Marketplace Agreement - E-centives Inc. and Vizzavi Europe Ltd.
E-CENTIVES MARKETPLACE AGREEMENT
This MARKETPLACE AGREEMENT, including the Attachments hereto (the "Agreement"),
is made June 27, 2001, by and between e-centives, Inc. ("e-centives"), a
Delaware corporation with principal offices at 6901 Rockledge Drive, Seventh
Floor, Bethesda, MD 20817 and Vizzavi Europe Limited ("Vizzavi"), an English
company with principal offices at Shell Mex House, 80 Strand, London WC2R 0RJ,
United Kingdom.
RECITALS
e-centives utilizes its technology to provide Internet and mobile telephony
commerce and merchandising services, and Vizzavi desires to retain e-centives to
provide such services for Vizzavi's web sites in accordance with the terms and
conditions of this Agreement.
NOW THEREFORE, e-centives and Vizzavi agree as follows:
GROUP BENEFIT
e-centives acknowledges that all rights granted to Vizzavi hereunder are for the
benefit of Vizzavi and for the additional purpose of conferring the same benefit
on any Vizzavi Group members. e-centives acknowledges that the rights of Vizzavi
and the obligations of e-centives under this Agreement are also respectively
rights of and obligations owed to any Vizzavi Group member and that any loss,
damage, cost or liability incurred by any Vizzavi Group member shall also be and
shall be deemed to have been incurred by Vizzavi which may institute and
maintain legal or other proceedings in its own name against e-centives for
compensation, damages and all other remedies of whatsoever nature in respect
thereof in all respects as if Vizzavi had incurred the same, subject to any
applicable limitations contained in this Agreement. Vizzavi and e-centives may
by agreement amend this Agreement without obtaining the consent of the Vizzavi's
Group, notwithstanding that any such amendment may vary any rights or benefits
conferred on the Vizzavi's Group.
AGREEMENT
In consideration of the foregoing and the mutual promises contained herein the
parties agree as follows:
1. DEFINITIONS.
1.1 "CATEGORY" means the category(s) defined in Attachment B.
1.2 "CONTENT" means any content provided by Vizzavi, including any
advertisement to be displayed on the Marketplace or other
content provided by Vizzavi pursuant to this Agreement, and
delivered in electronic form by Vizzavi to e-centives for use
in the Marketplace.
1.3 "CONTROL PANEL" means the tool used by Vizzavi to customize
the configuration of certain features in the e-centives
Commerce Engine.
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1.4 "DATA" means any information provided by e-centives pursuant
to this Agreement, including, but not limited to, any Merchant
product and price information. This does not include
information generated through Vizzavi's internal information
processing systems.
1.5 "EARLY RELEASE DATE" means with respect to each country the
date specified as such in the Roll Out Plan.
1.6 "EARLY RELEASE LAUNCH" means that a Marketplace meets the
functional description set out in Attachment B, and is ready
for Soft Launch save that notwithstanding e-centives'
compliance with its obligations under this Agreement there are
insufficient fully integrated Merchants to meet the Merchant
recruitment criteria for Soft Launch.
1.7 "E-CENTIVES COMMERCE ENGINE" means the version of e-centives'
proprietary Internet and mobile telephony commerce and
merchandising services located on e-centives' servers. The
e-centives Commerce Engine shall include the following
functionalities:
1.7.1 "DEFINITIVE TAXONOMY" means e-centives' list of
categories and the hierarchy of those categories.
This may change from time to time, at e-centives'
sole discretion, as the needs of the market evolve,
save to the extent that there is a material impact
upon the Categories.
1.7.2 "PRODUCT FINDER" means the product search component
of the e-centives Commerce Engine that produces
search results of merchants' product listings and
information.
1.7.3 "PRODUCT MERCHANDISER" means the system that can
display dynamic, targeted Featured Products through
POPs, as defined below.
1.7.4 "MERCHANT BOOSTING" means (i), with respect to the
Product Finder, the ability to increase the
visibility of the product listings of specific
Merchants by boosting such Merchants products to the
top of the query result set (boosting only applies to
products within the same relevance band (i.e., a
Merchant's listing can be boosted only if that
listing is of greater or equal relevance to another
Merchant's listing)); or (ii), with respect to the
Product Merchandiser, the ability to increase
visibility of specific Merchants in POPs.
1.7.5 "MERCHANT SUPPRESSION" means the ability to filter
specific Merchants from the Product Finder and
Product Merchandiser databases.
1.8 "E-CENTIVES NETWORK" means the searchable product information
database, the contents of which e-centives maintains the right
to control and modify in accordance with the terms of this
Agreement.
1.9 "EFFECTIVE DATE" means 26 June 2001.
1.10 "FEATURED PRODUCT" means a product offer created for and
displayed on the Marketplace, mCommerce Service or POPs.
1.11 "HARD LAUNCH" means that the mCommerce Service meets the
functional description set out in Attachment B, and that the
Marketplace and, to the extent achieved by e-centives using
its best efforts, the mCommerce Service, satisfies at least
the following criteria:
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1.11.1 In United Kingdom: products from no less than two (2)
fully integrated Merchants in each of the fourteen
(14) Categories.
1.11.2 In France: products from no less than two (2) fully
integrated Merchants in each of the fourteen (14)
Categories.
1.11.3 In Germany: products from no less than two (2) fully
integrated Merchants in each of the fourteen (14)
Categories.
1.11.4 In Netherlands: products from no less than two (2)
fully integrated Merchants in each of the fourteen
(14) Categories.
1.12 "MARKETPLACE" means the set of world-wide-web pages hosted by
e-centives through which Vizzavi Users shall be able to access
the e-centives Commerce Engine.
1.13 "mCOMMERCE SERVICE" means the WML interface hosted by
e-centives through which Vizzavi Users may access the
e-centives Commerce Engine. The mCommerce Service provides a
reduced service with a subset of Categories and only displays
product offers from Merchants as described in Attachment B, as
may be amended from time to time by agreement between the
parties.
