{"id":42209,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/cross-promotion-agreement-24-7-media-inc-and-techwave-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"cross-promotion-agreement-24-7-media-inc-and-techwave-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/cross-promotion-agreement-24-7-media-inc-and-techwave-inc.html","title":{"rendered":"Cross Promotion Agreement &#8211; 24\/7 Media Inc. and TechWave Inc."},"content":{"rendered":"<pre>                            CROSS PROMOTION AGREEMENT\n\n\n        THIS CROSS PROMOTION AGREEMENT, dated April 5, 1999 (the 'Agreement'),\nis made between 24\/7 Media, Inc. ('24\/7'), a Delaware corporation with an\naddress at 1250 Broadway, 27th floor, New York, NY 10001 and TechWave Inc.\n('TW'), a Washington corporation with an address at 411 First Avenue South,\nSuite 200 N, Seattle, WA 98104.\n\n        WHEREAS, 24\/7 operates networks of Internet Web sites (collectively, the\n'24\/7 Network') for which it solicits advertising, promotions and direct\nmarketing to generate revenues for the Web sites affiliated with the 24\/7\nNetwork (the '24\/7 Affiliates'), places advertising, promotions and direct\nmarketing on the 24\/7 Network for advertisers and agencies (the '24\/7\nAdvertisers') and, through its Sift, Inc. subsidiary, offers customer\nrelationship management and other e-mail based services (collectively, the '24\/7\nServices');\n\n        WHEREAS, TW currently provides e-commerce technology and enabling\nservices; online store development, creative design services, product\nfulfillment and online sales and marketing to third parties ('TW Affiliates')\nfor the establishment and promotion of transactional capabilities through the\nInternet (the 'TW Services');\n\n        WHEREAS, 24\/7 and TW wish to cross promote each other's services to\ntheir customer bases on a most favored nation basis and to jointly promote their\nservices to prospective new customers; for purposes of this Agreement, 'Most\nFavored Nation' shall mean that services are offered to a party on terms and\nconditions, including price, that are at least as favorable as those offered to\nother parties that are comparable in size and scope;\n\n        NOW, THEREFORE, in consideration of the foregoing, the mutual covenants\nand agreements contained herein and for other good and valuable consideration,\nthe receipt and sufficiency of which are hereby acknowledged, 24\/7, and TW agree\nas follows:\n\n1.      Promotion and Provision of TW Services\n\n        A. 24\/7 agrees to promote to 24\/7 Affiliates the TW Services. 24\/7 shall\nmake an initial direct marketing solicitation of the 24\/7 Affiliates and shall\nprovide reasonable additional support as may be requested by TW from time to\ntime;\n\n        B. TW agrees to provide special incentives to 24\/7 Affiliates in order\nto induce them to avail themselves of the TW Services; these special incentives\nwill be mutually agreed upon by both 24\/7 and TW and are contemplated to be\ndiscounts and similar arrangements;\n\n        C. TW shall be solely responsible for development of marketing materials\nrelating to TW Services.\n\n        D. 24\/7 shall be responsible for the mailing costs associated with the\nTW Services as it is offered to 24\/7 Affiliates.\n\n        E. TW shall be solely responsible for providing all TW Services,\nincluding customer service in respect of the TW Services;\n\n        F. TW shall be deemed the seller of TW Services pursuant hereto and\nshall be solely responsible for collecting and remitting to the appropriate\njurisdiction any and all\n\n                                       1\n\n\napplicable sales or use or other taxes and shall fully indemnify and hold 24\/7\nharmless for any sales, use or similar transaction taxes that are assessed,\nwhether against 24\/7 or TW, with respect to the sale of TW Services;\n\n        G. TW agrees to pay 24\/7 20% of all gross revenue generated and\ncollected by TW during the term of this Agreement from the sale of TW Services\nto 24\/7 Affiliates and 24\/7 Advertisers. TW agrees to provide 24\/7 within 45\ndays after the end of each month with (i) a report showing all 24\/7 Affiliates\nfor which TW provided TW services in the prior month and the revenue generated\nfrom such TW Services and (ii) payment equal to 24\/7's appropriate share of all\nrevenue collected in the prior month.\n\n        H. The revenue sharing payment contemplated by Section 1.G. shall apply\nonly in respect of existing and after acquired 24\/7 Affiliates and 24\/7\nAdvertisers who are not currently also TW Affiliates at the time they are\nacquired by 24\/7. A list of all current 24\/7 Affiliates is attached hereto as\nExhibit 1. A list of all current TW Affiliates is attached hereto as Exhibit 2.