[Confidential Treatment Requested]
Exhibit 10.11
CO-BRANDING AGREEMENT
This Co-Branding Agreement (this "Agreement") dated March 3, 2000 (the
"Effective Date") is entered into between VerticalNet, Inc., a Pennsylvania
corporation having a principal place of business at 000 Xxxxxxx Xxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxxxxxxx, 00000 ("VerticalNet"), and Impresse Corporation, a
California Corporation, having a principal place of business at 0000 Xxxxx Xxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxxxx, 00000 ("Impresse").
BACKGROUND
WHEREAS, VerticalNet owns and operates a series of Online Communities
(defined below) that are accessible via the World Wide Web, each of which is
designed to be an online gathering place for businesses of a certain type or
within a certain industry; and
WHEREAS, Impresse desires to provide its commercial printing services
(the "Impresse Services") to Users (defined below) of VerticalNet Sites (defined
below); and
WHEREAS, Impresse and VerticalNet desire to create Co-Branded Site
(defined below) where users will be able to register to review and utilize the
Impresse Services and to promote such Co-Branded Site on VerticalNet Sites.
NOW, THEREFORE, in consideration of the mutual covenants herein, and
intending to be legally bound hereby, VerticalNet and Impresse agree as follows:
1. DEFINITIONS
1.1. AFFILIATE shall mean, when used with reference to a party, any
individual or entity directly or indirectly controlling, controlled by or under
common control with such party. For purposes of this definition, "control" means
the direct or indirect ownership of at least 50% of the outstanding voting
securities of a party, or the right to control the policy decisions of such
party.
1.2. BANNER shall mean a graphical image advertising the Impresse Site that
is posted in an area reasonably designated by VerticalNet for similar banner
advertisements and shall contain a Link (defined below) to the Co-Branded Site.
1.3. CO-BRANDED CONTENT shall mean all materials, data and similar
information presented on the pages of the Co-Branded Site.
1.4. CO-BRANDED SITE shall mean the Site (defined below) that contains both
a Frame (defined below) and a Window (defined below) which includes the Impresse
Area (defined below) and the VerticalNet Area (defined below) of the Co-Branded
Site.
1.5. CONFIDENTIAL INFORMATION shall mean, subject to the provisions of
Section 7.2, all proprietary and confidential information of a party, including,
without limitation, trade secrets, technical information, business information,
sales information, customer and potential customer lists and identities, product
sales plans, sublicense agreements, inventions, developments, discoveries,
software, know-how, methods, techniques, formulae, data, processes and other
trade secrets and proprietary ideas, whether or not protectable under patent,
trademark, copyright or other areas of law, that the other party has access to
or receives. For purposes of this Agreement,
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* Represents confidential information for which Impresse Corporation is
seeking confidential treatment with the Securities and Exchange Commission.
the Co-Branded Content shall not be considered Confidential Information of
Impresse. For purposes of this Agreement, this Agreement shall be considered
Confidential Information.
1.6. E-COMMERCE CENTER shall mean a web page on a VerticalNet Site which is
customized by VerticalNet to include a vendor's information, including the
vendor's branding; a Link to the vendor's catalog, auction item listings; the
vendor's career center including employment information; archives of; and Links
to other related content locations.
1.7. FRAME shall mean a portion of a Web page which surrounds a Window on
the top and left.
1.8. IMPRESSE AREA shall mean the Window portion of the Impresse Site
(defined below) less the Frame that will be placed around the Window of the
Co-Branded Site.
1.9. IMPRESSE XXXX shall mean any trademark, service xxxx, trade name,
domain name, design or logo of Impresse or its Affiliates.
1.10. IMPRESSE SITE shall mean the Site located at xxx.xxxxxxxx.xxx (and
any successor Site thereto).
1.11. IMPRESSE-VERTICALNET REVENUE shall have the meaning defined in
Section 4.6.2.
1.12. INTELLECTUAL PROPERTY shall mean any and all trade secrets, patents,
copyrights, trademarks, service marks, URLs, trade dress, brand features,
know-how and similar rights of any type under the laws of any applicable
governmental authority, including, without limitation, all applications and
registrations relating to any of the foregoing.
1.13. INTELLECTUAL PROPERTY RIGHTS shall mean all rights in and to
Intellectual Property, including, without limitation, all patent rights,
copyrights, trademarks, service marks, know-how and trade secrets.
1.14. LAUNCH DATE shall mean the day on which the Co-Branded Site and the
V-Solutions Area become fully operational and generally available on the
Internet.
1.15. LINK shall mean a link, including but not limited to a hyperlink,
button or banner, that connects two Sites in a manner so that when a User
clicks on the link, the User is transferred directly from one Site to a
second Site.
1.16. NEWSLETTER shall mean a text message containing information
supplied by Impresse and approved by VerticalNet (which approval shall not be
unreasonably withheld) that is transmitted via e-mail to Users of the
VerticalNet Sites who have provided their e-mail addresses to VerticalNet
along with permission to transmit such messages to the e-mail address.
