1
MARKETING AGREEMENT
MARKETING AGREEMENT ("Agreement") as of June 1, 1999 (the "Effective Date")
between Xxxxxxxxxxxxxx.xxx, a division of NewSub Magazine Services LLC,
(collectively "MO"), located at 0 Xxxx Xxxxx Xxxx, Xxxxxxxx, XX 00000, and
Xxxxxxxx.xxx, Inc. ("XxxxXxxx.xxx"), a Washington corporation, located at 00
Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxxxx 00000 ("XxxxXxxx.xxx").
XxxxXxxx.xxx wishes to offer subscriptions to consumer magazines on its web site
located at xxx.xxxxxxxx.xxx, and replacement and successor addresses thereto
(the "XxxxXxxx.xxx Site") and forward orders for said magazines to MO, as well
as to test the viability of additional marketing programs.
1. MAGAZINE OFFERINGS.
1.1. Presentation Materials. MO shall provide XxxxXxxx.xxx with MO
logo and graphics, logos of consumer brands offered by MO,
consumer magazine cover graphics, banners, offer copy, offer
elements and other copy, all of which may be updated in the
reasonable discretion of MO from time-to-time (collectively, the
"Presentation Materials"), for promotion of the consumer title
magazine subscription offers on the XxxxXxxx.xxx Site. MO will
transmit updated Presentation Materials in a mutually agreed
format to XxxxXxxx.xxx via email or FTP from time to time, and
will promptly notify XxxxXxxx.xxx upon transmission.
1.2. Magazine Offers. Using the Presentation Materials, XxxxXxxx.xxx
will market and offer to XxxxXxxx.xxx Site visitors
("Offer(s)"), in accordance with the terms and conditions of the
Agreement, the magazine subscriptions authorized for promotion
on XxxxXxxx.xxx by MO's best efforts, which are available
through MO's own web site at xxx.xxxxxxxxxxxxxx.xxx as updated
from time to time hereafter with the consent of MO which will
not be unreasonably withheld, conditioned or denied (the
"Magazines"). XxxxXxxx.xxx has the right in their sole
discretion to refuse advertising or to request removal of
advertising from the XxxxXxxx.xxx site for any reason.
XxxxXxxx.xxx'sonline marketing and distribution partners, and
their respective agents have the right in their sole discretion
to refuse advertising or to request removal of advertising for
specific Magazines from their site respectively for any reason.
XxxxXxxx.xxx distribution partners and their respective agents
may not alter, modify or change the offers or promotion of those
offers in any way and XxxxXxxx.xxx is solely responsible for
enforcing this.
2. OFFER PLACEMENT.
2.1. MO Store. Subject to the approval of MO not to be unreasonably
withheld, conditioned or denied, XxxxXxxx.xxx shall design,
build, host and operate at its sole expense a premium, branded
section of the XxxxXxxx.xxx Site to be known as the Xxxxxxxx.xxx
magazine store, which store shall be devoted entirely to
offering and selling the Magazines and shall feature e-commerce
functionality and features ("Magazine Store"), which shall be a
part of, and subject to the same conditions as, the XxxxXxxx.xxx
Site.
[***] Confidential portion omitted pursuant to a confidential treatment request
submitted pursuant to Rule 406 under the Securities Act of 1933, as amended.
2
2.2. Magazine Offer Links. XxxxXxxx.xxx shall place a link to the
Magazine Store on the front screen of the XxxxXxxx.xxx Site, in
a conspicuous location that is visible to customary users upon
initial receipt of the page without any scrolling or navigation.
XxxxXxxx.xxx will also promote the Magazine Store and the
Magazines individually in email promotions and other areas of
the XxxxXxxx.xxx Site as appropriate in XxxxXxxx.xxx's
discretion, as well as through XxxxXxxx.xxx affiliated sites.
2.3. Site Coordination. MO and XxxxXxxx.xxx shall jointly coordinate
all elements of the placement of Presentation Materials on the
XxxxXxxx.xxx Site.
