Exhibit 10.1


 


LIST MANAGEMENT AGREEMENT


 


THIS AGREEMENT, effective
as of this 9th day August, 2010 (the "Effective Date") by and between SpyFire Interactivem LLC, with its principle
address at P.O. BOX 3478 Incline Village, NV ("Company"), and AdCafe LLC, with its principle address at 5072 N 300 W
Provo, UT 84604 to be known as ("Client"). Company and Client arc referred to herein collectively as the "Parties"
or individually as a "Party".


 


RECITALS


 


WHEREAS Company has
the technological infrastructure to distribute E-mail marketing campaigns for Client; and


 


WHEREAS Company and
Client desire to enter into a strategic relationship relating to certain business marketing development activities;


 


NOW, THEREFORE, in
consideration of the respective representations and warranties hereinafter set forth and of the mutual covenants and agreements
contained herein, the Parties, intending to be legally hound, hereby agree as follows:


 


SECTION 1


 


RESPONSIBILITIES:


 


1.1           Promotion
of Client's Offers. Company agrees to use its best efforts to market and promote Client's materials through E-mail campaigns by
utilizing Company's and Client's email lists. Company will provide services for E-mail distribution, unsubscribe processes, abuse
complaints and other technical areas for delivery, tracking and hosting. Company represents and warrant, that it will comply with
all aspects of the Can-Spam Act of 2003; and Company will not send or transmit any E-mail: (a) with a "from line" that
is materially false or misleading and does not accurately identify the person sending the E-mail; (b) with a subject line that
is misleading, false or misrepresentative or is objectively likely to mislead the recipient about the content of the Email; (c)
that does not include a clear and conspicuous identification that the E-mail is an advertisement or solicitation, (d) a clear and
conspicuous notice of the opportunity to decline to receive farther communications, and a valid physical postal address;
or (e) with any content that (i) infringes or violates any intellectual, proprietary or privacy rights of any other individual
or entity; or (ii) is misrepresentative, defamatory or violates any applicable federal or state law or regulation.


 


1.2           List
Integrity. Client will not provide any E-mail addresses to Company that Client knows or show have know that the E-mail address
is of an individual or entity that has requested not to receive any E-mails, and the request has been made more than five (5) days
prior to providing the Client list to Company.


 


1.3           Company
agrees that the Client is the owner of the data provided on the list, and acknowledges that it does not have the right to sell,
resell, disclose, transfer, duplicate, or retain the list, or any portion thereof, without the written authorization of Client
in each instance, and will not permit any third party to do any similar activity.


 


1.4           Approval
Rights. Client shall also have the right to review and approve or disapprove all offers to be sent to its database. Client shell
promptly review such offer(s), and any offer presented to Client that has not been disapproved in writing within forty-eight (48)
hours of submission will be deemed approved. If after approval has been given, Client desires to revoke its approval, such revocation
must be provided to Company in writing, and Company will work in a reasonably prompt manner to stop further transmission of such
offers.


 



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1.5           Reporting.
By the 15th day of each month, Company shall deliver to Client a report containing the following information for the
prior calendar month: total new records received from Client, total gross revenues derived from Client's list, actual
payments to 3rd parties for email delivery to Client's list, and commissions due to Client.


 


SECTION 2


 


COMMISSIONS & TERM


 


2.1           Commissions.
Company agrees to pay Client fifty percent (50%) of all gross revenues derived from Client's list, including all sources, less
deductions for Company's costs to 3rd parties for email delivery to Client's list. Therefore the monthly Commission
payment to Client shall be calculated by taking gross revenue less actual payments to a 3rd party for email delivery
to Client's list and then paying 50% of the revenue to Client. For example, if the gross revenue derived front Client's list for
a given month is $100,000 and Company's payments to 3rd parties for email delivery to Client's list amount to $10,000,
Company's Commission payment to Client will be $45,000. Company will pay Client Commission on a monthly basis, net 45 days from
the month it was generated. For example, the Commission payment for revenues generated on Client list in March will be due to Client
on April 30th.


