CONFIDENTIAL TREATMENT REQUESTED BY xxxxxxxxxxxxxx.xxx inc.
Microsoft Confidential
ECOMMERCE MERCHANT
AGREEMENT FOR The Plaza on MSN
P R E A M B L E
The Microsoft Network, L.L.C., a Delaware limited liability company ("MSP"), by
and through its manager, Microsoft Corporation ("Microsoft"), agrees with the
undersigned ("Merchant") that the Merchant specified in the Schedule will be
offered a link mall service to "Merchant Site", xxx.xxxxxxxxxxxxxx.xxx, as part
of The Microsoft Network pursuant to the General Terms and all Exhibits and
Riders attached hereto. Terms not defined shall have the meanings ascribed to
them in the General Terms attached hereto.
S C H E D U L E
Merchant Name: XxxxxxxxxXxxxx.xxx Inc.
Entity Type (if incorporated, state place of incorporation): Delaware
Principal Place of Business (list state if in U.S.A.; list country if outside
U.S.A.):
Merchant Address
000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000
Address for Notices:
(000 Xxxxx Xxxxxx, XX 00000
Phone: Attention: Xxxx Xxxxxxxxx, Vice President, New Business Development
Facsimile Number: 000-000-0000
Email Address (xxxxxxxxxx@xx.xxx)
MSP SERVICES:
MSP will provide live link(s) from the Microsoft Web Site(s) as designated by
MSP in its sole discretion, to The Plaza on MSN on MSN's Premier Service. From
The Plaza on MSN on MSN's Premier Service, MSP will provide a link directly to
the Merchant Web Site.
***Confidential portions of this document have been redacted and have been
separately filed with the Commission.
CONFIDENTIAL TREATMENT REQUESTED BY xxxxxxxxxxxxxx.xxx inc.
Microsoft Confidential
Merchant SERVICES:
Merchants co-branded URL: xxxx://xxx.xxxxxxxxxxxxxx.xxx
Merchants e-mail address for Customer Service to the co-branded site: (your
customer service e-mail address here)
Merchant.
Merchant shall deliver via e-mail to MSP within seven (7) days after the last
day of each week an accounting setting forth the amount of Gross Revenue,
the basis of the calculation thereof, the amount of commission payable, if
any, for such period and sales/title tracking information (which shall
include a tracking mechanism that determines through which Microsoft Web
Site a Microsoft customers has obtained access to the Merchant site, in
addition to Monthly User information which must include at a minimum:
o Traffic by referring web link
o Number of page views
o Number of unique users)
In addition, Merchant will supply MSP with a password, beginning December 1,
1997, which will enable MSP to enter a password protected area on the Merchant
Site and obtain MSP's accounting statistics as of a recent date.
In addition, within thirty (30) days after the end of each three-month
anniversary of the date of execution of this Agreement, Merchant will provide
MSP with a statement of activity containing information similar in nature to
that described in the clause above.
Merchant will maintain sole responsibility for all costs for Merchant Site
development, management, tracking, support, and maintenance. Merchant will
ensure that the site content is refreshed as appropriate on a regular basis.
Merchant will make every reasonable effort to ensure that site is "live" for
all customers. MSP will maintain sole responsibility for all costs for The
Plaza on MSN's Premier Service, including development, management, support, and
maintenance.
Merchant is solely responsible for product quality, product availability,
product fulfillment and customer service for all Products and or services
offered and/or sold on the Merchant Site. MSP acts as a link operator only, and
will provide marketing support only as noted in this contract under Special
Provisions.
Fees:
Guaranteed Fee: During the Term Merchant shall pay * * * to MSP no later than
the 5th day of each month. Xxxxxxxx is responsible for ensuring that all
payments are made on a timely basis, MSP will not invoice Merchant for any
amounts owing pursuant to this Agreement
Commission: In addition to the Guaranteed Fee, Merchant shall pay MSP * * * of
Merchant's Gross Revenue less actual returns and actual bad debt incurred
during the applicable period. Each * * * period (based on the anniversary date
of execution of this Agreement) Merchant shall be entitled to * * * (or the
equivalent of * * * ) of the Guaranteed Fee applicable to * * * period from any
Commissions owing to MSP for the applicable * * * period. The Commission shall
be payable monthly to MSP no later than 30 days after each three-month period
on the anniversary of signing this Agreement for all transactions occurring
during the previous quarter. All payments of the Fees must be in a form
acceptable to MSP, in its sole discretion, and addressed to Xxxxxxx Xxxxxxxx,
c/o Microsoft Corporation, Xxx Xxxxxxxxx Xxx, Xxxxxxx, XX 00000
***Confidential portions of this document have been redacted and have been
separately filed with the Commission.
CONFIDENTIAL TREATMENT REQUESTED BY xxxxxxxxxxxxxx.xxx inc.
Microsoft Confidential
Term end Date: Renewal Options (if any): Both parties
June 30, 1998 reserve the right to negotiate contract
renewal. Either party may elect to
terminate this Agreement in writing at
Term Start Date: any time, but not less than 60 days'
15 October 1997 notice to the other party.
***Confidential portions of this document have been redacted and have been
separately filed with the Commission.
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CONFIDENTIAL TREATMENT REQUESTED BY xxxxxxxxxxxxxx.xxx inc.
Microsoft Confidential
Special Provisions (if any):
Merchant will provide the following:
o Electronic mail capabilities between the customer and Merchant and customer
service standards & practices at a level at least as high as that of the
electronic commerce industry to all customers.
o Information regarding Merchant promotions, upon MSP's request for such
information and Merchant's agreement to so deliver, to be used by MSP, in its
sole discretion, in the pre-programed Daily Specials area of The Plaza on MSN on
MSN's Premier Service, as per specifications provided by MSP. Promotional
activities are subject to change based on business and technology requirements
as seen by MSP; provided that no changes shall be made to the promotional
information provided by Merchant to MSP, without Merchant's prior approval,
which shall not be unreasonably withheld. MSP makes no claims or guarantees of
level of promotional activities.
o Merchant agrees to comply with MSP Logo Policies as detailed in Exhibit A.
o The Plaza on MSN on MSN's Premier Service's "GO BACK to The Plaza" button or
similar reverse link agreed upon by both parties - to be used for linking from
the Merchant site back to The Plaza on MSN on MSN Premier Service at
xxx.xxxxx.xxx.xxx. This link will be available on Merchant site no later than
January 1, 1998.
o Provide MSP with technical specification for reverse link as referenced above,
as well as insertion of reverse links on every page of Merchant site if Customer
has come from any Microsoft Site.
