NEW EXHIBIT 10.39
NETTAXI ONLINE COMMUNITIES, INC.
DEVELOPMENT AND LICENSE AGREEMENT
THIS NETTAXI ONLINE COMMUNITIES DEVELOPMENT AND LICENSE AGREEMENT,
including the Exhibits (the "Agreement"), effective as of May, 1999 (the
"Effective Date"), is hereby entered into by and among Nettaxi Online
Communities, Inc., a Delaware corporation having principal offices at ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Nettaxi") and eBay, a Delaware
corporation, having principal offices at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("eBay").
1. DEFINITIONS.
1.1 "Artwork" means the custom artwork for the eBay Product sleeves
prepared by Nettaxi.
1.2 "Character" means a distinct and identifiable personality, animal
or entity of a party or its licensors which is contained on a Storyboard.
1.3 "eBay Competitor" means any entity providing an Internet
person-to-person auction service or any such similar service.
1.4 "eBay Content" means all content or information (including without
limitation any text, music, sound, photographs, video, graphics, data or
software), in any medium, provided by eBay for use in conjunction with the eBay
Tutorial. "eBay Content" does not include the Storyboard.
1.5 "eBay Product" means the CD-ROMs containing the elements enumerated
in the Statement of Work.
1.6 "eBay Trademarks" means the trademarks, services marks, logos,
trade names, domain name, and slogans of eBay designated by eBay for Nettaxi's
use in conjunction with Nettaxi's performance under this Agreement.
1.7 "eBay Tutorial" means the tutorial program designed, written,
prepared and delivered by Nettaxi from the Storyboard, which for purposes of
this Agreement, constitutes a file, within a larger training program, commonly
referred to as "Internet in the City."
1.8 "Golden Master" means a version of the eBay Product from which
copies can be made.
1.9 "Intellectual Property Rights" means all current and future
worldwide patents and other patent rights, utility models, copyrights, mask work
rights, trade secrets, trademark, and all other intellectual property rights and
the related documentation or other tangible expression thereof.
1.10 "Nettaxi Content" means all content or information (including
without limitation any text, music, sound, photographs, video, graphics, data or
software, Characters), in any medium, provided by Nettaxi displayed on or in
conjunction with the Products, other than the Storyboard.
1.11 "Nettaxi Product" means the CD-ROMs containing the elements
enumerated in Exhibit A including but not limited to Nettaxi's "Internet the
City" Product.
1.12 "Nettaxi Trademarks" means the trademarks, services marks, logos,
trade names, domain name, and slogans of Nettaxi designated by Nettaxi for
eBay's use in conjunction with eBay's performance under this Agreement.
1.13 "Products" shall mean collectively, the eBay Product and the
Nettaxi Product.
1.14 "Registered User" means a user who completes the eBay registration
process by confirming his or her registration with an eBay-supplied password
sent to such user by email.
1.15 "Software" means software of Nettaxi or its licensors included in
the Products.
1.16 "Specifications" means the Specification for the Products
enumerated in Exhibit A and any other Specification for the Products to be
developed under the terms of this Agreement as set forth in the Statement of
Work. The Specifications shall comply with the following general product
description: a short form version of Internet the City containing: (i) a custom
designed eBay building with the eBay logo prominently displayed within the
"City", linked to the eBay Tutorial; (ii) a general description of the manner in
which Nettaxi's services can enhance an end user's use of the eBay services;
(iii) a NETTAXI Building with corresponding tutorial program designed to
familiarize users with the services offered by NETTAXI; (iv) a World Wide Web
Building designed to familiarize users with the basic functions and protocol of
the Internet; and (v) and internet service provider bundle. It is also
anticipated that the eBay building, eBay logo and linked eBay Tutorial will be
included in the Nettaxi Product.
1.17 "Statement of Work" shall mean the information set forth in
Exhibit A (other than the Specifications).
