"NOTE - Certain confidential technical and commercial information has been
redacted from this exhibit in order to preserve the confidentiality of such
information. All of the confidential information which has been redacted is on
file with the Securities and Exchange Commission. Redacted material is
indicated by the symbol, "[**REDACTED**]" where such redacted text would have
appeared in this exhibit."
NETGATEWAY
ELECTRONIC COMMERCE SERVICES AGREEMENT
THIS ELECTRONIC COMMERCE SERVICES AGREEMENT (this "Agreement") is made
effective as of the Acceptance Date set forth in the initial eCommerce
Services Order Form (March 24, 1999) accepted by Netgateway, a Nevada
corporation ("Netgateway") and the subscriber identified below ("Subscriber").
PARTIES:
SUBSCRIBER NAME: CB XXXXXXX XXXXX
ADDRESS: 0000 XXXXX XXXXXX
XXXXX 0000
XXXXXXX XXXXX, XX 00000
PHONE: (000)000-0000
FAX: (000)000-0000
NETGATEWAY, INC.
000 Xxxxxxxxx, Xxxxx 000
Xxxx Xxxxx, XX 00000
Phone: (000)000-0000
Fax: (000)000-0000
1. ELECTRONIC COMMERCE SERVICES.
1.1 eCOMMERCE SERVICES. Subject to the terms and conditions of this
Agreement, during the term of this Agreement, Netgateway will, through the
Netgateway Internet Commerce Center-TM- ("Netgateway ICC") provide to
Subscriber the services described in the eCommerce Services Order Form(s)
(the "eCOMMERCE SERVICES ORDER FORM(S)") accepted by Netgateway, or
substantially similar services if such substantially similar services would
provide Subscriber with substantially similar benefits (the "eCommerce
Services"). All such eCommerce Services Order Forms will be incorporated
herein by this reference as of the Acceptance Date set forth in each such form.
Netgateway and Subscriber have mutually agreed or will mutually agree upon
the detailed final specifications (the "SPECIFICATIONS") for the eCommerce
Services and the development timeline therefor, all of which are or will be
set forth on the attached initial eCommerce Services Order Form, marked
Exhibit "A", and by this reference made a part hereof.
1.2 AVAILABILITY. ECommerce Services will be available to Subscriber for
inquiry and order entry functions twenty-four (24) hours a day, seven (7)
days a week. Netgateway reserves the right upon reasonable notice to
Subscriber to limit or curtail holiday or weekend availability when necessary
for system upgrades, adjustments, maintenance, or other operational
considerations.
1.3 ENHANCEMENTS. General enhancements to existing eCommerce Services
provided hereunder, as well as new features that Netgateway incorporates into
its standard commerce processing system, regardless of whether they are
initiated by Netgateway or developed at the request of Subscriber or other
subscribers, shall be made available to Subscriber at [**REDACTED**]. Any new
features or services that may be developed by Netgateway during the term of
this Agreement that Netgateway intends to offer to subscribers on a limited
or optional basis may, at Netgateway' option, and subject to Subscribers'
acceptance, be made available to Subscriber at [**REDACTED**]. Enhancements
to existing eCommerce Services requested by Subscriber that benefit only
subscriber at the time such enhancements are put into service shall be billed
to Subscriber at [**REDACTED**]. All enhancements to the eCommerce Services,
and any new features or services introduced by Netgateway, shall remain the
exclusive proprietary property of Netgateway.
1.4 TRAINING. [**REDACTED**] Netgateway shall provide such onsite
training and other assistance, as Netgateway deems necessary to assure that
Subscriber's personnel are able to make effective use of the eCommerce
Services. On-site training shall take place at such times and places as are
mutually agreeable to the parties hereto.
1.5 SUBSCRIBER DATA.
(a) SUBSCRIBER DATA. Subscriber will timely supply Netgateway, in a form
acceptable to Netgateway, with all data necessary for Netgateway to perform
the ongoing services to be provided hereunder. It is the sole responsibility
of Subscriber to insure the completeness and accuracy of such data.
(b) CONFIDENTIALITY. Netgateway acknowledges that all records, data,
files and other input material relating to Subscriber are confidential and
shall take reasonable steps to protect the confidentiality of such records,
data, files and other materials. Netgateway will provide reasonable security
safeguards to limit access to Subscriber's files and records to Subscriber
and other authorized parties.
(c) PROTECTION OF SUBSCRIBER FILES. Netgateway will take reasonable steps
to protect against the loss or alteration of Subscriber's files, records and
data retained by Netgateway, but Subscriber recognizes that events beyond the
control of Netgateway may cause such loss or alteration. Netgateway will
maintain backup file(s) containing all the data, files and records related to
Subscriber. Subscriber's file(s), records and data shall, at no cost to
Subscriber, be released to Subscriber on an occurrence that renders
Netgateway unable to perform hereunder, or upon the termination of this
Agreement as provided herein.
