"NOTE - Certain confidential technical and commercial information has been
redacted from this exhibit in order to preserve the confidentiality of such
information. All of the confidential information which has been redacted is on
file with the Securities and Exchange Commission. Redacted material is
indicated by the symbol, "[**REDACTED**]" where such redacted text would have
appeared in this exhibit."
XXXXXXXXXXXX.XXX
DISTRIBUTOR MALL AND STOREFRONT AGREEMENT
XXXXXXXXXX.XXX, INC.
THIS DISTRIBUTOR MALL AND STOREFRONT AGREEMENT (the "AGREEMENT") is made and
entered into as of the date set forth on the Addendum attached hereto and by
this reference made a part hereof (the "ADDENDUM"), between and among
XXXXXXXXXXXX.XXX, INC., a California corporation, and NETGATEWAY, a Nevada
corporation, on the one hand (collectively, "STORESONLINE"), and XXXXXXXXXX.XXX,
INC., a Delaware corporation ("DISTRIBUTOR"), on the other hand.
R E C I T A L S
A. Distributor is an established business entity, engaged in the
business described on the Addendum.
B. StoresOnline owns, operates and maintains an Internet
storefront-building services package comprised of certain services delivered
through StoresOnline's proprietary software, the standard features of which
are more particularly described on the Addendum (the "SERVICES").
C. The Services are delivered through the Internet and may be made
available through a private, branded electronic exchange to be developed for
resellers of Distributor.
D. StoresOnline desires to (i) sell and license the Services to
Distributor for Distributor's resale and sublicense to resellers and end-user
customers and (ii) develop one or more on-line mall(s) to be branded around each
reseller's name, brand and image (the "Malls").
AGREEMENT
NOW, THEREFORE, on the basis of the foregoing recitals, and in
consideration of the mutual promises contained herein, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto covenant and
agree as follows:
1. SERVICES.
a. SCOPE OF AGREEMENT. This Agreement covers (i) the purchase,
licensing and sale of the Services and (ii) the design and development of the
Malls pursuant to and in accordance with the terms and conditions set forth on
the Addendum.
b. LICENSE GRANT; SALE OF SERVICES. During the term of this
Agreement, StoresOnline grants to Distributor, subject to the terms and
conditions of this Agreement, the [**REDACTED**] right and license to resell
and sublicense (in the case of software products), the Services to
Distributor's reseller customers; [**REDACTED**] In the case of software
products, Distributor acknowledges that such software is and will remain
proprietary to StoresOnline, is copyrighted and that Distributor acquires no
right, title or interest in or to any such software by this Agreement.
Distributor agrees to sublicense the Services hereunder pursuant to the
Standard License Agreement Terms set forth on Exhibit "A" hereto, and to
cause each of its resellers to sublicense the Services pursuant to such
license terms. All agreements between Distributor and any of its resellers
for the resale and sublicense of the Services shall be in form and substance
satisfactory to StoresOnline and its counsel.
c. PRODUCT NAME. It is expressly agreed that the ownership and all
right, title and interest in and to the Services and any trademark, trade name,
patent or copyright relating to the Services is and will remain vested solely in
StoresOnline; PROVIDED, HOWEVER, that as permitted by this Agreement,
Distributor may use any existing or future trademark, trade name, patent or
copyright relating to the Services, such use to be limited to promoting,
selling, installing or maintaining the Services; and PROVIDED, FURTHER, that as
permitted by this Agreement, the Services may be branded around the name, brand
and image of one or more of Distributor's resellers. Distributor shall use its
best efforts during the term of this Agreement to protect StoresOnline's
trademarks, trade names, patents and copyrights, but shall not be required to
instigate legal action against third parties for any infringement thereof.
Distributor shall notify StoresOnline of any infringement as soon as practicable
after becoming aware of any such infringement. Distributor shall not use,
directly or indirectly, in whole or in part, StoresOnline's name or any other
trade name or trademark that is owned or used by StoresOnline in connection with
any product other than StoresOnline's products, without the prior written
consent of StoresOnline.
d. MALL DEVELOPMENT. StoresOnline shall develop the Malls in
accordance with the terms and conditions set forth herein and on the
Addendum. The Malls shall be branded around name, brand and image of
Distributor and/or Distributor's resellers and shall link to such reseller's
branded StoresOnline individual storefront solution. The Malls will include
appropriate URL addresses, four to six featured products and stores from
various Distributor, reseller and/or third party advertisers, additional
Distributor/reseller and non-Distributor/non-reseller advertiser stores and
products catalogued with text references, and links to top-tier eCommerce
sites, as approved by Distributor.. The Malls will also include an
appropriate search engine, commerce functionality, banner and other
appropriate advertising space and such other features as the parties shall
mutually agree. The Mall will be capable of cataloguing stores independently
or in conjunction with all other Malls developed hereunder, if any, as well
as other malls which belong to the StoresOnline electronic mall network.
