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EXHIBIT 10.35
CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
ASTERISKS DENOTE OMISSIONS.
SPONSORSHIP AND ADVERTISING AGREEMENT
Agreement, dated as of April 16, 1999, between InteliHealth, Inc.
("InteliHealth") and Vitamin Shoppe Industries, Inc. ("Company").
WHEREAS, InteliHealth owns and operates a site on the World Wide Web (the "Web")
portion of the Internet located at ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ (together with any
successor Web sites and any co-branded sites on ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ for which
InteliHealth controls the advertising and sponsorships, the "InteliHealth
Site");
WHEREAS, Company owns and operates a site on the Web located at
▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ (together with any successor Web sites, the "Company
Site"; and together with the InteliHealth Site, the "Sites"); and
WHEREAS, Company desires to receive various sponsorship and promotional
placements on the InteliHealth Site and InteliHealth desires to receive certain
marketing and promotional services from Company, all as in accordance with the
terms of this Agreement.
NOW THEREFORE, for good and valuable consideration the parties hereto agree as
follows:
1. EXCLUSIVE VITAMIN SPONSORSHIPS AND ADVERTISING.
(a) Throughout the Term (as defined below), Company shall be the sole and
exclusive vitamin and supplement sponsor of, and, except as set forth in this
Agreement, the sole vitamin and supplement advertiser on, the InteliHealth Site,
and in furtherance thereof InteliHealth shall not place any names, trademarks,
links, buttons, advertisements or content of any Company Competitor (as defined
below), or any links which link directly to any Company Competitor
(collectively, "Competitor Content"), excluding content created by InteliHealth
or licensed from third parties other than any Company Competitor and any names,
trademarks links or buttons in any such content (collectively, "Permitted
Content"), on any area of the InteliHealth Site.
(b) For purposes of this Agreement the term "Company Competitor" mean any entity
set forth on Exhibit A attached hereto, which Exhibit A may be updated from time
to time by the Company, subject to InteliHealth's reasonable approval; or (ii)
any entity which, on the date of any agreement between InteliHealth and any such
entity, derives more than 51% of its revenues from the sale of vitamins and/or
nutritional supplements, provided that with respect to this clause (ii), if
InteliHealth, after using reasonable efforts to determine whether an entity
meets this condition, violates this clause (ii) it shall not be deemed to be a
breach of this Agreement, provided, further, that if InteliHealth is notified in
writing by Company that it has breached this clause (ii), then InteliHealth
shall have 60 days from such notification to remedy such breach before it shall
be deemed to have breached this Agreement. If InteliHealth is unable to remedy
this breach within such 30-day period after using reasonable efforts, then
Company's sole and exclusive remedy shall be to terminate this Agreement
(without any liability to Company arising out of such termination) and to
receive a prorata refund
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CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
ASTERISKS DENOTE OMISSIONS.
of all prepaid amounts. To the extent other entities on the InteliHealth Site
which are not Company Competitors sell vitamins or supplements, they shall not,
except as set forth below, be able to promote the sale of vitamins or
supplements on the InteliHealth Site.
(c) Notwithstanding anything to the contrary contained in this Agreement, during
the terms of each of their current contracts with InteliHealth, but not for any
renewals or extensions thereof, each of [*****] and [*****] may run
advertisements in all areas of the InteliHealth Site other than the Company
Sponsored Zones (as defined below), including advertisements which promote the
sale of vitamins or nutritional supplements.
(a) Company acknowledges that, notwithstanding anything to the
contrary contained in this Agreement, the terms of this Agreement shall not
apply to (i) InteliHealth's Health SuperMall (or an equivalent site) or (ii)
InteliHealth's professional site located at ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.
