StoreRunner
A CBS Alliance
xxx.xxxxxxxxxxx.xxx
WEBMALL(TM) CO-BRANDED WEB PAGE AGREEMENT
COVER PAGE
THIS AGREEMENT, CONSISTING OF THIS COVER PAGE AND THE TERMS AND CONDITIONS
ATTACHED HERETO AS EXHIBIT "A" is entered into by and between the Client
identified below and StoreRunner Network, Inc., 0000 Xxxxxxxxx Xx. Xxxxx 000,
Xxx Xxxxx, XX 00000 ("StoreRunner").
Effective Date: 9/7/00
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Set up Fees: $50,000
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StoreRunner Advertising Percentage: 33%
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Schedule for Client Revenue Share:
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Number of Monthly Visitors to Co-Branded Client Percent Share of Net Revenue
Web Pages
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Less than 100,000 33%
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100,000-500,000 40%
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500,000-1,000,000 45%
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More than 1,00,000 50%
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Client Site Address: URL: xxx.xxxxxxx.xxx
The signatures below constitute acceptance of this Agreement.
CLIENT NAME: Xxxxxxx.xxx, Inc. STORERUNNER, INC.
Signature: /s/Xxxxxx Xxxxxxxx Signature: /s/Xxxxx Xxxx
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Print Name: Xxxxxx Xxxxxxxx Print Name: Xxxxx Xxxx
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Title: Executive Vice President Title: Chief Operating Officer
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Date: September 1, 2000 Date: 9/7/00
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Fax: 000-000-0000 Fax: 000-000-0000
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Telephone: 000-000-0000 Telephone: 000-000-0000
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Street Address: 0000 Xxxx Xxx. E-Mail Address: XXXXX@Xxxxxxxxxxx.xxx
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City, State, Zip: Xxxxxxxx, XX 00000
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E-Mail Address: xxxxxxxx@Xxxxxxx.xxx
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EXHIBIT A
TERMS AND CONDITIONS
A. StoreRunner hosts and maintains an Internet shopping web site at
xxx.xxxxxxxxxxx.xxx (the "STORERUNNER SITE") comprised of web pages maintained
and operated by StoreRunner or its merchant partners which contain references
and hyperlinks to and from the web sites of various StoreRunner partners (the
"StoreRunner Network").
B. Client maintains a web site with the homepage URL specified on the Cover
Page (the "CLIENT SITE").
C. Client desires that StoreRunner create, host and maintain web pages
linked to the Client Site that include certain Internet shopping functionality
of the StoreRunner Site customized to display the Client's name and/or
trademarks ("CO-BRANDED WEB PAGES"), and StoreRunner is willing to do so in
accordance with the terms of this Agreement.
1. CO-BRANDED WEB PAGES. The Co-Branded Web Pages shall be in the form of
one of StoreRunner's templates modified solely to display in the upper left hand
corner of each Co-Branded Web Page Client's trade name and/or trademark ("CLIENT
MARKS") to a maximum of 192X67 pixels of space. Client shall provide
StoreRunner, in acceptable electronic form, the Client Marks within 5 days after
the Effective Date. Client hereby grants StoreRunner a non-exclusive,
worldwide, royalty-free license to use and display the client Marks on the
Co-Branded Web Pages. Client represents and warrants to StoreRunner that it is
the owner or licensor of the Client Marks and has the right to grant the
foregoing license. StoreRunner agrees, at its cost and expense, to host,
maintain and serve the Co-Branded Web Pages beginning ten (10) business days
after receipt of the Client Marks.
2. SHOPPING LINK ON CLIENT'S SITE. At all times during the term of this
Agreement that the Co-Branded Web Pages are operational, Client shall add and
maintain an operational hyperlink from Client's Site to the Co-Branded Web Pages
in the form of a "Shopping Button," the location, prominence and content of
which shall be as mutually agreed upon by the parties. StoreRunner agrees to
provide Client certain html code ("CODE") for the hyperlink to the Co-Branded
Web Pages. Client agrees not to modify, reproduce or redistribute the Code and
or the copyright and/or other proprietary notices contained in the Code, if any.
