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EXHIBIT 10.6
AGREEMENT
THIS AGREEMENT (this "Agreement"), is made and entered into as of the
_______ day of June ___, 1998 (the "Effective Date") by and between XXXXX.XXX
NETWORKS, a California corporation ("XXXXX.XXX" or the "Company") and RODALE
PRESS, INC., a Pennsylvania corporation ("Rodale"), (Rodale and XXXXX.XXX are
sometimes referred to herein collectively as the "Parties" and individually as a
"Party").
WHEREAS, XXXXX.XXX has developed informational Web sites, including in
conjunction with Rodale pursuant to that certain Website Agreement, dated May 2,
1997, (the "Initial Website Agreement"), and the parties desire to further
mutually develop an additional cobranded site.
NOW, THEREFORE, in consideration of the representations, warranties and
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties hereby
agree as follows:
1. COBRANDED SITE. XXXXX.XXX agrees to invest no fewer than [*] ("Directed
Funds") for the development of a co-branded website with Rodale, which website
will be based upon content from New Woman Magazine (the "Co-Branded Site"), upon
terms to be mutually agreed upon by XXXXX.XXX and Rodale in the Co-Branded Site
Agreement (as hereinafter defined). Promptly following the Effective Date, the
parties will enter into good-faith negotiations for a period of sixty (60) days,
or such longer period as the parties may agree to in writing (the "Negotiation
Period"), with the goal of entering into a mutually acceptable agreement with
respect to the development and maintenance of the Co-Branded Site (the
"Co-Branded Site Agreement). The business terms for the Co-Branded Site
Agreement will be based upon and similar to those set forth in the Initial
Website Agreement. All Directed Funds will contribute to the Investment
Differential (which shall be defined and set forth in the Co-Branded Site
Agreement, and shall be reflect methodology similar to that found in the
definition of Investment Differential set forth in the Initial Website
Agreement). In addition, Rodale will be obligated, as it is in the Initial
Website Agreement, to provide content and cross promotion for the Co-Branded
Site.
2. ONLINE TRANSACTIONS. Xxxxx.xxx agrees to invest [*] within the twelve months
following the effective date of such agreement in an effort to develop a system
for conducting on-line business transactions. Such investment will include, but
not be limited to, equipment purchases and the licensing of appropriate
software, as well as allocation of headcount and other resources as reasonably
necessary to develop and maintain such transactions systems.
3. AUDIT RIGHT. XXXXX.XXX agrees that it shall provided to Rodale on a timely
basis a statement (the "Statement"), prepared in accordance with generally
accepted accounting principles, detailing the expenditures made by XXXXX.XXX in
satisfaction of its obligations pursuant to Sections 1 and 2 of this Agreement.
Rodale may at its own expense and upon no fewer than ten (10) days prior written
notice to XXXXX.XXX, designate independent auditors or accountants (the
"Auditor") to examine or audit XXXXX.XXX's records relevant to the
*Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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Statement to verify the figures reported, such audit to be conducted in a
manner calculated to minimize interference with XXXXX.XXX's business. In the
event that the Auditor determines that the actual amount invested by XXXXX.XXX
pursuant to Sections 1 and 2 is less than ninety-five percent (95%) of the
amount reported by XXXXX.XXX in the Statement (an "Underexpenditure"), then
XXXXX.XXX shall pay the cost of such Audit. Further, in the event such
Underexpenditure signifies a failure on the part of XXXXX.XXX to invest the
amounts required by Sections 1 and/or 2, the XXXXX.XXX shall remedy such failure
by making appropriate expenditures consistent with the terms of Sections 1 and 2
within sixty (60) days after XXXXX.XXX's receipt of written notice of such
Underexpenditure.
4. CONFIDENTIALITY.
(a) CONFIDENTIALITY. The Parties will each regard and preserve as strictly
confidential all information and material, including, but not limited to,
non-public information included as part of the transactions contemplated hereby
and all other material or information, including without limitation, customer or
client information, provided to one another in connection with the development
of the Co-Branded Site (hereinafter, "Confidential Information"). Each Party
shall not use the Confidential Information of the other Party except as
necessary to fulfill its obligations under this or any other related agreements
between the parties. Further, each Party agrees not to disclose the Confidential
Information of the other Party to any except those of its employees, consultants
and agents who have been apprised of the confidential nature of such information
and are under a written obligation, consistent with this Section, to maintain
the confidentiality of the other Party's Confidential Information. Each of the
Parties agrees that, except as provided in this Agreement or as otherwise agreed
by them in writing, it shall not use the Confidential Information of the other
Party for its own benefit or for the benefit of any third Person. The Parties
agree that they each will have no obligation in connection with specific
Confidential Information of the disclosing Party to the extent that: (i) such
Confidential Information is already known to the receiving Party, free from any
obligation to keep such Confidential Information confidential at the time it was
obtained from any other Party; (ii) such Confidential Information is or becomes
publicly known through no wrongful act of the receiving Party or any third
Person owing a duty of confidentiality to the disclosing Party; (iii) such
Confidential Information is rightfully received by the receiving Party from a
third Person without restriction and without breach of this Agreement or any
obligation of such third Person to the disclosing Party; or (iv) such
Confidential Information is independently developed by the receiving Party
without reference to the Confidential Information of the disclosing Party. Upon
the request of the disclosing Party, following the termination or expiration of
this Agreement, all tangible and machine readable copies of any Confidential
Information of the disclosing Party in the possession or under the control of
the Receiving Party shall, at the disclosing Party's request, be returned to the
disclosing Party or destroyed, and the receiving Party shall confirm in writing
to the disclosing Party that such destruction has taken place. Notwithstanding
anything contained herein to the contrary, the obligations set forth in this
Section shall not apply to a receiving Party to the extent that the receiving
Party is required by order of court or any other governmental agency, or
otherwise by law, to disclose the Confidential Information of the other Party;
under such circumstances, the receiving Party agrees to give such notice to the
disclosing Party as is reasonably possible under the circumstances in order to
permit the disclosing Party to take legal action in an effort to limit or
prevent such disclosure.
