"NOTE - Certain confidential technical and commercial information has been
redacted from this exhibit in order to preserve the confidentiality of such
information. All of the confidential information which has been redacted is on
file with the Securities and Exchange Commission. Redacted material is
indicated by the symbol, "[**REDACTED**]" where such redacted text would have
appeared in this exhibit."
XXXXXXXXXXXX.XXX
RESELLER AND MALL AGREEMENT
Wireless One
THIS RESELLER AND MALL AGREEMENT (the "AGREEMENT") is made and entered into as
of the date set forth on the Addendum attached hereto and by this reference made
a part hereof (the "ADDENDUM"), between and among XXXXXXXXXXXX.XXX, INC., a
California corporation, and NETGATEWAY, a Nevada corporation , on the one hand
(collectively, "STORESONLINE"), and the Reseller identified on the Addendum, on
the other hand ("RESELLER").
R E C I T A L S
A. Reseller is an established business entity, engaged in the business
of providing high speed wireless Internet access, data transmission and
telephone services and analog wireless multichannel subscription television
programming services primarily in small to mid-size markets (the "Systems") in
the southern and southeastern United States.
B. StoresOnline owns, operates and maintains an Internet
storefront-building services package comprised of certain services delivered
through StoresOnline's proprietary software, the standard features of which
are more particularly described on the Addendum (the "SERVICES").
C. The Services are delivered through the Internet and shall be made
available through a private, branded electronic exchange to be developed for
Reseller.
D. StoresOnline desires to (i) sell and license the Services to
Reseller for Reseller's own use and for resale and sublicense to end-user
customers or, with the written permission of StoresOnline, to other resellers
and (ii) develop an on-line electronic shopping mall to be branded around
Reseller's name, brand and image (as further described herein, the "Mall").
AGREEMENT
NOW, THEREFORE, on the basis of the foregoing recitals, and in
consideration of the mutual promises contained herein, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto covenant and
agree as follows:
1. SERVICES.
a. SCOPE OF AGREEMENT. This Agreement covers (i) the purchase,
licensing and sale of the Services and (ii) the design and development of the
Mall pursuant to and in accordance with the terms and conditions set forth on
the Addendum.
b. LICENSE GRANT; SALE OF SERVICES. StoresOnline grants to
Reseller, subject to the terms and conditions of this Agreement, the
non-exclusive right and license to resell and sublicense (in the case of
software products), the Services to Reseller's end-user customers or, with
the written permission of StoresOnline, to other resellers. In the case of
software products, Reseller acknowledges that such software is and will
remain proprietary to StoresOnline, is copyrighted and that Reseller acquires
no right, title or interest in or to any such software by this Agreement.
Reseller agrees to sublicense the Services hereunder to its end-user
customers or to other resellers, as the case may be, pursuant to the terms
hereof and the Standard License Agreement Terms set forthon Exhibit "A"
hereto, and to cause each of its customers or other resellers to sublicense
the Services pursuant to such terms, which terms, in the case of a reseller,
shall be deemed accepted upon store set-up, and in the case of end-user
customers, shall be accepted electronically as part of the storefront
registration process described below.
c. PRODUCT NAME. It is expressly agreed that the ownership and all
right, title and interest in and to the Services and any trademark, trade name,
patent or copyright relating to the Services is and will remain vested solely in
StoresOnline; PROVIDED, HOWEVER, that as permitted by this Agreement, Reseller
may use any existing or future trademark, trade name, patent or copyright
relating to the Services, such use to be limited to promoting, selling,
installing or maintaining the Services; and PROVIDED, FURTHER, that as permitted
by this Agreement, the Services may be branded around Reseller's name, brand and
image. Reseller shall use its best efforts during the term of this Agreement to
protect StoresOnline's trademarks, trade names, patents and copyrights, but
shall not be required to instigate legal action against third parties for any
infringement thereof. Reseller shall notify StoresOnline of any infringement as
soon as practicable after becoming aware of any such infringement. Reseller
shall not use, directly or indirectly, in whole or in part, StoresOnline's name
or any other trade name or trademark that is owned or used by StoresOnline in
connection with any product other than StoresOnline's products, without the
prior written consent of StoresOnline.
d. MALL DEVELOPMENT. StoresOnline shall develop the Mall in
accordance with the terms and conditions set forth herein and on the
Addendum. The Mall shall be branded around Reseller'name, brand and image
and shall link to the Reseller's branded StoresOnline solution. The Mall
will include an appropriate URL address, four to six featured products and
stores from various Reseller and third party advertisers, additional Reseller
and non-Reseller advertiser stores and products catalogued with text
references, and links to top-tier eCommerce sites. The Mall will also
include an appropriate search engine, commerce functionality, banner and
other appropriate advertising space and such other features as the parties
shall mutually agree. The Mall will be capable of cataloguing stores
independently or in conjunction with all other malls that belong to the
StoresOnline electronic mall network.
