"NOTE - Certain confidential technical and commercial information has been
redacted from this exhibit in order to preserve the confidentiality of such
information. All of the confidential information which has been redacted is on
file with the Securities and Exchange Commission. Redacted material is
indicated by the symbol, "[**REDACTED**]" where such redacted text would have
appeared in this exhibit."
XxxxxxXxxxxx.xxx
CABLE RESELLER AND MALL AGREEMENT
CableONE, Inc.
THIS CABLE RESELLER AND MALL AGREEMENT (the "AGREEMENT") is made and
entered into as of the date set forth on the Addendum attached hereto and by
this reference made a part hereof (the "ADDENDUM"), between and among
XXXXXXXXXXXX.XXX, INC., a California corporation, and NETGATEWAY, a Nevada
corporation, on the one hand (collectively, "STORESONLINE"), and the Reseller
identified on the Addendum, on the other hand ("RESELLER").
R E C I T A L S
A. Reseller is a cable television operator, engaged in the business
described on the Addendum.
B. StoresOnline owns, operates and maintains an Internet
storefront-building services package comprised of certain services delivered
through StoresOnline's proprietary software, the standard features of which
are more particularly described on the Addendum (the "SERVICES").
C. The Services are delivered through the Internet and may be made
available through a private, branded electronic exchange to be developed for
Reseller.
D. StoresOnline desires to (i) sell and license the Services to Reseller
for Reseller's resale and sublicense to end-user customers or, with the
written permission of StoresOnline, to other resellers and (ii) develop
certain on-line mall(s) to be branded around Reseller's name, brand and image
(the "MALLS").
E. Reseller desires to purchase and license the Services for resale to
end-user customers and shall use its unique resources to promote the Services
as hereinafter set forth.
AGREEMENT
NOW, THEREFORE, on the basis of the foregoing recitals, and in
consideration of the mutual promises contained herein, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto covenant and
agree as follows:
1. SERVICES.
a. SCOPE OF AGREEMENT. This Agreement covers (i) the purchase,
licensing, promotion and sale of the Services and (ii) the design and
development of the Malls pursuant to and in accordance with the terms and
conditions set forth on the Addendum.
b. LICENSE GRANT; SALE OF SERVICES. StoresOnline grants to
Reseller, subject to the terms and conditions of this Agreement, the
[**REDACTED**] right and license to resell and sublicense (in the case of
software products), the Services to Reseller's end-user customers or, with
the written permission of StoresOnline, to other resellers. In the case of
software products, Reseller acknowledges that such software is and will
remain proprietary to StoresOnline, is copyrighted and that Reseller acquires
no right, title or interest in or to any such software by this Agreement.
Reseller agrees to sublicense the Services hereunder pursuant to the Standard
License Agreement Terms set forth on Exhibit A hereto, and to cause each of
its customers or other resellers to sublicense the Services pursuant to such
terms, which terms, in the case of a reseller, shall be accepted upon store
set-up and, in the case of an end-user customer, shall be accepted as part of
the storefront registration process described below.
c. PRODUCT NAME. It is expressly agreed that the ownership and
all right, title and interest in and to the Services and any trademark, trade
name, patent or copyright relating to the Services is and will remain vested
solely in StoresOnline; PROVIDED, HOWEVER, that as permitted by this
Agreement, Reseller may use any existing or future trademark, trade name,
patent or copyright relating to the Services, such use to be limited to
promoting, selling, installing or maintaining the Services; and PROVIDED,
FURTHER, that as permitted by this Agreement, the Services may be branded
around Reseller's name, brand and image. Reseller shall use its best efforts
during the term of this Agreement to protect StoresOnline's trademarks, trade
names, patents and copyrights, but shall not be required to instigate legal
action against third parties for any infringement thereof. Reseller shall
notify StoresOnline of any infringement as soon as practicable after becoming
aware of any such infringement. Reseller shall not use, directly or
indirectly, in whole or in part, StoresOnline's name or any other trade name
or trademark that is owned or used by StoresOnline in connection with any
product other than StoresOnline's products, without the prior written consent
of StoresOnline.
d. MALL DEVELOPMENT. StoresOnline shall develop the Malls in
accordance with the terms and conditions set forth herein and on the
Addendum. The Malls may be branded around Reseller's name, brand and image
and shall link to the Reseller's branded StoresOnline solution. The Malls
will include appropriate URL addresses, four to six featured products and
stores from various Reseller and third party advertisers, additional Reseller
and non-Reseller advertiser stores and products catalogued with text
references, and links to top-tier eCommerce sites. The Malls will also
include an appropriate search engine, commerce functionality, banner and
other appropriate advertising space and such other features as the parties
shall mutually agree. The Mall will be capable of cataloguing stores
independently or in conjunction with all other Malls developed hereunder, if
any, as well as other malls which belong to the StoresOnline electronic mall
network. Reseller agrees and understands that the storefronts of its
end-user customers may be placed in one or more electronic malls developed
and/or operated by StoresOnline.
