XxxxxxXxxxxx.xxx
RESELLER AND MALL AGREEMENT
Frontiervision
"NOTE--Certain confidential technical and commercial information has been
redacted from this exhibit in order to preserve the confidentiality of such
information. All of the confidential information which has been redacted is
on file with the Securities and Exchange Commission. Redacted material is
indicated by the symbol, "[**REDACTED**]" where such redacted text would have
appeared in this exhibit."
THE RESELLER AND MALL AGREEMENT (the "Agreement") is made and entered into as
of the date set forth on the Addendum attached hereto and by this reference
made a part hereof (the "Addendum"), between and among XXXXXXXXXXXX.XXX,
INC., a California corporation, and NETGATEWAY, a Nevada corporation, on the
one hand (collectively, "StoresOnline"), and the Reseller identified on the
Addendum, on the other hand ("Reseller").
R E C I T A L S
A. Reseller is an established business entity, engaged in the business
described in the Addendum.
B. StoresOnline owns, operates and maintains an Internet storefront-
building services package comprised of certain services delivered through
StoresOnline's proprietary software, the standard features of which are more
particularly described on the Addendum (the "Services").
C. The Services are delivered through the Internet and may be made
available through a private, branded electronic exchange to be developed for
Reseller.
D. StoresOnline desires to (i) sell and license the Services to
Reseller for Reseller's resale and sublicense to end-user customers or, with
the written permission of StoresOnline, to other resellers and (ii) develop
certain on-line mall(s) to be branded around Reseller's name, brand and image
(the "Malls").
AGREEMENT
NOW, THEREFORE, on the basis of the foregoing recitals, and in
consideration of the mutual promises contained herein, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto covenant and
agree as follows:
1. SERVICES.
a. SCOPE OF AGREEMENT. This Agreement covers (i) the purchase,
licensing, promotion and sale of the Services and (ii) the design and
development of the Malls pursuant to and in accordance with the terms and
conditions set forth on the Addendum.
b. LICENSE GRANT; SALE OF SERVICES. StoresOnline grants to
Reseller, subject to the terms and conditions of this Agreement, the
[**REDACTED**] right and license to resell and sublicense (in the case of
software products), the Services to Reseller's end-user customers or, with
the written permission of StoresOnline, to other resellers. In the case of
software products, Reseller acknowledges that such software is and will
remain proprietary to StoresOnline, is copyrighted and that Reseller acquires
no right, title or interest in or to any such software by this Agreement.
Reseller agrees to sublicense the Services hereunder pursuant to the license
terms set forth in the Addendum, and to cause each of its customers or other
resellers to sublicense the Services pursuant to such license terms, which
terms shall be accepted electronically as part of the storefront registration
process described below.
c. PRODUCT NAME. It is expressly agreed that the ownership and all
right, title and interest in and to the Services and any trademark, trade
name, patent, or copyright relating to the Services is and will remain vested
solely in StoresOnline, PROVIDED, HOWEVER, that as permitted by this
Agreement, Reseller may use any existing or future trademark, trade name,
patent or copyright relating to the Services, such use to be limited to
promoting, selling, installing or maintaining the Services, and PROVIDED,
FURTHER, that as permitted by this Agreement, the Services may be branded
around Reseller's name, brand and image. Reseller shall use its best efforts
during the term of this Agreement to protect StoresOnline's trademarks, trade
names, patents and copyrights, but shall not be required to instigate legal
action against third parties for any infringement thereof. Reseller shall
notify StoresOnline of any infringement as soon as practicable after becoming
aware of any such infringement. Reseller shall not use, directly or
indirectly, in whole or in part, StoresOnline's name or any other trade name
or trademark, that is owned or used by StoresOnline in connection with any
product other than StoresOnline's products, without prior written consent of
StoresOnline.
d. MALL DEVELOPMENT. StoresOnline shall develop the Malls in
accordance with the terms and conditions set forth herein and on the
Addendum. The Malls may be branded around Reseller's name, brand and image
and shall link to the Reseller's branded StoresOnline solution. The Malls
will include appropriate URL addresses, four to six featured products and
stores from various Reseller and third party advertisers, additional Reseller
and non-Reseller advertiser stores and products catalogued with text
references and links to top-tier eCommerce sites. The Mall will also include
an appropriate search engine, commerce functionality, banner and other
appropriate advertising space and such other features as the parties shall
mutually agree. The Mall will be capable of cataloguing stores independently
or in conjunction with all other Malls developed hereunder, if any, as well
as other malls which belong to the StoresOnline mall network.
