EXHIBIT 10.7
VERTICALNET, INC.
COMPARISON SHOPPING SERVICE
SUBSCRIPTION AGREEMENT
This Comparison Shopping Service Agreement (the "Agreement") is entered
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into as of __________, 1998 (the "Effective Date") by and between Junglee Corp.,
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a Delaware corporation, having its principal place of business at 0000 Xxxxxxx
Xxxx., Xxxxx 000, Xxxxxxxxx, XX 00000 ("Junglee") and VerticalNet, Inc..
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("VerticalNet"), a corporation having its principal place of business at 2
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Xxxxxx Xxxxx Xxxxx, Xxxxx #000, Xxxxxxx, XX 00000.
R E C I T A L S
A. WHEREAS, Junglee has developed a comparison shopping guide and
service through its proprietary technology which searches, retrieves, organizes
and presents data from disparate sources;
B. WHEREAS, VerticalNet wishes to subscribe to, and use and promote
Junglee's Comparison Shopping Services (defined below) as part of VerticalNet's
Site (defined below) on the World Wide Web on the terms and conditions set forth
herein.
NOW THEREFORE, in exchange for the mutual promises herein, and for
other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties hereby agree as follows:
1. DEFINITIONS
1.1 "Junglee Comparison Shopping Service" means the Junglee-hosted on-line
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service that provides comparison shopping and related information
retrieval across selected product and service categories and merchants,
functioning substantially as is described on Exhibit A hereto, as such
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service may be modified or replaced from time to time, for users and
customers of the VerticalNet's Site (defined below).
1.2 "Wrapped Site" means a single data source for which Junglee has
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extracted, or can extract dynamically, information used in creating
results sets and information provided in the Junglee Comparison
Shopping Service. A single data source is a collection of data at one
location or web site, relating to a single market that has a common
organization and structure.
1.3 "VerticalNet Site" means VerticalNet's current and future sites on the
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World Wide Web.
1.4 "Proprietary Technology" means Junglee's proprietary computer programs
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and software, including the Virtual Data Base ("VDB") Engine, and all
services, processes, data, information, tables, and Wrappers created by
Junglee, and all improvements, updates, fixes, releases and updates
related thereto, which searches, retrieves, organizes and presents data
from disparate sources and Wrapped Sites as described hereunder for use
with the Junglee Comparison Shopping Service.
1.5 "Intellectual Property" means any intellectual property or proprietary
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rights, including but not limited to copyright rights (including rights
in audiovisual works), moral rights, trademark (including logos,
slogans, trade names, service marks), patent rights (including patent
applications and disclosures), know-how, inventions, rights of
priority, and trade secret rights, recognized in any country or
jurisdiction in the world.
1.6 "Delivery Date" means the first date on which the Junglee Comparison
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Shopping Service is operating and accessible from the VerticalNet Site.
2. SUBSCRIPTION SERVICES
2.1 Subscription. Subject to the terms and conditions of this Agreement,
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VerticalNet hereby subscribes to the Junglee Comparison Shopping
Service for the Term (the "Subscription"). The Subscription shall give
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VerticalNet the nonexclusive and nontransferable (except as provided in
Section 11.3) right to promote, use and offer the Junglee
Comparison Shopping Service to customers and users accessing the
VerticalNet Site for the Term solely as part of the VerticalNet Site.
VerticalNet shall also have the right to offer and sell advertising,
promotion, merchandising or marketing services (including, but not
limited to banners, links, marketing services, promotions, product
tie-ins, product or service merchandising and sponsorships) to third
parties on the shopping guide page of the VerticalNet Site and any
related category level pages, results pages, search pages or other
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pages or placements used or made available in connection with the
Junglee Comparison Shopping Service. The Subscription shall not be
cancelable by VerticalNet except as provided in this Agreement.
VerticalNet understands and agrees that the content, maintenance and
operation of the Junglee Comparison Shopping Service and the
Proprietary Technology related thereto will be exclusively controlled
and owned by Junglee, and will reside [be hosted] on Junglee's hardware
and equipment.
