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PREFERRED SUPPLIER AGREEMENT
THIS PREFERRED SUPPLIER AGREEMENT ("AGREEMENT") IS ENTERED INTO BETWEEN
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, INC., WITH ITS OFFICES AT ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇,
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ("PURCHASEPRO") AND WATTAGE MONITOR, WITH ITS OFFICES AT
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ("CUSTOMER") AS OF THE DATE THIS AGREEMENT
IS SIGNED BY PURCHASEPRO (THE "EFFECTIVE DATE").
Capitalized terms used in this Agreement shall have the meanings given them in
Exhibit B or in the context in which the term is used, as the case may be.
1. PREFERRED SUPPLIER SERVICES. Subject to the terms and conditions of this
Agreement, PurchasePro shall provide to Customer the products and services
with usage specifications and limitations as set forth in Exhibit A
attached hereto (the "Preferred Supplier Services"), including all standard
updates, modifications and enhancements to, and versions of, such products
and services as such become generally available from PurchasePro.
2. PREFERRED SUPPLIER SERVICES FEE. As payment for the Preferred Supplier
Services, Customer shall pay PurchasePro the fees identified in Exhibit A
(the "Preferred Supplier Services Fee"). The Preferred Supplier Services
Fee is exclusive of any taxes imposed by reason of this Agreement and
Customer shall remain solely responsible for payment of such taxes
(excluding taxes based on PurchasePro's net income).
3. TERM. The term of this Agreement shall begin on the Effective Date and
expire on the second (2nd) anniversary of the Effective Date. If either
party breaches any material term, condition or covenant contained in this
Agreement and does not cure such breach within thirty (30) days after
receipt of written notice thereof from the other party (i.e., the party not
in breach), the party not in breach may terminate this Agreement, effective
immediately upon written notice to the breaching party. Upon expiration or
termination of this Agreement for any reason, the Preferred Supplier
Services shall be immediately discontinued and Customer shall immediately
discontinue all use of and return to PurchasePro all copies of any written
or electronic information which is the property of PurchasePro and was
furnished or otherwise provided to Customer pursuant to, or as a result of,
this Agreement. In addition, all financial obligations of the parties under
this Agreement shall be settled within fifteen (15) days of the expiration
or termination of this Agreement for any reason. The following Sections
shall survive expiration or termination of this Agreement for any reason:
Section 3 of the mainbody of this Agreement; Section 3 of Exhibit A; and
Sections 1, 2, 4, 5, 6, 8 and 11 of Exhibit B.
4. ENTIRE AGREEMENT. This Agreement (inclusive of Exhibits A and B attached
hereto, which are hereby incorporated by reference) contains the entire
agreement of the parties and supercedes any and all prior representations
or agreements, whether oral or written, relating to the subject matter of
this Agreement. In the event any provision set forth in the mainbody of
this Agreement conflicts with any provision contained in either of the
Exhibits attached to this Agreement, the provision contained in the
mainbody of this Agreement shall govern.
IN WITNESS WHEREOF, the parties acknowledge that they have read, understood and
have executed this Agreement below and agree to be bound by its terms.
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, INC. WATTAGE MONITOR INC. ("CUSTOMER")
------------------------------------
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. Carton By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------- ------------------------------------------------
Date: November 20, 2000 Date: November 18, 2000
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Official Notice should be sent to: Official Notice should be sent to:
SVP Sales & Strategic Development Name ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. -------------------------------------------
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ #▇ Company Wattage MOnitor Inc.
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ -------------------------------------------
Address ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
-------------------------------------------
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
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Phone ▇▇▇-▇▇▇-▇▇▇▇
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with a copy to:
General Counsel
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ #▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
702.316.7000
Preferred Supplier Agreement
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EXHIBIT A
PREFERRED SUPPLIER SERVICES AND FEES
1. SCOPE OF SALES AND MARKETING SERVICES
PURCHASEPRO AGREES TO ESTABLISH CUSTOMER AS A PREFERRED SUPPLIER BY
PROVIDING THE FOLLOWING PREFERRED SUPPLIER SERVICES:
A. Designating Customer as a preferred supplier on the Global Marketplace,
which shall include preferred placement of Customer on the Global
Marketplace including but not limited to prominent placement on the
PurchasePro corporate home page (rotation), welcome login page,
preferred listing in searches (including, without limitation, based on
keywords) and placement on PurchasePro's partner page.
