EXHIBIT 10.5
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This (the "Agreement") is made and entered into as of July
1, 2000 (the "Effective Date") by and between iVillage Inc. a Delaware
Corporation, located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("iVillage")
and ▇▇▇▇▇▇.▇▇▇, Inc. ("eDiets") located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, a Delaware Corporation (the "Sponsor"). This
Agreement includes and incorporates by reference the Standard Terms and
Conditions set forth herein and exhibits A and B attached to this Agreement.
iVillage desires to offer various sponsorship and promotional opportunities to
Sponsor to be located on the iVillage Network as specifically set forth herein.
Sponsor desires to obtain a promotional presence on the iVillage Network;
For good and valuable consideration, receipt of which is hereby acknowledged,
the parties hereby agree as follows:
1. Definitions:
Wherever used in this Agreement with initial terms capitalized, such term will
have the meaning set forth in Exhibit B.
2. Sponsorship Deliverables:
A Impressions and Customer Acquisition:
o iVillage will guarantee to deliver a total of 63,000 new members
("Paid Customers") to Sponsor throughout the term of this
Agreement. Paid Customer shall be defined as a visitor to the
Sponsors site that purchases an eDiets weight loss program during
their visit to said site as a result of a Click-Thru from the
iVillage Network. Customers acquired through subsequent eDiets
re-marketing programs are not to be counted towards this
guarantee. Sponsor agrees to provide to iVillage mutually
acceptable reporting of Paid Customers acquired pursuant to this
Agreement on a daily basis. iVillage may, by providing thirty
(30) days written notice, elect to audit the books and records of
eDiets to determine the accuracy of the sales report providing
iVillage with Paid Customer information, which audit will be at
iVillage's sole expense.
o Paid Customers are to be delivered at the rate of 2,625 per month
for each of the 24 months of this Agreement. In the event that
said delivery falls behind in any given three month period
("Quarter"), and the shortfall is less than 20% of the total Paid
Customers due to Sponsor during a Quarter, iVillage will make up
the shortfall (the "Make Good Period") within 45 days . In the
event that the shortfall is greater than 20% of the total Paid
Customers due to Sponsor during any given Quarter, iVillage will
make up 125% of the shortfall during an extended Make Good Period
totaling 90 days. Failure to make up the shortfalls within these
Make Good Periods will give Sponsor the right to terminate this
Agreement pursuant to Section 6.1[e] of Exhibit A. Such failure
will also give iVillage the right to terminate this Agreement by
providing Sponsor with (30) days prior written notice, provided
that iVillage has used commercially reasonable efforts to deliver
the Paid Customers through out the applicable Make Good Periods.
If either party exercises its right to terminate as provided for
herein, Sponsor shall be entitled to receive a refund from
iVillage equal to the difference between (i) all fees paid to
iVillage under this Agreement up to the date of termination and
(ii) the total of all Paid Customers delivered up to the date of
termination multiplied by $95.24 per Paid Customer. Such refund
shall be payable to Sponsor within 30 days of the date of
termination. In the event of over delivery of Paid Customers in
any Quarter, the amount of the overage shall be applied to the
following Quarter's guarantee.
o iVillage will guarantee delivery on the iVillage Network of not
less than 223,000,000 Impressions ("Impressions") during the
term of this Agreement to be delivered 111,500,000 Impressions
per 12-month period, Twenty-Five percent (25%) of such
Impressions shall be delivered within the iVillage Diet & Fitness
channel (WWW platform). Of the 63,000 Paid Customers referenced
above, 55,025 shall be acquired through the use of said
Impressions. In the event that iVillage does not deliver the
minimum annual Impressions within a twelve month period (i.e.
111,500,000 Impressions), Sponsor may elect to either (i) extend
the term of this Agreement for a mutually agreed to period of
time in order to provide iVillage with the opportunity to deliver
the total amount of Impressions or, (ii) terminate this Agreement
upon (15) days prior written notice.
The remaining 7,975 Paid Customers (of the 63,000 Paid Customers
guaranteed above) are to be acquired through the use of not less
than 8,000,000 Impressions on eDiets creative units within the
Never Say Diet area of the iVillage Network on the AOL platform
(4,000,000 per 12 month period). Notwithstanding the foregoing
sentence, Sponsor shall own all Impressions within the Never Say
Diet sections of iVillage on the AOL platform. These Impressions
shall be at no charge to Sponsor. It is agreed and understood
between the parties that the Never Say Diet area will remain on
the AOL platform for the first 12 months of this Agreement. In
the event that the Never Say Diet area ceases to exist on the AOL
platform during the second year of this Agreement, iVillage will
still be required to deliver the total number of Paid Customers
referenced above.
B Other Provisions:
iVillage agrees not to offer a fee based iVillage branded or
co-branded diet program ("iVillage Diet Program") itself or
through its subsidiaries for the term of this Agreement. Should
iVillage offer such an iVillage Diet Program during the term of
this Agreement, eDiets may elect to terminate the Agreement by
providing 30 days prior written notice. Should Sponsor elect to
terminate this Agreement pursuant to this provision, iVillage
shall reimburse Sponsor within 30 days of the date of termination
for all pre-paid Impressions or other promotions not delivered as
of the date of termination. Notwithstanding the foregoing
sentence, nothing herein is intended to limit iVillage's right or
ability to sell advertising inventory to promote third party,
free or fee-based diet programs (except as restricted elsewhere
in this Agreement) or to display and promote editorial content
related to any iVillage or non-iVillage branded third-party diet
program that is free or fee based to the user provided that the
design, development or operation of said program cannot be shown
to be the product of, the use of material Confidential
Information (as defined in paragraph 10 of Exhibit A) received
from eDiets. It is understood between the parties that iVillage's
ability to display or promote editorial content does not
consitute an ability to provide, a fee-based diet program within
the iVillage Network. Notwithstanding the foregoing, it is
understood that the mere existence and promotion of an iVillage
or non-iVillage branded free diet program will not constitute a
violation of this or any other Agreement between the parties.
Notwithstanding the foregoing provision, Sponsor will be one of no more than
three paid advertisers on the iVillage Network whose primary business is the
online sale of paid weight loss programs during the Term of this Agreement.
Further, in no case will iVillage sell paid advertising to ▇▇▇▇▇▇.▇▇▇ during the
term of this Agreement. Notwithstanding the foregoing, this does not include
(and iVillage retains the right and ability to pursue any relationship with)
Weight Watchers, ▇▇▇▇▇ ▇▇▇▇▇ and Nutrisystems, subject to the first sentence of
this subparagraph.
3 Fees:
eDiets agrees to pay iVillage fees due pursuant to this Agreement
in the amount of $6,000,000.00 over the twenty-four (24) month
Term (as defined below), payable as follows:
$125,000.00 to be paid by wire transfer or company check monthly
on the first and the fifteenth day of each of the twenty-four
(24) consecutive months throughout the Term, beginning July 1,
2000 or the Launch Date (whichever comes first) and July 1, 2002.
In addition, Sponsor will maintain a security balance of
$125,000.00 on deposit with iVillage as security against any late
payments ocuring throughout the Term of this Agreement. This
security deposit will be paid upon signing of this Agreement. In
the event that eDiets is more than 15 days late for any payment,
iVillage may at its sole discretion, utilize the security funds
provided for herein to pay the fees currently due. Thereafter,
Sponsor will replenish the security deposit balance so that at no
time throughout the Term of this Agreement will the balance fall
below the sum of $125, 000.00 for more than a seven (7) day
period of time. In the event that eDiets fails to replenish this
deposit as provided, iVillage may suspend delivery of Impressions
until such time as the deposit has been replenished.
