{"id":42141,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/co-marketing-agreement-cyberian-outpost-inc-and-starmedia.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"co-marketing-agreement-cyberian-outpost-inc-and-starmedia","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/co-marketing-agreement-cyberian-outpost-inc-and-starmedia.html","title":{"rendered":"Co-Marketing Agreement &#8211; Cyberian Outpost Inc. and StarMedia Network Inc."},"content":{"rendered":"<pre>\n     CO-MARKETING AGREEMENT ('Agreement'), dated as of July 16,1998, between\nCyberian Outpost, Inc ('Cyberian Outpost'), a Delaware corporation, having its\nprincipal offices at 27 North Main Street, Kent, Connecticut 06757, and\nStarMedia Network, Inc. ('StarMedia'), a Delaware corporation, having its\nprincipal offices at 29 West 36th Street, New York, NY  10018.\n\n                                  WITNESSETH\n\n     WHEREAS, Cyberian Outpost owns and operates the Cyberian Outpost Website\n(as defined in Section 1), through which it sells personal computers and related\nhardware, software and peripherals; and\n\n     WHEREAS, StarMedia owns and operates the StarMedia Website (as defined in\nSection 1); and\n\n     WHEREAS, Cyberian Outpost desires to market and promote the Cyberian\nOutpost Website through advertising on the StarMedia Website and a direct link\nfrom the StarMedia Website to the Cyberian Outpost Website; and\n\n     WHEREAS, StarMedia desires to market and promote the Cyberian Outpost\nWebsite through advertising on the StarMedia Website and a direct link from the\nStarMedia Website to the Cyberian Outpost Website.\n\n     NOW, THEREFORE, in consideration of the mutual covenants and conditions\nherein contained, the parties hereto do hereby agree as follows:\n\n1.   DEFINITIONS\n\nFor purposes of this Agreement, the following terms shall have the indicated\nmeanings:\n\n     'Activation Date' shall mean the earlier of(i) date on which Cyberian\n      ---------------                                                     \nOutpost directs StarMedia to activate the Link and (ii) the date 60 days\nfollowing the Effective Date.\n \n     'Banners' shall mean run-of-network banner advertisements promoting the\n      -------                                                               \nCyberian Outpost Website, in which the Link is embedded.\n\n     'Buttons' shall mean buttons in which the Link is embedded.\n      -------                                                   \n\n     'Commissions' shall mean, with respect to any calendar quarter during the\n      -----------                                                             \nTerm, an amount equal to [XX] of Net StarMedia Customer Revenues.\n\n     'Cyberian Outpost Marks' shall mean the logos, tradenames, trademarks and\n      ----------------------                                                  \nservice marks listed on Annex I attached hereto.\n\n     'Cyberian Outpost Website' shall mean a presence on the World Wide Web\n      ------------------------                                             \ncontaining content in the Local Languages that is managed or administered by\nCyberian Outpost and\/or is hosted by Cyberian Outpost, including without\nlimitation, the InterNIC-assigned domain name http:\/\/www.outpost.com\/country\/spa\nand country\/por and any other address which directs or may direct users to the\nLocal Language sections of the Cyberian Outpost site.\n\n     'Default' shall mean, with respect to either party, (i) any material breach\n      -------                                                                   \nby such party of any obligation for the payment of money set forth herein, which\nbreach has not been cured within three (3) business days following receipt of\nnotice thereof, or (ii) any material breach by such party of any obligation set\nforth herein, other than as specified in clause (i) above, which breach has not\nbeen cured within twenty (20) business days following receipt of notice thereof.\n\n     'Effective Date' shall mean July 16, 1998.\n      --------------                           \n\n     'Guaranteed Impressions' shall mean, with respect to the Banners and the\n      ----------------------\nButtons, [XXXX] impressions per month, [XXX] of which shall be Banner\nimpressions.\n\n     'Link' shall mean a direct hypertext link from the StarMedia Website to the\n      ----                                                                      \nCyberian Outpost Website, which website will be viewed by users of the Link\nthrough StarMedia's frameset.\n\n     'Local Languages' shall mean the Spanish and Portuguese languages.