2. TERM OF AGREEMENT. The term of this Agreement shall commence as
of the execution hereof and continue for an initial term of two (2) years.
Such term shall automatically be extended for additional one-year terms
thereafter unless either party notifies the other, not less than thirty (30)
days prior to the expiration of the applicable term, of its intention not to
renew this Agreement.
a. Notwithstanding the foregoing, this Agreement may be terminated in
accordance with the provisions of Section 10.
b. Termination of this Agreement shall not relieve either party of any
obligations incurred prior to termination, including outstanding delivery and
payment obligations and other contractual commitments herein or mutually agreed
to by the parties from time to time in writing. The obligations set forth in
Sections 3d, 6b, 8, 10a, 12c, 12e, 12f and 12h are expressly intended to survive
termination of this Agreement.
3. PRICES AND TAXES.
a. PRICES FOR SERVICES . StoresOnline shall charge Reseller the
one-time Store Set-up Price set forth on the Addendum for each of Reseller's
customers. StoresOnline shall also charge Reseller the applicable Monthly
Base Wholesale Price set forth on the Addendum. The pricing set forth in the
Addendum is contingent upon Reseller's agreement to sell the Services only in
the Tier designated in the Addendum. In the event that Reseller sells
outside the Tier during the term of this Agreement, all Services from the
commencement of this Agreement shall be charged retroactively at the Default
Rate set forth in the Addendum.
b. PRICE ADJUSTMENTS FOR SERVICES. The prices for the Services are
subject to change by StoresOnline at any time, and shall become effective
ninety (90) days after the date of written notification of such change to
Reseller, provided, however, that StoresOnline shall not increase the Monthly
Base Wholesale Price more than ten percent (10%) per annum during any
applicable term of this Agreement.
c. RETAIL PRICES FOR SERVICES. On or before the first day of each
month, Reseller shall provide StoresOnline with a list of the Reseller prices
charged for each class of Accounts or for each Account (as hereinafter
defined).
d. PRICES FOR MALL DEVELOPMENT; MALL REVENUE SPLIT. All prices for
Mall design, development and operation provided hereunder shall be as set
forth on the Addendum. It is anticipated that the Mall will generate multiple
revenue streams. Reseller and StoresOnline shall split the net revenue
generated from all such revenue sources on a [**REDACTED**] basis. Such revenue
sources to be split shall include, but are not limited to: (1) eCommerce
advertisers provided by StoresOnline, ii) the pro rata share of Mall banner
advertising attributable to Reseller, (iii) click-through revenue from
eTeller sales; and (iv) revenue generated from featured product sales. The
parties hereto shall mutually agree to pricing in the event advertising space
is sold on a straight-buy basis.
e. TAXES. All prices for any services or products supplied
hereunder are exclusive of any federal, state or local sales, use, excise, AD
VALOREM or personal property taxes levied, or any fines, forfeitures or
penalties assessed in connection therewith, as a result of this Agreement or the
installation or use of services or products hereunder (collectively, but
exclusive of taxes based on StoresOnline's income, "Taxes"). Reseller or
Reseller's customer shall pay any and all such Taxes, or StoresOnline may, to
the extent required by applicable law, pay such Taxes for Reseller's account or
Reseller's customer's account, in which
case Reseller shall be obligated to reimburse StoresOnline for amounts so
paid. Any such Taxes which are so paid by StoresOnline will be invoiced to
and paid by Reseller in the manner set forth in Section 6 below.
4. FORECASTS. Within thirty (30) days of execution of this Agreement,
Reseller shall provide StoresOnline with a written, non-binding forecast of
Reseller's projected purchases of Services for the following twelve (12)
calendar months, with projected Account quantities to be identified by month.
Such forecast shall be updated quarterly by Reseller to set forth forecasts for
each subsequent twelve (12) month period.
5. CUSTOMER ACCOUNTS.
a. CUSTOMER ACCOUNT REGISTRATION PROCESS. The Services provided
hereunder include an online registration process that Reseller and its
customers will use to establish storefront accounts with StoresOnline (the
"Accounts"). In order to establish an Account, Reseller's customers must
complete an on-line registration process in accordance with the terms set
forth on the StoresOnline website. At the option of the customer,
registration may also be completed non-electronically. The general terms and
conditions for the use of Accounts shall be posted from time to time on the
StoresOnline web site, or in the event that StoresOnline establishes an
electronic exchange for Reseller, such information will be posted on
Reseller's exchange. The terms and conditions as posted shall, in all events
and at all times, be binding upon the Reseller and its customers which
establish Accounts. The terms and conditions governing such Accounts may be
amended or canceled, from time to time, upon thirty (30) days prior
electronic notice to Reseller. To establish an Account, Reseller's customers
must provide credit card information and authorize the payment of fees for
Services on a monthly basis in advance.
b. CONTINUATION OF CUSTOMER ACCOUNTS. Continuation of each Account is
subject to the timely payment of the monthly fees associated with such Account,
and failure to do so shall constitute grounds for StoresOnline to cancel and
terminate an Account.
