{"id":42524,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/marketing-agreement-cuc-international-inc-and-net-grocer-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"marketing-agreement-cuc-international-inc-and-net-grocer-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/marketing-agreement-cuc-international-inc-and-net-grocer-inc.html","title":{"rendered":"Marketing Agreement &#8211; CUC International Inc. and Net Grocer Inc."},"content":{"rendered":"<pre>\nCONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE\nCONFIDENTIAL PORTIONS HAVE BEEN REDACTED AND ARE DENOTED BY [*]. THE \nCONFIDENTIAL PORTIONS HAVE BEEN SEPARATELY FILED WITH THE SECURITIES AND\nEXCHANGE COMMISSION.\n\n                              MARKETING AGREEMENT\n\n         Marketing Agreement dated as of November 17, 1997 (the \"Agreement\"),\nbetween CUC International Inc., a Delaware corporation with principal offices\nat 707 Summer Street, Stamford, Conn. 06901 (\"CUC\"), and Net Grocer Inc., a\nDelaware corporation with principal offices at 919 Third Avenue, 18th floor,\nNew York, New York 10022 (\"NetGrocer\").\n\n         WHEREAS, NetGrocer operates an Internet-based service (the \"NetGrocer\nService\"), currently under the name \"NetGrocer\", which, among other things,\nprovides certain supermarket services to individuals, businesses and other\ngroups (all such users of NetGrocer, the \"NetGrocer Users\"), and which is\ncurrently located on the World Wide Web at the Uniform Resource Locator (\"URL\")\naddress identified as \"www.netgrocer.com\" (the \"NetGrocer Website\");\n\n         WHEREAS, CUC operates an Internet-based business under the name\n\"NetMarket\" (such business, \"NetMarket\"), which provides online,\nmembership-based consumer services, in areas such as travel, shopping, auto and\ndining, to its members as well as to other individuals, businesses and groups\n(all such users of NetMarket, whether or not they are members of NetMarket, the\n\"NetMarket Users\"), and which is currently located on the World Wide Web at the\nURL address identified as \"www.netmarket.com\" (the \"NetMarket Website\");\n\n         WHEREAS, NetGrocer desires to create, with the cooperation of\nNetMarket, a customized version of the NetGrocer Service, which would provide\nthe same general features as the NetGrocer Service but would be customized to\nmatch the style, layout, colors and general appearance of the NetMarket Website\n(the \"Customized NetGrocer Service\");\n\n         WHEREAS, NetMarket desires to establish a separate location within the\nNetMarket Website (the \"Customized NetGrocer Site\") in which the primary\nframe(s) of such location would display the Customized NetGrocer Service (which\nwould be linked on a real-time basis to NetGrocer's computer servers) and which\nwould offer access to the Customized NetGrocer Service to all NetMarket Users;\n\n         WHEREAS, NetGrocer desires to offer access from the NetGrocer Website\nto the NetMarket Website to all NetGrocer Users and to otherwise promote use of\nthe NetMarket Website;\n\n         WHEREAS, CUC desires to offer membership in NetMarket to NetGrocer\nUsers accessing the NetMarket Website from the NetGrocer Website (those\nNetGrocer Users who become members in NetMarket as a result of being linked to\nthe NetMarket Website from the NetGrocer Website pursuant to this Agreement are\nhereafter referred to as \"Members\"); and\n\n\n\n         WHEREAS, NetGrocer desires to offer products and services to all\nNetMarket Users accessing the Customized NetGrocer Service through the\nCustomized NetGrocer Site (those NetMarket Users who initially purchase\nproducts or services from NetGrocer as a result of accessing the Customized\nNetGrocer Service through the Customized NetGrocer Site, are hereafter referred\nto as \"Customized NetGrocer Customers\").\n\n         NOW, THEREFORE, in consideration of the mutual promises and covenants\ncontained in this Agreement, and intending to be legally bound hereby, CUC and\nNetGrocer agree as follows:\n\n1.       Responsibilities of NetGrocer.\n\n         (a) Placement of NetMarket Link. Commencing on or prior to December\n31, 1997, NetGrocer will feature an icon for NetMarket (the \"NetMarket Link\")\nthat shall include a hyperlink from the NetGrocer Website to either (i) a\ncustomized \"bridge\" page which is displayed on the NetGrocer Website but which\nis linked on a real-time basis to NetMarket's computer servers, that explains\nthe various features of NetMarket and then allows access to NetMarket, or (ii)\ncertain promotional Internet pages located on the NetMarket Website that\nexplain the various features of NetMarket and then provide access to NetMarket,\nin either case as determined by CUC in its reasonable discretion. The NetMarket\nLink shall be displayed on the \"home page\" of the NetGrocer Website (i.e., on\nthe primary, top level page of such NetGrocer Website) or on such other\nequivalent promotional location on the NetGrocer Website which has at least the\nsame traffic, exposure and prominence as such home page (such other equivalent\npromotional location, the \"Equivalent Space\"); in particular, the NetMarket\nLink will appear on the initial, viewable space of such home page or Equivalent\nSpace (also known as being placed \"above the fold\") so that persons viewing\nsuch home page or Equivalent Space do not have to scroll down such home page or\nEquivalent Space, or take any other similar action to move around such home\npage or Equivalent Space, in order to view such NetMarket Link when they\ninitially view such home page or Equivalent Space on their computer screen. The\nNetMarket Link shall contain a URL (or other similar means), to be provided by\nNetMarket, that shall contain a unique marker so that NetMarket can determine\nif a NetMarket User entered the NetMarket Website from the NetGrocer Website.\nCUC shall provide NetGrocer with a copy of the icon for the NetMarket Link\nwhich shall be initially in a Graphics Interchange Format (a \"GIF format\");\nNetGrocer shall display such icon so that it is at least as large as the icons\nor other similar images which are displayed on the NetGrocer Website for any\nother third party's services or for any NetGrocer services which are\nnon-retail-grocery in nature, but in no event smaller than 120 pixels by 40\npixels (or other comparable size measurement representing the same amount of\nspace). In addition to the placement of the NetMarket Link on its home page,\nNetGrocer shall take other reasonable steps to promote NetMarket on the\nNetGrocer Website, including, without limitation, (x) placing advertisements\nfor NetMarket on the NetGrocer Website in a prominent position in front of the\nNetGrocer User immediately after the time that a NetGrocer User submits an\norder to purchase a product or service through the NetGrocer Website\n\n                                      -2-\n\n\n(such advertisements, the \"Checkout Ads\"), and (y) placing occasional \"banner\"\nadvertisements, if available, relating to the NetMarket Website or other\nsimilar measures.\n\n         (b) Cooperation with respect to the Customized NetGrocer Site.