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EXHIBIT 10.26
CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
ASTERISKS DENOTE OMISSIONS.
This agreement ("Agreement") is entered into as of the 23rd day of September
1998 ("Effective Date"), by and between Excite, Inc., a Delaware corporation,
located at 000 Xxxxxxxx, Xxxxxxx Xxxx, Xxxxxxxxxx 00000 ("Excite"), and Vitamin
Shoppe Industries Inc., a New York corporation, located at 0000 Xxxxxxxx
Xxxxxx, Xxxxx Xxxxxx, Xxx Xxxxxx 00000 ("Client").
RECITALS
A. Excite maintains sites on the Internet at
xxxx://xxx.xxxxxx.xxx (the "Excite Site"),
xxxx://xxx.xxxxxxxxxx.xxx (the "WebCrawler Site) and
xxxx://xxx.xxxxxx.xx.xx (the "Excite Japan Site"), and owns,
manages or is authorized to place advertising on affiliated
sites on the Internet worldwide (collectively, the "Excite
Network") which, among other things, allow its users to search
for and access content and other sites on the Internet. For
purposes of this Agreement, the parties hereby acknowledge
that the Excite Network does not include the site on the
Internet located at xxxx://xxxx.xxxxxxxx.xxx and/or other URLs
or locations designated by Netscape Communications
Corporation.
B. Within the Excite Site and the WebCrawler Site, Excite
currently organizes certain content into topical channels (the
"Channels").
C. Client is engaged in the business of selling vitamins,
minerals, nutritional supplements, herbs, sports nutrition
formulae, homeopathic remedies and other health related
products ("Vitamins") at its site on the Internet located at
xxxx://xxx.xxxxxxxxxxxxx.xxx (the "Client Site").
D. Client wishes to promote its business to users of the Excite
Network through promotions and advertising in various portions
of the Excite Network.
Therefore, the parties agree as follows:
1. SPONSORSHIP ON THE WEBCRAWLER HEALTH CHANNEL
a) Client will be promoted as the preferred and dominant
reseller of Vitamins in the Health Channel on the
WebCrawler Site during the term of this Agreement. As
such, Excite [*****]. For purposes of this Agreement,
Client's Competitors means those merchants identified
in Exhibit D attached hereto. Client may update
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this list in writing not more than once every six (6)
months by adding other merchants whose primary
business is reselling Vitamins upon the mutual
agreement of Excite. Notwithstanding the foregoing,
Excite may display links to Excite's own products and
services anywhere in the Excite Network, and may
display links to Client's Competitors in results
pages of search services in response to user queries,
in general directories of Web sites, in classified
advertising listings and in results in the "Jango"
shopping search service throughout the Excite
Network. Client's preferred and dominant status as a
reseller of Vitamins will be extended on the terms
stated in this Section l(a) to its presence within
future departments within the WebCrawler Health
Channel, when launched, which may include, but are
not limited to, the alternative medicine and senior
living departments.
b) The parties will cooperate in good faith to identify
and implement appropriate promotional opportunities
for Client to be displayed in rotation on the home
page of the WebCrawler Health Channel during the term
of the Agreement.
c) A link to the Client Site (consistent with the format
used on similar links on the same page) will be
displayed in the Nutrition & Vitamins department of
the WebCrawler Health Channel during the term of the
Agreement. Excite estimates, but does not guarantee,
delivery of [*****] impressions of the Client
promotional placement described in this Section l(c)
during Year One of the term of the Agreement and
[*****] such impressions during Year Two of the term
of the Agreement.
d) The parties will cooperate in good faith to identify
and implement other appropriate promotional
opportunities for Client on the WebCrawler Health
Channel including (if and when launched) but not
limited to, the alternative medicine and senior living
departments during the term of the Agreement. Excite
estimates, but does not guarantee, delivery of
[*****] impressions of the Client promotional
placement described in this Section 1(d) during Year
One of the term of the Agreement and [*****] such
impressions during Year Two of the term of the
Agreement.
e) Excite is in the process of developing a "Sponsorship
Strip" for the WebCrawler Health Channel consisting of
a row of graphic links to sponsors' Web sites. Excite
will display a graphic link to the Client Site on the
Sponsorship Strip (consistent with the format used on
similar links on the same strip) in the pages of the
WebCrawler Health Channel for the duration of the term
of the Agreement. Excite estimates, but does not
guarantee, delivery of [*****] impressions of the
Client promotional placement described in this Section
1(e) during Year One of the term of the Agreement and
[*****] such impressions during Year Two of the term
of the Agreement.
f) Excite and Client acknowledge that neither party to
this Agreement possesses any right to control the
content or promotional programming displayed on any
third party
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site. However, Excite will work with Client in good
faith to evaluate the display of any Excite
co-branded pages one level deep that directly link
from the WebCrawler Health Channel to determine
whether the non-banner display of modules related to
Client's Competitors on those pages materially and
adversely affect the aggregate value of Client's
promotional placements on the WebCrawler Health
Channel as described in this Agreement. Under such
circumstances, Excite will then exert commercially
reasonable efforts to modify such co-branded pages to
reduce such material and adverse effects.