2. TERM OF AGREEMENT. The term of this Agreement shall commence as of
the execution hereof and continue for an initial term of [**REDACTED**].
Such term shall automatically be extended for additional [**REDACTED**] terms
thereafter unless either party notifies the other, not less than sixty (60)
days prior to the expiration of the applicable term, of its intention not to
renew the Agreement.
a. Notwithstanding the foregoing, this Agreement may be terminated
in accordance with the provisions of Section 10.
b. Termination of this Agreement shall not relieve either party of
any obligations incurred prior to termination, including outstanding delivery
and payment obligations and other contractual commitments herein or mutually
agreed to from time to time by the parties in writing. The obligations set
forth in Xxxxxxxx 0x, 0, 0, 00x, 00x, 00x, 12f and 12h are expressly intended
to survive termination of this Agreement.
3. PRICES AND TAXES.
a. PRICES FOR SERVICES. StoresOnline shall charge Reseller the
one-time Store Set-up Price set forth on the Addendum for each electronic
storefront that Reseller instructs StoresOnline to place in the Mall.
StoresOnline shall charge Reseller the applicable Monthly Base Wholesale
Price set forth on the Addendum for each active storefront. Unless Reseller
elects to xxxx its customers directly in accordance with paragraph 6.c
hereof, the Monthly Base Wholesale Price shall be offset by StoresOnline
against payments due to Reseller in accordance with paragraph 6.b hereof.
b. PRICE ADJUSTMENTS FOR SERVICES. The prices for the Services are
subject to change by StoresOnline at any time, and shall become effective
ninety (90) days after written notification of such change to Reseller.
c. RETAIL PRICES FOR SERVICES. On or before the first day of each
month, Reseller shall provide StoresOnline with a list of the Reseller prices
charged for each class of Accounts or for each Account (as hereinafter
defined).
d. PRICES FOR MALL DEVELOPMENT; MALL REVENUE SPLIT. All prices
for Mall design, development and operation provided hereunder shall be as set
forth on the Addendum. It is anticipated that the Malls will generate
multiple revenue streams. [**REDACTED**] The parties hereto shall mutually
agree to pricing in the event advertising space is sold on a straight-buy
basis.
e. TAXES. All prices for any services or products supplied
hereunder are exclusive of any federal, state or local sales, use, excise, AD
VALOREM or personal property taxes levied, or any fines, forfeitures or
penalties assessed in connection therewith, as a result of this Agreement or
the installation or use of services or products hereunder (collectively, but
exclusive of taxes based upon StoresOnline's income, "Taxes"). Reseller or
Reseller's customers, as applicable, shall pay any and all such Taxes, or
StoresOnline may pay such Taxes for Reseller's account or Reseller's
customers' account, in which case Reseller shall be obligated to reimburse
StoresOnline for amounts so paid. Any such Taxes which are charged to or
payable by StoresOnline will be invoiced to and paid by Reseller in the
manner set forth in Section 6 below. In the event that Reseller directly
invoices its customers pursuant to paragraph 6.c hereof, Reseller shall be
solely responsible for the collection and payment of any such Taxes.
In the event that Reseller requests that StoresOnline arrange for the
installation of high speed telecommunications services necessary for
Reseller's
use, such services will be maintained in StoresOnline's name or Reseller's
name, as determined by StoresOnline in its sole discretion. In the event
that such services are maintained in the name of StoresOnline, Reseller shall
promptly remit payment to StoresOnline for all charges in connection with the
installation and use thereof. STORESONLINE SHALL NOT BE LIABLE TO RESELLER
FOR ANY FAILURE, FAULT, DELAY, INTERRUPTION OR LOSS OF TELECOMMUNICATIONS
SERVICES EXCEPT TO THE EXTENT CAUSED BY STORESONLINE'S GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT.
