Pubnet Retailer Agreement for BookNet Canada Trading Partners

This Agreement ("Agreement") is entered into by and between "Retailer" as named in the Retailer SAN & Pubnet EDI Mailbox Registration Form and MVB Marketing - und Verlagsservice des Buchhandels GmbH US Inc. ("MVB US, Inc."), a New York corporation, with its principal place of business located at 1412 Broadway, 21st Floor, Suite 2105, New York City, NY 10018, United States (“Company”).
 
WHEREAS Company provides an Internet-based and private network based electronic commerce system ("Pubnet" or the "Pubnet Services") linking publishers, distributors, wholesalers, bookstores and other retailers (each a "Trading Partner" and collectively, "Trading Partners") for the electronic exchange of predefined data sets to facilitate the sale, purchase or distribution of books and other products; and 

WHEREAS Company and BookNet Canada ("BookNet Canada") have entered into a Services and Marketing Agreement (the "Services and Marketing Agreement") whereby Company has agreed to make the Pubnet Services available to participants in the Canadian book industry under the terms and conditions as specified in this Agreement.

IN CONSIDERATION of the mutual covenants and undertakings contained herein, the Parties agree as follows:

RETAILER wishes to receive Pubnet services and hereby requests that a Pubnet mailbox be set up for their use. 

RETAILER agrees to pay the one-time joining fee of $50 (CAN) plus HST.

RETAILER has read and hereby agrees to the “Pubnet Terms and Conditions for Booknet Canada” (Appendix A) and the “Pubnet Service Level Agreement for BookNet Canada and its Canadian Trading Partners” (Appendix B). 

By submitting the Retailer SAN & Pubnet EDI Mailbox Registration Form, the Retailer agrees to these terms.

APPENDIX A: Pubnet Terms and Conditions for BookNet Canada

1.    SERVICES

1.1    Services.  Company shall maintain and administer Pubnet and the Pubnet Services.  So long as this Agreement is in effect, and Retailer complies with the terms and conditions of this Agreement, Pubnet will accept properly formatted messages, including but not limited to, Transaction Data (as defined in Section 2.2) from Retailer, will cause such messages to be transmitted to the electronic mailboxes of Retailer’s Trading Partners, and shall allow Retailer access to its electronic mailbox to retrieve messages and access to other services available from time to time through Pubnet.  Company shall maintain the Pubnet Services in accordance with the Pubnet Service Level Agreement (the “SLA”) attached hereto as Appendix B.

1.2    Availability.  Pubnet access is available to Retailer twenty-four (24) hours a day, seven (7) days a week, 365 days per year.  Subject to the terms of the SLA, Company may temporarily suspend Pubnet access for maintenance purposes, and when reasonably possible give advance notice to Retailer of the suspension.  In addition to any obligations in the SLA, Company shall reestablish Pubnet access in the event of scheduled interruptions, and shall use its best efforts to reestablish Pubnet access quickly in the event of unscheduled interruption.

1.3    Legal Requirements. Company shall comply with laws applicable to the Pubnet Services, including, without limitation, the United States Electronic Communications Privacy Act of 1986, as amended, as it relates to private electronic messages sent or received through Pubnet.  Pubnet is not responsible for, and shall not inspect, the contents of any Transaction Data (as defined in Section 2.2), other than Transaction Data headers and addresses, or disclose their contents to anyone other than, or as directed by, the originating party or the intended recipient, except as provided in Sections 4.4 and, 6.2 or as may be required by law.  This obligation respecting Transaction Data is independent of, and is not limited by, Section 6.

1.4    Message Deletion.  Company may delete Transaction Data from electronic mailboxes after a period of thirteen (13) months.   Company is not responsible for retaining or delivering Transaction Data in the electronic mailbox of, or that are addressed to, a suspended or terminated subscriber.  Pubnet shall notify the sender of any message which Pubnet is unable to deliver.

