic Portal and installation and testing of software onto server
purchased on behalf of NEWAVE.
- $ 7,000.00 total setup fee due and payable at contract signing
- $ 3,000.00 total purchase price of server - Compaq Proliant 6400R, quad
Xeon 000 xxx 0xx XXX'x, 0X xxx, 0 - 00.0x hard drives configured as raid 5
array.
(a) Operational Fees
- NetChemistry will xxxx NEWAVE every 1st day of the month for all client
Web sites hosted during each period. NetChemistry provides NEWAVE with a
password protected system to manage the status of every site built. By default,
all new sites are assigned a NEW state, it is NEWAVE's responsibility to change
the clients to either LIVE, DEMO or DELETE or to stipulate during the platform
setup process an automated process for this to occur.
- NetChemistry charges NEWAVE for all sites marked LIVE in the manager
console.
- All invoices are payable within fifteen (15) days of the invoice date.
Failure to comply with these payment terms may result in suspension of the
Branded System and Services, increased fees as stated in Section 15, and/or
cancellation of this agreement at the sole discretion of NetChemistry.
It is the responsibility of NEWAVE to manage the status of the sites in the
Branding Console of their system.
17.0 ADDITIONAL SERVICES
--------------------
17.1 CUSTOMER SERVICE
NetChemistry will not provide customer service to any of NEWAVE clients unless
agreed to on separate "Customer Service Agreement".
17.2 ADDITIONAL SERVICES
As an agent of NEWAVE, NetChemistry can provide the following services on an "as
needed" basis directly to NEWAVE at the following "wholesale" prices,
NetChemistry will not perform any services without authorization in writing from
NEWAVE.
Service Price
------- -----
Custom graphic headers for client sites $ 400.00 each
Custom graphic themes for the system $ 500.00 each
Custom programming for client sites $ 175.00 per hour
Custom graphic design and image manipulation $ 120.00 per hour
Data entry of products and images $ 10.00 each
Scanning pictures and making Web ready $ 10.00 each
30 minutes of phone consultation $ 100
17.3 PROFESSIONAL FEES
Any work performed by NetChemistry which is beyond the scope of the
implementation services outlined in this Agreement or the hosting and operating
services outlined herein, will be regarded as Professional Services, and NEWAVE
shall pay NetChemistry a fee for such services at a rate of $180.00 per hour for
programming and $125.00 per hour for graphic design services. No Professional
Services will be provided by NetChemistry without the prior written agreement of
NEWAVE as to the scope, deliverables, timing and work effort of such Services.
18. GENERAL PROVISIONS
-------------------
18.1. Entire Agreement. This Agreement constitutes the entire agreement
among the parties and supersedes all prior agreements and
understandings, both written and oral, with respect to the subject matter
hereof.
18.2 Dispute Resolution and Governing Law. The laws of the State of
California thereunder shall govern this Agreement and the
resolution of
the any dispute arising. The rules set forth for discovery under
the
California Code of Civil Procedure shall apply to any arbitration
proceeding instituted under this section.
18.3 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
18.4 Notices. All reports, communications, requests, notices or approvals
required or permitted by this Agreement to be given by one party to the other
shall be in writing and shall be deemed to be duly given if sent by telecopier,
delivered personally or if mailed by certified or registered mail, return
receipt requested, or by overnight mail delivery to the party concerned at its
address set forth below. Notices mailed by the U.S. Postal Service shall be
deemed to have been received five (5) days after being deposited in the United
States mail, or if by any other means upon receipt. Either party may change the
address to which notices and communications shall be sent, by written notice to
the other party, served in the manner described in this paragraph. Such notices
shall be sent as follows:
Newave , Inc.
000 X. Xxxxx Xxxxxx, #0000
Xxxx Xxxxx, Xx 00000
And:
NetChemistry, Inc.
0000 Xxxxxx, Xxxxx 000X
Xxxxxxx Xxxxx, XX 00000
Attn: Xxxxx Xxxxx
18.5 Headings.
The headings of the sections of this Agreement have been included only for
convenience, and shall not be deemed in any manner to modify or limit any of the
provisions of this Agreement, or be used in any manner in the interpretation of
this Agreement.
18.6 Prior Understanding. This Agreement contains the entire Agreement
between the parties to this Agreement with respect to the subject matter of this
Agreement, is intended as a complete and exclusive statement of the terms of
such Agreement, and supersedes all negotiations, understandings, agreements
representations and warranties, if any, with respect to such subject matter,
which precede the execution of this Agreement.
18.7 Partial Invalidity. Each provision of this Agreement shall be valid
and
enforced to the fullest extent permitted by law. If any provision of this
Agreement or the application of such provision to any person or circumstance
shall, to any extent, be invalid or unenforceable, the remainder of this
Agreement, or the application of such provision to persons or circumstances
other than those as to which it is held invalid or unenforceable, shall not be
affected by such invalidity or enforceability, unless such provision or such
application of such provision is essential to this Agreement.
18.8 Representations. The parties represent and acknowledge that in
executing
this Agreement they do no rely and have not relied upon any representation or
statement made by any of the parties or by any of the parties' agents, attorneys
or representatives with regard to the subject matter, basis or effect of this
Agreement or otherwise, other than those specifically stated in this written
Agreement.
18.9. Binding Agreement. This Agreement shall be binding upon the parties
and
upon their heirs, administrators, representatives, executors, successors and
assigns, and shall inure to the benefit of the parties and each of them and to
their heirs, administrators, representatives, executors, successors and assigns.
Assignee expressly warrants that he has not transferred to any person or entity
any rights, causes of action, or claims in this Agreement.
18.10. Plain Meaning. This Agreement shall be interpreted in accordance
with
the plain meaning of its terms and not strictly for or against any of the
parties hereto.
Agreed to and Accepted by:
Company: Newave, Inc. Company: NetChemistry, Inc.
Signature: /s/ Xxxxxxx Xxxx Signature: /s/ Xxxxx Xxxxxxxxxx
Name: Xxxxxxx Xxxx Name: Xxxxx Xxxxxxxxxx
Title: President Title: President
