EXHIBIT 10.4
CO-BRANDING AGREEMENT
THIS CO-BRANDING AGREEMENT (the "Agreement") is made as of May 22, 2000
(the "Effective Date"), by and between XXXXX.XXX NETWORKS, INC., a Delaware
corporation having a place of business at 0000 Xxxxxxx Xxxxx Xxxxx 000, Xxx
Xxxxx, XX 00000 ("Xxxxx.xxx"), and XXXXXX.XXX, INC., a Delaware corporation,
having its principal place of business at 0000 Xxxx Xxxxxxxxx Xxxxxxxxx, Xxxxx
0, Xxxxxxxxx Xxxxx, Xxxxxxx 00000 ("eDiets").
WHEREAS, eDiets maintains a site on the Internet, currently located at
xxxx://xxx.xXxxxx.xxx (the "eDiets Site"), that provides personalized diet and
counseling on-line;
WHEREAS, Xxxxx.xxx maintains sites on the Internet, currently located
at xxxx://xxx.xxxxx.xxx (the "Xxxxx.xxx Sites"), that provides an on-line portal
for women, blending content, community, commerce and services;
WHEREAS, eDiets and Xxxxx.xxx wish to establish and maintain a custom,
category-exclusive, co-branded center containing repackaged content from the
eDiets Site, including a free personal diet profile, which will be a part of the
Xxxxx.xxx Sites, in order to promote the eDiets brand and drive traffic to the
eDiets Site.
NOW THEREFORE, in consideration of the mutual covenants,
representations and warranties set forth herein, the parties hereby agree as
follows:
1. THE DIET CENTER.
1.1 Xxxxx.xxx will name an area, in which eDiets content will be
published (such area, the "Diet Center"). Links (presented as Diet Center logos)
to the Diet Center will be located on three Xxxxx.xxx channels (the Fitness
Channel xxx.xxxxx.xxx/xxxxxxx; the Health Channel xxx.xxxxx.xxx/xxxxxx; and the
Food Channel xxx.xxxxx.xxx/xxxx) and two subchannels within such channels to be
determined in accordance with Exhibit B hereto. The first page of the Diet
Center (the "Gateway Page") will have the look and feel of the Xxxxx.xxx Sites
as specified in Exhibit A hereto. The Diet Center shall be branded with an icon
that includes the eDiets logo. There will be no Xxxxx.xxx or eDiets registration
required to enter and use the Gateway Page of the Diet Center. Xxxxx.xxx and
eDiets will mutually agree upon the content and logo of the Gateway Page,
including the display, appearance and placement of the Diet Center's logo, in
accordance with the terms of this Agreement, including the specifications set
forth on Exhibit A hereto, prior to the launch date of the Diet Center (the
"Launch Date"). eDiets and Xxxxx.xxx shall work together in good faith in order
to implement such design and development and the continued enhancement of the
Diet Center.
1.2 Xxxxx.xxx shall store and maintain the Gateway Page on, and serve
the Gateway Page from, server(s) located on Xxxxx.xxx's premises or the premises
of Xxxxx.xxx's third party web host. eDiets shall store and maintain the Diet
Center beneath the Gateway Page, and serve the Diet Center beneath the Gateway
Page from, server(s) located on eDiets' premises or the premises of eDiets'
third party web host. Effective one week from the
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Launch Date, eDiets shall include a back button to the Xxxxx.xxx Site on all
pages of the Diet Center beneath the Gateway Page. If at any time during the
Term of this Agreement, eDiets reasonably believes that the inclusion of such
back buttons has a material negative effect upon the rate at which users of the
Diet Center register to become members of eDiets or convert into registered
participants of the services offered by eDiets on the Diet Center (the "Negative
Effect"), eDiets may conduct a one (1) month test of the effect of such back
buttons which may include the exclusion of the back button. If such test
verifies the Negative Effect of the back button(s) to the Xxxxx.xxx Site, eDiets
may remove any such back buttons.
1.3 Except as set forth in Section 1.2, eDiets will have sole
responsibility for providing and maintaining at its own expense the Diet Center
beneath the Gateway Page. eDiets and Xxxxx.xxx will work together regarding the
on-going design and maintenance of the Diet Center.
1.4 Each party shall bear its own expenses related to its
responsibilities under this Section 1.
2. EDIETS OBLIGATIONS.
2.1 Content License. eDiets hereby grants to Xxxxx.xxx, subject to the
terms and conditions of this Agreement, a non-exclusive, nontransferable,
worldwide, royalty-free license to use, copy, reproduce and display the
editorial content and other data, branding and other identification provided by
eDiets to Xxxxx.xxx in connection with this Agreement (the "eDiets Content") on
the Xxxxx.xxx Sites: (i) for publication in the Diet Center and elsewhere
throughout the Xxxxx.xxx Sites; (ii) for the promotion of eDiets and the Diet
Center on the Xxxxx.xxx Sites and in collateral advertising materials; and (iii)
for such other purposes as are consistent with or otherwise authorized under
this Agreement.
2.2 Delivery of Content. eDiets agrees to deliver to Xxxxx.xxx, by no
later than fifteen (15) days after the Effective Date, in a format specified by
Xxxxx.xxx, the initial eDiets Content required by this Agreement, including any
photos, text, data, illustrations, graphical elements, animation or banner ads.
All eDiets Content delivered under this Agreement shall be consistent with the
specifications for such eDiets Content (including specifications as to manner
and media), and otherwise in accordance with, the terms of this Agreement,
including Exhibit D hereto, and any production schedules developed by the
parties from time to time. eDiets agrees that it will respond in a timely manner
to be agreed upon by the parties to all reasonable requests made by Xxxxx.xxx or
its agents for updated eDiets Content and refreshing of eDiets Content for the
Xxxxx.xxx Sites.
2.3 Format. eDiets will deliver the eDiets Content in such
"camera-ready" or digital format, as agreed to by the parties.
2.4 Editorial Guidelines. eDiets shall ensure that the eDiets Content
complies with Xxxxx.xxx's editorial guidelines. Xxxxx.xxx will provide eDiets
with specific editorial guidelines for eDiets Content. Xxxxx.xxx reserves the
right to reject any and all content that does not meet Xxxxx.xxx's editorial
guidelines. eDiets will then be required to edit such
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content until all content provided by eDiets complies with Xxxxx.xxx's editorial
guidelines and standards. In the event that eDiets fails, within five (5) days
after submission by Xxxxx.xxx, to provide Xxxxx.xxx with necessary revisions
thereto, such failure shall be deemed to be approval of Xxxxx.xxx's edits.
Xxxxx.xxx reserves the right, in its sole discretion, to require eDiets to
eliminate, any banner, hypertext or other link from the Xxxxx.xxx Site to any
web site containing content promoting or advertising tobacco, liquor, controlled
substances, gambling, firearms or sexually explicit, offensive or degrading
material. In addition to the foregoing and the content guidelines set forth in
Section 5.2 hereof, eDiets may not directly link from the Gateway Page to any
Xxxxx.xxx Competitive Company (as defined in Section 5.2).
