NOTE: CERTAIN CONFIDENTIAL TECHNICAL AND COMMERCIAL INFORMATION HAS BEEN
REDACTED FROM THIS EXHIBIT. ALL SUCH REDACTED INFORMATION IS ON FILE
WITH THE SEC.
NOTE: ASTERISK OR ASTERISKS [* * * *] INDICATE INFORMATION FOR WHICH
CONFIDENTIAL TREATMENT HAS BEEN SOUGHT
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 ( July 28, 1999) accepted by Netgateway, a Nevada corporation
("Netgateway"), and the subscriber identified below ("Subscriber").
PARTIES:
SUBSCRIBER NAME: X0XXXXXXX.XXX INC.
ADDRESS: 000 XXXX XXXXXX
XXXXXXXXXX, XX 00000
PHONE: (000) 000-0000
FAX: (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 substantailly
similar services if such substantailly similar services would provide Subscriber
with substantially similar benefits (the "eCommerce Services"). All such
eCommerce Services Order Forms will be incorporated herein by this reference as
of the Acceptance Date set forth on 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 eComerce Services Order Form attached hereto as 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 [****]. Any new features
or services that may be developed by Netgateway during the term of this
Agreement which Netgateway intends to offer to subscribers on a limited or
optional basis may, at Netgateway's option, and subject to Subscriber's
acceptance, be made available to Subscriber at [****]. 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. [****], Netgateway shall provide such onsite training and
other assistance, as Netgateway deems necessary to assure that Subscriber's
personnel are able to make effective use of the eCommerce Services. On-site
training shall take place at such times and places as are mutually agreeable to
the parties hereto.
1.5 Subscriber Data.
(a) Subscriber Data. Subscriber will timely supply Netgateway, in a form
acceptable to Netgateway, with all data necessary for Netgateway to perform the
ongoing services to be provided hereunder. It is the sole responsibility of
Subscriber to insure the completeness and accuracy of such data.
(b) Confidentiality. Netgateway acknowledges that all records, data, files
and other input material relating to Subscriber are confidential and shall take
reasonable steps to protect the confidentiality of such records, data, files and
other materials. Netgateway will provide reasonable security safeguards to limit
access to Subscriber's files and records to Subscriber and other authorized
parties.
(c) Protection of Subscriber Files. Netgateway will take reasonable steps to
protect against the loss or alteration of Subscriber's files, records and data
retained by Netgateway, but Subscriber recognizes that events beyond the control
of Netgateway may cause such loss or alteration. Netgateway will maintain backup
file(s) containing all the data, files and records related to Subscriber.
Subscriber's file(s), records and data shall, at no cost to Subscriber, be
released to Subscriber on an occurrence that renders Netgateway unable to
perform hereunder, or upon the termination of this Agreement as provided herein.
(d) Ownership of Data. Netgateway acknowledges that all records, data, files
and other input material relating to Subscriber and its customers are the
exclusive property of the Subscriber.
2. FEES AND BILLING.
2.1 Fees. Subscriber will pay all fees and amounts in accordance with the
eCommerce Service Provider Forms.
2.2 Billing Commencement. The Initial Development Fee shall be due and
payable in accordance with the terms set forth on the eCommerce Services Order
Form. Billing for eCommerce Services indicated in the eCommerce Services Order
Form (including the eCommerce Rate, Fees Per Hit, Banner Advertising Revenue and
Click Through Revenue, as applicable) other than the Initial Development Fee,
shall commence on the "Operational Date" indicated in 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. All amounts due under this Agreement for
eCommerce Services indicated in the eCommerce Services Order Form shall be
payable in accordance with the Billing and Payment Terms set forth on Exhibit
"B" annexed hereto, which by this reference is made a part hereof.
2.4 Taxes, Utilities and Exclusions. All charges shall be exclusive of any
federal, state or local sales, use, excise, ad valorem or personal property
taxes levied, or any fines, forfeitures or penalties assessed in connection
therewith, as a result of this Agreement or the installation or use of the
eCommerce Services provided hereunder. Any such taxes shall 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
shall 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 Laws and Rules and Regulations. Subscriber agrees that
Subscriber will comply at all times with all applicable laws and regulations and
Netgateway's general rules and regulations relating to its provision of
eCommerce Services, currently included herein as Section 10, which may be
updated and provided by Netgateway to Subscriber from time to time ("Rules and
Regulations"). Subscriber acknowledges that Netgateway exercises no control
whatsoever over the content contained in or passing through the Subscriber's web
site, storefront or mall ("ECommerce Centers"), and that it is the sole
responsibility of Subscriber to ensure that the information it transmits and
receives complies with all applicable laws and regulations.
