SHOPSITE DISTRIBUTOR AGREEMENT - [Certified Hosting Partner]
AGREEMENT
Covering ShopSite (tm) v3.3 Family of Products
This Agreement is by and between Open Market, Inc., a Delaware corporation with
a place of business at Xxx Xxxxxxx Xxxx, Xxxxxxxxxx, XX 00000 ("OPEN MARKET"),
and the following Distributor:
Company Name: FlashNet Communications, Inc.
Attn: Xxxxx Xxxxxx, President
Address: 0000 X. Xxxxxx Xxxx Xxxx.
Phone: 817/000-0000
Fax: 817/000-0000
Email: xxxxx@xxxxx.xxx
URL: xxx.xxxxx.xxx
WHEREAS, OPEN MARKET developed and owns the store creation and management
software known as "ShopSite v3.3" (the "Licensed Software"), which enables a
user to build commercial Internet storefronts for Merchants (as defined below);
and
WHEREAS, the term, "Web Designer, and/or Merchant," as used in this Agreement,
means a person or entity who is granted a license in accordance with this
Agreement and the Merchant License to access Distributor's Internet server(s) to
license, build, and/or maintain a Licensed Storefront (as defined below) using
the Licensed Software; and
WHEREAS, the term "Licensed Storefront," as used in this Agreement, means an
Internet storefront (as defined below) created and maintained by a Web Designer
or Merchant on Distributor's Internet server(s) pursuant to a license granted in
accordance with this Agreement, for the purpose of marketing and selling to
Shoppers (as defined below) a product or service or a group of related products
and/or services offered by the Merchant; and
WHEREAS, the term "Shopper," as used in this Agreement, means any person or
entity who accesses Distributor's Internet server to browse, view, shop, or
otherwise use a Merchant's Licensed Storefront and the term "storefront" shall
be defined as an Internet site that directs orders to a single location (for
example, an email address or a fax number); PROVIDED, that, if multiple
merchants are to be selling products on a single site where each merchant
requires separate order delivery destinations, then each merchant must have a
separate storefront; and
WHEREAS, OPEN MARKET desires to grant the nonexclusive rights to Distributor to
market, distribute and license the Software to provide Licensed Storefronts to
Merchants, and Distributor desires to accept such rights on the terms set out in
this Agreement.
THEREFORE, in consideration of the foregoing and of the mutual agreements set
out below, the parties hereby agree as follows:
SECTION 1. APPOINTMENT.
1.1 NON EXCLUSIVE DISTRIBUTOR. OPEN MARKET hereby appoints Distributor as a
nonexclusive distributor of the Licensed Software, and Distributor hereby
accepts such appointment. Under this Agreement, Distributor shall have the
right to market, distribute, and license the Licensed Software to Web Designers
and/or Merchants, but only on terms protective of OPEN MARKET'S proprietary in
the Licensed Software.
1.2 SCOPE OF LICENSE AND RESTRICTIONS. The rights granted to Distributor in
connection with its appointment as a distributor under this Agreement are: (i)
to permit Web Designers and/or Merchants to use the Licensed Software to create
and maintain Licensed Storefronts on Distributor's internet server(s) and (ii)
to use the Licensed Software in connection with Licensed Storefronts, subject to
the following restrictions and limitations:
(a) the Licensed Software may not be reverse engineered, decompiled,
disassembled, modified, adapted, translated, or used for derivative works, by
Distributor, a Web Designer, a Merchant or any other person or entity controlled
by Distributor.
(b) each license granted by Distributor shall be valid for only one (1)
Licensed Storefront. If the Licensed Software ceases to be used by a Merchant or
in connection with a Licensed Storefront for any reason, Distributor shall not
have the right to resell the same copy of the Licensed Storefront to another
Merchant to use for another Storefront.
(c) Distributor will receive the object code version of the Licensed Software
and is not entitled to have access to the source code therefor.
1.3 CHANGES IN LICENSED SOFTWARE. OPEN MARKET shall have the right at any time
and from time to time, in its sole discretion, to change the design,
capabilities, or other characteristics of any Licensed Software. If OPEN MARKET
discontinues the production or marketing of any Licensed Software, OPEN MARKET
will give 60 days prior notice to Distributor.