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5. LIMITATION OF LIABILITY. NEITHER PARTY SHALL BE LIABLE TO THE OTHER, IN ANY
CIRCUMSTANCES, FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY,
PUNITIVE OR SIMILAR NON-DIRECT DAMAGES THAT MAY ARISE OUT OF THIS AGREEMENT.
6. TERM OF AGREEMENT.
(a) TERM AND TERMINATION. This Agreement shall be in effect from and
after the Effective Date until the date the parties enter into the Co-Branded
Site Agreement.
(b) SURVIVAL. The following Sections or provisions of this Agreement
shall survive any termination of this Agreement: 4, 6(b), and 7.
7. GENERAL.
(a) INDEPENDENT CONTRACTOR. The Parties agree that each Party is an
independent contractor and that no Party is an agent of the other. No Party will
be entitled to compensation for its services hereunder except as expressly
provided herein, or in any separate agreements entered into between the Parties
from time to time. No Party will have any authority to make any agreements or
representations on behalf of any other Party or to hold itself out to be an
agent, or representative of any other Party.
(b) PUBLIC ANNOUNCEMENTS. The Parties will jointly coordinate press and
other public announcements of Rodale's involvement in XXXXX.XXX in order to
maximize public, investor and advertiser interest. Such announcements may not be
used until XXXXX.XXX shall have received written notice from Rodale that it may
use such announcements.
(c) NOTICE. All notices shall be in writing and will be delivered
personally or sent by confirmed facsimile transmission, or overnight carrier at
the addresses specified below:
If to Rodale: If to XXXXX.XXX:
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Attn:
Fax: (000) 000-0000
Any Party may change the person or the address to which notices are directed by
giving written notice to the other Party in accordance with this Section.
Personally delivered or confirmed facsimile notices will be deemed given when
delivered. Notices sent by overnight carrier will be deemed given on the second
business day after dispatch. Notwithstanding the foregoing, notices of change of
address will be deemed given only upon receipt by the Party to which it is
directed.
(d) JURISDICTION. This Agreement shall be construed in accordance with the laws
of the State of New York, as such laws are applied to agreements made, entered
into and performed entirely in New York and solely by New York State residents.
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(e) MODIFICATION. No modification, amendment, supplement to or waiver of
any provision of this Agreement shall be binding upon the Parties unless made in
writing and duly signed by all of the Parties.
(f) WAIVER. A failure of any Party to exercise any right provided for
herein shall not be deemed to be a waiver of any right hereunder.
(g) SEVERABILITY. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity without invalidating the remainder of such
provision or the remaining provisions of this Agreement. Any unenforceable
provision will be replaced by a mutually acceptable provision that comes closest
to the intention of the Parties at the time the original provision was agreed
upon.
(h) HEADINGS. The headings of this Agreement are for purposes of
reference only and shall not in any way limit or otherwise affect the meanings
or interpretations of any of the terms hereof.
(i) ASSIGNMENT. This Agreement and the rights and obligations of the
Parties hereunder shall not be assigned or delegated by any Party to any other
Person without the prior written consent of the other Party.
(j) FURTHER ASSURANCES. The Parties agree to execute and deliver, or to
cause to be executed and delivered, such further instruments or documents, and
take such other actions as may be reasonably required effectively to carry out
the transactions contemplated herein, in each case provided the same do not
impose any additional liabilities or obligations upon the Parties.
(k) INJUNCTIVE RELIEF. The Parties each acknowledge and agree that
either Party will be irreparably harmed as a result of a breach by the other
Party of Section 4 of this Agreement and that it would be difficult, if not
impossible, to measure the damages resulting from such a breach. Accordingly, in
the event of any actual or threatened breach by either Party of Section 4, the
non-breaching Party shall, in addition to any other legal remedies permitted
hereunder or by applicable law, be entitled to obtain equitable remedies from a
court of competent jurisdiction, without the need for any bond or security,
including, without limitation, specific performance, a temporary restraining
order or a permanent injunction to prevent or otherwise restrain a breach
thereof and to recover all costs and expenses, including, without limitation,
reasonable attorneys' fees, incurred in enforcing the terms of Section 4.
(l) COMPLIANCE WITH LAWS. This Agreement and the Parties' actions under
this Agreement shall comply with all applicable federal, state, and local laws,
rules, regulations, court orders, and governmental or regulatory agency orders.
(m) ENTIRE AGREEMENT. This Agreement, sets forth the entire and sole and
exclusive understanding and agreement between the Parties in connection with the
subject matter hereof and incorporates, replaces, and supersedes all prior
agreements, promises, proposals, representations, understandings and
negotiations, written or not, between the Parties. The making, execution, and
delivery of this Agreement have been induced by no representations, statements,
warranties or agreements other than those expressed herein.
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IN WITNESS WHEREOF, the Parties have signed this Agreement as of the
Effective Date.
RODALE PRESS, INC.
By: /s/ Xxxxxxx Xxxxxx
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Title: Director of Publishing
XXXXX.XXX
By: /s/ Xxxxxxx X. XxXxxxxx
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Title: CEO and President
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