3.2 Access and Security. Subscriber will be fully responsible for any
charges, costs, expenses (other than those included in the eCommerce Services),
and third party claims that may result from its use of, or access to, the
Netgateway Internet Commerce Center(TM), including, but not limited to, any
unauthorized use or any access devices provided by Netgateway hereunder.
NETGATEWAY /X0XXXXXXX.XXX
Electronic Commerce Services Agreement Page 1
3.3 [****]
3.4 Insurance.
(a) Minimum Levels. Within six (6) months of the date of this Agreement (the
last day of such period, the "Insurance Due Date"), Subscriber shall obtain and
keep in full force and effect during the term of this Agreement: (i)
comprehensive general liability insurance in an amount not less than $5 million
per occurrence for bodily injury and property damage; (ii) employer's liability
insurance in an amount not less than $1 million per occurrence; and (iii)
workers' compensation insurance in an amount not less than that required by
applicable law. Subscriber also agrees that it will be solely responsible for
ensuring that its agents (including contractors and subcontractors) maintain,
other insurance at levels no less than those required by applicable law and
customary in Subscriber's industry.
(b) Certificates of Insurance. On or prior to the Insurance Due 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 on or
prior to the Insurance Due 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 on a need to know basis), any of the other party's Confidential
Information and will take reasonable precautions to protect the confidentiality
of such Confidential Information.
4.2 Exceptions. Information will not be deemed Confidential Information
hereunder if such information: (i) is known to the receiving party prior to
receipt from the disclosing party directly or indirectly from a source other
than one having an obligation of confidentiality to the disclosing party; (ii)
becomes known (independently of disclosure by the disclosing party) to the
receiving party directly or indirectly from a source other than one having an
obligation of confidentiality to the disclosing party; (iii) becomes publicly
known or otherwise ceases to be secret or confidential, except through a breach
of this Agreement by the receiving party; or (iv) is independently developed by
the receiving party.
5. REPRESENTATIONS AND WARRANTIES.
5.1 Warranties by Subscriber.
(a) Subscriber's Business. Subscriber represents and warrants that:
(i) Subscriber's services, products, materials, data and information
used by Subscriber in connection with this Agreement as well as Subscriber's and
its permitted customers' and users' use of the eCommerce Services (collectively,
"Subscriber's Business") does not, as of the Operational Date, and will not
during the term of this Agreement, operate in any manner that would violate any
applicable laws or regulations.
(ii) Subscriber owns or has the right to use all material contained in
the Subscriber's web site, including all text, graphics, sound, video,
programming, scripts and applets; and
(iii) The use, reproduction, distribution and transmission of the web
site, or any information or materials contained in it does not: (A) infringe or
misappropriate any copyright, patent, trademark, trade secret or any other
proprietary rights of a third party; or (B) constitute false advertising, unfair
competition, defamation, an invasion of privacy or violate a right of publicity.
(b) Rules and Regulations. Subscriber has read the Rules and Regulations
(Section 10 below) and represents and warrants that Subscriber and Subscriber's
Business are currently in full compliance with the Rules and Regulations, and
will remain so at all times during the term of this Agreement.
(c) Breach of Warranties. In the event of any breach, or reasonably
anticipated breach, of any of the foregoing warranties, in addition to any other
remedies available at law or in equity, Netgateway will have the right
immediately in Netgateway's reasonable discretion, to suspend any related
eCommerce Services if deemed reasonably necessary by Netgateway to prevent any
harm to Netgateway or its business.
5.2 Warranties and Disclaimers by Netgateway.
(a) No Other Warranty. THE ECOMMERCE SERVICES ARE PROVIDED ON AN "AS IS"
BASIS, AND SUBSCRIBER'S USE OF THE ECOMMERCE SERVICES IS AT ITS OWN RISK.
NETGATEWAY DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND/OR
IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE,
AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE.
NETGATEWAY DOES NOT WARRANT THAT THE ECOMMERCE SERVICES WILL BE UNINTERRUPTED,
ERROR-FREE OR COMPLETELY SECURE.
(b) Disclaimer of Actions Caused by and/or Under the Control of Third
Parties. NETGATEWAY DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM
NETGATEWAY'S INTERNET COMMERCE 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.
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 WILFUL 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, IN ALL CASES ARISING FROM EVENTS OCCURRING DURING THE TERM OF THIS
AGREEMENT, WHETHER BASED UPON TORT, CONTRACT WARRANTY, INDEMNITY CONTRIBUTION OR
OTHERWISE, DAMAGES SHALL BE LIMITED TO, AND SUBSCRIBER AGREES NOT TO MAKE ANY
CLAIM OR CLAIMS EXCEEDING [****], REGARDLESS OF HOW MANY CLAIMS SUBSCRIBER MAY
HAVE.
