Unassociated Document


    

      AGREEMENT

      


      This
        agreement (the “Agreement”), dated as of July 29th
        2003
        (the “Effective Date”), by and between PointMatch USA Inc., a Delaware
        corporation located at 1333 Broadway, 9th
        Floor,
        New York, New York 10018 (“PointMatch”), and IncrediMail Ltd., an Israeli
        corporation located at 2 Kaufman St., Tel-Aviv, Israel
        (“IncrediMail”).

      


      RECITALS

      


      WHEREAS,
        PointMatch owns, designs, operates, maintains and hosts web sites specializing
        in providing matchmaking services, including www.cupidusa.com
        (“CupidUSA”); and

      


      WHEREAS,
        IncrediMail operates an advanced, feature-rich email program (hereinafter
        “Software”) and a website (“IncrediMail.com”); and

      


      WHEREAS,
        IncrediMail and PointMatch would like to cooperate as set forth in this
        Agreement;

      


      NOW,
        THEREFORE, in consideration of the foregoing, and for other good and valuable
        consideration, the receipt and sufficiency of which are hereby acknowledged,
        the
        parties agree as follows:

      


      
        	
                1.

              	
                Operating
                  a Joint web site.
                  PointMatch, through CupidUSA, will provide content services in
                  the
                  matchmaking field to IncrediMail users, under the names INcrediDating.com
                  and/or INcrediDate.com while outwardingly adapting the graphical
                  external
                  envelope of IncrediMail (a technique professionally known as
                  “co-branding”). Hereinafter the joint site will be referred to as the
                  “Custom Site”. It is agreed and acknowledged that IncrediMail is and shall
                  remain, during and after the term of this Agreement, the sole owner
                  of the
                  domain names “IncrediDating.com” and “IncrediDate.com” and that PointMatch
                  shall not obtain any rights in or to the domain names, including
                  without
                  limitations with respect to any goodwill created during the term
                  of this
                  Agreement. It is further agreed that, subject to Section 15 of
                  this
                  Agreement (Exclusivity and Non-Compete), after termination of this
                  Agreement for any reason whatsoever, IncrediMail may utilize the
                  “IncrediDating.com” and “IncrediDate.com” domains and names in any way it
                  sees fit, including, without limitations, as a site which provides
                  content
                  services in the matchmaking field.

              


      

      


      
        	
                2.

              	
                Domain
                  names.
                  IncrediMail agrees that from the termination of this Agreement,
                  and for a
                  period of twelve (12) month thereafter, in case it is interested
                  in
                  selling, leasing or otherwise disposing of or if it receives a
                  bona-fide
                  offer to sell, lease or otherwise dispose of each and/or both of
                  the
                  Domain Names it shall provide PointMatch with a right of first
                  refusal to
                  acquire and/or lease each and/or both of the Domain Names for the
                  offered
                  price. Such right of first refusal should be exercised by PointMatch
                  within 30 days from the date it was received by
                  PointMatch.

              


      

      


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      Notwithstanding
        the above, from the termination of this Agreement and for a period of twelve
        (12) month thereafter, members who will try to access the Custom Site through
        IncrediDating.com or INcrediDate.com, will be automatically forwarded to
        CupidUSA.com

      


      
        	
                3.

              	
                PointMatch
                  will be responsible for designing, developing and integrating the
                  Custom
                  Site within IncrediMail.

              


      

      


      
        	
                4.

              	
                PointMatch
                  will be responsible for managing, hosting and maintaining the Custom
                  Site,
                  under PointMatch’s servers, as well as for hardware infrastructure,
                  software licenses and technical support. IN carrying out such
                  responsibilities PointMatch shall use reasonable efforts, and any
                  such
                  decision or action shall be taken by PointMatch at its sole discretion.
                  IncrediMail shall have a right to veto the content and graphics
                  of the
                  Custom Site. In the event that IncrediMail uses its veto right,
                  it shall
                  notify PointMatch, in writing, specifying the content and/or graphics
                  which are to be changed on the Custom Site. PointMatch shall, immediately
                  upon receipt of such notice, change the specified materials on
                  the Custom
                  Site.

              


      

      


      
        	
                5.

              	
                PointMatch
                  will provide daily email and a U.S. telephone number for customer
                  support
                  to the Custom Site’s users.

              


      

      


      
        	
                6.

              	
                PointMatch
                  will provide IncrediMail with an online monitoring system to follow
                  all
                  the Custom Site’s activities.

              


      

      


      
        	
                7.

