EXHIBIT 10.12
CONFIDENTIAL
DISTRIBUTION AND FULFILLMENT AGREEMENT
THIS DISTRIBUTION AND FULFILLMENT AGREEMENT (the "AGREEMENT") is made as
of _____________, 1999 (the "EFFECTIVE DATE") by and between XXXXXXXXXXXX.XXX, a
California corporation, with its principal place of business at 00000 Xxxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000 (the "SELLER"), and XXXXXX ENTERTAINMENT
INC., a Tennessee corporation, with its principal place of business at Xxx
Xxxxxx Xxxxxxxxx, Xx Xxxxxx, Xxxxxxxxx 00000 (the "DISTRIBUTOR").
1. DEFINITIONS.
1.1 "BACK ORDERED PRODUCTS" means Products that Distributor
does not have in stock in its shipping facilities at the time an Order is
submitted for them.
1.2 "BUSINESS DAY" means a day on which Distributor regularly
conducts business, excluding holidays.
1.3 "CUSTOMER" means a person in the United States, its
territories and protectorates, who orders Products from Seller's online
retail store.
1.4 "DAMAGED PRODUCTS" means Products shipped by Distributor
which are damaged during shipment to Customers to the extent that the
Products cannot be used for their intended purpose. Products damaged
while in the care, custody, or control of the Customer are not Damaged
Products for purposes of this Agreement.
1.5 "DEFECTIVE PRODUCTS" means Products shipped by Distributor
which contain manufactured defects which prevent them from being used for
their intended purpose.
1.6 "EDI" means electronic data interchange for transmitting
data between computers via a value-added network (mailbox service
provider) or via the Internet.
1.7 "ELECTRONIC REPORT" means information provided
electronically.
1.8 "FTP" means file transfer protocol utilized to provide
information necessary for placing orders with Distributor via a
value-added network or the Internet.
1.9 "INSERTS" means custom insertions acceptable to Distributor
which Seller delivers to Distributor at no expense to Distributor and
which Seller requests to be included with Shipments.
1.10 "ORDER" means a Product order placed by Seller in
accordance with this Agreement.
1.11 "PRODUCTS" means Distributor's (or its vendors') products
Seller may purchase pursuant to this Agreement.
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1.12 "SHIPMENT" means a shipment of Product by Distributor in
response to an Order.
1.13 "SHIPPING FACILITIES" means Distributor facilities in the
United States designated from time-to-time by Distributor as
direct-to-consumer distribution facilities.
1.14 "UNMERCHANDISABLE PRODUCTS" means Products shipped by
Distributor which are shopworn, soiled and/or otherwise not in reasonably
acceptable condition for commercial distribution.
2. ELECTRONIC DATA TRANSMISSION. Electronic data transmissions
between Distributor and Seller shall be via EDI or other mutually agreed upon
means of electronic data transmissions. For EDI through a value-added network,
Seller will pay all usual and customary fees related to transmission and
retrieval through Seller's value-added network and any related interconnect
charges to or from Distributor's value-added network. Distributor will furnish
Seller the specifications for FTP and any other mutually agreed upon means of
electronic data transmission (other than EDI). Distributor may change those
specifications from time-to-time on not less than 30 days prior written notice
to Seller.
3. FULFILLMENT SERVICES.
3.1 ORDERS. Seller will transmit, via electronic data
transmission, Orders to Distributor. Each Order shall contain the
following information: (a) the Customer's name and complete shipping
address; (b) the Distributor-approved shipping method to be used; (c) the
text of any special messages to the Customer (messages from the Customer
to a third party recipient are excluded per SECTION 3.9); and (d) the
Products to be shipped and their quantity.
