Itract Inc – ‘S-4/A’ on 1/24/01 – EX-10.2

On:  Wednesday, 1/24/01, at 1:13pm ET   ·   Accession #:  950170-1-89   ·   File #:  333-40762

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Pre-Effective Amendment to Registration of Securities Issued in a Business-Combination Transaction   —   Form S-4
Filing Table of Contents

Document/Exhibit                   Description                      Pages   Size 

 1: S-4/A       Pre-Effective Amendment to Registration of           294   1.14M 
                          Securities Issued in a                                 
                          Business-Combination Transaction                       
 2: EX-10.1     Agreement                                              4     12K 
 3: EX-10.2     Rental Api Agreement                                   2     14K 
 4: EX-10.3     Moore Business Communications Service Agreement        6     27K 
 5: EX-10.4     Material Contract                                      4     17K 
 6: EX-10.5     Employment Agreement                                  10     30K 
 7: EX-10.6     Material Contract                                      2     11K 
 8: EX-23.4     Consent of Deloitte & Touche                           1      8K 
 9: EX-23.5     Consent of Anchin, Block & Achin LLP                   1      7K 

EX-10.2   —   Rental Api Agreement

EX-10.2
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                                                                    EXHIBIT 10.2

Rental API Agreement

Agreement, dated as of June 28, 2000, between NetCreations, Inc., a New York    
corporation having a place of business at 379 West Broadway, New York, New York 
10012 ("NetCreations") and Itract, LLC, a Delaware limited liability company    
with a place of business at 18 West 18th Street, New York, New York 10011       
("ITL").                                                                        

WHEREAS, NetCreations and ITL have entered into a list brokering agreement,     
dated as of September 29, 1999 (the "Broker Agreement"); and                    

WHEREAS, in connection with ITL's list brokering activities, ITL desires to use 
NetCreations' Rental Application Program Interface (the "Rental API");          

NOW, THEREFORE, in consideration of the mutual promises herein contained, the   
parties agree as follows:                                                       

1.       NetCreations shall make available the Rental API in connection with    
       ITL's brokering activities under the Broker Agreement, and ITL agrees
        that its use of the Rental API shall be, subject to the limitations of
        warranty and liability contained in this Agreement, and such different
    or other terms and conditions as NetCreations shall make generally
 applicable from time to time to brokers' use of the Rental API.
         NetCreations may discontinue ITL's use of the Rental API at any time in
       its discretion and, where practicable, will give ITL thirty (30) days
prior written notice of the same. Subject to such right of    
        NetCreations, ITL's use of the Rental API shall immediately cease upon
      any termination of the Broker Agreement. Any rights or privileges of
ITL to use of the Rental API shall be non-transferable and    
non-assignable.                                               

2.       NETCREATIONS PROVIDES THE RENTAL API, AND ITL AGREES THAT ANY USE OF   
        THE RENTAL API IS, ON AN "AS IS" BASIS. NETCREATIONS MAKES NO WARRANTY
        AS TO THE ACCURACY OR COMPLETENESS OF ANY INFORMATION OBTAINED THROUGH
        THE RENTAL API, THE INTEGRITY OF ANY OF ITL'S (OR ITL'S CLIENT'S) DATA
         USED IN CONJUNCTION WITH THE RENTAL API, OR THE ADEQUACY OR CAPACITY OF
 THE RENTAL API TO ATTAIN SOME OR ALL OF ITL'S OR ITL'S CLIENT'S
        OBJECTIVES OR THAT THE RENTAL API SHALL OPERATE UNINTERRUPTED OR ERROR
        FREE. THE USE OF THE RENTAL API IS FURTHER SUBJECT TO CERTAIN HARDWARE
   AND SOFTWARE REQUIREMENTS, WHICH INFORMATION ITL MAY REQUEST FROM
NETCREATIONS.                                                 

3.       NETCREATIONS MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED
       -- INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE,
NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PUROSE, AND ANY 
         WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE --
    ABOUT ITS PRODUCTS OR SERVICES, INCLUDING THE POSTMASTERDIRECT.COM
        SERVICE, THE RENTAL API AND THE PERFORMANCE OF ANY MAILINGS MADE BY IT
     ON BEHALF OF ITL OR ITL'S CLIENTS, OR THAT THE POSTMASTERDIRECT.COM
   SERVICE, THE RENTAL API OR OTHER WEBSITES OR SERVICES OPERATED BY
     NETCREATIONS WILL OPERATE UNINTERRUPTED, SECURE OR ERROR FREE. THIS
AGREEMENT IS NOT FOR A SALE OF GOODS.                         

