STRATEGIC ALLIANCE AND MARKETING AGREEMENT
This Strategic Alliance and Marketing Agreement (the "Agreement") is made
as of this 27th day of September, 1999 (the "Effective Date") by and between
XXXXXX.XXX INC., a Delaware corporation ("Xxxxxx.xxx") and ROWECOM INC., a
Delaware corporation ("RoweCom").
WHEREAS, Xxxxxx.xxx is developing a destination web site for small to medium-
sized businesses (together with any successor sites, the "Xxxxxx.xxx Site" as
further defined below); such site is to provide online news, easy-to-use tools,
and other services on the Internet;
WHEREAS, RoweCom provides business-to-business electronic commerce services to
businesses and not-for-profit institutions interested in purchasing
subscriptions, books and other knowledge products and services of a professional
nature and, in connection therewith, RoweCom collaborates with such entities to
enhance existing intranet networks to enable such entities to purchase
subscriptions, books and other knowledge products and services via their
intranets; and
NOW, THEREFORE, in consideration of the promises contained herein and for
other good and valuable consideration, the receipt and sufficiency of which the
parties hereby acknowledge, Xxxxxx.xxx and RoweCom agree as follows:
1. DEFINITIONS
1.1. DEFINED TERMS. For purposes of this Agreement, the following terms have
the respective meanings set forth below:
x. XXXXX MARGIN means the aggregate amount received by RoweCom on an
Initial Order or a Renewal Order, less: (i) payments to third-party
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publishers or strategic partners in generating such Order, (ii) credits,
refunds and allowances separately and actually credited to customers in
connection with such Order for defective, damaged, outdated, and
returned or cancelled RoweCom Titles; (iii) offered and taken trade and
cash discounts, rebates, trade commissions and distribution fees in
amounts customary to the trade and as required to do business in the
country in which they are made; and (iv) sales, excise, use, turnover,
inventory, value-added and similar taxes and duties, not including net
income tax. Gross Margin shall not include special outbound packing,
transportation, insurance, and handling charges, separately billed to
the customer or prepaid.
B. HTML means hypertext xxxx-up language.
C. INITIAL ORDER means an initial order for a RoweCom Title placed by an
Xxxxxx.xxx Customer through the RoweCom kStore.
D. KNOWLEDGE PRODUCTS means any magazines, books, journals, subscriptions,
serials, market research reports, or other publications, embodied in
paper or electronic media.
E. LAUNCH DATE means the date on which the RoweCom kStore is substantially
complete and functional in all material respects for Xxxxxx.xxx
Customers or
potential Xxxxxx.xxx Customers, and in no event shall be later than
the date of the Xxxxxx.xxx Site Launch, scheduled for one (1) month
after the Effective Date of this Agreement. RoweCom will assist
Xxxxxx.xxx in the launch of the RoweCom kStore, integrated with
Xxxxxx.xxx's SPIM, at the time of such Xxxxxx.xxx Site Launch.
F. XXXXXX.XXX CHANNEL means all marketing and distribution channels
including but not limited to the Xxxxxx.xxx Site, affinity group web
sites created by Xxxxxx.xxx during the Term hereof, and direct marketing
and other marketing and distribution channels related to the Xxxxxx.xxx
Site and utilized by Xxxxxx.xxx.
G. XXXXXX.XXX CONTENT means any materials provided by Xxxxxx.xxx to RoweCom
in connection with this Agreement, including any Xxxxxx.xxx logos or
images, the SPIM, and related materials.
H. XXXXXX.XXX CUSTOMER means any person or entity that orders at least one
(1) RoweCom Title through the RoweCom kStore.
I. XXXXXX.XXX SITE means (1) the web site and pages that a user's web
browser will generate as a result of requesting URLs in the "xxxxxx.xxx"
Internet domain, other than such pages intended for testing,
development, or other internal purposes; and (2) any web pages or sites
that are replacements for such web pages or site.
J. XXXXXX.XXX SITE LAUNCH means the point in time when the Xxxxxx.xxx Site
is first made available for use by the general public via the public
Internet.
K. INTELLECTUAL PROPERTY means the respective patents, trade secrets,
copyrights, trademarks, industrial designs and other intellectual
property of the parties, including without limitation the RoweCom
Trademarks, the Xxxxxx.xxx Trademarks, related sales collateral, RoweCom
Content, and any such Intellectual Property contained in the RoweCom
kStore, Xxxxxx.xxx Content, and/or the Xxxxxx.xxx Site.
L. RENEWAL ORDER means the renewal of an Initial Order.
M. ROWECOM CONTENT means the list of all RoweCom Titles provided through
the RoweCom kStore, as updated by RoweCom from time to time, but
excluding any Xxxxxx.xxx Content. Subject to Section 3.2(g) below,
RoweCom shall have and retain sole editorial discretion over RoweCom
Content.
N. ROWECOM KSTORE means a customized, co-branded Xxxxxx.xxx/XxxxXxx web
site prepared by RoweCom and subject to the joint approval of Xxxxxx.xxx
and RoweCom. The RoweCom kStore will contain a catalog of RoweCom
Titles, order processing, and other features, and will have a URL
address determined by RoweCom.
O. ROWECOM TITLE means any Knowledge Product that RoweCom is authorized by
a publisher to sell and that is listed in the RoweCom kStore, as updated
from time to time.
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P. TERM means the period beginning on the Effective Date and ending upon
expiration or termination of this Agreement, as set forth in Section 7
hereto.
Q. TRADEMARK means names, trademarks, services marks, trade names, labels,
logos, designs or other designations and all goodwill associated
therewith. The RoweCom Trademarks are set forth in Exhibit B (hereby
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incorporated by reference), as may be updated by RoweCom from time to
time. The Xxxxxx.xxx Trademarks are set forth in Exhibit C (hereby
---------
incorporated by reference), as may be updated by Xxxxxx.xxx from time to
time.
R. URL means uniform resource locator.
1.2. OTHER DEFINED TERMS. Each of the following terms have the meanings ascribed
to it in the section set forth opposite such term:
AGREEMENT Preamble
AUDITED PARTY Section 4.3
AUDITING PARTY Section 4.3
BUY BOXES Section 2.1
CONFIDENTIAL
INFORMATION Section 6.1
DHTML Section 2.1
DISCLOSING PARTY Section 6.1
EFFECTIVE DATE Preamble
INDEMNITOR Section 8.3(a)
INDEMNITEES Section 8.3(a)
INITIAL TERM Section 7.1
LOSSES Section 8.3(a)
XXXXXX.XXX Preamble
XXXXXX.XXX LINK
FILE Section 2.2
XXXXXX.XXX DIRECT
COMPETITOR Section 3.5 and Exhibit D (hereby incorporated
---------
by reference)
QUARTERLY
STATEMENT Section 4.2
ROWECOM Preamble
ROWECOM DIRECT
COMPETITOR Section 3.5 and Exhibit D
---------
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ROWECOM LINK FILE Section 2.1
RECIPIENT Section 6.1
VERTICAL
NAVIGATION BAR Section 2.1
2. LINKAGE
2.1. SITE LINKS TO THE ROWECOM KSTORE. Subject to the terms of this Agreement
but in no event later than December 15, 1999, provided that the RoweCom
kStore is completed and functional in all material respects for the
Xxxxxx.xxx Site Launch, Xxxxxx.xxx will place a hypertext link to a page
within the RoweCom kStore within the second sub-level of the hierarchical
dynamic HTML ("DHTML") site navigation display appearing on the upper left
corner of each page (the "Vertical Navigation Bar") of the Xxxxxx.xxx Site.
