Exhibit 10 (i)
RESELLER AGREEMENT
This Agreement (the "Agreement") is entered into in San Diego,
California by and between Zoovy, Inc. a Delaware corporation with offices at
0000 Xxxxx Xxxxx Xxxxxxx 000 Xxxxx #000, Xxxxxxx by the Xxx, Xxxxxxxxxx 00000
(hereinafter "Zoovy") and First National Data Bank, Inc. (hereinafter
"Reseller") with offices located at 000 Xxxxxxx Xxxxxx, Xxxx Xxxxxx, XX 00000.
WHEREAS Zoovy is a provider of small business online e-commerce
software and marketing services;
WHEREAS Reseller is a firm actively engaged in assisting small or
medium sized businesses with technology.
NOW, THEREFORE in consideration of the above recitals, which form a
part of the agreement of the parties, Reseller and Zoovy agree as follows:
1. DEFINITIONS:
1.1 Merchants - any prospective customers who is not currently not
engaged with Zoovy either directly or through a reseller.
1.2 Participating Merchants - Merchants who has been sold Services
by Reseller pursuant to this Agreement.
1.3 Ineligible Merchants - Any Merchants who are actively engaged
with Zoovy for Services, but was not sold Services by
Reseller.
1.4 Subscriber Agreement - Any agreement or form that provides
Zoovy the necessary information and permission to begin
billing the Participating Merchant, or to xxxx the Reseller.
1.5 Services - one of the services described in Exhibit A.
1.6 Fixed Fees - the monthly fees that do not fluctuate for an
account.
1.7 Variable Fees - optional fees may be applied through usage of
the Zoovy system. Examples include Auction processing,
technical support, additional disk space, and others that may
be charged during normal usage.
2. RESPONSIBILITIES OF RESELLER. Zoovy hereby retains and authorizes
Reseller to market and sell the Services to Merchants as specifically
described below. Reseller acknowledges that Zoovy and others will be
marketing and supporting the Services. Reseller's authority to act on
behalf of Zoovy shall be limited to the activities described in this
Section 2. Reseller's rights and obligations include the following:
2.1 Reseller shall provide consulting on any other services it has
agreed with Participating Merchants to provide, which are
outside of the Zoovy Services. Reseller agrees to indemnify,
defend and hold harmless Zoovy from and against any and all
claims, liabilities, demands, actions, causes of actions,
losses, damages, costs or fees (included, but not limited to,
reasonable attorneys' fees and expenses) in any way arising
out of or in connection with any services provided by Reseller
to Participating Merchants.
2.2 Subscriber Agreements executed under this Agreement to begin
billing Reseller shall be executed by employees of Reseller's
organization using a designated toll-free telephone number, or
password secured online form.
2.3 Reseller may create accounts for Merchants by completing an
online Subscriber Agreement, or transmitting a written
Subscriber Agreement. All Subscriber Agreements for the
Services are subject to acceptance or rejection in Zoovy's
sole and absolute discretion (Fairness issue), and are subject
to the terms of the Zoovy Terms of Service policy which may be
found at xxxx://xxx.xxxxx.xxx/xxxxx
2.4 Reseller to provide technical and customer support for
Participating Merchants.
2.5 Reseller, at its sole discretion, may choose to resell Zoovy
Services with it's own services. This is acceptable to Zoovy
provided the following conditions are met:
2.5.1 Participating Merchant is informed that specific
portions of their site are powered by Zoovy.
2.5.2
2.5.3 Reseller will provide technical and customer support
to Participating Merchant.
2.5.4 Reseller must be aware of, and is responsible for any
and all charges incurred by the Participating
Merchant for Zoovy Services.
2.6 Reseller shall market the Services only to Merchants. Reseller
shall not market the Services to: (a) Ineligible Merchants,
(b) Merchants sell products in violation of Zoovy's Term of
Service policy, and (c) certain other Merchants or industries
as may be designated in writing from time to time by Zoovy in
its sole discretion subject to sixty (60) days written notice.
