MARKETING AGREEMENT ("Services Agreement")
THIS AGREEMENT, dated as of May 21, 1999, is made and entered into by
and between XXXXXX INTERACTIVE CORP., a New York corporation with its office at
000 Xxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Xxxxxxxx.xxx"), and
STAPLES, INC., a Delaware corporation with its principal offices located at 000
Xxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000 ("Staples").
WHEREAS, Xxxxxxxx.xxx engages in the business of domain name
registration and registrar services on the Internet ("Services");
WHEREAS, Staples and, through its web site, Xxxxxxx.xxx, are engaged in
the business of selling Office Supplies (as defined in Section 2 below);
WHEREAS, all mentions of Permanent ("permanent" or "Permanent")
placement in the Marketing Agreement in Exhibit A attached hereto shall remain
only in effect during the duration of this Agreement;
WHEREAS, Staples and Xxxxxxxx.xxx desire to enter into this Agreement
whereby Xxxxxxxx.xxx will be the exclusive provider of Internet domain name
registrar and registration Services on Xxxxxxx.xxx's web site as set forth in
this Agreement, and Staples will be the exclusive provider of Office Supplies
that are advertised or promoted on Xxxxxxxx.xxx's web site as set forth in this
Agreement;
NOW, THEREFORE, in consideration of mutual promises and covenants of
the parties hereinafter set forth, the receipt and sufficiency of which are
hereby acknowledged, Xxxxxxxx.xxx and Staples mutually agree as follows:
1. Grant of Exclusive Rights to Xxxxxxxx.xxx. During the Term (as defined in
Section 4 below), Staples grants to Xxxxxxxx.xxx the exclusive right to market
and solicit the Services across all of Staples' branded properties, including,
but not limited to, Xxxxxxx.xxx's web site and the Staples retail stores.
Staples shall promote and advertise the Services in the scope and manner
specified in Exhibit A attached hereto. In furtherance of, but in no way
limiting, the foregoing, Staples covenants and agrees that, during the Term, it
will not enter into any agreement with any company engaged in the business of
registration Services whereby such company shall have the right to (i) advertise
such Services on Xxxxxxx.xxx web site or in Staples' retail stores in any manner
whatsoever, or (ii) form a partnership, strategic or otherwise, with Xxxxxxx.xxx
or with Staples. During the Term, Staples shall not enter any marketing
agreements similar to those described herein with [***] of [***] include [***]
and [***] services, including but not limited to, [***] and any [***] or [***]
thereof.
2. Grant of Exclusive Rights to Staples. During the Term, Xxxxxxxx.xxx grants to
Staples the exclusive right to market and solicit Office Supplies on
Xxxxxxxx.xxx's web site. Xxxxxxxx.xxx shall promote and advertise such Office
Supplies in the scope and manner specified in Exhibit A attached hereto. In
furtherance of, but in no way limiting, the foregoing, Xxxxxxxx.xxx covenants
and agrees that, during the Term, it will not enter into any agreement with any
company engaged in the business of Office Supplies whereby such company shall
have the right to (i) advertise on Xxxxxxxx.xxx's web site in any manner
whatsoever or (ii) provide Office Supplies to Xxxxxxxx.xxx's customers. During
the Term, Xxxxxxxx.xxx shall not enter any marketing agreements similar to those
described herein with any entity that [***] of its [***] from [***]. For
purposes of this Agreement, the term "Office Supplies" means office supplies
other than computer equipment, business services (including, but not limited to,
printing services), software, furniture, and business machines. Prohibited
companies include, but are not limited to, [***] and any [***] or [***] thereof.
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*** Represents material that has been redacted pursuant to a request for
confidential treatment pursuant to Rule 406 under the Securities Act of
1933, as amended. Omitted material for which confidential treatment has been
requested has been filed separately with the Securities and Exchange
Commission.
3. Promotion. During the Term, Staples and Xxxxxxxx.xxx agree to promote each
other's services and products as provided on Exhibit A attached hereto.
4. Term. The Term of this Agreement shall commence on June 1, 1999 and shall
continue until May 31, 2002. The initial Term of this Agreement shall
automatically be extended for additional, consecutive one (1) year periods,
unless either party gives written notice to the other party at least sixty (60)
days prior to the expiration of the then-current Term of its intention not to
extend such Term.
