SOFTWARE LICENSE AND SERVICS AGREEMENT by jennyyingdi

VIEWS: 5 PAGES: 13

									                                     VERTICALNET LLC

                     GENERAL TERMS AND CONDITIONS (August 2001 V.2)

                                        DEFINITIONS

The capitalized terms used in this document have the meanings set forth below.

“Advertising Product” means sponsorship or banner advertisements, electronic newsletters,
career postings, bidline products/services and any other promotional items displayed on a
VerticalNet Marketplace to the extent set forth in the applicable Order Details.

“Business Day” means Monday through Friday, excluding VerticalNet recognized holidays.

“Content” means all text, pictures, sound, graphics, video and other data, information and
materials provided by Company (other than any such materials supplied to Company by
VerticalNet) for use in conjunction with the VerticalNet Products/Services.

“Deliverables” means deliverables provided as part of Professional Services as defined in the
applicable Order Details and/or Statement of Work.

“Documentation” means the Software User Guide and Software Configuration Guide
(whether in electronic form or hard copy) supplied by VerticalNet with the Software.

“Force Majeure Event” means any act of God or other cause beyond the reasonable control
of the party asserting force majeure as a reason for non-performance.

“Hosting Services” means the hosting services provided to Company pursuant to this
Agreement as set forth in the Hosting Of Software Subsection of this Agreement.

“Impression” means either: a single ad view with respect to banner ads; or a single
subscriber with respect to Newsletter ads.

“Link” means a bar, button, tout, listing or gateway that contains a Party's Proprietary
Features and connects from one page of a website to another page and from one website to
another website.

"Launch Date" means the date a VerticalNet Product/Service set forth in the Order Details is
generally available for display on a Marketplace and/or accessible for use by the Company in
accordance with the applicable Documentation.

“Marketplace” means a VerticalNet Marketplace, Company’s website, or any other website
owned and/or operated by a third party.

“Newsletter” means a periodic e-mail sent to newsletter subscribers of one or more
VerticalNet Marketplaces and to VerticalNet clients, which e-mail contains Link.




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“Nonconformance” means a reproducible programming error in the Software attributable to
VerticalNet that results in the failure of the Software to comply substantially with the
Specifications.

“Order Details” means the specific Company information and the list of VerticalNet
Products/Services ordered by Company, the corresponding Fees and other pertinent details
set forth in this Agreement and in each order for any VerticalNet Product/Service executed by
the parties which references, and is governed by, this Agreement. Each Order Details
document shall constitute a separate and independent contractual obligation from any other
Order Details document.

“Proprietary Features” means any name, trademark, service mark, trade name, domain
name, navigational element, copyright, or logo.

“Professional Services” means the consulting or technical services VerticalNet provides
under this Agreement pursuant to the Order Details and/or any Professional Services Schedule
and Statement of Work.

“Response” means that VerticalNet will use reasonable efforts to provide Customer with
status updates with respect to efforts to correct Nonconformances reported by Customer or
answer questions concerning the Software posed by Customer.

“Software” means the software programs and any Updates therefor in object code format
resident and hosted on VerticalNet’s equipment and made available to Company by
VerticalNet as listed in the applicable Order Details and pursuant to this Agreement.
Software is made available to Company only upon payment of all applicable license fees set
forth in the relevant Order Details.

“Specifications” means the written description of performance                and   operational
characteristics of the Software contained in the Documentation.

“Statement of Work” means a written document executed by the parties that expressly
references this PSA that shall set forth the scope of Professional Services, the anticipated
schedule, Deliverables (if any) and fee structure applicable to such Professional Services.

“Support Services” means the maintenance and support services described in the Support
Services Subsection of and a Support Schedule to this Agreement, as amended from time to
time to reflect VerticalNet’s then-current maintenance and support services policies.

“Update” means (a) subsequent releases of the Software that (i) add new features,
functionality, and/or improved performance, (ii) operate on new or other databases,
operating systems, or client or server platforms, or (iii) add new foreign language
capabilities; (b) bug or Nonconformance fixes, patches, workarounds, and maintenance
releases; (c) new point releases, including those denoted by a change to the right of the first
and second decimal point (e.g. v. 3.0.0 to 3.1.1), and (d) new major version releases,
regardless of the version name or number, but including those denoted by (I) a change to the
left of the first decimal point (e.g., v. 5.0.0 to 6.0.0) and/or (ii) the addition of a date
designation or a change in an existing designation (e.g. v2001 to v2002); provided, however
that Updates shall not include new or separate products which VerticalNet offers only for an




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additional fee to its customers generally, including those customers purchasing Support
Services.