(d) OWNERSHIP OF DATA. Netgateway acknowledges that all records, data,
files and other input material relating to Subscriber and its customers are
the exclusive property of the Subscriber.
2. FEES AND BILLING.
2.1 FEES. Subscriber will pay all fees and amounts in accordance with the
eCommerce Service Provider Forms.
2.2 BILLING COMMENCEMENT. Billing for eCommerce Services indicated in the
eCommerce Services Order Forms (including the eCommerce Rate, Fee Per Hit,
Banner Advertising and Click Through Revenue), other than the Initial
Development Fee, shall commence on the "OPERATIONAL DATE" indicated in the
eCommerce Services Order Forms. The Initial Development Fee will be due and
payable upon the full execution of this Agreement. In the event that
Subscriber orders other eCommerce Services in addition to those listed in the
initial eCommerce Services Order Form, billing for such services shall
commence on the date Netgateway first provides such additional eCommerce
Services to Subscriber or as otherwise agreed to by Subscriber and Netgateway
in the applicable eCommerce Services Order Form.
2.3 BILLING AND PAYMENT TERMS. The billing and payment terms are set forth
on the attached Exhibit "B", which by this reference is made a part hereof.
2.4 TAXES, UTILITIES AND EXCLUSIONS. All charges shall be exclusive of any
federal, state or local sales, use, excise, AD VALOREM or personal property
taxes levied, or any fines, forfeitures or penalties assessed in connection
therewith, as a result of this Agreement or the installation or use of
eCommerce Services hereunder. Any such taxes, which may be applicable will be
paid by Subscriber or by Netgateway for Subscriber's account, in which case
Subscriber shall reimburse Netgateway for amounts so paid. Netgateway shall
provide burstible at 1 megabit per second capacity bandwith for Subscriber's
website at no additional charge. Netgateway is not responsible for providing
connectivity to Subscriber's offices.
3. SUBSCRIBER'S OBLIGATIONS.
3.1 COMPLIANCE WITH LAW AND RULES AND REGULATIONS. Subscriber agrees that
Subscriber will comply at all times with all applicable laws and regulations
and Netgateway's general rules and regulations relating to its provision of
eCommerce Services, currently included herein as Section 10, which may be
updated and provided by Netgateway to Subscriber from time to time ("RULES
AND REGULATIONS"). Subscriber acknowledges that Netgateway exercises no
control whatsoever over the content contained in or passing through the
Subscriber's web site or mall ("ECOMMERCE CENTERS"), and that it is the sole
responsibility of Subscriber to ensure that the information it transmits and
receives complies with all applicable laws and regulations.
3.2 ACCESS AND SECURITY. Subscriber will be fully responsible for any
charges, costs, expenses (other than those included in the eCommerce
Services), and third party claims that may result from its use of, or access
to, the Netgateway Internet Commerce Center-TM-, including, but not limited
to, any unauthorized use or any access devices provided by Netgateway
hereunder.
[**REDACTED**]
3.4 INSURANCE.
(a) MINIMUM LEVELS. Subscriber will keep in full force and effect during
the term of this Agreement: (i) comprehensive general liability insurance in
an amount not less than $5 million per occurrence for bodily injury and
property damage; (ii) employer's liability insurance in an amount not less
than $1 million per occurrence; and (iii) workers' compensation insurance in
an amount not less than that required by applicable law. Subscriber also
agrees that it will be solely responsible for ensuring that its agents
(including contractors and subcontractors) maintain, other insurance at
levels no less than those required by applicable law and customary in
Subscriber's industries.
(b) CERTIFICATES OF INSURANCE. Prior to the Operational Date, Subscriber
will furnish Netgateway with certificates of insurance which evidence the
minimum levels of insurance set forth above, and will notify Netgateway in
writing in the event that any such insurance policies are cancelled.
(c) NAMING NETGATEWAY AS AN ADDITIONAL INSURED. Subscriber agrees that
prior to the Operational Date, Subscriber will cause its insurance
provider(s) to name Netgateway as an additional insured and notify Netgateway
in writing of the effective date thereof.
4. CONFIDENTIAL INFORMATION.
4.1 CONFIDENTIAL INFORMATION. Each party acknowledges that it will have
access to certain confidential information of the other party concerning the
other party's business, plans, customers, technology, and products, including
the terms and conditions of this Agreement ("CONFIDENTIAL INFORMATION").