Xxxxxx.xxx shall have the right to change the appearance and/or
functionality of the Vertical Navigation Bar, as is more fully set forth in
Section 3.12, provided that, during the Term hereof, Xxxxxx.xxx shall
provide a hypertext link of equivalent prominence (in Xxxxxx.xxx's
reasonable determination) to a page within the RoweCom kStore. In addition
and not in lieu of the foregoing, the RoweCom kStore may also be accessible
through links from purchasing and online transaction opportunities for
contextually relevant items in selected product categories ("Buy Boxes"),
located on the Xxxxxx.xxx Site, the size, number and placement of which
shall be within Xxxxxx.xxx's sole discretion. RoweCom shall provide the
textual and/or graphic content, when applicable, of these links to
Xxxxxx.xxx as one or more computer-readable files in an Internet standard
file format (such files being, collectively, the "RoweCom Link File").
2.2. SITE LINKS TO THE XXXXXX.XXX SITE. Subject to the terms of this Agreement
but in no event later than the Launch Date, RoweCom will place a hypertext
link to the Xxxxxx.xxx Site, with a URL address determined by Xxxxxx.xxx,
from each page of the RoweCom kStore, the location, size and placement of
which link shall be mutually agreed to by the parties. Xxxxxx.xxx will
provide the textual and/or graphic content, when applicable, of these links
to RoweCom as one or more computer-readable files in an Internet standard
file format (such files being, collectively, the "Xxxxxx.xxx Link File").
2.3. EXPENSES. Each party shall be responsible for its own expenses in
performing its obligations under this Agreement.
3. OBLIGATIONS OF THE PARTIES.
3.1. Xxxxxx.xxx Obligations. Subject to the terms of this Agreement, Xxxxxx.xxx
shall:
a. Assign an account executive for RoweCom kStore implementation, and to
act as an Xxxxxx.xxx contact for the daily operations of the RoweCom
kStore;
b. Provide one or more hypertext links from the Xxxxxx.xxx Site to the
RoweCom kStore as set forth in Section 2.1 of this Agreement;
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C. List RoweCom as a partner on the Xxxxxx.xxx Site in the same manner as
Xxxxxx.xxx lists its other partners on the Xxxxxx.xxx Site, and, upon
mutual agreement by both parties, in advertising, promotional, and/or
publicity materials;
D. Make payments to RoweCom, and provide Quarterly Statements, in
accordance with Section 4 hereof for all advertising within the
RoweCom kStore.
E. Market and sell advertising on the RoweCom kStore, and collect
revenues for such advertising.
3.2. ROWECOM OBLIGATIONS. Subject to the terms of this Agreement, RoweCom shall:
a. At RoweCom's expense, develop, host, maintain, and integrate
Xxxxxx.xxx's SPIM into, the RoweCom kStore, subject to the approval of
the parties;
B. Assign an account executive for RoweCom kStore implementation, and to
act as Xxxxxx.xxx's primary contact for the daily operations of the
RoweCom kStore;
C. Provide hypertext links from the RoweCom kStore to the Xxxxxx.xxx Site
as set forth in Section 2.2 of this Agreement;
D. Process Initial Orders and Renewal Orders received from Xxxxxx.xxx
Customers, collect amounts from such Xxxxxx.xxx Customers, comply with
all applicable laws and regulations, fulfill Initial Orders and
Renewal Orders, process address changes for Xxxxxx.xxx Customers, and
provide customer service on Initial Orders and Renewal Orders
consistent with the terms set forth in Exhibit E (hereby incorporated
---------
by reference), including but not limited to assigning a customer
service representative to provide customer support and respond to
claims from Xxxxxx.xxx Customers;
E. Provide, to the extent permitted by applicable laws and regulations,
information to Xxxxxx.xxx regarding Xxxxxx.xxx Customers, Initial
Orders and Renewal Orders in accordance with the terms of this
Agreement, including but not limited to names, addresses, telephone
numbers, email addresses, and product purchase information;
F. Honor the policy regarding cancellations and refunds provided by the
publisher of the applicable RoweCom Title, provided that RoweCom
reserves its right to change its policy regarding refunds and
cancellations and will promptly and conspicuously post on the RoweCom
kStore, and promptly provide written notice to Xxxxxx.xxx of, any such
change(s);
g. Perform title searches for additions to RoweCom Content and use its
best efforts to add to RoweCom Content a particular Knowledge Product
requested by Xxxxxx.xxx or an Xxxxxx.xxx Customer or potential
Xxxxxx.xxx Customer within three (3) business days of such request.
From time to time during the Term, RoweCom may, at its sole
discretion, make corrections, enhancements, revisions, updates,
upgrades and other changes to RoweCom Content unrelated to any
requests by Xxxxxx.xxx or Xxxxxx.xxx Customers. In the event that (1)
RoweCom cannot or will not add requested materials to the RoweCom
Content within the time specified above, or (2) RoweCom ceases to
offer a particular RoweCom Title, Xxxxxx.xxx shall be
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entitled to contract directly with the publisher or any other provider
of such Knowledge Product for the right to offer such titles on or
through the Xxxxxx.xxx Site, provided that, Xxxxxx.xxx shall provide
at least seven (7) days advance written notice of such intent to seek
such Knowledge Product from a publisher or other third party provider.
H. No later than the launch of version 4.0 of the RoweCom kStore (which
RoweCom intends to enable by December 15, 1999, and shall in any event
enable no later than January 15, 2000), provide discounts on all
Knowledge Products (other than market research reports and RoweCom's
800 most popular titles) ordered by Xxxxxx.xxx Customers in accordance
with RoweCom's then-current pricing and discounts, including, as
applicable, providing the lowest price available on all large
circulation and general interest magazines sold through the RoweCom
kStore;
I. Provide technical support to Xxxxxx.xxx in connection with the
installation, operation, and maintenance of the RoweCom kStore; and
j. Make payments, and provide Quarterly Statements, to Xxxxxx.xxx in
accordance with Section 4 hereof for all Initial Orders and Renewal
Orders.
3.3. DEVELOPMENT: RoweCom and Xxxxxx.xxx shall cooperate in good faith with
regard to (a) implementation of the RoweCom kStore, (b) linking the RoweCom
kStore to the Xxxxxx.xxx Site, (c) conformance of the RoweCom kStore with
Xxxxxx.xxx's proprietary SPIM, (d) the development of a RoweCom kStore 4.0
design, and (e) such other matters as the parties agree to address jointly.
