EXHIBIT 10.34
MARKETING AGREEMENT
BETWEEN
4imprint Inc. AND Xxxxxxxxx.xxx, Inc.
This agreement (hereinafter the "Agreement") is made and entered into on July 5,
2000, by and between 4imprint, Inc., a Wisconsin corporation located at 000
Xxxxxxxx Xxxxxx, Xxxxxxx XX 00000 (hereinafter "4imprint"), and Xxxxxxxxx.xxx,
Inc. a Delaware corporation located at 00000 Xxxx Xxxxx Xxxxx, Xxx Xxxxx,
Xxxxxxxxxx, 00000 (hereinafter "the company").
Whereas, 4imprint owns all right, title, and interest to the technology and all
content that make up the Web site located at xxx.0xxxxxxx.xxx including any
space available for advertising or other independent revenue producing
mechanisms.
Whereas, 4imprint a provider of imprinted promotional products and proprietary
branded order sites, maintains an Internet site that allows users to order
custom printed products.
Whereas, the company desires to enter into a non-exclusive, non-transferable,
business relationship for their Web site called xxxxxxxxx.xxx and located at
xxx.xxxxxxxxx.xxx in order to link to the 4imprint Web site.
NOW THEREFORE, in consideration of the foregoing and of the mutual undertakings
hereinafter set forth, the parties hereto agree as follows:
1. SCOPE OF SERVICES. 4imprint shall make their site available to the company's
Web site visitors via graphical hyperlink and shall provide a unique URL for the
link to the company's website. 4imprint shall design and maintain a website co
branded with 4imprint's and the company's marks that shall contain all products
and services currently offered by 4imprint. 4imprint will add new products to
the website, at 4imprint's discretion, as they are developed. Product pricing on
the site will always be equal to or better than the pricing offered on
4imprint's dedicated site. The website will be designed as an interstitial
window. 4imprint shall create, maintain, and manage all aspects of the website
operation, including the software and hardware environment, connection to an
Internet Provider, and customer service and support for handling end-user
questions and issues directly associated with the custom store-front and jobs
processed by 4imprint subject to the terms of this Agreement.
2. LICENSES. Each Party grants to the other a limited non-exclusive,
non-transferable license to use each other's tradenames, trademarks, logos and
service marks (collectively "Marks") in connection with the performance of this
agreement. Neither party shall use any of the other Party's Marks for any
purpose without first obtaining the advance written consent of the party whose
Marks are to be used prior to each specific use. Each Party acknowledges that it
retains ownership of all of its Marks and other intellectual property rights.
4imprint also grants the company during the term of this Agreement, a
royalty-free, non-exclusive license to establish the hyperlink(s) between the
Parties' Web Sites. 4imprint's Marks are to be used solely for the purpose of
indicating the location of the hyperlinks and in connection with the marketing
and promotion of the hyperlinks.
3. PROMOTION. The company agrees to promote the 4imprint site with prominent
placement on their Web site in the following areas:
ePromotions section of the Xxxxxxxxx.xxx website
The company also agrees to include 4imprint in online and offline promotions as
applicable
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4. ORDER PROCESSING. 4imprint will process orders placed by customers who follow
special links from the company's site to the 4imprint site. 4imprint reserves
the right to reject orders that do not comply with any requirements that
4imprint periodically may establish. 4imprint will be responsible for all
aspects of order processing and fulfillment. Among other things, 4imprint will
process payments, cancellations, and returns; and handle customer service.
4imprint will track sales made to customers who purchase products at their
website.
5. COMPENSATION. 4imprint will track all unique orders placed through the
4imprint site link from the company's site and will pay to the company a monthly
commission equal to 10 percent (10%) of 4imprint's revenue on shipped orders
from the site during the month, net of any sales taxes, shipping, refunds,
reprints, and returns. No commissions will be paid on free or loss leader
offers, art make-ready charges, or on other services that do not have an
established retail price. The monthly commission will be paid within 10 days of
the end of 4imprint's month.
