{"id":42507,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/manifest-system-services-and-co-branding-agreement-iship-com2.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"manifest-system-services-and-co-branding-agreement-iship-com2","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/manifest-system-services-and-co-branding-agreement-iship-com2.html","title":{"rendered":"Manifest System Services and Co-Branding Agreement – iShip.com Inc. and Mail Boxes Etc. USA Inc."},"content":{"rendered":" MANIFEST SYSTEM SERVICES AND CO-BRANDING AGREEMENT\n -------------------------------------------------- \n\n This Manifest System Services and Co-Branding Agreement (\"Agreement\") is\n --------- \nmade and entered into as of April 27, 1999 (the \"Effective Date\"), by and\n --------------\nbetween iShip.com, Inc., a Washington corporation (the \"Company\"), and Mail\n -------\nBoxes Etc. USA, Inc., a California corporation (\"MBE\").\n ---\n\n RECITALS\n --------\n \n A. The Company has developed an Internet-based shipping system.\n\n B. MBE wishes to have the Company provide an Internet-based service based\non the Company's Internet-based shipping system and the MBE retail manifest\nsystem to the MBE Centers (as defined below) for use in manifesting and shipping\ncustomer packages, all subject to the terms and conditions set forth in this\nAgreement.\n\n C. The Company and MBE desire to engage in certain co-branding activities\non the Internet so as to allow customers of MBE Centers to use the Company's\nInternet-based shipping system in a convenient manner and to list the MBE\nCenters as drop-off locations and retail shipping centers.\n\n D. In connection with the services to be provided hereunder, the Company\ndesires to issue to MBE a warrant to purchase up to One million three hundred\nthirty three thousand three hundred thirty three (1,333,333) shares (as\ndetermined pursuant to the terms of the Warrant) of Series B Preferred Stock of\nthe Company substantially in the form attached hereto as Exhibit A (the\n --------- \n\"Warrant\").\n -------\n AGREEMENT\n ---------\n\n1. Definitions.\n -----------\n\n The following terms are defined for the purposes of this Agreement as\nfollows:\n\n (a) \"Acceptance\" shall mean MBE's acknowledgment pursuant to Section 2\n ----------\nbelow that (i) access to the Service has been granted, and (ii) the Service\nfunctions in accordance with the Specifications.\n\n (b) \"Authorized Equipment\" shall mean the particular type of computer\n -------------------- \nequipment and the specifications thereof set forth in Exhibit B attached hereto\n ---------\non which the Service is intended to be accessed and used by the MBE Centers.\n\n (c) \"Brand Features\" means each party's respective trademarks, trade names,\n --------------\nservice marks, service names and distinct brand elements that appear from time\nto time in each party's properties, ventures and services worldwide and are\nprotected under U.S. copyright law or as to which each party has established\ntrademarks or trade dress rights and any modifications to the foregoing that may\nbe created during the term of this Agreement.\n\n \n (d) \"Brand Guidelines\" means the guidelines, if any, for use of the Brand\n ----------------\nFeatures, which may be prescribed by each party from time to time during the\nterm of this Agreement.\n\n (e) \"Bounty Customer\" shall mean any Company Internet Customer or Third\n ---------------\nParty\/Company Customer. \n\n (f) \"Company Internet Customer\" shall have the meaning set forth on Exhibit\n ------------------------- -------\nC attached hereto.\n-\n\n (g) \"Company Site\" shall mean the web site or sites of the Company on the\n ------------\nInternet, one of which is currently located at www.iship.com.\n -------------\n\n (h) \"Company Technology\" shall mean the Internet-based manifest system of\n ------------------\nthe Company that allows users to, among other things, compare various shipping\nservices, print shipping labels and\/or track shipments using the Internet.\n\n (i) \"Confidential Information\" shall mean the Service Documentation, the\n ------------------------\nSpecifications and any information disclosed by one party to the other pursuant\nto this Agreement that is in written, graphic, machine readable or other\ntangible form and is marked \"Confidential,\" \"Proprietary\" or in some other\nmanner to indicate its confidential nature, including but not limited to\ninformation related to the respective parties' business, products, proposed new\nproducts, customers or related information. Confidential Information may also\ninclude oral information disclosed by one party to the other pursuant to this\nAgreement, provided that such information is designated as confidential at the\ntime of disclosure and is reduced to writing by the disclosing party within a\nreasonable time (not to exceed thirty (30) days) after its oral disclosure, and\nsuch writing is marked in a manner to indicate its confidential nature and\ndelivered to the receiving party.\n\n (j) \"eBay Customer\" shall have the meaning set forth on Exhibit C.\n ------------- --------- \n\n (k) \"In-Center Customer\" shall have the meaning set forth on Exhibit C.\n ------------------ ---------\n\n (l) \"Intellectual Property Rights\" means all rights in and to trade\n ----------------------------\nsecrets, patents, copyrights, trademarks, know-how, as well as moral rights and\nsimilar rights of any type under the laws of any governmental authority,\ndomestic or foreign, including rights in and to all applications and\nregistrations relating to any of the foregoing.\n\n (m) \"Link\" means a URL hidden behind a formatting option that may take the\n ----\nform of a colored item of text (such as a URL description), logo or image, and\nwhich allows a user to automatically move to or between web pages or web sites.\n\n (n) \"Listings\" shall mean the listing of the names, addresses, pricing and\n --------\nother identifying information of each MBE Center which is a party to a\nSubscription Agreement (as defined in Section 3(b)).\n\n (o) \"Manifest\" means the exclusive MBE retail manifest system to be\n --------\ndeveloped by the parties hereto in accordance with the Specifications.\n\n -2-\n\n \n (p) \"MBE Center\" shall mean each franchise of MBE operating a franchise\n ----------\nretail outlet within the United States which enters into a Subscription\nAgreement.\n\n (q) \"MBE-Generated Customer\" shall mean any In-Center Customer, Remote\n ----------------------\nSelf-Service Customer or MBE Internet Customer.\n\n (r) \"MBE Internet Customer\" shall have the meaning set forth on Exhibit C.\n --------------------- ---------\n\n (s) \"MBE Sites\" shall mean the web sites operated by MBE on the Internet\n ---------\nduring the term of this Agreement, including but not limited to the websites\ncurrently located at www.mbe.com and www.mbeonline.com.\n\n (t) \"Remote Self-Service Customer\" shall have the meaning set forth on\n ----------------------------\nExhibit C.\n--------- \n\n (u) \"Specifications\" shall mean the specifications for the Manifest set\n --------------\nforth on Exhibit D, as updated from time to time during the term of this\n ---------\nAgreement in accordance with the terms of this Agreement.\n\n (v) \"Stations\" shall mean the retail manifest shipping stations within each\n --------\nMBE Center and the remote off-site manifest shipping stations, in each case\nwithin the United States, of any MBE Center utilizing Authorized Equipment.\n\n (w) \"Service\" shall mean the combination of the Company Technology and the\n -------\nManifest.\n\n (x) \"Service Documentation\" shall mean all manuals, instructions or other\n ---------------------\ninformation provided by the Company to MBE or MBE Centers which directly relate\nto the functionality and operation of the Service.\n\n (y) \"Third Party\/Company Customer\" shall have the meaning set forth on\n ----------------------------\nExhibit C.\n---------\n\n (z) \"Third Party\/MBE Customer\" shall have the meaning set forth on \n ------------------------\nExhibit C.\n--------- \n\n (aa) \"Update\" shall mean any and all bug fixes, error corrections, and\n ------\nmaintenance updates of the Service.\n \n\n2. Development, Delivery and Acceptance.\n ------------------------------------\n\n (a) Development License. Each party hereby grants to the other party a\n -------------------\n[***]* (except as provided in Section 18(b)(\"Assignment\")), [***]* (with no\n --- ---\nright to sublicense except as set forth below) under all of its Intellectual\nProperty Rights to use, reproduce, modify, and create derivative works of each\nparty's preexisting Intellectual Property Rights solely as is reasonably and\nactually necessary to complete the development of the Service. Each party may\ngrant sublicenses to contractors or subcontractors it engages to work on the\nService, provided \n\n----------\n * Confidential treatment has been requested for the bracketed portion. The\nconfidential redacted portion has been omitted and filed separately with the \nSecurities and Exchange Commission.\n\n -3-\n\n \nthat any such subcontractor has entered into an enforceable agreement reasonably\nacceptable to the other party relating to the assignment of Intellectual\nProperty Rights.\n\n (b) Delivery. The Company shall use its commercially reasonable best\n -------- \nefforts to complete the design of the Manifest and the Service in a timely and\nprofessional manner consistent with commercial software industry standards on or\nbefore August 1, 1999 and deliver the URL and the access codes or passwords\nnecessary to use the Service to MBE and each subscribing MBE Center on or before\nSeptember 1, 1999. MBE and MBE Centers shall provide any assistance reasonably\nrequested by the Company in connection with completing such design and effecting\nsuch delivery. The parties shall cooperate to implement a beta roll-out of the\nService in approximately 100 Designated Locations of MBE Centers selected by\nmutual agreement of the Company and MBE on or before September 1, 1999, and\nthereafter shall mutually agree on a plan to make the Service available to all\nMBE Centers by no later than October 1, 1999.