{"id":42452,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/license-agreement-auctionet-com-inc-and-purchasepro-com-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"license-agreement-auctionet-com-inc-and-purchasepro-com-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/license-agreement-auctionet-com-inc-and-purchasepro-com-inc.html","title":{"rendered":"License Agreement &#8211; AuctioNet.com Inc. and PurchasePro.com Inc."},"content":{"rendered":"<pre>                                LICENSE AGREEMENT\n\nThis License Agreement (the \"Agreement\") is made and entered into as of December\n29, 2000 (\"Effective Date\") by and between AuctioNet.com, Inc. (\"AuctioNet\"), a\nCalifornia corporation, having an office at 690 Industrial Road, San Carlos, CA\n94070 and PurchasePro.com, Inc., a Nevada corporation (\"PurchasePro\") having an\noffice at 3291 North Buffalo Drive, Las Vegas, NV 89129 (each a \"Party\" and\ntogether, the \"Parties\").\n\n                                   BACKGROUND\n\nA. AuctioNet has a certain technology which allows for the staging of online\nauctions for product purchases and sales transactions;\n\nB. PurchasePro is in the business of providing e-commerce solutions and software\nto its end-user members and customers as well as other licensees of PurchasePro\n(including without limitation original equipment manufacturers and other\napplication service providers who sublicense solutions and software to their\nend-user customers), which solutions and software allow such members and\ncustomers to connect, communicate and conduct transactions (\"Business\");\n\nC. PurchasePro desires to obtain a license from AuctioNet to use AuctioNet's\nonline auction technology on the terms and conditions set forth herein in\nconnection with its Business, and AuctioNet wishes to grant PurchasePro such\nlicenses according to the terms and conditions of this Agreement;\n\nNOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency\nof which is hereby acknowledged, the Parties hereby agree as follows:\n\n1.      Definitions.\n\nThe following terms shall have the following meanings:\n\n      1.1  \"AuctioNet Services\" means those services to be performed by\nAuctioNet as may be included within the Integration Plan (as defined in Section\n5.3) and such other services to be performed by AuctioNet as described in this\nAgreement.\n\n      1.2  \"Documentation\" means any on-line help files or written instruction\nmanuals which may be developed by AuctioNet from time to time regarding the use\nof the Software and any technical materials, documentation and guides which may\nbe developed by AuctioNet from time to time for use by AuctioNet's technology\npersonnel in connection with the development, operation and maintenance of the\nSoftware.\n\n      1.3  \"Integrated Software\" shall have the meaning assigned to it in\nSection 2.1.\n\n      1.4  \"Integrated Software Fee\" means, with respect to any PurchasePro\nSoftware containing Integrated Software, an amount equal to the difference\nbetween the standard license fee charged by PurchasePro for such PurchasePro\nSoftware with the Integrated Software minus the standard license fee charged by\nPurchasePro for such PurchasePro Software without the Integrated Software.\n\n      1.5  \"Maintenance and Support Services\" means those services listed on\nExhibit B, and the provision of Updates and Upgrades as called for by this\nAgreement.\n\n      1.6  \"Member\" means an entity or person that is permitted to access and\nuse the PurchasePro Services.\n\n\n                                      -1-\n\n\n      1.7  \"Member Information\" means information or data (including, without\nlimitation, registration, enrollment and profile data) provided by a Member\nthrough use of the Software or the Integrated Software or contained on any\nserver of AuctioNet (or any other means of storage or hosting of data within\nAuctioNet's control, including, without limitation, tapes and off-line mediums).\n\n      1.8  \"PurchasePro Customers\" shall mean third parties who have been or\nwill be authorized directly or indirectly by PurchasePro to access and use the\nSoftware (including, without limitation, in the form of Integrated Software) to\nfacilitate the purchase and\/or sale of products and services.\n\n      1.9  \"PurchasePro Services\" means the services and functionality offered\nby PurchasePro to PurchasePro Customers as part of its Business.\n\n      1.10 \"PurchasePro Software\" means PurchasePro proprietary systems,\napplications and database software which software underlies\/enables PurchasePro\nServices. PurchasePro Software is both hosted (served) by PurchasePro and\nlicensed by PurchasePro to its PurchasePro's customers for stand-alone use.\n\n      1.11 \"Sanitized Transaction Data\" means Transaction Data exclusive of, or\nafter removal of Member Information, and which exists: (i) in an anonymous form\nas part of an aggregation of multiple transactions conducted in whole or in part\nover or through use of a marketplace; (ii) in a \"blinded\" fashion, exclusive of,\nor after removal of, information which specifically identifies the Member; and\n(iii) in the form of statistical data, usage information, reports and analysis\nbased upon data specified in the foregoing items (i) and (ii).\n\n      1.12 \"Software\" means, collectively, the software program(s) set forth in\nExhibit A in object code and source code format, together with any Documentation\nprovided to PurchasePro by AuctioNet, and all Updates, Upgrades, new releases,\nmodifications, improvements, enhancements, alterations and changes thereof or\nthereto produced by AuctioNet or on AuctioNet's behalf related to online\nauctions for product purchases and sales transactions and provided to\nPurchasePro as part of the Maintenance and Support Services or otherwise\npursuant to this Agreement.\n\n      1.13 \"Supplied Data\" means catalog information, product information and\npricing data and Member business rules provided by a Member through use of the\nSoftware or Integrated Software or contained on any server of AuctioNet (or any\nother means of storage or hosting of data within AuctioNet's control including,\nwithout limitation, tapes and off-line mediums).\n\n      1.14 \"Territory\" means throughout the world.\n\n      1.15 \"Transaction Data\" means information and data characterizing,\ndescribing, relating to or comprising transactions (e.g., the sale and purchase\nof goods and services) to which a Member is a party and which are conducted in\nwhole or in part over or through use of the Software or Integrated Software or\ncontained on any server of AuctioNet (or any other means of storage or hosting\nof data within AuctioNet's control including, without limitation, tapes and\noff-line mediums). Transaction Data also includes, for any transaction to which\nMember is a party, information or data relating to the parties of such\ntransaction other than Member which is communicated or furnished by such parties\nto Member or otherwise obtained by Member in the course of such transaction.\n\n      1.16 \"Update(s)\" shall mean a set of procedures or new program code that\nAuctioNet implements to correct errors and which may include modifications to\nimprove performance or a revised version or release of the Software which may\nincidentally improve its functionality.\n\n\n                                      -2-\n\n\n      1.17 \"Upgrade(s)\" means (i) a new version or release of the Software which\nimproves the functionality of, or add functional capabilities to, the Software\nand (ii) any software program(s) intended to replace the Software.\n\n2.     Grant of Licenses.\n\n      2.1  Software License. Subject to the terms and conditions of this\nAgreement, AuctioNet hereby grants to PurchasePro a nonexclusive, perpetual,\nsublicensable license in the Territory: (i) to access, interface to, and\ninteract with, the Software (as remotely hosted by, or on the behalf of,\nAuctioNet) in connection with and as part of the provision of PurchasePro\nServices; (ii) to use the Software and Documentation internally in the Business;\n(iii) to use, copy and store one or more copies of the Software(and\nDocumentation) for the purpose exercising PurchasePro's rights with respect to\nthe Software(and Documentation) as set forth in the following items (iv) through\n(vii); (iv) to integrate into, bundle with, or package into PurchasePro Software\nthe Software (with such Software as integrated, bundled or packaged with the\nPurchasePro Software hereinafter being referred to as \"Integrated Software\");\n(v) make, have made, modify and prepare derivative works of theSoftware (and\/or\nDocumentation), and perform software engineering, for the purpose of developing,\ntesting, implementing, operating and maintaining Integrated Software (and the\ndocumentation therefor); (vi) to demonstrate, market, promote, advertise,\nsublicense (under terms no less protective of AuctioNet's intellectual property\nthan are the terms contained in PurchasePro's standard license agreements with\nrespect to the protection of PurchasePro's intellectual property; and without\nany right of further sub-license) and distribute the Software(including, without\nlimitation, as Integrated Software) in object code form in connection with and\nas part of the PurchasePro Services; or (vii) host, install, operate and\nmaintain (the foregoing internally and for others) the Software (including,\nwithout limitation, in the form of Integrated Software) in connection with and\nas part of the PurchasePro Services. PurchasePro shall not remove or destroy any\nproprietary markings, confidential legends or any trademarks, trade names or\nbrand names of AuctioNet or its licensors placed upon or contained within the\nSoftware, the Documentation or any related materials. PurchasePro shall\nreproduce all markings, legends and notices referred to herein on each copy of\nthe Software and Documentation made by or on behalf of PurchasePro as permitted\nby this Agreement.