PARTNERING AGREEMENT
This Agreement is entered into as of October _27_, 2000 (the "Effective Date")
by and between XxxxxxxxxXxxxxx.xxx, Inc., a Delaware corporation, with its
principal office at 0000 Xxxxx Xxxxx Xxxxxx, Xxx Xxxxx, XX 00000 (the "Company")
and XXXX.xxx, LLC, a New York Corporation, with offices at 00 Xxxxxxxxx Xxxxxx,
Xxxxxx, XX 00000 (the "Partner").
RECITALS
WHEREAS the Company operates an e-commerce website that sells fragrances and spa
products targeted at both men and women, located at
xxxx://xxx.xxxxxxxxxxxxxxx.xxx (the "Company Site");
WHEREAS Partner operates an entertainment-focused e-commerce website that
targets both men and women, located at xxxx://xxx.xxxx.xxx (the "Partner Site");
WHEREAS Partner and Company (collectively "Parties"; individually "Party") wish
to enter into this Agreement where joint marketing promotions will be run on
both the Partner and Company's websites and Partner will receive bottles of
perfumes for giveaway and marketing promotions from Fragrance Direct and
Fragrance Direct will receive marketing and advertising promotions from
XXXX.xxx.
NOW THEREFORE, in consideration of the Recitals and other good and valuable
consideration, the receipt and sufficiency of which hereby are acknowledged, the
Parties agree as follows:
1. OBLIGATIONS OF PARTIES
1.1 Partner's Obligations:
During the term of this Agreement:
(a) As mutually agreed by the Parties from time to time in a
Program Addendum (as hereinafter defined), offer a variety
of special offers for, or discounts on, product purchases on
XXXX.xxx to Fragrance Direct customers.
(b) Participate in joint development and approval of creative
for each new promotion and deliver all necessary artwork
(logo, etc.) to Xxxxxxxxxxxxxxx.xxx. Prior to signature of
each program development and creative requirements will be
outlined in the addended agreement.
1.2 Company's Obligations:
During the term of this Agreement:
(a) As mutually agreed by the Parties from time to time in a
Program Addendum, offer a variety of special offers for, or
discounts on, product purchases on XxxxxxxxxXxxxxx.xxx to
XXXX.xxx customers on the XXXX.xxx homepage and Women's page
(b) Offer special discount to TWEC customers on their purchases
at Fragrance Xxxxxx.xxx. Discount will be mutually agreed to
by both parties and rolled out for the holiday season;
(c) Participate in joint development and approval of creative
for each new promotion and deliver all necessary artwork
(logo, etc.) to XXXX.xxx in a timely manner;
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1.3 Ongoing promotions
(a) XXXX.xxx and XxxxxxxxxXxxxxx.xxx will continue to work
together on new and ongoing promotions. Prior to the
commencement of each new promotion, the development and
creative requirements and the related fees will be defined
and documented in an addendum to this Agreement signed by
both Parties (each, a "Program Addendum"). Except as
expressly provided in a Program Addendum, in the event of
any conflict or inconsistency between a Program Addendum and
this Agreement, the terms and conditions established in this
Agreement shall control.
(b) Any mutual promotions where user emails are required on
either site will have an opt-out function and both companies
will share the email addresses of those users who have not
optedout of promotions.
(c) Both Parties will work with each other's marketing team to
create a comprehensive marketing plan for the initial
one-year term. Each Party agrees to begin work within 10
days of signature of this Agreement and will complete the
plan within 60 days.
(d) XxxxxxxxxXxxxxx.xxx through it's parent, PTN MEDIA INC. may
make the following talent available for online chats: Xxxxx
Xxxxx, Xxxxx Xxxxxxx, Xxxxxxxx Xxxxx Xxxxx, and Xxxxx Xxxxxx
and other talent (TBD). XxxxxxxxxXxxxxx.xxx will use its
best efforts to secure such promotion opportunities but
makes no representation or warranty that will be able to do
so due to a number of factors including artists professional
availability.
(e) Promotion of XXXX.XXX on the Xxxxx Show is subject to
availability, show context, and promotional opportunities.
1.4 Consideration
(a) Payment terms for each additional promotion will be clearly
defined in the related Program Addendum.
(b) Invoices will be provided by both companies to the other
within 30 days of signature of this Agreement.
2. TERM AND TERMINATION
2.1 Term: The term of this Agreement shall commence on the Effective
Date and shall continue for one (1) year. Thirty (30) days prior
to end of then current term, both Parties agree to negotiate in
good faith the option of entering into a renewal term.
