PROMOTIONS AGREEMENT
THIS PROMOTIONS AGREEMENT (the "Agreement") is made as of: March 30, 2002 (the
"Effective Date") by and between EBAY INC., a Delaware corporation with its
principal place of business at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ ("eBay"),
and ▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. a Colorado corporation with its principal place of
business at ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
("Sponsor").
1. CERTAIN DEFINITIONS.
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1.1 "eBay Content" means the eBay creative collateral for eBay
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advertisements, in any medium, provided by eBay for display by Sponsor
on the Sponsor Page(s) or offline marketing as provided in this
Agreement, excluding consent provided by eBay Users.
1.2 "eBay Marks" mean the eBay domain names, trademarks and logos and
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other branding elements used in the performance of this Agreement.
1.3 "eBay Site" means the web site owned and operated by eBay and
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accessible at ▇▇▇.▇▇▇▇.▇▇▇ and ▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇. "eBay Site"
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includes eBay Premier but does not include any current or future
domestic co-branded properties or international properties in which
eBay currently participates or may participate in the future,
including but not limited to ▇▇▇▇▇▇▇▇.▇▇▇.
1.4 "eBay User" means any person who accesses any page on the eBay Site.
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1.5 "GMS" means the gross merchandise sales of Sponsor items on the
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Sponsor Page(s) or eBay Site.
1.6 "Marks" means the Sponsor Marks or eBay Marks, as applicable.
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1.7 "Promotional Placements" means the promotional placements and
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activities.
1.8 "Sponsor Content" means any and all Sponsor-related materials provided
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by Sponsor appearing on the eBay Site, including materials provided on
behalf of Sponsor vendors and promotional content provided to eBay for
display on the eBay Site.
1.9 "Sponsor Marks" means the Sponsor domain names, trademarks and logos
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and other branding elements used in the performance of this Agreement.
1.11 "Sponsor Services" means the services to be provided by Sponsor in
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connection with this Agreement, related to Sponsor's selling of items
via the Sponsor Page (as defined below).
2. DEVELOPMENT AND IMPLEMENTATION.
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2.1 Sponsor Page Development. Within thirty (30) days of the Effective
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Date and in accordance with eBay's standards and policies, Sponsor
will develop and launch, as a sub-part of the eBay Site, page(s) on
the eBay Site (the "Sponsor Page") that: (i) is specific to Sponsor
and includes an "About Me" page, a "Store Items" page and "About My
Stores" page; (ii) displays Sponsor Content, including without
limitation merchandise information, using eBay's "storefronts"
technology, specifications and formats; and (iii) is subject to eBay's
prior review and approval which may be withheld in its sole
discretion. eBay will host the Sponsor Page, and Sponsor will be
responsible for all development and other costs, excluding hosting
expenses, associated with the Sponsor Page. eBay will provide Sponsor
reasonable assistance to format the Sponsor Content for inclusion on
the eBay Site. Subject to the foregoing, Sponsor will have editorial
control regarding the Sponsor Content on the Sponsor Page provided all
Sponsor Content complies with Section 4.5 ("Content Standards"). The
parties expressly acknowledge and agree that no third-party
advertising or links will be placed on the Sponsor Page, unless the
parties otherwise mutually agree in writing.
2.2 Content and Merchandise.
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2.2.1 Listing. During the term of this Agreement, Sponsor shall
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ensure that the Sponsor Page fulfills the minimum gross
merchandise sales requirements set forth, in Appendix 1.
2.2.2 User Agreement. Sponsor acknowledges and agrees that in its
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capacity as a seller of items on the Sponsor Page it will
comply with then-current eBay User Agreement and privacy
policy, incorporated herein by reference. Sponsor shall be
responsible for all merchandise listing, procurement,
authentication, and fulfillment with respect to merchandise
provided by Sponsor within the Sponsor Page in accordance
with the eBay User Agreement. Sponsor agrees that all
information provided by or on behalf of Sponsor, including
without limitation, information relating to the Sponsor
Content, will be complete and accurate.