2. SPONSORSHIP ON THE WEBCRAWLER SHOPPING CHANNEL
a) Client will be promoted as the preferred and dominant
reseller of Vitamins in the Shopping Channel on the
WebCrawler Site during the term of this Agreement. As
such, Excite [*****]. Notwithstanding the foregoing,
Excite may display links to Excite's own products and
services anywhere in the Excite Network, and may
display links to Client's Competitors in results pages
of search services in response to user queries, in
general directories of Web sites, in classified
advertising listings and in results in the "Jango"
shopping search service throughout the Excite Network.
b) A link to the Client Site (consistent with the format
used on similar links on the same page) will be
displayed in rotation on the first page of the health
& fitness department of the WebCrawler Shopping
Channel during the term of the Agreement. Excite
estimates, but does not guarantee, delivery of [*****]
impressions of the Client promotional placement
described in this Section 2(b) during Year One of the
term of the Agreement and [*****] such impressions
during Year Two of the term of the Agreement.
c) A link to the Client Site (consistent with the format
used on similar links on the same page) will be
displayed under the health foods category on the first
page of the health & fitness groceries department of
the WebCrawler Shopping Channel. Excite estimates, but
does not guarantee, delivery of [*****] impressions of
the Client promotional placement described in this
Section 2(c) during Year One of the term of the
Agreement and [*****] such impressions during Year Two
of the term of the Agreement.
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CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY
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ASTERISKS DENOTE OMISSIONS.
3. ADDITIONAL SPONSORSHIP
a) The parties will cooperate in good faith to identify
and implement selective sponsorship and promotional
opportunities for Client in the Nutrition & Vitamins
department of the Health Channel on the Excite Site.
Such opportunities may include sponsorship links,
sponsorship boxes and/or promotional boxes. The
parties hereby acknowledge that Client will be
sharing such opportunities in the Nutrition &
Vitamins department of the Excite Health Channel with
one other reseller of vitamins.
b) The parties will cooperate in good faith to identify
and implement selective sponsorship and promotional
opportunities for Client on the Excite Japan Site.
Such opportunities may include sponsorship links,
sponsorship boxes and/or promotional boxes. Excite
estimates, but does not guarantee, delivery of
[*****] impressions of the Client promotional
placements described in this Section 3(b) during Year
One of the term of the Agreement and [*****] such
impressions during Year Two of the term of the
Agreement.
c) Excite estimates, but does not guarantee, delivery of
a total of [*****] impressions of the Client
promotional placements described in Sections 3(a) and
3(b) during the term of this Agreement.
4. DeliverE MESSAGE PROMOTIONS
a) Excite and Client will cooperate in developing and
delivering MatchLogic DeliverE message campaigns
during the term of the Agreement as described in
Exhibit B. The MatchLogic DeliverE is an opt in email
service providing the opportunity to distribute
messages to highly targeted audiences on the Web via
email. All such message campaigns will comply with
Excite's then current privacy policy which is located
at xxxx://xxx.xxxxxx.xxx/xxxxxxx_xxxxxx and is
subject to change from time to time. If the privacy
policy changes in a manner that has a material
adverse effect on the value, functionality or
implementation of the DeliverE message campaign for
Client, Excite will notify Client, which will then
have the option to cancel future DeliverE campaigns
and both parties will be relieved of their
obligations related to those canceled DeliverE
campaigns, if Client, in its sole but reasonable
discretion, finds such changed privacy policy
objectionable.
b) Excite estimates, but does not guarantee, delivery of
[*****] impressions of the email messages described
in this Section 4 during Year One of the term of this
Agreement and [*****] impressions during Year Two
of the term of the Agreement.
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ASTERISKS DENOTE OMISSIONS.
c) Excite and Client agree that Client may purchase
additional DeliverE messages during the term of this
Agreement at a rate of [*****] impressions ("CPM"),
subject to availability.
5. ADVERTISING ON THE EXCITE NETWORK
a) Excite will display Client's banner advertising on
Excite Search and WebCrawler search results pages in
response to the keywords set forth in Exhibit A as
amended from time to time by Client, and with
additional keywords related to Vitamins, subject to
availability, during the term of the Agreement.
