EXHIBIT 10.11
JOINT MARKETING AGREEMENT
THIS JOINT MARKETING AGREEMENT ("Agreement") is dated this 10th day of
September, 1999 ("Effective Date") and is by and between Cahners Business
Information, a division of Xxxx Elsevier Inc., a Massachusetts corporation
("Cahners"), and PartMiner, Inc., a New York corporation (the "Company").
WHEREAS, Cahners is publisher of certain online and print publications
which Cahners makes available to customers on a subscription or access basis;
and
WHEREAS, the Company has developed a component sourcing software
application known as PartMiner, and is engaged in building e-commerce
marketplaces; and
WHEREAS, Cahners and the Company desire to create interfaces to each
other's products for marketing purposes, on the terms and subject to the
conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the
covenants and agreements hereinafter set forth, the sufficiency of which is
mutually acknowledged, Cahners and the Company hereby agree as follows:
1. Definitions. When used in this Agreement, the following terms shall have
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the meanings indicated below:
1.1 "Aggregated E-Commerce Web Site" shall mean a web site that is
accessible to the general public (with or without a registration fee)
which aggregates pricing and availability data for electronic
components from multiple distributors for the sale of such electronic
components on or at such web site.
1.2 "Cahners Content" shall mean the Cahners' proprietary content
generally described in Exhibit A to this Agreement, containing
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information regarding electronic components, including any updates of
such content, as the same may be modified from time to time by Cahners
in its sole discretion.
1.3 "Cahners Publications" shall mean the properties (both print and
electronic) owned by Cahners described on Exhibit B attached hereto.
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1.4 "e-inSITE" shall mean the Cahners' online network of web sites and
related publications accessible through the URL xxx.x-xxxxxx.xxx and
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indicated in section 1 of Exhibit B attached hereto.
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1.5 "PartMiner" shall mean the Company's proprietary software application
interface and web site, and any updates, enhancements, derivatives, or
new versions thereof, and any software applications and interfaces
which the
Company acquires, generates, creates or otherwise develops to
facilitate e-commerce for the electronic components market.
1.6 The Cahners Publications, e-inSITE and PartMiner may be collectively
referred to hereinafter as the "Products".
2. Development and Support. Within thirty (30) days of the Effective Date,
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each of the parties will use their commercially best efforts to jointly
develop an implementation plan for establishing the interface between e-
inSITE and PartMiner (the "Plan").
2.1 The Plan will be in the form set forth in the attached Exhibit C, and
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will be expanded to include product release schedules for
functionality, integration strategy, and allocation of resources for
development and support, and milestone dates for completion of, among
other things, the following tasks:
2.1.1 The establishment by the Company of a custom link to e-inSITE
from PartMiner through Cahners' Internet interface. The Company
will, at its sole expense, use commercially reasonable efforts
to develop the software, applications, and interfaces with
respect to PartMiner necessary to link e-inSITE with PartMiner;
provided that, the Company will not be responsible for
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developing the interface with respect to e-inSITE necessary to
allow PartMiner to link with e-inSITE; and
2.1.2 The development by Cahners of an interface with respect to e-
inSITE that will allow PartMiner to link with e-inSITE. Cahners
will, at its sole expense, use commercially reasonable efforts
to develop the software, applications and interfaces needed to
link e-inSITE with PartMiner; provided that, Cahners will not
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be responsible for developing the interface with respect to
PartMiner necessary to allow e-inSITE to link with PartMiner.
2.2 Except as otherwise agreed to by the parties or with respect to links
established under Section 2.1 above (which links will not allow access
to IHS data other than in the same manner that any other registered
user of PartMiner accesses such data), the parties agree that any such
links from the Cahners website to the PartMiner website will be
established in accordance with the following terms and conditions:
2.2.1 Articles from Cahners publications appearing on e-inSITE that
provide product reviews on specific electronic components shall, to
the extent practicable, include in such reviews on e-inSITE a
hyperlink to PartMiner.
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2.2.2 Each web page in which such articles appear will reference a
caption at a location that need not be at such hyperlinks that reads
substantially as follows: "click here to order product or to access
PartMiner for product pricing and availability information, including
technical information provided by IQXpert." The hyperlink will further
identify PartMiner and IQXpert in such a manner as shall be approved
by the Company, such approval not to be unreasonably withheld or
delayed.
