Microsoft Confidential
CONFIDENTIAL TREATMENT REQUESTED. Confidential portions of this
document have been redacted and have been separately filed with
the Commission.
ECOMMERCE MERCHANT
AGREEMENT FOR The Plaza on MSN
--------------------------------------------------------------------------------
P R E A M B L E
--------------------------------------------------------------------------------
The Microsoft Network, L.L.C., a Delaware limited liability company ("MSP"), by
and through its manager, Microsoft Corporation ("Microsoft"), agrees with the
undersigned ("Merchant") that the Merchant specified in the Schedule will be
offered a link mall service to "Merchant Site", xxx.xxxxxxxxxxxxxx.xxx, as part
of The Microsoft Network pursuant to the General Terms and all Exhibits and
Riders attached hereto. Terms not defined shall have the meanings ascribed to
them in the General Terms attached hereto.
--------------------------------------------------------------------------------
S C H E D U L E
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Merchant Name: XxxxxxxxxXxxxx.xxx Inc.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Entity Type (if incorporated, state place of incorporation): Delaware
Principal Place of Business (list state if in U.S.A.; list country if outside
U.S.A.):
Merchant Address
000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
*** Confidential Portions of this document have redacted and have been
separately filed with the Commission.
Address for Notices:
(000 Xxxxx Xxxxxx, XX 00000
Phone: Attention: Xxxx Rosendoft, Vice President, New Business Development
Facsimile Number: 000-000-0000
Email Address (xxxxxxxxxx@xx.xxx)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
MSP SERVICES:
MSP will provide live link(s) from the Microsoft Web Site(s) as designated by
MSP in its sole discretion, to The Plaza on MSN on MSN's Premier Service. From
The Plaza on MSN on MSN's Premier Service, MSP will provide a link directly to
the Merchant Web Site.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Merchant SERVICES:
Merchants co-branded URL: xxxx://xxx.xxxxxxxxxxxxxx.xxx
Merchants e-mail address for Customer Service to the co-branded site: (your
customer service e-mail address here)
Merchant.
Merchant shall deliver via e-mail to MSP within seven (7) days after the last
day of each week an accounting setting forth the amount of Gross Revenue, the
basis of the calculation thereof, the amount of commission payable, if any, for
such period and sales/title tracking information (which shall include a tracking
mechanism that determines through which Microsoft Web Site a Microsoft customers
has obtained access to the Merchant site, in addition to Monthly User
information which must include at a minimum:
- Traffic by referring web link
- Number of page views
- Number of unique users)
In addition, Merchant will supply MSP with a password, beginning December 1,
1997, which will enable MSP to enter a password protected area on the Merchant
Site and obtain MSP's accounting statistics as of a recent date.
In addition, within thirty (30) days after the end of each three-month
anniversary of the date of execution of this Agreement, Merchant will provide
MSP with a statement of activity containing information similar in nature to
that described in the clause above.
Merchant will maintain sole responsibility for all costs for Merchant Site
development, management, tracking, support, and maintenance. Merchant will
ensure that the site content is refreshed as appropriate on a regular basis.
Merchant will make every reasonable effort to ensure that site is "live" for all
customers. MSP will maintain sole responsibility for all costs for The Plaza on
MSN's Premier Service, including development, management, support, and
maintenance.
*** Confidential Portions of this document have redacted and have been
separately filed with the Commission.
-2-
Merchant is solely responsible for product quality, product availability,
product fulfillment and customer service for all Products and or services
offered and/or sold on the Merchant Site. MSP acts as a link operator only, and
will provide marketing support only as noted in this contract under Special
Provisions.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Fees:
Guaranteed ***: During the Term Merchant shall pay $*** to MSP ***. Merchant is
responsible for ensuring that all payments are made on a timely basis, MSP will
not invoice Merchant for any amounts owing pursuant to this Agreement
Commission: In addition to the Guaranteed Fee, Merchant shall pay MSP *** of
Merchant's Gross Revenue less actual returns and actual bad debt incurred during
the applicable period. Each *** period (based on the anniversary date of
execution of this Agreement) Merchant shall be entitled to *** (or the
equivalent of ***) of the Guaranteed Fee applicable to *** period from any
Commissions owing to MSP for the applicable *** period. *** All payments of the
Fees must be in a form acceptable to MSP, in its sole discretion, and addressed
to Xxxxxxx Xxxxxxxx, c/o Microsoft Corporation, Xxx Xxxxxxxxx Xxx, Xxxxxxx, XX
00000
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Term Start Date:
15 October 1997
Term end Date:
***
Renewal Options (if any):
***
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Special Provisions (if any):
Merchant will provide the following:
- Electronic mail capabilities between the customer and Merchant and customer
service standards & practices***.
