MERCHANT AND PARTNER NETWORK AGREEMENT
This Merchant and Partner Network Agreement (the "Agreement") is effective
as of the 8th day of May, 2000 (the "Effective Date") by and between Dynamic
Trade Inc. ("Network") and PTN Media ("Merchant").
BACKGROUND
Network is in the business of providing networked services between Internet
commerce Web sites (as such services are described more fully in Section 1(g)
hereof, (the "Services")). Merchant owns and maintains an on-line storefront on
the World Wide Web, accessible to the public with a URL of
xxx.xxxxxxxxxxxxxxx.xxx the "Merchant Site"). Network desires to provide the
Services to the Merchant, and Merchant desires to appoint Network to provide the
Service, all in accordance with the terms of this Agreement.
AGREEMENT
NOW THEREFORE, in consideration of the foregoing and the mutual covenants
and conditions contained herein, the parties agree as follows:
1. DEFINITIONS
(a) "Network Commission" shall mean 3% of the Net Sales Price.
(b) "Network Fee" shall equal $0.00 per month.
One time set up fee equal to $2,500 due at signing.
(c) "Payment Period" shall mean the interval at which payments shall be made
to Network and Partner Sites pursuant to Section 5(o). The Payment Period
shall be Calendar Monthly. Minimum Payment shall be $50.00.
(d) "Net Sales Price" shall mean the price at which Products are actually
sold by Merchant to a Qualified Customer, exclusive of transportation and
packaging costs, insurance, duties, taxes and other governmental charges,
commercial, trade and cash discounts actually granted by Merchant.
(e) "Products" shall mean those products available for sale on the Merchant
Site at any time during the term of this Agreement.
(f) "Qualified Customer" shall be a person who has accessed the Merchant
Site via a link from a Partner Site that is facilitated by Services and
who purchases from the Merchant Site within 90 days of such initial
visit.
(g) "Services" to be performed by Network for Merchant under the
ConnectCommerce(TM) suite of services include (i) working on Merchant's
behalf to secure and enroll appropriate Partner Sites for Merchant; (ii)
providing the system that links the Merchant Site to Partner Sites; (iii)
providing a server upon which the requisite software is housed; (iv)
tracking purchases by Qualified Customers through the Partner Network;
(v) billing Merchant for Partner Site Commissions; and (vi) dispersing
funds delivered to Network as payment of Partner Site Commissions which
meet payment criteria established by Network.
(h) "Partner Site" shall mean sites on the World Wide Web that agree to
provide a hypertext link or links that will direct third parties from
such site to the Merchant Site in exchange for payment by Merchant to
Partner Site of a commission for Products sold by Merchant to Qualified
Customers.
(i) "Partner Site Commissions" shall mean the percentage of Net Sales (as
defined in the respective Partner Agreement) to which each Partner Site
is entitled under its respective Partner Agreement. Standard Partner
Site Commission shall be 5% of Net Sales Price. Partner Site Commissions
shall vary from Partner Site to Partner Site with maximum Partner Site
Commission equivalent to 8%. All Partner Site Commissions above and
beyond this maximum shall be pre-approved by Merchant and have been
adjusted so as to compensate for all returned and canceled orders.
2. TERM
(a) Term. This Agreement shall commence on the Effective Date and shall
continue for a period of one year (the "Initial Term"). This Agreement shall
automatically renew annually thereafter for one year terms on the same terms and
conditions of this Agreement unless otherwise agreed to in writing by the
parties (herein collectively and individually called a "Renewal Term", and
together with the Initial Term, called the "Term"), unless this Agreement shall
be sooner terminated pursuant to the terms hereof.
(b) Termination. Notwithstanding Section 2(a) above, this Agreement may be
terminated by either party upon thirty (30) days advance written notice to the
non-terminating party. Such termination shall not relieve Merchant of the
obligation to pay all Partner Site Commissions and Network Commissions incurred
prior to termination, including unbilled Commissions.
3. APPOINTMENT OF NETWORK; LIMITATIONS ON AUTHORITY OF NETWORK
(a) Appointment of Network. Merchant hereby appoints Network, and Network
hereby accepts appoinment, to provide the Services to Merchant for the Term of
this Agreement.
