ALTAVISTA E-COMMERCE
MERCHANT SERVICES AGREEMENT
THIS ALTAVISTA E-COMMERCE MERCHANT SERVICES AGREEMENT ("Agreement") is
made and entered into as of January 24th 2000, by and between BAY
MICROCOMPUTERS, [xxx.xxxxxxxxxxxxxx.xxx], a California corporation, located at
0000 Xxxx 000xx, Xxxxxxxx, Xxxxxxxxxx 00000 XXX ("Merchant"), and ALTAVISTA
COMPANY, a Delaware corporation, located at 000 Xxxxxx, Xxxxxx, Xxxxxxxxxx 00000
XXX ("AltaVista"), with regard to Merchant's purchase of user traffic from the
AV Platforms. For purposes of this Agreement, "AV Platform" means a generic or
customized set of web pages that may operate as a web site, and which may
contain any feature that might be desirable on a set of web pages and may be
branded using third parties' names or any combination of AltaVista's, Alta
Vista's Affiliates (which means any person or entity directly or indirectly
controlling, controlled by or under common control with AltaVista) and third
parties' names. "User traffic" means page views on the AV Platforms that contain
a reference, text or logo link to the Merchant's web site.
MERCHANT LEVEL ELECTION
Merchant elects the Standard Level of participation as indicated below:
/X/ STANDARD MERCHANT LEVEL -- COMPUTER HARDWARE
- Text link listing on the Merchant Results pages linked to
specific products that Merchant sells
- Text link listing on Category Page
PAYMENTS AND REPORTING
- Merchant shall receive participation at the Standard Merchant
Level at no charge, CONTINGENT UPON RECEIPT BY ALTAVISTA OF A
SUCCESSFUL MERCHANT DATAFEED, beginning February 1st, 2000 for an
unlimited term or until terminated by either party upon thirty
(30) day prior written notice.
- Alta Vista shall track the number of click-thrus to Merchant's
web site from AV Platforms ("Click-thrus") monthly and report
same to Merchant by the tenth (10th) of each month. Merchant
shall pay Alta Vista $.50 for each Click-thru. Click-thrus
payment shall be capped at fifteen thousand dollars ($15,000.00)
per month although the total number of click-thrus may exceed
thirty thousand (30,000) per month. Payment is due within thirty
(30) days of the date of the invoice.
RECORD KEEPING AND AUDITING
- Record Keeping. Both parties agree to maintain complete and
accurate files, books and records related to its performance of
and calculation of amounts due under this Agreement.
- Audit Rights. Each party will have the right to audit and inspect
such files, books and records of account of the other upon
reasonable notice during regular business hours, but no more
frequently than once each quarter. In the event a discrepancy is
found to exist, the party favored by such discrepancy shall be
entitled to payment of such amounts. Payment of the auditor will
be the responsibility of the initiating party, unless the auditor
finds a discrepancy of greater than ten percent (10%), in which
case the party responsible for the error shall pay the reasonable
costs of the auditor.
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TERMS AND CONDITIONS
1. LICENSE. Merchant hereby grants to AltaVista and its Affiliates, under all
of Merchant's intellectual property rights, a worldwide, non-transferable,
non-exclusive license, during the term of this Agreement, to use, adapt,
reproduce, transmit, publicly display, publicly perform, store, copy and
distribute Merchant's logos, trademarks, tradenames, service marks and
other intellectual property used in connection with this Agreement.
Notwithstanding the foregoing, Merchant acknowledges that the use of its
logos, trademarks, tradenames, service marks and other intellectual
property referenced in this Agreement is limited to the use licensed in
this Agreement.
2. POSITIONING. This Agreement specifies Merchant as a Standard Merchant
Level.
3. PAYMENT. Merchant agrees to pay all fees, agency commissions and taxes
related to its placement as a Premium, Preferred and/or Standard Merchant
on the AV Platforms, when due and as set forth in this Agreement. If an
agent acts on your behalf in connection with this Agreement, you remain
responsible for payments and other obligations, and you will be deemed to
receive any refunds, notices and other documents or information from
AltaVista when received by your agent.
4. TAXES. Merchant is solely liable for any tax, levy or other fee relating to
the placement of the logos, trademarks, tradenames, service marks and other
intellectual property within the AV Platforms.
5. REPRESENTATIONS AND WARRANTIES. Merchant represents and warrants that (i)
it has obtained all necessary consents and licenses, and has full authority
to grant the licenses contained in this Agreement; and (ii) the Merchant's
logos, trademarks, tradenames, service marks and other intellectual
property do not, and their placement within the AV Platforms in accordance
with this Agreement will not: (a) violate any international, federal, state
or local law or regulation; (b) infringe any copyright, trademark, trade
secret or other intellectual property rights of any third party; (c) in any
way misappropriate any party's name or likeness, or violate any party's
right of privacy, publicity, or any other right of any third party; or (d)
contain any material which is unlawful, harmful, abusive, hateful, obscene,
threatening, libelous or defamatory.
