AMENDED AND RESTATED SERVICES AGREEMENT
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AMENDED AND RESTATED
SERVICES AGREEMENT
This Amended and Restated Services Agreement (this "Agreement"), dated March 25, 2002, is by and between Styleclick, Inc., a Delaware corporation ("Styleclick"), and ECS Sports Fulfillment LLC, a Delaware limited liability company ("ECS"), and effective as of December 19, 2000 (the "Effective Date").
WHEREAS, Xxxxxx Sports Interactive, Inc. ("TSI") and ECS have entered into an agreement (the "Underlying Agreement") pursuant to which, among other things, ECS, acting directly or through a third party, shall develop, build, host, maintain and operate the NASCAR online store;
WHEREAS, Styleclick and ECS entered into a purchase order agreement (the "Purchase Order"), effective as of December 19, 2000, pursuant to which Styleclick agreed to provide certain services to ECS in support of ECS's obligations to TSI;
WHEREAS, prior to entering into the Purchase Order, Styleclick was aware of the material terms applicable to it thereto and contained in the Underlying Agreement;
WHEREAS, Styleclick and ECS entered into a services agreement (the "Services Agreement"), dated as of November 12, 2001, pursuant to which the terms and conditions of the Purchase Order were superseded and replaced; and
WHEREAS, Styleclick and ECS desire to enter into this Agreement to amend and restate the Services Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
1. DEFINITIONS
For the purposes of this Agreement, capitalized terms not expressly defined elsewhere in this Agreement shall have the meanings set forth in Exhibit A hereto.
2. GENERAL OPERATIONS
2.01 Term. The initial term of this Agreement (the "Initial Term") shall be for the period commencing on the Effective Date and expiring on December 31, 2001, unless earlier terminated in accordance with the terms hereof. ECS shall have the option to extend the term of this Agreement for up to nine additional one-year periods (each such one year period, a "Renewal Term") by providing Styleclick with written notice of its intent to extend no later than 30 days in advance of the last day of the Initial Term or the current Renewal Term, as applicable. The Initial Term together with all Renewal Terms shall be referred to herein as the "Term".
2.02 Development of the NASCAR Online Store. As described in more detail in Exhibit B attached hereto, Styleclick shall develop, host, operate and maintain the NASCAR Online Store in a manner consistent with the terms set forth, as applicable, in the Underlying Agreement, the material terms of which have been provided to Styleclick. Styleclick shall provide the Development Services, License, Operations Services, Maintenance Services, Customer Support Services and Reporting, each as more fully described in Exhibit B hereto. Styleclick shall only be obligated to perform those services expressly required by this Agreement. ECS shall provide Styleclick with all information that Styleclick reasonably requests in order for Styleclick to perform its services under this Agreement.
2.03 Fees. In consideration of the services to be provided by Styleclick hereunder, ECS shall pay Styleclick the fees set out in, and in accordance with, Exhibit C attached hereto.
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2.04 Prior Agreements. This Agreement supersedes and replaces in its entirety both the Purchase Order and the Services Agreement.
3. PAYMENT TERMS; RECORDS; AUDIT RIGHTS
3.01 Payment Terms. Styleclick shall invoice ECS on a monthly basis for amounts owed under this Agreement. ECS shall pay each invoice within 10 days after receipt of any such invoice.
3.02 Records; Audit Rights. Styleclick shall maintain accurate books of account and records relating to services provided under this Agreement. ECS and TSI shall have the right at their own expense during the Term, at reasonable hours of the day and upon reasonable prior written notice, not less than 10 days in advance, to examine and audit such books of account or records in Styleclick's possession or under its control solely for the purpose of conducting such audits and enforcing its rights under this Agreement. All such books of account and records shall be kept available for at least twelve (12) months after the expiration or termination of this Agreement.
