CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE
CONFIDENTIAL PORTIONS HAVE BEEN REDACTED AND ARE DENOTED BY [*]. THE
CONFIDENTIAL PORTIONS HAVE BEEN SEPARATELY FILED WITH THE SECURITIES AND
EXCHANGE COMMISSION.
This agreement ("Agreement") is entered into as of the 15th day of December,
1997 ("Effective Date"), by and between Excite, Inc., a California corporation,
located at 000 Xxxxxxxx, Xxxxxxx Xxxx, Xxxxxxxxxx 00000 ("Excite"), and
NetGrocer, Inc. a Delaware corporation, located at 000 Xxxxxxx xxxxxx, 00xx
Xxxxx, Xxx Xxxx, XX 00000 ("NetGrocer").
RECITALS
A. Excite maintains a site on the Internet at xxxx://xxx.xxxxxx.xxx (the
"Excite Site") and owns and/or manages related World Wide Web sites
worldwide (collectively, the Excite Site and the related web sites are
referred to as the "Excite Network") which, among other things, allow
its users to search for and access content and other sites on the
Internet.
B. Within the Excite Site, Excite currently organizes certain content
into topical channels, including a Shopping Channel.
C. NetGrocer operates an online supermarket service at its Web site
located at xxxx://xxx.xxxxxxxxx.xxx (the "NetGrocer Site").
D. NetGrocer wishes to promote use of the NetGrocer Site to Excite's
users by sponsoring the Excite Shopping Channel and purchasing banner
advertising and other promotional links on the Excite Site.
1. SPONSORSHIP
a) Excite will promote NetGrocer in the Excite Shopping Channel
as follows:
i) For the term of this Agreement, Excite will display
a text and/or graphic link (consistent with the
format used on similar links on the same page) to
the NetGrocer Site on the Excite Shopping Channel
main page.
ii) Excite will display a text and/or graphic link
(consistent with the format used on similar links on
the same page) to the NetGrocer Site in the home
page of the Excite Shopping Channel "Such a Deal"
promotion in four separate one-week segments during
each year of the term of the Agreement, once every
calendar quarter.
iii) Excite will display a text and/or graphic link
(consistent with the format used on similar links on
the same page) to the NetGrocer Site in the home
page of the Excite Shopping Channel "Shop Here
First" promotion in four separate one-week segments
during the term of the Agreement, once every
calendar quarter. Excite shall not display the link
under this Section 1 (a)(iii) in the same weeks as
the promotional link under Section 1 (a)(ii).
iv) For the term of the Agreement, Excite will display a
text and/or graphic link (consistent with the format
listed on similar links on the same page) to the
NetGrocer Site on the front page of the "Gourmet and
Groceries" department of the Excite Shopping
Channel.
v) Excite will display a text and/or graphic link
(consistent with the format used on similar links on
the same page) to the NetGrocer Site in the "Shop
Here First" promotion in the Gourmet and Groceries
department of the Excite Shopping Channel for the
term of the Agreement. Such link will be displayed
as the left-most link or top-most link at least
fifty percent (50%) of the time.
vi) Excite currently plans to develop a coupon promotion
area in the Excite Shopping Channel, tentatively
called "Coupon Corner". When launched, Excite will
display an advertising banner or text or graphic
link (consistent with the format used on similar
links on the same page) to the NetGrocer Site will
Coupon Corner for the remainder of the term of the
Agreement.
b) Excite will promote NetGrocer in the Excite Site as follows:
i) For the term of the Agreement, Excite will display a
link to the NetGrocer Site (consistent with the
format used on similar links on the same page) in
the default configuration of the "Favorite Links"
listing of Web sites on the home page of the Health
& Fitness and the Food & Drink departments of the
Lifestyle Channel, and the home page of the
Lifestyle Channel in the Excite Site.
ii) For the term of the Agreement, Excite will display a
text and/or graphic link (consistent with the format
used on similar links on the same page) to the
NetGrocer Site on the "Exciting Stuff' promotion on
the home page of the Lifestyle Channel and the home
page of the Food & Drink department of the Lifestyle
Channel in the Excite Site.
