Electronic Commerce Services Agreement - Netgateway and Leading Technologies Inc. d/b/a Mall of Minority American.com Inc.
NETGATEWAY
ELECTRONIC COMMERCE SERVICES AGREEMENT
THIS ELECTRONIC COMMERCE SERVICES AGREEMENT (this "Agreement") is made
effective as of the Acceptance Date set forth in the initial eCommerce Services
Order Form (December 1, 1999) accepted by Netgateway, a Nevada corporation
("Netgateway"), and the subscriber identified below ("Subscriber").
PARTIES:
SUBSCRIBER NAME: LEADING TECHNOLOGIES, INC. D/B/A MALL OF MINORITY
AMERICAN.COM, INC.
ADDRESS: 5150 EAST PACIFIC COAST HIGHWAY
LONG BEACH, CA 90804
TELEPHONE: (562) 961-8826
FACSIMILE: (562) 961-8727
NETGATEWAY
300 Oceangate, Suite 500
Long Beach, CA 90802
Phone: (562) 308-0010
Fax: (562) 308-0021
1. ELECTRONIC COMMERCE 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) ("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 Subscribers'
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 subscriber 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 Subscriber, 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, which data, files and records shall be backed up on a daily basis.
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.
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(d) Ownership of Data. Netgateway acknowledge 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 eCommerce Services indicated in the
eCommerce Services Order Forms (including the eCommerce Rate, Fee Per Hit,
Banner Advertising and Click Through Revenue), other than the Initial
Development Fee, shall commence on the "Operational Date" indicated in the
eCommerce Services Order Forms. The Initial Development Fee will be due and
payable in accordance with the terms of the eCommerce Services Order Form. In
the event that Subscriber orders other eCommerce 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 eCommerce
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 Commerce 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 which 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 1 megabit per second capacity bandwidth 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 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
eCommerce 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 ("eCommerce 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 eCommerce Services),
and third party claims that may result from its use of, or access to, the
Netgateway Internet Commerce 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.
3.4 Insurance.
(a) Minimum Levels. Not later than six (6) months after the Acceptance
Date set forth on the eCommerce Services Order Form, Subscriber shall put in
place and shall keep in full force and effect during the remaining term of this
Agreement: (i) comprehensive general liability insurance in an amount not less
than $1 million for the first twelve months of this Agreement and $3 million for
the remaining term of this Agreement per occurrence for bodily injury and
property damage; and (ii) 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.
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(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 eCommerce 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
eCommerce 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 eCOMMERCE SERVICES ARE PROVIDED ON AN "AS IS"
BASIS, AND SUBSCRIBER'S USE OF THE eCOMMERCE 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 eCOMMERCE 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 COMMERCE 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.
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6. 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 OF 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 WILLFUL 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
[redacted] FULL CALENDAR [redacted].
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 [redacted] 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.
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 trademark or
issued U.S. patent resulting from the provision of eCommerce 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 as Subscriber's breach
of any provision of this Agreement or any Action brought 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 event of which it becomes aware, and an opportunity to
participate in the defense thereof.
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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
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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 attorney's 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 Paragraphs 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 date first above written
and will terminate three (3) years ("Initial Term") from the date hereof, 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 with sixty (60) days of filing.
[redacted]
9.4 Effects of Termination. Upon the effective date of expiration or
termination of this Agreement: (a) Netgateway will immediately cease providing
the eCommerce 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.
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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.
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 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 10 shall
service 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 Service 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, Negateway 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,
govermental 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
Netgateway's ICC and any equipment provided by Netgateway in accordance with
this Agreement, (ii) Subscriber has not been granted any real property interest
in the Netgateway's 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. Subscriber agrees that Netgateway may refer to Subscriber by
trade name and trademark, and may briefly describe Subscriber's Business, in
Netgateway's marketing materials and web site. Subscriber hereby grants
Netgateway a license to use any Subscriber trade names and trademarks solely in
connection with the rights granted to Netgateway pursuant to this Section 11.3.
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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 Data
and ending on the first anniversary of the termination or expiration of this
Agreement 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 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 Sales 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 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.
<PAGE>
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 find
the other or issue obligations on the others' behalf without the other's prior
written consent, except as otherwise previously provided herein.
11.9 Entire Agreement; Counterparts. This Agreement, including all documents
incorporated herein by reference, constitute the complete and exclusive
agreement between the parties with respect to the subject matter hereof, and
supercedes and replaces any and all prior or contemporaneous discussions,
negotiations, understandings and agreements, written and oral, regarding such
subject matter. This Agreement may be excuted in two or more counterparts, terms
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 forms effective
as of the date first above written.
