EXHIBIT 10.8
EXHIBIT B
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FORM OF
LICENSE AGREEMENT
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AGREEMENT made as of April 13, 1998, between TIME LIFE INC.
("Licensor") and GARDEN ESCAPE INC. ("Licensee").
WHEREAS, Time Inc. New Media, an affiliate of Licensor ("TINM"), owns
and operates (a) a site on the World Wide Web of the Internet (the "Internet")
currently known as Pathfinder (the "Pathfinder Site") and (b) a specified area
on the Pathfinder Site currently known as The Virtual Garden (the "VG Area");
WHEREAS, the VG Area includes within it a digitized copy of the Time
Life Plant Encyclopedia database (including the Time Life House Plant Pavilion
database) (the "TL Database");
WHEREAS, Licensee owns and operates a site on the Internet with the
URL of xxx.xxxxxx.xxx (the "Garden Escape Site");
WHEREAS, pursuant to an asset sale agreement (the "Asset Sale
Agreement") dated as of the date hereof, TINM has agreed to sell, assign, and
transfer to Licensee, and Licensee has agreed to purchase and acquire (the "VG
Transaction") from TINM, the assets defined therein as the "VG Assets"; and
WHEREAS, Licensee intends to continue to operate the VG Assets as part
of the VG Area, and located at the URL of xxx.xx.xxx (the "New VG Area");
WHEREAS, in connection with the VG Transaction, Licensor desires to
license to Licensee, and Licensee desires to license from Licensor, certain
rights to use, display, reproduce and publish the TL Database and the trademark
Time Life (the "Trademark"), subject to the terms and conditions set forth
herein.
NOW, THEREFORE, subject to and upon the terms and conditions set forth
herein, the parties hereby agree as follows:
1. Grant
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(a) Subject to the terms and conditions of this Agreement (including
without limitation, the restrictions set forth in Section 5), Licensor hereby
grants to Licensee a worldwide license to display the TL Database as part of the
Garden Escape Site and/or the New VG Area, solely in an Online Context (as
defined below) and solely in the English language. For purposes of this
Agreement "Online Context" shall be defined to mean only that portion of the
Internet now known as the World Wide Web, and shall be deemed to be limited to
distribution in a manner that is freely available and without cost to the end-
user (other than fees charged to access the Internet, or fees charged by
Licensee to subscribe to an area of the Garden Escape Site or New VG Area but
not specifically for access to an area of the Garden Escape Site or New VG Area
containing the TL Database), regardless of the manner or form of transmission
(including, without limitation, by means of telephone wire, cable modem, or
satellite).
(b) Subject to the terms and conditions of this Agreement (including
without limitation, the restrictions set forth in Section 5), Licensor hereby
grants to Licensee a worldwide license to display the Trademark on the Garden
Escape Site and the New VG Area, solely in an Online Context and solely for
purposes of identifying the TL Database as having been created and/or compiled
by Licensor; provided that in no event shall Licensee use the Trademark on the
Garden Escape Site or the New VG Area in an amount or manner that is in any way
more frequent or prominent than the amount or manner by which the Trademark was
used on the TL Database as it existed in the VG Area prior to the date of this
Agreement.
(c) Subject to the terms and conditions of this Agreement, Licensor
hereby grants to Licensee a worldwide license to display, reproduce and publish
limited portions of the TL Database and the Trademark, in promotional materials;
provided that (i) such use of the Trademark is solely for purposes of
identifying the TL Database as having been created and/or compiled by Licensor,
and (ii) those portions of any promotional materials incorporating or referring
to the TL Database and/or the Trademark, are approved by Licensor prior to each
initial distribution of such materials (and if applicable, prior to each initial
distribution of any substantively (e.g., other than color or font changes)
updated or modified versions of such portions) as follows: (x) Licensor will not
unreasonably withhold its consent, (y) Licensor will have ten (10) days from
Licensor's receipt of such materials to approve or reject such materials, and
(z) if Licensor fails to notify Licensee of its approval or rejection of such
materials within such ten (10)
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day period, such materials shall be deemed to have been approved by Licensor.
