E-Commerce Agreement - GSI Commerce Solutions Inc. and Palm Inc.
GSI COMMERCE SOLUTIONS, INC.
-----------------------
E-COMMERCE AGREEMENT
BETWEEN
GSI COMMERCE SOLUTIONS, INC.
AND
PALM, INC.
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E-COMMERCE AGREEMENT
This E-Commerce Agreement, dated as of June 14, 2002 , is made and
entered into by and between GSI Commerce Solutions, Inc., a Pennsylvania
corporation ("GSI"), and Palm, Inc., a Delaware corporation (the "Company").
Recitals
WHEREAS, GSI is in the business of, among other things, developing and
operating e-commerce businesses for retailers and manufacturers and providing
for those companies GSI's proprietary technology, Web Site design and
development capabilities, order processing capabilities, customer service
capabilities, fulfillment capabilities and centralized inventory management to
enable those companies to offer e-commerce to their customers;
WHEREAS, the Company is in the business of developing, manufacturing
and selling Palm Products (as defined below) and is the owner of the Company
Site (as defined below);
WHEREAS, the Company desires to have GSI create the Company Stores (as
defined below) that will offer Merchandise (as defined below) for sale and that
can be accessed directly through the Designated URLs (as defined below) or
through fixed links that will appear on pages of the Company Site, including the
Home Page (as defined below) of the Company Site;
WHEREAS, the Company has made a substantial investment to establish its
trade names among consumers and distributors so as to create a retail image
connoting a specific manner in which merchandise is presented and sold by the
Company;
WHEREAS, both the Company and GSI recognize that the overall success of
the Company Stores depends on consumers perceiving the Company Stores to be an
extension of the Company Site;
WHEREAS, the Company and GSI desire to have GSI provide to the Company
a complete solution by which the Company and/or its Affiliates will sell
Merchandise through the Internet during the Term (as defined below) of this
Agreement; and
WHEREAS, the Company desires to obtain e-commerce capability from GSI
in a manner that allows the Company to protect its Trademarks and that will
complement the Company Site.
NOW, THEREFORE, in reliance upon the above recitals (which are made a
part of the Agreement below) and in consideration of the mutual promises and
covenants contained in this Agreement, the Company and GSI (each a "Party" and
collectively, the "Parties"), intending to be legally bound, agree as follows:
Section 1. Definitions.
Whenever used in this Agreement, the following capitalized terms shall have the
following specified meanings:
1.1 "Affiliate" means, as to any Person, any other Person that,
directly or indirectly, is controlled by, is under common control with or
controls such Person, but only as long as such control exists. For this purpose,
control means ownership or voting rights over at least 50% of
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the outstanding voting or equity securities of the Person in question or the
power to direct or cause the direction of management or policies of such Person,
whether through voting securities, by contract or otherwise.
1.2 "Aggregate Information" means any information or data derived from
Customer Information which is not specific to a Person, does not refer to or
identify any specific Person, and cannot be used, alone or in conjunction with
any other information, to identify any specific Person.
1.3 "Company Content" means the following content or information owned
or controlled (e.g., by license or otherwise) by the Company or its Affiliates
and furnished by the Company or its Affiliates to GSI in accordance with the
terms of this Agreement: text, graphics, photographs, video, audio and/or other
data or information and e-mail addresses furnished by the Company for use in
connection with the Company Stores and Specialized Stores.
1.4 "Company Site" means that Web Site, the primary Home Page for which
is identified by the URL, www.palm.com (and any successor or replacement Web
Site).
1.5 "Company Stores" means the Web Sites, as operated by GSI pursuant
to this Agreement, the primary Home Pages for which are identified by the
Designated URLs (and any successor or replacement Web Sites).
1.6 "Company Stores Functionality" means, collectively: (a)
functionality and features available on the Company Stores and/or Specialized
Stores that GSI may make available from time to time, and (b) any future
equivalents, improvements and enhancements of any of the foregoing.
1.7 "Company Stores Links" means links to the Company Stores which are
to be created on the Company Site pursuant to this Agreement, and which, in each
case, shall be as described in Schedule "A".
1.8 "Confidential Information" means all nonpublic information relating
to a Party or its Affiliates that is designated as confidential or that, given
the nature of the information or the circumstances surrounding its disclosure,
reasonably should be considered as confidential. Confidential Information
includes, without limitation, (a) all nonpublic information relating to a
Party's or its Affiliates' technology, customers, business plans, promotional
and marketing activities, finances and other business affairs, and (b) all third
party information that a Party or its Affiliates is obligated to keep
confidential. Confidential Information may be contained in tangible materials,
such as drawings, data, specifications, reports and computer programs, or may be
in the nature of unwritten knowledge. Neither Party shall have any obligation to
maintain the confidentiality of Confidential Information that (i) has become
publicly available without breach of this Agreement, (ii) can be shown by
documentation to have been known to the receiving Party at the time of its
receipt from the disclosing Party or its Affiliates, (iii) is received from a
third party who did not acquire or disclose such information by a wrongful or
tortious act, or (iv) can be shown by documentation to have been independently
developed by the receiving Party without reference to any Confidential
Information.
1.9 "Customer" means a Person who accesses any of the Company Stores or
Specialized Stores in any manner, whether or not a purchase is made.
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1.10 "Customer Information" means the name, mailing address, telephone
number, e-mail address, Order and Order processing information and any other
identifying information provided by or obtained from Customers through the
Company Stores or the Specialized Stores; provided, however, Customer
Information does not include (i) any information that either GSI or the Company
owns or to which GSI or the Company has the rights and which is obtained from
Customers other than through transactions contemplated under this Agreement,
(ii) Aggregate Information, or (iii) Financial Information.
1.11 "Designated URLs" means www.store.palm.com or any successor or
replacement URL and www.store.palm.com/outlet or any successor or replacement
URL.
1.12 "Extended Warranty" means a warranty for Palm Products offered for
sale through the Company Stores or Specialized Stores which is administered
solely by the Company or a third party on its behalf and the obligations under
which are performed solely by the Company or a third party on its behalf.
1.13 "Financial Information" means all information relating to the
financial performance and/or operations of the Company Stores and Specialized
Stores which is not specific to a Person, does not refer to or identify any
specific Person, and cannot be used, alone or in conjunction with other
information, to identify any specific Person.
1.14 "GSI Content" means any and all content or information owned or
controlled (e.g., by license or otherwise) by GSI or its Affiliates, including
text, graphics, photographs, video and audio, and furnished by GSI or Affiliates
in connection with the Company Stores or the Specialized Stores or otherwise in
connection with the performance of its obligations under this Agreement.
1.15 "Home Page" means, with respect to a Web Site, the Web page
designated by the operator of the Web Site as the initial and primary end user
interface for the Web Site.
1.16 "Intellectual Property Rights" means any and all now known or
hereafter known tangible and intangible (a) rights associated with works of
authorship throughout the universe, including but not limited to copyrights,
moral rights, and mask-works, (b) trademark, trade dress and trade name rights
and similar rights, (c) trade secret rights, (d) patents, designs, algorithms
and other industrial property rights, (e) all other intellectual and industrial
property rights of every kind and nature throughout the universe and however
designated (including domain names, logos, "rental" rights and rights to
remuneration), whether arising by operation of law, contract, license, or
otherwise, and (f) all registrations, initial applications, renewals,
extensions, continuations, divisions or reissues hereof now or hereafter in
force (including any rights in any of the foregoing).
1.17 "Internet" means the system of computer networks interconnected
with routers, worldwide in scope, that facilitates data communication services
such as remote login, file transfer, electronic mail, and the Web, and any
successor to such system.
1.18 "Launch Date" means, with respect to each of the Company Stores
and Specialized Stores, the date on which such Company Store or Specialized
Store, as operated by GSI hereunder, is first made available to the public on
the Web.
1.19 "Look and Feel" means the appearance, coloring, graphics, fonts,
logos and other look and feel characteristics of a Web Site which are unique to
the Web Site and are
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consistent from page to page and which indicate a common identity of the various
pages and identify such pages as forming a part of a single Web Site.
1.20 "Merchandise" means Palm Products, Non-Palm Products, Extended
Warranties and Service Contracts which are offered for sale through the Company
Stores and/or Specialized Stores from time to time.
