EXHIBIT 10.13
IWON CONTENT AGREEMENT
This CONTENT AGREEMENT (THE "AGREEMENT") CONNECTIVCORP/XXXXXXXXX.XXX, whose
address is 00 Xxxx 00xx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Company")
and iWon, Inc. ("iWon") whose address is Xxx Xxxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxx
00000 shall be effective as of November 27, 2000 (the "Effective Date").
In consideration of the mutual promises contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. LICENSES AND OWNERSHIP.
1.1 CONTENT LICENSE. Company hereby grants iWon, a royalty-free,
non-exclusive, non-transferable worldwide license to exhibit, display, archive,
transmit, e-mail, reproduce, reformat, modify, search and download all or any
part of the content listed on Exhibit A to this Agreement (the "Content") in
electronic form in connection with iWon-branded or co-branded media properties
(the "Properties") developed by iWon or any entity in which iWon owns at least
a twenty percent interest ("Affiliates") as such Properties may be distributed
through any medium or means now known or hereafter developed and to allow users
of the Properties to search, copy, transmit and download the Content. iWon shall
have the right to sublicense the rights set forth herein to any Affiliate for
inclusion in the Properties provided that the sublicensee comply with the terms
and conditions of this Agreement.
1.2 LIMITATIONS. The rights granted in Paragraph 1.1 above shall be
limited as follows:
(a) iWon shall include all reasonable credits, copyright notices,
trademarks, service marks, trade names and logos which are contained on the
Content provided to iWon (the "Marks") and iWon shall in no event omit, vary or
otherwise change any of the Marks including without limitation, the size, color
or style of the Marks.
(b) iWon's right to modify and reformat the Content shall be limited to
modifying and reformatting the Content to (i) fit the iWon look and feel; (ii)
fit the format of the applicable Property; and (iii) to creating snippets or
teasers consisting of a selected line from any individual item of the Content
(the "Company Article").
(c) iWon's right to send by e-mail (or similar technology) the Content
shall be limited to e-mailing Company Articles on behalf of users of the
Properties ("iWon Users") who have selected to have such Company Articles
e-mailed to a third party for personal non-commercial use and the inclusion of
Company Articles in e-mail communications sent by iWon to iWon Users.
1.3 LICENSE TO USE COMPANY TRADEMARKS. Subject to reasonable trademark
guidelines (to the extent they are provided by Company to iWon from time to
time), Company hereby grants to iWon a royalty-free, non-exclusive,
non-transferable, worldwide license to use and display the Marks on the
Properties and on marketing and promotional materials relating to this
Agreement.
1.4 OWNERSHIP.
1.4.1 iWon hereby acknowledges and agrees that, as between Company
and iWon, Company is the sole owner of all right, title and interest in and to
(i) the Content, including all copyrights therein, and (ii) the Marks. iWon
agrees not to do anything to contest or impair the trademark rights of the
Company. All uses of the Marks shall inure to the benefit of Company. Upon any
expiration or termination of this Agreement, iWon shall delete and discontinue
use of the Marks.
1.4.2 Company hereby acknowledges and agrees that, as between
Company and iWon, iWon is the sole owner of all right, title and interest in and
to all content on the Properties, including but not limited to iWon copyrights,
trademarks service marks, trade names and logos (excluding the Content and
Marks).
1.4.3 iWon agrees to notify Company promptly of any unauthorized use
of the Marks of which it has actual knowledge. Company shall have the sole right
and discretion to bring proceedings alleging infringement of the Marks or unfair
competition related thereto; provided however, that iWon agrees to provide
Company with its reasonable cooperation and assistance, at Company's expense,
with respect to any such infringement proceedings.
2
1.5 COMPANY ASSISTANCE. In addition to any responsibilities that may be set
forth in Section 4 and Exhibit A, Company will provide on-going assistance to
iWon with regard to technical, administrative, and service-oriented issues
relating to the utilization, transmission, and maintenance of the Content, as
iWon may reasonably request. Company will use its best efforts to ensure that
the Content is accurate, comprehensive, and updated regularly.
1.6 USE OF CONTENT. In no event is iWon under any obligation to include all or
a part of the Content on any of the Properties.
2. Fees. During the term of this Agreement, payment to iWon shall be made as
set forth in Exhibit B to this Agreement.
