EXHIBIT 10.16
ELECTRONIC COMMERCE REFERRAL AND
REVENUE SHARING AGREEMENT
This Electronic Commerce Referral And Revenue Sharing Agreement (the
"Agreement") is made as of this 24th Day of August, 1998 (the "Effective Date")
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by and between INTELISYS ELECTRONIC COMMERCE LLC ("Intelisys") and RoweCom,
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("RoweCom") (Intelisys and RoweCom each a "Party" and, collectively, the
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"Parties").
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WHEREAS, Intelisys is engaged in the business of providing software
(the "Intelisys Software") and services ("Intelisys Services") to entities
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("Intelisys Licensees") engaged in the business of buying and selling goods and
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services via the Internet;
WHEREAS, RoweCom is engaged in the business of providing business-to-
business electronic commerce services to businesses and not-for-profit
institutions interested in purchasing subscriptions, books and other knowledge
products and services of a professional nature (the "Knowledge Products") and,
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in connection therewith, RoweCom collaborates with such entities to enhance
existing intranet networks to enable such entities to purchase the Knowledge
Products via their intranets (the "RoweCom Services"); and
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NOW, THEREFORE, for and in consideration of the agreements of the
Parties set forth below, Intelisys and RoweCom agree as follows:
ARTICLE 1. OBLIGATIONS OF THE PARTIES
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1.01 Intelisys Referrals. Within 30 days after the Effective Date and from
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time to time during the term of this Agreement, Intelisys shall provide RoweCom
Literature to Qualified Intelisys Licensees. "Qualified Intelisys Licensee"
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means any Intelisys customer that, to the knowledge of Intelisys, has or may
have a need or desire to purchase Knowledge Products and could use RoweCom
Services in order to enhance their use of Intelisys Software to purchase such
Knowledge Products; provided that Intelisys customers that are already RoweCom
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customers at the time of the referral shall not be considered Qualified
Intelisys Licensees. "RoweCom Literature" means brochures, specifications, sales
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materials and form contracts provided by RoweCom.
1.02 RoweCom Referrals. Within 30 days after the Effective Date and from time
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to time during the term of this Agreement, RoweCom shall provide Intelisys
Literature to Qualified RoweCom Licensees. "Qualified RoweCom Licensee" means
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any RoweCom customer that, to the knowledge of RoweCom, could use Intelisys
Software or Intelisys Services in order to enhance their use of RoweCom
Services; provided that RoweCom customers that are already Intelisys customers
at the time of the referral shall not be considered Qualified RoweCom Licensees.
"Intelisys Literature" means brochures, specifications, sales materials and form
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contracts provided by Intelisys.
1.03 Implementation Plan. As soon as is practicable, but no later than ninety
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(90) days after the Effective Date:
(a) Intelisys agrees to (i) list RoweCom as a partner on its web site and, as it
deems appropriate, in its
advertising and promotional materials; (ii) provide, as part of the Intelisys
Software and Intelisys Services, a hyperlink to the web site or web sites
designated by RoweCom; (iii) advise Intelisys Licensees that RoweCom is the
preferred provider of Knowledge Products for the Intelisys Services and list
RoweCom as the default supplier for Knowledge Products in Intelisys Licensees'
directories; (iv) train its sales force regarding the features and benefits of
the Knowledge Products and the RoweCom Services, and represent the Knowledge
Products and the RoweCom Services to Intelisys' clients and prospects as
Intelisys deems appropriate; and (v) facilitate introductions and accompany
RoweCom sales people on sales calls to Intelisys customers as Intelisys deems
appropriate.
(b) RoweCom agrees to (i) list Intelisys as a partner on its web site and, as
RoweCom deems appropriate, in its advertising and promotional materials; and
(ii) provide a hyperlink on such web site to the web site or web sites
designated by Intelisys; and (iii) to train its sales force regarding the
features and benefits of the Intelisys Services, and represent the Intelisys
Services to RoweCom's clients and prospects as RoweCom deems appropriate; and
(iv) facilitate introductions and accompany Intelisys sales people on sales
calls to RoweCom customers as RoweCom deems appropriate.
