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EXHIBIT 10.2
Confidential Materials omitted and filed separately with the Securities
and Exchange Commission. Asterisks denote omissions.
E-MAIL SERVICES AGREEMENT
This E-MAIL SERVICES AGREEMENT ("Agreement") is made and entered into effective
as of October 25, 1999 ("Effective Date") by and between Media Synergy Inc., an
Ontario corporation with an office at 260 King Street East, Building C Toronto,
Ontario CANADA M5A lK3 ("MSI"), and Impower Inc., with an office at One ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (Impower).
STATEMENT OF PURPOSE
The purpose of this Agreement is to define the terms and conditions under which
MSI will support ▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇'s interactive marketing efforts on behalf of
Impower. These efforts shall be limited solely to sending email messages to
third parties designated by Impower.
In consideration of the mutual promises, covenants and agreements hereinafter
set forth, and other good and valuable consideration, MSI and Impower hereby
agree as follows:
1. DEFINITIONS. As used in this Agreement:
1.1 "CONFIDENTIAL INFORMATION" means any confidential or proprietary
information, source code, software tools, designs, schematics, plans or any
other information relating to any research project, work in process, future
development, scientific, engineering, manufacturing, marketing or business plan
or financial or personnel matter relating to any party, its present or future
products, sales, suppliers, customers, employees, investors or business,
disclosed by one party to the other parties, whether in oral, written, graphic
or electronic form, and whose confidential or proprietary nature is identified
at the time of such disclosure.
1.2 "CONTENT" means any information or content contained in any
database, electronic newsletter, template, message, or other similar document
provided Impower to MSI.
1.3 "INTELLECTUAL PROPERTY RIGHTS" means all current and future
worldwide patents and other patent rights, utility models, copyrights, mask work
rights, moral rights, trade secrets, trademarks, trade names, service marks, and
all other intellectual property rights, including all applications and
registrations with respect thereto.
1.4 "MESSAGE" means an electronic mail message containing the Content
that is sent by MSI on behalf of Impower during the term of this Agreement.
1.5 "SERVICES" means the MSI services as set forth in EXHIBIT A
attached hereto.
2. SERVICES.
2.1 MSI OBLIGATIONS.
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Confidential Materials omitted and filed separately with the Securities
and Exchange Commission. Asterisks denote omissions.
2.1.1 MSI will provide all email sending and support Services related
to Impower Messages described on Exhibit A.
2.1.2 MSI will take all reasonable steps to ensure that URL links
contained within a Message delivered by MSI appear to originate from the
relevant domains. Impower will provide MSI with access to all appropriate
sub-domains for the sole purpose of assisting MSI with the foregoing;
IMPOWER OBLIGATIONS
2.1.3 Impower is responsible for obtaining content from B&▇.▇▇▇ at
least [**] hours prior to a scheduled push in one or more electronic or other
formats reasonably acceptable to MSI.
2.1.4 IMPOWER shall provide electronic lists of Message recipients at
least [**] hours prior to a scheduled push in one or more electronic formats
reasonably acceptable to MSI. MSI shall reserve the right to exclude Content as
required by law or best business practices in effect at that time.
2.1.5 Impower acknowledges that MSI sends only permission-based email
marketing messages. Impower will include "unsubscribe" information and
instructions in each Message. MSI reserves the right, at its sole discretion, to
refuse to send any Message if MSI reasonably determines that the email database
is not an "opt-in" database. If MSI, Impower or their respective Internet access
providers receive hostile email "flames" from recipients of Impower Message,
upon notification, Impower will contact such recipients and inform them why
their email addresses were included in the database as follows:
(i) Any spam complaints or inquiries from recipients about the origin
of the mailing list received by MSI will be forwarded to Impower who must in
turn respond to the complaint within 2 business days, or
(ii) If a spam complaint is also forwarded to MSI's Internet access
provider or to any blackhole list, Impower must respond to such spam complaint
within 4 hours of receipt of such complaint.
EXCEPTIONS
2.1.6 MSI reserves the right to control all facets of B&N email
dispatches during an MSI defined transition period. MSI will provide Impower
with 14 days notice prior to transferring B&N dispatch obligations.
