Exhibit 10.27
INTEGRATION AND MARKETING AGREEMENT
THIS INTEGRATION AND MARKETING AGREEMENT (the "Agreement") is entered into
by NOOSH, INC., a Delaware corporation with offices at 0000 Xxxxxxxx Xxxxxx,
Xxxxxxxx X, Xxxx Xxxx, Xxxxxxxxxx 00000 ("Noosh") and XXXXXXXXXXXXX.XXX, INC., a
Delaware corporation with offices at 000 Xxxxxxxx Xxxxxx, 0xx xxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000 ("PEX"), effective March 31, 2000 (the "Effective Date").
RECITALS
A. Noosh provides an Internet-based service for buyers and sellers of
print services to communicate and collaborate with each other and manage print
jobs.
B. PEX provides an online marketplace for buyers and sellers of paper
products to transact business with one another.
C. The parties want to cooperate to integrate the PEX paper procurement
process into the Noosh service to enable buyers and seller of print services
using the Noosh service to also coordinate the supply of paper for their print
jobs via the PEX marketplace.
The parties therefore agree as follows:
AGREEMENT
1. DEFINITIONS.
1.1 "Affiliate" of a party means a person or entity that controls, is
controlled by, or is under common control with such party. For these purposes
"control" means ownership of more than fifty percent (50%) of the voting stock
or other voting securities or interests.
1.2 "Change of Control" means any Ownership Change Event or a series of
related Ownership Change Events (collectively, the "Transaction") wherein the
shareholders or other ownership interest holders of a party immediately before
the Transaction do not retain immediately after the Transaction, in
substantially the same proportions as their ownership of shares of a party's
voting stock or other ownership voting interests immediately before the
Transaction, direct or indirect beneficial ownership of more than fifty percent
(50%) of the total combined voting power of the corporation or corporations so
which substantially all of the assets or stock of the party were transferred, as
the case may be.
1.3 "Confidential Information" means any data or information disclosed
hereunder (whether written, oral or graphical) that relates to the disclosing
party's products, technology, research, development, customers or business
activities, passwords, User Data (defined in Section 13, and which is
confidential or proprietary to or a trade secret of the disclosing party,
provided that, if disclosed in a tangible form it is labeled as confidential or
proprietary, or if provided orally, is identified as confidential or proprietary
at the time of disclosure, reduced to writing, and provided to the receiving
party within ten (10) days thereafter. Confidential Information shall not
include any information, data or material which: (a) the disclosing party
* Confidential Treatment Requested: material has been omitted and filed
separately with the Commission.
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expressly agrees in writing is free of any non-disclosure obligations; (b) at
the time of disclosure to the receiving party was known to the receiving party
(as evidenced by documentation in the receiving party's possession) free of any
non-disclosure obligations; (c) is independently developed by the receiving
party (as evidenced by documentation in the receiving party's possession); (d)
is lawfully received by the receiving party, free of any non-disclosure
obligations, from a third party having the right to so furnish such Confidential
Information; or (e) is or becomes generally available to the public without any
breach of this Agreement or unauthorized disclosure of such Confidential
Information by the receiving party; provided that only the specific information
that meets the exclusion(s) specified in clauses (a)-(e) shall be excluded and,
not any other information that happens to appear in proximity to such excluded
portion (for example, a portion of a document may be excluded without affecting
the confidential nature of those portions that do not themselves qualify for
exclusion).
1.4 "Deliverables" means deliverables of either party as specified in the
Specifications and Development Schedule.
1.5 "Development Schedule" means the milestone schedule for the
specification, development and delivery of the tools, software, data and other
Deliverables required to integrate the PEX Service and the Noosh Service as
described in the Specifications. The Development Schedule shall be set forth in
Exhibit A (Development Schedule) in accordance with subsection (a) of Section
2.4.1 ("Specifications Phase") and may be amended from time to time as set forth
below.
1.6 "End User Information" means any information or data PEX obtains or
learns about a End User (however it does so, whether such information or data is
transferred by Noosh, provided by the End User, extracted through traffic
analysis or otherwise).
1.7 "Intellectual Property Rights" means all copyrights, trade secrets,
patents, mask works and other intellectual property rights worldwide, but
excluding trademarks, service marks, trade names and other product, service or
company identifiers.
1.8 "Marks" means the Noosh Marks or the PEX Marks, as applicable.
1.9 "Noosh APIs" means the Noosh application programmable interfaces or
other naming and data protocols, file formats created by or on behalf of Noosh
for interfacing to the Noosh Service in existence as of the Effective Date, or
developed or created by or for Noosh pursuant to this Agreement.
1.10 "Noosh Content" means all content or information, in any medium,
created by or on behalf of Noosh for use in the Noosh Service, including without
limitation any text, music, sound, photographs, video, graphics, data, data
types, stock keeping unit (SKU) designations and Noosh APIs and any marketing
materials provided by Noosh pursuant to this Agreement.
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1.11 "Noosh Marks" means all domain names, trademarks, servicemarks, links
and logos designated by Noosh for use in conjunction with the parties'
performance under this Agreement (initially including "Noosh", xxxxx.xxx and
"Live Jobs.")
1.12 "Noosh Service" means the Internet-based service Noosh offers to
enable buyers and sellers of print services to transact business with each
other, and any successor service, as revised, augmented, superseded, enhanced,
modified or supplemented from time to time.
1.13 "Noosh Site" means the website owned and operated by Noosh accessible
at xxx.xxxxx.xxx (or its successor URLs) for the purpose of making the Noosh
Service commercially available.
1.14 "Ownership Change Event" shall be deemed to have occurred if any of
the following occurs with respect to a party to this Agreement:
(a) the direct or indirect sale or exchange in a single series of
related transactions by the shareholders or other ownership interest
holders of a party to this Agreement of more than fifty percent (50%) of
the voting stock or other voting ownership interests of such party;
(b) a merger or consolidation in which a party to this Agreement is
a party excluding a merger conducted solely for the purpose changing the
state of domicile of a party;
(c) the sale, exchange or transfer of all or substantially all of
the assets of a party to this Agreement; or
(d) a liquidation or dissolution of a party to this Agreement;
provided, however, that any transaction or series of transactions that are
effected solely in connection with a (i) reincorporation, (ii) a reorganization,
recapitalization or financing not in connection with the sale of all or
substantially all of the assets or stock or other ownership interests of a party
to this Agreement or (iii) an underwritten public offering of common stock of a
party to this Agreement, is not an Ownership Change Event.
