DealerdirectProgramAgreementUSA

Dealer direct Program Agreement(USA)DEALER DIRECT PROGRAM AGREEMENT ?This DEALER DIRECT PROGRAM AGREEMENT (;Agreement;) is made and entered into as of April?16, 2004 (the ;Effective Date;) by and between BARNES?& NOBLE BOOKQUEST LLC, a Delaware limited liability company having an office at 76 Ninth Avenue, New York, New York 10011 (;BNBQ;) and ALIBRIS, a California corporation having an office at 1250 45th Street, Suite 100, Emeryville, California 94608 (;Alibris;). W I T N E S S E T H: ?WHEREAS, BNBQ operates an Internet-based program (the ;BNBQ Dealer Direct Program;) that provides Internet users with the opportunity to purchase rare, secondhand, hard to find and out-of-print books (collectively, as sourced through Alibris under this Agreement, the ;Used?& Hard to Find Books;) directly from the dealers of such Used?& Hard to Find Books;?WHEREAS, Alibris operates an Internet-based business wherein third party booksellers list their respective inventories of Used?& Hard to Find Books with Alibris for the purpose of facilitating the sale thereof,?WHEREAS, Alibris and BNBQ desire to facilitate the participation in BNBQ's Dealer Direct Program of third-party booksellers that currently sell items through Alibris' Internet-based business;?WHEREAS, Alibris wishes to participate in the BNBQ Dealer Direct Program as a service commissionaire, and as a service commissionaire, Alibris shall facilitate the sale of Used?& Out of Print Books by Alibris Dealers (defined below) under the terms set forth in this Agreement using the BNBQ Dealer Direct Program (the ;Services;); and?WHEREAS, Alibris and BNBQ were parties to that certain Dealer Direct Program Agreement, dated March?5, 2003 (the ;Old DDP Agreement;), which expired on April?15, 2004 and desire to enter into this Agreement for the period after the expiration of the Old DDP Agreement.?NOW THEREFORE, in consideration of the mutual covenants, promises and undertakings provided for herein and for other valuable consideration, the receipt and legal sufficiency of which the parties hereby acknowledge, the parties covenant and agree as follows:1.?DEFINITIONS AND INTERPRETATION. 1.1 Definitions.?In this Agreement, unless the context clearly requires otherwise, the following capitalized terms have the following meanings: (a) ;Alibris Book Database; means such portion of Alibris' proprietary database of Used?& Hard to Find Book information and data of and relating to Participating Dealers, including updates to the database, that conforms to the requirements set forth in this Agreement (including without limitation Exhibit?B) and such other requirements as may be agreed to by the parties in writing from time to time. (b) ;Alibris Dealer; means a third party bookseller that (i)?is a member of Alibris' network of booksellers, (ii)?provides Alibris with information and data relating to such bookseller's inventory of saleable Used?& Hard to Find Books, (iii)?accepts the terms of the Alibris Seller Participation Agreement and (iv)?provides Alibris with a worldwide, sub-licensable right to 1 * Note: Confidential treatment has been requested with respect to the information contained within the ;*; marking. The marked portions have been omitted from this filing and has been filed separately with the Securities and Exchange Commission.display such information and data via the Internet in a manner contemplated by this Agreement.(c) ;Alibris Mark-Up; means an amount not to exceed the aggregate of: (a)?* percent (*%) of the Participating Dealer's list price for an Used?& Hard to Find Book; and (b)?the applicable Shipping Mark-Up. (d) ;Alibris Seller Participation Agreement; means the agreement between Alibris and each Alibris Dealer substantially in the form attached as Exhibit?D-1 (and amended from time to time in accordance with the terms therein) by which each Participating Dealer must, either electronically or manually, accept to be bound. (e) ;BNBQ Dealer Agreement; means the agreement between BNBQ and each Participating Dealer in the form attached as Exhibit?D-2 (and amended from time to time in accordance with the terms therein) as supplemented by the Participating Dealer Performance Guidelines by which each Participating Dealer must, either electronically or manually, accept to be bound. Acceptance of the BNBQ Dealer Agreement is a prerequisite to any Alibris Dealer being eligible to participate in the BNBQ Dealer Direct Program. (f) ;Business Day; means a day other than a Saturday, Sunday or United States Postal Service Holiday. (g) ;Calendar Week; means the seven-day period commencing at 12:00:00?a.m. (New York time) on Monday and ending at 11:59:59?p.m. (New York time) on Sunday. (h) ;Claims; means any and all claims, counterclaims, complaints, demands, causes of action, liabilities, obligations, damages, legal fees, costs, expenses, and disbursements, including without limitation reasonable attorneys' fees and court costs, of any nature or kind, whatsoever and howsoever arising, whether known or unknown, whether in law or in equity or pursuant to contract or statute, and whether in any court of law or equity or before any arbitrator or other body, board or tribunal. (i) ;Gross Retail Price; means the price for an Used?