* Confidential treatment has been requested for certain portions of this
exhibit. Omitted portions have been filed separately with the Commission.
This ("Agreement") is entered into as
of February 28, 1998 (the "Effective Date") by and between ▇▇▇▇▇▇.▇▇▇, Inc., a
Delaware corporation ("▇▇▇▇▇▇.▇▇▇") with offices at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ 98 1 01 and iVillage, Inc., a Delaware corporation,
("iVillage") with offices at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
▇▇▇▇▇▇.▇▇▇ and iVillage may be referred to generically as a "Party", or
collectively as "Parties".
WHEREAS, iVillage operates a site on the World Wide Web and America
OnLine, which contains channels including but not limited to Parent Soup,
ParentsPlace, Better Health and Armchair Millionaire as well as career, fitness
& beauty, food, relationships and work from home channels (collectively the
"Network").
WHEREAS, ▇▇▇▇▇▇.▇▇▇ seeks to drive Network users ("Users") to its World
Wide Web site (the "▇▇▇▇▇▇.▇▇▇ Web site"), to acquire repeat customers, to
increase book purchases focusing on lifestyle categories such as parenting,
health, finance and career, and to reinforce the ▇▇▇▇▇▇.▇▇▇ brand as the
"Earth's Biggest Bookstore".
WHEREAS, iVillage and ▇▇▇▇▇▇.▇▇▇ now desire to enter into this
Agreement whereby ▇▇▇▇▇▇.▇▇▇ shall be an exclusive sponsor and retailer
throughout the Network (the "Program") subject to the terms and conditions
stated herein.
Section 1. Exclusivity
For the term of this Agreement and any subsequent renewal thereto,
iVillage agrees that ▇▇▇▇▇▇.▇▇▇ shall be the exclusive book sponsor and
retailer, with respect to entities whose primary business is that of a book
retailer, throughout the Network and that no advertising, links, promotional
information or marketing materials for or relating to any of the entities listed
in Exhibit A hereto or any other individual, entity or web site which derives
more than ten percent (10%) of its annual gross revenue from the sales of books
or magazines (whether in printed, audio, electronic or other format) or is
primarily functioning or primarily known as a seller of books or magazines,
shall be placed or displayed on the Network. In addition, iVillage will not (a)
sell, or permit any other person or entity to sell, any books or magazines on
the Network; or (b) use, or permit any other person or entity to use, all or any
part of iVillage's customer information database to sell any books or magazines;
provided, that such books or magazines are available from ▇▇▇▇▇▇.▇▇▇. Nothing
herein shall (a) prevent an author or subject matter expert from discussing or
promoting the sale of a particular book or magazine on the Network, provided
that such author or expert does not recommend or promote the purchase of -such
book or magazine from a specific party other than ▇▇▇▇▇▇.▇▇▇; or (b) prevent any
other sponsor from selling books or magazines on its own web site, provided that
the sale of such books or magazines is not promoted or referenced on the
Network. In the event that iVillage produces or publishes any private label
books, iVillage will offer ▇▇▇▇▇▇.▇▇▇ the first right of refusal as to the
ability to sell such books before such opportunity is offered to any third
party. ▇▇▇▇▇▇.▇▇▇'s sponsorship and exclusivity with regard to products other
than books or magazines shall be determined on a case by case basis, whereby
▇▇▇▇▇▇.▇▇▇ shall provide
iVillage with written notice of any other products it seeks to include within
the scope of this Agreement, and iVillage shall have sole discretion as to
whether such other product(s) shall be included.
Section 2. Term and Termination
2.1 Term
The initial term of this Agreement (the "Initial Term") shall commence
on the Effective Date and shall continue for a period of twelve (12) months from
the date that all of the Promotional Placements and Opportunities described in
Section 3 below are available on the Network (the "Implementation Date") unless
terminated earlier or extended as provided herein. Promptly after the
Implementation Date has occurred, the parties shall in good faith agree upon and
document in writing such Implementation Date. Upon mutual agreement of the
parties within no less than sixty (60) days prior to the expiration date of the
Initial Term, the Agreement may be renewed for an additional twelve (12) month
term (the "Renewal Term"). The Parties agree to discuss, in good faith, prior to
the end of the Initial Term, the status of the relationship of the Parties and
the terms of the Agreement. Notwithstanding the foregoing, if the parties agree
to renew the Agreement, the terms of the Agreement, including without limitation
the compensation terms stated in Section 7 below, shall remain in full force and
effect without amendment. However, if prior to sixty (60) but no more than
ninety (90) days before the expiration of the Initial Term, iVillage receives a
bona fide offer from a third party to become the exclusive book sponsor and
retailer throughout the Network on financial terms more advantageous to iVillage
than those stated in Section 7 herein and provides ▇▇▇▇▇▇.▇▇▇ with written
notice and a copy of such offer, ▇▇▇▇▇▇.▇▇▇ must notify iVillage in writing
within thirty (30) days of receiving such notice whether it is willing to amend
the Agreement to match the financial terms offered by such third party for the
Renewal Term. If ▇▇▇▇▇▇.▇▇▇ notifies iVillage that it is willing to renew the
Agreement upon the amended financial terms, then those terms shall be applied to
the Renewal Term, notwithstanding anything in this Agreement to the contrary. If
▇▇▇▇▇▇.▇▇▇ does not notify iVillage that it is willing to amend the financial
terms of the Agreement for the Renewal Term within thirty (30) days of receiving
such notice, then iVillage shall have fifteen (15) days thereafter to give
▇▇▇▇▇▇.▇▇▇ written notice to terminate this Agreement at the end of the Initial
Term and may then enter into an Agreement with such third party on the amended
terms offered to ▇▇▇▇▇▇.▇▇▇.