2.5 Facts. eDiets shall be solely responsible for ensuring the
timeliness, accuracy, and correctness of all facts, data and information
("Facts") contained within the eDiet Content. eDiets shall indemnify, defend and
hold harmless Xxxxx.xxx, its officers, directors, employees and agents from and
against all damages, awards, costs, fees (including reasonable attorneys' fees),
and expenses that such parties may incur as a result of third party claims
arising from such third parties' reliance on Facts. Xxxxx.xxx retains the right,
but not the obligation, to independently corroborate, or have corroborated, the
timeliness, accuracy, and correctness of all Facts.
3. ADVERTISING.
3.1 Advertising and Promotion. Advertising and Promotion. Xxxxx.xxx
shall make available to eDiets and eDiets shall purchase from Xxxxx.xxx
advertising and promotional inventory in the amounts and at the rates specified
in Exhibit B hereto and in accordance with the terms specified in Exhibit D
hereto. If Xxxxx.xxx does not deliver at least 80% of the Quarterly Impression
Guarantee for Advertsing Promotions as set forth on Exhibit B (11,250,000 per
quarter; 45,000,000 per year); 80% of the Quarterly Impression Guarantee for the
Diet Center Logo as set forth on Exhibit B (3,250,000 per quarter; 13,000,000
per year); and 80% of the Quarterly Impression Guarantee for Other Campaigns as
set forth on Exhibit B (3,000,000 per quarter; 12,000,000 per year) each quarter
following the Launch Date, within sixty (60) days of the end of the applicable
quarter, Xxxxx.xxx shall deliver an amount equal to the under-delivery within
the same campaign elements, including newsletters, promotions, exclusive
sponsorships, targeted rotations, ROS, channel and sub-channel center logo
placements, or mutually agreed upon comparable elements. If Xxxxx.xxx does not
deliver the shortfall within sixty (60) days of the end of the applicable
quarter, eDiets may terminate this Agreement in its entirety immediately or
authorize Xxxxx.xxx to deliver the shortfall within an extended number of days
to be mutually agreed upon by the parties (the "Make Good Period"). Should
eDiets elect to terminate this Agreement, Xxxxx.xxx shall reimburse eDiets
within thirty (30) days of the date of such termination for all pre-paid
impressions or other promotions not delivered as of the date of termination.
Xxxxx.xxx agrees that if eDiets elects to extend the Agreement the monthly fee
due and payable during the Make Good Period will be recalculated and reduced to
reflect the changes in the revised delivery schedule.
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3.2 Xxxxx.xxx and eDiets agree that all media metrics (e.g. pageviews
and impressions) with respect to the Gateway Page of the Diet Center shall be
allocated to Xxxxx.xxx.
4. PUBLICITY. Neither party will make any public statement, press
release or other announcement relating to the terms of or existence of this
Agreement without the prior written consent of the other. Notwithstanding the
foregoing, each party hereby grants to the other the right to issue an initial
press release, the timing and wording of which will be subject to such party's
reasonable approval, regarding the relationship between Xxxxx.xxx and eDiets and
the launch of the Diet Center. This Section shall not in any way restrict either
party from complying with any law, regulation or other governmental demand or
request for information.
5. EXCLUSIVITY.
5.1 During the Term, (a) Xxxxx.xxx will not buy, sell, display,
distribute advertising from (including, but not limited to, banner ads, buttons,
badges, text links, hyperlinks or editorial mentions) or otherwise promote a
Competitive Company on any page of the Diet Center; (b) eDiets will be the
exclusive third party provider of content and interactive tools for diets and
diet counseling to Xxxxx.xxx within the Diet Center; (c) Xxxxx.xxx will not
enter into a relationship with a Competitive Company that involves any of the
following; (i) custom developed mini or micro web sites; (ii) content
integration; (iii) discounts offered only to Xxxxx.xxx members on the Member
Central page of the Xxxxx.xxx Sites; (iv) editorial endorsement (such as
"Brought to you by....") or fixed placement of 468x60 (top) and 125x365 (side)
banners within eight (8) of the Content Features selected by eDiets; and (v)
anchor sponsorship in any multi-sponsor Xxxxx.xxx promotion. Notwithstanding the
foregoing, Xxxxx.xxx shall be entitled to (aa) provide mini and micro web sites
and Xxxxx.xxx promotions and sponsorships to Xxxxx Xxxxx; (bb) sell, display, or
distribute advertisements, including banner advertisements, newsletter
placements, internet radio, commerce placements and market research, or
otherwise promote Competitive Companies on pages other than the Gateway Page of
the Diet Center. For purposes of this Agreement, "Competitive Company" means any
company that eDiets reasonably presents as, and Xxxxx.xxx reasonably agrees is,
a direct competitor to eDiets by distributing on-line content principally
relating to diets and diet counseling, including, but not limited to, Weight
Watchers, Xxxxx Xxxxx, NutriSystem, Nutrio, Asimba, DietSmart and uMagic.
During the Term, Xxxxx.xxx agrees to give eDiets the right of first refusal to
participate in all diet and diet-counseling related promotion opportunities
created or otherwise made available by Xxxxx.xxx on channels or sub-channels
created after the Effective Date of this Agreement, including sponsorships,
anchor placements and any other content integration opportunities ("Diet
Promos"). If Xxxxx.xxx proposes to create and make available Diet Promos after
the Effective Date, it shall give eDiets written notice of its intention,
describing the terms and conditions of participation in the Diet Promos. eDiets
shall have fifteen (15) days from the giving of such notice to agree to
participate in the applicable Diet Promo upon the terms and conditions specified
in the notice by giving written notice of its agreement to Xxxxx.xxx.
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5.2 During the Term, eDiets will not buy, sell, display or distribute
advertising from (including, but not limited to, banner ads, buttons, badges,
text links, hyperlinks or editorial mentions) or otherwise promote any Xxxxx.xxx
Compettive Company on any page of the eDiets Site that is within two clicks from
the Gateway Page of the Diet Center. For purposes of this Agreement, "Xxxxx.xxx
Competitive Company" means any company that Xxxxx.xxx reasonably presents as,
and eDiets reasonably agrees is, a direct competitor to Xxxxx.xxx by providing
an on-line portal for women, including, but not limited to, Oxygen Media and
iVillage,
6. PAYMENTS.
6.1 Payment Schedule. In consideration of Xxxxx.xxx's developing,
maintaining and promoting the Diet Center pursuant to this Agreement, beginning
on the tenth (10th) day after the execution of this Agreement and thereafter on
the last day of each month during the Term of this Agreement, eDiets shall pay
to Xxxxx.xxx a monthly fee in the amount set forth on Exhibit C unless adjusted
as set forth in Section 3.1. Following the Initial Term, Xxxxx.xxx shall have
the right, upon no fewer than sixty (60) days prior written notice to eDiets, to
increase the amount of the Payment Schedule; provided, that (i) Xxxxx.xxx may
not increase the Payment Schedule more than once in any period of twelve (12)
consecutive months; and (ii) such increase may not exceed twenty percent (20%)
of the then current Payment Schedule.
