EXHIBIT 10.12
24/7 MEDIA, INC.
E-MAIL NEWSLETTER MANAGEMENT AGREEMENT
WHEREAS, the undersigned (hereinafter the "List Owner") is the operator
and owner of opt-in email databases and opt-in newsletter(s) (the "Lists")
specified on the signature pages hereto;
WHEREAS, 24/7 Media, Inc. , a Delaware corporation with an address at
0000 Xxxxxxxx, 00xx xxxxx, Xxx Xxxx, XX 00000, and 24/7 Mail, a division of 24/7
Media, Inc., ("24/7 Mail"), (collectively, "24/7 Media") operate a network of
email lists and newsletters (the "24/7 Mail Network") for which it solicits
advertisers, advertising agencies, buying services or others ("Advertisers"),
regarding the placement of advertising banners, text links, buttons, jump pages
and similar devices, as well as all elements of sponsorship or promotion
("Advertising") for display in opt-in email messages and newsletters distributed
to the Lists reasonably suitable for advertising;
WHEREAS, List Owner and 24/7 Media wish to include the Lists in the
24/7 Mail Network;
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants
and agreements contained herein and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, it is agreed as
follows:
1. TERM. The initial term ("Initial Term") of the Agreement shall be one
year, beginning on the Effective Date (as defined on the signature page
hereto).
2. RENEWAL/TERMINATION. Following the Initial Term, the Agreement may be
renewed for subsequent terms of one year each. As used herein, "Term"
shall mean the Initial Term and any renewal term. Renewal shall be
evaluated thirty (30), days prior to the end of the then current Term.
Notwithstanding the foregoing, either party may terminate this
Agreement, for any reason, 180 days after the Effective Date.
3. OBLIGATIONS OF 24/7 MAIL. In furtherance of the foregoing, 24/7 Media
covenants and agrees:
A. to utilize best efforts to sell Advertising on the Lists,
(including sales of the Lists as a single list, through
multi-list packages and through the 24/7 Mail Network, at such
prices as 24/7 Mail shall deem appropriate);
B. to provide the List Owner with notice, via fax, phone or
e-mail, of new Advertising that has been solicited by 24/7
Mail to be offered to the Lists, and to honor any decision by
List Owner to decline any Advertising, providing however that
Advertising will not be unreasonably withheld;
C. to deliver to the List Owner a monthly statement showing
revenues earned by List Owner during the calendar month and
any sum(s) due the List Owner on account thereof pursuant to
Section 4 hereof; and
D. to maintain suitable and qualified personnel in
administrative, sales and technical positions necessary for
24/7 Media to perform effectively the terms of this Agreement;
E. to advertise the Lists in industry trades, publications and
through email and direct mail.
F. to manage the opt-out and unsubscribe processes with respect
to the Lists by providing the appropriate opt-out language to
subscribers and a URL address in email messages where
subscribers can opt-out of the Lists;
G. to use its best efforts to: (i) manage the placement of
Advertising sold by 24/7 Media in the Lists; (ii) distribute
email messages to end-users within 24 hours from the sale of
Advertising to the Lists; (iii) track and report to 24/7 Media
the delivery and click-through rates, for each URL or link, of
each campaign within 72 hours from the distribution of such
campaign.
4. OBLIGATIONS OF LIST OWNER. The List Owner covenants and agrees:
A. to use its best efforts to maintain the collection and
management of the Lists in a manner consistent with the
initial intent of the Lists;
B. staff an account representative to maintain the relationship
with 24/7 Media. This person will be responsible for all
communication between 24/7 Media and the Company for all
campaigns under consideration.
C. to provide at the point of user registration the option of
accepting HTML or plain text e-mail;
D. to maintain and post at the point of user registration a
Direct Marketing Association (DMA) or other widely accepted
industry compliant privacy policy (i.e., TRUSTe or Better
Business Bureau) and to adhere to a widely-accepted industry
practice to manage the consumers right to opt-out of the
Lists;
E. to notify 24/7 Media within one business day from the time of
notice when any new Advertising given by 24/7 Media to the
List Owner, of the List Owner's rejection of any new
Advertising will be considered acceptance of the campaign and
will be applied to the guarantee regardless of the Company's
decision to prevent the Advertising after the 24 hour approval
period.
