Exhibit 10.6
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AGREEMENT
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THIS AGREEMENT is made and entered into as of __________, 2000, by and
between Buildscape, Inc., a Florida corporation ("Buildscape"), and Wickes
Inc., a Delaware corporation (the "Lumber Company")
WITNESSETH:
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WHEREAS, Buildscape is developing and operating an Internet based
business intended to become a virtual community of building trades
professionals, their customers, their suppliers and their service providers
in the home construction and home improvement industry through its
websites, xxxxxxxxxx.xxx and xxxxxxxxxxXXX.xxx (the "Site") and through
other communications channels;
WHEREAS, Buildscape desires to explore with the Lumber Company various
business opportunities, including without limitation, the distribution of
building materials directly from local lumberyards;
WHEREAS, the Lumber Company is a leading full-line building materials
and finishing products retailer;
WHEREAS, the Lumber Company desires to develop a relationship whereby
customers of the Lumber Company may use a uniquely branded version of the
Site and the internet for, among other things, placing orders for building
materials and products in designated geographic areas; and
WHEREAS, Buildscape and the Lumber Company intend this Agreement,
among other things, (i) to reflect their initial relationship and their
respective roles in the Lumber Company Site through a pilot period and (ii)
to be modified as described herein upon completion of the pilot period to
reflect more fully the final terms of such relationship and roles.
NOW, THEREFORE, as consideration for the promises and mutual covenants
and agreements contained herein, the parties hereto hereby agree as
follows.
Section 1. Definitions.
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As used herein, the following terms shall have the following meanings:
"Affiliate" shall mean, with respect to a party, any Person that,
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directly or indirectly, Controls, or is Controlled by, or is under common
Control with, such party.
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"Agreement" shall mean this Agreement, together with the schedules
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attached hereto.
"BOSS" shall have the meaning given to it in Subsection 2.1 hereof.
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"Buildscape" and "BuildscapePRO" shall have the meanings set forth in
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the preamble hereto.
"Buildscape Trademarks" shall mean those Trademarks owned or licensed
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and utilized or utilizable by Buildscape in the course of its business and
identified in writing from time to time by Buildscape to the Lumber
Company.
"Confidential Information" means information regarding the terms of
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this Agreement and all trade secrets, know-how and nonpublic information
that relates to research, development, trade secrets, know-how, inventions,
source codes, technical data, software programming, concepts, designs,
procedures, manufacturing, purchasing, accounting, engineering, marketing,
merchandising, selling, business plans or strategies and other proprietary
or confidential information.
"Control" shall mean the possession, directly or indirectly, of the
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power to direct or cause the direction of the management and policies of a
Person, whether by contract or through the ownership of voting securities,
including the ownership of more than fifty percent (50%) of the equity,
partnership or similar interest in such Person.
"Customer Area" shall mean, with respect to the Lumber Company or an
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Other Lumberyard, the total geographical area served by the retail
distribution facilities operated at the time of determination by the Lumber
Company or such Other Lumberyard. For this purpose, a distribution facility
shall be conclusively presumed to serve the area comprised within a 50-mile
radius of such facility.
"Derivative" means (i) any enhancement, improvement or modification or
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(ii) any "derivative work" (as such term is defined in the U.S. Copyright
Act, as amended from time to time).
"Initial Term" shall have the meaning set forth in Section 10 hereof.
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"Internet" means the Internet or the World Wide Web (or any successor
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or other online network including those using delivery over television,
cable, set top boxes, intranets, extranets and personal digital
assistants).
"Internet Lumber Operations" shall mean the sale over the Internet of
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building materials and products which are the same as or competitive with
Lumberyard Products or National Catalog.
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"IPR" means any copyright, Trademark, patent, trade secret, or other
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intellectual property or proprietary right of any kind (including
applications therefor and, in the case of patents, any continuation or
divisional patent applications claiming priority thereto), whether arising
under the laws of the United States or any other nation, state or
jurisdiction (including any foreign equivalents thereto).
"Lumber Company" shall have the meaning set forth in the preamble
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hereto.
"Lumber Company Customer Area" shall mean the Customer Area of the
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Lumber Company.
"Lumber Company Customer Data" shall have the meaning given to it in
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Subsection 7.1 hereof.
"Lumber Company Customers" shall mean current customers of the Lumber
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Company and customers registering on the Site and assigned to the Lumber
Company.
"Lumber Company Site" shall have the meaning given to it in Subsection
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2.1 hereof; provided, however, that this term shall not be deemed to refer
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to any non-commerce Internet site operated or utilized by the Lumber
Company otherwise than in conjunction with Buildscape under this Agreement.
"Lumber Company Trademarks" shall mean those Trademarks owned or
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licensed and utilized or utilizable by the Lumber Company in the course of
its business and identified in writing from time to time by the Lumber
Company to Buildscape.
"Lumberyard Products" are products inventoried, sold and shipped by
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the Lumber Company.
"National Catalog Products" are products sold and shipped by
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Buildscape.
"Offline Lumberyard" shall mean any Person primarily engaged in the
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non-Internet sale of Lumberyard Products to building professionals or end
users.
"Other Lumberyards" shall have the meaning given to it in Subsection
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4.2 hereof.
"Other Lumberyard Internet Agreement" shall have the meaning given to
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it in Subsection 4.2 hereof.
"Person" shall mean any individual, corporation, partnership, limited
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liability company, trust, association or other entity or organization,
including any governmental or political subdivision or any agency or
instrumentality thereof.
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"Pilot Period" shall mean the period beginning on the date hereof and
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ending on the earlier to occur of (i) the first anniversary of the date
hereof, (ii) the date the Relationship Managers agree pursuant to
Subsection 3.2 hereof that the Lumber Company Site is ready to be provided
to additional markets or (iii) the date the parties agree to terminate this
Agreement.
"Relationship Managers" shall have the meaning given to it in
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Subsection 5.3 hereof.
"Site" shall have the meaning set forth in the preamble hereto.
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"Third Party" shall mean any Person that is not a party hereto or a
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wholly owned Affiliate of a party hereto.
"Trademark(s)" means all common law or registered trademarks, logos,
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service marks, trade names, Internet domain names and trade dress rights
and similar or related rights arising under any of the laws of the United
States or any other country or jurisdiction, whether now existing or
hereafter adopted or acquired.
Section 2. General.
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2.1 General Agreements of the Parties. Buildscape and the Lumber
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Company desire to explore the feasibility of developing and operating a
uniquely branded version of the Site (the "Lumber Company Site") that will
be the Lumber Company's primary direct Internet presence for Lumber Company
Customers for the purposes of (i) attracting home building, remodeling,
home improvement, decorating, home management, property management,
restoration and light construction trade professionals and do-it-
yourselfers to participate in the Site's on-line community and (ii) selling
over the Internet National Catalog Products and Lumberyard Products. The
parties contemplate that the features and functions of the Site would
generally provide for:
[CERTAIN CONFIDENTIAL MATERIAL HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE S.E.C. PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT ]
2.2 Collaboration. Buildscape and the Lumber Company will
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collaborate to develop the look, feel and functionality of the Lumber
Company Site, subject to constraints imposed by Buildscape's design
intentions, support requirements and technology architecture, making it
accessible by current and potential Lumber Company Customers.
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2.3 Maintenance of the Lumber Company Site. Once developed, it is
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contemplated that Buildscape would use reasonable best efforts to maintain
the Lumber Company Site in order that availability, reliability, security
and response time meet the then current generally accepted standards for
business to business e-commerce sites on the World Wide Web.
2.4 General Guidelines. Buildscape and the Lumber Company currently
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contemplate that the Site and the Lumber Company Site would be generally
operated in accordance with the guidelines set forth on Schedule 1 hereto.
The parties agree to use their reasonable best efforts to reach specific
agreement on all aspects of the matters described on such schedule and to
enter into an amendment to this Agreement reflecting such agreements on or
prior to completion of the Pilot Period, subject to the terms of the
termination provisions stated in Subsection 11.2 hereof.
2.5 Technology Integration. The integration of the Lumber Company's
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and Buildscape's information systems and the development of a highly
integrated computer interface, including business rules and data formats
for the purposes of conducting product transactions through the Lumber
Company Site will generally take place in accordance with the mutually
agreed terms that will be incorporated in the amendment to this Agreement
contemplated by Subsection 2.4 hereof. Each party will pay its own costs
associated with such technology integration. Each party will provide all
necessary technical support on an on-going basis in order to maintain and
enhance the technical interface contemplated hereby.
Section 3. Pilot Program and Deployment.