1.14 "MERCHANT" means any merchant who has entered into an
e-centives Merchant Agreement with e-centives and is available
to Vizzavi Users through the Marketplace and the mCommerce
Service.
1.15 "MERCHANT FEES" means revenue received by e-centives, from
Merchants' Purchase Transaction Fees, Qualified Referrals
fees, Omega Search fees or any other revenue model as agreed
by and between e-centives and Merchants. Merchant Fees shall
be reduced by any credits and allowances necessarily issued by
e-centives to Merchants.
1.16 "OMEGA SERVICES" means an interface to the e-centives Network
to be used in conjunction with a Web search query that
provides highly targeted product and product category search
results.
1.17 "POINTS OF PURCHASE" or "POPS" means all visual
representations and any other direct link to Merchant sites
served by e-centives in which certain products are featured in
the Marketplace or throughout Vizzavi's site in areas and in a
manner authorized by Vizzavi.
1.18 "PURCHASE TRANSACTION FEES" means charges payable by Merchants
to e-centives for each transaction conducted via the
Marketplace, the mCommerce Service, or POPs.
1.19 "QUALIFIED REFERRAL" means a Vizzavi User's click on any link
to a Merchant through the Marketplace, mCommerce Service or
POPs.
1.20 "ROLL OUT PLAN" means the deployment of the Services set forth
in Attachment B and in accordance with the time frames set
forth in Attachment C.
1.21 "SELLING SYSTEM" means the e-centives web-based proprietary
system used to author and publish Featured Products on the
Marketplace and POPs.
1.22 "SERVICE LEVEL AGREEMENT" or "SLA" means the document attached
hereto at Attachment E.
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1.23 "SERVICE CREDITS" means the service credits specified in
Attachment E.
1.24 "SERVICE LEVELS" means the service levels specified in
Attachment E.
1.25 "SERVICES" means the suite of software applications and
services provided by e-centives pursuant to the terms of this
Agreement in the countries specified in Attachment A,
comprising each of the applications listed in Attachment B,
and the training, support, merchant recruitment and other
services provided by e-centives pursuant to Section 4.
1.26 "SOFT LAUNCH" means that the Marketplace satisfies at least
the following criteria:
1.26.1 In United Kingdom: products from no less than two (2)
fully integrated Merchants in twelve (12) of the top
fourteen (14) Categories.
1.26.2 In France: products from no less than two (2) fully
integrated Merchants in four (4) of the top seven (7)
Categories.
1.26.3 In Germany: products from no less than two (2) fully
integrated Merchants in four (4) of the top seven (7)
Categories.
1.26.4 In Holland: products from no less than two (2) fully
integrated Merchants in three (3) of the top seven
(7) Categories.
1.27 "TARGET LAUNCH DATE" means with respect to each country the
date specified as such in the Roll Out Plan.
1.28 "VIZZAVI GROUP" means the group comprising of Vizzavi Limited
(proposed to be re-named Vizzavi Europe Group plc) and Vizzavi
Europe Holdings B.V. (together "VIZZAVI PORTAL") and any
subsidiaries of either Vizzavi Limited or Vizzavi Europe
Holdings B.V. from time to time. The term "subsidiary" shall
have the meaning given to such term in Section 736 of the
Companies Act 1985 (as amended). Vizzavi Portal is an
independently managed joint venture jointly owned by Vodafone
European Portal Limited and VivendiNet UK Limited.
1.29 "VIZZAVI USER" means an end user of Vizzavi.
1.30 "VIZZAVI SITE" means website(s) owned and operated by or on
behalf of Vizzavi providing access to the Marketplace and
listed in Attachment A.
1.31 "WORKING DAY" means 08.30 to 17.30 Monday to Friday UK time,
excluding public holidays in England.
2. THE SERVICES.
2.1 FUNCTIONALITY. e-centives shall provide to Vizzavi the
functionality set forth in this Agreement and Attachment B.
2.2 IMPLEMENTATION.
2.2.1 e-centives shall configure and launch each
Marketplace and mCommerce Service in accordance with
the Roll Out Plan. Vizzavi shall provide access to
key decision
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makers as reasonably required by e-centives to
configure and launch each Marketplace and mCommerce
Service.
2.2.2 Once e-centives has in writing notified Vizzavi that
(for Early Release Launch) the Marketplace and (for
Hard Launch) the mCommerce Service has been
successfully configured and is ready for Early
Release Launch or Hard Launch (each a "Configuration
Launch Deliverable"), Vizzavi shall with the
reasonable assistance of e-centives promptly perform
its own reasonable quality assurance testing to
establish whether that Marketplace and (where
applicable) mCommerce Service operates in all
material respects with the functionality set forth in
Attachment B ("Acceptance Testing") provided always
that e-centives shall not notify Vizzavi pursuant to
this Section 2.2.2 in relation to the Early Release
Launch earlier than ten (10) working days prior to
the Early Release Date. e-centives shall ensure that
Vizzavi has at least ten (10) working days to perform
Acceptance Testing prior to the Early Release Date
for the Marketplace and the Hard Launch Target Launch
Date for the mCommerce Service identified in the Roll
Out Plan.
2.2.3 Once e-centives has in writing notified Vizzavi that
the Marketplace and (where applicable) the mCommerce
Service is ready for Soft Launch or Hard Launch (each
a "Merchant Launch Deliverable" and together with the
Configuration Launch Deliverables, the "Launch
Deliverables"), Vizzavi shall with the reasonable
assistance of e-centives promptly perform its own
reasonable quality assurance testing to establish
whether that Marketplace and (where applicable)
mCommerce Service meets the criteria for Soft Launch
or Hard Launch, as the case may be ("Merchant
Verification Testing"). e-centives shall ensure that
Vizzavi has at least five (5) working days to perform
Merchant Verification Testing prior to the Target
Launch Date identified in the Roll Out Plan for the
Marketplace and (where applicable) the mCommerce
Service.
