EXHIBIT 10.15
AGREEMENT
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This Agreement (the "Agreement") is entered into this 8th day of
February 2000 (the "Effective Date") by and between xxxxxxxxxxx.xxx inc., a
Michigan corporation ("CS"), with its principal place of business at 0000 X.
Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000, and The Parenting Group Inc.,
a Delaware corporation, with its principal place of business at 0000 Xxxxxx xx
xxx Xxxxxxxx, Xxx Xxxx, XX 00000 ("TPG").
1. Definitions
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A. "CS Member" shall mean a person or entity other than a TPG Referred
Member that has enrolled for services offered at the CS Web Site.
B. "CS Program Participant" shall mean each CS Member who enrolls to
participate in the Program by providing the date of birth of at least
one of his/her children who is between the ages of 0-12 (or the
anticipated date of birth for an expected newborn) and such other
information as CS and TPG may otherwise agree upon in writing.
C. "CS/TPG Category Page" shall mean that customized web page on the CS
Web Site that: (i) bears the names and/or logos of both CS and TPG;
and (ii) is only accessible and usable by Program Participants.
D. "CS/TPG Registration Page" shall mean that web page on the CS Web Site
bearing the names and/or logos of both CS and TPG wherein TPG
Referrals and TPG Referred Members may enroll to become a TPG Program
Participant.
E. "CS Web Site" shall mean CS' U.S. English version web site currently
located at xxx.xxxxxxxxxxx.xxx, or it's equivalent.
F. "Impression" shall mean a single advertising exposure opportunity
rendered by any banner, button, text link, window, e-mail, "pop-up",
interstitial, transitional, or other form of Internet advertisement
currently existing or developed in the future, which is served on an
Internet or Intranet delivery vehicle (including, but not limited to,
web pages, e-mails, newsgroup posts, proprietary online service
content, on-premise kiosks, and any other Internet or Intranet
delivery vehicle currently existing or developed in the future).
G. "Launch Date" shall be the first day that all of the following
conditions are satisfied: (i) the CS/TPG Category Page contains offers
exclusive to the Program; (ii) the CS/TPG Category Page contains
content provided by TPG pursuant to Section 5A2; and (iii) the first
written promotion of the CS/TPG Category Page has been distributed to
consumers by TPG; but in no event later than ninety (90) days from the
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Effective Date. The parties shall confirm the Launch Date in writing
within thirty (30) days of the Launch Date.
H. "Members" shall mean CS Members and TPG Referred Members.
I. "Program" shall mean Program Services and informational content
targeted at families either expecting a child or with children ages 0-
12, that (i) is located on, or is accessible from, the CS/TPG Category
Page, and (ii) is only available to Program Participants.
J. "Program Participants" shall mean CS Program Participants and TPG
Program Participants.
K. "Program Services" shall mean those advertiser services (e.g. coupons,
e-mails) identified on the Rate Card attached hereto as Exhibit B that
are accessible by and available only to Program Participants.
L. "Program URL Addresses" shall mean the following URL addresses which
shall deliver a TPG Referral to the CS/TPG Registration Page or a TPG
Program Participant to the CS/TPG Category Page:
xxx.xxxxxxxxx.xxxxxxxxxxx.xxx;
xxx.xxxxxxxxxx.xxxxxxxxxxx.xxx;
xxx.xxxxxxxx.xxxxxxxxxxx.xxx;
xxx.xxxxxxxxxxxxxxxx.xxxxxxxxxxx.xxx;
xxx.xxxxxxxxxx.xxxxxxxxxxx.xxx;
xxx.xxxxxxxxxx.xxx;
xxx.xxxxxxxxx.xxx
xxx.xxxxxxxx.xxx
xxx.xxxxxxxxxxxxxxx.xxx
xxx.xxxxxxxxxx.xxx
and such other addresses as the parties may otherwise agree upon in
writing.
M. "TPG Program Participant" shall mean each TPG Referred Member who
enrolls to participate in the Program by providing the date of birth
of at least one of his/her children who is between the ages of 0-12
(or the anticipated date of birth for an expected newborn) and such
other information as CS and TPG may otherwise agree upon in writing.
N. "TPG Referrals" shall mean persons who are not Members who access the
CS Web Site (i) via an Impression on the TPG Web Site, (ii) via a
Program URL Address, or (iii) via a link in an e-mail sent by CS
pursuant to Section 5C herein.
O. "TPG Referred Member" shall mean a TPG Referral who has enrolled for
services (other than the Program) offered at the CS Web Site.
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P. "TPG Web Site" shall mean TPG's U.S. English version web site, to be
designated by TPG from time to time.
Q. "Trial Offer" for a TPG Magazine shall mean an offer by TPG to a
potential subscriber for one or more trial issues of Parenting,
BabyTalk, or Family Life Magazines.
2. Term/Termination.
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A. The term of this Agreement shall commence on the Effective Date and
expire fourteen (14) months from the Launch Date (the "Initial
Term"). This Agreement shall be renewed for a two (2) year term (the
"Renewal Term"), if both parties agree in writing to so renew not less
than sixty (60) days prior to the end of the Initial Term.
B. TPG may terminate this agreement immediately upon written notice to CS
that TPG has received notice of a claim against TPG for patent
infringement in connection with the Program. In addition, either
party may terminate this Agreement pursuant to Section 3.B or as
provided in this Section 2.B:
1. upon a material breach of this Agreement (other than a breach of
Section 14, which is addressed in Section 2.B.4 by the other
party, effective thirty (30) days after written notice to the
other party setting forth such breach, provided that such other
party has not cured such material breach within such thirty (30)
day period.
2. if the Agreement is renewed, effective sixty (60) days after
notice to the other party, if, as of the date that is 12 months
following the Launch Date (the "Launch Anniversary Date"): (i)
total Net Advertising Revenues (as defined in Section 8B) were
less than $350,000; or (ii) less than 250,000 Program
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Participants were enrolled; or (iii) TPG Program Participants
constituted less than twenty-five percent (25%) of all Program
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Participants. Any such notice of termination hereunder shall not
be valid unless sent to the other party within sixty (60) days of
the date TPG receives from CS notice of the amount of total Net
Advertising Revenues, the number of Program Participants, and the
number of TPG Program Participants, as of the Launch Anniversary
Date. Such information shall be sent in accordance with Section 8
herein.
3. if the Agreement is renewed, upon the expiration of the 12 month
period following the Initial Term (i.e., 26 months following the
Launch Date), effective sixty (60) days after notice to the other
party, if, as of the date that is 12 months following the Launch
Anniversary Date (the "Second Anniversary Date"): (i) total Net
Advertising Revenues (as defined in Section 8B) for such 12 month
period were less than $1,000,000; or (ii) less than 500,000
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Program Participants were enrolled by the Second Anniversary
Date. Any such notice of termination hereunder shall not be valid
unless sent to the other party within sixty (60) days of the date
TPG receives from CS notice of the amount
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of total Net Advertising Revenues and the number of Program
Participants, as of the Second Anniversary Date. Such information
shall be sent in accordance with Section 8 herein.
4. Immediately upon written notice to the other party of the breach
of any warranty under Section 14 herein by the other party.
C. Upon the effective date of expiration or termination of this
Agreement, as specifically set forth in this Section 2C:
1. Neither party shall ever use the Program URL Addresses containing
any trademark of the other party for any purpose whatsoever and
this obligation shall survive the expiration or termination of
this Agreement.