2.2.3 An e-inSITE user that has accessed the product review on e-
inSITE may click on the hyperlink and be transported to PartMiner.
2.2.4 The Company will verify whether or not the e-inSITE user
transported from e-inSITE is a registered PartMiner user.
2.2.5 If the e-inSITE user is not a registered PartMiner user,
PartMiner will display a registration page.
2.2.6 After the e-inSITE user completes the registration process or
the Company verifies that the e-inSITE user is a registered PartMiner
user, such user may click on a hyperlink to the page generally
described below in Section 2.2.7, which page will be identical to the
page where any registered PartMiner user conducting a general part
number search from the PartMiner home page would arrive.
2.2.7 Following completion of the registration process or
verification by the Company that the e-inSITE user is a registered
PartMiner user, PartMiner will display a page that allows the user to
click an icon to enter an RFQ for purchase of the reviewed product or
click an icon to view the specific datasheet for the single reviewed
product.
2.2.8 The user will not be permitted to view multiple datasheets.
2.2.9 After the user has entered an RFQ for the reviewed product or
viewed the datasheet for the reviewed product, the user shall be able
to "click" to access other resources on the PartMiner site or
hyperlink back to e-inSITE. Cahners will not incorporate features into
e-inSITE that substantially enhance or are otherwise specific to the
use of PartMiner by e-inSITE users, other than the features described
in this Section 2.2 or established pursuant to Section 2.1 above that
will permit such e-inSITE user that has linked to PartMiner to
purchase the product or view the specific datasheet for the electronic
component reviewed in the article on e-inSITE that contains the link.
2.3 Certain data, including but not limited to product datasheets,
contained on PartMiner is licensed by the Company from Information Handling
Services, Inc. and/or its affiliates ("IHS"). The terms set forth in Section 2.2
above provide the only basis on which Cahners may provide or facilitate access
to any data of IHS. Cahners agrees that
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any advertising, marketing, promotional or other materials, as well as any
references on its website, that refer to the link to any data of IHS will be
subject to the prior written approval of the Company, such approval not to be
unreasonably withheld or delayed.
2.4 Cahners shall use commercially reasonable efforts to provide the
Company with a list of part numbers for all electronic components included in
the product reviews referred to in Section 2.2.1 above, prior to the publication
of such articles. The Company shall have the right to provide IHS on a regular
basis with such list of part numbers for use by IHS in identifying additional
parts for inclusion in its databases.
2.5 To the extent that any approvals of the Company under this Section 2
relate to IHS or any products owned by IHS, the parties acknowledge that the
Company will need to obtain IHS' approval. The Company will use commercially
reasonable efforts to obtain such approvals as promptly as possible.
3. Sales and Marketing.
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3.1 Cahners shall prominently promote and identify the Company as e-
inSITE's e-commerce business partner for electronic components to the
EOEM market in the Cahners Publications. Subject to the agreement of
the parties, Cahners shall have the right to determine the frequency
and placement of such promotional materials. Notwithstanding the
foregoing, such promotion shall include, without limitation, the
following: (i) PartMiner shall be identified on all appropriate e-
inSITE advertisements in which e-inSITE's network partners are
identified; and (ii) an introductory advertisement shall be included
in appropriate e-inSITE publications introducing the Company as a
partner of Cahners, including, without limitation, in EDN, Electronic
Business, ECN and Electronic News. The Company shall prominently
promote and identify Cahners as PartMiner's e-commerce business
partner for electronic components to the EOEM market on PartMiner and
in any advertisements for PartMiner in which its network partners are
identified.
3.2 The Company agrees that Cahners shall be the Company's exclusive
advertising agent to electronic component distributors and
manufacturers for the sale of advertising on PartMiner; provided that,
Cahners meets or exceeds the annual performance targets set forth on
Exhibit D attached hereto. In the event Cahners does not meet or
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exceed the targets set forth on Exhibit D attached hereto, Cahners'
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appointment as advertising agent for PartMiner will become non-
exclusive. Cahners shall be entitled to a representation fee of twenty
percent (20%) of all advertising sold by Cahners on behalf of the
Company. All advertising sold by Cahners on behalf of the Company
shall be subject to the approval of the Company, which approval shall
not be unreasonably withheld or delayed. Cahners shall submit a
monthly invoice for such representation fees to the Company
accompanied by a statement prepared by Cahners identifying
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the advertisements for which the fees are being paid and the
computation of such fees. The Company shall pay such invoices within
thirty (30) days of receipt. The obligation of the Company to pay the
foregoing fees shall survive termination of this Agreement for all
advertisements sold by Cahners during the term of this Agreement.
