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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K/A
(Mark One)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the fiscal year ended January 1, 2000 or
[_] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from ____________to _______________.
Commission file number 0-16611
GLOBAL SPORTS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 04-2958132
(State or other jurisdiction (I.R.S. employer
of incorporation of organization) identification no.)
1075 FIRST AVENUE, KING OF PRUSSIA, PA 19406 (610)
265-3229 (Address of principal executive offices, including zip code,
telephone number, including area code)
Securities registered pursuant to Section 12(b) of the Act: None
Securities registered pursuant to Section 12(g) of the Act:
Common Stock, par value $.01 per share
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(Title of Class)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes [X] No [_]
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of the registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K/A or any
amendment to this Form 10-K/A. [_]
The aggregate market value of the registrant's voting stock held by
non-affiliates of the registrant as of the close of business on March 17, 2000,
was approximately $78,248,960.(1) There were 18,550,580 shares of the
registrant's Common Stock outstanding as of the close of business on March 17,
2000.
DOCUMENTS INCORPORATED BY REFERENCE
(Specific sections incorporated are identified under applicable items herein)
Certain information required for Part III of this Form 10-K/A is
incorporated herein by reference to the Proxy Statement for the 2000 Annual
Meeting of the Company's shareholders.
(1) This equals the number of outstanding shares of the registrant's Common
Stock reduced by the number of shares that may be deemed beneficially owned
by the registrant's officers, directors and shareholders owning in excess
of 10% of the registrant's Common Stock, multiplied by the last reported
sale price for the registrant's Common Stock on March 17, 2000. This
information is provided solely for record keeping purposes of the
Securities and Exchange Commission and shall not be construed as an
admission that any officer, director or 10% shareholder in the registrant
is an affiliate of the registrant or is the beneficial owner of any such
shares. Any such inference is hereby disclaimed.
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PURPOSE OF AMENDMENT
The Registrant previously filed certain of its material contracts as
exhibits to its Annual Report on Form 10-K for the fiscal year ended January 1,
2000. The Registrant requested confidential treatment as to certain portions of
certain of the contracts. The Registrant hereby amends Part IV of its Annual
Report on Form 10-K for the fiscal year ended January 1, 2000, as set forth in
the pages attached hereto.
PART IV
ITEM 14: EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
(a) 1. CONSOLIDATED FINANCIAL STATEMENTS
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Report of Independent Auditors--Deloitte & Touche LLP................................................. F-1
Consolidated Balance Sheets as of December 31, 1998 and January 1, 2000............................... F-2
Consolidated Statements of Operations for the Fiscal Years Ended December 31, 1997, December
31, 1998 and January 1, 2000.......................................................................... F-3
Consolidated Statements of Stockholders' Equity (Deficiency) for the Fiscal Years Ended
December 31, 1997, December 31, 1998 and January 1, 2000.............................................. F-4
Consolidated Statements of Cash Flows for the Fiscal Years Ended December 31, 1997, December
31, 1998 and January 1, 2000.......................................................................... F-5
Notes to Consolidated Financial Statements............................................................ F-6
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2. FINANCIAL STATEMENT SCHEDULES
All schedules have been omitted since the required information is
included in the financial statements or the notes thereto or is
not applicable or required.
3. EXHIBITS
2.1/(1)/ Securities Purchase Agreement dated June 21, 1995 by and
between the Company and MR Acquisitions, Inc.
2.2/(2)/ First Amendment to Securities Purchase Agreement by and
between the Company and MR Acquisitions, Inc. dated July
31, 1995.
2.3/(3)/ Second Amended and Restated Agreement and Plan of
Reorganization, as amended, among RYKA Inc., a Delaware
corporation, KPR Sports International, Inc., a
Pennsylvania corporation, Apex Sports International,
Inc., a Pennsylvania corporation, MR Management, Inc., a
Pennsylvania corporation, and Michael G. Rubin.
2.4/(4)/ Stock Purchase Agreement dated as of May 12, 1998 by and
among Global Sports, Inc., DMJ Financial Inc., James J.
Salter, Kenneth J. Finkelstein and certain other
individuals and entities.
2.5/(5)/ Asset Purchase Agreement, dated December 29, 1999, among
American Sporting Goods Corporation and RYKA Inc., KPR
Sports International, Inc., G.S.I., Inc., Apex Sports
International, Inc. and Global Sports, Inc.
2.6/(6)/ Acquisition Agreement, dated September 24, 1999, as
amended, among the Company, Gen-X Acquisition (U.S.),
Inc., Gen-X Acquisition (Canada) Inc., DMJ Financial,
Inc., James J. Salter and Kenneth J. Finkelstein
3.1/(3)/ Amended and Restated Certificate of Incorporation of the
Company filed with the Secretary of State of the State
of Delaware on December 15, 1997.
3.2/(7)/ The Company's Bylaws, as amended.
4.1/(7)/ Specimen of Common Stock Certificate.
10.1/(8)/* 1987 Stock Option Plan.
10.2/(9)/* 1988 Stock Option Plan.
10.3/(10)/* 1990 Stock Option Plan.
10.4/(11)/* 1992 Stock Option Plan.
10.5/(12)/* 1993 Stock Option Plan.
10.6/(2)/* 1995 Stock Option Plan.
2
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10.7/(13)/* 1995 Non-Employee Directors' Stock Option Plan.
10.8*, ** 1996 Equity Incentive Plan (amended and restated as of
November 16, 1999).
10.9/(14)/* Deferred Profit Sharing Plan and Trust.
10.10/(15)/* 2000 Employee Stock Purchase Plan
10.11/(2)/* Employment Agreement dated July 31, 1995 by and between
the Company and Steven A. Wolf.
10.12/(16)/* Employment Agreement dated September 25, 1996 by and
between the Company and Michael G. Rubin.
10.13/(16)/* First Amendment to the Employment Agreement dated
September 25, 1996 by and between the Company and
Michael G. Rubin.
10.14/(17)/* Employment Agreement dated May 12, 1998 by and between
the Company and James J. Salter.
10.15/(17)/* Employment Agreement dated January 1, 1999 by and
between the Company and Arthur I. Carver.
10.16/(17)/* Employment Agreement dated February 24, 1999 by and
between the Company and Michael R. Conn.
10.17/(18)/* Employment Agreement dated March 28, 1999 by and
between the Company and Michael Golden.
10.18/(19)/* Employment Agreement dated August 9, 1999 by and
between the Company and Arthur H. Miller.
10.19*,** Employment Agreement dated January 10, 2000 by and
between the Company and Steven Davis.
10.20*,** Employment Agreement dated February 9, 2000 by and
between the Company and Jordan M. Copland.
10.21/(2)/ Registration Rights Agreement by and between the
Company and MR Acquisitions, Inc.
10.22/(19)/ Omnibus Services Agreement dated April 1, 1999 by and
between the Company and Organic, Inc.
10.23/(19)/ Amendment No. 1 to the Omnibus Services Agreement dated
April 1, 1999 by and between the Company and Organic,
Inc.
10.24/(19)/ Independent Contractor Services Agreement dated June
29, 1999 by and between the Company and Foundry, Inc.
10.25/(19)/ Addendum No. 1 to the Independent Contractor Services
Agreement dated June 29, 1999 by and between the
Company and Foundry, Inc.
10.26/(19)/ Agreement of Sale dated July 27, 1999 by and between
the Company and IL First Avenue Associates L.P. for
acquisition of property at 1075 First Avenue, King of
Prussia, PA.
10.27/(19)/ Advertising and Promotion Agreement dated October 3,
1999 by and between the Company and Yahoo! Inc.
("Yahoo").
10.28+ Amendment No. 1 to Advertising and Promotion Agreement
dated February 15, 2000 by and between the Company and
Yahoo.
10.29/(19)/ Transaction Management Services Agreement dated June
10, 1999 by and between the Company and Priority
Fulfillment Services, Inc.
10.30/(20)/ E-Commerce Agreement dated February 1, 1999 by and
between Global Sports Interactive, Inc. ("GSI") and
Michigan Sporting Goods Distributors, Inc. ("M C
Sports")
10.31** First Amendment to E-Commerce Agreement dated June 17,
1999 by and between GSI and MC Sports.
10.32/(20)/ E-Commerce Management Agreement dated March 10, 1999 by
and between GSI and The Athlete's Foot Stores, Inc.
10.33/(20)/ E-Commerce Agreement dated March 23, 1999 by and
between GSI and Dunham's Athleisure Corporation
("Dunham's").
10.34** Amendment to E-Commerce Agreement dated May 25, 1999 by
and between GSI and Dunham's.
10.35** Amendment to E-Commerce Agreement dated December 5,
1999 by and between GSI and Dunham's.
10.36/(20)/ E-Commerce Management Agreement dated March 31, 1999 by
and between GSI and Sport Chalet, Inc.
10.37/(20)/ E-Commerce Venture Agreement dated May 7, 1999 by and
between GSI and The Sports Authority, Inc. ("TSA").
10.38/(20)/ Amendment No. 1 to the E-Commerce Venture Agreement
dated May 14, 1999 by and between GSI and TSA.
10.39/(20)/ License Agreement dated May 14, 1999 by and among TSA,
The Sports Authority Michigan, Inc. and
TheSportsAuthority.com, Inc. ("TSA.com").
10.40/(20)/ E-Commerce Services Agreement dated May 14, 1999 by and
between GSI and TSA.com.
10.41/(20)/ E-Commerce Agreement dated May 14, 1999 by and among
TSA and TSA.com.
10.42/(20)/ Agreement dated May 14, 1999, by and between TSA and
the Company.
10.43+ E-Commerce Management Agreement dated December 30, 1999
by and between GSI and Oshman's Sporting Goods, Inc.-
Services.
10.44+ Strategic Alliance Agreement dated February 28, 2000 by
and among GSI and Bluelight.Com LLC.
23.1** Consent of Independent Auditors.
27.1** Financial Data Schedule (electronic filing only).
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** Previously filed.
* Management contract or compensatory plan or arrangement
3
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+ Confidential treatment has been requested as to certain portions of
this exhibit. The omitted portions have been separately filed with
the Securities and Exchange Commission.
/(1)/ Incorporated by reference to the Company's Current Report on Form 8-K
dated June 21, 1995.
/(2)/ Incorporated by reference to the Company's Current Report on Form 8-K
dated July 31, 1995.
/(3)/ Incorporated by reference to the Company's Definitive Proxy Materials
filed November 12, 1997.
/(4)/ Incorporated by reference to the Company's Current Report on Form 8-K
dated May 27, 1998.
/(5)/ Incorporated by reference to the Company's Current Report on Form 8-K
dated January 13, 2000.
/(6)/ Incorporated by reference to the Company's Quarterly Report on Form
10-Q/A for the nine-month period ended September 30, 1999, filed
March 21, 2000.
/(7)/ Incorporated by reference to the Company's Registration Statement
No. 33-33754.
/(8)/ Incorporated by reference to the Company's Registration Statement
No. 33-19754-B.
/(9)/ Incorporated by reference to the Company's Registration Statement
No. 33-27501.
/(10)/ Incorporated by reference to the Company's Quarterly Report on Form
10-Q for the nine-month period ended September 30, 1990.
/(11)/ Incorporated by reference to the Company's Annual Report on Form 10-K
for the fiscal year ended December 31, 1991.
/(12)/ Incorporated by reference to the Company's Form S-8 Registration
Statement filed on January 3, 1994.
/(13)/ Incorporated by reference to the Company's Proxy Statement filed on
October 13, 1995 in connection with the 1995 Special Meeting in lieu
of Annual Meeting held on November 15, 1995.
/(14)/ Incorporated by reference to the Company's Quarterly Report on Form
10-Q for the three-month period ended March 31, 1998.
/(15)/ Incorporated by reference to the Company's Preliminary Proxy
Statement filed on March 22, 2000 in connection with the 2000 Annual
Meeting.
/(16)/ Incorporated by reference to the Company's Annual Report on Form 10-K
for the year ended December 31, 1997.
/(17)/ Incorporated by reference to the Company's Annual Report on Form 10-K
for the year ended December 31, 1998.
/(18)/ Incorporated by reference to the Company's Quarterly Report on Form
10-Q for the three-month period ended March 31, 1999.
/(19)/ Incorporated by reference to the Company's Quarterly Report on Form
10-Q for the nine-month period ended September 30, 1999.
/(20)/ Incorporated by reference to the Company's Current Report on Form 8-K
dated December 28, 1999.
(b) REPORTS ON FORM 8-K
The Company filed a Current Report on Form 8-K on December 28, 1999
reporting that it entered into exclusive agreements to operate the e-commerce
businesses of certain sporting goods retailers.
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SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities and
Exchange Act of 1934, the registrant has duly caused this Amendment to be signed
on its behalf on the date indicated by the undersigned thereunto duly
authorized.
GLOBAL SPORTS, INC.
Date: April 21, 2000 By: /s/ Michael G. Rubin
-----------------------------
Michael G. Rubin,
Chairman and Chief Executive
Officer
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EXHIBIT 10.28
Confidential Treatment has been requested with respect to portions of the
agreement indicated with an asterisk [*]. A complete copy of this agreement,
including the redacted terms, has been separately filed with the Securities and
Exchange Commission.
AMENDMENT #1
ADVERTISING AND PROMOTION AGREEMENT
This Amendment #1 (this "Amendment") is entered into as of February 15,
2000 (the "Amendment Effective Date") by and between Yahoo! Inc., a Delaware
corporation ("Yahoo") and Global Sports Interactive, Inc., a Pennsylvania
Corporation ("Global Sports") and amends the Advertising and Promotion Agreement
entered into between Yahoo and Global Sports as of October 3, 1999 (the
"Agreement"). Unless otherwise expressly defined herein, all capitalized terms
and Section references used herein shall have the meanings set forth in the
Agreement.
WHEREAS, as of the Amendment Effective Date, Yahoo and Global Sports desire
to limit Global Sports' exclusivity rights under Section 11 of the Agreement;
WHEREAS, as of April 1, 2000, Yahoo and Global Sports desire to terminate
Yahoo's obligation to promote the Global Sports Links under Sections 2, 3, 4.2,
5, 6, 7 and 8 of the Agreement;
WHEREAS, as of April 1, 2000, Yahoo and Global Sports desire that Yahoo
promote the Global Sports Sports & Recreation Shopping Links (as defined below);
WHEREAS, as of the Amendment Effective Date, Yahoo and Global Sports desire
that Yahoo display the Global Sports Banner as set forth below and in Yahoo
Insertion Order No. 72687.
WHEREAS, Yahoo and Global Sports desire to alter the compensation terms set
forth in Section 13 of the Agreement;
NOW THEREFORE, in consideration of the mutual promises contained in this
Amendment and the Agreement, Yahoo and Global Sports hereby agree to amend the
Agreement as follows:
1. In Section 1 of the Agreement, the definition of the word "Term" shall be
replaced by the following definition and the word "Amendment Effective Date"
shall have the following meaning:
"Term" shall mean the period beginning on the Effective Date and continuing
----
through December 31, 2000 or until this Agreement is otherwise terminated
pursuant to Section 14.
"Amendment Effective Date" shall mean February 15, 2000.
------------------------
2. In Section 1 of the Agreement, the following definition shall be added:
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"Global Sports Sports & Recreation Shopping Links" shall mean all of the
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Paid Advertising provided in the Sports and Recreation category Pages of
Yahoo Shopping (including the Global Sports Charter Shopping
Sponsorship)_ with the following exceptions: (i) only [*] of the Paid
Advertising in the Yahoo Shopping Outdoor area; (ii) only [*] of the Paid
Advertising in the Yahoo Shopping Golf area; (iii) only [*] of the Paid
Advertising in the Yahoo Shopping Sports Supplements area; (iv) only [*] of
the Paid Advertising in the Yahoo Shopping Sports Memorabilia area.
3. In Section 1 of the Agreement, the definition of the word "Page View" shall
be replaced in its entirety by the following definition:
"Page View" shall mean a user's request for a Page as measured by Yahoo's
advertising reporting system. Global Sports acknowledges and agrees that
multiple Global Sports Links on the same Page requested by a user (e.g.,
Sports and Recreation category Pages of Yahoo Shopping) could result in
multiple Page Views being generated; provided that, Yahoo agrees that
multiple Page Views will not be counted for multiple Global Sports Links
appearing on Global Sports Banner Pages and Global Sports Button Pages.
4. Section 9 of the Agreement shall be replaced in its entirety with the
following:
Between the Effective Date and March 31, 2000, Yahoo will deliver [*]
Global Sports E-Mails through the Yahoo! Delivers program. In all cases,
Global Sports E-Mails shall be delivered only (x) to those registered users
of Yahoo's U.S. targeted e-mail service that have indicated during the
registration process for such service a willingness to receive promotional
solicitations via Yahoo Mail; and (y) in accordance with Yahoo's privacy
policy. The text of the Global Sports E-Mail shall be provided by Global
Sports, consistent with Yahoo's standard policies and guidelines for such
messages as set forth in Exhibit O, and shall be subject to Yahoo's prior
---------
approval (which shall not be unreasonably withheld). Yahoo will provide
Global Sports with three agreed-upon attributes (e.g., age, gender,
occupation) that may be used to target to registered users who receive the
Global Sports E-Mails.
5. Section 11 of the Agreement shall be replaced in its entirety with the
following:
11.1 Beginning on the Amendment Effective Date and continuing until
December 31, 2000, Yahoo shall not [*] for the benefit of [*] in the [*].
The parties acknowledge and agree that, other than expressly set forth in
this Section 11.1, Yahoo shall not be restricted in any manner from
promoting any entity (including, but not limited to, Mammoth Golf and
professional sports leagues) on the Yahoo Properties.
11.2 Global Sports acknowledges that Yahoo has existing contractual
obligations with the merchants set forth on Exhibit H ("Existing
---------
Obligations") and that notwithstanding anything to the contrary in this
Agreement, Yahoo shall be permitted to fulfill the Existing Obligations
without being considered to be in breach of its obligations under this
Agreement. Further, under no circumstances shall anything in this Section
11 be deemed to restrict in any manner Yahoo's ability to (i) integrate any
editorial content (other than
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branded content that may be provided by Global Sports Competitors) in any
Yahoo Property, or (ii) include links to any entity in any directory,
merchant listing or other shopping service or feature on any Yahoo
Property. To the extent that it is not contractually obligated to do so,
Yahoo agrees that it will not, in a manner inconsistent with Yahoo's
obligations under Section 11, (x) extend or renew an Existing Obligation,
or (y) consent to the extension or renewal of an Existing Obligation if
Yahoo may withhold such consent in its sole discretion.
6. Effective April 1, 2000, Section 12 of the Agreement shall be deleted (and
all obligations therein shall be deemed fulfilled) and replaced in its entirety
with the following:
12.1 Beginning on April 1, 2000 and continuing through December 31, 2000,
Yahoo shall provide Global Sports the Global Sports Sports & Recreation
Shopping Links. Yahoo shall guarantee delivery of [*] Page Views of the
Global Sports Sports & Recreation Shopping Links.
12.2 Between April 1, 2000, and December 31, 2000, Yahoo shall provide the
Global Sports Banner on a rotating basis on the Global Sports Banner Pages.
Yahoo shall guarantee delivery of [*] Page Views of such Global Sports
Banner. For purposes of this Section 12.2, Global Sports Banner Pages shall
mean: (i) those Pages displayed upon a user's searching the Yahoo Main Site
for a keyword set forth on Exhibit 1 to Amendment #1 to this Agreement,
dated as of February 15, 2000 ("Amendment #1"); and (ii) those Pages within
the Yahoo Main Site categories set forth on Exhibit 1 to Amendment #1.
12.3 In the event that Yahoo fails to deliver the minimum number of Page
Views as set forth above at the expiration of the Term, Yahoo will "make
good" the shortfall [*] after the end of the Term until such Page View
obligation is satisfied. If Yahoo is unable to fulfill its Page View
obligations through the original promotion during this additional period,
Yahoo will then have an additional [*] to deliver the required number of
Page Views through a comparable promotion acceptable to Global Sports (such
three month period, together with the six month period described in the
preceding sentence, being referred to collectively as the "Make Good
Period"). The provisions set forth in this Section 12.3 set forth the
entire liability of Yahoo, and Global Sports' sole remedy, for Yahoo's
breach of its Page View obligations set forth in Sections 12.1 and 12.2
during the Term. For clarity, the parties acknowledge that the exclusivity
provisions of Section 11 shall not extend beyond the Term and that the sole
remedy set forth above shall not apply to a failure by Yahoo to fulfill its
Page View obligations during the Make Good Period.
12.4 During the Term, Yahoo will provide Global Sports access to an
electronic database that tracks the delivery of Page Views under this
Agreement. Such database will be updated in accordance with Yahoo's
standard updating procedures at least once per Quarter.
7. Sections 13.1, 13.2, 13.3, 13.4, and 13.5 of the Agreement shall be deleted
(and all obligations therein shall be deemed fulfilled) and replaced in
their entirety with the following. The parties expressly acknowledge and
agree that Global Sports' obligation to
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deliver the Barter Media pursuant to Section 13.9 of the Agreement shall
remain in full force and effect.
13.1 Within five (5) business days of the Amendment Effective Date, Yahoo
shall [*] to Global Sports [*] of the Slotting Fee.
