Systems Integrator Agreement - Complete Business Solution (India) Ltd. and Netgateway
SYSTEMS INTEGRATOR AGREEMENT
THIS SYSTEMS INTEGRATOR AGREEMENT (this "Agreement") entered into as of
4th day of April, 2000, is between Complete Business Solutions (India)
Limited, a company incorporated under the Companies Act, 1956, of India,
("Systems Integrator"), having its registered office at Unit 13, Block 2, SDF
Buildings, Madras Export Processing Zone, Chennai 600 045, India, and
Netgateway, a Nevada corporation ("Netgateway"), having its principal offices
at 300 Oceangate, 5th Floor, Long Beach, CA 90802.
RECITALS
WHEREAS, Netgateway owns and has the right to grant access to the
Netgateway Internet Commerce Center-TM- (the "Netgateway ICC");
WHEREAS, Systems Integrator desires to resell access to the Netgateway ICC
to end-user Subscribers (as defined below) and to provide all implementation and
integration services necessary for such Subscribers to access and use the
Netgateway ICC.
WHEREAS, Netgateway and Systems Integrator now wish to enter into this
Agreement, pursuant to which Netgateway shall provide access to and hosting of
the Netgateway ICC, and Systems Integrator will resell and provide
implementation and integration services in respect of the Netgateway ICC to
end-user Subscribers;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties, Netgateway and
Systems Integrator hereby agree as follows:
1. APPOINTMENT AS RESELLER OF NETGATEWAY ICC
1.1 APPOINTMENT. Subject to the provisions of this Agreement, Netgateway
hereby appoints Systems Integrator as a non-exclusive reseller and distributor
to resell access to the Netgateway ICC to Subscribers and to provide any and all
implementation and integration services (the "eCommerce Services") necessary for
such Subscribers to access and use the Netgateway ICC. Systems Integrator
accepts such appointment and responsibility on the terms and conditions set
forth herein.
1.2 GRANTS. Subject to the other provisions of this Agreement:
(a) SERVICES RIGHTS. Netgateway hereby grants to Systems Integrator
the right to use the Netgateway ICC, including all software, systems and other
technology comprising the Netgateway ICC, solely in connection with the
provision of the eCommerce Services to Subscribers. Except as may otherwise be
provided in any Electronic Commerce Services Agreement between and among
Netgateway, Systems Integrator and a particular Subscriber, Netgateway shall be
responsible solely for providing access to the Netgateway ICC and hosting
Subscriber's Netgateway ICC website.
(b) ACCESS PROCEDURES. Netgateway shall, in its sole discretion,
establish procedures (the "Access Procedures") for access to and use of the
Netgateway ICC by Systems Integrator on behalf of Subscribers, which Access
Procedures shall be binding upon Systems Integrator. A copy of the Access
Procedures is annexed hereto as Exhibit B. Failure to comply with the Access
Procedures shall constitute a breach of this Agreement.
<PAGE>
(c) INTELLECTUAL PROPERTY RIGHTS. Any intellectual property rights
developed by Systems Integrator provider in connection with the grants under
this Agreement and the provision of the eCommerce Services (the "Intellectual
Property Rights") shall be owned by Netgateway, and Systems Integrator
irrevocably assigns to Netgateway all right, title and interest worldwide in and
to such Intellectual Property Rights. If Systems Integrator has any rights to
such Intellectual Property Rights that cannot be assigned to Netgateway, Systems
Integrator unconditionally and irrevocably waives the enforcement of such
rights, and all claims and causes of action of any kind against Netgateway with
respect to such rights, and agrees, at Netgateway's request and expense, to
consent to and join in any action to enforce such rights. If Systems Integrator
has any rights to such Intellectual Property Rights that cannot be assigned to
Netgateway or waived by Systems Integrator, Systems Integrator unconditionally
and irrevocably grants to Netgateway during the term of such rights, an
exclusive, irrevocable, perpetual, worldwide, fully paid and royalty-free
license, with rights to sublicense through multiple levels of sublicense, to
reproduce, create derivative works of, distribute, publicly perform and publicly
display by all means now known or later developed, such rights. For purposes of
this Agreement, "Intellectual Property Rights" shall not include any business
techniques, methods or procedures utilized by Systems Integrator in it business
operations prior to the date hereof, but shall include all deliverables
delivered by Systems Integrator hereunder in the provision of eCommerce
Services.
(d) USE OF TRADEMARKS. Subject to the provision of this Section
1.2(d), each of Netgateway and Systems Integrator grants to the other a
non-exclusive, limited license to use its name, trademarks and logos
(collectively, the "Trademarks" and singularly the "Netgateway Trademarks" and
the "Systems Integrator Trademarks") solely in advertising and printed
promotional materials for the Netgateway ICC and the eCommerce Services. Each
party acknowledges that use of the other parties' Trademarks will not create in
it, nor will it represent it has any right, title or interest in or to the other
parties' Trademarks. Each party acknowledges the other parties' exclusive
ownership of its own Trademarks and agrees not to do anything to impair or
dilute the other party's rights in its own Trademarks. Each party agrees to
display prominently the acknowledgment of the other party's trademark ownership
of any Trademark the first time it is used in any advertising or promotional
materials. Systems Integrator agrees to include the Netgateway Trademarks on all
copies, advertisements, brochures, manuals and other appropriate uses made in
the promotion, license or use of the Netgateway ICC or the eCommerce Services.
Each party agrees that the nature and quality of any products or services it
supplies in connection with the Trademarks shall conform to the standards set by
the owner of the Trademark. Each party agrees to cooperate with the other party
in facilitating the monitoring and control of the nature and quality of such
products and services.
1.3 MARKETING AND ACCESS. Systems Integrator shall promote, market and
distribute access to the Netgateway ICC, such access and the eCommerce Services
only to be provided to subscribers ("Subscribers") who enter into an Electronic
Commerce Services Agreement in the form attached hereto as Exhibit A. The
parties acknowledge that there may be certain potential conflicts between the
parties concerning potential Subscribers and who has the right to distribute
access to the Netgateway ICC to such Subscribers. The parties will negotiate in
good faith to resolve any such conflicts.
1.4 NETGATEWAY ICC ACCESS AND USE. Subject to the terms and conditions of
this Agreement and any Electronic Commerce Services Agreement entered into among
Netgateway, Systems Integrator and any Subscriber, Netgateway will provide to
Systems Integrator and Subscribers access to and use of the Netgateway ICC.
1.5 AVAILABILITY. The Netgateway ICC will be available to Systems
Integrator and Subscribers twenty-four (24) hours a day, seven (7) days a week.
Netgateway reserves the right upon reasonable notice to limit or curtail holiday
or weekend availability when necessary for system upgrades, adjustments,
maintenance or other operational considerations.
1.6 ENHANCEMENTS. General enhancements to the Netgateway ICC, as well as
new features that Netgateway incorporates into its standard electronic commerce
processing system, regardless of whether they are initiated by Netgateway or
developed by or at the request of Systems Integrator or any Subscriber, shall be
made available to Subscribers at no additional cost. All enhancements to the
Netgateway ICC, whether or not made by
Page 2 of 16
<PAGE>
or at the request or suggestion of Systems Integrator or any Subscriber, and any
new features or services introduced by Netgateway, shall remain the exclusive
proprietary property of Netgateway.
1.7 SERVICES AND TRAINING. Systems Integrator shall have the sole
responsibility for providing the eCommerce Services to Subscribers and, except
for providing the training described in the next sentence, Netgateway shall have
no responsibility with respect to providing the eCommerce Services. Netgateway
shall provide to Systems Integrator's personnel such onsite training and other
assistance as Netgateway deems necessary to assure that Systems Integrator's
personnel are able to provide access and use of the Netgateway ICC by the
Subscribers. On-site training shall take place at such times and places as are
mutually agreeable to the parties hereto.
1.8 SUBSCRIBER DATA.
(a) CONFIDENTIALITY. Each party acknowledges that all records, data,
files and other input material relating to Subscriber are confidential and shall
take reasonable steps to protect the confidentiality of such records, data,
files and other materials. Each party will provide reasonable security
safeguards to limit access to Subscriber's files and records to Subscriber and
other authorized parties.
(b) PROTECTION OF SUBSCRIBER FILES. Each party will take reasonable
steps to protect against the loss or alteration of Subscribers' files, records
and data retained by such party. Each party will maintain backup file(s)
containing all the data, files and records related to Subscribers. Subscribers'
file(s), records and data shall, at no cost to Subscribers, be released to
Subscribers on an occurrence that renders either party unable to perform
hereunder, or upon the termination of this Agreement as provided herein.
However, upon any termination, Netgateway may, but is not obligated to, delete
archived data.
2. FEES AND BILLING.
2.1 ACCESS DEVELOPMENT FEES. Systems Integrator shall pay Netgateway an
"Access Development Fee" of [REDACTED] for each Subscriber that enters into an
Electronic Commerce Services Agreement. All Access Development Fees shall be due
and payable by Systems Integrator to Netgateway upon the execution of a
particular Electronic Commerce Services Agreement. Notwithstanding the
foregoing, Systems Integrator shall pay to Netgateway [REDACTED], which shall
entitle Systems Integrator to have all Access Development Fees waived with
respect to the first two Subscribers that enter into Electronic Commerce Service
Agreements with Systems Integrator and Netgateway, and which shall be payable on
the earlier of: (a) the date on which Systems Integrator enters into a binding
agreement with a Subscriber or (b) December 31, 2000.
2.2 SUBSCRIBER DEVELOPMENT FEES. Systems Integrator shall be entitled to
all development fees ("Subscriber Development Fees") received by Systems
Integrator from Subscribers pursuant to any Electronic Commerce Services
Agreements, except as otherwise agreed by Netgateway and Systems Integrator.