4. PROMOTION. Reseller shall promote the Mall and the Services by
cablecasting two thirty second television commercials provided to Reseller by
StoresOnline. In the event Reseller elects to produce additional
commercials, it shall do so at its own expense and must receive
StoresOnline's approval prior to cablecasting such commercials, which
approval shall not be unreasonably withheld. All commercials promoting the
services shall be cumulatively cablecast by Reseller a minimum of 400 times
per broadcast month, in each broadcast market where a Mall has been launched
and/or the Services are being offered by Reseller to its subscribers..
Reseller shall use its best efforts to ensure that the commercials are placed
in even rotations on a variety of its cable television networks.
5. CUSTOMER ACCOUNTS.
a. CUSTOMER ACCOUNT REGISTRATION PROCESS. The Services provided
hereunder include an online registration process that Reseller and its
customers will use to establish storefront accounts with StoresOnline (the
"ACCOUNTS"). In order to establish an Account, Reseller's customers must
complete an on-line registration process in accordance with the terms set
forth on the StoresOnline website. At the option of the customer,
registration may also be completed non-electronically. To establish an
Account, Reseller's customers must also provide credit card information and
authorize the payment of fees for Services on a monthly basis in advance.
The general terms and conditions for the use of Accounts shall be posted from
time to time on the StoresOnline web site, or in the event that StoresOnline
establishes an electronic exchange for Reseller, such information will be
posted on Reseller's exchange. The terms and conditions as posted shall, in
all events and at all times, be binding upon the Reseller and its customers
who establish Accounts. The terms and conditions governing such Accounts may
be amended from time to time by StoresOnline in its sole discretion.
b. CONTINUATION OF CUSTOMER ACCOUNTS. Continuation of each
customer Account is subject to the timely payment of the monthly fees
associated with such Accounts, and failure to do so shall constitute grounds
for StoresOnline to cancel and terminate an Account.
6. BILLING AND PAYMENT TERMS.
a. INVOICING FOR SERVICES. In the event Reseller requests that
StoresOnline invoice Reseller's customers directly, StoresOnline shall
electronically invoice Reseller's customers and directly charge against the
credit card accounts provided by such customers for such purpose during the
registration process for the retail price of the Services charged by
Reseller. All fees due from customers shall be paid in advance and are due on
the first day of each month. In preparing the invoices and charging against
the applicable credit cards, StoresOnline shall use the most recent Reseller
retail prices provided to StoresOnline by Reseller pursuant to Section 3c
hereof for the Accounts invoiced.
b. PAYMENT AND COLLECTION FOR SERVICES. StoresOnline shall
collect the monthly fees set by Reseller from Reseller's customers and, after
deducting any monthly fees and expenses to which it is entitled hereunder,
shall remit the balance to Reseller on a monthly basis, together with a
statement setting forth the amounts collected, the amounts deducted and the
total amount remitted. In the event payment is not received by StoresOnline
within the specified time, an additional late charge of one and one half
percent (1.5%) of the past due amount will be assessed for each thirty (30)
days outstanding, prorated on a daily basis. All payments for Services shall
be made in United States dollars.
c. DIRECT RESELLER BILLING FOR SERVICES. Reseller may invoice its
customers directly for the Services provided hereunder. In the event that
Reseller chooses to xxxx its customers directly for the Services, Reseller
shall remit directly to StoresOnline the applicable Monthly Wholesale Price
for each active storefront maintained pursuant to this Agreement. All such
fees shall be paid in advance and are due on the first day of each month.
d. BILLING FOR MALL RELATED CHARGES; ADVERTISING AND RELATED
REVENUES. StoresOnline shall invoice Reseller directly for all charges due
hereunder in connection with the design, development and operation of the
Malls, which charges shall be payable in accordance with the Addendum. All
revenues generated from the Malls (including advertising and related
revenues) which are required to be split between StoresOnline and Reseller
pursuant to paragraph 3(d) hereof shall be invoiced and collected by
StoresOnline. StoresOnline shall thereafter forward all amounts due, if any,
to Reseller (net 30 days) at the address provided on the signature page
hereto, together with a statement setting forth the total amount collected,
the amounts payable to Reseller and the total amount remitted.
7. REAL TIME PAYMENT PROCESSING. In the event that a customer wishes
to use the StoresOnline real-time credit card payment processing option, such
customer must establish a customer account with an FDIC network bank and must
open an account with a participating credit-card processor.