\nTW agrees not to solicit any current or future 24\/7 Affiliate or 24\/7 Advertiser\nexcept pursuant to a joint promotion prepared by both parties pursuant hereto.\n\n\n2.      Promotion and Provision of 24\/7 Services\n\n        A. TW agrees to promote to TW Affiliates the 24\/7 Services. TW shall\nmake an initial direct marketing solicitation of the TW Affiliates and shall\nprovide reasonable additional support as may be requested by 24\/7 from time to\ntime;\n\n        B. 24\/7 agrees to provide special incentives to TW Affiliates in order\nto induce them to avail themselves of the 24\/7 Services; these special\nincentives will be mutually agreed upon by both 24\/7 and TW and are contemplated\nto be discounts and similar arrangements.\n\n        C. 24\/7 shall be solely responsible for development of marketing\nmaterials relating to 24\/7 Services.\n\n        D. TW shall be responsible for the mailing costs associated with the\n24\/7 Services as it is offered to TW Affiliates.\n\n        E. 24\/7 shall be solely responsible for providing all 24\/7 Services,\nincluding customer service in respect of the 24\/7 Services;\n\n        F. 24\/7 shall be deemed the seller of 24\/7 Services pursuant hereto and\nshall be solely responsible for collecting and remitting to the appropriate\njurisdiction any and all applicable sales or use or other taxes and shall fully\nindemnify and hold TW harmless for any sales, use or similar transaction taxes\nthat are assessed, whether against 24\/7 or TW, with respect to the sale of 24\/7\nServices;\n\n        G. 24\/7 agrees to pay TW a percentage of all revenue generated and\ncollected during the term of this Agreement from the sale of 24\/7 Services to TW\nAffiliates as follows: (i) E-mail services - 15% of gross revenue; (ii)\nadvertising and sponsorship placements - 10% of gross advertising spending (only\nin instances where no advertising agency commission is earned) per Affiliate;\n(iii) Sale of product by TW Affiliates in transactional banners or equivalents\nrun on 24\/7 networks - 15% of gross spread, defined as gross revenue minus cost\nof product and other third party costs; (iv) Transactions for sale of product\nnot by TW Affiliates in transactional\n\n                                       2\n\n\nbanners or equivalents run on 24\/7 networks - $.40 per transaction with limited\nfraud check service; additional amounts will be paid for enhanced fraud check\nservices, on a per transaction basis, which will be determined on an as needed\nbasis with most favored nation pricing for 24\/7; this provision begins at the\ntime that TW begins providing back-end transaction processing services; (v)\nAdvertising Representations of Network Sites - a finder's fee of (a) $500 per\nWeb site that generates at least 1mm ad impressions per month; (b) $250 per Web\nsite that generates between 500K - 1mm ad impressions per month; and (c) $50 per\nWeb site that generates between 100k - 500K ad impressions per month. This will\nbe determined after Affiliate is represented by 24\/7 for a period of 30 days to\nverify impression levels. 24\/7 agrees to provide TW within 45 days after the end\nof each month with (i) a report showing all TW Affiliates for which 24\/7\nprovided 24\/7 services in the prior month and the revenue generated from such\n24\/7 Services and (ii) payment equal to TW's appropriate share of all revenue\ncollected in the prior month.\n\n        H. The revenue sharing payment contemplated by Section 2.G. shall apply\nonly in respect of existing and after acquired TW Affiliates who are not\ncurrently also 24\/7 Affiliates or 24\/7 Advertisers at the time they are acquired\nby TW. A list of all current TW Affiliates is attached hereto as Exhibit 2. A\nlist of all current 24\/7 Affiliates and 24\/7 Advertisers is attached hereto as\nExhibit 1. 24\/7 agrees not to solicit any current or future TW Affiliate except\npursuant to a joint promotion prepared by both parties pursuant hereto.\n\n3.      Branding.\n\n        A. 24\/7 agrees to co-brand its Click2Buy transactional banner service\nwith the 'ShopNow' logo in a manner to be mutually agreed upon and to direct\ntraffic to ShopNow.com upon completion of the Click2Buy transaction.\n\n        B. TW agrees to co-brand ShopNow.com with a Click2Buy logo (or other\nbranding as 24\/7 chooses) in a manner to be mutually agreed upon.\n\n4.      Additional Covenants.