Distributor agrees and understands that the storefronts contained in the
Malls may be placed in one or more electronic malls developed and/or operated
by StoresOnline.
2. Term of Agreement. The term of this Agreement shall commence as of
the execution hereof and continue for an initial term of [**REDACTED**] The
Agreement shall automatically be extended for successive [**REDACTED**] terms
thereafter unless either party notifies the other, not less than thirty (30)
days prior to the expiration of the applicable term, of its intention not to
renew.
a. Notwithstanding the foregoing, this Agreement may be
terminated in accordance with the provisions of Section 10.
b. Termination of this Agreement shall not relieve either party
of any obligations incurred prior to termination, including outstanding
delivery and payment obligations and other contractual commitments herein or
mutually agreed to from time to time by the parties in writing. The
obligations set forth in Sections 3d, 6b, 8, 10a, 12c, 12e, 12f and 12h are
expressly intended to survive termination of this Agreement.
3. PRICES AND TAXES.
a. PRICES FOR SERVICES. StoresOnline shall charge Distributor's
end-user customers the one-time Store Set-up Price set forth on the Addendum
for each electronic storefront that is established pursuant to this
Agreement. StoresOnline shall charge Distributor the applicable Monthly Base
Wholesale Price set forth on the Addendum for each active storefront. Unless
Distributor elects to xxxx its customers directly in accordance with
paragraph 6.c herein, the Monthly Base Wholesale Price for each active
storefront shall be offset by StoresOnline against payments due to
Distributor and the applicable mall reseller in accordance with paragraph 6.b
hereof.
b. PRICE ADJUSTMENTS FOR SERVICES. The prices for the Services
set forth on the Addendum (other than the Retail Prices which are set by
Distributor) are subject to change by StoresOnline at any time, and shall
become effective ninety (90) days after written notification of such change
to Distributor. Distributor shall retain the right to terminate this
Agreement during such notification period in the event such price changes are
not acceptable.
c. RETAIL PRICES FOR SERVICES. On or before the first day of
each month, Distributor shall provide StoresOnline with a list of the
Distributor prices charged for each class of Accounts or for each Account (as
hereinafter defined).
d. PRICES FOR MALL DEVELOPMENT; MALL REVENUE SPLIT. All prices
for Mall design, development and operation provided hereunder shall be as set
forth on the Addendum. It is anticipated that the Malls will generate
multiple revenue streams.
[**REDACTED**]
e. TAXES. All prices for any services or products supplied
hereunder are 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 services or products hereunder (collectively, but exclusive of taxes
based on StoresOnline's income, "Taxes"). Distributor or Distributor's
customers, as applicable, shall pay any and all such Taxes, or StoresOnline
may pay such Taxes for Distributor's account or Distributor's customers'
account, in which case Distributor shall be obligated to reimburse
StoresOnline for amounts so paid. Any such Taxes which are charged to or
payable by StoresOnline will be invoiced to and paid by Distributor in the
manner set forth in Section 6 below. In the event that Distributor directly
invoices its customers pursuant to paragraph 6.c hereof, Distributor shall be
solely responsible for the collection and payment of any such Taxes.
In the event that Distributor requests that StoresOnline arrange for the
installation of high speed telecommunications services necessary for
Distributor's use, such services will be maintained in StoresOnline's name or
Distributor's name, as determined by StoresOnline in its sole discretion. In
the event that such services are maintained in the name of StoresOnline,
Distributor shall promptly remit payment to StoresOnline for all charges in
connection with the installation and use thereof. STORESONLINE SHALL NOT BE
LIABLE TO DISTRIBUTOR FOR ANY FAILURE, FAULT, DELAY, INTERRUPTION OR LOSS OF
TELECOMMUNICATIONS SERVICES EXCEPT TO THE EXTENT CAUSED BY STORESONLINE'S GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT.