\nNetGrocer shall cooperate with CUC in the creation of the Customized NetGrocer\nSite, including, without limitation, (i) creating and modifying, from time to\ntime as required, the Customized NetGrocer Service so that it has the same\ngeneral features as the NetGrocer Service (e.g., the same product categories,\nthe same product prices, quantities, brands, nutritional or health information,\ncharacteristics and visual images, the same sale terms and conditions, the same\ncustomer assistance features, etc.) but is customized to fit the style, layout,\ncolors and general appearance of the NetMarket Website; (ii) making such\nmodifications to the Customized NetGrocer Service as may from time to time be\nreasonably requested by CUC; (iii) establishing and maintaining the Customized\nNetGrocer Service on NetGrocer's computer servers and creating electronic links\nbetween NetMarket and NetGrocer so that NetMarket can obtain instant access to\nsuch Customized NetGrocer Service and is able to display the Customized\nNetGrocer Service on the Customized NetGrocer Site and provide the Customized\nNetGrocer Service to all NetMarket Users; (iv) creating electronic links\nbetween NetMarket and NetGrocer so that NetMarket can secure direct access to\nthe applicable NetGrocer database in order to obtain and use any information\nrelating to each purchase effected through the Customized NetGrocer Site (e.g.,\nthe dollar amount of each such purchase, the items acquired, the amount of any\nrebates or discounts granted with respect to each such purchase, the delivery\nstatus of each such purchase, the name, address, phone number and e-mail\naddress of each such purchaser, etc.) (such information, the \"Data\"), subject\nto the limitations set forth below in this Section 1(b); (v) processing and\nfulfilling all order(s) received by NetGrocer with respect to each person who\npurchases any NetGrocer products or services offered through the Customized\nNetGrocer Site; and (vi) treating each NetMarket User that utilizes the\nCustomized NetGrocer Site no less favorably than the manner in which NetGrocer\ngenerally treats each NetGrocer User. In connection with the provisions of\nSection 1(b)(iv) above, NetGrocer hereby grants CUC and its affiliates a\nnon-exclusive, worldwide, royalty-free license to use the Data for any purpose\nwhatsoever; provided that neither CUC nor any of its affiliates shall be\npermitted to sell or license the Data to any third party, or provide such Data\nto any of the suppliers of the Company, or use the Data to sell or provide any\nconsulting services to any third party which competes with the Company with\nrespect to the NetGrocer Services, in each case without the prior written\nconsent of NetGrocer (which consent may be withheld by NetGrocer in its sole\ndiscretion).\n\n         (c) Review of NetMarket Promotional Content. The parties acknowledge\nand agree that CUC will provide to NetGrocer, at NetGrocer's request and for\nNetGrocer's advance written approval (which approval shall not be unreasonably\nwithheld by NetGrocer), copies of the content and design of the NetMarket Link\nand the Checkout Ad and all listings, links and other uses of, or references\nto, NetMarket or the NetMarket trademark which are to be set forth on the\nNetGrocer Website or otherwise\n\n                                      -3-\n\n\nutilized by NetGrocer in connection with this Agreement (such NetMarket\nmaterials and all other such NetMarket content, designs, trademarks, trade\nnames, service marks, service names, copyrighted material, listings, links,\nuses, references and other information, the \"NetMarket Promotional Content\").\nIn the event that NetGrocer proposes to use any NetMarket Promotional Content\nwhich has not been developed by NetMarket or previously reviewed by NetMarket,\nNetGrocer shall provide to CUC copies of such NetMarket Promotional Content for\nCUC's advance written approval (which approval shall not be unreasonably\nwithheld by CUC). Notwithstanding anything to the contrary contained in this\nSection 1(c), other than with respect to the NetMarket Link, there shall be no\napproval requirement with respect to any NetMarket Promotional Content which is\nsubstantially similar to NetMarket Promotional Content which has been\npreviously-approved by CUC. NetGrocer acknowledges that CUC shall retain full\nrights and ownership over, and NetGrocer shall make no claim on, any and all\nNetMarket Promotional Content, even if such NetMarket Promotional Content was\ndeveloped in whole or in part by NetGrocer. Subject to the provisions of this\nAgreement (including, without limitation, the other provisions of this Section\n1(c)), during the term of this Agreement, CUC grants to NetGrocer a\nnon-exclusive, non-assignable, worldwide, royalty-free license to use the\nNetMarket Promotional Content in connection with the uses contemplated pursuant\nto this Agreement; provided that, unless otherwise agreed to in writing by CUC,\nno such permitted use shall (i) be of lower quality than the manner in which\nCUC uses generally the particular NetMarket Promotional Content in question;\n(ii) be harmful to the public image of CUC and its affiliates in any meaningful\nrespect; or (iii) violate in any material respect any of the express provisions\nof this Agreement.\n\n         (d) Responsibilities Relating to Customized NetGrocer Customers.\nNetGrocer shall: (i) bill for and collect from Customized NetGrocer Customers\nany amounts charged with respect to any products or services purchased by such\npersons by or through NetGrocer; (ii) maintain all customer and other records\npertaining to such persons; (iii) provide all NetGrocer products and services\nto such persons; and (iv) otherwise service such persons with respect to those\nmatters which relate to NetGrocer. NetGrocer agrees that in providing products\nor services to each Customized NetGrocer Customer, it shall: (x) provide such\nproducts and services in a manner consistent with the way in which such\nproducts or services were advertised or represented by NetGrocer to such\nCustomized NetGrocer Customer; (y) treat such Customized NetGrocer Customer\nfairly and in accordance with reasonable business practices; and (z) comply\nwith all applicable laws. Except upon the prior written consent of CUC,\nNetGrocer shall not make any representation or warranty to any Customized\nNetGrocer Customer or to any other party concerning NetMarket, CUC or any of\ntheir respective vendors, representatives or affiliates or concerning any of\ntheir respective products or services. Except as otherwise expressly provided\nin this Agreement and except with respect to the NetMarket Promotional Content\nand the actual operation of the Customized NetGrocer Site, NetGrocer shall have\ncomplete control over, and all rights and liabilities relating to, the content\nset forth on the NetGrocer Website, the content set forth on the Customized\nNetGrocer Site which is unique to the NetGrocer Service, the NetGrocer Service,\nthe Customized NetGrocer Service, the NetGrocer\n\n                                      -4-\n\n\nrelationship with the Customized NetGrocer Customers, and all NetGrocer-related\ninformation collected from the Customized NetGrocer Customers. Notwithstanding\nthe foregoing and notwithstanding anything to the contrary contained herein,\nthe parties agree that the Customized NetGrocer Site shall not sell or provide\nany non-grocery products or services which at any time compete with any of the\nproducts or services offered through the NetMarket Website (other than those\nnon-grocery products or services which are offered through the NetGrocer\nWebsite on the date hereof), unless NetGrocer obtains the prior written consent\nof CUC (which may be withheld by CUC in its sole discretion); provided that the\nforegoing limitation shall not restrict the ability of NetGrocer and its\naffiliates to offer any products or services (including non-grocery products or\nservices) through the NetGrocer Website or through any other Internet location\n(other than through the Customized NetGrocer Site).\n\n2.       Responsibilities of CUC.\n\n         (a) Creation of Customized NetGrocer Site. Commencing on or prior to\nDecember 31, 1997, NetMarket will: (x) create a link from the home page of the\nNetMarket Website to the Customized NetGrocer Site and cooperate with NetGrocer\nin the creation of the Customized NetGrocer Service and the Customized\nNetGrocer Site; and (y) feature an icon for the Customized NetGrocer Service\n(the \"Customized NetGrocer Link\") on the \"home page\" of its NetMarket Website\n(i.e., on the primary, top level page of such NetMarket Website), and on the\ninitial shopping page of the NetMarket Website, which in each case shall\ninclude a hyperlink to the Customized NetGrocer Site. Such Customized NetGrocer\nLink shall be placed in an area of the home page of the NetMarket Website so\nthat it has the same prominence as the icons identifying other services of\nNetMarket, such as the shopping, auto and travel services. Unless otherwise\nmutually agreed to by the parties, the Customized NetGrocer Link shall identify\nthe Customized NetGrocer Site as either the groceries page of the NetMarket\nWebsite or as \"NetGrocer,\" and once a NetMarket User has accessed the\nCustomized NetGrocer Site, the Customized NetGrocer Site shall be identified as\n\"NetGrocer\". NetMarket may create on the NetMarket Website such other links to\nthe Customized NetGrocer Site as NetMarket determines in its sole discretion.