2.3 TRANSACTION FEES. Netgateway and Systems Integrator agree to share all
fees generated by a Subscriber's use of the Netgateway ICC (excluding the
Subscriber Development Fees) (the "Transaction Fees"), as set forth in the last
sentence hereof. Such Transaction Fees shall be paid initially by Subscribers to
Netgateway and shall include any hosting, per transaction, click-through,
affiliate and advertising fees paid by Subscribers pursuant to any Electronic
Commerce Services Agreement. Systems Integrator shall be entitled to [REDACTED]
of all Transaction Fees and Netgateway shall be entitled to [REDACTED] of all
Transaction Fees. Should Systems Integrator choose to increase the Access
Development Fee it pays Netgateway under paragraph 2.1 for a particular
Subscriber to [REDACTED] (prior to entering into any Electronic Commerce
Services Agreement), then Systems Integrator shall be entitled to [REDACTED] of
all Transaction Fees and Netgateway shall be entitled to [REDACTED] of all
Transaction Fees with respect to that Subscriber. Should Systems Integrator
choose to increase the Access Development Fee it pays Netgateway under paragraph
2.1 for a particular Subscriber to [REDACTED] (prior to entering into any
Electronic Commerce Services Agreement), then Systems Integrator shall
thereafter be entitled to [REDACTED] of all Transaction Fees and Netgateway
shall be entitled to
Page 3 of 16
<PAGE>
[REDACTED] of all Transaction Fees with respect to that Subscriber. All amounts
due to Systems Integrator under this paragraph 2.3 shall be payable within
thirty days of Netgateway's receipt of such funds.
2.4 CHANGES TO FEES AND CHARGES. Netgateway and Systems Integrator shall
each be entitled to modify the Transaction Fees and to institute new charges to
Subscribers, upon thirty (30) days prior notice to the other party to this
Agreement and to the affected Subscriber(s).
2.5 LATE PAYMENTS. Late payments hereunder will accrue interest at a rate
of one and half percent (1 1/2%) per month, or the highest rate allowed by
applicable law, whichever is lower.
2.6 TAXES, UTILITIES AND EXCLUSIONS. All fees and charges shall be
exclusive of any federal, state or local sales, use, excise, AD VALOREM or
personal property taxes levied, or any fines, forfeitures or penalties assessed
in connection therewith, as a result of this Agreement or the provision of the
eCommerce Services hereunder. Any such taxes which may be applicable shall be
paid by Systems Integrator or Subscriber, as applicable. Taxes chargeable
against the income or gross receipts of the parties hereto or assessed in
connection with the parties' employees (i.e., FICA, withholdings taxes and other
related payroll taxes) shall be payable solely by the party against which such
amounts are assessed.
2.7 BANDWIDTH. Netgateway shall provide burstible at 1 megabit per second
capacity bandwith for Subscribers' websites at no additional charge. Should
Subscribers need additional bandwidth, Netgateway will provide or make
arrangements to provide such additional bandwidth and invoice Subscribers for
such excess bandwidth and/or use beyond a 1 megabit per second burstible line.
Netgateway will provide traffic reports to Subscribers with respect to burstible
capacity. Netgateway shall not be responsible for providing connectivity to
Subscribers' offices.
3. SYSTEMS INTEGRATOR'S OBLIGATIONS.
3.1 COMPLIANCE WITH LAW AND RULES AND REGULATIONS. Systems Integrator
agrees that Systems Integrator will comply at all times with all applicable laws
and regulations (including but not limited to policies and laws related to
spamming, privacy (including any European privacy laws), obscenity or
defamation) and Netgateway's general rules and regulations relating to its
provision of eCommerce Services, currently included herein as Section 10, which
may be updated and provided by Netgateway to Systems Integrator from time to
time ("Rules and Regulations"). Systems Integrator acknowledges that Netgateway
exercises no control whatsoever over the content contained in or passing through
the Subscriber's web sites or malls, and that it is the sole responsibility of
Subscribers to ensure that the information they transmit and receive complies
with all applicable laws and regulations.
3.2 INTEGRATION; ACCESS AND SECURITY. Systems Integrator is obligated to
perform all implementation, development and integration work with respect to its
Subscribers and to provide any necessary ongoing maintenance or development work
in respect of Subscriber's website(s) for the term of any applicable Electronic
Commerce Services Agreement. Systems Integrator shall be fully responsible for
any charges, costs, expenses (other than those included in the eCommerce
Services), and third party claims that may result from its use of, or access to,
the Netgateway ICC in connection with the integration services to be rendered
under this Agreement, including, but not limited to, any unauthorized use of the
Netgateway ICC in respect of the provision of such services. Systems Integrator
shall be responsible for obtaining and maintaining any equipment and ancillary
services needed to connect to, access or otherwise use the Netgateway ICC,
including, without limitation, modems, hardware, servers, software, operating
systems, networking, web servers, long distance and local telephone services
(collectively, "Equipment"). Systems Integrator shall be responsible for
ensuring that such Equipment is compatible with the Netgateway ICC (and, to the
extent applicable, the Software) and complies with all configurations and
specifications set forth in Netgateway's published policies then in effect.
Systems Integrator shall also be responsible for maintaining the security of the
Equipment, Subscribers' accounts, passwords (including, but not limited to,
administrative and user passwords) and files, and for all uses of Systems
Integrator or Subscriber accounts or the Equipment.
Page 4 of 16
<PAGE>
3.3 NO COMPETITIVE SERVICES. Systems Integrator may not at any time permit
the Netgateway ICC to be used for the provision of any services that compete
with any services provided by Netgateway, without Netgateway's prior written
consent.
3.4 INSURANCE.
(a) MINIMUM LEVELS. Systems Integrator will keep in full force and
effect during the term of this Agreement comprehensive general liability and
such other business insurance policies necessary to fully insure the integration
services to be provided by Systems Integrator hereunder, on such terms as may be
customary under applicable Indian law. Systems Integrator also agrees that it
will be solely responsible for ensuring that its agents (including contractors
and subcontractors) maintain insurance at levels no less than those required by
applicable law and customary in Systems Integrator's industries.
(b) CERTIFICATES OF INSURANCe. Prior to the date hereof, Systems
Integrator will furnish Netgateway with certificates of insurance which evidence
the minimum levels of insurance set forth above, and will notify Netgateway in
writing in the event that any such insurance policies are cancelled.
(C) NAMING NETGATEWAY AS AN ADDITIONAL INSURED. Systems Integrator
agrees to use reasonable commercial efforts under applicable Indian law to cause
its insurance provider(s) to name Netgateway as an additional insured and notify
Netgateway in writing of the effective date thereof.
4. CONFIDENTIAL INFORMATION.
4.1 CONFIDENTIAL INFORMATION. Each party acknowledges that it will have
access to certain confidential information of the other party concerning the
other party's business, plans, customers, technology, and products, including,
without limitation, the Netgateway ICC and the terms and conditions of this
Agreement ("Confidential Information"). Confidential Information will include,
but not be limited to, each party's proprietary source, software and related
components and customer information. Each party agrees that it will not use in
any way, for its own account or the account of any third party, except as
expressly permitted by this Agreement, nor disclose to any third party (except
as required by law or to that party's attorneys, accountants and other advisors
as reasonably necessary), any of the other party's Confidential Information and
will take reasonable precautions to protect the confidentiality of such
information.
4.2 EXCEPTIONS. Information will not be deemed Confidential Information
hereunder if the receiving party can prove such information: (i) is known to the
receiving party prior to receipt from the disclosing party directly or
indirectly from a source other than one having an obligation of confidentiality
to the disclosing party; (ii) becomes known (independently of disclosure by the
disclosing party) to the receiving party directly or indirectly from a source
other than one having an obligation of confidentiality to the disclosing party;
or (iii) becomes publicly known or otherwise ceases to be secret or
confidential, except through a breach of this Agreement by the receiving party.
5. REPRESENTATIONS AND WARRANTIES.
5.1 WARRANTIES BY SYSTEMS INTEGRATOR
(a) SYSTEMS INTEGRATOR. Systems Integrator represents and warrants
that:
(i) Systems Integrator's services, products, materials and
information provided to a Subscriber in connection with this Agreement as
well as Subscriber's use of the Netgateway ICC (collectively, "Systems
Integrator's Business") do not as of the date hereof, and will not during
the term of this Agreement, violate any applicable law or regulation.
(ii) Systems Integrator owns or has the right to use
all material used in the connection with the provision of the eCommerce
Services; and
Page 5 of 16
<PAGE>
(iii) the eCommerce Services will not (A) infringe or
misappropriate any copyright, patent, trademark, trade secret, or any other
proprietary rights of a third party; or (B) constitute false advertising,
unfair competition, defamation, an invasion of privacy or violate any right
of publicity.
(b) RULES AND REGULATIONS. Systems Integrator has read the Rules and
Regulations (Section 10 below) and represents and warrants that Systems
Integrator and Systems Integrator's Business are currently in full compliance
with the Rules and Regulations, and will remain so at all times during the term
of this Agreement.
(c) BREACH OF WARRANTIES. In the event of any breach, or reasonably
anticipated breach, of any of the foregoing warranties, in addition to any other
remedies available at law or in equity, Netgateway will have the right
immediately in Netgateway's reasonable discretion, to suspend any further access
or use of the Netgateway ICC if deemed reasonably necessary by Netgateway to
prevent any harm to Netgateway or its business.
5.2 WARRANTIES AND DISCLAIMERS BY NETGATEWAY.
(a) NO OTHER WARRANTY. THE NETGATEWAY ICC IS PROVIDED ON AN "AS IS"
BASIS, AND SYSTEMS INTEGRATOR'S USE OF THE NETGATEWAY ICC IS AT ITS OWN RISK.
EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN, NETGATEWAY DOES NOT MAKE, AND
HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND/OR IMPLIED WARRANTIES,
INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM
A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. NETGATEWAY DOES NOT WARRANT THAT
THE NETGATEWAY ICC WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE.
(b) DISCLAIMER OF ACTIONS CAUSED BY AND/OR UNDER THE CONTROL OF THIRD
PARTIES. NETGATEWAY DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM THE
NETGATEWAY ICC AND OTHER PORTIONS OF THE INTERNET. SUCH FLOW DEPENDS IN LARGE
PART ON THE PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD
PARTIES. AT TIMES, ACTIONS OR INACTIONS CAUSED BY THESE THIRD PARTIES CAN
PRODUCE SITUATIONS IN WHICH A SUBSCRIBERS' CONNECTIONS TO THE INTERNET (OR
PORTIONS THEREOF) MAY BE IMPAIRED OR DISRUPTED. ALTHOUGH NETGATEWAY WILL USE
COMMERCIALLY REASONABLE EFFORTS TO TAKE ACTIONS IT DEEMS APPROPRIATE TO REMEDY
AND AVOID SUCH EVENTS, NETGATEWAY CANNOT GUARANTEE THAT THEY WILL NOT OCCUR.