1.17. ONLINE COMMUNITY shall mean a VerticalNet Site that acts as a
comprehensive source of information, dialogue and commerce for and links to
E-Commerce Centers and other Sites for a particular industry or service
market.
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1.18. PROPRIETARY FEATURE shall mean any name, trademark, service xxxx,
trade name, domain name, navigational element, copyright, or logo which is
proprietary to Impresse and/or VerticalNet, as appropriate.
1.19. SITE shall mean a site located on the World Wide Web portion of the
Internet.
1.20. TERM shall have the meaning set forth in Section 5.1
1.21. URL shall mean a universal resource locator used for the purpose of
identifying a Site located on the Internet.
1.22. USER shall mean a single person who accesses and views a Site whether
directly from a web browser or through a Link.
1.23. USER DATA shall mean all data generated by an Internet server that
relates to file requests, user identification, transaction logs, session times
and other information regarding the Users generated or collected by or through a
Co-Branded Site, but excluding any information that relates or refers to a
particular project of such User.
1.24. V-SOLUTIONS AREA shall mean a hub page accessible via a Link from the
home page of each VerticalNet Site which shall contain a list of categories of
business services, with each category further listing entities that provide such
services. Each individual company listing shall contain a Link to a Web page
hosted by VerticalNet that describes such company and the services it offers.
The V-Solutions Area will also feature the V-Solutions Link (defined below).
1.25. V-SOLUTIONS LINK shall mean the Link from the V-Solutions Area to the
Co-Branded Site.
1.26. VERTICALNET AREA shall mean the Frame area of the Co-Branded Site.
1.27. VERTICALNET XXXX shall mean any trademark, service xxxx, trade name,
domain name, design or logo of VerticalNet.
1.28. VERTICALNET-IMPRESSE USERS shall have the meaning defined in Section
4.6.1
1.29. VERTICALNET SITE shall mean a Site owned and operated by VerticalNet
in the United States or a portion of such Site designated by VerticalNet.
1.30. WINDOW shall mean a portion of a Web page that is surrounded by a
Frame.
1.31. YEAR 2000 COMPLIANT shall mean with respect to any computer software
that to the extent that such software contains date-dependent functionality,
will: (1) contain four digit year codes, (2) properly process dates and date
values before, through and beyond January 1, 2000, including date calculations
with dates both before and after January 1, 2000, and (3) not suffer any impact
on performance as a result of dates beyond January 1, 2000; provided, however,
that for this warranty to apply the operating systems on which such software is
being run, and any network servers, Web browsers, databases and other software
that is used in conjunction with such software must also be Year 2000 Compliant
as defined herein.
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2. CO-BRANDED SITE
2.1. Impresse shall be responsible for: (a) the design, layout,
development, hosting and maintenance of the Impresse Area of the Co-Branded
Site; (b) providing VerticalNet with reasonable instructions and information
regarding the Impresse Services; (c) providing a tabbed area prominently
featured in a user interface within the Impresse Area of the Co-Branded Site
that points to a VerticalNet Online Community or Online Communities; (d)
modifying the Impresse online registration forms and system available on the
Co-Branded Site to require Impresse users to identify and match their business
activities with a VerticalNet Online Community or Online Communities; and (e)
providing VerticalNet with the URL addresses for the Co-Branded Site.
2.2. VerticalNet shall be responsible for: (a) the design, layout,
development, hosting and maintenance of the VerticalNet Area of the Co-Branded
Site; and (b) the design, layout, development, hosting and maintenance of the
V-Solutions Link.
2.3. Beginning on the Launch Date and continuing during the Term,
VerticalNet shall display the V-Solutions Area on the VerticalNet Sites.
VerticalNet shall likewise, during the Term, implement and maintain the
V-Solutions Link.
2.4. Beginning on the Launch Date and continuing during the Term,
VerticalNet shall not place advertising relating to the commercial printing
entities listed on Exhibit "A," or other such entities subsequently identified
by Impresse, on the VerticalNet Area of the Co-Branded Site.
2.5. Impresse hereby grants to VerticalNet a non-exclusive,
non-transferable, royalty-free, right and license to link to the Impresse Area
of the Co-Branded Site. Impresse shall permit Users who access the Co-Branded
Site to access and use Co-Branded Content from the Co-Branded Site for the
personal use of such Users in accordance with the then-current terms of
Impresse's standard license agreement governing the use of such Co-Branded
Content.
2.6. Nothing in this Agreement shall be construed as preventing Impresse or
VerticalNet from developing other co-branded versions of their materials, data,
information and content.
3. ONGOING SUPPORT
3.1. Impresse shall use commercially reasonable efforts to respond to all
support requests by VerticalNet relating to the Co-Branded Site within one
Business Day (as defined below) of Impresse's receipt of such notification.
Impresse shall use reasonable efforts to cure the reported problem as soon as
reasonably possible. VerticalNet shall provide Impresse with all information
reasonably requested by Impresse in connection with a reported problem for which
VerticalNet is requesting support under this Section 3.1. VerticalNet shall use
commercially reasonable efforts to respond to all support requests by Impresse
relating to the Co-Branded Site within one Business Day (as defined below) of
VerticalNet's receipt of such notification. VerticalNet shall use reasonable
efforts to cure the reported problem as soon as reasonably possible. Impresse
shall provide VerticalNet with all information reasonably requested by
VerticalNet in connection with a reported problem for which Impresse is
requesting support under this Section 3.1.