1.5    No Agency.   Company is an independent contractor, and neither Company nor Retailer is the employee, agent, partner, or joint venture of the other in performing this Agreement.

2.    CONDITIONS OF USE AND ACCESS

2.1    Operating Rules.  Retailer shall use Pubnet in a manner consistent with applicable laws and in accordance with operating rules governing Retailer activity on Pubnet adopted by Company. .  Operating rules include format, content, and other standards for the electronic exchange of Transaction Data, including but not limited to standards adopted by the BookNet Canada EDI standards committee (collectively, the "Standards").  All operating rules and Standards are available on the Pubnet home page.  Notice of changes of the operating rules or the Standards will be posted on the Pubnet home page, and shall be effective ninety (90) days following posting.  Operating rules and Standards shall be generally applicable, and changes shall not materially or adversely affect the rights of the Retailer or functionality of the Pubnet Services.  Pubnet shall provide notice of any such changes to Subscribers via email, the Pubnet monthly newsletter, and, if necessary, by telephone.

2.2    Electronic Messages.  Retailer may electronically transmit and receive from Trading Partners standardized documents including, but not limited to, the following:  Purchase Orders, Purchase Order Acknowledgements, Functional Acknowledgements, Advanced Ship Notices, Invoices, and new document types adopted by the BookNet Canada EDI standards committee (collectively, "Transaction Data"). 

2.3    Retailer’s Responsibility.  Retailer is solely responsible for all use of its Pubnet account, for the payment, as applicable, of all charges incurred for such use, and for any violation of the terms of this Agreement by anyone using its account.  For the purposes of the preceding sentence, "use" shall have the meaning stated in Section 9.3.  Retailer may not resell the Pubnet Services or use Pubnet to perform services for unrelated third parties. 

2.4    Equipment.  Retailer, at its own expense, shall provide and maintain the equipment, software, and services necessary to effectively and reliably connect to Pubnet and to transmit and receive Transaction Data.  The minimum hardware and software requirements for access to, and full use of, the Pubnet Services are available on the Pubnet home page, "About Pubnet", "System Requirements."

3.    FEES

3.1    BookNet Canada shall invoice Retailer for the Pubnet Services.  Retailer shall remit payment to BookNet Canada.  BookNet Canada shall remit to Pubnet.  If BookNet Canada fails to remit payment on behalf of Retailer to Company Pubnet, Company will exercise its remedies against BookNet Canada and not Retailer.  

3.2    BookNet Canada shall charge Retailer the fees set forth in this Agreement for use of the Pubnet Services.  Retailer's fees are due and payable in full to BookNet Canada within thirty (30) days from the date of BookNet Canada's invoice to Retailer.  Amounts not paid by Retailer to BookNet Canada when due may be subject to the prime rate charged by BookNet Canada's banker for commercial loans to domestic customers, plus 5%.  BookNet Canada will remit timely payments on behalf of Retailer to Company.  Company may also terminate, upon notice from BookNet Canada, Retailer’s access to the Pubnet Services if amounts owed and unpaid by Retailer are more than sixty (60) days past due.

4.    INFORMATION CARRIED ON PUBNET 

4.1    Writing.  Transaction Data properly transmitted pursuant to this Agreement and the Standards shall, as between originating and receiving parties, have the same effect as if submitted in written form, signed by the originating party, and will constitute an "original" when printed, without modification to its content, from electronic files or electronic records established and maintained in the normal course of business.  Retailer shall make copies of source records related to Transaction Data that it originates available to the recipient for verification upon request.

4.2    Authentication.  As between Retailer and Company, Retailer is solely responsible for proper transmission of Transaction Data to and from Pubnet, for implementing sufficient procedures and checkpoints to satisfy its particular requirements for the accuracy of data transmitted and received, and for maintaining a means external to Pubnet for the reconstruction of any lost data.  Retailer shall promptly correct all errors discovered in Transaction Data it transmits.  If any Transaction Data received by Retailer is in an unintelligible or garbled form, Retailer will promptly notify the originating party if identifiable from the received communication. Company shall provide the support described in Section 1.3 to assist Retailer in fulfilling its obligations hereunder.