SUBSCRIBER
Signature: /s/ Anna T. Brannon
-------------------------------------------
Print Name: Anna T. Brannon
-------------------------------------------
Title: CEO
-------------------------------------------
NETGATEWAY
Signature: /s/ Donald M. Corliss, Jr.
-------------------------------------------
Print Name: Donald M. Corliss, Jr.
-------------------------------------------
Title: President
-------------------------------------------
Signature: ____________________________________________
Print Name: ____________________________________________
Signature: ____________________________________________
Print Name: ____________________________________________
<PAGE>
EXHIBIT "A"
eCOMMERCE SERVICES ORDER FORM
<PAGE>
NETGATEWAY
ECOMMERCE SERVICES ORDER FORM
Subscriber Name: Leading Technologies, Inc. d/b/a Mall of Minority America.com,
Inc.
Form Date: December 1, 1999
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 the Electronic Commerce Services
Agreement between Subscriber and Netgateway (the "ECS Agreement").
2. Billing, with the exception of Development Fees, will commence on the
Operational Date set forth below or the date that Subscriber first begins to
process transactions through the Netgateway Internet Commerce Center,
whichever occurs first.
3. 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.
4. 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.
SUBSCRIBER HAS READ, UNDERSTANDS AND HEREBY SUBMITS THIS ORDER.
Submitted By: /s/ Anna Brannon Operational Date: 12/3/99
---------------------- ------------------------
(Authorized Signature)
Print Name: Anna Brannon
----------------------
Title: CEO
----------------------
Netgateway Acceptance
/s/ Donald M. Corliss Date: 12/4/99
------------------------------------ ------------------------------------
(Authorized Signature)
<PAGE>
NETGATEWAY
ECOMMERCE SERVICES ORDER FORM
Subscriber Name: Leading Technologies, Inc. d/b/a Mall of Minority America.com,
Inc.
Form Date: December 1, 1999
Form No.: 001
Terms:
1. Project Specifications. A Phase II Statement of Work and Project
Specifications for the eCommerce Services is annexed hereto as Schedule 1 and
incorporated herein by this reference.
2. Development Timeline. Development of the eCommerce Services shall be
completed on or before [redacted].
3. Development Fees. The development fees for the eCommerce Services shall be as
set forth on the Phase II Statement of Work and Project Specifications
annexed hereto as Schedule 1, and shall be payable in accordance with the
terms set forth thereon.
4. Additional Fees. Additional fees, including without limitation, transaction
fees, monthly mall administration fees, hosting fees and monthly merchant
fees shall be as set forth on Schedule 1 hereto, and shall be paid in
accordance with terms mutually agreed upon by the parties.
5. Publicity. Neither party shall make any public announcement of this Agreement
or of the relationship they have entered into without the prior written
consent of the other.
<PAGE>
Deliverables -- Project Management
Statement of Work
--------------------------------------------------------------------------------
Phase II - Statement of Work Mall of Minority America
As part of this Statement of Work, Netgateway shall provide the following
deliverables:
Site Map:
[GRAPHIC OMITTED]
Home Page:
o Page will have general information and links available to the public
o Links to:
* MOMA Corporate Web Site
* WMBE/MBE Referral Services - Links to other services
* Travel (external provider)
* Legislative Updates - administered through the administration
component of site
* News - (external provider of information)
* Information on becoming a MOMA member (buyers and sellers)
* Training & Seminars Available - administered through admin component
* About the Mall
o General Links/Navigation will be at the top of the page (below MOMA logo)
displayed as buttons
* Buttons will be consistent throughout the entire site
o Login to secured part of the site
-1-
<PAGE>
Deliverables -- Project Management
Statement of Work
--------------------------------------------------------------------------------
* Must be a MOMA member to enter this area
* Membership is approved by MOMA (off line)
* Email sent to Member once membership is approved
o Rotating Advertisement Banners
* Ability to track click throughs on banners as revenue generating
component
* Rotation of ad banners
* Ability to place priority/precedence of banners
Becoming a Member:
o Access to a demonstration store
o Information on how to become a member
o Request membership - Sellers form & buyers form (2 types of forms)
o Form will be mailed to MOMA address for review and approval