1.15 "PEX APIs" means the PEX application programmable interfaces or other
naming and data protocols, file formats created by or on behalf of PEX for
interfacing to the PEX Service in existence as of the Effective Date, or
developed or created by or for PEX pursuant to this Agreement.
1.16 "PEX Content" means all content or information, in any medium,
created by or on behalf of PEX for use in the PEX Service, including without
limitation any text, music, sound, photographs, video, graphics, data, data
types, stock keeping unit (SKU) designations and PEX APIs and any marketing
materials provided by PEX pursuant to this Agreement.
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1.17 "PEX Marks" means all domain names, trademarks, links and logos
designated by PEX for use in conjunction with the parties' performance under
this Agreement.
1.18 "PEX Service" means the PEX Trading Floor (which enables users to
view listings by product category and grade, to search for products using
specific criteria, and to place requests for product and to post the
availability of products for sale and bid on open requests for product) and
associated features, as more fully described in the Specifications.
1.19 "PEX Site" means the website owned and operated by PEX accessible at
xxx.xxxxxxxxxxxxx.xxx (or its successor URLs) for the purpose of making the PEX
Service commercially available.
1.20 "Specifications" means the detailed functional specifications for
integrating the Noosh Service and the PEX Service, which shall be set forth in
Exhibit B (Specifications) in accordance with subsection (b) of Section 2.4.1
("Specifications Phase") and may be amended from time to time as set forth
below.
2. INTEGRATION OF SERVICES.
2.1 Overview. The goal of the parties is to implement a link on the Noosh
Site for end users of the Noosh Service that have been given the ability to
procure paper or print providers on the Noosh Service (collectively referred to
as "End Users") to procure and manage paper requisitions using the PEX Service
(provided that End Users with a pre-existing purchasing relationship for paper
with PEX may purchase paper directly from PEX without using the Noosh Service).
2.1.1 Integration of Services. Noosh will use reasonable commercial
efforts to develop and integrate the Noosh Service with the PEX Service and PEX
will use reasonable commercial efforts to develop and integrate the PEX Service
with the Noosh Service to enable the following transactions on the Noosh
Service:
(a) When End Users specify the paper they want used for their
print jobs, the End Users will have the option to view available paper. When
this option is selected, the End Users will be linked to a list of matching
products (and/or close substitutes) available on the PEX site. This list will
include the price, availability, and other information that is normally provided
on the PEX site. In addition to viewing paper availability from PEX, the user
may have the ability to view paper availability from other sources but only
after having the option to view availability on the PEX site. Once matching
products on PEX are displayed, the End Users will then also have the option of
bidding on or purchasing this displayed product via PEX.
2.2 (b) When End Users specify the paper they want used for their print
jobs, the End Users will also have the option of submitting an RFE for their
desired products on the PEX service. If End Users are able to submit an RFE to
paper procurement providers other than PEX, then the PEX Service will be listed
first and in no case an inferior format to other paper providers on the Noosh
site. If PEX receives an RFE through the Noosh Service, PEX shall respond to
such
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RFE within the required time as specified in such RFE provided that if PEX fails
to respond within such time, PEX will be unable to participate in the RFE. If
the RFE becomes an Accepted Order (as defined in Section 7) on the Noosh
Service, PEX shall perform its obligations as set forth in such Accepted Order.
Similarly, if Noosh print providers receive an RFE for a print job via the Noosh
Service that does not already address paper procurement, the print provider will
be offered the option to submit an RFE for appropriate paper on the PEX Service.
Similarly, PEX will use reasonable commercial efforts to develop the ability for
a user of the PEX Service to obtain information available from the Noosh Service
of a similar importance and in a similar priority to other transactions
conducted by such user on the PEX service so that the user of the PEX Service
interacts with the Noosh Service in a way that is similar to the way an End User
interfaces with the PEX Service and information contained therein.
2.3 Development Efforts. The parties shall use reasonable commercial
efforts to develop their respective Deliverables as defined in the
Specifications in accordance with the Development Schedule.
2.4 Phases of Development. Development of the Deliverables shall take
place in two phases, which may overlap at the discretion of the parties.
2.4.1 Specifications Phase. During Phase 1 (the "Specifications
Phase"):
(a) The parties will generate a mutually-agreeable Development
Schedule within forty-five (45) days after the Effective Date, which shall be
attached to this Agreement as Exhibit A (Development Schedule). The Development
Schedule is meant to serve as a guideline for the integration of Noosh Service
and PEX Services.
(b) Noosh will then generate, and PEX shall approve, the
Specifications in accordance with the milestones set forth in the Development
Schedule, and the Specifications shall be attached to this Agreement as Exhibit
B (Specifications). Noosh will define the Noosh APIs as part of the
Specification. (c) Any changes in the Development Schedule and Specifications
thereafter must be requested in writing by either party. If the requested change
is acceptable to both parties, Noosh will determine whether implementing the
suggested change would result in a delay or increase Noosh's costs to integrate
the PEX Service and will advise PEX on the effect of the suggested change. If
both parties accept the change and its effects on schedule and costs, the
applicable Exhibits will be modified to reflect the change and its effects.
(d) If the parties are unable to agree on the Development
Schedule and Specifications by Xxxxxx 0, 0000, Xxxxx or PEX may terminate the
Agreement with no liability for either party.
2.4.2 Development Phase. Phase 2 (the "Development Phase") will
consist of:
(a) The parties' development and delivery of their respective
Deliverables in accordance with the Development Schedule and Noosh's reasonable
commercial
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efforts to integrate the Deliverables into a paper procurement process on the
Noosh Site using the PEX Service.