“User” means a single end user of the Software who accesses and uses the Software on a
personal computer or work-station.

“VerticalNet Marketplace” means a website wholly-owned by and operated by VerticalNet.

"VerticalNet Product/Service" means a product or service purchased by Company as set forth
in the Order Details.

“Web Presence” means the web pages located at the Marketplaces set forth in the Order
Details and created by use of the Software and incorporation of the Content.


                                        SECTION ONE

   SOFTWARE AND MARKETPLACE ACCESS LICENSES, HOSTING, SUPPORT SERVICES, AND
          PROFESSIONAL SERVICES DESCRIPTIONS, TERMS, AND CONDITIONS

INTRODUCTION

       The provisions of this Section One, along with those of Section Three, entitled “Terms
and Conditions Pertaining To All Products And Services,” apply to Software and Marketplace
licenses, Hosting, Support Services and Professional Services.

1.1    LICENSES

        1.1.1 Software Rights. Subject to the terms of this Agreement, VerticalNet grants
to Company a personal, non-exclusive, non-transferable license, beginning on the applicable
Launch Date and continuing for the term set forth in the Order Details, to (i) access and use
the Software (such access to be gained via a web browser through a computer connected to
the internet) solely for the purposes described in this Agreement and in accordance with the
Documentation; (ii) use the Documentation solely in connection with Company’s authorized
use of the Software; and (iii) make a reasonable number of copies of the Documentation only
for the use specified under this Agreement, provided that all titles, trademarks, and
copyright and restricted rights notices are reproduced in such copies. Company shall be
responsible at its expense for obtaining all hardware, software, telecommunications line and
services, internet access and any other equipment or service necessary for Company to access
and use the Software. Company agrees to be bound by any other terms provided by
VerticalNet regarding Software.

       1.1.2 Marketplace Access License. Subject to the terms of this Agreement,
VerticalNet grants to Company a personal, non-exclusive, non-transferable license, beginning
on the applicable Launch Date and continuing for the term set forth in the Order Details, to
display a Web Presence on the Marketplaces set forth in the Order Details (“Marketplace
Access License”), subject to the applicable Marketplace’s terms of site use, privacy policies
and any other terms and rules imposed by the owners and operators of such internet websites
or otherwise applicable to such websites.




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        1.1.3 Restrictions. Company shall not directly or indirectly (i) download, use or
otherwise copy all or any portion of the Software or Documentation, except as stated in this
Agreement; (ii) cause or permit the reverse engineering, modification, disassembly or
decompilation of the Software or any portion thereof; (iii) sublicense, rent, loan, lease,
transfer, grant access to or otherwise distribute the Software to any other person or entity; or
(iv) use the Software or Documentation to provide services to third parties in a time-sharing,
service bureau or application service provider arrangement.

        1.1.4 Existing Storefronts and E-Commerce Centers. With respect to Company’s
existing Storefronts and E-Commerce Centers (if any) obtained under other VerticalNet
contracts, for the remainder of their respective terms under such contracts, VerticalNet will
integrate each such Storefront and E-Commerce Center into the Software under this
Agreement and grants Company a Marketplace Access License hereunder. In the event of any
conflict between any of such other contracts and this Agreement, the terms of this
Agreement will prevail.

1.2    HOSTING OF SOFTWARE. For the period beginning on the applicable Web Presence
Launch Date and continuing for the applicable term, VerticalNet shall host on its equipment
the Software, any Web Presence, and Company’s Content (“Hosting Services”). Within thirty
(30) days after the Effective Date, Company shall deliver to VerticalNet, in format specified
by VerticalNet, all Content that Company wants VerticalNet to initially incorporate in the
Web Presence.

1.3    SUPPORT SERVICES.

        1.3.1 If Company has ordered Support Services under the applicable order,
VerticalNet shall provide the Support Services described below for the time period described
in the Order Details and pursuant to this Section.

        1.3.2 Upon reasonable notice, VerticalNet reserves the right to modify the terms and
conditions of Support Services, provided that any such modification will not substantially
diminish the level of Support Services that Company is then currently receiving. Except as
otherwise provided herein, the Support Services do not apply to or include: (i) use or
maintenance of Software not in accordance with VerticalNet’s Specifications, instructions, or
the terms of this Agreement; (ii) support required as a result of database errors, Content or
other inputs; (iii) support required as a result of modifications to the Software other than
those made by VerticalNet; (iv) user education and training, except as described herein; (v)
correction of or assistance regarding problems caused by operator errors, including but not
limited to the entry of incorrect data and the maintenance of inadequate back-up copies and
improper procedures; (vi) hardware problems experienced by Company; or (vii) correction of
errors attributable to software other than the Software.

