EXHIBIT 10.29
WEB AND CONTENT HOSTING AGREEMENT
This Web And Content Hosting Agreement (the "Agreement") is made
effective as of the 31/st/ day of December, 1999 (the "Effective Date"), by and
between PETsMART, Inc., a Delaware corporation having its address at 00000 X.
00xx Xxxxxx, Xxxxxxx, XX 00000, and its affiliates ("PETsMART") and
XXXxXXXX.xxx, Inc., a Delaware corporation having its address at 00 Xxxxx Xxxxx,
Xxxxx 000, Xxxxxxxx, XX 00000 ("XXXxXXXX.xxx").
Recitals
A. PETsMART wishes to make available PETsMART information online via an e-
commerce website to be operated by XXXxXXXX.xxx.
B. PETsMART desires to engage the services of XXXxXXXX.xxx to host PETsMART's
non-e-commerce information on the XXXxXXXX.xxx Website and potentially to host
PETsMART's e-commerce business(es), including State Line Tack
(xxxxxxxxxxxxx.xxx).
C. PETsMART and XXXxXXXX.xxx have previously entered into a Trademark License
Agreement dated May 12, 1999 (the "Trademark Agreement"), pursuant to which
PETsMART will license the use of the PETsMART trademark and the XXXxXXXX.xxx
domain name to XXXxXXXX.xxx, and are concurrently entering into a Marketing
Agreement, and a Distribution and Fulfillment Agreement.
Now, Therefore, the parties agree as follows:
1. Definitions.
1.1 "Domain Name" means the domain name "XXXxXXXX.xxx" and such other
domain name as may be specified by PETsMART from time to time, and, unless
otherwise specified, the domain name "xxxxxxxxxxxxx.xxx".
1.2 "Hosting Services" means the services set forth in Section 3
("XXXxXXXX.xxx Hosting Services").
1.3 "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 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 logos, "rental" rights and rights to remuneration), whether arising
by operation of law, contract, license, or oth-
erwise, 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).
1.4 "PETsMART Content" means all text, copy, editorial, images, pictures,
sound, graphics, video and other data supplied by PETsMART to XXXxXXXX.xxx
pursuant to Sections 2.1 ("Delivery of Initial Content"), 3.2(a) ("Hosting of
PETsMART Corporate Content and PETsMART Additional Content"), or 3.3(a)
("Hosting of PETsMART E-Commerce Websites"), as such materials may be modified
from time to time. "PETsMART Content" specifically includes "PETsMART Corporate
Content" and "PETsMART Additional Content", as defined below, as well as content
related to PETsMART's operation of the PETsMART E-Commerce Websites as hosted by
XXXxXXXX.xxx. "PETsMART Content" specifically excludes text, pictures, sound,
graphics, video, and other data created by XXXxXXXX.xxx for use in the online
sale of pet-related products at the XXXxXXXX.xxx e-commerce website.
(a) "PETsMART Corporate Content" means all PETsMART Content related to
PETsMART's corporate, public relations, recruiting, financial and investor
relations material, public services information, retail store information (such
as addresses, phone numbers and hours of operation), vendor information and
communications, and other related non-e-commerce material.
(b) "PETsMART Additional Content" means all PETsMART Content related
to PETsMART's store-related promotions (including but not limited to store
locator and related information, Humane Society locator information, and
announcements regarding PETsMART charities, including adoption and Pets 911),
store events (including but not limited to announcements promoting adoptions at
the stores, in-store specials, or other events), coupons for in-store
redemption, in-store vet and grooming services (including online booking of vet
and grooming services offered in PETsMART's physical stores), and other
promotional material that PETsMART desires to disseminate via pages on the
XXXxXXXX.xxx Website.
1.5 "PETsMART E-Commerce Website" means an e-commerce website operated by
PETsMART, and specifically excludes the XXXxXXXX.xxx E-Commerce Website operated
by XXXxXXXX.xxx. PETsMART currently operates one PETsMART E-Commerce Website
based on its catalog operations (specifically, xxxxxxxxxxxxx.xxx), PETsMART
explicitly reserves the right to commence e-commerce businesses as online
representations of its current Pet Professional Direct (formerly Groomer
Direct), Xxxxx, and National Bridle catalogs. Nothing in this Agreement
precludes PETsMART from providing procurement, distribution and fulfillment,
customer support, third-party website administration, and other services
("Enumerated Services") on an outsourced basis to third parties selling
companion-animal-related products online, (i) so long as such products or
services are not marketed to consumers using the PETsMART trade xxxx and do not
include any PETsMART corporate or private-label brands, (ii) and provided
PETsMART does not provide such Enumerated Services to any online retailer of
compan ion-animal-related products whose total SKUs of companion-animal-related
products exceeds 30% of its total number of SKUs offered for sale to consumers
under the auspices of its Corpo-
rate identity (e.g., PETsMART could not provide the Enumerated Services to
Xxx.xxx if 30% or more of Xxx.xxx's total SKU's offered to consumers from any
Xxx.xxx entity (such as any xxx.xxxx.xxx, xxx.xxxxxx.xxx, xxx.xxxxx.xxx)
consists of companion-animal-related products; and (iii) provided PETsMART shall
not provide the Enumerated Services to any of the following direct competitors
of XXXxXXXX.xxx: Xxxx.xxx, Xxxxxxx.xxx, Xxxxxxxx.xxx, Xxxxxxx.xxx, Xxxxx.xxx,
Xxxxxxxxxxxx.xxx, Xxxxxxxxx.xxx, and online grocery stores whose primary
business is food (i.e., 90% or more of its revenues are derived from food
sales), such as Xxxxxx.xxx and Xxxxxxxxx.xxx. Notwithstanding the foregoing,
PETsMART may provide the Enumerated Services to its existing clients as of the
Effective Date of this Agreement. PETsMART agrees to use reasonable best efforts
to assist in introducing any such third party to XXXxXXXX.xxx to provide
XXXxXXXX.xxx the opportunity to negotiate with such party to enter into a
relationship with XXXxXXXX.xxx to integrate the third party's online offering
into the Website. PETsMART also reserves the right to place online
advertisements with third parties to promote its physical retail locations
and/or catalogs.
