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Exhibit 10.27
WEB SITE AGREEMENT
THIS AGREEMENT ("AGREEMENT"), dated as of January 31, 2001 (the
"EFFECTIVE DATE"), is made by and between Textbooks.com Inc., a Delaware
corporation having an office located at 120 Fifth Avenue, New York, New York
10011 ("TEXTBOOKS"), and barnesandnoble.com llc, a Delaware limited liability
company with an office located at 76 Ninth Avenue, 11th floor, New York, New
York 10011 ("LLC"). Textbooks and LLC are sometimes referred to herein
individually as a "PARTY" and collectively as the "PARTIES."
RECITALS
WHEREAS, from, on or about August 14, 2000 through the date hereof, the
Parties have implemented a test period (the "TEST PERIOD") whereby LLC's
principal Web site located at the URL WWW.BN.COM (the "BN WEB SITE") has
contained a subsite selling textbooks (the "SUBSITE"); and
WHEREAS, having completed the Test Period, the Parties wish, among
other things, to provide for their respective rights and obligations with regard
to the design and implementation of the Subsite and for the operations of the
Subsite during the term of this Agreement (the "TERM").
NOW, THEREFORE in consideration of the premises and the mutual promises
and agreements herein contained and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the Parties hereby
agree as follows:
1. OPERATION OF THE SUBSITE. (a) From and after the date hereof, LLC
shall be responsible for, and shall pay all costs with respect to, the
operation, servicing and maintenance of the Subsite, including, but not limited
to, (i) operation of the Subsite and related equipment, (ii) processing and
fulfillment of orders placed on the Subsite, (iii) management, ownership,
sourcing and pricing of inventory for the Subsite, (iv) tracking the volume and
amount of sales and returns generated on the Subsite, and providing such
information to Textbooks on a monthly basis, and (v) order entry, billing,
payment processing, shipping, cancellations, returns, and related customer
service for users of the Subsite.
(b) It is the intention of the Parties that all sales of
textbooks shall be made in the name and on behalf of LLC without reference to
Textbooks. Textbooks agrees that during the Term it will not, directly or
indirectly, operate a Web Site for the retail sale of textbooks other than any
such site(s) that refer all such sales (through links) to the Subsite. The
Parties agree that neither Party shall have an obligation to share any customer
information collected by such Party in performing its obligations hereunder
whether during the Term or upon termination of this Agreement.
(c) Textbooks shall make available to LLC (without cost or
other charge) such software, hardware database of textbooks available to
Textbooks and other items that have been procured to date by Textbooks that are
necessary to maintain and operate the Subsite in accordance with this Agreement,
other than those already furnished to LLC during the Test Period.
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2. CONSENT TO USE OF BARNES & NOBLE TRADEMARKS. Barnes & Noble College
Bookstores, Inc. ("COLLEGE") and Textbooks hereby consent to the use by LLC
during the Term of the trademarks "Barnes & Noble" and "barnesandnoble.com" to
the limited extent that such use is necessary to the operation of the Subsite in
accordance with the terms of this Agreement and, solely in connection with such
use, waives any violation by LLC of that certain Amended and Restated Trademark
License Agreement, dated as of October 31, 1998, among College, LLC and
barnesandnoble.com inc., as amended by Amendment No. 1, dated as of May 28,
1999, between College and LLC. In consideration of the payments referred to in
Section 4 below, College and Textbooks hereby waive and release LLC from any
claim with respect to the sale of textbooks by LLC prior to January 1, 2000.
3. LICENSE OF TEXTBOOKS TRADENAME AND LOGOS. Textbooks hereby grants to
LLC a non-exclusive, non-transferable, limited license to reproduce and display
the Textbooks logos provided by Textbooks to LLC and to use the "textbooks.com"
trade name and URL in connection with the operation of the Subsite. For the
purposes of protecting such marks and logos, any such use shall be subject to
the consent of Textbooks, which shall not be unreasonably withheld or delayed.
The foregoing license shall terminate upon the expiration or termination of this
Agreement.
4. PAYMENT OF ROYALTIES BY LLC TO TEXTBOOKS. LLC shall pay to Textbooks
a royalty equal to seven and one-half percent (7.5%) of the gross revenues (less
returns and applicable sales taxes, if any) realized by LLC (excluding shipping
and handling) from the sale of Books Designated as Textbooks (as defined below)
from and after January 1, 2000. Such royalty payments shall be made on a monthly
basis and shall be paid in arrears within fifteen (15) days following the end of
each month; PROVIDED that all royalties payable for the period between January
1, 2000 and January 31, 2001 shall be paid within fifteen (15) days following
the date of execution of this Agreement. As used herein, the term "BOOKS
DESIGNATED AS TEXTBOOKS" shall refer to books identified by their ISBN numbers
as "textbooks" in the MBS Textbook Exchange, Inc. ("MBS") database, or such
other publicly available database if the MBS database is not so available.
