EXHIBIT 99.2
[CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTIONS OF THIS DOCUMENT HAVE
BEEN REDACTED AND HAVE BEEN FILED SEPARATELY WITH THE COMMISSION.]
TRAINING AND MARKETING SERVICES AGREEMENT
THIS TRAINING AND MARKETING SERVICES AGREEMENT ("Agreement") is
entered into as of the 29/th/ day of September, 2000, between XxxxxxxxXxx.xxx,
Inc., a Nevada corporation ("PurchasePro") and Gateway Companies, Inc., a
Delaware corporation ("Gateway").
WITNESSETH:
WHEREAS, PurchasePro owns and operates a proprietary web-based
electronic marketplace to enable buyers and sellers of products and services to
effect transactions via the Internet (the "Global Marketplace") and offers for
sale products and services in connection therewith;
WHEREAS, Gateway is a direct marketer of personal computers and
related products and services which also offers diversified products and
services, such as software, peripherals, Internet access services, training
programs, support programs and financing programs, including through its Gateway
Country stores;
WHEREAS, PurchasePro desires to purchase certain training and
marketing services and products from Gateway for use in connection with its
Global Marketplace, and Gateway desires to provide such services on the terms
and conditions set forth herein;
NOW, THEREFORE, the parties hereby agree as follows:
1. Training Services. Gateway shall provide Phase I Training
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Services and Phase II Training Services (each defined below,
and collectively the "Training Services") on behalf of
PurchasePro to individuals and entities using or interested in
using PurchasePro products and services, including
PurchasePro's Global Marketplace ("Users"). Phase I Training
Services shall be delivered by Gateway to PurchasePro as soon
as practicable upon execution of this Agreement, and Phase II
Training Services shall be delivered to PurchasePro from time
to time during the term of this Agreement as set forth below.
A. Phase I Training Services. As soon as practicable upon
execution of this Agreement, Gateway shall provide
PurchasePro with each of the following Training
Services ("Phase I Training Services"): (i) development
of content to be used in the provision by Gateway of
Training Services hereunder, and training materials
startup services to prepare all necessary facilities
and properties of Gateway for use in connection with
the performance by Gateway of its obligations hereunder
with respect to Training Services to be rendered to
Users, and (ii) Gateway Country store collateral
development services to enable Gateway to provide
Training Services to Users in its Gateway Country
stores; provided, however, that in no event shall the
retail value of Phase I Training Services to be
provided by Gateway hereunder exceed $[CONFIDENTIAL
MATERIAL REDACTED AND FILED SEPARATELY WITH THE
COMMISSION].
B. Phase II Training Services. During the term of this
Agreement, Gateway shall provide PurchasePro with each
of the following Training Services ("Phase II Training
Services"): (i) classroom training and e-commerce
education seminars for PurchasePro products and
services through Gateway Country store locations in the
United States, the Internet and other computer-based
delivery methods, (ii) training
of Users in, and display and demo PurchasePro's
products and services in, Gateway Business Centers in
Gateway Country stores throughout the world, and (iii)
services in five (5) different languages, localized by
Gateway. Phase II Training Services shall be rendered
by Gateway pursuant to the following process: (a)
PurchasePro shall provide statements of work to Gateway
from time to time identifying the Training Services to
be rendered and the time for delivery by Gateway of
such Training Services; (b) Gateway and PurchasePro
shall work in good faith to refine the proposed
statement of work, consistent with PurchasePro
requirements and Gateway's available and future
training resources and capabilities; (c) Gateway shall
use its best efforts to accommodate PurchasePro's
reasonable requests for Training Services; and (d) in
the event of any disagreement, the parties shall
resolve such disagreement in accordance with Section
16.
2. Marketing Services. Gateway shall provide marketing services
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to PurchasePro, which marketing services shall include Phase I
Marketing Services and Phase II Marketing Services (each
defined below, and collectively the "Marketing Services").
Phase I Marketing Services shall be delivered by Gateway to
PurchasePro as soon as practicable upon execution of this
Agreement, and Phase II Marketing Services shall be delivered
to PurchasePro from time to time during the term of this
Agreement as set forth below.