\n\n (c) Inspection. Following the completion of the beta roll-out and testing\n ----------\nof the Service, MBE shall have a period of twenty (20) business days to\nundertake inspection and testing of the Manifest to determine conformance with\napplicable Specifications. The Company shall provide any assistance reasonably\nrequested by MBE in assessing such conformance. If MBE finds that any part of\nthe Manifest does not conform with the applicable Specifications, MBE shall,\nwithin the inspection period, notify the Company and provide a detailed written\ndescription of such nonconformance. Following confirmation by the Company of\nsuch nonconformance, the Company will alter the Manifest within a reasonable\ntime to correct such nonconformance.\n\n (d) Acceptance. Upon verification by MBE that the Manifest conform with the\n ----------\nSpecifications in all material respects, or if MBE fails to notify the Company\nwithin the twenty (20) business day inspection period, the Service shall be\ndeemed Accepted. MBE's sole remedy for correction of problems after Acceptance\nshall be under the Warranties set forth in Section 11.\n\n3. Provision of Service.\n --------------------\n\n (a) Scope of Agreement. Any Service Documentation provided to MBE and\/or\n ------------------\nMBE Centers by the Company shall be subject to all terms and conditions of this\nAgreement. All use of and access to the Service by MBE and all MBE Centers shall\nalso be subject to all terms and conditions of this Agreement.\n\n (b) Service. The Company will operate the Service at its network operating\n -------\ncenter. The Company shall bear all costs associated with the network operating\ncenter, including without limitation hardware and software, networking equipment\nand bandwidth charges, redundant storage and\/or mirroring across multiple\ngeographic locations, and maintenance; provided, however, that Company and MBE\n -------- -------\nshall each pay one-half of the costs and expenses associated with transmitting\ninformation and data from the servers maintained or used by the Company to the\nVSAT network hub, including hardware and backhaul circuits. The Company will\nmake the Service available to MBE Centers via one or more secure Internet sites.\nEach MBE Center approved by MBE that wishes to participate in the Service shall\nenter into a Subscription Agreement with the Company in a form to be mutually\nagreed upon by the parties, which form \n\n -4-\n\n \nshall include appropriate obligations of the MBE Centers as set forth in this\nAgreement (the \"Subscription Agreement\"). MBE agrees to use its commercially\n ----------------------\nreasonable best efforts to facilitate the execution of a Subscription Agreement\nby each participating MBE Center within a reasonable amount of time after the\nEffective Date. The Company hereby grants the MBE Centers a [***]* under all of\n ---\nCompany's Intellectual Property Rights solely to access and use the Service in\naccordance with the terms and conditions of this Agreement and the Subscription\nAgreement.\n\n (c) Authorized Equipment. Each MBE Center shall be responsible for\n --------------------\nobtaining, installing and maintaining the Authorized Equipment at its sole cost\nand expense. The Subscription Agreement shall provide that an MBE Center that\naccesses or uses the Service on any hardware or other equipment, or in\nconjunction with any software, that does not constitute Authorized Equipment\ndoes so as its own risk, and the Company shall not be liable for any failure of\nthe Service on hardware or other equipment, or in conjunction with any software,\nthat does not constitute Authorized Equipment.\n\n (d) Exclusivity\n -----------\n\n (i) The Company shall not enter into any agreement or arrangement,\n including without limitation any sale, license, service agreement,\n co-branding agreement, co-marketing agreement or linking agreement with any\n provider of manifesting or shipping services through non-carrier retail\n shipping locations; provided, however, that:\n\n (A) the Company may provide listings of carrier drop-boxes or\n carrier-owned counter drop-off locations specific to a particular carrier\n (including, without limitation, locations within retail establishments) on\n the Company Site, provided that such listings do not include retail\n shipping locations, including UPS authorized shipping outlets, FedEx\n authorized shipping centers and other commercial mail receiving agencies;\n and\n\n (B) the Company may enter into any such agreement or arrangement\n so long as MBE is given advance written notice of such agreement or\n arrangement and such agreement or arrangement prohibits the use of the\n Manifest or any Company Technology to manifest or ship packages for retail\n customers and provided further that Company terminates service to any such\n entity that uses the Manifest or any Company Technology to serve retail\n customers.\n\n (ii) MBE shall not enter into any agreement or arrangement with any\n provider of an online or Internet-based manifest system other than the\n Company.\n\n (iii) The Company may, at its option, terminate the exclusivity\n provisions set forth in this Section 3(d) upon the occurrence of any of the\n following events: (A) MBE\n\n----------\n * Confidential treatment has been requested for the bracketed portion. The\nconfidential redacted portion has been omitted and filed separately with the \nSecurities and Exchange Commission.\n\n -5-\n\n \n and all MBE Centers together fail to ship at least [***]* packages\n ---\n manifested by the Service in any period of three (3) full months commencing\n on the earlier of (x) March 1, 2000, and (y) the use of the Service to\n manifest packages by at least [***]* MBE Centers (other than any such\n --- \n failure which is directly caused by an event of force majeure (as set forth\n in Section 18(e) or by the failure of the Service to operate in accordance\n with the Specifications or by the Company's breach of any of its\n obligations hereunder), or (B) MBE ceases to own at least [***]* shares of\n ---\n common stock of the Company (calculated on an as-converted basis and as\n adjusted for any stock split, stock dividend, recapitalization or similar\n transaction).\n\n (iv) Beginning 18 months after the Effective Date, MBE may, at its\n option, terminate the exclusivity provisions set forth in this Section 3(d)\n if (A) MBE and all MBE Centers together fail to ship at least [***]*\n ---\n packages manifested by the Service in any three (3) full month period\n ending 18 months after the Effective Date and (B) such failure to meet the\n volume requirements set forth above is related to the unsatisfactory\n performance of the Service as evidenced by written communications from a\n commercially significant number of MBE Centers. \n\n4. Support; Training.\n -----------------\n\n (a) Updates and Service Revisions. The Company will make Updates to the\n -----------------------------\nService in accordance with the requirements set forth in the Specifications at\nno charge for the entire term of this Agreement. Without limiting the foregoing,\nthe Service shall be updated from time to time during the term of this Agreement\nto include accurate and current (i) Listings and (ii) pricing and service\ndescriptions for each carrier supported by the Manifest, in each case as soon as\nreasonably practicable following the receipt by the Company of such Listings,\npricing and service descriptions. As reasonably necessary, the Company shall\nupdate the Specifications to reflect such Updates and shall provide a copy of\nsame to MBE at least once per calendar quarter. If the Company develops\nadditional Intellectual Property Rights that are made available without\ndevelopment charge to other customers of the Company, the Company will also make\nsuch Intellectual Property Rights available to MBE without development charge.\n\n (b) MBE Center Support. MBE shall have the right to designate in writing up\n ------------------\nto five (5) second-level support personnel individuals and alternates to such\nindividuals as contact persons (the \"Contact Persons\") (although the parties may\n ---------------\nmutually agree to increase such number of Contact Persons to ensure adequate\nsupport exists for the MBE Centers) Such Contact Persons shall interface with\nthe MBE Centers with respect to matters relating to the Service and may transmit\nrequest assistance and descriptions of problems encountered with the Service to\nthe Company via electronic mail, fax, or overnight mail. The Company will\nprovide telephone support to the Contact Persons at a level and in such a manner\nas the parties mutually agree to be adequate. The Company shall use reasonable\nefforts to provide the Contact Persons with answers and solutions to problems\nencountered by MBE or the MBE Center in the course of MBE's or MBE Centers'\nnormal and proper use of the Service in accordance with the terms and \n\n----------\n * Confidential treatment has been requested for the bracketed portion. The\nconfidential redacted portion has been omitted and filed separately with the \nSecurities and Exchange Commission.\n\n -6-\n\n \nconditions of this Agreement. Only the Contact Persons may contact the Company\nin connection with matters relating to technical support, and the Company shall\nhave no obligation to answer questions or assist MBE or MBE Centers' personnel\nother than the Contact Persons. The Company shall provide a reasonable amount of\ntraining and training materials to the Contact Persons to provide the Contact\nPersons with information concerning the Service and to assist the Contact\nPersons in providing support to the MBE Centers and other personnel of MBE. MBE\nshall take reasonable steps to ensure that MBE Centers and personnel of MBE\nother than the Contact Persons do not contact the Company directly with respect\nto issues relating to support of the Service. The Company shall take reasonable\nsteps to provide adequate industry standard support of all Internet users of the\nCompany Site and other sites using the Company Technology. MBE and MBE Centers\nmay refer all support questions relating directly to the Company Site or the\nCompany Technology to the Company in accordance with the foregoing.