 


2.2           Term.
The term of this Agreement (the "Term") shall commence on the date stated above and shall continue for a period of one
(1) year, and, unless earlier terminated pursuant to the terms set forth herein, shall automatically renew at the end of each year
for another one (1) year term.


 


2.3           Termination.
(a) Any Parties may immediately terminate this Agreement without prejudice to any other rights it may have hereunder or at law
in the event of (i) a material breach by one or both of the other Parties, which is not cured within fifteen (15) days of receiving
written notice of such breach by the notifying Party, or (ii) upon Company or Client's insolvency or liquidation as a result of
which either Party ceases to do business for a period of thirty (30) calendar days or more, or (iii) fraud, embezzlement, misappropriation
of funds or breach of trust in connection with the services or (iv) upon thirty (30) days written notice to the other party, with
or without cause.


 


2.4           Survival.
In addition to those provisions herein which by their nature survive the termination of this Agreement, Sections 3-5 shall survive
any termination or expiration of this Agreement.


 


2.5           Ownership.
The E-mail list provided by Client will remain the property of Client throughout this Agreement and after. Company will not have
the right to market this list after this Agreement terminates or expires without the written authorization of Client.


 


SECTION 3


 


CONFIDENTIALITY


 


3.1           Definition.
Any information disclosed by one Party (the "Disclosing Party") to the other (the "Receiving Party") in connection
with this Agreement shall be confidential information if it is in written, graphic, machine-readable or other tangible form and
is marked "Confidential," "Proprietary" or in some other manner to indicate its confidential nature ("Confidential
Information"). Confidential Information may also include information that is disclosed orally, provided that such information
is designated as confidential at the time of disclosure and confirmed in writing as confidential within a reasonable time after
its oral disclosure. Confidential Information includes, but is not limited to, all information relating to users or customers of
the Disclosing Party's respective products and services and all information regarding unit sales, sales revenues, profit
margins, advertising rates and similar non-public financial information.


 



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3.2           Obligation.
Each Party shall treat as confidential all Confidential Information received from the other Party, shall not use such Confidential
Information except as expressly permitted under this Agreement, and shall not disclose such Confidential Information to any third
party without the other Party's prior written consent. Without limiting the foregoing, each Party shall use at least the same degree
of care which it uses to prevent the disclosure of its own confidential information of like importance, but in no event with less
than reasonable care, to prevent the disclosure of Confidential Information disclosed to it by the other Party under this Agreement.


 


3.3           Exceptions.
The Receiving Party shall be relieved of this obligation of confidentiality to the extent such information (i) was in the public
domain at the time it was disclosed or has become in the public domain through no fault of the Receiving Party, (ii) was known
to the Receiving Party, without restriction, at the time of disclosure as shown by the files of the Receiving Party in existence
at the time of disclosure, (iii) is disclosed by the Receiving Party with the prior written approval of the Disclosing Party, (iv)
was independently developed by the Receiving Party without any use of the Disclosing Party's Confidential Information and by
employees or other agents of the Receiving Party who have not had access to any of the Disclosing Party's Confidential Information,
or (v) becomes known to the Receiving Party, without restriction, from a source other than the Disclosing Party without breach
of this Agreement by the Receiving Party and otherwise not in violation of the Disclosing Party's rights, or (vi) is required by
law or regulations (including but not limited to securities laws or regulations) to be disclosed.


 


3.4           Enforcement.
Each Party shall exert its commercially reasonable efforts, including, but not limited to, the execution of proprietary non-disclosure
agreements with employees and consultants, and the taking of legal action to enforce compliance with the provisions of this Section
3 by its directors, officers, employees and any third party who had access to the Confidential Information of the other Party.
Each of the Parties further agrees that the unauthorized disclosure of Confidential Information received from the other Party shall
cause irreparable harm and significant injury to the other Party that may be difficult to ascertain. Accordingly, each Party agrees
that the other Party shall be entitled to equitable relief, including, without limitation, an immediate injunction enjoining any
breach of this Section 3, in addition to any and all other remedies available to such Party at law or in equity. The Parties agree
that this Section 3 shall survive the termination or expiration of this Agreement for a period of two (2) years.


