1
EXHIBIT 10.34
BETWEEN XXXX.XXX AND AVMF
This (this "Agreement") is made as of
October 21, 1999 (the "Effective Date") by and between Xxxx.xxx, Inc., a
California corporation with offices at 000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxx
Xxxxxxxxx, XX 00000 ("Xxxx.xxx") and American Veterinary Medical Foundation, an
Illinois corporation with offices at 0000 X. Xxxxxxx Xxxx, Xxxxx 000,
Xxxxxxxxxx, XX 00000 ("AVMF") (each a "party" and collectively the "parties").
BACKGROUND
Whereas, Xxxx.xxx owns and operates the Xxxx.xxx Site (as defined below)
which markets and sells pet related goods to consumers;
Whereas, AVMF promotes the health and well-being of animals through the
enhancement of veterinary medical education and science; and
Whereas, the parties wish to enter into an exclusive sponsorship on the
terms and conditions set forth herein.
In consideration of the mutual promises contained herein, the parties
hereby agree as follows:
A G R E E M E N T
1. Definitions.
"AVMF Site" means the web site owned and operated by AVMF, and currently
having a URL at xxxx://xxx.xxxx.xxx/xxxx, and any successor site thereof.
"Content" means the data, text, audio, video, graphics, photographs,
artwork and other technology and materials of either party.
"Home Page" means that Page of the web site which is designated as the
initial end user interface for the web site.
"Intellectual Property Rights" means all rights in and to trade secrets,
patents, copyrights, trademarks, know-how, as well as moral rights and similar
rights of any type under the laws of any governmental authority, domestic or
foreign, including rights in and to all applications and registrations relating
to any of the foregoing.
"Link" means a URL hidden behind a formatting option that may take the
form of a colored item
-1-
2
of text (such as a URL description), logo or image, "button" or graphic box, and
which allows a user to access Pages, web sites or other text within a Page.
"Marks" of a party means such party's trademarks, trade names, service
marks, service names, logos and other distinct brand elements that appear from
time to time in such party's properties, ventures and services worldwide,
together with any modifications to the foregoing made by such party during the
term of this Agreement.
"Page" means a document on the Internet which may be viewed in its
entirety without leaving the applicable distinct URL address.
"Partners Page" means that Page on the web site which is designated to
contain information about the strategic partners of that web site.
"Pet Retail Company" means any web site, online service, traditional
retail store or other physical or virtual entity that markets, sells, or allows
customers to purchase pet care or pet related products. Without limiting the
foregoing, the definition of Pet Retail Company includes any retailer of
consumer goods which also sells pet care products.
"Xxxx.xxx Site" means the web site owned and operated by Xxxx.xxx, and
currently having a URL at xxxx://xxx.xxxx.xxx, and any successor site thereof.
2. Xxxx.xxx's Obligations.
2.1 Video Sponsorship. The parties acknowledge that Xxxx.xxx has
sponsored the AVMF Vet Link Video pursuant to a separate sponsorship agreement
dated October __, 1999.
2.2 [*] Campaign. Xxxx.xxx agrees to develop and implement an [*] (or
similar name) fund raising campaign on the Xxxx.xxx Site in which the [*]
process would provide [*] which stated [*] here to [*] for a [*] or similar
wording. Such campaign shall be made available on the [*] to be determined by
Xxxx.xxx. In the event that such campaign does not generate a minimum of [*]
("Guaranteed Contributions") of revenue to AVMF per year for the term of this
Agreement, Xxxx.xxx will compensate AVMF for the difference pursuant to Section
4.
2.3 E-mail Newsletter. Xxxx.xxx will mention its sponsorship of AVMF [*]
in its biweekly email newsletter to its customer base who have "opted-in" to
receive such newsletters, the content of which shall be mutually agreed by the
parties.
2.4 Public Relations and Press Tour. Xxxx.xxx shall include AVMF in its
public relations campaign such as, for example, by including AVMF in all press
releases and participation in at least one
* CERTAIN CONFIDENTIAL INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
-2-
3
press tour per year.
