Exhibit 10.44
Global Sports InteractiveFinancial Printing Group Confidential Treatment has
been requested with respect to portions of the agreement indicated with an
asterisk [*]. A complete copy of this agreement, including the redacted terms,
has been separately filed with the Securities and Exchange Commission.
GLOBAL SPORTS INTERACTIVE, INC.
______________________
STRATEGIC ALLIANCE AGREEMENT
AMONG
GLOBAL SPORTS INTERACTIVE, INC.
AND
XXXXXXXXX.XXX LLC
TABLE OF CONTENTS
Section Page
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1 Definitions 1
2 Development and Operation of the Web Site 2
3 Customer Service 3
4 Licensed Materials 3
5 Supply of Merchandise and Warehousing 3
6 Order Processing 4
7 Fulfillment of Accepted Orders and Returns 5
8 Form of Communication 6
9 Payment 6
10 No Merchandise Warranty 7
11 GSI Representations and Warranties 7
12 GSI Indemnification 7
13 Blue Representations and Warranties 8
14 Blue Indemnification 8
15 Customer Data 8
16 Confidentiality 8
17 Limitation of Liability 10
18 Term and Termination 11
19 Force Majeure 12
20 Miscellaneous Provisions 12
Schedules
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Schedule A: Designated Web Sites
Schedule B: Fulfillment Requirements Structure
2
STRATEGIC ALLIANCE AGREEMENT
This Strategic Alliance Agreement is made by and among Global Sports
Interactive, Inc., ("GSI") a Pennsylvania corporation with its principal place
of business located at 0000 Xxxxx Xxxxxx, Xxxx xx Xxxxxxx, Xxxxxxxxxxxx, 00000,
Xxxxxxxxx.Xxx LLC ("Blue") a Delaware limited liability company with its
principal place of business located at 000 Xxxx, Xxxxx 000 Xxx Xxxxxxxxx, XX
00000, this 28th day of February, 2000 (the "Effective Date").
RECITALS
1 GSI is in the business of, inter alia, providing retailers with selection
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and acquisition of merchandise, warehousing and fulfillment functions in
connection with such retailers e-commerce business.
2 Blue is in the business of owning and operating an e-commerce enabled Web
site offering a comprehensive selection of goods, including Sporting Goods,
through its on-line stores.
3 Blue desires to outsource the selection and acquisition of merchandise,
warehousing and fulfillment functions for Sporting Goods in connection with
its on-line stores.
4 GSI desires to provide Blue selection and acquisition of merchandise,
warehousing and fulfillment services for sales of Sporting Goods through
the Blue on-line stores for shipment to customers within the United States.
5 GSI and Blue desire to enter into this Agreement in order to set forth
their respective rights and obligations with respect to GSI's selection and
acquisition of merchandise, warehousing and fulfillment functions for
Sporting Goods in connection with Blue's on-line stores.
AGREEMENT
GSI and Blue (each a "Party" and collectively, the "Parties"), in
consideration of the mutual promises contained herein, and intending to be
legally bound, agree as follows.
1 DEFINITIONS. Capitalized terms have the following meanings in this
Agreement.
1.1 Agreement means this Strategic Alliance Agreement.
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1.2 Blue Light Specials means Merchandise offered for sale on the Web
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Site at a price reduced by at least [ * ] percent from (i) the
manufacturers suggested retail price if such price is available, or
(ii) if there is no manufacturers suggested price, the Retail Price;
or (iii) such other mutually agreed upon price.
1.3 Customer means a person who places an Order.
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1.4 Designated Web sites means the Web sites identified on Schedule A
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attached to this
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Agreement as such schedule may be amended by GSI.
1.5 GSI Content means illustrations, graphics, audio, video, text,
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photographs, films, slides, prints, negatives, recordings, drawings,
sketches, artwork, digital images, and other renderings and
information, depicting, describing, identifying, or otherwise
related to Merchandise that (a) is reasonably available to GSI; (b)
GSI is not prohibited from licensing as required by this Agreement;
and (c) is generally available on Web sites operated by GSI.
1.6 GSI Product Database means the database maintained by GSI, in
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computer-readable format, of information regarding Merchandise which
information includes, without limitation, SKU numbers, Merchandise
availability, product availability, and pricing.
1.7 Launch Date means the date on which Sporting Goods on the Blue Web
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Site are first available to the public and which are supplied by GSI
under this Agreement.
1.8 Licensed Materials means GSI Content and the GSI Product Database as
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provided to Blue and as may be modified, revised, or updated in
accordance with this Agreement.
1.9 Markdowns means Merchandise offered for sale on the Designated Web
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sites or to Blue under this Agreement at a price reduced from its
original price and available only in limited quantities.
