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EXHIBIT 10.34
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TIME INC. TIME INC. NEW MEDIA
NEW MEDIA TIME & LIFE BUILDING
0000 XXXXXX XX XXX XXXXXXXX
XXX XXXX, XX 00000
000-000-0000
May 24, 1999
VIA FEDERAL EXPRESS
Mr. Xxxx Xxxxxx
Chief Executive Officer
THE VITAMIN SHOPPE
Xxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxx Xxxxxx 00000
Dear Xxxx:
I am writing to formalize our agreement for the [*****] of the Xx. Xxxxxx
Xxxxxx online area (the "Xxxxxx Site") to be located within a network of sites
operated by Time Inc. New Media (the "TINM Network") by The Vitamin Shoppe for
the period commencing on the date the Xxxxxx Site first becomes publicly
available (the "Launch Date") and ending on [*****] (the "Term"). I am pleased
to begin this relationship with you.
1. RATE
The cost of the total sponsorship package for the Xxxxxx Site for the
Term is [*****] (net). This amount includes the [*****] discount. In the event
the Launch Date occurs after June 10, 1999, such amount shall be prorated based
on the period remaining for the Term.
2. THE PROGRAM
The sponsorship package described in this letter will extend to all areas
of the Xxxxxx Site that are made publicly available during the Term.
To underscore, The Vitamin Shoppe shall, during the Term, be the [*****].
Time Inc. New Media shall prominently display the following tag line on the home
page: "Sponsored by The Vitamin Shoppe". Time Inc. New Media shall prominently
display the same such tag line on each other page of the Xxxxxx Site (where
space is available; provided that such space will be available on a
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majority of such other pages of the Xxxxxx Site). [*****].
During the Term, The Vitamin Shoppe will be the Xxxxxx Site's sole and
exclusive commerce partner for the sale of vitamins and supplements, and [*****]
commerce-based buttons on the Xxxxxx Site (other than those from The Vitamin
Shoppe) will themselves promote vitamins or supplements sold by a third party.
The Xxxxxx Site may, however, from time to time during the Term, include
commerce-based buttons that promote the products or services of a third party
who sells vitamins or supplements; provided that any such commerce-based buttons
do not themselves promote vitamins or supplements and any commerce-based buttons
that do promote vitamins or supplements are located one or more clicks away from
the Xxxxxx Site.
Hyperlinks to The Vitamin Shoppe's website will be placed prominently on
the navigational frame that appears on virtually all pages of the Xxxxxx Site.
We will also prominently include a branded logo link on the navigational frame.
In the event the Xxxxxx Site contains within its editorial text
commerce-based hyperlinks (that are typically displayed in green and are to be
distinguished from editorial hyperlinks which are typically displayed in blue
and from commerce-based buttons) [*****].
At Time Inc. New Media's written request, The Vitamin Shoppe will develop
and maintain within its website certain customized page(s) which will feature
and offer for sale selected brands, which brands shall be introduced with the
words "as discussed by" or "as seen on" or such other language as may be
designated by Time Inc. New Media in its sole discretion. The customized page(s)
will consist of no fewer than one (1) page, after which a visitor may be taken
into the main portion of The Vitamin Shoppe website. Users who click the
tagline, a banner advertisement, marketing button or other equivalent promotion
of The Vitamin Shoppe while on the Xxxxxx Site will be automatically linked to
such customized page(s) as the initial page(s) they view on The Vitamin Shoppe's
website. The content of such customized pages shall be mutually agreed upon the
parties. Such customized pages will only be accessible by users who access The
Vitamin Shoppe website by way of a link from the Xxxxxx Site.
3. SYSTEM FAILURE GUARANTEES
If the Xxxxxx Site does not technologically function properly for a full
24 hour period (or more), we will provide you with a cash rebate for the loss of
the day (the amount to be prorated against the sponsorship cost). We will keep
records in the unlikely event that this happens more than once.
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4. PROMOTION
The Vitamin Shoppe will have the right in its website, in its store and
in its catalogs to include language such as, but not limited to, "[*****]
sponsor of the Xx. Xxxxxx Xxxxxx Online website," and the name and likeness of
Xx. Xxxxxx Xxxxxx solely in the exact manner such name and likeness appear in
the Xxxxxx Site icon, so long as we approve each such use and so long as you
prominently and closely reference the Xxxxxx Site URL whenever using such icon.
All Time Inc. New Media advertising that promotes the Xxxxxx Site will include
(where space is available) a reference to, "The Vitamin Shoppe as the [*****]
sponsor of the Xx. Xxxxxx Xxxxxx Online website", or such other wording as the
parties hereto may agree.
