Exhibit 10.15
E-COMMERCE SERVICES AND SUBLICENSE AGREEMENT
XxxXxxx.xxx / The XxxXxx.xxx
This E-Commerce Services and Sublicense Agreement (the "Agreement") is made this
25 day of February, 2000 (the "Effective Date") by and between The XxxXxx.xxx,
Inc., a Florida corporation ("Company") and XxxXxxx.xxx, Inc., an Arizona
corporation ("XxxXxxx.xxx") on the terms and conditions set forth herein.
1. Introduction.
1.1 XxxXxxx.xxx is an online portal and web site community, which
primarily markets to the Latino community. XxxXxxx.xxx is engaged in,
among other things, providing content, community and services to its
subscribers and others (together with any affiliated or successor
services thereto, the "XxxXxxx.xxx Service").
1.2 The Company provides third parties with the content, applications and
services necessary to create, configure, maintain and conduct certain
business through electronic commerce ("e-commerce") sites via the
Internet substantially similar to the e-commerce site currently
maintained by the Company at xxxx://xxx.xxxxxxxxx.xxx (together with
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any successor sites thereto, the "Company Site"). Such services to be
provided hereunder (the "Company Service") include, but are not
limited to, product offerings, transaction processing, credit/debit
card validation, fraud detection, order tracking, transaction
accounting, reporting and records retention, vendor communications and
relations, customer profile maintenance, and all such other
capabilities as may be necessary to operate a complete e-commerce
store for consumer products. As part of the Company Service, the
Company utilizes certain proprietary technology (the "Technology")
that the Company has an exclusive license to market. The exclusive
license enables the Company, among other things, to process e-commerce
transactions received over the Internet in an efficient and effective
manner and to track customer orders from the time the order is placed
through delivery to the customer's designated shipping address.
1.3 XxxXxxx.xxx desires to receive, and the Company desires to provide,
the Company Service and sublicense the Technology in order to create
an online store (the "XxxXxxx.xxx Mall") to be made available to users
of the XxxXxxx.xxx Service and others ("Users") throughout the Term
(as defined in Section 5.1).
1.4 Accordingly, XxxXxxx.xxx and the Company hereby agree as follows:
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2. XxxXxxx.xxx Mall.
2.1 Storefront Design and Display. The Company will develop, with the
input and assistance of XxxXxxx.xxx, the pages of the XxxXxxx.xxx
Service that constitute the XxxXxxx.xxx Mall. Such pages will promote
and describe the products offered by the Company Service. XxxXxxx.xxx
will design the style, look and feel of such pages at its sole
discretion, and may change such design at any time. Each page of the
XxxXxxx.xxx Mall will include, at XxxXxxx.xxx's request, branding for
XxxXxxx.xxx and may include hyperlinks to other pages maintained by or
for XxxXxxx.xxx or to sites of third parties as determined by
XxxXxxx.xxx in its sole discretion. The Company will execute and
implement any changes within a commercially reasonable time after
receiving such changes.
2.2 The QuePasa Mall site will offer all products currently available to
the Company. After 30 days from the date the QuePasa mall is
live,Product Selection and Content. XxxXxxx.xxx will be entitled to
select the products or categories of products to be displayed and
offered within the XxxXxxx.xxx Mall, and may elect to display and list
any or all (or none) of the products available on the Company Service.
Further, XxxXxxx.xxx may elect to display all or any part of the
Product Information in connection therewith, or any information in
addition thereto or in lieu thereof. At XxxXxxx.xxx's request, the
Company will provide reasonable assistance and marketing expertise to
XxxXxxx.xxx to assist XxxXxxx.xxx in the selection and display of
products. With respect to each product offered through the Company
Service (the "Product Selection"), the Company will display within the
XxxXxxx.xxx Mall (i) a short description, review or other reference
pertaining to that product, as well as pricing, shipping and other
information (the "Product Information"); and (ii) an opportunity for
the User to purchase such product. As between XxxXxxx.xxx and the
Company, the Company will be responsible for the content of the
Product Information.
2.3 Hosting and Maintenance; Technical Specifications. The Company will
host and maintain all pages of the XxxXxxx.xxx Mall on the Company's
servers (or on servers within its reasonable control) and will provide
all computer hardware, software and personnel necessary to operate and
maintain the XxxXxxx.xxx Mall as a functional site accessible to
Users.