8. DISCLAIMER OF WARRANTIES AND LIMITATIONS OF LIABILITY.
a. DISCLAIMER OF WARRANTY. EXCEPT AS SPECIFICALLY PROVIDED HEREIN,
THERE ARE NO, AND STORESONLINE EXPRESSLY DENIES, REJECTS AND DISCLAIMS ANY
WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR
WARRANTIES OF THE CORRECTNESS, ACCURACY, PRECISION, TIMELINESS OR
COMPLETENESS OF ANY INFORMATION OR SERVICES PROVIDED HEREUNDER.
b. LIMITATION OF LIABILITY. STORESONLINE, ITS DIRECTORS, OFFICERS,
AFFILIATES, EMPLOYEES AND AGENTS SHALL NOT BE LIABLE TO RESELLER OR TO ANY
THIRD PARTY FOR ANY LOSS OR DAMAGE, WHETHER DIRECT OR INDIRECT, RESULTING
FROM DELAYS OR INTERRUPTIONS OF SERVICE DUE TO MECHANICAL ELECTRICAL OR WIRE
DEFECTS OR DIFFICULTIES, STORMS, STRIKES, WALK-OUTS, EQUIPMENT OR SYSTEMS
FAILURES, OR OTHER CAUSES OVER WHICH STORESONLINE, ITS DIRECTORS, OFFICERS,
AFFILIATES, EMPLOYEES OR AGENTS AGAINST WHOM LIABILITY IS SOUGHT, HAVE NO
REASONABLE CONTROL, OR FOR LOSS OR DAMAGE, DIRECT OR INDIRECT, RESULTING FROM
INACCURACIES, ERRONEOUS STATEMENTS, ERRORS OF FACTS, OMISSIONS OR ERRORS IN
THE TRANSMISSION OR DELIVERY OF THE SERVICES, OR ANY DATA PROVIDED AS A PART
OF THE SERVICES PURSUANT TO THIS AGREEMENT, EXCEPT TO THE EXTENT CAUSED BY
THE NEGLIGENCE OR WILLFUL MISCONDUCT OF STORESONLINE. IN ALL CASES ARISING
FROM EVENTS OCCURRING DURING THE TERM OF THIS AGREEMENT, WHETHER BASED UPON
TORT, CONTRACT, WARRANTY, INDEMNITY, CONTRIBUTION OR OTHERWISE, DAMAGES SHALL
BE LIMITED TO, AND RESELLER AGREES NOT TO MAKE ANY CLAIM OR CLAIMS EXCEEDING
TWENTY-FIVE THOUSAND DOLLARS ($25,000.00), REGARDLESS OF HOW MANY CLAIMS
RESELLER MAY HAVE; PROVIDED, HOWEVER, THAT THE DOLLAR LIMITATION SET FORTH IN
THIS SENTENCE SHALL NOT APPLY TO MONIES DUE TO RESELLER IN CONNECTION WITH
ANY OF RESELLER'S ACCOUNTS ESTABLISHED PURSUANT TO THIS AGREEMENT. IN
ADDITION, IN NO EVENT SHALL STORESONLINE BE LIABLE TO RESELLER OR TO ANY
THIRD PARTY FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL LOSSES OR
DAMAGES WHICH RESELLER OR SUCH THIRD PARTY MAY INCUR OR EXPERIENCE ON ACCOUNT
OF ENTERING INTO OR RELYING ON THIS AGREEMENT OR UTILIZING THE SERVICES,
REGARDLESS OF WHETHER STORESONLINE HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES OR WHETHER SUCH DAMAGES ARE CAUSED, IN WHOLE OR IN PART, BY THE
NEGLIGENCE OF STORESONLINE.