6. TERM AND TERMINATION. The term of this Agreement shall commence on the date
above and continue for twelve (12) months. This Agreement shall automatically be
renewed for successive twelve (12) month periods. Upon termination, commission
tracking will be discontinued. Final payment on orders prior to termination date
will be made within thirty (30) days of such termination.
a. TERMINATION FOR CAUSE. Either party can terminate the Agreement with
thirty (30) days written notice in the event that there is a
material breach of warranties or obligations in this agreement by
the other party. Either party shall be able to terminate this
Agreement by giving the other party ten (10) days written notice in
the event that the other party shall become insolvent, shall make
assignment for the benefit of creditors, or shall have a petition in
bankruptcy filed for or against it.
b. TERMINATION FOR CONVENIENCE. Either party can terminate the Agreement
at any time with thirty (30) days written notice.
7. PERFORMANCE. Each Party shall provide the same level of online service for
each other as it does for its own site which may include periods of shutdown
caused by equipment, system or power failure, or other causes that would result
in the site being "down" that are beyond the control of either party.
8. SECURITY. Both parties shall take all commercially reasonable security
measures to ensure that each site and its servers are secure from unauthorized
access and use and are virus free.
9. PRESS RELEASES. Within three (3) weeks after the execution of this Agreement,
the Parties may agree to issue a joint press release about the general nature of
this Agreement. If the Parties decide not to issue a joint release, 4imprint may
at its option, publicize information about and/or issue a press release
concerning the general nature of this Agreement. Neither Party shall make any
press release concerning this Agreement without first obtaining the written
consent of the other Party, which consent shall not be unreasonably withheld or
delayed.
10. CONFIDENTIALITY AND NON-DISCLOSURE.
a. In the performance of this Agreement, 4imprint and the company may
obtain or develop certain information, which is considered by either to
be proprietary and confidential, is designated in written form as
confidential, which is not generally known other than by 4imprint or
the company and which provides commercial advantage to 4imprint or the
company. Confidential information shall not include information that
(i) is now or later becomes generally known to the public (other than
as a result of a breach of this Agreement); (ii) is independently
developed by 4imprint or the company; (iii) 4imprint or the company
lawfully obtains from any third Party who has lawfully obtained such
information; or (iv) is later published or generally disclosed to the
public by 4imprint or the company. 4imprint or the company shall bear
the burden of showing that any of the foregoing exclusions applies to
any information or materials. 4imprint or the company shall not,
without the other Party's prior written permission, use for any
purposes, unless it is in connection with this Agreement, or reveal or
make available to any person any proprietary or confidential
information or trade secrets. 4imprint and the company shall limit
access to proprietary information to those employees and agents to whom
disclosure is necessary for the performance of this Agreement.
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b. Neither Party shall disclose the terms of this Agreement or business,
financial, technical, pricing or other information about the other
Party that the other Party has made known is or would be understood by
a reasonable business person to be of a confidential nature.
11. DATA COLLECTION AND PRIVACY. The company certifies that if Usage statistics
have been collected, it does not reasonably anticipate that the Usage Statistics
shall be used as a factor in establishing any consumer's eligibility for (a)
credit or insurance used primarily for personal, family, or household purposes,
(b) employment purposes, or (c) other purposes authorized under Section 604 of
the Fair Credit Reporting Act. 4imprint and the company agree that the Usage
Statistics are not intended to be a consumer report as used in such Act and that
either Party may terminate this Agreement if the Usage Statistics are deemed to
be such a consumer report.
12. CUSTOMER DATA. 4imprint owns the names and information for all customers who
place orders at the 4imprint website. 4imprint will provide to the company
monthly statements of customer traffic, order volumes, and other relevant
operational and usage information regarding transactions.
13. WARRANTIES; DISCLAIMER.
a. WARRANTIES. Each Party represents and warrants to the other that (a)
such Party has the full corporate right and authority to enter into
this Agreement and to perform the acts required of it hereunder; (b)
the execution of this Agreement by such Party and the performance by
such Party of its obligations and duties hereunder do not and shall not
violate any Agreement to which such Party is a Party or by which it is
otherwise bound; (c) when executed and delivered by such Party, this
Agreement shall constitute the legal, valid, and binding obligation of
such Party, enforceable against such Party according to its terms; and
(d) such Party acknowledges that the other Party makes no
representations, warranties, or Agreements related to the subject
matter hereof that are not expressly specified in this Agreement.
b. DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH HEREIN, NEITHER PARTY MAKES
ANY, AND EACH PARTY EXPRESSLY DISCLAIMS ALL, WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
14. INDEMNIFICATION. Each Party agrees to indemnify and hold harmless the other
Party and the officers, directors, agents, affiliates, distributors, franchisees
and employees of the other Party from and against any and all actions, causes of
action, claims, demands, costs, liabilities, damages, costs and expenses
(including reasonable attorneys' fees) arising out of or related to the other
Party's representations, warranties, or other obligations under this Agreement.
