EXHIBIT 10.14
LICENSE AND DISTRIBUTION AGREEMENT
This Sponsorship Agreement (this "AGREEMENT") is effective as of March 29,
2001 (the "EFFECTIVE DATE") by and between ConnectivHealth, a Delaware
corporation d/b/a Xxxxxxxxx.xxx, with its principal place of business at 00 X.
00 Xx., 0xx xxxxx, Xxx Xxxx, X.X. 10019 ("SH"), and xxxxxx.xxx, Inc., a Delaware
corporation with its principal place of business at 000 Xxxxxxx Xxxxxx, Xxxxx
000, Xxxxx Xxxxxx, Xxxxxxxxxx 00000 ("DKC").
WITNESSETH
WHEREAS, SH operates an Internet site with a home page located at the URL
xxx.xxxxxxxxx.xxx (or any successor thereto) (the "SH SITE") which provides
users access to certain sexual health information and the opportunity purchase
sexual health products;
WHEREAS, DKC develops, markets, provides and maintains an integrated
network of Internet-enabled, consumer-oriented healthcare content, software
applications and services for the purpose of educating consumers and healthcare
professionals on wellness and disease management topics through the DKC Network
(as defined below); and
WHEREAS, SH and DKC desire to work together to develop a co-branded center
on the DKC Network that will provide content, display sponsorships,
advertisements and offer products for sale on the SH Site as further described
herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and in consideration of the mutual
covenants and conditions herein set forth, SH and DKC hereby agree as follows:
1. DEFINITIONS.
1.1 "CO-BRANDED CENTER" shall have meaning set forth in Section 2.2.1
herein.
1.2 "CONTENT" shall mean text, images, video, audio (including, without
limitation, music used in time relation with text, images or video), and other
data, products, services, advertisements, promotions, links, pointers,
technology, functions, tools and software.
1.3 "DKC AFFILIATE" shall mean any current or future entity: (a) whose web
site is affiliated with the DKC Site (including without limitation any
customized, co-branded, mirrored, or private-label sites); (b) which is managed,
maintained or owned by DKC or its employees or agents; (c) which is a community
partner of DKC; or (d) to which DKC licenses DKC Content; and shall include but
not be limited to the Internet, television and print media.
1.4 "DKC BRANDING" shall mean all trademarks, service marks, trade names,
logos, links, navigation and other indicators of origin owned by DKC and used in
the DKC Site.
1.5 "DKC CONTENT" shall mean the Content owned or licensed by DKC for use
on the DKC Network.
1.6 "DKC NETWORK" shall mean the current and future: (a) DKC Site; (b)
Internet sites of any DKC Affiliates; and (c) any other product or service
(including but not limited to e-mail, electronic newsletter or similar
distribution methods) owned, operated, distributed, or authorized to be
distributed by or through DKC or any DKC Affiliates.
1.7 "DKC USER" means a person who is authorized to access the DKC Network.
1.8 "DKC SITE" shall mean the Internet sites with home pages located at
the URL xxx.xxxxxx.xxx and xxx.xxXxxx.xxx and any replacement or successor
thereto.
1.9 "SH BRANDING" means all trademarks, service marks, logos, links,
navigation and other indicators of origin used by SH in the SH Site, including
without limitation all trademarks, trade dress, service marks and logos of all
entities whose products are marketed and sold through the SH Site, but not
including the DKC Branding.
1.10 "SH CONTENT" shall mean the Content owned or licensed by SH for use
on the SH Site.
