* Confidential treatment has been requested for certain portions of this
exhibit.
This ("Agreement") is entered into as of
October 30, 1998 (the "Effective Date") by and between Xxxxxxx Purina Company, a
Missouri corporation ("Xxxxxxx") with offices at Xxxxxxxxxxxx Xxxxxx, Xx. Xxxxx,
XX 00000 and iVillage, Inc., a Delaware corporation, ("iVillage") with offices
at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. Xxxxxxx and iVillage may be
referred to generically as a "Party", or collectively as "Parties".
WHEREAS, iVillage operates a site on the World Wide Web and America
OnLine (the "Network"), which contains channels including Parent Soup,
ParentsPlace, Better Health and Armchair Millionaire as well as career, fitness
& beauty, food, relationships and work from home channels and plans to develop
an area devoted to pets and to provide its users with an opportunity to purchase
pet related products.
WHEREAS, Xxxxxxx seeks to enhance the brand awareness and brand
affinity of its products to the demographic population of iVillage: The Women's
Network and to provide pet-related content to iVillage.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, iVillage and Xxxxxxx hereby agree
as follows:
1. Term and Termination.
---------------------
A. Term. The term of this Agreement shall be for a period of two (2)
years to commence on the Effective Date (the "Initial Term"), unless terminated
earlier as provided herein. Prior to the expiration of the Initial Term, the
Parties agree to discuss in good faith, an extension of the Initial Term for an
additional two (2) year period (the "Renewal Term"). If, prior to sixty (60) but
no more than ninety (90) days before the expiration of the Initial Term,
iVillage receives a bona fide offer from a third party to be the exclusive
sponsor of cat and dog foods, cat and dog treats, litter box filters and related
products on financial terms more advantageous to iVillage than those stated in
Section 4 herein and provides Xxxxxxx with notice of such offer, Xxxxxxx must
notify iVillage in writing within thirty (30) days of receiving such notice
whether it is willing to amend the Agreement to match the financial terms
offered by such third party for the Renewal Term. If Xxxxxxx does not notify
iVillage that it is willing to amend the financial terms of the Agreement for
the Renewal Term within thirty (30) days of receiving such notice, then iVillage
shall have fifteen (15) days thereafter to give Xxxxxxx written notice to
terminate this Agreement at the end of the Initial Term and may then enter into
an agreement with such third party on the amended terms offered to Xxxxxxx.
B. Termination. 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 sixty (60) days of its filing. In the event that
Xxxxxxx does not provide substantially all of the Xxxxxxx Content set forth in
Section 3. within sixty (60) days after the Effective Date, iVillage may
terminate this Agreement upon written notice to Xxxxxxx.
2. iVillage's Obligations.
-----------------------
A. iVillage agrees to design, develop, host and operate an area within
the Network initially to be devoted to the subject matter of cats and dogs
("Pets") which may include the following material and community tools as
provided by iVillage or licensed from a third party:
(i) Pet Name Finder
(ii) gift reminder service
(iii) gift recommender tool
(iv) Pet care taker instruction
(v) message boards on Pet related topics
(vi) daily polls on Pet related topics
(vii) Pet home pages
(viii) featured pet story of the week with possible
celebrity pet featured
(ix) Pet pictures
(x) products/Pet food reviews by iVillage members
B. iVillage will also design, develop, host and operate a free-standing
online pet store (the "Pet Store") which may provide iVillage users with an
opportunity to purchase Pet products online and which shall include the
following material and community tools as provided by iVillage or licensed from
a third party:
(i) products/Pet food reviews by iVillage members
(ii) puppy/kitten starter kits
(iii) sampling
(iv) products such as: Pet food, cat litter, Pet treats
and snacks, Pet accessories, gift packages for
holidays and events, and other products as determined
mutually by iVillage and Xxxxxxx
(v) additional marketing and communications efforts
specific to the Pet Store such as links with content
and community Web sites, manufacturers and other
commerce sites.
C. In addition, iVillage may provide the following marketing efforts:
(i) Pet related newsletters
(ii) Pet Store promotion throughout the Network
(iii) online distribution and "key word" buys
D. iVillage shall maintain full editorial control over the Pet Area and
the Pet Store, and iVillage and Xxxxxxx will mutually agree to the content and
look and feel of the Pet Area and Pet Store. iVillage agrees that it will not
take any action or display any materials or information which will, in the
reasonable judgment of Xxxxxxx, adversely affect the name, reputation or
goodwill of Xxxxxxx and/or its products in any way. In the event Xxxxxxx
reasonably determines that iVillage has violated the foregoing obligation, and
if iVillage does not remove or replace
such violating material within one (1) business day of receiving notice from
Xxxxxxx of such violation, Xxxxxxx may immediately terminate this Agreement upon
written notice to iVillage.