3.4. LICENSES.
a. LICENSES TO XXXXXX.XXX. Subject to the terms set forth herein, RoweCom
hereby grants to Xxxxxx.xxx:
(1) a limited, world-wide, non-exclusive, non-transferable, non-
assignable (except as set forth in Section 9.3), royalty-free
right and license (excluding the right to sublicense) to store,
copy, distribute, transmit, adapt, and display the RoweCom
kStore, RoweCom Content, and the RoweCom Link File as delivered
under Section 2.1 solely to (i) market, promote, and offer
RoweCom Content to Xxxxxx.xxx Customers or potential Xxxxxx.xxx
Customers through Xxxxxx.xxx Channels, (ii) to market and promote
the Xxxxxx.xxx Site generally, subject to the terms of this
Agreement and particularly Section 3.6 hereof, and (iii) comply
with Xxxxxx.xxx's obligations under Section 3.1 of this
Agreement;
(2) a limited, world-wide, non-exclusive, non-assignable (except as
set forth in Section 9.3), royalty-free right and license
(excluding the right to sublicense) to use the RoweCom Trademarks
solely to promote and market the RoweCom kStore and RoweCom
Content in accordance with the terms of this Agreement. Upon
reasonable notice from RoweCom, Xxxxxx.xxx shall permit RoweCom
to visit all locations on the Internet where Xxxxxx.xxx delivers
services using the RoweCom Trademarks to ensure that (a) such
services are delivered in a manner consistent with the
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service standards employed by RoweCom and (b) the RoweCom
Trademarks used in connection with such services are in
compliance with the specifications provided to Xxxxxx.xxx from
time to time. It is understood that, under certain circumstances,
Xxxxxx.xxx may need third party consents to effectuate the
visitation by RoweCom. In such circumstances, Xxxxxx.xxx will
work with RoweCom to facilitate the review of the usage of the
RoweCom Trademarks.
B. LICENSE TO ROWECOM. Subject to the terms set forth herein, Xxxxxx.xxx
hereby grants to RoweCom a limited, world-wide, non-exclusive, non-
assignable (except as set forth in Section 9.3), royalty-free right and
license (excluding the right to sublicense) to use the Xxxxxx.xxx
Trademarks and Xxxxxx.xxx Content (excluding the SPIM) solely to (i)
promote and market the RoweCom kStore and the RoweCom Content in
accordance with the terms of this Agreement, and (ii) to comply with its
obligations under Section 3.2 of this Agreement. RoweCom agrees that,
upon reasonable notice from Xxxxxx.xxx, RoweCom shall permit Xxxxxx.xxx
to visit all locations on the Internet where RoweCom delivers services
using the Xxxxxx.xxx Trademarks to ensure that (1) such services are
delivered in a manner consistent with the service standards employed by
Xxxxxx.xxx and (2) the Xxxxxx.xxx Trademarks used in connection with
such services are in compliance with the specifications provided to
RoweCom from time to time. It is understood that, under certain
circumstances, RoweCom may need third party consents to effectuate the
visitation by Xxxxxx.xxx. In such circumstances, RoweCom will work with
Xxxxxx.xxx to facilitate the review of the usage of the Xxxxxx.xxx
Trademarks.
C. RESTRICTION ON USE OF CONFIDENTIAL INFORMATION Nothing in this Section
3.4 shall allow either party to use the other party's Confidential
Information beyond the limitations on such use set forth in Section 6
below.
3.5. EXCLUSIVITY. Subject to Section 7.2(d), it is hereby understood and agreed
by the parties that RoweCom shall be the exclusive provider of those
Knowledge Products set forth on Exhibit A attached hereto (and hereby
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incorporated by reference) under the caption "Knowledge Products Provided
by RoweCom and Subject to Exclusivity", and a non-exclusive provider of all
other Knowledge Products for the Xxxxxx.xxx Site. Subject to the terms of
Section 3.2(g), during the Term of this Agreement, Xxxxxx.xxx agrees not to
enter into a similar arrangement or agreement for linking, co-branding,
development and integration of the Xxxxxx.xxx Site with any RoweCom Direct
Competitors (as defined in Exhibit D) for the provision of those Knowledge
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Products set forth on Exhibit A, through the Xxxxxx.xxx Site, provided
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however that nothing in this Agreement shall prevent Xxxxxx.xxx from (a)
accepting banners, sponsorships and advertising from any third party on the
Xxxxxx.xxx Site, including a RoweCom Direct Competitor, so long as such
banners, sponsorships, and advertising do not specifically reference those
Knowledge Products subject to the exclusivity provisions as set forth on
Exhibit A, and (b) offering, selling, promoting, and/or marketing
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discounted or trial subscriptions to Xxxxxx.xxx Customers or potential
Xxxxxx.xxx Customers for all Knowledge Products published by up to twenty
(20) publishers per one (1) year period that this Agreement is in effect.
Nothing herein shall be deemed to similarly limit RoweCom from selling,
promoting, marketing, or otherwise distributing Knowledge Products through
other vendors or channels, provided, however, that during the first three
(3) months of the
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Term of this Agreement, RoweCom shall not make available any web site or
other service that is linked, co-branded, developed, or integrated with any
Xxxxxx.xxx Direct Competitor (as defined in Exhibit D).
3.6. PUBLICITY. Neither party shall originate or cause to be issued any
publicity or news release or otherwise make any public announcement or
statements, written or oral, with respect to this Agreement or the terms
hereof or the transactions contemplated hereby unless mutually agreed by
the parties in writing (not be unreasonably withheld or delayed),
provided that, each party may provide information to the extent required
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under securities laws or other applicable laws or regulations, or
governmental or court order. Neither party shall use the name of the other
party or any adaptation thereof or any of such other party's Trademarks in
any advertising, promotional or sales literature, or in any other form of
publicity without prior written consent (which consent will not be
unreasonably withheld or delayed) obtained from the other party in each
case. Notwithstanding the foregoing, a party shall not be in breach of this
Section 3.6 as a result of the incidental appearance of the other party's
web site, Content, Link File, or Trademarks in any public demonstration of
such party's web site or services generally.
3.7. OWNERSHIP AND USE OF XXXXXX.XXX CUSTOMER INFORMATION.
A. RoweCom will tag each Xxxxxx.xxx Customer or potential Xxxxxx.xxx
Customer who visits the RoweCom kStore in its customer database as an
Xxxxxx.xxx Customer. RoweCom will, at the end of each month of the
Term, forward all data relating to Xxxxxx.xxx Customers or potential
Xxxxxx.xxx Customers collected through the RoweCom kStore to
Xxxxxx.xxx.
B. RoweCom will not proactively market to an Xxxxxx.xxx Customer with any
marketing message meant to drive the customer directly to the RoweCom
kStore or any other web Site owned or operated by RoweCom or any third
party; provided that this restriction will not apply to those
Xxxxxx.xxx Customers who have purchased a Knowledge Product from
RoweCom through a channel other than the RoweCom kStore within the two
(2) years prior to any such marketing activities conducted by RoweCom.
C. RoweCom shall use commercially reasonable efforts to respect and
maintain the privacy of Xxxxxx.xxx Customers and potential Xxxxxx.xxx
Customers, shall keep information regarding Xxxxxx.xxx Customers
confidential, and shall not market, sell or otherwise provide access
to a third party to any personally identifiable user data whatsoever.
Each party is responsible for complying with applicable laws governing
its use of such data.
3.8. INTELLECTUAL PROPERTY. Subject to the terms hereof, each party shall inform
the other party of any changes in or additions to the informing party's
Trademarks, and shall amend either Exhibit B or Exhibit C accordingly. Each
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party shall use commercially reasonable efforts to correctly reference the
other party's Trademarks and other proprietary rights in any marketing,
advertising, promotional materials, sales literature or publicity permitted
hereunder, as required by law or as reasonably requested by the other
party. Each party's Trademarks and Confidential Information (as defined
below) shall remain the sole and exclusive property of such party and the
other party shall have no
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rights thereto, except as otherwise expressly provided herein, and the
goodwill associated therewith shall inure to the benefit of the owner of
such Trademark. Upon any expiration or termination of this Agreement, the
license to use the Trademarks shall terminate. Except as otherwise
expressly provided herein, nothing contained in this Agreement shall be
deemed to transfer ownership of copyrightable material from one party to
the other.