1.6 "PETsMART Pages" means a designated, prominently identified area
available directly from the home page within the XXXxXXXX.xxx Website.
1.7 "XXXxXXXX.xxx Servers" shall mean the XXXxXXXX.xxx servers and
associated software used by XXXxXXXX.xxx for the XXXxXXXX.xxx Website.
1.8 "Property" means the following: (1) that equipment existing as of May
12, 1999 in which PETsMART has invested for the purpose of developing its then-
existing and planned website; (2) any internally developed content or software
incorporated into or used by PETsMART as of May 12, 1999, for developing,
maintaining or running its then-existing or planned website; (3) licenses to
third-party software incorporated into or used by PETsMART as of May 12, 1999,
for developing, maintaining or running its then-existing or planned website; (4)
interest in works by third-party designers and other service contractors
incorporated into or used by PETsMART as of May 12, 1999, for developing,
maintaining or running its then-existing or planned website; (5) all rights in
other PETsMART agreements listed in Exhibit A ("List of Property"); (6) any of
the foregoing related to the X.X. Xxxxxx on-line business xxxxxxxx.xxx
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(PETsMART's existing online companion-animal-related e-commerce business); and
(7) a royalty free, non-exclusive worldwide right to use the PETsMART Content on
the XXXxXxxx.xxx website for the duration of the Trademark Agreement. Without
limiting the foregoing, PETsMART shall retain all liability for any claims
pertaining to debts or obligations that fully accrued prior to May 12, 1999
and/or arising from its license, use and/or other activities prior to May 12,
1999 in connection with the Property before its transfer to XXXxXXXX.xxx.
1.9 "Website" means the user interface, functionality and content made
available on pages under the Domain Names.
2. XXXxXXXX.xxx Website Development.
2.1 Delivery of Initial Content. PETsMART shall deliver to XXXxXXXX.xxx
all Content that PETsMART intends for and desires XXXxXXXX.xxx to incorporate
into the XXXxXXXX.xxx E-Commerce Website (the "Initial Content").
2.2 Development of Websites. XXXxXXXX.xxx will be responsible for
development (including selection and arrangement of content) of the XXXxXXXX.xxx
Website. To the extent XXXxXXXX.xxx desires to apply for additional domain names
or trademarks, that certain Trademark License Agreement (dated on or about May
14, 1999) between PETsMART, Inc. and XXXxXXXX.xxx, Inc. (in specific, Section
3.4 (Assistance)) shall govern the parties' respective rights and obligations in
connection with such additional applications.
2.3 Approval. XXXxXXXX.xxx shall submit to PETsMART for its prior
approval all logos and templates that XXXxXXXX.xxx shall use to present the
products for purchase on the XXXxXXXX.xxx Website. PETsMART shall have five (5)
business days to reject such logos or templates in its reasonable discretion if
PETsMART believes that the use of such logos or templates does not meet the
standards of quality required by PETsMART. PETsMART shall exercise its approval
rights in good faith, and any request for modification of a submission shall
include an adequate explanation of the reasons for such rejection.
2.4 Server Logs. Upon PETsMART's request (but no more than monthly),
XXXxXXXX.xxx will deliver to PETsMART in electronic format unprocessed server
logs indicating activity in the PETsMART Pages and PETsMART E-Commerce Website.
3. XXXxXXXX.xxx Hosting Services.
3.1 General. XXXxXXXX.xxx will be responsible for procurement of all
additional equipment, software, content, and related maintenance services
necessary in addition to the Property to develop, maintain, or run the
XXXxXXXX.xxx Websites as XXXxXXXX.xxx and PETsMART deem appropriate.
3.2 Hosting of PETsMART Corporate Content and PETsMART Additional Content.
XXXxXXXX.xxx shall provide Hosting Services for the PETsMART Corporate Content
and PETsMART Additional Content on the PETsMART Pages. The Hosting Services
shall include connectivity and hosting of such content on servers provided by
XXXxXXXX.xxx.
(a) PETsMART will deliver the PETsMART Corporate Content and PETsMART
Additional Content to XXXxXXXX.xxx in a mutually agreed upon convention digital
format (e.g., word format on disc or by e-mail) and XXXxXXXX.xxx will make it
available for viewing in the PETsMART Pages, which shall be available directly
from the home page of the XXXxXXXX.xxx Website.
(b) PETsMART shall have the right to approve the look and feel as well
as specific presentation and use of the PETsMART Content in the PETsMART Pages;
however, will be controlled by PETsMART; however, XXXxXXXX.xxx may reformat
such Content as necessary to present it on the PETsMART Pages.
(c) XXXxXXXX.xxx will assist in execution and ongoing management of
the PETsMART Pages, including, but not limited to, the following: providing
regular maintenance, updating the PETsMART Pages to retain consistency with the
rest of the XXXxXXXX.xxx Site, as requested by PETsMART, and ensuring that the
PETsMART Pages are maintained at a level of technological sophistication
corresponding to that implemented in the XXXxXXXX.xxx Website.