2.2 No Grant of License. Junglee does not grant to VerticalNet any other
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right, or any license, express or implied, in the Proprietary
Technology or any other Junglee software or Junglee Intellectual
Property.
3. VERTICALNET'S OBLIGATIONS
3.1 Marketing. As a part of the Subscription, VerticalNet will provide
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Junglee with the Branding and Marketing Assistance described in Exhibit
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B hereto.
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3.2 Restrictions. VerticalNet shall not (a) reverse engineer, disassemble,
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decompile or otherwise attempt to derive source code from the
Proprietary Technology, (b) make the Proprietary Technology available
to any third parties other than as expressly permitted in this
Agreement, (c) modify, adapt, translate or create derivative works
based on the Proprietary Technology, (d) reproduce any portion of the
Proprietary Technology except as expressly permitted herein, or (e)
permit or authorize any party to do any of the foregoing.
4. COMPENSATION
4.1 Fees. VerticalNet shall pay Junglee the Advertising Fee, and Junglee
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shall pay VerticalNet the Merchant Fee, set forth in Exhibit C pursuant
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to the payment schedule set forth therein (collectively, the "Fees").
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VerticalNet or Junglee, as the case may be, shall pay a late fee on all
amounts not paid within thirty (30) days of the date due set forth on
Exhibit C equal to one and one-half percent (1 1/2%) per month of such
outstanding amounts or the highest rate allowed by law, whichever is
less. All fees quoted and payments made hereunder shall be in U.S.
Dollars and may be made by wire transfer or check to the financial
institution of designated by a party or by check.
4.2 Taxes. Amounts payable to Junglee or VerticalNet under this Agreement
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are payable in full to Junglee or VerticalNet without off-set or
deduction for taxes (including any withholding tax) or customs duties.
In addition, VerticalNet and Junglee shall be responsible for and shall
indemnify and defend each other for any sales, use, value-added and
similar transaction taxes and customs duties paid or payable, however
designated, levied, or based on amounts payable to Junglee or
VerticalNet hereunder. VerticalNet and Junglee will not be responsible
for paying any United States federal, state and local taxes based on
Junglee's or VerticalNet's income.
4.3 Books and Records. Each party agrees that accompanying each payment of
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Fee hereunder, the paying party will deliver to the receiving party
with the Fee a report containing such information which is reasonably
necessary for the computation of the payment of the Fee. Each party
will maintain complete records concerning the computation and payment
of Fees throughout the Term and for a period of one (1) year after the
end of the Term.
4.4 Audit. During the Term and for a period of one (1) year after the end
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of the Term, each party (the "Auditor") shall have the right, upon
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reasonable advance notice, during normal business hours to inspect and
review the records of the other party (the "Audited Party") on which
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the records described in Section 4.3 are based (the "Audit"); provided,
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that the Auditor gives the Audited Party reasonable prior written
notice of the Audit. The Auditor shall conduct
the Audit through an independent accounting firm at the Auditor's sole
cost and expense; except that if the Audit reveals a shortfall in the
Fee payable which exceeds five percent (5%) of the Fee due the Auditor
for the period covered by the Audit, then the Audited Party shall pay
the reasonable costs and expenses of the Audit. All information
reviewed and obtained during the Audit shall be treated as Confidential
Information pursuant to Section 7.
5. MAINTENANCE AND SUPPORT Junglee shall provide maintenance and technical
support for the Junglee Comparison Shopping Service to VerticalNet from
9:00 a.m. to 6:00 p.m., Pacific Time on business days. All support
shall be provided in English from Junglee's offices, via telephone or
electronic mail unless otherwise agreed in advance in writing. Junglee
shall make a reasonable effort to respond to all requests for support
within a commercially reasonable amount of time, not to exceed five (5)
hours, or if the request for support is received outside of Junglee's
business hours, by noon of Junglee's next business day. Junglee's
obligation to provide support under Section 5 shall extend solely to
requests for support received from VerticalNet. Junglee will have no
obligation to furnish any assistance, information or documentation with
respect to the Proprietary Technology to any user other than as
provided for in this Agreement for VerticalNet.