3.9. CONTACT PERSONS. Each party shall designate a Partner Relations Manager
whose name is set forth on the signature page to this Agreement to
implement the obligations of each such party hereunder and to be available
to respond to inquiries during the normal business hours of such party.
3.10. SALES COLLATERAL. Each party shall furnish at no cost to the other party
reasonable quantities of promotional materials, such as sales literature
and similar promotional material, relating to RoweCom Content, RoweCom
Trademarks, and the Xxxxxx.xxx Site, including such information as is
necessary or appropriate for each party to formulate any marketing
materials used in connection with marketing activities under this
Agreement. Each party hereby grants to the other party a license during
the Term to use such promotional materials solely for purposes of
promoting the granting party, provided that, neither party shall edit,
modify or otherwise alter the form or content of such promotional
materials except as necessary to convert such promotional materials into
analog or digital format.
3.11. SPIM LICENSING. Beginning no earlier than October 15, 1999 and continuing
for a period no longer than six (6) months thereafter (unless otherwise
agreed to in writing by the parties), the parties shall negotiate in good
faith regarding RoweCom's possible use of Xxxxxx.xxx's SPIM technology for
integration with third parties who are not competitors of Xxxxxx.xxx. The
subject matter of such negotiations shall include, without limitation,
discussion of (a) liability issues related to such licensing, and (b)
issues related to support of the SPIM with respect to RoweCom and such
third parties, if any. Notwithstanding the foregoing or any other
provision of this Agreement, neither party shall be under any obligation
to enter into any agreement with the other party regarding such use by
RoweCom of the SPIM technology.
3.12. OPERATION OF THE XXXXXX.XXX SITE. Except as may be expressly provided
otherwise in this Agreement, Xxxxxx.xxx shall have sole and absolute
discretion to determine all matters relating to the Xxxxxx.xxx site
including, without limitation, all technical, operational, financial,
organizational, promotional, content, naming, appearance, availability,
and business matters.
4. PAYMENTS AND AUDITS
4.1. PAYMENTS.
A. PAYMENTS BY ROWECOM. Subject to the terms of this Agreement, RoweCom
shall pay to Xxxxxx.xxx, no later than fifteen (15) business days
after the end of every alternate calendar month, an amount equal to
that percentage of the Gross Margin
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set forth in the table below corresponding to the number of RoweCom
Titles sold to Xxxxxx.xxx Customers for the preceding two-month
period:
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NUMBER OF ROWECOM TITLES SOLD Percentage of Gross Margin
payable by RoweCom to
Xxxxxx.xxx
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1 to 100,000 10%
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100,001 to 200,000 15%
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200,001 to 400,000 20%
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400,001 or greater 25%
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All amounts paid by RoweCom pursuant to this Section 4.1(a) shall be
cumulative. For example, if during any two-month calendar period,
Xxxxxx.xxx generated sales of 400,002 RoweCom Titles, then it would be
entitled to receive a commission equal to: 10% of the Gross Margin on
the first 100,000 RoweCom Titles sold, 15% of the Gross Margin on the
next 100,000 RoweCom Titles sold, 20% of the Gross Margin on the next
200,000 RoweCom Titles sold, and 25% on the additional 2 RoweCom
Titles sold.
B. PAYMENTS BY XXXXXX.XXX. Subject to the terms of this Agreement,
Xxxxxx.xxx shall pay to RoweCom, no later than thirty (30) days after
the end of each calendar month, an amount equal to twenty-four and one-
half percent (24.5%) of all advertising revenue received by Xxxxxx.xxx
during the Term for the preceding calendar month for advertisements on
the kStore, minus applicable expenses incurred in generating such
advertising revenues including, but not limited to, standard agency
commission fees, and sales, use, withholding or other taxes, quantity
and cash discounts, bad debts, and collection fees. Such advertising
revenues shall not include non-cash revenue arising from bartered
advertising and house advertisements; provided that if Xxxxxx.xxx
barters advertising on the RoweCom kStore with a third party, RoweCom
shall receive a credit for the equivalent value of such advertising, as
reasonably determined by Xxxxxx.xxx, that RoweCom may apply toward
advertising on the Xxxxxx.xxx Site, which advertising will link to the
RoweCom kStore.
4.2. QUARTERLY STATEMENTS. Within fifteen (15) days after the end of each
calendar quarter after the Effective Date and for as long as any amounts
are due in accordance with this Section 4, each party shall submit to the
other party (a) a detailed statement ("Quarterly Statement") that sets
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forth, with respect to the Quarterly Statement prepared by RoweCom, each
Xxxxxx.xxx Customer who placed an Initial Order or a Renewal Order for a
RoweCom Title and the Gross Margin received by RoweCom on such order during
such quarter then ended, and (b) with respect to the Quarterly Statement
prepared by Xxxxxx.xxx, the total amount of advertising revenue received by
Xxxxxx.xxx for the applicable period and the calculation of the amounts
payable to RoweCom pursuant to Section 4.1(b).
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4.3. AUDITS. During the Term of this Agreement and for ninety (90) days
thereafter, each party (for purposes of this Section 4.3 only, the
"Auditing Party") shall have the right, not more than once in any twelve
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(12)-month period, to have the relevant books and records of the other
party (the "Audited Party") for the other party's immediately preceding
--------------
financial year audited by an independent certified public accountant chosen
by the Auditing Party, for the sole purpose of ascertaining the accuracy of
the Audited Party's reports under this Agreement, including without
limitation RoweCom's customer information reports to Xxxxxx.xxx. Each party
shall maintain accurate books and records relating to such matters. Such
audits shall be scheduled within thirty (30) days following delivery of a
notice by the Auditing Party to the Audited Party, and conducted during
normal business hours, in a manner that does not unreasonably interfere
with the Audited Party's normal business activities. The Auditing Party
shall require the auditor to execute a confidentiality agreement,
acceptable to the Audited Party, which shall prohibit the auditor from
disclosing any information ascertained from the audit to any party,
including the Auditing Party, for any purpose other than to confirm the
accuracy of the Audited Party's reports or to advise the Auditing Party of
any discrepancies discovered through the audit. In the event that any audit
determines that the reported payments paid to the Auditing Party under this
Agreement was less than the amount due to the Auditing Party, the Audited
Party shall promptly pay the Auditing Party the amount of such underpayment
and all accrued interest thereon from the date that such payment was due.
In addition, if any audit determines that the reported payments paid to the
Auditing Party under this Agreement was less than ninety percent (90%) of
the actual amount due to the Auditing Party for the period in question, the
actual out-of-pocket cost of such audit shall be borne by the Audited
Party; otherwise, the cost of the audit shall be borne by the Auditing
Party.
4.4. TAXES. All taxes and charges, other than income taxes, that may be imposed
by any governmental taxing authority on any sales of RoweCom Titles
pursuant to this Agreement shall be paid by the party assessed such taxes
or charges.