3. CONTENT PAGES. iWon shall at its reasonable discretion place the
content on the Sex & Relationships sub-channel or equivalent on the iWon
Website. iWon shall create the links from a location on the Properties
displaying the full text of a Company Article (the "Content Page") to the
Company Website as further described in Exhibit A. In no event shall iWon
place any links to the Company Website on portions of the Properties
displaying only snippets, teasers, or portions of a Company Article.
4. DELIVERY. Company shall make available the Content to iWon on January
1st, 2001 thereafter all updates shall be provided by Company, in the method,
format, manner and at the times set forth on Exhibit A. Company will be
responsible for providing the Content at its expense.
5. ADVERTISING SALES AND EXCHANGE. iWon will have the sole and exclusive
right to license or sell promotions, advertisements, links, pointers,
sponsorships, or similar services or rights ("Advertisements") on the
Properties, including the Content Pages. Upon thirty (30) days notice to
Company, Company or iWon shall serve run of-site Advertisements (or targeted
Advertisements if mutually agreed to between the parties) promoting iWon or a
promotion in which iWon is involved ("iWon Advertisements") on the Company
Website at any time during the term of this Agreement and upon request by
Company and in compliance with iWon's then-current advertisement standards
and guidelines, iWon shall serve the Advertisements promoting Company on the
iWon Website in an amount equal to the value of iWon Advertisements served on
Company Website. PRIOR TO THE EXECUTION OF THIS AGREEMENT, COMPANY SHALL
EXECUTE THE IWON INSERTION ORDER FOR THE PURCHASE OF ONE HUNDRED THOUSAND
DOLLARS ($100,000 IN ADVERTISING)
6. PAGE USAGE. iWon shall use reasonable efforts to provide Company, within
thirty (30) days from the end of each month during the term of this Agreement, a
report stating the number of times the Content Pages are displayed.
7. TERM AND TERMINATION:
7.1 Term. The term of this Agreement (the "Initial Term") shall
commence on the Effective Date and will continue for two years from the date
any Content is first displayed on any Property, as reasonably determined by
iWon (the "Launch Date"). iWon shall have the right to terminate this
Agreement on and any time twelve (12) months after the Launch Date with sixty
(60) days prior written notice. After the expiration of the Initial Term,
this Agreement will revert to a month-to-month contract, which either party
can terminate with thirty (30) days written notice.
7.2 BREACH. In the event of any material breach of any term or provision
under this Agreement by either party hereto, the non-breaching party may send a
written notice explaining the nature of the breach to the breaching party. If
any breach is not cured within thirty (30) days of receipt by the breaching
party of such notice, the non-breaching party may terminate this Agreement
immediately upon a second written notice to the breaching party.
7.3 FAILURE TO DELIVER. If Company fails to deliver the Content on the
times specified in Exhibit A for a continuous period of forty-eight (48) hours,
iWon may terminate this Agreement by giving a written termination notice, which
termination shall become effective upon receipt.
7.4 BANKRUPTCY. In the event either party voluntarily files a petition in
bankruptcy or has such a petition involuntarily filed against it (which petition
is not discharged within thirty (30) days after filing) or is placed in a
receivership or reorganization proceeding or is placed in a trusteeship
involving an insolvency, or dissolves or ceases to do business or makes an
assignment of all or substantially all of its assets for the benefit of
creditors, the other party may terminate this
3
Agreement by giving a written termination notice, which termination shall become
effective upon receipt.
7.5 MERGER: ACQUISITION. iWon may immediately terminate this Agreement,
which termination will be effective upon receipt, if a competitor of iWon merges
with, acquires in whole or in part, or purchases all or substantially all of
Company's assets.
7.6 FORCE MAJEURE. Either party may terminate this Agreement in accordance
with Section 11.3 hereof.
7.7 EFFECT OF TERMINATION: SURVIVAL. A party's right to terminate this
Agreement pursuant to this Section 7 shall be in addition to any other right or
remedy available to such party under this Agreement, in law or at equity. Upon
expiration or termination of this Agreement for any reason:
(a) all licenses granted hereunder shall terminate, and both parties
shall immediately discontinue use, if any, of the other party's trademarks,
Confidential Information, Content, and other intellectual property; and iWon
shall eliminate all hyperlinks (and corresponding icons) or other connections
designated on Exhibit A;
(b) within fifteen (15) days of the termination or expiration of
this Agreement, each party shall return to the other party their respective
Confidential Information or destroy the same. In the event of such destruction,
the destroying party shall provide written confirmation of such destruction to
the other party within thirty (30) days of such destruction; and
(c) the parties' obligations under Sections 7.7, 8, 9, 10 and 11
shall survive any expiration or termination of this Agreement.