F. to furnish 24/7 Media with all subscribership, viewership,
inventory, and usage reports, reviews and audience studies,
deliveries, census requirements, and any other information, on
a monthly basis, regarding the Lists as is reasonably
available to the List Owner and appropriate for use by 24/7
Media for the sale of Advertising; and
G. not to engage, contract with, license or permit any person,
firm or entity to represent, market or sell Advertising on the
Lists. Notwithstanding the foregoing, employees of the List
Owner may sell Advertising to the Lists to the Advertisers
identified in Appendix A. Employees of the List Owner shall
direct all other List inquires to 24/7 Media. ,
5. PAYMENTS.
A. Advertisers shall be directed to pay to 24/7 Media all cash
and other consideration generated from the sale of Advertising
by 24/7 Media during the term of this Agreement and for a
period of six months following the termination of this
Agreement.
B. 24/7 Media shall pay List Owner 80%of Net Revenue. Net Revenue
shall be defined as gross revenue collected minus broker
commissions paid by 24.7 Media. 24/7 Media will, at its sole
discretion, determine the price of Advertising to the Lists.
C. In the event any Advertiser remits any payment for Advertising
sold by 24/7 Media directly to the List Owner rather than to
24/7 Media, the List Owner agrees to make prompt full payment
to 24/7 Media of any and all such payments.
D. List Owner will be obligated to compensate 24/7 Media after
the expiration of this Agreement for any business contracted
by 24/7 Media prior to the termination or expiration of the
Term of this Agreement.
6. INTELLECTUAL PROPERTY. All hardware, software, programs, codes, trade
names, technology, intellectual property, licenses, patents,
trademarks, copyrights, trade secrets, know-how, and processes
(collectively, the "24/7 Media Technology") used by 24/7 Media Mail
under this Agreement shall remain the sole property of 24/7 Media Mail.
List Owner shall have no rights, title or interest in the 24/7 Media
Technology. All hardware, software, programs, codes, trade names,
technology, intellectual property, licenses, patents, trademarks,
copyrights, trade secrets, know-how, and processes (collectively, the
"List Owner Technology") used by List Owner under this Agreement shall
remain the sole property of List Owner. 24/7 Media shall have no
rights, title or interest in the List Owner Technology. Upon the
expiration or termination of this Agreement, each party shall promptly
return all information, documents, manuals and other materials
belonging to the other party except as otherwise provided in this
Agreement.
7. CONFIDENTIALITY. 24/7 Media and List Owner covenant to each other that
neither party shall disclose to any third party (other than its
employees and directors, in their capacity as such, and the employees
and directors of any affiliate on a need to know basis so long as they
are bound by the terms of this Agreement) any information regarding the
terms and provisions of this Agreement or any non-public confidential
information which has been identified as such by the other Party hereto
except (i) to the extent necessary to comply with any law or valid
order of a court of competent jurisdiction (or any regulatory or
administrative tribunal), in which event the party so complying shall
so notify the others as promptly as practicable (and, if possible,
prior to making any disclosure) and shall seek confidential treatment
of such information, if available; (ii) as part of its normal reporting
or review procedure to its auditors or its attorneys, as the case may
be, so long as they are notified of the provisions of this Agreement;
(iii) in order to enforce its rights pursuant to this Agreement; (iv)
in connection with any filing with any governmental body or as
otherwise required by law, including the federal securities laws and
any applicable rules and regulations of any stock exchange or quotation
system; and (v) in a confidential disclosure made in connection with a
contemplated financing, merger, consolidation or sale of capital stock
of 24/7 Media or the List Owner . Information which is or should be
reasonably understood to be confidential or proprietary includes, but
is not limited to, information about the 24/7 Mail Network, sales, cost
and other unpublished financial information, product and business
plans, projections, marketing data, and sponsors but shall not include
information (a) already lawfully known to or independently developed by
a party, (b) disclosed in published materials, (c) generally known to
the public, (d) lawfully obtained from any third party or (e) required
to be disclosed by law.