(b) Noosh's acceptance testing of the Deliverables and the
overall paper procurement process using the PEX Service from the Noosh Site in
accordance with the acceptance test criteria in the Specifications. Unless the
parties otherwise agree with respect to a specific Deliverable, Noosh shall have
thirty (30) days following delivery of the final Deliverable to determine
whether the Deliverables as whole, and the overall paper procurement process
using the PEX Service, conform to the acceptance criteria (the "Initial
Acceptance Period"). Noosh agrees to inform PEX in writing during the Initial
Acceptance Period of any non-conformance. The notice will contain a detailed
description of the nature of the non-conformance. If no notice of
non-conformance is received by PEX before the end of the Initial Acceptance
Period, the Deliverables and overall paper procurement process shall be deemed
to be accepted. If Noosh rejects a Deliverable or the procurement process as a
whole as non-conforming, PEX shall have thirty (30) days following receipt of
Noosh's notice to correct the nom-conformance and deliver a modified Deliverable
for further testing. Noosh shall then have ten (10) days following delivery of
the modified Deliverable to determine whether it conforms to the applicable
acceptance criteria (the "Extended Acceptance Period"). If no notice of
non-conformance is received by PEX before the end of the Extended Acceptance
Period, the modified Deliverable shall be deemed to be accepted by Noosh. If
Noosh rejects the modified Deliverable, Noosh, in its option, shall have the
following sole and exclusive remedies: (i) to require the parties to continue
resubmitting modified Deliverables until they meet the acceptance criteria; or
(ii) to waive the unsatisfied acceptance criteria; provided that if Noosh does
not accept the resubmitted Deliverables within six (6) months from initial
submission, either party may terminate this Agreement with no liability to the
other party.
2.5 Delays. The parties agree that any delay by one party in performing
the tasks which are identified as its responsibility in the Development Schedule
and which are a prerequisite for the performance of the other party shall extend
the non-delaying party's milestone dates for its performance on a day-for-day
basis (or longer, if the nature of the delay precludes the timely performance of
long lead time items or other obligations whose deferral causes more than a
day-for-day schedule slip).
2.6 Collaboration on Initial Users. PEX and Noosh will cooperate to select
at least two customers -- one print buyer and one print supplier -- to use the
integration of the Noosh Service and the PEX Service and to provide feedback to
Noosh regarding such use ("Feedback"). Both parties will support the sales
effort for these customers with coordinated direct sales and training
interaction. Both PEX and Noosh agree that either party may use the ideas
generated from the Feedback in either party's future product development
(including but not limited to improvement of the PEX Service or Noosh Service.)
All such customers shall execute both PEX's and Noosh's standard user agreement
prior to use of the Noosh Service.
2.7 Noosh API. PEX will use reasonable commercial efforts to assist Noosh
in developing its respective product descriptions and data types and protocols
for paper products according to the Noosh API for the elements of the business
processes required to integrate the
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Noosh Service and the PEX Service. In addition, as reasonably requested by
Noosh, PEX will use reasonable commercial efforts to cooperate with Noosh to
integrate with Noosh's other paper suppliers according to the Noosh API.
2.8 Data Normalization. The parties shall use reasonable commercial
efforts to work together in good faith to achieve acceptable levels of
authentication and security in such data transfers and to fairly apportion costs
of doing so. To the extent that a party provides the other party with direct
server access, the accessing party shall not disclose the applicable password to
third parties. The parties will use reasonable commercial efforts to cooperate
to further integrate the Noosh Service with the PEX Service as mutually agreed
(such integration may contain for example pre-populated registration for End
Users or other data transfer mechanisms). Noosh acknowledges that an End User
will be required to register and become a member of PEX to obtain the PEX
Service and agrees that it will facilitate the process for its members to
become PEX members.
2.9 Disaster Recovery Plans. Each party will use reasonable commercial
efforts to implement disaster recovery and backup plans intended to minimize the
occurrence and impact of any disruption or downtime of each party's applications
on the other party's business.
2.10 Look and Feel. Noosh shall determine the appearance and look and feel
of the Noosh Service and may change the Noosh Service from time to time.
2.11 Accounts and Passwords.
2.11.1 PEX will receive an account id, username and password to gain
access to and use the Noosh Service. PEX is responsible for maintaining the
confidentiality of its username and password, and is fully responsible for all
activities that occur under its username or account. PEX agrees (a) not to allow
a third party to use its account, username or password at any time and (b) to
notify immediately Noosh customer support of any actual or suspected
unauthorized use of its account, username or password, or any other breach or
suspected breach of security at 1-888-AT-NOOSH (0-000-000-0000) or at
xxxxxxx@xxxxx.xxx. Noosh cannot and will not be liable for any loss or damage
arising from unauthorized use of PEX's account, username or password.
2.11.2 Noosh will receive an account id, username and password to
gain access to and use the PEX Service. Noosh is responsible for maintaining the
confidentiality of its username and password, and is fully responsible for all
activities that occur under its username or account. Noosh agrees (a) not to
allow a third party to use its account, username or password at any time and (b)
to notify immediately PEX customer support of any actual or suspected
unauthorized use of its account, username or password, or any other breach or
suspected breach of security. PEX cannot and will not be liable for any loss or
damage arising from unauthorized use of Noosh's account, username or password.
3. PROJECT COORDINATORS; CUSTOMER SUPPORT; TECHNICAL SUPPORT.
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3.1 Relationship Managers. PEX assigns Xxx Xxxxxxx, and Noosh assigns Xxx
Xxxxxxx, and/or such other personnel as are later designated by the parties, as
their high-level relationship managers to oversee the parties' overall
relationship and the setting and implementation of parties' long-term
collaborative goals.
3.2 Engineering Managers. PEX assigns Xxx Xxxxxxx, and Noosh assigns Xxx
Xxxxx, and/or such other personnel as are later designated by the parties, as
their respective engineering coordinators to oversee the paper procurement
process development and implementation efforts. The responsibilities of the
engineering managers shall be to communicate on a regular basis by telephone,
facsimile, email and in person to complete the Development Schedule and
Specifications, review progress, track schedules, resolve problems and arrange
for the exchange of materials or information, or access to personnel, necessary
for the performance of this Agreement. The engineering managers shall have the
authority to make binding decisions concerning modifications of the Development
Schedule and Specifications.
