Looking for an agreement? Search from over 1 million agreements now.

E-commerce And Marketing Agreement

This is an actual contract by SportsLine.com.
Browse the agreement preview below and buy the entire agreement for $35
Search This Document
COMMERCE AND MARKETING AGREEMENT


This E-Commerce and Marketing Agreement (this "Agreement") is entered into between MVP.COM, INC., a Delaware corporation ("MVP"), and SPORTSLINE.COM, INC., a Delaware corporation ("SportsLine").


BACKGROUND


A. SportsLine publishes and distributes a variety of sports-related information, content and services, and publishes and operates various sports-related Web sites.


B. MVP designs and operates Web sites, for itself and third parties, through which MVP will market and sell, among other things, sporting goods; outdoor, fitness, and athletic footwear, equipment, and apparel; and sports memorabilia.


C. SportsLine and MVP desire to enter into a 10-year strategic relationship, all as more particularly set forth herein subject to the following terms and conditions.


Therefore, the parties agree as follows:


AGREEMENT


1. DEFINITIONS. Capitalized terms not expressly defined elsewhere in this Agreement have the following meanings:


1.1. "Above-the-Fold" means placement on a Web page such that the placement is viewable on a computer screen at a 800 x 600 pixels resolution when the user first accesses such Web page without having to scroll down to view more of the Web page.


1.2. "Acquired Businesses" means International Golf Outlet, Inc., Golf Club Trader, Inc., and TennisDirect.com, Inc.


1.3. "Acquired Business Customers" all persons whose personal information is contained in the respective databases of the Acquired Businesses as of the Effective Date.


1.4. "Acquired URLs" means those URLs listed in Schedule 2.11 of that certain Stock Purchase Agreement of even date herewith relating to the sale of stock of the Acquired Businesses.


1.5. "Affiliate" means, with respect to a party, any person or entity that controls, is controlled by, or is under common control with such party, where "control" means ownership of fifty percent (50%) or more of the outstanding voting securities (but only as long as such person or entity meets these requirements).


1.6. "Change in Control" of a party means the occurrence of any of the following: (a) any consolidation or merger of such party with or into any other entity in which the holders of such party's outstanding shares immediately before such consolidation or merger do not, immediately after such consolidation


CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSION.


or merger, retain stock representing a majority of the voting power of the surviving entity or stock representing a majority of the voting power of an entity that wholly owns, directly or indirectly, the surviving entity; (b) the sale, transfer or assignment of securities of such party representing a majority of the voting power of all of such party's outstanding voting securities to an acquiring party or group; or (c) the sale of all or substantially all of such party's assets.


1.7. "Contract Year" means a twelve (12) month period beginning on the Effective Date or any anniversary thereof.


1.8. "Deep Vertical Content" means any special, in-depth, or feature-length articles, essays, editorials, photographs, videos, and audio files or other media related to any sport, activity, team, athlete, or any other sports, outdoors, or fitness-related content (or any collection of the foregoing) that consists of more than only news, odds, video/audio highlights, scores (including real-time and delayed scores), statistics (including real-time and delayed statistics), fantasy sports leagues and related utilities, and game summaries, in each case other than Sports Merchandise Content.


1.9. "Effective Date" shall mean January 1, 2000.


1.10. "Internet" means the global network of interconnected computer networks, each using the Transmission Control Protocol/Internet Protocol (and/or such other standard network interconnection protocols as may be adopted from time to time), which is used to transmit content that is directly or indirectly delivered to a computer or other digital electronic device for display to an end-user, whether delivered through online browsers, commercial online services, offline browsers (a browser that allows users to access a site without requiring an online connection) or through push technology, electronic mail, broadband distribution (high bandwidth above 56kb), satellite, wireless or otherwise.


1.11. "Manufacturer" means a company whose primary business is the ***.


1.12. "MVP Competitor" means any company, other than a ***, that (a) owns or operates a Web site which is engaged primarily in the business of selling or offering for sale Sports Merchandise (e.g., ***and (b) any company engaged primarily in the business of the retail sale of Sports Merchandise (including bricks-and-mortar retailers and catalog retailers).