4. INTELLECTUAL PROPERTY
4.01 License. ECS represents to Styleclick that it has been granted a license from TSI which permits Styleclick, during the Term and subject to the terms and conditions in the Underlying Agreement, to use the XXXXXX.xxx Marks as reasonably necessary for Styleclick to perform its obligations hereunder. All goodwill arising out of any use of any XXXXXX.xxx Marks by, through or under Styleclick will inure solely to the benefit of TSI. Styleclick will not use the XXXXXX.xxx Marks in any way that tarnishes, blurs, or dilutes the quality associated with such XXXXXX.xxx Marks or the associated goodwill. Styleclick will use the XXXXXX.xxx Marks in conformance with the generally applicable trademark usage policies of TSI as furnished by ECS or TSI to Styleclick from time to time. Other than as may be necessary to develop the NASCAR Online Store (e.g., use of XXXXXX.xxx Marks therein), Styleclick will not form any combination or derivative marks with the XXXXXX.xxx Marks. Styleclick will not take any action inconsistent with TSI's ownership of the XXXXXX.xxx Marks. Any benefits accruing from use of the XXXXXX.xxx Marks will automatically vest in TSI.
4.02 Ownership. (a) Styleclick acknowledges that TSI reserves all right, title and interest in and to the XXXXXX.xxx Marks, along with all Intellectual Property Rights solely associated with any of the foregoing, and no title to or ownership of any of the foregoing is transferred or, except as expressly set forth in this Section 4, licensed or sublicensed to Styleclick or any other person or entity pursuant to this Agreement. Styleclick hereby assigns to TSI all right, title and interest that it may have or acquire in and to such items and all associated Intellectual Property Rights, and Styleclick will take, provided that ECS or TSI reimburses Styleclick for any related expenses, any actions (including execution and delivery of affidavits and other documents) reasonably requested by ECS or TSI to effect, perfect or confirm TSI's or its designee's right, title and interest therein. At the termination of the Agreement, Styleclick will return all the XXXXXX.xxx Marks to TSI, and Styleclick shall have no further rights thereto.
(b) Notwithstanding anything in this Agreement to the contrary, Styleclick will retain ownership of the template and e-Commerce functionality of the NASCAR Online Store and ECS and Styleclick, respectively, will retain ownership of any other content, technology or trademark (including the Software (as defined in Exhibit B) owned by, and furnished in connection with, such party in the performance of its respective obligations hereunder.
5. TERMINATION
5.01 Early Termination Right. In the event that the Underlying Agreement terminates, this Agreement shall terminate contemporaneously. ECS shall give Styleclick prompt notice of any termination or anticipated termination of the Underlying Agreement.
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5.02 ECS Termination Rights. Without prejudice to any other rights ECS may have pursuant to this Agreement or otherwise, ECS shall have the right to terminate this Agreement upon written notice to Styleclick if:
(a) Styleclick shall be unable to pay its liabilities when due, or shall make any assignment for the benefit of creditors, or under any applicable law admits in writing its inability to meet its obligations when due or commit any other act of bankruptcy, institute voluntary proceedings in bankruptcy or insolvency or permit institution of such proceedings against it; or
(b) Styleclick is in breach of any material term or condition of this Agreement, in any material respect, and such breach remains uncured (30) days after written notice of such breach is sent to Styleclick by ECS; provided, however, that if such breach by its inherent nature can be cured but not within the thirty (30) day period because the assistance of a person or entity unrelated to Styleclick is needed to cure such breach, then Styleclick shall have the opportunity to cure such breach within a reasonable period of time of receipt of such notice if Styleclick has commenced to cure such breach within such thirty (30) day period.
5.03 Styleclick Termination Rights. Without prejudice to any other rights Styleclick may have pursuant to this Agreement or otherwise, Styleclick shall have the right to terminate this Agreement upon written notice to ECS, if:
(a) ECS shall be unable to pay its liabilities when due, or shall make any assignment for the benefit of creditors, or under any applicable law admits in writing its inability to meet its obligations when due or commit any other act of bankruptcy, institute voluntary proceedings in bankruptcy or insolvency or permit institution of such proceedings against it; or
(b) ECS is in breach of any material term or condition of this Agreement, in any material respect, and such breach remains uncured (30) days after written notice of such breach is sent to ECS by Styleclick; provided, however, that if such breach by its inherent nature can be cured but not within the thirty (30) day period because the assistance of a person or entity unrelated to ECS is needed to cure such breach, then ECS shall have the opportunity to cure such breach within a reasonable period of time of receipt of such notice if ECS has commenced to cure such breach within such thirty (30) day period.