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[Confidential Treatment Requested]
3.2. Impresse will identify to VerticalNet primary and secondary contacts
who will be familiar with the Co-Branded Site and this Agreement. VerticalNet
will identify to Impresse primary and secondary contacts who will be familiar
with the Co-Branded Site and this Agreement.
3.3. VerticalNet shall have access to technical support from Impresse by
telephone from 8 a.m. Pacific Standard Time to 5 p.m. Pacific Standard Time,
Monday through Friday, Impresse holidays excluded (each a "Business Day,"
collectively "Business Days"). Impresse shall have access to technical support
from VerticalNet by telephone from 6 a.m. Eastern Standard Time to 6 p.m.
Eastern Standard Time, Monday through Friday, VerticalNet holidays excluded.
4. THE COMMERCIAL TERMS
4.1. DEVELOPMENT FEES. For the design, development and integration of the
V-Solutions Area and the VerticalNet Area of the Co-Branded Site, Impresse shall
pay to VerticalNet a one-time, nonrefundable development fee in the amount of
[*] payable on the Effective Date.
4.2. SLOTTING FEES. For the display of the V-Solutions Area and the
V-Solutions Link, Impresse shall pay to VerticalNet a slotting fee in the amount
of [*] payable pursuant to the terms of Section 4.5.
4.3. BANNER/NEWSLETTER PURCHASE COMMITMENT. During the Term of this
Agreement, Impresse agrees to purchase from VerticalNet Banners and
Newsletters for a total price of at least $[*] as set forth below in this
Section 4.3. All prices for such Banners and Newsletters shall be offered to
Impresse at a [*]% discount off of VerticalNet's then current prices for
similar Banners or Newsletters. All purchases shall be subject to
VerticalNet's standard terms and conditions governing advertising on
VerticalNet Sites. Impresse agrees to purchase at least $[*] of such Banners
and Newsletters in each calendar quarter after the Effective Date until a
total of $[*] have been purchased, provided, the total dollar amount
purchased by Impresse in any calendar quarter shall not consist of greater
than 70% of either Banners or Newsletters. Payment of the fees set forth in
this Section shall be made pursuant to the terms of Section 4.5.
4.4. HOSTING FEE. Impresse shall pay VerticalNet a service fee of $[*]
for the hosting and maintenance of the Co-Branded Site and the V-Solutions Link,
payable pursuant to the terms of Section 4.5.
4.5. PAYMENT TERMS. Impresse shall pay the fees set forth in Sections
4.2, 4.3 and 4.4 as an aggregate, totaling $[*] payable in four equal
quarterly installments of $[*] beginning on May 31, 2000 and thereafter on
August 31, 2000 November 30, 2000 and February 28, 2001, respectively.
4.6. REVENUE SHARING. Impresse shall pay VerticalNet [*]of Impresse
VerticalNet Revenue accruing during the term of this Agreement, payable to
VerticalNet on or before the thirtieth day of the calendar quarter
immediately following the quarter in which such revenue was collected by
Impresse. Such payments shall be accompanied by a statement containing
reasonable detail of the type and number of transactions from which the
Impresse
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* Represents confidential information for which Impresse Corporation is
seeking confidential treatment with the Securities and Exchange Commission.
VerticalNet Revenue was derived, the total Impresse VerticalNet Revenue for such
period and the total fees payable to VerticalNet pursuant to this Section 4.6.
4.6.1. "VerticalNet Impresse Users" are the Users that register with
Impresse through the Co-Branded Site, but specifically excluding those Users
who have previously registered with Impresse other than through the
Co-Branded Site.
4.6.2. The "Impresse VerticalNet Revenue" is Impresse's total net
transaction and subscription revenues collected by Impresse during the term
of this Agreement from VerticalNet Impresse Users.
4.6.3. If government regulations prevent Impresse from sharing any
revenues associated with Impresse Services, VerticalNet and Impresse shall
negotiate in good faith a compensation structure that seeks to provide
VerticalNet with compensation equal to that set forth in Section 4.6.
4.7. TAXES. All payments required under this Agreement are exclusive of
federal, state, local and foreign taxes, duties, tariffs, levies and similar
assessments. When applicable, such taxes shall appear as separate items on a
party's invoice or statement to the other party. Payment of such taxes or
charges shall be the responsibility of the party whose obligation it is under
this Agreement to make the payment in respect of which such taxes are assessed,
excluding any taxes based upon the other party's net income. In lieu thereof, a
party shall provide the other party with a tax or levy exemption certificate
acceptable to the taxing or levying authority.
4.8. AUDITS. During the term of this Agreement and for one year thereafter,
VerticalNet shall have the right to appoint a certified public accountant to
audit Impresse's financial records relating to such payment to verify the
accuracy of Impresse's financial records in order to verify the amount of the
payments owed and/or paid hereunder, but no more frequently than once per year.