A. Phase I Marketing Services. As soon as practicable upon
execution of this Agreement, Gateway shall provide
PurchasePro with each of the following Marketing
Services ("Phase I Marketing Services"): (i) mutually
agreed upon marketing material concerning the Gateway
private-labeled e-commerce marketplaces powered by
PurchasePro (the "Marketplaces") to be sent by Gateway
in coordination with PurchasePro to small to medium-
sized business ("SMB") customers of Gateway provided
that any communications shall comply with Gateway's
Privacy Policy published on its web site, (ii)
preparation of Gateway's distribution systems for
inclusion of promotional literature pertaining to the
Marketplaces with the printed materials supplied SMB
systems to be shipped by Gateway, in the United States,
(iii) development services to add a logo and a link to
the Marketplaces on the Xxxxxxx.xxx web site and (iv)
an email blast to SMB customers of Gateway announcing
the development of the Gateway Marketplace. Purchase
Pro agrees to abide by Gateway's Privacy Policy with
respect to any and all marketing activities of Purchase
Pro to the clients set forth in (i), above.
B. Phase II Marketing Services. During the term of this
Agreement, Gateway shall provide PurchasePro with each
of the following Marketing Services ("Phase II
Marketing Services"): (i) inclusion of a desktop icon
for the Marketplaces on not less than [CONFIDENTIAL
MATERIAL REDACTED AND FILED SEPARATELY WITH THE
COMMISSION]. SMB systems shipped by Gateway worldwide,
(ii) inclusion of promotional literature concerning the
Marketplaces with the printed materials supplied for an
aggregate of not less than [CONFIDENTIAL MATERIAL
REDACTED AND FILED SEPARATELY WITH THE COMMISSION] SMB
systems shipped by Gateway, (iii) provision at all
times on the Xxxxxxx.xxx web site of a link to the
Marketplaces , (iv) one or more e-mail blasts to
registered SMB customers promoting the Marketplaces to
customers in Gateway's database who have opted in for
email marketing, and (v) advertisement of the
Marketplaces products and services in Gateway SMB
catalogues on a quarterly basis. This Agreement applies
to the activities of the parties in the United States
unless specifically provided otherwise. Phase II
Marketing Services shall be rendered by Gateway
pursuant to the following process: (a) PurchasePro
shall provide statements of work to Gateway from time
to time identifying the Marketing Services to be
rendered and the time for delivery by Gateway of such
Marketing Services; (b) Gateway and PurchasePro shall
work in good faith to refine the proposed statement of
work, consistent with PurchasePro requirements and
Gateway's available and
future training resources and capabilities; (c) Gateway
shall use its best efforts to accommodate PurchasePro's
reasonable requests for Marketing Services; and (d) in
the event of any disagreement, the parties shall
resolve such disagreement in accordance with Section
16.
3. Rates; Minimum and Maximum Value. All Training Services and
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Marketing Services rendered by Gateway hereunder shall be
rendered at Gateway's standard pricing with respect thereto as
described to PurchasePro by Gateway prior to the date hereof,
and the aggregate retail value of the services to be provided
by Gateway under this Agreement, in all cases at Gateway's
standard pricing, shall constitute not less than $40,000,000
in bona fide value, nor exceed the consideration allocated
thereto as set forth in Exhibit A.
4. Consideration.
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A. Phase I Warrant. As consideration for the Phase I
Training Services and Phase I Marketing Services,
PurchasePro shall issue to Gateway immediately upon
execution of this Agreement a warrant to purchase
425,314 shares of PurchasePro common stock pursuant to
a warrant in substantially the form attached hereto as
Exhibit B-1 (the "Phase I Warrant").
B. Phase II Warrant. As consideration for the Phase II
Training Services and Phase II Marketing Services,
PurchasePro shall issue to Gateway immediately upon
execution of this Agreement a warrant to purchase
574,686 shares of PurchasePro common stock pursuant to
a warrant in substantially the form attached hereto as
Exhibit B-2 (the "Phase II Warrant").