3.2 FULFILLMENT. After receipt of an Order, Distributor will
use reasonable efforts to: (a) fill the Order from Products in stock at
the Shipping Facilities; (b) print all packing slips excluding Inserts;
(c) insert all packing slips and Inserts; (d) print and affix shipping
labels on Shipments; (e) when made available by Distributor, print the
text of any special message reasonably acceptable to Distributor on the
standard packing slip requested by Seller in the Order; (f) ship the
Order to the Customer; (g) order from the vendor any Back Ordered
Products and notify Seller that the Back Ordered Products are backordered
(in which case Seller may, via electronic data transmission to
Distributor, elect to terminate the Order with respect to the Back
Ordered Products or to terminate the Order in total); and (h) if not
terminated as described in CLAUSE (g), ship any Back Ordered Products
following their receipt by Distributor at the Shipping Facilities in
accordance with the terms of this Section. Provided Distributor receives
an Order and the related picking ticket is printed no later than 1:00
p.m., central time, Distributor will use commercially reasonable efforts
to ship the Order that same Business Day. If the Order is received and
the related picking ticket is printed after 1:00 p.m., central time,
Distributor will use commercially reasonable efforts to ship the Order
the following Business Day. If Distributor does not ship an Order as
provided above, Distributor will notify Seller no later than the second
following Business Day, and Seller may without obligation cancel the
Order by notice to Distributor via electronic data transmission. Seller
will also have the right to cancel an Order by notice to Distributor via
electronic
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data transmission at any time prior to the printing or generation of the
pick ticket with respect to that Order. Seller will not be invoiced for
cancelled Orders. Seller will notify Customers of Order cancellations.
3.3 PACKING SLIPS. Packing slips printed and inserted in
Shipments by Distributor will be agreed upon in "look and feel" by
Distributor and Seller, based on Seller's specifications and
Distributor's capability.
3.4 SHIPMENT. Distributor will use commercially reasonable
efforts to ship Products in accordance with the Distributor-approved
shipping methods specified by Seller in the Order. Distributor will use
commercially reasonable efforts to package all Shipments in a manner to
prevent damage during shipment, the "look and feel" of which packaging
will be agreed upon by Distributor and Seller, based on Seller's
specifications and Distributor's capability. Distributor will cooperate
with Seller in tracking any lost shipments and filing any related carrier
claims. Except as specifically set out in this Agreement, all shipping
shall be at the expense of Seller. The risk of loss for Products shall
pass from Distributor when the Products are delivered to the carrier for
shipment to the Customers.
3.5 MASTER DATABASE LICENSE AGREEMENT. This Agreement
incorporates by reference the terms of the Master Database License
Agreement in the form of EXHIBIT A hereto (the "DATABASE LICENSE"). The
Database License describes the Products as of the most recent update of
the Xxxxxx Entertainment Inc. Master Database (the "MASTER DATABASE")
made available to Seller. Distributor makes no representation or
warranty as to the availability of any of the Products, whether or not
included in the Master Database; however, Distributor will not knowingly
misstate its inventory levels in any material manner.
3.6 REPORTS TO SELLER.
(a) Each Business Day, Distributor will furnish Seller
Electronic Reports of the following: (A) all Shipments made that
Business Day by Order number and tracking number (if available),
all Products contained in each Order, and all Back Ordered
Products by order number, and (B) Orders received, but not
shipped, and the status of each such Order; and (C) all Product
returns (identified by Return Authorization Number) processed by
Distributor indicating quantity and item(s) received and other
information in reasonably sufficient detail (I.E. Customer and
invoice number) to allow Seller to properly credit Customers for
such returns.
(b) On a monthly basis, Distributor shall provide a
statement of account which details (i) all invoices sent to Seller
during the prior calendar month; (ii) all payments received from
Seller during the prior calendar month, and other credits made
against Seller's payment obligations; and (iii) all unpaid
invoices.
3.7 LICENSE. Seller hereby grants to Distributor a limited,
nonexclusive, nontransferable license to (a) distribute the Inserts in
connection with the Products, and
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(b) use Seller's trademarks in accordance with
Seller's specifications on Product invoices and other materials
provided to Customers. The use of Seller's trademarks, however, shall
be limited to that which is reasonably necessary to carry out the
purposes of this Agreement. The licenses contemplated by this
paragraph are deemed expired upon termination of this Agreement for any
reason.
