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EXHIBIT 10.8
RODALE PRESS, INC.
WEBSITE AGREEMENT
THIS WEBSITE AGREEMENT (the "Agreement") is made as of this 2nd day of
May, 1997 (the "Effective Date") between Rodale Press, Inc. ("Rodale"), a
Pennsylvania corporation, with offices at ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇, and WIRE NETWORKS, INC. ("WNI"), a California corporation, with
offices at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
WHEREAS Rodale is a book and magazine publisher;
WHEREAS WNI has substantial Internet design, editorial and
community-building expertise and is a leading provider of interactive content;
and
WHEREAS both parties deem their respective services and products to be
largely complementary and have agreed to jointly produce a content and community
site on the World Wide Web and to grant certain rights to each other in
furtherance of promoting such site, on the terms and conditions set forth in
this Agreement,
NOW THEREFORE, in consideration of mutual promises contained herein, the
parties agree as follows:
ARTICLE 1: CERTAIN DEFINITIONS
1.1 Certain Definitions. As used herein, the following terms shall have
the following defined meanings:
"Advertising Revenue" shall mean, for any period, the sum of the
aggregate amounts collected by or on behalf of either party hereto arising from
the license or sale of any Advertising Rights on the Site, and excluding amounts
allocable to any credits granted for unused services, discounts, any direct
costs of collection (including, without limitation, fees paid to third parties,
agency fees and fees paid between parties to WNI's internal sales personnel or
to Rodale).
"Intellectual Property" shall mean all rights in and to trade secrets,
patents, copyrights, trademarks, know-how, as well as moral rights and similar
rights of any type under the laws of any governmental authority, domestic or
foreign, including rights in and to all applications and registrations relating
to any of the foregoing.
"Internet" shall mean the collection of computer networks commonly known
as the Internet.
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"Page View" shall mean each occasion in which a user visiting the Site
accesses a page from the Site.
"Prevention(R)" shall mean the registered trademark of Rodale Press,
Inc. which trademark is used as a designation for the origin of Rodale's
Prevention(R) magazine.
"Site" shall mean the site on the WWW currently referred to as
"Prevention(R)," which is the site to be jointly produced by WNI and Rodale
pursuant to Article 2 of this Agreement, and which includes the collection of
the HTML files, brand features and concepts, database, and related scripts, all
trademarks, servicemarks, logos and other distinctive brand features that relate
to the Site excluding Rodale and Wire Networks' marks.
"Site Name" shall mean the name or names jointly selected by the parties
as the trademark(s) for the Site.
"URL" shall mean the Universal Resource Locator, which provides a unique
Internet protocol address for accessing an Internet page.
"WWW" shall mean the World Wide Web, a system for accessing and viewing
text, graphics, sound and other media via the Internet.
1.2 Rules of Construction. As used in this Agreement, all terms used in
the singular shall be deemed to include the plural, and vice versa, as the
context may require. The words "hereof," "herein," and "hereunder," and other
words of similar import refer to this Agreement as a whole, including the
Exhibits hereto, as the same may from time to time be amended or supplemented.
The word "including," when used hereof is not intended to be exclusive and means
"including, without limitation." References to "dollars" and "$$" are to be
United States dollars. Headings contained in this Agreement are for ease of
reference only and shall have no legal effect. The term "party" or "parties"
shall mean, as the case may be, Rodale or WNI, individually or collectively. In
constructing the terms of this Agreement, no presumption shall operate in favor
of or against any party as a result of its counsel's role in drafting the terms
and provisions hereof.
ARTICLE 2: THE SITE
2.1 General Responsibilities of the Parties.
(a) WNI's Responsibilities. WNI will be responsible for creating
the initial design for the Site, based upon the Product Plan mutually agreed
upon by both parties. WNI will have primary responsibility for producing,
hosting and creating content for the Site during the Term of this Agreement.
(b) Rodale's Responsibilities. Rodale will be responsible for
providing content and resources from its print magazines and libraries and
providing its promotional capabilities in accordance with the Product Plan.
2.2 Product Plan.
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The parties will jointly develop the Product Plan as soon as practicable
after the execution hereof. Any change or additions to the Product Plan must be
mutually agreed by the parties. The Product Plan ▇▇▇▇ consist of an editorial
plan, a site production and hosting plan and Site links.