o Seller Membership form must have ability to upload image of
certification document
o Buyers Membership form
o Upon approval of application, email sent to new member with account
information (manual process - managed through admin component)
o Member will be billed based on the package selected
o Payments will be processed automatically through the admin component
o Duration based on package selected
o Payment methods - Visa, MasterCard, American Express, Purchase Order
o To use purchase order, member must fill out a credit application
& be approved by MOMA
o Free trial membership - for a given period of time
* Default trial period for entire site
* Ability to change trial period for each membership account
o On Line Credit Application - for approval by MOMA
Member Login: (Secured Access Site):
o Once membership has been approved, members can log into the mall to get to
membership services area
Search/Advanced Search:
o Ability to search merchant stores and products using:
o SIC codes
o Categories (defined by mall administrator - store owners use categories
for products/store)
o Type of ownership
o Keyword - search for stores/products
o Display search results
o Sorted in Alpha order
o Store name - link to store home page
o Product name (if applicable) - link to product detail page in store
o Type of ownership certification
o SIC codes associated to store/merchant
-2-
<PAGE>
Deliverables -- Project Management
Statement of Work
--------------------------------------------------------------------------------
Personalization of Mall:
o Integration of a 3rd party package to manage personalization (Trivida)
o Need to define what personalization will look like
RFP/RFQ:
o List of all active/current RFP's/RFQ's
o Ability to search for RFP/RFQ by
o SIC
o Categories
o Type of ownership
o Ability to submit RFP/RFQ (buyers only)
o Ability to respond to RFP/RFQ (sellers/merchants only)
Shopping Cart/Order Pipeline:
o Shopping cart at mall level - not store specific
o Ability to purchase items across stores
o Ability to checkout using credit card, procurement card or purchase order
o Ability to complete online credit card process
o Send amount to store merchant account
o Ability to send transaction fee to MOMA merchant account - process merchants
credit for transaction fee
o Ability to track orders on-line
o Split order into multiple orders (based on merchant)
o Customer/buyer only sees one order - only needs one order number
o Ability for customer to enter billing address and separate shipping address
o Ability to enter additional shipping information
o Ability to specify shipping method
o Ability to specific if a signature is required upon delivery
Store/Merchant Directory Listing
o List of Minority Business that have store fronts within the Mall
o Sorted in alpha order
o Link to store front
Buyer Directory Listing
o List of business that have buyer memberships
o Sorted in alpha order
Mall Administration:
o Multiple levels of security/access to administration area
o Sellers administration of their individual store fronts
o Transaction reporting/billing of sellers
-3-
<PAGE>
Deliverables -- Project Management
Statement of Work
--------------------------------------------------------------------------------
o By Seller, ability to take a percent of the sales transaction at the
time the transaction occurs
o Percent can vary by seller
o View Transactions Reporting
* By Date
* By Seller Specific
* By SIC Code
* By Minority Type
o Payment Processing
o Payment methods configurable by store
o Ability to accept credit cards as payment methods
o Ability to process credit card transactions on line
o Ability to accept purchase orders
* Question for Anna - if using a purchase order to buy products, how
will MOMA get % of transaction. Do we charge Merchants credit card
immediately?
o Ability to use procurement cards - need more information on how to
handle procurement cards
o Ability to charge merchant for transaction (% that MOMA will take from
the transaction) at the time the transaction occurs
o Membership Management
o Ability to manually approve membership applications
o Ability to manually activate and deactivate members
o Ability to manage membership addresses
o Ability to allow specific buyers to use purchase orders or procurement
cards - once they have been approved by MOMA administrator
o All merchants/store owners must have merchant accounts and place a
credit card on file for transactions
o Order management
* Ability to process orders on line
* Ability to change status of order
* Ability to enter shipping methods, tracking numbers, etc.
o Management of stores
o Ability for a merchant to manage store by adding, deleting products,
managing product pricing, etc....