ACCORDINGLY, NETGATEWAY DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR
RELATED TO SUCH EVENTS.
6. LIMITATIONS OF LIABILITY.
6.1 EXCLUSIONS. EXCEPT FOR ANY BREACH OF SECTIONS 4, 7 OR 10, IN NO EVENT
WILL EITHER PARTY BE LIABLE TO ANY THIRD PARTY FOR ANY CLAIMS ARISING OUT OF OR
RELATED TO THIS AGREEMENT OR OTHERWISE, NOR FOR ANY LOST REVENUE, LOST PROFITS,
REPLACEMENT GOODS, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, INCIDENTAL, PUNITIVE,
INDIRECT OR CONSEQUENTIAL DAMAGES, LOSS OF DATA OR INTERRUPTION OR LOSS OF USE
OF SERVICE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER UNDER
THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.
6.2 LIMITATIONS. NEITHER PARTY, NOR ITS AFFILIATES, EMPLOYEES, OFFICERS
AND AGENTS SHALL BE LIABLE TO ANY THIRD PARTY FOR ANY LOSS OR DAMAGE, WHETHER
DIRECT OR INDIRECT, RESULTING FROM DELAYS OR INTERRUPTIONS OF SERVICE DUE TO
MECHANICAL ELECTRICAL OR WIRE DEFECTS OR DIFFICULTIES, STORMS, STRIKES,
WALK-OUTS, EQUIPMENT OR SYSTEMS FAILURES, OR OTHER CAUSES OVER WHICH SUCH PARTY
OR ITS AFFILIATES, EMPLOYEES, OFFICERS, OR AGENTS AGAINST WHOM LIABILITY IS
SOUGHT, HAVE NO REASONABLE CONTROL, OR FOR LOSS OR DAMAGE, DIRECT OR INDIRECT,
RESULTING FROM INACCURACIES, ERRONEOUS STATEMENTS, ERRORS OF FACTS, OMISSIONS,
OR ERRORS IN THE TRANSMISSION OR DELIVERY OF NETGATEWAY ICC OR THE ECOMMERCE
SERVICES, OR ANY DATA PROVIDED AS A PART OF THE NETGATEWAY ICC OR THE ECOMMERCE
SERVICES PURSUANT TO THIS AGREEMENT, EXCEPT TO THE EXTENT CAUSED BY THE GROSS
NEGLIGENCE OR WILLFULL MISCONDUCT OF NETGATEWAY OR SYSTEMS INTEGRATOR, AS THE
CASE MAY BE. EXCEPT FOR ANY BREACH OF SECTIONS 4, 7 OR 10, IN NO EVENT SHALL
EITHER PARTY BE LIABLE TO THE
Page 6 of 16
<PAGE>
OTHER PARTY OR TO ANY THIRD PARTY FOR SPECIAL, INDIRECT, INCIDENTAL, OR
CONSEQUENTIAL LOSSES OR DAMAGES WHICH OTHER PARTIES OR SUCH THIRD PARTY MAY
INCUR OR EXPERIENCE ON ACCOUNT OF ENTERING INTO OR RELYING ON THIS AGREEMENT OR
UTILIZING THE NETGATEWAY ICC OR THE ECOMMERCE SERVICES, REGARDLESS OF WHETHER
SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR WHETHER SUCH
DAMAGES ARE CAUSED, IN WHOLE OR IN PART, BY THE NEGLIGENCE OF SUCH PARTY.
6.3 MAXIMUM LIABILITY. EXCEPT FOR ANY BREACH OF SECTIONS 4, 7 OR 10, EACH
PARTY'S MAXIMUM AGGREGATE LIABILITY TO THE OTHER PARTY RELATED TO OR IN
CONNECTION WITH THIS AGREEMENT WILL BE LIMITED TO THE TOTAL AMOUNT OF FEES
RECEIVED BY EACH PARTY HEREUNDER.
6.4 TIME FOR MAKING CLAIMS. ANY SUIT OR ACTION BY SYSTEMS INTEGRATOR
AGAINST NETGATEWAY OR, ITS AFFILIATES, OFFICERS, DIRECTORS, AGENTS EMPLOYEES,
SUCCESSORS OR ASSIGNS, BASED UPON ANY ACT OR OMISSION ARISING OUT OF OR RELATING
TO THIS AGREEMENT, OR SERVICES PERFORMED HEREUNDER, OR ANY ALLEGED BREACH
THEREOF, SHALL BE COMMENCED WITHIN THREE (3) YEARS OF THE FIRST OCCURRENCE
GIVING RISE TO SUCH CLAIM OR BE FOREVER BARRED. THIS PROVISION DOES NOT MODIFY
OR OTHERWISE AFFECT THE LIMITATION OF LIABILITY SET FORTH IN SECTION 6 OR
ELSEWHERE IN THIS AGREEMENT.
6.5 SYSTEMS INTEGRATOR'S INSURANCE. SYSTEMS INTEGRATOR AGREES THAT IT WILL
NOT PURSUE ANY CLAIMS AGAINST NETGATEWAY FOR ANY LIABILITY NETGATEWAY MAY HAVE
UNDER OR RELATING TO THIS AGREEMENT UNTIL SYSTEMS INTEGRATOR FIRST MAKES CLAIMS
AGAINST SYSTEMS INTEGRATOR'S INSURANCE PROVIDER(S) AND SUCH INSURANCE
PROVIDER(S) FINALLY RESOLVE(S) SUCH CLAIMS.
6.6 BASIS OF THE BARGAIN; Failure of Essential Purpose. EACH PARTY
ACKNOWLEDGES THAT THE OTHER HAS SET ITS PRICES AND ENTERED INTO THIS AGREEMENT
IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES
AND DAMAGES SET FORTH HEREIN, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE
BARGAIN BETWEEN THE PARTIES. THE PARTIES AGREE THAT THE LIMITATIONS AND
EXCLUSIONS OF LIABILITY AND DISCLAIMERS SPECIFIED IN THIS AGREEMENT WILL SURVIVE
AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
7. INDEMNIFICATION.
7.1 NETGATEWAY'S INDEMNIFICATION OF SYSTEMS INTEGRATOR. Netgateway will
indemnify, defend and hold Systems Integrator harmless from and against any and
all costs, liabilities, losses, and expenses (including, but not limited to,
reasonable attorneys' fees) (collectively, "Losses") resulting from any claim,
suit, action, or proceeding (each, an "Action") brought against Systems
Integrator alleging the infringement of any third party registered U.S.
copyright, trademark or patent issued as of the date hereof resulting from the
provision of access and use of the Netgateway ICC pursuant to this Agreement
(but excluding any infringement contributorily caused by Systems Integrator's
Business).
7.2 SYSTEMS INTEGRATOR'S INDEMNIFICATION OF NETGATEWAY. Systems
Integrator will indemnify, defend and hold Netgateway, its affiliates
and customers harmless from and against any and all Losses resulting from or
arising out of (a) Systems Integrator's breach of any provision of this
Agreement or (b) any Action brought against Netgateway, its directors,
employees, affiliates or Subscribers alleging with respect to Systems
Integrator's Business or the provision of the eCommerce Services: (i)
infringement or misappropriation of any intellectual property rights; (ii)
defamation, libel, slander, obscenity, pornography, or violation of the
rights of privacy or publicity; (iii) spamming, or any other offensive,
harassing or illegal conduct or violation of the Rules and Regulations;
(iv) any violation of any other applicable law or regulation; or (v) any
claims, warranties or representations made by Systems Integrator or Systems
Integrator's employees or agents that differ from the warranty provided by
Netgateway in the Electronic Commerce Services Agreements.
7.3 NOTICE. Each party will provide the other party, prompt written notice
of the existence of any indemnifiable event under paragraph 7 of which it
becomes aware, and an opportunity to participate in the defense thereof.
Page 7 of 16
<PAGE>
8. Dispute Resolution.
8.1 PROCEDURES. It is the intent of the parties that all disputes arising
under this Agreement be resolved expeditiously, amicably and at the level within
each party's organization that is most knowledgeable about the disputed issue.
The parties understand and agree that the procedures outlined in this paragraph
8 are not intended to supplant the routine handling of inquiries and complaints
through informal contact with customer service representatives or other
designated personnel of the parties. Accordingly, for purposes of the procedures
set forth in this paragraph, a "dispute" is a disagreement that the parties have
been unable to resolve by the normal and routine channels ordinarily used for
such matters. Before any dispute arising under this Agreement, other than as
provided in paragraph 8.5 below, may be submitted to arbitration, the parties
shall first follow the informal and escalating procedures set forth below.
(a) The complaining party's representative will notify the
other party's representative in writing of the dispute, and the non-complaining
party will exercise good faith efforts to resolve the matter as expeditiously as
possible.
(b) In the event that such matter remains unresolved thirty (30) days
after the delivery of the complainant party's written notice, a senior
representative of each party shall meet or confer within ten (10) business days
of a request for such a meeting or conference by either party to resolve such
matter.
(c) In the event that the meeting or conference specified in (b) above
does not resolve such matter, the senior officer of each party shall meet or
confer within ten (10) business days of the request for such a meeting or
conference by either party to discuss and agree upon a mutually satisfactory
resolution of such matter.
(d) If the parties are unable to reach a resolution of the dispute
after following the above procedure, or if either party fails to participate
when requested, the parties may proceed in accordance with paragraph 8.2 below.
8.2 BINDING ARBITRATION. Except as provided in paragraph 8.5 below, any
dispute arising under this Agreement shall, after utilizing the procedures in
paragraph 8.1, be resolved by final and biding arbitration in Los Angeles,
California, before a single arbitrator selected by, and in accordance with the
rules of commercial arbitration of, the American Arbitration Association or as
otherwise provided in paragraph 11.6. Each party shall bear its own costs in the
arbitration, including attorneys' fees, and each party shall bear one-half of
the cost of the arbitrator.