5.04 Effect of Expiration or Termination. After the expiration or termination of this Agreement: (a) Styleclick shall have no right to use, or allow any third party to use, the XXXXXX.xxx Marks or any content provided by ECS hereunder; (b) Styleclick agrees in good faith to assist, at ECS's cost and expense, with the orderly transfer of Styleclick's obligations herein to ECS or to a third party, such transition costs to be billed according to standard Styleclick rate card, and (c) Styleclick shall promptly refund (in any event no later than 30 days following such termination) any fees paid by ECS hereunder on a pro-rated basis.
5.05 Representations. Each party represents and warrants to the other party that (a) it has and will have full right, power, and authority to enter into this Agreement and perform its obligations under this Agreement; (b) that its execution and performance of this Agreement, and the other party's exercise of such other party's rights under and in accordance with this Agreement, will not breach or cause a conflict with any other agreement to which it is bound; (c) its performance hereunder will comply with all applicable laws and regulations and (d) when executed and delivered, this Agreement will constitute its legal and binding obligations, enforceable against it in accordance with its terms, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. In addition, ECS represents and warrants that it is a party to an agreement with TSI which grants (or allows ECS to grant) to Styleclick the rights and license granted herein. In addition, Styleclick represents and warrants that it owns or licenses (or will own or license), directly or indirectly, all
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necessary rights in and to the technology being used to create the NASCAR Online Store in accordance with the terms of this Agreement and, assuming the accuracy of the representations and warranties of ECS hereunder, the creation and development of the NASCAR Online Store will not infringe upon or violate the intellectual property rights of any third party.
6. MISCELLANEOUS
6.01 Governing Law; Jurisdiction. This Agreement shall be construed in accordance with the laws of the State of New York, without regard to its principles of conflicts of laws.
6.02 Assignment. Neither this Agreement nor any of the respective rights, privileges or obligations of the parties hereunder may be assigned by Styleclick, provided, however, that ECS may transfer or assign its rights, privileges and obligations under this Agreement to any Affiliate of ECS, provided that such transferee agrees in writing to be bound by this Agreement.
6.03 Amendment; Modification. None of the provisions of this Agreement may be amended, or modified except expressly in writing signed by all parties, and there are no representations, promises, and agreements, warranties, covenants or undertakings other than those contained herein. No failure on the part of a party to exercise any right under this Agreement shall operate as a waiver of such right; nor shall any single or partial exercise of any right preclude any other or further exercise or the exercise of any other rights.
6.04 Severability. In the event any provision of this Agreement is found to be void, invalid or unenforceable as a result of any judicial or administrative proceeding or decree, this Agreement shall be construed and enforced as if such provisions were not contained in this Agreement.
6.05 Survival. No expiration or termination of this Agreement shall relieve ECS of its obligations to pay Styleclick any amounts due to it at the time of termination or expiration, regardless of whether these amounts are then or thereafter payable. The provisions of Sections 3.01, 3.02, 4.01, 4.02, 5.04, 5.05, 6.01, 6.05, 6.06, 6.07, 6.08, 6.10 and 6.10 shall survive the expiration or termination of this Agreement.
6.06 During the Term and for a period of 2 years thereafter, neither party shall (nor shall they permit or cause their employees or agents to) divulge, disseminate or publicize Confidential Information (other than to their respective attorneys, consultants or agents subject to confidentiality obligations), except as may be required by law or to fulfill (or enforce) the terms of this Agreement. For the purpose of the preceding sentence, Confidential Information shall mean the information contained in this Agreement and all information conveyed by any party to another party relating to the disclosing party's business, which is designated by the disclosing party in writing as proprietary or confidential.
6.07 Construction. This Agreement, together with any exhibits or attachments, when fully-executed, shall constitute the entire agreement and understanding between the parties hereto and cancels, terminates and supersedes and prior agreement or understanding relating to the subject matter hereof between ECS and Styleclick. The headings in this Agreement are for reference purposes only and shall not affect the interpretation of this Agreement. Whenever used in this agreement, the words "include," "includes" and "including" shall be deemed to be followed by the words "without limitation." Unless otherwise specifically addressed herein, any approval required of either party shall be deemed to be an approval that may not be unreasonably withheld of delayed by such party.
6.08 Notices. All notices to be given hereunder shall be in writing and shall be sent by facsimile, registered or certified mail, return receipt requested, or by reputable overnight courier service (e.g., UPS, DHL, or Federal Express) to the respective addresses of the parties as set forth above unless
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notification of a change of address is given in writing. All notices shall be sent to the addresses set forth below:
if to Styleclick, as follows:
Styleclick, Inc.
