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eCommerce Services Agreement

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CyberSource Internet Commerce Services Agreement



This CyberSource Internet Commerce Suite Services Agreement (the "Agreement") is entered into as of May 1, 1999 (the "Effective Date") by and between CyberSource Corporation, a Delawa re corporation ("CyberSource"), and Beyond.com, a Delaware corporation ("Customer").



Customer desires to obtain and CyberSource is willing to supply certain Internet commerce 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

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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, customer data, revenue, trans a ction volume, forecasts, 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 disclosure to t he receiving party by the disclosing party or the date of this Agreement, whichever is earlier, 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 receivi n g 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 wri t ten 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) co pyrights (including, without limitation, the right to reproduce, distribute copies of, display and perform the copyrighted work and to prepare derivative works), copyright registrations and applications, trademark rights (including, without limitation, re g istrations and applications), patent rights, trade names, 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, rega r dless 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, en hancement or improvement, regardless of patentability, but including patents, patent applications, trade secrets, and know-how; and (iii) all derivatives of any of the foregoing.



c) "CyberSource Internet Commerce Suite(SM)." Those Internet commerce servi ces of CyberSource to be provided to Customer hereunder including, but not limited to, Credit Card Processing, Internet Fraud Screen, Fulfillment Messaging, Delivery Address Verification, Digital Delivery, Digital Warehousing, Tax Calculation, Policy Comp liance, Export Compliance, and Digital Product Rights Management (each a "Service" and collectively the "Services").



d) "Products." Those products, content and/or services that CUstomer purports to own or have rights to, for which the Services will be rendered under this Agreement.



e) "Account." Customer identifier created and maintained in the CyberSource system to enable Customer's use of the Services.



[*]- CERTAIN INFORMATION CONTAINED IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.





2. Services and Fees

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a) Customer may add (an) additional Service(s) or Account(s) by submitting a Service Enhancement Request which sh all be incorporated into this Agreement. Any Service or Account added subsequently to the execution of this Agreement will be provided to Customer at the then current price or at a price mutually agreed upon by the parties.



b) CyberSource will deliver t o 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.



c) Interest shall accrue at the lesser of 1.0% per month or the maximum amount permitted by applicable law for any fees that remain un paid more than thirty (30) calendar days past the date of the applicable invoice (the "Late Fee"). In the event of a dispute made in good faith as to the amount of fees, Customer agrees to remit payment on any undisputed amount(s) in accordance with Secti o n 2(c) above; and, the Late Fee shall not accrue as to any disputed amounts unless not paid within thirty (30) calendar days after said dispute has been resolved by both parties and then shall only begin to so accrue after thirty (30) days from the date t he dispute has been resolved by both parties.



d) After the initial term, 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 e ffective date of the fee change. For any service that becomes available after the Effective Date, CyberSource warrants that Customer will be charged fees no less favorable than as listed in the standard price schedule for direct merchants in effect at the time the service is offered. Furthermore, CyberSource warrants that the level of discount to be applied to the fee for any new service will be determined by the monthly volume of all Internet commerce services achieved by Customer for the relevant month.



e) Except as otherwise provided in this Agreement, Customer hereby grants CyberSource such royalty-free, limited, non-transferable, non-exclusive right, authorization, and license to Customer's Products as necessary in connection with the Products to pe rform the Services for Customer in accordance with this Agreement.



3. Term and Termination

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a) The initial term of this Agreement shall be one (1) year beginning from the Effective Date. Thereafter, this Agreement will renew a utomatically for additional terms of one (1) year ("Additional Term") unless (i) Customer provides written notice to CyberSource at least thirty (30) days prior to any such renewal that the Agreement shall not so renew, or (ii) CyberSource provides writte n notice to Customer at least sixty (60) days prior to any such renewal that the Agreement shall not so renew.



b) [*]



c) [*]



i) [*]



ii) [*]



d) In the event that CyberSource reasonably believes that Customer's conduct (including, with out limitation, intentionally transmitting inaccurate and/or incomplete data to CyberSource) or its Products violate applicable law or pose a threat to CyberSource's systems, equipment, processes, or Intellectual Property (the "Threatening Condition"), Cy b erSource will provide Customer with notice of the Threatening Condition, upon receipt of which Customer agrees to exercise best efforts to cure said Threatening Condition. If in the reasonable and good faith determination of CyberSource, the Threatening C ondition poses an imminent or actual threat to CyberSource's systems, equipment, processes, or Intellectual Property, Customer agrees to suspend any and all activity on Customer's Account until such threat is



[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.





cured; but, CyberSource may suspend the Account until the threat is cured if Customer does not suspend activity on the Acco unt. In any event, CyberSource may terminate this Agreement without further requirement of notice if the Threatening Condition remains uncured more than thirty (30) calendar days after Customer is notified of the Threatening Condition.



e) The Agreement may be terminated by either party effective immediately with 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 receiver, 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 i nstituted 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 thir ty (30) calendar days of termination of this Agreement, each of the parties shall (i) return to the other party all materials belonging to the other party that constitutes said party's Confidential Information and Intellectual Property; or, (ii) destroy t he other party's materials, Confidential Information, and Intellectual Property and submit to the other party a notice certifying such destruction.



4. Intellectual Property

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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 prov i ded 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 age n ts 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 propert y, free of any claims whatsoever by Customer.



b) Customer agrees not to remove or export from the United States or re-export any Intellectual Property of CyberSource including, but not limited to, the CyberSource APIs, Client Libraries, or Client Development Kits, or any direct product(s) thereof.



c) Should Customer use CyberSource's Global Rights Registry 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

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Each Party (the "Receiving Party") hereby agrees (i) to hold the other party's (the "Disclosing P
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