3.8 NON-EXCLUSIVE DEALING. Nothing in this Agreement requires
either party to this Agreement to deal exclusively with the other in any
capacity.
3.9 NO THIRD PARTY MESSAGES. Seller understands that
Distributor offers to certain clients the ability to permit customers of
those clients to include with the Order a message from the customer to a
third party recipient of the Products in the Order. Seller further
understands that Distributor does not have the ability to block or
prevent the customers of any particular client (including the Seller)
from offering or from the client or its customers utilizing, that
messaging feature. Seller and Distributor nonetheless agree that Seller
will not have the right to utilize or offer this messaging service to its
Customers, and that any offering of this messaging service by Seller to
Customers or any use of the messaging service by Seller or any Customer
will constitute a breach of this Agreement by Seller and an Event of
Default for purposes of SECTION 8.3. Seller acknowledges that, in any
event, Distributor does not have the capability to screen or review any
such message and agrees that Distributor has no obligation to do so.
4. RETURNS.
4.1 RETURNS GENERALLY. (a) In order for returned Products
(including Defective Products, Unmerchandisable Products, Damaged
Products, and Products erroneously shipped to Customers) to be eligible
for credit pursuant to this Agreement, Seller agrees to the following
procedures:
(i) Seller will furnish each Customer desiring to return
Products a return authorization number of no more than eight
characters, all of which must be alpha numeric; and
(ii) Seller will furnish to Distributor that
authorization number; the Seller's account number; the item
number(s) or UPC number(s) of the Products being returned; the
quantity of each Product being returned; Seller's invoice number
to which the return is to be applied; and the reason for the
Product return (carrier damage, shipped in error, defective,
Customer error, Customer change in preference, etc.).
Within five Business Days of Distributor's receipt of the returned
Products, all returned Products will be logged into Distributor's
inventory, Seller will be issued a credit by Distributor for the lowest
price per unit paid by Seller to Distributor for the returned Products
(excluding freight and handling fees) or, if less, the current market
value of those Products; PROVIDED, HOWEVER, that if Seller furnishes
Distributor the applicable invoice number and the returned Products have
been received by Distributor no more than 60 days after the invoice date,
such credit will be equal to the order or line item amounts for the
returned Products shown on that invoice. In the event of the return by
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Customers of Defective Products, Unmerchandisable Products, Products
shipped erroneously to Customers, and/or Damaged Products, the credit set
out in this paragraph will include the freight costs initially charged to
Seller by Distributor for those Products. The credit set out in this
paragraph will be reduced by any applicable processing fee described in
SECTION 4.2. Distributor will provide Seller with information in
reasonably sufficient detail (I.E. Seller's RA number and invoice number
(if provided by Customer)) to allow Seller to properly credit Customers
for such returns. Credit memos for returns will be processed by
Distributor and delivered to Seller within 15 days after Distributor's
receipt of the returned Product. Credits issued to Seller under any such
credit memos will be applied immediately to payables incurred by Seller.
Seller will reimburse Distributor per normal payment terms set out in
SECTION 5.3 for any freight costs charged to Distributor by the carrier
due to Customer refusal to accept delivery of Products correctly shipped
to the Customer which are then returned by the carrier to Distributor.
Distributor's sole liability for any Defective Products, Unmerchandisable
Products, Products erroneously shipped to Customers, and/or Damaged
Products will be acceptance of their return and issuance of the credit
set out in this paragraph. If Seller desires replacement of any of the
four types of Products described in the preceding sentence, Seller will
initiate a new order for the replacement Products.
(b) Distributor will not be obligated to accept any returns of
Products submitted more than 60 days after shipment of such Products to a
Customer, including returns of Defective Products, Damaged Products,
Unmerchandisable Products and/or erroneously shipped Products.