6. BILLING AND PAYMENT TERMS.
a. INVOICING FOR SERVICES.. In the event Reseller requests that
StoresOnline invoice Reseller's customers directly, StoresOnline shall
electronically invoice Reseller's customers and directly charge against the
credit card accounts provided by such customers for that purpose during the
registration process on a monthly basis for the retail price of the Services
charged by Reseller. All fees due from customers shall be paid in advance and
are due on the first day of each month. In preparing the invoices and charging
against the applicable credit cards, StoresOnline shall use the most recent
Reseller retail prices provided to StoresOnline by Reseller pursuant to Section
3c hereof for the Accounts invoiced.
b. PAYMENT AND COLLECTION FOR SERVICES. . StoresOnline shall collect
the monthly fees set by Reseller from Reseller's customers and, after
deducting any monthly fees and expenses to which it is entitled hereunder,
shall remit the balance to Reseller on a monthly basis, together with a
statement setting forth the amounts collected, the amounts deducted and the
total amount remitted. In the event payment is not received by StoresOnline
within the specified time (net of 15 days), an additional late charge of one
and one half percent (1.5%) of the past due amount will be assessed for each
thirty (30) days outstanding, prorated on a daily basis. All payments for
Services shall be made in United States dollars.
c. DIRECT RESELLER BILLING FOR SERVICES. In the event that
Reseller chooses to xxxx its customers directly for the Services, Reseller shall
remit directly to StoresOnline the applicable monthly wholesale price (per
storefront). All such fees shall be paid in advance and are due on the first day
of each month.
d. BILLING FOR MALL RELATED CHARGES; ADVERTISING AND RELATED
REVENUES. StoresOnline shall invoice Reseller directly for all charges due
hereunder in connection with the design, development and operation of the Mall,
which charges shall be payable in full in advance. All revenues generated from
the Mall (including advertising and related revenues) which are to required to
be split between StoresOnline and Reseller pursuant to paragraph 3(d) hereof
shall be invoiced and collected by StoresOnline. StoresOnline shall thereafter
forward all amounts due, if any, to Reseller (net 30 days) at the address
provided on the signature page hereto, together with a statement setting forth
the total revenue amounts collected, the amounts thereof payable to Reseller and
the total amount remitted.
7. REAL TIME PAYMENT PROCESSING. In the event that a customer wishes to
use the StoresOnline real-time credit card payment processing option, such
customer must establish a customer account with an FDIC network bank and must
open an account with a participating credit-card processor.
8. DISCLAIMER OF WARRANTIES AND LIMITATIONS OF LIABILITY.
a. DISCLAIMER OF WARRANTY. EXCEPT AS SPECIFICALLY PROVIDED HEREIN,
THERE ARE NO, AND STORESONLINE EXPRESSLY DENIES, REJECTS AND DISCLAIMS ANY,
WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES
OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR WARRANTIES OF THE
CORRECTNESS, ACCURACY, PRECISION, TIMELINESS OR COMPLETENESS OF ANY INFORMATION
OR SERVICES PROVIDED HEREUNDER.
b. LIMITATION OF LIABILITY. STORESONLINE, ITS DIRECTORS, OFFICERS,
AFFILIATES, EMPLOYEES AND AGENTS SHALL NOT BE LIABLE TO RESELLER OR TO ANY THIRD
PARTY FOR ANY LOSS OR DAMAGE, WHETHER DIRECT OR INDIRECT, RESULTING FROM DELAYS
OR INTERRUPTIONS OF SERVICE DUE TO MECHANICAL ELECTRICAL OR WIRE DEFECTS OR
DIFFICULTIES, STORMS, STRIKES, WALK-OUTS, EQUIPMENT OR SYSTEMS FAILURES, OR
OTHER CAUSES OVER WHICH STORESONLINE, ITS DIRECTORS, OFFICERS, AFFILIATES,
EMPLOYEES OR AGENTS AGAINST WHOM LIABILITY IS SOUGHT, HAVE NO REASONABLE
CONTROL, OR FOR LOSS OR DAMAGE, DIRECT OR INDIRECT, RESULTING FROM INACCURACIES,