(b) Independent Contractors. The relationship of Network and Merchant
established by this Agreement is that of independent contractors, and neither
party is an employee, agent, partner or joint venture of the other. The detailed
operations of Network under this Agreement are subject to the sole control and
management of Network. Network shall be responsible for all its own expenses and
employees. Network agrees that it shall incur no expense chargeable to Merchant,
except as may be specifically authorized in advance in writing in each case by
Merchant.
(c) Limitations on Authority of Network. The parties may from time to time
agree on one or more forms of generic contracts that Network will be authorized
to offer without need for signature by Merchant, provided they are accepted by
the Partner Site without change. Otherwise, the Network will have no authority
to assume or create any obligation on behalf of or in the name of Merchant or
the Merchant Site, or to make any representations or warranties on behalf of
Merchant or with respect to any Product. Neither Network nor any officer, agent
or employee of Network shall be considered an agent, employee or legal
representative of Merchant for any purpose.
4. OBLIGATIONS AND AGREEMENTS OF NETWORK
(a) Locating Partner Sites for Merchant. Network shall use best efforts to
locate and enroll appropriate Partner Sites to link to Merchant's Site, using
a three party agreement that defines the respective duties of each party and
specifics (each resulting contract an "Partner Agreement"). Network shall be
responsible for obtaining from the respective Partner Site prior to or at the
time of payment, accurate information as to its federal tax ID number, legal
name, and mailing address.
(b) Facilities. Network shall provide itself with, and be solely responsible
for, such facilities, employees, business organization, permits, licenses, and
other forms of clearance from governmental or regulatory agencies as are
necessary for the conduct of its business operations in accordance with this
Agreement.
(c) Tracking Product Purchases by Qualified Customers. Network shall identify
and track orders received from Qualified Customers so that Partner Site
Commissions can be calculated and in accordance with the respective Partner
Agreement.
(d) Payment to Partner Sites. Network is obligated pay Partner Site
Commissions in accordance with the payment criteria established in the Partner
Agreement but only after the Network has received payment from merchant. Network
shall establish a separate bank account for use only to retain deposits of
Partner Site Commissions until they are paid out to Partner Sites. Network may
withdraw interest, if any, earned on deposits to this segregated account and may
deposit commissions owed to Partner Sites by other merchants into this
segregated account, but shall not use funds in the account for any purpose other
than making payments to Partner Sites as required by their respective agreements
with Merchant and other merchants. Network shall only be required to make
payments to Partner Sites that have supplied the necessary Payment Information
to receive payment such as i) federal tax ID number, ii) company address and
iii) proper company name and are entitled to receive at least Minimum Payment.
5. OBLIGATIONS OF MERCHANT
(a) Maintaining Merchant Site. Merchant shall be solely responsible for
operating, maintaining and managing the content of the Merchant Site in the
ordinary course of its business. Merchant shall also be solely responsible for
all aspects of the relationship with the customer, including without limitation:
(i) accepting and processing Product orders; (ii) fulfilling Product orders;
(iii) managing returned Products and cancellations; (iv) collecting payment from
customers, including all taxes or other charges due upon sales of the Products;
and (v) servicing customers. Network shall not be deemed to be involved in any
transaction of any kind between Merchant and its customers, including Qualified
Customers.
(b) Setting Prices: Warranty. Merchant shall, in its sole discretion, set all
prices for Products and set all warranty terms, if any. In addition, any Product
warranty shall run directly from Merchant to the Qualified Customer. Merchant
shall provide Network with sales and marketing information applicable to
Products, and shall furnish at reasonable cost such catalogs, specifications,
promotional literature, and other materials pertaining to Products as are
available from time to time.
(c) Payment to Network. Merchant shall deliver to Network all Partner Site
Commissions, Network Fees and Network Commissions (the "Network Payment") within
twenty (20) days following the established Payment Period following Merchant's
receipt of payment from a Qualified Customer for Products.
(d) Assisting with Tracking. In the event of a disagreement between the
individual records of a Partner Site and the records maintained by the Network,
Merchant shall use its best efforts to assist Network in resolving the
discrepancy. Such assistance would include providing Network with order detail
information about the order in question.