\n      ---------------                                                  \n\n     'Net StarMedia Customer Revenues' shall mean, with respect to any calendar\n      -------------------------------                                          \nmonth, all revenues collected by Cyberian Outpost from StarMedia Customers\nduring such month, [XXXXXXXXXX].\n\n     'Newsletter' shall mean the English version of the quarterly newsletter\n      ----------                                                            \nauthored by Cyberian Outpost.\n\n     'Optional Termination Payment' shall mean an amount equal to [XXX] of the \n      ----------------------------                                          \nunpaid balance of the Sponsorship Fee as of the Termination Date following the\ntermination of this Agreement pursuant to Section 5.2.\n \n     'Quarterly Commission Report' shall mean, with respect to any calendar\n      ---------------------------                                          \nquarter, a detailed description of the revenues received by Cyberian Outpost\nfrom StarMedia Customers during such quarter and a calculation of the\nCommissions relating to such revenues.\n\n     'Sponsorship Fee' shall mean [XXXX].\n      ---------------                         \n\n     'StarMedia Customers' shall mean all users who purchase any products or\n      ---------                                                             \nservices from Cyberian Outpost [XXXXXX].\n\n     'StarMedia Marks' shall mean StarMedia's logos, tradenames, trademarks and\n      ---------------                                                          \nservice marks, including, without limitation, StarMedia.\n\n     'StarMedia Website' shall mean the collection of limit documents accessible\n      -----------------                                                         \nby the public via the Internet at the URL http:\/\/www.starmedia.com.\n\n     'Term' shall mean the term of this Agreement, which shall commence on the\n      ----                                                                    \nEffective Date and end on the Termination Date.\n\n     'Termination Date' shall mean the earlier to occur of (i) the first\n      ----------------                                                  \nanniversary of the Activation Date, and  (ii) the date of any termination of\nthis Agreement pursuant to Section 5.1 or 5.2.\n\n     'Usage Report' shall mean a report prepared by Cyberian Outpost that\n      ------------                                                       \nspecifies the country of origin, chosen language, and other available\ndemographic information relating to, and the goods purchased by, each of the\nStarMedia Customers.\n\n2.   CO-MARKETING OBLIGATIONS\n     ------------------------\n\n     2.1.   The Link.  Commencing on the Activation Date, StarMedia will\n            --------                                                    \nestablish and maintain the Link. Cyberian Outpost will provide StarMedia with\nthe Universal Resource Locators necessary to establish the Link.\n\n     2.2    Marketing.  Cyberian Outpost shall deliver to StarMedia appropriate\n            ---------                                                          \nartwork and logos constituting the Cyberian Outpost Marks, from which StarMedia\nshall develop the Banners and the Buttons in such forms as StarMedia shall\nreasonably determine will maximize the number of StarMedia Customers. StarMedia\nshall, commencing on the Activation Date, place the Buttons in the following\nlocations within the StarMedia Website:\n\n           (a) on the homepage of the Digital Channel;\n\n           (b) within Informatica Hoy\/Hoje, (i) on the ZD Homepage, in either\n               the upper right corner or below the 'Mas Products' link, (ii) in\n               'Product Reviews' that reference a specific product, next to\n               those products offered by\n\n \n               Cyberian Outpost and (iii) in the 'Downloads' section, next to\n               product demos where the full product is offered by Cyberian\n               Outpost;\n\n          (c)  within the Star Classifieds Channel, on top of the Computers,\n               Electronics and Software category homepage and on top of the\n               search results page in such category;\n\n          (d)  in Pizarras\/Quadro de Avisos, in the header of the Technology\n               bulletin board;\n\n          (e)  in CopaMundial.com\/CopaDoMundo.com, on the games pages;\n\n          (f)  in StarMedia Shopping prominently placed in the shopping area;\n               and\n\n          (g)  for at least three (3) months from the Activation Date, in the\n               What's New? section of the StarMedia Website homepage.