3.3 The Company shall purchase a minimum of $500,000 in advertising from
Cahners for each twelve (12) month period during the term of this
Agreement commencing on the date of this Agreement ("Ad Minimum").
The Company will consider an increase in this Ad Minimum in the event
that an increase in the Company's aggregated advertising/marketing
budget as of the date of this Agreement is approved by the Board of
Directors during the term of this Agreement. Cahners shall charge the
Company for such advertising at the rates set forth on Exhibit E
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attached hereto.
3.4 The parties shall exchange user information collected from registered
users of PartMiner and e-inSITE, respectively (the "User Information")
(except for users who "opt out" of such lists under a party's privacy
policy or any applicable laws); provided, however, such User
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Information will not include the e-mail addresses of any registered
user of either PartMiner or e-inSITE. The User Information provided to
Cahners will be branded as PartMiner or Company information and will
include aggregated purchasing pattern information, specifically
including aggregated data related to (i) products purchased, (ii) the
top 100 part numbers searched, (iii) page views, and (iv) user
sessions. This User Information will be restricted to the parties and
will not be distributed, disclosed or otherwise provided to any third
party, except that Cahners will be permitted to use this information
to develop editorial content for the Cahners Publications, provided
that, such content does not contain any user-identifying information.
Notwithstanding the foregoing, on a quarterly basis, each party will
allow the other party to send one promotional e-mail to the other
party's complete registered user list (except for users who "opt out"
of such lists under a party's privacy policy or any applicable laws).
Such promotional e-mail shall be subject to the approval of the other
party, which approval shall not be unreasonably withheld or delayed.
3.5 During the term of this Agreement, Cahners will have a right of first
refusal to make a development proposal with respect to any commercial
data products to be developed from information or data of the Company
which are intended to be sold or licensed to third parties. The
parties will negotiate in good faith on a product-by-product basis a
mutually acceptable compensation arrangement with respect to the
development of such commercial data products. If the parties cannot
agree on a mutually acceptable compensation arrangement within sixty
(60) days from commencement of such negotiations, then the Company may
offer the development rights to a third party at a price, which for
purposes of this
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section would include royalty payments, no more favorable than the
price offered to Cahners.
3.6 The Company and Cahners will jointly develop marketing announcements
as follows:
3.6.1 The parties will issue a mutually acceptable joint press
release within fifteen (15) business days of the Effective Date
announcing that they have entered into a joint marketing
agreement, which, among other things, provides for the
integration of certain products of Cahners and the Company; and
3.6.2 Unless otherwise agreed to by the parties, the parties will
issue a joint capability statement within sixty (60) days of
the Effective Date announcing the functionality of the links
between PartMiner and e-inSITE.
3.7 Each of the Company and Cahners will consider (but will not be
obligated to) allowing the other party to participate in its tradeshow
booth in at least three (3) tradeshows per year, including, but not
limited to, the Design Automation Conference, the Wescon Show, and the
Embedded Systems West Show.
3.8 The Parties will work together in good faith to identify and create
new content opportunities (e.g., real-time indices of part demand and
consumption) to be used in the Products with appropriate editorials or
other textual description.
3.9 The Company will be responsible for and shall bear the expense of
producing marketing materials for its use in connection with its
relationship with Cahners. Cahners will select and provide Cahners
materials for inclusion in the Company's marketing material at no cost
to the Company.
3.10 Neither party may disseminate or make available to third parties any
marketing materials, brochures, pamphlets, flyers, users' manuals,
"splash screens," or websites offering any of the other party's
Products (including without limitation materials offering both
parties' Products) without the prior written approval of the other
party. The party which proposes to disseminate or make available any
such material shall give notice of such desire to the other party and
provide copies of the materials such party proposes to disseminate. If
the non-disseminating party fails to respond to the disseminating
party within five (5) business days of receiving such notice and
materials, the non-disseminating party shall be deemed to consent to
such dissemination. Any reproduction of Cahners' or the Company's
trademarks, logos, symbols and other identifying marks must be true
reproductions. Neither party shall remove, make, or permit
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alterations to any labels or identifying markings placed by the other
party on such party's products.