4. FORECASTS. Within thirty (90) days of execution of this Agreement,
Distributor shall provide StoresOnline with a written, non-binding forecast of
Distributor's projected purchases of Services for the following twelve (12)
calendar months, with a projected number of Malls and Account (as hereinafter
defined) quantities to be identified by month. Such forecast shall be updated
monthly by Distributor to set forth forecasts for each subsequent twelve (12)
month period.
5. CUSTOMER ACCOUNTS.
a. CUSTOMER ACCOUNT REGISTRATION PROCESS. The Services provided hereunder
include an online registration process that end-user customers (i.e., merchants)
will use to establish storefront accounts with StoresOnline (the "ACCOUNTS").
In order to establish an Account, such customers must complete an on-line
registration process in accordance with the terms set forth on the applicable
Mall website. At the option of the customer, registration may also be completed
non-electronically. To establish an Account, end-user customers must also
provide credit card information and authorize the payment of fees for Services
on a monthly basis in advance. The general terms and conditions for the use of
Accounts shall be posted from time to time on the applicable Mall web site, or
in the event that StoresOnline establishes an electronic exchange for
Distributor or Distributor's reseller, such information will be posted on such
exchange. The terms and conditions as posted shall, in all events and at all
times, be binding upon the Distributor, its resellers and their customers who
establish Accounts. The terms and conditions governing such Accounts may be
amended on-line from time to time by StoresOnline in its sole discretion.
b. CONTINUATION OF CUSTOMER ACCOUNTS. Continuation of each customer
Account and the Malls are subject to the timely payment of the monthly fees
associated with such Accounts and Malls, and failure to do so shall constitute
grounds for StoresOnline to cancel and terminate an Account or to shut down the
Mall.
6. BILLING AND PAYMENT TERMS.
a. INVOICING FOR SERVICES. StoresOnline shall electronically
invoice all end-user customers and directly charge against the credit card
accounts provided by such customers for that purpose during the registration
process for the retail price of the Services charged by Distributor. All
fees due from customers shall be paid in advance and are due on the first day
of each month. In preparing the invoices and charging against the applicable
credit cards, StoresOnline shall use the most recent Distributor retail
prices provided to StoresOnline by Distributor pursuant to Section 3.c hereof
for the Accounts invoiced.
b. PAYMENT AND COLLECTION FOR SERVICES. StoresOnline shall collect
the monthly fees set by Distributor from all end-user customers on a monthly
basis and, after deducting any fees and expenses to which it is entitled
hereunder, shall remit (i) all amounts due to the applicable reseller in a
manner approved by Distributor, and (ii) the balance to Distributor, together
with statements setting forth the amounts collected, the amounts deducted and
the total amount remitted within 45 days after the month in which such amounts
were collected. In the event payment is not received by StoresOnline within the
specified time, an additional late charge of one and one half percent (1.5%) of
the past due amount will be assessed to such late paying customer for each
thirty (30) days outstanding, prorated on a daily basis, which late charges
shall be payable in full to StoresOnline. All payments for Services shall be
made in United States dollars.
c. DIRECT DISTRIBUTOR BILLING FOR SERVICES. Distributor may invoice
its customers directly for the Services provided hereunder. In such event,
Distributor shall remit directly to StoresOnline the applicable Monthly Base
Wholesale Price (per storefront). All such fees shall be paid in advance and
are due on the first day of each month.
d. BILLING FOR MALL RELATED CHARGES; ADVERTISING AND RELATED
REVENUES. StoresOnline shall invoice Distributor directly for all charges due
hereunder in connection with the design, development and operation of the Malls,
which charges shall be payable by Distributor in accordance with the Addendum.
All revenues generated from the Malls (including advertising and related
revenues) which are required to be split between StoresOnline and Distributor
pursuant to paragraph 3(d) hereof shall be invoiced and collected by
StoresOnline if due from individual stores or advertising sold by Stores Online;
and by Stores Online or Distributor, as determined by Distributor, if from
reseller or advertising sold by reseller or Distributor. StoresOnline and/or
Distributor shall thereafter forward all amounts due, if any, to the other party
(net 45 days) at the address provided on the signature page hereto, together
with a statement setting forth the total amounts collected, the amounts payable
and the amounts remitted.