8. CONTENT OF NEWSLETTER. List Owner covenants and agrees not to include
or provide via the Newsletter or the Newsletter's Pages any material
that is or may be considered: (i) libelous, pornographic, obscene, or
defamatory under any federal or state law; (ii) an infringement of any
third party's intellectual property rights (including copyright,
patent, trademark, trade secret or other proprietary rights); or (iii)
an infringement on any third party's rights of publicity or privacy.
List Owner further covenants and agrees, with respect to the operation
of its Newsletter and its Pages, to comply with all laws, statutes,
ordinances, and regulations.
9. INDEMNICATION. List Owner shall indemnify and hold harmless 24/7 Media,
its advertisers and other suppliers and any related third parties,
against and in respect of any and all third party
claims, suits, actions, proceedings (formal and informal),
investigations, judgments, deficiencies, damages, settlements,
liabilities, and legal and other expenses (including reasonable legal
fees and expenses of attorneys chosen by 24/7 Media) as and when
incurred, arising out of or based upon any act or omission or alleged
act or alleged omission by List Owner in connection with the acceptance
of, or the performance or non-performance by List Owner of, any of its
duties under this Agreement or arising from the breach by List Owner of
its warranties, representations or covenants contained in this
Agreement. 24/7 Media shall indemnify and hold harmless the List Owner,
against and in respect of any and all third party claims, suits,
actions, proceedings (formal and informal), investigations, judgments,
deficiencies, damages, settlements, liabilities, and legal and other
expenses (including reasonable legal fees and expenses of attorneys
chosen by List Owner) as and when incurred, arising out of or based
upon any act or omission or alleged act or alleged omission by 24/7
Media in connection with the acceptance of, or the performance or
non-performance by 24/7 Media of, any of its duties under this
Agreement or arising from the breach by 24/7 Media of its warranties,
representations or covenants contained in this Agreement.
10. NO POACHING; List Owner agrees that, during the Term and for a period
of one year from the end of the Term, neither it nor its affiliates
will solicit or recruit the services of any 24/7 Media employees, or
hire any such employees. List Owner agrees that during the term of this
agreement and for 90 days thereafter neither it nor is affiliates or
agents will solicit advertising from their clients who have placed
advertising through 24/7 Media.
11. NO WAIVER; This Agreement shall not be waived, modified, assigned or
transferred except by a written consent to that effect signed by List
Owner and 24/7 Media, provided however, that 24/7 Media may transfer or
assign this Agreement without the consent of List Owner in the event of
a merger of 24/7 Media with, or a sale of all or substantially all of
its assets, to a third party. List Owner agrees that if it assigns or
transfers this Agreement, it shall cause such successor, assignee, or
transferee to assume all of the List Owner 's obligations hereunder.
Any assignment, transfer, or assumption shall not relieve the List
Owner of liability hereunder.
12. GOVERNING LAW; This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to
contracts made and performed therein, without regard to principles of
conflicts of laws.
13. NOTICES; All notices required or permitted to be given hereunder shall
be in writing and either hand-delivered, telecopied, mailed by
certified first class mail, postage prepaid, or sent via electronic
mail to the other party or parties hereto at the address(es) set forth
below. A notice shall be deemed given when delivered personally, when
the telecopied notice is transmitted by the sender, three business days
after mailing by certified first class mail, or on the delivery date if
delivered by electronic mail.
14. ENTIRE AGREEMENT; This Agreement constitutes the entire agreement and
supersedes all prior agreements of the Parties with respect to the
transactions set forth herein and, except as otherwise expressly
provided herein, is not intended to confer upon any other person any
rights or remedies hereunder.
15. COUNTERPARTS; This Agreement may be executed in counterparts, each of
which shall be deemed an original and all of which together shall
constitute one and the same document.
