CONTENT DISTRIBUTION CO-BRAND AGREEMENT
This Co-Brand Agreement ("Agreement") is entered into as of September 12, 2000,
("Effective Date") by and between XxXxxxxx.xxx, Inc., a corporation duly
organized under the laws of the State of Delaware with its principal place of
business at 000 Xxxx 0000 Xxxxx, Xxxxx, Xxxx 00000, ("MyFamily") and
XxxxxxXxxx.xxx International, Inc. a corporation duly organized under the laws
of the State of Delaware, with its principal place of business at 00000 Xxxxx
000 Xxxx, Xxxxx 000, Xxxx Xxxx Xxxx, Xxxx 00000 ("SportsNuts").
WITNESSETH:
WHEREAS, MyFamily owns and maintains the Internet site known as XxXxxxxx.xxx
with tools and content dedicated to connecting and strengthening families
through the Web.
WHEREAS, SportsNuts hosts and maintains an Internet service known as
XxxxxxXxxx.xxx dedicated to providing amateur sports information and services.
WHEREAS, MyFamily and SportsNuts desire to create a Co-Branded service that
offers services of MyFamily to Users of SportsNuts, wish to distribute
MyFamily's content through XxxxxxXxxx.xxx, and establish links between
SportsNuts and the Co-Branded Area.
NOW, THEREFORE, for good and valuable consideration, and in consideration of the
mutual covenants and conditions herein set forth, MyFamily and SportsNuts hereby
agree as follows:
Article 1 DEFINITIONS
1.1 Co-Branded Area means co-branded web pages, created by MyFamily
and SportsNuts with each parties' respective branding that
displays the Content, tools and resources, as further described
herein.
1.2 Content means content and tools owned or controlled by MyFamily.
1.3 Launch Date has the meaning set forth in Section 4.1.
1.4 Link means a graphical and/or textual object that takes a User
directly to another web site or area within the current site.
1.5 Membership Data means all information submitted by a User in
the process of registering for any of MyFamily services.
1.6 SportsNuts Competitor means an entity that directly or indirectly
competes with SportsNuts, as listed in Exhibit B that may be
updated from time to time.
1.7 Net Advertising Revenue means gross advertising revenue received
by MyFamily for advertising sold on the Co-Branded Area, less
costs, which are set at a flat twenty percent (20%).
1.8 Opt-In means the Users choice of sharing data, receiving email
communications or other services available from MyFamily or
SportsNuts. Users may 'opt-out' at any time to cancel opt-in
choices.
1.9 SportsNuts Content means any content on the Co-Branded Area that
has been authored, created and/or made available by SportsNuts in
wrappers, jump pages, shared results of surveys or any other such
integration.
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1.10 XxxxxxXxxx.xxx is the Internet site located at
xxx.XxxxxxXxxx.xxx and/or such other successor, extension or
replacement site(s) as may be designated by SportsNuts.
1.11 Trademarks means trademarks, trade names, service marks, logos
and representations of the foregoing.
1.12 Users means individuals or entities that access XxxxxxXxxx.xxx.
Co-Branded Area Users means individuals that use the Co-
Branded Area of XxxxxxXxxx.xxx.
Article 2 OBLIGATIONS OF MYFAMILY
2.1 Launch Schedule. Prior to the Launch Date and based upon a
mutually agreed upon schedule as described in Exhibit A herein,
MyFamily will design, create and host the Co-Branded version of
the complete XxXxxxxx.xxx services incorporating the Content.
2.2 Advertising. MyFamily will initially sell and serve all
advertising on the Co-Branded Area. MyFamily will not sell
advertising to SportsNuts Competitors as listed in Exhibit B.
MyFamily will pay SportsNuts a share of Net Advertising
Revenues according to Section 6.3 herein. MyFamily
will provide to SportsNuts quarterly Advertising Revenue
reports as required for payments further defined in Article 6.
SportsNuts will have the opportunity to propose selling
locally targeted advertising in the Co-Branded Area,
subject to SportsNuts payment of applicable engineering
costs and technical review by MyFamily's development group.
2.3 Premier Partner. During the term of this Agreement, MyFamily will
give SportsNuts premier status as a co-branded partner for
amateur sports.
2.4 Future Channel Services. Should MyFamily determine to create and
add a Sports Channel to its XxXxxxxx.xxx services, SportsNuts
will be the exclusive partner for amateur sports on that channel.