2.2 Termination
In the event of a material breach by either party of any term of this
Agreement, the nonbreaching party may terminate this Agreement by written notice
to the breaching party if the breaching party fails to cure such material breach
within thirty (30) days of receipt of written notice thereof. Either party may
terminate this Agreement effective upon written notice stating its intention to
terminate in the event the other party (a) ceases to function as a going concern
or to conduct operations in the normal course of business, or (b) 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 sixty (60) days of its
filing.
2
2.3 Survival
Sections 9, 11, 12, 13, 15 and 16 hereof shall survive any termination
of this Agreement.
Section 3. Promotion
Throughout the term of this Agreement, and any extensions or renewals
thereof, iVillage will provide links, advertisements and other promotional
placements and opportunities to promote ▇▇▇▇▇▇.▇▇▇ and its sponsorship of the
Network (collectively the "Promotional Placements and Opportunities") in a
manner to be agreed upon by the parties. The Promotional Placements and
Opportunities provided by iVillage will at a minimum be no less prominent or
frequent than those provided to any other Network sponsor or advertiser. 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 Network no later
than May 31 and shall include, without limitation, the following promotions:
3.1 Book Club Sponsorship
3.1.1 iVillage shall create and make available a Network-wide
Book Club ("Book Club") which shall be sponsored exclusively by
▇▇▇▇▇▇.▇▇▇ and accessible from the ▇▇▇▇▇▇▇▇.▇▇▇ home page located at
the URL: ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇. Members of the Network will be
invited to become Book Club Members ("Book Club Members") and those who
join the Book Club will be eligible for special promotional benefits
including but not limited to book-related gifts and discounts from
iVillage and ▇▇▇▇▇▇.▇▇▇. Book Club Members will also have the
opportunity to submit questions to featured book authors. ▇▇▇▇▇▇.▇▇▇
will cooperate with iVillage in the implementation of these and other
special promotional premiums in connection with the Book Club, but will
have no financial obligation to iVillage for such promotions. Subject
to availability and budget, the Parties agree to work together to
produce and promote co-branded premiums.
3.1.2 iVillage, its editors and producers, shall select book
titles from the ▇▇▇▇▇▇▇.▇▇▇ library which shall be prominently featured
in the Book Club throughout the Network ("Selected Titles") and shall
provide a direct link to the ▇▇▇▇▇▇.▇▇▇ Web Site for the purchase of
such Selected Titles. Selected Titles may be works of fiction or
non-fiction and it is anticipated that selection of Selected Titles may
also be made by Book Club Members. iVillage shall select and feature
those titles which concern subjects and/or issues that appeal to the
Users and/or which have been published within 3 months of the date the
title is featured and/or would appear on the Network for the first time
anywhere online.
3.1.3 In connection with Selected Titles, iVillage shall post
excerpts from featured authors and shall host message boards and chats
to be moderated by a Book Club leader and to be accessed by Book Club
Members.
3.1.4 iVillage shall also include a "Click here to buy from
▇▇▇▇▇▇.▇▇▇" icon to be placed throughout the Book Club areas of the
Network which shall link Users to the ▇▇▇▇▇▇.▇▇▇ Web site.
3
3.2 Channel Book Lists
Throughout the channels of the Network, iVillage shall promote reading
lists ("Reading Lists"), on a rotating basis, of topic-specific titles which are
appropriate for those given subchannels of the Network channel on which the
Reading Lists are featured. The "Click here to buy from ▇▇▇▇▇▇.▇▇▇" icon will
also appear in connection with the Reading Lists.
3.3 Search Engine Integration
iVillage shall fully integrate the ▇▇▇▇▇▇.▇▇▇ database of available
titles into an iVillage search database, resulting in identical queries being
carried to both the iVillage search database and that of ▇▇▇▇▇▇.▇▇▇. When a User
accesses the iVillage search engine, a "Click here to find Related Books" icon
will appear as part of the search results, allowing a User to view a list of
related titles for purchase. In addition, iVillage will reserve the key words
listed in Exhibit B exclusively for ▇▇▇▇▇▇.▇▇▇ and will display an ▇▇▇▇▇▇.▇▇▇
banner (in addition to the ▇▇▇▇▇▇.▇▇▇ "Click here to find Related Books" icon)
whenever one of these key words is used in a search query of the iVillage site.