C. Warrant III. As additional consideration, PurchasePro
shall issue to Gateway immediately upon execution of
this Agreement, a warrant to purchase 500,000 shares of
Purchase Pro common stock pursuant to a warrant
substantially in the form attached hereto as Exhibit B-
3 (the "Marketplace Warrant").
5. Trademarks. The parties specifically recognize each other's
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right, title and interest in and to their respective trade names, trademarks,
service marks and related logos (the "Marks") which may be used hereunder, and
each party agrees that it will do nothing inconsistent with the other's
ownership, and that all use of the Marks shall inure to the benefit of and be on
behalf of the owner. Each party shall, at all times, make proper use of the
other's Marks and not take any action inconsistent with the owner's ownership,
including, but not limited to, obtaining prior written approval from the other
party as to any materials using that party's Marks. Neither party will modify or
alter the other's trademarks or logos without prior written consent, which may
be withheld in that party's sole discretion. Except to the extent necessary to
protect rights held by it prior to the Effective Date, neither party will in any
way or at any time dispute or attack the validity or harm or contest the rights
of the other party in or to any of its Marks. Upon expiration or termination of
this Agreement, each agrees to immediately cease the use of the other's Marks.
Each party authorizes the other to use its Marks for the purposes described in
this Agreement, provided that each party agrees that, with respect to the other
party's Marks:
(i) this is not a "trademark license" by which it is in
any way using the Marks to indicate origin of its
products or services;
(ii) it will not display the Marks in a negative light,
disparage them, or use them in connection with
immoral materials or any other way which would
denigrate any Xxxx;
(iii) its display of the Marks will be at the other party's
review and approval prior to distribution; and
(iv) it will include a standard trademark acknowledgment
statement in all materials.
6. Ownership of Work Product. Subject to the provisions of
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Section 10 relating to PurchasePro's proprietary information, PurchasePro
acknowledges that all worldwide rights, title and interest to all plans,
drawings, specifications, ideas, concepts, inventions, designs, sketches,
models, programs, software, reports or other tangible work product produced by
Gateway, its officers, directors, employees or consultants pursuant to this
Agreement, and all prior drafts, derivations or versions thereof, regardless of
whether such were incorporated into the Training Services ("Work Product"),
shall be and remain the sole and exclusive property of Gateway when produced and
Gateway shall be deemed the author thereof and the owner of all rights therein
including, without limitation, all copyright and trademarks.
7. Term. This Agreement, unless terminated sooner pursuant to
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Section 8, shall be for a term of two (2) years after the date hereof.
8. Termination Upon Default. If either party shall violate or
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breach any material term, condition or covenant contained herein and shall not
remedy such violation or breach within sixty (60) days after receipt of written
notice thereof from the other party, the party not in violation or breach may
terminate this Agreement, effective immediately upon written notice to the party
in violation or breach. Upon any such termination, both parties shall
immediately discontinue all use of all intellectual and other property of the
other party and return to the other party all copies of any written or
electronic information which is the property of PurchasePro. The following
Sections shall survive any expiration or termination of this Agreement: Sections
5, 6, 10, 11, 12, 16 and 17.
9. Warranties. Each party represents and warrants that it has all
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corporate power and authority to enter into and perform all obligations under
this Agreement.
10. Ownership of Intellectual Property. Gateway and PurchasePro
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each acknowledge and agree that the other owns and retains all right, title and
interest in any services, software products, intellectual property rights,
source code, documentation, any future modifications and all related materials
that may be provided by such party under the terms of the Agreement.