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3.1 Pilot Program. The Lumber Company and Buildscape agree to
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identify, within 30 days of the date hereof, a market from among those
markets currently served by the Lumber Company to be used as the Pilot
Market. Buildscape will use good faith efforts (i) to commence a limited
pilot program in this market within 120 days of the date hereof, consisting
of selected Lumber Company Customers and features of the Lumber Company
Site and with the intent to deploy the Lumber Company Site in such a way as
to gain a detailed understanding, among other things, of the needs of such
customers, the relative attractiveness of various features of the Lumber
Company Site to such customers, the economics of the relationships
contemplated hereby, and the nature and extent of the interface and
integration required for full functionality of the Lumber Company Site; and
(ii) to test, revise as necessary and make ready for deployment to all
Lumber Company Customers in the test market all features of the Lumber
Company Site within 210 days of the date hereof. It is currently
contemplated that the limited pilot program will be commenced in February
2000 and completed in July 2000.
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3.2 Deployment. After the Lumber Company Site has become fully
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operational and made available to all Lumber Company Customers in the test
market area, and when the Relationship Managers agree the parties are ready
to provide the Lumber Company Site to additional markets, a schedule will
be established to identify the order in which the Lumber Company markets
will be given access to the Lumber Company Site, and the responsibilities
of each party to achieve that goal. This schedule will be incorporated in
a written document signed by the parties and attached to, and made a part
of, this Agreement as a schedule hereto. Prior to commencement of the
activities contemplated on such schedule, the parties will enter into the
amendment to this Agreement contemplated by Subsection 2.4 hereof
3.3 Reasonable Best Efforts. The parties agree that to a great
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extent, the complete development and implementation of currently planned
features and functions of the Lumber Company Site, and full enhancement of
the Site and the Lumber Company Site in the future, will require a close,
working relationship and significant input and contribution from the Lumber
Company of management efforts, capital expenditures, sales initiatives and
the Lumber Company Customer Data. In this regard, the parties intend to
use their reasonable best efforts to maximize the attractiveness, appeal
and reputation of the Lumber Company Site.
Section 4. Relationships and Restrictions.
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4.1 Lumber Company. During the term of this Agreement, the Lumber
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Company shall not directly engage on its own behalf in Internet Lumber
Operations, shall utilize the Lumber Company Site as its sole Internet
presence for Internet Lumber Operations, and shall not promote any other
Internet site for Internet Lumber Operations. The Lumber Company
acknowledges and agrees that the development, construction, programming and
hosting of the Lumber Company Site involves significant investment by
Buildscape and is being undertaken in reliance upon the representation by
the Lumber Company that it will maintain a continued economic relationship
with Buildscape pending successful completion of the Pilot Market effort
and substantially as set forth in this agreement. Nothing herein shall
restrain the Lumber Company from selling products through, or providing
related product support for, other third party Internet sites.
4.2 Buildscape. During the term of this Agreement, Buildscape agrees
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that Buildscape will use the Lumber Company exclusively for fulfilling
local deliveries of Lumberyard Products in the Lumber Company Customer Area
subject to the conditions set forth below. Nothing contained in this
Agreement shall prohibit Buildscape from entering into and performing any
agreement with other lumberyards for Internet Lumber Operations (an "Other
Lumberyard Internet Agreement", and such lumberyards "Other Lumberyards")
within the Lumber Company Customer Area; provided that (i) Buildscape will
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use good faith efforts to select such Other Lumberyards so as to minimize
the extent to which the Lumber Company and any Other Lumberyard would serve
the same customer territories, while seeking to provide service to as much
of the United States as possible, and (ii) Buildscape may not enter into an
Other Lumberyard Internet Agreement with an Other Lumberyard whose Customer
Area includes more than 20% of the Lumber Company Customer Area without
obtaining the consent of the Lumber Company, which may be withheld in the
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Lumber Company's sole discretion. Subject to the foregoing sentence, both
parties acknowledge that some overlap of customer territories will occur
between the Lumber Company and Other Lumberyards.
4.3 Promotional Activities. (a) During the term of this Agreement,
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the Lumber Company will not promote the Internet Lumber Operations of any
Person other than Buildscape.
(b) Buildscape shall not display the Trademark of any Person
primarily engaged in operations competitive to those conducted by the
Lumber Company within the Lumber Company Site.
4.4 Nature of Relationship. The parties are independent contractors
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under this Agreement. Each party acknowledges and agrees that it is not and
will not be during the term of this Agreement an employee or an agent of
the other party. Nothing in this Agreement will be deemed to constitute,
create, give effect to or otherwise recognize a joint venture, partnership,
franchise or business entity of any kind. Nothing in this Agreement will be
construed as providing for the sharing of profits or losses arising out of
the efforts of the parties hereto.
Section 5. Relationship Modification Process.
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5.1 Intentionally Omitted.
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5.2 Area Liaisons. (a) The parties shall each appoint liaisons in
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each of the following areas: (i) information technology, (ii) finance,
(iii) merchandising, (iv) distribution, (v) marketing, (vi) operations, and
(vii) customer recruiting (the "Area Liaisons"). The respective Area
Liaisons shall be available to meet on an ad hoc basis to oversee and
address issues, interpretations of this Agreement and business rules,
complaints and expansion of the relationship contemplated by this
Agreement. All of the Area Liaisons shall meet, either in person or by
teleconference, at least once each calendar quarter to discuss
opportunities, general strategies and goals of the parties with respect to
the Site.
(b) All recommended changes to the relationship contemplated hereby,
after appropriate study and discussion, shall be forwarded in writing by
the Area Liaisons to the Relationship Managers. In addition, any dispute
not resolved by the Area Liaisons after appropriate discussion shall be
referred to the Relationship Managers for resolution.
5.3 Relationship Manager. (a) Each party shall appoint a senior
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executive officer to oversee and have overall responsibility for the
administration of this Agreement and the business relationship contemplated
by this Agreement (the "Relationship Manager"). The Relationship Managers
shall meet, either in person or by telephone conference, as needed and in
no event less than once each month.
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(b) The Relationship Managers shall consider proposed changes or
modifications to the relationship contemplated hereby. All decisions of
the Relationship Managers shall be reflected in a written amendment to
either the process manual (to be mutually developed by the parties) or this
Agreement, signed by the Relationship Managers. Any dispute not resolved
by the Relationship Managers will be subject to the dispute resolution
procedures set forth in Section 16 hereof.
Section 6. Compensation.
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The respective compensation of Buildscape and the Lumber Company
hereunder is described on Schedule 2 hereto.
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Section 7. Data; Reports and Records; Audit Procedures.
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7.1 Historical Data Sharing. The Lumber Company will, to the extent
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reasonably possible, develop and share with Buildscape the Lumber Company
Customer account data and profiles, including but not limited to previous
buying patterns, knowledge of their building activity, average number of
projects, average project costs and other information ("Lumber Company
Customer Data"), to aid in the initial development of customer profiles for
the Lumber Company Site. The Lumber Company will share such the Lumber
Company Customer account data and profiles on a market by market basis in
preparation for, and reasonably in advance of, introducing new geographic
markets to the Lumber Company Site.
7.2 Data Ownership. The Lumber Company and Buildscape will, as
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between one and the other, own the Lumber Company Customer Data as follows:
(1) the Lumber Company will own all the Lumber Company Customer Data
relating to the Lumber Company Customers who place their orders with the
Lumber Company other than through the Lumber Company Site; (2) the Lumber
Company and Buildscape will own jointly all the Lumber Company Customer
Data relating to the Lumber Company Customers whose orders are placed
through the Lumber Company Site; and (3) Buildscape will own all the Lumber
Company Customer Data as it specifically relates to orders placed by the
Lumber Company Customers through versions of the Site other than the Lumber
Company Site.
7.3 Reports. Buildscape shall furnish to the Lumber Company
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quarterly reports regarding Lumber Company Customers in such form and
containing such information as to which the parties may reasonably agree.
