ONLINE MERCHANT AGREEMENT
This ONLINE MERCHANT AGREEMENT ("Agreement") is made as of October 15,
1999, (the "Effective Date"), by and between iVillage Inc., a Delaware
corporation having its principal offices at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 ("iVillage"), and Xxxxxx.xxx, Inc., a Delaware ("Xxxxxx.xxx") having its
principal offices at 0000 Xxxxx Xxxxxx, Xxxxxx, Xxxxx 00000. Xxxxxx.xxx and
iVillage are sometimes referred to as the "Parties" and individually as a
"Party." Certain capitalized terms used in this Agreement are defined in
Section 1 or otherwise in this Agreement.
WHEREAS, iVillage operates a network of U.S. English language Web sites
that currently includes channels covering the leading topics of interest to
women, such as family, health, work and money, as well as interactive tools,
community elements and online commerce (the "iVillage Network"), and iVillage
desires to include on the iVillage Network further gardening content and
commerce services;
WHEREAS, Xxxxxx.xxx, via its Web site located at xxx.Xxxxxx.xxx (the
"Xxxxxx.xxx Web Site") is an online retailer of gardening and gardening related
products and desires to promote its products by maintaining a presence on the
iVillage Network during the term of this Agreement; and
NOW, THEREFORE, in consideration of the promises and the mutual covenants,
and premises hereinafter provided, iVillage and Xxxxxx.xxx agree as follows:
1. Definitions.
A. "Confidential Information" shall be defined as (a) any material
non-public information, communication or data, in any form and (b)
Garden.com-branded promotional elements, including, but not limited to banner
advertisements and buttons, prior to publication.
B. "Xxxxxx.xxx Products" shall be defined as Gardening Products sold by
Xxxxxx.xxx.
C. "Gardening Products" shall be defined as the gardening and gardening
lifestyle products , including, without limitation, plants, bulbs, seeds,
shrubs, cut flowers, Christmas trees, wreaths, outdoor furniture, lawn and patio
accessories, gardening tools, garden inspired gifts and similar or related
products offered by Xxxxxx.xxx during the term of this Agreement.
D. "Impression" shall be defined as a text or graphical link enabling the
user to link to a mutually agreed upon destination URL.
E. "iVillage Home Page" shall be defined as the Web page found at the URL
xxx.xxxxxxxx.xxx.
F. "Gardening Retailer" shall be defined as an entity, a primary portion
of whose business is the retail sale of Gardening Products.
G. "Page View" shall be defined as a single viewing of a Web site page,
whether or not the viewer acts on an advertisement located on that page.
H. "Shopping Channel Don't Miss Sponsors Special Box" shall be defined as
a 120x90 pixel button placed within the iVillage Shopping Channel in a location
comparable to that offered to other iVillage Shopping Channel sponsors.
2. Obligations of the Parties.
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A. iVillage's Obligations. During the term of this Agreement, iVillage
agrees to provide Xxxxxx.xxx with the following:
(i) Exclusivity. Xxxxxx.xxx shall be the exclusive Gardening Retailer
and the exclusive promoter of Gardening Products on the iVillage Home Page.
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(ii) Banner Advertisement Development. During each twelve (12) month
period during the term of this Agreement, iVillage shall design and deliver
eight (8) to ten (10) Garden.com-branded HTML banner advertisements, which shall
be placed within the iVillage Network as set forth herein. Xxxxxx.xxx shall
have the opportunity to provide creative elements for inclusion within the
banner advertisements, as well as the opportunity to approve the banner
advertisements before launch of such to the public.
(iii) Placement within iVillage Shopping Channel. Xxxxxx.xxx shall be
featured within the iVillage Shopping Channel as follows: (a) a
Garden.com-branded 88x31 pixel logo shall be placed on the front page (which
shall be rotated with third party logos); (b) a permanent Xxxxxx.xxx branded
text link and a 88x31 pixel Garden.com-branded logo (which shall be rotated with
third party logos) shall be placed within the Home & Garden sub-category of the
Shopping Channel; (c) in iVillage's discretion, inclusion within "Nicole's
Finds", "Nicole's Choices" and the "Gifts" areas (which shall be rotated with
third parties); (d) inclusion within the Shopping Channel Don't Miss Sponsor
Special Box, which shall be rotated with third parties; (e) inclusion within the
"Gift Page" area (which shall be rotated with third parties); and (f), inclusion
within seasonal promotions, such as Valentine's Day, Mothers' Day and the
"Holiday Gift Guides" area, in the form of text links and/or Xxxxxx.xxx branded
logos which would rotate with third party logos.