2.5 Partners Page. Xxxx.xxx shall provide a Link on its Partners Page
which shall link to the AVMF Home Page.
2.6 Xxxx.xxx Magazine. Xxxx.xxx shall place a full-page advertisement in
[*] issues of the "Xxxx.xxx" magazine at [*] cost to AVMF. Such magazine is
currently planned to be published six (6) times in the year 2000 and expected to
have a circulation of [*] per issue.
2.7 Convention Space. Xxxx.xxx shall provide AVMF booth space at the
Xxxx.xxx Dog Day Afternoon events at no cost to AVMF, which includes a national
tour of [*] cities in the year 2000.
2.8 TYDTWD. Xxxx.xxx shall provide AVMF the opportunity to participate
in Xxxx.xxx's "Take Your Dog to Work Day" annual event sponsored by Xxxx.xxx.
3. AVMF's Obligations.
3.1 Scholarship Support. AVMF agrees to administer a Veterinary
Scholarship Program in which a portion of the payments made under this Agreement
shall be used for the financial support of student scholarships. AVMF shall
allocate [*] per year to be distributed as [*] scholarships to each veterinary
school in the United States and Canada. AVMF shall acknowledge Xxxx.xxx as the
provider of such scholarship monies.
3.2 Human-Animal Bonding Research. AVMF agrees to allocate [*] per year
from the payments made under this Agreement for the support of human-animal
bonding research programs, the selection of which shall be made by both parties.
3.3 [*] Program. Subject to [*] and compliance with the [*], AVMF agrees
to consider [*].
3.4 Public Relations. AVMF agrees to include Xxxx.xxx in AVMF's public
relations efforts on at least an equal level as other similar sponsors.
3.5 Other Promotions. AVMF agrees to send a letter of introduction to
all veterinarians and/or clinics receiving the Client Link Video announcing
Xxxx.xxx as a new AVMF sponsor. AVMF further agrees to provide Xxxx.xxx a list
of all AVMF contacts, including without limitation members and individuals who
have donated money to AVMF and who have expressed no objections to AVMF so that
Xxxx.xxx may communicate with them. Any such communications shall be subject to
the review and reasonable approval by AVMF.
* CERTAIN CONFIDENTIAL INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
-3-
4
3.6 [*]. AVMF agrees to help Xxxx.xxx [*] months of the Effective Date a
[*] to the [*].
4. Payments and Schedule. Xxxx.xxx shall pay AVMF a total of [*] for the
term of this Agreement less [*] for sponsorship of the Vet Link Video in
accordance with the following schedule: beginning on the Effective Date and for
each ninety (90) days ("Quarter") thereafter, Xxxx.xxx will pay AVMF [*] within
thirty (30) days after the end of such Quarter. At the fourth Quarter prior to
each anniversary of this Agreement, Xxxx.xxx shall adjust the fourth Quarter
payment to AVMF to compensate for any amount collected from the "Add-a-buck"
campaign exceeding the Guaranteed Contributions.
5. Exclusivity. Xxxx.xxx shall be the exclusive sponsor and Pet Retail
Company associated with the AVMF in that AVMF shall not promote any Pet Retail
Company other than Xxxx.xxx in any advertising, promotional or public relations
materials in any form or medium, including without limitation the placement of
banner advertisements, sponsorships, promotions or editorial content of any Pet
Retail Company other than Xxxx.xxx on the AVMF Site during the term of this
Agreement. Both parties acknowledge that AVMF is a non-profit foundation and can
accept contributions from other Pet Retail Companies provided that such Pet
Retail Companies do not receive any online or offline promotional acknowledgment
other than as a line listing along with other donors.
6. Term and Termination.
6.1 Term. This Agreement will become effective as of the Effective Date
and, unless sooner terminated as otherwise provided herein, or as otherwise
mutually agreed, shall remain effective for a period of [*] from the Effective
Date. This Agreement may be renewed by mutual consent of the parties.