2.3 Editorial Plan.
(a) An editorial plan will be developed by WNI and be approved by
Rodale to articulate the editorial mix and subject matter categories for the
Site. Editorial standards will be articulated in advance in the editorial plan
so that a common understanding of article length, editorial tone and attitude is
jointly understood. The editorial mix will be designed specifically for the [*].
The editorial plan will be documented as a part of the Product Plan and an
editorial calendar will be created for the marketing plan and production
schedule.
(b) Rodale will assign one primary representative to carry out
its responsibilities in accordance with the editorial plan. Rodale will be
responsible for providing the editorial content (on disk), photos/artwork and
other health content (e.g., video, databases, research) according to the
production schedule set forth in the editorial plan and submitting it to WNI's
Product Development manager. WNI will transform the content to WWW form (edit,
add interactivity, audio, video, etc.). In addition, WNI will create original
works for the Site, including derivative works based on content/resources
provided by Rodale. All editorial content will be approved by the Rodale
representative before being uploaded to the Site.
2.4 Site Production and Hosting.
(a) The Site will be developed in accordance with the Product
Plan that Rodale and WNI have mutually agreed upon. Such mutual agreement will
be required for any changes or additions to the Product Plan.
(b) WNI will have primary responsibility for the Site design.
Rodale will assign a single representative to carry out Rodale's
responsibilities hereunder who will work in concert with a team from WNI to
review the design and collaboratively work on changes to it. The initial Site
design will be mutually agreed upon by the parties. Changes to the Site design
after launch of the Site will be developed following the same process.
(c) Upon approval of all editorial content, WNI will be
responsible for formatting and uploading all data to the Site.
(d) WNI will be in charge of creating and producing advertising
banners, as well as uploading and rotating them on the Site. WNI will track
advertising performance and provide weekly reports to Rodale detailing this
performance. WNI will be in charge of tracking traffic on the Site, including
visits and Page Views. Rodale will have daily access to traffic reports as well
as original log files.
(e) WNI will provide hosting services for the Site. This includes
setup, monitoring and maintenance of the web server(s), providing Internet
connectivity for the server(s) and producing reports on Site traffic.
*Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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2.5 Site Links.
(a) WNI will provide promotional links to the Site. WNI will
also promote the Site through advertising banners on its own WWW sites if there
is available unsold advertising inventory.
(b) At its discretion, Rodale will provide a link from all of
its sites to the Site. Rodale will also promote the Site through advertising
banners on its WWW sites if there is available unsold advertising inventory.
(c) As soon as practicable after the execution of this Agreement,
the parties will mutually agree on the content or a message to appear on the
current "Women's Edge" site. In addition, a link will be provided on the Women's
Edge quote/message page to the Women's Wire Body channel.
(d) The design of the advertising banners or logo treatments will
be mutually agreed upon by both parties.
2.6 Advertising Rights.
(a) WNI will have primary responsibility for the advertising
strategy, advertising rates and discount policy and for selling and scheduling
advertising space and managing inventory availability for the Site. In addition,
WNI will be responsible for managing an advertising scheduling and tracking
system to be implemented by WNI and Rodale as described in the Product Plan.
(b) WNI and Rodale each agree to use reasonable commercial
efforts to sell advertising space on the Site; provided, however, that neither
party makes any representation or warranty with respect to the amount of
advertising revenue to be generated by such party.
(c) Both parties have the right to sell Advertising Rights
inventory and receive a sales commission therefore in an amount not to exceed
[*], provided, however, that no sales commission shall be paid based on any
barter or other trade pursuant to Section 2.6(d) below. In such cases where
Rodale or WNI bundles advertising on the Site with other advertising properties
for a blended rate, the Advertising Revenue will be determined by calculating
its pro rata share based on the rate card of each property. Each proposed sales
transaction by Rodale shall be approved by WNI. Neither party shall sell to any
party that sells tobacco or spirits. All ads will conform with Rodale's
standards as set forth in Exhibit A.
(d) Rodale and WNI agree that [*] of the total advertising
inventory for the Site will be reserved ("Reserved Avails") for barters or other
co-marketing arrangements intended to increase traffic or provide merchandise on
the Site during its launch. [*]. At such time as [*] of available advertising
inventory is sold out, such Reserved Avails will be eliminated and one hundred
percent (100%) of the total advertising inventory will be available for sale.
*Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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(e) As soon as WNI sells advertising for the Site or hosts the
server on which it resides (whichever is first), the Advertising Revenue shall
become allocatable as set forth in 2.8(b) below.
