Exhibit 10.90
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 1, 2000) accepted by Netgateway, a Nevada corporation
("NETGATEWAY"), and the subscriber identified below ("SUBSCRIBER").
PARTIES:
SUBSCRIBER NAME: GALAXY ENTERPRISES, INC.
ADDRESS: 000 XXXX XXXXXXXXXX XXXXXX
XXXX, XX 00000
TELEPHONE: (000) 000-0000
FACSIMILE: (000) 000-0000
NETGATEWAY
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 as determined in good faith by Subscriber (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 no additional cost. 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 Netgateway's then-current prices
for such new features or services. 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 Netgateway's
standard rates for programming. 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. At no cost to Subscriber, Netgateway shall provide such
onsite training and other assistance, as Netgateway and Subscriber mutually deem
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, which data, files and records shall be backed up on a daily basis.
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 Services Order 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 in accordance with the terms of the eCommerce Services Order Form. 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. Netgateway shall invoice Subscriber monthly
in advance of the provision of Internet Commerce Services, and payment of such
fees will be due within thirty (30) days of the date of each Netgateway invoice.
All payments will be made in U.S. dollars. Late payments hereunder will accrue
interest at a rate of one and one-half percent (1 1/2%) per month, or the
highest rate allowed by applicable law, whichever is lower.
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. Should Subscriber need additional bandwidth, Netgateway
will provide or make arrangements to provide such additional bandwidth and
invoice Subscriber for such excess bandwidth and/or use beyond a 1 megabit per
second burstible line. Netgateway will provide traffic reports to Subscriber
with respect to burstible capacity. 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"); provided, however, that Subscriber will not be bound to those
updated or amended Rules and Regulations unless Subscriber agrees to be so
bound. 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- or the eCommerce Centers, including, but
not limited to, any unauthorized use or any access devices provided by
Netgateway hereunder; provided, however, that Subscriber shall not be
responsible for any of the above charges, costs, expenses or claims resulting
from a third party accessing the Netgateway Internet Commerce Center or the
eCommerce Centers in breach of security mechanisms over which Netgateway has
sole and complete control.
3.3 NO COMPETITIVE SERVICES. Subscriber, to the best of its knowledge,
will not at any time permit any eCommerce Services to be utilized for the
provision of any services that compete with any Netgateway services, without
Netgateway's prior written consent.
3.4 INSURANCE.
(a) MINIMUM LEVELS. Not later than six (6) months after the Acceptance
Date set forth on the eCommerce Services Order Form, Subscriber shall put in
place and shall keep in full force and effect during the remaining term of this
Agreement: (i) comprehensive general liability insurance in an amount not less
than $1 million for the first twelve months of this Agreement and $3 million for
the remaining term of this
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Agreement per occurrence for bodily injury and property damage; and (ii)
workers' compensation insurance in an amount not less than that required by
applicable law.
(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
proprietary 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
(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) To the best of Subscriber's knowledge, 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.
SUBJECT TO SECTION 5.2(C) HEREOF, 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 CENTER 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.
(c) SERVICE LEVEL. Netgateway agrees that, unless otherwise specified in
the applicable eCommerce Services Order Form, the Netgateway ICC and the
eCommerce Centers will be available to Subscriber at least ninety-eight percent
(98%) of the time during the term of this Agreement (the "Minimum
Availability"). Notwithstanding the foregoing, any unavailability due to any of
the following reasons shall not be considered in determining the Minimum
Availability: (i) any upgrade, adjustment or maintenance of either the
Netgateway ICC or the eCommerce Centers or related systems, (ii) any act of war,
act of God or flood, fire, earthquake, embargo, riot, labor dispute,
governmental act or other similar event, (iii) any interruption or impairment of
the Internet or connections thereto and (iv) any third-party act or omission
over which Netgateway does not exercise control.
6. LIMITATIONS OF LIABILITY.
6.1 EXCLUSIONS. IN NO EVENT WILL NETGATEWAY BE LIABLE TO 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 THREE
(3) FULL CALENDAR MONTHS.
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 TWO (2) YEARS 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.
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 trademark 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).
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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 material 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.
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 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 binding 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 a 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 three (3) years ("INITIAL TERM") from the date hereof, unless
earlier terminated according to the provisions of this Section 9. This Agreement
will automatically renew for an additional term of three (3) years unless a
party hereto elects not to so renew and notifies the other party in writing of
such election by a date, which is six (6) months 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; or (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.
9.3 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.
9.4 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 law or order by a
court of competent jurisdiction.
9.5 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 governmental 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.
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, may use an identifiable xxxx of Subscriber and may
briefly describe Subscriber's Business, in Netgateway's marketing materials and
web site, upon prior approval from Subscriber, which approval shall not be
unreasonably withheld. 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.
Page 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 Date
and ending on the first anniversary 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; 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 Sale of Goods. 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 assets. Any attempted assignment or delegation
without such consent will be void. Netgateway may assign this Agreement in whole
or part only upon the prior written consent of Subscriber, which consent shall
not be unreasonably withheld. This Agreement will bind and inure to the 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/ Xxxx X. Xxxxxxx
-----------------------------------------
Print Name: Xxxx X. Xxxxxxx
Title: Chief Executive Officer
NETGATEWAY
Signature: /s/ Xxxxxx X. Xxxxxxx, Xx.
-----------------------------------------
Print Name: Xxxxxx X. Xxxxxxx, Xx.
Title: President
Page 4
EXHIBIT "A"
ECOMMERCE SERVICES ORDER FORM
NETGATEWAY
ECOMMERCE SERVICES ORDER FORM
SUBSCRIBER NAME: GALAXY ENTERPRISES, INC.