7. REPORTING.
7.1 Xxxxx.xxx shall make advertising reports generated by NetGravity
available to eDiets either online or in some other mutually agreed upon format.
Such reports shall contain the number of impressions and other metrics
attributable to each general category of advertising specified in Exhibit B
hereto, as well as such other information as eDiets may reasonably request, to
the extent reasonable commercial efforts and current technology permit. eDiets
agrees to accept such advertising reports provided by Xxxxx.xxx as the official
basis for measuring all services to be provided under this Agreement, provided,
however, that if the traffic data contained in such reports materially differs
(meaning a differential of 25% or more), from the data captured and reported by
eDiets, the parties agree to either (a) identify the source of and remedy the
difference or (b) equally split the difference between the traffic data reported
by each party. If a technological malfunction causes the data reported by
NetGravity to materially inflate the number of impressions provided eDiets by
Xxxxx.xxx, Xxxxx.xxx shall deliver eDiets an amount of impressions equal to the
overcount in accordance with the provisions for under-delivery set forth in
Section 3.1 hereof.
8. OWNERSHIP.
8.1 eDiets Content. Nothing in this Agreement shall effect a transfer
of ownership in the eDiets Content from eDiets to Xxxxx.xxx, and eDiets shall
retain all rights of copyright, trademark or other intellectual property rights
in such eDiets Content that it possessed prior to providing such eDiets Content
to Xxxxx.xxx, subject only to the licenses expressly granted by eDiets to
Xxxxx.xxx by this Agreement. eDiets retains all rights with respect to eDiets
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Content that are not specifically granted to Xxxxx.xxx herein. Xxxxx.xxx
acknowledges that eDiets owns all right, title and interest in and to the eDiets
Content, and Xxxxx.xxx shall not now or in the future contest the validity of
the eDiets' ownership rights in and to the eDiets Content. eDiets agrees to
periodically include mention of Xxxxx.xxx, including a link to the Xxxxx.xxx
Site if desired by eDiets, within the eDiets Newsletter (the "Mention"). eDiets
shall determine in its sole discretion the placement, frequency and timing of
such Mention, provided that eDiets submits each Mention to Xxxxx.xxx for
approval and secures such approval prior to publication or distribution of such
Mention.
8.2 Xxxxx.xxx Content. All content, including but not limited to all
photos, text, data, illustrations, graphical elements, animation and tools,
appearing on the Xxxxx.xxx Sites (with the exception of the eDiets Content) or
provided to eDiets pursuant to this Agreement by Xxxxx.xxx, including all
software, methods of operation, interfaces, specifications and documentation in
respect of the foregoing contained therein (collectively, "Xxxxx.xxx Content")
is and shall remain the sole and exclusive property of Xxxxx.xxx or its third
party licensors and eDiets acquires no right, title or interest therein or
thereto.
8.3 Data Ownership. Xxxxx.xxx routinely collects data from Xxxxx.xxx
visitors to the Xxxxx.xxx Sites. Xxxxx.xxx shall retain all ownership, right,
title and interest in and to any data provided to Xxxxx.xxx by Xxxxx.xxx users
while directly on the Xxxxx.xxx Site. eDiets shall retain all ownership, right,
title and interest in and to any data collected within the eDiets Site
including, but not limited to demographic information and email addresses
submitted to eDiets by users of the eDiets Site.
8.4 Privacy. eDiets agrees to treat all consumer data collected from
Xxxxx.xxx users on the Xxxxx.xxx Site in accordance with Xxxxx.xxx's privacy and
security policies (the "Xxxxx.xxx Data"). Xxxxx.xxx reserves the right to change
such policies in its sole discretion from time to time. In no event shall eDiets
disclose or otherwise transfer to any person or entity any Xxxxx.xxx Data that
individually or in the aggregate identifies the identity, habits or transactions
of the Xxxxx.xxx users.
8.5 Tools. To the extent either party, directly or indirectly, utilizes
any software, HTML and/or Java scripts, proprietary tools and/or methodologies
(collectively the "Tools") in performing under this Agreement, such party and
its licensors retain all right, title and interest in and to any such Tools.
9. TRADEMARK OWNERSHIP AND LICENSE.
9.1 Xxxxx.xxx Marks. Xxxxx.xxx hereby grants eDiets a non-exclusive,
non-transferable, royalty-free worldwide right and license without the right to
sublicense to use the Xxxxx.xxx Marks during the Term solely in connection with
(i) the fulfillment of eDiets' obligations under this Agreement, and (ii) in
advertising and marketing collateral related to this Agreement. eDiets
acknowledges and agrees that Xxxxx.xxx owns and otherwise has the exclusive
right to use and to license the Xxxxx.xxx Marks and that Xxxxx.xxx, in each
instance, shall have the right to review and approve or disapprove eDiets' use
of the Xxxxx.xxx Marks, such approval not to be unnecessarily withheld or
delayed. All uses of
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Xxxxx.xxx Marks by eDiets, including all goodwill arising therefrom shall inure
solely to the benefit of Xxxxx.xxx. Xxxxx.xxx retains all rights with respect to
Xxxxx.xxx Marks that are not specifically granted to eDiets herein. Xxxxx.xxx,
in its sole discretion, may withdraw specific or general permission to use the
Xxxxx.xxx Marks upon seventy-two (72) hours written notice to eDiets. Upon
expiration of such notice period, eDiets shall immediately discontinue use of
the applicable Xxxxx.xxx Marks. As used herein, "Xxxxx.xxx Marks" means all
trademarks, service marks and corporate and brand identification and indicia,
including without limitation word marks, logos and other picture marks, phrases,
jingles, composite marks, corporate, commercial and institutional images,
product designations and identifications of Xxxxx.xxx, whether registered or
not.
9.2 eDiets Marks. eDiets hereby grants Xxxxx.xxx a non-exclusive,
non-transferable, royalty-free worldwide right and license without the right to
sublicense to use the eDiets Marks during the Term solely in connection with (i)
the fulfillment of Xxxxx.xxx's obligations under this Agreement, and (ii) in
advertising and marketing collateral related to this Agreement. Xxxxx.xxx
acknowledges and agrees that eDiets owns and otherwise has the exclusive right
to use and to license the eDiets Marks and that eDiets shall have the right, in
each instance, to review and approve or disapprove Xxxxx.xxx's use of the eDiets
Marks, such approval not to be unnecessarily withheld or delayed. All uses of
eDiets Marks by Xxxxx.xxx, including all goodwill arising therefrom shall inure
solely to the benefit of eDiets. eDiets retains all rights with respect to
eDiets Marks that are not specifically granted to Xxxxx.xxx herein. eDiets, in
its sole discretion, may withdraw specific or general permission to use the
eDiets Marks upon seventy-two (72) hours written notice to Xxxxx.xxx. Upon
expiration of such notice period, Xxxxx.xxx shall immediately discontinue use of
the applicable eDiets Marks. As used herein, "eDiets Marks" means all
trademarks, service marks and corporate and brand identification and indicia,
including without limitation word marks, logos and other picture marks, phrases,
jingles, composite marks, corporate, commercial and institutional images,
product designations and identifications of eDiets, whether registered or not.