2.7 Marketing. In addition to the respective responsibilities of Rodale
and WNI for links and advertising banners as set forth in Sections 2.5 and 2.6
above, WNI will have primary responsibility for performing all other consumer
marketing activities, including the development of marketing programs and
marketing collateral, to promote the Site; provided, however, that Rodale and
WNI will mutually agree upon a product positioning strategy before any marketing
program is commenced or before any changes are made to an ongoing marketing
program. Rodale shall promote the Site in its print magazines and the magazines'
specials. [*] Rodale shall promote the Site in all other franchise extensions as
appropriate.
2.8 Payments.
(a) At the end of each three month period ("quarter") of this
Agreement, representatives of Rodale and WNI will meet to report their
respective cash investments in the Site for the preceding quarter and the Net
Revenue (as defined below) in the quarter to determine the "Net Investment
Differential" for the quarter and the "Cumulative Net Investment Differential"
for the quarter. The Net Investment Differential for the quarter shall be
calculated as:
[*]
At the end of each quarter, new Cumulative Net Investment Differential
will be calculated as:
[*]
The party entitled to recoup a Cumulative Net Investment Differential
shall also be entitled to "Interest" calculated as follows:
At the end of each quarter, Interest will be added to the Cumulative Net
Investment Differential. The previous Cumulative Net Investment Differential, if
any, will be charged interest at a rate of 1.5% (.015) per month for the quarter
outstanding. This Interest amount and the Net Investment Differential will be
added to the previous Cumulative Net Investment Differential to arrive at the
new Cumulative Net Investment Differential. In any quarter in which the new
Cumulative Net Investment Differential becomes negative, Rodale will receive one
half of the new Cumulative Net Investment Differential as of the end of that
quarter.
*Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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Each of the parties hereto agrees that each such report shall reflect
accurately and correctly its respective investment in the Site and that each
such estimate shall be prepared in good faith and with best efforts to
accurately estimate such party's investment.
(b) Net Revenue (advertising revenue plus ancillary revenue)
received from the Site shall be allocated between the parties in the following
manner during each year of the Agreement: (i) [*]; (ii) thereafter [*]; and
(iii) such allocation shall apply to all revenue generated from the WWW
including ancillary revenues generated by either party.
(c) Both parties will submit budgets in advance to calculate the
total development cost of the Site. Neither party shall deviate from the budget
by more than [*] without the prior approval of the other party. WNI's budget is
attached hereto as Exhibit B; Rodale's budget is attached hereto as Exhibit C.
(d) Within forty-five (45) days following the end of each
quarter, WNI will provide to Rodale a quarterly report of advertising sales (in
a format mutually agreed upon by the parties) and will transfer to Rodale such
portion of the Advertising Revenue for such quarter in accordance with the
calculation set forth in Section 2.8(b) above.
(e) In the event that (i) either party reasonably believes that
the other's actual investment significantly varies from the amount reported in
any given quarter or quarters pursuant to Section 2.8(b) above, or (ii) Rodale
reasonably believes that an error has occurred in the monthly reports provided
or amounts paid by WNI with respect to Advertising Revenue, such party may, at
its own expense and upon ten (10) days prior written notice to the other party
(the "Audited Party"), designate independent auditors or accountants (the
"Auditor") to examine or audit the Audited party's records in a reasonable
manner to verify the figures reported or amounts paid, as the case may be. In
the event that the Auditor determines that either (x) the actual amount invested
by the Audited Party is less than ninety percent (90%) of the amount reported by
the Audited Party, or (y) the amount paid by the Audited Party is less than
ninety percent (90%) of the actual amount owed by the Audited Party, as the case
may be, then such difference, plus the fees of the Auditor, shall become
immediately due and payable by the Audited Party upon notice to the Audited
Party.
2.9 Restrictive Covenants.
(a) WNI recognizes that Rodale wishes to expose its users to the
breadth and depth of its content in many forms. Similarly, Rodale recognizes
that WNI relies on relationships with other WWW sites to drive traffic to its
site and that the new Site is one of many WWW sites that it will manage.
(b) Notwithstanding the foregoing, during the Term of this
Agreement each party agrees not to enter into a relationship with a third party
to create [*]
*Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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[*]. During the term hereof, both parties may amend the listing set forth in its
Exhibit with the prior written approval of the other party.