c. TIME FOR MAKING CLAIMS. ANY SUIT OR ACTION BY RESELLER AGAINST
STORESONLINE, ITS DIRECTORS, OFFICERS, AFFILIATES, EMPLOYEES, AGENTS,
SUCCESSORS OR ASSIGNS, BASED UPON ANY ACT OR OMISSION ARISING OUT OF OR
RELATING TO THIS AGREEMENT, OR SERVICES PERFORMED HEREUNDER, OR ANY ALLEGED
BREACH THEREOF, SHALL BE COMMENCED WITHIN TWO (2) YEARS OF THE DATE ON WHICH
THE RESELLER KNEW OR SHOULD HAVE KNOWN OF THE FIRST OCCURRENCE GIVING RISE TO
SUCH CLAIM OR BE FOREVER BARRED. THIS PROVISION DOES NOT MODIFY OR OTHERWISE
AFFECT THE LIMITATION OF STORESONLINE'S LIABILITY SET FORTH IN THIS PARAGRAPH
8 OR ELSEWHERE IN THIS AGREEMENT.
d. DISCLAIMER. THE WARRANTIES AND CONDITIONS SET FORTH HEREIN AND
THE OBLIGATIONS AND LIABILITIES OF STORESONLINE HEREUNDER ARE IN LIEU OF, AND
BUYER HEREBY WAIVES, ALL EXPRESS AND IMPLIED WARRANTIES AND CONDITIONS,
INCLUDING, WITHOUT LIMITATION, THOSE OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. IN NO EVENT SHALL STORESONLINE'S LIABILITY FOR ANY CLAIM
ASSERTED BASED ON A VIOLATION OF WARRANTY OR CONDITION
EXCEED THE AMOUNT PAID BY RESELLER TO STORESONLINE FOR THE AFFECTED ITEM OF
SERVICES.
e. INFRINGMENT. StoresOnline will indemnify and hold Reseller
harmless from and against any claim by third parties pertaining to the
infringement of U.S. copyrights, trademarks or patents arising solely from
Reseller's use of any of computer programs or software products utilized by
StoreOnline to provide the Services as authorized hereunder, provided that
such computer programs or software products have not been altered, revised or
modified by Reseller in a manner that causes the alleged infringement, and
further provided that: (i) Reseller promptly notifies StoresOnline in
writing of such claim; (ii) StoresOnline will have sole control of the
defense of any action on such claim and of all negotiations for its
settlement or compromise; (iii) Reseller cooperates with StoresOnline in
every reasonable way to facilitate the settlement or defense of such claim;
and (iv) should such Services become or, in StoresOnline's opinion, be likely
to become, the subject of an infringement claim, Reseller will permit
StoresOnline, at StoresOnline's expense, to (1) procure for Reseller the
right to continue using such Services, or (2) replace or modify the same to
become functionally equivalent yet non-infringing, or (3) upon the failure of
(1) and (2) above, terminate, without penalty, Reseller's use of the affected
Services, in which event StoresOnline will refund to Reseller on a pro-rata
basis any prepaid amounts related thereto. Notwithstanding the foregoing,
StoresOnline shall not be liable to indemnify Reseller for any claims of
infringement by third parties relating in any manner to the contents of the
Mall or any of the third party merchants' storefronts contained therein
provided by Reseller or any of its end-user customers.
9. DOCUMENTATION AND TRAINING. Provided that Reseller has met the
minimum performance standards set forth elsewhere in this Agreement,
StoresOnline shall, on a semi-annual basis, provide free-of-charge a one (1)
day training program for employees designated by Reseller at the StoresOnline
corporate headquarters. Additional training by StoresOnline shall be made
available to Reseller at StoresOnline's standard rates. All expenses of the
trainees under this Section 9 shall be borne solely by Reseller.
10. DEFAULT.
a. RESELLER'S DEFAULT. The failure by Reseller to make any
payment required hereunder or a material breach by Reseller of its
obligations hereunder shall constitute an event of default by Reseller. Upon
the occurrence of an event of default, StoresOnline shall provide Reseller
with written notice specifying the nature of such default. If Reseller has
not cured such default within thirty (30) days after receipt of such notice,
StoresOnline may, at its sole discretion, terminate this Agreement and/or
seek any other available remedies available at law or in equity; PROVIDED,
HOWEVER, that the cancellation of this Agreement shall not prevent Reseller
from reselling the Services (and sublicensing the software component thereof)
previously paid for by Reseller and sublicenses previously granted by
Reseller pursuant hereto shall not be affected by such termination.
b. STORESONLINE'S DEFAULT. The failure by StoresOnline to make any
payment required hereunder or a material breach by StoresOnline of its
obligations hereunder shall constitute an event of default by StoresOnline.
Upon the occurrence of an event of default by StoresOnline, Reseller shall
provide StoresOnline with written notice specifying the nature of such
default. If StoresOnline fails to cure such default within thirty (30) days
after receipt of such notice, Reseller may, at its sole option, terminate
this Agreement and/or seek any other available remedies available at law or
in equity.
c. INSOLVENCY. The commencement of any proceeding (voluntary or
involuntary) in bankruptcy or insolvency by or against either party hereto,
or the appointment (with or without the party's consent) of an assignee for
the benefit of creditors or a receiver with respect to either party hereto
shall constitute an event of default hereunder, and the non-defaulting party
may elect to terminate this Agreement immediately.