5. LINK CO-SPONSOR TAGLINE
The tagline featured under the Xx. Xxxxxx Xxxxxx icon on the Xxxxxx Site
will state the following: "Sponsored by The Vitamin Shoppe". The Vitamin Shoppe
name will contain a link to The Vitamin Shoppe website so users on the Xxxxxx
Site can click directly on the company name. In return for this, you will
provide a link from The Vitamin Shoppe's home page to the Xxxxxx Site.
6. WEEKLY TRAFFIC/SALES INFORMATION
Time Inc. New Media will provide you with Weekly Ad View information and
click through numbers, via the Internet. We will review these figures with you
to assist The Vitamin Shoppe in receiving the highest yield possible. "Ad View"
shall mean each time that the sponsor tagline (as described above), a banner
advertisement, a marketing button or any other equivalent promotion of The
Vitamin Shoppe on the Xxxxxx Site (each of which shall be counted as a separate
Ad View) is viewed by a user.
With respect to users who link to The Vitamin Shoppe website from the
Xxxxxx Site, you will provide us with weekly sales figures, along with the
number of catalogs ordered, from The Vitamin Shoppe's website. This will provide
us with an insight as to how the Xxxxxx Site is helping The Vitamin Shoppe and
will enable us to work with you knowledgeably to enhance our relationship.
7. SPONSORSHIP PACKAGE BEYOND TERM
Any continuation of The Vitamin Shoppe's sponsorship of the Xxxxxx Site
shall be subject to the mutual written agreement of both parties and neither
party shall have any obligation to continue, or to negotiate the continuation
of, the relationship described herein.
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8. OTHER AREAS OF DISCUSSION
The Vitamin Shoppe will be entitled to receive weekly Ad Views, and, to
the extent such information is made available by us to other third party
advertisers, unique user figures (which The Vitamin Shoppe acknowledges will be
estimated research), provided by the Xxxxxx Site.
9. ADDITIONAL BENEFITS/OPPORTUNITIES
Either party may issue its own press release announcing the continuation
of this strategic relationship, subject to the other party's prior written
approval. Our Public Relations department will be responsible for completing
these tasks.
We will use The Vitamin Shoppe tagline in promotional and publicity
material we distribute concerning the Xxxxxx Site.
We will designate a contact person here who will be able to provide you
with information, reports or answers to questions. A monthly conference call or
in-person meeting can also be set up if you wish.
As you know, we represent one arm of the Xx. Xxxxxx Xxxxxx franchise,
which will continue to grow and prosper as we enter the new millennium. We will
explore with Xx. Xxxxxx Xxxxxx'x representatives opportunities in other media
that could benefit The Vitamin Shoppe and will act as liaison to coordinate The
Vitamin Shoppe's involvement.
We will work with you to create materials to be distributed in your
stores that will benefit your customers.
10. ADDITIONAL TERMS
The fees will be payable as follows: (a) [*****] shall be due on [*****];
(b) [*****] shall be due on [*****]; (c) [*****] shall be due on [*****]; and
(d) the remaining [*****] shall be due on [*****].
The sponsorship opportunities we are offering in this letter relate only
to those areas of the Xxxxxx Site listed above as they appear in the English
language on the TINM Network (as it is currently known), targeted to users in
the U.S. and Canada (or any such successor website(s) that replace(s) the TINM
Network within which Time Inc. New Media operates the Xxxxxx Site, in the
English language, targeted to users in the U.S. and Canada). We reserve the
right to repurpose the material on the Xxxxxx Site in other formats and other
media, to translate it into another language and display the translation in
other media or online, and to disaggregate the website material for license or
syndication online outside of the TINM Network, in such cases without any
obligation to The Vitamin Shoppe; provided that Time Inc. New Media will not
operate a Mirror Site (as defined herein). A "Mirror Site" shall mean a site
that duplicates all of the content, format and "look and feel" of the Xxxxxx
Site, is written in the English language, is
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targeted to users in the U.S. and Canada, is publicly available on the World
Wide Web of the Internet, and is designed for narrowband display.
The Vitamin Shoppe will be responsible for completing all aspects of
transactions sought by users of the Xxxxxx Site or the TINM Network, including
order processing and security, fulfillment, catalog distribution and customer
service. In addition, The Vitamin Shoppe will comply with appropriate privacy
policies in handling customers' personally identifying information.
Specifically, The Vitamin Shoppe will prominently display, and will strictly
comply with, a privacy policy on its website that is substantially similar to
the privacy policy displayed on the TINM Network, and strictly adheres to the
privacy guidelines and principles promulgated by the Direct Marketing
Association or the Online Privacy Alliance.
Each party hereby agrees to indemnify and hold harmless the other party
and its subsidiaries and affiliates, and their respective directors, officers,
employees, partners, members and other owners, against any and all claims,
actions, demands, liabilities, losses, damages, judgments, settlements, costs
and expenses (including reasonable attorneys' fees) resulting from third party
claims (any or all of the foregoing hereinafter referred to as "Losses") insofar
as such Losses (or third party actions in respect thereof) arise out of or are
based on the use by it of any trademarks belonging to the other party other than
in accordance with the terms hereof.