1.13. "MVP Proprietary Web Site" means any Web site under the "mvp" second-level domain (e.g., mvp.com or xxx.mvp.com) currently known as the MVP.com Web site and any successor site, or any other Web site owned by MVP. MVP Proprietary Web Site does not include any Web site operated by MVP on behalf of or in conjunction with any third party or any MVP Affiliate.


1.14. "MVP Web Sites" means (a) all MVP Proprietary Web Sites, and (b) any other Web sites (other than the SportsLine Stores or Third Party Stores) owned, created, operated, or produced by or on behalf of MVP, including the Web sites located at the Acquired URLs and any successors to such Web sites.


2 CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSION.


1.15. "Net Merchandising Revenue" means all gross revenue (including product sales and gift certificates), minus ***, and, to the extent included in gross revenue, ***, from all Sports Merchandise sales transactions conducted:


(a) on or through any SportsLine Stores;


(b) on or through a Third Party Store (other than a store
operated for ***or ***) until such time as merchandise revenue sharing
payments become due to any third party on account of the applicable
Third Party Store and which merchandise revenue sharing payments MVP is
obligated to pay;


(c) with a *** who completes a sales transaction for Sports
Merchandise either:


(i) ***(ii) ***(iii) ***(iv) ***(v) ***(vi)
***(d) subject to Section ***, with an
Acquired Business Customer who completes a
sales transaction for Sports Merchandise
either:***(i) ***(ii) ***(iii) ***(iv)
***(v) ***


1.16. "Point-of-Sale Advertisement" means a promotion designed to lead a SportsLine User directly to a third party Web site for the express purpose of selling Sports Merchandise.


1.17. "Quarter" or "Quarterly" means a three (3) month period beginning on the Effective Date or a three (3) month, six (6) month, or nine (9) month anniversary thereof.


1.18. "Session" means a period of time commencing when a user first accesses a page of a MVP Web Site and terminating on the later of when the user (a) places a purchase order on the applicable MVP Web Site, (b) accesses a MVP Web Site (e.g., through a link from another site, a bookmark or hand entering URL), or (c) otherwise exits the applicable MVP Web Site.


1.19. "Sports Content" means sports scores, statistics, game summaries, wire reports, news, editorial, photographs, video and audio files, fantasy sports games, and other sports-related information and services of a similar nature, whether in text, multimedia, or any other format, published on the SportsLine Web Site. Sports Content specifically includes content licensed to SportsLine with right of further sublicense. Sports Content specifically excludes content from third party Web sites operated by or affiliated with SportsLine which SportsLine does not have the right to license or sublicense to third parties.


1.20. "SportsLine Competitor" means any Internet or other online sports media service of any of the following: ***; ***1.21. "SportsLine Existing Merchandise Agreements" means the agreements between SportsLine and the third parties listed in Exhibit F.


1.22. "SportsLine Stores" means all of (a) those pages of the SportsLine Web Site at any time during the Term comprising transactional platforms for the sale of Sports Merchandise, (b) any future Web Sites owned or operated by MVP that are co-branded with SportsLine or its Affiliates; and (c)


3 CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSION.


SportsLine's business-to-consumer auction Web sites that sell primarily Sports Merchandise. The SportsLine Stores in existence as of the Effective Date are set forth in Exhibit A. SportsLine Stores do not include Third Party Stores.


1.23. "SportsLine User" means any person who accesses the SportsLine Web Site or other Web sites owned, operated or controlled by SportsLine or its Affiliates.


1.24. "SportsLine Web Site" means all pages under the "sportsline" second-level domain (e.g., sportsline.com or cbs.sportsline.com) currently known as the "CBS SportsLine" Web site (and any successor Web site), excluding any derivative (e.g., the use of a tertiary domain) of the "sportsline.com" second level domain directed to any information, materials or content not published under the CBS SportsLine or successor brand.