Buildscape shall keep true and complete records of all transactions and
correspondence with Lumber Company Customers. Such records and all
accounting records of Buildscape pertaining to the Lumber Company Customers
hereunder may be examined by representatives of the Lumber Company, whether
during or after the term of this Agreement, during normal business hours
upon reasonable advance written notice and subject to the Buildscape's
reasonable security and confidentiality provisions.,
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7.4 Audit Procedures. (a) The Lumber Company will be entitled, once
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during any six-month period (except as provided below), to audit, at the
Lumber Company's expense, Buildscape's records with respect to sales to the
Lumber Company Customers through the Lumber Company Site to ensure that
the fees paid to the Lumber Company pursuant to this Agreement are
accurate. Buildscape will be entitled, once during any six-month period
(except as provided below), to audit, at Buildscape's expense, the Lumber
Company's records with respect to sales to the Lumber Company Customers
through the Lumber Company Site to ensure that the fees paid to Buildscape
pursuant to this Agreement are accurate. If a party discovers a Material
Discrepancy, (i) then the party causing the audit will be reimbursed by the
other party for all reasonable costs of the audit, including costs of any
reimbursement to the other party, and (ii) such party will be entitled to
conduct the audits contemplated by this Section 7.4 once during any three-
month period until two consecutive audits have been conducted without the
discovery of any Material Discrepancy. All amounts discovered in the audit
and agreed to that are less or more than the contracted amount, will be
paid to the appropriate party within five days of agreement as to the
difference and will bear interest at a rate of one and one-half percent
(1.5%) for each whole month after the payment was due, or such lesser
amount necessary to comply with all applicable laws.
(b) The audits contemplated by this Subsection 7.4 shall only be
conducted upon reasonable advance written notice and subject to the other
party's reasonable security and confidentiality provisions. The parties
agree to cooperate with each other in these reviews, furnish the other with
reasonably requested information in a timely manner, and provide the other
with reasonably timely access to personnel during normal business hours for
audit purposes at no charge; provided, however, that a party may charge the
other for its reasonable costs for any technical resources or extraordinary
personnel time required by the other and necessary for such audit or
verification report.
(c) A "Material Discrepancy" in fees paid to the Lumber Company or
Buildscape will be deemed to occur if the total amount of fees due a party
based on the audit report exceeds the amount of fees actually paid by the
other party by five percent (5%) or more. If a party discovers a Material
Discrepancy, after reviewing applicable supporting documentation, the
parties will promptly attempt to agree on such analysis. If it is agreed a
Material Discrepancy occurred, then the party causing the audit shall be
reimbursed by the other party for all reasonable costs of the audit,
including costs of any reimbursement to the other party for technical
resources or extraordinary personnel time, as described in (a) and (b)
above. In all other circumstances, the auditing party will bear the costs
of audits performed by or at its direction. If the parties are unable to
agree, the parties will follow the dispute resolutions found in Section 16
hereof.
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(d) Any amounts discovered in the audit that are less or more than
the contracted amount, and that are not disputed, will be paid to the
appropriate party within 5 days of agreement as to the difference.
7.5 Confidentiality of Customer Data. Except as provided in this
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Section 7, Buildscape will neither transmit nor disclose the Lumber Company
Customer Data owned by the Lumber Company or jointly owned by Buildscape
and the Lumber Company to any third party, including Other Lumberyards, or
permit such data to be utilized in any manner by any Other Lumberyard.
Buildscape may utilize the Lumber Company Customer Data owned by the Lumber
Company or jointly owned by Buildscape and the Lumber Company for the
purposes of marketing various products and services to the Lumber Company
Customers, provided that such the Lumber Company Customer Data, to the
extent that it particularly identifies a customer, is not disclosed to any
third parties and such products and services are not being offered directly
by Other Lumberyards to the Lumber Company customers. Additionally,
Buildscape may use aggregate and statistical information and otherwise use
the Lumber Company Customer Data for any purpose so long as such data does
not identify the Lumber Company or a Lumber Company Customer. This Section
7 shall survive the termination of this Agreement.
Section 8. Trademark and Technology License.
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8.1 Xxxxxxxxxx Xxxxx. Buildscape hereby grants to the Lumber Company
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and any of its wholly owned entities a non-exclusive, royalty-free,
worldwide license in all jurisdictions in which Buildscape has any rights,
to use, reproduce, distribute and display the Buildscape Trademarks as
authorized in this Agreement, subject to mutual agreement of the parties
hereto.
8.2 Lumber Company Grant. The Lumber Company hereby grants to
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Buildscape a non-exclusive, royalty-free, worldwide license in all
jurisdictions in which the Lumber Company has any rights, to use,
reproduce, distribute and display the Lumber Company Trademarks as
authorized in this Agreement, subject to mutual agreement of the parties
hereto.
8.3 Quality Control. Each party will have the right to exercise
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quality control over the use of its Trademarks by the other party to the
degree necessary, in the sole opinion of the owner of such Trademarks, to
maintain the validity and enforceability of such Trademarks and to protect
the goodwill associated therewith. Each party will, in its use of the
other's Trademarks, adhere to a level of quality at least as high as that
used by such party in connection with its use of its own Trademarks. If the
owner of a Trademark, in its reasonable opinion, finds that use of such
Trademark by the other party materially threatens the goodwill of such
Trademark, the user of such Trademark will, upon notice from the owner,
immediately, and no later than ten (10) days after receipt of such owner's
notice, take all measures reasonably necessary to correct the deviation(s)
or misrepresentation(s) in, or misuse of, the applicable Trademark.
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8.4 Use. Each party shall use the other's Trademarks in
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accordance with sound trademark and trade name usage principles and in
compliance with all applicable laws and regulations of the United States
(including all laws and regulations relating to the maintenance of the
validity and enforceability of such Trademarks) and will not use the
Trademarks in any manner that might tarnish, disparage, or reflect
adversely on the Trademarks or the owner of such Trademarks. Each party
shall use, in connection with the other's Trademarks, all legends, notices
and markings required by law. No party may materially alter the appearance
of another's Trademarks in any advertising, marketing, distribution, or
sales materials, or any other publicly distributed materials without the
prior written consent of the other party.
8.5 Lumber Company IPR License. Lumber Company hereby grants to
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Buildscape, to the extent it is permitted to do so under applicable law and
agreements, if any, pursuant to which the Lumber Company has acquired such
content, a non-exclusive, non-sublicenseable, royalty-free, worldwide
license to reproduce, distribute, publicly perform, publicly display and
digitally perform and prepare Derivative works of all Content in
conjunction with the Site or the Lumber Company Site where such Content:
(i) has been included at any time in the Site or Lumber Company Site or
(ii) has been included in any IPR subject to Joint IPR Rights. As used
herein "Content" means all text, pictures, sound, graphics, video and other
data supplied by Lumber Company to Buildscape pursuant to this Agreement),
as such Content may be modified from time to time.
Section 9. Intellectual Property.
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9.1 Preexisting Property. All IPR owned by a party prior to the date
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of this Agreement will remain the sole property of such party.
9.2 Developed Property. (a) All IPR created solely by one party
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(the "Sole IP Rights") in connection with its activities under this
Agreement will be owned by such party.
(b) All IPR created jointly by both parties (the "Joint IP Rights")
in connection with their activities under this Agreement will be jointly
owned by both parties and each party will be free to exploit such Joint IP
Rights without accounting to the other, provided, however, that all
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modifications, enhancements, revisions, Derivative works or other changes
(collectively "Changes") made solely by either party to any IPR that
originally was subject to Joint IP Rights shall be subject only to
Sole IP Rights and the other party shall have no rights to such Changes
under this Agreement or otherwise.
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(c) Notwithstanding Subsections 9.1 and 9.2 hereof, in the event that
Buildscape develops, solely or jointly, any modifications, improvements or
enhancements to the Site and/or the Lumber Company Site, including all
computer hardware and software interface technology and related
specifications which enable the Site and/or the Lumber Company Site to
interface or communicate with the Lumber Company's information systems, and
any training materials related to the Site and/or the Lumber Company Site
("Site Improvements"), all IPR in and to such Site Improvements shall be
owned solely by Buildscape and considered Buildscape's Sole IP Rights, and
the Lumber Company hereby assigns all right, title and interest it may have
in such IPR to Buildscape. The Lumber Company will provide Buildscape with
all reasonable assistance to perfect and otherwise enforce Buildscape's
rights in the Site Improvements.
9.3 Protection of Joint IP Rights. The parties will cooperate in
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developing a strategy for identifying and protecting, prosecuting and
maintaining the Joint IP Rights, including registering or applying for
patent, utility model or copyright rights ("Filings") to protect or perfect
rights in and to such Joint IP Rights. All costs incurred by the parties
directly in connection with the making and prosecution of such Filings and
maintenance of Joint IP Rights will be borne equally by the parties. Each
party will cooperate and supply any information that is reasonably
necessary to assist the other in the preparation, filing and prosecution of
documentation necessary to protect the Joint IP Rights. Such cooperation
will include the execution of any and all documentation necessary to
properly complete any Filing. In the event that either party declines to
protect any specific Joint IP Right, then the other party may, in its sole
discretion, take whatever action it deems appropriate at its sole cost and
expense, including making such Filings as it deems appropriate, to protect
any aspect of the Joint IP Rights in the name of such party as sole owner
of such Joint IP Rights.