4.3    Other Agreements.  This Agreement does not establish a contractual relationship among Trading Partners, except to the extent that Retailer and each Trading Partner are beneficiaries of Section 4.1.  Notwithstanding anything to the contrary, Retailer acknowledges that any Transaction Data submitted or received by Retailer is also subject to the terms and conditions of all relevant agreements now or hereafter existing between Retailer and its Trading Partners, as applicable.  Retailer expressly waives any rights to bring an action declaring the invalidity of a transaction concluded between it and a Trading Partner on the sole ground that the transaction took place by use of the Pubnet Services.  In the event of a conflict, the terms of this Agreement shall govern the submission, receipt and effectiveness of Transaction Data on Pubnet.

4.4    Transaction Data License.  Company acknowledges that Retailer owns all right, title and interest in and to its Transaction Data.  Subject to (c) below, Retailer hereby grants to Company a royalty free, perpetual, worldwide right and license to use internally any or all of Retailer’s Transaction Data or any Aggregated summaries, or analyses, thereof, for Company’s business purposes.  For purposes of this Agreement, “Aggregated” means use of Retailer’s Transaction Data in combination with other subscribers’ Transaction Data without disclosing information which does or could identify Retailer by either company level or title level.  Additionally, and subject to (c) below, Retailer grants to Pubnet the right to provide Retailer’s Transaction Data to BookNet Canada, for the following purposes, only:

(a)    Company may use the bibliographic information contained in Retailer’s Transaction Data to update and enhance any Pubnet and/or Nielsen bibliographic database and to produce, market, promote, sell or license in any form or medium any Company bibliographic databases containing Retailer’s bibliographic information; and

(b)    Each of Company and BookNet Canada are free to produce, market, promote, sell or license Aggregated summaries of the Transaction Data (not disclosing information which does or could identify Retailer) and to produce, market, sell or license analysis based on same. 

(c)    Notwithstanding the foregoing, Retailer may opt out of the provision of any or all licenses granted herein at any time by advising Company in writing of its decision to opt out of this Section 4.4 in its entirety, or any portion thereof (hereinafter referred to as “Opt-Out”). The Opt-Out shall be effective as of the date upon which notice is delivered to Company in accordance with this Agreement, and any use of the Retailer Transaction Data by Company or BookNet Canada prior to the date of the Opt-Out shall be deemed to have been under the terms of the license granted herein. 

4.5    Use of Non-Aggregated Data by BookNet Canada.  Retailer hereby acknowledges and allows BookNet Canada to access, analyze and use non-Aggregated data (i.e. company– and/or title-level data) for accreditation, analysis, troubleshooting, and similar and related purposes, consistent with the BookNet Canada charter including for commercial or non-commercial purposes.  

5.    SECURITY

5.1    Procedures.  Retailer shall use those security procedures, including any specified in the Standards, which it deems reasonably sufficient to ensure that all Pubnet® access, Transaction Data transmissions and other uses of the Pubnet Services are authorized, and to protect Retailer Confidential Information (as defined in Section 6.1) from improper access or modification.   Company shall not be liable for the interception by improper means or the theft by persons, other than Pubnet employees, agents or contractors, of Transaction Data carried on Pubnet or deposited in Subscribers’ mailboxes.

5.2    Signatures.  Access to and use of the Pubnet Services requires an electronic identification consisting of a user ID and password, which are to be affixed to or contained in any Transaction Data, transmitted by Retailer ("Signatures"). SUBSCRIBER IS RESPONSIBLE FOR MAINTAINING THE CONFIDENTIALITY, AND CONTROLLING THE USE, OF ITS USER ID AND PASSWORD.  Recipients of Transaction Data shall maintain the confidentiality of the Signatures of other Subscribers affixed or contained in such Transaction Data.