Excite estimates, but does not guarantee, the display
of [*****] impressions of the banner advertisements
described in this Section 5(a) during Year One of the
term of the Agreement and [*****] such impressions
during Year Two of the term of the Agreement.
b) Excite will display Client's banner advertising in
rotation on the WebCrawler Health Channel during the
term of the Agreement. Excite estimates, but does
not guarantee, the display of [*****] impressions
of the banner advertisements described in this
Section 5(b) during Year One of the term of the
Agreement and [*****] such during Year Two of the
term of the Agreement.
c) Excite will display Client's banner advertising in
rotation on mutually determined departments of the
WebCrawler Health Channel during the term of the
Agreement. Excite estimates, but does not guarantee,
the display of [*****] impressions of the banner
advertisements described in this Section 5(c) during
Year One of the term of the Agreement and [*****]
such impressions during Year Two of the term of the
Agreement.
d) Excite will display Client's banner advertising in
general rotation on the WebCrawler Site during the
term of the Agreement. Excite estimates, but does
not guarantee, the display of [*****] impressions
of the banner advertisements described in this
Section 5(d) during Year One of the term of the
Agreement and [*****] such impressions during Year
Two of the term of the Agreement.
6. LAUNCH DATE, RESPONSIBILITY FOR EXCITE NETWORK AND REPORTING
a) Client and Excite will use reasonable efforts to
implement the display of the promotional placements
and advertising described in the Agreement by October
1, 1998 (the "Scheduled Launch Date"). The parties
recognize that the Scheduled Launch Date can be met
only if Client provides final versions of all
graphics, text, keywords, banner advertising,
promotional placements, other promotional media and
valid URL links necessary to implement the
promotional placements and advertising described in
the Agreement (collectively, "Impression Material")
to Excite fourteen (14) days prior to Scheduled
Launch Date.
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ASTERISKS DENOTE OMISSIONS.
b) In the event that Client fails to provide the
Impression Material to Excite fourteen (14) days in
advance of the Scheduled Launch Date, Excite may, at
its sole discretion (i) reschedule the Scheduled
Launch Date at the earliest practicable date
according to the availability of Excite's engineering
resources after delivery of the complete Impression
Material or (ii) commence delivery of Impressions
based on Impression Material in Excite's possession
at the time.
c) Client and Excite agree that the day the promotional
placements and advertising described in this
Agreement are first displayed on the Excite Network
will be the "Launch Date" for purposes of this
Agreement.
d) Excite will have sole responsibility for providing,
hosting and maintaining, at its expense, the Excite
Network. Excite will have sole control over the
"look and feel" of the Excite Network including, but
not limited to, the display, appearance and placement
of the parties' respective names and/or brands and
the promotional links, but such control shall not
permit Excite to modify Client's logos and trademarks
and it does not relieve Excite from its obligations
regarding Client's preferred and dominant sponsorship
status as set forth elsewhere in this Agreement.
e) Advertising banners will be served, tracked and
reported by Excite's subsidiary, MatchLogic, Inc.
("MatchLogic") as described in Exhibit B. MatchLogic
will also provide Client with feedback as to
comparisons of the performance of (i) the different
creative messages supplied by Client for the
advertising banners, (ii) the placements of those
advertising banners on the Excite Network as set
forth in this Agreement and (iii) through the
implementation of MatchLogic's Closed Loop
transaction reporting system on the Client Site, will
report on correlations between transaction activity
by users referred to the Client Site from the Excite
Network and the various promotional placements and
advertising displayed on the Excite Network, all as
described in Exhibit B. Promotional placements,
including text links, will be served, tracked and
reported by Excite. These promotional placements
will be tracked and reported by MatchLogic when this
implementation becomes available. Excite will
provide Client with monthly reports substantiating
the number of impressions of Client's advertising
banners and promotional placements displayed on the
Excite Network.
f) As soon as such third party auditing is available to
Excite, Excite will provide Client with monthly
reports, including certified reports by a third party
auditing firm substantiating the number of
impressions of Client's advertising banners and
promotional placements displayed on the Excite
Network. When available, such third party audit
reports will be at Excite's cost and expense.
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WITH THE SECURITIES AND EXCHANGE COMMISSION.
ASTERISKS DENOTE OMISSIONS.
7. FEES; REVENUE SHARE
a) Client will pay Excite sponsorship and advertising
fees of [*****] for the first twelve (12) month
period following the Launch Date ("Year One"). These
fees will be paid in twelve (12) equal monthly
installments of [*****]. The first monthly payment
for Year One will be due one month following the
Launch Date. Subsequent installments will be due on
a monthly basis thereafter.
b) Client will pay Excite sponsorship and advertising
fees of [*****] for the twelve (12) month period
following the first anniversary of the Launch Date
("Year Two"). These fees will be paid in equal
monthly installments of [*****]. The first monthly
payment for Year Two will be due one month following
the first anniversary of the Launch Date. Subsequent
installments will be due on a monthly basis
thereafter.
c) Separate and apart from the sponsorship and
advertising fees, Client will pay Excite MatchLogic
DeliverE fees of [*****] for Year One. These fees will
be paid in equal monthly installments of [*****]. The
first monthly payment for Year One will be due one
month following the Launch Date. Subsequent
installments will be due on a monthly basis.
d) Separate and apart from the sponsorship and
advertising fees, Client will pay Excite MatchLogic
DeliverE fees of [*****] for Year Two. These fees
will be paid in equal monthly installments of [*****].