2.7 Reseller will designate one or more contact persons who will
coordinate the transfer of information between Zoovy and
Reseller, and who will be available to respond to inquiries.
2.8 Reseller agrees that all marketing and promotional material
that incorporate the Zoovy training materials and CD ROM must
receive written approval from Zoovy prior to use.
2.9 Reseller shall train merchants to ensure that the
Participating Merchant is able to operate their web store in
an effective manner.
2.10 Reseller will provide 30 days notice for termination or
cancellation of any Participating Merchant following an
initial 40 day grace period.. No set-up fees will be charged
for accounts cancelled within 40 day grace period.
3. RESPONSIBILITIES OF ZOOVY
3.1 Zoovy will provide Reseller with a complete suite of Zoovy
Services on a co-branded basis for purpose of resell to
Participating Merchants.
3.2 Standards. Zoovy's hosting standards shall conform to the
following:
3.2.1 Availability of Web Site. The Website shall be
publicly available to users a minimum of 90% of the
time during any 24 hour period, 98% of the time
during any 7 day period, and 99% of the time during
any 30 day period; and there will be no period of
interruption in public accessibility to the Website
that exceeds 2 continuous hours.
3.2.2 Response Time. The mean response time for server
response to all accesses to the Website shall not
exceed more than 10 seconds during any 1 hour period.
3.2.3 Bandwidth. The bandwidth representing the Website's
connection to the Internet shall be operating at
capacity no more than 30 minutes in any 24 hour
period.
3.2.4 Security. Zoovy shall prevent unauthorized access to
the restricted areas of the Website and any databases
or other sensitive material generated from or used in
conjunction with the Website; and Zoovy shall notify
Reseller of any known security breaches or holes.
3.2.5 Inapplicability of Force Majeure. The foregoing
standards shall apply regardless of the cause of the
interruption in service, even if the interruption in
service was beyond the control of Zoovy.
3.2.6 Remedies. In addition to other applicable remedies,
Reseller will receive a full months credit on
hosting, if any breach of this Section 3.2 is not
cured within the later of the next measurable period
(only if applicable) or 10 days.
3.2.7 Site Backup. At Zoovy's expense, Zoovy shall maintain
a complete and current copy of the Website on a
server located at a remote location. In the event
that service is interrupted to the Website, the
remote server shall be immediately activated so that
public access to the Website may continue
uninterrupted.
3.2.8 Server Logs. On the first day of every month, and at
any other time as reasonably requested by Reseller,
Zoovy at its expense shall deliver to Reseller in
electronic form the server logs of Website activity
(the "Server Logs").
4. DEPOSITS AND PAYMENTS.
4.1 Zoovy will extend credit lines to Reseller with terms of net
10.
4.2 Zoovy requires a valid credit card or checking account from
Reseller from which funds may be withdraw, if payments are not
made within a timely manner. Payments are considered
delinquent if payments not received 5 (five) days after due
date. Delinquent payments will charged to Reseller's credit
card or checking account and will include late payment fee of
5.0% of all past due amounts. Zoovy has right close accounts
of Participating Merchants or request a deposit, if accounts
are past due for more than 30 days.
4.3 Zoovy will receive payment from Reseller. Reseller shall be
responsible for collecting Fixed and Variable fees from
Participating Merchants. Reseller is responsible for all
charges made by Participating Merchants. At the Resellers
request, Zoovy will directly xxxx the Participating Merchant
for any Variable Fees associated with an account.
4.4 Zoovy shall provide Reseller an electronic website for
determining the current billing and breakdown of all Fixed
Fees and Variable Fees associated with any Participating
Merchant who is active with the Reseller.
4.5 Zoovy may alter its prices. Zoovy will provide Reseller at
least 60 days advanced notice before the first affected
billing cycle.
5. COMMISSIONS. Zoovy shall pay no commissions on all Services sold under
this Agreement. Reseller is responsible for collecting all fees from
Participating Merchants.