If the amount owed by Impresse to VerticalNet was underpaid, the additional
amount owed shall be paid to VerticalNet within 15 days of notice of such
underpayment to Impresse. If the amount owed by Impresse to VerticalNet was
underpaid in excess of 10% of the amount owed, the fees of such audit shall also
be paid to VerticalNet within 15 days of notice of such to Impresse. If the
amount owed by Impresse to VerticalNet was overpaid, the excess amount paid
shall be returned by VerticalNet within 15 days of notice of such overpayment.
VerticalNet shall give reasonable advance notice to Impresse of such audit and
each audit shall be conducted in a manner that does not cause unreasonable
disruption to the conduct of business by Impresse. The results of any such audit
shall be deemed to be Confidential Information and may not be disclosed by
either party or its certified public accountants except as may be necessary to
enforce such party's rights.
4.9. INTEREST. All payments not paid by the date such payments are due
shall bear interest from the due date to the date payments are actually paid at
the lower of (i) 1% per month or (ii) the maximum rate permitted by law.
5. TERMINATION AND RENEWAL
5.1. The Term of this Agreement shall begin on the Effective Date and shall
end fifteen months therefrom.
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5.2. Either party may terminate this Agreement immediately upon written
notice to the other party in the event of any material breach of a term of this
Agreement by such other party that remains uncured 30 days after written notice
of such breach was received by such other party or, if the breach is not
reasonably capable of cure within 30 days, such longer period, not to exceed 60
days, so long as the cure is commenced within the 30-day period and thereafter
is diligently prosecuted to completion as soon as possible and in any event
within 60 days.
5.3. Upon termination or expiration of this Agreement, (i) Impresse shall
no longer have the right to use any VerticalNet Xxxx, (ii) VerticalNet shall no
longer have the right to use any Impresse Xxxx; (iii) Impresse may no longer
make any Co-Branded Content available for access and use through the Co-Branded
Site; (iv) VerticalNet shall cease framing the Window in the Co-Branded Site;
(v) VerticalNet shall remove the V-Solutions Link from the V-Solutions Area; and
(vi) VerticalNet shall cease displaying or transmitting all Banners and
Newsletters of Impresse.
5.4. Following expiration or termination of this Agreement, the terms and
provisions of Article 4 above shall continue to govern Impresse's payment
obligations for any payment obligations accruing during the term of this
Agreement. Following termination, Impresse shall provide VerticalNet with a
final accounting with respect to this Agreement and tender payment of amounts
due under Article 4 at the next scheduled payment date.
6. DISPUTE RESOLUTION
6.1. NEGOTIATION AND ESCALATION. If any controversy or claim arises
relating to this Agreement, the parties will attempt in good faith to negotiate
a solution to their differences, including progressively escalating any
controversy or claim through senior levels of management. If negotiation does
not result in a resolution within 30 days of the date one party first notifies
the other of the controversy or claim, either party may resort to arbitration
under Section 6.2.
6.2. ARBITRATION. Any controversy or claim between the parties concerning
any breach or alleged breach of this Agreement or performance or nonperformance
of any obligation under this Agreement which cannot be resolved by negotiation
will be resolved by binding arbitration under this Section 6.2 and the
then-current Commercial Rules and supervision of the American Arbitration
Association (the "AAA"). If any part of this Section 6.2 is held to be
unenforceable, it will be severed and will not affect either the duty to
arbitrate or any other part of this Section 6.2. The arbitration will be held
before a sole disinterested arbitrator who is knowledgeable in business
information and the Internet and experienced in handling commercial disputes.
The arbitrator shall be appointed jointly by the parties hereto within 30 days
following the date on which the arbitration is instituted. If the parties are
unable to agree upon the arbitrator within such 30-day period, the AAA shall be
instructed to select such arbitrator within 15 days thereafter. The arbitrator's
award will be final and binding and may be entered in any court having
jurisdiction. The arbitrator will not have the power to award punitive or
exemplary damages, or any damages excluded by, or in excess of, any damage
limitations expressed in this Agreement. Issues of arbitrability will be
determined in accordance solely with the federal substantive and procedural laws
relating to arbitration; in all other respects, the arbitrator will be obligated
to apply and follow the substantive law of the State of Delaware.
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6.3. EQUITABLE RELIEF. Notwithstanding anything to the contrary in this
Agreement, in the event of an alleged violation of Article 7 of this Agreement
by either party, the party alleging such a violation may seek temporary and
permanent injunctive or other appropriate equitable relief from any court of
competent jurisdiction pending appointment of an arbitrator. The party
requesting such relief shall simultaneously file a demand for arbitration of the
dispute, and shall request that the AAA proceed under its rules for an expedited
hearing.
6.4. COSTS. Unless the arbitrator, if any, determines otherwise, each party
will bear its own attorneys' fees and other costs associated with the
negotiation and arbitration provided for by this Article 6, except that costs
and expenses regarding the arbitrators shall be shared equally. If court
proceedings to stay litigation or compel arbitration are necessary, the party
who unsuccessfully opposes such proceedings will pay all associated costs,
expenses and attorneys' fees that are reasonably incurred by the other party. To
the extent that any claim in arbitration relates to the collection of amounts
owed under Article 4, the party entitled to collect such amounts shall be
entitled to recover all reasonable costs of collection, including expenses and
attorneys' fees that are incurred.