3. PAYMENTS.
3.1 GENERAL. IMPOWERi shall pay MSI for the Services in accordance with
the pricing and any limitations set forth in EXHIBITS B.
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3.2 INVOICING AND PAYMENT. MSI will invoice Impower for amounts due in
connection with the Services on a monthly basis for ▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ and
▇▇▇▇▇▇ and ▇▇▇▇▇ Inc. Each invoice shall set forth the number of Messages sent
for each campaign, a list of other services provided, and a calculation of the
total amount due. All invoices shall be deemed MSI Confidential Information.
Impower shall pay all invoices within thirty (30) days of receipt. All overdue
amounts under this Agreement shall bear interest at the rate of 1.5% per month
or the maximum rate allowed by law, which ever is less.
3.3 TAXES. Impower agrees to pay, and to indemnify and hold MSI and its
service bureau partners harmless from, any sales, use, excise, import or export,
stamp, value added or similar tax or duty not based on MSI's net income,
property values, and business license taxes, as well as the collection or
withholding thereof, including penalties and interest, and all government permit
or license fees and all customs or similar fees, levied upon the performance of
the Services by MSI. The parties shall, at their own option and expense, have
the right to seek administrative relief, a ruling, judicial review or other
appropriate review (in a manner deemed appropriate by the party seeking such
determination), as to the applicability of any tax, penalty or interest, or to
protest any assessment and control any legal challenge to such assessment, but
shall be liable hereunder for any such amount ultimately determined to be due.
The parties agree to cooperate and provide reasonable documentation toward the
resolution of tax audits conducted by government taxing authorities relating to
purchases under this Agreement.
4. TRADEMARK LICENSE; OWNERSHIP OF TECHNOLOGY.
4.1 TRADEMARK LICENSE. Each party (the "Granting Party" and
▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇) hereby grants the other parties (the "Receiving Parties") a
limited license to use the Granting Party's applicable trademarks and service
marks in connection with the provision and support of the Services. The
Receiving Parties agree that such marks are the exclusive property of the
Granting Party and that all usage of such marks and any goodwill established by
the use of such marks shall inure to the benefit of the Granting Party and that
this Agreement does not confer any goodwill or other interests in such marks on
the Receiving Parties. The Receiving Parties will comply with the Granting
Party's standard trademark and service ▇▇▇▇ usage guidelines. Upon request by
the Granting Party, the Receiving Parties shall provide to the Granting Party,
at no cost to the Granting Party and prior to any use, examples of the Receiving
Parties' use of any of the Granting Party's marks. The Receiving Parties shall
modify or discontinue such use if requested by the Granting Party, except that
during the term of this Agreement, the Receiving Parties may re-use previously
approved uses without further approval. No party shall adopt or attempt to
register any trademark, trade name, or service ▇▇▇▇ that is confusingly similar
to any other party's marks.
4.2 MSI TECHNOLOGY. Impower acknowledges that the all technology used
to provide the Services and all Intellectual Property Rights thereto (the "MSI
Technology") is the sole and exclusive property of MSI or its licensers and that
MSI owns all proprietary rights, including patent, copyright, trade secret and
trademark rights in and to the MSI Technology. Impower has no rights in the
foregoing, and this Agreement does not transfer ownership of any of these
rights. Impower acknowledges and agrees that all enhancements and modifications
made to the MSI Technology as a result of the Services provided hereunder shall
belong exclusively to MSI.
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5. REPRESENTATIONS AND WARRANTIES.
5.1 POWER AND AUTHORITY; DUE ORGANIZATION. All parties represent and
warrant that they are duly organized, validly existing and in good standing in
its state of incorporation, and have full power and authority to enter into this
Agreement and to contract for the Services in accordance with the terms of this
Agreement.
