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Exhibit 10.31
CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
ASTERISKS DENOTE OMISSIONS.
This (the "Agreement") is entered into as of the
11th day of March, 1999 by and between ▇▇▇▇▇▇.▇▇▇, inc., a Delaware corporation,
located at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
("▇▇▇▇▇▇.▇▇▇"), and Vitamin Shoppe Industries, Inc., a New Jersey corporation,
located at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ("Sponsor").
WHEREAS, ▇▇▇▇▇▇.▇▇▇ develops, markets and maintains an integrated suite
of Internet enabled, consumer oriented software applications and services,
including but not limited to, ▇▇▇▇▇▇.▇▇▇. electronic data interchange services,
and advertising and promotional services on the Internet at the website
▇▇▇▇://▇▇▇.▇▇▇▇▇▇.▇▇▇ (together with any successor or replacement websites, the
"▇▇▇▇▇▇.▇▇▇ Website");
WHEREAS, Sponsor markets and sells vitamins and nutritional supplements
on the Internet at the website ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ (together with any
successor or replacement websites, the "Sponsor Website"; and together with the
▇▇▇▇▇▇.▇▇▇ Website, the "Sites"); and
WHEREAS, Sponsor desires to have certain exclusive rights with respect
to vitamins and nutritional supplements on the ▇▇▇▇▇▇.▇▇▇ Website and to be the
exclusive vitamin and nutritional supplement tenant in the E-Commerce area of
the ▇▇▇▇▇▇.▇▇▇ Website and ▇▇▇▇▇▇.▇▇▇ desires to promote Sponsor for vitamin and
nutritional supplements and to make Sponsor its' exclusive vitamin and
nutritional supplement tenant pursuant to the terms and conditions contained in
this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein and for other good and valuable consideration the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I.
EXCLUSIVE VITAMIN SPONSOR
I.1. EXCLUSIVE VITAMIN SPONSOR. Throughout the Term (as defined below),
Sponsor shall be the sole and exclusive vitamin and supplement sponsor of, and
the sole and exclusive vitamin and supplement advertiser on, the ▇▇▇▇▇▇.▇▇▇
Website, and in furtherance thereof, ▇▇▇▇▇▇.▇▇▇ shall not (i) place any names,
trademarks, links, buttons, advertisements or content (other than editorial
content which does not contain links) of any Sponsor Competitor (as defined
below) (collectively, "Competitor Content"), or any links which link directly to
any Competitor Content, on any area of the ▇▇▇▇▇▇.▇▇▇ Website; or (ii) other
than Sponsor banner advertisements, allow any banner advertisements for or
promoting the sale of vitamins or nutritional supplements to appear on the
▇▇▇▇▇▇.▇▇▇ site; provided, however, that the [*****] link which is currently on
the ▇▇▇▇▇▇.▇▇▇ Website may continue in its current form until [*****]. For
purposes of this Agreement the term "Sponsor Competitor" means: (i) any entity
set forth on EXHIBIT A attached hereto, which EXHIBIT A may be updated from time
to time
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CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
ASTERISKS DENOTE OMISSIONS.
by Sponsor, subject to the reasonable approval of ▇▇▇▇▇▇.▇▇▇; or (ii) any entity
which derives more than [*****] of its revenues from the sale of vitamins and/or
nutritional supplements.
I.2. SPONSOR PLACEMENTS. During the Term, in no way limiting the
foregoing in Section 1.1, Sponsor will receive the following sponsorship and
promotional placements on the ▇▇▇▇▇▇.▇▇▇ Website.
(i) Sponsor shall be the exclusive sponsor of the Nutrition
Center on the ▇▇▇▇▇▇.▇▇▇ Website and each area (other than the "Daily Special"
area, the "Healthy Recipes" area and any other area which may be created in the
future which specifically relates to cooking or food recipes (collectively, the
"Excluded Areas")) within the Nutrition Center, including, the "Vitamins &
Supplements" area, the "Vitamins and Minerals" area, the "Nutrition News" area,
the "Nutrition for Healthy Living" area and the "Nutrition for your Condition"
area (collectively, the "Sponsor Areas"). In furtherance of the foregoing,
▇▇▇▇▇▇.▇▇▇ agrees that: (A) it shall place a permanent Sponsor logo containing a
Sponsor link on each page of the Sponsor Areas; (B) Sponsor banner advertising
(which advertising shall be served by Sponsor) on the top of at least [*****]
of all page views of pages within the Sponsor Areas; and (C) it shall allow
Sponsor, in Sponsor's sole discretion, to place Sponsor impressions in up to all
four of the e-commerce tiles appearing on pages within the Sponsor Areas; (D)
only Sponsor e-commerce tiles shall appear within the Sponsor Areas; and (E)
Sponsor links may link, in Sponsor's sole discretion, to either the Sponsor
Website or to Sponsor's Vitamin Buzz website ("Vitamin Buzz"). Sponsor shall be
treated no less favorably in Sponsor Areas than any other similarly situated
sponsor of the ▇▇▇▇▇▇.▇▇▇ Website is treated within its sponsored areas of the
▇▇▇▇▇▇.▇▇▇ Website. The Excluded Areas may be sponsored by entities other than
Sponsor, provided, that no Sponsor Competitor, or any drugstore, including,
without limitation, [*****], [*****] or [*****] may sponsor any of the Excluded
Areas. SCHEDULE 1.2(i) is a page shot mock-up of the Nutrition Center home page
and the home page of each major area within the Nutrition Center, substantially
as they will appear on their respective launch dates.
