EXHIBIT 10.29
WE-COMMERCE(TM) NETWORK SERVICES AGREEMENT
THIS WE-COMMERCE(TM) NETWORK SERVICES AGREEMENT ("Agreement") is entered this
third day of March 2000, by and between Mercata, Inc., a Delaware corporation
("Mercata"), and Football Northwest LLC, a Washington limited liability company
("FNW").
RECITALS
A. FNW owns certain sponsorship rights related to the National Football
League Franchise for the Seattle Seahawks. In connection with those sponsorship
rights, FNW operates a Web site on the World Wide Web (the "Web") at
xxx.xxxxxxxx.xxx (the "FNW Web site").
B. Mercata, Inc. ("Mercata") is an electronic commerce company, offering
certain merchandising and group buying services through its proprietary We-
Commerce technology and proprietary PowerBuy(TM) group purchases and its
xxx.xxxxxxx.xxx Web site (the "Mercata Web site"). Mercata offers others access
to these services through its proprietary We-Commerce Network.
C. The parties wish to link the FNW Web site to Mercata's We-Commerce
Network.
Therefore, in consideration of the mutual promises contained herein, the
receipt and sufficiency of which is hereby acknowledged, the parties agree as
follows:
AGREEMENT
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1. We-Commerce Network. "We-Commerce Network" means the network of Web sites
through which Mercata offers its proprietary PowerBuy method of group
purchasing.
2. Platform Store. Mercata shall create a new Web site to be hosted and
served by Mercata on its computer systems and servers and maintained by Mercata
(the "Platform Store"). The Platform Store shall have a look and feel similar to
and consistent with the FNW Web site, as illustrated in the site design mock-ups
attached hereto as Exhibit A-1; provided that Mercata shall at all times retain
all control over the look and feel of the Platform Store, the format of content
on and the placement of Merchandise within the Platform Store, the timing and
structure of particular PowerBuy group purchases, and other issues related to
the Platform Store. Commencing on the Launch Date and continuing thereafter
during the term of the Participation Agreement, all links from the FNW Web site
to Mercata shall be to the Platform Store.
3. Launch Date. "Launch Date" shall mean the date the Platform Store is
operational and available on the Web. The estimated Launch Date is March 10,
2000. Mercata shall have no liability for any failure of the Launch Date to be
earlier than the estimated Launch Date.
4. Linking to the Platform Store. FNW shall link the FNW Web site to the
Platform Store using graphical links provided by Mercata (the "Mercata Graphical
Links"). Mercata shall also have the right, but not the obligation, to provide
links between the Platform Store and various sites comprising the We-Commerce
Network (the "Network Links"). The Network Links, in any, shall be developed by
Mercata, may be graphical or text links and may contain Client Content.
5. Term and Termination.
(a) Term. Unless terminated earlier as provided in this Agreement, this
Agreement shall remain in effect for ninety (90) days from the Launch
Date.
(b) General Termination Rights. Either party may terminate this Agreement
for any reason upon thirty (30) days' prior written notice to the
other party
(c) Termination Upon Default. Either party shall have the right to
terminate this Agreement upon a Default by the other party. "Default"
shall mean any material breach of any term or condition of this
Agreement where such material breach is not cured within fourteen (14)
days after receipt by the breaching party of a written notice sent by
the non-breaching party identifying the material breach.
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(d) Effect of Termination. Upon the expiration or termination of this
Agreement, (i) the parties shall return or destroy all Confidential
Information of the other party in their possession, (ii) all use of
the other party's trademarks, brands, logos, and other materials and
information provided hereunder shall cease as promptly as commercially
reasonable, (iii) all licenses granted hereunder shall immediately
terminate.
6. Publicity. Upon execution of this Agreement, the parties may issue a joint
press release regarding this Agreement, the Platform Store and the We-Commerce
Network, the terms of which shall be approved by both Mercata and FNW.
Thereafter, neither party shall issue any press release or other public
statements without the prior written consent of both parties; provided that
Mercata shall have the right to generally publicize the existence of the
Platform Store and FNW's participation in the We-Commerce Network without FNW's
consent, and provided further that in any future state or federal securities
filings, Mercata may disclose the terms of this Agreement and identify FNW as a
We-Commerce Network participant. Except as specifically provided otherwise in
this Agreement, neither party shall use the name, trademarks or service marks of
the other party without first obtaining the prior written consent of the other
party.
7. License Granted to Mercata. In exchange for the payments described in
Paragraph 14, during the term of this Agreement FNW hereby grants to Mercata a
non-exclusive, limited license to organize, reproduce, publicly display,
distribute and otherwise use the graphics, logos, trademarks, and tradenames
provided to Mercata by FNW, including without limitation the materials listed in
Exhibit A-2, (collectively the "Client Content"), solely in connection with the
Platform Store, the We-Commerce Network, and any related promotional activities.
FNW shall promptly notify Mercata, in writing, if it becomes aware of any
restrictions or limitations on Mercata's rights to use the Client Content.
8. License Granted to FNW. During the term of this Agreement, Mercata hereby
grants to FNW a royalty-free, non-exclusive, limited license to organize,
reproduce, distribute and otherwise use the Mercata Graphical Links provided to
Mercata by FNW, solely in connection with the Platform Store and any related
promotional activities. Mercata shall promptly notify FNW, in writing, if it
becomes aware of any restrictions or limitations on FNW's rights to use the
Mercata Graphical Links.