11. Confidential Information. Each party acknowledges that it may
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receive valuable trade and business secrets and other proprietary and
confidential information, including, without limitation, information about the
other party's business, products, equipment, systems, techniques and practices
(collectively, "Confidential Information") (for purposes of this Section 11, a
party receiving Confidential Information shall be referred to as a "Receiving
Party" and a party disclosing Confidential Information shall be referred to as a
"Disclosing Party"). The Receiving Party shall, and shall cause its employees
and agents to, strictly maintain the confidentiality of the Confidential
Information and not disclose, disseminate or otherwise give Confidential
Information to any other person, firm, organization or third party, except for
an employee or agent of Receiving Party who has a reasonable need to obtain
access and who has agreed in writing to not disclose, and not to use for any
other purpose, the Confidential Information. Notwithstanding the foregoing, (A)
the obligations of confidentiality set forth in this Section 11 with respect to
Confidential Information shall not apply to any information that: (i) is or
becomes publicly known without violation by Receiving Party; (ii) is already
known to Receiving Party without restrictions at the time of its disclosure by
Disclosing Party, as evidenced by the written records of Receiving Party; (iii)
after its disclosure to Receiving Party by Disclosing Party, is made known to
Receiving Party without restrictions by a third party having the right to do so;
or (iv) is legally required to be disclosed by Receiving Party pursuant to a
judicial order from a court of competent jurisdiction (provided that Receiving
Party promptly informs Disclosing Party of the requirement and affords
Disclosing Party a reasonable opportunity to contest the required disclosure),
and (B) neither party shall be restricted from making any disclosure of this
Agreement and the transactions contemplated herein to the extent required by
Federal or state securities laws or in connection with the requirements of the
Nasdaq National Market. The foregoing obligations of confidentiality shall
survive termination or expiration of this Agreement.
A. Public Statements. Except as required by law, neither party
shall publicly announce or disclose the existence of this
Agreement or its terms and conditions or advertise or release
any publicity regarding this Agreement without the prior
written consent of the
other party. In the case of Gateway, such consent must be
given by Gateway's Vice President of Corporate Communications.
B. Use of Customer Data. PurchasePro will not disclose to any
third party any information and data concerning Gateway
customers disclosed by Gateway to PurchasePro (to be known as
"Gateway Customer Information" and which shall be the
Confidential Information of Gateway) and will not use the
Gateway Customer Information to offer, sell or target
Gateway's customers as a group for any promotion or offer
except in furtherance of this Agreement or as part of a
general customer mailing, promotion or offer, not selecting or
identifying such customers as such in any such mailings,
promotions or offers. The obligations of PurchasePro set forth
in this Section 11(B) shall survive the termination of this
Agreement.
12. Limitations On Liability. NEITHER PARTY SHALL BE LIABLE TO THE
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OTHER PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR EXEMPLARY
DAMAGES OF ANY KIND OR AMOUNT, REGARDLESS OF LEGAL THEORY (INCLUDING TORT,
BREACH OF CONTRACT OR STRICT LIABILITY) ARISING OUT OF OR IN CONNECTION WITH THE
AGREEMENT. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES
ANY, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS OR
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES
ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
13. Force Majeure. Each party to the Agreement shall be excused
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from any delay or failure in its performance thereunder, other than for payment
of money, caused by any disruption or slow speed of the Internet, break-downs of
security or introduction of computer viruses (and the like) by third parties,
any labor dispute, government requirement, act of God, or any other cause beyond
its control. Such party shall use best efforts to cure any such failure or delay
in performance arising from a force majeure condition, and shall timely advise
the other party of such efforts.
14. Assignment. Neither party may assign this Agreement without
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the prior written permission of the other party (whether voluntarily by
operation of law or otherwise), not to be unreasonably withheld. Subject to the
foregoing, this Agreement shall be fully binding upon, inure to the benefit of
and be enforceable by the parties hereto and their respective successors and
assigns.
15. Waiver & Amendment. No party to the Agreement shall be deemed
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to have waived any rights under, or as the result of any default under or breach
of, the Agreement unless the waiver is set forth in a writing signed by the
party. Any waiver of any default or breach of the Agreement shall not be
construed to constitute a waiver of any other default or breach whether similar
or not.