1.25. "Sports Merchandise" means (a) sports, outdoors and fitness-related equipment (e.g., bats, balls, gloves, racquets, clubs, helmets, tents, skis, fishing equipment and exercise equipment); (b) sports, outdoors and fitness-related clothing (e.g., team jerseys, footwear, and exercise clothing) and active apparel (other than SportsLine and CBS logo items such as shirts and caps with respect to which SportsLine will retain such rights); (c) sports-related items that are unique and worthy of remembrance (e.g., autographed items such as balls, bats, jerseys, and pictures as well as clothing, footwear, and equipment actually worn or used by famous athletes); and (d) electronics primarily designed for sports-related use (e.g., heart rate monitors, marine electronic devices, cycling computers). Sports Merchandise shall not include ***


1.26. "Sports Merchandise Content" means any special, in depth, or feature length articles, essays, editorials, photographs, videos, audio files, and other information of a similar nature (whether in text, multimedia, or any other format) or other media, tools or applications (or any collection of the foregoing) related to (i) the competitive or recreational use of sports products, including Sports Merchandise, or (ii) the purchase of Sports Merchandise.


1.27. "Term" has the meaning set forth in Section 12.1.


1.28. "Third Party Stores" means all of (a) those pages of Web sites (or portions thereof) operated by SportsLine for third parties (e.g., *** at any time during the Term comprising transactional platforms for the sale of Sports Merchandise, and (b) the subject third party's business-to-consumer auction Web sites, if any, that sell primarily Sports Merchandise. The Third Party Stores in existence as of the Effective Date are set forth in Exhibit E.


1.29. "Third Party Store User" means any person who accesses a Third Party Store.


1.30. "Transition Period" has the meaning set forth in Exhibit B.


1.31. "Web" means the Internet and any successor system.


1.32. "URL" means uniform resource locator.


4 CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSION.


2. DEVELOPMENT AND TRANSITION


2.1. Development and Transition. SportsLine and MVP will use commercially reasonable efforts to implement the transition plan set forth in Exhibit B. During the Transition Period, SportsLine will continue to operate the SportsLine Stores in a commercially reasonable manner, and MVP will reimburse SportsLine for all expenses directly attributable to SportsLine's operation of the SportsLine Stores (including personnel, cost of goods sold, shipping and handling, transactional expenses, and capital expenditures) during the Transition Period ("Transition Period Expenses"), provided that such expenses are in accordance with the budget approved by the parties, and non-budgeted expenses in excess of *** and all out-of-pocket advertising expenses and employee training expenses (regardless of amount) are approved in writing by MVP. With respect to the period commencing on January 1, 2000 and ending on March 31, 2000, MVP shall pay Transition Period Expenses in the amount of *** (which includes projected figures for March 2000 which will be adjusted post-closing to reflect actual operations and which adjustment shall be made to the next monthly invoice for Transition Period Expenses or the next Quarterly Guaranteed Payment, whichever occurs first), according to the statement attached hereto as Appendix B-1 and which is due and payable upon execution of this Agreement. SportsLine will invoice MVP for Transition Period Expenses on a monthly basis for the remainder of the Transition Period in a manner consistent with Appendix B-1, and MVP shall pay such invoices within thirty (30) days of receipt of invoice. At MVP's request, SportsLine will provide MVP a reasonably detailed report setting forth the following information for the Transition Period (1)revenue from sales via the SportsLine Stores, and, as applicable, Third Party Stores and (2) Transition Period Expenses.


2.2. Transition of SportsLine Employees. SportsLine will offer incentives to all of its employees currently affiliated with the SportsLine Stores to work until *** to assist in the Transition Period. MVP will make offers to hire all reasonably qualified (as determined by MVP in its sole discretion) SportsLine merchandising staff and customer service personnel, and will provide those hired ***. Toward that end, SportsLine will provide MVP with a list of eligible employees and will generally assist MVP in hiring such employees. MVP will interview all eligible employees at least three (3) weeks prior to the end of the Transition Period based upon work performed during the Transition Period. MVP will reimburse SportsLine for any and all compensation and benefits paid in the ordinary course of business for all SportsLine employees working (whether full-time or part-time) in connection with the SportsLine Stores or Third Party Stores during the Transition Period, regardless of whether any or all of such employees are eventually hired by MVP. Subsequent to the Transition Period, SportsLine will be solely responsible for all expenses, costs, and liabilities associated with any SportsLine employee working in connection with the SportsLine Stores and Third Party Stores. ***