6. REQUESTED INELIGIBLITY. In the event the Reseller terminates the
Participating Merchant's account without cause, Zoovy will, at it's
option, by the request of the Participating Merchant, remove said
Participating Merchant from the Resellers list of active accounts and
form an arrangement to invoice the Participating Merchant directly for
Zoovy Services, provided the Participating Merchant wishes to continue
with the Zoovy Service. In the event this occurs, the Participating
Merchant shall be deemed as an Ineligible Merchant for all
participating Zoovy Resellers. Zoovy will notify Reseller in writing of
any such action.
7. MARKETING PROGRAM. Reseller shall at its expense promote the sale of
Services to Merchants under this Agreement through an on-going
marketing program. The marketing program shall include, at a minimum,
the activities specified in Exhibit C to this Agreement, and the
Parties may from time to time review and agree upon additional
marketing activities.
8. COMPLIANCE WITH LAW. Reseller shall maintain all licenses; permits or
registrations required to perform its obligations under this Agreement
and shall comply with all federal, state and local laws and regulations
applicable to the sale of the Services under this Agreement.
9. INDEMNIFICATION. Each party shall indemnify, defend and hold harmless
the other party and the other party's officers, directors, agents,
members, employees, shareholders and affiliates against any claim,
damage, liability or expense (including reasonable attorneys fees)
arising out of or relating to the indemnifying party's breach of this
Agreement or any acts or omissions of the indemnifying party or its
employees, contractors or agents under the Agreement.
10. CONFIDENTIALITY. Each party shall strictly maintain the confidentiality
of any nonpublic, proprietary information it may obtain from the other
party and shall not disclose that information to any other person or
entity, except (i) as agreed to in writing by the other party or (ii)
as required by applicable law, regulation or court order. The
confidentiality obligations of the Parties under this Paragraph shall
survive the expiration or termination of this Agreement.
11. TRADE NAMES AND TRADEMARKS. This Agreement grants either party a
limited use license in Exhibit B, which will remain active for the
duration of this agreement. Except as expressly provided in Exhibit B
this agreement does not grant either party permission to use any other
corporate name, trade name, trademark, service xxxx, symbol or logo of
the other party in any manner whatsoever.
12. BOOKS AND RECORDS. Zoovy shall maintain adequate books and records to
demonstrate its compliance with its obligations under this Agreement.
Such books and records shall be made available upon reasonable advance
notice to Reseller and its designated accountants, counsel, or other
representatives for inspection and audit during normal business hours.
13. NON SOLICITATION. Reseller shall not, either while this Agreement is in
force or thereafter, (i) use or disclose, rent or sell any the names
and addresses of customers of Participating Merchants it learns as a
result of selling Services under this Agreement, without written
approval from Participating Merchants, or (ii) solicit or otherwise
cause any Participating or Ineligible Merchant to terminate its Service
that is already directly or indirectly provided by Zoovy, whether or
not such are provided under the terms of this agreement.
14. ACCESS TO PARTICIPATING MERCHANTS. Zoovy will have the right to send
email messages to Participating Merchants that update, educate, and
inform on new and existing Services. Zoovy will inform Reseller in
advance, when possible, of future email notifications to Participating
Merchants.
15. NO JOINT VENTURE. Reseller and Zoovy both acknowledge that this
contract does not form the basis of a partnership, joint venture, or
investment on behalf of either company.
16. TERM. The initial Term of this Agreement shall be for a period of one
(1) year commencing on the execution of the Agreement by both parties,
unless it is terminated earlier by express mutual agreement between the
parties or pursuant to the provisions below on "Termination." The
Agreement shall thereafter be automatically renewed for additional
terms of one (1) year unless either party notifies the other no later
than sixty (60) days prior to the end of the current term that it does
not wish to renew this Agreement.
