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EXHIBIT 10
MICROSOFT CORPORATION
AUCTION SERVICES AGREEMENT - FAIRMARKET UK AMENDMENT NO. 1
THIS UK Amendment No.1 is entered into as of 15 August, 2000 by and between
Microsoft Corporation, a Washington corporation ("Microsoft") and FairMarket,
Inc., a Delaware corporation ("FairMarket").
WHEREAS:
1. Microsoft and FairMarket ("the parties") entered into an Auction
Services Agreement on 26 July 1999 (the "Agreement") under which
FairMarket agreed to develop, host and maintain the key elements of a
private labelled Microsoft auction service;
2. The Agreement includes a provision for expanding the defined Territory
to include International Sites (as set out in Section 13);
3. In terms of Section 13 of the Agreement, the parties have agreed that
MSN UK branded auction sites as International Sites ("UK Services")
are to be included as additional sites in terms of Section 2.4 and
covered under the terms of the Agreement (including any amendments,
updates replacements or modifications implemented by subsequent
agreement between the parties (the terms of which shall be
incorporated mutatis mutandis)); and
4. The parties agree to amend certain terms and conditions of the
Agreement in so far as these relate to the UK Services.
ACCORDINGLY, in consideration of the mutual covenants below, the parties agree
as follows: -
1. IN THE AGREEMENT THE FOLLOWING CLAUSES SHALL BE DELETED:
3.9, 5.1(b), 5.5, 5.6, 10.1, 10.2, 12.2 (b) AND (c), 15.1
2. IN THE AGREEMENT, THE FOLLOWING CLAUSES SHALL BE AMENDED AS FOLLOWS:
1.11 The first sentence of this Clause shall read ""LISTING FEES" means
any fee charged to a Seller by or on behalf of Microsoft for
entering its listings of products or services on the Private Label
Auction Sites."
1.15 This Clause shall have a second sentence which shall read ""MSN"
shall also include the UK version of Microsoft's general information
portal website located at www.msn.co.uk (including any versions,
upgrades, successors and replacements thereof)."
1.21 This Clause shall have a second sentence which shall read
"TERRITORY" shall also mean, in relation to the UK Services, the
geographic area comprising the United Kingdom."
2.4 List #1 shall also include the words "MSN.co.uk". List #1 and List
#2 shall also include the United Kingdom equivalents of any
Microsoft web sites mentioned therein.
2.6(c) The words "real estate classified ads" shall be deleted, and in
their place shall be the words "property classified ads".
2.7(c) The first sentence of this Clause shall read "BILLING AND
COLLECTING. For Microsoft-generated Merchandising Listings,
FairMarket will be responsible, on behalf of Microsoft, for
billing and collection of Merchandising Fees."
5.1(c) The following words shall be deleted: "Subject to Section 5.1(b), at
no charge to Microsoft, FairMarket will be solely responsible for
the billing and collection of Transaction Fees and Listing Fees."
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The following words shall be added in their place: "At no charge
to Microsoft, Fairmarket will be solely responsible for the
billing and collection of Transaction Fees and Listing Fees,
inclusive of VAT, on behalf of Microsoft. If FairMarket or any of
its affiliates is compelled by any government, public body,
organisation or authority to pay any such VAT or is assessed any
penalties for any failure to pay any such VAT, Microsoft shall
indemnify FairMarket and its affiliates of all taxes, claims,
costs, liabilities, losses, or expenses and penalties incurred
thereto on provision of proof of such taxes, claims, costs,
liabilities, losses, or expenses and penalties having been levied
against Fairmarket as provided for herein.".
The reference to "dollars", and the symbol "US$" shall be deleted
and replaced with "pounds sterling" and "GB(pound)" as
appropriate.
5.3 The words "Sixty Thousand Dollars (US$60,000)" shall be deleted and
replaced with "Five Thousand Pounds Sterling ((pound)5,000)".
5.8(b) The words "the Gross Revenues, Actual Microsoft Revenues, Minimum
Guaranteed Revenue, Visits, all other payments" shall be deleted
and replaced with "all payments".
12.1 The following words shall be deleted: "In the Renewal Term, if any,
Microsoft hereby waives FairMarket's minimum revenue guarantees,
and" and they shall be replaced with "In the Renewal Term, if any,".
Further, the following words shall also be deleted: "except that
any renewal of this Agreement shall include Most Favoured Nation
pricing from FairMarket to Microsoft and FairMarket agrees that
the Microsoft revenue share for any Renewal Term shall not be
less than fifty percent (50%) of FairMarket's Listing,
Transaction and other directly attributable FairMarket-related
Revenue unless otherwise mutually agreed in writing by both
parties. For purposes of this Section 12.1, "Most Favoured
Nation" pricing means revenue sharing on terms no less favourable
to Microsoft than those granted by FairMarket to other FairMarket
network members for a comparable service."