2.2.4 Provided that the Launch Deliverable passes
Acceptance Testing or Merchant Verification Testing
(as applicable), Vizzavi shall in writing notify
e-centives that it has accepted that Launch
Deliverable ("Acceptance"). Upon Acceptance
e-centives will make the production Marketplace URL
and (for Hard Launch) the mCommerce Service URL
(together with the Marketplace URL, the "URLs")
available to Vizzavi. Without prejudice to any other
rights of Vizzavi under this Agreement or otherwise,
e-centives shall when required by Vizzavi make the
URLs available to Vizzavi notwithstanding that a
Launch Deliverable has failed Acceptance Testing, and
Vizzavi reserves the right to implement that Launch
Deliverable in such circumstances provided that if
Vizzavi makes any Launch Deliverable available to
Vizzavi Users then, notwithstanding that Vizzavi has
not Accepted that Launch Deliverable, Vizzavi shall
be deemed to have Accepted that Launch Deliverable
pursuant to this Section 2.2.4.
2.2.5 If the Launch Deliverable shall fail Acceptance
Testing or Merchant Verification Testing, Vizzavi
shall notify e-centives in sufficient detail in
writing of the grounds of such failure, and
e-centives shall remedy such failure within sixty
(60) days of Vizzavi's notification of Acceptance
Testing or Merchant Verification Testing failure.
2.3 UPGRADES. During the Term of this Agreement, e-centives shall
provide to Vizzavi, at no charge, any enhancements, features,
or functionality for the applications comprising the
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Services that are generally available to all e-centives'
customers as soon as such enhancements, features, or
functionality become commercially available as part of
e-centives' standard product offering upgrades. During the
Term of the Agreement, any such additional products, features
or functionality that e-centives makes commercially available
for additional fees shall be made available to Vizzavi upon
most favored customer terms.
2.4 ACCESS
2.4.1 Vizzavi will use its best efforts to install and
prominently display links from the Vizzavi Site to
the Marketplace (each a "Link"). Vizzavi will
maintain the Vizzavi Site, promote the Marketplace,
and encourage visitors to the Vizzavi Site to follow
Links to the Marketplace on a continuing basis.
2.4.2 Subject to the terms and conditions of this
Agreement, e-centives hereby grants Vizzavi the right
to use the Data only for its own internal business
purposes. Vizzavi may not use the Data for any other
purpose and the Data shall be deemed Proprietary
Information of e-centives (as defined herein).
2.4.3 Unless otherwise provided in this Agreement, Vizzavi
and Vizzavi Users will be fully responsible for all
the necessary hardware, software, connections to the
Internet, and other items needed for accessing the
e-centives Commerce Engine, and all costs associated
therewith.
2.5 GRANT OF LICENSE. e-centives hereby grants Vizzavi a
worldwide, non-exclusive, non-sub-licensable, revocable
license to use, without modification, the Services,
exclusively for service through the Vizzavi Site (save that
Vizzavi shall not actively promote the Services for broadband
use during the first year of this Agreement and if during that
period the parties become aware that broadband traffic through
the Vizzavi Site is overwhelming e-centives' ability to
provide the Services in accordance with this Agreement, the
parties shall work together to agree a plan to resolve the
problem.). This license shall expire upon the termination of
this Agreement. Vizzavi may not modify, copy, distribute,
reproduce, use or allow access to any component of the
e-centives Commerce Engine except as explicitly permitted
under this Agreement. All rights not expressly granted to
Vizzavi are retained by e-centives or its licensors.
2.6 CONTENT LICENSE. Vizzavi grants e-centives a worldwide,
non-exclusive, royalty-free revocable license during the term
of this Agreement to use, reproduce, electronically
distribute, publicly display, and publicly perform the Content
solely as strictly necessary to perform its obligations to
Vizzavi pursuant to this Agreement. e-centives acknowledges
that e-centives will not acquire any right, title or interest
in or to the Content, except for the licenses provided herein.
All rights not expressly granted to e-centives are retained by
Vizzavi or its licensors.
2.7 mCOMMERCE LICENSE. e-centives hereby grants Vizzavi a
worldwide, non-exclusive, non-sub-licensable, revocable
license to use, without modification, the Services,
exclusively for mobile telephony service in the United
Kingdom, France, the Netherlands and Germany.
2.8 ON-LINE REPORTING. Vizzavi will have access to e-centives'
on-line reporting system. The standard reports and contents
thereof are set forth in Attachment B.
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2.9 SERVICE LEVELS.
2.9.1. Throughout the Term, e-centives shall provide the
Services at least at the Service Levels. e-centives
shall provide any new services at mutually
agreed-upon new service levels, if any, applicable to
such new services.
2.9.2 If at any time after the Effective Date the Services
are not supplied in accordance with the Service
Levels, e-centives shall, without prejudice to
Vizzavi's other rights and remedies solely for
material loss:
2.9.2.1 credit Vizzavi with Service Credits as set
forth in the SLA (which shall take effect as
an adjustment to the charges payable by
Vizzavi pursuant to Section 3);
2.9.2.2 arrange all additional resources necessary
to perform the Services in accordance with
the Service Levels as soon as possible and
at no additional charge to Vizzavi; and
2.9.2.3 use all reasonable efforts to promptly
remedy the cause of non-performance.
Vizzavi and e-centives both acknowledge and confirm
that the Service Credits shall be regarded as an
abatement of charges calculated as a reasonable
estimate of the immaterial loss suffered by Vizzavi as
a result of e-centives' failure to meet the Service
Levels and shall not be regarded as onerous or a
penalty.
2.10 OMEGA SERVICES. e-centives shall as required by Vizzavi from
time to time provide the Omega Services for the fees set forth
on Attachment C, provided, however, that Vizzavi must first
submit to e-centives all necessary information reasonably
requested, including, but not limited to, its search logs to
enable e-centives to map the Omega results. Vizzavi shall
promote the Omega Services as set forth on Attachment A.
3. PAYMENTS.
3.1 LICENSE FEES. Vizzavi shall pay e-centives an annual License
Fee as set forth on Attachment C for Vizzavi's use of the
Services.