The first monthly payment for Year Two will be due one
month following the first anniversary of the Launch
Date. Subsequent installments will be due on a
monthly basis.
e) Separate and apart from the sponsorship and
advertising fees and the MatchLogic DeliverE fees,
Client will pay Excite MatchLogic banner and link
serving fees of [*****] for Year One. These fees will
be paid in equal monthly installments of [*****]. The
first monthly payment for Year One will be due one
month following the Launch Date. Subsequent
installments will be due on a monthly basis.
f) Separate and apart from the sponsorship and
advertising fees and the MatchLogic DeliverE fees,
Client will pay Excite MatchLogic banner and link
serving fees of [*****] for Year Two. These fees
will be paid in equal monthly installments of [*****]
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[*****]. The first monthly payment for Year Two will
be due one month following the first anniversary of
the Launch Date. Subsequent installments will be due
on a monthly basis.
g) Separate and apart from the sponsorship and
advertising fees, the MatchLogic DeliverE fees and the
MatchLogic banner and link serving fees, Client will
pay Excite [*****] recognized by Client on
transactions conducted by users referred to the Client
Site from the Excite Network during Year One. Separate
and apart from the sponsorship and advertising fees,
the MatchLogic DeliverE fees and the MatchLogic banner
and link serving fees, Client will pay Excite [*****]
recognized by Client on transactions conducted by
users referred to the Client Site from the Excite
Network during Year Two of the term of the Agreement.
For purposes of this Agreement "Net Revenue" means
gross revenue recognized by Client on transactions
conducted by users referred to the Client Site from
the Excite Network minus sales tax, sales returns and
allowances. Client will pay Excite these revenue
share payments within thirty (30) days after the close
of the financial quarter in which Client recognizes
the Net Revenue on these transactions.
h) The fees and revenue share payments are net of any
agency commissions to be paid by Client.
i) Client will maintain accurate records with respect to
the calculation of all payments due under this
Agreement. Once per year, the parties will review
these records to verify the accuracy and appropriate
accounting of all payments made pursuant to the
Agreement. In addition, Excite may, upon no less
than thirty (30) days prior written notice to Client,
cause an independent Certified Public Accountant to
inspect the records of Client reasonably related to
the calculation of such payments during Client's
normal business hours. The fees charged by such
Certified Public Accountant in connection with the
inspection will be paid by Excite unless the payments
made to Excite are determined to have been less than
ninety-five percent (95%) of the payments actually
owed to Excite, in which case Client will be
responsible for the payment of the reasonable fees
for such inspection.
8. PUBLICITY
Unless required by law, neither party will make any public
statement, press release or other announcement relating to the
terms of or existence of this Agreement without the prior
written approval of the other. Notwithstanding the foregoing,
either party may issue an initial press release regarding the
relationship between Excite and Client, the timing and wording
of which will be mutually agreed upon, and nothing herein
shall preclude Client from promoting the Client Site.
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ASTERISKS DENOTE OMISSIONS.
9. TERM AND TERMINATION
a) Unless terminated earlier in accordance with the
specific terms of this Agreement, the term of this
Agreement will begin on the Launch Date and will not
end until Excite displays a total of [*****]
impressions of the Client advertising banners and
promotional placements on the Excite Network as
described in this Agreement and pushes [*****]
emails using the email vehicles specified in Exhibit
B. Regardless of Excite's actual delivery of
impressions, the term of this Agreement will not be
shorter than [*****] after the Launch Date,
unless the Agreement is terminated earlier in
accordance with the specific terms of this Agreement.
b) Either party may terminate this Agreement if the
other party materially breaches its obligations
hereunder and such breach remains uncured for thirty
(30) days following the notice to the breaching party
of the breach.
c) All undisputed payments that have accrued prior to
the termination or expiration of this Agreement will
be payable in full within thirty (30) days thereof.
d) The provisions of Section 12 (Confidentiality and
User Data), Section 13 (Indemnity), Section 14
(Limitation of Liability) and Section 15 (Dispute
Resolution) will survive any termination or
expiration of this Agreement.