\n\n      2.2  Special Limitations Applicable to Source Code Components of the\nSoftware.\n\n            (a) Notwithstanding Section 2.1 above, PurchasePro shall not: (i)\n      use the Software, Integrated Software or any derivative works thereof for\n      purposes which do not include processing auction transactions; or (ii)\n      develop with the Software and Integrated Software any applications which\n      include less than a substantial amount of the auction services\n      functionality contained in the Software and Integrated Software.\n\n            (b) PurchasePro acknowledges that the source code components of the\n      Software constitute AuctioNet Confidential Information. PurchasePro shall\n      treat such source code components as AuctioNet Confidential Information\n      pursuant to Section 10 below and otherwise with at least the same degree\n      of care as it treats the source code to its own proprietary software, and\n      further agrees that access to such components shall be strictly limited to\n      employees of PurchasePro who have a need to access such components and who\n      have been advised of the confidential and proprietary nature of such\n      components, and consultants or contractors of PurchasePro who have a need\n      to access such components, have been advised of the confidential and\n      proprietary nature of such components, and have entered into a\n      non-disclosure agreement of a form as protective of such components as are\n      the confidentiality protections set forth in this Agreement which provides\n      that AuctioNet is an intended third party beneficiary of such agreement.\n      PurchasePro shall maintain records listing all such contractors and shall\n      provide AuctioNet with access thereto on the reasonable request of\n      AuctioNet. Notwithstanding\n\n\n                                      -3-\n\n\n      the foregoing, PurchasePro shall be permitted to disclose the source\n      components to AOL in performing its obligations pursuant to that certain\n      Technology Development Agreement by and between PurchasePro and AOL dated\n      March 15, 2000.\n\n            (c) PurchasePro shall, prior to implementing any updates,\n      additions, modifications or changes (\"Modifications\") to the Software,\n      provide AuctioNet with notice of its intent to do so in the form of a\n      reasonably acceptable statement of work (inclusive of project timelines)\n      for the performance of such Modification. AuctioNet shall have the right\n      to itself implement such Modification at its expense; provided that\n      AuctioNet must, within three (3) business days of receiving any such\n      statement of work from PurchasePro, provide PurchasePro with a\n      determination of whether AuctioNet desires to implement such\n      Modifications. Modifications implemented by AuctioNet shall be delivered\n      to PurchasePro as either an Update or Upgrade (whichever is more\n      applicable). In the event AuctioNet determines not to implement any such\n      Modification or loses the right to do so under the foregoing proviso,\n      PurchasePro may, at its option, itself implement such Modification. In the\n      event AuctioNet performs the implementation, such Modification shall be\n      subject to acceptance by PurchasePro and AuctioNet will work with\n      PurchasePro to resolve to PurchasePro's reasonable satisfaction any issues\n      or concerns PurchasePro has with such Modification; and such Modification\n      shall for all purposes be deemed to be, and otherwise treated in the same\n      manner as, either an Update or Upgrade (whichever is more applicable).\n\n            (d) AuctioNet shall have no obligations under this Agreement\n      (including, without limitation, as regards maintenance and support) for\n      Modifications to the Software developed and implemented by PurchasePro\n      (\"PurchasePro Modifications\"). PurchasePro Modifications (to the extent\n      exclusive of the Software) are owned by and shall remain the sole property\n      of PurchasePro.\n\n      2.3  Ownership. AuctioNet or its third party licensors hereby retain all\nright, title, and interest in and to the Software and the Documentation,\nincluding all copyrights, patents, trade secret rights, trademarks and other\nintellectual property rights therein. All rights in and to the foregoing not\nexpressly granted hereunder are reserved to AuctioNet or its licensors. The\nSoftware and Documentation and all copies thereof are licensed, not sold, to\nPurchasePro. Notwithstanding anything to the contrary contained herein, all\nchanges, modifications and enhancements or derivative works made to the\nSoftwareor Documentation by PurchasePro hereunder as permitted in this Section 2\nshall be owned by PurchasePro, including all copyrights, patents, trade secret\nrights or other intellectual property rights therein.\n\n3.     Delivery of Software.\n\nAuctioNet shall issue to PurchasePro, via CD-ROM, tape or such other media as\nreasonably requested by PurchasePro, as soon as practicable after the Effective\nDate, four (4) machine-readable copies of the Software (two (2) copies of the\nSoftware in source code format and two (2) copies in object code form). Upon\ncreation of any Documentation by AuctioNet, AuctioNet shall promptly deliver\nsuch documentation to PurchasePro.\n\n4.     Fees; Taxes; Revenue Allocation.\n\n      4.1  Fees. In consideration for (a) the licenses granted to PurchasePro\nunder Section 2 of this Agreement; (b) Maintenance and Support Services; (c)\nUpdates and Upgrades; (d) Integration Services (as defined in Section 5.2\nbelow); and (e) all other services as described in Section 5.4, PurchasePro\nshall pay AuctioNet the fees as specified in Exhibit C hereto (the \"Fees\").\nPayment terms of such Fees shall\n\n\n                                      -4-\n\n\nbe as set forth in Exhibit C hereto. Maintenance and Support Services shall\nterminate upon termination or expiration of this Agreement, unless the Parties\nagree otherwise.\n\n      4.2  Revenue Allocation.\n\n      (a) Within thirty (30) days after the end of each calendar quarter \nduring the term of this Agreement, AuctioNet shall pay PurchasePro a \ntransaction fee equal to fifty percent (50%) of all net revenue generated by \nAuctioNet from AuctioNet Services during such calendar quarter. For the \npurposes of this Section 4.2(a), \"net revenue\" shall mean all revenue or its \nequivalent obtained through the exploitation of the AuctioNet Services, less \nthe amount paid by AuctioNet to the seller of any goods sold in connection \ntherewith for such goods, less credit card processing and validation fees, \ntax, freight, and similar fees paid by AuctioNet to third parties, less any \namount paid by AuctioNet or PurchasePro to any person referring such buyer of \ngoods to AuctioNet (if any). By way of example only, without limiting the \nrights of either Party, the following describes the obligations of each party:\n\nProduct Sale Price                                               1,000.00\nSales Tax                                                           82.50\nFreight                                                             25.00\nTotal Transaction Amount                                         1,107.50\n                                                                \nLess: Sales Taxes &amp; Freight                                        107.50\n                                                                \nProduct Sale Price                                               1,000.00\nLess: Cost of Goods Sold                                           880.00\n                                                                \nGross Profit                                                       120.00\n                                                                \nLess: Credit Card Discount                                          30.46\n                                                                \nAdjusted Gross Profit                                               89.54\n                                                                \nLess: Auctionet\/PurchasePro Partner Revenue Share                   17.91\n                                                                \nNet Adjusted Gross Profit                                           71.64\n                                                                \nTransaction Revenue to be Split                                     \n50% Auctionet                                                       35.82\n50% Purchase Pro                                                    35.82\n                                                  \nThis example assumes a 20% partnership revenue share but exact percentage will\nvary depending upon partnership agreements.