3.2 MERCHANT FEES. Within six (6) working days after the close of
each calendar month, e-centives will report in good faith to
Vizzavi on an itemized basis those Merchant Fees arising
during that calendar month that have been reported to
e-centives.
3.3 In relation to each Marketplace, e-centives shall after the
first anniversary of the date that is the mid-point between
the Soft Launch and the Hard Launch of that Marketplace be
entitled to retain the percentage of Merchant Fees as set
forth on Attachment C. In relation to Omega Services,
e-centives shall immediately following the Soft Launch of that
Marketplace be entitled to retain the percentage of Merchant
Fees arising thereafter as set forth on Attachment C. Without
prejudice to the foregoing, all Merchant Fees shall from the
Effective Date be paid by e-centives to Vizzavi within sixty
(60) days of invoice from Vizzavi.
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3.4 Unless otherwise expressly stated in this Agreement, all
payments under this Agreement shall be paid within thirty (30)
days of receipt of a valid invoice relating thereto.
3.5 Each party shall be responsible for and shall pay when due all
sales, use and other taxes and similar charges based on or
arising from payments made by such party under this Agreement,
other than taxes based on the other party's income. Without
prejudice to the parties other rights and remedies late
payments will where not subject to bona fide dispute bear
interest on a day to day basis (as well after as before any
judgment) from the date or last date for payment thereof to
the date of actual payment (both dates inclusive) at the rate
of one percent (1%) above the base rate of National
Westminster Bank plc from time to time in force.
4. ADDITIONAL SERVICES.
4.1 MERCHANT RECRUITMENT. e-centives shall ensure that each
Marketplace and mCommerce Service at all times following Soft
Launch, and thereafter following Hard Launch, (each referred
to hereafter in this Section 4 as "LAUNCH") has at least the
Category coverage required for Launch. e-centives shall use
its best efforts to itself contract with on reasonable
commercial terms and fully integrate (within 11 working days
of the receipt of materially correctly formatted PML files)
products from no less than eight (8) additional Merchants per
country per quarter from Soft Launch in the United Kingdom,
Germany and France and five (5) additional Merchants per
quarter from Soft Launch in the Netherlands, and make them
available for use on the Vizzavi Site. This obligation to
recruit additional Merchants shall continue such that a
minimum of seventy (70) Merchants with products available in
each of the United Kingdom, Germany, and France is maintained,
and forty (40) in the Netherlands. If the number of Merchants
signed and integrated in any country in any quarter exceeds
this minimum, such number shall be applied toward that
country's future Merchant recruitment commitments. Without
prejudice to such obligation upon e-centives, e-centives shall
use its best efforts to recruit entities specified from time
to time in good faith by Vizzavi provided that Vizzavi shall
not be obliged to specify any such entities. Vizzavi's initial
specifications for e-centives' Merchant recruitment as at the
Effective Date are set out in Attachment F.
Without prejudice to the foregoing, the parties acknowledge
that Vizzavi shall have the right to exclude any Merchant from
any Marketplace or mCommerce Service wherever reasonable and
such Merchant shall not be deemed to be a Merchant recruited
by e-centives for the purposes of calculating e-centives
attainment of the above targets.
Notwithstanding any provision of this Agreement and subject to
the conditions in this Section, Vizzavi may negotiate on its
own with any entity, including any existing Merchant,
regarding terms for Vizzavi Users and fees due to Vizzavi for
inclusion in the e-centives Network provided to Vizzavi
hereunder. e-centives shall reflect these terms in its
contractual arrangements with the Merchants, provided such
terms do not have a materially detrimental effect upon
e-centives' standard merchant terms as provided to Vizzavi
from time to time. If so required by Vizzavi, e-centives shall
not negotiate directly with any entity with respect to the
Vizzavi Marketplace and mCommerce Service and if such
requirement by Vizzavi significantly reduces available
merchant prospects to e-centives, there shall be a reasonable
reduction in the Merchant recruitment targets provided above
as agreed in good faith between the parties at the relevant
time.
4.2 MERCHANT BOOSTING AND MERCHANT SUPPRESSION. With respect to
Product Finder, Vizzavi may designate those Merchants it
wishes to boost or suppress within the Product Finder search
results under the following guidelines: Vizzavi shall provide
e-centives with a list of the
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Merchants to be affected once a month on or before the last
business day of each month. Vizzavi may designate additional
merchants more frequently than once a month per country (twice
per month per country during each of November and December)
for the additional fees as set forth on Attachment C.
e-centives shall provide the Services in accordance with
Attachment B.
4.3 POPS. With respect to Product Merchandiser, Vizzavi may
designate those Merchants and/or Featured Products it wishes
to boost in POPs. e-centives shall provide the Services in
accordance with Attachment B.
4.4 TRAINING. e-centives shall provide to Vizzavi the training
services set forth in Attachment B.
4.5 SUPPORT, MAINTENANCE AND CUSTOMER CARE. e-centives shall
provide to Vizzavi the support, maintenance and customer care
services set forth in Attachment B in accordance with
Attachment E.
5. WARRANTIES AND DISCLAIMERS.
5.1 VIZZAVI WARRANTIES. Vizzavi warrants that: (i) it has full
power and authority to enter into and is able to fulfill its
obligations under this Agreement; (ii) it will use all
commercially reasonable efforts to facilitate e-centives'
fulfillment of its obligations under this Agreement; and (iii)
it will seek all necessary governmental approvals required to
effectuate this Agreement. Without limiting the generality of
the foregoing, Vizzavi warrants to e-centives that it has the
right to provide e-centives with the Content and that such
Content will not violate any applicable laws or regulations,
including without limitation, copyright, trademark, obscenity,
privacy and defamation laws.