ERRONEOUS STATEMENTS, ERRORS OF FACTS, OMISSIONS OR ERRORS IN THE TRANSMISSION
OR DELIVERY OF THE SERVICES, OR ANY DATA PROVIDED AS A PART OF THE SERVICES
PURSUANT TO THIS AGREEMENT, EXCEPT TO THE EXTENT CAUSED BY THE NEGLIGENCE OR
WILLFUL MISCONDUCT OF STORESONLINE. IN ALL CASE ARISING FROM EVENTS OCCURRING
DURING THE TERM OF THIS AGREEMENT, WHETHER BASED UPON TORT, CONTRACT, WARRANTY,
INDEMNITY, CONTRIBUTION OR OTHERWISE, DAMAGES SHALL BE LIMITED TO, AND RESELLER
AGREES NOT TO MAKE ANY CLAIMS OR CLAIMS EXCEEDING TWENTY FIVE THOUSAND DOLLARS
($25,000), REGARDLESS OF HOW MANY CLAIMS RESELLER MAY HAVE; PROVIDED, HOWEVER,
THAT THE DOLLAR LIMITATION SET FORTH IN THIS SENTENCE SHALL NOT APPLY TO MONIES
DUE TO RESELLER IN CONNECTION WITH ANY OF RESELLER'S ACCOUNTS ESTABLISHED
PURSUANT TO THIS AGREEMENT. IN ADDITION, IN NO EVENT SHALL EITHER PARTY BE
LIABLE TO THE OTHER OR TO ANY THIRD PARTY FOR SPECIAL, INDIRECT, INCIDENTAL OR
CONSEQUENTIAL LOSSES OR DAMAGES WHICH THE OTHER PARTY OR SUCH THIRD PARTY MAY
INCUR OR EXPERIENCE ON ACCOUNT OF ENTERING INTO OR RELYING ON THIS AGREEMENT OR
UTILIZING THE SERVICES, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES OR WHETHER SUCH DAMAGES ARE CAUSED, IN WHOLE OR IN
PART, BY THE NEGLIGENCE OF THE OTHER PARTY.
C. TIME FOR MAKING CLAIMS. ANY SUIT OR ACTION BY RESELLER AGAINST
STORESONLINE, ITS DIRECTORS, OFFICERS, AFFILIATES, EMPLOYEES, AGENTS, SUCCESSORS
OR ASSIGNS, BASED UPON ANY ACT OR OMISSION ARISING OUT OF OR RELATING TO THIS
AGREEMENT, OR SERVICES PERFORMED HEREUNDER, OR ANY ALLEGED BREACH THEREOF, SHALL
BE COMMENCED WITHIN TWO (2) YEARS OF THE FIRST OCCURRENCE GIVING RISE TO SUCH
CLAIM OR BE FOREVER BARRED. THIS PROVISION DOES NOT MODIFY OR OTHERWISE AFFECT
THE LIMITATION OF STORESONLINE'S LIABILITY SET FORTH IN THIS PARAGRAPH 8 OR
ELSEWHERE IN THIS AGREEMENT NOR THE INFRINGEMENT OBLIGATIONS OF STORESONLINE
SET FORTH IN PARAGRAPH 8d.
D. INFRINGEMENT. StoresOnline will indemnify and hold Reseller harm-
less from and against any claim by third parties pertaining to the infringement
of U.S. copyrights, trademarks or patents arising solely from Reseller's use of
any of computer programs or software products utilized by StoreOnline to provide
the Services as authorized hereunder, provided that such computer programs or
software products have not been altered, revised or modified by Reseller in a
manner that causes the alleged infringement, and further provided that: (i)
Reseller promptly notifies StoresOnline in writing of such claim; (ii)
StoresOnline will have sole control of the defense of any action on such claim
and of all negotiations for its settlement or compromise; (iii) Reseller
cooperates with StoresOnline in every reasonable way to facilitate the
settlement or defense of such claim; and (iv) should such Services become or, in
StoresOnline's opinion, be likely to become, the subject of an infringement
claim, Reseller will permit StoresOnline, at StoresOnline's expense, to (1)
procure for Reseller the right to continue using such Services, or (2) replace
or modify the same to become functionally equivalent yet non-infringing, or (3)
upon the failure of (1) and (2) above, terminate, without penalty, Reseller's
use of the affected
Services, in which event StoresOnline will refund to Reseller on a pro-rata
basis any prepaid amounts related thereto. Notwithstanding the foregoing,
StoresOnline shall not be liable to indemnify Reseller for any claims of
infringement by third parties relating in any manner to the contents of the
Mall or any of the third party merchants' storefronts contained therein
provided by Reseller or any of its end-user customers.
e. DISCLAIMER. THE WARRANTIES AND CONDITIONS SET FORTH HEREIN AND THE
OBLIGATIONS AND LIABILITIES OF STORESONLINE HEREUNDER ARE IN LIEU OF, AND BUYER
HEREBY WAIVES, ALL EXPRESS AND IMPLIED WARRANTIES AND CONDITIONS, INCLUDING,
WITHOUT LIMITATION, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE.