\n\n        A. 24\/7 agrees to make available to TW and to TW Affiliates reasonable\namounts of advertising inventory on the 24\/7 Network, on a cpm, cpc and\n'default' basis, at 'most favored nation' rates, and to make available at least\nthe amount of the guaranteed spend by TW pursuant to 4.B. on a non pre-emptible\nbasis.\n\n        B. TW agrees to purchase advertising on the 24\/7 Networks at an\naggregate minimum cost of $1,000,000 during each twelve (12) month period of\nthis Agreement (reduced proportionately for any partial period due to early\ntermination of this Agreement);\n\n5. Marketing Programs. 24\/7 and TW will jointly define marketing programs and\nbudgets through written marketing plans updated no less frequently than every\nsix (6) months. In the event of a disagreement, 24\/7 shall have the final\ncontrolling rights on all marketing and promotion of the joint services\n(including but not limited to presentation, copy, format, design, script\ndevelopment, etc.) subject to non-contravention of existing agreements, laws or\nregulations, and subject to reasonable limits on costs to be incurred by TW.\n\n6.      Participation in Profilz and other Co-op Databases.\n\n                                       3\n\n\n        A. 24\/7 agrees to grant TW access, on a most favored nation price basis,\nto 24\/7 Profilz to enable TW to use Profilz for its own internal purposes or to\noffer Profilz to TW Affiliates to enhance their online advertising campaigns;\n\n        B. 24\/7 also agrees to offer TW access on a most favored nation pricing\nbasis to any other database services or technology that 24\/7 develops during the\nTerm;.\n\n        C. Subject to contractual and legal restrictions between TW and TW\nAffiliates, TW agrees to provide all available registration and transactional\ninformation to the Profilz database; 24\/7 shall compensate TW for such\nregistration data on a Most Favored Nation basis; TW will have access to\ncontributed names and information that has been appended to it; TW will be able\nto participate in Profilz and other 24\/7 Co-op Database initiatives that are\ncreated during the Term of this Agreement.\n\n\n7.      Exclusivity\n\n        A. TW hereby grants 24\/7 the sole third party right to sell advertising,\nsponsorships and promotions on all web sites operated by TW (Buysoftware.com,\nshopnow.com, etc.) during the Term. This exclusivity shall expire with respect\nto any one web site operated by TW (Buysoftware.com, shopnow.com, etc.) in the\nevent 24\/7 fails to achieve an overall CPM of $2 or more on such web site for\nthree consecutive months. TW may continue to sell advertising on up to 50% of\nthe advertising inventory on the sites using internal sales force. 24\/7 and TW\nwill mutually agree on what part of the sites represent the 50% and may adjust\nminimum CPM accordingly.\n\n        B. TW hereby grants 24\/7 the sole third party right to sell advertising,\nsponsorships and promotions on all TW affiliate sites. 24\/7 agrees and TW\nacknowledges that TW cannot prohibit TW affiliates from directly engaging other\nthird parties for ad representations.\n\n        C. TW hereby grants to 24\/7 the sole third party right to offer ad\nplacement services to TW affiliates. 24\/7 agrees and TW acknowledges that TW\ncannot prohibit TW affiliates from engaging other third parties for ad\nplacements.\n\n        D. TW hereby appoints 24\/7 as the premier provider of email services on\na service bureau, CRM and list rental basis to TW and TW Affiliates. Such\nexclusivity is based on TW receiving business terms substantially equivalent to\nthose offered by third parties and shall not preclude TW from sending emails\nitself; 24\/7 acknowledges that TW is party to existing agreements that shall be\nphased out over 180 days;\n\n        E. 24\/7 agrees not to engage any of the following direct competitors of\nTW as a co-marketing partner for e-commerce technologies offered by TW: Digital\nRiver, Cybersource, PaymentTech, Go2Net, Imall, CyberCash, First USA. Also, TW\nshall have a right of first refusal on any other partnership with 24\/7 for\ne-commerce technology or services from other third parties assuming TW provides\nsimilar products and services in terms of functionality and quality;\n\n        F. 24\/7 agrees to extend this Agreement to include non-U.S. networks\naffiliated with 24\/7, provided that 24\/7 has substantial control of such \nnon-U.S. networks and presuming that TW establishes non-U.S. operations that are\non a par in terms of quality with the TW U.S. operations.\n\n                                       4\n\n\n8.      Term and Termination\n\n               A. The term of this Agreement (the 'Term') shall commence on the\nEffective Date and shall continue until terminated by either party pursuant to\nthis Section 8.