Exhibit 10.16
English Translation
CONFIDENTIAL TREATMENT REQUESTED BY GMARKET INC. CONFIDENTIAL PORTIONS OF THIS
DOCUMENT HAVE BEEN REDACTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION.
CO-PROMOTION AND MARKETING SERVICE AGREEMENT
By and Between
Gmarket Inc.
And
Korean Click Co., Ltd.
Dated July 13, 2004
AGREEMENT
CHAPTER 1 GENERAL PROVISIONS
ARTICLE 1 (PURPOSE)
The purpose of this Agreement is to set forth the terms of use and procedures
for xxx.xxxxxxx.xx.xx, the internet site operated by Gmarket Inc. ("Gmarket"),
to use the co-promotion and marketing service (the "Service") provided on the
co-promotion and marketing network site of Korean Click Co., Ltd. ("Korean
Click") (xxx.xxxxxxxxx.xxx).
ARTICLE 2 (DEFINITIONS)
The terms used herein shall be defined as follows:
(1) "Service" means services implementing internet advertising and
distribution of the of goods of Gmarket through the co-promotion and
marketing network site of Korean Click (xxx.xxxxxxxxx.xxx).
(2) "Subscriber" means a person who has registered for the Service of
Korean Click to post on his or her website, or publicize to his or her
members, advertisements received by Korean Click and share the profits
therefrom with Korean Click. Any individual, group or corporation may
become the Subscriber, and the Subscriber shall receive an agreed
consideration for its performance from Korean Click.
(3) "Visitor" means a general internet user who conducts commercial
transactions or otherwise uses the internet services on the site of an
advertising sponsor enlisted by Korean Click via various advertising
promotion routes on the Subscriber's website.
(4) "Commission" means the amount to be paid by Gmarket under Article 3
hereof.
CHAPTER 2 TERMS AND CONDITIONS OF AGREEMENT
ARTICLE 3 (COMMISSION AND PROMOTION)
(1) The payment terms of the Commission shall be determined by
consultation between Gmarket and Korean Click, and during the term of
the Service, the
1
payment terms of the Commission may be amended by consultation between
Gmarket and Korean Click.
(2) The Commission to be paid by Korean Click to the Subscriber shall be
paid in accordance with the terms of advertisement set forth on the
website of Korean Click, and at Korean Click's discretion, based on
the size, classification (corporation/sole proprietorship/individual)
and performance of the Subscriber.
(3) During the Service, if Gmarket proceeds with a separate promotion
targeted at the Subscribers, Korean Click shall be responsible for
planning and operation of the promotion, and Gmarket shall pay [****]
of the promotion expenses to Korean Click.
(4) The Commission and all expenses to be paid by Gmarket to Korean Click
shall be calculated and charged on a VAT exclusive basis.
ARTICLE 4 (INITIAL SET UP OF SYSTEM AND ANNUAL MEMBERSHIP FEE)
(1) Gmarket shall agree to install a program provided by Korean Click into
its own system in order to use the Service, or agree to modify the
existing program with the confirmation of Gmarket, and upon
termination of this Agreement, it shall delete or modify the program
provided.
(2) The program in Paragraph (1) above may not be arbitrarily modified or
deleted without consent of Korean Click. In addition, Korean Click
may, if necessary, order a test for maintenance of the program in
Paragraph (1) above, and request from Gmarket for confirmation
purposes, information on the routine concerning the program in
Paragraph (1) above or any existing program, in which case, Gmarket
shall fully cooperate with Korean Click.
(3) Gmarket shall provide Korean Click with the relevant source codes
modified at the time of initial setting of the system to maintain,
repair and manage the system setting. Korean Click shall keep such
source codes confidential and destroy such data upon termination of
this Agreement.
[****] = MATERIAL OMITTED: CONFIDENTIAL TREATMENT HAS BEEN REQUESTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
2
(4) For mutually fair measurement and comparison of performance through
the system setting, Gmarket shall record and keep in a separate log
file in the system of Gmarket information on performance arising from
a Subscriber immediately before the information on performance is
transmitted online to the system of Korean Click, and upon the request
of Korean Click, it shall provide such information to Korean Click.
(5) For installation of the program provided by Korean Click and
utilization of the Service, Gmarket shall pay on the 5th day of each
month [****] Korean Won ([****] Korean Won in the case of annual
payment) to Korean Click.
(6) The link registered on the site of Korean Click may not be arbitrarily
modified or deleted during the term of operation of the program, and
in the case of termination of the program, it shall be notified to the
Subscriber fifteen (15) days prior to the termination (provided,
however, that, the link may be modified or deleted at any time with
the consent of all Subscribers who linked the site).