7. REAL TIME PAYMENT PROCESSING. In the event that a customer wishes to
use the StoresOnline real-time credit card payment processing option, such
customer must establish a customer account with an FDIC network bank and must
open an account with a participating credit-card processor.
8. DISCLAIMER OF WARRANTIES AND LIMITATIONS OF LIABILITY.
a. DISCLAIMER OF WARRANTY. EXCEPT AS SPECIFICALLY PROVIDED HEREIN,
THERE ARE NO, AND STORESONLINE EXPRESSLY DENIES, REJECTS AND DISCLAIMS ANY
WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES
OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR WARRANTIES OF THE
CORRECTNESS, ACCURACY, PRECISION, TIMELINESS OR COMPLETENESS OF ANY INFORMATION
OR SERVICES PROVIDED HEREUNDER.
b. LIMITATION OF LIABILITY. STORESONLINE, ITS DIRECTORS, OFFICERS,
AFFILIATES, EMPLOYEES AND AGENTS SHALL NOT BE LIABLE TO DISTRIBUTOR, ANY
RESELLER OR TO ANY OTHER 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 STORESONLINE, ITS
DIRECTORS, OFFICERS, AFFILIATES, EMPLOYEES 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 THE SERVICES, OR ANY DATA PROVIDED AS
A PART OF THE SERVICES PURSUANT TO THIS AGREEMENT, EXCEPT TO THE EXTENT CAUSED
BY THE NEGLIGENCE OR WILLFUL MISCONDUCT OF STORESONLINE. 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 DISTRIBUTOR AGREES NOT TO MAKE ANY CLAIM OR CLAIMS EXCEEDING,
TWENTY-FIVE THOUSAND DOLLARS ($25,000.00), REGARDLESS OF HOW MANY CLAIMS
DISTRIBUTOR HAVE; PROVIDED, HOWEVER, THAT THE DOLLAR LIMITATION SET FORTH IN
THIS SENTENCE SHALL NOT APPLY TO ANY MONIES DUE TO DISTRIBUTOR IN CONNECTION
WITH ANY OF THE ACCOUNTS ESTABLISHED PURSUANT TO THIS AGREEMENT. IN ADDITION,
IN NO EVENT SHALL STORESONLINE BE LIABLE TO DISTRIBUTOR OR ANY RESELLER OR TO
ANY OTHER THIRD PARTY FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL LOSSES
OR DAMAGES WHICH DISTRIBUTOR, SUCH RESELLER OR SUCH THIRD PARTY MAY INCUR OR
EXPERIENCE ON ACCOUNT OF ENTERING INTO OR RELYING ON THIS AGREEMENT OR UTILIZING
THE SERVICES, REGARDLESS OF WHETHER STORESONLINE HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES OR WHETHER SUCH DAMAGES ARE CAUSED, IN WHOLE OR IN
PART, BY THE NEGLIGENCE OF STORESONLINE.
c. TIME FOR MAKING CLAIMS. ANY SUIT OR ACTION BY DISTRIBUTOR AGAINST
STORESONLINE, ITS DIRECTORS, OFFICERS, AFFILIATES, EMPLOYEES, AGENTS, 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
STORESONLINE'S LIABILITY SET FORTH IN THIS PARAGRAPH 8 OR ELSEWHERE IN THIS
AGREEMENT.
d. DISCLAIMER. THE WARRANTIES AND CONDITIONS SET FORTH HEREIN AND THE
OBLIGATIONS AND LIABILITIES OF STORESONLINE HEREUNDER ARE IN LIEU OF, AND
DISTRIBUTOR HEREBY WAIVES, ALL EXPRESS AND IMPLIED WARRANTIES AND CONDITIONS,
INCLUDING, WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE OR NONINFRINGEMENT. IN NO EVENT SHALL STORESONLINE'S
LIABILITY FOR ANY CLAIM ASSERTED BASED ON A VIOLATION OF WARRANTY OR CONDITION
EXCEED THE AMOUNT PAID BY DISTRIBUTOR TO STORESONLINE FOR THE AFFECTED ITEM OF
SERVICES.