B. Co-marketing Customer as a preferred supplier to current and future
Private Marketplaces. Customer understands and agrees that its
designation and/or placement on any Private Marketplace is subject to
the sole discretion of the owner of each such Private Marketplace who
shall have final authority on and approval of Customer's designation
and/or placement on or inclusion into such Private Marketplace. If and
only to the extent that the owner of such Private Marketplace has
approved such designation and placement, PurchasePro shall designate
and place Customer as a preferred supplier on such Private Marketplace
in a manner substantially similar to Customer's designation and
placement on the Global Marketplace.
C. Including Customer in all sales and marketing materials of PurchasePro
that PurchasePro generally uses to promote other entities who are
similarly situated to Customer and who have entered into a preferred
supplier agreement with PurchasePro that is substantially similar to
the Agreement. PurchasePro agrees that Wattage Monitor will be
similarly situated to all other Preferred Suppliers. Any such materials
shall be similar in all material respects to similar marketing
materials for such other entities. Such materials shall include the
following:
- At least one feature per year in trade shows specific to
Customer's industry.
- Two features per year in PurchasePro preferred supplier "virtual
tradeshow."
- At least one feature per year in PurchasePro quarterly "e-zine"
newsletter.
- Monthly promotional feature on PurchasePro's preferred supplier
promotions page (unlimited impressions).
- Opt-in email to all PurchasePro members introducing new preferred
suppliers.
- Inclusion in all field sales marketing collateral that PurchasePro
generally makes available to preferred suppliers similar to
Customer, including placement of Customer's name on a preferred
supplier page in PurchasePro marketing kit and in PurchasePro
field sales PowerPoint presentations.
D. Where applicable, cooperating with Customer on joint sales calls, trade
shows and other events upon the reasonable request of Customer.
E. Provide a limited, non-exclusive license to Customer for the use of
PurchasePro's trademarks, trade name, and logo in Customer's
promotional materials. All use of PurchasePro trademarks, trade name
and logo by Customer must be approved in writing by PurchasePro.
CUSTOMER AGREES TO:
A. Recommend PurchasePro as an e-commerce solution to its customers, which
shall include Customer's providing mutually agreed-upon prominent
banner placement and links to the PurchasePro homepage on Customer's
web site(s).
B. Where applicable, cooperate with PurchasePro on joint sales calls,
trade shows and other events upon the reasonable request of
PurchasePro.
C. Cooperate with PurchasePro on working toward utilizing currently
available technology to promote Customer and facilitate transactions
and traffic.
D. Cooperate with PurchasePro and comply promptly with all reasonable
requests, subject to the limitations set forth in the Agreement, with
respect to the establishment of Customer as a preferred supplier and
designate a project manager authorized to act on behalf of Customer in
connection with the performance by Customer of its obligations
hereunder.
E. Provide a limited, non-exclusive license to PurchasePro for the use of
Customer's trademarks, trade name and logo, as directed by Customer, in
promotional materials of PurchasePro that PurchasePro generally uses to
list other preferred suppliers similarly situated to Customer, users,
alliances and/or partners designated and/or placed on the Global
Marketplace.
F. Pay all amounts for which Customer is obligated hereunder, in such
manner and at such times as set forth herein.
2. PARTNERSHIP MANAGEMENT. PurchasePro and Customer shall each assign an
employee to serve as an account manager/partnership manager or equivalent
in an effort to maximize the business and financial benefits to each party
under the Agreement.
3. PAYMENT & BILLING.
Preferred Supplier Agreement
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A. PREFERRED SUPPLIER SERVICES FEE. Customer shall pay PurchasePro Two
Hundred and Fifty Thousand Dollars ($250,000) annually for the right to
be a preferred supplier (the "Preferred Supplier Services Fee"),
subject to the restrictions set forth in this Agreement, payable in
four (4) consecutive quarterly installments of Sixty Two Thousand and
Five Hundred Dollars ($62,500) each, with the first such payment due
sixty days after the Effective Date and each subsequent payment due and
payable three (3) months after the due date of the immediately
preceding payment.