11. DISPUTE RESOLUTION.
a. It is the intent of the parties that all disputes arising under
this Agreement be resolved expeditiously, amicably, and at the level within
each party's organization that is most knowledgeable about the disputed
issue. The parties understand and agree that the procedures outlined in this
Paragraph 11 are not intended to supplant the routine handling of inquiries
and complaints through informal contact with customer service representatives
or other designated personnel of the parties. Accordingly, for purposes of
the procedures set forth in this paragraph, a "DISPUTE" is a disagreement
that the parties have been unable to resolve by the normal and routine
channels ordinarily used for such matters. Before any dispute arising under
this Agreement, other than as provided in subparagraph e. below, may be
submitted to arbitration, the parties shall first follow the informal and
escalating procedures set forth below.
(1) The complaining party will notify the other party in
writing of the dispute, and the non-complaining party will exercise good
faith efforts to resolve the matter as expeditiously as possible.
(2) In the event that such matter remains unresolved for
thirty (30) days after the delivery of the complaining party's written
notice, a senior representative of each party shall meet or confer within ten
(10) business days of a request for such a meeting or conference by either
party to resolve such matter.
(3) In the event that the meeting or conference specified in
(2) above does not resolve such matter, the senior officer of each party
shall meet or confer within ten (10) business days of the request for such a
meeting or conference by either party to discuss and agree upon a mutually
satisfactory resolution of such matter.
(4) If the parties are unable to reach a resolution of the
dispute after following the above procedure, or if either party fails to
participate when requested, the parties may proceed in accordance with
subparagraph b. below.
b. Except as provided in subparagraph e. below, any dispute arising
under this Agreement shall, after utilizing the procedures in subparagraph
a., be resolved by final and binding arbitration in Long Beach, California,
before a single arbitrator selected by, and in accordance with, the rules of
commercial arbitration of the American Arbitration Association. Each party
shall bear its own costs in the arbitration, including attorneys' fees, and
each party shall bear one-half of the cost of the arbitrator.
c. The arbitrator shall have the authority to award such damages as
are not prohibited by this Agreement and may, in addition and in a proper
case, declare rights and order specific performance, but only in accordance
with the terms of this Agreement.
d. Either party may apply to a court of general jurisdiction to
enforce a arbitrator's award, and if enforcement is ordered, the party
against which the order is issued shall pay the costs and expenses of the
other party in obtaining such order, including reasonable attorneys' fees.
e. Notwithstanding the provisions of subparagraphs a. and b. above,
any action by StoresOnline to enforce its rights under Paragraph 12e of this
Agreement or to enjoin any infringement of the same by Reseller may, at
StoresOnline's election, be commenced in the state or federal courts of Los
Angeles, California, and Reseller consents to personal jurisdiction and venue
in such courts for such actions.
12. GENERAL.
a. ENTIRE AGREEMENT; AMENDMENT. This Agreement constitutes the
entire agreement between StoresOnline and Reseller and supersedes all
previous understandings, negotiations and proposals, whether written or oral.
This Agreement may not be altered, amended or modified except by an
instrument in writing signed by duly authorized representatives of each
party. In the event that any one or more provisions contained in this
Agreement should for any reason be held to be unenforceable in any respect,
such unenforceability shall not affect any other provisions hereof, and this
Agreement shall be construed as if such unenforceable provision had not been
contained herein.
b. FORCE MAJEURE. Neither party shall be liable to the other for
delays or failures to perform an obligation to the other hereunder if such
delay or failure to perform is due to any act of God, acts of civil or
military authority, labor disputes, fire, riots, civil commotion's, sabotage,
war, embargo, blockage, floods, epidemics, delays in transportation,
inability beyond StoresOnline's reasonable control to obtain necessary labor,
materials or manufacturing facilities, or when due to governmental
restrictions, including the inability of StoresOnline to obtain appropriate
U.S. export license approval or the subsequent suspension of same. In the
event of any such delay or failure, the parties shall have an additional
period of time equal to the time lost by reason of the foregoing in which to
perform hereunder.
c. GOVERNING LAW. This Agreement shall be governed in all
respects by the laws of the State of California, without regard to principles
of choice of law.
d. ASSIGNMENT. Neither party shall assign this Agreement or any
rights hereunder without the prior written consent of the other party, which
consent shall not be unreasonably withheld, except that either party may
assign this Agreement without the consent of the other to a successor or
affiliate entity.
e. DISCLOSURE OF INFORMATION. Each party hereto acknowledges
that, in the course of meeting its obligations under this Agreement, it will
obtain information relating to the other party, which is of a confidential
and proprietary nature ("PROPRIETARY INFORMATION"). Such Proprietary
Information may include, but is not limited to, trade secrets, know-how,
inventions, techniques,
processes, programs, schematics, data, customer lists, financial information
and sales and marketing plans.
