{"id":42110,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/bulk-subscription-sales-agreement-purchasepro-com-inc-and.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"bulk-subscription-sales-agreement-purchasepro-com-inc-and","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/bulk-subscription-sales-agreement-purchasepro-com-inc-and.html","title":{"rendered":"Bulk Subscription Sales Agreement &#8211; PurchasePro.com Inc. and America Online Inc."},"content":{"rendered":"<pre>                        BULK SUBSCRIPTION SALES AGREEMENT\n\n      This Bulk Subscription Sales Agreement (\"Agreement\") is entered into as of\nthe 1st day of December, 2000, by and between PurchasePro.com, Inc.\n(\"PurchasePro\") and America Online, Inc. (\"AOL\").\n\n      WHEREAS, the Parties are currently jointly developing an e-commerce\nmarketplace for subscribers to the services of AOL and its affiliates, including\nits Netscape subsidiary (\"Subscribers\") for use in conjunction with\nPurchasePro's global marketplace (the \"Global Marketplace\"); and\n\n      WHEREAS, to encourage use of the e-marketplace being jointly developed by\nthe Parties by Subscribers, AOL desires to purchase on behalf of such\nSubscribers subscriptions to the Global Marketplace with full access for\nSubscribers to all rights and benefits available to members of the Global\nMarketplace, a description of which is attached hereto as Exhibit B;\n\n      NOW, THEREFORE, the parties hereto hereby agree as follows:\n\n      1. Bulk Subscriptions. Subject to the terms and conditions set forth\nherein, AOL hereby purchases from PurchasePro, and PurchasePro sells to AOL, a\nsufficient number of subscriptions to the Global Marketplace (\"Promotional\nSubscriptions\") for AOL to allocate among Subscribers as AOL determines in its\nsole discretion, at a price of $49.00 per Subscriber per month. A Promotional\nSubscription shall provide Subscribers with access to rights and benefits at\nleast a great as to any other PurchasePro premium marketplace service. Without\nlimiting the foregoing and at a minimum, Subscribers receiving Promotional\nSubscriptions shall have access to all of the services set forth on Exhibit B.\nAfter the Promotional Period (as defined below), PurchasePro shall, in an opt-in\nformat reasonably acceptable to AOL, offer Subscribers the opportunity to\ncontinue with the premium membership referenced in Exhibit B at PurchasePro's\nstandard rates. PurchasePro shall provide all Subscribers, including holders of\nthe premium membership or a standard membership, with all telephone and online\ncustomer support available to other members holding the same or similar\nmemberships.\n\n      2. Schedule of Purchases. AOL shall purchase 100,000 Promotional\nSubscriptions to the Global Marketplace hereunder for the period between\nDecember 1, 2000 and December 31, 2000, and shall have the option to purchase\nPromotional Subscriptions to the Global Marketplace for additional monthly\nperiods upon notice to PurchasePro no later than 5 days after the beginning of\nsuch monthly period (all such monthly periods shall be referred to herein\ncollectively as the \"Promotional Period\").\n\n3.    Distribution of Promotional Subscriptions Sharing of Subscription Fee\n      Revenue. The Parties acknowledge that AOL will offer the Promotional\n      Subscriptions to the Global Marketplace to Subscribers. The Parties agree\n      that after the initial two month free subscription period (or such large\n\n\n                                      -1-\n\n\n      period as mutually agreed by the Parties) included as part of such\n      Promotional Subscriptions, AOL shall have no liability for any\n      subscription fee (subscription fees collected from Promotional Subscribers\n      shall be referred to herein as \"Subscription Fee Revenue\"). After the\n      Promotional Period, PurchasePro shall pay AOL in perpetuity fifty (50%)\n      percent of all Subscription Fee Revenue received and owed to AOL as\n      described herein and paid on a quarterly basis within thirty (30) days\n      following the end of the quarter in which such amounts were generated. All\n      payments shall be accompanied by a report in a format and substance\n      reasonably acceptable to AOL setting forth all relevant financial\n      information supporting such payment.\n\n4.    Term. The term of this Agreement shall commence as of the date hereof and\n      continue until January 31, 2001; provided that Section 3 and 7 and the\n      provisions set forth in Section 7 of Exhibit A shall survive any\n      termination hereof\n\n5.    Obligations.\n\n      A.    At such times as AOL shall determine, AOL shall notify Subscribers\n            selected by AOL that such Subscribers have been chosen to receive a\n            Promotional Subscription to the Global Marketplace hereunder and\n            become a full Member thereon for the periods set forth in Section 2.\n            AOL may notify its Subscribers thereof in any manner determined by\n            AOL in its sole discretion, including notification by transmission\n            of e-mails thereto.