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Exhibit 10.29
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Confidential treatment has been requested for portions of this exhibit. The copy
filed herewith omits the information subject to the confidentiality request.
Omissions are designated as [*]. A complete version of this exhibit has been
filed separately with the Securities and Exchange Commission.
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Onvia Community E-Commerce Agreement
This Community E-Commerce Agreement is made as of December 18, 2000 (the
"Effective Date"), by and between Onvia.com, Inc., a Delaware corporation, with
its principal place of business at 1260 Mercer St., Seattle, Washington 98109
("Onvia"), and firstsource corp., a Delaware corporation, with its principal
place of business at 3511 West Sunflower, Santa Ana, California 92704 ("FS").
RECITALS
A. Onvia desires to outsource its current United States operations that engage
in the sale of products over the Internet on behalf of itself and its partners.
B. FS desires to provide to Onvia a private label solution for the sale of
products over the Internet by Onvia and Onvia's partners and FS will receive
revenue from such product sales and provide a portion of this revenue to Onvia
according to the terms and conditions of this Agreement.
1. Services Introduction.
1.1 Sites.
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(a) Definition of Site. "Site" shall mean each publicly available
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Internet web site developed, hosted, maintained and provided by FS that provides
product purchasing and fulfillment functions, including the Community Product
functionality, in accordance with this Agreement. "Sites" shall mean all such
web sites collectively.
(b) Onvia. FS will use its commercially reasonable efforts to launch
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a Site (the "Onvia Site") on or before January 7, 2001 which will replace the
product purchasing and fulfillment service functions currently provided by Onvia
under the "Purchase Now" tab on Onvia's primary United States Internet web site
located at the URL http://www.onvia.com. In the event FS fails to launch the
Onvia Site by January 31, 2001, other than due to a delay caused by Onvia or a
force majeure event, Onvia shall, subject to the terms of this Section 1.1(b),
have the right to terminate this Agreement immediately upon written notice to
FS, in which case FS shall within five (5) business days following its receipt
of Onvia's termination notice (i) return to Onvia all monetary amounts (if any)
paid to FS pursuant to this Agreement and (ii) either (a) reimburse Onvia for
the cost of the Equipment transferred and delivered to FS pursuant to Section
2.7 or, at FS's election in its sole discretion, (b) return such Equipment to
Onvia in good working condition (including reasonable wear and tear). The
foregoing right of termination and remedies shall be Onvia's sole remedy for any
breach by FS of this Section 1.1(b). Immediately upon launch of the Onvia Site
pursuant to this Section 1.1(b) and following delivery of the Convertible
Promissory Note attached as Appendix A, duly executed by FS, Onvia shall fund
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the amount indicated therein by wire transfer of immediately available funds to
an account specified in writing by FS. If Onvia for any reason does not fully
perform its obligation to fund as set forth in the preceding sentence, FS shall
have the right to terminate this Agreement and all obligations hereunder upon
written notice to Onvia, in which case FS may (i) discontinue operation of the
Site, and (ii) retain all equipment and software delivered by Onvia to FS
pursuant to Section 2.7. Upon receipt of such notice from FS, Onvia shall pay
FS $50,000, as liquidated damages and not as a penalty, to compensate FS for the
time and effort it expended in connection with the development of the Onvia Site
pursuant to this Section 1.1(b).
(c) AOL. FS will use its commercially reasonable efforts to launch a
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Site on such date as reasonably agreed by the parties, but in no event later
than February 28, 2001 (unless otherwise agreed to in the applicable Work
Order), for the "Purchase Now" tab on the Internet site currently located at the
URL http://onvia.aol.com.
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(d) Netscape. FS will use its commercially reasonable efforts to
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launch a Site on such date as reasonably agreed by the parties, but in no event
later than February 28, 2001 (unless otherwise agreed to in the applicable Work
Order), for the "Purchase Now" tab on the Internet site currently located at the
URL http://onvia.netscape.com.
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(e) Chambers. FS will use its commercially reasonable efforts to
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launch a Site on such date as reasonably agreed by the parties, but in no event
later than March 31, 2001 (unless otherwise agreed to in the applicable Work
Order), for the "Purchase Now" tab on the Internet sites currently provided to
certain chambers of commerce, associations and other similar organizations
listed on Appendix B.
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(f) Visa. FS will use its commercially reasonable efforts to launch a
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Site on such date as reasonably agreed by the parties with the consent of Visa
USA, Inc. ("Visa"), but in no event later than March 31, 2001 (unless otherwise
agreed to in
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the applicable Work Order), for the "Purchase Now" tab on the Internet site
currently located at the URL http://www.visabusiness.com.
(g) Other Sites. In accordance with the terms of Section 7.1 of this
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Agreement, FS will from time to time at the request of Onvia provide additional
Sites (the "Other Sites") to Onvia for use by certain of Onvia's partners and
affiliates (the "Other Partners").
(h) Development Obligations. FS will develop the Sites, and integrate the
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Community Product with each Site, in accordance with the Work Order applicable
to each Site and the SLA (as defined herein). Each of FS and Onvia will
negotiate in good faith to agree on the specifications included in the Work
Order for each Site. Each Site will be hosted on servers and a supporting
environment ("Servers") maintained by FS or its designee at FS's sole cost and
expense. The specifications for each Site will include the custom user
interfaces described in the Work Order. Any dates or periods relevant to
performance by FS in development, integration, launch and support of the Sites
will be equitably and appropriately extended to account for any delays in
Onvia's cooperation (including, without limitation, performance of acceptance
testing) or delivery to FS of Onvia Content or other materials or information
specified in this Agreement or in any Work Order to be provided by Onvia.
1.2 Community Product. "Community Product" shall mean FS's proprietary
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technology known as "Community" that performs, without limitation, order
processing, account management, returns processing, help desk and payment
processing functions, as more particularly described in the SLA, and updates,
upgrades and new releases thereof that FS makes available to Onvia and such
other functions and services as may be mutually agreed upon during the term of
this Agreement.
1.3 Onvia Content. Onvia will, from time to time during the term of this
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Agreement, provide FS with certain software, user interfaces and written
materials, trademarks, trade names, logos, characters, content and other items
that are to be provided by Onvia in connection with the Sites including, without
limitation, User codes and User passcodes needed by FS to develop the Universal
Log-In and Universal Shopping Cart features in connection with Phase II
integration of the Onvia Site (collectively, "Onvia Content"). Onvia agrees to
provide FS in a timely manner the Onvia Content set forth in the Work Order and
other content reasonably requested by FS provided upon request by FS.