2.4. Changes. XxxxXxxx.xxx agrees to use best efforts to execute any
and all reasonable changes in the Presentation Materials within
five (5) business days of receipt of the same. Upon notice by
MO, XxxxXxxx.xxx shall promptly remove any Magazines or other
materials on pages that contain content judged by MO in its sole
reasonable discretion to be objectionable or in other ways
offensive in a manner that would negatively affect MO.
3. RIGHTS GRANTED.
3.1. License to MO Marks. Subject to all the terms and conditions of
this Agreement, MO grants XxxxXxxx.xxx the non-exclusive,
non-transferable, non-sublicensable, revocable right to use the
Presentation Materials during the term of the XxxxXxxx.xxx
Agreement for the sole purpose of generating Magazine
subscription sales through the XxxxXxxx.xxx Site. In addition to
other rights and remedies herein, MO reserves all of its rights,
and those of the other respective rights owners, in the
Presentation Materials, and XxxxXxxx.xxx claims no rights
whatsoever in the Presentation Materials. All good will
attributed to the MO logo(s), tradenames(s) and trademarks ("MO
Marks") will inure to the benefit of MO exclusively.
4. ORDER PROCESSING, FULFILLMENT AND SUPPORT.
4.1. FreeShop.com-Customer Agreements.
4.1.1. MO may provide XxxxXxxx.xxx with a copy of certain terms
and conditions binding upon customers to which the sale
or ordering of Consumer Magazines are subject ("Product
Agreement"), and XxxxXxxx.xxx will provide a link on the
offer page for each Magazine for customers to review and
understand said terms and conditions before ordering
said Magazines. MO may change any provision of a Product
Agreement from time to time on thirty (30) days notice
to XxxxXxxx.xxx, and shall have prior approval over how
the Product Agreement is presented to the consumer.
XxxxXxxx.xxx will notify customers in the Product
Agreement that MO will send emails for the purpose of
managing their subscription(s). The customer will be
provided with the ability to opt out of any such
notices. MO may contact customers via email up to three
(3) times per year to manage existing subscriber
relationships. All such email messages will include a
link to XxxxXxxx.xxx.
[***] Confidential portion omitted pursuant to a confidential treatment request
submitted pursuant to Rule 406 under the Securities Act of 1933, as amended.
3
4.1.2. XxxxXxxx.xxx shall place a toll-free telephone number
and e-mail address to be provided by MO on the Magazine
Store in conjunction with all orders, to enable
customers to contact MO directly for customer service
and to cancel Magazine subscriptions.
4.2. Order Information.
4.2.1. XxxxXxxx.xxx will deliver to MO on a weekly basis via
secure electronic transmission in a file format
reasonably agreed to by MO and XxxxXxxx.xxx all Magazine
subscription orders received by XxxxXxxx.xxx including
the following information received by XxxxXxxx.xxx for
each and every Lead: (i) full first and last names and
complete mailing address(es) for both billing and
shipping, one or more [***] (unless the customer has
opted out) (ii) one or more telephone number(s), (iii)
the quantity and titles of Magazine subscriptions, and
the corresponding Magazine code/source code supplied by
MO, (iv) the order date and any price information
associated with the order, and (v) complete, valid
credit card information guaranteeing payment of the
subscription fee in full, including credit card number,
expiration date and name of credit card holder (Visa,
MasterCard, American Express and Discover Card only)
(collectively, ("Leads"). XxxxXxxx.xxx will be solely
responsible for collecting and transmitting to MO in
accordance with the terms and conditions of the
Agreement all Leads.
4.3 Cancellations. MO will process cancellations of subscriptions in
accordance with the MO cancellation policy as provided to
XxxxXxxx.xxx for inclusion in the XxxxXxxx.xxx Site, as modified
by MO from time-to-time. XxxxXxxx.xxx shall promptly transmit to
MO all cancellation information or requests for MO to respond to
and/or process, upon receipt of the same and in accordance with
the terms of the Agreement. MO shall determine, in its sole
discretion, the validity of cancellations, and shall be solely
responsible for the refund of any subscription fees.