Confidential Information will include, but not be limited to, each party's
propriety software and Customer information. Each party agrees that it will
not use in any way, for its own account or the account of any third party,
except as expressly permitted by this Agreement, nor disclose to any third
party
Revised - NetGateway (1 year) 032399 Page 1
NETGATEWAY CONFIDENTIAL AND PROPRIETARY (rev 2/99)
(except as required by law or to that party's attorneys, accountants and
other advisors as reasonably necessary), any of the other party's
Confidential Information and will take reasonable precautions to protect the
confidentiality of such information.
4.2 EXCEPTIONS. Information will not be deemed Confidential Information
hereunder if such information: (i) is known to the receiving party prior to
receipt from the disclosing party directly or indirectly from a source other
than one having an obligation of confidentiality to the disclosing party;
(ii) becomes known (independently of disclosure by the disclosing party) to
the receiving party directly or indirectly from a source other than one
having an obligation of confidentiality to the disclosing party; (iii)
becomes publicly known or otherwise ceases to be secret or confidential,
except through a breach of this Agreement by the receiving party; or (iv) is
independently developed by the receiving party.
5. REPRESENTATIONS AND WARRANTIES.
5.1 WARRANTIES BY SUBSCRIBER.
(a) SUBSCRIBER'S BUSINESS. Subscriber represents and warrants that:
(i) Subscriber's services, products, materials, data, and
information used by Subscriber in connection with this Agreement as well as
Subscriber's and its permitted customers' and users' use of the eCommerce
Services (collectively, "SUBSCRIBER'S BUSINESS") does not as of the
Operational Date, and will not during the term of this Agreement, operate in
any manner that would violate any applicable law or regulation.
(ii) Subscriber owns or has the right to use all material
contained in the Subscriber's web site, including all text, graphics, sound,
video, programming, scripts, and applets; and
(iii) The use, reproduction, distribution, and transmission of
the web site, or any information or materials contained in it does not (A)
infringe or misappropriate any copyright, patent, trademark, trade secret, or
any other proprietary rights of a third party; or (B) constitute false
advertising, unfair competition, defamation, an invasion of privacy, or
violate a right of publicity.
(b) RULES AND REGULATIONS. Subscriber has read the Rules and
Regulations (Section 10 below) and represents and warrants that Subscriber
and Subscriber's Business are currently in full compliance with the Rules and
Regulations, and will remain so at all times during the term of this
Agreement.
(c) BREACH OF WARRANTIES. In the event of any breach, or reasonably
anticipated breach, of any of the foregoing warranties, in addition to any
other remedies available at law or in equity, Netgateway will have the right
immediately in Netgateway's reasonable discretion, to suspend any related
eCommerce Services if deemed reasonably necessary by Netgateway to prevent
any harm to Netgateway or its business.
5.2 WARRANTIES AND DISCLAIMERS BY NETGATEWAY.
(a) NO OTHER WARRANTY. THE ECOMMERCE SERVICES ARE PROVIDED ON AN "AS
IS" BASIS, AND SUBSCRIBER'S USE OF THE ECOMMERCE SERVICES IS AT ITS OWN RISK.
NETGATEWAY DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS
AND/OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE,
AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
NETGATEWAY DOES NOT WARRANT THAT THE ECOMMERCE SERVICES WILL BE
UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.
(b) DISCLAIMER OF ACTIONS CAUSED BY AND/OR UNDER THE CONTROL OF THIRD
PARTIES. NETGATEWAY DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM
NETGATEWAY'S INTERNET COMMERCE CENTERS AND OTHER PORTIONS OF THE INTERNET.
SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET SERVICES
PROVIDED OR CONTROLLED BY THIRD PARTIES. AT TIMES, ACTIONS OR INACTIONS
CAUSED BY THESE THIRD PARTIES CAN PRODUCE SITUATIONS IN WHICH NETGATEWAY'S
SUBSCRIBERS' CONNECTIONS TO THE INTERNET (OR PORTIONS THEREOF) MAY BE
IMPAIRED OR DISRUPTED. ALTHOUGH NETGATEWAY WILL USE COMMERCIALLY REASONABLE
EFFORTS TO TAKE ACTIONS IT DEEMS APPROPRIATE TO REMEDY AND AVOID SUCH EVENTS,
NETGATEWAY CANNOT GUARANTEE THAT THEY WILL NOT OCCUR. ACCORDINGLY, NETGATEWAY
DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS.