(iv) Promotion within other iVillage Channels. Xxxxxx.xxx shall be
featured as a permanent text link within the "iVillage Stores" area of the
iVillage Home Page during the term of this Agreement with the exception of July
1 - September 30, 2000 and July 1- September 30, 2001. In addition, Xxxxxx.xxx
shall have the opportunity, with 60 days written notice, to require iVillage to
remove the permanent text link within the "iVillage Stores" area of the iVillage
Home Page for a period of no longer than one (1) calendar quarter in each
calendar year during the term of this Agreement. Both parties shall mutually
agree on how the impressions that would have been delivered on the iVillage Home
Page shall be reallocated throughout the iVillage network.
(v) Impressions. iVillage shall deliver to Xxxxxx.xxx, a minimum of
[*] Impressions which shall appear in the form of permanent placements within
the iVillage Network as described in Section 2.(iii) and Section 2.(iv), as well
as banner advertisements, buttons, "Don't Miss Sponsor Special" text mentions,
newsletter integration and Shopping Channel Don't Miss
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* Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
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Sponsors Special Boxes, which shall all link directly to the Xxxxxx.xxx Web
Site, unless otherwise mutually agreed upon by the parties. [*] impressions
shall be delivered between the Effective Date and [*] and [*] Impressions shall
be delivered between [*]. iVillage shall not allocate more than [*] of the
total Impressions to be delivered by iVillage and placed on the iVillage Home
Page, and any delivery of Impressions which appear on the iVillage Home Page
in excess of [*], shall be delivered to Xxxxxx.xxx without additional charge.
In the event that iVillage delivers less than [*] Impressions by [*], then
Xxxxxx.xxx shall be entitled to withhold payment of each subsequent monthly
payment until iVillage has delivered such [*] Impressions. In the event that
iVillage delivers less than [*] Impressions by [*], then Xxxxxx.xxx shall have
the right to terminate this Agreement upon 30 days prior written notice.
(vi) Sweepstakes. iVillage shall develop and execute three (3)
Garden.com-branded customized turn-key sweepstakes. In addition to the
Impressions to be delivered to Xxxxxx.xxx pursuant to Section 2.A.(vii),
iVillage shall deliver to Xxxxxx.xxx, [*] co-branded Impressions which shall
be placed throughout the iVillage Network, and which shall serve to promote
the aforementioned sweepstakes. Each sweepstakes shall be promoted with [*]
Impressions. All prizes to be distributed pursuant to the sweepstakes shall be
mutually determined by the parties and shall be provided by Xxxxxx.xxx.
During the term of this Agreement, Xxxxxx.xxx shall also have the opportunity
to participate in other relevant sponsorships developed by iVillage.
(vii) Polls. iVillage shall conduct and administer approximately
thirty (30) online polls to be placed within the iVillage Network, with
questions to be mutually agreed upon by the parties.
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* Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
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B. Xxxxxx.xxx's Obligations. During the term of this Agreement,
Xxxxxx.xxx agrees to provide iVillage with the following:
(i) Upon linking from the iVillage Network to the Xxxxxx.xxx Web
Site, the Xxxxxx.xxx Web Site shall incorporate iVillage navigation (the
"Frame") which shall include, at a minimum, a "Back to iVillage" button, an
iVillage "Join Free" button and an area where the user shall have an opportunity
to sign up for an iVillage newsletter. The Frame shall be displayed
continuously, as the user navigates throughout the Xxxxxx.xxx Web Site. The
frame shall be mutually agreed to and developed by the parties, and thereafter,
neither party will edit, modify nor obfuscate the Frame in any manner unless
mutually agreed upon by both parties.
