EXHIBIT 10.28
This (the "Agreement") is entered into as of the 11th
day of March, 1999 by and between xxxxxx.xxx, inc., a Delaware corporation,
located at 0000 Xxxxxxxx Xxxx Xxxxx, Xxxxxxxx Xxxxx, Xxxxxx, Xxxxx 00000
("xxxxxx.xxx"), and Vitamin Shoppe Industries, Inc., a New Jersey corporation,
located at 0000 Xxxxxxxx Xxxxxx, Xxxxx Xxxxxx, Xxx Xxxxxx 00000 ("Sponsor").
WHEREAS, xxxxxx.xxx develops, markets and maintains an integrated suite of
Internet enabled, consumer oriented software applications and services,
including but not limited to, xxxxxx.xxx. electronic data interchange services,
and advertising and promotional services on the Internet at the website
xxxx://xxx.xxxxxx.xxx (together with any successor or replacement websites, the
"xxxxxx.xxx Website");
WHEREAS, Sponsor markets and sells vitamins and nutritional supplements on
the Internet at the website xxxx://xxx.xxxxxxxxxxxxx.xxx (together with any
successor or replacement websites, the "Sponsor Website"; and together with the
xxxxxx.xxx Website, the "Sites"); and
WHEREAS, Sponsor desires to have certain exclusive rights with respect to
vitamins and nutritional supplements on the xxxxxx.xxx Website and to be the
exclusive vitamin and nutritional supplement tenant in the E-Commerce area of
the xxxxxx.xxx Website and xxxxxx.xxx desires to promote Sponsor for vitamin and
nutritional supplements and to make Sponsor its' exclusive vitamin and
nutritional supplement tenant pursuant to the terms and conditions contained in
this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein and for other good and valuable consideration the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1.
EXCLUSIVE VITAMIN SPONSOR
1.1. Exclusive Vitamin Sponsor. Throughout the Term (as defined below),
Sponsor shall be the sole and exclusive vitamin and supplement sponsor of, and
the sole and exclusive vitamin and supplement advertiser on, the xxxxxx.xxx
Website, and in furtherance thereof, xxxxxx.xxx shall not (i) place any names,
trademarks, links, buttons, advertisements or content (other than editorial
content which does not contain links) of any Sponsor Competitor (as defined
below) (collectively, "Competitor Content"), or any links which link directly to
any Competitor Content, on any area of the xxxxxx.xxx Website; or (ii) other
than Sponsor banner advertisements, allow any banner advertisements for or
promoting the sale of vitamins or nutritional supplements to appear on the
xxxxxx.xxx site; provided, however, that the Greentree
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Confidential treatment has been requested for portions of this exhibit. The copy
filed herewith omits the infomation subject to the confidential request.
Omissions are designated ***. A complete version of this exhibit has been filed
seperately with the Securities and Exchange Commission.
link which is currently on the xxxxxx.xxx Website may continue in its current
form until April 18, 1999. For purposes of this Agreement the term "Sponsor
Competitor" means: (i) any entity set forth on Exhibit A attached hereto, which
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Exhibit A may be updated from time to time by Sponsor, subject to the reasonable
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approval of xxxxxx.xxx; or (ii) any entity which derives more than 67% of its
revenues from the sale of vitamins and/or nutritional supplements.