9.3 Usage. All uses by one party of the other party's Marks shall be in
accordance with such quality control standards as the licensing party may
promulgate from time to time and each party agrees to refrain from all uses of
the other party's Marks to which the other party objects. All promotional
literature and other materials prepared by a party in connection with its
promotional obligations hereunder shall bear appropriate copyright and/or
trademark notices as prescribed by the other party, if the other party's content
or branding is included therein. Each party agrees that it will not use,
register or attempt to register in any jurisdiction, or otherwise appropriate or
adopt any name, xxxx or logo that is confusingly similar to the other party's
Marks. At no time during the term of the Agreement or thereafter shall eDiets
attack, challenge or file any application with respect to any Xxxxx.xxx Xxxx. At
no time during the term of the Agreement or thereafter shall Xxxxx.xxx attack,
challenge or file any application with respect to any eDiets Xxxx.
9.4 Non-Alteration. In any identification of either party pursuant to
this Agreement, one party shall not alter or otherwise impair the branding or
other identification of the other party, nor alter or remove any copyright,
trademark or other protective notices of such other
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party. Xxxxx.xxx agrees that, except as may be reasonably necessary, it shall
not mask, frame, overlay, impair or otherwise materially alter or affect the
images, information, perception, service quality or security obtained from a
eDiets Site once the link or equivalent pathway is selected or initiated.
10. TERM AND TERMINATION.
10.1 Initial Term. This Agreement will become effective as of the
Effective Date and, unless sooner terminated pursuant to Sections 3.1 or 10.2,
shall remain effective for two (2) years from and after the Effective Date (the
"Initial Term"). This agreement shall automatically renew for additional
successive terms of twelve (12) months each at the end of the Initial Term
("Renewal Terms"), unless either party notifies the other in writing at least
sixty (60) days prior to the end of the Initial Term. As used in this agreement,
"Term" shall mean the Initial Term and the Renewal Terms, if any.
10.2 Termination for Breach. In the event of a material breach of this
Agreement by either party, the non-breaching party may terminate this Agreement
if such breach is not cured within thirty (30) days from receipt of written
notice of such breach sent to the address of the breaching party as specified
herein. Such termination shall be in addition to any and all other actions or
remedies the parties may seek at law or equity with respect to a breach of this
Agreement.
10.3 Effect of Termination. Upon the termination, expiration or earlier
termination of this Agreement in accordance with its terms (the "Termination
Date"):
(a) the rights and licenses granted by each party to the other
pursuant to this Agreement shall automatically terminate;
(b) where applicable, each party shall return to the other party,
within thirty (30) days from such Termination Date, all intellectual property,
technology or other property in its possession used in connection with this
Agreement that is proprietary to the other party;
(c) Confidential Information shall be returned in accordance with
the terms of Section 11;
(d) within sixty (60) days after such Termination Date, Xxxxx.xxx
shall remove and cease to use all eDiets Content provided or made available for
use or display on the Gateway Page pursuant to or in connection with this
Agreement;
(e) within sixty (60) days after such Termination Date, each party
shall eliminate from their respective web sites and/or respective web pages any
marks or branding related to the other party (i.e., the eDiets Marks and the
Xxxxx.xxx Marks, respectively) used in connection with this Agreement;
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(f) within sixty (60) days after such Termination Date, Xxxxx.xxx
shall purge from its servers and systems all eDiets Content;
(g) within sixty (60) days after such Termination Date, Xxxxx.xxx
shall make-good to eDiets any and all payments made to Xxxxx.xxx under this
Agreement for advertising inventory not yet delivered or run, provided that
eDiets has paid for such inventory; and
(h) within sixty (60) days after such Termination Date, eDiets
shall pay to Xxxxx.xxx any and all payment due under this Agreement for
delivered advertising and promotions inventory in accordance with Sections 3.1
and 6.1.
10.4 Survival. The provisions of Sections 4, 8, 10, 11, 12, 13, 14 and
15, as well as all defined terms, will survive any expiration or earlier
termination of this Agreement for any reason.
11. CONFIDENTIALITY.
11.1 The parties acknowledge that, in the course of performing duties
under this Agreement, each party may obtain Confidential Information from the
other party. For the purposes of this Section 11, the party disclosing
Confidential Information shall be the "Disclosing Party" and the party receiving
Confidential Information shall be the "Receiving Party." "Confidential
Information" means any and all technical and non-technical information provided
by the Disclosing Party to the Receiving Party and shall include, but not be
limited to, all information regarding (a) patent and patent applications, (b)
trade secrets, and (c) proprietary information, ideas, samples, media,
techniques, sketches, drawings, works of authorship, models, inventions,
know-how, processes, apparatuses, equipment, algorithms, software programs,
software source documents, and formulae related to the current, future, and
proposed products and services of the Company, and including, without
limitation, the Company's information concerning research, experimental work,
development, design details and specifications, engineering, financial
information, procurement requirements, purchasing, manufacturing, customer
lists, investors, employees, business and contractual relationships, business
forecasts, sales and merchandising, marketing plans and information the Company
provides regarding third parties. Confidential Information also includes
proprietary or confidential information of any third party that may disclose
such information to either party in the course of such party's business.
Confidential Information may be disclosed in writing, in other tangible form,
orally or visually.
11.2 Confidential Information of the Disclosing Party will not include
information that the Disclosing Party can demonstrate by reasonable evidence (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) is approved for
release by written authorization of the Disclosing Party, (d) the Receiving
Party knew prior to receiving such information from the Disclosing Party or (e)
is independently developed by the Receiving Party without reference to
Confidential Information of the Disclosing Party.
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11.3 By virtue of this Agreement, each party hereto may disclose to the
other any information that is Confidential Information. Such Confidential
Information shall be governed by the terms of this Section 11. Each party agrees
to use the Confidential Information of the other party solely to the extent
necessary to fulfill its obligations or exercise its rights hereunder, and not
for any other purpose.
11.4 Each party agrees (a) that it will disclose such Confidential
Information only to its employees, agents and contractors with a need to know
such Confidential Information and who have obligations of confidentiality not to
use such Confidential Information for any purpose except as expressly permitted
hereunder, (b) that it will not disclose to any third party or use any
Confidential Information disclosed to it by the other except as expressly
permitted in this Agreement, and (c) 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.
11.5 Notwithstanding the foregoing, each party may disclose
Confidential Information (a) to the extent required by a court of competent
jurisdiction or other governmental authority or otherwise as required by law,
provided that the Receiving Party uses reasonable efforts to provide the
Disclosing Party with prior notice of such obligation in order to permit the
Disclosing Party a reasonable opportunity to take legal action to prevent or
limit the scope of such disclosure, or (b) on a "need-to-know" basis under an
obligation of confidentiality to its legal counsel, accountants, banks and other
financing sources and their advisors.