\n\nShould StarMedia change the layout of its Website in such a way that the Buttons\ncan not be placed as provided above, the Buttons will be guaranteed to be given\nessentially the same placement within the StarMedia site as described above.\nStarMedia shall provide to Cyberian Outpost not less than the Guaranteed\nImpressions. Within twenty (20) days following the end of each calendar quarter\nfollowing the Effective Date, StarMedia shall deliver to Cyberian Outpost a\nconfirmation of the number of impressions received by the Banners and the\nButtons dining such quarterly period. Within twenty (20) days following the end\nof (i) each of the first three months following the Effective Date, and (ii)\neach calendar quarter thereafter, Cyberian Outpost shall deliver to StarMedia a\nUsage Report covering such monthly or quarterly period, as the case may be.\n\n     2.3  Co-Marketing.  StarMedia shall employ traditional co-branded marketing\n          ------------                                                          \ninitiatives valued at not less than [XXX] of the Sponsorship Fees actually\nreceived from Cyberian Outpost during the Term.  This co-branded marketing will\nbe intended to introduce Cyberian Outpost to the Latin American marketplace as a\nbrand featured on the StarMedia site. Co-branded marketing initiatives may\ninclude TV, newspaper, magazine and radio based advertising.\n\n     2.4. Targeted Marketing.  StarMedia shall designate a point person to work\n          ------------------                                                   \nwith Cyberian Outpost personnel to provide the following services: (i) the\ntranslation into the Local Languages, [XXXXXX] of the Newsletter which Cyberian\nOutpost delivers to its customer base via electronic mail and (ii) using\ncommercially reasonable efforts to measure the effectiveness of marketing\nstrategies employed pursuant to Sections 2.2 and 2.3. StarMedia may, in its sole\ndiscretion, arrange for the translation into the Local Languages of product\nreviews and other material provided by Cyberian Outpost, provided that if\nStarMedia does elect to arrange for such translations, Cyberian Outpost agrees\nthat such translations shall be available only to users of the StarMedia\nWebsite, and shall not be used or seen by users of the Cyberian Outpost Website\nwhich have not utilized the Link.\n \n     2.5.  Trademarks. Cyberian Outpost hereby grants to StarMedia a non-\n           ----------                                                   \nexclusive non-transferable license to use the Cyberian Outpost Marks during the\nTerm solely in conjunction with the design, creation and display of the Banners\nand Buttons as provided herein; provided, however, that StarMedia shall submit\n                                          -------                             \nto Cyberian Outpost for its prior written approval the design of the Banners and\nButtons, which approval shall not be unreasonably withheld or delayed. StarMedia\nacknowledges and agrees that (i) the Cyberian Outpost Marks will remain the\nexclusive property of Cyberian Outpost, (ii) nothing in this Agreement shall\nconfer upon StarMedia any right of ownership in the Cyberian Outpost Marks, and\n(iii) it shall not now or in the future contest the validity of the Cyberian\nOutpost Marks. Cyberian Outpost acknowledges and agrees that: (x) the StarMedia\nMarks are and shall remain the sole property of StarMedia (y) nothing in this\nAgreement shall confer upon Cyberian Outpost any right of ownership in the\nStarMedia Marks, and (z) it shall not now or in the future contest the validity\nof the StarMedia Marks. StarMedia does not hereby grant a license or authorize\nin any way whatsoever Cyberian Outpost to use StarMedia Marks, and any proposed\nuse of StarMedia Marks must be approved in writing by StarMedia prior to such\nuse.\n\n     2.6.  Exclusivity. StarMedia agrees that during the Term it shall not\n           -----------                                                    \nestablish a direct link from the StarMedia Website to the website of any broad-\nbased reseller of new personal computers, related hardware, software and\nperipherals listed on Annex II, provided, however, that in the event that\nCyberian Outpost does not have a competitive auction offering in the Local\nLanguages in development and being beta tested prior to October 1, 1998 and a\ncomplete and fully functioning version of a competitive auction offering\navailable in the Local Languages prior to December 1, 1998, StarMedia may\nestablish a direct link to the website of any auction format reseller of new\npersonal computers, related hardware, software and peripherals.