1.4 Credit. A "Powered by Inpowr" graphical image, together with such other
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text, service marks, trademarks, icons and logos that are from time to time
reasonably designated by FS will be placed above the fold in a conspicuous
manner on the "partners and alliances" page of each Native Site, and at the
bottom of each other page of each Site from which the Community Product is
accessed or used. The "Powered by Inpowr" logo will be a graphical image only
and will not link to any web page other than the "partners and alliances" page
of the Native Site displaying a description, approved by Onvia (which approval
will not be unreasonably withheld) of the Community Product and similar product
offerings.
1.5 [Intentionally omitted.]
1.6 Pre-Launch Development Review. Prior to the launch of each Site, each
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party will make available appropriate personnel for regular development reviews.
These reviews will occur on a mutually agreed upon schedule, but no less than
once per week. With respect to the Onvia Site being developed pursuant to
Section 1.1(b), these reviews will occur on each Monday, Wednesday and Friday.
1.7 Acceptance. FS will notify Onvia when each Site is ready for acceptance
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testing by Onvia. Onvia shall have five (5) business days (five (5) calendar
days with respect to the Onvia Site) from the date of such notice to accept or
reject the Site ("Acceptance Period"). If Onvia does not notify FS in writing
of its rejection of the Site within the Acceptance Period, the Site will be
deemed accepted ("Acceptance"). Onvia will not reject any Site unless it
materially fails to conform to the specification set forth in the Work Order
related thereto or unless such Site contains any unspecified error that renders
that Site inoperative. If Onvia provides FS written notice of rejection within
the Acceptance Period specifying in reasonable detail the basis for rejection,
FS will promptly commence efforts to correct the non-conformance identified by
Onvia and will make a revised Site available for further evaluation, and the
Acceptance Period will be extended for five (5) business days (five (5) calendar
days with respect to the Onvia Site) from such availability. This acceptance
and rejection process will be repeated until Acceptance. Upon Acceptance of the
Onvia Site, Onvia shall have no right to terminate this Agreement except in
accordance with Section 12.2 (i) or (ii).
1.8 Launch. Upon Acceptance, FS and Onvia will make the Site publicly
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available to the end users of the Site ("Users") as soon as practicable.
Fifteen (15) calendar days after launch of the Onvia Site developed pursuant to
Section 1.1(b), Onvia shall pay FS the amount of [*] for the set-up and
integration of the Onvia Site and the Site developed pursuant to Section 1.1(f).
The [*] payment by Onvia shall be reduced by an amount equal to Onvia's purchase
price of all equipment and
[*] Confidential treatment requested
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software paid by Onvia on behalf of FS and transferred to FS pursuant to Section
2.7. Amounts paid pursuant to this Section 1.8 shall be non-refundable after
such payment. In this Agreement, "launch" shall mean the date of Acceptance or,
if earlier, the date when Onvia first makes a Site publicly available to Users.
1.9 Linking. Onvia and FS will cooperate to integrate, through hypertext links
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or other mutually agreed means, each Internet web site maintained by Onvia
containing a "Purchase Now" tab (the "Native Sites") with its corresponding Site
(e.g., http://www.visabusiness.com will link to the Site to be developed
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pursuant to Section 1.1(f)). The placement of such links on each such Native
Site will be of equivalent prominence and ease of navigation as such links exist
on the Effective Date. Unless otherwise agreed by FS in writing, all Native
Sites will be hosted on Onvia's or its designee's servers at Onvia's sole cost.
2. Other Matters.
2.1 No Resale. Except as set forth in this Agreement, Onvia may not resell,
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distribute, sublicense or lease the Sites or the Community Product.
2.2 Service Level Agreement. FS and Onvia shall each meet or exceed the
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standards applicable to its performance set forth in, and comply with the
agreements and requirements contained in, Appendix C (the "SLA"). A party's
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material failure to meet the standards, agreements and requirements contained in
the SLA shall give right to terminate this Agreement pursuant to Section 12.2,
subject to the thirty (30) day cure period provided in such section.
2.3 Maintenance. FS will maintain, operate and support the Sites at its sole
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expense. Such maintenance and support of the Sites shall include, but is not
limited to, correction of non-conformities with respect to the applicable Work
Order and correction of errors and defects. Onvia will have sole responsibility
to input, provide, periodically update, exercise editorial control over and
monitor all Onvia Content. FS will cooperate with Onvia to develop and
implement a process that permits Onvia to independently add, delete and edit
Onvia Content on the Site.
2.4 User Data. All information that is collected, directly or indirectly,
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from Users ("User Data") shall be collected and maintained in accordance with
the terms of the privacy policies available on the Native Sites, as amended from
time to time in accordance with the provisions thereof. Onvia shall be the
sole owner of all User Data. FS will collect, use, maintain and disclose data
concerning Users only to the extent required to perform its obligations
hereunder and for no other purpose whatsoever. Onvia shall ensure that the
privacy policies for the Native Sites permit the collection, use, maintenance
and disclosure of information by FS as is required to perform its obligations
hereunder. Each party will comply with all applicable laws, rules and
regulations including, without limitation, Internet regulations and policies and
export laws, governing the collection, use, maintenance and disclosure of
information collected on the Sites. Within fifteen (15) days after termination
or expiration of this Agreement, FS shall deliver all User Data in its
possession to Onvia in a form reasonably satisfactory to Onvia.
2.5 Exclusivity. Unless FS otherwise consents in writing, FS shall be the
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exclusive provider on the Native Sites of online product purchasing and
fulfillment services for computer hardware products, computer software products,
offices products and office supplies (each an, "Exclusive Category"). If Onvia
desires to offer a particular product that is not within an Exclusive Category,
then Onvia shall provide FS with written notice by email to an individual
designated from time to time by FS of Onvia's desire to offer such product. If
FS does not agree within two (2) business days that it will provide product
purchasing and fulfillment services with respect to such product within thirty
(30) days after the date of such agreement, Onvia may directly or indirectly
offer such product. Furthermore, if FS does not actually provide such product
purchasing and fulfillment services with respect to such product within thirty
(30) days after the date of such agreement, Onvia may directly or indirectly
offer such product. For purposes of this Agreement, "products" shall mean
tangible goods, not services or other offerings.