11.6 Within fifteen (15) days of receipt by Receiving Party of a
written request from the Disclosing Party for the return of Confidential
Information, all Disclosing Party's Confidential Information and all copies
thereof in Receiving Party's possession or control shall be returned to
Disclosing Party or destroyed by Receiving Party at Disclosing Party's
instruction. Receiving Party shall then certify the same in writing and that no
copies have been retained by Receiving Party, its employees, agents or
contractors.
11.7 Each party acknowledges that unauthorized disclosure or use of the
Confidential Information may cause irreparable harm to the other party for which
recovery of money damages would be inadequate, and the other party shall
therefore be entitled to seek timely injunctive relief to protect its rights
under this Section 11, in addition to any and all other remedies available at
law or in equity.
11.8 The terms and conditions of this Agreement will be deemed to be
the Confidential Information of each party and will not be disclosed without the
written consent of the other party.
12. WARRANTY.
12.1 General. Each party represents and warrants to the other that: (a)
such party has the full corporate right, power, and authority to enter into this
Agreement and perform the acts required of it hereunder, (b) the execution of
this Agreement by such party, and the performance
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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 bound,
(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 and (d) such party will perform its
obligations hereunder in compliance with applicable law and regulations.
12.2 eDiets Warranties. eDiets hereby represents and warrants to and
for the benefit of Xxxxx.xxx and its Affiliates that:
(a) the eDiets Content may be used by Xxxxx.xxx as permitted by
this Agreement without violating or infringing the rights of any person or
entity, including, without limitation, rights of privacy or publicity,
contractual rights, copyright, trademark, or other Intellectual Property rights;
(b) publication of the eDiets Content by Xxxxx.xxx as permitted by
this Agreement will not constitute defamation, product disparagement or trade
libel;
(c) the use of the eDiets Marks by Xxxxx.xxx as permitted by this
Agreement will not infringe or violate the trademark, service xxxx or trade
dress rights of any Person; and
(d) during the Term of this Agreement, the pages of the eDiets
Site to which the Gateway Page provides links shall operate in accordance with
the specifications set forth on Exhibit D.
For the purposes of this Agreement, "Affiliate" shall mean another
entity that controls, is controlled by or is under common control with such
party; provided, however, that such entity is not a human being. For purposes of
this definition, the terms "controls," "is controlled by," or "is under common
control with," refer to the power to direct the policies and day-to-day
operations of an entity, whether by virtue of ownership of a voting securities,
contract, or otherwise.
12.3 Xxxxx.xxx Warranties. Xxxxx.xxx hereby represents and warrants to
and for the benefit of eDiets and its Affiliates that:
(e) that the Xxxxx.xxx Content, except to the extent of any eDiets
Content incorporated therein, used in connection with this Agreement does not
and will not violate or infringe the rights of any person or entity, including,
without limitation, rights of privacy or publicity, contractual rights,
copyright, trademark, or other intellectual property rights;
(f) that publication of the Xxxxx.xxx Content will not constitute
defamation, product disparagement or trade libel;
11
(g) that the use of the Xxxxx.xxx Marks by eDiets as permitted by
this Agreement will not infringe or violate the trademark, service xxxx or trade
dress rights of any person or entity.
12.4 Sole Remedy. Each party agrees that the sole and exclusive remedy
for a breach of the warranties set forth in this Section 12 shall be the
indemnification set forth in Section 13 below.
12.5 EXCEPT AS SPECIFIED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY
WARRANTY IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT AND HEREBY
DISCLAIMS ANY AND ALL IMPLIED OR STATUTORY WARRANTIES, INCLUDING ALL IMPLIED
WARRANTIES OF TITLE, MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A
PARTICULAR USE OR PURPOSE REGARDING SUCH SUBJECT MATTER. NEITHER PARTY WARRANTS
THAT ITS WEB SITE(S) OR THE CENTER WILL FUNCTION WITHOUT INTERRUPTION OR THAT
THEY ARE ERROR FREE. To the extent that a party may not, as a matter of
applicable law, disclaim any implied warranty, the scope and duration of such
warranty shall be the minimum permitted under such law.
13. INDEMNIFICATION.
13.1 Breach of Warranty. Subject to Section 13.3, eDiets and Xxxxx.xxx
each agree to indemnify, defend and forever hold the other party, its present
and former Affiliates, officers, members, stockholders, directors, employees,
and agents, and successors and assigns (collectively, the "Indemnitees")
harmless from and against any and all losses, liabilities, claims, costs,
damages, fees and expenses (including, without limitation, fines, forfeitures,
reasonable attorneys' fees, disbursements and administrative or court costs)
(collectively, "Indemnifiable Sums") that the other party may incur as a result
of third party claims arising from circumstances that constitute a breach or
alleged breach of such party's warranties set forth in Section 12 or otherwise
explicitly set forth in this Agreement.
13.2 Products, Services and Content.
(a) Xxxxx.xxx Liability. Subject to Section 13.3, Xxxxx.xxx agrees
to indemnify, defend and forever hold harmless the eDiets Indemnitees from and
against all Indemnifiable Sums arising out of third party claims to the extent
such claims are based upon: (a) content published on the Xxxxx.xxx Sites, other
than eDiets Content; (b) the operation of the Xxxxx.xxx membership program; or
(c) any product or service, other than a product or service provided by eDiets,
sold, licensed or otherwise made available on the Xxxxx.xxx Sites.
(b) eDiets Liability. Subject to Section 13.3, eDiets agrees to
indemnify, defend and forever hold harmless the Xxxxx.xxx Indemnitees from and
against all Indemnifiable Sums arising out of third party claims to the extent
such claims are based upon: (a) content published on the eDiets Sites, other
than Xxxxx.xxx Content; (b) tools used on or in connection with the eDiets Site,
including, but not limited to the Diet Tool; (c) the operation of the eDiets
membership program; (d) any product or service sold, licensed or otherwise made
12
available on any eDiets Site; or (e) any product or service sold, licensed or
made available by eDiets on the Diet Center.
13.3 Indemnification Requirements and Procedures. Each party's
obligation to indemnify the other pursuant to this Section 13, is predicated
upon the indemnified party's (i) giving prompt written notice of any
indemnifiable claim to the indemnifying party (provided that failure to give
such notice shall not release the indemnifying party from its obligations
hereunder except to the extent it is prejudiced thereby), (ii) giving the
indemnifying party the opportunity to assume (by written notice to the
Indemnitee) control over the defense and settlement of such claim, and (iii)
providing, at the indemnifying party's expense, all relevant information,
assistance and authority to enable to the indemnifying party to defend such
claim. Each party, as Indemnitee, may participate, at its own cost, in the
defense of any indemnifiable claim with counsel of its own choosing. Each party
agrees not to settle any indemnifiable claim without the prior written consent
of the other party, which consent shall not be unreasonably withheld or delayed.
