Services Agreement - Alloy Designs Inc. and iName
[iName LOGO] CONFIDENTIAL
Agreement between Alloy Designs, Inc.
and iName, a Division of GlobeComm, Inc.
Agreement made this 19th day of June, 1998 ("Effective Date") by and between
Alloy ("Alloy"), a Delaware corporation with a principal place of business at
115 W. 30th St., Suite 304, New York, NY 10001and iName, a division of
GlobeComm, Inc., a Delaware corporation having its principal place of business
at 11 Broadway, Suite 660, New York, NY 10004 ("iName").
1.0 TERM
1.1 TERM. The Term of this Agreement shall be for a period of six
(6) months commencing on the Effective Date, with automatic
successive six (6) month renewals. Either party may cancel
this Agreement with written notice thirty (30) days prior to
the start of any new term.
1.2 CONTINUATION OF SERVICE. In the event this Agreement expires
or terminates, iName will continue to provide support services
for individuals who have registered for Alloy's Alloymail.com
e-mail service ("Users") during a 60-day transitionary period,
unless a shorter transitionary period is mutually agreed upon.
During such transitionary period iName shall transfer all User
data to Alloy or a third party chosen by Alloy to enable Alloy
or such third party to continue providing comparable email
service to these Users.
2.0 iNAME COMMITMENTS
2.1. EMAIL TRANSFER: iName will receive and incorporate all Alloy
existing Users' email addresses and passwords and all Inbox
mail from such Users.
2.2. DESIGN AND OPERATION OF EMAIL SITE. iName shall design with
Alloy's input and final approval a fully co-branded web site
offering email services ("Email Site") for Alloy which shall
have the "look and feel" of the Alloyonline(TM) Web Site
("Alloy Site") with the appropriate iName logo, trademark and
copyright notices. The Email Site shall be hosted on iName's
servers and shall integrate with the Alloy Site such that
Internet users signing up for email services at the Email Site
("Users") will be able to seamlessly travel between the Alloy
Site and the Email Site.
2.3. INFRASTRUCTURE. The Email Site shall be hosted on iName's
state-of-the-art fully redundant, multi-homed server network.
2.4. EMAIL SITE FEATURES. The Email Site shall have: i) a
fully-automated registration area where Users can sign-up for
web-based email services; ii) a log-in portal where Users can
access their accounts; iii) personalized web mail box
accounts; iv) an automated email customization center allowing
Users flexibility to modify personal information and customize
their email functionality at any time; v) an automated
customer support center; and vi) an area where Users can
sign-up for additional value-added email services. The Alloy
Site navigation bar will appear
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throughout the Email Site enabling Users to access the Alloy
Site from their web mail box and other sections of the Email
Site.
2.5. EMAIL SERVICES. Users will have access to web-based email upon
signup, allowing them to send and receive email from the Email
Site.
2.6. VALUE-ADDED SERVICES. Users shall have the option of
purchasing or subscribing to additional value-added email
services as soon as they are available to other users in the
iName partner network including, but not limited to, email
forwarding, POP email services, email to fax, email to pager,
email virus scanning, email vacation notices, and language
translation.
2.7. EMAIL ADDRESS. Users will be able to signup for an email
address at the domain name alloymail.com
2.8. CONTRACTUAL RESPONSIBILITY. iName shall enter into contractual
relationships with Users for the provision of Email Services.
iName shall be solely responsible for the billing and
collection of revenues relating to Email Services. iName shall
ensure in its terms and conditions that Users understand that
iName, and not Alloy, is responsible for all obligations with
respect to the support of Email Services. To the extent that
Alloy subsequently assumes responsibility for operating the
service Alloy will assume contractual obligation for the Users
future email services and indemnify iName in a manner similar
to iName's indemnification herein for faults occurring while
Alloy or its designated party is running the service.
2.9. LOGIN PORTAL. iName will provide an email login portal to
Alloy that Alloy can place on the pages of the Alloy Site.
2.10. ACCEPTABLE USE POLICY. iName will strictly enforce the
Acceptable Use Policy contained in the iName Service Agreement
which prohibits the sending of unsolicited or harassing
emails.
2.11. CUSTOMER SUPPORT. iName, and not Alloy, shall be solely
responsible for providing support services to Users. Support
services shall include, but are not limited to:
ONLINE SUPPORT: iName shall maintain up-to-date support
information at the Email Site and offer Users automated
support technology including but not limited to personalized
email client setup screens and an automatic password
generation facility.