              	
                IncrediMail
                  will create a link to the Custom Site on the main tool bar on
                  IncrediMail.com

              


      

      


      
        	
                8.

              	
                IncrediMail
                  will incorporate the Custom Site’s “Quick Search Bar” on IncrediMail.com’s
                  main web page and Gallery pages.

              


      

      


      
        	
                9.

              	
                During
                  the launch campaign, IncrediMail will promote the Custom Site on
                  IncrediMail.com and will exercise its reasonable efforts to reach
                  at least
                  15,000 clicks per day from the official Launch Date (as defined
                  hereinafter), and for a period of 14 days. Thereafter, IncrediMail
                  will
                  promote the Custom Site on IncrediMail.com and will exercise its
                  reasonable efforts to reach at least 10,000 clicks per day. The
                  scope and
                  content of the promotion in IncrediMail.com shall be subject to
                  the
                  approval of both sides. IncrediMail shall provide PointMatch with
                  online
                  monitoring system to follow the promotional activities (ad server
                  statistics).

              


      

      


      
        	
                10.

              	
                IncrediMail
                  will send a “Stand Alone” email in an agreed form to all its opt-in
                  members, introducing the new Custom
                  Site.

              


      

      


      
        	
                11.

              	
                IncrediMail
                  will promote the Custom Site regularly on its newsletters. The
                  scope and
                  content of such promotion shall be subject to IncrediMail’s sole
                  discretion.

              


      

      


      
        	
                12.

              	
                Sharing
                  of Revenues.
                  PointMatch and IncrediMail shall equally share the gross revenues
                  generated from the Custom Site, including without limitation, revenues
                  from subscriptions to and from advertising on the Custom Site (the
“Gross
                  Revenues”). For the avoidance of doubts, refunds made to customers and
                  credit card commissions shall be deducted from the Gross Revenues.
                  PointMatch shall provide IncrediMail with a complete and accurate
                  revenue
                  report in an acceptable form to IncrediMail not later than the
                  20th
                  day of the month following each calendar month, setting forth the
                  Gross
                  Revenue during the prior calendar month from all activities of
                  the Custom
                  Site. PointMatch shall, upon IncrediMail’s request, furnish it with
                  additional reports. PointMatch shall, within 20 days of the end
                  of each
                  month pay IncrediMail its share (50%) in the Gross
                  Revenues.

              


      

      


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      It
        is
        agreed that for a period of up to eighteen (18) months after the termination
        of
        this Agreement for any reason whatsoever. PointMatch shall continue paying
        IncrediMail its share of the subscription fees received from Subscribers
        and
        shall continue providing IncrediMail with the reports described in the
        proceeding paragraph. 

      


      “Subscribers”
        shall mean members who subscribed through the Custom Site and are paying
        PointMatch subscription fees, and as long as their subscription (either to
        the
        Custom Site or to any other PointMatch Site) is in force.

      


      
        	
                13.

              	
                Advertisement.
                  Both sides will agree together on advertisement policy on the custom
                  site.
                  This includes both advertisement content and revenue
                  share.

              


      

      


      
        	
                14.

              	
                Ownership
                  of Intellectual Property.
                  The parties agree and acknowledge that all software applications,
                  (including without limitation the source code), the contents, information
                  of Subscribers, Members and other parties visiting the Custom Site
                  (together: “PointMatch IP”) is and at all times shall remain the property
                  of PointMatch and that IncrediMail shall have no lawful demand
                  to
                  PointMatch IP.

              


      

      


      
        	
                15.

              	
                Exclusivity
                  and Non-Compete. During
                  the Term of the Agreement, and for the 12 months thereafter, IncrediMail
                  shall refrain from integrating or promoting a site similar in nature
                  to
                  the Custom Site for any other online service that may be substantially
                  similar to the dating service. Subject to the Change of Control
                  provisions
                  in Section 16 below, IncrediMail shall not compete with PointMatch,
                  for a
                  period of 12 months following the termination of the business relationship
                  between the parties.

              


      

      


      
        	
                16.

              	
                Term
                  of the Agreement.
                  This Agreement shall begin and become effective for an initial
                  period of
                  four (4) months from the date the Custom Site first goes on the
                  Internet
                  (the “Launch Date” which will be not later then August 31, 2003) as a live
                  site available to all. Thirty days before the end of this initial
                  term,
                  the parties agree to evaluate and hold negotiations in good faith
                  in
                  respect of a possible extension of the relationship established
                  in the
                  Agreement.

