CONTENT LICENSE AND CODEVELOPMENT AGREEMENT
This Agreement ("Agreement") is entered into on November 2, 1999 (the
"Effective Date") by and between Xxxxxx.xxx, Inc., a Delaware corporation
("Xxxxxx.xxx") with offices at 0000 Xxxxx Xxxxxx, Xxxxxx, Xxxxx 00000 and
iVillage Inc., a Delaware corporation ("iVillage"), with offices at 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
1. Introduction. Xxxxxx.xxx and iVillage desire to enter into this
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relationship to develop a comprehensive gardening area within the existing U.S.
English language version website located on iVillage's servers at the
xxx.xXxxxxxx.xxx URL (the "iVillage Network"). The parties agree to cooperate to
develop and promote the garden area, to promptly address issues impeding the
smooth operation of this venture and to work in good faith to ensure the success
of this venture.
2. Creation of Gardening Site. Promptly following execution of this
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Agreement, iVillage and Xxxxxx.xxx shall cooperate to develop a garden area on
the iVillage Network (the "Garden Area"). The Garden Area will be a subchannel
of the Home & Garden Channel (or similar name) to be developed by iVillage for
the iVillage Network. Upon commencement of this Agreement, the parties agree to
use commercially reasonable efforts to create and develop the Garden Area (and
iVillage agrees to use commercially reasonable efforts to create and develop the
Home & Garden Channel) with a launch date currently scheduled for [*] (the
"Launch Date"). The failure of the Launch Date to occur on or before [*] shall
be a material breach by iVillage and shall be grounds for immediate termination
by Xxxxxx.xxx. The Garden Area shall be developed by iVillage with Xxxxxx.xxx
as the exclusive sponsor and provider of gardening content, tools and commerce
during the term of this Agreement as outlined in Section 5. Notwithstanding the
foregoing, if at anytime more than 90 days after the Launch Date of the Garden
Area, iVillage reasonably requests in writing additional content and/or tools
for the Garden Area and Xxxxxx.xxx declines to fulfill such request within 30
days, then iVillage may, either individually or through a third party, obtain
the requested content or tools. [*] In connection with the development of the
Garden Area, the parties agree as follows:
(a) The parties will cooperate in developing the style, substance
and feel of the Garden Area. All content and tools provided by Xxxxxx.xxx shall
be consistent in style and format with other areas within the iVillage Network
and otherwise have the "look and feel" of the iVillage Network. Such content
shall reside within the iVillage Network unless mutually agreed upon by both
parties. Notwithstanding the foregoing, iVillage shall have final reasonable
approval over the "look and feel" and content within the Garden Area.
(b) The Garden Area and all content provided by Xxxxxx.xxx shall
be co-branded as "in partnership with Xxxxxx.xxx" or similar language. On the
main Garden Area page a Xxxxxx.xxx logo shall be displayed prominently and in no
event shall it be smaller than 222 x 36 pixels.
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* Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
(c) Xxxxxx.xxx will either provide the Xxxxxx.xxx content
comprising the Garden Area (the "Xxxxxx.xxx Content") in a manner and format
mutually acceptable to the parties or allow iVillage to modify existing
Xxxxxx.xxx Content with approval from Xxxxxx.xxx and/or frame or link to the
Xxxxxx.xxx Content.
(d) The parties will mutually agree upon the search and other
tools incorporated into the Xxxxxx.xxx Content and to this end Xxxxxx.xxx will
either provide the tools and database directly to iVillage such that the tools
can be hosted directly by iVillage or allow iVillage to link to a co-branded
results page or similar page on the Xxxxxx.xxx Web site. The parties will
mutually agree upon the procedure for notifying one another with respect to the
Xxxxxx.xxx Content.
3. Garden Area Community. Within the Garden Area, the parties will
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xxxxxx the development of a gardening community. Xxxxxx.xxx will include links
to chat and message board areas as well as promotion of upcoming Garden Area
community events on the Xxxxxx.xxx site. Xxxxxx.xxx will provide Garden Area
users the ability to chat with an expert gardener at least four times per month
and will make a gardening expert available to provide answers online to
questions from the message board at least four per month (provided that such
experts will not be required to respond to more than 20 questions in any given
question and answer session).