17. TERMINATION
17.1 At Will. Either party may terminate this Agreement prior to
the expiration of its initial Term (or any subsequent
extension thereof) in the terminating party's sole and
absolute discretion, with or without cause, by giving sixty
(60) days prior written notice of termination to the other
party.
17.2 For Cause. Either party may terminate this Agreement prior to
the expiration of its initial Term (or any subsequent
extension thereof) immediately upon written notice to the
other party (i) if the other party has breached a material
promise, obligation, representation, covenant or warranty
under the Agreement and has failed to cure that breach within
ten (10) business days after receiving written notice of the
breach; or (ii) if the other party becomes insolvent, makes
any assignment for the benefit of creditors, suspends
payments, consents to or suffers the appointment of a
receiver, trustee, committee of creditors or liquidating
agent, files a petition or otherwise seeks relief under any
bankruptcy, insolvency or reorganization statute, or has filed
against it an involuntary petition in bankruptcy which remains
undismissed or undischarged for a period of thirty (30) days
after filing.
17.3 Effect of Termination at Will. Upon the expiration or
Termination At Will of the Agreement, Reseller shall return
all marketing materials, CD ROM training materials, price
lists, customer lists, and any other Zoovy property in his
possession. Reseller shall not continue to use the names and
logos of Zoovy after termination.
17.3.1 In the event that Reseller Terminates At Will, then Zoovy has
the right to form an arrangement to invoice the Participating
Merchant directly for Zoovy Services, provided the
Participating Merchant wishes to continue with the Zoovy
Service.
17.3.2 In the event that Zoovy Terminates At Will, then Zoovy shall
not solicit Participating Merchants, and will continue to
provide Zoovy Services to existing Participating Merchants
under the terms of this Agreement.
17.4 Effect of Termination for Cause. Upon the Termination For
Cause by Reseller of the Agreement due to insolvency of Zoovy,
Zoovy shall provide Reseller with the source software code for
the Zoovy Services. Upon the Termination For Cause by Zoovy of
the Agreement, Zoovy shall have the right to convert the
Subscriber Agreements from the Reseller to Zoovy.
18. ARBITRATION. Any claim or controversy arising out of this Agreement or
an alleged breach thereof shall be settled by final and binding
arbitration conducted in San Diego, California pursuant to the
Commercial Arbitration Rules of the American Arbitration Association.
All available documents and information relevant to the claim or
dispute shall be made available to the other party no later than sixty
(60) days after the demand for arbitration is served, and the
arbitrator(s) shall permit such other discovery as may be necessary for
a fair hearing. The arbitrator(s) may award appropriate injunctive
relief and compensatory damages, but shall not make any award in the
nature of exemplary or punitive damages. Judgment on the award rendered
by the arbitrator(s) may be entered in any court of competent
jurisdiction.
19. COSTS AND ATTORNEYS FEES. If either party seeks to enforce its rights
under this Agreement or to construe any provision of the Agreement, all
costs and expenses reasonably incurred by the prevailing party (who
shall be the party who obtains substantially the relief sought by such
party), including, without limitation, arbitration fees, court costs
and reasonable attorneys' fees.
20. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure
to the benefit of the Parties and their respective heirs, successors,
and assigns.
21. ENTIRE AGREEMENT. This Agreement, including the Exhibits annexed
hereto, contains the entire agreement between the Parties with respect
to the subject matter hereof, and supersedes and cancels any prior
agreement or understanding, whether oral or written, between the
Parties with respect thereto.
IN WITNESS WHEREOF, and intending to be legally bound, the Parties have
caused their authorized officers to execute this Agreement by affixing
their signatures hereto.
Zoovy, Inc.
By: /s/ Xxxxx Xxxxx Date: 1/4/2002
------------------------------ ---------------------
Title: CEO
Xxxxx Xxxxx
Reseller
By: /s/ Xxxxx X. Xxxxxxx Date: 1/4/2002
------------------------ ---------------------
Title: V.P.
Xxxxx Xxxxxxx
EXHIBIT A
Zoovy Services.