& Hard to Find Book identified in the Alibris Book Database, which will equal the aggregate of: (i)?the Participating Dealer's list price for the Used?& Hard to Find Book; and (ii)?the Alibris Mark-Up for the Used?& Hard to Find Book. (j) ;Participating Dealer Performance Guidelines; means the guidelines set forth on Exhibit?E hereto, as amended from time to time, to which each Participating Dealer must conform in accordance with the BNBQ Dealer Agreement. These Participating Dealer Performance Guidelines are generally consistent with the performance requirements of third parties unaffiliated with BNBQ that list their books in the BNBQ Dealer Direct Program. (k) ;Participating Dealer; means an Alibris Dealer that accepts the terms of the BNBQ Dealer Agreement to participate in the BNBQ Dealer Direct Program in accordance with the terms of this Agreement. (l) ;Proceedings; means any and all actions, suits, proceedings, and hearings of any nature and kind in any court of law or equity or before any arbitrator or other body, board or tribunal. (n) ;Shipping Fee; means the shipping and handling fees to Alibris from BNBQ set forth in Exhibit?F-2. (o) ;Shipping Mark-Up; means the mark-up for shipping and high priced books set forth in Exhibit?F-5. 2 * Note: Confidential treatment has been requested with respect to the information contained within the ;*; marking. The marked portions have been omitted from this filing and has been filed separately with the Securities and Exchange Commission.(m) ;Shipping Allowance; means the shipping fees to Participating Dealers to from Alibris set forth in Exhibit?F-3. 1.2 Interpretation.?In this Agreement: (a)?a reference to ;this Agreement; or ;herein;, ;hereof', ;hereunder; and other similar terms refers to this Agreement as a whole, and not just to the particular provision in which those words appear; (b)?headings in this Agreement are for reference only and do not define, limit or enlarge the scope or meaning of this Agreement or any of its provisions; (c)?words importing persons include individuals, partnerships, associations, trusts, unincorporated organizations, societies, and corporations; (d)?words importing the singular number only include the plural and vice versa; (e)?words importing any gender include all genders; (f)?reference to a day, week, month, quarter or year, means a calendar day, week, month, quarter or year, unless expressly stated otherwise; and (g)?references to currency are to the lawful money of the United States of America, unless expressly stated otherwise. 2.?ALIBRIS BOOK DATABASE. 2.1 License Grant.?Subject to the terms and conditions of this Agreement, Alibris hereby grants to BNBQ a non-exclusive, non-transferable, non-sublicensable (except to Barnesandnoble4#ff66ff 11c), limited, restricted, royalty-free, worldwide license to display all or any portion of the Alibris Book Database via the BNBQ Dealer Direct Program during the Term solely in order to facilitate the sale of Used?& Hard to Find Books by Participating Dealers through the BNBQ Dealer Direct Program. Without limiting the foregoing, the license granted hereunder allows BNBQ to permit users of the BNBQ Dealer Direct Program to search the Alibris Book Database to obtain information regarding specific Used?& Hard to Find Books available from Participating Dealers and to order and purchase Used?& Hard to Find Books directly from Participating Dealers via the BNBQ Dealer Direct Program. 2.2?Updates and Changes to Alibris Book Database.(a) Alibris may from time to time correct any errors or inaccuracies in the Alibris Book Database of which Alibris is made aware. BNBQ will use commercially reasonable efforts to promptly implement such Alibris Book Database corrections. (b) If Alibris requests that any portion of the Alibris Book Database be deleted, replaced or made inaccessible via the BNBQ Dealer Direct Program because such Alibris Book Database contains errors or is or could be subject to a third party Claim or Proceeding, then BNBQ will use commercially reasonable efforts to remove promptly such portion of the Alibris Book Database from the BNBQ Dealer Direct Program as soon as commercially practicable after receipt of written notice from Alibris. Alibris shall not * of the * if the sole purpose of * is to * of the * on an * to a * and * which * the * of * to * at * (not * an * or other *). 