2.6 Pricing. All prices, descriptions, warranties and other terms of sale
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respecting products sold through the Sites will be as determined by FS in its
sole discretion. Onvia agrees that all of its independent promotional and
advertising materials will at all times be consistent with such prices and other
terms and will not under any circumstances contain any false or misleading
information. Onvia agrees to defend, indemnify and hold FS harmless from and
against any breach of the foregoing. FS shall manage the sale of products
through the Sites so that the overall Gross Margin for the Sites taken as a
whole does not exceed [*] for a particular fiscal quarter. If such overall
Gross Margin exceeds [*] for a particular quarter, the parties will meet to
discuss in good faith an action plan for remedying such excess in following
fiscal quarters. "Gross Margin" shall mean Aggregate Net Revenue less FS's cost
of goods sold, with such cost of goods sold determined in accordance with United
States generally accepted accounting principles, consistently applied.
[*] Confidential treatment requested
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2.7 Transfer of Equipment. Onvia hereby sells, transfers and assigns to FS,
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and its respective successors and assigns, all right, title and interest in and
to the equipment and software described in Appendix D attached hereto (the
"Equipment") and Onvia shall deliver any Equipment not previously delivered to
FS within three (3) calendar days following the Effective Date.
3. Program Managers, Sales Support and Further Efforts.
3.1 Program Managers. Each party will designate and maintain a program manager
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("Program Manager") who will cooperate and coordinate with the other party and
its project team regarding the day to day activities related to this Agreement
and the exchange of Confidential Information under this Agreement. Neither
party's Program Manager is authorized to amend, alter or extend this Agreement
in any manner.
3.2 Promotional Efforts. FS shall have the right, in its sole discretion and
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at its sole expense, to promote and advertise the Sites; provided, however, that
(a) FS shall abide by the terms and conditions that Onvia provides to FS in
writing related to customer contact, intellectual property, advertising and
promotions included in Onvia's agreements (the "Partner Agreements") with its
partners, including without limitation, those with America Online, Inc., Visa
and certain of Visa's member banks, provided, however, if it becomes necessary
for FS to modify the Community Product after the launch of any Site related to
such a partner in a manner not provided for in the Work Order for the applicable
Site, then Onvia and FS shall negotiate in good faith to agree on a reasonable
allocation of costs and expenses related to such modification, (b) not less
than four (4) times per month, Onvia shall include content provided by FS (which
content shall be subject to Onvia's prior reasonable approval) in Onvia's "Onvia
Flash" email newsletter, which content shall be designed solely to drive traffic
to the Sites and shall receive comparable placement and prominence to that given
to "Purchase Now" as of the Effective Date, and (c) all direct communications
from FS to Users require the prior written approval of Onvia and shall be
designed to drive traffic exclusively to the Sites. All promotional and
advertising material using Onvia Content and any changes or amendments thereto
are subject to the prior written approval of Onvia, which approval shall not be
unreasonably withheld. During the term of this Agreement, but not more than
once per quarter, Onvia shall conduct direct email marketing campaigns promoting
the Sites and designed solely to drive traffic to the Sites on behalf of FS
directed to all of Onvia's Users that Onvia has permission to send marketing
emails to, and FS shall provide Onvia with all creative and other materials for
such campaigns. During the term of this Agreement, but not more than once per
quarter, FS shall conduct direct email marketing campaigns promoting services of
Onvia that are not competitive, as determined in the exercise of FS's reasonable
discretion, with product and service offerings of FS (other than web hosting and
government to business and business to government exchange services, which shall
be included regardless of whether or not such services are competitive) directed
to all of FS's customers and users that FS has permission to send marketing
emails to.
4. Compensation.
4.1 Revenue Share. FS shall pay to Onvia, within twenty (20) days following
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the last day of each quarter, a quarterly fee ("Revenue Share Fees") in an
amount equal to [*] multiplied by the Aggregate Net Revenue. "Aggregate Net
Revenue" shall mean aggregate gross revenue actually received by FS or any of
its affiliates in each calendar quarter (or any portion thereof) from the sale
of products on the Sites, less the amount of sales, use or similar taxes,
duties, net shipping, net handling and net insurance charges, and amounts
related to credit card fraud, bad debt, credits for returned goods and rebates;
provided and to the extent such items are actually incurred and documented and
do not exceed reasonable and customary amounts. Notwithstanding the foregoing,
FS shall pay directly to Onvia, guaranteed, non-refundable, non-creditable
Revenue Share Fees equal to (a) [*] within fifteen (15) days following the later
of (i) the launch of the Onvia Site and (ii) Onvia's funding of the convertible
promissory note pursuant to Section 1.1(b), and (b) [*] on April 15, 2001 in
lieu of the Revenue Share Fees for the calendar quarters ending March 31, 2001
and June 30, 2001, respectively.
4.2 Pricing Discounts; Returns. If FS, upon the request of Onvia, discounts
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pricing on any particular product or products, Onvia shall pay to FS an amount
equal to the amount of such discount as mutually agreed upon pursuant to good
faith negotiations. Within five (5) days after the Effective Date, the parties
shall agree pursuant to good faith negotiations on the rights and
responsibilities related to returns for products that are purchased through the
"Purchase Now" tab on any Native Site prior to the launch of the corresponding
Site. FS shall be solely responsible for processing, shipping and replacing or
otherwise handling product returns for products that are purchased through any
Site. Following any termination or expiration of this Agreement, Onvia shall
route telephone and email requests related to such product returns in a timely
manner to FS using reasonably agreed upon procedures (e.g., based upon order
numbers or other identifying information).
4.3 Additional Services. Onvia agrees to compensate FS for all services
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rendered at the written request of Onvia, other than services listed in the SLA
that are required to be provided pursuant to each Work Order, at FS's published
time and materials rates that are listed in the SLA and as such rates may be
changed by FS on an annual basis, provided that FS's rates to Onvia
[*] Confidential treatment requested
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hereunder will not exceed the most favorable rates extended by FS to other
customers for similar services. FS will invoice Onvia on a monthly basis for all
such fees and unless otherwise agreed in writing, all fees and other charges
owed by Onvia shall be due within fifteen (15) days following the invoice date
for such fees and charges. All payments under this Agreement will be made in
U.S. dollars to the applicable party at its address stated above, or such other
address provided in writing to the other party.
4.4 Advertising.
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(a) Definitions. For purposes of this Agreement:
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"Advertising Services" shall mean all advertising sales and similar
activities including, without limitation, prospecting, producing collateral,
establishing rates and advertising policies, selling, closing and servicing
advertiser accounts, and acting as exclusive United States representative.
"Advertising Services" also includes, without limitation, selling Site
Advertising, Category Sponsorships, List Access and FS Inventory, including all
available premium positions (e.g., those positions with higher rates or costs),
and all services customarily performed by advertising representative firms,
including trafficking advertisements, serving advertisements (via Onvia's
AdForce Ad Serving technology), invoicing, and collecting payment from
advertising clients.