1.4 LICENSE TERMS TO WEB DESIGNERS OR MERCHANTS. Distributor shall provide the
Licensed Software to Web Designers or Merchants only under the terms of a
license
CHP.AGREEMENT - PAGE 2 - 1/98.3.3
agreement that includes provisions that are legally sufficient to (i)
notify the Web Designers or Merchant that the Licensed Software is protected by
copyright, (ii) notify the Web Designer or Merchant that the Licensed Software
is being licensed (not sold) and that ownership is not being transferred, (iii)
prohibit copying or transfer of the Licensed Software, (iv) restrict use of the
Licensed Software as provided in Section 1.2 of this Agreement, (v) disclaim all
warranties by OPEN MARKET with respect to the use of the Licensed Software,
including but not limited to any warranties of merchantability, fitness for a
particular purpose, or warranties arising from usage of trade or course of
dealing, and (vi) disclaim any liability of OPEN MARKET related to the Licensed
Software. In no event, however, does Distributor offer any assurances to Open
Market that such provisions will prohibit Web Designers or Merchants from
violating the provisions hereof.
1.5 UPGRADES. This Agreement applies only to the version of the Licensed
Software indicated in the preamble. OPEN MARKET may provide upgrades and/or
enhancements of the Licensed Software to Distributor from time to time, subject
to the payment of an upgrade license fee or pursuant to a separate maintenance
agreement, but it shall have no obligation to do so. Upgrades and enhancements
to the Licensed Software that are provided to Distributor shall automatically be
deemed included in the Licensed Software unless OPEN MARKET notifies Distributor
otherwise.
SECTION 2. DISTRIBUTOR'S DUTIES.
2.1 OBLIGATIONS RELATING TO WEB DESIGNERS OR MERCHANTS. Distributor shall be
solely responsible for marketing the Licensed Software to Web Designers or
Merchants and for providing any technical assistance, service, or support that
may be offered to Web Designers or Merchants relating to the Licensed Software.
Distributor may, however, refer Web Designers or Merchants to OPEN MARKET's
website.
2.2 TECHNICAL AND SALES CAPABILITIES. Distributor shall at all times during the
term of this Agreement, at its expense, endeavor (i) to provide technical
assistance, service, and support to Web Designers or Merchants, (ii) to explain
to Web Designers or Merchants the features and capabilities of the Licensed
Software, and (iii) to carry out its obligations under this Agreement.
2.3 MARKETING PLAN. Distributor shall be responsible for developing and
implementing its own marketing plan and system for distributing the Licensed
Software.
2.4 MARKETING PRACTICES. Distributor shall at all times conduct its business in
a manner that reflects favorably on the Licensed Software and upon OPEN MARKET'S
good name, goodwill, and reputation. Distributor shall not intentionally engage
in any deceptive, misleading, or unethical practices that may be detrimental to
OPEN MARKET.
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2.5 LICENSED SOFTWARE LITERATURE/WEB MATERIALS. Distributor shall have the
right to copy and use content from OPEN MARKET'S web page (xxx.XXXX XXXXXX.xxx)
in any web-based or printed marketing materials; provided that Distributor shall
use reasonable efforts to notify OPEN MARKET of all such uses and shall comply
with reasonable requests of OPEN MARKET relating to Distributor's use of the
content. As an authorized Distributor, Distributor does not have the right to
use the OPEN MARKET in their URL nor OPEN MARKET logo or trademarks on their
pages. OPEN MARKET encourages Distributor to the use the ShopSite product logo
in any marketing material in support of the sell and promotion of the Licensed
Software.
2.6 COMPLIANCE WITH LAWS. Distributor shall conduct its business in
compliance with all applicable laws and regulations in any way related to the
Licensed Software and to the performance of Distributor's and OPEN MARKET'S
respective duties under this Agreement. Without limiting the generality of
the foregoing, Distributor and OPEN MARKET shall not distribute or license
any Licensed Software in violation of any United States law relating to the
export or re-export of goods or technical information, including without
limitation, the Export Administration Act of 1979 as amended from time to
time and any regulations promulgated thereunder.