13.2 In consideration of Yahoo's performance and obligations as set forth
herein under Section 5 of Amendment #1, Global Sports will compensate
Yahoo in an amount equal to [*]. Such fee shall be due and paid to
Yahoo as follows: (i) [*] on April 1, 2000; (ii) [*] on May 1, 2000;
(iii) [*] on June 1, 2000; (iv) [*] on July 1, 2000; (v) [*] on August
1, 2000; (vi) [*] on September 1, 2000; (vii) [*] on October 1, 2000;
(viii) [*] on November 1, 2000; (ix) [*] on December 1, 2000.
13.3 Revenue Share. In addition to the fees set forth in Section 13.2
-------------
above, Global Sports shall pay to Yahoo a non-refundable, non-
creditable fee equal to [*] percent ([*]%) of any Global Sports
Revenue earned beginning on April 1, 2000, and continuing through the
remainder of the Term (the "Revenue Share Fee"). Yahoo acknowledges
and agrees that all revenue share fees in connection with Global
Sports Revenue earned prior to April 1, 2000 shall be deemed
fulfilled. In accordance with the definition of Global Sports Revenue,
it is understood that Global Sports Revenue does not include revenue
from sales made through the Global Sports Site (as opposed to the
Merchant Pages, which are displayed by Yahoo through a proxy server).
The Revenue Share Fee shall be paid by Global Sports to Yahoo on a
quarterly basis within the later of (i) thirty (30) days following the
last day of each calendar quarter of the Term, and (ii) ten (10) days
following Global Sports' receipt of a Yahoo's written invoice
calculating: (i) the total dollar amount of Global Sports Revenue
earned during the applicable period, and (ii) a calculation of the
Revenue Share Fee.
8. Effective April 1, 2000, Yahoo's obligations to promote the Global Sports
Links under Sections 2, 3, 4.2, 5, 6, 7 and 8 of the Agreement shall cease
and all obligations therein and relating thereto shall be deemed fulfilled.
9. Section 14.4(a) of the Agreement shall be deleted and Global Sports shall
have no right to terminate the Agreement (as amended by this Amendment)
pursuant to such Section. The references to Section 14.4(a) shall be
deleted from Sections 13.9 and 14.6.
10. Section 14.5 of the Agreement shall be deleted and Global Sports shall have
no right of first presentation pursuant to such Section.
11. Exhibit K of the Agreement shall be replaced in its entirety by Exhibit K
--------- ---------
attached hereto
12. Global Sports acknowledges and agrees that during the Term, the Global
Sports Retailers shall continue to participate in Yahoo's Remote Merchant
Integration program in accordance with the terms of the Remote Merchant
Integration Program Agreement.
13. In accordance with Yahoo Insertion Order No. 72687, Yahoo shall deliver a
minimum of [*] Page Views of the Global Sports Banner. Yahoo will deliver
such Page Views as follows: (i) at least [*] Page Views between the
Amendment Effective Date and March
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31, 2000; and (ii) any remaining Page Views by June 30, 2000. No less than
[*] of such Page Views shall be delivered in banner positions rotating
throughout the Yahoo Main Site, with the remainder being delivered in
banner positions rotating throughout the Yahoo Properties.
14. Except as expressly amended as set forth herein, the Agreement shall remain
in full force and effect in accordance with its terms.
[signature page follows]
5
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This Amendment has been executed by the duly authorized representatives of
the parties, effective as of February 15, 2000.
YAHOO! INC. GLOBAL SPORTS INTERACTIVE, INC.
By: ________________________ By: _________________________
Name: ______________________ Name: _______________________
Title: _____________________ Title: ______________________
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Exhibit 1
Keywords:
Categories:
7
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EXHIBIT K
Global Sports Competitors
-------------------------
[*]
Entities acquired by any of the above named companies shall be included as
Global Sports Competitors provided that Yahoo does not have any contractual
obligations with respect to such an acquired entity.
8
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Exhibit 10.43
Confidential Treatment has been requested with respect to portions of the
agreement indicated with an asterisk [*]. A complete copy of this agreement,
including the redacted terms, has been separately filed with the Securities and
Exchange Commission.
Global Sports Interactive, Inc.
______________________
E-Commerce Agreement
between
Global Sports Interactive, Inc.,
and
Oshman's Sporting Goods, Inc.-Services
<PAGE>
Table of Contents
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1 Definitions.............................................................................. 2
2 Term..................................................................................... 4
3 Operation of the Web Site................................................................ 5
3.1 Creation and Maintenance of the Web Site..................................... 5
3.1.1 GSI Obligations.................................................. 5
3.1.2 Scalability, Security, and Redundancy............................ 6
3.1.3 Quality Standard................................................. 6
3.1.4 Retailer Approval of Initial Web Site............................ 6
3.1.5 Retailer Approval of Web Site Modifications...................... 6
3.1.6 Web Site Address................................................. 6
3.1.7 Retailer Information............................................. 6
3.1.8 Retailer Information Updates..................................... 7
3.1.9 License of the URL and Retailer's Content........................ 7
3.1.10 Maintenance of the Web Site...................................... 7
3.2 Sale and Promotion of Merchandise on the Web Site............................ 8
3.3 GSI's Supply of Certain Online Merchandise................................... 8
3.3.1 Special Make-Ups................................................. 8
3.3.2 Closeout Merchandise and Markdowns............................... 9
3.3.3 Form of Communication............................................ 9
3.4 Land Based Stores Gift Certificates.......................................... 9
3.5 Cooperation.................................................................. 9
3.6 Land Based Store Kiosks...................................................... 9
3.7 Payment and Accounting of Revenue Share to Retailer.......................... 10
3.8 Service of Online Customers.................................................. 10
3.9 Audit........................................................................ 11
3.10 Return of Online Merchandise................................................. 11
3.11 Retailer Personnel Discounts................................................. 12
3.12 Promotions................................................................... 12
3.13 Retailer Project Manager..................................................... 12
3.14 Government Notices........................................................... 12
4 Online Data and Databases................................................................ 12
4.1 Ownership of Data............................................................ 12
4.2 Ownership of Databases....................................................... 13
4.3 Delivery of Customer Data to Retailer........................................ 13
5 Advertising and Marketing................................................................ 13
6 Advertising Co-op and Discretionary Funds................................................ 14
7 Confidentiality.......................................................................... 14
8 Press Releases........................................................................... 15
9 Exclusive Web Agreement.................................................................. 16
10 Use of URL, Trademarks, Service Marks, Trade Names, and Logos............................ 17
11 Property Rights and Ownership............................................................ 17
12 Representations and Warranties........................................................... 18
13 Disclaimer of Warranties................................................................. 19
14 Indemnification.......................................................................... 19
15 Insurance................................................................................ 20
16 Termination and Other Remedies........................................................... 20
17 Limitations of Liability................................................................. 22
18 Discontinuance or Regulation of the Internet; Termination of Access to the Web Site...... 23
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19 Force Majeure........................................................................... 23
20 Notices................................................................................. 23
21 Assignment.............................................................................. 24
22 Independent Contractors................................................................. 24
23 Waiver.................................................................................. 24
24 Governing Law........................................................................... 24
25 Jurisdiction............................................................................ 24
26 Binding Effect.......................................................................... 24
27 Severability............................................................................ 25
28 Headings................................................................................ 25
29 Entire Agreement........................................................................ 25
30 Counterparts............................................................................ 26
</TABLE>
Schedules
- ---------
Schedule 1: Web Site Development Agreement
Schedule 2: URL Integration
Schedule 3: Marks
Schedule 4: Retailer Facilities
Schedule 5: Customer Data
Schedule 6: Secondary URLs
Schedule 7: GSI Infrastructure and Practices
Schedule 8: Database Tools
Schedule 9: Consignment Terms
ii
<PAGE>
E-Commerce Agreement
This E-Commerce Agreement dated the 30th day of December, 1999, ("Effective
Date") by and between Global Sports Interactive, Inc., ("GSI") a Pennsylvania
corporation with an address of 1075 First Avenue, King of Prussia, Pennsylvania
19406 and Oshman's Sporting Goods, Inc.-Services (Retailer") a Delaware
corporation with an address of 2302 Maxwell Lane, Texas 77023.
WHEREAS, GSI is in the business of creating and operating e-commerce
enabled Web sites on behalf of retailers, providing for those vendors the
technology, expertise, infrastructure, and operational support necessary to
offer e-commerce to their customers;
WHEREAS, Retailer is in the business of selling sports equipment, apparel,
footwear, and other related items to consumers through land-based retail stores;
WHEREAS, Retailer has made a substantial investment to establish its trade
name among consumers and suppliers so as to create a retail image connoting a
specific manner in which merchandise is presented and sold throughout Retailer's
network of land based retail stores;
WHEREAS, Retailer desires to extend its lines of retail distribution
through an e-commerce enabled Web site bearing its trade name and trademarks;
WHEREAS, both Retailer and GSI recognize that the protection of Retailer's
trade name, trademarks, and goodwill, as well as the overall success of the Web
site, depend on consumers' perceiving the Web Site to be an Internet extension
of Retailer's land-based stores that is as consistent as possible with those
stores with respect to merchandise quality, availability, pricing, terms of
sale, and other aspects of the retail purchasing experience;
WHEREAS, Retailer and GSI expect that the Web Site will complement
Retailer's land-based stores, enhancing Retailer's competitive position relative
to other sellers of the same or similar merchandise by offering to Retailer's
customer's an Internet alternative to in-store shopping;
WHEREAS, Retailer and GSI desire to have GSI provide to Retailer a complete
Web site solution that shall be the exclusive means by which Retailer will
conduct e-commerce through the Web during the term of this Agreement; and
WHEREAS, Retailer desires to obtain e-commerce capability from GSI in a
manner that reserves to Retailer ultimate control over merchandising, sales,
pricing, and customer service practices, policies, and strategies that may be
critical to the protection of Retailer's trade name, trademarks, and goodwill
and that will allow the Internet initiative to compliment, and not hinder,
Retailer's in-store shopping strategies.
NOW, THEREFORE, in reliance upon the recitals above (which are made a part
of the Agreement below) and in consideration of the agreements, representations,
and warranties in this Agreement, Retailer and GSI (each a "Party" and
collectively, the "Parties",) intending to be legally bound, agree as follows.
1 Definitions
<PAGE>
Capitalized terms have the following meanings in this Agreement.
1.1 "Advertising Co-op and Discretionary Funds" means amounts earned by or
-----------------------------------------
allocated to a Party by its vendors, the purpose of which is to
support the Party's advertising and promotional programs.
1.2 "Affiliate" means, as to any Person, any other Person controlled by,
---------
under common control with or controlling such Person, directly or
indirectly (through one or more intermediaries or otherwise). Without
limiting the foregoing, as to any Person that is an entity, a Person
shall be deemed an affiliate of such entity if (a) such Person
beneficially owns or holds, directly or indirectly (through one or
more intermediaries or otherwise), more than 10% of the voting or
equity securities of such entity or such entity beneficially owns or
holds, directly or indirectly (through one or more intermediaries or
otherwise), more than 10% of the voting or equity securities of such
Person or (b) is currently or becomes an executive officer or director
of such Person (provided, however, that a Person shall not be deemed
an affiliate solely by reason of this (b) if the Person has not been
an officer or director of the entity at anytime on or within one year
of the date of determination. The term "beneficial ownership" has the
meaning given to it in Rule 13d-3, and the term "officer" has the
meaning given to it in Rule 16a-1(f), both promulgated by the
Securities and Exchange Commission under the Securities Exchange Act
of 1934, as amended, and both as in effect on the date hereof.
1.3 "Categories" means the various types of product groups offered for
----------
sale in Land Based Stores.
1.4 "Closeout Merchandise" means end-of-season or excess merchandise that
--------------------
is priced at a greater than normal discount.
1.5 "Closeout Site Pages" means the those Web pages incorporated into the
-------------------
Web Site that offer primarily Closeout Merchandise and Markdowns.
1.6 "Content" means all text, images, pictures, sound, graphics, video and
-------
other information or data appearing in or through the pages of the Web
Site.
1.7 "Customer" means a Person who accesses the Web Site in any manner,
--------
whether or not a purchase is made.
1.8 "Customer Information" means all data and information provided by or
--------------------
obtained from Customers through the Web Site and all information
generated or obtained by virtue of the use of the Web Site by
Customers, including without limitation, all Customer Data.
1.9 "Governmental Authority" means any (a) nation, state, county, city,
----------------------
town, village, district, or other jurisdiction of any nature; (b)
federal, state, local, municipal, foreign, or other government; (c)
governmental or quasi-governmental authority of any nature (including
any governmental agency, branch, department, official, or entity and
any court or other tribunal); (d) multi-national organization or body;
or (e) body exercising, or entitled to exercise, any administrative,
executive, judicial, legislative, police, regulatory, or taxing
authority or power of any nature.
1.10 "GSI Content" is defined in Section 1.6 of Schedule 1 attached to this
-----------
Agreement.
1.11 "GSI Products" is defined in Section 1.7 of Schedule 1 attached to
-------------
this Agreement.
Page 2 of 45
<PAGE>
1.12 "In Line Merchandise" means merchandise available to be carried by
-------------------
Retailer in its Land Based Stores.
1.13 "Intellectual Property Rights" means any and all now known or
----------------------------
hereafter known tangible and intangible (a) rights associated with
works of authorship throughout the universe, including but not limited
to copyrights, moral rights, and mask-works, (b) trademark and trade
name rights and similar rights, (c) trade secret rights, (d) patents,
designs, algorithms and other industrial property rights, (e) all
other intellectual and industrial property rights of every kind and
nature throughout the universe and however designated (including
domain names, logos, "rental" rights and rights to remuneration),
whether arising by operation of law, contract, license, or otherwise,
and (f) all registrations, initial applications, renewals, extensions,
continuations, divisions or reissues hereof now or hereafter in force
(including any rights in any of the foregoing).
1.14 "Internet" means the system of computer networks interconnected with
--------
routers, worldwide in scope, that facilitates data communication
services such as remote login, file transfer, electronic mail, and the
Web, and any successor to such system.
1.15 "Land Based Stores" means all sites and all channels other than the
-----------------
Web Site, whether a walk-in store or otherwise, from or through which
Retailer conducts business.
1.16 "Land Based Stores Gift Certificates" means gift certificates, pre-
-----------------------------------
programmed cards, and other forms of credit in fixed denominations
redeemable only in Land Based Stores.
1.17 "Launch Date" means the date on which the Web Site is fully
-----------
functional, and is first available to the public on the Web.
1.18 "Law" means any federal, state, local, municipal, foreign,
---
international, multinational, or other administrative order,
constitution, law, ordinance, principle of common law, regulation,
statute, or treaty of any Governmental Authority.
1.19 "Link" means a hypertext link to any Web site from or to the Web Site.
----
1.20 "Markdowns" means merchandise in Retailer's inventory offered for sale
---------
at a price permanently and substantially reduced from its original
price.
1.21 "Marks" is defined in Section 10 of this Agreement.
-----
1.22 "Online Merchandise" means merchandise to be sold through the Web
------------------
Site.
1.23 "Other GSI Retailers" means sporting goods retailers (a) that own,
-------------------
franchise, or operate land based stores through which sporting goods
are sold; and (b) whose Web site is owned and operated by GSI.
1.24 "Person" means, whether or not capitalized, any individual,
------
corporation (including any non-profit corporation), general or limited
partnership, limited liability company, joint venture, estate, trust,
association, organization, labor union, or other entity or
governmental body.
Page 3 of 45
<PAGE>
1.25 "Project Manager" means a representative of Retailer whose primary
---------------
duties are to supply Retailer Content to GSI and to coordinate with
GSI regarding Retailer Content.
1.26 "Retailer Content" is defined in Section 1.10 of Schedule 1 attached
----------------
to this Agreement including without limitation, all information
provided by Retailer for the operation of the Web Site.
1.27 "Retailer's Net Cost" means, with respect to Special Make-Ups, the
-------------------
aggregate of (i) amount paid by Retailer to manufacturer for such
merchandise, plus (ii) Retailer's actual costs incurred in connection
with such goods (including without limitation transportation, customs
duties, finance and insurance, agent commissions, and freight
forwarding costs), plus (iii) an amount for overhead and handling
equal to [*] of the sum of the amounts in clauses (i) and (ii), plus
(iv) an amount for advertising co-op equal to [*] of the sum of the
amounts in clauses (i) and (ii).
1.28 "Revenue Share" is defined in Section 3.7 of this Agreement.
-------------
1.29 "Secondary URL" means uniform resource locators other than the URL
-------------
that include one or more of Retailer's trade names, trademarks, or
service marks or any variant of such trade names, trademarks, or
service marks or other references to Retailer or Retailer's business.
1.30 "Special Make-Ups" means merchandise manufactured exclusively for
----------------
Retailer and includes without limitation, such merchandise sold under
a Retailer's trademark.
1.31 "Specifications" means the prescribed standards, descriptions, and
--------------
characteristics (including look and feel requirements) relating to the
Web Site set forth in Schedule 1 or otherwise described in this
Agreement, as modified from time to time as provided in this
Agreement.
1.32 "Term" is defined in Section 2.1 of this Agreement.
----
1.33 "URL" means the uniform resource locator of the Web Site.
---
1.34 "Web" means the Internet client-server hypertext distributed
---
information retrieval system known as the World Wide Web.
1.35 "Web Site" is defined in Section 1.12 of Schedule 1 attached to this
--------
Agreement, and includes without limitation, the Closeout Site Pages.
2 Term
2.1 Term. The Term of this Agreement shall commence upon the execution of
----
this Agreement and shall expire at 1700 G.M.T. on [*], unless
terminated in accordance with Section 16 of this Agreement. GSI shall
advise Retailer thirty days prior to the expected Launch Date. The
Launch Date shall occur during the period beginning [*], and ending
240 days after the Effective Date ("Commencement Period"). The
Commencement Period shall be extended to the extent directly delayed
by Retailer's failure to comply with the Milestone Delivery Schedule
set forth on Attachment B to Schedule 1 attached to this Agreement and
the Production Schedule to be agreed upon by the Parties; provided,
however, that, without expanding the foregoing, delays associated with
the Retailer's objections (or revisions to the Web Site based on
Retailer's objections)
Page 4 of 45
<PAGE>
pursuant to Section 3.1.4 shall not be deemed to be a failure to
comply with the Milestone Delivery Schedule. Each Party shall give the
other Party prompt notice of any failure to comply with the Milestone
Delivery Schedule that occurs or is reasonably likely to occur.
3 Operation of the Web Site
3.1 Creation and Maintenance of the Web Site.
----------------------------------------
3.1.1 GSI Obligations. GSI, at its own expense, shall create,
---------------
maintain, host and operate the Web Site in accordance with
this Agreement and Schedule 1 attached to this Agreement.
Through the Term, the Web Site shall use GSI's proprietary
engine that is used for GSI's other retailer sites and will
use other technologies consistent with current e-commerce
industry practice. No more frequently than annually, Retailer
may request that a mutually acceptable, independent third
party be engaged to review retail e-commerce Web sites
offering general merchandise to determine the methods of
operation, features, and functionality of such Web sites. The
cost of each such review shall be shared equally by the
Parties. Retailer may suggest to GSI methods of operating the
Web Site or that features or functionality be included in the
Web Site. GSI shall implement such methods, features, or
functionality that are implemented on [*] or more of the [*]
retail e-commerce Web sites offering general merchandise
ranked highest by Media Metrix or such other mutually
acceptable Person during the most recent monthly reporting
period. GSI shall implement such methods, features, or
functionality that are implemented on [*] or more of the [*]
retail e-commerce Web sites offering general merchandise
ranked highest by Media Metrix or such other mutually
acceptable Person during the most recent monthly reporting
period unless such method, feature, or functionality would be
inconsistent with GSI's reasonable business needs. Such
methods, features or functionality, as the case may be, shall
be added no later than six (6) months after GSI's receipt of
such suggestion from Retailer in writing; provided that in the
event that such methods, features or functionality cannot be
implemented reasonably within such six month period, then
within nine months from receipt of such notice so long as GSI
has commenced and proceeded diligently to said implementation
within a reasonable period. Notwithstanding the foregoing, GSI
is not required to implement any methods, features, or
functionality if the actual cost of adding such feature or
functionality would exceed [*] of the revenues on which the
Revenue Share is based for the immediately preceding 12 months
or if implementing the method, feature, or functionality would
be illegal, would result in the infringement or violation of
any third party's rights, would cause a breach of any
agreement to which GSI is a party, or would require GSI to
enter into a commercially unreasonable license. All upgrades
to GSI's proprietary engine shall be implemented for the Web
Site when the upgrades are made generally available for GSI's
other retailer Web sites. Any upgrade to GSI's proprietary
engine that has been in commercial use for an Other GSI
Retailer site for pre-release testing for more than 6 months
shall be made available for the Web Site.
3.1.2 Scalability, Security, and Redundancy. The Web Site shall be
-------------------------------------
scalable, secure, and GSI shall provide redundancy and
Customer response times all in accordance with the practices
employed by retail e-commerce Web sites offering general
merchandise as such practices may change from time to time.
Page 5 of 45
<PAGE>
Schedule 7 attached to this Agreement sets forth GSI's
infrastructure and practices as of the Effective Date that
will be implemented to support the Web Site.
3.1.3 Quality Standard. GSI shall operate the Web Site consistent
----------------
with the goodwill, quality, and brand image associated with
Retailer and the Marks.