6. LIMITATIONS OF LIABILITY.
6.1 EXCLUSIONS. IN NO EVENT WILL NETGATEWAY BE LIABLE TO SUBSCRIBER,
ANY REPRESENTATIVE, OR ANY THIRD PARTY FOR ANY CLAIMS ARISING OUT OF OR
RELATED TO THIS AGREEMENT, SUBSCRIBER'S BUSINESS OR OTHERWISE, AND ANY LOST
REVENUE, LOST PROFITS, REPLACEMENT GOODS, LOSS OF TECHNOLOGY, RIGHTS OR
SERVICES, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES, LOSS OF
DATA, OR INTERRUPTION OR LOSS OF USE OF SERVICE OR SUBSCRIBER'S BUSINESS,
EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER UNDER THEORY OF
CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.
6.2 LIMITATIONS. NETGATEWAY, ITS AFFILIATES, EMPLOYEES, OFFICERS AND
AGENTS SHALL NOT BE LIABLE TO SUBSCRIBER OR TO ANY THIRD PARTY FOR ANY LOSS
OR DAMAGE, WHETHER DIRECT OR INDIRECT, RESULTING FROM DELAYS OR INTERRUPTIONS
OF SERVICE DUE TO MECHANICAL ELECTRICAL OR WIRE DEFECTS OR DIFFICULTIES,
STORMS, STRIKES, WALK-OUTS, EQUIPMENT OR SYSTEMS FAILURES, OR OTHER CAUSES
OVER WHICH NETGATEWAY, ITS AFFILIATES, EMPLOYEES, OFFICERS, OR AGENTS
AGAINST WHOM LIABILITY IS SOUGHT, HAVE NO REASONABLE CONTROL, OR FOR LOSS OR
DAMAGE, DIRECT OR INDIRECT, RESULTING FROM INACCURACIES, ERRONEOUS STATEMENTS,
ERRORS OF FACTS, OMISSIONS, OR ERRORS IN THE TRANSMISSION OR DELIVERY OF
ECOMMERCE SERVICES, OR ANY DATA PROVIDED AS A PART OF THE ECOMMERCE SERVICES
PURSUANT TO THIS AGREEMENT, EXCEPT TO THE EXTENT CAUSED BY THE GROSS
NEGLIGENCE OR WILLFULL MISCONDUCT OF NETGATEWAY. IN ADDITION, IN NO EVENT
SHALL NETGATEWAY BE LIABLE TO SUBSCRIBER OR TO ANY THIRD PARTY FOR SPECIAL,
INDIRECT, INCIDENTAL, OR CONSEQUENTIAL LOSSES OR DAMAGES WHICH SUBSCRIBER OR
SUCH THIRD PARTY MAY INCUR OR EXPERIENCE ON ACCOUNT OF ENTERING INTO OR
RELYING ON THIS AGREEMENT OR UTILIZING THE NETGATEWAY ECOMMERCE SERVICES,
REGARDLESS OF WHETHER NETGATEWAY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES OR WHETHER SUCH DAMAGES ARE CAUSED, IN WHOLE OR IN PART, BY THE
NEGLIGENCE OF NETGATEWAY.
6.3 MAXIMUM LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS
AGREEMENT, NETGATEWAY'S MAXIMUM AGGREGATE LIABILITY TO SUBSCRIBER RELATED TO
OR IN CONNECTION WITH THIS AGREEMENT WILL BE LIMITED TO THE TOTAL AMOUNT PAID
BY SUBSCRIBER TO NETGATEWAY HEREUNDER FOR THE PERIOD CONSISTING OF THE PRIOR
[**REDACTED**]
6.4 TIME FOR MAKING CLAIMS. ANY SUIT OR ACTION BY SUBSCRIBER AGAINST
NETGATEWAY, ITS AFFILIATES, OFFICERS, DIRECTORS, AGENTS EMPLOYEES, SUCCESSORS
OR ASSIGNS, BASED UPON ANY ACT OR OMISSION ARISING OUT OF OR RELATING TO THIS
AGREEMENT, OR SERVICES PERFORMED HEREUNDER, OR ANY ALLEGED BREACH THEREOF,
SHALL BE COMMENCED WITHIN [**REDACTED**] OF THE FIRST OCCURRENCE GIVING RISE
TO SUCH CLAIM OR BE FOREVER BARRED. THIS PROVISION DOES NOT MODIFY OR
OTHERWISE AFFECT THE LIMITATION OF NETGATEWAY'S LIABILITY SET FORTH IN
SECTION 6 OR ELSEWHERE IN THIS AGREEMENT.
6.5 SUBSCRIBER'S INSURANCE. Subscriber agrees that it will not pursue
any claims against Netgateway for any liability Netgateway may have under or
relating to this Agreement until Subscriber first makes claims against
Subscriber's insurance provider(s) and such insurance provider(s) finally
resolve(s) such claims, provided, however, that this provision shall not
apply to the extent that conflicts with Subscriber's current insurance.