2. TERMS OF AGREEMENT. The term of this Agreement shall commence as of
the execution hereof and continue for an initial term of one (1) year. Such
term shall automatically be extended for additional one-year terms thereafter
unless either party notifies the other, not less than thirty (30) days prior
to the expiration of this applicable term, of its intention not to renew the
Agreement.
a. Notwithstanding the foregoing, this Agreement may be terminated
in accordance with the provisions of Section 10.
b. Termination of this Agreement shall not relieve either party of
any obligations incurred prior to termination, including outstanding delivery
and payment obligations and other contractual commitments agreed to from time
to time in writing by an officer of StoresOnline. The obligation set forth
in Sections 3d,6b,8,10a,12c,12e,12f and 12h are expressly intended to survive
termination of this Agreement.
3. PRICES AND TAXES
a. PRICES FOR SERVICES. StoresOnline shall charge Reseller the
one-time Store Set-up Price set forth on the Addendum for each of Reseller's
customers. StoresOnline shall also charge Reseller the applicable Monthly Basic
Wholesale Price set forth on the Addendum.
b. PRICE ADJUSTMENTS FOR SERVICES. The prices for the Services are
subject to change by StoresOnline at any time, and shall become effective
ninety (90) days after written notification of such change to Reseller.
c. RETAIL PRICES FOR SERVICES. On or before the first day of each
month, Reseller shall provide StoresOnline with a list of the Reseller prices
charged for each class of Accounts or for each Account (as hereinafter
defined).
d. PRICES FOR MALL DEVELOPMENT. All prices for Mall design,
development and operation provided hereunder shall be as set forth on the
Addendum. It is anticipated that the Malls will generate multiple revenue
streams. Reseller and StoresOnline shall split the net revenue generated from
all such revenue sources on a [**REDACTED**] basis. Such revenue sources to
be split shall include, but are not limited to: (i) eCommerce advertisers
provided by StoresOnline, (ii) the pro rata share of Mall banner advertising
attributable to Reseller, (iii) click-through revenue from eTailer sales; and
(iv) revenue generated from featured product sales. The parties hereto shall
mutually agree to pricing in the event advertising space is sold on a
straight-buy basis.
e. TAXES. All prices for any services or products supplied
hereunder are exclusive of any federal, state or local sales, use, excise, AD
VALOREM or personal property taxes levied, or any fines, forfeitures or
penalties assessed in connection therewith, as a result of this Agreement or
the installation or use of services or products hereunder. Reseller or
Reseller's customer shall pay any and all such taxes, or StoresOnline may pay
such taxes for Reseller's account of Reseller's customer account, in which
case Reseller shall be obligated to reimburse StoresOnline for amounts so
paid. Any such taxes, duties or government imposed levies which are charged
to or payable by StoresOnline (exclusive of taxes based on StoresOnline's net
income) will be invoiced to and paid by Reseller in the manner set forth in
Section 6 below.
4. PROMOTION. StoresOnline shall provide Reseller with two thirty
second Mall promotional television commercials that Reseller shall cablecast
on its various cable systems a minimum of 1,000 times per broadcast month,
per market for the duration of the Agreement.
5. CUSTOMER ACCOUNTS
a. CUSTOMER ACCOUNT REGISTRATION PROCESS. The Services provided
hereunder include an online registration process that Reseller and its
customers will use to establish storefront accounts (the "Accounts"). In
order to establish an account, Reseller's customers must complete an on-line
registration process in accordance with the terms set forth on the
StoresOnline website. At the option of the customer, registration may also
be completed non-electronically. The general terms and conditions for the
use of Accounts shall be posted from time to time on the StoresOnline web
site, or in the event that StoresOnline establishes an electronic exchange for
Reseller such information will be posted on Reseller's exchange. The terms
and conditions as posted shall, in all events
and at all times, be binding upon the Reseller and its customers who
establish Accounts. The terms and conditions governing such Accounts may be
amended or canceled, from time to time, upon thirty (30) days prior
electronic notice to Reseller. To establish an Account, Reseller's customers
must provide credit card information and authorize the payment of fees for
Services on a monthly basis in advance.
b. CONTINUATION OF CUSTOMER ACCOUNTS. Continuation of each
customer Account is subject to the timely payment of the monthly fees
associated with such accounts, and failure to do so shall constitute grounds
for StoresOnline to cancel and terminate an Account.