\n\n      B.    PurchasePro shall make available user ID's and passwords for each\n            such Subscribers selected by AOL necessary to access the Global\n            Marketplace, coded to identify such users as a Subscriber and Member\n            of the AOL-branded marketplace on the Global Marketplace. Any\n            PurchasePro messaging to Promotional Subscribers during the\n            Promotional Period shall be subject to AOL's prior approval, which\n            approval shall not be unreasonably withheld, conditioned or delayed.\n\n6.    Manner and Method of Payment to PurchasePro. For each month during the\n      Promotion Period with respect to which AOL is purchasing Promotional\n      Subscriptions pursuant to Section 2 hereunder, AOL shall pay $4,900,000 to\n      PurchasePro, due on or before the last day of such month. In no event\n      shall AOL's liability for the purchase of Promotional Subscriptions\n      hereunder in any one month during the Promotional Period exceed a total of\n      four million nine hundred thousand dollars ($4,900,000) for such month.\n\n7.    Auditing Rights. PurchasePro will maintain complete, clear and accurate\n      records of all expenses, revenues and fees in connection with the\n      performance of this Agreement. For the sole purpose of ensuring compliance\n      with this Agreement, AOL (or its representative) will have the right to\n      conduct a reasonable and necessary inspection of portions of the books and\n      records of PurchasePro which are relevant to PurchasePro's performance\n      pursuant to this Agreement. Any such audit may be conducted after 20\n\n\n                                      -2-\n\n\n      business days prior written notice is given by AOL to Purchase Pro;\n      provided, however, that such audits may not be conducted more than once in\n      any given twelve (12) month period and the same time period may not be\n      audited more than once. The audit report and all of the books and records\n      reviewed by AOL shall be Purchase Pro's Confidential Information. AOL\n      shall bear the expense of any audit conducted pursuant to this Section 7\n      unless such audit shows an error in AOL's favor amounting to a deficiency\n      to AOL in excess of 5% of the actual amounts paid and\/or payable to it\n      under this Agreement, in which event Purchase Pro shall bear the\n      reasonable expenses of the audit. Purchase Pro shall pay AOL the amount of\n      any deficiency or AOL shall pay Purchase Pro the amount of any overpayment\n      finally determined as a result of such audit within 30 days after such\n      final determination.\n\n8.    Standard Terms and Condition. PurchasePro's Standard Marketplace Services\n      Terms and Conditions, a copy of which is attached hereto as Exhibit A, are\n      hereby incorporated herein by reference in their entirety. In the event of\n      any conflict between this Agreement and such Standard Marketplace Services\n      Terms and Conditions, the terms of this Agreement shall govern. All\n      capitalized terms used herein and not defined shall have the meaning\n      ascribed to such terms in such Standard Marketplace Services Terms and\n      Conditions.\n\n\n                                      -3-\n\n\n      IN WITNESS WHEREOF, each party hereto has caused this Agreement to be\nexecuted by a duly authorized representative thereof, effective as of the date\nfirst written above.\n\nPurchasePro.com, Inc.                           America Online, Inc.\n\nBy                                              By\n\nIts                                             Its\n\nPurchasePro.com, Inc.                           America Online, Inc.\n3291 North Buffalo Drive                        22000 AOL Way\nLas Vegas, Nevada  89129                        Dulles, Virginia  20166\nTelephone No. 702-316-7000                      Fax no. 703-265-1206\n\nWith a copy to:\n\nPurchasePro.com, Inc.\n3291 North Buffalo Drive\nLas Vegas, Nevada  89129\nTelephone No. 702-316-7000\nAttention:  General Counsel\n\n\n                                      -4-\n\n\nEXHIBIT A\n\nPurchasePro.com\n\nMarketplace Services Standard Terms and Conditions\n\n1. CONFIDENTIALITY. AOL agrees that the Marketplace Services described in the\nagreement to which these Standard Terms and Conditions are attached\n(\"Agreement\"), and the Marketplace Software Product with respect to which the\nMarketplace Services are being provided, are based upon proprietary information\nwhich is the exclusive property of and owned by PurchasePro and are treated as\nconfidential (\"Confidential Information\"). AOL shall, and shall cause its\nemployees and agents to, strictly maintain the confidentiality of the\nConfidential Information and not disclose, disseminate or otherwise give\nConfidential Information to any other person, firm, organization or third party,\nexcept for an employee or agent of AOL who has a reasonable need to obtain\naccess thereto in connection with the