6. REPRESENTATIONS AND WARRANTIES
Each party represents and warrants to the other party that: (a) such party
has all necessary right, power and authority to enter into this Agreement and to
perform its obligations under this Agreement; and (b) nothing contained in this
Agreement or required by such party's performance hereunder will place such
party in breach of any other contract or agreement to which it is a party.
7. LIMITATION OF LIABILITY
(a) Limitation of Merchant Liability. Merchant shall not be liable to Network
for Merchant's failure to fill orders placed by Qualified Customers, or for any
delay in filling such orders. Merchant shall not be liable to Network in the
event that Merchant encounters technical or other difficulties which may
periodically hinder the operation of the Merchant Site. MERCHANT MAKES NO
WARRANTIES TO NETWORK WITH RESPECT TO THE PRODUCTS OR THE MERCHANT SITE, WHETHER
EXPRESS, STATUTORY, IMPLIED, OR OTHERWISE, AND MERCHANT SPECIFICALLY DISCLAIMS
THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, AND NONINFRINGEMENT. IN NO EVENT SHALL MERCHANT'S LIABILITY
HEREUNDER EXCEED THE TOTAL AMOUNT OF NETWORK PAYMENTS THAT SHOULD HAVE BEEN
DIRECTED TO NETWORK UNDER THIS AGREEMENT.
(b) Limitation of Network Liability. NETWORK MAKES NO WARRANTIES TO MERCHANT
WITH RESPECT TO THE SERVICES (INCLUDING WITHOUT LIMITATION THE SOFTWARE AND ANY
OTHER INTELLECTUAL PROPERTY), WHETHER EXPRESS, STATUTORY, IMPLIED, OR OTHERWISE,
AND NETWORK SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES AND CONDITIONS OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. IN NO
EVENT SHALL NETWORK'S AGGREGATE LIABILITY HEREUNDER EXCEED THE TOTAL AMOUNT OF
NETWORK COMMISSIONS ACTUALLY PAID BY MERCHANT TO NETWORK UNDER THIS AGREEMENT.
(c) Limitation of Liability of Both Parties. NEITHER PARTY SHALL BE LIABLE TO
THE OTHER PARTY FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR INDIRECT
DAMAGES, LOSSES, COSTS OR EXPENSES OF ANY KIND, HOWEVER CAUSED, AND WHETHER
BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCTS LIABILITY OR ANY OTHER
THEORY OF LIABILITY REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES, LOSSES, COSTS OR EXPENSES. NEITHER PARTY SHALL BE
LIABLE TO THE OTHER PARTY FOR LOST OR IMPUTED PROFITS ARISING OUT OF THIS
AGREEMENT OR ITS TERMINATION. EACH PARTY HEREBY WAIVES ANY CLAIMS THAT THESE
EXCLUSIONS DEPRIVE SUCH PARTY OF AN ADEQUATE REMEDY.
8. CONFIDENTIALITY
In connection with the business relationship contemplated by this Agreement,
each party may receive or have access to commercially valuable technical and
non-technical confidential or proprietary information ("Confidential
Information") of the other party. Confidential Information includes all
information, whether oral or written, relating to the business of a party that
is not generally known or available to others, including, without limitation,
source code and documentation for software, trade secrets, customer lists,
pricing strategies, marketing and business plans, information concerning a
party's vendors, and a party's contemplated plans, strategies and prospects.
Each party acknowledges and agrees that any Confidential Information received or
obtained from the other party will be the sole and exclusive property of the
other party and may not be used, dissaminated or disclosed except as may be
necessary to perform the obligations required under this Agreement or as may be
required by law.
9. TRADEMARKS AND PROPRIETARY RIGHTS
(a) Ownership of Intellectual Property. Each party owns and shall retain all
right, title and interest in its names, logos, trademarks, service marks, trade
dress, copyrights and proprietary technology, including, without limitation,
those names, logos, trademarks, service marks, trade dress, copyrights and
proprietary technology currently used or which may be developed and/or used by
it in the future. Except as provided in this Agreement or the Partner Agreement,
neither party may distribute, sell, copy, reproduce or otherwise use any of the
intellectual property of the other party without the express written consent of
such party.