1.21 "Merchandise Cost of Sales" means, with respect to (i) Palm
Products, the amount payable by GSI to the Company for such Palm Products
pursuant to Section 3.6(i) hereof, and (ii) Non-Palm Products, GSI's actual out
of pocket cost of such products, including applicable transportation fees to
GSI's warehouse but excluding any and all other fixed or variable costs.
1.22 "Merchandise Revenue" means [*]
1.23 "Non-Palm Products" means products which are offered for sale
through the Company Stores and/or Specialized Stores, other than Palm Products.
1.24 "On-Line Gift Certificates" means gift certificates,
pre-programmed cards, and other forms of credit in fixed denominations
redeemable only through the Company Stores or Specialized Stores.
1.25 "Open-Box Return" means a Palm Product returned by a Customer and
not salable as "new" but salable if properly marked as "Open-Box", as determined
by GSI after using good faith efforts to comply with the Testing Specifications
(as defined below).
1.26 "Order" means an order for Merchandise made by a Customer.
1.27 "Palm Products" means products which are manufactured by or on
behalf of the Company and/or its Affiliates and which use or bear the Company's
or its Affiliates' Trademarks, including Refurbished Products and Software
Products.
1.28 "Person" means, whether or not capitalized, any individual,
corporation (including any non-profit corporation), general or limited
partnership, limited liability company, joint venture, estate, trust,
association, organization, labor union, or other entity or governmental body.
1.29 "Refurbished Product" means a Palm Product not salable as "new"
but reconditioned to be salable if properly marked as "used", as determined by
the Company.
1.30 "Secondary URLs" means uniform resource locators other than the
Designated URLs that include one or more of the trade names, trademarks, or
service marks used by the Company or its Affiliates, or any variant of such
trade names, trademarks, or service marks or other references to the Company or
the Company's business.
1.31 "Service Contract" means a service contract for technical support
related to Palm Products offered for sale through the Company Stores or
Specialized Stores which is administered solely by the Company or a third party
on its behalf, and the obligations under which are performed solely by the
Company or a third party on its behalf.
1.32 "Services Revenue" means [*]
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1.33 "Shipping Revenue" means [*]
1.34 "Software Product" means a compact disc, multimedia card, secure
digital expansion card containing software to be used in connection with other
Palm Products.
1.35 "Specialized Stores" means Web Sites focused on particular
customer groups such as the Education Store, the Employee Store, the Canadian
Store (each as defined below) and other mutually agreed upon Web Sites.
1.36 "Technology" means any design, specification, content (which
includes product files, catalogs, images and editorial content), data, database,
software, code, template, user interface, technique, algorithm, method, process,
device, procedure, functionality or other technology or item.
1.37 "Term" is defined in Section 13.1 of this Agreement.
1.38 "Trademark" means any trademark, service mark, trade name, URL,
domain name, trade dress, proprietary logo or insignia or other source or
business identifier.
1.39 "URL" means the uniform resource locator of a Web Site.
1.40 "Web" means the Internet client-server hypertext distributed
information retrieval system known as the World Wide Web.
1.41 "Web Site" means any point of presence maintained on the Internet
or on any other public data network. With respect to any Web Site maintained on
the World Wide Web or any successor public data network, such Web Site includes
all HTML pages (or similar unit of information presented in any relevant data
protocol) that either (a) are identified by the same second-level domain (such
as http://www.palm.com) or by the same equivalent level identifier in any
relevant address scheme, or (b) contain branding, graphics, navigation or other
characteristics such that a user reasonably would conclude that the pages are
part of an integrated information or service offering.
Section 2. Creation and Operation of the Company Stores.
2.1 Design and Development; Launch. GSI will design and develop the
Company Stores in accordance with this Agreement. The Company Stores will be
generally comparable in quality, ease of use and performance as then-current
industry standards for e-commerce Web Sites that sell products and services
similar to those then offered through the Company Stores. The Company Stores
will contain at a minimum the functionality and features set forth on Schedule
"B" attached to this Agreement and such other functionality and features as may
be agreed upon by the Parties. The Parties will work together in good faith and
use commercially reasonable efforts to cause the Launch Dates for each Company
Store to be as soon as practicable after the Effective Date.
2.2 Design Templates; Look and Feel; Approval Rights. The Company
Stores will be comprised of a series of templates ("Design Templates") developed
by GSI and Palm that will define the format and layout of a page on the Company
Stores and establish the placement and size of content type blocks (e.g. text,
graphics, promotions, advertising, navigation bar and images). The Look and Feel
characteristics of the Company Stores will be
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consistent with that of the Company Site, or as otherwise agreed upon by the
Parties. The Company will provide GSI with the Company Content necessary for the
operation of the Company Stores in such format as may be agreed upon by the
Parties. The Company shall have the right to approve the overall Design
Templates and Look and Feel of the Company Stores prior to their respective
Launch Dates, with such approval not to be unreasonably withheld or delayed.
After the Launch Date for each Company Store, no material changes to the Design
Templates or Look and Feel of such Company Store will be made without the
approval of the Parties.
2.3 Hosting, Maintenance and Operations of Company Stores. GSI will
host, maintain and operate the Company Stores in accordance with this Agreement.
The equipment and software used by GSI to host and operate the Company Stores
and the security provided by GSI with respect to the Company Stores, will be at
least generally comparable to then-current prevailing industry standards for
e-commerce Web Sites that sell products and services similar to those then
offered through the Company Stores. GSI agrees that during the Term it will
comply with [*]. The Company Stores will be operated at the Designated URLs and
at such other URLs as may be agreed upon by the Parties. The Company agrees that
GSI will be enabled, throughout the entire Term, to provide all domain name
server services for the Designated URLs and all Secondary URLs for the Company
Stores. Without limiting the generality of the preceding sentence, throughout
the entire Term, the Company will ensure that (i) the Designated URLs and all
Secondary URLs are registered with Network Solutions Inc. (or another reputable
registrar approved by GSI) in such a way that the Designated URLs and all
Secondary URLs point to domain name servers designated and controlled by GSI,
(ii) it complies with the requirements of, and provides GSI with the information
set forth on, Schedule "D" attached to this Agreement with respect to security
for and registration of all URLs for the Company Stores, and (iii) GSI is
appointed as technical contact with Network Solutions, Inc. (or such other
approved registrar) for the Designated URLs and all Secondary URLs. If the
Company notifies GSI that it reasonably believes that GSI's use of the Company's
Trademarks on the Company Stores or Specialized Stores is not consistent with
the quality or goodwill of such Trademarks, then GSI will use commercially
reasonable efforts to alter such use so that it is consistent with such quality
or goodwill.
2.4 Order Processing and Fulfillment. GSI will be responsible for all
aspects of order processing and fulfillment for the Company Stores, including
those functions set forth on Schedule "E" attached to this Agreement. The order
processing and fulfillment services provided by GSI with respect to the Company
Stores will be generally comparable in quality as then-current prevailing
industry standards for e-commerce Web Sites that sell products and services
similar to those then offered through the Company Stores. The Order receipt,
processing and fulfillment services provided by GSI with respect to the Company
Sites will at a minimum comply with [*]. GSI will only accept Orders for
shipments to addresses in the United States and APO/FPO addresses and to
addresses in such other locations as are mutually agreed upon by the Parties;
provided, however, that GSI shall also accept Orders for shipments to addresses
in [*] beginning [*] and continuing throughout the Term.
2.5 Returns.
(a) Except with respect to Software Products and Refurbished
Products, GSI will accept the return of Merchandise sold through the Company
Stores only if (i) a return merchandise authorization number is issued to the
Customer, and (ii) (A) such Merchandise is defective or such Merchandise is
damaged during shipment as determined by GSI after using good faith efforts to
comply with the testing specifications set forth in Schedule "F" (the "Testing
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Specifications"), or (B) authorization to return such Merchandise is requested
within [*] days after the Merchandise is received by the Customer (or such other
mutually agreed upon time) and such Merchandise is in a condition suitable for
resale as new goods or as Open-Box Returns.
(b) GSI will accept the return of a Software Product sold
through the Company Stores only if (i) a return merchandise authorization number
is issued to the Customer, (ii) such Software Product is defective or damaged
during shipment (i.e. does not operate properly with the device), and (iii)
authorization to return such Software Product is requested within [*] days after
the Software Product is received by the Customer (or such other mutually agreed
upon time). GSI shall ship a replacement Software Product to such Customer. GSI
shall not issue a refund in connection with the return of any Software Product.