4 Term and Termination:
The term of this Agreement will commence on the Effective Date
and will continue for a period of twenty-four (24) months unless
earlier terminated as set forth in Section 6 of Exhibit A,
Section 2 A above, Section 2 B above, 4(b) below, or unless
extended by mutual approval of the parties (the "Term"); (b) in
addition to the termination provisions provided for in 4(a)
above, iVillage may immediately terminate this in the event iVillage has terminated any other
Agreements or Insertion Orders entered into with Sponsor, as a
result of a Sponsor's breach.
AGREED TO FOR ▇▇▇▇▇▇.▇▇▇, Inc. AGREED TO FOR iVillage Inc:
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /S/ ▇▇▇▇▇ ▇▇▇▇▇
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Print Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Print Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Chief Executive Officer Title: Senior Vice President
Business and Legal Affairs
Date: 6/7/00 Date: 6/7/00
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Address:3467 ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Exhibit A
General Terms and Conditions:
1.0 Grant of Non-Exclusive Rights: During the term of this Agreement,
Sponsor grants to iVillage, a non-exclusive license to reproduce, copy,
publish, and distribute Sponsor's Marks throughout the world, in
connection with Sponsor's advertisement(s) placed on the iVillage
Network in a manner as provided for by this Agreement. iVillage
acknowledges that all goodwill associated with its use of the Sponsor
Marks shall exclusively inure to the benefit of Sponsor. Sponsor
further grants iVillage the right to link to Sponsor's WWW Site, from
the iVillage Network, to the extent necessary for iVillage to perform
its duties and obligations hereunder and to the extent applicable to
this Agreement. The License granted herein by Sponsor to iVillage shall
terminate upon the expiration or termination of this Agreement. Sponsor
agrees that any and all goodwill arising from or related to any use of
any of the iVillage Marks by Sponsor pursuant to this Agreement will
inure exclusively to the benefit of iVillage.
2.0 Ownership of Rights: Sponsor and iVillage each acknowledge and agree
that: (a). as between each other, each owns all right, title and
interest in its Marks and all derivatives thereof; (b). nothing in this
Agreement will confer in the other party any right of ownership in the
Marks; (c) neither party will contest the validity of any of the Marks
of the other party; (d). no licenses or rights are granted by either
party except as expressly set forth in this Agreement; and (e) as
between iVillage and Sponsor, iVillage owns all right, title and
interest in any and all iVillage Member/Visitor/Subscriber data (both
personal and aggregate) derived pursuant to this Agreement.
3.0 Publicity: If so desired, iVillage and Sponsor may agree in the future
to collaborate on a joint press release or public announcement ("Press
Release") the terms and conditions of which will be mutually approved
by both parties.
4.0 Submissions: As appropriate, iVillage must receive all Sponsor
Submissions at least five business days prior to the scheduled date of
publication for each relevant Sponsor Submission. In the event iVillage
does not receive a Sponsor Submission prior to the applicable deadline;
iVillage may publish in substitution any prior Sponsor Submission other
than prior Sponsor submission that were removed from iVillage Network
pursuant to the last sentence of this paragraph until such time as
iVillage can reasonably begin publication of the promotion. If no such
prior Sponsor 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 Sponsor Submissions
must be made in writing, with an e-mail copy sent to
▇▇▇@▇▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇, and received by iVillage prior to the applicable
deadline. iVillage may, in its sole discretion, refuse at any time and
for any reason any Sponsor Submission and/or may refuse to publish any
advertisement provided by Sponsor. All Sponsors' advertisements,
including graphics, must comply with standard iVillage guidelines and
iVillage approval.
5.0 Reports and Tracking:
5.1 iVillage Use of DART Reports and Tracking: iVillage and Sponsor agree
that unless specifically stated otherwise in this Agreement, iVillage
will be using DART (Double Click) to act as the ad server for this
. iVillage and Sponsor will use the Impressions,
Click-Through and other tracking generated by the DART server for all
tracking and reporting purposes and Sponsor agrees to accept such DART
data as the official basis for measuring all services to be provided
under this Agreement.
5.2 Reports Provided To Sponsor: It is agreed that iVillage shall provide
Sponsor with a user name and password to access online reporting
through DART or other similar service. Any customization of reports
requested by Sponsor or its agent or representative shall be subject to
a reasonable charge as determined by iVillage. In addition, during the
term of this Agreement, iVillage shall provide Sponsor with mutually
agreed upon statistics regarding Sponsor's Co-Branded Area, where
applicable, including traffic thereon, in accordance with iVillage's
standard reporting formats.
5.3 Advertising Server other than DART: In the event another third party
advertisement serving and measurement company other than DART") is used
by Sponsor to serve and/or track Impressions, ads and Click-Thrus and
the iVillage report (as described above in Sections 5.1 and 5.2)
indicates a number of Impressions delivered that is greater than
Sponsor's ad server report, then the number of Impressions indicated by
iVillage's report will be deemed the determinative number of
Impressions delivered during the reporting period for purposes of the
duties and obligations related to guaranteed Impressions pursuant to
this Agreement.
6.0 Termination:
6.1 For Cause: In addition to any additional termination provisions
provided for in Section 4 of the Sponsorship Deliverables section of
this Agreement, this Agreement may be terminated by either party
immediately upon written notice if the other party: (a) becomes the
subject of any proceeding relating to insolvency, receivership or
liquidation; (b) files a petition in bankruptcy; or has filed against
it a petition in bankruptcy of which is not discharged within 30 days
thereof (c) makes an assignment for the benefit of its creditors; or
(d) admits in writing its inability to pay debts as they become due;
(e) breaches any of its obligations under this Agreement in any
material respect, which breach is not remedied within ten (10) days
following written notice to such party. Except as set forth in the
termination provisions of this Agreement, this Agreement cannot be
terminated.
6.2 Effect of Termination: The provisions of this Section 6, fees accrued
and earned but not yet paid and Sections 2, 7, 8, 9, 10, 11, 12 and 13
will each survive any termination or expiration of this Agreement. Upon
the termination or expiration of this Agreement by either party for any
reason, both parties must return any information, materials or
properties of the other party within thirty (30) days of such
termination, or expiration, and Sponsor's advertisement(s), promotional
listings, links and, co-branded pages will be immediately removed from
iVillage.
7.0 Representations and Warranties: Each party represents to the other that
(a) it has the authority to enter into this Agreement and sufficient
rights to grant any licenses granted hereby, and (b) any material which
is provided to the other party and displayed on the other party's site
will not (i) infringe on any third party's copyright, patent,
trademark, trade secret or other proprietary rights or right of
publicity or privacy, (ii) violate any applicable law, statute,
ordinance or regulation; (iii) contain viruses, Trojan horses, worms,
time bombs, cancelbots, or other similar harmful or deterious
programming routines; (iv) be lewd, pornographic or obscene; (v)
promote discrimination based upon race, sex, religion, national origin,
physical disability, sexual orientation or age; (vi) promotes illegal
activity or (vii) knowingly violate any laws regarding unfair
competition, anti-discrimination or false and misleading advertising.
7.1 iVillage Representation: iVillage represents and warrants for the
benefit of Sponsor that (a) it has full and sole control over the
content and programming of the iVillage Network and Sponsor has no
editorial control over the content of the iVillage Network; (b) it
shall use commercially reasonable efforts to maintain the iVillage
Network available and displaying Sponsor's advertisements twenty-four
(24) hours per day, seven (7) days per week during the term of this
Agreement.
7.2 Sponsor Representation: Sponsor represents and warrants for the benefit
of iVillage that (i) it has full and complete control over the content
and programming of the ediets program; (ii) it shall use commercially
reasonable efforts to maintain the ediets site and ediets program
twenty-four (24) hours per day, seven (7) days per week during the term
of this Agreement.