5. Notices. Any notice required to be given by a party hereunder shall be given
in writing and delivered personally or shall be sent by certified mail, return
receipt requested, to the other party at the addresses hereinabove set forth or
at such other addresses as a party hereunder may hereafter notify the other of
in such manner. Any notices sent by certified mail shall be deemed given on the
day such notice is mailed.
6. Assignment. All of the terms of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns. No party may assign this Agreement or any of its rights,
interests or obligations hereunder without the written consent of the other
party hereto.
7. Governing Law. This Agreement shall be construed according to the laws of the
State of New York and all actions and disputes hereunder shall be brought in the
state or federal courts of New York.
8. Agency. Except as Staples may be specifically authorized in writing by
Xxxxxxxx.xxx, nothing herein contained shall be construed as authorizing Staples
to bind Xxxxxxxx.xxx in any way nor as constituting Staples an agent or
representative of Xxxxxxxx.xxx. Except as Xxxxxxxx.xxx may be specifically
authorized in writing by Staples, nothing herein contained shall be construed as
authorizing Xxxxxxxx.xxx to bind Staples in any way nor as constituting
Xxxxxxxx.xxx as an agent or representative of Staples.
9. Entire Agreement. This Agreement, including the Exhibits referred to herein
and attached hereto, constitutes and contains the entire understanding between
the parties hereto with respect to the subject matter hereof, supersedes the
Investment and Marketing Agreement dated May 17, 1999, between the parties
(including Exhibit B thereto) to the extent such Agreement (including Exhibit B
thereto) affects the subject matter hereof, and cannot be amended, modified or
waived except in writing signed by the parties hereto.
10. Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original, but all of which taken together
shall constitute one and the same Agreement.
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11. Indemnification by Xxxxxxxx.xxx. Xxxxxxxx.xxx represents that it has full
authority to enter into this Agreement and to perform its obligations hereunder.
Xxxxxxxx.xxx further represents that it has the right to publish the contents of
any promotions or advertisements provided by Xxxxxxxx.xxx to Staples for
promotion or advertisement hereunder, without infringement of any rights of any
third party. Xxxxxxxx.xxx shall, at its own expense, indemnify, defend and hold
harmless Staples, its employees, representatives, agents and affiliates
(including, without limitation, Xxxxxxx.xxx) from and against any liabilities
resulting from or arising out of any claim, suit, action, or other proceeding
alleging that the content provided by Xxxxxxxx.xxx to Staples hereunder,
including, without limitation, any material, data, or product produced or
provided by Xxxxxxxx.xxx or any material presented on any site on the Internet,
which is material produced, maintained, or published by Xxxxxxxx.xxx, infringes
in any manner any intellectual property right of any third party or contains any
material or information that is unlawful, obscene, defamatory, libelous,
slanderous, or that otherwise violates any rights of any person, including,
without limitation, rights of publicity, privacy or personality, or advertises
an illegal product or service, or has otherwise resulted in any tort, injury,
damage or harm to any person or entity. Xxxxxxxx.xxx will pay any and all costs,
damages, and expenses, including, but not limited to, reasonable attorneys' fees
and costs awarded against or otherwise incurred by Staples in connection with or
arising from any such claim, suit, action or proceeding. It is understood and
agreed that Staples does not intend and will not be required to edit or review
for accuracy or appropriateness the content of any material provided by
Xxxxxxxx.xxx to Staples hereunder. Xxxxxxxx.xxx agrees that is does not have any
right, title or interest, and agrees that it will not claim any, in or to the
name "Staples" or any other names, trademarks, logos or other indicia owned or
controlled by Staples, Inc., its subsidiaries and affiliates (the "Staples
Marks"). Xxxxxxxx.xxx acknowledges that this Agreement does not create or vest
in Xxxxxxxx.xxx any right, title or interest in the Staples Marks. Whenever
Xxxxxxxx.xxx uses any Staples Marks in connection with the promotional
activities, Xxxxxxxx.xxx shall clearly and prominently indicate Staples'
ownership of the Staples Marks in a form designated by Staples. All uses of the
Staples Marks shall inure to the benefit of Staples. This Section 11 shall
survive termination of this Agreement.