\n\n5. Records; Audits.\n ---------------\n\n The Company shall maintain complete and accurate records of the number of\npackages shipped by the MBE Centers using the Service and all payments due or\naccrued to the Company by MBE Centers hereunder. MBE shall, at any time during\nthe term of this Agreement, be entitled to audit all such records upon ten (10)\ndays written notice to the Company, in order to confirm the accuracy of such\nrecords and conformance with the terms and conditions of this Agreement;\nprovided, however, that no more than one (1) such audit may be conducted in any\n-------- -------\nninety (90)-day period. Any such audit shall be performed at MBE's expense\nduring the Company's normal business hours; provided, however, that in the event\n -------- -------\nthat such audit reveals any non-compliance with any term of this Agreement by\nthe Company, the Company shall bear the cost of such audit.\n\n6. Additional Development.\n ----------------------\n\n (a) Request for Proposal. From time to time, MBE may request additional\n --------------------\ncustom software or other custom development to be provided by the Company under\nthis Agreement. If MBE has a requirement for a specific enhancement or\nmodification of the Service, MBE will identify to the Company in writing a\nsummary of such requirement (the \"Request for Proposal\"). Such Request for\n --------------------\nProposal will provide a description sufficient to enable the Company to\ndetermine the general demand for and its plans, if any, to develop the same or\nsimilar enhancements or modifications.\n\n (b) Terms and Conditions. If the Company decides that it has the technical\n --------------------\nability to fulfill the Request for Proposal, then the Company will respond to\nMBE within forty-five (45) days of receiving the Request for Proposal, stating\nthe terms and conditions upon which the Company would be able to undertake such\ndevelopment, including, but not limited to, changes to the Specifications,\ncustom development charges, and a proposed delivery schedule.\n\n (c) Development and Billing Rates. The Company shall perform such\n -----------------------------\ndevelopment in accordance with the highest professional standards. The cost of\nsuch development shall be the Company's standard billing rates then in effect\n(in addition to reimbursement of any expenses, in accordance with the Company's\nstandard practices), which shall be paid by MBE within thirty (30) days of\nreceipt of an invoice therfor. No additional fees or bounties shall be owed or\n\n -7-\n\n \npayable in connection with such development, unless such development results in\na revenue-generating feature or functionality of the Service which is outside of\nthe scope of the Specifications, in which case the parties shall negotiate in\ngood faith to mutually agree upon a reasonable fee mechanism therefor and\/or\nreimbursement of development expenses. Upon completion of such additional\ndevelopment, the Company shall update the Specifications to reflect such\nadditional development and shall provide a copy of same to MBE.\n\n (d) Credit. MBE shall receive a credit applicable to such billing rates\n ------\n(but not to reimbursement of expenses) for any development performed by the\nCompany under this Section 6 equal to [***]* of the total fees paid by MBE and\n ---\nall MBE Centers, which credit shall be reflected on a monthly statement by the\nCompany to MBE. Any such credit must be used within twelve (12) months of\nreceipt of payment by the Company.\n\n7. Ownership.\n ---------\n\n (a) General. The Company will have full and exclusive right, title and\n -------\nownership interest in and to the Service and the Specifications and the\nIntellectual Property Rights therein. The Company is, and shall be, the sole\nowner of all inventions, discoveries and\/or enhancements relating to the Service\nand the Specifications, including all copies, translations, compilations,\npartial copies, derivative works and updated works, whether partial or complete\nand whether or not merged into other program materials and whether in written or\nunwritten form. Except as authorized by this Agreement (including MBE's right to\nuse the Specifications as set forth in Section 15(d)(iv)) or as otherwise agreed\nin writing, MBE and MBE Centers may not, directly, or through any person or\nentity, in any form or manner, copy, distribute, reproduce, incorporate, use or\nallow access to the Service or the Specifications, or modify, prepare derivative\nworks of, decompile, reverse engineer, disassemble or otherwise attempt to\nderive source code or object code from the Service or the Specifications.\n\n (b) Proprietary Notices. MBE will ensure that all copies of Service\n -------------------\nDocumentation made in accordance with this Agreement will incorporate copyright\nand other proprietary notices in the same manner that the Company incorporates\nsuch notices in the Service or in any manner reasonably requested by the\nCompany, and MBE agree not to delete or modify any such notices incorporated in\nthe Service Documentation in any respect. MBE will also permit the Company to\nenter any of MBE's premises during regular business hours to inspect the use of\nthe Service in any reasonable manner. The Subscription Agreement shall provide\nthat MBE Centers will comply with the terms of this Section 7(b).\n\n (c) List of Trademarks. Each party (the \"Granting Party\") hereby grants the\n ------------------ -------------- \nother party (the \"Using Party\") a limited license to use its Brand Features in\n -----------\nconnection with the marketing, distribution, provision of access to, and support\nof the Service. The Using Party agrees that such Brand Features are the\nexclusive property of the Granting Party and that all usage of such marks and\nany goodwill established by the use of such marks shall inure to the benefit of\nthe Granting Party and that this Agreement does not confer any goodwill or other\n\n----------\n * Confidential treatment has been requested for the bracketed portion. The\nconfidential redacted portion has been omitted and filed separately with the \nSecurities and Exchange Commission.\n\n -8-\n\n \ninterests in such marks on the Using Party The Using Party will comply with the\nGranting Party's Brand Guidelines. The Using Party shall provide to the Granting\nParty examples of any use of the Brand Features of the Granting Party prior to\nuse. The Using Party shall modify or discontinue such use if requested by the\nGranting Party. Neither party shall adopt or attempt to register any trademark,\ntrade name, or service mark which is confusingly similar to the other party's\nBrand Features such as \"Ship Mailboxes\" (and the like).\n\n (d) Customer Information. The Company and MBE shall jointly own (without\n -------------------- \nduty to account) all customer lists and related customer data gathered through\nthe use of the Service by customers of MBE and MBE Centers (\"Customer Data\").\n ------------- \nDuring the term of this Agreement, neither party shall provide any Customer Data\nto any third party (other than MBE Centers or an affiliate of MBE or the\nCompany) without the prior written consent of the other party The Company shall\ninitially provide the Customer Data to MBE in acceptable electronic format as\nsoon as practicable following the reasonable request of MBE, and, once MBE (at\nits sole cost and expense) has implemented an appropriate means to warehouse the\nCustomer Data, the parties shall take reasonable steps to transfer all existing\nCustomer Data to MBE and implement a system whereby the Customer Data is\nautomatically downloaded and provided to MBE on a periodic basis. The Company\nagrees to retain the Customer Data in accordance with the Company's own data\nretention policies, and in any case for no less than 13 months from the creation\nof such Customer Data. The Company, MBE, affiliates of the Company and MBE, and\nthe MBE Centers may each use the Customer Data for marketing and other purposes\nin accordance with a mutually agreed upon privacy policy and in accordance with\nany mutually agreed upon privacy policy displayed to customers in connection\nwith the Service. Notwithstanding the foregoing, the Company agrees not to use\nany Customer Data to solicit any MBE-Generated Customers with respect to any\nservices offered by the Company; provided, however, that the Company may use\nCustomer Data to solicit such customers who have a shipping account with a\ncarrier or with respect to services not offered by MBE and the MBE Centers.\nNotwithstanding the foregoing, MBE agrees not to use any Customer Data in any\nmanner which would reasonably be expected to eliminate any Bounty Package\npayment to the Company hereunder.\n\n (e) Reserved Rights. Without limitation of the foregoing, each party\n ---------------\nreserves all rights other than those expressly granted in this Agreement, and no\nlicenses are granted except as expressly set forth herein.\n\n (f) Notices. Each party agrees to display mutually agreeable trademark and\n -------\ncopyright notices or legends of the other party when using such other party's\nBrand Features. Each party shall in advance submit to the other party the\nproposed placement of such notices or legends (including, without limitation,\nthe place and manner of incorporation into electronic media or transmissions),\nand such other party shall have the right, acting reasonably, to approve the\nsame.\n\n8. Payments; Taxes.\n ---------------\n\n (a) Basic Fee. In consideration for the Service provided hereunder, for\n ---------\neach package shipped utilizing the Service (other than a package which is\nshipped first class by the U.S. Postal \n\n -9-\n\n \nService), the Company shall be entitled to receive the amount of [***]* (the\n ---\n\"Basic Fee\"). MBE agrees to use its commercially reasonable efforts to execute\n ---------\nagreements, or to facilitate the execution of agreements among the appropriate\nparties, so that such Basic Fee is paid to the Company directly from the carrier\nwhich ships such package no later than fifteen (15) days following the end of\nthe month in which such package was shipped. If MBE is unable, despite its\ncommercially reasonable efforts, to facilitate the execution of such an\nagreement with one or more carriers, the Basic Fee shall be paid by each MBE\nCenter directly pursuant to the terms of the Subscription Agreement.