8.0 General Warranty:
WITHOUT LIMITING THE FOREGOING REPRESENTATIONS AND WARRANTIES, iVillage
MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR
IMPLIED, THAT THE TECHNICAL FUNCTIONING OF THE IVILLAGE NETWORK,
co-branded PAGES, BRIDGE PAGE (S) AND RELATED LINKS WILL BE ERROR FREE
AND UNINTERRUPTED DURING THE OFFER PERIOD. IN FURTHERANCE OF THE
FOREGOING, IVillage SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE
TECHNICAL FUNCTIONING OF THE IVILLAGE NETWORK AND RELATED LINKS.
Sponsor'S SOLE AND EXCLUSIVE REMEDY AGAINST IVillage FOR ANY DAMAGES
ARISING FROM THE PERFORMANCE OR NON-PERFORMANCE BY IVillage oF ITS
OBLIGATIONS HEREUNDER AND IVillage's ENTIRE LIABILITY HEREUNDER WILL BE
AS PROVIDED FOR IN section 9 BELOW.
9.0 Limitation of Liability Disclaimer Indemnification:
9.1 LIMITATION OF LIABILITY: UNDER no circumstances will either party be
liable for indirect, incidental, consequential, special or exemplary
damages (even if it has been advised of the possibility of such
damages) arising under any provision of this Agreement, such as, but
not limited to, loss of revenue or anticipated profits or lost
business. Except as provided in section 9.2, with respect to liability
arising under THE indemnity provision, and except for sponsor's payment
obligations, In no event, will the liability of either party for any
reason and upon any and all claims and causes of action, in the
aggregate, in contract, tort or otherwise, arising from or relating to
this Agreement or the subject matter hereof exceed the fees paid to
IVillage by Sponsor hereunder in a term of one year or less in which
the damages are incurred.
9.2 Indemnity: To the fullest extent permitted by law, iVillage and Sponsor
will each indemnify, defend and hold harmless, the other and the
other's affiliates and each of their respective officers, directors,
agents and employees, from and against any and all third party claims,
damages, losses, liabilities and expenses (including but not limited to
reasonable attorney fees) arising out of or resulting from the
indemnifying party's breach of (i) the duties and obligations of this
Agreement, or (ii) its warranties and representations. Notwithstanding
any language to the contrary, in consideration of the placement of
Sponsor advertisements on the iVillage Network and any linkage to the
Sponsor's Site, the Sponsor will indemnify and defend iVillage and its
affiliated and related entities harmless from and against any and all
loss or expense arising out of the appearance of such advertisements on
the iVillage Network, or on the Sponsor's site as linked through the
iVillage Network, including without limitation, those resulting from
claims or suits for defamation, violation of privacy or publicity,
misrepresentation or copyright, trademark or patent infringement and
from and against any and all loss or expense arising out of the use,
purchase or consumption of any of Sponsor's products or services.
9.3 Claims: Each party agrees to (i) promptly notify the other party in
writing of any indemnifiable claim and give the other party the
opportunity to defend or negotiate a settlement of any such claim at
such other party's expense and (ii) cooperate fully with the other
party, at that other party's expense, in defending or settling such
claim. Both parties reserve the right, at their expense, to assume the
exclusive defense and control of any matter otherwise subject to
indemnification.
10.0 Confidentiality: For purposes of this Agreement, "Confidential
Information" means information received, whether prior to or subsequent
to the Effective Date of this Agreement, from the disclosing party or
any of its affiliates or representatives about the disclosing party's
business or activities that is proprietary and confidential, which
shall include all business, financial, technical trade secrets and
other information of a party. Confidential Information includes
information, communication or data, in any form, including, but not
limited to oral, written, graphic or electronic, models or samples,
which the disclosing party identifies as confidential or which is by
its nature or circumstances surrounding its disclosure should be
reasonably be regarded as confidential. The terms and conditions, but
not the existence of this Agreement shall be deemed to be the
Confidential Information of each party and shall not be disclosed
without the prior written consent of the other party. Each party agrees
to disclose the Confidential Information of the other party only to
those employees, agents and representative who need to know to perform
the party's obligations under this Agreement and for no other purpose.
Each party agrees (i) that it shall not disclose to any third party or
use any Confidential Information disclosed to it by the disclosing
party except as expressly permitted in this Agreement and (ii) that it
shall take all reasonable measures to maintain the confidentiality of
all Confidential Information of the disclosing party in its possession
or control, which will in no event be less than the measures it uses to
maintain the confidentiality of
its own information of similar importance. The receiving party shall be
liable to the disclosing party for any breach of this Agreement by its
employees, agents or representatives.
10.1 Exceptions: Confidential Information does include any information that
(a) is or becomes available generally in the public domain without
violation of this Agreement by the receiving party; (b) is obtained by
the receiving party from a third party who the receiving party
reasonably believes is under no duty of nondisclosure to the disclosing
party; (c) is independently developed by the receiving party without
the aid, application or use of the Confidential Information provided by
the disclosing party; or (d) is required to disclosure pursuant to a
court order from a court of competent jurisdiction, law, or regulation.
To the extent legally permissible the party complying with such court
order, law, regulation or other governmental authority to disclose,
shall first give notice to the other party thereto, and shall use
reasonable commercial efforts to afford the other party a reasonable
opportunity to challenge such order and/or to obtain a protective
order to limit or control the scope and content of any and all such
disclosure.
11.0 Privacy Policy: Any use by Sponsor of Resulting Data (as defined in
Exhibit B) must comply with iVillage's Privacy Policy with respect to
the collection and dissemination of company specific or individually
specific Resulting Data which Sponsor may obtain as a result of this
Agreement. Sponsor will have no right to disclose or use such Resulting
Data unless such data is aggregated so that iVillage, company-specific
and individual-specific information is not identified and provided that
such aggregated data is used for internal business purposes only. In no
event will any Resulting Data by which individual iVillage
Member/Visitor/Subscriber can be identified, contacted or grouped by
email address or other personal or individual characteristics, be
provided by Sponsor, used by Sponsor or disclosed by Sponsor or
disclosed to or used by a third party without permission from each
iVillage Member/Visitor/Subscriber and without obtaining village's
prior written permission
12. Miscellaneous:
12.1 Interest on Late Payments, Collection Fees: Commencing on the first day
after the date that each of the payments to iVillage becomes due,
Sponsor will be liable for a monthly rate of interest of not more than
1.5% per month, which interest shall be in addition to such fees due
and owing to iVillage. In the event iVillage is unable after a
reasonable attempt to collect the fees due from Sponsor, and is
required to turn the account over for collection to a collection agent,
Sponsor will be responsible for all additional collection and legal
fees which result therefrom.
12.2 Force Majeure: Neither party will be deemed to be in default of or to
have breached any provision of this Agreement as a result of any delay,
failure in performance or interruption of service, resulting directly
or indirectly from acts of God, acts of civil or military authorities,
civil disturbances, wars, strikes or other labor disputes, fires,
transportation contingencies, interruptions in telecommunications or
Internet services or network provider services, failure of equipment
and/or software, other catastrophes or any other occurrences which are
beyond such party's reasonable control.
12.3 Successors and Assigns: This Agreement will bind and inure to the
benefit of each party's permitted successors and assigns. Neither party
may assign this Agreement, in whole or in part, without the other
party's prior written consent; provided, however, that either party may
assign this Agreement without such consent in connection with any
merger, consolidation, or any sale of all or substantially all of such
party's assets or any other transaction in which more than fifty
percent (50%) of such party's voting securities is transferred.
Notwithstanding the foregoing, under no circumstances may Sponsor
assign this Agreement to a competitor of iVillage.