3. Xxxxxxx'x Obligations.
----------------------
X. Xxxxxxx agrees to provide all mutually agreed upon content, experts
and customer service (collectively the "Xxxxxxx Content") found within the
Xxxxxxx Web sites ("Xxxxxxx Web Sites") to iVillage, including, but not limited
to the following material for use within the Pet Area:
(i) general Pet care and feeding information
(ii) frequently asked questions regarding Pet care
(iii) puppy/kitten starter check lists
(iv) food selector based on Pet type, age, etc.
(v) veterinary/Pet health experts
(vi) Pet care technology experts
B. Marketing:
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(i) Xxxxxxx will provide links, in a form to be
determined by the Parties, from the Xxxxxxx Web Sites
to the Network and to other Web sites as determined
by the Parties
(ii) Xxxxxxx will make good faith efforts to communicate
information about the Pet Area and Pet Store on
iVillage to Xxxxxxx'x web site guest registrants and
to Xxxxxxx associates, as mutually agreed upon with
iVillage and within Xxxxxxx'x privacy guidelines with
respect to the Pet Registry on xxxxxx.xxx. iVillage
will make good faith efforts to communicate
information about xxxxxx.xxx and related sites to
iVillage's members and associates, as mutually agreed
upon with Xxxxxxx and within iVillage's privacy
guidelines for membership.
(iii) Xxxxxxx agrees to make available to iVillage, for use
on the iVillage Network, new tools and new Xxxxxxx
Content which may be developed for the xxxxxx.xxx and
related sites, to the extent that Xxxxxxx shall have
the rights to do so.
X. Xxxxxxx will assist iVillage in the marketing, distribution and
fulfillment of Xxxxxxx products as displayed within the Pet Store and will
assist iVillage with the overall marketing and content of the Pet Store and will
provide iVillage with the following:
(i) introduction to iVillage to Xxxxxxx'x distributors
(ii) assistance to iVillage in creating additional Pet
area and Pet Commerce Site sponsorship relationships
(iii) product and Pet food reviews
(iv) puppy and kitten starter kits
4. Compensation.
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X. Xxxxxxx shall pay iVillage [*] ($[*]) according to the following
schedule, namely: (i) [*] ($[*]) within fifteen (15) days after signing this
Agreement; (ii) [*] ($ [*]) on March 30, 1999; and (iii) [*] ($[*]) on July 30,
1999 which shall represent the sponsorship during the first twelve (12) months
of this Agreement.
X. Xxxxxxx shall pay iVillage an additional [*] ($[*]) according to the
following schedule, namely: (i) [*] ($[*]) on November 1, 1999; (ii) [*] ($[*])
on March 30, 2000; and (iii) [*] ($[*]) on July 28, 2000 which shall represent
the sponsorship during the second twelve (12) months of this Agreement.
5. Exclusivity . During the term of this Agreement and any subsequent
renewal thereto, iVillage agrees that Xxxxxxx shall be the exclusive sponsor of
cat or dog foods, cat and dog treats, litter box filter and related products on
the Pet Area and the Pet Store with respect to entities whose business is that
of manufacturing or distributing cat and dog foods, cat and dog treats, litter
box filler and related products, and iVillage will not display any advertising,
links, promotional information or marketing materials for ' any other
individual, entity or Web site whose business is that of manufacturing or
distributing cat and dog foods, cat and dog treats, litter box filler and
related products, where such advertising, links, promotional information or
marketing materials make reference to cat or dog foods, cat and dog treats,
litter box filler or related products, except with the written permission of
Xxxxxxx.
6. Representations and Warranties. Each Party hereby represents and
warrants that: (a) it is a corporation duly organized and validly existing and
in good standing under the laws of the state of its incorporation, (b) it has
full power and authority to enter into this Agreement and to perform its
obligations hereunder; (c) it has obtained all permits, licenses, and other
governmental authorizations and approvals required for its performance under
this Agreement; and (d) to the best of its knowledge and belief, the services to
be rendered and the materials provided by each Party under this Agreement
neither infringe nor violate any patent, copyright, trade secret, trademark, or
other proprietary right of any third party.
7. Customer Data. On a quarterly basis, iVillage will use its good
faith efforts to provide Xxxxxxx with mutually agreed upon data concerning
iVillage users. Xxxxxxx shall treat such data in the same manner as it treats
its own Confidential Information and will not use it except in accordance with
reasonable guidelines to be agreed upon by the Parties. Notwithstanding anything
contained in this Section, iVillage will not be required to deliver to Xxxxxxx
any user data in violation of its policies regarding the protection of user
information.
8. Proprietary Rights. All intellectual or proprietary property and
information, 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. Intellectual and
proprietary property and information jointly developed by the Parties pursuant
to this agreement shall be the joint property of the Parties.