6.5. TWO YEAR LIMITATION. Except for claims under Sections 9.4 and 9.5
hereof, neither party may bring a claim or action regardless of form, arising
out of or related to this Agreement, including any claim of fraud or
misrepresentation, more than two years after the cause of action accrues or
becomes known, whichever is later.
6.6. CONFIDENTIALITY. In order to facilitate the resolution of
controversies or claims between the parties with respect to each party hereto,
such controversies or claims, including details regarding negotiations,
arbitration and settlement terms, shall be treated as Confidential Information
of the other party hereto in accordance with Article 7.
6.7. REMEDIAL MEASURES. In the event of (a) any material remediable breach
of this Agreement by the other party which remains uncured 30 days after notice
of such breach was received by the other party or (b) any material breach which
cannot be cured, the non-breaching party may take reasonable remediable measures
upon prior written notice and at the cost and expense of the breaching party
without prejudice and in addition to any other rights arising from such breach.
In addition, the non-breaching party shall take reasonable steps to mitigate
damages arising out of such breach.
7. CONFIDENTIALITY
7.1. CONFIDENTIALITY OBLIGATIONS. Except as permitted elsewhere under this
Agreement, each party agrees to take Reasonable Steps (as defined below) (a) to
receive and maintain the Confidential Information of the other party in
confidence and (b) not to disclose such Confidential Information to any third
parties, provided, the receiving party may disclose such Confidential
Information to its employees, representatives and agents who have a need to know
such information for purposes of carrying out the terms of this Agreement.
Neither party hereto shall use all or any part of the Confidential Information
of the other party for any purpose other than to perform its obligations under
this Agreement. The parties will take Reasonable Steps (as defined below) to
ensure that their employees, representatives and agents comply with this
provision. As used herein, "Reasonable Steps" means at least the same degree of
care that the
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receiving party uses to protect its own Confidential Information, and, in no
event, not less than reasonable care.
7.2. EXCLUSIONS. "Confidential Information" does not include information
that (a) is or becomes publicly available through no fault of the receiving
party; (b) was already known to the receiving party at the time it was disclosed
to the receiving party, as evidenced by records of the receiving party; (c) is
independently developed by employees of the receiving party who had no knowledge
of or access to such information, as evidenced by records of the receiving
party; (d) is received from a third party who is under no obligation of
confidentiality to the disclosing party; or (e) must be disclosed pursuant to
applicable laws, rules or regulations; provided, however, that the receiving
party first gives the disclosing party notice and a reasonable opportunity to
secure confidential protection of such Confidential Information.
7.3. TERMINATION. Subject to Section 10.11, upon termination of this
Agreement, all Confidential Information shall be returned to the disclosing
party or, at the request of the disclosing party, destroyed unless otherwise
specified or permitted elsewhere under this Agreement. Subject to Section 7.6,
the confidentiality obligations contained in this Article 7 shall survive
termination of this Agreement for a period of three years.
7.4. INJUNCTION. Each party acknowledges and agrees that the provisions of
this Article 7 are reasonable and necessary to protect the other party's
interests in its Confidential Information, that any breach of the provisions of
this Article 7 may result in irreparable harm to such other party, and that the
remedy at law for such breach may be inadequate. Accordingly, in the event of
any breach or threatened breach of the provisions of this Article 7 by a party
hereto, the other party, in addition to any other relief available to it at law,
in equity or otherwise, shall be entitled to seek temporary and permanent
injunctive relief restraining the breaching party from engaging in and/or
continuing any conduct that would constitute a breach of this Article 7, without
posting a bond or other security.
7.5. PUBLICITY. Neither party will originate any press release concerning
the relationship between the parties or the transactions described in this
Agreement without the prior written consent of the other party, which consent
shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, as
soon as reasonably practicable following the Effective Date, VerticalNet and
Impresse shall jointly issue a press release with respect to entering into this
Agreement.
7.6. USER DATA. Impresse shall provide VerticalNet with User Data on each
User that submits information through the Co-Branded Site by sending an email
with such information to an email address designated by VerticalNet at the time
the request occurs. User Data shall be maintained by each Party as Confidential
Information of the other Party during the Term and 5 years thereafter, provided
such User Data may be disclosed only as part of an aggregation or analysis of
all User Data but not as independent data. Upon termination of the Agreement,
VerticalNet and Impresse shall jointly own all User Data. Neither Party shall
use the User Data other than in accordance with the VerticalNet privacy policy
and all applicable laws during the Term and thereafter.