e. INDEMNIFICATION. DISTRIBUTOR SHALL INDEMNIFY, DEFEND AND HOLD
STORESONLINE, ITS DIRECTORS, OFFICERS, AFFILIATES, EMPLOYEES AND AGENTS HARMLESS
FROM AND AGAINST ANY AND ALL CLAIMS, COSTS, CAUSES OF ACTION, EXPENSES AND
LIABILITIES, OF ANY KIND OR NATURE WHATSOEVER, INCLUDING REASONABLE ATTORNEYS'
FEES, ASSERTED BY ANY OF DISTRIBUTOR'S RESELLERS AND RESULTING FROM OR ARISING
OUT OF THIS AGREEMENT OR THE SERVICES RESOLD OR SUBLICENSED HEREUNDER, EXCEPT
FOR CLAIMS BY RESELLER(S) FOR AMOUNTS DUE IN CONNECTION WITH ANY OF THE
STOREFRONT ACCOUNTS ESTABLISHED PURSUANT TO THIS AGREEMENT.
9. DOCUMENTATION AND TRAINING. Provided that Distributor has met the
minimum performance standards set forth elsewhere in this Agreement,
StoresOnline shall, on a semi-annual basis, provide free-of-charge a one (1)
day training program for employees designated by Distributor at the
StoresOnline corporate headquarters. Additional training by StoresOnline
shall be made available to Distributor at StoresOnline's standard rates. All
expenses of the trainees under this Section 9 shall be borne solely by
Distributor.
10. DEFAULT.
a. DISTRIBUTOR'S DEFAULT. The failure by Distributor to make any
payment required hereunder or a material breach by Distributor of its
obligations hereunder shall constitute an event of default by Distributor. Upon
the occurrence of an event of default, StoresOnline shall provide Distributor
with written notice specifying the nature of such default. If Distributor has
not cured such default within thirty (30) days after receipt of such notice,
StoresOnline may, at its sole discretion, terminate this Agreement and/or seek
any other available remedies available at law or in equity; PROVIDED, HOWEVER,
that the cancellation of this Agreement shall not prevent Distributor from
reselling the Services (and sublicensing the software component thereof)
previously paid for by Distributor and sublicenses previously granted by
Distributor pursuant hereto shall not be affected by such termination.
b. STORESONLINE'S DEFAULT. The failure by StoresOnline to make any
payment required hereunder or a material breach by StoresOnline of its
obligations hereunder shall constitute an event of default by StoresOnline.
Upon the occurrence of an event of default by StoresOnline, Distributor or
Reseller shall provide StoresOnline with written notice specifying the nature of
such default. If StoresOnline fails to cure such default within thirty (30)
days after receipt of such notice, Distributor may, at its sole option,
terminate this Agreement.
c. INSOLVENCY. The commencement of any proceeding (voluntary or
involuntary) in bankruptcy or insolvency by or against either party hereto, or
the appointment (with or without the party's consent) of an assignee for the
benefit of creditors or a receiver with respect to either party hereto shall
constitute an event of default hereunder, and the non-defaulting party may elect
to terminate this Agreement immediately.
11. DISPUTE RESOLUTION.
a. 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 11
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 subparagraph e. below, may be submitted to
arbitration, the parties shall first follow the informal and escalating
procedures set forth below.
(1) The complaining party will notify the other party in writing of
the dispute, and the non-complaining party will exercise good faith efforts to
resolve the matter as expeditiously as possible.
(2) In the event that such matter remains unresolved for thirty (30)
days after the delivery of the complaining 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.
(3) In the event that the meeting or conference specified in (2)
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.
(4) 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 subparagraph b.
below.
b. Except as provided in subparagraph e. below, any dispute arising under
this Agreement shall, after utilizing the procedures in subparagraph a., be
resolved by final and binding arbitration in Long Beach, California, before a
single arbitrator selected by, and in accordance with, the rules of commercial
arbitration of the American Arbitration Association. Each party shall bear its
own costs in the arbitration, including attorneys' fees, and each party shall
bear one-half of the cost of the arbitrator.
c. 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.
d. Either party may apply to a court of general jurisdiction to enforce a
arbitrator's award, and if enforcement is ordered, the party against which the
order is issued shall pay the costs and expenses of the other party in obtaining
such order, including reasonable attorneys' fees.
e. Notwithstanding the provisions of subparagraphs a. and b. above, any
action by StoresOnline to enforce its rights under Paragraph 12e of this
Agreement or to enjoin any infringement of the same by Distributor may, at
StoresOnline's election, be commenced in the state or federal courts of
California, and Distributor consents to personal jurisdiction and venue in such
courts for such actions.