B. SUBSCRIPTION FEE SALES COMMISSION. Within sixty (60) days after the end
of each calendar quarter during the term of the Agreement, PurchasePro
shall pay Customer a sales commission equal to twenty-five percent
(25%) of the Net Subscription Fees paid to PurchasePro during such
calendar quarter by any person or entity who becomes a Member in the
Global Marketplace through Customer's preferred supplier placement.
C. TRANSACTION FEE REVENUE SHARE. Within thirty (30) days after the end of
each calendar quarter during the term of this Agreement, Customer shall
pay PurchasePro a transaction fee equal to twenty-five (25%) of the
total dollar amount of all fees accepted by Customer during such
calendar quarter through the Global Marketplace or any Private
Marketplaces in which Customer is a preferred supplier.
Preferred Supplier Agreement
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EXHIBIT B
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MARKETPLACE SERVICES STANDARD TERMS AND CONDITIONS
1. CONFIDENTIALITY. Each party (the "Furnishing Party") acknowledges and agrees
that in order to further the performance of this Agreement, it may be required
to disclose to the other party (the "Receiving Party") certain confidential
information, including but not limited to methods, processes, configurations,
intended uses information concerning its services and web sites, technology,
software, tools, business, or plans for the future in connection with any of the
foregoing, information concerning customers, suppliers, personnel, and other
business relationships, sales and marketing plans, financial information other
confidential information, all of which shall be deemed the "Confidential
Information" of the Furnishing Party for the purposes of the Agreement if, with
respect to such information disclosed in tangible form, it is marked
"Confidential" or its equivalent or would reasonably be considered of a
confidential nature, and, with respect to such information disclosed orally, it
is identified as confidential at the time of disclosure. The Receiving Party
shall, and shall cause its employees and agents to, strictly maintain the
confidentiality of the Confidential Information of the Furnishing Party and not
disclose, disseminate or otherwise give such Confidential Information to any
other person, firm, organization or third party, except for an employee or agent
of the Receiving Party who has a reasonable need to obtain access thereto in
connection with the performance of the Receiving Party's obligations and/or
exercise of the Receiving Party's rights under the Agreement and who has agreed
in writing to not disclose, and not to use for any other purpose, such
Confidential Information. Except as otherwise provided herein, all Confidential
Information furnished or otherwise disclosed by the Furnishing Party to the
Receiving Party in the course of performing under the Agreement will remain the
property of and be deemed proprietary to the Furnishing Party. Notwithstanding
the foregoing, "Confidential Information" will be deemed to exclude any
particular information that, as evidenced by written documentation: (i) is or
becomes publicly known to the Receiving Party without violation of this
Agreement; (ii) is already known to the Receiving Party without restrictions at
the time of its disclosure by the Furnishing Party; (iii) is independently
developed by the Receiving Party without reference to the Furnishing Party's
Confidential Information; (iv) after its disclosure by the Furnishing Party, is
made known to the Receiving Party without restrictions by a third party having
the right to do so; or (v) is legally required to be disclosed by the Receiving
Party pursuant to a judicial order from a court of competent jurisdiction
(provided that the Receiving Party promptly informs the Furnishing Party of the
requirement and affords the Furnishing Party a reasonable opportunity to contest
the required disclosure). Each party's obligations under this Section 1 shall
survive expiration or termination of the Agreement for any reason.