2. LICENSE GRANTS; OBLIGATIONS AND DELIVERABLES
2.1 LICENSE GRANTS.
2.1.1 TO DKC. Subject to the terms and conditions of this Agreement,
SH hereby grants to DKC, a worldwide, non-exclusive,
non-transferable, fully paid right and license to (a) use,
transmit, display and otherwise distribute the SH Branding,
subject to SH's quality control measures which shall be
consistent with the manner in which SH uses the SH Branding on
the SH Site, solely (i) for the purposes of creating and
maintaining the Co-Branded Center, (ii) promote and market the
SH Content on the Co-Branded Center, and (iii) in conjunction
with any additional services; and (b) use, integrate, exhibit,
transmit, display, reproduce, redistribute, reformat, publicly
and digitally display and publicly perform any SH Content (or
any portion thereof) provided by SH to DKC solely on the
Co-Branded Center. DKC shall not modify any of the SH Branding
in any way, including, but not limited to graphics size,
without the prior written consent of SH.
2.1.2 TO SH. Subject to the terms and conditions of this Agreement,
DKC hereby grants to SH a worldwide, non-exclusive,
non-transferable right and license to use the DKC Branding,
subject to DKC's quality control measures which shall be
consistent with the manner in which DKC uses the DKC Branding
on the DKC Site, on the SH Site, as expressly permitted herein
solely to provide links to the Co-Branded Center.
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SH shall not modify any of the DKC Branding in any way,
including, but not limited to graphics size, without the prior
written consent of DKC.
2.2 DKC'S USE OF THE SH CONTENT. When displayed to a DKC User linking
from the referring DKC Site, the SH Content shall be displayed on
the Co-Branded Center in accordance with this Section 2.2. The
parties agree that the SH Content used on the Co-Branded Center
shall be oriented to the different demographics and user profile. SH
shall update the SH Content to be displayed on the Co-Branded Center
on a regular basis, but in no event shall such updates occur less
frequently than on a monthly basis throughout the Term. Each article
from the SH Content shall include a graphic logo built to DKC's
specifications that will allow users of the Co-Branded Center to
click on the logo and be transported to the SH Site. No DKC Content
shall appear on the same pages of the Co-Branded Center as SH
Content without the prior written consent of SH, which shall not be
unreasonably withheld.
2.2.1 DESIGN OF THE CO-BRANDED CENTER. As used herein, "CO-BRANDED
CENTER" shall mean the Internet site with a home page located
at the URL xxx.xxxxxx.xxx/xxxxxxxxxx/Xxxxxx_Xxxxxx (or any
successor or replacement thereto), formatted in accordance
with EXHIBIT A (subject to Section 2.9) consisting of web
pages containing all of the reformatted sexual health-related
SH Content available for a sexual health center (the "SEXUAL
HEALTH CENTER") for the DKC Site. The Co-Branded Center shall
be jointly developed by SH and DKC and shall (a) maintain the
DKC "look and feel", and (b) include both DKC Branding and SH
Branding. The parties provide that there shall be no links
that divert user traffic away from the Co-Branded Center
(other than links to the SH Site or the paid
sponsor/advertiser sites).
2.2.2 CONSTRUCTION; MAINTENANCE; HOSTING. DKC (a) shall construct,
maintain and operate the Co-Branded Center; and (b) host (i)
the Co-Branded Center. All content provided by SH will be
displayed on the Co-Branded Center as headlines, blurbs and
graphics all linking to the SH site.
2.2.3 ADVERTISING. The Co-Branded Center may contain third party
advertisements, at the sole discretion of DKC. Third party
sponsorship placements will be mutually agreed upon by DKC and
SH.
2.2.4 AVAILABILITY. DKC shall use commercially reasonable efforts to
have the Co-Branded Center accessible at all times; PROVIDED,
HOWEVER, that DKC shall not be responsible for downtime or
other problems caused by any public or third party private
network, including the Internet or any communications carrier
network.
2.3 TO DKC BUTTON. All pages of the Co-Branded Center shall contain a
button above the fold in the form of an 88 x 31 pixel DKC logo, as
provided by DKC, which links to the home page of the referring DKC
Site.