       1.3.3 From time to time, VerticalNet will provide to Company Updates to the
Software that are commercially released by VerticalNet during the term of the applicable
Support Services. VerticalNet shall determine, in its sole discretion, when Updates shall be
made available to Company, provided that any such Update shall be made available to
Company no later than thirty (30) days following its general commercial release.

       1.3.4 Support Services Description.




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               Company may change, add, modify, edit, and delete content in its Web
               Presence using the administrator function of the Software. Company also will
               have the capability to contact a VerticalNet customer account representative
               via email, if necessary, for assistance in using the Software.

               The VerticalNet Client Services group will be available to Company by email,
               from 8:00 AM to 6:00 PM Eastern time, each Business Day, to provide support
               for technical issues, including answering questions regarding functions and
               features of the Software and directing information concerning technical
               problems to the appropriate VerticalNet resource for resolution and will
               provide a Response within a commercially reasonable time. VerticalNet shall
               use reasonable efforts to correct Nonconformances reported by Customer
               during the Support Services term as soon as reasonably possible after receipt of
               notice of any Nonconformance. Information on changes and updates to
               VerticalNet Products/Services will be provided to the Company in newsletter
               format.

1.4     PROFESSIONAL SERVICES. VerticalNet will provide the Professional Services described
in the Order Details and/or in any Professional Services Schedule and Statement of Work.
Company shall accept Deliverables which conform to the requirements of the Order Details
and/or the Professional Services Schedule. Company will promptly give VerticalNet written
notification of any non-conformance of the Deliverables with such requirements
(“Discrepancy”), and VerticalNet shall have a reasonable period of time, based on the
severity and complexity of the Discrepancy, to correct the Discrepancy. Failure by Company
to provide notice of a Discrepancy to VerticalNet within seven (7) days after delivery of a
Deliverable shall be deemed acceptance of such Deliverable. If Company uses the Deliverable
for commercial purposes, the Deliverable shall be deemed accepted by the Company.


                                        SECTION TWO

              ADVERTISING PRODUCT DESCRIPTIONS, TERMS, AND CONDITIONS

INTRODUCTION

      The provisions of this Section Two, along with those of Section Three, entitled “Terms
and Conditions Pertaining To All Products And Services,” apply to Advertising Products.

2.1     ADVERTISING PRODUCTS. Upon the Launch Date and for the time period or the
number of Impressions, as applicable, set forth on the Order Details for the applicable
Advertising Product, VerticalNet shall display the Advertising Product in the applicable
Marketplaces, Marketplace subscriber Newsletters, and selected client Newsletters. Company
shall furnish VerticalNet with Content to be incorporated into the advertisement no later than
twenty (20) days after the Effective Date for use by VerticalNet under this Agreement.

2.2. ADVERTISING PRODUCTS SPECIFICATIONS AND DESCRIPTIONS. Advertising Products
will conform to the following specifications and descriptions. Ad sizes are stated in pixels and
are industry standard as set by the Internet Advertising Bureau.




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       2.2.1 Banner Advertising Products:

              Banner Ad—Full Banner: Two 468x60 Full Banners: one at the top of the page
and the other a mirror image that is placed at the bottom of the page. These two identical
banners count as one impression.

               Banner Ad—Skyscraper: One 160x600 Skyscraper that will be on the right side
of those selected pages where the UI is flexible enough to allow it to fit.

              Banner Ad—Left Side Banner: A 120x240 Banner that is essentially a “short
skyscraper” which will be placed on the left side of the page, below the fold, just beneath
the navigation area.

       2.2.2 Newsletter Advertising Products:

               Descriptions.

                       Newsletter ads are of the following types: (a) multiple advertisers per
               Newsletter, with a maximum of three (3) ads per Newsletter; (b) “Exclusive
               Sponsorship”, in which the Company purchases all three Newsletter ad spaces
               described below in the section entitled “Formats”; except for Featured
               Company placement ads, no other ads will be sold for that Newsletter; and (c)
               “Featured Company” placement. Featured Company placement is available
               only to VerticalNet supplier customers having a Web Presence, E-Commerce
               Center, or Storefront on a VerticalNet Marketplace or having obtained a
               Marketplace Manager or other Software license from VerticalNet.

               Formats.

