EXHIBIT 10.10
DATABASE MANAGEMENT AND DIRECT MARKETING AGREEMENT
This agreement between ConsumerNet with it's principal place of business at 0-00
Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxxxx 00000, together with its affiliates,
subsidiaries and successors, ("ConsumerNet"), and xXxxxx.xxx with its principal
place of business at 0000 Xxxxxxxxx Xxxxxxxxx, Xxxxxxxxx Xxxxx, Xxxxxxx 00000
together with its affiliates, subsidiaries and successors ("The Company"), is
made and entered into this _____ day of August, 1999 (the "Effective Date").
WHEREAS, "The Company" is an owner of publications and sites on the World Wide
Web located at XXX.XXXXXX.XXX (the "Company Site"); and
WHEREAS, ConsumerNet maintains a site on the World Wide Web located at
"xxx.xxxxxxxxxxx.xxx", ("ConsumerNet Site"); and
WHEREAS, ConsumerNet desires to collect, manage and market end-user information
for The Company; and
WHEREAS, The Company is willing to provide all reasonable assistance to enable
ConsumerNet to collect end-user information from the Company site ("Company Site
Users") and to provide access to the ConsumerNet Site from the Company Site.
NOW THEREFORE, in consideration of the foregoing, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
1. ENGAGEMENT.
The Company hereby engages ConsumerNet as its consumer database manager
to manage information collected from Company Site Users and other
end-users who elect to receive information from The Company,
ConsumerNet or other third party providers and to market such
information to direct marketers and other clients ConsumerNet may
obtain through brokerage channels.
2. "THE COMPANY'S" OBLIGATIONS.
1. The Confidential Alliance Member Cancellation Agreement
will be contingent upon the representation and warrant of the
quality of the database and upon the confirmation of 3rd party
opt-in status. All opt-in data ConsumerNet receives will
contain the following demographic information: firm name, last
name, e-mail address, zip code, gender, age, height and
weight. Additionally, this Cancellation Agreement will be
based upon the continued and regular transfer of demographic
data, collected on the eDiets Web site, to ConsumerNet.
2. The Company grants to ConsumerNet the right to publicly
display The Company site in all promotion, advertising and
other materials relating to distribution of direct marketing
materials through the ConsumerNet site.
3. The Company shall provide ConsumerNet with a list of Opt-In
Company Site Users including the names, e-mail addresses, and
demographic information of Company Site Users in electronic
ASCII format on a continuous basis ("User List(s)"). The User
Lists shall remain the exclusive property of The Company and
ConsumerNet at all times, and will have rights, title and
interest in such User Lists for the purposes contemplated by
this Agreement. Please refer to the Confidential Alliance
Member Cancellation Agreement for revisions pertaining to this
subsection.
3. CONSUMERNET'S OBLIGATIONS.
ConsumerNet shall provide the technology to implement registration
forms for Company Site Users to register for the ConsumerNet Service in
accordance with this Agreement.
3.1 ConsumerNet grants to The Company a non-exclusive,
non-transferable, royalty-free license to incorporate, use and
distribute the ConsumerNet Site on The Company Site during the
Term (as defined in Section 6 below) of this Agreement,
subject to the terms and conditions herein.
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3.2 At ConsumerNet's option, ConsumerNet may promote the
availability of the ConsumerNet Site on The Company Site by
maintaining a link to The Company Site.
3.3 ConsumerNet shall use its best efforts to manage and
market The User Links to direct marketers who use ConsumerNet
Service and to other customers ConsumerNet may obtain through
other list brokerage channels.
3.4 ConsumerNet shall be responsible for and handle all
merge/purge, subscribe/unsubscribe requests, servicing and
mailing of The User Lists, and processing customer orders. The
Company shall maintain the lists as Opt-In lists that the
Company Site Users can join voluntarily.
3.5 ConsumerNet shall continue to prominently post a notice on
the ConsumerNet Site that Company Site Users may "unsubscribe"
to the ConsumerNet Service at any time. ConsumerNet shall
promptly "unsubscribe" any Company Site User upon receipt of a
request to do so from a Company Site User.
4. SCHEDULE.
Within thirty (30) days of the Effective Date, the parties shall use
their best efforts to link the ConsumerNet Site to The Company Site,
and to create and establish any and all co-branded pages.