SECTION 3. TECHNICAL ASSISTANCE.
3.1 LICENSED SOFTWARE INFORMATION. OPEN MARKET shall make available to
Distributor such technical information as it makes available to its other
distributors generally, including phone support for Distributor's technical
support personnel, subject to such requirements and limitations as OPEN MARKET
may establish from time to time. Distributor is not entitled to receive any
other technical information relating to the Licensed Software.
3.2 ASSISTANCE TO WEB DESIGNERS AND MERCHANTS. OPEN MARKET shall not be
obligated to provide technical assistance of any kind to Distributor's Web
Designers and Merchants. So long as OPEN MARKET makes e-mail technical support
available to its customers, OPEN MARKET shall make such support available to
Distributor's Web Designers and Merchants, but OPEN MARKET shall have the right,
in its sole discretion, to determine the scope of such support.
3.3 ADDITIONAL ASSISTANCE. In the event OPEN MARKET and Distributor agree on
the need to provide special assistance to Distributor related to technical
aspects of the Licensed Software or related to the preparation of literature,
technical materials, or promotional materials, Distributor shall promptly
reimburse OPEN MARKET for any out-of-pocket expenses approved in writing in
advance by Distributor and incurred by OPEN MARKET in connection with rendering
such assistance. OPEN MARKET may also charge reasonable hourly or per diem rates
for some or all of the services rendered
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under this provision, provided that OPEN MARKET and Distributor agree in
writing on the nature and cost of those services prior to their delivery.
SECTION 4. TERMS AND CONDITIONS
4.1 ACCESS TO SOFTWARE. Distributor shall have access to a single copy of the
Licensed Software in binary code and to a single authorization code for each
unit of the Licensed Software sold.
4.2 AUTHORIZATION KEYS. When Distributor sells 10 units or more per month for a
period of three consecutive months, OPEN MARKET shall set up a special password
protected area on its Internet server where Distributor will be able to generate
software authorization keys that will unlock a copy of the Licensed Software to
a specific URL. The keys will be used by Distributor to grant access to Web
Designers and Merchants to the Licensed Software pursuant to a license agreement
in accordance with this Agreement.
4.3 LICENSE FEES. Distributor shall pay a license fee, as set out in Schedule A
for each license granted to a Web Designer or Merchant. Distributor shall become
obligated to pay the license fee immediately upon generating a software
authorization key for the license.
4.4 BILLING AND TERMS OF PAYMENT.
(a) OPEN MARKET shall invoice Distributor on a monthly basis for license fees
payable under this Agreement, according to the quantity of URLs that are
captured by the OPEN MARKET automatic authorization generator, as adjusted for
errors and duplications by OPEN MARKET billing. Distributor shall as soon as
reasonably possible notify OPEN MARKET of any discrepancies or claimed
discrepancies between OPEN MARKET's invoice and the number of authorization keys
generated by Distributor.
(b) Payment shall be made by Distributor within thirty (30) days after
Distributor's receipt of OPEN MARKET's invoice. Distributor shall pay interest
on all late payments at a rate of eighteen percent (18%) per annum, compounded
annually.
(c) If any payment (except those disputed in good faith) under this Agreement
is more than thirty (30) days late, after written notice from OPEN MARKET, OPEN
MARKET shall have the right to immediately terminate this Agreement and all
licenses granted hereunder that relate to the late payment and to disable the
automatic authorization generator. Distributor shall indemnify and hold harmless
OPEN MARKET from and against any and all liabilities and expenses that may be
incurred by OPEN MARKET arising out of or related to termination of this
Agreement under this Paragraph, including
CHP.AGREEMENT - PAGE 5 - 1/98.3.3
but not limited to any and all liabilities and expenses arising out of or
related to claims asserted by Web Designers or Merchants.
(d) Distributor shall be responsible for all reasonable costs of collection
incurred after written notice of late payment, including reasonable legal fees.
SECTION 5. TRADEMARKS AND INTELLECTUAL PROPERTY.