- ***
- ***
*** Confidential Portions of this document have redacted and have been
separately filed with the Commission.
-3-
- The Plaza on MSN on MSN's Premier Service's "GO BACK to The Plaza" button or
similar reverse link agreed upon by both parties - to be used for linking from
the Merchant site back to The Plaza on MSN on MSN Premier Service at
xxx.xxxxx.xxx.xxx. This link will be available on Merchant site no later than
January 1, 1998.
- ***
MSP will provide the following:
- The Plaza on MSN on MSN's Premier Service's "GO BACK to The Plaza" button or
similar reverse link agreed upon by both parties - to be used for linking from
the Merchant site back to The Plaza on MSN on MSN Premier Service at
xxx.xxxxx.xxx.xxx. This will be determined by MSP in its sole discretion, and
will be available on Merchant site no later than January 1,1998.
- ***
- ***
- ***
- Provided that Merchant's Site is fully functional and all other aspects
necessary to link between The Plaza on MSN on MSN's Premier Service and such
Merchant Site are completed no later than 15 October 1997 then MSP***. General
"bookseller" shall mean any bookseller excluding specialty booksellers and/or
Merchants whose primary business is not selling books, but may sell books as a
part of their total product offering.
- ***
MSP disclaims any implied warrants, promises, or guarantees of site traffic to
Merchants, number of unique users/consumers, Merchant product promotion
rotation, or industry-specific exclusivity. Merchant disclaims any implied
warranties, promises, or guarantees of commissions (other than the Guaranteed
Fee) payable to MSP hereunder.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
E N D O F S C H E D U L E
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
*** Confidential Portions of this document have redacted and have been
separately filed with the Commission.
-4-
THIS AGREEMENT CONSISTS OF THE PREAMBLE, THE SCHEDULE, THE GENERAL TERMS, AND
ALL ATTACHED RIDERS AND EXHIBITS THAT ARE SIGNED ON BEHALF OF BOTH MSP AND
Merchant.
THE MICROSOFT NETWORK, L.L.C. XxxxxxxxxXxxxx.xxx Inc.
("MSP"), by and through its ("Merchant")
manger, MICROSOFT CORPORATION
("Microsoft")
By (signature) /s/ X. Xxxxxxxx By (signature) /s/ Xxxx X. Xxxxxxxxx, VP
Name X. Xxxxxxxx Name Xxxx Xxxxxxxxx
Title Business Manager, The Plaza Title Vice President-New Business
The Plaza Development
Date: 10/27/97 Date:
GENERAL TERMS
1. Definitions. As used herein, the following terms are defined and used in this
Agreement as follows:
1.1 Affiliate. When used in reference to either party, any company or
entity which controls, or is controlled by, or is under common control with such
party.
1.2 Gross Revenue. The aggregate of all kinds of consideration, including,
but not limited to, cash, barter and any other in-kind consideration, received
by Merchant or any other party on behalf of Merchant for purchases initiated at
The Plaza on MSN on MSN's Premier Service, any Microsoft Web Site, the MSN
Transition Page or the Mirrored Web Site.
1.3 Microsoft Web Sites. Web sites operated by or affiliated with MSP which
may include, at MSP's sole discretion for the purposes hereof, MSN Premier
Service, MSNBC, xxx.xxx, xxxx.xxxxxxxxx.xxx and/or other services as they become
available.
1.4 MSN. The Microsoft Network online service, operating on open Microsoft
and/or internet-based platforms, including, without limitation, (a) xxx.xxx.xxx
and related Web Sites (which may include those managed by third parties and
those based overseas by MSP or Microsoft), and (b) MSN-branded Web pages that
are part of a third party's Web Site.
1.5 Plaza Tenant. Each Web Site operator participating in The Plaza on MSN
on MSN's Premier Service.
1.6 The Plaza on MSN on MSN's Premier Service. The MSN service referred to
as "The Plaza on MSN on MSN's Premier Service on MSN" or by such other name as
MSP may determine in its sole discretion (as solely branded by MSP or co-branded
with its sponsors) in which goods and services from Plaza Tenants are offered
for purchase.
1.7 Product. Any product or service sold or otherwise provided by Merchant
to a customer or internet user during access by such customer or internet user
to the Merchant Site by means of The Plaza on MSN on MSN's Premier Service, or
any other Microsoft Web Site.
*** Confidential Portions of this document have redacted and have been
separately filed with the Commission.