e) Excite guarantees to deliver the annual impressions
totals set forth in Exhibit C hereto. If Excite
fails to deliver the indicated number of impressions
required during any annual period, Client may suspend
(but not eliminate) its payments specified in Section
7 for a maximum of sixty (60) days (the "Make-Good
Period) during which Excite will deliver the
shortfall of such impressions. The parties agree to
cooperate in good faith to evaluate the quality and
performance of the placements used to deliver the
impressions during the Make-Good Period. Until such
shortfall is delivered, no impressions will be deemed
delivered for the next annual period. If Excite has
not achieved the required annual impression delivery
by the end of the Make-Good Period, Client may then
terminate this Agreement upon written notice within
ten (10) days following the end of the Make-Good
Period. Client's termination of the Agreement in
accordance with the previous sentence will not
relieve Excite of its obligation to deliver any
previously paid for but undelivered impressions. If
Excite achieves the annual impression delivery goal
at any time during the Make-Good Period, the term of
this Agreement will continue and Client shall
immediately resume payment of the sponsorship and
advertising fees specified in Section 7.
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10. TRADEMARK OWNERSHIP AND LICENSE
a) Client will retain all right, title and interest in
and to its trademarks, service marks and trade names
worldwide, subject to the limited license granted to
Excite hereunder.
b) Excite will retain all right, title and interest in
and to its trademarks, service marks and trade names
worldwide, subject to the limited license granted to
Client hereunder.
c) Each party hereby grants to the other a
non-exclusive, limited license to use its trademarks,
service marks or trade names only as specifically
described in this Agreement. All such use shall be
in accordance with each party's reasonable policies
regarding advertising and trademark usage as
established from time to time. Client agrees to
obtain Excite's written consent prior to use of
Excite's logo and trademarks.
d) Upon the expiration or termination of this Agreement,
each party will cease using the trademarks, service
marks and/or trade names of the other except:
i) As the parties may agree in writing; or
ii) To the extent permitted by applicable law.
11. OWNERSHIP
a) Client will retain all right, title and interest in
and to the Client Site worldwide including all
intellectual property rights, including but not
limited to copyright, trademark, trade secrets,
patents, moral rights or any derivative rights
thereof. Any intellectual property rights, including
but not limited to copyright, trademark, trade
secrets, patents, moral rights or any derivative
rights thereof, created by changes made by Excite to
Impression Materials are the sole property of Client.
b) Excite will retain all right, title, and interest in
and to the Excite Network worldwide including, but
not limited to, ownership of all copyrights, look and
feel and other intellectual property rights therein.
12. CONFIDENTIALITY AND USER DATA
a) For the purposes of this Agreement, "Confidential
Information" means information about the disclosing
party's (or its suppliers') business or activities
that is proprietary and confidential, which shall
include all business, financial, technical and other
information of a party marked or designated by such
party as "confidential or
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"proprietary" or information which, by the nature of
the circumstances surrounding the disclosure, ought
in good faith to be treated as confidential.
b) Confidential Information will not include information
that (i) is in or enters the public domain without
breach of this Agreement, (ii) the receiving party
lawfully receives from a third party without
restriction on disclosure and without breach of a
nondisclosure obligation, (iii) the receiving party
knew prior to receiving such information from the
disclosing party or (iv) the receiving party develops
independent of any information originating from the
disclosing party.
c) Each party agrees (i) that it will not disclose to
any third party or use any Confidential Information
disclosed to it by the other except as expressly
permitted in this Agreement and (ii) that it will
take all reasonable measures to maintain the
confidentiality of all Confidential Information of
the other party in its possession or control, which
will in no event be less than the measures it uses to
maintain the confidentiality of its own information
of similar importance.
d) The usage reports provided by Excite to Client
hereunder will be deemed to be the Confidential
Information of Excite.
e) The terms and conditions of this Agreement will be
deemed to be Confidential Information and will not be
disclosed without the written consent of the other
party.
f) For the purposes of this Agreement, "User Data" means
all information submitted by users referred to the
Client Site from the Excite Network during the term
of the Agreement. Such User Data includes, but is
not limited to, the number of purchase requests
requested by such users, the number of purchase
requests completed, the number of purchases completed
and the dollar values of completed purchases The
parties acknowledge that any individual user of the
Internet could be a user of Excite, WebCrawler and/or
Client through activities unrelated to this Agreement
and that user data gathered independent of this
Agreement, even from individuals who are users of
both parties' services, will not be deemed to be
"User Data" for the purposes of this Agreement.
g) User Data will be owned by Client, and subject to the
limitations contained herein, Client grants to Excite
a non-exclusive license to use the User Data for the
purposes of this Agreement.
h) In order to facilitate optimization of Client's
sponsorship program, Client will make good faith
efforts to develop tracking and reporting
capabilities to correlate information regarding
transaction activity by users referred to the Client
Site from the Excite Network to the various
promotional placements and advertising banners
displayed on the Excite Network. Client will provide
to Excite all User Data and
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user transaction reports collected by Client within
thirty (30) days following the end of each calendar
month during the term of this Agreement in a
mutually-determined electronic format.