9. Publicity. iVillage and Xxxxxxx agree to collaborate on a joint
press release ("Press Release") to include information regarding the subject
matter of this Agreement and quotes from iVillage sources. The distribution list
shall be approved by both Parties no less than five (5) business days prior to
the release date. The Press Release and any quotes from iVillage sources must be
approved by the iVillage public relations department, which also must be made
aware of any pre-briefings with outside parties at least five (5) days in
advance of any pre-briefing. In addition, the iVillage public relations
department must be informed, no less than five (5) days before the release date,
of any third party who expresses interest in the Press Release.
10. Intentionally Omitted.
11. Confidentiality. Except as expressly set forth herein, iVillage and
Xxxxxxx shall maintain in confidence the terms of this Agreement. It is expected
that, pursuant to discussions to date and to this Agreement, the Parties may
disclose to one another certain information ("Information"), as defined herein,
which is considered by the disclosing Party to be proprietary or confidential
information. Information is defined as any information, communication or data,
in any form, including, but not limited to oral, written, graphic or
electromagnetic forms, models or samples, which the disclosing Party desires to
protect against unrestricted disclosure or use, including without limitation,
business information, financial data and marketing data. All Information shall
remain the sole property of the disclosing Party and its confidentiality shall
be maintained and protected by the receiving Party with the same degree of care
as the receiving Party uses for its own confidential and proprietary information
and the receiving Party shall not disclose such Information to any third party.
The restrictions of the use or disclosure of any Information shall not apply to
any Information: (i) after it has become generally available to the public
without breach of this Agreement by the receiving Party; (ii) is rightfully in
the receiving Party's possession prior to disclosure to it by the disclosing
Party; (iii) is independently developed by the receiving Party; (iv) is
rightfully received by the receiving Party from a third party without a duty of
confidentiality; or (v) is required to be disclosed under operation of law.
12. LIMITATION OF LIABILITY. NEITHER PARTY SHALL HAVE ANY LIABILITY
HEREUNDER FOR ANY 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 PRODUCTS AND SERVICES CONTEMPLATED BY TIES 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.
13. Indemnification. Both Parties agree to indemnify, defend and hold
harmless the other Party and its parent, subsidiaries, affiliates, successors
and assigns from any and all third party
losses, liabilities, damages, actions, claims, expenses and costs (including
reasonable attorneys' fees) which result or arise from the breach of this
Agreement by the indemnifying Party.
14. General Provisions.
A. Relationship of the Parties. Nothing contained herein 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 in any manner
whatsoever, except to the extent herein provided.
B. Severability. If any provision of this Agreement shall be declared
by any court of competent jurisdiction to be illegal, void or unenforceable, all
other provisions of this Agreement shall not be affected and shall remain in
full force and effect.
C. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument.
D. Notices. All notices, requests, demands, payments and other
communications which are required or may be given under this Agreement shall be
in writing and shall be deemed to have been duly given if delivered personally,
telecopied or sent by nationally recognized overnight carrier, or mailed by
certified mail, postage prepaid, return receipt requested, as follows:
If to Xxxxxxx:
Xxxxxxx Purina Company
Xxxxxxxxxxxx Xxxxxx
Xx. Xxxxx, XX 00000-0000
Attn: Xxxxxxx X. Xxxxx-8T
cc: Xxxxxxxx X. Xxxxxxx-9T
Xxxxxx Xxxxxx-9T
Tel: (000) 000-0000
Fax: (000) 000-0000
If to iVillage: iVillage, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 100 10
Attention: Vice President Business/Legal Affairs
Tel: (000) 000-0000
Fax: (000) 000-0000
E. Force Majeur. 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, including but not limited to the weather, strikes or labor
disputes, war, terrorist 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.
F. Entire Agreement. This Agreement (i) constitutes the binding
agreement between the Parties; (ii) represents the entire agreement between the
Parties and supersedes all prior agreements relating to the subject matter
contained herein and (iii) may not be modified or amended except in writing
signed by the Parties.
G. Survival. The following sections shall survive any termination or
expiration of this Agreement: 6, 8, 11, 12, 13 and 14.
H. Governing Law. This Agreement shall be governed by, and construed in
accordance with the laws of the State of New York without regard to the
conflicts of laws principles thereof.
I. Assignment. 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,
J. Headings. The headings of the various sections of this Agreement
have been inserted for convenience of reference only.
IN WITNESS WHEREOF, the Parties hereto have executed and delivered this
Agreement as of the date first above written.
For Xxxxxxx Purina Company For iVillage, Inc.
Xxxxxxxx X. Block Xxxxxx Xxxxx
----------------------------------- -------------------------------------
(Name) (Name)
Executive Vice President Vice President Business/Legal Affairs
----------------------------------- -------------------------------------
(Title) (Title)
/s/ Xxxxxxxx X. Block /s/ Xxxxxx Xxxxx
----------------------------------- -------------------------------------
(Name) (Name)