12.4 Governing Law: This Agreement and the rights and obligations of parties
hereunder shall be governed by and controlled by the laws of the State
of New York, applicable to contracts made and performed therein without
reference to the applicable choice of law provisions. All actions,
proceedings or litigation relating hereto will be instituted and
prosecuted solely within New York, New York. The parties consent to the
jurisdiction of the state courts of New York and federal court located
within such state and county with respect to any action, dispute, or
other matter pertaining to/arising out of this Agreement. The parties
agree in good faith to use reasonable efforts to resolve any and all
conflicts and controversies between them relating to this Agreement
informally and amicably between themselves before submitting any such
matter for judicial resolution. EACH PARTY WAIVES THE RIGHT TO TRIAL BY
JURY IN ANY MATTER OR DISPUTE BETWEEN THEM (AND/OR THEIR AFFILIATES)
ARISING UNDER THIS AGREEMENT OR OTHERWISE. There is no presumption for
or against either party as a result of such party being the principal
drafter of this Agreement.
12.5 No Waiver: No failure of either party to exercise or enforce any of its
rights under this Agreement will act as a waiver of such rights and no
waiver will be effective unless made in writing and signed by an
authorized representative of the waiving party.
12.6 Savings: In the event any provision of this Agreement will for any
reason be held to be invalid, illegal or unenforceable in any respect,
the remaining provisions will remain in full force and effect. If any
provision of this Agreement will, for any reason, be determined by a
court of competent jurisdiction to be excessively broad or unreasonable
as to scope or subject, such provision will be enforced to the extent
necessary to be reasonable under the circumstances and consistent with
applicable law while reflecting as closely as possible the intent of
the parties as expressed herein.
12.7 Entire Agreement; Amendments: This Agreement and its exhibits are the
complete and exclusive agreement between the parties with respect to
the subject matter hereof, superseding and replacing any and all prior
agreements, communications, and understandings, both written and oral,
regarding such subject matter. This Agreement may only be modified, or
any rights under it waived, by a written document executed by both
parties. Any contrary terms found in Sponsor's Insertion Order or
Purchase Order is null and void.
13.8 Headings: The headings used in this Agreement are for convenience only
and are not to be construed to have any legal significance.
13.9 Independent Contractors: The parties to this Agreement are independent
contractors. Neither party is an agent, representative or partner of
the other party. Neither party shall have any right, power of authority
to enter into any agreement for or on behalf of, or to incur any
obligation or liability for, or to otherwise bind, the other party.
This Agreement shall not be interpreted or construed to create an
association, joint venture, co-ownership, co-sponsorship, or
partnership between the parties or to impose any partnership obligation
or liability upon either party.
13.10 Notices: All notices, requests and other communications called for by
this Agreement will be deemed to have been given upon receipt if made
by (i) registered or certified US mail, or (ii) by telecopy (confirmed
by concurrent written notice sent first class US mail, postage prepaid)
to the individuals located at the addresses listed on the signature
page of this Agreement
Exhibit B
Definitions
1. "AOL Banner" means the banner featured across the iVillage Network
accessible only to those iVillage Member accessing iVillage via AOL
Links excluding chat rooms, message boards, and the following web-only
channels: Beauty, Book Club, Click!, Elections 2000, MoneyLife,
ParentsPlace, Pets and Shopping. Specifications: 234 X 60 pixels - 6K
maximum file size. GIF, JPEG or rich media; no limit on loops. All text
limits is 35 characters including spaces.
2. "Banners" means collectively the AOL Banners and the WWW Banners,
unless specifically, individually indicated.
3. "Buttons" means collectively the Don't Miss Mention, the Shopping Logo
and the Message Board Sponsorship Button, unless each is specifically,
individually indicated.
4. "Click-Through" means the number of times an iVillage Member, iVillage
Visitor, or iVillage Subscriber clicks on a link, which take the form
of Banners, Buttons, Newsletter Mentions or other placements and is
sent to a clickover URL on the eDiets site or another mutually agreed
upon location.
5. "Co-Branded Areas" when applicable, means the area, or pages residing
on the on the iVillage Network, where Sponsor Marks and iVillage Marks
are co-branded in conjunction with Sponsor Promotions in a manner which
maintains the iVillage Network's look, feel, style and design.
6. "Don't Miss Mentions" means the button featured on some top level and
most sub-level pages across the iVillage Network. This is currently not
available on ▇▇▇▇▇▇▇▇▇.▇▇▇, Parent Soup, and ParentsPlace.
Specifications: 120 x 90 - 6K maximum file size. GIF, JPEG or rich
media; no limit on loops. All text limit is 35 characters including
spaces.
7. "Don't Miss Tagline" means the tagline featured on some top level and
most sub-level pages across the iVillage Network. This is currently not
available on ▇▇▇▇▇▇▇▇▇.▇▇▇ and Shopping. Specifications: Dimensions
120x 90. Maximum 100 character limit including spaces.
8. "GIF" means Graphic Interchange Format.
9. "HTML Newsletter Taglines" (also referred to as "Mentions"), means the
tagline featured across iVillage's HTML newsletters. Each HTML
newsletter has three text tagline ad placements served on a rotational
basis. Dimensions: 468 x 90. Maximum 195 character limits including
spaces. 45 characters header text; 150 character body text.
10. "Impressions" means the number of times that each individual Sponsor
Banner, Button, "Don't Miss Tagline", Newsletter Mentions, or Permanent
Placements are served to a browser. Unless otherwise specifically
provided for herein, all Impressions are delivered throughout the
iVillage Network in the form of any combination of Buttons, Permanent
Placements, Banner Newsletter Mentions, or Don't Miss Taglines as
determined in iVillage's sole discretion. Unless otherwise specifically
provided for herein, Impressions shall be served evenly throughout the
Term, provided that Sponsor or its agent is not responsible for any
circumstance that may cause Impressions to be unevenly served.
11. "iVillage Home Page" means the WWW page found at the URL
▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇.
12. "iVillage Network" means the existing domestic US online network of
English language websites owned, and/or operated by iVillage which
include channels covering leading topics of interest to women, Internet
tools, elements and online commerce.. The rights granted herein to
Sponsor do not apply to any future acquisitions by iVillage of web
sites, content, channels, joint ventures or similar business
partnerships or arrangements, unless specifically provided for herein,
if these new acquisitions were not part of the iVillage Network as of
the Effective Date.
13. "iVillage Marks" means the trademarks, service marks, logos and other
distinctive brand features of iVillage that are used in or relate to
the iVillage Network.
14. "iVillage Member" means anyone who completes the ▇▇▇▇▇▇▇▇.▇▇▇ (or
similar) registration form on an ▇▇▇▇▇▇▇▇.▇▇▇ site. Also some members
request no email from us and therefore cannot be contacted that way -
only via the site itself.
15. "iVillage Visitor" means any individual who comes to an ▇▇▇▇▇▇▇▇.▇▇▇
site and views at least one page.
16. "JPEG" means Joint Photographic Experts Group format.
17. "Jump Page" means the world wide web page hosted by Sponsor which (i)
includes content and has a design which is mutually agreed upon by the
parties; (ii) combines Sponsor and iVillage logos; and (iii) contains a
salutation personalized for visitors from the iVillage Site.
18. "Message Board Sponsorship Button" means the Sponsor button featured
across all iVillage Message Boards adjacent to banner at top of boards.
Must be specifically included in the Agreement, or it does not apply.
Specifications: 120 x 60 pixels - 5K maximum file size. GIF, JPEG or
rich media; no limit on loops. Alt text is 35 characters including
spaces.
19. "Page View" means a single viewing of a WWW page, whether or not the
viewer acts on an advertisement located on that WWW page or not.
20. "Permanent Placements" means a permanent Link or permanent location of
the Sponsor promotion within the iVillage Network for the duration of
the Term.