\n\n      (b) Within thirty (30) days after the end of each calendar quarter during\nthe term of this Agreement, PurchasePro shall pay AuctioNet fifty percent (50%)\nof all transaction fees PurchasePro generates from transactions by PurchasePro\nCustomers using the Software or Integrated Software but not the AuctioNet\nServices during such calendar quarter. For the purposes of this Section 4.2(b),\n\"transaction fees\" shall refer to the amount paid to PurchasePro in connection\nwith transactions, less credit card processing and validation fees, tax,\nfreight, and similar fees paid by PurchasePro to third parties.\n\n\n                                      -5-\n\n\n      (c) Within thirty (30) days after collection by PurchasePro from any\nPurchasePro customer, PurchasePro shall, for any PurchasePro Software containing\nIntegrated Software which PurchasePro Software was licensed during such quarter\nto such PurchasePro customer for installation and use by such customer on\ncomputer equipment owned and\/or controlled by such customer, pay over to\nAuctioNet out of the license fee received by PurchasePro for such customer for\nsuch Software, the greater of (a) twenty-five percent (25%) of the Integrated\nSoftware Fee applicable to such Software and (b) $15,000.00.\n\n      4.3  Taxes. All fees due hereunder to either Party (the \"Collecting\nParty\") are exclusive of all applicable taxes and duties assessed in connection\nwith this Agreement and the other Party's (the \"Paying Party\") performance\nhereunder by any authority, which shall be paid by the Paying Party or, if paid\nby the Collecting Party, promptly reimbursed. This provision does not apply to\nany taxes for which the Paying Party is exempt, provided the Paying Party has\nfurnished the Collecting Party with a valid tax exemption certificate, or to the\nCollecting Party's income or franchise taxes.\n\n      4.4  Audit Right. During the term of this Agreement and for a period of\none (1) year following the expiration or termination of this Agreement for any\nreason, each Party will maintain complete and accurate books of accounts,\nrecords and such other material necessary to calculate amounts due to the other\nParty under this Agreement. Each Party will permit the other Party, through a\nnationally recognized certified public accounting firm (\"CPA\") designated by\nsuch other Party (subject to execution of a reasonable non-disclosure agreement\nby said CPA), upon reasonable notice and during normal business hours, to\ninspect these books, records and other materials once per year during the term\nof this Agreement plus once up to twelve (12) months following the expiration or\ntermination of this Agreement. Each Party will provide full and complete\nassistance in such audit effort as the other Party may reasonably require. In\nthe event the audit reveals an underpayment in the payment obligations of the\nParty being audited by more than five percent (5%), the Party being audited will\npromptly pay the auditing Party such underpayment amount plus interest\ncalculated at the lesser of one and one-half percent (1 1\/2%) per month or the\nhighest rate permitted by law on the underpaid amount.\n\n5.     Maintenance and Support; Integration Services; Service Levels.\n\n      5.1  Maintenance and Support. Until two (2) years after the Effective\nDate, AuctioNet shall provide PurchasePro with Software support as described in\nExhibit B hereto, and maintenance in the form of Updates and Upgrades.\nPurchasePro shall be responsible for providing its PurchasePro Customers with\nlevel one support as defined in the schedule set forth in Exhibit B hereto\n(\"Level 1 Support\"). In the event PurchasePro is unable to answer or resolve any\ntechnical support questions or problems related solely to the use of the\nSoftware (as a stand-alone product or as part of the Integrated Software),\nPurchasePro may escalate the question or problem directly to AuctioNet for\nAuctioNet to resolve as described in the schedule set forth in Exhibit B hereto\n(\"Level 2 Support\"). Without limiting the generality of the foregoing, during\nsuch two (2) year term, AuctioNet shall maintain the Software as part of the\nIntegrated Software so that all of the functionality, performance and\ncapabilities of the Software as made generally available to AuctioNet's\ncustomers will be incorporated in the Software as part of the Integrated\nSoftware.\n\n      5.2   Service Levels. Until two (2) years after the Effective Date,\nAuctioNet shall be responsible for ensuring that at all times the Software and\nIntegrated Software is maintained, and the AuctioNet Services shall be\nperformed, at levels at least equal in all material respects to the service\nlevels set forth on Exhibit D hereto, except during the occurrence of a force\nmajeure event described in Section 13.7. AuctioNet shall establish and maintain\narrangements for emergency back-up services acceptable to PurchasePro. AuctioNet\nshall take all commercially reasonable measures to minimize the damage caused by\nany impairment resulting from any actual interruption or shutdown of any\nfacility that either (a) prevents AuctioNet from performing its obligations\nhereunder or (b) causes a substantive disruption of the\n\n\n                                      -6-\n\n\nuse by PurchasePro or any PurchasePro Customers of theAuctioNet Services,\nSoftware or Integrated Software, in each case for a period of at least five (5)\nbusiness days, and, in cooperation with PurchasePro and any third parties, to\navoid recurrence of such interruption or shutdown. AuctioNet shall organize,\nimplement, monitor and apply all commercially reasonable disaster protection\nmechanisms as required to minimize the damage caused by any such impairment. In\nthe event of any such impairment, AuctioNet shall work diligently and with all\ncommercially reasonable efforts to restore the ability of PurchasePro and all\nPurchasePro Customers to use theAuctioNet Services, Software and Integrated\nSoftware in accordance with AuctioNet's obligations under this Agreement.\n\n            5.3  Integration Services.\n\n            (a) AuctioNet shall integrate the Software into the PurchasePro\nSoftware (i.e., develop the Integrated Software) for use by PurchasePro by\ninterface between the PurchasePro Software and the AuctioNet Software on an\napplication service provider basis and by integration into the PurchasePro\nSoftware on an the original equipment manufacturer basis (the \"Integration\",\nwith the services, functions and responsibilities being performed by AuctioNet\nto successfully complete the Integration being hereinafter referred to as the\n\"Integration Services\"). AuctioNet shall dedicate that number of qualified\npersonnel and amount of resources necessary to perform and complete the\nIntegration Services.\n\n            (b) As soon as reasonably practicable after execution of this\nAgreement, AuctioNet shall commence in good faith: (i) a study to capture and\nrecord the business requirements PurchasePro is seeking to meet using the\nfunctionality and capabilities of the Software as set forth in a writing to be\ndelivered by PurchasePro (the \"Business Requirements\"); and (ii) an analysis to\nestablish the methods and processes necessary for completing the Integration so\nas to meet PurchasePro's business requirements (the \"Integration Analysis\").\nBased upon the Integration Analysis, AuctioNet shall, no later than February 14,\n2001, complete and deliver to PurchasePro for review a full draft of a proposed\nIntegration Plan (defined below). Without limiting the generality of the\nforegoing, the Integration Plan shall include such details as are necessary and\nappropriate to show how the Integration, when completed per the Integration\nPlan, will meet the Business Requirements. PurchasePro shall review the\nIntegration Plan and, within 15 days of its receipt thereof, request in writing\nany revisions it desires thereto. AuctioNet shall, within 15 days of receiving\nany such requests from PurchasePro, revise the Integration Plan in accordance\nwith all reasonable requests of PurchasePro and resubmit the Integration Plan to\nPurchasePro for approval. Within 15 days of receiving the re-submitted\nIntegration Plan, PurchasePro shall either finally approve such Integration Plan\nor return the Integration Plan to AuctioNet with instructions regarding\nnecessary further revision (in which case the re-submittal and review process\nshall be carried out again).\n\n            (c) The Integration will be accomplished pursuant to a plan\ndeveloped by AuctioNet and approved by PurchasePro (the \"Integration Plan\"). The\nIntegration Plan shall encompass all relevant terms, conditions and components\nfor the completion of the Integration. The Integration Plan shall include, among\nother things, a complete set of specifications for the Integrated Software and\nprovision of the AuctioNet Services, deliverables, milestones, time-lines for\ncompletion, acceptance criteria (for acceptance of the Integrated Software by\nPurchasePro), performance objectives and the specific responsibilities of each\nParty.