UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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BIGFOOT PARTNERS, L.P.,
Plaintiff,

v.

CYBER PROMOTIONS, INC. and SANFORD WALLACE,
Defendant.

97 CIV 7397

Judge Jones

CONSENT ORDER

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WHEREAS, on October 6, 1997, plaintiff, Bigfoot Partners, L.P. ("Bigfoot"), commenced this action against defendants, Cyber Promotions, Inc. ("Cyber Promotions") and Sanford Wallace ("Wallace"), alleging, among other things, defendants' unauthorized use of Bigfoot's corporate name, its registered mark and its registered Internet domain "bigfoot.com", and

WHEREAS, defendants have denied any liability to plaintiff, and

WHEREAS, plaintiff and defendants have agreed to amicably adjust and resolve their differences and to settle all claims made by plaintiff in this action, as well as any counterclaims defendant may have against plaintiff arising out of the subject matter of this action,

WHEREAS, the parties and their respective counsel respectfully desire that the Court enter this order to effectuate the terms of the parties' settlement;

NOW, THEREFORE, upon the Verified Complaint herein dated October 6, 1997,

and all other papers and proceedings herein, and upon the request of all of the parties hereto and their respective counsel, and it appearing that this Order is necessary to effectuate the settlement of this action, it is hereby

ORDERED, that defendants Cyber Promotions, Inc. and Sanford Wallace, their officers, agents, servants, employees and any person or entity acting on behalf of defendants who shall receive notice of this Order, are permanently enjoined from:

(1) Sending or causing to be sent by their computers or servers or computers or servers owned by others any unsolicited Internet electronic mail ("e-mail") message bearing any reference to plaintiff, plaintiff's registered name, the domain name or IP addresses containing the designation bigfoot.com, or any other domain managed by plaintiff of which defendants have received prior written notice, whether in the text, return address or header of such e-mail message, and whether such e-mail originates with defendants or any other source;

(2) Knowingly, sending, distributing or causing to be sent or distributed any unsolicited Internet e-mail ("SPAM") to any person or entity whose Internet e-mail is routed through plaintiff's computers or servers;

(3) Distributing, whether orally or in writing, an Internet e-mail address which includes the domain name or IP addresses containing the designation bigfoot.com or any other domain name managed by plaintiff of which defendants have received prior written notice, or any list thereof;

(4) Recommending or causing others to recommend, whether orally or in writing, that any person, party or entity use or utilize plaintiff's business or registered name, the domain name or IP addresses containing the designation bigfoot.com or any other domain managed by plaintiff of which defendants have received prior written notice, for any purpose not expressly authorized by plaintiff in writing, including but not limited to the distribution of SPAM;

(5) Including plaintiff's business and registered name, the domain name or IP addresses containing the designation bigfoot.com, or any other domain managed by plaintiff of which defendants have received prior written notice, in any software or data owned or distributed by defendants, including but not limited to any software which automatically inserts "bigfoot.com" or any other domain managed by plaintiff of which defendants have received prior written notice into the header of unsolicited e-mail;

(6) Assisting, aiding or abetting any other person or entity to engage in any of the activities or conduct prohibited by this Order; and, it is further

ORDERED, that subsequent to the entry of this Order, should defendants Cyber Promotions, Inc. and Sanford Wallace, their officers, agents, servants, employees or any person acting on behalf of defendants, knowingly, willfully or through gross negligence violate or permit the violation of any of the provisions of this Order, plaintiff shall be entitled to liquidated damages in the amount of $10,000 (Ten Thousand and no/100 Dollars) for each day or part thereof for which any violation shall exist, and that plaintiff shall be entitled to a writ of execution and other process to collect any sums due; and it is further

ORDERED, that the Court shall retain jurisdiction and venue over this matter for the purpose of enforcing and resolving any dispute concerning or arising out of this Order and any alleged violation thereof, including plaintiff's right to recover any liquidated damages arising out of any alleged breach or violation of this Order; and it is further

ORDERED, that all claims and counterclaims of the parties arising out of the subject matter of this action, which are not expressly disposed of by this Order shall be and the same are hereby dismissed with prejudice.

Dated: March____, 1998

New York, New York

So ordered:

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