(ii) ▇▇▇▇▇▇.▇▇▇ shall place a permanent Sponsor logo on the
home page of the ▇▇▇▇▇▇.▇▇▇ Website so that it appears prominently. Such logo
shall contain a link to, in Sponsor's sole discretion, either Sponsor's Website
or the Vitamin Buzz. No logo of any other similarly situated sponsor of the
▇▇▇▇▇▇.▇▇▇ Website shall be more prominently displayed on the home page of the
▇▇▇▇▇▇.▇▇▇ Website, whether in terms of size, placement or frequency.
(iii) From time to time, ▇▇▇▇▇▇.▇▇▇ shall create content which
features vitamins and nutritional supplements. Sponsor's Advertising Content
shall be displayed on such pages which host vitamins and nutritional supplement
content to the same extent and subject to the same restrictions as such Sponsor
Advertising Content is displayed in the Sponsor Areas.
(iv) As used in this Section 1.2, the term exclusive with
respect to any area means that: (A) Sponsor shall be the sole and exclusive
vitamin and nutrition supplement provider in such area, and that no Competitor
Content, or links which link directly to any Competitor Content, shall appear in
such area where Sponsor has such exclusivity; and (B) other
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than Sponsor banner advertisements, no banner advertisements for or promoting
the sale of vitamins or nutritional supplements shall appear in such area.
▇▇▇▇▇▇.▇▇▇'s obligations with respect to each area of the ▇▇▇▇▇▇.▇▇▇ Website set
forth in this Section 1.2 shall also apply to all areas which are successors or
replacements to such areas and to all new vitamin and nutrition areas on the
▇▇▇▇▇▇.▇▇▇ Website launched on the ▇▇▇▇▇▇.▇▇▇ Website after the date of this
Agreement. Only Sponsor may promote the sale of vitamins and supplements in the
Sponsor Areas.
I.3. IMPRESSIONS. Not including any permanent Sponsor links, banners or
buttons pursuant to Section 1.2, ▇▇▇▇▇▇.▇▇▇ shall, during the Initial Term (as
defined below) provide at least [*****] advertising banner and e-commerce
tile impressions consisting of Sponsor Advertising Content, of which
approximately [*****] shall be delivered during each month of the Initial
Term. If by the end of the Initial Term ▇▇▇▇▇▇.▇▇▇ has not delivered the
foregoing number of impressions, then, as Sponsor's sole remedy for such breach,
the Term of this Agreement shall be extended until ▇▇▇▇▇▇.▇▇▇ has satisfied its
obligations under this Section.
I.4. ▇▇. ▇▇▇▇ HEALTH LINKS. In addition to the fees specified in
Section 2.5.1, Sponsor shall pay [*****] to ▇▇▇▇▇▇.▇▇▇ and in exchange therefore
shall have the right to use as many ▇▇. ▇▇▇▇ Health Links as Sponsor, in its
sole discretion, wishes to use, all in accordance with the terms of the
▇▇▇▇▇▇.▇▇▇ Healthlinks Agreement, the form of which is attached hereto as
EXHIBIT B.
I.5. CONTENT LICENSE TO THIRD PARTIES. If ▇▇▇▇▇▇.▇▇▇ wishes to allow
any area on the ▇▇▇▇▇▇.▇▇▇ Website set forth in this Section 1 in which Sponsor
is the exclusive sponsor of vitamins and supplements to be displayed on any
website other than the ▇▇▇▇▇▇.▇▇▇ Website (regardless of whether such other
website is owned by ▇▇▇▇▇▇.▇▇▇ or not and regardless of whether such content is
served up by ▇▇▇▇▇▇.▇▇▇ or by a third party) and if ▇▇▇▇▇▇.▇▇▇ is able to
control the advertising placements within or sponsorship of such area on such
third party website, then ▇▇▇▇▇▇.▇▇▇ shall, prior to contacting any other party
with respect to such advertisements or sponsorship, notify Sponsor in writing
prior to the launch of such area and shall negotiate in good faith with Sponsor
in order to allow Sponsor to be the exclusive advertiser on and sponsor of such
area on such third party website. If Sponsor and ▇▇▇▇▇▇.▇▇▇ have not reached an
agreement on the principal terms of such agreement within 15 business days after
Sponsor is notified of such opportunity, ▇▇▇▇▇▇.▇▇▇ shall be free to commence
negotiations with other parties with respect to such opportunities.
I.6. MODIFICATIONS. Each party reserves the right to modify the design,
organization, structure, look and feel, navigation and other elements of its
Site, provided, that ▇▇▇▇▇▇.▇▇▇ may not, without the prior written consent of
Sponsor, substantially alter, change or modify the look, feel or functionality
of the Sponsor Areas of the ▇▇▇▇▇▇.▇▇▇ Website, so as to materially change the
Sponsor's prominence or placements within such areas.