ARTICLE 3: REPRESENTATIONS AND WARRANTIES
3.1 By Each Party. Each party to this Agreement represents and warrants
to the other party that:
(i) such party has the full corporate right, power and
authority to enter into this Agreement and to perform the acts required of it
hereunder;
(ii) the execution of this Agreement by such party, and
the performance by such party of its obligations and duties hereunder, do not
and will not violate any agreement to which such party is a party or by which it
is otherwise bound;
(iii) when executed and delivered by such party, this
Agreement will constitute the legal, valid and binding obligation of such party,
enforceable against such party in accordance with its terms; and
(iv) such party acknowledges that the other party makes no
representations, warranties or agreements related to the subject matter hereof
that are not expressly provided for in this Agreement.
3.2 By WNI. In addition to the representations and warranties set forth
in Section 3.1 hereto, WNI represents and warrants to Rodale that the rights
granted under this Agreement to Rodale and the performance of WNI's obligations
under this Agreement will not knowingly infringe in any manner any U.S.
Intellectual Property right of any third party and that the Site will not
knowingly contain any information that is obscene, defamatory, libelous,
slanderous or that would otherwise result in any injury, damage or harm to any
person or that infringes any U.S. Intellectual Property rights of any third
party. WNI makes no representations or warranties that the content and its
supporting code will be compatible with any systems other than the systems being
utilized for the Site.
3.3 By Rodale. In addition to the representations and warranties set
forth in Section 3.1 hereto, Rodale represents and warrants to WNI that the
rights granted under this Agreement to WNI and the performance of Rodale's
obligations under this Agreement will not knowingly infringe in any manner any
U.S. Intellectual Property right of any third party and that the Site will not
knowingly contain any information that is obscene, defamatory, libelous,
slanderous or that would otherwise result in any injury, damage or harm to any
person or that infringes any U.S. Intellectual Property rights of any third
party.
3.4 No Additional Warranties. EXCEPT AS SET FORTH IN THIS AGREEMENT,
NEITHER PARTY MAKES ANY, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS ANY
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE PRODUCTS AND
SERVICES INCLUDING THE CONTENT AND SOFTWARE CONTEMPLATED BY THIS AGREEMENT,
INCLUDING ANY IMPLIED WARRANTY OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
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AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF
PERFORMANCE.
ARTICLE 4: INDEMNIFICATION; LIMITATION OF LIABILITY
4.1 Indemnification by WNI. WNI, at its own expense, will indemnify,
defend and hold harmless Rodale, and its employees, representatives and agents,
against any claim, suit, action, or other proceeding brought against Rodale, to
the extent that such claim, suit, action or other proceeding is based on or
arises from:
(i) a claim that the use of the Site in accordance
with this Agreement infringes any Intellectual Property right of any third
party, or any right of personality or publicity, is libelous or defamatory, or
otherwise results in injury or damage to any third party;
(ii) any misrepresentation or breach of representation
or warranty of WNI contained herein; or
(iii) any breach of any covenant or agreement to be
performed by WNI hereunder.
WNI will pay any and all costs, damages, and expenses, including, but not
limited to, reasonable attorneys' fees and costs awarded against or otherwise
incurred by or in connection with or arising from any such claim, suit, action
or proceeding attributable to any such claim.
4.2 Indemnification by Rodale. Rodale, at its own expense, will
indemnify, defend and hold harmless WNI, and its employees, representatives and
agents, against any claim, suit, action, or other proceeding brought against
WNI, to the extent that such claim, suit, action or other proceeding is based on
or arises from:
(i) a claim that the use of the Site in accordance
with this Agreement infringes any Intellectual Property right of any third
party, or any right of personality or publicity, is libelous or defamatory, or
otherwise results in injury or damage to any third party;
(ii) any misrepresentation or breach of representation
or warranty of Rodale contained herein; or
(iii) any breach of any covenant or agreement to be
performed by Rodale hereunder.
Rodale will pay any and all costs, damages, and expenses, including, but not
limited to, reasonable attorneys' fees and costs awarded against or otherwise
incurred by WNI in connection with or arising from any such claim, suit, action
or proceeding attributable to any such claim.