Each party shall at all times during the term of this Agreement and
for one year after its termination, keep in confidence and trust from any
person or entity, all Proprietary Information of the other party and shall
not disclose or use such Proprietary Information without the prior written
consent of the party which owns such Proprietary Information, unless
compelled to disclose such Proprietary Information by judicial or
administrative process (including, without limitation, in connection with
obtaining the necessary approvals of this Agreement and the transactions
contemplated hereby of governmental or regulatory authorities) or by other
requirements of law. Upon termination of this Agreement, each party shall
promptly return to the other party all Proprietary Information under
itscontrol and all copies thereof.
Neither party shall disclose the specific terms of this Agreement to
any third parties except as may be mutually agreed or as required by law or
the order of a court of competent jurisdiction.
The above limitations on disclosure of Proprietary Information shall
not apply to information which becomes publicly available through no act of
the disclosing party, is released by the owning party in writing with no
restrictions, is lawfully obtained by the disclosing party without breach of
this Agreement from third parties without obligations of confidentiality, is
previously known by the disclosing party without similar restrictions as
shown by documents in its possession prior to disclosure or is independently
developed by the disclosing party.
f. COMPLIANCE WITH LAW. Both parties hereto shall comply with all
applicable laws the violation of which would have a material adverse effect
on the other party or its business, including, without limitation, the export
control laws of the United States of America and prevailing regulations which
may be issued from time to time by the United States Department of Commerce
and any export control regulations of the United States and those countries
involved in transactions concerning the exporting, importing and re-exporting
of Services purchased under application of these terms and conditions.
Reseller shall also comply with the United States Foreign Corrupt Practices
Act and shall indemnify StoresOnline from violations of such act by Reseller.
This provision shall survive any termination or expiration of the Agreement.
g. EXERCISE OF REMEDIES. Any delay or omission by either party to
exercise any right or remedy under this Agreement shall not be construed to
be a waiver of any such right or remedy or any other right or remedy
hereunder.
h. LIMITATION OF LIABILITY. NEITHER PARTY SHALL BE LIABLE TO THE
OTHER FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES DUE TO
FAILURE TO PERFORM ITS OBLIGATIONS HEREUNDER.
i. HEADINGS. Headings contained in this Agreement are for
convenience only, are not a part of this Agreement, and do not in anyway
interpret, limit or amplify the scope, extent or intent of this Agreement or
any of the provisions hereof.
j. REGULATORY APPROVAL. Reseller warrants that the Services and
the Malls, when utilized with its own products, will comply with all
applicable industry and governmental standards and requirements.
StoresOnline assumes no responsibility or liability for these governmental
and regulatory standards or requirements, which liability and responsibility
is assumed entirely by Reseller. Upon request, StoresOnline will provide
copies of regulatory approvals to Reseller.
k. BRANDING. StoresOnline shall have the right to place a "POWERED
BY NETGATEWAY" or "POWERED BY STORESONLINE" byline in a mutually agreed upon
location and in a size and design to be mutually agreed upon by the parties
on each storefront site and on each Mall site.
l. PUBLICITY. StoresOnline (or its parent company, Netgateway,
Inc.) shall have the right to inform its customers and the public that
StoresOnline has entered into this Agreement with Reseller. Each party may
use the other's name or the name of its customers in marketing the Services
and the development of the Malls and may link to each other's websites, but
neither party will perform any actions which will harm the other's or its
customers name and reputation. Any such marketing materials will be provided
in advance to the other party for comment before publication.
m. NOTICES. Any notice required in connection with this Agreement
shall be given in writing and shall be deemed effective upon personal
delivery or three business days after deposit in the United States mail,
registered or certified, postage prepaid and addressed to the party entitled
to such notice at the address indicated below such party's signature line on
this Agreement or at such other address as such party may designate by ten
(10) days' advance written notice to the other party. All facsimile notices
shall be confirmed by written notice mailed, as provided above, within five
(5) days of the date of the facsimile is sent. Once confirmed, the notice
shall be effective as of the date of the facsimile.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
to be effective as of the date set forth herein.