6.6 BASIS OF THE BARGAIN; FAILURE OF ESSENTIAL PURPOSE. Subscriber
acknowledges that Netgateway has set its prices and entered into this
Agreement in reliance upon the limitations of liability and the disclaimers
of warranties and damages set forth herein, and that the same form an
essential basis of the bargain between the parties. The parties agree that
the limitations and exclusions of liability and disclaimers specified in this
Agreement will survive and apply even if found to have failed of their
essential purpose.
7. INDEMNIFICATION.
7.1 NETGATEWAY'S INDEMNIFICATION OF SUBSCRIBER. Netgateway will
indemnify, defend and hold Subscriber harmless from and against any and all
costs, liabilities, losses, and expenses (including, but not limited to,
reasonable attorneys' fees) (collectively, "LOSSES") resulting from any
claim, suit, action, or proceeding (each, an "ACTION") brought against
Subscriber alleging the infringement of any third party registered U.S.
copyright or issued U.S. patent resulting from the provision of eCommerce
Services pursuant to this Agreement (but excluding any infringement
contributorily caused by Subscriber's Business).
7.2 SUBSCRIBER'S INDEMNIFICATION OF NETGATEWAY. Subscriber will
indemnify, defend and hold Netgateway, its affiliates and customers harmless
from and against any and all Losses resulting from or arising out of
Subscriber's breach of any provision of this Agreement or any Action brought
against Netgateway, its directors, employees, affiliates or Subscribers
alleging with respect to the Subscriber's Business: (a) infringement or
misappropriation of any intellectual property rights; (b) defamation, libel,
slander, obscenity, pornography, or violation of the rights of privacy or
publicity; (c) spamming, or any other offensive, harassing or illegal conduct
or violation of the Rules and Regulations; or, (d) any violation of any other
applicable law or regulation, provided, however, that, Subscriber's
indemnification shall not extend to acts by third parties, so long as such
acts are not the result of or allowed by the act or omission of Subscriber.
7.3 NOTICE. Each party will provide the other party, prompt written
notice of the existence of any such event of which it becomes aware, and an
opportunity to participate in the defense thereof.
8. DISPUTE RESOLUTION.
8.1 PROCEDURES. It is the intent of the parties that all disputes
arising under this Agreement be resolved expeditiously, amicably, and at the
level within each party's organization that is most knowledgeable about the
disputed issue. The parties understand and agree that the procedures
outlined in this Paragraph 8 are not intended to supplant the routine
handling of inquiries and complaints through informal contact with customer
service representatives or other designated personnel of the parties.
Accordingly, for purposes of the procedures set forth in this paragraph, a
"dispute" is a disagreement that the parties have been unable to resolve by
the normal and routine channels ordinarily used for such matters. Before any
dispute arising under this Agreement, other than as provided in paragraph 8.5
below, may be submitted to arbitration, the parties shall first follow the
informal and escalating procedures set forth below.
(a) The complaining party's representative will notify the other party's
representative in writing of the dispute, and the non-complaining party will
exercise good faith efforts to resolve the matter as expeditiously as
possible.
(b) In the event that such matter remains unresolved thirty (30) days
after the delivery of the complainant party's written notice, a senior
representative of each party shall meet
Page 2
or confer within ten (10) business days of a request for such a meeting or
conference by either party to resolve such matter.
(c) In the event that the meeting or conference specified in (b) above
does not resolve such matter, the senior officer of each party shall meet or
confer within ten (10) business days of the request for such a meeting or
conference by either party to discuss and agree upon a mutually satisfactory
resolution of such matter.
(d) If the parties are unable to reach a resolution of the dispute
after following the above procedure, or if either party fails to participate
when requested, the parties may proceed in accordance with paragraph 8.2
below.
8.2 BINDING ARBITRATION. Except as provided in paragraph 8.5 below,
any dispute arising under this Agreement shall, after utilizing the
procedures in paragraph 8.1, be resolved by final and biding arbitration in
Los Angeles, California, before a single arbitrator selected by, and in
accordance with the rules of commercial arbitration of, the American
Arbitration Association or as otherwise provided in Paragraph 11.6. Each
party shall bear its own costs in the arbitration, including attorneys' fees,
and each party shall bear one-half of the cost of the arbitrator.
8.3 ARBITRATOR'S AUTHORITY. The arbitrator shall have the authority to
award such damages as are not prohibited by this Agreement and may, in
addition and in a proper case, declare rights and order specific performance,
but only in accordance with the terms of this Agreement.