3.3 CUSTOMER SUPPORT; TECHNICAL SUPPORT. Noosh shall use reasonable
commercial efforts to provide first-level and second level customer support to
End Users of the Noosh Service with the use and functionality of the integration
of the Noosh Service and PEX Service portions of the Noosh Service. Noosh shall
have the right to designate up to three (3) contact persons, which may include
substitutes, as necessary to address such customer support issues ("Contact
Persons"). Such Contact Persons may request assistance and communicate
descriptions of problems encountered with the integration of the Noosh Service
and the PEX Service and PEX will provide telephone support to such Contact
Persons during regular business hours, provided that if the problems cause a
material disruption in the operation of the PEX Services, PEX will provide
support Monday to Friday from 9 AM-8 PM E.S.T. PEX will use reasonable
commercial efforts to provide the Contact Persons with answers and solutions to
problems to End Users of the Noosh Service related to the PEX Service. If
necessary, PEX will provide the Contact Persons with a reasonable amount of
training and training materials to provide such Contact Persons with sufficient
information to train other Noosh personnel as necessary, at no additional cost
to Noosh.
4. MARKETING AND PROMOTION.
4.1 Initial Press Release. Noosh and PEX will issue a press release
announcing their integration and co-marketing plans on Tuesday April 4, 2000.
The form and substance of the press release shall be as mutually agreed. Noosh
and PEX will each be entitled to refer to their alliance in the "About" sections
of their press releases, on their respective web sites and otherwise as required
by law. However, any additional press releases focusing on the alliance would
require the mutual consent of the parties. The parties shall cooperate to draft
and issue a press release announcing the signing of this Agreement and each
party may include the information included in such press release in subsequent
advertisements, press releases or other publications without the other party's
prior written consent, provided that such party includes proper attribution of
the other party's name.
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4.2 Noosh Online Promotion. Noosh will promote PEX and the PEX Service on
the Noosh Site with a combination of mutually-agreeable links and promotional
information in mutually-agreeable locations on the Noosh Site, with the overall
objective of giving PEX's logo and other branding elements equal prominence with
those of Noosh's other partners. Specifically, during the term of this
Agreement, and pursuant to the Development Schedule, Noosh will include a PEX
Xxxx in the partner section of the Noosh Site, include information about the PEX
Service as mutually agreed by the parties, and identify PEX first in a list of
paper exchanges in a size and location at least as prominent as a similar third
party offering similar services. Pursuant to the Development Schedule, during
the term (as defined in Xxxxxxx 00), Xxxxx shall use reasonable commercial
efforts to include PEX at the top of the list of paper suppliers available on
the Noosh Service as originally presented to End Users that request such list on
the Noosh Service; provided that PEX acknowledges that End Users may modify or
delete such list as part of their normal use of the Noosh Service.
4.3 PEX Online Promotion. PEX will promote Noosh and the Noosh Service on
the PEX Site with a combination of mutually-agreeable links and promotional
information in mutually-agreeable locations on the PEX Site, with the overall
objective of giving Noosh's logo and other branding elements equal prominence
with those of PEX's other partners. Specifically, during the term of this
Agreement and pursuant to the Development Schedule, PEX will include a Xxxxx
Xxxx on the homepage of the PEX Site that serves as an entry point to the Noosh
Service, include information about the Noosh Service as mutually agreed by the
parties and identifies Noosh first in a list of print procurement partners with
a Xxxxx Xxxx at least as prominent as a similar third party offering similar
services. When PEX develops search capabilities on its site, PEX will use
reasonable commercial efforts to include Noosh on the top of any search results
where an end user of the PEX Service searches for the keywords "printing",
"print management service" or such other words as Noosh may reasonably request.
4.4 Collaboration and Joint Marketing Efforts. The parties will
collaborate to identify the most efficient venues for their promotion of the
integration of the Noosh Service and the PEX Service and enhance the impact of
their promotions in appropriate media. Noosh and PEX will jointly create an
education and training curriculum to teach Noosh clients how to procure paper
using the PEX Service and to promote its benefits, and the parties will
cooperate to develop, fund and execute other joint marketing programs on a
mutually-agreeable basis, which could include joint customer case studies,
direct mail, seminar series, exhibitions, web based marketing materials and
other advertising.
4.5 Joint Sales Meetings. In its reasonable discretion, each party will
periodically hold joint sales meetings with the sales personnel of the other
party to educate the sales force of both parties on the benefits, features and
use of paper procurement on the Noosh web site.
4.6 Success Metrics. The parties will cooperate to develop
mutually-agreeable metrics for analyzing the success of their marketing and
promotion efforts and the overall performance of the integrated Noosh Service
and PEX Service. The first set of metrics will be developed by the end of the
third calendar quarter of 2000, and the parties will thereafter develop
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success goals and implementation plans for each successive three (3) and six (6)
month period for the remainder of the term of the Agreement.
5. OWNERSHIP. Noosh and/or its suppliers shall own all right, title and interest
in Noosh Confidential Information, the Specifications and all Noosh Content,
including all Intellectual Property Rights therein. PEX and its suppliers shall
own all PEX Confidential Information and the PEX Content, including all
Intellectual Property Rights therein. There are no implied licenses under this
Agreement, and any rights not expressly granted to a licensee hereunder are
reserved by the licensor or its suppliers. Neither party shall exceed the scope
of the licenses granted hereunder.
6. LICENSE GRANTS.
6.1 Noosh Service. Noosh hereby grants to PEX the limited,
non-transferable, non-exclusive, nonsublicenseable right to use the Noosh
Service for the sole purpose of processing and monitoring print jobs involving
PEX's production and sale of paper and the PEX Service. PEX may print and down
load portions of the materials contained on the Noosh Service solely for PEX's
internal use provided PEX maintain the copyright notice and any other notices
that appear on any such copies. Any other copying, redistribution, publication,
or transmission of any portions of the materials on the Noosh Service, or any
materials provided by Noosh to PEX for training purposes related to the Noosh
Service including user manuals, is strictly prohibited without the express
written permission of Noosh.