2. LIMITED WARRANTIES, INDEMNITY AND DISCLAIMER. PurchasePro warrants and
represents that it has full title and ownership of intellectual property
delivered in conjunction with the Marketplace Services and has the full power
and authority to perform its obligations under the Agreement. PurchasePro will
defend Customer from and against any claim or action brought against Customer
alleging that its performance of the Marketplace Services infringe any valid
U.S. patent, copyright, trade secret or proprietary right of a third party,
provided that Customer (a) promptly gives written notice to PurchasePro of any
such claim or action, (b) gives PurchasePro the right to control and fully
cooperates with PurchasePro in the defense of such claim or action, (c) has not
made or caused to be made any modifications to the Marketplace Services, and (d)
has not used the Marketplace Services other than as specified in the Agreement
or in any documentation delivered in connection with the Marketplace Software
Product, and PurchasePro will pay any final award of damages against Customer
resulting from such claim or action, including any attorneys fees and costs
awarded, or any settlement amount agreed to by PurchasePro. Customer's sole and
exclusive remedy for any breach of warranty shall be commercially reasonable
efforts to correct the non-conformity or, if incapable of being corrected,
termination of the Agreement and refund of any consideration paid by Customer
pursuant to the Agreement. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE MARKETPLACE
SERVICES ARE PROVIDED TO CUSTOMER "AS IS", PURCHASEPRO MAKES NO WARRANTIES OF
ANY KIND, EXPRESS OR IMPLIED, REGARDING THIS AGREEMENT OR THE MARKETPLACE
SERVICES AND, TO THE MAXIMUM EXTENT PERMITTED BY LAW, SPECIFICALLY DISCLAIMS ANY
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR AGAINST
INFRINGEMENT, AND THE FOREGOING STATES PURCHASEPRO'S ENTIRE LIABILITY AND
CUSTOMER'S SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF WARRANTY.
3. ASSIGNABILITY. Customer may not assign the Agreement without the prior
written consent of PurchasePro and any attempt to do so will be void; provided
that Customer shall have the right to assign this Agreement without the
permission of PurchasePro to an entity that acquires all or substantially all of
the assets of Customer or to any subsidiary or affiliate or successor in a
merger or acquisition of Customer provided that the assignee agrees in writing
to be bound by the terms of the Agreement prior to such assignment. All the
terms and provisions of the Agreement shall be binding upon and inure to the
benefit of the parties and their respective heirs, successors, assigns and legal
representatives.
4. OWNERSHIP OF INTELLECTUAL PROPERTY. Customer understands and agrees that
PurchasePro owns and retains all right, title and interest in any services,
software products, intellectual property rights, source code, documentation, any
future modifications and all related materials that may be provided by
PurchasePro under the terms of the Agreement.
5. OWNERSHIP AND USE OF DATA. For all Customer Information, Supplied Data,
Transaction Data and Sanitized Transaction Data:
1) Customer shall own all Customer Information and Supplied Data.
2) Customer shall, with respect to any particular transaction, jointly own
along with the other party(ies) to such transaction, without any rights
of attribution or accounting, the Transaction Data for such
transaction; provided that such ownership shall be subject to the
ownership and use rights of PurchasePro set forth in these Terms and
Conditions.
3) PurchasePro and Customer jointly own, without any obligation of
accounting or attribution to each other, and may freely use or disclose
as they individually determine, Sanitized Transaction Data.
4) Customer hereby acknowledges and agrees that, in addition to all other
rights of PurchasePro hereunder, PurchasePro will retain possession of,
and make use of, copies of the Customer Information, Supplied Data,
Transaction Data and Sanitized Transaction Data in connection with the
establishment and operation (including, without limitation, the
facilitation of transactions within) of the Global Marketplace and any
Private Marketplace in which Customer has been placed as a preferred
supplier and otherwise meeting PurchasePro's
obligations/responsibilities and exercising its rights under the
Agreement. PurchasePro's use of the Customer Information, Supplied
Data, Transaction Data and Sanitized Transaction Data may include the
storage, display, parsing, modification, reproduction, copying,
transmission, translation, performance, publication, broadcast,
preparation of derivative works or dissemination thereof.