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8. REPRESENTATIONS AND WARRANTIES
8.1. REPRESENTATIONS AND WARRANTIES. Each party hereby represents,
covenants and warrants that:
8.1.1. It has the corporate power to enter into this Agreement
and to grant the rights and licenses granted herein and to otherwise perform
this Agreement;
8.1.2. It is not a party to any agreement or understanding and
knows of no law or regulation that would prohibit it from entering into and
performing this Agreement or that would conflict with this Agreement;
8.1.3. When executed and delivered by it, this Agreement will
constitute a legal, valid and binding obligation of it, enforceable against
it in accordance with this Agreement's terms, except as enforcement may be
limited by laws or regulations relating to bankruptcy, insolvency and
creditors rights or by principles of equity;
8.1.4. The portions of the Co-Branded Site provided by such
party are and will continue to be Year 2000 Compliant;
8.1.5. To the best of its knowledge, the portions of the
Co-Branded Site provided by such party and its own Site do not and will not
(i) contain any known viruses, Trojan Horse, worm or harmful code the purpose
of which is to disable or interrupt the operating of a computer system or
destroy, erase or otherwise harm any data, software or hardware, (ii) contain
any false, misleading, libelous or defamatory statements, (iii) constitute an
invasion of the rights of privacy or publicity of any third party, (iv)
violate any applicable laws, rules and regulations or (v) infringe, violate
or misappropriate any Intellectual Property Rights of any third party.
9. DISCLAIMER OF WARRANTY, LIMITATION OF LIABILITY AND INDEMNIFICATION
9.1. DISCLAIMER OF WARRANTIES BY VERTICALNET. EXCEPT AS EXPRESSELY SET
FORTH IN THIS AGREEMENT, VERTICALNET HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS,
IMPLIED OR STATUTORY, WITH RESPECT TO THE VERTICALNET SITES, THE V-SOLUTIONS
AREA, THE V-SOLUTIONS LINK AND THE VERTICALNET AREA OF THE CO-BRANDED SITE,
INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE. VERTICALNET EXPRESSLY DISCLAIMS ANY AND ALL
WARRANTIES AS TO THE USER INTERFACE OR USER EXPERIENCE ASSOCIATED WITH THE
VERTICALNET SITES AND RESERVES THE RIGHT, IN ITS SOLE DISCRETION, TO MODIFY THE
PLACEMENT OF ALL LINKS, URLS AND PROPRIETARY FEATURES; PROVIDED, HOWEVER, THAT
IN THE EVENT VERTICALNET REDESIGNS THE USER INTERFACE, SUCH LINKS, URLS AND
PROPRIETARY FEATURES SHALL RECEIVE MUTUALLY AGREEABLE PLACEMENT SUBSTANTIALLY
SIMILAR TO THE ORIGINAL DESIGN.
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9.2. DISCLAIMER OF WARRANTIES BY IMPRESSE. EXCEPT AS EXPRESSLY SET FORTH
IN THIS AGREEMENT, IMPRESSE HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED
OR STATUTORY, WITH RESPECT TO THE IMPRESSE AREA OF THE CO-BRANDED SITE AND
THE IMPRESSE SITE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
9.3. LIMITATION OF LIABILITY. EXCEPT IN CONNECTION WITH A BREACH BY EITHER
PARTY OF ARTICLE 7 OR SECTION 8.1.5 (v) AND THE INDEMNIFICATION OBLIGATIONS OF
IMPRESSE UNDER SECTION 9.4(i)(d) AND THE INDEMNIFICATION OBLIGATIONS OF
VERTICALNET UNDER SECTION 9.5(i)(d), NEITHER PARTY WILL BE LIABLE FOR ANY
SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY OR INCIDENTAL DAMAGES ARISING OUT OF
OR RELATED TO THIS AGREEMENT, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY
(INCLUDING NEGLIGENCE), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES.
9.4. INDEMNIFICATION BY IMPRESSE. Subject to Section 9.6, Impresse shall
(i) defend at its sole expense VerticalNet and its officers, directors,
employees and agents from and against any action, suit, proceeding or
investigation brought by a third party and caused by, relating to, based upon,
arising out of or in connection with (a) any breach by Impresse of the
representations, warranties or agreements made by it in Section 8 of this
Agreement, (b) negligence, recklessness or intentional misconduct on the part of
Impresse or its officers, directors, employees, agents or consultants, (c) any
claim arising out of VerticalNet's authorized use or possession of the portions
of the Co-Branded Site provided by Impresse and the Impresse Site as permitted
by this Agreement; or (d) any claim that any portion of the Impresse Site or the
Impresse Area of the Co-Branded Site violates, infringes or misappropriates any
Intellectual Property Right of any third party and (ii) pay all authorized
costs, expenses and disbursements incurred in such defense, and any damages,
liabilities, obligations, penalties or judgments awarded in any such action, or
any settlement amount agreed to by Impresse.