2. If such termination was by CS or TPG pursuant to Section 2.B.2 or
2.B.3 only, then for a period from the effective date of
termination through that day which is three (3) years from the
Launch Date, CS shall pay TPG ten percent (10%) of all revenues
it receives from third parties for savings offers appearing in
the Babies and Children category on the CS Web Site that are
targeted to former Program Participants using the date of birth
of a child of the former Program Participant as the targeting
variable. CS shall pay such amounts to TPG at the end of each
calendar quarter during such period, within thirty (30) days of
the end of such quarter, and each payment shall include a
reasonably detailed reconciliation.
3. CS shall remove the TPG name(s), logo(s), all TPG-owned xxxx(s),
and all TPG-supplied content from the CS Web Site.
4. CS shall notify Program Participants of the termination of the
Program. Said notice may only inform Program Members of the end
of the Program, the effective date of the end of the Program, and
of the continuation of the CS category for Babies and Children
(or its successor). The notice shall not give any statement of
the reason for the end of the Program. CS shall consult with TPG
on the contents of such notice.
5. Only if TPG offers to renew this Agreement, and CS does not
accept the offer to renew this Agreement, for a term of at least
one (1) year on substantially the same terms and conditions, then
for a period of one (1) year from the effective date of
expiration, CS shall pay TPG ten percent (10%) of all revenues it
receives from third parties for savings offers appearing in the
Babies and Children category on the CS Web Site that are targeted
to former Program Participants using the date of birth of a child
of the former Program Participant as the targeting variable. CS
shall pay such amounts to TPG at the end of each calendar quarter
during such one-year period, within thirty (30) days of the end
of such quarter, and each payment shall include a reasonably
detailed reconciliation.
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3. The CS/TPG Category Page and the Program.
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A. CS will develop and host the CS/TPG Category Page, which (i) may be
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accessed by CS Program Participants under the category "Babies and
Children" from an Impression on the home page of the CS Web Site, and
(ii) will be the first web page seen by TPG Program Participants upon
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accessing the CS Web Site. Subject to the provisions of Section 6, CS
may continue to offer and maintain the category entitled "Babies and
Children" currently found on the main page of the CS Web Site, and CS
Members accessing CS web pages under such category may encounter
offers relevant to such category from advertisers that have contracted
with CS; provided however, such CS Members shall not encounter offers
for Program Services. Program Participants accessing the CS/TPG
Category Page shall encounter the same content available to CS Members
accessing CS web pages under the category entitled "Babies and
Children" PLUS offers for Program Services; provided however: (x)
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offers for Program Services shall be set apart from the other offers
on the CS/TPG Category Page; and (y) the CS/TPG Category Page shall
contain a link (located above the fold) to a separate page on which
only offers for Program Services appear.
B. CS and TPG shall use commercially reasonable efforts to have the
Launch Date occur within sixty (60) days of the Effective Date. CS
shall provide TPG with general screen designs for the CS/TPG Category
Page and the CS/TPG Registration Page no later than thirty (30) days
after the Effective Date and TPG will have ten (10) business days from
receipt thereof to approve or reject such designs. In the event TPG
rejects any such designs, CS will use its best efforts to provide TPG
with alternative designs within fifteen (15) business days of CS'
receipt of such notice of rejection and TPG will have ten (10)
business days from receipt thereof to accept or reject such
alternative designs. TPG's failure to notify CS in writing within
said 10 business day period of its approval or rejection of any such
alternative design shall be deemed a rejection of such alternative
design. In the event TPG rejects said alternative designs, then each
party may, at its sole discretion, (i) continue attempting to create
an acceptable design, or (ii) terminate this Agreement effective
immediately upon written notice to the other. CS shall not materially
alter any screen designs approved by TPG without TPG's consent.
C. TPG Referrals accessing the CS Web Site will be linked to the CS/TPG
Registration Page. Members who are not Program Participants will be
promoted (as provided in Sections 3A and 3K) to enroll in the Program
on the CS Web Site. TPG Referrals accessing the CS/TPG Registration
Page will be offered the opportunity to enroll on such page to become
a TPG Program Participant, and a TPG Referred Member (to the extent
that he/she is not already a CS Member). The CS/TPG Registration Page
shall contain a link to the CS Privacy Policy. All TPG Referrals who
become TPG Referred Members and/or TPG Program Participants will be
tagged by CS such that thereafter, at all times while this Agreement
is in
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effect or until the TPG Referred Member and/or TPG Program Participant
requests otherwise, that TPG Referred Member or TPG Program
Participant can be identified by CS as a TPG Referred Member and/or
TPG Program Participant.
D. The CS/TPG Category Page shall contain all of the following: an
Impression that enables Members to access the TPG Web Site; an
Impression that enables Members to access the main CS Web Site; and
the CS logo and the TPG Parenting logo in equal size. The TPG
Parenting logo shall appear on the CS/TPG Category Page in the special
messaging area where Program Services are presented. CS shall control
the appearance and operation of the CS/TPG Category Page (including
but not limited to, determining the type, content, appearance, and
location of all Impressions thereon) subject only to (x) TPG's prior
written approval of the screen designs (as provided in Section 3B
above) and any material changes thereto, and (y) CS' obligations
relative to the TPG Marks set forth in the preceding sentence and in
Section 7 herein. CS shall operate and maintain the CS/TPG Category
Page in the same manner as it maintains other pages on the CS Web
Site. By way of example but not limitation, the CS/TPG Category Page
will offer the same coupon downloading software made available by CS
to Members elsewhere on the CS Web Site.
E. CS and TPG shall jointly own the following data: (i) Program Services
aggregate clip data; and (ii) all enrollment information provided by
TPG Program Participants who authorized CS to share such information
with TPG. On the registration page for TPG Referrals, CS shall
provide a "check" box for TPG Referrals to authorize the sharing of
such information with TPG, the default position of which shall be
"checked" thereby authorizing the sharing of such information, unless
the TPG Referral acts to revoke such authorization by "un-checking"
such box.
F. Program Participants shall be given the option to enroll to receive
special e-mails promoting the Program. Subject to the last sentence of
this subsection F, CS shall send such special e-mails to Program
Participants not less than once each month. CS may only send e-mails
to Program Participants who have enrolled to receive such e-mails and
all such e-mails shall contain: (i) the names of both CS and TPG, or
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the CS Squealer Xxx logo and the TPG Parenting logo (next to each
other in approximately equal size and prominence); (ii) offers from
advertisers that purchase such e-mail solicitation Program Services;
and (iii) content provided by TPG pursuant to Section 5A2 which is
acceptable to CS. CS shall not include in any e-mail any content
previously provided by TPG unless TPG has approved such content for
use in such e-mail. CS shall provide TPG with a copy of the proposed
e-mail (including TPG editorial content and all advertising offers) in
its entirety and TPG shall notify CS in writing of its approval or
disapproval of the use of such content in such e-mail within two (2)
business days. CS acknowledges and agrees that TPG may reject use of
its content in such emails for failure to comply with ASME guidelines
or other reasons. If TPG does not approve such email in its entirety
or does not provide replacement
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content acceptable to CS within said two business days, then CS may,
at its option, elect to (x) send such e-mail without content provided
by TPG, or (y) not send an e-mail for that particular month.
G. The CS/TPG Category Page shall contain a splash page accessed from a
link on the CS/TPG Category Page entitled "About the Site" or such
other title mutually agreed upon by the parties. Said splash page
shall contain an explanation of the Program and the relationship
between TPG and CS. TPG shall draft the content of such page and
provide it to CS for its approval no later than sixty (60) days after
the Effective Date. No content shall appear on the CS/TPG Category
Page or any splash page without CS' prior written approval.
H. TPG shall be entitled to promote subscriptions to BabyTalk, Family
Life, Parenting, and Healthy Pregnancy magazines on the CS/TPG
Category Page subject to CS' control over the location of all such
promotions on the CS/TPG Category Page. TPG shall control the design
and/or appearance of such promotions subject to CS' right to reject or
cancel any promotion deemed unacceptable by CS in its sole discretion.
