CERTAIN PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BASED UPON A REQUEST FOR
CONFIDENTIAL TREATMENT, AND NON-PUBLIC INFORMATION HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION.
PANDESIC AGREEMENT EXHIBIT 10.16
CONTRACT DATE: CONTRACT NUMBER:
------------------------------- ----------------
--------------------------------------------------------------------------------
MERCHANT INFORMATION
--------------------------------------------------------------------------------
ONLINE SPECIALTY RETAILING, INC
COMPANY NAME:. D.B.A XXXXXXXXX.XXX CONTACT NAME: XXX XXXXXX
--------------------------------- -------------------
BILLING ADDRESS: 0000 0XX XXXXXX, 0XX XXXXX PHONE: (000) 000-0000 X 000
------------------------------ --------------------------
XXXXXXX, XX 00000 FAX: (000) 000-0000
---------------------------------------------- ----------------------------
E-MAIL: XXX@XXXXXXXXX.XXX
---------------------------------------------- -------------------------
BILLING CONTACT: XXX XXXXXX TECHNICAL CONTACT: XXX XXXXXX
------------------------------ --------------
PHONE: (000) 000-0000 X 000 PHONE: (000) 000-0000 X 000
---------------------------------------- --------------------------
FAX: (000) 000-0000 FAX: (000) 000-0000
------------------------------------------ ----------------------------
E-MAIL: XXX@XXXXXXXXX.XXX E-MAIL: XXX@XXXXXXXXX.XXX
--------------------------------------- -------------------------
Merchant hereby orders the Pandesic E-Business Solution Service from PANDESIC
LLC ("PANDESIC"). This Order Form is subject to the Terms and Conditions and
the Pandesic reference documents referred to herein (collectively, the
"Agreement"). This Agreement is valid when accepted by an authorized
representative of PANDESIC.
The Pandesic E-Business Solution Service consists of (i) the installation,
implementation, hosting and administration of Merchant's e-commerce web site
(the "Hosting Services") on computers and system software (the "Pandesic
Equipment") operated by PANDESIC or its hosting partner (the "Hosting
Partner"), and (ii) licenses of associated Pandesic and third party
("Supplier") application software (the "Software") for such purposes.
Other services provided hereunder include (i) training on the operation of
the Pandesic E-Business Solution Service, and (ii) maintenance and support
services (the "Maintenance Services"), all as described from time to time in
PANDESIC reference documents. The Pandesic E-Business Solution Service and
the other services are referred to collectively as the "Services."
MERCHANT HAS READ AND AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS
AGREEMENT. MERCHANT AND PANDESIC AGREE THAT THE TERMS AND CONDITIONS OF THIS
AGREEMENT REPLACE AND SUPERSEDE ALL PROPOSALS, WRITTEN OR ORAL, AS WELL AS
OTHER COMMUNICATIONS BETWEEN MERCHANT AND PANDESIC RELATING TO THIS AGREEMENT.
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ACCEPTANCE
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ACCEPTED BY MERCHANT: ACCEPTED BY PANDESIC LLC:
SIGNATURE: /S/ XXXXXXXX X. XXXXXX SIGNATURE: /S/ XXXXX XXXXXXX
---------------------------------- ---------------------
PRINT NAME: XXXXXXXX X. XXXXXX PRINT NAME: XXXXX XXXXXXX
--------------------------------- --------------------
TITLE: CHAIRMAN TITLE: PRESIDENT
-------------------------------------- -------------------------
DATE: MARCH 10, 1999 DATE: MARCH 18, 1999
--------------------------------------- --------------------------
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TRH 121698 Pandesic Agreement -- Order Form Page 1
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PANDESIC AGREEMENT
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RATE SHEET
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INITIAL SET-UP CHARGE
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- Merchant shall pay an initial set-up charge of [***], payable upon
acceptance of this Agreement.
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MONTHLY TRANSACTION FEES
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- The Monthly Base Fee shall be [***].
- Monthly Transaction Fees will be calculated using the Monthly Base Fee plus
a percentage of monthly revenue (defined as gross sales plus freight
revenue, excluding taxes) generated by the sale or other distribution of
products or services provided by Merchant through use of the Pandesic
E-Business Solution.
- Monthly Transaction Fees commence upon the Technical Installation (the date
that the Pandesic software is loaded on the servers and the servers are
ready to accept Merchant's configuration and functional installation of its
products), at the site of Pandesic's Hosting Partner ("").
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ALTERNATIVE MINIMUM FEES
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- Merchant shall pay to Pandesic the greater of the Alternate Minimum Fees or
the Monthly Transaction Fees (as calculated above) in any month of the
term. The Alternate Minimum Fees shall be calculated as [***] per active
server page presented that month plus [***] times the number of `hits'to
Merchant's web site.
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FEE SCHEDULE
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Monthly Transaction Fees shall be determined in accordance with the following
table:
--------------------- ----------------------- ---------------------------- -----------------------------------------------
MERCHANT MONTHLY SALES MONTHLY TRANSACTION FEE
--------------------- ----------------------- ---------------------------- -----------------------------------------------
FROM TO BASE FEE INCREMENTAL TRANSACTION %
--------------------- ----------------------- ---------------------------- -----------------------------------------------
[***] [***] [***] Plus [***] of the amount of [***]
--------------------- ----------------------- ---------------------------- -----------------------------------------------
[***] [***] [***] Plus [***] of the amount over [***]
--------------------- ----------------------- ---------------------------- -----------------------------------------------
For example, a merchant that transacts [***] of monthly gross sales and [***] of
freight revenue would be responsible for a Monthly Transaction Fee of [***].