1.2. Sponsor Placements. During the Term, in no way limiting the
foregoing in Section 1.1, Sponsor will receive the following sponsorship and
promotional placements on the xxxxxx.xxx Website:
(i) Sponsor shall be the exclusive sponsor of the Nutrition Center
on the xxxxxx.xxx Website and each area (other than the "Daily Special" area,
the "Healthy Recipes" area and any other area which may be created in the future
which specifically relates to cooking or food recipes (collectively, the
"Excluded Areas")) within the Nutrition Center, including, the "Vitamins &
Supplements" area, the "Vitamins and Minerals" area, the "Nutrition News" area,
the "Nutrition for Healthy Living" area and the "Nutrition for your Condition"
area (collectively, the "Sponsor Areas"). In furtherance of the foregoing,
xxxxxx.xxx agrees that: (A) it shall place a permanent Sponsor logo containing a
Sponsor link on each page of the Sponsor Areas; (B) Sponsor banner advertising
(which advertising shall be served by Sponsor) on the top of at least 70% of all
page views of pages within the Sponsor Areas; and (C) it shall allow Sponsor, in
Sponsor's sole discretion, to place Sponsor impressions in up to all four of the
e-commerce tiles appearing on pages within the Sponsor Areas; (D) only Sponsor
e-commerce tiles shall appear within the Sponsor Areas; and (E) Sponsor links
may link, in Sponsor's sole discretion, to either the Sponsor Website or to
Sponsor's Vitamin Buzz website ("Vitamin Buzz"). Sponsor shall be treated no
less favorably in Sponsor Areas than any other similarly situated sponsor of the
xxxxxx.xxx Website is treated within its sponsored areas of the xxxxxx.xxx
Website. The Excluded Areas may be sponsored by entities other than Sponsor,
provided, that no Sponsor Competitor, or any drugstore*** may sponsor any of the
Excluded Areas. Schedule 1.2(i) is a page shot mock-up of the Nutrition Center
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home page and the home page of each major area within the Nutrition Center,
substantially as they will appear on their respective launch dates.
(ii) xxxxxx.xxx shall place a permanent Sponsor logo on the home page
of the xxxxxx.xxx Website so that it appears prominently. Such logo shall
contain a link to, in Sponsor's sole discretion, either Sponsor's Website or the
Vitamin Buzz. No logo of any other similarly situated sponsor of the xxxxxx.xxx
Website shall be more prominently displayed on the home page of the xxxxxx.xxx
Website, whether in terms of size, placement or frequency.
__________________________
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
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(iii) From time to time, xxxxxx.xxx shall create content which
features vitamins and nutritional supplements. Sponsor's Advertising Content
shall be displayed on such pages which host vitamins and nutritional supplement
content to the same extent and subject to the same restrictions as such Sponsor
Advertising Content is displayed in the Sponsor Areas.
(iv) As used in this Section 1.2, the term exclusive with respect to
any area means that: (A) Sponsor shall be the sole and exclusive vitamin and
nutrition supplement provider in such area, and that no Competitor Content, or
links which link directly to any Competitor Content, shall appear in such area
where Sponsor has such exclusivity; and (B) other than Sponsor banner
advertisements, no banner advertisements for or promoting the sale of vitamins
or nutritional supplements shall appear in such area. Xxxxxx.xxx's obligations
with respect to each area of the xxxxxx.xxx Website set forth in this Section
1.2 shall also apply to all areas which are successors or replacements to such
areas and to all new vitamin and nutrition areas on the xxxxxx.xxx Website
launched on the xxxxxx.xxx Website after the date of this Agreement. Only
Sponsor may promote the sale of vitamins and supplements in the Sponsor Areas.
1.3. Impressions. Not including any permanent Sponsor links, banners or
buttons pursuant to Section 1.2, xxxxxx.xxx shall, during the Initial Term (as
defined below) provide *** advertising banner and e-commerce tile impressions
consisting of Sponsor Advertising Content, *** shall be delivered during each
month of the Initial Term. If by the end of the Initial Term xxxxxx.xxx has not
delivered the foregoing number of impressions, then, as Sponsor's sole remedy
for such breach, the Term of this Agreement shall be extended until xxxxxx.xxx
has satisfied its obligations under this Section.
1.4. Xx. Xxxx Health Links. In addition to the fees specified in Section
2.5.1, Sponsor shall pay *** to xxxxxx.xxx and in exchange therefore shall have
the right to use as many Xx. Xxxx Health Links as Sponsor, in its sole
discretion, wishes to use, all in accordance with the terms of the xxxxxx.xxx
Healthlinks Agreement, the form of which is attached hereto as Exhibit B.