9. DOCUMENTATION AND TRAINING. Provided that Reseller has met the
minimum performance standards set forth elsewhere in this Agreement,
StoresOnline shall, on a semi-annual basis, provide free-of-charge a one (1) day
training program for employees designated by Reseller at the Reseller corporate
headquarters. Additional training by StoresOnline shall be made available to
Reseller at StoresOnline's standard rates. All expenses of the trainees under
this Section 9 shall be borne solely by Reseller.
10. DEFAULT.
a. RESELLER'S DEFAULT. The failure by Reseller to make any payment
required hereunder or a material breach by Reseller of its obligations hereunder
shall constitute an event of default by Reseller. Upon the occurrence of an
event of default, StoresOnline shall provide Reseller with written notice
specifying the nature of such default. If Reseller has not cured such default
within thirty (30) days after receipt of such notice, StoresOnline may, at its
sole discretion, terminate this Agreement and/or seek any other available
remedies available at law or in equity; PROVIDED, HOWEVER, that the cancellation
of this Agreement shall not prevent Reseller from reselling the Services (and
sublicensing the software component thereof) previously paid for by Reseller and
sublicenses previously granted by Reseller pursuant hereto shall not be affected
by such termination.
b. STORESONLINE'S DEFAULT. A material breach by StoresOnline of its
obligations hereunder shall constitute an event of default by StoresOnline.
Upon the occurrence of an event of default by StoresOnline, Reseller shall
provide StoresOnline with written notice specifying the nature of such default.
If StoresOnline fails to cure such default within thirty (30) days after receipt
of such notice, Reseller may, at its sole option, terminate this Agreement.
c. INSOLVENCY. Except for the pending Chapter 11 bankruptcy
proceeding of Reseller, the commencement of any proceeding (voluntary or
involuntary) in bankruptcy or insolvency by or against either party hereto,
or the appointment (with or without the party's consent) of an assignee for
the benefit of creditors or a receiver with respect to either party hereto
shall constitute an event of default hereunder, and the non-defaulting party
may elect to terminate this Agreement immediately.
11. DISPUTE RESOLUTION.
a. It is the intent of the parties that all disputes arising under this
Agreement be resolved expeditiously, amicably, and at the level within each
party's organization that is most knowledgeable about the disputed issue. The
parties understand and agree that the procedures outlined in this Paragraph 11
are not intended to supplant the routine handling of inquiries and complaints
through informal contact with customer service representatives or other
designated personnel of the parties. Accordingly, for purposes of the
procedures set forth in this paragraph, a "DISPUTE" is a disagreement that the
parties have been unable to resolve by the normal and routine channels
ordinarily used for such matters. Before any dispute arising under this
Agreement, other than as provided in subparagraph e. below, may be submitted to
arbitration, the parties shall first follow the informal and escalating
procedures set forth below.
(1) The complaining party will notify the other party in writing of
the dispute, and the non-complaining party will exercise good faith efforts to
resolve the matter as expeditiously as possible.
(2) In the event that such matter remains unresolved for thirty (30)
days after the delivery of the complaining party's written notice, a senior
representative (vice president or above) of each party shall meet or confer
within ten (10) business days of a request for such a meeting or conference by
either party to resolve such matter.
(3) In the event that the meeting or conference specified in (2)
above does not resolve such matter, a senior officer (senior vice-president or
above) of each party shall meet or confer within ten (10) business days of the
request for such a meeting or conference by either party to discuss and agree
upon a mutually satisfactory resolution of such matter.
(4) If the parties are unable to reach a resolution of the dispute
after following the above procedure, or if either party fails to participate
when requested, the parties may proceed in accordance with subparagraph b.
below.
b. Except as provided in subparagraph e. below, any dispute arising
under this Agreement shall, after utilizing the procedures in subparagraph
a., be resolved by final and binding arbitration in Long Beach, California,
before a single arbitrator selected by, and in accordance with, the rules of
commercial arbitration of the American Arbitration Association. Each party
shall bear its own costs in the arbitration, including attorneys' fees, and
each party shall bear one-half of the cost of the arbitrator.
c. The arbitrator shall have the authority to award such damages as are
not prohibited by this Agreement and may, in addition and in a proper case,
declare rights and order specific performance, but only in accordance with the
terms of this Agreement.
d. Either party may apply to a court of general jurisdiction to
enforce a arbitrator's award, and if enforcement is ordered, the party
against which the order is issued shall pay the costs and expenses of the
other party in obtaining such order, including reasonable attorneys' fees.
e. Notwithstanding the provisions of subparagraphs a. and b. above, any
action by StoresOnline to enforce its rights under Paragraph 12e of this
Agreement or to enjoin any infringement of the same by Reseller may, at
StoresOnline's election, be commenced in the state or federal courts of
California, and Reseller consents to personal jurisdiction and venue in such
courts for such actions.