\n\n (b) Bounty Fee. In further consideration for the Service and the other\n ----------\nobligations of the Company hereunder, for each package shipped by or through an\nMBE Center by a Bounty Customer who pays the shipping rates charged by such MBE\nCenter, (\"Bounty Package\"), the Company shall be entitled to receive the\n --------------\nfollowing amounts (the \"Bounty Fee\") from each such MBE Center, for Bounty\n ----------\nPackages shipped during each calendar month:\n\n (i) in the event that less than [***]* Bounty Packages shall have\n ---\nbeen shipped by the MBE Centers during the twelve (12) full months prior to the\nshipping of such Bounty Package (or, if such information is not yet available\nfor the month prior to the month in which such Bounty Package is shipped, the\nmost recent twelve (12) full months for which such information is available)\n(the \"Measurement Period\"), the amount of [***]* per Bounty Package shipped via\n ------------------ --- \nair transportation and the amount of [***]* per Bounty Package shipped via\n ---\nground transportation;\n\n (ii) in the event that at least [***]* but less than [***]* Bounty\n --- ---\nPackages have been shipped by the MBE Centers during the Measurement Period, the\namount of [***]* per Bounty Package shipped via air transportation and the\n ---\namount of [***]* per Bounty Package shipped via ground transportation;\n ---\n\n (iii) in the event that at least [***]* but less than [***]* Bounty\n --- ---\nPackages shall have been shipped by the MBE Centers during the Measurement\nPeriod, the amount of [***]* per Bounty Package shipped via air transportation\n ---\nand the amount of [***]* per Bounty Package shipped via ground transportation;\n ---\nand\n\n (iv) in the event that at least [***]* Bounty Packages shall have been\n --- \nshipped by the MBE Centers during the Measurement Period, the amount of [***]*\n ---\nper Bounty Package shipped via air transportation and the amount of [***]* per\n --- \nBounty Package shipped via ground transportation.\n\n (c) eBay Fee. In further consideration for the Service and the other\n --------\nobligations of the Company hereunder, for each package shipped by or through an\nMBE Center by an eBay Customer (\"eBay Package\"), the Company shall be entitled\n ------------\nto receive the following amounts from such MBE Center for eBay Packages shipped\nduring each calendar month, in each case \n\n----------\n * Confidential treatment has been requested for the bracketed portion. The\nconfidential redacted portion has been omitted and filed separately with the \nSecurities and Exchange Commission.\n\n -10-\n\n \nafter deduction of the lesser of (x) [***]* and (y) the amount paid or to be\n ---\npaid by such eBay Customer directly to the Company with respect to the shipment\nof such package (the \"eBay Fee\"):\n --------\n\n (i) in the event that at least [***]* but less than [***]* eBay\n --- --- \nPackages have been shipped by MBE and the MBE Centers during the Measurement\nPeriod, the amount of [***]* per eBay Package shipped via air transportation and\n ---\nthe amount of [***]* per eBay Package shipped via ground transportation;\n ---\n\n (ii) in the event that at least [***]* but less than [***]* eBay\n --- ---\nPackages shall have been shipped by the MBE Centers during the Measurement\nPeriod, the amount of [***]* per eBay Package shipped via air transportation and\n ---\nthe amount of [***]* per eBay Package shipped via ground transportation; and\n ---\n \n (iii) in the event that at least [***]* eBay Packages shall have been\n ---\nshipped by the MBE Centers during the Measurement Period, the amount of [***]*\n ---\nper eBay Package shipped via air transportation and the amount of [***]* per\n ---\neBay Package shipped via ground transportation.\n\n (d) Payment Cycle. The Company shall bill and collect all amounts due to\n -------------\nthe MBE Centers for Bounty Packages and eBay Packages from each Bounty Customer\nor eBay Customer, as the case may be, by processing credit card transactions\nover the Internet. The Company shall pay such amounts, less the relevant Bounty\nFee or eBay Fee then in effect, to MBE on the next business day or as soon as\nreasonably practicable (but in any event within one week) following the shipment\ndate of each package, and MBE agrees to distribute such amounts to the MBE\nCenters. At the Company's option, Bounty Customers or eBay Customers may also be\nentitled to pay directly for the shipment of such Bounty Package or eBay Package\nat MBE Centers, and the Company shall be entitled to deduct the relevant Bounty\nFee or eBay Fee then in effect from any payments due to such MBE Center for\nshipment of Bounty Packages, eBay Packages or otherwise.\n\n (e) Right of Offset. In the event of any default in payment by an MBE\n --------------- \nCenter under this Section 8 which continues uncured for a period of thirty (30)\ndays, in addition to any rights or remedies which the Company may have at law or\nequity or pursuant to this Agreement, the Company shall have the right (but not\nthe obligation) to (i) terminate providing the Service to such MBE Center and\n(ii) offset any amounts owed to the Company by such MBE Center from any payments\nowed to such MBE Center by the Company.\n\n (f) Taxes. MBE shall pay or reimburse the Company for all taxes, duties and\n -----\nassessments imposed on MBE or the Company in connection with the license or use\nof the Service by MBE under this Agreement, including without limitation all\nsales, use, excise and other taxes and duties, excluding only taxes based upon\nthe Company's net income. MBE shall \n\n----------\n * Confidential treatment has been requested for the bracketed portion. The\nconfidential redacted portion has been omitted and filed separately with the \nSecurities and Exchange Commission.\n\n -11-\n\n \nhold the Company harmless from all claims and liability arising from MBE's\nfailure to report or pay any such taxes, duties and assessments.\n\n (g) [***]*\n ---\n\n (h) Independent MBE Centers. Notwithstanding any other provision of this\n -----------------------\nAgreement, Company acknowledges and agrees that each participating MBE Center is\nan independently owned and operated franchise and that MBE is not responsible\nfor any debts or acts or omissions of its franchisees. Each use by an MBE Center\nof the Service shall be pursuant to the terms and conditions of a Subscription\nAgreement and each participating MBE Center shall be responsible for paying to\nCompany any charges incurred. Company further acknowledges that each\nparticipating MBE Center may choose to make the Service (or some portion\nthereof) available to customers of MBE Centers.\n\n9. Co-Marketing Obligations.\n ------------------------\n\n (a) Listings. MBE shall supply and regularly update the Listings, and the\n --------\nCompany shall include the Listings in the Company Site and shall use\ncommercially reasonable best efforts to include such Listings on other third\nparty web sites utilizing the Company Technology.\n\n (b) Mutual Links. During the term of this Agreement, each party will ensure\n ------------\nthat the relevant pages in each party's website will include Links to the other\nparty's site(s). Without limiting the foregoing, and within the first three (3)\nmonths following the Effective Date, the Company shall assist MBE at no\nadditional charge in developing a series of Links between the MBE Site and the\nCompany Site. The purpose of such Links shall be to allow MBE Internet Customers\nto access certain agreed-upon features provided by the Company Site. At a\nminimum, such functionality shall be equivalent to that provided by the Company\nSite to public Internet users. As mutually agreed upon by the parties, the\nparties may place advertising banners promoting their products and services on\nappropriate pages of the other party's website.\n\n (c) Marketing and Public Relations. So long as such activities are in\n ------------------------------\ncompliance with MBE Brand Guidelines then in effect (i) the Company shall\ndisplay the logo of MBE on the Company Site and identify MBE as the exclusive\nretail shipping partner of the Company, (ii) to the extent reasonably\npracticable, the Company shall include the logo of MBE on every carrier or\nshipping label generated pursuant to this Agreement and (iii) the parties agree\nto use reasonable efforts to cooperate to develop a co-branded Company\/MBE logo\nto display on Internet-generated shipping labels generated pursuant to this\nAgreement.\n\n10. Confidential Information.\n ------------------------\n\n (a) Limited Access. MBE and MBE Centers agree not to provide or otherwise\n --------------\nmake available any Service Documentation or other Confidential Information of\nthe Company to any person other than employees, consultants, contractors or\nagents of MBE and MBE Centers with a\n\n----------\n * Confidential treatment has been requested for the bracketed portion. The\nconfidential redacted portion has been omitted and filed separately with the \nSecurities and Exchange Commission.\n\n -12-\n\n \nneed to use such Service Documentation or Confidential Information in accordance\nwith the terms of this Agreement.\n\n (b) Confidentiality. Each party shall treat as confidential all\n ---------------\nConfidential Information of the other party, shall not use such Confidential\nInformation except as set forth in this Agreement, and shall use reasonable\nefforts not to disclose such Confidential Information to any third party.\nWithout limiting the foregoing, each of the parties shall use at least the same\ndegree of care which it uses to prevent the disclosure of its own confidential\ninformation of like importance to prevent the disclosure of Confidential\nInformation disclosed to it by the other party under this Agreement. Each party\nshall promptly notify the other party of any actual or suspected misuse or\nunauthorized disclosure of the other party's Confidential Information.