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FORM OF FLORISTS' ONLINE HOSTING AGREEMENT

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Florists? Transworld Delivery, Inc | ftd.com inc

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Title: FORM OF FLORISTS' ONLINE HOSTING AGREEMENT
Governing Law: Illinois     Date: 3/22/2004
Industry: RTNONA     Sector: SERVIC

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Form of Florists' Online Hosting Agreement between FTDI and FTD.com

EXHIBIT 10.18

 

FLORISTS ONLINE HOSTING AGREEMENT

 

This Florists Online Hosting Agreement (this “Agreement”) is being entered into as of the              day of June, 1999 and is entered into by and between Florists’ Transworld Delivery, Inc., a Michigan corporation (“FTDI”), and ftd.com inc., a Delaware corporation (“ftd.com”).

 

RECITALS

 

A. Historically, FTDI was engaged directly in, among other things, the business of offering consumers the opportunity to place floral and specialty gift orders directly with FTDI through its toll free telephone number (1-800-SEND-FTD) and its Web site (www.ftd.com) (the “Direct Access Business”).

 

B. Historically, using its Web site, FTDI offered various online hosting services for its Internet program, FTD Florists Online, located at www.ftd.com.

 

C. Recently, FTDI formed ftd.com as a subsidiary of FTDI and, pursuant to the Formation Agreement, dated as of May 19, 1999, between FTDI and ftd.com (the “Formation Agreement”), transferred substantially all of FTDI’s assets, rights and interests relating to the Direct Access Business to ftd.com, including FTDI’s Web site.

 

D. In connection with FTDI’s operation of FTD Florists Online, FTDI desires to obtain various online hosting services (“Services”) from ftd.com, and ftd.com desires to provide such Services to FTDI.

 

THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:

 

Section 1. Services.

 

(a) ftd.com shall provide, directly, through its subsidiaries or through a third party vendor reasonably satisfactory to FTDI, the services described on Exhibit A hereto, at the cost specified and on the other terms and conditions set forth on Exhibit A.

 

(b) In the event that FTDI requests services that exceed the scope or extent of the Services provided for herein, and if ftd.com agrees to provide such services, ftd.com and FTDI will negotiate in good faith the terms and conditions, including price, under which ftd.com will provide such Services; provided, however, that the terms and conditions, including price, upon which ftd.com will provide those Services to FTDI shall be no less favorable to FTDI than the terms and conditions, including price, upon which ftd.com provides comparable services to unaffiliated third parties.

 


Section 2. Compensation.

 

FTDI will pay to ftd.com when due a fee for each of the Services equal to the amount described in Exhibit A hereto relating to such Service, provided that in the event FTDI terminates any Service in accordance with Section 3 hereof, the fee for such Service shall cease to accrue on and after the effective date of such termination. Late payments shall accrue interest at a rate equal to ftd.com’s average cost of borrowings at the end of ftd.com’s most recent fiscal quarter plus 200 basis points.

 

Section 3. Term.

 

(a) The term of this Agreement shall begin on the date hereof (the “Effective Date”) and shall continue for a period of 12 months in full force and effect until it is terminated in accordance with this Section 3 and shall be automatically renewed for like periods of 12 months unless notice of election not to renew is given by either party at least 90 days prior to the commencement of any renewal period.

 

(b) ftd.com shall have the right (but not the obligation) to terminate this Agreement and the rights granted to FTDI hereunder if:

 

(i) FTDI is in material breach of any of its obligations hereunder, which breach is not cured within 20 days of receipt of written notice from ftd.com of such breach;

 

(ii) FTDI is the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation or composition for the benefit of creditors, if such petition or proceeding is not dismissed within 90 days of filing, or becomes the subject of any involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation or composition for the benefit of creditors, if such petition or proceeding is not dismissed within 90 days of filing;

 

(iii) FTDI involuntarily dissolves or is dissolved; or

 

(iv) FTDI is judicially adjudicated insolvent or generally is unable to pay its debts as they mature or makes an assignment for the benefit of its creditors.