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2.4 QUALITY STANDARDS AND MAINTENANCE. The parties acknowledge and agree
that it is necessary for DKC to maintain uniform standards governing
all facets of the DKC Site in order to provide users worldwide with
high quality and consistent levels of service and to protect the
reputation and goodwill associated with DKC and the DKC Site.
Accordingly, SH agrees to maintain the level of quality of the
portions of the SH Site which link to the Co-Branded Center at least
at the level in place on the Effective Date.
2.5 ONLINE TERMS AND CONDITIONS. SH hereby acknowledges and agrees that
access by SH Users to the Co-Branded Center is subject to the terms
and conditions of the DKC Online Service Agreement (as revised from
time to time).
2.6 USER REGISTRATION; USER DATA.
2.6.1 REGISTRATION. Individual users of the Co-Branded Center shall
have the opportunity to become registered DKC Users. Users
will be afforded the opportunity to register with SH only from
the SH site.
2.6.2 COLLECTION AND USE OF USER DATA. DKC requests its users to
provide personal information when they register for the DKC
Site and/or sign up for certain services such as interactive
tools, chat rooms and forums (the "USER Data"). To the extent
SH has access to the User Data hereunder, SH agrees that it
shall (a) only use the User Data in an ethical manner, and (b)
treat the User Data (i) as Confidential Information (as
hereinafter defined), and (ii) in a manner consistent with
DKC's privacy policy (as revised from time to time).
2.7 DELIVERY OF SH BRANDING. Within ten (10) business days after the
Effective Date, SH shall deliver to DKC the SH Branding, including
the HTML form of the SH navigation and the SH logo.
2.8 ADDITIONAL SERVICES. Any additional services requested by SH
shall be performed at DKC's sole discretion at DKC's then-current
rates.
2.9 REFORMATTING OF THE DKC SITE. DKC shall have the right to redesign
or modify the organization, navigation, structure or "look and feel"
of the DKC Site at any time without prior notice.
3. FEES AND PAYMENTS
3.1 FEES AND PAYMENTS. In consideration of the Licenses granted
hereunder, the parties agree as follows:
(a) SH shall spend amounts up to Seventy-Five Thousand Dollars
($75,000) for the external marketing costs associated with the
Co-Branded Center provided that DKC provides internal
marketing activities for the Co-Branded Center with an
equivalent value and further provided xxxx XXX
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provide documentation proving the marketing activities that it
is engaged in and associated value; and
(b) DKC will provide internal marketing efforts valued at up to
$75,000 provided that SH expenses marketing activities with
an equivalent value, and further provided that SH provide
documentation proving the marketing activities that it is
engaged in and associated value. DKC marketing efforts
will include but, not be limited to, banner advertising on
the DKC network, fixed link placement to the Sexual Health
Center on the xxxxxx.xxx home page, xxxxxx.xxx newsletter
placements and other opportunities as available to DKC.
3.2 REVENUE SHARING. SH and DKC shall share all sponsorship revenue, as
sold by SH, derived from the Co-Branded Center at a share rate of
50/50. Any revenue derived by the SH Site, where such revenue is
directly allocated to the referred DKC User, will be shared by SH
and DKC at a rate of 75/25 respectively. SH and DKC shall share all
sponsorship revenue, as sold by DKC, derived from the Co-Branded
Center as a share rate of 25/75 respectively.
3.3 ADDITIONAL SERVICES. All amounts due for additional services shall
be paid no later than thirty (30) days after receipt of invoice
therefor.
3.4 LATE PAYMENTS. All amounts owed hereunder not paid when due and
payable will bear interest from the date such amounts are due and
payable at one and one-half percent (1.5%) per month.
4. CONFIDENTIAL INFORMATION
4.1 Either SH or DKC may disclose to the other (the "RECEIVING Party")
certain technical or other business information that is not
generally available to the public and that the disclosing party
deems to be confidential and proprietary ("CONFIDENTIAL
INFORMATION"). In the performance of this Section 4, each party
shall use the standard of care it uses to protect its own
Confidential Information, but in no event less than a reasonable
standard of care.