(c) GSI will accept the return of a Refurbished Product sold
through the Company Stores only if (i) a return merchandise authorization number
is issued to the Customer, (ii) such Refurbished Product is defective or damaged
during shipment as determined by GSI after using good faith efforts to comply
with the Testing Specifications, and (iii) authorization to return such
Refurbished Product is requested within [*] days after the Refurbished Product
is received by the Customer (or such other mutually agreed upon time). GSI shall
refund to the Customer returning a Refurbished Product an amount equal to the
amount paid by such Customer for the Refurbished Product.
Notwithstanding any other provision of this Agreement, Palm will accept from GSI
the return of defective or damaged Palm Products as identified through the
Testing Specifications which GSI accepts from Customers in accordance with this
Section 2.5.
2.6 Customer Service. GSI will be responsible for providing customer
service to users of the Company Stores. The customer service provided to users
of the Company Stores will be provided in the name of the applicable Company
Store (unless otherwise required by law or privacy policy or not to be
misleading) and will comply with [*]. GSI will provide customer service in a
courteous and professional manner.
2.7 Web Site Transition Plan. Within a reasonable period of time prior
to the Launch Date of each Company Store, the Parties shall mutually agree upon
a transition plan to address (i) the transfer of account information from users
of the Company's prior e-commerce Web Site to GSI for use in connection with the
Company Stores, (ii) procedures for the return of products purchased by users
prior to the Launch Date of each Company Store who desire to return such
products after such Launch Date, (iii) the redemption of gift cards, gift
certificates, coupon and discount codes issued prior to the Launch Date of each
Company Store, (iv) customer service requests received after the Launch Date of
each Company Store which relate to events occurring prior to such Launch Date,
and (v) such other transition matters as may be necessary to transition the
operation of the prior Company e-commerce business to GSI as contemplated
hereunder.
2.8 Seamless Operations. The Parties agree to work in good faith and
use commercially reasonable efforts to perform their respective obligations
hereunder as seamlessly as practicable under the Company's brand. As a result of
Persons perceiving the Company Stores as an extension of the Company, the
Company agrees to provide GSI with reasonable prior notice of intended actions
by the Company which may have a material impact on either of the Company Stores,
the ability of GSI to perform its obligations hereunder, and/or the volume of
Customers or callers accessing the Company Stores or customer service telephone
support
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for the Company Stores.
2.9 Reporting. The Company will have access to a set of standard
reports that GSI generally makes available to its other e-commerce partners.
Reports will be exportable in formats mutually agreed upon by the Parties. The
reports will include access to data concerning sales (including daily and weekly
data for sales by dollar, sales by unit and returns), user traffic, performance
of the Company Stores (including [*] reports setting forth [*]), and other
relevant information for the Company Stores. Company to outline specific reports
and data required for financial statement reporting.
Section 3. Merchandising; Cost of Merchandise
3.1 Assortment. Subject to the terms of this Agreement, GSI will offer,
merchandise and sell on the Company Stores (i) [*] and (ii) [*]. GSI and the
Company will work together to develop merchandising programs and to determine
attractive bundles and promotions for the Company Stores. For all Palm Products
that the Parties agree to offer for sale through the Company Stores, the Company
will sell to GSI such quantities, styles and sizes of such products as may be
reasonably requested by GSI. With respect to such Palm Products, the Company
will provide to GSI, within a reasonable time prior to the projected inclusion
of such Palm Products on the Company Stores, a report, in reasonable detail,
which includes (i) UPC/Model #s for each product; (ii) suggested retail prices
for each product that the Company generally provides to other retailers of such
products ("SRP"); (iii) available colors and styles; (iv) any sales or inventory
restrictions or limitations; (v) packaging dimensions and weight by product; and
(vi) such other reasonably requested information.
3.2 Concept Shops. The Company Store located at the URL
www.store.palm.com will include concept shops which offer certain Palm Products
and Non-Palm Products for sale to individuals who are affiliated with industries
designated by the Company (the "Concept Shops"). GSI will use commercially
reasonable efforts to include one (1) "Healthcare" Concept Shop in such Company
Store by the Launch Date for such Company Store. Thereafter, the Parties will
mutually agree upon additional Concept Shops. The Concept Shops will be
accessible to individuals who provide their name, title, e-mail address and
phone number and the name of the industry with which they are affiliated. The
products offered for sale through the Concept Shops will include an assortment
of Palm Products and Non-Palm Products designed to appeal to individuals
affiliated with the industries designated by the Company.
3.3 Restrictions. Notwithstanding anything contained herein to the
contrary, GSI will not be required to offer, sell, advertise or promote on
either of the Company Stores, or display any links to Web Sites that offer,
sell, advertise or promote, either directly or indirectly, any of the following:
(i) any Merchandise which GSI knows or is informed by the Company is
counterfeit, or the offer or sale of which GSI knows or is informed by the
Company infringes the valid Intellectual Property Rights of third parties; (ii)
any product or service that is unethical, immoral, obscene or offensive to good
taste; or (iii) any product that GSI is prohibited from offering for sale on the
Company Stores by any third party manufacturer, licensor or licensee of such
product.
3.4 Gift Certificates. GSI will have the right to sell On-Line Gift
Certificates through the Company Stores and Specialized Stores. GSI will pay to
the Company a revenue share pursuant to Section 7 upon the redemption of On-Line
Gift Certificates and not upon the initial sale of such On-Line Gift
Certificates.
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3.5 Product Descriptions. The Company will provide GSI with product
description information (including UPC codes) for each Palm Product in formats
reasonably requested by GSI from time to time. The Company will provide GSI with
such additional product description information concerning Palm Products as may
be reasonably requested by GSI, including information required to comply with
applicable legal disclosure requirements. GSI will develop or obtain other
product description information for Non-Palm Products. All product descriptions
for use on the Company Stores must be reviewed by Palm prior to the Launch Dates
for the Company Stores.
3.6 Purchase and Sale of Palm Products. For all Palm Products purchased
by GSI hereunder (i) GSI will pay to the Company [*] for each Palm Product
purchased by GSI, less returns for damaged or defective products and credits for
shortage; (ii) the Company will deliver such Palm Products to GSI, at the
Company's expense, F.O.B. the Company's warehouse, to a facility or facilities
designated by GSI and based upon a mutually agreed upon delivery schedule; (iii)
the Company will use good faith efforts to deliver such Palm Products to GSI in
a manner which minimizes GSI's receiving cost based upon specifications provided
by GSI; (iv) GSI will confirm receipt of product within [*] business days of
arrival at GSI facility and will have [*] business days to make a claim of
shortage or damaged shipment; (v) GSI will have the right to return to the
Company (at GSI's freight cost) [*] of the Palm Products purchased by GSI from
the Company during the Term for a refund equal to the aggregate amount paid by
GSI for such returned Palm Products; provided, however, that GSI must use good
faith efforts to sell through its remaining inventory of Palm Products prior to
returning to Company. The Company will assist GSI as reasonably requested in
filing any necessary claims with common carriers. Terms of sale are [*] days
from invoice. Company will invoice GSI on last day of GSI's fiscal month for the
aggregate sale price of Palm Products shipped to GSI during such month. Payment
is not conditioned upon the Palm Products meeting any acceptance testing
procedures GSI may have. If there is any dispute as to a part of a shipment, GSI
will pay for the undisputed part of that shipment. GSI may not deduct any debit
memos from payment(s) made to the Company on outstanding invoice(s), without
prior written approval from the Company. Payments should be submitted to the
appropriate address as stated on the invoice.
Section 4. Additional Web Stores.
4.1 Education Store. GSI will design and develop a Web Site which will
offer certain Palm Products and Non-Palm Products for sale to educational
institutions as defined by Palm in conducting its education business and to the
faculty and students of such institutions (the "Education Store"). GSI will use
commercially reasonable efforts to cause the Launch Date for the Education Store
to coincide with the later of the Launch Dates for the Company Stores. Following
the Launch Date for the Education Store, GSI will (i) host, maintain and operate
the Education Store, and (ii) process orders and provide fulfillment and
customer services for the Education Store. The Education Store will be
accessible to representatives of educational institutions and to the faculty and
students of such institutions who provide their name, title, e-mail address and
phone number and the name of the educational institution with which they are
associated. The products offered for sale through the Education Store will
include an assortment of Palm Products and Non-Palm Products designed to appeal
to various sectors of the education market. GSI will accept purchase orders,
credit cards, bank checks and money orders for purchases through the Education
Store.