\n\n     2.7   Public Relations. Each party agrees to cooperate, when possible, for\n           ----------------                                                    \nall public relations events relating to the activation of the Link and the\nplacement of the Banners and Buttons.\n\n     2.8   Confidentiality.  StarMedia and Cyberian Outpost agree that all\n           ---------------                                                \ninformation (whether in writing, orally or in any other format) disclosed by\neach of them to the other during the negotiation of this Agreement or to be\ndisclosed during the term of this Agreement, including but not limited to, all\nof the information disclosed pursuant to Section 2.2 as well as business plans,\nproduct ideas, marketing concepts, financial information and projections, shall\nconstitute 'Confidential Information'; provided, however, Confidential\n                                       --------  -------              \nInformation does not include Quarterly Commission Reports, information that is\nor becomes publicly known through no wrongful act of either party (or any of its\nemployees), has been approved for release by written authorization of the\noriginating party, or has been disclosed pursuant to a requirement of a\ngovernment agency or of law. During the Term and at all times thereafter, the\nparty to whom Confidential Information has been imparted shall maintain such\ninformation as confidential and shall not disclose or permit the same to be\ndisclosed to any person or entity. Each party shall use its best efforts to take\nall reasonable steps to minimize the risks of disclosure of Confidential\nInformation.  Each of the parties further agree that the unauthorized disclosure\nby it of Confidential Information received from the other will cause irreparable\nharm and significant injury to the other which may be difficult to ascertain.\nAccordingly, each party agrees that the \n \nother shall be entitled to equitable relief, including, without limitation, an\nimmediate injunction enjoining any breach by it of this Section 2.8, in addition\nto all other remedies available to such party at law or in equity.  The parties\nagree that this Section 2.8 shall survive the termination or expiration of this\nAgreement.\n\n3.  FEES AND COMMISSIONS\n    --------------------\n\n    3.1.   Sponsorship Fee.  Cyberian Outpost shall pay to StarMedia the\n           ---------------                                              \nSponsorship Fee as follows: (i) [XXXXXXXX] payable on the Effective Date, and\n(ii) the remainder payable in 11 equal monthly installments of [XXXXXXXX] on the\nfirst business day of each calendar month thereafter. Notwithstanding anything\nto the contrary contained herein, the Sponsorship Fee shall be payable to\nStarMedia regardless of the termination of this Agreement, the parties agreeing\nthat this Section 3.1 shall survive the termination of this Agreement for any\ncause, other than as a result of a Default by StarMedia or pursuant to Section\n5.2.  Upon any termination of this Agreement as a result of a Default by\nStarMedia, any remaining monthly installments shall not be paid to StarMedia by\nCyberian Outpost; provided, however, StarMedia stall retain or be paid the\n                  --------  -------                                       \nSponsorship Fee previously received by, or owing to, StarMedia prior to the\nTermination Date.\n\n    3.2.   Commissions  Cyberian Outpost shall pay to StarMedia the Commissions\n           -----------                                                         \nowing for each calendar quarter, payable within 30 days of the last day of such\nquarter provided, however, that the Commissions payable may be offset by an\n        --------  -------                                                  \namount equal to the installment of the Sponsorship Fee actually paid to\nStarMedia in each quarter. Within thirty (30) days following the end of each\ncalendar quarter; Cyberian Outpost shall deliver to StarMedia a Quarterly\nCommission Report with respect to such quarter, in the event of any refunds by\nCyberian Outpost to StarMedia Customers, for returned products or otherwise, of\namounts with respect to which Commissions have already been paid to StarMedia,\nthe amount of such Commissions shall be deducted from the next quarterly payment\nof Commissions, or if no such payment is owing by Cyberian Outpost for the\nfollowing quarter, Cyberian Outpost may render a statement to StarMedia for such\namounts, which amounts shall be due and payable by StarMedia within thirty (30)\ndays following receipt of such statement. The parties agree that this Section\n3.2 shall survive the termination of this Agreement with respect to any\nCommissions accrued (including any revenues billed to StarMedia Customers but\nnot yet collected by Cyberian Outpost) and unpaid during the Term.