6. BILLING AND PAYMENT TERMS.
a. INVOICING FOR SERVICES. Reseller may request that StoresOnline
invoice Reseller's customers directly. In such event, StoresOnline shall
electronically invoice Reseller's customers and directly charge against the
credit card accounts provided by such customers on a monthly basis for the
retail price of the Services charged by Reseller. All fees due under this
Agreement shall be paid in advance and are due on the first day of each
month. In preparing the invoices and charging against the applicable credit
cards, StoresOnline shall use the most recent Reseller retail prices provided
to StoresOnline by Reseller pursuant to Section 3c hereof for the Accounts
invoiced.
b. PAYMENT AND COLLECTION FOR SERVICES. Payments shall be made
through Reseller's customers' credit cards provided by Reseller's customers
for that purpose during the registration process. StoresOnline shall collect
the monthly fees set by Reseller from Reseller's customers and, after
deducting any monthly fees and expenses to which it is entitled hereunder,
shall remit the balance to Reseller on a monthly basis, together with a
statement setting forth the amounts collected, the amounts deducted and the
total amount remitted. In the event payment is not received by StoresOnline
within the specified time, an additional late charge of one and one half
percent (1.5%) of the past due amount will be accrued for each thirty (30)
days outstanding, prorated on a daily basis. All payments for Services shall
be made in United States dollars.
c. DIRECT RESELLER BILLING FOR SERVICES. In the event that
Reseller chooses to xxxx its customers directly for the Services, Reseller
shall remit directly to StoresOnline the applicable Monthly Wholesale Retail
Price (per storefront). All such fees shall be paid in advance and are due on
the first day of each month.
d. BILLING FOR MALL RELATED CHARGES; ADVERTISING AND RELATED
REVENUES. StoresOnline shall invoice Reseller indirectly for all charges due
hereunder in connection with the design development and operation of the
Malls, which charges shall be payable in full in advance. All revenues
generated from the Malls (including advertising and related revenues) which
are to required to be split between StoresOnline and Reseller pursuant to
paragraph 3(d) hereof shall be invoiced and collected by StoresOnline.
StoresOnline shall thereafter forward all amounts due, if any, to Reseller
(net 30 days) at the address provided on the signature page hereto.
7. REAL TIME PAYMENT PROCESSING. Real-time credit card processing shall
be available in accordance with the terms of this Section 7. In the event
that a customer wishes the StoresOnline real-time credit payment processing
option, such customer must establish a customer account with an FDIC network
bank and must open an account with a participating credit-card processor.
8. DISCLAIMER OF WARRANTIES AND LIMITATIONS OF LIABILITY.
a. DISCLAIMER OF WARRANTY. EXCEPT AS SPECIFICALLY PROVIDED HEREIN,
THERE ARE NO, AND STORESONLINE EXPRESSLY DENIES, REJECTS AND
DISCLAIMS ANY WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT
LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OR WARRANTIES OF THE CORRECTNESS, ACCURACY,
PRECISION, TIMELINESS OR COMPLETENESS OF ANY INFORMATION OR
SERVICES PROVIDED HEREUNDER.
