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Exhibit 10.15
RICH MEDIA DIRECT SERVICES AGREEMENT
This agreement is made between High Speed Net Solutions, Inc., a
Florida corporation ("HSNS"), and LearnKey Inc., a Utah corporation
("Client").
PRELIMINARY STATEMENT. HSNS is engaged in the business of providing rich
media direct marketing services and content delivery services over the Internet.
Client desires to engage HSNS to perform the services for Client set forth on
Schedule A (the "Services").
SERVICES. Client hereby engages HSNS to provide the Services. HSNS
agrees to provide the Services described on Schedule A. The parties may, from
time to time, agree that additional services will be provided. Any additional
services requested must be described in a Schedule signed by the parties and
which recites by its terms that it is incorporated into this Agreement. Each
Schedule will be numbered sequentially as Schedule A-1 (attached), Schedule A-2,
etc. Unless expressly stated in a Schedule, the terms of a Schedule will not
amend or supersede the terms of another Schedule. Reference to Schedule A in
this Agreement means each Schedule which, together with this Agreement, forms a
separate contract for services.
CLIENT PROVIDED MATERIALS. Within the time periods set forth in
Schedule A, Client shall deliver to HSNS, in such form and on such media which
HSNS may reasonably request (i) all videos which Client wishes HSNS to use in
providing the Services (the "Videos") and (ii) lists of persons or companies
containing all e-mail addresses that Client wishes HSNS to use in providing the
Services (the "Customer Lists") (the Videos and the Customer Lists are
collectively referred to as the "Client Provided Materials"). Upon delivery of
the Client Provided Materials to HSNS, Client shall be deemed hereunder to have
granted to HSNS a license to copy, scan, convert, edit, modify or do such other
things to or with the Client Provided Materials as HSNS may reasonably determine
to be necessary to provide the Services.
PROPRIETARY OWNERSHIP.
(a) HSNS acknowledges and agrees that: (i) Client Provided Materials, and
(ii) multimedia content and/or text that may be developed by HSNS for Client as
part of the Services in connection with a specific set of e-mails (together with
Client Provided Materials, "Client Materials"), shall be considered owned by the
Client. HSNS claims no ownership rights in or to any of the Client Materials
other than pursuant to the license granted herein.
(b) Client acknowledges and agrees that such media e-mails or other
deliverables under this Agreement may contain or be created through use of
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software and other materials used by or useful to HSNS in its business
generally, including without limitation various product development or message
delivery tools, which are not part of the information content developed for
Client (the "HSNS Materials").
(c) Client acknowledges and agrees that all ownership rights in and to the
HSNS Materials shall be the sole and exclusive proprietary property of HSNS.
COMMISSION; AUDIT.
(a) Client shall pay HSNS the commission described on Schedule A.
(b) At HSNS' option, once per quarter annually, HSNS or an agent or
accounting firm chosen by HSNS shall be provided reasonable access during normal
business hours to the records of Client for purposes of audit of commission due.
Records sufficient to verify the revenue received shall be maintained by Client
and made available for audit.
HSNS WARRANTIES.
(a) HSNS represents and warrants to the Client that it has the authority
to enter into this Agreement and to perform the obligations of HSNS under this
Agreement and Schedule A.
(b) EXCEPT AS EXPRESSLY PROVIDED HEREIN, HSNS MAKES NO
REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO
THE SERVICES PROVIDED BY OR ON BEHALF OF HSNS, INCLUDING WITHOUT LIMITATION ANY
WARRANTY OF MERCHANTABILITY OR FITNESS OF ANY SERVICES FOR A PARTICULAR PURPOSE
AND HSNS HEREBY EXPRESSLY DISCLAIMS THE SAME.
CLIENT'S WARRANTIES. Client warrants that (i) use of the Client
Provided Materials as provided in this Agreement will not infringe any patent,
copyright, or other proprietary right of any person; (ii) the Client Provided
Materials are not defamatory, do not infringe the right of privacy or publicity,
and do not misuse or misappropriate confidential information of any person;
(iii) Client has all necessary proprietary rights to provide the Client Provided
Materials and to grant the rights as provided herein; and (iv) none of the
Client Provided Materials requires for their use as provided herein the license
or grant of any other right from any other person, which grant or right has not
already been obtained by Client. Client agrees to defend, indemnify and hold
harmless HSNS, its affiliates and their respective present, former and future
officers, managers, members, employees and
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agents, and their respective heirs, legal representatives, successors and
assigns (collectively the "HSNS Indemnitees"), from and against any and all
losses, costs, liabilities or expenses (including, without limitation,
attorneys' fees) which any of the HSNS Indemnitees may suffer, incur or sustain
resulting from or arising out of any misrepresentation, breach of warranty or
nonfulfillment of any covenant or agreement contained in this Section 6.