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ASTERISKS DENOTE OMISSIONS.
ARTICLE II.
SPONSORSHIP POLICY
II.1. CONTENT. For each of the placements described in Section 1,
including all banner advertisements and e-commerce tiles, Sponsor shall provide
▇▇▇▇▇▇.▇▇▇ with all content including all trademarks, logos or banners (the
"Sponsor Advertising Content"), in accordance with the specifications set forth
on EXHIBIT C attached hereto, which will be displayed on the ▇▇▇▇▇▇.▇▇▇ Website
and which will link, in Sponsor's discretion, to either the Sponsor Site or
Vitamin Buzz. The parties hereto agree to cooperate and work together in the
establishment of all links, buttons and banners placed pursuant to this
Agreement. Links from one party's Site to the other party's Site shall in no way
alter the look, feel or functionality of the linked Site.
II.2. CHANGES AND CANCELLATIONS. Any cancellations or change orders
must be made in writing and acknowledged by ▇▇▇▇▇▇.▇▇▇. Sponsor shall not be
required to change Sponsor Advertising Content more often than once per month.
Sponsor shall provide ▇▇▇▇▇▇.▇▇▇ with Sponsor Advertising Content artwork at
least five business days in advance of the publication date.
II.3. STATISTICS. ▇▇▇▇▇▇.▇▇▇ shall provide Sponsor with Sponsor usage
reports on a monthly basis. Sponsor shall have the right to use such data for
its internal business purposes, but may not provide such data for use by third
parties. Such reports shall contain substantially the same types of information
delivered to other of ▇▇▇▇▇▇.▇▇▇'s similarly situated partners, which reports
will include information regarding impressions, clickthroughs and any
information known about the users of such areas in aggregate form.
II.4. PUBLICATION ERROR. In the event of a publication error in the
Sponsor Advertising Content arising exclusively from the fault of ▇▇▇▇▇▇.▇▇▇,
Sponsor shall notify ▇▇▇▇▇▇.▇▇▇ of such error and ▇▇▇▇▇▇.▇▇▇ will use reasonable
efforts to promptly correct the error.
II.5. PAYMENT.
II.5.1. FEES. The fee for the placements and other rights
provided under this Agreement for the Initial Term (as defined below) is
[*****], of which [*****] is payable within 30 days of the date of this
Agreement, with the balance of such fee payable by Sponsor in 11 (eleven)
consecutive equal installments of [*****] each, payable by the 15th day of each
month of the Initial Tenn commencing on the month following the month of the
Launch Date (as defined below).
II.5.2. TAXES. Sponsor shall be responsible for the collection
of any and all value added, consumption, sales, use or similar taxes and fees
payable with respect to all sales made on the Sponsor Website.
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ASTERISKS DENOTE OMISSIONS.
ARTICLE III.
OWNERSHIP OF DATA
III.1. USER DATA. ▇▇▇▇▇▇.▇▇▇ requests its users ("Individual Users"),
to provide personal information when they sign up for certain services including
requesting information on a specific disease, chat rooms and forums ("User
Data"). Such User Data is owned by each Individual User and ▇▇▇▇▇▇.▇▇▇ does not
use or disclose any such User Data without the consent of the Individual User.
III.2. DATA RELEASE TO SPONSOR. ▇▇▇▇▇▇.▇▇▇ shall provide to Sponsor any
and all User Data for which the Individual User has specifically authorized
release to Sponsor. In the event that an Individual User grants rights to
Sponsor for use of his User Data, Sponsor shall use its best efforts to keep
User Data confidential and shall only use such data in an ethical manner.
Sponsor may use User Data for its owns purposes, but User Data may not be
disclosed, sold, assigned, leased or otherwise disposed of to third parties by
Sponsor.
III.3. DATA CONFIDENTIALITY. The User Data shall be ▇▇▇▇▇▇.▇▇▇
Confidential Information under Article 5 and shall in addition be subject to the
terms of this Article 3. Sponsor shall be liable for the conduct of its
employees, agents and representatives who in any way breach this Amendment.
Sponsor's obligations to treat the User Data as Confidential Information under
Article 5 and this Article 3 shall continue in perpetuity following termination
of this Amendment.
III.4. SPONSOR USER DATA. All users on the Sponsor Website, including,
users linked to the Sponsor Website from the ▇▇▇▇▇▇.▇▇▇ Website, will be deemed
to be customers of Sponsor. Accordingly, all rules, policies and operating
procedures of Sponsor concerning customer orders, customer service and sales
will apply to those customers. Sponsor may change its policies and operating
procedures at any time. Sponsor will determine the prices to be charged for
products and other merchandise sold on the Sponsor Website in accordance with
its own pricing policies. Prices and availability on the Sponsor Website may
vary from time to time. Notwithstanding Section 3.3, the parties hereto hereby
agree that title to any user information of any users on the Sponsor Website,
including but not limited to the name, address and e-mail address of users,
obtained by Sponsor from such users shall be owned by the Sponsor. The parties
hereto agree that pursuant to this Section 3 they may each collect and own
similar information from and with respect to individuals who visit each of their
Sites.
ARTICLE IV.