8. PRESS RELEASES. Subject to approval by iWon Company shall have ability
to issue press release. Neither party shall make any public statement, press
release or other announcement relating to the subject matter of this
Agreement without the prior written approval of the other party, such
approval not to be unreasonably withheld or delayed. Following the initial
public announcement of the business relationship between the parties in
accordance with the approval and other requirements contained herein, either
party's subsequent factual reference to the existence of a business
relationship between the parties in press releases or other public
announcements will not require the prior approval of the other party.
9. CONFIDENTIALITY:
9.1 CONFIDENTIAL INFORMATION. "Confidential Information" means (a)
business or technical information of either party, including but not limited to
information relating to either party's product plans, designs, costs, product
prices and names, finances, marketing plans, business opportunities, personnel,
research, development or know-how; (b) any information designated by either
party as "confidential" or "proprietary;" and (c) the terms and conditions of
this Agreement.
9.2 NON-DISCLOSURE. Each party agrees: (a) that it will not disclose to
any third party or use the Confidential Information disclosed to it by the other
party except as expressly permitted in this Agreement; and (b) 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.
9.3 EXCEPTIONS. "Confidential Information" will not include information
that: (a) is in or enters the public domain without breach of this Agreement;
(b) the receiving party lawfully receives from a third party without restriction
on disclosure and without breach of a nondisclosure obligation; (c) the
receiving party knew prior to receiving such information from the disclosing
party through no breach of confidentiality; or (d) the receiving party develops
independently without use of the disclosing party's Confidential Information as
evidenced by suitable written documentation.
10. WARRANTIES, REPRESENTATIONS AND INDEMNIFICATION:
10.1 REPRESENTATIONS AND WARRANTIES.
10.1.1 BV IWON. iWon represents and warrants that (a) iWon has full
power and authority to enter into this Agreement, to cony out its obligations
hereunder, and to grant the rights herein granted; and (b) the execution and
delivery of this Agreement and the
4
transactions contemplated hereby do not and will not result in a breach,
violation or default, of iWon's articles of incorporation or bylaws, or any
agreement to which iWon may be bound.
10.1.2 BY COMPANY. Company represents and warrants that (a) the
Content and all materials contained therein and any Links to other materials do
not and will not infringe or violate the intellectual property rights, moral
rights, publicity right, privacy right or personality right of any third party
or otherwise result in any tort, injury, damage or harm to any third party, and
Company's exercise of its rights under this Agreement will not constitute an
infringement or violation of the intellectual property rights of any third
party; (b) Company has sufficient rights to the Content to grant iWon the rights
set forth in this Agreement, including any necessary consent, authorization,
release, clearance or license of any third party ("Release"), including any
Release related to any rights of privacy or publicity, as may be necessary for
Company to enter into this Agreement; (c) Company has full power and authority
to enter into this Agreement, to carry out its obligations hereunder, and to
grant the rights herein granted; (d) the execution and delivery of this
Agreement and the transactions contemplated hereby do not and will not result in
a breach, violation or default of Company's articles of incorporation or bylaws,
or any agreement to which Company may be bound; (e) the Content does not contain
any material or information that is libelous, slanderous, defamatory or obscene;
and (f) Company will not knowingly or as a result of its negligence deliver
Content that contains material errors or omissions.
10.2 INDEMNIFICATION.
10.2.1 Subject to compliance with Section 10.2.2 hereof, each party (the
"Indemnifying Party") will defend, indemnify and hold harmless the other party
(the "Indemnified Party"), and the respective directors, officers, employees,
agents and affiliates of the Indemnified Party, from and against any and all
claims, costs, losses, damages, judgments and expenses (including reasonable
attorneys' fees) arising out of, relating to, or incurred as a result of (a) any
failure by the Indemnifying Party to perform its obligations under this
Agreement; (b) the breach or inaccuracy of a representation or warranty made by,
or breach of a covenant of, the Indemnifying Party hereunder; (c) the negligence
or willful misconduct of the Indemnifying part in performance of its obligations
under this Agreement; and (iv) any actual or alleged misconduct violation of
applicable law in connection with Indemnifying Party's activities hereunder.
10.2.2 The Indemnified Party shall promptly notify the Indemnifying Party
of any such claim of which it becomes aware and shall: (a) at the Indemnifying
Party's expense, provide reasonable cooperation to the Indemnifying Party in
connection with the defense or settlement of any such claim; and (b) at the
Indemnified Party's expense, be entitled to participate in the defense of any
such claim.