Except as otherwise set forth in the Agreement, PurchasePro shall maintain the
confidentiality of, and shall not disclose, disseminate or provide to any other
person, firm, organization or third party (except for employees, agents,
contractors, advisors or representatives of PurchasePro who have a reasonable
need to know), Customer Information, Supplied Data and Transaction Data;
provided, however, that the foregoing shall not apply to User Information,
Supplied Data or Transaction Data that: (i) is or becomes publicly known without
violation by PurchasePro of the Agreement; (ii) is already known to PurchasePro
without restrictions at the time of its disclosure to PurchasePro; (iii) after
its disclosure to PurchasePro, is made known to PurchasePro without restrictions
by a third party having the right to do so; (iv) is legally required to be
disclosed by PurchasePro pursuant to a judicial order from a court of competent
jurisdiction; or (v) is "Public Information" (i.e., information regarding the
Customer, its products and services which is public in the normal course of
Customer's business and operations and/or which is necessarily and appropriately
public (and accessible by third parties within a Marketplace) to enable the
working of transactions within a Marketplace).
6. RESOLUTION OF DISPUTES. In the event of a dispute between the parties arising
under the Agreement, the parties shall submit to binding arbitration in Las
Vegas, Nevada before a single arbitrator knowledgeable with respect to the
subject matter of the Agreement under the Commercial Arbitration Rules of the
American Arbitration Association, except that temporary restraining orders or
preliminary injunctions, or their equivalent, may be obtained from any court of
competent jurisdiction. The decision of the arbitrator shall be final and
binding with respect to the dispute subject to the arbitration and shall be
enforceable in any court of competent jurisdiction. If any arbitration or
litigation is commenced between or among parties to the Agreement or their
personal representatives concerning any provisions of the Agreement, or the
rights and duties of any person in relation thereto, the court or arbitrator, as
the case may be, may award to the party or parties prevailing in such
arbitration or litigation, in addition to such other relief as may be granted, a
reasonable sum for their attorneys' fees.
7. FORCE MAJEURE. Each party to the Agreement shall be excused from any delay or
failure in its performance thereunder, other than for payment of money, caused
by any disruption or slow speed of the Internet, break-downs of security or
introduction of computer viruses (and the like) by third parties, any labor
dispute, government requirement, act of God, or any other cause beyond its
control. Such party shall use best efforts to cure any such failure or delay in
performance arising from a force majeure condition, and shall timely advise the
other party of such efforts. If such delay continues for more than ten (10)
days, the party injured by the inability of the other to perform may upon ten
(10) days prior written notice terminate the Agreement.
8. LIMITATIONS ON LIABILITY. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY
FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY
KIND OR AMOUNT, REGARDLESS OF LEGAL THEORY (INCLUDING TORT, BREACH OF CONTRACT
OR STRICT LIABILITY)
1
Preferred Supplier Agreement
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ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT. THE MAXIMUM LIABILITY OF
PURCHASEPRO TO CUSTOMER HEREUNDER SHALL NOT EXCEED, IN THE AGGREGATE AND IN ANY
CIRCUMSTANCES, THE TOTAL CONSIDERATION PAID TO PURCHASEPRO BY CUSTOMER PURSUANT
TO THE AGREEMENT.
9. DEFINITIONS. To the extent any capitalized term is used but not defined in
the Agreement, such term shall have the meaning ascribed to it below:
(a) CUSTOMER INFORMATION. Information or data (including, without
limitation, registration, enrollment and profile data) contained in a
Marketplace provided by Customer about Customer that specifically
identifies Customer.
(b) GLOBAL MARKETPLACE. The Marketplace for which PurchasePro is the
designated owner.
(c) MARKETPLACE. An electronic commerce environment generated by
PurchasePro's proprietary Marketplace software product in which
multiple prospective buyers/suppliers of products and/or services who
have been registered into such environment have access to other
buyers/suppliers for the purpose of transacting purchases and/or sales
of products and/or services within such environment.
(d) MARKETPLACE SERVICES. The services provided by PurchasePro for Customer
as set forth under the terms of the Agreement.
(e) MEMBER. An entity or person to which PurchasePro has issued and/or
confirmed a unique user identification and password for a particular
Marketplace, which user identification and password are unique to such
entity or person and enable such entity or person to access and use
such Marketplace.
(f) NET SUBSCRIPTION FEE. A Subscription Fee MINUS any and all sales or
other commissions and royalties, sales or use taxes (and similar taxes,
such as VAT) and credits that are payable with respect to such
Subscription Fee.