(ii) Xxxxxx.xxx shall provide, no less frequently than twice monthly,
special offers of Xxxxxx.xxx Products ("Special Offers") which shall be
available to iVillage Network users, and which shall appear each time an
iVillage Network user links to the Xxxxxx.xxx Web Site from the iVillage
Network. Xxxxxx.xxx agrees to use best efforts to ensure that the Special
Offers are exclusive to iVillage members. The Special Offers shall be
distinctive offerings and shall appear in a form mutually determined by the
parties and shall appear as a "pop up" window (of a size not less than 250x250
pixels) unless mutually agreed upon by both parties. Xxxxxx.xxx shall use its
reasonable best efforts to provide iVillage, at least thirty (30) days in
advance of promotion of any such Special Offer on the Xxxxxx.xxx Web Site, a
description of the Special Offer to be promoted to iVillage Network members.
iVillage must receive all artwork and editorial text associated with the Special
Offer to be promoted at least five (5) business days in advance of the promotion
of such Special Offer. If the iVillage user who links to the Special Offer is
not an iVillage member, then the "pop-up" window shall contain a link mutually
agreed upon by the parties (e.g. a "Join Now" link) that will enable the user to
register to become an iVillage member by linking to the appropriate area of the
iVillage Network or a similar area to be mutually agreed upon by the parties.
If the user becomes a member, the member shall be returned to the Xxxxxx.xxx Web
Site where the member will then be able to purchase the Special Offer. If the
individual is already an iVillage member, the "pop-up" window shall contain a
"Buy Now" or similar link enabling the member to purchase the Xxxxxx.xxx Product
on the Xxxxxx.xxx Web Site. Both parties agree to work together to ensure
dynamic generation of the "pop-up" window through the use of 'cookies' or
similar technology, but in no instance will the iVillage user be required to
register as a member of
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the iVillage Network in order to continue to shop at the Xxxxxx.xxx Web Site.
In all cases, the iVillage user must be an iVillage member to be able to
purchase the Special Offer.
(iii) Xxxxxx.xxx shall continue to display and implement on the
Xxxxxx.xxx Web Site its privacy policy as such is in effect from time to time.
(iv) [*]
C. Mutual Obligations of the Parties.
(i) During the term of this Agreement and subject to each party's
terms of service, retail strategy and privacy policy as they exist from time to
time, the parties agree to work together on a reasonable best efforts basis to
develop a program to enable users of the iVillage Network to execute
transactions on the Xxxxxx.xxx Web Site on a "One Click Basis", whereby a "One
Click Basis" shall mean the ability for a user of the iVillage Network to click
on a "Click to Buy" or similar link promoting a Xxxxxx.xxx Product on the
iVillage Network (entitled "Click to Buy" or similar language), which would
directly guide the user to a page where all relevant information required to
purchase the product has been pre-populated and the user may click on a
pre-determined link to consummate the desired transaction.
(ii) iVillage will negotiate exclusively with Xxxxxx.xxx through
[*], regarding the co-development and sponsorship of a "Garden" area within a
proposed iVillage "Home & Garden Channel", which iVillage anticipates shall be
to be launched to the public on or before [*].
3. Legal Compliance. Both parties shall operate their respective Web sites
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and services in compliance with all applicable laws and regulations and each
will be solely responsible for
_______________
* Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
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obtaining all required governmental authorizations necessary for the full
performance of its services as provided for under this Agreement.
4. Maintenance. Each Party shall monitor and periodically test the general
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availability and operation of its Web site and shall seek to ensure its
availability at least ninety-eight percent (98%) of the time during each
calendar month, without taking into account a reasonable amount of scheduled
downtime for periodic system maintenance and back-up.
5. Customer Service, Fulfillment. Xxxxxx.xxx shall be solely responsible
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for the Xxxxxx.xxx Web Site including customer service for users linking to the
Xxxxxx.xxx Web Site through the iVillage Network, product support, quality and
availability of Xxxxxx.xxx Products, fulfillment of orders and returns.
Xxxxxx.xxx shall ensure that all users of the Xxxxxx.xxx Web Site placing an
order for Xxxxxx.xxx Products are timely advised of the status of such
purchase(s) including the timely confirmation of all orders. Xxxxxx.xxx shall
be solely responsible for (a) fulfilling all orders for its Xxxxxx.xxx Products
and (b) calculating, collecting and paying all appropriate taxes associated with
payment processing. The Xxxxxx.xxx Products offered via the iVillage Network
will be supported by the same warranty and return policy for the Xxxxxx.xxx
Products as offered through other Xxxxxx.xxx channels.
6. Reporting. Xxxxxx.xxx shall track sales of the Xxxxxx.xxx Products from
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the iVillage Network through a uniform resource locator and shall provide
iVillage with monthly reports in a form reasonably satisfactory to iVillage, no
later than fifteen (15) days following the end of each month of the term of this
Agreement. Such reports shall include, at a minimum, Page View traffic
generated from the iVillage Network, including from the iVillage Home Page to
the Xxxxxx.xxx Web Site, as well as the number of unique users, number of daily
orders, total revenue and average revenue per order.