3.1.4 Retailer Approval of Initial Web Site. GSI shall not launch
-------------------------------------
the Web Site without Retailer's approval of the appearance and
functionality of the proposed Web Site. GSI shall make
available to Retailer complete versions of the Web Site for
Retailer's review and acceptance. Retailer shall use all
commercially reasonable efforts to review and evaluate the Web
Site within 5 business days of its obtaining such access to
the Web Site but in no event more than 15 business days (the
"Acceptance Period"). The design, layout, and look and feel of
the Web Site (including without limitation the placement and
positioning of Marks, advertising and Links) (the "Template")
shall be subject to Retailer's approval in its sole
discretion; in all other cases, Retailer's approval shall not
be unreasonably withheld. The initial Web Site shall be deemed
approved if GSI does not receive Retailer's notice of
disapproval within 15 business days of such Web Site's
availability to Retailer. Retailer shall not disapprove any
aspect of the Web Site if such disapproval would result in the
material degradation of the performance of the Web Site.
3.1.5 Retailer Approval of Web Site Modifications No changes to the
-------------------------------------------
Marks, Retailer Content or Retailer information provided
pursuant to Section 3.1.7 and no changes to the approved
Template shall be made (including the placement and
positioning thereof) without Retailer's prior written
approval, which may be withheld in its discretion. Any other
material changes to the appearance and functionality of the
Web Site's user interface initiated after the Launch Date
shall be subject to the prior approval of Retailer, which
shall not be unreasonably withheld. Such changes shall be
deemed approved if GSI does not receive Retailer's notice of
disapproval within 7 business days of such changes'
availability to Retailer. Retailer shall not disapprove any
changes to the Web Site if such disapproval would result in
the material degradation of the performance of the Web Site.
3.1.6 Web Site Address. The URL shall be www.oshmans.com.
----------------
3.1.7 Retailer Information. GSI shall, at its cost and expense,
--------------------
incorporate in the Web Site any or all of the following
information (which shall for the purposes of Section 11 be
deemed Retailer Content ), as Retailer shall elect: corporate
information, store locator, public financial information,
press releases, community programs, employment opportunities
for store or corporate positions, vendor compliance policy,
Women & Sports, grants for girls program information and
registration, gift card registration, frequently asked
questions and a "contact us" section. Retailer shall provide
such information in a format acceptable to GSI and shall have
sole and complete control over the such information. The Links
on the Web Site to such information shall be on the Template
(as defined in Section 3.1.4).
3.1.8 Retailer Information Updates. Following the Launch Date,
----------------------------
Retailer shall have the right to update the Content provided
pursuant to Section 3.1.7 of this Agreement, and GSI shall
incorporate such updates at GSI's cost, as follows:
Page 6 of 45
<PAGE>
(a) Public Financial Information.
----------------------------
(i) Stock Prices. Stock prices will be updated daily
through a Link to another Web site offering such
information.
(ii) SEC Filings and Annual Reports. SEC filings will
be provided through a Link to another Web site
offering such information.
(iii) Stock prices and SEC filings and annual reports
will be provided only if available in a format
acceptable to GSI.
(b) Press Releases and Employment Opportunities. GSI shall
-------------------------------------------
permit Retailer directly to upload to the Web Site any
Retailer-created revisions to press releases and
employment opportunities for store or corporate
positions provided pursuant to Section 3.1.7 of this
Agreement
(c) Other Information. GSI shall, at no cost to Retailer,
-----------------
upload to the Web Site any Retailer-created revisions to
the corporate information, store locator, community
programs, vendor compliance policy, Women & Sports,
grants for girls program information and registration,
gift card registration, frequently asked questions, or
the "contact us" Content provided pursuant to Section
3.1.7 of this Agreement. Retailer may from time to time
provide other information, and GSI shall, at no cost to
Retailer, upload to the Web Site such other information
unless uploading such information would be inconsistent
with GSI's reasonable business needs.
3.1.9 License of the URL and Retailer's Content. Except as
-----------------------------------------
specifically provided on Schedule 6, Retailer grants to GSI
for the Term a nontransferable (except in connection with the
assignment of this Agreement), irrevocable license to use,
copy, modify, adapt, translate, create derivative works based
upon, sublicense, reproduce, distribute, publicly perform,
publicly display, and digitally perform the URL and any
Secondary URLs registered in Retailer's name to GSI and
designate GSI as the technical and billing contact for the URL
and all such Secondary URLs with the registrar. Retailer's
representatives shall be designated as the administrative and
other contacts with the registrar. GSI shall promptly pay any
fees and take all other steps as may be necessary to maintain
the URL and such Secondary URLs. Retailer grants to GSI a
license to use, copy, modify, adapt, translate, create
derivative works based upon Retailer Content, sublicense,
reproduce, distribute, publicly perform, publicly display, and
digitally perform Retailer Content in connection with GSI's
performance of its obligations under and in accordance with
this Agreement.
3.1.10 Maintenance of the Web Site. GSI shall maintain the Web Site
---------------------------
to keep it consistent with good practice associated with
retail e-commerce Web sites offering general merchandise as
such practices may change. Retailer shall cooperate with GSI
in the maintenance of the Web Site at GSI's cost and expense.
3.2 Sale and Promotion of Merchandise on the Web Site.
-------------------------------------------------
3.2.1 GSI may offer for sale on the Web Site any merchandise in any
Category. Notwithstanding anything contained herein to the
contrary, GSI shall not offer firearms for sale on the Web
Site. Upon Retailer's request based upon Retailer's reasonable
business needs, GSI [*] within a commercially reasonable
Page 7 of 45
<PAGE>
time. Upon Retailer's request, GSI shall [*], provided that
the number of styles of such merchandise shall not exceed [*]
in any year. GSI shall not promote on the Web Site any
merchandise that is not offered for sale on the Web Site or
not offered for sale in Land Based Stores. Upon Retailer's
request based upon Retailer's reasonable business needs, GSI
shall discontinue marketing promotions on the Web Site within
a commercially reasonable time.
3.2.2 Without limiting the generality of the foregoing, within the
Categories, GSI may offer for sale
(a) In Line Merchandise not offered for sale in the Land
Based Stores except for In Line Merchandise that
Retailer is not authorized by the manufacturer to sell
in its Land Based Stores; and
(b) Special Make-Ups; and
(c) Closeout Merchandise; and
(d) Markdowns; and
(e) Gift Certificates for Online Merchandise.
3.2.3 GSI may offer for sale Land Based Stores Gift Certificates.
These certificates shall be provided to GSI on consignment as
set forth in Section 3.4 of this Agreement.
3.2.4 When a written dealer agreement prohibits Retailer from
selling certain merchandise through the Web Site, [*].
3.3 GSI's Supply of Certain Online Merchandise.
-------------------------------------------
3.3.1 Special Make-Ups. Prior to ordering Special Make-Ups, Retailer
----------------
shall provide to GSI a description of such Special Make-Ups
and advise GSI of Retailer's price to GSI, quantity, and color
selection and size range of such Special Make-Ups. GSI may
purchase, and Retailer shall sell to GSI at estimated
Retailer's Net Cost, the Special Make-Ups, in quantities,
colors and sizes determined by GSI. GSI shall have five
business days after GSI's receipt of Retailer's notice of
availability to advise Retailer of the quantity of any of the
Special Make-Ups that it has elected to purchase. Special
Make-Ups purchased by GSI shall not be sold on any Web site
other than the Web Site.
3.3.1 Closeout Merchandise and Markdowns. Retailer may at its sole
----------------------------------
discretion offer Closeout Merchandise or Markdowns for sale on
consignment through the Web Site. Retailer shall ship such
Closeout Merchandise or Markdowns to GSI's fulfillment center.
Notwithstanding the foregoing, GSI shall not be required to
accept a number of styles of Closeout Merchandise and
Markdowns that is greater than [*] in the first two years of
the Agreement, and greater than [*] in the remaining years of
this Agreement. Retailer shall set the selling prices on the
Closeout Merchandise and Markdowns. Retailer shall receive [*]
of the proceeds from the sale of any Closeout Merchandise and
Markdowns received by GSI excluding amounts received for
taxes, delivery, handling, and net of returns, which shall be
calculated as follows: [*] of the sale price plus Retailer's
7.5% Revenue Share. By way of example only, if Retailer
consigns an athletic shoe to GSI with an original price of
$75.00 and a Closeout Merchandise or Markdown price of $50.00,
then when the athletic shoe is sold, Retailer shall receive
[*] ([*] of $50.00 and [*] of $50.00). GSI shall hold the
inventory of Closeout Merchandise or Markdowns In accordance
with Schedule 9 attached to
Page 8 of 45
<PAGE>
this Agreement and shall account to Retailer and remit to
Retailer amounts due under this Agreement, for the sale of any
Closeout Merchandise and Markdowns when it accounts to
Retailer for and remits the Revenue Share. The proceeds from
the sale of Closeout Merchandise and Markdowns shall not be
included in calculating Revenue Share.
3.3.2 Form of Communication. Any and all information required or
---------------------
permitted to be provided by one Party to the other pursuant to
this Section 3.3 shall be provided in a mutually acceptable
form.
3.4 Land Based Stores Gift Certificates. Retailer shall furnish
-----------------------------------
Land Based Stores Gift Certificates to GSI on consignment in
accordance with Schedule 9 attached to this Agreement in quantities
and denominations requested by GSI. Any Land Based Store Gift
Certificates not returned unsold to Retailer within 180 days after GSI
receipt of such Land Based Store Gift Certificates shall be deemed to
be sold by GSI and the face value of such Land Based Store Gift
Certificates shall be deemed proceeds received from the sale of Land
Based Store Gift Certificates. GSI shall remit to Retailer [*] of all
proceeds received from the sale of Land Based Stores Gift
Certificates, the balance being retained by GSI as its fee and to
cover all costs, including without limitation, credit card fees. GSI
shall remit to Retailer all amounts due from, account to Retailer for,
all sales of Land Based Store Gift Certificates concurrently with its
accounting to Retailer for the Revenue Share. The proceeds from the
sale of Land Based Store Gift Certificates shall not be included in
calculating Revenue Share.
3.5 Cooperation. The Parties acknowledge and agree that their mutual
-----------
cooperation and good faith are important to the success of the Web
Site and the implementation of Retailer's strategies. Accordingly,
each Party agrees reasonably to cooperate with, and to supply
information to, the other Party to facilitate the operation and
evaluation of the Web Site and implement Retailer's strategies.
3.6 Land Based Store Kiosks. By December 31, 2001, GSI shall have
-----------------------
installed terminals with access to the Web Site and from which
purchases can be made through the Web Site in each Land Based Store
with annual revenues for 1999 greater than [*]. GSI shall install such
terminals in other Land Based Stores when their annual revenues exceed
[*]. GSI shall maintain all such terminals at its own cost and
expense.
3.7 Payment and Accounting of Revenue Share to Retailer. All proceeds and
---------------------------------------------------
other compensation received through the Web Site other than proceeds
from the sales of Closeout Merchandise, Markdowns, and Land Based
Stores Gift Certificates shall be revenues of GSI. Retailer shall
receive a [*] share of the revenue received by GSI from the sale of
Online Merchandise other than Closeout Merchandise or Markdowns
excluding amounts received for taxes, delivery, handling, and net of
returns ("Revenue Share"). GSI shall properly remit any taxes due on
sales through the Web Site. Within ten (10) days after the end of each
GSI fiscal month during the Term (with the exception of December,
which period shall be thirty days), GSI shall account to Retailer for
the related Revenue Share due under this Agreement and shall remit to
Retailer such Revenue Share and shall account to Retailer for any
related taxes due and remitted by GSI.
Within ninety (90) days after the end of each GSI fiscal year, GSI
shall provide Retailer with a statement, certified by its independent
auditors, setting forth the Revenue Share earned by Retailer during
the prior GSI fiscal year and an accounting of the amounts due under
Sections 3.3.2 and 3.4. For a period of three years after Retailer's
receipt of such certified statement, Retailer may perform a single
audit of the books and records of
Page 9 of 45
<PAGE>
GSI only with respect to the Revenue Share earned during the related
GSI fiscal years. Such audit shall be conducted at GSI's principal
office located in the continental United States on two weeks' prior
notice to GSI. If the audit reveals that the Revenue Share or other
amounts due Retailer under this Agreement were understated, GSI shall
within thirty days of completion of the audit, pay to Retailer the
unpaid balance for the period audited plus interest at the prime rate
of interest reported in The Wall Street Journal on the date of the
audit's certification, which interest shall accrue from the date that
the related understated amounts were due. If the audit reveals that
the accounting by GSI is understated by more than [*] percent for the
related GSI fiscal year, GSI shall pay to Retailer (a) the unpaid
balance of the Revenue Share or other amounts due Retailer under this
Agreement for the period audited plus (b) interest at the rate of 18%,
which interest shall accrue from the date that the related understated
amounts were due plus (c) Retailer's reasonable costs of the audit.
3.8 Service of Online Customers. GSI shall be responsible for providing
---------------------------
all customer service relating to sales through the Web Site in
accordance with current e-commerce industry standards. GSI shall
provide online order tracking capability and toll-free telephone
ordering assistance to Customers. GSI shall use commercially
reasonable efforts to ship 98% of orders within 48 hours of GSI's
receipt of orders.
3.8.1 Independent Evaluation. No more frequently than annually,
----------------------
Retailer may request that a mutually acceptable, independent
third party be engaged to review retail e-commerce Web sites
offering general merchandise to determine the customer service
provided at such Web sites. The cost of each such review shall
be shared equally by the Parties. Upon Retailer's request, GSI
shall implement such customer service methods that are
implemented on [*] or more of the [*] of such sites that are
ranked highest by Media Metrix or such other mutually
acceptable Person during the most recent monthly reporting
period. Upon Retailer's request, GSI shall implement such
methods that are implemented on [*] or more of the [*] of such
sites that are ranked highest by Media Metrix or such other
mutually acceptable Person during the most recent monthly
reporting period unless such methods would be inconsistent
with GSI's reasonable business needs. Notwithstanding the
foregoing, GSI is not required to implement any method if it
would be illegal, would result in the infringement or
violation of any third party's rights, would cause a breach of
any agreement to which GSI is a party, or would require GSI to
enter into a commercially unreasonable license.
3.8.2 Customer Complaints and Surveys. GSI shall contemporaneously
-------------------------------
transmit to Retailer by email copies of email correspondence
between GSI and Customers that lodge complaints about the
customer service related to the Web Site and on a quarterly
basis, shall provide copies of all other correspondence from
Customers that lodge complaints about the customer service
related to the Web Site. GSI shall provide to Retailer the
compiled results of any of GSI's surveys of Web Site customer
satisfaction with the Web Site.
3.9 Audit. Upon 30 days prior written notice and no more frequently
-----
than once per 12 month period, GSI shall provide to Retailer
reasonable access during normal business hours to GSI's books,
records, and data that document the sales, shipment, and return of
merchandise through the Web Site for the limited purpose of Retailer's
review of GSI's performance under this Agreement. Retailer may inspect
such books, records, and data and all such information (other than
Customer Information) shall be Confidential Information of GSI as
defined in Section 7 of this Agreement, and subject to Section 7 of
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<PAGE>
this Agreement. Retailer may only make copies of such books, records,
and data as are reasonably related to disputed matters and only with
prior notice to GSI.
3.10 Return of Online Merchandise. GSI's return policy shall be consistent
----------------------------
with Retailer's return policy. With each shipment of merchandise to a
Customer, GSI shall instruct the Customer that the merchandise
purchased through the Web Site may be returned to the Land Based
Stores or to the Web Site fulfillment center and that such returned
merchandise ("Online Return") may only be returned in accordance with
the instructions enclosed with the merchandise.
3.10.1 Online Return to GSI. GSI will deduct any Revenue Share
--------------------
related to the sale of an Online Return to and accepted by
GSI. Such deduction will be made from the next Revenue Share
payment and shall be identified in the related accounting.
3.10.2 Online Return to GSI of Markdowns and Closeout Merchandise.
----------------------------------------------------------
GSI will issue a refund to Customers for Online Returns of
Markdowns and Closeout Merchandise accepted by GSI. Proceeds
paid to Retailer for the sale of such Markdowns and Closeout
Merchandise will be credited to GSI in the next payment to
Retailer under this Agreement.
3.10.3 Online Returns to Land Based Store. Retailer shall ship, at
----------------------------------
GSI's cost (which may include, without limitation,
reasonable fees to third party RTV consolidators or
processors), Online Returns to Land Based Stores to GSI's
fulfillment center. GSI shall credit to Retailer the amount
refunded to the Customer less the related Revenue Share. If
such merchandise is Closeout Merchandise or a Markdown, GSI
shall credit to Retailer the portion of the sale proceeds
retained by GSI pursuant to this Agreement and such
merchandise shall be returned to the Closeout Merchandise
and Markdown inventory. Any credit for Online Returns to
Land Based Stores will be applied to the Revenue Share
payment for the month following GSI's receipt of the related
merchandise. No credit shall be due for merchandise that is
not accompanied by proof of the purchase of the merchandise
through the Web Site and proof of refund by Retailer.
3.11 Retailer Personnel Discounts. GSI shall offer to officers,
----------------------------
directors, and employees of Retailer discounts on purchases of
services and merchandise through the Web Site identical to the
discounts offered by Retailer to such personnel for purchases at Land
Based Stores. The discount may not be used in combination with any
other discount. Retailer shall promote the discount for such purchases
through the Web Site to the same extent that it promotes the discount
for such purchases at Land Based Stores.
3.12 Promotions. GSI may use the URL and Retailer's name and logo to
----------
promote the Web Site with other businesses; provided however, GSI
shall not promote the Web Site on any other sporting goods retailer's
Web site or on any Web site that would generally be considered
immoral, pornographic or otherwise offensive.
3.13 Retailer Project Manager. Promptly after the execution of this
------------------------
Agreement, but in no event later than sixty days after such execution,
Retailer, at its expense, shall appoint a Project Manager who shall be
authorized to act on behalf of Retailer for all purposes under this
Agreement and whose primary duties shall be to work with GSI regarding
this Agreement and the Web Site. Commencing with the Project Manager's
appointment and continuing through the Term, the Project Manager shall
be Retailer's contact point with GSI and shall be responsible for
supplying GSI with the Retailer Content, notices permitted or required
under this Agreement, and such other information as may
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<PAGE>
reasonably be required of Retailer to create, maintain, and operate
the Web Site efficiently.
3.14 Government Notices. GSI shall comply in all material respects with
------------------
all applicable Laws, including without limitation, all applicable
Laws relating to disclosure, advertisement, unfair competition, tax,
and consumer matters. GSI shall provide immediate notice to Retailer
of all government notices and legal process regarding the Web Site,
including without limitation notices of deceptive trade practices,
infringement, false advertising, defamation, and Federal Trade
Commission notices. All such notices and legal process and the
existence of all such notices and legal process shall be
Confidential Information of GSI as defined in Section 7 of this
Agreement, and subject to Section 7 of this Agreement.
4 Online Data and Databases
4.1 Ownership of Data. Schedule 5 attached to this Agreement describes
-----------------
the data to be collected by GSI through the Web Site ("Customer
Data") as of the Effective Date. The scope of GSI's collection of
Customer Data is within GSI's sole discretion and may be changed at
any time and from time to time without prior notice. GSI shall give
Retailer notice of such changes within a reasonable time after
implementation of such changes. Customer Data shall be [*], and any
and all other data obtained in any manner or from any source by GSI
that is not information obtained from Retailer shall [*]. During the
Term and for [*] after the expiration or termination by Retailer of
this Agreement, GSI shall not [*]. For [*] after the expiration or
termination by Retailer of this Agreement, GSI shall [*].
4.1.1 Compliance with the Web Site Privacy Policy. During the
-------------------------------------------
Term and thereafter, GSI and Retailer shall hold and use
Customer Data in strict compliance with the Web Site privacy
policy as such policy may be revised by mutual agreement at
any time and from time to time. GSI shall provide prompt
notice of changes to the Web Site privacy policy and each
Party will provide prompt notice to the other Party of
changes to the elections under such policy by the
individuals to which the Customer Data relates.
4.2 Ownership of Databases. All data structures, data schema, database
----------------------
dictionaries, attributes, validation tests for each element, table
sizes and formats, access requirements, data dependencies and other
elements involving GSI's storage of data and all refinements,
updates, releases, improvements and enhancements thereto, all
Intellectual Property Rights therein, and all applications created
for use of the data and Retailer Content (collectively "Databases")
shall, as between GSI and Retailer, be the sole and exclusive
property of GSI.
4.3 Delivery of Customer Data to Retailer. Beginning 30 days after the
-------------------------------------
Launch Date and during the Term, GSI shall permit Retailer to access
and use Customer Data in the Databases in accordance with this
Agreement. GSI shall use commercially reasonable efforts to provide
to Retailer for its use solely in accordance with this Agreement,
the tools available to GSI to access Customer Data, which tools
available as of the Effective Date are identified on Schedule 8.
Retailer's use of such tools shall be limited to accessing Customer
Data from the Databases during the Term and shall be subject to such
other restrictions as may be reasonably required by GSI. GSI shall
use commercially reasonable efforts to ensure that the Customer Data
accurately and completely reflects the Customer Data collected by
GSI, but GSI shall have no obligation to check the accuracy,
validity or integrity of such Customer Data and except as set forth
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<PAGE>
in this Section 4, the Customer Data is provided "AS-IS" and without
any warranty of any kind, either express or implied, including,
without limitation, any implied warranties of title,
merchantability, or fitness for a particular purpose, or any
warranty against infringement of patents, copyrights, trade secrets,
or other Intellectual Property Rights. Customer Data is Confidential
Information of GSI and Retailer, as defined in Section 7 of this
Agreement, and subject to Section 7 of this Agreement.