4. Marketing. Throughout the term of this Agreement, subject to
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inventory availability and iVillage's reasonable editorial discretion, iVillage
will provide links, advertisements and other promotional placements and
opportunities to promote Xxxxxx.xxx and its sponsorship of the Garden Area
throughout the iVillage Network (collectively the "Promotional Placements and
Opportunities") in a manner to be agreed upon by the parties. The parties will
cooperate in good faith to develop and implement such Promotional Placements and
Opportunities and to maximize the effectiveness of all such Promotional
Placements and Opportunities. The Promotional Placements and Opportunities as
described herein shall be available on the iVillage Network no later than the
Launch Date and shall include, without limitation, the following promotions:
(a) During the term of this Agreement, iVillage agrees to deliver
a minimum of [*] co-branded, online-impressions per calendar year to promote the
Garden Area which shall be placed throughout the iVillage Network (excluding the
Home and Garden channel) and shall be in the form of permanent placements,
advertising banners, or other mutually agreed upon form.
(b) iVillage shall include a "Buy it at Xxxxxx.xxx" icon or
similar clickable link in the Garden Area that will promote to iVillage users
the ability to consummate a transaction on the Xxxxxx.xxx Web site.
(c) iVillage shall ensure that the iVillage Home Page (currently
located at xxx.xxxxxxxx.xxx) shall contain a permanent link promoting the Home &
Garden Channel which in turn, will have a permanent link promoting the Garden
Area. In the event that iVillage redesigns the iVillage Home Page or other
navigation-related functionality, iVillage represents
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* Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
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that the Home & Garden Channel will be as prominently displayed as the other
channels within the iVillage Network.
(d) The Garden Area and the content and tools within the Garden
Area will be co-branded highlighting iVillage's and Xxxxxx.xxx's sponsorship.
iVillage retains the right to make reasonable modifications to the Xxxxxx.xxx
Content to ensure that it meets iVillage's editorial guidelines, consistently
applied; provided, however, that Xxxxxx.xxx shall have final reasonable approval
over all such changes and provided further that any and all commerce links
contained in the Xxxxxx.xxx Content (linking to product or related areas of the
Xxxxxx.xxx website) shall remain in place.
(e) Each of iVillage and Xxxxxx.xxx shall provide the other with
[*] mutually agreed upon promotional inserts advertising their respective
properties (the "Inserts"). The Inserts shall be placed, in the case of
Xxxxxx.xxx in products shipped by Xxxxxx.xxx to Xxxxxx.xxx customers and, in the
case of iVillage, in products shipped by iVillage to customers of iMaternity and
iBaby.
(f) During the term of this Agreement, Xxxxxx.xxx shall provide
iVillage with full page advertising in each issue of the Garden Escape Magazine.
(g) Each of iVillage and Xxxxxx.xxx shall provide the other with
mutually agreed upon advertising or promotional copy which shall be placed, in
the case of Xxxxxx.xxx, in Xxxxxx.xxx e-mail newsletters and, in the case of
iVillage, in iVillage Home and Garden e-mail newsletters. Quantity and
frequency of e-mail newsletters by each party shall be mutually agreed upon.
All e-mail advertising must meet the guidelines of the respective parties with
the intent of promoting both parties offerings to an equal number of e-mail
newsletter subscribers.
(h) In the Garden Area, iVillage will provide a permanent
opportunity for iVillage users to register for a Xxxxxx.xxx monthly e-mail
gardening newsletter.
(i) Each of Xxxxxx.xxx and iVillage shall provide a dedicated
contact to manage the relationship contemplated by this Agreement and facilitate
the consummation of its terms.
(j) The parties will cooperate in good faith to pursue mutually
beneficial sponsorship, co-marketing and promotional opportunities, including
advertising and sponsorship placements for iVillage on the Xxxxxx.xxx site.
5. Exclusivity. [*]
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* Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
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6. Payments.
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(a) Sponsorship Payments.