LICENSES
IV.1. LICENSES.
4.1.1 Subject to the terms and conditions hereof, Sponsor
hereby represents and warrants that it has the power and authority to grant, and
does hereby grant to ▇▇▇▇▇▇.▇▇▇ a non-exclusive, non-transferable, royalty-free,
worldwide license to reproduce and display all
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ASTERISKS DENOTE OMISSIONS.
logos, trademarks, trade names and similar identifying material relating to
Sponsor (the "Sponsor Marks") solely in connection with the promotion, marketing
and distribution of the parties and the Sites in accordance with the terms
hereof, provided, however, that ▇▇▇▇▇▇.▇▇▇ shall other than as specifically
provided for in this Agreement, not make any specific use of any Sponsor ▇▇▇▇
without first submitting a sample of such use to Sponsor and obtaining its prior
consent, which consent shall not be unreasonably withheld. The foregoing license
shall terminate upon the effective date of the expiration or termination of this
Agreement.
4.1.2 Subject to the terms and conditions hereof, ▇▇▇▇▇▇.▇▇▇
hereby represents that it has the power and authority to grant, and does hereby
grant to Sponsor a non-exclusive, non-transferable, royalty-free, worldwide
license to reproduce and display all logos, trademarks, trade names and similar
identifying material relating to ▇▇▇▇▇▇.▇▇▇ and, solely as allowed pursuant to
this Agreement, to the Dr. C. ▇▇▇▇▇▇▇ ▇▇▇▇ name (collectively, the "▇▇▇▇▇▇.▇▇▇
Marks") solely in connection with the promotion, marketing and distribution of
the parties and the Sites in accordance with the terms hereof, provided,
however, that Sponsor shall, other than as specifically provided for in Section
4.4 of this Agreement, not make any specific use of any ▇▇▇▇▇▇.▇▇▇ Marks without
first submitting a sample of such use to ▇▇▇▇▇▇.▇▇▇ and obtaining its prior
consent, which consent shall not be unreasonably withheld. The foregoing license
shall terrifinate upon the effective date of the expiration or termination of
this Agreement.
IV.2. INTELLECTUAL PROPERTY OWNERSHIP. Each party shall retain all
right, title, and interest (including all copyrights, patents, service marks,
trademarks and other intellectual property rights) in its Site. Except for the
license granted pursuant to this Agreement, neither party shall acquire any
interest in the other party's Site or any other services or materials, or any
copies or portions thereof, provided by such party pursuant to this Agreement.
IV.3. REMOVAL OF MATERIALS. Each party reserves the right to reject or
remove any content, information, data, logos, trademarks and other materials
(collectively, "Materials") provided by the other from its servers at any time
if, in its reasonable opinion, it believes that any such Materials infringe any
third-party intellectual property right, are libelous or invade the privacy or
violate other rights of any person, violate applicable laws or regulations, or
jeopardize the health or safety of any person. Each party will use reasonable
efforts to contact the other prior to removing any of its Materials from its
servers and will work with the other to resolve the issue as quickly as
possible.
IV.4. USE OF NAME AND LIKENESS. Sponsor shall not have any right to use
the name and/or likeness of Dr. C. ▇▇▇▇▇▇▇ ▇▇▇▇ or to make any statements,
whether written or oral, which state or otherwise imply, directly or indirectly,
any endorsement from or affiliation with Dr. C. ▇▇▇▇▇▇▇ ▇▇▇▇ in any manner
whatsoever without the prior written consent of ▇▇▇▇▇▇.▇▇▇, which consent may be
withheld in ▇▇▇▇▇▇.▇▇▇'s sole discretion. Notwithstanding the foregoing, Sponsor
is hereby authorized during the Tenn to use the logo and tag lines set forth on
EXHIBIT D, on its Site, in its catalogs and in its stores in connection with its
marketing and promotion efforts, in each case in accordance with the terms of
this Agreement and subject to the reasonable
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approval of ▇▇▇▇▇▇.▇▇▇. Sponsor is hereby authorized to place such logo and any
one of such tag lines on its Site, in its stores and in its catalogs in
accordance with the terms of this Agreement.
ARTICLE V.
CONFIDENTIALITY
V.1. CONFIDENTIALITY. For the purposes of this Agreement, "Confidential
Information" means non-public information about the disclosing party's business
or activities that is proprietary and confidential, which shall include, without
limitation, all business, financial, technical and other information of a party
marked or designated "confidential" or by its nature or the circumstances
surrounding its disclosure should reasonably be regarded as confidential.
Confidential Information includes not only written or other tangible
information, but also information transferred orally, visually, electronically
or by any other means. Confidential Information will not include information
that (i) is in or enters the public domain without breach of this Agreement,
(ii) the receiving party lawfully receives from a third party without
restriction on disclosure and without breach of a nondisclosure obligation or
(iii) the receiving party knew prior to receiving such information from the
disclosing party or develops independently.
V.2. EXCLUSIONS. Each party agrees (i) that it will not disclose to any
third party or use any Confidential Information disclosed to it by the other
except as expressly permitted in this Agreement and (ii) that it will take all
reasonable measures to maintain the confidentiality of all Confidential
Information of the other 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.