b. LIMITATION OF LIABILITY. STORESONLINE, ITS DIRECTORS, OFFICERS,
AFFILIATES, EMPLOYEES AND AGENTS SHALL NOT BE LIABLE TO RESELLER
OR TO ANY THIRD PARTY FOR ANY LOSS OR DAMAGE, WHETHER DIRECT OR
INDIRECT, RESULTING FROM DELAYS OR INTERRUPTIONS OR SERVICE DUE
TO MECHANICAL, ELECTRICAL OR WIRE DEFECTS OR DIFFICULTIES,
STORMS, STRIKES, WALK-OUTS, EQUIPMENT OR SYSTEMS FAILURES, OR
OTHER CAUSES OVER WHICH STORESONLINE, ITS DIRECTORS, OFFICERS,
AFFILIATES, EMPLOYESS OR AGENTS AGAINST WHOM LIABILITY IS SOUGHT
HAVE NO REASONABLE CONTROL, OR FOR LOSS OR DAMAGE, DIRECT OR
INDIRECT, RESULTING FROM INACCURACIES, ERRONEOUS STATEMENTS,
ERRORS OF FACTS, OMISSIONS OR ERRORS IN THE TRANSMISSION OR
DELIVERY OF THE SERVICES, OR ANY DATA PROVIDED AS A PART OF THE
SERVICES PURSUANT TO THIS AGREEMENT, EXCEPT TO THE EXTENT CAUSED
BY THE NEGLIGENCE OR WILLFUL MISCONDUCT OF STORESONLINE. IN ALL
CASES ARISING FROM EVENTS OCCURRING DURING THE TERM OF THIS
AGREEMENT, WHETHER BASED UPON TORT, CONTRACT, WARRANTY,
INDEMNITY, CONTRIBUTION OR OTHERWISE, DAMAGES SHALL BE LIMITED
TO, AND RESELLER AGREES NOT TO MAKE ANY CLAIM OR CLAIMS
EXCEEDING TWENTY-FIVE THOUSAND DOLLARS ($25,000.00), REGARDLESS OF
HOW MANY CLAIMS RESELLER MAY HAVE. IN ADDITION, IN NO EVENT
SHALL STORESONLINE BE LIABLE TO RESELLER OR TO ANY THIRD PARTY
FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL LOSSES OR
DAMAGES WHICH RESELLER OR SUCH THIRD PARTY MAY INCUR OR
EXPERIENCE ON ACCOUNT OF ENTERING INTO OR RELYING ON THIS
AGREEMENT OR UTILIZING THE SERVICES, REGARDLESS OF WHETHER
STORESONLINE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES
OR WHETHER SUCH DAMAGES ARE CAUSED, IN WHOLE OR IN PART, BY THE
NEGLIGENCE OF STORESONLINE.
C. TIME FOR MAKING CLAIMS. ANY SUIT OR ACTION BY RESELLER AGAINST
STORESONLINE, ITS DIRECTORS, OFFICERS, AFFILIATES, EMPLOYEES,
AGENTS, SUCCESSORS OR ASSIGNS, BASED UPON ANY ACT OR OMISSION
ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR SERVICES
PERFORMED HEREUNDER, OR ANY ALLEGED BREACH THEREOF, SHALL BE
COMMENCED WITHIN TWO (2) YEARS OF THE FIRST OCCURRENCE GIVING
RISE TO SUCH CLAIM OR BE FOREVER BARRED. THIS PROVISION DOES NOT
MODIFY OR OTHERWISE AFFECT THE LIMITATION OF STORESONLINE'S
LIABILITY SET FORTH IN THIS PARAGRAPH 8 OR ELSEWHERE IN THIS
AGREEMENT.
d. DISCLAIMER. THE WARRANTIES AND CONDITIONS SET FORTH HEREIN AND
THE OBLIGATIONS AND LIABILITIES OF STORESONLINE HEREUNDER ARE IN
LIEU OF, AND BUYER HEREBY WAIVES, ALL EXPRESS AND IMPLIED
WARRANTIES AND CONDITIONS, INCLUDING, WITHOUT LIMITATION, THOSE
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OF
NONINFRINGEMENT. IN NO EVENT SHALL STORESONLINE'S LIABILITY FOR
ANY CLAIM ASSERTED BASED ON A VIOLATION OF WARRANTY OR CONDITION
EXCEED THE AMOUNT PAID BY RESELLER TO STORESONLINE FOR
THE AFFECTED ITEM OR SERVICES.
9. DOCUMENTATION AND TRAINING. Provided that Reseller has met the
minimum performance standards set forth elsewhere in this
Agreement, StoresOnline shall, on a semi-annual basis, provide
free-of-charge a one (1) day training program for employees
designated by Reseller at the StoresOnline corporate headquarters.