\n\n            (d) AuctioNet and PurchasePro shall each perform the tasks required\nof it by the Integration Plan so that the Integration will be completed in\naccordance with the schedule set forth therein. AuctioNet and PurchasePro shall\nbe responsible for overall management of the Integration and shall use all\ncommercially reasonable efforts to keep the Integration on schedule and to\nidentify and resolve any problems encountered in the timely completion of each\ntask. AuctioNet shall provide\n\n\n                                      -7-\n\n\nPurchasePro with weekly progress reports which describe in reasonable detail the\ncurrent status of the Integration, indication of the progress of the work being\nperformed in comparison to the Integration Plan, identification of actual or\nanticipated problems, the impact of such problems on AuctioNet's work effort,\nand action being taken or alternative actions to be taken to remedy such\nproblems. In addition, AuctioNet shall track all tasks and sub-tasks on-line\nusing Microsoft Project and shall at all times provide PurchasePro with access\nthereto so as to enable PurchasePro to always be able to determine AuctioNet's\nprogress against the Integration Plan. AuctioNet agrees to use commercially\nreasonable efforts to effect a smooth transition without disruption to any of\nPurchasePro's business operations, except as contemplated by the Integration\nPlan.\n\n            (e) Other than as set forth in Exhibit C, PurchasePro shall not be\nobligated to make any additional payments to AuctioNet in connection with the\nIntegration (and including, without limitation, for the Software, the Integrated\nSoftware and the Integration Services) or otherwise, and each Party shall bear\nits own costs and expenses associated with the Integration.\n\n            (f) Any additional software developed by AuctioNet hereunder,\nexclusive of the Software or Integrated Software, will be included in the\ndefinition of \"Software\" for all intents and purposes of this Agreement.\n\n            (g) Upon the execution of this Agreement, AuctioNet will promptly\nassign an individual who will: (i) oversee and manage the performance of the\nIntegration Services (this includes the responsibility to see that all\nmilestones are met on-time and that all deliverables satisfy the requirements of\nthis Agreement); (ii) serve as PurchasePro's primary point of contact for\nmatters pertaining to the Integration; and (iii) have the authority to make\nbinding commitments on behalf of AuctioNet (the \"AuctioNet Engagement Manager\").\n\n            (h) Upon the execution of this Agreement, PurchasePro will promptly\nassign an individual who will serve as PurchasePro's primary point of contact\nwith AuctioNet for matters pertaining to the Integration (the \"PurchasePro\nEngagement Manager\"). The PurchasePro Engagement Manager will be responsible and\nauthorized to: (i) serve as AuctioNet's primary point of contact for matters\npertaining to the Integration; (ii) have the authority to make binding\ncommitments on behalf of PurchasePro; (iii) approve modifications to the\nIntegration Plan; and (iv) accommodate reasonable requests by the AuctioNet\nEngagement Manager for PurchasePro information, data and support of a type\nspecified in the Integration Plan or reasonably required by AuctioNet for its\nperformance of the Integration Services.\n\n            (i) The Integration shall be governed by an oversight committee\n(\"Oversight Committee\") composed of an equal number of people from each Party,\nincluding the AuctioNet Engagement Manager, the PurchasePro Engagement Manager,\nAuctioNet's Chief Technology Officer, and PurchasePro's Chief Technology Officer\nand such other persons as may be designated by such individuals. The Oversight\nCommittee shall have the power to resolve all disputes arising with respect to\nthe Integration by affirmative vote of its members. In the event the Oversight\nCommittee is unable to resolve any particular dispute within a reasonable time\nperiod, such dispute shall be submitted to one senior manager of each party for\nresolution by mutual agreement within ten (10) business days. Failing such\nresolution, such dispute shall be submitted to one executive officer of each\nparty for resolution by mutual agreement within thirty (30) calendar days.\nFailing resolution by the parties' executive officers, the dispute shall be\nsubmitted to arbitration in accordance with Section 13.3.\n\n            (j) PurchasePro acknowledges that AuctioNet may subcontract the\nperformance of the Integration Services to third parties on a partial basis. In\nsuch event, AuctioNet will remain fully responsible in all respects to\nPurchasePro for the performance of the Integration Services in accordance with\nthe terms of this Agreement, and will be deemed for the\n\n\n                                      -8-\n\n\npurposes of this Agreement to have performed the Integration Services itself.\nAuctioNet will not disclose PurchasePro Confidential Information to a\nsubcontractor unless and until such subcontractor has agreed in writing to\nprotect the confidentiality of such Confidential Information in a manner\nsubstantially equivalent to that required of AuctioNet under this Agreement.\n\n      5.4  Other Services. AuctioNet shall provide any other implementation and\nconsulting assistance not described herein to PurchasePro related to initial\ninstallation of the Software on terms mutually agreed by the Parties.\n\n      5.5  Representation and Warranty. AuctioNet hereby represents and\nwarrants to PurchasePro that any and all services performed on behalf of\nPurchasePro hereunder shall be performed in a professional, workmanlike manner\nand in accordance with the general standards in the industry.\n\n6.     Trademarks.\n\n      6.1  Right to Display. During the term of this Agreement, each Party\nauthorizes the other Party to display and use the other's trademarks, trade\nnames and logos (collectively, the \"Trademarks\") in connection with that Party's\nadvertisement and promotion of the PurchasePro Services and\/or AuctioNet\nServices or Integrated Software (or the functionality thereof). Each Party shall\nindicate in all product, service, publicity and printed materials relating to\nthe PurchasePro Services and\/or AuctioNet Services, Software and Integrated\nSoftware that such trademarks are the property of the originating Party. Upon\ntermination of this Agreement, each Party shall cease all display, advertising\nand use of all Trademarks of the other Party. During the term of this Agreement\nand thereafter, neither Party shall use, advertise or display any trademark,\ntrade name or logo which is, or any part of which is, confusingly similar to any\nTrademark of the other Party. Notwithstanding the foregoing, PurchasePro shall\ndiscontinue all use of AuctioNet Trademarks if the Integrated Software includes\nany PurchasePro Modification and AuctioNet objects to such use because in its\nreasonable discretion such Modification degrades the performance of the Software\nor the Integrated Software or the experience of a user of the AuctioNet Services\nas would constitute a material adverse effect with respect thereto, and further,\nsuch Modification has not been approved by AuctioNet.\n\n      6.2  Promotion Materials and Activities. All representations of the other\nParty's Trademarks that a Party intends to use shall be exact copies of those\nused by the other Party and shall first be submitted to the originating Party\nfor written approval of design, color and use, including use in conjunction with\nadvertisement, service and promotional materials, which consent shall not be\nunreasonably withheld or delayed. To ensure trademark quality, each Party shall\nfully comply with all written guidelines provided by the other Party concerning\nthe use of the originating Party's Trademarks. Each Party agrees to change or\ncorrect any material or activity that the originating Party determines to be\ninaccurate, objectionable, misleading or a misuse of the originating Party's\nTrademarks. Neither Party shall continue the use of, and shall withdraw and\nretract, any materials containing the Trademarks of the other Party which are in\nbreach of the terms of this Agreement or otherwise upon the reasonable written\nrequest of the other Party.\n\n      6.3  Goodwill and Trademarks. Each Party acknowledges that the other has\nand will have substantial goodwill in its Trademarks used in conjunction with\nthis Agreement, and agrees it shall not do anything that could injure, diminish\nor depreciate the value of the goodwill associated with the Trademarks or\nbusiness of the other. All goodwill associated with the use of each Party's\nTrademarks shall inure exclusively to the owner of such Trademarks.\n\n      6.4  Conduct of Business. Each Party shall conduct its business of\nmarketing each other's products and services pursuant to this Agreement in a\nmanner that will reflect favorably on the good name and reputation of the other\nParty. Each Party shall comply with all laws, regulations and ordinances in\n\n\n                                      -9-\n\n\ndealing with each other and with third parties, and in performing their\nrespective obligations under this Agreement. Each Party shall refrain from\nengaging in any unfair or deceptive trade practice or unethical business\npractice that could unfavorably reflect upon the other Party and its products or\nservices.