1.10 Merchandise means Sporting Goods merchandise generally offered for
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sale through the Designated Web sites and other merchandise that GSI
may offer and Blue may, in its sole discretion, accept for sale
under this Agreement. Merchandise includes without limitation, Blue
Light Specials. Merchandise does not include (a) merchandise
acquired by GSI exclusively for, or manufactured exclusively for, or
sold under a trademark of, the retailer related to a Designated Web
site; (b) except for Blue Light Specials and Markdowns, merchandise
offered for sale through such Designated Web sites at a price
reduced from its original price and available only in limited
quantities, including without limitation end-of-season or excess
merchandise; or (c) merchandise that GSI is prohibited from
providing to Blue by the related licensee or licensor of licensed
merchandise or the related manufacturer.
1.11 Order means an order for Merchandise through the Web Site, through
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800 numbers or by any other electronic medium.
1.12 Retail Price means the lowest initial selling price that an item is
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originally made available to the public on the Designated Web sites.
1.13 SKU means a stock keeping unit of merchandise.
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1.14 Sporting Goods means sports equipment, recreational equipment,
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sporting apparel, and athletic footwear.
1.15 Web Site means the e-commerce enabled Web site operated by or on
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behalf of Blue as its online retail store for Sporting Goods.
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1.16 Web means the Internet client-server hypertext distributed
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information retrieval system known as the World Wide Web.
2 DEVELOPMENT AND OPERATION OF THE WEB SITE. Blue shall develop the Sporting
Goods portion of the Web Site and beginning on the Launch Date and
throughout the term of this Agreement, shall operate and maintain the Web
Site. Except for the services to be provided by GSI hereunder, Blue shall
be solely responsible for all operating functions of the Web Site,
including, but not limited to, Order processing, second-level customer
service (except as provided in Section 3), development, maintenance and
hosting of the Web Site. Subject to Section 5 hereof, Blue shall not offer
Sporting Goods offered for sale by GSI under this Agreement for sale
through any Web site, any kiosks in any Kmart stores or otherwise except
through the Web Site unless such Sporting Goods is acquired from GSI. At
Blue's discretion, GSI will have the right to operate kiosks in the
Sporting Goods departments of Kmart stores.
3 CUSTOMER SERVICE. GSI shall provide to Blue, Merchandise inventory levels
and availability, Order and shipping confirmations, Order shipping tracking
information as made available to GSI by the common carrier, and such other
Merchandise and Order information that is commercially reasonably available
to GSI and reasonably necessary for Blue's customer service, in compliance
with the standards set forth in Blue's Vendor Packet, a copy of which is
attached hereto as Schedule B. GSI shall provide such customer service to
Blue as shall be mutually agreed upon by the parties. Additionally, GSI
shall use commercially reasonable efforts to satisfy the service level
standards with regard to fulfillment and customer services, as set forth on
Schedule B.
4 LICENSED MATERIALS
4.1 License to GSI Content and the GSI Product Database. GSI shall
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provide to Blue the Licensed Materials subject to, and grants to
Blue, a personal, nontransferable (except in accordance with this
Agreement), nonexclusive, limited license for the term of this
Agreement to use, reproduce, display, transmit, and publicly perform
the Licensed Materials solely in connection with the sale of
Merchandise through the Web Site. Blue shall not (a) copy (except as
reasonably necessary to use the Licensed Materials in accordance
with this Agreement); (b) modify, adapt, translate or create
derivative works based upon the Licensed Materials; (c) remove,
erase, or tamper with any copyright or other proprietary notice
printed or stamped on, affixed to, or encoded or recorded in the
Licensed Materials, or fail to preserve all copyright and other
proprietary notices in any copy of any of the Licensed Materials
made by Blue; or (d) sell, market, license, sublicense, distribute,
or otherwise grant to any person any right to use the Licensed
Materials without the prior consent of GSI. Any and all rights not
explicitly granted under this Agreement are expressly reserved by
and to GSI.
4.2 Updating the GSI Product Database. GSI shall update the information
---------------------------------
in the GSI Product Database no less frequently than once per day.
Such updates shall include the addition of SKU numbers and other
information for added SKUs, the removal of SKU numbers and other
information for unavailable SKUs, revised SKU availability,
information, pricing, shipping, and special handling fees, and
inventory availability provided throughout each day based upon
Blue's reasonable requirements.
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5 PRICING, SUPPLY OF MERCHANDISE AND WAREHOUSING
5.1 Exclusive Source of Sporting Goods. Subject to the exceptions in
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this Section 5.1, GSI shall be the exclusive source of Sporting
Goods for sale through the Web Site. GSI will be responsible for
purchasing, directly from manufactures, all Sporting Goods to be
sold on the Web Site. GSI will use commercially reasonable efforts
to (i) maintain the level of products currently available on the
Designated Web sites, and (ii) ensure that the availability of
Sporting Goods on the Web Site exceeds the current level of Sporting
Goods available at a typical Kmart store.