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. [Reserved].
6.6 Basis of the Bargain; Failure of Essential Purpose. Subscriber
acknowledges that Netgateway has set its prices and entered into this Agreement
in reliance upon the limitations of liability and the disclaimers of warranties
and damages set forth herein, and that the same form an essential basis of the
bargain between the parties. The parties agree that the limitations and
exclusions of liability and disclaimers specified in this Agreement will survive
and apply even if found to have failed of their essential purpose.
7. INDEMNIFICATION.
7.1 Netgateway's Indemnification of Subscriber. Netgateway will indemnify,
defend and hold Subscriber harmless from and against any and all costs,
liabilities, losses and expenses (including, but not limited to, reasonable
attorneys' fees) (collectively, "Losses") resulting from any claim, suit, action
or proceeding (each, an "Action") brought against Subscriber alleging the
infringement of any third party registered U.S. copyright or issued U.S. patent
resulting from the provision of eCommerce Services
NETGATEWAY /X0XXXXXXX.XXX
Electronic Commerce Services Agreement Page 2
pursuant to this Agreement (but excluding any infringement contributorily caused
by Subscriber's Business).
7.2 Subscriber's Indemnification of Netgateway. Subscriber will indemnify,
defend and hold Netgateway, its affiliates and customers harmless from and
against any and all Losses resulting from or arising out of Subscriber's breach
of any provision of this Agreement or any Action brought against Netgateway, its
directors, employees, affiliates or Subscribers alleging with respect to the
Subscriber's Business: (a) infringement or misappropriation of any intellectual
property rights; (b) defamation, libel, slander, obscenity, pornography or
violation of the rights of privacy or publicity; (c) spamming, or any other
offensive, harassing or illegal conduct or violation of the Rules and
Regulations; or, (d) any violation of any other applicable law or regulation.
7.3 Notice. Each party will provide the other party, prompt written notice of
the existence of any such indemnifiable 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 reasonable attorneys' fees, and each party shall bear
one-half of the cost of the arbitrator.
8.3 Arbitrator's Authority. The arbitrator shall have the authority to award
such damages as are not prohibited by this Agreement and may, in addition and in
a proper case, declare rights and order specific performance, but only in
accordance with the terms of this Agreement.
8.4 Enforcement of Arbitrator's Award. Any party may apply to a court of
general jurisdiction to enforce an arbitrator's award, and if enforcement is
ordered, the party against which the order is issued shall pay the costs and
expenses of the other party in obtaining such order, including reasonable
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 10.1
or 10.3 of this Agreement or to enjoin any infringement of the same by
Subscriber may, at Netgateway's election, be commenced in the state or 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 [****] ("Initial Term") from the date Subscriber begins
processing live data through the Netgateway ICC(TM), unless earlier terminated
according to the provisions of this Section 9. This Agreement will automatically
renew for successive additional terms of [****] 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 or any renewal
term thereafter.
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
failure 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. Subscriber shall have the right to terminate the
Agreement if the Netgateway servers which provide eCommerce Services hereunder
experience more than two percent (2%) down-time measured on an annual basis;
provided, however, that down-time shall not include time expended on regularly
scheduled maintenance and other system upgrades.
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 shall immediately cease providing
eCommerce Services; (b) any and all payment obligations of Subscriber under this
Agreement shall become due immediately; and (c) within thirty (30) days after
such expiration or termination, each party shall return all Confidential
Information of the other party in its possession at the time of expiration or
termination and shall not make or retain any copies of such Confidential
Information, except as required to comply with any applicable legal or
accounting record keeping requirements.
9.5 Survival. The following provisions shall 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 the Netgateway ICC(TM), 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
acknowledged 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 Section 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 Services 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 judgment, 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 actions 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 delaying 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(TM) 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(TM), and (iii)
NETGATEWAY /X0XXXXXXX.XXX
Electronic Commerce Services Agreement Page 3
Subscriber has no rights as a tenant or otherwise under any real property or
landlord/tenant laws, regulations or ordinances.
11.3 Marketing. Subscriber agrees that Netgateway may refer to Subscriber by
trade name and trademark, and may briefly describe Subscriber's business, in
Netgateway's marketing materials and web site. Subscriber hereby grants
Netgateway a license to use any Subscriber trade names and trademarks solely in
connection with the rights granted to Netgateway pursuant to this Section 11.3.