4.2 Employee Store. GSI will design and develop a Web Site which will
offer certain Palm Products for sale to employees of the Company (the "Employee
Store"). GSI will use commercially reasonable efforts to cause the Launch Date
for the Employee Store to be as
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soon as practicable after the Effective Date. Following the Launch Date for the
Employee Store, GSI will (i) host, maintain and operate the Employee Store, and
(ii) process orders and provide fulfillment and customer services for the
Employee Store. The Employee Store will be accessible to employees of the
Company through the unique Internet protocol address of the Company's intranet
Web Site. The Company will provide GSI with a unique employee identifier to be
used by each employee of the Company. All Palm Products offered for sale through
the Company Stores will be offered for sale through the Employee Store, other
than warranty plans, Refurbished Products, parts and bundles. Each employee of
the Company (as determined by such employee's unique employee identifier) will
not be permitted to purchase more than ten (10) of each handheld computing
device offered for sale through the Employee Store during any calendar year. GSI
will accept credit cards and bank checks for purchases through the Employee
Store.
4.3 Canadian Store. GSI will design and develop a Web Site which will
offer certain Palm Products and Non-Palm Products for sale to residents of
Canada (the "Canadian Store"). GSI will use commercially reasonable efforts to
cause the Launch Date for the Canadian Store to occur by March 31, 2003.
Following the Launch Date for the Canadian Store, GSI will (i) host, maintain
and operate the Canadian Store, and (ii) process orders and provide fulfillment
and customer services for the Canadian Store. The products to be offered for
sale through the Canadian Store will be mutually agreed upon by the Parties. The
Canadian Store will be available in English and French, with users selecting the
language in which it is displayed. Customer service for the Canadian Store will
be available in English and French. The selling prices for products and services
offered for sale through the Canadian Store will be in displayed in Canadian
currency and GSI will accept such currency as payment for such products and
services. The exchange rate used for the Canadian Store will be updated on a
daily basis to reflect the then current exchange rate for United States and
Canadian currency as set forth in the Wall Street Journal.
Section 5. Promotion and Advertising.
5.1 Company Activities. At all times during the Term, the Company shall
operate and maintain the Company Site. The Company will create and, following
the Launch Date for the Company Stores, maintain on the Company Site during the
Term the Company Stores Links in accordance with the requirements set forth on
Schedule "A". Following the Launch Date for each Company Store and continuing
during the Term, the Company will (i) promote the Company Stores, the Designated
URLs and Merchandise in its promotional e-mail campaigns, and (ii) provide
marketing of the Company Stores, the Designated URLs and Merchandise in the form
of a catalog or insert placed inside the boxes of select Palm Products.
5.2 GSI Activities and Obligations. Upon request by the Company from
time to time, GSI will provide data feeds to third parties with which the
Company has entered into promotional and/or marketing agreements. Such data
feeds shall include information concerning Merchandise then available for sale
through the Company Stores. Such information may include product names, product
descriptions, stock keeping unit numbers ("SKU"), product prices, shipping
costs, availability and/or links to the Company Stores.
Section 6. Implementation.
6.1 Account Managers. Each Party will assign an account manager (which
manager will be subject to change from time to time by the assigning Party upon
written notice to the other Party) to oversee the performance of such Party's
obligations under this Agreement
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and to facilitate coordination of the Parties' performance of their respective
obligations. The account managers will meet with such frequency as may be
mutually agreed upon during the Term to review the implementation of this
Agreement and to explore methods for improving performance.
6.2 Cooperation. During the Term, the Parties will cooperate in good
faith and use commercially reasonable efforts to (a) provide a positive customer
experience between the Company Site and the Company Stores, and (b) maximize
customers and revenues from or through the Company Stores.
6.3 Personnel. Each Party will provide during the Term the appropriate
resources and personnel to produce and promote the Company Stores. Each Party's
designated employees will be subject to change from time to time by such Party
in its sole discretion upon notice to the other Party.
Section 7. Compensation and Expenses.
7.1 General. GSI will be the seller of all products and services sold
through the Company Stores and the Specialized Stores. All revenues from the
sale of products and/or services through the Company Stores and Specialized
Stores will be GSI revenues. The Company will have no right to any revenue share
or other fees, except as set forth in Section 3.6(i) and this Section 7. For all
products and/or services sold through the Company Stores and Specialized Stores,
GSI will be responsible for (i) establishing the selling price for such products
and services, (ii) determining whether any sales or use tax is payable to any
governmental authority and, if so payable, the amount of any sales or use tax
payable, and (iii) withholding, collecting and remitting to the appropriate
governmental authority any sales or use tax that is payable. GSI agrees that as
between the Parties, GSI will be solely and exclusively responsible to collect
and pay such sales or use taxes where they may be due. Except as expressly
provided for elsewhere in this Agreement, each Party will be responsible for all
costs and expenses incurred by such Party in performing its obligations under
this Agreement.
7.2 Collection of Sales Proceeds. All proceeds from the sale of
Merchandise and related services through the Company Stores and Specialized
Stores will be collected and processed by GSI. Other than the revenue share
payments payable to the Company pursuant to Section 7.3, GSI shall retain all
amounts collected by GSI from transactions through the Company Stores and
Specialized Stores.
7.3 Revenue Share. The Company shall be entitled to a revenue share
equal to the following:
(a) an amount equal to (i) [*]% of Merchandise Revenue derived
from the sale of Palm Products shipped during the applicable period, less (ii)
the Merchandise Cost of Sales for Palm Products shipped during such period, net
of returns; plus
(b) an amount equal to [*]% of the amount, if any, by which
Merchandise Revenue derived from the sale of Non-Palm Products shipped during
the applicable period exceeds the Merchandise Cost of Sales for Non-Palm
Products shipped during such period, net of returns; plus
(c) an amount equal to [*]% of the amount, if any, by which
Shipping Revenue derived from the provision of shipping and handling services
during the applicable
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period exceeds GSI's carrier costs for providing shipping and handling services
during such period; plus
(d) an amount equal to [*]% of the amount, if any, by which
Services Revenue derived from the provision of gift wrapping and other value
added services during the applicable period exceeds GSI's actual cost of
providing such services (not including overhead, but including direct labor and
the cost of materials used in connection therewith) during the period; plus
(e) an amount equal to [*]% of Merchandise Revenue derived
from the sale of Extended Warranties and Service Contracts during the period.
7.4 Payment of Revenue Share. GSI will account to the Company for the
revenue share payments due under Section 7.3 within [*] days after the end of
each [*] through a report, showing in reasonable detail, the calculation of such
payments. Following its receipt of such report, the Company will invoice GSI for
the amount set forth in such report. Payment terms are [*] days from the date of
invoice. In addition, GSI will forward to the Company a report each [*], on the
last day of the Company's fiscal [*] that estimates the [*] revenue share
payment to the Company for such [*], provided that the Company has provided GSI
with its fiscal calendar. The revenue share figure will be calculated at [*] end
based upon a mutually agreed upon method for projecting returns.
7.5 Records and Audit Rights. During the Term of this Agreement, and
for a period of [*] years thereafter, each Party will keep complete and accurate
books and records sufficient to verify the amounts paid and payable by a Party
to the other Party under this Agreement. Each Party will, upon at least [*]
days' prior written request by the other Party, allow such Party, or a
representative of such Party (unless the audited Party reasonably believes there
is a conflict between such representative and the audited Party) to audit such
books and records at the audited Party's premises to the extent necessary to
verify the amounts owed and charged pursuant to this Agreement; provided that
(a) any such audit is conducted during normal business hours and in a manner
designed to not unreasonably interfere with the audited Party's ordinary
business operations; (b) audits may not occur more frequently than once every
twelve (12) months; and (c) each such audit may only cover the period commencing
after the period covered by the last audit conducted pursuant to this Section
7.5, if any. Notwithstanding the foregoing, if a discrepancy of more than [*]%
is revealed during any audit, then the auditing Party shall be entitled to
conduct an additional audit during the twelve (12) month period in which the
audit which revealed such discrepancy occurred. The audited Party will cooperate
with the auditing Party and its representatives in the conduct of such audit.