CS shall provide an Impression from the CS/TPG Category Page to a
location selected by TPG whereby Program Participants wishing to
subscribe will be able to subscribe for such publications. CS shall
have no rights to or in any subscription data for such magazines
accumulated by TPG or its agents at any location outside of the CS Web
Site. TPG shall not be obligated to pay any fees for such promotions
except for: (i) production costs, if any, incurred by CS (at CS' cost)
with the prior written authorization of TPG; and (ii) a commission to
CS for each "Trial Offer" from TPG or its affiliates that is accepted
by a Program Participant as more fully set forth in Section 8D herein.
Provided however, in the event TPG does not authorize any production
costs for a promotion as set forth above, then CS shall not be
obligated to place such promotion on the CS/TPG Category Page.
I. CS and TPG will each designate an account manager to work directly
with the other party to implement and promote the Program. By way of
example but not limitation, these managers will coordinate the
marketing efforts of the parties to prevent advertiser confusion that
might arise from the two parties' sales staffs simultaneously selling
the Program. The account managers shall devote not less than one
weekly telephone conference to the Program and its promotion and
conduct. CS and TPG will provide their respective account managers
with training on the selling points and services of the Program.
J. J.CS will provide customer service support for Program Participants
via e-mail in the same manner and of the same quality as it provides
such service to CS Members.
K. Subject to the last sentence of this subsection K, no later than
thirty (30) days after the Launch Date CS shall send a targeted e-mail
promoting the CS/TPG Category Page and the Program to not less than
400,000 CS Members fitting the following profile:
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parents between the ages of 26 and 39 with one or more children
between the ages of 0 - 12. CS shall not include in any e-mail any
content previously provided by TPG unless TPG has approved such
content for use in such e-mail. CS shall provide TPG with a copy of
the proposed e-mail (including TPG editorial content and all
advertising offers) in its entirety and TPG shall notify CS in writing
of its approval or disapproval of the use of such content in such e-
mail within two (2) business days. CS acknowledges and agrees that TPG
may reject use of its content in such e-mails for failure to comply
with ASME guidelines or other reasons. If TPG does not approve such
email in its entirety or does not provide replacement content
acceptable to CS within said two business days, then CS may, at its
option, elect to (x) send such e-mail without content provided by TPG,
or (y) not send such targeted e-mail.
L. All TPG advertising of the CS/TPG Category Page shall include one of
the Program URL Addresses and the CS logo.
M. No advertising may appear on the CS/TPG Category Page unless both of
the following conditions have been satisfied: (i) a written contract
covering such advertising has been executed by CS and the advertiser;
and (ii) both CS and TPG have approved the advertising. TPG shall
notify CS in writing of its approval or disapproval of any such
advertising within two (2) business days. TPG's failure to so notify
CS shall be deemed an approval of such advertising; provided however,
TPG shall be entitled to later revoke any such deemed approval upon
written notice to CS, and upon receipt thereof, CS shall promptly
remove such advertising from the CS/TPG Category Page. A copy of CS'
standard form advertiser contract is attached hereto as Exhibit "C".
CS shall retain sole discretion over the acceptable terms and
conditions of any contract between CS and an advertiser provided that
such terms and conditions do not breach the other provisions of this
Agreement. A material breach by CS of its obligations under its
contract with an advertiser shall constitute a breach of this
Agreement entitling TPG to terminate this Agreement, effective thirty
(30) days after written notice to CS, as its sole and exclusive
remedy, provided that TPG retains any rights under Section 13 under
this Agreement as a result of any such breach by CS.
N. The CS/TPG Category Page shall not accept any advertising from any of
the following magazines (which TPG hereby identifies as competitors
with its Baby Talk, Healthy Pregnancy, Parenting, or Family Life
magazines): American Baby, Child, Family Fun, Lamaze, Parents, Sesame
Street, Working Mother, Working Woman.
O. Notwithstanding anything contained in this Agreement that can be
construed to the contrary, neither CS nor TPG shall knowingly permit
any on-line content related to the Program on the CS Web Site that may
reasonably be considered to be obscene, indecent, inappropriate,
misleading, inaccurate, false or defamatory, or infringing on any
trademark, copyright, any right of privacy or right of publicity, or
any other right of any third party.
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4. Marketing of Program Services. Both CS and TPG shall market Program
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Services and the rates for such services shall be in accordance with the
schedule attached hereto as Exhibit "B" hereto, as amended from time to
time by the parties (the "Rate Card"). The rates set forth on the Rate
Card shall apply to all advertisers for Program Services unless both
parties agree in writing to a deviation therefrom. A party shall respond
to a written request to approve a deviation from the Rate Card within five
(5) business days of receipt thereof. A failure to respond to any such
request for a deviation of fifty percent (50%) or less, within such time
period shall be deemed an approval of such request. Any deviation in excess
of fifty percent (50%) shall at all times require the written approval of
both parties hereto. The parties shall review the Rate Card every calendar
quarter.
5. TPG Obligations.
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A. TPG shall promote CS/TPG Category Page by providing the following:
1. Advertising deliverables, during the Initial Term and each year
thereafter while this Agreement is in effect, as more fully set
forth on Exhibit E.
2. Provide CS each month, at no charge, with five (5) parenting
"tips" for posting on the CS/TPG Category Page and/or inclusion
in the monthly e-mails to be distributed by CS pursuant to
Section 3F. Each of said "tips" shall be not less than forty
(40) words in length and each month one such "tip" shall be
targeted to parents of children of each of the following age
groups: prenatal to 6 months; 6+ months to 12 months; 12+ months
to 24 months; 24+ months to 4 years; and 4+ years to 12 years.
Each "tip" for a particular month shall be delivered to CS no
later than the fifteenth (15/th/) of the preceding month (e.g.
content to go live on in January 2000 must be delivered by
December 15, 1999) except for the 5 "tips" for the launch of the
Program which shall be delivered to CS at least 48 hours prior to
the Launch Date. The content of a "tip" need not be created
exclusively for the Program; it may be identical to that
appearing, or having appeared, in any other media as long as TPG
has the right to re-publish it on the CS Web Site.
B. Intentionally Deleted.
C. Provided that such action does not have an adverse impact upon TPG's
business (as determined by TPG in the exercise of its business
judgment), TPG shall test for a limited period of time to be
determined by TPG: (i) collection of the e-mail addresses of persons
contacted by TPG who have consented to receive e-mail or savings
offers from CS; and (ii) forwarding of the e-mail addresses of such
persons to CS. CS shall send an e-mail to such persons inviting them
to enroll in the Program, in accordance with Section 3K.
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D. Within sixty (60) days of the Effective Date of this Agreement, TPG
shall provide CS with a list of names and addresses of Parenting,
BabyTalk, and Family Life magazine subscribers (the "TPG Magazine
Subscription Lists"). Upon receipt thereof, CS shall determine,
within thirty (30) days of receipt of the list, which of said
subscribers are also CS Members. CS shall send an e-mail to each such
CS Member who has consented to receive e-mails from CS, inviting them
to enroll in the Program. CS agrees not to disclose the list to any
third party, or to any employees except as required to determine which
of such subscribers are also CS members. CS agrees not to make any
copies of the list, and to return the list to TPG by Federal Express
within 35 days of receipt by CS of the list. Any breach by CS of its
obligations under this Section 5D shall be a material breach of this
Agreement and such breach shall also entitle TPG to the remedies set
forth in Section 12D.