\n\n4.  REPRESENTATIONS AND WARRANTIES\n    ------------------------------\n\n    4.1.   Representations and Warranties of StarMedia.  StarMedia represents\n           -------------------------------------------                       \nand warrants to Cyberian Outpost that (i) it has full power and authority, and\nhas taken all action necessary, to execute and deliver this Agreement and to\nfulfill its obligations hereunder, (ii) the making and performance by it of this\nAgreement does nor and will not violate any law or regulation applicable to it,\nits certificate of incorporation, bylaws or other organizational documents or\nany other agreement to which it is a party or by which it is bound, (iii) this\nAgreement has been duly \n \nexecuted and delivered by it and constitutes its legal, valid and binding\nobligations, enforceable against it in accordance with the respective terms\nhereof (except to the extent that the enforceability thereof may be limited by\nbankruptcy, insolvency or other similar laws of general applicability affecting\nenforcement of creditors' rights generally) or by a court's discretion in\nrelation to equitable remedies), and (iv) all approvals, authorizations or other\nactions by, or filings with, any governmental authority or other person or\nentity necessary for the validity or enforceability of its obligations under\nthis Agreement have been obtained.\n\n    4.2.  Representations and Warranties of Cyberian Outpost. Cyberian Outpost\n          --------------------------------------------------                  \nrepresents and warrants to StarMedia that (i) it has full power and authority,\nand has taken all action necessary, to execute and deliver this Agreement and to\nfulfill its obligations hereunder, (ii) the making and performance by it of this\nAgreement does not and will not violate any law or regulation applicable to it,\nits certificate of incorporation, by-laws or other organizational documents or\nany other agreement to which it is a party or by which it is bound, (iii) this\nAgreement has been duly executed and delivered by it and constitutes its legal,\nvalid and binding obligations, enforceable against it in accordance with the\nrespective terms hereof (except to the extent that the enforceability thereof\nmay be limited by bankruptcy, insolvency or other similar laws of general\napplicability affecting enforcement of creditors' rights generally, or by a\ncourt's discretion in relation to equitable remedies), and (iv) all approvals,\nauthorizations or other actions by, or filings with, any governmental authority\nor other person or entity necessary for the validity or enforceability of its\nobligations under this Agreement have been obtained.\n\n    4.3   Disclaimer.  EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER\n          ----------                                                           \nPARTY MAKES ANY, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS ANY,\nREPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING SUCH PARTY'S SITE\nOR WEB PAGES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A\nPARTICULAR. PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR\nCOURSE OF PERFORMANCE. SPECIFICALLY, EACH PARTY ACKNOWLEDGES AND UNDERSTANDS\nTHAT THE OTHER MAY ENCOUNTER TECHNICAL OR OTHER DIFFICULTIES WHICH MAY\nPERIODICALLY HINDER THE OPERATION OF THE LINK.\n\n5.  TERMINATION\n    -----------\n\n    5.1   Default.  Either party may immediately terminate this Agreement in the\n          -------                                                               \nevent of a Default by the other party, upon written notice to such party,\nwithout prejudice to any other rights it may have hereunder or at law.\n\n    5.2.  Optional Termination.  