establishment and operation of AOL's\nMarketplace and who has agreed in writing to not disclose, and not to use for\nany other purpose, the Confidential Information. Notwithstanding the foregoing,\nthe obligations of confidentiality set forth in this Section 1 with respect to\nConfidential Information shall not apply to any information that: (i) is or\nbecomes publicly known without violation by AOL of the Agreement; (ii) is\nalready known to AOL without restrictions at the time of its disclosure by\nPurchasePro, as evidenced by the written records of AOL; (iii) after its\ndisclosure to AOL by PurchasePro, is made known to AOL without restrictions by a\nthird party having the right to do so; or (iv) is legally required to be\ndisclosed by AOL pursuant to a judicial order from a court of competent\njurisdiction (provided that AOL promptly informs PurchasePro of the requirement\nand affords PurchasePro a reasonable opportunity to contest the required\ndisclosure). AOL's obligations under this Section 1 shall survive expiration or\ntermination of the Agreement for any reason.\n\n2. LIMITED WARRANTIES, INDEMNITY AND DISCLAIMER. PurchasePro warrants and\nrepresents that it has full title and ownership of intellectual property\ndelivered in conjunction with the Marketplace Services and has the full power\nand authority to perform its obligations under the Agreement. PurchasePro will\ndefend AOL from and against any claim or action brought against AOL alleging\nthat its performance of the Marketplace Services infringe any valid U.S. patent,\ncopyright, trade secret or proprietary right of a third party, provided that AOL\n(a) promptly gives written notice to PurchasePro of any such claim or action,\n(b) gives PurchasePro the right to control and fully cooperates with PurchasePro\nin the defense of such claim or action, (c) has not made or caused to be made\nany modifications to the Marketplace Services, and (d) has not used the\nMarketplace Services other than as specified in the Agreement or in any\ndocumentation delivered in connection with the Marketplace Software Product, and\nPurchasePro will pay any final award of damages against AOL resulting from such\nclaim or action, including any attorneys fees and costs awarded, or any\nsettlement amount agreed to by PurchasePro. AOL's sole and exclusive remedy for\nany breach of warranty shall be commercially reasonable efforts to correct the\nnon-conformity or, if incapable of being corrected, termination of the Agreement\nand refund of any consideration paid by AOL pursuant to the Agreement. EXCEPT AS\nEXPRESSLY PROVIDED HEREIN, THE MARKETPLACE SERVICES ARE PROVIDED TO AOL \"AS IS\",\nPURCHASEPRO MAKES NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, REGARDING THIS\nAGREEMENT OR THE MARKETPLACE SERVICES AND, TO THE MAXIMUM EXTENT PERMITTED BY\nLAW, SPECIFICALLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A\nPARTICULAR PURPOSE OR AGAINST INFRINGEMENT, AND THE FOREGOING STATES\nPURCHASEPRO'S ENTIRE LIABILITY AND AOL'S SOLE AND EXCLUSIVE REMEDY FOR ANY\nBREACH OF WARRANTY.\n\n3. ASSIGNABILITY. AOL may not assign the Agreement, whether by operation of law\nor otherwise, without the prior written consent of PurchasePro, not to be\nunreasonably withheld. For purposes of the foregoing, any conveyance or other\ntransfer of any capital securities of AOL, or any other transaction whatsoever,\nthe effect of which is to confer upon the recipient or recipients thereof the\nability to determine a majority of members of AOL's board of directors or\notherwise control the affairs of AOL shall be deemed an assignment hereunder.\n\n4. OWNERSHIP OF INTELLECTUAL PROPERTY. AOL understands and agrees that\nPurchasePro owns and retains all right, title and interest in any services,\nsoftware products, intellectual property rights, source code, documentation, any\nfuture modifications and all related materials that may be provided under the\nterms of the Agreement.\n\n5. OWNERSHIP AND USE OF DATA. Information obtained from AOL Users (as defined in\nthat certain Interactive Marketing Agreement, dated as of March 15, 2000,\nreferred to herein as the \"IMA\") shall be deemed User Information under section\n13 of Exhibit F of the IMA and shall be governed by such Section.\n\n6. TERMINATION UPON DEFAULT. If either party shall violate or breach any\nmaterial term, condition or covenant contained herein and shall not remedy such\nviolation or breach within thirty (30) days after receipt of written notice\nthereof from the other party, the party not in violation or breach may terminate\nthis Agreement, effective immediately upon written notice to the party in\nviolation or breach.\n\n7. EFFECT OF EXPIRATION OR TERMINATION. The following Sections shall survive any\nexpiration or termination of this Agreement: Sections 1, 2, 4, 5, 6, 7, 8, 10,\n11 and 13.\n\n8. RESOLUTION OF DISPUTES. Disputes arising under this Agreement shall be\nresolved in accordance with the dispute resolution procedures set forth in\nSection 8 of the IMA.