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CROSS PROMOTIONAL AGREEMENT
CROSS PROMOTIONAL AGREEMENT, dated as of January 31, 2000 (this
"Agreement"), between ▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc., a Delaware corporation (the
"Company"), and ▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ llc, a Delaware limited liability company
("▇▇.▇▇▇").
W I T N E S S E T H:
WHEREAS, the Company has a web site currently located at the URL,
▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, on the World Wide Web (such web site, and any
successor web site thereto, the "Company Site"), and ▇▇.▇▇▇ has a web site
located at the URL ▇▇▇▇://▇▇▇.▇▇.▇▇▇, on the World Wide Web (such web site, and
any successor web site thereto, the "▇▇.▇▇▇ Site") (the Company Site and the
▇▇.▇▇▇ Site, each individually a "Site"); and
WHEREAS, the parties hereto desire to engage in a strategic relationship
pursuant to which each party will promote the other party and the other party's
web site through both online and offline promotional efforts all on the terms
and conditions set forth herein.
NOW, THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby agree as
follows:
1. Exclusivity.
a. During the Term (as hereinafter defined), the Company shall not
permit any ▇▇.▇▇▇ Competitor (as hereinafter defined) to sell books or music
online in any area of the Company Site. In furtherance and not in limitation of
the foregoing, the Company shall not display anywhere on the Company Site links
to any web site of a ▇▇.▇▇▇ Competitor. The Company further agrees that, during
the Term, it will not promote any ▇▇.▇▇▇ Competitor in any emails or shipments
sent to Company Site customers (or prospective customers), or through any other
promotional medium described in Section 2 hereof.
b. During the Term, ▇▇.▇▇▇ shall not permit any Company Competitor
(as hereinafter defined) to sell nutritional supplements online in any area of
the ▇▇.▇▇▇ Site. In furtherance and not in limitation of the foregoing, ▇▇.▇▇▇
shall not display anywhere on the ▇▇.▇▇▇ Site links to any web site of a Company
Competitor. ▇▇.▇▇▇ further agrees that it will not promote any Company
Competitor in any emails or shipments sent to ▇▇.▇▇▇ Site customers (or
prospective customers), or through any other promotional medium described in
Section 2 hereof.
i. "▇▇.▇▇▇ Competitor" shall mean those parties listed on
Exhibit A hereto.
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ii. "Company Competitor" shall mean those parties listed on
Exhibit B hereto.
2. Delivery; Content.
a. On or before January 31, 2000, each party will deliver
to the other party, in such form as shall be mutually agreed upon by both
parties, information and materials that will permit the other party to commence
performance of such party's promotional obligations under Section 3 or Section 4
hereof, as the case may be, and on or before [*****], the parties concurrently
shall commence performance of such promotional obligations (the date on which
both parties commence performance of their promotional obligations is
hereinafter referred to as the "Launch Date").
b. The promotional materials (including a party's
trademark, tradename, logo, etc.) provided by a party hereunder shall be
referred to herein as such party's "Promotional Content."
3. Promotional Obligations of ▇▇.▇▇▇. Commencing on the Launch
Date, ▇▇.▇▇▇ agrees to promote the Company and the Company Site as follows:
a. Links to the Company Site. ▇▇.▇▇▇ will display a link
(consisting of the Company's logo) on the ▇▇.▇▇▇ Site purchase confirmation
page, which link shall access a mutually agreed upon page on the Company Site.
Such logo will appear permanently on each ▇▇.▇▇▇ Site confirmation page until
the earlier of: (i) the end of the Promotional Term (as hereinafter defined), or
(ii) the delivery by ▇▇.▇▇▇ of a minimum of [*****] impressions of such logo. If
▇▇.▇▇▇ should deliver [*****] impressions of the logo prior to the end of the
Promotional Term, the parties agrees to use their best efforts to renegotiate in
good faith the terms under which ▇▇.▇▇▇ would continue the delivery of
impressions of such logo for the remainder of the Term. The exact placement and
prominence of the Company logo shall be mutually determined by the parties
hereto. ▇▇.▇▇▇ agrees that within the promotional space of each confirmation
page that includes the Company's logo, ▇▇.▇▇▇ will promote no more than seven
(7) additional third party web sites therein, exclusive of any web sites that
are owned or operated by ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. or ▇▇.▇▇▇.