V.3. EXCEPTIONS. Notwithstanding the foregoing, each party may disclose
Confidential Information (i) to the extent required by a court of competent
jurisdiction or other governmental authority or otherwise as required by law,
provided, however, that with respect to filing obligations under the securities
laws, each party will, to the extent that it is required to file this Agreement,
file this Agreement in redacted form reasonably approved by the other party
prior to such filing or (ii) on a "need-to-know" basis under an obligation of
confidentiality to its legal counsel, accountants, banks and other financing
sources and their advisors. Except as set forth in this Section 5.3, the terms
and conditions of the Agreement will be deemed to be the Confidential
Information of each party and will not be disclosed without the prior written
consent of the other party.
V.4. SPONSOR ADVERTISING CONTENT. ▇▇▇▇▇▇.▇▇▇ hereby confirms and agrees
that during the Term Sponsor shall be able to serve up its own advertising using
NetGravity software and tags, and that ▇▇▇▇▇▇.▇▇▇ shall not do anything which
would interfere or hamper such serving. Notwithstanding anything in this
Agreement, all information regarding Sponsor Advertising Content (including
Sponsor banner advertisements and e-commerce tiles), including all users viewing
and clicking information with respect thereto, shall be deemed to be
Confidential Information of Sponsor (collectively, "Sponsor Confidential
Advertising Information"). To the extent that in connection with ▇▇▇▇▇▇.▇▇▇'s
advertising efforts, or
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otherwise, any third party may or will receive any Sponsor Confidential
Advertising Information from or through ▇▇▇▇▇▇.▇▇▇, ▇▇▇▇▇▇.▇▇▇ agrees that prior
to such third party receiving any such infomiation ▇▇▇▇▇▇.▇▇▇ will enter into an
agreement with such third party pursuant to which such third party will agree to
keep any such Sponsor Confidential Advertising Information received by such
third party confidential to the same extent as ▇▇▇▇▇▇.▇▇▇ is required to keep
such information confidential under the Agreement. To the extent that any third
party breaches any such agreement of confidentiality with ▇▇▇▇▇▇.▇▇▇, ▇▇▇▇▇▇.▇▇▇
hereby agrees to enforce its rights and pursue its remedies under such agreement
to the fullest extent permitted by law, including seeking equitable relief, and,
to the extent ▇▇▇▇▇▇.▇▇▇ would not have otherwise sought to enforce such rights
or pursue such remedies, Sponsor shall reimburse ▇▇▇▇▇▇.▇▇▇ for the reasonable
legal costs associated therewith which reimbursement shall be offset to the
extent ▇▇▇▇▇▇.▇▇▇ receives any monetary damages in connection therewith.
ARTICLE VI.
REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION
VI.1. SPONSOR WARRANTY. Sponsor represents and warrants for the benefit
of ▇▇▇▇▇▇.▇▇▇ that the Sponsor Advertising Content and Sponsor Marks are true
and correct and do not and will not for the Term infringe upon or violate: (i)
any intellectual property rights, including any copyright or trademark rights,
of any third party and do not and will not constitute a defamation or invasion
of the rights of privacy or publicity of any kind of any third party, (ii) any
applicable law, regulation or non-proprietary third-party right. Sponsor further
represents and warrants for the benefit of ▇▇▇▇▇▇.▇▇▇ that the Sponsor
Advertising Content does not contain any material which is unlawful, harmful,
abusive, hateful, obscene, threatening or defamatory and Sponsor is not an
entity or an affiliate of any entity which engages in the manufacture or
wholesale distribution of tobacco or tobacco products (such activities are
collectively referred to herein as "Tobacco Industry Affiliation").
VI.2. ▇▇▇▇▇▇.▇▇▇ WARRANTY. ▇▇▇▇▇▇.▇▇▇ represents and warrants for the
benefit of Sponsor that the ▇▇▇▇▇▇.▇▇▇ Marks are true and correct and do not and
will not for the Term infringe upon or violate: (i) any intellectual property
rights, including any copyright or trademark rights, of any third party and do
not and will not constitute a defamation or invasion of the rights of privacy or
publicity of any kind of any third party, (ii) any applicable law, regulation or
non-proprietary third-party right. ▇▇▇▇▇▇.▇▇▇ further represents and warrants
for the benefit of Sponsor that the ▇▇▇▇▇▇.▇▇▇ Marks do not contain any material
which is unlawful, harmful, abusive, hateful, obscene, threatening or
defamatory, and ▇▇▇▇▇▇.▇▇▇ has the right to license the ▇▇▇▇▇▇.▇▇▇ Marks,
including the Dr. C. ▇▇▇▇▇▇▇ ▇▇▇▇ name (to the extent licensed under this
Agreement), in accordance with the terms of this Agreement.