Monthly Base Fee for [***] in Monthly Sales [***]
[***] of [***] (amount over [***]) [***]
Total owed to Pandesic [***]
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GRR 121898 Pandesic Agreement -- Rate Sheet Page 2
PANDESIC AGREEMENT
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RATE SHEET
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ACCEPTANCE
-------------------------------------------------------------------------------
ACCEPTED BY MERCHANT: ACCEPTED BY PANDESIC LLC:
SIGNATURE: /S/ XXXXXXXX X. XXXXXX SIGNATURE: /S/ XXXXX XXXXXXX
---------------------------------- ---------------------
PRINT NAME: XXXXXXXX X. XXXXXX PRINT NAME: XXXXX XXXXXXX
--------------------------------- --------------------
TITLE: CHAIRMAN TITLE: PRESIDENT
-------------------------------------- -------------------------
DATE: MARCH 10, 1999 DATE: MARCH 18, 1999
--------------------------------------- --------------------------
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GRR 121898 Pandesic Agreement -- Rate Sheet Page 3
PANDESIC AGREEMENT
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TERMS AND CONDITIONS
The following terms and conditions (these "Terms") govern the provisions by
Pandesic LLC ("Pandesic") of the Services described on the Pandesic E-Business
Solution Service Order Form ("Order Form") to the company ("Merchant")
identified on the Order Form.
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1. OBLIGATIONS OF PANDESIC
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1.1 Pandesic will provide, deploy, support and maintain the
Pandesic E-Business Solution Service.
1.2 Pandesic hereby grants to Merchant a non-exclusive and
non-assignable license to use the Software in the United
States for the purpose of conducting business over the
Internet.
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2. OBLIGATIONS OF MERCHANT
-------------------------------------------------------------------------------
2.1 Merchant shall comply with all of the terms of this Agreement,
including but not limited to, the Acceptable Use Policy (the
"Use Policy"), as the Use Policy may be modified from time to
time during the term of this Agreement.
2.2 Merchant may use the Services for the purpose of conducting
electronic commerce activities, including processing third
party data, solely in connection with products and services
offered via Merchant's website. Subject to the foregoing
Merchant shall not offer, for a fee or free of charge,
services consisting of the processing of data through the use
of the Services for, or for the benefit of, any person other
than Merchant.
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3. PAYMENT
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3.1 Merchant shall pay the fees set out in the Rate Sheet,
attached hereto.
3.2 All payments shall be made in U.S. Dollars. In all cases,
payments are due upon receipt by Merchant of the applicable
monthly invoices.
3.3 Payments and any additional charges, including, but not
limited to, any early cancellation charges, accrued interest
and late fees shall be invoiced in arrears and shall appear on
the monthly invoices for Services or separate invoices, as
determined by Pandesic in its sole discretion.
3.4 In addition to any other remedies that may be available to
Pandesic under this Agreement (including, but not limited to,
those in connection with the termination of this Agreement
pursuant to Section 13 below) or applicable law, invoices that
are not paid in full thirty (30) days after receipt by
Merchant (a "Payment Default") will be subject to interest
charges of the lesser of one and one-half percent (1.5%) per
month or portion thereof and the highest amount permitted by
law, which interest shall accrue daily.
3.5 Merchant shall be liable for all amounts owed to Pandesic
pursuant to this Agreement, irrespective of the termination of
this Agreement. Merchant also shall pay to Pandesic all
expenses incurred by Pandesic in exercising any of its rights
under this Agreement or applicable law with respect to the
collection of a Payment Default, including, but not limited
to, reasonable attorneys'fees and the fees of any collection
agency retained by Pandesic.
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PANDESIC AGREEMENT
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TERMS AND CONDITIONS
3.6 Merchant shall be liable for, and shall reimburse Pandesic and
indemnify and hold Pandesic harmless from all local, state,
federal and non-United States taxes or similar assessments or
charges (including any interest and penalties imposed
thereon), other than taxes based on the net income of
Pandesic, arising out of or relating to this Agreement or the
provision of the Services hereunder.
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4. MAINTENANCE
-------------------------------------------------------------------------------
4.1 Pandesic designates time periods ("Scheduled Maintenance
Windows") during which it may limit or suspend the
availability of the Pandesic Equipment and/or Software
involved in providing its Services (an "Outage") to perform
necessary maintenance or updates. Scheduled Maintenance
Windows currently are each Tuesday and Friday between the
hours of 4:00 a.m. and 8:00 a.m. and the third Saturday of
each month between the hours of 4:00 a.m. and 12 noon Pacific
Standard Time.
4.2 If planned maintenance has the possibility of making the
Pandesic Equipment used by Merchant inaccessible to the
Internet during a Scheduled Maintenance Window, Pandesic will
provide not less than twenty-four (24) hours prior electronic
mail or other notice to Merchant of the Scheduled Maintenance
Window during which the Outage is planned.
4.3 In addition, Pandesic reserves the right to perform any
required maintenance work or updates outside of the Scheduled
Maintenance Window with a minimum of seven (7) days prior
notice to Merchant. Pandesic also may perform at any time any
maintenance or updates it believes is necessary to preserve
the integrity of Pandesic's network and services offered
regardless of whether it has provided any notice to Merchant
thereof. Pandesic shall perform any upgrades to the Software
at times mutually acceptable to both parties.
4.4 Merchant agrees that Pandesic, its Hosting Partner and its
third party service providers shall have access to its intenet
commerce system and web site for the purposes contemplated in
this Agreement.
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5. CONFIDENTIALITY
-------------------------------------------------------------------------------
5.1 In the course of business dealing, both parties will be
releasing valuable trade secrets and other confidential
information to the other including, in Pandesic's case,
information about the Services and Software provided by
Pandesic, Hosting Partner and Suppliers, and in Merchant's
case, its customer business data. Each party recognizes that
such information constitutes valuable trade secrets of the
other.