3.4 Shopping
iVillage shall prominently feature ▇▇▇▇▇▇.▇▇▇, its products and
services, in its Shopping Channel, located at the URL
http:▇▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇▇. During the term of this Agreement,
▇▇▇▇▇▇.▇▇▇ shall be listed in the Shopping Channel with a branded button which
shall link Users directly to the ▇▇▇▇▇▇.▇▇▇ Web site.
3.5 Newsletter
▇▇▇▇▇▇.▇▇▇ will have the opportunity to include a promotional message
of its choosing, subject to iVillage's reasonable approval, in at least one
email newsletter per month (twelve (12) total newsletters per year) that
iVillage will send to its email subscribers.
3.6 Banner Advertising
During the term of this Agreement, iVillage agrees to provide
advertising banners that will run across the tops of the home pages of various
channels within the Network. The advertising banners will permit recipients to
navigate directly to a page on the ▇▇▇▇▇▇.▇▇▇ Web Site selected by ▇▇▇▇▇▇.▇▇▇.
3.7 Right of First Presentation and Promotion
iVillage will present to ▇▇▇▇▇▇.▇▇▇ an equal opportunity (prior to
presenting the opportunity to any other sponsor or other third party) to
participate in any new advertising, promotional or merchandising placement or
activity on any Network service or other service that is wholly or partially
owned by iVillage and/or any of its corporate parents or wholly or partially
owned subsidiaries. Any such ▇▇▇▇▇▇.▇▇▇ placements will come at no additional
fixed costs to ▇▇▇▇▇▇.▇▇▇, but instead will earn referral fees in accordance
with the schedule specified in Section 7 of this Agreement.
4
iVillage will make a good faith effort to include ▇▇▇▇▇▇.▇▇▇ whenever
reasonably possible in its marketing campaigns (including without limitation any
TV, radio, print, and online ads) and will work with ▇▇▇▇▇▇.▇▇▇ to determine the
method and content to be used in such marketing campaigns. iVillage will feature
▇▇▇▇▇▇.▇▇▇ at least as prominently as any other sponsor in such marketing
campaigns. Possible methods include selection and use of ▇▇▇▇▇▇.▇▇▇ screenshots
and/or logo where the iVillage bookclub and ▇▇▇▇▇▇.▇▇▇ logo are visible,
voice-over mentions of iVillage bookclub in association with Amazon-com,
voice-over mentions of iVillage channel book lists in association with
▇▇▇▇▇▇.▇▇▇, or voice-over mentions of the ▇▇▇▇▇▇.▇▇▇ / iVillage partnership when
discussing iVillage features. Any such promotional placement featuring the
▇▇▇▇▇▇.▇▇▇ brand will come at no additional cost to ▇▇▇▇▇▇.▇▇▇.
3.8 ▇▇▇▇▇▇.▇▇▇ Policies
iVillage acknowledges that Users who purchase books through the Program
will be deemed to be customers of ▇▇▇▇▇▇.▇▇▇ and subject to all ▇▇▇▇▇▇.▇▇▇
rules, policies and operating procedures concerning customer orders, customer
service and books sales. ▇▇▇▇▇▇.▇▇▇ may change its policies and operating
procedures at any time. In addition, ▇▇▇▇▇▇.▇▇▇ will provide commercially
reasonable efforts to present accurate information with respect to any given
book or ▇▇▇▇▇▇.▇▇▇ program.
Section 4. Impression Guarantees
4.1 In connection with each of the promotions listed below (as
described in further detail in Section 3 above), iVillage guarantees to provide
at least the following number of Impressions (as defined below) to ▇▇▇▇▇▇.▇▇▇
during each of the Initial Term and the Renewal Term, if any (the "Impression
Guarantees"):
------------------------------------------ ---------------------------------
PROMOTION NO. OF IMPRESSIONS
------------------------------------------ ---------------------------------
Book Club [*]
------------------------------------------ ---------------------------------
Search Engine Integration [*]
------------------------------------------ ---------------------------------
Shopping [*]
------------------------------------------ ---------------------------------
Banner Advertising [*]
------------------------------------------ ---------------------------------
Newsletter
[*]
------------------------------------------ ---------------------------------
4.2 In the event that iVillage fails to meet the Impression Guarantees,
then iVillage shall be required to either, at ▇▇▇▇▇▇.▇▇▇'s option: (a) continue
to provide the Promotional Placements and Opportunities until the guaranteed
number of Impressions have been met, in which case the applicable term of this
Agreement shall be extended, at no additional cost to ▇▇▇▇▇▇.▇▇▇, until such
guarantees are met; or (b) cooperate in good faith with ▇▇▇▇▇▇.▇▇▇ to
5
develop and implement such other advertising or promotional placements as are
acceptable to ▇▇▇▇▇▇.▇▇▇ to "make good" the shortfall. In addition, if iVillage
fails to meet the Impression Guarantees, ▇▇▇▇▇▇.▇▇▇ may at any time thereafter
terminate this Agreement upon thirty (30) days written notice.