7.6 Interest. Either Party shall have the right to charge the other
Party interest on any delinquent balance due under this Agreement that is more
than [*] days past due. This interest is computed on a daily basis for each day
that the payment is delinquent, at the lesser of (i) [*] percent ([*]%) per
annum or (ii) the maximum rate permitted by law.
Section 8. Customer Information and Privacy Policy.
8.1 Customer Information.
(a) The Company shall exclusively own all Customer
Information; provided that during the Term, GSI shall have the right to use such
Customer information as is reasonably necessary to perform its obligations
hereunder. GSI will treat such Customer
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Information as Confidential Information of the Company, and, except as permitted
hereunder, shall in no way use, sell, transfer or otherwise exploit the data for
any purpose without express written consent of the Company. Each Party agrees to
use all Customer Information in accordance with the privacy policy for the
applicable Company Store or Specialized Store and all applicable laws, rules and
regulations.
(b) GSI shall deliver a data feed to the Company's file
transfer protocol account on a daily basis containing the following Customer
Information regarding each Order placed through the Company Stores and
Specialized Stores: the Order number, the email address, the billing address,
the name of the Customer, the name of the Customer's company (if provided), the
Customer's shipping address, the Merchandise ordered (including quantity, SKU
and purchase price), the date of such Order and, if applicable, the promotion or
discount code used in connection with such Order.
8.2 Privacy Policy. Prior to the Launch Date for each applicable
Company Store or Specialized Store, the Parties will mutually agree upon the
privacy policy for and that will be posted on such Company Store or Specialized
Store. Each Party will abide by such privacy policy, as it may be amended from
time to time. Any amendments to such privacy policy must be agreed upon by the
Parties; provided, however, that if any amendment to the privacy policy is
required by applicable law or to be factually accurate, then GSI will amend the
privacy policy to comply with such requirements.
8.3 Aggregate Information and Financial Information. Each Party will
have an equal and undivided ownership interest in the Aggregate Information and
Financial Information. Each Party will treat such Aggregate Information and
Financial Information as Confidential Information of the other Party hereunder;
provided that each Party may use or disclose Aggregate Information and Financial
Information in connection with its financial and statistical reports, so long as
(a) such information is not separately identified as information of any of the
Company Stores or Specialized Stores, and (b) such information is used or
disclosed in a manner which is not specific to a Customer, does not refer or
identify any specific Customer, and cannot be used, alone or in conjunction with
any other information, to identify a particular Customer.
Section 9. Proprietary Rights.
9.1 Ownership.
(a) The Company. As between the Parties, the Company reserves
all right, title and interest in and to the "Company-Furnished Items" (as
defined below), along with all Intellectual Property Rights associated with any
of the foregoing (the "Company Intellectual Property"), and no title to or
ownership of the Company Intellectual Property is transferred or, except as
expressly set forth in Section 9.2, licensed to GSI or any other Person. GSI
hereby assigns to the Company all right, title and interest that it may have or
acquire in and to the Company Intellectual Property, and GSI will take, at the
Company's expense, any actions (including execution and delivery of affidavits
and other documents) reasonably requested by the Company to effect, perfect or
confirm the Company's or its designee's right, title and interest therein. As
used herein, "Company-Furnished Item" means any Company Content or any Trademark
or Look and Feel of the Company or its Affiliates, as the case may be, that (a)
is owned or controlled (e.g., by license or otherwise) by the Company or its
Affiliates, as the case may be, and (b) is furnished by the Company for use in
connection with the activities contemplated by this Agreement. As used herein,
"Company-Furnished Item" will also include,
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without limitation, any adaptation, modification, improvement or derivative work
of any Company-Furnished Item that is developed by either Party or jointly by
the Parties; provided, however, that the Company-Furnished Items do not include
any GSI-Furnished Item (as defined below) or any adaptation, modification,
improvement or derivative work of the Company Stores Functionality that is
developed by either Party or jointly by the Parties. At the termination of the
Agreement, GSI will return all Company-Furnished Items to the Company, and GSI
shall have no further rights thereto.
(b) GSI. As between the Parties, GSI reserves all right,
title and interest in and to the "GSI-Furnished Items" (as defined below), the
"GSI-Owned Developments" (as defined below), and the Company Stores and
Specialized Stores (other than the Company-Furnished Items included in the
Company Stores and Specialized Stores), along with all Intellectual Property
Rights associated with any of the foregoing (the "GSI Intellectual Property"),
and no title to or ownership of the GSI Intellectual Property is transferred or
licensed to the Company or any other Person. The Company hereby assigns and
agrees to assign to GSI all right, title and interest to the GSI Intellectual
Property, and the Company will take, at GSI's expense, any actions (including
execution and delivery of affidavits and other documents) reasonably requested
by GSI to effect, perfect or confirm GSI's or its designee's right, title and
interest therein. As used herein, "GSI-Furnished Item" means any GSI Content or
any Technology or Trademark of GSI that (a) is owned or controlled (e.g., by
license or otherwise) by GSI or its Affiliates, as the case may be, and (b) is
furnished by GSI for use in connection with the activities contemplated by this
Agreement. "GSI-Owned Development" means any Technology (including any
adaptation, modification, improvement or derivative work of any GSI-Furnished
Item) that is developed solely by GSI or jointly by the Parties for use on any
of the Company Stores or Specialized Stores in connection with the activities
contemplated by this Agreement or that is developed by GSI for use on the Web
Sites that it operates, which may include the Company Stores and/or Specialized
Stores. Notwithstanding the foregoing, neither the GSI-Furnished Items nor the
GSI-Owned Developments will include (i) any Company-Furnished Item, (ii) any
derivatives thereof, or (iii) any Joint Developments (as defined below). The
GSI-Owned Developments will, however, include all adaptations, modifications,
improvements or derivative works of the Company Stores Functionality that are
developed by GSI or jointly by the Parties. At the termination of the Agreement,
the Company shall return all GSI-Furnished Items to GSI, and the Company shall
have no further rights thereto. For purposes of this Agreement, "Joint
Development" means any Technology that is jointly developed through the
significant efforts of each Party during the Term pursuant to mutually agreed
upon terms expressly agreed upon in writing by the Parties.
9.2 Company License. The Company hereby grants to GSI, during the Term,
a worldwide, non-transferable license to use the Company-Furnished Items
supplied by the Company as is reasonably necessary to perform its obligations
under this Agreement or to sublicense the Company-Furnished Items supplied by
the Company to third parties in connection with advertising and promotion
agreements and arrangements permitted under this Agreement (sublicense to be
approved by Company); provided, however, that GSI will not use Trademarks of the
Company or its Affiliates, including in any advertising, except in conformance
with the reasonable use guidelines of the Company set forth on Schedule "G"
attached to this Agreement. All goodwill arising out of any use of any of the
Company's or its Affiliate's Trademarks by, through or under GSI will inure
solely to the benefit of the Company or such Affiliate, as the case may be.
9.3 Non-Disparagement. Neither GSI nor any of its Affiliates will use
the Trademarks of the Company or its Affiliates in a manner that disparages the
Company or its
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Affiliates, as the case may be, or its products or services, or portrays the
Company or its Affiliates, as the case may be or its products or services in a
false, competitively adverse or poor light. GSI and its Affiliates will avoid
knowingly taking any action that diminishes the value of such marks.
Section 10. Representations and Indemnification.
10.1 Representations. Each Party represents and warrants to the other
that: (a) it has the full corporate right, power and authority to enter into
this Agreement and perform its obligations hereunder; (b) its execution,
delivery and performance of this Agreement, and the other Party's exercise of
such other Party's rights under this Agreement, will not conflict with or result
in a breach or violation of any of the terms or provisions or constitute a
default under any material agreement by which it is bound; and (c) when executed
and delivered, this Agreement will constitute its legal, valid and binding
obligation enforceable against it in accordance with its terms.