MSP will provide the following:
o The Plaza on MSN on MSN's Premier Service's "GO BACK to The Plaza" button or
similar reverse link agreed upon by both parties - to be used for linking from
the Merchant site back to The Plaza on MSN on MSN Premier Service at
xxx.xxxxx.xxx.xxx. This will be determined by MSP in its sole discretion, and
will be available on Merchant site no later than January 1,1998.
o Merchandising calendar and plan based on retail holidays, for the purpose of
product promotional planning with Merchant.
o Reasonable efforts to ensure that The Plaza on MSN on MSN's Premier Service
tenants are of high quality and stature in their respective industries.
o MSP Policies as Exhibit A.
o Provided that Merchant's Site is fully functional and all other aspects
necessary to link between The Plaza on MSN on MSN's Premier Service and such
Merchant Site are completed no later than 15 October 1997 then MSP shall ensure
that no bookseller-only merchant shall be included in The Plaza on MSN on MSN's
Premier Service during the Term. General "bookseller" shall mean any bookseller
excluding specialty booksellers and/or Merchants whose primary business is not
selling books, but may sell books as a part of their total product offering.
o Merchant's position and treatment (logo, name, or button, as appropriate) on
The Plaza on MSN on MSN's Premier Service home page will be in a prominent
position, continuously and throughout the term of this Agreement.
MSP disclaims any implied warrants, promises, or guarantees of site traffic to
Merchants, number of unique users/consumers, Merchant product promotion
rotation, or industry-specific exclusivity. Merchant disclaims any implied
warranties, promises, or guarantees of commissions (other than the Guaranteed
Fee) payable to MSP hereunder.
E N D O F S C H E D U L E
THIS AGREEMENT CONSISTS OF THE PREAMBLE, THE SCHEDULE, THE GENERAL TERMS, AND
ALL ATTACHED RIDERS AND EXHIBITS THAT ARE SIGNED ON BEHALF OF BOTH MSP AND
Merchant.
THE MICROSOFT NETWORK, L.L.C. ("MSP"), XxxxxxxxxXxxxx.xxx Inc.
by and through its manger, ("Merchant")
MICROSOFT CORPORATION
("Microsoft")
By (signature) /s/X. Xxxxxxxx By (signature) /s/Xxxx X. Xxxxxxxxx, VP
---------------------- ------------------------
Name X. Xxxxxxxx Name Xxxx Xxxxxxxxx
------------------------------ --------------------------------
Title Business Manager, The Plaza Title Vice President-New Business Development
------------------------------ ---------------------------------------
Date: 10/27/97 Date:
***Confidential portions of this document have been redacted and have been
separately filed with the Commission.
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CONFIDENTIAL TREATMENT REQUESTED BY xxxxxxxxxxxxxx.xxx inc.
Microsoft Confidential
GENERAL TERMS
1. Definitions. As used herein, the following terms are defined and used in this
Agreement as follows:
1.1 Affiliate. When used in reference to either party, any company or entity
which controls, or is controlled by, or is under common control with such party.
1.2 Gross Revenue. The aggregate of all kinds of consideration, including,
but not limited to, cash, barter and any other in-kind consideration, received
by Merchant or any other party on behalf of Merchant for purchases initiated at
The Plaza on MSN on MSN's Premier Service, any Microsoft Web Site, the MSN
Transition Page or the Mirrored Web Site.
1.3 Microsoft Web Sites. Web sites operated by or affiliated with MSP which
may include, at MSP's sole discretion for the purposes hereof, MSN Premier
Service, MSNBC, xxx.xxx, xxxx.xxxxxxxxx.xxx and/or other services as they become
available.
1.4 MSN. The Microsoft Network online service, operating on open Microsoft
and/or internet-based platforms, including, without limitation, (a) xxx.xxx.xxx
and related Web Sites (which may include those managed by third parties and
those based overseas by MSP or Microsoft), and (b) MSN-branded Web pages that
are part of a third party's Web Site.
1.5 Plaza Tenant. Each Web Site operator participating in The Plaza on MSN on
MSN's Premier Service.
1.6 The Plaza on MSN on MSN's Premier Service. The MSN service referred to as
"The Plaza on MSN on MSN's Premier Service on MSN" or by such other name as MSP
may determine in its sole discretion (as solely branded by MSP or co-branded
with its sponsors) in which goods and services from Plaza Tenants are offered
for purchase.
1.7 Product. Any product or service sold or otherwise provided by Merchant to
a customer or internet user during access by such customer or internet user to
the Merchant Site by means of The Plaza on MSN on MSN's Premier Service, or any
other Microsoft Web Site.
1.8 Web (and related terms). That part of the Internet known as the World
Wide Web, containing, inter alia, pages written in hypertext markup language
(HTML). A "Web page" is a document on the Web which has a distinct URL address.
A "Web Site" is a collection of inter-related Web pages.
1.9 Net Sales. Gross Revenue less amounts collected by Merchant for sales
taxes, duties, gift wrapping, shipping, handling, and similar charges, amounts
due to credit card fraud and bad debt and credits for returned goods. All
available books on the Merchant Site will be included in the computation of Net
Sales, regardless of whether the book is a Fast Delivery or a Special Order
item.
2. Term. Subject to extension (if an option or renewal period is specified in
the Schedule), the period during which transactions on the Merchant Site will be
offered as part of The Plaza on MSN on MSN's Premier Service ("Term") begins on
the Start Date and ends on the End Date, as specified in the Schedule. Either
party may elect to terminate this Agreement at any time, upon not less than 60
days' notice to the other party.
3. Merchant Obligations.
3.1 Generally. Merchant will enable access to the Merchant Site throughout
the Term. The Merchant will monitor all sales and other activity in the Merchant
Site to verify ongoing operation of the Merchant Site and its capacity to track
customers and/or Internet users accessing the Merchant Site by means of The
Plaza on MSN on MSN's Premier Service. Merchant will ensure that customers and
Internet users are timely advised of their purchases and will, for audit
purposes only, provide MSP with electronic copies.