6. Exclusivity.
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A. During the term of this Agreement neither party shall enter into any
relationship with a third party to establish an on-line marketing or
sales program which satisfies all of the following requirements: (i)
the on-line program requires participants to furnish a date of birth
of a child in order to participate; (ii) the on-line program is for
on-line product discount coupon services or benefits targeted by
advertisers to participant groups whose individual members' identities
are protected from disclosure to advertisers; and (iii) the on-line
program sells on-line advertising to advertisers, and markets on-line
discount coupons or benefits from such advertisers, to members based
upon the dates of birth of the children provided by such members. CS
shall be entitled to create with third parties co-branded web sites
that are located within the CS Web Site (e.g. coolsavings/ivillage),
provided that: (x) such co-branded sites offer visitors to the home
pages of the co-branded sites the opportunity to become a Program
Participant from such co-branded sites via the category "Babies and
Children" on the home pages of the co-branded sites; and (y) such co-
branded sites do not satisfy all of the requirements in subsections
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6A(i), (ii), and (iii) hereinabove.
B. During the term of this Agreement and for a one (1) year period
commencing immediately after the expiration or termination of this
Agreement, CS shall not, directly or indirectly, enter into an
agreement with any of the following named third parties to establish a
program promoting services based upon a child's date of birth to a
select portion of CS Members who enroll in a special program via a
general category on the main page of the CS Web Site: Xxxxxx & Xxxx;
American Baby; Lamaze; Disney; or Gift Pax.
C. Intentionally Deleted.
D. During the term of this Agreement and for a one (1) year period
commencing immediately after the expiration or termination of this
Agreement, TPG shall not,
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directly or indirectly, enter into an agreement with any of the
following named third parties to provide or receive on-line product
discount coupon services or benefits based upon a child's date of
birth, targeted by advertisers to participant groups whose individual
members' identities are protected from disclosure to advertisers:
ValuPage/Catalina; PlanetU/NewsAmerica; Ecentives; Coupon Surfer;
XxxxxXxxx.xxx; ValPak; Hot Coupon/Money Mailer; MyPoints; and
Lifeminders.
7. Marks/Use of Name/Press Releases.
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A. CS' trademarks, trade names, product identifications, artwork and
other symbols and devices associated with CS' products and services,
including, but not limited to, the name "coolsavings" and the Squealer
Xxx logo (the "XX Xxxxx") are and shall remain CS' sole and exclusive
property. Except as provided in Section 7C hereinbelow, all XX Xxxxx
and uses of any XX Xxxxx may not be displayed, referenced, or
distributed anywhere by TPG without CS' prior written approval (which
approval shall not be unreasonably withheld or delayed) subject to CS'
right to reject or change any such uses by TPG of the XX Xxxxx at any
time. The right to use the XX Xxxxx is non-exclusive, non-assignable
and non-transferable. All uses by TPG of the XX Xxxxx shall inure
solely to the benefit of CS.
B. TPG's trademarks, trade names, product identifications, artwork and
other symbols and devices associated with TPG's products and services,
including, but not limited to, the name The Parenting Group and the
Parenting name and logo (the "TPG Marks") are and shall remain TPG's
sole and exclusive property. Except as provided in Section 7C
hereinbelow, all TPG Marks and uses of any TPG Marks may not be
displayed, referenced, or distributed anywhere by CS without TPG's
prior written approval (which approval shall not be unreasonably
withheld or delayed) subject to TPG's right to reject or change any
such uses by CS of the TPG Marks at any time. The right to use the TPG
Marks is non-exclusive, non-assignable and non-transferable. All uses
by CS of the TPG Marks shall inure solely to the benefit of TPG.
C. Neither party shall use the name or Xxxx of the other party, its
affiliates or subsidiaries, in connection with any written or on-line
representation, solicitation, promotion, sales or marketing
publication or advertisement, without the prior written consent of the
other, except as follows: (i) wherein the name and/or Xxxx appears in
a list with the names of other entities doing business with a party
hereto, or (ii) wherein the name and/or Xxxx appears in a reproduction
of a screen that is used in the Program.
D. Except as may be required by law, regulation or any governmental
authority, neither Party, nor any of its affiliates, shall issue a
press release or make any similar public announcement related to the
transactions contemplated by this Agreement without the prior written
consent of the other, which consent shall not be unreasonably withheld
or delayed. The Parties shall use their best efforts to
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agree upon and issue a press release within thirty (30) days of the
Effective Date of this Agreement.
8. Fees/Audit.
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A. CS shall pay TPG a fee equal to Seventy cents ($0.70) for each TPG
Referred Member. PROVIDED HOWEVER, CS shall not be obligated to pay
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any fees for: (i) more than one TPG Referred Member in any one
household (i.e. the fee is limited to one fee per household regardless
of the number of TPG Referred Members enrolling from such household);
and (ii) duplicate registrations (e.g. the same person registering
under different names, or more than one registration from the same e-
mail address) as reasonably determined by CS; and in the event CS has
already paid a fee hereunder for any TPG Referred Member who is
subsequently determined to be from the same household as another TPG
Referred Member or for a duplicate registration, then CS shall be
entitled to a credit against any other payments which may thereafter
be due to TPG hereunder, or a refund from TPG if no further payments
are owing hereunder. All fees owing hereunder shall be paid to TPG at
the end of each calendar quarter, no later than thirty (30) days after
the end of the calendar quarter, and shall be accompanied by a report
of the total number of TPG Referred Members, and the total number from
each TPG source (e.g. TPG URL's, TPG Magazines) who enrolled during
such calendar quarter.
B. CS and TPG shall divide the Net Advertising Revenues (as defined
below) received by CS in the previous calendar quarter from
advertisers for Program Services only as follows:
1. On Net Advertising Revenues collected during the first four
---------------------------------------------------------------
calendar quarters following the Launch Date:
-------------------------------------------
Fifty percent (50%) to CS; Fifty percent 50% to TPG;
2. On Net Advertising Revenues collected during all subsequent
----------------------------------------------------------------
calendar quarters:
-----------------
Twenty Five percent (25%) to CS; Twenty Five percent 25% to TPG;
and the remaining Fifty percent (50%) (the "Balance") shall be
divided between the parties as follows:
(a) To CS: Balance x [total cumulative CS Program
Participants/total cumulative Program Participants]
(b) To TPG: Balance x [total cumulative TPG Program
Participants/total cumulative Program Participants]
12
The total cumulative number of Program Participants shall be
determined as of the end of the calendar quarter for which the
determination is being made
Example: Net Advertising Revenue for a calendar quarter =
$500,000; the Balance = $250,000; total Program Participants =
100,000; CS Program Participants = 40,000; TPG Program
Participants = 60,000.
CS will receive $125,000 (=25% of $500,000) + $100,000 ($250,000
x 40,000/100,000) for a total of $225,000.
TPG will receive $125,000 (=25% of $500,000) + $150,000
($250,000 x 60,000/100,000) for a total of $275,000.
All fees owing hereunder shall be paid to TPG by CS at the end of each calendar
quarter, no later than thirty (30) days after the end of the calendar quarter.
Each quarterly payment by CS shall be accompanied by a quarterly report on the
total number of TPG Program Participants, and the total number of TPG Program
Participants from each TPG source, and such report on the fourth quarter shall
be accompanied by a report including the cumulative information for the year.
"Net Advertising Revenues" as used herein shall mean gross revenues for Program
Services only (e.g. offers on the CS/TPG Category Page available to Program
Participants only and Program e-mails to Program Participants only), received by
CS minus all commissions and off-line fulfillment costs (e.g. direct mail)
-----
payable by CS to third parties other than TPG for obtaining such advertising.
"Net Advertising Revenues" shall not include any revenues received by CS for
---
advertising that is not exclusive to Program Participants (i.e. advertising
other than Program Services appearing on the CS/TPG Category Page or e-mails
which are also available to CS Members who are not Program Participants).