4.2 The Receiving Party agrees to use Confidential Information solely in
conjunction with its performance under this Agreement and not to
disclose or otherwise use such information in any fashion. The
Receiving Party, however, will not be required to keep confidential
such Confidential Information to the extent that (i) becomes
generally available without fault on its part; (ii) is already
rightfully in the Receiving Party's possession without restriction
prior to its receipt from the disclosing party; (iii) is
independently developed by the Receiving Party; (iv) is disclosed by
third parties without similar restrictions; (v) is rightfully
obtained by the Receiving Party from third parties without
restriction; or (vi) is otherwise required by law or judicial
process.
4.3 Unless required by law or to assert its rights under this Agreement,
and except for disclosure on a "need to know basis" to its own
employees, and its legal,
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investment and financial advisers and other professional advisers on
a confidential basis, each party agrees not to disclose the terms of
this Agreement or matters related thereto without the prior written
consent of the other party.
4.4 This Section 4 shall survive for a period of three (3) years beyond
any expiration or termination of this Agreement, PROVIDED that this
Section 4 shall survive indefinitely with respect to Confidential
Information consisting of User Data.
5. REPRESENTATIONS AND WARRANTIES
5.1 DKC. DKC represents and warrants that: (a) it is the owner of the
DKC Branding and the DKC Content and/or has the right to grant the
rights hereunder; (b) its entry into this Agreement does not violate
any agreement with any other party, (c) its performance under this
Agreement will conform to applicable U.S. laws and government rules
and regulations; and (d) the use or display of the DKC Branding or
the DKC Content as contemplated by this Agreement does not and will
not (i) violate any applicable laws or (ii) infringe any rights of
third parties, including, but not limited to, intellectual property,
privacy or publicity rights.
5.2 SH. SH represents and warrants that: (a) it is the owner of the SH
Branding and SH Content and/or has the right to grant the rights
hereunder; (b) its entry into this Agreement does not violate any
agreement with any other party; (c) its performance under this
Agreement will conform to applicable U.S. laws and government rules
and regulations; (d) the use or display of the SH Branding and SH
Content as contemplated by this Agreement does not and will not (i)
violate any applicable laws or (ii) infringe any rights of third
parties, including but not limited to intellectual property, privacy
or publicity rights; (e) it holds the necessary rights to sell the
products, if any, available on the SH Site; and (f) that the sale of
the products, if any, by SH on the SH Site will not (i) violate any
laws or any rights of any third parties, including, but not limited
to, such violations as infringement or misappropriation of any
copyright, patent, trademark, trade dress, trade secret, music,
image, or other proprietary or property right, false advertising,
unfair competition, defamation, invasion of privacy or publicity
rights, moral or otherwise, or rights of celebrity, violation of any
antidiscrimination law or regulation, or any other right of any
person or entity; or (ii) contain any material that is: unlawful,
harmful, fraudulent, threatening, abusive, harassing, defamatory,
vulgar, obscene, profane, hateful, racially, ethnically, or
otherwise objectionable, including, without limitation, any material
that supports, promotes or otherwise encourages wrongful conduct
that would constitute a criminal offense, give rise to civil
liability, or otherwise violate any applicable local, state or
national laws.
6. OWNERSHIP OF INTELLECTUAL PROPERTY
6.1 DKC. The DKC Branding and all materials used by DKC in connection
the DKC Site and the DKC Content are proprietary to DKC or its
suppliers, and are protected by law, including but not limited to
United States copyright, trade secret and trademark law. The DKC
Content is copyright -c- 1998-2001 (or later year)
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xxxxxx.xxx, Inc. and/or its suppliers. SH acknowledges and agrees
that (a) DKC shall own all right, title and interest in and to the
DKC "look and feel", (b) SH's use of the DKC Branding will not
create in it, nor will it represent that it has, any right, title or
interest in or to any DKC Branding or DKC Content other than the
license expressly granted herein, and (c) SH will not contest or
intentionally impair DKC's intellectual property rights.