 


SECTION 4


 


REPRESENTATIONS AND WARRANTIES


 


4.4           Company
and Client represent, warrant and covenant to each other that (i) it has full power and authority and has taken all action necessary
to execute and deliver this Agreement and to fulfill its obligations hereunder, (ii) the making and performance by it of this Agreement
does not and shall not violate any law or regulation applicable to it, its certificate of incorporation, by-laws or other organizational
documents or any other agreement to which it is a party or by which it is bound, (iii) this Agreement has been duly executed and
delivered by it and constitutes its legal, valid and binding obligations, enforceable against it in accordance with the respective
terms hereof (except to the extent that the enforceability thereof may be limited by bankruptcy, insolvency or other similar laws
of general applicability affecting enforcement of creditors' rights generally, or by a court's discretion in relation to equitable
remedies), and (iv) all approvals, authorizations or other actions by or filings with any governmental authority or other person
or entity necessary for the validity or enforceability of its obligations under this Agreement have been obtained.


  



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SECTION 5


 


INDEMNIFICATION


  


5.1           Indemnification
Obligations. Client shall indemnify, hold harmless and defend Company, its officers, directors, employees, representatives, agents
and successors and assigns from and against any and all claims, liabilities, losses, damages, expenses and coats (including without
limitation, legal fees and costs) (collectively, "Claims") arising out of or relating to (i) Client's breach of any of
its representations and warranties set forth herein, (ii) Client's breach of any of its obligations hereunder, including but not
limited to ensuring that all data on its lists provided Company are permission based and have been acquired in conformance with
Federal and State laws and regulations.


 


5.2           Indemnification
Procedure. The Client shall give prompt notice to Company of the occurrence of any Claims or threat of any Claims to which Company
may be subject hereunder. Company shall have the right to participate in the defense of any third-party Claim. Client's indemnification
obligation hereunder shall also cover the fees and expenses of separate counsel of Company in connection with such third-party
Claim. The Client shall not settle any third-party Claim without the prior written consent of Company. In addition, if any third-party
Claim is asserted, which impairs Company's interests under this Agreement, Company shall have the right to terminate this Agreement
on written notice as provided herein in the case of Default, without, however, waiving any right to full indemnification hereunder.


 


SECTION 6


 


GENERAL


 


6.1           Notices.
All notices, payable checks and other communications between the Parties required or permitted hereunder shall be in writing
and shall be deemed to have been duly given upon receipt of hand delivery, certified or registered mail, return receipt requested,
or telecopy transmission with confirmation of receipt, addressed to the address first written above, or to such other address as
may be hereafter notified by the Parties.


 


6.2           Assignment.
Neither Party may assign this Agreement without the prior written consent of the other Party, and any attempt by a Party
to assign this Agreement without such consent shall be null and void and a material breach of this Agreement; provided, however,
that either Party may assign this Agreement (i) to any entity in which the Party has a greater than fifty percent (50%) equity
ownership interest or of which the Party has voting control, or (ii) to any entity which acquires more than fifty percent (50%)
of that Party's equity ownership interests (whether by merger or otherwise) or substantially all that Party's assets.


 


6.3           Force
Majeure. Either Party hereto shall be excused from any delay or failure in performance hereunder, except the payment of monies
due and payable hereunder, caused by reason of any occurrence or contingency beyond its reasonable control, including, without
limitation, acts of God, fires, floods, wars, civil disturbances, power outages, sabotage, accidents or disputes with organized
labor. The time for performance shall be extended for a period equal to the period during which the event of force majeure prevented
performance, but in no event for more than sixty (60) calendar days.


 


6.4           Governing
Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Utah without reference to the
choice of law principles thereof.