All other Joint IP Rights, and especially those in the nature of trade
secrets, will be identified specifically by the parties and appropriate
measures adopted to safeguard the value thereof. The parties may issue
instructions to guide the handling of all Joint IP Rights constituting
trade secrets which will be reasonable under the circumstances. In any
event, each party will be obliged to treat these Joint IP Rights in
accordance with the same degree of care such party uses to protect its own
trade secrets, but in any event not less than a reasonable degree of care.
9.4 Enforcement of Rights in Joint Intellectual Property. (a) If
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either party believes that any Joint IP Right is being infringed or is
being misused by a third party, such party will promptly notify the other
party of such infringement or misuse. If, within sixty (60) days from the
date such notice is received, the parties agree that action is warranted,
the parties will cooperate in the filing and maintenance of a claim,
demand, investigation, suit or other proceeding (an "Action"), as
appropriate, regarding such infringement or misuse. Each of the parties
will bear its own internal costs and expenses in connection with the filing
and prosecution of such Action, and out-of-pocket fees and expenses will be
borne equally by the parties. All damages, profits, awards and royalties
obtained by the parties in connection with such Action will be shared
equally.
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(b) If either party declines to participate in, or the parties are
unable to agree on, the filing or prosecution or an Action relating to any
Joint IP Right within such sixty (60) day period, then the other party (the
"Participating Party") may proceed in its sole discretion and at its sole
expense to file and prosecute such Action for infringement or misuse in its
own name or, if required by law, jointly with the other party and in such
event the Participating Party is hereby authorized to take action in the
name of the other party as well; provided however, that if the
Participating Party takes action in the name of the other party, the
Participating Party will indemnify and hold the other party harmless from
and against any and all monetary damages, fines, fees, penalties,
obligations, deficiencies, losses and out-of-pocket expenses that the other
party incurs or is subject to directly as a result of such Action. The
Participating Party will receive for its sole benefit any damages, profits,
awards and royalties recoverable for such infringement or misuse as the
result of such Action.
(c) If both parties initially agree to mutually prosecute any Action
relating to any Joint IP Right, either party may elect at any time to
settle or withdraw for any reason from the prosecution of such Action;
provided, however, the settling party will not as part of any settlement
grant a license in the Joint IP Right which renders the Action moot. In
such circumstance, the withdrawing or settling party, as the case may be,
will bear one-half (1/2) of the total out-of-pocket fees and expenses
incurred in pursuing such Action up to the time of withdrawal or
settlement. Going forward, the continuing party will bear all of the fees
and expenses incurred for such Action and may proceed in its sole
discretion to prosecute, settle (including licenses granted in connection
therewith) or discontinue prosecution of such Action. Any damages,
profits, awards and royalties recovered or to be recovered for such Action
will be apportioned between the parties in direct proportion to the ratio
of each party's out-of-pocket fees and expenses compared to the total out-
of-pocket fees and expenses of both parties and taking into account any
benefits recovered by the non-continuing party as the result of any
settlement.
Section 10. Term of Agreement.
------------------
This Agreement will be effective from the date of this Agreement and
shall continue for a period ending on the fourth anniversary of the date
hereof (the "Initial Term") and shall automatically be extended and renewed
for subsequent consecutive renewal terms of one calendar year each unless
this Agreement is terminated pursuant to Section 11 hereof.
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Section 11. Termination.
------------
11.1 On Expiration. Upon not less than ninety (90) days' prior
---------------
notice to the other party, either the Lumber Company or Buildscape may
terminate this Agreement effective on expiration of the Initial Term or any
renewal term.
11.2 Pilot Period. By notice given to the other party within 30 days
-------------
after completion of the Pilot Period, either the Lumber Company or
Buildscape may terminate this Agreement effective on the date set forth in
such notice, which shall be at least 30 days and no more than 60 days after
the date such notice is given.
11.3 Bankruptcy, etc. Effective immediately upon notice to the other
----------------
party, either the Lumber Company or Buildscape may terminate this
Agreement, without penalty, upon the receivership or bankruptcy of the
other party.
11.4 Breach. Upon any material breach of the provisions hereof by
-------
Buildscape or the Lumber Company, the Lumber Company or Buildscape,
respectively, may upon notice to the other party giving the reasons
therefor and indicating that the other party has 30 days within which to
remedy the breach terminate this Agreement upon expiration of such 30-day
period; provided, that if such breach is remedied within such period, this
---------
Agreement will remain in full force and effect as though no breach had
occurred.
11.5 Violation of Law. Either party, in its sole discretion, may
------------------
terminate at any time this Agreement immediately upon notice to the other
in the event it is conclusively and non-appealably determined by a court or
administrative agency with jurisdiction in the matter, that either this
Agreement or the conduct of the other party pursuant hereto violates, in
any respect that would have a materially adverse effect on such party or
the relationship contemplated hereby, any applicable federal, state, or
local law.
11.6 Continuation of Obligations. Notwithstanding the termination of
----------------------------
this Agreement, the obligations and provisions contained in Sections 7, 9,
and 11 through 18 hereof shall survive and shall continue in full force and
effect after any such termination.
11.7 Effect on Licenses. Upon termination of this Agreement all
--------------------
licenses granted pursuant to this Agreement shall terminate.
11.8 Site Software. In the event this Agreement is terminated
---------------
pursuant to Subsection 11.1 hereof or by the Lumber Company pursuant to
Subsection 11.4, then Buildscape will grant the Lumber Company a license to
use the computer software ("Site Software") owned by Buildscape, or if not
owned by Buildscape to the extent Buildscape is permitted to grant such
license without cost, and required for the operation of the Lumber Company
Site, to enable the Lumber Company to operate and maintain the Lumber
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Company Site for a transition period of up to 120 days. The Lumber Company
---
shall prior to commencement of such license agree to pay Buildscape a
reasonable fee (which shall not be less than any prevailing fee charged by
Buildscape at the time to Third Parties for similar licenses). The Lumber
Company may not use the Site Software for any other purpose (including,
creating versions of the Site for any Third Party) other than operation of
the Lumber Company Site. The Lumber Company acknowledges that the Site
Software may not constitute all software required to operate and maintain
the Lumber Company Site, and the Lumber Company will be required to obtain
the rights to use any other required software from the owner thereof.
Section 12. Representations and Warranties.
-------------------------------
12.1 Representations and Warranties of Buildscape. Buildscape hereby
---------------------------------------------
represents and warrants to the Lumber Company as follows:
(i) Authorization. All corporate action on the part
--------------
of Buildscape, its officers, directors and stockholders necessary for
the authorization, execution and delivery of this Agreement, and the
performance of all obligations of Buildscape hereunder has been taken,
and this Agreement, when executed and delivered by Buildscape, will
constitutes valid and legally binding obligation of Buildscape,
enforceable against Buildscape in accordance with its terms.
(ii) Intellectual Property. Buildscape owns or
-----------------------
possesses sufficient legal rights to all IPR necessary for its
business as now conducted without any conflict with, or infringement
of, the rights of others. Buildscape has not received any written
communications alleging that any Buildscape IPR have violated or would
violate any of the IPR of any Third Party. Buildscape is not aware
that any of its employees is obligated under any contract or other
agreement, or subject to any judgment, decree or order of any court or
administrative agency, that would interfere with such employee's
ability to promote the interests of Buildscape or that would conflict
with Buildscape's business. Neither the execution, delivery or
performance of this Agreement, nor the carrying on of Buildscape's
business as now conducted by the employees of Buildscape, will
conflict with or result in a breach of the terms, conditions, or
provisions of, or constitute a default under, any contract, covenant
or instrument under which any such employee is now obligated.
(iii) Compliance with Other Instruments. The
---------------------------------------
execution, delivery and performance of this Agreement will not result
in any violation of or conflict with or constitute, with or without
the passage of time and giving of notice, a default under any
provision of Buildscape's charter or bylaws or any instrument,
judgment, order, writ, decree or contract to which Buildscape is a
party or by which Buildscape is bound, or any provision of any federal
or state statute, rule or regulation applicable to Buildscape, the
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effect of which would have a material adverse effect on the ability of
Buildscape to perform its obligations under this Agreement or result
in the creation of any lien, charge or encumbrance upon any asset of
Buildscape.