4.4 Records. XxxxXxxx.xxx shall maintain records of each customer
order of a Magazine, including Consumer Order Information, for a
period of at least two (2) years from the date of each such
order.
4.5 Order Fulfillment. MO shall be solely responsible for
fulfillment of orders and all expenses directly associated
therewith.
4.6 Marketing Tests. When available during the Term of this
Agreement, XxxxXxxx.xxx agrees to test in a format and on terms
to be mutually agreed in good faith by the parties, the
marketing of trade magazines ("FreeBizMag"), a credit card
security program (the "MO Credit Card Program"), and an internet
customer service system (the "MO Internet Service System") for
renewals and change of address to be offered by MO. Each of
these programs shall be implemented on the XxxxXxxx.xxx site in
a timely fashion. Each program shall be implemented for a
reasonable testing period such that both parties will have
sufficient means to evaluate
[***] Confidential portion omitted pursuant to a confidential treatment request
submitted pursuant to Rule 406 under the Securities Act of 1933, as amended.
4
the success of the tests. Following thorough evaluation, the
parties will jointly develop and execute an appropriate
implementation plan.
4.6.1 FreeBizMag: For the purposes of the test, XxxxXxxx.xxx will
promote free business magazines on the XxxxXxxx.xxx site. MO
will pay XxxxXxxx.xxx $1 for each lead generated from the free
business magazine program. MO shall retain all right, title and
interest in and to FreeBizMag. XxxxXxxx.xxx acknowledges that it
does not and shall have no right, title, or interest whatsoever
in or to FreeBizMag. Furthermore, XxxxXxxx.xxx acknowledges that
it shall provide its cooperation in supporting FreeBizMag as
reasonably requested by MO.
4.6.2 MO Credit Card Program: For the purposes of the test,
XxxxXxxx.xxx will promote a comprehensive credit card security
system, which will enable consumers to sign up for credit card
protection and insurance for purchases on the XxxxXxxx.xxx Site.
MO shall retain all right, title and interest in and to the MO
Credit Card Program. XxxxXxxx.xxx acknowledges that it does not
and shall have no right, title, or interest whatsoever in or to
the MO Credit Card Program. Furthermore, XxxxXxxx.xxx
acknowledges that it shall provide its cooperation in supporting
the MO Credit Card Program as reasonably requested by MO.
4.6.3 MO Internet Service System: For the purposes of the test,
FreeShop will promote a magazine customer service program
including change of address renewals and other services relating
to magazine subscriptions. MO shall retain all right, title and
interest in and the MO Internet Service System. XxxxXxxx.xxx
acknowledges that it does not and shall have no right, title, or
interest whatsoever in or to the MO Internet Service System.
Furthermore, XxxxXxxx.xxx acknowledges that it shall provide its
cooperation in supporting the MO Internet Service System as
reasonably requested by MO.
5. CUSTOMER RESPONSIBILITY.
XxxxXxxx.xxx agrees that customers who purchase Magazines through the Magazine
Store will be deemed to be customers of MO as well as XxxxXxxx.xxx, for all
purposes, including without limitation information management and direct
marketing, subject to the MO rules, policies and operating procedures concerning
customer orders, and customer service in connection therewith and subject to the
terms of the Product Agreement presented to customers.
6. MAGAZINE COMMISSIONS AND PAYMENTS.
6.1 Payments. MO shall pay XxxxXxxx.xxx [***] ($***) per each Lead
("Commissions"),within forty-five (45) days following receipt of
invoice
[***] Confidential portion omitted pursuant to a confidential treatment request
submitted pursuant to Rule 406 under the Securities Act of 1933, as amended.
5
from XxxxXxxx.xxx. Commission payments will be less any orders
that could not be processed by MO due to invalid, missing, or
untimely Lead information. If discrepancies are found following
commission payment, they will be deducted from the next monthly
payment.