\n\n               B. Either party may terminate the Agreement by giving written\nnotice no earlier than two years and eight months after the Effective Date.\nTermination will be effective four (4) months after the date on which written\nnotice is given, as determined under the provisions of Section 19 below, to the\nother party.\n\n               C. Notwithstanding Section 8.B. above, this Agreement may be\nterminated by either party on 60 days' prior written notice to the other party\nupon the occurrence of a material breach by the other party of any covenant,\nduty or undertaking herein, which material breach continues without cure for a\nperiod of 30 days after written notice of such breach from the non-breaching\nparty to the breaching party.\n\n        D. Notwithstanding 8.B above, in the event (i) of a sale or distribution\nof all or substantially all of the assets of TW or a sale to a single party of\nmore than 50% of the voting stock of TW or (ii) that TW or its affiliates begins\nto compete directly with the 24\/7 Services, 24\/7 may, in its sole discretion,\nterminate this Agreement immediately. In the event that 24\/7 terminates this\nAgreement pursuant to the preceding sentence of this Section, TW shall reimburse\n24\/7 for reasonable out-of-pocket expenses incurred in transferring the\nAgreement, at 24\/7's election, to another e-commerce vendor. With 24\/7's\napproval, which shall not be unreasonably withheld, TW may negotiate transfer\nexpenses on behalf of 24\/7 with another e-commerce vendor of 24\/7's choosing to\nensure the reasonableness of the expenses. With 24\/7's approval, TW may provide\ncomponents of the transfer.\n\n        E. Either party may terminate this Agreement with immediate effect: (i)\nupon the institution by the other party of proceedings to be adjudicated a\nbankrupt or insolvent, or the consent by the other party to institution of\nbankruptcy or insolvency proceedings against it or the filing by the other party\nof a petition or answer or consent seeking reorganization or release under the\nFederal Bankruptcy Code, or any other applicable Federal or state law, or the\nconsent by the other party to the filing of any such petition or the appointment\nof a receiver, liquidator, assignee, trustee, or other similar official of the\nother party or of any substantial part of its property, or the making by the\nother party of an assignment for the benefit of creditors, or the admission in\nwriting by the other party of an assignment for the benefit of creditors, or the\nadmission in writing by the other party of its inability to pay its debts\ngenerally as they become due or the taking of corporate action by the other\nparty in furtherance of any such actions; (ii) if, within 60 days after the\ncommencement of an action against the other party seeking any bankruptcy,\ninsolvency, reorganization, liquidation, dissolution or similar relief under any\npresent or future law or regulation, such action shall not have been dismissed\nor all orders or proceedings thereunder affecting the operations or the business\nof the other party stayed, or if the stay of any such order or proceeding shall\nthereafter be set aside; or if, within 60 days after the appointment without the\nconsent or acquiescence of the other party of any trustee, receiver or\nliquidator or similar official of the other party, or of all or any substantial\npart of the property of the other party, such appointment shall not have been\nvacated.\n        F. Notwithstanding Section 8.A above, this Agreement will terminate if\nthe Equity Exchange set forth in Section 9 of this Agreement is not closed\nwithin 10 days of execution of this Agreement.\n\n                                       5\n\n\n9.      Stock Purchase.\n\n        A. Pursuant to the Equity Exchange Agreement, a copy of which is\nattached hereto, within 10 days after the Effective Date, TW shall issue to 24\/7\n4,300,000 shares of preferred stock of TW with a market value of $30,100,000\n(based on a pre-investment fully diluted value of TW of approximately\n$150,000,000). The number of all shares issued shall represent approximately\n19.8% of outstanding stock of TW after issuance.\n\n        B. On the effective date of the Equity Exchange Agreement, TW shall\ndeliver to 24\/7 shares of preferred stock of TW with a value of $22,850,000 and\nshall hold the remainder in escrow (the 'First Closing'). As consideration for\nthis issue, on the effective date of the Equity Exchange Agreement, 24\/7 shall\ndeliver to TW, pursuant to a separate Equity Exchange Agreement, shares of 24\/7\nwith a fair market value of $22,850,000, with such fair market value to be\ndetermined by reference to the closing price per share of common stock of 24\/7\nreported by Nasdaq for the five trading days preceding the date of this\nagreement.