b. Email Promotions. In no less than [*****] outgoing
▇▇.▇▇▇ emails sent to ▇▇.▇▇▇ Site users, a prominently placed promotional offer
of the Company (containing a link to the Company Site) will appear; the content
of such offer to be mutually agreed upon by the parties. The offer will receive
[*****] placement. In such emails, the Company shall be the [*****] party
promoted by ▇▇.▇▇▇; no mention or logo of any other party, with the exception of
▇▇.▇▇▇, may appear in emails containing an offer by the Company. With respect to
the content of such emails, no less than [*****]% of the promotional space of
each email shall be used solely to promote the Company and the Company Site; the
remainder of such promotional space may be used by ▇▇.▇▇▇ in any
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manner it deems appropriate, provided that it is in compliance with the
preceding sentences of this clause (b). The selection of customers to whom such
emails shall be sent will be entirely within the discretion of ▇▇.▇▇▇.
c. Package Inserts. In no less than [*****] shipments sent
by ▇▇.▇▇▇ to ▇▇.▇▇▇ Site users who have purchased ▇▇.▇▇▇ Site products, ▇▇.▇▇▇
will include promotional package inserts provided by the Company. The content of
such package inserts shall be mutually agreed upon by the parties hereto. ▇▇.▇▇▇
agrees that the number of promotional package inserts of parties other than the
Company (excluding package inserts promoting ▇▇.▇▇▇) shall be limited to a
maximum of [*****] per shipment.
d. Rotational Display of Special Offer. ▇▇.▇▇▇ will rotate
displays of a promotional offer of the Company (the content of such offer to be
mutually agreed upon by the parties hereto) on the ▇▇.▇▇▇ Site home page. Such
offer shall link to a mutually agreed upon page on the ▇▇.▇▇▇ Site which
provides further details regarding such offer.
e. Co-Branded Pages/Back Button. ▇▇.▇▇▇ shall, with the
assistance of the Company, activate on the ▇▇.▇▇▇ Site one "back button" to the
Company Site, which shall be provided by the Company and will allow users of the
Company Site who connected to the ▇▇.▇▇▇ Site through a link described in
Section 4 hereof ("Company Linked Users") to return to the Company Site. Such
"back button" will appear on substantially all of the pages of the ▇▇.▇▇▇ Site
at the time such page is visited by the Company Linked User.
i. "▇▇.▇▇▇ Linked Users" shall mean users of the
▇▇.▇▇▇ Site who connect to the Company Site through a link described in this
Section 3.
f. Branding/Placement/Inclusion of Hyperlink. ▇▇.▇▇▇ will
include (i) the Company's name (the placement of which shall be in [*****]), and
(ii) a brief message (the content of which shall be [*****]) in ▇▇.▇▇▇'s
confirmation emails sent to Company Linked Users who have made purchases on the
▇▇.▇▇▇ Site. In addition, at the Company's option, ▇▇.▇▇▇ will include within
such confirmation emails a Company-branded text link which will access the
Company Site.
4. Promotional Obligations of the Company. Commencing on the Launch
Date, the Company agrees to promote ▇▇.▇▇▇ and the ▇▇.▇▇▇ Site as follows:
a. Links to the Company Site. The Company will display a
link (consisting of ▇▇.▇▇▇'s logo) on the Company Site purchase confirmation
page, which link shall access a mutually agreed upon page on the ▇▇.▇▇▇ Site.
Such logo will appear permanently on each Company Site confirmation page until
the earlier of: (i) the end of the Promotional Term (as hereinafter defined), or
(ii) the delivery by the Company of a minimum of [*****] impressions of such
logo. If the Company should deliver [*****] impressions of the logo prior to the
end of the Promotional Term, the parties agrees to use
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their best efforts to renegotiate in good faith the terms under which the
Company would continue the delivery of impressions of such logo for the
remainder of the Term. The exact placement and prominence of the ▇▇.▇▇▇ logo
shall be mutually determined by the parties hereto. The Company agrees that
within the promotional space of each confirmation page that includes ▇▇.▇▇▇'s
logo, the Company will promote no more than [*****] additional third party web
sites therein, with the exclusion of any web sites that are owned or operated by
the Company or affiliates of the Company.