5.2 Accordingly, each party agrees that (i) the provisions of this
Agreement, (ii) any information whatsoever with respect to the
Services and the Software, (iii) the course of dealing between
Pandesic and Merchant hereunder, (iv) Merchant's data, and (v)
all other non-public information (whether technical or
otherwise) made available or disclosed to such party (the
"recipient") by the other (the "disclosing party")
(collectively, the "Confidential Information") shall be
treated by recipient on a confidential basis and shall not be
reproduced, reduced to writing, or disclosed to any employee
or contractor except as necessary to provide or use the
Services, or to any other person or entity without the prior
written consent of disclosing party.
5.3 Upon termination of this Agreement, any documentation
reflecting any Confidential Information of the other party
shall be returned promptly to such party. Disclosure of
information pursuant to applicable statutes or regulations
(collectively, "Laws") shall be excepted from the provisions
of this Section 5; provided, however, that prior to any
disclosure by the recipient pursuant to any Laws, recipient
will assert the confidential nature of the Confidential
Information and will
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GRR 022699 Pandesic Agreement -- Terms and Conditions Page 2
PANDESIC AGREEMENT
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TERMS AND CONDITIONS
cooperate fully with the disclosing party, at the disclosing
party's expense, in protecting against any such disclosure
including, but not limited to, obtaining a protective order
or similar order narrowing the scope of such disclosure of
the Confidential Information. In the event such protection is
not obtained, the recipient shall disclose the Confidential
Information only to the extent necessary to comply with the
Laws.
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6. PROPRIETARY RIGHTS INDEMNIFICATION
-------------------------------------------------------------------------------
6.1 Merchant agrees to indemnify and hold harmless Pandesic, all
individuals or entities controlling, controlled by or under
common control with Pandesic (each, a "Pandesic Affiliate"),
Hosting Partner, and the officers, directors and employees of
Pandesic, Pandesic Affiliates and Hosting Partner (an
"Indemnified Party") against any losses, claims, damages,
liabilities, penalties, actions, proceedings or judgements
(collectively "Losses") to which an Indemnified Party may
become subject, related to or arising out of any infringement
or misappropriation or alleged infringement or
misappropriation of any United States copyright, trade secret
or other proprietary right related to any hardware or software
(other than the Pandesic Equipment and the Software) utilized
by Merchant in connection with any of the Services or to any
Merchant data distributed via the Pandesic E-Business Solution
Service and will reimburse such Indemnified Party for all
legal and other expenses, including reasonable aftorneys'fees
incurred by such Indemnified Party in connection with
investigating, defending or settling any Loss, whether or not
in connection with pending or threatened litigation in which
such Indemnified Party is a party.
6.2 Pandesic agrees to indemnify and hold harmless Merchant
against any Losses to which Merchant may become subject,
related to or arising out of any infringement or
misappropriation or alleged infringement or misappropriation
of any United States patent, copyright, trade secret or other
proprietary right related to the Pandesic Equipment or the
Software and will reimburse Merchant for all legal and other
expenses, including reasonable aftorneys' fees incurred by
Merchant in connection with investigating, defending or
settling any Loss, whether or not in connection with pending
or threatened litigation in which Merchant is a party. This
indemnification does not relate to the Merchant data or
matters that arise from Merchant data or conduct. The
provisions of this Agreement relating to indemnification shall
survive termination of this Agreement.
6.3 In the event of any claim of infringement or misappropriation
under paragraph 6.2, above, Pandesic may, at its option and
expense either (i) procure for Merchant the right to continue
using the Pandesic Equipment or the Software, (ii) replace
such Pandesic Equipment or Software with non-infringing
equipment or software, (iii) modify the same so as to make it
non-infringing, or (iv) terminate the Agreement as to the
infringing Pandesic Equipment or Software and refund to
Merchant any of the unused portion of the fees paid for
Services prior to such termination.
-------------------------------------------------------------------------------
7. INDEMNIFICATION
-------------------------------------------------------------------------------
7.1 In addition to other indemnification provided herein, and
except as to matters covered by paragraph 6.2, above. Merchant
agrees to indemnify and hold harmless Pandesic, Pandesic
Affiliates, Hosting Partner, and the officers, directors and
employees of Pandesic, Pandesic Affiliates, and Hosting
Partner (each an "Indemnified Party") against any Losses to
which an Indemnified Party may become subject and which Losses
arise out of, or relate to this Agreement or Merchant's use of
the Services, and will reimburse an Indemnified Party for all
legal and other expenses, including reasonable attorneys'fees
incurred by such Indemnified Party in connection with
investigating, defending or settling any Loss whether or not
in connection with pending or threatened litigation in which
such Indemnified Party is a party.
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GRR 022699 Pandesic Agreement -- Terms and Conditions Page 3
PANDESIC AGREEMENT
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TERMS AND CONDITIONS
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8. OTHER MERCHANT ASSURANCES
-------------------------------------------------------------------------------
8.1 During any time period when Merchant is provided access to any
facilities, hardware or other property owned or leased by, or
otherwise under the control of Pandesic or Hosting Partner
(collectively "Pandesic Property") pursuant to this Agreement,
Merchant shall (i) maintain insurance, with Pandesic and
Hosting Partner as a named payee, covering any damage or
destruction to Pandesic Property (collectively `Damage'); and
(ii) reimburse Pandesic for all expenses incurred by Pandesic
in replacing or repairing, as the case may be, any Damage
caused by Merchant.
8.2 Merchant shall not attempt to copy, modify, alter,
disassemble, decompile, translate or convert into human
readable form, or reverse engineer, all or any part of the
Software and shall not use the Software to develop any
derivative works or any functionally compatible or competitive
software, except to the extent permitted under applicable law.
However, Merchant may create interfaces to the Software or
modify the provided interfaces to permit interfacing with
Merchant's legacy database systems solely for Merchant's use
in connection with the Services provided pursuant to this
Agreement. Merchant shall not separate the Software into its
component parts, nor incorporate any component files into any
product, nor shall it remove any proprietary, trademark or
copyright markings or confidentiality legends within the
Software.
