EXHIBIT 10.2(a)
INTERSHOP Communications Inc.
000 Xxxxxxxx Xx., Xxx Xxxxx, Xxxx
Xxx Xxxxxxxxx, XX 00000 [LOGO OF INTERSHOP COMMUNICATIONS APPEARS HERE]
PARTNER AGREEMENT (U.S. And Canada Only)
This Partner Agreement (the "Agreement") is entered into on this 30th day
of September, 1999 ("Effective Date"), between Intershop Communications, Inc.,
at 000 Xxxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 XXX, and
Virtual Communities, Inc. ("Partner"), at 000 0xx Xxxxxx, Xxx Xxxx, XX 00000.
Intershop and Partner hereby agree to the program benefits, requirements,
product purchase rights, and pricing for the Partner Program designated below
and as described in both:
(1) the documents entitled "Intershop CommerceTeam Channel Partner
Program Overview Table," found on Intershop's internet web site
(xxx.xxxxxxxxx.xxx) and incorporated into this Agreement by
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reference, and "Intershop Price List;" attached hereto as Exhibit B,
as of Effective Date; and
(2) the "Partner Program Terms and Conditions" attached to this
Agreement; and, if Partner installs or uses Intershop Products, the
applicable Intershop Product End User Agreement(s) contained with the
Product.
PARTNER PROGRAM: (select by marking with an "X")
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x Solution Provider
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Professional Solution Provider
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x Hosting Provider
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Partner's authorized signatory has read, understands and agrees to the
"Partner Program Terms and Conditions" attached to this Agreement.
INTERSHOP Communications, Inc. Virtual Communities, Inc.
By: /s/ Xxxx Xxxxxx By: /s/ Avi Xxxxxxxxx
Name: Xxxx Xxxxxx Name: Avi Xxxxxxxxx
Title: President VP Finance Title: President
Sales Tax Resale / Exemption Certificate No. (if applicable):___________________
(ORIGINAL CERTIFICATE MUST BE ATTACHED)
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Intershop Partner Programs Terms and Conditions
U.S./Canada Only
1 DEFINITIONS
1.1 "End User" means an end user of the Product who licenses the Software for
his/her own use and not for resale.
1.2 "End User Agreement" means the license agreement entered into between
Intershop and the End User and included with each Product.
1.3 "Key Registration Form" means a registration information form to be
completed by End User and provided to Intershop in order for the End User
to attain a Product unlocking key code.
1.4 "Merchant Customer" means a third party for whom Partner hosts a Store on
Partner's own server.
1.5 "Product(s)" means the Intershop Software version and associated
documentation listed in the applicable "Intershop Price List" and as
supplied and packaged for resale or delivered electronically by Intershop,
which Partner is hereunder authorized to sell.
1.6 "Partner Program Designation Names" means the Intershop program Partner
selects for participation under this Agreement. Each section of this
document will apply to Partner according to the Partner Program designated.
If no Partner Designation Names are specified after a given section, the
section will apply to all partner programs. The Partner Program Designation
Names are as follows: Solution Provider (SP); Professional Solution
Provider (PSP); and Hosting Provider (HP).
1.7 "Software" means a software solution product developed by Intershop
Communications, GmbH and/or its affiliates, for online shopping with
Database (as defined in the End User Agreement) functionality.
1.8 "Store" means a single electronic on-line store enabled by Product(s),
hosted on a Partner-controlled server and operated by Partner on behalf of
Merchant Customer. A single Store residing on a single, dedicated server
requires IS 3TM Merchant Edition product and licensing. Multiple Stores on
a single, shared server require Intershop 3TM Hosting Edition product and
licensing.
2 GRANT OF LICENSE
2.1 Appointment. Intershop appoints Partner within the U.S. and Canada (the
"Territory"), and Partner accepts such appointment, as a nonexclusive,
terminable reseller of the Products.