5.2 E-CENTIVES WARRANTIES. e-centives warrants that (i) it has
full power and authority to enter into and is able to fulfill
its obligations under this Agreement; (ii) in providing
written notification pursuant to Section 10.8.1 it is fully
satisfied that Vizzavi is able to fulfill its financial
obligations under this Agreement; (iii) that it shall perform
the Services in accordance with all applicable laws or
regulations; (iv) that it shall provide the Services with
reasonable skill and care; (v) that the content and materials
of the Services, including without limitation the Marketplace
and excluding the Content, will not violate any applicable
laws or regulations, including without limitation, copyright,
trademark, obscenity, privacy and defamation laws; and (vi)
that the Services will comply in all material respects with
the functional specifications set out in Attachment B.
e-centives does not warrant that the e-centives Commerce
Engine will meet all of Vizzavi's requirements or that
performance of the e-centives Commerce Engine will be
uninterrupted or error-free.
5.3 FINANCIAL OBLIGATIONS WARRANTY. Each party warrants that it
will not take any willful or intentional steps or measures to
avoid its financial obligations as set forth in this
Agreement.
5.4 THE WARRANTIES SET OUT IN THIS SECTION 5 ARE EXCLUSIVE AND IN
LIEU OF ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS,
IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE,
AND NONINFRINGEMENT.
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6. INDEMNIFICATION
6.1 VIZZAVI INDEMNITY. Vizzavi shall defend and/or settle, and
hold e-centives harmless against any losses, costs, damages or
expenses (including reasonable legal fees on a solicitor and
client basis) actually incurred arising in connection with (i)
the services provided by Vizzavi through the Vizzavi Site or
representations, claims or statements pertaining thereto; and
(ii) which, if true, would constitute a breach of any warranty
made by Vizzavi under Section 5.1, 5.3 or 8, provided, that
e-centives promptly notifies Vizzavi in writing of any such
claim and promptly tenders the sole control of the defense and
settlement of any such claim to Vizzavi at Vizzavi's expense
and with Vizzavi's choice of counsel. e-centives shall
cooperate with Vizzavi, at Vizzavi's expense, in defending or
settling such claim. Vizzavi shall not reimburse e-centives
for any expenses incurred by e-centives without the prior
written approval of Vizzavi, which shall not be unreasonably
withheld or delayed.
6.2 E-CENTIVES INDEMNITY. e-centives shall defend and/or settle,
and hold Vizzavi harmless against any losses, costs, damages
or expenses (including reasonable legal fees on a solicitor
and client basis) arising in connection with (i) any breach of
any warranty made by e-centives under Section 5.2 or 5.3; (ii)
any act or omission by e-centives beyond the limited right of
use granted by Vizzavi pursuant to Section 8; or (iii) any
third party claim brought against Vizzavi alleging any part of
the Services infringes the rights of any third party; provided
that Vizzavi promptly notifies e-centives in writing of any
such claim and promptly tenders the sole control of the
defense and settlement of any such claim to e-centives at
e-centives' expense and with e-centives' choice of counsel.
Vizzavi shall cooperate with e-centives, at e-centives'
expense, in defending or settling such claim and Vizzavi may
join in defense with counsel of its choice at its own expense.
e-centives shall not reimburse Vizzavi for any expenses
incurred by Vizzavi without the prior written approval of
e-centives, which shall not be unreasonably withheld or
delayed.
7. PROPRIETARY RIGHTS.
7.1 Vizzavi acknowledges that, as between the parties, e-centives
retains all right, title, and interest in and to the
e-centives Commerce Engine and all components thereof,
including but not limited to the Marketplace (except Content),
the Data, the Selling System, the Control Panel, the Activity
Information, the mCommerce Service and Omega Services.
7.2 Nothing in this Agreement shall give Vizzavi any right or
license to (except pursuant to Sections 2.4.2, 2.5 and 2.7)
use, reproduce, display or distribute (electronically or
otherwise) the e-centives Commerce Engine and all components
thereof, including but not limited to the Selling System,
on-line Reporting System and the Control Panel. Vizzavi shall
not decompile or reverse engineer anything e-centives provides
to Vizzavi hereunder or in any way attempt to derive source
code therefrom.
7.3 e-centives reserves the right to reasonably display e-centives
and/or third party copyright notices, trademarks, logos,
slogans and other identifiers and notices on the Marketplace,
the mCommerce Service, the on-line Reporting System, the
Selling System and the Control Panel.
8. LOGOS. VIZZAVI HEREBY GRANTS E-CENTIVES THE RIGHT TO USE ANY VIZZAVI
TRADEMARKS AND LOGOS AS STRICTLY NECESSARY TO PERFORM THE
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SERVICES IN ACCORDANCE WITH THIS AGREEMENT. E-CENTIVES SHALL ONLY
OTHERWISE USE VIZZAVI'S TRADEMARKS AND LOGOS WITH THE PRIOR WRITTEN
APPROVAL OF VIZZAVI. USE OF THE VIZZAVI TRADEMARKS HEREUNDER AND ANY
ASSOCIATED GOODWILL SHALL INURE SOLELY TO VIZZAVI. VIZZAVI HEREBY
WARRANTS TO E-CENTIVES THAT E-CENTIVES' USE OF SUCH TRADEMARKS AND
LOGOS PURSUANT TO THIS SECTION 8 WILL NOT INFRINGE ANY THIRD PARTY'S
RIGHTS.
9. E-CENTIVES COMMERCE ENGINE ACTIVITY INFORMATION. e-centives shall
provide Vizzavi with aggregate data pertaining to Vizzavi Users' access
to the Marketplace, including such data as date and time of visit,
pages viewed, and time spent at the Marketplace ("Activity
Information") collected by e-centives during the term of this Agreement
in accordance with requirements set out in Attachment B. Vizzavi may
use and disclose such information, in aggregate form only, for any
purpose. Vizzavi may use such information in non-aggregate form only
for its internal business purposes.