5.2 IMPOWER CONTENT WARRANTY. Impower acknowledges that MSI is acting
as a passive conduit for the distribution of the Content and that MSI has no
obligation to review the Content to determine whether it may incur liability to
third parties. Impower acknowledges its sole responsibility for all Content and
Messages provided to MSI hereunder. Without limiting the foregoing, Impower
represents and warrants that all Content and Messages (a) shall not infringe any
third party's copyright, patent, trademark, trade secret or other proprietary
rights or rights of publicity or privacy; (b) shall not violate any law,
statute, ordinance or regulation (including without limitation the laws and
regulations governing export control, unfair competition, antidiscrimination or
false advertising); (c) shall not be defamatory, trade libelous, unlawfully
threatening or unlawfully harassing; (d) shall not be obscene or contain child
pornography or, if otherwise pornographic or indecent, shall be distributed only
to people legally permitted to receive such content; (e) shall not contain any
viruses, trojan horses, worms, time bombs, cancelbots or other computer
programming routines that are intended to damage, detrimentally interfere with,
surreptitiously intercept or expropriate any system, data or personal
information, (f) shall not contain any deceptive information which would imply
affiliation or sponsorship of any entity or person other than ▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
or its advertisers without the written consent of such entity or person, or (f)
shall not be delivered to anyone who has not given Impower or ▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
permission to send email communications to them.
5.3 YEAR 2000. MSI warrants that the Services include or shall include
by the time the Services are rendered, design and performance capabilities so
that prior to, during, and after the calendar year 2000, the Services will not
malfunction, produce invalid or incorrect results or abnormally cease to
function because of the year 2000 date change. Such design and performance
capabilities shall include without limitation the ability to recognize the
century and to manage and manipulate data involving dates, including single
century and multi-century formulas and date values, without resulting in the
generation of incorrect values involving such dates or causing an abnormal
ending; date data interfaces with functionalities and data fields that indicate
the century; and data-related functions that indicate the century. In the event
of any breach by MSI of the foregoing warranty, Impower's sole and exclusive
remedy shall be to have MSI use its commercially reasonable efforts to correct
such systems and/or re-perform any affected Services at no additional charge.
5.4 NETWORK LIMITATIONS. MSI and its partners shall use their
commercially reasonable efforts to ensure that all Messages are sent on a timely
basis. Impower acknowledges that computer networks, including the public
Internet, are inherently unpredictable. Notwithstanding any other provision of
this Agreement, MSI will not be in breach of their obligations to provide the
Services hereunder if their commercially reasonable efforts are not sufficient
to successfully transmit one or more Messages hereunder.
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6. INDEMNITY.
6.1 MSI INDEMNIFICATION.
6.1.1 GENERAL. MSI will indemnify Impower and its officers,
directors and employees for, and defend and hold them harmless against, any
loss, expense, damages or liability, including, without limitation, any
reasonable attorneys' and expert witness fees, arising from any claim, suit,
action or proceeding, ("Claims") that the Service infringes or misappropriates
any third party's United States copyrights or trade secrets recognized as such
under the Uniform Trade Secrets Act, provided that MSI is given prompt written
notice of the existence of each such Claim and are given the right to control
the investigation, preparation, defense and settlement of such Claim.
6.1.2 IMPOWER REMEDIES. Following notice of an infringement Claim,
MSI may, at its option and expense and in addition to any indemnity provided
under Section 6.1.1, either procure the right to continue to offer the Services,
or to replace or modify the Services, as applicable, to make them
non-infringing. If MSI determines that neither of the foregoing alternatives is
feasible, MSI may terminate this Agreement and the availability of the Services
and neither party shall have any further obligation or liability to the other
party in connection with this Agreement.
6.1.3 EXCEPTIONS. MSI shall have no liability to Impower or any
other third party for Claims (a) based on any Content or Message; or (b) to the
extent based on Impower's use of the Service following its receipt of written
notice of the existence of a Claim and MSI's election to terminate the Agreement
under Section 6.1.2.
6.1.4 DISCLAIMER. THE FOREGOING SHALL BE IMPOWER'S SOLE AND
EXCLUSIVE REMEDIES AGAINST MSI FOR ANY CLAIM OF INFRINGEMENT OF ANY INTELLECTUAL
PROPERTY RIGHTS.