2.2 Grant. Within the U.S. and Canada, Intershop grants Partner and Partner
accepts from Intershop a nonexclusive, nontransferable, revocable license
to market, demonstrate, and sell Product or Products to End Users.
2.3 Subdistribution. Partner may only sell copies of the Products to End Users;
Partner is prohibited from distributing Products to third parties for
further resale.
2.4 Reservation of Rights. Except for fulling its obligations under Exhibit A,
Intershop reserves the right to add to, change or discontinue distribution
or sale of any or all Products and/or Partner Programs and to distribute,
license or sell Products directly to End Users, other licensees, resellers,
and any other customers without notice to Partner.
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2.5 Reproduction of Products. Partner acknowledges that the Products are
copyrighted and are proprietary to Intershop, and that PARTNER IS NOT
AUTHORIZED TO REPRODUCE ANY COPIES OF THE PRODUCTS.
3 THIRD PARTY SOFTWARE
Partner acknowledges that the Product includes certain third party software
("Third Party Software") licensed to Intershop which is embedded in the Product,
and may include but not limited to Sybase database, Fulcrum search engine, and
Perl. Partner agrees to comply at all times with the terms of the Third Party
Software licenses, including without limitation the Sybase license and GNU Perl
License, and, if required by the licensor of such Third Party Software, sign any
Third Party Software licenses. The appointment and grant set forth in Section 2
above is expressly contingent on Partner's continued compliance with all
reasonable Third Party Software licenses.
Partner shall not be required to pay additional software license fees for
the use of Third Party Software licenses in the Product, including upgrades and
updates thereto. However, Intershop reserves the right to include Third Party
Software in upgrades and updates to the Product; however, use of such Third
Party Software and the payment of associated Third Party Software license fees
shall be at Partner's option.
4 ORDERS, PAYMENT, INSPECTION, and DELIVERY
4.1 Orders. Partners may order Products from Intershop either by written
purchase order, mail, email or other internet communication or facsimile.
All orders, aside from initial order hereunder, are subject to acceptance
by Intershop in its reasonable discretion.
4.2 Fees. Unless otherwise specified, the Product license fees and related
support service fees payable to Intershop by Partners for the Product(s)
are set forth in the then-current Intershop Price List, a current copy of
which is attached hereto. Intershop shall notify Partner in advance of any
updates to the Intershop Price List.
4.3 Fees Subject to Change. Subject to any restrictions on price changes which
may be specified in Exhibit A, Intershop will be entitled to change the
license fees, suggested retail price of the Products and any Partner
Discount. Partner is free to determine the license fees which it may charge
for the Products.
4.4 Payment Terms. In addition to the fees payable by Partner for the Products
and related support service, Partner will bear and pay all related costs
for shipping, taxes, and handling. All amounts payable under this Agreement
will be in U.S. dollars, free of any currency control or other restrictions
to Intershop, and are due in accordance with payment terms set forth in
Exhibit A.
4.5 Taxes. The fees specified herein are exclusive of all federal, state, local
and foreign taxes, levies and assessments. Partner agrees to bear and be
responsible for the payment of all such taxes, levies and assessments
imposed on Partner or Intershop arising out of this Agreement, excluding
any income tax imposed on Intershop.
4.6 Withholding Taxes. If any applicable law requires Partner to withhold
amounts from any payments to Intershop hereunder, (i) Partner will effect
such withholding, remit such amounts to the appropriate taxing authorities
and promptly furnish Intershop with tax receipts evidencing the payments of
such amounts, and (ii) the sum payable by Partner upon which the deduction
or withholding is based will be increased to
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the extent necessary to ensure that, after such deduction or withholding,
Intershop receives and retains, free from liability for such deduction or
withholding, a net amount equal to the amount Intershop would have received
and retained absent such required deduction or withholding.
4.7 Delivery of Product.
(a) Shipping. Orders will be shipped F.O.B. the Partner's "SHIP TO" address
specified by Partner.