TELEPHONE SUPPORT: iName shall provide telephone customer
support during iName's normal business hours.
EMAIL SUPPORT: iName shall provide customer support via email
seven days per week.
2.12. USERREGISTRATION DATA. iName shall provide Alloy via email
with its choice of weekly or daily real-time reports
containing registration data for all Users who sign-up for
service at the Email Site. Such data transfer typically takes
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weeks to implement from the launch date but once implemented
all historic data will be transferred along with the current
ongoing data. iName shall not sell or otherwise provide User
contact information or data specifically identifying any User
to any third party without the express written permission of
Alloy.
2.13. PRIVACY. iName shall not monitor or disclose the contents of
Users' private communications unless required to do so by law
or in the good faith belief that such action is necessary to
protect and defend iName's rights or property, or under
exigent circumstances to protect the personal safety of its
customers or the public.
3.0 ALLOY COMMITMENTS
3.1 LINKS. Alloy shall place on the Alloy Site a prominent link to
the Email Site including but not limited to an email log-in
portal on the home page "above the fold" and a "Free Email"
button on the Alloy Site navigation bar.
4.0 ECONOMICS
4.1 SET-UP FEE. In consideration for iName building the Email
Site, Alloy shall pay iName a set-up fee of [ ]* dollars
($[ ]*) following launch of the Email Site.
4.2 NET ADVERTISING FEES. iName shall be responsible for the sale
of the banner inventory at the Email Site. At Alloy's option,
it can elect to assume responsibility for selling the banner
advertising inventory. If it makes such election it will allow
iName to complete ad programs previously sold prior to such
date. If excess banner advertising inventory remains, it shall
be used to promote the Email Site and the Alloy Site in
similar proportion. In addition, either party may sell
non-banner advertising or sponsorships on the Email Site,
provided that all such other advertising or sponsorships shall
be subject to the approval of the other party, which shall not
be unreasonable withheld. "Net Advertising Fees" shall be
defined as the gross amounts actually collected by either
iName or Alloy for the sale of advertising, minus the amount
of sales and agency commissions (not to exceed [ ]*%), credits
and refunds. Subject to Section 4.4, all Net Advertising Fees
shall be calculated monthly and split [ ]* between iName and
Alloy. The shared Net Advertising Fees and Net Advertising
Fees receivable shall be reported by the collecting party to
the non-collecting party 30 days following the end of each
month. Net Advertising Fees will be paid to the non-collecting
party within 30 days at the end of each quarter.
4.3 NET SERVICES REVENUE. In addition to sharing Net Advertising
Fees [ ]*, iName will split [ ]* with Alloy all Net
Services Revenue iName collects from the Email Site Subject to
Section 4.4. "Net Services Revenue" is defined as revenue
collected from the sale of Value-Added Email Services and any
other services at the Email Site by iName, less any User
credits or refunds and any iName direct out-of-pocket costs to
unaffiliated third parties in connection with such services.
Net Services Revenue shall be calculated monthly and paid 30
days following the end of each month.
4.4 ALLOY PAYMENTS. Alloy will pay to iName a monthly fee of
[ ]* dollars ($[ ]*) for operating the Email Site. All Net
Advertising Fees and Net Services
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Revenue generated in a month up to $[ ]* will first be paid
to Alloy as reimbursement for the monthly fee. Any amounts
over and above $[ ]* generated in a month will be split
[ ]* between iName and Alloy as described in Sections 4.2
and 4.3. Alloy's payments to iName will be due on a quarterly
basis on the 15th day of the second month of the quarter and
will cover the three months of the quarter.
4.5 PAYMENTS. All payments due shall be made 30 days after the end
of each month during the Term for payments accrued during such
month. With all payments, the paying party shall provide the
recipient party with reports containing information reasonably
satisfactory to the recipient to verify the paying party's
compliance with the provisions of this Section 4.0.
4.6 RIGHT TO AUDIT. The parties agree to allow each other to
perform audits of its records to determine compliance with its
obligations pursuant to this Section 4.0, provided that the
individual conducting the audit and the party requesting the
audit agree not to disclose any confidential information
revealed in the course of the audit. Any audit shall be
conducted during regular business hours at the offices of the
party being audited and shall not unreasonably interfere with
its business activities. Audits may be performed no more
frequently than twice per year and the party requesting the
audit shall give the other at least thirty (30) days' prior
written notice of each audit.