3.2 No Exclusivity. The Merchant Site is not exclusive to MSN; that is, at
all times during the Term, the Merchant Site may offer any Internet users the
right and/or ability to purchase Products at the Merchant Site by any means.
4. MSP Obligations.
4.1 Operation of The Plaza on MSN on MSN's Premier Service. Throughout the
Term, MSP will operate The Plaza on MSN on MSN's Premier Service in accordance
with the terms of this Agreement. The quantity, identity and mix of Plaza
Tenants shall be determined by MSP in its sole discretion.
5. Promotion and Marketing.
5.1 Generally. MSP and Merchant will cooperate in promotional, advertising
and marketing activities in connection with the availability of the Merchant
Site as the parties may mutually deem advisable. All such activities as
undertaken by either party will comply with applicable laws and regulations.
5.2 Use of Materials. (a) Subject to Xxxxxxxx's prior written approval, which
shall not be unreasonably withheld, MSP may use the name and logo of the
Merchant Site (as provided in Section 15) in promoting, advertising and
marketing The Plaza on MSN on MSN's Premier Service, provided that references to
***Confidential portions of this document have been redacted and have been
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CONFIDENTIAL TREATMENT REQUESTED BY xxxxxxxxxxxxxx.xxx inc.
Microsoft Confidential
Merchant and/or the Merchant Site and use of Merchant and/or Merchant Site logos
will be in compliance with Section 15 and be less prominent than references to
The Plaza on MSN on MSN's Premier Service and/or use of MSN logos or screen
shots. Provided that Merchant provides MSP with not less than three current,
preapproved screen shots of the Merchant Site, MSP's use of other screen shots
from the Merchant Site in MSN marketing for The Plaza on MSN on MSN's Premier
Service will be subject to Xxxxxxxx's prior written approval. All requests for
Xxxxxxxx's approval shall be deemed approved if Merchant fails to respond to any
request by MSP under this paragraph within 5 business days. Merchant will use
its best efforts to use the materials in accordance with MSP's policies. MSP
will provide Merchant with such policies as they are amended from time to time.
All approvals expire upon expiration of this contract.
(b) Subject to MSP's written approval, which will not be unreasonably withheld,
Xxxxxxxx may use MSN's name and logo, and MSN-furnished marketing materials,
provided that all such use will be in compliance with Section 15 and MSP
policies. Xxxxxxxx agrees to use MSN-furnished marketing materials solely for
the purpose of promoting, advertising and marketing the availability of the
Merchant Site on The Plaza on MSN on MSN's Premier Service. Merchant may not use
screen shots of MSN areas or sites outside the Merchant Site for any purpose.
All requests for MSP's approval shall be deemed approved if MSP fails to respond
to any request by Merchant under this paragraph within 5 business days. Merchant
will use its best efforts to use the materials in accordance with MSP's
policies; provided that MSP furnishes to Merchant such policies as they are
amended from time to time. All approvals expire upon expiration of this
contract.
6. Sponsorship and Advertising. MSP may include paid advertising, consisting of
Web link banners, in The Plaza on MSN on MSN's Premier Service. MSP may also
designate sponsors of all or any portion of The Plaza on MSN on MSN's Premier
Service as it deems advisable.
7. Product Transactions.
7.1 MSP will be entitled to the fee(s) specified in the Schedule.
7.2 Statements. Refer to applicable terms of Schedule.
(a) MSP may, at its expense, cause an audit to be made of the applicable
records in order to verify statements issued by Merchant. Such audit shall be
conducted upon no less than 5 days advance notice to Merchant during regular
business hours at Merchant's offices and in such a manner as not to interfere
with Merchant's normal business activities. Such audits shall be made no more
often than once every twelve (12) months during the Term and for a period of two
(2) years following the end of the Term. If an audit reveals that Merchant has
under-paid MSP by ten percent (10%) or more of the amounts due for any audited
period of time, Merchant agrees, in addition to recomputing and making immediate
payment to MSP of all amounts due, plus interest at the highest prime rate set
forth from time to time in the Wall Street Journal in the United States plus two
percentage points (or, if less, at a rate equal to the highest rate permitted
under applicable law), based on the actual and true amounts due and owing, to
pay MSP all reasonable costs and expenses incurred by MSP in conducting such
audit, including, but not limited to, any amounts paid to any auditor or
attorney. MSP shall have the right to audit a Merchant's site for accuracy of
site traffic and customer transactions.
7.3 Taxes. Merchant acknowledges and agrees that MSP has no responsibility
with respect to tax billing or collecting relating to sales made and/or charges
assessed to customers or other internet users accessing the Merchant Site by
means of The Plaza on MSN on MSN's Premier Service or any other Microsoft Web
Site.
8. Hosting. Merchant is solely responsible for hosting of the Merchant Site
(including the MSN Transition Page) and MSP is solely responsible for hosting of
all programs, content, pages and materials comprising The Plaza on MSN on MSN's
Premier Service.
9. Tracking.
9.1 Generally. Merchant agrees to (a) use usage tracking tools that can
provide MSP the specified tracking information and resources to enable
assessment and verification of data relating to Merchant Site usage by means of
The Plaza on MSN on MSN's Premier Service, (b) provide access to MSP to log
files relating to Merchant Site usage by means of The Plaza on MSN on MSN's
Premier Service, delivered and formatted in a manner reasonably specified by
MSP, and (c) follow such other directions and procedures as are reasonably
determined to be necessary by MSP to enable resolution of customer and/or
internet user support issues relating to usage of the Merchant Site by means of
The Plaza on MSN on MSN's Premier Service.
10. Confidentiality. Neither party will use or disclose to any third party, any
confidential information of the non-disclosing party. As used herein, the term
***Confidential portions of this document have been redacted and have been
separately filed with the Commission.
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CONFIDENTIAL TREATMENT REQUESTED BY xxxxxxxxxxxxxx.xxx inc.