b. Email Promotions. In no less than [*****] outgoing
Company emails sent to Company Site users, a prominently placed promotional
offer of ▇▇.▇▇▇ (containing a link to the ▇▇.▇▇▇ Site) will appear; the content
of such offer to be mutually agreed upon by the parties. The offer will receive
[*****] placement. In such emails, ▇▇.▇▇▇ shall be the [*****] party promoted by
the Company; no mention or logo of any other party, with the exception of the
Company, may appear in emails containing an offer by ▇▇.▇▇▇. With respect to the
content of such emails, no less than [*****]% of the promotional space of each
email shall be used solely to promote ▇▇.▇▇▇ and the ▇▇.▇▇▇ Site; the remainder
of such promotional space may be used by the Company in any manner it deems
appropriate, provided that it is in compliance with the preceding sentences of
this clause (b). The selection of customers to whom such emails shall be sent
will be entirely within the discretion of the Company.
c. Package Inserts. In no less than [*****] Company Site
shipments and no less than [*****] catalog shipments sent by the Company to its
customers who have purchased Company products, the Company will include
promotional package inserts provided by ▇▇.▇▇▇. The content of such package
inserts shall be mutually agreed upon by the parties hereto. The Company agrees
that the number of promotional package inserts of parties other than ▇▇.▇▇▇
(excluding package inserts promoting the Company) shall be limited to a maximum
of [*****] per shipment.
d. Display of Special Offer. The Company will display a
promotional offer of ▇▇.▇▇▇ (the content of such offer to be mutually agreed
upon by the parties hereto) on the Company Site home page. Such offer shall link
to a mutually agreed upon page on the Company Site which provides further
details regarding such offer. The Company will deliver a minimum of [*****]
impressions of such offer on its home page.
e. Branding/Placement/Inclusion of Hyperlink. The Company
will include (i) ▇▇.▇▇▇'s name (the placement of which shall be in the Company's
sole discretion), and (ii) a promotional offer (the content of which shall be
subject to the mutual approval of the parties) in no less than [*****] of the
Company's confirmation emails sent to Company Site users who purchase the
Company's products. In addition, at ▇▇.▇▇▇'s option, the Company will include
within such confirmation emails a bn.com-branded text link which will access the
▇▇.▇▇▇ Site.
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5. Site Responsibility. Each party will be solely responsible for
the development, operation and maintenance of its Site and, except to the extent
that such party is using Promotional Content provided by the other party, for
all materials that appear on its Site. Such responsibilities include, but are
not limited to: (a) ensuring the technical operation of its Site and all related
equipment; (b) except with respect to Promotional Content provided by the other
party, ensuring the accuracy and appropriateness of materials posted on its
Site; (c) except with respect to Promotional Content provided by the other
party, ensuring that materials posted on its Site do not violate any law, rule
or regulation, or infringe upon the rights of any third party (including, for
example, copyright, trademarks, privacy or other personal or proprietary
rights); and (d) except with respect to Promotional Content provided by the
other party, ensuring that materials posted on its Site are not libelous or
otherwise illegal. Each party disclaims all liability for all such matters with
respect to the other party's Site.
6. Licenses.
a. Subject to the terms and conditions of this Agreement,
including, but not limited to, the provisions of Section 11 hereof, ▇▇.▇▇▇
hereby grants to the Company a non-exclusive, non-transferable, limited license
to reproduce and display the ▇▇.▇▇▇ trademarks, trade names and logos provided
by ▇▇.▇▇▇ to the Company hereunder (the "▇▇.▇▇▇ Trademarks") and to use ▇▇.▇▇▇'s
Promotional Content, all as contemplated in this Agreement; provided, however,
that the Company shall not make any specific use of any ▇▇.▇▇▇ Trademarks or
▇▇.▇▇▇'s Promotional Content without first submitting a sample of such use to
▇▇.▇▇▇ and obtaining ▇▇.▇▇▇'s prior consent, which consent shall not be
unreasonably withheld. Such license shall terminate upon the effective date of
the expiration or termination of this Agreement, and the Company shall
immediately remove all ▇▇.▇▇▇ Trademarks and ▇▇.▇▇▇'s Promotional Content from
the Company Site and any other Company materials.