2. SPONSORSHIP PLACEMENTS.
(a) During the Term, in no way limiting the foregoing in Section 1, Company will
receive the following sponsorship and promotional placements on the InteliHealth
Site:
(i) Company Sponsored Zones on InteliHealth Site. Subject to the terms of
this Agreement, Company will: (A) be the exclusive vitamin and supplement
sponsor in the Vitamin and Nutrition Resource Center area of the
InteliHealth Site, the Ask the Nutritionist area of the InteliHealth Site
and the Alternative Health Zone of the InteliHealth Site (the "Company
Sponsored Zones"); (B) [*****] the first (top) anchor tenant position in
the Vitamin and Nutrition Resource Center and the Alternative Health
Zone, which position shall contain a link to, in Company's sole
discretion, either the Company Site or Company's Vitamin Buzz Web site
("Vitamin Buzz"); (C) place Company sponsorship buttons, badge placements
and banner advertisements, each of which shall contain links to, in
Company's sole discretion, either the Company Site or Vitamin Buzz, in
each Company Sponsored Zone, so that: (i) at least one Company sponsor
button, badge placement or banner advertisement appears on every page
view of every page of each Company Sponsored Zone; (ii) at least [*****]
of all sponsorship buttons appearing in each Company Sponsored Zone are
Company sponsorship buttons; (iii) at least [*****] of all badge
placements appearing in each Company Sponsored Zone are Company badge
placements; (iv) at least [*****] of all banner advertisements appearing
in each Company Sponsored Zone are Company banner advertisements. There
shall be only: (A) up to [*****] anchor tenant positions on the first
page of each of the Vitamin and Nutrition Resource Center and the
Alternative Health Zone; (B) [*****] sponsor button on each page of the
Company Sponsored Zones other than on the first page of each of the
Vitamin and Nutrition Resource Center and the Alternative Health Zone;
and (C) [*****] badge placement and [*****] banner advertisement on each
page of each Company Sponsored Zone. Exhibit B sets forth page shot
mock-ups of the first and second pages of a typical sponsored zone with
anchor tenant positions, substantially as they will appear on its launch
date. Company's placements in the Company Sponsored Zones will be as or
more prominent than
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CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
ASTERISKS DENOTE OMISSIONS.
those contained in Exhibit B. Notwithstanding the foregoing, InteliHealth
may add additional links to the Company Sponsored Zones for
InteliHealth's own promotional use in a manner consistent with that done
in the other zones on the InteliHealth Site.
InteliHealth shall provide the Company Sponsored Zones at least the same,
treatment, prominence and integration throughout the InteliHealth Site
which it provides to all other "zones" on the InteliHealth Site.
Additionally, InteliHealth shall promote the Vitamin and Nutrition
Resource Center through permanent icons, rotating promotional links and
specials on America Online, ▇▇▇.▇▇▇, AltaVista, CompuServe, PointCast and
its current and future InteliHealth distribution partners, subject to the
terms of Section 2(e) below. Until the launch of the Alternative Health
Zone area of the InteliHealth Site, Company will receive comparable
placements within the current alternative health area of the InteliHealth
Site. If InteliHealth removes the current alternative health area of the
InteliHealth Site, then InteliHealth will provide Company with similar
placements within a similar and mutually agreeable area of the
InteliHealth Site as a substitute. If the Alternative Health Zone is not
launched within [*****] of the date of this Agreement, then the
Company may elect to sponsor the weight management zone or any other zone
mutually agreed upon by the parties and shall receive placements therein
comparable to those that it would have received in the Alternative Health
Zone.
(ii) Additional Vitamin and Nutrition Sponsorships. In addition to the
foregoing, Company shall be the exclusive vitamin and nutritional
supplement sponsor of the following vitamin and nutrition specific areas:
(A) the A-Z Vitamins and Supplements Glossary on the InteliHealth Site;
(B) the interactive meal planning asset in the Vitamin and Nutrition
Resource Center; and (C) the InteliHealth recipe area in the Vitamin and
Nutrition Resource Center, and shall receive the same treatment and
placements in those areas as it receives in the Company Sponsored Zones.
(iii) Other Assets in the Vitamin and Nutrition Resource Center. To the
extent InteliHealth creates any other content assets within the Vitamin
and Nutrition Resource Center, Company will be the exclusive vitamin and
supplement sponsor of such assets to the same extent as set forth in
Section 2(a)(i) above.
(iv) Additional Sponsorships on InteliHealth Site. To the extent
InteliHealth creates any major content assets within the InteliHealth
Site the main topic of which is vitamins, nutritional supplements and/or
alternative health, Company will be the exclusive vitamin and supplement
sponsor of such assets to the same extent as set forth in Section 2(a)(i)
above. In addition, Company will be the exclusive vitamin and supplement
sponsor of the USDA Nutritional Database to the same extent as set forth
in Section 2(a)(i) above.