\nIn addition to the preceding provisions of this Section 2(a), NetMarket shall\ntake other reasonable steps to promote the Customized NetGrocer Site from time\nto time (e.g., placing occasional \"banner\" advertisements, if available,\nrelating to the Customized NetGrocer Site or other similar measures).\n\n         (b) Providing Access for NetGrocer Users to the NetMarket Website. CUC\nshall permit access to the NetMarket Website to all NetGrocer Users who wish to\nvisit the NetMarket Website and utilize NetMarket from the NetGrocer Website\n(including, without limitation, all NetGrocer Users who wish to enroll as\nMembers of NetMarket through NetGrocer and all NetGrocer Users who are already\nMembers and who wish to visit the NetMarket Website).\n\n         (c) Review of NetGrocer Promotional Content. With respect to any\nNetGrocer Promotional Content (as defined below) which is to be provided by\n\n                                      -5-\n\n\nNetGrocer to NetMarket pursuant to this Agreement, NetGrocer shall provide to\nNetMarket copies of the content and design of such NetGrocer Promotional\nContent, for NetMarket's advance written approval (which approval shall not be\nunreasonably withheld by NetMarket). In addition, in the event that NetMarket\nproposes to use any NetGrocer Promotional Content which has not been developed\nby NetGrocer or previously reviewed by NetGrocer, NetMarket shall provide to\nNetGrocer copies of such NetGrocer Promotional Content for NetGrocer's advance\nwritten approval (which approval shall not be unreasonably withheld by\nNetGrocer). Notwithstanding anything to the contrary contained in this Section\n2(c), other than with respect to the Customized NetGrocer Link, there shall be\nno approval requirement with respect to any NetGrocer Promotional Content which\nis substantially similar to NetGrocer Promotional Content which has been\npreviously-approved by NetGrocer. CUC acknowledges that NetGrocer shall retain\nfull rights and ownership over all NetGrocer Promotional Content, even if such\nNetGrocer Promotional Content was developed in whole or in part by NetMarket.\nFor purposes of this Agreement, the term \"NetGrocer Promotional Content\" shall\nmean all content and designs which are unique to NetGrocer or the NetGrocer\nService and all uses of, or references to, any NetGrocer trademarks, trade\nnames, service marks, service names or copyrighted material which are to be set\nforth on the NetMarket Website (including, without limitation, in connection\nwith the Customized NetGrocer Link) or the Customized NetGrocer Site or which\nare otherwise utilized by NetMarket in connection with this Agreement. Subject\nto the provisions of this Agreement (including, without limitation, the other\nprovisions of this Section 2(c)), during the term of this Agreement, NetGrocer\ngrants to CUC a non-exclusive, non-assignable, worldwide, royalty-free license\nto use the NetGrocer Promotional Content in connection with the uses\ncontemplated pursuant to this Agreement; provided that, unless otherwise agreed\nto in writing by NetGrocer, no such permitted use shall (i) be of lower quality\nthan the manner in which NetGrocer uses generally the particular NetGrocer\nPromotional Content in question; (ii) be harmful to the public image of\nNetGrocer and its affiliates in any meaningful respect; or (iii) violate in any\nmaterial respect any of the express provisions of this Agreement.\n\n         (d) Responsibilities Relating to Members. CUC shall: (i) bill for and\ncollect from NetMarket Users and Members any membership fee amounts owed to\nNetMarket as well as all other amounts charged with respect to any products or\nservices purchased by such persons through NetMarket; (ii) maintain all\nmembership and other records pertaining to such persons; (iii) provide all\nNetMarket products and services to such persons; and (iv) otherwise service\nsuch persons with respect to those matters which relate to NetMarket. CUC may,\nat its option, provide NetMarket Users who become Members with a user name and\npassword in order to access NetMarket and make use of NetMarket's benefits and\nin order to allow Network Users to use a credit card to make payment for\nmerchandise purchased through NetMarket. CUC agrees that in providing products\nor services to each Member, it shall: (x) provide such products and services in\na manner consistent with the way in which such products or services were\nadvertised or represented by NetGrocer to such Member; (y) treat such Member\nfairly and in accordance with reasonable business practices; and (z) comply\nwith all applicable laws. Except as otherwise expressly contemplated pursuant\nto this Agreement in\n\n                                      -6-\n\n\nconnection with the operation of the Customized NetGrocer Site, CUC shall not,\nwithout the prior written consent of NetGrocer, make any representation or\nwarranty to any Member or to any other party concerning NetGrocer or any of its\nvendors, representatives or affiliates or concerning any of their respective\nproducts or services (other than those which have already been expressly made\nby NetGrocer or any such vendors, representatives or affiliates). Except as\notherwise expressly provided in this Agreement and except with respect to the\nNetGrocer Promotional Content, CUC shall have complete control over, and all\nrights and liabilities relating to, the content set forth on the NetMarket\nWebsite, the content set forth on the Customized NetGrocer Site which is unique\nto NetMarket, the NetMarket service, the NetMarket relationship with the\nNetMarket Users and Members, and all NetMarket-related information collected\nfrom the NetMarket Users and Members.\n\n3.       Additional Arrangements.\n\n         (a) Optional Cross-Promotional Arrangements. NetGrocer and CUC shall,\nfrom time to time, discuss and consider various ways that NetMarket and\nNetGrocer might be able to cross-promote each other's products and services, to\nthe extent commercially feasible.\n\n         (b) NetMarket Products Made Available to NetGrocer. Subject to the\nmutual agreement of each of the parties as to the specific terms and conditions\nof each such arrangement, CUC shall permit NetGrocer to sell, through its\nNetGrocer Website, certain of the products which are offered for sale to\nNetMarket Users through the shopping area of the NetMarket Website (such\nproducts, the \"Wholesale NetMarket Products\"); provided that NetGrocer shall\nnot be permitted to sell such Wholesale NetMarket Products at prices which are\nbelow the prices which NetMarket charges at that time to the members of\nNetMarket. NetGrocer shall pay to CUC for such Wholesale NetMarket Products an\namount equal to the prices which NetMarket charges at that time to the members\nof NetMarket or such lower price as may be mutually agreed to by the parties.\n\n         (c) Further Assistance. Each party (such party, the \"Assisting Party\")\nshall, upon reasonable request by the other party (such other party, the\n\"Requesting Party\"), cooperate with, and use its reasonable efforts to assist,\nthe Requesting Party and its subsidiaries and affiliates with respect to the\nfulfillment of such Requesting Party's obligations hereunder and with respect\nto such other matters as may be reasonably contemplated pursuant to this\nAgreement; provided that the Requesting Party shall pay any actual\nout-of-pocket costs reasonably incurred by the Assisting Party with respect to\nits provision of any such assistance.\n\n         (d) Certain Customer Service Obligations. In the event that NetMarket\nreceives any customer service requests from a NetMarket User relating to the\nCustomized NetGrocer Service by phone or e-mail, it shall forward such requests\nto NetGrocer in a reasonably prompt manner (and in any event, shall use its\nreasonable\n\n                                      -7-\n\n\nefforts to forward such requests to NetGrocer within twenty-four hours of\nreceiving any such request).