Licensee shall in no event change or modify in any way the TL Database and/or
the Trademark when displaying, reproducing and publishing the TL Database and/or
the Trademark, or portions thereof, in Licensee's promotional materials.
(d) Licensee shall have no right whatsoever to use the TL Database or
the Trademark in any way that states or implies that Licensor in any way
endorses or sponsors, or is associated or affiliated with, (i) Licensee, the
Garden Escape Site, the New VG Area, or any third party referred to in or linked
to the Garden Escape Site or the New VG Area; (ii) any products, services or
materials of Licensee or any third party contained on or accessible through
(including without limitation, via hyperlink) the Garden Escape Site or the New
VG Area; or (iii) any products, services or materials promoted or offered for
sale by Licensee or any third party on or through (including without limitation,
via hyperlink) the Garden Escape Site or the New VG Area. Failure by Licensee to
comply with the foregoing in any material respect shall result in immediate
termination of this Agreement and the licenses contained herein. Licensee agrees
to place the following language on the initial screen of the area of the Garden
Escape Site or New VG Area containing the TL Database in a manner reasonably
satisfactory to Licensor: "The Time Life Plant Encyclopedia and the Time Life
House Plant Pavilion are owned by Time Life Inc. and have been licensed to
Garden Escape, Inc. for display on this site. Time Life Inc. does not endorse or
sponsor this site or any products or services offered on this site."
(e) Without the prior consent of Licensor, Licensee is strictly
prohibited from (i) making any insertions in, deletions from, or any other
changes or revisions to, the TL Database, or (ii) translating, adapting,
preparing derivative works, copying or reproducing (other than a back-up copy),
redistributing, using or allowing access to, or taking any other action with
respect to, the TL Database other than as explicitly permitted under this
Agreement. Notwithstanding the foregoing sentence, Licensor hereby expressly
consents to the modification by Licensee of the TL Database solely to include
hyperlinks to area(s) within the Garden Escape Site or the New VG Area from
which the user would be able to purchase items relevant to the TL Database and,
in particular, items relevant to that portion of the TL Database in which each
such hyperlink appears (e.g., from an entry in the TL Database concerning a
particular variety of rose to an area within the Garden Escape Site from which
the user could purchase seeds for such variety); provided that Licensor shall
approve such modifications in writing prior to the initial use or display of the
TL Database by Licensee and prior to any such modifications (or substantive
changes to previously made modifications) being made during the term of this
Agreement as follows: (x) Licensor will not
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unreasonably withhold its consent, (y) Licensor will have ten (10) days to
approve or reject such modifications, and (z) if Licensor fails to notify
Licensee of its approval or rejection of such modifications within such ten (10)
day period, such modifications shall be deemed to have been approved by
Licensor.
(f) The license to the TL Database set forth herein shall be
exclusive to Licensee in respect of the Online Context; provided, however, that
Licensor (and its affiliates) shall have the right to use, display, reproduce
and publish (but not to sublicense any such rights to an unaffiliated third
party) the TL Database and the Trademark in an Online Context. Nothing in this
Agreement shall be construed to prohibit or limit Licensor's (and its
affiliates') right to advertise its products in an Online Context, including
describing the contents of products incorporating material in the TL Database.
(g) Except as expressly set forth in Section 1(f) above, nothing in
this Agreement shall in any way limit or restrict Licensor's right, either by
itself or through a third party or parties, to use, promote, license or
otherwise exploit the TL Database and the Trademark.
(h) Licensee shall have the right during the term of this Agreement
and the licenses contained herein to sell advertising to third parties in space
adjacent to the TL Database, and, as between Licensor and Licensee, to retain
all revenue derived therefrom. Licensee shall not display such advertising in a
manner that makes such advertising appear to be part of the content of the TL
Database. However, Licensee shall have no right to offer for sale to a third
party as a subscription product, or otherwise, all or any part of the TL
Database, except that Licensee may charge subscription fee(s) for users to
access an area of the Garden Escape Site or New VG Area so long as such
subscription fees are not charged specifically for access to an area of the
Garden Escape Site or New VG Area containing the TL Database.