The parties agree that any such relationship shall be subject to
the negotiation and approval of both parties.
2.5 Co-Brand Maintenance. MyFamily will have the sole
responsibility for aggregating and maintaining its Content and
the Co-Branded Area.
2.6 Reporting. MyFamily will provide SportsNuts with reports listing
Co-Branded Area traffic metrics and relevant User statistics on
a monthly basis.
Article 3 OBLIGATIONS OF SPORTSNUTS
3.1 Placement. SportsNuts will use MyFamily branding on the
XxxxxxXxxx.xxx homepage to feature, promote, and encourage
participation in the Co-Branded Area, and direct its Users to the
Co-Branded Area as a family connectivity site. SportsNuts will
feature the Co-Branded Area exclusively as its premier family
internet services on the SportsNuts site.
3.2 Co-Brand Maintenance. SportsNuts will provide branding elements
and support resources to ensure the proper functioning of the
Co-Branded Area.
3.3 Reporting. SportsNuts will provide MyFamily with a quarterly
report (unless requested more frequently) listing the page views
generated by the Co-Branded Area Users in comparison to the page
views generated by SportsNuts Users.
Article 4 THE CO-BRANDED APPLICATION
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4.1 General. MyFamily and SportsNuts will integrate Content with
prominence and display Content on the Co-Branded Area as
described herein. The date the Co-Branded Area are first
generally available to Users on the world wide web is referred to
herein as the "Launch Date" and the Launch Date shall occur no
later than ninety (90) days from the Effective Date. The parties
may add additional features to the Co-Branded Area as described
in Exhibit A and as mutually agreed upon.
4.2 Hosting; Content Updates; Co-Branded Area Attributes. MyFamily
will host the Co-Branded Area through SportsNuts' framed set on
MyFamily servers at the URL substantially similar to
xxx.XxXxxxxx.XxxxxxXxxx.xxx. The page views and reach credit for
the Co-Branded Area will be recognized and credited to
SportsNuts. The Co-Branded Area will be no more than one click
away from SportsNuts home page.
4.3 Branding; "Look & Feel;" Advertising. Each Co-Branded Page will
have the names and/or brands of both MyFamily and SportsNuts,
prominently placed, above-the-fold, in substantially equivalent
location, size and prominence. The "look and feel" and branding
of the Co-Branded Area will be consistent with the "look and
feel" and branding displayed on XxXxxxxx.xxx. The Co-Branded Area
is intended to substantially mirror XxXxxxxx.xxx. MyFamily will
work with SportsNuts to determine the display, appearance and
placement of advertising on the Co-Branded Area and additional
marketing opportunities that will support the Co-Branded Area.
The Co-Branded Area will include MyFamily's copyright notice and
a link to MyFamily's privacy policy and terms and conditions.
4.4 User Data Ownership. All Users will register with MyFamily
through the Co-Branded Area to enjoy the complete functionality
of the Co-Branded Area. Membership Data obtained via the
Co-Branded Area will be the property of MyFamily. MyFamily will
share such User Data with SportsNuts, subject to receiving
Co-Branded Area Users' permission to share such Membership Data,
and subject to each parties' privacy policy. SportsNuts will
ensure that its privacy policy applicable to the Co-Branded Area,
to the extent applicable to its performance under this Agreement
is consistent with MyFamily's privacy policy. Both parties agree
to work towards determining further Membership Data usage.
MyFamily reserves the right to derive, from any Membership Data
transmitted through the Co-Branded Area, aggregate or statistical
information.
4.5 Other Obligations.
a) Relationship Manager. To ensure that the Co-Branded Area is
implemented timely and effectively maintained, each party will
appoint a contact to manage the relationship between MyFamily
and SportsNuts. Until a party provides notice otherwise to the
other party, the contacts shall be as follows:
SportsNuts: MyFamily:
-------------------------------- ------------------------------
Telephone No.: ---------------- Telephone No.: ---------------
Email Address: ----------------- Email address----------------
b) Reports. MyFamily will be responsible for tracking
and reporting to SportsNuts the number of Co-Branded
Area Users, the number of page views on the
Co-Branded Area and such other information as
SportsNuts reasonably requests related to Co-Branded
Area Users and usage of the Co-Branded Area as long
as such requests relate to information readily
available to MyFamily. MyFamily will report such
information on a quarterly basis unless requested
more frequently by SportsNuts.