6.2 Reports. XxxxXxxx.xxx shall deliver to MO weekly reports via
email representing estimated Leads received for Magazines
through the XxxxXxxx.xxx Site.
6.3 Renegotiate. MO and XxxxXxxx.xxx agree to use their best efforts
to renegotiate a lower Commission rate if after six (6) months
from the Effective Date: (a) there are fewer than ten thousand
(10,000) Leads per month for three (3) or more consecutive
months, or (b) the rate of cancellation of Magazine
subscriptions placed through the XxxxXxxx.xxx Site is greater
than twenty-five percent (25%).
6.4 Exclusivity. During the term of this Agreement, XxxxXxxx.xxx
will not place offers through or on the XxxxXxxx.xxx Site for
magazines from any company other than MO, nor shall it offer
such services itself, directly or indirectly, nor shall
XxxxXxxx.xxx allow any magazine advertisements, promotions or
content from any company other than MO or links to any websites
which are primarily in the business of magazine subscription
services to appear on the XxxxXxxx.xxx Site, other than MO. If
XxxxXxxx.xxx links to a site which promotes magazines as an
ancillary business, that portion of the site must not be
available from the XxxxXxxx.xxx site or MO must have approval
over any such relationships where magazines are offered.
Notwithstanding the foregoing sentence, XxxxXxxx.xxx may solely
continue to offer the six (6) magazines set forth in Exhibit A
hereto ("XxxxXxxx.xxx Magazines"), which it represents are being
actively offered on and sold through the XxxxXxxx.xxx Site as of
the Effective Date, in a consistent manner and in conjunction
with the existing publisher(s) only; it being understood and
agreed that the XxxxXxxx.xxx Magazines will not be advertised or
sold in the Magazine Store.
7. PROMOTIONAL MAGAZINES.
7.1. Value. During the term of the Agreement, XxxxXxxx.xxx shall
accrue credit with MO, cumulatively on a monthly basis ("Accrued
Promotional Credit") for points which can be redeemed for annual
various magazine subscriptions of [***] dollars ($[***]) in
value based on the prices offered to customers in the Magazine
Store ("Promotional Magazines") up to a total aggregate value of
[***] ($[***]) dollars. The Promotional Magazines shall be made
available to XxxxXxxx.xxx throughout the term and MO and
XxxxXxxx.xxx will reasonably coordinate on the redemption
process for such Accrued Promotional Credit. MO shall notify
XxxxXxxx.xxx as the Promotional Magazines become available up to
the then current amount of the Accrued Promotional Credit.
7.2. Continuous Service Customers. Subject only to the foregoing
subsection 7.1, Promotional Magazines shall be subject to all
terms and conditions of the
[***] Confidential portion omitted pursuant to a confidential treatment request
submitted pursuant to Rule 406 under the Securities Act of 1933, as amended.
6
Agreement, including without limitation Customer Responsibility,
MO Magazine Policies and Conditions and MO's Continuous
ServiceSM subscription model for which the customer will be
billed in the ninth month of the annual Promotional Subscription
and yearly thereafter unless and until a subscription is
canceled.
8. TERM AND TERMINATION
8.1 Term. The term of this Agreement shall commence on the Effective
date and continue for a period of two (2) years ("Initial
Term"), and shall be automatically renewed thereafter for
subsequent one (1) year periods (collectively, "term").
8.2 Termination. Either party shall have the right to terminate this
Agreement:
8.1.1 if the other party commits a material breach and fails
to cure such breach within thirty (30) days following
written notice describing such breach;
8.1.2 upon ninety (90) days written notice; and
8.1.3 immediately by written notice upon the insolvency, or
the voluntary or involuntary bankruptcy, of the other
party, or if the other party makes an assignment for the
benefit of creditors, or has a receiver or trustee
appointed.
