EXHIBIT 10.30
Confidential Treatment has been requested with respect to portions of the
agreement indicated with an asterisk [*]. A complete copy of this agreement,
including the redacted terms, has been separately filed with the Securities and
Exchange Commission.
E-COMMERCE AGREEMENT
THIS E-Commerce Agreement dated the 14th day of May, 1999 (the
"Effective Date") is by and between XXXXXXXXXXXXXXXXXX.XXX, INC., a Delaware
corporation ("XXX.xxx"), and THE SPORTS AUTHORITY, INC., a Delaware corporation
("Retailer").
WHEREAS, Retailer is a full line sporting goods retailer and operates
TSA Stores (as defined below) in the U.S. and Canada under the trade name,
trademark and service xxxx THE SPORTS AUTHORITY;
WHEREAS, Retailer has entered into a certain E-COMMERCE VENTURE
AGREEMENT with Global Sports Interactive, Inc. for the purpose of cooperatively
forming and operating the company which is XXX.xxx;
WHEREAS, XXX.xxx is in the business of creating, developing, operating,
maintaining, advertising and promoting all aspects of the E-Commerce Business;
and
WHEREAS, Retailer desires to enter into an agreement with XXX.xxx
pursuant to which XXX.xxx shall provide certain services to Retailer, all upon
the terms and conditions hereinafter set forth;
WHEREAS, Retailer and its subsidiary THE SPORTS AUTHORITY MICHIGAN,
INC. (as "Licensor") have entered into a certain LICENSE AGREEMENT with XXX.xxx
under which XXX.xxx as Licensee has been granted certain rights to use the
Marks, Names, TSA Buying Power and TSA Content (all as defined in the License
Agreement) in connection with creating, developing, operating, maintaining,
advertising and promoting the TSA Site; and
NOW, THEREFORE, the parties hereto, intending to be legally bound
hereby, agree as follows:
ARTICLE I
DEFINITIONS
As used herein, the following terms shall have the following meaning:
1.1 "Advertising Co-op and Discretionary Funds" shall mean amounts earned
by or allocated to Retailer by its vendors, the purpose of which is to
advertise or market a given vendor's brand or goods, or for
advertising, marketing, promotional or other use at Retailer's
discretion.
1.2 "Advertising and Marketing Partners of XXX.xxx" shall mean operators or
proprietors of search engines, portals, community sites, content sites,
on-line retailers, shopping, regional and industry directories, push
sites, and other Internet sites capable of attracting Customers for the
TSA Site, or desirous of attracting Customers from the TSA Site to
their sites, with whom XXX.xxx contracts for exchanges of advertising
and promotional services and any form of compensation. For purposes of
this Agreement, XXX.xxx shall not contract with TSA Competitors and the
same shall be excluded from the definition of Advertising and Marketing
Partners of XXX.xxx.
1.3 "Business Day(s)" shall mean any day which is not a Saturday, Sunday or
official federal holiday in the U.S.
1.4 "Closeout Merchandise" shall mean end of season, out of style, broken
stock or excess merchandise that is currently carried by Retailer in a
substantial number of its TSA Stores, or merchandise which is available
for purchase from a given vendor on a closeout basis for sale in a
substantial number of Retailer's TSA Stores, and priced by Retailer at
a greater than normal discount for the purpose of reducing inventory or
turning inventory quickly, without replenishment.
1.5 "Confidential Information" shall mean as that term is defined in
Article XI of this Agreement.
1.6 "Cross Promotion" shall mean the use by Advertising and Marketing
Partners of XXX.xxx of certain of Retailer's Names and Marks (as
defined in and subject to the License Agreement) on other than the TSA
Site for the purpose of promoting the TSA Site and the goods and
services offered on the TSA Site.
1.7 "Customer" shall mean a consumer who purchases or otherwise receives
any merchandise or services furnished by XXX.xxx from the TSA Site as
permitted hereunder.
1.8 "Customer Data" shall mean any and all data relating to Customers or
potential Customers of the TSA Site, including without limitation, data
relating to persons referred by or through the Advertising and
Marketing Partners of XXX.xxx to the TSA Site. Such data may include,
without limitation, names and other identifying information such as
addresses, phone numbers and e-mail addresses, credit card numbers and
related data, preferences, gift and shipping information, purchase,
payment and connection histories, correspondence, inquiries, and
descriptions of the items and quantities of items purchased by any such
persons.
1.9 "Databases" shall mean all data structures, data schema, database
dictionaries, attributes, validation tests for each element, table
sizes and formats, access requirements, data dependencies and other
elements involving the management or storage of data on the TSA Site,
and all refinements, updates, releases, improvements and enhancements
thereto, all Intellectual Property Rights embedded therein (except
those belonging to Retailer or XXX.xxx) and all applications created
specifically for management and use of
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the Customer Data, Financial Data and TSA Content, but excluding the
Customer Data, Financial Data and TSA Content PER SE. GSI shall own all
right, title and interest in and to the Databases, while Retailer and
XXX.xxx may use the Databases subject to other restrictions set forth
herein.
1.10 "Defective Allowance" shall mean a discount or rebate granted by a
vendor to a retailer as a result of defective merchandise received by
the retailer and pursuant to which, the retailer also retains or
destroys the merchandise.
1.11 "Disclosing Party" shall mean the party disclosing Confidential
Information as permitted under this Agreement.
1.12 "E-Commerce Business" shall mean the business of creating, developing,
operating, advertising and promoting the TSA Site as further described
herein.
1.13 "E-Commerce Orders" shall mean any orders for On-Line Merchandise or
services placed by Customers from the TSA Site.
1.14 "E-Commerce Shopping Experience" shall mean the unique and highly
interactive experience of shopping for and purchasing merchandise from
the TSA Site, including, without limitation, the experience of a
functional (little or no fluff), streamlined, easy to navigate, on-line
sporting goods store with the Features Set described herein and in
ATTACHMENT A. As much as practicable, the TSA Site shall draw from the
"look and feel" of Retailer's TSA Stores and reinforce Retailer's
mission of offering high quality, high performance, innovative
products, in fashion and on trend as to style, color, materials and
makeup, supporting beginner, intermediate and enthusiast participants
through superior value and service. The E-Commerce Shopping Experience
is intended to help make the TSA Site THE e-commerce shopping site for
sporting goods, athletic apparel and athletic footwear.
1.15 "Features Set" shall mean the features, characteristics and
requirements for the TSA Site as set forth throughout this Agreement
and in ATTACHMENT A, as the latter may be amended or supplemented in
accordance with this Agreement.
1.16 "Financial Data" shall mean all data relating to the financial
performance or operations of the TSA Site, including the financial
information generated pursuant to Article 8.1 below, and any aggregates
of data which are Customer Data, except that any names and other
information identifying Customers in any manner shall not be considered
and be excluded from Financial Data.
1.17 "Fiscal Year" shall mean XXX.xxx's fiscal year. XXX.xxx shall give at
least ninety (90) days advance notice to Retailer of any change in
designation of XXX.xxx's Fiscal Year.
1.18 "In Line Merchandise" shall mean current merchandise carried by
Retailer in a substantial number of its TSA Stores (excluding test
merchandise, Markdowns, Closeouts and Special Makeups), or merchandise
which Retailer intends in the near future to carry
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in a substantial number of its TSA Stores, or which is offered by the
same vendors and is closely related to foregoing merchandise and
available to Retailer but not currently carried in its TSA Stores.
1.19 "Intellectual Property Rights" shall mean any and all now known or
hereafter known tangible and intangible (a) rights associated with
works of authorship throughout the universe, including but not limited
to copyrights, moral rights, and mask-works, (b) trademark and trade
name rights and similar rights, (c) trade secret rights, (d) patents,
designs, algorithms and other industrial property rights, (e) all other
intellectual and industrial property rights (of every kind and nature
throughout the universe and however designated) (including logos,
"rental" rights and rights to remuneration), whether arising by
operation of law, contract, license, or otherwise, and (f) all
registrations, initial applications, renewals, extensions,
continuations, divisions or reissues hereof now or hereafter in force
(including any rights in any of the foregoing).
1.20 "Internet" shall mean a global network of interconnected computer
networks, each using the Transmission Control Protocol/Internet
Protocol and/or such other standard network interconnection protocols
as may be adopted from time to time, which is used to transmit content
that is directly or indirectly delivered to a computer or other digital
electronic device for display to an end-user, whether such content is
delivered through on-line browsers, off-line browsers, or through
"push" technology, electronic mail, broadband distribution, satellite,
wireless or other successor technologies or means. Internet shall also
mean on-line services such as AOL, CompuServe and Prodigy.
1.21 "Launch Date" shall mean the date on which XXX.xxx commences normal
operation of the TSA Site with the Core Functionality as further
described in ATTACHMENT A.
1.22 "Markdowns" shall mean merchandise currently in Retailer's inventory in
a substantial number of its TSA Stores which is systematically offered
for sale at prices less than the original retail prices at which
Retailer offered such merchandise, in response to low demand,
seasonality, obsolescence or other market conditions.
1.23 "Milestone Delivery Schedule" shall mean the major dates and
deliverables in creating, developing and launching the TSA Site, which
may be incorporated into the Production Schedule, as further described
in ATTACHMENT A.
1.24 "On Line Customer Loyalty Programs" shall mean programs established by
XXX.xxx with Retailer's prior review and approval to encourage repeat
business at the TSA Site from Customers.
1.25 "On Line Gift Certificates" shall mean gift certificates bearing the
xxxx XXXXXXXXXXXXXXXXXX.XXX, distributed electronically under the
auspices of XXX.xxx (subject to Retailer's approval and the terms of
the LICENSE AGREEMENT), offered by XXX.xxx and redeemable only through
or on the TSA Site, but not at Retailer's TSA Stores.
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1.26 "On Line Merchandise" shall mean the merchandise offered and sold by
XXX.xxx on the TSA Site as further defined in Article 4.3.
1.27 "Outsourcing Partner(s)" shall mean any person or entity which, subject
to Article 20.11 and other applicable terms of this Agreement, XXX.xxx
engages to perform any of the obligations, duties or services which
XXX.xxx has undertaken or promised to perform under this Agreement.
1.28 "Own Brand Merchandise" shall mean any and all goods bearing, or sold
under or in connection with packaging or labels bearing the xxxx THE
SPORTS AUTHORITY or the xxxx THE SPORTS AUTHORITY & Design, as either
offered and sold by Retailer in its TSA Stores, or offered and sold by
XXX.xxx from the TSA Site. All such sales by XXX.xxx are subject to the
terms of the LICENSE AGREEMENT.
1.29 "Party" shall mean Retailer or XXX.xxx; "Parties" shall mean both of
them.
1.30 "Production Schedule" shall mean the schedule to be agreed upon by the
Parties for the creation, development, and production (both before and
after the Launch Date) of the TSA Site, including the delivery of TSA
Content and XXX.xxx Products.
1.31 "Receiving Party" shall mean the party receiving Confidential
Information as permitted under this Agreement.
1.32 "Retailer's Warehouse" shall mean the place or places at which Retailer
receives bulk delivery of any merchandise from its vendors.