13.4 Limitations on Indemnification. Notwithstanding the terms of
Sections 13.1 and 13.2, an indemnifying party shall have no liability for, nor
shall it indemnify, defend or hold any Indemnitee harmless from or against any
claim based on: (a) use of old, superseded content or Marks if such infringement
would have been avoided by the use of the current version of such content or
replacement Marks made available by the indemnifying party to the other party;
(b) use of content or Marks not in accordance with the terms of this Agreement;
(c) any modification of the indemnifying party's content or Marks not made or
explicitly authorized by the indemnifying party if, in the absence of such
modification, the content or Marks would not be infringing; or (d) a claimed act
of infringement or misappropriation which act occurred after the other party
received notice of such potential claim.
14. LIMITATION OF LIABILITY. EXCEPT FOR BREACHES OF SECTION 11 OR BREACHES
OF ANY LICENSE GRANT SET FORTH IN THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY
BE LIABLE TO THE OTHER FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL
DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR
OTHERWISE, WHETHER OR NOT THAT PARTY HAS BEEN ADVISED OF, KNEW, OR SHOULD HAVE
KNOWN OF, THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE OF
ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE LIMITATIONS ON LIABILITY FOR
DAMAGES SET FORTH IN THIS AGREEMENT SHALL BE INAPPLICABLE TO EACH PARTY'S
CONTRACTUAL OBLIGATION TO INDEMNIFY THE OTHER PARTY AS SET FORTH IN SECTIONS 2.6
AND 13.
15. GENERAL.
15.1 Assignment. Neither party may assign this Agreement, in whole or
in part, without the other party's written consent (which will not be
unreasonably delayed or withheld), except that no such consent will be required
in connection with an assignment or transfer of this Agreement to (a) a party's
successor in connection with a Change in Control of such party, provided that
such successor is not a competitor of the other party, or (b) to any entity that
is
13
controlled by, under common control with, or controls a party. For purposes
hereof, the terms "control", "controlled by" or "under common control with"
refer to the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of an entity, whether through the
ownership of voting securities, by contract or otherwise. Any attempt to assign
this Agreement other than as permitted above will be null and void. This
Agreement shall be binding upon and inure to the benefit of the parties and
their respective successors and assigns. For purposes of this Agreement, "Change
in Control" means a merger or consolidation of the party with, or any sale of
all or substantially all of the assets of such party to, any other person,
corporation or entity, unless as a result of such merger, consolidation or sale
of assets the holders of such party's voting securities prior thereto hold at
least fifty percent (50%) of the total voting power represented by the voting
securities of the surviving or successor corporation after such transaction.
15.2 Jurisdiction and Venue. The parties agree that all lawsuits
arising out of or related to this Agreement shall be brought in the state or
federal courts located in the state of California, San Francisco County, and
each party hereby referred consents to the exclusive personal jurisdiction of
such courts for such purpose.
15.3 Governing Law. This Agreement shall be interpreted and enforced in
accordance with the laws of the State of California as applied to agreements
made, entered into and performed entirely in California by California residents,
notwithstanding the actual residence of the parties, without giving effect to
any choice of laws of California that would require the application of the laws
of a state other than California.
15.4 Notice. Any notice under this Agreement will be in writing and
delivered by personal delivery, express courier, confirmed facsimile, confirmed
e-mail or certified or registered mail, return receipt requested, and will be
deemed given upon personal delivery, one (1) day after deposit with express
courier, upon confirmation of receipt of facsimile or e-mail or five (5) days
after deposit in the mail. Notices will be sent to a party at its address set
forth below or such other address as that party may specify in writing pursuant
to this Section.
15.5 No Agency. The parties are independent contractors and will have
no power or authority to assume or create any obligation or responsibility on
behalf of each other. This Agreement will not be construed to create or imply
any partnership, agency or joint venture.
15.6 Force Majeure. Any delay in or failure of performance by either
party under this Agreement will not be considered a breach of this Agreement and
will be excused to the extent caused by any occurrence beyond the reasonable
control of such party including, but not limited to, acts of God, power outages
and governmental restrictions.
15.7 Severability. In the event that any of the provisions of this
Agreement are held to be unenforceable, the remaining portions of the Agreement
will remain in full force and effect.
15.8 Entire Agreement. This Agreement is the complete and exclusive
agreement between the parties with respect to the subject matter hereof,
superseding that certain Letter of
14
Intent dated April 3, 2000, and any other agreements and communications (both
written and oral) regarding such subject matter. This Agreement may only be
modified, or any rights under it waived, by a written document executed by both
parties.
XXXXX.XXX NETWORKS, INC. XXXXXX.XXX, INC.
By: /S/ Xxx Xxxx By: /S/ Xxxxx X. Xxxxxx
Name: Bus Xxxx Name: Xxxxx X. Xxxxxx
Title: Vice President Eastern Ad Sales Title: CEO and Chairman
0000 Xxxxxxx Xxxxx, Xxxxx 000 0000 Xxxx Xxxxxxxxx Xxxxxxxxx, Xxxxx 0
Xxx Xxxxx, XX 00000 Xxxxxxxxx Xxxxx, XX 00000
Voice: (000) 000-0000 Voice: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
15
EXHIBIT A
[GRAPHIC OMITTED]
A-1
EXHIBIT B
DIET CENTER LOGO
eDiets will have the following Channel and Subchannel Center Logo Placements
(1) Health Channel Home Page and Two Sub Channels of Choice
xxxx://xxx.xxxxx.xxx/xxxxxx/
2 Sub Channels:
Health News xxxx://xxx.xxxxxxxxxx.xxx/xxxxxxx/
Condition & Ailments xxxx://xxx.xxxxxxxxxx.xxx/xxxxxxx/xxxx_xxx/
Estimated Impressions per month- 160,000
Estimated Impressions for Year 1- 1,920,000
Estimated Impressions for Year 2- 1,920,000
Total Estimated Impressions: 3,840,000
OR
(2) Food Channel Home Page and Two Sub Channels of Choice
xxxx://xxxx.xxxxxxxx.xxx/xxxx/
2 Sub Channels:
Restaurants xxxx://xxxx.xxxxxxxx.xxx/xxxx/xxxxxxxx/00xxxx00.xxx
Food For Thought xxxx://xxxx.xxxxxxxx.xxx/xxxx/xxxxxxxx/00xxxx00.xxx
Estimated Impressions Per month- 300,000
Estimated Impressions for Year 1- 3,600,000
Estimated Impressions for Year 2- 3,600,000
Total Estimated impressions: 7,200,000
(3) Fitness Channel Home Page and Two Sub Channels of Choice
xxxx://xxx.xxxxx.xxx/xxxxxxx/
2 Sub Channels
Weight Loss xxxx://xxx.xxxxxxxxxx.xxx/xxxxxx/xxxxxxxx.xxxx
Fitness News xxxx://xxx.xxxxxxxxxx.xxx/xxxxxx/
Estimated Impressions per month- 60,000 (before re-launch)
Estimated Impressions for Year 1- 720,000
Estimated Impressions for Year 2- 720,000
Total Estimated impressions: 1,440,000
B-1
Upon committing to this partnership, eDiets will receive a two-week banner
advertisement test in rotation across the channels set forth above in order to
determine the most suitable fixed placements for the eDiets center logos. This
test will consist of a total of 100,000 impressions, 20,000 per channel. Given
that expectations for banner advertisement performance are not necessarily
equivalent to that of a fixed center logo, eDiets understands and acknowledges
that the results will be considered directional in nature and not used to
determine ultimate performance of the eDiets center logos placed in the channels
selected by eDiets.