\n\n7.     Warranties.\n\n      7.1  No Conflict. Each Party represents and warrants to the other Party\nthat it is under no current obligation or restriction, nor will it knowingly\nassume any such obligation or restriction that does or would in any way\ninterfere or conflict with, or that does or would present a conflict of interest\nconcerning the performance to be rendered hereunder or the rights and licenses\ngranted herein.\n\n      7.2  Intellectual Property Warranty. AuctioNet represents and warrants to\nPurchasePro that (a) AuctioNet is the sole owner of all rights, title, and\ninterest in and to the Software and Documentation; (b) AuctioNet has full and\nsufficient right, title and authority to grant the rights and\/or licenses\ngranted to PurchasePro under this Agreement; (c) the Software does not contain\nany materials developed by a third party used by AuctioNet except pursuant to a\nlicense agreement between AuctioNet and such third party; (d) PurchasePro shall\nhave all the right and license to use the Software and Documentation as provided\nherein without the need to acquire any additional rights or licenses from any\nthird party; and (e) neither the Software nor any Trademarks of AuctioNet\ninfringe any patent, copyright, trade secret, trademark or other intellectual\nproperty rights of a third party.\n\n      7.3  Product Warranty. AuctioNet warrants that the Integrated Software\nwill perform in accordance with the requirements set forth in the Integration\nPlan. If the Integrated Software does not perform in accordance with the\nIntegration Plan, AuctioNet shall, as its sole obligation, use its best efforts\nto correct the Software, or if correction of the Software is not possible,\nreplace such Software free of charge.\n\n      7.4  Virus Warranty. AuctioNet warrants to PurchasePro that it has tested\nthe Software to ensure that the Software does not contain any virus or other\nharmful code.\n\n      7.5  PurchasePro Warranties. PurchasePro represents and warrants to\nAuctioNet that (a) PurchasePro has full title and ownership of the PurchasePro\nSoftware; (b) it has full power and authority to grant the licenses granted to\nAuctioNet under this Agreement; (c) the Trademarks of PurchasePro licensed to\nAuctioNet hereunder do not infringe upon any third party copyright or trademark.\n\n8.     Indemnification.\n\n      8.1  AuctioNet Indemnification. AuctioNet shall indemnify, defend and\nhold harmless PurchasePro and each PurchasePro Customer from any and all suits,\nclaims, proceedings, damages, liabilities, judgments, costs and expenses\n(including reasonable attorneys' fees) incurred by PurchasePro or such\nPurchasePro Customer arising out of or in connection with claims that the\nSoftware or Integrated Software (excluding any PurchasePro Modification)\ninfringes any patent, copyright, trademark or trade right secret of a third\nparty, provided that PurchasePro (a) promptly gives written notice to AuctioNet\nof any such claim or action, and (b) gives AuctioNet the right to control and\nfully cooperates with AuctioNet in the defense of such claim or action,. If the\nSoftware or the Integrated Software is, or in the opinion of AuctioNet may\nbecome, the subject of any claim of infringement or if it is adjudicatively\ndetermined that the Software or the Integrated Software infringes the rights of\nany third party, then AuctioNet may, at its sole option and expense, either (a)\nprocure for PurchasePro the right from such third party to use the Software or\nthe Integrated Software, or (b) replace or modify the Software or Integrated\nSoftware with other suitable and substantially equivalent products so that the\nSoftware or Integrated Software, as applicable, becomes non-infringing. This\nSection 8 sets forth AuctioNet's sole liability with respect to any infringement\nof any intellectual property rights by the Software or the Integrated Software.\n\n\n                                      -10-\n\n\n      8.2  PurchasePro Indemnification. PurchasePro shall indemnify, defend and\nhold harmless AuctioNet from any and all suits, claims, proceedings, damages,\nliabilities, judgments, costs and expenses (including reasonable attorneys'\nfees) incurred by AuctioNet arising out of or in connection with claims that the\nPurchasePro Software or PurchasePro Modifications infringes any patent,\ncopyright, trademark or trade right secret of a third party, provided that\nAuctioNet (a) promptly gives written notice to PurchasePro of any such claim or\naction, and (b) gives PurchasePro the right to control and fully cooperates with\nPurchasePro in the defense of such claim or action. This Section 8 sets forth\nPurchasePro's sole liability with respect to any infringement of any\nintellectual property rights by the PurchasePro Software or the PurchasePro\nModifications.\n\n9.     Disclaimer of Warranties; Limitation of Liability.\n\n      (a) EXCEPT AS EXPRESSLY PROVIDED HEREIN, AUCTIONET MAKES NO WARRANTIES \nOF ANY KIND, EXPRESS OR IMPLIED, REGARDING THIS AGREEMENT, OR THE SOFTWARE, \nINTEGRATED SOFTWARE OR THE AUCTIONET SERVICES AND, TO THE MAXIMUM EXTENT \nPERMITTED BY LAW, SPECIFICALLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY OR \nFITNESS FOR A PARTICULAR PURPOSE OR AGAINST INFRINGEMENT.\n\n      (b) EXCEPT FOR AUCTIONET'S LIABILITY ARISING UNDER SECTION 8 ABOVE OR\nLIABILITY OF EITHER PARTY FOR BREACH OF SECTION 10, IN NO EVENT SHALL EITHER\nPARTY'S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE USE OR\nPERFORMANCE OF THE SOFTWARE OR THE INTEGRATED SOFTWARE EXCEED THE TOTAL AMOUNT\nACTUALLY PAID BY PURCHASEPRO HEREUNDER. EXCEPT FOR LIABILITY ARISING UNDER\nSECTIONS 8 AND 10 OF THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY HAVE ANY\nLIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR COSTS OF PROCUREMENT OF\nSUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR\nCONSEQUENTIAL DAMAGES HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY AND\nWHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.\nTHE PARTIES AGREE THAT THIS SECTION 9 REPRESENTS A REASONABLE ALLOCATION OF\nRISK.\n\n10.     Confidentiality.\n\n      10.1  Confidential Information. Each Party (the \"Receiving Party\")\nexpressly acknowledges that in negotiating and\/or performing under this\nAgreement the other Party (the \"Disclosing Party\") has disclosed or may disclose\ninformation relating to the Disclosing Party's business or technology which is\nconfidential or proprietary in nature and not intended to be disclosed to users\nof theAuctioNet Services, Software or Integrated Software (including, without\nlimitation, source code for the Software, trade secrets, patents, patent\napplications, copyrights, know-how, processes, ideas, inventions (whether\npatentable or not), formulas, other computer programs, databases, technical\ndrawings, designs, algorithms, technology, circuits, layouts, designs,\ninterfaces, materials, schematics, names and expertise of employees and\nconsultants, any other technical, business, financial, customer information,\nproduct development plans, supplier information, forecasts, strategies and other\nconfidential information), which to the extent previously, presently or\nsubsequently disclosed to the Receiving Party is hereinafter referred to as\n\"Confidential Information\" of the Disclosing Party.\n\n      10.2  Treatment of Confidential Information. The Receiving Party shall \n(a) hold the Disclosing Party's Confidential Information in confidence and \ntake all commercially reasonable precautions to protect such Confidential \nInformation (including, without limitation, all precautions the Receiving \nParty usually employs with respect to its own comparable confidential \nmaterials), (b) except as expressly provided herein, not disclose any such \nConfidential Information or any information derived therefrom to any third \nperson, (c) not make any use whatsoever at any time of such Confidential \nInformation except as necessary to exercise their rights and perform their \nobligations under this\n\n                                      -11-\n\n\nAgreement in strict accordance with the terms and conditions of this Agreement,\n(d) except as expressly set forth herein, not copy or reverse engineer, or\nattempt to derive the composition or underlying information, structure or ideas\nof any such Confidential Information.\n\n      10.3  Exclusions. The Disclosing Party agrees that Section 10.2 shall not\napply with respect to Confidential Information of the Disclosing Party that (a)\nis or becomes generally available to the public through no improper action or\ninaction by the Receiving Party or any of its affiliates, agents, consultants or\nemployees, (b) was properly in the Receiving Party's possession or known by it\nprior to receipt from the Disclosing Party, (c) was rightfully disclosed to the\nReceiving Party by a third party provided the Receiving Party complies with\nrestrictions imposed by the third party, or (d) was independently discovered or\nderived by the Receiving Party without use of Confidential Information of the\nDisclosing Party. Each Party, with prior written notice to the Disclosing Party,\nmay disclose such Confidential Information to the minimum extent possible that\nis required to be disclosed to a governmental entity or agency, or pursuant to\nthe lawful requirement or request of a governmental entity or agency, provided\nthat reasonable measures are taken to guard against further disclosure,\n(including without limitation, seeking appropriate confidential treatment or a\nprotective order, or assisting the other Party to do so) and has allowed the\nDisclosing Party to participate in any proceeding that requires the disclosure.