4. Licenses granted.
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4.1 Cahners hereby grants to the Company a limited, nontransferable, non-
exclusive, license to create interfaces to link PartMiner with e-
inSITE:
4.1.1 The Company shall pay Cahners a fee equal to one percent (1%)
of the total consolidated revenue received by the Company and
its affiliates from purchases of electronic components by
customers (i) through PartMiner, or (ii) who have accessed
PartMiner at least three (3) times during the calendar quarter
in which the customer's purchase was made. The Company will use
its best efforts to implement as soon as possible, at the
Company's cost and expense, the procedures and technology
necessary to identify and compute the fees due to Cahners
hereunder.
4.1.2 The Company agrees that it will make the Cahners Content
available only to end-users of PartMiner and will not sell,
license or make available to redistributors, online aggregators
or other third parties all or any portion of the Cahners
Content, e-inSITE or the Cahners Publications, except as
otherwise permitted under this Agreement.
4.1.3 Nothing in this Agreement shall be construed as giving the
Company any license or other rights with respect to e-inSITE,
the Cahners Content or the Cahners Publications, other than
those expressly granted in this Agreement. All rights not
expressly granted to the Company under this Agreement are
expressly reserved by Cahners.
4.2 The Company hereby grants Cahners a limited, nontransferable, non-
exclusive, royalty-free license to create interfaces to link e-inSITE
with PartMiner:
4.2.1 Cahners agrees that it will not sell, license or make available
to third parties all or any portion of PartMiner, except as
otherwise permitted under this Agreement.
4.2.2 Nothing in this Agreement shall be construed as giving Cahners
any license or other rights with respect to PartMiner, other
than those expressly granted in this Agreement. All rights not
expressly granted to Cahners under this Agreement are expressly
reserved by the Company.
5. Restrictions and Responsibilities.
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5.1 Cahners Restrictions. During the term of this Agreement, without the
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prior written approval of the Company, which approval shall not be
unreasonably withheld or delayed, Cahners will not: (i) acquire,
develop or operate, alone or in conjunction with any company or
entity, other than the Company, an Aggregated E-Commerce Web Site the
primary focus of which is directed to the EOEM marketplace, which
marketplace consists primarily of the computer, communications,
industrial, and consumer electronics manufacturing industries
(hereinafter in this Section 5.1 referred to as an "EOEM Aggregated E-
Commerce Web Site"), and/or (ii) acquire, maintain, create, develop or
generate an interface between e-inSITE and any EOEM Aggregated E-
Commerce Web Site other than PartMiner. The foregoing provisions of
this Section 5.1 shall not limit Cahners' ability to acquire any
company, the operations of which would violate the foregoing
provisions; provided that, Cahners shall use commercially reasonable
efforts to cease such operations by merger or other consolidation of
such operations with PartMiner, sale or discontinuance of such
operations as soon as practicable, but in no event later than nine (9)
months following such acquisition.
5.2 Company Restrictions. During the term of this Agreement, without the
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prior written approval of Cahners, which approval shall not be
unreasonably withheld or delayed, the Company will not: (i) create an
interface between its web site(s) and any web site serving as an
editorial content provider or navigational hub for a network of web
sites offering editorial content primarily focusing on the electronics
components market, and /or (ii) create any web site serving as an
editorial content provider or navigational hub for a network of web
sites offering editorial content primarily focusing on the electronic
components market or publish any print periodicals covering such
subject matter; except for such printed promotional and marketing
materials as may be necessary to promote registration or use of
PartMiner. Notwithstanding the foregoing, any interface between
PartMiner and IHS shall not be considered a breach of this Agreement.
5.3 Definition of Interface. For the avoidance of doubt, "interface" does
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not include (A) advertisements placed by the Company or Cahners on
third party web sites which link back to PartMiner (in the case of the
Company), or back to a product of Cahners (in the case of Cahners);
(B) advertisements by a third party on PartMiner or a Cahners web
site, provided any links in connection with such advertisements are
limited to links included within such advertisements and not elsewhere
on the site on which the advertisement appears; (C) hyperlinks
contained in editorial content or on-line directories, listings or
databases; and nothing in this Agreement shall prevent either party
from creating any of the foregoing with any third party.