2. Royalty
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In consideration of the rights granted by Licensor to Licensee
hereunder, Licensee shall pay Licensor a fee of $100,000, payable upon execution
of this Agreement.
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3. Term
----
The term of this Agreement shall commence on the date first set forth
above and, unless sooner terminated pursuant to the terms hereof, shall expire
on the second anniversary of such date.
4. Quality Control
---------------
(a) Licensee acknowledges that it is familiar with the high
standards, quality, style and image of the TL Database and the Trademark and
shall at all times use the TL Database and Trademark in a manner which is
consistent therewith and with the terms and conditions of this Agreement and the
licenses set forth herein. Without limiting the generality of the foregoing,
neither Licensee nor any of its affiliates shall take any action, or authorize
or permit any condition to exist, which is or might reasonably be expected to be
detrimental to or reflect adversely on the Licensor or any of its affiliates,
the Trademark, the TL Database, or the goodwill associated with any of the
foregoing.
(b) Licensee shall, at Licensor's request, but no more than once
every six (6) months, have an officer of Licensee certify in writing, by signing
the certificate attached hereto as Attachment 1, that Licensee has used, is
using and will continue to use the TL Database and the Trademark in a manner
which is consistent with the high standards, quality, style and image of the TL
Database and the Trademark and with the terms and conditions of this Agreement
and the licenses set forth herein.
(c) Licensee shall, upon reasonable notice by Licensor, during
Licensee's regular business hours and no more than twice per calendar year, give
Licensor, or its internal or third party auditors or accountants, reasonable
access to Licensee's records, files, tools and facilities as necessary for
Licensor to verify that Licensee has been and is using the TL Database and the
Trademark in accordance with the terms and conditions of this Agreement and the
licenses contained herein.
5. TL Database and Trademark Rights
--------------------------------
(a) Licensee hereby acknowledges that Licensor's rights to the TL
Database and to the Trademark are valuable assets belonging to and shall remain
the property of Licensor or its affiliates. Nothing in this Agreement shall
confer any right of ownership in the TL Database or the Trademark in Licensee.
Licensee acknowledges, and shall not at any time contest, the validity of the
Trademark or Licensor's rights in the TL Database or the Trademark. Licensee
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acknowledges that all rights accruing from its use of the TL Database and the
Trademark shall (as between Licensee and Licensor) inure to the benefit of
Licensor, and Licensee shall execute any documents necessary to acknowledge such
rights in Licensor.
(b) Licensor shall supply Licensee with reproduction proofs of the
Trademark, at no cost to Licensee, and Licensee shall use the Trademark only in
the same logotype(s) as depicted in said proofs.
(c) All rights in and to the TL Database and the Trademark not
expressly granted by this License Agreement are reserved (as between Licensee
and Licensor) to Licensor.
(d) At no time shall Licensee make use of the TL Database or the
Trademark or authorize others to use the TL Database or the Trademark, except as
may be specifically permitted by this Agreement or subsequently expressly
approved in writing by Licensor.
(e) Licensee shall not use or display the TL Database or the
Trademark in any manner which, in Licensor's reasonable judgment, might be
confusing, deceptive or misleading or which might reasonably be expected to
bring Licensor into disrepute.
(f) In Licensee's use of the TL Database and the Trademark, Licensee
shall comply with such instructions and directions as Licensor may specify from
time to time, which instructions and directions will not be inconsistent with
the terms and conditions of this Agreement.
(g) The protection of the TL Database and the Trademark is a material
provision of this Agreement
(h) Licensee shall promptly give notice to Licensor of any use of the
TL Database or the Trademark or any confusingly similar trademark, by any third
party of which it becomes aware. Licensor shall decide, in its sole discretion,
if proceedings shall be commenced against said third parties. In the event that
Licensor shall as a result thereof commence a proceeding or any other form of
action, Licensee shall reasonably cooperate with Licensor, provided that all
expenses of such action or proceeding shall be borne by Licensor and all
recoveries (including settlements) resulting from any such action shall (as
between Licensee and Licensor) belong solely to Licensor. Under no circumstances
shall Licensee commence any action to protect the TL Database or the Trademark
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without first obtaining the express written authorization of Licensor, which
authorization shall not be unreasonably withheld.