3.3 Hosting of PETsMART E-Commerce Websites. At PETsMART's option,
XXXxXXXX.xxx will provide Hosting Services for the PETsMART E-Commerce Website,
xxxxxxxxxxxxx.xxx and, upon mutual agreement, other E-Commerce Websites.
PETsMART shall be solely responsible for maintenance and defense of the
registration of any applicable URL's for such E-Commerce Websites.
(a) PETsMART will deliver the PETsMART Content comprising the PETsMART
E-Commerce Website to XXXxXXXX.xxx in a format to be mutually agreed upon, or
unless otherwise agreed upon in static html format, and XXXxXXXX.xxx will host
the Website and make best commercially reasonable efforts to make them available
for viewing at the respective Domain Name(s) as directed by PETsMART.
(b) PETsMART will be responsible for, and will own (as between the
parties) all design, content (including PETsMART Content), and graphic updates
of the PETsMART E-Commerce Website.
(c) XXXxXXXX.xxx will provide PETsMART with such on-site and remote
access to the XXXxXXXX.xxx servers (including software) as XXXxXXXX.xxx has from
its third party server provider, and as required by PETsMART for operation of
the PETsMART E-Commerce Website, and will ensure that XXXxXXXX.xxx's services
meet the standards set in Section 7 ("Service Standards").
3.4 PETsMART License. During the period that XXXxXXXX.xxx provides
Hosting Services pursuant to this Section 3, PETsMART hereby grants to
XXXxXXXX.xxx a non-exclusive, non-sublicenseable, royalty-free, worldwide
license to reproduce, distribute, publicly perform, publicly display and
digitally perform the PETsMART Content only on or in conjunction with the
Website for which such PETsMART Content was submitted by PETsMART. PETsMART
grants no rights other than explicitly granted herein, and XXXxXXXX.xxx shall
not exceed the scope of its license.
3.5 In the event PETsMART requests XXXxXXXX.xxx to perform Hosting
Services for other PETsMART E-Commerce Websites, the parties shall negotiate in
good faith the terms and conditions for such hosting services, fees for which
shall be on an activity based costing basis.
4. Payment and Consideration.
4.1 Transfer of Property: Assignment and Cooperation.
(a) Assignment. To the extent that it is able to do so under all
applicable contracts PETsMART hereby assigns the Property to XXXxXXXX.xxx. If
PETsMART is unable to transfer or assign to XXXxXXXX.xxx the rights to any
Property described in (3), (4), (5), or (6) of Section 1.8 ("Property") above,
then PETsMART will sublicense such Property to XXXxXXXX.xxx on an exclusive or
non-exclusive basis to the extent that it is able to do so under the applicable
contract. A list of the Property is set forth in Exhibit A (" List of
Property") to this Agreement.
(b) Cooperation. PETsMART will take all steps reasonably necessary to
effect the transfer of the Property to XXXxXXXX.xxx and upon its reasonable
request, including but not limited to executing an assignment of copyright for
any copyrights owned by PETsMART in the Property.
4.2 Payment for Hosting Services for PETsMART Corporate Content And
PETsMART Additional Content. In consideration of the transfer and assignment
set forth in Section 4.1(a), XXXxXXXX.xxx shall bear the cost of Hosting
Services related to hosting of PETsMART Corporate Content and PETsMART Pages.
XXXxXXXX.xxx shall also bear the cost of Hosting Services related to hosting of
PETsMART Additional Content as mutually agreed upon.
4.3 Payment for Hosting E-commerce Website. If PETsMART chooses to use
XXXxXXXX.xxx to host a PETsMART E-Commerce Website, then in consideration of the
hosting services provided for the PETsMART E-commerce Website, PETsMART shall
pay XXXxXXXX.xxx the hosting fee and connectivity fee based upon XXXxXXXX.xxx's
activity based costs. XXXxXXXX.xxx's cost is intended to reflect the fully
loaded actual cost of connectivity and hosting (cost of servers and applicable
software license fee(s)).
4.4 Timing Of Payment of Hosting Fees. If applicable, XXXxXXXX.xxx will
invoice PETsMART for E-Commerce Website Hosting services described herein and
provided hereunder on or before the tenth (10/th/) day after the end of each
month for XXXxXXXX.xxx's cost, and PETsMART shall pay such invoice on or before
the tenth day after receipt of such invoice.
5. Taxes.
(a) Indemnity. PETsMART shall be liable for, and shall indemnify,
defend, and hold harmless XXXxXXXX.xxx from and against, all "Indemnifiable
Taxes," as defined in this Section 5(a). For the purposes of this Section 5,
"Taxes" shall mean all taxes (other than taxes based on XXXxXXXX.xxx's income),
fees, duties, and other governmental charges (including any taxes, fees, duties,
or other governmental charges imposed on a third party that XXXxXXXX.xxx is
required to withhold or collect) and any interest, additions to tax, or
penalties related thereto. For the purposes of this Section 5, "Indemnifiable
Taxes" shall mean all Taxes incurred with respect to goods or services provided
by either XXXxXXXX.xxx or PETsMART pursuant to this Agreement and all reasonable
out-of-pocket attorneys' fees and other reasonable out-of-pocket expenses,
including court costs, associated with the resolution of any Contest (as defined
below) with respect to such Taxes.
(b) Notice. If XXXxXXXX.xxx is made aware as part of an audit or
other administrative proceeding related to Taxes (a "Contest"), that a taxing
authority is asserting a claim for Indemnifiable Taxes, then XXXxXXXX.xxx shall
promptly notify PETsMART of such claim in writing.