5.1.1 Unavailable Brand Names. Blue may obtain from third parties
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for sale through the Web Site brand name Sporting Goods if
such brand name is not available through GSI provided that,
if such Sporting Goods subsequently become available through
GSI, Blue shall obtain such Sporting Goods from GSI under
this Agreement after the termination of such replacement
third-party vendor contracts, Blue agrees that it shall
terminate, without causing a breach, such replacement third-
party vendor contract as soon as possible after such Sporting
Goods become available through GSI, but, in no event, shall
Blue be required to terminate any such contract prior to180
days after such Sporting Goods become available through GSI.
5.1.2 Unavailable Products. Blue may obtain from third parties for
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sale through the Web Site specific products of brand name
Sporting Goods if Blue determines that such products are
regularly sold in Kmart stores and are not available through
GSI; provided that, if such products subsequently become
available through GSI Blue shall obtain such products from
GSI under this Agreement after the termination of such
replacement third-party vendor contracts. Blue agrees that it
shall terminate, without causing a breach, such replacement
third-party vendor contract as soon as possible after such
Sporting Goods become available through GSI, but, in no
event, shall Blue be required to terminate any such contract
prior to180 days after such Sporting Goods become available
through GSI.
5.2 Blue Light Specials. GSI and Blue agree that during each twelve
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(12) month period of this Agreement, GSI and Blue will mutually
agree to provide no less than [ * ] Blue Light Specials for sale on
the Web Site. All procurement and fulfillment functions for products
designated as Blue Light Specials which GSI and Blue have agreed
upon shall be performed, at Blue's option, either by Blue or GSI. In
the event that Blue and GSI do not agree on any particular Blue
Light Special, Blue shall have the right to provide such Blue Light
Special for sale on the Web Site; provided, however, GSI shall not
have any special or extra obligations (beyond its regular
contractual duties hereunder) with respect to such Blue Light
Special and Blue shall pay GSI such amount for such Blue Light
Special as set forth in Section 9.1 hereof. Nothing herein restricts
or otherwise limits Blue's rights and ability to provide Blue Light
Specials involving Sporting Goods in conjunction with Kmart
Corporation without GSI's involvement.
5.3 Inventory and Warehousing. GSI will arrange for all Merchandise
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that it procures and makes available to Blue to be delivered,
received and stored by GSI. GSI's inventory of Merchandise to be
provided for sale on Blue's Web Site shall be maintained at
facilities owned, controlled, or under contract to GSI.
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5.4 Pricing. Blue shall determine the pricing and product selection of
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Merchandise on the Web Site.
6 ORDER PROCESSING
6.1 Blue Submission of Orders. Blue shall transmit Orders to GSI. Each
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Order shall include
6.1.1 the Customer's name,
6.1.2 the recipient's name if different from the Customer's name,
6.1.3 the complete shipping address which address shall be a street
address and shall not be a post office box or similar
address,
6.1.4 the Customer's telephone number,
6.1.5 the Customer's email address,
6.1.6 all shipping instructions, and
6.1.7 the SKU numbers, product descriptions, and prices charged by
Blue to the Customer for each SKU.
6.2 GSI's Acceptance or Rejection of Orders. GSI shall accept Orders
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for shipment to addresses worldwide that include the information
required by Section 6.1 of this Agreement and for which the related
Merchandise is available; provided that such Orders to be shipped
outside the United States are shipped on Blue's shipping account.
GSI shall reject all other Orders.
6.3 GSI Confirmation. Within 4 hours of GSI's receipt of an Order, GSI
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shall confirm to Blue GSI's receipt of such Orders which
confirmation shall state whether the Order was accepted, rejected
due to incomplete information, or rejected due to unavailable
Merchandise.
7 FULFILLMENT OF ACCEPTED ORDERS AND RETURNS
7.1 Assembly and Packaging. GSI shall assemble and package for shipping
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all accepted Orders in accordance with Schedule B attached to this
Agreement. Orders will be packaged under the Blue name and with no
reference to GSI and, whenever practicable, GSI will package and
ship SKUs in a single Order together. Blue shall provide initial
packing slip schema to GSI, with GSI to bear subsequent reproduction
costs consistent with GSI's current proportional costs with regard
to the Designated Web sites as such amounts are determined by GSI
and demonstrated to Blue.
7.2 Risk of Loss. As between the Parties, title and risk of loss shall
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pass to Blue upon GSI's delivery of the Merchandise to the common
carrier at the point of shipment.
7.3 Order Priority. All accepted orders, including without limitation,
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accepted Orders, shall be processed by GSI in the order that they
were received by GSI.
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7.4 Shipping Methods. GSI shall coordinate the shipping of all accepted
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Orders with United Parcel Service through Blue's account. Blue shall
provide for shipping by United Parcel Service standard, United
Parcel Service second day, or United Parcel Service next day service
or by common carrier. GSI shall comply with the special shipping
instructions included with an Order unless the Merchandise does not
meet the shipper's requirements for the requested methods.