6.2 Termination for Insolvency and Cause. This Agreement may be
terminated at any time by a party, effective immediately upon notice, if the
other party: (a) undergoes an insolvency proceeding that is not dismissed within
thirty (30) days; (b) files a petition in bankruptcy, (c) makes an assignment
for the benefit of its creditors, or (d) breaches any of its material
responsibilities or obligations under this Agreement, which breach is not cured
within thirty (30) days from receipt of written notice of such breach.
6.3 Effect of Termination. Upon expiration or termination of this
Agreement: (a) each party shall return or, at the disclosing party's request
destroy, the Confidential Information of the other party, (b) all licenses
granted herein shall terminate and (c) Sections 6.3, 8, 9, 10 and 11 shall
survive.
* CERTAIN CONFIDENTIAL INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
-4-
5
7. Licenses.
7.1 Grant of License by AVMF. Subject to the terms and conditions of
this Agreement, AVMF hereby grant Xxxx.xxx an exclusive royalty-free, worldwide
license to use, reproduce, publicly display, publicly perform, distribute and
transmit the AVMF Marks and AVMF Content on the Xxxx.xxx Site and in other
promotional materials solely to the extent necessary to perform its obligations
under this Agreement and limited to the exclusivity provisions set forth in
Section 5, and provided that any such use will comply with any brand usage
guidelines communicated by AVMF to Xxxx.xxx in writing.
7.2 Grant of License by Xxxx.xxx. Subject to the terms and conditions of
this Agreement, Xxxx.xxx hereby grants AVMF a non-exclusive, royalty-free,
worldwide license to use, reproduce, publicly display, publicly perform,
distribute and transmit the Xxxx.xxx Marks and Xxxx.xxx Content in promotional
materials solely to the extent necessary to perform its obligations under this
Agreement, and provided that any such use will comply with any brand usage
guidelines communicated by Xxxx.xxx to AVMF in writing.
7.3 Reserved Rights. Without limiting the foregoing, each party reserves
all rights other than those expressly granted in this Agreement, and no licenses
are granted except as expressly set forth herein.
8. Proprietary Information.
8.1 Confidentiality. AVMF and Xxxx.xxx each agree to retain in
confidence the non-public terms in this Agreement and all other non-public
information and know-how disclosed pursuant to this Agreement which is either
designated as proprietary and/or confidential, or by the nature of the
circumstances surrounding disclosure, should reasonably be understood to be
confidential ("Confidential Information"). Each party agrees to: (a) preserve
and protect the confidentiality of the other party's Confidential Information;
(b) refrain from using the other party's Confidential Information except as
contemplated herein; and (c) not disclose such Confidential Information to any
third party except to employees as is reasonably required under this Agreement
(and only subject to binding use and disclosure restrictions at least as
protective as those set forth herein executed in writing by such employees).
Notwithstanding the foregoing, either party may disclose Confidential
Information of the other party which is: (i) already publicly known; (ii)
discovered or created by the receiving party without reference to the
Confidential Information of the disclosing party, as shown in records of
receiving party; (iii) otherwise known to the receiving party through no
wrongful conduct of the receiving party, or (iv) required to be disclosed by law
or court order. Moreover, either party hereto may disclose any Confidential
Information hereunder to such party's agents, attorneys and other
representatives or any court of competent jurisdiction or any other party
empowered hereunder as reasonably required to resolve any dispute between the
parties hereto.
-5-
6
8.2 Ownership.
(a) By Xxxx.xxx. As between Xxxx.xxx and AVMF, Xxxx.xxx will have
and retain full and exclusive right, title and ownership interest in and to the
Xxxx.xxx Marks and Xxxx.xxx Content, together with any Intellectual Property
Rights thereto.
(b) By AVMF. As between AVMF and Xxxx.xxx, AVMF will have and
retain full and exclusive right, title and ownership interest in and to the AVMF
Marks and AVMF Content, together with any Intellectual Property Rights thereto.