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c) Resources. Both parties will use commercially reasonable
efforts to provide sufficient resources in order to deliver
the Content to be displayed on the Co-Branded Area, in order
to launch the Co-Branded Area in a timely manner according to
the Schedule outlined in Exhibit A.
4.6 Costs. Each party will be responsible for its respective costs
related to Content and the Co-Branded Area.
Article 5 LICENSE
5.1 Grant of License by MyFamily. Subject to the terms and conditions
of this Agreement, MyFamily hereby grants to SportsNuts, a
fully-paid, worldwide, non-exclusive, and royalty-free right and
license to use, reproduce, adapt, incorporate, integrate and
distribute the Content and a license and right to use MyFamily's
Trademarks as reasonably necessary with respect to the display
and use of the Content provided that any use of such Content
shall reasonably conform with the terms of this Agreement;
provided, further that SportsNuts shall not integrate Content
from the Co-Branded Area without MyFamily's consent except to
promote or designate the Co-Branded Area. The parties acknowledge
and agree that the foregoing license is a limited license during
the term of the Agreement for the sole purposes of providing and
promoting the Content to Users through XxxxxxXxxx.xxx and is not
intended to comprise a sublicense by MyFamily of any specific
third party content on any MyFamily site.
5.2 Grant of License by SportsNuts. Subject to the terms and
conditions of this Agreement, SportsNuts hereby grants to
MyFamily a limited, worldwide, non-exclusive, royalty-free
license to use SportsNuts related Trademarks and other
branding/framing and SportsNuts Content solely on the Co-Branded
Area or as otherwise expressly approved in writing by SportsNuts.
Article 6 FEES AND PAYMENTS
6.1 Development Fee. In consideration of MyFamily's development and
hosting the Co-Branded Area, SportsNuts will pay MyFamily One
Hundred Thousand Dollars ($100,000) in two (2) equal payments of
Fifty Thousand Dollars ($50,000) each, with the first payment due
upon the execution of this Agreement and the second payment due
upon the Launch Date of the Co-Branded Area.
6.2 Maintenance Fee. In consideration of MyFamily's hosting and
maintaining the Co-Branded Area, SportsNuts will pay MyFamily a
maintenance fee of Fifty Thousand Dollars ($50,000) due sixty
(60) days after the Launch Date of the Co-Branded Area. Should
this Agreement be extended beyond the initial one (1) year term,
the maintenance fee will be renegotiated based upon traffic to
the Co-Branded Area.
6.3 Advertising Revenue Share. MyFamily will retain Fifty percent
(50%) of the Net Advertising Revenues received by MyFamily from
advertising on the Co-Branded Area and will remit Fifty percent
(50%) of such Net Advertising Revenues to SportsNuts. MyFamily
will make such payments to SportsNuts within thirty (30) days
after the end of the quarter during which such Net Advertising
Revenue was earned. All Revenue Share payments will be
accompanied by a report that includes the Net Advertising Revenue
received during such quarter and the calculation of corresponding
Revenue Share.
6.4 Payment Terms. MyFamily and SportsNuts will make payments to
the other in the amounts specified herein and will send payments
to the following:
If to SportsNuts: If to MyFamily:
Attn: Accounts Receivable - Xxxxx Xxxxxxx Attn: Accounts Receivable
XxxxxxXxxx.xxx XxXxxxxx.xxx, Inc.
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00000 Xxxxx 000 Xxxx, Xxxxx 000 000 Xxxx 0000 Xxxxx
Xxxx Xxxx Xxxx, XX 00000 Xxxxx, XX 00000
6.5 Audits. Either party (the "Auditing Party") shall have the
right to retain a U.S. nationally prominent or other mutually
agreeable independent auditor, at its own expense, to whom the
other party (the "Audited Party") shall allow reasonable access
to the Audited Party's applicable books of account and other
records for the purpose of verifying the amounts due and payable
to the Auditing Party under this Agreement. Access to the
Audited Party's documentation shall be during the Audited Party's
regular business hours upon at least fifteen (15) business days
prior written notice. In the event that an audit discloses a
discrepancy between the amounts due and the amounts paid, the
party benefiting from such discrepancy will promptly remit the
amount of the discrepancy to the other party. In the event
that an audit discloses an underpayment by the Audited Party of
more than five percent (5%) of the amount due to the Auditing
Party, the Audited Party shall immediately pay to the Auditing
Party the amount of such underpayment and shall pay the reason-
able costs of such audit. Neither party may exercise the audit
right described herein more than once every twelve (12) months
unless the immediately preceding audit has revealed an under-
payment of more than five percent (5%).
