Fill and Sign the Form Retail Internet Site Agreement

10.14 Form: Retail Internet Site Agreement Web Sales, Inc. (WSI) has developed a site on the World Wide Web portion of the Internet to serve as a Catalogue for retailers and whole- salers of products (the Site) and wishes to provide to participating Mer- chant XYZ (Merchant) access to the Site for the purpose of displaying its products on the World Wide Web (WWW) portion of the Internet, as well as related services, in consideration of the payments described herein; and WHEREAS, Merchant wishes to market displays on the Site and avail itself of the ability to provide customers with a hyperlink to a Mer- chant Site. NOW, THEREFORE, in consideration of the mutual covenants set forth herein, WSI and Merchant (collectively, the Parties) hereby agree as follows: 1. Participation on the Site Merchant agrees to complete the attached Participation Agreement (the Participation Agreement) and forward it to WSI. (The Participation Agreement and the Terms and Conditions set forth herein shall herein- after be referred to collectively as the Agreement.) Merchant shall attach to the Participation Agreement copies of Merchant's digital data- base intended for listing on the Site (the Merchant Listing), as well as any graphic images that are to accompany any Merchant Listing, and shall also indicate the Uniform Resource Locator which Merchant desires WSI to include under the "Order Here" icon, as a hotlink to Merchant's Site on the WWW. WSI's sole obligation hereunder will be to install the Merchant Listing on the Site as specified in the Participa- tion Agreement so that the Merchant Listing may be accessed through the WWW, provided, however, that WSI reserves the right to modify or delete any information or graphics supplied by Merchant or its suppliers in order to comply with current and future technical limitations and business requirements of the Site. 2. No Fulfillment Obligations WSI shall have no responsibility or obligations with respect to the fulfillment of goods or services ordered from the Site, and all fulfill- ment related tasks shall be performed on Merchant's Site. 3. Merchant Listing Design Upon delivery to WSI of the initial payment called for in the Partici- pation Agreement (the "Initial Payment") accompanied by text and images which the Merchant wishes to include in a Merchant Listing, WSI will transmit to Merchant for Merchant's approval a sample Merchant Listing (the "Sample Listing"). Upon Merchant's written approval of Sample Listing, WSI will complete the corresponding Merchant Listing and install same on the Site. If Merchant fails to approve said Sample Listing as described in this paragraph within fifteen (15) days from trans- mittal thereof to Merchant, then WSI may terminate this Agreement and retain the Initial Payment without further obligation to Merchant. 4. Fees In exchange for WSI installing and maintaining any Merchant Listing (collectively, the "Services"), Merchant agrees to pay to WSI the fees set forth on the Participation Agreement according to the applicable payment schedule set forth on the Participation Agreement. Any sum due WSI hereunder for which a time for payment is not otherwise specified will be due and payable within forty-five (45) days after the due date of an invoice therefor from WSI. 5. Limited Warranty WSI warrants that the services will be rendered in a competent, pro- fessional manner. WSI does not warrant and specifically disclaims any representations that the site, the services or the Merchant listing will meet Merchant's requirements or that their use will be uninterrupted or error- free. Nothing contained herein shall be construed to mean that WSI is responsible in any way for the contents of any Merchant listing. Merchant is entirely responsible for such contents and all obligations with respect to Merchant's customers or potential customers. Merchant agrees that it shall include any and all proprietary notices of third parties in materials supplied to WSI for a merchant listing. Except as expressly set forth in this paragraph, WSI disclaims all other express warranties and all warran- ties, duties and obligations implied in law, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose. WSI's limited warranty set forth herein is in lieu of all liabilities or obli- gations of WSI for damages arising out of or in connection with the site, the services and the Merchant listing. 6. Limitation of Liability WSI will not be responsible to Merchant or any third parties under any circumstances for any indirect, incidental, consequential, special, punitive or exemplary damage or losses which Merchant may incur in connection with the services or the Merchant listing or otherwise regardless of the type of claim or the nature of the cause of action, even if WSI has been advised of the possibility of such damage or loss. In no event shall WSI's liability for direct damages incurred in any six-month term for any reason and upon any cause of action arising from or relat- ing to this agreement or the subject matter hereof exceed the fees paid to WSI by Merchant hereunder in said one-year term in which the dam- ages are incurred. 7. Confidentiality WSI covenants and agrees that it will not disclose the identities or addresses of persons who register with the Site to any third party, including, without limitation, to any other merchant, or use information of Merchant for WSI's own purposes, provided, however, that WSI reserves the right to disclose general information regarding numbers of hits and demographics of persons accessing the Site or portion thereof. 