FORM DATE: MARCH 1, 2000
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 this Form and the Electronic
Commerce Services Agreement between Subscriber and Netgateway (the "ECS
AGREEMENT").
2. 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 Subscriber and
accepted by Netgateway, the Form with the latest date will control.
3. 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.
TERMS:
1. PROJECT SPECIFICATIONS. A Statement of Work and Project Specifications (the
"Statement of Work") for the eCommerce Services is annexed hereto as
Schedule 1 and incorporated herein by this reference.
2. DEVELOPMENT TIMELINE. Development of the eCommerce Services shall be
completed in accordance with the terms of the Statement of Work.
3. DEVELOPMENT FEES; STORE CONVERSION FEES. The development fees and store
conversion fees for the eCommerce Services shall be as set forth on the
Statement of Work, and shall be payable in accordance with the terms set
forth thereon.
4. ADDITIONAL FEES. Additional fees, including without limitation, transaction
fees, monthly mall hosting fees, monthly store hosting fees, hosting fees
for XxxxxXxxx.xxx shall be as set forth on the Statement of Work, and shall
be paid in accordance with Netgateway's customary trade credit terms.
5. SUBSCRIBER STOREBUILDING ON NETGATEWAY PLATFORM. (a) The parties
contemplate that, during the term of this Agreement, Subscriber shall build
storefronts for the Galaxy Mall using the Netgateway SOL toolset (the
"Licensed Product"). As part of the eCommerce Services provided hereunder,
Netgateway shall make available to Subscriber the Licensed Product. Subject
to the terms and conditions hereof, Netgateway hereby grants to Subscriber
a limited, nonexclusive and nontransferable license to use the Licensed
Product and any documentation used in connection therewith at Subscriber's
website to build storefronts for the Galaxy Mall and to allow Subscriber's
authorized agents to access and use the Licensed Product remotely via
dial-up access. This license transfers to Subscriber neither title nor any
proprietary or intellectual property rights to the Licensed Product,
documentation or any copyrights, patents or trademarks, embodied or used in
connection therewith, except for the rights expressly granted herein.
Netgateway reserves all rights not expressly granted herein. Subscriber
shall pay the per store license fee set forth on the Statement of Work.
(b) Subscriber may not copy, reproduce or have reproduced the Licensed
Product, except for one archival copy. Subscriber shall maintain accurate
and up-to-date records of the location of any copies of the Licensed
Product and, if requested, inform Netgateway in writing of such location.
All copies of the Licensed Product will be subject to all terms and
conditions of this Order Form. Whenever Subscriber is permitted to copy or
reproduce all or any part of the Licensed Product, all titles, trademark
symbols, copyright symbols and legends, and other proprietary markings of
Netgateway or third parties must be reproduced in an identical manner.
(c) Customer agrees that it will not itself, or through any parent,
subsidiary, affiliate, agent or other third party:
(i) sell, lease, license or sublicense the Licensed Product or any
realted documentation;
(ii) resell, wholesale, host or otherwise distribute the Licensed
Product or the services provided thereby to third party providers of
electronic commerce services;
(iii) modify, alter, decompile, disassemble, reverse engineer or
otherwise attempt to discover the source code for the Licensed
Product, in whole or in part;
(iv) write or develop any derivative software or any other software
program based upon the Licensed Product or any Confidential
Information, other than scripts designed to ensure interoperability
with Subscriber's internal applications and Customer-specific
application program interfaces ("APIs") based on Netgateway's APIs; or
(v) provide, disclose, divulge or make available to, or permit use of
the Licensed Product by any third party without Netgateway's prior
written consent other than as specifically permitted by this Order
Form.
(d) Subscriber shall use its best efforts to cause all existing storefront
merchants to enter into and be bound by (i) either Netgateway's standard
merchant terms and conditions and/or comparable terms and conditions
provided by Subscriber and/or (ii) such other agreements as Netgateway and
Subscriber may mutually deem necessary or appropriate. In addition,
Subscriber shall cause all future storefront merchants to enter into and be
bound by Netgateway's standard merchant terms and conditions and/or such
other agreements as Netgateway may deem necessary or appropriate.
6. POST-CONVERSION AGREEMENTS. Upon completion of the rebuilding of the Galaxy
Mall and the conversion of the Subscriber storefronts to the Netgateway ICC
2.0 platform, all as contemplated in the Statement of Work, the parties
shall enter into such other and further agreements as they may deem
necessary to carry out the intent of the parties in the ECS Agreement and
this Form, including without limitation, agreements related to the
operation of the Galaxy Mall and the sharing of revenues generated thereby.
The parties agree that Subscriber shall cause all post-conversion
Subscriber storefront owners to enter into and be bound by Netgateway's
standard merchant terms and conditions and/or such other agreements as
Netgateway and Subscriber may mutually deem necessary or appropriate.
7. PUBLICITY. Neither party shall make any public announcement of this
Agreement or of the relationship they have entered into without the prior
written consent of the other.
SUBSCRIBER HAS READ, UNDERSTANDS AND HEREBY SUBMITS THIS ORDER.
Submitted By: /s/ Xxxxx X. Xxxx Operational Date:
------------------------ ------------------------
(AUTHORIZED SIGNATURE)
Print Name: Xxxxx X. Xxxx
--------------------------
Title: COO
-------------------------------
NETGATEWAY ACCEPTANCE
/s/ Xxxxxx X. Xxxxxxx, Xx. Date: March 1, 2000
--------------------------------- ---------------------------------
(AUTHORIZED SIGNATURE:
