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EXHIBIT 10.6
PROMOTIONAL AND CUSTOMER SERVICES AGREEMENT
THIS PROMOTIONAL AND CUSTOMER SERVICES AGREEMENT (this "Agreement"),
effective as of October 1, 1999, is made by and between XXXXXXXXXXXX.XXX INC., a
Delaware corporation, and its permitted successors and assigns (the "Company"),
and XXXXX & XXXXXX, INC., a Delaware corporation, and its permitted successors
and assigns ("B&T").
WHEREAS, the Company operates as an Internet supplier of textbooks
("Textbooks") and B&T provides Textbooks to customers of the Company and
performs a variety of promotional and customer services functions for the
Company in connection therewith;
WHEREAS, the Company and B&T are parties to that certain Equity
Investment and Operating Agreement dated July 10, 1998, as amended by the First
Amendment to Equity Investment and Operating Agreement and License Agreement by
and between the Company and B&T dated October 9, 1998 and as further amended by
that certain Operating Agreement dated October 1, 1999 (the "Operating
Agreement");
WHEREAS, the Company and B&T also are parties to that certain Amended
and Restated Drop Ship Agreement of even date herewith (the "Drop Ship
Agreement");
WHEREAS, the Company and B&T also are parties to that certain Amended
and Restated Database License Agreement of even date herewith (the "License
Agreement", together with this Agreement, the Operating Agreement and the Drop
Ship Agreement, the "Related Agreements"); and
WHEREAS, the Company and B&T now desire to enter into this Agreement to
describe certain additional services to be provided by B&T to the Company;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants contained in this Agreement, the parties, intending to be legally
bound, agree as follows:
I. PRODUCT AND WEB SITE DEVELOPMENT. B&T will continue to assist the
Company in developing the Company's product and customer base. Such assistance
may include providing guidance to the Company in its efforts at identifying
appropriate titles to offer, and licensing to the Company the following data
elements, where available to B&T, for display by the Company on the Company's
Internet web site (the "Web Site"): (i) bibliographic and other limited product
information about the selected Textbook titles; (ii) scanned images of Textbook
jacket art; (iii) table of contents; and (iv) updated Inventory status. Subject
to the terms and conditions of the License Agreement, B&T will provide the
Company (x) available scanned images of jacket art and (y) table of contents on
items that B&T has designated in the Database (as defined in the License
Agreement) as either in stock or on order at the Investor's Momence, Illinois
location or at such other of B&T's locations as the Company and B&T have agreed
may be used for fulfillment services. Such information will be updated from time
to time as additional information becomes available.
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II. ADDITIONAL SERVICES
In addition, B&T agrees to provide additional services to the Company,
including but not limited to the following (the "Additional Services"): (i)
add titles and other information for new Textbooks into the Database; (ii)
procure shipping boxes customized with the Company's name and logo; (iii)
restock and replace damaged and returned books pursuant to the Drop Ship
Agreement; (iv) maintain and license the Licensed Data to the Company pursuant
to the License Agreement; (v) maintain and use EDI protocol to transmit
invoices, orders, reports and other information to the Company; and (vi)
perform additional marketing and other services for the Company as the parties
may agree from time to time. The cost of the Additional Services is set forth
in Schedule I attached hereto. The parties may amend Schedule I by mutual
agreement from time to time.
III. LIMITATION OF WARRANTIES
A. NOTWITHSTANDING ANYTHING CONTAINED HEREIN OR IN ANY RELATED
DOCUMENT, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY HEREUNDER FOR ANY
INDIRECT, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES ARISING OUT OF THIS
AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
B. The provisions of this Article 3 shall survive the termination
or expiration of this Agreement.
IV. MISCELLANEOUS
A. Entire Agreement. This Agreement constitutes the sole and
entire agreement of the parties with respect to the subject matter hereof.
