COOPERATIVE MARKETING AND COMMERCE AGREEMENT
MARKETING AGREEMENT
dated as of March 7, 2000
by and between Xxx0Xxxxx.xxx, Inc., with its address at
_________________________________________
("Web4Boats") and Acacia Marine, LLC with its address at 00000 Xxxxxxx Xxxx.,
Xxxxx 000, Xxx Xxxxxxx, XX 00000 ("iiCaptain").
W I T N E S S E T H:
WHEREAS, Web4Boats provides boat listings and other boating related content
and maintains a website, located at the URL "xxx.xxx0xxxxx.xxx";
WHEREAS, iiCaptain is a provider of boating and marine products and services
(the "Products and Services") to members of the public via its website
located at the URL "xxx.xxXxxxxxx.xxx";
WHEREAS, iiCaptain and Web4Boats wish to enter into a strategic alliance
pursuant to which Web4Boats would agree to advertise iiCaptain's website and
products on the Web4Boats website and to market and sell iiCaptain's products
through its website in exchange for a portion of the revenue generated by
such sales.
NOW, THEREFORE, in consideration of the mutual promises contained herein and
other good and valuable consideration, the receipt and sufficiency of which
are acknowledged by the parties, the parties hereto agree as follows:
1. MARKETING AND DISTRIBUTION
1.1. Web4Boats and iiCaptain will cooperate to immediately create and
implement a fully functional transparent link on Web4Boats' website to
iiCaptain pages containing the Products and Services. Such link shall be
prominently displayed on Web4Boats' homepage and shall be in the form of
either the current iiCaptain icon or an icon stating "Marine Store" or
similar wording. Clicking on such icon will serve up the iiCaptain homepage,
framed within the Web4Boats website, and enable Web4Boats website users to
purchase the Products and Services, directly from iiCaptain. Accordingly,
iiCaptain will be responsible for processing the transactions.
1.2. iiCaptain hereby grants to Web4Boats, during the term hereof, the
worldwide, non-exclusive, non-transferable right, subject to the terms and
conditions of this Agreement, to use, solely in connection with the marketing
and promotion of the Products and Services in accordance herewith the trade
names, trademarks, service marks "iiCaptain" and "Acacia Marine," which
license shall terminate immediately upon the termination of this Agreement.
Similarly, Web4Boats hereby grants to iiCaptain, during the term hereof, the
worldwide, non-exclusive, non-transferable right, subject to the terms and
conditions of this Agreement, to use, solely in connection with the marketing
and promotion of the Products and Services in accordance herewith the trade
names, trademarks, service marks "Web4Boats and related marks used by
Web4Boats in association with its business, which license shall terminate
immediately upon the termination of this Agreement
1.3 Web4Boats represents and warrants to iiCaptain that as of March 1,
2000, its website had at least ____________ unique users per month.
2. FEES AND PAYMENT
2.1. Web4Boats will receive a commission on all revenue from sales of
iiCaptain's products or services through Web4Boats' website ("Adjusted Gross
Sales") of five percent (5%) for Retail Customers and two percent (2%) for
Trade Customers. Trade Customers shall mean any customers that are deemed by
iiCaptain to have valid reseller-IDs. Retail Customers shall mean any other
purchaser on the xxXxxxxxx.xxx site. For purposes of this Agreement,
adjusted Gross Sales shall be the total sales of Products and Services after
discounts, returns and/or reductions net of taxes, duties, shipping or other
ancillary costs.
2.2. Within thirty (30) days after the end of each month, iiCaptain will
provide Web4Boats with a written report ("Monthly Report") of the revenues
received from Adjusted Gross Sales by Web4Boats users (the "Agreement
Revenues"). The Monthly Report shall be accompanied by remittance to
Web4Boats of Web4Boats's allocable portion of the Adjusted Gross Sales. If
Web4Boats's allocable portion of the Adjusted Gross Sales is less than $100
in any month, the remittance to Web4Boats will be deferred until the month in
which the total accrued allocable portion of Adjusted Gross Sales is $100 or
greater.
3. TERM AND TERMINATION
3.1. This Agreement shall commence as of March 1, 2000 (the "Commencement
Date") and, subject to the provisions of Section 3.2 below, shall terminate
on the first anniversary of the Commencement Date.
3.2. Either party may terminate this Agreement with 30 days' prior written
notice.
3.3. This Agreement will immediately terminate upon any of the following
events:
(a) the bankruptcy (voluntary or involuntary) of, appointment of a trustee or
receiver for all or a substantial portion of the assets of, assignment for
the benefit of creditors of, or failure generally to pay debts and
obligations when due by, the other party;
(b) the cessation of business or dissolution and winding up of the other
party.