11.4 Government Regulations. Subscriber will not export, re-export, transfer
or make available, whether directly or indirectly, any regulated item or
information to anyone outside the U.S. in connection with this Agreement without
first complying with all export control laws and regulations which may be
imposed by the U.S. Government and any country or organization of nations within
whose jurisdiction Subscriber operates or does business.
11.5 Non-Solicitation. Except with the prior consent of Netgateway, which
consent shall not be unreasonably withheld, during the period beginning on the
Operational Data and ending [****] in accordance with its terms, Subscriber
agrees that it will not, and will ensure that its affiliates do not, directly or
indirectly, solicit or attempt to solicit for employment any persons employed by
Netgateway during such period.
11.6 Governing Law; Dispute Resolution, Severability; Waiver. This Agreement
is made under and will be governed by and construed in accordance with the laws
of the State of California (without regard to that body of law controlling
conflicts of law) and specifically excluding from application to this Agreement
that law known as the United Nations Convention on the International Sale of
Goods. Any dispute relating to the terms, interpretation or performance of this
Agreement (other than claims for preliminary injunctive relief or other
pre-judgment remedies) will be resolved at the request of either party through
binding arbitration. Arbitration will be conducted in Los Angeles County,
California, under the rules and procedures of the Judicial Arbitration and
Mediation Society ("JAMS"). The parties will request that JAMS appoint a single
arbitrator possessing knowledge of online services agreements; provided,
however, the arbitration will proceed even if such a person is unavailable. In
the event any provision of this Agreement is held by a tribunal of competent
jurisdiction to be contrary to the law, the remaining provisions of this
Agreement will remain in full force and effect. The waiver of any breach or
default of this Agreement will not constitute a waiver of any subsequent breach
or default, and will not act to amend or negate the rights of the waiving party.
11.7 Assignment; Notices. Subscriber may not assign its rights or delegate
its duties under this Agreement either in whole or in part without the prior
written consent of Netgateway, except that Subscriber may assign this Agreement
in whole as part of a corporate reorganization, consolidation, merger or sale of
substantially all of its assets. Any attempted assignment or delegation without
such consent will be void. Netgateway may assign this Agreement in whole or
part. This Agreement will bind and inure to the 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: _________________________ Signature: _____________________
Print Name: _________________________ Print Name: _____________________
Title: _________________________
NETGATEWAY
Signature: _________________________ Signature: _____________________
Print Name: _________________________ Print Name: _____________________
Title: _________________________
NETGATEWAY /X0XXXXXXX.XXX
Electronic Commerce Services Agreement Page 4
EXHIBIT "A"
ELECTRONIC COMMERCE SERVICES ORDER FORM
NETGATEWAY
ECOMMERCE SERVICES ORDER FORM
Subcriber Name: X0XXXXXXX.XXX INC.
Form Date: July 28, 1999
Form No.: 001
GENERAL INFORMATION:
1. By submitting this eCommerce Services Order Form ("Form") to
Netgateway, Subscriber hereby places an order for the eCommerce
Services described herein pursuant to the terms and conditions of the
Electronic Commerce Services Agreement between Subscriber and
Netgateway prefixed hereto (the "ECS Agreement").
2. Billing, with the exception of Development Fees, will commence on the
Operational Date set forth below or the date that Subscriber first
begins to process transactions through the Netgateway Internet Commerce
Center, whichever occurs first.
3. Netgateway will provide the eCommerce Services pursuant to the terms
and conditions of the ECS Agreement, which incorporates this Form. The
terms of this Form supersede, and by accepting this Form, Netgateway
hereby rejects, any conflicting or additional terms provided by
Subscriber in connection with Netgateway's provision of the eCommerce
Services. If there is a conflict between this Form and any other Form
provided by Customer and accepted by Subscriber, the Form with the
latest date shall control.
4. Netgateway will not be bound by or required to provide eCommerce
Services pursuant to this Form or the ECS Agreement until each is
signed by an authorized representative of Netgateway.
SUBSCRIBER HAS READ, UNDERSTANDS AND HEREBY SUBMITS THIS ORDER.
Netgateway Communications, Inc. Confidential Page 1
Submitted By: __________________________ Operational Date: __________________
(Authorized Signature)
Print Name: ____________________________
Title: ____________________________
Netgateway Acceptance
---------------------
________________________________________ Date: _____________________________
(Authorized Signature:
Netgateway Communications, Inc. Confidential Page 1
NETGATEWAY
ECOMMERCE SERVICES ORDER FORM
Subscriber Name: X0XXXXXXX.XXX INC.
Form Date: July 28, 1999
Form No.: 001
Terms:
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Netgateway Communications, Inc. Confidential Page 1
Subscriber's Initials WJK
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Netgateway Communications, Inc. Confidential Page 1