\n\n (c) Exceptions. Each party agrees not to disclose or otherwise make such\n ----------\nConfidential Information available to third parties without the other party's\nprior written consent except to the extent that the Confidential Information (i)\nwas in the public domain at the time it was disclosed or has entered the public\ndomain through no fault of such party, (ii) was known to such party, without\nrestriction, at the time of disclosure, as demonstrated by files in existence at\nthe time of disclosure, (iii) is disclosed with the prior written approval of\nthe other party, (iv) was independently developed by such party without any use\nof Confidential Information, (v) became known to such party, without\nrestriction, from a source other than the other party without breach of this\nAgreement by such party and otherwise not in violation of the other party's\nrights, (vi) is required to be disclosed under securities laws or (vii) is\ndisclosed pursuant to the order or requirement of a court, administrative\nagency, or other governmental body; provided, however, that such party shall use\n -------- -------\nall reasonable efforts to provide prompt, written, and sufficient advance notice\nthereof to the other party to enable the other party to seek a protective order\nor otherwise prevent or restrict such disclosure. Each party agrees that to take\nappropriate action by instruction, agreement, or otherwise with its employees,\nagents and representatives to satisfy such party's obligations under this\nAgreement with respect to use, copying, modification, protection and security of\nConfidential Information.\n\n (d) Return of Confidential Information. Upon expiration or termination of\n ---------------------------------- \nthis Agreement, each party shall return all Confidential Information received\nfrom the other party.\n\n (e) Confidentiality of Agreement. Each party shall be entitled to disclose\n ----------------------------\nthe existence of this Agreement, but agrees that the terms and conditions of\nthis Agreement shall be treated as Confidential Information and shall not be\ndisclosed to any third party; provided, however, that each party may disclose\n -------- -------\nthe terms and conditions of this Agreement; (i) as required by any court or\nother governmental body; (ii) as otherwise required by law, (iii) to legal\ncounsel of the parties; (iv) in confidence, to accountants, banks, and financing\nsources and their advisors; (v) in connection with the enforcement of this\nAgreement or rights under this Agreement; or (vi) in confidence, in connection\nwith an actual or proposed merger, acquisition, or similar transaction.\n\n11. Representations, Warranties and Covenants.\n -----------------------------------------\n\n (a) Warranty. Company represents and warrants that during the term of this\n --------\nAgreement the Service shall confirm to its specifications and the Specifications\nin all material\n\n -13-\n\n \nrespects, provided that the Service is properly used in accordance with the\nterms of this Agreement and the Subscription Agreement, and shall not contain a\nhigher number of, or more serious errors, than would be expected by a reasonable\ncommercial user of a service similar to the Service.\n\n (b) Outages. After Acceptance and during the term of this Agreement,\n -------\nCompany will use its best efforts to make the Service available to the MBE\nCenters from 4 a.m. to 9 p.m. PST every day. Scheduled maintenance which may\nresult in an interruption to the Service shall be performed outside of these\nhours. Each party shall provide the other party with reasonable and prompt\nnotification of all known failures of the Service to be operational during these\nhours (\"Outages\"). The Company shall make qualified personnel available to MBE\npersonnel by telephone, e-mail or pager (response within twenty (20) minutes)\nfor the reporting of Outages at no additional charge. Company will then use its\nbest efforts to resolve the Outage as soon as possible. Within six months of the\nEffective Date, the Company and MBE will jointly develop a disaster recovery\nplan outlining plans to respond to Outages.\n\n (c) No Conflicts. The Company is not currently subject and throughout the\n ------------\nterm will not be subject to any obligations or disabilities that will or might\nprevent or interfere with fully keeping and performing all of the agreements,\ncovenants and conditions to be kept or performed hereunder, and the Company has\nnot made nor will make any agreement, commitment, grant or assignment, and will\nnot do, or omit to do, any act or thing that could or might interfere or impair\nthe complete enjoyment of the rights granted and the Services to be provided\nhereunder.\n\n (d) Originality. The Company represents and warrants that it currently has\n -----------\nand throughout the term will have full title to and ownership of (or licenses\nto) the Service and all Intellectual Property Rights embodied in or used in\nconnection therewith, free and clear of liens, claims and encumbrances, and that\nit has full power and authority to grant the rights provided herein.\n\n (e) Year 2000. Company represents, warrants and covenants that the Service\n ---------\nincludes design, performance and functionality such that the Service will not\ngenerate any invalid and\/or incorrect date-related results when used during any\nyear prior to, during or after the calendar year 2000.\n\n (f) Remedies. The Company's sole and exclusive liability and MBE's sole and\n --------\nexclusive remedy for breach of the representations and warranties set forth in\nthis Section 11 shall be, at the Company's election, to either (i) use its best\nefforts to make the Service perform in accordance with the Specifications in all\nmaterial respects as soon as reasonably practicable, or (ii) return the Fees\npaid by MBE and MBE Centers for the Service in which case MBE would have the\nright to either terminate the entire Agreement or the portions of the Agreement\naffected by breach of the representation and warranties. In the event that the\nCompany elects (i) of this sub-section in accordance with the terms and\nconditions set forth herein and is unable to make the Service perform in\naccordance with the Specifications in all material respects within twenty one\n(21) days after such election, MBE may then elect to continue to proceed under\n(i) or MBE may elect to proceed under (ii) of this sub-section.\n\n -14-\n\n \n (g) Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES STATED ABOVE, NEITHER\n ----------\nPARTY MAKES ANY PROMISES, REPRESENTATIONS OR WARRANTIES, EITHER EXPRESS,\nIMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SYSTEM OR THE MANIFEST,\nINCLUDING ITS CONDITION, ITS CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, OR\nTHE EXISTENCE OF ANY LATENT OR PATENT DEFECTS, AND EACH PARTY SPECIFICALLY\nDISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR\nPURPOSE AND NONINFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.\n\n12. Indemnity for Patent or Copyright Infringement.\n ----------------------------------------------\n\n (a) Indemnity. The Company will defend, at its expense, any action brought\n ---------\nagainst MBE and its directors, officers, employees, agents, affiliates,\nsuccessors, assigns or franchisees (\"Indemnitees\") based upon a claim that the\nService used properly in accordance with the terms of this Agreement and the\nSubscription Agreement infringes a U.S. patent or copyright or misappropriates a\ntrade secret under U.S. law (a \"Claim\"). The Company further agrees to pay all\ndamages and costs (including reasonable attorneys' fee and expert witness fees)\nincurred by any Indemnitee in connection with such Claim. The Company shall have\nsole control of any such action or settlement negotiations. Without the consent\nof MBE, which shall not be unreasonably withheld, the Company shall not settle\nany such Claim in a manner that (i) imposes damages or costs on any Indemnitee\nnot covered by the Company hereunder or (b) imposes any injunctive or other\nnon-monetary relief on any Indemnitee. MBE shall notify the Company promptly in\nwriting of each such Claim and gives the Company all authority, information and\nassistance, at the Company's expense, reasonably necessary to settle or defend\nsuch claim.\n\n (b) Remedy Options. If the Service becomes, or in the opinion of the\n --------------\nCompany may become, the subject of a claim of infringement of any U.S. patent or\ncopyright, the Company shall notify MBE, and the Company may, at its option: (i)\nprocure for MBE and MBE Centers the right to use the Service free of any\nliability or (ii) replace or modify the Service to make it non-infringing.\n\n (c) Sole and Exclusive Liability. THIS SECTION 12 SETS FORTH THE SOLE AND\n ----------------------------\nEXCLUSIVE LIABILITY OF THE COMPANY FOR INFRINGEMENT OF THIRD PARTY INTELLECTUAL\nPROPERTY RIGHTS.\n\n (d) Exclusions from Indemnification. The Company assumes no liability, and\n -------------------------------\nshall have no obligation to defend or pay any amounts to any Indemnitee\nhereunder for (i) any method or process in which the Service may be used by MBE\nor any MBE Center which is not set forth in the Specifications, (ii) any\nimproper use of the Service by an Indemnitee or (iii) the combination, operation\nor use of the Service with non-Company software or data, if such infringement\ncould have been avoided but for the combination, operation or use of the Service\nwith such programs or data.\n\n13. Indemnification.\n ---------------\n\n (a) Indemnification by the Company. The Company, at its own expense, will\n ------------------------------\nindemnify, defend and hold harmless MBE, and its employees, franchisees,\nrepresentatives and \n\n -15-\n\n \nagents, against any claim, suit, action, or other proceeding brought against MBE\nor such party, to the extent that such claim, suit, action or other proceeding\nis based on or arises from.