iii) Excite will display a text and/or graphic link
(consistent with the format used on similar links on
the same page) to the NetGrocer
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Site in the area reserved for promotional rotations
on the home page of the Excite Site for one week in
each year of the term of the Agreement.
iv) Excite will display NetGrocer's advertising banners
in the Lifestyle and Shopping Channels on the Excite
Site.
v) Excite will display a link (consistent with the
format used on similar links on the same page) to a
co-branded version of the NetGrocer Site in the
"Try, These First" area on Excite Search results
pages in response to mutually determined relevant
search terms. The co-branded version of the
NetGrocer Site will comply with Excite's
then-current standards applicable to third party
sites promoted through "Try, These First" links.
vi) For the term of the Agreement, Excite will display a
link to the NetGrocer Site (consistent with the
format used on similar links on the same page) in
the default configuration of the "services" or
comparable module on the default configuration of
the My Excite Channel.
c) Excite will display NetGrocer's advertising banners on Excite
Search results pages on the Excite Site in response to
mutually determined keywords, including the following:
NetGrocer, Peapod, Oncart, Shoppers Express, grocery,
groceries, women, female, disabled, senior, military, family,
baby, kids, children, pets, dogs, cats staples, supermarket,
drug store, and club store. Excite will work with NetGrocer
to develop a more extensive list of keywords and, when Excite
implements keyphrase advertising banners, Excite will
work-with NetGrocer to develop a mutually-determined list of
keyphrases.
d) For the term of the Agreement, Excite will display
NetGrocer's advertising banners in general rotation on the
Excite Site, on the MailExcite free email service and on
Excite's Internet chat service.
e) Excite will use reasonable commercial efforts to deliver [*]
"Impressions" of the promotional placements and advertising
banners described in Sections 1 (a) - (d) in the first year
of the term of the Agreement and to deliver [*] "Impressions"
of the promotional placements and advertising banners
described in Sections 1 (a) - (d) in the second year
of the term of the Agreement. For the purposes of this
Agreement, an "Impression" is defined as any link to the
NetGrocer Site, whether graphic, text or any combination of
graphic and text, served by Excite to a user as part of an
HTML page, part of the Excite's Internet chat service or part
of search results displayed in "Excite Shopping Service
powered by Jango".
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f) Excite guarantees that it will deliver [*] "Click-throughs" on
the promotional placements and advertising banners described
in Section 1 (a) - (d) in the first year of the term of the
Agreement by delivering [*] of the annual guaranteed
"Click-throughs" in the first quarter of the first year of
the term of the Agreement, a cumulative total of [*] of the
annual guaranteed "Click-throughs" in the second quarter of
the first year of the term of the Agreement, a cumulative
total of [*] of the annual guaranteed "Click-throughs" in
the third quarter of the first year of the term of the
Agreement and a cumulative total of 100% of the annual
guaranteed "Click-throughs" in the fourth quarter of the
first year of the term of the Agreement. Excite guarantees
that it will deliver four million fifty thousand (4,050,000)
"Click-throughs" on the promotional placements and
advertising banners described in Section 1(a) - (d) in the
second year of the term of the Agreement by delivering [*] of
the annual guaranteed "Click-throughs" in the first quarter
of the second year of the term of the Agreement, a cumulative
total of [*] of the annual guaranteed "Click-throughs" in the
second quarter of the second year of the term of the
Agreement, a cumulative total of [*] of the annual guaranteed
"click-throughs" in the third quarter of the second year of
the term of the Agreement and a cumulative total of 100% of
the annual guaranteed "Click-throughs" in the fourth quarter
of the second year of the term of the Agreement. For the
purposes of this Agreement, a "Click-through" occurs when a
user activates the link to the NetGrocer Site (the address or
addresses of which are provided by NetGrocer for such
Impression) contained in an Impression and (i) the activation
of the link to the NetGrocer Site is recorded by Excite's
servers or (ii) in the case of "Try These First" links only,
until Excite has the technical capability to count the
activation of "Try These First" links to the NetGrocer Site,
the user is referred to the NetGrocer Site through the
activation of a "Try These First' link and the referral is
recorded by NetGrocer's servers. Until Excite has the
technical capability to count the activation of "Try These
First" links to the NetGrocer Site, NetGrocer will report to
Excite the number of "Try These First" referrals it records
within twenty (20) days following the end of each calendar
month.