CHAPTER 3 FORMATION AND TERM OF AGREEMENT
ARTICLE 5 (FORMATION OF AGREEMENT)
This Agreement shall be deemed to have been formed at the time when the Service
commences after signing and exchange of counterparts.
ARTICLE 6 (TERM OF AGREEMENT)
The term of this Agreement shall be one (1) year from the execution of this
Agreement, and this Agreement shall be deemed to be renewed on the same terms
and conditions, unless either party notifies otherwise within one (1) month
prior to the expiration of the term hereof.
----------
[****] = MATERIAL OMITTED: CONFIDENTIAL TREATMENT HAS BEEN REQUESTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
3
CHAPTER 4 OBLIGATIONS OF THE PARTIES
ARTICLE 7 (OBLIGATIONS OF GMARKET)
(1) In using the Service, if Gmarket falls under any of the following
cases, Gmarket shall be deprived of its status as a party hereto, and
Korean Click may terminate this Agreement after giving notice to
Gmarket, and claim damages for the breach of this Agreement against
Gmarket:
1) If Gmarket uses the ID of another contractor in an illegal
manner;
2) If Gmarket discloses or distributes any information obtained from
the Service to a third party without prior permission of Korean
Click;
3) If Gmarket infringes on the intellectual property rights
including copyrights or other rights of Korean Click and a third
party;
4) If Gmarket distributes to a third party any information,
sentence, diagram, or others that violate public order and good
morals of society;
5) If it is objectively determined that Gmarket is involved in a
crime;
6) If Gmarket fails to pay the Commission for two months or more;
7) If, during the term hereof, Gmarket directly provides
co-promotion and marketing services to the Subscriber of Korean
Click;
8) If an order of attachment or a notice of attachment due to
default in payment is sent to Gmarket, or other compulsory
execution or disposition on default in payment commences;
9) If a petition for commencement of bankruptcy, composition or
corporate reorganization proceeding is filed, or an application
for entry in the list of defaulting persons is submitted;
10) If Gmarket receives a tax notice concerning any taxes and public
charges prior to the due dates thereof, or a clearing house has
rendered a disposition of suspension of transactions;
11) If payment is deemed suspended due to business closure, flight,
or other reasons;
12) If Gmarket has otherwise breached the terms of use of the
operator including this Agreement;
13) In the event of any violation of relevant laws; or
14) In the event of any evident wrongful act.
(2) Gmarket shall comply with the matters provided herein, the guidelines
for using
4
the Service or other cautionary provisions.
(3) After the Service commences, Gmarket shall notify whether to approve
or reject the application for admission of the Subscriber within three
(3) business days from the application date.
(4) Gmarket may not transfer, lease or otherwise dispose of its rights to
use the Service, or other status hereunder to a third party.
(5) If returns of goods or cancellation of the Service are significantly
increased compared with customary practice in the industry, Korean
Click may request Gmarket to provide supporting evidence thereof, and
Gmarket shall comply with such request in good faith.
ARTICLE 8 (OBLIGATIONS OF KOREAN CLICK)
(1) Korean Click shall use its best efforts so that the Service can be
implemented smoothly and stably.
(2) In providing Gmarket with the Service, if Korean Click falls under any
of the following cases, Gmarket may terminate this Agreement after
giving notice to Korean Click, and Korean Click shall be obligated to
refund to Gmarket the remaining balance of the total contracted amount
(expenses for initial setting of the system and annual membership
fees) less the payable amount for the period during which Service has
been provided:
1) If Korean Click discloses or distributes any information obtained
from the Service to a third party without prior permission of
Gmarket;
2) If an order of attachment or a notice of attachment due to
default in payment is sent to Korean Click, or other compulsory
execution or disposition on default in payment commences;
3) If a petition for commencement of bankruptcy, composition or
corporate reorganization proceedings is filed, or an application
for entry in the list of defaulting persons is submitted;
4) If Korean Click receives a tax notice concerning any taxes and
public charges prior to the due dates thereof, or a clearing
house has rendered a disposition of suspension of transactions;
5) If payment is deemed to be suspended due to business closure,
flight, or other reasons;
6) If Korean Click has violated relevant laws in relation to
operation of the Service; or
5
7) In the event of any wrongful act in relation to the terms and
conditions of this Agreement.
(3) Korean Click shall use its best efforts to prevent any wrongful or
illegal act of a third party including the Subscriber, and shall
cooperate with Gmarket to settle any matter concerning such wrongful
or illegal act of the Subscriber.