-5-
1.8 Web (and related terms). That part of the Internet known as the World
Wide Web, containing, inter alia, pages written in hypertext markup language
(HTML). A "Web page" is a document on the Web which has a distinct URL address.
A "Web Site" is a collection of inter-related Web pages.
1.9 Net Sales. Gross Revenue less amounts collected by Merchant for sales
taxes, duties, gift wrapping, shipping, handling, and similar charges, amounts
due to credit card fraud and bad debt and credits for returned goods. All
available books on the Merchant Site will be included in the computation of Net
Sales, regardless of whether the book is a Fast Delivery or a Special Order
item.
2. Term. ***
3. Merchant Obligations.
3.1 Generally. Merchant will enable access to the Merchant Site throughout
the Term. The Merchant will monitor all sales and other activity in the Merchant
Site to verify ongoing operation of the Merchant Site and its capacity to track
customers and/or Internet users accessing the Merchant Site by means of The
Plaza on MSN on MSN's Premier Service. Merchant will ensure that customers and
Internet users are timely advised of their purchases and will, for audit
purposes only, provide MSP with electronic copies.
3.2 No Exclusivity. The Merchant Site is not exclusive to MSN; that is, at
all times during the Term, the Merchant Site may offer any Internet users the
right and/or ability to purchase Products at the Merchant Site by any means.
4. MSP Obligations.
4.1 ***
5. Promotion and Marketing.
5.1 Generally. *** All such activities as undertaken by either party will
comply with applicable laws and regulations.
5.2 Use of Materials. (a) Subject to Merchant's prior written approval,
which shall not be unreasonably withheld, MSP may use the name and logo of the
Merchant Site (as provided in Section 15) in promoting, advertising and
marketing The Plaza on MSN on MSN's Premier Service, provided that references to
Merchant and/or the Merchant Site and use of Merchant and/or Merchant Site logos
will be in compliance with Section 15 and be less prominent than references to
The Plaza on MSN on MSN's Premier Service and/or use of MSN logos or screen
shots. Provided that Merchant provides MSP with not less than three current,
preapproved screen shots of the Merchant Site, MSP's use of other screen shots
from the Merchant Site in MSN marketing for The Plaza on MSN on MSN's Premier
Service will be subject to Merchant's prior written approval. All requests for
Merchant's approval shall be deemed approved if Merchant fails to respond to any
request by MSP under this paragraph within 5 business days. Merchant will use
its best efforts to use the materials in accordance with MSP's policies. MSP
will provide Merchant with such policies as they are amended from time to time.
All approvals expire upon expiration of this contract. (b) Subject to MSP's
written approval, which will not be unreasonably withheld, Merchant may use
MSN's name and logo, and MSN-furnished marketing materials, provided that all
such use will be in compliance with Section 15 and MSP policies. Merchant agrees
to use MSN-furnished marketing materials solely for the purpose of promoting,
advertising and marketing the availability of the Merchant Site on The Plaza on
MSN on MSN's Premier Service. Merchant may not use screen shots of MSN areas or
sites outside the
*** Confidential Portions of this document have redacted and have been
separately filed with the Commission.
-6-
Merchant Site for any purpose. All requests for MSP's approval shall be deemed
approved if MSP fails to respond to any request by Merchant under this paragraph
within 5 business days. Merchant will use its best efforts to use the materials
in accordance with MSP's policies; provided that MSP furnishes to Merchant such
policies as they are amended from time to time. All approvals expire upon
expiration of this contract.
6. Sponsorship and Advertising. MSP may include paid advertising, consisting of
Web link banners, in The Plaza on MSN on MSN's Premier Service. MSP may also
designate sponsors of all or any portion of The Plaza on MSN on MSN's Premier
Service as it deems advisable.
7. Product Transactions.
7.1 MSP will be entitled to the fee(s) specified in the Schedule.
7.2 Statements. Refer to applicable terms of Schedule.
(a) MSP may, at its expense, cause an audit to be made of the
applicable records in order to verify statements issued by Merchant. Such audit
shall be conducted upon no less than 5 days advance notice to Merchant during
regular business hours at Merchant's offices and in such a manner as not to
interfere with Merchant's normal business activities. Such audits shall be made
no more often than once every twelve (12) months during the Term and for a
period of two (2) years following the end of the Term. If an audit reveals that
Merchant has under-paid MSP by ten percent (10%) or more of the amounts due for
any audited period of time, Merchant agrees, in addition to recomputing and
making immediate payment to MSP of all amounts due, plus interest at the highest
prime rate set forth from time to time in the Wall Street Journal in the United
States plus two percentage points (or, if less, at a rate equal to the highest
rate permitted under applicable law), based on the actual and true amounts due
and owing, to pay MSP all reasonable costs and expenses incurred by MSP in
conducting such audit, including, but not limited to, any amounts paid to any
auditor or attorney. MSP shall have the right to audit a Merchant's site for
accuracy of site traffic and customer transactions.