8.2 Actions upon Termination. Upon termination or expiration of this
Agreement for any reason whatsoever, XxxxXxxx.xxx's rights
hereunder to market, promote, offer or otherwise act pursuant to
this Agreement shall immediately cease, and XxxxXxxx.xxx shall
immediately and completely cease any such activity. Within five
(5) days after such termination or expiration XxxxXxxx.xxx shall
return to MO all Presentation Materials and other materials
provided to XxxxXxxx.xxx under this Agreement, and all copies
thereof, or upon request by MO destroy the same, and certify in
writing that the foregoing and all copies thereof have either
been so returned to MO or destroyed at the end of the
termination. Upon termination, XxxxXxxx.xxx shall only be
entitled to Commissions earned.
9. REPRESENTATIONS, WARRANTIES AND COVENANTS
9.1. By MO. MO represents, warrants and covenants:
9.1.1. the Magazine subscription rates offered through the
Magazine Store for paid new subscriptions shall be
equivalent to the best prices that MO makes available
through third-parties or MO's own web site to the
general public on the Internet;
9.1.2. MO shall offer customers under the Agreement the
incentive of two (2) months free at the commencement of
new Magazine subscriptions; and
[***] Confidential portion omitted pursuant to a confidential treatment request
submitted pursuant to Rule 406 under the Securities Act of 1933, as amended.
7
9.1.3. the Presentation Materials do not infringe the rights of
any third party, and are not libelous or otherwise
illegal.
9.1.4. SUBJECT TO THE FOREGOING SUBSECTIONS 9.1.1 - 9.1.3, MO
MAKES NO REPRESENTATIONS OR WARRANTIES TO ANY PERSON OR
ENTITY WITH RESPECT TO ANY SERVICES PERFORMED OR ANY
INFORMATION, CONTENT OR OTHER MATERIALS PROVIDED OR MADE
AVAILABLE BY IT HEREUNDER, AND DISCLAIMS ALL IMPLIED
WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ANY
IMPLIED WARRANTIES ARISING OUT OF A COURSE OF
PERFORMANCE, DEALING OR TRADE USAGE. MO DOES NOT
REPRESENT THAT THE OPERATION OF ITS SERVICES WILL BE
UNINTERRUPTED OR ERROR-FREE, AND IT WILL NOT BE LIABLE
FOR THE CONSEQUENCES OF SUCH INTERRUPTIONS, ERRORS OR
NON-FULFILLMENT OF ORDERS.
9.2. By XxxxXxxx.xxx. XxxxXxxx.xxx represents, warrants and
covenants:
9.2.1. it is solely responsible for the development, operation,
and maintenance of the XxxxXxxx.xxx Site and all
portions thereof. XxxxXxxx.xxx agrees to use best
efforts to accurately display and maintain the
Presentation Materials, including offer terms, in good
working order, and not to alter or modify them in any
way without obtaining the prior written consent of MO.
Under no circumstance shall XxxxXxxx.xxx vary the
authorized subscription prices by implicitly or
expressly offering discounts, premiums or any other
incentives specifically related to the Magazine Store.
XxxxXxxx.xxx agrees to use best efforts to make any
imperative changes to Presentation Materials, such as
changes to price, within two (2) business days if
reasonably possible;
9.2.2. any and all content and materials, other than the
Presentation Materials, which are posted on the
XxxxXxxx.xxx Site, do not violate or infringe upon the
rights of any third party, and are not libelous or
otherwise illegal;
9.2.3. XxxxXxxx.xxx shall maintain the Magazine Store with a
level of support no less favorable than the support it
provides to the other parts of the XxxxXxxx.xxx Site;
and
9.2.4. it shall use best efforts at all times to maximize sales
of Magazines through the Magazine Store.
9.2.5. SUBJECT TO THE FOREGOING SUBSECTIONS 9.2.1 - 9.2.4,
XXXXXXXX.XXX MAKES NO REPRESENTATIONS OR WARRANTIES TO
ANY PERSON OR ENTITY WITH RESPECT TO ANY SERVICES
PERFORMED OR ANY INFORMATION, CONTENT OR OTHER MATERIALS
PROVIDED OR MADE
[***] Confidential portion omitted pursuant to a confidential treatment request
submitted pursuant to Rule 406 under the Securities Act of 1933, as amended.