b. Subject to the terms and conditions of this Agreement,
including, but not limited to, the provisions of Section 11 hereof, the Company
hereby grants to ▇▇.▇▇▇ a non-exclusive, non-transferable, limited license to
reproduce and display the Company trademarks, trade names and logos provided by
the Company to ▇▇.▇▇▇ hereunder (the "Company Trademarks") and to use the
Company's Promotional Content, all as contemplated in this Agreement; provided,
however, that ▇▇.▇▇▇ shall not make any specific use of any Company Trademarks
or the Company's Promotional Content without first submitting a sample of such
use to the Company and obtaining the Company's prior consent, which consent
shall not be unreasonably withheld. Such license shall terminate upon the
effective date of the expiration or termination of this Agreement, and ▇▇.▇▇▇
shall immediately remove all Company Trademarks and the Company's Promotional
Content from the ▇▇.▇▇▇ Site and any other ▇▇.▇▇▇ materials.
7. Reporting Requirements.
a. Within ten (10) days after the end of each quarter
during the Term, each party will deliver to the other party a report setting
forth the number of impressions, promotional emails, and promotional package
inserts delivered by such party for such three month period. In addition, with
respect to links (displayed on a Site or via email) delivered by the reporting
party,
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such party, if technically feasible, will report the number of "click throughs"
of the links as well as the number of recipients of the reporting party's emails
who actually opened the emails.
b. ▇▇.▇▇▇, to the extent technically feasible, will include
in the reports described in clause (a) above, the number of Company Linked Users
who place orders on the ▇▇.▇▇▇ Site, broken down by new and returning customers.
c. The Company, to the extent technically feasible, will
include in the reports described in clause (a) above, the number of ▇▇.▇▇▇
Linked Users who place orders on the Company Site, broken down by new and
returning customers.
d. Each party is only obligated to deliver the same
categories of information that the other party is technically capable of
delivering. Both parties agree to use their best efforts to fulfill their
obligations under this Section.
8. Policies and Customer Information.
a. ▇▇.▇▇▇ considers all users who visit the ▇▇.▇▇▇ Site,
including, without limitation, Company Linked Users, to be customers of ▇▇.▇▇▇.
Accordingly, all of ▇▇.▇▇▇'s rules, policies and operating procedures concerning
customer orders, customer service and sales will apply to those customers.
▇▇.▇▇▇ may change its policies and operating procedures at any time. The parties
hereto agree that ▇▇.▇▇▇ shall have no obligation to share any customer
information collected by ▇▇.▇▇▇, including but not limited to the name, address,
e-mail address of the customer, or any titles ordered.
b. The Company considers all users who visit the Company
Site, including, without limitation, ▇▇.▇▇▇ Linked Users, to be customers of the
Company. Accordingly, all of the Company's rules, policies and operating
procedures concerning customer orders, customer service and sales will apply to
those customers. The Company may change its policies and operating procedures at
any time. The parties hereto agree that the Company shall have no obligation to
share any customer information collected by the Company.
9. Representations and Warranties.
a. The Company hereby represents and warrants to ▇▇.▇▇▇ as
follows:
i. This Agreement has been duly and validly
executed and delivered by the Company and constitutes the legal, valid and
binding obligation of the Company, enforceable against the Company in accordance
with its terms.
ii. The Company is duly incorporated, validly
existing and in good standing under the laws of the State of Delaware, and has
full corporate power and authority to execute, deliver and perform this
Agreement.
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iii. The execution, delivery and performance by the
Company of this Agreement and the consummation by it of the transactions
contemplated hereby will not, with or without the giving of notice, the lapse of
time or both, conflict with or violate (A) any provision of law, rule or
regulation to which the Company is subject, (B) any order, judgment or decree
applicable to the Company or binding upon its assets or properties, (C) any
provision of the by-laws or certificate of incorporation of the Company or (D)
any agreement or other instrument applicable to the Company or binding upon its
assets or properties.
iv. To the best of its knowledge, the Company is the
sole and exclusive owner of the Company Trademarks and the Company's Promotional
Content and/or has the right and power to license to ▇▇.▇▇▇ the Company
Trademarks and the Company's Promotional Content in the manner contemplated
herein, and such license does not and will not (A) breach, conflict with or
constitute a default under any agreement or other instrument applicable to the
Company or binding upon its assets or properties, or (B) to the best of its
knowledge, infringe upon any trademark, trade name, service ▇▇▇▇, copyright or
other proprietary right of any other person or entity.