16. Dispute Resolution. This Agreement shall be governed by and
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construed in accordance with the laws of the State of New York (without regard
to conflicts of laws principles). All disputes arising out of or in connection
with this Agreement shall be handled as follows: a representative of the party
who raises the dispute will notify the other party's representative in writing
of the dispute, and the non-complaining party will exercise good faith efforts
to resolve the matter as expeditiously as possible within ten (10) business
days. Failing such resolution, the matter shall be submitted to one senior
manager of each party for resolution by mutual agreement within ten (10)
business days. Failing such resolution, the matter shall be submitted to one
executive officer of each party for resolution by mutual agreement within thirty
(30) calendar days. Failing resolution by the parties' executive officers, the
dispute shall be submitted to arbitration in New York, New York under the Code
of Procedure of the National Arbitration Forum (NAF). The dispute shall be
decided by one neutral arbitrator selected by mutual agreement from the parties'
respective lists of three (3) nominees. Failing such agreement within twenty
(20) days, the NAF shall select the arbitrator, who shall have no authority to
award punitive or exemplary damages. If a party prevails on an entire claim, the
losing party shall pay all of the winning party's costs of arbitration,
including any arbitrator's fees. If neither party prevails entirely, the
arbitrator may apportion such costs in
accordance with the matter's disposition. The arbitrator's decision shall be
final and shall bind both parties. The foregoing procedures to the contrary
notwithstanding, each party shall have the right to seek immediate injunctive or
other judicial relief against or from any ongoing or impending injury or damage
which the foregoing dispute resolution procedure would not in that party's
reasonable opinion avoid.
17. Independent Contractor. Each party acknowledges that it is an
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independent contractor under this Agreement and has complete responsibility and
discretion in the conduct of its business. Each party acknowledges that it has
no power or authority to act as the other's representative or agent, to bind or
commit the other in any way or to transact business in the name of such party.
Nothing in this Agreement shall be construed as creating a partner, joint
venture or agency relationship between PurchasePro and Gateway.
18. General. The Agreement and any attached Exhibits contain the
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entire agreement of the parties and supercede any and all prior representations
or agreements, whether oral or written, relating to the subject matter of the
Agreement. The following Exhibits are attached to and made part of this
Agreement: Maximum Values for Services (Exhibit A); Phase I Warrant (Exhibit B-
1); Phase II Warrant (Exhibit B-2); and Marketplace Warrant (Exhibit B-3). This
Agreement may be amended or modified only by a writing signed by an authorized
representative of each party. If any term, clause or provision of the Agreement
is at any time judged to be invalid for any reason, such invalidity shall not
affect the validity or operation of any other term, clause or provision and such
invalid term, clause or provision shall be considered to have been deleted from
the Agreement.
19. Notices. Any notices, requests and other communications
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required or permitted to be given under this Agreement shall be in writing and
(i) delivered in person, which delivery the recipient agrees to acknowledge in
writing; (ii) transmitted by facsimile with a confirming copy delivered on the
next business day by a nationally recognized overnight courier service; (iii)
deposited in the United States postal service mail postage fee prepaid, for
mailing by first-class, registered or certified mail or (iv) sent by a
nationally recognized overnight courier service, addressed as follows:
If to Gateway:
Gateway Companies, Inc.
0000 Xxxxx Xxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Attention: General Counsel
Facsimile: 000-000-0000
If to PurchasePro:
PurchasePro, Inc.
0000 Xxxxx Xxxxxxx Xxxxx, Xxxxx 0
Xxx Xxxxx, Xxxxxx 00000
Fax: (000) 000-0000
Attention: General Counsel
or to such other address or individual as either party may specify from
time to time by written notice given by such party. Any notice shall be
deemed given on the earlier of: (a) the date it was so delivered in person
or transmitted by facsimile, or (b) two (2) days from the date it was so
delivered by courier, (c) four (4) days from the date mailed, or (d) the
date on which receipt is acknowledged by the recipient. Communications by
e-mail shall not be deemed to be in writing for any purpose under this
Agreement.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the
date first written above.
XXXXXXXXXXX.XXX, INC.
By:
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Its:
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GATEWAY COMPANIES, INC.
By:
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Its:
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EXHIBIT A
MAXIMUM VALUE OF SERVICES
1. Phase I Training Services *
2. Phase I Marketing Services *
3. Phase II Training Services *
4. Phase II Marketing Services *
*[CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION]
EXHIBIT B-1
FORM OF PHASE I WARRANT
[ATTACHED]
EXHIBIT B-2
FORM OF PHASE II WARRANT
[ATTACHED]
EXHIBIT B-3
FORM OF MARKETPLACE WARRANT
[ATTACHED]