C. Not more than once each calendar year, TPG shall have the right, at
its expense, upon five (5) business days advance written notice to CS,
during CS' normal business hours only, to audit the books and records
of CS necessary to confirm the amounts of any payments due to TPG and
the accuracy of the CS quarterly and annual reports to TPG under this
Agreement. All such audits shall: (i) only be performed by TPG, its
affiliated companies Time Inc., or Time Warner Inc., or an accountant
retained by TPG or such affiliated companies; and (ii) be performed at
CS' offices unless otherwise agreed to in writing by CS. The auditors
shall not disclose any information to TPG other than the amount owing,
if any, to TPG, the numbers of Program Participants and TPG Program
Participants and the accuracy of the CS quarterly and annual reports
to TPG, and any additional information necessary (i) to support any
TPG claim of underpayment by CS or inaccuracy in the CS reports, or
(ii) to enforce TPG's rights under this Agreement. In the event any
such audit reveals a shortfall in any payment owing to TPG, then CS
shall pay
13
such shortfall amount to TPG within thirty (30) days of notice by TPG
to CS. Further, should any such shortfall exceed ten percent (10%) of
the proper amount due for the period audited, then in addition to
paying the amount of the shortfall, CS shall promptly (x) pay TPG
interest on the amount of the shortfall at the rate of Two Percent
over the Prime Rate of Bank One (as announced by Bank One) from the
date the payment was due until the amount is paid; and (y) reimburse
TPG for all reasonable costs of the audit. Nothing contained herein
shall be construed to limit or deny CS the right to contest the
conclusion of any audit performed under this Section 8C.
D. TPG shall pay CS a commission for each "trial offer" from TPG or its
affiliates accepted by a Program Participant, as follows:
(i) for the first 5000 Trial Offers per month accepted by Program
Participants: $0.00;
(ii) for all Trial Offers in excess of 5000 in any month accepted by
Program Participants: Twenty five Cents ($0.25) per trial offer.
All fees owing hereunder shall be paid to CS at the end of each calendar
quarter, no later than thirty (30) days after the end of the calendar quarter,
and shall be accompanied by a report of the number of "Trial Offers" (by Program
Participant) accepted by Program Participants in such calendar quarter.
E. Intentionally Deleted.
F. This Section 8 shall survive the expiration or termination of this
Agreement.
9. Relationship of the Parties. Neither CS nor TPG will have any authority to
---------------------------
bind the other by contract or otherwise to make representations as to the
policies and procedures of the other, other than as specifically authorized
by this Agreement. TPG and CS acknowledge and agree that the relationship
arising from this Agreement does not constitute or create a general agency,
joint venture, partnership, employee relationship or franchise between them
and that each is an independent contractor with respect to the services
provided by it under this Agreement.
10. Reports.
-------
A. CS will provide TPG with written or on-line reports relative to the
CS/TPG Category Page no later than the 15/th/ day of each month
containing the following information relative to the prior month: (i)
number of TPG Referrals that month; (ii) number of TPG Referred
Members enrolled in that month; (iii) number of TPG Program
Participants enrolled in that month; (iv) number of CS Program
Participants enrolled in that month; (v) total number of Program
Participants as of the end of the month (with a breakdown between CS
Program Participants and
14
TPG Program Participants); (vi) a list of all Program Services' offers
appearing on the CS/TPG Category Page in that month and the number of
clips on such offers; (vii) the number of TPG Program Participants
from each source identified in Sec. 1.N; and (viii) aggregate
demographic profiles of Program Participants. Cumulative information
in categories (i) - (viii) shall be provided at year end.
B. CS shall provide each Program Services' advertiser with written or on-
line reports about its Program Services' offers no later than the
15/th/ day of each month containing the following information about
the prior month (a copy of which shall be provided to TPG): the
aggregate number of Program Services' coupons clipped during the
previous month and a list of the categories (as per CS' category
groupings) from which the coupons were clipped.
11. No Consequential or Punitive Damages. NEITHER PARTY WILL BE LIABLE TO THE
------------------------------------
OTHER PARTY (NOR TO ANY PERSON CLAIMING RIGHTS DERIVED FROM THE OTHER
PARTY'S RIGHTS) FOR INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE
OR EXEMPLARY DAMAGES OF ANY KIND - INCLUDING LOST REVENUES OR PROFITS, LOSS
OF BUSINESS OR LOSS OF DATA - ARISING OUT OF THIS AGREEMENT (INCLUDING
WITHOUT LIMITATION AS A RESULT OF ANY BREACH OF ANY WARRANTY OR OTHER TERM
OF THIS AGREEMENT), REGARDLESS OF WHETHER THE PARTY LIABLE OR ALLEGEDLY
LIABLE WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE
POSSIBILITY THEREOF. PROVIDED HOWEVER, NOTHING CONTAINED HEREIN SHALL BE
CONSTRUED TO DENY OR LIMIT A PARTY'S RIGHT TO BE MADE WHOLE UNDER ANY
INDEMNIFICATION OBLIGATION UNDER SECTION 13, EVEN IF THE DAMAGE AMOUNT
AWARDED TO THE THIRD PARTY IN (AND ASSESSED AGAINST THE INDEMNIFIED PARTY),
OR INCURRED IN ANY SETTLEMENT OF, THE CLAIM FOR WHICH INDEMNIFICATION IS
REQUIRED UNDER THIS AGREEMENT INCLUDES INCIDENTAL, INDIRECT, CONSEQUENTIAL,
SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND - INCLUDING LOST
REVENUES OR PROFITS, LOSS OF BUSINESS OR LOSS OF DATA.
12. Confidentiality.
---------------
A. The Parties acknowledge and agree that the terms of this Agreement and
all information which is (i) proprietary to a Party, and (ii) provided
to or in connection with a Party's performance under this Agreement,
and (iii) marked "CONFIDENTIAL" at the time of tender to the other
Party, shall be considered confidential and proprietary information
("Confidential Information") and shall not be disclosed to any third
party without the prior written consent of the Party providing the
confidential Information ("Disclosing Party"), except as provided in
Section 12B. The parties acknowledge that the TPG Magazine
Subscription Lists
15
are confidential information of TPG, regardless of whether such lists
are marked "CONFIDENTIAL".
B. The Party receiving such Confidential Information ("Receiving Party")
shall use Confidential Information only for the purpose of performing
the terms of this Agreement and shall not accumulate in any way or
make use of Confidential Information for any other purpose. The
Receiving Party shall not disclose the Confidential Information to any
third party without the prior written consent of the Disclosing Party,
except for its officers, directors, employees, agents, affiliated
companies, and subcontractors who: (i) need to know such Confidential
Information to perform the Receiving Party's obligations or enforce
the Receiving Party's rights under this Agreement; and (ii) agree to
be bound by the provisions of this Section.
C. The obligations with respect to Confidential Information shall not
apply to Confidential Information that: (i) either Party or its
personnel already know at the time it is disclosed as shown by their
written records; (ii) is publicly known without breach of this
Agreement; (iii) either Party received from a third party authorized
to disclose it without restriction; (iv) either Party, its agents or
subcontractors, developed independently without use of Confidential
Information; (v) either Party is required by law, regulation or rule
(including but not limited to the rules and regulations of the
Securities Exchange Commission) to disclose, or (vi) either Party is
required by a valid court or governmental agency order to disclose, in
which case the Party receiving such an order must give notice to the
other Party, allowing them to seek a protective order.