Client may not frame or mirror any web page of the Co-Branded Web Pages or the
StoreRunner Site, including without limitation the pages that appear in response
to a hyperlink initiated from the Client Site.
3. SET UP FEES. This Agreement shall be effective only after receipt by
StoreRunner of the Set up Fees specified on the Cover Page, which Client agrees
to pay to StoreRunner on or before the Effective Date.
4. PAYMENT OF REVENUE SHARE TO CLIENT. StoreRunner will pay to Client an
amount equal to the Client Percentage identified on the Cover Page multiplied by
its Net Revenue From The Co-Branded Web Pages (as defined below), as follows:
4.1 When the total amount owed to Client reaches One Hundred Dollars
($100), then at the end of the calendar quarter in which Client reached the $100
minimum amount, StoreRunner will send Client a check for the amount owed within
thirty (30) days after the end of such quarter, along with a report summarizing
the calculations of such amount.
4.2 THEREAFTER, StoreRunner will send Client a quarterly check for
every subsequent calendar quarter within thirty (30) days after the end of such
quarter, regardless of whether the amount owed Client is in excess of $100,
along with a report summarizing the calculation of such amount.
"NET REVENUE FROM THE CO-BRANDED WEB PAGES" means the gross revenue actually
received by StoreRunner derived from click-through fees and advertising fees
charged by StoreRunner to third party merchants and advertisers, less amounts
deducted by StoreRunner for costs of ad sales and merchant credits. Client
understands that not all click-through's by visitors at the Co-Branded Web Pages
will result in or generate revenue or Net Revenue.
5. ADVERTISING. All advertising on the Co-Branded Web Pages shall be
subject to approval of StoreRunner. Unless otherwise agreed, StoreRunner will
have the exclusive right to sell all banner and other advertising on the
Co-Branded Web Pages. If StoreRunner permits Client sales of advertising,
Client agrees to pay to StoreRunner and amount equal to the gross revenue, less
costs of sales, from such advertising sales multiplied by the StoreRunner
Advertising Percentage set forth on the Cover Page.
6. ONLINE REPORTING. StoreRunner will provide Client with password
protected access to an online report of visitor click-through's and advertising
views on the Co-Branded Web Pages and estimated gross revenue generated. While
StoreRunner will attempt to keep the online reports updated periodically, the
information and data contained in the online reports are estimates and subject
to change. Client agrees to keep the password confidential.
7. THIRD PARTY INFORMATION. Client acknowledges that the third party
merchants providing goods and services directly or via links, on the StoreRunner
Site and the Co-Branded Web Pages are not under the control StoreRunner, and
that StoreRunner is not responsible for the actions of the third party merchants
or the contents of any
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third party merchant web sites. Client acknowledges such third party merchants
are responsible forth sale of their products to visitors, including without
limitation all order fulfillment, shipping and warranties for products and
services ordered.
8. USE LIMITATION. Use of the co-Branded Web Pages is subject to the
approval of StoreRunner. Client may not sell, resell, rent or lease the
Co-Branded Web Pages. Client may not modify, copy, distribute, transmit,
display, perform, reproduce, publish, license, create derivative works from,
transfer, or sell any information, software, products, services or benefits
obtained from the StoreRunner Network or the Co-Branded Web Pages without the
prior written consent of StoreRunner. Client understands and agrees that the
Co-Branded Web Pages will be part of the StoreRunner Network for traffic
reporting purposes. Client agrees that it will not intentionally take any
action which will prevent visitors to the Co-Branded Web Pages from being
reported as part of the traffic count of the StoreRunner Network, including but
not limited to masking, redirecting, or assigning a hypertext link to a
different domain name not assigned for the purpose of delivering users to the
Co-Branded Web Pages.