VI.3. INDEMNIFICATION. Each party hereby agrees to indemnify and hold
harmless the other party and its subsidiaries and affiliates, and their
respective directors, officers, employees, agents, shareholders, partners,
members and other owners, against any and all claims, actions, demands,
liabilities, losses, damages, judgments, settlements, costs and expenses
(including reasonable attorneys' fees) (any or all of the foregoing hereinafter
referred to as "Losses") insofar
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as such Losses (or actions in respect thereof) arise out of or are based on (i)
the breach of any representation or warranty set forth in Articles 4, 5 or 6,
(ii) any breach by it of the licenses granted by it hereunder; (iii) the use by
it of any trademarks or Content other than in accordance with the terms hereof;
(iv) any and all product liability claims arising from this Agreement; and (v)
the development, operation, maintenance and Content (as defined below) of its
Site. For purposes herein, "Content" shall mean, with respect to each party, the
proprietary content delivered by such party to the other party pursuant to this
Agreement, including, Sponsor Advertising Content, but only to the extent that
such content is not altered by the receiving party, and the proprietary content
contained on such party's Site, and shall include only that content created by
such party, its employees or other persons contractually bound to such party to
create such content. The foregoing obligations are contingent upon the
indemnified party: (i) promptly notifying the indemnifying party of any claim,
suit, or proceeding for which indemnity is claimed; (ii) cooperating reasonably
with the indemnifying party at the latter's expense; and (iii) allowing the
indemnifying party to control the defense or settlement thereof. The indemnified
party will have the right to participate in any defense of a claim and/or to be
represented by counsel of its own choosing at its own expense.
ARTICLE VII.
LIMITATION OF LIABILITY
VII.1. WARRANTY. ▇▇▇▇▇▇.▇▇▇ will use commercially reasonable efforts to
maintain the ▇▇▇▇▇▇.▇▇▇ Website available and display the Sponsor Advertising
Content twenty four hours per day each day during the term of the Agreement.
▇▇▇▇▇▇.▇▇▇ shall install and maintain a commercially acceptable system of
collecting information about impressions and other data relating to the use of
the Sponsor Advertising Content. ▇▇▇▇▇▇.▇▇▇ warrants to Sponsor that it will
make reasonable effort to perform under this agreement in a competent manner. If
despite ▇▇▇▇▇▇.▇▇▇'s efforts, for any 24 hour period a majority of the Sponsor
promotions or placements, or the links contained therein, are not viewable or
operational (a "Blackout Period"), ▇▇▇▇▇▇.▇▇▇ shall, as its sole remedy
hereunder for such event, provide Sponsor with a cash rebate equal to [*****] of
the total fee to be paid by Sponsor hereunder pursuant to Section 2.5.1 of this
Agreement and the Term shall be extended by an amount of time equal to the
Blackout Period, provide that if a Blackout Period continues for 72 consecutive
hours Sponsor may, at its option, terminate this Agreement without any liability
to Sponsor.
VII.2. DISCLAIMER. Each party will be solely responsible for the
development, operation and maintenance of its Site and for all materials that
appear on its Site. Such responsibilities include, but are not limited to: (i)
the technical operation of its Site and all related equipment; (ii) the accuracy
and appropriateness of materials posted on its Site; (iii) for ensuring that
materials posted on its Site do not violate any law, rule or regulation,
including all FDA requirements, or infringe upon the rights of any third party
(including, for example, copyright, trademarks, privacy or other personal or
proprietary rights); and (iv) for ensuring that materials posted on its Site are
not libelous or otherwise illegal. Each party disclaims all liability for all
such matters with respect to the other party's Site. Except for the foregoing,
or as otherwise specifically set forth in this Agreement, neither party makes
any representations, warranties or
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guarantees of any kind, either express or implied (including, without
limitation, any warranties of merchantability or fitness for a particular
purpose), with respect to their respective Sites, or the functionality,
performance or results of use thereof, or otherwise in connection with this
Agreement.
VII.3. EXCLUSION OF WARRANTY. EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT, NEITHER PARTY MAKES ANY WARRANTY TO THE OTHER PARTY IN CONNECTION
WITH THE SUBJECT MATTER OF THIS AGREEMENT AND EACH PARTY HEREBY DISCLAIMS ANY
AND ALL WARRANTIES WITH REGARD TO ITS SITE AND SERVICES, EXPRESS OR IMPLIED,
INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF NONINFRINGEMENT AND THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN
PARTICULAR, AND NOT BY WAY OF LIMITATION, NEITHER PARTY WARRANTS THAT ITS SITE
WILL OPERATE ERROR-FREE OR WITHOUT INTERRUPTION.
VII.4. DAMAGES. EXCEPT AS SET FORTH IN SECTION 6.3, IN NO EVENT SHALL
EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL
OR PUNITIVE DAMAGES ARISING OUT OF THIS AGREEMENT OR ITS TERMINATION, WHETHER
LIABILITY IS ASSERTED IN CONTRACT, TORT (INCLUDING NEGLIGENCE) STRICT LIABILITY
OR OTHERWISE AND IRRESPECTIVE OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF ANY SUCH LOSS OR DAMAGE. Notwithstanding the foregoing, except as
set forth in Section 6.3, in no event shall either party's cumulative liability
under this Agreement to the other party exceed the amount actually paid by
Sponsor to ▇▇▇▇▇▇.▇▇▇ pursuant to this Agreement.
ARTICLE VIII.
TERM AND TERMINATION
VIII.1. TERM; TERMINATION.
