Exhibit 10.38
AGREEMENT FOR STREAMLINE, INC. FLOWERS & GIFTS SERVICE
This Agreement is entered into this 26th day of January, 1999 by and between PC
Flowers & Gifts, Inc., a Delaware Corporation, doing business at 0000 Xxxx Xxxx
Xxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxxxxx 00000 (PC) and Streamline Inc., a
Corporation, doing business at 00 Xxxxxxxxx Xxxxxx, Xxxxxxxx, XX 00000.
DEFINITIONS:
"Order" shall mean any order for a Product placed through the Streamline, Inc.
Flowers & Gifts service by consumers who win view and utilize the Streamline,
Inc. Flowers & Gifts service and will consider the Service as part of the
Streamline, Inc. content and the 1-800 PC FLOWERS toll free service which will
also be utilized.
"Product" shall mean any flowers, balloons, specialty foods, jewelry, cosmetics,
personalized throws or any other items chosen by PC and Streamline, Inc. to be
offered on the Streamline, Inc. Flowers & Gifts service.
"Net Sales Price" ("NSP") shall mean PCs suggested retail price of any Product
sold through the Streamline, Inc. Flowers & Gifts service, less applicable sales
tax, service charge, discounts, credits or returns for each Order.
"Proprietary Xxxx" shall mean any trademark, service xxxx, trade name or design
logo of either Streamline, Inc. or PC.
The Streamline, Inc. Flowers & Gifts service shall mean a service which is
offered by Streamline, Inc. as an integral part of Streamline, Inc.'s content to
its customers to enable a customer to gain access to and purchase Products from
the Streamline, Inc. Flowers & Gifts service. The service will also be available
to Streamline, Inc. customers through the 1-800 PC FLOWERS telemarketing
program.
1. RESPONSIBILITIES OF THE PARTIES
PC RESPONSIBILITIES
a. PC will develop and maintain a "co-branded" Streamline, Inc.
Flower & Gifts service in active server page format. The
entire flowers and gifts service will reside on PC's web
servers. When a Streamline, Inc. customer enters the
Streamline, Inc. Flower & Gifts service to review the content
and ultimately to place an
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order, they will be seamlessly transported to the PC Flowers &
Gifts web servers.
Product Categories Streamline. Inc. Sales Commission
---------------------------------
Flowers shipped directly from growers
to the Streamline, Inc. consumer ...........................................................8%
Flowers delivered through PC Flowers, &
Gifts' network of the retail florist (PC Net)..............................................8%
Balloons delivered through PC Flowers &
Gifts' network of retail florists (PC Net) .................................................8%
Gourmet foods & gift baskets.....................................................................8%
Jewelry .........................................................................................8%
Cosmetics .......................................................................................8%
*ALL COMMISSIONS ARE EXCLUSIVE (?F APPLICABLE SALES TAX, SHIPPING AND HANDLING
CHARGES, CREDITS, DISCOUNTS, AND/OR RETURNS FOR EACH ORDER.
b. PC will update the home page and the Holiday Products for the
Streamline, Inc. Flowers & Gifts service on a monthly basis in order to
take advantage of the event driven nature of the floral and gift
business and help Streamline, Inc. to increase traffic and gain a
promotional opportunity on a monthly basis.
c. PC Will utilize a proprietary technical program to track all orders
placed on the Streamline, Inc. Flowers & Gifts service.
d. PC shall at all times keep an accurate and auditable account of the
Orders subject to this Agreement and shall render to Streamline, Inc.
monthly statements containing the number of visitors which originate
from the-PC Flowers & Gifts site at Streamline, Inc., the product
ordered and the total sales price less the service charge and
applicable sales tax. PC shall retain such records for a period of one
(1) year following the date of each order subject to this Agreement.
Streamline, Inc. shall have the right to audit such accounts up to two
(2) times during the year.
e. PC shall abide by all applicable portions of the Direct Marketing
Association's then current Guidelines for Ethical Business Practices,
and all Federal, State and local laws and regulations, applicable to
any advertisements, promotions or offers made by PC on the Streamline,
Inc. Flowers & Gifts service.