3. OPERATION


3.1. Operation. Upon conclusion of the Transition Period, and as further provided in this Agreement, MVP will assume responsibility, at its own expense, for the design, hosting, operation and ongoing maintenance of the SportsLine Stores and Third Party Stores, including the following:


5 CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSION.


(a) Design. MVP will be responsible for design of the
SportsLine Stores and each Third Party Store and selection and
placement of content therein (including branding, and links to other
pages of the SportsLine Web Site, SportsLine Stores, Third Party
Stores, other Web sites owned or operated by SportsLine or its
Affiliates, and, subject to Sections 4.1(d) and 7.6, MVP Web Sites) and
advertising inventory (if any, and, in all cases, subject to Section
6.10(b)), in the SportsLine Stores, which ad copy shall be subject to
SportsLine's then-current generally applicable advertising guidelines
as disclosed to MVP in writing, and as amended from time to time by
SportsLine (provided that MVP receives prior written notice of such
amendments), and, with respect to Third Party Stores, further subject
to any existing applicable requirements of third-party agreements
between SportsLine and third parties, provided that MVP is informed of
such requirements. MVP shall consult with SportsLine with respect to
development and operation of the SportsLine Stores and Third Party
Stores, including advice on how to best drive traffic and effectively
enhance the customer experience within all SportsLine Stores and Third
Party Stores. *** (or the applicable third party, in the case of Third
Party Stores for which the applicable third party has reserved or been
granted a right of approval pursuant to its agreement with SportsLine)
will have final approval over the user interface, graphical look and
feel, design, navigation, and functionality of the SportsLine Stores
and Third Party Stores. *** will not unreasonably withhold or delay
such approval.


(b) Terms of Service. MVP will be responsible for creation and
administration of terms of service policies applicable to the
SportsLine Stores and Third Party Stores, subject to SportsLine's (or,
in the case of Third Party Stores for which the applicable third party
has reserved the right of final approval in its agreement with
SportsLine, the third party's) prior review and approval, which
approval will not be unreasonably withheld, and, with respect to Third
Party Stores, further subject to any existing applicable requirements
of third-party agreements between SportsLine and third parties,
provided that MVP is informed of such requirements.


(c) Product Procurement. Subject to SportsLine's existing
contractual obligations to third parties of which MVP has received
notice from SportsLine, MVP will make available through the SportsLine
Stores (i) the complete product lines of Sports Merchandise it carries
on the MVP Web Sites subject to (x) any approvals of Manufacturers or
other third parties required to sell certain Sports Merchandise on the
SportsLine Stores (which approvals MVP will use commercially reasonable
efforts to obtain, it being understood that the approval of any third
party may be withheld by the applicable third party) and (y) any third
party agreements applicable to MVP Web Sites other than the MVP
Proprietary Web Sites, which restrict the distribution of specific
items of Sports Merchandise outside of the specific MVP Web Site for
which it was sourced (e.g., *** logoed merchandise on a *** co-branded
MVP Web Site), and (ii) any *** SportsLine may request from time to
time, subject to this Section 3.1(c) and Section 6.2. Product lines to
be carried on Third Party Stores shall be subject to the terms and
conditions of the agreement governing the applicable Third Party Store.
MVP and SportsLine will consult with each other to determine demand
forecasts for the SportsLine Stores and Third Party Stores prior to key
buying periods to assist MVP to purchase or make other arrangements to


6 CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSION.


obtain inventory to meet such demand forecasts, and MVP will use
commercially reasonable efforts to purchase additional products to meet
actual demand in excess of such projections.