6.2 PEX Information. As part of using the Noosh Service, PEX will submit
information as part of responding to an RFE, and other information to
communicate with End Users through the Noosh Service ("PEX Information"), PEX
hereby grants to Noosh a non-exclusive, world-wide, perpetual, irrevocable,
royalty-free, license to use, display, perform and reproduce the PEX Information
to operate and enhance the Noosh Service.
6.3 PEX Service. PEX hereby grants to Noosh the limited, non-transferable,
non-exclusive, nonsublicenseable right to use the PEX Service to perform its
obligations under this Agreement.
6.4 Content Licenses. Noosh hereby grants to PEX a non-exclusive license
to internal1y use, reproduce, publicly perform, publicly display and digitally
perform the Noosh Content solely for the purposes of integrating the PEX Service
with the Noosh Service as contemplated by this Agreement and promoting the
integration of the Noosh Service with the PEX Service as authorized by this
Agreement. PEX hereby grants to Noosh a non-exclusive license to use, reproduce,
create derivative works of (solely to the extent necessary to post on the Noosh
Site), publicly perform, publicly display and digitally perform the PEX Content
(subject to Section 6.5) on or in conjunction with Noosh's hosting, deployment
and promotion of the integrated Noosh Service and PEX Service as contemplated or
authorized by this Agreement.
6.5 PEX APIs. PEX hereby grants to Noosh a non-exclusive, irrevocable,
perpetual, royalty-free, world-wide, license to use, reproduce, create
derivative works of, publicly perform,
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publicly display, digitally perform, and distribute the PEX APIs through Noosh's
ordinary channels of distribution to third parties for the purpose of
integrating such third parties with the Noosh Service and to sublicense such
aforegoing rights as contemplated by this Agreement.
6.6 Trademark License. PEX hereby grants to Noosh a non-exclusive license
to use the PEX Marks (a) in links to and advertisements and promotions for the
PEX Site and PEX Service (b) in conjunction with hosting and operating the Noosh
Site and Noosh Service as integrated with the PEX Service and (c) on Noosh
prospectuses, financial reports and similar materials indicating that PEX is a
Noosh partner. Noosh hereby grants to PEX a non-exclusive license to use the
Noosh Marks (a) in links to and advertisements and promotions for the Noosh Site
and Noosh Service (b) in conjunction with hosting and operating the PEX Site and
PEX Service as integrated with the Noosh Service and (c) on PEX prospectuses,
financial reports and similar materials indicating that Noosh is a PEX partner.
6.7 Trademark Restrictions. The Xxxx owner may terminate the foregoing
license if, in its reasonable discretion, the licensee's use of the Marks
tarnishes, blurs or dilutes the quality associated with the Marks or the
associated goodwill and such problem is not cured within ten (10) days of notice
of breach; alternatively, instead of terminating the license in total, the owner
may specify that certain pages of the licensee's website may not contain the
Marks. Title to and ownership of the owner's Marks shall remain with the owner.
The licensee shall use the Marks exactly in the form provided and in conformance
with any trademark usage policies. The licensee shall not take any action
inconsistent with the owner's ownership of the Marks, and any benefits accruing
from use of such Marks shall automatically vest in the owner. The licensee shall
not form any combination marks with the other party's Marks.
6.8 Limits on Sublicensing. All license rights (under any applicable
intellectual property right) granted herein are not sublicenseable, transferable
or assignable (subject to Section 15.3 ("Assignment"), except that Noosh may use
a third party web hosting service for the Noosh Site and shall have the right to
sublicense the PEX Content (subject to Section 6.5) and PEX Marks solely for
such purpose and except that PEX may use a third party web hosting service for
the PEX Site and shall have the right to sublicense the Noosh Content and Noosh
Marks solely for such purpose..
6.9 Content Standards. PEX shall not provide any PEX Content, and Noosh
shall not provide any Noosh Content, that: (a) infringes any third party's
copyright, patent, trademark, trade secret or other proprietary rights or rights
of publicity or privacy; (b) is defamatory, trade libelous, unlawfully
threatening or unlawfully harassing; or (c) is materially false, misleading or
inaccurate.
6.10 Proprietary Notices. Neither party will obfuscate, remove or alter
any of the trademarks, trade names, logos, patent or copy-right notices,
confidential or proprietary legends or other notices or markings on or in the
Noosh Content or the PEX Content, as applicable, and all such markings shall be
included in all copies made by either party of such materials.
11
6.11 End User Information. Subject to the terms and conditions of this
Agreement, Noosh hereby grants PEX a non-exclusive, non-sublicenseable,
royalty-free, fully-paid up license to (a) use the End User Information that PEX
obtains pursuant to this agreement as required to provide End Users the PEX
Service and (b) to disclose the End User Information as required by law or the
operation of the PEX Service. In no event shall PEX disclose the User
Information in any way that discloses, identifies or references in any way or
manner (i) a specific End User; or (ii) End User Information about a specific
End User, unless PEX has disclosed to such End User that PEX is collecting or
intends to collect such information and that End User has expressly provided
consent to the collection and disclosure of its End User Information by PEX. PEX
agrees that all End User Information shall be deemed Confidential Information of
Noosh; provided however that user information concerning the preexisting
end-users of PEX should not be pursuant to 6.11.
6.12 Restrictions on Communications. PEX acknowledges that Noosh
membership and End User information is proprietary and confidential. PEX will
not disclose Noosh membership and End User information to any third party. No
communications from PEX to any End User that accesses the PEX Service through
the Noosh Service shall contain: (a) any hypertext links except to the PEX
Service, or the Noosh Service, (b) any promotions for websites or services other
than the Noosh Service, or (c) any advertising or third party branding.