Additional training by StoresOnline shall be made available to
Reseller at StoresOnline's standard rates. All expenses of the
trainees under this Section 9 shall be borne by Reseller.
10. DEFAULT.
a. RESELLER'S DEFAULT. The failure by Reseller to make any payment
required hereunder or a material breach by Reseller of its obligations
hereunder shall constitute an event of default by Reseller. Upon the occurrence
of an event of default, StoresOnline shall provide Reseller with written
notice specifying the nature of such default. If Reseller has not cured such
default within thirty (30) days after receipt of such notice, StoresOnline
may, at its sole discretion, terminate this Agreement and/or seek any other
available remedies available at law or in equity, PROVIDED, HOWEVER, that the
cancellation of this Agreement shall not prevent Reseller from reselling the
Services (and sublicensing the software component thereof) previously paid
for by Reseller and sublicenses previously granted by Reseller pursuant
hereto shall not be affected by such termination.
b. STORESONLINE'S DEFAULT. A material breach by StoresOnline of its
obligations hereunder shall constitute an event of default by StoresOnline.
Upon the occurrence of an event of default by StoresOnline, Reseller shall
provide StoresOnline with written notice specifying the nature of such
default. If StoresOnline fails to cure such default, within thirty (30) days
after receipt of such notice, Reseller may, at its sole option, terminate
this Agreement.
c. INSOLVENCY. The commencement of any proceeding (voluntary of
involuntary) in bankruptcy or insolvency by or against either party hereto,
or the appointment (with or without the party's consent) of an assignee for
the benefit of creditors or a receiver with respect to either party hereto
shall constitute an event of default hereunder, and the non-defaulting party
may elect to terminate this Agreement immediately.
11. DISPUTE RESOLUTION.
a. It is the intent of the parties that all disputes arising under
this Agreement be resolved expeditiously, amicably, and at the level within
each party's organization that is more knowledgeable about the disputed
issue. The parties understand and agree that the procedures outlined in this
Paragraph 11 are not intended to supplant the routine handling of inquiries
and complaints through informal contact with customer service representatives
or other designated personnel of the parties. Accordingly, for purposes of
the procedures set forth in this paragraph, a "dispute" is a disagreement
that the parties have been unable to resolve by the normal and routine
channels ordinarily used for such matters. Before any dispute arising under
this Agreement, other than as provided in subparagraph e. below, may be
submitted to arbitration, the parties shall first follow the informal and
escalating procedures set forth below.
(1) The complaining party's representative will notify the other
party's representative in writing of the dispute, and the non-complaining
party will exercise good faith efforts to resolve the matter as expeditiously
as possible.
(2) In the event that such matter remains unresolved for thirty
(30) days after the delivery of the complaining party's written notice, a
senior representative of each party shall meet or confer within ten (10)
business days of a request for such a meeting or conference by either party
to resolve such matter.
(3) In the event that the meeting or conference specified in (2)
above does not resolve such matter, the senior officer of each party shall
meet or confer within ten (10) business days of the request for such a
meeting or conference by either party to discuss and agree upon a mutually
satisfactory resolution of such matter.
(4) If the parties are unable to reach a resolution of the
dispute after following the above procedure, or if either party fails to
participate when requested, the parties may proceed in accordance with
subparagraph b. below.
b. Except as provided in subparagraph e. below, any dispute arising
under this Agreement shall, after utilizing the procedures in subparagraph
a., be resolved by final and binding arbitration in Long Beach, California,
before a single arbitrator selected by, and in accordance with, the rules of
commercial arbitration of the American Arbitration Association. Each party
shall bear its own costs in the arbitration, including attorneys' fees, and
each party shall bear one-half of the cost of the arbitrator.
c. The arbitrator shall have the authority to award such damages as
are not prohibited by this Agreement and may, in addition and in a proper
case, declare rights and order specific performance, but only in accordance
with the terms of this Agreement.
d. Either party may supply to a court of general jurisdiction to
enforce an arbitrator's award, and if enforcement is ordered, the party
against which the order is issued shall pay the costs and expenses of the
other party in obtaining such order, including reasonable attorneys' fees.
e. Notwithstanding the provisions of subparagraphs a. and b. above,
any action by StoresOnline to enforce its rights under Paragraph 12e of this
Agreement or to enjoin any infringement of the same by Reseller may, at
StoresOnline's election, be commenced in the state or federal courts of
California, and Reseller consents to personal jurisdiction and venue in such
courts for such actions.