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12. Indemnification by Staples. Staples represents that it has full authority to
enter into this Agreement and to perform its obligations hereunder. Staples
further represents that it has the right to publish the contents of any
promotions or advertisements provided by Staples to Xxxxxxxx.xxx for promotion
or advertisement hereunder, without infringement of any rights of any third
party. Staples shall, at its own expense, indemnify, defend and hold harmless
Xxxxxxxx.xxx, its employees, representatives, agents and affiliates, harmless
from and against any liabilities resulting from or arising out of any claim,
suit, action, or other proceeding alleging that the content provided by Staples
to Xxxxxxxx.xxx hereunder, including, without limitation, any material, data, or
product produced or provided by Staples or any material presented on any site on
the Internet, which is material produced, maintained, or published by Staples,
infringes in any manner any intellectual property right of any third party or
contains any material or information that is unlawful, obscene, defamatory,
libelous, slanderous, or that otherwise violates any rights of any person,
including, without limitation, rights of publicity, privacy or personality, or
advertises an illegal product or service, or has otherwise resulted in any tort,
injury, damage or harm to any person or entity. Staples will pay any and all
costs, damages, and expenses, including, but not limited to, reasonable
attorneys' fees and costs awarded against or otherwise incurred by Xxxxxxxx.xxx
in connection with or arising from any such claim, suit, action or proceeding.
It is understood and agreed that Xxxxxxxx.xxx does not intend and will not be
required to edit or review for accuracy or appropriateness the content of any
material provided by Staples to Xxxxxxxx.xxx hereunder. Staples agrees that is
does not have any right, title or interest, and agrees that it will not claim
any, in or to the name "Xxxxxxxx.xxx" or any other names, trademarks, logos or
other indicia owned or controlled by Xxxxxx Interactive Corp., its subsidiaries
and affiliates (the Xxxxxx Marks). Staples acknowledges that this Agreement does
not create or vest in Staples any right, title or interest in the Xxxxxx Marks.
Whenever Staples uses any Xxxxxx Marks in connection with the promotional
activities, Staples shall clearly and prominently indicate Xxxxxxxx.xxx's
ownership of the Xxxxxx Marks in a form designated by Xxxxxxxx.xxx. All uses of
the Xxxxxx Marks shall inure to the benefit of Xxxxxxxx.xxx. This Section 12
shall survive termination of this Agreement.
13. Default. Either party may be declared in default of the Agreement if
(i) it breaches any material provision hereof and fails,
within thirty (30) days after receipt of notice of default, to
correct such default or to commence corrective action
reasonably acceptable to the other party and proceed with due
diligence to completion; or
(ii) it becomes insolvent, makes an assignment for the benefit
of creditors, a receiver is appointed or a petition for
bankruptcy is filed with respect to it and such proceeding is
not dismissed within sixty (60) days.
In the event of a default by any party as set forth above, the non-defaulting
party may then terminate this Agreement immediately and pursue all other
available remedies. In the event of a termination by Xxxxxxxx.xxx because of a
material breach of Section 3 hereof by Staples in accordance with the provisions
of clause (i) above, then, as its [***] and [***], Xxxxxxxx.xxx shall be
entitled to [***] from Staples [***] in the [***]. The right to receive and the
receipt of such [***] shall in no way limit the rights of Xxxxxxxx.xxx under
Section 12 or the right of Xxxxxxxx.xxx to pursue all available remedies for a
breach of any provision of this Agreement other than a breach of Section 3.
[Remainder of Page Intentionally Left Blank]
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*** Represents material that has been redacted pursuant to a request for
confidential treatment pursuant to Rule 406 under the Securities Act of
1933, as amended. Omitted material for which confidential treatment has been
requested has been filed separately with the Securities and Exchange
Commission.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first above written.
XXXXXX INTERACTIVE CORP.:
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
STAPLES, INC.:
By: /s/ Xxxxxx Xxxxxxxxx
--------------------------------
Name:
Title:
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Exhibit A.
Marketing Agreement
Xxxxxxxx.xxx Will Perform the Following:
[***] banners[***] impressions provided by Staples to be run on the register Web
Site;
[***] and [***] button and up to [***] in the [***] section of the register Web
Site;
[***] and [***] on the [***];
[***] in which [***] will be given the choice to receive a [***]. This [***] is
currently located for all [***] between [***] and [***] of the register Web
Site;
Staples will be included, both [***] and [***], on the [***] of the register Web
Site.