4.3 iVillage shall provide to ▇▇▇▇▇▇.▇▇▇ on a quarterly basis, within
thirty (30) days following the end of each calendar quarter, a written report
signed by an authorized representative of iVillage showing in reasonable detail
the number of Impressions delivered during such quarter. iVillage shall keep and
retain, during the term of this Agreement and for a period of three years
thereafter, books and records sufficient to demonstrate the number of
Impressions delivered, and ▇▇▇▇▇▇.▇▇▇ shall have the right to have such books
and records examined by an independent third party acceptable to iVillage as are
necessary to verify the number of Impressions reported to ▇▇▇▇▇▇.▇▇▇. ▇▇▇▇▇▇.▇▇▇
is entitled to conduct such an audit only during normal business hours and no
more frequently than once per calendar year. ▇▇▇▇▇▇.▇▇▇ agrees to provide
iVillage with at least one (1) week advance notice of any audit. If the audit
reveals that the number of Impressions was misreported by more that ten percent
(10%), iVillage will pay for all costs reasonably incurred by ▇▇▇▇▇▇.▇▇▇ in
connection with the audit.
4.4 As used herein, the term "Impressions" shall mean a User's viewing
of a web page or equivalent containing one or more promotional hypertext links
to the ▇▇▇▇▇▇.▇▇▇ Web Site of the nature specified in the applicable portion of
Section 3.
Section 5. Legal Compliance
Both Parties shall operate their respective Web sites and services in
compliance with all applicable laws and regulations and each will be solely
responsible for obtaining all required governmental authorizations necessary for
the full performance of its services as provided for under this Agreement.
Section 6. Maintenance
Each Party shall monitor and periodically test the general availability
and operation of its Web site.
Section 7. Compensation
7.1 Upfront Fees
7.1.1 ▇▇▇▇▇▇.▇▇▇ agrees to pay iVillage, upon the signing of
this Agreement, an upfront, nonrefundable, non-recoupable setup fee in
the amount of [*].
7.1.2 In the event that this Agreement is renewed, ▇▇▇▇▇▇.▇▇▇
agrees to pay iVillage, within thirty (30) days after the commencement
of the Renewal Term, an upfront, nonrefundable, non-recoupable renewal
fee in the amount of [*].
6
7.2 Referral Fees
7.2.1 In addition to the above fee, ▇▇▇▇▇▇.▇▇▇ shall pay to
iVillage, on a quarterly basis-and payable within thirty (30) days
after the end of each quarter, referral fees based upon a percentage of
the Sale Price of Qualifying Books actually purchased from ▇▇▇▇▇▇.▇▇▇
(the "Referral Fees'). ▇▇▇▇▇▇.▇▇▇ shall receive a credit for any
Referral Fees paid on Qualifying Books which are later returned. The
term "Sale Price" as used herein shall mean the sale price (i.e. the
price listed under the "Our Price" heading) for such book listed in the
▇▇▇▇▇▇.▇▇▇ catalog in effect at the time of order and does not include
costs for shipping, handling, gift-wrapping, and taxes. The term
"Qualifying Books" as used herein shall mean all in-print books listed
in ▇▇▇▇▇▇.▇▇▇'s catalogue at the time of order that are purchased by
Users as a direct result of following a hypertext link from the Network
to the ▇▇▇▇▇▇.▇▇▇ Web Site. Notwithstanding anything herein to the
contrary, sales of books listed in our catalog or in search results a.%
"out of print" or "hard to find" are not eligible for any Referral
Fees.
7.2.2 iVillage will earn referral fees according to the
following fee schedule:
(a) [*]% of the Sales Price on sales of each
Individually Linked Book (as defined below)
that, on the date of order, is listed in the
▇▇▇▇▇▇.▇▇▇ catalog at [*]%-[*]% off the
publishers list price;
(b) [*]% of the Sales Price on sales of each
Individually Linked Book that, on the date
of order, is listed in the ▇▇▇▇▇▇.▇▇▇
catalog at the publisher's list price (such
as special order books);
(c) [*]% of the Sales Price on sales of
Individually Linked Book that, on the date
of order, is listed in the ▇▇▇▇▇▇.▇▇▇
catalog at more than [*]% off the publishers
list price;
(d) [*]% of the Sales Price on sales of
Qualifying Books other than Individually
Linked Books; and
(e) the Referral Fees for Individually Linked
Books as set forth in Sections 7.2.2 (a),
(b) and (c) shall be increased to [*]% of
the fees specified therein for any
Individually Linked Books shipped prior to
June 30, 1998.
The term "Individually Linked Books" as used herein shall mean books which are
specifically featured by title in a Promotional Placement or Opportunity on the
Network (as described in Section 3 above) and purchased by Users as a direct
result of following a link on the Network to the ▇▇▇▇▇▇▇.▇▇▇ Web Site that
specifically identifies the title of such book.