5 Advertising and Marketing
5.1 Retailer's Obligations. Retailer shall, commencing no later than
----------------------
the Launch Date and continuing during the Term, at no cost to GSI
integrate the URL into its advertising and marketing in accordance
with Schedule 2 attached to this Agreement.
5.2 GSI's Obligations. GSI's marketing and promotion of the Closeout
-----------------
Merchandise and Markdowns will be consistent with the number of
Closeout Merchandise and Markdown stock keeping units offered for
sale through the Web Site relative to the number of other
merchandise stock keeping units offered for sale through the Web
Site. GSI shall, at its own cost and expense, use commercially
reasonable efforts to establish and maintain an affiliate program
linking other Web sites to the Web Site for the purpose of referring
Customers to the Web Site. GSI shall, through December 31, 2000,
provide [*] impressions on the Yahoo! Web site promoting the Web
Site and services or merchandise offered through the Web Site or
such other promotion through the Web mutually acceptable to the
Parties. Such promotion shall be subject to Retailer's prior
approval, which approval shall not be unreasonably withheld. Such
promotions shall be deemed approved if GSI does not receive
Retailer's notice of disapproval within 5 days of such promotions'
availability to Retailer. GSI shall use commercially reasonable
efforts to advise Retailer on other Web based marketing and
promotional opportunities for increasing public awareness of the Web
Site, including without limitation, email relationship marketing
programs.
5.3 Search Engine Registration. GSI shall register the Web Site with
--------------------------
each Web search engine or directory site that does not impose a
material charge for such registration with which GSI registers the
Web site of any Other GSI Retailer.
6 Advertising Co-op and Discretionary Funds
During the Term, GSI shall use all Advertising Co-op and Discretionary
Funds received by GSI directly from vendors (including without limitation,
Retailer in its capacity as vendor of Special Make-Ups) as a result of the
purchase of merchandise that was sold through the Web Site solely to
promote the Web Site and not to defray any operating or development
expenses. GSI shall provide an accounting of all such funds to Retailer
upon Retailer's reasonable request.
7 Confidentiality
7.1 Confidential Information. Each Party acknowledges that, in
------------------------
connection with the performance of this Agreement, it may receive
Confidential Information of the other Party. For the purpose of this
Agreement, "Confidential Information" shall mean information or
material that is clearly marked "confidential" or that the Party
receiving the Confidential Information ("Receiving Party") knows, or
has reason to know, is the confidential or proprietary information
of the Party disclosing such Confidential Information ("Disclosing
Party") either because a) such information is marked or otherwise
identified by the Disclosing Party as confidential or proprietary or
b) such
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<PAGE>
information has commercial value and is not generally known in the
Disclosing Party's trade or industry. Confidential Information shall
include, without limitation: (a) concepts and ideas relating to the
development and distribution of content in any medium; (b) trade
secrets, drawings, inventions, know-how, software programs, and
software source documents; (c) information regarding plans for
research, development, new service offerings or products, marketing
and selling, business plans, business forecasts, budgets and
unpublished financial statements, licenses and distribution
arrangements, prices and costs, suppliers and customers; and (d)
existence of any business discussions, negotiations or agreements
between the Parties.
7.2 Confidentiality. The Receiving Party shall (a) hold and maintain in
---------------
strict confidence all Confidential Information of the Disclosing
Party and shall not disclose it to any third party and (b) shall not
use any Confidential Information of the Disclosing Party except as
permitted by this Agreement or as may be necessary for the Receiving
Party to perform its obligations under this Agreement. The
obligations and restrictions imposed by this Section 7 shall
terminate five (5) years after the expiration or termination of this
Agreement.
Notwithstanding the foregoing, the Receiving Party may disclose
Confidential Information to a director, officer, employee, or agent
of the Receiving Party provided that (a) the responsibilities of
such Person to the Receiving Party reasonably require access to
Confidential Information; (b) the Receiving Party advises each such
Person before he or she receives access to or possession of
Confidential Information of the confidential nature of, and the
Receiving Party's obligations regarding, the Confidential
Information; and (c) for any Person who is not otherwise obligated
by written agreement to comply with this Section 7, as a condition
of obtaining access to any Confidential Information, each such
Person is bound by written agreement the terms of which regarding
Confidential Information are no less restrictive than those of this
Agreement. The Receiving Party shall be liable for any duplication,
use, or disclosure of any Confidential Information by any Person who
obtains access to or possession of Confidential Information through
the Receiving Party.
7.3 Exceptions. Notwithstanding the foregoing, the Parties agree that
----------
Confidential Information other than Customer Information will not
include any information that: (a) was published or becomes available
to the general public other than through a breach of this Agreement;
(b) was possessed by the Receiving Party prior to receipt or access
pursuant to this Agreement, other than through prior disclosure by
the Disclosing Party, as evidenced by the Receiving Party's written
records; (c) was obtained by the Receiving Party from a third party
with a valid right to disclose such Confidential Information,
provided that the Receiving Party did not know and reasonably should
not have known that such third party was under a confidentiality
obligation to the Disclosing Party; or (d) was independently
developed by the Receiving Party without the benefit of disclosure
by the Disclosing Party as evidenced by the Receiving Party's
written records; or (e) was required to be disclosed by governmental
agencies, regulatory authorities, or pursuant to court order to the
extent such disclosure is required by law and provided that the
Receiving Party provides reasonable prior notice to the Disclosing
Party of the disclosure.
7.4 Confidentiality of this Agreement. Retailer and GSI acknowledge
---------------------------------
that the terms and conditions of this Agreement constitute
Confidential Information of each Party governed by the terms of this
Section 7 and each Party shall be deemed to be a Receiving Party
with respect to such Confidential Information.
7.5 Remedy. The Receiving Party acknowledges that the Disclosing Party
------
will be irreparably harmed if the Receiving Party's obligations
under this Section 7 are not performed, and
Page 14 of 45
<PAGE>
that the Disclosing Party would not have an adequate remedy at law
in the event of a violation by the Receiving Party of such
obligations. The Receiving Party agrees and consents that the
Disclosing Party shall be entitled, in addition to all other rights
and remedies to which the Disclosing Party may be entitled, to have
a decree of specific performance or an injunction issued requiring
any such violation to be cured and enjoining all Persons involved
from continuing the violation. The existence of any claim or cause
of action that the Receiving Party or any other Person may have
against the Disclosing Party shall not constitute a defense or bar
the enforcement of this Section 7. The Receiving Party acknowledges
that the restrictions in this Section 7 are reasonable and necessary
to protect legitimate business interests of the Disclosing Party.
8 Press Releases
All voluntary public announcements concerning the transactions contemplated
by this Agreement shall be mutually acceptable to both GSI and Retailer.
Unless required by law, neither GSI nor Retailer shall make any public
announcement or issue any press release concerning the transactions
contemplated by this Agreement without the prior written consent of the
other Party. Each Party may make any public announcement or issue any press
release it is required by law to issue provided such Party gives reasonable
prior notice of such announcement or press release to the other Party.
9 Exclusive Web Agreement
9.1 Exclusive Retailer Web Site. During the Term, other than through
---------------------------
the Web Site or other Web site operated by GSI, and except to
promote the Web Site or Land Based Stores, neither Retailer nor any
Affiliate of Retailer shall, alone or with others, directly or
indirectly (a) promote or offer for sale through the Internet any
merchandise in a Category or distribute or fulfill orders for any
merchandise in a Category sold through the Internet or (b) use or
permit any other Person to use its name, logo, or other trademarks,
service marks, trade names, or trade dress, whether or not
registered, on the Internet; provided, however, that if (a) Retailer
develops an alternative business model involving sales of sporting
goods under a trade name other than Oshman's Sporting Goods or
Oshman's SuperSports USA and having a substantially different
product mix than presently carried in the Land Based Stores, and (b)
GSI declines to provide a Web site to Retailer for such business on
substantially the same terms as this Agreement, the provisions of
this Section 9.1 shall not apply to such business.
9.2 No [*] Web site. During the Term, GSI shall not operate an e-
---------------
commerce enabled Web site for [*]. This Section 9.2 shall expire and
have no further force or effect if (a) the aggregate direct and
indirect ownership interest of the executive officers, directors,
and Affiliates of [*] as of the Effective Date later falls below [*]
and (b) Retailer's annualized revenue from Land Based Stores is less
than [*].
9.3 Retailer's Existing Web Site. For the period commencing 30 days
----------------------------
after the execution of this Agreement and ending on the Launch Date,
GSI shall host Retailer's currently existing Web site and shall use
commercially reasonable efforts to make such Web site publicly
accessible to users of the Internet at all times except for
reasonable periods for system maintenance. GSI may offer for sale
and accept and fulfill orders for Land Based Stores Gift
Certificates through such site in accordance with this Agreement as
if the Land Based Stores Gift Certificates were offered, sold, and
fulfilled through the Web Site.
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<PAGE>
9.3.1 Ownership of Retailer's Existing Web Site. As between Retailer
-----------------------------------------
and GSI, Retailer's existing Web site shall remain the sole and
exclusive property of Retailer. GSI shall have no rights in such Web
site, other than the limited right to use such Web site for the
performance of its obligations and exercising its rights under this
Agreement.
9.3.2 Retailer Warranty. Retailer represents, warrants, and covenants (a)
----------------
that Retailer has the full legal right to grant to GSI any and all
ownership rights and licenses granted to GSI under this Section 9.3
and (b) that during the term of this Agreement, Retailer shall not
distribute through its existing Web site any material that (a)
infringes on the Intellectual Property Rights of any Person or any
rights of publicity or privacy of any Person; (b) violates any Law
(including without limitation, the laws and regulations governing
export control, unfair competition, anti-discrimination, or false
advertising); (c) is defamatory, trade libelous, unlawfully
threatening, or unlawfully harassing; (d) is obscene, child
pornographic, or indecent; (e) violates any community or Internet
standard; or (f) contains any viruses, Trojan horses, worms, time
bombs, cancelbots, or other computer programming routines that are
intended to damage, detrimentally interfere with, surreptitiously
intercept, or expropriate any system, data or personal information.
9.3.3 Remedy. In addition to any remedies that GSI may have at law or in
------
equity, if GSI reasonably determines that Retailer has breached or
is likely to breach its representations, warranties, or covenants of
this Section 9.3, GSI may take any action GSI reasonably deems
necessary to cure or avoid the breach, including without limitation,
the immediate disabling of the Web site and the removal from or
refusal to upload to the Web site the related materials.
10 Use of URL, Trademarks, Service Marks, Trade Names, and Logos
During the Term, Retailer hereby grants to GSI the exclusive license to
use, copy, modify and display in accordance with this Agreement the URL and
Retailer's trade names, trademarks, trade dress, service marks, and logos
and such other names and logos as are listed on Schedule 3 attached to this
Agreement ("Marks"), on the Web Site, and a nonexclusive license to use,
copy, modify, and display the Marks on invoices and packing slips, in
connection with credit card charges, in connection with a toll free Web
Site customer service telephone line, as otherwise permitted by this
Agreement, and generally in connection with the operation and promotion of
the Web Site; provided however, GSI shall have no right to modify the Marks
without Retailer's prior approval. Schedule 3 shall be modified from time
to time during the Term to add any new trademarks, service marks, trade
names and logos that Retailer uses during the Term, and any such additions
to Schedule 3 shall be Marks under this Agreement.
GSI recognizes the great value of the publicity and goodwill associated
with the Marks and acknowledges that such goodwill belongs exclusively to
and shall inure to the benefit of Retailer, and that the Marks have
acquired a secondary meaning in the minds of the purchasing public. GSI
will not acquire any rights in the Marks as a result of its use and all use
of the Marks shall inure to Retailer's benefit. Retailer may terminate the
license in this Section 10 to the extent that GSI's use of the Marks does
not conform to Retailer's standards and GSI does not cure such failure
within 10 days of GSI's receipt of Retailer's notice of such failure. GSI
shall use the Marks in the form provided to GSI and as may be modified in
accordance with this Agreement and in conformance with any Retailer
trademark usage policies. GSI shall (a) not take any action inconsistent
with Retailer's ownership of the Marks; (b) not attack or assist any third
party in attacking the Marks; (c) use proper symbols indicating the
registered status of the Marks; (d)
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<PAGE>
not attempt to register the Marks anywhere; and (e) not adopt or use
confusingly similar marks. GSI's obligation under this Section 10 shall
survive the termination of this Agreement.
GSI shall use the Marks only in a manner that reflects the goodwill and
quality reflected by the Marks. Upon notice from Retailer, GSI shall remove
from the Web Site any Links to Web sites that in Retailer's reasonable
judgment (a) are obscene, child pornographic, or violate any community or
Internet standard or (b) would offer competitive merchandise or services or
merchandise or services that would place Retailer in an adverse light or
tarnish its reputation. The use of the Marks as otherwise permitted by this
Agreement are deemed to comply with this Section 10.
11 Property Rights and Ownership
The Web Site shall consist of, and shall operate in conjunction with,
multiple elements, all of which are subject to certain Intellectual
Property Rights. The Parties' respective rights with respect to such
elements shall be as set forth below and subject to the terms of this
Agreement. For purposes of this Agreement, the term "ownership" shall refer
to ownership of all right, title and interest in and to the respective
elements, including, but not limited to, all patent, copyright, trade
secret, trademark and any other similar Intellectual Property Rights
therein, as applicable.
11.1 The Web Site shall be owned solely by GSI.
11.2 GSI Products shall be owned solely by GSI.
11.3 Retailer Content shall be owned solely by Retailer.
11.4 Marks shall be owned solely by Retailer.
12 Representations and Warranties
12.1 Retailer represents and warrants that
12.1.1 it has the full right to transfer to or grant to GSI the
right to use its URL, Secondary URLs, Marks, and Retailer
Content as transferred or granted in this Agreement;
12.1.2 during the Term of this Agreement, as used in accordance
with this Agreement, the Retailer information provided
pursuant to Section 3.1.7 and Retailer Content, as
provided by Retailer and as updated, are accurate,
complete, and not misleading and (a) do not violate any
Law (including without limitation, the laws or regulations
governing export control, unfair competition, anti-
discrimination, or false advertising); (b) do not breach
any contract and has not resulted in and will not result
in any consumer fraud, product liability, tort, injury,
damage, or harm of any kind to any third party; or (c) do
not violate any Person's property rights or rights to
publicity, privacy, personality, or other rights, and are
not defamatory, libelous, unlawfully threatening,
unlawfully harassing, obscene, indecent, or pornographic;
12.1.3 Retailer's use and maintenance of Customer Information
shall be in strict compliance with the Web Site privacy
policy as such policy may be revised at any time and from
time to time without notice; and
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12.1.4 Schedule 4 attached to this Agreement is, and shall be
promptly revised by Retailer to continue to be, an
accurate and complete list of the addresses of every
facility owned or operated by Retailer.
12.1.5 Schedule 6 attached to this Agreement is, and shall be
maintained by Retailer to continue to be, an accurate and
complete list of the Secondary URLs registered in
Retailer's name, and Retailer shall give 30 days prior
notice to GSI of any and all additions or changes to the
Secondary URLs on Schedule 6.
12.2 GSI represents and warrants that during the term of this Agreement,
the Web Site, GSI Content, all material available on the Web Site,
and all advertising that is not Retailer Information or Retailer
Content will not (a) infringe on the Intellectual Property Rights of
any Person or any rights of publicity or privacy of any Person; (b)
violate any Law (including without limitation, the laws and
regulations governing export control, unfair competition, anti-
discrimination, or false advertising); (c) be defamatory, trade
libelous, unlawfully threatening, or unlawfully harassing; (d) be
obscene, child pornographic, or indecent; (e) violate any community
or Internet standard; or (f) contain any viruses, Trojan horses,
worms, time bombs, cancelbots, or other computer programming
routines that are intended to damage, detrimentally interfere with,
surreptitiously intercept, or expropriate any system, data or
personal information.
12.3 Each Party represents and warrants to the other Party that: (a) it
is a corporation duly organized, validly existing and in good
standing under the laws of its state of incorporation and that it
has the power and authority to enter into this Agreement and the
transactions contemplated herein; (b) the consummation of the
transactions described by this Agreement shall not conflict with or
result in a breach of any of the terms, provisions or conditions of
its Articles of Incorporation or Bylaws, or any statute or
administrative regulation or of any order, writ, injunction,
judgment or decree of any court, regulatory or Governmental
Authority or of any agreement or instrument to which it is a party
or by which it is bound or constitute a default thereunder; and (c)
this Agreement has been duly authorized, executed and delivered by
it and this Agreement is valid, enforceable and binding upon each
Party in accordance with its terms.
12.4 In addition to any remedies that either Party may have at law or in
equity, if either Party reasonably determines that the other Party
has breached or is likely to breach Section 12.1.2 or 12.2, the non-
breaching Party may take any action it reasonably deems necessary to
cure or avoid the breach, including without limitation, the
immediate removal from or refusal to upload to the Web Site the
related materials.
13 Disclaimer of Warranties
EXCEPT FOR THE EXPRESS WARRANTIES CONTAINED IN THIS AGREEMENT, NEITHER
RETAILER NOR GSI MAKES ANY, AND BOTH DISCLAIM ALL, REPRESENTATIONS AND
WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, IN FACT OR IN LAW,
INCLUDING WITHOUT LIMITATION ALL WARRANTIES OF TITLE, NON-INFRINGEMENT,
MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTIES THAT
ARISE FROM TRADE USAGE OR CUSTOM. EACH PARTY ACKNOWLEDGES AND AGREES THAT
THE OTHER PARTY HAS NOT MADE, NOR DOES HEREBY MAKE, ANY OTHER
REPRESENTATION, WARRANTY OR COVENANT OF ANY KIND OR CHARACTER, EXPRESSED OR
IMPLIED.
14 Indemnification
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14.1 Retailer, at its own cost and expense, shall defend, indemnify and
hold harmless GSI and any of its officers, directors, employees or
agents from and against all damages, expenses, liabilities and other
costs (including reasonable attorneys fees and court costs) arising
from or related to (a) claims that GSI's possession or use in
accordance with this Agreement of Retailer Content, the Marks, or
other items provided by Retailer pursuant to this Agreement
infringes a third party patent, copyright, trademark, trade secret,
or other proprietary right; (b) claims by third parties arising from
or related to Retailer's breach of any representation or warranty in
this Agreement; or (c) Retailer's gross negligence, willful or
intentional misconduct.
14.2 GSI, at its own cost and expense, shall defend, indemnify and hold
harmless Retailer and any of its officers, directors, employees or
agents from and against all damages, expenses, liabilities and other
costs (including reasonable attorneys fees and court costs) arising
from or related to (a) claims made by third parties to the extent
that they are based on information (including Content) on, or
transactions through, the Web Site or GSI's services to Retailer
provided pursuant to this Agreement other than claims for which GSI
is entitled to indemnification pursuant to Section 14.1 of this
Agreement or (b) GSI's gross negligence, willful or intentional
misconduct.
14.3 An indemnitor under this Section 14 shall have the right to control
the defense and settlement of any claims or actions for which it is
obligated to defend, but the indemnitee shall have the right to
participate in such claims or actions at its own cost and expense.
An indemnitor under this Section 14 shall have no liability under
this Section 14 to the extent that the indemnitor is actually
prejudiced by the indemnitee's failure to give notice to the
indemnitor promptly after the indemnitee learns of such claim so as
to not prejudice the indemnitor.
15 Insurance
15.1 GSI shall maintain in full force and effect products liability
insurance coverage for merchandise sold through the Web Site in an
amount not less than [*]. Such policy shall name Retailer as an
additional insured.
15.2 GSI shall deliver to Retailer certificates of insurance that
stipulate that no less than ten days notice will be given to
Retailer prior to the termination of the related policy. Such
certificates shall identify the coverage and state that Retailer is
an additional insured under the policy.
16 Termination and Other Remedies
16.1 Termination for Cause by Either Party. Except as otherwise
-------------------------------------
provided in this Agreement, this Agreement may be terminated by
either Party
16.1.1 if a material breach of the terms or conditions of this
Agreement by the other Party which breach is not cured
within 30 days of the breaching Party's receipt of notice of
such breach or such longer period as may be reasonably
necessary provided that the Party in breach is diligently
pursuing a cure. As used herein, "material breach" shall
mean a failure by a Party to perform any of its obligations
the effect of which would substantially impair the value of
this Agreement to the other Party;
Page 19 of 45
<PAGE>
16.1.2 if the other Party fails to pay to the Party within 10 days
after Party makes written demand for any past-due amount
payable under this Agreement;
16.1.3 if a voluntary petition is commenced by the other Party
under the Bankruptcy Code, as amended, 11 U.S.C. (S) 101 et
seq; the other Party has an involuntary petition commenced
against it under the Bankruptcy Code and such petition is
not dismissed within 60 days after filing; the other Party
becomes insolvent; or any substantial part of the other
Party's property becomes subject to any levy, seizure,
assignment, application, or sale for or by any creditor or
governmental agency; or liquidates or otherwise discontinues
all or a significant part of its business operations.
16.1.4 if a Party's non-performance is excused by Section 19 and
such non-performance continues for 30 days.
16.2 Termination for Cause by Retailer.
---------------------------------
16.2.1 Retailer may terminate this Agreement upon 180 days' notice
if (a) Revenue Share-generating sales do not equal or exceed
the following amounts for the related GSI fiscal years and
(b) GSI does not pay twice the shortfall in Revenue Share to
Retailer by March 31 of the following year.
