Exhibit 10.21
English Translation
CONFIDENTIAL TREATMENT REQUESTED BY GMARKET INC. CONFIDENTIAL PORTIONS OF THIS
DOCUMENT HAVE BEEN REDACTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION.
OKCASHBAG SERVICE COLLABORATION AGREEMENT
SK Corporation ("SK") and Gmarket Inc. ("Gmarket") enter into the OKCashbag
Service Collaboration Agreement based on mutual good faith as follows. SK and
Gmarket shall be severally referred to as "Party" and shall be collectively
referred to as the "Parties".
Article 1 (Purpose)
The purpose of this Agreement is to provide for the Parties' rights and
obligations and other matters necessary in providing the OKCashbag Service to
Members who use Gmarket Place of Business, so as to promote mutual benefit of
both Parties.
Article 2 (Definitions)
(1) "OKCashbag Members" ("Members") shall mean those who may normally use
the OKCashbag service and are issued OKCashbag cards from SK or
OKCashbag-affiliated entities recognized by SK, in accordance with the
standards and procedures provided by SK.
(2) "OKCashbag Service" shall mean a service program whereby a Member can
accumulate points at every purchase of a good or service from an
OKCashbag-affiliated entity or an OKCashbag-member shop, and if the
accumulated points reach a certain number, the Member is entitled to
be refunded the same number of points in cash or purchase goods or
services at a price equal to the number of points at an
OKCashbag-affiliated entity or an OKCashbag-member shop.
(3) "OKCashbag Card" ("Member Card") shall mean the card issued by SK or
an
OKCashbag-affiliated entity recognized by SK and approved by SK to
allow members to normally receive OKCashbag service, on the front or
rear part of which the "OKCashbag" logo is inscribed.
(4) "OKCashbag-Affiliated Entity" or "OKCashbag Member Shop" shall mean a
business establishment or a shop which is approved to provide
OKCashbag service jointly with SK, by legally entering into a
cooperation agreement or a membership contract with SK.
(5) "OKCashbag Points" shall mean points given to members in accordance
with the standards agreed between SK and OKCashbag-Affiliated Entities
or OKCashbag Member Shops after verification of a Member's
identification through a verification procedure, such as presentation
of Member cards or entering the Member card number, at every purchase
of a good or service from an OKCashbag-Affiliated Entity or an
OKCashbag Member Shop.
(6) "Gmarket Place of Business" shall mean the on-line place of business
at xxxx://xxx.xxxxxxx.xx.xx which is operated directly by Gmarket or
by a third party on commission from Gmarket.
Article 3 (Collaborative Duties)
(1) SK and Gmarket shall perform all necessary duties to provide OKCashbag
Points to Members in accordance with the point accumulation rate under
Article 6(1), upon verification of the Member's identification through
SK's confirmation procedure, including entering the Member Card number
at the member's purchase of goods or service at the Gmarket Place of
Business. SK may make deductions in accordance with the OKCashbag
Service terms and conditions when providing OKCashbag Points to
Members.
(2) SK and Gmarket shall perform all necessary actions to allow Members
who have accumulated eligible number of points to credit his or her
OKCashbag Points to the purchase of any goods or services at the
Gmarket Place of Business, according to SK's rules.
Article 4 (Duties Related to Affiliated Cards)
(1) Gmarket may issue affiliated cards for joint management of members
upon SK's prior consent. The affiliated cards shall be designed to
include "OKCashbag" logo onto them, and any costs incurred to produce,
issue and manage affiliated cards and membership application forms
shall be borne by Gmarket, unless otherwise agreed between both
parties.
(2) Gmarket shall, in collecting personal information from affiliated card
members, inform the members that their personal information (including
changes) will be delivered to SK for the purpose of providing
OKCashbag Service and shall obtain clear consent thereto.
(3) Gmarket shall, without delay after having collected personal
information of an affiliated card member, deliver to SK the member's
membership application form or alternative information about the
member, as consented by SK in advance, and shall promptly notify SK of
any changes thereof.
