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Exhibit 10.15
DATABASE AGREEMENT
This DATABASE AGREEMENT (this "Agreement") dated as of July 1, 1999 by
and between XXXXXXXXXXXXX.XXX, INC., a Delaware corporation
("XxxxxxxXxxxxx.xxx"), and VITAMIN SHOPPE INDUSTRIES INC., a New York
corporation ("VSI"),
W I T N E S S E T H:
WHEREAS, XxxxxxxXxxxxx.xxx and VSI desire to share certain information
contained in the product and customer databases that each maintains, on the
terms and subject to the conditions set forth herein;
NOW, THEREFORE, the parties agree as follows:
1. GRANT OF LICENSE. (a) Subject to any restrictions contained in any
agreements with third parties and to paragraph 2, XxxxxxxXxxxxx.xxx
and VSI hereby grant to each other a non-exclusive, royalty-free
right and license (the "License") during the term of this Agreement
to use the following database and informational materials, including
without limitation any additions, revisions and modifications made
thereto by either party during the term of this Agreement
(collectively, the "Licensed Materials"):
(i) VSI's product information regarding each such Product
(as defined in the Supply and Fulfillment Agreement) that VSI is then
supplying to XxxxxxxXxxxxx.xxx, as such information may exist from
time to time, so long as VSI is obligated under the Supply and
Fulfillment Agreement dated of even date herewith by and between
XxxxxxxXxxxxx.xxx and VSI, the terms of which agreement are hereby
incorporated by reference (the "Supply and Fulfillment Agreement"),
to supply any Products to XxxxxxxXxxxxx.xxx;
(ii) each party's lists regarding its customers, including
their transactional histories (collectively, the "Customer Lists"),
as such information may exist from time to time and excluding any
prospect lists rented from third parties in which the licensor has no
continuing right of ownership; and
(iii) all transactional histories and demographic
information related to any customer compiled by either party.
(b) Each party shall use the Licensed Materials provided by the other
party for purposes of analyzing trends in product usage and customer
demographics. Nothing in the License is intended to permit the use of the
Licensed Materials for any other purpose, including without limitation, customer
solicitation.
(c) The Licensed Materials shall be made available at such times and in
such format as the parties shall mutually agree. Each party shall use
commercially reasonable best efforts to keep the Licensed Materials current and
accurate in all material respects.
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(d) Neither party shall disclose, sell, lease or rent the other party's
Customer List to any third party without such other party's prior written
consent.
(e) To the extent that XxxxxxxXxxxxx.xxx acquires any information
regarding Retail Customers (as defined below) through its own sales, such
information shall be provided to VSI periodically, but in no event less
frequently than quarterly. To the extent that VSI acquires any information
regarding Internet Customers (as defined below) through its own sales, such
information shall be provided to XxxxxxxXxxxxx.xxx periodically, but in no event
less frequently than quarterly. Notwithstanding any provision in this Agreement
to the contrary, either party may use the information provided to it under this
paragraph 1(e) for any purpose, in its sole discretion. For the purposes of this
Agreement: (i) an "Internet Customer" shall mean any customer who purchased from
XxxxxxxXxxxxx.xxx during the 12-month period ending immediately prior to the
date of determination; and (ii) a "Retail Customer" shall mean any customer who
purchased from VSI during the 12-month period ending immediately prior to the
date of determination. The parties expressly acknowledge that a person may be
both an Internet Customer and a Retail Customer.
2. LIMITED WARRANTY. Each party hereby represents and warrants to the
other that (a) it owns or otherwise has the right to use the Licensed Materials
as to which it grants the License, (b) it has the right and power to grant the
License as provided herein and (c) the grant of the License as provided herein
does not require the consent of any third party.
EXCEPT AS EXPRESSLY PROVIDED IN THE FOREGOING SENTENCE, NEITHER PARTY
MAKES ANY REPRESENTATION OR WARRANTY WHATSOEVER, WHETHER EXPRESS OR
IMPLIED, WITH RESPECT TO ANY OF THE LICENSED MATERIALS OR ANY
INFORMATION, REPORTS OR OUTPUT GENERATED THEREBY. EACH PARTY HEREBY
DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY
PARTICULAR PURPOSE. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE
OTHER HEREUNDER FOR ANY CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES.
3. OWNERSHIP OF LICENSED MATERIALS. All Licensed Materials, including
any copies, translations or compilations of all or any part thereof, and any
revisions, modifications or additions thereto made by VSI or XxxxxxxXxxxxx.xxx,
as the case may be, are and shall remain the sole exclusive property of their
respective owner, except for any revisions, modifications or additions thereto
which were made solely by the party granted a License to use such Licensed
Materials hereunder. Any such revisions, modifications or additions shall be
owned by the party that made them, but the owner of the Licensed Materials shall
hereby be granted a non-exclusive, perpetual, non-revokable, non-transferrable
license to use the same.