10.2 Indemnity.
(a) GSI will defend, indemnify and hold harmless the Company
and its Affiliates (and their respective employees, officers, directors and
representatives) from and against any and all claims, costs, losses, damages,
judgments and expenses (including reasonable attorneys' fees) arising out of any
third party claim, action, suit or proceeding (a "Claim"), to the extent it is
based on (i) the creation, operation or content of the Company Stores and
Specialized Stores (other than any items or materials supplied by the Company
for use on the Company Stores, on the Specialized Stores or otherwise pursuant
to this Agreement, including the Company Content), (ii) any actual or alleged
breach of GSI's representations, warranties and/or obligations as set forth in
this Agreement, (iii) any actual or alleged infringement of any Intellectual
Property Rights by any materials provided by GSI for use on the Company Stores,
on the Specialized Stores or provided by GSI to the Company for its use under
this Agreement; (iv) the offer, marketing (unless directed by the Company) or
sale of any products (except for product liability, wrongful death or similar
claims relating to products obtained from or through the Company or its
Affiliates, including Palm Products) or services on the Company Stores or the
Specialized Stores; and (v) for the payment of any sales taxes (including any
fines or penalties assessed for non-payment) resulting from the sale of
merchandise through the Company Stores or the Specialized Stores. Subject to
Section 10.3, GSI will pay any award against the Company and its Affiliates (and
their respective employees, officers, directors or representatives) and any
costs and attorneys' fees reasonably incurred by them resulting from any such
Claim.
(b) The Company will defend, indemnify and hold harmless GSI
and its Affiliates (and their respective employees, officers, directors and
representatives) from and against any and all claims, costs, losses, damages,
judgments and expenses (including reasonable attorneys' fees) arising out of any
third party Claim, to the extent it is based on (i) the creation, operation or
content of the Company Site; (ii) any actual or alleged breach of the Company's
representations, warranties and/or obligations as set forth in this Agreement,
(iii) any actual or alleged infringement of any Intellectual Property Rights by
any materials provided by the Company to GSI for its use on the Company Stores,
on the Specialized Stores or otherwise under this Agreement, or (iv) product
liability, wrongful death or similar claims relating to products obtained from
or through the Company or its Affiliates, including Palm Products. Subject to
Section 10.3, the Company will pay any award against GSI and its Affiliates (and
their
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respective employees, officers, directors or representatives) and any costs and
attorneys' fees reasonably incurred by them resulting from any such Claim.
10.3 Procedure. In case any claim, action, suit or proceeding is at any
time brought against a Party or its Affiliates (or any of their respective
employees, officers, directors or representatives) (an "Indemnified Party") and
such Indemnified Party is entitled to indemnification pursuant to Section 10.2,
the party obligated to provide such indemnification (the "Indemnifying Party")
will defend such claim, action, suit or proceeding, at the sole expense of the
Indemnifying Party, using counsel selected by the Indemnifying Party but subject
to the Indemnified Party's reasonable approval. If the Indemnifying Party fails
to take timely action to defend such a Claim or proceeding after having received
written notice from the Indemnified Party of such failure, the Indemnified Party
may defend such a Claim at the Indemnifying Party's expense. The Indemnifying
Party will keep the Indemnified Party fully advised with respect to such Claims
and the progress of any suits, and the Indemnified Party shall have the right to
participate, at the Indemnified Party's expense, in any suit instituted against
it and to select attorneys to defend it, which attorneys will be independent of
any attorneys chosen by the Indemnifying Party relating to such claim or related
claim. The Indemnifying Party will not settle, compromise or otherwise enter
into any agreement regarding the disposition of any claim against the
Indemnified Party without the prior written consent and approval of the
Indemnified Party, unless such settlement, compromise or disposition provides
for a complete and unconditional release of the Indemnified Party. The
obligations of the Indemnifying Party pursuant to this Section 10 shall survive
expiration or earlier termination of this Agreement.
Section 11. Disclaimers and Limitations.
11.1 DISCLAIMER OF WARRANTIES. EXCEPT AS OTHERWISE PROVIDED IN THIS
AGREEMENT, NEITHER PARTY MAKES, AND EACH PARTY HEREBY WAIVES AND DISCLAIMS, ANY
REPRESENTATIONS OR WARRANTIES REGARDING THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OR IMPLIED WARRANTIES
ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EACH PARTY SPECIFICALLY
DISCLAIMS ANY REPRESENTATION OR WARRANTY REGARDING (A) THE AMOUNT OF SALES
REVENUES THAT MAY OCCUR DURING THE TERM, AND (B) ANY ECONOMIC OR OTHER BENEFIT
THAT IT MIGHT OBTAIN THROUGH ITS PARTICIPATION IN THIS AGREEMENT (OTHER THAN THE
SPECIFIC SUMS TO BE PAID PURSUANT TO THIS AGREEMENT).
11.2 LIMITATION OF DAMAGES. EXCEPT TO THE EXTENT AWARDED TO A THIRD
PARTY IN A JUDGMENT AGAINST WHICH A PARTY IS ENTITLED TO INDEMNIFICATION
PURSUANT TO SECTION 10, OR TO THE EXTENT ARISING OUT OF AN INTENTIONAL BREACH OF
THIS AGREEMENT, NEITHER PARTY WILL BE LIABLE (WHETHER IN CONTRACT, WARRANTY,
TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), PRODUCT LIABILITY OR OTHER
THEORY), TO THE OTHER PARTY OR ANY OTHER PERSON OR ENTITY FOR COST OF COVER OR
FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY
DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFIT, BUSINESS OR DATA) ARISING OUT OF
THIS AGREEMENT.
Section 12. Exclusivity. Except as provided below, during the Term, [*] For
purposes of this Section 12, "Affiliates" shall not be deemed to include Palm
Source, Inc.[.
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Section 13. Term and Termination.
13.1 Term. The Term of this Agreement will commence on the date hereof
and, unless extended or earlier terminated as provided elsewhere in this
Agreement, will end automatically upon the [*] year anniversary of the later of
the Launch Dates for the Company Stores.
13.2 Termination for Breach. Without limiting any other rights or
remedies (including, without limitation, any right to seek damages and other
monetary relief and the rights under Sections 13.3 and 13.4) that either Party
may have in law or otherwise, either Party may terminate this Agreement if the
other Party fails to perform any of its material obligations hereunder; provided
that (a) the non-breaching Party sends written notice to the breaching Party
describing in reasonable detail the breach and stating its intention to
terminate this Agreement unless such breach is cured, and (b) the breaching
Party does not cure the breach within [*] days following its receipt of such
notice; provided, however, that if the breaching party has diligently attempted
to cure the breach during such [*] day period but has not cured the breach by
the end of such [*] day period, the non-breaching Party may not terminate this
Agreement so long as the breaching Party continues to diligently attempt to cure
the breach. Notwithstanding the foregoing, GSI will be deemed to have cured a
breach premised upon failure to comply with [*] by fully complying with such
obligation [*] after notice of default is received.
13.3 Company Termination. The Company shall be entitled to terminate
this Agreement immediately upon written notice to GSI if GSI institutes or has
instituted against it any bankruptcy, reorganization, debt arrangement,
assignment for the benefit of creditors, or other proceeding under any
bankruptcy or insolvency law or dissolution, receivership, or liquidation
proceeding (and, if such proceeding is instituted against it, such proceeding is
not dismissed within [*] days).
13.4 GSI Termination. GSI shall be entitled to terminate this Agreement
immediately upon written notice to the Company if the Company institutes or has
instituted against it any dissolution or liquidation proceeding (and, if such
proceeding is instituted against it, such proceeding is not dismissed within [*]
days).
13.5 [*]
13.6 Effect of Termination. Upon termination of this Agreement, each
Party in receipt, possession or control of the other Party's intellectual or
proprietary property, information and materials (including any Confidential
Information) pursuant to this Agreement must return to the other Party (or at
the other Party's written request, destroy) such property, information and
materials. Sections 3.5, 7 through 11, 13 and 14 (together with all other
provisions that reasonably may be interpreted as surviving termination or
expiration of this Agreement) will survive the termination or expiration of this
Agreement. Notwithstanding the foregoing, termination of this Agreement shall
not relieve either Party from its obligation to pay any monies due to the other
Party for any period prior to the effective date of termination. GSI will
cooperate with Company's reasonable requests to transition the services and
materials described herein either to another party or to Company.
Section 14. Miscellaneous.