(d) Order Processing; Customer Service. MVP will be
responsible for order processing and customer service for the
SportsLine Stores and the Third Party Stores as follows: (i) fulfilling
SportsLine customer orders (pick, pack and ship) upon receipt of such
orders electronically from the SportsLine Stores or Third Party Stores,
(ii) handling returns in a manner consistent with MVP's generally
applicable operational standards, (iii) operating a call center and
sufficient dedicated toll-free telephone numbers to be answered by MVP
personnel (or the personnel of a third party handling customer service
on behalf of MVP) to provide telephone and e-mail customer service for
the SportsLine Stores and applicable Third Party Stores in accordance
with the service levels set forth in Appendix C-1. ***. SportsLine
shall have the right to *** from time to time to assess and improve ***
and *** for the SportsLine Stores and the Third Party Stores, and MVP
will consider in good faith the results of such ***.


(e) Fulfillment. MVP will be responsible for distribution
center and other fulfillment capabilities and costs as described in
Exhibit C. MVP will offer a reasonable range of shipping options and
*** for ***, and will ensure that such charges are commercially
reasonable shipping rates consistent with industry standards. *** in
connection with sales via the SportsLine Stores will be *** in a manner
mutually determined by the parties, and labeling and invoices in
connection with sales via Third Party Stores shall be as mutually
agreed upon between MVP and the applicable third party. Notwithstanding
the foregoing, with respect to the sale of products via the SportsLine
Stores and fulfilled by *** in connection with such sales shall be
branded with the SportsLine brand to the extent practicable.


(f) Credit Card Processing. MVP will be responsible for all
credit card processing, clearance, returns, and charge-backs. In
particular, MVP, at its sole expense, will: (i) provide a secure
connection to a reputable credit card clearing organization of its
choosing for the purpose of authorizing, charging and crediting
customers for auction sales; (ii) be exclusively responsible, at its
sole expense, for all merchant account costs associated with such
service provider including processing fees and development fees
associated with setting up a business relationship; (iii) use *** (and
update the same to keep pace with changes to industry practices) to
create a secure environment for the transmission, receipt and storage
of all customer billing information, and (iv) maintain separate
merchant account identification numbers to permit each of the Third
Party Stores to be identified on a customer's credit card statement.


(g) Technology Infrastructure. MVP will:


(i) create, maintain and update all aspects of
systems and server infrastructure and
hosting, operating and updating the
SportsLine Stores and each Third Party Store
on MVP's own servers, it being understood
that the SportsLine Stores will be hosted
under the *** brand and primary URL ***


7 CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSION.


except as otherwise approved in advance and
in writing by SportsLine, and the Third
Party Stores shall be hosted under brands
and primary URLs as specified in the
agreement governing the applicable Third
Party Store;


(ii) integrate all elements of electronic
retailing (including online shopping cart
capacity, order and credit card processing,
"wallet" technology, and product and
inventory maintenance) necessary to publish
and operate the SportsLine Stores and the
Third Party Stores on a fully secure and
integrated basis consistent, at a minimum,
with *** (and update the same to keep pace
with changes to industry practices) and
SportsLine Existing Merchandise Agreements;


(iii) be solely responsible for all connectivity
and bandwidth costs and expenses associated
with the SportsLine Stores and the Third
Party Stores and coordinating logistics
necessary to ensure a real time inventory
interface between (A) the SportsLine Stores
or the Third Party Stores, as applicable,
and (B) MVP's back-end and distribution
center systems;


(iv) develop, maintain and update all application
programming interfaces (APIs) necessary to
integrate the SportsLine Stores and Third
Party Stores with *** systems to enable ***
marketing personnel to continue to promote
products offered for sale on the SportsLine
Stores and the Third Party Stores as
provided in Exhibit D;


(v) develop, maintain and update APIs necessary
to authenticate, on a real time basis,
authorization for *** to registered end
users of the *** Web Site and Web sites with
respect to which MVP is operating Third
Party Stores, and such API's will operate in
a manner such that registered end users will
not have to re-enter previously submitted
information.


(vi) monitor the performance and availability of
the SportsLine Stores and the Third
-- End of Preview --
Home| About Us| FAQ| Subscription | Contact Us |