Article 5 (General Matters of Compliance)
(1) Gmarket shall post the "OKCashbag" logo and an OKCashbag Service
notice at the Gmarket Place of Business to allow Members to easily
recognize Gmarket's cooperation arrangement with SK and shall
faithfully comply with instructions from SK in connection with the
collaborative duties to be performed to avoid any inconvenience to a
Member in obtaining the OKCashbag Service.
(2) Upon a Member's payment for goods or services, Gmarket shall, after
confirmation of transaction from SK or a person designated by SK,
issue to the Member his or her account details, stating the
verification number, accumulated OKCashbag Points, name, address, and
representative of the Member Shop, purchase date, and other necessary
information, or notify the Member of his or her transaction detail in
another manner consented by SK in advance. Such account information
shall show the Member the foregoing essential information.
(3) Gmarket shall provide OKCashbag Service only to Members who have
actually made purchases, unless otherwise mutually agreed, and shall
not refuse to award or credit to a purchase order OKCashbag Points to
a Member verified through the procedure set by SK, or impose on a
Member the service commission set forth in Article 6(4).
Article 6 (Point Payment and Service Commission)
(1) The point accumulation rate at the Gmarket Place of Business shall be
[****] of the payment amount if payment is made in cash, [****] if by
credit card and [****] if by OKCashbag Points.
(2) Upon a Member's purchase of a good or service at the Gmarket Place of
Business, after verification of the Member's identification pursuant
to SK procedure, Gmarket shall pay SK an amount equivalent to the
OKCashbag Points calculated based on the point accumulation rate
above, with [****] point equaling 0 XXX ("XXXxxxxxx Xxxxx Xxxxxx").
(3) Upon a Member's purchase of a good or service at the Gmarket Place of
Business, using his or her accumulated OKCashbag Points, after
verification of the Member's identification pursuant to SK procedure,
SK shall pay Gmarket an amount equivalent to the OKCashbag Points used
by the Member for the purchase, with [****] point equaling 1 KRW
("Used Points").
(4) In consideration for the joint operation of the OKCashbag Service,
Gmarket shall pay SK the sum ("Service Commission", net of VAT) of the
following:
i. [****] of the OKCashbag Point Amount;
ii. [****] of the Used Points;
iii. An amount separately agreed by both parties.
[****] = MATERIAL OMITTED: CONFIDENTIAL TREATMENT HAS BEEN REQUESTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
Article 7 (Calculation and Settlement)
(1) SK and Gmarket shall at each month-end calculate the OKCashbag Point
Amount (A), the Used Points (B), and the Service Commission (C) of the
relevant month into a mutually agreed upon payment unit and make
settlement based on the following formula, pursuant to Paragraphs (2)
and (3) below:
i. If [A+C] exceeds B, [(A+C)-B] shall be the settlement amount; and
ii. If [A+C] is less than B, [B-(A+C)] shall be the settlement
amount.
(2) If [A+C] exceeds B as a result of the calculation under Paragraph (1)
above, SK shall submit to Gmarket an invoice for the settlement amount
under paragraph (1), subparagraph (i) within 10 days from the
calculation, and Gmarket shall deposit the payment to a bank account
designated by SK in cash within 10 days from receipt of the invoice.
In connection herewith, SK may request Gmarket to settle the amount
through automatic bank transfer, in which case, Gmarket shall open an
account for automatic bank transfer at a bank consented by SK and
allow SK to withdraw from the relevant account the settlement amount
for the preceding month in cash on the 17th date (if this date is not
a working day for financial institutions, the following working day)
of every month.
(3) If [A+C] is less than B as a result of the calculation under Paragraph
(1) above, Gmarket shall submit to SK an invoice of the calculated
settlement amount under paragraph (1), subparagraph (ii) within 10
days from the date of calculation, and SK shall deposit in cash the
payment into the bank account designated by Gmarket within 10 days
from receipt of the invoice.