1.18 "Storyboard" means eBay's artwork, verse content, and storyboard
for a tutorial about the eBay site and the functions available on such site, and
any copy, Characters, scripting and other works of authorship included therein.
2. DEVELOPMENT.
2.1 STORYBOARD. On or before May 21, 1999, eBay shall deliver ideas
for the Storyboard to Nettaxi.
2.2 DEVELOPMENT. Using the Storyboard, Nettaxi will develop the eBay
Tutorial and the Artwork in accordance with the Specifications, which shall be
mutually developed by the parties, and the Statement of Work. In the event that
the parties are unable to mutually agree upon the development of the
Specifications, eBay may, in its sole discretion, elect to terminate the
Agreement and refund to Nettaxi any amounts actually paid to Nettaxi pursuant to
Section 7 of this Agreement.
2.3 CHANGES. If during development, eBay proposes in writing a change
to the Statement of Work or the Specifications, Nettaxi agrees to attempt in
good faith to make such changes. In the event any such change materially
increases Nettaxi's development costs hereunder or requires a modification to
the schedule for development, eBay and Nettaxi shall negotiate in good faith for
adjustment to the development charges payable by eBay to Nettaxi and to the
schedule for development.
2.4 OWNERSHIP.
(A) OWNERSHIP BY NETTAXI. Nettaxi shall own all right, title, and
interest in the Nettaxi Content, Nettaxi's Characters, the Software, the product
designed and developed by Nettaxi commonly referred to as "Internet the City",
the Nettaxi Trademarks, and any derivatives, improvements or modifications
thereof, and all Intellectual Property Rights therein (collectively, the
"Nettaxi Property"). eBay shall execute such documents, render such assistance,
and take such other action as Nettaxi may reasonably request, at Nettaxi's
expense, to apply for, register, perfect, confirm, and protect Nettaxi's rights
to the Nettaxi Property.
(B) OWNERSHIP BY EBAY. eBay shall own all right, title, and
interest in the eBay Content, the eBay Trademarks, the Storyboard, the Artwork,
the eBay Tutorial, and any derivatives, improvements or modifications thereof
and all Intellectual Property Rights therein, excluding the Nettaxi Property.
Nettaxi shall execute such documents, render such assistance, and take such
other action as eBay may reasonably request, at eBay expense, to apply for,
register, perfect, confirm, and protect eBay's rights as set forth in this
Section 2.4(b).
3. ACCEPTANCE.
3.1 EBAY TUTORIAL. When completed, Nettaxi shall deliver the eBay
Tutorial to eBay to test whether, in eBay's reasonable opinion, the completed
eBay Tutorial conforms to the Storyboard and the Specifications. The eBay
Tutorial shall not be deemed to be approved by eBay unless eBay gives Nettaxi
written notice of such approval. However, if no notice of approval is delivered
within twenty (20) days, it shall be deemed accepted. If eBay rejects the
completed eBay Tutorial, eBay shall provide a notice of rejection specifying the
reasons for rejection. Nettaxi shall use commercially reasonable efforts to
promptly redeliver the corrected eBay Tutorial to eBay for acceptance testing
pursuant to the process described in this Section 3.1 until approved. Once the
eBay Tutorial is approved, Nettaxi shall use commercially reasonable efforts to
diligently implement its obligations under the Statement of Work to develop and
manufacture the Products.
3.2 EBAY PRODUCT. When completed, Nettaxi shall deliver the eBay
Product to eBay to test whether, in eBay's reasonable opinion, the completed
eBay Product substantially conforms to the Specifications and any applicable
Statement of Work. The eBay Product shall not be deemed to be approved by eBay
unless eBay gives Nettaxi written notice of such approval. However, if no notice
of approval is delivered within twenty (20) days, it shall be deemed accepted.