\n\n11.     Ownership and Use of Data.\n\n      With respect to all Member Information,Supplied Data, Transaction Data \nand Sanitized Transaction Data, the Parties agree that:\n\n      11.1  Each Member shall own its own Member Information and Supplied Data;\n\n      11.2  Each Member shall, with respect to any particular transaction to\nwhich such Member is a party, jointly own along with the other party(ies) to\nsuch transaction, without any rights of attribution or accounting, the\nTransaction Data for such transaction; provided that such ownership shall be\nsubject to the ownership and use rights of PurchasePro and AuctioNet which are\nset forth in this Agreement.\n\n      11.3  Each Party shall own, without any obligation of accounting or\nattribution to other Party, and may freely use or disclose as it individually\ndetermines, Sanitized Transaction Data.\n\n      11.4  Each Party may retain possession of, and make use of, copies of the\nMember Information, Supplied Data and Transaction Data solely for the purpose of\n(i) enabling PurchasePro and PurchasePro Customers to use theAuctioNet Services,\nSoftware and Integrated Software, and (iii) otherwise performing AuctioNet's\nobligations and responsibilities under this Agreement. Subject to the\nrestrictions set forth in Section 11.5 below, a Party's use of the Member\nInformation, Supplied Data and Transaction Data may include the storage,\ndisplay, parsing, modification, reproduction, copying, transmission,\ntranslation, performance, publication, broadcast, preparation of derivative\nworks or dissemination thereof, internally by such Party.\n\n      11.5  Except as otherwise set forth in the Agreement, each Party shall\nmaintain the confidentiality of, and shall not disclose, disseminate or provide\nto any other person, firm, organization or third party (except for their\nrespective employees, agents, contractors, advisors or representatives who have\na reasonable need to know), Member Information, Supplied Data and Transaction\nData; provided, however, that the foregoing shall not apply to Member\nInformation, Supplied Data or Transaction Data that: (i) is or becomes publicly\nknown without violation of this Agreement; (ii) is already known to such Party\nwithout restrictions at the time of its disclosure to such Party; (iii) after\nits disclosure to AuctioNet, is made known to such Party without restrictions by\na third party having the right to do so; (iv) is legally required to be\ndisclosed by such Party pursuant to a judicial order from a court of competent\njurisdiction; or (v) is \"Public Information\" (i.e., information regarding a\nMember, its products and services which is public in the normal course of\nMember's business and operations and\/or which is necessarily and\n\n\n                                      -12-\n\n\nappropriately public (and accessible by third parties within a marketplace) to\nenable the working of transactions within a marketplace).\n\n      11.6  Each Party shall take such actions as are necessary and appropriate\nto obtain all necessary rights and releases required to permit and enable such\nParty to possess and exercise the rights and perform the services and the\nactivities described in this Agreement with respect to the Member Information,\nSupplied Data, Transaction Data and Sanitized Transaction Data.\n\n12.     Term and Termination.\n\n      12.1  Term. The term of this Agreement shall commence on the Effective\nDate and shall continue in full force and effect thereafter unless terminated by\nPurchasePro in accordance with Section 12.2.\n\n      12.2  Termination. If either Party commits a material breach of this\nAgreement which is not capable of being cured within thirty (30) days and fails\nto (i) proceed promptly and diligently to correct the breach, (ii) develop\nwithin thirty (30) days following written notice of such breach from the other\nParty a complete plan for curing the breach, and (iii) cure the breach within\nsixty (30) days of notice thereof, the non-breaching Party may terminate this\nAgreement on written notice at any time following the end of such ninety (90)\nday period.\n\n      12.3  Effect of Termination. The following Sections shall survive the\ntermination or expiration of this Agreement: Sections 1, 2, 4, 7, 8, 9, 10, 11,\n12 and 13 (except for Section 13.1). Notwithstanding the foregoing, in the event\nof termination of this Agreement by AuctioNet pursuant to Section 12.2 due to\nPurchasePro's uncured breach of any obligation set forth in Sections 2.1, 2.2, 4\nor 10 of this Agreement (\"AuctioNet Termination\"), Sections 2 and 4 of this\nAgreement shall remain in effect only for twelve (12) months after the date of\ntermination (the \"Transition Period\"). Further, upon notice of AuctioNet\nTermination, the parties shall cooperate in all reasonable respects with one\nanother to facilitate a smooth transition so that PurchasePro may replace the\ntechnology licensed hereunder with that of another provider. In this connection,\nAuctioNet shall deliver to PurchasePro free of charge and without condition or\ndelay a copy of (A) all Member Information, Supplied Data, Transaction Data and\nSanitized Transaction Data in database format in AuctioNet's possession (except\nfor data such as credit card data that AuctioNet is prohibited by law or\ncontract from providing to third parties), (B) all table layouts, and (C) any\nother information owned by PurchasePro pursuant hereto. AuctioNet shall be\ncompensated, at AuctioNet's applicable standard hourly rates, for any such\nservices that AuctioNet performs to prepare for and\/or complete such services;\nprovided, however that AuctioNet's applicable standard hourly rates for any\nperson who performs such services shall not be greater than the rates that\nAuctioNet would charge to a similarly situated customer for the same person's\nservices (i.e. AuctioNet shall not be entitled to charge PurchasePro a premium\nfor services that are being performed in connection with and AuctioNet\nTermination. Further, AuctioNet shall, during the Transition Period continue, at\nPurchasePro's request, the hosting services hereunder.\n\n13.     Miscellaneous.\n\n     13.1  Assignment. Neither Party may assign this Agreement or otherwise\ntransfer the license granted pursuant hereto, or any rights or obligations\nhereunder, whether by operation of law or otherwise, without the prior written\nconsent of the other Party, not to be unreasonably withheld, except in the event\nof any conveyance or other transfer of any capital securities of a Party, or any\nother transaction whatsoever, the effect of which is to confer upon the\nrecipient or recipients thereof the ability to determine a majority of members\nof such Party's board of directors or otherwise control the affairs of such\nParty or a transfer of all or substantially all of the assets of a Party.\n\n\n                                      -13-\n\n\n     13.2  Waiver and Amendment. No modification, amendment or waiver of any\nprovision of this Agreement shall be effective unless in writing and signed by\nthe Party to be charged. No failure or delay by either Party in exercising any\nright, power, or remedy under this Agreement, except as specifically provided\nherein, shall operate as a waiver of any such right, power or remedy.\n\n     13.3  Choice of Law; Arbitration; Venue. This Agreement shall be governed\nby the laws of the California, excluding conflict of laws provisions. Any\ndisputes arising out of this Agreement shall be resolved by binding arbitration\nin accordance with the then-current commercial arbitration rules of the American\nArbitration Association (\"Rules\"). The arbitration shall be conducted by one (1)\narbitrator appointed in accordance with the Rules and shall take place in San\nCarlos, California. A judgment upon the award may be entered in any court having\njurisdiction of the parties, including without limitation the courts in San\nCarlos, California. The non-prevailing Party in the arbitration shall pay all\nfees and charges of the American Arbitration Association (including without\nlimitation reasonable attorney's fees).\n\n      13.4  Notices. All notices, demands or consents required or permitted\nunder this Agreement shall be in writing. Notice shall be considered delivered\nand effective on the earlier of actual receipt or when (a) personally delivered;\n(b) the day following transmission if sent by facsimile followed by written\nconfirmation by registered overnight carrier or certified United States mail; or\n(c) one (1) day after posting when sent by registered private overnight carrier\n(e.g., DHL, Federal Express, etc.); or (d) five (5) days after posting when sent\nby certified United States mail. Notice shall be sent to the parties at the\naddresses set forth on the first page of this Agreement or at such other address\nas shall be specified by either Party to the other in writing.