Sales Agent Agreement

Exhibit 10.20


EARTHLINK NETWORK
SALES AGENT AGREEMENT


THIS SALES AGENT AGREEMENT is made as of the Effective Date set forth below among EarthLink Network, Inc., a Delaware corporation ("EarthLink") and the Agent named below.


AGREEMENT DATA:


1. Agent: Entertainment Boulevard, Inc.


2. Effective Date: March 11, 1999


3. Notice information per Section 9:


(a) If intended for Agent: (b) If intended for EarthLink:
Company Entertainment Boulevard, Inc.
Email Address Stephen@entertainmentblvd.com EarthLink Network, Inc.
Address: 4052 Del Rey Avenue Suite 108 3100 New York Drive
Marina Del Rey, CA 90292 Pasadena, California 91107
Attn: Stephen Brown Attn: Joel Felix
Facsimile No: (310) 578-6304 Facsimile No.: (626) 296-4176
Phone No: (310) 578-5404 4. Applicable Exhibits:


INITIALS


[ILLEGIBLE] | A. Definitions


[ILLEGIBLE] | B. EarthLink Trademarks


N/A | N/A C. EarthLink General Guidelines for Use of Marks


[ILLEGIBLE] | D. Special Terms


THE REFERENCED EXHIBITS ARE A PART OF THIS AGREEMENT.


5. Total pages in this Agreement: __ 10_(ten) __ (including this cover page).


SIGNATURES:


Agent and EarthLink acknowledge that they have read and fully understand this Agreement and hereby agree to its terms. In witness whereof, the parties have executed this Agreement under seal.


EARTHLINK: AGENT:


/s/ Julie S. Mantis /s/ Stephen Brown ------------------------------------------- -------------------------------------------------- (Signature of Authorized Representative) (Signature of Authorized Representative if a corporation)


Julie S. Mantis Stephen Brown -------------------------------------------- -------------------------------------------------- (Printed Name of Authorized Representative) (Print Name of Authorized Representative)


VP, Sales CEO -------------------------------------------- -------------------------------------------------- (Title) (Title)


1. DEFINITIONS. Certain terms used in this Agreement have the meanings defined on the Definitions Exhibit hereto.


2. LICENSE GRANT; ORDERS.


2.1 NON-EXCLUSIVE LICENSE. EarthLink hereby grants to Agent royalty free, non-exclusive and non-transferable license during the Term to market and solicit orders for the Services in the Territory (the "License"). To the extent that Agent receives any Licensed Material from EarthLink, the License shall include a royalty free, non-exclusive and non-transferable license during the Term to demonstrate the Licensed Material in connection with Agent's marketing and solicitation efforts hereunder.


2.2 ORDERS. All orders solicited by Agent are subject to approval and acceptance by EarthLink, which approval and acceptance shall be at EarthLink's sole discretion. EarthLink may reject any order for any reason.


2.3 PROHIBITION ON OTHER SALES OR LICENSE. Agent shall market and solicit orders for the Services only in accordance with the terms of this Agreement.


2.4 NO OTHER RIGHT. Agent shall have no right to distribute, sell or otherwise transfer any Licensed Material. Agent shall have no authority to accept any orders for the Services or otherwise on behalf of EarthLink or to bind EarthLink to any contract, agreement or other understanding, whether oral or written. To the extent that Agent possesses any Licensed Material, Agent shall not, nor shall it permit others to: reproduce or otherwise make copies of any portion of the Licensed Material or modify, reverse engineer, disassemble, decompile, or otherwise determine or attempt to determine or have or attempt to obtain access to, the source code or internal design of the Software or to create any derivative works based upon the Software. Nothing in this Agreement shall be construed as granting Agent any rights of any kind with respect to any portion of the Services or Licensed Material except as expressly and unambiguously set forth in this Agreement. All rights title and interest in and to, and ownership of, the Services and Licensed Material shall remain at all times exclusively with EarthLink and EarthLink's third-party licensors, as appropriate.


3. COMMISSIONS; MAINTENANCE OF RECORDS; AUDIT.


3.1 COMMISSIONS. As compensation for and in consideration of the services to be rendered hereunder by Agent, EarthLink shall pay to Agent the commissions outlined on the Special Terms Exhibit (the "Commissions"). EarthLink shall pay the Commissions on a monthly basis within forty-five (45) days of the end of each calendar month. Each payment shall include therewith a reasonably detailed statement by EarthLink setting forth each closed sale on which Commissions are paid.


3.2 COSTS AND EXPENSES. Agent shall be responsible for the costs and expenses of performing its duties and obligations hereunder and shall not be entitled to reimbursement from EarthLink for same.