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1.5. Content License to Third Parties. If xxxxxx.xxx wishes to allow any
area on the xxxxxx.xxx Website set forth in this Section 1 in which Sponsor is
the exclusive sponsor of vitamins and supplements to be displayed on any website
other than the xxxxxx.xxx Website (regardless of whether such other website is
owned by xxxxxx.xxx or not and regardless of whether such content is served up
by xxxxxx.xxx or by a third party) and if xxxxxx.xxx is able to control the
advertising placements within or sponsorship of such area on such third party
website, then xxxxxx.xxx shall, prior to contacting any other party with respect
to such advertisements or sponsorship, notify Sponsor in writing prior to the
launch of such area and
__________________________
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
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shall negotiate in good faith with Sponsor in order to allow Sponsor to be the
exclusive advertiser on and sponsor of such area on such third party website.
If Sponsor and xxxxxx.xxx have not reached an agreement on the principal terms
of such agreement within 15 business days after Sponsor is notified of such
opportunity, xxxxxx.xxx shall be free to commence negotiations with other
parties with respect to such opportunities.
1.6. Modifications. Each party reserves the right to modify the design,
organization, structure, look and feel, navigation and other elements of its
Site, provided, that xxxxxx.xxx may not, without the prior written consent of
Sponsor, substantially alter, change or modify the look, feel or functionality
of the Sponsor Areas of the xxxxxx.xxx Website, so as to materially change the
Sponsor's prominence or placements within such areas.
ARTICLE II.
SPONSORSHIP POLICY
2.1. Content. For each of the placements described in Section 1,
including all banner advertisements and e-commerce tiles, Sponsor shall provide
xxxxxx.xxx with all content including all trademarks, logos or banners (the
"Sponsor Advertising Content"), in accordance with the specifications set forth
on Exhibit C attached hereto, which will be displayed on the xxxxxx.xxx Website
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and which will link, in Sponsor's discretion, to either the Sponsor Site or
Vitamin Buzz. The parties hereto agree to cooperate and work together in the
establishment of all links, buttons and banners placed pursuant to this
Agreement. Links from one party's Site to the other party's Site shall in no
way alter the look, feel or functionality of the linked Site.
2.2. Changes and Cancellations. Any cancellations or change orders must
be made in writing and acknowledged by xxxxxx.xxx. Sponsor shall not be
required to change Sponsor Advertising Content more often than once per month.
Sponsor shall provide xxxxxx.xxx with Sponsor Advertising Content artwork at
least five business days in advance of the publication date.
2.3. Statistics. Xxxxxx.xxx shall provide Sponsor with Sponsor usage
reports on a monthly basis. Sponsor shall have the right to use such data for
its internal business purposes, but may not provide such data for use by third
parties. Such reports shall contain substantially the same types of information
delivered to other of xxxxxx.xxx's similarly situated partners, which reports
will include information regarding impressions, clickthroughs and any
information known about the users of such areas in aggregate form.
2.4. Publication Error. In the event of a publication error in the
Sponsor Advertising Content arising exclusively from the fault of xxxxxx.xxx,
Sponsor shall notify xxxxxx.xxx of such error and xxxxxx.xxx will use reasonable
efforts to promptly correct the error.
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2.5. Payment.
2.5.1. Fees. The fee for the placements and other rights provided
under this Agreement for the Initial Term (as defined below) is *** is payable
within *** of the date of this Agreement, with the balance of such fee payable
by Sponsor in *** consecutive equal installments of *** payable by the *** of
the Initial Term commencing *** following *** the Launch Date (as defined
below).
2.5.2. Taxes. Sponsor shall be responsible for the collection of any
and all value added, consumption, sales, use or similar taxes and fees payable
with respect to all sales made on the Sponsor Website.
ARTICLE III.