12. GENERAL.
a. ENTIRE AGREEMENT; AMENDMENT. This Agreement constitutes the
entire agreement between StoresOnline and Reseller and supersedes all
previous understandings, negotiations, and proposals, whether written or
oral. This Agreement may not by altered, amended or modified except by an
instrument in writing signed by duly authorized representatives of each
party. In the event that any one or more provisions contained in this
Agreement should for any reason be held to be unenforceable in any respect,
such unenforceability shall not affect any other provisions hereof, and this
Agreement shall by construed as if such unenforceable provision had not
been contained herein.
b. FORCE MAJEURE. Neither party shall be liable to the other for
delays or failures to perform an obligation to the other hereunder if such
delay or failure to perform is due to any act of God, acts of civil or
military authority, labor disputes, fire, riots, civil commotion's,
sabotage, war, embargo, blockage, floods, epidemics, delays in
transportation, inability beyond StoresOnline's reasonable control to obtain
necessary labor, materials or manufacturing facilities, or when due to
governmental restrictions, including the inability of StoresOnline to obtain
appropriate U.S. export license approval or the subsequent suspension of
same. In the event of any such delay or failure, the parties shall have an
additional period of time equal to the time lost by reason of the foregoing in
which to perform hereunder.
c. GOVERNING LAW. This Agreement shall be governed in all respects
by the laws of the State of California, without regard to principles of
choice of law.
d. ASSIGNMENT. Reseller shall not assign this Agreement or any
rights hereunder without the prior written consent of StoresOnline, which
consent shall not be unreasonably withheld. StoresOnline may assign this
Agreement to a subsidiary or affiliate corporation.
e. DISCLOSURE OF INFORMATION. Reseller acknowledges that, in the
course of purchasing Services and meeting its obligations under this
Agreement, it will obtain information relating to the Services and to
StoresOnline, which is of a confidential and proprietary nature
("StoresOnline Proprietary Information"). Such StoresOnline Proprietary
Information may include, but is not limited to, trade secrets, know-how,
inventions, techniques, processes, programs, schematics, data, customer
lists, financial information and sales and marketing plans.
Reseller shall at all times during the term of this Agreement and
for three years after its termination, keep in confidence and trust from any
person or entity all StoresOnline Proprietary Information and shall not
disclose or use such StoresOnline Proprietary Information without the prior
written consent of StoresOnline, unless compelled to disclose such
StoresOnline Proprietary Information by judicial or administrative process
(including, without limitation, in connection with obtaining the necessary
approvals of this Agreement and the transaction contemplated hereby of
governmental or regulatory authorities) or by other requirements of law. Upon
termination of this Agreement, Reseller shall promptly return to StoresOnline
all StoresOnline Proprietary Information under its control and all copies
thereof.
Neither party shall disclose the specific terms of this Agreement
to any third parties except as may be mutually agreed or as required by law
or the order of a court of competent jurisdiction.
The above limitations on disclosure of StoresOnline Proprietary
Information shall not apply to information which becomes publicly available
through no act of Reseller, is released by StoresOnline in writing with no
restrictions, is lawfully obtained by Reseller without breach of this
Agreement from third parties without obligations of confidentiality, is
previously known by Reseller without similar restrictions as shown by
documents in its possession prior to disclosure by StoresOnline or is
independently developed by Reseller.
f. COMPLIANCE WITH LAW. Reseller shall comply with all applicable
law including, without limitation, the export control laws of the United
States of America and prevailing regulations which may be issued from time to
time by the United States Department of Commerce and any export control
regulations of the United States and those countries involved in transactions
concerning the
exporting, importing and re-exporting of Services purchased under application
of these terms and conditions. Reseller shall also comply with the United
States Foreign Corrupt Practices Act and shall indemnity StoresOnline from
violations of such act by Reseller. This provision shall survive any
termination or expiration of the Agreement.
g. EXERCISE OF REMEDIES. Any delay or omission by either party to
exercise any right or remedy under this Agreement shall not be construed to
be a waiver of any such right or remedy or any other right or remedy
hereunder.