 


6.5           Jurisdiction.
Any judicial proceeding brought with respect to this Agreement must be brought in a court of competent jurisdiction in the
State of Utah located in the County of Utah and, by execution and delivery of this Agreement, each Party (i) accepts, generally
and unconditionally, the exclusive jurisdiction of such courts and any related appellate court, and irrevocably agrees to be bound
by any judgment rendered thereby in connection with this Agreement, (ii) irrevocably waives any objection it may now or hereafter
have as to the venue of any such suit, action or proceeding brought in such a court or that such court is an inconvenient forum
and (iii) agrees that service of process in any such action or proceeding may be effected (A) by mailing a copy thereof by registered
or certified mail (or any substantially similar form of mail), postage prepaid, to its address set forth as first stated in this
Agreement or (B) in any other manner permitted by law.


 


6.6           LIMITATION
OF LIABILITY. EXCEPT WITH RESPECT TO LIABILITY ARISING OUT OF THE OBLIGATIONS PROVIDED FOR IN SECTION V, IN NO EVENT SHALL
EITHER PARTY (OR THEIR AFFILIATES) BE LIABLE TO ANY PERSON FOR LOST PROFITS OR ANY FORM OF INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL
DAMAGES OF ANY CHARACTER FROM ANY CAUSES OF ACTION OF ANY KIND WITH RESPECT TO THIS AGREEMENT, WHETHER BASED ON BREACH OF CONTRACT,
TORT (INCLUDING NEGLIGENCE) OR OTHERWISE.


 



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6.7           Counterparts.
This Agreement may be executed simultaneously in counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument, Transmission by telecopy of an executed counterpart of this Agreement shall
be deemed to constitute due and sufficient delivery of such counterpart.


 


6.8           Amendments;
Waivers. This Agreement may not be modified, nor may any provision hereof be waived or amended, except in writing duly signed
by authorized representatives of Company and Client. A waiver with respect to one event shall not be construed as continuing, or
as a bar to or waiver of any right or remedy as to subsequent events. No failure or delay in the exercise, by either Party, of
any right, remedy, power .or privilege hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof.


 


6.9           Cumulative
Remedies; Binding Effect. The rights, remedies, powers and privileges herein provided are cumulative and not exclusive
of any rights, remedies, powers and privileges provided by law or in equity. This Agreement shall be binding upon and inure to
the benefit of the Parties hereto and their respective successors and permitted assigns.


 


6.10         No
Joint Venture. The sole relationship between the Parties is that of independent contractors. Nothing in this Agreement is intended
to or shall be construed to create a strategic business, joint venture, agency, sales representative or employment relationship
between the Parties. Neither Party shall make any representations, warranties or covenants, or assume or create any obligations,
on the other Party’s behalf. Each Party shall be solely responsible for the actions of its respective employees, agents and
representatives.


 


6.11         Severability.
Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, and no other provisions of this Agreement shall be affected or
impaired thereby.


 


6.12         No
Third Party Beneficiaries. This Agreement is intended for the sole and exclusive benefit of the Parties hereto and is not intended
to confer any benefit upon any other Persons whatsoever. Except for the Parties hereto, no other Person shall have any right to
rely upon this Agreement for any purpose whatsoever.


 


6.13         Independent
Review. Each party acknowledges and agrees that it has had the opportunity to seek the advice of independent legal counsel and
has read and understood all of the terms and conditions of this Agreement.


 


6.14         Entire
Agreement. This Agreement constitutes the sole and entire understanding between the Parties with respect to the subject matter
hereof and supersedes all prior agreements and understandings (whether oral or written) between the Parties with respect to such
subject matter.


 


IN WITNESS WHEREOF, each of the Parties hereto has caused this
instrument to be duly executed as of the day and year first above written.


 





	Client	 	Company
	 	 	 
	By:	/s/ Jade Koyle	 	By:	/s/ Chris Richarde
	 	 	 
	Name:	Jade Koyle	 	Name: 	Chris Richarde 
	 	 	 
	Title:	EVP Marketing  	 	Title:	 President 







  








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