3.4. Termination of this Agreement shall be without prejudice to any other
rights or remedies to which a party hereto may be entitled, and shall not
affect any accrued rights or liabilities of either party. The provisions of
Sections 4, 6 and 7 shall survive any termination of this Agreement. All
licenses granted pursuant to this Agreement shall terminate on the date of
termination of this Agreement.
4. CONFIDENTIALITY
4.1. The parties agree not to divulge to any third party any confidential,
non-public and/or proprietary information belonging to the other party,
including the terms of this Agreement, unless (a) the confidential
information is in or enters the public domain other than by
a breach of the receiving party; or (b) the receiving party obtains the
confidential information lawfully from a third party who is authorized to
disclose the confidential information; or (c) the receiving party is required
to disclose the confidential information by law, regulation or an order
of a court of competent jurisdiction.
5. REPRESENTATIONS AND WARRANTIES
5.1. Web4Boats hereby represents and warrants to iiCaptain as of the date
hereof that:
(a) Web4Boats is a corporation duly organized and validly existing under the
laws of ______________ and has all corporate powers and all material
governmental licenses, authorizations, permits, consents and approvals
required to carry on its business as now
conducted.
(b) The execution, delivery and performance by Web4Boats of this
Agreement are within the corporate powers of Web4Boats and, have been duly
authorized by all necessary corporate action on the part of Web4Boats. This
Agreement constitutes a valid and binding agreement of Web4Boats enforceable
in accordance with its terms.
(c) The execution, delivery and performance by Web4Boats of this
Agreement require no action by or in respect of, or filing with, any
governmental body, agency or official.
(d) The execution, delivery and performance by Web4Boats of this
Agreement do not and will not (i) violate the organizational documents of
Web4Boats, (ii) violate any applicable law, judgment, injunction, order or
decree, or (iii) require any notice or
consent or other action by any person under, constitute a default under, or
give rise to any right of termination, cancellation or acceleration of any
right or obligation of Web4Boats or to a loss
of any benefit to which Web4Boats is entitled under, any agreement or other
instrument binding upon Web4Boats or any license, franchise, permit or other
similar authorization held by Web4Boats.
5.2. iiCaptain hereby represents and warrants to Web4Boats as of the date
hereof that:
(a) iiCaptain is a limited liability company duly organized and validly
existing under the laws of California and has all powers and all material
governmental licenses, authorizations, permits, consents and approvals
required to carry on its business as now conducted.
(b) The execution, delivery and performance by iiCaptain of this Agreement
are within the corporate powers of iiCaptain and, have been duly authorized
by all necessary corporate action on the part of iiCaptain. This Agreement
constitutes a valid and binding agreement of iiCaptain enforceable in
accordance with its terms.
(c) The execution, delivery and performance by iiCaptain of this Agreement
require no action by or in respect of, or filing with, any governmental body,
agency or official.
(d) The execution, delivery and performance by iiCaptain of this Agreement
do not and will not (i) violate the organizational documents of iiCaptain,
(ii) violate any applicable law, judgment, injunction, order or decree, or
(iii) require any notice or consent or
other action by any person under, constitute a default under, or give rise to
any right of termination, cancellation or acceleration of any right or
obligation of iiCaptain or to a loss of any benefit to which iiCaptain is
entitled under, any agreement or other instrument binding upon iiCaptain or
any license, franchise, permit or other similar authorization held by
iiCaptain.
6. LIMITATION OF LIABILITY
6.1. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THERE ARE
NO WARRANTIES, CONDITIONS, GUARANTIES OR REPRESENTATIONS AS TO
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHER
WARRANTIES, CONDITIONS, GUARANTIES OR REPRESENTATIONS, WHETHER
EXPRESS OR IMPLIED, IN LAW OR IN FACT, ORAL OR IN WRITING. EACH PARTY
HEREBY ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY WARRANTY,
CONDITION, GUARANTY OR REPRESENTATION MADE BY THE OTHER EXCEPT AS
SPECIFICALLY SET FORTH IN THIS AGREEMENT.
7. INDEMNIFICATION
7.1. Web4Boats will indemnify and hold iiCaptain, and its affiliates and
their respective officers, directors and employees harmless from and against
any and all damages, liabilities, loses, claims, awards, settlements, and
expenses including reasonable attorney's fees (collectively, "Damages")
resulting from or arising out of (a) any misrepresentation or breach of
representation or warranty of Web4Boats contained herein; (b) any breach of
any covenant or agreement to be performed by Web4Boats hereunder or (c)
operations of Web4Boats Internet sites or any other activities of Web4Boats,
including infringement (or claim thereof) of any other party's intellectual
property rights.