3.3 MAINTENANCE OF RECORDS; AUDIT. Each party shall maintain proper books and records so as to allow for the verification of amounts paid or owed to the other party. Each party agrees to allow the other party's auditors to audit and analyze its applicable records ensure compliance with all terms of this Agreement. Any such audit shall be permitted by the party to be audited, during normal business hours, upon at least fifteen (15) days notice given in accordance with Section 9. The cost of this audit shall be borne by the auditing party, unless the results identify a bona fide underpayment to the auditing party by more than five percent (5%) of the total amount paid or owed during the audited period or over-reporting by the audited party resulting in overpayment to the audited party by more than five percent (5%) of the total amount paid or owed during the audited period, in which case the cost of the audit shall be borne by the audited party.


4. REPRESENTATIONS AND WARRANTIES.


4.1 EARTHLINK AUTHORITY. EarthLink represents and warrants to Agent that (i) EarthLink owns or has a valid license to all portions of the Services and Licensed Material and to EarthLink Trademarks, (ii) EarthLink has the full power and authority to enter into this Agreement and grant the License, and (iii) EarthLink is a functional Internet access provider (the "Authority Warranty").


4.2 EARTHLINK MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND WITH RESPECT TO THE SERVICES OR THE SOFTWARE, WHETHER EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW. EARTHLINK EXPRESSLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. EARTHLINK DOES NOT WARRANT THAT THE SERVICES OR SOFTWARE ARE ERROR-FREE OR THAT OPERATION OF THE SERVICES OR SOFTWARE OR INTERNET ACCESS WILL BE SECURE, UNINTERRUPTED OR ERROR-FREE.


4.3 TRADEMARK NON-INFRINGEMENT WARRANTY. EarthLink warrants to Agent that the EarthLink Trademarks do not infringe upon the patents, copyrights, trademarks or other intellectual property rights of any third party (the "Trademark Non-infringement Warranty").


4.4 PROHIBITION ON EXTENTION OF WARRANTIES. Agent shall not make or pass on, or attempt to make or pass on, to any third party any representation or warranty on behalf of EarthLink or its third-party licensors.


4.5 REMEDY FOR BREACH OF TRADEMARK NON-INFRINGEMENT WARRANT. In the event any EarthLink Trademark fails to conform to the Trademark Non-infringment Warranty, Agent shall immediately upon notice from EarthLink cease use of such alleged infringing EarthLink Trademark. In such event, Earth-Link, at its sole option, shall either obtain a valid license for Agent to use such EarthLink Trademark or select an alternative non-infringing mark which is similar as possible to the unavailable EarthLink


Trademark, and that new mark shall then be governed by the terms of this Agreement as an Earth-Link Trademark.


4.6 INDEMNIFICATION FOR THIRD PARTY INFRINGEMENT CLAIMS. EarthLink agrees to indemnify, and hold harmless, Agent from and against all reasonable costs and expenses related to claims made by third parties against Agent that the EarthLink Trademarks infringe the copyrights, trademarks or service marks or other intellectual property rights of such third parties.


4.7 LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, AND EXCEPT FOR THE OBLIGATIONS SET FORTH IN SECTION 10, NEITHER PARTY SHALL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES, INCLUDING LOST PROFITS, EVEN IF SUCH PARTY HAS BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.


5. MARKETING OF THE SERVICES.


5.1 PROMOTION. Agent shall use its best efforts to promote, advertise and market the Services promote the goodwill of EarthLink and the market reputation of EarthLink's products and services. Agent shall at all times conduct itself in a manner which promotes EarthLink's best interests and shall refrain from any and all conduct which in any way disparages EarthLink, its services or its products. Agent shall make no representations regarding the Services which exceed those made by EarthLink in its promotional materials. In the event that EarthLink provides Agent with promotional and other marketing material, Agent shall use reasonable efforts to insure that such materials are distributed in such a way as to maximize the benefit to EarthLink with respect to the Services.


5.2 AGENT OBLIGATIONS. Agent agrees to perform the following activities:


5.2.1 To participate in such training courses and other instructional programs which EarthLink may, from time to time, require;


5.2.2 To provide written notice to EarthLink of any prospective customer for the Services;


5.2.3 To make available at all times an Agent representative to serve as the principal contact between Agent and EarthLink and to notify EarthLink in writing of any change in such representative;


5.2.4 To meet the Minimum Production Standards set forth in the Special Terms Exhibit;


5.2.5 To meet with EarthLink and its representatives from time to time, telephonically or in person, to discuss Agent's performance hereunder, the marketing of the Services, and any other matter which EarthLink reasonably considers to be related to Agent and its obligations hereunder;


5.2.6 To provide EarthLink with all necessary ...