9. Ownership of Intellectual Property. FNW understands and agrees that
Mercata is the sole and exclusive owner of the Platform Store and all of
Mercata's proprietary business methods and technology, including without
limitation its PowerBuy method of group buying, its We-Commerce technology, its
We-Commerce Network business methods, its We-Commerce Network technology, and
any expansions, improvements, or developments related thereto, whether created
solely by Mercata, solely by FNW, or jointly by the parties. FNW further
acknowledges and agrees that nothing herein shall create a license of Mercata's
proprietary business models, methods or technology.
10. Ownership of Data. All information collected in connection with the
Platform Store or the We-Commerce Network, including without limitation any
personal or other information collected from any customer of the Platform Store
or the We-Commerce Network, the number, amount and frequency of PowerBuy offers
(whether on particular products or in the aggregate), and all individual and
aggregated data and pricing curves obtained from PowerBuy group purchases and
the We-Commerce Network shall be the trade secrets of Mercata and the sole and
exclusive property of Mercata. Mercata shall have no obligation to share any
such information with FNW.
11. Confidentiality. Except as otherwise provided in this Agreement, FNW and
Mercata will each hold in confidence and, without the prior written consent of
the other, will not reproduce, distribute, transmit, transfer or disclose,
directly or indirectly, in any form, by any means, for any purpose, any
Confidential Information of the other except for internal use on an as needed
basis in connection with the Platform Store and/or the We-Commerce Network. As
used herein, the term "Confidential Information" shall mean: (a) the terms of
this Agreement; (b) business and technical information relating to the We-
Commerce Network, Mercata's We-Commerce technology and/or PowerBuy group
purchases; (c) information related to Mercata's operations, strategies,
performance, forecasts, and/or finances, including without limitation any
information relating to the number, amount, or frequency of PowerBuy offers on
particular products or in the aggregate, and (d) any other information that is
provided to one party by the other that is confidentially maintained and
proprietary to the disclosing party, and particularly any information which
derives economic value, actual or potential, from not being generally known to,
and not generally ascertainable through proper means by, other persons who can
obtain economic value from its disclosure or use. The recipient of Confidential
Information will exercise reasonable commercial care in protecting the
confidentiality of the other party's Confidential Information. Notwithstanding
the forgoing, either party may disclose the terms of this Agreement when
required to do so (i) by law or pursuant to any governmental rule, regulation or
request, or (ii)
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to any investor or prospective investor or acquirer; provided that the party
shall disclose only those terms required to be disclosed. Prior to any
disclosure pursuant to (i) above, the party proposing to disclose the terms of
this Addendum shall provide the other party prior written notice of such
proposed disclosure and an opportunity to seek injunctive or other similar
relief preventing or limiting such disclosure. Any disclosure pursuant to (ii)
above shall be subject to the terms of a nondisclosure agreement no less strict
than the terms of this confidentiality provision.
12. Disclaimer of Warranties. THIS AGREEMENT CONTAINS THE ONLY WARRANTIES,
EXPRESS OR IMPLIED, MADE BY MERCATA WITH RESPECT TO THE PLATFORM STORE AND/OR
THE WE-COMMERCE NETWORK. ANY AND ALL OTHER WARRANTIES REGARDING THE PLATFORM
STORE AND/OR THE WE-COMMERCE NETWORK, EXPRESS OR IMPLIED, ARE EXPRESSLY EXCLUDED
AND DECLINED. EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN, THE PLATFORM
STORE AND THE WE-COMMERCE NETWORK ARE PROVIDED TO FNW "AS IS." MERCATA DISCLAIMS
ANY IMPLIED WARRANTIES, IMPLIED PROMISES, AND/OR IMPLIED CONDITIONS OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND/OR NON-
INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MERCATA
SPECIFICALLY DISCLAIMS ANY WARRANTY REGARDING (1) THE PROFITABILITY OF THE
PLATFORM STORE OR THE WE-COMMERCE NETWORK; OR (2) THE FUNCTIONALITY,
PERFORMANCE, OR OPERATION OF THE PLATFORM STORE, THE WE-COMMERCE NETWORK, OR
MERCATA'S WEB SITE.
13. Good Faith Negotiations - Mercata agrees in good faith to continue its
negotiations and discussions to secure a sponsorship of the Seahawks for the
2000 football season.
14. Payment.
a. During the term of this Agreement, Mercata shall pay to FNW five percent
(5%) of Mercata's total Gross Revenue (defined below) on sales through the
Platform Store, less any amounts not received due to returns, bad debt
and/or fraudulent credit/debit transactions relating to such sales (the
"Commission"). For purposes of this provision, "Gross Revenue" shall mean
the total of all revenue actually received by Mercata on the sale of
merchandise through the Platform Store, resulting from customer sessions
that originate through a link from the FNW Web site to the Platform Store,
minus reasonable shipping and handling charges for the exact item ordered
if billed to the user, and any sales tax charged on such sales.
b. Payments pursuant to this Section shall be made within thirty (30) days
of the end of each calendar quarter in which such revenue is received by
Mercata. Mercata shall submit with each payment made pursuant to this
Section a report of the calculation of each such payment.
c. - FNW reserves the right to transfer revenue to a third party.
MERCATA, INC. FOOTBALL NORTHWEST LLC
By_____________________________________ By______________________________________
Printed Name___________________________ Printed Name____________________________
Its____________________________________ Its_____________________________________
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EXHIBIT A-1
[graphic of Seahawks web page]