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14.1 Press Releases. All voluntary public announcements concerning the
transactions contemplated by this Agreement will be mutually acceptable to both
the Company and GSI. Unless required by law, neither the Company nor GSI will
make any public announcement or issue any press release concerning the
transactions contemplated by this Agreement without the prior consent of the
other Party. Notwithstanding the preceding sentences in this Section 14.1, (a)
after the initial public announcement of a particular matter or transaction
contemplated by this Agreement has been approved by the Parties, either Party's
subsequent reference to that particular matter or transaction will not require
another approval from the other Party, and (b) each Party may make any public
announcement or issue any press release that it is required by law to issue,
provided such Party gives reasonable prior notice of such announcement or press
release to the other Party.
14.2 Independent Contractors. The Parties are entering into this
Agreement as independent contractors, and this Agreement will not be construed
to create a partnership, joint venture or employment relationship between them.
Neither Party will represent itself to be an employee or agent of the other or
enter into any agreement or legally binding commitment or statement on the
other's behalf of or in the other's name.
14.3 Confidentiality.
(a) Each Party will protect the Confidential Information of
the other Party from misappropriation and unauthorized use or disclosure, and at
a minimum, will take precautions at least as great as those taken to protect its
own confidential information of a similar nature. Without limiting the
foregoing, the receiving Party will: (i) use such Confidential Information
solely for the purposes for which it has been disclosed; and (ii) disclose such
Confidential Information only to those of its employees, agents, consultants,
and others who have a need to know the same for the purpose of performing this
Agreement and who are informed of and agree to a duty of nondisclosure. The
receiving Party may also disclose Confidential Information of the disclosing
Party to the extent necessary to comply with applicable law or legal process,
provided that the receiving Party uses reasonable efforts to give the disclosing
Party prompt advance notice thereof. Upon request of the other Party, or in any
event upon any termination or expiration of the Term, each Party will return to
the other all materials, in any medium, which contain, embody, reflect or
reference all or any part of any Confidential Information of the other Party.
(b) Neither Party will disclose this Agreement or the
transactions contemplated herein, or make any filing of this Agreement or other
agreements relating to the transactions contemplated herein, without the consent
of the other; provided, however, that if a Party is required by applicable law
to provide public disclosure of this Agreement or the transactions contemplated
herein, such Party will use all reasonable efforts to coordinate the disclosure
with the other Party before making such disclosure, including the submission to
the Securities and Exchange Commission (and any other applicable regulatory or
judicial authority) of an application for confidential treatment of certain
terms (which terms will be agreed upon by the Parties) of this Agreement. Each
Party will provide to the other for review a copy of any proposed disclosure of
this Agreement or its terms and any application for confidential treatment prior
to the time any such disclosure or application is made and the parties shall
work together to mutually approve such disclosure or application.
14.4 Force Majeure. If either Party is unable to perform any of its
obligations under this Agreement due to an event beyond the control of that
Party, including natural disaster, acts of God, actions or decrees of
governmental bodies, act of war, failure or discontinuance of the
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Internet or failure of communications lines or networks, that Party will use
commercially reasonable efforts to resume performance of its obligations but
will have no liability to the other Party for failure to perform its obligations
under this Agreement for so long as it is unable to do so as a result of such
event. However, during any such period when GSI is unable to operate the Company
Stores and fulfill Orders, the Company shall not be prohibited from directly or
indirectly selling Merchandise through the Internet.
14.5 Compliance with Laws. In its performance of this Agreement, each
Party will comply in all material respects with all applicable laws,
regulations, orders and other requirements, now or hereafter in effect, of
governmental authorities having jurisdiction.
14.6 Insurance. Each Party will at its own expense obtain and maintain
such policy or policies of insurance as are required by law or as are
commercially reasonable for the transactions and business contemplated by this
Agreement. In addition, certificates of insurance for insurance policies
required below shall be furnished by GSI to the Company prior the Launch Date
and not later than [*] days prior to each policy renewal. Such insurance
certificates shall be in form reasonably acceptable to the Company, but any
acceptance of insurance certificates by the Company shall not limit or relieve
GSI of the duties and responsibilities with respect to maintaining insurance
assumed by it under this Agreement. GSI shall, at its own expense, at all times
during the term of this Agreement provide and maintain in effect those insurance
policies and minimum limits of coverage as designated below, and any other
insurance required by applicable law.
(a) GSI shall maintain workers' compensation insurance as
required by any applicable law or regulation and, in accordance with the
provisions of all applicable laws. GSI shall maintain employer's liability
insurance in amounts not less than $[*] per illness or injury.
(b) GSI shall maintain commercial general liability insurance
for bodily injury, property damage, personal injury, blanket contractual,
independent contractors, severability of interest and advertising injury, as
those terms are defined by its commercial general liability insurance policies,
with limits of not less than $[*] each occurrence and $[*] in the aggregate. If
GSI's policy of commercial general liability insurance required under this
Agreement is written on a claims-made basis, GSI shall provide "tail coverage"
for claims made for a minimum of one year following the expiration or earlier
termination of this Agreement (and such coverage shall be expressly set forth in
the applicable certificate of insurance). GSI shall furnish certificates of
insurance annually to the Company as evidence of this required insurance. The
Company and any other additional insureds required to be named in GSI's
insurance policies under this Agreement, and their respective officers,
directors, employees, agents and invitees, shall be included as additional
insureds for the commercial general liability coverage required to be maintained
by GSI under this Agreement.
(c) GSI shall maintain special purpose (all risk) property
insurance providing coverage for GSI's property and business interruption/loss
of income/extra expense insurance in an amount not less than $[*].
(d) GSI shall maintain errors and omissions insurance
providing coverage for GSI's wrongful act(s) in GSI's performance of technology
services or result in the failure of GSI's technology products to perform the
function or serve the purpose intended. Such errors and omissions insurance
shall be provided in amounts not less than $[*] per wrongful act.
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14.7 Notices. Unless otherwise provided, all notices, consents or other
communications required or permitted to be given under this Agreement must be in
writing and shall be deemed to have been duly given (a) when delivered
personally, (b) three business days after being mailed by first class mail,
postage prepaid, or (c) one business day after being sent by a reputable
overnight delivery service, postage or delivery charges prepaid, to the parties
at their respective addresses stated on the signature page of this Agreement.
Notices may also be given by electronic mail or facsimile and shall be effective
on the date transmitted if confirmed within 24 hours thereafter by a signed
original sent in the manner provided in the preceding sentence. Notices to GSI
shall be sent to its address stated on the signature page of this Agreement to
the attention of its General Counsel, with a copy sent simultaneously to the
same address to the attention of its Chief Financial Officer. Notices to the
Company shall be sent to its address stated on the signature page of this
Agreement to the attention of its General Counsel, with a copy sent
simultaneously to its Chief Financial Officer. Any party may change its address
for notice and the address to which copies must be sent by giving notice of the
new addresses to the other parties in accordance with this Section 14.7, except
that any such change of address notice shall not be effective unless and until
received.
14.8 Assignment. Neither Party may assign this Agreement or any of its
rights or obligations hereunder, whether voluntarily, involuntarily, by
operation of law or otherwise, without the other Party's prior written consent,
except to (a) a wholly-owned subsidiary of such Party,; provided that such Party
shall require, as a condition to such assignment, any assignee or successor to
all or substantially all of its business or assets to assure and agree in
writing to perform this Agreement and to be bound by all the terms and
conditions of this Agreement in the same manner and to the same extent that such
Party would be required to perform or would be bound if no assignment or
succession had taken place. Subject to the foregoing, this Agreement will be
binding on and enforceable by the Parties and their respective successors and
permitted assigns.
14.9 Amendment. This Agreement may be amended, modified or supplemented
by the Parties, provided that any such amendment, modification or supplement
shall be in writing and signed by the Parties.
14.10 Waiver. No waiver by a Party with respect to this Agreement will
be effective or enforceable against a Party unless in writing and signed by that
Party. Except as otherwise expressly provided herein, no failure to exercise,
delay in exercising, or single or partial exercise of any right, power or remedy
by a Party, and no course of dealing between or among any of the Parties, will
constitute a waiver of, or shall preclude any other or further exercise of the
same or any other right, power or remedy.