2.3 Bid Verification. Certain items, such as high profile memorabilia, may
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cause users to submit spoof bids. To help screen out spoof bids,
Sponsor will, at its sole expense, contact bidders who bid more than
$5,000 for any Sponsor item. Sponsor's item listing shall incorporate
the following text:
"Sponsor appreciates the enthusiastic interest in [name of the item].
To help ensure a smooth process for all participants, Sponsor will
contact bidders via telephone within 24 hours of their bids to verify
any bid of $5,000 or more. Please be available to receive a phone call
at the number associated with your eBay User ID in order to verify
your bid. If Sponsor cannot verify your intent to bid over the
telephone, your bid will be removed. Contacting high bidders before
the end of a transaction to verify their intent to bid is an extra
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security measure many eBay sellers employ, especially those with
high-priced or unique items. Thank you for your support!"
2.4 Additional Requirements. Unless otherwise directed by eBay, the
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Sponsor Pages will include eBay-approved messaging which provides,
without limitation, that Sponsor, the Sponsor Services, Sponsor
Content, products and Sponsor's network of web sites are separate from
eBay and not endorsed by eBay.
2.5 User Relations. Sponsor will be solely responsible for providing all
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customer support regarding the Sponsor Page, including without
limitation responding to all inquiries regarding items offered for
sale on such pages,, and eBay may redirect to Sponsor any associated
customer support inquiries. Sponsor will provide eBay with a toll-free
telephone number and/or email address that eBay may provide to eBay
Users when redirecting such customer support inquiries to Sponsor.
eBay will provide online customer service for users of the Sponsor
Page in a manner equivalent to that provided to eBay users generally.
2.6 Training & Support. In order to facilitate Sponsor's performance of
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its obligations under this Agreement, eBay will provide limited,
ongoing support and a training session for selected Sponsor personnel
addressing the necessary tools and services to list, operate, market,
and manage their listings on the Sponsor Page. Such eBay assistance
may include referrals to third-party service providers who offer
auction management tools. In addition, eBay will use commercially
reasonable efforts to provide support for charity listings, if needed.
2.7 Transaction Fulfillment. Upon the closing of each listing, Sponsor
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will take all necessary steps to complete legitimate transactions,
subject to the legal compliance requirements set forth in Section 11
of this Agreement (e.g., Sponsor will not fulfill a transaction if the
recipient is not of legal age to consume alcoholic beverages).
2.8 User Agreements. eBay shall have sole control over the user agreement
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and privacy policy that govern the eBay Site, including the Sponsor
Page
3. PROMOTION AND TNTEGRATION.
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3.1 Promotion by Sponsor. During the term of this Agreement, Sponsor will
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promote Sponsor Page and/or Sponsor items on the eBay Site. Such
promotional activities conducted by Sponsor may be in any of the
following methods, provided that eBay pre-approves the content,
timing, and format of each such promotion: (i) at least six (6) email
messages to Sponsor's buyers and sellers discussing the agreement and
ongoing auctions, subjcct to compliance with Sponsor's privacy policy;
(ii) co-branded signage in physical locations; and (iii) print
advertisements in target publications.
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3.2 Promotion by eBay. During the term of this Agreement, eBay may, in its
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sole discretion, promote Sponsor Page and/or Sponsor items on the eBay
Site by running promotions for the Event, in an amount and timing it
chooses in its sole discretion, on relevant major category pages
throughout the site, including the Antique Roadshow and selected
Category Index pages. eBay may promote Sponsor items on the eBay site
by (i) sending emails to eBay community members who have opted to
receive marketing emails from eBay; (ii) joint advertising in trade
publications as mutually agreed upon; and (iii) the parties may engage
in other promotional opportunities to be mutually agreed upon by eBay
and Sponsor.