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(i) Subject to the terms of this Agreement, Xxxxxx.xxx agrees
to pay to iVillage a total amount of [*], payable as follows:
[a] [*] upon execution of this Agreement;
[b] [*] on the actual Launch Date of the Garden Area
provided such Launch Date occurs prior to March 15, 2000 and [*] on each of
April 1, 2000, July 1, 2000 and October 1, 2000;
[c] [*] on each of January 1, 2001, April 1, 2001, July
1, 2001 and October 1, 2001; and
[d] [*] on each of January 1, 2002 and April 1, 2002.
(ii) iVillage agrees to send Xxxxxx.xxx an invoice for the
above-mentioned payments at least thirty days prior to the payment date. To the
extent any of the above-mentioned fees owing to iVillage are outstanding and due
to iVillage, this Section 6 shall survive expiration or termination of this
Agreement until such fee has been paid to iVillage.
(iii) All payments made via wire transfer should be directed
as follows: Chase Manhattan Bank, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000;
Account name: iVillage Inc.; ABA#: 000000000; Account #: 020-923406;
Reference: Xxxxxx.xxx. All payments made via check, should be sent to: iVillage
Inc., 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; Attention: Accounts
Receivable.
(b) iVillage Revenue Share. Xxxxxx.xxx shall pay to iVillage on a
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quarterly basis payable within thirty (30) days after the end of each quarter, a
fee equal to [*] of the gross revenues received by Xxxxxx.xxx in the immediately
preceding quarter from transactions completed through the iVillage Garden Area
(less shipping, handling, wrapping fees, taxes and similar charges). Such
revenue share shall be paid to iVillage in the form of advertising impressions
to be run throughout the Xxxxxx.xxx Web Site at a CPM of [*].
(c) Xxxxxx.xxx Revenue Share. iVillage shall pay to Xxxxxx.xxx on
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a quarterly basis payable within thirty (30) days after the end of each quarter,
a fee equal to [*] of net advertising and sponsorship revenues (defined as net
of any applicable agency commissions) received by iVillage in the immediately
preceding quarter which were generated from advertising and sponsorship sales
attributable to the Garden Area. Such revenue share shall be
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* Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
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paid to Xxxxxx.xxx in the form of advertising impressions to be run throughout
the iVillage Network at a CPM of [*].
7. Term and Termination.
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(a) The term of this Agreement shall commence on the Effective
Date and shall extend through June 30, 2002, unless terminated earlier as set
forth herein; provided however, that either party may at its option terminate
this Agreement on the first anniversary of the Launch Date by providing 30 days'
prior written notice to the other party of such termination.
(b) In the event of a material breach by either party of any term
of this Agreement, the non-breaching party may terminate this Agreement by
written notice to the breaching party if the breaching party fails to cure, or
fails to initiate a good faith cure, of such material breach within 30 days of
receipt of written notice thereof. In addition, either party may terminate this
Agreement effective upon written notice stating its intention to terminate in
the event the other party (i) ceases to function as a going concern or to
conduct operations in the normal course of business, or (ii) has a petition
filed by or against it under any state or federal bankruptcy or insolvency law
which petition has not been dismissed or set aside within 90 days of its filing,
(c) Except for termination of this Agreement by iVillage for
material breach of the Agreement by Xxxxxx.xxx, upon any early termination of
this Agreement, in addition to any other remedies available to the parties as a
result of such termination (if any), iVillage agrees (i) that no further
payments shall be due from Xxxxxx.xxx under Section 6(a) above unless due and
payable prior to the date of any such early termination, (ii) to refund to
Xxxxxx.xxx a pro-rata portion of the last quarterly fee paid under Section 6(a)
above in an amount equal to the product of the amount of the last quarterly fee
paid multiplied by a fraction, the numerator of which is the number of days
until the end of the next quarter and the denominator of which is 90; and (iii)
Xxxxxx.xxx has the right to terminate with five (5) business days notice, the
Online Merchant Agreement with iVillage dated October 15, 1999 and receive a
refund as if such agreement were terminated pursuant to Section 2.A.(v) of such
agreement.
8. Ownership. All intellectual or proprietary property and
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information, supplied or developed by either party shall be and remain the sole
and exclusive property of the party who supplied or developed same. Upon
termination of this Agreement and upon written request, the party in receipt of
the requesting party's intellectual or proprietary property and/or information
pursuant to this Agreement shall return such information to the requesting
party.
