EXHIBIT 10.22
BABY REGISTRY
JOINT DEVELOPMENT AND USE AGREEMENT
This BABY REGISTRY JOINT DEVELOPMENT AND USE AGREEMENT (this "Agreement") is
dated as of April 12, 2001, by and among The Right Start, Inc., a California
corporation (the "TRS") and ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc., a Delaware corporation ("RSC").
RECITALS
1. TRS is engaged in the retail sale of infants' and children's products
through stores located throughout the United States (the "TRS Offline Sales").
2. RSC is engaged in the online sale of infants' and children's products
at its website at ▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇ and through its catalog operations (the
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"RSC Online and Catalog Sales").
3. TRS and RSC have entered into that certain Intellectual Property
Agreement dated as of July 9, 1999 (the "Intellectual Property Agreement")
pursuant to which the parties' respective rights to the use of certain
intellectual property is defined.
4. TRS believes a gift registry would assist TRS with the TRS Offline
Sales and RSC believes a gift registry would assist RSC with the RSC Online and
Catalog Sales.
5. TRS believes a gift registry accessible to its customers from each of
its retail store locations and online would provide desirable service to its
customers.
6. RSC believes a gift registry that included registration information of
TRS' customers would provide desirable service to RSC's customers.
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In consideration of the mutual promises and agreements contained in this
Agreement and for other good and valuable consideration, the receipt and
sufficiency of which the parties acknowledge, the parties agree as follows:
1. Development and Use.
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(A) TRS and RSC agree to work jointly to develop and deploy an integrated
baby registry (the "Integrated Registry") that will permit customers
of TRS and RSC to access registry information from any TRS retail
store and online. Each of TRS and RSC shall develop any portion of the
Integrated Registry that does not rely on the other's portion
independently and they shall develop the integrated portions jointly
with equal contributions. If the parties determine that it is most
efficient, the Integrated Registry can reside wholly online. Neither
party shall be required to make any payment to the other for
development, deployment, maintenance or operation of the Integrated
Registry except to the extent that personnel or services are provided
by the other.
(B) The Integrated Registry shall include a database portion (the
"Database") that shall reside at a mutually agreed location online and
be accessible both to TRS customers in TRS' retail stores and to RSC's
customers through RSC's website located at ▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇. The
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Database shall be owned equally by both companies and both companies
shall have the right to use the information therein; provided,
however, that a party's ownership interest in the Database shall end
to the extent that such party's use of the Database is "substantially
harmful" to the other. Whether a use is "substantially harmful" shall
be determined in the manner set forth in Section 5.01 of the
Intellectual Property Agreement
(C) Each of TRS and RSC agrees to keep the Database reasonably updated and
current with information about participants in its registry and will
cause such updating to occur automatically or by instructing its
employees to add any updated information that is not automatically
added not later than 48 hours after its receipt.
2. Intellectual Property. Notwithstanding the use prohibitions in the
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Intellectual Property Agreement, each of TRS and RSC, hereby grants to the other
a perpetual, non-exclusive, royalty-free, worldwide, fully paid up and non-
assessable license to use intellectual property that is the subject of the
Intellectual Property Agreement and owned by TRS or RSC, respectively, solely in
connection with Integrated Registry. Each party shall use such intellectual
property in accordance with the terms set forth in Section 4 of the Intellectual
Property Agreement.
3. Rights to Retain Revenues. Each of TRS and RSC shall have the right to
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retain all revenues generated from the Integrated Registry, for TRS, from sales
at its retail stores, and, for RSC, from sales online or in its catalog
business.
4. Termination. The term of this Agreement shall begin as of the date hereof
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and shall continue for an indefinite period in full force and effect until such
time as (i) the Intellectual Property Agreement terminates or (ii) one party
provides not less than 90 days' prior written notice to the other.
5. Effect of Termination. Upon termination of this Agreement, each party will
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be permitted to operate an independent registry. Each party shall retain a
copy of all code relating to the Integrated Registry and shall be permitted to
use the information in the Integrated Registry regarding the items for which
customers of either party have registered prior to termination. Each party will
assist the other in making its separated registry fully functional and will be
reimbursed at cost for all such assistance (for example, if the registry
requires the use of graphics stored by RSC, RSC shall delivery copies of such
graphics to TRS). Furthermore, TRS shall be permitted to use the internet
to operate its registry at its physical store locations. Notwithstanding the
foregoing, upon termination of this Agreement, (i) TRS shall not permit
customers to access its baby registry unless they are in, or have called a
person located at, one of TRS' physical stores, (ii) TRS shall not use any
website address belonging to RSC or permit any of its customers to see a website
address that would lead a TRS customer to believe they were accessing RSC, and
(iii) RSC shall not permit customers to access its baby registry except through
the worldwide web.
6. Miscellaneous.
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(A) This Agreement shall be governed by the internal laws of the State of
California without giving effect to the conflict of laws principles
thereof.
(B) This Agreement sets forth the entire agreement between the parties to
it with respect to its subject matter and is intended to supersede all
prior negotiations, understandings and agreements. No provision of
this Agreement may be waived or amended, except by a writing signed by
the parties.
(C) This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original and together which shall constitute
one and the same instrument.
(D) The failure of any party to exercise any right or remedy provided for
in this Agreement shall not be deemed a waiver of any right or remedy
under this Agreement.
(E) All notices, requests, demands, waivers and other communications
required or permitted under this Agreement shall be in writing and
shall be deemed to have been duly given if delivered personally, via
overnight courier, by facsimile transmission or mailed, certified or
registered mail, postage prepaid, return receipt requested to the
address set forth below the party's signature or such other address as
any party shall have duly given to the other.
(F) This Agreement shall be binding upon and inure to the benefit of each
of the parties and their respective successors and permitted assigns.
This Agreement may not be assigned without the prior written consent
of the non-assigning party.
The parties have executed this Agreement as of the date first written
above.
The Right Start, Inc., a California corporation
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Executive Vice President
Notice Address:
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc., a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive Vice President
Notice Address:
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