7. Compensation.
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A. Initial Fee. Xxxxxx.xxx agrees to pay iVillage, upon signing of this
Agreement, an upfront, development, production and set up fee in the amount of
[*].
_______________
* Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
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B. Monthly Fee. In addition, during the term of this Agreement,
Xxxxxx.xxx shall pay iVillage an additional [*], which shall be due on or before
the first day of each month during the term of this Agreement. The first monthly
payment shall be due on or before November 1, 1999.
C. For purposes of this Agreement, the term "Cumulative Amount" shall mean
those amounts actually paid by Xxxxxx.xxx to iVillage inclusive of payments
described in Sections 7.A. and 7.B., as applicable. If this Agreement is
terminated pursuant to Section 8.A. or Section 2.A.(v), the total payment due
iVillage from Xxxxxx.xxx, shall be adjusted to indicate the number of
Impressions actually delivered to Xxxxxx.xxx during the term of this Agreement
(the "Adjusted Total Payment") and shall be calculated as follows: [*].
D. Commencing on the first day after the date that each of the
aforementioned payments are due, Xxxxxx.xxx shall be liable for a monthly rate
of interest of not more than 1-1/2%, which interest shall be in addition to such
fees due and owing to iVillage. All payments made via wire transfer should be
directed as follows: Chase Manhattan Bank, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000; Account name: iVillage Inc.; ABA#: 000000000; Account #: 020-923406;
Reference: Xxxxxx.xxx. All payments made via check, should be sent to: iVillage
Inc., 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; Attention: Accounts
Receivable.
E. To the extent any of the abovementioned fees owing to iVillage are
outstanding, this Section 7.D. shall survive termination of this Agreement until
such fee has been paid to iVillage.
8. Term and Termination.
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A. The term of this Agreement shall commence on the Effective Date and
shall continue until June 30, 2002, unless terminated earlier as set forth
herein. For a period of not more than
_______________
* Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
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thirty (30) days which shall commence on or about one hundred twenty (120) days
prior to the expiration of the term of this Agreement, the parties shall
negotiate in good faith, a possible renewal of this Agreement and the terms and
conditions surrounding such. In the event that both parties do not reach
agreement regarding the co-development and sponsorship of a "Garden" area of a
proposed "Home and Garden" channel as described in Section 2C(ii) (the "Home and
Garden Agreement"), either party may terminate this Agreement by providing the
other party, with written notice of such termination by December 15, 1999. Such
termination to be effective January 1, 2000.
B. In the event of a material breach by either Party of any term of this
Agreement, the non-breaching Party may terminate this Agreement by written
notice to the breaching Party if the breaching Party fails to cure such material
breach within thirty (30) days of receipt of written notice thereof. In
addition, either Party may terminate this Agreement effective upon written
notice stating its intention to terminate in the event the other Party (i)
ceases to function as a going concern or to conduct operations in the normal
course of business, or (ii) has a petition filed by or against it under any
state or federal bankruptcy or insolvency law which petition has not been
dismissed or set aside within ninety (90) days of its filing.
9. Ownership. All intellectual or proprietary property and information,
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supplied or developed by either Party shall be and remain the sole and exclusive
property of the Party who supplied or developed same. Upon termination of this
Agreement and upon written request, the Party in receipt of the requesting
Party's intellectual or proprietary property and/or information pursuant to this
Agreement shall return such information to the requesting Party.
10. Publicity. iVillage and Xxxxxx.xxx agree to work together to draft a
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press release describing the relationship set forth herein,. The parties will
mutually agree upon the timing of such release and shall mutually determine
whether to wait until consummation of the Home & Garden Agreement before making
the release. The press release and any quotes from each Party's sources must be
promptly approved by the public relations department of the other Party (unless
otherwise required to be disclosed to a government or administrative agency)
within not more than three (3) business days upon receipt from the other Party
of such press release and/or quotes. Each Party must also be made aware of any
pre-briefings with outside parties at least five (5) days in
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advance of any pre-briefing. Notwithstanding the foregoing, this Section shall
not restrict either Party from complying with any governmental or administrative
order or requirement (including any SEC filing requirements), so long as the
party consults with the other party and attempts to address any good faith,
confidentiality and other concerns/objections raised by each party.