12.6 The list of Clauses referred to in this Clause shall include Clause
4.4.
15.2 References in this Clause to Attorneys shall be deleted and replaced
with the word "legal" as applicable.
EXHIBIT B References in this Exhibit to times of the day shall be
construed as references to that time of the day in the United
Kingdom.
3. IN THE AGREEMENT, THE FOLLOWING CLAUSES SHALL BE ADDED:
1.21 "TRANSACTION FEES" means any fee charged by or on behalf of
Microsoft to Sellers or Buyers which become payable to Microsoft
whether or not via an agent upon the consummation of a sale of
product(s) or service(s) through the Auction Services or the
Classified Advertising Services.
2.0 The "Effective Date" for the purposes of this Section 2 in respect
of UK Services shall be the day of 2000.
4.4 Notwithstanding the forgoing, both parties shall comply with all
Acts, Statutory Instruments and regulations including but not
limited to data privacy laws and regulations implemented pursuant to
the Directive 95/46/EC (the "Directive") as apply to the collection
and Processing (as defined below) of User Data by Microsoft or on
its behalf pursuant to this Agreement. Both parties shall further
ensure that they notify with the appropriate data protection
authorities all the User Data they Process or is Processed on their
behalf pursuant to this Agreement. Pursuant to all applicable data
privacy laws Microsoft will inform all Users of the purposes for
which their User Data will be Processed pursuant to this Agreement
and (to the extent required by the applicable implementation of the
Directive) obtain Users' consent to the same. Microsoft will have
access to User Data via the Administrative Module. For the
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purposes of this Section 4.4, "Processing" shall have the meaning
given in the Directive and "Process" and "Processed" shall be
construed accordingly.
10.1 Each of FairMarket and Microsoft shall at the request of the other
party defend and indemnify the other party, its affiliates,
officers, directors, employees, consultants and agents from any
and all third party claims, liability, damages and/or costs
(including, but not limited to, legal fees reasonably incurred)
arising from or relating to: (a) the breach of any warranty,
representation or covenant by FairMarket or Microsoft, as
applicable, in this Agreement; or (b) any claim that the Private
Label Auction Sites or any Content provided to Microsoft or
FairMarket, as applicable, or made available to third parties by
FairMarket or Microsoft, as applicable, in connection with this
Agreement infringes or violates any third party's copyright,
patent, trade secret, Marks, right of publicity or right of
privacy or contains any defamatory content; or (c) any claim or
action brought against Microsoft its affiliates, officers,
directors, employees, consultants and agents relating to the
Private Label Auction Sites and other Services to be provided by
FairMarket under this Agreement.
10.2 A party relying upon an indemnity under Section 10.1 shall promptly
notify the other party in writing of any and all such claims and
shall reasonably cooperate with such other party in the defence
and/or settlement thereof; provided that, if any settlement
requires an affirmative obligation of, results in any ongoing
liability to or prejudices or detrimentally impacts the
indemnified party in any way and such obligation, liability,
prejudice or impact can reasonably be expected to be material,
then such settlement shall require the indemnified party's prior
written consent (not to be unreasonably withheld or delayed) and
the indemnified party may, at its sole cost and expense, have its
own counsel in attendance at all proceedings and substantive
negotiations relating to such claim.
12.2 (b) the other party becomes insolvent or goes into either
compulsory or voluntary liquidation (except for the purpose of
reconstruction or amalgamation) or if an administrative receiver
or administrator is appointed in respect of the whole or any part
of its assets or if it makes an assignment for the benefit of or
composition with its creditors generally or threatens to do any
of these things or if any similar occurrence under any
jurisdiction affects it.
15.1 JURISDICTION. This Agreement shall be construed in accordance with
English law and both parties submit to the exclusive jurisdiction
of the Courts of England and Wales.
4. Microsoft and FairMarket agree that the terms of the Microsoft Standard
Reciprocal Non-Disclosure Agreement ("NDA") dated 26th July 1999 shall be
deemed incorporated herein, and further, that all terms and conditions of
this Amendment shall be deemed Confidential Information as defined in the
NDA,
IN WITNESS WHEREOF the parties intending to be legally bound have duly executed
this Amendment as of the date set out above
MICROSOFT CORPORATION FAIRMARKET, INC.
("MICROSOFT") ("FAIRMARKET")
By /s/ KAREN OLCOTT By /s/ N. LOUIS SHIPLEY
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Name KAREN OLCOTT Name N. LOUIS SHIPLEY
Title DIRECTOR, INTL PROGRAMMING & Title PRESIDENT, INTERNATIONAL
BUSINESS DEVELOPMENT
Date 24 AUGUST, 2000 Date 15 AUGUST, 2000
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