Any purchases of Knowledge Products made by Qualified Intelisys Licensees
through RoweCom hyperlinks installed in Intelisys Software, Intelisys Services
or Intelisys' web site will qualify for revenue sharing, as described in
Section 2.01. Any Qualified RoweCom Licensee referral generated by the RoweCom
direct sales force will be eligible for revenue sharing as described in
Section 2.01 (a referral from the sales force must include the company name,
contact name and phone number).
1.04 Promotional and Advertising Materials. Each party shall submit to the
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other for its written approval all advertising and promotional copy prepared
by or on behalf of either party pursuant to Section 1.03 hereof, via overnight
delivery not less than ten (10) days prior to release for use or distribution.
Any submission in response to which the reviewing party shall have delivered
notice of disapproval to the submitting party within such ten (10) day period
shall be deemed disapproved, and the submitting party shall not release such
materials for use or distribution but shall be permitted to resubmit such
samples and/or advertising and promotional materials for approval as necessary
1.05 Service Agreements. RoweCom and Intelisys shall use their best efforts to
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commence negotiations with and enter into an agreement to provide their
respective Services to each of their respective Licensees that requests those
services.
1.06 Development Plan. Intelisys agrees to provide to RoweCom, a description
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of how the Intelisys system integrates with suppliers and a description of the
workflow, along with all documentation necessary for RoweCom to become compliant
with the Intelisys Services. As soon as practicable, but no later than ninety
(90) days after the Effective Date, the parties agree to develop a formula for
metering web site click-through traffic for the purposes of determining Revenue
Sharing Fees (as defined herein) and such formula shall be initialed by both
parties and attached hereto as Exhibit C and shall form part of this Agreement.
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1.07 Software License. Intelisys grants to RoweCom, at no extra charge and
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subject to the terms set forth in the Intelisys Software License Agreement
attached hereto as Exhibit A, a non-exclusive, royalty-free right and license to
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use the Intelisys tool kit software (the "Tool Kit Software"), for the purpose
of modifying the RoweCom Services as required to make such services compliant
with the
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Intelisys Services. RoweCom will be responsible for its own development costs in
implementing links to the Intelisys Services but may request assistance from
Intelisys if, in RoweCom's reasonable judgment, such assistance is required.
Intelisys shall not charge RoweCom for such assistance but shall be reimbursed
for out of pocket expenses incurred in delivering such assistance.
ARTICLE 2. REVENUE SHARING AND PAYMENTS
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2.01 Revenue Sharing.
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(a) RoweCom shall pay to Intelisys, revenue sharing fees in accordance with
Section 2.03 (the "Revenue Sharing Fees") in respect of purchases and
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licenses of products from, and on-line access or transaction charges for,
services provided by RoweCom that are placed by Qualified Intelisys
Licensees pursuant to RoweCom customer agreements.
(b) Intelisys shall pay to RoweCom, Revenue Sharing Fees in respect of
purchases and license of products from, and on-line access or transaction
charges for services provided by, Intelisys that are placed by Qualified
RoweCom Licensees pursuant to Intelisys customer agreements.
2.02 Quarterly Statements. Within 15 days after the end of each calendar
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quarter after the Effective Date and for as long as any amounts are due in
accordance with this Article, each Party shall submit to the other a detailed
statement ("Quarterly Statement") that sets forth:
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(1) In the case of RoweCom as reporting party, each Qualified Intelisys
Licensee that executes a RoweCom customer agreement and, in the case of
Intelisys as reporting party, each Qualified RoweCom Licensee that signs
an Intelisys customer agreement (in each case, a "Customer Agreement");
and
(2) The payments received by such Party during such quarter under all of its
Customer Agreements, irrespective of whether such Customer Agreements were
executed during such quarter.
2.03 Payment. During the Initial Term and any Renewal Term:
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(1) RoweCom shall pay Intelisys, upon delivery of each Quarterly Statement, a
Revenue Sharing Fee equal to ***/1/ shown on the Quarterly Statement
delivered by Intelisys. The Fee Revenue used for calculating such payments
shall be determined as set forth on Exhibit B.
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(2) Intelisys shall pay RoweCom, upon delivery of each Quarterly Statement, a
Revenue Sharing Fee equal to ***/2/ shown on the Quarterly Statement
delivered by RoweCom. The Fee Revenue used for calculating such payments
shall be determined as set forth on Exhibit B.
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/1/ Confidential treatment has been requested for this potion of this exhibit.
A complete copy of this exhibit, including the redacted potion, has been
file with the Securities and Exchange Commission separately.