6.2 SH. The SH Branding and the SH Content are proprietary to SH or its
suppliers, and are protected by law, including but not limited to
United States copyright, trade secret and trademark law. The SH
Content is copyright -c- -2001 (or later year) SexHealth, Inc.
and/or its suppliers. DKC acknowledges and agrees that (a) SH shall
own all right, title and interest in and to the SH "look and feel",
(b) DKC's use of the SH Branding will not create in it, nor will it
represent that it has, any right, title or interest in or to any SH
Branding or SH Content other than the license expressly granted
herein, and (c) DKC will not contest or intentionally impair SH's
intellectual property rights.
6.3 RESERVATION OF RIGHTS. All rights that are not specifically granted
herein are reserved.
7. LIMITATION OF LIABILITY; DISCLAIMER
7.1 EXCEPT FOR EITHER PARTY'S LIABILITY FOR THIRD PARTY CLAIMS AS
SPECIFIED IN SECTION 11 OR ANY PARTY'S BREACH OF SECTION 4, IN NO
EVENT SHALL EITHER DKC OR SH BE LIABLE TO THE OTHER PARTY FOR ANY
SPECIAL, INDIRECT, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OF
ANY NATURE, EVEN IF SUCH PARTY SHALL HAVE BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. THE FOREGOING SHALL APPLY REGARDLESS OF
THE NEGLIGENCE OR OTHER FAULT OF ANY PARTY AND REGARDLESS OF WHETHER
SUCH LIABILITY SOUNDS IN CONTRACT, NEGLIGENCE, TORT, STRICT
LIABILITY OR ANY OTHER THEORY OF LIABILITY.
7.2 EXCEPT AS SET FORTH IN SECTION 5, DKC AND SH MAKE NO, AND EACH PARTY
ACKNOWLEDGES THAT EACH PARTY HAS NOT MADE ANY, AND EACH PARTY HEREBY
SPECIFICALLY DISCLAIMS ANY, REPRESENTATIONS OR WARRANTIES, EXPRESS
OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8. TERM AND TERMINATION
8.1 TERM. This Agreement shall be effective on the Effective Date, and
continue in force for one (1) year after the Effective Date, unless
earlier terminated as provided herein (the "TERM").
8.2 TERMINATION FOR CAUSE. Either party will have the right to
immediately terminate this Agreement if the other party is in breach
of any material obligation herein,
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and such breach is incapable of being cured (or, if such breach is
capable of cure, such breach is not cured within thirty (30) days
(or fourteen (14) days with respect to any default in any payment
obligation)) after receipt of written notice of such breach from the
non-breaching party or within such additional cure period as the
non-breaching party may authorize.
8.3 TERMINATION FOR INSOLVENCY. Either party shall have the right to
immediately terminate this Agreement upon written notice in the
event that the other party (a) voluntarily or involuntarily becomes
the subject of a petition in bankruptcy or of any proceeding
relating to insolvency, receivership, liquidation or composition for
the benefit of creditors or (b) admits in writing its inability to
pay its debts as they become due.
8.4 TERMINATION FOR CONVENIENCE. DKC shall have the right to terminate
this Agreement by providing thirty (30) days prior written notice to
SH.
8.5 TERMINATION FOR TOBACCO AFFILIATION. SH shall promptly notify DKC
prior to commencing any activities relating to a Tobacco Industry
Affiliation (as defined below). After receiving such notice or
learning of any such Tobacco Industry Affiliation, DKC may terminate
this Agreement at any time upon written notice without liability of
any kind; PROVIDED, HOWEVER, that in the event of any inadvertent
breach of this provision by SH, SH shall have ten (10) business days
to remedy any such breach. For purposes of this Agreement, "TOBACCO
INDUSTRY AFFILIATION" shall mean being an entity, or being under the
control of an entity, which engages in the manufacture or wholesale
distribution of tobacco or tobacco products.