3.3 Delivery Requirements. Sponsor will deliver the Sponsor Content to
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eBay in a mutually agreeable format and on a mutually acceptable
uploading and refresh schedule. eBay may refuse delivery of any
Sponsor Content delivered in an unsupported format, and may reject any
Sponsor Content that does not conform to the requirements of eBay's
then current policies relating to content, as such policies are
applied to third parties supplying content to eBay.
3.4 Guidelines. Positioning of advertisements within the eBay Site is at
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the sole discretion of eBay, and Sponsor acknowledges that eBay has
not made any guarantees with respect to usage statistics or levels of
Impressions for any advertisement. This Agreement will not restrict
eBay's ability or discretion to change or otherwise modify any of
eBay's web sites or pages thereof.
3.5 Right to Reject Content. All Sponsor Content is subject to eBay's
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approval. In addition, eBay shall have the absolute right to reject
any URL link embodied within Sponsor Content.
4. LICENSES AND STANDARDS.
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4.1 Content License. Subject to the terms of this Agreement, Sponsor
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hereby grants to eBay a non-exclusive, nontransferable, and
non-assignable license to use, reproduce, distribute (only as
necessary to promote the Sponsor Services in a manner consistent with
this Agreement), publicly display and publicly perform (in digital or
analog formats), the Sponsor Content on the eBay Site, or otherwise as
reasonably appropriate to advertise and promote the Sponsor Service
and the Sponsor Content. Subject to the terms and conditions hereof,
eBay hereby grants to Sponsor a non-exclusive, nontransferable, and
non-assignable license to reproduce, distribute, publicly perform and
publicly display (in digital or analog formats) the eBay Content in or
in conjunction with the Sponsor Page.
4.2 Trademarks. Subject to the terms of this Agreement, Sponsor hereby
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grants to eBay a non-exclusive, nontransferable, and non-assignable
license to use the Sponsor Marks on the eBay Site, as well as in
promotions of the Sponsor in a manner consistent with this Agreement.
Subject to the terms of this Agreement, eBay hereby grants to Sponsor
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a non exclusive, nontransferable, and nonassignable license to use the
eBay Marks provided by eBay to Sponsor on the Sponsor Page, subject to
eBay's prior written approval (which may be withheld at its sole
discretion) and in a manner consistent this Agreement. However, each
▇▇▇▇ license is conditioned on the licensee providing the licensor
with a sample of the ▇▇▇▇ use and obtaining the licensor's approval of
such sample prior its use.
4.3 Trademark Restrictions. The ▇▇▇▇ licensor may terminate its foregoing
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trademark license if, in the licensor's reasonable discretion, the
licensee's use of licensor's Marks tarnishes, blurs or dilutes the
quality associated with licensor's Marks or the associated goodwill
and such problem is not cured within ten (10) days of notice of
breach; alternatively, instead of terminating the license in total,
the licensor may specify that certain licensee uses may not contain
the Marks. Title to and ownership of a ▇▇▇▇ shall remain with the
licensor. The licensee shall use the licensor's Marks exactly in the
form provided and in conformance with any trademark usage policies.
The licensee shall not take any action inconsistent with the
licensor's ownership of the Marks, and any benefits accruing from use
of such Marks shall automatically vest in the licensor. Except as may
be expressly agreed by the parties, the licensee shall not form any
combination marks with the licensor's Marks. Each party hereby admits
and recognizes the other's exclusive ownership of the other's Marks
and the renown of the other's Marks worldwide.
4.4 Ownership. Except as expressly set forth in this Agreement, neither
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party grants to the other any rights in or to any technology, content,
customer data, intellectual property or other rights or property of
such party. All rights not expressly granted hereunder are reserved.
4.5 Content Standards. Sponsor will not provide any Sponsor Content, that:
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(i) infringes any third party's U.S. copyright, patent, trademark,
trade secret or other proprietary rights or rights of publicity or
privacy; (ii) violates Duty law, statute, ordinance or regulation
(including without limitation the laws and regulations governing
export control, unfair competition, anti-discrimination or false
advertising); (iii) is defamatory, trade libelous, unlawfully
threatening or unlawfully harassing; (iv) is obscene, harmful to
minors or child pornographic; (v) contains any viruses, Trojan horses,
worms, time bombs, cancelbots or other computer programming routines
that are intended to damage, detrimentally interfere with,
surreptitiously intercept or expropriate any system, data or personal
information; or (vi) is false, misleading or inaccurate.
