EXHIBIT 10.25
*** Text Omitted and Filed Separately
Confidential Treatment Requested
Under 17 C.F.R. (S)(S)
200.80(B)(4), 200.83 AND
240.24B-2
CyberSource On-Demand Commerce Applications(TM) and Services Agreement
This CyberSource On-Demand Commerce Applications and Services Agreement (the "Agreement") is entered into by and between CyberSource Corporation, a Delaware corporation ("CyberSource"), and Mercata, Inc., a Delaware corporation ("Customer").
Customer desires to obtain and CyberSource is willing to supply certain services on the terms and subject to the conditions set forth in this Agreement.
For good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, CyberSource and Customer hereby agree as follows:
1. Certain Definitions
-------------------
The following definitions shall apply to this Agreement.
a) "Confidential Information." Any data or information, oral or written, treated as confidential that relates to either party's (or, if either party is bound to protect the confidentiality of any third party's information, such third party's) past, present, or future research, development or business activities, including any unannounced products and services, any information relating to services, developments, inventions, processes, plans, financial information, forecasts, and projections and the financial terms of this Agreement. Notwithstanding the foregoing, Confidential information shall not be deemed to include information if: (i) it was already known to the receiving party prior to the date of this Agreement as established by documentary evidence; (ii) it is in or has entered the public domain through no breach of this Agreement or other wrongful act of the receiving party; (iii) it has been rightfully received by the receiving party from a third party and without breach of any obligation of confidentiality of such third party to the owner of the Confidential Information; (iv) It has been approved for release by written authorization of the owner of the Confidential Information; (v) it has been independently developed by a party without access to the Confidential Information of the other party; or (vi) it is required to be disclosed pursuant to final binding order of a governmental agency or court of competent jurisdiction, provided that the owner of the Confidential Information has been given reasonable notice of the pendency of such an order and the opportunity to contest it.
b) "Intellectual Property." All (i) copyrights (including, without limitation, the right to reproduce, distribute copies of, display and perform the copyrighted work and to prepare ____ works; copyright registrations and applications, trademark rights (including, without limitation, registrations and applications), patent rights, trade names, mask-work rights, trade secrets, moral rights, author's rights, privacy rights, publicity rights, algorithms, rights in packaging, goodwill and other proprietary rights, and all renewals and extensions thereof, regardless of whether any of such rights arise under the laws of the United States or any other state, country or jurisdiction, (ii) intangible legal rights or interests evidenced by or embodied in any idea, design, concept, technique, Invention, discovery, enhancement or improvement, regardless of patentability, but including patents, patent applications, trade secrets, and know-how; (iii) all derivatives of any of the foregoing.
c) "On-Demand Commerce Applications(TM) and Services." Those products and services of CyberSource to be provided to Customer hereunder (collectively the "Services").
d) "Products." Those products, content and/or services that Customer purports to own or have rights to for which the Services of CyberSource will be rendered under this Agreement.
e) "Account." Customer identification created and maintained in the CyberSource system to enable Customer's use of ON-DEMAND COMMERCE APPLICATIONS(TM) and Services.
2. Services and Fees
-----------------
a) CyberSource shall provide Customer with the service(s) selected below:
[ ] Easy Start(TM) Implementation _______ (Customer's Initials)
[X] SCMP Implementation (Enterprise) /s/ JCE (Customer's Initials)
-------
[ ] Global Rights Registry _______ (Customer's Initials)
[ ] Other_______________ _______ (Customer's Initials)
b) Customer may add (an) additional Service(s) by submitting a Service Enhancement Request that shall be incorporated into this Agreement. Services added subsequently to the execution of this Agreement will be provided to Customer at the then current price.
c) CyberSource will deliver to Customer an Invoice for Services rendered during the billing period in the amounts set forth in the Price Annex to this Agreement on or near the fifteenth (15th) calendar day of each month following the month in which the Services are provided. Customer shall remit the amount(s) due under the invoice no later than thirty (30) calendar days from the date of said invoice.
d) Interest shall accrue at the lesser of 1.0% per month or the maximum amount permitted by applicable law for any fees that remain unpaid more than thirty (30) calendar days past the date of the applicable invoice.
e) CyberSource shall be entitled to revise any and all of the aforesaid fees provided that CyberSource gives written notice to Customer at least sixty (60) calendar days prior to the effective date of the fee change.
f) Except as otherwise provided in his Agreement, Customer hereby grants CyberSource such royalty-free, limited, non-exclusive right, authorization, and license to Customer's Intellectual Property as necessary in connection with the Products to perform the Services for Customer in accordance with this Agreement.
3. Term and Termination
--------------------
a) The initial term of this Agreement shall be one (1) year beginning from the Effective Date. Thereafter, this Agreement will renew automatically for additional terms of one (1) year ("Additional Term") unless either party provides written notice to the other party at least thirty (30) days prior to any such renewal that the Agreement shall not so renew.
b) The Agreement may be terminated by either party at any time in the event of a material breach by the other party that remains uncured after thirty (30) calendar days written notice thereof. The parties acknowledge that nonpayment of fees constitutes a material breach of this Agreement.
c) Notwithstanding any provision in this Agreement to the contrary, this Agreement may be terminated by either party at any time without cause with sixty (60) days prior written notice thereof.
d) In the event that CyberSource reasonably believes that Customer's conduct or its Products violate applicable law, injure the reputation of CyberSource, or pose a threat to CyberSource's systems, equipment, processes, or Intellectual Property (the "Offending Condition"), CyberSource may suspend providing the Services to Customer with one (1) day prior written notice and thereafter may terminate this Agreement without notice if the offending condition remains uncured more than thirty (30) calendar days after said notice.