5. FEES.
1. For the service, rights and licenses provided hereunder,
ConsumerNet shall pay The Company a fee of fifty percent (50%)
of the Net Revenues (defined below) collected by ConsumerNet
for the rental of The User Lists. ConsumerNet shall have the
rights to employ another broker to market The User Lists,
subject to the terms of this Agreement. ConsumerNet may pay
such other broker a portion of its share of the Net Revenues,
in its sole discretion. The current price for use of each name
on the User List is $.15-$.25 per name, which price is subject
to change at the sole discretion of ConsumerNet. For purposes
of this agreement, "Net Revenues" shall mean the revenues
billed and annually collected by ConsumerNet for each rental
of The User Lists under this Section 5.1. net of all
applicable discounts, returns, and credits in the ordinary
course of business.
2. On the fifteenth business day following the end of each
month, ConsumerNet shall pay The Company the above fee based
on Net Revenues Collected for use of The User Lists during
such prior month. ConsumerNet shall provide The Company with a
monthly statement that shall contain a reasonably detailed
calculation of such fee, and information regarding The User
Lists rental, funds owed and funds collected (the
"Statement"). Any such Statement shall be final and binding on
the parties, unless The Company objects in writing within
sixty (60) days of receipt of the Statement.
3. ConsumerNet shall keep complete and accurate books and records
with respect to the Net Revenues received from the ConsumerNet
Site in accordance with generally accepting accounting
principles. The Company shall have the right to examine
ConsumerNet's books and records concerning the services
rendered hereunder at ConsumerNet's offices and at a mutually
agreeable time.
Any such examination shall be at The Company's sole expense,
unless errors in accounting to The Company's disadvantage
amount to five percent (5%) or more of the total sum paid to
The Company in their accounting period shall be found. In such
event, ConsumerNet shall pay the amount of the error and pay
the reasonable costs of the examination.
6. TERM.
The term of this Agreement shall commence upon execution of this
Agreement and shall end two years after the Effective Date (the
"Initial Term"). This Agreement shall be automatically renewed
thereafter for successive terms of two (2) (each a "Renewal Term"),
unless either party provides written notice of termination to the other
party prior to the expiration of the Initial Term of the then current
Renewal Term. The Initial Term and any current Renewal Term shall be
referred to collectively as the "Term". Notwithstanding the foregoing,
either party may terminate this Agreement for any reason whatsoever
upon ninety (90) days prior written notice to the other party.
7. [ILLEGIBLE]
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1. ConsumerNet represents and warrants that it has the right
to grant the rights granted to The Company hereunder and to
distribute The User Lists through the ConsumerNet Site and
that neither the rights granted to The Company hereunder, nor
the exercise of such rights will infringe upon or conflict
with the rights held by any third party under any trademark,
copyright, trade secret or other proprietary right.
ConsumerNet shall indemnify, defend and hold harmless The
Company, its directors, officers, employees, agents and
assigns from and against any and all losses, claims, damages,
liabilities, judgments, costs and expenses (including
reasonable attorney's fees) resulting from or arising out of
(i) any of the foregoing representations and warranties being
false or inaccurate in any way, or (ii) ConsumerNet material
breach of this Agreement. The Company shall notify ConsumerNet
promptly of any such claim or litigation and shall cooperate
with ConsumerNet in every reasonable way, at ConsumerNet
expense, to facilitate the defense of such claim or
litigation.
2. The Company represents and warrants that it has the right
to grant the rights granted to ConsumerNet hereunder and that
neither the rights granted to ConsumerNet hereunder, nor the
exercise of such rights will infringe upon or conflict with
the rights held by any third party under any trademark,
copyright, trade secret or other proprietary right. The
Company shall indemnify, defend and hold harmless ConsumerNet,
its directors, officers, employees, agents and assigns from
and against any and all claims, losses, damages, liabilities,
judgments, costs and expenses (including reasonable attorneys'
fees) resulting from or arising out of (i) any of the
foregoing representations and warranties being false or
inaccurate in any way, or (ii) The Company's material breach
of this Agreement. ConsumerNet shall notify The Company
promptly of any such claim or litigation and shall cooperate
with The Company in every reasonable way, at The Company's
expense, to facilitate the defense of such claim or
litigation.
