Exhibit 10.35
FIRST AMENDMENT TO E-COMMERCE AGREEMENT
This First Amendment to E-Commerce Agreement is made as of the 5th day of
December, 1999 by and between Global Sports Interactive, Inc., a Pennsylvania
corporation ("GSI"), and Dunham's Athleisure Corporation, a corporation
("Retailer").
GSI and Retailer are parties to an E-Commerce Agreement, dated as of March
23, 1999 (the "Agreement"), pursuant to which GSI agreed to act as Retailer's
outsourcing company for the on-line sale of sporting goods products through a
web site to be created, developed, operated, managed and maintained by GSI (the
"Retailer Web Site") in accordance with the terms of the Agreement. GSI and
Retailer desire to amend the Agreement as set forth in this Amendment to provide
that the image of Retailer's Web Site will be consistent with the image of
Retailer's Land Based Stores. All capitalized terms used in this Amendment
without definition shall have the meanings given to such terms in the Agreement.
The parties, intending to be legally bound, agree as follows:
1. The Agreement is amended to add the following Sections 3.3(f), 3(g),
3(h) and 3(i):
f. If, at anytime during the Term, Retailer notifies GSI in writing
that the assortment of On Line Merchandise being offered for sale
on the Retailer's Web Site is not consistent with the In Line
Merchandise being offered for sale in Retailer's Land Based
Stores, GSI agrees to offer for sale on the Retailer's Web Site
up to 500 styles of such In Line Merchandise that are not being
offered on the Retailer's Web Site as selected by Retailer (the
"Selected Merchandise"), in accordance with the following terms:
1) Within 14 days after receipt of such notice from Retailer,
GSI shall place a purchase order. GSI shall have the option
to purchase merchandise from the Retailer, manufacturer or
other vendor at its discretion. If GSI elects to purchase
the Selected Merchandise from Retailer, GSI shall purchase
from Retailer, and Retailer shall sell to Global, the
Selected Merchandise in accordance with the terms of the
Letter Agreement, dated October 7, 1999 (the "Letter
Agreement"), as amended in Section 3 of this Amendment,
unless Retailer shall handle the fulfillment for the sale by
GSI of Selected Merchandise on Retailer's Web Site, in which
case the parties will agree upon appropriate procedures.
2) Within 14 days after GSI receives at its fulfillment center
Selected Merchandise purchased by GSI, GSI shall offer for
sale on the Retailer's Web Site such Selected Merchandise.
3) Global shall not be required to purchase more than 300
styles in any month and shall not be required to purchase
more than 500 styles in any calendar quarter.
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a. If, at any time during the Term, Retailer notifies GSI
in writing that the value message for On Line
Merchandising being offered for sale on the Retailer's
Web Site is not consistent with the value message that
Retailer advertises for In Line Merchandise being
offered for sale in Retailer's Land Based Stores, then
GSI agrees to place on Retailer's Web Site, within
fifteen (15) days after receipt of such notice, the
appropriate value message.
b. If GSI materially breaches its obligations under
Section 3.3(f) or Section 3.3(g), and provided Retailer
has complied with its obligations under Section 3.3(i),
Retailer shall notify GSI in writing, specifying in
reasonable detail the nature of the breach, and GSI
shall have 30 days after the receipt of such notice to
cure the breach. If GSI shall not cure the breach
within the 30-day period, Retailer shall have the right
to require GSI to take down the Retailer's Web Site
until such time as the breach is cured; provided,
however, that if GSI materially breaches its
obligations under Section 3.3(f) or Section 3.3(g) more
than three times in any six-month period, GSI shall not
have the right to cure any further breach of Section
3.3(f) or Section 3.3(g) within such six-month period.
The cure periods set forth in this Section 3.3(h) shall
be the only cure periods applicable to a breach by GSI
of its obligations under Section 3.3(g) or 3.3(h).
c. Retailer shall cooperate with GSI in the performance by
GSI of its obligations under Section 3.3(f) and Section
3.3(g), including (x) furnishing GSI with copies of
weekly specials at least four (4) weeks prior to the
publication by Retailer of such weekly specials, and
(y) for all Selected Merchandise purchased by GSI,
placing GSI's SKU number on Retailer's shipping list
next to each item of Selected Merchandise purchased by
GSI. To facilitate Retailer's obligations under clause
(y), Retailer shall give GSI in electronic form
Retailer's SKU number for each item of Selected
Merchandise, and GSI shall furnish Retailer purchase
orders in electronic form with a cross reference file
showing the GSI SKU number that corresponds to
Retailer's SKU number for each item of Selected
Merchandise purchased by GSI.
1. Except as amended hereby, the Agreement shall remain in full
force and effect in accordance with its terms.
2. The Letter Agreement is hereby amended as follows:
a. The following clause is hereby added to the end of
Section 2(c) of the Letter Agreement under GSI:
GSI may return any product delivered to its fulfillment
center from Dunham's that arrives damaged and/or
unsaleable. GSI will notify Dunham's of these claims
within 21 days after receiving the shipment of such
product.
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b. Section 5(A) of the Letter Agreement is amended in its
entirety to read as follows:
A. Payment of invoice due in 10 days upon receipt of
merchandise. Invoices not paid within 10 days will
be subject to a late fee of 1% per month.
c. Section 5(D) of the Letter Agreement is amended to read
in its entirety as follows:
D. Dunham's is not responsible for concealed
shortages so long as such shortages do not exceed
10% of the invoice amount for such shipment,
inasmuch as GSI will not generally be ordering
case pack quantities. Dunham's will implement
control procedures to ensure shipment accuracy.
Dunham's will allow GSI to audit any order prior
to shipment. Dunham's will supply a packing slip
identifying the carton in which each product is
packed.
d. Section 5(E) of the Letter Agreement (after the first
sentence) is amended to read in its entirety as
follows:
C. GSI and Dunham's will continue to develop a more
efficient method of shipping and receiving product
between the two parties.
Dunham's may, at its sole discretion, choose not
to ship any particular item ordered by GSI.
However, in this case, Dunham's cannot hold GSI
accountable for said unshipped product not
appearing on the Dunham's web site.
Global Sports Interactive, Inc. Dunham's Athleisure Corporation
By: /s/ Michael Golden By: /s/ Marshall Sosna
Name: Michael Golden Name: Marshall Sosna
Title: EVP Title: CFO
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