10. TERM AND TERMINATION OF AGREEMENT.
10.1 Unless terminated earlier as provided below, this Agreement
shall have an initial term extending from the Effective Date
for a period of two (2) years (the "Initial Term"), with an
automatic extension to the third anniversary of the Hard
Launch of the final Marketplace identified in Attachment C
(collectively, the "Term"). To the extent that the Term in
respect of any Marketplace is greater than three (3) years
following Hard Launch, Vizzavi shall pay to e-centives fees as
set forth in Attachment C pro-rated for the period that such
Term exceeds three (3) years.
10.2 Either party may terminate this Agreement (i) on notice if the
other party breaches any of its material obligations hereunder
and in the case of remediable breach fails to cure such breach
within thirty (30) days of written notice thereof; or (ii) if
the other party shall become insolvent (except for the
purposes of corporate restructuring or amalgamation) under
applicable laws.
10.3 Vizzavi may on no less than ninety (90) days' written notice
to e-centives, to expire no earlier than the expiry of the
Initial Term, terminate this Agreement for convenience with
effect from (i) any date following expiry of the Initial Term;
or (ii) in respect of each Marketplace and mCommerce Service,
the second anniversary of the Hard Launch of each such
Marketplace and mCommerce Service.
10.4 Without prejudice to Section 10.3, Vizzavi may terminate this
Agreement for convenience at any time upon written notice to
e-centives provided that if such termination shall take
effect:
10.4.1 during the Initial Term, Vizzavi shall pay to
e-centives a sum equal to the difference between the
License Fees already paid by Vizzavi and the License
Fees payable for the period up to the expiry of the
Initial Term; or
10.4.2 after the expiry of the Initial Term, Vizzavi shall
pay to e-centives a sum equal to the License Fees
payable for the period of up to ninety (90) days
immediately following service of notice by Vizzavi
(such figure to be determined by reference to the
period of notice actually given by Vizzavi), in lieu
of ninety (90) days' notice of termination by
Vizzavi.
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10.5 Vizzavi may at any time by notice in writing terminate this
Agreement as from the date of service of such notice if
e-centives agrees a change of control, as defined by Section
416 of the Income and Corporation Taxes Act 1988, in
e-centives such that e-centives will be controlled by a
competitor of Vizzavi. Vizzavi shall only be permitted to
exercise its rights pursuant to this Section 10.5 for six (6)
months after any such change of control occurs and shall not
be permitted to exercise such rights where Vizzavi has agreed
in advance in writing to the particular change of control and
such change of control takes place as proposed. e-centives
shall provide to Vizzavi reasonable notice prior to any change
of control taking place.
10.6 In the event of termination of this Agreement for any reason:
(i) unless otherwise expressly stated to the contrary in this
Agreement, e-centives shall reimburse to Vizzavi any advance
payments made by Vizzavi in respect of any period(s) following
termination; (ii) all license rights granted under this
Agreement shall terminate; (iii) each party shall immediately
pay to the other party all amounts due and outstanding as of
the date of such termination; (iv) e-centives shall provide
such transition assistance as may be required by Vizzavi and
may charge Vizzavi at its then standard rates; and (v) each
party shall return to the other party, or destroy and certify
the destruction of, all Proprietary Information of the other
party.
10.7 Sections 1, 5, 6, 7, 10.7, 11, 12, 13 and 14 will survive any
termination or expiration of this Agreement. Termination of
this Agreement shall be without prejudice to the accrued
rights of either party.
10.8. Condition Precedent
10.8.1 The parties' rights and obligations under this
Agreement other than with regard to Section 12
(Confidentiality), are conditional upon:
10.8.1.1 e-centives within seven (7) days of the
Effective Date notifying Vizzavi in writing
that e-centives is satisfied that Vizzavi is
able to meet its financial obligations
herein; and
10.8.1.2 the Consulting Services Agreement of even
date herewith between the parties hereto
becoming unconditional pursuant to Section
4.1.1 thereof.
10.8.2 Vizzavi shall make reasonably sufficient information
available to e-centives to facilitate this Agreement
becoming unconditional pursuant to Section 10.8.1.
11. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE
LAW, IN NO EVENT WILL THE TOTAL LIABILITY OF EITHER PARTY ARISING OUT
OF THIS AGREEMENT EXCEED THE AMOUNT PAYABLE TO E-CENTIVES BY VIZZAVI
UNDER THIS AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE
LAW, NEITHER PARTY SHALL BE LIABLE FOR ANY LOST PROFITS OR REVENUES, OR
FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES,
INCLUDING DAMAGES FOR LOST DATA, HOWEVER CAUSED AND UNDER ANY THEORY OF
LIABILITY, INCLUDING BUT NOT LIMITED TO CONTRACT, TORT, PRODUCTS
LIABILITY, STRICT LIABILITY AND NEGLIGENCE, AND WHETHER OR NOT IT WAS
OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL
PURPOSE OF
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ANY LIMITED REMEDY. THIS SECTION 11 SHALL NOT APPLY TO (I) THE
INDEMNITIES SET OUT IN SECTION 6; (II) TO THE LIABILITY OF EITHER PARTY
ARISING IN CONNECTION WITH SECTION 12; (III) TO EITHER PARTY'S
LIABILITY FOR DEATH OR PERSONAL INJURY ARISING FROM NEGLIGENCE; OR (IV)
TO EITHER PARTY'S LIABILITY FOR FRAUDULENT MISREPRESENTATION.
12. CONFIDENTIALITY. Each party, including its agents, directors, officers,
partners, employees, and representatives, agrees that all code,
inventions, algorithms, know-how and ideas and all other business,
technical and financial information they obtain from the other are the
confidential property of the disclosing party ("PROPRIETARY
INFORMATION" of the disclosing party). Except as expressly and
unambiguously allowed herein, the receiving party will hold in
confidence and not use or disclose any Proprietary Information of the
disclosing party. The receiving party shall not be obligated under this
Section 12 with respect to information the receiving party can
document: (i) is or has become readily publicly available without
restriction through no fault of the receiving party or its employees or
agents; or (ii) is received without restriction from a third party
lawfully in possession of such information and lawfully empowered to
disclose such information; (iii) is rightfully in the possession of the
receiving party without restriction prior to its disclosure by the
other party; or (iv) is independently developed by the receiving party
without use of the disclosing party's Proprietary Information. The
receiving party may make disclosures required by law, regulation or
court or regulatory order provided the receiving party uses reasonable
efforts to limit disclosure and to obtain confidential treatment. The
parties acknowledge that breach of this Section 12 by the receiving
party shall cause the disclosing party irreparable harm and therefore,
without prejudice to any other remedies, the disclosing party shall be
entitled to equitable or injunctive relief as a remedy for such breach.