12. GENERAL.
a. ENTIRE AGREEMENT; AMENDMENT. This Agreement and the Joint Marketing
and Promotion Agreement, dated of even date herewith, by and between
StoresOnline and the Distributor constitute the entire agreement between
StoresOnline and the Distributor and supersede all previous understandings,
negotiations and proposals, whether written or oral. This Agreement may not be
altered, amended or modified except by an instrument in writing signed by duly
authorized representatives of each party. In the event that any one or more
provisions contained in this Agreement should for any reason be held to be
unenforceable in any respect, such unenforceability shall not affect any other
provisions hereof, and this Agreement shall be construed as if such
unenforceable provision had not been contained herein.
b. FORCE MAJEURE. Neither party shall be liable to the other for delays
or failures to perform an obligation to the other hereunder if such delay or
failure to perform is due to any act of God, acts of civil or military
authority, labor disputes, fire, riots, civil commotion's, sabotage, war,
embargo, blockage, floods, epidemics, delays in transportation, inability beyond
StoresOnline's reasonable control to obtain necessary labor, materials or
manufacturing facilities, or when due to governmental restrictions, including
the inability of StoresOnline to obtain appropriate U.S. export license approval
or the subsequent suspension of same. In the event of any such delay or
failure, the parties shall have an additional period of time equal to the time
lost by reason of the foregoing in which to perform hereunder.
c. GOVERNING LAW. This Agreement shall be governed in all respects by
the laws of the State of California, without regard to principles of choice of
law.
d. ASSIGNMENT. Distributor shall not assign this Agreement or any rights
hereunder without the prior written consent of StoresOnline, which consent shall
not be unreasonably withheld, except that Distributor may assign this Agreement
without the consent of StoresOnline if such assignment is completed in
connection with the the sale of all or substantially all of the assets of
Distributor. StoresOnline may assign this Agreement to a subsidiary, affiliate
corporation or the purchaser of all or substantially all of StoresOnline's
assets.
e. DISCLOSURE OF INFORMATION. Distributor acknowledges that, in the
course of purchasing Services and meeting its obligations under this Agreement,
it will obtain information relating to the Services and to StoresOnline, which
is of a confidential and proprietary nature ("STORESONLINE PROPRIETARY
INFORMATION"). Such StoresOnline Proprietary Information may
include, but is not limited to, trade secrets, know-how, inventions,
techniques, processes, programs, schematics, data, customer lists, financial
information and sales and marketing plans.
Distributor shall at all times during the term of this Agreement and for
three years after its termination, keep in confidence and trust from any person
or entity, all StoresOnline Proprietary Information and shall not disclose or
use such StoresOnline Proprietary Information without the prior written consent
of StoresOnline, unless compelled to disclose such StoresOnline Proprietary
Information by judicial or administrative process (including, without
limitation, in connection with obtaining the necessary approvals of this
Agreement and the transactions contemplated hereby of governmental or regulatory
authorities) or by other requirements of law. Upon termination of this
Agreement, Distributor shall promptly return to StoresOnline all StoresOnline
Proprietary Information under its control and all copies thereof.
Neither party hereto shall disclose the specific terms of this Agreement
to any third parties except as may be mutually agreed or as required by law or
the order of a court of competent jurisdiction.
The above limitations on disclosure of StoresOnline Proprietary
Information shall not apply to information which becomes publicly available
through no act of Distributor, is released by StoresOnline in writing with no
restrictions, is lawfully obtained by Distributor without breach of this
Agreement from third parties without obligations of confidentiality, is
previously known by Distributor without similar restrictions as shown by
documents in its possession prior to disclosure by StoresOnline or is
independently developed by Distributor.
f. COMPLIANCE WITH LAW. Distributor shall comply with all applicable
law the violation of which would have a material adverse effect on StoresOnline
or its business, including, without limitation, the export control laws of the
United States of America and prevailing regulations which may be issued from
time to time by the United States Department of Commerce and any export control
regulations of the United States and those countries involved in transactions
concerning the exporting, importing and re-exporting of Services purchased under
application of these terms and conditions. Distributor shall also comply with
the United States Foreign Corrupt Practices Act and shall indemnify StoresOnline
from violations of such act by Distributor. This provision shall survive any
termination or expiration of the Agreement.