g) If Excite misses any quarterly guaranteed Click-through
amount, Excite will make good the difference within [*]
days following the end of such quarter. If Excite does
not make good the difference within [*] days, NetGrocer may
suspend (but not eliminate) its payments of the sponsorship
and advertising fees described in Section 5(b) and 5(c) until
the make-good is delivered, at which time NetGrocer will
resume its payments of the sponsorship and advertising fees.
h) Excite will use commercially reasonable efforts to maintain
the Excite Network and display the promotional placements and
advertising banners
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described in Section 1 (a) - (d) during the term of the
Agreement and to display the promotional placements and
advertising banners on the Excite Site in the following
proportions: [*] in the Shopping Channel, [*] in the other
targeted Channels and keyword banners and [*] in general
rotation.
i) The content and design of the advertising banners described
in Section 1(a) - (d) will be created by NetGrocer subject to
Excite's then-current standards applicable to advertising
banners.
j) Excite will provide account management support for
NetGrocer's sponsorship of the Excite Site. Excite and
NetGrocer will hold monthly review of the performance of the
promotional placements and advertising banners described in
Section 1 (a) - (d) and the sponsorship objectives.
2. LAUNCH DATE
a) The "Launch Date" is the date of the first display of the
promotional placements and advertising banners described in
Sections 1 (a) - (d). The parties intend that the Launch Date
will be December 15, 1997.
b) NetGrocer and Excite will use reasonable efforts to achieve
the scheduled Launch Date provided that, no later than
fourteen (14) days prior to the scheduled Launch Date,
NetGrocer provides final versions of all graphics, text,
keywords, banner advertising, promotional placements, other
promotional media and valid URL links necessary to implement
the promotional placements and advertising banners described
in Section 1 (a) - (dj (collectively, "Impression Material")
to Excite.
c) In the event that NetGrocer fails to provide the Impression
Material to Excite fourteen (14) days in advance of the
scheduled Launch Date, Excite may (i) reschedule the Launch
Date according to the availability of Excite's engineering
resources after delivery of the complete Impression Material
or (ii) commence delivery of Impressions based on Impression
Material in Excite's possession at the time.
d) NetGrocer may revise, update and/or replace the Impression
Material at any time in its sole discretion. Within three (3)
business days of Excite's receipt of any revised advertising
banners, Excite shall replace the former advertising banners
with the updated advertising banners. Text and/or graphics in
the "Exciting Stuff' and "Such A Deal" promotions may be
replaced with new text and/or graphics twice per month. All
other text links may be replaced with new text links once per
month.
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3. EXCLUSIVITY
a) For the term of the Agreement, Excite will not enter into any
agreement to display and shall not display on the Excite Site
content created by Excite promoting NetGrocer's
"Competitors", content created by NetGrocer's Competitors,
promotional placements and/or advertising banners from
NetGrocer's Competitors or make available on the Excite Site
online supermarket sales offered by NetGrocer's Competitors.
b) For the purposes of this Agreement, "Competitors" means
online supermarkets, which offer selections of consumer
packaged goods and groceries comparable to NetGrocer or
off-Web supermarkets, as listed in Exhibit A. The parties may
amend Exhibit A from time to time and Excite will not
unreasonably withhold its consent to the inclusion of bona
fide Competitors submitted by NetGrocer.
c) In the event of a dispute between the parties regarding the
inclusion or exclusion of an online supermarket from Exhibit
A or the display on the Excite Site of advertising or
promotional material from an online supermarket, the parties
will follow the dispute resolution process described in
Section 13(c) without the prerequisite of submitting the
dispute to mediation. In the event that it is determined that
Excite violated the Agreement by excluding a bona fide
NetGrocer Competitor from Exhibit A or displayed on the
Excite Site advertising or promotional material from a bona
fide NetGrocer Competitor, Excite will be obligated to (i)
immediately add the online supermarket to Exhibit A, (ii)
immediately remove from the Excite Site any advertising or
promotional material from the online supermarket and (iii)
provide NetGrocer with advertising and promotional value,
without additional cost, equal to the advertising and
promotional value provided to the online supermarket prior to
the removal of its advertising and promotional material from
the Excite Site.