\n\n4.       Commissions Payable by NetMarket.\n\n         (a) Commission Payable by NetMarket Relating to Members. During the\nterm of this Agreement, CUC shall pay NetGrocer a commission equal to [*]\nof all Net Membership Revenue (as defined below) received by CUC after the \ndate of this Agreement from any NetGrocer User who becomes a Member\nof NetMarket as a result of initially accessing the NetMarket Website from the\nNetGrocer Website pursuant to this Agreement (such commission, the \"Membership\nCommission\"). CUC shall pay such Membership Commission amounts on a quarterly\nbasis to NetGrocer within twenty (20) days following the end of each calendar\nquarter. For purposes of this Agreement, the term \"Net Membership Revenue\"\nshall mean all membership fees received by CUC from NetGrocer Users who become\nMembers of NetMarket as a result of initially accessing the NetMarket Website\nfrom the NetGrocer Website (not inclusive of revenue from trial period\nmemberships), minus any credits, refunds, charge backs, discounts and rebates\nand minus any applicable sales, use, excise or similar taxes, in each case\npayable or incurred by CUC in respect of such membership fees.\n\n         (b) Reports to be Provided by CUC to NetGrocer. At the time that CUC\nmakes its quarterly payment to NetGrocer, CUC shall deliver to NetGrocer a\nreport showing: (i) the total number of NetGrocer Users who became Members\nduring the quarter in question; (ii) the total number of visits by NetGrocer\nUsers who, during the quarter in question, visited the NetMarket Website from\nthe NetGrocer Website; (iii) the total number of Members who ceased being\nMembers during the quarter in question; and (iv) the Membership Commission\namounts that are payable with respect thereto. In addition, within twenty (20)\ndays following the end of each month, CUC shall deliver to NetGrocer a report\nshowing the same information required to be provided in the quarterly report\nreferred to in the previous sentence as it pertains to the month in question.\nCUC shall also deliver to NetGrocer, upon NetGrocer's reasonable request, such\nother information relating to Members or NetGrocer Users visiting the NetMarket\nWebsite.\n\n5.       Commissions Payable by NetGrocer.\n\n         (a) Commission Payable by NetGrocer on NetMarket-User Revenues. During\nthe term of this Agreement, NetGrocer shall pay CUC a commission equal to [*]\nof all Net Transaction Revenue (as defined below) received by NetGrocer and \nits affiliates after the date of this Agreement (such commission, the \n\"Transaction Commission\"). NetGrocer shall pay such Transaction Commission\namounts on a quarterly basis to CUC within twenty (20) days following the end\nof each calendar quarter. For purposes of this Agreement, the term \"Net\nTransaction Revenue\" shall mean all revenues received by NetGrocer and its\naffiliates from any NetMarket User who purchases products or services either\n(x) through the Customized NetGrocer Site or (y) through NetGrocer as a result\nof initially registering on the NetGrocer Website\n\n                                      -8-\n\n\nfrom the NetMarket Website, minus in either such case any credits, refunds,\ncharge backs, discounts, rebates and shipping expenses and minus any applicable\nsales, use, excise or similar taxes, in each case payable or incurred by\nNetGrocer in respect of such revenues. The Transaction Commission shall apply\nto those Customized NetGrocer Customers who are both new and repeat customers\nof NetGrocer (including subsequent transactions that take place through the\nCustomized NetGrocer Site, the NetGrocer Website or otherwise); provided that,\nnotwithstanding the foregoing, NetGrocer shall not be obligated to pay\nTransaction Commissions of more than: (i) [*] per each Customized NetGrocer\nCustomer who was not a member of NetMarket at the time such person originally\nbecame a Customized NetGrocer Customer; and (ii) [*] per each Customized\nNetGrocer Customer who was a member of NetMarket at the time such person\noriginally became a Customized NetGrocer Customer; provided further that in the\ncase of any Customized NetGrocer Customer covered by clause (i) of this Section\n5(a) who subsequently becomes a member of NetMarket, NetGrocer shall not be\nobligated to pay Transaction Commissions with respect to such Customized\nNetGrocer Customer of more than the greater of (A) [*] or (B) [*]\n\n\n         (b) Reports to be Provided by NetGrocer to CUC. At the time that\nNetGrocer makes its quarterly payment to CUC, NetGrocer shall deliver to CUC a\nreport showing: (i) the total number of NetMarket Users who, during the quarter\nin question, purchased products or services through NetGrocer and its\naffiliates either (x) through the Customized NetGrocer Site or (y) through\nNetGrocer as a result of initially registering on the NetGrocer Website from\nthe NetMarket Website; (ii) the total number of visits by NetMarket Users who,\nduring the quarter in question, visited the Customized NetGrocer Site or the\nNetGrocer Website from the NetMarket Website, broken down between those persons\ncovered by clause (i) above and those not covered by such clause(i); (iii) the\namounts purchased by such NetMarket Users; and (iv) the Transaction Commission\namounts that are payable with respect thereto. In addition, within twenty (20)\ndays following the end of each month, NetGrocer shall deliver to CUC a report\nshowing the same information required to be provided in the quarterly report\nreferred to in the previous sentence as it pertains to the month in question.\nNetGrocer shall also deliver to CUC, upon CUC's reasonable request, such other\ninformation relating to Customized NetGrocer Customers or NetMarket Users\nvisiting the NetGrocer Website.\n\n6.       Other Payment Provisions.\n\n         (a) Rebates to NetMarket Members. During the term of this Agreement,\nNetGrocer shall pay to all members of NetMarket (including, without limitation,\nthe Members) a cash rebate on all amounts paid to NetGrocer by such members for\nany products or services purchased by such members through NetGrocer, which\ncash rebate shall be equal [*] of the net price (i.e., the price paid by such \ncustomer, excluding any shipping charges and sales tax amounts and after giving\neffect to any credits and discounts or any types of rebates (other than the \none referred to in this Section 6(a)) otherwise given at such time to such \ncustomer),\n\n                                      -9-\n\n\nnormally paid at such time by similar customers of NetGrocer (such cash rebate,\nthe \"NetGrocer Rebate\"). NetGrocer further agrees that, in order to give full\neffect to such NetGrocer Rebate, it shall not charge any members of NetMarket\n(including, without limitation, the Members) prices for any products or\nservices sold through NetGrocer which are higher than the normal retail\npurchase price charged at such time for such products or services (calculated\nprior to giving effect to the NetGrocer Rebate), and shall not charge such\npersons for any other amounts which are not, or deny such persons discounts or\ncredits or any other rebates which are, normally extended at such time to other\ncustomers of NetGrocer. NetGrocer agrees to pay such NetGrocer Rebate at the\ntime of each such purchase to the members of NetMarket in such form as\nNetMarket may reasonably specify, which form may include (x) transferring\nmonthly, within 20 days of the end of each month, the cash amount of each\nNetGrocer Rebate to NetMarket at such bank accounts as may be specified by\nNetMarket, so that such NetGrocer Rebate may be credited by NetMarket towards\nsuch member's account (whether in the form of \"netMarket cash\" or otherwise);\nor (y) the granting of a credit by NetGrocer against the purchase price to be\npaid by such member with respect to each such transaction. Notwithstanding the\nforegoing, NetGrocer shall not be obligated to pay a NetGrocer Rebate for any\nperson who ceases to be a member of NetMarket following the date on which such\nperson ceases to be a member of NetMarket. CUC may also grant members of\nNetMarket (including, without limitation, the Members) such other cash rebates\non the amounts paid to NetGrocer by such members for any products or services\npurchased by such members through NetGrocer; provided that in the event that\nNetGrocer incurs any out-of-pocket costs in connection with such other rebates\n(other than the NetGrocer Rebate), CUC shall reimburse NetGrocer on a monthly\nbasis, within 20 days following the end of each month.