2.3 Delivery.?Alibris will deliver the Alibris Book Database and updates thereto from time to time to BNBQ by password-protected file transfer protocol that conforms to BNBQ requirements set forth in Exhibit?B and Exhibit?C and in accordance with such other requirements as may be agreed to by the parties from time to time during the Term. 2.4 Ownership.?Notwithstanding any other provision of this Agreement, except for the limited license granted in Section?2.1, Alibris owns and will at all times solely and exclusively retain all right, title and interest throughout the universe in, to and associated with the Alibris Book Database, and Alibris expressly reserves all such rights. 3 * Note: Confidential treatment has been requested with respect to the information contained within the ;*; marking. The marked portions have been omitted from this filing and has been filed separately with the Securities and Exchange Commission.2.5 Book Pricing Restrictions.?Unless and until the parties agree otherwise in writing, the Alibris Book Database will not include Used?& Hard to Find Books with a Gross Retail Price less than $*. The Alibris Book Database will not include Used?& Hard to Find Books with a Gross Retail Price greater than $* unless otherwise requested by BNBQ in writing. 2.6 Data Enhancements, Policies?& Reporting.?Alibris will provide further enhancements that include but are not limited to book data and policies and programs to manage data and Participating Dealer reporting as set forth on Exhibit?A. 3.?TRADEMARKS. 3.1 Alibris Marks.?Subject to the terms and conditions of this Agreement, Alibris hereby grants to BNBQ a limited, restricted, non-exclusive, non-transferable, non-sublicensable (except to Barnesandnoble#ff66ff llc), royalty-free, revocable license to use and reproduce the trademarks, trade names, designs and logos of Alibris set forth in Exhibit?I (the ;Alibris Marks;) during the Term solely to display, advertise, market or promote (on-line and otherwise) the availability of the Alibris Book Database on the BNBQ Dealer Direct Program, provided that all such uses and reproductions of the Alibris Marks comply with all standards and specifications communicated by Alibris in writing to BNBQ from time to time, and further provided that BNBQ submits samples of all such materials to Alibris for its prior approval, which approval shall not to be unreasonably withheld or delayed. Alibris may in its absolute discretion change, modify, or replace any Alibris Mark at any time, and, upon reasonable notice to BNBQ, BNBQ will comply with such changes, provided that any commercially unreasonable cost associated with such compliance will be borne by Alibris. BNBQ will cease using any materials containing any Alibris Mark immediately upon termination of this Agreement. BNBQ's use of the Alibris Marks will inure to the benefit of Alibris. 3.2 BNBQ Marks.?BNBQ hereby grants to Alibris a limited, restricted, non-exclusive, nontransferable, non-sublicensable, royalty-free, revocable license to use and reproduce the trademarks, trade names, designs and logos of BNBQ set forth in Exhibit?J (the ;BNBQ Marks;) during the Term solely to display, advertise, market or promote (on-line and otherwise) the availability of the Alibris Book Database on the BNBQ Dealer Direct Program, provided that all such uses and reproductions of the BNBQ Marks comply with all standards and specifications communicated by BNBQ in writing to Alibris from time to time, and further provided that Alibris submits samples of all such materials to BNBQ for its prior approval, which approval shall not to be unreasonably withheld or delayed. BNBQ may in its absolute discretion change, modify, or replace any BNBQ Mark at any time, and Alibris will comply with such changes provided that any commercially unreasonable cost associated with such compliance will be borne by BNBQ. Alibris will cease using any materials containing any BNBQ Mark immediately upon termination of this Agreement, or at any time sooner upon written request by BNBQ. Alibris' use of the BNBQ Marks will inure to the benefit of BNBQ. 3.3?Ownership and Proprietary Rights.