11. Licenses.
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A. Xxxxxx.xxx grants to iVillage, during the term of this Agreement, a
royalty-free, non-exclusive, worldwide license to display, (i) Xxxxxx.xxx's
tradenames, trademarks, service marks and logos (collectively, the "Xxxxxx.xxx
Marks") in connection with this Agreement; and (ii) certain content and other
material mutually determined by the parties (collectively, the "Xxxxxx.xxx
Material"), for placement within the iVillage Network, as set forth herein.
Except as set forth herein, no right, title, license, or interest in any
Xxxxxx.xxx Marks or Xxxxxx.xxx Material owned by Xxxxxx.xxx or any of its
affiliates is intended to be given to or acquired by iVillage by the execution
of or the performance of this Agreement. iVillage shall not use the Xxxxxx.xxx
Marks or the Xxxxxx.xxx Material for any purpose or activity except as expressly
authorized or contemplated herein. iVillage acknowledges that Xxxxxx.xxx is the
sole and exclusive owner of all trademarks, service marks, copyrights and other
intellectual property of any kind in the Xxxxxx.xxx Marks and the Xxxxxx.xxx
Material. iVillage agrees that (i) it shall do nothing inconsistent with such
ownership either during the term of the Agreement or afterwards; (ii) it shall
use the Xxxxxx.xxx Marks or the Xxxxxx.xxx Material in a manner that does not
deviate from Xxxxxx.xxx's rights in the Xxxxxx.xxx Marks; and (iii) it shall
take no action that shall interfere with or diminish Xxxxxx.xxx's right in the
Xxxxxx.xxx Marks.
B. iVillage grants to Xxxxxx.xxx, during the term of this Agreement, a
royalty-free, non-exclusive, worldwide license to display iVillage's tradenames,
trademarks, service marks and logos (collectively, the "iVillage Marks") as is
reasonably necessary to establish and promote the links to the iVillage Network,
provided, however, that any use of the iVillage Marks will be subject to
iVillage's prior written approval. Except as set forth herein, no right, title,
license, or interest in any iVillage Marks owned by iVillage or any of its
affiliates is intended to be given to or acquired by Xxxxxx.xxx by the execution
of or the performance of this Agreement. Xxxxxx.xxx shall not use the iVillage
Marks for any purpose or activity except as expressly authorized or contemplated
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herein. Xxxxxx.xxx acknowledges that iVillage is the sole and exclusive owner of
all trademarks, service marks, copyrights and other intellectual property of any
kind in the iVillage Marks. Xxxxxx.xxx agrees that (i) it shall do nothing
inconsistent with such ownership either during the term of the Agreement or
afterwards; (ii) it shall use the iVillage Marks in a manner that does not
deviate from iVillage's rights in the iVillage Marks; and (iii) it shall take no
action that shall interfere with or diminish iVillage's right in the iVillage
Marks.
12. Submissions. iVillage must receive all Xxxxxx.xxx submissions at least
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five (5) business days prior to the scheduled date of publication for each
relevant graphic (GIF) file, or file of such other format as iVillage may
designate from time to time, supplied by Xxxxxx.xxx to be published by iVillage
on the iVillage Network and which may contain a link to Xxxxxx.xxx Web site or
to a Web site specified by Xxxxxx.xxx or any and all information and items
necessary for iVillage's publication of any material supplied by Xxxxxx.xxx,
including changes and updates thereto (collectively, "Xxxxxx.xxx Submissions"
and each, a "Xxxxxx.xxx Submission"). In the event iVillage does not receive a
Xxxxxx.xxx Submission prior to the applicable deadline, iVillage may publish in
substitution any prior Xxxxxx.xxx Submission until such time as iVillage can
reasonably begin publication of the promotion. If no such prior Xxxxxx.xxx
Submission is available, iVillage may publish in substitution, any material it
deems appropriate, in its sole discretion, until such time as iVillage can
reasonably begin publication of the promotion. All changes to and/or
cancellations of Xxxxxx.xxx Submissions must be made in writing or via e-mail
sent to xxx@xxxx.xxxxxxxx.xxx, and received by iVillage prior to the applicable
deadline. iVillage may, in its sole reasonable discretion, refuse at any time
any Xxxxxx.xxx Submission and/or publish any advertisement provided by
Xxxxxx.xxx which it determines to be offensive, profane, inflammatory or
otherwise not in conformance with the standards imposed by iVillage on its
merchant partners.