In the event that StarMedia receives 100 or\n          --------------------                                              \nmore unique complaints from users in any one month period regarding their\nexperience with Cyberian Outpost or the Cyberian Outpost Website, StarMedia\nshall notify Cyberian Outpost thereof within five business days following the\nend of any such month. In the event that either (i) StarMedia has received at\nleast 100 unique complaints per month for two consecutive months, regarding\ntheir \n \nexperience with Cyberian Outpost or the Cyberian Outpost Website, and StarMedia\nhas provided Cyberian Outpost with such notification as is required in the\npreceding sentence, or (ii) Cyberian Outpost ceases to be a broad-based reseller\nof new personal computers, related hardware, software and peripherals, StarMedia\nmay terminate this Agreement at any time, upon written notice to Cyberian\nOutpost. For purposes of this Section 5.2, a 'complaint' shall not include any\ncomplaint (i) regarding the fact that the product-specific pages within the\nCyberian Outpost Website are not in the Local Languages, or (ii) with regard to\nmatters as to which Cyberian Outpost has, prior to such complaint, conspicuously\nposted a notification in the Local Languages on the Cyberian Outpost Website;\nincluding, without limitation, the fact that certain products sold by Cyberian\nOutpost may not be shipped to certain countries and that users in certain\ncountries may experience difficulties in receiving delivery of international\nshipments. Notwithstanding anything to the contrary contained herein, upon any\ntermination of this Agreement pursuant to this Section 5.2, Cyberian Outpost\nshall pay to StarMedia the Optional Termination Payment within three (3) days\nfollowing the Termination Date.\n\n6.   INDEMNIFICATION\n     ---------------\n\n     6.1.  StarMedia Indemnification.  StarMedia shall indemnify, hold harmless\n           -------------------------                                           \nand defend Cyberian Outpost from and against any and all claims, liabilities,\nlosses, damages, expenses and costs (including, without limitation, legal fees\nand costs) arising out of or relating to (i) StarMedia's breach of any of its\nrepresentations and warranties set forth herein, (ii) StarMedia's breach of any\nof its obligations hereunder, (iii) the StarMedia Marks, or (iv) any negligence\nor intentional wrongdoing of StarMedia, or any employee or agent thereof.\n\n     6.2   Cyberian Outpost Indemnification.  Cyberian Outpost shall indemnify,\n           --------------------------------                                    \nhold harmless and defend StarMedia from and against any and all claims,\nliabilities, losses, damages, expenses and costs (including, without limitation,\nlegal fees and costs) arising out of or relating to (i) Cyberian Outpost's\nbreach of any of its representations and warranties set forth herein, (ii)\nCyberian Outpost's breach of any of its obligations hereunder, (iii) any of the\nproducts or services offered for sale on the Cyberian Outpost Website; (iv) the\nCyberian Outpost Website, (v) the Cyberian Outpost Marks, or (vi) any negligence\nor intentional wrongdoing of Cyberian Outpost, or any employee or agent thereof.\n\n7.   GENERAL\n     -------\n\n     7.1   Review Rights.  Cyberian Outpost shall retain complete, clear and\n           -------------                                                    \naccurate records regarding the products and services purchased by StarMedia\nCustomers. StarMedia shall have the right, upon not less than ten (10) days\nprior written notice to Cyberian Outpost and no more than twice during the Term,\nto cause an independent Certified Public Accountant to inspect and review,\nduring Cyberian Outpost's normal business hours, all relevant records of\nCyberian Outpost and any of its affiliates upon which the Quarterly Commission\nReports and Commissions are based. The cost of any such review shall be paid by\nStarMedia; provided, however, that if any such review shall reveal an\n           --------  -------                                         \nunderreporting in excess of five percent (5%) in \n \nmonies due to StarMedia from Cyberian Outpost, Cyberian Outpost shall promptly\npay to StarMedia (i) the cost of the review, (ii) the amount of any such\nunderpayment, and (iii) interest on the amount of any such underpayment equal to\n11.5% per month from the date originally owing to StarMedia. The parties agree\nthat the provisions of this Section 7.1 shall survive the Termination Date,\nprovided that StarMedia may not commence a review after the date 90 days\nfollowing the Termination Date.\n\n     7.2   Notices.  All notices and other communications between the parties\n           -------                                                           \nrequired or permitted hereunder shall be in writing and shall be deemed to have\nbeen duly given upon receipt off and delivery; certified or registered mail,\nreturn receipt requested; or telecopy transmission with confirmation of receipt;\naddressed as follows, or to such other address as may be hereafter notified by\nthe parties:\n\n     StarMedia:            StarMedia Network; Inc.