7.3 Taxes. Merchant acknowledges and agrees that MSP has no responsibility
with respect to tax billing or collecting relating to sales made and/or charges
assessed to customers or other internet users accessing the Merchant Site by
means of The Plaza on MSN on MSN's Premier Service or any other Microsoft Web
Site.
8. Hosting. Merchant is solely responsible for hosting of the Merchant Site
(including the MSN Transition Page) and MSP is solely responsible for hosting of
all programs, content, pages and materials comprising The Plaza on MSN on MSN's
Premier Service.
9. Tracking.
9.1 Generally. Merchant agrees to (a) use usage tracking tools that can
provide MSP the specified tracking information and resources to enable
assessment and verification of data relating to Merchant Site usage by means of
The Plaza on MSN on MSN's Premier Service, (b) provide access to MSP to log
files relating to Merchant Site usage by means of The Plaza on MSN on MSN's
Premier Service, delivered and formatted in a manner reasonably specified by
MSP, and (c) follow such other directions and procedures as are reasonably
determined to be necessary by MSP to enable resolution of customer and/or
internet user support issues relating to usage of the Merchant Site by means of
The Plaza on MSN on MSN's Premier Service.
*** Confidential Portions of this document have redacted and have been
separately filed with the Commission.
-7-
10. Confidentiality. Neither party will use or disclose to any third party, any
confidential information of the non-disclosing party. As used herein, the term
"confidential information" means all non-public information that a party
designates as being confidential, or which, under the circumstances of
disclosure ought to be treated as confidential including but not limited to the
terms of this Agreement, know-how and materials provided pursuant to this
Agreement, provided that either party may disclose the terms of this Agreement
in confidence to its immediate legal and financial consultants and advisors as
required in the ordinary course of such party's business, provided that such
immediate legal and financial consultants and advisors agree in advance to be
bound by the confidentiality provisions set forth in this Section 10. All
tangible materials containing Confidential Information ("Confidential
Materials"), including documents, tapes, computer disks and other fixed storage
devices (whether or not machine or user readable), are the properly of the
providing party. No later than 15 business days following the End Date,
Confidential Materials in either party's possession must be resumed or destroyed
(with appropriate certification of destruction if not returned). This Section 10
will survive any suspension, termination or expiration of this Agreement. ***
11. Warranties.
11.1 By Merchant. Merchant warrants, represents and agrees that (a)
Products offered, sold or otherwise provided as part of the Merchant Site are
made, offered, sold or otherwise provided in compliance with applicable laws and
will not infringe the copyrights, trademarks, service marks or any other
proprietary right of any third party, (b) Merchant will use its best efforts to
ensure that the operation of the Merchant Site is in compliance with MSP's
policies, procedures and/or technical specifications which may be provided by
MSP from time to time during the Term and all applicable laws, and (c) Merchant
has the power and authority to enter into and perform its obligations under this
Agreement.
11.2 By MSP. MSP warrants, represents and agrees that MSP has the power and
authority to enter into and perform its obligations under this Agreement.
11.3 Each Party represents and warrants to the other Party that: (i) such
Party has the full corporate right, power and authority to enter into this
Agreement and to perform the acts required of it hereunder; (ii) the execution
of this Agreement by such Party, and the performance by such Party of its
obligations and duties hereunder, do not and will not violate any agreement to
which such Party is a party or by which it is otherwise bound; and (iii) when
executed and delivered by such Party, this Agreement will constitute the legal,
valid and binding obligation of such Party, enforceable against such Party in
accordance with its terms.
11.4 No Additional Warranties. THIS SECTION 11 CONTAINS THE ONLY WARRANTIES
MADE BY MERCHANT AND MSP. ANY AND ALL OTHER WARRANTIES, INCLUDING FOR
NON-INFRINGEMENT AND THE OPERATION, FUNCTIONALITY, INTERRUPTION OR LACK OF
RESOURCES OF MSN OR THE MERCHANT SITE, ARE EXPRESSLY EXCLUDED AND DECLINED. EACH
PARTY DISCLAIMS ANY IMPLIED WARRANTIES, PROMISES AND CONDITIONS OF
MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE, WHETHER AS TO MSN OR
THE MERCHANT SITE, THE TECHNOLOGY DEPLOYED IN CONNECTION THEREWITH, OR PRODUCTS
OR SERVICES OFFERED AND/OR SOLD IN CONNECTION THEREWITH.
