License and E-Commerce Agreement [Amendment No. 1] - The Sports Authority Inc., The Sports Authority Michigan Inc., GSI Commerce Solutions Inc.
First Amendment to License and E-Commerce Agreement
This First Amendment (the "Amendment") to the License and E-Commerce
Agreement (the "Agreement"), dated as of July 6, 2001, by and between The Sports
Authority, Inc. ("TSA"), The Sports Authority Michigan, Inc. ("TSAMI") and GSI
Commerce Solutions, Inc. (f/k/a Global Sports Interactive, Inc.) ("GSI"), is
made as of January 3, 2003. All capitalized terms not specifically defined
herein shall have the meaning ascribed to them pursuant to the Agreement.
RECITALS
WHEREAS, GSI, TSA and TSAMI entered into the Agreement pursuant to which
GSI operates the TSA.com Site; and
WHEREAS, GSI, TSA and TSAMI desire to enter into this Amendment to the
Agreement in order to clarify certain rights and obligations among them.
NOW, THEREFORE, intending to be legally bound, and in consideration of the
mutual obligations contained herein and in the Agreement, the Parties agree as
follows:
1. Amendments.
1.1 Section 1.18 (the definition of Land Based Stores Gift Certificates)
of the Agreement is hereby deleted in its entirety.
1.2 Section 1 of the Agreement is hereby amended by adding a definition of
"Universal Gift Cards" between the definitions of "TSA.com Site" and "URL". Such
new definition hereby reads as follows:
""Universal Gift Cards" means gift certificates, pre-programmed gift cards,
and other successor forms of gift certificates or gift cards, bearing any
one of the marks THE SPORTS AUTHORITY, THE SPORTS AUTHORITY & Design,
SPORTS AUTHORITY or SPORTS AUTHORITY & Design, printed and distributed by
Licensor and which are offered for sale and redeemable in both the TSA
Stores and through the TSA.com Site."
1.3 Section 1.25 (the definition of Net Revenue) of the Agreement is
hereby amended by amending and restating subsection (iii) as follows:
"(iii) sales and redemptions of Universal Gift Cards;"
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1.4 Section 2.5 of the Agreement is hereby amended by deleting the words
"TSA Land Based Stores Gift Certificates" in subsection (ii) and replacing it
with the words "Universal Gift Cards".
1.5 Section 4.7 of the Agreement is hereby amended and restated in its
entirety to read as follows:
"4.7 Universal Gift Cards.
(a) Licensee shall sell and, subject to obtaining the ability to
verify Universal Gift Card account balances as contemplated herein, accept for
redemption, Universal Gift Cards through the TSA.com Site in accordance with
this Section 4.7, provided that such sales and/or redemptions by Licensee do not
subject it to nexus with any state for sales tax purposes. In the event that
Licensee determines in good faith that such sales and/or redemptions by Licensee
subject it, or may subject it, to nexus with any state for sales tax purposes,
then Licensee shall provide Licensor notice of such determination and each
Party's obligations pursuant to this Section 4.7, other than each Party's
payment obligations for any transactions occurring prior to the date of such
notice, shall automatically terminate as of the date of such notice. Subject to
the foregoing, Licensor will furnish to Licensee quantities of Universal Gift
Cards as reasonably requested from time to time by Licensee. Each party shall be
responsible for escheat duties with respect to Universal Gift Cards issued or
sold by it to customers.
(b) Orders for Universal Gift Cards through the TSA.com Site will be
fulfilled by Licensee in accordance with this Agreement. Upon receipt of an
Order for a Universal Gift Card, Licensee will promptly contact the Universal
Gift Card account administrator (the "Gift Card Administrator") for the purpose
of providing the purchase information necessary to update the Universal Gift
Card account database.
(c) Subject to the terms and conditions herein, Licensee will accept
payment through Universal Gift Cards for the sale of Merchandise through the
TSA.com Site. Licensor will authorize the Gift Card Administrator to permit
Licensee to directly access, through a secure connection, the Universal Gift
Card database to permit Licensee, on a real-time basis, to validate balances for
Universal Gift Cards.
(d) Within thirty (30) days after the end of each quarter of
Licensee's fiscal year, Licensor and Licensee shall each provide to the other
the information necessary to determine the payments set forth below. Within
forty-five (45) days after the end of each quarter of Licensee's Fiscal Year,
Licensor or Licensee, as the case may be, shall owe the other Party the net
amount determined by adding 4.7(d)(i) and 4.7(d)(ii) below:
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(i) Licensor shall owe Licensee an amount equal to [*]%
of the aggregate portion of the face value of Licensee Redeemed Cards
redeemed during the applicable quarter; and
(ii) Licensee shall owe Licensor an amount equal to [*]%
of the aggregate portion of the face value of Licensor Redeemed Cards
redeemed during the applicable quarter [*].
(iii) For purposes of this Section 4.7(d), "Licensee
Redeemed Cards" means Universal Gift Cards which were sold by Licensor and
redeemed by Licensee. For purposes of this Section 4.7(d), "Licensor
Redeemed Cards" means Universal Gift Cards which were sold by Licensee and
redeemed by Licensor.
(e) Licensor will authorize the Gift Card Administrator to provide,
Licensee, in reasonably requested formats and at reasonably requested intervals,
with (i) all required technical specifications to permit Licensee to submit and
receive data concerning Universal Gift Cards, (ii) reports which are necessary
or desirable to permit Licensee to review, track and reconcile all applicable
Universal Gift Card transactions, and (iii) such other reasonably requested
information and reports concerning the Universal Gift Cards.
1.6 Section 9 of the Agreement is hereby amended by inserting in the first
sentence thereof after "TSA Stores" the words "or at such other locations
selected by Licensor" and by deleting the words "at such TSA Stores" from the
second sentence thereof.
1.7 Exhibit J1 of the Agreement is hereby amended by deleting the "1/4"
Inside Footers" heading of the last column of the first table (Circular:
Integration Space Requirements) and replacing it with the heading "1/2" Inside
Footer".
2. Miscellaneous.
2.1 Except as specifically amended herein, the Agreement shall remain in
full force and effect in accordance with its terms.
2.2 This Amendment may be executed in one or more counterparts, each of
which shall be deemed an original and all of which shall constitute one
agreement.
2.3 This Amendment shall be governed in all respects by Delaware law
without regard to conflict of law principles.
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IN WITNESS WHEREOF, intending to be legally bound, each of the parties have
caused their duly authorized representatives to enter into this Agreement on the
date first written above.
GSI Commerce Solutions, Inc.
(F/K/A/ Global Sports Interactive, Inc.) The Sports Authority, Inc.
By: /s/ Steven Davis By: /s/ Martin E. Hanaka
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Name: Steven Davis Name:
Title: SVP Marketing Title:
Address: 1075 First Avenue Address: 3383 North State Road 7
King of Prussia, PA 19406 Fort Lauderdale, FL 33319
Telephone: (610) 265-3229 Telephone: (954) 735-1701
Facsimile: (610) 265-2866 Facsimile: (954) 730-4288
The Sports Authority Michigan, Inc.
By: /s/ Martin E. Hanaka
--------------------
Name:
Title:
Address: 3383 North State Road 7
Fort Lauderdale, FL 33319
Telephone: (954) 735-1701
Facsimile: (954) 730-4288
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