8.1.1. The initial term (the "Initial Term"; and together with
all extensions and renewals, the "Term") will begin on the date set forth above
and expire on the one year anniversary of the date (the "Launch Date") on which:
(i) each of the Sponsor Areas of the ▇▇▇▇▇▇.▇▇▇ Website are operational in
accordance with the terms of this Agreement (other than the e-commerce tile
placements); and (ii) the links to the Sponsor Website or Vitamin Buzz contained
in the Sponsor logos or the Sponsor banner advertisements are established in
accordance with the terms of this Agreement, subject to earlier termination as
set forth in this Agreement. If the Launch Date has not occurred by [******],
Sponsor shall, in its sole discretion, be entitled to terminate this
Agreement without any liability and receive a full refund of all amounts paid by
Sponsor to ▇▇▇▇▇▇.▇▇▇ pursuant to this Agreement prior to the date of such
termination.
8.1.2. On the [******] day prior to the expiration of the
initial Term, ▇▇▇▇▇▇.▇▇▇ shall deliver a written notice to Sponsor to notify
Sponsor of the commencement of the extension
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negotiation period. Between the [*****] and [*****] day prior to the expiration
of the initial Term, ▇▇▇▇▇▇.▇▇▇ and Sponsor shall in good faith negotiate to
extend the term of this Agreement. If by the [*****] day prior to the expiration
of the initial Term, ▇▇▇▇▇▇.▇▇▇ and Sponsor shall have not agreed on mutually
agreeable terms for an extension of the Term of this Agreement, ▇▇▇▇▇▇.▇▇▇ may
commence negotiations with third parties with respect to the sponsorship of the
Sponsor Areas, provided, that prior to entering into any agreement with any
third party regarding the sponsorship of the Sponsor Areas, ▇▇▇▇▇▇.▇▇▇ must
notify Sponsor in writing of the material terms of such third party agreement
("Third Party Terms"), and Sponsor shall have two business days from the receipt
of such notice to notify ▇▇▇▇▇▇.▇▇▇ that Sponsor will accept such Third Party
Terms, in which case ▇▇▇▇▇▇.▇▇▇ and Sponsor shall enter into an agreement for
the extension of the Term on substantially the terms set forth in the Third
Party Terms. If Sponsor does not respond to ▇▇▇▇▇▇.▇▇▇ within such two business
day period, then on or after the next succeeding business day, ▇▇▇▇▇▇.▇▇▇ may
enter into an agreement with such third party substantially upon the terms of
the Third Party Terms.
VIII.2. TERMINATION FOR TOBACCO INDUSTRY AFFILIATION. Upon commencing
any activities relating to Tobacco Industry Affiliation (as defined in Section
6.1), Sponsor shall promptly notify ▇▇▇▇▇▇.▇▇▇ of its intent to undertake
Tobacco Industry Affiliation. Upon receipt of such notice or upon learning of
any such Tobacco Industry Affiliation from a third party, ▇▇▇▇▇▇.▇▇▇ shall have
the right to terminate this Agreement immediately on written notice to Sponsor
without liability of any kind.
VIII.3. TERMINATION FOR GARNISHMENT. Notwithstanding anything else
contained in this Agreement, if, prior to the end of the Term, Dr. C. ▇▇▇▇▇▇▇
▇▇▇▇ shall be involved in any type of immoral, indecent or hypocritical scandal
Sponsor shall have the right to terminate this Agreement immediately upon
written notice to ▇▇▇▇▇▇.▇▇▇, and shall not have any obligation to ▇▇▇▇▇▇.▇▇▇,
whether monetary or otherwise, following the date of such termination.
Additionally, in the event that either party undertakes any action or fails to
undertake any action, which the other party reasonably believes tarnishes the
high quality of its name or trademarks, including, with respect to ▇▇▇▇▇▇.▇▇▇,
the "▇▇. ▇▇▇▇" name, the other party shall have the right to terminate this
agreement upon ten (10) days' written notice to the other party, provided that
such action or inaction is not cured to the reasonable satisfaction of the
terminating party within such ten day period.
VIII.4. TERMINATION FOR CAUSE. Either party may terminate this
Agreement upon thirty (30) days' written notice of a breach by the other party,
provided such breach is not cured within such thirty-day period.
VIII.5. TERMINATION BY INSOLVENCY. Either party may terminate this
Agreement by providing written notice to the other party if the other party
ceases to function as a going concern, becomes insolvent, makes an assignment
for the benefit of creditors, files a petition in bankruptcy, permits a petition
in bankruptcy to be filed against it, or admits in writing its inability to pay
its debts as they mature, or if a receiver is appointed for a substantial part
of its assets.
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VIII.6. SURVIVAL. The following Sections shall survive termination of
this Agreement: Article 5 (Confidentiality), Article 6 (Representations,
Warranties and Indemnification), Article 7 (Limitation of Liability), and
Article 9 (General).
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ARTICLE IX.
GENERAL
IX.1. PUBLICITY. Except as may be required by applicable laws and
regulations or a court of competent jurisdiction, or as required to meet credit
and financing arrangements, or as required or appropriate in the reasonable
judgment of either party to satisfy the disclosure requirements of an applicable
securities law or regulation or any applicable accounting standard, neither
party shall make any public release respecting this Agreement and the terms
hereof without the prior consent of the other party.