11.5 Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY IS
LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL,
INCIDENTAL OR PUNITIVE DAMAGES INCURRED BY THE OTHER PARTY EVEN IF THE OTHER
PARTY HAS BEEN ADVISED THAT SUCH DAMAGES ARE POSSIBLE.
*** Confidential Portions of this document have redacted and have been
separately filed with the Commission.
-8-
11.6 Survival. Each party's representations and warranties survive the
termination of this Agreement.
12. Indemnification.
12.1 Scope of Obligation. Each party will indemnify and hold harmless the
other party, and the other party's Affiliates, from and against any claims,
actions, losses, liabilities, damages, settlements, judgments, arbitration
awards, costs and expenses (including reasonable outside attorneys' fees and
expenses) (collectively "Claims") resulting from such party's breach (or, with
respect to the defense thereof, alleged breach) of its covenants, warranties and
representations as set forth in this Agreement or resulting from either party's
approved use of materials obtained from the other party hereunder (including,
without limitation, logos, trademarks or trademarks of the other party) which
infringes the trademark or copyright or other proprietary rights of any third
party; provided, however, that neither party shall be obligated to indemnify the
other party for claims arising out of use of materials created by third party
users of the Microsoft Web Sites or the Merchant Site, as the case may be. For
purposes hereof, Merchant's indemnity obligation hereunder extends equally to
MSP and Microsoft.
12.2 Manner of Exercise. If a party requests to be indemnified ("requesting
party"), it must give prompt notice to the other party ("requested party")
specifying all relevant details of the Claim. The requested party may, at its
option, defend the Claim, in which event the requesting party will cooperate
fully and may participate in such defense with counsel of its own choice,
provided that it will be responsible for all expenses relating to such separate
counsel. If the requested party assumes the defense of a Claim, its obligation
will be limited to paying the attorneys' fees, costs and expenses associated
with such defense (except as otherwise expressly provided herein) and holding
harmless the requesting party from and against any judgment paid on account of
such Claim or monetary settlement the requested party has made (with the
requesting party's approval, not to be unreasonably withheld) or approved. The
requesting party may, if needed or desired, join the requested party as a party
in any litigation in respect of a Claim for which indemnity is requested. No
settlement may be made without the requested party's prior approval. Neither
party is responsible for loss of profits or consequential damages incurred by
the other due to a Claim. If either party fails to fulfill its material
obligations, the other party will be deemed excused from its obligations
pursuant to Section 12.1.
12.3 Survival. This Section 12 will survive any suspension, termination or
expiration of this Agreement.
13. Default and Breach.
13.1 Events of Default. After giving notice to the defaulting party and
following the completion of the applicable cure period set forth in Section
13.2, the nondefaulting party may declare the other party to be in breach of
this Agreement and may exercise the remedies specified in Section 13.3 upon the
occurrence of any of the following default events:
(a) failure to perform or comply with any material provision of this
Agreement, including without limitation either party's failure to file or
provide required statements and/or make payments due;
(b) admission in writing of an inability to pay debts as they mature,
or making an assignment for the benefit of creditors;
(c) impairment of financial condition such that the other party has
justifiable grounds to believe and can reasonably demonstrate that the impaired
party will be unable to fulfill its obligations under this Agreement; or
*** Confidential Portions of this document have redacted and have been
separately filed with the Commission.
-9-
(d) filing of a petition under any bankruptcy act, receivership
statute or similar law or statute, by either party, or the filing of such a
petition by any third party against either party, or the making of an
application for a receiver by either party, where such petition or application
is not dismissed or otherwise favorably resolved within 60 days.
13.2 Cure Period. (a) Subject to Section 13.2(b), upon receiving a default
notice, the defaulting party will have 15 business days to cure the default,
provided that if the default is not reasonably susceptible of cure within such
period, the non-defaulting party's right to exercise the remedies specified in
Section 13.3 will be suspended for so long as the other party diligently pursues
all reasonable steps to cure as expeditiously as possible. Notwithstanding the
foregoing, such suspension (i) will not arise for default events that are
incapable of cure, and (ii) may nonetheless result in early termination of this
Agreement upon notice given by the non-defaulting party if cure is uncompleted
after 90 days.
(b) Notwithstanding Section 13.2(a), (i) the non-payment of monies due
must always be cured within the 15-business day cure period. and (ii) unless
both parties otherwise expressly agrees in writing, there shall be a 48-hour
cure period with respect to the operation of the Merchant Site in accordance
with MSP's published policies, procedures and technical specifications, and in
compliance with applicable laws.