8.6 COMPLIANCE WITH LAWS. If at any point during the Term, either
party's performance under this Agreement conflicts with any material
law or regulation, the parties may suspend performance under this
Agreement and negotiate in good faith to amend this Agreement so
that each party's performance hereunder complies with the laws and
regulations. If after thirty (30) days, the parties are unable to
agree on a mutually acceptable amendment, either party may
immediately terminate this Agreement upon written notice to the
other party.
8.7 CONSEQUENCES OF TERMINATION/EXPIRATION. Upon the termination or
expiration of this Agreement, (a) SH shall remove all DKC Branding
from the SH Site and terminate all links from the SH Site to the
Co-Branded Center, (b) DKC shall remove all SH Branding and SH
Content from the Co-Branded Center, and (c) each party shall
promptly return all Confidential Information, and other information,
documents, manuals and other materials stored in any form or media
(including but not limited to electronic copies) belonging to the
other party, except as may be otherwise provided in this Agreement,
and PROVIDED that each party may retain one (1) copy of the
documents it received from the other party for archival purposes.
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8.8 SURVIVAL. The rights, obligations and limitations under Sections 4,
6, 7, 8.6, 9, 10, 11 and 12, and any payment obligations accrued
pursuant to Section 3 but not paid prior to expiration or
termination shall survive expiration or termination of this
Agreement.
9. FORCE MAJEURE
Neither party will be liable for delay or default in the performance of
its obligations under this Agreement (other than for non-payment) if such
delay or default is caused by conditions beyond its reasonable control,
including, but not limited to, fire, flood, accident, earthquakes,
telecommunications line failures, storm, acts of war, riot, government
interference, strikes and/or walk-outs. In the event of a force majeure
event which lasts longer than thirty (30) days, the party not experiencing
the force majeure event may terminate this Agreement upon prior written
notice to the other party.
10. ADVERTISING AND PROMOTION; PUBLICITY
10.1 JOINT PROMOTION. Subject to Section 3.1 hereof, SH and DKC agree to
promote and encourage DKC Users to visit the Co-Branded Center. DKC,
at its sole discretion, may promote the Co-Branded Center by
utilizing its resources, including but not limited to the following:
e-mail distribution to DKC Users, advertisements on the DKC Site,
Power Bar promotion, home page placement on the DKC Site and
e-newsletter distribution. In addition, SH and DKC shall use
external resources to be mutually agreed upon in writing by the
parties, to promote and encourage DKC Users to visit the Co-Branded
Center. SH, at its sole discretion, may promote and market the
Co-Branded Center to the pharmaceutical and healthcare markets.
10.2 PRESS RELEASE. Except as provided for herein, neither party hereto
shall issue or permit the issuance of any press release or other
public statement regarding this Agreement or the parties'
relationship without prior coordination with and approval from the
other party. DKC and SH shall issue an initial press release
following the signing hereof, such release to be prepared as agreed
to in writing by the parties.
10.3 SH shall not have any right to use the name and/or likeness of Dr. C
Xxxxxxx Xxxx or Xx. Xxxx Xxxxxx or to make any statements, whether
written or oral, which state or otherwise imply, directly or
indirectly, any endorsement from or affiliation with Xx. Xxxx and
Xx. Xxxx Xxxxxx in any manner whatsoever without the prior written
consent of DKC which consent may be withheld in DKC's sole
discretion.
11. INDEMNIFICATION
11.1 BY DKC. DKC agrees to defend, indemnify and hold SH and its
officers, directors, agents and employees harmless from and against
any and all third party claims, demands, liabilities, actions,
judgments, and expenses, including reasonable attorneys' fees,
arising out of or related to (a) any breach or alleged
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breach of any of DKC's representations and warranties hereunder; or
(b) any injury to any SH User caused by such User's use of or
reliance on the DKC Content which is displayed on the Co-Branded
Center; PROVIDED that (i) SH notifies DKC promptly in writing of any
such claim, (ii) DKC has the sole control of the defense and all
related settlement negotiations, and (iii) SH provides DKC with all
reasonably necessary assistance, information and authority to
perform the foregoing at DKC's expense.