9. Grant of Rights, Restrictions.
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(a) Rights. Subject to the limitations and restrictions set forth
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herein, Xxxxxx.xxx grants to iVillage, during the term of this Agreement, a
limited, non-transferable nonsublicensable, nonexclusive, right and license:
(i) to frame, link to, incorporate, reproduce, adapt, copy,
transmit, use, distribute, publicly perform, and/or display the Xxxxxx.xxx
Content and Xxxxxx.xxx tools but
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* Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
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only in connection with the advertising, promotion, creation, maintenance and
development of the Garden Area and Xxxxxx.xxx's sponsorship of the Garden Area;
and
(ii) to use Xxxxxx.xxx's trademarks, service marks, logos,
copyrights, and other intellectual property (the "Xxxxxx.xxx Marks") solely
pursuant to this Agreement and in association with and reference to the Garden
Area, Xxxxxx.xxx Content and Xxxxxx.xxx tools (the Xxxxxx.xxx Marks, the
Xxxxxx.xxx Content and Xxxxxx.xxx tools collectively the "Xxxxxx.xxx Material").
Notwithstanding anything else stated above, "End Users" (as defined
below) have the right to use the Xxxxxx.xxx Material as specified in the then
current version of the Xxxxxx.xxx Web site user terms with respect to use of
content on the site. Xxxxxx.xxx agrees that any later version of terms will not
be materially less restrictive than the current version. "End Users" means
those persons who access and use the Garden Area.
(b) General Restrictions.
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(i) Except as permitted pursuant to this Agreement, iVillage
may only make archival files of Xxxxxx.xxx Material for internal purposes and
specifically not for commercial exploitation; for the avoidance of doubt, unless
required by law, iVillage shall not use any Xxxxxx.xxx Material or make any
archival files kept of the Xxxxxx.xxx Material available to the public after the
termination of this Agreement.
(ii) iVillage specifically agrees that it will not engage in
promotion of Xxxxxx.xxx Material through unsolicited bulk email (SPAM). The
grant of the licenses to Xxxxxx.xxx does not include the right to include the
Xxxxxx.xxx Material in any email message, unless set forth in this Agreement or
otherwise mutually agreed to by the parties.
(iii) With respect to any third party materials included in
the Xxxxxx.xxx Materials, iVillage's rights shall be subject to Xxxxxx.xxx's
agreements with the relevant third party, and iVillage agrees to comply with any
such terms that have been disclosed to iVillage.
(c) Restrictions on use of Xxxxxx.xxx Marks. Xxxxxx.xxx Marks
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shall be used by iVillage solely in association with and reference to the
Xxxxxx.xxx Content and the Xxxxxx.xxx tools, and subject to Xxxxxx.xxx's
reasonable trademark quality control guidelines, as they exist from time to
time. All use of the Xxxxxx.xxx Marks shall inure the benefit of iVillage.
(d) Restrictions on Adaptation. Xxxxxx.xxx Content and Xxxxxx.xxx
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tools may be adapted (without any material change of substance) without
Xxxxxx.xxx's consent only to the extent necessary in iVillage's reasonable
editorial discretion or to reformat same for display on the iVillage Network in
a manner consistent with its style, format, look and feel, so long as iVillage
complies with Xxxxxx.xxx's reasonable trademark quality control guidelines.
Xxxxxx.xxx Content and Xxxxxx.xxx tools may also be adapted substantively,
subject to Xxxxxx.xxx's prior reasonable approval. Xxxxxx.xxx agrees that it
will provide its reasonable
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approval or reasonable disapproval to iVillage within two (2) business days, if
no approval or disapproval has been made within such two (2) business day time
frame, then the adaptation will be deemed approved. To the extent that iVillage
adapts any Xxxxxx.xxx Material, iVillage agrees that Xxxxxx.xxx shall own all
right, title and interest in the adapted Xxxxxx.xxx Material ("Derivative
Product"). iVillage agrees that it will assist Xxxxxx.xxx, at Xxxxxx.xxx's
expense, to further evidence, record and perfect such assignments. iVillage
shall deliver any relevant source code relating to such Derivative Product to
Xxxxxx.xxx promptly after such Derivative Product is created. Upon the
expiration or termination of this Agreement, iVillage agrees to return to
Xxxxxx.xxx all copies of the relevant source code for any such Derivative
Product, and shall cease all use of any such Derivative Product.