"Category Sponsorships" shall mean various preferential placements sold to
vendors and advertisers of a class of products and services sold on the Sites
and the FS Native Sites.
"FS Inventory" shall mean all available advertising inventory on the FS
Native Sites.
"FS Native Sites" shall mean each Internet web site for which FS has the
exclusive right to place advertising (other than the Sites) including, without
limitation, the site currently located at www.firstsource.com and all other
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similar sites.
"List Access" shall mean providing any third party with access to FS's
customer and/or user databases (including email and mailing lists) via direct
mail and email campaigns.
"Site Advertising" shall mean all advertising sold on the Sites.
(b) Exclusive Provider; Revenue Share. Commencing on April 19, 2001, or
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earlier as mutually agreed by the parties, and continuing during the term of
this Agreement (the "Advertising Services Term"), Onvia shall be the exclusive
provider of Advertising Services on the Sites and the FS Native Sites; provided
that on the date the Advertising Services Term commences Onvia has an
advertising sales team in the business of selling advertising. At all times
during the Advertising Services Term, Onvia shall perform the Advertising
Services in accordance with the advertising guidelines to be reasonably agreed
upon between the parties and/or pursuant to advertising guidelines reasonably
agreed upon between FS and its partners and provided to Onvia in writing.
Notwithstanding the foregong, FS's current advertising agency, may fulfill
commitments entered into at or prior to the date of this Agreement to serve
advertisements during the Advertising Services Term. Upon Onvia's reasonable
request but no less than monthly, FS shall provide user statistics, demographic
reports, advertising traffic reports and such other reports and information as
reasonably requested by Onvia for Onvia's use in selling Advertising Services to
advertisers, vendors and agencies. Onvia shall collect all payments for
Advertising Services. Onvia shall pay to FS an amount equal to amounts actually
collected by Onvia each month Advertising Services multiplied by the applicable
FS category percentage:
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Category FS Category Percentage
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Site Advertising [*]
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Category Sponsorships [*]
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List Access [*]
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FS Inventory [*]
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Payments made by Onvia pursuant to this Section 4.4 are due at the end of each
week following the week in which the revenues for Advertising Services are
received by Onvia, and each such payment shall be accompanied by a report
detailing revenues for Advertising Services for the applicable period.
Concurrent with each payment, Onvia shall provide FS with a written ad sales
report stating the amount of sales generated for each category during the prior
month and the calculation of the monthly advertising fee for such month and all
supporting documentation in accordance with the provisions of the SLA.
[*] Confidential treatment requested
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4.5 Audit. Onvia may conduct, or engage outside auditors to conduct, once
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during each twelve month period, except as otherwise provided below, upon ten
(10) days prior notice, an audit of FS's books and records to verify the amount
Revenue Share Fees provided for in this Agreement. FS will make all pertinent
books and records available to Onvia and its auditors at FS's premises during
regular business hours as necessary for the performance of such an audit. Onvia
will bear the cost of such audit unless the audit indicates that FS's accounting
to Onvia for such Revenue Share Fees was inaccurate favorably to FS by more than
ten percent (10%), in which case FS will bear the cost of the audit and Onvia
may perform another audit (in addition to the audit provided for above) at FS's
cost within the following twelve (12) months. In any case, the parties shall
respectively remit the amount of any shortfall or overpayment to the other as
indicated by any such audit within thirty (30) days of receipt of the auditors'
report. FS may conduct, or engage outside auditors to conduct, once during each
twelve month period, except as otherwise provided below, upon ten (10) days
prior notice, an audit of Onvia's books and records to verify the amount of
monthly advertising fees provided for in this Agreement. Onvia will make all
pertinent books and records (including, without limitation, advertising
insertion orders and advertising agreements) available to FS and its auditors at
Onvia's premises during regular business hours as necessary for the performance
of such an audit. FS will bear the cost of such audit unless the audit indicates
that Onvia's accounting to FS for such monthly advertising fees was inaccurate
favorably to Onvia by more than ten percent (10%), in which case Onvia will bear
the cost of the audit and FS may perform another audit (in addition to the audit
provided for above) at Onvia's cost within the following twelve (12) months. In
any case, the parties shall respectively remit the amount of any shortfall or
overpayment to the other as indicated by any such audit within thirty (30) days
of receipt of the auditors' report.
4.6 Monthly Development Fees. In consideration for FS's (a) performing its
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obligations under Sections 1.1(c), 1.1(d) and 1.1(e), and (b) performing
development on the first nine (9) Other Sites, Onvia shall pay FS a non-
refundable, non-creditable monthly development fee in the amount of (x) [*] on
each of January 31, 2001, February 28, 2001 and March 31, 2001 and (y) [*] on
each of May 15, 2001 and June 15, 2001. The payments made pursuant to
subparagraph (y) of the preceding sentence are also made in partial
consideration of FS designating Onvia as its exclusive agent pursuant to Section
4.4(b).
5. Licenses.
5.1 Marks. Each party (each a "licensor") grants the other party ("licensee")
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a non-exclusive, worldwide, royalty-free, non-transferable, non-sublicensable
license to use, reproduce, transmit and display the licensor's trademarks, trade
names, service marks, logos or other identifying or distinctive marks in the
form provided by the licensor ("Marks"), solely (a) for the purpose of branding
the Sites and making such Sites available to Users, and (b) for the purpose of
promoting and marketing the Sites, all in accordance with the requirements of
this Agreement. All use of the Marks is subject to licensor's prior written
approval, and licensor may withdraw a previously approved use (or modify,
supplement or delete any approved Mark) by giving written notice of withdrawal
to licensee. Licensee agrees that (i) licensor's Marks are owned solely and
exclusively by licensor, (ii) except as set forth herein, licensee has no
rights, title or interest in or to the licensor Marks, and (iii) all use of the
licensor Marks by licensee shall inure to the benefit of licensor. Licensee
shall not apply to register any of licensor's Marks (or any mark confusingly
similar thereto) anywhere in the world, except to the extent required by
applicable law.
5.2 Onvia Content. Onvia grants FS a non-exclusive, worldwide, royalty-free,
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non-transferable, non-sublicensable license to reproduce, display and otherwise
use the Onvia Content (including any third party software provided by Onvia (but
only to the extent permitted under the license of such software)) for purposes
of developing, hosting and maintaining the Sites, integrating and supporting the
Community Product (including any modifications thereto), and otherwise
performing FS's obligations under this Agreement in accordance with the terms
and conditions hereof and for no other purposes.