8.3 Merchant shall not use the Services in any manner which
violates any law or regulation, is for a fraudulent purpose,
contravenes public policy, or may cause Pandesic or its
Suppliers to be subject to investigations prosecution or legal
action. Merchant shall only use the Services to process sales
transactions which, to the best of its knowledge, are genuine
and do not arise out of fraudulent or illegal activities in
the sale of goods, information or services. Merchant agrees,
represents and warrants that Merchant's web site shall not
contain any content or materials that infringe on the rights
of any other party or violate any applicable law or regulation
or any proprietary, contract, moral, privacy or other third
party right, or which would expose Pandesic, its Hosting
Partner or its Suppliers to any civil or criminal liability or
otherwise would affect Pandesic's or its Hosting Partner's
business. Merchant shall indemnify and save Pandesic, Pandesic
Affiliates, Hosting Partner, and the officers, directors and
employees of Pandesic harmless (each an "Indemnified Party")
against any claim, liabilities and costs to which an
Indemnified Party may become subject to and which arise out
of, or relate to any content contained on Merchant's web site
or which result from the use of the Services in contravention
of this section. Merchant shall (a) acquire all authorizations
necessary in respect of any hyperlinks to its commerce web
site, and (b) provide Pandesic and its Hosting Partner with
accurate information concerning descriptive claims,
warranties, guarantees, nature of its business and the
addresses where its business is conducted.
8.4 Merchant appoints Pandesic as its agent to accept customer
relationships with certain of its Suppliers (such as
CyberCash, Inc.) as more fully described in the reference
documents.
-------------------------------------------------------------------------------
9. USE OF MERCHANT'S NAME
-------------------------------------------------------------------------------
9.1 Pandesic shall be permitted to use Merchant's name in
connection with proposals to prospective merchants and
otherwise in print and in electronic form for marketing or
other purposes, including, but not limited to, use in
connection with (i) compliance with applicable laws or
regulations; and (ii) the protection of any rights relating to
Pandesic or its business.
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10. USE OF PANDESIC'S NAME
-------------------------------------------------------------------------------
10.1 Merchant may use the name "PANDESIC(TM)" in connecton with the
Services or otherwise only with the prior written consent of
Pandesic. Pandesic shall be permitted to place an image of its
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PANDESIC AGREEMENT
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TERMS AND CONDITIONS
logo on Merchant's web site in order to identify Pandesic as
the e-business solution provider to Merchant. The parties
shall jointly agree the size and location of such logo.
10.2 Except as set forth herein, Merchant shall have no right to
use or display the trademarks of Pandesic, Hosting Partner or
Suppliers.
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11. WARRANTY
-------------------------------------------------------------------------------
11.1 Subject to Section 4, Pandesic will use its reasonable
commercial best efforts to assure that the Services will be
available twenty-four (24) hours a day, seven (7) days a week.
If the Services are unavailable for more than a total of 4
hours in any week, other than as a result of the maintenance
activities described in Section 4, Merchant's sole and
exclusive remedy shall be that, in the event the Fees are
below the Monthly Base Fee in the month of availability, the
fees shall be waived on a pro rata basis for the period of
unavailability.
11.2 For purposes of this Agreement, a week shall be considered to
run from Sunday to Saturday and the Services shall be deemed
to be unavailable if (i) the system network is incapable of
transmitting data (subject to Section 15 below); or (ii)
Pandesic's standard hardware, software, or operating system is
functioning in a manner that prevents http, ftp, or mail
access to the Internet server or the software is unable to
process standard functions of the Pandesic E-Business Solution
Service ("Unavailability").
11.3 Notwithstanding the foregoing, Pandesic shall not be in breach
of this warranty for any period of unavailability which
results from Merchant's action or inaction, including, but not
limited to, Merchant's use of Merchant owned, non-standard, or
unsupported hardware and/or software installed by the Merchant
(or by Pandesic at the Merchant's request).
11.4 Pandesic warrants that the Maintenance Services will be
performed in accordance with generally accepted industry
standards for comparable services. Merchant's sole and
exclusive remedy for any breach of the foregoing warranty
shall be to provide Pandesic with notice of such nonconformity
within thirty (30) days of the defective performance and
Pandesic shall re-perform such Maintenance Services.
11.5 YEAR 2000 COMPLIANCE
11.5.1 The Pandesic-owned portion of the Software shall be
Year 2000 Compliant as of September 30, 1999.
11.5.2 In this regard, "Year 2000 Compliant" shall mean
that the software shall continue to function before,
during and after January 1, 2000 without error
related to, or the product of, date data which
represents or references different centuries, and,
more specifically, (a) correctly manages and
manipulates data involving dates, including
single-century formulae and multi-century formulae,
(b) correctly identifies the year 2000 as a leap
year, (c) does not include any default references
to year 99 or otherwise use any date data field to
indicate any information other than a specific
date, and (d) uses four digits to indicate the year
in storage, use and communication of all date data
date-related functions.
11.5.3 The Software also includes third party Software. In
some cases, the Year 2000 capabilities of such third
party Software are unwarranted by the Suppliers of
such Software. Pandesic shall test the third party
Software for Year 2000 Compliance and shall use its
reasonable commercial best efforts to cause such
Software to be made Year 2000 Compliant by their
Suppliers.
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PANDESIC AGREEMENT
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TERMS AND CONDITIONS
11.5.4 Pandesic is not responsible for errors resulting from
third-party systems or devices, which directly access
the database and overwrite the database date fields
or from the improper integration of non-Year 2000
Compliant systems by Merchant.