(e) Restrictions on use of iVillage Content. Notwithstanding
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anything else herein, if at any time iVillage displays, links to, or uses the
Xxxxxx.xxx Material on the iVillage Network in a manner that is inappropriate as
reasonably and in good faith determined by Xxxxxx.xxx, then Xxxxxx.xxx shall
provide iVillage with notice of such inappropriate use or display and iVillage
shall have a mutually agreed upon period in which to comply with Xxxxxx.xxx's
reasonable request for change in the use or display of such material.
(f) Ownership; Proprietary Notices. Except as set forth herein,
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no right, title, license, or interest in any Xxxxxx.xxx Material is intended to
be given to or acquired by iVillage by the execution of or the performance of
this Agreement. iVillage shall not use the Xxxxxx.xxx Material for any purpose
or activity except as expressly authorized herein. iVillage acknowledges that
as between the Parties, Xxxxxx.xxx is the sole and exclusive owner of all
trademarks, service marks, copyrights and other intellectual property of any
kind in the Xxxxxx.xxx Material. iVillage agrees that (a) it shall do nothing
inconsistent with such ownership either during the term of the Agreement or
afterwards; and (b) it shall take no action that shall interfere with or
diminish Xxxxxx.xxx's right in the Xxxxxx.xxx Material.
10. Publicity. If so desired, the parties agree to cooperate to
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publish a mutually agreed upon press release. The press release and any quotes
from each party's sources must be approved by the public relations department of
the other party (unless otherwise required to be disclosed to a government or
administrative agency), which also must be made aware of any pre-briefings with
outside parties in advance of any pre-briefing. Notwithstanding the foregoing,
this section shall not restrict either party from complying with any
governmental or administrative order or requirement.
11. Customer Service, Processing and Fulfillment. Xxxxxx.xxx shall be
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solely responsible for the Xxxxxx.xxx Web Site including customer service for
users linking to the Xxxxxx.xxx Web Site through the iVillage Network, product
support, quality and availability of Xxxxxx.xxx products, fulfillment of orders
and returns. Xxxxxx.xxx shall ensure that all users of the Xxxxxx.xxx Web Site
placing an order for Xxxxxx.xxx products are timely advised of the status of
such purchase(s) including the timely confirmation of all orders. Xxxxxx.xxx
shall be solely responsible for (a) fulfilling all orders for its Xxxxxx.xxx
products and (b) calculating, collecting and paying all appropriate taxes
associated with payment processing. The Xxxxxx.xxx products offered via the
iVillage Network will be supported by the same warranty and return policy for
the Xxxxxx.xxx products as offered through other Xxxxxx.xxx channels.
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12. Reporting. Xxxxxx.xxx shall track sales of the Xxxxxx.xxx products
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from the iVillage Network and shall provide iVillage with monthly reports
showing the number of visits and visitors, the total numbers of orders and the
total dollar amount of such orders, no later than fifteen (15) days following
the end of each month of the term of this Agreement. iVillage shall track
traffic on the Garden Area and shall provide Xxxxxx.xxx with monthly reports
showing the total number of impressions on the Garden Area and the amount of
advertising revenue generated in such period, no later than fifteen (15) days
following the end of each month of the term of this Agreement.
13. Submissions, Modifications, Corrections. During the term of this
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Agreement, the parties agree that submissions of content, artwork, copy, data,
etc. (the "Submissions") will take place in a timely manner and that approval by
one party to the other, or mutual approval, for the Submissions will not be
unreasonably withheld (deadlines to be mutually agreed upon by the parties). If
Submissions are not received by the deadline date, the other party will have the
option to publish any material it deems appropriate as a substitute until the
substitute material in question, can be reasonably replaced by the Submission.