i) Client will not use User Data to specifically target
any Excite and/or WebCrawler users, as distinct from
all users of the Client Site, for solicitations
(except as specifically provided in this Agreement),
either individually or in the aggregate, during the
term of this Agreement and for a period of twelve
(12) months following the expiration or termination
of this Agreement.
j) Neither party will sell, disclose, transfer or rent
any User Data which could reasonably be used to
identify a specific named individual ("Individual
Data") to any third party nor will either party use
Individual Data on behalf of any third party without
the express permission of the individual user. Where
user permission for dissemination of Individual Data
to third parties has been obtained, each party will
use commercially reasonable efforts to require the
third party recipients of Individual Data to provide
an "unsubscribe" feature in any email communications
generated by, or on behalf of, the third party
recipients of Individual Data.
k) Notwithstanding the foregoing, each party may
disclose Confidential Information or User Data (i) to
the extent required by a court of competent
jurisdiction or other governmental authority or
otherwise as required by law or (ii) on a
"need-to-know" basis under an obligation of
confidentiality to its legal counsel, accountants,
banks and other financing sources and their advisors.
13. INDEMNITY
a) Client will indemnify, defend and hold harmless
Excite, its affiliates, officers, directors,
employees, consultants and agents from any and all
third party claims, liability, damages and/or costs
(including, but not limited to, attorneys fees)
arising from:
i) Its breach of any representation or covenant
in this Agreement; or
ii) Any claim that Client's Impression Material
infringes or violates any third party's
copyright, patent, trade secret, trademark,
right of publicity or right of privacy or
contain any defamatory content; or
iii) Any claim that Client's Impression Material
and/or its display on the Excite Network
violates any federal, state or local laws,
regulations or statutes, including but not
limited to restrictions on the sale,
advertisement or promotion of vitamins,
nutritional supplements, drugs or other
health-related products; or
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iv) Any claim of personal injury or product
liability with respect to products or
services sold, advertised or otherwise
offered to consumers or third parties through
display of Client's Impression Material on
the Excite Network or links to the Client
Site; or
v) Any claim arising from content displayed on
the Client Site.
Excite will promptly notify Client of any and all
such claims and will reasonably cooperate with Client
with the defense and/or settlement thereof; provided
that, if any settlement requires an affirmative
obligation of, results in any ongoing liability to or
prejudices or detrimentally impacts Excite in any way
and such obligation, liability, prejudice or impact
can reasonably be expected to be material, then such
settlement shall require Excite's written consent
(not to be unreasonably withheld or delayed) and
Excite may have its own counsel in attendance at all
proceedings and substantive negotiations relating to
such claim.
b) Excite will indemnify, defend and hold harmless
Client, its affiliates, officers, directors,
employees, consultants and agents from any and all
third party claims, liability, damages and/or costs
(including, but not limited to, attorneys fees)
arising from:
i) Its breach of any representation or covenant
in this Agreement; or
ii) Any claim arising from the Excite Network
other than content or services provided by
Client.
Client will promptly notify Excite of any and all
such claims and will reasonably cooperate with Excite
with the defense and/or settlement thereof; provided
that, if any settlement requires an affirmative
obligation of, results in any ongoing liability to or
prejudices or detrimentally impacts Client in any way
and such obligation, liability, prejudice or impact
can reasonably be expected to be material, then such
settlement shall require Client's written consent
(not to be unreasonably withheld or delayed) and
Client may have its own counsel in attendance at all
proceedings and substantive negotiations relating to
such claim.
c) EXCEPT AS SPECIFIED IN THIS AGREEMENT, NEITHER PARTY
MAKES ANY WARRANTY IN CONNECTION WITH THE SUBJECT
MATTER OF THIS AGREEMENT AND HEREBY DISCLAIMS ANY AND
ALL IMPLIED WARRANTIES, INCLUDING ALL IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE REGARDING SUCH SUBJECT MATTER.
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14. LIMITATION OF LIABILITY
EXCEPT UNDER SECTIONS 13(a) AND 13(b), IN NO EVENT WILL EITHER
PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT,
TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WHETHER OR NOT THAT
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
EXCEPT UNDER SECTIONS 13(a) AND 13(b), THE LIABILITY OF EITHER
PARTY FOR DAMAGES OR ALLEGED DAMAGES HEREUNDER, WHETHER IN
CONTRACT, TORT OR ANY OTHER LEGAL THEORY, IS LIMITED TO, AND
WILL NOT EXCEED, THE AMOUNTS TO BE PAID BY CLIENT TO EXCITE
HEREUNDER.