(b) Ownership of Data Collected by Network. All data that passes through and
is collected by the Network while performing the Services is property of the
Network. Only data that is collected by the Network while performing the
Services that can specifically identify the Merchant, its Qualified Customers or
its Customers shall belong to Merchant and will be treated under the
Confidentiality obligations in Section 8. Network uses and plans to continue to
use data that it collects in an aggregate manner (i.e. that information which is
gathered as a group of demographic data, and is not personally or company
identifiable) for purposes to benefit the operations of the Network and the
participating Merchants.
10. GENERAL PROVISIONS
(a) Governing Law. The rights and obligations of the parties under this
Agreement shall be governed by and construed under the laws of the State of
Illinois without reference to conflict of laws principles.
(b) Survival. The provisions of Section 1, 6, 7, 8, 9, and 10, and Sections
5(c) shall survive the termination or expiration of this Agreement for any
reason. All other rights and obligations of the parties shall cease upon the
effective termination date of this Agreement.
(c) Excuses. Neither party shall be deemed in default of this Agreement to
the extent that performance of its obligations or attempts to cure any breach
are delayed or prevented by reason of any act of God, fire, natural disaster,
accident, riots, acts of government, shortage of materials or supplies, or any
other cause beyond the reasonable control of such party; provided, that the
party whose performance is affected by any such event gives the other party
written notice thereof within ten (10) working days of such event or occurence.
(d) Notice. Any notice, communication, or statement relating to this
Agreement shall be in writing and deemed effective: (i) upon delivery when
delivered in person; (ii) upon transmission when delivered by verified facsimile
transmission; or (iii) when delivered by registered or certified mail, postage
prepaid, return receipt requested, to the address of the respective party below:
To Merchant at:
PTN Media
0000 X. Xxxxx Xx.
Xxx Xxxxx, XX 00000
ATTN: Xxxx Xxxxxx, President
To Network at:
Dynamic Trade Inc.
000 Xxxxx Xxxxxxxx Xxx. #0000
Xxxxxxx, XX 00000
Phone: 000-000-0000
Fax No.: 000-000-00??
Attn: Merchant Contracts
(e) Successors and Assigns. This Agreement shall be binding upon and inure to
the benefit of the parties hereto, their successors and assigns.
(f) Amendment. No change, amendment or modification of any provision of this
Agreement shall be valid unless in writing signed by both parties.
(g) No Waiver. The failure of either party to insist upon or enforce strict
performance by the other party of any provision of this Agreement or to exercise
any right under this Agreement shall not be construed as a waiver or
relinquishment to any extent of such party's right to assert or rely upon any
such provision or right in ?? or any other instance, and the same shall be and
remain in full force and effect.
(h) Severability. If it is determined by a court of competent jurisdiction as
part of a final nonappealable ruling, government action or binding arbitration,
that any provision of this Agreement (or part thereof) is invalid, illegal, or
otherwise unenforceable, such provision shall be enforced as nearly as possible
in accordance with the stated intention of the parties, while the remainder of
this Agreement shall remain in full force and effect and bind the parties
according to its terms. To the extent any provision (or part thereof) cannot be
enforced in accordance with the stated intentions of the parties, such provision
(or part thereof) shall be deemed not to be a part of this Agreement, provided
that in such event the parties shall use their best efforts to negotiate in good
faith, a substitute, valid and enforceable provision which most nearly effects
the parties' intent in entering into this Agreement.
(i) Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original and both of which when taken together shall be
deemed to constitute the same instrument.
(j) Entire Agreement. This Agreement and the Partner Agreement ultimately
entered into by and among Network, Merchant and the Partner Sites set forth the
entire agreement and understanding of the parties relating to the subject matter
thereof, and merges all prior discussions and writings between them with respect
to the contents of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused their duly authorized
representatives to execute this Agreement effective as of the Effective Date.
PTN MEDIA DYNAMIC TRADE Inc.
/s/ Xxxxx Xxxxxx /s/ Xxxxxxx X. Xxxxxxxx
------------------------------- -------------------------------
(Signature of Authorized Agent) (Signature of Authorized Agent)
Xxxxx Xxxxxx Xxxxxxx X. Xxxxxxxx
(Printed Name) (Printed Name)
President Vice President
(Title)
[Remainder of Page Intentionally Left Blank]