1.33 "Special Makeups" shall mean merchandise currently carried by Retailer
in a substantial number of its TSA Stores (excluding test merchandise,
Markdowns and In-Line Merchandise), or merchandise which Retailer plans
to carry in a substantial number of its TSA Stores, which is
manufactured and sold to Retailer on a temporarily exclusive basis, and
not otherwise available in the market or for purchase by other
retailers during the period of exclusivity.
1.34 "Term" shall mean the period commencing with the Effective Date and
continuing until this Agreement is terminated as provided in Article
XVII below.
1.35 "TSA Competitor" shall mean: (a) any person, firm or corporation or
other entity (other than TSA and its retailing subsidiaries) which
either directly or indirectly derives twenty percent (20%) or more of
its revenues from the sales or distribution of sporting goods, athletic
apparel, athletic footwear or related goods and services, whether
operating from stores located in the U.S., Canada or Japan or any other
nation in which the predominant language is English, whether by mail
order, home shopping through audio or video programming, over the
Internet or otherwise; and (b) any retailing entity which would clearly
be regarded as a competitor of TSA by the U.S. Department of Justice
under federal antitrust and competition laws and regulations.
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1.36 "XXX.xxx Products" shall mean, collectively, the XXX.xxx Tools and the
XXX.xxx Work Product.
1.37 "XXX.xxx Tools" shall mean any tools, both in object code and source
code form, which XXX.xxx has already developed or which XXX.xxx
independently develops or licenses from a third party, excluding any
tools which XXX.xxx creates pursuant to this Agreement. By way of
example, XXX.xxx Tools may include, without limitation, search engines,
Java servlets and ActiveX controls.
1.38 "XXX.xxx Work Product" shall mean all HTML files and Java files (or
derivatives of either), graphics files, animation files, data files,
technology, scripts and programs, both in object code and source code
form, all documentation and any other items used by XXX.xxx to create
the TSA Site.
1.39 "TSA Content" shall mean the following content or information, as
furnished by Retailer to XXX.xxx subject to the terms of this Agreement
and the License Agreement:
(a) text, graphics, photographs, video, audio and/or
other data or information relating to any subject
furnished by Retailer to XXX.xxx and intended solely
for use in connection with the TSA Site;
(b) Retailer selected print advertisements for the TSA
Stores or the goods and services offered by Retailer
in the TSA Stores, including run of press and insert
advertisements which appear in newspapers and
magazines, as well as printed in store signage, point
of sale and display signage and information promoting
events and the goods and services offered in the TSA
Stores; and
(c) such information concerning the goods and services
offered by Retailer in the TSA Stores in the U.S. as
Retailer possesses and has the right to transfer and
license to XXX.xxx, and which Retailer deems
necessary to successful operation of the TSA Site,
including, without limitation, information which is
related to the sourcing, manufacturing, development,
design, fabrication, construction, test procedures,
performance features, quality control standards,
merchandise specifications, reliability standards,
distribution, product costs, other costs, allowances,
rebates, sizes, colors, decoration, display, pricing,
margins, vendor economic information, and similar
information and know-how necessary to the
procurement, merchandising, inventory management and
sales of such goods and services in the TSA Stores.
1.40 "TSA Gift Certificates" shall mean gift certificates bearing the marks
THE SPORTS AUTHORITY and THE SPORTS AUTHORITY & Design, printed and
distributed under the auspices of Retailer, offered by Retailer for
redemption at its TSA Stores, or if by XXX.xxx on the TSA Site,
redeemable only at Retailer's TSA Stores.
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1.41 "TSA Site" shall mean that certain Internet site currently accessible
through the URL "xxxx://xxx.xxxxxxxxxxxxxxxxxx.xxx," and any backup or
mirror Internet site; it being understood that the TSA Site shall be
primarily targeted by XXX.xxx at Customers, and not at persons,
entities or activities otherwise described in Article 2.6 of the
LICENSE AGREEMENT. Further, the TSA Site shall not be used by XXX.xxx
to furnish, sell, advertise or promote the goods or services of any TSA
Competitor. The TSA Site shall include, without limitation, the
E-Commerce Shopping Experience, the Features Set and other aspects,
features and characteristics as set forth in this Agreement and its
Attachments.
1.42 "TSA Stores" shall mean any sporting goods retail store established
and/or operated by Retailer or Retailer's wholly-owned retailing
subsidiaries and devoted to the sale of a broad assortment of sporting
goods, athletic footwear, athletic apparel and related goods, and to
provision of related services.
1.43 "URL" shall mean the uniform resource locator of the TSA Site on the
Internet.
1.44 "URL Integration" shall mean the display of Retailer's URL in
Retailer's prepared advertising, marketing, public relations and
investor relations communications as further described in Article 7.5.
1.45 "Web" or "web" shall mean the World Wide Web, a network protocol for
accessing and viewing text, graphics, sound and other media and
engaging in e-commerce via the Internet.
ARTICLE II
DEVELOPMENT OF THE TSA SITE
2.1 SERVICES. XXX.xxx, at its own expense and at no cost to Retailer, shall
provide all creative, design, programming and other consulting services,
including all applicable XXX.xxx Products, necessary to the successful
realization of the TSA Site, including without limitation, services in the Core
Functionality as specified in ATTACHMENT A and incorporation of at least the
core aspects (as agreed by the Parties) of the Features Set, in accordance with
the Milestone Delivery Schedule and the Production Schedule, and as is necessary
in order to deliver the TSA Site in condition acceptable to Retailer on or
before the Launch Date. After initial acceptance by Retailer and full scale
launch of the TSA Site, XXX.xxx's development and maintenance services shall
continue throughout the Term of this Agreement.
2.2 TSA CONTENT. (a) INITIAL TSA CONTENT. As soon as reasonably possible after
the Effective Date, XXX.xxx and Retailer shall agree upon a Production Schedule
for the delivery by Retailer to XXX.xxx of that TSA Content which Retailer
intends for XXX.xxx to incorporate into the TSA Site. The Parties acknowledge
that Retailer shall be able to deliver certain "static" information, such as TSA
Store locations, promptly to XXX.xxx, and that other TSA Content, such as TSA
Content concerning the merchandise to be sold on the TSA Site, may be delivered
at a later date, closer to the Launch Date. TSA Content shall be in the
format(s) designated by XXX.xxx as set forth in ATTACHMENT B hereto or in such
other formats as the Parties may
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mutually agree. Upon Retailer's request, XXX.xxx shall assist Retailer in the
conversion of TSA Content into an acceptable form for use by XXX.xxx for the TSA
Site.
(b) SUBSEQUENT TSA CONTENT. Retailer shall supply XXX.xxx with updated
TSA Content as it becomes available to Retailer and necessary to updating the
TSA Site. Notwithstanding anything contained herein to the contrary, and except
as it relates to Special Make-Ups, it shall be XXX.xxx's responsibility to
produce and maintain all camera ready product information for use on the TSA
Site and Retailer shall have no responsibility therefor. With respect to Special
Make-Ups, Retailer shall furnish sample products to XXX.xxx with sufficient lead
time to allow XXX.xxx to produce camera ready product information as and when
needed.
2.3 PROJECT LIAISONS. Each party's primary contacts for development efforts
shall be the project liaisons specified in ATTACHMENT A or the persons otherwise
designated in writing by Retailer or XXX.xxx from time to time, as the case may
be.
2.4 ACCEPTANCE. XXX.xxx shall make available to Retailer Alpha and Beta versions
of the TSA Site for Retailer's review and, with respect to the Beta version,
annotation and approval, and Retailer shall provide the latter, all according to
the Milestone Delivery Schedule, if not earlier. Retailer shall review and
comment upon the Alpha version within two Business Days after delivery of the
Alpha version. XXX.xxx shall make any necessary changes and furnish the Beta
version of the TSA Site for Retailer's review and acceptance on or before
September 21, 1999. Retailer shall have seven (7) Business Days after delivery
of the Beta version to review and evaluate the TSA Site (the "Acceptance
Period") in order to assess whether it successfully incorporates the Features
Set, captures the desired E-Commerce Shopping Experience and otherwise complies
with the terms of this Agreement and of the License Agreement. During the
Acceptance Period, Retailer shall identify in writing to XXX.xxx all aspects of
the TSA Site that do not substantially conform as described above. Upon receipt
of Retailer's list of non-conformities, XXX.xxx shall correct promptly all such
non-conformities so that the TSA Site does conform in all material respects, and
substantially conforms in all lesser respects, after which Retailer and XXX.xxx
shall extend the Acceptance Period for a second seven (7) Business Day
Acceptance Period during which Retailer shall confirm that all non-conformities
that were previously identified have been corrected. Notwithstanding the
foregoing, the TSA Site shall be deemed accepted upon the earlier of: (i) its
use in commerce with all Core Functionality, provided, however, XXX.xxx shall
not use the TSA Site in commerce without Retailer's prior approval and consent;
(ii) Retailer's failure to give notice of any non-conformities during an
Acceptance Period; or (iii) Retailer's acceptance of the TSA Site.
The acceptance procedures set forth in this Article 2.4 shall also apply to any
material modifications made to the TSA Site during the Term of this Agreement.
As used herein, "material modifications" shall mean alterations which
significantly change the overall design, "look and feel" or functionality of the
TSA Site, or which extend or reduce the Features Set.
2.5 ADDITIONAL FEATURES OF THE TSA SITE; UPDATES. XXX.xxx, at its own expense
and at no cost to Retailer shall provide such content and features on the TSA
Site as Retailer elects, which contain or make accessible as part of the TSA
Site such information as: corporate information
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(E.G., historic background, mission statement, names of officers and directors),
store locator, public financial information (E.G., SEC filings, annual reports,
etc.), press releases, community programs, employment opportunities for in store
or corporate positions, frequently asked questions, a "contact us" section,
customer reviews, product reviews and any other information which serves to
enhance the TSA Site and help the TSA Site and Retailer attract and retain
Customers.
Without limiting the foregoing, following the initial completion, acceptance and
launch of the TSA Site, XXX.xxx, at its own expense and at no cost to Retailer,
shall update non-shopping aspects of the TSA Site, as requested from time to
time by Retailer, as follows:
(a) Employment Opportunities - XXX.xxx shall furnish technology to
allow Retailer to update as frequently as Retailer desires.
(b) Public Financial Information -
i) Stock Prices - to be updated daily or more frequently
by a link to another web site offering such
information.
ii) SEC Filings and Annual Reports - SEC filings shall be
provided by a link so long as the government (or
Retailer) makes such filings available at no cost.
Both SEC filings and annual reports shall be provided
only if available in portable document format; in the
alternative, XXX.xxx shall provide the consumer with
a form and format in order facilitate efficient
delivery of such information from Retailer's investor
relations or legal departments.
(c) Store Locators - to be updated as such information changes and
is received from Retailer.
(d) Frequently Asked Questions - to be updated by XXX.xxx monthly,
from XXX.xxx's experience in hosting, managing and operating
the TSA Site, and from any information which Retailer
provides.
(e) Corporate Information - to be updated as such information
changes and is received from Retailer.
(f) Retailer's Community Programs - to be updated as such
information changes and is received from Retailer.