If eBay rejects the completed eBay Product, eBay shall provide a notice of
rejection specifying the reasons for rejection. Nettaxi shall use commercially
reasonable efforts to promptly redeliver the corrected eBay Product to eBay for
acceptance testing pursuant to the process described in this Section 3.2 until
approved. Once the eBay Product is approved, Nettaxi shall use commercially
reasonable efforts to diligently implement its obligations under the Statement
of Work to manufacture the eBay Product.
3.3 CUSTOM ARTWORK. Nettaxi shall deliver to eBay the Artwork for
approval. The Artwork shall not be deemed to be approved by eBay unless eBay
gives Nettaxi written notice of such approval. However, if no notice of approval
is delivered within twenty (20) days, it shall be deemed accepted. If eBay
rejects the Artwork, eBay shall provide a notice of rejection specifying the
reasons for rejection. Nettaxi shall use commercially reasonable efforts to
promptly redeliver the corrected Artwork to eBay for acceptance testing pursuant
to the process described in this Section 3.3 until approved. Once the Artwork is
approved, Nettaxi shall; (a) use commercially reasonable efforts to diligently
implement its obligations under the Statement of Work to develop and manufacture
the Products, (b) not use the Artwork without eBay's prior approval, and (c) not
change the Artwork in any way without eBay's prior written approval.
4. IMPLEMENTATION.
4.1 SHIPMENT AND EXPENSES. Shipment of the eBay Product shall be made
to eBay at an address specified in writing by eBay. Nettaxi shall bear all
costs and expenses related to manufacturing the Products. All eBay Product
shall be delivered DDP eBay's facilities.
4.2 ORDER QUANTITIES.
(A) INITIAL ORDER QUANTITY. Nettaxi will provide REDACTED copies
of the eBay Product ("Initial Order Quantity") to eBay at no charge, within 90
days following eBay's approval of the eBay Product ("Initial Order Quantity
Period"). During the Initial Order Quantity Period, Nettaxi shall deliver to
eBay the amount of copies of the Initial Order Quantity that eBay shall request
within thirty (30) days of any such request.
(B) ADDITIONAL ORDER QUANTITIES. After the Initial Order Quantity
has been delivered to eBay, eBay may order, and Nettaxi shall deliver, such
reasonable quantities of additional eBay Product as eBay may require in the
quantity and on the schedule described on any purchase order submitted by eBay
to Nettaxi ("Purchase Order"). All Purchase Orders are hereby accepted by
Nettaxi.
(C) PURCHASE ORDERS.
(I) Purchase Orders shall be governed by the terms of this
Agreement, and nothing contained in any such Purchase Order shall in any way
modify such terms of purchase or add any additional terms or conditions. Any
such additional or inconsistent terms shall be deemed rejected.
(II) In the event that Nettaxi notifies eBay that it is
unable to fulfill any eBay order (subsequent to delivery of the Initial Order
Quantity) or any eBay order remains unfulfilled for a period of 30 days (unless
eBay, in its sole discretion, agrees in writing to extend this 30 day period)
eBay shall be entitled to receive a copy of the Golden Master of the eBay
Product.
4.3 NONCONFORMING DELIVERIES. If, at any time, eBay determines that an
eBay Product delivered by Nettaxi does not conform to the Specifications or the
terms of this Agreement, is on defective media, or otherwise is not
distributable by eBay, eBay may return such Product to Nettaxi at Nettaxi's sole
expense and, within 5 days, Nettaxi shall redeliver an equivalent number of
conforming replacement eBay Product to eBay DDP eBay's facility.
5. LICENSE GRANTS.
5.1 EBAY LICENSE TO NETTAXI. Subject to the terms and conditions of
this Agreement, eBay hereby grants to Nettaxi a nonexclusive, worldwide,
royalty-free right to (a) use, reproduce, distribute, create derivative works
of, publicly perform, publicly display and digitally perform the Storyboard
solely to transform such Storyboard into the eBay Tutorial and to reproduce,
distribute (through multiple tiers of distribution), publicly perform, publicly
display and digitally perform the eBay Tutorial only as incorporated on the
Products, (b) to use, reproduce, distribute, create derivative works of,
publicly perform, publicly display and digitally perform any Characters owned by
eBay solely as necessary to exercise the rights granted in clause (a) above; and
(c) use, reproduce, distribute (through multiple tiers of distribution), create
derivative works of, publicly perform, publicly display and digitally perform
the eBay Content and Artwork solely in conjunction with the Products and in
accordance with the Specifications.