21. "Resulting Data" means any personally identifiable and aggregated
information gathered by iVillage and/or Sponsor as a result of this
Agreement, which is related to iVillage Members, Visitors, Subscribers
use of the iVillage Network, Co-Branded Pages, Sponsor's Web Site, or
Sponsor promotions.
22. "Shopping Logo" means the logo featured on the front page and other
relevant areas of the shopping channel of the iVillage Network.
Specifications: 88 x 31 pixels - 4K maximum file size. GIF, JPEG or
rich media; no limit on loops. No alternate text allowed.
23. "Special Offer" means any Sponsor promotions offered exclusively to
iVillage Visitors and/or Members, which consist of the specifics as
more clearly defined on page one of this Agreement.
24. "Sponsor Marks" means all trademarks, service marks, logos and other
distinctive brand features of Sponsor that are used in Sponsor's
advertising.
25. "Sponsor's WWW Site" means Sponsor site located at a specific URL on
the World Wide Web.
26. "Sponsor Submission" means any graphic (GIF) file, text file, or file
of such other format as iVillage may designate from time to time,
supplied by Sponsor to be published by iVillage on the iVillage Network
and which may contain a link to Sponsor's site or to a Web site
specified by Sponsor and agreed to by iVillage or any and all
information and items necessary for iVillage's publication of any
material supplied by Sponsor, including changes and updates thereto.
27. "URL" means an address identifying among other things, the server on
which a WWW page or WWW site resides.
28. "WWW Banner" means the banner featured across the iVillage Network and
in HTML newsletters. WWW Banner specifications: 468 x 60 pixels -
10Kmaximum file size. GIF, JPEG or rich media; no limit on loops. Alt
text limit is 35 characters including space. WWW Banner is
significantly different from an AOL Banner.
29. "WWW" means the World Wide Web.
This (the "Agreement") is made and entered into as of
July 1, 2000 (the "Effective Date") between iVillage Inc. located at ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("iVillage") and ▇▇▇▇▇▇.▇▇▇, Inc., a Delaware
corporation, located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
(the "Sponsor"). This Agreement includes and incorporates by reference the
General Terms and Conditions set forth herein and exhibits A and B attached to
this Agreement.
iVillage desires to offer various sponsorship and promotional opportunities to
Sponsor to be located on the iVillage Network as specifically set forth herein.
Sponsor desires to obtain a promotional presence on the iVillage Network;
For good and valuable consideration, receipt of which is hereby acknowledged,
the parties hereby agree as follows:
1. Definitions:
Wherever used in this Agreement with initial terms capitalized, such term will
have the meaning set forth in Exhibit B.
2. Sponsorship Deliverables:
A. Click-Thru's
o iVillage agrees to deliver not less than one hundred thousand
(100,000) Click-Thrus from ▇▇▇ Impressions during each
three-month period ("Quarter") throughout the first twelve (12)
months of the term of this Agreement. All Click-Thrus from ▇▇▇
Impressions above and beyond the 100,000 per Quarter must be
pre-approved by the Sponsor. iVillage agrees to use commercially
reasonable efforts to evenly distribute delivery of Impressions
throughout each Quarter, unless such delivery is specifically
otherwise agreed to by the parties. If iVillage fails to deliver
at least 80% of the quarterly guaranteed Click-Thrus, Sponsor
shall have the right to terminate this Agreement with 10 days
prior written notice. Sponsor agrees to compensate iVillage for
said Click-Thru delivery at the rate of $2.00 per click for a
total payment of $800,000.00 due and payable within the first
twelve (12) months of the term of this Agreement.
o iVillage agrees to deliver not less than one hundred fifty
thousand (150,000) Click-Thrus from ▇▇▇ Impressions during each
Quarter within the second twelve (12) month periods of this
Agreement. All Click-Thrus from ▇▇▇ Impressions above and
beyond the 100,000 per Quarter must be pre-approved by the
Sponsor. iVillage agrees to use all commercially reasonable
efforts to evenly distribute delivery of Impressions over each
Quarter, unless otherwise mutually agreed to by the parties. If
iVillage fails to deliver at least 80% of the quarterly
guaranteed Click-Thrus, Sponsor shall have the right to terminate
this Agreement with 10 days prior written notice. Sponsor agrees
to compensate iVillage for said Click-Thru delivery at the rate
of $2.00 per click for a total payment of $1,200,000.00 due and
payable within the second twelve (12) months of this Agreement.
o Additional Click-Thrus from ▇▇▇ Impressions (above and beyond the
guarantees referenced above) may be delivered to Sponsor over the
term of this Agreement at iVillage's sole discretion and with
prior approval from Sponsor. Sponsor agrees to compensate
iVillage for said additional Click-Thru delivery in excess of the
guaranteed delivery at the rate of $1.50 per click.
B: Placement:
N/A
C: Creative Services:
N/A
D: Promotions/Sweepstakes:
N/A
E: Other Provisions:
o In the event that the Sponsor conversion to sale rate from
Click-Thrus delivered under this Agreement falls below an average
of 1.69% for any contiguous seven (7) day period (commencing each
Monday and ending each Sunday throughout the term of this
Agreement) (the "Shortfall"), both parties shall work together in
good faith to mutually agree on one of the following remedies (i)
to either terminate this Agreement (ii)re-negotiate the Cost Per
Click-Thru , or (iii) continue to monitor performance for an
additional seven (7) day period during which iVillage must use
all commercially reasonable efforts to recover a greater than
1.69% conversion rate equal to the Shortfall over the following
seven (7) day period If after 30 days iVillage is unable to
remedy the Shortfall, either party shall have the right to
terminate the Agreement with 10 days written notice. Sponsor will
furnish iVillage with full reporting of conversion numbers upon
request. For
purposes of this provision the conversion to sale rate is defined
as the rate at which visitors to the Sponsor site purchase any
Sponsor program. By way of example in order to obtain a
conversion to sale rate of 1.69% 10,000 visitors would need to
visit the Sponsor site, with 169 of those who visited purchasing
any eDiets program. Sponsor agrees to maintain accurate and
adequate books and records in order to provide iVillage with
sufficient information upon request to support eDiets conversion
to sale rate. iVillage will be entitled to audit such books and
records every six (6) months to ensure the accuracy of the
conversion to sale rate twice annually, upon ten (10) days prior
written notice, and at any point in time in which the conversion
to sale rate falls below 1.69%.
o It is understood that the Click-Thrus delivered in conjunction
with this Agreement are separate and apart from any existing or
future agreements in which iVillage and Sponsor will establish a
mutually agreeable system to track the delivery of Click-Thrus as
provided for herein.
3.0 Fees:
o Sponsor will pay the invoiced amount for the number of
Click-Thrus delivered on a monthly basis. Payment will be due
thirty (30) days from the date of each monthly invoice.
4.0 Term and Termination: (a). The term of this Agreement will commence on
the date in which the first launch of Sponsor's promotional listings on
iVillage (the "Launch Date") and continue for a period of two years
unless earlier terminated as set forth in paragraph 2 above or Section
6 of Exhibit A, or unless extended by mutual approval of the parties
(the "Term").
AGREED TO FOR SPONSOR (▇▇▇▇▇▇.▇▇▇, Inc.) AGREED TO FOR iVillage Inc:
-----------------
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /S/ ▇▇▇▇▇ ▇▇▇▇▇
Print Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Print Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Chief Executive Officer Title: Senior Vice President
Business and Legal Affairs
Date: 6/7/00 Date: 6/7/00
Address: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Exhibit A
General Terms and Conditions:
1.0 Grant of Non-Exclusive Rights: During the term of this Agreement,
Sponsor grants to iVillage, a non-exclusive license to reproduce, copy,
publish, and distribute Sponsor's Marks throughout the world, in
connection with Sponsor's advertisement(s) placed on the iVillage
Network in a manner as provided for by this Agreement. iVillage
acknowledges that all material goodwill associated with its use of the
Sponsor Marks shall inure to the benefit of Sponsor. Sponsor further
grants iVillage the right to link to Sponsor's WWW Site, from the
iVillage Network, to the extent necessary for iVillage to perform its
duties and obligations hereunder and to the extent applicable to this
Agreement. Sponsor agrees that any and all goodwill arising from or
related to any use of any of the iVillage Marks by Sponsor pursuant to
this Agreement will inure exclusively to the benefit of iVillage,
regardless of where Sponsor Marks reside.