(b) Electronic Delivery. If Partner's order for Product(s) includes a
request that the Product(s) are delivered electronically, upon written
acceptance by Intershop of this delivery method and payment of the license
fees pursuant to this Section 4, a software code key, which will allow use
of the Product for the term of the End User Agreement ("Term Key"), will be
sent by Intershop to the email address provided.
5 PARTNER OBLIGATIONS
5.1 Partner will:
(a) use its reasonable best efforts to promote and market the Products and
related Product support service in the Territory;
(b) meet and fulfill the program requirements specific to Partner's program as
set forth in the document entitled "Intershop CommerceTeam Channel Partner
Programs Overview Table";
(c) answer questions by potential customers and End Users regarding the
Products;
(d) purchase Product support service from Intershop and provide Product
maintenance and support services to its Merchant Customers (HP only);
(e) conduct business in a manner that will enhance the image and reputation of
Intershop and Products;
(f) materially comply with all applicable laws and regulations and avoid
deceptive, misleading or unethical practices;
(g) provide reports of inventory levels of all Products currently on hand on
the first day of each of the quarterly months of January, April, July,
October or at Intershop's prior written request ;
(h) obtain at its expense all necessary customs, import/export and other
governmental approvals which may be necessary in the Territory with respect
to the Product(s);
(i) prior to receiving Partner designation and program benefits, partner must
attend required Intershop training course(s), the fees for which Partner
will pay prior to the date of the course (Intershop retains the right to
require Partner to attend subsequent training courses annually or as may
otherwise be required under current or future Intershop reseller training
policy) and pass required certification testing;
(j) keep accurate accounts, books and records relating to the business of
Partner with respect to the Products, including sales figures, customer
lists and live Stores, which Partner will provide to Intershop upon
request; and
(k) notify Intershop immediately if Partner has reason to believe any
misappropriation of Product(s) or use of Product(s) by anyone in any manner
not expressly authorized by this Agreement.
5.2 Partner will not:
(a) remove, alter, or cover any copyright, trademark or other proprietary
notice or legend incorporated in, marked on, or
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affixed to the Products;
(b) make any representations, warranties, or guarantees with respect to the
Products which are inconsistent with or in addition to those made by
Intershop; or
(c) modify, amend, alter, translate, reverse engineer, decompile, disassemble,
or create derivative works based on the Software.
6 INTERSHOP OBLIGATIONS
If requested by Partner, Intershop will provide Partner with machine-
readable versions of Product marketing literature ("Marketing Materials"). If
Partner requests hard copy form, Partner will pay production costs, including,
but not limited to, printing, materials, design, layout, and labor related to
the Marketing Materials.
7 CONFIDENTIALITY
Partner acknowledges and agrees that the Products may contain highly
confidential and proprietary information of Intershop ("Confidential
Information"). Partner agrees to protect Confidential Information. Upon request,
Partner will execute a non-disclosure agreement with Intershop for the
protection of Intershop's confidential information. Any software, Products,
documentation, marketing, sales, product or other material containing the
Confidential Information of Intershop in Partner's possession at the time of the
expiration or termination of this Agreement will be returned immediately to
Intershop without retention by Partner of any copies, including electronic
copies, or parts thereof. Except where the Sybase end user license agreement
provides otherwise, Partner may retain the Backup database (as defined in the
End User Agreement).
8 TITLE
Exclusive title to the Products and all Proprietary Marks, any copies
thereof, in whole or in part, all related copyrights, patents, trademarks, trade
secrets, documentation, and related goodwill at all times remain with Intershop
or its licensors, as applicable. Intershop retains sole ownership of all
goodwill associated with the Products.
9 TRADEMARKS
9.1 Trademark License. Intershop grants to Partner a non-exclusive,
nontransferable, revocable license to display and use the Proprietary Marks
for the sole purpose of marketing the Products. Partner may publish
advertising and marketing materials as may be prepared or reasonably
approved by Intershop.