5.2 NETTAXI LICENSE TO EBAY. Subject to the terms and conditions of
this Agreement, Nettaxi hereby grants eBay a nonexclusive, worldwide,
royalty-free right (a) to use, reproduce (only in the event eBay is given the
Golden Master) and distribute (through multiple tiers of distribution), publicly
display, publicly perform, digitally perform the eBay Product; (b) to use,
distribute, create derivative works of, publicly perform, publicly display and
digitally perform the eBay Tutorial; and (c) to use and distribute (through
multiple tiers of distribution) Nettaxi's Characters solely in conjunction with
the eBay Tutorial.
5.3 RESTRICTIONS. Characters shall be used substantially in the form
provided to the other party and without material modification. eBay shall not
reverse engineer, decompile or disassemble the eBay Product or use other
techniques to derive the trade secrets embedded in the eBay Product. Nettaxi
agrees that only the approved version of the eBay Tutorial may be distributed by
Nettaxi in conjunction with the Nettaxi Product.
5.4 CONTENT STANDARDS. eBay shall not provide any eBay Content, and
Nettaxi shall not provide any content in the eBay Tutorial (other than the eBay
Content) Nettaxi Content, that: (a) infringes any intellectual property or
publicity/privacy right; (b) violates any law or regulation; (c) is defamatory,
obscene, harmful to minors or child pornographic; (d) contains any viruses,
Trojan horses, worms, time bombs, cancelbots or other computer programming
routines that are intended to damage, detrimentally interfere with,
surreptitiously intercept or expropriate any system, data or personal
information; or (e) is materially false, misleading or inaccurate.
5.5 PROPRIETARY RIGHTS NOTICES. All copies of the eBay Tutorial shall
contain the proprietary rights notices of both parties in a location to be
mutually determined.
5.6 SUBLICENSING. Except where permitted under this Agreement, the
rights granted herein are not sublicenseable. Notwithstanding the foregoing:
(I) In the event that Nettaxi delivers to eBay the Golden
Master of the eBay Product as provided for in Section 4.2(c) of this Agreement,
Nettaxi hereby grants to eBay the right to sublicense its right to reproduce the
eBay Product solely for the purposes of granting such right to a third party
manufacturer to reproduce the eBay Product for delivery to eBay.
(II) eBay grants to Nettaxi the right to sublicense its right
to reproduce the eBay Tutorial solely for the purposes of granting such right to
a third party manufacturer to reproduce the Products for delivery to Nettaxi.
6. TRADEMARKS.
6.1 LICENSE GRANT FROM NETTAXI. Subject to the terms and conditions of
this Agreement, Nettaxi hereby grants to eBay the worldwide, nonexclusive,
royalty-free right to use the Nettaxi Trademarks in conjunction with the
marketing of the eBay Product.
6.2 LICENSE GRANT FROM EBAY. Subject to the terms and conditions of
this Agreement, eBay hereby grants to Nettaxi the worldwide, nonexclusive,
royalty-free right to use the eBay Trademarks only in conjunction with the
marketing of the Nettaxi Product.