2.0 Ownership of Rights: Sponsor and iVillage each acknowledge and agree
that: (a). as between the each other, each owns all right, title and
interest in its Marks and all derivatives thereof; (b). nothing in this
Agreement will confer in the other party any right of ownership in the
Marks; (c) it will not contest the validity of any of the Marks of the
other party; (d). no licenses or rights are granted by either party
except as expressly set forth in this Agreement; and (e) as between
iVillage and Sponsor, iVillage owns all right, title and interest in
any and all iVillage Member/Visitor/Subscriber data (both personal and
aggregate) derived pursuant to this Agreement.
3.0 Publicity: If so desired, iVillage and Sponsor may agree in the future
to collaborate on a joint press release ("Press Release") the terms and
conditions of which will be mutually approved by both parties.
4.0 Submissions: As appropriate, iVillage must receive all Sponsor
Submissions at least five business days prior to the scheduled date of
publication for each relevant Sponsor Submission. In the event iVillage
does not receive a Sponsor Submission prior to the applicable deadline;
iVillage may publish in substitution any prior Sponsor Submission until
such time as iVillage can reasonably begin publication of the
promotion. If no such prior Sponsor 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
Sponsor Submissions must be made in writing, with an e-mail copy sent
to ▇▇▇@▇▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇, and received by iVillage prior to the
applicable deadline. iVillage may, in its sole discretion, refuse at
any time and for any reason any Sponsor Submission and/or may refuse to
publish any advertisement provided by Sponsor. All Sponsors'
advertisements, including graphics, must comply with standard iVillage
guidelines and iVillage approval.
5.0 Reports and Tracking:
5.1 iVillage Use of DART Reports and Tracking: iVillage and Sponsor agree
that unless specifically stated otherwise in this Agreement, iVillage
will be using DART (Double Click) to act as the ad server for this
. iVillage and Sponsor will use the Impressions,
Click-Through and other tracking generated by the DART server for all
tracking and reporting purposes and Sponsor agrees to accept such DART
data as the official basis for measuring all services to be provided
under this Agreement.
5.2 Reports Provided To Sponsor: It is agreed that iVillage shall provide
Sponsor with a user name and password to access online reporting
through DART or other similar service. Any customization of reports
requested by Sponsor or its agent or representative shall be subject to
a reasonable charge as determined by iVillage. In addition, during the
term of this Agreement, iVillage shall provide Sponsor with mutually
agreed upon statistics regarding Sponsor's Co-Branded Area, where
applicable, including traffic thereon, in accordance with iVillage's
standard reporting formats.
5.3 Advertising Server other than DART: In the event another third party
advertisement serving and measurement company other than DART") is used
by Sponsor to serve and/or track Impressions, ads and Click-Throughs
and the iVillage report (as described above in Sections 5.1 and 5.2)
indicates a number of Impressions delivered that is greater than
Sponsor's ad server report, then the number of Impressions indicated by
iVillage's report will be deemed the determinative number of
Impressions delivered during the reporting period for purposes of the
duties and obligations related to guaranteed Impressions pursuant to
this Agreement.
6.0 Termination:
6.1 For Cause: In addition to any additional termination provisions
provided for in Section 4 of the Sponsorship Deliverables portion of
this Agreement, this Agreement may be terminated by either party
immediately upon notice if the other party: (a) becomes insolvent; (b)
files a petition in bankruptcy; (c) makes an assignment for the benefit
of its creditors; or (d) breaches any of its obligations under this
Agreement in any material respect, which breach is not remedied within
ten (10) days following written notice to such party. Except as set
forth in the termination provisions of this Agreement, this Agreement
can not be terminated.
6.2 Effect of Termination: The provisions of this Section 6, fees accrued
and earned but not yet paid and Sections 2, 7, 8, 9, 10, 11, 12 and 13
will survive any termination or expiration of the Agreement. Upon the
termination or expiration of this Agreement by either party for any
reason, both parties must return any information, materials or
properties of the other party within thirty (30) days of such
termination, or expiration, and Sponsor's advertisement (s),
promotional listings, links and, co-branded pages will be immediately
removed from iVillage.
7.0 Representations and Warranties: Each party represents to the other that
(a) it has the authority to enter into this Agreement and sufficient
rights to grant any licenses granted hereby, and (b) any material which
is provided to the other party and displayed on the other party's site
will not (i) infringe on any third party's copyright, patent,
trademark, trade secret or other proprietary rights or right of
publicity or privacy, (ii) violate any applicable law, statute,
ordinance or regulation; (iii) contain viruses, Trojan horses, worms,
time bombs, cancelbots, or other similar harmful or deterious
programming routines; (iv) be lewd, pornographic or obscene; or (v)
knowingly violate any laws regarding unfair competition,
anti-discrimination or false and misleading advertising.
8.0 General Warranty:
WITHOUT LIMITING THE FOREGOING REPRESENTATIONS AND WARRANTIES, IVILLAGE
MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR
IMPLIED, THAT THE TECHNICAL FUNCTIONING OF THE IVILLAGE NETWORK,
CO-BRANDED PAGES, BRIDGE PAGE (S) AND RELATED LINKS WILL BE ERROR FREE
AND UNINTERRUPTED DURING THE OFFER PERIOD. IN FURTHERANCE OF THE
FOREGOING, IVILLAGE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE
TECHNICAL FUNCTIONING OF THE IVILLAGE NETWORK AND RELATED LINKS.
SPONSOR'S SOLE AND EXCLUSIVE REMEDY AGAINST IVILLAGE FOR ANY DAMAGES
ARISING FROM THE PERFORMANCE OR NON-PERFORMANCE BY IVILLAGE OF ITS
OBLIGATIONS HEREUNDER AND IVILLAGE'S ENTIRE LIABILITY HEREUNDER WILL BE
AS PROVIDED FOR IN SECTION 9 BELOW.
9.0 Limitation of Liability Disclaimer Indemnification:
9.1 LIMITATION OF LIABILITY: EXCEPT AS SET FORTH IN SECTION 8 UNDER NO
CIRCUMSTANCES WILL EITHER PARTY BE LIABLE FOR INDIRECT, INCIDENTAL,
CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF IT HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING UNDER ANY PROVISION
OF THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR
ANTICIPATED PROFITS OR LOST BUSINESS. EXCEPT AS PROVIDED IN SECTION
9.2, WITH RESPECT TO LIABILITY ARISING UNDER THE INDEMNITY PROVISION,
AND EXCEPT FOR SPONSOR'S PAYMENT OBLIGATIONS, IN NO EVENT, WILL THE
LIABILITY OF EITHER PARTY FOR ANY REASON AND UPON ANY AND ALL CLAIMS
AND CAUSES OF ACTION, IN THE AGGREGATE, IN CONTRACT, TORT OR OTHERWISE,
ARISING FROM OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF
EXCEED THE FEES PAID TO IVILLAGE BY SPONSOR HEREUNDER IN A TERM OF ONE
YEAR OR LESS IN WHICH THE DAMAGES ARE INCURRED.