\n\n (i) any misrepresentation or breach or representation or warranty of\nthe Company contained herein; or\n\n (ii) any breach of any covenant or agreement to be performed by the\nCompany hereunder.\n\n The Company will pay all costs, damages, and expenses, including, but not\nlimited to, reasonable attorneys' fees and costs awarded against or otherwise\nincurred by MBE in connection with or arising from any such claim, suit, action\nor proceeding attributable to any such claim.\n\n (b) Indemnification by MBE. MBE, at its own expense, will indemnify, defend\n ----------------------\nand hold harmless the Company, and its employees, representatives and agents,\nagainst any claim, suit, action, or other proceeding brought against the Company\nor such party, to the extent that such claim, suit, action or other proceeding\nis based on or arises from:\n\n (i) any misrepresentation or breach of representation or warranty\nof MBE contained herein; or\n\n (ii) any breach of any covenant or agreement to be performed by MBE\nhereunder.\n\n MBE will pay all costs, damages, and expenses, including, but not limited\nto, reasonable attorneys' fees and costs awarded against or otherwise incurred\nby the Company in connection with or arising from any such claim, suit, action\nor proceeding attributable to any such claim.\n\n (c) Procedures. Each party's obligation to indemnify the other hereunder\n ----------\nshall be conditioned upon (i) the indemnified party providing the indemnifying\nparty with prompt notice of any claim that could lead to a claim for\nindemnification, (ii) the indemnified party permitting the indemnifying party to\nassume and control the defense of such action, with counsel chosen by the\nindemnifying party (who shall be reasonably acceptable to the indemnified party)\nand (iii) the indemnified party not entering into any settlement or compromise\nof any such claim without the indemnifying party's prior written consent, which\nshall not be unreasonably withheld or delayed.\n\n -16-\n\n \n14. Limitation of Liability. Notwithstanding anything to the contrary in\n -----------------------\nthis Agreement, in no event shall either party's liability under any provision\nof this Agreement or otherwise arising out of or related to this Agreement\n(other than payments due or accrued under Section 8, exceed the amounts paid by\nMBE and the MBE Centers to the Company pursuant to this Agreement. The parties\nfurther agree that NEITHER PARTY WILL BE LIABLE FOR ANY LOST PROFITS, FOR COSTS\nOF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES OR FOR ANY CLAIM OR DEMAND\nAGAINST A PARTY BY ANY OTHER PARTY. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR\nCONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, OR EXEMPLARY DAMAGES ARISING OUT\nOF THIS AGREEMENT, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH\nDAMAGES, AND UNDER ANY CAUSE OF ACTION, INCLUDING NEGLIGENCE. THESE LIMITATIONS\nSHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED\nREMEDY.\n\n15. Term and Termination.\n --------------------\n\n (a) Term and Renewal Option. The initial term of this Agreement shall\n ----------------------- \ncommence on the Effective Date and end on the fifth anniversary of the Effective\nDate. MBE shall have the right to elect by written notice to the Company at any\ntime between two (2) and six (6) months prior to the end of such initial term or\nany subsequent Renewal Period (as defined below), to notify the Company that MBE\nelects to seek to extend such term for additional two (2)-year periods (each a\n\"Renewal Period\") In the event of such election, MBE and the Company shall have\n -------------- \na period of sixty (60) days in which to negotiate commercially reasonable Basic\nFees, Bounty Fees and eBay Fees (and other applicable fees) (\"Fee Schedule\")\n ------------\nunder which the Company would be willing to renew this Agreement for such\nRenewal Period. If the parties are unable to reach agreement during such sixty\n(60) day period, either party may request that the Fee Schedule be submitted to\narbitration pursuant to Section 18(m). If MBE notifies the Company of its intent\nto so renew prior to the end of such initial term or such Renewal Period, the\nterm of this Agreement shall automatically be extended for the Renewal Period\nand, other than the Fee Schedule, all of the terms and conditions of this\nAgreement shall remain in full force and effect.\n\n (b) Termination.\n -----------\n\n (i) Either party may, at its option, terminate this Agreement upon\nnotice to the other party if (A) the other party materially fails to comply with\nany of the material terms and conditions of this Agreement and (B) if such\ndefault has not been cured within thirty (30) days (forty five (45) days if\nrequired by the nature of the breach) after written notice to the other party\nor, if such breach is not curable within thirty (30) days (forty five (45) days\nif required by the nature of the breach), reasonable efforts and progress are\nnot being made to cure such breach.\n\n (ii) This Agreement shall terminate, without notice, (A) upon the\ninstitution by or against either party of insolvency, receivership or bankruptcy\nproceedings or any other proceedings for the settlement of such party's debts,\n(B) upon either party's making an assignment for the benefit of creditors, or\n(C) upon either party's dissolution or ceasing to do business.\n\n -17-\n\n \n (c) Termination Period.\n ------------------\n\n (i) If this Agreement is terminated or expires in accordance with\nthis Section 15 (other than termination by the Company in the event of an\nuncured material breach by MBE), then MBE shall have a period of up to\ntwenty-four (24) months from and after the date of such termination, to make\narrangements with respect to the conversion of the Service to a non-Company\nmanifest system (the \"Termination Period\"). The date when the Service shall have\n ------------------ \nbeen converted to a non-Company manifest system shall hereinafter be referred to\nas the \"Termination Completion Date\" and shall be the effective date of\n --------------------------\ntermination of this Agreement, in such event. During the Termination Period each\nparty will continue to perform its obligations hereunder, and MBE and MBE\nCenters will continue to pay any applicable fees and payments hereunder to the\nCompany. MBE shall keep the Company informed as reasonably necessary with\nrespect to such conversion. MBE also shall give the Company written notice of\nthe estimated Termination Completion Date promptly after a reasonably definitive\nprojected Termination Completion Date is known by MBE, and shall give written\nnotice to the Company promptly after any change in such estimated Termination\nCompletion Date.\n\n (ii) During the Termination Period, the Company will give reasonable\ncooperation and support to MBE to assure an orderly and efficient transition\nand, without limiting the generality of the foregoing, at MBE's expense, the\nCompany shall be obligated to provide MBE with data reasonably necessary for MBE\nto convert or implement the non-Company systems, procedures and practices.\n\n (d) Effect of Termination.\n ----------------------\n\n (i) Sections 1, 7, 10, 13, 14, 15, 16 and 18, as well as any payments\naccrued prior to termination of this Agreement, shall survive any termination or\nexpiration of this Agreement.\n\n (ii) Within thirty (30) days after the Termination Completion Date,\neach party shall, at its own expense, destroy or return to the Company and make\nno further use of, any property, materials or other items of the other party and\nshall certify, in writing that it has done so\n\n (iii) Nothing contained herein shall limit any other remedies that\neither party may have for the default of the other party under this Agreement\nnor relieve either party of any of their obligations incurred prior to\ntermination of this Agreement.\n\n (iv) During the Termination Period and thereafter, and notwithstanding\nany other provision of this Agreement, MBE will be free to use its own\npersonnel, and\/or engage or contract with any third party to use the\nSpecifications to design, develop and market an Internet-based manifest system\nsimilar to the Manifest (including products that contain functionality similar\nto the Service and which have a \"look and feel\" similar or identical to the\nManifest), in each case solely for the benefit of MBE and the MBE Centers and\ninternational franchisees or licensees of MBE. MBE shall not use the object code\nor source code of the Manifest in the course of such development. Subject to\nMBE's compliance with the provisions of this subsection (iv), the Company shall\nnot\n\n -18-\n\n \nassert any claim against MBE under the Company's Intellectual Property Rights in\nthe Specifications or the Manifest in connection with such development, other\nthan for use of the Company's trademarks, trade names, service marks and service\nnames. Neither party shall have the right to retain or use the specific software\nimplementation of the Manifest developed by the parties hereunder; provided,\nhowever, that the Company may retain one (1) copy of the software implementation\nof the Manifest solely for archival and evidentiary purposes.\n\n16. Publicity. Upon execution of this Agreement, the parties will jointly\n ---------\nprepare a mutually acceptable description of their business relationship as\ncontemplated by this Agreement which may be used by either party in press\nreleases and other marketing materials from time to time during the term of this\nAgreement. Additional press releases or publicity materials shall be approved by\neach party in writing prior to release.\n\n17. Warrant. On the Effective Date, the Company shall issue the Warrant to\n -------\nMBE, upon the terms and subject to the conditions set forth therein.\n\n18. Miscellaneous.\n -------------\n\n (a) Amendments and Waivers. Any term of this Agreement may be amended or\n ----------------------\nwaived only with the written consent of the parties or their respective\nsuccessors and assigns. Any amendment or waiver effected in accordance with this\nSection 18(a) shall be binding upon the parties and their respective successors\nand assigns.