2001 $[*]
2002 $[*]
2003 $[*]
2004 $[*]
16.2.2 Retailer may terminate this Agreement immediately upon
notice if (a) GSI or any Affiliate of GSI (except for
Affiliates of GSI in a business relationship structure
substantially similar to that between GSI and The Sports
Authority (excluding the economics)) promotes, offers for
sale, or distributes any sports equipment, sports apparel,
or athletic footwear through the Internet under a trade
name, trademark, or service mark owned by GSI or any
Affiliate of GSI; (b) GSI does not offer (and is not
prohibited by the manufacturer from offering) to Retailer
the option to offer on the Web Site all merchandise that is
offered on such GSI Web site; and (c) Retailer gives notice
of termination within 30 days of Retailer's receipt of GSI's
notice refusing to so offer such option.
16.3 Effect of Termination.
---------------------
16.3.1 Upon the expiration or termination by Retailer of this
Agreement, (a) all licenses granted to either Party under
this Agreement shall terminate; (b) GSI shall transfer the
registration of the URL to Retailer and designate Retailer
as the administrative, technical, billing contact, and any
other contact for the URL and all Secondary URLs with the
registrar; (c) GSI shall return to Retailer or at
Retailer's option, destroy Retailer Content in GSI's
possession; and (d) upon Retailer's request, GSI shall
continue to operate the Web Site in accordance with this
Agreement for no more than 180 days and reasonably
cooperate with Retailer in closing the Web Site at the end
of such period, including without limitation, completing
the processing of all orders and requests for customer
service.
16.3.2 Upon the expiration or termination by Retailer of this
Agreement, GSI shall release to Retailer Customer
Identification Data (defined below), which shall
Page 20 of 45
<PAGE>
remain subject to Section 4 of this Agreement. "Customer
Identification Data" means Customer Data that identifies
the names, addresses, telephone numbers, email addresses,
and purchasing history of Customers who during the Term
have placed an order for Online Merchandise.
16.3.3 Upon the expiration or termination by Retailer of this
Agreement, GSI grants to Retailer a perpetual,
transferable, irrevocable license throughout the universe
to use, copy, modify, adapt, translate, create derivative
works based upon, sublicense, reproduce, distribute,
publicly perform, publicly display, and digitally perform
the appearance and operational patterns of the user
interface of the Web Site. The foregoing license does not
include any rights to any computer software or programming
code.
16.3.4 Sections 4, 7, 13, 14, 16.3, and 17 shall survive any
termination by GSI of this Agreement.
16.4 Other Remedies. In addition to any other payment to be made
--------------
hereunder, any amounts owed to a Party shall bear interest at the lesser of 18%
per annum or the maximum rate allowed by law from the date such amounts were
required to be paid until payment. Nothing contained herein shall limit a
Party's ability to obtain injunctive or equitable relief with respect to the
breach of Sections 9 or 10.
17 Limitations of Liability
EXCEPT FOR ANY LIABILITY UNDER SECTIONS 7 AND 14 OF THIS AGREEMENT, UNDER
NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY
INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES
(REGARDLESS OF WHETHER SUCH DAMAGES ARISE OUT OF CONTRACT, NEGLIGENCE OR
OTHER LEGAL THEORIES OR OTHERWISE) ARISING FROM OR RELATED TO THIS
AGREEMENT OR RETAILER'S OR RETAILER'S CUSTOMERS' USE OF OR INABILITY TO
ACCESS ANY PART OF THE INTERNET OR RETAILER'S OR RETAILER'S CUSTOMERS'
RELIANCE ON OR USE OF INFORMATION, SERVICES OR MERCHANDISE PROVIDED ON OR
THROUGH THE WEB SITE OR THE SERVICES, OR THAT RESULT FROM MISTAKES,
OMISSIONS, INTERRUPTIONS, LOSS, THEFT, OR DELETION OF FILES, ERRORS,
DEFECTS, DELAYS IN OPERATION, OR TRANSMISSION, OR ANY FAILURE OF
PERFORMANCE. EXCEPT FOR ANY LIABILITY UNDER SECTIONS 7 AND 14 OF THIS
AGREEMENT, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY
UNDER THIS AGREEMENT FOR AN AMOUNT THAT EXCEEDS, IN THE AGGREGATE, THE
AMOUNTS PAID TO RETAILER DURING THE [*] MONTHS PRECEDING THE LAST ACT OR
OMISSION GIVING RISE TO SUCH LIABILITY; PROVIDED, HOWEVER, THAT IF FEWER
THAN [*] MONTHS HAVE ELAPSED FROM THE LAUNCH DATE THROUGH THE DATE OF SUCH
LAST ACT OR OMISSION, THEN THE LIABILITY CAP SHALL BE EQUAL TO TWELVE TIMES
THE AVERAGE MONTHLY PAYMENT TO RETAILER DURING SUCH PERIOD. THE REMEDIES
SET FORTH IN THIS SECTION 17 CONSTITUTE THE SOLE AND EXCLUSIVE REMEDIES
AVAILABLE TO THE PARTIES UNDER THIS AGREEMENT. THE REMEDIES SPECIFICALLY
PROVIDED BY THIS AGREEMENT AND THE PROVISIONS OF THIS SECTION 17 SET FORTH
EACH PARTY'S EXCLUSIVE REMEDIES AND ALLOCATE BETWEEN GSI AND RETAILER THE
RISKS UNDER THIS AGREEMENT, SOME OF WHICH MAY BE UNKNOWN OR UNDETERMINABLE.
SUCH LIMITATIONS WERE A MATERIAL INDUCEMENT FOR GSI AND RETAILER TO ENTER
INTO THIS AGREEMENT, AND THE PARTIES HAVE RELIED UPON SUCH LIMITATIONS IN
DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT, AND THE PARTIES INTEND
THEM TO BE ENFORCEABLE WHETHER OR NOT THE DAMAGES WERE FORESEEABLE OR,
EITHER
Page 21 of 45
<PAGE>
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OR PROBABILITY OF SUCH DAMAGES
AND EVEN IF THE EXCLUSIVE REMEDIES PROVIDED BY THIS AGREEMENT FAIL OF THEIR
ESSENTIAL PURPOSE. IN NO EVENT SHALL EITHER PARTY BE LIABLE IN ANY RESPECT
FOR CLAIMS BROUGHT MORE THAN [*] MONTHS AFTER THE LAST ACT OR OMISSION
GIVING RISE TO SUCH LIABILITY.
18 Discontinuance or Regulation of the Internet; Termination of Access to the
Web Site
18.1 Discontinuance or Regulation of the Internet. Retailer acknowledges
--------------------------------------------
that the Internet (including without limitation the Web) is a
network of private and public networks and that GSI has no control
over the Internet. GSI shall not be liable for the discontinuance of
operation of any portion of the Internet or possible regulation of
the Internet, which might restrict or prohibit the operation of the
Web Site.
18.2 Termination of Access to the Web Site. GSI may terminate access to
-------------------------------------
the Web Site at any time and without notice (a) to prevent damage or
degradation to the Web Site; (b) to comply with any Law; or (c)
otherwise protect GSI from liability to third parties. GSI will use
reasonable commercial efforts to notify Retailer of any such
termination of access as soon as reasonably practicable after such
termination of access and promptly to restore such access upon the
cessation of the condition leading to such termination.
19 Force Majeure
Neither Party shall be liable to the other Party for non-performance of
this Agreement in whole or in part, if (a) the non-performance is caused by
the other Party or events or conditions beyond that Party's reasonable and
actual control and for which that Party is not responsible under this
Agreement, (b) the Party gives prompt notice under Section 20, and (c) the
Party makes all commercially reasonable efforts to perform.
20 Notices
Any notices or writings to be sent hereunder shall be in writing and shall
be by personal delivery, facsimile transmission or by certified or
registered mail, return receipt requested, and shall be deemed given upon
the earlier of actual receipt, five (5) days after deposit in the mail, or
receipt by sender of confirmation of facsimile transmission. Notices shall
be sent to the following addresses (or such other address as either Party
may specify in writing).
If to GSI: Global Sports Interactive, Inc.
1075 First Avenue
King of Prussia, PA 19406
Attention: President
Copy to: Arthur H. Miller, Esquire
Executive Vice President and General Counsel
1075 First Avenue
King of Prussia, PA 19406
Page 22 of 45
<PAGE>
If to Retailer: Oshman's Sporting Goods, Inc.-Services
2302 Maxwell Lane
Houston, TX 77023
Attention: Steven U. Rath
Copy to: Legal Department
Oshman's Sporting Goods, Inc.-Services
2302 Maxwell Lane
Houston, TX 77023
21 Assignment
Neither GSI nor Retailer may assign this Agreement without the prior
written consent of the other Party, which consent shall not be unreasonably
withheld, except that either Party may assign this Agreement upon written
notice to the other Party to an Affiliate of the assignor or to any Person
that acquires or succeeds to all, or substantially all, of assignor's
business or assets.
22 Independent Contractors
The relationship of the Parties herein shall be that of independent
contractors and nothing herein shall be construed to create a joint venture
or partnership.
23 Waiver
The waiver or failure of either Party to exercise in any respect any right
provided hereunder shall not be deemed a waiver of such right in the future
or a waiver of any other rights established under this Agreement.
24 Governing Law
This Agreement, the rights and obligations of the Parties hereto, and any
claims or disputes thereto, shall be governed by and construed in
accordance with the laws of the State of Delaware (excluding the choice of
law rules thereof).
25 Jurisdiction
The Parties agree that the exclusive jurisdiction and venue of any dispute
that arises hereunder shall be in federal or state courts of competent
jurisdiction in the jurisdiction of the defendant's principal place of
business.
26 Binding Effect
This Agreement shall be binding upon the Parties hereto, their successors
and permitted assigns.
Page 23 of 45
<PAGE>
27 Severability
Should any term or provision of this Agreement be held to any extent
unenforceable, invalid, or prohibited under law, then such provision shall
be deemed restated to reflect the original intention of the Parties as
nearly as possible in accordance with applicable law and the remainder of
this Agreement, or the application of such term or provision to Persons,
property, or circumstances other than those as to which it is invalid,
unenforceable, or prohibited, shall not be affected thereby, and each term
and provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
28 Headings
Section headings contained in this Agreement are inserted for convenience
or reference only and shall not be deemed to be a part of this Agreement
for any other purpose. All references to "Section" or "Sections" refer to
the corresponding Section or Sections of this Agreement. All words used in
this Agreement will be construed to be of such gender or number as the
circumstances require. Unless otherwise expressly provided, the word
"including" does not limit the preceding words or terms, but is rather
intended to signify that some of many examples follow. The words "hereof,"
"thereof," "herein" and the like are intended to refer to the Agreement as
a whole unless the context clearly and unambiguously indicates otherwise.
29 Entire Agreement
This Agreement, including the Schedules attached to this Agreement,
represents the entire agreement of the Parties with respect to the subject
matter hereof and may not be modified, except in writing, executed by the
Parties hereto. This Agreement supersedes all prior writings of the Parties
with respect to this subject matter.
Page 24 of 45
<PAGE>
30 Counterparts
This Agreement may be signed in several counterparts, each of which shall
be deemed an original, and all of which when taken together, shall be
deemed a complete instrument.
The Parties accept this Agreement and have caused this Agreement to be
executed and do each hereby warrant and represent that its respective signatory
whose signature appears below has been and is on the date executed duly
authorized by all necessary and appropriate corporate action to execute this
Agreement on its behalf.
Global Sports Interactive, Inc. Oshman's Sporting Goods, Inc.-Services
By: /s/ Michael Rubin By: /s/ Steven U. Rath
Name: Michael Rubin Name: Steven U. Rath
Title: CEO Title: Exec. Vice Pres.
Date: 12/30/99 Date: 12/30/99
Page 25 of 45
<PAGE>
Schedule 1
Web Site Development
Unless otherwise defined below, terms defined in the Agreement have the
same meaning in this Schedule 1..
1. DEFINITIONS
1.1 "Domain Name" means the URL.
1.2 "Agreement" means the E-Commerce Agreement by and between GSI and
Retailer to which this Schedule is attached as Schedule 1.
1.3 "Features Set" means the requirements set forth in Attachment B, as
amended or supplemented in accordance with this Agreement.
1.4 "Intellectual Property Rights" means any and all now known or
hereafter known tangible and intangible (a) rights associated with works of
authorship throughout the universe, including but not limited to copyrights,
moral rights, and mask-works, (b) trademark and trade name rights and similar
rights, (c) trade secret rights, (d) patents, designs, algorithms and other
industrial property rights, (e) all other intellectual and industrial property
rights (of every kind and nature throughout the universe and however designated)
(including logos, "rental" rights and rights to remuneration), whether arising
by operation of law, contract, license, or otherwise, and (f) all registrations,
initial applications, renewals, extensions, continuations, divisions or reissues
hereof now or hereafter in force (including any rights in any of the foregoing).
1.5 "Milestone Delivery Schedule" means the schedule for development of
the Web Site set forth in Attachment B.
1.6 "GSI Content" means all text, pictures, sound, graphics, video and
other data and assets supplied by GSI, as such materials may be modified from
time to time.
1.7 "GSI Products" means, collectively, the GSI Tools, the GSI Content and
the GSI Work Product.
1.8 "GSI Tools" means any tools, both in object code and source code form,
which GSI has already developed or which GSI independently develops or licenses
from a third party, including any tools which GSI creates pursuant to the
Agreement. By way of example, GSI Tools may include, without limitation,
toolbars for maneuvering between pages, search engines, Java applets, and
ActiveX controls.
1.9 "Production Schedule" shall mean the schedule agreed upon by the
parties for the production of the Retailer's Web Site, including the delivery of
the Retailer Content and GSI Content.
1.10 "Retailer Content" means the Domain Name, if applicable, and all
text, pictures, sound, graphics, video and other data and assets supplied by
Retailer to GSI, as such materials may be modified from time to time.
1.11 "Services" means the services provided by GSI hereunder to develop,
host and maintain the Web Site, in accordance with the Agreement.
<PAGE>
1.12 "Web Site" means, collectively, the Web site developed pursuant to
the Agreement and including without limitation, GSI Products and the Retailer
Content made available on web pages at the URL.
1.13 "GSI Work Product" means all HTML files, Java files, graphics files,
animation files, data files, technology, scripts and programs, both in object
code and source code form, all documentation and any other deliverable used by
GSI to create the Web Site.
2. WEB SITE DEVELOPMENT SERVICES
2.1 Delivery of Initial Retailer Content. As soon as reasonably possible,
GSI and Retailer shall agree upon a Production Schedule for the delivery by
Retailer to GSI of the Retailer Content and Retailer information specified in
Attachment A that Retailer intends for GSI to incorporate into the Web Site. The
parties acknowledge that Retailer will be able to deliver certain "static"
information, such as store locations, promptly to GSI, and other Retailer
Content, such as certain merchandise to be sold on the Retailer's Web Site, at a
later date closer to the Launch Date. The Retailer Content shall be in the
format(s) designated by GSI as set forth on Attachment C hereto. Upon
Retailer's request, GSI shall assist Retailer in the conversion of the Retailer
Content into an acceptable form for use by the Web Site.
2.2 Web Site Development Services. At no cost to Retailer, GSI shall
provide design, programming and other consulting Services as specified in
Attachment B to create the Web Site. GSI will provide the Web Site to Retailer
in accordance with the Milestone Delivery Schedule.
2.3 Project Liaisons. Each party's primary contact for development
efforts shall be the project liaisons specified in Attachment B or the person
otherwise designated in writing by Retailer or GSI, as the case may be.
3. WEB HOSTING AND MAINTENANCE SERVICES
Following Retailer's acceptance of the Web Site pursuant to Section 2.4,
GSI shall, at no cost to Retailer, provide the following web hosting and
maintenance Services:
3.1 Hosting Services. GSI shall load the Web Site onto server(s) that
are connected to the Internet and accessible via the Web through use of the URL.
GSI shall ensure that the Web Site is functional and ready to process
transactions in a reasonably efficient manner.
3.2 Retailer Content. GSI shall upload all Retailer Content, including
updates, to the Web Site within a mutually agreed to time following delivery to
GSI. Upon GSI's prior written consent, Retailer may electronically transmit or
upload Retailer Content directly to the Web Site.
3.3 Maintenance Services. Upon notification of a non-conformity between
the Web Site and the Features Set, whether from Retailer or from any user of the
Web Site, GSI shall promptly commence an investigation into the reported error,
and GSI shall, upon reproducing such error, use reasonable commercial efforts to
correct such error in a timely fashion during periodic maintenance windows. GSI
may temporarily block access to the Web Site to perform Web Site Maintenance
Services during periodic maintenance windows.
<PAGE>
ATTACHMENT A
RETAILER'S ASSET REQUIREMENTS
FOR GLOBAL SPORTS INTERACTIVE'S PARTNERS
----------------------------------------
Product Assets
Elements: Product Assets should include names and prices. No product
photography or description are required.
Store Locations
Store location information should include address, phone number and fax numbers.
Corporate Assets
Corporate Assets may include the following:
. Press Releases
. Frequently Asked Questions
. Contact Information
. Jobs Information
. Community Programs Information
. Annual Reports
. Corporate Identity materials including logo
All above information may be submitted at the Retailer's discretion, excluding
the corporate identity materials and logos, which are mandatory.
<PAGE>
ATTACHMENT B
(TO BE COMPLETED)
Format of Retailer Content:
Project Liaisons:
For GSI: For Retailer:
FEATURES SET
- ------------
31. PRODUCT SEARCH
32. KEYWORD SEARCH
33. ADVANCED SEARCH
34. BROWSE CATEGORIES
35. BROWSE BRANDS
36. RECOMMENDATION TOOLS
37. ADVANCE PRODUCT PRESENTATION
38. SHOPPING CART
39. GIFT GIVING FUNCTIONALITY
40. REMOTE PUBLISHING TOOLS FOR HUMAN RESOURCES AND PRESS ROOM
AND EVENTS
41. SALES TAX CONFIGURATION AND CALCULATION
42. PRODUCT REVIEWS.
43. 24/7 CUSTOMER SUPPORT
11. VIA TELEPHONE AND ONLINE
44. AFFILIATE PROGRAM FUNCTIONALITY
45. ONLINE GIFT CERTIFICATES.
46. LAND BASED STORES GIFT CERTIFICATES
47. STORE LOCATOR
48. FINANCIAL INFORMATION
49. FREQUENTLY ASKED QUESTIONS
50. COMMUNITY PROGRAMS
51. COMPANY PROFILE
52. ONLINE ORDER STATUS
AND TRACKING
53. CUSTOMER FEEDBACK
54. CHAT ROOM/BULLETINBOARD/"LIVE REP"
55. "MY OSHMAN'S" PAGE
56. REPLENISHMENT
57. SCALABLE
MILESTONE DELIVERY SCHEDULE:
- ---------------------------
TASK ESTIMATED COMPLETION DATE
- ---- -------------------------
DISCOVERY AND PLANNING
COMMENCE ENGINE ENGINEERING
ESTABLISH FULFILLMENT CAPABILITIES
RETAILER WEB SITE DEVELOPMENT
<PAGE>
QUALITY CONTROL REVIEW AND REVISIONS
ALPHA TESTING
BETA (SOFT LAUNCH)
WEB SITE LAUNCH TO GENERAL PUBLIC
MEDIA AND PROMOTIONS
<PAGE>
ATTACHMENT C
ASSET SUBMISSION GUIDELINES
This section details how to submit assets.
Source Assets and Final Assets
- ------------------------------------------------------------------
GSI requires source files for all assets. This means if an image is originally
constructed as a layered RGB Photoshop file at 100x500 pixels, we need that
file, even if the final file is a flattened
4-bit GIF at 20x100. Retailer's Photoshop EPS Images are 220-226 PPI TIFF and
Bitmap Images are 800 PPI.
GSI allows the submission of final assets in some cases, but only by prior
arrangement and only in addition to an up-to-date source file. All submitted
assets are subject to review and verification by production staff.
Media and Format
- ------------------------------------------------------------------
GSI shall routinely receive assets in the following media and formats.
Digital Media
- ------------------------------------------------------------------
Media:
SyQuest 44mb, 88mb, 200mb, CD-ROM (including PhotoCD), Zip, Jaz, 3.5"
floppy.
Format:
Win16, Win-32, or Macintosh
File Formats:
Text: Raw, MS Word 95, RTF, HTML, Adobe Acrobat, Excel
Bitmap Graphics:
Photoshop, TIFF, PCD (PhotoCD), EPS, PICT (JPEG and GIF for final files
only and only along with source files)
PostScript Graphics:
EPS, Illustrator 6.0 - 8.0 (7.0 preferred)
Video:
QuickTime or other video industry standard
Audio:
WAV, AIFF, MIDI
Non-Digital Media
- -------------------------------------------------------------------
Contact GSI to discuss needs and capabilities before submitting any non-digital
assets.
Asset Submission
- ------------------------------------------------------------------
GSI prefers to receive assets via FTP (file transfer protocol) although GSI
accepts assets via standard package delivery services (i.e., FedEx, USPS, UPS,
etc.) and email.
<PAGE>
Submission via FTP
FTP Area: ftp.globalsportsinteractive.com
Adobe Photoshop EPS or Adobe acrobat PDF
Assets should be left in "Incoming" which is a level below the initial
directory. Once assets have been transferred, e-mail confirmation is required.
Submission via Package Delivery
If Retailer wishes to submit assets via standard package delivery services,
please address the package to this address:
Address: TBD
If Retailer is submitting hard assets like brochures, photographs, etc. please
be sure to ship them in a reinforced container to prevent damage to the assets
while in transit.