4.2 PROCESSING FEE. For returns of Products (other than
returns of Defective Products, Unmerchandisable Products, Damaged
Products, or Products erroneously shipped to Customers), Seller will pay
Distributor a processing fee of $0.65 per unit for all units returned.
The processing fee will reduce the amount of any credits provided
pursuant to SECTION 4.1.
4.3 MINT, RESALABLE CONDITION. All Product returned to
Distributor (except for returns of Defective Products, Unmerchandisable
Products, or Damaged Products) must be with the original packaging intact
(including manufacturer's shrink wrap) and otherwise in mint, resalable
condition. No credit will be issued for any returned Product not in
mint, resalable condition with the original packaging intact.
5. PAYMENT.
5.1 PRICES. Product prices to be paid by Seller to Distributor
are set forth on EXHIBIT B. Distributor may change such prices with 30
days' prior written notice.
5.2 FEES. Fees for services provided by Distributor to Seller
are set forth on EXHIBIT C. Distributor may change such fee amounts with
30 days prior written notice.
5.3 PAYMENT TERMS. Distributor will invoice Seller upon
shipment of Product. To the extent Seller establishes a credit line with
Distributor, all invoices shall be due and payable thirty days from
invoice date. Distributor may establish a credit line for Seller based
upon Seller's credit application and submission of financial data per
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Distributor's policies. Seller understands that if a credit line with
Distributor is established, it may be modified from time-to-time based
upon Distributor's credit review and credit policies. Any amounts not
paid when due will be subject to a late charge of 1 1/2% per month (18%
per annum) on the overdue balance (or, if less, the maximum amount
permitted by applicable law).
5.4 ADVERTISING. Distributor will pass through to Seller a
proportionate share of any co-op advertising or market development funds
from vendors applicable to the Products. All advertising must have prior
approval of Distributor and the vendor to qualify for pass through. In
order to qualify for these funds, Seller acknowledges its understanding
that it must provide Distributor and the vendor with acceptable proof of
performance on forms and within the time frames specified by vendor.
Deductions for advertising prior to receipt of credit are prohibited.
6. DISCLAIMER AND INDEMNITY.
6.1 DISCLAIMER. DISTRIBUTOR PROVIDES ALL PRODUCTS, MATERIALS
AND SERVICES TO SELLER AND ITS CUSTOMERS "AS IS," AND DISTRIBUTOR
DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING
WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT,
MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. However, the
foregoing disclaimer does not limit any warranties provided by Product
vendors to either Seller or its Customers. Each party acknowledges that
it has not entered into this Agreement in reliance upon any warranty or
representation except as specifically set forth herein. DISTRIBUTOR HAS
NOT LICENSED OR PROVIDED AND DOES NOT HEREBY LICENSE OR PROVIDE SELLER
THE RIGHT TO USE ANY LOGO, TRADEMARK, OR OTHER INTELLECTUAL PROPERTY OF
DISTRIBUTOR, ANY SUPPLIER OR VENDOR, OR ANY OTHER PARTY.
6.2 INDEMNITY. To the extent Distributor is indemnified,
held harmless, and defended by the applicable supplier of Products to
Distributor, Distributor hereby agrees to indemnify, hold harmless, and
defend Seller from (a) all claims, damages, costs and expenses,
including reasonable attorneys' fees and litigation expenses, arising out
of or as a result of, or from legal proceedings threatened or instituted
against Distributor as a result of, any claims by third persons or
entities that any of the Products (i) in any way violates any existing
law, or infringes upon or misappropriates any copyright, patent,
trademark, trade secret, right of publicity, right of privacy, or other
proprietary rights of any third party, either in whole or in part; (ii)
contains or includes matters which, if published, will be libelous or
defamatory; and (iii) fails to comply with all laws for each country in
which the Product is intended to be delivered; and (b) any claims by any
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person or entity that the person or entity has a right to receive any
royalty or other payment as a result of Seller's sales of the Products
pursuant to this Agreement.