9. Representation and Warranties.
9.1 By Each Party. Each party represents and warrants to the other that:
(a) such party has the full right, power and authority to enter into this
Agreement and to perform the acts required of it hereunder; (b) the execution of
this Agreement by such party, and the performance by such party of its
obligations and duties hereunder, do not and will not violate any agreement to
which such party is a party or by which it is otherwise bound; and (c) when
executed and delivered by such party, this Agreement will constitute the legal,
valid and binding obligation of such party, enforceable against such party in
accordance with its terms.
9.2 No Additional Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT, NEITHER PARTY MAKES, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS,
ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE ACTIVITIES
AND SERVICES CONTEMPLATED BY THIS AGREEMENT, INCLUDING ANY IMPLIED WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT AND ANY
IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
10. Indemnification.
10.1 Indemnification by Xxxx.xxx. Xxxx.xxx agrees, at its own expense,
to defend or at its option to settle any claim or action brought against AVMF
arising out of or relating to a claim that: (a) use of the Xxxx.xxx Marks or the
Xxxx.xxx Content in accordance with the terms of this Agreement infringes a
third party copyright or trademark, (b) any Content on the Xxxx.xxx Site
infringes the Intellectual Property Rights of a third party, is obscene or
defamatory, violates any law or regulation, or breaches the rights of any person
or entity, including, without limitation, rights of publicity, privacy or
personality, and/or (c) results from a breach or alleged breach by Xxxx.xxx of
any representation or warranty contained in Section 9.1; and Xxxx.xxx will
indemnify AVMF against any and all losses, damages, suits, judgments, costs and
expenses (including litigation costs and reasonable attorneys' fees) arising
under any such claim or action; provided that AVMF provides Xxxx.xxx with: (i)
prompt written notice of such claim or action, (ii) sole control and authority
over the defense or settlement of such claim
-6-
7
or action (provided that Xxxx.xxx shall not enter into any settlement which
materially affects AVMF's rights without AVMF's prior written consent), and
(iii) proper and full information and reasonable assistance to defend and/or
settle any such claim or action.
10.2 Indemnification by AVMF. AVMF agrees, at its own expense, to defend
or at its option to settle any claim or action brought against Xxxx.xxx arising
out of or relating to a claim that: (a) use of the AVMF Marks or AVMF Content in
accordance with the terms of this Agreement infringes a third party copyright or
trademark, (b) any Content on the AVMF Site infringes the Intellectual Property
Rights of a third party, is obscene or defamatory, violates any law or
regulation, or breaches the rights of any person or entity, including, without
limitation, rights of publicity, privacy or personality, and/or (c) results from
a breach or alleged breach by AVMF of any representation or warranty contained
in Sections 9.1; and AVMF will indemnify Xxxx.xxx against any and all losses,
damages, suits, judgments, costs and expenses (including litigation costs and
reasonable attorneys' fees) arising under any such claim or action; provided
that Xxxx.xxx provides AVMF with: (i) prompt written notice of such claim or
action, (ii) sole control and authority over the defense or settlement of such
claim or action (provided that AVMF shall not enter into any settlement which
materially affects Xxxx.xxx's rights without Xxxx.xxx's prior written consent),
and (iii) proper and full information and reasonable assistance to defend and/or
settle any such claim or action.
11. Limitation of Liability. EXCEPT FOR LIABILITY ARISING UNDER SECTION 10,
UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR
INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF SUCH
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE
THEORY OF LIABILITY), ARISING FROM ANY PROVISION OF THIS AGREEMENT, SUCH AS, BUT
NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. THESE
LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY
REMEDY.
12. Miscellaneous.
12.1 Arbitration. Any dispute, claim or controversy of any kind arising
in connection with, or relating to, this Agreement, except for a dispute, claim
or controversy arising under Section 8, shall be resolved exclusively by binding
arbitration in accordance with the Commercial Arbitration Rules of the American
Arbitration Association then in effect, by three (3) arbitrators appointed in
accordance with said rules. Judgment on the award rendered by the arbitrators
may be entered into any court of competent jurisdiction.