v. To the best of its knowledge, no consent,
approval or authorization of, or exemption by, or filing with, any governmental
authority or any third party is required to be obtained or made by the Company
in connection with the execution, delivery and performance of this Agreement or
the taking by the Company of any other action contemplated hereby.
vi. There is no pending or, to the best knowledge of
the Company, threatened claim, action or proceeding against the Company, or any
affiliate thereof, with respect to the execution, delivery or consummation of
this Agreement and, to the best knowledge of the Company, there is no basis for
any such claim, action or proceeding.
b. ▇▇.▇▇▇ hereby represents and warrants to the Company as
follows:
i. This Agreement has been duly and validly
executed and delivered by ▇▇.▇▇▇ and constitutes the legal, valid and binding
obligation of ▇▇.▇▇▇, enforceable against ▇▇.▇▇▇ in accordance with its terms.
ii. ▇▇.▇▇▇ is duly organized, validly existing and
in good standing under the laws of the State of Delaware, and has full power and
authority to execute, deliver and perform this Agreement.
iii. The execution, delivery and performance by
▇▇.▇▇▇ of this Agreement and the consummation by it of the transactions
contemplated hereby will not, with or without the giving of notice, the lapse of
time or both, conflict with or violate (A) any provision of law, rule or
regulation to which ▇▇.▇▇▇ is subject, (B) any order, judgment or decree
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applicable to ▇▇.▇▇▇ or binding upon its assets or properties, (C) any provision
of the organizational documents of ▇▇.▇▇▇ or (D) any agreement or other
instrument applicable to ▇▇.▇▇▇ or binding upon its assets or properties.
iv. To the best of its knowledge, ▇▇.▇▇▇ is the sole
and exclusive owner of the ▇▇.▇▇▇ Trademarks and ▇▇.▇▇▇'s Promotional Content
and/or the right and power to license to the Company the ▇▇.▇▇▇ Trademarks and
▇▇.▇▇▇'s Promotional Content in the manner contemplated herein, and such license
does not and will not (A) breach, conflict with or constitute a default under
any agreement or other instrument applicable to ▇▇.▇▇▇ or binding upon its
assets or properties, or (B) to the best of its knowledge, infringe upon any
trademark, trade name, service ▇▇▇▇, copyright or other proprietary right of any
other person or entity.
v. To the best of its knowledge, no consent,
approval or authorization of, or exemption by, or filing with, any governmental
authority or any third party is required to be obtained or made by ▇▇.▇▇▇ in
connection with the execution, delivery and performance of this Agreement or the
taking by ▇▇.▇▇▇ of any other action contemplated hereby.
vi. There is no pending or, to the best knowledge of
▇▇.▇▇▇, threatened claim, action or proceeding against ▇▇.▇▇▇, or any affiliate
thereof, with respect to the execution, delivery or consummation of this
Agreement and, to the best knowledge of ▇▇.▇▇▇, there is no basis for any such
claim, action or proceeding.
10. Term; Termination.
a. The term of this Agreement shall commence on the date
hereof and shall continue for a period of [*****] months after the Launch Date,
unless earlier terminated as provided in clauses (b) or (c) below (the "Term");
provided, however, that the promotional obligations of the parties set forth in
Sections 3 and 4 hereof shall continue only for a period of [*****] months from
the Launch Date (the "Promotional Term"). At the end of the Promotional Term,
the parties shall use their best efforts to renegotiate in good faith each such
party's obligations under Section 3 or Section 4, as the case may be. The
parties' failure to renegotiate such provisions shall not, however, relieve the
parties of all of their other obligations hereunder for the remainder of the
Term.
b. Either party shall have the right to terminate this
Agreement by delivery of written notice of termination to the other party hereto
in the event such other party materially breaches any representation, warranty,
covenant or agreement made by it hereunder or otherwise fails to perform any of
its material obligations hereunder and such breach or failure is not cured
within ten (10) days after delivery of such notice; provided, however, that each
party shall be entitled to terminate this Agreement effective upon delivery of
notice (i) in the event of a breach by the other party of the provisions of
Sections 12 or 13 hereof or (ii) in the event that the other party becomes
insolvent in that its liabilities exceed its assets, or is adjudicated
insolvent, or
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takes advantage of or is subject to any insolvency proceeding, or makes an
assignment for the benefit of creditors or is subject to receivership,
conservatorship or liquidation.