Services that are included o Zoovy e-commerce software and
windows products.
o Co-branding features including
custom support system and space to
input Reseller logo, toll free
number, and support email address
o Free Trial Accounts
o Technical support for Reseller, not
for Participating Merchants
-------------------------------------- -----------------------------------------
Services that are not included o Zoovy customer and technical
support for Reseller's
Participating Merchants
-------------------------------------- -----------------------------------------
Custom Reports for Reseller o Customized billing and sales
tracking reports
-------------------------------------- -----------------------------------------
Regular Retail Pricing for Services. See Exhibit A-1.
Cost of Zoovy Services to Reseller.
1. Monthly Fees and Setup Fees - see Exhibit A-2.
3. Monthly Billing - Monthly billing starts once accounts are sold to
Participating Merchants and activated.
a. Month One Prorata Billing - Month one accounts will be billed
at the start of month two according to the following schedule:
i. 100% for accounts activated during first 15 days of
month; and
ii. 50% for accounts activated during last 15 days of
month.
b. Month Two Billing - Billing for month two will include Month
One Prorata ,set-up fee, and prepayment for month two.
c. Month Three Billing - Regular billing that will include
prepayment for month three.
4. Price increases - Zoovy may alter its prices. Zoovy will provide
Reseller at least 60 days advanced notice before the first affected
billing cycle.
5. Cancellation Fees - Reseller will provide 30 days notice for
termination or cancellation of any Participating Merchant following an
initial 40 day grace xxxxxx.Xx set-up fees will be charged for accounts
cancelled within 40 day grace period.
7. Minimum Monthly Payment to Zoovy - Reseller commits to paying Zoovy the
higher of $2,500 per month or the sum of monthly billing.
Other Items.
From time to time Zoovy, at it's option may run specials designed to
attract specific vertical industries. Provided the Participating Merchant
qualifies, the Reseller will have the ability to purchase the special services,
or account packages at special discounts.
Resold Services: Zoovy incorporates various services from other
companies into its offering. Zoovy does not make any attempt to brand these
services as it's own. These services are available to Reseller, if desired, and
resell rates will be made available. Reseller can also contract directly with
below companies. The current services that do not qualify for discounting
include:
Verisign Payment Gateway
Xxxxxxxxx.Xxx payment gateway
Cardservice Merchant Processing Services
Merchant Processing Services
Xxxxxxxx.xxx Domain Registration
Dotster Domain Registration
Exhibit A-1: ZOOVY RETAIL PRICING
Silver Gold
Set-up Fee Monthly Set-up Fee Monthly
Zoovy Merchant Packages $ 49.95 $ 49.95 $ 99.95 $ 99.95
options:
Basic Training Program * $ 299.00 $ 299.00
We-Build-It Service * (a) $ 699.00 $ 699.00
Domain Redirect $ 25.00 $ 4.95 included
Quickbooks Integration $ 25.00 $ 9.95 included
Rules Based Shipping included included
* Includes basic set-up fee
Zoovy Developer $ 49.95 $ 49.95 $ 99.95 $ 99.95
options:
Basic Training Program * $ 299.00 $ 299.00
We-Build-It Service *(#) (a) $ 699.00 $ 20.00 $ 699.00 $ 20.00
Quickbooks Integration $ 25.00 $ 9.95 included
Rules Based Shipping included included
* Includes basic set-up fee
# We-Build-It service requires that Zoovy host client's catalog. Normal hosting
fee of $20.00 per month. (a) $699.00 service based on 10 hours
development/training time. Some sites require extra hours.
Zoovy Hybrid Developer $ 59.95 $ 59.95 $ 109.95 $109.95
options:
Basic Training Program * $ 299.00 $ 299.00
We-Build-It Service *(#) (a) $ 699.00 $ 20.00 $ 699.00 $ 20.00
Quickbooks Integration $ 25.00 $ 9.95 included
Rules Based Shipping included included
* Includes basic set-up fee
# We-Build-It service requires that Zoovy host client's catalog. Normal hosting
fee of $20.00 per month. (a) $699.00 service based on 10 hours
development/training time. Some sites require extra hours.