9.5. INDEMNIFICATION BY VERTICALNET. Subject to Section 9.6, VerticalNet
shall (i) defend at its sole expense Impresse and its officers, directors,
employees and agents from and against any action, suit, proceeding or
investigation brought by a third party, caused by, relating to, based upon,
arising out of or in connection with (a) any breach by VerticalNet of the
representations, warranties or agreements made by it in Section 8 of this
Agreement, (b) negligence, recklessness or intentional misconduct on the part of
VerticalNet or its officers, directors, employees, agents or consultants, (c)
any claim arising out of Impresse's use or possession of the portions of the
Co-Branded Site provided by VerticalNet and the VerticalNet Sites as permitted
by this Agreement; or (d) any claim that any portion of the VerticalNet Site or
the VerticalNet Area of the Co-Branded Site violates, infringes or
misappropriates any Intellectual Property Right of any third party and (ii) pay
all costs, expenses and disbursements authorized by the Indemnitor (defined
below) incurred in such defense, and any damages, liabilities, obligations,
penalties or judgments awarded in any such action, or any settlement amount
agreed to by VerticalNet.
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9.6. PROCEDURE. If any action shall be brought against a party in respect
to which indemnity may be sought from the other party pursuant to the provisions
of this Article 9, the party seeking indemnity (the "Indemnitee") shall follow
the procedures in this Section. If an Indemnitee receives any notice of a claim
or other allegation with respect to which the other party (the "Indemnitor") has
an obligation of indemnity hereunder, then the Indemnitee will, within 15 days
of receipt of such notice, give the Indemnitor written notice of such claim or
allegation setting forth in reasonable detail the facts and circumstances
surrounding the claim. The Indemnitee will not make any payment or incur any
costs or expenses with respect to such claim, except as requested by the
Indemnitor or as necessary to comply with this procedure. The Indemnitee will
not make any admission of liability or take any other action that limits the
ability of the Indemnitor to defend the case. The Indemnitor shall immediately
assume the full control of the defense or settlement of such claim or
allegation, including the selection and employment of counsel, and shall pay all
authorized costs and expenses of such defense. The Indemnitee will fully
cooperate, at the expense of the Indemnitor, in the defense or settlement of the
claim. The Indemnitee shall have the right, at its own expense, to employ
separate counsel and participate in the defense or settlement of the claim;
provided that the Indemnitor shall have no liability for costs or expenses
incurred by the Indemnitee, except to the extent authorized by the Indemnitor
pursuant to this procedure.
9.7. ESSENTIAL PART OF BARGAIN. The parties acknowledge that the
disclaimers and limitations set forth in this Article 9 are an essential element
of this Agreement between the parties and that the parties would not have
entered into this Agreement without such disclaimers and limitations.
10. MISCELLANEOUS
10.1. INTELLECTUAL PROPERTY.
10.1.1. Except for the express rights granted to Impresse under
this Agreement, Impresse acknowledges and agrees that the Intellectual
Property of VerticalNet is and shall remain the sole property of VerticalNet
and nothing in this Agreement shall confer in Impresse any right of ownership
or license rights in VerticalNet's Intellectual Property. In addition,
Impresse shall not now or in the future contest the validity of VerticalNet's
ownership of its Intellectual Property; provided, however, that Impresse may
contest the validity of VerticalNet's Intellectual Property in any proceeding
brought against Impresse alleging infringement or misappropriation of
VerticalNet's Intellectual Property.
10.1.2. Except for the express rights granted to VerticalNet
under this Agreement, VerticalNet acknowledges and agrees that the
Intellectual Property of Impresse is and shall remain the sole property of
Impresse and nothing in this Agreement shall confer in VerticalNet any right
of ownership or license rights in Impresse's Intellectual Property. In
addition, VerticalNet shall not now or in the future contest the validity of
Impresse's ownership of its Intellectual Property; provided, however, that
VerticalNet may contest the validity of Impresse's Intellectual Property in
any proceeding brought against VerticalNet alleging infringement or
misappropriation of Impresse's Intellectual Property.
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10.2. GOVERNING LAW. This Agreement shall be governed by and interpreted
under the laws of the State of Delaware without regard to its conflicts of law
provisions.
10.3. NO ASSIGNMENT. Except as otherwise set forth herein, neither party
shall transfer, assign or cede any rights or delegate any obligations hereunder,
in whole or in part, whether voluntarily or by operation of law, without the
prior written consent of the other party, which consent may be withheld at the
other party's reasonable business discretion; provided, however, that either
party may transfer this Agreement without prior written consent of the other to
an Affiliate of such party, or to the surviving party in a merger or
consolidation, or to a purchaser of all or substantially all of its assets.
10.4. GOOD FAITH. The parties undertake to display to each other the utmost
good faith, consistent with their respective rights and obligations set forth in
this Agreement.
10.5. INDEPENDENT CONTRACTORS. In connection with this Agreement, each
party is an independent contractor. This Agreement does not, and shall not be
construed to, create an employer-employee, agency, joint venture or partnership
relationship between the parties. Neither party shall have any authority to act
for or to bind the other party in any way, to alter any of the terms or
conditions of any of the other party's standard forms of invoices, sales
agreements, warranties or otherwise, or to warrant or to execute agreements on
behalf of the other or to represent that it is in any way responsible for the
acts, debts, liabilities or omissions of the other party.
10.6. NOTICES. All notices, reports, payments and other communications
required or permitted to be given under this Agreement (each, a "Notice") shall
be in writing and shall be given either by personal delivery against a signed
receipt, by express delivery using a nationally recognized overnight courier, or
by facsimile. All Notices shall be properly addressed as follows, or to such
other addresses as may be specified in a Notice given hereunder:
IF TO VERTICALNET:
Attn: General Counsel
VerticalNet, Inc.