7.3 Referral Fee Guarantee
7.3.1 Initial Term
Notwithstanding the foregoing Section 7.2, if during the
course of the Initial Term of this Agreement iVillage earns less than
[*] in Referral
7
Fees (the "Target Referral Fee Amount"), ▇▇▇▇▇▇.▇▇▇ shall include, in
the final quarterly Referral Fee payment for Referral Fees earned
during the Initial Term, that amount which causes iVillage's total
Referral Fees for the Initial Term to equal not less than the Target
Referral Fee Amount. Any amount earned by iVillage during the Initial
Term in excess of the Target Referral Fee Amount shall be due and owing
to iVillage in accordance with the above-mentioned quarterly payment
schedule.
7.3.2 Renewal Term
Notwithstanding the foregoing Section 7.2, if during the
course of the Renewal Term of this Agreement, iVillage earns less than
[*] in Referral Fees (the "Renewal Target Referral Fee Amount"),
▇▇▇▇▇▇.▇▇▇ shall include, in the final quarterly Referral Fee payment
for Referral Fees earned during the Renewal Term, that amount which
causes iVillage's total Referral Fee for the Renewal Term to equal not
less than the Renewal Target Referral Fee Amount. Any amount earned by
iVillage during the Renewal Term in excess of the Renewal Target
Referral Fee Amount shall be due and owing to iVillage in accordance
with the abovementioned quarterly payment schedule.
Section 8. Reports and Audit
▇▇▇▇▇▇.▇▇▇ shall track sales from iVillage through a uniform resource
locator and shall provide iVillage with monthly reports in a form satisfactory
to iVillage. iVillage shall have the right to have examined by an independent
certified public accounting fin-n acceptable to ▇▇▇▇▇▇.▇▇▇, such of ▇▇▇▇▇▇.▇▇▇'s
books and records as are necessary to verify the accuracy of payments made to
iVillage pursuant to this Agreement. iVillage is entitled to conduct such an
audit only during normal business hours and no more frequently than once per
calendar year. iVillage agrees to provide ▇▇▇▇▇▇.▇▇▇ with at least one week
advance notice of any audit. The audit will be limited to revenue generated
pursuant to this Agreement and the calculation of payments due to iVillage under
this Agreement. If the audit reveals that ▇▇▇▇▇▇.▇▇▇ has paid iVillage less than
the sum to which iVillage is entitled, ▇▇▇▇▇▇.▇▇▇ agrees to pay iVillage the
additional sums due. If such sums exceed [*] of the total monies paid to
iVillage under the Agreement, ▇▇▇▇▇▇.▇▇▇ will pay for all costs reasonably
incurred by iVillage in connection with the audit.
Section 9. Representations and Warranties; Limitation of liability
9.1 Each party hereby represents and warrants that: (a) it is a
corporation duly organized and validly existing and in good standing under the
laws of the state of its incorporation, (b) it has full power and authority to
enter into this Agreement and to perform its obligations hereunder; (c) it has
obtained all permits, licenses, and other governmental authorizations and
approvals required for its performance under this Agreement; and (d) the
services to be rendered by each party under this Agreement neither infringe nor
violate any patent, copyright, trade secret, trademark, or other proprietary
right of any third party.
9.2 ▇▇▇▇▇▇.▇▇▇ will remain solely responsible for the operation of the
▇▇▇▇▇▇.▇▇▇ Site, and iVillage will remain solely responsible for the operation
of the Network. Each Party (a) acknowledges that the ▇▇▇▇▇▇.▇▇▇ Web Site and the
Network may be subject to temporary
8
shutdowns due to causes beyond the operating Party's reasonable control, and (b)
subject to the specific terms of this Agreement, retains sole right and control
over the programming, content and conduct of transactions over its respective
site or service. EACH PARTY SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR
WARRANTY REGARDING (A) THE AMOUNT OF SALES THAT ▇▇▇▇▇▇.▇▇▇ MAY GENERATE DURING
THE TERM, AND (B) ANY ECONOMIC OR OTHER BENEFIT THAT THE OTHER PARTY MIGHT
OBTAIN THROUGH ITS PARTICIPATION IN THIS AGREEMENT.
9.3 NEITHER ▇▇▇▇▇▇.▇▇▇ NOR iVILLAGE WILL BE LIABLE TO THE OTHER FOR ANY
INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT
LIMITATION, LOST PROFITS OR LOST DATA) ARISING OUT OF THIS AGREEMENT. EACH
PARTY'S ENTIRE LIABILITY ARISING FROM THIS AGREEMENT (EXCEPT FOR LIABILITIES
ARISING UNDER SECTION 13 OR RESULTING FROM THE PARTY'S WILLFUL MISCONDUCT),
WHETHER IN CONTRACT OR TORT, WILL NOT EXCEED THE AMOUNTS TO BE PAID BY
▇▇▇▇▇▇▇.▇▇▇ UNDER SECTION 7.
Section 10. Fulfillment
▇▇▇▇▇▇.▇▇▇ shall be solely responsible for (a) fulfilling all orders
for its products and (b) calculating, collecting and paying all appropriate
taxes associated with payment processing. ▇▇▇▇▇▇.▇▇▇'s products offered through
the Network will be supported by the same warranty and return policy for such
products as offered through other ▇▇▇▇▇▇.▇▇▇ channels.