(v) Email Sponsorship. Company will be (A) the exclusive vitamin sponsor
of InteliHealth's weekly nutrition email and (B) one of the rotating
sponsors of InteliHealth's daily and weekly health emails, provided, that
Company shall be the sole and exclusive vitamin sponsor of all vitamin
and supplement emails. InteliHealth's obligations described in
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ASTERISKS DENOTE OMISSIONS.
Section l (a) above with respect to advertising shall also apply to all
emails generated by InteliHealth during the Term.
(vi) Sweepstakes. InteliHealth shall create vitamin and nutrition related
sweepstakes and Company shall, for no additional charge, be given the
option to sponsor each such sweepstake.
(vii) Search Terms. Company will be the exclusive vitamin sponsor of at
least [*****] "search terms," chosen by Company, subject to
InteliHealth's reasonable approval. Company may update such search terms
from time to time, subject to InteliHealth's reasonable approval.
(viii) Additional Advertising. Company will receive banner and badge
placements throughout the InteliHealth Site, which placements shall be
substantially the same as those received by every other
similarly-situated zone sponsor.
As used in this Section 2(a), the term "exclusive" with respect to each Company
Sponsored Zone means that: (A) Company shall be the sole and exclusive vitamin
and nutrition supplement sponsor of each Company Sponsored Zone, and, except for
Permitted Content or as otherwise provided in this Agreement, no Competitor
Content, or links directly to any Competitor Content shall appear in the Company
Sponsored Zones; and (B) other than (i) Company anchor tenant positions, sponsor
buttons, badge placements, banner advertisements or other Company promotions,
(ii) Permitted Content or (iii) as otherwise provided in this Agreement, no
content, including content in any anchor tenant, sponsor button, badge and
banner advertisement space, promoting the sale of vitamins or nutritional
supplements, whether by a Company Competitor or anyone else, shall appear in the
Company Sponsored Zones. For purposes of this paragraph, except for Permitted
Content or as otherwise provided in this Agreement, the term Competitor Content
shall include the content of all drugstores, including, without limitation, the
content of [*****], [*****] and [*****]. Notwithstanding anything in
this Agreement to the contrary, [*****] may, during the term of its agreement
with InteliHealth but not for any extensions or renewals thereof, occupy one of
the four remaining anchor tenant positions in the Vitamin and Nutrition Resource
Center, but shall not be allowed to promote the sale of specific vitamins or
nutrition supplements therein. InteliHealth's obligations with respect to each
area of the InteliHealth Site set forth in this Section 2(a) shall also apply to
all areas which are successors or replacements to such areas and to all new
vitamin and nutrition areas in the Vitamin and Nutrition Resource Center other
than those set forth in this Section 2(a).
(b) InteliHealth may not, without the prior written consent of Company (which
will not be unreasonably withheld), substantially alter, change or modify the
look, feel or functionality of any Company Sponsored Zone so as to materially
change or alter Company's prominence, in terms of either size, placement or
frequency, within such zone so that such prominence is no longer at least
equivalent to such prominence on its launch date.
(c) If InteliHealth wishes to allow any area on the InteliHealth Site set forth
in this Section 2 in which Company is the exclusive sponsor of vitamins and
supplements to be displayed on any other
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ASTERISKS DENOTE OMISSIONS.
Web site, whether owned by InteliHealth or not, and if InteliHealth is able to
control the advertising placements within or sponsorship of such area on such
third party Web site, InteliHealth shall, prior to contacting any other party
with respect to such advertisements or sponsorship, notify Company in writing
prior to the launch of such area and shall negotiate in good faith with Company
to allow Company to be the exclusive advertiser and sponsor of such area on such
third party Web site.
(d) For each of the placements described in this Section 2, Company shall
provide InteliHealth with all trademarks, logos or banners which will be
displayed on the InteliHealth Site and which will link to the Company Site.
Where feasible, the placement may include mutually agreeable text. The parties
hereto agree to cooperate and work together in the establishment of all links
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. The parties agree that, notwithstanding anything to the contrary contained
in this Agreement, all placements under this Agreement must comply with
InteliHealth's standard advertising guidelines which are contained in Exhibit C
hereto, which guidelines shall apply to all zones on the InteliHealth Site.
(e) Company acknowledges that the Ask the Nutritionist Button and other content
assets of InteliHealth may not be accepted by all of InteliHealth's distribution
partners' sites.