(4) Korean Click shall not divulge or distribute to a third party any
personal information of Gmarket acquired through the provision of the
Service without the permission of Gmarket, except as requested by
governmental authorities under relevant laws.
(5) Korean Click shall be obligated to accurately trace the performance
arising on the website of Gmarket and notify it to Gmarket in
accordance with the principle of good faith, so that the Commission
may be fairly settled.
(6) Korean Click may provide Gmarket with information and consulting
services for increasing profits of Gmarket by s separate agreement, if
Gmarket desires to do so.
(7) Korean Click shall comply with relevant laws, and in the event of
violation, it shall be deprived of its status as a party hereto.
CHAPTER 5 USE OF SERVICE
ARTICLE 9 (MANAGEMENT OF ID AND PASSWORD)
(1) Any accountable person shall be responsible for management of the ID
and password assigned to Gmarket.
(2) If Gmarket becomes aware that its ID has been used in an illegal
manner, it shall immediately notify the fact to Korean Click.
ARTICLE 10 (PROVISION OF INFORMATION)
Korean Click may provide to Gmarket by e-mail or other means various information
that it finds necessary for Gmarket in using the Service, but if Gmarket does
not wish to receive such information, it may set on the refuse option in the
subscription admission menu and the information modification menu.
ARTICLE 11 (GMARKET'S POSTINGS)
If Korean Click finds that the contents of the Service posted or registered by
Gmarket on the website of Korean Click fall under any of the following cases,
Korean Click may
6
delete them after giving prior notice to Gmarket:
(1) If the contents are defamatory or insulting to other contractor or
other person;
(2) If the contents are in violation of public order and good morals;
(3) If the contents are found to relate to a criminal act;
(4) If the contents infringe on copyrights or other rights of Korean Click
or a third party;
(5) If the contents are being posted beyond the posting period as provided
by Korean Click;
(6) If the contents contain obscene materials or a link to an obscene
site; or
(7) If the contents otherwise violate relevant laws.
ARTICLE 12 (COPYRIGHTS TO POSTINGS)
The rights to materials posted in connection with the Service shall be as
follows:
(1) The person who has posted any material shall have rights to and
responsibility for the postings and Korean Click may not use such
postings for commercial purposes, other than posting them in
connection with the Service, without the consent of the person who has
posted them.
(2) Gmarket may not process or distribute the information obtained in
connection with the Service, or use them for commercial purposes.
ARTICLE 13 (RESPONSIBILITY FOR USE OF SERVICE)
Gmarket may not sell illegal goods by using the Service. In particular, Gmarket
may not engage in hacking, commercial activities via obscene websites, illegal
distribution of commercial software, etc. Korean Click shall not be responsible
for any result, losses, damages, lawsuits, complaints, judicial dispositions by
relevant authorities or other legal actions arising out of a failure to comply
with the above provisions.
ARTICLE 14 (TIME FOR USE OF SERVICE AND SUSPENSION OF SERVICE)
(1) Unless there is any special business or technical difficulty on the
part of Korean Click, in principle, the Service may be used 24 hours a
day, year round, except for such date or time as designated by Korean
Click in advance, to the extent necessary for regular inspection,
technical inspection and change of Service, etc.
(2) Gmarket may suspend the Service in any of the following events:
1) If it is inevitable due to work such as repair of software and
equipment for the Service;
7
2) If a telecommunications business operator as provided in the
Telecommunications Business Act has suspended the provision of
telecommunications services; or
3) In the event of other force majeure events.
ARTICLE 15 (HANDLING OF VISITOR)
With respect to the Visitor who accessed the site of Gmarket though the Service
of Korean Click, all activities relating to sales, including all procedures from
placement of an order, settlement of purchase prices, return of goods and after
sales services, to visitor relations services, shall be handled on the
responsibility of Gmarket, and Gmarket shall be solely responsible for all
matters arising out of the handling procedures.
ARTICLE 16 (INFORMATION ON PERFORMANCE)
The adding up of the performance arising from the Service of Korean Click on the
website of Gmarket shall be based on the performance as shown on the site of
Korean Click, xxx.xxxxxxxxx.xxx.
ARTICLE 17 (PAYMENT OF COMMISSION AND DELAY DAMAGES)
(1) With respect to the performance report arising out of this Agreement
with Korean Click (performance electronically processed through the
site xxx.xxxxxxxxx.xxx), Gmarket shall pay Korean Click the Commission
under Article 3 hereof.
(2) The Commission shall be paid on a monthly basis, in principle, and
shall be based on the total amount of charges in the report of Korean
Click, as fixed by the 26th day of the month immediately following the
month in which the Commission has arisen according to the report.