5.1 OWNERSHIP OF THE LICENSED SOFTWARE. OPEN MARKET retains all rights, title
and ownership in and to the Licensed Software, including but not limited to the
current version of the Licensed Software and any and all modifications,
upgrades, bug fixes, modules, additions, templates, and corrections related to
the Licensed Software, whether created by OPEN MARKET, third parties, or any
other person or entity. This Agreement shall not be construed to transfer or
sell to Distributor any rights, title, ownership, or other interest in or to the
Licensed Software or any part thereof, except for the limited license granted
hereunder.
5.2 USE OF OPEN MARKET'S TRADEMARKS. Distributor may use OPEN MARKET's
trademarks, service marks, logos, and designations (all referred to in this
Agreement as "Trademarks") to refer to the Licensed Software in accordance with
such guidelines as OPEN MARKET may provide to Distributor. Distributor shall not
use such Trademarks except as specifically provided in this Agreement.
Distributor shall not (i) dispute or deny the validity of any of the Trademarks,
(ii) claim any right, title, or interest in or to any such Trademarks (including
but not limited to any attempt to register the same in any jurisdiction), or
(iii) knowingly do anything that could adversely affect OPEN MARKET's rights in
such Trademarks. Upon expiration or termination of this Agreement, Distributor
shall immediately cease all use of the Trademarks and shall not thereafter use
any of them or any confusingly similar trademarks.
5.3 TRADEMARK AND COPYRIGHT NOTICE. Distributor shall not remove or alter any
of the Trademarks, copyright notices, confidentiality legends, or other
intellectual property notices that are included in the Licensed Software. The
only exception to this provision is the OPEN MARKET logo in the bottom lefthand
corner of the footer in the back office of the Licensed Software. This logo, and
only this logo, may be removed and replaced by an icon that the Distributor, Web
Designer or Merchant chooses.
5.4 USE OF CONFIDENTIAL INFORMATION. Each party acknowledges that it, as
"Recipient", may receive during the term of this Agreement, certain confidential
information belonging to the other (as "Discloser"), including any and all
information relating to Discloser, its business, or its products or services
that is not generally known to the public at the time disclosed or thereafter
("Confidential Information"). Recipient shall hold Discloser's Confidential
Information in confidence and shall not use or disclose any Confidential
information, or permit any person to examine or copy any confidential
Information
CHP.AGREEMENT - PAGE 6 - 1/98.3.3
except as necessary for the exercise of Recipient's rights under this
Agreement. All obligations of Recipient relating to Discloser's Confidential
Information shall survive the expiration or termination of this Agreement.
The obligations in this Section 5.4 will not apply to the extent that the
Recipient can demonstrate that the Confidential Information (i) was generally
available to the public at the time of disclosure; (ii) became generally
available to the public after its disclosure other than through any act or
omission of the Recipient in breach of this Agreement, (iii) can be
established by written evidence to have been in the possession of Recipient at
the time of disclosure or to have been independently developed by the
Recipient without the use of the Disclosure's Confidential Information; or
(iv) is received, other than under an obligation of confidentiality, from a
third party not under a duty of confidentiality to the Discloser and without
breach of this Agreement; or it is ordered to disclose the disclosed
information in judicial proceedings pursuant to applicable federal, state or
local law, regulation, court order or other legal process or law, provided
that prior to such disclosure the Recipient shall give notice to the other
party so that the other party may take reasonable steps to oppose or limit
such disclosure. All Confidential Information furnished under this Agreement
shall remain the property of the Discloser and shall be returned to it or
destroyed promptly at its request together with all copies made of such
Confidential Information by the Recipient. Such destruction shall be
certified in writing to the Discloser by an authorized officer of the
Recipient.
5.5 PROTECTION OF LICENSED SOFTWARE. Distributor shall endeavor to keep the
Licensed Software in a secure place under access and use restrictions reasonably
adequate to ensure compliance with all of the terms of this Agreement relating
to Distributor's use of the Software and to prevent copying thereof.