8.4 ENFORCEMENT OF ARBITRATOR'S AWARD. Any Party may apply to a court
of general jurisdiction to enforce an arbitrator's award, and if enforcement
is ordered, the party against which the order is issued shall pay the costs
and expenses of the other party in obtaining such order, including responsible
attorneys' fees.
8.5 ACCESS TO COURTS. Notwithstanding the provisions of paragraphs 8.1
and 8.2 above, any action by Netgateway to enforce its rights under
Paragraphs 10.3 of this Agreement or to enjoin any infringement of the same
by Subscriber may, at Netgateway election, be commenced in the state of
federal courts of Los Angeles, California, and Subscriber consents to
personal jurisdiction and venue in such courts for such actions.
9. TERM AND TERMINATION.
9.1 TERM. This Agreement will be effective on the date first above
written and will terminate [**REDACTED**] (the "Initial Term") from the date
Subscriber begins processing live data through Netgateway ICC-TM-, unless
earlier terminated according to the provisions of this Section 9. This
Agreement will automatically renew for an additional term of [**REDACTED**]
unless a party hereto elects not to so renew and notifies the other party in
writing of such election by a date, which is [**REDACTED**] prior to the
lapse of the Initial Term.
9.2 TERMINATION. Either party will have the right to terminate this
Agreement if: (i) the other party breaches any material term or condition of
this Agreement and fails to cure such breach within thirty (30) days after
receipt of written notice of the same, except in the case of failure to pay
fees, which must be cured within five (5) days after receipt of written
notice from Netgateway; (ii) the other party becomes the subject of a
voluntary petition in bankruptcy or any voluntary proceeding relating to
insolvency, receivership, liquidation, or composition for the benefit of
creditors; (iii) the other party becomes the subject of an involuntary
petition in bankruptcy or any involuntary proceeding relating to insolvency,
receivership, liquidation, or composition for the benefit of creditors, if
such petition or proceeding is not dismissed within sixty (60) days of
filing; or after the first six (6) months, upon giving sixty (60) days prior
written notice.
[**REDACTED**]
9.4 NO LIABILITY FOR TERMINATION. Neither party will be liable to the
other for any termination or expiration of this Agreement in accordance with
its terms.
9.5 EFFECT OF TERMINATION. Upon the effective date of expiration or
termination of this Agreement: (a) Netgateway will immediately cease
providing the eCommerce Services; (b) any and all payment obligations of
Subscriber under this Agreement will become due immediately; and (c) within
thirty (30) days after such expiration or termination, each party will return
all Confidential Information of the other party in its possession at the time
of expiration or termination and will not make or retain any copies of such
Confidential Information except as required to comply with any applicable
legal or accounting record keeping requirement.
9.6 SURVIVAL. The following provisions will survive any expiration or
termination of the Agreement: Sections 2,3,4,5,6,7,8,9 and 10.
10. USE OF eCOMMERCE SERVICES - RULES AND REGULATIONS.
10.1 PROPRIETARY SYSTEMS. Subscriber acknowledges that the software
systems utilized by Netgateway in the provision of eCommerce Services
hereunder, including all enhancements thereto, and all screens and formats
used in connection therewith are the exclusive proprietary property of
Netgateway, and Subscriber shall not publish, disclose, display, provide
access to or otherwise make available any Netgateway eCommerce software or
products thereof, or any screens, formats, reports or printouts used,
provided, produced or supplied from or in connection therewith, to any person
or entity other than an employee of Subscriber without the prior written
consent of, and on terms acceptable to Netgateway, which consent shall not be
unreasonably withheld; provided, however, that Subscriber may disclose to a
govermental or regulatory agency or to customers of Subscriber any
information expressly prepared and acknowledge in writing by Netgateway as
having been prepared for disclosure to such governmental or regulatory agency
or to such customers. Neither party shall disclose Subscriber's use of
eCommerce Services in any advertising or promotional materials without the
prior written consent to such use, and approval of such materials, by the
other.
10.2 USE OF SERVICES PERSONAL TO SUBSCRIBER. Subscriber agrees that it
will use the services provided hereunder only in connection with its
eCommerce business, and it will not, without the express written permission
of Netgateway, sell, lease, or otherwise provide or make available eCommerce
Services to any third party.
10.3 SURVIVAL OF OBLIGATIONS. The obligations of this paragraph 10
shall survive termination of this Agreement. Subscriber understands that the
unauthorized publication or disclosure of any of Netgateway Software or
copies thereof, or the unauthorized use of eCommerce Service would cause
irreparable harm to Netgateway for which there is no adequate remedy at law.