6. PROPRIETARY RIGHTS
6.1 Ownership. VerticalNet understands and agrees that Junglee is the
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exclusive owner of and holds and shall retain, all right, title and
interest in and to the Proprietary Technology, including without
limitation all Intellectual Property therein. Both parties agree that
there shall be joint ownership of all right, title and interest in and
to any and all information, data, and compilations resulting from or
related to use of the Junglee Comparison Shopping Service and operation
of the Proprietary Technology, including without limitation, queries,
searches, search results, customers, advertisers, user identities and
information, Merchant identities and information, product or service
information and price information. Each party can use any such jointly
owned material without royalty obligation or any other accounting
obligation to the other party therefor.
6.2 Intellectual Property. If a party desires to use any of the other
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party's Intellectual Property the requesting party will obtain the
appropriate approvals and guidelines for use of the other party's
Intellectual Property from the other party. Nothing herein shall grant
a party any right, title or interest in the other party's Intellectual
Property. At no time during or after the term of this Agreement shall a
party challenge or assist others to challenge the other party's
Intellectual Property or the registration thereof or attempt to
register any trademarks, marks or trade names confusingly similar to
those of the other party.
7. CONFIDENTIALITY.
7.1 Confidentiality Information. Each party (the "Receiving Party")
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acknowledges that by reason of its relationship to the other party (the
"Disclosing Party") hereunder, the Receiving Party will have access to
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certain information and materials, including the terms of this
Agreement, concerning the Disclosing Party's business, plans,
technology, products and services that are confidential and of
substantial value to the Disclosing Party, which value would be
impaired if such information were disclosed to third parties
("Confidential Information"). The Receiving Party agrees that it shall
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not use in any way for its own account or the account of any third
party, nor disclose to any third party, any such Confidential
Information revealed to it by the Disclosing Party. The Receiving Party
shall take every reasonable precaution to protect the confidentiality
of Confidential Information. Upon request by the Receiving Party, the
Disclosing Party shall advise whether or not it considers any
particular information to be Confidential Information. The Receiving
Party shall not publish any technical description of the Disclosing
Party's Confidential Information beyond any descriptions published by
the Disclosing Party. In the event of expiration or termination of this
Agreement, there shall be no use or disclosure by the Receiving Party
of any Confidential Information of the Disclosing Party, and the
Receiving Party shall not develop any software, devices, components or
assemblies utilizing the Disclosing Party's Intellectual Property.
7.2 Exclusions. Confidential Information does not include any information
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that the Receiving Party can demonstrate by written records: (a) was
known to the Receiving Party prior to its disclosure hereunder by the
disclosing party; (b) is independently developed by the Receiving
Party; (c) is or becomes publicly known through no wrongful act of the
Receiving Party; (d) has been rightfully received from a third party
whom VerticalNet has reasonable grounds to believe is authorized to
make such disclosure without restriction; (e) has been approved for
public release by the Disclosing Party's prior written authorization;
or (f) must be produced or disclosed pursuant to applicable law,
regulation or court order, provided that the receiving party provides
prompt advance notice thereof to enable the disclosing party to seek a
protective order or otherwise prevent such disclosure. In addition,
Junglee and VerticalNet may disclose the existence and terms of this
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Agreement in connection with a potential acquisition of substantially
the entire business of Junglee or VerticalNet or a private or public
offering of Junglee's or VerticalNet's securities, and each party may
also discuss the terms of this agreement to its counsel, accountants,
directors and agents in accordance with the terms of this Section 7.