(iv) EXCEPT AS EXPRESSLY SET FORTH HEREIN, BUILDSCAPE
MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER,
DIRECTLY OR INDIRECTLY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED
TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE, WITH RESPECT TO ANY GOODS OR SERVICES TO BE PROVIDED UNDER
THIS AGREEMENT.
12.2 Representations and Warranties of the Lumber Company. The
--------------------------------------------------------
Lumber Company hereby represents and warrants to Buildscape as follows:
(i) Authorization. All corporate action on the part
--------------
of the Lumber Company, its officers, directors and stockholders
necessary for the authorization, execution and delivery of this
Agreement, and the performance of all obligations of the Lumber
Company thereunder has been taken, and this Agreement, when executed
and delivered by the Lumber Company, will constitute valid and legally
binding obligation of the Lumber Company, enforceable against the
Lumber Company in accordance with its terms.
(ii) Intellectual Property. The Lumber Company owns
----------------------
or possesses sufficient legal rights to all IPR necessary for its
business as now conducted without any conflict with, or infringement
of, the rights of others. The Lumber Company has not received any
written communications alleging that any the Lumber Company IPR have
violated or would violate any of the IPR of any Third Party. The
Lumber Company is not aware that any of its employees is obligated
under any contract or other agreement, or subject to any judgment,
decree or order of any court or administrative agency, that would
interfere with such employee's ability to promote the interests of the
Lumber Company or that would conflict with the Lumber Company's
business. Neither the execution, delivery or performance of this
Agreement, nor the carrying on of the Lumber Company's business as now
conducted by the employees of the Lumber Company, will conflict with
or result in a breach of the terms, conditions, or provisions of, or
constitute a default under, any contract, covenant or instrument under
which any such employee is now obligated.
(iii) Compliance With Other Instruments. The
---------------------------------------
execution, delivery and performance of this Agreement will not result
in any violation of or be in conflict with or constitute, with or
without the passage of time and giving of notice, a default under any
provision of the Lumber Company's, charter or bylaws or any
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instrument, judgment, order, writ, decree or contract to which the
Lumber Company is a party or by which the Lumber Company is bound, or
any provision of any federal or state statute, rule or regulation
applicable to the Lumber Company, the effect of which would have a
material adverse effect on the ability of the Lumber Company to
perform its obligations under this Agreement or result in the creation
of any lien, charge or encumbrance upon any asset of the Lumber
Company.
(iv) EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE LUMBER
COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER,
DIRECTLY OR INDIRECTLY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED
TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE, WITH RESPECT TO ANY GOODS OR SERVICES TO BE PROVIDED UNDER
THIS AGREEMENT.
Section 13. Indemnification.
----------------
13.1 Indemnification. The Lumber Company and Buildscape each shall
----------------
indemnify the other, its Affiliates and its officers, directors, employees,
representatives, shareholders, successors, assigns, and agents (the
"Indemnified Parties") against, and hold all of them harmless from any and
all debts, claims, deficiencies, actions, proceedings, demands,
assessments, orders, writs, decrees, liabilities, suits, costs, judgments,
penalties, obligations, losses, damages and other expenses (including
reasonable attorneys' and accounting fees) (collectively, "Damages") of any
nature and of any kind whatsoever which may be made against or incurred by
any of them resulting from a Third Party claim ("Third Party Claim")
resulting from or arising out of or in any way connected with (i) any
breach by the other party of any representation, warranty, agreement or
covenant made by such other party in this Agreement or (ii) any sales
effected by such party on or through the Site or the Lumber Company Site to
the extent that such Damages do not result from the action or inaction of
an Indemnified Party.
13.2 Operation of Indemnity. Upon the occurrence of any event for
-----------------------
which any party is entitled to indemnification under this Agreement, such
party ("Indemnified Party") shall promptly notify the other party
("Indemnitor") of the type of Damages and the amount of such Damages. No
failure of an Indemnified Party to promptly notify an Indemnitor shall
relieve the Indemnitor from any obligation to indemnify the Indemnified
Party unless and to the extent the Indemnitor is actually prejudiced by
such delay in notification. Within 10 days of delivery of such notice,
Indemnitor shall either pay to the Indemnified Party, by certified or
official bank check, the full amount of such Damages or provide a
certificate from a responsible officer setting forth in reasonable detail
the reasons why Indemnitor does not believe that the claim constitutes
Damages under this Agreement. The Indemnified Party shall have the right
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to offset the amount of any Damages for which it reasonably believes it is
entitled to indemnification against all amounts which Indemnified Party may
at any time owe to Indemnitor.
13.3 Claims by Third Party. Subject to the provisions of Section 14
----------------------
hereof, if a Third Party Claim is made or proceeding is commenced against
an Indemnified Party, such Indemnified Party will promptly notify the
Indemnitor in writing. No failure of an Indemnified Party to so notify
the Indemnitor shall relieve the Indemnitor from the obligation to
indemnify the Indemnified Party unless and to the extent the Indemnitor is
actually prejudiced by such failure. Such Indemnified Party will accord the
Indemnitor the opportunity to assume entire control for the defense,
compromise or settlement of any such Third Party Claim through its own
counsel and at its own expense; provided that no such compromise or
settlement shall include any non-monetary terms and conditions applicable
to such Indemnified Party without the consent of the Indemnified Party; and
provided further, that the Indemnified Party may retain its own counsel at
its own expense (the Indemnitor shall only be liable for the cost of one
such counsel for all Indemnified Parties) if the Indemnitor, within thirty
(30) days (or such shorter period required to file a responsive pleading)
after notice of any Third Party Claim, fails to assume the defense of such
Third Party Claim. If the Indemnitor Party does not assume entire control
of the defense, compromise or settlement of such Third Party Claim, the
Indemnified Party may compromise or settle any such Third Party Claim.
Buildscape and the Lumber Company each agrees to cooperate fully with
respect to the defense of any Third Party Claim.
Section 14. Infringement Claims.
--------------------
14.1 Lumber Company. The Lumber Company reserves, and shall continue
---------------
to have, any and all rights to commence, prosecute, compromise and settle
any claim, action or proceeding for infringement, unfair competition,
unauthorized use, misappropriation or violation of any of the Lumber
Company IPR by any Third Party or any claim, action or proceeding to defend
any of the Lumber Company IPR (collectively, the "Lumber Company IPR
Claims"). The Lumber Company may commence, prosecute, compromise, defend
or settle any such the Lumber Company IPR Claims, in its sole discretion,
but shall not have any obligation to do so. The Lumber Company shall notify
Buildscape of any Lumber Company IPR Claims related to the Site or the
Lumber Company Site and shall keep Buildscape reasonably informed regarding
the status of any such Lumber Company IPR Claim and notify Buildscape if
the Lumber Company elects to discontinue further prosecution or defense of
the same.
14.2 Buildscape. Buildscape reserves, and shall continue to have,
-----------
any and all rights to commence, prosecute, compromise and settle any claim,
action or proceeding for infringement, unfair competition, unauthorized
use, misappropriation or violation of any of the Buildscape IPR by any
Third Party or any action or proceeding to defend any of the Buildscape IPR
(collectively, the "Buildscape IPR Claims"). Buildscape may commence,
prosecute, compromise, defend or settle any such Buildscape IPR Claims in
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its sole discretion, but shall not have any obligation to do so. Buildscape
shall notify the Lumber Company of any Buildscape IPR Claims related to the
Site or the Lumber Company Site and shall keep the Lumber Company
reasonably informed regarding the status of any such Buildscape IPR Claim
and notify the Lumber Company if Buildscape elects to discontinue further
prosecution or defense of the same.
Section 15. Additional Obligations of the Parties.
--------------------------------------
15.1 Nondisclosure. (a) A party receiving any Confidential
--------------
Information (the "Receiving Party") of the other party (the "Disclosing
Party") shall exercise a reasonable degree of care, but in no event less
than the same degree of care that it uses to protect its own confidential
information of a like nature, to keep confidential and not disclose such
Confidential Information. Without limiting the generality of the foregoing,
the Receiving Party shall disclose the Confidential Information of the
other party only to those of its employees and contractors (i) who have a
reasonable need to know the Confidential Information in order for the
Receiving Party to perform under this Agreement, and (ii) who are
contractually obligated to comply with the disclosure and usage
restrictions set forth in this Agreement provided that Confidential
--------------
Information may only be disclosed to such contractors after the Receiving
Party provides not less than ten days (10) notice to the Disclosing Party
of its intent to do so and the Disclosing Party does not object thereto,
any such objection not to be made unreasonably. Such notice must
specifically identify the contractor and the purpose of the disclosure by
the Receiving Party. In addition, each party may, without the prior written
consent of the other party disclose the existence and terms of this
Agreement to potential sources of financing who are contractually obligated
to maintain the confidentiality of such information.