4.3 Limitation of Liability. EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER
PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY
DAMAGES, EVEN IF THAT PARTY HAS BEEN ADVISED
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OF THE POSSIBILITY OF SUCH DAMAGES, ARISING FROM ANY PROVISION OF THIS
AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS
OR LOST BUSINESS. IN NO EVENT SHALL EITHER PARTY'S LIABILITY UNDER THIS
AGREEMENT EXCEED THE COSTS EXPENDED BY THE OTHER PARTY HEREUNDER.
ARTICLE 5: TERM AND TERMINATION
5.1 Initial Term and Renewals. This Agreement will become effective as
of the Effective Date and shall, unless sooner terminated as provided below or
as otherwise agreed, remain effective for an initial term of [*] from the
launch date of the Site (the "Initial Term"). After the Initial Term, this
Agreement shall automatically be extended for successive additional one-year
periods (each an "Extension Term"), unless otherwise terminated by either party
by giving written notice to the other party not less than thirty (30) days prior
to the end of the initial Term or any Extension Term then in effect. As used
herein, the "Term" shall mean the Initial Term and any Extension Term(s).
5.2 Early Termination. Notwithstanding the foregoing, this Agreement
may be terminated at any time by either party, effective immediately upon
notice, if the other party: (i) becomes insolvent; (ii) files a petition in
bankruptcy; (iii) makes an assignment for the benefit of its creditors; or (iv)
breaches its obligations of confidentiality set forth in Article 6 below. Either
party may terminate this Agreement, effective upon thirty (30) days notice, in
the event that the other party breaches any of its responsibilities or
obligations under this Agreement in any material respect (including, without
limitation, failure to pay) which breach is not remedied within thirty (30) days
following written notice to such party.
5.3 Change in Control of WNI. In the event of a change of control of
WNI. which results in a controlling interest of WNI being owned by [*]
listed in Exhibit F, (a controlling interest being defined as an ownership
interest which permits the election of that number of directors of WNI required
to approve of a sale, merger, dissolution and liquidation of WNI under WNI's
Articles of Incorporation and Bylaws), Rodale may: (i) immediately withdraw the
use of any Rodale wholly-owned trademark, including Prevention(R)
(notwithstanding that such withdrawal may require the Site Name to be changed);
and (ii) Rodale shall have the right to terminate the Agreement upon [*] written
notice. During the term hereof, both parties may amend the listing set forth in
this Exhibit with the prior written approval of the other party.
5.4 Effect of Termination. Any termination pursuant to this Article 5
shall be without any liability or obligation of the terminating party, other
than with respect to any breach of obligations under this Agreement prior to
termination. The provisions in Articles 3, 4, 6, 7 and 8 shall survive any
termination or expiration of this Agreement.
ARTICLE 6: CONFIDENTIALITY
Rodale and WNI hereby acknowledge that each of them may have access to
confidential and proprietary information which relates to the other party's
technology, marketing and business (the "Confidential Information"). Each party
agrees to preserve and protect the
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
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confidentiality of the Confidential Information and not to disclose any
applicable Confidential Information to any third party without the prior written
consent of the other party; provided, however, that any party hereto may
disclose to any other party any information which receiving party can prove is:
(i) already publicly known; (ii) discovered or created by the receiving party
without reference to the Confidential Information; or (iii) otherwise learned
through legitimate means other than from a third party under confidentiality
obligations. Moreover, any party hereto may disclose any Confidential
Information hereunder to such party's agents, attorneys and other
representatives or any court or competent jurisdiction or any other party
empowered hereunder as reasonably required to resolve any dispute between the
parties hereto.
ARTICLE 7: OWNERSHIP
7.1 Site Name.
(a) As between the parties, Rodale will retain all rights to the
names and trademarks "Prevention(R)" and "Prevention(R)'s Bodysense" and
existing department names in the Prevention(R) Magazine and WNI will retain all
rights to the names and trademark "Women's Wire" and "Beatrice's Web Guide" and
existing department names in "Women's Wire" website and "Beatrice's Web Guide"
website.
(b) If the parties chose a different name or names other than
"Prevention(R)" or "Prevention(R)'s Bodysense" for the Site Name, such name or
names and all rights including trademark in and to such name or names will be
jointly owned (50%/50%) by each party.
7.2 Site Content.
(a) The parties shall jointly own (50%/50%) all rights including
copyright, in and to the original works created hereunder for the Site including
derivative works based on existing works owned by either party.
(b) The parties shall jointly own (50%/50%) all rights including
copyright in and to the compilation prepared by WNI comprised of the works
including code set forth in (a) above. Such jointly owned property is
hereinafter referred to as Site Content.