9.2 Obligation to Display Logo. Partner will prominently display on its Web
page on the World Wide Web (i) a logo and/or trademark indicating that
Partner is an "Authorized Intershop CommerceTeam Partner" and (ii) an
Intershop logo supplied by Intershop which hyperlinks to Intershop's home
page.
9.3 Compliance. Partner agrees that it will comply with all reasonable rules,
standards, and guidelines for Intershop's Proprietary Marks. Partner will
at all times comply with all reasonable guidelines regarding the use of
trademarks of the licensors of Third Party Software embedded in the
Product.
10 WARRANTY AND WARRANTY DISCLAIMER
During the initial 30 day term of this Agreement, Intershop warrants that
the Products will operate in material conformance to Intershop's published
specifications or associated feature lists. Intershop does not warrant that the
Products or any portion thereof are error free. Partner's exclusive remedy, and
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Intershop's entire liability with respect to the foregoing, will be correction
of any warranted nonconformity to Partner's satisfaction on a timely basis.
EXCEPT AS PROVIDED ABOVE OR IN THE END USER AGREEMENT, INTERSHOP MAKES NO
WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS, SERVICES, OR THE
AGREEMENT, AND ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE ARE EXPRESSLY EXCLUDED, EVEN IF INTERSHOP HAS BEEN INFORMED OF A
PARTICULAR PURPOSE.
11 LIMITATION OF LIABILITY
PARTNER AGREES THAT INTERSHOP, ITS HOLDING COMPANY, AFFILIATES, OFFICERS,
EMPLOYEES OR AGENTS, SHALL NOT IN ANY EVENT BE LIABLE FOR ANY INDIRECT, SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES. THIS LIMITATION OF LIABILITY WILL APPLY
REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR TORT.
Except with respect to any claim that any Product licensed to Partner
infringes any copyright, trade secret, patent or a claim that Intershop has no
right to license the Products hereunder, the parties agree that Intershop's
liability, if any, for any damages relating to any products, services, or this
Agreement will be limited to the actual amount received from Partner by
Intershop for the particular product which caused the liability.
12 TERM AND TERMINATION
12.1 Term and Renewal. The term of this Agreement will be for a period of three
(3) years from the Effective Date; thereafter, this Agreement will be
renewed for successive one (1) year terms without further notice unless
otherwise terminated as provided elsewhere in this Agreement.
12.2 Termination. Partner or Intershop may terminate this Agreement at any time,
with cause, effective upon 30 days' written notice to the other party. In
the event that Partner fails to make a payment to Intershop when due, or
otherwise materially breaches this Agreement, and such failure or breach
continues uncured for 30 days after written notice of such failure or
breach, Intershop may terminate this Agreement effective upon notice of
termination; provided, however, that Intershop may not terminate this
Agreement for so long as Partner is diligently attempting to cure such
failure or breach.
12.3 Suspension. Without limiting Intershop's right to terminate this Agreement
as set forth above, Partner agrees that where Intershop, in its reasonable
opinion, believes that Partner is in violation of any material provision of
this Agreement, Intershop may suspend its performance under this Agreement
and refuse to deliver Products to Partner, and Partner must cease selling
Products until Intershop is satisfied that Partner is in material
compliance with the terms of this Agreement. If resolution regarding the
suspected breach is not reached within 30 days of the initiation by
Intershop of such suspension, Intershop may terminate this Agreement
effective immediately upon written notice; provided, however, that
Intershop may not terminate this Agreement for so long as Partner is
diligently attempting to cure such failure or breach.
12.4 License Survival of Termination. Notwithstanding expiration or termination
of this Agreement, Store licenses (and the right to use Stores and the
Products (including the Virtual Community Manager)) previously licensed
under this Agreement) will survive the expiration or termination of this
Agreement.