d) Notwithstanding the foregoing, Excite may display Excite
Search results links to NetGrocer's Competitors in Excite
Search results pages in response to user queries, may display
links to NetGrocer's Competitors in Excite's general
directory of Web sites and, after giving NetGrocer reasonable
advance notice, in search results displayed in "Excite
Shopping Service powered by Jango". For the term of this
Agreement. Excite will display links to the NetGrocer Site as
search results displayed in "Excite Shopping Service powered
by Jango" for the categories for which NetGrocer carries
products until requested not to do so by NetGrocer.
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4. CUSTOMER INFORMATION
NetGrocer retains all right, title and interest to information
regarding customers who access the NetGrocer Site pursuant to the
Agreement.
5. SPONSORSHIP, ADVERTISING AND CLICK-THROUGH FEES
a) A one-time sponsorship initiation fee of [*] is due and will
be paid to Excite upon execution of the Agreement as
compensation for costs of initiating access to the Excite
Network, set-up costs and other expenses associated with
Excite's initiation of the links, placements, advertisements
and promotions contemplated by this Agreement.
b) Separate and apart from the one-time sponsorship initiation
fee NetGrocer shall pay to Excite sponsorship and advertising
fees for the first year of the term of the Agreement in the
total amount of [*] payable in nine equal monthly
installments of [*], commencing on March 15, 1998. NetGrocer
will pay the remainder of the monthly installments on or
prior to the fifteenth day of each of the next eight (8)
calendar months.
c) Separate and apart from the one-time sponsorship initiation
fee, NetGrocer shall pay to Excite sponsorship and
advertising fees for the second year of the term of the
Agreement in the total amount of [*] payable in equal monthly
installments of [*], commencing on December 15, 1998.
NetGrocer will pay the remainder of the monthly installments
on or prior to the fifteenth day of each of the next eleven
(11) calendar months.
d) Separate and apart from the one-time sponsorship initiation
fee and sponsorship and advertising fees, NetGrocer will pay
Excite [*] for each Click-through on the promotional
placements and advertising banners described in Section 1(a)
- (d) occurring during that year in excess of [*] during the
first year of the term of the Agreement. NetGrocer will make
these Click-through payments (if any) to Excite within thirty
(30) days of Excite's monthly report and invoice reflecting
Click-throughs during the first year of the term of the
Agreement in excess of [*]
e) Separate and apart from the one-time sponsorship initiation
fee and sponsorship and advertising fees, NetGrocer will pay
Excite [*] for each Click-through on the promotional
placements and
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advertising banners described in Section 1(a) - (d) in excess
of [*] occurring in the second year of the term of the
Agreement. NetGrocer will make these Click-through payments
(if any) to Excite with within thirty (30) days of Excite's
monthly report and invoice reflecting Click-throughs during
the second year of the term of the Agreement in excess of [*]
f) In its sole discretion, during the first year of the term of
the Agreement NetGrocer may elect to terminate the display of
its banner advertising on the Excite Network for the
remainder of the first year of the term of the Agreement once
the number of Click-throughs on the promotional placements
and advertising banners described in Section 1 (a) - (d)
exceeds [*] in the first year of the term of the Agreement.
This election will not relieve NetGrocer of its obligation to
make Click-through payments on non--banner Impressions.
g) In its sole discretion, during the second year of the term of
the Agreement, NetGrocer may elect to terminate the display
of its banner advertising on the Excite Network once the
number of Click-throughs on the promotional placements and
advertising banners described in Section 1 (a) - (d) exceeds
[*] in the second year of the term of the Agreement. This
election will not relieve NetGrocer of its obligation to make
Click-through payments on non-banner Impressions.
h) The one-time sponsorship initiation fee, sponsorship and
advertising fees and Click-through payments are net of any
agency commissions to be paid by NetGrocer.
i) During the term of the Agreement, on a weekly basis, Excite
will provide NetGrocer with a detailed report showing the
number of Impressions of the advertising banners described in
Section 1 (a) - (d) and the number of Click-throughs on the
advertising banners described in Section 1 (a) - (d).
j) During the term of the Agreement, within twenty (20) days
following the end of each calendar month, Excite will send
NetGrocer a detailed report showing the number of Impressions
of the different promotional placements and text links
described in Section 1 (a) - (d) and the number of
Click-throughs on the promotional placements described in
Section 1 (a) - (d).
k) Excite will maintain accurate records with respect to
calculation of all payments due under this Agreement.