5. EXCLUSIVITY. This Agreement is nonexclusive.
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6. USER DATA.
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6.1 No Data Sharing. The parties acknowledge and agree that eBay will not
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share any information regarding eBay Users with Sponsor. Subject to the
foregoing, in its capacity as a seller on the eBay Site, Sponsor may
receive personally identifiable information regarding eBay Users ("User
Data") under the normal use of the eBay Site. In the event that Sponsor
receives information regarding eBay Users from eBay outside of the normal
use of the eBay Site, Sponsor agrees to: (i) keep such information
confidential; (ii) not use that information to contact or communicate with
any eBay User [except to fulfil transactions conducted via the eBay Site];
and (iii) not sell, rent, lease or otherwise disclose such information to
any other person or entity (including affiliates).
6.2 User Data; Restrictions on Use. Sponsor agrees to only use User Data in
-----------------------------------
accordance with the then-current eBay Privacy Policy. Sponsor will not
solicit or facilitate the solicitation by any third, party of eBay Users as
a result of their status as eBay members, and Sponsor will explicitly not
refer to eBay Users as "eBay Users" or "eBay members" (or any such
reference) in any such promotion. Without limiting the foregoing, Sponsor
agrees not to: (a) spam or otherwise send unsolicited communications to any
bidder or other visitor to the Sponsor Page; (b) to sell or disclose lists
of bidders/purchasers of merchandise on the eBay Site; or (c) otherwise
disclose to any third parties any personally-identifiable information
regarding any bidders/purchaser, of merchandise through the Sponsor Page.
This Section 6 shall survive any expiration or termination of the
Agreement.
7. PAYMENT TERMS. All payments pursuant to this Section 7 ("Payments") are
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non-refundable. Sponsor agrees to pay to eBay the fees set forth in
Appendix 1 in the amounts and according to the timeframes specified
therein. Further, Sponsor shall collect and pay and indemnify and hold eBay
harmless from, any sales, use, excise, import or export value added or
similar tax or duty associated with this Agreement not based on eBay's net
income, including any penalties and interest, as well as any costs
associated with the collection or withholding thereof, including reasonable
attorneys' fees.
8. CONFIDENTIALITY.
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8.1 Confidential Information Defined. A party's "Confidential Information"
---------------------------------
is defined as any confidential or proprietary information of a party
which is disclosed to the other party in a writing marked confidential
or, if disclosed orally, is identified as confdential at the time of
disclosure and is subsequently reduced to a writing marked
confidential and delivered to the other party within ten (10) days of
disclosure. The terms of this Agreement shall be deemed Confidential,
information.
8.2 Mutual Obligations. Each party will hold the other party's Confdential
-------------------
Information in confidence and will not disclose such Confidential
Information to third parties nor use the other party's Confidential
Information for any purpose other than as required to perform under
this Agreement. Such restrictions will not apply to Confidential
Information which (a) is already known by the recipient, (b) becomes
Confidential 6
publicly known through no act or fault of the recipient, (c) is
received by recipient from a third party without a restriction on
disclosure or use, or (d) is independently developed by recipient
without reference to the Confidential Information. The restriction on
disclosure will not apply to Confidential Information which is
required to be disclosed by a court, government agency, regulatory
requirement, or similar disclosure requirement, provided that
recipient will first notify the disclosing party of such disclosure
requirement or order and use reasonable efforts to obtain confidential
treatment or a protective order. The parties' respective obligations
hereunder will survive the expiration or early termination of this
Agreement for a period of three (3) years.