8
AVAILABLE BY IT HEREUNDER, AND DISCLAIMS ALL IMPLIED
WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ANY
IMPLIED WARRANTIES ARISING OUT OF A COURSE OF
PERFORMANCE, DEALING OR TRADE USAGE. XXXXXXXX.XXX DOES
NOT REPRESENT THAT THE OPERATION OF ITS SERVICES WILL BE
UNINTERRUPTED OR ERROR-FREE, AND IT WILL NOT BE LIABLE
FOR THE CONSEQUENCES OF SUCH INTERRUPTIONS, ERRORS OR
NON-FULFILLMENT OF ORDERS.
10. MO POLICIES AND CONDITIONS.
10.1. Selection of Titles. MO may change its selection of magazine
titles, and their subscription prices, at any time, without
prior notice, in its sole discretion, and XxxxXxxx.xxx agrees to
promptly adopt such modifications upon notice. MO does not
guarantee specific prices, or the availability of any product.
10.2. MO shall be exclusively responsible for all processing,
fulfillment and customer service related to Magazine orders. At
MO's sole discretion, it may reject any Magazine subscription
orders that do not comply with its requirements.
10.3. Territory. MO shall fulfill Magazine subscription orders through
the XxxxXxxx.xxx Site within the U.S. and its military bases
only.
11. INDEMNIFICATION.
Each party (the "Indemnitor") shall indemnify and hold harmless the other (the
"Indemnitee") against and from all claims, liabilities, suits, damages, costs,
including without limitation, reasonable attorney's fees, disbursements and
court costs that Indemnitee may suffer, incur or be subjected to by reason of
any legal action, arbitration or other claim by a third party arising out of or
as a result of a breach of any of Indemnitor's representations, warranties, or
agreements hereunder; provided that (a) the Indemnitor is promptly notified in
writing of such claim or suit, (b) the Indemnitor shall have the sole control of
any defense and/or settlement thereof, (c) the Indemnitee furnishes to the
Indemnitor, on request, information available to the Indemnitee for such
defense, and (d) the Indemnitee reasonably cooperates in any defense and/or
settlement thereof as long as the Indemnitor pays all of the Indemnitee's
reasonable out of pocket expenses and attorneys' fees. The Indemnitee shall not
admit any such claim without prior consent of the Indemnitor and the Indemnitor
shall not enter into any settlement or compromise, which would require the
Indemnitee to make any payment or bear any obligation other than those set forth
herein without the Indemnitee's prior written consent.
12. LIMITATIONS OF LIABILITY.
[***] Confidential portion omitted pursuant to a confidential treatment request
submitted pursuant to Rule 406 under the Securities Act of 1933, as amended.
9
EACH PARTY'S SOLE REMEDY AGAINST THE OTHER FOR LOSS OR DAMAGE ARISING OUT OF THE
PERFORMANCE OR NON-PERFORMANCE UNDER THIS AGREEMENT SHALL BE PROVEN DIRECT,
ACTUAL DAMAGES. NEITHER PARTY WILL BE LIABLE OR OBLIGATED UNDER ANY SECTION OF
THIS AGREEMENT OR UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR
EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL, RELIANCE, SPECIAL, PUNITIVE, OR
CONSEQUENTIAL DAMAGES OR LOST PROFITS OR COST OF PROCUREMENT OF SUBSTITUTE GOODS
OR SERVICES ARISING OUT OF ITS PERFORMANCE OR NON-PERFORMANCE UNDER THIS
AGREEMENT, WHETHER OR NOT SUCH PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
13. CONFIDENTIALITY.
Each party (the "Receiving Party") agrees that all proprietary information
concerning the other (the "Disclosing Party"), including without limitation
business and financial data, vendor lists, pricing and sales information, and
the terms of this Agreement, shall remain strictly confidential and shall not be
disclosed to third parties, with the sole exception of the Receiving Party's
accountants and attorneys on a confidential basis, or pursuant to valid legal
process, of which the Receiving Party shall provide immediate notice to the
Disclosing Party and cooperation in any attempt by the Disclosing Party to
oppose said process. Confidential information shall not include information (a)
which was lawfully in possession of Receiving Party prior to disclosure of such
information by Disclosing Party, (b) which was, or at any time becomes,
available in the public domain other than through a violation of this Agreement,
(c) which is documented by Receiving Party as having been developed by Receiving
Party independently or (d) which is furnished to Receiving Party or its
representatives by a third party not under an obligation of confidentiality to
Disclosing Party.