6.    CONFIDENTIALITY

6.1    Definition.  "Confidential Information" means: (a) information designated as "confidential" or "proprietary;" or (b) that which should have been known to be "confidential" or "proprietary" from the nature of the information or the circumstances of its disclosure, including but not limited to, Transaction Data, licensing strategies, business plans, and product ideas; and (c) trade secrets, including without limitation, any plans, applications, systems and strategies, which are subject to an obligation of confidentiality or nondisclosure as a matter of law, and the terms and conditions of this Agreement.

6.2    Obligation.   Company shall keep in confidence, and will not disclose without Retailer’s consent, Confidential Information received from Retailer, other than to employees, agents and contractors with a need to know.  Company shall prevent improper disclosure of Confidential Information, and to ensure that its employees, agents and contractors shall also comply with the provisions of this Section 6.  Retailer shall be entitled to an injunction prohibiting the improper disclosure of Confidential Information, actual or threatened, and to the specific enforcement of Company’s obligations hereunder, in addition to every other remedy now or hereafter available to Retailer in law or equity.

6.3    Scope.  This Section 6 states Company’s obligations with respect to Retailer’s Confidential Information.  It does not apply to obligations of confidentiality between subscribers, or affect any agreements among subscribers and their Trading Partners relating to Confidential Information.  Confidential Information does not include information which (a) was in Company’s possession before it was obtained from Retailer; (b) is or becomes a matter of general public knowledge obtained through no fault of Company; (c) is developed independently by or on behalf of Company; or (d) is lawfully received by Company from a source other than Retailer.  Neither the transmission or re-transmission of Transaction Data as provided in this Agreement nor the disclosure of Confidential Information in response to a court order or other legal requirement is a prohibited disclosure, provided, however, that if Company is legally compelled to disclose Retailer’s Confidential Information, Company shall promptly notify Retailer of such request or legal process.  As between Retailer and Company, Company asserts no ownership or proprietary rights in the Transaction Data, other than the rights granted to Company by Retailer under Section 4.4 of this Agreement.

7.    CONTRACTORS

Company may perform its obligations, including but not limited to certain Pubnet communications and support services, under this Agreement directly or through subcontractors.  Pubnet shall cause its subcontractors to comply with the applicable terms of this Agreement, including but not limited to, obligations with respect to the contents of Transaction Data stated in Sections 1.3 and 6.  Company shall remain the prime contractor, with complete legal responsibility for the performance of the Pubnet Services.

8.    WARRANTY; DISCLAIMER OF WARRANTY; LIMITATION OF LIABILITY

8.1    Warranty.  Company warrants and represents that: (a) it has the full right, power and authority to enter into this Agreement and to grant a license to use the Pubnet Services to Retailer; (b) it owns all right, title and interest in and to the Pubnet Services; (c) it will use its best efforts to correctly transmit Transaction Data to the designated recipient in a timely manner; and (d) the Pubnet Services will substantially comply with the functionality set out in the Services and Marketing Agreement between BookNet Canada and Company. 

8.2    Export Laws.  Each party warrants and represents that it shall abide by any applicable export and import laws and regulations.   Company warrants that providing the Pubnet Services to Retailer as described hereunder does not violate any United States export laws.

8.3    Disclaimer of Warranty.  COMPANY MAKES NO OTHER WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, REGARDING THE COMPANY SERVICES OR RESOURCES PROVIDED BY IT, TRANSACTION DATA TRANSMITTED ON COMPANY®, OR SUBSCRIBER'S USE OF THE COMPANY SERVICES NOT IN COMPLIANCE WITH APPLICABLE STANDARDS.  COMPANY DISCLAIMS LIABILITY FOR THE CONTENT AND USE (OTHER THAN USE BY IT OR OTHERS ON ITS BEHALF) OF TRANSACTION DATA.  Company does not warrant uninterrupted or error-free operation, compatibility with any particular hardware or software, or interconnectability with other networks or services.  Nothing herein derogates from Company's obligations under the SLA.