8.3 ARBITRATOR'S AUTHORITY. The arbitrator shall have the authority to
award such damages as are not prohibited by this Agreement and may, in addition
and in a proper case, declare rights and order specific performance, but only in
accordance with the terms of this Agreement.
8.4 ENFORCEMENT OF ARBITRATOR'S AWARD. Any party may apply to a court of
general jurisdiction to enforce a arbitrator's award, and if enforcement is
ordered, the party against which the order is issued shall pay the costs and
expenses of the other party in obtaining such order, including responsible
attorneys' fees.
8.5 ACCESS TO COURTS. Notwithstanding the provisions of paragraphs 8.1 and
8.2 above, any action by Netgateway to enforce its rights under paragraph 10.3
of this Agreement or to enjoin any infringement of the same by Systems
Integrator may, at Netgateway's election, be commenced in the state or federal
courts of Los Angeles, California, and Systems Integrator consents to personal
jurisdiction and venue in such courts for such actions.
9. TERM AND TERMINATION.
9.1 TERM. This Agreement will be effective on the date first above written
and will terminate three (3) years ("Initial Term") from the date hereof, unless
earlier terminated according to the provisions of paragraph This Agreement will
automatically renew for one additional term of three (3) years unless a party
hereto elects not
Page 8 of 16
<PAGE>
to so renew and notifies the other party in writing of such election by a date,
which is six (6) months prior to the lapse of the Initial Term.
9.2 TERMINATION. Either party will have the right to terminate this
Agreement if: (i) for any reason or no reason, upon thirty (30) days' written
notice to the other party; (ii) the other party breaches any material term or
condition of this Agreement and fails to cure such breach within thirty (30)
days after receipt of written notice of the same, except in the case of failure
to pay fees, which must be cured within five (5) days after receipt of written
notice from the other party; (iii) the other party becomes the subject of a
voluntary petition in bankruptcy or any voluntary proceeding relating to
insolvency, receivership, liquidation or composition for the benefit of
creditors; or (iv) the other party becomes the subject of an involuntary
petition in bankruptcy or any involuntary proceeding relating to insolvency,
receivership, liquidation, or composition for the benefit of creditors, and such
petition or proceeding is not dismissed within sixty (60) days of filing.
9.3 NO LIABILITY FOR TERMINATION. Neither party will be liable to the
other for any termination or expiration of this Agreement in accordance with
its terms.
9.4 EFFECT OF TERMINATION. Except as set forth in paragraph 9.5, upon the
effective date of the expiration or termination of this Agreement: (a)
Netgateway will immediately cease providing Systems Integrator with access to
the Netgateway ICC for new Subscribers; (b) Systems Integrator shall immediately
cease providing eCommerce Services to its Subscribers hereunder; (c) any and all
payment obligations of Systems Integrator or Netgateway under this Agreement
will become due and payable immediately; and (d) within thirty (30) days after
such expiration or termination, each party will return all Confidential
Information of the other party in its possession at the time of expiration or
termination and will not make or retain any copies of such Confidential
Information, except as required to comply with any applicable legal or
accounting record keeping requirement.
9.5 TRANSITION SERVICES. In the event of any non-renewal of this Agreement
or any termination of this Agreement for any reason, the following provisions
("Transition Services") shall apply:
(a) Upon Netgateway's request, Systems Integrator shall continue to
perform its obligations hereunder with respect to the provision of eCommerce
Services for each Subscriber for the duration of the term of the then-current
Electronic Commerce Services Agreement for such Subscriber, in accordance with
the terms of such Agreement; PROVIDED, HOWEVER, that, as required under this
Agreement, Netgateway shall continue to pay Systems Integrator for the provision
of any such Services associated with each Subscriber for the duration of the
term of the then-current applicable Electronic Commerce Services Agreement and
the grants made by Netgateway pursuant to paragraph 1.2 hereunder survive during
such period to the extent necessary to provide such Transition Services;
(b) Systems Integrator shall cooperate fully with Netgateway in
effecting the orderly transfer of the eCommerce Services and related materials
to one or more third parties as directed by Netgateway, and Netgateway shall pay
Systems Integrator any reasonable fees or expenses incurred by it in connection
with such cooperation; and
(c) Upon Netgateway's request, Systems Integrator shall return to
Netgateway, or deliver to one or more third parties, as directed by Netgateway,
all copies of any documentation, Confidential Information, and all other
materials and items belonging to Netgateway or its suppliers.
9.6 SURVIVAL. The following provisions will survive any expiration or
termination of the Agreement: paragraphs 3, 4, 5, 6, 7, 8, 9, 10 and 11.
10. USE OF ECOMMERCE SERVICES - RULES AND REGULATIONS.
10.1 PROPRIETARY SYSTEMS. Systems Integrator acknowledges that all of the
software systems and components utilized by Netgateway in the Netgateway ICC,
including all enhancements thereto and the Intellectual Property Rights (as
defined in Section 1.2(c)), and all screens and formats used in connection
therewith are and shall be the exclusive proprietary property of Netgateway, and
Systems Integrator shall not
Page 9 of 16
<PAGE>
publish, disclose, display, provide access to or otherwise make available any
Netgateway software or products thereof, or any screens, formats, reports or
printouts used, provided, produced or supplied from or in connection therewith,
to any person or entity other than an employee of Systems Integrator without the
prior written consent of, and on terms acceptable to Netgateway, which consent
shall not be unreasonably withheld; PROVIDED, HOWEVER, that Systems Integrator
may disclose to a governmental or regulatory agency or to customers of Systems
Integrator any information expressly prepared and acknowledge in writing by
Netgateway as having been prepared for disclosure to such governmental or
regulatory agency or to such customers. Except as provided in Sections 1.2(d)
and 11.3, neither party shall disclose Systems Integrator's provision of
eCommerce Services in any advertising or promotional materials without the prior
written consent to such use, and approval of such materials, by the other. In
addition, this is a contract for access to the Netgateway ICC and the software
comprising the Netgateway ICC will be installed, accessed and maintained only by
or for Netgateway and no license is granted to Systems Integrator with respect
thereto. Systems Integrator will not, directly or indirectly, reverse engineer,
decompile, disassemble or otherwise attempt to discover the source code, object
code or underlying structure, ideas or algorithms of the Netgateway ICC or any
software, documentation or data related thereto ("Software"); modify, translate,
or create derivative works based on the Netgateway ICC or any Software; or copy,
rent, lease, distribute, pledge, assign, or otherwise transfer or encumber
rights to the Netgateway ICC or any Software; or, except as contemplated herein,
use the Netgateway ICC or any Software for timesharing or service bureau
purposes or otherwise for the benefit of a third party; or remove any
proprietary notices or labels.
10.2 USE OF SERVICES PERSONAL TO SYSTEMS INTEGRATOR. Systems Integrator
agrees that it will use and provide access to the Netgateway ICC only in
connection with the provision of eCommerce Services to its Subscribers, and it
will not, without the express written permission of Netgateway, sell, lease or
otherwise provide or make available the Netgateway ICC to any third party.
10.3 SURVIVAL OF OBLIGATIONS. The obligations of this paragraph 10 shall
survive termination of this Agreement. Systems Integrator understands that
the unauthorized publication or disclosure of any of Netgateway' software
or copies thereof, or the unauthorized use of the Netgateway ICC would
cause irreparable harm to Netgateway for which there is no adequate
remedy at law. Systems Integrator therefore agrees that in the event of
such unauthorized disclosure or use, Netgateway may, at its discretion and
at Systems Integrator's expense, terminate this Agreement, obtain immediate
injunctive relief in a court of competent jurisdiction, or take such other
steps as it deems necessary to protect its rights. If Netgateway, in its
reasonable, good faith judgment, determines that there is a material risk
of such unauthorized disclosure or use, it may demand immediate assurances,
satisfactory to Netgateway, that there will be no such unauthorized
disclosure or use. In the absence of such assurance, Netgateway may
immediately terminate this Agreement and take such other steps as it deems
necessary. The rights of Netgateway hereunder are in addition to any other
remedies provided by law.
11. MISCELLANEOUS PROVISIONS.
11.1 FORCE MAJEURE. Except for the obligation to pay money, neither party
will be liable for any failure or delay in its performance under this Agreement
due to any cause beyond its reasonable control, including act of war, acts of
God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute,
governmental act or failure of the Internet, provided that the delayed party:
(a) gives the other party prompt notice of such cause, and (b) uses its
reasonable commercial efforts to correct promptly such failure or delay in
performance.
11.2 NO LEASE. This Agreement is not intended to and will not constitute a
lease of any real or personal property. Systems Integrator acknowledges and
agrees that (i) it has been granted only the right to use the Netgateway ICC and
any equipment provided by Netgateway in connection with the provision of the
eCommerce Services in accordance with this Agreement, (ii) Systems Integrator
has not been granted any real property interest in the Netgateway ICC, and (iii)
Systems Integrator has no rights under this Agreement as a tenant or otherwise
under any real property or landlord/tenant laws, regulations or ordinances.
11.3 MARKETING. Systems Integrator agrees that Netgateway may refer to
Systems Integrator by trade name and trademark, and may briefly describe Systems
Integrator's Business in Netgateway's marketing materials and web site. Systems
Integrator hereby grants Netgateway a license to use any Systems Integrator
trade names and trademarks solely in connection with the rights granted to
Netgateway pursuant to this paragraph 11.3.
Page 10 of 16
<PAGE>
11.4 GOVERNMENT REGULATIONS. Systems Integrator will not export,
re-export, transfer, or make available, whether directly or indirectly,
any regulated item or information to anyone outside the U.S. in connection
with this Agreement without first complying with all export control laws
and regulations which may be imposed by the U.S. Government and any country
or organization of nations within whose jurisdiction Systems Integrator
operates or does business.
11.5 NON-SOLICITATION. During the period beginning on the date hereof and
ending on the first anniversary of the termination or expiration of this
Agreement in accordance with its terms, each party agrees that it will not, and
will ensure that its affiliates do not, directly or indirectly, solicit or
attempt to solicit for employment any persons employed by the other party during
such period.