The Vitamin Shoppe hereby agrees to indemnify and hold harmless Time Inc.
New Media and its subsidiaries and affiliates, and their respective directors,
officers, employees, partners, members and other owners, against any and all
Losses insofar as such Losses (or third party actions in respect thereof) arise
out of or are based on the use by Time Inc. New Media of the Vitamin Shoppe
Trademarks in accordance with the terms hereof to the extent The Vitamin Shoppe
did not have the right to grant a license to Time Inc. New Media as set forth
below.
Time Inc. New Media hereby agrees to indemnify and hold harmless The
Vitamin Shoppe and its subsidiaries and affiliates, and their respective
directors, officers, employees, partners, members and other owners, against any
and all Losses insofar as such Losses (or third party actions in respect
thereof) arise out of or are based on the use by The Vitamin Shoppe of the
TINM/Xx. Xxxxxx Trademarks in accordance with the terms hereof to the extent
Time Inc. New Media did not have the right to grant a license to The Vitamin
Shoppe as set forth below.
Subject to the terms and conditions hereof, the Vitamin Shoppe does
hereby grant to Time Inc. New Media a non-exclusive, worldwide, non-transferable
license to reproduce and display all logos, trademarks, trade names and similar
identifying material relating to the Vitamin Shoppe (the "Vitamin Shoppe
Trademarks") solely in connection with the promotion, marketing and distribution
of the Xxxxxx Site and the Vitamin Shoppe and its website in accordance with the
terms hereof, provided, however, that Time Inc. New Media shall not make any
specific use of any Vitamin Shoppe Trademark without first submitting a sample
of such use to the Vitamin Shoppe and obtaining its prior consent, which consent
shall not be unreasonably withheld. Such license shall terminate upon the
effective date of the expiration or termination of this Agreement.
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Subject to the terms and conditions hereof, Time Inc. New Media does
hereby grant to the Vitamin Shoppe a non-exclusive, worldwide, non-transferable
license to reproduce and display all logos, trademarks, trade names and similar
identifying material relating to the Xxxxxx Site (the "TINM/Xx. Xxxxxx
Trademarks") solely in connection with the promotion, marketing and distribution
of the Xxxxxx Site and the Vitamin Shoppe and its website in accordance with the
terms hereof, provided, however, that the Vitamin Shoppe shall not make any
specific use of any TINM/Xx. Xxxxxx Trademark without first submitting a sample
of such use to Time Inc. New Media and obtaining its prior consent, which
consent shall not be unreasonably withheld. Such license shall terminate upon
the effective date of the expiration or termination of this Agreement.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York, without giving effect to the conflict of law
principles thereof. This Agreement constitutes the entire agreement of the
parties hereto with respect to the subject matter hereof and supersedes any and
all prior agreement, written and oral, with respect thereto. No change,
amendment or modification of any provision hereof shall be valid unless set
forth in a written instrument signed by both parties. This Agreement does not
constitute either party an agent, legal representative, joint venturer, partner
or employee of the other for any purpose whatsoever and neither party is in any
way authorized to make any contract, agreement, warranty or representation or to
create any obligation, express or implied, on behalf of the other party hereto.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed an original and together which shall constitute one and the same
instrument. This Agreement and the provisions hereof shall be binding upon and
inure to the benefit of and be enforceable by the parties hereto and their
successors and permitted assigns; provided, however, that neither party shall
have the right to assign its rights or obligations hereunder to any other person
or entity without the prior written consent of the other party, which shall not
be unreasonably withheld. Notwithstanding the foregoing sentence, either party
may assign this Agreement, and/or its rights or obligations hereunder, to an
affiliate of such party without the written consent of, but upon prior notice
to, the other party; provided that such affiliate continues to maintain or
operate the assigning party's site.
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11. CONCLUSION
All of us here at Time Inc. New Media are very excited about continuing
the relationship between the Xxxxxx Site and The Vitamin Shoppe. By combining
the best that both companies have to offer, we will be able to offer the
consumer a unique experience that will serve both of our objectives.
Sincerely,
Xxxxxx Xxxxxx
ACKNOWLEDGED AND AGREED:
THE VITAMIN SHOPPE
By: /s/ X. X. XXXXXX
-------------------------
Title: CEO
----------------------
cc. TIME INC. NEW MEDIA THE VITAMIN SHOPPE
Xxxx Xxx Xxxxx Xxxxxx
Xxxxxxxx Xxxxx Xxxx Xxxxxxxxx
Xxxxxxxx Xxxx
Xxxxxxxx Xxxxxxxx
Xxxxxxxx Xxxxxx