                       All Newsletters will be sent out in three formats: text, HTML, and AOL
               format. The HTML format Newsletters will have three ad spaces as follows: (a)
               one 468x60 Full Banner at the top of the page; (b) one 160x600 Skyscraper on
               the right side of the page; and (c) one 468x60 Full Banner at the bottom of the
               page. The text and AOL format Newsletters will have three ad spaces, each of
               which consists of 200 characters plus a URL, as follows: (a) one near the top of
               the page immediately following the introduction; (b) one in the middle of the
               page between featured articles and featured products; and (c) one near the
               bottom of the page just below featured products and above any other
               VerticalNet house announcements.

       2.2.3 Positioning, Display, and Use of Ads. Except as expressly provided in this
Agreement, all banner ads are run-of-site ads unless specific web site pages are identified in
the Order Details, and the specific positioning of the Advertising Products will be as
determined by VerticalNet in its editorial discretion. Company grants to VerticalNet the right
and license to: (i) display and transmit the Advertising Products through the designated
Marketplaces or throughout all VerticalNet sites as specified in the Order Details; and (ii) to
provide to its web site users access to and use of the Advertising Products together with any
content or materials linked to the Advertising Products.




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        2.2.4 Failure to Provide Required Content or Materials. VerticalNet may alter the
number of Impressions, shorten the quantity or term, or delay the start date of any
Advertising Products if Content and/or other advertising materials required to produce and
display the Advertising Product are not provided in a timely manner, and Company shall not
be entitled to any refund or other fee adjustment for delays caused by Company 's failure to
deliver such materials.

        2.2.5 VerticalNet’s Advertising Product Standards. In the event that the Content or
any web site linked to the Content fails to comply with VerticalNet's applicable technical
standards, VerticalNet may alter the number of Impressions or shorten the quantity or term of
any Advertising Products, and if Company fails to cure such non-compliance within five (5)
business days after notice from VerticalNet to do so, VerticalNet may terminate the
applicable order for the subject Advertising Product. VerticalNet may discontinue Links to
the Content to the extent such Content, in VerticalNet 's reasonable determination, may
adversely affect the operation of any VerticalNet web site. VerticalNet reserves the right to
discontinue and terminate the order for any Advertising Product in the event that VerticalNet
reasonably determines that further display of the Advertising Product will expose VerticalNet
to liability or other adverse consequences.

       2.2.6 Ad Impressions. In the event that the number of Impressions for an
Advertising Product specified in the Order Details are reached prior to the End Date or the
completion of the applicable term under the Order Details, VerticalNet may discontinue the
said Advertising Product. VerticalNet makes no commitment with respect to “click-
throughs.” To the extent that there is a shortfall in the number of Impressions as of the said
End Date or term completion, as Company’s sole remedy and VerticalNet’s entire liability,
VerticalNet will provide make-good Impressions through substantially similar ad placements.
VerticalNet may alter an Advertising Product Start Date, End Date, or term as reasonably
required by trafficking or other operational requirements. In such event, VerticalNet will
provide to Company commercially reasonable substitute ad dates.

        2.2.7 Company’s Customer and Transaction Responsibilities. Company is solely
responsible for all customer service, including without limitation, order processing, billing,
fulfillment, and other customer matters associated with any products or services offered, sold
or licensed by Company. VerticalNet will have no obligations whatsoever with respect
thereto. Company is solely responsible to ensure that any contest, sweepstakes or similar
promotion conducted or promoted through the Advertising Products or Content complies with
all applicable federal, state and local laws and regulations.


                                       SECTION THREE

           TERMS AND CONDITIONS PERTAINING TO ALL PRODUCTS AND SERVICES

3.1    PAYMENT

        3.1.1 Fees. Company shall pay VerticalNet the fees in accordance with the payment
terms in the applicable Order Details. Overdue fees shall bear a late payment charge at the
lesser of one and one half percent (1.5%) per month or the maximum allowed under
applicable law. Company shall be responsible for all fees and expenses, including attorney’s
fees, incurred by VerticalNet in collecting the amounts owed under this Agreement.



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        3.1.2 Taxes. All fees under this Agreement are exclusive of applicable taxes, duties,
tariffs, levies and other similar charges (“Taxes”). Such Taxes shall appear as separate
charges on VerticalNet invoices, and Company shall pay such Taxes (excluding any taxes based
upon VerticalNet’s net income). In the event VerticalNet is subsequently assessed by any
governmental authority for having failed to collect any Taxes from Company, Company agrees
to pay such assessed amounts, including any associated interest or penalties, upon
VerticalNet’s written request.