8.4    Limitation of Liability:  Except for Company’s obligation to indemnify under Section 9.2 below: 

a)  Regardless of whether any remedy set forth herein fails in its essential purpose or otherwise, neither Retailer or Company will be liable to the other for lost profits or data, or any special, incidental, indirect, exemplary or consequential damages arising from or as a result of any delay, omission, or error in the transmission or receipt of any Transaction Data or use of the Pubnet Services, even if advised in advance of the possibility of such damages.

b)  NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, LOST BUSINESS OR LOST PROFITS, REGARDLESS OF WHETHER SUCH DAMAGES ARE FORESEEABLE, WHETHER SUCH DAMAGES ARE DEEMED TO RESULT FROM THE FAILURE OR INADEQUACY OF ANY EXCLUSIVE OR OTHER REMEDY OR WHETHER A PARTY HAS BEEN ADVISED OF SUCH DAMAGES. 

c)  EXCEPT WITH RESPECT TO THE COMPUTATION OF DAMAGES FOR INFRINGEMENT OF INTANGIBLE PROPERTY SUBJECT TO COPYRIGHT, PATENT RIGHT, TRADE SECRET OR OTHER PROPRIETARY RIGHTS, AND EXCEPT WITH RESPECT TO SUBSCRIBER'S INDEMNIFICATION OBLIGATIONS IN SECTION 9.3 BELOW, IN NO EVENT SHALL THE LIABILITY OF EITHER PARTY HEREUNDER EXCEED THE AMOUNT OF FEES PAID OR OWED BY SUBSCRIBER TO PUBNET FOR THE TWELVE MONTHS PRECEDING THE FILING OF THE RELEVANT CLAIM.

9.    Indemnification.

9.1    By Each Party.  Subject to the limits of liability in Section 8 hereof, each party shall defend, hold harmless and indemnify the other, its directors, members, officers, agents, employees, and contractors from and against any and all such claims, demands and actions and any liabilities, damages and expenses (including, without limitation, reasonable attorneys' fees) imposed upon the indemnified party as a result of any third party claim arising out of the actual or alleged acts or omissions of the indemnifying party, or breach of any material term of this Agreement by the indemnifying party; provided that the party seeking indemnification shall promptly notify the other of any such claim, and permit such other party to control the defense or resolution thereof, and the party seeking indemnification shall fully cooperate with the other in connection therewith.  Notwithstanding anything herein to the contrary, an indemnifying party may not consent to entry of any judgment or enter into any settlement without the prior written consent of the indemnified party (which consent shall not be unreasonably withheld or delayed).

9.2    By Company.  In the event of a third party claim that the Pubnet Services infringes upon a patent, copyright or other proprietary rights of such third party, Company will indemnify, hold harmless, and defend Retailer and its directors, members, officers, agents, employees, and contractors from and against any and all such claims, demands and actions, and any liabilities, damages or expenses resulting therefrom, including court costs and reasonable attorneys' fees.  Company shall have no liability or obligation for claims based on (a) Retailer’s use of the Pubnet Services not in compliance with applicable operating rules and Standards, and (b) the content of Transaction Data.  THIS SECTION STATES COMPANY’S ENTIRE OBLIGATION TO RETAILER FOR ACTUAL OR ALLEGED INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.  

9.3    By Retailer.  Subject to the limits of liability in Section 8 hereof, Retailer agrees to indemnify, defend, and hold harmless Company, its directors, members, officers, agents, employees and contractors for, from and against all damages and costs, including reasonable attorneys’ fees, that result from the claims of third parties arising out of Retailer’s use of the Pubnet Services, including the content and use of Transaction Data, provided that Company notifies Retailer in writing promptly upon discovery of any such third party claim, and gives Retailer complete authority and control of, and fully cooperates with Retailer in, the defense and settlement of such claim.  For the purposes of this Section, Retailer’s "use" of Pubnet: (a) means (i) use by Retailer’s employees, agents and contractors who have obtained Retailer’s Signatures in their employment or engagement; (ii) use by Retailer’s employees, agents and contractors following their separation from employment or engagement by Retailer enabled by the use of Signatures obtained in their employment or engagement; (iii) use by any person who obtains Retailer’s Signatures because of Retailer’s negligence; (iv) and use by any person who obtains Retailer’s Signatures from any person described in (i), (ii) or (iii) above, and (b) specifically excludes the unauthorized use of Retailer’s Pubnet account by any person not described in (i) through (iv) above who "hacks" or "cracks" Retailer’s Signature.