000 X. Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Chief Financial Officer
if to ECS, as follows:
ECS
Sports Fulfillment LLC
c/o USA Electronic Commerce Solutions LLC
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
with a copy to:
ECS
Sports Fulfillment LLC
c/o USA Electronic Commerce Solutions LLC
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
Any written notice shall be deemed to have been given at the time it is received. Any notice required or permitted to be given by the provisions hereof shall be conclusively deemed to have been received by a party hereto on the day it is delivered to such party at the address indicated (or such other address as such party shall specify to the other party in writing) or, if sent by registered or certified mail, on the third business day after the day on which mailed, addressed to such party at such address.
6.09 No Joint Venture. Nothing herein contained shall be construed to place the parties in the relationship of partners or joint ventures and no party shall by virtue of any contained herein have the power to obligate or bind another party to a third party in any manner whatsoever.
6.10 Indemnification.
(a) Styleclick shall defend, indemnify and hold harmless ECS and its Affiliates (other than Styleclick), shareholders, members, related companies (other than Styleclick), officers, directors, managers, employees and agents (the "ECS Parties") against any claims, expenses, demands, causes of action or damages, including reasonable attorney's fees (whether incurred by a third party or an action between the parties) (collectively, "Claims") arising out of any breach of this Agreement or any representation herein by Styleclick; provided that, in each such instance, Styleclick is given prompt notice of, and shall have the option, at its sole cost and expense, to undertake and conduct the defense of, any such Claim. In any instance to which such indemnities pertain, (A) Styleclick shall keep ECS fully advised of all developments pertaining to such Claims and shall not enter into a settlement of such Claim that would adversely affect ECS, including admitting any liability or fault of ECS, without ECS's prior written approval and (B) ECS shall cooperate fully with and assist Styleclick in all respects in connection with any such defense. Styleclick shall reimburse ECS for all reasonable out-of-pocket costs actually incurred by ECS in connection with such cooperation and assistance.
(b) ECS shall defend, indemnify and hold harmless Styleclick, its Affiliates (other than ECS), shareholders, related companies (other than ECS), officers, directors, managers, employees and agents against any claims arising out of: (i) a claim that the use by Styleclick as permitted by this
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Agreement of the NHL Content or any NHL Xxxx violates or infringes upon the alleged trademark, copyright or other right of a third party in or to such NHL Content or NHL Xxxx; and (ii) any breach of this Agreement or any representation herein by ECS; provided that ECS is given prompt notice of, and shall have the option, at its sole cost and expense, to undertake and conduct the defense of any such Claim. In any instance to which such indemnities pertain, (A) ECS shall keep Styleclick fully advised of all developments pertaining to such Claims and shall not enter into a settlement of such Claim that would adversely affect Styleclick, including admitting any liability or fault, without Styleclick's prior written approval and (B) Styleclick shall cooperate fully with and assist ECS in all respects in connection with any such defense. ECS shall reimburse Styleclick for all reasonable out-of-pocket costs actually incurred by Styleclick in connection with such cooperation and assistance.
6.11 Limitation of Liability. In the event of any breach of this Agreement by any party, the amount of any claim of loss by any other party or by any of their Affiliates shall be limited to actual and direct damages, other than as set forth in the following sentence. EXCEPT FOR BREACHES ARISING FROM WILFULL MISCONDUCT OR GROSS NEGLIGENCE, IN NO EVENT SHALL ANY PARTY OR ANY OF THEIR AFFILIATES BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES FOR BREACH OF THIS AGREEMENT, INCLUDING LOST PROFITS. Neither occasional short-term interruptions of service which are not unreasonable under comparable industry standards nor interruptions of service resulting from events or circumstances beyond Styleclick's or ECS's reasonable control (which, in any case, have caused comparable interruptions to Styleclick's other businesses or to ECS's other businesses (as the case may be)) shall be cause for any liability or claim hereunder, nor shall any such occasion render Styleclick or ECS in default under this Agreement.