XXXXXXXXXXXX.XXX, INC., A CALIFORNIA CORPORATION
By /s/ Xxxxxx X. Xxxxxxx, Xx.
-------------------------------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
--------------------------------------------
Their: Authorized Agent
-------------------------------------------
Address for Notices:
000 Xxxxxxxxx, Xxxxx 000
Xxxx Xxxxx, XX 00000
(000) 000-0000
NETGATEWAY, a Nevada corporation
By /s/ Xxxxxx X. Xxxxxxx, Xx.
-------------------------------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
--------------------------------------------
Their: President
-------------------------------------------
Address for Notices:
000 Xxxxxxxxx, Xxxxx 000
Xxxx Xxxxx, XX 00000
(000) 000-0000
CableONE, Inc.
By /s/ Xxxxxx Xxxxxxxx
-------------------------------------------------
Name: Xxxxxx Xxxxxxxx
--------------------------------------------
Its: Vice President
-------------------------------------------
Address for Notices:
Address: 0000 X. 0xx Xxxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
E-mail Address:
Company URL: xxx.xxxxxxxx.xxx
Technical Contact:
Telephone:
E-mail Address:
ADDENDUM
Name of Reseller CableONE, Inc. Description of Reseller's Business: Cable
------------------ -----
Type Entity: Corporation television operator
----------------------- -----------------------------------------
Date of Agreement: August 30, 1999
----------------- -----------------------------------------
[**REDACTED**]
Tier: Reseller
MALL DEVELOPMENT SERVICES AND PRICES
1. DEVELOPMENT. StoresOnline shall design and develop one or more
on-line Malls, to be branded around Reseller's name, brand and image, and
shall link to the Reseller's branded StoresOnline solution. The Malls will
include appropriate URL addresses, four to six featured products and stores
from various Reseller and third party advertisers, additional Reseller and
non-Reseller advertiser stores and products catalogued with text references,
and links to top-tier eCommerce sites. The Malls will also include an
appropriate search engine, commerce functionality, banner and other
appropriate advertising space and such other features as the parties shall
mutually agree. The Mall will be capable of cataloguing stores independently
or in conjunction with all other Malls developed hereunder, if any, as well
as other malls which belong to the StoresOnline electronic mall network.
Reseller agrees and understands that the storefronts of its end-user
customers may be placed in one or more electronic malls developed and/or
operated by StoresOnline.
[**REDACTED**]
EXHIBIT A
STANDARD LICENSE AGREEMENT TERMS
1. LICENSE. This License allows you to use any software associated
with the provision of the Services.
2. RESTRICTIONS. You may not use, copy, modify or transfer the
program, or any copy, modification or merged portion, in whole or in part,
except as expressly provided for in this License. If you transfer possession
of any copy, modification or merged portion of the program to another party,
your License is automatically terminated.
3. TERM. The License is effective until terminated. You may
terminate it at any other time by notifying Reseller of your intent to do so.
The License will also terminate upon the occurrence of certain events set
forth elsewhere in this Agreement. Upon such termination, you agree to
destroy the program together with all copies, modifications and merged
portions in any form.
4. EXPORT LAW ASSURANCES. You agree that neither the pogrom nor any
direct product thereof is being or will be shipped, transferred or
re-exported, directly or indirectly, into any country prohibited by the US
Export Administration Act and the regulations thereunder or will be used for
any purpose prohibited by the Act.
5. LIMITED WARRANTY. The program is provided "AS IS" without
warranty of any kind, either expressed or implied, including, but not limited
to, the implied warranties of merchantability and fitness for a particular
purpose. The full text of the warranty is provided in the user manual.
6. LIMITED LIABILITY. In no event will StoresOnline be liable to you
for any damages, including any lost profits, lost savings or other incidental
or consequential damages arising out of the use of inability to use such
program even if StoresOnline has been advised of the possibility of such
damages, or for any claim by any other party.
7. GENERAL. If you are a Government end-user, this License conveys
only "RESTRICTED RIGHTS," and in its use, disclosure and duplication are
subject to Federal Acquisition Regulations, subparagraph (c)(1)(11)
52.227-7013. (See U.S. Government End-User provisions in manual.) This
License will be construed under the laws of the State of California, except
for that body of law dealing with conflicts of law. If any provision of the
License shall be held by a court of competent jurisdiction to be contrary to
law, that provisions shall be enforced to the maximum extent permissible, and
the remaining provisions of this License shall remain in full force and
effect.