NetGrocer may, upon no less than thirty (30) days prior
written notice to Excite cause an independent Certified
Public Accountant to inspect the records of Excite reasonably
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related to the calculation of such payments during Excite's
normal business hours. The fees charged by such Certified
Public Accountant will be paid by NetGrocer unless the audit
finds a discrepancy of more than five percent (5%) with
respect to the item being audited, in which case Excite shall
be responsible for the payment of the reasonable fees for
such inspection.
6. 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 party, except as may be required to the extent advised
by counsel for a party that such disclosure is necessary or
appropriate to comply with applicable law. Notwithstanding
the foregoing, the parties agree to issue an initial press
release regarding the relationship between Excite and
NetGrocer, the timing and wording of which will be mutually
agreed upon,.
7. OTHER BUSINESS OPPORTUNITIES
a) Excite currently plans to develop a consumer packaged goods
("CPG") program that would combine the broad reach of the
Excite Network with the depth of CPG merchants' industry
contacts and sales staffs. Under this program, Excite and
each CPG merchant would develop co-branded Web pages on the
Excite Network that would promote the merchant's goods cr
provide content of interest to Excite's users. Excite would
run dual promotional efforts, one that sends consumers to
each CPG merchant's co-branded area and a second that sends
consumers to the portion of the Excite Network that promotes
the entire CPG program. Excite and NetGrocer agree to
negotiate in good faith to establish the terms and conditions
for NetGrocer's participation in Excite's CPG program when
and if launched.
b) Excite currently plans to make available sponsorship
opportunities on its WebCrawler Site (located at
xxxx://xxx.xxxxxxxxxx.xxx) generally similar to the
opportunity described by this Agreement, with the significant
exception that merchants will not be granted category
exclusivity or rights to exclude competitors on the
WebCrawler Site. Excite and NetGrocer agree to negotiate in
good faith to establish the terms and conditions for
NetGrocer's participation in available sponsorship
opportunities on the WebCrawler Site when and if launched.
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8. TERM AND TERMINATION
a) The term of this Agreement will begin on December 15, 1997
and will end the later of (i) December 15, 1999 or (ii)
Excite's delivery of all of the guaranteed Click-throughs
described in Section 1(f).
b) Either party may terminate this Agreement, in the event that
the other party materially breaches its obligations or
guarantees hereunder and such breach remains uncured for
sixty (60) days following written notice to the breaching
party of the breach.
c) All payments that would be due pursuant to Sections 5(b) -
(d) up to the date of any termination or expiration of this
Agreement will be payable in full within thirty (30) days
following such termination or expiration.
d) The provisions of Section 4 (Customer Information), Section
9(a) and 9(b), Section 10 (Confidentiality), Section 11
(Warranty and Indemnity), Section 12 (Limitation of
Liability) and Section 13 (Dispute Resolution) will survive
any termination or expiration of this Agreement.
9. TRADEMARK OWNERSHIP AND LICENSE
a) NetGrocer retains all right, title and interest in and to the
NetGrocer Site, its trademarks, service marks and trade names
worldwide, subject to the limited license granted to Excite
hereunder.
b) Excite will retain all right, title and interest in and to
its trademarks, service marks and trade names worldwide,
subject to the limited license granted to NetGrocer
hereunder.
c) Each party hereby grants to the other a non-exclusive,
limited license to use its trademarks, service marks or trade
names only as specifically described in this Agreement. All
such use shall be in accordance with each party's reasonable
policies regarding advertising and trademark usage as
established from time to time.
d) Upon the expiration or termination of this Agreement, each
party will cease using the trademarks, service marks and/or
trade names of the other and Excite will cease the display of
any banner advertising and/or links to the NetGrocer Site
except as the parties may agree in writing.