\n\n         (b) Acceptance of NetMarket Cash. NetGrocer agrees to accept, as\neither partial or full payment for any NetGrocer goods or services purchased by\na NetMarket User through the Customized NetGrocer Site, any credit given to\nsuch customer by NetMarket, whether in the form of \"netMarket cash\" or other\nsimilar form; provided that: (i) NetGrocer shall verify with NetMarket whether\nor not such customer is eligible to apply any such credit (whether in the form\nof \"netMarket cash\" or other similar form); (ii) NetMarket and NetGrocer shall\ncreate electronic links between NetMarket and NetGrocer so that NetGrocer can\nsecure direct access to the applicable NetMarket database in order to verify\nautomatically whether or not such customer is eligible to apply any such credit\n(whether in the form of \"netMarket cash\" or other similar form); and (iii)\nNetMarket shall reimburse NetGrocer, on a monthly basis, within 20 days\nfollowing the end of each month, for any such credits which are extended to\neligible NetMarket Users by NetGrocer pursuant to this sentence.\n\n         (c) Records; Audit Rights. Each party shall prepare and maintain, for\na period of at least one (1) year from the date in which the particular record\nin question was generated, adequate records relating to the obligations which\nmay be owed by such party pursuant to Sections 4, 5 and 6 of this Agreement,\nand each such party shall provide to the other party, at the other party's\noption and expense, such records as the other party may reasonably request from\ntime to time in connection therewith. Upon\n\n                                      -10-\n\n\nnot less than seven (7) business days' prior written notice to the other party,\nany party hereto may request that it be given access to and the right to\ninspect, during the other party's normal business hours, that portion of the\nother party's records which relates to the performance by such other party of\nits obligations under Sections 4, 5 and 6 of this Agreement; provided that the\nrequesting party: (i) must maintain the confidentiality of all non-public\ninformation reviewed by it; (ii) may not unreasonably interfere with the other\nparty's normal business operations in connection with any such review by the\nrequesting party; (iii) must reimburse the other party for any out-of-pocket\nexpenses reasonably incurred by the other party in connection with the\nprovisions of this sentence (subject to the provisions of this Section 6(c));\nand (iv) shall not be entitled to request more than twice per calendar year\naccess to the other party's records pursuant to this sentence. The requesting\nparty shall be solely responsible for the cost of any such audit, unless the\naudit finds a discrepancy of more than ten percent (10%) in the amount that\nshould have been paid by the non-requesting party during the periods in\nquestion, in which case the non-requesting party shall (x) pay for the\nreasonable costs incurred by the requesting party in connection with such\naudit, and (y) not be entitled to reimbursement pursuant to the provisions of\nSection 6(c)(iii) above.\n\n         (d) No Other Commissions, etc. Payable. Except for the commissions and\nother amounts payable pursuant to Sections 4, 5 and 6 of this Agreement, any\npayments for products purchased pursuant to Section 3(b) above, any\nindemnification amounts owed pursuant to Section 12 below and the cost\nreimbursement and other similar provisions expressly set forth in this\nAgreement, there shall be no commission or other amounts owed by any party\nhereto to the other party hereto (except as otherwise expressly agreed to in\nwriting by the parties).\n\n7.       Term and Termination.\n\n         (a) Initial Term; Renewal. The initial term of this Agreement shall\ncommence on the date hereof and shall terminate on the second anniversary of\nthe date hereof, unless terminated earlier pursuant to the provisions of\nSection 7(b) hereof. Notwithstanding the provisions of the previous sentence,\nthe term of this Agreement shall, subject to the provisions of Section 7(b)\nhereof, automatically renew for an additional one-year period after the second\nanniversary of the date hereof and shall automatically renew for successive one\n(1) year periods for each year thereafter, unless in any such case either party\ngives the other party written notice of its intention not to so renew no later\nthan ninety (90) days prior to the commencement of any such renewal term.\n\n         (b) Termination. Either party may terminate this Agreement at any\ntime: (i) upon sixty (60) days' written notice upon the material breach by\nanother party of any of the provisions hereof; or (ii) immediately upon the\ncommencement of a voluntary or involuntary bankruptcy, insolvency,\nreorganization or similar proceeding for, the appointment of a receiver,\ntrustee, custodian, or similar official for, the winding-up or liquidation of,\nor the sale or transfer (other than to a wholly-owned subsidiary of such\n\n                                      -11-\n\n\nparty) or all or substantially all of the assets of, another party; provided\nthat any notice of proposed termination pursuant to clause (i) of this Section\n7(b) must set forth in reasonable detail the nature of the breach which is\nbeing alleged, and the party receiving such notice shall have thirty (30) days\nfrom the date of its receipt of such notice to cure or remedy the alleged\nbreach, and upon such cure or remedy the notice of proposed termination shall\nbe deemed to be withdrawn and this Agreement shall continue in full force and\neffect.\n\n         (c) Survival of Obligations. Upon any termination of this Agreement in\naccordance with the provisions of this Section 7, all obligations of the\nparties hereto shall terminate without any liability on the part of any party\nhereto to the other party (except for any liability of any party then in\nbreach); provided that any continuing obligations or provisions set forth in\nSections 9 through 13 of this Agreement shall survive any such termination;\nprovided further that in the event of any termination pursuant to this Section\n7, each party shall pay the other party, within thirty (30) days following the\ndate of such termination, all amounts otherwise owed to the other party\npursuant to this Agreement as of the date of such termination, and there shall\nbe no further payment obligations owed pursuant to Sections 4, 5 or 6 of this\nAgreement from the date of such termination forward. No termination by any\nparty hereto shall affect or limit any other right or remedy, at law or in\nequity, which may otherwise be available to such terminating party with respect\nto any other party which is then in breach. No termination or expiration of\nthis Agreement shall affect CUC's right, at its sole option, to extend or\nrenew, after the termination or expiration of this Agreement, the NetMarket\nmembership of any NetGrocer User who is a Member, which right shall continue\nuntil the membership is canceled by either the Member or CUC.\n\n8.       Representations, Warranties and Covenants.\n\n         (a) Representations, Warranties and Covenants of CUC. CUC represents,\nwarrants and covenants that:\n\n              (i) CUC is a corporation duly organized and validly existing\nunder the laws of the State of Delaware and has all requisite power and\nauthority to execute and deliver, and to perform all of its obligations under,\nthis Agreement.\n\n              (ii) This Agreement constitutes the legal, valid and binding\nobligation of CUC, enforceable against it in accordance with its terms, except\nas such may be limited by applicable bankruptcy, insolvency, reorganization,\nmoratorium or other similar laws affecting the enforcement of creditors' rights\ngenerally and except as may be limited by general principles of equity.