Notwithstanding the foregoing, PEX will not target an End User on behalf of a
Noosh Competitor (as defined below) on the basis of their status as an End User.
7. TRANSACTION FEES.
7.1 Published Commission Rates. From time to time, PEX will inform Noosh
of the published commission rate charged by PEX to sellers of paper ("Published
Commission Rate"). As of the Effective Date, the Published Commission Rate
equals ****%. PEX agrees that the Published Commission Rate will not exceed
****% and will not fall below ****% during the term of this Agreement.
7.2 Monthly Transaction Fees. During, the term of this Agreement, PEX will
pay to Noosh a monthly transaction fee equal to **** percent (****%) of the
Published Commission Rate ("Effective Rate") based on the applicable dollar
value ("Job Value") and job due date as defined by the End User ("Job Due Date")
for the paper portion of the print job of PEX for which an Accepted Order
(defined below) is reflected on the Noosh Service. For the purpose of this
Agreement, "Accepted Order" means acceptance by PEX of an order submitted by an
End User through the Noosh Service unless the order has been successfully
cancelled or modified by PEX or the End User. For the purposes of calculating
the Job Value, such Job Value will exclude charges in respect of (i) outbound
shipping, packaging, credit clearing, insurance and delivery, separately billed
to the End User or prepaid; and (ii) taxes and duties, and applicable
governmental charges (not including PEX's net income tax) and the Job Value and
Job Due Date relating to an Accepted Order shall for a particular print job
shall be as initially reflected in the Accepted Order, subject to any changes to
such Job Value or Job Due Date as are agreed by PEX and the End User and entered
on the Noosh Service and of which PEX notifies Noosh in writing on or before the
previously agreed upon Job Due Date. PEX agrees and acknowledges that an
* Confidential Treatment Requested: Material has been omitted and filed
separately with the Commission.
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Accepted Order will form a binding contract between PEX and the End User and/or
PEX and the print provider (the "Terms"), and that any Accepted Order will
create a monthly transaction fee obligation from PEX to Noosh.
7.3 Payment Terms. In the event that use of the Noosh Service is subject
to a fee pursuant to Section 7.2, Noosh will invoice PEX in the month following
the Job Due Date as recorded in the Noosh Service with respect to all Accepted
Orders during such month and will cooperate with PEX to submit such information
in one monthly invoice. For the purposes of any such billing, the Job Value and
Job Due Date relating to an Accepted Order for a particular print job shall be
as initially reflected in the Accepted Order, subject to any changes to such Job
Value and Job Due Date as agreed upon by PEX and the end user Buyer on the Noosh
Service and of which PEX notifies Noosh in writing on or before the previously
agreed upon Job Due Date. All invoices will be payable net thirty (30) days from
the date of the invoice submitted by Noosh in U.S. dollars.
7.4 Records and Audit Rights. Each party shall retain complete, clear and
accurate records regarding calculation of product order volumes and transaction
fees owed by PEX under this Agreement during the term of this Agreement and for
one (1) year thereafter. Each party shall have the right to have an inspection
and audit of all of the relevant accounting and sales books and records of the
other party conducted by an independent audit professional selected and paid by
the auditing party no more than once every twelve (12) months during regular
business hours at the offices of the party being audited and in such a manner
that does not interfere with the normal business activities of the party being
audited. If any audit discloses underpayments or overpayments of ten percent
(10%) or more of the amount of transaction fees actually due, the party which
owes the other party a refund or an additional payment, as the case may be,
shall bear all of the costs of the audit. The party's audit rights shall not
terminate or expire until one (1) year after termination or expiration of this
Agreement.
7.5 Taxes. PEX agrees to pay, and to indemnify and hold Noosh harmless
from, any sales, use, excise, import or export, value-added or similar tax or
duty not based on Noosh's net income, including any penalties and interest, as
well as any costs associated with the collection or withholding thereof, and all
government permit fees, license fees and customs and similar fees levied on any
payments by PEX to Noosh under this Agreement. All payments due from PEX under
this Agreement shall be made without any deduction or withholding, unless such
deduction or withholding is required by any applicable law of any relevant
governmental revenue authority then in effect.
7.6 Late Payments. Any invoiced amount or other payment due under this
Agreement which is not paid when due shall bear a late fee at the rate of
eighteen percent (18%) per annum or the maximum rate permitted by local law,
whichever is less.
8. EXCLUSIVE DEALING. PEX agrees that for at least 70 days after the Effective
Date it will not enter into or announce any agreement or relationship (i)
between PEX, XPEDX or an XPEDX Affiliate and a Noosh Competitor or an agreement
whereby such Noosh Competitor may offer paper procurement through both PEX and
XPEDX or such XPEDX Affiliate; or (ii)
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with a Noosh Competitor, except for oZeCorp, and Australian-based company. For
the purposes of this Agreement, a "Noosh Competitor" is defined as any online
print services procurement company. Noosh agrees that for at least 90 days after
the Effective Date Noosh will not enter into or announce a strategic partnership
(i) between Noosh, a "PEX Competitor" and XPEDX or such XPEDX Affiliate whereby
such PEX Competitor may offer its print procurement services to any such
competitor; or (ii) with a PEX Competitor. "PEX Competitor" refers to any
Internet marketplace with its primary business being an exchange with static
pricing including catalog pricing and/or dynamic pricing by auction or reverse
auction for the sale, purchase and/or exchange of pulp, paper, and paper
packaging.
9. REPRESENTATIONS AND WARRANTIES.
9.1 Noosh Representations. Noosh represents and warrants that Noosh has
the power and authority to enter into and perform all of its obligations under
this Agreement.
9.2 PEX Representations. PEX represents and warrants that PEX has the
power and authority to enter into and perform all of its obligations under this
Agreement.
10. DISCLAIMER OF OTHER WARRANTIES. EACH PARTY PROVIDES ALL MATERIALS,
DELIVERABLES AND SERVICES TO THE OTHER PARTY "AS IS." EXCEPT AS STATED IN
SECTION 9 ("REPRESENTATIONS AND WARRANTIES"), EACH PARTY DISCLAIMS ALL
WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT
LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE. NOOSH DOES NOT REPRESENT OR WARRANT THAT
THE NOOSH SITE OR THE NOOSH SERVICE WILL OPERATE SECURELY OR WITHOUT
INTERRUPTION.