\n\n9. FORCE MAJEURE. Each party to the Agreement shall be excused from any delay or\nfailure in its performance thereunder, other than for payment of money, caused\nby any disruption or slow speed of the Internet, break-downs of security or\nintroduction of computer viruses (and the like) by third parties, any labor\ndispute, government requirement, act of God, or any other cause beyond its\ncontrol. Such party shall use best efforts to cure any such failure or delay in\nperformance arising from a force majeure condition, and shall timely advise the\nother party of such efforts. If such delay continues for more than ten (10)\ndays, the party injured by the inability of the other to perform may upon ten\n(10) days prior written notice terminate the Agreement.\n\n10. LIMITATIONS ON LIABILITY. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY\nFOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY\nKIND OR AMOUNT, REGARDLESS OF LEGAL THEORY (INCLUDING TORT, BREACH OF CONTRACT\nOR STRICT LIABILITY) ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT. THE\nMAXIMUM LIABILITY OF PURCHASEPRO TO AOL HEREUNDER SHALL NOT EXCEED, IN THE\nAGGREGATE AND IN ANY CIRCUMSTANCES, THE TOTAL CONSIDERATION PAID TO PURCHASEPRO\nBY AOL PURSUANT TO THE AGREEMENT.\n\n11. DEFINITIONS. To the extent any capitalized term is used but not defined in\nthe Agreement, such term shall have the meaning ascribed to it below:\n\n      A.    Global Marketplace. PurchasePro is the owner of a computer based\n            network, the Global Marketplace.\n      B.    Supplier. An entity that offers a product or service for sale.\n            Suppliers create and maintain their on-line company profiles,\n            product listing, pricing, web sites and electronic catalogs on the\n            Global Marketplace.\n      C.    AOL's Marketplace. The marketplace established for AOL pursuant to\n            and by means of the Marketplace Software Product developed by\n            PurchasePro.\n      D.    Marketplace Software Product. PurchasePro's proprietary computer\n            program, utilities, and accompanying user documentation (which in no\n            event includes any source code) for creation and operation of a\n            web-based application through which multiple prospective\n            buyers\/suppliers of products and\/or services who have been\n            registered into such marketplace have access to other\n            buyers\/suppliers for the purpose of transacting purchases and\/or\n            sales of products and\/or services within such marketplace.\n\n\n                                      -5-\n\n\n      E.    Effective Date. The date the Agreement is signed by PurchasePro as\n            set forth below its signature in the Agreement.\n      F.    Marketplace Services. The services provided by PurchasePro for the\n            AOL's Marketplace Software Product as set forth under the terms of\n            the Agreement.\n      G.    Net Revenue. Any one-time or recurring revenue of PurchasePro\n            generated by e-commerce marketplace fees including but not limited\n            to subscription fees, license fees, transaction fees, advertising,\n            classified, bid and auction fees that relate to the PurchasePro\n            Global Marketplace and originate from AOL's Members, AOL's Internet\n            sites or other AOL marketing activities (excluding subscription\n            fees), excluding any and all payments by AOL to PurchasePro under\n            the Agreement or any other agreement or arrangement, and minus any\n            and all sales or other commissions and royalties, sales or use taxes\n            (and similar taxes, such as VAT) and credits that are payable with\n            respect to such one-time or recurring revenue.\n      H.    AOL User. An individual user ID\/password in order to buy and\/or sell\n            on behalf of AOL.\n      I.    AOL Administrative User. A AOL User authorized by AOL to administer\n            AOL's Marketplace.\n      J.    Member. An entity authorized to access and use AOL's Marketplace by\n            having properly enrolled with PurchasePro.\n      K.    Member User. An individual user ID\/password in order to buy and\/or\n            sell on behalf of Member.\n      L.    Member Administrative User. A Member User authorized by Member to\n            administer Member's participation in AOL's Marketplace.\n      M.    External Marketplace Member. A Member of the Global Marketplace but\n            not a Member of AOL's Marketplace.\n      N.    External Marketplace Member User. An individual user ID\/password in\n            order to buy and\/or sell on behalf of External Marketplace Member.\n      O.    External Marketplace Member Administrative User. An External\n            Marketplace Member User authorized by External Marketplace Member to\n            administer External Marketplace Member's participation in Global\n            Marketplace.