12. GENERAL.
a. ENTIRE AGREEMENT; AMENDMENT. This Agreement constitutes the entire
agreement between StoresOnline and Reseller and supersedes all previous
understandings, negotiations and proposals, whether written or oral. This
Agreement may not be altered, amended or modified except by an instrument in
writing signed by duly authorized representatives of each party. In the event
that any one or more provisions contained in this Agreement should for any
reason be held to be unenforceable in any respect, such unenforceability shall
not affect any other provisions hereof, and this Agreement shall be construed as
if such unenforceable provision had not been contained herein.
b. FORCE MAJEURE. Neither party shall be liable to the other for
delays or failures to perform an obligation to the other hereunder if such
delay or failure to perform is due to any act of God, acts of civil or
military authority, labor disputes, fire, riots, civil commotion's, sabotage,
war, embargo, blockage, floods, epidemics, delays in transportation,
inability beyond StoresOnline's reasonable control to obtain necessary labor,
materials or manufacturing facilities, or when due to governmental
restrictions, including the inability of StoresOnline to obtain appropriate
U.S. export license approval or the subsequent suspension of same. In the
event of any such delay or failure, the parties shall have an additional
period of time equal to the time lost by reason of the foregoing in which to
perform hereunder.
c. GOVERNING LAW. This Agreement shall be governed in all respects by
the laws of the State of California, without regard to principles of choice of
law.
d. ASSIGNMENT. Reseller shall not assign this Agreement or any rights
hereunder without the prior written consent of StoresOnline, which consent shall
not be unreasonably withheld; provided, however, that either party may assign
this Agreement to a subsidiary or affiliate corporation provided the assigning
party remains wholly liable for the performance of all duties and obligations
hereunder.
e. DISCLOSURE OF INFORMATION. Reseller acknowledges that, in the
course of purchasing Services and meeting its obligations under this
Agreement, it will obtain information relating to the Services and to
StoresOnline, which is of a confidential and proprietary nature
("STORESONLINE PROPRIETARY INFORMATION"). Such StoresOnline Proprietary
Information may include, but is not limited to, trade secrets, know-how,
inventions, techniques, processes, programs, schematics, data, customer
lists, financial information and sales and marketing plans.
Reseller shall at all times during the term of this Agreement and for
three years after its termination, keep in confidence and trust from any person
or entity all StoresOnline Proprietary Information and shall not disclose or use
such StoresOnline Proprietary Information without the prior written consent of
StoresOnline, unless compelled to disclose such StoresOnline Proprietary
Information by judicial or administrative process (including, without
limitation, in connection with obtaining the necessary approvals of this
Agreement and the transactions contemplated hereby of governmental or regulatory
authorities) or by other requirements of law. Upon termination of this
Agreement, Reseller shall promptly return to StoresOnline all StoresOnline
Proprietary Information under its control and all copies thereof.
Neither party shall disclose the specific terms of this Agreement to any
third parties except as may be mutually agreed or as required by law or the
order of a court of competent jurisdiction.
The above limitations on disclosure of StoresOnline Proprietary
Information shall not apply to information which becomes publicly available
through no act of Reseller, is released by StoresOnline in writing with no
restrictions, is lawfully obtained by Reseller without breach of this Agreement
from third parties without obligations of confidentiality, is previously known
by Reseller without similar restrictions as shown by documents in its possession
prior to disclosure by StoresOnline or is independently developed by Reseller.
f. COMPLIANCE WITH LAW. Reseller shall comply with all applicable law
the violation of which would have a material adverse effect on StoresOnline or
its business, including the export control laws of the United States of America
and prevailing regulations which may be issued from time to time by the United
States Department of Commerce and any export control regulations of the United
States and those countries involved in transactions concerning the exporting,
importing and re-exporting of Services purchased under application of these
terms and conditions. Reseller shall also comply with the United States Foreign
Corrupt Practices Act and shall indemnify StoresOnline from violations of such
act by Reseller. This provision shall survive any termination or expiration of
the Agreement.
g. EXERCISE OF REMEDIES. Any delay or omission by either party to
exercise any right or remedy under this Agreement shall not be construed to be a
waiver of any such right or remedy or any other right or remedy hereunder.
h. HEADINGS. Headings contained in this Agreement are for convenience
only, are not a part of this Agreement, and do not in anyway interpret, limit or
amplify the scope, extent or intent of this Agreement or any of the provisions
hereof.
i. REGULATORY APPROVAL. Reseller warrants that the Services and the
Mall, when utilized with its own products, will comply with all applicable
industry and governmental standards and requirements. StoresOnline assumes no
responsibility or liability for these governmental and regulatory standards or
requirements, which liability and responsibility is assumed entirely by
Reseller. Upon request, StoresOnline will provide copies of regulatory
approvals to Reseller.
k. BRANDING. StoresOnline shall have the right to place a "POWERED BY
NETGATEWAY" or "POWERED BY STORESONLINE" byline in a prominent mutually agreed
upon location on each storefront site and on each Mall site.