Section 11. Intellectual Property Rights
11.1 Subject to the license granted to iVillage under Section 11.3,
▇▇▇▇▇▇.▇▇▇ reserves all of its right, title and interest in its intellectual
property rights (e.g., patents, copyrights, trade secrets, trademarks and other
intellectual property rights). Subject to the license granted to ▇▇▇▇▇▇.▇▇▇
under Section 1 1.2, iVillage reserves all of its right, title and interest in
its intellectual property rights.
11.2 ▇▇▇▇▇▇.▇▇▇ hereby grants to iVillage, during the term of this
Agreement and any extensions or renewals thereof, a non-exclusive,
non-transferable, royalty-free license to establish hyperlinks between the
Party's Web Sites and to use ▇▇▇▇▇▇.▇▇▇'s trade names, logos, trademarks and
service marks (the "▇▇▇▇▇▇.▇▇▇ Marks") on the Network as is reasonably necessary
to establish and promote such hyperlinks and to otherwise perform its
obligations under this Agreement; provided, however, that any promotional
materials or usages containing any of the ▇▇▇▇▇▇.▇▇▇ Marks will be subject to
▇▇▇▇▇▇.▇▇▇'s prior written approval.
11.3 iVillage hereby grants to ▇▇▇▇▇▇.▇▇▇, during the term of this
Agreement and any extensions or renewals thereof, a non-exclusive,
nontransferable, royalty-free license to establish hyperlinks between the
Party's Web Sites and to use iVillage's trade names, logos, trademarks and
service marks (the "iVillage Marks") as is reasonably necessary to establish and
promote such hyperlinks and to otherwise perform its obligations under this
Agreement;
9
provided, however, that any promotional materials or usages containing any of
the iVillage Marks will be subject to iVillage's prior written approval.
11.4 Neither Party will modify, alter or obfuscate the other Party's
Marks or use the other Party's Marks in a manner that disparages the other Party
or its products or services, or portrays the other Party or its products or
services in a false, competitively adverse or poor light. Each Party will comply
with the other Party's requests as to the form of use of the other Party's Marks
and will avoid any action that diminishes the value of such Marks. Either
Party's unauthorized use of the other's Marks is strictly prohibited. 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.
Section 12. Confidentiality
Except as expressly set forth herein, iVillage and ▇▇▇▇▇▇.▇▇▇ shall
maintain in confidence the terms of this Agreement. It is expected that pursuant
to discussions to date and to this Agreement, the Parties may disclose to one
another certain information, as defined herein, which is considered by the
disclosing Party to be proprietary or confidential information (the
"Confidential Information"). Confidential Information is defined as any
information, communication or data, in any form, including, but not limited to
oral, written, graphic or electromagnetic forms, models or samples, which the
disclosing party identifies as confidential or which or is of such a nature that
the receiving party should reasonably understand that the disclosing party
desires to protect such information, communication or data against unrestricted
disclosure or use, including without limitation, business information, financial
data and marketing data. All Confidential Information shall remain the sole
property of the disclosing party and its confidentiality shall be maintained and
protected by the receiving party with the same degree of care as the receiving
party uses for its own confidential and proprietary information. The receiving
party shall not use the Confidential Information of the other party except as
necessary to fulfill its obligations under this Agreement, nor shall it disclose
such Confidential Information to any third party without the prior written
consent of the disclosing party. The restrictions on the use or disclosure of
any Confidential Information shall not apply to any Confidential Information:
(i) after it has become generally available to the public without breach of this
Agreement by the receiving party; (ii) is rightfully in the receiving party's
possession prior to disclosure to it by the disclosing party; (iii) is
independently developed by the receiving party; (iv) is rightfully received by
the receiving party from a third party without a duty of confidentiality; or (v)
is disclosed under operation of law.
Section 13. Indemnification
13.1 ▇▇▇▇▇▇.▇▇▇ will defend and indemnify iVillage and its affiliates
(and their respective employees, directors and representatives) against any
claim or action brought by a third party, to the extent relating to (a) the
operation of the ▇▇▇▇▇▇.▇▇▇ Web Site, (b) any breach of its obligations under
this Agreement, or (c) the violation of third-party intellectual property rights
by any editorial content or other materials provided by ▇▇▇▇▇▇.▇▇▇ for display
on the Network. Subject to iVillage's compliance with the procedures described
in Section 13.3, ▇▇▇▇▇▇.▇▇▇ will pay any award against iVillage or its
affiliates (or their respective employees,
10
directors or representatives) and any costs and attorneys' fees reasonably
incurred by iVillage and its affiliates resulting from any such claim or action.
13.2 iVillage will defend and indemnify ▇▇▇▇▇▇.▇▇▇ and its affiliates
(and their respective employees, directors and representatives) against any
claim or action brought by a third party, to the extent relating to (a) the
operation of the Network, (b) any breach of its obligations under this
Agreement, or (c) the violation of third-party intellectual property rights by
any materials provided by iVillage for display on the ▇▇▇▇▇▇.▇▇▇ Web Site.