\n\n              (iii) The execution and delivery of, and the performance of its\nobligations under, this Agreement by CUC do not and will not (A) violate any\nlaw, rule, regulation, order, writ, judgment, injunction, decree, determination\nor award presently in effect having applicability to CUC as currently\ninterpreted and enforced, (B) with or without the giving of notice or the\npassage of time or both, result in a breach or constitute a\n\n                                      -12-\n\n\ndefault under any material agreement to which CUC is a party or by which it is\nbound, or (C) require any authorizations, consents, approvals, licenses,\nexemption or filings with any third party or governmental authority.\n\n              (iv) No part of the NetMarket Promotional Content, no operational\naspect of NetMarket, no content or design set forth on the NetMarket Website,\nand, to the knowledge of CUC, no product or service to be furnished by\nNetMarket through the NetMarket Website, does or will (A) infringe on or\nviolate in any material respect any patent, copyright, trade secret, trademark,\nservice mark or other proprietary right of any other party, (B) libel, defame\nor improperly invade in any material respect the privacy of another party, or\n(C) violate in any material respect any applicable law. NetMarket shall not,\nwith actual knowledge, directly link the NetMarket Website to another website\nif such other website engages in any of the activities set forth in clauses (A)\nthrough (C) of the previous sentence.\n\n              (v) CUC has the right to grant to NetGrocer the rights to the\nNetMarket Promotional Content which are set forth in this Agreement.\n\n         (b) Representations, Warranties and Covenants of NetGrocer. NetGrocer\nrepresents, warrants and covenants that:\n\n              (i) NetGrocer is a corporation duly organized and validly\nexisting under the laws of the State of Delaware and has all requisite power\nand authority to execute and deliver, and to perform all of its obligations\nunder, this Agreement.\n\n              (ii) This Agreement constitutes the legal, valid and binding\nobligation of NetGrocer, enforceable against it in accordance with its terms,\nexcept as such may be limited by applicable bankruptcy, insolvency,\nreorganization, moratorium or other similar laws affecting the enforcement of\ncreditors' rights generally and except as may be limited by general principles\nof equity.\n\n              (iii) The execution and delivery of, and the performance of its\nobligations under, this Agreement by NetGrocer do not and will not (A) violate\nany law, rule, regulation, order, writ, judgment, injunction, decree,\ndetermination or award presently in effect having applicability to NetGrocer,\nas currently interpreted and enforced, (B) with or without the giving of notice\nor the passage of time or both, result in a breach or constitute a default\nunder any material agreement to which NetGrocer is a party or by which it is\nbound, or (C) require any authorizations, consents, approvals, licenses,\nexemption or filings with any third party or governmental authority.\n\n              (iv) No part of the NetGrocer Promotional Content, no operational\naspect of the NetGrocer Service, no content or design set forth or to be set\nforth on the Customized NetGrocer Site or the NetGrocer Website, and, to the\nknowledge of NetGrocer, no product or service to be furnished by NetGrocer\nthrough the Customized NetGrocer Site or the NetGrocer Website, does or will\n(A) infringe on or violate in any material respect any patent, copyright, trade\nsecret, trademark, service mark or other\n\n                                      -13-\n\n\nproprietary right of any other party, (B) libel, defame or improperly invade in\nany material respect the privacy of another party, or (C) violate in any\nmaterial respect any applicable law. NetGrocer shall not, with actual\nknowledge, directly link the NetGrocer Website to another website if such other\nwebsite engages in any of the activities set forth in clauses (A) through (C)\nof the previous sentence.\n\n              (v) NetGrocer has the right to grant to CUC the rights to the\nNetGrocer Promotional Content which are set forth in this Agreement.\n\n9. Disclaimers. EACH PARTY HERETO ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE\nEXPRESSLY SET FORTH IN THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, THE\nREPRESENTATIONS, WARRANTIES AND COVENANTS SET FORTH IN SECTION 8 ABOVE), NO\nPARTY HERETO IS MAKING, AND EACH PARTY HEREBY EXPRESSLY DISCLAIMS, ANY OTHER\nREPRESENTATION OR WARRANTY, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE\nSUBJECT MATTER OF THIS AGREEMENT. In addition, except for those uses\ncontemplated pursuant to this Agreement (which uses shall cease promptly\nfollowing the termination of this Agreement), neither party will make any use\nof, or make any claims with respect to, any patents, copyrights, trademarks,\ntrade names, service marks, logos, domain names, inventions, know-how, trade\nsecrets, computer software or other similar property owned, licensed to or used\nby the other party, without obtaining the other party's prior written consent.\n\n10.      Confidentiality.\n\n         (a) Confidential Treatment of Information Provided. Either party which\nreceives Confidential Information (as defined below) from the other party\nhereto (such receiving party, as the case may be, the \"Receiving Party\", and\nsuch disclosing party, as the case may be, the \"Disclosing Party\") shall\nreceive and maintain such Confidential Information in confidence. For purposes\nof this Agreement, the term \"Confidential Information\" shall mean all\ninformation received from the Disclosing Party or any of its affiliates or\nrepresentatives (including, without limitation, any know-how, trade secret,\nprocess, confidential or proprietary report or information or other form of\ninformation relating to the Disclosing Party's or its affiliates' business),\nwhether in written, oral, encoded, graphic, magnetic, electronic or in any\nother tangible or intangible form, and whether or not labeled as confidential\nor otherwise provided hereunder; provided that the term \"Confidential\nInformation\" shall not include any information that: (i) is or becomes\ngenerally available to the public, other than as a result of a breach by the\nReceiving Party or its affiliates or representatives of this Section 10(a);\n(ii) was known by the Receiving Party or its representatives prior to the date\nof this Agreement (except for any information provided to it by the other party\nin contemplation of this Agreement); (iii) becomes available to the Receiving\nParty or its representatives on a nonconfidential basis from a third party who\nis not bound by any confidentiality obligation to the Disclosing Party or its\nsubsidiaries or affiliates; or (iv) was independently developed by either\nparty's employees or agents (so long as such party's employees or agents had no\naccess to or benefit of any of the information in\n\n                                      -14-\n\n\nquestion). The Receiving Party further agrees not to use, disclose, reproduce\nor dispose of any Confidential Information in any manner except as expressly\npermitted by this Agreement. The Receiving Party agrees to restrict disclosure\nof any Confidential Information solely to its employees, accountants and other\nsimilar representatives who have a need to know and to advise such persons of\ntheir obligations of confidentiality and non-disclosure hereunder. Further, the\nReceiving Party shall not disclose any Confidential Information to third\nparties, including independent contractors or consultants, without the prior\nexpress written consent of the Disclosing Party and shall advise such third\nparties, in the event of such consent, of their obligations of confidentiality\nand non-disclosure hereunder. The Receiving Party agrees to use reasonable\nmeans, not less than those used to protect its own proprietary information, to\nsafeguard such Confidential Information. Notwithstanding the foregoing, it\nshall not be a breach of this Agreement for either party to disclose\nConfidential Information of the other party if (x) compelled to do so under\nlaw, whether pursuant to a judicial or governmental investigation or proceeding\nor otherwise, provided that the Disclosing Party has been given reasonable\nprior notice and the opportunity, if reasonably practicable, to try to prevent\nor limit such disclosure through a court order or other appropriate legal\nmeans, or (y) necessary in any legal proceedings based upon the provisions and\nterms of this Agreement, provided that the Disclosing Party uses its reasonable\nefforts to try to prevent or limit such disclosure.