(g) Press Releases - XXX.xxx shall furnish technology to allow
Retailer to update and post on the TSA Site directly. Retailer
shall be able to post press releases on the TSA Site as it
desires.
(h) "Contact Us" Section - to be updated as such information
changes and is received from Retailer.
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ARTICLE III
HOSTING AND MAINTENANCE OF THE TSA SITE
3.1 DATA CENTER AND SERVICES. XXX.xxx, at its own expense and at no cost to
Retailer, shall furnish a data center and all "back-end" operations for the
purpose of hosting and maintaining the TSA Site, either directly, or through an
Outsourcing Partner (the "Data Center"). The Data Center shall be configured to
meet or exceed the standards and specifications set forth in ATTACHMENT C. The
Data Center shall host the TSA Site and data servers in a secure environment.
The Data Center shall provide a commercially reasonable communications link to
the public Internet that is monitored at all times with wide area network
management tools. The Data Center shall include all necessary resources,
including backup and mirror systems, to make the Data Center highly reliable and
allow the TSA Site to be operational on a 24 hours/7 days a week basis but for
scheduled down time for maintenance and backup purposes. The Data Center shall
be supported and managed by XXX.xxx and XXX.xxx's operations and systems
administration staff shall maintain all servers and provide all technical and
support resources required to resolve any technical issues or failures of
equipment. XXX.xxx shall operate the Data Center and all servers, all in
accordance with ATTACHMENT C.
Retailer may request changes in the hosting operation or services provided under
this Agreement in order to meet the changing needs of Retailer and of the TSA
Site. Such requests shall be made in writing. Retailer and XXX.xxx shall
evaluate the needs and proposed changes to determine the best course of action
and amend ATTACHMENT C, if necessary and agreed to by the Parties.
3.2 XXX.xxx shall make the Data Center ready for acceptance testing on or
before October 14, 1999. Retailer or its representatives may conduct
acceptance tests during the following two-week period to verify that the
Data Center meets the agreed upon acceptance criteria. If at the end of
such two-week period, the Data Center has failed to meet such criteria, the
Parties shall work together to determine the reasons for such failure. The
Party whose action or inaction is determined to be the cause of such
failure, shall, with the cooperation and assistance of the other Party,
work to promptly remedy such failure. If the Data Center has not passed the
acceptance criteria within thirty (30) days after the end of such two-week
period, and if the cause has been attributed to XXX.xxx or its Outsourcing
Partner, Retailer shall have the right, upon written notice to XXX.xxx, to
terminate this Agreement at the end of such thirty day period. Once
Retailer has accepted the Data Center in accordance with the agreed upon
acceptance criteria, XXX.xxx shall immediately staff its operations team
and begin operating the Data Center.
3.3 PERFORMANCE MONITORING. XXX.xxx and Retailer shall work together during the
implementation of the Data Center to mutually agree upon the reports that
XXX.xxx shall prepare and deliver as part of normal operations to document
performance once the Data Center has been accepted and gone into operation.
XXX.xxx shall permit Retailer to track performance and derive statistics via
remote access to the Data Center.
3.4 HOSTING SERVICES. XXX.xxx shall load the TSA Site onto server(s) that are
connected to the Internet and readily accessible via the Web through use of the
URL. XXX.xxx shall ensure
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that the TSA Site is functional and ready to process transactions in an
efficient manner, and that it is compatible with all major software platforms,
including the major web browsers and helping applications and plug-ins. XXX.xxx
shall upload all TSA Content, including updates, to the TSA Site within three
(3) Business Days of delivery to XXX.xxx. With XXX.xxx's prior written consent
and cooperation, Retailer may electronically transmit or upload TSA Content
directly to the Web Site.
3.5 MAINTENANCE SERVICES. XXX.xxx shall maintain the TSA Site so that it
functions in a reasonably error free manner and according to the standards and
specifications set forth in ATTACHMENT C. Upon notification of an error in the
TSA Site or of a non-conformity between the TSA Site and the Features Set or
ATTACHMENT C, whether from Retailer or from any Customer or user of the TSA
Site, XXX.xxx shall promptly commence an investigation into the reported error,
and XXX.xxx shall, upon reproducing such error, use reasonable commercial
efforts to correct such error in a timely fashion. While providing any
maintenance services, XXX.xxx shall ensure that the TSA Site is functional and
ready to process transactions in a reasonably efficient manner, provided,
however, that XXX.xxx may, during low usage periods and as mutually determined
by the Parties, temporarily take down or block access to the TSA Site to perform
maintenance.
3.6 SEARCH ENGINE REGISTRATION. On or before the Launch Date, and from time to
time as requested by Retailer during the Term of this Agreement, XXX.xxx shall
write professional meta tags and register the TSA Site and Retailer's URL with
the as many of the leading search engines and directories, as well as many of
the leading shopping, industry and regional directories, as practicable. The
Parties acknowledge that submission of registration materials does not guarantee
that registration will actually take place.
ARTICLE IV
MERCHANDISING THE TSA SITE
4.1 IN GENERAL. The Parties acknowledge that Retailer's core competencies lie,
in part, in the selection, sourcing, purchasing, distribution, presentation,
advertising and sale of merchandise, including without limitation, the
establishment and maintenance of favorable relationships with merchandise
vendors, all in relation to operating land-based sporting goods stores.
Similarly, XXX.xxx's (or GSI's) core competencies lie, in part, in the creation,
development and operation of e-commerce businesses, including, without
limitation, making it possible for land-based retailers to successfully migrate
to and operate e-commerce businesses which may differ, especially as to
merchandising, from their land-based stores. The Parties anticipate that the
majority of merchandise to be offered and sold on the TSA Site shall be
merchandise which Retailer originally selects and orders for its TSA Stores.
Under this Agreement, XXX.xxx shall be kept informed of Retailer's selection and
ordering processes and shall be entitled, subject to the restrictions set forth
herein, to select from the full range of merchandise offered in Retailer's TSA
Stores the merchandise to be offered on the TSA Site. XXX.xxx's selection may be
supplemented in part, as provided herein, with merchandise not otherwise offered
or sold in Retailer's TSA Stores.
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4.2 RESTRICTIONS. In no event shall XXX.xxx offer or sell on the TSA Site, and
Retailer shall not be required to assist XXX.xxx in obtaining:
(a) firearms, ammunition, explosives and explosive materials,
weapons, and any related items, equipment and accessories
which may be subject to licensing, permitting and or other
governmental restrictions on sales, distribution and/or
exports of the same;
(b) counterfeit merchandise or merchandise which infringes the
valid Intellectual Property Rights of others within an
applicable jurisdiction;
(c) any merchandise for which merchants are charged with in-person
verification of identity or age or other qualifications to own
or purchase the subject merchandise;
(d) any merchandise which is subject to any export prohibition
from the U.S., or which is barred or otherwise prohibited from
use in any export destination country outside the U.S., unless
such merchandise is offered, sold and delivered to Customers
only within the U.S.;
(e) any merchandise, which if offered or sold on the TSA Site,
would violate the terms of any agreement between the subject
vendor and Retailer, including, without limitation, any term
restricting distribution to the territories served by
Retailer's TSA Stores, or which would otherwise materially
damage the relationship between the subject vendor and
Retailer; and
(f) any merchandise which Retailer requests in writing be removed
from the TSA Site, if for legitimate business purposes set
forth in Retailer's notice to XXX.xxx; provided that Retailer
purchases such merchandise from XXX.xxx at XXX.xxx's cost if
such merchandise cannot be returned to the vendor.
The above restrictions shall apply at all times to the TSA Site. Retailer and
XXX.xxx agree to communicate in good faith, as needed, concerning the
construction, application and enforcement of the above restrictions.
4.3 AVAILABLE MERCHANDISE. Subject to the above restrictions, XXX.xxx shall have
the right to offer and sell on the TSA Site, and Retailer shall assist XXX.xxx
in obtaining:
(a) In Line Merchandise;
(b) Special Make-Ups;
(c) Closeout Merchandise, but only such Closeout Merchandise as
Retailer currently carries, or places orders for sale in its
TSA Stores;
(d) Markdowns;
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(e) On Line Gift Certificates; and
(f) TSA Gift Certificates.
Merchandise in categories 4.3(a) through (f) above shall be referred to as
"On-Line Merchandise."
4.4 VENDOR RELATIONS; ORDERS BY XXX.XXX. (a) At such time and by means of a form
of written or electronic notice which is mutually agreed upon by the Parties,
Retailer shall notify all of its vendors: (i) of the formation of XXX.xxx as a
venture of Retailer and GSI; (ii) that the TSA Site is operated by XXX.xxx;
(iii) that XXX.xxx shall be coordinating its purchases with Retailer and
purchasing additional quantities of merchandise as ordered by Retailer; (iv)
that each vendor, for the benefit of Retailer, should sell its merchandise to
XXX.xxx at the same prices, with the same Advertising Co-op and Discretionary
Funds and on the same terms and conditions as it sells the same merchandise to
Retailer; and (v) that such merchandise should be shipped and invoiced directly
to XXX.xxx. If a given vendor refuses to directly ship to and invoice XXX.xxx,
XXX.xxx shall notify Retailer. If the vendor cannot be persuaded to deal
directly with XXX.xxx, then subject to Retailer's consent, which it may withhold
as it sees fit, Retailer may place the order for XXX.xxx and such vendor may
ship to and invoice Retailer for such merchandise. Retailer shall then invoice
XXX.xxx at Retailer's net cost, and XXX.xxx shall pay Retailer the purchase
price and all freight and handling charges within thirty days of any such
shipment by Retailer to XXX.xxx. XXX.xxx shall pay Retailer its PRO RATA share
(based upon that portion of the shipment purchased by Retailer for XXX.xxx as it
relates to the entire shipment received by Retailer from that vendor) of the
actual freight costs from the vendor's facility to Retailer's Warehouse, as well
as any handling and freight costs incurred by Retailer in packing and shipping
the subject merchandise from Retailer's Warehouse to XXX.xxx's fulfillment
facility. Retailer shall include a detailed xxxx of lading or invoice with each
such shipment.
(b) IN LINE MERCHANDISE. Retailer shall use its best efforts to advise
XXX.xxx within ten (10) Business Days after placing a purchase order with a
vendor for any In Line Merchandise, identifying the vendor and the item (by
category, class, UPC and/or Retailer's sku number), and setting forth Retailer's
net cost, Retailer's proposed original retail price and expected date of receipt
at Retailer's Warehouse.
(c) SPECIAL MAKE-UPS; OWN BRAND MERCHANDISE. Retailer shall use its
best efforts to advise XXX.xxx within ten (10) Business Days after placing a
purchase order with a vendor for any Special Make-Ups or Own Brand Merchandise,
identifying the vendor and the item (by category, class, UPC and/or Retailer's
sku number), and setting forth Retailer's net cost, Retailer's proposed original
retail price and expected date of receipt at Retailer's Warehouse. Further,
Retailer shall advise XXX.xxx and, if possible, furnish XXX.xxx with a sample of
the Special Make-Ups or Own Brand Merchandise and advise XXX.xxx of the color
selection and size range. XXX.xxx shall have the right to purchase up to five
per cent of the Special Make-Up or Own Brand Merchandise, proportionately as to
size and color, as ordered by Retailer. XXX.xxx shall have five (5) business
days after receipt of notice from Retailer to place its order for Special
Make-Ups or Own Brand Merchandise and, if so, the quantity thereof.