Subject to ▇▇▇▇▇▇.▇▇▇'s compliance with the procedures described in Section
13.3, iVillage will pay any award against ▇▇▇▇▇▇.▇▇▇ or its affiliates (or their
respective employees, directors or representatives) and any costs and attorneys'
fees reasonably incurred by ▇▇▇▇▇▇.▇▇▇ and its affiliates resulting from any
such claim or action.
13.3 " In connection with any claim or action described in this
Section, the Party seeking indemnification (a) will give the indemnifying Party
prompt written notice of the claim, (b) will cooperate with the indemnifying
Party (at the indemnifying Party's expense) in connection with the defense and
settlement of the claim, and (c) will permit the indemnifying Party to control
the defense and settlement of the claim, provided that the indemnifying Party
may not settle the claim without the indemnified Party's prior written consent
(which will not be unreasonably withheld). Further, the indemnified Party (at
its cost) may participate in the defense and settlement of the claim.
Section 14. Traffic Data
On a quarterly basis, iVillage will use its best efforts to provide
▇▇▇▇▇▇.▇▇▇ with mutually agreed data concerning search and browsing behavior on
the Network, to the extent such behavior reasonably could relate to the online
promotion or sale of books or other products that ▇▇▇▇▇▇.▇▇▇ i-nay sell from
time to time. ▇▇▇▇▇▇.▇▇▇ shall treat such data as Confidential Information and
will not use it iii except in accordance with reasonable guidelines to be agreed
by the Parties. Notwithstanding anything contained in this Section, iVillage
will not be required to deliver to ▇▇▇▇▇▇.▇▇▇ any user data in violation of its
then-existing policies regarding the protection of user information.
Section 15. Dispute Resolution
15.1 In a] I discussions and activities relating to this Agreement,
▇▇▇▇▇▇.▇▇▇ and iVillage will cooperate in good faith to accomplish the
objectives specified in this Agreement. If any dispute arises relating to either
Party's rights or obligations under this Agreement, and the Parties are unable
to resolve the dispute in the ordinary course of business, ▇▇▇▇▇▇.▇▇▇ and
iVillage will use good-faith efforts to resolve the matter in accordance with
this Section 15.
15.2 Within five (5) business days following the written request of
either Party (which will describe the nature of the dispute and other relevant
information), the Parties' managers who are responsible for the
▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇ relationship will meet to resolve the dispute at a mutually
convenient time and place. If the relationship managers are unable to resolve
the dispute within two (2) business days following their initial meeting, they
will refer the matter to the Parties' divisional executives who are responsible
for the administration of this Agreement,
11
along with a written statement (or statements) describing the nature of the
dispute and other relevant information.
15.3 Within five (5) business days following the referral of the matter
to the Parties' divisional executives, the divisional executives will meet to
resolve the dispute at a mutually convenient time and place. Additional
representatives of the parties may be present at the meeting. If the divisional
executives are unable to resolve the dispute within two (2) business days
following their initial meeting, they will refer the matter to the Parties'
Chief Executive Officers (or other appropriate corporate officer with the
authority to settle disputes), along with a written statement (or statements)
describing the nature of the dispute and other relevant information.
15.4 Within five (5) business days following the referral of the matter
to the Parties' CEOs, the CEOs will meet to resolve the dispute at a mutually
convenient time and place. Additional representatives of the parties may be
present at the meeting. If the CEOs are unable to resolve the dispute within two
(2) business days following their initial meeting (or such later date as they
may agree), the Parties will be free to pursue whatever remedies may be
available at law or in equity.
15.5 All negotiations pursuant to this Section IS will be confidential
and treated as compromise and settlement negotiations for purposes of applicable
rules of evidence. Any resolution reached under this Section will be reduced to
writing and signed by the Parties. During any dispute resolution procedure
conducted under this Section, the Parties will diligently perform all
obligations hereunder that are not directly related to the dispute.
Section 16. General Provisions
16.1 The Parties are entering this Agreement as independent
contractors, and this Agreement will not be construed to create a partnership,
joint venture or employment relationship between them. Neither Party will
represent itself to be an employee or agent of the other or enter into any
agreement on the other's behalf of or in the other's name.
16.2 Following the execution of this Agreement, ▇▇▇▇▇▇.▇▇▇ and iVillage
will prepare and distribute a joint press release (or coordinated press
releases) announcing the transaction. The contents and timing of the release (or
releases) will be mutually agreed by the Parties. Neither Party will issue any
further press releases, make any other disclosures regarding this Agreement or
its terms or use the other Party's trademarks, trade names or other proprietary
marks without the other Party's prior written consent.
16.3 In its performance of this Agreement, each Party will comply with
all applicable laws, regulations, orders and other requirements, now or
hereafter in effect, of governmental authorities having jurisdiction. Without
limiting the generality of the foregoing, each Party will pay, collect and remit
such taxes as may be imposed with respect to any compensation, royalties or
transactions under this Agreement. Except as expressly provided herein, each
Party will be responsible for all costs and expenses incurred by it in
connection with the negotiation, execution and performance of this Agreement.