Staples Will Perform the Following:
A [***], possibly with a [***] (minimum of [***]) on the [***] of Staples Web
Site;
A [***] (minimum of [***]) along with a [***] for [***] in the [***] of Staples
Web Site, with placement to be included [***], in a manner [***] than [***] in
the Staples Web Site [***];
[***] banners [***] impressions provided by xxxxxxxx.xxx and to be run on
Staples Web Site;
Staples will include a [***] from xxxxxxxx.xxx in [***] to [***] of Staples,
with a minimum delivery to at least [***] per month;
Staples will include xxxxxxxx.xxx as a [***] in [***] in a manner [***] than
[***] wherever Staple's mentions their [***];
Staples will give away [***] with the [***] to all [***] as a part of the
standard [***] package. Staples and xxxxxxxx.xxx will share the expenses
resulting from the [***] of this item. Staples will take responsibility for all
costs incurred in [***] this product;
Staples will include a [***] from xxxxxxxx.xxx in no less than [***] brochures
about [***] and [***] at least [***] point of distribution in [***]. Staples
will provide Xxxxxxxx.xxx with [***] regarding the number of brochures required
for all of [***]. This brochure will feature [***] and be [***]. Staples will
design the brochure utilizing [***]. Staples and xxxxxxxx.xxx will share the
expenses for [***] and [***] costs. In the event that Staples and Xxxxxxxx.xxx
determine it to be appropriate to broaden the selection of [***] and [***] in
the brochure to include those of [***], Xxxxxxxx.xxx's share of the costs will
be reduced proportionately;
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*** Represents material that has been redacted pursuant to a request for
confidential treatment pursuant to Rule 406 under the Securities Act of
1933, as amended. Omitted material for which confidential treatment has been
requested has been filed separately with the Securities and Exchange
Commission.
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Staples will include xxxxxxxx.xxx on each [***], the [***] when they [***] in to
the [***]. This [***] will run [***] with other [***] no less than [***].
Xxxxxxxx.xxx will provide input into the [***] of the [***] for this [***];
Staples will [***] and [***] the [***];
Staples will include xxxxxxxx.xxx in no less than [***] and [***] as either a
[***] or [***]. Xxxxxxxx.xxx will provide [***] and [***] costs; Staples will
[***] and [***] materials;
Staples will use reasonable commercial efforts to cross-promote the Xxxxxxxx.xxx
Services with the sale of computer software, including, but not limited to
intent browsers. Xxxxxxxx.xxx will provide the text and logo and cover the
printing expenses; Staples will distribute all materials;
Staples will include xxxxxxxx.xxx in [***] or other [***] to its customer base
when appropriate. Staples will include xxxxxxxx.xxx in no less than [***] or
[***]. Xxxxxxxx.xxx will provide the [***] and [***] and cover the [***]
expenses; Staples will [***] the [***];
Staples will include xxxxxxxx.xxx in all [***] when applicable;
Staples will include a [***] from xxxxxxxx.xxx including [***] and a [***] to a
[***] on
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*** Represents material that has been redacted pursuant to a request for
confidential treatment pursuant to Rule 406 under the Securities Act of
1933, as amended. Omitted material for which confidential treatment has been
requested has been filed separately with the Securities and Exchange
Commission.
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[***] of all [***] to customers who are buying supplies at [***];
Staples will use reasonable commercial efforts to [***] with [***] to include
[***] as part of the [***] or in [***] activities.
Staples and Xxxxxxxx.xxx will mutually determine and provide for co-promotion of
other parties' services as follows:
Staples and Xxxxxxxx.xxx will use their future and existing marketing
relationships in order to help promote the sale of the other parties products
and services in a commercially reasonable manner.
To the extent that both parties believe that the specific programs listed above
are not performing on a commercially reasonable or acceptable basis both
parities will use commercially reasonable efforts to develop substitute programs
of comparable value. This analysis will be performed on a quarterly basis after
an initial three (3) month period.
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*** Represents material that has been redacted pursuant to a request for
confidential treatment pursuant to Rule 406 under the Securities Act of
1933, as amended. Omitted material for which confidential treatment has been
requested has been filed separately with the Securities and Exchange
Commission.
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Look and Feel:
All promotional and marketing materials, look, feel and/or user interface or
other content (including without limitation any banner advertising) must be
approved by both parties in writing. In the event either party substantially
changes its look, feel and/or user interface, it will use its reasonable efforts
to provide the other party with substantially similar promotion and
representation as indicated in this Exhibit A; provided that the other party
shall have the right to approve, in its sole discretion, such altered promotion
and representation.