/2/ Confidential treatment has been requested for this potion of this exhibit.
A complete copy of this exhibit, including the redacted potion, has been
file with the Securities and Exchange Commission separately.
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2.04 Taxes. The amounts payable pursuant to this Article are exclusive of any
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tariffs, duties or taxes, however designated, levied or based on this Agreement,
including, without limitation, any sales and use taxes and any state and local
privilege or excise taxes based on either Party's gross revenue. Each party
agrees to pay and be responsible for all sales, use or excise taxes and levies
that pertain to it with respect to this Agreement.
2.05 Retention of Records and Audit Rights.
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(1) For a period of not less than two years after the termination of this
Agreement, each Party shall maintain, at its own cost, all material data,
files and records pertaining to such Party's performance under this
Agreement and to charges and costs paid or payable by either Party under
this Agreement.
(2) Upon reasonable notice from either Party, the other party shall provide
access to such financial records and supporting documentation as may be
reasonably requested by to audit the Quarterly Statements and any amounts
payable pursuant to Article 2 to verify compliance with the terms of this
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Agreement. If, as a result of such audit, either party determines that any
amounts are due, then the auditing Party shall notify the other Party of
such amount and the other Party shall promptly pay such amount, plus
interest at the rate of one half percent per month, but in no event to
exceed the highest lawful rate of interest, calculated from the date of
receipt of such notice. In the event any such audit reveals that either
Party owes an amount in excess of five percent of the actual Revenue
Sharing Fees due, that Party shall reimburse the other Party for the cost
of such audit.
2.06 Late Payments. Payments made after they are due in accordance with
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Section 2.03 shall be subject to an interest equal to one half of one percent
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per month in respect of the outstanding amount.
ARTICLE 3. REPRESENTATIONS AND WARRANTIES
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3.01 By Intelisys. Intelisys represents and warrants to RoweCom that:
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(1) it is a limited liability company duly organized and validly existing
under the laws of the State of Delaware.
(2) it has all requisite power and authority to execute, deliver and perform
its obligations under this Agreement;
(3) it is financially solvent, able to pay its debts as they mature and
possessed of sufficient working capital to perform all of its duties and
obligations under this Agreement;
(4) it is duly licensed, authorized or qualified to do business and is in good
standing in every jurisdiction in which a license, authorization or
qualification is required for the ownership or leasing of its assets or
the transaction of business of the character transacted by it, except
where the failure to be so licensed, authorized or qualified would not
have a material adverse effect on Intelisys' ability to fulfill its
obligations under this Agreement; and
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(5) there is no outstanding litigation, arbitrated matter or other dispute to
which Intelisys is a party which would be reasonably expected to have a
potential or actual material adverse effect on Intelisys' or RoweCom's
ability to fulfill its respective obligations under this Agreement.
3.02 By RoweCom. RoweCom represents and warrants to Intelisys that:
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(1) it is a corporation duly organized and validly existing under the laws of
the State of Delaware;
(2) it has all requisite power and authority to execute, deliver and perform
its obligations under this Agreement;
(3) it is financially solvent, able to pay its debts as they mature and
possessed of sufficient working capital to perform all of its duties and
obligations under this Agreement;
(4) it is duly licensed, authorized or qualified to do business and is in good
standing in every jurisdiction in which a license, authorization or
qualification is required for the ownership or leasing of its assets or
the transaction of business of the character transacted by it, except
where the failure to be so licensed, authorized or qualified would not
have a material adverse effect on RoweCom's ability to fulfill its
obligations under this Agreement; and
(5) there is no outstanding litigation, arbitrated matter or other dispute to
which RoweCom is a party which would be reasonably expected to have a
potential or actual material adverse effect on RoweCom or Intelisys's
ability to fulfill its respective obligations under this Agreement.
ARTICLE 4. TRADEMARK LICENSE
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(1) RoweCom grants to Intelisys a royalty-fee, non-exclusive license to use
and display the logos trademarks and trade names associated with the
RoweCom Services (the "RoweCom Trademarks") solely in connection with the
transactions contemplated by this Agreement. Intelisys shall not use the
RoweCom Trademarks without RoweCom's prior written consent to each such
use. Intelisys acknowledges that the provisions of this Section 4 do not
convey to Intelisys any right, title or ownership interest in the RoweCom
Trademarks.