              


      

      


      It
        is
        agreed that in the event of a Change of Control in IncrediMail or PointMatch
        occurs, this Agreement, including without limitation any non-competition
        undertaking contained herein and section 2 (domain names) may be terminated
        by a
        three days written notice.

      


      “Change
        in Control Event” means:

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      (i) a
        sale of
        all or substantially all of the assets of a company.

       

      (ii) a
        sale by
        the stockholders of a company of the voting stock of such company to another
        corporation or its subsidiaries that results in the ownership by such
        corporation and/or its subsidiaries of fifty percent (50%) or more of the
        combined voting power of all classes of the voting stock of the Company entitled
        to vote;

       

      (iii) a
        merger
        or consolidation in which a company is not the surviving corporation (other
        than
        a merger or consolidation in which stockholders of such company immediately
        before the merger or consolidation have, immediately after the merger or
        consolidation, greater than fifty percent (50%) of the combined voting power
        of
        all classes of the voting stock of such company entitled to vote);

       

      (iv) any
        transaction or series of related transactions in which in excess of fifty
        percent (50%) of the combined voting power of all classes of the voting stock
        of
        a company entitled to vote is transferred.

      


      
        	
                17.

              	
                Independent
                  contractors.
                  The parties acknowledge and agree that they are dealing with each
                  other
                  hereunder as independent contractors. Nothing contained in this
                  Agreement
                  shall be interpreted as constituting either party the agent,
                  representative, joint venture, employee or partner of the other
                  party or
                  as conferring upon either party the power of authority to bind
                  the other
                  party in any transaction with third
                  parties.

              


      

      


      
        	
                18.

              	
                Confidentiality.The
                  parties agree and undertake to keep confidential any information
                  confidential and/or proprietary information to which they might
                  be
                  respectively disclosed during the Term, and not to make any adverse
                  usage
                  therein.

              


      

      


      
        	
                19.

              	
                
                  DISCLAIMER
                    OF LIABILITY. NEITHER PARTY SHALL IN ANY CASE BE LIABLE FOR SPECIAL,
                    INCIDENTAL, CONSEQUENTIAL, INDIRECT OR OTHER SIMILAR DAMAGES
                    ARISING FROM
                    BREAH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, OR ANY OTHER
                    LEGAL
                    THEORY EVEN IF THEY OR THEIR AGENT HAS BEEN ADVISED OF THE POSSIBILITY
                    OF
                    SUCH DAMANGES OR LOSS. IN NO EVENT SHALL THE TOTAL AGGREGATE
                    LIABILITY OF
                    EITHER PARTY TO THE OTHER, OR ANY PART CLAIMING ANY RIGHT BY
                    OR THROUGH
                    EITHER PARTY, FOR ANY REASON WHATSOEVER EXCEED THE SUM OF THE
                    PAYMENTS
                    MADE BY THE ONE PARTY TO THE OTHER UNDER THIS
                    AGREEMENT.

                

              


      

      


      
        	
                20.

              	
                Governing
                  law.
                  This Agreement shall be subject to and governed in all respects
                  by the
                  statues and laws of the State of Israel without regard to the conflicts
                  of
                  laws principles thereof. Jurisdiction in respect of any matter
                  relating to
                  Agreement shall be exclusively vested in the competent courts of
                  the Tel
                  Aviv District in Israel.

              


      

      


      
        	
                21.

              	
                Entire
                  agreement.
                  This Agreement constitutes the entire agreement and understanding
                  between
                  the parties and integrates all prior discussions between them related
                  to
                  its subject matter. No modification of any of the terms of this
                  Agreement
                  shall be valid unless in writing and signed by an authorized
                  representative of each party.

              


      

      


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

         

      

      
        	 	
                22.

              	
                Assignment.
                  Neither
                  party shall assign or otherwise transfer its right and/or obligations
                  under this Agreement to other entity without the prior written
                  consent of
                  the other party.

              


      

      


      IN
        WITNESS HEREOF, the parties have duly executed this Agreement as of the date
        first written above.

      


      
        	
                IncrediMail
                  Ltd. /s/ Yaron Adler

              	
                PointMatch
                  USA Inc. /s/ Nimrod Lev

              
	 	 
	
                By:
                  Yaron Adler

              	
                By:
                  Nimrod Lev

              
	 	 
	
                Title:
                  CEO

              	
                Title:
                  CEO

              


      

       

      

        PointMatch
          USA Inc. Email: info@pointmatch.com
          Tel:
          212.868.4377 Fax: 212.868.0804