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Notwithstanding anything contained herein to the contrary, XXX.xxx recognizes
that there may be instances where there shall be an insufficient amount of a
particular item of Special Make-Ups or Own Brand Merchandise to warrant selling
such merchandise on-line. In such instances Retailer shall not be required to
offer such Special Make-Ups or Own Brand Merchandise to XXX.xxx. Further,
XXX.xxx acknowledges that Retailer may not be able to offer to XXX.xxx certain
Special Make-Ups or Own Brand Merchandise which is not available in all of
Retailer's TSA Stores.
(d) CLOSEOUT MERCHANDISE. Retailer shall use its best efforts to advise
XXX.xxx within ten (10) Business Days after issuing a purchase order for
Closeout Merchandise from a vendor. Retailer may from time to time agree to sell
Closeout Merchandise to XXX.xxx on such terms and in such amounts as may be
determined by the Parties, provided, however, that Retailer shall use
commercially reasonable efforts to make Closeout Merchandise available to
XXX.xxx, subject to availability.
(e) MARKDOWNS. Retailer may from time to time agree to sell Markdowns
to XXX.xxx on such terms and conditions and in such amounts as may be determined
by the Parties.
(f) The Parties shall cooperate with each other so that, as between
XXX.xxx and Retailer, as much of the processes set forth in Article 4.4(a)-(f)
above as possible may be accomplished electronically.
4.5 PRICES OF ON-LINE MERCHANDISE. Subject to the terms of this paragraph and to
any applicable laws, Retailer shall [*]. [*] shall adopt and be responsible for
implementing such price determinations. Retailer shall use its best efforts to
[*]; provided, however, that for any item which [*]. XXX.xxx may assist Retailer
in [*]. Retailer acknowledges that XXX.xxx, unless it elects to do so, [*]. In
such event, Retailer shall nevertheless have the right to [*] The Parties shall
cooperate with each other so that the entire pricing process between XXX.xxx and
Retailer may be accomplished electronically.
4.6 ON-LINE GIFT CERTIFICATES; TSA GIFT CERTIFICATES. Subject to Retailer's
prior review and approval of the form and content of any proposed On-Line Gift
Certificate and of XXX.xxx's redemption policy, and subject to the terms of the
"License Guidelines and Restrictions" under the LICENSE AGREEMENT, XXX.xxx may
develop, publish and offer for sale On-Line Gift Certificates on the TSA Site.
XXX.xxx shall clearly and conspicuously state in connection with any offer to
purchase or sell such On-Line Gift Certificates, and state on the On-Line Gift
Certificates themselves, that On-Line Gift Certificates are redeemable only on
the TSA Site and not at TSA Stores. In addition, subject to the prior
negotiation and agreement of the Parties as to all terms, XXX.xxx may offer TSA
Gift Certificates for sale on the TSA Site, but only with the clear and
conspicuous statement that such TSA Gift Certificates are redeemable only in TSA
Stores. As between XXX.xxx and Retailer, XXX.xxx shall bear any escheat duties
with respect to On-Line Gift Certificates.
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ARTICLE V
ORDER PROCESSING AND CUSTOMER SERVICE
5.1 PROCESSING OF CUSTOMER ORDERS. Except as otherwise provided in Article 6.3,
XXX.xxx shall be solely responsible for processing all E-Commerce Business.
XXX.xxx shall enter into merchant agreements in its own name and on its own
account with at least the credit card providers VISA, Master Card and American
Express. Further, XXX.xxx shall use commercially reasonable efforts to provide
the functionality to accept Retailer's forthcoming private label credit card, on
the same terms and conditions as accepted by Retailer at Retailer's TSA Stores.
XXX.xxx shall provide secure systems for submitting and processing all credit
card transactions, as well as systems for immediate confirmation of all
E-Commerce Orders, and confirmation of shipments, out of stock or back orders
via mail and/or email. XXX.xxx shall promptly process all E-Commerce Orders
received from Customers via the TSA Site. XXX.xxx shall take the Customer's
credit card number at such time as On-Line Merchandise or related services are
ordered. XXX.xxx shall charge the Customer's credit card at the time the On-Line
Merchandise is shipped or the related services are furnished. The transaction
shall appear on the Customer's credit card under the merchant name
"XxxXxxxxxXxxxxxxxx.xxx" and proceeds shall be deposited into XXX.xxx's
designated bank account for full credit to XXX.xxx. XXX.xxx shall make all
arrangements for delivery of all On-Line Merchandise and related services
purchased on the TSA Site.
5.2 CUSTOMER RELATIONS. XXX.xxx shall be responsible for providing all Customer
service relating to the TSA Site, which shall be provided in a courteous and
professional manner consistent with that provided by other reputable on-line
retailers. XXX.xxx shall invite Customer feedback via a "Contact us" or "How are
we doing?" feature. Beginning on and after the Launch Date, XXX.xxx shall
maintain an email reply service and a toll-free telephone number and furnish
adequate staff on a 24 hours a day/7 days a week basis to receive and handle
telephone inquiries, requests and complaints from Customers. XXX.xxx shall
periodically summarize and share Customers' on-line and telephone feedback with
Retailer, and continuously use it to improve XXX.xxx's operations, as
applicable.
5.3 ON-LINE CUSTOMER LOYALTY PROGRAMS. Subject to Retailer's prior review and
approval, which shall no be unreasonably withheld, XXX.xxx shall have the right
to establish On-Line Customer Loyalty Programs in order to encourage continued
E-Commerce Orders. Customer Loyalty Programs established by XXX.xxx shall be
used only in connection with E-Commerce Orders and Retailer's customer loyalty
programs shall be used only in connection with purchases at Retailer's TSA
Stores.
5.4 RETURN OF ON-LINE MERCHANDISE. XXX.xxx's return policy shall be consistent
with Retailer's return policy. With each shipment of merchandise, XXX.xxx shall
specifically instruct all Customers that NO On-Line Merchandise purchased from
the TSA Site may be returned to Retailer's TSA Stores and may only be returned
to XXX.xxx in accordance with the instructions enclosed; provided, however, that
Retailer at its sole discretion, in order to maximize its own customer goodwill,
may accept any such On-Line Merchandise for return in accordance with Retailer's
return policy, and thereafter return the On-Line Merchandise (or destroy for
credit, as agreed by the Parties) to XXX.xxx's fulfillment center. Once each
quarter, or more often as Retailer sees fit, it shall prepare and send an
itemized invoice describing all returns of On-Line Merchandise which it has
accepted at TSA Stores during the period elapsed since the
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last such invoice, setting forth the items returned, quantities, amounts
refunded or values exchanged, and any packing, handling and freight charges
incurred by Retailer in shipping such On-Line Merchandise to XXX.xxx. XXX.xxx
shall pay each invoice in full within 30 days of receipt from Retailer. The
Parties shall negotiate in good faith and mutually agree to an appropriate
service charge which Retailer may add to all such invoices.
ARTICLE VI
FULFILLMENT
6.1 FULFILLMENT DUTIES OF XXX.XXX. XXX.xxx shall use commercially reasonable
efforts commensurate with leading e-commerce retail fulfillment operations to
provide fulfillment services for the TSA Site, according to the service
standards set forth in ATTACHMENT C. These fulfillment services shall include,
without limitation:
(a) ORDER RECEIPT: accept all Customer orders (and order inquiries
and cancellations) on-line from TSA Site, and via dedicated
toll-free telephone number(s) on a 24 hours/day, seven days a
week basis. Process credit cards, verify authorizations and
track frauds. Compute and collect applicable taxes and
shipping and handling charges. Track, verify and confirm all
orders by phone, mail or email as appropriate.
(b) CREDIT CARD AUTHORIZATION AND BILLING: Process credit card
payments, verify authorizations and track frauds. Reauthorize
initial denials. Xxxx credit cards at time of shipment.
(c) MERCHANDISE RECEIVING AND INSPECTION: Receive, count and
inspect merchandise at warehouse or distribution center. Issue
and track backorders.
(d) INVENTORY CONTROL: Track all merchandise on order, in
warehouse or distribution center, and as sold to Customers.
Manage shrinkage.
(e) PICK, PACK AND SHIP: Pick merchandise to fill orders from
warehouse or distribution center. Pack and seal merchandise
for safe shipment. Ship via Customer designated method within
the time frames selected by or promised to Customers.
(f) SHIPPING VERIFICATION AND MANIFESTING: Select appropriate
shipping carriers, apply appropriate shipping labels, and
communicate with carriers and Customers to verify and track
all shipments.
(g) RETURNS PROCESSING: Provide on-line and toll-free telephone
support for processing merchandise returns. Issue RA numbers,
UPS call tags and the like. Verify, confirm and track returns.
Issue credit card credits (or refunds or exchanges) to
Customers promptly upon receipt of returned merchandise.
Process returns of defective merchandise to recover from
vendors.
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(h) CUSTOMER SERVICE: In addition to the services afforded to
Customers above and as described in Article V, invite, track
and respond as appropriate to Customer feedback. Provide
systematic capability to track and monitor customer service
activity to include such information as original order number,
order date, reason for Customer contact, and resolution. For
phone calls, track time to answer and call duration. For
e-mail, track elapsed time from Customer send time/date to
XXX.xxx response time/date.
(i) REPORTING: Provide reports to Retailer, including, without
limitation, concerning daily, weekly and monthly performance
in each of the above categories, demand by page in the TSA
Site, demand by item in the TSA Site, cancellations and
returns, defectives, and the like.
6.2 RETAILER'S OPTION TO ASSUME FULFILLMENT DUTIES. The parties agree that, at
the option of Retailer, at any time after the second anniversary of the Launch
Date, and upon nine months' prior written notice given by Retailer to XXX.xxx
and GSI, Retailer may assume all fulfillment duties with respect to the
E-Commerce Business and the TSA Site, provided that Retailer is able to satisfy
the following conditions:
(a) Retailer demonstrates to XXX.xxx's reasonable satisfaction
that it has the ability to provide the same or better
fulfillment services as XXX.xxx's then current fulfillment
Outsourcing Partner at the same or better cost;
(b) Retailer demonstrates to GSI's reasonable satisfaction that
any resulting modifications needed in GSI's engineering
architecture shall seamlessly integrate Retailer's fulfillment
systems with GSI's operations. Further, if modifications are
needed to integrate with GSI's operations, Retailer shall bear
the costs of making such modifications; and
(c) If Retailer desires to outsource fulfillment after satisfying
the foregoing conditions, it may only do so: (i) if Retailer
also outsources all of its other e-commerce, mail order and
catalog fulfillment services; and (ii) the costs charged by
Retailer to XXX.xxx for the outsourced fulfillment services
for the TSA Site does not include any markup by Retailer.