B. Publicity. All general notices, releases, statements and
communications to employees, suppliers, distributors and customers of a party
and to the general public and the press relating to the transactions covered by
the Operating Agreement or any Related Agreement shall be made by such party
hereto only at such times and in such manner as may be mutually agreed upon by
the Company and B&T, except as may be required by any applicable law and
regulation. Either party may describe the terms, and include a copy, of this
Agreement and the exhibits hereto in any filing under the Securities Act of
1933, as amended, or the Securities Exchange Act of 1934, as amended.
C. Expenses. Each party hereto shall be solely responsible for
its respective expenses in connection with the negotiation, preparation and
performance of this Agreement (including, without limitation, all legal and
accounting expenses).
D. Parties in Interest. All obligations and agreements contained
in this Agreement by or on behalf of any of the parties hereto shall bind and
inure to the benefit of the respective successors and permitted assigns of the
parties hereto, whether so expressed or not. Except as otherwise expressly
provided herein, nothing in this Agreement is intended to confer upon any other
person or entity any rights or remedies hereunder.
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E. Notices. All notices, requests, consents, and other
communications hereunder shall be in writing and shall be deemed effectively
given and received upon delivery in person, or one business day after delivery
by national overnight courier service or by telecopier transmission with
acknowledgment of transmission receipt, or three business days after deposit
via certified or registered mail, return receipt requested, in each case
addressed as follows:
if to the Company: XxxxxxxXxxxx.xxx Inc.
0000 Xxxxxx Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attention: Xx. Xxxx X. Xxxx
Telephone: (000) 000-0000
with a copy to: Xxxx Xxxxxxx
0000 Xxxxxxxxxxxxx Xxxxx
00xx Xxxxx
XxXxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
if to B&T: Xxxxx & Xxxxxx, Inc.
Five XxxxXxxxxx Xxxxx
Xxxxx 000
0000 Xxxxx Xxxxx Xxxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, Executive
Vice President
Fax: (000) 000-0000
with copy to: Dow, Xxxxxx & Xxxxxxxxx, PLLC
0000 Xxx Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
or, in any such case, at such other address or addresses as shall have
been furnished in writing by such party to the others.
F. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO THAT STATE'S PROVISIONS OF CONFLICT OF LAWS.
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G Counterparts. This Agreement may be executed in one or more
counterparts by facsimile or original signature, each of which shall be deemed
an original, but all of which together shall constitute one and the same
instrument.
H. No Waivers; Amendments. No failure or delay on the part of
any party in exercising any right, power or remedy hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right,
power or remedy preclude any other or further exercise thereof or the exercise
of any other right, power or remedy. The remedies provided for herein are
cumulative and are not exclusive of any remedies that may be available to any
party at law or in equity or otherwise. Any provision of this Agreement may be
amended or waived if, but only if, such amendment or waiver is in writing and
is signed by the Company and B&T.
I. Severability. If any provision of this Agreement shall be
declared void or unenforceable by a judicial or administrative authority, the
validity of any other provision and of the entire Agreement shall not be
affected thereby.
J. Gender. All pronouns and all variations thereof shall be
deemed to refer to the masculine, feminine or neuter, singular or plural, as
the identity of the person or persons, thing or entity may require.
K. Headings. The section headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
L. Termination. This Agreement shall terminate upon the
termination or expiration of the Operating Agreement.
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M. Assignment. Neither party hereto shall assign its rights or
obligations hereunder without the prior written consent of the other party
hereto, which consent shall not be unreasonably withheld or delayed; provided,
however, that the Company may assign its rights and obligations hereunder to
CollegeOps LLC, a Delaware limited liability company and wholly-owned
subsidiary of the Company. Unless otherwise provided in a writing signed by
the Company and B&T, such assignment shall not relieve the Company of any of
its obligations hereunder.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
The Company: B&T:
XXXXXXXXXXXX.XXX INC. XXXXX & XXXXXX, INC.
By: /s/ Xxxx X. Xxxx By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxx X. Xxxx Name: Xxxxx X. Xxxxxxx
Title: Chief Executive Officer Title: Executive Vice President
SIGNATURE PAGE TO
PROMOTIONAL
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