Article 7 CONFIDENTIAL INFORMATION
7.1 Disclosures. Either MyFamily or SportsNuts may disclose to the
other (the "Receiving Party") certain information that the
disclosing party deems to be confidential and proprietary,
including technical and other business information of the
disclosing party that is not generally available to the public
("Confidential Information").
7.2 Obligations of Receiving Party. 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 (i) keep confidential such
Confidential Information that 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 to be disclosed by law or judicial process,
including filings required of a public company.
7.3 Limitations. 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, investment, financial
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.
Article 8 REPRESENTATIONS AND WARRANTIES
8.1 MyFamily. MyFamily represents, warrants and covenants to
SportsNuts that it is the owner of the Content and/or has the
right to grant the rights hereunder. MyFamily represents,
warrants and covenants to SportsNuts that it holds the necessary
rights to permit the use of the Content by SportsNuts for the
purpose of this Agreement; that its entry into this Agreement
does not violate any agreement with any other party; that its
performance under this Agreement will conform to applicable laws
and government rules and regulations.
8.2 SportsNuts. SportsNuts represents, warrants and covenants to
MyFamily that its entry into this Agreement does not violate any
agreement with any other party and that SportsNuts Content 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,
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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 anti-discrimination 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, national or international laws.
Article 9 LIMITATION OF LIABILITY; DISCLAIMER
9.1 NO CONSEQUENTIAL DAMAGES. EXCEPT FOR EITHER PARTY'S LIABILITY FOR
THIRD PARTY CLAIMS AS SPECIFIED IN ARTICLE 13, OR EITHER PARTY'S
BREACH OF ARTICLE 7, OR DAMAGES ARISING FROM PERSONAL INJURY, IN
NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY
SPECIAL, INDIRECT, CONSEQUENTIAL 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 EITHER PARTY AND REGARDLESS
OF WHETHER SUCH LIABILITY SOUNDS IN CONTRACT, NEGLIGENCE, TORT,
STRICT LIABILITY OR ANY OTHER THEORY OF LIABILITY.
9.2 DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN ARTICLE 8, NEITHER
PARTY MAKES ANY, AND EACH PARTY ACKNOWLEDGES THAT THE OTHER HAS
NOT MADE ANY, AND HEREBY SPECIFICALLY DISCLAIMS ANY,
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE
CO-BRANDED AREA, THE PARTY CONTENT, OR THE OPERATION OF THE PARTY
CONTENT ON THE CO-BRANDED AREA, INCLUDING, BUT NOT LIMITED TO ANY
IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE.
Article 10 TERM AND TERMINATION
10.1 Term. This Agreement shall be effective on September 12, 2000,
("Effective Date") and shall continue in force for an initial term ending
September 11, 2001 ("the Initial Term"). This Agreement will automatically renew
for successive one (1) year terms unless notice of termination is given by
either party within sixty (60) days prior to the end of the current term.
10.2 Termination.
a) For Convenience. After the Initial Term, either party may
terminate this Agreement at any time for convenience and
without cause upon sixty (60) days prior written notice to the
other party.
b) For Breach. Either party may terminate this Agreement
if the other party materially breaches its
obligations under this Agreement and such breach
remains uncured for thirty (30) days following
written notice to the defaulting party of the breach.
c) Following Force Majeure Event. Either party may terminate in
the event of an ongoing force majeure event as expressly set
forth herein.
10.3 Performance and Operation. If the Co-Branded Area does not meet
Performance and Operation Standards outlined in Exhibit C (which
shall be measured by MyFamily), and such failure is not due to
force majeure events or the failure of any third party services,
hardware, software or
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telecommunications systems not controlled by SportsNuts (a
"Performance Failure"), MyFamily shall notify SportsNuts in
writing and SportsNuts shall cure the breach within twenty four
(24) hours. If such performance standards are not met as a result
of SportsNuts' failure, MyFamily shall notify SportsNuts in
writing and SportsNuts shall cure the breach within twenty four
(24) hours. In the event of more than three (3) Performance
Failures pursuant to this Agreement in any thirty (30) day
period, MyFamily shall have the right to terminate immediately,
without providing further opportunities to cure.