12
16.4 Neither ▇▇▇▇▇▇.▇▇▇ nor iVillage will be liable for, or will be
considered to be in breach of or default under this Agreement on account of, any
delay or failure to perform as required by this Agreement as a result of any
causes or conditions that are beyond such Party's reasonable control and that
such Party is unable to overcome through the exercise of commercially reasonable
diligence. If any force majeure event occurs, the affected Party will give
prompt written notice to the other Party and will use commercially reasonable
efforts to minimize the impact of the event.
16.5 Any notice or other communication under this Agreement given by
any Party to any other Party will be in writing and will be deemed properly
given when sent to the intended recipient by registered letter, receipted
commercial courier, or electronically receipted facsimile transmission
(acknowledged in like manner by the intended recipient) at its address and to
the attention of the individual specified below its signature at the end of this
Agreement. Any Party may from time to time change such address or individual by
giving the other Party notice of such change in accordance with this Section
16.5.
16.6 Neither ▇▇▇▇▇▇.▇▇▇ nor iVillage may assign this Agreement, in
whole or in part, without the other Party's prior written consent (which will
not be withheld unreasonably), except to (a) any corporation resulting from any
merger, consolidation or other reorganization involving the assigning Party, (b)
any of its Affiliates, or (c) any individual or entity to which the assigning
Party may transfer substantially all of its assets; provided that the assignee
agrees in writing to be bound by all the terms and conditions of this Agreement.
Subject to the foregoing, this Agreement will be binding on and enforceable by
the Parties and their respective successors and permitted assigns.
16.7 The failure of either party to enforce any provision of this
Agreement will not constitute a waiver of the party's rights to subsequently
enforce the provision. Any remedies specified in this Agreement are in addition
to any other remedies that may be available at law or in equity.
16.8 This Agreement (a) represents the entire agreement between the
parties with respect to the subject matter hereof and supersedes any previous or
contemporaneous oral or written agreements regarding such subject matter, (b)
may be amended or modified only by a written instrument signed by a duly
authorized agent of each party, and (c) will be interpreted, construed and
enforced in all respects in accordance with the laws of the State of Washington,
without reference to its choice of law rules. If any provision of this Agreement
is held to be invalid, such invalidity will not effect the remaining provisions.
The parties agree that the venue for any disputes hereunder shall be King
County, Washington, if such dispute is brought by iVillage, and in New York
City, Borough of Manhattan, New York, if such dispute is brought by ▇▇▇▇▇▇.▇▇▇..
16.9 If any provision of this Agreement shall be declared by any court
of competent jurisdiction to be illegal, void or unenforceable, all other
provisions of this Agreement shall not be affected and shall remain in full
force and effect.
13
16.10 This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original and all of which together shall
be deemed to be one and the same instrument.
IN WITNESS WHEREOF, the Parties hereto have executed and delivered this
Agreement as of the date first above written.
▇▇▇▇▇▇.▇▇▇, Inc. iVillage, Inc.
By [illegible] By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------ ---------------------------
Its SVP Its VP Finance/Legal
------------------------------ ---------------------------
Date 3/28/98 Date 3/28/98
------------------------------ ---------------------------
14
EXHIBIT A
Competitors
As used in this Agreement, "Competitors" includes (without limitation) the
following entities:
alt.bookstore
▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇ (including ▇. ▇▇▇▇▇▇)
Bibliofind
BooksAmerica
BooksNow
Bookpages
Bookport
Bookserve
Booksamillion
BookSearch
BookSite
Booksmith
Book Stacks Unlimited
Book Web
Book Zone
Borders (including ▇▇▇▇▇▇ Books)
CBooks
Computer Literacy Bookshop
Cody's Books
Crown Books
▇▇▇▇▇▇
Interloc
Internet Book Shop
Intertain Internet Bookstore
Online BookStore
▇▇▇▇▇▇'▇ Books
Simon and ▇▇▇▇▇▇▇▇
Tower Books
Waterstone's
WordsWorth Books
EXHIBIT B
Keywords
As used in this Agreement, "Keywords" includes (without limitation) the
following terms and phrases:
Book
Books
Bookstore
Bookstores
Bookseller
Booksellers
Amazon
▇▇▇▇▇▇.▇▇▇
AMZN
Book Store
Book Stores
August 17, 1998
iVillage
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇.
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear ▇▇▇▇,
Per our discussion, ▇▇▇▇▇▇.▇▇▇ and iVillage agree that July 1st, 1998 shall be
deemed the "Implementation Date" of the ▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇ contract signed and
dated March 28, 1998. The contract will run for 12 months from the
"Implementation Date" unless terminated earlier or extended as provided in the
contract.
Please have this document signed and returned to us as soon as possible.
Thank you
▇▇▇▇▇ ▇▇▇▇
iVillage and ▇▇▇▇▇▇.▇▇▇ agree that July 1st, 1998 shall be the "implementation
date" of the contract signed and dated on March 28th, 1998.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------ ------------------------------
iVillage Representative ▇▇▇▇▇▇.▇▇▇ Represenative
▇▇▇▇▇ ▇▇▇▇▇▇▇
VP, Strategic Development & Sales Operations