(i) Licensee shall reasonably assist Licensor, at Licensor's request
and expense, in the protection of Licensor's rights in the TL Database and the
Trademark. Licensee shall execute and deliver to Licensor in such form as
Licensor may reasonably request all instruments necessary to effectuate
trademark protection or registration therein.
6. Sub-Licenses
------------
It is expressly understood that Licensee shall not sublicense the use
of the TL Database or the Trademark without the prior written consent of
Licensor and Licensor shall have the absolute right in its discretion to approve
any sublicensee of Licensee, except that Licensor will not unreasonably withhold
consent to a sublicense to a wholly owned or wholly controlled affiliate of
Licensee.
7. Trademark and Copyright Notices
-------------------------------
The uses by Licensee as permitted hereunder of the Trademark shall
include the following notice and/or such other legal notices as are requested by
Licensor for the protection of Licensor's or the owner of the Trademark's
respective interests therein: "Time Life is a registered trademark of Time
Warner Inc. Used with permission." Licensee shall include such copyright notices
as Licensor shall reasonably specify with respect to the TL Database.
8. Termination
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(a) If Licensee defaults in the performance of any of its obligations
provided for in this Agreement, and any such default is not cured by Licensee
within ten business days from notice by Licensor of such default and setting
forth the particulars thereof, then Licensor shall have the right to terminate
the license granted hereby and this Agreement upon written notice to Licensee.
Nothing contained in this Section 8(a) shall in any way be construed to limit
Licensor's right to immediately terminate this Agreement pursuant to Section
1(d).
(b) Licensor shall have the right to terminate the license granted
hereunder and this Agreement upon written notice to Licensee upon the occurrence
of any of the following events: (i) Licensee commences a voluntary case or
proceeding; consents to the entry of an order for relief against it in an
involuntary
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case or proceeding; consents to the appointment of a receiver, trustee,
assignee, liquidator, custodian or similar official under any Bankruptcy Law of
it or for all or any substantial portion of its property or assets; makes a
general assignment for the benefit of its creditors; or becomes insolvent or
generally fails to or is unable to or admits in writing its inability to pay its
debts as they become due; or (ii) an involuntary case or proceeding is commenced
against Licensee under any Bankruptcy Law and is not dismissed, bonded or
discharged within sixty (60) days thereafter, or a court of competent
jurisdiction enters an order or decree under any Bankruptcy Law that is for
relief against the Licensee in an involuntary case or proceeding, appoints a
custodian of Licensee or for all or substantially all its properties, or orders
the liquidation of Licensee. Licensee shall immediately notify Licensor upon the
occurrence of any of the foregoing events. "Bankruptcy Law" as used herein shall
mean title 11 of the United States Code or any similar Federal, state or foreign
law for the relief of debtors or the arrangement, reorganization, assignment for
the benefit of creditors or any other marshalling of assets or liabilities of
debtors.
9. Effect of Expiration and Termination
------------------------------------
(a) Upon the termination of this Agreement for any reason (including
the immediate termination of this Agreement pursuant to Section 1(d)), Licensee
shall, immediately cease the use of the TL Database and the Trademark in an
Online Context or otherwise and shall promptly delete the TL Database and the
Trademark from Licensee's servers and return all copies to Licensor.
(b) Upon and after the expiration or termination of this Agreement,
all rights granted to Licensee hereunder in the TL Database and the Trademark
shall (as between Licensee and Licensor) revert to Licensor, and Licensee shall
refrain from further use of the TL Database or the Trademark or any further
reference thereto, whether direct or indirect.
10. Representations and Warranties
------------------------------
(a) Licensor represents and warrants that it has the right to enter
into this Agreement, to grant the rights granted herein, and to perform its
obligations hereunder, and to do so will not violate or conflict with any
material term or provision of its charter or by-laws or of any agreement,
instrument, statute, rule, regulation, order to decree to which it is a party or
by which it is bound.