l. PUBLICITY. StoresOnline (or its parent company, Netgateway, Inc.)
shall have the right to inform its customers and the public that StoresOnline
has entered into this Agreement with Reseller. Each party may use the other's
name or the name of its customers in marketing the Services and the development
of the Mall and may link to each other's websites, but neither party will
perform any actions which will harm the other's or its customers name and
reputation.
m. NOTICES. Any notice required in connection with this Agreement
shall be given in writing and shall be deemed effective upon personal delivery
or three business days after deposit in the United States mail, registered or
certified, postage prepaid and addressed to the party entitled to such notice at
the address indicated below such party's signature line on this Agreement or at
such other address as such party may designate by ten (10) days' advance written
notice to the other party. All facsimile notices shall be confirmed by written
notice mailed, as provided above, within five (5) days of the date of the
facsimile is sent. Once confirmed, the notice shall be effective as of the date
of the facsimile.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be
effective as of the date set forth in the Addendum.
XXXXXXXXXXXX.XXX, INC., A CALIFORNIA CORPORATION
NETGATEWAY, A NEVADA CORPORATION
By /s/ Xxx X. Xxxxxxx, Xx.
----------------------------------------------------
Name: Xxx Xxxxxxx
Their: President
Address for Notices:
000 Xxxxxxxxx, Xxxxx 000
Xxxx Xxxxx, XX 00000
(000) 000-0000
WIRELESS ONE, INC.,
By /s/ Xxxxxx X. Xxxxx, Xx.
-------------------------------
Name: Xxxxxx X. Xxxxx, Xx.
Its: Chief Operating Officer
Address for Notices:
0000 Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Technical Contact:
Telephone:
E-mail Address:
ADDENDUM
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THIS ADDENDUM MUST BE KEPT
CONFIDENTIAL IN ITS ENTIRETY.
-----------------------------
NAME OF RESELLER WIRELESS ONE, INC.
DATE OF AGREEMENT: MAY 20
STANDARD FEATURE SET
CATALOGS
- International Currencies
- Weight Units: Kilograms, Grams, Pounds and Ounces
- Sending Methods: Internet, Fax/Mail and Phone
- Faxed Internet Orders
- Payment Methods: VISA, MasterCard, American Express, Discover and JCB
- Custom Payment Methods
- Standard Shipping Destinations: United States, Canadian Provinces and
World Countries
- Custom Shipping Destinations
- Multiple Shipping Methods and Regions
- Shipping Formula Variables: Quantities Ordered, Weight and Subtotal
- Shipping Formula Functions: Minimum, Maximum and Range
- Custom Tax Rates
- Custom Survey Questions: Long Answer, Short Answer, Multiple Choice and
Single Choice
- Custom Subtotal Items: Fixed, User Enterable and Optional
- Users and Passwords
CATEGORIES
- Unlimited Categories
- Full Description
- Image
PRODUCTS
- Base Item Number
- Description: Full Description
- Image
- Price
- Sale Price
- Unique Sale Price for Each Catalogue
- Non-Taxable Products
- Weight
- Category
- Multiple Product Options (i.e., Color, Size)
- Multiple Product Option Items (i.e., Red, Green, Blue)
- Custom Item Numbers based on Options
- Custom Pricing based on Options
- Option Conflicts
- Quantity Discounts
- Links to Related Items
- Links to other URL's
- Preview product pages
- Generated HTML code to copy and paste into existing sites
- Graphical pricing for easy integration into existing sites
- Import product information from a test-delimited file
ORDERS
- E-mail notification of new orders
- Order Status
- Waybill Number and Shipper
- Custom Notes
- End-user Order Tracking
- Export Order Information
STORESONLINE POINT OF SALE
- Multiple Merchant Numbers
- Automatic authorization of orders sent over the Internet
- Manual Authorizations
- Credits
- Automatic Settlement
- Freeze and Thaw Transactions
STORESONLINE HOSTING
- Home Page Builder
- Unique URL
- 10 MB Free
- Virtual hosting of existing domain names
- Professionally designed templates
- Customize your own templates
STORESONLINE SEARCH
- Full Text Search Engine
- Full Word Listing
- Phrase or Boolean Searching
- Re-index your site anytime
- Integrate into existing sites
PRICING FOR STOREFRONT SERVICES:
Up to 100 Products:
Monthly Base Wholesale Price: Discount Threshold: [**REDACTED**]
Suggested Retail Price:
Reseller Retail Price: [**REDACTED**] Discount for Reseller:
Default Retail Price:
101 to 300 Products:
Monthly Base Wholesale Price: One Time Store Set-up Fee:
Suggested Retail Price:
Reseller Retail Price: [**REDACTED**] Up to 100 products
Default Retail Price: Base Wholesale Price:
Suggested Retail Price: [**REDACTED**]
301 to 1000 Products: Reseller Retail Price:
Monthly Base Wholesale Price: Additional products may be
Suggested Retail Price: included at $.50 per product
Reseller Retail Price: [**REDACTED**] Scanning:[**REDACTED**] per image
Default Retail Price: (first 10 images [**REDACTED**])
Tier: Reseller (Sells to end user customers or, with the prior written
consent of StoresOnline, to other Resellers)
MALL DEVELOPMENT SERVICES AND PRICES
1. DEVELOPMENT. StoresOnline shall design and develop one on-line
Mall, to be branded around Reseller's name, brand and image. The Mall will be
capable of cataloguing stores independently or in conjunction with other malls
that belong to the StoresOnline mall network.