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4. CONFIDENTIALITY. Each party acknowledges that the Licensed
Materials constitute valuable, confidential and proprietary information and
trade secrets of the other. Accordingly, neither party shall, directly or
indirectly, during or after the term of this Agreement, disclose or divulge to
any third party, or permit any third party to use or have access to, any of the
Licensed Materials, without the prior written consent of the other.
5. TERM. (a) This Agreement shall commence on the date hereof and
continue for an indefinite period in full force and effect until it is
terminated in accordance with this paragraph 5.
(b) Either party shall have the right but not the obligation to
terminate this Agreement immediately if at any time:
(i) the other party shall be in material breach of any of its
obligations hereunder, and such breach shall not be cured within 20
days after receipt of written notice thereof;
(ii) the other party shall be the subject of a voluntary
petition in bankruptcy or any voluntary proceeding relating to
insolvency, receivership, liquidation or assignment for the benefit
of creditors;
(iii) the other party shall become the subject of any
involuntary petition in bankruptcy or any involuntary proceeding
relating to insolvency, receivership, liquidation or assignment for
the benefit of creditors, and such petition or proceeding shall not
be dismissed within 60 days of filing;
(iv) the business of the other party shall be liquidated or
otherwise terminated on any basis; or
(v) the other party shall become insolvent or unable to pay
its debts as they become due.
(c) XxxxxxxXxxxxx.xxx shall have the right but not the obligation to
terminate this Agreement upon 180 days prior written notice to VSI.
(d) VSI shall have the right but not the obligation to terminate this
Agreement immediately upon the acquisition of the direct or beneficial ownership
of 30% or more of the voting power of the capital stock of XxxxxxxXxxxxx.xxx by
any person or entity which is engaged in the direct or indirect marketing or
distribution through retail or direct marketing channels (including, without
limitation, print catalogs and mail-order but excluding the Internet) of
vitamins, minerals, nutritional supplements or any other nutritional or
non-prescription health-related product anywhere in the world or of any other
product produced, marketed or distributed by VSI during the term of this
Agreement.
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(e) For purposes of this Agreement, (i) "beneficial ownership" has the
meaning set forth in the regulations promulgated under section 13(d) of the
Securities Exchange Act of 1934 and (ii) "capital stock" means the Class A
common stock and Class B common stock of XxxxxxxXxxxxx.xxx and any other
securities issued by XxxxxxxXxxxxx.xxx having the power to vote in the election
of directors, including without limitation any securities having such power only
upon the occurrence of a default or any other extraordinary contingency. For
such purposes, "acquisition" shall not include the acquisition by a person of
voting securities of XxxxxxxXxxxxx.xxx pursuant to an involuntary disposition by
VSI through foreclosure or similar event but shall include a subsequent
acquisition of voting securities pursuant to a disposition by the person who
acquired the voting securities in such involuntary disposition.
(f) Upon termination of this Agreement pursuant this paragraph 5: (i)
the License granted hereunder shall terminate; (ii) each party shall cease to
use the Licensed Materials; (iii) each party shall promptly return to the other
or destroy all copies of the Licensed Materials; and (iv) each party shall
execute and deliver to the other any documents reasonably requested by the other
to confirm the other's ownership of the Licensed Materials.
(g) A party may exercise its right to terminate pursuant to this
paragraph 6 by written notice to the other party. No exercise by a party of its
rights under this paragraph 5 shall limit its remedies by reason of the other
party's default, the party's rights to exercise any other rights under this
paragraph 5 or any other rights of that party.
6. INJUNCTIVE RELIEF. Each party acknowledges that money damages would
not adequately compensate it in the event of a breach by the other party of such
other party's obligations hereunder and that injunctive relief would be
essential for the other to protect its rights adequately hereunder. Accordingly,
each party shall be entitled to injunctive relief if the other party is in
breach of any of its representations, warranties or obligations hereunder, in
addition to any other relief to which each party may be entitled at law or in
equity.
7. INDEPENDENT CONTRACTOR. The parties to this Agreement are
independent contractors. Neither party shall have the power to bind the other or
to incur obligations on behalf of the other without the other's prior written
consent. When VSI or its employees act under the terms of this Agreement, they
shall at all times be under the supervision and responsibility of VSI. No
employee of VSI acting under the terms of this Agreement shall be deemed to be
an agent or employee of XxxxxxxXxxxxx.xxx or any customer of XxxxxxxXxxxxx.xxx.