7.2. iiCaptain will indemnify and hold Web4Boats and its affiliates and their
respective officers, directors and employees harmless from and against any
and all Damages resulting from or arising out of (a) any misrepresentation or
breach of representation or warranty of iiCaptain contained herein; or (b)
any breach of any covenant or agreement to be performed by iiCaptain
hereunder.
8. MISCELLANEOUS
8.1. The parties shall perform any and all acts, as well as execute any and
all documents, that may be reasonably necessary to fully carry out the
provisions and intent of this Agreement.
8.2. This Agreement shall be binding upon and run to the benefit of the
parties hereto, their successors, and assigns. Web4Boats shall not assign
this Agreement or its obligations hereunder, directly or by operation of law,
without the prior written consent of iiCaptain.
8.3. Should any provisions or portion of this Agreement be held unenforceable
or invalid for any reason, the remaining provisions and portions of this
Agreement shall be unaffected by such holding.
8.4. This Agreement shall be construed and governed by the internal laws of
the State of California (without giving effect to its conflicts of law
principles).
8.5. This Agreement may be executed in one or more identical counterparts,
each of which shall be deemed an original but all of which together will
constitute one and the same instrument. The facsimile signature of any party
to this Agreement shall have the same effect as if such party had manually
signed this Agreement.
8.6. Any notice or other communication required or permitted hereunder shall
be in writing and shall be delivered personally, telegraphed, telexed, sent
by facsimile transmission or sent by certified, registered or express mail,
postage prepaid. Any such notice shall be deemed given when so delivered
personally, telegraphed, telexed or sent by facsimile transmission or, if
mailed, three days after the date of deposit in the mails, as follows:
(i) If to iiCaptain to:
Acacia Marine, LLC.
00000 Xxxxxxx Xxxx.
Xxxxx 000
Xxx Xxxxxxx, XX 00000
fax: (000) 000-0000
Attn: Xxxxxx Xxxxxx, President
(ii) If to Web4Boats:
_________________________
_________________________
_________________________
_________________________
Attn:
Any party may by notice given in accordance with this Section to the other
parties designate another address or person for receipt of notices hereunder.
8.7. This Agreement may be amended, superseded, canceled, renewed or
extended, and the terms hereof may be waived, only by a written instrument
signed by the parties hereto or, in the case of a waiver, by the party
waiving compliance. No delay on the part of any party in exercising any
right, power or privilege hereunder shall operate as a waiver thereof (nor
shall any waiver on the part of any party of any such right, power or
privilege, nor any single or partial exercise of any such right, power or
privilege). The rights and remedies herein provided are cumulative and are
not exclusive of any rights or remedies that any party may otherwise have at
law or in equity.
8.8. Upon execution of this Agreement, both parties will cooperate in good
faith to draft a joint press release announcing the strategic alliance.
8.9. In the event of any controversy, claim or dispute among the parties
hereto arising out of or relating to this Agreement, or breach hereof, the
prevailing party shall be entitled to recover from the losing party
reasonable attorneys' fees, expenses and costs.
8.10. Any dispute or controversy arising under or in connection with this
Agreement shall be resolved exclusively by arbitration in the City of Los
Angeles, State of California, in accordance with the rules of the American
Arbitration Association then in effect. The parties hereto consent to the
jurisdiction of the courts of the State of California or the United States
District Court for the appropriate District of California, whichever is most
appropriate, for all purposes in connection with said arbitration, and
further consent that any process or notice of motion may be served outside
the State of California by personal service or by registered or certified
mail; provided a reasonable time for appearance is allowed.
8.11. The parties agree that this Memorandum was negotiated at arms-length by
the parties and, therefore, shall be construed in accordance with the plain
meaning of its terms and no provision of this Memorandum be interpreted
against any party as draftor.
8.12. This Agreement constitutes the entire agreement of the parties with
respect to the matters contemplated herein and supersedes any and all prior
understandings or agreements concerning the subject matter hereof.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
dates indicated opposite their signatures below.
ACACIA MARINE LLC
By:_____________________________
Name: Xxxxxx Xxxxxx
Title: President
XXX0XXXXX.XXX, INC.
By:_____________________________
Name:
Title:
SM01:359001 6
SM01:359001