2.4 Content Standards. The Company will not, within the Service, permit to
appear, including by way of links, sublinks or otherwise, any
messages, data, images, programs or products that (i) are illegal; or
(ii) would knowingly or intentionally on the part of the Company
violate the property rights of others, including unauthorized
copyrighted text, images or
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programs, trade secrets or other proprietary information, or
trademarks or service marks used in an infringing fashion.
2.5 Order Processing and Fulfillment. As between XxxXxxx.xxx and the
Company, the Company will be responsible for processing User orders,
overseeing the preparation of order forms, processing User payments,
cancellations and returns, tracking sales through the XxxXxxx.xxx
Mall, providing XxxXxxx.xxx with reports summarizing such sales
activity, and all other functions and duties necessary and incidental
to the Company Service.
2.6 Returns and Refunds. As between XxxXxxx.xxx and the Company, the
Company will be responsible for administering any returns and refunds
for products ordered through the Company Service. The Company will
provide XxxXxxx.xxx with a monthly report of returns, refunds,
cancellations, chargebacks and bad debts in sufficient detail to allow
the calculation of Net Merchandise Profit.
2.7 Advertising revenue. Each party may keep its respective advertising
revenue generated from their site. For purposes of clarity,
XxxXxxx.xxx is entitled to advertising revenue generated from the
XxxXxxx.xxx Mall
2.8 The Company will make available a Spanish version, mechanically
translated, immediately. The Company will provide a fluent Spanish
version within 6 months.
2.9 XxxXxxx.xxx may, in its sole discretion, exclude from the quepasa Mall
any links which would cause a user to leave the quepasa Mall.
2.10 XxxXxxx.xxx may, in its sole discretion, exclude any manufacturer or
product category from the quepasa Mall as defined in section 2.2. In
addition, QuePasa may, to the extent available, customize or exclude
specific individual product offerings. Any and all customization work
on the mall must be approved by the Company, of which approval will
not be unreasonably withheld.
3. Additional Obligations.
3.1 Reporting. On or before the 30 days following the end of each month
during the Term, the Company will provide to XxxXxxx.xxx a report
detailing all transactions on the XxxXxxx.xxx Mall during the previous
month. Such report will reflect the calculation of Net Merchandise
Profits earned by XxxXxxx.xxx for such month, which amount should
agree to the funds received by XxxXxxx.xxx for such month pursuant to
Section 4. In the event of any difference or discrepancy, the Company
will accompany the transmission of such funds with an exception or
reconciliation report.
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Such report will also detail the number of purchases made in such
month by Users through the XxxXxxx.xxx Mall.
3.2 Quality of Services. The Company agrees and represents that the
Company Services, including the Product Selection and Product
Information, will be at least equal, in terms of quality, accuracy,
scope and timeliness, as any similar services made available by the
Company to other users or partners. Unless otherwise requested by
XxxXxxx.xxx, throughout the Term the Company Services will include all
of the information, features and functionality, and performance
substantially similar to other Company Client Sites.
3.3 Responsibility for Products and Services. The Company acknowledges and
agrees that, as between the Company and XxxXxxx.xxx, the Company will
be solely responsible for the operation of the Company Services. The
Company acknowledges and agrees that XxxXxxx.xxx does not intend to,
and will not be required to, edit or review for accuracy any of the
Product Information, with the exception of Spanish language
translations. The Company will provide XxxXxxx.xxx with the name and
contact information of an individual who will act as a point of
contact between XxxXxxx.xxx and the Company on all customer service
issues, and the Company will update such information from time to time
as necessary. XxxXxxx.xxx is not authorized to make, and agrees not to
make, any representations or warranties concerning the Company, except
to the extent (if any) contained within the Product Information
delivered to XxxXxxx.xxx by the Company. The foregoing restriction
will not limit XxxXxxx.xxx's ability to make editorial statements
regarding the Company or the Products.
3.4 Prohibited Products and Content. Company will not provide, sell or
offer to sell, or otherwise make available through links, sublinks or
otherwise, the following products or content (or services related to
the same): pharmaceutical or any other controlled substances; illegal
drugs, illegal drug contraband; alcohol; firearms; weapons; pirated
computer programs; illicitly pornographic sexual products; illegal
goods; or computer software viruses or software designed to create a
virus.