If a party does not approval or disapprove of a Submission by the deadline date,
approval will be deemed granted by the receiving party. In the event no
response is provided within such time period, then the party seeking the
approval may assume approval has been granted. All approval requests must be
made in writing, with an e-mail copy sent, in the case of iVillage, to
_______.xxxxxxxx.xxx and, in the case of Xxxxxx.xxx, to xxx.xxxxxxxx@xxxxxx.xxx.
14. Representations, Warranties, Covenants and Indemnification.
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(a) iVillage represents, warrants and covenants that: (i) it is
authorized to do business under the rules of the state in which it is
incorporated; (ii) it is authorized to enter into this Agreement and to perform
its obligations; (iii) it has all required permits, licenses, and other
governmental authorizations and approvals necessary to perform its obligations
hereunder; (iv) it shall comply with all local, state, federal, and
international laws and regulations in performing its obligations hereunder; and
(v) the services to be performed and the materials provided by it (a) do not
infringe or violate any third party patent, copyright, trade secret, trademark,
or other proprietary right, (b) do not violate any applicable law, statute,
ordinance or regulation; (c) are not knowingly defamatory or libelous; (d) are
not lewd, pornographic or obscene; (e) do not knowingly violate any laws
regarding unfair competition, anti-discrimination or false advertising; (f) do
not promote violence or contain hate speech; or (g) do not knowingly contain
viruses, Trojan horses, worms, time bombs, cancelbots or other similar harmful
or deleterious programming routines, or (h) are and will remain capable of
correctly performing all functions, calculations, comparisons, sequencing,
displays and other processing of calendar dates and date related data, before,
during and after the year 2000, without error or degradation of performance;
(b) Xxxxxx.xxx represents, warrants and covenants that: (i) it is
authorized to do business under the rules of the state in which it is
incorporated; (ii) it is authorized to enter into this Agreement and to perform
its obligations; (iii) it has all required permits, licenses, and other
governmental authorizations and approvals necessary to perform its obligations
hereunder; (iv) it shall comply with all local, state, federal, and
international laws and regulations in
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performing its obligations hereunder; and (v) the services to be performed and
the materials provided by it (a) do not infringe or violate any third party
patent, copyright, trade secret, trademark, or other proprietary right; (b) do
not violate any applicable law, statute, ordinance or regulation; (c) are not
knowingly defamatory or libelous; (d) are not lewd, pomographic or obscene; (e)
do not knowingly violate any laws regarding unfair competition,
anti-discrimination or false advertising; (f) do not promote violence or contain
hate speech; (g) do not knowingly contain viruses, Trojan horses, worms, time
bombs, cancelbots or other similar harmful or deleterious programming routines
or (h) are and will remain capable of correctly performing all functions,
calculations, comparisons, sequencing, displays and other processing of calendar
dates and date related data, before, during and after the year 2000, without
error or degradation of performance;
(c) As the sole and exclusive remedy for any breach of the
representation, warranty and covenant described in section 14(a) above, iVillage
agrees to defend and hold harmless Xxxxxx.xxx and its parent, subsidiaries,
affiliates, successors and assigns against any awarded damages and/or
settlements costs, losses, and awarded legal fees, incurred in connection with a
third party claim against Xxxxxx.xxx arising out of a breach of section 14(a)
above by iVillage, provided, however, that in any such case: (i) Xxxxxx.xxx
provides iVillage with prompt notice of any such claim; (ii) Xxxxxx.xxx permits
iVillage to assume sole control over the defense and settlement of such action;
and (iii) upon iVillage's written request, and at iVillage's expense, Xxxxxx.xxx
will provide to iVillage reasonable information and assistance necessary for
iVillage to defend and settle such claim. Xxxxxx.xxx may participate in such
defense or settlement at its sole expense.
(d) As the sole and exclusive remedy for any breach of the
representation, warranty and covenant described in section 14(b) above,
Xxxxxx.xxx agrees to defend and hold harmless iVillage and its parent,
subsidiaries, affiliates, successors and assigns against any awarded damages
and/or settlements costs, losses, and awarded legal fees, incurred in connection
with a third party claim against iVillage arising out of a breach of section
14(b) by Xxxxxx.xxx, provided, however, that in any such case: (i) iVillage
provides Xxxxxx.xxx with prompt notice of any such claim; (ii) iVillage permits
Xxxxxx.xxx to assume sole control over the defense and settlement of such
action; and (iii) upon Xxxxxx.xxx 's written request, and at Xxxxxx.xxx 's
expense, iVillage will provide to Xxxxxx.xxx reasonable information and
assistance necessary for Xxxxxx.xxx to defend and settle such claim. iVillage
may participate in such defense or settlement at its sole expense. In addition,
Xxxxxx.xxx shall indemnify and hold harmless iVillage and its parent,
subsidiaries, affiliates, successors and assigns from any and all losses,
liabilities, damages, actions, claims, expenses and costs (including reasonable
attorneys fees) relating to or arising out of the use or purchase of any
Xxxxxx.xxx product or service.