3.2    TERM AND TERMINATION

       3.2.1. Renewal. With respect to the VerticalNet Products/Services set forth as
automatically renewable in the Order Details, a renewal term shall automatically commence
on the expiration of the then-current term unless either party gives the other party written
notice of its intention not to renew at least thirty (30) days prior to the expiration of the
then-current term. Each renewal term will be on the same terms and conditions as were
applicable during the immediately preceding term, except that on or before the first day of
each renewal term, Company shall be obligated to pay the then-current fees being quoted by
VerticalNet ("Rate Card Fees") for the VerticalNet Products/Services set forth as automatically
renewable in the Order Details. At least sixty (60) days prior to the expiration of the then-
current term, VerticalNet shall notify Company regarding the current Rate Card Fees.

        3.2.2 Term and Termination. This Agreement shall continue in force and effect
until the last day of the last term of a VerticalNet Product/Service to expire under this
Agreement, unless terminated under this Subsection. Upon prior written notice, either party
may terminate this Agreement if the other party becomes insolvent, ceases doing business in
the regular course, files a petition in bankruptcy or is subject to the filing of an involuntary
petition for bankruptcy which is not discharged within a period of sixty (60) days. Upon
prior written notice, either party may terminate this Agreement, or any Schedule to this
Agreement to which such breach relates, if the other party: (i) fails to cure a material breach
of any non-monetary term or condition of this Agreement within thirty (30) days of written
notice specifying such breach; or (ii) fails to cure a breach of any payment obligation under
this Agreement within fifteen (15) days of written notice specifying such monetary breach.

       3.2.3 Effect of Termination. Termination of this Agreement shall not relieve
Company’s obligation to pay all fees that are owed by Company under the terms of this
Agreement. The parties’ rights and obligations under: Subsections 1.1.3 (“Restrictions”); 3.1
(“Payment”); 3.2.3 (“Effect of Termination”); 3.3 (“Ownership and Licenses”); 3.4
(“Warranty”); 3.5 (“Indemnity”); 3.6 (“Confidentiality”); 3.7 (“Limitation of Liability”); and
3.8 (“General”) shall survive termination of this Agreement. Upon termination of this
Agreement, Company’s access to the Software will be terminated by VerticalNet and
VerticalNet shall cease hosting Company’s Web Presence and shall discontinue any applicable
Advertising Product.

3.3.   OWNERSHIP AND LICENSES

       3.3.1 VerticalNet and its licensors retain all their respective rights in the Software
not expressly granted to Company, and Company does not acquire any rights in the Software,
express or implied, except as specifically set forth herein. Title to the Software and any
modification thereto, including Company’s or User’s modifications, shall remain with



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VerticalNet or its licensors at all times. No Company’s or User’s modifications to the
Software shall affect VerticalNet’s or its licensor’s rights in the Software. Company agrees to
take all reasonable steps to protect the Software from unauthorized copying or use. Company
shall inform VerticalNet immediately of any actual or potential unauthorized access to, or use
of, the Software. Company acknowledges that the Software contains valuable proprietary
information of VerticalNet.

       3.3.2. VerticalNet acknowledges and agrees that all rights in the Content not
expressly granted to VerticalNet hereunder are and shall continue to be the sole and
exclusive property of Company or its third-party licensors.

       3.3.3. VerticalNet retains sole right and control over the programming and content of
VerticalNet Marketplaces. If VerticalNet redesigns the user interface of any VerticalNet
Marketplace, VerticalNet will display the VerticalNet Products/Services in a comparable place
and format. In the event that any particular Marketplace becomes unavailable, VerticalNet
will use commercially reasonable efforts to transfer any adversely affected VerticalNet
Product/Service to a substantially comparable Marketplace. VerticalNet reserves the right to
refuse to incorporate on and to remove from a Marketplace any Content that it determines, in
its sole discretion, to be in violation of any applicable warranty, representation, or
requirement under this Agreement, to be offensive, objectionable, or inappropriate, or in any
other way to possibly affect adversely any legal right of VerticalNet or the good name and
reputation of VerticalNet or any Marketplace.

       3.3.4. During the term of this Agreement, Company grants to VerticalNet a non-
exclusive, royalty-free, worldwide right and license to use, reproduce, display, and transmit
the Content solely on or in conjunction with the VerticalNet Products/Services, in accordance
with the terms of this Agreement.