8. MISCELLANEOUS. (a) Neither party may assign this Agreement or its
rights and obligations hereunder in whole or in part without the other party's
prior written consent. Any attempt to assign this Agreement without such consent
shall be void and of no effect. Notwithstanding the foregoing, either party may
assign this Agreement or its rights and obligations hereunder to any entity
controlled by it or to any entity by which it is acquired by merger, purchase of
capital stock, transfer of substantially all assets or otherwise; provided that
such entity shall thereafter succeed to all obligations of such party under this
Agreement.
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(b) This Agreement shall be governed by and construed in accordance
with the internal laws of the State of New York applicable to agreements made
and to be performed entirely within such state, without regard to the principles
of conflicts of law of such state.
(c) Each party hereto irrevocably and unconditionally consents to the
exclusive jurisdiction of the Supreme Court of the State of New York, New York
County, or the United States District Court for the Southern District of New
York for the purposes of any suit, action or proceeding arising out of this
Agreement or any transaction contemplated hereby. Each party agrees to commence
any such action, suit or proceeding either in the United States District Court
for the Southern District of New York, or if such suit, action or other
proceeding may not be brought in such court for jurisdictional reasons, in the
Supreme Court of the State of New York, New York County. Each party further
agrees that service of any process, summons, notice or documents by United
States registered mail to such party's address set forth pursuant to paragraph
8(e) shall be effective service of process for any action, suit or proceeding in
respect to any matters to which such party has submitted to jurisdiction in this
paragraph 8(c). Each party irrevocably and unconditionally waives any objection
to the laying of venue of any action, suit or proceeding arising out of this
Agreement or any transaction contemplated hereby in the Supreme Court of the
State of New York, New York County, or the United States District Court for the
Southern District of New York. Each party irrevocably and unconditionally waives
and agrees not to plead or claim in any such court that any such action, suit or
proceeding brought in either such court has been brought in an inconvenient
forum.
(d) If any provision of this Agreement or any portion thereof, or the
application of any such provision or portion thereof, to any person or
circumstance shall be held invalid, illegal or unenforceable in any respect by a
court of competent jurisdiction, such invalidity, illegality or unenforceability
shall not affect any other provision hereof or the remaining portion thereof or
the application of such provision to any other persons or circumstances.
(e) All notices or other communications required or permitted to be
given hereunder shall be in writing and shall be delivered by hand or sent,
postage prepaid, by registered, certified or express mail or reputable overnight
courier service and shall be deemed given when so delivered by hand, or if
mailed, three days after mailing (or one business day in the case of express
mail or overnight courier service), as follows:
If to XxxxxxxXxxxxx.xxx, to:
XxxxxxxXxxxxx.xxx, Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: President and Chief Executive Officer
If to VSI, to:
Vitamin Shoppe Industries Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxx Xxxxxx, XX 00000
Attention: President and Chief Executive Officer
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(f) No failure of either party to exercise or enforce any of its rights
under this Agreement shall act as a waiver of such right.
(g) This Agreement constitutes the entire agreement and understanding
between the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and understandings relating to such subject
matter. Neither party shall be liable or bound to any other party in any manner
by any representations, warranties or covenants relating to the subject matter
except as specifically set forth herein. This Agreement may be executed in one
or more counterparts, all of which shall be considered one and the same
agreement, and shall become effective when one or more such counterparts have
been executed and delivered by both parties.
(h) This Agreement may be amended only by an instrument in writing
signed on behalf of each party. As long as VSI owns at least 30% of the voting
power of the capital stock of XxxxxxxXxxxxx.xxx (as defined in paragraph 6(e)),
no material term of this Agreement may be amended or waived without the approval
of a majority of the directors of XxxxxxxXxxxxx.xxx who are not directors,
officers or more than 5% stockholders of VSI (or the designee of a more than 5%
stockholder).
(i) This Agreement is for the sole benefit of the parties hereto.
Nothing herein expressed or implied shall give or be construed to give to any
other person or entity any legal or equitable rights hereunder.
(j) The headings contained in this Agreement are for reference purposes
only and shall not affect the meaning or interpretation of this Agreement. When
reference is made in this Agreement to a paragraph, such reference shall be to a
paragraph of this Agreement unless otherwise indicated.
(k) The provisions of paragraphs 3 and 8 shall survive any termination
of this Agreement.
[Remainder of Page Intentionally Blank]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
XXXXXXXXXXXXX.XXX, INC.
By:
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Name: Xxxxxxx X. Xxxxxx
Title: President and Chief
Executive Officer
VITAMIN SHOPPE INDUSTRIES INC.
By:
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Name: Xxxxxxx X. Xxxxxxxx
Title: President and Chief
Executive Officer