(2) Intelisys grants to RoweCom a royalty-fee, non-exclusive license to use
and display the logos trademarks and trade names associated with the
Intelisys Software and the Intelisys Services (the "Intelisys Trademarks")
solely in connection with the transactions contemplated by this Agreement.
RoweCom shall not use the Intelisys Trademarks without Intelisys' prior
written consent to each such use. RoweCom acknowledges that the provisions
of this Section 4 do not convey to RoweCom any right, title or ownership
interest in the Intelisys Trademarks.
ARTICLE 5. COVENANTS
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5.01 By Intelisys. Intelisys covenants that it shall comply with all federal,
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state and local laws and regulations applicable to Intelisys and shall obtain
and maintain all applicable permits and licenses
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required of Intelisys in connection with its obligations under this Agreement.
5.02 By RoweCom. RoweCom covenants that it shall comply with all federal,
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state and local laws and regulations applicable to RoweCom and shall obtain and
maintain all applicable permits and licenses required of RoweCom in connection
with its obligations under this Agreement.
ARTICLE 6. INDEMNITIES
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6.01 By Intelisys. Intelisys shall indemnify RoweCom and its officers,
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directors, members and employees (the "RoweCom Indemnitees"), from and shall
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defend the RoweCom Indemnitees against, any damage, liability, loss or expense
(including attorneys' fees and expenses) (collectively, "Damages") relating to
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or arising out of any claim:
(1) Relating to the inaccuracy or untruthfulness of any representation or
warranty made by Intelisys under this Agreement.
(2) Relating to any duties or obligations of Intelisys, its employees or
agents accruing after the Effective Date with respect to a third party.
(3) Relating to personal injury or tangible property damage arising out of the
performance of Intelisys under this Agreement, to the extent caused by
Intelisys or its agents.
(4) Any misrepresentation of the Knowledge Products or RoweCom Services to the
extent caused by Intelisys or its agents.
(5) Relating to its violation of any applicable laws or regulations in
performing its obligations hereunder.
(6) Relating to any amounts, including taxes, interest and penalties, assessed
against RoweCom which are the obligation of Intelisys pursuant to
Section 2.06.
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Intelisys shall indemnify the RoweCom Indemnitees from any costs and expenses
incurred in connection with the enforcement of this Section.
6.02 By RoweCom. RoweCom shall indemnify Intelisys, and its officers,
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directors, employees and members (the "Intelisys Indemnitees"), from, and shall
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defend the Intelisys Indemnitees against, any Damages relating to or arising out
of any claim:
(1) Relating to the inaccuracy or untruthfulness of any representation or
warranty made by RoweCom under this Agreement.
(2) Relating to any duties or obligations of RoweCom, its employees or agents
accruing after the Effective Date with respect to a third party.
(3) Relating to personal injury or tangible property damage arising out of the
performance of RoweCom under this Agreement, to the extent caused by
RoweCom or its agents.
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(4) Any misrepresentation of the Intelisys Software or the Intelisys Services
to the extent caused by RoweCom or its agents.
(5) Relating to its violation of any applicable laws or regulations in
performing its obligations hereunder.
(6) Relating to any amounts, including taxes, interest and penalties, assessed
against Intelisys which are the obligation of RoweCom pursuant to
Section 2.05.
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RoweCom shall indemnify the Intelisys Indemnitees from any costs and expenses
incurred in connection with the enforcement of this Section.
6.03 Indemnification Procedures.
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(1) If any third party makes a claim against a RoweCom Indemnitee or Intelisys
Indemnitee (each, an "Indemnitee"), with respect to which the Indemnitee
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intends to seek indemnification under Section 6.01 or Section 6.02, the
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Indemnitee shall give prompt notice of such claim to the other Party
(each, an "Indemnifying Party"), including a brief description of the
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amount and basis therefor, if known.
(2) Upon receipt of notice from the Indemnitee, the Indemnifying Party shall
defend Indemnitee against such claim, and the Indemnitee shall cooperate
fully with, and assist, the Indemnifying Party in its defense of such
claim.
(3) The Indemnifying Party shall keep the Indemnitee fully apprised at all
times as to the status of the defense.