11.2 BY SH. SH agrees to defend, indemnify and hold DKC and its officers,
directors, agents and employees harmless from and against any and
all third party claims, demands, liabilities, actions, judgments,
and expenses, including reasonable attorneys' fees, arising out of
or related to: (a) any breach or alleged breach of any of SH's
representations and warranties hereunder; and (b) any injury to any
DKC User or SH User caused by such User's use of or reliance on the
SH Content and the products and/or services, if any, sold on the SH
Site; PROVIDED that (i) DKC notifies SH promptly in writing of any
such claim, (ii) SH has the sole control of the defense and all
related settlement negotiations, and (iii) DKC provides SH with all
reasonably necessary assistance, information and authority to
perform the foregoing at SH's expense.
12. GENERAL TERMS AND CONDITIONS
12.1 INDEPENDENT CONTRACTORS. The parties to this Agreement are
independent contractors. Neither party is an agent, representative
or partner of the other party. Neither party shall have any right,
power or authority to enter into any agreement for or on behalf of,
or to incur any obligation or liability for, or to otherwise bind,
the other party. This Agreement shall not be interpreted or
construed to create an association, joint venture, co-ownership,
co-authorship, or partnership between the parties or to impose any
partnership obligation or liability upon either party.
12.2 ASSIGNMENT. Neither party shall assign, sublicense or otherwise
transfer (voluntarily, by operation of law or otherwise) this
Agreement or any right, interest or benefit under this Agreement,
without the prior written consent of the other party; PROVIDED,
HOWEVER, that either party may assign this Agreement to an entity
acquiring such party in a "change of control" (as defined below), so
long as the acquiring entity is not a competitor of the other party,
or an affiliate of any such competitor. Any attempted assignment,
sublicense or transfer by a party in derogation hereof shall be null
and void and the non-assigning party shall have the right to
immediately terminate this Agreement pursuant to Section 8.2.
Subject to the foregoing, this Agreement shall be fully binding
upon, inure to the benefit of and be enforceable by the parties
hereto and their respective successors and assigns. As used herein,
"CHANGE OF CONTROL" shall include a sale of all or substantially all
of the assets of either party or any event (including, without
limitation, a merger, sale, liquidation, transfer, encumbrance or
other disposition) which results in a change of the legal,
beneficial or equitable ownership, directly or indirectly, of more
than fifty (50%) of a class of voting equity of either party.
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12.3 MODIFICATIONS. No change, amendment or modification of any provision
of this Agreement or waiver of any of its terms will be valid unless
set forth in writing and signed by DKC and SH.
12.4 GOVERNING LAW; JURISDICTION. This Agreement shall be interpreted,
construed and enforced in all respects in accordance with the laws
of the State of California. Each party irrevocably consents to the
exclusive jurisdiction of any state or federal court for or within
Los Angeles County, California over any action or proceeding arising
out of or related to this Agreement, and waives any objection to
venue or inconvenience of the forum in any such court.
12.5 NO WAIVER. The failure of either party to insist upon or enforce
strict performance by the other party of any provision of this
Agreement or to exercise any right under this Agreement shall not be
construed as a waiver or relinquishment to any extent of such
party's right to assert or rely upon any such provision or right in
that or any other instance; rather the same shall be and remain in
full force and effect.