3. COMPANY PROMOTIONAL ACTIVITIES. Company will engage in the promotional
and marketing activities described on Exhibit D. In all such promotional
activities Company shall, during the Term, be able to state that Company is "a
proud Marquis sponsor of [the InteliHealth Web site] or [▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇]" or
"exclusive category sponsor of the Vitamin and Nutrition Center on
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇," subject to InteliHealth's prior review and written approval
of all such uses; however, following such process InteliHealth may grant
approval for entire advertising campaigns or for general use guidelines for
specific advertisements. In addition, Company may display posters and other
in-store promotions offering the sale of ▇▇▇▇▇ ▇▇▇▇▇▇▇ products using the
tagline "InteliHealth, Home to ▇▇▇▇▇ ▇▇▇▇▇▇▇ Information" and the url
▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ as a source for comprehensive Health information, subject
to InteliHealth's prior review and written approval. Other than as explicitly
provided for in this Agreement, all other promotional activities relating to
this Agreement are subject to the prior approval of InteliHealth and Company.
4. FEES.
(a) Annual Fee. The fee for the placements and other rights provided under this
Agreement for the Initial Term (as defined below) is [*****]. Of this fee,
[*****] shall be payable on the date of this Agreement, and the balance of such
fee shall be paid in six (6) equal installments of [*****], with the first
installment (the "First Installment") due on the latter of (i) the Launch Date
(as defined below) and (ii) the 15th day of the fourth month of the Term
following the date of this Agreement, and the remaining five installments due on
the 15th day of each of the seventh, tenth, 13th, 17th and 20th months of the
Term following the date of this Agreement, provided that the first of such five
remaining installments (the "Second Installment") shall not be due until after
the First Installment has been paid. In the event the First Installment is paid
later than the seventh
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CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY
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ASTERISKS DENOTE OMISSIONS.
month of the Term, the Second Installment shall be paid no later than three
months following the payment of the First Installment.
(b) Late Payment. In addition to InteliHealth's other rights under this
Agreement, InteliHealth may suspend all sponsorship and promotional placements
in the event any payment is late by more than five (5) business days.
5. REPORTING. InteliHealth will provide Company with monthly reports
containing substantially the same types of information delivered to other of its
similarly situated sponsors, which reports will include information regarding
impressions and click-throughs Company shall have the right to use such data
exclusively for its internal business purposes and shall treat such data as
confidential and proprietary information.
6. TERM.
(a) 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
[*****] year anniversary of the date (the "Launch Date") on which (i) the
Vitamin and Nutrition Resource Center, the Ask the Nutritionist feature area,
and the placements in the current alternative health area on the InteliHealth
Site are operational and (ii) the links to the Company Site within each of the
Vitamin and Nutrition Resource Center and the Ask the Nutritionist feature area
on the InteliHealth Site are established all as in accordance with the terms of
this Agreement, subject to earlier termination as set forth in the General Terms
and Conditions. If the Launch Date has not occurred by [*****], Company shall,
in its sole discretion, be entitled to terminate this Agreement without any
liability and receive a full refund of all amounts paid by Company to
InteliHealth pursuant to this Agreement prior to the date of such termination.
(b) On or before the 95th day prior to the expiration of the Initial Term,
InteliHealth shall deliver a written notice to Company to notify Company of the
commencement of the extension negotiation period. Between the 90th and 60th day
prior to the expiration of the Initial Term, InteliHealth and Company shall in
good faith negotiate to extend the term of this Agreement. If by the 30th day
prior to the expiration of the Initial Term, InteliHealth and Company shall have
not agreed on mutually agreeable terms for an extension of the Term of this
Agreement, InteliHealth may commence negotiations with third parties with
respect to the sponsorship of the Company Sponsored Zones, provided, that prior
to entering into any agreement with any third party regarding the sponsorship of
the Company Sponsored Zones, [*****], and Company shall have five business days
from the receipt of such notice to notify InteliHealth in writing that Company
will accept such Third Party Terms, in which case InteliHealth and Company shall
enter into an agreement for the extension of the Term on substantially the terms
set forth in the Third Party Terms. If Company does not respond to InteliHealth
within such five business day period, then on or after the next succeeding
business day, InteliHealth may enter into an agreement with such third party
substantially upon the terms of the Third Party Terms.