3.5 Technical Support. The Company will use its best efforts to provide
all necessary maintenance and technical support to XxxXxxx.xxx in
connection with XxxXxxx.xxx's use of the Technology or the Company
Services. The Company will provide XxxXxxx.xxx with three technical
contacts that will be accessible 24 hours per day, seven days per
week, 365 days per year. The Company will use its best efforts to
respond to all requests for support by XxxXxxx.xxx within four hours,
day or night. The Company will notify XxxXxxx.xxx at least three days
in advance of any
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planned service outage period for systems maintenance or other
purposes, which outage periods will not occur during peak traffic
hours.
3.6 Modifications to Services. Except for the addition of new tools and
services, the Company will modify the Company Services only upon the
prior written consent of XxxXxxx.xxx.
3.7 Most Favored Customer. If the Company offers to any new or existing
partner any feature or function that the company may provide to any
other client, such features, functions or services will be available
to XxxXxxx.xxx at the lowest cost any client pays or obtains free of
charge.
3.8 Fraudulent Transactions. The Company will provide XxxXxxx.xxx with a
prompt report of any fraudulent order placed through the XxxXxxx.xxx
Mall of which it has knowledge, including the date, screenname or e-
mail address, and amount associated with such order, promptly
following the Company's obtaining knowledge that the order is, in
fact, fraudulent.
3.9 Page Impressions. The Company shall disavow and not take credit for
the page impressions that it receives on the XxxXxxx.xxx Mall. The
Company shall provide to XxxXxxx.xxx a monthly report of page
impressions on the XxxXxxx.xxx Mall.
3.10 To the extent it is commercially reasonable, the Company will
cooperate with XxxXxxx.xxx to assist them in identifying and creating
their own buying agreements with their own vendors.
4. Fees and Payments.
4.1 Certain Definitions. For purposes of this Agreement:
(a) "Net Merchandise Profits" shall equal Qualifying Product Sales,
less the cost of the product sold, taxes, gift-wrapping,
shipping, handling, customer service fees, credit card
processing, fraud and detection fees, charge backs, bad debt,
credits for refunds, cancellations, any third party related
return costs and returned products and a BigHub transaction fee
equal to 6% of the cost of goods sold. In no event will the
amounts related to customer service fees when coupled with all
other costs as defined here exceed the Net Merchandise Profits.
(b) Customer Service Costs will only be accounted for and related to
the direct and sole support of the QuePasa Mall.
(c) A "Qualifying Product Sale" occurs when a customer (i) places an
order on the pages of the XxxXxxx.xxx Mall, (ii) purchases the
product(s) using the automated ordering system of the Company
Service, (iii) accepts delivery of the product(s) at the
customer's
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shipping destination, (iv) remits full payment to the Company or
its designee, and (v) does not return the product(s) within a
commercially reasonable time.
(d) Set up fee $0
(e) Monthly hosting fee $0
4.2 Pricing. XxxXxxx.xxx may set prices for all products offered on the
XxxXxxx.xxx Mall, pricing to include costs as defined in section
4.1(a). Subject to the Company's commercially reasonable discretion,
XxxXxxx.xxx may from time to time set prices for certain special
promotional products below Cost. For any Qualifying Product Sale the
price of which product is below cost, Quepasa is responsible to pay
the Company the difference between the below cost product sale and the
product cost and all customary mall charges as defined in sec 4.1 (a)
no Net Merchandise Profit will be payable by or to either Party.
4.3 Payment; Monthly Commissions. Within 30 days following the end of each
month during the Term, the Company will transmit to XxxXxxx.xxx all
Net Merchandise Profit on Qualifying Product Sales for such Month
("Monthly Commissions"). The Company will, at XxxXxxx.xxx's request,
deposit such Monthly Commissions into an account of XxxXxxx.xxx's
choice.
4.4 Audit Rights. Each party will maintain complete, clear and accurate
records of all expenses, revenues, fees, transactions and related
documentation (including agreements) in connection with the
performance of this Agreement. All such records will be maintained for
a minimum of two years following expiration or termination of this
Agreement. For the sole purposes of ensuring compliance with this
Agreement, each party will have the right, at its sole expense, to
examine (either itself or through a designated representative)
portions of the records of the other party, which are directly related
to the obligations sought to be examined. A party may conduct such
examination no more than once per quarter, and upon at least 14 days'
written notice. In the event that XxxXxxx.xxx discovers, through such
examination, an underpayment of fees for any three-month period in
excess of ten percent, then, in addition to promptly paying to
XxxXxxx.xxx the amount of such underpayment, the Company will
reimburse XxxXxxx.xxx for its reasonable costs incurred in conducting
such examination.