6.2 IMPOWER INDEMNIFICATION.
6.2.1 GENERAL. Impower agrees to defend, indemnify and hold
harmless MSI and its directors, officers, agents, and employees from any and all
losses, costs, liabilities or expenses (including without limitation reasonable
attorney's fees) incurred or arising from any claim by a third party arising out
of a breach of the representations contained in Section 5.2 hereof or otherwise
relating to MSI's distribution of Messages and/or Content.
6.3 MUTUAL INDEMNIFICATION. Impower, on the one hand, and MSI,
on the other, agree to defend, indemnify and hold one another and each
subscriber harmless from and against any damages, liabilities, claims, costs and
expenses (including reasonable attorneys' fees) to the extent arising out of or
resulting from the gross negligence or willful misconduct of the indemnifying
party. If the indemnifying party shall, within 30 days after notice, fail to
accept defense, the party seeking indemnification shall have the right, but not
the obligation, to undertake the defense of, and to compromise or settle any
claims on behalf of, for the account of, and at the risk of the indemnifying
party. If the claims cannot by their nature be defended solely by one party, the
other party shall make available all information and assistance that may
reasonably be requested, regardless of any obligation to indemnify hereunder.
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7. LIMITATION OF LIABILITY.
7.1 DISCLAIMER. EXCEPT FOR CLAIMS ARISING UNDER SECTION 8 HEREOF, NO
PARTY WILL BE LIABLE TO ANY OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL,
EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING LOST
PROFITS, LOSS OF DATA, LOSS OF USE AND THE LIKE, ARISING OUT OF OR RELATING TO
THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE.
7.2 LIABILITY LIMIT. IN NO EVENT WILL MSI LIABILITY TO IMPOWER IN
CONNECTION WITH OR UNDER THIS AGREEMENT EXCEED AN AMOUNT EQUAL TO THE AMOUNTS
RECEIVED BY MSI FROM IMPOWER HEREUNDER. THIS LIMITATION IS CUMULATIVE, WITH ALL
PAYMENTS FOR ALL LIABILITIES UNDER OR IN CONNECTION WITH THE AGREEMENT BEING
AGGREGATED TO DETERMINE SATISFACTION OF THE LIMIT. THE EXISTENCE OF ONE OR MORE
CLAIMS WILL NOT ENLARGE THE LIMIT.
8. CONFIDENTIALITY.
8.1 NON-DISCLOSURE. All parties agree that they will not make use of,
disseminate, or in any way disclose any other party's Confidential Information
to any person, firm or business, except as authorized by this Agreement and to
the extent necessary for performance of this Agreement. All parties agree that
they will disclose Confidential Information only to those of their employees and
contractors who need to know such information and who have previously agreed to
be bound by the terms and conditions of this Agreement. All parties agree that
they will treat all Confidential Information of the other parties with the same
degree of care as they accord their own confidential information; all parties
represent that they exercise reasonable care to protect their own confidential
information.
8.2 EXCEPTIONS. A receiving party's obligations with respect to any
portion of Confidential Information will terminate when the receiving party can
demonstrate that (a) the Confidential Information was in the public domain at
the time it was communicated to the receiving party by the disclosing party; (b)
it entered the public domain subsequent to the time it was communicated to the
receiving party by the disclosing party through no fault of the receiving party;
(c) it was in the receiving party's possession free of any obligation of
confidence at the time it was communicated to the receiving party by the
disclosing party; (d) it was rightfully in the receiving party's possession free
of any obligation of confidence at or subsequent to the time it was communicated
to the receiving party by the disclosing party; (e) it was developed by
employees or agents of the receiving party independently of and without
reference to any information communicated to the receiving party by the
disclosing party; or (f) the disclosure was in response to a valid order by a
court or other governmental body, was otherwise required by law, or was
necessary to establish the rights of either party under this Agreement. Impower
agrees that MSI may disclose the existence and terms of the Agreement to actual
and prospective investors and their counsel and advisors in connection with any
private placement of MSI securities, in connection with a merger, acquisition or
sale of all or substantially all of MSI's assets, or in connection with MSI's
initial public offering.