8. Proprietary Rights; Indemnification Merchant agrees and acknowledges that WSI and its suppliers own all rights, title and interest in and to the Site, subject solely to Mer- chant's rights in and to the information and content supplied to WSI by Merchant hereunder. Nothing in this Agreement or otherwise shall be construed to convey to Merchant any interest whatsoever in the Site, including, without limitation, any HTML or JAVA programs developed hereunder. Merchant represents and warrants to WSI that Merchant owns or otherwise has the right to convey to WSI the information and content provided to WSI and that such information and content does not infringe intellectual property rights of any third party. Merchant repre- sents and warrants that it has obtained, and currently has, any and all grants of rights from third parties which may be required to display text, graphics or other materials in a Merchant Listing as specified by Mer- chant. Merchant represents and warrants that it has set forth or described in the Participation Agreement any and all requirements of Merchant's suppliers, if any, with respect to content and form of materi- als to be used in any Merchant Listing including, without limitation, any requirements with respect to intellectual property rights and/or notices. WSI reserves the right not to exhibit on the Site any image or text for which WSI determines inadequate information has been provided. Merchant agrees to defend and indemnify and hold harmless WSI and its owners, proprietors, officers, shareholders, directors, employees, affiliates and subsidiaries from and against any and all claims, proceedings, dam- ages, injuries, liability, losses, costs and expenses (including, without lim- itation, reasonable attorneys' fees) arising out of or relating to any acts by Merchant undertaken in connection with the Site, including, without limi- tation, those arising out of or related to breach of any Merchant warranty, or any Merchant Listing, or information or content which Merchant sup- plies to WSI hereunder. Merchant hereby grants to WSI a non-exclusive, perpetual, irrevocable license to incorporate the information and content provided by Merchant to WSI into the Site and other promotional materi- als in any media now known or hereafter to become known. 9. Term and Termination The initial term of this Agreement shall run through and including six (6) months from the date of the initial Participation Agreement (the Initial Term). Thereafter, this Agreement and the Services provided hereunder shall be automatically renewed for a period of six (6) months (individu- ally, a Renewal Period) without further notice unless the Agreement is ter- minated as set forth herein. Notwithstanding anything to the contrary herein, WSI may terminate the Agreement at any time and for any reason by notifying Merchant of such termination, and such termination will take effect immediately. In the event WSI terminates this Agreement prior to the expiration of the Initial Term or the Renewal Period for any reason other than a breach of the Agreement by Merchant, then WSI shall refund to Merchant a pro rata share of the fees paid by Merchant for the Services for such Initial Term or Renewal Period. During any Renewal Period, Merchant may terminate this Agreement by delivering written notice of such termination to WSI at least fifteen (15) days prior to the expiration of such Renewal Period, in which case the Agreement shall automatically terminate at the end of the then-current Renewal Period. During the Initial Term and any Renewal Period, Merchant agrees that WSI will be Mer- chant's sole and exclusive Internet marketing agent, provided that nothing in this Agreement shall be construed as preventing Merchant from estab- lishing its own independent "home page" on the WWW. 10. Miscellaneous This Agreement constitutes the entire agreement between WSI and Merchant with respect to the Services. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to conflicts of laws provisions. Sole and exclusive juris- diction for any action or proceeding arising out of or related to this Agreement shall be an appropriate state or federal court located in the City of New York, County of New York. If a court of competent juris- diction finds any provision of this Agreement, or portion thereof, to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to effect the intent of the Agreement, and the remain- der of this Agreement shall continue in full force and effect. WSI PARTICIPATION AGREEMENT This AGREEMENT, including, without limitation, the attached Terms and Conditions (collectively, Agreement) is made and entered into by and between Web Services, Inc. (WSI), with an address at 100 East 10th Street, New York, New York 10010 (WSI) and the client identified below (Client). Client: __________________ Address: _____________________ City: ____________________ State: ________________________ Zip: _____________________ Contact: ______________________ Phone: ___________________ Fax: _________________________ 1. Schedule of fees to be paid quarterly, in advance, unless otherwise invoiced, with initial quarter's fees due upon execution of Agreement. If two quarters are paid in advance, a reduction of 20% for such two quarters will apply. A. Initiation Fee: $225 B. Monthly Listing Fee: Total Number of Listings Total Monthly Charge0-100 $25 100-500 $75 500-750 $125 750-1500 $175 1500-2000 $175 2000-2500 $75 2500+ $25 C. One-time Graphical Image Placement Fee: $25 per image D. Listing Revision/Removal Fee: $________________ 2. Please attach text and/or graphical images as you wish them to appear in your listing on the Site. 3. Additional Instructions: CLIENT HAS READ AND AGREES TO ALL OF THE TERMS AND CONDITIONS ON THE ATTACHED PAGES. THIS AGREE- MENT SHALL BE EFFECTIVE WHEN EXECUTED BY AUTHO- RIZED REPRESENTATIVES OF CLIENT AND WSI. WSI MERCHANT By:_______________________ By:_______________________ (Signature) (Signature) Name:_____________________Name:____________________ Title:______________________ Title:_____________________ Date: ______________________ Date: _____________________