10.    PROPRIETARY RIGHTS

Retailer acknowledges that Company, its licensors or both own all right, title and interest, including, without limitation, the copyright, in and to the Pubnet Services and all components thereof.  The copyright and title to all property interests in or to the Pubnet Services are and shall remain in Company, its licensors, or both as owner and this Agreement shall not grant to Retailer, or any Retailer affiliate, agent, customer any right of ownership therein.

11.    LIMITATION OF ACTION

No action, regardless of form, arising out of this Agreement may be brought by either party more than two years after the later of: a) when the cause of action has arisen, and b) when the cause of action should reasonably have been discovered; or in the area of nonpayment, more than two years from the date of last payment.

12.    TERM AND TERMINATION

12.1    Term.  The Term of this Agreement shall commence on the Effective Date (as defined herein) and continue until cancelled by the Retailer in writing upon 30 days prior written notice or by Company upon 90 days’ prior written notice.  

12.2    By Pubnet for Cause.  Company may terminate this Agreement (a) if Retailer fails to comply with any of its material terms or conditions, or (b) if Retailer uses or attempts to use the Pubnet Services for any fraudulent or illegal purpose, or in any manner contrary to the terms of this Agreement or the Standards; and in each of (a) and (b), fails to cure such non-compliance within thirty (30) days’ of notice.  Company may, upon instruction from BookNet Canada, without prior notice, immediately suspend Retailer’s access to the Pubnet Services, with or without terminating this Agreement, (i) so long as any payment from Retailer not being contested in good faith is past due, or (ii) if Retailer uses or attempts to use the Pubnet Services for any fraudulent or illegal purpose.  Any Retailer so suspended shall be required to pay, as applicable, a reasonable reconnect fee, if any.

12.3    Obligations on Termination.  The effective date of termination shall be the date agreed upon by the parties, or sixty (60) days following notice of termination, whichever occurs first.  Retailer shall, within thirty (30) days of the effective date of termination, turn over to Company or, if agreed to by Company, certify the destruction of, all property belonging to or provided by Company under this Agreement.

13.    GENERAL PROVISIONS

13.1    Governing Law.  If Pubnet is the initial defendant, this Agreement shall be governed by, and construed in accordance with, the substantive and procedural laws of the State of New Jersey of the United States of America, without reference to the principles of choice of laws thereof and the venue shall be New York, New York.  If Company is the initial plaintiff, this Agreement shall be governed by, and construed in accordance with, the substantive laws of the State of New York of the United States of America and the procedural laws of Ontario, Canada, without reference to the principles of choice of laws thereof and the venue shall be Toronto, Ontario.  In the case of any dispute related to this Agreement or enforcement thereof between Pubnet and Retailer, the parties shall first attempt to resolve the dispute through mediation between representatives of the parties.  If the dispute cannot be resolved within a reasonable time, the parties shall seek mediation by a recognized mediation firm acceptable to both parties. 

13.2    Force Majeure.  Neither party shall be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, legislation rendering performance illegal, sabotage, war or terrorism, or any other cause, in each case which is beyond the control of such party and which cannot be circumvented through the use of alternate sources, work-around plans, contingency plans, or other means ("Force Majeure"), provided that such party gives the other party written notice thereof promptly and in any event, within fifteen (15) business days of discovery thereof.  In the event of such a Force Majeure, the time for performance or cure shall be extended for the duration of the Force Majeure.  Notwithstanding the foregoing, should any extension of the period of performance exceed thirty (30) days, either party may, upon notice to the other, terminate this Agreement, and such termination shall not constitute a breach herein.