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9. TERM AND TERMINATION.
9.1 TERM. The term of this Agreement will commence on the Effective
Date and will continue for a period of two (2) years, unless terminated in
accordance with the provisions hereof Either party may terminate this agreement
without cause as long as written notification has been provided 90 days in
advance.
9.2 TERMINATION FOR CAUSE. Any party may terminate this Agreement
immediately upon written notice:
9.2.1 If another party breaches a material term or condition of
the Agreement and does not cure such breach (or commence a cure in a manner
satisfactory to the non-breaching party) within thirty (30) days after written
notice of such breach.
9.2.2 If any party ceases to do business, or otherwise terminates
its business operations, except as a result of an assignment permitted under
Section 10.8 below; or
9.2.3 If any party fails to promptly secure or renew any license,
registration, permit, authorization or approval for the conduct of its business
in the manner contemplated by this Agreement or if any such license,
registration, permit, authorization or approval is revoked or suspended and not
reinstated within sixty (60) days; or
9.2.4 Effective immediately and without notice if any party
becomes insolvent or seeks protection under any bankruptcy, receivership, trust
deed, creditors arrangement, composition or comparable proceeding, or if any
such proceeding is instituted against any other party (and not dismissed within
ninety (90) days).
9.3 RIGHTS UPON EXPIRATION OR TERMINATION. Upon termination of this
Agreement, each party will deliver to all other parties Confidential Information
of the other parties, and an authorized officer of each party will certify in
writing that it has done so. The parties will cooperate to migrate subscribers
to an alternative service if Impower so chooses; provided, however, that MSI has
received all amounts due hereunder.
9.4 SURVIVAL. In the event of the termination or expiration of this
Agreement, (a) any accrued payment obligations, (b) any right of action for
breach of this Agreement prior to termination and (c) all the rights and
obligations pursuant to Section 1 (Definitions), 3 (Invoicing and Payment), 4.1
(Ownership), 5 (Representations and Warranties), 6 (Indemnification), 7
(Limitation of Liability), 8 (Confidentiality), 9 (Term and Termination) and 10
(General) will remain in effect.
10. GENERAL.
10.1 NO AGENCY. Each party will in all matters relating to this
Agreement act as an independent contractor. No party will have authority and
will not represent that it has any authority to assume or create any obligation,
express or implied, on behalf of any other, or to represent any other party as
an agent, employee or in any other capacity. Neither execution nor performance
of this Agreement will be construed to have established any agency, joint
venture or partnership.
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10.2 FORCE MAJEURE. Any delay in or failure by MSI or Impower in
performance of this Agreement shall be excused if and to the extent that such
delay or failure is caused by occurrences beyond the reasonable control of the
affected party, including, but not limited to, decrees or restraints of
governments, acts of God, strikes or other labor disturbances, war or sabotage,
provided that, if a Force Majeure Event occurs for more than twenty-four (24)
hours, the affected party shall promptly provide written or faxed notice thereof
to the other parties, which notice shall include a description of the Force
Majeure Event and the affected party's best estimate of the length of time such
Force Majeure Event will delay or prevent performance of the Agreement.
10.3 NOTICES. All notices, demands, consents, approvals or other
communications permitted or required hereunder shall not be effective unless the
same shall be in writing and delivered, or sent postage prepaid, by first class
mail, with or without return receipt requested, or sent by an local or overnight
courier service with tracking capabilities or faxed to the parties at their
addresses shown below, and shall be deemed served when so delivered or deposited
in the United States Postal Service, courier service and/or upon receipt of the
fax. Any party may designate by notice a new or different address, from time to
time in accordance herewith.
10.4 NO SOLICITATION. MSI agrees that it will not solicit or attempt
to hire any employee from Impower, while that employee is on the payroll of
Impower. If an employee leaves Impower, MSI may not solicit that employee for
hire for a period of twelve months after an employee's resignation date. Impower
agrees that it will not solicit or attempt to hire any employee from MSI, while
that employee is on the payroll of MSI. If an employee leaves MSI, Impower may
not solicit that employee for hire for a period of twelve months after an
employee's resignation date. Further, MSI agrees it will not solicit or approach
any client brought into contact with MSI through the efforts of Impower without
the express written consent of Impower. In turn, Impower agrees it will not
solicit or approach any client brought into contact with Impower through the
efforts of MSI without the express written consent of Impower.