6. Proprietary Rights.
6.1 Onvia Proprietary Rights. As between the parties, subject to the licenses
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granted herein, Onvia shall exclusively own all right, title and interest in and
to the Marks provided by Onvia, the Onvia Content, the User Data and all related
patent rights, copyrights, mask work rights, trademark rights, trade secret
rights, and all other intellectual and industrial property rights of any kind
anywhere in the world (collectively, the "Onvia Proprietary Rights").
6.2 FS Proprietary Rights. As between the parties, FS shall exclusively own
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all right, title and interest in and to the Sites (including the incorporated
and underlying technology and software, but excluding the Onvia Proprietary
Rights), the Marks provided by FS, the Community Product, any methods,
algorithms, discoveries, inventions, materials, ideas and other work product
that is in each case conceived, originated or prepared solely by an employee of
or consultant to FS in connection with development of the Sites, integration of
the Community Product, or the provision of any other services under this
Agreement, all SKUs, vendor information, product information, graphics and
related data and materials created under this Agreement by FS for use with the
Sites (other than User Data), and all related patent rights, copyrights, mask
work rights, trademark rights,
[*] Confidential treatment requested
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trade secret rights, and all other intellectual and industrial property rights
of any kind anywhere in the world ("FS Proprietary Rights").
7. Other Sites.
7.1 Other Sites; Child Sites.
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(a) For each additional Other Site in excess of the nine (9) Other
Sites developed pursuant to Section 4.6, Onvia shall pay FS a setup fee of [*]
and a hosting fee of [*] per month for each such Other Site ordered and
launched. FS shall use its commercially reasonable efforts to launch each of the
first nine (9) such Other Sites within thirty (30) days after FS's receipt of a
fully executed Work Order and each additional Other Site on mutually agreeable
timeframe, provided that the launch times for such additional Other Sites shall
not exceed FS's then-applicable development lead-time for similar private label
sites. The Work Order shall be delivered on the form reasonably specified from
time to time by FS, and the form attached as Appendix E will apply until further
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written notice to Onvia.
(b) FS shall use its commercially reasonable efforts to launch each
"Child Site" (as defined in the SLA) on a mutually agreeable timeframe, provided
that the launch times for such additional Child Sites shall not exceed FS's
then-applicable development lead-time for similar private label sites. For the
development and launch of each such Child Site, FS shall charge Onvia at FS's
published time and materials rates that are listed in the SLA and as such rates
may be changed by FS on an annual basis, provided that FS's rates to Onvia
hereunder will not exceed the most favorable rates extended by FS to other
customers for similar services. FS will invoice Onvia on a monthly basis for all
such fees and unless otherwise agreed in writing, all fees and other charges
owed by Onvia shall be due within fifteen (15) days following the invoice date
for such fees and charges.
7.2 Other Partner Contracts. Each agreement between Onvia and an Other Partner
-----------------------
shall: (i) disclaim all express and implied warranties on behalf of FS, and
exclude liability of FS and its licensors for any special, indirect, exemplary,
incidental or consequential damages; (ii) prohibit the Other Partner from (a)
copying the Sites, or any part thereof, (b) modifying the Sites, or (c)
attempting to reverse engineer, decompile or disassemble any portion of the
Sites; (iii) state that the Other Partner may not further distribute the
applicable Site or otherwise make (or assist others in making) any Site
available for use other than by Users; (iv) make all of the restrictions
applicable to Onvia's use of the Sites under this Agreement (including, without
limitation, those pertaining to advertising, compliance with the Use Policy and
other laws) applicable to such Other Site; and (v) provide that FS is a third-
party beneficiary with rights of direct enforcement.
7.3 Termination of Other Site. FS has the right to terminate the Other Site of
-------------------------
any Other Partner which violates the terms and conditions required pursuant to
Section 7.2 upon thirty (30) days prior written notice to Onvia. Onvia may
terminate the Other Site of any Other Partner for any reason upon thirty (30)
days' prior written notice to FS. Upon any termination of any Other Site, each
of Onvia and FS shall remain liable for all amounts accrued prior to termination
and all remaining obligations applicable to such Other Site.
8. Representations and Warranties.
8.1 General. FS and Onvia each represent and warrant to the other that: (i)
-------
such party is duly organized and validly existing under the laws of the
territory of its incorporation, and it has full corporate power and authority to
enter into this Agreement and to carry out its provisions; (ii) this Agreement
is valid and legally binding upon such party, and the execution, delivery and
performance of this Agreement does not conflict with any other agreement,
instrument or understanding to which it is a party or by which it may be bound,
nor would it violate any law or regulation of any court, governmental body or
agency having jurisdiction over it; and (iii) such party will comply with and
adhere to applicable laws and regulations in the performance of its obligations
hereunder.
8.2 Onvia Representations and Warranties. Onvia represents and warrants that on
------------------------------------
the Effective Date and the date of each transfer pursuant to Section 2.7 of this
Agreement: (1) it has conveyed to FS good and marketable title to the Equipment
hereunder, (2) the Equipment is not subject to any pledge, option, escrow,
hypothecation, lien, security interest, financing statement, lease, license,
easement, encumbrance or other restriction of any kind and (3) the Equipment is
new and in good operating condition and repair. Onvia also represents and
warrants that, at all times during the term of this Agreement, to the best of
its knowledge (i) the Onvia Proprietary Rights as provided hereunder does not
and will not contain information or material that will violate any law or any
rights of any third party including, without limitation, contractual rights;
(ii) the Onvia Content, the Native Sites and the advertising served on the FS
Nativc Sites in connection with the Advertising Services will not contain any
obscene, libelous, slanderous or defamatory materials, or any materials which
refer in an offensive way
[*] Confidential treatment requested
-7-
<PAGE>
to the gender, race or ethnicity of any person or group; and (iii) the
transactions conducted through the Native Sites will not violate any U.S. or
foreign export laws or other laws or regulations.
8.3 FS Representations and Warranties. FS also represents and warrants that,
---------------------------------
at all times during the term of this Agreement, to the best of its knowledge (i)
the FS Proprietary Rights do not and will not contain information or material
that will violate any law or any rights of any third party including, without
limitation, contractual rights, (ii) the Sites will not contain any obscene,
libelous, slanderous or defamatory materials, or any materials which refer in an
offensive way to the gender, race or ethnicity of any person or group; and (iii)
the transactions conducted through the Sites will not violate any U.S. or
foreign export laws or other laws or regulations.