7.5 Returns. For all Merchandise shipped by GSI on behalf of Blue, GSI
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shall provide instructions on how to return Merchandise directly to
the fulfillment center or other location designated by Blue. GSI
shall accept the return of Merchandise sold through the Web Site
that is returned by the Customer for any reason. GSI shall accept
the return of Merchandise sold through the Web Site that is returned
to GSI unused and in a condition suitable for resale as new goods.
GSI shall be obligated to accept the return of any Merchandise under
this Section 7.5 only if such Merchandise (a) is returned to GSI
within 30 days of GSI's issuance of its return authorization and (b)
which return authorization was issued by GSI within 30 days of GSI's
shipment of the Merchandise. Blue will make commercially reasonable
efforts to ensure that, to the extent any merchandise sold by Blue
is returnable at Kmart stores, the Merchandise sold hereunder will
also be returnable at Kmart stores, whether or not Kmart carries
such Merchandise in its stores. GSI shall credit Blue for [ * ] of
the amount Blue paid to GSI for such Merchandise returned.
7.6 Reports. GSI shall transmit to Blue the reports identified on and
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in accordance with Schedule B.
8 FORM OF COMMUNICATION. All Orders transmitted by Blue and all
confirmations of Orders and shipments and reports transmitted by GSI
pursuant to this Agreement shall be provided in a form reasonably
acceptable to the recipient and shall be communicated electronically.
9 PAYMENT
9.1 Price for Merchandise. Blue shall pay to GSI, for each unit of
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Merchandise sold on the Web Site, an amount equal to the [ * ].
9.2 Markdowns. Blue shall pay to GSI, for Markdowns sold on the Web
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Site, an amount equal to [ * ] of the marked down selling price
provided by GSI.
9.3 Other Charges. In addition to amounts due GSI for Merchandise, Blue
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Light Specials and Markdowns, Blue shall pay to GSI its actual costs
in connection with shipping Orders, its actual costs for post-
delivery assembly of Merchandise or other similar post-delivery
services, any and all other amounts due GSI under this Agreement,
and for taxes, if any, assessed on Orders paid by GSI unless such
taxes are paid by Blue.
9.4 Invoices. GSI shall submit invoices to Blue for amounts due under
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this Agreement on the last day of each month.
9.5 Payment. Blue shall pay all amounts due under this Agreement within
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15 days of the invoice date. All payments shall be by wire transfer
to such account as GSI may designate.
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9.6 Late Payment. Interest at the rate of one and one-half percent
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(1.5%) per month (or, if lower, the maximum rate permitted by
applicable law) shall accrue from the date due to the date paid on
any amount not paid by when such amount was due.
9.7 Advertising Revenue.
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9.7.1 Nothing herein limits Blue's right and ability to sell banner
and other types of advertisements (the "Advertisements") on
the Sporting Goods section of the Web Site at its own cost
and expense.
9.7.2 Blue shall pay to GSI [ * ] of all "Net Revenue Received"
from the sale of any Advertisements to [ * ]. For purpose of
this Agreement, Net Revenue Received shall equal the cash
consideration actually received from an advertiser, less any
selling expenses incurred by Blue in the sale of such
Advertisement; provided, however, such selling expenses
cannot exceed [ * ] of the aggregate amounts received for
such Advertising. All amounts due from Blue to GSI hereunder
shall be due and payable monthly by the 30th day after the
end of the calendar month in which Net Revenue Received was
received by or on behalf of Blue.
10 NO MERCHANDISE WARRANTY. Blue acknowledges that GSI is not the
manufacturer of the Merchandise. GSI agrees to pass on to Blue any and all
warranties made to GSI by manufacturers and vendors of the Merchandise, if
any such warranties are made and if such warranties can be passed on to
Blue. EXCEPT FOR WARRANTIES, IF ANY, FROM MANUFACTURERS OR VENDORS OF THE
MERCHANDISE, GSI IS FURNISHING THE MERCHANDISE TO CUSTOMERS "AS IS,"
WITHOUT ANY, AND DISCLAIMS ALL, WARRANTIES OF ANY KIND, EITHER EXPRESS OR
IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF TITLE,
MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTY
AGAINST INFRINGEMENT OF PATENTS, COPYRIGHTS, TRADE SECRETS, OR OTHER
INTELLECTUAL PROPERTY RIGHTS.
11 GSI REPRESENTATIONS AND WARRANTIES. GSI represents and warrants that
during the term of this Agreement, GSI Content as delivered to Blue shall
not (a) infringe any intellectual property rights of any person or any
rights of publicity, personality, or privacy of any person; (b) violate any
law, statute, ordinance, or regulation (including without limitation, the
laws and regulations governing export control, unfair competition, anti-
discrimination, consumer protection, or false advertising); (c) be
defamatory, libelous or trade libelous, unlawfully threatening, or
unlawfully harassing; (d) be obscene, pornographic, or indecent; or (e)
violate any community or Internet standard.