13.3 Remedies. If either party fails to timely cure an event of default (if
cure is authorized pursuant to Section 13.2), subject only to Section 16.3, the
nondefaulting party will have the right to declare the other party in breach of
this Agreement and suspend performance or, alternatively, terminate this
Agreement upon notice, whereupon the non-defaulting party's obligations will
immediately cease. The non-defaulting party's rights are cumulative and not in
lieu of any other rights and remedies under this Agreement or otherwise provided
by law or in equity. Upon suspension or termination, neither party will hold
itself out as having rights or powers pursuant to this Agreement (except in
respect of provisions of this Agreement that survives suspension or
termination). Time is of the essence of this Agreement.
14. Notices. All notices given hereunder must be in writing and personally
delivered, or sent by registered or certified mail (return receipt requested),
facsimile, email or overnight courier. A notice sent by facsimile or email must
be confirmed by sending a copy of such notice by registered or certified mail or
overnight courier. Notices will be deemed given on the date received. Notices to
MSP must be sent to Xxx Xxxxxxxxx Xxx, Xxxxxxx, XX 00000-0000 XXX (facsimile
number (000) 000-0000), Attention: Director, Business Development. Notices to
Merchant must be sent to the address for notices specified in the Schedule.
Either party may change its address for notices at any time by giving notice to
the other party as provided herein.
15. Intellectual Property. Each party will use the appropriate trademark,
product description and trademark symbol (either "TM" or "R") and copyright
symbol (C), and clearly indicate ownership of trademarks, trade names and/or
product names ("Marks") and copyrights, whenever first mentioned in any
advertisement, brochure or other material in connection with MSN or the Merchant
Site. Each party will, upon request, provide the other party with samples of
marketing literature that include the other party's Marks or copyrights. Each
party agrees that, as between the parties, (a) the other party's Marks and
copyrights and the good will associated therewith are and will remain the sole
property of the other party; (b) this Agreement does not
*** Confidential Portions of this document have redacted and have been
separately filed with the Commission.
-10-
confer in either party any right of ownership in the other party's Marks or
copyrights; (c) all uses by one party of the other party's Marks and/or
copyrights will inure to the benefit of the owning party; and (d) when using the
other party's materials, if any such materials contain copyright, patent,
trademark or other notices evidencing the other party's ownership of rights in
intellectual property, the using party will not delete, modify, remove or
diminish the prominence of any such notices.
16. Other Provisions.
16.1 No Ongoing Waiver. No waiver of any breach of any provision of this
Agreement constitutes a waiver of any prior, concurrent or subsequent breach of
the same or any other provisions, and will not be effective unless made in
writing and signed by an authorized representative of the waiving party.
16.2 Excuse. Neither party is liable for, and will not be considered in
default or breach of this Agreement on account of, any delay or failure to
perform as required by this Agreement as a result of causes or conditions beyond
such party's reasonable control which such party is unable to overcome by the
exercise of reasonable diligence, provided that the affected party will use
reasonable efforts to resume normal performance as promptly as possible.
16.3 Dispute Resolution. If a dispute arises hereunder, upon either party's
written request (containing a statement specifying the basis of the dispute),
the parties will each appoint a senior representative to attempt in good faith
to resolve the dispute. Except for disputes where preliminary injunctive relief
is an appropriate remedy, no formal legal proceedings may be commenced with
respect to any dispute until either party determines in good faith (but no
earlier than five business days following the initiation of discussion) that
amicable resolution through continued negotiation appears unlikely.
16.4 Governing Law; Venue; Attorneys' Fees. This Agreement is governed by
the laws of the State of Washington, U.S.A. All actions, proceedings or
litigation relating hereto will be instituted and prosecuted solely within King
County, State of Washington, U.S.A. MSP and Merchant hereby consent to the
jurisdiction of the state courts of Washington and the federal courts located
within such state with respect to any action, dispute or other matter arising
out of or relating to this Agreement. In any legal proceeding between the
parties relating to the enforcement of any rights arising out of or relating to
this Agreement, the primarily prevailing party will be entitled to recover its
reasonable attorneys' fees and court costs.
16.5 Riders, Schedules, and Exhibits. All Riders, Schedules, and Exhibits
attached to this Agreement that are contemporaneously signed on behalf of both
parties are incorporated herein by this reference.