8.4 Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN OR IN ANY
-------------------
APPENDIX, EXHIBIT OR SCHEDULE HERETO, FS MAKES NO WARRANTIES WITH RESPECT TO THE
SITES AND OTHER SERVICES PROVIDED UNDER THIS AGREEMENT, AND FS DISCLAIMS ALL
WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT THERETO
INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. FS DOES NOT WARRANT THAT
THE SITES OR ANY SERVICES ARE ERROR FREE, OR THAT THEY WILL OPERATE WITHOUT
INTERRUPTION.
9. Liability Limitations.
9.1 NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT, TO THE MAXIMUM EXTENT
PERMITTED BY LAW, FS WILL NOT BE LIABLE TO ONVIA WITH RESPECT TO THE SUBJECT
MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR
OTHER LEGAL OR EQUITABLE THEORY FOR ANY OF THE FOLLOWING: (I) ANY AMOUNT IN
EXCESS OF [*], WHICH EACH OF THE PARTIES ACKNOWLEDGES AND AGREES REPRESENTS A
REASONABLE ESTIMATE OF ITS DAMAGES HEREUNDER; (II) ANY LOST DATA OR OTHER
SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER, INCLUDING,
WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER
FAILURE OR MALFUNCTION, LOSS OF DATA, OR OTHER COMMERCIAL DAMAGES OR LOSSES,
EVEN IF FS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (III) THE
COST OF PROCURING SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY. THE LIMITATIONS OF
THIS SECTION 9.1 DO NOT APPLY TO FS'S BREACH OF SECTION 11 (CONFIDENTIALITY), TO
----------- ----------
AMOUNTS PAYABLE TO A THIRD PARTY PURSUANT TO THE INDEMNITY OBLIGATIONS SET FORTH
IN SECTION 10.2 HEREUNDER, OR TO A VIOLATION OF THE ONVIA PROPRIETARY RIGHTS BY
FS.
9.2 NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT, TO THE MAXIMUM EXTENT
PERMITTED BY LAW, ONVIA WILL NOT BE LIABLE TO FS WITH RESPECT TO THE SUBJECT
MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR
OTHER LEGAL OR EQUITABLE THEORY FOR ANY OF THE FOLLOWING: (I) ANY AMOUNT IN
EXCESS OF [*], WHICH EACH OF THE PARTIES ACKNOWLEDGES AND AGREES REPRESENTS A
REASONABLE ESTIMATE OF ITS DAMAGES HEREUNDER; (II) ANY LOST DATA OR OTHER
SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER, INCLUDING,
WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER
FAILURE OR MALFUNCTION, LOSS OF DATA, OR OTHER COMMERCIAL DAMAGES OR LOSSES,
EVEN IF FS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (III) THE
COST OF PROCURING SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY. THE LIMITATIONS OF
THIS SECTION 9.2 DO NOT APPLY TO ONVIA'S BREACH OF SECTION 11 (CONFIDENTIALITY),
----------- ----------
TO AMOUNTS PAYABLE TO A THIRD PARTY PURSUANT TO THE INDEMNITY OBLIGATIONS SET
FORTH IN SECTION 2.6 OR 10.1 HEREUNDER, OR TO A VIOLATION OF THE FS PROPRIETARY
RIGHTS BY ONVIA.
9.3 The parties acknowledge that each party has set its fees and charges and
entered into this Agreement in reliance upon the limitations of liability and
disclaimers of warranties and damages set forth herein, and that the same form
an essential basis of the bargain between the parties. The parties agree that
the limitations and exclusions of liability and disclaimers specified in this
Agreement will survive and apply even if found to have failed of their essential
purpose.
10. Indemnification and Infringement Remedies.
[*] Confidential treatment requested
-8-
<PAGE>
10.1 Onvia Indemnification. Onvia will defend, indemnify and hold FS harmless
---------------------
from and against any and all damages, liabilities, costs and expenses
(including, but not limited to, reasonable attorney and expert witness fees)
awarded against FS that result from or arise out of a third party claim (or
settlement thereof) based upon (i) Onvia's breach of any representation,
warranty, covenant or agreement made by it herein; (ii) Onvia's failure of
performance under a service level agreement or similar agreement applicable to
its operation of a Native Site; (iii) any warranties provided by Onvia to Users
or false advertising or fraud in connection with Onvia's promotion of the Native
Sites, Sites or Onvia's services; (iv) Onvia's collection, use and disclosure of
User Data; or (v) infringement of any third-party copyright, or misappropriation
of a third-party trade secret enforceable under the laws of the United States by
any of the Onvia Proprietary Rights, other materials provided by Onvia or
advertising served by Onvia on the FS Native Sites in accordance with this
Agreement, provided, however that the indemnity obligation under the foregoing
clause (v) does not apply to the extent any infringement or misappropriation
claim directly results from (a) FS Proprietary Rights or other materials
provided by FS in accordance with this Agreement or specifications provided by
FS, (b) any modifications to any Onvia Proprietary Rights that are not made by
Onvia or that are made by or on behalf of Onvia at the direction of FS, (c) use
of the Onvia Proprietary Rights in combination with any software, technology,
hardware, process, trademark, logo, product or other property not provided by
Onvia, (d) continued use of any Onvia Proprietary Rights or other infringing
item after notice of the infringement, or (e) the act or omission of any User.
Notwithstanding anything else herein to the contrary, Onvia reserves the right
to at any time modify any Onvia Proprietary Rights to make it non-infringing.
THE FOREGOING IS IN LIEU OF ANY WARRANTIES OF NON-INFRINGEMENT, WHICH ARE HEREBY
DISCLAIMED.
10.2 FS Indemnification. FS will defend, indemnify and hold Onvia harmless
------------------
from and against any and all damages, liabilities, costs and expenses
(including, but not limited to, reasonable attorney and expert witness fees) )
awarded against Onvia that result from or arise out of a third party claim (or
settlement thereof) based upon (i) FS's breach of any representation, warranty,
covenant or agreement made by it herein; (ii) FS's failure of performance under
the SLA; (iii) FS's collection, use and disclosure of User Data other than in
accordance with the terms of this Agreement; (iv) any warranties provided by FS
to Users or false advertising or fraud in connection with FS's promotion of the
Sites; or (v) infringement of any third-party copyright, or misappropriation of
a third-party trade secret enforceable under the laws of the United States by
any of the FS Proprietary Rights or other materials provided by FS in accordance
with this Agreement, provided, however that the indemnity obligation under the
foregoing clause (v) does not apply to the extent any infringement or
misappropriation claim directly results from (a) Onvia Proprietary Rights or
other materials provided by Onvia or other items or specifications provided by
Onvia, (b) any modifications to any Site or its content that are not made by FS
or that are made by or on behalf of FS at the direction of Onvia, (c) use of the
Sites in combination with any software, technology, hardware, process,
trademark, logo, product or other property not provided by FS, (d) continued use
of any Site or other infringing item after notice of the infringement, or (e)
the act or omission of any User. Notwithstanding anything else herein to the
contrary, FS reserves the right to at any time modify any Site to make it non-
infringing. THE FOREGOING IS IN LIEU OF ANY WARRANTIES OF NON-INFRINGEMENT,
WHICH ARE HEREBY DISCLAIMED.