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5.4 Other Duties and Responsibilities. The parties agree to coordinate
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and take all reasonable precautions (consistent with the precautions
it ordinarily takes to safeguard its own products) to safeguard the
Products from piracy and misuse. Such precautions shall include,
without limitation, password protection devices.
6. Representations and Warranties, Liability Limitation.
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6.1 Each party represents and warrants to the other that it has full power
and authority to enter into this Agreement.
6.2 To its knowledge, the Company represents and warrants that PartMiner
does not infringe or misappropriate any third party's rights,
including intellectual property rights. Notwithstanding the foregoing,
the Company makes no representations or warranties as to the continued
availability or accessibility through PartMiner of any third party
products or services. The Company will defend, indemnify and hold
Cahners, its affiliates and their respective directors, officers,
employees and agents harmless from and against, any and all judgments,
claims, demands, causes of action, costs and expenses (including
reasonable attorney's fees) arising from or related to any claims of
third party infringement in connection with PartMiner, except for
claims related to the availability or accessibility through PartMiner
of any third party products or services.
6.3 To its knowledge, Cahners represents and warrants that e-inSITE does
not infringe or misappropriate any third party's rights, including
intellectual property rights. Cahners will defend, indemnify and hold
the Company, its affiliates and their respective directors, officers,
employees and agents harmless from and against, any and all judgments,
claims, demands, causes of action, costs and expenses (including
reasonable attorney's fees) arising from or related to any claims of
third party infringement related to e-inSITE.
6.4 THE COMPANY UNDERSTANDS AND AGREES THAT, EXCEPT AS EXPRESSLY SET FORTH
IN THIS AGREEMENT, E-INSITE AND THE CAHNERS CONTENT ARE OFFERED "AS
IS," WITHOUT WARRANTIES OF ANY KIND, AND ALL WARRANTIES, WHETHER
EXPRESS OR IMPLIED, ORAL OR WRITTEN, ARE HEREBY DISCLAIMED AND
NEGATED, INCLUDING WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND
MERCHANTABILITY. CAHNERS UNDERSTANDS AND AGREES THAT, EXCEPT AS
EXPRESSLY SET FORTH IN THIS AGREEMENT, PARTMINER IS OFFERED "AS IS,"
WITHOUT WARRANTIES OF ANY KIND, AND ALL WARRANTIES, WHETHER EXPRESS OR
IMPLIED, ORAL OR WRITTEN, ARE
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HEREBY DISCLAIMED AND NEGATED, INCLUDING WARRANTIES OF FITNESS FOR A
PARTICULAR PURPOSE AND MERCHANTABILITY.
6.5 EXCEPT FOR CLAIMS INVOLVING THIRD PARTIES UNDER SECTION 6.2 OR 6.3, IN
NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER OR TO ANY THIRD
PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL
OR LOST PROFIT DAMAGES.
7. Confidentiality and Intellectual Property Ownership.
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7.1 The parties agree to keep strictly confidential any and all
information relating to the other party's products as well as the
business and operations (including customer lists, sales and pricing
schemes) of the other party hereto disclosed to the other party in
connection with the transactions contemplated by this Agreement. The
parties agree that all such confidential information shall remain the
sole and absolute property of the party disclosing the same. During
the term of this Agreement, or any extensions or renewals thereof, the
parties shall not use, disclose, disseminate, publish, reproduce or
otherwise make available such information to any person, firm,
corporation, or other entity, except for the purposes contemplated
hereby. Following expiration or earlier termination of this Agreement,
neither party shall use, disclose, disseminate, publish, reproduce or
otherwise make available such information to any person, firm,
corporation or other entity. The terms of this Section 7.1 shall
survive the termination of this Agreement. Notwithstanding anything in
this Agreement, the confidentiality obligations of this Article 7 are
subject to any applicable legal requirements or court or
administrative order to which a party may be subject.