2.2 Termination: Either Party may terminate this Agreement: (i)
immediately upon written notice if at any time the other Party is
in material breach of any warranty, representation, term, or
condition of this Agreement and fails to cure that breach within
thirty (30) days after written notice thereof; or (ii) upon sixty
(60) days written notice to the other Party, without cause.
2.3 Effect of Termination: Upon termination of this Agreement,
Company will discontinue all links to the Partner Site. All
payments that have accrued prior to termination or expiration of
this Agreement will be paid in full within thirty (30) days
thereof. Termination of this Agreement shall not act as a waiver
of any breach of this Agreement or as a release of either Party
from any liability for breach of such Party's obligations under
this Agreement.
3. RIGHT TO USE PARTIES' TRADEMARKS
Partner hereby grants to Company from the Effective Date until the
termination of this Agreement, the non-exclusive, non-transferable,
royalty free, worldwide license to use the name of Partner, as well as
the trademarks of Partner in connection with the performance of this
Agreement; provided, however, that each such use shall be subject to
the prior written approval of Partner with respect to the use and
presentation of Partner's name and marks, the quality of the materials
in which they are used, and the quality of the goods with which they
are associated.
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Company hereby grants Partner from the Effective Date until the
termination of the Agreement, the non-exclusive, non-transferable,
royalty free, worldwide license to use the name of Company, as well as
the trademarks of Company in connection with the performance of this
Agreement; provided, however, that each such use shall be subject to
the prior written approval of Company with respect to the use and
presentation of Company's name and marks, the quality of the materials
in which they are used, and the quality of the goods with which they
are associated.
4. REPRESENTATIONS, WARRANTIES, AND INDEMNIFICATION
4.1 Company warrants and represents that: (a) it has the necessary
rights to enter into this Agreement; (b) its entry into this
Agreement will not cause any breach of its obligations to third
parties; (c) Company's Site, to the best of its knowledge, does
not infringe any personal, intellectual property, or other rights
of any third party; and (d) in performing its obligations
hereunder, Company will comply with all laws, rules and
regulations of all governmental bodies having jurisdiction.
Company hereby indemnifies and holds harmless Partner and its
subsidiaries, affiliates, officers, employees and agents from and
against any loss, liability, claim, damage, costs and expenses
(including reasonable attorneys' fees and litigation expenses)
arising out of or as a result of Company's breach of this
Agreement or any breach of Company's representations and
warranties herein.
4.2 Partner warrants and represents that: (a) Partner has the
necessary rights to enter into this Agreement; (b) its entry into
this Agreement will not cause any breach of its obligations to
third parties; (C) Partner's Content to the best of its
knowledge, does not infringe any personal, intellectual property
or other rights of any third party; and (d) in performing its
obligations hereunder, Partner will comply with all laws, rules
and regulations of all governmental bodies having jurisdiction.
Partner hereby indemnifies and holds harmless Company and its
subsidiaries, affiliates, officers, employees and agents from and
against all claims, damages, costs and expenses (including
reasonable attorneys' fees and litigation expenses) arising out
of or as a result of Partner's breach of this Agreement or any
breach of Partner's representations and warranties herein.
5. DISCLAIMER
5.1 Limitation of Liability: IN NO EVENT SHALL EITHER PARTY BE LIABLE
TO THE OTHER FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR
INDIRECT DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY,
ARISING OUT OF THIS AGREEMENT, WHETHER OR NOT SUCH PARTY IS
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING
ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
6. CONFIDENTIALITY
6.1 Each Party shall, during the term of this Agreement and also
thereafter, keep in strict confidence and shall not use for any
other purposes (except for such purposes granted or permitted
under this Agreement) the execution of this Agreement itself and
any substance thereof, and any confidential information of the
other Party that comes into its possession pursuant to, as a
result of, or in the performance of this Agreement.
6.2 The confidentiality obligation shall not apply to any information
that: (a) is generally known to the public without the default of
the information-receiving party; (b) is independently developed
by the information-receiving party; (c) the information-receiving
party receives
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from a third party who has no confidential obligation for such
information; (d) is already known to the receiving party prior to
receipt of such information; or (e) is disclosed pursuant to the
valid legal process of a government agency.
7. MISCELLANEOUS
7.1 Integration: This Agreement incorporates the entire
understandings among the Parties with respect to its subject
matter and may not be amended except by an instrument in writing
signed by both Parties.
7.2 Non-assignment: Neither Party's rights, duties or
responsibilities under this Agreement may be assigned, delegated
or otherwise transferred in any manner, without the prior written
consent of the other Party, which consent shall not be
unreasonably withheld or delayed. However, if either Party is
wholly acquired or a majority of either Party or its business is
acquired (greater than 50% ownership) by another company during
the Term of this Agreement, Company may assign the Agreement to
the acquiring Company. In such case, any acquiring company must
assume all obligations of this Agreement.