10.3 Indemnification Procedures. A party's right to indemnification
--------------------------
("indemnified party") is conditioned upon the following: prompt written notice
to the party obligated to provide indemnification ("indemnifying party") of any
claim, action or demand for which indemnity is sought; control of the
investigation, preparation, defense and settlement thereof by the indemnifying
party; and such reasonable cooperation by the indemnified party, at the
indemnifying party's request and expense, in the defense of the claim. The
indemnified party shall have the right to participate in the defense of a claim
by the indemnifying party with counsel of the indemnified party's choice at the
indemnified party's expense. The indemnifying party shall not, without the prior
written consent of the indemnified party, settle, compromise or consent to the
entry of any judgment that imposes any liability upon the indemnified party.
11. Confidential Information.
11.1 Confidentiality Obligations. The parties acknowledge and agree that, as a
---------------------------
result of negotiating, entering into and performing this Agreement, each party
(a "receiving party") has and will have access to certain Confidential
Information (as defined below) of the other party (a "disclosing party"). Each
receiving party acknowledges and agrees that misuse or disclosure of the
Confidential Information of the disclosing party could adversely affect the
disclosing party's business. Accordingly, the parties agree that, during the
term of this Agreement and for a period of three (3) years thereafter, the
receiving party shall (a) use and reproduce the disclosing party's Confidential
Information only to perform its obligations hereunder and for the purposes
specified in this Agreement, (b) restrict disclosure of the disclosing party's
Confidential Information to its employees and contractors with a need to know
the Confidential Information to enable the receiving party to perform its
obligations under this Agreement, and (c) not disclose the disclosing party's
Confidential Information to any third party (including, but not limited to, any
third-party consultant, contractor, or agent) without the prior written approval
of the disclosing party and without first obtaining such third party's written
agreement to maintain the confidentiality of the disclosing party's Confidential
Information under terms and conditions at least as stringent as those set forth
in this Section
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<PAGE>
11.1. The receiving party further agrees that, following the expiration or
----
earlier termination of this Agreement, it shall promptly return to the
disclosing party all Confidential Information of the disclosing party or
destroy such Confidential Information and so certify in writing to the
disclosing party. Notwithstanding the requirements of this Section 11.1, the
------------
receiving party may disclose Confidential Information of the disclosing party to
the extent it is required to do so under law or the regulations of any national
securities exchange or in a judicial or other governmental investigation or
proceeding, provided that the receiving party gives the disclosing party prompt
written notice of the compelled disclosure and cooperates with the disclosing
party in seeking a protective order or any other available protections available
to limit the disclosure of the disclosing party's Confidential Information.
11.2 Confidential Information Defined. The term "Confidential Information"
--------------------------------
shall mean any information of a party disclosed to the other party in the course
of this Agreement, which is identified as, or should be reasonably understood to
be, confidential to the disclosing party, including, but not limited to, know-
how, trade secrets, data, technical processes and formulas, source code, product
designs, sales, cost and other unpublished financial information, product and
business plans, projections, marketing data and this Agreement and all
appendixes, exhibits and schedules hereto. Neither party shall disclose the
terms of this Agreement to any third party (including, without limitation, any
press release relating to this Agreement) without the prior written consent of
the other party, except to potential investors or potential acquirors of the
receiving party and their financial and legal advisors or in connection with a
filing with the Securities Exchange Commission, provided that such party shall
redact mutually agreeable portions of the Agreement and provide the other party
with at least five (5) days prior notice of such disclosure. Notwithstanding
the foregoing, the term "Confidential Information" specifically excludes (a)
information that is in the public domain or enters the public domain through no
action or default of the receiving party; (b) information that is known to the
receiving party without restriction, prior to receipt from the disclosing party
from its own independent sources as evidenced by the receiving party's written
records created in the normal course of its business; (c) information that the
receiving party receives from a third party known by the receiving party to have
a legal right to transmit such information, and not under any obligation of
confidentiality; and (d) information that the receiving party can establish,
through written records created in the normal course of the receiving party's
business, was independently developed by the receiving party's employees or
agents without any use of or reference to the disclosing party's Confidential
Information. Notwithstanding anything else herein, information regarding the
underlying technology and software relating to any Site shall be deemed the
Confidential Information of FS.
11.3 Publicity. The parties shall make a mutually agreed upon joint press
---------
release on the Effective Date announcing the relationship contemplated by this
Agreement. Except as otherwise provided herein, neither party will use the
other party's name in advertising or publicity without obtaining the other
party's prior written consent.
12. Term and Termination.
12.1 Term. This Agreement shall be effective upon the Effective Date and shall
----
remain in force for a period of three (3) years, unless earlier terminated as
provided in this Section 12. This Agreement will automatically renew for
successive twelve (12) month periods, unless either party notifies the other
party in writing of non-renewal at least ninety (90) days prior to the
expiration of the then-current term.
12.2 Termination. This Agreement may be terminated with cause by Onvia in
-----------
accordance with Section 1.1(b) or by either party if (i) the other party
materially breaches any provision hereof, and such breach is not cured within
thirty (30) days after demand for cure is made in writing (other than payments
to be made on a date certain for which there will be no thirty (30) day cure
period), and (ii) if the other party ceases to conduct its business or becomes
insolvent, or in the event of the institution under any applicable law of any
voluntary or involuntary insolvency proceedings against such party (including
bankruptcy, consent to a receivership, adoption of an arrangement with
creditors, dissolution or liquidation, or similar action), which proceedings,
consent, adoption or arrangement is not vacated within thirty (30) days after
inception. Notwithstanding the foregoing, Onvia shall have the right to
immediately terminate this Agreement without liability if (i) prior to 4:00 p.m.