5.6 INFRINGEMENT CLAIMS. Distributor shall promptly notify OPEN MARKET of any
known or suspected breach of OPEN MARKET's proprietary rights relating to the
Licensed Software and shall cooperate without charge in OPEN MARKET'S efforts to
protect such proprietary rights. OPEN MARKET shall indemnify Distributor and
defend at OPEN MARKET's sole cost including reasonable attorney's fees any
action brought against Distributor based on an allegation that any Licensed
Software, copyright or trademark infringes a United States copyright or trade
secret, and OPEN MARKET shall pay all costs and damages made in settlement or
awarded as a result of any such action. If a final injunction shall be obtained
in any such action restraining use of the Licensed Software by any customer of
Distributor, or if OPEN MARKET believes that any Licensed Software may become
the subject of a claim of infringement, OPEN MARKET shall, at its option and at
its expense, (i) procure for Distributor's customer the right to continue using
the Licensed Software, (ii) replace or modify the Licensed Software so that it
becomes non-infringing or (iii) refund to Distributor all license fees actually
paid by Distributor to OPEN MARKET during the immediately preceding twelve (12)
months or period in which the Licensed Software was found or suspected to be
infringing, whichever is later, whereupon Distributor shall cease distributing
the
CHP.AGREEMENT - PAGE 7 - 1/98.3.3
Licensed Software. Notwithstanding the foregoing, OPEN MARKET shall have no
obligation with respect to any action brought against Distributor based on an
allegation of copyright or trade secret infringement unless OPEN MARKET is
notified by Distributor in writing of such action and is allowed reasonable
control of the defense of such action and all negotiations for its settlement
or compromise at OPEN MARKET'S sole cost. OPEN MARKET shall have no liability
or obligation with respect to any infringement if such infringement is caused
by (i) compliance with designs, guidelines, plans or specifications of
Distributor; (ii) use of the Licensed Software by Distributor in an
application or environment other than as specified in the instructions for
installing and using the Licensed Software; (iii) modification of the
Licensed Software by any party other than OPEN MARKET or the combination,
operation or use of the Licensed Software with other product(s) not supplied
by OPEN MARKET; or (iv) use of the Licensed Software with other products or
services where the Licensed Software would not by itself be infringing.
Distributor agrees to indemnify and hold harmless OPEN MARKET from and
against all liabilities, obligations, costs, expenses and judgments,
including court costs, reasonable attorneys fees and expert fees, arising out
of any of the circumstances stated in items (i) - (iii) of this section 5.6.
Except where OPEN MARKET is obligated to indemnify Distributor hereunder, and
without limiting any other obligation of Distributor to indemnify OPEN MARKET
hereunder, Distributor shall indemnify, defend and hold OPEN MARKET harmless
from any and all claims, damages, losses, liabilities, costs and expenses
(including reasonable attorney's fees) directly or indirectly brought against
OPEN MARKET by any third party using Distributor's services, arising out of
Distributor's breach of this Agreement. These provisions state OPEN MARKET's
entire liability with respect to infringement of copyrights, trade secrets or
other third party intellectual property rights.
5.7 EQUITABLE REMEDIES. Distributor acknowledges that OPEN MARKET will be
irreparably harmed by any material breach by Distributor of the material
provisions of this Section 5. Therefore, in addition to any other remedies that
OPEN MARKET may have, OPEN MARKET shall be entitled to an injunction, issued by
any court having jurisdiction, restraining any such violation of this Section 5
or specific performance if applicable. Distributor hereby waives, with respect
to any future such dispute related to this Section 5, any defense based on the
arguement that OPEN MARKET will not be irreparably harmed by a material breach
or that OPEN MARKET has available to it an adequate remedy at law for such
breach.
SECTION 6. WARRANTIES AND REMEDIES
6.1 WARRANTY. OPEN MARKET warrants to Distributor that the Licensed Software
will conform substantially to any technical documentation provided to
Distributor under this Agreement for a period of thirty days following
installation. OPEN MARKET does not warrant that the Licensed Software will be
error free or operate without interruption. OPEN MARKET shall not be
responsible for any software other than the Licensed
CHP.AGREEMENT - PAGE 8 - 1/98.3.3
Software and shall not be responsible for defects in the Licensed Software
that are attributable or related to the use of any product not created by
OPEN MARKET or the improper use of, modifications or changes made to, the
Licensed Software by the Distributor or any third party. This warranty is
made solely to Distributor and Distributor shall be responsible for any
Warranty to, or claims by, any Merchant, Web Designer or Shopper.