Microsoft Confidential
"confidential information" means all non-public information that a party
designates as being confidential, or which, under the circumstances of
disclosure ought to be treated as confidential including but not limited to the
terms of this Agreement, know-how and materials provided pursuant to this
Agreement, provided that either party may disclose the terms of this Agreement
in confidence to its immediate legal and financial consultants and advisors as
required in the ordinary course of such party's business, provided that such
immediate legal and financial consultants and advisors agree in advance to be
bound by the confidentiality provisions set forth in this Section 10. All
tangible materials containing Confidential Information ("Confidential
Materials"), including documents, tapes, computer disks and other fixed storage
devices (whether or not machine or user readable), are the properly of the
providing party. No later than 15 business days following the End Date,
Confidential Materials in either party's possession must be resumed or
destroyed (with appropriate certification of destruction if not returned). This
Section 10 will survive any suspension, termination or expiration of this
Agreement. Subject to the prior written approval of the other Party, either
Party may use the name of such other Party in press release or public
announcement(s) relating to the rights and obligations set forth in this
Agreement and/or the relationship established by this Agreement; provided that
neither Party shall issue any such press release or make any such public
announcement(s) without the express prior written consent of the other Party.
11. Warranties.
11.1 By Xxxxxxxx. Merchant warrants, represents and agrees that (a) Products
offered, sold or otherwise provided as part of the Merchant Site are made,
offered, sold or otherwise provided in compliance with applicable laws and will
not infringe the copyrights, trademarks, service marks or any other proprietary
right of any third party, (b) Merchant will use its best efforts to ensure that
the operation of the Merchant Site is in compliance with MSP's policies,
procedures and/or technical specifications which may be provided by MSP from
time to time during the Term and all applicable laws, and (c) Merchant has the
power and authority to enter into and perform its obligations under this
Agreement.
11.2 By MSP. MSP warrants, represents and agrees that MSP has the power and
authority to enter into and perform its obligations under this Agreement.
11.3 Each Party represents and warrants to the other Party that: (i) such
Party has the full corporate right, power and authority to enter into this
Agreement and to perform the acts required of it hereunder; (ii) the execution
of this Agreement by such Party, and the performance by such Party of its
obligations and duties hereunder, do not and will not violate any agreement to
which such Party is a party or by which it is otherwise bound; and (iii) when
executed and delivered by such Party, this Agreement will constitute the legal,
valid and binding obligation of such Party, enforceable against such Party in
accordance with its terms.
11.4 No Additional Warranties. THIS SECTION 11 CONTAINS THE ONLY WARRANTIES
MADE BY MERCHANT AND MSP. ANY AND ALL OTHER WARRANTIES, INCLUDING FOR
NON-INFRINGEMENT AND THE OPERATION, FUNCTIONALITY, INTERRUPTION OR LACK OF
RESOURCES OF MSN OR THE MERCHANT SITE, ARE EXPRESSLY EXCLUDED AND DECLINED. EACH
PARTY DISCLAIMS ANY IMPLIED WARRANTIES, PROMISES AND CONDITIONS OF
MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE, WHETHER AS TO MSN OR
THE MERCHANT SITE, THE TECHNOLOGY DEPLOYED IN CONNECTION THEREWITH, OR PRODUCTS
OR SERVICES OFFERED AND/OR SOLD IN CONNECTION THEREWITH.
11.5 Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY IS
LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL,
INCIDENTAL OR PUNITIVE DAMAGES INCURRED BY THE OTHER PARTY EVEN IF THE OTHER
PARTY HAS BEEN ADVISED THAT SUCH DAMAGES ARE POSSIBLE.
11.6 Survival. Each party's representations and warranties survive the
termination of this Agreement.
12. Indemnification.
12.1 Scope of Obligation. Each party will indemnify and hold harmless the
other party, and the other party's Affiliates, from and against any claims,
actions, losses, liabilities, damages, settlements, judgments, arbitration
awards, costs and expenses (including reasonable outside attorneys' fees and
expenses) (collectively "Claims") resulting from such party's breach (or, with
respect to the defense thereof, alleged breach) of its covenants, warranties and
representations as set forth in this Agreement or resulting from either party's
approved use of materials obtained from the other party hereunder (including,
without limitation, logos, trademarks or trademarks of the other party) which
infringes the trademark or copyright or other proprietary rights of any third
party; provided, however, that neither party shall be obligated to indemnify the
other party for claims arising
***Confidential portions of this document have been redacted and have been
separately filed with the Commission.
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CONFIDENTIAL TREATMENT REQUESTED BY xxxxxxxxxxxxxx.xxx inc.
Microsoft Confidential
out of use of materials created by third party users of the Microsoft Web Sites
or the Merchant Site, as the case may be. For purposes hereof, Xxxxxxxx's
indemnity obligation hereunder extends equally to MSP and Microsoft.
12.2 Manner of Exercise. If a party requests to be indemnified ("requesting
party"), it must give prompt notice to the other party ("requested party")
specifying all relevant details of the Claim. The requested party may, at its
option, defend the Claim, in which event the requesting party will cooperate
fully and may participate in such defense with counsel of its own choice,
provided that it will be responsible for all expenses relating to such separate
counsel. If the requested party assumes the defense of a Claim, its obligation
will be limited to paying the attorneys' fees, costs and expenses associated
with such defense (except as otherwise expressly provided herein) and holding
harmless the requesting party from and against any judgment paid on account of
such Claim or monetary settlement the requested party has made (with the
requesting party's approval, not to be unreasonably withheld) or approved. The
requesting party may, if needed or desired, join the requested party as a party
in any litigation in respect of a Claim for which indemnity is requested. No
settlement may be made without the requested party's prior approval. Neither
party is responsible for loss of profits or consequential damages incurred by
the other due to a Claim. If either party fails to fulfill its material
obligations, the other party will be deemed excused from its obligations
pursuant to Section 12.1.
12.3 Survival. This Section 12 will survive any suspension, termination or
expiration of this Agreement.