(4) The Indemnitee shall have the right to employ its own separate counsel in
any such action, but the fees and expenses of such counsel shall be at the
expense of the Indemnitee; provided that if (a) the Parties agree that it
is advantageous to the defense for the Indemnitee to employ its own
counsel or (b) the Indemnitee reasonably concludes that there may be a
conflict of interest between the Indemnifying Party and the Indemnitee in
the conduct of the defense of such claim (in which case, the Indemnifying
Party shall not have the right to direct or participate in the defense of
such claim on behalf of the Indemnitee), then, in each such instance, the
reasonable fees and expenses of counsel for the Indemnitee shall be
equally shared by the Parties. Neither the Indemnifying Party nor the
Indemnitee shall be liable for any settlement of any action or claim
effected without its consent.
(5) Until (a) the Indemnitee receives notice from the Indemnifying Party that
it will defend and (b) the Indemnifying Party assumes such defense, the
Indemnitee may, at any time after 10 days from the date of the notice to
the Indemnifying Party of the claim, resist the claim or, after
consultation with and the consent of the Indemnifying Party, settle or
otherwise compromise or pay the claim. The Indemnifying Party shall pay
all costs of the Indemnitee arising out of or relating to such defense and
any such approved settlement, compromise or payment. The Indemnitee shall
keep the Indemnifying Party fully apprised at all times as to the status
of the defense. Following indemnification, the Indemnifying Party shall be
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subrogated to all rights of the Indemnitee with respect to the matters for
which indemnification has been made. Notwithstanding the foregoing, the
Indemnitee shall retain, assume or reassume sole control over, and all
expenses relating to, every aspect of the defense that it believes is not
the subject of such indemnification.
ARTICLE 7. TERM AND TERMINATION
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7.01 Initial Term. The term of this Agreement shall commence on the Effective
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Date and continue until 11:59 p.m. (Eastern Standard Time) 24 months thereafter,
unless terminated earlier pursuant to Section 7.03 or Section 7.04 (the "Initial
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Term").
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7.02 Expiration and Renewal. This Agreement will automatically renew for
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additional 24 month periods (each, a "Renewal Term"), in accordance with the
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terms of this Section, upon the expiration of the Initial Term or any Renewal
Term. Either Party shall notify the other party 90 days prior to the expiration
of the Initial Term or any Renewal Term if such Party wishes to cancel this
Agreement. If (a) either Party provides the other Party with notice pursuant to
this Section that such Party desires to renew this Agreement and (b) Intelisys
and RoweCom have not agreed upon the applicable terms and conditions in respect
of the renewal of this Agreement prior to the expiration of the Initial Term or
the Renewal Term then in effect, this Agreement may be extended by either Party
upon notice to the other Party for up to six additional months, from the date of
expiration of the Initial Term or the Renewal Term then in effect (the
"Extension Period"), at the fees, terms and conditions set forth in this
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Agreement. If, during the Extension Period, Intelisys and RoweCom are unable to
reach agreement on the terms and conditions that will apply for the next Renewal
Term, this Agreement shall expire at the end of the Extension Period.
7.03 Termination for Cause. If a Party defaults in the performance of any of
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its material obligations under this Agreement, the non-defaulting Party may give
the defaulting Party written notice of such failure. Within 30 days of receipt
of such notice, the defaulting Party shall remedy the default specified in the
notice. In the event that the defaulting Party fails to remedy such default
within such 30-day period, the non-defaulting Party may terminate this Agreement
upon written notice to the defaulting Party.
7.04 Effect of Termination. Except as otherwise provided in this Agreement,
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upon termination or expiration of this Agreement each Party's rights and
obligations hereunder shall terminate provided that each of RoweCom and
Intelisys shall pay to each other any Revenue Sharing Fees owing to the other
Party for Fees collected post-termination in respect of Customer Agreements
entered into through the date of termination.
ARTICLE 8. CONFIDENTIALITY
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All confidential or proprietary information relating to a Party (the
"Confidential Information") shall be held in confidence by the other Party.
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Neither Party shall disclose, publish, release, transfer, or otherwise make
available Confidential Information of the other Party in any form to, or for the
use or benefit of, any person or entity without the other Party's approval.