10. CONFIDENTIALITY
a) For the purposes of this Agreement, "Confidential
Information" means information received from the disclosing
party or any of its affiliates or representatives about the
disclosing party's (or its suppliers') business or
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activities that is proprietary and confidential, which shall
include all business, financial, technical trade secret and
other information of a party marked or designated by such
party as "confidential or "proprietary.
b) Confidential Information will not include information that
(i) is in or enters the public domain without breach of this
Agreement, (ii) the receiving party lawfully receives from a
third party without restriction on disclosure and without
breach of a nondisclosure obligation or (iii) the receiving
party knew prior to receiving such information from the
disclosing party or develops independently.
c) Each party agrees (i) that it will not disclose to any third
xxxxx or use any Confidential Information disclosed to it by
the other except as expressly permitted in this Agreement and
(ii) that it will take all reasonable measures to maintain
the confidentiality of all Confidential Information of the
other party in its possession or control, which will in no
event be less than the measures it uses to maintain the
confidentiality of its own information of similar importance.
d) Notwithstanding the foregoing, each party may disclose
Confidential Information (i) to the extent required by a
court of competent jurisdiction or other governmental
authority or otherwise as required by law or (ii) on a
"need-to-know" basis under an obligation of confidentiality
to its employees, legal counsel, accountants, banks and other
financing sources and their advisors.
e) The terms and conditions of this Agreement will be deemed to
be the Confidential Information of each party and will not be
disclosed without the written consent of the other party.
11. WARRANTY AND INDEMNITY
a) NetGrocer will indemnify, defend and hold harmless Excite,
its affiliates, officers, directors, employees, consultants
and agents from any and all third party claims, liability,
damages and/or costs (including, but not limited to,
reasonable attorneys fees) arising from:
i) The breach of any warranty, representation
or covenant in this Agreement; or
ii) Any claim that the advertising banners
created by NetGrocer infringe or violate
any third party's copyright, patent, trade
secret, trademark, right of publicity or
right of privacy or contain any defamatory
content; or
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iii) Any claim arising from content displayed on
the NetGrocer Site;
provided that Excite will promptly notify NetGrocer of any
and all such claims and will reasonably cooperate with
NetGrocer with the defense and/or settlement thereof; and
provided further that, if any settlement requires an
affirmative obligation of, results in any ongoing liability
to or prejudices or detrimentally impacts Excite in any way
and such obligation, liability, prejudice or impact can
reasonably be expected to be material, then such settlement
shall require Excite's written consent (not to be
unreasonably withheld or delayed) and Excite may have its own
counsel in attendance at all proceedings and substantive
negotiations relating to such claim.
b) EXCEPT AS SPECIFIED IN THIS AGREEMENT, NEITHER PARTY MAKES
ANY WARRANTY IN CONNECTION WITH THE SUBJECT MATTER OF THIS
AGREEMENT AND HEREBY DISCLAIMS ANY AND ALL IMPLIED
WARRANTIES, INCLUDING ALL IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE
REGARDING SUCH SUBJECT MATTER.
12. LIMITATION OF LIABILITY
EXCEPT UNDER SECTION 11(a), IN NO EVENT WILL EITHER PARTY BE LIABLE TO
THE OTHER FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES,
WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR
OTHERWISE, WHETHER OR NOT THAT PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGE. THE LIABILITY OF EXCITE FOR DAMAGES OR
ALLEGED DAMAGES HEREUNDER, WHETHER IN CONTRACT, TORT OR ANY OTHER
LEGAL THEORY, IS LIMITED TO, AND WILL NOT EXCEED, THE TOTAL AMOUNTS
PREVIOUSLY PAID OR TO BE PAID BY NETGROCER TO EXCITE HEREUNDER [*]
13. DISPUTE RESOLUTION
a) The parties agree that any breach of either of the parties'
obligations regarding trademarks, service marks or trade
names and/or confidentiality would result in irreparable
injury for which there is no adequate remedy at law.