16.6 Assignment; Transfer of Control. (a) This Agreement may not be
assigned, by operation of law or otherwise, by either party without the other
party's prior written consent. Notwithstanding the foregoing, any assignment of
this Agreement to a person or entity acquiring all or substantially all of the
assets of either party where such assignment results in the transfer of
management or control or significant ownership interest in either party will
give the non-assigning party the right to terminate this Agreement as provided
in Section 16.6(b). In any assignment proposed, the proposed assignee must agree
in writing to be bound by the terms of this Agreement. Any assignment contrary
to this Section 16.6(a) will be void and of no effect.
*** Confidential Portions of this document have redacted and have been
separately filed with the Commission.
-11-
(b) In the event of the anticipated sale or transfer of management or
control of (or a significant ownership interest in) either party ("Transfer"),
assigning party will give notice to the non-assigning party of such Transfer
(including the proposed transferee) not less than 30 days prior to the effective
date of such Transfer (if such Transfer is voluntary) or as soon as possible
after the Transfer (if such Transfer is involuntary). Upon the occurrence of a
Transfer, the non-assigning party may elect to terminate this Agreement. The
non-assigning party must give notice to the assigning party of the non-assigning
party's election to terminate this Agreement due to the Transfer within 15
business days after the later of the following dates: (i) the date on which the
non-assigning party ascertains the occurrence of the Transfer, or (ii) the date
on which the non-assigning party receives the assigning party's notice of such
Transfer.
(c) Neither party will pledge or hypothecate its rights or delegate
its obligations under this Agreement except as part of a permitted assignment of
rights.
16.7 Relationship of Parties. This Agreement does not create or constitute
a partnership, joint venture or agency relationship or the grant of a franchise
as defined in the Washington Franchise Investment Protection Act, RCW 19.100, as
amended, or 16 CFR Section 436.2 or otherwise.
16.8 Section Headings. Headings and captions used in this Agreement
(including attached Riders and Exhibits) are for convenience only and do not
supersede or modify any provisions.
16.9 Amendments. This Agreement may only be amended by a written instrument
duly signed by authorized representatives of both MSP and Merchant.
16.10 Third Party Enforcement. Merchant agrees that its obligations under
this Agreement may be enforced by or on behalf of any Affiliate of MSP.
16.11 Meaning of "purchase" or "sale". As used herein, a "purchase" or
"sale" includes a license and/or a licensing arrangement; where applicable, use
of such terminology will not be deemed to waive, impair, or otherwise affect the
intellectual property rights of MSP, Microsoft or Merchant.
16.12 This Agreement shall not be modified except by a written agreement
dated subsequent to the date of this Agreement and signed on behalf of Merchant
and MSP by their respective duly authorized representatives.
16.13 If any provision of this Agreement shall be held by a court of
competent jurisdiction to be illegal, invalid or unenforceable, the remaining
provisions shall remain in full force and effect.
17. Entire Agreement. This Agreement embodies the entire agreement between the
parties and supersedes all previous and contemporaneous agreements,
understandings and arrangements with respect to the subject matter hereof,
whether oral or written. Independent Investigation. Both parties acknowledge
that they have read this Agreement and agree to all its terms and conditions.
Both parties understand that they may at any time (directly or indirectly)
solicit customer referrals and enter into agreements with other entities on
terms that may differ from those contained in this Agreement. It is further
understood that both parties may operate web sites that are similar to or
compete with each others web sites. Both parties agree that they are not relying
on any representation, guarantee or statement other than set forth in this
Agreement.
*** Confidential Portions of this document have redacted and have been
separately filed with the Commission.
-12-
Revised: 8/27/1997
EXHIBIT A
MSP Policies
GUIDELINES FOR DISPLAYING THE PLAZA
ON MSN TM LINK LOGO
***
CONTRACT NUMBER:___________
AMENDMENT NUMBER 4 TO
ECOMMERCE MERCHANT AGREEMENT
This AMENDMENT NUMBER 4 TO THE ECOMMERCE MERCHANT AGREEMENT, dated as of the
27th day of October 1997 (the "Agreement"), is made by and between Microsoft
Corporation, a Washington U.S.A. corporation ("Microsoft"), and
xxxxxxxxxxxxxx.xxx inc., a Delaware U.S.A. Corporation ("Merchant"), to amend
the Agreement as set forth herein. Unless otherwise defined herein all defined
terms have the same meanings set forth in the Agreement:
WHEREAS, Microsoft's online e-commerce offerings are undergoing upgrading and
improvement, and therefore an amendment to the terms set forth in the Agreement
is necessary;
Now, therefore, for good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto agree that the following
shall be added to the Agreement and, as to the financial terms, obligations and
other matters expressly set forth herein, shall supercede the terms of the
Agreement:
1. Microsoft maintains a web-based portal site intended for users in the United
States and currently known as "XXX.XXX" ("Portal Site").