3.4    WARRANTY

        3.4.1 VerticalNet warrants that, except as stated otherwise herein, for a period of
thirty (30) days from the applicable Launch Date, the Software as used within the scope of
this Agreement will be free from any Nonconformance. VerticalNet further warrants to
Company that its Support Services, Professional Services, Hosting Services, and Advertising
Products will be rendered consistent with generally accepted industry standards. Third-party
Software is provided on an “As Is” basis without warranty, except as offered by the third-
party licensor. VerticalNet makes no warranty with respect to conditions resulting from (i)
modifications not made by VerticalNet; (ii) misuse, neglect or accident; (iii) use not in
accordance with VerticalNet’s Specifications, operating instructions or the terms of this
Agreement; or (iv) database errors, Content or other inputs.


       3.4.2 Company acknowledges and agrees that the operation of the Marketplaces will
not always be uninterrupted and error-free and may be subject to temporary shutdowns due
to causes beyond VerticalNet’s reasonable control and scheduled or unscheduled
maintenance.

        3.4.3 Company represents and warrants that (a) Company has valid existing rights to
all Content and to all third party software and systems which it has authorized VerticalNet to
use in accordance with this Agreement, and (b) all Content Company displays or uses with the



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VerticalNet Products/Services, any content or materials linked to the Content, and any
information, materials or resources that Company otherwise provides to VerticalNet or posts
on the Marketplaces do not and will not: (i) contain any known viruses, worms or other
computer code the purpose of which is to disable or interrupt the operation of a computer
system or destroy, erase or otherwise harm any data, software or hardware; (ii) contain any
false, misleading, libelous or defamatory claims or statements; (iii) contain any material that
is obscene, pornographic or harmful to minors; (iv) constitute an invasion of the rights of
privacy or publicity of any third party; (v) violate any applicable laws, rules or regulations;
(vi) promote any product or service which is reasonably competitive with one or more of the
products or services offered by VerticalNet; or (vii) violate any VerticalNet generally
applicable advertising standards and practices, as such may be modified from time to time.

        3.4.4 Exclusive Remedies. For any breach by VerticalNet of its warranties under
this Agreement, Company’s exclusive remedy, and VerticalNet’s entire liability, shall be:
(i) in the case of any Nonconformance, to use reasonable efforts to correct the
Nonconformance, provided that Company notifies VerticalNet of the Nonconformance within
the warranty period; and (ii) in the case of Support Services, Professional Services, Hosting
Services, or Advertising Products, the correction of defective work so as to comply with
generally accepted industry standards, provided Company asserts any warranty claim within
ninety (90) days following the delivery of any such Support Services, Professional Services or
Hosting Services. If VerticalNet fails to provide any remedy described in this Exclusive
Remedies Subsection, as Company’s exclusive remedy and VerticalNet’s entire liability for
such failure, Company may terminate this Agreement and receive a refund of amounts paid
with respect to the Software or services which are the subject of such breach.

      3.4.5 Disclaimer. THE WARRANTIES SET FORTH IN THIS SUBSECTION ARE
EXCLUSIVE AND IN LIEU OF, AND EACH PARTY DISCLAIMS, ALL OTHER WARRANTIES,
WHETHER EXPRESS, STATUTORY OR IMPLIED, INCLUDING ANY WARRANTIES OF
MERCHANTABILITY, TITLE OR FITNESS FOR A PARTICULAR PURPOSE. VERTICALNET DOES
NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR
ERROR-FREE. VERTICALNET SPECIFICALLY DISCLAIMS ANY WARRANTY REGARDING ANY
BENEFIT COMPANY MIGHT OBTAIN FROM ANY ADVERTISING PRODUCT.

3.5    INDEMNITY

        3.5.1 By VerticalNet. VerticalNet will defend or, at its option, settle a claim
brought against Company by a third party (excluding affiliated entities of Company) (a) that a
VerticalNet Product/Service, as used within the scope of this Agreement, infringes a U.S.
copyright, issued patent, trademark or trade secret, except to the extent such infringement
is caused by the Content or by any software or other information or materials provided by
Company to VerticalNet for use in accordance with this Agreement, or (b) for personal injury
or tangible property damage directly caused by VerticalNet in connection with the Hosting
Services, Support Services, or Professional Services (“Company Claim”), and indemnify
Company against all damages and costs that are finally awarded by a court of competent
jurisdiction to unaffiliated third parties and against any reasonable expenses, including
attorneys’ fees, incurred in the defense and/or settlement of such Company Claims, provided
that: (i) Company timely notifies VerticalNet in writing of the Company Claim, such notice to
be no later than thirty (30) days after notice to Company of such Company Claim; (ii)
VerticalNet has sole control of the defense and all related settlement negotiations; and (iii)
Company provides VerticalNet with reasonable assistance, information and authority