OWNERSHIP OF DATA
3.1. User Data. Xxxxxx.xxx requests its users ("Individual Users"), to
provide personal information when they sign up for certain services including
requesting information on a specific disease, chat rooms and forums ("User
Data"). Such User Data is owned by each Individual User and xxxxxx.xxx does not
use or disclose any such User Data without the consent of the Individual User.
3.2. Data Release to Sponsor. Xxxxxx.xxx shall provide to Sponsor any and
all User Data for which the Individual User has specifically authorized release
to Sponsor. In the event that an Individual User grants rights to Sponsor for
use of his User Data, Sponsor shall use its best efforts to keep User Data
confidential and shall only use such data in an ethical manner. Sponsor may use
User Data for its owns purposes, but User Data may not be disclosed, sold,
assigned, leased or otherwise disposed of to third parties by Sponsor.
3.3. Data Confidentiality. The User Data shall be xxxxxx.xxx Confidential
Information under Article 5 and shall in addition be subject to the terms of
this Article 3. Sponsor shall be liable for the conduct of its employees, agents
and representatives who in any way breach this Amendment. Sponsor's obligations
to treat the User Data as Confidential Information under Article 5 and this
Article 3 shall continue in perpetuity following termination of this Amendment.
__________________________
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
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3.4. Sponsor User Data. All users on the Sponsor Website, including,
users linked to the Sponsor Website from the xxxxxx.xxx Website, will be deemed
to be customers of Sponsor. Accordingly, all rules, policies and operating
procedures of Sponsor concerning customer orders, customer service and sales
will apply to those customers. Sponsor may change its policies and operating
procedures at any time. Sponsor will determine the prices to be charged for
products and other merchandise sold on the Sponsor Website in accordance with
its own pricing policies. Prices and availability on the Sponsor Website may
vary from time to time. Notwithstanding Section 3.3, the parties hereto hereby
agree that title to any user information of any users on the Sponsor Website,
including but not limited to the name, address and e-mail address of users,
obtained by Sponsor from such users shall be owned by the Sponsor. The parties
hereto agree that pursuant to this Section 3 they may each collect and own
similar information from and with respect to individuals who visit each of their
Sites.
ARTICLE IV.
LICENSES
4.1. Licenses.
4.1.1. Subject to the terms and conditions hereof, Sponsor hereby
represents and warrants that it has the power and authority to grant, and does
hereby grant to xxxxxx.xxx a non-exclusive, non-transferable, royalty-free,
worldwide license to reproduce and display all logos, trademarks, trade names
and similar identifying material relating to Sponsor (the "Sponsor Marks")
solely in connection with the promotion, marketing and distribution of the
parties and the Sites in accordance with the terms hereof, provided, however,
that xxxxxx.xxx shall, other than as specifically provided for in this
Agreement, not make any specific use of any Sponsor Xxxx without first
submitting a sample of such use to Sponsor and obtaining its prior consent,
which consent shall not be unreasonably withheld. The foregoing license shall
terminate upon the effective date of the expiration or termination of this
Agreement.
4.1.2. Subject to the terms and conditions hereof, xxxxxx.xxx hereby
represents that it has the power and authority to grant, and does hereby grant
to Sponsor a non-exclusive, non-transferable, royalty-free, worldwide license to
reproduce and display all logos, trademarks, trade names and similar identifying
material relating to xxxxxx.xxx and, solely as allowed pursuant to this
Agreement, to the Dr. C. Xxxxxxx Xxxx name (collectively, the "xxxxxx.xxx
Marks") solely in connection with the promotion, marketing and distribution of
the parties and the Sites in accordance with the terms hereof, provided,
however, that Sponsor shall, other than as specifically provided for in Section
4.4 of this Agreement, not make any specific use of any xxxxxx.xxx Marks without
first submitting a sample of such use to xxxxxx.xxx and obtaining its prior
consent, which consent shall not be unreasonably withheld. The foregoing
license shall terminate upon the effective date of the expiration or termination
of this Agreement.