9. NO UNLAWFUL OR PROHIBITED USE. Client shall not use the Client Site
and/or Co-Branded Web Pages for any purpose that is unlawful or prohibited by
this Agreement. In addition, Client may not link to the StoreRunner Network or
co-Branded Web Pages any Web site (including without limitation the Client Site)
containing or relating to any of the following: sexual content or adult-rated
material, pornography or obscenity, profanity, hate speech, defamatory, libelous
or threatening language, software piracy or which otherwise violate or infringe
a third party's intellectual property, proprietary, privacy or publicity rights,
illegal activity or activities which violate any foreign, international,
federal, state or local law or regulation, cigarettes, hard liquor, massage
parlors, abortion clinics, firearms, ammunition or explosives, head shops,
lotteries, gambling, content that denigrates a particular group based on gender,
race, creed, religion, nationality, sexual preference or handicap. Client
represents and warrants during the term of this Agreement that the Client Site
does not contain or relate to any of the foregoing. Client further agrees not
to link the Co-Branded Web Pages to any unsolicited communication sent to any
third party, or otherwise use or mention the Co-Branded Web Pages in connection
with any such unsolicited communication. Additionally, Client agrees that
during the term of this Agreement, neither client nor any of its affiliates,
will in any manner whatsoever, encourage, promote or provide an incentive to any
visitor to visit the Co-Branded Web Pages by rewarding such visitor based on the
number of click-through's such visitor makes on merchant product offerings. Any
breach of this Section shall be a material breach of this Agreement and
StoreRunner may, without prior notice to Client, cease serving the Co-Branded
Web Pages.
10. PUBLICITY. Neither party shall issue or distribute any press release or
other discretionary public announcement concerning the relationship created by
this Agreement without the prior written consent of the other, provided however,
Client may inform visitors to the Client Site that it has entered into this
Agreement to offer such visitors the right to access the Co-Branded Web Pages,
and StoreRunner may publicly identify Client as an StoreRunner client in any
promotional materials StoreRunner generates and may include a hypertext link to
the Client Site on the StoreRunner Network.
11. USER INFORMATION. StoreRunner is the sole and exclusive owner of the
personal and demographic information that it acquires from visitors in the
course of administrating the Co-Branded Web Pages, and will use such visitor
information in accordance with the Privacy Policy Statement set forth in the
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StoreRunner Site. Neither party will, by act or omission, violate or encourage
a third party to violate any applicable law in relation to the collection, use
or re-use of the visitor information.
12. LICENSE TO CLIENT. Client acknowledges that the hyperlink or Shopping
Button to the Co-Branded Web Pages on the Client Site may include a trademark,
service xxxx or logo owned by or licensed to StoreRunner (a "STORERUNNER
TRADEMARK"). In such event, StoreRunner hereby grants to Client, during the
term of this Agreement, a non-assignable, non-transferable, royalty-free,
non-exclusive, worldwide, limited license to display such StoreRunner Trademark
solely in connection with Client's display of the hyperlink or Shopping Button
on the Client Site as provided in this Agreement. Client may not change the
proportion, color, or font of the hyperlink or Shopping Button without the
approval of StoreRunner. If the Shopping Button includes a StoreRunner
Trademark, then each use of the Shopping Button on the Client Site will identify
StoreRunner or its licensors as the owner of the StoreRunner Trademark,
including the (R) (R inside the circle) and "TM", as applicable as designated by
StoreRunner from time to time. Client agrees not to register any StoreRunner
Trademark in any jurisdiction.
13. WARRANTIES.
13.1 MUTUAL WARRANTIES. Each party represents and warrants to the
other party that, during the term of this Agreement: (i) it is authorized,
empowered, and able to enter into and fully perform its obligations under this
state, local and foreign laws and regulations in performing its obligations and
exercising its rights under this agreement.