8.3 Return of Confidential Information Upon Termination. Upon termination
----------------------------------------------------
of this Agreement, the receiving party will return to the disclosing
party all Confidential Information of the disclosing party and all
documents or media containing any such Confidential Information and
any and all copies or extracts thereof; provided that this does not
obligate the parties to relinquish copies of this Agreement or other
legal or business records relating to this Agreement.
8.4 Confidential Treatment. Without limiting the foregoing, and subject to
-----------------------
compliance with applicable law, each party agrees to notify the other
in the event any element of this Agreement may need to be disclosed
pursuant to any regulatory or other disclosure requirement, and to
further seek confidential treatment requested by the other with
respect to certain confidential elements of the Agreement and any
documents related thereto (including information relating to fees,
payments and integration) in any governmental or public filings.
9. TERM AND TERMINATION.
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9.1 Term and Termination. The term of this Agreement shall be one year,
----------------------
commencing on the Effective Date (the "Term"). The Agreement may be
terminable early: (i) if a party materially breaches this Agreement
and does not cure such breach within ten (10) days following written
notice thereof from the non-breaching party; (ii) by mutual written
agreement; and (iii) by either party for convenience upon thirty (30)
days prior written notice.
9.2 Effects of Termination. Upon expiration or termination, all licenses
-----------------------
granted hereunder shall terminate unless such licenses are expressly
stated as surviving.
9.3 Survival. Sections 1 ("Certain Definitions"); 2.5 ("User Relations");
4.4 ("Ownership"); 4.3 ("Trademark Restrictions") (relating to
intellectual property ownership); Section 7 and Appendix 1 ("Payments
Terms"); 6 ("User Data"); 8 ("Confidentiality"); 9.3 ("Survival"); 10
("Representations and Warranties"); 11 ("Indemnification"); and 13
("Miscellaneous") will survive the expiration or early termination of
this Agreement.
Confidential 7
10. REPRESENTATIONS AND WARRANTIES
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10.1 Performance Warranty. Sponsor hereby acknowledges that it is
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responsible for ensuring legal compliance for the transactions
involving the items it lists on the eBay Site. Accordingly, Sponsor
hereby represents and warrants without limitation that:
o That the description of each item Sponsor lists on the eBay Site
is accurate and complete; and
o Sponsor will perform any and all other tasks, or make any and all
disclosures, required to ensure the legal compliance of its
transaction on the eBay Site.
10.2 Compliance with Laws. At its own expense, Sponsor shall comply with
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all applicable laws, regulations, rules, ordinances and orders
regarding the Sponsor Service and Sponsor Content (including
merchandise offered by Sponsor). Additionally, Sponsor represents and
warrants that: (a) every selling entity participating in every
Sponsor-enabled transaction has all governmental approval, permits and
licenses, and has made all governmental filings and registrations,
necessary or prudent for the marketing and performance of the Sponsor
Service, and (b) eBay is not required to obtain any governmental
approval, permits or licenses as a result of this Agreement, eBay's
performance hereunder or any payments made by Sponsor hereunder.
10.3 Disclaimer of Other Warranties. EXCEPT AS EXPRESSLY STATED HEREIN,
--------------------------------
EACH PARTY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED
OR STATUTORY. INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF
TITLE, NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. THE SERVICES PROVIDED BY EBAY HEREUNDER ARE PROVIDED "AS IS".
EBAY DOES NOT REPRESENT OR WARRANT THAT THE EBAY SITE WILL OPERATE
SECURELY OR WITHOUT INTERRUPTION. Each party acknowledges that it has
not entered into this Agreement in reliance upon any warranty or
representation except those specifically set forth herein.
11. INDEMNIFICATION.
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eBay will indemnify Sponsor against any and all claims, losses,
liabilities, costs and expenses, including reasonable attorneys' fees
(collectively, "Claims") which Sponsor may incur as a result of any third
party actions arising from or relating to infringement by any eBay ▇▇▇▇ of
a U.S. patent, copyright, trademark right or other intellectual property
right of a third party, except where such eBay Marks has been modified
without authorization, and such modification is the basis of the Claim.