14. RELATIONSHIP.
Each party may identify the other as an "affiliate" in disclosing the nature of
services that are the subject matter of the Agreement. Under no circumstances
shall this Agreement, nor either party's activities under it, create any agency,
franchise, joint venture, partnership, sales representative or employment
relationship between XxxxXxxx.xxx and MO, and neither party has any authority to
make or accept any offers on behalf of the other without prior written consent.
The parties will coordinate in the preparation and distribution of a mutually
agreed press release publicly announcing this relationship. In addition, MO
grants XxxxXxxx.xxx the right to use MO's name and trademarks in promotional
materials which MO shall approve prior to their release. This right shall
continue until all promotional materials existing on the date of any termination
of this Agreement have been distributed or otherwise utilized.
15. FORCE MAJEURE.
Neither party shall be liable for nonperformance or delay in performance (other
than of obligations regarding confidentiality) caused by any event reasonably
beyond the control of such party including, but not limited to wars,
hostilities, revolutions, riots, civil
[***] Confidential portion omitted pursuant to a confidential treatment request
submitted pursuant to Rule 406 under the Securities Act of 1933, as amended.
10
commotion, national emergency, strikes, lock-outs, unavailability of supplies,
epidemics, fire, flood, earthquake, force of nature, explosion, embargo, or any
other Act of God, or any law, proclamation, regulation, ordinance, or other act
or order of any court, government or governmental agency.
16. ASSIGNMENT.
Either party may assign this Agreement, and its rights, licenses and obligations
hereunder, subject to the prior written approval of the other which shall not be
unreasonably withheld, solely to any affiliate or other acquiror of all or of
substantially all of its equity securities, assets or business relating to the
subject matter of this Agreement, or pursuant to any internal re-organization.
Any attempted assignment in violation of this Section will be void and without
effect. The issuance of or trading in any securities which are registered under
the Securities Act of 1933, as amended, or in conjunction with any transaction
which is registered under the Securities and Exchange Act of 1934, as amended,
shall not be deemed to violate the provisions of this Section. Subject to the
foregoing, this Agreement will benefit and bind the parties' successors and
assigns.
17. SURVIVAL.
The following shall survive any expiration or termination of this Agreement: (a)
sections (and subsections thereof) numbers 3, 4, 5, 6, 7, 8.2, 10, 11, 12, 13,
14, 15, 17, 18, 19, 20, 21, 22, 23 and 24; (b) any accrued payment obligations;
(c) except as otherwise expressly provided herein, any right of action for
breach of this Agreement prior to termination, and (d) MO's rights, and
obligations to customers, relating to existing Magazine subscriptions and
fulfillment services.
18. SEVERABLE.
In the event that any of the provisions of this Agreement shall be held by a
court or other tribunal of competent jurisdiction to be unenforceable, such
provisions shall be limited or eliminated to the minimum extent necessary so
that this Agreement shall otherwise remain in full force and effect and
enforceable.
19. WAIVER.
The failure to enforce any provision of the Agreement will not be a waiver of
the right to subsequent enforcement of the provision or any other provision of
the Agreement.
20. NOTICE.
Any notice or other correspondence required or permitted to be given pursuant to
this Agreement shall be in writing and shall be deemed to have been given (a)
immediately if served personally, (b) immediately if sent to a designated FAX
number (with confirmation of receipt), and simultaneously via first-class mail,
postage pre-paid and addressed to the persons set forth below, (c) three (3)
business days after if sent by certified or registered mail return receipt
requested, and addressed to the persons set forth
[***] Confidential portion omitted pursuant to a confidential treatment request
submitted pursuant to Rule 406 under the Securities Act of 1933, as amended.