10.2.3 The Indemnified Party agrees that the Indemnifying Party shall have
sole and exclusive control over the defense and settlement of any such third
party claim. However, the Indemnifying Party shall not acquiesce to any judgment
or enter into any settlement that adversely affects the Indemnified Party's
rights or interests without prior written consent of the Indemnified Party.
10.3 DISCLAIMERS AND LIABILITY:
10.3.1 DISCLAIMER OF OTHER WARRANTIES. EXCEPT AS SPECIFIED IN THIS
AGREEMENT, NEITHER PARTY MAKES ANY WARRANTY IN CONNECTION WITH THE SUBJECT
MATTER OF THIS AGREEMENT AND EACH PARTY HEREBY DISCLAIMS ANY AND ALL WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND THE PROPERTIES ARE
PROVIDED "AS IS" AND "AS AVAILABLE".
10.3.2 LIMITATION OF LIABILITY. EXCEPT AS PROVIDED IN SECTION 10.2
AND FOR A BREACH OF SECTION 9, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE
OTHER FOR LOST PROFITS, OR ANY FORM OF SPECIAL, INCIDENTAL, OR CONSEQUENTIAL
DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR
OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT
SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
5
EACH PARTY'S LIABILITY (WHETHER ARISING IN TORT, CONTRACT OR OTHERWISE AND
NOTWITHSTANDING ANY FAULT, NEGLIGENCE (WHETHER ACTIVE, PASSIVE OR IMPUTED),
PRODUCT LIABILITY OR STRICT LIABILITY OF A PARTY) UNDER THIS AGREEMENT OR WITH
REGARD TO ANY OF THE SERVICES RENDERED UNDER THIS AGREEMENT WILL IN NO EVENT
EXCEED $1,000.
10.3.3 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
AGREEMENT OR ANY SCHEDULE HERETO, OR ANY COURSE OF CONDUCT, COURSE OF DEALING OR
STATEMENTS (WHETHER VERBAL OR WRITTEN) MADE BY THE PARTIES HEREIN.
11. MISCELLANEOUS:
11.1 NOTICES. Any notice required or permitted to be given under this
Agreement shall be given in writing and shall be delivered by personal delivery,
telegram, receipted facsimile transmission or by certified or registered mail,
postage prepaid, return receipt requested, and shall be deemed given upon
personal delivery, five (5) days after deposit in the mail or upon
acknowledgment of receipt of electronic transmission. Notices shall be sent to
the signatory of this Agreement at the address set forth at the beginning of
this Agreement or such other address as either party may specify in writing.
11.2 WAIVER OR DELAY. Any waiver of any kind or character by either party
of a breach of this Agreement must be in writing, shall be effective only to the
extent set forth in such writing, and shall not operate or be construed as a
waiver of any subsequent breach by the other party. No failure of either party
to insist upon strict compliance by the other with any obligation or provision
hereunder, and no custom or practice of the parties at variance with the terms
hereof, shall constitute a waiver of either party's right to demand exact
compliance with the terms of this Agreement. Nor shall either party's delay or
omission in exercising any right, power or remedy upon a breach or default by
the other party impair any such right, power or remedy. The exercise of any
right or remedy provided in this Agreement shall be without prejudice to the
right to exercise any other right or remedy provided by law or equity.
11.3 FORCE MAJEURE. If by reason of labor disputes, strikes, lockouts,
action of the elements, governmental restrictions, appropriation or other
similar causes beyond the control of a party hereto (a "Force Majeure Event"),
such party is unable to perform in whole or in part its obligations as set forth
in this Agreement, then such party shall be relieved of those obligations to the
extent it is so unable to perform and such inability to perform shall not make
such party liable to the other party (the "Non-Affected Party") and such party
shall give notice to the Non-Affected Party. Neither party shall be liable for
any loss, injury, delay or damages suffered or incurred by the other party due
to the above causes. If a Force Majeure Event continues for a period of at least
seventy-two (72) continuous hours, the Non-Affected Party may terminate this
Agreement by giving a written termination notice, which termination shall become
effective upon receipt.
11.4 SEVERABILITY. The provisions of this Agreement are severable and if
any one or more of such provisions shall be determined to be invalid, illegal or
unenforceable, in whole or in part, the validity, legality and enforceability of
any of the remaining provisions or portions thereof shall not in any way be
affected or impaired thereby and shall nevertheless be binding between the
parties hereto.