5. Term; Termination.
5.1 Term. The term of this Agreement (the "Initial Term") will commence on
the Effective Date and, unless earlier terminated in accordance with
this
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Section 5, will continue for a period of two (2) years after the
Effective Date. This Agreement may be renewed for successive
additional terms (each, a "Renewal Term") if the parties so agree at
least 60 days before the end of the then-current term. The Initial
Term and all Renewal Terms (if any) are collectively referred to
herein as the "Term."
5.2 Termination for Breach. Either party may terminate this agreement
immediately if the other party commits a material breach of its
obligations hereunder that is not cured within 30 days after receiving
written notice thereof. For purposes of this Section 5.2, failure by
the Company to fulfill any of the Work Phases required by this
Agreement will be deemed a material breach of its obligations
hereunder.
5.3 Termination for Convenience. XxxXxxx.xxx may terminate this Agreement
at any time during the Term for any reason (or no reason) by giving a
written notice of termination to the Company at least 30 days prior to
the effective date of such termination.
5.4 Termination Upon Bankruptcy/Insolvency. Either party (the "Terminating
Party") may terminate this Agreement immediately, and will have no
further obligation under this Agreement, if the other party (i)
becomes insolvent; (ii) makes an assignment for the benefit of
creditors; (iii) makes or sends notice of a bulk transfer; (iv) calls
a meeting of its creditors with respect to its inability to pay its
obligations owed to such creditors on customary terms; (v) defaults
under any agreement, document or instrument relating to its
indebtedness for borrowed money; (vi) ceases to do business as a going
concern; (vii) has a petition is filed by or against it under any
bankruptcy or insolvency laws; (viii) experiences a change in its
ownership, such that a competitor of the Terminating Party holds an
equity interest in it, without the Terminating Party's prior, written
consent to such ownership; or (ix) sells all or substantially all of
its assets.
5.5 Survival. Sections 3.1, 4, 5.6, 5.7, and 6 through 12, and all then-
pending payment obligations and order processing and fulfillment
obligations will survive any termination or expiration of this
Agreement.
5.6 Rights Upon Termination. Upon the expiration or termination of this
Agreement, all Confidential Information, upon the disclosing Party's
written request (i) will be returned to the disclosing Party or (ii)
the recipient will execute a written certification that all
Confidential Information has been destroyed.
6. Proprietary Rights and Sublicense.
6.1 Ownership. As between XxxXxxx.xxx and the Company, (i) the Exclusive
Technology License is and will remain the sole and exclusive property
of
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The XxxXxx.xxx, and XxxXxxx.xxx possesses no, and will not obtain by
virtue of this Agreement, right, title or interest in or to the
Technology, except as provided by the sublicense rights granted under
Section 7.2; and (ii) except for the Product Information, all aspects
and content of the XxxXxxx.xxx Service and the XxxXxxx.xxx Mall are
and will remain the sole and exclusive property of XxxXxxx.xxx, and
the Company possesses no, and will not obtain by virtue of this
Agreement, right, title or interest therein or thereto. Neither party
will use, publish or publicly display the trademarks, trade names,
service marks and logos of the other party without the prior consent
of the other party.
6.2 Sublicense. Subject to the terms and conditions of this Agreement, the
Company hereby grants to XxxXxxx.xxx a perpetual, nonexclusive,
worldwide right and sublicense to [use and operate] the Exclusive
Technology in connection with the XxxXxxx.xxx Mall. This license
includes all elements of the Exclusive Technology necessary to
install, implement and maintain all aspects of the Company Services
throughout the Term.
6.3 XxxXxxx.xxx Marks. XxxXxxx.xxx hereby grants to the Company a
nonexclusive, restricted, worldwide license, effective throughout the
Term, to use, display, distribute, perform and publish XxxXxxx.xxx's
trademarks, service marks and logos (collectively, the "XxxXxxx.xxx
Marks") on the XxxXxxx.xxx Mall.