8. REPRESENTATIONS AND WARRANTIES AND INDEMNITY
8.1 Proprietary Technology Warranty. Junglee represents and warrants that:
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(i) Junglee owns all right, title and interest in and to the
Proprietary Technology; (ii) the use of the Proprietary Technology as
contemplated hereunder does not violate or infringe upon any United
States copyright or other intellectual property rights of any third
party; and (iii) Junglee has the right, power and authority to grant
the rights specified in this Agreement.
8.2 Performance. Junglee warrants that for the term of this Agreement, the
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Junglee Comparison Shopping Service shall substantially perform the
functionality described in Exhibit A. Junglee's sole obligation and
liability, and VerticalNet's sole remedy, with respect to any breach of
this paragraph, shall be Junglee's provision of the maintenance and
support obligations listed in Section 5.
8.3 Junglee warrants that (a) the Proprietary Technology are designed to be
used prior to, during, and after January 1, 2000 A.D. and with data
related to dates ("Date Data") from all such time periods, and (b) the
Proprietary Technology, when used in accordance with the documentation
therefor, does and will (i) operate during each such time period
without interruption or human intervention with four digit year
processing on all Date Data, including errors, omissions or
interruptions from functions that involve Date Data from more than one
century or leap years, regardless of the date of processing or date of
Date Data, (ii) provide results from any operation accurately
reflecting any Date Data used in the operation performed, with output
having four digit years, (iii) accept two digit year Date Data in a
manner that resolves any ambiguities as to century in a defined manner,
and (iv) provide date interchange in the ISO 8601:1988 standard of
CCYYMMDD. As used herein, "Date Data" means any data, input or output
which includes a date, an indication of date or is date dependent.
8.4 Indemnity by Junglee. Junglee shall indemnify, defend and hold harmless
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VerticalNet, its affiliates and subsidiaries and their respective
directors, officers, employees, successors and assigns (each, an
AVerticalNet Indemnified Party") from and against any and all suits,
actions, proceedings at law or in equity, claims, and losses asserted
against, including without limitation expenses of litigation and
reasonable attorneys' fees, in connection with any claims made or suits
brought by third parties against by any VerticalNet Indemnified Party
either i) arising out of or resulting from the services provided by
Junglee hereunder or ii) by reason of Junglee's breach of any
representation hereunder.
9. LIMITATION OF LIABILITY AND DISCLAIMER
9.1 Limitation of Liability. EXCEPT FOR CLAIMS CONSTITUTING A BREACH OF
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JUNGLEE'S REPRESENTATIONS UNDER SECTION 8.1, JUNGLEE'S TOTAL LIABILITY
ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO THE MOST RECENT
YEAR'S FEE PAID BY VERTICALNET TO JUNGLEE UNDER THIS AGREEMENT. IN NO
EVENT SHALL EITHER PARTY BE LIABLE TO EACH OTHER OR ANY OTHER ENTITY
FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES, HOWEVER
CAUSED, ON ANY THEORY OF LIABILITY, AND NOTWITHSTANDING ANY FAILURE OF
ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. NEITHER PARTY SHALL BE LIABLE
TO THE OTHER OR ANY OTHER PARTY FOR ANY DAMAGES ARISING FROM THIRD
PARTY UNAUTHORIZED ACCESS TO THE PROPRIETARY TECHNOLOGY.
9.2 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE JUNGLEE COMPARISON
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SHOPPING SERVICE IS PROVIDED FOR VERTICALNET'S USE DURING THE TERM OF
THIS AGREEMENT "AS IS." JUNGLEE MAKES NO OTHER WARRANTIES OF ANY KIND,
EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, REGARDING THE
JUNGLEE COMPARISON SHOPPING SERVICE OR JUNGLEE'S SERVICES HEREUNDER,
AND JUNGLEE SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF
NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
JUNGLEE DOES NOT WARRANT THAT THE OPERATION OF THE JUNGLEE COMPARISON
SHOPPING SERVICE OR HOSTING ENVIRONMENT WILL BE UNINTERRUPTED OR
ERROR-FREE. FURTHERMORE, JUNGLEE DOES NOT MAKE ANY REPRESENTATIONS
REGARDING THE USE OR THE RESULTS OF THE USE OF THE JUNGLEE COMPARISON
SHOPPING SERVICE IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY
OR OTHERWISE.
