EXHIBIT 10.19
THIRD
AMENDMENT
TO THE
AGREEMENT
This amendment (the "Third Amendment") is made and entered into as of the 1st
day of December, 2002 ("Effective Date") by and between Navisite, Inc. a
Delaware corporation with offices at 000 Xxxxxxxxx Xxxx, Xxxxxxx, XX 00000
("Navisite") and FairMarket, Inc. a Delaware corporation with offices at 000
Xxxxxxx Xxxx Xxxxx, Xxxxxx, XX 00000 ("Client") and amends that certain
SITEHARBOR SERVICES AGREEMENT (EM) entered into by the parties as of November 1,
2001 including any sales orders, work orders and/or schedules attached thereto
or which are a part thereof between the parties as well as the AMENDMENT TO
SITEHARBOR SERVICES AGREEMENT (EM) ( the "Amendment") entered into by the
parties as of November 1, 2001 and the SECOND AMENDMENT TO THE AGREEMENT (the
"Second Amendment") entered into by the parties as of March 15, 2002
(collectively the "Agreement"). Any terms defined in the Agreement shall have
the same meaning in this Third Amendment as in the Agreement. In the event that
any provision of this Third Amendment and any provision of the Agreement are
inconsistent or conflicting, the inconsistent or conflicting provisions of this
Third Amendment shall be and constitute an amendment of the Agreement and shall
control, but only to the extent that such provision is inconsistent with the
Agreement.
NOW THEREFORE, and in consideration of the mutual agreements and covenants
hereinafter set forth, the parties wish to amend the Agreement as follows:
1. Attached to this Third Amendment and made a part hereof is Sales Order
#Q-NE-QF8A-RLH-03003 which shall be effective as of December 1, 2002 and shall
supercede any outstanding Sales Orders and/or Schedule B's prior hereto.
2. The term of the Agreement, including this Third Amendment, shall be renewed
for a renewal term of six months beginning on December 1, 2002 and shall expire
on May 31, 2003; provided however, unless Client provides NaviSite with notice
of non-renewal on or before May 1, 2003, the Agreement, including this Third
Amendment, shall automatically renew for an additional six-month term on the
same terms and conditions and shall expire on November 30, 2003. NaviSite shall
provide Client with a proposal to renew the SiteHarbor Services Agreement,
including but not limited to pricing terms, on or before September 30, 2003. The
auto-renewal provisions set forth in Section 13.1 of the Agreement shall not
apply to these two six-month terms of the Agreement.
3. The sixth (6th) bullet point of Section 5 in the Amendment and Section 4 of
the Second Amendment shall be deleted, restoring Section 6.3 of the base
SITEHARBOR SERVICES AGREEMENT (EM) to its original language. For avoidance of
doubt, if Client should cancel the Agreement during the first six-month term,
Client shall be obligated to pay fees only for the remaining portion of that
six-month term (through May 31, 2003); Client shall not be obligated to pay fees
for the renewal six-month period from June 1, 2003-November 30, 2003.
4. Counterparts. This Amendment may be signed in counterparts, including but not
limited to via facsimile, each of which shall be deemed to be an original, but
all of which shall constitute the same instrument.
In Witness Whereof, and intending to be legally bound, the parties hereto have
caused this Amendment to be executed by their duly authorized representatives.
Except as provided in this Third Amendment, all of the terms and conditions of
the Agreement shall remain in full force and effect.
Navisite, Inc. FairMarket, Inc.
Authorized Authorized
Signature: /s/ Xxxxx X. Xx Signature: /s/ Xxxxx Xxxxx
----------------------- ------------------------
Name: Xxxxx X. Xx Name: Xxxxx Xxxxx
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Title: CFO Title: CFO
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Date: 11/14/02 Date: 11/14/02
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