13. AUDIT.
13.1 Vizzavi's reputable third-party independent auditing firm
shall be entitled to inspect and audit e-centives' books of
account, invoices, and all supporting documentation relating
to e-centives' business with Vizzavi in connection with the
Services (the "Records") once every six (6) months during the
Term and for twelve (12) months afterwards on not less than
ten (10) working days written notice at any time during normal
business hours.
13.2 Should any such audit or inspection of the Records reveal that
Vizzavi has been overcharged or underpaid, e-centives shall
reimburse or pay, as the case may be, to Vizzavi the amount of
the overcharge or underpayment within fourteen (14) days of
receipt of notice.
13.3 Should the audit reveal that Vizzavi has been overcharged or
underpaid by five percent (5%) or more during the period
covered by the audit, e-centives shall reimburse Vizzavi for
the reasonable costs of the audit.
13.4 e-centives will afford to Vizzavi all reasonable assistance
and subject to Section 13.3 at Vizzavi's expense in the
carrying out of such audit, whilst Vizzavi and its auditor
will ensure that any information obtained in the course of the
audit concerning e-centives' business is kept in the strictest
confidence and not used for any purpose other than the proper
conduct of the audit.
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14 GENERAL.
14.1 For all purposes of this Agreement each party shall be and act
as an independent contractor and not as partner, joint
venturer, or agent of the other and shall not bind nor attempt
to bind the other to any contract.
14.2 Each party shall be excused from delay or failure in
performance caused by anything beyond such party's reasonable
control, including, without limitation, acts of God,
government action, compliance with laws, regulations, network
failures, error in the coding of electronic files, or software
limitations (where not provided pursuant to this Agreement),
or inability to obtain telecommunications services.
14.3 All notices under this Agreement shall be in writing, and
shall be deemed given when personally delivered, when sent by
confirmed fax, or five (5) days after being sent by prepaid,
certified or registered mail to the address of the party to be
noticed as set forth herein or such other address as such
party last provided to the other by written notice.
14.4 Neither party shall have any right or ability to assign,
transfer, or sublicense any obligations or benefit under this
Agreement without the written consent of the other, which
shall not be unreasonably withheld or delayed, and any such
attempt shall be void.
14.5 The failure of either party to enforce its rights under this
Agreement at any time for any period shall not be construed as
a waiver of such rights.
14.6 This Agreement supersedes all proposals, oral or written, all
negotiations, conversations, or discussions between or among
parties relating to the subject matter of this Agreement and
all past dealing or industry custom (unless made
fraudulently). No changes, modifications, or waivers
("Changes") are to be made to this Agreement unless evidenced
in writing and signed for and on behalf of both parties. All
documents comprising Changes must be appended to this
Agreement.
14.7 In the event that any provision of this Agreement shall be
determined to be illegal or unenforceable, that provision will
be limited or eliminated to the minimum extent necessary so
that this Agreement shall otherwise remain in full force and
effect and enforceable.
14.8 This Agreement shall be governed by and construed in
accordance with the laws of England and Wales and the parties
submit to the non-exclusive jurisdiction of the English
courts.
14.9 Subject to the rights granted to the Vizzavi Group hereunder,
a person who is not party to this Agreement shall have no
rights under the Contracts (Rights of Third Parties) Act 1999
to enforce any of the terms of this Agreement.
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14.10 Headings herein are for convenience of reference only and
shall in no way affect interpretation of the Agreement.
14.11 In the event of any inconsistency between the terms and
conditions of this Agreement and the Attachments, the terms
and conditions shall prevail, but only to the extent of the
inconsistency.
IN WITNESS WHEREOF, the parties hereto have authority to execute this Agreement
as of the date first above written.
VIZZAVI EUROPE LIMITED E-CENTIVES, INC.
Signature: /s/ EVAN NEWMARK Signature: /s/ KAMRAN AMJADI
----------------------- ------------------------
Name: Evan Newmark Name: Kamran Amjadi
Title: Chief Executive Officer Title: Chief Executive Officer
Date: July 2, 2001 Date: June 27, 2001
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ATTACHMENT A
VIZZAVI WEBSITE(S) AND PROMOTION
The web sites located at http://www.vizzavi.co.uk/, http://www.vizzavi.nl/,
http://www.vizzavi.fr/, http://www.vizzavi.de/ and such other successor or other
web site(s) owned or operated by Vizzavi in the United Kingdom, France, the
Netherlands and Germany.
Promotion of the Marketplace:
Throughout the Term of this Agreement, Vizzavi shall use commercially reasonable
efforts to:
1. Promote the Marketplace by providing permanent navigational and other
promotional links in prominent positions;
2. Use contextual POPs throughout other sections and pages of its web
sites to promote specific products and general shopping services;
3. Develop a marketing programme to promote the Vizzavi shopping
experience powered by e-centives; and
4. Work with e-centives to develop a merchant recruitment programme.
Unless otherwise determined by Vizzavi in its reasonable commercial discretion,
results from the Omega Services shall be visible above the fold on the first
page of all Search results.
Vizzavi will use its best efforts to encourage local Vizzavi Group members to
provide adequate office space and Internet and telephone access in their offices
to e-centives' sales personnel for a limited period of time in preparation for
Soft Launch as reasonably agreed between the parties.