5. REPRESENTATIONS AND WARRANTIES
5.1. AUTHORIZATION, ETC. Each party hereby represents and warrants to the other
that: (a) it has the requisite power and authority to execute, deliver and
perform this Agreement and to consummate the transactions contemplated
hereby; (b) this Agreement has been duly authorized, executed and delivered
by such party, constitutes the legal, valid and binding obligation of such
party and is enforceable against such party in accordance with its terms,
except to the extent such enforceability may be limited by bankruptcy,
reorganization, insolvency or similar laws of general applicability
governing the enforcement of the rights of creditors or by the general
principles of equity (regardless of whether considered in a proceeding at
law or in equity); and (c) to the best of its knowledge, it has provided
the other party with the information known to it that materially affects
the other party's ability to perform the other party's obligations under
this Agreement.
5.2. NON-INFRINGEMENT. Each party hereby represents and warrants that (i) the
provision by such party of Intellectual Property to the other party
hereunder does not infringe upon or violate the intellectual property
rights or any other rights of any third party or violate any applicable law
or regulation; (ii) neither party has been charged or threatened with
11
infringement or violation of any intellectual property right or any other
rights of any person or entity in connection with the Intellectual Property
provided by such party to the other party hereunder; (iii) the Intellectual
Property and other information provided by each party (including without
limitation, the RoweCom Content, the RoweCom kStore, the RoweCom Link File,
the Xxxxxx.xxx Link File, the RoweCom Trademarks, and Xxxxxx.xxx Content)
to the other party hereunder will not contain any defects, viruses, worms,
date bombs, time bombs, or other code that is designed to damage,
interrupt, or interfere with any software or data of the other party; and
(iv) the RoweCom kStore and services provided to Xxxxxx.xxx Customers
therewith shall be conducted in a professional, timely and diligent manner,
and shall comply with all applicable laws and regulations. In addition,
RoweCom represents and warrants that the Intellectual Property and other
information that is provided by RoweCom (including without limitation, the
RoweCom Content, the RoweCom kStore, the RoweCom Link File, and the RoweCom
Trademarks) to Xxxxxx.xxx hereunder shall be year 2000 ready as set forth
in RoweCom's Year 2000 Readiness Disclosure, which is attached as Exhibit F
---------
(hereby incorporated by reference), and Xxxxxx.xxx represents and warrants
that the Intellectual Property and other information that is provided by
Xxxxxx.xxx (including without limitation the Xxxxxx.xxx Link File and the
Xxxxxx.xxx Content) to RoweCom hereunder shall be year 2000 compliant.
5.3. THIRD PARTY RIGHTS. Each party represents and warrants to the other party
that: (a) it is not bound by any agreement or obligation (and will not
enter into any agreement or obligation) that could materially interfere
with the performance of its obligations under this Agreement; and (b) no
approval, authorization or consent of any governmental or regulatory
authority is required to be obtained or made by it in order for it to enter
into and perform its obligations under this Agreement.
5.4. DISCLAIMER. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION 5, EACH
PARTY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE PRODUCTS AND SERVICES
CONTEMPLATED UNDER THIS AGREEMENT, INCLUDING IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR USE.
6. CONFIDENTIALITY
6.1. CONFIDENTIAL INFORMATION. "Confidential Information" means all financial,
business, marketing, operations, technical, and economic information,
whether tangible or intangible, that is disclosed by either party (the
"Disclosing Party") or any of Disclosing Party's suppliers, employees,
contractors or customers to the other party (the "Recipient"), if such
information is disclosed (i) in writing or by way of any other media that
is marked as "confidential" or "proprietary" information; (ii) orally or
visually, provided that, such oral or visual disclosure is followed by
written confirmation by the Disclosing Party within three (3) business days
of such disclosure; provided that (A) Confidential Information excludes any
information or portion thereof that (1) was known to the Recipient before
receipt thereof under this Agreement; (2) is disclosed to the Recipient by
a third person who has a right to make such disclosure without any
obligation of confidentiality to the Disclosing Party; (3) is or becomes
generally known in the trade or to the public without violation of this
Agreement by the Recipient; (4) is independently developed by the Recipient
or Recipient's employees, agents, or
12
contractors to whom the Disclosing Party's information was not disclosed;
or (5) is approved in writing by the Disclosing Party for release; and (B)
only the specific information that meets the exclusions shall be excluded,
and not any other information that happens to appear in proximity to such
excluded portions (for example, a portion of a document may be excluded
without affecting the confidential nature of those portions that do not
themselves qualify for exclusion); and (C) Confidential Information
includes summaries and other materials prepared by or on behalf of a
Recipient that restate, summarize or otherwise use any Confidential
Information of a Disclosing Party except to the extent that such summaries
and other materials qualify for exclusion under this Section.
6.2. NONDISCLOSURE AND LIMITATIONS ON USE. Each Recipient agrees (a) to keep
secret and maintain the Confidential Information as confidential and to
hold the Confidential Information in trust for the exclusive benefit of the
Disclosing Party; (b) to use or copy the Confidential Information solely to
perform its obligations under this Agreement; (c) to segregate the
Confidential Information from the Recipient's other information and from
that of third parties; (d) not to copy the Confidential Information unless
necessary to perform services under this Agreement; (e) to notify promptly
the Disclosing Party upon learning about any court order or other legal
requirement that purports to compel disclosure of any Confidential
Information and to cooperate with the Disclosing Party in the exercise of
the Disclosing Party's right to protect the confidentiality of the
Confidential Information before any tribunal or governmental agency; (f)
not to disclose the Confidential Information to any person or entity not a
party to this Agreement other than such of Recipient's contractors, agents
or employees who (i) have a need to know the Confidential Information for a
purpose permitted hereunder; and (ii) are apprised of the confidential
nature of the Confidential Information; and (g) subject to Section 7.3b, to
return promptly to the Disclosing Party or to destroy, at the option of the
Disclosing Party and at any time upon the Disclosing Party's request, any
and all materials containing Confidential Information. Each party shall (1)
promptly notify the other party of any actual or suspected unauthorized use
or disclosure of the other party's Confidential Information for a period of
two years from the date of termination of this Agreement of which it has
knowledge and will cooperate in the investigation of such unauthorized use
or disclosure; (2) be liable for breaches of confidentiality by its
employees, contractors or agents; and (3) include the other party's
reasonable proprietary rights notices on any media or products embodying
the other party's Confidential Information, including partial copies
thereof. Nothing contained herein shall prevent a Recipient from disclosing
the Disclosing Party's Confidential Information to any tribunal or
governmental agency, so long as the notice in this Section 6.2 is promptly
given; provided that, such disclosure shall not alter the status of such
-------- ----
information hereunder for all other purposes as Confidential Information
unless and until such information is actually made public by the tribunal
or agency.
6.3. Notwithstanding anything to the contrary herein, the RoweCom Content shall
be considered Confidential Information of RoweCom, and data relating to
Xxxxxx.xxx Customers or potential Xxxxxx.xxx Customers shall be considered
Confidential Information of Xxxxxx.xxx. RoweCom further acknowledges that
the SPIM and the Standard Partner Registration Interface Model ("SPRIM"),
and all SPIM- or SPRIM-related materials, are Confidential Information of
Xxxxxx.xxx; that such materials, as well as the Xxxxxx.xxx Site are and
shall remain the sole property of Xxxxxx.xxx; and
13
that RoweCom does not have nor will it acquire any rights therein by virtue
of this Agreement. RoweCom shall not disclose any Confidential Information
relating to the SPIM or SPRIM to any third party during the term hereof
(except to subcontractors as necessary to fulfill its obligations
hereunder, and in such event RoweCom shall require any such third party to
execute a confidentiality agreement containing disclosure restrictions at
least as strict as set forth this Section 6) or at any time thereafter.