If Retailer is submitting digital media like SyQuests, Zip disks, Jaz disks,
etc., be sure to ship them in a well-padded, reinforced container.
[remainder of page deliberately left blank]
<PAGE>
Schedule 2
URL Integration
Terms defined in the Agreement have the same meaning in this Schedule 2.
1. Definitions
a. "dvertisement" means any announcement, display, poster, sign, notice,
------------
circular, brochure, catalogue, or other communication a purpose of
which is to identify, promote, or attract public attention to
Retailer's business, service, or merchandise in any form or media.
b. "Call to Action" means the phrase "Shop Online at oshmans.com" or any
--------------
other phrase mutually acceptable to GSI and Retailer.
2. Marks
During the Term, Retailer shall integrate the URL with Marks in accordance
with the Agreement and this Schedule 2 whenever and where ever the Marks
are used by Retailer unless commercially unreasonable to so integrate the
URL. The integration shall be as shown on Schedule 3 to the Agreement or
in any other presentation or method mutually acceptable to the Parties.
3. Print Media
a. URL and Call to Action. The URL and Call to Action shall be presented
----------------------
on the front page on no less than [*] of Retailer's print media
Advertisements of 4 or more pages, and at least 2 pages of all of
Retailer's print media Advertisements of 4 or more pages.
i. The URL and Call to Action shall be no smaller than the
equivalent of oshmans.com and Shop Online at oshmans.com (Arial,
Bold, 20 pt).
4. Video Media
Provide audio announcements with video displays for the promotion of the
Web Site or services or merchandise offered through the Web Site in all 30
second video media Advertisements unless, and then only to the extent that,
such announcements with video displays are prohibited by Retailer's
agreement with a vendor for Advertising Co-op and Discretionary Funds. The
copy and presentation of such audio announcements with video displays shall
be subject to the Parties mutual agreement.
5. Audio Media
Provide audio announcements for the promotion of the Web Site or services
or merchandise offered through the Web Site in all audio media 30 second
Advertisements unless, and then only to the extent that, such announcements
are prohibited by Retailer's agreement with a vendor for
<PAGE>
Advertising Co-op and Discretionary Funds. The copy and presentation of
such audio announcements shall be subject to the Parties mutual agreement.
6. Direct Mail
a. URL and Call to Action. The URL and Call to Action shall be presented
----------------------
on direct mail Advertisements on the same terms as are applicable in
Section 3 to Print Media, except that the size of the URL and Call to
Action shall be in proportion to the size of the direct mail
Advertisements.
7. In-Store Promotion
a. Call to Action. Retailer shall include the Call to Action, displayed
--------------
as prominently as the Mark and URL on bags.
b. Promotion of the Web Site through In-Store Displays.
---------------------------------------------------
i. General Displays. Retailer shall display in-store displays
----------------
promoting the Web Site or services or merchandise offered through
the Web Site provided at GSI's cost but, at the request of GSI,
produced by Retailer, the copy and presentation of which shall be
subject to the Parties mutual agreement. Retailer shall display
4 such in-store displays in its Superstores and 2 such in-store
displays in its other Land Based Stores.
ii. Hours of Operation Signs. At Retailer's discretion, based on
------------------------
Retailer's reasonable business needs, Retailer shall display the
following message with messages stating the Land Based Store
hours of operation: "Open 24 hours per day, every day at URL,"
which shall be displayed along with the Land Based Store hours of
operation.
c. Promotion of the Web Site through In-Store Materials. Retailer shall
----------------------------------------------------
insert into all bags provided to customers any Advertisements
promoting the Web Site or services or merchandise offered through the
Web Site provided at GSI's cost but, at the request of GSI, produced
by Retailer, the copy and presentation of which shall be subject to
the Parties mutual agreement.
8. Corporate Communications
a. Newsletters. Retailer shall make available to GSI 1 full page for the
-----------
promotion of the Web Site or services or merchandise offered through
the Web Site the copy and presentation of which shall be subject to
the Parties mutual agreement in 1 issue of each newsletter distributed
to Retailer personnel at the time that the Web Site is launched and
shall make available to GSI space in subsequent newsletters at
Retailer's discretion.
b. Training Materials. Retailer shall make available to GSI reasonable
------------------
space in its personnel training and orientation materials to promote
the Web Site. The copy and presentation of materials to be inserted
into such materials shall be subject to the Parties mutual agreement.
9. Costs
Any costs to be reimbursed by GSI pursuant to this Agreement shall be
reimbursed only to the extent that they are pre-approved in writing by GSI.
<PAGE>
Schedule 3
----------
TRADEMARK LIST
--------------
MARK REGISTRATION/APPLICATION #
- ---- --------------------------
America's #1 Fun Store 1,906,156
Board Ragz 74/601,883
Breakpoint 1,758,475
Fish Heads 75/333,490
Healthy Attitude 2,002,127
Honsport 1,600,077
Jake O's 1,756,987
Lift 7 1,159,230
Mountain Tek 2,075,911
Mountain Tek Sport 2,092,304
Mountain Tek Sport 75/333649
Mountain Tek Golf 2,274,898
Mountain Tek Outfitters 75/761,477
One Store Has All The Fun 1,772,062
Oshmans 1,065,033
Oshman's 1,122,841
Oshman's 1,119,203
Oshman's 1163077-AL
Oshman's Ski Skool 1,087,854
Schedule 3
Page 2
<PAGE>
MARK REGISTRATION/APPLICATION #
- ---- --------------------------
OSSI 1,090,983
OSSI 1,435,673
Sea Raider 1,199,481
Some Stores Have All The Fun 0,922,563
SGL-Sporting Goods Liquidators 75/079,217
SuperSports USA 1,692,056
Tuff-Stuff 2,175,234
Waverunner 1,756,988
Waverunner 75/342,973
WinterGold 1,595,532
Women & Sports 2,119,113
Women & Sports and Design 2,175,007
<PAGE>
Schedule 4
<PAGE>
Schedule 5
Data to be Collected
Customer Identification Data, as defined in Section 16.3.2.
<PAGE>
Schedule 6
----------
WHOIS Lookup
Sponsored by:
Oshman's Sporting Goods Inc., Services (OSHMANS5-DOM) OSHMANS.ORG
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Oshman's Sporting Goods, Inc. (WOMEN-AND-SPORT2-DOM) WOMEN-AND-SPORT.ORG
Oshman's Sporting Goods, Inc. (WOMENANDSPORTS-DOM) WOMENANDSPORTS.COM
Oshman's Sporting Goods, Inc.-Services (OSHSPORTS2-DOM) OSHSPORTS.ORG
Oshman's Sporting Goods, Inc.-Services (CHEAPSPORTS2-DOM) CHEAPSPORTS.COM
Oshman's Sporting Goods, Inc.-Services (OSHSPORTS-DOM) OSHSPORTS.COM
Oshman's Sporting Goods, Inc.-Services (CHEAPSPORTS-DOM) CHEAPSPORTS.ORG
Oshman's Sporting Goods, Inc.-Services (OSHSPORTS3-DOM) OSHSPORTS.NET
Oshman's Sporting Goods, Inc.-Services (CHEAPSPORTS3-DOM) CHEAPSPORTS.NET
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<PAGE>
Schedule 7
GSI Infrastructure and Practices
31 Capacity (pipe size)
31.1 Estimated average load. [*] megabits per second (Mbps).
----------------------
31.2 Estimated peak load. [*] Mbps.
-------------------
1.3 Burstable bandwidth. Up to [*] Mbps.
-------------------
1.4 Additional pipe capacity. Added when trend lines exceed [*] of
------------------------
burstable bandwidth.
2 Web Servers
2.1 Servers. Four (4) Sun Enterprise E-250 servers.
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2.2 Configuration.
-------------
2.2.1 Each server configured with [*] MHZ processors and [*] GB
memory to support Netscape and Apache.
2.2.2 Each server configured in 2x2 failover mode for reliability and
redundancy.
2.2.3 OS monitoring of internal faults, to provide indication of
hardware degradation and potential for maintenance,
replacement, and/or refurbishment.
2.2.4 OS and Accrue monitoring of loading, to provide indication of
average and peak loads.
2.2.5 Upon reaching 50% average threshold or 80% peak threshold, Web
server farm increased within 7 to 10 working days by 2
identical, fully-configured servers.
2.2.6 Upon reaching 10 E-250 servers, entire Web server farm replaced
by 2 Sun Enterprise E-3000 systems.
(a) Each E-3000 system configured in failover
mode with 6 processors and 6 GB memory.
3 Application Servers
3.1 Servers. Two (2) Sun Enterprise E-450 servers.
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3.2 Configuration.
-------------
3.2.1 Each server configured in failover mode with [*] MHZ processors
and [*] GB memory to support Web Logics.
3.2.2 Monitoring of loading, to provide indication of average and
peak loads.
3.2.3 Upon reaching 50% average threshold or 80% peak threshold,
Application server farm increased within 7 to 10 working days
by up to 8 identical, fully-configured E-450 servers.
<PAGE>
3.2.4 Upon reaching 8 E-450 servers, entire Application server farm
replaced by 2 Sun Enterprise E-4500 systems.
(a) Each E-4500 system configured in failover mode with 14
processors and 14 GB memory.
4 Database Servers
4.1 Servers. Two (2) Sun Enterprise E-450 servers.
-------
4.2 Configuration.
-------------
4.2.1 Each server configured in failover mode with [*] MHZ processors
and [*] GB memory to support Oracle 8.0.5.
(a) GSI uses Oracle 8.0.5 as its principal database management
system for all transactions.
4.2.2 One (1) Sun StorEdge 5100 with 54 GB RAID-5 storage used to
house the physical data.
4.2.3 Monitoring of loading, to provide indication of average and
peak loads.
4.2.4 Upon reaching 50% average threshold or 80% peak threshold,
Database server farm increased within 7 to 10 working days by
up to 6 identical, fully-configured E-450 servers.
4.2.5 Upon reaching 8 E-450 servers, entire Database server farm
replaced by 2 Sun Enterprise E-10000 systems.
(a) Each E-10000 system configured in failover mode with 32
processors and 64 GB memory
5 Security
5.1 Physical. GSI leases 4 temperature-controlled "cages" from Frontier
--------
Global Center (FGC) for secure housing of its server racks. Each cage
is fenced from floor to ceiling and secured with locks owned and
operated solely by GSI, holder of all keys. FGC is manned on a 24
hour, 7 day-a-week basis with video camera surveillance and positive
identification procedures for all entering and exiting personnel.
Access beyond FGC's vestibule is through a card key-controlled door or
through the card key-controlled freight elevator. Access to FGC's
cages is through a single door or through the card-key controlled
freight elevator. The card-key is signed in and out only by those
persons on the access list, and only upon surrender of that person's
driver's license.
<PAGE>
5.2 Logical. GSI provides secure processing through application of the
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Secure Socket Layer (SSL) to all pages upon which customers enter
private data. Private data includes credit card and address
information, as well as email addresses for login purposes. SSL keys
have been obtained from VeriSign, Inc., and are registered under the
names of each GSI partner. SSL is implemented through hardware cards
in two of the servers in the data center for redundancy. Additionally,
all servers have at least two software SSL servers in the event that
the servers with the hardware cards are inoperable. Within the Oracle
8.0.5 system, all customer credit card numbers and passwords are
encrypted.
<PAGE>
Schedule 8
Tools for Accessing Customer Data
Accrue software
SAS Statistical Analysis Software
GSI Partners.Net
<PAGE>
SCHEDULE 9
CONSIGNMENT TERMS
1. Delivery and Care of Goods.
(a) Retailer will deliver to GSI the consigned goods to GSI's warehouse
located at Memphis Tennessee or any other known location, or such
other location as GSI shall direct. Retailer will pay for all freight
and shipping charges for such delivery.
(b) Upon receipt of the consigned goods, GSI's personnel shall immediately
segregate the consigned goods such that any third party inspecting the
warehouse shall be immediately aware that the consigned goods are the
property of Retailer. GSI shall not commingle the consigned goods with
any other inventory of GSI or any third party.
(c) GSI shall maintain the consigned goods free and clear of any and all
liens, pledges or mortgages arising for or on behalf of GSI and shall
not permit the use of these goods as collateral or security for any of
GSI debts or other liabilities.
(d) Regardless of fault, all risk of loss whether by theft, shortage or
otherwise or damage from all causes whatsoever to any consigned goods
while in GSI's possession or control shall be borne solely by GSI.
(e) GSI acknowledges that from time to time Retailer may be required to
execute UCC financing statements with respect to the consigned goods
in its capacity as debtor under one or more loans.
(f) Retailer will not be liable for any delay or failure to deliver
products during the term of this Agreement.
2. Title to Goods. The consigned goods will remain the property of the
Retailer until they are sold in the regular course of business, except that
the GSI will be responsible for all shortages of stock. Retailer may
withdraw any or all of the consigned goods from GSI's warehouse at any time
or from time to time.
3. Sale of Goods.
(a) GSI will not sell Retailer's goods at less than the authorized prices.
Such prices will be furnished to GSI from time to time in the form of
price schedules.
(b) Retailer and GSI agree that prices applicable to the goods may be
changed periodically during the term of this Agreement, and that such
price changes may be made without prior notice.
4. Monthly Statements and Records
(a) GSI will furnish Retailer with monthly statements indicating all sales
transactions during the preceding month and the extent of current
inventory. These statements will be provided in accordance with the
Agreement.
(b) GSI will keep records of its sales that shall include the name of the
customer, date of sale, product description, and part number. Such
records shall be maintained and subject to Retailer's inspection in
accordance with this Agreement.
5. Expenses. GSI agrees to pay all expenses for the storage, cartage,
transportation, handling, sale and distribution of Retailer's goods, and
all expenses incident to those matters, except (i)
<PAGE>
transportation of goods to GSI, and (ii) on return of goods requested by
Retailer, or on account of defect in such goods, in which case such
expenses will be paid by Retailer.
6. Insurance. GSI will maintain full insurance on Retailer's goods in the name
of and for the benefit of the Retailer, in a form, with a company and in an
amount satisfactory to Retailer. If GSI fails to properly insure Retailer's
goods, GSI will become personally responsible for any loss of or damage to
Retailer's goods while in the custody of the GSI. Upon Retailer's request,
GSI shall provide Retailer with proof of insurance coverage for such
merchandise.
<PAGE>
Schedule 4
----------
OSHMAN'S
SUPERSPORTS USA
2302 Maxwell Lane, Houston, TX 77023
AC 713 1 928-3171 AC 800 1 877-6005
Revised October 1, 1999
SKI SKOOLS ARE LOCATED INSiDE THE FOLLOWING OSHMANS SUPERSPORTS STORES:
----------------------------------------------------------------------
Ski Skool at #1071 Baybrook, Houston, TX
Ski Skool at #1073 Mills Road. Houston, TX
Ski Skool at #1075 Gessner, Houston, TX
Ski Skool at #1270 Arlington, Arlington, TX
Ski Skool at #1470 Northcross, Austin, TX
<TABLE>
<CAPTION>
STORE SPEED
STORE NAME & ADDRESS TELEPHONE DIAL # STORE MANAGER
- -----------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
# 1003 POST OAK SUPER STORE
2131 S. Post Oak Blvd. 713 6224940 101 Bart Jennings, G.M.
Houston. TX 77056
# 1004 THE PARK
One Houston Center 713 650-3240 102 Ronnie Hube-:.
1200 McKinney Ave., Suite 444
Houston. TX 77010
1070 GESSNER
975 Gessner 713467-1155 000 Ed Marshall, G.M.
Houston. TX 77024
1071 BAYBROOK SUPER STORE
19801 Gulf Freeway, Suite 800 281 332-6818 016 Roy Hickman, G.M.
Webster, TX 77598
1072 DEEREROOK MARKET PLACE SUPER STORE
20416 Highway 59 N. 281 446-7519 019 Enoch Gatson, G.M.
Humble, TX 77338
1073 MILLS ROAD SUPER STORE
8625 F.M. 1960 West 281 807-9020 023 Ron Brooks, G. M.
Houston, TX 77070-5501
1075 THE FOUNTAINS
12730 Fountain Lake Circle 281 240-3388 039 Kate Kelsey, G. M.
Stafford, TX 77477
1230 CARUTH PLAZA SUPER STORE
9100 N. Central Expressway, #123 214363-8441 121 Mitchell Baker, G.M.
Dallas, TX 75231
1235 DENTON
Golden Triangle Mail 940 566-3902 123 Ted Wright
2201 South l-35E, Space P-;
Denton TX 76205-3191
254 RICHARDSON SQUARE
Richardson Square Mail #317 972 733-1593 129 Wayne Powell
501 South PIano Road,
Richardson TX 75
----------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Oshman's Sporting Goods Page 2 Revised 10/1/99
STORE SPEED
# STORE NAME and ADDRESS TELEPHONE DIAL # STORE MANAGER
<S> <C> <C> <C>
1270 ARLINGTON SUPER STORE
4620 South Cooper 817 467090 003 Ramon Munguia, G.M.
Arlington, TX 76017
1271 RIOGMAR SUPER STORE
1250 Green Oaks Road 817 731578 017 Mike Woodson, G.M.
FT. Worth,TX 76116
1272 MESQUITE SUPER STORE
3540 Emporium Circle 972 686-1885 025 Jim Blankenship\\7\\G.M.
Mesquite, TX 75150
1273 HULEN SUPER STORE
4830 S.W. Loop 820
over on Park Plaza, Bldg. A 817 377-1515 026 Randy Berend, G.M.
Fort Worth, TX 76109
1274 PLANO SUPER STORE
701 Taylor Drive 972 508-1992 027 George Patterson, G.M
Piano, TX 75074
1275 PRESTONWOOD SUPER STORE
15490 Dallas Parkway 972 991-3533 028 Jim Jones, G.M.
Dallas, TX 75248
1276 RED BIRD MALL
#1006 Red Bird Mail 972 296-1681 130 Candy Gaa
3662 W. Camp V'/isdom Road
Dallas, TX 75237
1277 NORTH RICHILAND CENTER
8500 Airport Frw'y., #100 817428-5512 031 Dick Nielsen, G.M.
N. Richland Hills, TX 76180
1278 IRVING SUPER STORE
3524 Airport Freeway W. 972 986-1110 032 Store Sheila Smith, G.M.
Irving, TX 75062 018 Req. #2 Office
1279 WOODLAND HILLS SUPER STORE
10143 E. 71st Street S. 918 252-0237 033 Rod Murray, G.M.
Tulsa, OK 74133
1260 TYLER
4023 5. Broadway 903 581-7888 131 Gary Hewitt
Tyler, TX 75701
1281 VISTA RIDGE VILLAGE
2325 5. Stemmons Frwy., #503 972 315-1500 035 Anna Halber:, G.M.
Lewisville, TX 75067
1283 SOUTHROADS SUPER STORE
Southroads Shopping Center 918 828-0100 173 J. R. Young, G.M.
5207 E. 41 Street South
Tulsa, OK 74135
1310 JERSEY GARDENS SUPER STORE
Jersey Gardens Mall - Space 80 908 965-1310 048 Tracy Herzog, G.M.
651 Kapkowski Road
Elizabeth. NJ 07201
1330 AUBURN HILLS SUPER STORE
Great Lakes Crossing
4220 Baldwin Road 248 333-1330 045 Jon Salamone, G.M.
Auburn Hills. Ml 48326-1224
1350 MINNEAPOLIS SUPER STORE
Mail of Americas 612 854-0507 029 Steve Anderson, G.M.