11.5 GOVERNING LAW; DISPUTES. This Agreement will be governed by and
construed in accordance with the laws of the State of New York without regard to
its conflicts of laws principles. Any litigation under this Agreement will be
brought in the federal or state courts in the State of New York and the parties
hereby consent to the personal jurisdiction and venue therein.
11.6 ASSIGNMENT. Neither party shall directly or indirectly assign this
Agreement without the prior written consent of the other party. Notwithstanding
the foregoing and subject to Section 7.5 hereof, either party may, without the
prior consent of the other party, assign or transfer this Agreement as part of a
corporate reorganization, consolidation, merger or sale of all or substantially
all of its assets to another entity provided said entity assumes all of such
party's obligations hereunder.
6
11.7 RELATIONSHIP OF THE PARTIES. Nothing contained in this Agreement
shall be construed as creating any agency, partnership, or other form of joint
enterprise between the parties. The relationship between the parties shall at
all times be that of independent contractors. Neither party shall have authority
to contract for or bind the other in any manner whatsoever.
11.8 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
11.9 ENTIRE AGREEMENT. This Agreement (together with the Exhibits hereto)
constitutes the entire agreement and understanding between the parties hereto
with respect to the subject matter hereof and supersedes any and all other
agreements, written or oral, that the parties heretofore may have had with
respect to the subject matter herein.
11.10 THIRD PARTY BENEFICIARIES. Nothing in this Agreement, express or
implied, is intended to confer upon any person or entity other than the parties
and their respective successors and assigns, any rights, remedies, obligations
or liabilities.
11.11 COMPLIANCE WITH LAWS. Each party shall comply with all applicable
laws, regulations, rules, ordinances, and orders regarding its respective
activities related to this Agreement.
11.12 HEADINGS. Headings and captions are for convenience only and are not
to be used in the interpretation of this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the Effective Date by their duly authorized representatives:
CONNECTIVCORP/XXXXXXXXX.XXX
By: /s/ Xxxxxx Xxxxxxx
---------------------------
Name: Xxxxxx Xxxxxxx
-------------------------
Title: Chief Operating Officer
------------------------
IWON, INC.
By: /s/ Xxx Xxxxxxxxxx
---------------------------
Name: Xxx Xxxxxxxxxx
-------------------------
Title: VP, Content
------------------------
EXHIBIT A
SPECIFICATIONS
1. CONTENT
-------
Description of Content Delivery Method Frequency
--------------------------------------------------------------------------------
A. 10 to 12_ Sexual By email to iWon 10 to 12_questions and
Health Questions and answers a month for the term
Answers of the Agreement
--------------------------------------------------------------------------------
B. 10 to 12_ Sexual By email to iWon 10 to 12 sexual health related
Health related facts and facts and figures a month for
figures the term of the Agreement,
not to exceed one a day
--------------------------------------------------------------------------------
C. One article of each By email to iWon 10 to 12 sexual health related
of the following: articles from the categories
a) STDs; outlined in the description of
b) Sex and content or other sexual health
relationship; articles at discretion of
c) Sex and Company a month for the term
parenting; of the agreement
d) Reproductive
Health; and
e) Menopause
--------------------------------------------------------------------------------
2. Link The following links shall appear on each Content Page:
a) A "powered by" link on each Content Page with the xxxxxxxxx.xxx logo
linked to Company website will be provided at the top of each content
page provided by Xxxxxxxxx.xxx.
b) A text link and Company slogan shall appear on the bottom of
each Content Page linking to the Company Website. The text link to state
"Visit Xxxxxxxxx.xxx for more information" and the slogan shall read
"Your authoritative site for Expert Information on Sexual Health."
EXHIBIT B
PAYMENT TERMS
iWon and Company shall split the monthly Advertising Revenues generated on the
Content Page seventy percent (70%) to iWon and thirty percent (30%) to Company.
"Advertising Revenues" means the aggregate amounts received by Company or
iWon, as applicable arising from the license or sale of Advertisements less
applicable Advertising Sales Commissions and sales tax.
"Advertising Sales Commission" means (i) actual amounts paid as commission to
a third party agency or agencies by either buyer or seller in connection with
sale of advertisements or (ii) 25%, in the event that Company and/or iWon has
sold the advertisement directly and will not be deducting any third party
agency commissions.