Distributor's sole remedy, and OPEN MARKET's sole obligation for any breach
of warranty shall be the repair or replacement of defective Licensed
Software. THE WARRANTIES SET OUT IN THIS AGREEMENT ARE PROVIDED IN LIEU OF
ALL OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR
CONFORMANCE TO ANY MERCHANT'S SPECIFICATIONS, WHICH ARE HEREBY SPECIFICALLY
DISCLAIMED.
6.2 LIMITATION OF LIABILITY. IN NO EVENT SHALL OPEN MARKET'S LIABILITY UNDER
THIS AGREEMENT EXCEED THE AGGREGATE AMOUNT OF FEES RECEIVED BY OPEN MARKET
HEREUNDER FROM. NEITHER PARTY SHALL BE LIABLE FOR DIRECT, INDIRECT,
CONSEQUENTIAL, SPECIAL, OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATED TO THE
LICENSING OR USE OF ThE LICENSED SOFTWARE, DEFECTS IN THE LICENSED SOFTWARE, OR
ANY PERSON'S INABILITY TO USE ThE LICENSED SOFTWARE FOR ANY REASON, INCLUDING
BUT NOT LIMITED TO DAMAGES RELATING TO LOSS OF DATA, DOWN TIME, TRANSACTION
ERRORS, OR OTHER LOSSES TO THE WEB DESIGNERS, MERCHANTS, SHOPPERS, OR ANY OTHER
PERSON.
6.3 NO WARRANTY TO WEB DESIGNERS OR MERCHANTS. Neither party will warrant the
Licensed Software to Web Designers, Merchants or Shoppers, and each party shall
be solely responsible for any representations or warranties made to Web
Designers, Shoppers or Merchants by it with respect to the operation of the
Software.
6.4 INDEMNIFICATION. Each party agrees to indemnify (as the "Indemnifying
Party") and hold harmless the other (the "Indemnified Party") from and against
any and all claims, damages, liabilities, costs, and expenses (including
reasonable attorney's fees) resulting from, arising out of, or related in any
way to (i) any relationship between the Indemnifying Party and Web Designers or
Merchants, (ii) any representation made by Indemnifying Party to a Web Designer
or Merchant, (iii) any Web Designer's, Merchant's or Shopper's use of
Distributor's Internet server, or (iv) any failure of Indemnifying Party to
comply with any of its obligations under this Agreement. Notwithstanding the
above, neither party shall be required to indemnify and hold harmless the other
for claims, damages, liabilities, costs and expenses resulting from, arising out
of, or related in any way to the gross negligence or willful misconduct of the
other party. Nothing in this
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section 6.4 shall be construed to mean that Distributor will in any way
indemnify OPEN MARKET for the failure of OPEN MARKET's products to perform in
accordance with the instructions for installing and using the Licensed
Software.
SECTION 7. TERM AND TERMINATION.
7.1 TERM AND RENEWAL. This Agreement shall continue in full force and effect
for a period of one year from its execution by both parties and shall
automatically renew for additional one-year terms thereafter, unless either
party gives written notice of its desire not to renew the Agreement at least
thirty (30) days prior to the end of the then-current term.
7.2 TERMINATION UPON BREACH. Either party may terminate this Agreement if the
other party breaches its obligations hereunder and fails to cure the breach
within thirty (30) days (or, in the case of any non-payment hereunder, within
ten (10) days) after receiving written notice from the non-breaching party
specifying the nature of the breach.
7.3 SUSPENSION OF PERFORMANCE. Immediately upon any material breach by
Distributor and after written notice to Distributor therefor, OPEN MARKET shall
have the right to suspend its performance hereunder and to reasonably restrict
Distributor's access to additional authorization keys.
7.4 EFFECT OF TERMINATION UPON MERCHANTS. Termination of this Agreement shall
not affect the validity of any licenses granted to Web Designers or Merchants in
accordance with this Agreement prior to the effective date of termination.