13. Default and Breach.
13.1 Events of Default. After giving notice to the defaulting party and
following the completion of the applicable cure period set forth in Section
13.2, the nondefaulting party may declare the other party to be in breach of
this Agreement and may exercise the remedies specified in Section 13.3 upon the
occurrence of any of the following default events:
(a) failure to perform or comply with any material provision of this
Agreement, including without limitation either party's failure to file or
provide required statements and/or make payments due;
(b) admission in writing of an inability to pay debts as they mature, or
making an assignment for the benefit of creditors;
(c) impairment of financial condition such that the other party has
justifiable grounds to believe and can reasonably demonstrate that the impaired
party will be unable to fulfill its obligations under this Agreement; or
(d) filing of a petition under any bankruptcy act, receivership statute
or similar law or statute, by either party, or the filing of such a petition by
any third party against either party, or the making of an application for a
receiver by either party, where such petition or application is not dismissed or
otherwise favorably resolved within 60 days.
13.2 Cure Period. (a) Subject to Section 13.2(b), upon receiving a default
notice, the defaulting party will have 15 business days to cure the default,
provided that if the default is not reasonably susceptible of cure within such
period, the non-defaulting party's right to exercise the remedies specified in
Section 13.3 will be suspended for so long as the other party diligently pursues
all reasonable steps to cure as expeditiously as possible. Notwithstanding the
foregoing, such suspension (i) will not arise for default events that are
incapable of cure, and (ii) may nonetheless result in early termination of this
Agreement upon notice given by the non-defaulting party if cure is uncompleted
after 90 days.
(b) Notwithstanding Section 13.2(a), (i) the non-payment of monies due
must always be cured within the 15-business day cure period. and (ii) unless
both parties otherwise expressly agrees in writing, there shall be a 48-hour
cure period with respect to the operation of the Merchant Site in accordance
with MSP's published policies, procedures and technical specifications, and in
compliance with applicable laws.
13.3 Remedies. If either party fails to timely cure an event of default (if
cure is authorized pursuant to Section 13.2), subject only to Section 16.3, the
nondefaulting party will have the right to declare the other party in breach of
this Agreement and suspend performance or, alternatively, terminate this
Agreement upon notice, whereupon the non-defaulting party's obligations will
immediately cease. The non-defaulting party's rights are cumulative and not in
lieu of any other rights and remedies under this Agreement or otherwise provided
by law or in equity. Upon suspension or termination, neither party will hold
itself out as having rights or powers pursuant to this Agreement (except in
respect of provisions of this Agreement that survives suspension or
termination). Time is of the essence of this Agreement.
14. Notices. All notices given hereunder must be in writing and personally
delivered, or sent by registered or certified mail (return receipt requested),
facsimile, email or overnight courier. A notice sent by facsimile or email must
be confirmed by sending a copy of such notice by
***Confidential portions of this document have been redacted and have been
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CONFIDENTIAL TREATMENT REQUESTED BY xxxxxxxxxxxxxx.xxx inc.
Microsoft Confidential
registered or certified mail or overnight courier. Notices will be deemed given
on the date received. Notices to MSP must be sent to Xxx Xxxxxxxxx Xxx, Xxxxxxx,
XX 00000-0000 XXX (facsimile number (000) 000-0000), Attention: Director,
Business Development. Notices to Merchant must be sent to the address for
notices specified in the Schedule. Either party may change its address for
notices at any time by giving notice to the other party as provided herein.
15. Intellectual Property. Each party will use the appropriate trademark,
product description and trademark symbol (either "TM" or "Registered") and
copyright symbol (Copyright), and clearly indicate ownership of trademarks,
trade names and/or product names ("Marks") and copyrights, whenever first
mentioned in any advertisement, brochure or other material in connection with
MSN or the Merchant Site. Each party will, upon request, provide the other party
with samples of marketing literature that include the other party's Marks or
copyrights. Each party agrees that, as between the parties, (a) the other
party's Marks and copyrights and the good will associated therewith are and will
remain the sole property of the other party; (b) this Agreement does not confer
in either party any right of ownership in the other party's Marks or copyrights;
(c) all uses by one party of the other party's Marks and/or copyrights will
inure to the benefit of the owning party; and (d) when using the other party's
materials, if any such materials contain copyright, patent, trademark or other
notices evidencing the other party's ownership of rights in intellectual
property, the using party will not delete, modify, remove or diminish the
prominence of any such notices.
16. Other Provisions.
16.1 No Ongoing Waiver. No waiver of any breach of any provision of this
Agreement constitutes a waiver of any prior, concurrent or subsequent breach of
the same or any other provisions, and will not be effective unless made in
writing and signed by an authorized representative of the waiving party.
16.2 Excuse. Neither party is liable for, and will not be considered in
default or breach of this Agreement on account of, any delay or failure to
perform as required by this Agreement as a result of causes or conditions beyond
such party's reasonable control which such party is unable to overcome by the
exercise of reasonable diligence, provided that the affected party will use
reasonable efforts to resume normal performance as promptly as possible.
16.3 Dispute Resolution. If a dispute arises hereunder, upon either party's
written request (containing a statement specifying the basis of the dispute),
the parties will each appoint a senior representative to attempt in good faith
to resolve the dispute. Except for disputes where preliminary injunctive relief
is an appropriate remedy, no formal legal proceedings may be commenced with
respect to any dispute until either party determines in good faith (but no
earlier than five business days following the initiation of discussion) that
amicable resolution through continued negotiation appears unlikely.
16.4 Governing Law; Venue; Attorneys' Fees. This Agreement is governed by the
laws of the State of Washington, U.S.A. All actions, proceedings or litigation
relating hereto will be instituted and prosecuted solely within King County,
State of Washington, U.S.A. MSP and Merchant hereby consent to the jurisdiction
of the state courts of Washington and the federal courts located within such
state with respect to any action, dispute or other matter arising out of or
relating to this Agreement. In any legal proceeding between the parties relating
to the enforcement of any rights arising out of or relating to this Agreement,
the primarily prevailing party will be entitled to recover its reasonable
attorneys' fees and court costs.
16.5 Riders, Schedules, and Exhibits. All Riders, Schedules, and Exhibits
attached to this Agreement that are contemporaneously signed on behalf of both
parties are incorporated herein by this reference.
16.6 Assignment; Transfer of Control. (a) This Agreement may not be assigned,
by operation of law or otherwise, by either party without the other party's
prior written consent. Notwithstanding the foregoing, any assignment of this
Agreement to a person or entity acquiring all or substantially all of the assets
of either party where such assignment results in the transfer of management or
control or significant ownership interest in either party will give the
non-assigning party the right to terminate this Agreement as provided in Section
16.6(b). In any assignment proposed, the proposed assignee must agree in writing
to be bound by the terms of this Agreement. Any assignment contrary to this
Section 16.6(a) will be void and of no effect.