The parties may agree at a later date to add other channels to the above list of
channels. In any event, eDiets may select from only three channels.
PROMOTION OF DIET CENTER ON XXXXX.XXX SITES
Relevant Feature Content Sponsorships
Xxxxx.xxx will provide eDiets with a fixed top and 125x365 side banner on eight
(8) of the content features set forth below.
eDiets may select up to eight (8) of the content features set forth below:
(1) Fat to Firm at 40+ (Estimated Impressions per Month- 7,000)
xxxx://xxx.xxxxxxxxxx.xxx/xxxxxx/xxxxxxxxx/
(2) Nutrition News - If you make one change to your diet, what would it be?
(This is an Expert piece) (Estimated Impressions per Month- 10,000)
xxxx://xxx.xxxxxxxxxx.xxx/xxxxxxx/xxxx/
(3) 71 Weight Loss Tips (Estimated Impressions per Month- 100,000)
xxxx://xxx.xxxxxxxxxx.xxx/xxxxxx/000000/
(4) Weight Loss Program - Working Out (Estimated Impressions per Month- 15,000)
xxxx://xxx.xxxxxxxxxxxx.xxx/xxxxxx/xxxxxxx.xxxx
(5) 45 Best and Worst Belly Flatteners (pull down menu to select scenarios with
exercise tips) (Estimated Impressions per Month- 7,000)
xxxx://xxx.xxxxxxxxxxxx.xxx/xxxxxx/xxxxxxxxx/
(6) 8 Ways to Make Weight lifting fun (Estimated Impressions per Month- 16,000)
xxxx://xxx.xxxxxxxxxx.xxx/xxxxxx/xxxx/
(7) Gym Shorts (Q&A Xxxxxxxx Xxxxxx, Fitness Editor, Prevention) (Estimated
Impressions per Month- 10,000) xxxx://xxx.xxxxxxxxxx.xxx/xxxxxx/xxx/
(8) Calorie Calculator (Tool) (Estimated Impressions per Month- 20,000)
xxxx://xxx.xxxxxxxxxx.xxx/xxxxxx/xxxxxxx/
(9) Weight Loss Program: Success Stories (Estimated Impressions per Month-
17,000)
B-2
xxx.xxxxxxxxxx.xxx/xxxxxx/xxxxxxx.xxxx
(10) Weight Quiz: What will you Weigh one Year from now? (Quiz) (Estimated
Impressions per Month- 39,000) xxx.xxxxxxxxxx.xxx/xxxxxx/xxxx_xxxx_xxx/
(11) Weight Loss Program Planner (Tool) (Estimated Impressions per Month-
50,000) xxx.xxxxxxxxxx.xxx/xxxxxx/xxxxxxx/
(12) A Choice of one top level sponsorship in the newly launched Fitness Channel
scheduled for 3Q, 2000
xXxxxx.xxx will have the first right to substitute any of the following content
features for any of the eight (8) content features selected above once inventory
on such features becomes available. When the following content features become
available, xXxxxx.xxx has the choice to switch sponsorships and not add to their
overall sponsorships.
(1) Weight Loss Program: Finding Support (Available 6/30/01) (Estimated
Impressions per Month- 2,000) xxx.xxxxxxxxxx.xxx/xxxxxx/xxxxxxx.xxxx
(2) Weight Loss Program: Eating Well (Available 6/30/01) (Estimated Impressions
per Month- 2,000) xxx.xxxxxxxxxx.xxx/xxxxxx/xxxxxxx.xxxx
(3) Weight Loss Program: Getting Started (Available 6/30/01) (Estimated
Impressions per Month- 7,000) xxx.xxxxxxxxxx.xxx/xxxxxx/xxxxxxxx.xxxx
ROS advertisement rotation on Xxxxx.xxx Sites
The Following Advertising Impressions will include these campaign elements:
-All Sponsorships
-Targeted Banner Rotations (Targeted rotation includes Fitness,
Entertainment, Wedding, Health, Fashion & Beauty, Food Channels,
Redbook, Cosmopolitan, Prevention, Good Housekeeping, eHarlequin and
Home and
Garden and other relevant areas as they become available)
-ROS
Per Year
o Impressions Guaranteed per month: 3,750,000
o Total Advertising Impressions Guaranteed: 45,000,000
(of which shall not include the top 468x60 nor the 120x240 banner
located on the Gateway page of the Diet Center) 60% ROS and 40%
Targeted and Sponsorship elements
B-3
o Ad banners on the Diet Center will be co-branded with the Xxxxx.xxx
and eDiets logos
Xxxxx.xxx Special Membership Integration Opportunities:
Xxxxx.xxx will provide eDiets with one (1) membership offer opportunity to
Xxxxx.xxx users who have registered for membership on the Xxxxx.xxx Sites per
quarter after the Effective Date. These member offers will be promoted via
membership newsletters as listed below, on the Membership Menu Page
(xxxx://xxxxx.xxx/xxxxxxxxxx/xxxxxxx.xxxx) and on the Promotion Page
(xxxx://xxxxx.xxx/xxxxxxxxxx/). The member offer provided by eDiets can not run
anywhere other than Xxxxx.xxx for one month prior to or one month after the
member promotion period without Xxxxx.xxx's written consent
eDiets shall offer in any membership offer provided pursuant to this Agreement a
minimum discount of 20% on the fair market value of any products or services.
Placement within Xxxxx.xxx Newsletters:
xXxxxx.xxx will have the opportunity to participate within the following
newsletters, the placement, frequency and timing of such participation to be
determined by Xxxxx.xxx in its sole discretion provided that Xxxxx.xxx uses its
best efforts not to place reference to eDiets on the same page as content which
may appear to be contrary to the basic foundation of the eDiets' philosophy.
During the Term, xXxxxx.xxx will be guaranteed 12 million circulation per year
from and after the Effective Date via newsletters, including but not limited to:
>> Fashion & Beauty Newsletter: 300,000 subscribers per month
>> Food News: 180,000 subscribers per month
>> Prevention: 1,600,000 subscribers per month
>> Internet Scopes: 2,400,000 subscribers per month
>> Sex & Romance: 120,000 subscribers per month
>> What's New: 1,100,000 subscribers per month
>> Xxxxx.xxx Member Newsletter: 1,700,000 subscribers per month
Guaranteed Circulation Per Year: 12,000,000
Anchor Tenancy Sponsorship of the Xxxxx.xxx Promotions/ Sweepstakes:
Xxxxx.xxx will provide xXxxxx.xxx with three (3) Anchor Sponsorships and two (2)
Premier Sponsorships of the following Xxxxx.xxx promotions.