2. PRICING. Reseller shall pay a one-time development fee for the
Mall to be developed hereunder in the amount of $[**REDACTED**], which
amount shall be payable upon execution of this Agreement. Reseller shall
also pay StoresOnline a monthly maintenance fee equal to [**REDACTED**]
[**REDACTED**] for the duration of this Agreement. Such maintenance fee shall
include ongoing marketing support, including development of Mall content,
training of Reseller salespeople, development (but not printing) of Reseller
branded collateral material and periodic distribution of advertising spots to
promote the Mall and the Reseller branded StoresOnline service which will be
updated quarterly.
3. PROMOTION. Reseller will promote the Mall with a total of 1,000 30
second spots every month jointly developed by Reseller and StoresOnline in
all Systems in which it can insert advertising. In areas where Reseller does
not have the ability to perform ad insertions, it will instead promote the
Mall through "crawl space" listings. Reseller shall also promote the Mall and
storefront locations on its homepage with banner advertisements and links
provided by StoresOnline. Likewise, StoresOnline will promote the Mall and
Reseller StoresOnline solution across its network of various online malls.
4. PRESS RELEASE. It is the intention of both StoresOnline and
Reseller to issue a joint press release announcing this Agreement.
5. CUSTOM COMMERCE DEVELOPMENT. In the event that Reseller develops
leads which purchase custom eCommerce services from StoresOnlne, StoresOnline
shall compensate Reseller [**REDACTED**] percent of the initial development
fee due to StoresOnline in connection with such custom solution. Revenues
subject to this compensation must be pre-approved by StoresOnline. Examples
of this sort of revenue include, but are not limited to, the development of a
web site, mall or eCommerce presence for a customer of Reseller or one of its
agents.
6. RAPID MALL DEVELOPMENT. To further develop the Mall initially,
StoresOnline shall waive the Store Set-up Fee for the first 50 stores located
at the Mall.
EXHIBIT "A"
STANDARD LICENSE AGREEMENT TERMS TO BE AGREED TO BY END-USER CUSTOMER OR OTHER
RESELLER
1. LICENSE. This License allows you to use any software associated
with the provision of the Services.
2. RESTRICTIONS. You may not use, copy, modify or transfer the
program, or any copy, modification or merged portion, in whole or in part,
except as expressly provided for in this License. If you transfer possession of
any copy, modification or merged portion of the program to another party, your
License is automatically terminated.
3. TERM. The License is effective until terminated. You may
terminate it at any other time by notifying Reseller of your intent to do so.
The License will also terminate upon the occurrence of certain events set forth
elsewhere in this Agreement. Upon such termination, you agree to destroy the
program together with all copies, modifications and merged portions in any form.
4. EXPORT LAW ASSURANCES. You agree that neither the pogrom nor any
direct product thereof is being or will be shipped, transferred or re-exported,
directly or indirectly, into any country prohibited by the US Export
Administration Act and the regulations thereunder or will be used for any
purpose prohibited by the Act.
5. LIMITED WARRANTY. The program is provided "AS IS" without
warranty of any kind, either expressed or implied, including, but not limited
to, the implied warranties of merchantability and fitness for a particular
purpose. The full text of the warranty is provided in the user manual.
6. LIMITED LIABILITY. In no event will StoresOnline be liable to you
for any damages, including any lost profits, lost savings or other incidental or
consequential damages arising out of the use of inability to use such program
even if StoresOnline has been advised of the possibility of such damages, or for
any claim by any other party.
7. GENERAL. If you are a Government end-user, this License conveys only
"RESTRICTED RIGHTS," and in its use, disclosure and duplication are subject to
Federal Acquisition Regulations, subparagraph (c)(1)(11) 52.227-7013. (See U.S.
Government End-User provisions in manual.) This License will be construed under
the laws of the State of California, except for that body of law dealing with
conflicts of law. If any provision of the License shall be held by a court of
competent jurisdiction to be contrary to law, that provisions shall be enforced
to the maximum extent permissible, and the remaining provisions of this License
shall remain in full force and effect.
