Exhibit 10.5
Confidential Treatment has been requested with respect to portions of the
agreement indicated with an asterisk [*]. A complete copy of this agreement,
including the redacted terms, has been separately filed with the Securities and
Exchange Commission.
FIRST AMENDMENT TO E-COMMERCE AGREEMENT
This First Amendment (the "Amendment") to the E-Commerce Agreement (the
"Agreement"), dated as of August 10, 2001, by and between Global Sports
Interactive, Inc. ("GSI"), Xxxxxxxxx.xxx, LLC (the "Company") and Kmart
Corporation ("Kmart") is made as of December 14, 2001. All capitalized terms not
specifically defined herein shall have the meaning ascribed to them pursuant to
the Agreement.
RECITALS
WHEREAS, GSI, the Company and Kmart entered into the Agreement pursuant to
which GSI operates the Company Site; and
WHEREAS, GSI, the Company and Kmart desire to enter into this Amendment to
the Agreement.
NOW, THEREFORE, intending to be legally bound, and in consideration of the
mutual obligations contained herein and in the Agreement, the Parties agree as
follows:
1. Amendments.
1.1 Section 1 of the Agreement is hereby amended by adding a new Section
1.15 entitled "Drop Ship Merchandise" and by renumbering the remaining
definitions within such Section 1. Such new Section 1.15 reads as follows:
"1.15 "Drop Ship Merchandise" means Merchandise, other than Sporting Goods
Merchandise, provided through drop ship vendors pursuant to arrangements between
such vendors and GSI, for the purpose of fulfilling Orders hereunder."
1.2 All references to "Sporting Goods Merchandise" in Sections 1.28, 3.1,
3.8 and 4.3 of the Agreement, shall be deemed to include "Sporting Goods
Merchandise and Drop Ship Merchandise".
1.3 Section 3.5 of the Agreement is hereby amended and restated in its
entirety to read as follows:
"3.5 Drop Ship Merchandise. From time to time during the Term, GSI may
enter into appropriate drop ship arrangements with vendors which provide
for such
vendors to provide fulfillment services for Drop Ship Merchandise to be
offered for sale through the Company Site. Unless otherwise agreed upon by
the Parties, all Orders for Drop Ship Merchandise shall be fulfilled
pursuant to such drop ship arrangements. The Company will pay to GSI for
each unit of Drop Ship Merchandise sold through the Company Site an amount
equal to [*]." GSI agrees that such drop ship vendors will be required to
agree to comply with applicable GSI [*] service levels.
1.4 Section 7.4(ii)(A) of the Agreement is hereby amended adding the
words "to the Company" after the words "the aggregate cost of goods" and by
deleting the words "on behalf of the Company" in the second parenthetical.
2. Miscellaneous.
2.1 Except as specifically amended herein, the Agreement shall remain in
full force and effect in accordance with its terms.
2.2 This Amendment may be executed in one or more counterparts, each of
which shall be deemed an original and all of which shall constitute one
agreement.
2.3 Either Party may terminate this Amendment, for any reason or for no
reason, by providing the other Party with no less than ninety (90) days prior
written notice. Beginning on the effective date of any termination of this
Amendment and continuing through the remaining term of the Agreement, the terms
and conditions of the original Agreement, as may otherwise be amended from time
to time, shall remain in full force and effect without further reference to this
Amendment. Upon termination of this agreement all Company drop ship agreements
will be assigned from GSI to Company to the extent GSI is legally permitted to
do so.
2.4 Company will receive reasonable operational reporting for all drop ship
merchandise. This reporting at a minimum will include [*]. Reporting will be
provided as reasonably requested by Company.
2.5 This Amendment shall be governed in all respects by Michigan law
without regard to choice of law rules.
(*************)
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IN WITNESS WHEREOF, intending to be legally bound, each of the parties have
caused their duly authorized representatives to enter into this Agreement on the
date first written above.
Global Sports Interactive, Inc. Xxxxxxxxx.xxx, LLC
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxxx Xxxxxx
--------------------------------------- -------------------------
Name: Xxxxxxx X. Xxxxx Name: Xxxxxxx Xxxxxx
Title: President, Chairman and Title: Chief Executive Officer
Chief Executive Officer
Kmart Corporation
By: /s/ Xxxxx X. Xxxxx
-------------------------------
Name: Xxxxx X. Xxxxx
Title: Executive Vice President
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