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necessary to perform VerticalNet’s obligations under this Subsection. VerticalNet shall have
no liability for any Company Claim for infringement based on (i) use of a superseded or
altered release of Software if the infringement would have been avoided by the use of a
current unaltered release of the Software which VerticalNet provides to Company pursuant to
Support Services or without charge, or (ii) any combination of Software with materials not
provided by VerticalNet. If Software is held by a court of competent jurisdiction or believed
by VerticalNet to infringe or potentially infringe a third party’s rights, VerticalNet shall have
the option, at its expense, to (i) modify the Software to be non-infringing; or (ii) obtain for
Company a license to continue using the Software. If VerticalNet determines that it is not
commercially reasonable to perform either of the above options, then VerticalNet may
terminate the license for such Software and refund the license fees paid for the Software,
prorated as depreciated over the term of the applicable Software license on a straight-line
basis from the Launch Date of such Software.

        3.5.2 By Company. Company shall, at its expense and VerticalNet’s request, defend
and/or settle any third-party claim or action brought against VerticalNet, its affiliates, or
their respective directors, officers, employees, licensees, agents or subcontractors: (i) for the
infringement or misappropriation by the Content, or any software or other information or
materials provided by Company to VerticalNet for use in accordance with this Agreement, of
the copyright, patent or trade secret rights of such third party; (ii) relating to the Content or
any other information or materials posted through the VerticalNet Products/Services on the
internet by Company (a) containing any false, misleading, libelous or defamatory statements,
(b) containing any material that is obscene, pornographic or harmful to minors, or (c)
constituting an invasion of the rights of privacy or publicity of a third party; (iii) personal
injury or tangible property damage directly caused by Company; or (iv) relating to other
damage relating to the Company or Company’s business, resources or services (collectively,
“VerticalNet Claims”). Company will indemnify and hold harmless VerticalNet from and
against any costs, damages and fees payable to unaffiliated third parties in the defense
and/or settlement of the VerticalNet Claims, including the reasonable fees and expenses of
attorneys and other professionals, to the extent attributable to the VerticalNet Claims.

3.6     CONFIDENTIALITY.       “Confidential Information” shall consist of the Software,
Documentation, the terms and pricing under this Agreement, and all information clearly
identified by the discloser as confidential at the time of disclosure (and, in the case of
information disclosed orally, in a written memorandum summarizing such disclosure and sent
to the recipient within thirty (30) days of the date of disclosure). Confidential Information
shall not include information that: (i) is or becomes generally available in the public domain
through no act or omission of the recipient; (ii) was in the recipient’s lawful possession prior
to receipt from the discloser; (iii) is lawfully disclosed to the recipient by a third party
without restriction on disclosure; or (iv) is independently developed by the recipient as
evidenced by its written records. The parties agree to hold each other’s Confidential
Information in confidence and to not use or make copies of such Confidential Information for
any purpose except as required to exercise its rights or fulfill its obligations under this
Agreement. The parties agree, unless required by law, not to make each other’s Confidential
Information available in any form to any third party for any purpose, except that access to
and the use of Confidential Information may be provided to those third parties that: (i)
provide services to the recipient of Confidential Information; (ii) have a need to use and
access such Confidential Information in providing such services; and (iii) are bound by an
obligation of confidentiality at least as restrictive as the confidentiality obligations of this
Agreement. Each party agrees to take all reasonable steps required to ensure that



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Confidential Information is not disclosed or distributed by its employees, agents or
subcontractors in violation of the terms of this Agreement.

3.7    LIMITATION OF LIABILITY.

      3.7.1 IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT,
INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS
OF PROFITS, REVENUE, DATA OR USE, INCURRED BY THE OTHER PARTY OR ANY THIRD
PARTY, UNDER ANY THEORY OF LIABILITY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES. THIS PROVISION SHALL NOT BE DEEMED TO REDUCE
A PARTY’S LIABILITY UNDER ANY INDEMNIFICATION PROVISION OF THIS AGREEMENT.

       3.7.2 EXCEPT FOR OBLIGATIONS WITH RESPECT TO INDEMNIFICATION,
CONFIDENTIAL INFORMATION AND RESTRICTIONS UNDER THE SOFTWARE LICENSE GRANT
UNDER THIS AGREEMENT AND EXCEPT FOR COMPANY’S OBLIGATION TO PAY AMOUNTS DUE
FOR VERTICALNET PRODUCTS/SERVICES UNDER THIS AGREEMENT, NEITHER PARTY’S
LIABILITY HEREUNDER SHALL EXCEED THE AMOUNT PAID BY COMPANY UNDER THIS
AGREEMENT FOR THE VERTICALNET PRODUCTS/SERVICES WHICH ARE THE SUBJECT OF THE
CLAIM. THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS SET FORTH IN THIS
LIMITATION OF LIABILITY SUBSECTION ARE AN ESSENTIAL ELEMENT OF THIS AGREEMENT
BETWEEN THE PARTIES AND THAT THE PARTIES WOULD NOT HAVE ENTERED INTO THIS
AGREEMENT WITHOUT SUCH LIMITATIONS.