P.S.T. on Friday, December 22, 2000, there shall not have been deposited into
escrow, with an escrow agent reasonably satisfactory to Onvia, at least [*] in
connection with a convertible note or equity financing for the benefit of FS
with the sole condition for release of such funds to FS by the escrow agent
being the receipt by FS of requisite stockholder approval for such financing or
(ii) prior to 4:00 p.m. P.S.T. on Tuesday, January 2, 2001 such funds shall not
have been unconditionally released from such escrow for the benefit of FS in
connection with such financing and at or prior to such time Onvia shall have
received satisfactory evidence of such release, provided, however, Onvia shall
have no such right of termination if FS shall have received and closed for its
benefit without an escrow a convertible note or equity financing prior to 4:00
p.m. P.S.T. Friday, December 22, 2000 in an amount not less than [*] and at or
prior to such time shall have provided Onvia with satisfactory evidence of such
receipt and closure.
[*] Confidential treatment requested
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<PAGE>
12.3 Effect of Termination. Upon expiration or any termination of this
---------------------
Agreement, (i) all licenses granted herein will automatically expire; (ii) any
amounts then due and owing as of such date shall become immediately due and
payable; (iii) FS will promptly return the Onvia Content to Onvia; (iv) each
party will promptly return to the other party all of its Confidential
Information, and (v) each party will immediately cease using, and make no
further use of the Marks of the other party. Neither party shall be relieved of
any obligation accruing under this Agreement prior to its termination, and each
party shall continue to be entitled to payment of all amounts accrued prior to
expiration or termination.
12.4 Survival. The payment provisions of Sections 2.2, 4 (to the extent
-------- ------------------------------
payment of any amounts set forth therein shall have been earned or accrued prior
--------------------------------------------------------------------------------
to the date of such expiration or termination), 4.2, 6, 7.1 (to the extent
--------------------------------------------------------------------------
payment of any amounts set forth therein shall have been earned or accrued prior
--------------------------------------------------------------------------------
to the date of such expiration or termination), 9, 10, 11, 12.3, 12.4, 13.1,
----------------------------------------------------------------------------
13.3, 13.4, 13.5, 13.6, 13.8 and 13.11, hereunder will survive any expiration or
--------------------------------------
termination of this Agreement.
13. Miscellaneous.
13.1 Choice of Law and Forum. The Agreement shall be governed by and construed
-----------------------
in accordance with the laws of the State of California applicable to contracts
entered into and wholly to be performed within California, without regard to
conflicts of laws provisions thereof. The sole jurisdiction for all disputes
arising under or relating to this Agreement shall be the state and federal
courts located in Orange County, California. Each party hereby consents to the
personal jurisdiction of such courts and waives any objection it has or may have
to the personal jurisdiction of, and venue in, such courts. In any action to
enforce this Agreement, the prevailing party will be entitled to recover its
costs and reasonable attorneys' fees.
13.2 Amendment and Waiver. Except as otherwise expressly provided herein, any
--------------------
provision of this Agreement may be amended or modified and the observance of any
provision of this Agreement may be waived (either generally or any particular
instance and either retroactively or prospectively) only in the form of a
writing signed by both parties. The failure of either party to enforce its
rights under this Agreement at any time for any period shall not be construed as
a waiver of such rights.
13.3 Severability. In the event that any of the provisions of this Agreement
------------
shall be held by a court of competent jurisdiction to be unenforceable, such
provisions shall be limited or eliminated to the minimum extent necessary so
that this Agreement shall otherwise remain in full force and effect and
enforceable.
13.4 Headings/Construction. The headings and captions provided in this
---------------------
Agreement are for convenience only and are not to be used in the interpretation
of this Agreement.
13.5 Notices. All notices required to be given under this Agreement must be
-------
given in writing and delivered either by hand, certified mail, return receipt
requested, postage pre-paid, or Federal Express or other commercial overnight
delivery service with tracking capabilities, all delivery charges prepaid, and
addressed to the applicable party's address listed above or such other address
as to which the party has notified the other party in accordance with this
Section 13.5. Notice shall be deemed effective upon receipt, provided, however,
------------
that notice sent by mail shall be deemed received five (5) days after deposit in
the U.S. mails unless received sooner.
13.6 Remedies. Except where otherwise specified, the rights and remedies
--------
granted to a party under this Agreement are cumulative and in addition to, and
not in lieu of, any other rights or remedies which the party may possess at law
or in equity; provided that, in connection with any dispute hereunder.
13.7 Counterparts. The Agreement may be executed in multiple counterparts,
------------
each of which shall be deemed an original, but both of which together shall
constitute one and the same instrument. The Agreement may be executed by
facsimile signature and facsimile signatures shall be fully binding and
effective for all purposes and shall be given the same effect as original
signatures.
13.8 Relationship of Parties. FS and Onvia are independent contractors under
-----------------------
this Agreement. Each party shall be responsible for all of its employees and
agents and its labor costs and expenses arising in connection with the
performance of its obligations herein. Neither party has authority to enter
into agreements of any kind on behalf of the other.
13.9 Assignment; Binding Effect; Subcontracting. Neither party may assign this
------------------------------------------
Agreement or any of its rights or obligations hereunder without the prior
written consent of the other party; provided, however, that either party may
assign this Agreement to an acquirer of all or of substantially all of such
party's equity securities, assets or business relating to the
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<PAGE>
subject matter of this Agreement or to any entity controlled by, controlling or
under common control with such party. Any purported assignment agreements in
violation of this Section 3.9 shall be null, void and of no effect.
-----------
13.10 Force Majeure. If either party is delayed or prevented from performing,
-------------
or is unable to perform any of its obligations under this Agreement due to any
cause beyond the reasonable control of the party invoking this provision, the
affected party's performance shall be excused and the time for performance shall
be extended for the period of delay or inability to perform due to such
occurrence.
[Remainder of page intentionally left blank.]
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<PAGE>
13.11 Entire Agreement. This Agreement (which, together with all Work Orders,
----------------
appendices, exhibits and schedules hereto, constitute this "Agreement") is the
entire agreement between the parties and supercedes all previous agreements,
communications and course of dealings between the parties regarding the subject
matter hereof. The parties agree to be bound by the terms of this Agreement and
have caused this Agreement to be signed by a duly authorized representative.
FIRSTSOURCE CORP. ONVIA.COM, INC.
By: /s/ Joseph T. Cox By: /s/ Michael D. Pickett
---------------------------- -------------------------------
Name: Joseph T. Cox Name: Michael D. Pickett
--------------------------- -----------------------------
Title: President, COO Title: President, COO
------------------------- -----------------------------
Date: December 18, 2000 Date: December 18, 2000
-------------------------- -----------------------------
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