Subscriber therefore agrees that in the event of such unauthorized disclosure
or use, Netgateway may, at its discretion and at Subscriber's expense,
terminate this Agreement, obtain immediate injunctive relief in a court of
competent jurisdiction, or take such other steps as it deems necessary to
protect its rights. If Netgateway, in its reasonable, good faith judgement,
determines that there is a material risk of such unauthorized disclosure or
use, it may demand immediate assurances, satisfactory to Netgateway, that
there will be no such unauthorized disclosure or use. In the absence of such
assurance, Netgateway may immediately terminate this Agreement and take such
other steps as it deems necessary. The rights of Netgateway hereunder are in
addition to any other remedies provided by law.
11. MISCELLANEOUS PROVISIONS.
11.1 FORCE MAJEURE. Except for the obligation to pay money, neither
party will be liable for any failure or delay in its performance under this
Agreement due to any cause beyond its reasonable control, including act of
war, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage
or dispute, governmental act or failure of the Internet, provided that the
delayed party: (a) gives the other party prompt notice of such cause, and
(b) uses its reasonable commercial efforts to correct promptly such failure
or delay in performance. In the event that Netgateway is unable to complete
the development required for any of the phases contemplated herein due to
reasons set forth in this Section 11.1, Subscriber's payment obligation shall
be suspended, provided, however, that this sentence shall not change the
timing of any payments required for such development.
11.2 NO LEASE. This Agreement is a services agreement and is not
intended to and will not constitute a lease of any real or personal property.
Subscriber acknowledges and agrees that (i) it has been granted only a
license to use Netgateway's ICC and any equipment provided by Netgateway in
accordance with this Agreement, (ii) Subscriber has not been granted any
real property interest in the Netgateway's ICC, and (iii) Subscriber has no
rights as a tenant or otherwise under any real property or landlord/tenant
laws, regulations, or ordinances.
11.3 MARKETING. Subscriber agrees that Netgateway may refer to
Subscriber by trade name and trademark, and may briefly describe Subscriber's
Business, in Netgateway's marketing materials and web site. Subscriber hereby
grants Netgateway a license to use any Subscriber trade names and trademarks
solely in connection with the rights granted to Netgateway pursuant to this
Section 11.3.
11.4 GOVERNMENT REGULATIONS. Subscriber will not export, re-export,
transfer, or make available, whether directly or indirectly, any regulated
item or information to anyone outside the U.S. in connection with this
Agreement without first complying with all export control laws and
regulations which may be imposed by the U.S. Government and any country or
organization of nations within whose jurisdiction Subscriber operates or does
business.
11.5 NON-SOLICITATION. During the period beginning on the Operational
Data and ending on the [**REDACTED**] of the termination or expiration of
this Agreement in accordance with its terms, Subscriber agrees that it will
not, and will ensure that its affiliates do not, directly or indirectly,
solicit or attempt to solicit for employment any persons employed by
Netgateway during such period.
11.6 GOVERNING LAW; DISPUTE RESOLUTION, SEVERABILITY; WAIVER. This
Agreement is made under and will be governed by and construed in accordance
with the laws of the State of California (without regard to that body of law
controlling conflicts of law) and specifically excluding from application to
this Agreement that law known as the United Nations Convention on the
International Sales of Goods. Any dispute relating to the terms,
interpretation or performance of this Agreement (other than claims for
preliminary injunctive relief or other pre-judgment remedies) will be
resolved at the request of either party through binding arbitration.
Arbitration will be conducted in Los Angeles County, California, under the
rules and procedures of the Judicial Arbitration and Mediation Society
("JAMS"). The parties will request that JAMS appoint a single arbitrator
possessing knowledge of online services agreements; however the arbitration
will proceed even it such a person is unavailable. In the event any provision
of this Agreement is held by a tribunal of competent jurisdiction to be
contrary to the law, the remaining provisions of this Agreement will remain
in full force and effect. The waiver of any breach or default of this
Agreement will not constitute a waiver of any subsequent breach or default,
and will not act to amend or negate the rights of the waiving party.
11.7 ASSIGNMENT; NOTICES. Subscriber may not assign its rights or
delegate its duties under this Agreement either in whole or in part without
the prior written consent of Netgateway, except that Subscriber may assign
this Agreement in whole as part of a corporate reorganization, consolidation,
merger, or sale of substantially all of its assests. Any attempted
assignment or delegation without such consent will be void. Netgateway may
assign this Agreement in whole or part. This Agreement will bind and inure
to the
Revised - NetGateway (1year) 032399
NETGATEWAY CONFIDENTIAL AND PROPRIETARY (rev 2/99)
Page 3
benefit of each party's successors and permitted assigns. Any notice or
communication required or permitted to be given hereunder may be delivered by
hand, deposited with an overnight courier, sent by confirmed facsimile, or
mailed by registered or certified mail, return receipt requested, postage
prepaid, in each case to the address of the receiving party indicated on the
signature page hereof, or at such other address as may hereafter be furnished
in writing by either party hereto to the other. Such notice will be deemed to
have been given as of the date it is delivered, mailed or sent, whichever is
earlier.