11
below, (d) on the next business day if sent via internationally recognized
carrier such as FedEx or U.P.S. and addressed to the persons set forth below.
If to Xxxxxxxxxxxxxx.xxx:
Xxxxx Xxxxxx
President
With a copy to:
Xxxx X. Xxxxxx
VP, General Counsel
If to XxxxXxxx.xxx:
Xxx Xxxxxx
President & CEO
With a copy to:
Xxxx Xxxx
CFO
21. HEADINGS.
Headings and captions are for convenience only and are not to be used in the
interpretation of this Agreement.
22. CHOICE OF LAW, DISPUTE RESOLUTION AND JURISDICTION.
22.1. Choice of Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of New York, without
giving effect to the principles of conflicts of law.
22.2. ADR Procedures. In the event of any controversy or claim arising
out of this Agreement raised by either party, the party raising
the dispute will promptly notify the other party in writing of
the nature of the dispute and the factual background. Within the
fifteen (15) calendar day period following such notice, the
parties will initiate an attempt in good faith to reach a
reasonable solution to the dispute, including escalation to the
vice-president of each company responsible for the subject
matter of the dispute. If the dispute cannot be amicably
resolved within thirty (30) calendar days of written
notification, then either party may seek to resolve said dispute
by arbitration before a single arbitrator in accordance with the
commercial arbitration rules of the American Arbitration
Association, and judgement upon the award rendered by the
arbitrator may be entered in any court having jurisdiction
thereof. The place of arbitration shall be at a neutral site to
be reasonably determined by both parties. Each party shall
provide to the arbitrator, no later than fifteen (15) calendar
days following the date of the arbitrator's appointment, a
statement, including all supporting documents or other evidence
on which such party relies as to why it
[***] Confidential portion omitted pursuant to a confidential treatment request
submitted pursuant to Rule 406 under the Securities Act of 1933, as amended.
12
believes that the dispute should be resolved in its favor, and
all such materials and any other materials provided to the
arbitrator by either party shall simultaneously be provided by
such party to the other party. Within twenty (20) calendar days
after the submission of such statements by all parties, the
arbitrator shall hold a hearing with respect to the dispute. At
such hearing, the arbitrator may, in his or her sole discretion,
allow the parties to call and cross-examine witnesses, make any
additional arguments or submit any additional materials to
support the position taken in their respective statements. The
arbitrator shall enter an award within fifteen (15) calendar
days following the hearing provided for herein. Nothing shall
preclude either party from making an application to the
arbitrator, for good cause, to expedite the proceedings, nor
restrict the arbitrator from granting such an application. In
addition to such other relief as the arbitrator may award, the
arbitrator shall be vested with jurisdiction and shall award to
the prevailing party its reasonable attorney's fees and
expenses, and all other costs associated with the arbitration.
The award rendered by the arbitrator shall be final, and
judgement may be entered upon it in accordance with applicable
law in any court having jurisdiction thereof.
23. COMPLETE AGREEMENT.
This Agreement (including the attached exhibits) constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all prior discussions, documents, agreements and prior course of
dealing, and shall not be effective until signed by both parties.
24. COUNTERPARTS.
This Agreement may be executed in two counterparts, each of which shall be an
original; but such counterparts shall together constitute one and the same
instrument.
AGREED, this 13th day of AGREED, this 12th day of
August, 1999. August, 1999.
XXXXXXXX.XXX, INC. NEWSUB MAGAZINE SERVICES LLC
By: /s/ Xxxx X. Xxxx By: /s/ Xxxxx Xxxxxx
------------------------------- -------------------------------
Title: Secretary, Vice President, Title: V.P. on Online Businesses
Finance and Chief Financial Officer
[***] Confidential portion omitted pursuant to a confidential treatment request
submitted pursuant to Rule 406 under the Securities Act of 1933, as amended.