(b) The obligations set forth for release by the Receiving Party in
(a) above shall not apply to any Confidential Information to the extent it:
(i) is approved by prior written authorization of the Disclosing Party;
(ii) is disclosed in order to comply with a judicial order issued by a
court of competent jurisdiction, in which event the Receiving Party shall
give prior written notice to the Disclosing Party of such disclosure as
soon as practicable and shall cooperate with the Disclosing Party in using
all reasonable efforts to obtain an appropriate protective order or
equivalent, provided that the information shall continue to be Confidential
Information to the extent it is covered by such protective order or
equivalent; (iii) becomes generally available to the public through any
means other than a breach by the Receiving Party of its obligations under
this Agreement; (iv) was in the possession of the Receiving Party without
obligation of confidentiality prior to receipt or disclosure under this
Agreement as evidenced by written records made prior to such receipt or
disclosure; (v) is developed independently by the Receiving Party without
the use of or benefit from any of the Confidential Information of the other
party or without breach of this Agreement, as evidenced by written records
of the Receiving Party in existence as of disclosure by the Disclosing
Party; or (vi) is required to be disclosed by any national securities
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exchange, by government rule or regulation (e.g., in connection with a
securities filing) or by any other provisions of applicable law, provided
that the Receiving Party gives the Disclosing Party advance written notice
(to the extent practicable) of the disclosure and cooperates with the
Disclosing party in any reasonable attempt to limit the scope of the
required disclosure. In any dispute over whether information is
Confidential Information under this Agreement, it will be the burden of the
Receiving Party to show that such contested information falls within the
exceptions set forth in this paragraph.
15.2 No Contest of the Lumber Company IPR. Buildscape shall not
-------------------------------------
contest or otherwise challenge (in any legal action or otherwise), or
assist or encourage any other Person to contest or challenge, the validity
of any the Lumber Company IPR; provided that the foregoing shall not
preclude Buildscape from claiming that the IPR in question is Buildscape
IPR.
15.3 No Contest of Buildscape IPR. The Lumber Company shall not
-------------------------------
contest or otherwise challenge (e.g., in any legal action or otherwise), or
assist or encourage any other Person to contest or challenge, the validity
of any Buildscape IPR; provided that the foregoing shall not preclude the
Lumber Company from claiming that the IPR in question is the Lumber Company
IPR.
15.4 Use of IPR. Except as expressly set forth herein, this
-------------
Agreement shall not be construed as granting any rights whatsoever to any
party with respect to the IPR of the other Party, and neither Party shall
claim any such rights to IPR of the other Party.
Section 16. Resolution of Disputes.
-----------------------
16.1 General. If any dispute relating to this Agreement arises
--------
between the parties, other than a dispute as to rights to IPR, that is not
otherwise resolved, then each party shall follow the dispute resolution
procedures set forth in this Section 16 unless otherwise agreed in writing
by the parties at the time the dispute arises.
16.2 Initiation of Procedures. If a party seeks to initiate the
-------------------------
procedures under this Section 16, such party will give written notice
thereof to the other party. Such notice will (a) state that it is a notice
initiating the procedures under this section, (b) describe briefly the
nature of the dispute and the initiating party's claim or position in
connection with the dispute, and (c) identify an individual with authority
to settle the dispute on such party's behalf. Within ten (10) days after
receipt of any notice under this Subsection 16.2, the receiving party will
give the initiating party written notice that describes briefly the
receiving party's claims and positions in connection with the dispute and
identifies an individual with the authority to settle the dispute on behalf
of the receiving party.
16.3 Pre-Arbitration Discussion. The parties will cause the
----------------------------
individuals identified in their respective notices under Subsection 16.2
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hereof to promptly make such investigation of the dispute as such
individuals deem appropriate. Promptly and in no event later than ten (10)
days after the date of the initiating party's notice under Subsection 16.2
hereof, such individuals will commence discussions concerning resolution of
the dispute. If the dispute has not been resolved within 30 days after
commencement of such discussions, then any party may request that the other
party make its chief executive officer available to discuss resolution of
such dispute. Each party will cause its chief executive officer to meet
together with the other party's chief executive officer to discuss such
dispute at a mutually agreed upon time within 15 days after a party makes
such request. If the dispute has not been resolved within 15 days after
the chief executive officers of the parties have first met, then the
parties shall enter into mediation with a mutually agreed upon mediator or
mediation firm. If the mediator is unable to resolve the dispute within 15
days following the commencement of mediation or the parties are unable to
agree on a mediator, any party may submit the dispute to arbitration in
accordance with Subsection 16.4 hereof.
16.4. Dispute Resolution; Arbitration. (a) If any dispute under
---------------------------------
this Agreement arises and the parties are unable to resolve such dispute in
accordance with Subsections 16.1, 16.2 and 16.3 hereof, the unresolved
matter shall be resolved by binding arbitration if a party requests
arbitration in accordance with this Subsection 16.4 hereof. The place of
arbitration shall be in Jacksonville, Florida. Arbitration shall be
conducted under the auspices of the American Arbitration Association
("AAA"). Except as otherwise provided in this Subsection 16.4, the Rules of
the AAA shall govern all proceedings; and in the case of conflict between
the AAA Rules and this Agreement, the provisions of this Agreement shall
govern.
(b) Any party may initiate arbitration by making a demand on the
other parties in accordance with the AAA Rules. The dispute or controversy
shall be submitted to a panel of three neutral arbitrators, all of whom
shall be selected from the list of neutrals maintained by the AAA, as
existing at the time arbitration is invoked, one of whom shall be selection
by Buildscape, one of whom shall be selected by the Lumber Company, and the
third of whom shall be selected by joint agreement of the arbitrators
selected by Buildscape and the Lumber Company.
(c) The parties shall have the right of discovery in accordance with
the Federal Rules of Civil Procedure and shall make the disclosures
required by Rule 26(a) thereof, except that discovery may commence
immediately upon the service of the demand for arbitration. A party's
unreasonable refusal to cooperate in discovery shall be deemed to be
refusal to proceed with arbitration and, until AAA has designated all three
arbitrators, the parties may enforce their rights (including the right of
discovery) in the courts. Such enforcement in the courts shall not
constitute a waiver of a party's right to arbitration. Upon appointment of
all three arbitrators, the arbitrators shall have the power to enforce the
parties' discovery rights.
(d) The parties shall be bound by the decision of the arbitrators and
accept their decision as the final determination of the matter in dispute,
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except as provided under Florida law permitting the appeal of arbitration
results on grounds of bias or misbehavior on the part of an arbitrator.
Under no circumstances, other than an appeal under Florida law based on
allegations of bias or misbehavior on the part of an arbitrator, shall
either party appeal or contest the decision of the arbitrators. The
prevailing party shall be entitled to enter a judgment in any court upon
any arbitration award made pursuant to this Subsection 16.4. The
arbitrators shall award the costs and expenses of the arbitration,
including reasonable attorneys' fees, disbursements, arbitration expenses,
arbitrators' fees and the administrative fee of the AAA, to the prevailing
party as shall be determined by the arbitrators.
16.5 Exclusive Remedy. The procedures set forth in this Section 16
-----------------
shall be the parties' sole remedy for resolving disputes, other than
disputes as to rights to IPR and disputes for which arbitration in
accordance with Section 16.4 hereof is not requested, under the Agreement.
The provisions of this Section 16 shall not apply to disputes as to rights
to IPR or as to which arbitration is not requested.
Section 17. Damages
-------
17.1 Direct Damages. OTHER THAN EACH PARTY'S PAYMENT OBLIGATIONS
----------------
UNDER SECTION 6 HEREOF, AND EACH PARTY'S INDEMNIFICATION OBLIGATIONS UNDER
SECTION 16 HEREOF, IN NO EVENT SHALL A PARTY'S CUMULATIVE LIABILITY TO THE
OTHER ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BASED IN
CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHER LEGAL OR EQUITABLE
THEORY, EXCEED THE GREATER OF (I) $100,000 OR (II) THE AMOUNTS RECEIVED BY
SUCH PARTY FROM THE OTHER UNDER THIS AGREEMENT.
17.2 Consequential Damages. In no event will either party have any
----------------------
liability, whether based in contract, tort (including negligence), warranty
or other legal or equitable grounds, for any loss of interest, profit or
revenue by the other party or for any consequential, indirect, incidental,
special, punitive or exemplary damages suffered by the other party, arising
from or related to this Agreement, even if such party has been advised of
the possibility of such losses or damages.