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ATTACHMENT B
FUNCTIONALITY FOR THE MARKETPLACE
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ATTACHMENT C
FEES
<Table>
<S> <C>
LICENSE FEE: FOUR NATION, THREE-YEAR PACKAGE: UNITED KINGDOM, FRANCE, HOLLAND AND GERMANY
o $725,000 FOR ALL FOUR COUNTRIES FOR ONE YEAR OF SERVICES POST THE DATE
THAT IS THE MID-POINT BETWEEN THE SOFT LAUNCH AND THE HARD LAUNCH IN
EACH COUNTRY
o DUE AND PAYABLE IN TWELVE EQUAL INSTALLMENTS OF $60,416.66, UPON THE
EARLY RELEASE LAUNCH, SOFT LAUNCH AND HARD LAUNCH FOR EACH COUNTRY
o $112,500 FOR EACH COUNTRY FOR ONE YEAR OF SERVICES IN YEARS TWO AND
THREE FOLLOWING THE ANNIVERSARY OF THE DATE THAT IS THE MID-POINT
BETWEEN THE SOFT LAUNCH AND THE HARD LAUNCH FOR EACH COUNTRY, DUE AND
PAYABLE ON SUCH ANNIVERSARY DATE FOR EACH COUNTRY
VIZZAVI CUSTOMIZED GIF POPS DESIGN FEE: $20,000 PER POP
ADDITIONAL MERCHANT BOOSTING/SUPPRESSION: $5,000 PER ADDITIONAL IMPLEMENTED REQUEST FOR CHANGE TO CONFIGURATION
MERCHANT FEES: TOTAL 20% REVENUE SHARE OF PURCHASE TRANSACTION FEES OR QUALIFIED REFERRAL
FEES TO E-CENTIVES
OMEGA SERVICES FEES: TOTAL 50% REVENUE SHARE OF PURCHASE TRANSACTION FEES OR QUALIFIED REFERRAL
FEES DIRECTLY CONNECTED TO OMEGA SEARCHES TO E-CENTIVES
ADDITIONAL COUNTRIES: AS REQUIRED BY VIZZAVI CAPPED AS PER SCHEDULE 1 TO THIS ATTACHMENT C.
ADDITIONAL PRODUCTS: AS REQUIRED BY VIZZAVI CAPPED AS PER SCHEDULE 2 TO THIS ATTACHMENT C.
</Table>
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ROLL OUT OF MARKETPLACE
EARLY RELEASE DATES
United Kingdom: 15 August 2001;
France: 19 September 2001;
Holland: 11 September 2001;
Germany: 11 September 2001.
SOFT LAUNCH by or before:
In United Kingdom: 55 working days from the Effective Date;
In France: 130 working days from the Effective Date;
In Holland: 85 working days from the Effective Date;
In Germany: 85 working days from the Effective Date.
Each "Target Launch Dates"
HARD LAUNCH for each country is not later than 6 months after Target Launch Date
for Soft Launch.
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SCHEDULE 1
The following caps are guaranteed only until December 31, 2001. The parties
acknowledge that in all other respects the terms upon which any such services
may be provided by e-centives to Vizzavi are subject to the prior written
agreement of the parties. Vizzavi shall not be obliged to purchase services for
any additional countries.
SPAIN:
First year:
License Fee (ISF): $300,000
Revenue Share (commissions and qualified referrals):
Omega: 50:50
Second and third years:
License Fee (ISF): $200,000
Revenue Share (commissions and qualified referrals):
Product Finder and Merchandiser: 70:30
I.E., 70% to Vizzavi, 30% to e-centives
Omega: 50:50
ITALY:
First year:
License Fee (ISF): $300,000
Revenue Share (commissions and qualified referrals):
Omega: 50:50
Second and third years:
License Fee (ISF): $200,000
Revenue Share (commissions and qualified referrals):
Product Finder and Merchandiser: 70:30
I.E., 70% to Vizzavi, 30% to e-centives
Omega: 50:50
PORTUGAL:
First year
License Fee (ISF): $350,000
Revenue Share (commissions and qualified referrals):
Omega: 50:50
Second and third years:
License Fee (ISF): $275,000
Revenue Share (commissions and qualified referrals):
Product Finder and Merchandiser: 70:30
I.E., 70% to Vizzavi, 30% to e-centives
Omega: 50:50
GREECE:
First year:
License Fee (ISF): $400,000
Revenue Share (commissions and qualified referrals):
Omega: 50:50
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Second and third years:
License Fee (ISF): $275,000
Revenue Share (commissions and qualified referrals)
Product Finder and Merchandiser: 70:30
I.E., 70% to Vizzavi, 30% to e-centives
Omega: 50:50
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SCHEDULE 2
The following prices are guaranteed only until December 31, 2001 in the case of
the United Kingdom, and March 31, 2002 in France. The parties acknowledge that
in all other respects the terms upon which Product SpotLight may be provided by
e-centives to Vizzavi are subject to the prior written agreement of the parties.
Vizzavi shall not be obliged to purchase e-centives Product SpotLight product.
The following fees are for a six (6) month license of Product SpotLight.
SPOTLIGHT PRICING:
Monthly Price Per Base
Mailing Quantity Additional email Monthly Price
250,000 $0.060 $15,000
500,000 $0.045 $22,500
1,000,000 $0.035 $35,000
2,000,000 $0.030 $60,000
3,000,000 $0.025 $75,000
4,000,000 $0.021 $84,000
5,000,000 $0.018 $90,000
10,000,000 Bid Pricing
> Bid Pricing
BASE SERVICES:
o SET-UP FEE: $15,000 (one-off payment per country)
10.
o MINIMUM MONTHLY CHARGE (AS SPECIFIED ABOVE): $15,000 (excluding the
set-up fee)
11.
o REGISTRATION PAGE HOSTING ($4,000 per month). e-centives will host the
clients registration page: this means that the members will be able to
create/update their profile using an intuitive web-based interface.
12.
o ADDITIONAL REVISIONS TO TEMPLATE: Bid pricing, depending on the
complexity of the data or task.
13.
14.
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ATTACHMENT E
SERVICE LEVEL AGREEMENT
14.2
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ATTACHMENT F
MERCHANT TARGETS