(4) If after settlement pursuant to Paragraphs (2) and (3) of this
Article, a transaction between Gmarket Place of Business and a Member
is cancelled, the cancellation shall be reflected at the next
settlement, unless otherwise agreed.
(5) Any party contesting the settlement under paragraphs (2) and (3) above
shall raise objection within 14 days from the date of completion of
settlement, and
if the settlement is confirmed by both parties to have been erroneous,
the difference shall be reflected at the next settlement.
(6) If the settlement under Paragraphs (2) and (3) is delayed, the
responsible party shall pay the other party a default interest
(defaulted principal x default interest rate x number of defaulted
days/365) for the number of delayed days. In such case, the default
interest rate shall be the average default interest rate of general
loan accounts of a bank designated by SK.
(7) In case settlement under Paragraphs (2) and (3) is delayed, the other
party may suspend collaborative activities under this Agreement until
the responsible party completes the settlement. In such case, the
responsible party shall notify the Members of the suspension at its
own place of business and shall handle with any claims/disputes
arising from the suspension of collaboration at its own cost and
responsibility.
Article 8 (Cooperative Matters)
(1) SK and Gmarket shall reciprocally exchange data necessary for analysis
of sales transition to the extent permitted under the relevant laws
and regulations.
(2) SK and Gmarket shall actively promote collaboration under this
Agreement through various media, and plan and implement various
promoting events to seek improvement of sales by both parties. The
details, including the volume of publicity and size of promotional
events shall be determined by mutual consultation to the extent
feasible by both parties.
(3) Upon expiration or termination of this Agreement, SK and Gmarket shall
immediately delete any identifying marks of the other party, including
company name, trademark and logo of the other party, at either party's
place of business.
Article 9 (Good Faith)
SK and Gmarket shall refrain from doing any acts that may damage the reputation
or image of the other party and shall faithfully perform the terms of this
Agreement.
Article 10 (Confidentiality)
(1) "Confidential Information" in this Agreement shall refer to any and
all business secrets and know-how of the other Party in oral, written
or computer file form, obtained from the other Party or gained with
respect to this Agreement, which includes the terms and conditions of
the rights and obligations of the parties under this Agreement.
(2) Neither Party shall use the confidential information for purposes
other than those contemplated in this Agreement. Neither Party shall
copy, reproduce, process, provide, sell or disclose to a third party
the confidential information without prior written consent by the
other party, and the disclosing Party shall be held responsible for
any intentional or negligent disclosure of the confidential
information.
(3) Each party may permit its officers and employees access to the
confidential information only if they signed a confidentiality
contract the same with or stricter than the provisions of paragraphs
(1) and (2) above and they need the confidential information in order
to achieve the objectives of this Agreement, and in the event the
officers or employees breach their obligation of confidentiality the
party shall be held responsible for it.
Article 11 (Term)
This Agreement shall be effective for one year from execution hereof and shall
be renewed year by year under the same terms and conditions, unless either Party
notifies the other Party of its intention not to extend the Agreement in writing
by not later than 30 days prior to expiration hereof.
Article 12 (Termination)
(1) In the event of breach or delinquent performance of this Agreement by
a Party, the other Party may demand correction or improvement thereof
in writing or by phone, and terminate this Agreement by notice in
writing if no correction or improvement is effected within 7 days of
request.
(2) A Party may immediately terminate this Agreement in writing in the
event the other Party is subject to any of the following:
i. An application for bankruptcy, composition, corporate
reorganization, workout or any other similar procedures has been
filed or has commenced;
ii. Major assets or business is transferred to a third party;
iii. Major assets are subject to attachment, provisional attachment,
provisional disposition or auction;
iv. The Party becomes subject to suspension of operation or
cancellation of business license, etc. by relevant authorities;
v. The Party defaults on the payment obligations under another
contract with the other Party or a third party without due cause,
negotiable securities such as notes and checks are dishonored
insolvent, or the Party's financial state has so deteriorated so
that the Party is found to be unable to perform this Agreement;
vi. Gmarket or its users become subject to legal or practical
sanction from relevant authorities with respect to the operation
and use of the Gmarket Place of Business, or have otherwise
committed a socially disruptive act; or
vii. Any other causes have arisen that substantially impede proper
performance of this Agreement.