CONFIDENTIAL INFORMATION. Each party agrees that it will not
disclose to any person any Confidential Information of the other party, or use
any Confidential Information of the other party, except as expressly provided
for under this Agreement. For purposes of this Agreement, the term "Confidential
Information" means all technical, business and other information of a party and
its affiliates that derives economic value, actual or potential, from not being
generally known to others, including, without limitation, technical or
non-technical data, compilations, price and cost information, technical
information, financial information, and business plans. For purposes of this
Agreement, the HSNS Materials shall be deemed the Confidential Information of
HSNS, except to the extent made public by HSNS.
TERMINATION.
(a) Either party shall have the right to terminate this Agreement
immediately upon the occurrence of any one or more of the following events: (i)
breach by the other party of any material term or provision of this Agreement,
and if capable of cure, failure to cure within 45 days of written notice thereof
by the non-breaching party; (ii) the other party becomes insolvent or makes any
assignment for the benefit of its creditors; (iii) any proceeding is instituted
by or against the other party under any bankruptcy or similar laws for the
relief of debtors; or (iv) the appointment of any trustee or receiver for any of
the other party's assets.
(b) HSNS shall have the right to terminate this Agreement immediately upon
the failure of Client to pay any amounts owed hereunder when due.
(c) Client's obligation to pay all amounts due to HSNS under this
Agreement, and the provisions of Sections 5, 6, 7, 9 and 10 of this Agreement,
shall survive the termination or expiration of this Agreement for any cause or
reason whatsoever.
9. LIMITATION OF LIABILITY. In no event shall the aggregate liability of
HSNS in connection with this Agreement for any and all loss, claim, damage or
liability, whether in contract or in tort, or under any other theory (including,
without limitation, negligence and strict liability), exceed the amounts paid to
HSNS pursuant to this Agreement. UNDER NO CIRCUMSTANCES SHALL HSNS BE LIABLE FOR
ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES SUFFERED BY CLIENT OR
ANY OTHER PARTY
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IN CONNECTION WITH THE SERVICES PROVIDED HEREUNDER, REGARDLESS OF WHETHER OR NOT
SUCH PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. MISCELLANEOUS.
(a) Force Majeure. Neither party shall be liable for any default or delay
in the performance of any of its obligations under this Agreement (other than
failure to make payments due hereunder) if such default or delay is caused,
directly or indirectly by forces beyond such party's control, including, without
limitation, fire, flood, acts of God, labor disputes, accidents, interruptions
of transportation or communications, supply shortages.
(b) Independent Contractor. The parties acknowledge that the relationship
of HSNS to Client is that of an independent contractor, and that nothing
contained in this Agreement shall be construed to place Client and HSNS in the
relationship of principal and agent, master and servant, partners or joint
venturers. HSNS shall not have, expressly or by implication, or represent itself
as having, any authority to make contracts or enter into any agreements in the
name of Client, or to obligate or bind Client in any manner whatsoever.
(c) Governing Law. The validity and effect of this Agreement shall be
governed by and construed and enforced in accordance with the laws of the State
of North Carolina.
(d) Headings. The headings as to contents of particular articles and
sections are inserted only for convenience and are in no way to be construed as
part of this Agreement.
(e) Amendments. This Agreement shall not be modified or amended except by
another agreement in writing executed by the parties hereto.
(f) Severability. All rights and restrictions contained in this Agreement
may be exercised and shall be applicable and binding only to the extent that
they do not violate any applicable laws and are intended to be limited to the
extent necessary so that they will not render this Agreement illegal, invalid or
unenforceable. If any provision or portion of any provision of this Agreement
shall be held to be illegal, invalid or unenforceable by a court of competent
jurisdiction, it is the intention of the parties that the remaining provisions
or portions thereof shall constitute their agreement with respect to the subject
matter hereof, and all such remaining provisions or portions thereof shall
remain in full force and effect.
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(g) Notices. All notices and demands required or contemplated hereunder by
one party to the other shall be in writing and shall be deemed to have been duly
made and given upon date of delivery if delivered in person or by an overnight
delivery or postal service, upon receipt if delivered by facsimile the receipt
of which is confirmed by the recipient, or upon the expiration of five days
after the date of posting if mailed by certified mail, postage prepaid, to the
addresses or facsimile numbers set forth below their signatures. Either party
may change its address or facsimile number for the purpose of this Agreement by
notice in writing to the other party as provided herein.
(h) Waiver. No failure or delay on the part of any party hereto to
exercise any right or remedy hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any right or remedy by any party
preclude any other or further exercise thereof or the exercise of any other
right or remedy. No express waiver or assent by any party hereto to any breach
of or default in any term or condition of this Agreement shall constitute a
waiver of or an assent to any succeeding breach of or default in the same or any
other term or condition hereof.
(i) Counterparts. Any number of counterparts of this Agreement may be
signed and delivered, each of which will be considered an original and all of
which, together, will constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized representatives, on the date and year first
above written.
Learnkey Inc.
------------------------------------ High Speed Net Solutions, Inc.
By: /s/ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇
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Name: ▇. ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇▇▇
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Title: EVP Title: President & CEO
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Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
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Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇ Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
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E-mail Address: (illegible) E-mail Address: (illegible)
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