Exhibit A-2: Cost of Zoovy Services to Reseller
Silver Gold
Set-up Fee Monthly Set-up Fee Monthly
Zoovy Merchant Packages
0-499 cumulative active accounts $ 20.00 $ 25.00 $ 20.00 $ 50.00
500-999 $ 15.00 $ 20.00 $ 15.00 $ 40.00
1000-1999 $ 10.00 $ 15.00 $ 10.00 $ 30.00
2000+ accounts $ 5.00 $ 10.00 $ 5.00 $ 20.00
Auction Integration per closed auction 50% discount 50% discount
MarketPlace Fees TBD* TBD*
Zoovy Developer
0-499 cumulative active accounts $ 20.00 $ 25.00 $ 20.00 $ 50.00
500-999 $ 15.00 $ 20.00 $ 15.00 $ 40.00
1000-1999 $ 10.00 $ 15.00 $ 10.00 $ 30.00
2000+ accounts $ 5.00 $ 10.00 $ 5.00 $ 20.00
Auction Integration per closed auction 50% discount 50% discount
MarketPlace Fees TBD* TBD*
Zoovy Hybrid Developer
0-499 cumulative active accounts $ 20.00 $ 30.00 $ 20.00 $ 55.00
500-999 $ 15.00 $ 25.00 $ 15.00 $ 45.00
1000-1999 $ 10.00 $ 20.00 $ 10.00 $ 35.00
2000+ accounts $ 5.00 $ 15.00 $ 5.00 $ 25.00
Auction Integration per closed auction 50% discount 50% discount
MarketPlace Fees TBD* TBD*
options:
Quickbooks Integration $ 10.00 $ 3.00 included included
Multimedia Training Materials $ 10.00 plus shipping $ 10.00 plus shipping
Note:
Maximum Storage Space (Mb) 50 100
Number Items up to 500 unlimited
Number Transactions per month up to 500 free up to 1000
($0.05 each over
1000)
* Pricing will be determined as new
Zoovy Marketplaces are added.
NOTE:
1) Minimum monthly fees to Zoovy are $ 2,500 Per month
2) Pricing on volume brackets are non-retro active.
EXHIBIT B
(See Section 10: Trademarks)
Reseller shall have permission to use the following service marks in
preparing literature necessary to solicit new Merchants.
1. Zoovy BronzeSM
2. Zoovy SilverSM
3. Zoovy Gold SM
Reseller shall identify correctly the trademarks and service marks of
Zoovy in those materials or pages as required by Zoovy from time to time.
Service marks of Zoovy include but are not limited to:
1. Zoovy(TM)
2. Zoovy Merchant(TM)
3. Zoovy Developer(TM)
4. Zoovy FastTrack(TM)
5. Zoovy Marketplaces(TM)
6. Powered by Zoovy(TM)
7. Do you Zoovy?(TM)
Reseller shall bear all expenses related to the printing of custom
advertising or collateral describing the Services. In no instance shall the
Zoovy name become a generic name or any of the Zoovy products, including,
without limitation, the Services, become a Reseller or generic product, or
reference a grouping of similar products. Reseller shall not rename the
Services. Reseller shall sell the Services only under the Zoovy trademarks.
Reseller shall discharge its responsibilities in a professional manner as
determined by Zoovy in its sole discretion.
Reseller shall have permission to use the Zoovy logo on its own
advertising, and partner page, provided the Zoovy Logo guidelines are explicitly
adhered to. In the event the guidelines are changed or altered, the Reseller
will have thirty (30) days to have materials become compliant.
Resellers are encouraged to have all materials approved by Zoovy prior
to production or distribution.
The Zoovy Logo guidelines, as well as master copies of the Art will be
provided after the execution of this agreement.
Exhibit C
Marketing Program
To be developed with First National Data Bank