11.6 EXCEPT AS SET FORTH HEREIN, PANDESIC, HOSTING PARTNER AND
SUPPLIERS DISCLAIM ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR
STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES
OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
11.7 PANDESIC DOES NOT WARRANT THE ACCURACY OF THE TAX DATA AND
OTHER TAX CALCULATIONS MADE BY THE SOFTWARE. MERCHANT BEARS
FULL RESPONSIBILITY FOR THE DETERMINATION OF THE ACCURACY AND
APPLICABILITY OF THE OUTPUT FROM THE SOFTWARE AND ACKNOWLEDGES
AND UNDERSTANDS THAT TAX CALCULATIONS OFTEN INVOLVE
INTERPRETATIONS AND THAT THE DATA OF MANY JURISDICTIONS CAN
CHANGE RAPIDLY. MERCHANT UNDERSTANDS THAT PANDESIC IS NOT
PROVIDING SPECIFIC TAX, LEGAL, ACCOUNTING OR OTHER EXPERT
ADVICE AND MERCHANT SHOULD OBTAIN THE ADVICE OF QUALIFIED
PROFESSIONALS IN THE AREA.
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12. LIMITATION OF LIABILITY
-------------------------------------------------------------------------------
12.1 NEITHER PANDESIC, HOSTING PARTNER NOR SUPPLIERS SHALL BE
LIABLE FOR (i) ANY INDIRECT, INCIDENTAL, SPECIAL,
CONSEQUENTIAL OR EXEMPLARY DAMAGES, OR FOR ANY LOSS OF
PROFITS, LOSS OF REVENUE OR BUSINESS INTERRUPTION OR LOSS OF
BUSINESS INFORMATION RESULTING FROM THE SERVICES, THE PANDESIC
EQUIPMENT OR THE SOFTWARE EVEN IF PANDESIC HAS BEEN ADVISED OF
THE POSSIBILITY THEREOF OR (ii) ANY LOSS OF DATA RESULTING
FROM DELAYS, NON-DELIVERIES, MISDELIVERIES OR SERVICE
INTERRUPTIONS CAUSED BY PANDESIC OR MERCHANT. In no event
shall Pandesic's aggregate cumulative liability for any
damages whatsoever to Merchant, its employees, officers,
directors, agents or contractors arising out of or related to
this Agreement exceed the fees paid by Merchant to Pandesic,
during the term, with respect to the Services.
12.2 Neither Pandesic nor any of its officers, directors,
employees, contractors or agents shall be liable for any
damage or destruction of equipment or other materials
belonging to, leased by, or otherwise under the control of
Merchant, whether or not any such equipment or Materials are
at any time located in facilities owned or operated by
Pandesic, except where such damage or destruction is a direct
result of the gross negligence, recklessness or willful
misconduct of Pandesic or any of its officers, directors,
employees, contractors and agents.
12.3 The limitations of liability provided in this section shall
inure to the benefit of Pandesic, Pandesic Affiliates, Hosting
Partner, Suppliers and to all of the respective officers,
directors, employees and agents of Pandesic and such other
entities ("Limited Liability Parties").
12.4 The limitations of liability in this Agreement shall apply
whether (i) the action in which recovery is sought is based in
contract, tort (including, but not limited to, negligence or
strict liability), statute or otherwise; or (ii) a Limited
Liability Party is alleged to be liable jointly with one or
more parties or otherwise.
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13. TERM AND TERMINATION
-------------------------------------------------------------------------------
13.1 The initial term of this Agreement shall commence on the
Contract Date and shall continue for twenty-four months from
the date that the Pandesic software is loaded on the servers
and the servers are ready to
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TERMS AND CONDITIONS
accept Merchant's configuration and functional
installation of its products, ("Technical Installation"),
following which it shall automatically renew for successive
twenty-four month terms at the charges in effect at the
commencement of each such terms, unless written notice of
non-renewal by either party is delivered to the other party
at least ninety (90) days prior to the end of the then-current
term.
13.2 TERMINATION BY PANDESIC
13.2.1 In addition to any other rights it may have under
this Agreement or applicable law, Pandesic may, at
its option, immediately terminate this Agreement,
upon (i) a Payment Default, which is not cured within
ten (10) business days of notice of such default,
(ii) Merchant's failure to comply with any other
obligation of Merchant under this Agreement
including, but not limited to, its failure to comply
with any of the terms of the Use Policy, which is
not cured within ten (10) business days of notice of
such default, (iii) Merchant ceasing to do business
in the normal course, becoming or being declared
insolvent or bankrupt, being the subject of any
proceeding relating to liquidation or insolvency
which is not dismissed within ninety (90) calendar
days or making an assignment for the benefit of its
creditors, (iv) any attempt by Merchant to derive
any source code from the Software, (v) breach of
Merchant's obligations under Section 5 hereto, or
(vi) Pandesic, Hosting Partner or any Supplier
becomes the subject of an investigation by a law
enforcement agency or threatened with prosecution as
a result of Merchant's use of the Services.
13.2.2 Pandesic may, at its option, terminate this Agreement
and retain the initial set-up charge paid by Merchant
in the event that Merchant does not complete its
pre-work obligations to permit deployment of the
Pandesic E-Business Solution Service by Pandesic
within six (6) months of the Contract Date.
13.3 TERMINATION BY MERCHANT
13.3.1 Merchant may terminate this Agreement in the event
of a material breach by Pandesic of its obligations
under this Agreement which breach is not cured
within ten (10) business days after written notice
thereof is received by Pandesic (a "Permissible
Termination"), other than breaches that have defined
remedies associated therewith. In the event of a
Permissible Termination, Merchant shall pay a
pro-rated Monthly Transaction Fee based on the
number of days Pandesic provided Services prior to
the date of termination of this Agreement by
Merchant under this Section 13.3, if the level of
Fees for such month would fall within the Monthly
Base Fee.