9.2 Indemnity: To the fullest extent permitted by law, iVillage and Sponsor
will each indemnify, defend and hold harmless, the other and the
other's affiliates and each of their respective officers, directors,
agents and employees, from and against all third party claims, damages,
losses, liabilities and expenses (including but not limited to
reasonable attorney fees) arising out of or resulting from the
indemnifying party's breach of (i) the duties and obligations of this
Agreement, or (ii) its warranties and representations . Notwithstanding
any language to the contrary, in consideration of the placement of
Sponsor advertisements on the iVillage Network and any linkage to the
Sponsor's Site, the Sponsor will indemnify and save iVillage and its
affiliated and related entities harmless from and against any and all
loss or expense arising out of the appearance of such advertisements on
the iVillage Network, or on the Sponsor's site as linked through the
iVillage Network, including without limitation, those resulting from
claims or suits for defamation, violation of privacy or publicity,
misrepresentation or copyright, trademark or patent infringement and
from and against any and all loss or expense arising out of the use,
purchase or consumption of any of Sponsor's products and or services.
9.3 Claims: Each party agrees to (i) promptly notify the other party in
writing of any indemnifiable claim and give the other party the
opportunity to defend or negotiate a settlement of any such claim at
such other party's expense and (ii) cooperate fully with the other
party, at that other party's expense, in defending or settling such
claim. Both parties reserve the right, at their expense, to assume the
exclusive defense and control of any matter otherwise subject to
indemnification.
10.0 Confidentiality: All information in this Agreement and/or relating to
the services performed under this Agreement is confidential.
11.0 Privacy Policy: Any use by Sponsor of Resulting Data (as defined herein
in Exhibit B) must comply with iVillage's Privacy Policy with respect
to the collection and/or dissemination of company specific or
individually specific Resulting Data which Sponsor may obtain as a
result of this Agreement. Sponsor will have no right to disclose or use
such Resulting Data unless such data is aggregated so that iVillage-
company-specific and iVillage Member/Subscriber/Visitor
individual-specific information is not identified and further provided
that such aggregated Resulting Data use is for internal business
purposes. In no event will any Resulting Data by which individual
iVillage Member/Visitor/Subscriber can be identified, contacted or
grouped by email address or other personal or individual
characteristics, be provided to Sponsor, used by Sponsor or disclosed
by Sponsor or disclosed to or used by a third party without permission
from each iVillage Member/Visitor/Subscriber by means of an "opt-in",
consistent with iVillage's opt-in policies.
12.0 Miscellaneous:
12.1 Notices: All notices, requests and other communications called for by
this Agreement will be deemed to have been given immediately if made by
telecopy or electronic mail (confirmed by concurrent written notice
sent first class U.S. mail, postage prepaid), if to Sponsor: and if to
iVillage at the physical and electronic mail addresses set forth on the
signature page of this Agreement, or to such other addresses as either
party will specify to the other. Notice by any other means will be
deemed made when actually received by the party to which notice is
provided.
12.2 Interest on Late Payments, Collection Fees: Commencing on the first day
after the date that each of the payments to iVillage becomes due,
Sponsor will be liable for a monthly rate of interest of not more than
1.5% per month, which interest shall be in addition to such fees due
and owing to iVillage. In the event iVillage is unable after a
reasonable attempt to collect the fees due from Sponsor, and is
required to turn the account over for collection to a collection agent,
Sponsor will be responsible for all additional collection and legal
fees which result therefrom.
12.3 Force Majeure: Neither party will be deemed to be in default of or to
have breached any provision of this Agreement as a result of any delay,
failure in performance or interruption of service, resulting directly
or indirectly from acts of God, acts of civil or military authorities,
civil disturbances, wars, strikes or other labor disputes, fires,
transportation contingencies, interruptions in telecommunications or
Internet services or network provider services, failure of equipment
and/or software, other catastrophes or any other occurrences which are
beyond such party's reasonable control.
12.4 Successors and Assigns: This Agreement will bind and inure to the
benefit of each party's permitted successors and assigns. Neither party
may assign this Agreement, in whole or in part, without the other
party's prior written consent; provided, however, that either party may
assign this Agreement without such consent in connection with any
merger, consolidation, or any sale of all or substantially all of such
party's assets or any other transaction in which more than fifty
percent (50%) of such party's voting securities is transferred.
Notwithstanding the foregoing, under no circumstances may Sponsor
assign this Agreement to a competitor of iVillage.
12.5 Governing Law: This Agreement and the rights and obligations of parties
hereunder shall be governed by and controlled by the laws of the State
of New York, applicable to contracts made and performed therein without
reference to the applicable choice of law provisions. All actions,
proceedings or litigation relating hereto will be instituted and
prosecuted solely within New York, New York. The parties consent to the
jurisdiction of the state courts of New York and federal court located
within such state and county with respect to any action, dispute, or
other matter pertaining to/arising out of this Agreement. The parties
agree in good faith to use reasonable efforts to resolve any and all
conflicts and controversies between them relating to this Agreement
informally and amicably between themselves before submitting any such
matter for judicial resolution. EACH PARTY WAIVES THE RIGHT TO TRIAL BY
JURY IN ANY MATTER OR DISPUTE BETWEEN THEM (AND/OR THEIR AFFILIATES)
ARISING UNDER THIS AGREEMENT OR OTHERWISE. There is no presumption for
or against either party as a result of such party being the principal
drafter of this Agreement.
12.6 No Waiver: No failure of either party to exercise or enforce any of its
rights under this Agreement will act as a waiver of such rights and no
waiver will be effective unless made in writing and signed by an
authorized representative of the waiving party.
12.7 Savings: In the event any provision of this Agreement will for any
reason be held to be invalid, illegal or unenforceable in any respect,
the remaining provisions will remain in full force and effect. If any
provision of this Agreement will, for any reason, be determined by a
court of competent jurisdiction to be excessively broad or unreasonable
as to scope or subject, such provision will be enforced to the extent
necessary to be reasonable under the circumstances and consistent with
applicable law while reflecting as closely as possible the intent of
the parties as expressed herein.
12.8 Entire Agreement; Amendments: This Agreement and its exhibits are the
complete and exclusive agreement between the parties with respect to
the subject matter hereof, superseding and replacing any and all prior
agreements, communications, and understandings, both written and oral,
regarding such subject matter. This Agreement may only be modified, or
any rights under it waived, by a written document executed by both
parties. Any contrary terms found in Sponsor's Purchase Order are null
and void.
13.0 ONLINE COMMERCE: To the extent that this Agreement includes duties and
obligations pertaining to online commerce the following additional
terms provided for in this Section 13 will apply to this Agreement and
be binding upon the parties.
13.1 Back to/Join iVillage Button: It is agreed that upon linking from the
iVillage Network to Sponsor's WWW Site, the Sponsor WWW Site will be
framed by the iVillage navigation (the "Frame"). The Frame will
include, at a minimum, a back to iVillage button, a join iVillage
button and an area where the iVillageVisitor/iVillage Member/iVillage
Subscriber will have an opportunity to sign up for an iVillage
Newsletter. Sponsor will not edit, modify or obstruct the Frame in any
manner without the prior written approval of iVillage.
13.2 Customer Service, Process and Fulfillment: Sponsor is solely
responsible for Sponsor's WWW Site, including customer service for
users linking to Sponsor's WWW Site through the iVillage Network,
product support, quality and availability of Sponsor products and
processing of orders and returns. Sponsor agrees to timely notify
customers of the status of their order(s) including the timely
confirmation of all orders. Sponsor is solely responsible for (a)
processing all orders for its products and (b) calculating, collecting
and paying all appropriate taxes with the payment processing. All
products offered via the iVillage Network will be supported by the same
warranty and return policies as generally offered by Sponsor.