7.5 LIABILITY UPON TERMINATION. Neither party shall have any liability to the
other by reason of the expiration or termination of this Agreement for
compensation, reimbursement, or damages of any kind, including without
limitation any loss of prospective profits on anticipated sales, loss of
goodwill, or investments made in reliance on this Agreement. Each party
acknowledges that neither has received assurances from the other that its
business relationship will continue beyond any given one year term established
in this Agreement, that it will obtain any anticipated amount of profits in
connection with this Agreement, or that it will recoup its investment in the
promotion of the Licensed Software.
SECTION 8. GENERAL PROVISIONS.
8.1 RELATIONSHIP BETWEEN THE PARTIES. Neither party to this Agreement and none
of their respective agents, employees, representatives, or independent
contractors shall (i) be considered an agent, employee, or representative of the
other party for any purpose whatsoever, (ii) have any authority to make any
agreement or commitment for the other
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party or to incur liability or obligation in the other party's name or on its
behalf; or (iii) represent to third parties that any of them has any right to
bind the other party hereto. Nothing contained in this Agreement shall be
construed or interpreted as creating an agency, partnership, or joint venture
relationship between the parties.
8.2 NOTICES. Without precluding any other sufficient form of notice, all
notices, demands, or other communications under this Agreement shall be deemed
given if sent by first class, certified mail (return receipt requested), fax,
electronic mail, or overnight courier, to the address of the party as set out in
this Agreement or to another address specified by the party.
8.3 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between
the parties pertaining to its subject matter, and it supersedes any and all
written or oral agreements previously existing between the parties with respect
to such subject matter hereof. No supplement, modification, or amendment of this
Agreement shall be binding unless executed in writing by both parties.
8.4 WAIVER. Either party's failure to insist on strict performance of any
provision of this Agreement shall not be deemed a waiver of any of its rights
or remedies, nor shall it relieve the other party from performing any
subsequent obligation strictly in accordance with the terms of this
Agreement. No waiver shall be effective unless it is in writing and signed by
the party against whom enforcement is sought. Such waiver shall be limited to
provisions of this Agreement specifically referred to therein and shall not
be deemed a waiver of any other provision. No waiver shall constitute a
continuing waiver unless the writing states otherwise.
8.5 SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of, and
shall be binding upon, the respective heirs, legal representatives, successors,
and assigns of each of the parties.
8.6 ASSIGNMENT. This Agreement may not be assigned by either party without the
prior written consent of the other; provided, however, that no such consent
shall be required in connection with the assignment of this Agreement by OPEN
MARKET to a successor to all or substantially all of the business to which this
Agreement relates. Any attempted assignment in violation of this provision shall
be void and shall be deemed a breach of this Agreement.
8.7 SECTION HEADINGS. The section headings in this Agreement are included for
convenience only and shall not be deemed to limit or otherwise affect the
construction of any of its provisions.
8.8 SEVERABILITY. In the event that any of the provisions of this Agreement
shall be held by a court or other tribunal of competent jurisdiction to be
unenforceable, such provision
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will be enforced to the maximum extent permissible and the remaining
portions of this Agreement shall remain in full force and effect.
8.9 PARTIES IN INTEREST. Nothing in this Agreement is intended to confer any
rights or remedies on any persons other than the parties to it. This Agreement
shall not be construed to relieve or discharge any obligations or liabilities of
third persons, nor shall it be construed to give third persons any right of
subrogation or action over against any party to this Agreement.
8.10 FORCE MAJEURE. Neither party shall be responsible for any failure to
perform due to unforeseen circumstances or to causes beyond that party's
reasonable control, including but not limited to acts of God, war, riot,
embargoes, acts of civil or military authorities, compliance with governmental
laws, rules, or regulations, accidents, strikes, labor disputes, power outages,
or shortages. Failure to perform shall be excused during the continuance of
such circumstances, but this Agreement shall otherwise remain in effect.
8.11 CHOICE OF LAW; CHOICE OF FORUM. This Agreement shall be governed by and
construed in accordance with the law of the Commonwealth of Massachusetts
(except that body of laws controlling conflict of laws). Each of the parties
consents to the jurisdiction of the courts located in the Commonwealth of
Massachusetts with respect to all matters relating to this Agreement and agrees
that all litigation relating to this Agreement shall take place in courts
located in the Commonwealth of Massachusetts.