\n\n         (b) Confidential Nature of this Agreement. Each party hereto\nacknowledges and agrees that the nature and terms of this Agreement are\nstrictly confidential and shall not be disclosed by it or any of its affiliates\nor representatives at any time to any third party without the prior written\nconsent of the other party hereto, except (i) to inform employees and\nrepresentatives of such party who have a \"need to know\" and who understand the\nconfidential nature of this Agreement; (ii) as necessary in any legal\nproceedings based upon the provisions and terms of this Agreement; (iii)\npursuant to court order, subpoena or mandatory discovery request after notice\nto the other party hereto; (iv) to any legal counsel or accounting firm\nretained by such party; (v) in any public reporting documents (provided that\nthe disclosing party shall (x) only disclose such portion of this Agreement as\nshall be specifically required by statute or governmental rule or regulation,\nas advised in writing by legal counsel, and (y) use its best efforts to\npreserve the confidentiality of the information being disclosed (including,\nwithout limitation, using its best efforts in seeking confidential treatment\npursuant to the provisions of Rule 406 under the Securities Act of 1933, as\namended, or any other parallel or successor provision, and cooperating with the\nother party hereto in connection therewith)); or (vi) to the extent reasonably\nnecessary in connection with the preparation of any tax, legal, accounting or\nclaim documentation.\n\n         (c) Irreparable Injury; Survival of Provisions. Each Receiving Party\nrecognizes that its disclosure of information in violation of this Section 10\nwill give rise to irreparable injury to the Disclosing Party, inadequately\ncompensable in damages, and that, accordingly, agrees that the Disclosing Party\nmay seek and obtain injunctive relief against the breach of the within\nundertakings, in addition to any other legal remedies\n\n                                      -15-\n\n\nwhich may be available. Each party's duty of confidentiality under this Section\n10 shall survive the termination of this Agreement.\n\n11. Expenses. Except as otherwise expressly set forth in this Agreement, all\ncosts and expenses, including all fees and expenses of attorneys, accountants\nand other advisers, incurred in connection with this Agreement or any matters\nrelated hereto, shall be paid by the party incurring such costs and expenses.\n\n12.      Indemnification.\n\n         (a) CUC's Indemnification Obligations. From and after the date hereof,\nand without limiting any other remedy available to such party, CUC shall\nindemnify and hold NetGrocer and its partners, directors, officers, employees,\nagents, subsidiaries, parents and affiliates (each a \"NetGrocer Protected\nParty\") harmless from and against any and all claims, actions, suits, damages,\nlosses, deficiencies, liabilities, obligations, commitments, costs or expenses\nof any kind or nature (including reasonable legal and other fees and expenses\nincurred in investigating and defending against the same, and interest)\n(\"Reimbursable Amounts\") incurred by such NetGrocer Protected Party resulting\nfrom: (i) any breach of the representations, warranties, covenants, agreements\nand obligations of CUC hereunder; (ii) any negligence or willful misconduct of\nCUC or its directors, officers, employees, agents, subsidiaries, parents and\naffiliates in connection with either the operation of NetMarket or the\nprovision of services pursuant to this Agreement; or (iii) the sale or\nprovision by NetMarket or any of its vendors, representatives or affiliates of\nany products or services to any Member.\n\n         (b) NetGrocer's Indemnification Obligations. From and after the date\nhereof, and without limiting any other remedy available to such party,\nNetGrocer shall indemnify and hold CUC and its directors, officers, employees,\nagents, subsidiaries, parents and affiliates (each a \"CUC Protected Party\")\nharmless from and against any and all Reimbursable Amounts incurred by such CUC\nProtected Party resulting from: (i) any breach of the representations,\nwarranties, covenants, agreements and obligations of NetGrocer hereunder; (ii)\nany negligence or willful misconduct of NetGrocer or its partners, officers,\nemployees, agents, subsidiaries, parents and affiliates in connection with\neither the operation of NetGrocer or the provision of services pursuant to this\nAgreement; or (iii) the sale or provision by NetGrocer or any of its vendors,\nrepresentatives or affiliates of any products or services to any Customized\nNetGrocer Customer.\n\n         (c) Indemnification Procedures. The party seeking indemnification (the\n\"Indemnified Party\") shall notify the other party (the \"Indemnifying Party\")\npromptly of any legal claim, demand, right or cause of action asserted,\ninstituted or threatened against the Indemnified Party (a \"Claim\") for which\nthe Indemnified Party is seeking indemnification pursuant to this Section 12.\nThe Indemnifying Party may thereafter assume control of such Claim, but neither\nthe Indemnifying Party nor the Indemnified Party may settle such Claim or\nconsent to any judgment with respect thereto without the consent of the other\nparty thereto (which consent may not be unreasonably\n\n                                      -16-\n\n\nwithheld); provided that the provisions of this sentence shall not apply to any\nClaim which both (x) involves amounts or claimed amounts of less than $25,000,\nand (y) does not involve a claim of infringement on another party's\nintellectual property rights. The Indemnified Party agrees to provide the\nIndemnifying Party with a reasonable amount of assistance in connection with\ndefending or settling any such Claim. The provisions of this Section 12 shall\nsurvive the termination of this Agreement.\n\n13.      Miscellaneous.\n\n         (a) Arbitration. Any controversies, disputes, actions, causes of\naction, or other claims arising out of or in connection with the provisions of\nthis Agreement which cannot be settled by mutual agreement shall be finally\nsettled by arbitration in New York, New York in accordance with the Commercial\nArbitration Rules of the American Arbitration Association. The arbitrator may\nenter a default decision against any party who fails to participate in the\narbitration proceedings. The decision of the arbitrator on the points in\ndispute will be final, unappealable and binding and judgment on the award may\nbe entered in any court having jurisdiction thereof. So long as this Agreement\nhas not previously been terminated, the parties shall continue their\nperformance under this Agreement while the arbitration proceeding is pending.\nThe arbitrator will be authorized to apportion its fees and expenses and the\nreasonable attorney's fees and expenses of the parties hereto as the arbitrator\ndeems appropriate. In the absence of any such apportionment, the fees and\nexpense of the arbitrator will be borne equally by each party, and each party\nwill bear the fees and expenses of its own attorney. The parties agree that\nthis clause has been included to rapidly and inexpensively resolve any disputes\nbetween them with respect to this Agreement, and that this clause shall be\ngrounds for dismissal of any court action commenced by either party with\nrespect to this Agreement, other than post-arbitration actions seeking to\nenforce an arbitration award and actions seeking equitable, injunctive or other\nsimilar relief.