\n                           29 West 36th Street\n                           New York, New York  10018\n                           Attention:  Steve Heller\n                                       Kevin Downey\n                           Telecopy:   (212) 631-9100\n\n     Cyberian Outpost:     Cyberian Outpost, Inc.\n                           27 North Main Street\n                           Kent, Connecticut  06757\n                           Attention:\n                           Telecopy:\n\n     7.3   No Waiver; Cumulative Remedies.  No failure or delay in the exercise,\n           ------------------------------                                       \nby either party, of any right, remedy, power or privilege hereunder shall\noperate as a waiver thereof; nor shall any single or partial exercise of any\nright, remedy, power or privilege hereunder preclude any other or further\nexercise thereof or the exercise of any other right, remedy, power or privilege.\nThe rights, remedies, powers and privileges herein provided are cumulative and\nnot exclusive of any rights, remedies, powers and privileges provided by law.\n\n     7.4.  Counterparts.  This Agreement may be executed simultaneously in\n           ------------                                                   \ncounterparts, each of which shall be deemed an original and all of which\ntogether shall constitute one and the same instrument. Transmission by telecopy\nof an executed counterpart of this Agreement shall be deemed to constitute due\nand sufficient delivery of such counterpart.\n\n     7.5.  Severability.  Any provision of this Agreement which is prohibited or\n           ------------                                                         \nunenforceable in any jurisdiction shall as to such jurisdiction, be ineffective\nto the extent of such prohibition or unenforceability without invalidating the\nremaining provisions hereof and any such prohibition or unenforceability in any\njurisdiction shall not invalidate or render unenforceable such provision in any\nother jurisdiction.\n \n     7.6.  Governing Law.  This Agreement shall be governed by and construed in\n           -------------                                                       \naccordance with the laws of the State of New York without reference to the\nconflict of law principles thereof.\n\n     7.7.  Jurisdiction.  Any judicial proceeding brought with respect to this\n           ------------                                                       \nAgreement must be brought in a court of competent jurisdiction in the State of\nNew York located in the County of New York or in the United States District\nCourt of the Southern District of New York, and, by execution and delivery of\nthis Agreement, each party (i) accepts, generally and unconditionally, the\nexclusive jurisdiction of such courts and any related appellate court, and\nirrevocably agrees to be bound by any judgment rendered thereby in connection\nwith this Agreement, (ii) irrevocably waives any objection it may now or\nhereafter have as to the venue of any such suit, action or proceeding brought in\nsuch a court or that such court is an inconvenient forum and (iii) agrees that\nservice of process in any such action or proceeding may be effected (A) by\nmailing a copy thereof by registered or certified mail (or any substantially\nsimilar form of mail), postage prepaid, to its address set forth in Section 7.2\nor (B) in any other manner permitted by law.\n\n     7.8.  Headings.  The section headings contained in this Agreement are for\n           --------                                                           \nreference purposes only and shall not affect in any way the meaning or\ninterpretation of this Agreement.\n\n     7.9.  Entire Agreement.  This Agreement, including the Annex hereto,\n           ----------------                                              \nembodies the entire agreement and understanding of the parties hereto with\nrespect to the subject matter contained herein and supersedes all prior\nagreements and understandings between the parties with respect to such subject\nmatter.\n\n     7.10. Amendments; Waivers; Binding Effect.  Any amendments to, or waivers\n           -----------------------------------                                \nof; this Agreement shall be in writing and signed by both parties or, in the\ncase of a waiver, by the party waiving compliance.  This Agreement shall be\nbinding upon and inure to the benefit of the parties hereto and their respective\nsuccessors and permitted assigns.\n\n     7.11. Assignment.  