7. Warranties and Representations.
7.1 Warranties and Representations of Company. The Company represents and
warrants that:
a. neither the Technology, nor any of the Company's activities or
Services performed hereunder, infringes on any patent, copyright,
trademark, trade secret or other intellectual property rights or
similar rights of any third party;
b. it has all necessary right, power and authority to perform all
acts required under this Agreement, including the right, power
and authority to (i) sublicense the Technology and (ii) offer and
sell each product offered through the Company Services (including
all necessary licenses from all necessary jurisdictions to engage
in the advertising and sale of the goods offered within the
Company Services);
c. its entry into this Agreement and the performance of its
obligations and duties hereunder does not and will not violate
any agreement to which it is a party or by which it otherwise is
bound;
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d. all Product Information is and will be accurate and complete in
all respects to the Company's best knowledge; and
e. the Company has the necessary knowledge and skills to
successfully operate and conduct the Company Services as required
by this Agreement.
7.2 Warranties and Representations of XxxXxxx.xxx. XxxXxxx.xxx represents
and warrants that:
a. it has all necessary right, power and authority to perform all
acts required under this Agreement; and
b. its entry into this Agreement and the performance of its
obligations and duties hereunder does not and will not violate
any agreement to which it is a party or by which it otherwise is
bound.
7.3 Disclaimer. EACH PARTY ACKNOWLEDGES AND AGREES THAT THE OTHER HAS NOT
MADE ANY REPRESENTATIONS, WARRANTIES OR AGREEMENTS OF ANY KIND,
EXPRESS OR IMPLIED, INLCUDING BUT NOT LIMITED TO WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING
THE FOREGOING, THE COMPANY SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY
OR REPRESENTATION THAT THE USE OF THE TECHNOLOGY WILL PROVIDE
XXXXXXX.XXX ANY PARTICULAR RESULT OR WILL BE SUITABLE FOR
XXXXXXX.XXX'S PURPOSES.
8. Privacy and Security.
8.1 The Company Services will include Secure Socket Layer Software or
similar commercially accepted security technology to protect the data
and secure the transactions entered through the Company Services. Such
software will encrypt all personal information provided by Users,
including credit card number, name and address as it is transmitted
over the Internet.
8.2 All information pertaining to Users, including personal identification
information and product purchase information (collectively, "User
Data"), is and will remain the sole property of XxxXxxx.xxx. The
Company will not, during the Term or thereafter, send Users bulk e-
mail communications, except where the User has purchased products from
the Company through means other than the XxxXxxx.xxx Service. In no
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event will the Company (i) provide User Data to any third party, or
(ii) rent, sell or barter User Data.
9. Confidentiality. In connection with the activities contemplated by this
Agreement, each party may have access to confidential or proprietary
technical or business information of the other party, including without
limitation (i) business plans, proposals, ideas or research related to
possible new products or services; (ii) financial results, statements and
other financial information; (iii) User Data; (iv) requirements and
sources, contracts, and means, methods and processes of providing services;
(v) copyrights, patents, trademarks, and trade secrets; (vi) any reporting
information herein; and (vii) the material terms of the relationship
between the parties; provided, however, that such information will be
considered confidential only if it is conspicuously designated as
"Confidential," or if provided orally, identified at the time of disclosure
(collectively, "Confidential Information"). Each party will take reasonable
precautions to protect the confidentiality of the other party's
Confidential Information, which precautions will be at least equivalent to
those taken by such party to protect its own Confidential Information.
Except as required by law or as necessary to perform under this Agreement,
neither party will knowingly disclose the Confidential Information of the
other party or use such Confidential Information for the benefit of any
third party. Each party's obligations in this Section with respect to any
portion of the other party's disclosed Confidential Information will
terminate when the party seeking to avoid its obligation under such
Paragraph can document that such disclosed Confidential Information: (i)
was in the public domain at or subsequent to the time it was communicated
to the receiving party ("Recipient") by the disclosing party ("Discloser")
through no fault of Recipient; (ii) was rightfully in Recipient's
possession free of any obligation of confidence at or subsequent to the
time it was communicated to Recipient by Discloser; (iii) was developed by
employees or agents of Recipient independently of and without reference to
any information communicated to Recipient by Discloser; (iv) was
communicated by the Discloser to an unaffiliated third party free of any
obligation of confidence; or (v) was in response to a valid order by a
court or other governmental body, was otherwise required by law or was
necessary to establish the rights of either party under this Agreement;
provided, however, that both parties will stipulate to any orders necessary
to protect said information from public disclosure.