15. Confidentiality. Other than as required or appropriate for
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securities laws disclosure, iVillage and Xxxxxx.xxx agree to keep in confidence,
not use or disclose any Confidential Information, except as authorized by the
disclosing party. Confidential Information means any material nonpublic
information, communication or data, in any form, of the other party. All
Confidential Information of a party shall remain the sole property of the such
party and its confidentiality shall be maintained and protected by the other
party with at least the same degree of care as the receiving party uses for the
protection of its own confidential and
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proprietary information. Neither party shall disclose the other party's
Confidential Information to any third party. These restrictions shall not apply
to any Confidential Information: (v) after it has become generally available to
the public without breach of this Agreement by the receiving party; (w) is
rightfully in the receiving party's possession before disclosure to it by the
disclosing party; (x) is independently developed by the receiving party; (y) is
rightfully received by the receiving party from a third party without a duty of
confidentiality; or (z) is required to be disclosed under operation of law or
administrative process. Upon expiration or termination of this Agreement for
any reason, Xxxxxx.xxx will promptly destroy or at such other party's request
return to the other party, and will not take or use, all items of any nature
which belong to such other party and all records (in any form, format or medium)
containing or relating to Confidential Information including all content.
16. Limitation of Liability. EXCEPT FOR A BREACH OF SECTION 15 ABOVE
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("CONFIDENTIALITY"), NEITHER PARTY SHALL HAVE ANY LIABILITY FOR ANY INDIRECT,
SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, LOSS
OF PROFIT OR BUSINESS OPPORTUNITIES, WHETHER OR NOT THE PARTY WAS ADVISED OF THE
POSSIBILITY OF SUCH.
17. Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, NEITHER
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PARTY MAKES ANY, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS ANY
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SERVICES
CONTEMPLATED BY THIS AGREEMENT, INCLUDING ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES
ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
18. Miscellaneous Provisions. Nothing in this Agreement shall imply
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any partnership, joint venture or agency relationship between the parties and
neither party shall have the power to obligate or bind the other except for what
is stated in this Agreement. Except as otherwise expressly provided in this
Agreement, neither party shall be liable for any breach of this Agreement for
any delay or failure of performance resulting from any cause beyond such party's
reasonable control, such as: weather, strikes or labor disputes, war, terrorist
acts, riots or civil disturbances, government regulations, acts of civil or
military authorities, or acts of God provided the party affected takes all
reasonably necessary steps to resume full performance. This Agreement
constitutes the binding agreement between the parties, represents the entire
agreement between the parties and supersedes all prior agreements relating to
what is stated in this Agreement and any changes to this Agreement must be in
writing and signed by both parties. This Agreement shall be governed by the
laws of the State of New York without regard to the conflicts of laws principles
thereof. Neither party shall sell, transfer or assign this Agreement or the
rights or obligation hereunder, without the prior written consent of the other
party, except to an entity that obtains all or substantially all of the business
or assets of such party. The provisions of this Sections 6(a)(ii), 8, 14, 15,
16, 17 and 18 shall survive the expiration or termination of this Agreement.
Any notices required or permitted to be given under this Agreement shall be in
writing and shall be delivered to the address set forth below or to such address
as provided for by such party.
10
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first above written.
Xxxxxx.xxx, Inc. iVillage Inc.
By: /s/ Xxx X'Xxxxxxx By: /s/ Xxxxxx X. Xxxxx
------------------- ----------------------
Name: Xxx X'Xxxxxxx Name: Xxxxxx X. Xxxxx
Title: Director Online Marketing Title: Senior Vice President
11
EXHIBIT A
[*]
* The confidential information on this exhibit has been omitted and filed
separately with the Securities and Exchange Commission.