The "Anchor Sponsorship" includes the following elements:
o Grand prize sweepstakes opportunity
o Exclusive sponsorship of an editorial feature showcased within the promotion
o Availability to ask two (2) demographic or brand research questions
o Full database of names collected from the sweepstakes (estimated 30,000 to
60,000 names), the use of which is subject to all applicable Xxxxx.xxx privacy
policy.
o Network wide promotion of the sweepstakes, the placement, size, frequency and
timing of such promotions to be determined by Xxxxx.xxx in its sole
discretion.
B-4
Included in a "Premier Sponsorship" are all of the following elements:
o 1/st/ place sweepstakes opportunity
o Co-sponsorship of an editorial feature showcased within the promotion
o Full database of names collected from the sweepstakes (30,000 to 60,000 names)
o Network wide promotion of the sweepstakes, the placement, size, frequency and
timing of such promotions to be determined by Xxxxx.xxx in its sole
discretion.
Available Promotions for Participation:
o Wedding Promotion (Year 2000)
o Holiday Survival Guide (Year 2000)
o Resolutions Promotion (Year 2001)
o Valentine's Day Promotion (Year 2001)
o Mother's Day Promotion (Year 2001)
Total estimated impressions per promotion: 1,000,000
Xxxxx.xxx E Commerce Elements:
Sports/Fitness Diet Center Homepage:
xxxx://xxx.xxxxx.xxx/xxxxxxxx/xxxxxxxxxxxxx/xxxxxx/
o Rotating "Featured Partner" Ad Button on the side of the page
All Sub Categories:
o Rotating "Featured Partner" Ad Button on the side of the page
o Affiliate text link placement within all sub-sub categories
- New category creation at a minimum of 3 weeks from receipt of all coded links,
descriptions and images have been received from client. Note: if category
requires the participation of more than one client, it will not be created
until all material has been received from all participants.
Impression Break-Out Per Year:
Advertising Impressions: Estimated Guaranteed
-Sponsorships and Targeted Rotations: 18,000,000
-ROS 27,000,000
Total Guaranteed Advertising Impressions: 45,000,000
QUARTERY IMPRESSION GUARANTEED 11,250,000
Diet Center, Channel & SubChannel
Impressions: Estimated Guaranteed
"eDiets Diet Center" logo impressions: 30,000,000
B-5
"eDiets Diet Center" logo impressions: 13,000,000
Other Campaign Impressions: Estimated Guaranteed
Newsletters 12,000,000
Promotions 500,000
Added Value Commerce Impressions: 3,600,000
Total Estimated Impressions: 79,100,000
Total Impressions Guaranteed: 70,000,000
B-6
EXHIBIT C
PAYMENT SCHEDULE
Pricing/Delivery: PRICING AS PART OF THIS PACKAGE ONLY
Flight: 2 Year Deal
Net Advertising CPM: $37.00 (Just Co-Branded Banners)
Overall Net CPM $28.57 (With all other elements)
Total Net Cost: $2,000,000 (Per Year)/$4,000,000 (Two Years)
Total Guaranteed Impressions: 70,000,000 (Per Year)/140,000,000 (TwoYears)
YEAR 1
10 days after Effective Date-Production $250,000
Last day of each of the 1st through 12/th/ months
after the Launch Date $145,833
Media Component $138,750
Other (Promotions, production, etc) $7,083
YEAR 2
Last day of each of 13/th/ through 24/th/ months
after the Launch Date $166,666
Media Component $138,750
Other (Promotions, production) $27,916.66
Total Payment to Xxxxx.xxx $4,000,000
[GRAPHIC OMITTED]
C-1
EXHIBIT D
GENERAL ADVERTISING & PRODUCTION GUIDELINES
The following are the Xxxxx.xxx advertising and production guidelines. Any
exceptions to these guidelines require prior written approval of Xxxxx.xxx.
All impressions per section are estimated; however, Xxxxx.xxx shall extend every
reasonable effort to deliver the estimated number of impressions per section as
set forth in Exhibit B. Notwithstanding the foregoing, Xxxxx.xxx does guarantee
a minimum of 13,000,000 impressions promoting eDiets per year on the Diet
Center.
BANNER CREATIVE & STANDARDS
All campaigns must submit 468x60, 234x60, and 125x365 creative units.
1. ACCEPTED BANNER SIZES
o 234x60 half-banner (8k or less)
o 468x60 banner (10k or less)
o 125x365 sponsorship (12K or less)
o 125x125 promo (8K or less; reserved for marketing and co-branded tagged
tune-ins with management approval)
2. BANNER CREATIVE FORMATS ACCEPTED
o GIF (animated and non-animated)
o JPEG
o HTML
o JAVASCRIPT
3. THE FOLLOWING ADDITIONAL FORMATS CAN POTENTIALLY BE USED BUT REQUIRE
ADDITIONAL PRODUCTION AND TESTING TIME TO ENSURE NETWORK COMPATIBILITY:
o JAVA
o ENLIVEN
o UNICAST
o FLASH
Please check with ad production regarding other formats.
D-1
PRODUCTION LEAD TIME AND "SHIP TO" INFO
Lead Times
The following lead times should be considered standard. Additionally, more
extensive campaigns/sponsorships and/or incorporating new technologies may take
longer.
o Banner campaigns require 5 business days from the time all advertiser
materials/instructions are received.
o Creative rotation changes/refreshes require 3 business days from the time all
advertiser materials/instructions are received.
"Ship To" Info
All creative should be sent to xxx@xxxxx.xxx.
ADVERTISING/LINKS - CATEGORIES NOT ACCEPTED
The following categories of advertising or links to such material are not
accepted on Xxxxx.xxx:
o Tobacco
o Controlled substances
o Liquor
o Firearms
o Gambling
o Sexually explicit advertising and/or advertising that is degrading.
o Xxxxx.xxx, specifically Prevention on-line (Healthy Ideas) cannot accept
advertising that promotes: 1) a product deemed defective or unsafe by the
FDA, 2) a product, therapy or service whose possible harm to the consumer
outweighs it benefits, and 3) a health product for which there is no good
evidence of benefit and no good reason to believe there is a benefit.
THIRD PARTY AD SERVING
Xxxxx.xxx accepts third party ad serving. However, third party serving relies on
the third party's servers being fully operational. If Xxxxx.xxx determines that
the servers are unreliable, the banners must be served from Xxxxx.xxx's site
until such time the third party servers are fully operational. Also note that
Xxxxx.xxx cannot track click-thrus in its NetGravity reports for rich media
banners that are served remotely.
Xxxxx.xxx must be notified in writing regarding the product categorizations of
all creative rotations as well as any revisions, in order to maintain proper
placement and competitive separation. Any changes made to creative rotations
without prior notification to Xxxxx.xxx may result in the interruption or
temporary discontinuation of ad delivery until all ad placements and competitive
separation issues can be resolved.
NETWORK DESIGN CONFIGURATION
D-2
Xxxxx.xxx reserves the right to make design and configuration changes to all
pages and features within the network. Xxxxx.xxx shall notify its advertisers of
any changes that significantly impacts ad placements.
D-3