10. Limitations of Liability. EXCEPT FOR CLAIMS ARISING UNDER SECTIONS 9 OR 11,
IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY PUNITIVE, INCIDENTAL OR
CONSEQUENTIAL DAMAGES IN ANY ACTION ARISING FROM OR RELATED TO THIS
AGREEMENT, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), INTENDED
CONDUCT OR OTHERWISE, INCLUDING WITHOUT LIMITATION, DAMAGES RELATING TO THE
LOSS OF PROFITS, INCOME OR GOODWILL, REGARDLESS OF WHETHER SUCH PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
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11. Indemnification.
11.1 Each party (the "Indemnifying Party") will indemnify the other party
(the "Indemnified Party") against any and all claims, losses, costs
and expenses, including court costs, reasonable expenses and
reasonable attorneys' fees (collectively, "Losses"), which the
Indemnified Party may incur as a result of claims in any form by third
parties arising from the Indemnifying Party's breach of any
warranties, representations or covenants contained in this Agreement.
Further, the Company will indemnify XxxXxxx.xxx against any and all
Losses XxxXxxx.xxx may incur as a result of claims by a third party
that the Technology or the Company Service or any aspect thereof
infringes upon patent, trademark copyright, trade secret or other
intellectual property rights.
11.2 If an Indemnified Party makes an indemnification request to the
Indemnifying Party to control the defense, disposition or settlement
of the matter at its own expense; provided that the Indemnifying Party
will not, without the consent of the Indemnified Party enter into any
settlement or agree to any disposition that imposes an obligation on
the Indemnified Party that is not wholly discharged or dischargeable
by the Indemnifying Party, or imposes any conditions or obligations on
the Indemnified Party other than the payment of monies that are
readily measurable for purposes of determining the monetary
indemnification or reimbursement obligations of Indemnifying Party.
The Indemnified Party will notify the Indemnifying Party promptly of
any claim for which Indemnifying Party is responsible and will
cooperate with the Indemnifying Party in every commercially reasonable
way to facilitate defense of any such claim; provided that the
Indemnified Party's failure to notify Indemnifying Party will not
diminish Indemnifying Party's obligations under this Section except to
the extent that Indemnifying Party is materially prejudiced as a
result of such failure. An Indemnified Party will at all times have
the option to participate in any matter or litigation through counsel
of its own selection and at its own expense.
12. Miscellaneous.
12.1 Taxes. As between XxxXxxx.xxx and the Company, the Company will be
solely responsible for all sales taxes that may be imposed upon sales
of products through the Company Service, now or in the future.
Notwithstanding the foregoing, each party will be solely responsible
for all taxes based upon its own net income.
12.2 Publicity. Neither party will make any public statement or other
announcement (including, without limitation, issuing a press release
or pre-briefing any member of the press or other third party) relating
to the
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terms or existence of this Agreement without the prior written
approval of the other party.
12.3 Assignment. Neither party may, without the prior written consent of
the other, assign any of its rights or delegate any of its obligations
under this Agreement; provided, however, that a party shall have the
right to assign this Agreement without the prior consent of the other
party in the case of a merger or a sale of all or substantially all of
the party's assets to a party that is not a competitor of the other
party. Subject to the foregoing, this Agreement will be fully binding
upon, inure to the benefit of, and be enforceable by the parties
hereto and their respective successors and assigns.
12.4 Notices. Any notice or other communication under this Agreement will
be sufficiently given if given in writing and delivered by hand
delivery, or in lieu of such personal service, 24 hours after delivery
to a national, overnight courier service, to the addresses listed
below. Either party may designate a different address by giving a
notice of change of address in the manner provided above.
TheBigHub, Inc. XxxXxxx.xxx, Inc.
2939 Mossrock 000 X. Xxx Xxxxx, 0/xx/ Xxxxx
Xxx Xxxxxxx, Xxxxx 00000 Xxxxxxx, XX 00000
Facsimile: 210.979.6336 Facsimile: 602.716.0200
Attn: Xxxxx X. Xxxxx Attn: Xxxxxx X. Xxxxxxxxx
12.5 Governing Law. This Agreement will be construed in accordance with,
and governed by, the laws of the State of California, jurisdicted of
Orange County, without regard to the principles of conflicts of law
thereof. The parties mutually consent and submit to the jurisdiction
of the federal and state courts in and for Orange County, California.