\n\n (b) Assignment. Each party shall have the right to assign its rights,\n ----------\nobligations and privileges hereunder to an assignee in connection with any\nmerger, acquisition or sale of all or substantially all of the business to which\nthis Agreement relates. Each MBE Center shall have the right to assign its\nrights and obligations and privileges under a Subscription Agreement in\nconnection with any merger, acquisition or sale of all or substantially all of\nsuch MBE Center's assets. The terms and conditions of this Agreement shall inure\nto the benefit of and be binding upon the respective permitted successors and\nassigns of the parties. Nothing in this Agreement, express or implied, is\nintended to confer upon any party other than the parties hereto or their\nrespective successors and assigns any rights, remedies, obligations, or\nliabilities under or by reason of this Agreement, except as expressly provided\nin this Agreement.\n\n (c) Entire Agreement. This Agreement is the product of both of the parties\n ----------------\nhereto, and constitutes the entire agreement between such parties pertaining to\nthe subject matter hereof, and merges all prior negotiations and drafts of the\nparties with regard to the transactions contemplated herein. Any and all other\nwritten or oral agreements existing between the parties hereto regarding such\ntransactions are expressly canceled.\n\n (d) Independent Contractor. Neither party shall, for any purpose, be deemed\n ----------------------\nto be an agent of the other party and the relationship between the parties shall\nonly be that of independent contractors. Neither party shall have any right or\nauthority to assume or create any obligations or to make any representations or\nwarranties on behalf of any other party, whether express or implied, or to bind\nthe other party in any respect whatsoever.\n\n -19-\n\n \n (e) Force Majeure. In the event that either party is prevented from\n -------------\nperforming or is unable to perform any of its obligations under this Agreement\n(other than a payment obligation) due to any Act of God, fire, casualty, flood,\nearthquake, war, strike, lockout, epidemic, destruction of production\nfacilities, riot, insurrection, material unavailability, or any other cause\nbeyond the reasonable control of the party invoking this section, and if such\nparty shall have used its best efforts to mitigate its effects, such party shall\ngive prompt written notice to the other party, its performance shall be excused,\nand the time for the performance shall be extended for the period of delay or\ninability to perform due to such occurrences. If a force majeure event causes\nthe Company to allocate limited resources among all of its customers, [***]*.\n ---\nThe Company shall resume operation of the Service as soon as reasonably\npracticable upon conclusion of any force majeure event. Notwithstanding the\nforegoing, if such party is not able to perform within sixty (60) days after the\nevent giving rise to the excuse of force majeure, the other party may terminate\nthe Agreement.\n\n (f) Governing Law. This Agreement and all acts and transactions pursuant\n -------------\nhereto and the rights and obligations of the parties hereto shall be governed,\nconstrued and interpreted in accordance with the laws of the State of\nCalifornia, without giving effect to principles of conflicts of law.\n\n (g) Severability. If one or more provisions of this Agreement are held to\n ------------\nbe unenforceable under applicable law, the parties agree to renegotiate such\nprovision in good faith, in order to maintain the economic position enjoyed by\neach party as close as possible to that under the provision rendered\nunenforceable. In the event that the parties cannot reach a mutually agreeable\nand enforceable replacement for such provision, then (i) such provision shall be\nexcluded from this Agreement, (ii) the balance of the Agreement shall be\ninterpreted as if such provision were so excluded and (iii) the balance of the\nAgreement shall be enforceable in accordance with its terms.\n\n (h) Waiver. The waiver of any particular breach or default or any delay in\n ------\nexercising any rights shall not constitute a waiver of any subsequent breach or\ndefault.\n\n (i) Notices. Any notice required or permitted by this Agreement shall be in\n -------\nwriting and shall be deemed sufficient upon receipt, when delivered personally\nor by courier, overnight delivery service or confirmed facsimile, or forty-eight\n(48) hours after being deposited in the regular mail as certified or registered\nmail (airmail if sent internationally) with postage prepaid, if such notice is\naddressed to the party to be notified at such party's address or facsimile\nnumber as set forth below, or as subsequently modified by written notice.\n\n----------\n * Confidential treatment has been requested for the bracketed portion. The\nconfidential redacted portion has been omitted and filed separately with the \nSecurities and Exchange Commission.\n\n -20-\n\n \n If to the Company: iShip.com, Inc.\n 2515 - 140th Ave. NE\n Suite E-110\n Attn: President\n Bellevue, WA 98005\n Facsimile Number: 425\/602-5025\n\n With a Copy To: Craig E. Sherman\n Venture Law Group\n 4750 Carillon Point\n Kirkland, WA 98033\n Facsimile Number: 425\/739-8750\n\n If to MBE: Mail Boxes Etc. USA, Inc.\n 6060 Cornerstone Court West\n San Diego, CA 92121\n Attn: Thomas K. Herskowitz\n Facsimile Number: 619\/546-7499\n\n (j) Headings. The headings of the several sections of this Agreement are\n --------\nintended for convenience of reference only and are not intended to be a part of\nor to affect the meaning or interpretation of this Agreement.\n\n (k) Counterparts. This Agreement may be executed in counterparts, each of\n ------------\nwhich shall be deemed an original and all of which together shall constitute one\ninstrument.\n\n (l) Advice of Legal Counsel. Each party acknowledges and represents that,\n -----------------------\nin executing this Agreement, it has had the opportunity to seek advice as to its\nlegal rights from legal counsel and that the person signing on its behalf has\nread and understood all of the terms and provisions of this Agreement. This\nAgreement shall not be construed against any party by reason of the drafting or\npreparation thereof.\n\n (m) Arbitration.\n -----------\n\n (i) Every claim or dispute arising out of or relating to the\n negotiation, performance or non-performance of this Agreement shall be\n determined by arbitration in accordance with the Commercial Arbitration\n Rules of the American Arbitration Association (\"AAA\"), or as otherwise\n agreed by the parties. The place of arbitration shall be San Diego,\n California.\n\n (ii) In the event of any such claim or dispute, the parties\n shall first attempt to resolve the matter through good faith, informal\n negotiations, including non-binding mediation. In the event that the\n parties are unable to resolve the dispute, either party hereto may\n demand arbitration by written notice to the other party and to the AAA\n in San Diego. The parties shall mutually agree on one arbitrator. If\n the parties cannot so agree, the single arbitrator shall be selected by\n the AAA. The costs of arbitration are to be shared equally by the\n parties. Each party shall be responsible for its own costs and\n attorneys' fees.\n\n -21-\n\n \n (iii) The arbitrator shall not have any power to alter, modify\n or change any of the terms of this Agreement or to grant any remedy\n which is either inconsistent with or prohibited by the terms of this\n Agreement, or not available in a court of law. The arbitrator shall not\n have the authority to commit errors of law or errors of legal\n reasoning. In addition, the arbitrator shall have no power or authority\n to award punitive, consequential or incidental damages.\n\n (iv) The arbitrator shall, within thirty (30) days after the\n matter has finally been submitted to him or her, render a written\n decision making specific findings of fact and setting forth the reasons\n for the decision which shall be consistent with the terms of this\n Agreement. The parties intend that this agreement to arbitrate be\n valid, binding, enforceable, and irrevocable. The terms of this Section\n shall survive the termination or expiration of this Agreement.\n Judgement on any award of the arbitrator shall be binding and may be\n entered in any court having jurisdiction thereof.\n\n [Signature page follows]\n\n -22-\n\n \n The parties have executed this Agreement as of the date first set forth\nabove.\n<\/pre>\n
\n\n
\nCOMPANY: LICENSEE:<\/p>\nISHIP.COM, INC. MAILBOXES ETC. USA, INC.<\/p>\n
\/s\/ Stephen M. Teglovic \/s\/ Charles Lynn Lowder
\n————————————— —————————————-
\n(Signature) (Signature)<\/p>\n
Stephen M. Teglovic Charles Lynn Lowder
\n————————————— —————————————-
\n(Print Name) (Print Name)<\/p>\n
CEO\/Pres Executive Vice President\/General Counsel
\n————————————— —————————————-
\n(Title) (Title)
\n<\/c><\/s><\/caption>\n<\/table>\n
SIGNATURE PAGE TO MANIFEST SYSTEM LICENSE
\n AND CO-BRANDING AGREEMENT<\/p>\n
EXHIBIT A<\/p>\n
FORM OF WARRANT<\/p>\n
EXHIBIT B<\/p>\n
AUTHORIZED EQUIPMENT:
\n———————<\/p>\n
A PC reasonably adequate to access and use the Service for manifesting and
\nshipping packages, with the following minimum specifications:<\/p>\n
. a reasonably adequate scale and a label printer
\n . An internet\/network connection of at least 256k bits\/sec
\n . Processor: P5-233
\n . Ports: 2 Com ports, 1 Parallel port
\n . RM: 64 Megs
\n . HDD: 1.2 GB
\n . Video. 4 MB
\n . OS: Win 98\/OSR2
\n . Browser: IE 5 SP1<\/p>\n
EXHIBIT C
\n POTENTIAL CUSTOMERS<\/p>\n
\n\n=======================================================================================================================
\n TYPE DEFINITION
\n———————————————————————————————————————-
\n
\n I A customer physically present in the retail store-front
\n or remote off-site locations of MBE Centers for a
\n In-Center Customer transaction in which they do not utilize an LMS or
\n MBEX (as such terms are defined below).