7. LIMITATION OF LIABILITY. NEITHER DISTRIBUTOR NOR SELLER SHALL BE
LIABLE FOR PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OR LOST
PROFITS (INCLUDING DUE TO NEGLIGENCE) ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT, EVEN IF SUCH PARTY HAS NOTICE OF THE POSSIBILITY OF SUCH DAMAGES.
EXCEPT AS PROVIDED IN SECTION 6.2 ABOVE, IN NO EVENT SHALL DISTRIBUTOR BE LIABLE
TO SELLER IN AN AMOUNT EXCEEDING THE AMOUNTS ACTUALLY PAID BY SELLER TO
DISTRIBUTOR HEREUNDER. EXCEPT AS PROVIDED IN SECTION 6.2 ABOVE, THE ONLY
LIABILITY DISTRIBUTOR WILL HAVE WITH RESPECT TO ANY DEFECTIVE PRODUCTS, DAMAGED
PRODUCTS, UNMERCHANDISABLE PRODUCTS, AND/OR PRODUCTS ERRONEOUSLY SHIPPED WILL BE
THE RETURN RIGHTS OF CUSTOMERS AND THE OBLIGATION TO PROVIDE THE CREDITS
DESCRIBED IN THIS AGREEMENT.
8. TERM AND TERMINATION.
8.1 TERM. Unless earlier terminated as specified below, this
Agreement commences on the Effective Date and expires on the first
anniversary of the Effective Date; PROVIDED, HOWEVER, that unless a party
exercises its termination rights provided herein, the term shall be
automatically renewed for successive one year periods.
8.2 TERMINATION FOR CONVENIENCE. Either party may terminate
this Agreement at any time during any renewal term for its convenience
upon 60 days prior written notice to the other.
8.3 EVENT OF DEFAULT. Either party may terminate this
Agreement immediately upon the occurrence of an Event of Default by the
other party. As used herein, an "Event of Default" means the defaulting
party's failure to cure, after receipt of not less than 30 days' prior
written notice from the non-defaulting party, any of the following: (a)
failure of the defaulting party to observe or perform any condition or
obligation imposed on the defaulting party under this Agreement
(including payment obligations); (b) breach of any warranty made by the
defaulting party under this Agreement; or (c) filing of a voluntary
petition in bankruptcy or having an involuntary petition filed against
the defaulting party, or the execution of an assignment for the benefit
of creditors of the defaulting party. The option to terminate this
Agreement shall be in addition to, and not in lieu of, any other remedy
available to the terminating party under this Agreement or at law or
equity, all such remedies being cumulative.
8.4 EFFECT OF TERMINATION. Upon expiration or termination, at
Seller's option, Distributor will either (a) fulfill all pending Orders
in accordance with their terms, in which case all applicable covenants
and licenses under this Agreement shall survive to the limited extent
necessary to fulfill such Orders, or (b) cancel all pending Orders and
immediately refund any payments already made for such pending Orders and
any credits due. Absent election by Seller, Distributor may elect (a) or
(b). Further, the parties will
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promptly reconcile accounts payable and receivable and bring the balance
owed, if any, current. SECTIONS 2, 4, 6, 7, 8.4, 9, 10, 11, and 12 shall
survive termination or expiration.
9. CONFIDENTIALITY. The parties agree, during the term of this
Agreement and for the five year period following its termination or expiration,
to keep strictly confidential and not disclose to any party, other than its
agents, employees, contractors, or advisors, and then only on a need to know
basis after having informed such individuals of the confidential nature of the
information and such party's obligation to protect that confidentiality and not
to disclose such information except as set out herein, the following: (a) any
term or condition of this Agreement or of any transaction entered into pursuant
to it, or (b) any information about the other party or its business, operations,
products, finances, customers, distributors, systems, budgets, or liabilities
obtained in connection with this Agreement or the transactions contemplated by
it. Distributor further agrees that any Customer information provided to
Distributor by Seller for shipping purposes will not be used for solicitation or
any other purpose by Distributor. The Customer lists and other proprietary
information submitted by Seller in the course of fulfilling the terms of this
Agreement shall be kept strictly confidential except as expressly contemplated
by this Agreement, and Distributor shall not use or disseminate Seller's
proprietary customer information without obtaining Seller's express written
consent in advance. The provisions of this Section shall not apply to
information which (w) is already known to the receiving party or is publicly
available at the time of disclosure; (x) becomes publicly available after
disclosure through no act of the receiving party; (y) is disclosed by the
disclosing party without an obligation or reasonable expectation of
confidentiality; or (z) is required by law to be disclosed (after providing the
disclosing party the opportunity to seek a protective order at its expense).