13. Representations, Warranties and Indemnification.
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A. iVillage represents and warrants that: (i) it is authorized to do
business under the rules of the state in which it is incorporated; (ii) it is
authorized to enter into this Agreement and to perform its obligations; (iii) it
has all required permits, licenses, and other governmental authorizations and
approvals; (iv) it shall comply with all local, state, federal, and
international
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laws and regulations in performing its obligations hereunder; and (v) the
services to be performed and the materials provided by it (a) do not infringe or
violate any patent, copyright, trade secret, trademark, or other proprietary
right, (b) do not violate any applicable law, statute, ordinance or regulation;
(c) are not knowingly defamatory or libelous; (d) are not lewd, pornographic or
obscene; (e) do not knowingly violate any laws regarding unfair competition,
antidiscrimination or false advertising; (f) do not promote violence or contain
hate speech; or (g) do not knowingly contain viruses, trojan horses, worms, time
bombs, cancelbots or other similar harmful or deleterious programming routines
and (h) are and will remain capable of correctly performing all functions,
calculations, comparisons, sequencing, displays and other processing of calendar
dates and date related data, before, during and after the year 2000, without
error or degradation of performance.
B. Xxxxxx.xxx represents and warrants that: (i) it is authorized to do
business under the rules of the state in which it is incorporated; (ii) it is
authorized to enter into this Agreement and to perform its obligations; (iii) it
has all required permits, licenses, and other governmental authorizations and
approvals; (iv) it shall comply with all local, state, federal, and
international laws and regulations in performing its obligations hereunder; and
(v) the services to be performed by it, the Xxxxxx.xxx Material, and the
materials provided by it (a) do not infringe or violate any patent, copyright,
trade secret, trademark, or other proprietary right; (b) do not violate any
applicable law, statute, ordinance or regulation; (c) are not knowingly
defamatory or libelous; (d) are not lewd, pornographic or obscene; (e) do not
knowingly violate any laws regarding unfair competition, antidiscrimination or
false advertising; (f) do not promote violence or contain hate speech; or (g) do
not knowingly contain viruses, trojan horses, worms, time bombs, cancelbots or
other similar harmful or deleterious programming routines; and (g) are and
will remain capable of correctly performing all functions, calculations,
comparisons, sequencing, displays and other processing of calendar dates and
date related data, before, during and after the year 2000, without error or
degradation of performance.
C. iVillage shall remain solely responsible for the operation of the
iVillage Network, and Xxxxxx.xxx shall remain solely responsible for the
operation of the Xxxxxx.xxx Web Site. Each Party (i) acknowledges that the
iVillage Network and the Xxxxxx.xxx Web Site may be subject to temporary
shutdowns due to causes beyond the operating Party's reasonable control, and
(ii) subject to the specific terms of this Agreement, retains sole right and
control over the programming, content and conduct of transactions over its
respective site or service. EACH PARTY SPECIFICALLY DISCLAIMS ANY
REPRESENTATION OR WARRANTY
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REGARDING (Y) THE AMOUNT OF SALES THAT XXXXXX.XXX MAY GENERATE DURING THE TERM
AND (Z) ANY ECONOMIC OR OTHER BENEFIT THAT THE OTHER PARTY MIGHT OBTAIN THROUGH
ITS PARTICIPATION IN THIS AGREEMENT.
D. iVillage agrees to indemnify, defend and hold harmless Xxxxxx.xxx and
its parent, subsidiaries, affiliates, successors and assigns from any and all
losses, liabilities, damages, actions, claims, expenses and costs (including
reasonable attorneys' fees) relating to a breach of this Agreement by iVillage
or (ii) iVillage's operations of the iVillage Network.
E. Xxxxxx.xxx agrees to indemnify, defend and hold harmless iVillage and
its parent, subsidiaries, affiliates, successors and assigns from any and all
losses, liabilities, damages, actions, claims, expenses and costs (including
reasonable attorneys' fees) relating to (i) a breach of this Agreement by
Xxxxxx.xxx, or (ii) the use or purchase of any Xxxxxx.xxx Product.
F. In connection with any claim or action described in this Section 13,
the Party seeking indemnification (i) will give the indemnifying Party prompt
written notice of the claim, (ii) will cooperate with the indemnifying Party (at
the indemnifying Party's expense) in connection with the defense and settlement
of the claim, and (iii) will permit the indemnifying Party to control the
defense and settlement of the claim, provided that the indemnifying Party may
not settle the claim without the indemnified Party's prior written consent
(which will not be unreasonably withheld). Further, the indemnified Party (at
its cost) may participate in the defense and settlement of the claim.