(b) Licensee represents, warrants and covenants that:
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(i) it will not use the TL Database or the Trademark in any
way not authorized by this Agreement;
(ii) its use of the TL Database and the Trademark will comply
in all respects with all applicable laws, ordinances,
rules and regulations; and
(iii) it has the right to enter into this Agreement and to
consummate the transactions contemplated hereby, and to do
so will not violate or conflict with any material term or
provision of its charter or by-laws or of any agreement,
instrument, statute, rule, regulation, order or degree to
which it is a party or by which it is bound.
11. Indemnification
---------------
Licensor and Licensee shall indemnify and hold each other harmless
from and against any and all liability, loss, damage or injury, including
reasonable attorneys fees, arising in connection with claims made by third
parties arising out of a breach, or allegation which if true would constitute a
breach, of any representation and warranty set forth herein, provided that the
party seeking to enforce such indemnity shall provide to the indemnifying party
prompt notice of any claim giving rise to such indemnity and the opportunity to
defend the same with counsel of its own choosing.
12. Notices
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(a) All notices, demands, consents or approvals required or permitted
under this Agreement shall be in writing. Notice shall be considered delivered
and effective when (i) personally delivered; (ii) the day following transmission
if sent by facsimile followed by written confirmation by recognized overnight
courier or registered or certified mail, or by recognized overnight courier.
Notices shall be sent to the parties at the following addresses:
If to Licensor:
Time Life Inc.
0000 Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Senior Vice President - Law and Business Affairs
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With copies to:
Time Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
Time Inc. New Media
1271 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
If to Licensee:
Garden Escape Inc.
000 Xxxx 0xx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: President
or at such other address as shall be given by either party to the other in
writing. Notices given personally or by facsimile shall be deemed given the day
sent; notices given by or overnight courier shall be deemed given the first
business day following the date sent; and notices given by certified or
registered mail shall be deemed given three business days after the date of
mailing.
13. Change in Control. Licensor shall have the right to terminate
-----------------
this Agreement following any Change of Control (as defined herein) of Licensee.
If Licensor exercises its right to terminate this Agreement pursuant to this
Section 13, Licensor shall refund to Licensee a Prorated Refund (as defined
herein), except if the Change of Control involves a Competitor (as defined
herein) of Licensor. "Prorated Refund" shall mean the product of X and Y (where
X is the license fee paid by Licensee to Licensor divided by the total number of
months in the term of this Agreement and Y is the number of months remaining for
the term of this Agreement). A "Change of Control" of Licensee shall be deemed
to have occurred when outstanding voting securities of Licensee (or, if
applicable, of its parent company) are sold or transferred in one or a series of
transactions with the effect that the existing stockholders hold less than a
majority of voting power entitled to vote in the election of directors of
Licensee (or, if applicable, its parent company); provided, however, that a
Change of Control shall not be deemed to have occurred solely by reason of (i) a
Change of Control which results from issuance of shares in a public offering
(other than pursuant to a merger or other
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business combination) or issuance of additional voting securities to one or more
nationally recognized venture capital firms, institutional investors or
individual investors whose net worth gives them the ability to invest in amounts
equivalent to that of institutional investors, in each case for the purpose of
raising capital; (ii) Licensee (or, if applicable, its parent company) is merged
or consolidated with another person or entity with the effect that the existing
stockholders hold less than a majority of voting power entitled to vote in the
election of directors of Licensee (or, if applicable, its parent company) or
(iii) except as otherwise provided in Section 14(e), all or substantially all of
the assets of Licensee are sold to any person or entity; and provided further
that the events specified in the foregoing clauses (i) through (iii) shall
nonetheless constitute a Change of Control if the individual or entity acquiring
control is a Competitor (as defined herein) of Licensor, in which event this
Agreement shall immediately terminate. For purposes of this Section 13, a
"Competitor" of Licensor shall mean (x) any person or entity that is at the time
directly or indirectly engaged, or during the term of the license herein
directly or indirectly engages, in the creation, publication, sale or other
distribution of books, magazines or other printed matter on the subject of
gardening, and (y) without limiting the generality of the foregoing clause (x),
the following entities: Rodale Press, IMP, Reader's Digest, Newbridge,
Bertelsmann, August Home Publishing, Taunton, KIII, Xxxxxxxx, Meigher
Communications and National Gardening Magazine.