13.3    Enforceability.  If any one or more of the provisions of this Agreement shall, for any reason, be held to be invalid, illegal or unenforceable, the same shall not affect any other provision of this Agreement; provided, however, that before declaring any provision to be invalid, illegal or unenforceable, a court shall have the right to reform such provision, if possible, so as to make it valid, legal and enforceable.

13.4    Headings.  The headings are for convenience and shall not affect the construction or interpretation of any provisions of this Agreement.

13.5    Assignment.  Neither Company nor Retailer may transfer or assign its rights or obligations under this Agreement without the prior written consent of the other, except for a transfer or assignment to a parent, subsidiary, or affiliate, or an entity with which it is merged or consolidated, or the purchase of all or substantially all of its assets (or assets of the line of business to which this Agreement relates), provided such purchaser assumes all its obligations under this Agreement.

13.6    Survival.  The provisions of Sections 4.4, 6, 8.3, 8.4, 9, 10, 11, 12.3, and 13 shall survive the termination of this Agreement.

13.7    Party Rights.  Except as specifically provided, nothing in this Agreement is intended to confer any rights or remedies under or by reason of this Agreement on any persons other than the parties hereto and their respective successors and assigns, nor is anything in this Agreement intended to relieve or discharge the obligation or liability of any third parties to any party to this Agreement, nor shall any provision give any third party any right of subrogation or action against any party to this Agreement.

13.8    Notices.  Except as otherwise provided herein, all notices and other communications under this Agreement shall be in writing and shall be addressed to such party at the address set forth in this Agreement or to such other address as may hereafter be designated in writing by the addressee to the addressor, and shall be deemed sufficient if sent by registered mail, postage prepaid, return receipt requested, or generally recognized overnight courier service.  Any notice will be deemed to be effective upon delivery.  Notice may be waived by mutual written consent of the parties.

13.9    Waiver.  Any waiver of any right or default hereunder shall be effective only in the instance given and shall not operate as or imply a waiver of any similar right or default on any subsequent occasion.

13.10    Entire Agreement.  This Agreement and all Appendices attached hereto constitute the entire agreement between the parties pertaining to the subject matter hereof and supersedes all prior and contemporaneous agreements, negotiations, and understandings, either written or oral.  This Agreement may be amended or modified only in a writing signed by both parties.

                            
APPENDIX B: Pubnet Service Level Agreement for BookNet Canada and its Canadian Trading Partners

Pubnet is a service of Company.

Pubnet Technical Support can be contacted via the details listed at www.pubnet.org 

1.    OVERVIEW

Company will maintain and support its services and applications in a consistent and clear manner.  

Company will make any changes to its applications accurately, under a controlled procedure and in a confined development and testing environment specifically maintained for this purpose.  The Customer and Company will work together to test any such changes prior to transfer to and running in a live environment. 

This document only covers proven and accepted software in the live environment and does not cover the support and troubleshooting of new software associated with any separately identifiable projects or any software running within a test environment.

2.    PROCEDURES & SERVICE LEVELS

2.1    Problem Reporting Procedure

Customers may report problems to the Pubnet Technical Support group via the details listed at www.pubnet.org

Retailer shall provide as much information about the problem as possible.  A Technical Support Specialist will contact the Retailer by either a return e-mail or a return phone call - or as otherwise requested by the Retailer - and will confirm that Pubnet has received and logged the problem and the Retailer's contact information.  There is not an automatic reply to Technical Support e-mail.

The Technical Support Specialist will work with the Retailer to resolve the problem.  If the problem cannot be resolved in a short period of time by phone or e-mail, the Technical Support Specialist will keep the Retailer informed as to progress.

When the problem has been resolved, the Retailer will be notified by e-mail and the call closed on Pubnet's records.