14. Confidentiality. Other than as required or appropriate for securities
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laws disclosure (in which case the partner shall consult with one another over
the breadth and scope of the required disclosure), iVillage and Xxxxxx.xxx agree
to keep in confidence, all Confidential Information. All Confidential
Information shall remain the sole property of the disclosing Party and its
confidentiality shall be maintained and protected by the receiving Party with at
least the same degree of care as the receiving Party uses for the protection of
its own confidential and proprietary information. The receiving Party shall not
disclose such Confidential Information to any third party. These restrictions
shall not apply to any Confidential Information: (v) after it has become
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generally available to the public without breach of this Agreement by the
receiving Party; (w) is rightfully in the receiving Party's possession before
disclosure to it by the disclosing Party; (x) is independently developed by the
receiving Party; (y) is rightfully received by the receiving Party from a third
party without a duty of confidentiality; or (z) is required to be disclosed
under operation of law or administrative process. Upon expiration or
termination of this Agreement for any reason, Xxxxxx.xxx will promptly and at
the direction of iVillage, either destroy or return to iVillage, and will not
take or use, all items of any nature which belong to iVillage and all records
(in any form, format or medium) containing or relating to Confidential
Information.
15. Limitation of Liability. NEITHER PARTY SHALL HAVE ANY LIABILITY FOR ANY
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INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT
LIMITATION, LOSS OF PROFIT OR BUSINESS OPPORTUNITIES, WHETHER OR NOT THE PARTY
WAS ADVISED OF THE POSSIBILITY OF SUCH. EXCEPT AS EXPRESSLY SET FORTH HEREIN,
NEITHER PARTY MAKES ANY, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS ANY
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SERVICES
CONTEMPLATED BY THIS AGREEMENT, INCLUDING ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES
ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
16. Miscellaneous Provisions.
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A. Nothing in this Agreement shall imply any partnership, joint venture or
agency relationship between the parties and neither party shall have the power
to obligate or bind the other except for what is stated in this Agreement.
B. The following sections shall survive termination or expiration of this
Agreement: 1, 6, 7.E., 9, 13, 14, 15 and 16.
C. Except as otherwise expressly provided in this Agreement, neither party
shall be liable for any breach of this Agreement for any delay or failure of
performance resulting from any cause beyond such party's reasonable control,
such as: weather, strikes or labor disputes, war, terrorist
14
acts, riots or civil disturbances, government regulations, acts of civil or
military authorities, or acts of God provided the party affected takes all
reasonably necessary steps to resume full performance.
D. This Agreement constitutes the binding agreement between the parties,
represents the entire agreement between the parties and supersedes all prior
agreements relating to what is stated in this Agreement and any changes to this
Agreement must be in writing and signed by both parties.
E. The rights granted under this Agreement to Xxxxxx.xxx shall be
applicable to iVillage existing Web sites and shall not apply to any future
acquisition by iVillage of Web sites or content, joint ventures or similar
business combinations, so long as such acquisition does not materially and
adversely affect iVillage's fulfillment of its obligations hereunder.
F. This Agreement shall be governed by the laws of the State of New York
without regard to the conflicts of laws principles thereof.
G. Neither party shall sell, transfer or assign this Agreement or the
rights or obligations hereunder, without the prior written consent of the other
party, such consent not to be unreasonably withheld or delayed.
H. All notices and requests in connection with this Agreement shall be
deemed given as of the day they are received either by messenger, delivery
service, or in the United States mails, postage prepaid, certified or
registered, return receipt requested, or sent by overnight courier with charges
prepaid and a confirming fax and address as follows:
If to iVillage:
-----------------
iVillage Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: General Counsel
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If to Xxxxxx.xxx:
------------------
Xxxxxx.xxx, Inc.
0000 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Finance
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first above written.
XXXXXX.XXX, INC. IVILLAGE INC.
Xxx X'Xxxxxxx Xxxxxx X. Xxxxx
------------------------ -------------------------------
(Name) (Name)
Director Online Marketing Senior Vice President
------------------------ -------------------------------
(Title) (Title)
10/15/99 10/15/99
------------------------ -------------------------------
(Date) (Date)
/s/ Xxx X'Xxxxxxx /s/ Xxxxxx X. Xxxxx
------------------------ -------------------------------
(Signature) (Signature)
16