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13.2 NO OTHER WARRANTIES, EXCEPT AS OTHERWISE PROVIDED IN THIS
AGREEMENT. NEITHER PARTY MAKES ANY OTHER WARRANTY IN CONNECTION WITH THE
SUBJECT MATTER OF THIS AGREEMENT AND EACH PARTY HEREBY DISCLAIMS THE IMPLIED
WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE, IN PARTICULAR, AND NOT BY WAY OF LIMITATION,
STORERUNNER DOES NOT WARRANT THAT THE STORERUNNER NETWORK, THE CO-BRANDED WEB
PAGES OR THE STORERUNNER SITE WILL OPERATE ERROR-FREE OR WITHOUT INTERRUPTION.
14. INDEMNITY.
14.1 BY CLIENT. Subject to the provisions of this Section, Client
agrees to indemnify, defend and hold harmless StoreRunner and its officers,
directors and employees from and against any and all losses, liabilities,
damages, settlement amounts, claims, obligations, costs, expenses (including
without limitation reasonable attorneys' fees) which result from , arise in
connection with or are related in any way to claims by third parties arising out
of, relating to or alleging (i) breach of a representation or warranty of Client
in the Agreement and (ii) any copyright, trademark or other intellectual
property provided by Client to StoreRunner in performance of its obligations
infringes the copyrights or trademarks of any third party. The obligations of
this Section are contingent on StoreRunner (a) giving Client prompt written
notice of any such claim; and (b) providing reasonable cooperation in the
defense and all related settlement negotiations.
14.2 BY STORERUNNER. Subject to the provisions of this Sections,
StoreRunner agrees to indemnify, defend and hold harmless Client and its
officers, directors and employees from and against any and all losses,
liabilities, damages, settlement amounts, claims, obligations, costs, expenses
(including, without limitation, reasonable attorneys' fees) which result from,
arise in connection with or are related in any way to claims by third parties
arising from or related to an allegation that any trademark or copyrighted works
provided to StoreRunner to Client or used by StoreRunner on the Co-Branded Web
Pages infringe the copyrights or trademarks of any third party. The obligations
of this Section are contingent on Client (a) giving StoreRunner prompt written
notice of any such claim; and (b) providing reasonable cooperation in the
defense and all related settlement negotiations.
15. DAMAGES. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER, OR ANY
PARTY CLAIMING THROUGH THEM, FOR LOST PROFITS, DATA OR BUSINESS OPPORTUNITIES,
OR FOR ANY INTERRUPTION OF SERVICE OF THE STORERUNNER NETWORK, CO-BRANDED WEB
PAGES, CLIENT SITE, STORERUNNER SITE OR OTHER SITE OUTAGE, OR FOR ANY OTHER
SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF
THIS AGREEMENT OR ITS TERMINATION, WHETHER LIABILITY IS ASSERTED IN CONTRACT,
TORT (INCLUDING NEGLIGENCE) OR OTHER-WISE AND IRRESPECTIVE OF WHETHER
STORERUNNER OR CLIENT HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR
DAMAGE. IN THE EVENT THAT THIS LIMITATION OF LIABILITY FAILS FOR WHATEVER
REASON, THE PARTIES AGREE THAT THE MAXIMUM LIABILITY OF EITHER PARTY HERETO
SHALL NOT EXCEED THE AMOUNT PAID TO THE OTHER UNDER THIS AGREEMENT DURING THE
TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT WHICH GAVE RISE TO THTE
CLAIM FOR DAMAGES.
16. TERM AND TERMINATION.
16.1 TERM. The term of this Agreement shall commence on the Effective
Date and will, unless earlier terminated as provided herein, continue for a
period of one (1) year (the "INITIAL TERM"). Unless otherwise terminated as
provided herein, this Agreement shall thereafter automatically renew for
additional one (1) year terms. Either party may terminate this Agreement as of
the end of the Initial Term or any renewal term upon not less than three (3)
months prior written notice to StoreRunner. Either party may terminate this
Agreement at the end of the first ninety (90) days of the Initial Term upon not
less than thirty (30) days prior written notice.