D. Each Party agrees that any unauthorized use or disclosure of
Confidential Information may cause immediate and irreparable harm to
the Disclosing Party for which money damages may not constitute an
adequate remedy. In that event, each Party agrees that injunctive
relief may be warranted in addition to any other remedies the
Disclosing Party may have. In addition, the Receiving Party agrees
promptly to advise the Disclosing Party in writing of any unauthorized
misappropriation, disclosure or use by any person of the Confidential
Information which may come to its attention and to take all
commercially reasonable steps at its own expense reasonably requested
by the Disclosing Party to limit, stop or otherwise remedy any
misappropriation, disclosure or use by its own officers, directors,
representatives, subcontractors, affiliated companies, agents or
employees.
E. Upon either Party's demand, or upon the termination of this Agreement,
the Parties shall comply with each other's reasonable instructions
regarding the disposition of Confidential Information that may include
destruction (but not return, except as required by Section 5D herein
or any other section of this Agreement) of any and all Confidential
Information (including any copies or
16
reproductions thereof). Such compliance shall be certified in writing,
including a statement that no copies of Confidential Information have
been kept.
F. The obligations of this Section 12 shall survive the termination of
this Agreement for a period of two (2) years.
13. Indemnification.
---------------
A. CS shall indemnify, defend and hold TPG harmless from any and all
third-party claims, demands, liabilities, suits and proceedings
(including any brought in or before any court, government or
administrative body, arbitration panel or other tribunal) and any and
all expenses arising therefrom, including damages of any kind and
reasonable attorney's fees, on account of or arising out of CS'
negligence or tortious conduct, or any breach by CS of any
representation or warranty under this Agreement, or any breach of this
Agreement by CS, or acts or omissions by CS in discharging obligations
under this Agreement, or any violation by CS of the provisions of any
law, regulation, ordinance or rule of any governmental body or agency,
or any infringement or breach by CS of any right of any third party
(including but not limited to any infringement of any patent,
copyright or trademark, misappropriation, violations of privacy or
publicity rights) in connection with the Program (provided that such
infringement does not arise out of intellectual property owned,
controlled or supplied solely by TPG, including but not limited to TPG
marks or content). For purposes of Section 13A, TPG is defined as
TPG, Time Warner Inc., Time Inc., and all of their current (i.e.
existing at any time during the term of the Agreement) and former
parents, subsidiaries, divisions, affiliates, officers, directors,
employees, members, agents, attorneys and representatives.
B. TPG shall indemnify, defend and hold CS harmless from any and all
third-party claims, demands, liabilities, suits and proceedings
(including any brought in or before any court, government or
administrative body, arbitration panel or other tribunal) and any and
all expenses arising therefrom, including damages of any kind and
reasonable attorney's fees, on account of or arising out of TPG's
negligence or tortious conduct, or any breach by TPG of any
representation or warranty under this Agreement, or any breach of this
Agreement by TPG, or acts or omissions by TPG in discharging
obligations under this Agreement, or any violation by TPG of the
provisions of any law, regulation, ordinance or rule of any
governmental body or agency, or any infringement or breach by TPG of
any right of any third party (including but not limited to any
infringement of any copyright or trademark, misappropriation,
violations of privacy or publicity rights) in connection with the
Program (provided that such infringement does not arise out of
intellectual property owned, controlled or supplied solely by CS,
including but not limited to CS patents, marks or content). For
purposes of Section 13B, CS is defined as xxxxxxxxxxx.xxx inc., and
all of its current (i.e.
17
existing at any time during the term of the Agreement) and former
parents, subsidiaries, divisions, affiliates, officers, directors,
employees, members, agents, attorneys and representatives.
C. Promptly after receipt by an indemnified party under this Agreement of
notice of the commencement of any action, suit or proceeding, such
indemnified party shall, if a claim in respect thereof is to be made
against an indemnifying party under this Agreement, notify each party
against whom indemnification is to be sought in writing of the
commencement thereof (but the failure so to notify an indemnifying
party shall not relieve it from any liability which it may have under
this Agreement except to the extent that it has been prejudiced in any
material respect by such failure or from any liability which it may
have otherwise). In case any such claim, demand, liability, suit or
proceeding is brought against any indemnified party, and it notifies
an indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein. The indemnified party
may elect, by written notice delivered to the indemnifying party, to
require the indemnifying party to assume the defense thereof with
counsel reasonably satisfactory to such indemnified party.
Notwithstanding the foregoing, the indemnified party shall have the
right to employ its or their own counsel in any such case. Anything
in this Agreement to the contrary notwithstanding, an indemnifying
party shall not be liable for any settlement of any claim or action
effected without its written consent, provided that such consent was
not unreasonably withheld or delayed. An indemnifying party will not,
without the prior written consent of the indemnified party, settle,
compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, investigation, inquiry, suit or
proceeding in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified party is an actual or
potential party to such claim or action), unless such settlement,
compromise or consent (x) includes a dismissal with prejudice of the
litigation being settled, or an unconditional release of each
indemnified party from all liability arising out of such claim,
demand, liability, suit or proceeding, and (y) does not include a
statement as to or an admission of fault, culpability or a failure to
act by or on behalf of any indemnified party.
14. Warranties
----------
A. CS hereby represents and warrants that:
(i) it has all requisite corporate power and authority to enter into this
Agreement and carry out the transactions contemplated hereby;
(ii) the execution, delivery and performance of this Agreement and
consummation of the transactions contemplated hereby have been duly
authorized by all requisite corporate
18
action and does not violate any agreement which CS is bound by or any law,
rule or regulation to which CS is subject.
B. TPG hereby represents and warrants that:
(i) it has all requisite corporate power and authority to enter into this
Agreement and carry out the transactions contemplated hereby; and
(ii) the execution, delivery and performance of this Agreement and
consummation of the transactions contemplated hereby have been duly
authorized by all requisite corporate action and does not violate any
agreement which TPG is bound by or any law, rule or regulation to which TPG
is subject.
C. EXCEPT AS EXPRESSLY PROVIDED HEREIN: (i), NEITHER PARTY WARRANTS THAT
THE TPG WEB SITEOR THE CS WEB SITE (INCLUDING THE CS/TPG CATEGORY
PAGE), AS THE CASE MAY BE, WILL PERFORM IN THE MANNER EXPECTED OR
WITHOUT INTERRUPTION, ERROR OR DEFECT; AND (ii) NEITHER PARTY MAKES
ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WARRANTIES
OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
15. Insurance.
----------
A. CS shall maintain (1) commercial general liability ("CGL") insurance
covering all of its business activities, and either: (2) a specific
endorsement to the CGL providing personal and advertising injury
coverage for all of CS' business activities; or (3), Internet, media,
--
advertiser's, or similar professional liability insurance, covering
all of CS' business activities and responding to claims for copyright
and trademark infringement, invasion of privacy, defamation (including
libel, slander, and any other forms), and misappropriation of
advertising ideas or style of doing business. All policies required
hereunder shall provide limits of not less than $1,000,000 per
occurrence, shall include TPG as an additional insured, shall be
primary with respect to any other insurance maintained on behalf of
TPG, and shall be underwritten by insurers with A.M. Best ratings of
not less than A-, XIII. CS shall provide TPG with certificates of
insurance evidencing the coverages required hereunder (including
specific reference to CS' business activities) prior to the Launch
Date, and, upon request, shall submit copies of the complete policies.
B. TPG shall maintain (1) commercial general liability ("CGL") insurance
covering all of its business activities, and either: (2) a specific
endorsement to the CGL providing personal and advertising injury
coverage for all of TPG's business
19
activities; or (3), Internet, media, advertiser's, or similar
--
professional liability insurance, covering all of TPG's business
activities and responding to claims for copyright and trademark
infringement, invasion of privacy, defamation (including libel,
slander, and any other forms), and misappropriation of advertising
ideas or style of doing business. All policies required hereunder
shall provide limits of not less than $1,000,000 per occurrence, shall
include CS as an additional insured, shall be primary with respect to
any other insurance maintained on behalf of CS, and shall be
underwritten by insurers with A.M. Best ratings of not less than A-,
XIII. TPG shall provide CS with certificates of insurance evidencing
the coverages required hereunder (including specific reference to
TPG's business activities) prior to the Launch Date, and, upon
request, shall submit copies of the complete policies.