7. TERM AND TERMINATION
7.1. Term. This Agreement shall commence upon the Effective Date and, subject to
early termination pursuant to Section 7.2, shall continue in effect until
the second anniversary of the Launch Date (the "Initial Term") and shall be
automatically renewed for successive one (1) year periods after the
expiration of the Initial Term unless either party provides the other party
with written notice of its intent not to renew this Agreement at least
ninety (90) days prior to the expiration of the then current term.
7.2. TERMINATION.
A. BREACH. Either party may terminate this Agreement upon thirty (30)
days' written notice to the other party if the other party breaches
any of its material obligations under this Agreement and such breach
remains uncured for a period of 30 days after receipt of such notice.
Any notice given pursuant to this Section 7.2 must set forth with
specificity the alleged material obligations breached by the other
party.
B. Either party may terminate this Agreement pursuant to Section 9.2.
C. This Agreement shall terminate automatically, with no further action
by either party, if (i) a receiver is appointed for either party or
its property, (ii) either party makes an assignment for the benefit of
its creditors, (iii) any proceedings are commenced by, for or against
either party under any bankruptcy, insolvency or debtor's relief law
for the purpose of seeking a reorganization of such party's debts, and
such proceeding is not dismissed within ninety (90) calendar days of
its commencement, or (iv) either party is liquidated or dissolved.
D. Either party (the "Terminating Party") may terminate this Agreement if
the other party completes a sale of all or substantially all of such
other party's assets, or any other transaction in which greater than
fifty percent (50%) of such other party's voting securities are
transferred, (a "Change of Control Transaction") to a Direct
Competitor (as defined in Exhibit D) of the Terminating Party, by
---------
giving such other party ninety (90) days advance written notice of
intent to terminate within the forty-five (45) day period immediately
following the earlier of either the effective date or the public
announcement of the Change of Control Transaction.
E. Notwithstanding any other provision of this Agreement, Xxxxxx.xxx may,
at any time following six (6) months after the Effective Date of this
Agreement, initiate good faith discussions with RoweCom regarding the
exclusive nature of this Agreement, by providing written notice to
RoweCom stating Xxxxxx.xxx's purposes for initiating such discussions,
which purposes may include without limitation competitive and product-
related issues. RoweCom shall, within thirty (30) days of receipt of
such notification, provide to Xxxxxx.xxx a written response setting
forth
14
the manner in which RoweCom intends to address Xxxxxx.xxx's concerns.
If the parties are unable to reach an agreement on the concerns raised
by Xxxxxx.xxx through good faith negotiations within forty-five (45)
after the receipt by Xxxxxx.xxx of RoweCom's written response, either
party may amend this Agreement to a non-exclusive Agreement for the
remainder of the then-current term.
7.3. EFFECT OF TERMINATION.
A. THEN-CURRENT ORDERS. Upon termination of this Agreement, the
provisions of Section 2, 3.1, and 3.2 regarding the obligations of
each party shall terminate, provided, however, that (a) the parties
-------- -------
will continue to perform all obligations relating to pending Initial
Orders or Renewal Orders in accordance with a schedule to be mutually
agreed upon by the parties no later than thirty (30) days after the
date of termination, and (b) RoweCom shall provide ongoing customer
service to Xxxxxx.xxx Customers at no less a level of service than it
provides to other RoweCom customers.
B. CONFIDENTIAL INFORMATION. Promptly after all obligations to existing
customers are performed pursuant to clause (a) hereof, each party
shall return to the other party or certify in writing to the other
party that it has destroyed all documents and other tangible items it
or its employees or agents have received from the Disclosing Party
which constitute Confidential Information of the other party;
provided, however, that for twelve (12) months following termination
of this Agreement RoweCom may retain information regarding Xxxxxx.xxx
Customers, solely for the purposes of fulfilling RoweCom's customer
support obligations set forth herein.
C. OTHER OBLIGATIONS. The provisions of Sections 4.1 (Payments) and 4.2
(Quarterly Statements) (solely with respect to payment obligations
accrued prior to termination); Section 4.3 (Audit Rights), Section 5
(Representations and Warranties), Section 6 (Confidentiality), Section
7 (Termination), Section 8 (Risk Allocation) and Section 9
(Miscellaneous) shall survive any expiration or termination of this
Agreement.
7.4. TERMINATION/NONRENEWAL RIGHTS ABSOLUTE. It is expressly understood and
agreed that the rights of termination and nonrenewal set forth in this
Section 7 are absolute, and that the parties have considered the
possibility of such termination or nonrenewal and the possibility of loss
and damage resulting therefrom, in making expenditures pursuant to the
performance of this Agreement. It is the express intent and agreement of
the parties that neither shall be liable to the other for damages or
otherwise solely by reason of the termination of this Agreement in
accordance with Section 7.1 or 7.2 above. The parties expressly agree that
the notice periods in this Agreement are reasonable under the contemplated
circumstances.
8. RISK ALLOCATION
8.1. Limitation of Liability. EXCEPT IN RESPECT OF THE PARTIES' RESPECTIVE
OBLIGATIONS UNDER SECTION 6 (CONFIDENTIALITY) AND CLAIMS ARISING UNDER
SECTION 8.3 OF THIS AGREEMENT (INDEMNIFICATION), IN NO EVENT SHALL EITHER
PARTY BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE,
CONSEQUENTIAL OR SIMILAR DAMAGES
15
OF ANY KIND (INCLUDING WITHOUT LIMITATION LOST PROFITS OR LOST REVENUES),
WHETHER SUCH LIABILITY IS PREDICATED ON CONTRACT, STRICT LIABILITY,
STATUTE, REGULATION, OR ANY OTHER THEORY. EACH PARTY SHALL BE LIABLE TO THE
OTHER PARTY FOR ANY DIRECT DAMAGES ARISING OUT OF OR RELATING TO ITS
PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT, PROVIDED THAT THE
TOTAL LIABILITY OF EITHER PARTY TO THE OTHER PARTY FOR DIRECT DAMAGES
SHALL, EXCEPT IN RESPECT OF THE PARTIES' RESPECTIVE OBLIGATIONS UNDER
SECTION 6 (CONFIDENTIALITY) AND CLAIMS ARISING UNDER SECTION 8.3 OF THIS
AGREEMENT (INDEMNIFICATION), BE LIMITED IN THE AGGREGATE TO THE AMOUNT PAID
AND/OR PAYABLE BY ROWECOM TO XXXXXX.XXX UNDER THIS AGREEMENT AT THE TIME
SUCH LIABILITY IS FINALLY DETERMINED OR FIVE HUNDRED THOUSAND DOLLARS
($500,000.00), WHICHEVER IS GREATER.
8.2. INJUNCTIVE RELIEF. The parties agree that the remedy at law for any breach
of the provisions of Sections 3.4, 5, and/or 6 of this Agreement shall be
inadequate and the non-breaching party shall be entitled to injunctive
relief in addition to any other remedies that may be available to the
non-breaching party.