Textbooks, and its accountants and representatives, shall have the right to
examine, copy and audit the books and records of LLC to ensure compliance with
terms of this Agreement. If any such audit reveals an underpayment of more than
five percent (5%), the cost of such audit shall be borne by LLC.
5. TERMINATION. (a) This Agreement shall be for a term of five (5)
years, and thereafter shall renew annually for additional one (1) year terms
unless either party notifies the other in writing of its desire to terminate
this Agreement as of the end of the then current term, such notice to be
received at least twelve (12) months prior to the end of such term.
(b) Either Party may terminate this Agreement at any time
upon: (i) the occurrence of a material breach by the other Party of the
provisions of this Agreement if such breach is not cured within thirty (30)
days' after written notice is received by the breaching Party identifying the
matter constituting the material breach; or (ii) twelve (12) months prior
written notice.
(c) Upon the termination of this Agreement in accordance with
Sections 5(a) or 5(b) above, all rights and obligations of the Parties hereunder
shall cease, and each party shall
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be deemed to be in the same relative position to the other Party as if this
Agreement had never been given force and effect. Notwithstanding the foregoing
sentence, the liability of LLC for any accrued and unpaid royalty payments under
Section 5 shall survive termination of this Agreement.
6. ASSIGNMENTS. Neither Party may assign this Agreement or any rights
or obligations hereunder without the prior written consent of the other Party.
7. MODIFICATION AND WAIVER. No amendment, modification or alteration of
the terms or provisions of this Agreement shall be binding unless the same shall
be in writing and duly executed by the Parties, except that any of the terms or
provisions of this Agreement may be waived in writing at any time by the Party
which is entitled to the benefits of such waived terms or provisions. No waiver
of any of the provisions of this Agreement shall be deemed to or shall
constitute a waiver of any other provision hereof (whether or not similar). No
delay on the part of any party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof.
8. NOTICES. Any and all notices or other communications hereunder shall
be given in writing and shall be deemed to have been duly given (a) upon receipt
if delivery is in person, by electronic facsimile transmission (provided a copy
is concurrently mailed in accordance with Section 8(b) below), or by overnight
courier, and (b) three days after mailing if delivery is by certified or
registered mail, return receipt requested postage prepaid, in each case
addressed to a Party at the address for such Party set forth on page 1 of this
Agreement or at such other address for a Party as shall be specified by like
notice.
9. GOVERNING LAW. This Agreement shall be construed in accordance with
and governed by the laws of the State of New York applicable to agreements made
and to be performed wholly within such jurisdiction without regard to conflicts
of laws principles. Each of the Parties hereby irrevocably and unconditionally
consents to the personal jurisdiction of the State of New York, acknowledges
that venue is proper in any state or Federal court located in the County of New
York, and agrees to waive any objection it has or may have in the future with
respect to any of the foregoing.
10. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original
and all of which shall constitute the same instrument.
11. SEVERABILITY. If any provision of this Agreement, or the
application of any such provision to any person or circumstances, shall be held
invalid by a court of competent jurisdiction, the remainder of this Agreement,
or the application of such provision to persons or circumstances other than
those as to which it is held invalid, shall not be affected thereby, and the
provision or application held invalid shall be deemed modified to give such
provision or application the maximum possible effect.
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12. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
of the Parties with respect to the subject matter hereof and supercedes all
prior agreements, whether written or oral, with respect to such subject matter,
including without limitation the agreement among the Parties with respect to the
Test Period.
IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be
executed on its behalf as of the date first above written.
TEXTBOOKS.COM INC.
By: /S/ PATRICE LISTFIELD
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Name: Patrice Listfield
Title: President
BARNESANDNOBLE.COM LLC
By: barnesandnoble.com inc., its Sole Manager
By: /S/ MARIE TOULANTIS
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Name: Marie Toulantis
Title: hief Financial Officer
The undersigned hereby consents to be
bound by the provisions of Section 2 above.
BARNES & NOBLE COLLEGE
BOOKSTORES, INC.
By: /S/ MAX J. ROBERTS
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Name: Max J. Roberts
Title: President
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