16.2 TERMINATION FOR CAUSE. If either party is in material breach of
the terms of this Agreement, the non-breaching party may give written notice of
such breach to the breaching party and an opportunity to cure the breach within
fifteen (15) business days. If such breach is not cured within such fifteen
(15) day period, the non-breaching party may immediately terminate this
Agreement by subsequent written notice to the party in breach.
16.3 EFFECT OF TERMINATION. As soon as commercially reasonable after
the effective date of any termination of this Agreement, StoreRunner will cease
hosting the Co-Branded Web Pages and Client will remove all hyperlinks and/or
shopping buttons from the Client Site. Upon any termination of this Agreement
all licenses granted in this Agreement will terminate. Within the thirty (30)
day period following the termination of this Agreement, StoreRunner will pay
Client all amounts due under this Agreement which have accrued prior to the date
of termination.
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16.4 SURVIVAL. The following Sections shall survive the termination of
this Agreement, Sections 10 ("Publicity"), 11 ("User Information"), 13.2 ("No
Other Warranties"), 14 ("Indemnity"), 15 ("Damages"), 16 ("Term and
Termination"), and 17 ("General").
17. GENERAL. This Agreement is governed by the laws of the State of
California, U.S.A., without regard to its conflicts or choice of laws
provisions. Client hereby consents to the jurisdiction of and venue in courts
located in San Diego County, California, U.S.A. in all disputes arising out of
or relating to this Agreement. Client agrees that no joint venture,
partnership, employment, or agency relationship exists between Client and
StoreRunner as a result of this Agreement. If any part of this Agreement is
determined to be invalid or unenforceable pursuant to applicable law including,
but not limited to, the warranty disclaimers and liability limitations set forth
above, then the invalid or unenforceable provision will be deemed superseded by
a valid, enforceable provision that most closely matches the intent of the
original provision and the remainder of the Agreement shall continue in effect.
Unless otherwise specified herein, this Agreement constitutes the entire
agreement between Client and StoreRunner with respect to the subject matter of
this Agreement and it supersedes all prior or contemporaneous communications and
proposals, whether electronic, oral or written, between Client and StoreRunner
with respect to that subject matter. Client may not assign this Agreement
without the written consent of StoreRunner. StoreRunner shall have the right to
assign this Agreement. Any notice given in electronic form shall be admissible
in judicial or administrative proceedings based upon or relating to this
Agreement to the same extent and subject to the same conditions as other
business documents and records originally generated and maintained in printed
form.
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ADDENDUM TO WEBMALL(TM) CO-BRANDED WEB PAGE AGREEMENT
BETWEEN XXXXXXX.XXX, INC. AND STORERUNNER NETWORK, INC.
The following terms are added to the agreement.
1. Upon receipt of Set Up Fee as described in Section 3 and the Cover Page of
this Agreement, StoreRunner shall immediately purchase run of site
advertising from Xxxxxxx.xxx of the same amount as the Set Up Fee received.
Such advertising shall promote and link to the Co-Branded Web Pages.
2. Upon reaching at least 1,000,000 Visitors to the Co-Branded Web Pages per
month and upon the request of Xxxxxxx.xxx, StoreRunner shall extend the
present Agreement to include the development of a Shopping by StoreRunner
Web Site which (i) includes certain features and functions of the
StoreRunner web site, (ii) has the branding and look and feel of Customer's
web site, and (iii) includes certain StoreRunner branding; all in
accordance with the terms of an extended agreement to be negotiated at the
time of the extension. StoreRunner will waive its usual and customary fees
for the development of the custom Shopping by StoreRunner Web Site and
Xxxxxxx.xxx will not be obligated to pay any fees beyond the Set Up Fee as
per Section 3 of this Agreement.
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