Neither party shall issue any press release or similar publicity statement
concerning this Agreement's existence or terms without both parties' prior
approval.
10. COMPLIANCE WITH LAWS. At its own expense, each party will comply
with all applicable laws and regulations regarding its activities related to
this Agreement. Each party represents and warrants that it has the full legal
right and authority to enter into this Agreement and perform its obligations
hereunder.
11. TAXES. Seller is for all purposes the seller of the Products to
its Customers and shall be responsible for any and all sales and similar taxes
arising from such sales. SELLER SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS
DISTRIBUTOR AND ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS,
EMPLOYEES, AND CONTRACTORS, FROM ANY AND ALL SALES TAX AND OTHER TAX LIABILITY
(INCLUDING ANY OBLIGATION TO COLLECT AND REMIT ANY TAX) ARISING FROM THE SALE OF
PRODUCTS TO CUSTOMERS UNDER THIS AGREEMENT, INCLUDING RELATED INTEREST,
PENALTIES, AND OTHER CHARGES.
12. GENERAL PROVISIONS.
12.1 GOVERNING LAW. This Agreement will be governed and
construed in accordance with the laws of the State of Tennessee without
giving effect to conflict of laws principles.
12.2 SEVERABILITY; HEADINGS. If any provision herein is held to
be invalid or unenforceable for any reason, the remaining provisions will
continue in full force without
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being impaired or invalidated in any way. Headings are for reference
purposes only and in no way define, limit, construe or describe the scope
or extent of such section.
12.3 FORCE MAJEURE. If performance hereunder is prevented,
restricted or interfered with by any action or condition whatsoever
beyond the reasonable control of a party, the party so affected, upon
giving prompt notice to the other party, shall be excused from such
performance to the extent of such prevention, restriction or
interference. Each party shall use commercially reasonable efforts to
mitigate the effect of a force majeure.
12.4 INDEPENDENT CONTRACTORS. The parties are independent
contractors, and no agency, partnership, joint venture, employee-employer
or franchisor-franchisee relationship is intended or created by this
Agreement. Neither party shall make any warranties or representations on
behalf of the other party.
12.5 NOTICE. Except as otherwise specified, any notices
hereunder shall be given to the appropriate party at the address
specified above or at such other address as the party shall specify in
writing. Notice shall be deemed given, upon personal delivery, if sent
by fax, upon confirmation of receipt, if sent by certified or registered
mail, postage prepaid, when sent; or if sent by overnight courier, upon
receipt.
12.6 ENTIRE AGREEMENT; WAIVER. This Agreement sets forth the
entire understanding and agreement of the parties, and supersedes any and
all oral or written agreements or understandings between the parties, as
to the subject matter of this Agreement. Except as otherwise provided
herein, it may be changed only by a writing signed by both parties. The
waiver of a breach of any provision of this Agreement will not operate or
be interpreted as a waiver of any other or subsequent breach.
"SELLER" "DISTRIBUTOR"
XXXXXXXXXXXX.XXX XXXXXX ENTERTAINMENT INC.