6.3 TRADEMARK RESTRICTIONS. The owner of a Trademark (defined as the
eBay Trademark and the Nettaxi Trademark, collectively) may terminate the
foregoing trademark license if, in its reasonable discretion, the licensee's use
of the Trademarks tarnishes, blurs or dilutes the quality associated with the
Trademarks or the associated goodwill and such problem is not cured within 10
days of notice of breach; alternatively, instead of terminating the license in
total, the owner may specify that certain uses by the licensee may not contain
the Trademarks. Title to and ownership of the owner's Trademarks shall remain
with the owner. The licensee shall use the Trademarks exactly in the form
provided and in conformance with any trademark usage policies. The licensee
shall not take any action inconsistent with the owner's ownership of the
Trademarks, and any benefits accruing from use of such Trademarks shall
automatically vest in the owner. The licensee shall not form any combination
marks with the other party's Trademarks.
7. PAYMENT
7.1 DEVELOPMENT COSTS. eBay shall pay Nettaxi REDACTED on the
Effective Date of this Agreement for Nettaxi's development of the eBay Tutorial.
7.2 EBAY PRODUCT COSTS. For any amount of the eBay Product ordered by
eBay above the Initial Order Quantity, eBay agrees to pay Nettaxi REDACTED per
unit.
7.3 REGISTERED USER FEE.
(A) Except as specified below in Section 7.3(b), eBay shall pay Nettaxi
REDACTED for each Registered User (the "Bounty") that registers by way of the
unique URL on the Nettaxi Product distributed by Nettaxi. eBay shall pay
Nettaxi REDACTED for each Registered User that registers by way of the unique
URL on the eBay Product distributed by eBay. All Bounty payments shall be made
within 30 days following the end of a calendar quarter.
(B) In no event shall eBay owe a Bounty (i) for Registered Users
who have one or more existing accounts with eBay, or (ii) for Registered Users
whose accounts are terminated by eBay within 90 days following their
registration.
7.4 TAXES. All payments made by eBay include, and Nettaxi shall pay all
sales, use and other taxes associated with such payments or related to the
parties' performance of their obligations or exercise of their rights under this
Agreement, excluding taxes based on eBay's net income.
8. RECORDS AND AUDITS.
eBay shall maintain accurate records with respect to the number of Registered
Users and the source URL's of the Registered Users. Nettaxi may, upon no less
than 30 days prior written notice to eBay and not more than once per year, cause
an accountant to inspect the foregoing records during eBay's normal business
hours. If an audit requested by Nettaxi reveals that eBay has underreported by
10% or more for any audited period of time, eBay shall pay Nettaxi all
reasonable costs and expenses incurred by Nettaxi in conducting such audit,
including, but not limited to, any amounts paid to any auditor or attorney and,
in addition, make the underreported payments or refund pro rata based on the
underreported performance, as applicable.
9. EXCLUSIVITY.
9.1 During the term of this Agreement:
(A) Nettaxi's license grant with respect to any Nettaxi Content on
the eBay Product shall be exclusive as to eBay with respect to any other
Internet auction site.
(B) Nettaxi's license grant to eBay for any Nettaxi Intellectual
Property Rights contained in the eBay Tutorial shall be exclusive in the field
of tutorials for Internet auction sites.
10. TERM AND TERMINATION.
10.1 TERM. This Agreement shall commence on the Effective Date and
shall continue for REDACTED unless earlier terminated as provided in this
Section 10. Thereafter the parties may mutually agree to renew this Agreement
for additional 1 year terms.
10.2 TERMINATION FOR BREACH. Either Nettaxi or eBay may terminate this
Agreement if the other party materially breaches this Agreement and such failure
continues for a period of thirty (30) days following receipt of written notice
thereof by the breaching party.
10.3 EFFECTS OF TERMINATION. Upon expiration or termination:
(A) All licenses granted hereunder shall terminate; however, eBay
may continue to distribute the eBay Product for as long as necessary to deplete
its inventory.
(B) Nettaxi shall only be obligated to deliver, and eBay shall
only be obligated to pay for, those quantities of eBay Product which are the
subject of any Purchase Order that Nettaxi has accepted in writing; provided
that eBay may continue to distribute the eBay Product for as long as necessary
to deplete its inventory.