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IN WITNESS WHEREOF, ECS and Styleclick each has caused this Agreement to be executed and delivered by its duly authorized officer.
| ECS SPORTS FULFILLMENT LLC | |||
by |
|||
/s/ XXXXXX XXXXXX |
|||
| Name: | Xxxxxx Xxxxxx | ||
| Title: | |||
STYLECLICK, INC. |
|||
by |
|||
/s/ XXXXX XXXX |
|||
| Name: | Xxxxx Xxxx | ||
| Title: | EVP | ||
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"Affiliate" means, with respect to a party, any person or entity that controls, is controlled by, or is under common control with such party, where "control" means ownership of, or voting rights over, fifty percent (50%) or more of the outstanding voting securities or the power to direct or cause the direction of management of such party, person, or entity, whether through voting securities, by contract, or otherwise (but only as long as such person or entity meets these requirements).
"Intellectual Property Rights" means any and all now known or hereafter known tangible and intangible (a) rights associated with works of authorship throughout the universe, including but not limited to copyrights, moral rights, and mask-works, (b) trademark, trade dress and trade name rights and similar rights, (c) trade secret rights, (d) patents, designs, algorithms and other industrial property rights, (e) all other intellectual and industrial property rights of every kind and nature throughout the universe and however designated (including domain names, logos, "rental" rights and rights to remuneration), whether arising by operation of law, contract, license, or otherwise, and (f) all registrations, initial applications, renewals, extensions, continuations, divisions or reissues hereof now or hereafter in force (including any rights in any of the foregoing).
"Launch" means, with respect to the NASCAR Online Store, that time when the NASCAR Online Store is first generally accessible to Internet users at the NASCAR Online Store URL.
"XXXXXX.xxx" means the official Internet site for XXXXXX.xxx and certain other NASCAR-branded sites as they exist today or at any other time during the Term.
"NASCAR Online Store" means the Internet retail location for sales of NASCAR licensed product within the XXXXXX.xxx website to be built and operated by Styleclick having a URL of "xxxxx.xxxxxx.xxx" and any additional URLs agreed to by ECS and TSI.
"NASCAR Marks" means NASCAR logos, URLs or trademarks licensed by TSI from NASCAR and sublicensed to ECS (and/or Styleclick) which ECS has indicated or will indicate to Styleclick from time to time are available for such license or sublicense to Styleclick, including the XXXXXX.xxx xxxx and logo.
"URL" means uniform resource locator.
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Notwithstanding the following terms, all services performed hereunder shall be, at minimum, consistent with those set forth in the Underlying Agreement, the applicable material terms of which have been provided to and agreed to by Styleclick.
Development Services:
Styleclick, in consultation with ECS, shall develop and build the NASCAR Online Store in accordance with reasonable specifications determined by ECS and TSI, which shall include, among other things, technical, reporting and functional capabilities, operational standards, content guidelines, "look and feel" and other relevant attributes and redesign commitments set forth in the Underlying Agreement (the "Specifications"). Styleclick shall convert, input or otherwise format as necessary all XXXXXX.xxx Marks and other content supplied by TSI and ECS to be included in the NASCAR Online Store pursuant to the Specifications. ECS has secured the agreement of TSI to deliver to ECS, or provide ECS access to, and ECS agrees to deliver to Styleclick, or provide Styleclick access to, all assets (of which TSI has ownership) for use in the NASCAR Online Store to be developed and built, including photographs, text, images and other graphics currently or previously included therein.
Launch. ECS acknowledges that the "Launch Date" of the NASCAR Online Store occurred on February 5, 2001.
Hosting. Styleclick will host the NASCAR Online Store on its host server and shall link the NASCAR Online Store into XXXXXX.xxx. Styleclick shall also link the NASCAR Online Store to any website that ECS directs.
Operational Level. Consistent with the Underlying Agreement, Styleclick covenants that during the Term and after the Launch Date, the NASCAR Online Store will be fully operational, excepting de minimus downtime. Styleclick shall promptly inform ECCS of any material operational failure of the NASCAR Online Store and take all commercially reasonable actions necessary to cure such failure.