12 GSI INDEMNIFICATION. GSI shall defend Blue and its affiliates, and the
directors, officers, employees, and agents of Blue and its affiliates
("Indemnitees"), at GSI's sole cost and expense, against any and all third-
party claims, actions, suits, or other proceedings against Indemnitees (a)
arising from or related to any injuries, including without limitation,
death, to persons or any damage to property occurring as a result of the
negligence or willful misconduct of GSI (or its employees) or GSI's breach
of this Agreement or (b) arising from or related to any breach of any of
GSI's representations or warranties in this Agreement, or (c) based on the
GSI Content, and GSI shall indemnify and hold Indemnitees harmless from and
against any and all judgments, losses, liabilities, damages, costs, and
expenses (including without limitation, reasonable attorney's fees and
attorney's disbursements) arising out of or incurred in connection with
such
Page 9 of 17
claims, actions, suits, or other proceedings. GSI shall have the right to
control the defense and settlement of any claims or actions that GSI is
obligated to defend, but Blue shall have the right to participate in such
claims or actions at its own cost and expense.
13 BLUE REPRESENTATIONS AND WARRANTIES. Blue represents and warrants that
during the term of this Agreement, it shall have and abide by the terms of
its Web site privacy policy, which policy shall be consistent with the then
current generally accepted privacy policies of retail e-commerce Web sites.
14 BLUE INDEMNIFICATION. Blue shall defend GSI and its affiliates, and the
directors, officers, employees, and agents of GSI and its affiliates
("Indemnitees"), at Blue's sole cost and expense, against any and all
third-party claims, actions, suits, or other proceedings against
Indemnitees (a) alleging the failure to pay or underpayment of any sales or
similar tax arising from the sale of Merchandise through the Web Site; (b)
arising from or related to any injuries, including without limitation,
death, to persons or any damage to property occurring as a result of the
negligence or willful misconduct of Blue or Blue's employees; (c) alleging
claims based on the Web Site (exclusive of any GSI Content); (d) by a
Customer alleging breach of warranty; or (e) arising from or related to any
breach of any of Blue's representations or warranties in this Agreement,
and shall indemnify and hold Indemnitees harmless from and against any and
all judgments, losses, liabilities, damages, costs, and expenses (including
without limitation, reasonable attorney's fees and attorney's
disbursements) arising out of or incurred in connection with such claims,
actions, suits, or other proceedings. Blue shall have the right to control
the defense and settlement of any claims or actions that Blue is obligated
to defend, but GSI shall have the right to participate in such claims or
actions at its own cost and expense.
15 CUSTOMER DATA. All "User Data" and related information collected from
Customers' use of the Web Site and Orders shall be [ * ]. For purposes of
this Agreement, "User Data" shall mean all names, mailing addresses,
shipping addresses, telephone numbers, e-mail addresses, purchasing data
and any other identifying information submitted or disclosed by Customers.
16 CONFIDENTIALITY
16.1 Confidential Information. The term "Confidential Information" means
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any and all technical and non-technical information including,
without limitation, patent, copyright, trade secret, and proprietary
information, techniques, sketches, drawings, models, inventions,
know-how, processes, apparatus, equipment, algorithms, software
programs, software source documents, and formulae related to the
current, future, and proposed products and services of either Party,
and includes without limitation, their respective information
concerning research, development, design details and specifications,
engineering, financial information, procurement requirements,
purchasing, manufacturing, key personnel, suppliers, customers,
prospective customers, policies or operational methods,
Page 10 of 17
plans for future developments, business forecasts, sales and
merchandising, and marketing plans and information, in whatever form
disclosed. Confidential Information does not include items that were
16.1.1 possessed by the receiving Party prior to receipt or access
pursuant to this Agreement other than through prior
disclosure by the disclosing Party as evidenced by the
receiving Party's written records;
16.1.2 independently developed by the receiving Party without the
benefit of disclosure by the disclosing Party as evidenced by
the receiving Party's written records;
16.1.3 published or available to the general public other than
through a breach of this Agreement or breach by a third party
of its confidentiality obligations to the disclosing Party;
16.1.4 obtained by the receiving Party from a third party with a
valid right to disclose such Confidential Information,
provided that such third party is not under a confidentiality
obligation to the disclosing Party; or
A combination of features or disclosures shall not be deemed to fall
within the foregoing exclusions merely because individual features
are published or available to the general public or in the rightful
possession of the receiving Party unless the combination is
published or is available to the general public or in the rightful
possession of the receiving Party.