(C) All obligations of eBay to pay Nettaxi any Bounty pursuant to
Section 7.3 of this Agreement shall be terminated.
10.4 SURVIVAL. Sections 1, 2.4, 10.3, 10.4, 12, 14, and 15 shall
survive termination of this Agreement.
11. WARRANTIES.
11.1 PERFORMANCE OF SERVICES. Nettaxi warrants that (a) it, and each
of the subcontractors that it uses to provide and perform the services set forth
in the Statement of Work ("Services"), will have the necessary knowledge,
skills, experience, qualifications and resources to provide and perform the
Services in accordance with this Agreement; and (b) the Services will be
performed in a diligent, workmanlike manner which meets or exceeds industry
standards applicable to the performance of such services.
11.2 OPERATION. Nettaxi warrants that the Products shall conform to
the Specifications.
11.3 DISCLAIMER. EXCEPT AS OTHERWISE EXPRESSLY STATED HEREIN, EACH
PARTY PROVIDES ALL MATERIALS AND SERVICES TO THE OTHER PARTY "AS IS," AND EACH
PARTY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED OR STATUTORY,
INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT,
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS OTHERWISE
EXPRESSLY STATED HEREIN, NETTAXI DOES NOT WARRANT THAT THE PRODUCTS OPERATE
UNINTERRUPTED OR ERROR-FREE. Each party acknowledges that it has not entered
into this Agreement in reliance upon any warranty or representation except those
specifically set forth herein.
12. INDEMNIFICATION.
Each party (the "Indemnifying Party") shall indemnify the other party (the
"Indemnified Party") against any and all claims, losses, costs and expenses,
including reasonable attorneys' fees, which the Indemnified Party may incur as a
result of claims in any form by third parties arising from the Indemnifying
Party's acts, omissions or misrepresentations to the extent that the Indemnified
Party is deemed a principal of the Indemnifying Party. In addition, eBay shall
indemnify Nettaxi against any and all claims, losses, costs and expenses,
including reasonable attorneys' fees, which Nettaxi may incur as a result of
claims in any form by third parties arising from eBay Content. In addition,
Nettaxi shall indemnify eBay against any and all claims, losses, costs and
expenses, including reasonable attorneys' fees, which eBay may incur as a result
of claims in any form by third parties arising from the Products (excluding
those attributable to eBay Content. The foregoing obligations are conditioned
on the Indemnified Party: (i) giving the Indemnifying Party notice of the
relevant claim, (ii) cooperating with the Indemnifying Party, at the
Indemnifying Party's expense, in the defense of such claim, and (iii) giving the
Indemnifying Party the right to control the defense and settlement of any such
claim, except that the Indemnifying Party shall not enter into any settlement
that affects the Indemnified Party's rights or interest without the Indemnified
Party's prior written approval. The Indemnified Party shall have the right to
participate in the defense at its expense.
13. COMPLIANCE WITH LAWS.
At its own expense, Nettaxi shall comply with all applicable laws and
regulations regarding the performance of its obligations under this Agreement.
14. LIMITATION OF LIABILITY.
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOSS OF
PROFITS OR FOR INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR
CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER BASED ON CONTRACT, TORT (INCLUDING,
WITHOUT LIMITATION, NEGLIGENCE), WARRANTY, GUARANTEE OR ANY OTHER LEGAL OR
EQUITABLE GROUNDS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. NEITHER PARTY SHALL MAKE REPRESENTATIONS OR WARRANTIES TO ANY
REGISTERED USER OR THIRD PARTY ON BEHALF OF THE OTHER PARTY AND IN NO EVENT WILL
EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY REPRESENTATION OR WARRANTY
MADE TO ANY REGISTERED USER OR THIRD PARTY BY THE OTHER PARTY.
EXCEPT WITH RESPECT TO SECTION 12, IN NO EVENT SHALL EITHER PARTY'S LIABILITY
UNDER THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID BY EBAY TO NETTAXI
HEREUNDER.