IN WITNESS OF THE FOREGOING, the parties have caused this Agreement to be
executed on the dates indicated below. This Agreement shall be deemed effective
on the date it is signed by OPEN MARKET.
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OPEN MARKET, INC. /s/ FlashNet Communications
----------------------------------------
Distributor
By /s/ Xxxx Xxxxxx By /s/ M. Xxxxx Xxxxxx
------------------------------- -----------------------
Name: Xxxx Xxxxxx Name: M. Xxxxx Xxxxxx
---------------------------- --------------------
Title: Director Title: President
--------------------------- -------------------
hereunto duly authorized hereunto duly authorized
Date: 6/11/98 Date: 6/11/98
---------------------------- --------------------
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SCHEDULE A
To join the ShopSite Certified Hosting Partner program, OPEN MARKET
requires upon execution of this Agreement a sign-up fee of $(Confidential
treatment has been requested), for which OPEN MARKET shall provide 8 copies
of ShopSite Manager or $(Confidential treatment has been requested) in credit
for an equivalent mix of Manager and Pro, one day of training for both
internal tech support personnel and external Web Designers associated with
Distributor's reseller's program, ability to participate in OPEN MARKET'S
discount program, plus other program elements detailed in OPEN MARKET's CHP
program explanation document.
All discounts are based on OPEN MARKET's announced List price for ShopSite v3.3
family of products. OPEN MARKET reserves the right to change the List price of
ShopSite v3.3 family of products, but agrees to give Distributor 30 days notice
prior to that change following ?????????????????????????????? beginning with
v3.4 and later. OPEN MARKET and Distributor shall negotiate a separate price
schedule to cover ShopSite v3.4 family of products and any new products that
OPEN MARKET introduces.
OPEN MARKET offers three discount rates for ShopSite Manager and Pro to
its Distributors. Level I is (Confidential treatment has been requested) off
List; Level II is (Confidential treatment has been requested) off List; Level
III is (Confidential treatment has been requested) off List.
OPEN MARKET applies the following point value to each product
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SS Pro = 10 points SS Manager = 5 points SS Express = 0 points
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1) The first 90 days of the contract, ShopSite v3.3 family of products
licenses will be sold at the Level III discount price.
2) After the close of the first 90-day period and moving forward, OPEN MARKET
evaluates price Level based on a rolling 90-day period. If 50 points or
less are sold on a rolling 90-day period, then the discount drops to the
Level I price. If sales are 51 points or more for that 90-day rolling
period, then the discount holds at the Level II discount price. To maintain
the Level II discount price, the Distributor must maintain a unit sales
volume of between 51 and 600 units, calculated on a rolling 90-day basis.
If Distributor moves more than 601 units in a rolling 90-day period, then
Level III discount is applied.
SHOPSITE MANAGER AND PRO DISCOUNT LEVELS ARE CALCULATED ON A ROLLING 90-DAY
BASIS:
CHP.AGREEMENT - PAGE 14 - 1/98.3.3
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Level I =(Confidential off list Level II =(Confidential off list Level III =(Confidential off list
treatment has treatment has treatment has
been requested) been requested) been requested)
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1 to 50 points 51-600 points 601 and > points
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PRODUCT POINTS
--------------------------------------------------------------------------------------------------------------
Pro = 10 points Manager = 5 points Express = 1 point
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2) Example:
1/97 through 3/97: good faith starter discount - Level II, (Confidential
treatment has been requested) off list
4/2/97: discount calculated by looking at points from 4/1/97
through 3/3/97 (rolling 90 days); if 50 or less, it
drops to Level I; if 51 or greater, it holds at Level II.
3) Beginning with the second 90-day period and beyond, if unit sales exceed
600 points sold during a rolling 90-day period the discount moves to the
Level III discount price.
SHOPSITE EXPRESS PRICE SCHEDULE:
1) OPEN MARKET will allow Distributor to have unlimited copies of Express at
(Confidential treatment has been requested) during the term of this
contract.
CHP.AGREEMENT - PAGE 15 - 1/98.3.3