10.4 Survival. The following provisions of this Agreement shall
survive the termination or expiration of this Agreement: Article
6 (as to fees accrued prior to termination or expiration);
Article 7, Article 8 (as to claims arising prior to termination
or expiration or claims based on events arising prior to
termination or expiration), Sections 10.4 and 10.5, Section 12.1,
Article 13, and Article 14.
10.5 Return of Materials. Upon the termination or expiration of this
Agreement, each party shall (a) promptly return or destroy all
Confidential Information, and other information, documents,
manuals and other materials belonging to the other party, except
as may be otherwise provided in this Agreement; and (b) promptly
remove the other party's content, branding, links, and any other
material provided under this Agreement.
Article 11 FORCE MAJEURE
11.1 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
that lasts longer than fifteen (15) days, the party not
experiencing the force majeure event may terminate this Agreement
upon written notice to the other party.
Article 12 ADVERTISING AND PROMOTION; PUBLICITY
12.1 Press Releases. Neither party will make any public statement,
issue any press release or make or release any other type of
announcement or statement relating to the terms or existence of
this Agreement without the prior written approval of the other,
such approval not to be unreasonably withheld.
12.2 Joint Marketing Efforts. MyFamily and SportsNuts may undertake
such joint marketing efforts targeted at shared customers to
avoid duplicate communications as may be mutually agreed upon
from time to time. Each party shall cooperate and assist the
other party by supplying, without charge, reasonable quantities
of materials for the other party's marketing and promotional
activities. Except as expressly set forth in this Agreement,
neither party shall be obligated to participate in any joint
marketing efforts.
Article 13 INDEMNIFICATION
13.1 MyFamily. MyFamily agrees to defend, indemnify and hold
SportsNuts and its officers, directors, agents and employees
harmless from and against any and all claims, demands,
liabilities, actions, judgments, and expenses, including
reasonable fees and expenses arising out of or related to (i) any
breach or alleged breach of any of MyFamily's representations and
warranties set forth in herein; (ii) any User's use of or
reliance on the Content; (iii) any injury to person or property
caused by any products or services sold through the Content; (iv)
any other claim with respect to MyFamily, the
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Content or products or services sold by or through MyFamily or
its agents, or (v) MyFamily's sales or marketing practices.
13.2 SportsNuts. SportsNuts agrees to defend, indemnify and hold
MyFamily and its officers, directors, agents and employees
harmless from and against any and all claims, demands,
liabilities, actions, judgments, and expenses, including
reasonable fees and expenses arising out of or related to (i) any
breach or alleged breach of any of SportsNuts' representations
and warranties set forth herein; (ii) any injury to person or
property caused by any products or services sold by SportsNuts,
or any User's use of or reliance on XxxxxxXxxx.xxx; (iii) any
injury to person or property caused by any products or services
sold through XxxxxxXxxx.xxx; (iv) any other claim with respect to
SportsNuts, XxxxxxXxxx.xxx or products or services sold by or
through SportsNuts or its agents, or (v) SportsNuts' sales or
marketing practices.
13.3 Process. MyFamily or SportsNuts, as applicable (the "Indemnitor")
shall bear full responsibility for the defense (including any
settlements) of any claim brought under Section 13.1 or 13.2,
respectively; provided, however, that (i) Indemnitor shall keep
the party being indemnified (the "Indemnitee") informed of, and
consult with Indemnitee in connection with, the progress of such
litigation or settlement; and (ii) Indemnitor shall not have any
right, without the Indemnitee's written consent, to settle any
such claim if such settlement arises from or is part of any
criminal action, suit or proceeding or contains a stipulation to
or admission or acknowledgment of, any liability or wrongdoing
(whether in contract, tort or otherwise) on the part of
Indemnitee or otherwise requires SportsNuts to take or refrain
from taking any material action (such as the payment of fees).
Article 14 GENERAL TERMS AND CONDITIONS
14.1 Independent Contractors. The parties to this Agreement are
independent contractors. Neither party is an agent or
representative 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.