 

(c) FTDI shall have the right (but not the obligation) to terminate this Agreement and the rights granted to ftd.com hereunder if:

 

(i) ftd.com is in material breach of any of its obligations hereunder, which breach is not cured within 20 days of receipt of written notice from FTDI of such breach;

 

(ii) ftd.com is the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation or composition for the benefit of creditors, if such petition or proceeding is not dismissed within 90 days of filing, or becomes the subject of any involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation or composition for the benefit of creditors, if such petition or proceeding is not dismissed within 90 days of filing;

 

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(iii) ftd.com involuntarily dissolves or is dissolved; or

 

(iv) ftd.com is judicially adjudicated insolvent or generally is unable to pay its debts as they mature or makes an assignment for the benefit of its creditors.

 

(d) FTDI will have the right (but not the obligation) to terminate this Agreement and the rights granted to ftd.com hereunder, upon 90 days written notice to ftd.com, following the acquisition of the beneficial ownership of at least 20% (the “Threshold”) of the voting power represented by the voting securities of ftd.com, any successor thereto or any Permitted Assignee (as defined in Section 9(a) of this Agreement) by any person or “group” within the meaning of Sections 13(d)(3) and 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or any successor provision to either of the foregoing, including any group acting for the purpose of acquiring, holding or disposing of securities within the meaning of Rule 13d-5(b)(1) under the Exchange Act or any successor provision thereof (a “group”) other than FTD Corporation, a Delaware corporation (“FTDC”), any affiliate of FTDC, FTDI or any affiliate of FTDI. For purposes of this Agreement, (i) the term “beneficial ownership” shall have the meaning set forth in Rule 13d-3 of the Exchange Act or any successor provisions thereof, (ii) the term “voting securities” means the Class A Common Stock, par value $.01 per share, and Class B Common Stock, par value $.01 per share, of ftd.com and any other securities issued by ftd.com having the power to vote generally in the election of directors of ftd.com and (iii) the term “affiliate” means a person or entity directly or indirectly controlled by, controlling or under common control with another person. For purposes of this Section 3, an acquisition shall not include (A) the acquisition by a person of voting securities of ftd.com pursuant to an involuntary disposition by FTDI through foreclosure or similar event or (B) the acquisition by a person of voting securities of ftd.com pursuant to a dividend intended to be on a tax-free basis (a “Tax-Free Spin-Off”) under the Internal Revenue Code of 1986, as amended from time to time, but shall include a subsequent acquisition of voting securities pursuant to a disposition by the person that acquired the voting securities in such involuntary disposition or such Tax-Free Spin-Off. In the event any person acquires beneficial ownership of voting power in excess of the Threshold as a result of a transaction described in the immediately preceding sentence, the Threshold with respect to such person shall be adjusted to an amount equal to the percentage of beneficial ownership held by such person immediately following such transaction.

 

(e) A party may exercise its right to terminate pursuant to this Section 3 by sending appropriate written notice to the other party. No exercise by a party of its rights under this Section 3 will limit its remedies by reason of the other party’s default, the party’s rights to exercise any other rights under this Section 3, or any of that party’s other rights.

 

Section 4. Records and Accounts.

 

ftd.com will maintain accurate books, records and accounts of all transactions relating to the Services performed by it pursuant to this Agreement. FTDI may, at its own expense, examine and copy those books and records as provided in this Section 4. Such books, records and accounts will be maintained in a manner that allows FTDI to separate these matters from those relating to ftd.com’s other operations. Such books, records and accounts will reflect such

 

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information as would normally be examined by an independent accountant in performing an audit pursuant to United States generally accepted auditing standards for the purpose of certifying financial statements, and to permit verification thereof by governmental agencies. FTDI may make examinations pursuant hereto during ftd.com’s usual business hours, and at the place in the continental United States where ftd.com regularly keeps these books and records. FTDI will be required to notify ftd.com at least two business days before the date of planned examination. If FTDI’s examination is not completed within two months from commencement, ftd.com at any time may require FTDI to terminate such examination on seven days’ notice to FTDI, provided that ftd.com has cooperated with FTDI in the examination of such books and records.

 

Section 5. No Restrictions.

 

Nothing in this Agreement shall limit or restrict the right of any of FTDI’s directors, officers or emp

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