12.6 NOTICE. Any notice, approval, request, authorization, direction or
other communication under this Agreement shall be given in writing,
will reference this Agreement, and shall be deemed to have been
delivered and given (a) when delivered personally; (b) three (3)
business days after having been sent by registered or certified U.S.
mail, return receipt requested, postage and charges prepaid; or (c)
one (1) business day after deposit with a commercial overnight
courier, with written verification of receipt. All communications
will be sent to the addresses set forth below or to such other
address as may be designated by a party by giving written notice to
the other party pursuant to this Section 12.6.
If to SH: If to DKC:
-------- ---------
00 X. 00 Xx., 0xx xxxxx 000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, X.X. 00000 Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Attention: Chief Executive Attention: Chief Financial
Officer Officer
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
12.7 ENTIRE AGREEMENT. This Agreement and the Exhibits attached hereto
and incorporated herein by reference constitute the entire agreement
between the parties and supersede any and all prior agreements or
understandings between the parties with respect to the subject
matter hereof. Neither party shall be bound by, and each party
specifically objects to, any term, condition or other provision or
other condition which is different from or in addition to the
provisions of this Agreement (whether or not it would materially
alter this Agreement) and which is proffered by the other party in
any purchase order, correspondence or other document, unless the
party to be bound thereby specifically agrees to such provision in
writing.
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12.8 HEADINGS; SEVERABILITY. The headings used in this Agreement are for
convenience only and are not to be construed to have legal
significance. In the event that any provision of this Agreement
conflicts with the law under which this Agreement is to be construed
or if any such provision is held invalid by a court with
jurisdiction over the parties to this Agreement, such provision
shall be deemed to be restated to reflect as nearly as possible the
original intentions of the parties in accordance with applicable
law, and the remainder of this Agreement shall remain in full force
and effect.
12.9 NO SOLICITATION OR EMPLOYMENT. During the Term and for two (2) years
after termination or expiration hereof, each of the parties agrees
that it shall not solicit to employ or employ any then current
employee of another party who was an employee of such other party at
any time during the Term without the prior written consent of the
employing party.
12.10 COUNTERPARTS. This Agreement may be executed in multiple
counterparts, all of which, taken together, shall constitute one and
the same instrument.
[Signature Page Follows]
12
IN WITNESS HEREOF, the parties hereto have caused this Agreement to be
executed by duly authorized officers or representatives as of the Effective
Date.
SH: CONNECTIVHEALTH D/B/A DKC: xxxxxx.xxx, Inc., a Delaware
SEXHEALTH, INC., a Delaware corporation corporation
By: By:
------------------------------------- ---------------------------------
Name: Name:
----------------------------------- -------------------------------
Title: Title:
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S-1
EXHIBIT A
WRAP SPECIFICATIONS
Anatomy of a Co-Branded Center Page:
---------------------------------
---------------------------------
Top Banner
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Left side
Navigation Main content area
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Bottom Navigation
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The following elements will not change in a wrap:
o The Left Side Navigation
o The Main Content Area
The following elements can be changed via a wrap:
o The Top Banner Section
o The Bottom Navigation Section
TOP BANNER
DKC will replace the top banner section of pages of the Co-Branded Center with
items that will reflect the SH Branding, including, but not limited to graphics,
navigational elements and text. The top banner shall be no wider than 604 pixels
and no higher than 150 pixels.
X-0
XXXXXX XXXXXXXXXX
XXX will also replace the bottom navigation with graphical, navigation and text
elements to further enhance the SH Branding. The bottom navigation shall be no
wider than 604 pixels and this section should work well with our 604 pixel page
width and no higher than 150 pixels in height.
BASIC RULES
All pages of the Co-Branded Center will be no wider than 604 pixels. All colors
(both graphical and HTML) used must conform to the browser-safe color palette.
All wraps must use HTML that will function in IE3+ and NS3+ browsers. DKC will
test the wraps in said browsers to insure compatibility. JavaScripting, DHTML
and CSS are not allowed.
DOCUMENT WEIGHT
The total document weight (graphics plus HTML) of the two wrap elements should
not exceed 30K in size.
A-2