13.3.2 If Merchant terminates this Agreement other than in a
Permissible Termination, Merchant agrees that it
would be impractical and/or extremely difficult to
fix or establish the actual damage sustained by
Pandesic as a result of such termination and agrees
that Merchant shall pay to Pandesic as liquidated
damages an amount equal to all unpaid Monthly Base
Fees for the remainder of the then-current term of
this Agreement.
13.4 Upon termination of this Agreement, Pandesic and Merchant
shall have no obligations to each other except as provided in
this Agreement. Upon termination of this Agreement, Merchant
shall (i) pay all amounts due and owing to Pandesic, (ii)
remove from Pandesic's and Hosting Partner's premises all
property owned by Merchant in respect of the Services
provided, and (iii) return to Pandesic all equipment,
documentation, software, access keys and any other property
provided to Merchant by Pandesic under this Agreement. Any
property of Merchant not removed from Pandesic's and Hosting
Partner's premises within ten (10) days after such termination
shall become the property of Pandesic, which may, among other
things, dispose of such property without the payment of any
compensation to Merchant. Pandesic shall return to Merchant
all of its data residing on the Pandesic Equipment. The rights
and obligations of the parties hereto
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GRR 022699 Pandesic Agreement -- Terms and Conditions Page 7
PANDESIC AGREEMENT
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TERMS AND CONDITIONS
which by their nature would continue beyond the termination
or cancellation of this Agreement (including, without
limitation, those relating to confidentiality, payment of
charges, limitations of liability and indemnification) shall
survive any such termination or cancellation.
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14. DISPUTE RESOLUTION
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14.1 If a dispute or difference of any kind whatsoever (a "Dispute"
shall arise between Pandesic and Merchant in connection with,
relating to or arising out of this Agreement, including the
interpretation, performance, non-performance, or termination
hereof, the parties shall attempt to settle such Dispute in
the first instance by mutual discussions. If such Dispute has
not been resolved within thirty (30) days by mutual
discussions, the parties shall endeavor to settle the Dispute
by mediation under the Mediation Rules of the American
Arbitration Association prior to any recourse to arbitration
pursuant to Section 14.2 below.
14.2 If such Dispute cannot be settled within thirty (30) days
after submission to mediation pursuant to Section 14.1 above
(the "Mediation Period"), such Dispute shall be settled by an
arbitral tribunal (the "Tribunal") under the Arbitration Rules
of the American Arbitration Association (the "Arbitration
Rules"). Each party shall appoint an arbitrator within thirty
(30) days after the expiration of the Mediation Period, which
arbitrators shall then jointly appoint a third arbitrator
within thirty (30) days after the appointment of the first two
arbitrators, to act as president of the Tribunal. Arbitrators
not so appointed shall be appointed pursuant to the
Arbitration Rules. The costs of the arbitration shall be borne
by the parties as determined by the Tribunal. The award
rendered in any arbitration commenced hereunder shall be final
and conclusive and judgment thereon may be entered in any
court having jurisdiction for its enforcement. Neither party
shall (i) appeal to any court from the decision of the
Tribunal; or (ii) have any right to commence or maintain any
suit or legal proceeding concerning a Dispute until such
Dispute has been determined in accordance with the arbitration
procedure provided for herein, and then only for enforcement
of the award rendered in such arbitration.
14.3 Notwithstanding the foregoing, nothing in Sections 14.1 or
14.2 shall be deemed as preventing either party from seeking
injunctive relief from the courts pursuant to Section 14.4
below. All mediation and arbitration proceedings pursuant to
this Agreement shall take place in Santa Xxxxx County,
California.
14.4 Notwithstanding the foregoing, each party acknowledges that
violation of Section 5.2 will cause irreparable harm to the
other not adequately compensable by monetary damages. In
addition to other relief, each party agrees that injunctive
relief shall be available to the other in the event of such
violations without necessity of posting bond to prevent any
actual or threatened violation of such section.
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15. GENERAL
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15.1 Pandesic shall not be deemed to be in default of any provision
of this Agreement or be liable for any delay, failure of
performance or interruption of the provision of Services to
Merchant resulting, directly or indirectly, from any (i)
weather conditions, natural disasters or other acts of God,
(ii) action of any governmental or military authority, (iii)
failure caused by telecommunication or other Internet provider
(but not including Hosting Partner), or (iv) any other force
or occurrence beyond its control, including any termination of
the agreement between Pandesic and the Hosting Partner.
15.2 Hosting Partner and Suppliers are third-party beneficiaries to
this Agreement to the extent that this Agreement contains
provisions which relate to Merchant's use of Hosting Partner's
services or the Supplier Software. Such provisions are made
for the benefit of such third parties and are enforceable by
them in addition to Pandesic.
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GRR 022699 Pandesic Agreement -- Terms and Conditions Page 8
PANDESIC AGREEMENT
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TERMS AND CONDITIONS
15.3 Unless otherwise specified herein, any notices or other
communications required or permitted hereunder shall be
sufficiently given if in writing and delivered personally or
sent by facsimile transmission, email, internationally
recognized overnight courier, registered or certified mail
(postage prepaid with return receipt requested), to the
address or facsimile number of Merchant as set forth in the
Order Form or Pandesic as set forth below. Such notices or
other communications shall be deemed received (i) on the date
delivered, if delivered personally; (ii) on the date that
return confirmation is received, if sent by facsimile; (iii)
on the business day after being sent by an internationally
recognized overnight air courier; or (iv) five (5) days after
being sent, if sent by first class registered mail, return
receipt requested.
Pandesic LLC
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Director of Law & Corporate Affairs
Facsimile Number: (000) 000-0000
15.4 Any claims arising out of or related to this Agreement must
be brought no later than one year after it has accrued.