14.2 No Assignment. Neither party shall assign, sublicense or
otherwise transfer (voluntarily, by operation of law, through a
change of control 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 any entity that
acquires all or substantially all of the assets or shares of such
party whether by sale, merger, operation of law or otherwise. In
the event that the acquiring entity is a direct competitor of the
other party, the other party may terminate this Agreement with
thirty (30) days notice. Any attempted assignment, sublicense or
transfer by a party in derogation hereof shall be null and void.
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.
14.3 No 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 the party to be
bound thereby.
14.4 Governing Law. This Agreement shall be interpreted, construed and
enforced in all respects in accordance with the laws of the State
of Utah. Each party irrevocably consents to the exclusive
jurisdiction of any state or federal court for or within Utah
County, Utah 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.
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14.5 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.
14.6 Notices. 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 (i) when delivered personally; (ii)
three (3) business days after having been sent by registered or
certified U.S. mail, return receipt requested, postage and
charges prepaid; or (iii) 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 Agreement.
If to MyFamily: If to SportsNuts:
XxXxxxxx.xxx, Inc. XxxxxxXxxx.xxx International, Inc.
360 West 4800 North 00000 Xxxxx 000 Xxxx, Xxxxx 000
Xxxxx, Xxxx 00000 Xxxx Xxxx Xxxx, XX 00000
Attention: Xxxx Xxxx Attention: Xxxxxxx Xxxxx
Tel: (000) 000-0000 Tel: (000) 000-0000
With a copy to:
XxXxxxxx.xxx, Inc. Jones, Waldo, Xxxxxxxx & XxXxxxxxx
360 West 4800 North 000 Xxxxx Xxxx, Xxxxx 0000
Xxxxx, Xxxx 00000 Xxxx Xxxx Xxxx, Xxxx 00000
Attention: General Counsel Attention: Xxxxxx X. Xxxxxxx
Tel: (000) 000-0000 Tel: (000) 000-0000
14.7 Entire Agreement. This Agreement and the Exhibits attached hereto
and incorporated herein by reference constitutes the entire
agreement between the parties and supersedes 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.
14.8 Headings/Construction. 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.
14.9 Counterparts; Facsimile Signatures. This Agreement may be
executed in counterparts which taken together shall be regarded
as one and the same Agreement. Either party's facsimile signature
will be deemed a binding acceptance of this Agreement by such
party.
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XXXXXXXXXX.XXX INTERNATIONAL, INC. XXXXXXXX.XXX, INC.
By: /s/ Xxxxxxx Xxxxx By: /s/ Xxxxx Xxxxxxxxxx
-------------------------------- -----------------------------------
Authorized Signature Authorized Signature
Print Name: XXXXXXX XXXXX Print Name: XXXXX XXXXXXXXXX
---------------------- -----------------------------------
Title: President Title: VP-General Counsel
---------------------------- ----------------------------------
Date: 9-12-00 Date: 9-12-00
----------------------------- ---------------------------------
Tax ID No.: 00-0000000 Tax ID No.: 00-0000000
---------------------- --------------------------
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EXHIBIT A
LAUNCH SCHEDULE
MyFamily will provide to SportsNuts the Co-Branded Area including the following
content, as described below:
Description and Specifications Timetable for Launch
on MyFamily Co-
Branded Area
Content
Launch of Co-Branded Area September 30, 2000
Prominent placement, within the Co-Branded Area. Such placement will be mutually
agreed upon.
Other content to be mutually agreed Ongoing
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EXHIBIT B
COMPETITORS
SportsNuts Competitors:
XxXxxx.xxx Xxxxxxxxxxxxx.xxx
Xxxxxx.xxx Xxxxx.xxx
Xxxxxx.xxx Xxxxxx.xxx
Xxxxxxxxxx.xxx XxxxxxXxxxxxxx.xxx
Xxxxxxxxxxxxxxxx.xxx Xxxxxxxxxxxxxx.xxx
Xxxxxxxxxxxx.xxx Xxxxxxxx.xxx
Xxxxxxxxxxxxx.xxx Xxxxxxxxxxx.xxx
Xxxxxxxxxxxxxx.xxx
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EXHIBIT C
OPERATING STANDARDS
1. Co-Branded Area Infrastructure. MyFamily will be responsible for
all communications, hosting and connectivity costs, and expenses associated
with the Co-Branded Area. MyFamily will provide all hardware, software,
telecommunications lines and other infrastructure necessary to meet traffic
demands on the Co-Branded Area from SportsNuts. MyFamily will design and
implement the network between SportsNuts and the Co-Branded Area such that
(i) no single component failure will have a materially adverse impact on
Users seeking to reach the Co-Branded Area from SportsNuts and (ii) no
single line will run at more than 70% average utilization for a 5-minute
peak in a daily period. MyFamily will provide SportsNuts, with a detailed
network diagram regarding the network infrastructure supporting the
Co-Branded Area. In the event that MyFamily elects to create a custom
version of the Co-Branded Area in order to comply with the terms of this
Agreement, MyFamily will bear responsibility for all aspects of the
implementation, management and cost of such customized site.