Each Party
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shall, however, be permitted to disclose relevant aspects of the other Party's
Confidential Information to its officers, employees and professional advisors,
to the extent that such disclosure is reasonably necessary for the performance
of their duties and obligations under this Agreement; provided that such Party
shall take all reasonable measures to ensure that the Confidential Information
of the other Party is not disclosed or duplicated in contravention of the
provisions of this Agreement by such officers, employees or professional
advisors. The obligations in this Article 8 shall not restrict any disclosure by
either Party pursuant to any applicable law or by order of any court or
government agency and shall not apply with respect to information that is
independently developed by the other Party, becomes part of the public domain
(other than through unauthorized disclosure); or of which either Party gained
knowledge or possession free of any obligation of confidentiality to the
disclosing party. For the purposes of this Agreement, all pricing, fee or
customer information and contacts shall be deemed Confidential Information and
the Parties agree that the title to any customer information, including but not
limited to the name, address, and e-mail address of the customer shall be owned
solely by the Party disclosing such information.
ARTICLE 9. LIMITATIONS ON DAMAGES
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9.01 Direct Damages. Each Party shall be liable to the other Party for any
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direct damages arising out of relating to its performance or failure to perform
under this Agreement provided that the liability of either Party to the other
Party shall not exceed the aggregate Revenue Sharing Fees received by such Party
under this Agreement at the time such liability is finally determined.
9.02 Consequential Damages. Neither Party shall be liable for, nor shall the
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measure of damages include, any indirect, incidental, special or consequential
damages or amounts for loss of income, profits or savings arising out of or
relating to its performance or failure to perform under this Agreement, whether
based on an action or claim in contract, equity, negligence, tort or otherwise.
9.03 Exclusions. The limitations or exculpations of liability set forth in
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Section 9.01 and Section 9.02 are not applicable to (1) breaches of Article 8,
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(2) liability resulting from the gross negligence or other intentional acts of a
Party or (3) indemnification claims set forth in Section 6.01 and Section 6.02.
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ARTICLE 10. MISCELLANEOUS PROVISIONS
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10.01 Representatives. Each of the Parties shall designate one or more
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representatives to act on its behalf in dealings with the other Party on matters
relating to this Agreement (each, a "Designated Representative"). Either Party
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may at any time change its Designated Representative by giving the other Party
notice of a change of Designated Representative. The name of each Designated
Representative as of the Effective Date is:
For RoweCom:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇.
Executive Vice President and Chief Financial Officer
RoweCom, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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For Intelisys:
▇▇▇▇▇▇ ▇▇▇▇▇▇
Chief Financial Officer
Intelisys Electronic Commerce
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
10.02 Survival. The terms of Section 2.02, Section 2.04, Section 2.05,
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Section 2.06, Article 3, Article 6, Article 8, Article 9, this Section, Section
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10.08 and Section 10.13 shall survive any termination of this Agreement.
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10.03 Assignment. Neither Party shall, without the consent of the other Party,
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assign this Agreement, except that either Party may assign this Agreement
pursuant to a merger or corporate reorganization of such Party without such
consent. The consent of a Party to any assignment of this Agreement shall not
constitute such Party's consent to further assignment. This Agreement shall be
binding on the Parties and their respective successors and permitted assigns.
Any assignment in contravention of this Section shall be void.
10.04 No Waivers. No failure or delay on the part of either Party to exercise
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and no delay in exercising any right or remedy hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise by a Party of any right
or remedy hereunder preclude any other or further exercise thereof or the
exercise of any other right.
10.05 Partial Invalidity. In the event that any of the provisions of this
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Agreement shall be invalid, illegal or unenforceable in any respect, the
validity, legality or enforceability of the remaining provisions of this
Agreement shall not be affected or impaired thereby.
10.06 Notices. All notices, designations, approvals, consents, requests,
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acceptances, rejections or other communications required or permitted by this
Agreement shall be in writing and shall be delivered or sent to the Parties at
their respective addresses as follows:
If to RoweCom:
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RoweCom, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇.
Chief Financial Officer
Fax No.: ▇▇▇-▇▇▇-▇▇▇▇
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If to Intelisys:
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Intelisys Electronic Commerce LLC
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Att.: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Chief Financial Officer
Fax No.: ▇▇▇-▇▇▇-▇▇▇▇
Either Party may at any time, by notice to the other Party delivered or mailed
in such manner, change the address to which communications to it are to be sent.