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CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY
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ASTERISKS DENOTE OMISSIONS.
7. COMPANY ADVERTISING. InteliHealth hereby confirms and agrees that during
the Term Company shall be able to serve up its own advertising using NetGravity
software and tags, and that InteliHealth shall not do anything which would
unreasonably interfere or hamper such serving. Notwithstanding anything in this
Agreement, all information regarding Company advertising (including Company
banner advertisements), including all users viewing and clicking information
with respect thereto, shall be deemed to be confidential information.
(collectively, "Confidential Advertising Information"). To the extent that in
connection with InteliHealth's advertising efforts, or otherwise, any third
party may or will receive any Confidential Advertising Information from or
through InteliHealth, InteliHealth agrees that prior to such third party
receiving any such information InteliHealth will enter into an agreement with
such third party pursuant to which such third party will agree to keep any such
Confidential Advertising Information received by such third party confidential
to the same extent as InteliHealth is required to keep such information
confidential under this Agreement. Such agreement shall also state that Company
is a third party beneficiary of such agreement and as such may enforce its
rights and seek damages should such third party breach such agreement.
7. CONTACT INFORMATION.
Set forth below is the information for each party of the person responsible for
its activities under this agreement:
Name and Title: ▇.▇. ▇▇▇▇▇▇ President and CEO
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Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
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Phone: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇ Email: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
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Name and Title: ▇▇▇ ▇▇▇▇▇▇▇▇, VP of Sales and Marketing
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Address: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
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Phone: ▇▇▇-▇▇▇-▇▇▇▇ Fax:▇▇▇-▇▇▇-▇▇▇▇ Email: ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
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ASTERISKS DENOTE OMISSIONS.
The attached Exhibit(s) and General Terms and Conditions are a part of this
Agreement. If the terms of this Agreement are acceptable to you, please have an
authorized representative of your organization sign below.
INTELIHEALTH, INC. VITAMIN SHOPPE INDUSTRIES, INC.
By: [SIG] By: [SIG]
--------------------------------- ----------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇▇ Name: ▇.▇. ▇▇▇▇▇▇
------------------------------- --------------------------
Title: VP of Sales and Marketing Title: President and CEO
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GENERAL TERMS AND CONDITIONS
1. Subject to the terms and conditions hereof, Company hereby represents and
warrants that it has the power and authority to grant, and does hereby
grant to InteliHealth a non-exclusive, non-transferable, royalty-free,
worldwide license to reproduce and display all logos, trademarks, trade
names and similar identifying material relating to Company (the "Company
Marks") solely in connection with the promotion, marketing and
distribution of Company and the Company Site in accordance with the terms
hereof, provided, however, that InteliHealth shall, other than as
specifically set forth in this Agreement, not make any specific use of
any Company ▇▇▇▇ without first submitting a sample of such use to Company
and obtaining its prior consent, which consent shall not be unreasonably
withheld. Subject to the terms and conditions hereof, InteliHealth hereby
represents that it has the power and authority to grant, and does hereby
grant to Company a non-exclusive, non-transferable, royalty-free,
worldwide license to reproduce and display all logos, trademarks, trade
names and similar identifying material relating to InteliHealth (the
"InteliHealth Marks") solely in connection with the promotion, marketing
and distribution of InteliHealth and the InteliHealth Site in accordance
with the terms hereof, provided, however, that Company shall, other than
as specifically set forth in this Agreement, not make any specific use of
any InteliHealth ▇▇▇▇ without first submitting a sample of such use to
InteliHealth and obtaining its prior consent, which consent shall not be
unreasonably withheld. The foregoing licenses shall terminate upon the
effective date of the expiration or termination of this Agreement. Except
as explicitly set forth in this Agreement, neither party grants to the
other any rights to any of its intellectual property.
2. Subject to Section 2(b) of the Agreement, each party reserves the right
to modify the design, organization, structure, look and feel, navigation
and other elements of its Site; provided that if any such modifications
by InteliHealth significantly affect Company's sponsorship placements,
the parties will work together in good faith to provide Company with a
comparable package of placements.
3. 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 sole 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.