(c) WNI shall have the responsibility for registration of the
copyright and trademark of the Site Content and Site Name in the United States
Copyright Office and Trademark Office and in such other jurisdictions as the
parties mutually agree. All such registrations shall be in the names of both
parties.
7.3 Right of First Refusal and Rights Upon Termination.
(a) At any time, one party may make an offer to purchase all of
the other party's ownership interest in the Site Content (and if the Site Name
is jointly owned, the Site Name) from the other party. The parties agree that
neither party can license, sell or otherwise transfer any or all rights in the
Site, Site Content and/or Site Name to a third party without the prior written
consent from the other. Each party has the right of first refusal to purchase
all or part of the ownership interest in the Site Content of the other party (at
the same price and on the terms
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and conditions) if the other party has received an offer to license or sell it
or them to a third party.
(b) If this Agreement is terminated by one party for any reason,
the following will occur:
(i) The rights to the Site Content created up to the
date of termination will continue to be co-owned by Rodale and WNI. Both parties
may continue to use the Site Content without the right to license or sell to
third parties unless one party buys the rights ownership interest of the other
party. Each party using the Site Content must pay to the other a royalty of 50%
of net revenues it receives from such use. Each party commits that it will
evaluate a new royalty rate on a case-by-case basis.
(ii) If the Site Name is Prevention(R) and Rodale chooses
to allow continued use of the name, WNI shall pay Rodale a royalty of [*] of net
revenues for the usage of the Site Name as long as the name is used.
(iii) If the party that terminates the contract or
breaches the contract resulting in a termination of the contract also owns all
rights to the Site Name, that party will be prevented from using that URL for a
period of one year unless permission is granted from the other party.
(iv) If the Site Name (and all related names) is jointly
owned by Rodale and Wire Networks and one party terminates the contract or
breaches the contract, resulting in termination of the contract, the second
party will have the exclusive right to use the jointly owned names and must pay
the first party a royalty of [*] of net revenues when using such names.
If the second party does not exercise its right to
exclusive use of the name(s), then the first party will have the right to use
the name(s) and must pay the second party [*].
At any time either party may purchase the exclusive
right to (the name from the other party upon terms and conditions to be
negotiated between the parties.
ARTICLE 8: MISCELLANEOUS
8.1 Public Announcement. The parties hereto will issue a joint press
release regarding this Agreement at a time that is mutually agreed to by the
parties. No party will make any separate public announcement regarding this
Agreement or any of the contents contained herein without the prior consent of
the other party.
8.2 Assignment. This Agreement will bind and inure to the benefit of
each party's permitted successors and assigns. Either party may assign this
Agreement to a wholly owned subsidiary provided that the Assignor shall remain
responsible for its obligations hereunder, otherwise, neither party may assign
this Agreement, in whole or in part, without the other party's prior written
consent which shall not unreasonably be withheld.
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
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8.3 Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York, without reference to
conflicts of laws rules, and without regard to its location of execution or
performance.
8.4 Severability. If any provision of this Agreement is found invalid
or unenforceable, that provision will be enforced to the maximum extent
permissible, and the other provisions of this Agreement will remain in force.
8.5 Notices. All notices, requests and other communications called for
by this Agreement shall be deemed to have given upon receipt if made by mail,
courier or personal delivery, or immediately if made by telecopy or electronic
mail (confirmed by concurrent written notice sent first-class U.S. mail, postage
prepaid), if to Rodale at ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
Attention ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (FAX (▇▇▇) ▇▇▇-▇▇▇▇; E-mail: bnewton 1
@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇) and if to WNI at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ Pack, Vice President (FAX (▇▇▇) ▇▇▇-▇▇▇▇;
E-mail: ▇▇▇▇▇@▇▇▇▇▇.▇▇▇), or to such other addresses as either party shall
specify to the other. Notice by any other means shall be deemed made when
actually received by the party to which notice is provided.
8.6 Relationship of Parties. Neither this Agreement, nor any terms and
conditions contained herein may be construed as creating or constituting a
partnership, joint venture or agency relationship between the parties. Neither
party will have the power to bind the other or incur obligations on the other's
behalf without the other's prior written consent.
8.7 Waiver. No failure of either party to exercise or enforce any of its
rights under this Agreement will act as a waiver of such rights.