Therefore, in the event of any breach or threatened breach of
a party's obligations regarding trademarks, service marks or
trade names or confidentiality, the aggrieved party will be
entitled to seek equitable relief in addition to its other
available legal remedies in a court of competent
jurisdiction.
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b) In the event of disputes between the parties arising from or
concerning in any manner the subject matter of this
Agreement, other than disputes arising from or concerning
trademarks, service marks or trade names and/or
confidentiality, the parties will first attempt to resolve
the dispute(s) through good faith negotiation. In the event
that the dispute(s) cannot be resolved through good faith
negotiation, the parties will refer the dispute(s) to a
mutually acceptable mediator for hearing.
c) In the event that disputes between the parties arising from
or concerning in any manner the subject matter of this
Agreement, other than disputes arising from or concerning
trademarks, service marks or trade names and/or
confidentiality, cannot be resolved through good faith
negotiation and mediation, the parties will refer the
dispute(s) to the American Arbitration Association for
resolution through binding arbitration by a single arbitrator
pursuant to the American Arbitration Association's rules
applicable to commercial disputes.
14. GENERAL
a) Assignment. Neither party may assign this Agreement, in whole
or in part, without the other party's written consent (which
will not be unreasonably withheld), except that no such
consent will be required in connection with (i) a merger,
reorganization or sale of all, or substantially all, of such
party's assets or (ii) the assignment and/or delegation of
such party's rights and responsibilities hereunder to a
wholly-owned subsidiary or joint venture in which that party
holds an interest. Any attempt to assign this Agreement other
than as permitted above will be null and void.
b) Governing Law. This Agreement will be governed by and
construed in accordance with the laws of the State of
California, notwithstanding the actual state or country of
residence or incorporation of NetGrocer.
c) Notice. Any notice under this Agreement will be in writing
and delivered by personal delivery, express courier,
confirmed facsimile, confirmed email or certified or
registered mail, return receipt requested, and will be deemed
given upon personal delivery, one (1) day after deposit with
express courier, upon confirmation of receipt of facsimile or
email or five (5) days after deposit in the mail. Notices
will be sent to a party at its address set forth below or
such other address as that party may specify in writing
pursuant to this Section.
d) No Agency. The parties are independent contractors and will
have no power or authority to assume or create any obligation
or responsibility on behalf of each other. This Agreement
will not be construed to create or imply any partnership,
agency or joint venture.
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e) Force Majeure. Any delay in or failure of performance by
either party under this Agreement will not be considered a
breach of this Agreement and will be excused to the extent
caused by any occurrence beyond the reasonable control of
such party including, but not limited to, acts of God, power
outages and governmental restrictions. Notwithstanding the
foregoing, either party may terminate the Agreement in the
event that a delay due to force majeure continues for a
period of sixty (60) uninterrupted days.
f) Severability. In the event that any of the provisions of this
Agreement are held by to be unenforceable by a court or
arbitrator, the remaining portions of the Agreement will
remain in full force and effect.
g) Entire Agreement. This Agreement is the complete and
exclusive agreement between the parties with respect to the
subject matter hereof, superseding any prior agreements and
communications (both written and oral) regarding such subject
matter. This Agreement may only be modified, or any rights
under it waived, by a written document executed by both
parties.
NetGrocer Excite, Inc.
By: /s/ Xxxxxx Nissan By: /s/ Xxxxxx X. Xxxx
-------------------------- --------------------------
Name: Xxxxxx Nissan Name: Xxxxxx X. Xxxx
------------------------ ------------------------
Title: President & CEO Title: EVP-CFO
----------------------- -----------------------
Date: 12/30/97 Date: 12-31-97
------------------------ ------------------------
000 Xxxxxxx Xxxxxx 000 Xxxxxxxx
00xx Xxxxx Xxxxxxx Xxxx, Xxxxxxxxxx 00000
Xxx Xxxx, Xxx Xxxx 00000 650.568.6000 (voice
000.000.0000 (fax)
-14-
EXHIBIT A
LIST OF NETGROCER COMPETITORS
Peapod
Shoppers Express/Oncart
-15-