15. GENERAL PROVISIONS.
15.1 GOVERNING LAW. This Agreement will be governed and construed in
accord-ance with the laws of the State of California without giving effect to
conflict of laws principles. Both parties submit to personal jurisdiction in
California and further agree that any cause of action arising under this
Agreement shall be brought in a court in Santa ▇▇▇▇▇ County, California.
15.2 SEVERABILITY; HEADINGS. If any provi-sion herein is held to be
invalid or unenforceable for any reason, the remaining provisions will continue
in full force without being impaired or invalidated in any way. The parties
agree to replace any invalid provision with a valid provision that most closely
approximates the intent and economic effect of the invalid provision. Headings
are for reference purposes only and in no way define, limit, construe or
describe the scope or extent of such section.
15.3 PUBLICITY. Neither party shall issue any press release or similar
publicity statement regarding this Agreement without the prior approval of both
parties (not to be unreasonably withheld) or as required by law.
15.4 FORCE MAJEURE. Either party shall be excused from any delay or
failure in performance hereunder caused by reason of any occurrence or
contingency beyond its reasonable control, including but not limited to, acts of
God, earthquake, labor disputes and strikes, riots, war, and governmental
requirements. Notwithstanding the foregoing, a change in economic conditions or
technology shall not be deemed a Force Majeure event. The obligations and
rights of the party so excused shall be extended on a day-to-day basis for the
period of time equal to that of the underlying cause of the delay. In the event
of a force majeure materially affecting the parties' performance under this
Agreement that lasts for more than 30 days, either party may terminate this
Agreement.
15.5 INDEPENDENT CONTRACTORS. The parties are independent contractors,
and no agency, partnership, joint venture, employee-employer or
franchisor-franchisee relationship is intended or created by this Agreement.
Neither party shall make any warranties or representations on behalf of the
other party.
15.6 TERMINATION FOR ASSIGNMENT/CHANGE OF CONTROL. By providing written
notice, eBay may, in its sole discretion, immediately terminate this Agreement
if Nettaxi acquires or is acquired by an eBay Competitor. By providing written
notice, Nettaxi may, in its sole discretion, immediately terminate this
Agreement if eBay acquires or is acquired by an entity that develops tutorials
and provides services substantially similar to those provided by Nettaxi for
eBay pursuant to this Agreement.
15.7 NOTICE. Any notices hereunder shall be given to the appropriate
party at the address specified above or at such other address as the party shall
specify in writing. Notice shall be deemed given: upon personal delivery; if
sent by fax, upon confirmation of receipt; or if sent by a reputable overnight
courier with tracking capabilities, 1 day after the date of mailing.
15.8 ENTIRE AGREEMENT; WAIVER. This Agreement sets forth the entire
understanding of the parties with respect to the subject matter hereof and
supersedes all prior contracts, memoranda, agreements, arrangements,
communications and discussions, whether oral or written with respect to such
subject matter. The parties hereby expressly reject any conflicting term in any
purchase order, invoice, order acknowledgment or any similar business form,
which terms shall have no effect. It may be changed only by a writing signed by
both parties. The waiver of a breach of any provision of this Agreement will
not operate or be interpreted as a waiver of any other or subsequent breach.
15.9 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which shall
be taken together and deemed to be one instrument.
15.10 ATTORNEYS' FEES. In addition to any other relief awarded, the
prevailing party in any action arising out of this Agreement shall be entitled
to its attorneys' fees and costs.
IN WITNESS WHEREOF, the parties have duly executed and delivered this
Agreement as of the Effective Date set forth above.
EBAY, INC.: NETTAXI ONLINE COMMUNITIES, INC.:
By: /S/ ▇▇▇▇▇ ▇▇▇▇▇▇ By: /S/ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇
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Title: V.P. Business Development Title: CEO
and Marketing
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EXHIBIT A
STATEMENT OF WORK
REDACTED
EXHIBIT B
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