10. TERM AND TERMINATION
10.1 Term. The term of this Agreement shall commence on the Effective Date
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and continue for a period of twelve (12) months after the Delivery
Date, unless earlier terminated as set forth herein (the "Term"). The
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Agreement shall automatically renew for successive one year periods
unless VerticalNet provides written notice of termination ten days
prior to the end of any one year period (each such one year period also
being referred to herein as the "Term"). Junglee may, at its option,
prior to any new Term, by giving VerticalNet at least 30 days prior
written notice thereof, increase the Minimum Guaranteed Advertising Fee
payable by the VerticalNet under this Agreement. Junglee shall not make
more than one adjustment in any 12-month period. Any increase shall not
exceed the lesser of (i) seven percent (7%) per annum, or (ii) the
percentage by which the CPI as of the time of the adjustment is higher
than the Index as of (A) the date of this Agreement, for the first
adjustment, and (B) thereafter, the preceding date that the Minimum
Guaranteed Advertising Fee was adjusted pursuant to this Section 10.1.
Any fees increased pursuant to this Section 10.1 will remain in effect
until Junglee adjusts them again pursuant to this Section 10.1. For
purposes hereof, CPI shall mean the All Urban Consumer Index for U.S.
Cities Averaged for All Items as determined by the Department of
Labor's Bureau of Labor Statistics.
10.2 Termination for Breach or Insolvency. A party shall have the right to
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terminate this Agreement on written notice if (a) the other party
ceases to do business in the ordinary course or is insolvent (i.e.,
unable to pay its debts in the ordinary course as the come due), or is
declared bankrupt, or is the subject of any liquidation or insolvency
proceeding which is not dismissed within ninety (90) days, or makes any
assignment for the benefit of creditors, or (b) the other party
breaches any material term of this Agreement and fails to cure such
breach within thirty (30) days after written notice thereof.
10.3 Effect of Termination. Upon the expiration or termination of this
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Agreement:
10.3.1 This Agreement shall terminate;
10.3.2 Each party shall immediately pay to the other all amounts due
hereunder;
10.3.2 Each party shall, within thirty (30) days of such expiration or
termination (i) return to other party or destroy all Confidential
Information and all other material received from such other party; (ii)
remove or terminate all links on the VerticalNet Site to the Junglee
Comparison Shopping Service; and (iii) provide the other party with a
signed written statement certifying that it has complied with the
foregoing obligations.
10.3.3 All rights granted by Junglee hereunder to VerticalNet shall terminate.
10.3.4 Sections 3.2, 4.3, 4.4, 6, 7, 8, 9, 10 and 11 shall survive the
expiration or termination of this Agreement for any reason.
11. MISCELLANEOUS
11.1 Indemnification. Junglee and VerticalNet shall indemnify and hold
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harmless each other, and their respective directors, officers,
employees, and agents, from and against all claims, losses, damages and
expenses (including reasonable attorney's fees) resulting from the
breach of any agreement, representation or warranty set forth herein.
11.2 Injunctive Relief. The parties acknowledge that the breach or
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threatened breach of Sections 3.2 or 7 would cause irreparable harm to
the non-breaching party, the extent of which would be difficult to
ascertain. Accordingly, each party agrees that, in addition to any
other remedies to which a party may be legally entitled, a party may
seek immediate injunctive relief in the event of a breach or threatened
breach of such sections by the other party or any of the other party's
employees or subcontractors.