h. LIMITATION OF LIABILITY. NEITHER PARTY SHALL BE LIABLE TO THE
OTHER FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES DUE TO
FAILURE TO PERFORM ITS OBLIGATIONS HEREUNDER.
i. HEADINGS. Headings contained in this Agreement are for
convenience only, are not a part of this Agreement, and do not in anyway
interpret, limit or amplify the scope, extent or intent of this Agreement or
any of the provisions hereof.
j. REGULATORY APPROVAL. Reseller warrants that the Services and
the Malls, when utilized with its own products, will comply with all
applicable industry and governmental standards and requirements. StoresOnline
assumes no responsibility or liability for these governmental and regulatory
standards or requirements, which liability and responsibility is assumed
entirely by Reseller. Upon request, StoresOnline will provide copies of
regulatory approvals to Reseller.
k. BRANDING. StoresOnline shall have the right to place a "Powered
by Netgateway" or "Powered by StoresOnline" byline in a prominent manually
agreed upon location on each storefront site and on each Mall site.
l. PUBLICITY. StoresOnline (or its present company, Netgateway,
Inc.) shall have the right to inform its customers and the public that
StoresOnline has entered into this Agreement with Reseller. Each party may
use the other's name or the name of its customers in marketing the Services
and the development of the Malls and may link to each other's websites, but
neither party will perform any actions which will harm the other's or its
customers name and reputation.
m. NOTICES. Any notice required in connection with this Agreement
shall be given in writing and shall be deemed effective upon personal
delivery or three business days after deposit in the United States mail,
registered or certified, postage prepaid and addressed to the party entitled
to such notice at the address indicated below such party's signature line on
this Agreement or at such other address as such party may designate by ten
(10) days advance written notice to the other party. All facsimile notices
shall be confirmed by written notice mailed, as provided above, within five
(5) days of the date of the facsimile is sent. Once confirmed, the notice
shall be effective as of the date of the facsimile.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be
effective as of the date set forth herein.
XXXXXXXXXXXX.XXX INC., a California corporation
NETGATEWAY, INC., a Nevada corporation
By /s/ XXXXXX X. XXXXXXX, XX.
--------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
----------------------
Its:
----------------------
Address for Notices:
000 Xxxxxxxxx, Xxxxx 000
Xxxx Xxxxx, XX 00000
(000) 000-0000
/s/ XXXX XXXXXX
----------------
Name of Reseller
By /s/ FrontierVision
-------------------
Name: Xxxx Xxxxxx
-----------
Its:
-----------
Address:
Telephone:
Facsimile:
E-mail Address:
URL:
Technical Contact:
Telephone:
E-mail Address:
ADDENDUM
Name of Reseller FRONTIERVISION Description of Resellers
--------------- Business:
Type Entity: CABLE TELEVISION PROGRAMMING SERVICES
------------------- ----------------------------------------------
Date of Agreement: JULY 27, 1999
--------------- ----------------------------------------------
STANDARD FEATURE SET
Catalogs
- International Currencies
- Weight Units: Kilograms, Grams, Pounds and Ounces
- Sending Methods: Internet, Fax/Mail and Phone
- Faxed Internet Orders
- Payment Methods: VISA, MasterCard, American Express, Discover and JCB
- Custom Payment Methods
- Standard Shipping Destinations: United States, Canadian Provinces and World
Countries
- Custom Shipping Destinations
- Multiple Shipping Methods and Regions
- Shipping Formula Variables: Quantities Ordered, Weight and Subtotal
- Shipping Formula Functions: Minimum, Maximum and Range
- Custom Tax Rates
- Custom Survey Questions: Long Answer, Short Answer, Multiple Choice and
Single Choice
- Custom Subtotal Items: Fixed, User Enterable and Optional
- Users and Passwords
Categories
- Unlimited Categories
- Full Description
- Image
Products
- Base Item Number
- Description: Full Description
- Image
- Price
- Sale Price
- Unique Sale Price for Each Catalogue
- Non-Taxable Products
- Weight
- Category
- Multiple Products Options (i.e., Color, Size)
- Multiple Product Option Items (i.e., Red, Green, Blue)
- Custom Item Numbers based on Options
- Custom Pricing based on Options
- Option Conflicts
- Quantity Discounts
- Links to Related Items
- Links to other URL's