West Market, Suite W-222
Bloomington. MN 55425
-------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Oshman's Sporting Goods Page 3 Revised 10/1/99
STORE SPEED STORE MANAGER
# STORE NAME AND ADDRESS TELEPHONE DIAL #
<S> <C> <C> <C> <C>
1371 GREENVILLE SUPER STORE 864-627-3900 024 Jud Hines, G.M.
1025 Woodruff Rd., Space N250
Greenville, SC 29607
1376 KANSAS CITY SUPER STORE 913-393-1800 042 Todd Blanchard, G.M.
20050 West 151/st/ Street
Olathe, KS 66061
1403 NORTHSTAR MALL 210-344-9245 135 Donald Majors
2010 Northstar Mall
San Antonio, TX 78216
1432 KILLEEN 254-699-4741 140 Edith Cleaver, Acting Mgr.
2100 South W.S. Young Drive
Killeen, TX 76541
1436 POST OAK MALL 409-696-0546 141 Roy Phillips
1500 Harvey Road, Suite 1000
College Station, TX 7840
1451 BEAUMONT 409-832-7781 143 Debbie Foster
166 Gateway
Beaumont, TX 77701
1470 NORTHCROSS SUPER STORE 512-459-6541 004 John Pringle, G.M.
2525 W. Anderson Lane, Suite 600
Austin, TX 78757
1471 La Plaza Del Norte 210-341-1244 036 Anne Simpson, G.M.
125 N.W. Loop 410, Suite 240
San Antonio, TX 78216-5360
1477 SUNRISE MALL 361-993-0832 145 Scott Lichtenberger
5858-46 S. Padre Island Drive
Corpus Christi, TX 78412
1570 TALLAHASSEE SUPER STORE 850-386-3355 044 Jon Scott, G.M.
2415 North Monroe St., Suite 203
Tallahassee, FL 32303
1604 MEMPHIS 901-683-7724 163 Richard Crews
1185 Ridgeway Road
Memphis, TN 38119
1610 ELMWOOD 504-734-8206 166 Gina Kelley
1200 S. Clearview Pkwy.
Ste. 1146
New Orleans, LA 70123
1614 METAIRIE 504-887-4700 168 Pat Sammartino
4329 Veteran's Memorial Hwy.
Metairie, LA 70006
1615 RIVERSIDE MARKET 504-895-7791 169 Martin Silverstein
5300 Tohoupitoulas St.
Space G
New Orleans, LA 70115
1618 SLIDELL 504-649-0258 170 Bill Hornberger
1005 North Shore Square
150 North Shore Blvd.
Slidell, LA 70460
1850 PARKADE 806-792-1964 178 Eddie Lisama
Lubbock Shopping Parkade
7020 Quaker Avenue F
Lubbock, TX 79424-2322
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Oshman's Sporting Goods Page 4 Revised 1011/99
STORE SPEED
# STORE NAME and ADDRESS TELEPHONE DIAL # STORE MANAGER
<S> <C> <C> <C> <C>
3109 MT. VIEW - SAN ANTONIO
635 San Antonio Road 650941-8611 192 Mario Gutierrez
Mountain View, CA 94040
3170 MILPITAS SUPER STORE
1150 Great Mall Drive\\7\\ Anchor C 408 934-0280 265 Tom Clark, G.M.
Milpitas. CA 95035
3175 NOVATO
212 Vintage Way, Bldg. L-1 415 892-2060 015 Ryokan Kwong
Novato, Ca 94945
3202 TOPANGA
6600 Topanga Canyon Blvd. 818 8834352 206 Mike Lamont
Canoga Park, CA 91303
3217 W. LOS ANGELES
11110 W. Pico Blvd. 310 478-0446 218 Mike Perez
W. Los Angeles, CA 90064
3270 PALM DESERT SUPER STORE
72519 Highway 111 760 773-3270 022 Bill Blue, G.M.
Palm Desert, CA 92260
3271 CAMARILLO SUPER STORE
351 W. Ventura Blvd., Spac M-1 805 484-3175 043 Don Denham, G.M.
Camarillo, CA 93010
3272 West Covina
837 Plaza Drive 626 813-7566 040 Bob Nassau, G.M.
West Covina, CA 91790
3371 La Habra Marketplace
1531 West Imperial Hwy. 562 690-7900 037 Jim Markillie, G.M.
La Habra, CA 90631
3470 GROSSMONT CENTER
5500 Grossmont Ctr. Drive, Suite 279 619 6978160 030 Karl Chub, G.M.
LaMesa, CA 91942
3565 VILLALINDA
1404 villa Linda Mail 505 473-3555 099 Luke Alexander
4250 Cerrillos Road
Santa Fe, NM 87505
3566 LAS CRUCES
1420 Mesilla Valley Mall 505 522-0395 181 Norman Jaquez
700 5. Telshor
Las Cruces, NM 88001
3570 WINROCK SUPER SPORTS
Winrock Center #155 505 881-8082 008 Julee Dry, G.M.
2100 Louisiana Blvd. N.E.
Albuquerque, NM 87110-5412
Tempe, AZ 85282
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Oshman's Sporting Goods Page 5 Revised 10/1/99
STORE SPEED
# STORE NAME and ADDRESS TELEPHONE DIAL # STORE MANAGER
<S> <C> <C> <C> <C>
3573 ARROWHEAD CROSSING
7555 West Bell Road 623 979-5900 034 Brian Pinkalla, G.M.
Peoria, Arizona 85382
3574 TEMPE SUPER STORE
Arizona Mills MalI 480 831-6161 137 Ed Jones\\7\\G.M.
5000 Arizona Mills Circle, Ste. 135
Tempe. Arizona 85282
3575 NEWGATE MALL
3651 Wall Avenue - Suite 1102 801 392-5500 053
Ogden. Utah 84405
3670 SEATTLE SUPER STORE
1101 SuperMall Way, Suite 1333 253-735-7447 021 Ed Billingsley, G. M.
Auburn. WA 98001
3731 MILPITAS CLEARANCE STORE
1150 Great Mall Drive, Anchor C 408 935-8775 038 Carmeita Saad
Milpitas, CA 95035
</TABLE>
Various addresses for Corporate Office, Regional Offices, and Distribution on
Page 6 of this directory.
<PAGE>
EXHIBIT 10.44
Confidential Treatment has been requested with respect to portions of the
agreement indicated with an asterisk [*]. A complete copy of this agreement,
including the redacted terms, has been separately filed with the Securities and
Exchange Commission.
Global Sports Interactive, Inc.
______________________
Strategic Alliance Agreement
among
Global Sports Interactive, Inc.
and
Bluelight.Com LLC
<PAGE>
Table of Contents
<TABLE>
<CAPTION>
Section Page
- ------- ----
<S> <C>
1 Definitions................................................. 1
2 Development and Operation of the Web Site................... 2
3 Customer Service............................................ 3
4 Licensed Materials.......................................... 3
5 Supply of Merchandise and Warehousing....................... 3
6 Order Processing............................................ 4
7 Fulfillment of Accepted Orders and Returns.................. 5
8 Form of Communication....................................... 6
9 Payment..................................................... 6
10 No Merchandise Warranty..................................... 7
11 GSI Representations and Warranties.......................... 7
12 GSI Indemnification......................................... 7
13 Blue Representations and Warranties......................... 7
14 Blue Indemnification........................................ 7
15 Customer Data............................................... 8
16 Confidentiality............................................. 8
17 Limitation of Liability..................................... 10
18 Term and Termination........................................ 10
19 Force Majeure............................................... 11
20 Miscellaneous Provisions.................................... 11
</TABLE>
Schedules
- ---------
Schedule A: Designated Web Sites
Schedule B: Fulfillment Requirements Structure
i
<PAGE>
Strategic Alliance Agreement
This Strategic Alliance Agreement is made by and among Global Sports
Interactive, Inc., ("GSI") a Pennsylvania corporation with its principal place
of business located at 1075 First Avenue, King of Prussia, Pennsylvania, 19406,
Bluelight.Com LLC ("Blue") a Delaware limited liability company with its
principal place of business located at 150 Post, Suite 670 San Francisco, CA
94105, this 28th day of February, 2000 (the "Effective Date").
RECITALS
1 GSI is in the business of, inter alia, providing retailers with selection
----------
and acquisition of merchandise, warehousing and fulfillment functions in
connection with such retailers e-commerce business.
2 Blue is in the business of owning and operating an e-commerce enabled Web
site offering a comprehensive selection of goods, including Sporting Goods,
through its on-line stores.
3 Blue desires to outsource the selection and acquisition of merchandise,
warehousing and fulfillment functions for Sporting Goods in connection with
its on-line stores.
4 GSI desires to provide Blue selection and acquisition of merchandise,
warehousing and fulfillment services for sales of Sporting Goods through
the Blue on-line stores for shipment to customers within the United States.
5 GSI and Blue desire to enter into this Agreement in order to set forth
their respective rights and obligations with respect to GSI's selection and
acquisition of merchandise, warehousing and fulfillment functions for
Sporting Goods in connection with Blue's on-line stores.
AGREEMENT
GSI and Blue (each a "Party" and collectively, the "Parties"), in
consideration of the mutual promises contained herein, and intending to be
legally bound, agree as follows.
1 Definitions. Capitalized terms have the following meanings in this
Agreement.
1.1 Agreement means this Strategic Alliance Agreement.
---------
1.2 Blue Light Specials means Merchandise offered for sale on the Web Site
-------------------
at a price reduced by at least [*] percent ([*]) from (i) the
manufacturers suggested retail price if such price is available, or
(ii) if there is no manufacturers suggested price, the Retail Price;
or (iii) such other mutually agreed upon price.
1.3 Customer means a person who places an Order.
--------
1.4 Designated Web sites means the Web sites identified on Schedule A
--------------------
attached to this Agreement as such schedule may be amended by GSI.
Page 1 of 15
<PAGE>
1.5 GSI Content means illustrations, graphics, audio, video, text,
-----------
photographs, films, slides, prints, negatives, recordings, drawings,
sketches, artwork, digital images, and other renderings and
information, depicting, describing, identifying, or otherwise related
to Merchandise that (a) is reasonably available to GSI; (b) GSI is not
prohibited from licensing as required by this Agreement; and (c) is
generally available on Web sites operated by GSI.
1.6 GSI Product Database means the database maintained by GSI, in
--------------------
computer-readable format, of information regarding Merchandise which
information includes, without limitation, SKU numbers, Merchandise
availability, product availability, and pricing.
1.7 Launch Date means the date on which Sporting Goods on the Blue Web
-----------
Site are first available to the public and which are supplied by GSI
under this Agreement.
1.8 Licensed Materials means GSI Content and the GSI Product Database as
------------------
provided to Blue and as may be modified, revised, or updated in
accordance with this Agreement.
1.9 Markdowns means Merchandise offered for sale on the Designated Web
---------
sites or to Blue under this Agreement at a price reduced from its
original price and available only in limited quantities.
1.10 Merchandise means Sporting Goods merchandise generally offered for
-----------
sale through the Designated Web sites and other merchandise that GSI
may offer and Blue may, in its sole discretion, accept for sale under
this Agreement. Merchandise includes without limitation, Blue Light
Specials. Merchandise does not include (a) merchandise acquired by
GSI exclusively for, or manufactured exclusively for, or sold under a
trademark of, the retailer related to a Designated Web site; (b)
except for Blue Light Specials and Markdowns, merchandise offered for
sale through such Designated Web sites at a price reduced from its
original price and available only in limited quantities, including
without limitation end-of-season or excess merchandise; or (c)
merchandise that GSI is prohibited from providing to Blue by the
related licensee or licensor of licensed merchandise or the related
manufacturer.
1.11 Order means an order for Merchandise through the Web Site, through
-----
800 numbers or by any other electronic medium.
1.12 Retail Price means the lowest initial selling price that an item is
------------
originally made available to the public on the Designated Web sites.
1.13 SKU means a stock keeping unit of merchandise.
---
1.14 Sporting Goods means sports equipment, recreational equipment,
--------------
sporting apparel, and athletic footwear.
1.15 Web Site means the e-commerce enabled Web site operated by or on
--------
behalf of Blue as its online retail store for Sporting Goods.
1.16 Web means the Internet client-server hypertext distributed
---
information retrieval system known as the World Wide Web.
2 Development and Operation of the Web Site. Blue shall develop the Sporting
Goods portion of the Web Site and beginning on the Launch Date and
throughout the term of this Agreement, shall
Page 2 of 15
<PAGE>
operate and maintain the Web Site. Except for the services to be provided
by GSI hereunder, Blue shall be solely responsible for all operating
functions of the Web Site, including, but not limited to, Order processing,
second-level customer service (except as provided in Section 3),
development, maintenance and hosting of the Web Site. Subject to Section 5
hereof, Blue shall not offer Sporting Goods offered for sale by GSI under
this Agreement for sale through any Web site, any kiosks in any Kmart
stores or otherwise except through the Web Site unless such Sporting Goods
is acquired from GSI. At Blue's discretion, GSI will have the right to
operate kiosks in the Sporting Goods departments of Kmart stores.
3 Customer Service. GSI shall provide to Blue, Merchandise inventory levels
and availability, Order and shipping confirmations, Order shipping tracking
information as made available to GSI by the common carrier, and such other
Merchandise and Order information that is commercially reasonably available
to GSI and reasonably necessary for Blue's customer service, in compliance
with the standards set forth in Blue's Vendor Packet, a copy of which is
attached hereto as Schedule B. GSI shall provide such customer service to
Blue's as shall be mutually agreed upon by the parties. Additionally, GSI
shall use commercially reasonable efforts to satisfy the service level
standards with regard to fulfillment and customer services, as set forth on
Schedule B.
4 Licensed Materials
4.1 License to GSI Content and the GSI Product Database. GSI shall
---------------------------------------------------
provide to Blue the Licensed Materials subject to, and grants to Blue,
a personal, nontransferable (except in accordance with this
Agreement), nonexclusive, limited license for the term of this
Agreement to use, reproduce, display, transmit, and publicly perform
the Licensed Materials solely in connection with the sale of
Merchandise through the Web Site. Blue shall not (a) copy (except as
reasonably necessary to use the Licensed Materials in accordance with
this Agreement); (b) modify, adapt, translate or create derivative
works based upon the Licensed Materials; (c) remove, erase, or tamper
with any copyright or other proprietary notice printed or stamped on,
affixed to, or encoded or recorded in the Licensed Materials, or fail
to preserve all copyright and other proprietary notices in any copy of
any of the Licensed Materials made by Blue; or (d) sell, market,
license, sublicense, distribute, or otherwise grant to any person any
right to use the Licensed Materials without the prior consent of GSI.
Any and all rights not explicitly granted under this Agreement are
expressly reserved by and to GSI.
4.2 Updating the GSI Product Database. GSI shall update the information
---------------------------------
in the GSI Product Database no less frequently than once per day.
Such updates shall include the addition of SKU numbers and other
information for added SKUs, the removal of SKU numbers and other
information for unavailable SKUs, revised SKU availability,
information, pricing, shipping, and special handling fees, and
inventory availability provided throughout each day based upon Blue's
reasonable requirements.
5 Pricing, Supply of Merchandise and Warehousing
5.1 Exclusive Source of Sporting Goods. Subject to the exceptions in this
----------------------------------
Section 5.1, GSI shall be the exclusive source of Sporting Goods for
sale through the Web Site. GSI will be responsible for purchasing,
directly from manufactures, all Sporting Goods to be sold on the Web
Site. GSI will use commercially reasonable efforts to (i) maintain the
level of products currently available on the Designated Web sites, and
(ii) ensure that the availability of Sporting Goods on the Web Site
exceeds the current level of Sporting Goods available at a typical
Kmart store.
Page 3 of 15
<PAGE>
5.1.1 Unavailable Brand Names. Blue may obtain from third parties
-----------------------
for sale through the Web Site brand name Sporting Goods if such
brand name is not available through GSI provided that, if such
Sporting Goods subsequently become available through GSI, Blue
shall obtain such Sporting Goods from GSI under this Agreement
after the termination of such replacement third-party vendor
contracts, Blue agrees that it shall terminate, without causing
a breach, such replacement third-party vendor contract as soon
as possible after such Sporting Goods become available through
GSI, but, in no event, shall Blue be required to terminate any
such contract prior to 180 days after such Sporting Goods become
available through GSI.
5.1.2 Unavailable Products. Blue may obtain from third parties for
--------------------
sale through the Web Site specific products of brand name
Sporting Goods if Blue determines that such products are
regularly sold in Kmart stores and are not available through
GSI; provided that, if such products subsequently become
available through GSI Blue shall obtain such products from GSI
under this Agreement after the termination of such replacement
third-party vendor contracts. Blue agrees that it shall
terminate, without causing a breach, such replacement third-
party vendor contract as soon as possible after such Sporting
Goods become available through GSI, but, in no event, shall Blue
be required to terminate any such contract prior to180 days
after such Sporting Goods become available through GSI.
5.2 Blue Light Specials. GSI and Blue agree that during each twelve (12)
-------------------
month period of this Agreement, GSI and Blue will mutually agree to
provide no less than [*] Blue Light Specials for sale on the Web Site.
All procurement and fulfillment functions for products designated as
Blue Light Specials which GSI and Blue have agreed upon shall be
performed, at Blue's option, either by Blue or GSI. In the event that
Blue and GSI do not agree on any particular Blue Light Special, Blue
shall have the right to provide such Blue Light Special for sale on
the Web Site; provided, however, GSI shall not have any special or
extra obligations (beyond its regular contractual duties hereunder)
with respect to such Blue Light Special and Blue shall pay GSI such
amount for such Blue Light Special as set forth in Section 9.1 hereof.
Nothing herein restricts or otherwise limits Blue's rights and ability
to provide Blue Light Specials involving Sporting Goods in conjunction
with Kmart Corporation without GSI's involvement.
5.3 Inventory and Warehousing. GSI will arrange for all Merchandise that
-------------------------
it procures and makes available to Blue to be delivered, received and
stored by GSI. GSI's inventory of Merchandise to be provided for sale
on Blue's Web Site shall be maintained at facilities owned,
controlled, or under contract to GSI.
5.4 Pricing. Blue shall determine the pricing and product selection of
--------
Merchandise on the Web Site.
6 Order Processing
6.1 Blue Submission of Orders. Blue shall transmit Orders to GSI. Each
-------------------------
Order shall include
6.1.1 the Customer's name,
6.1.2 the recipient's name if different from the Customer's name,
6.1.3 the complete shipping address which address shall be a street
address and shall not be a post office box or similar address,
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<PAGE>
6.1.4 the Customer's telephone number,
6.1.5 the Customer's email address,
6.1.6 all shipping instructions, and
6.1.7 the SKU numbers, product descriptions, and prices charged by
Blue to the Customer for each SKU.
6.2 GSI's Acceptance or Rejection of Orders. GSI shall accept Orders for
---------------------------------------
shipment to addresses worldwide that include the information required
by Section 6.1 of this Agreement and for which the related Merchandise
is available; provided that such Orders to be shipped outside the
United States are shipped on Blue's shipping account. GSI shall reject
all other Orders.
6.3 GSI Confirmation. Within 4 hours of GSI's receipt of an Order, GSI
----------------
shall confirm to Blue GSI's receipt of such Orders which confirmation
shall state whether the Order was accepted, rejected due to incomplete
information, or rejected due to unavailable Merchandise.
7 Fulfillment of Accepted Orders and Returns
7.1 Assembly and Packaging. GSI shall assemble and package for shipping
----------------------
all accepted Orders in accordance with Schedule B attached to this
Agreement. Orders will be packaged under the Blue name and with no
reference to GSI and, whenever practicable, GSI will package and ship
SKUs in a single Order together. Blue shall provide initial packing
slip schema to GSI, with GSI to bear subsequent reproduction costs
consistent with GSI's current proportional costs with regard to the
Designated Web sites as such amounts are determined by GSI and
demonstrated to Blue.
7.2 Risk of Loss. As between the Parties, title and risk of loss shall
------------
pass to Blue upon GSI's delivery of the Merchandise to the common
carrier at the point of shipment.
7.3 Order Priority. All accepted orders, including without limitation,
--------------
accepted Orders, shall be processed by GSI in the order that they were
received by GSI.
7.4 Shipping Methods. GSI shall coordinate the shipping of all accepted
----------------
Orders with United Parcel Service through Blue's account. Blue shall
provide for shipping by United Parcel Service standard, United Parcel
Service second day, or United Parcel Service next day service or by
common carrier. GSI shall comply with the special shipping
instructions included with an Order unless the Merchandise does not
meet the shipper's requirements for the requested methods.
7.5 Returns. For all Merchandise shipped by GSI on behalf of Blue, GSI
-------
shall provide instructions on how to return Merchandise directly to
the fulfillment center or other location designated by Blue. GSI shall
accept the return of Merchandise sold through the Web Site that is
returned by the Customer for any reason. GSI shall accept the return
of Merchandise sold through the Web Site that is returned to GSI
unused and in a condition suitable for resale as new goods. GSI shall
be obligated to accept the return of any Merchandise under this
Section 7.5 only if such Merchandise (a) is returned to GSI within 30
days of GSI's issuance of its return authorization and (b) which
return authorization was issued by GSI within 30 days of GSI's
shipment of the Merchandise. Blue will make commercially reasonable
efforts to ensure that, to the extent any merchandise sold by Blue is
returnable at Kmart stores, the Merchandise sold hereunder will also
be returnable
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<PAGE>
at Kmart stores, whether or not Kmart carries such Merchandise in its
stores. GSI shall credit Blue for [*] of the amount Blue paid to GSI
for such Merchandise returned.
7.6 Reports. GSI shall transmit to Blue the reports identified on and in
-------
accordance with Schedule B.
8 Form of Communication. All Orders transmitted by Blue and all confirmations
of Orders and shipments and reports transmitted by GSI pursuant to this
Agreement shall be provided in a form reasonably acceptable to the recipient
and shall be communicated electronically.
9 Payment
9.1 Price for Merchandise. Blue shall pay to GSI, for each unit of
---------------------
Merchandise sold on the Web Site, an amount equal to the [*]; provided
that during the [*] month period commencing on the Effective Date, the
[*], shall be the price used for the purpose of the calculation in
clause (b), unless [*]; provided further, that after the end of such
[*] month period, [*].
9.2 Markdowns. Blue shall pay to GSI, for Markdowns sold on the Web Site,
----------
an amount equal to [*] of the marked down selling price provided by
GSI.
9.3 Other Charges. In addition to amounts due GSI for Merchandise, Blue
-------------
Light Specials and Markdowns, Blue shall pay to GSI its actual costs
in connection with shipping Orders, its actual costs for post-delivery
assembly of Merchandise or other similar post-delivery services, any
and all other amounts due GSI under this Agreement, and for taxes, if
any, assessed on Orders paid by GSI unless such taxes are paid by
Blue.
9.4 Invoices. GSI shall submit invoices to Blue for amounts due under
--------
this Agreement on the last day of each month.
9.5 Payment. Blue shall pay all amounts due under this Agreement within
--------
15 days of the invoice date. All payments shall be by wire transfer to
such account as GSI may designate.
9.6 Late Payment. Interest at the rate of one and one-half percent (1.5%)
------------
per month (or, if lower, the maximum rate permitted by applicable law)
shall accrue from the date due to the date paid on any amount not paid
by when such amount was due.
9.7 Advertising Revenue.
-------------------
9.7.1 Nothing herein limits Blue's right and ability to sell banner
and other types of advertisements (the "Advertisements") on the
Sporting Goods section of the Web Site at its own cost and
expense.