1.1. Microsoft currently anticipates that, among other things, the Portal
Site will feature a home page as its top-most page ("Home Page") and
several secondary pages grouped by content theme ("Channels"). The
Channels will be available from the Home Page via persistent hypertext
links prominently displayed above the fold in a bar on the leftmost
portion of the Home Page. Examples of Channels that Microsoft currently
expects to feature on the Portal Site include: Autos, Business,
Computing, Games, Health, News, Personal Finance, Real Estate, Shopping,
Sports, Travel, and Women. Absent technical issues or other such
critical obstacles, Microsoft currently anticipates that the Channels
will launch on or about October 1, 1998 ("Launch Date").
1.2. The Portal Site will also feature a Microsoft developed (or licensed)
web-search capability ("Search") utilizing key words as the search
parameter.
*** Confidential Portions of this document have redacted and have been
separately filed with the Commission.
-13-
1.3. The Home Page will also feature a text-based advertising space above the
fold ("Home Page Ad Space"). The Home Page further will feature a
section of persistent hypertext links that will be available on every
page of the Portal Site ("Quick Links"). The Quick Links will link to
specific secondary pages such as, by way of example, an online
encyclopedia, yellow page-style business listings, and television
listings.
1.4. The Shopping Channel shall feature persistent sections on its topmost
page above the fold as follows:
1.4.1. a rotating set of graphic buttons consisting of merchants' logos
and providing links to those merchants' sites in a section
labeled "Plaza Merchants";
1.4.2. a section that will feature on a rotating basis specials from
merchants in a section called "Plaza Specials"; and
1.4.3. a section that feature recommendations for gifts based on
seasonal or holiday themes (e.g., back-to-school, Christmas,
Father's Day) that will feature appropriate hypertext links to
merchants' sites.
1.5. The Shopping Channel will have a series of persistent secondary pages
that will group merchants by product category. Each of these secondary
pages will be entitled "Departments." Persistent links to the
Departments will be placed on the Shopping Channel Home Page in a
section entitled "Shopping Categories." The Shopping Channel will
feature a "Book Department" featuring only book-related merchants and
content.
2. ***
2.1. ***
2.2. Microsoft will provide Merchant with a persistent Quick Link labeled
"Buy Books" that will link to the Merchant Site. ***
2.3. ***:
2.3.1. ***
2.3.2. ***
2.3.3. ***
2.3.4. ***
2.4. ***
2.5. ***
2.6. ***
2.7. ***
*** Confidential Portions of this document have redacted and have been
separately filed with the Commission.
-14-
2.8. ***
3. Microsoft's efforts as described above *** of the Merchant Site during the
Term.
4. Except as otherwise set forth in Section 2.6, the term of the rights and
obligations under this Amendment ("Term") shall commence on October 1, 1998
***.
5. In consideration for the above-described rights and obligations set forth
herein, Merchant shall pay to Microsoft the following amounts:
5.1. Guaranteed Fee: As a nonrefundable advance against the Commissions set
forth in Section 5.2, Merchant shall pay *** to Microsoft upon execution
of this Amendment.
5.2. Commission: In addition to the Guaranteed Fee, Merchant shall pay
Microsoft *** of Merchant's Gross Revenue less actual returns and actual
bad debt incurred during the Term. *** All payments of the Fees shall
*** and addressed to Xxxxxxx Xxxxxxxx, c/o Microsoft Corporation, Xxx
Xxxxxxxxx Xxx, Xxxxxxx, XX 00000
5.3. Merchant is responsible for ensuring that all payments are made on a
timely basis, MSP will not invoice Merchant for any amounts owing
pursuant to this Agreement.
6. ***
7. The parties agree to exercise mutual good faith efforts to promote buying
books via the Portal Site.
8. ***
Except as expressly provided herein, the Agreement is not otherwise modified in
any respect, and the same as hereby supplemented and amended is hereby ratified
and confirmed in all respects (including, specifically, Merchant's tracking and
reporting obligations, and the requirement of a "GO BACK" button on the Merchant
Site).
*** Confidential Portions of this document have redacted and have been
separately filed with the Commission.
-15-
WHEREBY, the parties enter into this Amendment as of the later of the two
signature dates below.
MICROSOFT CORPORATION XXXXXXXXXXXXXX.XXX INC
_______________________ _______________________
By (signature) By (signature)
_______________________ _______________________
Name (print) Name (print)
_______________________ _______________________
Title Title
_______________________ _______________________
Date Date
*** Confidential Portions of this document have redacted and have been
separately filed with the Commission.
-16-