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STREAMLINE, INC. RESPONSIBILITIES:
a. Streamline, Inc. will include the Streamline, Inc. Flowers & Gifts
service as an integral pan of its content and promote the Service on a
monthly basis in order to take advantage of the event-driven nature of
the flower and gift business.
b. Streamline, Inc. will include a reference to the availability of the
Streamline, Inc. Flowers & Gifts service on the Streamline, Inc. web
site and through the 1-800 PC FLOWERS phone number whenever possible on
promotional print materials in order to enable Streamline, Inc.
customers to order PC Flowers & Gifts flowers and gift products through
the Streamline, Inc. Flowers & Gifts service on the Streamline, Inc.
web site and through the 1-800 PC FLOWERS phone number.
2. USE OF PC FLOWERS & GIFTS CONTENT AND TECHNOLOGY ON THE STREAMLINE,
INC. FLOWERS & GIFTS SERVICE.
PC hereby grants Streamline, Inc. a non-exclusive, paid-up,
royalty-free, perpetual, worldwide license to use, distribute, perform,
exhibit, reproduce, publish, display and prepare derivative works of,
PC Materials as necessary and approved by PC to fulfill the rights and
obligation of Streamline, Inc. under this Agreement, including without
limitation the right to display the Streamline, Inc. Flowers & Gifts
service home page and seamlessly direct customers to the PC Flowers &
Gifts Silicon Graphic web servers for review of the content of the
Streamline, Inc. Flowers & Gifts service and to place orders on the
Service.
PC shall have the responsibility for determining the adequacy and
acceptability of the Streamline, Inc. Flowers & Gifts service.
PC shall retain all right, title and interest, including ownership of
copyright, for all programs, program listings, programming tools,
documentation, drawings and reports developed hereunder by PC or its
affiliates.
3. PC REPRESENTS AND WARRANTS
PC represents and warrants that it has the full right, title and
authority to grant Streamline, Inc. the rights and licenses herein
granted.
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PC warrants that it is and will remain free of any obligations and
restrictions that would interfere or be inconsistent with, or present a
conflict of interest concerning the services to be furnished by it
under this Agreement.
PC represents and warrants that the Products which will be offered on
the Streamline, Inc. Flowers & Gifts Service will comply with all
applicable governmental regulations, rules and guidelines.
4. CHARGES AND PAYMENTS
PC will remit to Streamline, Inc., within twenty (20) days after the
end of each calendar month, a report of all sales activities from the
PC Flowers and Gifts Service for the previous month and a quarterly
payment equal to the percent listed on paragraph 1, page 2 of PC
Responsibilities. This quarterly payment shall hereinafter be referred
to as the "royalty payment". Royalty payments less than $50.00 will be
rolled into the next quarter.
5. INDEMNIFICATION
PC shall indemnify, defend and hold Streamline, Inc. harmless against
any claim, action, liability, losses, and expenses (including
reasonable attorneys' fees) relating to or arising out of any Product
offered by, or ordered or requested from PC by means of the Streamline,
Inc. Flowers & Gifts service.
PC assumes all responsibility for the content and subject matter of
PC's Commerce Service screens and related material (including text and
illustrations), and shall indemnify, defend and hold Streamline, Inc.
harmless against any claim, action, liability, losses, and expenses
(including reasonable attorneys' fees) resulting from. or arising out
of Streamline, Inc.'s use of such Material under this Agreement or
Streamline, Inc. 's performance hereunder.
6. LIMITATION OF LIABILITY
a. Streamline, Inc. will have no liability for failure for any
reason to direct Streamline, Inc. consumers to the PC Flowers
& Gifts web server, for the unavailability of the Streamline,
Inc. Flowers & Gifts service, for the adequacy of performance
of the Streamline, Inc. Flowers & Gifts service.
b. PC will have no liability for failure for any reason for the
unavailability of the Streamline, Inc. Flowers & Gifts Service
or
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for the adequacy of performance of the Streamline, Inc.
Flowers & Gifts Service.
7. TERM AND TERMINATION
a. The period during which this Agreement will be in effect (the
"Term") begins on the date set forth in the opening paragraph
hereof and shall end on the date which is one (1) year from
the date. The term will be deemed extended for additional
one-year periods by mutual consent unless and until either
party gives notice to the other party that the party giving
notice elects not to extend the Term not less than thirty (30)
days before the otherwise applicable end date.
b. Streamline, Inc. may terminate this Agreement immediately if
PC breaches any material term hereof and breach is not
corrected by PC within thirty (30) days after receipt of
written notification by Streamline, Inc.. PC may terminate
this Agreement if Streamline, Inc. breaches any material term
hereof and breach is not corrected by Streamline, Inc. within
thirty (30) days after receipt of written notification by PC.