c. If either party shall cease to exist, or if any law
prohibits online commerce such as that conducted by ▇▇.▇▇▇, this Agreement shall
automatically terminate.
d. Upon the effective date of termination or expiration of
this Agreement, (i) each party shall return to the other party any confidential
information of the other party, and shall immediately cease to use any of the
party's trademarks and Promotional Content, and (ii) the rights and obligations
of each party hereunder shall terminate; provided, however, that notwithstanding
the foregoing, the rights and obligations of the parties hereto under Section 5
and Sections 11 through 16 hereof shall survive such expiration and termination.
11. Trademarks. Each party hereby covenants and agrees that the
trademarks, trade names, service marks, copyrights and other proprietary rights
of the other party are and shall remain the sole and exclusive property of that
party and neither party shall hold itself out as having any ownership rights
with respect thereto or, except as specifically granted hereunder, any other
rights therein. In addition, except as expressly permitted hereunder, each party
hereby covenants and agrees that it will make no use of the trademarks, trade
names, service marks, copyrights and other proprietary rights of the other
party. Any and all goodwill associated with any such rights shall inure directly
and exclusively to the benefit of the owner thereof.
12. Confidentiality. Except as otherwise provided in this Agreement
or with the consent of the other party hereto, each of the Company and ▇▇.▇▇▇
agrees that all information including, without limitation, the terms of this
Agreement, business and financial information, customer and vendor lists and
pricing and sales information, concerning the Company or ▇▇.▇▇▇, or any of their
respective affiliates, provided by or on behalf of any of them shall remain
strictly confidential and secret and shall not be utilized, directly or
indirectly, by the party receiving such information for its own business
purposes or for any other purpose, except and solely to the extent that any such
information is generally known or available to the public through a source or
sources other than such party hereto or its affiliates. Notwithstanding the
foregoing, each party is hereby authorized to deliver a copy of any such
information (a) to any person pursuant to a subpoena issued by any court or
administrative agency, (b) to its accountants, attorneys or other agents on a
confidential basis and (c) otherwise as required by applicable law, rule,
regulation or legal process including, without limitation, the Securities Act of
1933, as amended, and the rules and regulations promulgated thereunder, and the
Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder.
13. Publicity. Subject to Section 12 hereof, neither party shall (i)
create, publish, distribute or permit any written material which makes reference
to the other party hereto without first submitting such material to the other
party and receiving the prior written consent of such party, which consent shall
not be unreasonably withheld or delayed, nor (ii) disclose to the public or any
third party the relationship between them or the transactions contemplated by
this
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Agreement without receiving the prior written consent of the other party, which
consent shall not be unreasonably withheld or delayed. The Company is prohibited
from issuing a press release describing the relationship or the terms of this
Agreement without ▇▇.▇▇▇'s prior approval.
14. Indemnification. Each party (the "Indemnifying Party") hereby
agrees to indemnify and hold harmless the other party (the "Indemnified Party")
and its subsidiaries and affiliates, and their respective directors, officers,
employees, agents, shareholders, partners, members and other owners, against any
and all claims, actions, demands, liabilities, losses, damages, judgments,
settlements, costs and expenses (including reasonable attorneys' fees) (any or
all of the foregoing hereinafter referred to as "Losses") insofar as such Losses
(or actions in respect thereof) arise out of or are based on (i) any
representation or warranty made by the Indemnifying Party being untrue, (ii) any
breach by the Indemnifying Party of any covenant or agreement made by it herein,
(iii) the use by the Indemnified Party of the Trademarks or Promotional Content
of the Indemnifying Party in accordance with the terms hereof or (iv) the sale
of the Indemnifying Party's products or the offering or the Indemnifying Party's
services.
15. Limitation of Liability.
a. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER
PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING,
WITHOUT LIMITATION, DAMAGES FOR LOSS OF REVENUE OR LOST PROFITS, ARISING FROM
ANY PROVISION OF THIS AGREEMENT, EVEN IF SUCH PARTY HAD BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
b. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER
PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY
IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND
IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
16. Disclaimers. Neither party makes any express or implied
warranties or representations with respect to any items sold by the respective
party (including, without limitation, warranties of fitness, merchantability,
non-infringement or any implied warranties arising out of course of performance,
dealing or trade usage). In addition, neither party makes any representation
that the operation of its Site will be uninterrupted or error free, and such
party will not be liable for the consequences of any interruptions or errors.