Section 18. Miscellaneous.
--------------
18.1 Insurance. Each party shall maintain at all times and at its
----------
own expense insurance in such amounts, and with such coverage and terms, as
are commercially reasonable in light of the business conducted by such
party.
18.2 Assignment; Sale of Assets or Capital Stock. This Agreement
---------------------------------------------
shall be binding upon and inure to the benefit of the parties hereto, and
the legal representatives, successors in interest and permitted assigns,
respectively, of each such party. This Agreement shall not be assigned in
whole or in part by any party without the prior written consent of the
other party.
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18.3 Notices. All notices, requests, demands, applications, services
--------
of process, and other communications that are required to be or may be
given under this Agreement shall be in writing and shall be deemed to have
been duly given if sent by telecopy or facsimile transmission, or delivered
by courier or overnight delivery service, first class mail, postage
prepaid, return receipt requested, to the parties to this Agreement at the
following addresses:
If to Buildscape: Buildscape, Inc.
0000 Xxxxxxx Xxxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
FAX: 000-000-0000
Attention: President
If to the Lumber Company: Wickes Inc.
000 Xxxxx Xxxxxxxx Xxxxx
Xxxxxx Xxxxx, Xxxxxxxx 00000
FAX: 000-000-0000
Attention: President
or to such other address as the party shall have furnished to the other
party by notice given in accordance with this Subsection 18.3. Such notice
shall be effective (a) if delivered in person or by courier or overnight
delivery service, upon actual receipt by the intended recipient, or (b) if
sent by telecopy or facsimile transmission, on the date of transmission
unless transmitted after normal business hours, in which case on the
following date, or (c) if mailed, upon the date of first attempted
delivery.
18.4 Waiver. No provision of this Agreement shall be deemed to be
-------
waived and no breach excused unless such waiver or consent shall be in
writing and signed by the party that is claimed to have waived or
consented. The failure of a party at any time, or from time to time, to
require performance by the other party of any provision hereof shall in no
way affect the rights of such party thereafter to enforce the same nor
shall the waiver by a party of any breach of any provision hereof by the
other party constitute a waiver of any succeeding breach of such provision,
or a waiver of any provision itself, or a waiver of any other provisions
hereof.
18.5 Severability. This Agreement will be enforced to the fullest
-------------
extent permitted by applicable law. If for any reason any provision of this
Agreement is held to be invalid or unenforceable to any extent, then: (a)
such provision will be interpreted, construed or reformed to the extent
reasonably required to render the same valid, enforceable and consistent
with the original intent underlying such provision; (b) such provision will
be void to the extent it is held to be invalid or unenforceable; (c) such
provision will remain in effect to the extent that it is not invalid or
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unenforceable; and (d) such invalidity or unenforceability will not affect
any other provision of this Agreement or any other agreement between the
parties.
18.6 Governing Law. This Agreement shall be governed by and
---------------
construed according to the laws of the State of Florida without regard to
its choice of law provisions. The parties consent to the jurisdiction of
any Florida court located within Xxxxx County and the United States
District Court for the Middle District of Florida (Jacksonville Division)
and waive any right to assert that any such court constitutes an
inconvenient or improper forum.
18.7 Publicity. Neither party shall, without the approval of the
----------
other, make any press release or other public announcement concerning the
transactions contemplated by this Agreement, except as and to the extent
that any such party shall be so obligated by law or by the rules,
regulations or policies of any national securities exchange or association
or governmental entity, in which case the other party shall be advised and
the parties shall use their best efforts to cause a mutually agreeable
release or announcement to be issued; provided, however, that the parties
hereby acknowledge and agree that communications among employees of the
parties and their attorneys, representatives and agents necessary to
consummate the transactions contemplated hereby shall not be deemed a
public announcement for purposes of this Subsection 18.7. Upon the
execution and delivery of this Agreement, the parties hereto will cooperate
in respect of the immediate issuance of a mutually acceptable press release
relating to the transactions contemplated by this Agreement.
18.8 Entire Agreement. All schedules to this Agreement are
------------------
incorporated in and constitute a part of this Agreement. This Agreement
including the schedules hereto and thereto, each as amended from time to
time, constitute the entire understanding between the parties in relation
to the subject matter hereof and supersede all prior discussions,
agreements and representations related to this subject matter, whether oral
or written and whether or not executed by a party. Unless otherwise
provided in this Agreement, no modification, amendment or other change may
be made to this Agreement or any part thereof unless reduced to writing and
executed by authorized representatives of all parties.
18.9 Counterparts. This Agreement may be executed in two or more
-------------
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
18.10 Titles and Subtitles. The titles and subtitles used in this
---------------------
Agreement and in the schedules hereto are used for convenience only and are
not to be considered in construing or interpreting this Agreement.
18.11 Force Majeure. Neither party shall be responsible for a
---------------
failure to meet its obligations under this Agreement to the extent caused
by the following: (a) materially inaccurate data submitted by the other
party; (b) any failure by the other party to meet its obligations stated in
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this Agreement; (c) any failure of equipment, facilities or services not
controlled or supplied by such party; or (d) failure(s) caused by acts of
God, acts of nature, riots and other major civil disturbances, strike by
such party's personnel, sabotage, injunctions or applicable laws or
regulations, in each case without breach by such party of any obligations
under this Agreement with regard to either such event or such failure. The
Lumber Company or Buildscape, as applicable, agrees to use its commercially
reasonable efforts to restore performance of its obligations under this
Agreement as soon as reasonably practicable following any such event.
18.12 Injunctive Relief. The parties acknowledge that a material
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breach of this Agreement would cause irreparable harm, the extent of which
would be difficult to ascertain. Accordingly, they agree that, such party
will be entitled to obtain immediate injunctive relief in the event of a
material breach of this Agreement to enjoin such breach pending resolution
pursuant to this Agreement.
18.13 Attorneys' Fees. Subject to the provisions of Section 16
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hereof, in the event any action is commenced to enforce the provisions of
this Agreement, then the prevailing party in such action shall be entitled
to recover from the other party such prevailing party's costs and expenses,
including attorneys fees incurred in connection with such action.
(SIGNATURE PAGE FOLLOWS)
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed on its behalf by its officers thereunto duly
authorized, all as of the date first above written.
BUILDSCAPE, INC.
By_/s/______________________________
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WICKES INC.
By_/s/______________________________
----------------------------------
[CERTAIN CONFIDENTIAL MATERIAL HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE X.XX. PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT ]
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Schedule 1
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Operational Guidelines
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Enrollment Activities. Buildscape and the Lumber Company will develop a
plan to introduce, enroll and familiarize the Lumber Company Customers with
the features and functions of the Lumber Company Site (the "Enrollment
Plan"). Buildscape and the Lumber Company will generally cover their own
internal costs of enrollment activities and will equally share external
costs of printed materials, customer connectivity and hardware as required,
seminars, builders shows, etc. as mutually agreed in the Enrollment Plan.
Employee and Customer Training. Buildscape and the Lumber Company will
develop a plan (the "Training Plan") to provide appropriate training to the
Lumber Company's employees and Customers to effectively use the Lumber
Company Site. Buildscape and the Lumber Company will generally cover their
own internal costs of enrollment activities and will equally share the
costs of printed materials and other direct external costs of training as
mutually agreed in the Training Plan. The Lumber Company's employees will
receive appropriate training, on the features and functions of the Lumber
Company Site to allow them to assist with the enrollment and ongoing
support process. Sales representatives will play an integral part in the
Lumber Company Customer enrollment, training and sales processes.
Customer Assignment. Every customer who registers at the Site, and whose
delivery or billing address falls within the Lumber Company Area, may
choose the Lumber Company as the source for Lumberyard Products. If an
Other Lumberyard serves the Customer's area in addition to the Lumber
Company, the customer may choose between the Lumber Company and the Other
Lumberyard and may utilize both the Lumber Company and the Other
Lumberyard. If the customer has no preference and desires to order
Lumberyard Products, then such assignment will be made by Buildscape to the
Lumber Company with the highest priority based on oldest date of entering
into this Agreement or an Other Lumberyard Agreement with Buildscape.
National Catalog Products. On the Lumber Company Site, Buildscape will
make National Catalog products available for sale. Buildscape will
determine the pricing of National Catalog Products.
Lumberyard Products. On the Lumber Company Site, the Lumber Company will
make Lumberyard Products available for Sale. The Lumber Company will
determine the pricing of Lumberyard Products.