IX.2. ARBITRATION. Any and all disputes, controversies and claims
arising out of or relating to this Agreement or concerning the respective fights
or obligations of the parties hereto shall be settled and determined by
arbitration in the defending parties home forum before one (1) arbitrator
pursuant to the Commercial Rules then in effect of the American Arbitration
Association. Each party shall have no longer than three (3) days to present its
position. Judgment upon the award rendered may be entered in any court having
jurisdiction or application may be made to such court for a judicial acceptance
of the award and an order of enforcement. The parties agree that the arbitrators
shall have the power to award damages, injunctive relief and reasonable
attorneys' fees and expenses to any party in such arbitration.
IX.3. ASSIGNMENT. Neither party may assign this Agreement, in whole or
in part, without the other party's written consent, which consent will not be
unreasonably withheld, except that: (a) a party's rights and obligation
hereunder may be transferred to a successor of all or substantially all of the
business and assets of the party regardless of how the transaction or series of
related transactions is structured, provided, that the successor party agrees to
be bound by all of the terms and conditions of this Agreement; and (b) Sponsor
may assign its rights and obligations under this Agreement to any entity (i)
which operates the Sponsor Website and (ii) which agrees to bound by all of the
terms and conditions of this Agreement.
IX.4. GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with the laws of the State of Delaware, but without giving effect to
its laws or rules relating to conflicts of laws.
IX.5. NOTICE. All notices, statements and reports required or permitted
by this Agreement shall be in writing and deemed to have been effectively given
and received: (i) five (5) business days after the date of mailing if sent by
registered or certified U.S. mail, postage prepaid, with return receipt
requested; (ii) when transmitted if sent by facsimile, provided a confirmation
of transmission is produced by the sending machine and a copy of such facsimile
is promptly sent by another means specified in this section; or (iii) when
delivered if delivered personally or sent by express courier service. Notices
shall be addressed as follows:
For ▇▇▇▇▇▇.▇▇▇: For Sponsor:
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▇▇▇▇▇▇.▇▇▇ Vitamin Shoppe Industries, Inc.
Personal Medical Records, Inc. ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Attn: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Attn: Chief Financial Officer Fax: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇ Email: ▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Email: ▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
With a copy to:
H. ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
& ▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
Either party may change its address for the purpose of this paragraph by notice
given pursuant to this paragraph
IX.6. NO AGENCY. The parties are independent contractors and will have
no power or authority to assume or create any obligation or responsibility on
behalf of each other. This Agreement will not be construed to create or imply
any partnership, agency or joint venture.
IX.7. SEVERABILITY. In the event that any of the provisions of this
Agreement are held to be unenforceable by a court or arbitrator, the remaining
portions of the Agreement will remain in full force and effect.
IX.8. ENTIRE AGREEMENT. This Agreement is the complete and exclusive
agreement between the parties with respect to the subject matter hereof,
superseding any prior agreements and communications (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.
IX.9. COUNTERPARTS. This Agreement may be signed in counterparts which,
when signed, shall constitute one document.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
▇▇▇▇▇▇.▇▇▇, inc.
By: /s/ ▇▇▇▇ Longrin
--------------------
Name: ▇▇▇▇ Longrin
Title: Senior VP, Sales
VITAMIN SHOPPE INDUSTRIES, INC.
By: [SIGNATORY]
--------------------
Name:
Title:
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SCHEDULE 1.2(I)
SCREEN SHOT MOCK-UPS
[ATTACHED]
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EXHIBIT A
DIRECT COMPETITORS
[*****]
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EXHIBIT B
FORM OF HEALTHLINKS AGREEMENT
[ATTACHED]
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EXHIBIT C
ADVERTISING SPECIFICATIONS
File Formats
Naming Convention: (lowercase only, 8.3)
Alternate Text: Use ALT tag; ten words or less
Image Dimensions:
Sponsor Banner: 468 pixels by 60 pixels, 234 pixels by 60 pixels, 120 pixels by
60 pixels
Image File Format: [GIF/JPEG]
Image File Size: 12k maximum file size
File Names: Use Sponsor name.: [Sponsor].gif]
Delivery of GIFs
Email -- ▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇.▇▇▇, cc: ▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇.▇▇▇
We accept [,CompactPro, zip, gzip, and UNIX tar or compress] format tiles. All
formats must be mailed in [ASCII encoding(uuencode, mmencode)].
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EXHIBIT D
▇▇▇▇▇▇.▇▇▇ CORPORATE LOGO
[LOGO ATTACHED]
"The Vitamin Shoppe is the proud exclusive vitamin sponsor of ▇▇▇▇▇▇.▇▇▇."
"The Vitamin Shoppe is a proud sponsor of ▇▇▇▇▇▇.▇▇▇, the Trusted health
Network, led by Dr. C. ▇▇▇▇▇▇▇ ▇▇▇▇."
The Vitamin Shoppe is a proud sponsor of ▇▇▇▇▇▇.▇▇▇, the Trusted Health Network,
led by Dr. Ce. ▇▇▇▇▇▇▇ ▇▇▇▇