\n\n        C. Should 24\/7 complete its public offering of shares of common stock\ncurrently in registration or prior to May 14, 1999 (which date may be extended\nby mutual consent), then within five business days of the closing of such public\noffering, 24\/7 shall transfer to TW the sum of $5,000,000 and shall receive in\nexchange $5,000,000 worth of preferred stock of TW (based on the valuation on\nthe date of this agreement ) held in escrow. Should 24\/7 not complete such\npublic offering prior to May 14, 1999, then 24\/7 and TW shall promptly schedule\na second closing at which 24\/7 shall issue to TW shares of common stock of 24\/7\nwith a market value of $5,000,000 (based on the closing price for the five\ntrading days preceding the date of this agreement) and TW shall issue to 24\/7\nshares of preferred stock of TW with a market value of $5,000,000 (based on the\nvaluation on the date of this agreement).\n\n\n        D. Promptly after the execution hereof, 24\/7 and TW shall commence due\ndiligence and negotiations of an acquisition of Card Secure, Inc. (a majority\nowned subsidiary of 24\/7) by TW. By May 31, 1999, TW and 24\/7 shall determine\nwhether or not the transaction shall occur and the relevant terms. Should the\nparties agree not to consummate the Card Secure transaction or consummate it\nwith an agreed upon valuation for 24\/7's interest in Card Secure of less than\n$2,250,000, then TW shall issue to 24\/7 shares of preferred stock of TW with a\nmarket value of $2,250,000 (based on the valuation on the date of this\nagreement) and 24\/7 shall issue to TW shares of common stock of 24\/7 with a\nmarket value of $2,250,000 (based on the closing price for the five trading days\npreceding the date of this agreement) minus the agreed upon valuation of Card\nSecure, Inc. in any transaction.\n\n        E. In addition, TW shall issue to 24\/7 five-year warrants to purchase\nshares of common stock of TW equal to 20% of the shares of common stock issuable\nupon conversion of the preferred stock that it receives pursuant to paragraphs\nB, C and D hereof at an exercise price equal to the conversion price per share.\nSuch warrants shall contain a 'net exercise' feature.\n\n        F. 24\/7 Media, upon the execution of the Equity Exchange Agreement,\nachieving an ownership interest in TW, 24\/7 Media will receive one (1) seat on\nthe TW Board of Directors.\n\n\n10.     Intellectual Property Ownership.\n\n                                       6\n\n\n\nIn the event any inventions, methods, techniques, works of authorship, computer\nsoftware, computer upgrades, computer programs, service providers, vendor\ninformation, training materials, telemarketing scripts, e-mail scripts, computer\nscreens, reports, data, any other proprietary or confidential information is\nmade, created, developed or written hereunder and other intellectual property\ncreated, developed or written in accordance with the activities contemplated\nhereunder ('Developed Material') is, (i) fully paid for by 24\/7, such Developed\nMaterial shall be deemed the sole property of 24\/7 and any use thereof by TW\nshall require consent thereto by 24\/7; (ii) is substantially paid for by 24\/7\nand TW has had material creative or developmental input therein (including\nwithout limitation provision of proprietary or confidential information), then\nsuch Developed Material shall be deemed the property of 24\/7 with TW having a\nperpetual non-exclusive, royalty-free right of use thereof; (iii) is\nsubstantially paid for by TW and 24\/7 has had material creative or developmental\ninput therein (including without limitation provision of proprietary or\nconfidential information), then such Developed Material shall be deemed the\nproperty of TW with 24\/7 having a perpetual non-exclusive, royalty-free right of\nuse thereof; and (iv) is fully paid for by TW then such Developed Material shall\nbe deemed the sole property of TW and any use thereof by 24\/7 shall require\nconsent thereto by TW. Nothing herein shall be construed to restrict, impair or\ndeprive TW or 24\/7 of any of their respective rights or proprietary interests in\ntechnology or products that existed prior to and independent of the performance\nof their respective obligations hereunder.\n\n11.     Intellectual Property Infringement.