8.3. INDEMNIFICATION.
A. OBLIGATION. Subject to the provisions of Section 8.3(b), each party
(each an "Indemnitor") hereby agrees to indemnify, defend and hold the
other party and its affiliates, directors, officers, employees,
contractors and agents (each an "Indemnitee") harmless from and
against any third party claim, suit, demand, liability, loss or
expense (including reasonable attorney fees) (collectively, "Losses")
arising out of or relating to the Indemnitor's breach of its
obligations, representations and warranties under this Agreement.
B. PROCEDURE. To receive the benefit of the foregoing indemnities, the
Indemnitee must promptly notify the Indemnitor in writing of a claim
or suit and provide reasonable cooperation (at the Indemnitor's
expense) and tender to the Indemnitor full authority to defend or
settle the claim or suit, provided, that the Indemnitor may not settle
--------
such claim or suit without the consent of the Indemnitee, which
consent shall not be unreasonably withheld. The Indemnitee shall have
the right to participate at its own expense in the claim or suit and
in selecting its own counsel therefor, provided that Indemnitee and
Indemnitee's counsel shall reasonably cooperate with Indemnitor in
defending such claim or suit. Neither party has any obligation to
indemnify the other party in connection with any settlement made
without the Indemnitor's written consent.
9. MISCELLANEOUS
9.1. Independent Contractors. For all purposes of this Agreement, each party
shall be and act as an independent contractor or and not as a partner,
joint venturer, employee or agent of the other. No franchise is created
hereby. Neither party shall have any express or implied right or authority
to assume or create any obligations on behalf of or in the name of the
other party or to bind the other party to any other contract, agreement or
16
undertaking with any third party except as specifically provided for
herein. The parties' use of the term "partner" or its equivalent is for
marketing purposes only, and shall have no effect on the legal relationship
between the parties hereto.
9.2. FORCE MAJEURE. Neither party shall be liable or responsible in any manner
for failure or delay in performance of any obligation under this Agreement
when such failure or delay is due to the result, in whole or in substantial
part, to any cause beyond the reasonable control of the party whose
performance is delayed or rendered impossible thereby if reasonable steps
are taken to resolve the reason for such failure or delay and the reason
for such failure or delay is promptly transmitted to the other party. If
the delay exceeds ninety (90) days from the initial occurrence each party
shall have the right to terminate this agreement upon thirty (30) days
prior written notice to the other party.
9.3. ASSIGNMENT. This Agreement and the provisions hereof shall be binding upon
and inure to the benefit of and be enforceable by the parties hereto and
their successors and assigns. RoweCom may not assign, transfer, or
sublicense its rights or obligations under this Agreement without prior
written consent of Xxxxxx.xxx. Notwithstanding the foregoing or any other
provision of this agreement, (a) RoweCom shall have the right to assign
this agreement and any rights hereunder, without Xxxxxx.xxx's consent, (i)
in connection with any merger, consolidation, any sale of all or
substantially all of RoweCom's assets or any other transaction in which
more than fifty percent (50%) of RoweCom's voting securities are
transferred, or (ii) to any subsidiary or affiliate of RoweCom (provided
that RoweCom shall provide written notice to Xxxxxx.xxx identifying such
subsidiary or affiliate); and (b) Xxxxxx.xxx shall have the right to assign
this agreement and any rights hereunder, without RoweCom's consent, (i) in
connection with any merger, consolidation, any sale of all or substantially
all of Xxxxxx.xxx's assets or any other transaction in which more than
fifty percent (50%) of Xxxxxx.xxx's voting securities are transferred, or
(ii) to any subsidiary or affiliate of Xxxxxx.xxx (provided that Xxxxxx.xxx
shall provide written notice to RoweCom identifying such subsidiary or
affiliate), or (iii) to the entity that either owns or manages the
Xxxxxx.xxx Site or its successors.
9.4. NOTICES. Any notices, waivers and other communications required or
permitted hereunder shall be in writing and shall be deemed to be fully
given when delivered by hand or dispatched (with reasonable evidence of
receipt) by confirmed facsimile transmission, or the next business day
after being dispatched by nationally-recognized overnight courier or mail
service, addressed to the party to whom the notice is intended to be given
at the following or such other address as either party may designate by
like notice:
RoweCom:
RoweCom, Inc.
000 Xxxxxxx Xxx.
Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxx, Xx.
Fax: 000-000-0000
17
Xxxxxx.xxx: Copy to:
Xxxxxx.xxx Inc. Xxxxxxx X. Xxxxxxx, Esq.
000 Xxxx Xxxxxx Xxxxx, 00xx Xx. Xxxxxx.xxx Inc.
Xxx Xxxx, XX 00000 000 Xxxx Xxxxxx Xxxxx, 00xx Xx.
Attention: Xxxxxxx X. Xxxxxx Xxx Xxxx, XX 00000
Fax: 000-000-0000 Fax: 000-000-0000
9.5. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with substantive laws of the State of New York, without regard
for any choice or conflict of law rule or principle that would result in
the application of the substantive law of any other jurisdiction. Any
dispute relating to or arising out of this Agreement shall be resolved by
a federal or state court located in the County of New York in the City of
New York, and each party hereby submits to the exclusive jurisdiction of
such court and explicitly waives any venue and inconvenient forum
objections thereto. The prevailing party shall be entitled to recover its
costs and expenses (including reasonable attorneys' fees) from the other
party.
9.6. SEVERABILITY. If any term or provision of this Agreement or the
application thereof to any person or circumstance shall to any extent be
invalid or unenforceable, the remainder of this Agreement or the
application of such term or provisions to persons or circumstances other
than those as to which it is held invalid or unenforceable shall not be
affected, and each term and provision of this Agreement shall be valid and
be enforced to the fullest extent permitted by law.
9.7. NO THIRD-PARTY BENEFICIARIES. No person(s) not a party to this Agreement
is an intended beneficiary of this Agreement, and no person(s) not a party
to this Agreement shall have any right to enforce any term of this
Agreement.
9.8. WAIVER. No provision of this Agreement shall be deemed to have been waived
unless such waiver is in writing signed by the waiving party. No failure
by any party to insist upon the strict performance of any provision of
this Agreement, or to exercise any right to remedy consequent upon a
breach thereof, shall constitute a waiver of any other provision of this
Agreement or a waiver of such provision with respect to any subsequent
breach, unless expressly provided in writing.
9.9. ENTIRE AGREEMENT. This Agreement contains the entire understanding between
the parties relating to the subject matter hereof and supersedes all prior
or contemporaneous oral or written agreements on the same subject matter.
9.10. COUNTERPARTS. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same agreement.
9.11. FURTHER ASSURANCES. Each of the party's covenants and agrees that,
subsequent to the execution and delivery of this Agreement and without any
additional consideration, it will execute and deliver any further legal
instruments and perform any acts which are or may become reasonably
necessary to effectuate the purposes of this Agreement.
18
9.12. CAPTIONS. Titles and headings in this Agreement are for convenience of
reference only and are not intended to be a part of or to affect the
meaning or interpretation of this Agreement.
9.13. AMENDMENTS. This Agreement may be modified or amended only by a document
duly executed on behalf of each Party.
SIGNATURE PAGE FOLLOWS
19
IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed by their duly authorized representative as of the date first written
above.
XXXXXX.XXX INC. ROWECOM INC.