Such indemnification will be eBay's sole and exclusive obligation and
Sponsor's sole and exclusive remedy as a result of any third party actions
Confidential 8
arising from infringement. In addition, Sponsor will indemnify eBay against
any and all Claims which eBay may incur as a result of any third parties
actions arising from or relating to (i) a breach of Sponsor's
representations or warranties under Section 11; (ii) Sponsor Services or
Sponsor Content, and (iii) infringement by any Sponsor ▇▇▇▇, Sponsor
Content, or Sponsor Services of a U.S. patent, copyright, trademark right
or other intellectual property right of a third party, except where such
Sponsor ▇▇▇▇ or Sponsor Content has been modified without authorization,
and such modification is the basis of the Claim. Such indemnification will
be Sponsor's sole and exclusive obligation to eBay as a result of any third
party actions arising from infringement. The foregoing obligations are
conditioned on the indemnified party: (i) giving the indemnifying party
notice of the relevant claim, (ii) cooperating with the indemnifying party,
at the indemnifying party's expense, in the defense of such claim, and
(iii) giving the indemnifying party the right to control the investigation,
defense and settlement of any such claim, except that the indemnifying
party will not enter into any settlement that affects the indemnified
party's rights or interest without the indemnified party's prior written
approval. The indemnified party will have the right to participate in the
defense at its expense.
12. LIMITATION OF LIABILITY. EXCEPT IN THE EVENT OF A BREACH OF SECTIONS 6
--------------------------
("USER DATA"), 8 ("CONFIDENTIALITY"), OR 10 ("REPRESENTATIONS AND
WARRANTIES"), NEITHER PARTY WILL BE LIABLE FOR SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES OR LOST PROFITS (HOWEVER ARISING, INCLUDING
NEGLIGENCE) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. EXCEPT
WITH RESPECT TO AMOUNTS TO BE PAID BY SPONSOR TO EBAY HEREUNDER, AND EXCEPT
IN THE EVENT OF A BREACH OF SECTIONS 6 ("USER DATA"), 8 ("CONFIDENTIALITY")
OR 10 ("REPRESENTATIONS AND WARRANTIES"), A FAILURE TO PAY UNDER APPENDIX 1
("PAYMENT TERMS"), OR A CLAIM UNDER SECTION 11 ("INDEMNIFICATION"), IN NO
EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY IN AN AMOUNT GREATER
THAN ONE HUNDRED THOUSAND DOLLARS ($100,000). THIS LIMITATION OF EACH
PARTY'S LIABILITY IS CUMULATIVE, WITH ALL PAYMENTS FOR CLAIMS OR DAMAGES IN
CONNECTION WITH THIS AGREEMENT BEING AGGREGATED TO DETERMINE SATISFACTION
OF THE LIMIT. THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THE
LIMIT.
13. GENERAL
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13.1 Governing Law; Venue. This Agreement will be construed in accordance
----------------------
with and governed exclusively by the laws of the State of California
applicable to agreements made among California residents and to be
perforated wholly within such jurisdiction, regardless of such
parties' actual domiciles. Both parties submit to personal
jurisdiction in California and further agree that any cause of action
arising under this Agreement will be brought exclusively in a court in
Santa ▇▇▇▇▇ County, CA.
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13.2 Publicity. Without limiting the provisions of Section 8
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("Confidentiality"), neither party will make any public statement
regarding the terms of this Agreement or any aspect thereof without
the prior written approval of the other party, provided that to the
extent such disclosure is required by law, rule, regulation, or
governmental or court order, the party requesting disclosure will
furnish the counter-party with sufficient time to address such request
with any such governmental agency and seek confidential treatment.