Product Fulfillment. The Lumber Company will fulfill all Lumberyard
Product orders from the Lumber Company Customers. Buildscape will fulfill,
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or will cause to be fulfilled, all National Catalog Product orders from the
Lumber Company Customers.
Sales Taxes. Each party will pay any sales, use or value-added taxes to any
state or governmental entity for sales booked by that party.
Chargebacks, Credit Risk, Product Returns. The party who records the sale
to the customer shall bear all costs and risks related to such sale,
including chargebacks, credit collections, transaction processing costs and
product returns.
National Catalog Products that are sold direct to the Lumber company
customers may be returned to the Lumber Company and the Lumber company will
process those returns for Buildscape and will return those products to
Buildscape. Buildscape will pay the Lumber Company for return processing
at a rate to be agreed upon by the parties hereto.
In the event the Lumber Company purchases National Catalog Products from
Buildscape for resale to the Lumber Company Customers and the products are
returned to the Lumber Company by the Lumber Company Customers who
purchased those products from the Lumber Company, the Lumber Company may
return those products to Buildscape.
In the event Buildscape purchases Lumberyard Products from the Lumber
company for resale to Buildscape Customers and the products are returned to
Buildscape by the Buildscape customers who purchased those products from
Buildscape, Buildscape may return the products to the Lumber Company.
Product return and refund rates will be reviewed during the Pilot Period
and Buildscape and the Lumber Company will jointly determine the need for
and the amount of any restocking fees.
The Lumber Company will establish an Internet Vendor ID# so that Buildscape
can present E-Commerce transactions that are the Lumber Company Sales on
behalf of the Lumber Company. Until the Lumber Company has an Internet
Vendor ID#, Buildscape will present all E-Commerce credit card
transactions. Buildscape will remit to the Lumber Company the transaction
amount less the transaction fees incurred by Buildscape to complete the
order.
Piggyback Credit. The Lumber Company and Buildscape will agree upon terms
pursuant to which the Lumber Company will provide credit facilities for the
Lumber Company Customers to purchase National Catalog Products with the
goal of providing a single account for the Lumber Company Customer for
both Lumberyard Products and National Catalog Products.
Customer Billing. The parties will develop a billing process such that the
Lumber Company Customers receive a single xxxx that incorporates both
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purchases from the Lumber Company Site and offline purchases from the
Lumber Company. The parties will provide on-line account reconciliation on
the Lumber Company Site for the Lumber Company Customers for all those
customers' on line and off line purchases.
Billing and Payments by Parties. Buildscape will provide on a daily basis
a record, and within two business days following the end of each month, a
detailed summary report, of all sales invoiced to the Lumber Company
Customers sold through the Lumber Company Site. Within seven business
days following the end of each month, the parties will review, verify, and
compare the summary reports and agree to the net amount of fees owed. The
agreed net amount of fees owed one party will be due and payable to that
party by the 15th day of the month following the month for which such fees
were earned.
Brands And Advertising. The parties will collaborate on: (1) the content
included on the Lumber Company Site; (2) the use of the Lumber Company
Trademarks on the Lumber Company Site; and (3) the content included in,
and the presentation of, the Action Links on the Lumber Company Site. The
Lumber Company will have final approval regarding any representations made
relating to the scope or quality of the Lumber Company services and the
pricing for the Lumber Company Products. Buildscape and the Lumber
Company will collaborate on all advertising that promotes the Lumber
Company Site. All Buildscape advertising through a medium other than the
Lumber Company Site or the Site and primarily focused on the local
delivery of the Lumber Company Products and Overlap Products through the
Lumber Company Site will be co-branded with the Buildscape and the Lumber
Company' Trademarks. Any advertising by the Lumber Company relating to the
Lumber Company Site will be co-branded with Buildscape and the Lumber
Company' Trademarks. Buildscape will not accept or display advertising
from any lumberyard or hardware store, including but not limited to any
Lumberyard Chain, except the Lumber Company on the Lumber Company Site.
Buildscape will control all content and advertising on the Site and the
Lumber Company Site, with the exception of any areas of the Lumber Company
Site that are general Lumber Company information and non-commerce related.
Buildscape will receive all revenues from any advertising on the Site and
the Lumber Company Site. [Wickes Only: Certain advertising commissions
will continue to be paid to the Lumber Company pursuant to a separate
existing agreement.]
Buildscape Auction. The Lumber Company will to the extent reasonably
possible, and as determined solely by the Lumber Company, support
Buildscape Auction and other Buildscape Special Market efforts through
providing product, industry contacts, and by assisting in directing
customers to the Auction and other "Special Market" areas of the Site and
the Lumber Company Site.
Delivery and Shipping Services. The Lumber Company will provide local
delivery services for the Lumber Company Products sold on the Lumber
Company Site. Buildscape will ship National Catalog Products, ordered by
the Lumber Company Customers through the Lumber Company Site, to the
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address, by the carrier and at the priority specified in the order. At the
direction of the Lumber Company Customers, Buildscape may ship National
Catalog Products to the Lumber Company's retail stores for aggregation and
pick-up or delivery, for reasonable and customary charges to be agreed upon
by the parties.
Customer Services. The Lumber Company will provide reasonable customer
service assistance for all orders of the Lumber Company Products placed on
the Lumber Company Site in accordance with the Lumber Company's standard
policies. Buildscape will provide reasonable customer service assistance
for all orders of National Catalog Products.
Performance Criteria. Buildscape and the Lumber Company will work in good
faith to establish performance milestones and requirements for each party.
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Schedule 2
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Schedule 2
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Sales Recordation, Fees, Terms of Product Purchase, etc.
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Sales Recordation
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1. Sales will be recorded by Buildscape for the following:
1.1. Sales of National Catalog Products from Buildscape to Lumber Company
for resale to Lumber Company Customers
1.2. Sales of all products from Buildscape to customers who do not have
Lumber Company store credit or who are not covered by items 2.1
through 2.3 under this heading
2. Sales will be recorded by the Lumber Company for the following:
2.1. Sales of all products to all customers who have Lumber Company store
credit
2.2. Sales of all products to all other customers who purchase Lumberyard
Products and who the Lumber Company and Buildscape agree to define as a
Lumber Company Customer when those Lumberyard Product purchases are made.
(Such definition to be made upon completion of the Pilot Period.)
2.3. Sales of Lumberyard Products from Lumber Company to Buildscape for
resale to Buildscape customers
Fee Structure
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Interparty Product Sales
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Gross Profit Agreement: For interparty product sales, as described in
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items 1.1 and 2.3 under the heading "Sales Recordation", 75% and 90%,
respectively, of the final total Gross Profit will be retained by
Buildscape or Wickes, respectively..
Resale Terms of Purchase: For sale of product between Buildscape and
---------------------------
Lumber Company for purposes of resale, each will xxxx the other on net
30-day terms. Late fees and other terms will be developed upon complete
of the Pilot Period.
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Transaction & Incremental Sales Fees:
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The parties will each pay fees to the other based on revenue as follows:
Transaction Fees:
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- Lumber Company will pay Buildscape a fee for all transactions of
Lumberyard Products that occur through the site in the amount of 0.5% of
sales.
Incremental Sales Fees:
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- Lumber Company will pay Buildscape a fee on all Incremental Lumberyard
Product sales in the amount of 10% of the gross profit derived from such
sales. Incremental sales for Lumberyard Products are generally those sales
that exceed the baseline expected sales for the Lumber Company through the
term of this Agreement. The baseline expected sales and Incremental sales
will be defined and mutually agreed to in good faith between the parties
upon completion of Pilot Period.
- Buildscape will pay Lumber Company a fee on all National Catalog
Product sales to Lumber Company Customers of a type described in item 1.2
under the heading "Sales Recordation" (but specifically excluding such
sales described in item 1.1 under such heading) in the amount of 10% of
the gross profit derived from such sales.
The parties agree to review the Pilot Program results and to revise the
transaction & Incremental sales fee structure and rates as required to
ensure they are economically feasible for both parties upon completion of
the Pilot Program. It is contemplated that Incremental Sales may be
defined in any number of ways including subgroups of customers, subgroups
of products or product categories, overall or per customer sales volumes,
etc. The parties will review all options during and upon completion of the
Pilot to mutually determine the best means for measuring Incremental Sales.
Buildscape Auction Sales Fees
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Fees paid to Buildscape by the Lumber Company for Lumberyard products
posted and/or sold on Buildscape Auction will be 2% of gross revenue from
such sales. This rate will be reviewed upon completion of the Pilot
Period. In no event shall fees paid be higher than the best and lowest
fees paid by any other seller on Buildscape Auction.
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