\n\n         (b) Relationship of Parties. It is understood and agreed that the\nrelationship of the parties created under this Agreement is that of independent\ncontractors, and no partnership, joint venture, agency or other relationship is\nintended or created hereby, nor shall either party nor any of it affiliates,\nemployees or representatives be construed to be an affiliate, employee, agent\nor representative of the other party hereto. Except as otherwise expressly\nprovided in this Agreement, the parties hereto acknowledge and agree that each\nparty hereto shall be free to enter into any contractual, business or other\nrelationship(s) with any party with respect to any area of business.\n\n         (c) Force Majeure. Notwithstanding any other provision of this\nAgreement to the contrary, in the event any party hereto is prevented from\nperforming its obligations hereunder (such party, a \"Nonperforming Party\") as a\nresult of any contingency which is beyond the control of such party (such as\nany act of God, war, riot, national emergency, terrorist act, general embargo,\nfire, casualty, equipment failure, flood, earthquake or other similar\noccurrence) (any such event, a \"Force Majeure Event\"), such Nonperforming Party\nshall be excused from its inability to perform its\n\n                                      -17-\n\n\nobligations hereunder, but only to the extent and for the duration of the Force\nMajeure Event in question. The Nonperforming Party will give the other party\nreasonably prompt notice of the occurrence of such Force Majeure Event. Upon\nthe occurrence of such Force Majeure Event, the Nonperforming Party may delay\nperformance hereunder, but only for so long as may be reasonably necessary in\nlight of such Force Majeure Event, and shall resume performance hereunder as\nsoon as reasonably practicable following the date of such occurrence.\n\n         (d) Notices. Any notice or communication required or permitted\nhereunder shall be in writing and either delivered personally, telecopied or\nsent by overnight courier, or by certified or registered mail, postage prepaid,\nand shall be deemed to be given, dated and received when so delivered\npersonally or by courier or telecopied, or, if mailed, five business days after\nthe date of mailing, to the following address or telecopy number, or to such\nother address or addresses as such person may subsequently designate by notice\ngiven hereunder:\n\n                  (i)      if to CUC, to:\n\n                           CUC International Inc.\n                           707 Summer Street\n                           Stamford, Connecticut  06901\n                           Telephone:  (203) 324-9261\n                           Facsimile:  (203) 348-1982\n                           Attention:  Amy N. Lipton, Esq.\n\n                  (ii)     if to NetGrocer, to:\n\n                           NetGrocer, Inc.\n                           919 Third Avenue, 18th floor\n                           New York, New York 10022\n                           Telephone:  (212) 980-4770\n                           Facsimile:  (212) 980-3899\n                           Attention:  Daniel Nissan\n\n                           with a copy to:\n\n                           Fulbright &amp; Jaworski L.L.P.\n                           666 Fifth Avenue\n                           New York, New York  10103\n                           Telephone:  (212) 318-3000\n                           Facsimile:  (212) 752-5958\n                           Attention:  Sheldon G. Nussbaum\n\n         (e) Entire Agreement; Amendment; Waiver; Invalidity. This Agreement,\ntogether with any schedules and exhibits attached hereto and made a part\nhereof, constitutes the entire agreement between the parties as to the subject\nmatter hereof,\n\n                                      -18-\n\n\nand shall supersede all prior understandings, letters, agreements, contracts\nand other documents. This Agreement may not be amended except by an instrument\nin writing signed on behalf of all of the parties hereto. No failure or delay\nby either party to exercise, and no course of dealing with respect to, any\nright of any such party regarding an obligation of the other party to this\nAgreement, shall operate as a waiver thereof, unless agreed to in writing by\nboth parties. Any single or partial waiver by either party of any obligation of\nthe other party under this Agreement shall constitute a waiver of such\nobligation only as specified in such waiver and shall not constitute a waiver\nof any other obligation. The invalidity or unenforceability of any provision of\nthis Agreement shall not affect the validity or enforceability of any other\nprovisions of this Agreement, all of which shall remain in full force and\neffect.\n\n         (f) Governing Law; Construction. This Agreement shall be governed by\nand construed in accordance with the laws of the State of New York, without\ngiving effect to the principles of conflicts of laws thereof. The construction\nand interpretation of this Agreement shall not be strictly construed against\nthe drafter.\n\n         (g) Successors and Assigns; No Third Party Beneficiaries; Assignment.\nThis Agreement shall be binding upon and inure to the benefit of the parties\nhereto and their respective successors, permitted assigns and legal\nrepresentatives. Nothing in this Agreement is intended to confer any rights or\nremedies on any person or entity which is not a party to this Agreement.\nNeither this Agreement nor any right hereunder may be assigned, whether\nvoluntarily or by operation of law, by either party hereto without the prior\nwritten consent of the other party hereto (which consent may not be\nunreasonably withheld); provided that no such consent shall be necessary for\nsuch an assignment, transfer or delegation by any party hereto to any of its\nwholly-owned subsidiaries, so long as such assigning party remains liable with\nrespect to its obligations hereunder. No delegation by CUC or NetGrocer of any\nof their respective duties hereunder shall be deemed an assignment of this\nAgreement.\n\n         (h) Counterparts. This Agreement may be executed by the parties hereto\nin separate counterparts, each of which when so executed and delivered shall be\nan original, but all such counterparts shall together constitute one and the\nsame instrument. Each counterpart may consist of a number of copies hereof each\nsigned by less than all, but together signed by all of the parties hereto.\n\n                                      -19-\n\n\n         (i) Headings. The headings in this Agreement are for reference only,\nand shall not affect the interpretation of this Agreement.\n\n         IN WITNESS WHEREOF, this Agreement has been duly executed and\ndelivered on behalf of each of the parties hereto as of the date first above\nwritten.\n\n\n                                            CUC INTERNATIONAL INC.\n\n                                            By:\/s\/ Cosmo Corigliano\n                                               -------------------------------\n                                               Name: Cosmo Corigliano\n                                               Title: Senior Vice President\n\n\n\n                                            NET GROCER INC.\n\n                                            By: \/s\/ Daniel Nissan\n                                               -------------------------------\n                                               Name: Daniel Nissan\n                                               Title: President &amp; CEO\n\n                                      -20-\n\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7044],"corporate_contracts_industries":[],"corporate_contracts_types":[9613,9619],"class_list":["post-42524","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-cendant-corp","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\/42524","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=42524"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42524"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42524"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42524"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}