11. INDEMNITY. Each party (the "Indemnifying Party") shall indemnify the other
party (the "Indemnified Party") against any and all claims, losses, costs and
expenses, including reasonable attorneys' fees asserted by any third party in
any form (collectively, "Claims") so that as regards to Claims arising from
Noosh Content or the Noosh Marks (Noosh is the Indemnifying Party) and as
regards the PEX Content or PEX Marks or the Terms (PEX is the Indemnifying
Party). The foregoing obligations are conditioned on the Indemnified Party: (i)
giving the Indemnifying Party notice of the relevant claim, (ii) cooperating
with the Indemnifying Party, at the indemnifying Party's expense, in the defense
of such claim, and (iii) giving the Indemnifying Party the right to control the
investigation, defense and settlement of any such claim, except that the
indemnifying Party shall not enter into any settlement that affects the
Indemnified Party's rights or interest without the Indemnified Party's prior
written approval. The Indemnified Party shall have the right to participate in
the defense at its expense. In the event or in the reasonable belief of the
Indemnifying Party (Noosh in the case of the Noosh Content or Noosh Marks and
PEX in the case of the PEX Content, PEX Marks or Terms) that a Claim may arise,
the Indemnifying Party, may at its sole option and expense: (a) procure the
right for the Indemnified Party to continue to use the infringing materials; (b)
modify such materials so that they become non-infringing; or (c) if after
reasonable commercial efforts pursuant to subsections (a) and (b),
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terminate this Agreement upon written notice to the Indemnified Party. This is
the sole and exclusive remedy for the Indemnified Party arising from any claims
of infringement.
12. LIMITATION OF LIABILITY. EXCEPT FOR A BREACH OF SECTION 13.1 AND THIRD PARTY
CLAIMS ARISING UNDER SECTION 11, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT,
EXEMPLARY, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES OF ANY KIND (INCLUDING
WITHOUT LIMITATION LOST PROFITS), EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES. EXCEPT FOR CLAIMS ARISING UNDER SECTION 13.1, NEITHER PARTY'S
AGGREGATE LIABILITY IN CONNECTION WITH THIS AGREEMENT, (WHETHER IN CONTRACT,
TORT OR OTHERWISE), SHALL EXCEED THE AGGREGATE AMOUNTS PAID BY PEX TO NOOSH
UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM. THIS
LIMITATION IS CUMULATIVE, WITH ALL PAYMENTS FOR CLAIMS OR DAMAGES BEING
AGGREGATED TO DETERMINE SATISFACTION OF THE LIMIT. THE EXISTENCE OF ONE OR MORE
CLAIMS SHALL NOT EXPAND THE LIMIT. THE LIMITATIONS OF LIABILITY CONTAINED IN
THIS AGREEMENT ARE A FUNDAMENTAL PART OF THE BASIS OF EACH PARTY'S BARGAIN
HEREUNDER, AND NEITHER PARTY WOULD ENTER INTO THIS AGREEMENT ABSENT SUCH
LIMITATIONS.
13. CONFIDENTIALITY.
13.1 Non-disclosure and Non-use. Each party receiving Confidential
Information shall treat such information as strictly confidential, and shall use
the same care to prevent disclosure of such information as such party uses with
respect to its own confidential and proprietary information, which shall not be
less than the care a reasonable person would use under similar circumstances. In
any event, each party receiving Confidential Information shall (a) disclose such
Confidential Information to (i) only those authorized employees of such party
whose duties justify their need to know such information and who have been
clearly informed of their obligation to maintain the confidential and/or
proprietary status of such Confidential Information; or (ii) only those third
parties required for the performance of the receiving party's obligations under
this Agreement pursuant to a written confidentiality agreement as least as
extensive as the confidentiality provisions of this Agreement; and (b) use such
Confidential Information only for the purposes set forth in this Agreement.
13.2 Certain Exceptions. The parties may disclose any Confidential
Information which must be disclosed pursuant to applicable federal, state or
local law, regulation, court order, or other legal process; provided that upon
receipt of any judicial or administrative order or request, the recipient of
same shall promptly notify the other party and cooperate with the other party in
its attempts to have such order or request withdrawn or narrowed and shall not
make any disclosure until a final and non-appealable order is issued.
13.3 PEX User Data. Notwithstanding the foregoing, Noosh may use and
disclose any information (both individualized and aggregated) (x) about usage
activity of PEX as a user of the Noosh Service, (y) the contents of
specifications in an order as entered on the Noosh Service or
15
as included in a response to an RFE, or (z) any other information entered by PEX
that identifies PEX ("PEX User Data"), for the purpose of operating and
enhancing the Noosh Service. Noosh shall not however disclose any PEX User Data
to any third party for any other reason that permits the PEX User Data to be
associated with PEX or permits the targeting of PEX on their basis of its status
as a user of the Noosh Service, without PEX's express written consent which may
occur through the Noosh Service. Noosh may however disclose PEX User Data if it
is aggregated (in a non-associated way without attribution of any kind to PEX)
with data from multiple suppliers or users.
13.4 Advertising and Press Releases. Except as expressly provided in
Section 4.1 ("Initial Press Release"), neither party shall advertise, issue any
press release or otherwise publish the fact that the parties have entered into
this Agreement without the prior written consent of the other party, except as
may be required by law.
13.5 Terms of This Agreement. Notwithstanding anything to the contrary in
this Agreement, neither party shall disclose the terms of this Agreement to any
third party without the express prior written consent of the other party;
provided however that either party may disclose the terms of this Agreement to
its attorneys, accountants and advisors or as otherwise may be required by law.