\n\n12. PUBLIC STATEMENTS. Neither party will issue any press release, excluding\nstatements that are mandated by state and federal securities laws, regarding the\nterms and conditions of the Agreement and\/or the details of the relationship\nbetween the parties contemplated hereby without the prior written approval of\nthe other party (which will not be unreasonably conditioned, withheld, or\ndelayed).\n\n13. GENERAL. The relationship of the parties under the Agreement is that of\nindependent contractors, and neither party's personnel shall be considered\nemployees or agents of the other party to the Agreement. If any term, clause or\nprovision of the Agreement is at any time judged to be invalid for any reason,\nsuch invalidity shall not affect the validity or operation of any other term,\nclause or provision and such invalid term, clause or provision shall be\nconsidered to have been deleted from the Agreement. No party to the Agreement\nshall be deemed to have waived any rights under, or as the result of any default\nunder or breach of, the Agreement unless the waiver is set forth in a writing\nsigned by the party. Any waiver of any default or breach of the Agreement shall\nnot be construed to constitute a waiver of any other default or breach whether\nsimilar or not. The Agreement shall be governed by and construed in accordance\nwith the laws of the State of New York (without regard to conflicts of laws\nprinciples). The Agreement and any attached Exhibits, including these Standard\nTerms and Conditions, contain the entire agreement of the parties and supercede\nany and all prior representations or agreements, whether oral or written,\nrelating to the subject matter of the Agreement. The Agreement may be amended or\nmodified only by a writing signed by an authorized representative of each party.\n\n14. NOTICES. All notices and other communications under the Agreement shall\nbegoverned by the terms of Section 16 of Exhibit F of the IMA.\n\n15. U.S. DOLLARS. All payments hereunder by either party shall be made in U.S.\ndollars.\n\n16. MEMBERSHIP AND EXPORT RESTRICTIONS. AOL shall comply with all applicable\nlaws, rules and regulations, including without limitation the United States\nForeign Corrupt Practices Act and all applicable United States export control\nlaws and regulations, in connection with its performance of this Agreement and\nthe establishment and operation of AOL's Marketplace. Without limiting the\npreceding sentence, AOL shall not permit any residents of any countries to which\nthe export or import of commodities and technical data is prohibited by the\nExport Administration Regulations of the U. S. Department of Commerce, the\ninternational Traffic In Arms Regulations of the U. S. Department of State or\nthe Enhanced Proliferation Control Initiative (collectively, \"U.S. Export\nControls\") to become members or to conduct any transactions on AOL's\nMarketplace, and AOL shall not export or re-export or permit the export or\nre-export of the Marketplace Software Product in violation of any U.S. Export\nControl.\n\n                                      -6-\n\n\n                                    EXHIBIT B\n\n               Description of Premium Global Marketplace Services\n\nSUPPLIERS o  Profile in Marketplace - allows suppliers to be sourced\n\n          o  PSM \"lite\" (Product Service Manager) - unlimited number of products\n             uploaded one at a time\n\n          o  Three tiered quantity pricing (first tier is list price)\n\n          o  Ability to enter Sale price (enters into classifieds)\n\n          o  Ability to enter products into auctions\/classifieds\n\n          o  Full CMU (includes pricing engine)\n\n          o  Ability to create contract and private catalogs\n\n          o  Ability to participate in private networks, if invited\n\nBUYERS    o  All purchasing functions\n\n          o  Quotes and\/or Purchase Orders can be sent to an unlimited number of\n             Internal Users with registration of each user\n\n          o  General Reporting\n\n          o  The \"lite\" administration utility - ability to set spending limits\n             and workflow based on members' business rules\n\n          o  Advanced Reporting (based on AU)\n\nAll fees for such services are waived for such recipients of such Premium\nSubscriptions during the term of this Agreement. Thereafter, recipients electing\nto continue their Premium Subscriptions shall be charged at PurchasePro's\nstandard rates.\n\n\n                                      -7-\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6655],"corporate_contracts_industries":[9510],"corporate_contracts_types":[9613,9619],"class_list":["post-42110","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-america-online-inc","corporate_contracts_industries-technology__programming","corporate_contracts_types-operations","corporate_contracts_types-operations__sales"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42110","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42110"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42110"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42110"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42110"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}