Media Synergy
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ M5A IK3
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Impower Inc.
One ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
10.4 ARBITRATION. Any dispute, claim or controversy arising out of,
connected with or relating to this Agreement shall be resolved by binding
arbitration administered and conducted under the Commercial Arbitration Rules of
the American Arbitration Association and Title 9 of the United States Code. The
prevailing party in any judicial action or arbitration shall be entitled to
reimbursement from the other parties for costs; filing, fees; arbitration filing
fees; reasonable
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pretrial, trial and appellate attorneys' fees; witness fees; expert fees;
arbitration panel fees and travel fees. A judgment upon the arbitration award
may be entered in any court having jurisdiction. Any arbitration "hearing shall
take place in New York, New York. Nothing in this Section, however, shall
prevent any other party from seeking equitable relief from a court of competent
jurisdiction for ant other party's breach of its confidentiality obligations or
infringement of the aggrieved party's intellectual property rights.
10.5 GOVERNING LAW. This Agreement will be governed in all respects by
the laws of the State of New York excluding the application of its conflict of
laws rules.
10.6 WAIVER. The failure of any party to require performance by any
other party of any provision hereof will not affect the full right to require
such performance at any time thereafter; nor will the waiver by any party of a
breach of any provision hereof be taken or held to be a waiver of the provision
itself.
10.7 SEVERABILITY. In the event that any provision of this Agreement
is found by a court or other body of competent jurisdiction to be unenforceable
or invalid under any applicable law such unenforceability or invalidity will not
render this Agreement unenforceable or invalid as a whole, and, in such event,
such provision will be changed and interpreted so as to best accomplish the
objectives of such unenforceable or invalid provision within the limits of
applicable law or applicable court decisions.
10.8 ASSIGNMENT. No party will assign any rights or obligations
arising under this Agreement without the prior written consent of the others,
provided that either party may assign this Agreement without consent in the
context of a merger, acquisition or sale of all or substantially all of its
assets. Subject to the above restriction on assignment, this Agreement will
inure to the benefit of and bind the successors and assigns of the parties.
10.9 ENTIRE AGREEMENT. This Agreement and the Exhibits hereto
constitute the entire agreement between the parties with respect to the subject
matter hereof. This Agreement supersedes, and the terms of this Agreement
govern, any prior or collateral agreements with respect to the subject matter
hereof with the exception of any prior confidentiality agreements between the
parties. This Agreement may only be changed by mutual, written agreement of
authorized representatives of the parties.
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IN WITNESS WHEREOF, the undersigned have caused this E-Mail Services
Agreement to be executed by their respective authorized representatives. This
Agreement may be executed in counterparts, each of which will be deemed an
original, but all of which together will constitute one and the same original.
Media Synergy Impower Inc. Media
/s/ ▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------- --------------------------------------
Authorized Signature Authorized Signature
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------- --------------------------------------
Printed Name Printed Name
Director President
-------------------------------- --------------------------------------
Title Title
EXHIBITS:
Exhibit A: Description of Services Provided
Exhibit B: Services and Deployment Fees
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Confidential Materials omitted and filed separately with the Securities
and Exchange Commission. Asterisks denote omissions.
EXHIBIT A
DESCRIPTION OF SERVICES PROVIDED
DATA MERGING
MSI will merge ▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇'s [**] database with [**] database and create
a consolidated database. The consolidated database will contain all unique data
from the [**] database and the [**] database.
DATA MAINTENANCE
MSIi will maintain all customer [**] email preference and summarized online
transactional history provided by ▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇. A [**] data transfer
system between ▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ and Impower or its partners will be initiated
to update the ▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ database with current customer data.