(c) Control. XXXxXXXX.xxx shall permit PETsMART, at PETsMART's own
cost and expense, to control that portion of the Contest related to
Indemnifiable Taxes; provided, however, that PETsMART's control must not
unreasonably interfere with the remaining portion of the Contest. In the event
that PETsMART does not reasonably contest the imposition of Taxes on
XXXxXXXX.xxx, XXXxXXXX.xxx may assume control of the portion of the Contest
attributable to Indemnifiable Taxes at PETsMART's reasonable expense. PETsMART
may re-assume control of that portion of the Contest related to Indemnifiable
Taxes at any time.
(d) Settlement. XXXxXXXX.xxx shall not settle or otherwise compromise
any portion of a Contest related to Indemnifiable Taxes without the prior
written consent of PETsMART, which consent shall not be unreasonably withheld.
PETsMART must inform XXXxXXXX.xxx of all terms of any proposed settlement prior
to settling that portion of the Contest related to Indemnifiable Taxes and, if
XXXxXXXX.xxx objects to PETsMART entering into such settlement, PETsMART shall
pay to XXXxXXXX.xxx the amount that would be payable by PETsMART under this
Section 5 if such settlement were entered into, and upon payment of such amount,
any liability of PETsMART under this Section 5 shall terminate for the portion
of the Indemnifiable Taxes that would have been settled.
(e) Consistency. XXXxXXXX.xxx shall not take any position that
Indemnifiable Taxes may be due and owing without the prior consent of PETsMART
which consent may not be unreasonably withheld. XXXxXXXX.xxx shall not take any
action that could result in any taxing authority asserting a claim subject to
indemnification hereunder. For purposes of this section 5(e), a position or
action shall not be a breach of this section unless such action or position is
(i) part of a course of conduct, (ii) a significantly frequent practice, or
(iii) intentional.
(f) Powers of Attorney. XXXxXXXX.xxx shall execute any powers-of-
attorney or similar documents necessary for PETsMART to control the portion of a
Contest related to Indemnifiable Taxes.
(g) Information. PETsMART shall promptly notify XXXxXXXX.xxx of
material developments in that portion of a Contest that is controlled by
PETsMART.
(h) Cooperation. PETsMART and XXXxXXXX.xxx shall provide, or cause to
be provided, to each other, the assistance of officers, employees,
representatives and affiliates, or such assistance as may reasonably be
requested by the other party in connection with the portion of the Contest
related to Indemnifiable Taxes. The requesting party shall reimburse the other
party for the reasonable out-of-pocket cost of such other party making the
assistance of such persons available. The parties shall use reasonable best
efforts to make available persons no longer employed. PETsMART and XXXxXXXX.xxx
shall retain, or cause to be retained, for so long as any taxable year in which
this Agreement is in effect shall remain open for adjustments, any records or
information related to Indemnifiable Taxes; provided however, that XXXxXXXX.xxx
shall not be required to retain, or cause to be retained, records and
information that PETsMART maintains in the ordinary course of PETsMART's
operations. XXXxXXXX.xxx shall, in the case of any particular calendar year, be
responsible for costs of retaining any records or information related to
Indemnifiable Taxes for the ten year period following such calendar year and,
thereafter, any such costs shall be borne equally by each of XXXxXXXX.xxx and
PETsMART. With reasonable notice, any records or information so retained shall
be made available to the requesting party in a commercially reasonable manner.
The requesting party shall reimburse the other party for such party's reasonable
out-of-pocket costs, including without limitation, copying costs, reasonably
incurred in making such records or information available. In addition, the
requesting party shall enter into reasonable non-disclosure and use agreements
that limit the use of the records and the information contained therein by the
requesting party to use only in the particular Contest.
(i) Non-Compliance. If XXXxXXXX.xxx fails to comply substantially
with any of the provisions set forth in this Section 5, PETsMART shall be
relieved of any obligation under this Section 5 to the extent of any actual
prejudice suffered by PETsMART as a result of such failure.
6. Late Payment. Each party will pay interest on late payments at the rate of
one and one-half percent (1.5%) per month or the highest interest rate allowed,
whichever is lower.
7. Service Standards. The Hosting Services provided by XXXxXXXX.xxx under
this Agreement will meet or exceed the service level generally provided by the
top twenty-five percent (25%) of e-commerce websites, and, without limiting the
foregoing, will conform to these standards that XXXxXXXX.xxx adheres to in the
operation of the XXXxXXXX.xxx Website.
7.1 Site Backup. XXXxXXXX.xxx shall make best commercially reasonable
efforts to maintain at its expense a complete and current copy of the Websites
on a server located at a remote location. In the event that service is
interrupted to the Websites, and to the extent it is reasonably possible the
remote server shall be immediately activated so that public access to the
Websites continues without interruption. XXXxXXXX.xxx shall make best
commercially reasonable efforts to compile a complete backup at least daily.
7.2 Availability of Web Sites. The Websites shall be publicly available
to users a minimum of 99% of the time during any 24 hour period, 99% of the time
during any thirty day period; and 99% of the time during any 30 day period and
there will be no period of interruption in public accessibility to the Websites
that exceeds 4 continuous hours (except for reasonably scheduled necessary
maintenance and temporary outages caused by circumstances beyond XXXxXXXX.xxx's
control).
7.3 Response Time. The mean response time for server response to all
accesses to the Websites shall not exceed more than six seconds during any 1
hour period.
7.4 Bandwidth. The bandwidth representing the Websites' connection to the
Internet shall be sufficient to prevent any user material delays from accessing
the Websites or viewing or retrieving items or content therefrom.