14.11 Counterparts and Transmitted Copies. This Agreement may be
executed in any number of counterparts, each of which when executed and
delivered will be deemed an original, but all of which taken together will
constitute but one and the same instrument, and it will not be necessary in
making proof of this Agreement to produce or account for more than one original
counterpart hereof. The Parties acknowledge that Transmitted Copies of this
Agreement will be equivalent to original documents until such time (if any) as
original documents are completely executed and delivered. "Transmitted Copies"
means copies which are reproduced or transmitted via facsimile, or another
process of complete and accurate reproduction and transmission.
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14.12 Cost of Litigation. The prevailing Party in any legal action or
proceeding arising out of or relating to this Agreement shall be entitled to an
award of its reasonable attorneys' fees in connection therewith.
14.13 Entire Agreement. This Agreement, together with the schedules to
this Agreement, (a) represents the entire understanding between the Parties with
respect to the subject matter hereof and supersedes all previous oral or written
communications or agreements, and all contemporaneous oral communications and
agreements, between the Parties and their respective Affiliates regarding such
subject matter, and (b) may be amended or modified only by a written instrument
signed by a duly authorized agent of each Party. No breach of this Agreement by
either Party will affect the rights or obligations of either Party under any
other agreement between the Parties.
14.14 Severability. If any provision of this Agreement is construed to
be invalid, illegal or unenforceable, then the remaining provisions hereof will
not be affected thereby and will be enforceable without regard thereto.
14.15 CHOICE OF LAW. THIS AGREEMENT WILL BE INTERPRETED, CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE
TO ITS CHOICE OF LAW RULES.
14.16 Headings. The headings of sections and subsections of this
Agreement are for convenience of reference only and are not intended to
restrict, affect or otherwise influence the interpretation or construction of
any provision of this Agreement.
14.17 References. All words used in this Agreement shall be construed
to be of such number and gender as the context requires or permits. Unless a
particular context clearly provides otherwise (i) the words "hereof" and
"hereunder" and similar references refer to this Agreement in its entirety and
not to any specific section or subsection hereof, and (ii) the word "including"
shall mean including but not limited to.
14.18 Construction. The Parties agree that any rule of construction to
the effect that ambiguities are to be resolved against the drafting party shall
not be applied in the construction or interpretation of this Agreement or any
other agreements or documents delivered in connection with the transactions
contemplated by this Agreement.
*******************
(SIGNATURES APPEAR ON FOLLOWING PAGE)
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IN WITNESS WHEREOF, intending to be legally bound, the Parties hereby
execute this Agreement on the date first written above.
GSI COMMERCE SOLUTIONS, INC. PALM, INC.
By: /s/ Michael Rubin By: /s/ R.J. Bradley
---------------------------------- -------------------------------
Name: Michael Rubin Name: R.J. Bradley
Title: President & CEO Title: President & COO
Address: 1075 First Avenue Address:
King of Prussia, PA 19406
Telephone: (610) 265-3229 Telephone:
Facsimile: (610) 265-2866 Facsimile:
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Schedule "A"
Company Stores Links
At all times during the Term, the Company will include Company Stores Links on
the Company Site as set forth below:
o Prominent links to the Home Page of the Company Store, or such
other pages as the Parties may agree upon from time to time,
located above-the-fold on the Home Page of the Company Site. Such
links shall be at least as prominent as any and all other links
to third party Web Sites which sell Palm Products.
o Prominent links to each Company Store on the Company Site's
global navigation functionality. The Company shall not have links
on its global navigation functionality which link to third party
Web Sites which sell Palm Products; provided, however, that the
Company shall be permitted to include a link to the Palm Source,
Inc Web Site on its global navigation functionality.
o At least one promotional link to the main Company Stores, located
above the fold on the Home Page of the Company Site.
o Additional promotional links for product(s) offered on the
Company Stores integrated throughout relevant sections of the
Company Site.
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Schedule "B"
Functionality and Features
o Search and Browse
o Shopping Cart
o Online Checkout with Secure Ordering
o E-mail Notification of Orders
o Order Tracking
o User Login/Registration
o Affiliate Program Management
o Frequently Asked Questions
o "Contact Us" via Phone and eMail
o [*]
o Support multiple links to and from Palm.com web site
o Deliver a personalized shopping experience for users based on
user profiles.
o [*]
o Enable a customer to find and identify products, software or
services based upon key word searches, product images,
descriptions, sku #'s, and pricing.
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Schedule "C"
[*]
[*]
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Schedule "D"
Hosting of Site and Registration of URL Requirements
SSL Certificates
These certificates are used for secure e-commerce transactions. The certificates
certify that the customer is giving their personal information to a site that
indeed is an authorized representative of the store where they are shopping.
Verisign is the certification body and will need to contact an officer within
the company regarding our request for these SSL certificates as a third party.
Main store URL (domain): ____________________________
Internic registrant company name
for this domain: ____________________________
Company address:
(Corporate contact must be an officer in the company named above who has
sufficient authority to approve the validity of GSI's request to represent the
said company in e-commerce transactions)
Corporate contact: ____________________________
Title: ____________________________
Phone: ____________________________
Fax: ____________________________
Dun and Bradstreet number for
above company: ____________________________
DNS
DNS is the Internet address system which allows a customer to reach the new
store via the desired URL such as www.store.com. This needs to be changed at
least one week prior to the expected store launch so that the changes have been
propagated to all DNS servers on the Internet. Our policy is to support your
existing store ip address on our servers, so that even after the DNS has been
updated to point to our servers, your existing site will still be reachable
until we have launched the new store.
DNS Technical contact for main
URL listed above: ____________________________
Contact phone: ____________________________
Contact e-mail address: ____________________________
Secondary URLs that will be supported by GSI:
1. ___________________ Technical contact: _______________________
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2. ___________________ Technical contact: _______________________
3. ___________________ Technical contact: _______________________
List any additional on back.
E-mail Aliases
These are the e-mail aliases which customers will use associated with the
e-commerce store such as customerssupport@domain.com. If your company uses this
domain for mail, you need to add forwarding for the listed e-mail aliases below
that will point to the corresponding mailbox on our servers.
E-mail aliases which need to be created on your mail server:
Your mail server points to Our mail server
contactus@store.com storecustomersupport@gsicommerce.com
------------------------------------
webmaster@store.com storewebmaster@gsicommerce.com
------------------------------
info@store.com storecustomersupport@gsicommerce.com
------------------------------------
customerservice@store.com storecustomersupport@gsicommerce.com
------------------------------------
help@store.com storecustomersupport@gsicommerce.com
------------------------------------
customersupport@store.com storecustomersupport@gsicommerce.com
------------------------------------
specialoffers@store.com storespecialoffers@gsicommerce.com
----------------------------------
grandopening@store.com storegrandopening@gsicommerce.com
---------------------------------
newsletter@store.com storenewsletter@gsicommerce.com
-------------------------------
jobs@store.com corporate e-mail address for jobs at
your company
For example, if the main domain is palm.com, then the first e-mail alias mapping
would be:
contactus@palm.com forwards to palmcustomersupport@gsicommerce.com
Who to contact for updating company
e-mail server with new aliases: __________________________
Phone: __________________________
E-mail: __________________________
___________________________________________ __________________________
Your name Title Date
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Schedule "E"
Order Processing and Fulfillment
o Order receipt, confirmation and processing (including high
quantity Orders placed via purchase orders from educational
institutions, government agencies and corporations)
o Establishment of terms and conditions of sale of Merchandise
o Fraud screening and credit checks (including, if appropriate,
obtaining D&B reports)
o Credit card authorization and processing and collection of
proceeds
o Invoicing for Orders placed via purchase orders accepted by GSI
o Inventory receipt, control and management
o Pick, pack and ship Orders
o Shipping management and tracking
o Returns processing
o Testing Returns using good faith efforts to comply with the
attached Testing Specifications
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Schedule "F"
Testing Specifications
1. Introduction
This documentation describes the manual functional test procedure for the Palm
viewers. This test is performed AFTER the unit has been assembled.
2. Requirements
[*]
3. Test Procedure
[*]
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Appendix A - Beaming
[*]
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Schedule "G"
Company Trademark Use Guidelines
GSI shall not, with respect to the Trademarks of the Company:
o alter the overall design, color or shape of any such Trademarks
o commingle or combine any such Trademarks with any other mark
o use any other mark that is confusingly similar to such Trademarks
o substitute designs or objects for letters in any Trademark
o use in conjunction with any illegal, immoral, obscene or pornographic
activities
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