CUSTOMER UNSUBSCRIBE/[**] CENTER
MSI will assume the maintenance of ▇▇▇▇▇▇ and Noble Inc. customer unsubscribes
and change of preferences through the [**] to be [**]. This center will enable
▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇'s website visitors to unsubscribe from ▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
communications. This center will automatically send updates to the
▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ database [**].
CUSTOMER CHANGE OF ADDRESS CENTER
MSI will assume the maintenance of a ▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ customer change of
address center to be [**]. This center will enable ▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇'s website
visitors to change their preferred email address for the receipt of email
communications from ▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.
UNSUBSCRIBE/UNDELIVERABLE HANDLING
MSI and its partners will assume the handling of all ▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ customer
unsubscribe requests and undeliverable email resulting from email campaigns
executed by Impower on behalf of ▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.
REPORTING
MSI will report email campaign statistics as they currently reside in the Flo
Network to ▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ on a real time basis.
E-MAIL DISPATCH
MSI will provide the software and network facilities to Impower for
▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ email deployment. After a MSI defined transition period
Impower will be responsible for campaign setup, campaign deployment, and
campaign tracking and reporting for ▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.
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12
Confidential Materials omitted and filed separately with the Securities
and Exchange Commission. Asterisks denote omissions.
EXHIBIT B
SERVICES AND DEPLOYMENT FEES
INTERACTIVE MESSAGING PROCESSING SERVICES
Basic Fee Per Outbound Email Messages Sent: [**]
RUSH FEES
Charge: [**] surcharge*
* standard e-mail message delivery schedules for ▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ are:
- data submitted at least [**] business [**] prior to e-mail campaign
execution
- content submitted at least [**] business [**] prior to e-mail
campaign execution
If ▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ does not submit data and content within the above agreed
deadlines, then MSI will impose a [**] surcharge for the execution of campaigns
outside of the standard pricing. The fee will only apply if Impower and MSI are
able to meet ▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇'s delivery goals. The ability to meet
▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇'s delivery goals is at the discretion of both MSI and Impower
when data and content is not received within the above-agreed deadlines.
OTHER SERVICES
HTML Development [**]
Database Development [**]
C++/Java Software Development [**]
Other Services Quoted Upon Request
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13
Confidential Materials omitted and filed separately with the Securities
and Exchange Commission. Asterisks denote omissions.
DEFINITIONS OF SERVICES AND TERMS
1. BROADCAST MESSAGE: Text only and contains no instructions for
personalization, placement of text or graphics.
2. PERSONALIZED MESSAGE: Personalized header, URLs, and anything in the
body of the Message ([**]) personalized to the recipient.
3. ADVANCED RESPONSE HANDLING:
Un-subscribe - Upon receipt of an email requesting to un-subscribe,
[**] code the customer record within the ▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ database.
Bounce or Undeliverable - Upon receipt of an undeliverable email
message, [**] code the customer record within the ▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
database.
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14
Confidential Materials omitted and filed separately with the Securities
and Exchange Commission. Asterisks denote omissions.
.
DISCOUNT SCHEDULE OF
INTERACTIVE MESSAGING PROCESSING SERVICES*
MSI and Impower agree to a per thousand e-mail messaging cost of [**] for
▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ and ▇▇▇▇▇▇ and ▇▇▇▇▇ Inc. It is understood that the [**] fee
will be [**]. This pricing is based upon ▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇'s expected monthly
minimum volume of [**] e-mail messages per month and applies to each partner
service bureau. By [**], all parties agree to evaluate ▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇'s
on-going volume to determine if ▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇'s mailing volume meets the
expected minimum. If ▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇'s mailing volume is not within the
minimum to qualify for the agreed-to cost per thousand for e-mail delivery, then
all parties agree to adjust the per thousand delivery rate to reflect the
pricing in the table below.
-------------------------------------------------------------------------------
Total Monthly Messages Transmitted Transmission Rate
--------------------------------------------------------------------------------
[**] [**]
--------------------------------------------------------------------------------
[**] [**]
--------------------------------------------------------------------------------
[**] [**]
--------------------------------------------------------------------------------
[**] [**]
--------------------------------------------------------------------------------
[**] [**]
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