2. Optimization; Speed. SportsNuts and MyFamily will use commercially
reasonable efforts to ensure that: (i) the functionality and features
within the Co-Branded Area are compatible with Microsoft Internet Explorer
and Netscape Navigator versions 4.0 or later, in use by Users (Windows and
Macintosh); and (ii) the Co-Branded Area is designed and populated in a
manner that minimizes delays when Users attempt to access such site. At a
minimum, SportsNuts and MyFamily will ensure that the Co-Branded Area'
average server side processing time is less than .5 seconds for every page
on average sustained over any two (2) hour period. Prior to commercial
launch of any material promotions described herein, SportsNuts and MyFamily
will conduct performance and load testing of the Co-Branded Area (in person
or through remote communications), with such commercial launch not to
commence until such time as SportsNuts and MyFamily are reasonably
satisfied with the results of any such testing.
3. Technical Problems. SportsNuts agrees to use commercially reasonable
efforts to address material technical problems (over which SportsNuts
exercises control) affecting use by Users of the Co-Branded Area (an
"SportsNuts Technical Problem") promptly following notice thereof. In
the event that SportsNuts is unable to promptly resolve a SportsNuts
Technical Problem following notice from MyFamily (including, without
limitation, infrastructure deficiencies producing User delays),
MyFamily will have the right to terminate the agreement as provided
herein or regulate the promotions it provides to SportsNuts hereunder
until such time as SportsNuts corrects the SportsNuts Technical Problem
at issue.
4. Monitoring. SportsNuts will ensure that the Co-Branded Area is
available on a continuous basis (24 hours every day). SportsNuts will
provide MyFamily with contact information (including e-mail, phone,
pager and fax information, as applicable, for both during and after
business hours) for SportsNuts's principal business and technical
representatives, for use in cases when issues or problems arise with
respect to the Co-Branded Area.
5. Security. MyFamily will utilize Internet standard encryption
technologies (e.g., Secure Socket Layer - SSL) to provide a secure
environment for conducting transactions and/or transferring private
User information (e.g. credit card numbers, banking/financial
information, and member address information) to and from the Co-Branded
Area. MyFamily will facilitate periodic reviews of the Co-Branded Area
in order to evaluate the security risks of such site. MyFamily will
promptly remedy any security risks or breaches of security that may be
identified by MyFamily's Operations Security team.
6. Technical Performance.
i. SportsNuts and MyFamily will design the Co-Branded Area to support
Microsoft Internet Explorer versions 4.0 or later (Windows
and Macintosh) and Netscape Navigator versions 4.0 or later
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(Windows and Macintosh) and make commercially reasonable efforts
to support any other browsers MyFamily may request from time to
time.
ii. SportsNuts will review and implement any new operating standards
provided from time to time by MyFamily.
7. MyFamily/SportsNuts Support. MyFamily will provide SportsNuts with
access to the standard online resources, standards and guidelines
documentation, technical phone support, monitoring and after-hours
assistance that MyFamily makes generally available to similarly situated
web-based partners. MyFamily support will not, in any case, be involved
with content creation on behalf of SportsNuts or support for any
technologies, databases, software or other applications that are not
supported by MyFamily or are related to any SportsNuts area other than the
Co-Branded Area. Support to be provided by MyFamily is contingent on
SportsNuts providing to MyFamily demographic account information (where
applicable), a detailed description of the Co-Branded Area' software,
hardware and network architecture and access to the Co-Branded Area for
purposes of such performance and the coordination load testing as MyFamily
elects to conduct.
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