11.6 GOVERNING LAW; SEVERABILITY; WAIVER. This Agreement is made under and
will be governed by and construed in accordance with the laws of the State of
California (without regard to that body of law controlling conflicts of law) and
specifically excluding from application to this Agreement that law known as the
United Nations Convention on the International Sale of Goods. In the event any
provision of this Agreement is held by a tribunal of competent jurisdiction to
be contrary to the law, the remaining provisions of this Agreement will remain
in full force and effect. The waiver of any breach or default of this Agreement
will not constitute a waiver of any subsequent breach or default, and will not
act to amend or negate the rights of the waiving party.
11.7 ASSIGNMENT; NOTICES. Systems Integrator may not assign its rights or
delegate its duties under this Agreement either in whole or in part without the
prior written consent of Netgateway, except that Systems Integrator may assign
this Agreement in whole as part of a corporate reorganization, consolidation,
merger, or sale of substantially all of its assets. Any attempted assignment or
delegation without such consent will be void. Netgateway may assign this
Agreement in whole or part. This Agreement will bind and inure to the benefit of
each party's successors and permitted assigns. Any notice or communication
required or permitted to be given hereunder may be delivered by hand, deposited
with an overnight courier, sent by confirmed facsimile, or mailed by registered
or certified mail, return receipt requested, postage prepaid, in each case to
the address of the receiving party indicated on the signature page hereof, or at
such other address as may hereafter be furnished in writing by either party
hereto to the other. Such notice will be deemed to have been given as of the
date it is delivered, mailed or sent, whichever is earlier.
11.8 RELATIONSHIP OF PARTIES. Netgateway and Systems Integrator are
independent contractors and this Agreement will not establish any
relationship of partnership, joint venture, employment, franchise or
agency between Netgateway and Systems Integrator. Neither Netgateway nor
Systems Integrator will have the power to bind the other or incur
obligations on the other's behalf without the other's prior written
consent, except as otherwise expressly provided herein.
11.9 ENTIRE AGREEMENT; COUNTERPARTS. This Agreement, including all
documents incorporated herein by reference, constitutes the complete and
exclusive agreement between the parties with respect to the subject matter
hereof, and supersedes and replaces any and all prior or contemporaneous
discussions, negotiations, understandings and agreements, written and oral,
regarding such subject matter. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original, but all of which
together shall constitute one and the same instrument.
Page 11 of 16
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be
effective as of the date and year first above written.
SYSTEMS INTEGRATOR
By: /s/ K. SUBRAHMANIAM
---------------------
Name: K. Subrahmaniam
Its: Executive Vice President- Operations
Address for Notices:
Unit 13, Block 2, SDF Buildings
Madras Export Processing Zone
Chennai 600 045, India
NETGATEWAY
By: /s/ ROY W. CAMBLIN III
------------------------
Name: Roy W. Camblin III
Its: Chief Executive Officer
Address for Notices:
300 Oceangate, Suite 500
Long Beach, CA 90802
Attention: General Counsel
Page 12 of 16
<PAGE>
Exhibit "A"
NETGATEWAY
ELECTRONIC DATA CENTERCOMMERCE SERVICES AGREEMENT
THIS ELECTRONIC DATA CENTERCOMMERCE SERVICES AGREEMENT (this
"AGREEMENT") is made effective as of the Acceptance Date set forth in the
initial eCommerce Services Order Form ( , 2000) accepted by
Netgateway, a Nevada corporation ("NETGATEWAY"), and the subscriber
identified below ("SUBSCRIBER").
PARTIES:
SUBSCRIBER NAME: ______________________________
ADDRESS: ______________________________
______________________________
PHONE: ______________________________
FAX: ______________________________
NETGATEWAY, INC.
300 Oceangate, Suite 500
Long Beach, CA 90802
Phone: (562) 308-0010
Fax: (562) 308-0021
1. ELECTRONIC DATA CENTERCOMMERCE SERVICES.
1.1 ECOMMERCE SERVICES. Subject to the terms and conditions of this
Agreement, during the term of this Agreement, Netgateway will, through the
Netgateway Internet Commerce Center-TM- (the "NETGATEWAY ICC") provide to
Subscriber the services described in the eCommerce Services Order Form(s) (the
"ECOMMERCE SERVICES ORDER FORM(S)") accepted by Netgateway, or substantially
similar services if such substantially similar services would provide Subscriber
with substantially similar benefits (the "ECOMMERCE SERVICES"). All such
eCommerce Services Order Forms will be incorporated herein by this reference as
of the Acceptance Date set forth in each such form. Netgateway and Subscriber
have mutually agreed or will mutually agree upon the detailed final
specifications (the "SPECIFICATIONS") for the eCommerce Services and the
development timeline therefor, all of which are or will be set forth on the
attached initial eCommerce Services Order Form, marked Exhibit "A", and by this
reference made a part hereof.
1.2 AVAILABILITY. ECommerce Services will be available to Subscriber for
inquiry and order entry functions twenty-four (24) hours a day, seven (7) days a
week. Netgateway reserves the right upon reasonable notice to Subscriber to
limit or curtail holiday or weekend availability when necessary for system
upgrades, adjustments, maintenance, or other operational considerations.
1.3 ENHANCEMENTS. General enhancements to existing eCommerce Services
provided hereunder, as well as new features that Netgateway incorporates into
its standard commerce processing system, regardless of whether they are
initiated by Netgateway or developed at the request of Subscriber or other
subscribers, shall be made available to Subscriber at no additional cost. Any
new features or services that may be developed by Netgateway during the term of
this Agreement that Netgateway intends to offer to subscribers on a limited or
optional basis may, at Netgateway' option, and subject to Subscriber's'
acceptance, be made available to Subscriber at Netgateway's then-current prices
for such new features or services. Enhancements to existing eCommerce Services
requested by Subscriber that benefit only sSubscriber at the time such
enhancements are put into service shall be billed to Subscriber at Netgateway's
standard rates for programming. All enhancements to the eCommerce Services, and
any new features or services introduced by Netgateway, shall remain the
exclusive proprietary property of Netgateway.
1.4 TRAINING. At no cost to subscriberSubscriber, Netgateway shall provide
such onsite training and other assistance, as Netgateway deems necessary to
assure that Subscriber's personnel are able to make effective use of the
eCommerce Services. On-site training shall take place at such times and places
as are mutually agreeable to the parties hereto.
1.5 SUBSCRIBER DATA.
(a) SUBSCRIBER DATA. Subscriber will timely supply Netgateway, in a form
acceptable to Netgateway, with all data necessary for Netgateway to perform the
ongoing services to be provided hereunder. It is the sole responsibility of
Subscriber to insure the completeness and accuracy of such data.
(b) CONFIDENTIALITY. NETGATEWAY ACKNOWLEDGES THAT ALL RECORDS, DATA, FILES
AND OTHER INPUT MATERIAL RELATING TO SUBSCRIBER ARE CONFIDENTIAL AND SHALL TAKE
REASONABLE STEPS TO PROTECT THE CONFIDENTIALITY OF SUCH RECORDS, DATA, FILES AND
OTHER MATERIALS. NETGATEWAY WILL PROVIDE REASONABLE SECURITY SAFEGUARDS TO LIMIT
ACCESS TO SUBSCRIBER'S FILES AND RECORDS TO SUBSCRIBER AND OTHER AUTHORIZED
PARTIES.
(c) PROTECTION OF SUBSCRIBER Files. Netgateway will take reasonable steps to
protect against the loss or alteration of Subscriber's files, records and data
retained by Netgateway, but Subscriber recognizes that events beyond the control
of Netgateway may cause such loss or alteration. Netgateway will maintain backup
file(s) containing all the data, files and records related to Subscriber.
Subscriber's file(s), records and data shall, at no cost to Subscriber, be
released to Subscriber on an occurrence that renders Netgateway unable to
perform hereunder, or upon the termination of this Agreement as provided herein.
(d) OWNERSHIP OF DATA. Netgateway acknowledges that all records, data, files
and other input material relating to Subscriber and its customers are the
exclusive property of the Subscriber.
2. FEES AND BILLING.
2.1 FEES. Subscriber will pay all fees and amounts in accordance with the
eCommerce Services Order Forms.
2.2 BILLING COMMENCEMENT. Billing for eData CenterCommerce Services indicated
in the eCommerce Services Order Forms, if any, other than the initial
development fee, shall commence on the indicated in the eCommerce Services Order
Forms (the "OPERATIONAL DATE"). The initial development fee will be due and
payable upon the full execution of this Agreementin accordance with the terms of
the eCommerce Services Order Form. In the event that Subscriber orders other
eData CenterCommerce Services in addition to those listed in the initial
eCommerce Services Order Form, billing for such services shall commence on the
date Netgateway first provides such additional eData CenterCommerce Services to
Subscriber or as otherwise agreed to by Subscriber and Netgateway in the
applicable eCommerce Services Order Form.
2.3 BILLING AND PAYMENT TERMS. Netgateway shall invoice Subscriber monthly in
advance of the provision of Internet eCommerce Services, and payment of such
fees will be due within thirty (30) days of the date of each Netgateway invoice.
All payments will be made in U.S. dollars. Late payments hereunder will accrue
interest at a rate of one and one-half percent (1 1/2%) per month, or the
highest rate allowed by applicable law, whichever is lower. If, in its
reasonable judgment Netgateway determines that Subscriber is not creditworthy or
is otherwise not financially secure, Netgateway may, upon prior written notice
to Subscriber, modify the payment terms to require full payment before the
provision of eCommerce Services or other assurances to secure Subscriber's
payment obligations hereunder.
2.4 TAXES, UTILITIES AND EXCLUSIONS. All charges shall be exclusive of any
federal, state or local sales, use, excise, AD VALOREM or personal property
taxes levied, or any fines, forfeitures or penalties assessed in connection
therewith, as a result of this Agreement or the installation or use of eCommerce
Services hereunder. Any such taxes, that may be applicable will be paid by
Subscriber or by Netgateway for Subscriber's account, in which case Subscriber
shall reimburse Netgateway for amounts so paid. Netgateway shall provide
burstible at one (1) megabit per second capacity bandwith for Subscriber's
website at no additional charge. Should Subscriber need additional bandwidth,
Netgateway will provide or make arrangements to provide such additional
bandwidth and invoice Subscriber for such excess bandwidth and/or use beyond a
one (1) megabit per second burstible line. Netgateway will provide traffic
reports to Subscriber with respect to burstible capacity. Netgateway is not
responsible for providing connectivity to Subscriber's offices.