15. LIMITATION OF LIABILITY. In no event shall either Party be liable for
incidental, indirect, special, or consequential damages (even if it has
previously been advised of the possibility of such damages), arising from any
provision of this Agreement, such as, but not limited to, loss of revenue or
anticipated products' profits of lost business.
16. GENERAL.
a. ASSIGNMENT. The company may not assign this Agreement, either
expressly or by operation of law, to any other person, firm, or
corporation, and any such attempted assignment or transfer, without
the written approval of 4imprint, shall cause this Agreement to be
null and void. Notwithstanding the preceding, this Agreement shall
inure to the benefit of and shall be binding upon the Parties hereto
and their respective successors and assigns.
B. NOTICES. All notices and demands hereunder shall be in writing and
shall be served by personal service or by mail at the address of the
receiving Party specified below (or at such different address as may
be designated by such Party by written notice to the other Party).
All notices or demands by mail shall be by certified or
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registered mail, return receipt requested, or by nationally recognized private
express courier, and shall be deemed complete upon receipt.
If to 4imprint:
Xxxxxxx Xxxxxx
4imprint
000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
If to the company:
Mr. Xxx Xxxxx, President
Xxxxxxxxx.xxx
00000 Xxxx Xxxxx Xxxxx
Xxx Xxxxx, XX. 00000
c. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the substantive laws of the State of Wisconsin.
d. RELATIONSHIP OF THE PARTIES. Each Party is acting as an independent
contractor and not as an agent, or joint venturer with the other
Party for any purpose. Except as provided in this Agreement, neither
Party shall have any right, power, or authority to act or to create
any obligation, express or implied, on behalf of the other. Nothing
contained in this Agreement, except as specified, shall be construed
as creating any obligations or an expectation on the part of either
Party to refrain from entering into any other business relationship
with any third party.
e. FORCE MAJEURE. Neither Party shall be responsible for delays or
failure of performance resulting from acts beyond the reasonable
control of such Party. Such acts shall include, but not be limited
to, acts of God, strikes, walkouts, riots, acts of war, epidemics,
failure of suppliers to perform, uncontrollable network
occurrences, governmental regulations, power failures, earthquakes,
or other disasters.
f. SURVIVAL OF CERTAIN PROVISIONS. The indemnification obligations set
forth in the Agreement shall survive the termination of the
Agreement by either Party for any reason.
g. HEADINGS. The titles and headings of the various sections and
paragraphs in this Agreement are intended solely for reference and
are not intended for any other purpose whatsoever or to explain,
modify, or place any construction on any of the provisions of this
Agreement.
h. ALL AMENDMENTS IN WRITING. This Agreement together with the Exhibits
hereto is intended to be the full and complete statement of the
obligations and rights of the Parties relating to the subject matter
hereof and supersedes all previous agreements, understandings,
negotiations, and proposals as to this Agreement. No supplement,
modification, or amendment of this Agreement shall be binding,
unless executed in writing by a duly authorized representative of
each Party to this Agreement.
i. ENTIRE AGREEMENT. The Parties have read this Agreement and its'
Exhibits and agree to be bound by its terms, and further agree that
it constitutes the complete and entire Agreement of the Parties and
supersedes all previous communications, oral or written, between
them relating to the license and to the subject matter hereof. No
representations or statements of any kind made by either Party that
are not expressly stated herein shall be binding on such Party.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
For the company: 4imprint:
By: Xxx Xxxxx By: Xxxxxxx X. Xxxx
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Signature: /s/ Xxx Xxxxx Signature: /s/ Xxxxxxx X. Xxxx
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Title: President Title: VP Marketing
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Date: 7/5/00 Date: 7/6/00
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