16.2 Obligation of Confidentiality. Each Party shall permanently hold,
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and cause their respective personnel to hold, Confidential
Information in strict confidence. The receiving Party may disclose
Confidential Information that is required to be disclosed by
governmental agencies, regulatory authorities, or pursuant to court
order only to the extent such disclosure is required by law and only
provided that the receiving Party provides reasonable prior notice
to the disclosing Party of the disclosure. Except as specifically
permitted by this Agreement, neither Party shall duplicate or use,
or permit the duplication or use of, Confidential Information or
disclose or permit the disclosure of Confidential Information to any
person or entity. Each Party shall limit the duplication and use of
Confidential Information to the performance of its obligations under
this Agreement and shall limit access to and possession of
Confidential Information only to those of its personnel whose
responsibilities under this Agreement reasonably require such access
or possession. Each Party shall advise all such persons before they
receive access to or possession of Confidential Information of the
confidential nature of the Confidential Information and require them
to abide by the terms of this Agreement. Any duplication, use,
disclosure, or other act or omission by any person that obtains
access to or possession of Confidential Information through the
receiving Party that would be a breach of this Agreement if
committed by the receiving Party is deemed a breach of this
Agreement by the receiving Party for which the receiving Party shall
be responsible. If disclosure of a Party's Confidential Information
is sought pursuant to judicial process, the Party receiving such
request shall promptly notify the Party whose Confidential
Information is so requested and shall cooperate with such Party to
maintain the confidentiality of such Confidential Information (e.g.,
through opposition proceedings or a protective order).
Page 11 of 17
16.3 Ownership of Confidential Information and Other Materials. All
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Confidential Information, and any Derivatives (as defined below)
thereof whether the Derivative was created by the disclosing or
receiving Party, shall remain the property of the disclosing Party
and except as specifically provided by this Agreement, no license or
other rights to such Confidential Information or Derivatives is
granted or implied by this Agreement. For purposes of this
Agreement, "Derivatives" shall mean (a) for copyrightable or
copyrighted material, any translation, abridgement, revision or
other form in which an existing work may be recast, transformed or
adapted; (b) for patentable or patented material, any improvement
thereon; and (c) for material that is or may be subject to
protection as a trade secret, any new material derived from such
material, including new material which may be protected by
copyright, patent, or trade secret or other proprietary rights.
16.4 Return of Confidential Information. Each Party shall deliver, or at
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the disclosing Party's option destroy, all Confidential Information
and deliver, or at the disclosing Party's option destroy, all copies
to the disclosing Party upon the expiration or termination of this
Agreement or at the disclosing Party's request. Notwithstanding the
foregoing, with Blue's prior written consent, GSI may retain such
Confidential Information of Blue as may be reasonably necessary to
document its performance under this Agreement but such Confidential
Information shall remain subject to this Section 16.
16.5 Remedy. The Parties each acknowledge that the disclosing Party will
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be irreparably harmed if the receiving Party's obligations under
this Section 16 are not performed, and that the disclosing Party
would not have an adequate remedy at law in the event of a violation
by the receiving Party of such obligations. The receiving Party
agrees and consents that the disclosing Party shall be entitled, in
addition to all other rights and remedies to which the disclosing
Party may be entitled, to have a decree of specific performance or
an injunction issued requiring any such violation to be cured and
enjoining all persons involved from continuing the violation. The
existence of any claim or cause of action that the receiving Party
or any other person may have against the disclosing Party shall not
constitute a defense or bar the enforcement of this Section 16. The
receiving Party acknowledges that the restrictions in this Section
16 are reasonable and necessary to protect legitimate business
interests of the disclosing Party.
17 LIMITATION OF LIABILITY. Except for (i) the parties' indemnification
obligations pursuant to sections 12 and 14, (ii) [ * ], and (iii) any
liability for money owed by Blue to GSI for the purchase of Merchandise
hereunder, the total liability of either party under this Agreement shall
under no circumstances exceed the amounts actually paid by Blue to GSI
during the immediately preceding 12 months under this Agreement. Under no
circumstances shall either party be liable to the other or to any other
person for lost revenues, lost profits, loss of business, or any indirect,
incidental, special, punitive, or consequential damages of any nature,
regardless of legal theory and whether or not foreseeable, even if the
exclusive remedies provided by this agreement fail of their essential
purpose and even if either Party has been advised of the possibility or
probability of such damages. The remedies specifically provided by this
Agreement and the provisions of this Section 17 set forth the parties'
exclusive remedies and allocate between the parties the risks under this
Agreement, some of which may be unknown or indeterminable. Such
limitations were a material inducement for each party to enter into this
Agreement, and the Parties have relied upon such limitations in determining
whether to enter into this Agreement.
Page 12 of 17
18 TERM AND TERMINATION
18.1 Term. The term of this Agreement shall commence on the Effective
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Date and continue until 11:59 p.m. Philadelphia time on the [ * ]
anniversary date of the Launch Date unless earlier terminated in
accordance with Section 18.2 or 18.3 below; provided, however, that
if at least 30 days, but not more than 60 days, prior to the [ * ]
anniversary date of the Launch Date, [ * ].