ARTICLE VII
ADVERTISING AND MARKETING THE TSA SITE
7.1 PRIOR APPROVAL OF AGREEMENTS. XXX.xxx agrees to obtain the written approval
of Retailer prior to entering into any agreement or arrangement with Advertising
and Marketing Partners of XXX.xxx, including, without limitation, all agreements
for on-line or off-line links, cross promotion, exclusive arrangements,
affiliate arrangements, and all other advertising exchange, traffic
accumulation, aggregation and distribution methods or arrangements.
7.2 USE OF ADVERTISING CO-OP AND DISCRETIONARY FUNDS. (a) XXX.xxx shall use all
Advertising Co-op and Discretionary Funds received by XXX.xxx directly from
vendors as a
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result of the purchase of On-Line Merchandise for the TSA Site, exclusively to
promote the TSA Site, in the manner and according to strategies as the Parties
shall mutually determine. All proposed advertisements shall be submitted to
Retailer for Retailer's prior review and approval.
(b) Any Advertising Co-op and Discretionary Funds received by Retailer
due to a given vendor's refusal to deal directly with XXX.xxx, and arising from
Retailer's purchase of any On-Line Merchandise for XXX.xxx, shall be passed
through to XXX.xxx by Retailer. In any event, Retailer and XXX.xxx each prefer
that vendors deal directly with XXX.xxx, and each shall request Retailer's
vendors to do so.
7.3 XXX.XXX'S ADDITIONAL ADVERTISING COMMITMENT. XXX.xxx shall spend, prior to
December 31, 2007, not less than [*] in excess of the amount of Advertising
Co-op and Discretionary Funds spent by XXX.xxx for advertising of TSA's Site, of
which at least [*] shall be spent by December 31, 2001 and the balance remaining
will be spent at the rate of at least [*] per Fiscal Year until all [*] is
spent. In the event of a breach of this Article 7.3, XXX.xxx shall have the
right to cure such breach within 30 days of receipt of written notice of breach
from Retailer.
7.4 CROSS PROMOTION. Subject to Retailer's prior review and approval, and
subject to the terms of the License AGREEMENT, XXX.xxx shall have the right to
use Retailer's URL, the name and xxxx "XxxXxxxxxXxxxxxxxx.xxx" and certain other
Marks (as defined in the LICENSE AGREEMENT) to cross promote the TSA Site with
Advertising and Marketing Partners of XXX.xxx.
7.5 URL INTEGRATION BY RETAILER. Retailer, commencing no later than October 1,
1999 and on a rolling basis as it orders or prepares new printed materials or
advertisements or other communications pieces, and continuing during throughout
the Term, at no cost to XXX.xxx, shall use its best efforts to provide for URL
Integration in its prepared advertising, marketing and public and investor
relations communications pieces, as follows:
(a) by including its URL within substantially all of its print
media advertising (including, without limitation, in
newspapers, periodicals, circulars, billboards, print
materials, shopping bags, cash register receipts and print
sponsorship advertising);
(b) by including its URL in substantially all of Retailer's
television advertising; and
(c) by mentioning its URL during substantially all of Retailer's
radio advertisements.
Retailer shall not be required to use the URL in any formats or applications
where it deems such use to be inappropriate, poor design, unreasonable or
awkward (E.G., in a radio spot which is too short) or where such use is rejected
or unacceptable under the terms of any applicable advertising, marketing or
sponsorship agreement. Retailer may use the following disclaimer together with
the URL if appropriate and necessary: "On Line Merchandise offerings may vary
from products offered in The Sports Authority stores."
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ARTICLE VIII
ADMINISTRATIVE SERVICES
8.1. ADMINISTRATIVE SERVICES TO BE PROVIDED BY XXX.XXX. XXX.xxx shall provide
the following services to support the TSA Site and the E-Commerce Business:
(a) XXX.xxx shall, as required by law, or as requested by
Retailer, GSI or both:
(i) formulate operating plans and budgets and share these
with GSI and Retailer, at least semi-annually;
(ii) provide long range forecasting and statistical
analyses and share these with GSI and Retailer;
(iii) establish policies, provide technical support for and
prepare and maintain financial books, coordinate
financial audits, maintain statutory records and
registers, and prepare and file financial reports,
accounts and returns and income tax and other
taxation returns required by the U.S. and other
national, state and local governments;
(iv) obtain and administer national, state, and local
licenses and permits necessary to conduct the
E-Commerce Business and to operate the TSA Site;
(v) install and maintain various financial reporting
systems, including general accounting, sales audit,
inventory control, internal control, asset accounting
and other like systems as are customary and usual for
similar enterprises;
(vi) assist with public affairs and corporate
communications services involving the TSA Site and
the E-Commerce Business; and
(vii) assist with developing advertising and marketing
strategies and plans, and buying and managing print,
electronic, sponsorship and other advertising and
signage programs.
(b) FINANCIAL STATEMENTS. XXX.xxx shall provide Retailer with monthly
unaudited financial statements in such detail as Retailer may from time to time
require and shall provide Retailer with real-time electronic access on a 24
hour/7 days a week basis to its books and records to the extent the same are
maintained in an electronic media and accessible on-line.
(c) AUDITS. During the term of this Agreement and for a period of two
(2) years thereafter, each Party shall keep and maintain accurate books and
records relating to this Agreement. Upon request, Retailer or its agent(s) may
inspect, audit and analyze copies of those records of XXX.xxx relating to this
Agreement. Upon request, XXX.xxx or its agent(s) may inspect, audit and analyze
copies of those records of Retailer relating to this Agreement. Any
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such audit by a Party (the "Auditing Party") shall be conducted at the Auditing
Party's own cost and expense, during normal business hours at the regular place
of business of the other Party (the "Audited Party") upon at least ten (10) days
prior written notice. Each Party may exercise its right to audit hereunder no
more than once per year, unless a material discrepancy (I.E., a discrepancy in
excess of [*] or [*]) was discovered in an audit. In such cases, the Auditing
Party may audit every six (6) months until the results of the audit show that a
material discrepancy no longer exists. All underpayments shall be promptly
remitted to the Auditing Party. No payments rendered under this Agreement shall
be subject to audit more than two (2) years from the date of its presentation.
Neither Party shall exercise its audit rights unless it has a reasonable basis
to believe the information provided by the other Party is inaccurate.
ARTICLE IX
RETAILER'S SERVICES
9.1 PROJECT MANAGER; MERCHANDISING MANAGER. Retailer shall make two of its
employees available to serve as a full-time project manager and a full-time
merchandising manager to work with XXX.xxx with respect to all aspects of
Retailer's rights and obligations pursuant to the TSA Site, the E-Commerce
Business and this Agreement. Such "Dedicated Employees" shall be hired,
employed, managed and compensated by Retailer, and XXX.xxx shall reimburse
Retailer for each such Dedicated Employee's services in the manner set forth
below.
9.2 CHARGES. XXX.xxx shall reimburse Retailer for all commercially reasonable
compensation costs incurred by Retailer in connection with the Dedicated
Employees, including, without limitation, XXX.xxx's allocable share of the
wages, salary, bonus, 401(k), profit sharing and other standard compensation and
employee benefits as paid or furnished by Retailer, and of any employment based
sums that Retailer as an employer is required by law to contribute on behalf of
such Dedicated Employees to local, state and federal agencies. Each Dedicated
Employee shall keep track of all work time that he or she devotes to working for
any party other than XXX.xxx and periodically report the same to Retailer. At
least once each month Retailer shall prepare a written statement (a "Dedicated
Employee Invoice") identifying each Dedicated Employee employed on XXX.xxx's
behalf during the preceding month, itemizing the compensation furnished by
Retailer for each Dedicated Employee, totaling the amounts by Dedicated
Employee, and reducing such totals proportionately for the time each Dedicated
Employee spent working for parties other than XXX.xxx during the subject month.
9.3 XXX.XXX'S PAYMENTS. Dedicated Employee Invoices shall be calculated and sent
by Retailer to XXX.xxx on a monthly basis. Less frequent billing may be
appropriate for periods in which minimal time has been spent or minimal costs
have been incurred. XXX.xxx agrees to pay Retailer all charges within thirty
(30) days after the receipt of any Dedicated Employee Invoice from Retailer.
ARTICLE X
CUSTOMER DATA, FINANCIAL DATA AND DATABASES
10.1 OWNERSHIP AND USE OF CUSTOMER DATA. (a) TSA shall own all right, title and
interest in and to the Customer Data, while XXX.xxx shall have an irrevocable
right and license hereunder
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to use the Customer Data in its business operations. XXX.xxx shall adhere to all
United States and Canadian privacy and data protection laws applicable to its
gathering, processing, storing and transmitting of Customer Data. XXX.xxx shall
use its best efforts to adhere to all such privacy and data protection laws of
all other nations and shall indemnify TSA for any loss, damage or expense caused
by its failure to do so; PROVIDED, HOWEVER, that the parties agree that such
failure to do so shall not be deemed a breach of this Agreement.
(b) Each Party shall treat the Customer Data as Confidential
Information of the other Party in accordance with the provisions of Article
11.1. The Parties agree that XXX.xxx may use Customer Data in the operation of
the TSA Site and the E-Commerce Business, and that Retailer may use the Customer
Data in the operation of Retailer's land based stores, but neither Party shall
furnish, rent, sell or otherwise disclose Customer Data to any person or entity
whatsoever without the prior written consent of the other Party. Further, the
Parties agree not to furnish, rent, sell or otherwise disclose to any person or
entity whatsoever any Financial Data, without the other Party's prior written
consent and subject to such terms and conditions as the Parties may mutually
determine. Notwithstanding the foregoing, XXX.xxx may permit GSI, at no charge
to GSI, to use Financial Data (BUT NOT Customer Data) to form trends and overall
research as to the on-line shopping habits of consumers.
10.2 DELIVERY OF CUSTOMER DATA AND FINANCIAL DATA TO RETAILER. From time to
time, Retailer may request that XXX.xxx provide to Retailer any or all of the
Customer Data or the Financial Data as Retailer shall specify, including,
without limitation, the following information:
(a) Customers' names;
(b) Customers' addresses;
(c) Customers' phone numbers;
(d) Customers' e-mail addresses;
(e) items purchased;
(f) amount spent;
(g) information as to how and from where Customers reached TSA Site;
(h) "refers";
(i) unique visitors to site;
(j) page views per site;
(k) top ten most viewed pages;
(l) bottom ten least viewed pages;
(m) time of day traffic patterns;
(n) sales by product and brand in the aggregate;
(o) Customer comments and complaints (shall be furnished on a
monthly basis or more often as requested); and
(p) such additional information as requested by Retailer.
Upon receipt of such request, XXX.xxx shall provide the Customer Data or
Financial Data to Retailer in a commercially standard format, either via
diskette, CD-ROM, electronically, or via another mutually agreeable method.
XXX.xxx shall use commercially reasonable efforts to ensure that the Customer
Data and Financial Data provided to Retailer accurately and completely reflects
the Customer Data and Financial Data in the TSA Site, but until such data is
audited and
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XXX.xxx's books are closed for the applicable period, XXX.xxx shall have no
obligation to check the accuracy, validity or integrity of the Customer Data or
Financial Data.
10.3 OWNERSHIP AND USE OF FINANCIAL DATA. XXX.xxx, Retailer and GSI shall
jointly and severally own all right, title and interest in and to the Financial
Data, except that all use of the Financial Data by any of them shall always be
subject to the restrictions set forth herein.