6. PLACEMENT; RESERVATION OF RIGHT. AltaVista and/or its Affiliates will place
Merchant's logos, trademarks, tradenames, service marks and/or other
intellectual property within the AV Platforms as specified in this
Agreement and/or as mutually agreed by the parties from time to time, in
writing. Nevertheless, AltaVista and its Affiliates reserve the right, in
their sole discretion, to reject or remove Merchant's logos, trademarks,
tradenames, service marks and/or other intellectual property, if AltaVista
and/or its Affiliates reasonably believes that such logos, trademarks,
tradenames, service marks and/or other intellectual property might violate
any of Merchant's representations under this Agreement, or might fail to
conform to the operating policy of AltaVista and/or its Affiliates.
7. INDEMNITY. Merchant agrees to indemnify, defend and hold harmless
AltaVista, its Affiliates and each of their respective shareholders,
officers, directors, employees and agents, from and against any and all
losses, liabilities, injuries, damages, reasonable attorneys' fees and
other costs and expenses incurred in connection with any breach of
Merchant's representations under this Agreement.
8. LIMITATION OF LIABILITY. AltaVista's liability, and the liability of its
Affiliates, in connection with this Agreement and the publication of logos,
trademarks, tradenames, service marks and other intellectual property by or
on behalf of AltaVista and its Affiliates shall be limited to the fees paid
by Merchant under this Agreement. AltaVista's inability to perform any of
its obligations under this Agreement due to any cause beyond AltaVista's
control will not constitute a breach of this Agreement, and AltaVista's
obligations hereunder will be suspended during the time period during which
any such force majeure event occurs. If AltaVista is unable to place the
logos, trademarks, tradenames, service marks and other intellectual
property in accordance with the agreed schedule set forth in this Agreement
because of act or omission by Merchant or Merchant's agents, AltaVista
shall still be entitled to full and timely payment of all fees relating to
the services performed under this Agreement. IN NO EVENT SHALL ALTAVISTA BE
LIABLE TO MERCHANT FOR ANY LOST REVENUES OR PROFITS, OR ANY INCIDENTAL,
CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES ARISING OUT OF THIS AGREEMENT
OR ITS TERMINATION.
9. CONFIDENTIALITY. AltaVista and Merchant agree that for the purposes of
fulfilling the terms of this Agreement, any Confidential Information
("Confidential Information" means that information which a proprietary in
nature and would be harmful if disclosed to a third party) shall only be
disclosed to employees, subcontractors and consultants that have a need to
know such Confidential Information.
10. TERM; TERMINATION. This Agreement shall be effective February 1st, 2000 and
shall continue in full force and effect unless terminated by either party
upon thirty (30) days prior written notice. In addition, AltaVista may
terminate this Agreement early and remove the logos, trademarks,
tradenames, service marks and other intellectual property from the AV
Platforms immediately if AltaVista reasonably believes that such logos,
trademarks, tradenames, service marks and other intellectual property
violate any of Merchant's representations under this Agreement. All fees
and other charges incurred through the date of termination shall be due
upon termination.
11. GOVERNING LAW. This Agreement shall be governed by the laws of the State of
California, excluding choice of law provisions.
12. PUBLICITY. Neither party will make any public statement, press release, or
other announcement relating to the terms of, or existence of this Agreement
without the prior written approval of the other. If the parties agree to
issue an initial press release regarding the relationship between AltaVista
and Merchant, the timing and wording will be mutually agreed upon.
13. MISCELLANEOUS. The AltaVista E-Commerce Merchant Services Agreement
includes those Terms and Conditions which constitutes the entire agreement
between Merchant and AltaVista as to its subject matter, and may not be
modified, except by a written document that is duly signed by each party's
authorized representative. If any term of this Agreement is found to be
void or unenforceable to any extent for any reason, all remaining terms and
provisions of this Agreement shall remain in full force and effect. This
Agreement shall be binding upon the parties' respective successors and
permitted assigns. Neither party may assign this Agreement and/or any of
its rights and/or obligations hereunder without the prior written consent
of the other party (which shall not be unreasonably withheld or delayed)
and any such attempted assignment shall be void, except that either party
may assign this Agreement and any of its rights or obligations to its
subsidiaries or other affiliates or, in connection with any merger, sale of
assets or other reorganization transaction, to any other third party
without the consent of the other party. This Agreement shall inure to the
benefit of AltaVista's Affiliates.
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IN WITNESS WHEREOF, the parties have executed this Agreement by their
duly authorized representatives as of the date written above.
ALTAVISTA COMPANY BAY MICROCOMPUTERS
By: /s/ XXXXX XXXXXXX By: /s/ XXXXX XXXXX
----------------- ---------------
Name: Xxxxx Xxxxxxx Name: Xxxxx Xxxxx
Title: Vice President, E-Commerce Sales & Title: President
Strategic Partnerships
Date: January 24, 2000 Date: 1/24/00
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