15.5 Nothing in this Agreement or in the course of dealing between
Pandesic and Merchant pursuant hereto shall be deemed to
create between Pandesic and Merchant (including their
respective directors, officers, employees and agents) a
partnership, joint venture, association, employment
relationship or any other relationship other than that of
independent contractors with respect to each other.
15.6 This Agreement shall be governed by and construed in
accordance with the laws of the State of California without
regard to choice of law provisions that would cause the
application of the law of another jurisdiction.
15.7 Failure by either Pandesic or Merchant to enforce any of the
provisions of this Agreement or any rights with respect hereto
shall not be considered to be waiver of such provisions or
rights, or to in any way affect the validity of this
Agreement.
15.8 If one or more of the provisions contained in this Agreement
are found to be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the
remaining provisions shall not be affected.
15.9 This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
15.10 Pandesic may change its Hosting Partner at any time in its
sole discretion.
15.11 Upon reasonable notice and in a manner which does not unduly
interfere with Merchant's operations, Pandesic shall have the
right to audit and inspect Merchant's use of the Pandesic
E-Business Solution Service and the sales records associated
therewith in order to verify compliance with the terms of this
Agreement. In the event there is a discrepancy of five percent
(5%) or more in the accounts, Merchant shall be responsible
for and shall pay the reasonable costs of such audit to
Pandesic.
15.12 Pandesic, as part of its E-Business Solutions Services
provides certain equipment to Merchant for use in connection
with the said Services. Merchant holds such equipment subject
and subordinate to the rights of Pandesic. Merchant will keep
such equipment free from any liens or encumbrances whatsoever
and will indemnify and hold Pandesic harmless from it failure
to do so. Merchant will maintain such equipment in good
operating order, protect such from deterioration
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GRR 022699 Pandesic Agreement -- Terms and Conditions Page 9
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PANDESIC AGREEMENT
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TERMS AND CONDITIONS
other than normal wear and tear and will not use such for
any purposes other than contemplated herein.
15.13 This Agreement constitutes the entire agreement of the parties
and supersedes all oral negotiations and prior writings with
respect thereto. Except as set forth in Section 13 above, this
Agreement may not be amended, modified or terminated unless it
is in writing signed by both parties hereto.
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16. SPECIAL TERMS
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16.1 Notwithstanding any other provision in this Agreement, it is
hereby agreed as follows:
16.1.1 Merchant shall be permitted to have, for no
additional Fees, up to [***]warehouses (suppliers
and/or supplier locations). Merchant shall be
responsible for the costs of all equipment required
at such warehouse locations, as well as all
telecommunication costs associated therewith.
Pandesic shall initially train Merchant in the
implementation of the Service at such location and
thereafter all such implementations shall be the
responsibility of Merchant.
16.1.2 Merchant may have multiple web sites as the front end
of the Pandesic Service, provided that all
transactions from such web sites are processed
through Merchant's Pandesic Service transaction
servers and that all customer revenues are captured
by the Pandesic Service (and Fees are paid in respect
thereof. Pandesic acknowledges and agrees that such
arrangement shall not be deemed as breaching
Merchant's obligations set out in Section 2.2 of
these Terms and Conditions.
16.1.3 The time periods for cure of a breach by the parties
of their obligations provided for in Sections 13.2.1
and 13.3.1 shall be thirty (30) days instead of ten
(10) days.
16.1.4 Section 10 hereof shall be amended such that any use
of either party's name by the other shall require the
approval of the party whose name is in question,
which approval shall not be unreasonably withheld.
16.1.5 If, at the end of the Planning, Analysis and Design
Phase of the deployment period Merchant concludes
that the Service will not meet its needs to an
acceptable level, Merchant has the option of
terminating the Agreement and Pandesic shall refund
[***] to Merchant.
16.1.6 Merchant may transfer or assign this Agreement as a
result of the sale of all or substantially all of
the assets of Merchant or a merger with or into a
third party, except in the event that such transfer
or assignment is to a competitor of Pandesic or, in
Pandesic's view, is not otherwise conducive to
Pandesic's business interests. In such case Pandesic
does not deem transfer or assignment in Pandesic's
interest, Merchant shall be allowed to continue
operation of the Pandesic system for six months
as long as Merchant runs Pandesic system solely with
Merchant's then current employees who were operating
the system prior to the transfer or assignment. No
training or knowledge transfer to the acquiring
company regarding the Pandesic solution is permitted.
16.1.7 Pandesic agrees to not sign certain other entities
to the Pandesic Service, subject to ecommerce sales
by Merchant through the Pandesic Service being
greater than [***] in 1999 and [***] for 2000. This
exclusivity shall not affect any current Pandesic
merchants. Subject to the above, Pandesic shall not
sign any (i) named drop-ship suppliers of Merchant,
(ii) named companies selling over the internet which
have at least [***] of their sales being similar
goods as are offered by Merchant and who use the
drop-
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GRR 022699 Pandesic Agreement -- Terms and Conditions Page 10
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PANDESIC AGREEMENT
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TERMS AND CONDITIONS
ship model, and (iii) [***] or [***]. The named
companies shall be set out in a letter from Merchant
to Pandesic contemporaneously with the execution of
this Agreement.
16.1.8 Should a sale or transfer in assets to a third party
as described in 16.1.6 occur, the Merchant has the
option of decreasing the length of the initial term
of this Agreement from 24 months to 12 months. All
other provisions of Section 13.1 shall remain the
same. In such case, Merchant will give Pandesic six
months notice.
16.1.9 Pandesic shall add server and bandwidth capacity
commensurate with the business requirements of
Merchant and its customers. Said server and bandwidth
capacity shall be such that system performance and
transaction response times shall be in line with
industry norms.
16.1.10 Merchant shall be permitted to procure, on its own
account and expense, additional servers for purposes
that relate to its e-commerce site. In such event, if
Merchant wants to co-locate servers at DIGEX,
Pandesic shall work with Merchant to assist in
receiving best possible terms from DIGEX for such
additional servers.