\n\n     13.5  Independent Contractors. The Parties are independent contractors\nwith respect to each other. Each Party is not and shall not be deemed to be an\nemployee, agent, partner or legal representative of the other for any purpose\nand shall not have any right, power or authority to create any obligation or\nresponsibility on behalf of the other.\n\n     13.6  Severability. If any provision of this Agreement is held by a court\nof competent jurisdiction to be contrary to law, such provision shall be changed\nand interpreted so as to best accomplish the objectives of the original\nprovision to the fullest extent allowed by law and the remaining provisions of\nthis Agreement shall remain in full force and effect.\n\n     13.7  Force Majeure. Each Party to this Agreement shall be excused from\nany delay or failure in its performance hereunder, other than for payment of\nmoney, caused by any disruption or slow speed of the Internet, break-downs of\nsecurity or introduction of computer viruses (and the like) by third parties,\nany labor dispute, government requirement, act of God, or any other cause beyond\nits control. Such Party shall use best efforts to cure any such failure or delay\nin performance arising from a force majeure condition, and shall timely advise\nthe other Party of such efforts.\n\n     13.8  Complete Understanding. This Agreement including all Exhibits and\nthe non-disclosure agreement between the parties incorporated herein pursuant to\nSection 10 of this Agreement, constitutes the final, complete and exclusive\nagreement between the parties with respect to the subject matter hereof, and\nsupersedes any prior or contemporaneous agreement.\n\n      13.9  Export Controls and U.S. Government Transactions. PurchasePro shall\ncomply with all applicable laws, rules and regulations, including without\nlimitation the United States Foreign Corrupt Practices Act and all applicable\nUnited States export control laws and regulations, in connection with its use of\ntheAuctioNet Services, Software and Integrated Services under this Agreement.\nWithout limiting the preceding sentence, PurchasePro shall not permit any\nresidents of any countries to which the export or\n\n\n                                      -14-\n\n\nimport of commodities and technical data is prohibited by the Export\nAdministration Regulations of the U.S. Department of Commerce, the international\nTraffic In Arms Regulations of the U.S. Department of State or the Enhanced\nProliferation Control Initiative (collectively, \"U.S. Export Controls\") to\nbecome members or to conduct any transaction using theAuctioNet Services,\nSoftware and Integrated Services, and PurchasePro shall not export or re-export\nor permit the export or re-export of the Software in violation of any U.S.\nExport Control. AuctioNet agrees to reasonably assist PurchasePro in obtaining\nany required export permissions at no additional cost to PurchasePro.\n\n      13.10  Counterparts. This Agreement may be executed in any number of\ncounterparts, each of which shall be deemed an original and which, if taken\ntogether, shall be deemed to constitute one and the same instrument.\n\n      13.11  Construction. The fact that one Party drafted some or all of this\nAgreement shall not be held against such Party in any dispute regarding\nconstruction or interpretation of this Agreement or any part of this Agreement.\n\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective\nDate.\n\nPURCHASEPRO.COM, INC.                     AUCTIONET.COM, INC.\n\n\nBy:                                       By:\n   --------------------------                -------------------------------\nName:                                     Name:\n     ------------------------                  -----------------------------\nTitle:                                    Title:\n      -----------------------                   ----------------------------\nDate:                                     Date:\n     ------------------------                  -----------------------------\n\n\n                                      -15-\n\n\n                                    EXHIBIT A\n\n                                    SOFTWARE\n\nOphelia 3.01 Auction Exchange Software\n\nOphelia is a proprietary robust, scalable application framework written in\nperl5.\n\nOphelia's application framework includes the following:\n\n1.    Object management\n2.    Template Parsing and Caching\n3.    Session Management\n4.    Data persistence and retrieval\n5.    Cache Management\n6.    Authentication and Security\n7.    Partner Management and Differentiation\n\nOphelia specific applications developed to date include:\n\n1.    Auction Web Site\n      a. Customer Registration, Recognition, Self Service\n      b. Partner Integration for Customer Data and Authentication\n      c. Credit Card\/Payment Handling\n      d. Catalog (Browse, Search, Product Information, Showcasing)\n      e. Sales (Auctions, Bidding)\n\n2.    Backend Management Tools for Auctions\n      a. Sale Management\n      b. Customer Management\n      c. Product Management\n      d. Order Management\n      e. Supplier Management\n      f. Partner Management\n      g. Exchange Management\n\nOphelia related applications (non-dependent on the applications framework):\n\n1.   Real time auction and bid information available in XML\n\n2.   Messaging Services related to bidding, order processing, payment processing\n\n3.   Payment Processing Tools\n\n4.   Order Processing Tools\n\n5.   Auction Scheduling Tools\n\n\n                                      -16-\n\n\n                                    EXHIBIT B\n\n                        MAINTENANCE AND SUPPORT SERVICES\n\nAuctioNet will provide Level 1 Support to PurchasePro Customers requesting\nassistance. A transition program, including training and procedures, will be in\nplace for PurchasePro\/NetBusiness B2B marketplace customer support to handle\ninquiries through the existing channels, if so required. Notwithstanding the\nforegoing, PurchasePro may at its option provide all Level 1 Support directly to\nPurchasePro Customers.\n\nLevel 1 Support means the service provided to resolve minor problems with the\nSoftware and\/or problems related to the hosted physical infrastructure or\nfunctionality.\n\nPurchasePro shall use all commercially reasonable efforts to promptly provide\nAuctioNet with notification of bugs encountered in the Software.\n\nAuctioNet will provide Level 2 Support solely to PurchasePro, 24 hours per day,\n7 days a week. Customer Support will be live from 7:00am PST to 7:00pm PST\nMonday through Friday with on-call pager coverage outside those times.\nPurchasePro and all PurchasePro Customers may also inquire with Customer Support\nvia e-mail. Customer Support will check e-mail on a daily basis and respond to\nsuch e-mail by the close of each business day. Level 2 Support means all calls\nor requests related solely to the AuctioNet Services and the Software and shall\ninclude resolving problems whereby the Software or Integrated Software does not\nfunction according to the Integration Plan either during installation or in\noperation. In providing Level 2 Support, AuctioNet will make all reasonable\ncommercial efforts to contact PurchasePro within four (4) hours of a request\nbeing submitted, and to resolve and\/or provide specific action plans for\nresolution within one (1) business day. On less critical Level 2 Support\nrequests, AuctioNet will be required to work only during normal business hours\nto resolve the problem until resolved.\n\nAuctioNet will promptly notify the PurchasePro Engagement Manager of any call or\nrequest that exceeds the scope of the Level 1 Support. The AuctioNet Engagement\nManager will work with the PurchasePro Engagement Manager in determining a\nsolution to the problem.\n\n\n                                      -17-\n\n\n                                    EXHIBIT C\n\n                                      FEES\n\nPurchasePro shall pay to AuctioNet a total of $5,000,000 of which (i) $3,000,000\nwill constitute fees for the licenses granted in Section 2 and will be due and\npayable upon the execution of this Agreement by both Parties hereto; and (ii)\nthe remaining $2,000,000 will constitute fees for the services by AuctioNet\npursuant to Section 5 (of which $1,000,000 will constitute fees for the\nIntegration Services (\"Integration Fee\")) and will be paid in Twenty-Four (24)\nequal monthly installments (each, a \"Monthly Installment\") on the 1st of each\nmonth, commencing on February 1, 2001 and with the last payment due on January\n1, 2003.\n\nNotwithstanding the foregoing, in the event that either (i) the Integration Plan\nis not approved by PurchasePro pursuant to Section 5.2(c) by March 15, 2001 or\n(ii) the Integration is not completed in a timely manner in accordance with the\ntime schedule set forth in the PurchasePro-approved Integration Plan, for each\nand every month the Integration Plan is not approved or that Integration is not\ncompleted in a timely manner, as applicable, the portion of the Monthly\nInstallment (then due and owing upon the expiration of such month) representing\nthe Integration Fee shall be deemed deferred by AuctioNet. Further, PurchasePro\nshall no longer be obligated to pay the same for performance which is more than\nninety (90) days late. No amount shall be deemed waived or deferred by AuctioNet\nif AuctioNet can reasonably demonstrate that PurchasePro unreasonably withheld\napproval of the Integration Plan or that failure to complete the Integration on\na timely manner was the result of an act or failure to act by PurchasePro or the\noccurrence of a force majeure event or condition stated in Section 13.7 of the\nAgreement.