7.5 Security. XXXxXXXX.xxx shall make commercially reasonable efforts to
prevent unauthorized access to restricted areas of the Websites and any
databases or other sensitive material generated from or used in conjunction with
the Websites, and XXXxXXXX.xxx shall promptly notify PETsMART of any known
security breaches or holes and, in the event any unauthorized access occurs,
XXXxXXXX.xxx shall use its best efforts to detect, identify and eliminate such
unauthorized access as soon as possible and to prevent the reoccurrence thereof.
8. Ownership.
8.1 Ownership of PETsMART Content. As between XXXxXXXX.xxx and PETsMART,
any PETsMART Content delivered to XXXxXXXX.xxx by PETsMART, under this Agreement
or otherwise, shall at all times remain the property of PETsMART. XXXxXXXX.xxx
shall have no rights in such PETsMART Content other than the limited right to
use such content only as required for XXXxXXXX.xxx to perform in accordance with
this Agreement.
8.2 Ownership of XXXxXXXX.xxx Website and XXXxXXXX.xxx Servers. As
between XXXxXXXX.xxx and PETsMART, the XXXxXXXX.xxx Website (exclusive of any
PETsMART Content contained therein), and the XXXxXXXX.xxx Servers shall at all
times remain the property of XXXxXXXX.xxx or its Licensor(s). PETsMART shall
have no rights in the XXXxXXXX.xxx Website or the XXXxXXXX.xxx Servers other
than the right to use the Web-
site and the XXXxXXXX.xxx Servers as permitted herein and the rights to the
PETsMART trademarks (including the Domain Name) as set forth in the Trademark
Agreement.
9. Warranties.
9.1 PETsMART Warranties. PETsMART warrants that the PETsMART Content, the
PETsMART Pages and any PETsMART E-commerce Website hosted by XXXxXXXX.xxx will
not: (a) infringe on the Intellectual Property Rights of any third party or any
rights of publicity or privacy; (b) violate any law, statute, ordinance or
regulation (including without limitation the laws and regulations governing
export control, unfair competition, antidiscrimination or false advertising);
(c) be defamatory, trade libelous, unlawfully threatening or unlawfully
harassing; (d) be obscene, child pornographic or harmful to minors; or (e)
contain any viruses, trojan horses, trap doors, back doors, easter eggs, worms,
time bombs, cancelbots or other computer programming routines that are intended
to damage, detrimentally interfere with, surreptitiously intercept or
expropriate any system, data or personal information.
(a) Breach of Warranties. In the event that the PETsMART content,
and/or the PETsMART pages, and/or the content of the E-commerce Website violate
any of the warranties set forth in Section 9.1, XXXxXXXX.xxx may remove the
content that is in violation of Section 9.1, and shall provide PETsMART with
concurrent notice of such violation along with notice that the offending content
has been removed.
9.2 XXXxXXXX.xxx Warranties. XXXxXXXX.xxx warrants that the Websites,
exclusive of the PETsMART Content and the PETsMART Pages, will not (a) infringe
on the Intellectual Property Rights of any third party or any rights of
publicity or privacy; (b) violate any law, statute, ordinance or regulation
(including without limitation the laws and regulations governing export control,
unfair competition, antidiscrimination or false advertising); (c) be defamatory,
trade libelous, unlawfully threatening or unlawfully harassing; (d) be obscene,
child pornographic or harmful to minors; or (e) contain any viruses, trojan
horses, trap doors, back doors, easter eggs, worms, time bombs, cancelbots or
other computer programming routines that are intended to damage, detrimentally
interfere with, surreptitiously intercept or expropriate any system, data or
personal information.
9.3 Year 2000. XXXxXXXX.xxx warrants that the XXXxXXXX.xxx Servers will:
(a) include year 2000 date conversion and compatibility capabilities including,
but not limited to: century recognition; calculations which accommodate same
century and multi-century formulas and date values; correct sort ordering; and
interface values that reflect the century; (b) manage and manipulate data
involving dates, including single century formulas and multi-century formulas,
and will not cause an abnormal abend or abort within the application or result
in the generation of incorrect values or invalid outputs including such duties;
(c) provide that all date-related user interface functionalities and data fields
include the indication of the correct century; and (d) provide that all date-
related system-to-system or application-to-application data interface
functionalities will include the indication of the correct century.
10. Disclaimer of Warranties. EXCEPT AS SET FORTH HEREIN, EACH PARTY EXPRESSLY
DISCLAIMS ALL WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED,
INCLUDING WITHOUT LIMITATION THE IM PLIED WARRANTIES OF TITLE, NON-
INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
11. Limitation on Liability. IN THE EVENT OF A BREACH BY XXXxXXXX.XXX OF ITS
OBLIGATIONS TO HOST PETsMART CORPORATE CONTENT AS SET FORTH HEREIN, AND WITHOUT
LIMITING ANY OF PETSMART'S REMEDIES HEREUNDER, XXXXXXXX.XXX SHALL BE LIABLE FOR
DIRECT DAMAGES TO PETSMART. NEITHER PARTY SHALL BE LIABLE FOR ANY LOST PROFITS,
NOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSE QUENTIAL OR EXEMPLARY NOR PUNITIVE
DAMAGES ARISING FROM THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
12. Indemnity.
12.1 PETsMART Indemnity. PETsMART shall defend and hold harmless,
XXXxXXXX.xxx against any third-party claim, action, suit or proceeding alleging
any breach of the covenants contained in Section 9.1 ("PETsMART Warranties").