8. GENERAL
Streamline, Inc. accepts any PC Material intended for use in connection
with the Streamline, Inc. Flowers & Gifts service only upon the
representation that PC has the right (including all necessary content)
to publish the entire content and subject matter thereof Submission
(including electronic transmission) of material for display on the
Streamline, Inc. Flowers & Gifts service constitutes consent to
display.
Streamline, Inc. reserves the right to reject any material submitted
from PC for any reason at any time, regardless of any prior acceptance
or display of any such material.
Governing Law. The final Agreement shall be governed by and construed
and enforced in accordance with the substantive laws of the State of
New York.
If any provision of this Agreement shall be found by a court of
competent jurisdiction to be invalid or unenforceable, such finding
shall not affect the validity or enforceability of this Agreement as a
whole or of any other part of this Agreement. Any such provision shall
be enforced to the maximum extent permissible. In the event such
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provision is considered an essential element of this Agreement, PC and
Streamline, Inc. agree to promptly negotiate a replacement thereof.
All notices and other official communications under this Agreement
shall be in writing and addressed as follows for each of the parties:
For PC: Xxxxxx X. Xxxxxxx, EVP
PC Flowers & Gifts, Inc.
0000 Xxxx Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxxxxx 00000
For Streamline, Inc.:
Xxxxxxx X. XxXxxxx
Chairman and CEO
Streamline, Inc.
00 Xxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Notices shall be effective upon receipt.
All terms of this Agreement which by their nature extend beyond its
termination remain in effect until fulfilled, and apply to respective
successors and assigns.
PC shall not sell, transfer, assign, or subcontract any right or
obligation hereunder without the prior written consent of Streamline,
Inc. Streamline, Inc. shall not sell, transfer, assign, or subcontract
any right or obligation hereunder without the prior written consent of
PC.
No failure to enforce any provision, assert any right, or insist on
performance of any obligation under this Agreement in any instance
shall be deemed a waiver of the ability to enforce such provision,
assert such right, or insist on the performance of such obligations in
the future. No course of dealing or informal communication of any kind
shall be deemed to amend this Agreement. This Agreement will be the
only agreement between PC and Streamline, Inc., and will supersede all
other Agreements relating to the Streamline, Inc. Flowers & Gifts
service. This Agreement may be amended only by mutual written amendment
signed by both PC and Streamline, Inc.
No terms or provisions under this Agreement shall be deemed waived and
no breach excused, unless such waiver or consent shall be in writing
and signed by the party claimed to have waived or consented. Any
consent by any party to, or waiver of, a breach by the other,
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whether expressed or implied, shall not constitute a consent to or
waiver of, or excuse for any other different or subsequent breach.
The provisions of this Agreement set forth the entire agreement and
understanding between PC and Streamline, Inc. as to the subject matter
hereof and supersedes all prior agreements, oral or written, and all
other communications between PC and Streamline, Inc. relating to the
subject matter hereof.
This Agreement may be executed in counterparts, each of which shall
constitute an original but all of which, when taken together, shall
constitute one agreement, and shall become effective when one or more
such counterparts have been signed by each of the parties and delivered
to the other party.
The parties of this Agreement are independent contractors. No agency,
partnership, joint venture or similar relationship is established
hereby. Neither party has the authority to bind the other or incur any
obligation on behalf of the other.
This Agreement may be executed and delivered by facsimile or Email and
in counterparts, and shall be considered as original and whole if so
executed and delivered.
This Agreement is Accepted by:
Streamline, Inc. PC Flowers & Gifts, Inc.
By: /s/ Xxxxxxx X. XxXxxxx By: /s/ Xxxxxx X. Xxxxxxx
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Hereunto Duly Authorized Hereunto Duly Authorized
Name: Xxxxxxx X. XxXxxxx Xxxxxx X. Xxxxxxx,
Chairman and Ceo Executive Vice President