8. CONFIDENTIALITY.
In the course of performing this Agreement, each of ConsumerNet and The
Company may be given access to certain confidential and/or proprietary
information and trade secrets relating to the other party's list of end
user names and email addresses, computer systems, World Wide Web Sites,
business operations, strategic plans and other confidential matters
(the "Confidential Information"). Confidential information shall be
deemed not to include any information which (i) at the time of
disclosure or thereafter is generally available to and known by the
pubic (other than as a result of disclosure directly or indirectly by
the parties), (ii) was available to the parties on a non-confidential
basis from a source other than one of their employees, representatives
and advisors, provided that such source in not in breach of any
obligations of confidentiality to the parties, or (iii) has been
independently acquired or developed by the parties without violating
any of the parties' obligations pursuant to this Agreement. Such
Confidential Information is of a highly sensitive nature, is a special,
valuable and unique asset of the business of The Company and
ConsumerNet, respectively, and its improper use would be materially
damaging to The Company and ConsumerNet, respectively. Each party shall
hold in strict confidence all data, records, and materials relating to
the Confidential Information of the other party. Unless otherwise
required by law, each party shall not, directly or indirectly, disclose
any of the confidential Information or make it available to any third
party or use it for its benefit or the benefit of any third party
except as expressly authorized in this Agreement. Each party agrees not
to make copies of any such Confidential Information, except as required
in the due course of performing services hereunder. Each party shall
not disclose the Confidential Information to any of its employees,
representatives and advisors, except those with a need to know such
Confidential Information for the purpose of performing their
obligations under this Agreement.
9. LIMITATION OF LIABILITY.
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY
INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR LOST PROFIT
DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. GENERAL.
1. The relationship created by this Agreement is that of
independent contractor. Nothing in this Agreement shall be
constructed to make either party the partner, agent, employee
or representative of the other. Neither party has authority to
make any warranties or incur any liabilities on behalf of or
binding on the other party.
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2. This Agreement shall be construed and governed by the laws
of the State of New York. Any dispute arising out of this
Agreement or the breach thereof, except for a claim for
injunctive relief, shall be submitted to arbitration pursuant
to the rules of the American Arbitration Association. Any such
arbitration shall be held in the County of New York, State of
New York. Judgment upon the award rendered by the arbitration
may be entered into any court having jurisdiction thereof.
3. Neither party shall assign this Agreement or delegate any
rights, duties or obligations hereunder to any other entity
without the prior written consent of the other party, which
consent shall not be unreasonably withheld or delayed.
4. Any notices required to be given pursuant to this Agreement
shall be in writing and shall be deemed to have been property
given when personally delivered on the day after if given by
nationally recognized overnight courier, or on the third
business day after mailing if given by registered or certified
mail, return receipt requested to the other party at the
following addresses:
If to ConsumerNet: ConsumerNet
0-00 Xxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxxxx 00000
Attention: Xxxx Chachion
With a copy to: Xxxxx, Dry & Xxxxxx
Two Stanford Plaza
000 Xxxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000-0000
Attention: Xxxx Xxxxxxx
Either party may change the address or addresses to which such notices should be
directed by giving written notice to the other party of such change.
11. This Agreement constitutes the entire understanding and agreement of
the parties with respect to its subject matter and supersedes and
replaces all prior agreements, understandings or representations,
written or oral. The provisions in Sections 7 and 8 shall survive the
termination of this Agreement. This Agreement may be amended or
modified only by a written agreement signed by both parties. If any
provision of this Agreement is held to be unenforceable, invalid or
illegal by any court of competent jurisdiction, such unenforceable,
invalid or illegal provision shall not affect the remainder of this
Agreement. This Agreement may be executed in two or more counterparts,
each of which shall be an original, and all of which shall constitute
but one Agreement. The terms and provisions of this Agreement are
binding on and shall inure to the benefit of the parties hereto and
their respective successors and their assigns. Recourse by Company
against ConsumerNet shall extend only to ConsumerNet and not to any of
ConsumerNet's employees, agents, officers, director, partners,
affiliates, and/or licensees.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective
Date.
ConsumerNet xXxxxx.xxx
By: [ILLEGIBLE] By: /s/ XXXXX X. XXXXXX
Name: [ILLEGIBLE] Name: Xxxxx X. Xxxxxx
Title: [ILLEGIBLE] Title: CEO
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