13.3 Press Releases. Sponsor shall not issue any press release nor make any
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public statement regarding this Agreement (including the terms and
existence thereof) or the relationship of the parties without eBay's
prior written approval which may be withheld in eBay's sole
discretion. Nothing herein shall require eBay to approve the issuance
of a press release nor obligate eBay to participate in a press release
with Sponsor; provided however, Sponsor will cooperate in, any
publicity efforts initiated by eBay.
13.4 Independent Contractors. This Agreement does not create, and nothing
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contained in this Agreement will be deemed to establish a joint
venture between the parties, or the relationship of employer-employee,
partners, principal-agent or the like. Further, neither party will
have the power to bind the other without the other's prior written
consent, nor make any representation that it has any such power.
13.5 Assignment. Neither party may assign its rights nor delegate its
-----------
duties hereunder without the other party's prior written consent and
any purported attempt to do so will be null and void.
13.6 Severability; Headings. If any provision herein is held to be invalid
-----------------------
or unenforceable for any reason, the remaining provisions will
continue in full force without being impaired or invalidated in any
way. The parties agree to replace any invalid provision with a valid
provision that most closely approximates the intent and economic
effect of the invalid provision. Headings are for reference purposes
only and in no way define, limit, construe or describe the scope or
extent of such section.
13.7 Force Majeure. If performance hereunder (other than payment) is
---------------
interfered with by any condition beyond a party's reasonable control,
the affected party will be excused from such performance to the extent
of such condition.
13.8 Notice. Any notice under this Agreement will be in writing and
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delivered by personal delivery, overnight courier, confirmed
facsimile, confirmed email, or certified or registered mail, return
receipt requested, and will be deemed given upon personal delivery,
one (1) day after deposit with an overnight courier, five (5) days
after deposit in the mail, or upon confirmation of receipt of
facsimile or email. Notices will be sent to a party at its address set
Confidential 10
forth above or such other address as that party may Specify in writing
pursuant to this Section 13.8 ("Notice").
13.9 Counterparts. This Agreement may be executed in two or more
-------------
counterparts, each of which will be deemed an original and all of
which together will constitute one instrument.
13.10 Entire Agreement; Waiver. This Agreement, including all documents
---------------------------
referred to herein, sets forth the entire understanding and agreement
of the parties, and supersedes any and all oral, or written agreements
or understandings between the parties. This Agreement may be changed
only by a writing signed by both parties. The waiver of a breach of
any provision of this Agreement will not operate or be interpreted as
a waiver of any other or subsequent breach. In the event of a conflict
between this Agreement and any Appendices attached hereto, the terms
in the Agreement shall control.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
Effective Date.
EBAY INC. ("EBAY"): ▇▇▇▇▇▇▇▇▇.▇▇▇ ("SPONSOR")
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------- --------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President Title: President
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APPENDIX 1
Payment Terms and GMS Guarantees
--------------------------------
The parties agree to the following payment terms for the Tenn of this Agreement:
1. Standard Fees. During the Term of this Agreement, eBay's will waive all
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insertion and gallery fees on the eBay Site.
Final Value Fees. Sponsor will pay eBay twenty percent (20%) of the Final
-----------------
Value Fees (the amounts agreed to be paid by winning bids) of all items
listed on the Sponsor Page and eBay Site.
2. Terms. Sponsor agrees to pay all fees on a monthly basis according to the
------
terms on the eBay Site. Payment must be received by eBay within thirty days
after the end of the month in which such fees accrued. Sponsor agrees to
place a credit card number on file which shall be billed in the event any
monthly payment is more than sixty (60) days past due. Any amounts not paid
when due shall bear interest until paid at the lower of one and one half
percent (1.5%) per month or the highest rate allowed by law.
3. Minimum GMS Guarantee. During the Term, Sponsor guarantees that, at a
----------------------
minimum, it will sell on the Sponsor Page and eBay Site (the "Minimum GMS
Guarantee"):
Quarter Minimum GMS Guarantee
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Q2-2002 $ 250,000
Q3-2002 $ 250,000
Q4-2002 $ 250,000
Q1-2003 $ 250,000
Total during Term: $ 1,000,000
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