16. Notices. Any notices relating to this Agreement shall be given in writing
-------
and shall be deemed sufficiently given, served, and received for all
purposes upon the first to occur of actual receipt, or delivery by
generally recognized overnight courier service, or by facsimile
transmission (with the original subsequently delivered by other means
permitted by this Agreement, although the effective date of such notice
shall be the date of such facsimile transmission provided the original is
subsequently delivered as provided herein), or three (3) days after deposit
in the United States Mail, certified or registered, return receipt
requested, with postage prepaid, addressed as follows:
CS TPG
-- ---
xxxxxxxxxxx.xxx inc. The Parenting Group Inc.
0000 Xxxx Xxxxxxx Xxxx 1325 Avenue of the Americas
Suite 100 New York, New York 10010
Xxxxxxx, Xxxxxxxx 00000 Attention: President
Attn: General Counsel Fax: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Time Inc.
Law Department
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Senior V.P., General Counsel, and
Secretary
17. Modification/Waiver. No provision of this Agreement may be altered,
-------------------
amended and/or waived, except by a written document signed by both parties
hereto setting forth such alteration, amendment, and/or waiver. The
parties hereto agree that the failure to enforce any provision or
obligation under this Agreement shall not constitute a waiver thereof or
serve as a bar to the subsequent enforcement of such provision or
obligation or any other provisions or obligation under this Agreement.
20
18. Severability. The provisions of this Agreement shall be deemed severable,
------------
and the invalidity or unenforceability of any one or more of the provisions
hereof shall not affect the validity and enforceability of the other
provisions hereof.
19. Joint Drafting. Each of the parties hereto has joined in and contributed
--------------
to drafting this Agreement; there shall be no presumption favoring or
burdening any one or more parties hereto based upon draftsmanship.
20. Approvals/Disapprovals. Other than as set forth elsewhere in this
----------------------
Agreement, all approvals, consents or disapprovals required under this
Agreement shall be given in writing within five (5) business days of a
party's receipt of the item requiring its approval, consent, or
disapproval. Other than as set forth elsewhere in this Agreement, a
party's failure to provide the other party with written consent or approval
of any item within the required period shall be deemed a rejection or
disapproval of such item.
21. Assignment. Neither party may assign or transfer any of its rights or
----------
obligations under this Agreement without the prior written consent of the
other party; provided however, in the event TPG desires to assign or
transfer such rights or obligations to one of its affiliates, then: (i) TPG
shall notify CS in writing of the identity of the affiliate and request CS'
consent to such assignment; (ii) CS shall, in writing to TPG, consent or
decline to consent within thirty (30) days of the date of CS' receipt of
TPG's request for consent, provided that CS' consent shall not be
unreasonably withheld (and CS' failure to respond within said 30 day period
shall be deemed a consent by CS); and (iii) should CS timely decline in
writing to consent, then, for a period of thirty (30) days from the date of
TPG's receipt of such declination, TPG shall be entitled to terminate this
Agreement, effective immediately upon CS' receipt of written notice of such
termination from TPG.
22. Survival. The provisions of Sections 2.C, 6.B, 6.D, 7, 8, 10 (to the
--------
extent necessary to wind up the parties' obligations only), 11, 12, 13, 14
and 15 survive the expiration or termination of this Agreement.
23. Entire Agreement. This Agreement (including Exhibits A-G attached hereto)
----------------
constitutes the entire agreement between the parties hereto and contains
all of the agreements between said parties with respect to the subject
matter hereof. There is no statement, promise, agreement, or obligation in
existence which may conflict with the terms of this Agreement or may
modify, enlarge, or invalidate this Agreement or any provision hereof.
None of the prior and/or contemporaneous negotiations, preliminary drafts,
or prior versions of this Agreement leading up to its execution and not set
forth herein shall be used by any of the parties to construe or affect the
validity of this Agreement. Neither party shall be liable for any breach
of this Agreement (other than for breach of payment obligations) resulting
from strikes, work stoppages, riots, accidents, fires, Acts of God or any
other circumstances not within that party's control. The headings
contained in this Agreement are for reference purposes only and shall not
affect in any way the meaning or interpretation of this
21
Agreement. This Agreement may be executed in 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. Facsimile signatures shall have
the same force and effect as original signatures. Each party acknowledges
that no representation, inducement or condition not set forth herein has
been made or relied upon by either party. Further, this Agreement
supersedes any and all other agreements, either oral or in writing, between
the parties hereto with respect to the subject matter hereof.
22
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
XXXXXXXXXXX.XXX INC.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxx
----------------------------
Title: Chairman/CEO
----------------------------
THE PARENTING GROUP INC.
By: /s/ Xxxx Xxxxxx
------------------------------
Name: Xxxx Xxxxxx
-----------------------------
Title: President/CEO
---------------------------
23
EXHIBIT A
[GRAPHIC]
enroll now and
start saving!
Dear shopper,
CoolSavings is the place for BIG savings One minute to enroll
from your favorite strore, online merchants, will get you a lifetime of savings!
restaurants and travel companies.
[GRAPHIC]
enable secure enrollment
[GRAPHIC] First Name*
Enroll now to receive great
Thanksgiving savings.
Last Name*
Lifetime membership and unlimited use of
CoolSavings is FREE! Your privacy is
guaranteed. Enroll now and join over 4 Address
million other smart shoppers.
o FREE lifetime membership City
o FREE unlimited use of CoolSavings!
Already a Member? Click Here to login State Zip* Area Code*
Select
[GRAPHIC] Your Gender*
Select
[GRAPHIC] CoolKids?
Enter your kids information below
and you'll be enrolled to
receive exclusive CoolKids
savings offers(coming soon!)
date of birth gender
*Babies' and Children's Items month day year
*Books, Games and Music Select Select
*Clothes and Accessories
*Computers and Electronics Select Select
*Groceries and Fresh Food
*Health and Beauty Items Select Select
*Home, Bed and Bath Items
*Office Needs __ you may share my household
*Restaurants information with The Parenting
*Sports, Fitness and Nutrition Group Inc.
and more...
Birthday
*Laser, ink or bubble jet printer required. Select
Please note that the savings currently month day year
offered on CoolSavings are for use in the
USA only.
E-mail Address*
Periodic e-mail offers from
xxxxxxxxxxx.xxx?
yes, with graphics(HTML)
tell me more [GRAPHIC]
Create Password*
EXHIBIT B
CoolKids Program
--------------------------------------------------------------------------------
Program Features
--------------------------------------------------------------------------------
CoolKids * Company Name Placement -- Text link in pulldown menu
Program * More Info Page -- Branding, logo and offer description
Exclusively for * Advertiser Results Showcase -- When 3+ offers are
members of CoolKids available, logo and text on page
* Advertiser Squeals -- Targeted offers will be prioritized
in category Squeals box
* Shared Monthly E-mail -- Offers will be highlighted
with text link in shared e-mail
* Optional Free Stuff -- Targeted offers will be prioritized
in category Free Stuff
* 0ptional Solo E-mail -- Branded HTML and text e-mail
targeted to child age group.
--------------------------------------------------------------------------------
Position & Placement
--------------------------------------------------------------------------------
Position & The CoolKids program will be promoted on the CoolSavings
Placement homepage to users who have been identified as Young Parents
-- aged 26 to 39 with children. The Parenting and CoolKids
logos and content will be featured on the Babies & Children
Category Page and highlighted offers will appear in category
Squeals, Free Stuff and site-wide results pages only for our
members who have provided the DOB of their children. There
will also be a link to value-added content provided by The
Parenting Group and select advertisers. These offers and the
content will be highly targeted.