3.8    GENERAL

        3.8.1 This Agreement and all matters arising out of or relating to this Agreement
shall be governed by the laws of the Commonwealth of Pennsylvania without reference to
conflicts of laws principles. Any dispute, controversy or claim arising out of or relating to this
Agreement or to a breach thereof, including its interpretation, performance or termination,
shall be finally resolved by arbitration before a sole arbitrator knowledgeable in e-commerce.
The arbitration shall be conducted in accordance with the rules of the American Arbitration
Association, which shall administer the arbitration and act as appointing authority. The
arbitration, including the rendering of the award, shall take place in Philadelphia,
Pennsylvania.      The expense of the arbitration (including without limitation the award of
attorneys' fees to the prevailing Party) shall be paid as the arbitrator determines. The
decision of the arbitrator shall be final and binding upon the Parties, and judgment upon the
award may be entered in any court of record of competent jurisdiction. This provision shall
not be deemed to preclude a Party's right to obtain equitable relief from a court of
competent jurisdiction to protect its Confidential Information. Except for actions for
nonpayment or breach of VerticalNet’s proprietary rights, no action or proceeding, regardless
of form, arising out of this Agreement may be brought by either party more than two (2) years
after the cause of action has accrued.

       3.8.2 Except as may be required by applicable laws, rules or regulations, neither
party will originate any publicity, news release or other public announcement, written or
oral, whether to the public press or otherwise, concerning the relationship between the
parties or the transactions described in this Agreement without the prior written consent of
the other party, which consent shall not unreasonably be withheld or delayed.




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       3.8.3 Any notice under this Agreement will be in writing and delivered by personal
delivery, express courier, confirmed facsimile, confirmed email or certified or registered
mail, return receipt requested, and will be deemed given upon personal delivery, one day
after deposit with express courier, upon confirmation of receipt of facsimile or email or five
days after deposit in the mail. Notices sent to the Company will be sent to Company’s
designated representative at the address set forth in the Order Details. Notices sent to
VerticalNet shall be sent to General Counsel, 507 Prudential Road, Horsham, PA 19044 and
legal@verticalnet.com. Either party may change its address or its facsimile number for
purposes of this Subsection by giving the other party written notice of its new address or
facsimile number.

         3.8.4 Neither party may assign or otherwise transfer this Agreement, in whole or in
part, to any person or entity, except as part of a transfer of all or substantially all of the
assets of such party, without the other’s written consent, such consent not to be withheld or
delayed unreasonably; provided that the withholding of consent of assignment to a
competitor of the other party shall be deemed reasonable. If any provision of this Agreement
is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain
in full force. The waiver by either party of any default or breach of this Agreement shall not
constitute a waiver of any other or subsequent default or breach. This Agreement may be
executed in one or more counterparts, each of which shall be deemed an original and all of
which together shall constitute one and the same instrument. This Agreement shall become
binding when any one or more counterparts hereof, individually or taken together, bear the
signatures of both Parties. For the purposes hereof, a facsimile copy of this Agreement,
including the signature pages hereto, shall be deemed an original. Neither party shall be
liable to the other for any delay or failure to perform any obligation under this Agreement,
excluding payment obligations, if the delay or failure is due to a Force Majeure Event.

       3.8.5 This Agreement shall not be binding upon VerticalNet until Company completes
the requisite credit approval documentation and receives a credit approval and/or a credit
line. Any invoices related to this Agreement may be assigned by VerticalNet to any factor
which shall be entitled to collect amounts due under such invoices.

        3.8.6 VerticalNet Products/Services provided under this Agreement may be subject
to United States and other government export control laws and regulations related to the use,
disclosure, export, or re-export thereof. Customer assures that it will comply with all such
laws and regulations.

       3.8.7 This Agreement constitutes the complete agreement between the parties and
supersedes all prior or contemporaneous agreements or representations, written or oral,
concerning the subject matter of this Agreement. This Agreement may not be modified or
amended except in writing signed by a duly authorized representative of each party; no other
act, document, usage or custom shall be deemed to amend or modify this Agreement.




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