10.4 OWNERSHIP OF DATABASES. GSI shall own all right, title and interest in and
to the Databases, while Retailer and XXX.xxx may use the Databases subject to
other restrictions set forth herein.
ARTICLE XI
CONFIDENTIALITY
11.1 CONFIDENTIAL INFORMATION. Each Party acknowledges that, in connection with
the performance of this Agreement, it may receive Confidential Information of
the other Party. For the purpose of this Agreement, "Confidential Information"
shall mean information or materials that is marked "confidential" or which the
Receiving Party knows or has reason to know is the confidential or proprietary
information of the Disclosing Party, either because (i) such information is
marked or otherwise identified by the Disclosing Party as confidential or
proprietary, or (ii) such information has commercial value and is not generally
known in the Disclosing Party's trade or industry. Confidential Information
shall include, without limitation: (a) concepts and ideas relating to the
development and distribution of content in any medium; (b) trade secrets,
drawings, inventions, know-how, software programs, and software source
documents; (c) information regarding plans for research, development, new
service offerings or products, marketing and selling, business plans, business
forecasts, budgets and unpublished financial statements, licenses and
distribution arrangements, prices and costs, suppliers and customers; (d)
existence of any business discussions, negotiations or agreements between the
parties; (e) the terms and conditions of this Agreement; (f) all information
with respect to Retailer's vendors, Retailer's price and cost structures,
XXX.xxx's vendors, XXX.xxx's merchandise price and cost structures, the cost of
merchandise sold by XXX.xxx, the existence or amount of any cooperative
advertising subsidy or rebate; and (g) all prices of merchandise to be sold on
the TSA Site prior to publication of such prices on the TSA Site; provided,
however, that Retailer shall be provided with the information referred to in
clauses (f) and (g).
11.2 CONFIDENTIALITY. The Receiving Party hereby agrees: (i) to hold and
maintain in strict confidence all Confidential Information of the Disclosing
Party and, except as otherwise permitted herein, not to disclose it to any third
party; and (ii) not to use any Confidential Information of the Disclosing Party
except as permitted by this Agreement or as may be necessary for the Receiving
Party to perform its obligations under this Agreement. The Receiving Party shall
use at least the same degree of care to protect the Disclosing Party's
Confidential Information as it uses to protect its own Confidential Information
of like importance, and in no event shall such degree of care be less than
reasonable care. The obligations and restrictions imposed by this Article 11
shall terminate five (5) years after the expiration or termination of this
Agreement.
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11.3 EXCEPTIONS. Notwithstanding the foregoing, the parties agree that
Confidential Information shall not include any information that: (a) was in the
public domain at the time it was communicated to the Receiving Party by the
Disclosing Party; (b) entered the public domain subsequent to the time it was
communicated to the Recipient by the Disclosing Party through no fault of the
Receiving Party; (c) was in the Receiving Party's possession free of any
obligation of confidence at the time it was communicated to the Receiving Party
by the Disclosing Party; (d) was rightfully communicated to the Receiving Party
by a third party, free of any obligation of confidence, subsequent to the time
it was communicated to the Receiving Party by the Disclosing Party; (e) was
developed by employees or agents of the Receiving Party independently of and
without reference to any information communicated to the Receiving Party by the
Disclosing Party; or (f) was communicated by the Disclosing Party to an
unaffiliated third party free of any obligation of confidence. In addition, the
Receiving Party may disclose the Disclosing Party's Confidential Information in
response to a valid order by a court or other governmental body, as otherwise
required by law, or as necessary to establish the rights of either party under
this Agreement; provided, however, in the event that the Receiving Party
receives a demand to disclose such Confidential Information in connection with a
legal action or proceeding, the Receiving Party, if possible, shall first notify
the Disclosing Party of the demand in order to provide the Disclosing Party an
opportunity to seek a protective order. XXX.xxx may also disclose certain of
Retailer's Confidential Information to GSI in connection with the performance by
GSI of its duties, but only to the extent expressly permitted in the E-COMMERCE
SERVICES Agreement by and among XXX.xxx, GSI and Retailer of even date herewith.
11.4 CONFIDENTIALITY OF THIS AGREEMENT. The Parties acknowledge that the terms
and conditions of this Agreement constitute Confidential Information which shall
be governed by the terms of this Article 11.
ARTICLE XII
APPROVALS
12.1 APPROVAL PROCESS. Except as otherwise expressly set forth herein, and
except with respect to any use of "Licensed Property" (as defined in the LICENSE
AGREEMENT) which requires approval under the LICENSE AGREEMENT, when a given
provision calls for prior review and approval by one Party of a submission by
the other Party, the Party receiving the submission shall review it in a timely
manner and use its best efforts to communicate in writing its approval or
disapproval as soon as practicable after receiving the same. Failure to
communicate approval within five (5) Business Days of receipt of the submission
shall be deemed a disapproval. The submitting Party may re-start the approval
process by making a second submission marked "Second Request." The Party
receiving the second submission shall again review it in a timely manner and use
its best efforts to communicate in writing its approval or disapproval as soon
as practicable after receiving the same. Failure to communicate approval within
five (5) Business Days of receipt of the submission shall be deemed an approval.
In no event, shall the Party seeking approval produce, distribute, or otherwise
follow through on or implement the subject of the submission until approval is
granted in writing by the Party charged with the right of approval, or until the
applicable period has expired after a Second Request and the Party receiving the
second submission has failed to reply.
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ARTICLE XIII
EXCLUSIVITY
13.1 RETAILER. During the term of this Agreement, except as otherwise permitted
under Article 2.6(a) of the LICENSE AGREEMENT, Retailer agrees to not engage in
the business of creating, developing, operating, advertising and promoting a
business-to-consumer e-commerce business on the Internet which directly or
indirectly generates in excess of 20% of its revenues from the sale of sporting
goods, athletic footwear, athletic apparel and related goods and services
("Restricted Business"), except that if Retailer acquires another business
selling sporting goods, athletic footwear and/or athletic apparel and related
goods and services either through land based stores or through catalog sales
which is engaged in e-commerce business, Retailer can continue to operate the
e-commerce business of the acquired business until such time, if ever, that
Retailer changes 50% or more of the acquired business's land based stores to
stores operating under the name "The Sports Authority" or any variation thereof
or changes the catalog name to "the Sports Authority" or any variation thereof.
If Retailer desires to engage in any Restricted Business during the term of this
Agreement, it shall only do so through XXX.xxx and such business shall be
conducted on the terms and conditions set forth in this Agreement.
13.2 XXX.XXX. During the Term of this Agreement, XXX.xxx agrees to NOT engage in
the sale of goods over the Internet as a shareholder, partner or investor in any
corporation, partnership, limited liability company or other entity or venture
which directly or indirectly generates in excess of 20% of its revenues from the
sale of sporting goods, athletic footwear, athletic apparel and related goods
and services.
ARTICLE XIV
REPRESENTATIONS AND WARRANTIES
14.1 BOTH PARTIES. Each Party represents and warrants to the other Party that:
(a) it is a corporation duly organized, validly existing and in good standing
under the laws of its state of incorporation and that it has the power and
authority to enter into this Agreement and the transactions contemplated herein;
(b) the consummation of the transactions described by this Agreement shall not
conflict with or result in a breach of any of the terms, provisions or
conditions of its Articles of Incorporation or Bylaws, or any statute or
administrative regulation or any order, writ, injunction, judgment or decree of
any court, regulatory or governmental authority or of any agreement or
instrument to which it is a party or by which it is bound, or constitute a
default thereunder; and (c) this Agreement has been duly authorized, executed
and delivered by it and this Agreement is valid, enforceable and binding upon
each Party in accordance with its terms.
14.2 YEAR 2000. XXX.xxx warrants that the TSA Site shall not suffer any material
adverse effect as a result of a failure in any XXX.xxx Work Product or XXX.xxx
Tools to be Y2K Compliant. A product or service which is "Y2K Compliant" is one
that provides accurate results using data having date ranges spanning from
January 1, 1980 through December 31, 2019 ("Y2K Period"). By way of example and
not of limitation, "Y2K Compliant" means, with respect to a product or service,
that it can currently and shall, during the Y2K Period, continue to (a) manage
and manipulate data involving all dates within the Y2K Period (including the
fact that the year
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2000 is a leap year) without functional or data abnormality related to such
dates; (b) manage and manipulate data involving all dates within the Y2K Period
without inaccurate results related to such dates; (c) have user interfaces and
data fields formatted to distinguish between dates within the Y2K Period; and
(d) accurately identify and either reject or correct invalid date data during
the Y2K Period. Provided XXX.xxx otherwise complies with this Article 14.2, it
shall not be liable to Retailer for any failure to perform obligations under
this Agreement to the extent such failure arises from a failure to be Y2K
Compliant that: (i) affects the non-performing party's customers or suppliers;
or (ii) is beyond its reasonable control.
ARTICLE XV
INDEMNIFICATION
15.1 RETAILER. Retailer, at its own cost and expense, shall defend, indemnify
and hold harmless XXX.xxx and any of its officers, directors, employees or
agents from and against any and all actions, claims, proceedings or lawsuits
arising from or related in any way to: (a) any claim that XXX.xxx's use of the
Marks as permitted hereunder and under the LICENSE AGREEMENT, including use of
Retailer's URL and of the name and Xxxx "XxxXxxxxxXxxxxxxxx.xxx" infringes the
trademark, service xxxx, trade dress or trade name rights of any third party in
the U.S., its territories and possessions, Puerto Rico, or Canada, provided,
HOWEVER, that Retailer shall not bear any duty, obligation or liability pursuant
to this Article 15.1 to the extent that, and with respect to which, any use by
XXX.xxx of any of the Marks is in a manner not authorized by this Agreement or
the License Agreement; or (b) from Retailer's gross negligence or willful or
intentional misconduct.
15.2 XXX.XXX. Subject to Article 15.1 above, XXX.xxx, at its own cost and
expense, shall defend, indemnify and hold harmless Retailer and any of its
officers, directors, employees or agents from and against all damages, expenses,
liabilities and other costs (including reasonable attorneys' fees and court
costs) arising: (a) from a claim made by any party (other than Retailer) that is
related in any way to the TSA Site, the E-Commerce Business, On-Line Merchandise
sold or services furnished through the TSA Site, or XXX.xxx's services to
Retailer provided pursuant to this Agreement; or (b) from XXX.xxx's gross
negligence or willful or intentional misconduct.
15.3 Any Party seeking indemnification shall notify the other Party as soon as
possible after such Party seeking indemnification becomes aware of the claim.
Except with respect to infringement claims asserted under 15.1(a) which Retailer
shall have the sole right to defend, the indemnifying Party shall have the right
to defend any claim pursuant to this Article XV. The indemnified Party shall
cooperate with such defense and, at its option, may also defend such claim to
the extent that its interests in any way vary from that of the indemnifying
Party.