\n\nEach party agrees to defend and\/or handle at its own expense, any claim or\naction against the other party or its affiliates (including without limitation,\nits parent, subsidiaries, officers and directors) for any actual or alleged\ninfringement of any intellectual or industrial property right, including,\nwithout limitation, trademarks, service marks, patents, copyrights,\nmisappropriation of trade secrets or any similar proprietary rights, based upon\nthe Agreement or any portion thereof furnished or utilized by such party or\nbased on the other party's use thereof. Each party further agrees to indemnify\nand hold the other party and its affiliates harmless from and against any and\nall liabilities, losses, costs, damages and expenses (including reasonable\nattorneys' fees) associated with any such claim or action. Each indemnifying\nparty shall have the sole right to conduct the defense of any such claim or\naction and all negotiations for its settlement or compromise, unless otherwise\nmutually agreed to in writing.\n\n12. Publicity. Except as may be required by law, no party hereto shall issue\nadvertising, promotional activity, press or publicity release relating to this\nAgreement without securing the prior written consent of such other party.\n\n13. Confidentiality. 24\/7 and TW covenant to each other that neither party shall\ndisclose to any third party (other than its employees and directors, in their\ncapacity as such, and the employees and directors of any affiliate on a need to\nknow basis so long as they are bound by the terms of this Agreement) any\ninformation regarding the terms and provisions of this Agreement or any\nconfidential information which has been identified as such by the other Party\nhereto except (i) to the extent necessary to comply with any law or valid order\nof a court of competent jurisdiction (or any regulatory or administrative\ntribunal), in which event the party so complying shall so notify the others as\npromptly as practicable (and, if possible, prior to making any disclosure) and\nshall seek confidential treatment of such information, if available; (ii) as\npart of its normal reporting or review procedure to its auditors or its\nattorneys, as the case may be, so long as they are notified of the provisions of\nthis Agreement; (iii) in order to enforce its rights pursuant to this Agreement;\n(iv) in connection with any filing with any governmental body or as otherwise\nrequired by law, including the federal securities laws and any applicable rules\nand\n\n                                       7\n\n\nregulations of any stock exchange or quotation system; and (v) in a confidential\ndisclosure made in connection with a contemplated financing, merger,\nconsolidation or sale of capital stock of 24\/7 or TW. Information which is or\nshould be reasonably understood to be confidential or proprietary includes, but\nis not limited to, information about the 24\/7 Network, sales, cost and other\nunpublished financial information, product and business plans, projections,\nmarketing data, and sponsors but shall not include information (a) already\nlawfully known to or independently developed by a party, (b) disclosed in\npublished materials other than through a breach of these confidentiality\nprovisions, (c) generally known to the public other than through a breach of\nthese confidentiality provisions, (d) lawfully obtained from any third party or\n(e) required to be disclosed by law.\n\n14. Indemnification. TW shall indemnify and hold harmless 24\/7, its advertisers\nand other suppliers and any related third parties, against and in respect of any\nand all claims, suits, actions, proceedings (formal and informal),\ninvestigations, judgments, deficiencies, damages, settlements, liabilities, and\nlegal and other expenses (including reasonable legal fees and expenses of\nattorneys chosen by 24\/7) as and when incurred, arising out of or based upon any\nact or omission or alleged act or alleged omission by TW in connection with the\nacceptance of, or the performance or non-performance by TW of, any of its duties\nunder this Agreement or arising from the breach by TW of its warranties,\nrepresentations or covenants contained in this Agreement. 24\/7 shall indemnify\nand hold harmless the TW, against and in respect of any and all claims, suits,\nactions, proceedings (formal and informal), investigations, judgments,\ndeficiencies, damages, settlements, liabilities, and legal and other expenses\n(including reasonable legal fees and expenses of attorneys chosen by TW) as and\nwhen incurred, arising out of or based upon any act or omission or alleged act\nor alleged omission by 24\/7 in connection with the acceptance of, or the\nperformance or non-performance by 24\/7 of, any of its duties under this\nAgreement or arising from the breach by 24\/7 of its warranties, representations\nor covenants contained in this Agreement.