14. Miscellaneous
-------------
(a) This Agreement represents the entire understanding between the
parties with respect to the matters dealt with herein. This Agreement cannot be
changed or terminated, and no waiver of compliance with any provision or
condition hereof and no consent provided for herein shall be effective unless
evidenced by an instrument in writing duly executed by the party to be charged.
(b) Neither party shall make any public statements concerning this
Agreement or the license contemplated herein without the prior written consent
of the other party.
(c) This Agreement and the instruments delivered in conjunction
herewith set forth the entire understanding and agreement of the parties
relating to the subject matter hereof and thereof.
(d) Nothing expressed or implied in this Agreement is intended to or
shall confer upon any person, firm or entity other than the parties hereto and
their permitted assignees, any rights, remedies, obligations or liabilities
under or
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by reason of this Agreement. Nothing contained herein shall be construed to
constitute the parties to be partners or joint ventures with or agents for one
another. Neither Licensee nor Licensor shall have any authority to, nor shall
either, obligate or bind the other in any manner whatsoever.
(e) Except as set forth in this sentence or otherwise in this
Agreement, this Agreement may not be assigned by any party without the written
consent of the other party, provided that Licensor may assign this Agreement, in
whole or in part, to any entity which is an affiliate of Licensor. Licensor
agrees that it will not unreasonably withhold its consent if Licensee desires to
assign this Agreement to a wholly-owned or wholly-controlled affiliate of
Licensee, provided that the successor entity assumes all of the obligations of
Licensee under this Agreement, it being understood that Licensor shall have the
right to reasonably determine in its discretion if such proposed assignment
might be detrimental to or reflect adversely on Licensor, the TL Database or the
Trademark, and to withhold consent in such case. Any assignment that is
permitted in accordance with this Section 14(e) shall not be deemed to be a
Change of Control for purposes of clause (iii) of Section 13, provided that the
successor entity assumes all of the obligations of Licensee under this
Agreement. This Agreement shall be binding upon and inure to the benefit of the
parties and their respective successors, legal representatives and permitted
assigns.
(f) This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without regard to conflict of law
principles.
(g) A waiver of any provision of this Agreement shall not be deemed a
waiver of any other provision or subsequent waiver of such provision. In the
event that any provision of this Agreement shall be held invalid or
unenforceable by any court of competent jurisdiction, such holding shall not
invalidate or render unenforceable any other provision hereof.
(h) The section headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
(i) This Agreement may be executed in one or more counterparts, each
of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
TIME LIFE, INC. GARDEN ESCAPE, INC.
By: /s/ Xxxxxx X. XxXxxxxx By: /s/ Xxxxx X. X'Xxxxx
-------------------------------- --------------------------------
Name: Xxxxxx X. XxXxxxxx Name: Xxxxx X. X'Xxxxx
-------------------------------- -------------------------------
Title: Vice President and Secretary Title: Chief Operating Officer
------------------------------- ------------------------------
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ATTACHMENT
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CERTIFICATE OF USAGE
--------------------
I hereby certify that I am an officer of Garden Escape Inc. ("GEI"),
and am familiar with the terms and conditions of the License Agreement
("Agreement") entered into by and between Time Life Inc. ("TLI") and GEI. I
further certify that GEI has at all times since the date of the Agreement used
the trademark Time Life (the "Trademark") and the TL Database (as defined in the
Agreement) in full compliance with Sections 1, 4, 5, 6 and 7 and material
compliance with all of the terms and conditions of the Agreement and the license
granted therein.
/s/ Xxxxx X. X'Xxxxx
--------------------------------------
Print Name: Xxxxx X. X'Xxxxx
----------------------------
Title: Chief Operating Officer
---------------------------------
Date: April 15, 1998
----------------------------------