ARTICLE XVI
INSURANCE
16.1 XXX.xxx shall, during the Term of this Agreement, maintain the following
insurance coverages as indicated or as required by law, whichever shall be
greater, with insurers in good standing and authorized to do business under the
laws of the State(s) where performance shall occur:
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(a) Comprehensive General Liability, naming Retailer as an additional
insured, including without limitation Contractual Liability and
Products Liability, with broad form property damage and bodily injury
(including Personal Injury) coverage. The minimum limits for each shall
be [*] per occurrence and [*] annual aggregate; and
(b) Workers' Compensation and Employers' Liability with minimum limits
of [*] per accident, [*] disease (each employee) and [*] disease
(policy limit).
Upon Retailer's request, XXX.xxx shall tender to Retailer certificates of
insurance evidencing the coverages required to be maintained by XXX.xxx
hereunder. The certificates must provide that no change or cancellation of
insurance shall be made without thirty (30) days prior written notice to
Retailer.
ARTICLE XVII
TERM AND TERMINATION
17.1 TERM. This Agreement shall commence on the Effective Date and automatically
terminate upon termination of the E-COMMERCE VENTURE AGREEMENT, or terminate
pursuant to Article 17.2 below.
17.2. TERMINATION. This Agreement may be terminated prior to termination of the
E-COMMERCE VENTURE AGREEMENT, as follows:
(a) By either Party if the other Party shall materially breach in the
performance of any of the covenants, terms and conditions of this Agreement and
shall fail to cure such breach within 60 days after receipt of notice in writing
from the terminating Party of such breach, giving reasonable particulars of such
breach and of the intention of the Party serving the notice to terminate this
Agreement unless such breach is cured; PROVIDED, HOWEVER, that if such breach
cannot reasonably be cured within 60 days, no termination shall occur so long as
the Party against which breach has been declared continues to use its best
efforts to cure such breach.
(b) By either Party if the other Party shall be judicially declared
bankrupt or insolvent, make an assignment for the benefit of, or enter into a
compromise with, its creditors; initiate bankruptcy or insolvency proceedings of
any kind or proceedings for the appointment of a receiver, manager, judicial
manager or similar official with respect to it or any of its assets or become a
party to dissolution proceedings; PROVIDED, HOWEVER, that no termination shall
occur if any such action is stayed, dismissed or reversed within 60 days of the
initiation of such action and the other Party provides satisfactory evidence of
the same within such period.
ARTICLE XVIII
NO IMPLIED WARRANTIES; LIMITATIONS UPON LIABILITY
18.1 Neither Party shall be liable to the other party for incidental,
consequential, punitive or exemplary damages arising in connection with this
agreement or the performance, omission of performance or termination hereof,
even if the said Party has been advised of the possibility of
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such damages and without regard to the nature of the claim or the underlying
theory or cause of action (whether in contract, tort or otherwise). Neither
Party makes any representation or warranty to the other except as specifically
set forth herein.
ARTICLE XIX
PROPERTY RIGHTS AND OWNERSHIP
19.1 GENERAL. The TSA Site shall consist of, and shall operate in conjunction
with, multiple elements, all of which are subject to certain Intellectual
Property Rights. The Parties' respective rights with respect to such elements
shall be as set forth below. For purposes of this Agreement, the term
"ownership" shall refer to ownership of all right, title and interest in and to
the respective elements, including, but not limited to, all patent, copyright,
trade secret, trademark and any other similar Intellectual Property Rights
therein, as applicable.
19.2 RETAILER'S URL. Retailer's URL shall be owned solely by Retailer (or its
licensor) and all use by XXX.xxx shall be governed by the LICENSE AGREEMENT.
19.3 THE TSA SITE. The TSA Site shall be owned solely by XXX.xxx. Except with
respect to each whole page of the TSA Site (which XXX.xxx shall own), XXX.xxx
disclaims all right, title and interest, and Retailer shall own all right, title
and interest, in and to all TSA Content and all works derivative of the TSA
Content which are incorporated into the TSA Site, whether such works are
copyright or trademark subject matter or otherwise, and even if such works are
not created by Retailer.
19.4 SOFTWARE. Software developed by GSI for the TSA Site shall be owned solely
by GSI, subject to any authorizations to use and approvals obtained and granted
to XXX.xxx and Retailer.
19.5 XXX.XXX PRODUCTS. As between Retailer and XXX.xxx, XXX.xxx owns the XXX.xxx
Products.
19.6 TSA CONTENT. As between XXX.xxx and Retailer, Retailer owns the TSA
Content. Except for a limited non-exclusive license to use the TSA Content
(subject to the terms of the LICENSE AGREEMENT) solely to perform its
obligations hereunder, this Agreement confers no ownership or other beneficial
interest in TSA Content to XXX.xxx.
ARTICLE XX
MISCELLANEOUS
20.1 DISCONTINUANCE OR REGULATION OF THE INTERNET. Retailer acknowledges and
agrees that the Internet (including without limitation the Web) is a network of
private and public networks, that XXX.xxx has no control over the Internet, and
that XXX.xxx is not liable for the discontinuance of operation of any portion of
the Internet or possible regulation of the Internet which might restrict or
prohibit the operation of the TSA Site.
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20.2 FORCE MAJEURE. In the event that either party is unable to perform any of
its obligations under this Agreement or to enjoy any of its benefits because of
any event beyond the control of the affected party including, but not limited
to, natural disaster, acts of God, actions or decrees of governmental bodies or
failure of communications lines or networks (a "Force Majeure Event"), the party
who has been so affected shall promptly give written notice to the other party
and shall use its best efforts to resume performance. Upon receipt of such
notice, all obligations under this Agreement shall be immediately suspended for
the duration of such Force Majeure Event.
20.3 WAIVER. No delay or failure on the part of any party hereto in exercising
any right, power or privilege under this Agreement shall impair any such right,
power or privilege or be construed as a waiver of any default or any
acquiescence therein. No single or partial exercise of any such right, power or
privilege shall preclude the further exercise of such right, power or privilege,
or the exercise of any other right, power or privilege. No waiver shall be valid
against any party hereto unless made in writing and signed by the party against
whom enforcement of such waiver is sought and then only to the extent expressly
specified.
20.4 PRESS RELEASES. All voluntary public announcements concerning the
transactions contemplated by this Agreement shall be mutually acceptable to both
XXX.xxx and Retailer. Unless required by law, neither XXX.xxx on the one hand,
and/or Retailer on the other hand, shall make any public announcement or issue
any press release concerning the transactions contemplated by this Agreement
without the prior written consent of XXX.xxx or Retailer, respectively. With
respect to any announcement that any of the Parties is required by law to issue,
such Party shall, to the extent possible under the circumstances, review the
necessity for and the contents of the announcement with the other Party before
issuing the announcement; provided, however, if either Party cannot obtain the
consent of the other Party in a timely manner, the Party required to comply with
law may issue the press release or public announcement without obtaining the
consent of the other Party.
20.5 CHOICE OF DELAWARE LAW. This Agreement shall be deemed to have been
executed and delivered in the State of Delaware, and shall be construed,
interpreted and enforced under and in accordance with the internal laws of the
State of Delaware.
20.6 BINDING EFFECT; ASSIGNMENT; XXX.XXX'S USE OF OUTSOURCING PARTNERS. (a) This
Agreement shall be binding upon the Parties hereto, their successors and
permitted assigns and approved Outsourcing Partners. Neither Party may assign
its rights and/or duties under this Agreement without the prior written consent
of the other Party, except as provided below.
(b) Upon written notice to XXX.xxx, Retailer shall have the right to
assign this Agreement to any person or entity which acquires or succeeds to all
or substantially all of Retailer's business or assets
(c) Retailer acknowledges that XXX.xxx shall contract with GSI, Organic
Online, Inc. and Client Logic Corporation as major Outsourcing Partners to
perform certain services hereunder. XXX.xxx represents and warrants to Retailer
that XXX.xxx shall fully comply with the terms of Article 20.6(e) below with
respect to GSI, Organic Online, Inc. and Client Logic Corporation.
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(d) XXX.xxx may employ Outsourcing Partners to perform certain other
services hereunder, provided, however, that for any Outsourcing Partner proposed
by XXX.xxx to perform web site development or fulfillment services, and for any
Outsourcing Partner proposed by XXX.xxx under an agreement which will pay such
Outsourcing Partner over $500,000 in any year,XXX.xxx shall notify Retailer and
obtain its prior written consent with respect to the material terms of
engagement of any such Outsourcing Partner, which consent shall not be
unreasonably withheld.
(e) All Outsourcing Partners must be fully informed by XXX.xxx and
bound in writing and agree (i) to all of the applicable restrictions upon
XXX.xxx hereunder, and (i) to perform all of the applicable obligations of
XXX.xxx with respect to Retailer hereunder, including, without limitation, the
obligations set forth in Articles VIII, X, XI, XII, XV, XVI and XX. Retailer
shall be deemed a third party beneficiary of all such agreements between XXX.xxx
and its Outsourcing Partners, and shall be entitled to enforce such agreements
as against any Outsourcing Partner in its own name and on its own behalf.
Notwithstanding the foregoing, as between Retailer and XXX.xxx, XXX.xxx shall be
responsible for all acts or omissions of any Outsourcing Partner.
20.7 COUNTERPARTS. This Agreement may be signed in several counterparts, each of
which shall be deemed an original, and all of which when taken together, shall
be deemed a complete instrument.
20.8 ENTIRE AGREEMENT. This Agreement, as well as the LICENSE AGREEMENT and the
E-COMMERCE SERVICES Agreement, represent the entire agreement of the Parties
with respect to the subject matter hereof and may not be modified, except in
writing, and executed by all of the Parties hereto. This Agreement supersedes
all prior writings of the Parties with respect to this subject matter.
20.9 NO PARTNERSHIP. The relationship of the Parties herein shall be that of
independent contractors and nothing herein shall be construed to create a joint
venture or partnership.
20.10 HEADINGS. Section headings contained in this Agreement are inserted for
convenience or reference only and shall not be deemed to be a part of this
Agreement for any other purpose.
20.11 NOTICES. Any notices or writings to be sent hereunder shall be in writing
and shall be by personal delivery or facsimile transmission and shall be deemed
given upon the earlier of actual receipt or receipt by sender of confirmation of
facsimile transmission. Notices shall be sent to the following addresses (or
such other address as either party may specify in writing):
if to XXX.xxx: XxxXxxxxxXxxxxxxxx.xxx, Inc.
000 Xxxxx Xxxxxxxxx Xxxx
Xxxx xx Xxxxxxx, Xxxxxxxxxxxx 00000
Attention: President
Fax No.: (000) 000-0000
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copy to: Xxxxx X. Xxxxxx, Esq.
Xxxxx Xxxxx Xxxxxx & Xxxxxxxxx, LLP
The Bellevue
Xxxxx & Xxxxxx Xxxxxxx
0xx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Fax No.: (000) 000-0000
if to Retailer: The Sports Authority, Inc.
0000 Xxxxx Xxxxx Xxxx Xx. 0
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxxxxx, Senior Vice
President, Business Development
Fax No.: (000) 000-0000
copy to: The Sports Authority, Inc.
0000 Xxxxx Xxxxx Xxxx 0
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attention: General Counsel
Fax No.: (000) 000-0000
and to: The Sports Authority Michigan, Inc.