- Preview product pages
- Generated HTML code to copy and paste into existing sites
- Graphical pricing for easy integration into existing sites
- Import product information from a test-delimited file
Orders
- E-mail notification of new orders
- Order Status
- Waybill Number and Shipper
- Custom Notes
- End-user Order Tracking
- Export Order Information
StoresOnline Point of Sale
- Multiple Merchant Numbers
- Automatic authorization of orders sent over the Internet
- Manual Authorizations
- Credits
- Automatic Settlement
- Freeze and Thaw Transactions
StoresOnline Hosting
- Home Page Builder
- Unique URL
- 10 MB Free
- Virtual hosting of existing domain name
- Professionally designed templates
- Customize your own templates
StoresOnline Search
- Full Text Search Engine
- Full Word Listing
- Phrase or Boolean Searching
- Re-index your site anytime
- Integrate into existing sites
PRICING FOR STOREFRONT SERVICES
Up to 100 Products:
Monthly Base Wholesale Price: [**REDACTED**]
One Time Store Set-up Fee:
Up to 100 products
Base Wholesale Price: $[**REDACTED**]
Additional products may be preordered at [**REDACTED**] per product
Scanning [**REDACTED**] per image (First 10 images [**REDACTED**])
Optional store ????? / custom design work billed to merchant at standard
StoresOnline rates.
As a launch incentive, Reseller shall receive up to [**REDACTED**] Free Store
Set-Ups and the monthly wholesale price of [**REDACTED**] shall be waived
for 60 days following the Set-up of each Free Store for each new Frontiervision
market launching the service.
STANDARD LICENSE AGREEMENT TERMS
1. LICENSE. This license allows you to use any software associated
with the provision of the Services.
2. RESTRICTIONS. You may not use, copy, modify or transfer the
program, or any copy, modification or merged portion, in whole or in part,
except as expressly provided for in this License. If you transfer possession
of any copy, modification or merged portion of the program to another party,
your License is automatically terminated.
3. TERM. The License is effective until terminated. You may
terminate it at any other time by notifying Reseller of your intent to do
so. The License will also terminate upon the occurrence of certain events
set forth elsewhere in this Agreement. Upon such termination, you agree to
destroy the program together with all copies, modifications and merged
portions in any form.
4. EXPORT LAW ASSURANCES. You agree that neither the program nor
any direct product thereof is being or will be shipped, transferred or
re-exported, directly or indirectly, into any country prohibited by the US
Export Administration Act and the regulations thereunder or will be used for
any purpose prohibited by the Act.
5. LIMITED WARRANTY. The program is provided "as is" without
warranty of any kind, either expressed or implied, including, but not limited
to, the implied warranties of merchantability and fitness for a particular
purpose. The full text of the warranty is provided in the user manual.
6. LIMITED LIABILITY. In no event will StoresOnline be liable to
you for any damages, including any lost profits, lost savings or other
incidental or consequential damages arising out of the use or inability to
use such program even if StoresOnline has been advised of the possibility of
such damages, or for any claim by any other party.
7. GENERAL. If you are a Government end-user, this License conveys
only "Restricted Rights" and in its use, disclosure and duplication are
subject to Federal Acquisition Regulations, subparagraph (c) (1) (11)
52.227-7013. (See U.S. Government End-User provisions in manual.) This
License will be construed under the laws of the State of California, except
for that body of law dealing with conflicts of law. If any provision of the
License shall be held by a court of competent jurisdiction to be contrary to
law, that provision shall be enforced to the maximum extent permissible, and
the remaining provisions of this License shall remain in full force and effect.
MALL DEVELOPMENT SERVICES AND PRICES
1. DEVELOPMENT. StoresOnline shall design and develop one on-line
Mall, with links to local market malls, to be branded around Reseller's name,
brand and image. The Mall will be capable of cataloguing stores
independently or in conjunction with all other Malls developed hereunder, as
well as other malls which belong to the StoresOnline mall network.
2. PRICING.
The initial on-line Mall development fees shall be waived.