9.7.2 Blue shall pay to GSI [*] of all "Net Revenue Received" from
the sale of any Advertisements to [*], based on those [*]
identified in writing by [*] (which [*] list shall be updated
by [*]. For purpose of this Agreement, Net Revenue Received
shall equal the cash consideration actually received from an
advertiser, less any selling expenses incurred by Blue in the
sale of such Advertisement; provided, however, such selling
expenses cannot exceed [*] of the aggregate amounts received
for such Advertising. All amounts due from Blue to GSI
hereunder shall
Page 6 of 15
<PAGE>
be due and payable monthly by the 30th day after the end of the
calendar month in which Net Revenue Received was received by or
on behalf of Blue.
10 No Merchandise Warranty. Blue acknowledges that GSI is not the manufacturer
of the Merchandise. GSI agrees to pass on to Blue any and all warranties
made to GSI by manufacturers and vendors of the Merchandise, if any such
warranties are made and if such warranties can be passed on to Blue. EXCEPT
FOR WARRANTIES, IF ANY, FROM MANUFACTURERS OR VENDORS OF THE MERCHANDISE,
GSI IS FURNISHING THE MERCHANDISE TO CUSTOMERS "AS IS," WITHOUT ANY, AND
DISCLAIMS ALL, WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING,
WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, OR
FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTY AGAINST INFRINGEMENT OF
PATENTS, COPYRIGHTS, TRADE SECRETS, OR OTHER INTELLECTUAL PROPERTY RIGHTS.
11 GSI Representations and Warranties. GSI represents and warrants that during
the term of this Agreement, GSI Content as delivered to Blue shall not (a)
infringe any intellectual property rights of any person or any rights of
publicity, personality, or privacy of any person; (b) violate any law,
statute, ordinance, or regulation (including without limitation, the laws
and regulations governing export control, unfair competition, anti-
discrimination, consumer protection, or false advertising); (c) be
defamatory, libelous or trade libelous, unlawfully threatening, or
unlawfully harassing; (d) be obscene, pornographic, or indecent; or (e)
violate any community or Internet standard.
12 GSI Indemnification. GSI shall defend Blue and its affiliates, and the
directors, officers, employees, and agents of Blue and its affiliates
("Indemnitees"), at GSI's sole cost and expense, against any and all third-
party claims, actions, suits, or other proceedings against Indemnitees (a)
arising from or related to any injuries, including without limitation,
death, to persons or any damage to property occurring as a result of the
negligence or willful misconduct of GSI (or its employees) or GSI's breach
of this Agreement or (b) arising from or related to any breach of any of
GSI's representations or warranties in this Agreement, or (c) based on the
GSI Content, and GSI shall indemnify and hold Indemnitees harmless from and
against any and all judgments, losses, liabilities, damages, costs, and
expenses (including without limitation, reasonable attorney's fees and
attorney's disbursements) arising out of or incurred in connection with such
claims, actions, suits, or other proceedings. GSI shall have the right to
control the defense and settlement of any claims or actions that GSI is
obligated to defend, but Blue shall have the right to participate in such
claims or actions at its own cost and expense.
13 Blue Representations and Warranties. Blue represents and warrants that
during the term of this Agreement, it shall have and abide by the terms of
its Web site privacy policy, which policy shall be consistent with the then
current generally accepted privacy policies of retail e-commerce Web sites.
14 Blue Indemnification. Blue shall defend GSI and its affiliates, and the
directors, officers, employees, and agents of GSI and its affiliates
("Indemnitees"), at Blue's sole cost and expense, against any and all third-
party claims, actions, suits, or other proceedings against Indemnitees (a)
alleging the failure to pay or underpayment of any sales or similar tax
arising from the sale of Merchandise through the Web Site; (b) arising from
or related to any injuries, including without limitation, death, to persons
or any damage to property occurring as a result of the negligence or willful
misconduct of Blue or Blue's employees; (c) alleging claims based on the Web
Site (exclusive of any GSI Content); (d) by a Customer alleging breach of
warranty; or (e) arising from or related to any breach of any of Blue's
representations or warranties in this Agreement, and shall indemnify and
hold Indemnitees harmless from and against any and all judgments, losses,
Page 7 of 15
<PAGE>
liabilities, damages, costs, and expenses (including without limitation,
reasonable attorney's fees and attorney's disbursements) arising out of or
incurred in connection with such claims, actions, suits, or other
proceedings. Blue shall have the right to control the defense and settlement
of any claims or actions that Blue is obligated to defend, but GSI shall
have the right to participate in such claims or actions at its own cost and
expense.
15 Customer Data. All "User Data" and related information collected from
Customers' use of the Web Site and Orders shall be the [*]and shall be
deemed Confidential Information of [*] under Section 16 of this Agreement.
[*] For purposes of this Agreement, "User Data" shall mean all names,
mailing addresses, shipping addresses, telephone numbers, e-mail addresses,
purchasing data and any other identifying information submitted or disclosed
by Customers.
16 Confidentiality
16.1 Confidential Information. The term "Confidential Information" means
------------------------
any and all technical and non-technical information including, without
limitation, patent, copyright, trade secret, and proprietary
information, techniques, sketches, drawings, models, inventions, know-
how, processes, apparatus, equipment, algorithms, software programs,
software source documents, and formulae related to the current,
future, and proposed products and services of either Party, and
includes without limitation, their respective information concerning
research, development, design details and specifications, engineering,
financial information, procurement requirements, purchasing,
manufacturing, key personnel, suppliers, customers, prospective
customers, policies or operational methods, plans for future
developments, business forecasts, sales and merchandising, and
marketing plans and information, in whatever form disclosed.
Confidential Information does not include items that were
16.1.1 possessed by the receiving Party prior to receipt or access
pursuant to this Agreement other than through prior disclosure
by the disclosing Party as evidenced by the receiving Party's
written records;
16.1.2 independently developed by the receiving Party without the
benefit of disclosure by the disclosing Party as evidenced by
the receiving Party's written records;
16.1.3 published or available to the general public other than through
a breach of this Agreement or breach by a third party of its
confidentiality obligations to the disclosing Party;
16.1.4 obtained by the receiving Party from a third party with a valid
right to disclose such Confidential Information, provided that
such third party is not under a confidentiality obligation to
the disclosing Party; or
A combination of features or disclosures shall not be deemed to fall
within the foregoing exclusions merely because individual features are
published or available to the general public or in the rightful
possession of the receiving Party unless the combination is published
or is available to the general public or in the rightful possession of
the receiving Party.
16.2 Obligation of Confidentiality. Each Party shall permanently hold,
-----------------------------
and cause their respective personnel to hold, Confidential Information
in strict confidence. The receiving Party may disclose Confidential
Information that is required to be disclosed by
Page 8 of 15
<PAGE>
governmental agencies, regulatory authorities, or pursuant to court
order only to the extent such disclosure is required by law and only
provided that the receiving Party provides reasonable prior notice to
the disclosing Party of the disclosure. Except as specifically
permitted by this Agreement, neither Party shall duplicate or use, or
permit the duplication or use of, Confidential Information or disclose
or permit the disclosure of Confidential Information to any person or
entity. Each Party shall limit the duplication and use of Confidential
Information to the performance of its obligations under this Agreement
and shall limit access to and possession of Confidential Information
only to those of its personnel whose responsibilities under this
Agreement reasonably require such access or possession. Each Party
shall advise all such persons before they receive access to or
possession of Confidential Information of the confidential nature of
the Confidential Information and require them to abide by the terms of
this Agreement. Any duplication, use, disclosure, or other act or
omission by any person that obtains access to or possession of
Confidential Information through the receiving Party that would be a
breach of this Agreement if committed by the receiving Party is deemed
a breach of this Agreement by the receiving Party for which the
receiving Party shall be responsible. If disclosure of a Party's
Confidential Information is sought pursuant to judicial process, the
Party receiving such request shall promptly notify the Party whose
Confidential Information is so requested and shall cooperate with such
Party to maintain the confidentiality of such Confidential Information
(e.g., through opposition proceedings or a protective order).
16.3 Ownership of Confidential Information and Other Materials. All
---------------------------------------------------------
Confidential Information, and any Derivatives (as defined below)
thereof whether the Derivative was created by the disclosing or
receiving Party, shall remain the property of the disclosing Party and
except as specifically provided by this Agreement, no license or other
rights to such Confidential Information or Derivatives is granted or
implied by this Agreement. For purposes of this Agreement,
"Derivatives" shall mean (a) for copyrightable or copyrighted
material, any translation, abridgement, revision or other form in
which an existing work may be recast, transformed or adapted; (b) for
patentable or patented material, any improvement thereon; and (c) for
material that is or may be subject to protection as a trade secret,
any new material derived from such material, including new material
which may be protected by copyright, patent, or trade secret or other
proprietary rights.
16.4 Return of Confidential Information. Each Party shall deliver, or at
----------------------------------
the disclosing Party's option destroy, all Confidential Information
and deliver, or at the disclosing Party's option destroy, all copies
to the disclosing Party upon the expiration or termination of this
Agreement or at the disclosing Party's request. Notwithstanding the
foregoing, with Blue's prior written consent, GSI may retain such
Confidential Information of Blue as may be reasonably necessary to
document its performance under this Agreement but such Confidential
Information shall remain subject to this Section 16.
16.5 Remedy. The Parties each acknowledge that the disclosing Party will
------
be irreparably harmed if the receiving Party's obligations under this
Section 16 are not performed, and that the disclosing Party would not
have an adequate remedy at law in the event of a violation by the
receiving Party of such obligations. The receiving Party agrees and
consents that the disclosing Party shall be entitled, in addition to
all other rights and remedies to which the disclosing Party may be
entitled, to have a decree of specific performance or an injunction
issued requiring any such violation to be cured and enjoining all
persons involved from continuing the violation. The existence of any
claim or cause of action that the receiving Party or any other person
may have against the disclosing Party
Page 9 of 15
<PAGE>
shall not constitute a defense or bar the enforcement of this Section
16. The receiving Party acknowledges that the restrictions in this
Section 16 are reasonable and necessary to protect legitimate business
interests of the disclosing Party.
17 Limitation of Liability. Except for (i) the parties' indemnification
obligations pursuant to sections 12 and 14, (ii) any liability due to breach
of [*] obligations concerning [*], and (iii) any liability for money owed by
Blue to GSI for the purchase of Merchandise hereunder, the total liability
of either party under this Agreement shall under no circumstances exceed the
amounts actually paid by Blue to GSI during the immediately preceding 12
months under this Agreement. Under no circumstances shall either party be
liable to the other or to any other person for lost revenues, lost profits,
loss of business, or any indirect, incidental, special, punitive, or
consequential damages of any nature, regardless of legal theory and whether
or not foreseeable, even if the exclusive remedies provided by this
agreement fail of their essential purpose and even if either Party has been
advised of the possibility or probability of such damages. The remedies
specifically provided by this Agreement and the provisions of this Section
17 set forth the parties' exclusive remedies and allocate between the
parties the risks under this Agreement, some of which may be unknown or
indeterminable. Such limitations were a material inducement for each party
to enter into this Agreement, and the Parties have relied upon such
limitations in determining whether to enter into this Agreement.
18 Term and Termination
18.1 Term. The term of this Agreement shall commence on the Effective Date
----
and continue until 11:59 p.m. Philadelphia time on the [*] anniversary
date of the Launch Date unless earlier terminated in accordance with
Section 18.2 or 18.3 below; provided, however, that if at least 30
days, but not more than 60 days, prior to the [*] anniversary date of
the Launch Date, [*].
18.2 Termination by Blue. Blue may terminate this Agreement immediately
-------------------
by giving notice of termination to GSI and without prejudice to any
other rights or remedies Blue may have, upon the occurrence of any of
the following events:
(1) GSI breaches any of its material obligations under this
Agreement and does not cure the breach within 30 days after
GSI's receipt of Blue's notice of the breach; or
(2) a voluntary petition is commenced by GSI under the
Bankruptcy Code, as amended, 11 U.S.C. (S) 101 et seq; GSI
has an involuntary petition commenced against it under the
Bankruptcy Code and such petition is not dismissed within 60
days after filing; GSI becomes insolvent; or any substantial
part of GSI's property becomes subject to any levy, seizure,
assignment, application, or sale for or by any creditor or
governmental agency; or liquidates or otherwise discontinues
all or a significant part of its business operations.
18.3 Termination by GSI. GSI may terminate this Agreement immediately by
------------------
giving notice of termination to Blue and without prejudice to any
other rights or remedies GSI may have, upon the occurrence of any of
the following events:
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<PAGE>
(1) Blue breaches any of its material obligations under this
Agreement and does not cure the breach within 30 days after
Blue's receipt of GSI's notice of the breach; or
(2) a voluntary petition is commenced by Blue under the
Bankruptcy Code, as amended, 11 U.S.C. (S) 101 et seq; Blue
has an involuntary petition commenced against it under the
Bankruptcy Code and such petition is not dismissed within 60
days after filing; Blue becomes insolvent; or any
substantial part of Blue's property becomes subject to any
levy, seizure, assignment, application, or sale for or by
any creditor or governmental agency; or liquidates or
otherwise discontinues all or a significant part of its
business operations.
18.4 Effect of Expiration or Termination. Upon the expiration or
-----------------------------------
termination of this Agreement, whether under this Section 18 or
otherwise, each Party shall return or destroy all Confidential
Information of the other Party pursuant to Section 16, Blue shall
discontinue all use of the Licensed Materials, and Blue shall promptly
return to GSI all copies of Licensed Materials in Blue's possession.
Blue shall remain liable for all payments due GSI, and GSI for all
refund credits, with respect to the period ending on the date of
termination.
18.5 Survival. Sections 1, 10, 11, 12, 13, 14, 15, 16, 17, 18.4, 18.5,
--------
19, and 20 of this Agreement survive any expiration or termination of
this Agreement.
19 Force Majeure. Except for the obligation to pay money, neither Party shall
be liable to the other Party for non-performance of this Agreement in whole
or in part, if (a) the non-performance is caused by the other Party or
events or conditions beyond that Party's reasonable and actual control and
for which that Party is not responsible under this Agreement, (b) the Party
gives prompt notice under Section 20.1, and (c) the Party makes all
commercially reasonable efforts to perform.
20 Miscellaneous Provisions
20.1 Notice. All notices, consents, and other communications under or
------
regarding this Agreement shall be in writing and shall be deemed to
have been received on the earlier of the date of actual receipt, the
third business day after being mailed by certified mail, or the first
business day after being sent by a reputable overnight delivery
service. Any notice may be given by facsimile, provided that a signed
written original is sent by one of the foregoing methods within 24
hours thereafter. Blue's address for notices is
Bluelight.Com, Inc.
150 Post Street
San Francisco, CA 94105
Attention: CEO
Facsimile: [*]
with a copy to
Cooley Godward LLP
Five Palo Alto Square
Palo Alto CA 94306
Attention: [*]
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<PAGE>
Facsimile: [*]
GSI's address for notices is
Global Sports Interactive, Inc.
1075 First Avenue
King of Prussia, PA 19406
Attention: Chief Executive Officer
Facsimile: (610) 265-2866
with a copy to: Global Sports Interactive, Inc.
1075 First Avenue
King of Prussia, PA 19406
Attention: General Counsel
Facsimile: (610) 265-2866
Either Party may change its address for notices by giving written
notice of the new address to the other Party in accordance with this
Section 20.1.
20.2 Competitor Restrictions. GSI agrees that during the calendar year
-----------------------
ending December 31, 2000, GSI shall not operate an e-commerce Sporting
Goods business for Wal-Mart, Target or Costco, any entity operating
under the same brand name as any of the foregoing, or any subsidiary
or affiliate of any of the foregoing.
20.2 Assignment. This Agreement may not be assigned by either Party
----------
without the prior written consent of the other Party, which consent
shall not be unreasonably withheld. Notwithstanding the foregoing,
(a) either Party may assign this Agreement upon notice to, and without
the consent of, the other Party to any person or entity that acquires
the assignor's business or substantially all of the assignor's assets
by merger, stock sale, or other means provided that the assignee is
capable of performing assignor's obligations under this Agreement and
(b) GSI may assign this agreement upon notice to Blue to a subsidiary
of GSI or to any subsidiary of Global Sports, Inc., again provided
that the assignee is capable of performing assignor's obligations
under this Agreement. Any attempted assignment in violation of this
Section 20.2 shall be void.
20.3 No Third-Party Beneficiaries. The Parties do not intend, nor shall
----------------------------
any clause be interpreted, to create under this Agreement any
obligations or benefits to, or rights in, any third party from either
Blue or GSI.
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<PAGE>
20.4 Independent Contractor. GSI and Blue are each independent
----------------------
contractors and neither Party shall be, nor represent itself to be,
the franchiser, partner, broker, employee, servant, agent, or legal
representative of the other Party for any purpose whatsoever. Neither
Party is granted any right or authority to assume or create any
obligation or responsibility, express or implied, in behalf of, or in
the name of, the other Party, or to bind the other Party in any
matter or thing whatsoever. The Parties do not intend to form a
partnership or joint venture as a result of this Agreement.
20.5 Publicity. Neither Party shall issue any press release regarding
---------
this Agreement or otherwise disclose the existence or terms of this
Agreement without the prior written consent of the other Party except
to the extent such disclosure is required by law, including, but not
limited to, required disclosure to the Securities and Exchange
Commission, and only if the disclosing Party provides reasonable
prior notice to other Party of the disclosure. If GSI determines that
it is required to disclose the terms hereof to the Securities and
Exchange Commission, GSI agrees to seek confidential treatment of any
such disclosure of financial terms.
20.6 Cumulative Remedies. All remedies available to either Party for
-------------------
breach of this Agreement are cumulative and may be exercised
concurrently or separately, and the exercise of any one remedy shall
not be deemed an election of such remedy to the exclusion of other
remedies.
20.7 Waiver. The waiver or failure of either Party to exercise in any
------
respect any right provided hereunder shall not be deemed a waiver of
such right in the future or a waiver of any other rights established
under this Agreement.
20.8 Enforceability. This Agreement shall be enforceable notwithstanding
--------------
the existence of any claim or cause of action one Party may have
against the other Party.
20.9 Severability. Should any term or provision of this Agreement be held
------------
to any extent unenforceable, invalid, or prohibited under law, then
such provision shall be deemed restated to reflect the original
intention of the Parties as nearly as possible in accordance with
applicable law and the remainder of this Agreement The application of
such term or provision to persons, property, or circumstances other
than those as to which it is invalid, unenforceable, or prohibited,
shall not be affected thereby, and each term and provision of this
Agreement shall be valid and enforceable to the fullest extent
permitted by law.
20.10 Headings. Section headings are for reference only and shall not
--------
affect the interpretation of this Agreement.
20.11 Successors in Interest. This Agreement and all of the provisions in
----------------------
this Agreement shall be binding upon and inure to the benefit of the
successors in interest and assigns of the Parties, subject to the
provisions of Section 20.2 of this Agreement.
20.12 Applicable Law. This Agreement shall be governed in all respects by
--------------
the laws of the State of Delaware without giving effect to its rules
relating to conflict of laws. In any action between the parties
arising out of or relating to this Agreement, the prevailing party
shall be entitled to an award of its reasonable legal fees and
expeneses in connection therewith.
20.13 Order of Precedence. Any and all ambiguities or inconsistencies
-------------------
between a Schedule and this document shall be resolved by giving
precedence to the Schedule over this document. Silence on any matter
in a Schedule will not negate the provision in this document as to
that matter.
20.14 Entire Agreement. This Agreement and the attached Schedules
----------------
constitute the complete and exclusive statement of the agreement
between the Parties with respect to the subject matter of this
Agreement, and this Agreement supersedes any and all prior oral or
written communications, proposals, representations, and agreements.
It may be amended only by mutual agreement expressed in writing and
signed by both Parties.
20.15 Counterparts. This Agreement may be executed in any number of
------------
separate counterparts each of which when executed by and delivered to
the other Party shall be an original as against the Party whose
signature appears thereon, but all such counterparts shall together
constitute one and the same instrument.
Page 13 of 15
<PAGE>
The Parties accept this Agreement and have caused this Agreement to be
executed and do each hereby represent and warrant that its respective signatory
whose signature appears below has been and is on the date executed duly
authorized by all necessary and appropriate corporate action to execute this
Agreement on its behalf.
Global Sports Interactive, Inc. Bluelight.com LLC
By: ________________________ By: ________________________
Name: Michael R. Rubin Name: Mark H. Goldstein
Title: Chief Executive Officer Title: Chief Executive Officer
Date: February 28, 2000 Date: February 28, 2000______
Page 14 of 15
<PAGE>
Schedule A
Designated Web Sites
The Designated Web sites are the Web sites accessible through the Web at
the uniform resource locators listed on this Schedule A. Terms defined in the
Agreement have the same meaning in this Schedule A.
Dunham's Sports at www.dunhams.com
MC Sports at www.mcsports.com
Oshman's Sporting Goods at www.oshmans.com
Sport Chalet at www.sportchalet.com
The Athlete's Foot at www.theathletesfoot.com
The Sports Authority at www.thesportsauthority.com
Page 15 of 15
<PAGE>
SCHEDULE B
The parties agree that they shall cooperate in good faith during the
term of the Agreement to mutually agree upon appropriate guidelines and
specifications with regard to, inter alia, the service levels referred to in
----------
Section 3, certain order processing, fulfillment and return processes and
performance metrics, including the reports referred to in Section 8, data
interchange and other such processes and procedures as shall needed between the
parties.
Page 16 of 15