12.2 Notices. Any notice required or permitted by this Agreement shall
be in writing and shall be deemed sufficient upon receipt, when delivered
personally or by courier, overnight delivery service or confirmed facsimile, or
forty-eight (48) hours after being deposited in the regular mail as certified or
registered mail (airmail if sent internationally) with postage prepaid, if such
notice is addressed to the
-7-
8
party to be notified at such party's address or facsimile number as set forth
below, or as subsequently modified by written notice. Either party may change
its address for notice purposes hereof on written notice to the other party in
accordance with this Section.
---------------------------------------------------------------------------
To Xxxx.xxx To AVMF
---------------------------------------------------------------------------
Xxxx.xxx, Inc. American Veterinary Medical Foundation
000 Xxxxxxx Xxxxxx, Xxxxx 000 0000 X. Xxxxxxx Xxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxxxxxxx Attention: Executive Director and
Chairman
---------------------------------------------------------------------------
Phone: 000.000.0000 Tel: 000.000.0000
---------------------------------------------------------------------------
Fax: 000.000.0000 Fax: 000.000.0000
---------------------------------------------------------------------------
12.3 Costs and Expenses. Except as express provided in this Agreement
elsewhere, each party will be responsible for all costs and expenses incurred by
such party in performing its obligations under this Agreement.
12.4 No Joint Venture or Agency. Nothing in this Agreement shall
constitute or create a joint venture, partnership, or any other similar
arrangement between Xxxx.xxx and AVMF. Neither party is authorized to act as
agent or bind the other party except as expressly stated in this Agreement.
12.5 Assignment. Neither party may transfer or assign any rights or
delegate any obligations hereunder, in whole or in part, whether voluntarily or
by operation of law, without the prior written consent of the other party except
to an acquirer of all or substantially all of that party's business or assets.
Any purported transfer, assignment or delegation in violation of the foregoing
will be null and void and of no force or effect.
12.6 Headings. Sections, titles or captions in no way define, limit,
extend or describe the scope of this Agreement nor the intent of any of its
provisions.
12.7 Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining portions hereof or affecting the validity or enforceability of such
provision in any other jurisdiction.
12.8 Entire Agreement. This Agreement together with any Exhibits
contains the entire agreement of the parties with respect to the subject matter
hereof, and supersedes all prior and/or contemporaneous agreements or
understandings, written or oral, between the parties with respect to the subject
matter hereof.
12.9 Governing Law. This Agreement will be governed by and interpreted
under the laws of the State of Illinois, without giving effect to applicable
conflicts of law principles.
12.10 Amendment. This Agreement may not be amended or modified by the
parties in any
-8-
9
manner, except by an instrument in writing signed on behalf of each of the
parties to which such amendment or modification applies by a duly authorized
officer or representative.
12.11 Waiver. Any of the provisions of this Agreement may be waived by
the party entitled to the benefit thereof. Neither party will be deemed, by any
act or omission, to have waived any of its rights or remedies hereunder unless
such waiver is in writing and signed by the waiving party, and then only to the
extent specifically set forth in such writing. A waiver with reference to one
event will not be construed as continuing or as a bar to or waiver of any right
or remedy as to a subsequent event.
12.12 Counterparts. This Agreement may be executed in any number of
counterparts with the same effect as if both parties hereto had signed the same
document. All counterparts will be construed together and will constitute one
agreement.
[SIGNATURE PAGE TO FOLLOW]
-9-
10
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective duly authorized officers or representatives as of
the Effective Date.
XXXX.XXX, INC.
By: /s/ Xxxxx Xxxxxxxxxx
----------------------------------------
Name: Xxxxx Xxxxxxxxxx
--------------------------------------
Title: CEO
-------------------------------------
Date: 1/5/00
--------------------------------------
AMERICAN VETERINARY MEDICAL FOUNDATION
By: /s/ X. X. Xxxxxxxxx
----------------------------------------
Name: X. X. Xxxxxxxxx
--------------------------------------
Title: Board Chair
-------------------------------------
Date: 12-22-99
--------------------------------------
-10-