Subject to Section 12.3 ("Mechanics Of Indemnity") PETsMART shall indemnify
XXXxXXXX.xxx for all losses, damages, liabilities and all reasonable expenses
and costs incurred by XXXxXXXX.xxx arising from any such claim, action, suit or
proceeding.
12.2 XXXxXXXX.xxx Indemnity. XXXxXXXX.xxx shall defend and hold harmless,
PETsMART against any third-party claim, action, suit or proceeding resulting
from XXXxXXXX.xxx's acts, omissions or misrepresentations under this Agreement
(including, without limitation, XXXxXXXX.xxx's breach of the warranties
contained in Section 9.2 ("XXXxXXXX.xxx Warranties") and Section 9.3 ("Year
2000")). Subject to Section 12.3 ("Mechanics of Indemnity"), XXXxXXXX.xxx shall
indemnify PETsMART for all losses, damages, liabilities and all reasonable
expenses and costs incurred by PETsMART arising from any such claim, action,
suit or proceeding.
12.3 Mechanics of Indemnity. The indemnifying party's obligations are
conditioned upon the indemnified party: (a) giving the indemnifying party prompt
written notice of any claim, action, suit or proceeding for which the
indemnified party is seeking indemnity; (b) granting control of the defense and
settlement to the indemnifying party; and (c) reasonably cooperating with the
indemnifying party at the indemnifying party's expense.
13. Confidential Information.
13.1 Disclosure Of Confidential Information. Each party (the "Disclosing
Party") may from time to time during the term of this Agreement disclose to the
other party (the "Receiving Party") certain information regarding the Disclosing
Party's business, including technical, marketing, financial, employees,
planning, and other confidential or proprietary information ("Confidential
Information"). The Disclosing Party will xxxx all Confidential Information in
tangible form as "confidential" or "proprietary" or with a similar legend. The
Disclosing Party will identify all Confidential Information disclosed orally as
confidential at the time of disclosure and provide a written summary of such
Confidential Information to the Receiving Party within thirty (30) days after
such oral disclosure. Regardless of whether so marked or identified, however,
any information that the Receiving Party knew or should have known, under the
circumstances, was considered confidential or proprietary by the Disclosing
Party, will be considered Confidential Information of the Disclosing Party.
13.2 Protection of Confidential Information. The Receiving Party will not
use any Confidential Information of the Disclosing Party for any purpose not
expressly permitted by this Agreement, and will disclose the Confidential
Information of the Disclosing Party only to those employees or contractors of
the Receiving Party who have a need to know such Confidential Information for
purposes of this Agreement and who are under a duty of confidentiality no less
restrictive than the Receiving Party's duty hereunder. The Receiving Party will
protect the Disclosing Party's Confidential Information from unauthorized use,
access, or disclosure in the same manner as the Receiving Party protects its own
confidential or proprietary information of a similar nature and with no less
than reasonable care.
13.3 Exceptions. The Receiving Party's obligations under Section 13.2
("Protection of Confidential Information") with respect to any Confidential
Information of the Disclosing Party will terminate if and when the Receiving
Party can document that such information: (a) was already known to the Receiving
Party at the time of disclosure by the Disclosing Party; (b) was disclosed to
the Receiving Party by a third party who had the right to make such disclosure
without any confidentiality restrictions; (c) is or through no fault of the
Receiving Party has become, generally available to the public; or (d) is
independently developed by the Receiving Party without access to, or use of, the
Disclosing Party's Confidential Information. In addition, the Receiving Party
will be allowed to disclose Confidential Information of the Disclosing Party to
the extent that such disclosure is (i) approved in writing by the Disclosing
Party, (ii) necessary for the Receiving Party to enforce its rights under this
Agreement in connection with a legal proceeding; or (iii) required by law or by
the order of a court or similar judicial or administrative body, provided that
the Receiving Party notifies the Disclosing Party of such required disclosure
promptly and in writing and cooperates with the Disclosing Party, at the
Disclosing Party's reasonable request and expense, in any lawful action to
contest or limit the scope of such required disclosure.
13.4 Return of Confidential Information. The Receiving Party will return
to the Disclosing Party or destroy all Confidential Information of the
Disclosing Party in the Receiving
Party's possession or control promptly upon the written request of the
Disclosing Party on the earlier of the expiration or termination of this
Agreement. At the Disclosing Party's request, the Receiving Party will certify
in writing that it has fully complied with its obligations under this Section.
13.5 Confidentiality of Agreement. Neither party will disclose any of the
financial terms of the Agreement to anyone other than its attorneys, accountants
and other professional advisors under a duty of confidentiality except as
required by law, pursuant to a mutually agreeable press release, or in
connection with a proposed merger, financing or sale of such party's business,
provided that any third party to whom the terms of this Agreement are to be
disclosed signs a confidentiality agreement reasonably satisfactory to the other
party to this Agreement.
14. Term and Termination.
14.1 Term. The term of this Agreement is co-extensive with the Trademark
Agreement with respect to hosting of the non-ecommerce PETsMART Content and the
PETsMART Pages, unless this Agreement is earlier terminated by PETsMART for
breach pursuant to Section 14.2 ("Termination for Breach"). The term of this
Agreement with respect to Web Hosting of any PETsMART E-Commerce Website is five
years, unless this Agreement is earlier terminated by either party for breach
pursuant to Section 14.2 ("Termination for Breach").
14.2 Termination For Breach. With the exception of XXXxXXXX.xxx's
obligation to host the non-e-commerce PETsMART Content and PETsMART Pages,
either party may terminate this Agreement if the other party is in material
breach of the Agreement. With respect to the PETsMART Content and the PETsMART
pages, XXXxXXXX.xxx's sole and exclusive remedy in the event of a breach of
Section 9.1 ("PETsMART Warranties") shall be to remove the offending content as
set forth in Section 9.1(a).