7.3 Severability: If any provision of this Agreement is held by a
court of competent jurisdiction to be unenforceable, invalid or
void in any respect, no other provision of this Agreement shall
be affected thereby and all other provisions of this Agreement
shall nevertheless be carried into effect.
7.4 Remedies: All rights and remedies of the Parties are separate and
cumulative. No right or remedy, whether exercised or not, shall
be deemed to be to the exclusion of or to limit or prejudice any
other rights or remedies that the Parties may have. The Parties
shall not be deemed to waive any of their rights or remedies
under this Agreement, unless such waiver is in writing and signed
by the party to be bound. No delay or omission on the part of
either party in exercising any right or remedy shall operate as a
waiver of such right or remedy or any other right or remedy. A
waiver on any one occasion shall not be construed as a bar to or
waiver of any right or remedy on any future occasion.
7.5 Independent Contractors: Parties are independent contractors, and
nothing in this Agreement shall be construed to create a joint
venture, partnership, or agency relationship.
7.6 Force Majeure: A party will not be deemed to have materially
breached this Agreement to the extent that performance of its
obligations or attempts to cure any breach are delayed or
prevented by reason of an act of God, fire, natural disaster,
accident, act of government, or any other cause beyond the
reasonable control of that party; provided that the party whose
performance is delayed or prevented promptly notifies the other
party of the nature and duration of the force majeure event.
7.7 Governing Law: This Agreement shall be construed and governed in
accordance with the laws of the State of New York, and the
parties consent to jurisdiction and venue in the state and
federal courts sitting in the State of New York. In any action or
suite to enforce any right or remedy under this Agreement or to
interpret any provision of this Agreement, the prevailing party
shall be entitled to recover its costs, including reasonable
attorney's fees.
7.8 Notices: All notices, demands, requests, consents or other
communications regarding this Agreement shall be effective in
writing only, and shall be deemed to have been received two (2)
business days after they are mailed by certified or registered
U.S. mail, return receipt requested, postage prepaid or delivered
to a nationally recognized express delivery service.
7.9 Facsimile Counterparts: This Agreement may be signed in fax
counterpart copies, all of which taken together shall be deemed
one original.
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IN WITNESS WHEREOF, the Parties have executed this Agreement by their duly
authorized representative the day and year first written above.
XXXX.xxx, LLC XxxxxxxxxXxxxxx.xxx
By: /s/ Xxxxxxx Xxxxx By: /s/ Xxxxx Xxxxxx
-------------------------------- ---------------------------------
Name: Xxxxxxx Xxxxx Name: Xxxxx Xxxxxx
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Title: General Manager, E-Commerce Title: President
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Date: 11/3/00 Date: (illegible)
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Addendum 1 to Partnering Agreement Dated as of October , 2000
by and between
XxxxxxxxxXxxxxx.xxx, Inc.
and
XXXX.xxx, LLC
Fall Promotion
1. OBLIGATIONS OF PARTIES
1.1 Partner's Obligations:
(a) Fall promotion: Provide fulfillment and shipping and
handling of "gift with purchase" fragrances supplied by
Fragrance Direct for this particular Fall Promotion.
(b) Promote Fragrance Direct's "free gift with purchase" offer
on the TWEC giveaway page and on other areas of the site,
and on other TWEC partner promotion areas.
(c) Will build "gift with purchase" page that will reside on the
XXXX.xxx website and is expected to go live by October 13th,
based on approval.
1.2 Company's Obligations:
(a) Fall Promotion: Supply XXXX.xxx with 48 promotional size
bottles of Candies fragrance for Women and 48 promotional
size bottles of Cool Water fragrance for Men to be given
away to XXXX.xxx's customers as a "gift with purchase," or
some other giveaway from Fragrance Direct. The fragrance
will be shipped to Xxxxxx Xxxxxxxxx at XXXX.xxx;
(b) Company will promote the "gift with purchase" on multiple
areas of the Company Site, and on other Fragrance Direct
partner promotion areas.
2. Consideration
(c) Fragrance Direct will invoice XXXX.xxx for the cost of the
promotional fragrances totaling $1,200.00
(d) XXXX.xxx will invoice Fragrance Direct for the cost of
marketing promotions totaling $1,200.00
XXXX.xxx, LLC XxxxxxxxxXxxxxx.xxx
By: /s/ Xxxxxxx Xxxxx By: /s/ Xxxxx Xxxxxx
-------------------------------- ---------------------------------
Name: Xxxxxxx Xxxxx Name: Xxxxx Xxxxxx
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Title: General Manager, E-Commerce Title: President
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Date: 11/3/00 Date:
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