\n\n\n                                      -18-\n\n\n                                    EXHIBIT D\n\n                                 SERVICE LEVELS\n\n1.    Site Infrastructure. AuctioNet will be responsible for all communications,\n      hosting and connectivity costs and expenses associated with the\n      AuctioNet's site. AuctioNet will provide all hardware, software,\n      telecommunications lines and other infrastructure necessary to meet\n      traffic demands on the AuctioNet Site from the PurchasePro global\n      marketplace. AuctioNet will design and implement the network between the\n      PurchasePro global marketplace and AuctioNet site such that (i) no single\n      component failure will have a materially adverse impact on PurchasePro\n      Customers seeking to reach the AuctioNet site from the PurchasePro global\n      marketplace and (ii) no single line under material control by AuctioNet\n      will run at more than 70% average utilization for a 5-minute peak in a\n      daily period. In this regard, AuctioNet will provide PurchasePro, upon\n      request, with a detailed network diagram regarding the architecture and\n      network infrastructure supporting the AuctioNet site. In the event that\n      AuctioNet elects to create a custom version of the AuctioNet site in order\n      to comply with the terms of this Agreement, AuctioNet will bear\n      responsibility for all aspects of the implementation, management and cost\n      of such customized site.\n\n2.    Optimization; Speed. AuctioNet will use commercially reasonable efforts to\n      ensure that: (a) the functionality and features within the AuctioNet site\n      are optimized for the client software then in use by PurchasePro\n      Customers; and (b) the AuctioNet Site is designed and populated in a\n      manner that minimizes delays when PurchasePro Customers attempt to access\n      such site. At a minimum, AuctioNet will ensure that the AuctioNet site's\n      data transfers initiate within fewer than fifteen (15) seconds on average.\n      Prior to commercial launch of any material promotions described herein,\n      AuctioNet will permit PurchasePro to conduct performance and load testing\n      of the AuctioNet site (in person or through remote communications), with\n      such commercial launch not to commence until such time as PurchasePro is\n      reasonably satisfied with the results of any such testing.\n\n3.    User Interface. AuctioNet will maintain a graphical user interface within\n      the AuctioNet site that is competitive in all material respects with\n      interfaces of other similar sites based on similar form technology.\n      PurchasePro reserves the right to review and approve the user interface\n      and site design prior to launch of the Integrated Software and to conduct\n      focus group testing to assess compliance with respect to such consultation\n      and with respect to AuctioNet's compliance with the preceding sentence.\n\n4.    Technical Problems. AuctioNet agrees to use commercially reasonable\n      efforts to address material technical problems (over which AuctioNet\n      exercises control) affecting use by PurchasePro Customers of the AuctioNet\n      site (an \"AuctioNet Technical Problem\") promptly following notice thereof.\n      In the event that AuctioNet is unable to promptly resolve an AuctioNet\n      Technical Problem following notice thereof from PurchasePro (including,\n      without limitation, infrastructure deficiencies producing user delays),\n      PurchasePro will have the right to regulate the promotions it provides to\n      AuctioNet hereunder until such time as AuctioNet corrects the AuctioNet\n      Technical Problem at issue.\n\n5.    Monitoring. AuctioNet will ensure that the performance and availability of\n      the AuctioNet site is monitored on a continuous basis. AuctioNet will\n      provide PurchasePro with contact information (including e-mail, phone,\n      pager and fax information, as applicable, for both during and after\n      business hours) for AuctioNet's principal business and technical\n      representatives, for use in cases when issues or problems arise with\n      respect to the AuctioNet site.\n\n6.    Telecommunications. Where applicable AuctioNet will utilize encryption\n      methodology to secure data communications between the\n\n\n                                      -19-\n\n\n      Parties' data centers. The network between the Parties will be configured\n      such that no single component failure will significantly impact\n      PurchasePro Customers.\n\n7.    Security. AuctioNet will utilize Internet standard encryption technologies\n      (e.g., Secure Socket Layer - SSL) to provide a secure environment for\n      conducting transactions and\/or transferring private member information\n      (e.g. credit card numbers, banking\/financial information, and member\n      address information) to and from the AuctioNet site. AuctioNet will\n      facilitate periodic reviews of the AuctioNet site by PurchasePro in order\n      to evaluate the security risks of such site. AuctioNet will promptly\n      remedy any security risks or breaches of security as may be identified by\n      PurchasePro.\n\n8.    Technical Performance.\n\n      (i)   AuctioNet will design the AuctioNet site to support the\n            PurchasePro-client embedded versions of the Microsoft Internet\n            Explorer 4.XX, 5.XX and 6.XX browsers (Windows and Macintosh) and\n            the Netscape Browser 4.XX and 6.XX and make commercially reasonable\n            efforts to support all other browsers designated by PurchasePro.\n\n      (ii)  To the extent AuctioNet creates customized pages on the AuctioNet\n            site for PurchasePro Customers, AuctioNet will develop and employ a\n            methodology to detect PurchasePro Customers.\n\n      (iii) AuctioNet will periodically review the technical information made\n            available by PurchasePro.\n\n      (iv)  AuctioNet will design its site to support HTTP 1.0 or later protocol\n            as defined in RFC 1945 and to adhere to PurchasePro's parameters for\n            refreshing or preventing the caching of information in PurchasePro's\n            proxy system as outlined by PurchasePro.\n\n      (v)   Prior to releasing material, new functionality or features through\n            the AuctioNet site (\"New Functionality\"), AuctioNet will use\n            commercially reasonable efforts to (i) test the New Functionality to\n            confirm its compatibility with PurchasePro service client software,\n            and (ii) provide PurchasePro with written notice of the New\n            Functionality so that PurchasePro can perform tests of the New\n            Functionality to confirm its compatibility with the PurchasePro\n            service client software. Should any new material, new functionality\n            or features through the AuctioNet site be released without\n            notification to PurchasePro, PurchasePro will not be responsible for\n            any adverse member experience until such time that compatibility\n            tests can be performed and the new material, functionality or\n            features qualified for the PurchasePro service.\n\n9.    PurchasePro Internet Services Support. PurchasePro will provide AuctioNet\n      with access to the standard online resources, standards and guidelines\n      documentation, technical phone support, monitoring and after-hours\n      assistance that PurchasePro makes generally available to similarly\n      situated web-based partners. PurchasePro support will not, in any case, be\n      involved with content creation on behalf of AuctioNet or support for any\n      technologies, databases, software or other applications which are not\n      supported by PurchasePro. Support to be provided by PurchasePro is\n      contingent on AuctioNet providing to PurchasePro demo account information\n      (where applicable), a detailed description of the AuctioNet site's\n      software, hardware and network architecture and access to the AuctioNet\n      site for purposes of such performance and load testing as PurchasePro\n      elects to conduct.\n\n\n                                      -20-\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8609],"corporate_contracts_industries":[],"corporate_contracts_types":[9613,9616],"class_list":["post-42452","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-purchaseprocom-inc","corporate_contracts_types-operations","corporate_contracts_types-operations__ip"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42452","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=42452"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42452"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42452"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42452"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}