000 Xxxxx Xxxxxxxxxx, Xxxxx 000
Xxxxx Xxx, Xxxxxxxx 00000
Attention: General Counsel
Fax No: (000) 000-0000
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IN WITNESS WHEREOF, the parties have caused their duly authorized
representatives to enter into this Agreement with intent to be legally bound
hereby, the date and year first above written.
XXXXXXXXXXXXXXXXXX.XXX, INC. THE SPORTS AUTHORITY, INC.
By: /S/ XXXXXXX XXXXX By: /S/ XXXXXX X. XXXXXX
---------------------------- ------------------------------
Title: Title:
------------------------- ---------------------------
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ATTACHMENT A
Domain Name: XxxXxxxxxXxxxxxxxx.xxx
Format of Retailer Content : SEE Attachment B
Project Liaisons: For XXX.xxx - Xxxxxxx Xxxxxx For Retailer - Xxxx Xxxxxxx
Feature Set: XXX.xxx, at its own expense, shall create, maintain and operate the
TSA Site for Retailer on the Web in accordance with state of the art computer
software development industry professional standards and with at least the
following functionality:
1. Standard Search
2. Browse Category/Sub-Category/Family/Sub-Family
3. Product Presentation
4. Related Products
5. Product Comparison
6. Shopping Cart
7. Online Checkout with Secure Ordering
8. Email Notification of Orders
9. Order Tracking
10. User Login/Registration
11. User Profile Management
12. Product Bundles/Promotions
13. 24/7 Real Time Customer Service
14. Reporting Tools for Site Performance, Sales and Traffic
15. Affiliate Program Management
16. Store Locator with Mapping
17. Gift Giving Functionality
18. Real-Time Order Processing (including tax and shipping costs configurators)
19. Corporate Information (including financial information and company profile)
20. Employment and Press Areas with remote publishing tools for administration
by Retailer
(Collectively, items 1-20 above describe the "Core Functionality" of the TSA
Site)
MILESTONE DELIVERY SCHEDULE:
Task Estimated Completion Date
Establish Fulfillment Capabilities April 30, 1999
Discovery And Planning June 1, 1999
Commence Engine Engineering July 31, 1999
Alpha Testing August 15, 1999
Retailer Web Site Development August 30, 1999
Quality Control Review And Revisions September 16, 1999
Beta (Soft Launch) September 21, 1999
Web Site Launch To General Public October 1 - December 1,1999
Media And Promotions October 1 - December 1,1999
ATTACHMENT B
ASSET SUBMISSION GUIDELINES
This section details how to submit assets.
SOURCE ASSETS AND FINAL ASSETS
We require source files for all assets. This means if an image is originally
constructed as a layered RGB Photoshop file at 100x500 pixels, we need that
file, even if the final file is a flattened 4-bit GIF at 20x100.
We allow the submission of final assets in some cases, but only by prior
arrangement and only in addition to an up-to-date source file. All submitted
assets are subject to review and verification by production staff.
MEDIA AND FORMAT
We routinely receive assets in the following media and formats:
Digital Media:
Media:
SyQuest 44mb, 88mb, 200mb, CD-ROM (including PhotoCD), Zip, Jaz, 3.5" floppy.
Format:
Xxx00, Xxx-00, or Macintosh
File Formats:
Text: Raw, MS Word 95, RTF, HTML
Bitmap Graphics:
Photoshop, TIFF, PCD (PhotoCD), EPS, PICT (JPEG and GIF for final files only
and only along with source files)
PostScript Graphics:
EPS, Illustrator (7.0 preferred)
Video:
QuickTime
Audio:
WAV, AIFF, MIDI
Non-Digital Media:
Contact us to discuss needs and capabilities before submitting any non-digital
assets.
ASSET SUBMISSION
We prefer to receive assets via FTP (file transfer protocol) although we gladly
accept assets via standard package delivery services (i.e., FedEx, USPS, UPS,
etc.).
Submission via FTP
FTP Area: xxx.xxxxxxxxxxxxxxxxxxxxxxx.xxx
Assets should be left in "Incoming" which is a level below the initial
directory. Once assets have been transferred, e-mail confirmation is required.
Submission via Package Delivery
If you wish to submit assets via standard package delivery services, please
address the package to this address:
Address TBD
If you are submitting hard assets like brochures, photographs, etc. please be
sure to ship them in a reinforced container to prevent damage to the assets
while in transit.
If you are submitting digital media like SyQuests, Zip disks, Jaz disks, etc.,
be sure to ship them in a well-padded, reinforced container.
ATTACHMENT C
TSA Site Performance Standards and Specifications
A. SCHEDULED MAINTENANCE DOWNTIME
In order to keep the TSA site running at optimal efficiency, scheduled downtime
will be used for periodic system maintenance and upgrades. XXX.xxx has a
scheduled maintenance window of 4AM to 6AM EST on Sunday mornings for the TSA
Site. Tracking tickets will be issued to track any maintenance performed during
this time. Tickets are also issued for unscheduled maintenance and downtime.
B. ESCALATION PROCEDURES
If a technical problem occurs with the TSA Site, contact people in the following
order:
FRONTIER GLOBAL CENTER NETWORK OPERATIONS CENTER
1 800 662 3551
XXX.XXX WEB OPERATIONS
Xxx Xxxxxxx (000)000 0000
Xxxxxxx Xxxxx (000) 000 0000
ORGANIC WEB OPERATIONS
Xxxxxx Xxxx (000) 000 0000 pager XXXX-XXXXX@XXXXXXX.XXX
Xxxx Xxx Chin (000) 000 0000 pager XXXX-XXXXXXXX@XXXXXXX.XXX
ORGANIC PROJECT ENGINEER
Xxxx Xxxxxxxx (000) 000 0000 pager XXXX-XXXXXXXX@XXXXXXX.XXX
C. Server Monitoring
1. WEB SERVERS
Web servers will be monitored by continuous pinging to make sure the
machine is alive. The http server will be continuously monitored to
ensure it is serving web pages. The home page will be monitored to
ensure the correct home page is being displayed with no errors. Disk
space on the web servers will be monitored and someone notified if
capacity exceeds a preset level.
2. APPLICATION SERVERS
Application servers will be monitored by continuous pinging to make
sure the machine is alive. Disk space on the application servers will
be monitored and web operations notified if capacity exceeds a preset
level.
3. DATABASE SERVERS
Database servers will be monitored by continuous pinging to make sure
the machine is alive. Disk space on the database servers will be
monitored and someone notified if capacity exceeds a preset level.
Database table space and database extents allocated will be monitored
and web operations notified if capacity exceeds a preset level.
D. REPLACEMENT PARTS
Under the Sun Silver maintenance agreement, replacement parts shall be available
within four (4) hours of reported failure.
E. BACKUPS
Full backups of all machines will be performed every Monday morning beginning at
2AM EST. Incremental backups will be performed every morning except Monday
beginning at 4AM EST.
F. HOSTING ENVIRONMENT
Other than scheduled downtime as described above, XXX.xxx guarantees 99% uptime,
with preset escalation points for outages starting from system degradation and
system interruption and moving to Priority I, II or III. The mean response time
for server response to access the TSA Site shall not exceed more than __ seconds
during any one (1) hour period. Pages will return in 8 seconds or less over a T1
connection on a 28.8Kps modem. The bandwidth representing the TSA Site's
connection to the Internet shall be no less than a ____ connection, and shall be
operating at capacity no more than __ minutes in any 24 hour period.
G. SECURITY
Since the TSA Site is an electronic commerce web site, security is a primary
concern. XXX.xxx shall operate and maintain the TSA Site's servers at a locked
and secured location and shall prevent unauthorized access to the same, and any
databases or other sensitive material generated from or used in conjunction with
the TSA Site. XXX.xxx shall promptly notify Retailer of any known security
breaches or holes. A Solaris platform will be used to keep the web site system
as secure as possible. Solaris allows easy removal of nonessential services.
Solaris allows administrative access to the servers to be restricted by a secure
shell or direct terminal connection. Solaris allows auditing of access to the
system. Solaris allows software that performs a single use password system.
Credit card and other sensitive data will be encrypted before being transmitted.
In addition to securing the individual servers used in the system, a firewall
will be used.
H. DESIGN REQUIREMENTS
Standard Viewable Area: 615x500
Monitor Resolution: 800x600 and greater
Maximum Page Size: 50k, no page exceeding 80k
Connection Speed: 28.8 Kbps and greater
Graphic Formats: GIF89a, JPEG, plus a TBD enhanced
image format
Interactive Elements: HTML, JavaScript, CSS, Dynamo, dHTML
I. SUPPORTED BROWSER ENVIRONMENTS
This list below shows which browser/platform/OS combinations, based on research
conducted by GSI, will provide full functionality for the GSI Common Engine and
the TSA Site. The list below should cover approximately 95% of all browsers.
Users without Netscape 4 (or higher) or Internet Explorer 4 (or higher) will be
directed to a page informing them how to download the necessary browser.
Additionally, since JavaScript is required to view the site, users who have
disabled JavaScript will be directed to a page telling them how to enable it.
This list also serves as the list of browsers with which the site will be tested
during the quality assurance phase of the project-preceding launch.
BROWSER VERSION PLATFORM OS VERSION
Netscape Navigator 4.0.x Windows 95,98,NT 4.0
MS Internet Explorer 4.x Windows 95,98,NT 4.0
Netscape Navigator 4.0.x Macintosh MacOS 7.x.x and up
MS Internet Explorer 4.x Macintosh MacOS 7.x.x and up
J. FULFILLMENT, CUSTOMER SERVICE
1. TELEPHONE SERVICE
On a monthly basis, XXX.xxx shall provide the following service levels:
/bullet/ Abandoned calls not to exceed 2% of total calls.
/bullet/ Average speed of answer shall not exceed 20 seconds.
/bullet/ Calls delayed shall not exceed 20%.
2. SHIPMENT SERVICE TIME
XXX.xxx shall use its best efforts to make all shipments of merchandise
to Customers according to the following schedule:
/bullet/ 100% by the end of the Business Day following date of receipt
(orders received after 3PM count as next day).
/bullet/ Balance by the end of the second Business Day following the
date of receipt.
/bullet/ Preferential orders and Federal Express (or other express
courier service) orders will be shipped on the day received.
3. CUSTOMER RETURNS, REQUESTS FOR INFORMATION
XXX.xxx shall process all Customer returns within three (3) Business
Days of receipt. XXX.xxx shall respond to requests for information
Customers for UPS call tags (or the like) and Customer returns within
three (3) Business Days of receipt. Similarly, XXX.xxx shall respond to
requests from Customers regarding shipment confirmation or other
matters within three (3) Business Days of receipt, except that serious
problems shall be responded to within 24 hours.
K. REPORTING
XXX.xxx shall provide monthly reports (or more frequent) to Retailer by the 15th
of each month, which:
/bullet/ Track and monitor maintenance and downtime of the TSA Site;
/bullet/ Track and monitor the metrics set forth above in items C, E, F
and J;
/bullet/ Track and monitor such information as original order number,
order date, reason for Customer contact, and resolution; and
/bullet/ For e-mail, elapsed time from Customer send time/date to
XXX.xxx response time/date.