14.3 Transition Services. In the event of termination of this Agreement,
XXXxXXXX.xxx shall, at PETsMART's request, make commercially reasonable
accommodations to continue to provide the services set forth in this Agreement
for a period of up to 30 days following the date of termination of this
Agreement and will cooperate with PETsMART in order to allow PETsMART to move
the PETsMART E-Commerce Website and the PETsMART Pages to a new host server and
to arrange for a new e-commerce site for the online sale of PETsMART Products.
14.4 Effect of Termination. Sections 1 ("Definitions"), 6 ("Ownership"),
9.1(a) ("Warranties") 12 ("Indemnity"), 13 ("Confidential Information"), 14.4
("Effect of Termination"), and 15 ("General Provisions") shall survive
termination of this Agreement. Except as provided in Section 14.3 ("Transition
Services"), upon the termination of this Agreement for any reason and upon
request by PETsMART at any time, XXXxXXXX.xxx shall promptly return all PETsMART
Content and copies thereof. Subject to XXXxXXXX.xxx's obligations pursuant to
Section 14.3 ("Transition Services"), XXXxXXXX.xxx shall remove all copies of
the
PETsMART Content from servers within its control and use reasonable efforts to
remove any references to PETsMART or the PETsMART Content from any site which
caches, indexes or links to the Websites.
14.5 Dispute Resolution: E-Commerce Websites. This provision applies only
to any dispute arising out of hosting of PETsMART E-Commerce Websites, and does
not apply to any dispute arising out of hosting of non-e-commerce PETsMART
Content or PETsMART Pages, which shall be governed by the procedure set forth in
Section 14.6 (Other Dispute Resolution). PETsMART and XXXxXXXX.xxx are
implementing this Agreement in good faith. However, should either party believe
that the other party is in breach of this Agreement, the parties shall attempt
in good faith to resolve any dispute arising out of or relating thereto promptly
by negotiations. All negotiations at all levels pursuant to this Section 14 are
confidential and shall be treated as compromise and settlement negotiations for
purposes of the Federal Rules of Evidence and state rules of evidence. Each
party shall bear its own expenses in connection with such negotiations pursuant
to subsection 14.5(a); expenses in connection with any subsequent litigation
shall be governed by Section 15.11 ("Attorneys' Fees").
(a) Notice and Cure. Except as set forth in 9.1(a), either party (the
"Non-Breaching Party") may give the other party (the "Breaching Party') written
notice of any material breach. The Breaching Party shall then have thirty (30)
days to cure the material breach. If the Breaching Party does not effect a cure
to the Non-Breaching Party's satisfaction, the chief executive officers of the
parties shall, within the following fifteen (15) days, confer in good faith for
the purpose of satisfactorily resolving the material breach.
(b) Arbitration.
(i) Arbitrators. No later than March 15, 2000, the parties will
jointly select a list of at least three, and no more than six, arbitrators (the
"Panel") from whom arbitra tor(s) shall be selected to resolve any disputes.
(ii) In General. If a resolution satisfactory to the Non-
Breaching Party is not achieved within the fifteen-day period set forth in
Section 14.5(a), the parties agree promptly to submit the dispute to binding
arbitration before an arbitrator selected from the Panel, such arbitration to be
held in the city of the defending party's home offices under the then-existing
rules for commercial disputes of the American Arbitration Association. Each
party irrevocably submits to the jurisdiction and venue set forth in this
Section 14.5(b).
14.6 Other Dispute Resolution. This provision applies only to any dispute
arising out of hosting of non-e-commerce PETsMART Content or PETsMART Pages, and
does not apply to any dispute arising out hosting of PETsMART E-Commerce
Websites, which shall be governed by the procedure set forth in Section 14.5
(Dispute Resolution: E-Commerce Websites). PETsMART and XXXxXXXX.xxx are
implementing this Agreement in good faith. However, should either party believe
that the other party is in breach of this Agreement, the parties shall
attempt in good faith to resolve any dispute arising out of or relating thereto
promptly by negotiations. All negotiations at all levels pursuant to this
Section 14 are confidential and shall be treated as compromise and settlement
negotiations for purposes of the Federal Rules of Evidence and state rules of
evidence. Each party shall bear its own expenses in connection with such
negotiations or mediations pursuant to this Section 14.6; expenses in connection
with any subsequent litigation shall be governed by Section 15.11 ("Attorneys'
Fees"). In the event of breach relating to hosting of non-e-commerce PETsMART
Content or PETsMART Pages, if such breach is not cured within 30 days of notice
of breach, the chief executive officers of PETsMART and XXXxXXXX.xxx shall,
within the following 15 days, confer in good faith for the purpose of
satisfactorily resolving the breach. If a satisfactory resolution is not
achieved within said 15 days, the parties agree promptly to submit the dispute
to a non-binding one day mediation session held in San Francisco, California
through Judicial Arbitration & Mediation Services/Endispute, Inc. ("JAMS") under
the then existing JAMS Rules of Practice and Procedure by a mediator mutually
selected by the parties or, if no agreement can be promptly reached on the
selection of a mediator, then by the procedures for selecting a mediator set
forth in such rules. The mediation session shall take place no later than 30
days from the appointment of a mediator. If such mediation is unsuccessful in
resolving the dispute, either party may then take whatever legal actions it
deems appropriate, including, without limitation, seeking judicial relief,
and/or terminating this Agreement (except that XXXxXXXX.xxx's obligation to host
the non-e-commerce PETsMART Content and PETsMART Pages can be terminated only by
PETsMART).