(3) Both parties acknowledge that SK is entering into this Agreement or
any other similar agreements as part of its diverse new business
branch-out program and that SK may, after internal discussion,
determine to stop the OKCashbag Service cooperation with Gmarket (in
which case, SK shall sufficiently consult with Gmarket in advance, to
minimize mutual loss). If SK notifies Gmarket of the decision to cease
the business, this Agreement shall be automatically terminated 60 days
after the date of notice, in which case, neither Party may claim
damages arising from termination against the other Party.
(4) Both parties may terminate this Agreement at any time upon written
agreement.
(5) In the event this Agreement is terminated pursuant to Paragraphs (1)
through
(4), each Party's liability to the other party shall be
accelerated and shall be deemed due on the date of termination.
Article 13 (Confirmed Matters)
(1) The expiration under Article 11 and termination under Article 12 shall
not affect either Party's rights, liabilities, and right to damages
that have arisen prior to the expiration or termination.
(2) Notwithstanding the expiration or termination of this Agreement
Articles 14, 15(7) and 15(8) shall continue to be effective, and
Article 10 shall survive the termination of this Agreement for 5
years.
Article 14 (Damages)
The Party that has breached its obligations hereunder and caused damage to the
other Party shall compensate the other Party for the damage (including damage to
the reputation and image of the other Party).
Article 15 (General Provisions)
(1) This Agreement constitutes the entire agreement between the Parties
and all prior written or oral agreement existing between the Parties
regarding the subject matter of this Agreement shall become null and
void and be replaced hereby.
(2) Each party enters into this Agreement as an independent contractor and
shall not be deemed as the agent or representative of the other Party
for any purpose in exercising the rights and obligations hereunder. No
party shall have any authority to represent, impose legal or de facto
responsibility on or bind the other Party.
(3) Each Party shall notify the other Party in writing or by phone within
5 days of any of the following:
i. Change of company name, business registration number, address;
ii. Request for change of the details of collaboration;
iii. Determination to go out of business, to change type of business
or on merger/acquisition;
iv. Change of URL of Gmarket Place of Business;
v. Reasons described in Article 12(2); or
vi. Any matters likely affecting the performance of this Agreement.
(4) The Parties acknowledge that a Party's waiver of exercise of any legal
or contractual remedy against the other Party's breach of this
Agreement shall not constitute a waiver of the Party's rights against
the other Party under this Agreement.
(5) Neither Party may transfer or provide as security any right under this
Agreement to a third party without prior written consent of the other
Party nor allow a third party to undertake any obligation under this
Agreement, provided that SK may transfer its rights under this
Agreement to its affiliated company (under Article 2, subparagraph 3
of the "Monopoly Regulation and Fair Trade Act") and have its
affiliated company assume its obligation under this Agreement, upon
prior written notice to Gmarket.
(6) This Agreement may be altered or amended only by both Parties' written
agreement.
(7) This Agreement shall be governed by the laws of the Republic of Korea,
and any unclear matter in this Agreement shall be interpreted in
accordance with the laws, regulations and commercial practices of
Korea.
(8) Any disputes arising between the Parties in connection with this
Agreement shall be resolved through consultation between the Parties,
failing which, the dispute shall be submitted to the jurisdiction of
the Seoul Central District Court as the court of first instance.
IN WITNESSETH WHEREOF, confirming that the Agreement reflects their intention,
the Parties have executed, signed and affixed their seals to two copies of this
Agreement and shall respectively keep one copy.
December 15, 2005
SK Corporation
99 Seorin-Dong, Jongro-Gu, Seoul
Hun Xxxx Xxxx, Representative Director (seal)
Gmarket Inc.
6th Fl., Nam Seoul Bldg., 1304-3 Seocho-Dong, Seocho-Gu, Seoul
Young Bae Ku, Representative Director (seal)