(b) In the event of the anticipated sale or transfer of management or
control of (or a significant ownership interest in) either party ("Transfer"),
assigning party will give notice to the non-assigning party of such Transfer
(including the proposed transferee) not less than 30 days prior to the effective
date of such Transfer (if such Transfer is voluntary) or as soon as possible
after the Transfer (if such Transfer is involuntary). Upon the occurrence of a
Transfer, the non-assigning party may elect to terminate this Agreement. The
non-assigning
***Confidential portions of this document have been redacted and have been
separately filed with the Commission.
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CONFIDENTIAL TREATMENT REQUESTED BY xxxxxxxxxxxxxx.xxx inc.
Microsoft Confidential
party must give notice to the assigning party of the non-assigning party's
election to terminate this Agreement due to the Transfer within 15 business days
after the later of the following dates: (i) the date on which the non-assigning
party ascertains the occurrence of the Transfer, or (ii) the date on which the
non-assigning party receives the assigning party's notice of such Transfer.
(c) Neither party will pledge or hypothecate its rights or delegate its
obligations under this Agreement except as part of a permitted assignment of
rights.
16.7 Relationship of Parties. This Agreement does not create or constitute a
partnership, joint venture or agency relationship or the grant of a franchise as
defined in the Washington Franchise Investment Protection Act, RCW 19.100, as
amended, or 16 CFR Section 436.2 or otherwise.
16.8 Section Headings. Headings and captions used in this Agreement
(including attached Riders and Exhibits) are for convenience only and do not
supersede or modify any provisions.
16.9 Amendments. This Agreement may only be amended by a written instrument
duly signed by authorized representatives of both MSP and Xxxxxxxx.
16.10 Third Party Enforcement. Xxxxxxxx agrees that its obligations under
this Agreement may be enforced by or on behalf of any Affiliate of MSP.
16.11 Meaning of "purchase" or "sale". As used herein, a "purchase" or "sale"
includes a license and/or a licensing arrangement; where applicable, use of such
terminology will not be deemed to waive, impair, or otherwise affect the
intellectual property rights of MSP, Microsoft or Merchant.
16.12 This Agreement shall not be modified except by a written agreement
dated subsequent to the date of this Agreement and signed on behalf of Xxxxxxxx
and MSP by their respective duly authorized representatives.
16.13 If any provision of this Agreement shall be held by a court of
competent jurisdiction to be illegal, invalid or unenforceable, the remaining
provisions shall remain in full force and effect.
17. Entire Agreement. This Agreement embodies the entire agreement between the
parties and supersedes all previous and contemporaneous agreements,
understandings and arrangements with respect to the subject matter hereof,
whether oral or written. Independent Investigation. Both parties acknowledge
that they have read this Agreement and agree to all its terms and conditions.
Both parties understand that they may at any time (directly or indirectly)
solicit customer referrals and enter into agreements with other entities on
terms that may differ from those contained in this Agreement. It is further
understood that both parties may operate web sites that are similar to or
compete with each others web sites. Both parties agree that they are not relying
on any representation, guarantee or statement other than set forth in this
Agreement.
***Confidential portions of this document have been redacted and have been
separately filed with the Commission.
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CONFIDENTIAL TREATMENT REQUESTED BY xxxxxxxxxxxxxx.xxx inc.
Microsoft Confidential
Revised: 8/27/1997
EXHIBIT A
MSP Policies
GUIDELINES FOR DISPLAYING THE PLAZA
ON MSN(Trademark) LINK LOGO
These are the Microsoft policies for displaying the Plaza on MSN link logo by
Plaza merchants who have executed a standard ECOMMERCE MERCHANT AGREEMENT FOR
The Plaza on MSN (the "Agreement"). Please consult Microsoft's other trademark
and logo policies for questions concerning other brands.
1. Except as Microsoft may authorize elsewhere, you may display only the link
logo shown below ("Logo"). By downloading the Logo, you agree to be bound
by these Policies.
2. You may only display the Logo on your Mirrored Web Site, as this term is
defined in the Agreement, and not in any other manner. It must always be an
active link to The Plaza on MSN Homepage at xxxx://xxx.xxxxx.xxx.xxx/. HTML
code for the link is shown below.
3. The Logo gif includes the words "Go back to Plaza", describing the
significance of the Logo on your site (i.e., the Logo is a link to The
Plaza, not an endorsement of your site). You may not remove or alter this
or any other element of the Logo.
4. You may only display the Logo on your Mirrored Web Site if it makes
accurate references to The Plaza on MSN. The Logo must be displayed
adjacent to those references or at the top of the same page. Your web page
title and other trademarks and logos must appear at least as prominent as
the Logo. You may not display the Logo in any manner that implies
sponsorship, endorsement, or license by Microsoft.
5. The Logo must appear by itself, with a minimum spacing (the height of the
Logo) between each side of the Logo and other graphic or textual elements
on your page. The Logo may not be used as a feature or design element of
any other Logo.
6. Except for size subject to the terms herein, you may not alter the Logo in
any manner, including proportions, colors, elements, etc., or animate,
morph or otherwise distort its perspective or two-dimensional appearance.
7. You may not display the Logo on any site that disparages Microsoft, or its
products or services, infringes any Microsoft intellectual property or
other rights, or violates any state, federal or international law.
8. These Policies do not grant a license or any other right in Microsoft's
logos or trademarks. Microsoft reserves the right in its sole discretion to
terminate or modify permission to display the Logo at any time. Microsoft
reserves the right to take action against any use that does not conform to
these Policies, infringes any Microsoft intellectual property or other
right, or violates other applicable law.
9. MICROSOFT DISCLAIMS ANY WARRANTIES THAT MAY BE EXPRESS OR IMPLIED BY LAW
REGARDING THE LOGO, INCLUDING WARRANTIES AGAINST INFRINGEMENT.
[GO BACK TO PLAZA]
[[HTML code]]
Displaying the MSN(Trademark)/The Microsoft(Registered) Network
Link Logo
on Non-Microsoft Web Sites
[GRAPHIC]
***Confidential portions of this document have been redacted and have been
separately filed with the Commission.
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CONFIDENTIAL TREATMENT REQUESTED BY xxxxxxxxxxxxxx.xxx inc.
Microsoft Confidential
1. Except as Microsoft may authorize elsewhere, non-Microsoft Web sites may
display only the link logo shown above ("Logo") and provided by Microsoft
from time to time for the purposes set forth below. By displaying the Logo,
you agree to be bound by these Terms.
2. You may only display the Logo on your Web site, and not in any other
manner. It must always be an active link to the MSN Homepage at
http:/xxx.xxx.xxx/. HTML code for the link is shown below.
3. The Logo gif includes the words "Click here for MSN", describing the
significance of the Logo on your site (i.e., the Logo is a link to MSN, not
an endorsement of your site). You may not alter this or any other element
of the Logo, or replace it with any other element.
4. You may only display the Logo on your Web pages if they make accurate
references to MSN or its products or services. The Logo must be displayed
adjacent to those references or at the bottom of the same page. Your Web
page title and other trademarks and logos must appear at least as prominent
as the Logo. You may not display the Logo in any manner that implies
sponsorship, endorsement, or license by Microsoft.
5. The Logo must appear by itself, with a minimum spacing (the height of the
Logo) around the Logo to separate it from other graphic or textual elements
on your page. The Logo may not be used as a feature or design element of
any other Logo.
6. You may not alter the Logo in any manner, including size, proportions,
colors, elements, etc., or animate, morph or otherwise distort its
perspective or two-dimensional appearance.
7. You may not display the Logo on any site that disparages Microsoft or its
products or services, infringes any Microsoft intellectual property or
other rights, or violates any law of any jurisdiction.
8. These Terms do not grant a license or any other right in Microsoft's logos
or trademarks. Microsoft reserves the right in its sole discretion to
terminate or modify permission to display the Logo at any time. Microsoft
reserves the right to take action against any use that does not conform to
these Terms, infringes any Microsoft intellectual property or other right,
or violates other applicable law.
9. MICROSOFT DISCLAIMS ANY WARRANTIES THAT MAY BE EXPRESS OR IMPLIED BY LAW
REGARDING THE LOGO, INCLUDING WARRANTIES AGAINST INFRINGEMENT.
[[HTML code]]
***Confidential portions of this document have been redacted and have been
separately filed with the Commission.
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CONFIDENTIAL TREATMENT REQUESTED BY xxxxxxxxxxxxxx.xxx inc.
CONTRACT NUMBER:
--------------------
AMENDMENT NUMBER 4 TO
ECOMMERCE MERCHANT AGREEMENT
This AMENDMENT NUMBER 4 TO THE ECOMMERCE MERCHANT AGREEMENT, dated as of the
27th day of October 1997 (the "Agreement"), is made by and between Microsoft
Corporation, a Washington U.S.A. corporation ("Microsoft"), and
xxxxxxxxxxxxxx.xxx inc., a Delaware U.S.A. Corporation ("Merchant"), to amend
the Agreement as set forth herein. Unless otherwise defined herein all defined
terms have the same meanings set forth in the Agreement:
WHEREAS, Microsoft's online e-commerce offerings are undergoing upgrading and
improvement, and therefore an amendment to the terms set forth in the Agreement
is necessary;
Now, therefore, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree that the
following shall be added to the Agreement and, as to the financial terms,
obligations and other matters expressly set forth herein, shall supercede the
terms of the Agreement:
10. Microsoft maintains a web-based portal site intended for users in the
United States and currently known as "XXX.XXX" ("Portal Site").
10.1. Microsoft currently anticipates that, among other things, the Portal
Site will feature a home page as its top-most page ("Home Page") and
several secondary pages grouped by content theme ("Channels"). The
Channels will be available from the Home Page via persistent
hypertext links prominently displayed above the fold in a bar on the
leftmost portion of the Home Page. Examples of Channels that
Microsoft currently expects to feature on the Portal Site include:
Autos, Business, Computing, Games, Health, News, Personal Finance,
Real Estate, Shopping, Sports, Travel, and Women. Absent technical
issues or other such critical obstacles, Microsoft currently
anticipates that the Channels will launch on or about October 1, 1998
("Launch Date").
10.2. The Portal Site will also feature a Microsoft developed (or licensed)
web-search capability ("Search") utilizing key words as the search
parameter.
10.3. The Home Page will also feature a text-based advertising space above
the fold ("Home Page Ad Space"). The Home Page further will feature a
section of persistent hypertext links that will be available on every
page of the Portal Site ("Quick Links"). The Quick Links will link to
specific secondary pages such as, by way of example, an online
encyclopedia, yellow page-style business listings, and television
listings.
***Confidential portions of this document have been redacted and have been
separately filed with the Commission.
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CONFIDENTIAL TREATMENT REQUESTED BY xxxxxxxxxxxxxx.xxx inc.
10.4. The Shopping Channel shall feature persistent sections on its topmost
page above the fold as follows:
10.4.1. a rotating set of graphic buttons consisting of merchants'
logos and providing links to those merchants' sites in a
section labeled "Plaza Merchants";
10.4.2. a section that will feature on a rotating basis specials from
merchants in a section called "Plaza Specials"; and
10.4.3. a section that feature recommendations for gifts based on
seasonal or holiday themes (e.g., back-to-school, Christmas,
Father's Day) that will feature appropriate hypertext links
to merchants' sites.
10.5. The Shopping Channel will have a series of persistent secondary pages
that will group merchants by product category. Each of these
secondary pages will be entitled "Departments." Persistent links to
the Departments will be placed on the Shopping Channel Home Page in a
section entitled "Shopping Categories." The Shopping Channel will
feature a "Book Department" featuring only book-related merchants and
content.
11. During the Term (as defined herein), Microsoft will accord Merchant Premier
Anchor Provider Status in the Book Category for the Portal Site.
Specifically:
11.1. Microsoft will provide to Merchant on a * * * . Microsoft will supply
the specification for this space to Merchant in writing in a timely
manner and Merchant shall comply with it. Microsoft shall not provide
the Home Page Ad Space to any other third-party bookseller.