Neither party may assign this Agreement without the\n           ----------                                                      \nprior written consent of the other party, and any attempt by a party to assign\nthis Agreement without such consent shall be null and void; provided, however,\n                                                            --------  ------- \nthat either party shall be entitled to assign this Agreement without the other\nparty's prior written consent in connection with a merger of such party with or\ninto, or sale of all or substantially all of the assets of such party to, an\nentity that is not a direct competitor of the other party.\n\n     7.12  No Agency.  No agency, partnership, joint venture, or employment\n           ---------                                                       \nrelationship shall be created or inferred by the existence or performance of\nthis Agreement, and neither party shall have any authority to bind the other in\nany respect whatsoever.\n\n     7.13. Survival.  In addition to those provisions herein which expressly\n           --------                                                         \nsurvive the Termination Date, the fourth sentence of Section 12, the second\nsentence of Section 2.4, the second and third sentences of Section 2.5, and\nSections 6.1, 6.2, 7.2, 7.3, 7.5, 7.6, 7.7, 7.8, 7.9. 7.13, and 7.15 shall also\nsurvive the Termination Date.\n \n     7.14. Force Majeure.  Either party hereto shall be excused from any delay\n           -------------                                                      \nor failure in performance hereunder, except the payment of monies due and\npayable hereunder, caused by reason of any occurrence or contingency beyond its\nreasonable control, including, without limitation, acts of God, fires, floods,\nwars, civil disturbance, sabotage, accidents or labor disputes. The obligations\nand rights of the party so excused shall be extended on a day-to-day basis for\nthe period of time equal to that of the underlying cause of the delay.\n\n     7.15. Interpretation.  All terms set forth in this Agreement and not\n           --------------                                                \notherwise defined herein shall be construed to have meanings consistent with the\nInternet, World Wide Web and telecommunications industry.\n\n     7.16  Limitation of Liability.  IN NO EVENT SHALL EITHER PARTY BE LIABLE TO\n           -----------------------                                              \nTHE OTHER PARTY OR ANY OTHER PERSON OR ENTITY IN CONNECTION WITH THIS AGREEMENT\nFOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR RELIANCE DAMAGES (OR ANY LOSS OF\nREVENUE, PROFITS, OR DATA), HOWEVER CAUSED, WHETHER FOR BREACH OF CONTRACT,\nNEGLIGENCE OR UNDER ANY OTHER LEGAL THEORY, WHETHER FORESEEABLE OR NOT AND\nWHETHER OR NOT THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH\nDAMAGE, AND NOT WITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED\nREMEDY. BOTH PARTIES AGREE THAT THESE LIMITATIONS OF LIABILITY ARE AGREED\nALLOCATIONS OF RISK AND ARE REFLECTED IN THE FEES AGREED UPON BY THE PARTIES.\n\n     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of\nthe date set forth above.\n\n\nCYBERIAN OUTPOST, INC.                  STARMEDIA NETWORK, INC.\nBy: \/s\/ Louise R. Cooper                By: \/s\/ James Kern\n   ---------------------                   -----------------------------\nName: Louise R. Cooper                  Name: James Kern\nTitle: VP of Worldwide Marketing        Title: VP, Sales\n \n                                                                         ANNEX I\n                             CYBERIAN OUTPOST MARKS\n                             ----------------------\n\nBabbages\n\nBottom Line Distribution\n\nBuy Comp\n\nBuy Direct\n\nCDW\n\nChumbo\n\nCompUSA\n\nComputer City\n\nCreative Computers\n\nEgghead\n\nElectronics Boutique\n\nFrys\n\nGlobal Direct\n\nInsight\n\nInternet Shopping Network\n\nMicrocenter\n\nMicrowarehouse\n\nMultiple Zones\n\nNECX\n\nPCConnection\n\nPC\/Mac Mall\n \nSoftware.net\n\nSurplus Direct\n\nTiger Direct\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7254,8931],"corporate_contracts_industries":[9510,9497],"corporate_contracts_types":[9613,9619],"class_list":["post-42141","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-cyberian-outpost-inc","corporate_contracts_companies-starmedia-network-inc","corporate_contracts_industries-technology__programming","corporate_contracts_industries-retail__electronics","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\/42141","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=42141"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42141"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42141"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42141"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}