10.07 Relationship. The performance by each Party of its duties and obligations
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under this Agreement shall be that of an independent contractor and nothing
contained in this Agreement shall create or imply an agency relationship between
Intelisys and RoweCom. This Agreement shall not be deemed to constitute a joint
venture or partnership between the Parties.
10.08 Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of New York, without giving effect to the
conflicts of law principles thereof.
10.09 Covenant of Further Assurances. The Parties covenant and agree that,
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subsequent to the execution and delivery of this Agreement and without any
additional consideration, each of the Parties shall execute and deliver any
further legal instruments and perform any acts which are or may become necessary
to effectuate the purposes of this Agreement.
10.10 Entire Understanding. This Agreement and the Exhibits to this Agreement
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represents the entire understanding of the Parties with respect to its subject
matter and supersedes all previous writings, correspondence and memoranda with
respect thereto between the Parties, and no representations, warranties,
agreements or covenants, express or implied, of any kind or character whatsoever
with respect to such subject matter have been made by either Party to the other,
except as expressly set forth in this Agreement.
10.11 Amendments. This Agreement may be modified or amended only by a document
----------
duly executed on behalf of each Party.
10.12 Third Party Beneficiaries. Each Party intends that this Agreement shall
-------------------------
not benefit or create any right or cause of action in or on behalf of any person
or entity other than RoweCom and Intelisys.
10.13 Publicity. Each Party shall (1) submit to the other all advertising,
---------
written sales promotions, press releases and other publicity matters relating to
this Agreement in which the other Party's name or ▇▇▇▇ is mentioned or which
contains language from which the connection of said name or ▇▇▇▇ ▇▇▇ be inferred
or implied and (2) not publish or use such advertising, sales promotions, press
releases or publicity matters without the other Party's consent, which consent
will not be unreasonably withheld; provided that, notwithstanding any other
-------------
provision of this Agreement, no consent shall be required in the event that
either Party is engaged in an initial public offering or other
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transaction that requires, in the reasonable judgment of that Party, the
provision of such information to third parties, including without limitation,
disclosing the relationship between the Parties, or the transactions
contemplated by this Agreement or the filing of a copy of this Agreement as part
of its registration statement.
10.14 Force Majeure. Neither Party shall be liable, or be deemed to be in
-------------
default, to the other Party hereunder by reason or account of any delay or
omission caused by epidemic, action of the elements, strikes, lockouts, sabotage
(except as caused by a Party's employees or agents), labor disputes,
governmental law, regulations, ordinances, order of a court of competent
jurisdiction, executive decree or order, act of God or public enemy, war, riot,
civil commotion, earthquake, flood, explosion, casualty, embargo or any other
similar cause beyond the control of such Party (each, a "Force Majeure Event").
-------------------
The time of performance of each Party's obligations under this Agreement shall
be extended for so long as such Force Majeure Event continues; provided that in
the event such period of extended delay exceeds 30 days in respect of a Party,
the other Party may terminate this Agreement upon notice to such Party.
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed by their duly authorized representative as of the date first written
above.
INTELISYS ELECTRONIC COMMERCE LLC ROWECOM, INC.
By: __________________________________ By: ___________________________________
Name:_________________________________ Name:__________________________________
Title:________________________________ Title:_________________________________
Date:_________________________________ Date:__________________________________
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EXHIBIT A
INTELISYS SOFTWARE LICENSE AGREEMENT
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EXHIBIT B
FEES
FEE REVENUE
(a) For purposes of calculating payments due Intelisys under Section 2.03, Fee
Revenue means amounts billed by RoweCom to customers that purchase Knowledge
Products as a result of Intelisys' referrals (as documented by a Customer
Agreement) in respect of RoweCom Services, ***/3/
(b) For purposes of calculating payments due RoweCom under Section 2.03, Fee
Revenue means license fees billed by Intelisys to customers that purchase
Intelisys Software or Intelisys Services as a result of RoweCom's referrals (as
documented by a Customer Agreement), ***/4/.
-------------------------------------
/3/ Confidential treatment has been requested for this potion of this exhibit. A
complete copy of this exhibit, including the redacted potion, has been file with
the Securities and Exchange Commission separately.
/4/ Confidential treatment has been requested for this potion of this exhibit. A
complete copy of this exhibit, including the redacted potion, has been file with
the Securities and Exchange Commission separately.
EXHIBIT C
WEB SITE METERING FORMULA
2