15. DISPUTE RESOLUTION
a) The parties agree that any breach of either of the
parties' obligations regarding trademarks, service
marks or trade names, confidentiality and/or User
Data would result in irreparable injury for which
there is no adequate remedy at law. Therefore, in
the event of any breach or threatened breach of a
party's obligations regarding trademarks, service
marks or trade names or confidentiality, the
aggrieved party will be entitled to seek equitable
relief in addition to its other available legal
remedies in a court of competent jurisdiction.
b) In the event of disputes between the parties arising
from or concerning in any manner the subject matter
of this Agreement, other than disputes arising from
or concerning trademarks, service marks or trade
names, confidentiality and/or User Data, the parties
will first attempt to resolve the dispute(s) through
good faith negotiation. In the event that the
dispute(s) cannot be resolved through good faith
negotiation, the parties will refer the dispute(s) to
a mutually acceptable mediator.
c) In the event that disputes between the parties
arising from or concerning in any manner the subject
matter of this Agreement, other than disputes arising
from or concerning trademarks, service marks or trade
names, confidentiality and/or User Data, cannot be
resolved through good faith negotiation and
mediation, the parties will refer the dispute(s) to
the American Arbitration Association for resolution
through binding arbitration by a single arbitrator
pursuant to the American Arbitration Association's
rules applicable to commercial disputes.
16. GENERAL
a) Assignment. Neither party may assign this Agreement,
in whole or in part, without the other party's
written consent (which will not be unreasonably
withheld or delayed), except that no such consent
will be required in connection with (i) a merger,
reorganization or sale of all, or substantially all,
of such party's assets or its
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Internet business assets (ii) either party's
assignment and/or delegation of its rights and
responsibilities hereunder to a wholly-owned
subsidiary or affiliate or joint venture in which the
assigning party holds an interest. Any attempt to
assign this Agreement other than as permitted above
will be null and void.
b) Governing Law. This Agreement will be governed by
and construed in accordance with the laws of the
State of California, notwithstanding the actual state
or country of residence or incorporation of Excite or
Client.
c) Notice. Any notice under this Agreement will be in
writing and delivered by personal delivery, express
courier, confirmed facsimile, confirmed email or
certified or registered mail, return receipt
requested, and will be deemed given upon personal
delivery, one (1) day after deposit with express
courier, upon confirmation of receipt of facsimile or
email or five (5) days after deposit in the mail.
Notices will be sent to a party at its address set
forth in this Agreement or such other address as that
party may specify in writing pursuant to this
Section.
d) No Agency. The parties are independent contractors
and will have no power or authority to assume or
create any obligation or responsibility on behalf of
each other. This Agreement will not be construed to
create or imply any partnership, agency or joint
venture.
e) Force Majeure. Any delay in or failure of
performance by either party under this Agreement will
not be considered a breach of this Agreement and will
be excused to the extent caused by any occurrence
beyond the reasonable control of such party
including, but not limited to, acts of God, power
outages and governmental restrictions.
f) Severability. In the event that any of the
provisions of this Agreement are held to be
unenforceable by a court or arbitrator, the remaining
portions of the Agreement will remain in full force
and effect.
g) Entire Agreement. This Agreement is the complete and
exclusive agreement between the parties with respect
to the subject matter hereof, superseding any prior
agreements and communications (both written and oral)
regarding such subject matter. This Agreement may
only be modified, or any rights under it waived, by a
written document executed by both parties.
h) Counterparts. This Agreement may be executed in
counterparts, each of which will serve to evidence
the parties' binding agreement.
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VITAMIN SHOPPE INDUSTRIES INC. EXCITE, INC.
By: [SIG] By: [SIG]
-------------------------------- --------------------------------
Name: X. Xxxxxx Name: Xxxxxx X. Xxxx
------------------------------ ------------------------------
Title: President/CEO Title: EVP/CFO
----------------------------- -----------------------------
Date: 9/23/98 Date: 9/29/98
------------------------------ ------------------------------
0000 Xxxxxxxx Xxxxxx 000 Xxxxxxxx
Xxxxx Xxxxxx, Xxx Xxxxxx 00000 Xxxxxxx Xxxx, Xxxxxxxxxx 00000
650.568.6000 (voice)
000.000.0000 (fax)
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EXHIBIT A
KEYWORDS
[*****]
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[*****]
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EXHIBIT B
MATCHLOGIC SERVICES
AD MANAGEMENT, MEASUREMENT & OPTIMIZATION
Ad Management, Measurement and Optimization refers to the suite of services and
technologies to be used to measure and evaluate variables contributing to the
performance of client marketing messages within the Excite Network.
Descriptions of the services and technologies to be leveraged throughout the
optimization process are highlighted below.