4.       IN NO EVENT SHALL ANY PARTY HERETO BE LIABLE TO ANY OTHER PARTY TO THIS
   AGREEMENT FOR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL OR
    PUNITIVE DAMAGES, INCLUDING LOSS OF DATA, LOSS OF SERVICE, LOSS OF
        PROFITS OR LOSS OF GOODWILL, WHETHER ARISING IN CONTRACT, TORT, STRICT
    LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL NETCREATIONS BE

EX-10.2
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       LIABLE TO ITL, OR ANY PARTY MAKING A CLAIM OR DEMAND AGAINST ITL, FOR
 MORE THAN THE AMOUNT OF MONIES RECEIVED BY NETCREATIONS FOR THE
         PARTICULAR EMAILING FROM WHICH THE CLAIM AROSE. THIS LIMIT OF LIABILITY
      SHALL NOT BE EXCEEDED, NOTWITHSTANDING THE NUMBER OF SUCH CLAIMS AND
DEMANDS. THIS LIMITATION OF LIABILITY SHALL BE EFFECTIVE      
 NOTWITHSTANDING THAT ITL'S AVAILABLE REMEDIES MAY FAIL OF THEIR
ESSENTIAL PURPOSE.                                            

5.       ITL agrees and acknowledges that the Rental API constitutes the        
confidential and proprietary information of NetCreations; that
NetCreations expended significant time, effort and expense in 
        developing it; and that the Rental API confers a competitive advantage
       upon NetCreations. Accordingly, ITL shall hold in confidence, and use
    only for purposes of carrying out its broker obligations under the
        Broker Agreement, all information concerning the Rental API, including
         without limitation the Rental API syntax. ITL shall restrict disclosure
    of such information only to its employees with a need to know. ITL
        shall obtain no proprietary interest or other rights in the Rental API
         by virtue of this Agreement or its use of the Rental API. ITL agrees to
     return to NetCreations, immediately upon NetCreations' request, all
        materials concerning the Rental API that had been furnished to it, and
        to certify the same to NetCreations. ITL agrees that damages shall not
       be an adequate remedy in the event of any breach or threatened breach
  of its obligations regarding the use of the Rental API, and that
         NetCreations shall be entitled to injunctive relief, in addition to its
     other rights and remedies, in the event of any threatened or actual
       breach of such obligations, without having to post bond in connection
therewith.                                                    

6.       This Agreement, together with such other terms and conditions and/or   
    rules or policies instituted by NetCreations concerning use of the
  Rental API, constitutes the entire Agreement between the parties
    regarding use of the Rental API and supersedes all oral or written
    agreements, either entered prior to or contemporaneously with this
        Agreement, which may concern use of the Rental API. This Agreement may
     not be modified except by written agreement dated subsequent to the
      date of this Agreement and signed by both parties. If any portion of
    this Agreement is deemed unenforceable, then the remainder of this
         Agreement shall be deemed severable, and shall remain in full force and
effect.                                                       

IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on    
their behalves by their respective duly authorized officers as of the date first
set forth above.                                                                

NETCREATIONS, INC.                             ITRACT, LLC                      

By: /s/ Scott Wolf                             By: /s/ Anthony Peluso           
------------------                             ----------------------     
Name: Scott Wolf                               Name: Anthony Peluso             
Title: Sr. VP                                  Title: VP - Marketing            

Dates Referenced Herein

				Referenced-On Page
This ‘S-4/A’ Filing		Date		First		Last			Other Filings
Filed on:		1/24/01							None on these Dates
		6/28/00		1
		9/29/99		1
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