11.3 Assignment. This Agreement will be binding upon and inure to the
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benefit of the parties hereto and their permitted successors and
assigns. Neither party may assign or otherwise transfer this Agreement
without the other party's prior written consent. Notwithstanding the
prior sentence, VerticalNet may transfer or assign its rights and
delegate its obligations under this Agreement, without Junglee's
consent and without payment of additional fees or charge, to (i) a
purchaser of all or substantially all of the assigning party's stock or
assets (ii) an entity with which the assigning party consolidates or
merges, or (iii) any direct or indirect wholly-owned subsidiary of
VerticalNet, provided that such purchaser, entity or subsidiary agrees
in writing to be bound by this Agreement.
11.4 Waiver and Amendment. No modification, amendment or waiver of any
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provision of this Agreement shall be effective unless in writing and
signed by the party to be charged. No failure or delay by either party
in exercising any right, power, or remedy under this Agreement shall
operate as a waiver of any such right, power or remedy.
11.5 Choice of Law; Jurisdiction, Venue. This Agreement shall be governed by
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the laws of the State of California.
11.6 Notices, etc. Any notice required or permitted by this Agreement shall
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be deemed given if delivered by registered mail, postage prepaid,
addressed to the other party at the address shown at the beginning of
this Agreement or at such other address for which such party gives
notice hereunder. Delivery shall be deemed effective three (3) days
after deposit with postal authorities.
11.7 Independent Contractors. The parties are independent contractors with
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respect to each other. Each party is not and shall not be deemed to be
an employee, agent, partner, joint venturer or legal representative of
the other for any purpose and shall not have any right, power or
authority to create any obligation or responsibility on behalf of the
other.
11.8 Severability. If any provision of this Agreement shall be held by a
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court of competent jurisdiction to be contrary to law, such provision
shall be changed and interpreted so as to best accomplish the
objectives of the original provision to the fullest extent allowed by
law
and the remaining provisions of this Agreement shall remain in full
force and effect.
11.9 Complete Understanding. This Agreement, including all Exhibits attached
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hereto and hereby incorporated by reference, constitutes the final,
complete and exclusive agreement between the parties with respect to
the subject matter hereof, and supersedes any prior or contemporaneous
agreement, either written or oral.
11.10 Force Majeure. Except with respect to obligations to make payments
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hereunder, neither party shall be deemed in default hereunder, nor
shall it hold the other party responsible for, any cessation,
interruption or delay in the performance of its obligations hereunder
due to causes beyond its reasonable control including, but not limited
to: earthquake, flood, fire, storm or other natural disaster, act of
God, labor controversy or threat thereof, civil disturbance or
commotion, disruption of the public markets, war or armed conflict or
the inability to obtain sufficient material, supplies, labor,
transportation, power or other essential commodity or service required
in the conduct of its business, including internet access, or any
change in or the adoption of any law, ordinance, rule, regulation,
order, judgment or decree.
The party claiming Force Majeure shall promptly notify the other party
of the termination of such event. During the period that the
performance by Junglee of its obligations under this Agreement has been
suspended by reason of an event of Force Majeure, VerticalNet may
likewise suspend its payment obligations hereunder. In the event that
the duration of any Force Majeure suspending the performance of
Junglee's obligations exceeds _____ days, VerticalNet shall have the
option to terminate this Agreement, by providing written notice of such
termination, which shall be effective upon delivery of such notice and
VerticalNet,'s payment obligation hereunder shall be limited to that
portion of the Advertising Fee that relate to the percentage of the
Term that has been completed. In the event of such termination, Junglee
shall be obligated to pay to VerticalNet any Merchant Fee that accrued
prior to the effective time of such termination.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereby execute this Agreement as of the
Effective Date.
Accepted by:
JUNGLEE CORP.
By: ________________________
Name:
Title:
Address:
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0000 Xxxxx Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
Ph: (000) 000-0000
Fax: (000) 000-0000
VerticalNet, Inc.
By: ___________________________
Name: _________________________
Title: ________________________
Address:
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0 Xxxxxx Xxxxx Xxxxx
Xxxxx #000
Xxxxxxx, XX 00000