3. SUBSCRIBER'S OBLIGATIONS.
3.1 COMPLIANCE WITH LAW AND RULES AND REGULATIONS. Subscriber agrees that
Subscriber will comply at all times with all applicable laws and regulations and
Netgateway's general rules and regulations relating to its provision of eData
CenterCommerce Services, currently included herein as Section 10, which may be
updated and provided by Netgateway to Subscriber from time to time ("RULES AND
REGULATIONS"). Subscriber acknowledges that Netgateway exercises no control
whatsoever over the content contained in or passing through the Subscriber's web
site or mall ("EeCommerce Centers"), and that it is the sole responsibility of
Subscriber to ensure that the information it transmits and receives complies
with all applicable laws and regulations.
3.2 ACCESS AND SECURITY. Subscriber will be fully responsible for any
charges, costs, expenses (other than those included in the eData CenterCommerce
Services), and third party claims that may result from its use of, or access to,
the Netgateway Internet Data CenterCommerce Center(TM) or the eCommerce Centers,
including, but not limited to, any unauthorized use or any access devices
provided by Netgateway hereunder.
3.3 NO COMPETITIVE SERVICES. Subscriber may not at any time permit any
eCommerce Services to be utilized for the provision of any services that compete
with any Netgateway services, without Netgateway's prior written consent.
Page 13 of 16
<PAGE>
3.4 INSURANCE.
(a) MINIMUM LEVELS. Subscriber will keep in full force and effect during the
term of this Agreement: (i) comprehensive general liability insurance in an
amount not less than $5 million per occurrence for bodily injury and property
damage; (ii) employer's liability insurance in an amount not less than $1
million per occurrence; and (iii) workers' compensation insurance in an amount
not less than that required by applicable law. Subscriber also agrees that it
will be solely responsible for ensuring that its agents (including contractors
and subcontractors) maintain, other insurance at levels no less than those
required by applicable law and customary in Subscriber's industries.
(b) CERTIFICATES OF INSURANCE. Prior to the Operational Date, Subscriber will
furnish Netgateway with certificates of insurance which evidence the minimum
levels of insurance set forth above, and will notify Netgateway in writing in
the event that any such insurance policies are cancelled.
(c) NAMING NETGATEWAY AS AN ADDITIONAL INSURED. Subscriber agrees that prior
to the Operational Date, Subscriber will cause its insurance provider(s) to name
Netgateway as an additional insured and notify Netgateway in writing of the
effective date thereof.
4. CONFIDENTIAL INFORMATION.
4.1 CONFIDENTIAL INFORMATION. Each party acknowledges that it will have
access to certain confidential information of the other party concerning the
other party's business, plans, customers, technology, and products, including
the terms and conditions of this Agreement ("CONFIDENTIAL INFORMATION").
Confidential Information will include, but not be limited to, each party's
proprietary software and customer information. Each party agrees that it will
not use in any way, for its own account or the account of any third party,
except as expressly permitted by this Agreement, nor disclose to any third party
(except as required by law or to that party's attorneys, accountants and other
advisors as reasonably necessary), any of the other party's Confidential
Information and will take reasonable precautions to protect the confidentiality
of such information.
4.2 EXCEPTIONS. Information will not be deemed Confidential Information
hereunder if such information: (i) is known to the receiving party prior to
receipt from the disclosing party directly or indirectly from a source other
than one having an obligation of confidentiality to the disclosing party; (ii)
becomes known (independently of disclosure by the disclosing party) to the
receiving party directly or indirectly from a source other than one having an
obligation of confidentiality to the disclosing party; (iii) becomes publicly
known or otherwise ceases to be secret or confidential, except through a breach
of this Agreement by the receiving party; or (iv) is independently developed by
the receiving party.
5. REPRESENTATIONS AND WARRANTIES.
5.1 WARRANTIES BY SUBSCRIBER.
(a) SUBSCRIBER'S BUSINESS. Subscriber represents and warrants that:
(i) Subscriber's services, products, materials, data, and information
used by Subscriber in connection with this Agreement as well as Subscriber's and
its permitted customers' and users' use of the eData CenterCommerce Services
(collectively, "SUBSCRIBER'S BUSINESS") does not as of the Operational Date, and
will not during the term of this Agreement, operate in any manner that would
violate any applicable law or regulation.
(ii) Subscriber owns or has the right to use all material contained in
the Subscriber's web site, including all text, graphics, sound, video,
programming, scripts, and applets; and
(iii) The use, reproduction, distribution, and transmission of the web
site, or any information or materials contained in it does not (A) infringe or
misappropriate any copyright, patent, trademark, trade secret, or any other
proprietary rights of a third party; or (B) constitute false advertising, unfair
competition, defamation, an invasion of privacy, or violate a right of
publicity.
(b) RULES AND REGULATIONS. Subscriber has read the Rules and Regulations
(Section 10 below) and represents and warrants that Subscriber and Subscriber's
Business are currently in full compliance with the Rules and Regulations, and
will remain so at all times during the term of this Agreement.
(c) BREACH OF WARRANTIES. In the event of any breach, or reasonably
anticipated breach, of any of the foregoing warranties, in addition to any other
remedies available at law or in equity, Netgateway will have the right
immediately in Netgateway's reasonable discretion, to suspend any related eData
CenterCommerce Services if deemed reasonably necessary by Netgateway to prevent
any harm to Netgateway or its business.
5.2 WARRANTIES AND DISCLAIMERS BY NETGATEWAY.
(a) NO OTHER WARRANTY. THE EDATA CENTERCOMMERCE SERVICES ARE PROVIDED ON AN
"AS IS" BASIS, AND SUBSCRIBER'S USE OF THE EDATA CENTERCOMMERCE SERVICES IS AT
ITS OWN RISK. NETGATEWAY DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER
EXPRESS AND/OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE,
AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
NETGATEWAY DOES NOT WARRANT THAT THE EDATA CENTERCOMMERCE SERVICES WILL BE
UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.
(b) DISCLAIMER OF ACTIONS CAUSED BY AND/OR UNDER THE CONTROL OF THIRD
PARTIES. NETGATEWAY DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM
NETGATEWAY'S INTERNET DATA CENTERCOMMERCE CENTER AND OTHER PORTIONS OF THE
INTERNET. SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET
SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES. AT TIMES, ACTIONS OR INACTIONS
CAUSED BY THESE THIRD PARTIES CAN PRODUCE SITUATIONS IN WHICH NETGATEWAY'S
SUBSCRIBERS' CONNECTIONS TO THE INTERNET (OR PORTIONS THEREOF) MAY BE IMPAIRED
OR DISRUPTED. ALTHOUGH NETGATEWAY WILL USE COMMERCIALLY REASONABLE EFFORTS TO
TAKE ACTIONS IT DEEMS APPROPRIATE TO REMEDY AND AVOID SUCH EVENTS, NETGATEWAY
CANNOT GUARANTEE THAT THEY WILL NOT OCCUR. ACCORDINGLY, NETGATEWAY DISCLAIMS ANY
AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS.
LIMITATIONS OF LIABILITY.
6.1 EXCLUSIONS. IN NO EVENT WILL NETGATEWAY BE LIABLE TO ANY THIRD PARTY FOR
ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, SUBSCRIBER'S BUSINESS OR
OTHERWISE, AND ANY LOST REVENUE, LOST PROFITS, REPLACEMENT GOODS, LOSS OF
TECHNOLOGY, RIGHTS OR SERVICES, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL
DAMAGES, LOSS OF DATA, OR INTERRUPTION OR LOSS OF USE OF SERVICE OR SUBSCRIBER'S
BUSINESS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER UNDER
THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.
6.2 LIMITATIONS. NETGATEWAY, ITS AFFILIATES, EMPLOYEES, OFFICERS AND AGENTS
SHALL NOT BE LIABLE TO SUBSCRIBER OR TO ANY THIRD PARTY FOR ANY LOSS OR DAMAGE,
WHETHER DIRECT OR INDIRECT, RESULTING FROM DELAYS OR INTERRUPTIONS OF SERVICE
DUE TO MECHANICAL ELECTRICAL OR WIRE DEFECTS OR DIFFICULTIES, STORMS, STRIKES,
WALK-OUTS, EQUIPMENT OR SYSTEMS FAILURES, OR OTHER CAUSES OVER WHICH NETGATEWAY,
ITS AFFILIATES, EMPLOYEES, OFFICERS, OR AGENTS AGAINST WHOM LIABILITY IS SOUGHT,
HAVE NO REASONABLE CONTROL, OR FOR LOSS OR DAMAGE, DIRECT OR INDIRECT, RESULTING
FROM INACCURACIES, ERRONEOUS STATEMENTS, ERRORS OF FACTS, OMISSIONS, OR ERRORS
IN THE TRANSMISSION OR DELIVERY OF ECOMMERCE SERVICES, OR ANY DATA PROVIDED AS A
PART OF THE ECOMMERCE SERVICES PURSUANT TO THIS AGREEMENT, EXCEPT TO THE EXTENT
CAUSED BY THE GROSS NEGLIGENCE OR WILLFULL MISCONDUCT OF NETGATEWAY. IN
ADDITION, IN NO EVENT SHALL NETGATEWAY BE LIABLE TO SUBSCRIBER OR TO ANY THIRD
PARTY FOR SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL LOSSES OR DAMAGES
WHICH SUBSCRIBER OR SUCH THIRD PARTY MAY INCUR OR EXPERIENCE ON ACCOUNT OF
ENTERING INTO OR RELYING ON THIS AGREEMENT OR UTILIZING THE NETGATEWAY ECOMMERCE
SERVICES, REGARDLESS OF WHETHER NETGATEWAY HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES OR WHETHER SUCH DAMAGES ARE CAUSED, IN WHOLE OR IN PART, BY THE
NEGLIGENCE OF NETGATEWAY.
6.3 MAXIMUM LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS
AGREEMENT, NETGATEWAY'S MAXIMUM AGGREGATE LIABILITY TO SUBSCRIBER RELATED TO OR
IN CONNECTION WITH THIS AGREEMENT WILL BE LIMITED TO THE TOTAL AMOUNT PAID BY
SUBSCRIBER TO NETGATEWAY HEREUNDER FOR THE PERIOD CONSISTING OF THE PRIOR THREE
(3) FULL CALENDAR MONTHS.