4. Each party will be solely responsible for the development, operation and
maintenance of its Site and for all materials that appear on its Site,
other than for any materials provided by the other party for which the
party providing such materials shall be solely responsible, to the extent
such materials are not altered by the receiving party. 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 such materials; (iii) for ensuring that such materials
do not
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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 such materials 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 such party's materials
which appear on such other party's Site). Except for the foregoing, or as
otherwise specifically set forth in this Agreement, neither party makes
any representations, warranties or 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.
5. Each party hereby agrees to indemnify, defend 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 as such Losses (or actions
in respect thereof) arise out of or are based on (i) any representation
or warranty made by it herein being untrue, (ii) any breach by it of the
licenses granted by it hereunder or of any other covenant or agreement
made by it herein; (iii) the use by it of any trademarks, Materials or
Content (as defined below) of the indemnifying party other than in
accordance with the terms hereof; (iv) the marketing, use or distribution
of such party's products or services; (v) the development, operation, and
maintenance of its Site; and (vi) such party's Content or other
Materials. For purposes herein, "Content" shall mean, with respect to
each party, (A) the proprietary content delivered by such party to the
other party pursuant to this Agreement, but only to the extent that such
content is not altered by the receiving party and the Loss in question
would not have arisen but for such alteration, and (B) the proprietary
content contained on such party's Site other than the indemnified party's
Content or Materials. 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.
6. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT,
INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING,
WITHOUT LIMITATION, DAMAGES FOR LOSS OF REVENUE OR LOST PROFITS, ARISING
FROM ANY PROVISION OF THIS AGREEMENT, EVEN IF SUCH PARTY HAD BEEN ADVISED
ON THE POSSIBILITY OF SUCH DAMAGES. Except for the parties'
indemnification obligations above, each party's total liability for
monetary damages shall not exceed the total amount of fees paid to
InteliHealth hereunder. The foregoing limitations shall not apply to each
party's rights under applicable intellectual property laws.
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7. During the Term, and for a period of two years thereafter, each party
shall retain in confidence any information provided to it by the other
party and marked, labeled or otherwise designated as confidential or
proprietary, provided, that the terms and conditions of this Agreement
shall be deemed to be confidential information, unless the information
sought to be disclosed (i) is publicly known at the time of disclosure,
(ii) is lawfully received from a third party not bound in a confidential
relationship with the other party, (iii) is published or otherwise made
known to the public by the other party, (iv) was generated independently
without reference to the other party's confidential information, or (v)
is required to be disclosed under law or a court order, 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.
8. Either party may terminate this Agreement (i) at any time in the event of
a material breach by the other party that has not been cured within
thirty (30) days of written notice thereof or (ii) at any time upon sixty
(60) days written notice to the other party. InteliHealth will provide
Company with a prorata refund of all prepaid fees in the event this
Agreement is terminated by Company pursuant to clause (i) above or by
InteliHealth pursuant to clause (ii) above. In the event that this
Agreement is terminated by InteliHealth in accordance with clause (ii)
above, InteliHealth agrees that it shall not enter into any agreement or
arrangement with any other entity which is similar to the arrangement
which it has with Company pursuant to this Agreement, specifically
including allowing any other entity to be a vitamin or supplement sponsor
of the InteliHealth Site, within the six (6) month period following such
termination.
9. Neither party shall be responsible for any failure to perform its
obligations under this Agreement (other than obligations to pay money)
caused by an event reasonably beyond its control, including but not
limited to, the infrastructure of the Internet, wars, riots, labor
strikes, natural disasters or any law, regulation, ordinance or other act
or order of any court, government or governmental agency.
10. Neither party will issue any press release or other public statement
regarding this Agreement without the other party's prior written consent.
Notices delivered under this Agreement may be given in writing by letter,
facsimile or email (with hard copy confirmation) and will be effective
when received. This Agreement contains the entire understanding of the
parties with respect to the transactions and matters contemplated hereby,
supersedes all previous communications, understandings and agreements
(whether oral or written), and cannot be amended except by a writing
signed by both parties. This Agreement will be construed in accordance
with the laws of the Commonwealth of Pennsylvania, and all disputes
arising from or related to this Agreement shall be brought exclusively in
the Court of Common Pleas, ▇▇▇▇▇▇▇▇▇▇ County, Pennsylvania, or the U.S.
District Court, Eastern District of Pennsylvania. The terms of Paragraphs
4 through 10 will survive expiration or termination of this Agreement.