g. EXERCISE OF REMEDIES. Any delay or omission by either party to
exercise any right or remedy under this Agreement shall not be construed to be a
waiver of any such right or remedy or any other right or remedy hereunder.
h. LIMITATION OF LIABILITY. NEITHER PARTY HERETO SHALL BE LIABLE TO THE
OTHER FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES DUE TO
FAILURE TO PERFORM ITS OBLIGATIONS HEREUNDER.
i. HEADINGS. Headings contained in this Agreement are for convenience
only, are not a part of this Agreement, and do not in anyway interpret, limit or
amplify the scope, extent or intent of this Agreement or any of the provisions
hereof.
j. REGULATORY APPROVAL. Distributor warrants that the Services and the
Malls, when utilized with its own products, will comply with all applicable
industry and governmental standards and requirements. StoresOnline assumes no
responsibility or liability for these governmental and regulatory standards or
requirements, which liability and responsibility is assumed entirely by
Distributor. Upon request, StoresOnline will provide copies of regulatory
approvals to Distributor.
k. BRANDING; COPYRIGHT PROTECTION. StoresOnline shall have the right
to place a "Powered by Netgateway in association with XxxXxxxXxx.xxx" or
"Powered by StoresOnline in association with XxxXxxxXxx.xxx" byline in a
prominent mutually agreed upon location on each storefront site. Each screen
of the Malls shall display a prominent copyright notice protecting against
third party usage in a manner to be determined by the agreement of the
parties. The parties hereto agree that all copyright interests shall be
determined as a matter of law and the placement or absence of a copyright
notice shall not be an acknowledgement as to the ownership of a copyright
interest as between the parties. In the case of Malls with screens or pages
designed by or paid for by Distributor, Distributor shall retain rights to
such screens or pages. With respect to any such Mall, Distributor shall be
responsible for all content to be included in such Mall including, without
limitation, legal disclaimers and other information; provided, however, that
StoresOnline may license to Distributor all such content so long as proper
attribution is made on the Mall as to such license and the ownership interest
in any such content. Notwithstanding the absence of any copyright notice of
Stores Online on Distributor's Malls, in the case of layouts or screens the
copyrights of which belong to Stores Online, Distributor hereby recognizes
StoresOnline's ownership of such copyrights, including any Mall layouts
belonging to Stores Online that do hold such copyright notices.
l. PUBLICITY. StoresOnline (or its parent company, Netgateway, Inc.)
shall have the right to inform its customers and the public that StoresOnline
has entered into this Agreement with Distributor. Each party may use the
other's name or the name of its customers in marketing the Services and the
development of the Malls and may link to each other's websites, but neither
party will perform any actions which will harm the other's or its customers name
and reputation.
m. NOTICES. Any notice required in connection with this Agreement
shall be given in writing and shall be deemed effective upon personal delivery
or three business days after deposit in the United States mail, registered or
certified, postage prepaid and addressed to the party entitled to such notice at
the address indicated below such party's signature line on this Agreement or at
such other address as such party may designate by ten (10) days' advance written
notice to the other party. All facsimile notices shall be confirmed by written
notice mailed, as provided above, within five (5) days of the date of the
facsimile is sent. Once confirmed, the notice shall be effective as of the date
of the facsimile.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to
be effective as of the date set forth herein.
XXXXXXXXXXXX.XXX, INC., A CALIFORNIA CORPORATION
By /s/ Xxxxx Xxxxxxx-Xxxxxxx
-------------------------------------------------
Name: Xxxxx Xxxxxxx-Xxxxxxx
---------------------------------------
Its: COO
---------------------------------------
Address for Notices:
000 Xxxxxxxxx, Xxxxx 000
Xxxx Xxxxx, XX 00000
(000) 000-0000
NETGATEWAY, A NEVADA CORPORATION
By /s/ Xxxxx Basset-Xxxxxxx
------------------------------------------------
Name: Xxxxx Basset-Xxxxxxx
---------------------------------------
Its: COO
---------------------------------------
Address for Notices:
000 Xxxxxxxxx, Xxxxx 000
Xxxx Xxxxx, XX 00000
(000) 000-0000
BUYSELLBID, INC., A DELAWARE______ CORPORATION
By /s/ Xxx X. Xxxxxxx
--------------------------------------------------
Name: Xxx X. Xxxxxxx
---------------------------------------
Its: Chief Executive Officer
---------------------------------------
Address for Notices:
Address: 000 00xx Xxx.
Xxxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
E-mail Address: xxxxxxxx@xxxxxxxxxx.xxx
Company URL: xxxxxxxxxx.xxx
Sales Representative: Xxxxxx Xxxxxxx xxxxxx@xxxxxxxxxx.xxx
Technical Contact: Xxxxxxx Xxxxxxx
Telephone: 000-000-0000 xxx 000
E-mail Address: xxxxxxxx@xxxxxxxxxx.xxx
ADDENDUM
NAME OF DISTRIBUTOR XxxXxxxXxx.xxx, Inc.
---------------------------
TYPE OF ENTITY: Delaware Corp.
-------------------------
DATE OF AGREEMENT: 8-25-99
----------------------
DESCRIPTION OF DISTRIBUTOR'S BUSINESS: Distributes malls to radio/t.v. stations
----------------------------------------
[**REDACTED**]
MALL DEVELOPMENT SERVICES AND PRICES
1. DEVELOPMENT. StoresOnline shall design and develop one or more
on-line Malls, to be branded around the name, brand and image of each of
Distributor's reseller media partners. The Malls will include appropriate URL
addresses, four to six featured products and stores from various
Distributor/reseller and third party advertisers, additional
Distributor/reseller and non-Distributor/non-reseller advertiser stores and
products catalogued with text references, and links to top-tier eCommerce sites.
The Malls will also include an appropriate search engine, commerce
functionality, banner and other appropriate advertising space and such other
features as the parties shall mutually agree. The Malls will be capable of
cataloguing stores independently or in conjunction with all other Malls
developed hereunder, if any, as well as other malls which belong to the
StoresOnline electronic mall network. Distributor agrees and understands that
the storefronts of all end-user customers may be placed in one or more
electronic malls developed and/or operated by StoresOnline.
[**REDACTED**]
3. ADDITIONAL DESIGN WORK. Any additional design work that is not
covered by this Agreement but required by a particular reseller in connection
with the development of on or more of the Malls shall be bid by StoresOnline,
and StoresOnline shall not be required to complete any such work unless its bid
has been accepted in writing by reseller.
EXHIBIT A
STANDARD LICENSE AGREEMENT TERMS
1. LICENSE. This License allows you to use any software associated
with the provision of the Services.
2. RESTRICTIONS. You may not use, copy, modify or transfer the
program, or any copy, modification or merged portion, in whole or in part,
except as expressly provided for in this License. If you transfer possession of
any copy, modification or merged portion of the program to another party, your
License is automatically terminated.
3. TERM. The License is effective until terminated. You may
terminate it at any other time by notifying Distributor of your intent to do so.
The License will also terminate upon the occurrence of certain events set forth
elsewhere in this Agreement. Upon such termination, you agree to destroy the
program together with all copies, modifications and merged portions in any form.
4. EXPORT LAW ASSURANCES. You agree that neither the pogrom nor any
direct product thereof is being or will be shipped, transferred or re-exported,
directly or indirectly, into any country prohibited by the US Export
Administration Act and the regulations thereunder or will be used for any
purpose prohibited by the Act.
5. LIMITED WARRANTY. The program is provided "AS IS" without
warranty of any kind, either expressed or implied, including, but not limited
to, the implied warranties of merchantability and fitness for a particular
purpose. The full text of the warranty is provided in the user manual.
6. LIMITED LIABILITY. In no event will StoresOnline be liable to you
for any damages, including any lost profits, lost savings or other incidental or
consequential damages arising out of the use of inability to use such program
even if StoresOnline has been advised of the possibility of such damages, or for
any claim by any other party.
7. GENERAL. If you are a Government end-user, this License conveys
only "RESTRICTED RIGHTS," and in its use, disclosure and duplication are subject
to Federal Acquisition Regulations, subparagraph (c)(1)(11) 52.227-7013. (See
U.S. Government End-User provisions in manual.) This License will be construed
under the laws of the State of California, except for that body of law dealing
with conflicts of law. If any provision of the License shall be held by a court
of competent jurisdiction to be contrary to law, that provisions shall be
enforced to the maximum extent permissible, and the remaining provisions of this
License shall remain in full force and effect.