13.3 Disclaimer: iVillage and Sponsor each specifically disclaim any
representations or warranty regarding (a) the amount of sales that
Sponsor may generate during the Term and (b) any economic or other
benefit that the other party might obtain through its participation in
this Agreement
13.4 Page Views: Sponsor agrees that it will use commercially reasonable
efforts to ensure that iVillage receives credit for all Page Views
generated from the iVillage Visitors/iVillage Members/iVillage
Subscribers who link from anywhere within the iVillage Network to the
Sponsor's WWW site and will provide all documentation reasonably
available to Sponsor as may be necessary to effectuate such credit to
iVillage.
13.5 Reporting: Sponsor will track purchases of Sponsor products by
customers who linked from the iVillage Network and agrees to provide
iVillage with monthly reports in a form to be mutually agreed to by the
parties, no less than fifteen (15) days following the end of each month
of the Term of this Agreement. Such reports will minimally include page
view traffic generated from the iVillage Network, including those from
the iVillage Home Page to the Sponsor WWW Site, as well as the number
of unique users, number of daily orders, total revenue and average
revenue per order. All such information will be treated as Confidential
Information.
Exhibit B
Definitions
1. "AOL Banner" means the banner featured across the iVillage Network
accessible only to those iVillage Member accessing iVillage via AOL
Links excluding chat rooms, message boards, and the following web-only
channels: Beauty, Book Club, Click!, Elections 2000, MoneyLife,
ParentsPlace, Pets and Shopping. Specifications: 234 X 60 pixels - 6K
maximum file size. GIF, JPEG or rich media; no limit on loops. All text
limit is 35 characters including spaces.
2. "Banners" means collectively the AOL Banners and the WWW Banners,
unless specifically, individually indicated.
3. "Buttons" means collectively the Don't Miss Mention, the Shopping Logo
and the Message Board Sponsorship Button, unless each is specifically,
individually indicated.
4. "Click-Through" means the number of times an iVillage Member/ Visitor/
Subscriber clicks on a Link within the iVillage Network sending the
iVillage Member/ Visitor/Subscriber to a Sponsor URL as reported by
iVillage.
5. "Co-Branded Areas" when applicable, means the area, or pages located on
the iVillage Network, where Sponsor Marks and iVillage Marks are
co-branded in conjunction with Sponsor Promotions in a way that
maintains the iVillage Network's look and feel, style, design, etc.
6. "Don't Miss Mentions" means the button featured on some top level and
most sub-level pages across the iVillage Network. This is currently not
available on ▇▇▇▇▇▇▇▇▇.▇▇▇, Parent Soup, ParentsPlace. Specifications:
120 x 90 - 6K maximum file size. GIF, JPEG or rich media; no limit on
loops. All text limit is 35 characters including spaces.
7. "Don't Miss Tagline" means the tagline featured on some top level and
most sub-level pages across the iVillage Network. This is currently not
available on ▇▇▇▇▇▇▇▇▇.▇▇▇ and Shopping. Specifications: Dimensions
120x 90. Maximum 100 character limit including spaces.
8. "GIF" means Graphic Interchange Format.
9. "HTML Newsletter Taglines" (also referred to as "Mentions"), means the
tagline featured across iVillage's HTML newsletters. Each HTML
newsletter has three text tagline ad placements served on a rotational
basis. Dimensions: 468 x 90. Maximum 195 character limits including
spaces. 45 characters header text; 150 character body text. (See
example on Exhibit C)
10. "Impressions" means the number of times that each individual Sponsor
placement, including but not limited to Banner, Button, "Don't Miss"
Tagline, Newsletter Mention, Editorial Placement or Permanent Placement
is served to a browser or email application. Unless otherwise
specifically provided for herein, all Impressions are delivered
throughout the iVillage Network ("▇▇▇") in the form of any combination
of Buttons, Permanent Placements, Banner Newsletters, Don't Miss
Taglines or Mentions at iVillage's sole discretion. Impressions will be
run evenly throughout the Term, unless otherwise agreed to by the
parties herein, or provided that Sponsor is not responsible for any
circumstance that may cause Impressions to be unevenly served
11. "iVillage Home Page" means the WWW page found at the URL
▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇.
12. "iVillage Network" means the existing domestic online network of
English language websites owned and/or controlled by iVillage which
include channels covering leading topics of interest to women, Internet
tools, elements and online commerce. Online as provided for herein
includes any means or platforms for distribution of digital information
via the Internet, now known or hereinafter developed. The rights
granted herein to Sponsor will not apply to any future acquisitions by
iVillage of web sites, content, channels, joint ventures or similar
business partnerships or arrangements, if each was not a part of the
iVillage Network as of the Effective Date herein.
13. "iVillage Marks" means the trademarks, service marks, logos and other
distinctive brand features of iVillage that are used in or relate to
the iVillage Network.
14. "iVillage Member" means anyone who completes the ▇▇▇▇▇▇▇▇.▇▇▇ (or
similar) registration form on an ▇▇▇▇▇▇▇▇.▇▇▇ site. Also some members
request no email from us and therefore cannot be contacted that way -
only via the site itself.
15. "iVillage Visitor" means any individual who comes to an ▇▇▇▇▇▇▇▇.▇▇▇
site and views at least one page.
16. "JPEG" means Joint Photographic Experts Group format.
17. "Jump Page" means the world wide web page hosted by Sponsor which (i)
includes content and has a design which is mutually agreed upon by the
parties; (ii) combines Sponsor and iVillage logos; and (iii) contains a
salutation personalized for visitors from the iVillage Site.
18. "Message Board Sponsorship Button" means the Sponsor button featured
across all iVillage Message Boards adjacent to banner at top of boards.
Must be specifically included in the Agreement, or it does not apply.
Specifications: 120 x 60 pixels - 5K maximum file size. GIF, JPEG or
rich media; no limit on loops. Alt text is 35 characters including
spaces.
19. "Page View" means a single viewing of a WWW page, whether or not the
viewer acts on an advertisement located on that WWW page or not.
20. "Permanent Placements" means a permanent link or a permanent placement
of Sponsor's promotion in a designated manner and of the iVillage
Network as more specifically defined pursuant to sponsorship
deliverable on page one herein.
21. "Resulting Data" means the collection or sharing over of personally
identifiable information obtained on iVillage
Members/Visitors/Subscribers as a result of use of the iVillage
Network, Co-Branded Pages, Sites or Sponsor's Web Site.
22. "Shopping Logo" means the logo featured on the front page and other
relevant areas of the shopping channel of the iVillage Network.
Specifications: 88 x 31 pixels - 4K maximum file size. GIF, JPEG or
rich media; no limit on loops. No alternate text allowed.
23. "Special Offer" means any promotions offered exclusively to iVillage
Visitors and/or Members by Sponsor, which consist of the specifics as
more clearly defined on page one of this Agreement.
24. "Sponsor Marks" means all trademarks, service marks, logos and other
distinctive brand features of Sponsor that are used in Sponsor's
advertising.
25. "Sponsor's WWW Site" means Sponsor site located at a specific URL on
the world wide web.
26. "Sponsor Submission" means any graphic (GIF) file, text file, or file
of such other format as iVillage may designate from time to time,
supplied by Sponsor to be published by iVillage on the iVillage Network
and which may contain a link to Sponsor's site or to a Web site
specified by Sponsor and agreed to by iVillage or any and all
information and items necessary for iVillage's publication of any
material supplied by Sponsor, including changes and updates thereto.
27. "URL" means an address identifying among other things, the server on
which a WWW page or WWW site resides.
28. "WWW Banner" means the banner featured across the iVillage Network and
in HTML newsletters. WWW Banner specifications: 468 x 60 pixels -
10Kmaximum file size. GIF, JPEG or rich media; no limit on loops. Alt
text limit is 35 characters including space. WWW Banner is
significantly different from an AOL Banner.
29. "WWW" means the world wide web.