8.8 Entire Agreement. This Agreement and its exhibits are the complete
and exclusive agreement between the parties with respect to the subject matter
hereof, superseding and replacing any and all prior agreements, communications,
and understandings, 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.
8.9 Expenses. Each party shall bear its own expenses, including legal
fees, incurred in the negotiation and documentation of this Agreement.
8.10 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute a single instrument.
Execution and delivery of this Agreement may be evidenced by facsimile
transmission.
8.11 Force Majeure. Neither party shall be liable for any failure or
delay in its performance under this Agreement due to causes including, but not
limited to, acts of God, acts of civil or military authority, fires, floods,
earthquakes, riots, wars, sabotage, or governmental actions, which are beyond
its reasonable control; provided, however, that such affected party take
reasonable efforts to mitigate the effects of such causes.
12.
13
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized representatives as of the date first written
above.
RODALE WIRE NETWORKS, INC.
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------- ------------------------
Title: VP, Director of Publishing Title: CEO & President
------------------------------- ----------------------
13.
14
EXHIBIT A
PREVENTION MAGAZINE ADVERTISING STANDARDS
Advertising will not be accepted:
1. That promotes a product deemed defective or unsafe by the FDA.
2. That promotes a product, therapy, or service whose possible harm to the
customer outweighs its benefits.
3. That promotes a health product for which there is no good evidence of
benefit, and no good reason to believe there is a benefit.
If there is any question about whether an advertiser is acceptable or not, WNI
will contact ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ at Rodale at (▇▇▇) ▇▇▇-▇▇▇▇ or ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
Advertising Business Manager. at (▇▇▇) ▇▇▇-▇▇▇▇.
14.
15
EXHIBIT B
WNI BUDGET
16
HEALTHY _________________
REVENUE AND EXPENSE STATEMENT
Revenue [*]
Less Commissions
NET REVENUE
EDITORIAL & PRODUCTION:
Editorial Expense
Production Expense
Design Expense
Product Development Expense
Content Expense
TOTAL EDITORIAL & PRODUCTION
OPERATIONS & TECHNICAL:
Operations Expense
Tech Ops Expense
TOTAL OPERATIONS & TECHNICAL
MARKETING EXPENSE:
Marketing Staff
Advertising
Promotional
Other
TOTAL MARKETING
Sales Expense
TOTAL SALES EXPENSE
Legal/Other Expense
TOTAL LEGAL/OTHER EXPENSE
TOTAL DEPT EXPENSE
OVERHEAD ALLOCATION (30%)
TOTAL EXPENSE
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
17
EXHIBIT B
WIRE NETWORKS' PREVENTION COST PROJECTIONS
-----------------------------------------------------------------------------------------------------------------------
Overhead: 30%
------- -------- -------- -------- ----------
1Q97 2Q97 3Q97 4Q97 TOTAL
------- -------- -------- -------- ----------
Costs:
Editorial & Design
-------------------------------------------------- [*]
Producer
Editorial Staff
Illustration/Design
HTML Design & Production
Programming (JAVA, Perl, CGI)
Travel
Content/Writing
Other
Site Hosting & Software
--------------------------------------------------
Server Fees & Maintenance
Software Licenses, Reporting/Audit
Technical Staff
Sales and Marketing
--------------------------------------------------
Sales Staff
Travel & Entertainment
Public Relations
Sales Materials/Collateral
Marketing Staff
Market Research
Creative/Production
Site Promotion
Banner Advertising
Sub-Total
Overhead
TOTAL COSTS
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
18
EXHIBIT C
RODALE BUDGET
19
Exhibit C
RODALE PRESS PREVENTION COST PROJECTIONS
-----------------------------------------------------------------------------------------------------------------------
Overhead: 30%
------ ------- ------- ------- --------
1Q97 2Q97 3Q97 4Q97 TOTAL
------ ------- ------- ------- --------
EDITORIAL [*]
Researcher
ADVERTISING
Cost of Page
Page in Specials
PR
Sub-Total
Overhead
TOTAL
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
20
EXHIBIT D
RESTRICTIONS ON RODALE THIRD PARTY RELATIONSHIPS
[*]
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
21
EXHIBIT E
RESTRICTION ON WNI THIRD PARTY RELATIONSHIPS
[*]
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
22
EXHIBIT F
WNI CHANGE [N CONTROL - RESTRICTED ENTITLES
[*]
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.