By: ________________________________ By: ____________________________
Name:_______________________________ Name:___________________________
Title:______________________________ Title:__________________________
Partner Relations Manager:__________ Partner Relations Manager:______
20
EXHIBIT A
---------
KNOWLEDGE PRODUCTS PROVIDED BY ROWECOM AND SUBJECT TO EXCLUSIVITY
Subscriptions to serially published material in hard-copy format, such materials
to include only print subscriptions, magazines and journals, but excluding
research reports.
21
EXHIBIT B
---------
ROWECOM TRADEMARKS
[ROWECOME LOGO APPEARS HERE]
22
EXHIBIT C
---------
XXXXXX.XXX TRADEMARKS
XXXXXX.XXX - trade name and logo
[XXXXXX.XXX LOGO APPEARS HERE.]
23
EXHIBIT D
---------
ROWECOM DIRECT COMPETITORS:
. Xxxxxx.xxx
. Xxxxxxxxx Ltd.
. The Electronic Newsstand, Inc.
. Ebsco Industries, Inc.
. XxxXxxxx.xxx, Inc.
. NewSub Services, Inc.
. X.X. Xxx
. Swets and Zeitlinger, Inc.
. Wholly-owned subsidiaries of each of the above
XXXXXX.XXX DIRECT COMPETITORS:
. XxxXxxxx.xxx
. Xxxxxxxx.xxx
. Xxxxxxxxxxx.xxx
. VerticalNet
. XxxxxxxXxxx.xxx
. Xxxxxxx.xxx
. Xxxxxxxx.xxx
. Xxxxx.xxx
. XxXxx.xxx
. Wholly-owned subsidiaries of each of the above
24
EXHIBIT E
---------
RoweCom shall be responsible for: (a) providing warranties for Knowledge
Products offered or ordered through the RoweCom kStore equivalent to those it
provides elsewhere and consistent with industry standards, and shall have sole
responsibility for such warranties; (b) providing customer service and support
for users of the RoweCom kStore equivalent to that RoweCom provides to its other
customers and consistent with industry standards; (c) providing customers with
clear customer service contact information on the RoweCom kStore; (d) responding
to customer and Xxxxxx.xxx inquiries regarding the RoweCom kStore, Knowledge
Products, and customer purchases through the RoweCom kStore, with Xxxxxx.xxx
inquiries to be directed to the RoweCom Support Contact(s) set forth below; (e)
informing Xxxxxx.xxx in reasonable detail of the response to and resolution of
any customer or Xxxxxx.xxx inquiry within a reasonable time after its receipt;
and (f) cooperating with Xxxxxx.xxx in any further integration of RoweCom's
customer support services with those of Xxxxxx.xxx.
Without limiting any other provision of this Agreement, RoweCom shall respect
and maintain the privacy of Xxxxxx.xxx Customers and potential Xxxxxx.xxx
Customers, and shall not disclose information to any third party regarding such
customers without the express consent of such customers. RoweCom shall not make
any use of customer information except as expressly provided herein, or "spam,"
send unsolicited email to, or direct market to such customers, without in each
case the prior written approval of Xxxxxx.xxx. Notwithstanding the foregoing,
RoweCom may, without the prior written approval of Xxxxxx.xxx, provide RoweCom's
email update service to those Xxxxxx.xxx Customers who have expressly elected to
receive such email updates through the RoweCom kStore, provided that RoweCom
shall use best efforts to direct any Xxxxxx.xxx Customer or potential Xxxxxx.xxx
Customer in such email updates through the Xxxxxx.xxx Site.
RoweCom Support Contact(s) -
--------------------------
Name: Xxxxxx Xxxxxxxx
Phone: 000-000-0000
Email: xxxxxxxxx@xxxx.xxx
25
EXHIBIT F
---------
RoweCom Year 2000 Readiness Disclosure
RoweCom's overall systems and services are designed to be Year 2000 ready.
In 1998, RoweCom adopted a company-wide readiness program to:
. recognize and understand the Year 2000 requirements
. proactively identify all potentially affected elements of its
e-commerce solution
. plan the design and certification of in-house and third-party software
. assess the readiness of our strategic partners (e.g. banks,
publishers, etc.)
. test and qualify the readiness level of the final implementation
Since that time, approximately 20 RoweCom employees have been working on either
a full-time or part-time basis on Year 2000 readiness issues. This effort
encompasses all components of RoweCom's value chain, including catalog
management, e-commerce/EDI back-end software, distribution, fulfillment,
finance, and accounting.
ROWECOM HAS ASSESSED FOUR DIFFERENT AREAS SENSITIVE TO YEAR 2000:
IN-HOUSE INFORMATION TECHNOLOGY.
RoweCom has successfully tested and implemented a new application that handles
all client operations, including order processing and report generation.
Entirely developed and qualified by the Company's in-house engineering staff,
this application was designed from the start to be Year 2000 ready. All RoweCom
systems and servers have been checked for Year 2000 issues. Other services and
software have been written to be Year 2000 ready.
THIRD PARTY INFORMATION TECHNOLOGY.
In its relationship with third-party technology vendors, RoweCom has tried to
ensure that critical and non-critical software products used by all departments,
including finance and accounting, are Year 2000 ready. As a major step towards
readiness, RoweCom deployed a new release of the Navision accounting software in
the first quarter of 1998.
THIRD PARTY OPERATIONS AND STANDARDS.
An Electronic Data Interchange transaction system, also known in the industry as
"EDI," carries out RoweCom's transactions with publishers. This worldwide
industry standard is currently used by a wide range of very large companies.
RoweCom does not have any means to validate EDI Year 2000 readiness except
through simulation testing and participation in an EDI standard body. Because of
the large number of EDI solutions in the e-commerce world, the company believes
that the EDI system and the credit card processing system it currently uses are
Year 2000 ready. Testing based on credit card expiration dates with years of
2000 and later have not resulted in any Year 2000 errors.
As a RoweCom strategic partner, Banc One participates in RoweCom's integrated
Automated Clearing House (ACH) transaction system. As a member of the Federal
Reserve System, Banc One, is subject to the stringent Year 2000 readiness
requirements mandated by this system.
PUBLISHERS.
RoweCom has already processed numerous subscription orders that expire in the
next millennium and has experienced no difficulty with these processes so far.
The company is currently assessing the Year 2000 readiness of the publishers
from whom it purchases magazines, journals, newspapers and books. RoweCom's
catalog will include only Year 2000 ready entries. RoweCom cannot, however,
specifically qualify the date change impact on the multitude of production
systems used by the more than 15,000 publishers from whom it purchases
materials.
CONTINGENCY PLANS.
RoweCom believes that its services and systems will not experience any material
disruptions as the result of Year 2000 problems. In addition to the above
actions, RoweCom has developed formal contingency plans for all its business-
critical applications (excluding worldwide industry standards such as EDI and
ACH).
This is a "Year 2000 Readiness Disclosure" as defined in the Year 2000
Information and Readiness Disclosure Act, and is subject to the terms of that
act. It is for information purposes only, and not as a form of representation,
26
warranty, or guarantee of any kind. If you are a RoweCom customer, please refer
to your contract with RoweCom for a complete and exclusive statement of your
rights. (Please also recognize that many of our Y2K-related efforts are
dependent on third parties who are effectively beyond our control.)
If you have any questions on RoweCom's Year 2000 readiness program, send an e-
mail at xxxx0000@xxxx.xxx or contact your National Account Manager.
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