6.4 TIME FOR MAKING CLAIMS. ANY SUIT OR ACTION BY SUBSCRIBER AGAINST
NETGATEWAY, ITS AFFILIATES, OFFICERS, DIRECTORS, AGENTS EMPLOYEES, SUCCESSORS OR
ASSIGNS, BASED UPON ANY ACT OR OMISSION ARISING OUT OF OR RELATING TO THIS
AGREEMENT, OR SERVICES PERFORMED HEREUNDER, OR ANY ALLEGED BREACH THEREOF, SHALL
BE COMMENCED WITHIN TWO (2) YEARS OF THE FIRST OCCURRENCE GIVING RISE TO SUCH
CLAIM OR BE FOREVER BARRED. THIS PROVISION DOES NOT MODIFY OR OTHERWISE AFFECT
THE LIMITATION OF NETGATEWAY'S LIABILITY SET FORTH IN SECTION 6 OR ELSEWHERE IN
THIS AGREEMENT.
6.5 SUBSCRIBER'S INSURANCE. Subscriber agrees that it will not pursue any
claims against Netgateway for any liability Netgateway may have under or
relating to this Agreement until Subscriber first makes claims against
Subscriber's insurance provider(s) and such insurance provider(s) finally
resolve(s) such claims.
6.6 BASIS OF THE BARGAIN; FAILURE OF ESSENTIAL PURPOSE. Subscriber
acknowledges that Netgateway has set its prices and entered into this Agreement
in reliance upon the limitations of liability and the disclaimers of warranties
and damages set forth herein, and that the same form an essential basis of the
bargain between the parties. The parties agree that the limitations and
exclusions of liability and disclaimers specified in this Agreement will survive
and apply even if found to have failed of their essential purpose.
Page 14 of 16
<PAGE>
7. INDEMNIFICATION.
7.1 NETGATEWAY'S INDEMNIFICATION OF SUBSCRIBER. Netgateway will indemnify,
defend and hold Subscriber harmless from and against any and all costs,
liabilities, losses, and expenses (including, but not limited to, reasonable
attorneys' fees) (collectively, "LOSSES") resulting from any claim, suit,
action, or proceeding (each, an "ACTION") brought against Subscriber alleging
the infringement of any third party registered U.S. copyright or issued U.S.
patent resulting from the provision of eData CenterCommerce Services pursuant to
this Agreement (but excluding any infringement contributorily caused by
Subscriber's Business).
7.2 SUBSCRIBER'S INDEMNIFICATION OF NETGATEWAY. Subscriber will indemnify,
defend and hold Netgateway, its affiliates and customers harmless from and
against any and all Losses resulting from or arising out of Subscriber's breach
of any provision of this Agreement or any Action brought by or against
Netgateway, its directors, employees, affiliates or Subscribers alleging with
respect to the Subscriber's Business: (a) infringement or misappropriation of
any intellectual property rights; (b) defamation, libel, slander, obscenity,
pornography, or violation of the rights of privacy or publicity; (c) spamming,
or any other offensive, harassing or illegal conduct or violation of the Rules
and Regulations; or, (d) any violation of any other applicable law or
regulation.
7.3 NOTICE. Each party will provide the other party, prompt written notice of
the existence of any such eventLoss or Action described in this Section 7 of
which it becomes aware, and an opportunity to participate in the defense
thereof.
8. DISPUTE RESOLUTION.
8.1 PROCEDURES. It is the intent of the parties that all disputes arising
under this Agreement be resolved expeditiously, amicably, and at the level
within each party's organization that is most knowledgeable about the disputed
issue. The parties understand and agree that the procedures outlined in this
Paragraph Section 8 are not intended to supplant the routine handling of
inquiries and complaints through informal contact with customer service
representatives or other designated personnel of the parties. Accordingly, for
purposes of the procedures set forth in this paragraphSection 8, "DISPUTE" means
a disagreement that the parties have been unable to resolve by the normal and
routine channels ordinarily used for such matters. Before any dispute arising
under this Agreement, other than as provided in paragraph Section 8.5 below, may
be submitted to arbitration, the parties shall first follow the informal and
escalating procedures set forth below.
(a) The complaining party's representative will notify the other party's
representative in writing of the dispute, and the non-complaining party will
exercise good faith efforts to resolve the matter as expeditiously as possible.
(b) In the event that such matter remains unresolved thirty (30) days after
the delivery of the complainant party's written notice, a senior representative
of each party shall meet or confer within ten (10) business days of a request
for such a meeting or conference by either party to resolve such matter.
(c) In the event that the meeting or conference specified in (b) above does
not resolve such matter, the senior officer of each party shall meet or confer
within ten (10) business days of the request for such a meeting or conference by
either party to discuss and agree upon a mutually satisfactory resolution of
such matter.
(d) If the parties are unable to reach a resolution of the dispute after
following the above procedure, or if either party fails to participate when
requested, the parties may proceed in accordance with paragraph Section 8.2
below.
8.2 BINDING ARBITRATION. Except as provided in paragraph Section 8.5 below,
any dispute arising under this Agreement shall, after utilizing the procedures
in paragraph Section 8.1, be resolved by final and binding arbitration in Los
Angeles, California, before a single arbitrator selected by, and in accordance
with the rules of commercial arbitration of, the American Arbitration
Association or as otherwise provided in Paragraph Section 11.6. Each party shall
bear its own costs in the arbitration, including attorneys' fees, and each party
shall bear one-half of the cost of the arbitrator.
8.3 ARBITRATOR'S AUTHORITY. The arbitrator shall have the authority to award
such damages as are not prohibited by this Agreement and may, in addition and in
a proper case, declare rights and order specific performance, but only in
accordance with the terms of this Agreement.
8.4 ENFORCEMENT OF ARBITRATOR'S AWARD. Any Party may apply to a court of
general jurisdiction to enforce a arbitrator's award, and if enforcement is
ordered, the party against which the order is issued shall pay the costs and
expenses of the other party in obtaining such order, including responsible
attorneys' fees.
8.5 ACCESS TO COURTS. Notwithstanding the provisions of paragraphs Sections
8.1 and 8.2 above, any action by Netgateway to enforce its rights under
Paragraphs Section 10.3 of this Agreement or to enjoin any infringement of the
same by Subscriber may, at Netgateway election, be commenced in the state of
federal courts of Los Angeles, California, and Subscriber consents to personal
jurisdiction and venue in such courts for such actions.
9. TERM AND TERMINATION.
9.1 TERM. This Agreement will be effective on the Acceptance Date and will
terminate three (3) years ("INITIAL TERM") after such date, unless earlier
terminated according to the provisions of this Section 9. This Agreement will
automatically renew for an additional term of three (3) years unless a party
hereto elects not to so renew and notifies the other party in writing of such
election by a date, which is six (6) months prior to the lapse of the Initial
Term.
9.2 TERMINATION. Either party will have the right to terminate this Agreement
if: (i) the other party breaches any material term or condition of this
Agreement and fails to cure such breach within thirty (30) days after receipt of
written notice of the same, except in the case of failure to pay fees, which
must be cured within five (5) days after receipt of written notice from
Netgateway; (ii) the other party becomes the subject of a voluntary petition in
bankruptcy or any voluntary proceeding relating to insolvency, receivership,
liquidation, or composition for the benefit of creditors; or (iii) the other
party becomes the subject of an involuntary petition in bankruptcy or any
involuntary proceeding relating to insolvency, receivership, liquidation, or
composition for the benefit of creditors, if such petition or proceeding is not
dismissed within sixty (60) days of filing.
9.3 NO LIABILITY FOR TERMINATION. Neither party will be liable to the other
for any termination or expiration of this Agreement in accordance with its
terms.
9.4 EFFECT OF TERMINATION. Upon the effective date of expiration or
termination of this Agreement: (a) Netgateway will immediately cease providing
the eData CenterCommerce Services; (b) any and all payment obligations of
Subscriber under this Agreement will become due immediately; and (c) within
thirty (30) days after such expiration or termination, each party will return
all Confidential Information of the other party in its possession at the time of
expiration or termination and will not make or retain any copies of such
Confidential Information except as required to comply with any applicable legal
or accounting record keeping requirement.
9.5 SURVIVAL. The following provisions will survive any expiration or
termination of the Agreement: Sections 2, 3, 4, 5, 6, 7, 8, 9 and , 10, 11.3,
11.4, 11.5 and 11.6.
10. USE OF ECOMMERCE SERVICES - RULES AND REGULATIONS.
10.1 PROPRIETARY SYSTEMS. Subscriber acknowledges that the software systems
utilized by Netgateway in the provision of eCommerce Services hereunder,
including all enhancements thereto, and all screens and formats used in
connection therewith are the exclusive proprietary property of Netgateway, and
Subscriber shall not publish, disclose, display, provide access to or otherwise
make available any Netgateway eCommerce software or products thereof, or any
screens, formats, reports or printouts used, provided, produced or supplied from
or in connection therewith, to any person or entity other than an employee of
Subscriber without the prior written consent of, and on terms acceptable to
Netgateway, which consent shall not be unreasonably withheld; provided, however,
that Subscriber may disclose to a governmental or regulatory agency or to
customers of Subscriber any information expressly prepared and acknowledge in
writing by Netgateway as having been prepared for disclosure to such
governmental or regulatory agency or to such customers. Neither party shall
disclose Subscriber's use of eCommerce Services in any advertising or
promotional materials without the prior written consent to such use, and
approval of such materials, by the other.
10.2 USE OF SERVICES PERSONAL TO SUBSCRIBER. Subscriber agrees that it will
use the services provided hereunder only in connection with its eCommerce
business, and it will not, without the express written permission of Netgateway,
sell, lease, or otherwise provide or make available eCommerce Services to any
third party.