By:________________________ By:__________________________
Print Name:________________ Print Name:__________________
Title:_____________________ Title:_______________________
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EXHIBITS
A. Master Database License Agreement
B. Product Pricing
C. Fee
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EXHIBIT A
MASTER DATABASE LICENSE AGREEMENT ("DATABASE LICENSE")
For the set up fee of $5,000 and a monthly fee of $700 for subsequent updates
(so long as such updates are made available in the discretion of Xxxxxx
Entertainment Inc.), Xxxxxx Entertainment Inc. (the "Company") is prepared to
deliver to you the Xxxxxx Entertainment Inc. Master Database, including updates
(collectively the "Material"), subject to the following terms and conditions.
1. WAIVER OF FEES: Provided you use the Company as your primary
supplier of pre-recorded video software, DVD software, and
audiobooks for the one-year period following the date you sign the
agreement to which this Database License is an Exhibit, the
Company will waive the above $5,000 set-up fee and the $700 update
fees. Following that one-year period, the Company will waive the
$700 update fees provided that at all times following that
one-year period you have continued to use the Company as your
primary supplier for above products. In the event you do not use
the Company as your primary supplier of those products during the
initial one-year period of this Database License, you agree
retroactively to pay the Company the above fee which the Company
waived in anticipation of its primary suppler status. If you fail
to use the Company as your primary supplier after the first year,
however, you will not be liable for the above retroactive payment.
Your obligation to use the Company as your primary supplier of the
above products shall be subject to the following exceptions: (a)
products not carried by the Company; (b) purchases of used
products; (c) orders which the Company is unable to fill from
inventory on hand or inventory with an expected delivery date to
the Company of no more than 48 hours from the date of your order;
or (d) orders in excess of the credit limit extended to you by the
Company, provided you are within your credit terms with the
Company at the time of such order.
2. LIMITATION ON USE. You may provide access to the Material
available via kiosks, on-line services including electronic
bulletin systems, and through Internet on-line search and query
systems as appropriate to encourage the resale of products in the
Material. This excludes and prohibits the right to copy,
distribute or sell the Material or portions thereof, apart from
your product(s) that may incorporate the Material (or portions
thereof) as a component thereof. A violation of the preceding
sentence will terminate this Database License at which time you
will agree to return the Material within 10 days of termination
and to purge the Material entirely from your systems where the
Material is stored and/or used.
3. CONFIDENTIAL INFORMATION. As used herein, "Confidential
Information" shall mean the Material and all extracts, analysis,
summaries, reviews, and other items prepared by you which contain
or are derived in any way from the Material.
4. CONFIDENTIALITY OBLIGATION. You agree with respect to the
Material and Confidential Information that you (a) will not use it
for any purpose except that which is expressly contemplated by
this agreement; (b) will not assign or transfer it to any party
(other than a successor to all or substantially all of your
assets); and (c) will not disclose to
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any third party directly or indirectly that it was received from
or is attributable to the Company.
5. NO REPRESENTATION. You acknowledge that, while the Company
believes the Material and Confidential Information to be generally
reliable, none of the Company or its affiliates, employees,
agents, or contractors has made or is hereby making any express or
implied representation or warranty as to the accuracy or
completeness of the Material or Confidential Information. You
further agree that none of them will have any liability to you for
any errors or omissions in or related to it. None of the Company
or any of the above other entities or individuals has any
obligation to inform you of or correct any errors or omissions in
the Material or Confidential Information of which it or they may
have knowledge or become aware.
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EXHIBIT B
VIDEO: Seller will receive Distributor's gross cost plus 8% pricing on all
pre-recorded video software.
DVD: Seller will receive Distributor's gross cost plus 6% pricing on all DVD
software.
AUDIOBOOKS: Seller will receive a discount of 40% off Retail pricing on all
audiobooks.
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EXHIBIT C
SET UP: None
FREIGHT: Manifested freight will be passed through to Seller.
HANDLING FEE: Seller will be charged $ .65 per unit shipped to Customers.
INSERTS: Seller will be charged $0.05 per insertion for standard inserts (such
as small catalogs, single page information/promotion cards, etc.). Non-standard
inserts are priced on a per item basis.
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