PlanetOnline.com
MERCHANT SERVICES AGREEMENT
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| This agreement by and between PlanetOnline.com, Inc. a
California Corporation ("Planet online") and you (‘MERCHANT”)
consist of the following Planet online’s terms and conditions (“Terms
and Conditions”): |
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| 1. |
TERM |
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1.1 |
This Agreement will take effect immediately and run for a period of
1 year unless terminated by either party before the end of the term pursuant
to Section 7. Thereafter, this Agreement shall automatically renew for
successive one-month terms until terminated by one party by providing
written notice before the end of the term to the other party of its desire
to terminate the Agreement. |
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| 2. |
COMMERCE |
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2.1 |
(a) |
Planet online Obligations. (i) Planet online hereby
appoints MERCHANT as a MERCHANT for the Planet online Network of North
American Web sites (the "Web Site") pursuant to the terms outlined
on Schedule A. |
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| (b) |
MERCHANT Obligations. (i) MERCHANT accepts appointment
as a MERCHANT for the Web Site on the terms outlined on Schedule A. |
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(Section 2.1(a) & (b) collectively the "MERCHANT
Relationship") |
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| 3. |
CREDIT AND BRANDING; OWNERSHIP |
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3.1 |
Promotion and Marketing. PlanetOnline.com and
MERCHANT will both use reasonable efforts to promote and market the existence
of the MERCHANT Relationship. MERCHANT may not, however, make any statement
(whether oral or in writing) in any external advertising, marketing or
promotional materials regarding the MERCHANT Relationship without the
prior written consent of Planet online which shall not be unreasonably
withheld, provided that any such materials that are substantially identical
to those previously approved by Planet online need not be re-submitted
for approval. |
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3.2 |
Rights of Planet online, MERCHANT acknowledges
that Planet online exclusively owns all intellectual property rights
related to the Web Site and the Mark as defined below or has been licensed
by third party providers for such rights and that MERCHANT gains no intellectual
property or other rights under this Agreement. All rights whether now
existing or which may hereafter come into existence, and which are not
expressly granted to MERCHANT herein, are expressly reserved to Planet online
, To the extent that any of Planet online’s intellectual
property rights may, by operation of law or otherwise, vest in MERCHANT,
MERCHANT will, at the request and expense of Planet online, irrevocably
assign to Planet online any such right, title or interest, at no cost. |
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3.3 |
Use of Planet online’S Marks. Planet online
grants MERCHANT a non exclusive, non transferable, royalty free
right to use the “Planet online” trademark (the “Mark” solely
on the Co-Branded Page, as defined below, for the term of this Agreement.
Except as provided in this Agreement, MERCHANT may not use Planet online’s
name or any of Planet online’s trademarks or service marks without
the prior written consent of Planet online, |
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3.4 |
Goodwill: MERCHANT recognizes the great value
of publicity and goodwill associated with the Web Site and acknowledges
that all trademarks and service marks pertaining thereto or used in connection
therewith, have acquired secondary meaning in the minds of the public
and MERCHANT agrees that such marks and Web Site and all rights and goodwill
attendant to them belong exclusively to Planet online and that all use
pursuant to this Agreement shall inure to the sole benefit of Planet online
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| 4. |
FEES |
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4.1 |
(a) |
The fees and payment terms for the MERCHANT Relationship
are outlined on Schedule A. |
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| (b) |
Unless otherwise specified on Schedule A, all revenues that are in
any way related to the Web Site belong exclusively to Planet online, |
| (c) |
Any fees due Planet online that are not paid pursuant to the terms
of this Agreement shall accrue, and MERCHANT shall pay, finance charges
of one and one half percent (1½ %) per month until paid by MERCHANT. |
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| 5. |
LIMITATION OF LIABILITY |
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5.1 |
Accuracy/Reliability. Although Planet online
makes reasonable efforts to ensure the accuracy and reliability of the
Web Site MERCHANT acknowledges that Planet online, its MERCHANTs, and
their respective officers, directors, employees, and third party providers
will not be held liable for any damages suffered or incurred by MERCHANT
or any third person arising out of: (a) any faults, interruptions or
delays of the Web Site, or (b) any inaccuracies, errors or omissions
on the Web Site. |
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5.2 |
Force Majeure. Neither party will be liable
for any failure to perform any obligation (other than payment obligations)
hereunder, or from any delay in the performance thereof, due to causes
beyond its reasonable control, including, but not limited to, acts of
God, public enemy, acts of government, failure of telecommunications,
fire or other casualty. If such circumstances prevent a party’s
performance under this Agreement for a period of one (1) month, then
either party may immediately terminate this Agreement by providing written
notice to the other party. |
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5.3 |