This Agreement does not constitute either party an agent, legal
representative, joint venturer, partner or employee of the other for any
purpose whatsoever
3
12
CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
ASTERISKS DENOTE OMISSIONS.
and neither party is in any way authorized to make any contract,
agreement, warranty or representation or to create any obligation,
express or implied, on behalf of the other party hereto. This Agreement
may be executed in any number of counterparts, each of which shall be
deemed an original and together which shall constitute one and the same
instrument. This Agreement and the provisions hereof shall be binding
upon and inure to the benefit of and be enforceable by the parties hereto
and their successors and permitted assigns; provided, however, that
neither party shall have the right to assign this Agreement, in whole or
in part, without the other party's prior written consent, which consent
will not be unreasonably withheld, except that Company may assign its
rights and obligations hereunder to any entity which owns and operates
the online business of Company (including, but not limited to, the
Company Site) and which is either controlled by Company or which
commences an initial public offering, provided that such entity agrees in
writing to be bound by all of the terms and conditions of this Agreement.
4
13
CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
ASTERISKS DENOTE OMISSIONS.
EXHIBIT A
VITAMIN SHOPPE COMPETITORS
Acta Pharmacal Puritans Pride
All Vitamins Reach4life
Austin Nutritional Realtime
BenSalem Naturals ▇. ▇▇▇▇▇▇▇▇▇ Office, Inc.
B-Vital Shop Vitamins
Chayas Chemical-Free The Herb Shop
Cherokee Naturals, Inc. The Herb Shoppe
Club Vitamin The Nickel and Thyme Shoppe
GNC The Vitamin Source
Good Life Nutrition The Vitamin Tree
Green Tree US Health Distributors, Inc.
Green Turtle Bay Vitamin Vita Save
Greenshack Direct VitaCare
Health and Vitamin Express VitaFit
Health Depot Vital Life
Infinity 2 Vitamin Depot
▇▇▇▇▇▇▇▇ Natural Sources Vitamin Express
▇▇▇▇▇▇▇▇ Vitamin Company Vitamin House
Kava Systems Vitamin House
L & H Vitamins Vitamin Shack
Life Plus Vitamins Vitamin Warehouse, Inc.
MineralNet Vitamins for Life
Mother Nature's General Store Vitamins Online
Mountain Naturals Vitamins ▇▇▇▇▇▇▇▇.▇▇▇
My Vitamins Vitanet
Nature Sunshine Vitawise
Nature Sunshine Herb and Vitamins Wholesale Vitamins
Noah's Ark Vitamin Planet
Nutritional Direct Vitamin Research Products
Nature's Bounty Vitamin Discount Connection
Vitamin World Vitamin Plus
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Vitamins Network
Nutritional Warehouse ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
▇▇▇▇▇▇▇▇ Nutritional
14
CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
ASTERISKS DENOTE OMISSIONS.
EXHIBIT B
MOCK-UPS OF TYPICAL SPONSORED ZONE
See attached.
15
CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
ASTERISKS DENOTE OMISSIONS.
INTELIHEALTH - RESOURCE CENTER
ADVERTISING SPECIFICATIONS
--------------------------------------------------------------------------------
THE ▇▇▇▇▇ ▇▇▇▇▇▇▇ HEALTH [INSIDER LOGO] FREE FOR A LIMITED TIME!
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
[INTELIHEALTH LOGO] InteliHEALTH Home to
The Trusted Source ▇▇▇▇▇ ▇▇▇▇▇▇▇
Health Information
--------------------------------------------------------------------------------
ANCHOR TENANT
POSITION
BANNER ADVERTISEMENT
468 x 60 pixels (no more than 15 Kb)
(surrounded by dark blue: 0/0/102 or 40% blue or #000066)
If animated, 3 cycles max. Keep in mind, the animation
might stop at either the first or the last frame.
[LOGO] Healthcare
Professionals
go to ANCHOR TENANT POSITION
120 x 60 pixels (no more than 10Kb: no animations)
InteliHealth
Professional Network
BADGE ADVERTISEMENT
120 x 90 pixels (no more than 10Kb)
16
CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
ASTERISKS DENOTE OMISSIONS.