\n\n15.     Representations, Warranties &amp; Covenants\n\n    A. Each party hereto represents and warrants that it has full power and\nauthority to execute this Agreement and to take all actions required by, and to\nperform the agreements contained in, this Agreement, and that the each party's\nrespective obligations under this Agreement do not conflict with its obligations\nunder any other agreement by which the such party is bound.\n\n    B. Each party represents, warrants and covenants that the performance of its\nrespective obligations under this Agreement complies and will comply with all\napplicable federal, state, local and foreign laws and regulations.\n\n16. No Poaching. TW agrees that, during the Term and for a period of one year\nfrom the end of the Term, neither it nor its affiliates will solicit or recruit\nthe services of any 24\/7 employees, or hire any such employees. 24\/7 agrees\nthat, during the Term and for a period of one year from the end of the Term,\nneither it nor its affiliates will solicit or recruit the services of any TW\nemployees, or hire any such employees\n\n17. No Waiver. This Agreement shall not be waived, modified, assigned or\ntransferred except by a written consent to that effect signed by TW and 24\/7. TW\nagrees that if it assigns or transfers this Agreement, it shall cause such\nsuccessor, assignee, or transferee to assume all of the TW's obligations\nhereunder. Any assignment, transfer, or assumption shall not relieve the TW of\nliability hereunder.\n\n                                       8\n\n\n18. Governing Law. This Agreement shall be governed by and construed in\naccordance with the laws of the State of New York applicable to contracts made\nand performed therein, without regard to principles of conflicts of laws.\n\n19. Notices. All notices required or permitted to be given hereunder shall be in\nwriting and either hand-delivered, telecopied, mailed by certified first class\nmail, postage prepaid, or sent via electronic mail to the other party or parties\nhereto at the address(es) set forth below. A notice shall be deemed given when\ndelivered personally, when the telecopied notice is transmitted by the sender,\nthree business days after mailing by certified first class mail, or on the\ndelivery date if delivered by electronic mail.\n\n20. Counterparts. This Agreement may be executed in counterparts, each of which\nshall be deemed an original and all of which together shall constitute one and\nthe same document.\n\n21. Force Majeure. Neither party shall be held liable or responsible to the\nother party nor be deemed to have defaulted under or breached this Agreement for\nfailure or delay in fulfilling or performing any term of this Agreement when\nsuch failure or delay is caused by or results from causes beyond the reasonable\ncontrol of the affected party, including but not limited to fire, floods,\nfailure of communications systems or networks, embargoes, war, acts of war\n(whether war is declared or not), insurrections, riots, civil commotion,\nstrikes, lockouts or other labor disturbances, acts of God or acts, omissions or\ndelays in acting by any governmental authority or the other party; provided,\nhowever, that the party so affected shall use reasonable commercial efforts to\navoid or remove such causes of nonperformance, and shall continue performance\nhereunder with reasonable dispatch whenever such causes are removed. Either\nparty shall provide the other party with prompt written notice of any delay or\nfailure to perform that occurs by reason of force majeure. The parties shall\nmutually seek a resolution of the delay or the failure to perform as noted\nabove.\n\n22. Severability. Should one or more provisions of this Agreement be or become\ninvalid, the parties hereto shall substitute, by mutual consent, valid\nprovisions for such invalid provisions which valid provisions in their economic\neffect are sufficiently similar to the invalid provisions that it can be\nreasonably assumed that the parties would have entered into this Agreement with\nsuch valid provisions. In case such valid provisions cannot be agreed upon, the\ninvalidity of one or several provisions of this Agreement shall not affect the\nvalidity of this Agreement as a whole, unless the invalid provisions are of such\nessential importance to this Agreement that it is to be reasonably assumed that\nthe parties would not have entered into this Agreement without the invalid\nprovisions.