e) The Agreement may be terminated by either party effective immediately and without any requirement of notice, in the event that (i) the other party files a petition, in bankruptcy, seeking any reorganization, arrangement, composition, or similar relief under any law regarding insolvency or relief for debtors, or makes an assignment for the benefit of creditors' (ii) a received, trustee, or similar officer is appointed for the business or property of such
party; (iii) any involuntary petition or proceeding, under bankruptcy or insolvency laws, is instituted against such party and not stayed, enjoined, or discharged within sixty (60) days; or (iv) the other party adopts a resolution for discontinuance of its business or for dissolution.
f) Except as otherwise provided in this Agreement, within five (5) business days of termination of this Agreement, each of the parties shall return to the other party all materials belonging to the other party that constitutes said party's Confidential Information and/or Intellectual Property.
4. Intellectual Property
---------------------
a) Except as expressly set forth in this Agreement, neither party will acquire any right, title, or interest in the other's Intellectual Property. Except as otherwise provided in this Agreement, CyberSource agrees that as between CyberSource and Customer all right, title, and interest in any Products provided to CyberSource under this Agreement shall remain with Customer. Except as otherwise provided in this Agreement, Customer agrees that as between CyberSource and Customer all Intellectual Property originally created by CyberSource and its authorized agents and/or contractors in connection with this Agreement, including, without limitation, all fraud, export and other screening histories, and all documentation (in any and all media), renewals and extensions thereof, shall be entirely CyberSource's property, free of any claims whatsoever by Customer.
b) Should Customer use CyberSource's Global Rights Registry(TM) Services to manage Customer's Intellectual Property, CyberSource will exercise commercially reasonable efforts to protect such Intellectual Property while under CyberSource's care.
5. Confidential Information
------------------------
a) Each party ("Receiving Party") agrees that any Confidential Information received from the other party ("Disclosing Party") (i) shall not be used except as necessary to perform the obligations required under this Agreement, (ii) shall be disclosed only to those of its employees as are necessary for the purposes hereunder, (iii) shall not be disclosed to third parties without the written consent of the Disclosing Party during the term of this Agreement and three (3) years thereafter, and (iv) shall be kept in safe care as if would keep its own, similar confidential information (which care shall not in any case be less than reasonable).
b) Upon termination of this Agreement, and except as otherwise provided in this Agreement, each party shall promptly deliver to the other party all of the other party's Confidential Information.
6. Limitation of Liability
-----------------------
a) UNDER NO CIRCUMSTANCES (i) SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE, PROFITS OR BUSINESS, COSTS OF DELAY, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR SUCH PARTY'S LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE; OR (ii) SHALL CYBERSOURCE BE LIABLE TO CUSTOMER WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY AMOUNTS IN EXCESS, IN THE AGGREGATE, OF FEES PAID TO CYBERSOURCE, HEREUNDER DURING THE TWELVE-MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE. THE EXCLUSIONS AND LIMITATIONS OF THIS SECTION DO NOT APPLY TO LIABILITY ARISING FOR BODILY INJURY OF A PERSON OR IN STATES THAT PROHIBIT THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LIMITATIONS ON THE DURATION OF AN IMPLIED WARRANTY.
b) Customer shall bear (i) all collection risk (including, without limitation, credit card fraud and any other type of credit card fraud) with respect to sales of its Products; and (ii) all responsibility and liability for the proper payment of all taxes which may be levied or assessed, including, without limitation, sales taxes.
c) Customer is solely responsible for maintaining complete backup records of all information relating to its customers' orders, inquiries and purchases and any other customer information, once such information has been provided to Customer by CyberSource.
d) Both parties agree that CyberSource has no obligation to monitor or regulate the content of the Products or to ascertain Customer's right to have CyberSource perform the Services with respect to the Products under this Agreement.
7. Warranties
----------
a) CyberSource hereby represents and warrants that the Services provided to customer hereunder will conform substantially to specifications set forth and contained in CyberSource marketing materials, the CyberSource website, and support documentation provided to Customer by CyberSource.
b) CyberSource hereby represents and warrants (i) that the Services do not infringe the Intellectual Property rights of any third party; (ii) that any software created by CyberSource to perform the Services hereunder is Year 2000 complaint, in that, it will accurately process, address, store, and calculate date and time data from, into, and beyond the calendar years 1999, 2000, and 2001 A.D. including leap year calculations and that it will not produce abnormal or invalid results or cease operations due to the change from calendar years 1999, 2000, 2001 A.D., and beyond; and (iii) that any software created and used by CyberSource to perform the Services under this Agreement will be virus-free.
c) Customer hereby represents and warrants (i) that the Products do not infringe upon any third party Intellectual Property Rights and are not defamatory, libelous, or obscene; (ii) that Customer has all necessary authorizations to permit CyberSource to perform the Services with respect to the Products; and (iii) that Customer has obtained all necessary governmental permits, licenses, and authorizations for the distribution of the Products to the territories, countries, and entities that are contained in instructions to CyberSource.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, CYBERSOURCE HEREBY SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SERVICES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OR DEALING OR COURSE OF PERFORMANCE.
8. Indemnification
---------------
a) Subject to Section 6 of this Agreement, each Party (the "Indemnifying Part ...
*End of Preview*
Click the 'Add to Cart' button to download the complete and formatted agreement.