Exhibit 10.9
Agreement Number:________
INKTOMI MERCHANT AGREEMENT
This MERCHANT AGREEMENT ("Agreement") is effective October 11th, 1998
("Effective Date"), by and between Inktomi Corporation ("Inktomi"), a Delaware
corporation with principal offices at 0000 Xxxxxxx Xxxxxx Xxxx. #000, Xxx Xxxxx,
Xxxxxxxxxx 00000 and the "Merchant" listed below,
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Merchant: FashionMall Contact: Xxx Xxxxxxx
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Address: 000 Xxxxxxx Xxxxxx Phone: 000-000-0000
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Xxx Xxxx, XX 00000 Fax: 000-000-0000
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E-mail: xxx@xxxxxxxxxxx.xxx
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Services and Fee Information
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Term 12 months initial term. Merchant may cancel
participation with fifteen days written notice.
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Store xxx.xxxxxxxxxxx.xxx and xxx.xxxxxxxxxx.xxx
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Fees Transaction Fee: Five percent (5%) of the gross
amount of each
*Completed Transaction.
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*Completed Transaction--Exclusive of taxes, returns, bad debt, shipping and
handling charges.
This Agreement includes the attached Terms and Conditions Addendum, and any duly
executed Additions Schedules. This Agreement contains, among other things,
warranty disclaimers, liability limitations and use limitations. For additional
services, each an executed Additions Schedule in Inktomi's standard form.
Capitalized terms that are not defined in the Agreement refer to the similar
term as set forth on this cover page (the "Cover Page"), or on an applicable
Additions Schedule, respectively. Any different or additional terms of any
related purchase order, confirmation, or similar form, even if signed by the
parties after the Effective Date, shall have no force or effect
FashionMall: Inktomi:
Signed: /s/ Xxx Xxxxxxx Signed: /s/ Xxxxx Xxxxxxxx
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Printed: XXX XXXXXXX Printed: XXXXX XXXXXXXX
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Title: PRESIDENT Title: C.F.O.
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Agreement Number:________
TERMS AND CONDITIONS ADDENDUM
1. Scope of Services. Merchant hereby grants Inktomi a license to copy, modify,
display, perform and electronically distribute information related to Merchant's
online store (the "Store"), products, services and other information
(collectively, "Merchant Information") for the purpose of integrating the Store
with the Inktomi shopping services offered to consumers through the Inktomi Web
Sites ("Inktomi Shopping Services"), and to allow users to access Merchant
Information using the Inktomi Shopping Services or other Inktomi products. The
"Inktomi Web Sites" shall mean, collectively, the world wide web sites operated
or hosted by or on behalf of Inktomi, and any an all successor, companion,
mirror, derivative or related sites, including, without limitation, third party
web sites that provide a link to a Inktomi Web Site and/or provide access to
services offered by on or behalf of Inktomi, pursuant to a Destination Site
Agreement, completion of application information as required by Inktomi,
delivery of the Merchant Information in electronic form to Inktomi, and payment
of the Monthly Fee (as set forth in Section 2(a) below) for the first month of
Inktomi providing the services described in this Section (the "Services"),
Inktomi will include the Merchant Information in the Inktomi Shopping Services.
2. Fees
2(a) For each Store transaction between Merchant and a customer using the
Inktomi Shopping Services (each a "Transaction"), Merchant will pay to Inktomi a
Transaction Fee, as set forth on the Cover Page. Merchant shall provide
accurate, timely accounting of the Transactions and pay Inktomi the Transaction
Fee monthly, within thirty (30) days of receipt of the monthly Inktomi tracking
report.
2(b) Merchant shall keep complete and accurate books and records of all
Transactions. Inktomi shall have the right to examine or appoint an independent
certified public accountant to examine and audit, at the expense of Inktomi,
not more than once a year, during normal business hours, all records and
accounts as may contain information bearing upon the Transactions. If such audit
uncovers a deficiency in accounting of greater than five percent (5%), then
Merchant shall immediately reimburse Inktomi for the costs of such audit.
3. Intellectual Property. Inktomi shall retain all right, title and interest in
and to the Inktomi Shopping Services and any portion thereof, including but not
limited to, copyrights, patents and trademarks ("Inktomi IP"). Merchant shall
retain all right, title and interest in and to the Store and Merchant
Information, including but not limited to, copyrights, patents, and trademarks
("Merchant IP"). Merchant agrees to defend, indemnify, and hold harmless Inktomi
against any claims or actions alleging that the Merchant IP infringes any U.S.
patent or copyright or any third party trademark right and to pay costs and
damages finally awarded in any such suit.