14. TERM AND TERMINATION.
14.1 Term. Unless terminated earlier pursuant to the termination
provisions in this Section 15 ("Term and Termination") or automatically extended
as set forth below, this Agreement shall remain in effect for eighteen (18)
months from the Effective Date, and shall automatically renew for periods of one
(1) year thereafter unless voluntarily terminated by a party at the end of the
initial term or any renewal term by the giving of ninety (90) days written
notice before the expiration of the initial or any renewal term.
14.2 Termination by Noosh During Development. Noosh may terminate the
Agreement pursuant to subsection (d) of Section 2.4.1 ("Specifications Phase")
or subsection (b) of Section 2.4.2 ("Development Phase").
14.3 Termination for Breach. Either party may terminate this Agreement for
a material breach by the other party that is not cured with thirty (30) days
after receipt of written notice specifying such breach.
14.4 Termination for Change of Control. PEX may terminate this Agreement
immediately, effective upon written notice to Noosh, upon the announcement of
any proposed Change of Control of Noosh to a PEX Competitor (as defined in
Section 8). Noosh may terminate this Agreement immediately, effective upon
written notice to PEX, upon the announcement of any proposed Change of Control
of PEX to a Noosh Competitor (as defined in Section 8).
14.5 Effect of Termination or Expiration. Upon expiration or termination
of this Agreement for any reason: (a) all license rights granted herein shall
terminate except to the extent
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stated in this Section, (b) each party shall immediately pay to the other all
amounts owed as of the date of such termination, and (c) the parties shall wind
down the integration of the Noosh Service and the PEX Service in a professional
manner (with any relevant licenses, as mutually agreed by the parties, remaining
in effect during such wind-down period). Noosh shall return or destroy all other
copies of the PEX Content (except the PEX APIs) and PEX Confidential Information
in its possession or control, except for any portions which may be contained on
backup and archival copies of Noosh data made in the ordinary course of Noosh's
business, PEX shall return or destroy all copies of Noosh Content and Noosh
Confidential Information in its possession or control, except for any portions
which may be contained on backup and archival copies of PEX data made in the
ordinary course of PEX's business.
14.6 Survival. Section 1 ("Definitions"), Section 5 ("Ownership"), Section
7 ("Transaction Fees"); Section 10 ("Disclaimer of Other Warranties"); Section
11 ("Indemnity"); Section 12 ("Limitation of Liability"), Section 13
("Confidentiality"), Section 14.5 ("Effect of Termination or Expiration") and
Section 15 ("General") shall survive the termination or expiration of this
Agreement.
15. GENERAL.
15.1 Relationship. The relationship between the parties under this
Agreement is that of independent contractors, and nothing contained in this
Agreement shall be construed to constitute either party as an agent, partner, or
joint venturer of the other.
15.2 Notices. All notices, demands or consents required or permitted
hereunder shall be delivered in writing to the respective parties at the
addresses set forth above, and, in the case of Noosh to the attention of the
General Counsel, or at such other address as shall have been given to the other
party in writing for the purposes of this clause. Such notices shall be deemed
effective upon the earliest to occur of: (i) actual delivery; or (ii) five (5)
calendar days after mailing, addressed and postage prepaid, return receipt
requested; or (iii) one (1) day after transmission by telex or facsimile
transfer.
15.3 Assignment Neither this Agreement nor any rights hereunder, in whole
or in part, shall be assignable or otherwise transferable by either party
without the express written consent of the other party; provided that either
party may assign this Agreement in the event of a merger for the purpose of
changing its domicile without the other party's prior written consent. Subject
to the above, this Agreement shall be binding upon and inure to the benefit of
the successors and assigns of the parties hereto.
15.4 Severability, Waiver or Amendment. If any Agreement provision is
determined by a court of competent jurisdiction to be contrary to law, the
remaining provisions of the Agreement will continue in effect. No waiver,
amendment or modification of any provision hereof shall be effective unless in
writing and signed by the party against whom such waiver, amendment or
modification is sought to be enforced. No failure or delay by either party in
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exercising any right, power or remedy hereunder shall operate as a waiver of any
such right, power or remedy.
15.5 Rights and Remedies Cumulative. Except as expressly provided herein,
the rights and remedies provided in this Agreement shall be cumulative and not
exclusive of any other rights or remedies provided at law, in equity or
otherwise.
15.6 Excusable Delays; Force Majeure. Neither party shall be responsible
for any delay in or failure to deliver or perform any obligations which is due
to circumstances beyond that party's reasonable control. In the event of any
such failure or delay, the time of performance shall be extended for a period
equal to the time lost by reason of the delay.
15.7 Governing Law. This Agreement is made under, governed by, and shall
be construed in accordance with the laws of the state of California, excluding
its choice of laws rule, as applied to contracts between California corporations
entered into and to be performed entirely in California. The prevailing party in
any judicial action brought to enforce or interpret this Agreement or for relief
for its breach shall be entitled to recover its costs and its reasonable
attorneys' fees incurred to prosecute or defend such action.
15.8 Entire Agreement. The provisions of this Agreement and the Exhibits
hereto constitute the entire agreement between the parties in connection with
the subject matter hereof and supersede all prior and contemporaneous
agreements, understanding, negotiations and discussions, whether oral or
written, between the parties hereto with respect to the subject matter hereof.
15.9 Counterparts. This Agreement may be executed simultaneously in two or
more counterparts, each of which will be considered an original, but all of
which together will constitute one and the same instrument.
IN WITNESS WHEREOF, the parties authorized representatives have executed
this Agreement as of the Effective Date.
NOOSH, INC. XXXXXXXXXXXXX.XXX, INC.
By /s/ Xxxxx Xxxxxxxxxx By /s/ Xxx X. Xxxxxxx
------------------------------ ------------------------------
Name: Xxxxx Xxxxxxxxxx Name: Xxx X. Xxxxxxx
--------------------------- ---------------------------
(Print) (Print)
Title: SVP Marketing & Title: VP Business Development
-------------------------- --------------------------
Business Development
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EXHIBIT A
DEVELOPMENT SCHEDULE
To be provided by the parties in accordance with Section 2.4.1
EXHIBIT B
SPECIFICATIONS
To be provided by the parties in accordance with Section 2.4.1