10.3 SURVIVAL OF OBLIGATIONS. The obligations of this paragraph Section 10
shall survive termination of this Agreement. Subscriber understands that the
unauthorized publication or disclosure of any of Netgateway' software or copies
thereof, or the unauthorized use of eCommerce Services would cause irreparable
harm to Netgateway for which there is no adequate remedy at law. Subscriber
therefore agrees that in the event of such unauthorized disclosure or use,
Netgateway may, at its discretion and at Subscriber's expense, terminate this
Agreement, obtain immediate injunctive relief in a court of competent
jurisdiction, or take such other steps as it deems necessary to protect its
rights. If Netgateway, in its reasonable, good faith judgement, determines that
there is a material risk of such unauthorized disclosure or use, it may demand
immediate assurances, satisfactory to Netgateway, that there will be no such
unauthorized disclosure or use. In the absence of such assurance, Netgateway may
immediately terminate this Agreement and take such other steps as it deems
necessary. The rights of Netgateway hereunder are in addition to any other
remedies provided by law or in equity.
11. MISCELLANEOUS PROVISIONS.
11.1 FORCE MAJEURE. Except for the obligation to pay money, neither party
will be liable for any failure or delay in its performance under this Agreement
due to any cause beyond its reasonable control, including act of war, acts of
God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute,
governmental act or failure of the Internet, provided that the delayed party:
(a) gives the other party prompt notice of such cause, and (b) uses its
reasonable commercial efforts to correct promptly such failure or delay in
performance.
11.2 NO LEASE. This Agreement is a services agreement and is not intended to
and will not constitute a lease of any real or personal property. Subscriber
acknowledges and agrees that (i) it has been granted only a license to use the
Netgateway ICC and any equipment provided by Netgateway in accordance with this
Agreement, (ii) Subscriber
Page 15 of 16
<PAGE>
has not been granted any real property interest in the Netgateway ICC, and (iii)
Subscriber has no rights as a tenant or otherwise under any real property or
landlord/tenant laws, regulations, or ordinances.
11.3 MARKETING; PROMOTIONAL MATERIALS; PRESS RELEASES.
(a) Subscriber shall not disclose Subscriber's use of eCommerce Services in
any advertising or promotional materials or any public disclosure without the
prior written consent to such use, and approval of such disclosure, by
Netgateway. Subscriber agrees that Netgateway and its affiliates may refer to
Subscriber by any of Subscriber's trade names, and trademarks and other
identifiable marks, and may briefly describe Subscriber's Business and the
nature of any services provided by Netgateway to Subscriber, in Netgateway's and
its affiliates' marketing materials, press releases and web sites.
(b) Netgateway (or its parent company, Netgateway, Inc.) shall have the right
to inform its customers and the public via press release that Netgateway has
entered into this Agreement or any eCommerce Services Order Form, as applicable,
with Subscriber; provided, however, that any such press release or public
statement shall not be issued without the prior written approval of Subscriber,
which approval shall not be unreasonably withheld; and provided, further, that
Subscriber shall notify Netgateway of its decision to approve, or not approve,
such a release or statement within three (3) business days after receiving a
request for approval from Netgateway or will thereafter have automatically been
deemed to have approved such release or statement by virtue of having not
informed Netgateway of Subscriber's decision within such period. The provisions
of this Section 11.3(b) shall apply only to announcements and press releases
relating to Netgateway and Subscriber entering into this Agreement and any
eCommerce Services Order Forms, and shall not apply to other announcements or
press releases of a more general nature which may include references to
Subscriber, Subscriber's Business or the nature of any services provided by
Netgateway to Subscriber, as permitted by Section 11.3(a) hereof.
(c) Subscriber hereby grants Netgateway and its affiliates a license to use
any Subscriber trade names and , trademarks and other identifiable marks solely
in connection with the rights granted to Netgateway and its affiliates pursuant
to this Section 11.3. The provisions of this Section 11.3 shall apply separately
to this Agreement and each eCommerce Services Order Form entered into between
Netgateway and Subscriber.
11.4 GOVERNMENT REGULATIONS. Subscriber will not export, re-export, transfer,
or make available, whether directly or indirectly, any regulated item or
information to anyone outside the U.S. in connection with this Agreement without
first complying with all export control laws and regulations which may be
imposed by the U.S. Government and any country or organization of nations within
whose jurisdiction Subscriber operates or does business.
11.5 NON-SOLICITATION. During the period beginning on the Operational Datea
and ending on the first anniversary of the termination or expiration of this
Agreement (including any extensions hereof) in accordance with its terms,
Subscriber agrees that it will not, and will ensure that its affiliates do not,
directly or indirectly, solicit or attempt to solicit for employment any persons
employed by Netgateway or its affiliates during such period.
11.6 GOVERNING LAW; SEVERABILITY; WAIVER. This Agreement is made under and
will be governed by and construed in accordance with the laws of the State of
California (without regard to that body of law controlling conflicts of law) and
specifically excluding from application to this Agreement that law known as the
United Nations Convention on the International Sale of Goods. In the event any
provision of this Agreement is held by a tribunal of competent jurisdiction to
be contrary to the law, the remaining provisions of this Agreement will remain
in full force and effect. The waiver of any breach or default of this Agreement
will not constitute a waiver of any subsequent breach or default, and will not
act to amend or negate the rights of the waiving party.
11.7 ASSIGNMENT; NOTICES. Subscriber may not assign its rights or delegate
its duties under this Agreement either in whole or in part without the prior
written consent of Netgateway, except that Subscriber may assign this Agreement
in whole as part of a corporate reorganization, consolidation, merger, or sale
of substantially all of its assets. Any attempted assignment or delegation
without such consent will be void. Netgateway may assign this Agreement in whole
or part. This Agreement will bind and inure to the benefit of each party's
successors and permitted assigns. Any notice or communication required or
permitted to be given hereunder shall be in writing to the applicable address or
facsimile number provided on the first page of this Agreement or to such other
address or facsimile number as may hereafter be furnished in writing by either
party hereto to the other, and shall be deemed duly delivered: (i) upon
delivery, if delivered by hand, deposited with or by an overnight courier; (ii)
upon confirmation of a facsimile transmission or (iii) , sent by confirmed
facsimile,three (3) business days after or mailed by registered or certified
U.S. mail, return receipt requested, postage prepaid., in each case to the
address of the receiving party indicated on the signature page hereof, or at
such other address as may hereafter be furnished in writing by either party
hereto to the other. Such notice will be deemed to have been given as of the
date it is delivered, mailed or sent, whichever is earlier.
11.8 RELATIONSHIP OF PARTIES. Netgateway and Subscriber are independent
contractors and this Agreement will not establish any relationship of
partnership, joint venture, employment, franchise or agency between Netgateway
and Subscriber. Neither Netgateway nor Subscriber will have the power to bind
the other or incur obligations on the other's behalf without the other's prior
written consent, except as otherwise expressly provided herein.
11.9 ENTIRE AGREEMENT; COUNTERPARTS. This Agreement, including all documents
incorporated herein by reference, constitutes the complete and exclusive
agreement between the parties with respect to the subject matter hereof, and
supersedes and replaces any and all prior or contemporaneous discussions,
negotiations, understandings and agreements, written and oral, regarding such
subject matter. This Agreement may be executed in two or more counterparts, each
of which will be deemed an original, but all of which together shall constitute
one and the same instrument.
Subscriber's and Netgateway's authorized representatives have read the
foregoing and all documents incorporated therein and agree and accept such
terms effective as of the date first above written.
SUBSCRIBER
Signature: ________________________ Signature: ________________________
Print Name: ________________________ Print Name: ________________________
Title: ________________________
NETGATEWAY
Signature: ________________________ Signature: ________________________
Print Name: ________________________ Print Name: ________________________
Title: ________________________
Page 16 of 16
<PAGE>
EXHIBIT "A"
NETGATEWAY
ECOMMERCE SERVICES ORDER FORM
Subscriber Name:
Form Date:
FORM NO.: 001
GENERAL INFORMATION:
1. By submitting this eCommerce Services Order Form ("FORM") to
Netgateway, Subscriber hereby places an order for the eCommerce
Services described herein pursuant to the terms and conditions of this
Form and the Electronic Commerce Services Agreement between Subscriber
and Netgateway (the "ECS AGREEMENT"). It is expressly acknowledged by
the parties hereto that the terms and conditions of the ECS Agreement
specifically apply to this Form.
2. Netgateway will provide the eCommerce Services pursuant to the
terms and conditions of the ECS Agreement, which incorporates this
Form. The terms of this Form supersede, and by accepting this
Form, Netgateway hereby rejects, any conflicting or additional
terms provided by Subscriber in connection with Netgateway's
provision of the eCommerce Services. If there is a conflict
between this Form and any other Form provided by Subscriber and
accepted by Netgateway, the Form with the latest date will control.
3. Netgateway will not be bound by or required to provide eCommerce
Services pursuant to this Form or the ECS Agreement until each is
signed by an authorized representative of Netgateway.
TERMS AND CONDITIONS:
1. PROJECT SPECIFICATIONS. A Statement of Work setting forth
project specifications and a description of the eCommerce
Services to be provided (the "Statement of Work") is attached
hereto as Schedule 1 and incorporated herein by this reference.
The Statement of Work may be supplemented by written functional
specifications, which specifications shall be executed by Subscriber
and Netgateway in writing and attached to the Statement of Work,
and shall become a part of this Form as if fully set forth herein.
In the event of a discrepancy or inconsistency between the Statement
of Work and any such functional specifications, the most recently
executed functional specifications shall control.
2. DEVELOPMENT TIMELINE. Development of the eCommerce Services shall be
completed in accordance with the terms of the Statement of Work.
3. DEVELOPMENT FEES; ADDITIONAL FEES. The development fees for the
eCommerce Services shall be as set forth on the Statement of Work, and
shall be payable in accordance with the terms set forth thereon.
Additional fees, including without limitation, monthly hosting fees,
content update fees and enhancement fees, shall be as set forth on the
Statement of Work, and shall be paid in accordance with Netgateway's
customary trade credit terms.
Page 1
<PAGE>
SUBSCRIBER HAS READ, UNDERSTANDS AND HEREBY SUBMITS THIS ECOMMERCE
SERVICES ORDER FORM.
Submitted By: ________________________ Operational Date: __________________
(Authorized Signature)
Print Name: _________________________
Title: ______________________________
NETGATEWAY ACCEPTANCE
---------------------
_____________________________________ Acceptance Date: __________________
(AUTHORIZED SIGNATURE)
Page 2