5.0 GENERAL
5.1 INDEMNIFICATION. iName shall defend, hold harmless, and
indemnify Alloy from any claims, losses, and expenses,
including reasonable attorney's fees, arising out of iName's
failure to comply with its obligations under this Agreement,
provided that Alloy promptly notifies iName of any iName
failures of which Alloy has knowledge. iName shall not be
responsible hereunder for costs, expenses, or settlements
incurred directly by Alloy after obtaining knowledge of
iName's failure and before notifying iName of same and giving
iName reasonable time to correct such failures where
reasonably feasible.
5.2 USER DATA OWNERSHIP. iName agrees that all User information
obtained through the Email site, which shall include, but not
be limited to, User Name, User address, and other User
demographic information ("User Data"), is and shall remain
the sole and exclusive property of Alloy, and as such iName
will not use or disclose the User Data without the express
written permission of Alloy for any purpose, including but
not limited to developing and/or improving any service to any
marketer primarily serving the teen market, including but
not limited to Wet Seal/Contempo Casuals, Claire's Stores
(Just Nikki), Delia's, Fulcrum Direct (Zoe), HMB Publishing
(Moxiegirl), Airshop, or Girlfriends L. A.
In the event this Agreement expires or terminates iName will
transfer to Alloy or Alloy's designated third party all User
Data in iName's possession at such time in accordance with the
process described in Section 1.2 of this Agreement. Upon
request from Alloy, iName will destroy any and all copies of
the User Data, provided that Alloy agrees to preserve its
record of such User Data for no less than four (4) years
following such destruction, and provide copies of any and all
such User Data to iName or a designated third party in the
event a need for such User Data arises out of legal
obligation. In the event that Alloy is unable to provide the
user Data as set forth due to its failure to preserve it,
Alloy shall be liable for any damages incurred by iName due to
it not being able to meet its legal obligations to produce the
User Data, and shall indemnify, defend and hold harmless iName
for any related claims or liability.
5.3 EXCLUSIVITY. Both parties agree not to carry knowingly on any
web property under its control linking to the Email Site, nor
on the Email Site itself, any advertising in any form,
including but not limited to banners, portals, links, buttons,
sponsorship pages, or promotions, from the following email
service competitors of iName: Hotmail, WhoWhere, MailExcite,
YahooMail, ProntoMail, BigFoot, Netcenter Mail, NetAddress,
USA.net, or Juno and from the following Alloy competitors
primarily serving the teen market: Wet Seal/Comptempo
Casuals, Claire's Stores (Just Nikki), Delia's, Fulcrum Direct
(Zoe), HMB Publishing (Moxiegirl), Airshop, or Girlfriends
L.A.
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Alloy shall have the right to terminate this agreement in its
sole discretion in the event that iName enters into an
agreement to provide e-mail services to and/or to develop
and/or to improve any service to the following Alloy
competitors primarily serving the teen market: Wet
Seal/Contempo Casuals, Claire's Stores (Just Nikki), Delia's,
Fulcrum Direct (Zoe), HMB Publishing (Moxiegirl), Airshop, or
Girlfiends L.A.
5.4 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement, and supersedes any and all prior agreements between
the parties. The Agreement may be amended only by a writing
signed by both parties.
5.5 EXECUTION BY FACSIMILE. An executed copy of this Agreement
transmitted via facsimile by the executing party and received
via facsimile by the other party shall have the same legal
force as an executed original version of this Agreement.
5.6 NO AGENCY RELATIONSHIP. The relationship created by this
Agreement is that of independent contractor. Nothing in this
Agreement shall be construed to make either party the partner,
agent, employee or representative of the other or grant any
third party any rights hereunder. Neither party has authority
to make any warranties or incur any liabilities or obligations
on behalf of or binding on the other party.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives as of the Effective Date.
ALLOY DESIGNS, INC. iNAME, A DIVISION OF GLOBECOMM, INC.
By: /s/ Matt C. Diamond By: /s/ Gary Millin
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Name: Matt C. Diamond Name: Gary Millin
Title: President Title: President
Date: 8/28/98 Date: 8/26/98
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