(g) PRIVATE MARKETPLACE. A Marketplace established for an entity other than
PurchasePro pursuant to a license of PurchasePro's proprietary
Marketplace software product to such entity. Such entity is the
designated owner of such Marketplace.
(h) SANITIZED TRANSACTION DATA. Transaction Data exclusive of, or after
removal of information that specifically identified Customer or any
Member, and which exists: (i) in an anonymous form as part of an
aggregation of multiple transactions conducted in whole or part over or
through use of the Marketplace; (ii) in a "blinded" fashion, exclusive
of, or after removal of, information which specifically identifies
Customer or any Member; and (iii) in the form of statistical data,
usage information, reports and analysis based upon Sanitized
Transaction Data (as defined in the foregoing items (i) and (ii)).
(i) SUBSCRIPTION FEE. A periodic (e.g., monthly) fee charged to Members for
access to the Global Marketplace.
(j) SUPPLIED DATA. Catalog or product information and pricing data provided
by Customer for Customer and contained in a Marketplace.
(k) TRANSACTION DATA. Information and data characterizing, describing,
relating to or comprising transactions (e.g., the sale and purchase of
goods and services) between Customer and a Member which are conducted
in whole or part over or through use of any Marketplace. Transaction
Data also includes, for any transaction to which Customer is a party,
information or data relating to the parties of such transaction other
than Customer which is communicated or furnished by such parties to
Customer or otherwise obtained by Customer in the course of such
transaction.
10. PUBLIC STATEMENTS. Neither party will issue any press release, excluding
statements that are mandated by state and federal securities laws, regarding the
terms and conditions of the Agreement and/or the details of the relationship
between the parties contemplated hereby without the prior written approval of
the other party (which will not be unreasonably conditioned, withheld, or
delayed).
11. GENERAL. The relationship of the parties under the Agreement is that of
independent contractors, and neither party's personnel shall be considered
employees or agents of the other party to the Agreement. If any term, clause or
provision of the Agreement is at any time judged to be invalid for any reason,
such invalidity shall not affect the validity or operation of any other term,
clause or provision and such invalid term, clause or provision shall be
considered to have been deleted from the Agreement. No party to the Agreement
shall be deemed to have waived any rights under, or as the result of any default
under or breach of, the Agreement unless the waiver is set forth in a writing
signed by the party. Any waiver of any default or breach of the Agreement shall
not be construed to constitute a waiver of any other default or breach whether
similar or not. The Agreement shall be governed by and construed in accordance
with the laws of the State of New York (without regard to conflicts of laws
principles). The Agreement may be amended or modified only by a writing signed
by an authorized representative of each party.
12. NOTICES. All notices and other communications under the Agreement shall be
in writing and shall be deemed to have been duly given as of the date of
delivery shown on the receipt if mailed at a post office in the United States,
postage prepaid, return receipt requested, or via nationally recognized
overnight courier, to the addresses set forth below the signatures of each party
in the Agreement. Either party may from time to time by written notice to the
other designate another address, which shall thereupon become its effective
address for the purposes of the Agreement.
13. U.S. DOLLARS. All payments hereunder by either party shall be made in U.S.
dollars.
16. MEMBERSHIP AND EXPORT RESTRICTIONS. Customer shall comply with all
applicable laws, rules and regulations, including without limitation the United
States Foreign Corrupt Practices Act and all applicable United States export
control laws and regulations, in connection with its performance of this
Agreement and the establishment and operation of Customer's Marketplace. Without
limiting the preceding sentence, Customer shall not permit any residents of any
countries to which the export or import of commodities and technical data is
prohibited by the Export Administration Regulations of the U. S. Department of
Commerce, the international Traffic In Arms Regulations of the U. S. Department
of State or the Enhanced Proliferation Control Initiative (collectively, "U.S.
Export Controls") to become members or to conduct any transactions on Customer's
Marketplace, and customer shall not export or re-export or permit the export or
re-export of the Marketplace Software Product in violation of any U.S. Export
Control.