Warranties. Each party represents and warrants
to the other party that: (a) it has the full corporate right, power and
authority to enter into this Agreementand to perform
the acts required of it hereunder; (b) the execution of this Agreement
by such party, and the performance by such party of its obligations and
duties hereunder, do not and will not violate any agreement to which
such party is a party or by which it is bound; and (c) its promotional
materials or obligations under this Agreement will, to the best of its
knowledge, neither infringe any rights of any person or entity nor violate
any applicable law or regulation. |
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5.4 |
Exclusion of Warranties. EXCEPT AS EXPRESSLY
STATED IN THIS AGREEMENT, THERE ARE NO WARRANTIES, CONDITIONS, GUARANTEES
OR REPRESENTATIONS AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE
OR OTHER WARRANTIES, CONDITIONS, GUARANTIES OR REPRESENTATIONS, WHETHER
EXPRESS OR IMPLIED, IN LAW OR IN FACT, ORAL OR IN WRITING IN CONNECTION
WITH THE MERCHANT RELATIONSHIP. |
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5.5 |
Special Damages. Except for a Party's malicious
acts, under no circumstances will either party be liable for any indirect,
incidental, special or consequential damages, including lost profits,
with respect to its obligations under this Agreement, regardless of whether
such damages could have been foreseen by either party. |
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| 6. |
INDEMNIFICATION |
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6.1 |
Indemnification by Planet online will indemnify
and hold MERCHANT and its officers, directors and employees harmless
from and against any and all damages resulting from or arising out of
the Web Site provided that: (i) the relevant claim does not arise from
MERCHANT's services, intellectual property, negligence malicious acts,
or the Co-Branded Page; (ii) the relevant claim does not concern matters
that Planet online notified MERCHANT should not be used or should be
modified; or (iii) the relevant claim does not arise from any breach
of any covenant or agreement to be performed by MERCHANT hereunder. |
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6.2 |
Indemnification by MERCHANT. MERCHANT will
indemnify and hold Planet online and its MERCHANTs and their respective
officers, directors and employees harmless from and against any and all
damages resulting from or arising out of MERCHANT’s business or
services, use of MERCHANT's trademarks or intellectual property, negligence
or malicious acts, or any breach of any covenant or agreement to be performed
by MERCHANT hereunder. |
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6.3 |
Participation. The Indemnifying Party and
the Indemnified Party will cooperate, and cause their respective MERCHANTs
to cooperate, in the defense or prosecution of any third party claims,
any appellate level process, or assertions and any respective settlement
thereof. |
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| 7. |
TERMINATION |
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7.1 |
Grounds for Termination. In addition to
any other remedy available at law or in equity, either party may terminate
this Agreement immediately, without further obligation to the other party
in the event of:
(a) any breach of this Agreement by the other party that is not remedied within
ten (10) days’ notice of such breach in writing;
(b) the other party’s making an assignment for the benefit of its creditors,
the filing of a voluntary or involuntary petition under any bankruptcy or insolvency
law, or under the provisions of any law of like import in connection with the
other party, or the appointment of a trustee or receiver for the other party
or its property. |
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7.2 |
Specifically, Planet online reserves the right to sell or discontinue
publication of the Web Site at any time before, after or during the term
of this Agreement, which sale or discontinuance shall, at Planet online’s
sole option, be considered de facto termination of this Agreement, and
Planet online shall not be liable to MERCHANT for any damages as a result
of Planet online’s discontinuance or sale of the Web Site. |
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7.3 |
Obligations Upon Termination. Promptly upon
termination of this Agreement for any reason MERCHANT will cease using,
promoting or marketing itself as a MERCHANT of Planet online and will
immediately pay all outstanding amounts due to Planet online. |
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| 8. |
CONFIDENTIALITY |
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8.1 |
The parties agree to keep the financial and other terms of this Agreement,
but not the existence of this Agreement, strictly confidential and not
to disclose such information to any third party without the other party's
written consent, except as required by law. |
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| 9. |
GENERAL |
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9.1 |
Controlling Law. This Agreement will be
deemed to have been executed and delivered in the county of Los Angeles,
State of California, USA, and it will be governed by and construed in
accordance with the laws of California, USA. Any action or proceeding
in connection with this Agreement must be brought in the courts of the
county of Los Angeles, State of California, USA, and each of the parties
hereby consents to the personum jurisdiction of such courts. |
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9.2 |
Notices. All notices, requests and other
communications to any party hereunder will be in writing (including facsimile
transmission or similar writing) and will be given to such party at its
address or telecopy number set forth below or at such other address or
telecopy number as such party may hereafter specify for such purposes.