(a) Alibris Marks.?Notwithstanding any other provision of this Agreement, except for the limited license granted in Section?3.1, Alibris owns and will at all times solely and exclusively retain all right, title and interest throughout the universe in, to and associated with the Alibris Marks, and Alibris expressly reserves all such rights. Neither BNBQ nor any other person will acquire any right, title or interest in, to or associated with the Alibris Marks under the terms of this Agreement. (b) BNBQ Marks.?Notwithstanding any other provision of this Agreement, except for the limited license granted in Section?3.2, BNBQ or its licensors owns and will at all times solely and 4 * Note: Confidential treatment has been requested with respect to the information contained within the ;*; marking. The marked portions have been omitted from this filing and has been filed separately with the Securities and Exchange Commission.exclusively retain all right, title and interest throughout the universe in, to and associated with the BNBQ Marks, and BNBQ expressly reserves all such rights. Neither Alibris nor any other person will acquire any right, title or interest in, to or associated with the BNBQ Marks under the terms of this Agreement.(c) Reservation of Rights.?All rights not expressly granted under this Agreement are reserved to the parties. 4.?PARTICIPATING DEALERS. 4.1 Service Commissionaire.?Alibris will act as a service commissionaire for the Participating Dealers. Alibris will purchase the Services directly from BNBQ, in its own name, for the account of the Participating Dealers. The Participating Dealers are the sellers of record for items sold via the BNBQ Dealer Direct Program through the Alibris listings. Neither BNBQ nor Alibris is a party to the sale transaction between the buyer via the BNBQ Dealer Direct Program (;Buyer;) and the Participating Dealer. BNBQ is not a party to any transactions between Alibris and the Participating Dealers. BNBQ is only providing the Services to Alibris, and Alibris is only acting as an intermediary in such transactions between Buyer and Participating Dealer. 4.2 Qualifications.?Alibris will only allow Alibris Dealers that are members in good standing of Alibris' network of booksellers to be Participating Dealers. Alibris will neither (i)?permit Participating Dealers whom Alibris considers to be disreputable or unreliable in providing Used?& Hard to Find Books to participate in the BNBQ Dealer Direct Program nor (ii)?allow an Alibris Dealer to be a Participating Dealer without BNBQ's prior consent. 4.3 Agreement with Participating Dealers.?Alibris will require each Alibris Dealer whose Used?& Hard to Find Books are to be included in the Alibris Book Database to accept the terms and conditions of the Alibris Seller Participation Agreement as supplemented by BNBQ Dealer Agreement. Such acceptance shall be a prerequisite for an Alibris Dealer to sell Used?& Hard to Find Books via the BNBQ Dealer Direct Program. 4.4?Removal of Participating Dealers and Suppression of Listings.(a) BNBQ may in its absolute discretion terminate the participation of any Participating Dealer in the BNBQ Dealer Direct Program or remove or delete any or all of the Participating Dealer's listings of Used?& Hard to Find Books from the BNBQ Dealer Direct Program if and only to the extent that: (i) The Participating Dealer materially breaches the BNBQ Dealer Agreement or BNBQ has reason to anticipate material breach of such BNBQ Dealer Agreement; (ii) The Participating Dealer materially breaches the Participating Dealer Performance Guidelines; (iii) The Participating Dealer's ;dealer list; prices for the Used?& Hard to Find Books (i.e., the prices set by the Participating Dealer, not Alibris) are * to * in * to the * by * for * on the BNBQ Dealer Direct Program and, under *, are not promptly * to a *; (iv) Any listing by such Participating Dealer would unreasonably expose BNBQ to unacceptable liability (e.g., such listing relates to (A)?materials * is in *; (B)?a potential * in the * where booksellers and their agents have certain responsibilities that * is * to *); 5 * Note: Confidential treatment has been requested with respect to the information contained within the ;*; marking. The marked portions have been omitted from this filing and has been filed separately with the Securities and Exchange Commission.(v) Participating Dealer has had, in BNBQ's opinion, unacceptable dealings with BNBQ and/or its affiliates; (vi) Participating Dealer has made * and/or its *; (vii) The Participating Dealer is already listing its Used?& Hard to Find Books within the BNBQ Dealer Direct Program and BNBQ desires to prevent double listing by such Participating Dealer; (viii) a BNBQ Customer or other third party commences, maintains, continues or assigns any Claim or Proceeding against the Participating Dealer, Alibris or BNBQ arising from, connected with or relating to any actual or alleged act or omission by the Participating Dealer or any person for whom the Participating Dealer is in law responsible. (b) Alibris may in its absolute discretion terminate the participation of any Alibris Dealer in the BNBQ Dealer Direct Program or remove or delete any or all of the Alibris Dealer's lis