7.2 The foregoing covenant of confidentiality shall not apply to: (i) any
information in the public domain prior to the date of this Agreement,
(ii) any information that enters the public domain subsequent to the
date of this Agreement through no fault of the recipient thereof;
(iii) any information that was in the possession of the recipient
prior to the disclosure by the other party hereto without violating
the terms of this Agreement; (iv) any information that is obtained
from a third person that, to the knowledge of the recipient, had a
right to disclose such information; (v) any information the recipient
is otherwise permitted to use or disclose under the terms of this
Agreement; and (vi) any information independently developed by the
recipient without violating the terms of this Agreement.
7.3 Nothing in this Agreement shall alter the ownership of or intellectual
property rights in and to: (i) e-inSITE or the Cahners Content,
which shall be and remain the sole and exclusive property of Cahners;
or (ii)
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PartMiner, which shall be and remain the sole and exclusive property
of the Company. All use of the Company's and Cahners' trademarks shall
inure to the benefit of the Company and Cahners, respectively. Any use
of a party's marks or logos will be subject to the approval of such
party, such approval not to be unreasonably withheld or delayed.
7.4 Each party agrees that it will not use the confidential information of
the other party for any purpose other than that authorized by this
Agreement, nor disclose or make available the confidential information
of the other party to third parties. Each party shall not, nor shall
it allow a third party to, decompile, reverse engineer, disassemble,
duplicate or otherwise reduce any code or functionality made available
to it under this Agreement.
7.5 The parties agree that the provisions of this Article 7 are necessary
and reasonable to protect the Company and Cahners in the conduct of
their businesses. Each party acknowledges that damages at law may be
an inadequate remedy for the breach of any of the covenants contained
in this Article 7 and, accordingly, in addition to any other remedies
to which such party would be otherwise entitled, such party shall be
entitled to injunctive relief for any breach or threatened breach by
the other party of any of the provisions contained herein.
1. Term and Termination.
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8.1 This Agreement shall commence on the Effective Date, and shall
continue for an initial term of three (3) years from the sixtieth day
after the Effective Date. Thereafter, this Agreement may be renewed
for successive periods of three (3) years (or such lesser or greater
term as the parties may agree in advance) upon mutual agreement of the
parties.
8.2 This Agreement may also be terminated by notice in accordance with the
following:
8.2.1 by either party hereto, upon the occurrence of a breach by the
other party of the provisions of Section 7.1 hereof;
8.2.2 by either party hereto, upon the occurrence of a material
breach by the other party (other than breaches of Section 7.1
hereof), which breach is not cured within thirty (30) days
after receipt of written notice of the breach from the non-
breaching party; or
8.2.3 by either party hereto, in the event the other party ceases to
function as a going concern, is adjudged a bankrupt or makes an
assignment for the benefit of creditors; or
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8.2.4 by either party in the event the other party transfers or
assigns, directly or indirectly, by operation of law (e.g.,
merger, acquisition) or otherwise, all or a substantial portion
of its assets, which in the case of Cahners includes the sale of
all or substantially all of the assets of e-inSITE, to a
competitor of the non-transferring party (including but not
limited to, the parties listed on Exhibit F attached hereto); or
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8.2.5 by either party in the event the other party undergoes a change
in control reasonably unacceptable to the other party. For
purposes of this Agreement, a "change in control" shall mean a
merger or consolidation in which the applicable party is not the
surviving entity, or a sale of fifty percent (50%) or more of
the assets or capital stock of either party.
8.3 Upon termination of this Agreement for any reason, each party shall disable
and destroy all custom interfaces and links with the other party's product,
and shall immediately return any and all property of the other party.
Notwithstanding the foregoing, the parties shall have 180 days from the
date notice of termination is received by the non-terminating party to
remove any links between PartMiner and e-inSITE.
9. Miscellaneous.
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9.1 Each of the parties hereto agrees to execute instruments and take such
further actions, if any, as may be reasonably requested by the other
party in order to assure such requesting party of the rights and
benefits intended by this Agreement, it being understood that the
expense of any such action shall be borne by the party requesting the
same.
9.2 The relationship between the Company and Cahners established by this
Agreement is solely that of independent contractors. Neither party is
in any way the partner or agent of the other, nor is either party
authorized or empowered to create or assume any obligation of any
kind, implied or express, on behalf of any other party, without the
express prior written consent of such party. The relationship created
by this Agreement is not intended by the parties to constitute the
granting of a franchise to one party by the other, and no federal or
state law, regulation or rule relating to franchise is intended to be
applicable to such relationship or this Agreement.