INTELIHEALTH
ADVERTISING SPECIFICATIONS
--------------------------------------------------------------------------------
THE ▇▇▇▇▇ ▇▇▇▇▇▇▇ HEALTH [INSIDER LOGO] FREE FOR A LIMITED TIME!
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Take our
[INTELIHEALTH LOGO] InteliHEALTH Home to test
The Trusted Source ▇▇▇▇▇ ▇▇▇▇▇▇▇ for
Health Information depression
--------------------------------------------------------------------------------
BANNER ADVERTISEMENT
468 x 60 pixels (no more than 15 Kb)
(surrounded by dark blue: 0/0/102 or 40% blue or #000066)
[LOGO] Healthcare
Professionals
go to BADGE - SPONSOR LOGO
120 x 60 pixels (no more than 10Kb)
InteliHealth
Professional Network
BADGE - SPONSOR MESSAGE
120 x 90 pixels (no more than 10Kb)
17
CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
ASTERISKS DENOTE OMISSIONS.
EXHIBIT C
COMPANY PROMOTIONAL ACTIVITIES
Company shall provide each of the following at least [*****] during the Term:
The promotion of InteliHealth in Vitamin Shoppe catalogs.
The promotion of InteliHealth at Vitamin Shoppe retail stores.
The promotion of InteliHealth on ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.
At Company's discretion, Space ads in print magazines and newspapers will
include InteliHealth.
Cross pollination of Company's catalog customers with InteliHealth
catalog or newsletter subscribers.
Press releases to industry and consumer levels of partnership.
Inserts of InteliHealth newsletter subscription cards as box stuffers.
Inserts of InteliHealth Healthy Home catalog requests as box stuffers.
Box stuffing of InteliHealth Healthy Home catalog.
Cooperative email promoting InteliHealth to the Vitamin Shoppe email
database of "opt-in" addresses.
Special promotion exclusive to InteliHealth, such as a free supplements
organizer with registration or purchase.
Offer the A-Z guide to supplements as a free premium to first time buyers
via InteliHealth email.
In an effort to at least partially address the issue of offering a
variety of choices to the consumer, the parties may agree to place
creative that promotes brand names such as TwinLab, Schiff, Natrol,
Nature's Way, etc., in place of the Vitamin Shoppe logo.
18
CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
ASTERISKS DENOTE OMISSIONS.
EXHIBIT D
INTELIHEALTH ADVERTISING AND SPONSORSHIP GUIDELINES
- InteliHealth, in all cases, maintains complete editorial independence and
control over our content. We do not allow advertisers, licensees or third
party sponsors to make changes to any content without InteliHealth's
prior written consent.
- It must be clear that all advertisements and sponsorships are not
editorial content.
- All advertisements and sponsorships will be clearly separate from all
health content.
- No advertising or sponsorships for firearms, alcohol, tobacco or
pornographic products or for any other products or services inconsistent
with the mission of InteliHealth will be allowed.
- InteliHealth will not sell any information to a third party that would
allow it to identify an individual's medical condition(s). InteliHealth
reserves the right to sell data that does not identify individual users
and to use the information in connection with its own products and
services.
- The Healthy Home online store is provided as a service of InteliHealth.
In accordance with our strict editorial policies, neither ▇▇▇▇▇ ▇▇▇▇▇▇▇
nor any information providers endorse specific products on this service.
- All promotional placements and content must be presented in a manner
which does not imply endorsement of any products or services or of any
sponsors, advertisers, licensees, or any other third parties.
- Advertisements and sponsorships must not (1) diminish the reputation of
InteliHealth or its partners, (2) diminish the quality or integrity of
InteliHealth's content, products or services or those of its partners, or
(3) otherwise be inconsistent with the goals and mission of InteliHealth.
- InteliHealth reserves the right to reject or remove any inappropriate
advertisements or other promotional placements in its reasonable
discretion, provided that promptly following any such rejection or
removal the parties will work together in good faith to rectify the
situation.
- The text of all sponsorship messages must be corporate messages only
(i.e., no references to specific products) or other mutually-agreed upon
text (typically, "Sponsored by xxxxxxxx"). InteliHealth and the sponsor
must agree on the site to which a sponsorship button links.
- The text of all anchor tenant placements must be corporate messages only
(i.e., no references to specific products) or other mutually-agreed upon
text. InteliHealth and the anchor tenant must agree on the site to which
the placement links.