17. Miscellaneous.
a. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to the
conflict of law principles thereof.
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CONFIDENTIAL MATERIALS OMITTED AND
FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION. ASTERISKS
DENOTE OMISSIONS.
b. This Agreement constitutes the entire agreement of the
parties hereto with respect to the subject matter hereof and supersedes any and
all prior agreement, written and oral, with respect thereto. No change,
amendment or modification of any provision of this Agreement shall be valid
unless set forth in a written instrument signed by both parties.
c. Any and all notices and other communications to either
party hereunder shall be in writing and deemed delivered (i) upon receipt if by
hand, overnight courier or telecopy (provided that in the event of a telecopy,
concurrently therewith a copy is mailed in accordance with clause (ii) hereof)
and (ii) three days after mailing by first class, certified mail, postage
prepaid, return receipt requested (1) if to the Company to ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention: President's Office, telecopier no.:
▇▇▇-▇▇▇-▇▇▇▇, and (2) if to ▇▇.▇▇▇ to ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
attention: Senior Vice President, telecopier no.: ▇▇▇-▇▇▇-▇▇▇▇, or to such other
address for a party as shall be specified by like notice.
d. This Agreement does not constitute either party an
agent, legal representative, joint venturer, partner or employee of the other
for any purpose whatsoever and neither party is in any way authorized to make
any contract, agreement, warranty or representation or to create any obligation,
express or implied, on behalf of the other party hereto.
e. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and together which shall
constitute one and the same instrument.
f. This Agreement and the provisions hereof shall be
binding upon and inure to the benefit of and be enforceable by the parties
hereto and their successors and permitted assigns; provided, however, that
neither party shall have the right to assign its rights or obligations hereunder
to any other person or entity except that ▇▇.▇▇▇ may assign its rights and
obligations hereunder to a subsidiary or affiliate of ▇▇.▇▇▇ provided that
▇▇.▇▇▇ remains jointly and severally liable with respect to such obligations.
g. Each provision of this Agreement shall be considered
severable and if, for any reason, any provision hereof is determined to be
invalid and contrary to, or in conflict with, any existing or future law or
regulation by any court or agency having valid jurisdiction, such provision
shall be given the maximum permissible effect, and such invalidity or illegality
shall not impair the operation or affect the remaining provisions of this
Agreement; and the latter shall continue to be given full force and effect and
bind the parties hereto and such invalid provisions shall be deemed not to be a
part of this Agreement.
h. Neither party shall be liable to fulfill its obligations
hereunder, or for delays in performance, due to causes beyond its reasonable
control, including, but not limited to, acts of God, acts or omissions of civil
or military authority, fires, strikes, floods, epidemics, riots or acts of war.
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12
CONFIDENTIAL MATERIALS OMITTED AND
FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION. ASTERISKS
DENOTE OMISSIONS.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, INC.
By: /s/
----------------------
▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ LLC
By: /s/
----------------------
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13
CONFIDENTIAL MATERIALS OMITTED AND
FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION. ASTERISKS
DENOTE OMISSIONS.
EXHIBIT A
▇▇.▇▇▇ Competitors
1) ▇▇▇▇▇▇.▇▇▇
2) Borders
3) Powells
4) CDNOW
5) ▇▇▇.▇▇▇
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14
CONFIDENTIAL MATERIALS OMITTED AND
FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION. ASTERISKS
DENOTE OMISSIONS.
EXHIBIT B
Company Competitors
1) ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
2) ▇▇▇▇▇▇▇▇.▇▇▇
3) ▇▇▇▇▇▇▇▇▇▇.▇▇▇
4) ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
5) ▇▇▇▇▇▇▇▇.▇▇▇
6) ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
7) ▇▇▇▇▇▇▇▇.▇▇▇
8) ▇-▇▇▇▇▇▇▇▇▇.▇▇▇
9) ▇▇▇▇▇▇▇▇.▇▇▇
10) ▇▇▇▇.▇▇▇
11) ▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
12) ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
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