15. General Provisions.
15.1 Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of California as applied to contracts
entered into and to be performed entirely within the State of California without
giving effect to principles of conflict of laws.
15.2 Compliance With Laws. XXXxXXXX.xxx shall ensure that its Website
design and its web hosting services will comply with all applicable
international, national and local laws and regulations.
15.3 Subcontracting. XXXxXXXX.xxx may perform its obligations through the
use of PETsMART.com-selected independent contractors; provided, however, that
XXXxXXXX.xxx shall not be relieved of its obligations under this Agreement by
the use of such contractors.
15.4 Severability; Waiver. If any provision of this Agreement is held to
be invalid or unenforceable for any reason, the remaining provisions will
continue in full force without being impaired or invalidated in any way. The
parties agree to replace any invalid provision with a valid provision which most
closely approximates the intent and economic effect of the invalid provision.
The waiver by either party of a breach of any provision of this Agreement will
not operate or be interpreted as a waiver of any other or subsequent breach.
15.5 Headings. Headings used in this Agreement are for reference purposes
only and in no way define, limit, construe or describe the scope or extent of
such Section or in any way affect this Agreement.
15.6 Assignment and Subcontracting. Except as permitted pursuant to
Section 15.3 ("Subcontracting") and except for sublicensing of trademark rights,
which is governed by the Trademark Agreement, neither party may assign its
rights or delegate its duties without the other party's prior written consent in
such party's sole discretion. Notwithstanding the foregoing, PETsMART may assign
its rights or delegate its duties in connection with XXXxXXXX.xxx's obligation
to host non-e-commerce PETsMART Content and PETsMART Pages without obtaining
XXXxXXXX.xxx's prior written consent. The sale, transfer or encumbrance of 51%
or more of the ownership interest in, or voting stock of, a party or the merger
of a party to this Agreement into or with any other third party or entity, shall
be deemed an assignment for purposes of this Section 15.6. Any assignment,
delegation or subcontract in violation of this Section 15.6 shall be void and of
no effect. Subject to the prohibitions against assignment contained herein, this
Agreement shall inure to the benefit of and shall be binding on the parties
hereto and their respective successors and permitted assigns.
15.7 Independent Contractors. The parties to this Agreement are
independent contractors, and no agency, partnership, joint venture or employee-
employer relationship is intended or created by this Agreement. Neither party
is the agent of the other, and neither party shall have the power to obligate or
bind the other party. Personnel supplied by XXXxXXXX.xxx shall work exclusively
for XXXxXXXX.xxx and shall not, for any purpose, be considered employees or
agents of PETsMART. XXXxXXXX.xxx assumes full responsibility for the acts of
such personnel while performing services hereunder and shall be solely
responsible for their supervision, direction and control, compensation, benefits
and taxes.
15.8 Notice. Any notices given under this Agreement shall be in writing
and shall be delivered to the addresses set forth below the signatures of the
parties or at such other address as the party shall specify in writing. Notices
shall be deemed effectively given (a) upon five (5) days following being sent by
certified or registered mail, postage prepaid, return receipt requested; (b)
upon the next business day following being sent by U.S. Express Mail or by a
major U.S. express document courier; or (c) upon receipt of confirmation
following transmission by a facsimile machine.
15.9 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which shall
be taken together and deemed to be one instrument.
15.10 Injunctive Relief. XXXxXXXX.xxx agrees that XXXxXXXX.xxx's services
with respect to hosting of non-e-commerce PETsMART Content and the PETsMART
Pages are unique and that PETsMART may suffer irreparable harm in the event of
any breach by XXXxXXXX.xxx in connection with such services, and that monetary
damages in such event
would be substantial and inadequate to compensate PETsMART. Consequently,
PETsMART shall be entitled, in addition to such monetary relief as may be
recoverable by law, to such injunctive or other relief as may be necessary to
restrain any threatened, continuing, or further breach by XXXxXXXX.xxx, without
showing or proving actual damage sustained by PETsMART and without posting a
bond.
15.11 Attorneys' Fees. In the event that either party to this
Agreement shall institute any action to enforce any rights hereunder, the
prevailing party in such action shall be entitled, in addition to any other
relief awarded by the court, to recover its reasonable attorneys' fees and
litigation expenses.
15.12 Entire Agreement. This Agreement, including the Exhibit attached
hereto, sets forth the entire understanding and agreement of the parties
regarding the subject matter of this Agreement, and supersedes any and all oral
or written agreements or understandings between the parties as to that subject
matter. It may be changed only by a writing signed by both parties. Neither
party is relying upon any warranties, representations, assurances or inducements
not expressly set forth herein.
In Witness Whereof, each of the parties hereto have executed this Agreement
as of the date first written above.
XXXxXXXX.xxx: PETsMART:
/s/ Xxx XxXxxxxx /s/ Xxxxxx X. Xxxxxxx
___________________________________ ___________________________________
By: Xxx XxXxxxxx By: Xxxxxx X. Xxxxxxx
Title: President and CEO Title: President and CEO
Address: 00 Xxxxx Xxxxx, Xxxxx 000 Address: 00000 Xxxxx 00/xx/ Xxxxxx
Xxxxxxxx, XX 00000 Xxxxxxx, XX 00000
Fax: (000) 000-0000 Fax: (000) 000-0000
List of Exhibits:
A - List of Property
EXHIBIT A
---------
PROPERTY LIST
[*]
[*] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