18.2 Termination by Blue. Blue may terminate this Agreement immediately
-------------------
by giving notice of termination to GSI and without prejudice to any
other rights or remedies Blue may have, upon the occurrence of any
of the following events:
(1) GSI breaches any of its material obligations under this
Agreement and does not cure the breach within 30 days after
GSI's receipt of Blue's notice of the breach; or
(2) a voluntary petition is commenced by GSI under the
Bankruptcy Code, as amended, 11 U.S.C. ' 101 et seq; GSI has
an involuntary petition commenced against it under the
Bankruptcy Code and such petition is not dismissed within 60
days after filing; GSI becomes insolvent; or any substantial
part of GSI's property becomes subject to any levy, seizure,
assignment, application, or sale for or by any creditor or
governmental agency; or liquidates or otherwise discontinues
all or a significant part of its business operations.
18.3 Termination by GSI. GSI may terminate this Agreement immediately
------------------
by giving notice of termination to Blue and without prejudice to any
other rights or remedies GSI may have, upon the occurrence of any of
the following events:
(1) Blue breaches any of its material obligations under this
Agreement and does not cure the breach within 30 days after
Blue's receipt of GSI's notice of the breach; or
(2) a voluntary petition is commenced by Blue under the
Bankruptcy Code, as amended, 11 U.S.C. ' 101 et seq; Blue
has an involuntary petition commenced against it under the
Bankruptcy Code and such petition is not dismissed within 60
days after filing; Blue becomes insolvent; or any
substantial part of Blue's property becomes subject to any
levy, seizure, assignment, application, or sale for or by
any creditor or governmental agency; or liquidates or
otherwise discontinues all or a significant part of its
business operations.
18.4 Effect of Expiration or Termination. Upon the expiration or
-----------------------------------
termination of this Agreement, whether under this Section 18 or
otherwise, each Party shall return or destroy all Confidential
Information of the other Party pursuant to Section 16, Blue shall
discontinue all use of the Licensed Materials, and Blue shall
promptly return to GSI all copies of Licensed Materials in Blue's
possession. Blue shall remain liable for all payments due
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GSI, and GSI for all refund credits, with respect to the period
ending on the date of termination.
18.5 Survival. Sections 1, 10, 11, 12, 13, 14, 15, 16, 17, 18.4, 18.5,
--------
19, and 20 of this Agreement survive any expiration or termination
of this Agreement.
19 FORCE MAJEURE. Except for the obligation to pay money, neither Party shall
be liable to the other Party for non-performance of this Agreement in whole
or in part, if (a) the non-performance is caused by the other Party or
events or conditions beyond that Party's reasonable and actual control and
for which that Party is not responsible under this Agreement, (b) the Party
gives prompt notice under Section 20.1, and (c) the Party makes all
commercially reasonable efforts to perform.
20 MISCELLANEOUS PROVISIONS
20.1 Notice. All notices, consents, and other communications under or
------
regarding this Agreement shall be in writing and shall be deemed to
have been received on the earlier of the date of actual receipt, the
third business day after being mailed by certified mail, or the
first business day after being sent by a reputable overnight
delivery service. Any notice may be given by facsimile, provided
that a signed written original is sent by one of the foregoing
methods within 24 hours thereafter. Blue's address for notices is
Xxxxxxxxx.Xxx, Inc.
000 Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: CEO
Facsimile: [ * ]
with a copy to
Cooley Godward LLP
Five Xxxx Xxxx Xxxxxx
Xxxx Xxxx XX 00000
Attention: [ * ]
Facsimile: [ * ]
GSI's address for notices is
Global Sports Interactive, Inc.
0000 Xxxxx Xxxxxx
Xxxx xx Xxxxxxx, XX 00000
Attention: Chief Executive Officer
Facsimile: (000) 000-0000
with a copy to: Global Sports Interactive, Inc.
0000 Xxxxx Xxxxxx
Xxxx xx Xxxxxxx, XX 00000
Attention: General Counsel
Facsimile: (000) 000-0000
Either Party may change its address for notices by giving written
notice of the new
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address to the other Party in accordance with this Section 20.1.
20.2 Competitor Restrictions. GSI agrees that during the calendar year
------------------------
ending December 31, 2000, GSI shall not operate an e-commerce
Sporting Goods business for [ * ] any entity operating under the
same brand name as any of the foregoing, or any subsidiary or
affiliate of any of the foregoing.