--------------------------------------------------------------------------------
Targeting and Prioritization
--------------------------------------------------------------------------------
Child's DOB Date of Birth
CoolKids Age Groups (Prioritized by profile matching and age):
Prenatal -- Family Planning to 6 months
Baby -- 6 to 12 months
Young Toddler -- 12 to 24 months
Older Toddler -- 2 to 4 years
School-Aged -- 4 to 9 years
Pre-Teens --9 to 12 years
--------------------------------------------------------------------------------
Reporting
--------------------------------------------------------------------------------
Schedule Daily results are refreshed within 48 hours on the web
--------------------------------------------------------------------------------
Response By offer and target, views of each more info page, clips of
Information each coupon and click through to advertiser's site
--------------------------------------------------------------------------------
Demographic Profile An aggregate profile of all respondents.
--------------------------------------------------------------------------------
CoolKids Rates
CoolKids Program - with up to 5 offers
site exposure and a monthly e-mail to CoolKids members
----------------------------------------------------------
Quarterly Offers and
Quarter Membership Average Shared E-mail
----------------------------------------------------------
60.00 CPM/mo
==========================================================
Jan.-Mar/00 200 TO 280 240 16,560
----------------------------------------------------------
April-June 280 TO 350 315 21,735
----------------------------------------------------------
July-Sept 350 TO 410 380 26,220
----------------------------------------------------------
Oct--Dec 410 TO 470 440 30,360
----------------------------------------------------------
There is a $5,000 minimum charge per month per advertiser for CoolKids
participation.
There is a 50% discount for CoolKids Offers and Monthly Shared E-mail if an
advertiser purchases CoolOffers Single Channel concurrently
Term Discounts: Advertisers who commit to 4, 6 and 12 month agreements will
receive 10%, 15% and 20% discounts, respectively.
CoolKids FreeStuff and E-Mail Rates -- Target on Child's DOB
FreeStuff
-------------------------------------
Cost per Qualified Lead Each
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E-mail and name $3.45
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Name, address & e-mail $5.75
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Additional questions $ .35
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10% discount with $50,000 commitment
2,500 minimum monthly lead commitment
Targeted Direct E-Mail
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Minimum monthly Maximum Open Rate Min. Monthly
quantity Versions (CPM) Cost
----------------------------------------------------------------
50,000 2 $345.00 $17,250
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100,000 3 $284.28 $28,428
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250,000 4 $267.72 $66,930
----------------------------------------------------------------
500,000+ 5 $249.78 $124,890
----------------------------------------------------------------
$10,000 minimum monthly commitment, 20% surcharge for HTML format, term
discounts apply
EXHIBIT C
[GRAPHIC]
xxxxxxxxxxx.xxx inc
0000 Xxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xx 00000-0000
Tel: 000 000 0000
Fax: 000 000 0000
Advertising Agreement
Order From: Xxxx [ ] Advertiser:(if different) Xxxx [ ]
-------------------------------- -----------------------------------------
Business Name Business Name
-------------------------------- -----------------------------------------
Contact Name Contact Name
-------------------------------- -----------------------------------------
Address Address
-------------------------------- -----------------------------------------
City/State/Zip City/State/Zip
-------------------------------- -----------------------------------------
Telephone Telephone
-------------------------------- -----------------------------------------
Fax Fax
-------------------------------- -----------------------------------------
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Effective Dates Description Monthly Rate Total
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Special Remarks:
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This agreement for advertising ('Agreement') is made by CoolSavings, Inc.
("CSI") and the undersigned advertiser ("Advertiser"). Advertiser has read
and understands this entire agreement including, but NOT LIMITED TO THE
TERMS AND CONDITIONS ON THE REVERSE SIDE and hereby place the following
advertising space.
--------------------------------------------------------------------------------
/ / / /
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Signed for the Advertiser Date Signed for CoolSavings Date
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Name(Print) Name(Print)
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Title Title
EXHIBIT D
XX Xxxxx
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Docket Number Status Trademark Name
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TM1155 Registered DINELINE
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TM1156 Registered EVENTSLINE
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TM1204 Abandoned INTERACTIVE COUPON NETWORK
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TM1216 Registered COOLSAVINGS
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TM1216AU Registered COOLSAVINGS
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TM1216CA Pending COOLSAVINGS
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TMI216UK Registered COOLSAVINGS
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TM1282 Registered COOLTRAVEL
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TM1312 Registered COOLMALLS
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TM1322 Registered COOLCATALOGS
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TM1323 Registered COOLSAMPLES
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TM1447 Published MISC DESIGN (Piggy Bank)
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TM1500 Pending COOLDINING
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TM15O1 Pending COOLNEIGHBORHOOD
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TM1502 Pending COOLGROCERS
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TM1503 Pending COOLSUPERMARKETS
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TM1504 Pending COOLSCHOLLS
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TM1505 Pending COOLCAMPUS
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TM1506 Pending COOLEVENTS
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TM1507 Pending COOLCOLLEGES
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TM1508 Pending CLIP HERE NOW
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TM1509 Pending SAVINGSCENTER
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TMI51O Pending COOLSAVINGS COUPON MANAGER
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TM1530 Published SQUEALS OF THE DAY
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TM1588 Pending Save. Then Shop.
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TM1592 Pending COOLCASH
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TM1593 Pending COOLSTAMPS
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TM1594 Pending COOLGREENSTAMPS
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[GRAPHIC]
[GRAPHIC]
[GRAPHIC]
[GRAPHIC]
EXHIBIT E
Advertising Deliverables
1. Six (6) ads annually, minimum full page in size, in the
following magazines: Parenting; Baby talk; and Family
Life; which satisfy the following conditions: (i) at least
one (1) ad to appear in each of said magazines each year;
and (ii) at least one (1) ad to appear m each calendar
quarter each year.
2. One (1) ad, minimum 1/2 page in size, to appear in any one printing
of Healthy Pregnancy once each year.
3. The inclusion of CS/TPG advertising flyers (the production cost
and delivery cost to First Moments Inc. of which shall be split
equally by CS and TPG), each year, in 1.2 million samples/coupons
kits that TPG will distribute to expectant or new parents through
First Moments Inc., provided that such flyers: (i) are delivered to
First Moments in accordance with its shipping schedules; and (ii)
satisfy the following size and weight requirements:
8.5 x 11 inches on a maximum 70 lb. paper, folded
The content and design of the advertising deliverables referenced in
Paragraphs 1, 2 and 3 above shall be created by CS but shall require the
approval of TPO (which will not be unreasonably withheld or delayed), and
shall be subject to the terms and conditions of the respective TPG magazine
rate cards, attached as Exhibit F, and the distribution policies of First
Moments, attached as Exhibit G, except:
(i) the advertising rates for set forth on the rate cards shall not
apply to this Agreement as CS is not required to pay for the
advertising it is to receive under this Agreement; and
(ii) the terms and conditions of this Agreement shall control in
the event of any conflict or ambiguity between the terms of this
Agreement and the terms and conditions of any rate card or
distribution policies. By way of example but not limitation,
wherein a rate card provides that the advertiser's sole remedy in
the event its ad is not placed is the refund of monies paid for the
ad, such provision shall not apply to this Agreement. Rather, TPG's
failure to provide CS with the advertising it is entitled to
receive under this Agreement shall be a breach of this Agreement
and CS shall be entitled to all remedies for such breach as
provided by the terms of this Agreement.
Upon written request from CS, TPC will provide CS with reasonable
supporting documentation of its satisfaction of its obligations under this
Exhibit E.
29692
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