Each such notice, request or other communication will be effective (i)
if given by telecopy, when such telecopy is transmitted to the telecopy
number specified in this Section and confirmation of receipt is obtained
or (ii) if given by any other means, when received at the address specified
below.
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To: (Planet online) |
PlanetOnline.com, INC.
20501 Ventura Boulevard Suite 148
Woodland Hills , CA 91364
(818) 888-7030 (facsimile)
Attention: General Counsel
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9.3 |
Assignments. This Agreement will be binding
upon and inure to the benefit of the parties, their respective heirs,
personal representatives, successors and assigns. Neither party may assign
any of its rights or delegate any of its duties under this Agreement
without the prior written consent of the other, provided that Planet online
may assign this Agreement and all rights and obligations hereunder
to any MERCHANT or to any transferee of all or a majority of a party's
capital stock (whether by way of merger or otherwise) or all or a majority
of a party's assets except to a direct competitor of the other party. |
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9.4 |
Relationship Between the Parties. The parties
are independent organizations and there is no joint venture, partnership,
agency or fiduciary relationship existing between the parties and the
parties do not intend to create any such relationship by this Agreement
and neither party may legally bind the other. Notwithstanding the use
of the terms “COMMERCE PARTNER RELATIONSHIP”, “COMMERCE
PARTNER”, or other similar terms throughout the Agreement, the
parties confirm that their relationship is an alliance between two independent
organizations and is not a partnership. |
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9.5 |
Amendments; Waivers. This Agreement may
not be amended, modified or superseded, unless expressly agreed to in
writing by both parties. No provision of this Agreement may be waived
except by an instrument in writing executed by the party against whom
the waiver is to be effective. The failure of either party at any time
or times to require full performance of any provision hereof will in
no manner affect the right of such party at a later time to enforce the
same. |
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9.6 |
Severability. If any provision or term of
this Agreement, not being of a fundamental nature, is held to be invalid,
illegal or unenforceable, the validity, legality and enforceability of
the remainder of this Agreement will not be affected. |
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9.7 |
Entire Agreement. This Agreement and any
and all addenda, schedules or exhibits attached hereto represent the
entire agreement of the parties regarding the subject matter hereof.
There are no other oral or written collateral representations, agreements,
or understandings regarding the subject matter hereof. |
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MERCHANT would pay Planet online Cost Per Click
(the "CPC")
charges as outlined in Exhibit A, when Planet online visitors click
and are directed to MERCHANT’s Web Site.
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- MERCHANT will be provided a logo listing on Planet online's
Products Listing Page if MERCHANT opts in for such service. The
logo will link from Planet online's Products Listing Page to similar
product on MERCHANT's Web Site. MERCHANT will pay for MERCHANT’s
Logo display services as per logo additional CPC charges outlined
in Exhibit A Section 2.
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- MERCHANT will be provided a Featured Store listing on Planet online
's Products Listing Page if MERCHANT opts in for such service.
The Featured Store listing will link from Planet online's Products
Listing Page to similar product on MERCHANT's Web Site. MERCHANT
will pay for Featured Store display services as per Featured Store
additional CPC charges outlined in Exhibit A Section 3.
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- MERCHANT will be provided a store listing on Planet online's MERCHANTs
Page if MERCHANT opts in for such service. The store listing will
link from Planet online's MERCHANTs Page to MERCHANT's Web Site.
MERCHANT will pay for MERCHANT’s Listing display services as
per Store Listing CPC charges outlined in Exhibit A Section 4.
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- MERCHANT will be provided a Premier Merchant listing on Planet online
's Category Listing Pages if MERCHANT opts in for such service.
The store listing will link from Planet online's Category Listing
Pages to MERCHANT's Web Site. MERCHANT will pay for Premier Merchant
Listing display services as per Premier Merchant Listing CPC charges
outlined in Exhibit A Section 5.
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- MERCHANT and Planet online each agrees to use its commercially
reasonable efforts to provide its services under the MERCHANT Relationship.
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- MERCHANT shall be solely responsible for the provision of its
services and operation of its business.
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- MERCHANT shall be solely responsible to provide Planet online accurate
product listing in the format outlined in Exhibit B.
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Planet online
reserves the right to revise our policies at any time. |
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