12.6 Force Majeure. Subject to the limitations of this Agreement and except
as specifically provided in this Agreement to the contrary, neither
party will be liable for defaults, delays or non-performance of any
covenant, agreement, work, service, or other act required under this
Agreement to be performed by such party, or for any damages,
including, without limitation, any incidental or consequential
damages, arising out of the failure to perform any of its obligations,
by reason of any circumstance or condition beyond its reasonable
control, including, without limitation, failure of power or other
utilities, strikes, lockouts and other labor disputes or other
industrial disturbances, unavoidable accidents, acts of terrorism,
sabotage, embargoes, blockades, injunction or other administrative
order, governmental law or regulations (including changes in United
States foreign policy) which prevent or substantially interfere with
the required performance, condemnations, riots, insurrections, martial
law, conflicts
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(declared or undeclared), civil commotion or disorders and any
adverse change in political, economic or social conditions, fire,
explosion, flood, earthquakes and other casualty, acts of God, or any
other cause beyond the control of such party (each, a "Force Majeure
Event"). In the event of any such Force Majeure Event, the
performance of any covenant, agreement, obligation, work or service,
or other act of the party affected by such Force Majeure Event under
this Agreement shall be excused for the period of delay and the
period for the performance of the same shall be extended by such
period. Each of the parties hereto shall take all reasonable steps to
resume performance hereunder with the least possible delay.
12.7 Relationship of the Parties. Nothing in this Agreement will be
construed to constitute either party as a partner, joint venturer,
agent or employee of the other party, and neither party will act or
attempt to act or represent itself, directly or by implication, as a
partner, joint venturer, agent or employee of the other party.
Neither party nor any of its representatives will have any authority
to enter into any contract, make any commitment or otherwise bind the
other party to any obligations without the other party's prior
written consent.
12.8 Severability. If any provision of this Agreement conflicts with the
law under which this Agreement is to be construed or if any such
provision is held invalid, illegal or unenforceable, (i) such
provision will be deemed to be restated to reflect as nearly as
possible the original intentions of the parties in accordance with
applicable law, and (ii) the remaining terms, provisions, covenants
and restrictions of this Agreement will remain in full force and
effect.
12.9 Section Headings. The various section headings are inserted for
purposes of convenience only and shall not affect the meaning or
interpretation of this Agreement or any section hereof.
12.10 No Waiver. The failure of either party to insist upon or enforce
strict performance by the other party of any provision of this
Agreement or to exercise any right under this Agreement will not be
construed as a waiver or relinquishment to any extent of such party's
right to assert or rely upon any such provision or right in that or
any other instance; rather, the same will be and remain in full force
and effect. All waivers must be in writing to be enforceable.
12.11 Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed a duplicate original and
all of which, when taken together, will constitute one Agreement.
12.12 Entire Agreement. This Agreement constitutes and contains the entire
agreement between the parties with respect to the subject matter
hereof
13
and supersedes any prior oral or written agreements. This Agreement
may not be amended except in writing signed by both parties.
IN WITNESS WHEREOF, the parties have executed this Agreement to be
effective as of the Effective Date.
The XxxXxx.xxx, Inc. XxxXxxx.xxx, Inc.
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxx X. Xxxxxxxx
------------------------ ---------------------------------
Name: Xxxxx X. Xxxxx Name: Xxxx X. Xxxxxxxx
----------------------- ------------------------------
Title: President / CEO Title: President / CEO / Chairman
----------------------- -----------------------------
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Exhibit A
Product Category Commissions
The Net Merchandise profits (defined supra):
Current Power Stores:
Audio Books: 3%
Books: 5-8%
Cameras: 3%
Computer Hardware: 3%
Computer Software: 2%
Consumer Electronics: 3-6%
Drug Store: 5%
Home Improvement: 7%
Housewares: 7%
Janitorial Supplies: 5-10%
Lawn & Garden: 6-8%
Magazines: 3-5%
Movies: 3%
Music: 3%
Office Furniture: 6-8%
Office Supplies: 6-10%
Pet & Farm: 6-10%
Video Games: 3%
Apparel: 6-10%
Automotive: 10%
Baby/Nursery: 6-10%
Cosmetics/Fragrance: 4-6%
Fitness: 6-10%
Gift: 10-12%
Gourmet Foods: 10-12%
Jewelry: 15%
Marine Supplies: 10%
Sporting Goods: 6-10%
Toys: 6-10%
Travel: 3%
Watches: 10%
Wines: 4%
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