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13 INDEMNIFICATION
13.1 Indemnification by Intershop.
(a) Duty to Defend. Intershop agrees that it will, at its own expense, defend,
or at its option settle, any action instituted against Partner, and pay any
award or damages assessed against Partner or agreed to be paid by Intershop
in settlement resulting from such action, insofar as the same is based upon
a claim that any Product used in accordance with the terms of this
Agreement infringes any U.S. copyright, trade secret, patent or a claim
that Intershop has no right to license the Product hereunder, provided that
Partner give Intershop: (i) prompt written notice of such action, (ii) the
right to control and direct the investigation, preparation, defense and
settlement of the action; and (iii) reasonable assistance and information.
(b) Intershop Options. If such an action is made or Intershop reasonably
determines in its discretion that such a claim is likely to be made,
Intershop will have the option to (i) obtain the right for Partner to
continue sales of the Product; or (ii) replace or modify the Product, so
that it is no longer infringing but functionally equivalent. If Intershop
determines that neither of these alternatives is reasonably available,
Intershop may refund the license fees paid by Partner less depreciation for
use assuming straight line depreciation over a 5 year useful life and
terminate this Agreement.
(c) Claims for which Intershop is Not Responsible. Notwithstanding the
foregoing, Intershop will have no liability under this Section 13.1 if the
alleged infringement arises from (i) the use of other than the current
unaltered release of the Product, or (ii) the use of Product in a manner
other than as generally specified in the user manual, if such action would
have been avoided but for such use or combination.
13.2 Indemnification by Partner. Partner hereby indemnifies, will defend
against, and holds Intershop harmless from any claims, suits, loss, or
damage (including without limitation, attorneys' fees and costs) arising
out of (i) any unauthorized use of any patent, copyright, or other
proprietary right by Partner in connection with the distribution, sale or
license of the Products; (ii) any damage arising out of any defects in
Partner's products or services; or (iii) any and all claims by any third
party resulting from Partner's acts (other than the marketing of Products
in the manner set forth in this Agreement) or omissions, regardless of the
form of action.
14 GENERAL PROVISIONS
14.1 Independent Contractor. Partner is an independent contractor, and will not
represent itself to be the agent, employee, joint venture, officer, or
partner of Intershop.
14.2 Governing Law; Venue. This Agreement will be governed by and construed in
all respects in accordance with the laws of New York.
14.3 Assignment. This Agreement will bind and inure to the benefit of the
parties hereto and their respective successors and assigns. Notwithstanding
the foregoing, Partner will not assign any of Partner's rights nor delegate
any of Partner's obligations without the prior written consent of Intershop
(which consent will not be unreasonably withheld) and any attempt to do so
will be void. Notwithstanding the foregoing, Partner may assign this
Agreement without the consent of Intershop in connection with a merger,
acquisition, or corporate reorganization, provided that the
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assignee has agreed in writing to be bound by all the terms and conditions
of this Agreement.
14.4 Entirety. This Agreement and the associated Exhibits set forth the entire
understanding and supersedes all prior and contemporaneous agreements
between the parties relating to the subject matter.
14.5 Survival. The rights and obligations under Sections 3, 4.4, 5.2, 8, 9, 11,
12, 13, and 14 will survive expiration or termination of this Agreement for
any reason.
14.6 Government Rights. If any Product is used in any fashion, directly or
indirectly, in connection with foreign or domestic government contracting
or subcontracting, including without limitation, Partner's performance of
any government contracts or subcontracts, then Partner will ensure that the
government entity receives nothing more than RESTRICTED RIGHTS. The Product
is a "commercial item," as that term is defined at 48 C.F.R. 2.101 (Oct.
1995) consisting of "commercial computer software" and "commercial computer
documentation," as such terms are used in 48 C.F.R. 12.212 (Sept. 1995).
14.7 Force Majeure. Except for payments due Intershop from Partner under this
Agreement, neither party will be liable for non-performance or delays in
performance if caused by factors beyond its reasonable control.
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