11.8 RELATIONSHIP OF PARTIES. Netgateway and Subscriber are
independent contractors and this Agreement will not establish any relationship
of partnership, joint venture, employment, franchise or agency between
Netgateway and Subscriber. Neither Netgateway nor Subscriber will have the
power to bind the other or incur obligations on the other's behalf without
the other's prior written consent, except as otherwise expressly provided
herein.
11.9 ENTIRE AGREEMENT; COUNTERPARTS. This Agreement, including all
documents incorporated herein by reference, constitutes the complete and
exclusive agreement between the parties with respect to the subject matter
hereof, and supersedes and replaces any and all prior or contemporaneous
discussions, negotiations, understandings and agreements, written and oral,
regarding such subject matter. This Agreement may be executed in two or
more counterparts, each of which will be deemed an original, but all of which
together shall constitute one and the same instrument.
Subscriber's and Netgateway's authorized representatives have read the
foregoing and all documents incorporated therein and agree and accept such
terms effective as of the date first above written.
SUBSCRIBER
Signature: /s/ Xxxxx X. Xxxxxxx Signature: /s/ Xxxxx X. Xxxxxxx
--------------------- ----------------------
Print Name: Xxxxx X. Xxxxxxx Print Name: Xxxxx X. Xxxxxxx
--------------------- ----------------------
Title: Sr. Managing Director
---------------------
NETGATEWAY
Signature: /s/ Xxxxx X. Xxxxxxxxx Signature: /s/ Xxxxx X. Xxxxxxxxx
---------------------- ----------------------
Print Name: Xxxxx X. Xxxxxxxxx Print Name: Xxxxx X. Xxxxxxxxx
---------------------- ----------------------
Title: CEO
----------------------
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EXHIBIT "A"
SPECIFICATIONS AND TIME LINE
See attached initial eCommerce Services Order Form.
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EXHIBIT "B"
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APPENDIX A - DESCRIPTION OF WORK PHASES 1 & 2
MARCH 24, 1999
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NETGATEWAY
ECOMMERCE SERVICES ORDER FORM
SUBSCRIBER NAME: CB XXXXXXX XXXXX
FORM DATE: MARCH 24, 1999
FORM NO.: 001
GENERAL INFORMATION:
1. By submitting this eCommerce Services Order Form ("Form") to
Netgateway, Subscriber hereby places an order for the eCommerce
Services described herein pursuant to the terms and conditions of the
Internet Data Center Services Agreement between Subscriber and
Netgateway (the "ECS AGREEMENT").
2. Billing, with the exception of Development Fees, will commence on the
Operational Date set forth below or the date that Subscriber first
begins to process transactions through the Netgateway Internet Commerce
Center, whichever occurs first.
3. Netgateway will provide the eCommerce Services pursuant to the terms and
conditions of the ECS Agreement, which incorporates this Form. The
terms of this Form supersede, and by accepting this Form Netgateway
hereby rejects, any conflicting or additional terms provided by
Subscriber in connection with Netgateway's provision of the eCommerce
Services. If there is a conflict between this Form and any other Form
provided by Customer and accepted by Exodus, the Form with the latest
date will control.
4. Netgateway will not be bound by or required to provide eCommerce
Services pursuant to this Form or the ECS Agreement until each is
signed by an authorized representative of Netgateway.
SUBSCRIBER HAS READ, UNDERSTANDS AND HEREBY SUBMITS THIS ORDER.
Submitted By: /s/ Xxxxx X. Xxxxxxx Operational Date: June 1, 1999
------------------------
(AUTHORIZED SIGNATURE)
Print Name: Xxxxx X. Xxxxxxx
------------------------
Title: SR Managing Director
------------------------
NETGATEWAY ACCEPTANCE
/s/ Xxxxx X. Xxxxxxxxx Date: 3/24/99
---------------------------------- -------------------------------
(AUTHORIZED SIGNATURE: Xxxxx X. Xxxxxxxxx
NETGATEWAY
ECOMMERCE SERVICES ORDER FORM
SUBSCRIBER NAME: CB XXXXXXX XXXXX
FORM DATE: MARCH 24, 1999
FORM NO.: 001
TERMS:
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