\n———————————————————————————————————————-
\n A customer utilizing a self-service lobby manifest
\n II system in a MBE Center (“LMS”) or a self-service
\n —
\n Remote Self-Service Customer MBE-branded remote manifest system (“MBEX”) for a
\n —-
\n transaction.
\n———————————————————————————————————————-
\n A customer shipping a PLD-compliant and ramp-ready
\n III A package* through a MBE Center that is manifested
\n MBE Internet Customer through the MBE Sites.
\n———————————————————————————————————————-
\n A customer shipping a PLD-compliant and ramp-ready
\n III B package through a MBE Center, which package is
\n Company Internet Customer manifested through the Company site.
\n———————————————————————————————————————-
\n A customer shipping a PLD-compliant and ramp-ready
\n package through a MBE Center, which package is
\n III C (1) manifested through the Internet web site of a third
\n Third Party\/MBE Customer party that is con-branded or otherwise affiliated with
\n MBE.
\n———————————————————————————————————————-
\n A customer shipping a PLD-compliant and ramp-ready
\n package through a MBE Center, which package is
\n III C (2) manifested through the Internet web site of a third
\n Third Party\/Company Customer party that is co-branded or otherwise affiliated with
\n the Company or the Service.
\n———————————————————————————————————————-
\n A customer shipping a PLD-compliant and ramp-ready
\n package through a MBE Center, which package is
\n III C (3) manifested through an Internet web site operated by
\n eBay Customer eBay Incorporated or in connection with an auction or
\n sale conducted on such web site.
\n———————————————————————————————————————-
\n IV A customer that utilizes the Service and\/or the
\n Company Customer Company’s products and services other than in
\n connection with a MBE Center.
\n———————————————————————————————————————-
\n<\/c><\/s><\/caption>\n<\/table>\n———-
\n* “PLD-compliant and ramp-ready” shall mean compliance with the electronic
\n data requirements of each carrier supported by the Service.<\/p>\n
EXHIBIT D<\/p>\n
SYSTEM SPECIFICATIONS<\/p>\n
The Service will enable MBE and MBE Centers to process packages for
\ndomestic shipment, weigh these packages, and create shipping labels. The Service
\nwill export data to a given MBE Center’s Point-of-Sale (POS) station, and will
\nsupport ARS\/BIN packages, consignee billing, freight insurance, MBE proprietary
\nor designated transit declared value, and customer address book access. All
\ncarrier rating information will be maintained by the Company from its central
\ndatabase management system (DBMS). MBE Centers will be allowed to create or
\nmodify their own mark-ups for shipping, and, at its expense, the Company will
\nupdate and\/or adjust its pricing information for each MBE Center for each
\ncarrier to reflect such modifications. This Exhibit D may be modified from time
\nto time by mutual agreement of the parties.<\/p>\n
The maximum amount of information downloaded from the Company’s server
\nto the counter manifest station will be 15 kilobytes or less per package
\nprocessed.<\/p>\n
The following carriers and services will be supported:<\/p>\n
UPS
\n—<\/p>\n
Domestic:
\n——–
\n Ground
\n Three Day Select
\n Second Day Air
\n Second Day Air AM,
\n Next Day Air Saver
\n Next Day Air
\n Next Day Air Early AM<\/p>\n
International:
\n————-
\n Canada Standard
\n Worldwide Expedited
\n (including Canada\/Mexico as set forth in the Specifications)
\n Worldwide Express
\n (including Canada\/Mexico as set forth in the Specifications)<\/p>\n
FedEx
\n—–<\/p>\n
Domestic:
\n——–
\n Express Saver
\n 2 Day
\n Standard Overnight
\n Priority Overnight
\n First Overnight<\/p>\n
International:
\n————-
\n International Economy
\n International Priority<\/p>\n
USPS
\n—-<\/p>\n
Domestic:
\n——–
\n Parcel Post
\n Priority Mail
\n Express Mail
\n First Class<\/p>\n
International:
\n————-
\n Parcel Post Air
\n Parcel Post Surface
\n Small Parcel Air
\n Small Parcel Surface
\n Express Mail
\n Global Priority Mail<\/p>\n
——————————————————————————–<\/p>\n
The Service will include the following features, the more detailed
\nfunctionality of which will be agreed to from time to time by the parties as the
\nService is developed:<\/p>\n
1. Table of Contents
\n2. Table of Illustrations
\n3. Introduction
\n3.1. Purpose
\n3.2. Scope
\n3.3. Introduction
\n4. Implementation
\n4.1 Organization
\n4.1.1. Opening the Counter Manifest System
\n4.1.2. Main Screen Organization
\n4.1.3. Menu Structure
\n4.2. General Functionality
\n4.2.1. Keyboard & Mouse Behavior
\n4.2.2. Sortable List Boxes
\n4.2.3. Find Package\/Transaction Dialogs
\n4.2.4. Find Manifest Dialogs
\n4.2.5. Find Dialog Search Behavior
\n4.3. Process Menu
\n4.3.1. Process Package
\n4.3.2. Find Package
\n4.3.3. Find Customer
\n4.3.4. Customer Address Dialog
\n4.3.5. Recipient Address Dialog<\/p>\n
4.3.6. Address Book Dialog
\n4.3.7. City\/State\/Postal Verification Dialog
\n4.3.8. Region Locator Dialog
\n4.3.9. Transaction Complete Dialog
\n4.3.10. Point of Sale (POS) Export Records
\n4.3.11. Enter ARS\/BIN Package
\n4.3.12. Process Consignee Billed
\n4.3.13. Freight Insurance
\n4.3.14. Reprint Last label
\n4.3.15. Reprint label
\n4.3.16. Edit Transaction
\n4.3.17. Void Transaction
\n4.3.18. Recall Voided Transaction
\n4.4. Estimate
\n4.4.1. Price a Package
\n4.4.2. Create Estimate
\n4.4.3. Edit Estimate
\n4.4.4. Delete Estimate
\n4.5. Manifest
\n4.5.1. Perform End of Day
\n4.5.2. Track a Package
\n4.5.3. View Manifests
\n4.5.4. View Transaction
\n4.5.5. Reprint Manifest
\n4.6. Reports
\n4.6.1. Manifest Reports
\n4.6.2. Rate Reports
\n4.6.3. Management Reports
\n4.7. Administration
\n4.7.1. Preferences
\n4.7.2. Center Information
\n4.7.3. Taxable Items
\n4.7.4. Scales and Printers
\n4.7.5. Modify Rates Dialog
\n4.7.6. Modify Rates for Zone Based Services
\n4.7.7. Modify Rates for Weight Based\/Single Zone Services
\n4.7.8. Modify FedEx Service Option Rates Dialog
\n4.7.9. Modify UPS Service Option Rates Dialog
\n4.7.10. Modify USPS Service Option Rates Dialog
\n4.7.11. Copy Rates
\n4.7.12. Alternate Insurance Rates
\n4.8. About
\n4.8.1. Rate Effective Dates
\n4.8.2. Version
\n5. Services and Services Options
\n5.1. Services<\/p>\n
5.1.1. UPS
\n5.1.2. FedEx
\n5.1.3. USPS
\n5.2 Service Options
\n5.2.1. Declared Value
\n5.2.2. Delivery Notification
\n5.2.3. Proof of Delivery
\n5.2.4. COD
\n5.2.5. Call Tag
\n5.2.6. Earliest Delivery Time
\n5.2.7. Deliver Without Signature
\n5.2.8. Certified Mail<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8113],"corporate_contracts_industries":[],"corporate_contracts_types":[9613,9619],"class_list":["post-42507","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-mail-boxes-etc","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\/42507","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=42507"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42507"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42507"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42507"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}