CENTRALIZED AD SERVING
Through its proprietary centralized ad serving infrastructure, MatchLogic will
facilitate the trafficking, delivery, tracking and reporting of Client's
banners throughout the Excite Network. During the ad management process,
MatchLogic will employ TrueCount(sm) cache counting techniques as the
underlying measurement technology for the reporting of client campaign
performance data. Basic campaign performance data including primary
impressions, clicks, click %, cache impressions and total impressions will be
supplied to Client daily through an online interface.
TRUEFFECT(sm)
TruEffect(sm) refers to the process of establishing, tracking and communicating
the relationship between locations from which users have interacted with
Client's marketing messages and the activities they engaged in at the Client
Site as a result of these interactions. TruEffect(sm) measurement will allow
Client to directly relate user activity within the Client Site to marketing
messages within the Excite Network. As a result of these measurements, Client
will have the ability to optimize campaigns in order to drive actual user
activities or transactions. Client will be able to identify the number of
unique visitors coming to the Client Site or promotional areas, from which
message and area they originated, and the number of measurable transactions
these visitors performed. Additionally, measurements of reach and frequency
will accompany this analysis.
Upon successful implementation of TruEffect(sm), performance reporting will be
available to Client on a daily basis through an online interface.
LANDSCAPE(sm)
LandscapE(sm) demographic profile reports will afford Client an effective means
of understanding the visitor segments exposed to Client's messages or
interacting with Client sponsored content areas within the Excite Network. All
of the information contained within the demographic profiles is derived from
consumers who have been both exposed to an advertising campaign and are also
within MatchLogic's Digital 1:1(sm) database (MatchLogic's proprietary consumer
database). When a subset of unique visitors taken from all visitors exposed to
a Client's marketing message or content area are matched against the Digital
1:1(sm) database, demographic profiles are derived. The matched records create
a sample of visitors that are used to demographically represent and
statistically profile
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each visitor segment. These profiles will allow Client to compare its
understanding of its customers offline to its customers online as a basis for
more effective segmenting and future targeting.
LandscapE(sm) reports are generated on a campaign basis and will include
measurements of campaign reach by Age, Gender, Age/Gender, Household Income,
and Household Income/Age. These reports will be made available to Client once
statistically significant profiles have been established.
TRUESELECT(sm)
TrueSelect(sm) is MatchLogic's centralized advertising targeting system.
TrueSelect(sm) enables MatchLogic to project demographics of users across the
Internet based on our Digital 1:1 database, user traffic and user search
patterns. The first implementation of this technology will be Virtual Keywords
slated for release in 4Q98. Virtual Keywords will allow MatchLogic to actively
target a user on the Excite Network based on the user's input of search terms
at a previous point in time. TrueSelect(sm) will be able to track and target
users by Virtual Keywords on both an inter-day and intra-day basis. Following
Virtual Keywords, TrueSelect(sm) capabilities will enable marketers to actively
target specific users based on predetermined demographic or lifestyle
information in real time.
Upon release of this technology, delivery of TrueSelect(sm) targeted messaging
for Client is highly dependent on a number of qualifying criteria. A critical
qualifier for the implementation of TrueSelect(sm) will be the establishment of
a significant behavioral profile target for Client's customers as highlighted
within the LandscapE(sm) services description above.
DELIVERE(sm)
DeliverE(sm), MatchLogic's email marketing service will be leveraged to deliver
email marketing campaigns on behalf of Vitamin Shoppe. The DeliverE(sm) team
will consult with Client to evaluate current business objectives (branding,
acquisition, retention, reactivation, etc.) and develop e-mail strategies that
meet these specific objectives. Once appropriate strategies have been
established, MatchLogic will target both MatchLogic and Excite registered users
for the facilitation of the Client's program. Performance results for these
campaigns will be provided to Client and assist in the development of
strategies for subsequent e-mail campaigns.
Projected delivery schedules for DeliverE(sm) services over the two-year term
of this agreement are as follows:
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[*****]
Above listed DeliverE(sm) services are to be allocated to meet Client's needs
and overall production schedule.
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EXHIBIT C
ANNUAL IMPRESSION DELIVERY SCHEDULE
Vitamin Shoppe Industries
WC/Excite Placement Details *LINE ITEM PLACEMENTS AND IMPRESSIONS ARE
ESTIMATES ONLY AN WILL CHANGE OVER TIME
EXHIBIT C
[*****]
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[*****]
During the term of the Agreement, the parties agree to cooperate in good faith
and use commercially reasonable efforts to evaluate the quality and performance
of the placements used to deliver the impressions described in the Agreement
and to modify such placements in an effort to reach the objectives set forth in
this Agreement.
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EXHIBIT D
CLIENT'S COMPETITORS
[ * * * * * ]
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