4. Logos. Merchant hereby grants Inktomi the right to establish links from the
Inktomi Web Sites to the Store and to use any trademarks and logos as necessary
to establish such links and to perform the Services, and, subject to Merchants's
consent, in trade shows and press releases; Merchant hereby warrants to Inktomi
that Inktomi's use of such trademarks and logos will not infringe any third
party's rights.
5. Term and Termination. This Agreement shall be effective as of the Effective
Date and shall remain in effect until terminated according to the provisions of
this Section 5. Either party may terminate this Agreement at any time upon
thirty (30) days written notice to the other party. Additionally, Inktomi shall
have the right to either terminate this Agreement or (at its option) suspend the
Services immediately if: (i) Merchant fails to pay any fees in a timely fashion;
or (ii) Merchant breaches any material provision of this Agreement, Section
2(c), 3, and 6 through 9 of this Agreement shall survive termination.
6. Warranty Disclaimer. INKTOMI MAKES NO WARRANTIES TO MERCHANT WITH RESPECT TO
THE INKTOMI SHOPPING SERVICES, THE INKTOMI WEB SITES, THE NUMBER OF TRANSACTIONS
GENERATED BY THE INKTOMI SHOPPING SERVICE OR INKTOMI'S ABILITY TO OFFER OR
FULFILL THE SERVICES, AND HEREBY DISCLAIMS ALL IMPLIED AND EXPRESSED WARRANTIES,
INCLUDING ANY WARRANTIES OF ACCURACY, RELIABILITY, MERCHANTABILITY, FITNESS FOR
A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
7. Confidentiality. Each party agrees that all code, inventions, algorithms,
know-how and ideas and all other business, technical and financial information
they obtain from the other are the confidential property of the disclosing party
("Proprietary Information" of the disclosing party). Except as expressly and
unambiguously allowed herein, the receiving party will hold in confidence and
not use or disclose any Proprietary Information of the disclosing party and
shall similarly bind its employees in writing. The receiving party shall not be
obligated under this Section 7 with respect to information the receiving party
can document: (i) is or has become readily publicly available without
restriction through no fault of the receiving party or its employees or agents;
or (ii) is received without restriction from a third party lawfully in
possession of such information and lawfully empowered to disclose such
information; or (iii) was rightfully in the possession of the receiving party
without restriction prior to its disclosure by the other party.
8. Limitation of Liability. Merchant hereby agrees to indemnify and hold Inktomi
harmless for any claims related to Merchant's sale or offer to sell goods or
services. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, INKTOMI
WILL NOT BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER
ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY
(I) FOR CLAIMS RELATED TO THE AVAILABILITY OR ACCURACY OF THE INKTOMI SHOPPING
SERVICES OR THE SUCCESS OR LEVEL OF SALES RESULTING THEREFROM; (II) FOR ANY
INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS; OR (III) IN ANY CASE, FOR
ANY AMOUNTS IN EXCESS OF THE FEES PAID TO INKTOMI HEREUNDER DURING THE TWELVE
MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.
9. General. Merchant shall not receive any rights under this Agreement except
for those rights expressly and unambiguously set forth herein. Merchant shall
not assign or transfer any rights or obligations under this Agreement without
the prior written approval of Inktomi and any attempt to do so shall be void and
without effect. Inktomi will not be responsible for any delay in the performance
of its obligations hereunder caused by any acts, omissions, or events beyond
Inktomi's control. This Agreement represents the complete agreement and
understanding between Inktomi and Merchant with respect to the subject matter
herein, and supersedes any other written or oral agreement. The terms and
conditions of this Agreement may only be modified in a writing signed by both
parties. The invalidity or uneforceability of any provision of this Agreement
may only be modified in a writing signed by both parties. The invalidity or
unenforceability of any provision of this Agreement shall not affect the
enforceability or validity of any other provision. This Agreement shall be
governed by the laws of the State of California, without regard to conflicts of
laws provisions thereof. The sole jurisdiction and venue for actions related to
the subject matter hereof shall be the California state and U.S. federal courts
having within their jurisdiction the location of Inktomi's principal place of
business. In any action to enforce rights under this Agreement, the prevailing
party shall be entitled to recover costs and attorney's fees.
10. Terms and Conditions. Terms of this contract, including but not limited to
commissions due from merchant, shall be restricted to Inktomi's "Shopping
Service" as it has been explained to merchant, and not to Inktomi's search,
cacheing or other technology. Separately, in the event that merchant has an
existing commission, revenue share or other fee based relationship with any
online vendor which provides distribution or placement of the Inktomi Shopping
Service, the vendor's contract shall supersede Inktomi's and only the vendor
shall be paid a fee with any fees to Inktomi becoming null and void for that
vendor location and duration of contract.