11.2. Microsoft will provide Merchant with a persistent Quick Link labeled
"Buy Books" that will link to the Merchant Site. Microsoft shall not
provide any other third-party bookseller with a * * * .
11.3. In the Shopping Channel, Microsoft also will do the following:
11.3.1. Microsoft will feature Merchant's branded logo button * * *
in the Plaza Merchants section on an equal rotation basis
with other merchants with buttons in this section;
11.3.2. Microsoft will feature Merchant * * * in the Plaza Special
section;
11.3.3. Microsoft will include Merchant in Gift Guides * * * ; and
***Confidential portions of this document have been redacted and have been
separately filed with the Commission.
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CONFIDENTIAL TREATMENT REQUESTED BY xxxxxxxxxxxxxx.xxx inc.
11.3.4. Microsoft will feature a direct hyperlink to Merchant's Site
immediately below the link labeled "Books" in the Shopping
Categories section.
11.4. In the Book Department of the Shopping Channel, Microsoft will accord
Merchant the * * * of all merchants featured in the Book Department
and accord the top featured product space during the entire Term.
11.5. Microsoft will accord Merchant the opportunity to have its textual
message included in all overall Plaza email campaigns targeted to
Plaza registered users that have consented to receiving such
e-mailings. Such campaigns will take place at least * * * during the
Term. Microsoft will also accord Merchant the opportunity to have its
textual message included in Portal Site email campaigns targeted to
Portal Site registered users that have consented to receiving such
e-mailings.
11.6. For a period of one year from the launch of Search ("Launch Year
One"), Microsoft will ensure that Merchant=s Site is served up to
users as the only search result associated with * * * specific
book-related Key Words to be submitted to Microsoft by Merchant and
subject to Microsoft's reasonable approval. Such Key Words may be
updated from time to time by Merchant subject to Microsoft's
reasonable approval. Merchant will be able to select the first * * *
book words with priority over any other book partner. The parties may
mutually agree upon additional keywords that will serve up Merchant's
Site as a result on a non-exclusive basis. If Launch Year One ends
after the expiration of the Term, this Section 2.6 shall survive the
expiration of the Term and last until the end of Launch Year One.
11.7. Microsoft, on terms to be agreed upon by the parties at a later date,
will integrate Merchant at least * * * of the following Channels
(listed in order of preference): * * * . If and when the parties
agree to such terms, they agree that those terms will include a
provision that Merchant will be granted Premier Anchor Provider
Status on the Entertainment Channel.
11.8. Microsoft will use commercially reasonable efforts to integrate
Merchant under terms to be mutually agreed upon into any integrated
search feature made available on the Portal Site.
12 Microsoft's efforts as described above shall deliver at least * * *
impressions of the Merchant Site during the Term.
13. Except as otherwise set forth in Section 2.6, the term of the rights and
obligations under this Amendment ("Term") shall commence on October 1, 1998
and end on September 30, 1999.
***Confidential portions of this document have been redacted and have been
separately filed with the Commission.
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CONFIDENTIAL TREATMENT REQUESTED BY xxxxxxxxxxxxxx.xxx inc.
14. In consideration for the above-described rights and obligations set forth
herein, Merchant shall pay to Microsoft the following amounts:
14.1. Guaranteed Fee: As a nonrefundable advance against the Commissions
set forth in Section 5.2, Merchant shall pay $3,000,000 to Microsoft
upon execution of this Amendment.
14.2. Commission: In addition to the Guaranteed Fee, Merchant shall pay
Microsoft * * * of Merchant=s Gross Revenue less actual returns and
actual bad debt incurred during the Term. The Commission shall be
payable monthly to Microsoft no later than 30 days after each
three-month period on the anniversary of the Launch Date for all
transactions occurring during the previous three-month period. All
payments of the Fees shall first be credited against the Guaranteed
Fee set forth in Section 5.1 and shall thereafter be in a form
acceptable to Microsoft, in its sole discretion, and addressed to
Xxxxxxx Xxxxxxxx, c/o Microsoft Corporation, One Microsoft Way,
Redmond, WA 98052
14.3. Xxxxxxxx is responsible for ensuring that all payments are made on a
timely basis, MSP will not invoice Merchant for any amounts owing
pursuant to this Agreement.
15. Merchant will use commercially reasonable efforts to make special offers of
real value to Portal Site users.
16. The parties agree to exercise mutual good faith efforts to promote buying
books via the Portal Site.
17. At least 30 days prior to the expiration of the Term, the parties hereto
shall commence negotiating the renewal of this Amendment and shall
negotiate for a period of thirty days (the "Negotiation Period"). If the
parties do not reach an agreement with respect thereto prior to the
expiration of the Negotiation Period, Microsoft may negotiate with a third
party to be the Premier Anchor Provider Status in the Book Category for the
Portal Site; provided, however, Microsoft shall not enter into any
agreement with respect thereto with such third party for the 2 month period
following expiration of the Negotiation Period without first offering to
Merchant the opportunity to enter into such agreement on terms and
conditions at least as favorable to Merchant as those offered to or by
Microsoft by or to such third party. Merchant shall have five (5) business
days from the date of receipt of written notice from Microsoft of any such
offer (which offer shall be irrevocable during at least such five (5)
business days and said notice thereof shall contain full details in regard
thereto) in which to accept or reject such offer. If Merchant rejects or
does not accept such written offer within five (5) business days after
receipt thereof, Microsoft will be free to enter into such agreement with a
third party.
***Confidential portions of this document have been redacted and have been
separately filed with the Commission.
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CONFIDENTIAL TREATMENT REQUESTED BY xxxxxxxxxxxxxx.xxx inc.
Except as expressly provided herein, the Agreement is not otherwise modified in
any respect, and the same as hereby supplemented and amended is hereby ratified
and confirmed in all respects (including, specifically, Merchant's tracking and
reporting obligations, and the requirement of a "GO BACK" button on the
Merchant Site).
WHEREBY, the parties enter into this Amendment as of the later of the two
signature dates below.
MICROSOFT CORPORATION XXXXXXXXXXXXXX.XXX INC
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By (signature) By (signature)
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Name (print) Name (print)
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Title Title
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Date Date