1. License: Subject to the terms and conditions of this Agreement, Styleclick grants to ECS a non-transferable and non-exclusive license (the "License") to utilize the software assets (the "Software") listed immediately below for the duration of this Agreement. Pursuant to the License the Software may be used solely for internal data processing of operations of the NASCAR Online Store and may not be used to process the data of others, or as a service bureau, time share facility or otherwise. The Software shall consists of the following elements which comprise the Styleclick Chicago platform:
- •
- E-Commerce
engine
- •
- Merchandising
application
- •
- Customer
Service application
- •
- Web-based
Supplier Interface application
- •
- File
Exchange application
- •
- Reporting application
2. Operations Services: The Operations Services shall consist of an allocation of the following resources to the support, enhancement and operation of the NASCAR Online Store. In the event that operations, customization and enhancement requests (other than those contemplated hereunder or by the Underlying Agreement) cause the monthly resource allocation in any one area to exceed the
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allocated amount of Full Time Equivalents ("FTEs"), ECS will pay Styleclick at a 15% discount to Styleclick's standard hourly rate for services rendered. The Styleclick project manager for the NASCAR Online Store will monitor the hours worked by each area throughout the month and will proactively notify ECS in the event of an expected over-run on the allocated FTEs for the month. All Styleclick time is currently tracked via the Xxxxxxx XX Time Keeper software. In the future Styleclick will track time via Xxxxxxx XX Time Keeper or a similar product such as Microsoft Project.
| |
NASCAR |
|
|---|---|---|
| Position |
Operate (FTEs) |
|
| Project Manager | 0.50 | |
| Creative Designer | 0.50 | |
| Web Content Developer | 0.50 | |
| Photographer / Image Editor | 0.25 | |
| Application Developer | 0.75 | |
| Merchandising Integrator | 0.25 | |
| Fulfillment Integrator | 0.50 | |
| Logistics Integration | 0.33 | |
| Customer Service Integrator | 0.10 | |
| Finance Integrator | 0.20 | |
| Web / System Integrator | 0.33 | |
| Total FTE | 4.21 |
Position |
Hourly Rate for Services |
||
|---|---|---|---|
| Project Manager | $ | 165.00 | |
| Creative Designer | $ | 105.00 | |
| Web Content Developer | $ | 90.00 | |
| Photographer / Image Editor | $ | 82.00 | |
| Application Developer | $ | 125.00 | |
| Merchandising Integrator | $ | 132.00 | |
| Fulfillment Integrator | $ | 105.00 | |
| Logistics Integration | $ | 90.00 | |
| Customer Service Integrator | $ | 82.00 | |
| Finance Integrator | $ | 82.00 | |
| Web / System Integrator | $ | 125.00 | |
3. Maintenance Services: The Maintenance Services shall consist of maintaining and improving the Licensed applications mentioned in #2 above.
4. Customer Service: Styleclick shall provide such Customer Service to users of the NASCAR Online Store as reasonably requested by ECS and consistent with the Underlying Agreement.
5. Reporting: Styleclick shall provide such reporting to ECS and TSI as reasonably requested by ECS and consistent with the terms of the Underlying Agreement.
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1. Development Fee: The fee for the Development Services shall be waived.
2. License Fee The fee for the License shall be a one-time fee of $103,500 which shall be due and payable on the Effective Date.
3. Operations Fee: The fee for the Operations Services shall be a monthly fee of $59,000 which shall be due and payable within 30 days of the end of each month during the term of the Agreement beginning with July 2001.
4. Maintenance Fee: The fee for the Maintenance Services shall be a yearly fee of $42,500, which shall be due and payable on the Effective Date and on the first day of each Renewal Term.
5. Customer Service Fee: The fee for the Customer Services shall be a monthly for of 103% of the cost to Styleclick of providing such fees. Such fees shall be due and payable with respect to a month within 30 days of the end of such month.
6. Increase of Fees: All fees and other prices set forth in this Exhibit B shall be adjusted each Renewal Period by the CPI Adjustment and/or any other cost increases that may be substantiated by Styleclick (e.g. increases in hosting, bandwidth or salary costs). The "CPI Adjustment" shall equal the percentage by which the Consumer Price Index for All Urban Consumers (CPI-U) for the U.S. City Average for All Items has increased or decreased for the month of December of the then ending calendar year as compared to the month of December of the previous calendar year. In the event that ECS is unwilling to agree to renew the agreement based on an Increase of Fees related to costs increases that have been substantiated by Styleclick, ECS and Styleclick will arrange for a mutually agreeable transition to another provider.
7. Taxes. All fees above are exclusive of any taxes, duties, fees or other government levies or charges.
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AMENDED AND RESTATED SERVICES AGREEMENT
EXHIBIT A DEFINITIONS
EXHIBIT B SERVICE TERMS
EXHIBIT C PAYMENT TERMS