000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxxxx 00000
Tel No.: (000) 000-0000
Fax No.: (000) 000-0000
IF TO IMPRESSE:
Attn: Xxxx Xxxxx
Impresse Corporation
0000 Xxxxx Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
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A Notice shall be deemed to be effective upon personal delivery or, if sent via
overnight delivery, upon receipt thereof. A Notice sent via facsimile is deemed
effective on the same day (or if such day is not a business day, then on the
next succeeding business day) if such facsimile is sent before 3:00 p.m.
Prevailing Eastern Time and on the next day (or if such day is not a business
day, then on the next succeeding business day) if such Notice is sent after 3:00
p.m. Prevailing Eastern Time.
10.7. AMENDMENT OR MODIFICATION. No subsequent amendment, modification or
waiver of any of the provisions of this Agreement shall be effective unless in
writing and signed by the parties.
10.8. ENTIRE AGREEMENT. This Agreement sets out the entire agreement
between the parties with respect to the subject matter of this Agreement and
supersedes all prior agreements, proposals, arrangements and communications,
whether oral or written, with respect to the subject matter hereof.
10.9. SEVERABILITY. If any provision of this Agreement is held by a
tribunal of competent jurisdiction to be illegal, invalid, or otherwise
unenforceable in any jurisdiction, then to the fullest extent permitted by law
(a) the same shall not effect the other terms or provisions of this Agreement,
(b) such term or provision shall be deemed modified to the extent necessary in
the tribunal's opinion to render such term or provision enforceable, and the
rights and obligations of the parties shall be construed and enforced
accordingly, preserving to the fullest extent the intent and agreements of the
parties set forth herein and (c) such finding of invalidity, illegality or
unenforceability shall not affect the validity, legality or enforceability of
such term or provision in any other jurisdiction.
10.10. NO WAIVER. Failure to enforce any term of this Agreement is not a
waiver of future enforcement of that or any other term. No term or provision of
this Agreement will be deemed waived and no breach excused unless such waiver or
excuse is in writing and signed by the party against whom enforcement of such
waiver or excuse is sought.
10.11. SURVIVAL. Sections 5.3 and 5.4, and Articles 6, 7, 8, 9 and 10, any
payment obligations of the parties hereunder accruing prior to the date of
termination; and any other provision herein expressly surviving termination or
necessary to interpret the rights and obligations of the parties in connection
with the termination of the term of this Agreement will survive the termination
or expiration of this Agreement.
10.12. NO THIRD PARTY BENEFICIARIES. Nothing in this Agreement is intended
to confer benefits, rights or remedies unto any person or entity other than the
parties and their permitted successors and assigns.
10.13. WAIVER OF JURY TRIAL. Each party hereby irrevocably waives all
rights a party may have to a trial by jury in any legal action or proceeding
arising out of or in connection with this Agreement or the transactions
contemplated hereby.
10.14. TITLES. The headings appearing at the beginning of the Sections
contained in this Agreement have been inserted for identification and reference
purposes only and shall not be used to determine the construction or
interpretation of this Agreement. The nomenclature of the
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defined terms in this Agreement shall only be used for the construction of
this Agreement, and are not to be used for any other purpose, including, but
not limited to, interpretation for accounting purposes.
10.15. FORCE MAJEURE. Neither party shall be held to be in breach of this
Agreement by reason of a force majeure event, including, but not limited to, act
of God, delay in transportation, fire, flood, earthquake, storm, war, act of a
public enemy, civil commotion or any law, rule, regulation, order or other
action by any public authority or any other matter reasonably beyond a party's
control. To the extent failure to perform is caused by such a force majeure
event, such party shall be excused from performance hereunder so long as such
event continues to prevent such performance, and provided the non-performing
party takes all reasonable steps to resume full performance.
10.16. COMPLIANCE WITH LAWS. Each party shall comply with all prevailing
laws, rules and regulations and obtain all necessary approvals, consents and
permits required by the applicable agencies of the government of the
jurisdictions that apply to its activities or obligations under this Agreement.
10.17. EXECUTION IN COUNTERPARTS, FACSIMILES. This Agreement may be
executed in one or more counterparts, each of which when delivered to the other
party shall be deemed an original and all of which together shall constitute one
and the same instrument. This Agreement shall become binding when any one or
more counterparts hereof, individually or taken together, bear the signatures of
both parties hereto. For the purposes hereof, a facsimile copy of this
Agreement, including the signature pages hereto, shall be deemed an original.
IN WITNESS WHEREOF, the parties to the Agreement by their duly authorized
representatives have executed this Agreement as of the date first written above.
VERTICALNET, INC. IMPRESSE CORPORATION
By: /s/ Xxxxxxx Xxxxx By: /s/ Xxxx Xxxxx
------------------------------- ----------------------------
Name: Name:
----------------------------- --------------------------
Title: Title:
---------------------------- -------------------------
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