20.3 Assignment. This Agreement may not be assigned by either Party
----------
without the prior written consent of the other Party, which consent
shall not be unreasonably withheld. Notwithstanding the foregoing,
(a) either Party may assign this Agreement upon notice to, and
without the consent of, the other Party to any person or entity that
acquires the assignor's business or substantially all of the
assignor's assets by merger, stock sale, or other means provided
that the assignee is capable of performing assignor's obligations
under this Agreement and (b) GSI may assign this agreement upon
notice to Blue to a subsidiary of GSI or to any subsidiary of Global
Sports, Inc., again provided that the assignee is capable of
performing assignor's obligations under this Agreement. Any
attempted assignment in violation of this Section 20.3 shall be
void.
20.4 No Third-Party Beneficiaries. The Parties do not intend, nor shall
----------------------------
any clause be interpreted, to create under this Agreement any
obligations or benefits to, or rights in, any third party from
either Blue or GSI.
20.5 Independent Contractor. GSI and Blue are each independent
----------------------
contractors and neither Party shall be, nor represent itself to be,
the franchiser, partner, broker, employee, servant, agent, or legal
representative of the other Party for any purpose whatsoever.
Neither Party is granted any right or authority to assume or create
any obligation or responsibility, express or implied, in behalf of,
or in the name of, the other Party, or to bind the other Party in
any matter or thing whatsoever. The Parties do not intend to form a
partnership or joint venture as a result of this Agreement.
20.6 Publicity. Neither Party shall issue any press release regarding
---------
this Agreement or otherwise disclose the existence or terms of this
Agreement without the prior written consent of the other Party
except to the extent such disclosure is required by law, including,
but not limited to, required disclosure to the Securities and
Exchange Commission, and only if the disclosing Party provides
reasonable prior notice to other Party of the disclosure. If GSI
determines that it is required to disclose the terms hereof to the
Securities and Exchange Commission, GSI agrees to seek confidential
treatment of any such disclosure of financial terms.
20.7 Cumulative Remedies. All remedies available to either Party for
-------------------
breach of this Agreement are cumulative and may be exercised
concurrently or separately, and the exercise of any one remedy shall
not be deemed an election of such remedy to the exclusion of other
remedies.
20.8 Waiver. The waiver or failure of either Party to exercise in any
------
respect any right provided hereunder shall not be deemed a waiver of
such right in the future or a waiver of any other rights established
under this Agreement.
20.9 Enforceability. This Agreement shall be enforceable notwithstanding
--------------
the existence of any
Page 15 of 17
claim or cause of action one Party may have against the other Party.
20.10 Severability. Should any term or provision of this Agreement be held
------------
to any extent unenforceable, invalid, or prohibited under law, then
such provision shall be deemed restated to reflect the original
intention of the Parties as nearly as possible in accordance with
applicable law and the remainder of this Agreement. The application
of such term or provision to persons, property, or circumstances
other than those as to which it is invalid, unenforceable, or
prohibited, shall not be affected thereby, and each term and
provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
20.21 Headings. Section headings are for reference only and shall not
--------
affect the interpretation of this Agreement.
20.32 Successors in Interest. This Agreement and all of the provisions in
----------------------
this Agreement shall be binding upon and inure to the benefit of the
successors in interest and assigns of the Parties, subject to the
provisions of Section 20.3 of this Agreement.
20.43 Applicable Law. This Agreement shall be governed in all respects by
--------------
the laws of the State of Delaware without giving effect to its rules
relating to conflict of laws. In any action between the parties
arising out of or relating to this Agreement, the prevailing party
shall be entitled to an award of its reasonable legal fees and
expenses in connection therewith.
20.54 Order of Precedence. Any and all ambiguities or inconsistencies
-------------------
between a Schedule and this document shall be resolved by giving
precedence to the Schedule over this document. Silence on any matter
in a Schedule will not negate the provision in this document as to
that matter.
20.65 Entire Agreement. This Agreement and the attached Schedules
----------------
constitute the complete and exclusive statement of the agreement
between the Parties with respect to the subject matter of this
Agreement, and this Agreement supersedes any and all prior oral or
written communications, proposals, representations, and agreements.
It may be amended only by mutual agreement expressed in writing and
signed by both Parties.
20.76 Counterparts. This Agreement may be executed in any number of
------------
separate counterparts each of which when executed by and delivered
to the other Party shall be an original as against the Party whose
signature appears thereon, but all such counterparts shall together
constitute one and the same instrument.
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The Parties accept this Agreement and have caused this Agreement to be
executed and do each hereby represent and warrant that its respective signatory
whose signature appears below has been and is on the date executed duly
authorized by all necessary and appropriate corporate action to execute this
Agreement on its behalf.
GLOBAL SPORTS INTERACTIVE, INC. XXXXXXXXX.XXX LLC
By: ________________________ By: ________________________
Name: Xxxxxxx X. Xxxxx Name: Xxxx X. Xxxxxxxxx
Title: Chief Executive Officer Title: Chief Executive Officer
Date: February 28, 2000 Date: February 28, 2000________________
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