16. FORCE MAJEURE; Neither party shall be held liable or responsible to the
other party nor be deemed to have defaulted under or breached this
Agreement for failure or delay in fulfilling or performing any term of
this Agreement when such failure or delay is caused by or results from
causes beyond the reasonable control of the affected party, including
but not limited to fire, floods, failure of communications systems or
networks, embargoes, war, acts of war (whether war is declared or not),
insurrections, riots, civil commotion, strikes, lockouts or other labor
disturbances, acts of God or acts, omissions or delays in acting by any
governmental authority or the other party; provided, however, that the
party so affected shall use reasonable commercial efforts to avoid or
remove such causes of nonperformance, and shall continue performance
hereunder with reasonable dispatch whenever such causes are removed.
Either party shall provide the other party with prompt written notice
of any delay or failure to perform that occurs by reason of force
majeure. The parties shall mutually seek a resolution of the delay or
the failure to perform as noted above.
17. SEVERABILITY; Should one or more provisions of this Agreement be or
become invalid, the parties hereto - shall substitute, by mutual
consent, valid provisions for such invalid provisions which valid
provisions in their economic effect are sufficiently similar to the
invalid provisions that it can be reasonably assumed that the parties
would have entered into this Agreement with such valid provisions. In
case such valid provisions cannot be agreed upon, the invalidity of one
or several provisions of this Agreement shall not affect the validity
of this Agreement as a whole, unless the invalid provisions are of such
essential importance to this Agreement that it is to be reasonably
assumed that the parties would not have entered into this Agreement
without the invalid provisions.
18. DISPUTE RESOLUTION; Any controversy or claim arising out of or relating
to the Agreement, or the breach thereof, shall be settled exclusively
by arbitration. Such arbitration shall be conducted before a single
arbitrator in accordance with the Commercial Arbitration Rules of the
American Arbitration Association then in effect. If arbitration is
commenced by 24/7 Media, it shall take place in the city in the
continental United States in which the principal U.S.A. corporate
offices of List Owner are located. If List Owner has no corporate
offices in the U.S.A. or if arbitration is commenced by List Owner,
then arbitration shall take place in New York, New York. Judgment may
be entered on the arbitrator's award in any court having jurisdiction,
and the parties irrevocably consent to the jurisdiction of such courts
for that purpose. The parties waive personal service in connection with
any such arbitration; any process or other papers under this provision
may be served outside the home state of List Owner or New York by
registered mail, return receipt requested, or by personal service,
provided a reasonable time for appearance or response is allowed. All
decisions of the arbitrator shall be final and binding on the parties.
The parties shall equally divide all costs of the American
Arbitration Association and the arbitrator. Each party shall bear its
own legal fees in any dispute. The arbitrator may grant injunctive or
other relief.
19. INDEPENDENT CONTRACTORS; 24/7 Media and List Owner shall each act as
independent contractors. Neither party shall exercise control over the
activities and operations of the other party. 24/7 Media and List Owner
shall each conduct all of its business in its own name and as it deems
fit, provided it is not in derogation of the other's interests. Neither
party shall engage in any conduct inconsistent with its status as an
independent contractor, have authority to bind the other with respect
to any agreement or other commitment with any third party, nor enter
into any commitment on behalf of the other, except as expressly
provided for by this Agreement.
[END OF TEXT]
[SIGNATURE PAGE TO E-MAIL NEWSLETTER AFFILIATION AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement this
___ day of ____________________, 1999 (the "Effective Date").
24/7 MEDIA, INC.
By: [ILLEGIBLE]
----------------------------------------
Name: [ILLEGIBLE]
----------------------------------------
Title: [ILLEGIBLE]
----------------------------------------
E-mail address: [ILLEGIBLE]
----------------------------------------
CLIENT:
Name of List Owner: eDiets
Name of Newsletter:
----------------------------------------
Address: 0000 Xxxxxxxxx Xxxxxxxxx
Xxxxxxx: Xxxxxxxxx Xxxxx, XX 00000
By: /s/ XXXXX X. XXXXXX
----------------------------------------
Name: Xxxxx Xxxxxx
Title: CEO
E-mail address: xxxxxxxx@xxxxxx.xxx