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ACCEPTANCE
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ACCEPTED BY ONLINE SPECIALITY RETAILING, INC.
DBA XXXXXXXXX.XXX: ACCEPTED BY PANDESIC LLC:
SIGNATURE: /S/ XXXXXXXX X. XXXXXX SIGNATURE: /S/ XXXXX XXXXXXX
----------------------------------- ---------------------
PRINT NAME: XXXXXXXX X. XXXXXX PRINT NAME: XXXXX XXXXXXX
---------------------------------- --------------------
TITLE: CHAIRMAN TITLE: PRESIDENT
--------------------------------------- -------------------------
DATE: MARCH 10, 1999 DATE: MARCH 18, 1999
---------------------------------------- --------------------------
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GRR 022699 Pandesic Agreement -- Terms and Conditions Page 11
[***] indicates confidential treatment for omitted text has been requested.
XXXXXXXXX.XXX
March 10, 1999
Pandesic LLC
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Dear Sirs:
The following lists are provided per paragraph 16.1.7 of the Pandesic Agreement
GRRO22699 -- Terms and Conditions. These lists may be updated from time to time
during the course of our agreement:
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1. NAMED DROP-SHIP SUPPLIERS OF XXXXXXXXX.XXX
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COMPANY PRODUCTS COMPANY PRODUCTS
------- -------- ------- --------
Xxxxxxxx & Xxxxx Prime beef steaks and roasts Xxxxx & Xxxxx Fruits, gift baskets
Advantage International Imported cheeses Harbor Sweets Hand-make gift chocolates
Bella Cucina Artful Food Pasta, sauces, olive oil Hickory Farms Cheeses, sausages, gift baskets
Blue Crab Bay Company Soups, crackers and Bloody Highland Sugarworks Vermont maple syrup and
Xxxx mix from the breakfast gift packs
Chesapeake Bay area
Xxxxx & Xxxxx Xxxxxx Xxxx-TM- and other Xxxxx Farms Pickled vegetables
fine chocolates for appetizers and snacks
Caffe Appassionato Speciality coffee Xxxx Xx. Xxxx Cheesesticks Gourmet cheesesticks
Xxxxx Xxxxxx California olive oils Killer Pecans Twice-cooked junior mammoth
pecan halves
Celebration Speciality Birthday and occasion cakes, Xxx & Xxxxx'x Gourmet Pretzels
Foods tarts, pastries Pretzels
Xxxxxx'x Ribs Barbecue ribs from Chicago Les Encore Cookies
Xxxxxxx Xxxxxx Foods Cooking sauces Lobster Gram Live Maine lobster dinners
Chef's Pride Fresh turkeys Melissa's Exotic fruit
Chewy's Rugulach Pastries Mo Hotta Mo Betta Hot sauces
Chukar Cherry Company Dried fruits and candies, Moonshine Trading Honeys and nut butters
gift baskets
Cibo Fresh Specialities Fresh herb butters, cheeses Omaha Steak Company Steaks and other beef products
and pestos
Cinnabar Speciality Chutneys and sauces Oregon Orchard Hazelnuts and chocolate coated
Foods, Inc. hazelnuts
Cinnabon Cinnamon rolls Pacific Cookie Company Oatmeal, chocolate chip and
other cookies
Cornfields Gourmet popcorn Xxxx Proudhomme's Magic Spice mixes
Seasoning Blends
Xxxxxxxx Farms Wreaths, dried flowers, Partners Crackers Crackers
garlic braids
Da Vinci Gourmet Flavored syrups Patti's Plum Puddings Plum pudding
D'Artagnan Pates, sausages, specialty meats Perugina Chocolates
Edible Eats Gourmet cheesecakes Xxxxxxxxxx Cavier Imported caviar
Elena's Pasta and pasta sauces Port Chatham Smoked Salmon Smoked salmon and gift packs
The Famous Pacific Chocolate Decadence, tortes Quality Citrus Packs Extra fancy Sunkist oranges and
Dessert Company and brownies grapefruit
Fox's Fine Foods Relishes and pestos Reward Specialty Food Gourmet granola
Company
Xxxxxxxxx'x Foods of Arizona All natural hot and fruit salsas Torn Ranch Dried fruits and nuts, gift packs
Grafton Village Cheese Vermont cheddar cheeses Tortuga Rum cakes
Graysmarsh Farms Jams and preserves Two Buddies BBQ BBQ sauces and marinades
Greenwich Bay Clams Rhode Island littleneck clams Ultimate Baking Company Gourmet biscotti
Grimaud Farms Muscovy Duck, rabbit, goose Ultimate Basket Gift baskets
Xxxxxxx Foods Sauces and pickled vegetables Xxxxxx'x Shortbreads Imported shortbread from Scotland
Ham I Am! Hickory-smoked hams, turkeys,
quail and beef brisket
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2. NAMED COMPANIES SELLING SPECIALTY FOOD PRODUCTS OVER THE INTERNET
USING DROP-SHIP SUPPLIERS
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COMPANY COMPANY
------- -------
[***]
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ACCEPTANCE
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ACCEPTED BY ONLINE SPECIALTY RETAILING, INC.
DBA XXXXXXXXX.XXX: ACCEPTED BY PANDESIC LLC:
SIGNATURE: /S/ XXXXXXXX X. XXXXXX SIGNATURE: /S/ XXXXX XXXXXXX
---------------------------------- ---------------------
PRINT NAME: XXXXXXXX X. XXXXXX PRINT NAME: XXXXX XXXXXXX
--------------------------------- --------------------
TITLE: CHAIRMAN TITLE: PRESIDENT
-------------------------------------- -------------------------
DATE: MARCH 10, 1999 DATE: MARCH 18, 1999
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