o Ability for MOMA administrator to activate/deactivate a store - only
MOMA administrator can activate stores
o Ability to have multiple SIC codes associated to store/merchant
o Ability to have multiple categories associated to store/merchant
o Ability to have categories associated to the products
o Ad Banner Management
o Ability to add and delete advertisements
o Ability to prioritize ad banners
-4-
<PAGE>
Deliverables -- Project Management
Statement of Work
--------------------------------------------------------------------------------
o Ability to schedule an ad banner campaign - start and stop dates
associated to activation of banner
o Make ad banners a hot link to another site
o Ability to track and report on click throughs for all banners
o Integrate a 3rd party ad banner management package (like 24x7)
o Manage Mall Categories - ability to add, delete, activate and deactivate
categories for products and stores within the mall
o Content Management
o Assign Page to left navigation on Mall home
o Indexing feature for link on left navigation
o Add content specific to page
o Add links to page
o Add Images to Page
o Manage the following pages:
* WMBE/MBE Resources
* Legislative Updates
* Member News
* Training & Services
* Free Email - link to external provider of email services. Provider
TBD
* News - link to external provider of news services. Provider TBD
* Travel - link to external provider of travel services. Provider
TBD
* About the Mall text on the Home page
* Other
Auction Capability:
o Customer/Seller/Buyer Auction
o Ability for customers (sellers and buyers) to place products up for
auction
o Ability to define minimum bid for auction items
o Ability to define the duration for auction item(s)
o Ability to enter one product and have the quantity of items be one or
many (unlimited number)
o Ability to define the payment methods accepted for auction item -
defined by customer placing item up for auction
o Ability to use iEscrow as intermediary for auction item purchased
o Ability to capture information about the customer placing the bid
o Ability for customers to bid on products place up for auction
o Ability to accept highest bid for product. If there is more than one
available, accept the highest bids based on the number of available
items
o Ability to attach image/picture of auction item
o Web Administration of Auctions
o Ability to have sellers place products up for auction within their
store administration
o Ability to view bidding history
o Email notification to highest bidders and owner of auction product at
the end of the auction
o Ability to manage auction products through the web administration site
* Activate and deactivate auction products
* Edit auction products
-5-
<PAGE>
Deliverables -- Project Management
Statement of Work
--------------------------------------------------------------------------------
COSTS:
The following development costs and other related costs shall be payable to
Netgateway. Development costs shall be due and payable as follows:
[redacted]
Project Development Costs Payable to Netgateway:
--------------------------------------------------------------------------------
Item Cost
--------------------------------------------------------------------------------
Advanced Search Element - SIC codes, categories, type of
organization
----------------------------------------------------------
Auto Generate Membership
----------------------------------------------------------
Scheduler for 30 day free trial
----------------------------------------------------------
Auto Generate Billing
----------------------------------------------------------
Configurable Membership Packages
----------------------------------------------------------
Additional Payment methods - procurement cards &
purchase orders
----------------------------------------------------------
Mall Administration (including content management)
----------------------------------------------------------
Transaction Fee Splitting
----------------------------------------------------------
Mall Development Cost [redacted]
--------------------------------------------------------------------------------
Auction Development Cost [redacted]
--------------------------------------------------------------------------------
Total Development Cost [redacted]
--------------------------------------------------------------------------------
[redacted] [redacted]
--------------------------------------------------------------------------------
Phase II Development Cost [redacted]
--------------------------------------------------------------------------------
Additional Development Costs Payable to Netgateway (excluded from estimate
above): All such amounts shall be agreed to by the parties in writing prior to
the commencement of any such development work by Netgateway:
--------------------------------------------------------------------------------
Item Cost
--------------------------------------------------------------------------------
License Fee for email Services
o Transaction fee (if applicable) [redacted]
--------------------------------------------------------------------------------
License Fee for Personalization Software
o Transaction fee (if applicable) [redacted]
--------------------------------------------------------------------------------
License Fee (transaction fee) for other external services
listed above
o Travel Services
o News Services
o Yellow/White Pages [redacted]
--------------------------------------------------------------------------------
License Fee for Subscription to SIC and NAICS code
databases [redacted]
--------------------------------------------------------------------------------
-6-
<PAGE>
Deliverables -- Project Management
Statement of Work
--------------------------------------------------------------------------------
Other Costs Payable to Netgateway;
--------------------------------------------------------------------------------
Item Cost
--------------------------------------------------------------------------------
Store Building (one time cost per Seller/Store) [redacted]
--------------------------------------------------------------------------------
Monthly Mall Administration Fee - for
administrating ecommerce site (services to be
defined) [redacted]
--------------------------------------------------------------------------------
Minimum Mall Transaction Fee (Hosting Fee) [redacted]
--------------------------------------------------------------------------------
Transaction Fees [redacted] of Mall of Minority
America [redacted] from
Sales Transactions
--------------------------------------------------------------------------------
Ad Banner Fees [redacted] ad banner fees now.
To be renegotiated at a later
date if needed
--------------------------------------------------------------------------------
Membership Fees [redacted] of Mall of Minority
America [redacted] from
Membership Fees for Sellers
brought in through Call Center
--------------------------------------------------------------------------------
Featured Sellers/Buyers [redacted] of Mall of Minority
America [redacted] from
Featured Spots Sold
--------------------------------------------------------------------------------
-7-