9.3 This Agreement is the entire agreement between the parties hereto with
respect to the subject matter hereof, and shall supersede any and all
prior written or oral promises or representations. No amendments or
modifications of the terms of this Agreement shall be binding upon a
party unless in writing signed by both parties.
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9.4 Neither the waiver by a party hereto of any breach of or default under
any of the provisions of this Agreement, nor the failure of a party to
enforce any of the provisions of this Agreement or to exercise any
rights hereunder, shall be construed as a waiver of any subsequent
breach, or as a waiver of any such rights or provisions hereunder.
9.5 If any part of this Agreement shall be held to be invalid or
unenforceable under applicable law, such part shall be ineffective to
the extent of such invalidity or unenforceability only, without in any
way affecting the remaining parts of this Agreement.
9.6 This Agreement shall be governed by and construed in accordance with
the laws of the State of New York. Each party irrevocably consents
that any legal action or proceeding against it under, arising out of,
or in any matter relating to this Agreement may only be brought in the
federal and state courts in New York County, State of New York. Each
of the parties hereto, by execution and delivery hereof, expressly and
irrevocably assents and submits to the personal jurisdiction of any of
such courts in any action or proceeding.
9.7 Neither party may assign or transfer this Agreement in whole or in
part without the prior written consent of the other party; provided,
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however, that either party may assign this Agreement to any purchaser
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of all of the stock or assets of the assigning party without the
consent of the non-assigning party, which in the case of Cahners
includes the sale of all or substantially all of the assets of e-
inSITE; provided, that, (i) such purchaser is not, in the non-
assigning party's sole judgment, a competitor of the non-assigning
party, and (ii) such purchaser agrees to be bound by the terms of this
Agreement.
9.8 The headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of
this Agreement.
9.9 Any notices or other communications required or permitted hereunder
must be in writing and shall be deemed given (a) on the third business
day after mailing, if given by certified mail, return receipt
requested, postage prepaid, (b) when sent if given by facsimile with
confirmation, or (c) when personally delivered, addressed as follows,
or to such other address as any party shall designate by notice duly
given hereunder:
If to the Company to: PartMiner, Inc.
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: General Counsel
Facsimile No.: 000-000-0000
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With a copy to: Xxxxx & Xxxxxx LLP
One Chase Xxxxxxxxx Xxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxx, Esq.
Facsimile No.: 000-000-0000
-and-
If to Cahners to: Cahners Business Information
000 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Chief Executive Officer and
Chief Legal Counsel
Facsimile No.: (000) 000-0000
With a copy to: Cahners Business Information
0000 Xxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxx
Facsimile No.: (000) 000-0000
9.10 Any prevention of or delay in either party's performance hereunder
due to labor disputes, acts of God, governmental restrictions, enemy
or hostile governmental action, fire or other casualty or other
causes beyond such party's control shall excuse such party's
performance of its obligations hereunder for a period equal to the
duration of any such prevention or delay. The foregoing provision
shall not apply to and shall not justify a delay in making a
required financial payment to the other party. Notwithstanding
anything in this Agreement, any prevention of or delay in a party's
performance hereunder which continues for ninety (90) days or more,
regardless of the reason, shall entitle the other party to terminate
this agreement without liability to the non-performing party, except
for obligations to make payments under this Agreement which arose
prior to the date of termination.
9.11 The terms, covenants and provisions of this Agreement are binding on
and shall inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
9.12 This Agreement may be executed in counterparts each of which shall
be deemed an original and all of which shall constitute one and the
same agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement to be effective on
the Effective Date.
Cahners Business Information, PartMiner, Inc.
a division of Xxxx Elsevier Inc.
/s/ Xxxxx Xxxxx /s/ Xxxxxx Xxxxxxxxx
By: ___________________________ By: _____________________________________
Xxxxx Xxxxx Xxxxxx Xxxxxxxxx
Name:___________________________ Name: ___________________________________
Chief Operating Officer President & Chief Executive Officer
Title:__________________________ Title: ___________________________________
September 10, 1999 September 10, 1999
Date: __________________________ Date: ___________________________________
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