(3) Korean Click shall notify Gmarket by e-mail, etc., of the performance
for a given month on the 1st day of the month immediately following
the month in which the performance has occurred. Unless there is a
separate agreement on the due date with Korean Click, Gmarket shall
pay Korean Click the Commission fixed pursuant to Paragraph (2) above
in cash by the 5th day of the month after the month immediately
following the month (or the next day, if the day falls on a holiday)
in which a cancellation or return was handled.
(4) If Gmarket fails to pay the Commission charged within the due date,
Gmarket
8
shall additionally pay Korean Click delay damages thereon at the rate
of 20% per annum (the default interest rate) on a pro rata daily basis
(the default interest rate may be amended by agreement between Gmarket
and Korean Click thereafter).
ARTICLE 18 (LOGO)
Gmarket and Korean Click may indicate their affiliation on their respective
websites by using logos.
CHAPTER 6 OTHERS
ARTICLE 19 (DAMAGES)
Gmarket and Korean Click shall be liable to the other party for any material and
monetary damage incurred by the other party due to causes attributable to
itself.
ARTICLE 20 (ORDER OF APPLICATION OF PAYMENT)
If Gmarket fails to pay the Commission, delay damages and other expenses in
full, the amount paid shall be applied toward payment of delay damages, other
expenses and then, the Commission, in the order stated.
ARTICLE 21 (SET-OFF)
(1) If Gmarket is required to perform obligations to Korean Click due to
maturity or obligations to make repayments prior to maturity, Gmarket
may set off such obligations against all claims payable by Korean
Click to Gmarket by a notice via e-mail, etc., regardless whether the
claims have matured or not.
(2) In the case of set-off pursuant to Paragraph (1) above, delay damages
on the Commission shall be calculated for the period until the date on
which the set-off is to occur by Korean Click.
ARTICLE 22 (REPORT OF CHANGES)
(1) Gmarket shall accurately indicate on its site its name, trade name,
representative, address, etc. necessary for the transaction in the
form as determined by Korean Click.
(2) If there is any change in the matters set forth in Paragraph (1)
above, Korean Click shall immediately report on the site the change in
the form as determined
9
by Korean Click. Gmarket shall have no objection to assuming no change
until such change report is made, and Gmarket shall be responsible for
any damage arising out of such assumption, without raise any claim
against Korean Click.
ARTICLE 23 (EFFECT OF NOTICE)
(1) If a notice is sent by e-mail, etc. to the final address as reported
by Gmarket (an e-mail address or an address at which mail can be
received), notice shall be deemed to have been delivered following
general mailing period.
(2) A recipient shall at all times confirm whether or not an e-mail has
been delivered, and the sender's responsibility shall have been
discharged upon sending the e-mail.
ARTICLE 24 (OTHERS)
Matters not provided herein shall be determined in accordance with the
provisions of the Framework Act on Telecommunications, the Telecommunications
Business Act and other relevant laws.
ARTICLE 25 (EXEMPTIONS)
(1) If Korean Click is unable to provide the Service due to natural
disasters or other similar force majeure events, or temporary
suspension of the Service arising out of technical problems, Korean
Click shall be exempted from responsibility of provision of the
Service.
(2) Korean Click shall not be responsible for any disorder in the Service
due to causes attributable to Gmarket.
(3) Korean Click shall not be responsible for any loss of profits expected
by Gmarket by using the Service, and shall not be responsible for any
other damage incurred by Gmarket arising from any materials obtained
through the Service.
(4) Gmarket shall be responsible for the reliability and accuracy of the
information, materials and facts posted by Gmarket.
(5) Korean Click shall not be responsible for any wrongful or illegal act
or activities of a third party including any Visitor.
ARTICLE 26 (JURISDICTION)
With respect to any dispute arising out of the use of the Service, Gmarket and
Korean Click shall use their best efforts to resolve the dispute by mutual
consultation, and any
10
lawsuit relating thereto shall be subject to the jurisdiction of the Seoul
Central District Court.
As both parties have no objection to the foregoing, the parties hereto have
hereunto written their names and affixed their seals as follows, and each party
shall keep one copy of this Agreement:
April 13, 2004
Gmarket
6th Fl., Nam Seoul Bldg., 0000-0 Xxxxxx-xxxx, Xxxxxx-xx, Xxxxx
Xxxxxxx, Inc.
Representative Director Young Bae Ku (seal)
Korean Click
3rd Fl., Xxxxxx Xxxx., 000 Xxxxxx-xxxx, Xxxxxxx-xx, Xxxxx
Xxxxxx Click Co., Ltd.
Representative Director Xxx Xxxxx Park (seal)
11