\n\n23. Dispute Resolution. Any controversy or claim arising out of or relating to\nthe Agreement, or the breach thereof, shall the subject of resolution efforts by\nthe Chief Executive Officers and General Counsels of each party for at least 30\ndays prior to any action being commenced. Any unresolved disputes shall be\nsettled exclusively by arbitration. Such arbitration shall be conducted before a\nsingle arbitrator in accordance with the Commercial Arbitration Rules of the\nAmerican Arbitration Association then in effect. If arbitration is commenced by\n24\/7, it shall take place in Seattle, Washington. If arbitration is commenced by\nTW, it shall take place in New York, New York. Judgment may be entered on the\narbitrator's award in any court having jurisdiction, and the parties irrevocably\nconsent to the jurisdiction of the courts of Washington and New York for that\npurpose. The parties waive personal service in connection with any such\narbitration; any process or other papers under this provision may be served\noutside Washington or New York by registered mail, return receipt requested, or\nby personal service, provided a reasonable time for appearance or response is\nallowed. All decisions\n\n                                       9\n\n\nof the arbitrator shall be final and binding on the parties. The parties shall\nequally divide all costs of the American Arbitration Association and the\narbitrator. Each party shall bear its own legal fees in any dispute. The\narbitrator may grant injunctive or other relief.\n\n24. Independent Contractors. 24\/7 Media and TW shall each act as independent\ncontractors. Neither party shall exercise control over the activities and\noperations of the other party. 24\/7 Media and TW shall each conduct all of its\nbusiness in its own name and as it deems fit, provided it is not in derogation\nof the other's interests. Neither party shall engage in any conduct inconsistent\nwith its status as an independent contractor, have authority to bind the other\nwith respect to any agreement or other commitment with any third party, nor\nenter into any commitment on behalf of the other.\n\n25. Headings: Headings stated in this Agreement are for convenience of reference\nonly and are not intended as a summary of such sections and do not affect,\nlimit, modify, or construe the contents thereof.\n\n26. Audit Rights. Upon request from any party, such requesting party shall be\ngiven reasonable access and audit and verification documentation as the\nrequesting party may reasonably request on not less than 30 days' notice in\norder to assure the other party's compliance with the terms of this Agreement.\nSuch requests shall be limited to the scope of this Agreement and shall not be\nmade more frequently than twice in any twelve-month period.\n\n27. Entire Agreement. This Agreement constitutes the entire agreement and\nsupersedes all prior agreements of the Parties with respect to the transactions\nset forth herein and, except as otherwise expressly provided herein, is not\nintended to confer upon any other person any rights or remedies hereunder.\n\n                                       10\n\n\n\nIN WITNESS WHEREOF, the parties hereto have duly executed this Agreement this \n__ day of April 5, 1999 (the 'Effective Date').\n\n\n24\/7 MEDIA, INC.\n\n\nBy:                   \/s\/ C. Andrew Johns\n                      -------------------------------\nName:                     C. Andrew Johns\nTitle:                    EVP &amp; CFO\n\nE-mail address:       ajohns@247media.com\n                      -------------------------------\n\nTECHWAVE INC.:\n\n\nBy:                   \/s\/ Alan Koslov\n                      -------------------------------\nName:                     Alan Koslov\nTitle:                    EVP Finance\/General Counsel\n\nE-mail address:       alank@techwave.com\n                      -------------------------------\n\n                                       11\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6536],"corporate_contracts_industries":[9503],"corporate_contracts_types":[9613,9617],"class_list":["post-42209","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-247-media-inc","corporate_contracts_industries-services__advertising","corporate_contracts_types-operations","corporate_contracts_types-operations__jv"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42209","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42209"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42209"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42209"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42209"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}