In the event that the problem involves other third party products and cannot be resolved by Pubnet, it may be passed to an outside third party specialist for resolution.  In such cases, the responsibility for administering and resolving the problem will remain with Pubnet but the service level provided cannot be any greater than that supplied by the third party or the telecom company.

2.2     Call Priority Commitments

The following are the Pubnet response commitments for answering calls and evaluating priority.  

Note:  "Response Time" is defined as the initial investigation of the problem and the gathering of any necessary data.  It is the initiation of the resolution and not necessarily the time it takes to fix the problem.

2.3    Problem Escalation Procedure
Problem escalation formally defines the procedure which is in place to identify high priority issues and make senior people aware so that additional resources, if necessary, can be used to help resolve an urgent problem.  This is for use on those occasions where a problem is significantly affecting the Retailer’s operation and the current action being taken does not appear to be producing a resolution quickly enough.

The table below identifies those people who will be contacted if a call has not been resolved by the elapsed time shown.

2.4    Pubnet Service Availability

Pubnet provides e-mail technical support from 7:00 A.M. to 6:30 P.M. (ET) and toll-free technical support from 9:30 A.M. to 6:30 P.M. (ET) Monday through Friday, excluding all United States holidays that fall between Monday to Friday.

In the case of peak call volume, the Retailer may be required to leave a message, which will be returned within two hours.

Company will use reasonable efforts to provide suitable and adequate staff to meet the requirements set out in this document and to meet service standards in accordance with good industry practices.  At the Retailer’s request and at Company’s discretion, Company staff may on occasions work outside normal business hours and in such cases Company reserves the right to bill Retailer additional charges at Company's standard commercial rates unless the matter was “urgent” or “very urgent” as set out in Section 2.3.  If there is a dispute as to whether it is “urgent” or “very urgent”, then Company and the Retailer will agree to abide by the decision of a panel consisting of a senior representative of each of BookNet Canada and Company.

The standard service and support is not provided in relation to any of the following:

(a)    Retailer access to Company’s staff outside of Pubnet normal business hours, except by prior arrangement.

(b)    Events due to the Retailer’s own operating practices that do not comport with Pubnet operating standards of which Retailer has been notified.

(c)    Events due to Force Majeure (as defined herein).

(d)    Software faults due to program upgrades carried out by either the Retailer’s staff or Retailer’s third party contractors. 

(e)    Retailer's use of any point of sale software that has not been certified for use by Company for use with the Pubnet Services.  Certified means the ability to connect to the Pubnet services and successfully exchange documents based on Pubnet's published specifications.

Any requirements in relation to the above will be subject to separate negotiation.

2.5    Service Quality

Company will take reasonable care to ensure that solutions to reported problems are provided in a timely manner and are carried out in accordance with good industry practices.  Wherever possible, Company will try to provide solutions which eliminate problems and reduce the risk of any re-occurrence.  Company monitors both the frequency and the nature of service problems and takes action to implement changes to reduce or eliminate recurring problems.

3.    SECURITY & DATA BACKUP

3.1    Security

The Retailer is solely responsible for protecting and authorizing all access to its systems and information.  The Retailer is responsible for using those security procedures which it deems reasonably sufficient to ensure that all Pubnet access, transmissions and other uses of the Pubnet Services are authorized.
The Retailer is responsible for maintaining the confidentiality of and controlling the use of its Pubnet user ID and password.

Company is not liable for the interception by improper means or the theft by persons, other than Company employees, agents or contractors, of transaction data carried on the Pubnet Services.  Company will ensure that the Pubnet Service is secure to a level consistent with general operating practice in EDI networks.

3.2    Data Backup

The Retailer is solely responsible for all data backups and archiving, and for performing all necessary data backups.  The Retailer is also responsible for the physical storage and safekeeping of all data backups.

Pubnet archives transaction information for a period of 6 months and can provide this archived information to the Retailer in the case of lost or corrupted backups.