4.2. Intellectual Property Ownership. Each party shall retain all right,
title, and interest (including all copyrights, patents, service marks,
trademarks and other intellectual property rights) in its Site. Except for the
license granted pursuant to this Agreement, neither
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party shall acquire any interest in the other party's Site or any other services
or materials, or any copies or portions thereof, provided by such party pursuant
to this Agreement.
4.3. Removal of Materials. Each party reserves the right to reject or
remove any content, information, data, logos, trademarks and other materials
(collectively, "Materials") provided by the other from its servers at any time
if, in its reasonable opinion, it believes that any such Materials infringe any
third-party intellectual property right, are libelous or invade the privacy or
violate other rights of any person, violate applicable laws or regulations, or
jeopardize the health or safety of any person. Each party will use reasonable
efforts to contact the other prior to removing any of its Materials from its
servers and will work with the other to resolve the issue as quickly as
possible.
4.4. Use of Name and Likeness. Sponsor shall not have any right to use
the name and/or likeness of Dr. C. Xxxxxxx Xxxx or to make any statements,
whether written or oral, which state or otherwise imply, directly or indirectly,
any endorsement from or affiliation with Dr. C. Xxxxxxx Xxxx in any manner
whatsoever without the prior written consent of xxxxxx.xxx, which consent may be
withheld in xxxxxx.xxx's sole discretion. Notwithstanding the foregoing,
Sponsor is hereby authorized during the Term to use the logo and tag lines set
forth on Exhibit D, on its Site, in its catalogs and in its stores in connection
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with its marketing and promotion efforts, in each case in accordance with the
terms of this Agreement and subject to the reasonable approval of xxxxxx.xxx.
Sponsor is hereby authorized to place such logo and any one of such tag lines on
its Site, in its stores and in its catalogs in accordance with the terms of this
Agreement..
ARTICLE V.
CONFIDENTIALITY
5.1. Confidentiality. For the purposes of this Agreement, "Confidential
Information" means non-public information about the disclosing party's business
or activities that is proprietary and confidential, which shall include, without
limitation, all business, financial, technical and other information of a party
marked or designated "confidential" or by its nature or the circumstances
surrounding its disclosure should reasonably be regarded as confidential.
Confidential Information includes not only written or other tangible
information, but also information transferred orally, visually, electronically
or by any other means. Confidential Information will not include information
that (i) is in or enters the public domain without breach of this Agreement,
(ii) the receiving party lawfully receives from a third party without
restriction on disclosure and without breach of a nondisclosure obligation or
(iii) the receiving party knew prior to receiving such information from the
disclosing party or develops independently.
5.2. Exclusions. Each party agrees (i) 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 (ii) 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.
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5.3. Exceptions. Notwithstanding the foregoing, each party may disclose
Confidential Information (i) to the extent required by a court of competent
jurisdiction or other governmental authority or otherwise as required by law,
provided, however, that with respect to filing obligations under the securities
laws, each party will, to the extent that it is required to file this Agreement,
file this Agreement in redacted form reasonably approved by the other party
prior to such filing or (ii) on a "need-to-know" basis under an obligation of
confidentiality to its legal counsel, accountants, banks and other financing
sources and their advisors. Except as set forth in this Section 5.3, the terms
and conditions of the Agreement will be deemed to be the Confidential
Information of each party and will not be disclosed without the prior written
consent of the other party.
5.4. Sponsor Advertising Content. xxxxxx.xxx hereby confirms and agrees
that during the Term Sponsor shall be able to serve up its own advertising using
NetGravity software and tags, and that xxxxxx.xxx shall not do anything which
would interfere or hamper such serving. Notwithstanding anything in this
Agreement, all information regarding Sponsor Advertising Content (including
Sponsor banner advertisements and e-commerce tiles), including all users viewing
and clicking information with respect thereto, shall be deemed to be
Confidential Information of Sponsor (collectively, "Sponsor Confidential
Advertising Information"). To the extent that in connection with xxxxxx.xxx's
advertising efforts, or otherwise, any third party may or will receive any
Sponsor Confidential Advertising Information from or through xxxxxx.xxx,
xxxxxx.xxx agrees that prior to such third party receiving any such information
xxxxxx.xxx will enter into an agreement with such third party pursuant to which
such third party will agree to keep any such Sponsor Confidential Advertising
Information received by such third party confidential to the same extent as
xxxxxx.xxx is required to keep such information confidential under the
Agreement. To the extent that any third party breaches any such agreement of
confidentiality with xxxxxx.xxx, xxxxxx.xxx hereby agrees to enforce its rights
and pursue its remedies under such agreement to the fullest extent permitted by
law, including seeking equitable relief, ***
__________________________
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
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ARTICLE VI.
REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION
6.1. Sponsor Warranty. Sponsor represents and warrants for the benefit of
xxxxxx.xxx that the Sponsor Advertising Content and Sponsor Marks are true and
correct and do not and will not for the Term infringe upon or violate: (i) any
intellectual property rights, including any copyright or trademark rights, of
any third party and do not and will not constitute a defamation or invasion of
the rights of privacy or publicity of any kind of any third party, (ii) any
applicable law, regulation or non-proprietary third-party right. Sponsor
further represents and warrants for the benefit of xxxxxx.xxx that the Sponsor
Advertising Content does not contain any material which is unlawful, harmful,
abusive, hateful, obscene, threatening or defamatory and Sponsor is not an
entity or an affiliate of any entity which engages in the manufacture or
wholesale distribution of tobacco or tobacco products (such activities are
collectively referred to herein as "Tobacco Industry Affiliation").
6.2. Xxxxxx.xxx Warranty. Xxxxxx.xxx represents and warrants for the
benefit of Sponsor that the xxxxxx.xxx Marks are true and correct and do not and
will not for the Term infringe upon or violate: (i) any intellectual property
rights, including any copyright or trademark rights, of any third party and do
not and will not constitute a defamation or invasion of the rights of privacy or
publicity of any kind of any third party, (ii) any applicable law, regulation or
non-proprietary third-party right. Xxxxxx.xxx further represents and warrants
for the benefit of Sponsor that the xxxxxx.xxx Marks do not contain any material
which is unlawful, harmful, abusive, hateful, obscene, threatening or
defamatory, and xxxxxx.xxx has the right to license the xxxxxx.xxx Marks,
including the Dr. C. Xxxxxxx Xxxx name (to the extent licensed under this
Agreement), in accordance with the terms of this Agreement.
6.3. Indemnification. Each party hereby agrees to indemnify and hold
harmless the other party and its subsidiaries and affiliates, and their
respective directors, officers, employees, agents, shareholders, partners,
members and other owners, against any and all claims, actions, demands,
liabilities, losses, damages, judgments, settlements, costs and expenses
(including reasonable attorneys' fees) (any or all of the foregoing hereinafter
referred to as "Losses") insofar as such Losses (or actions in respect thereof)
arise out of or are based on (i) the breach of any representation or warranty
set forth in Articles 4, 5 or 6, (ii) any breach by it of the licenses granted
by it hereunder; (iii) the use by it of any trademarks or Content other than in
accordance with the terms hereof; (iv) any and all product liability claims
arising from this Agreement; and (v) the development, operation, maintenance and
Content (as defined below) of its Site. For purposes herein, "Content" shall
mean, with respect to each party, the proprietary content delivered by such
party to the other party pursuant to this Agreement, including, Sponsor
Advertising Content, but only to the extent that such content is not altered by
the receiving party, and the proprietary content contained on such party's Site,
and shall include only that content created by such party, its employees or
other persons contractually bound to such party to create such content. The
foregoing obligations are contingent upon the indemnified party: (i) promptly
notifying the indemnifying party of any claim, suit, or proceeding for which
indemnity is claimed; (ii) cooperating reasonably with the indemnifying party at
the latter's expense; and (iii) allowing the indemnifying party to control the
defense or settlement thereof. The indemnified
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party will have the right to participate in any defense of a claim and/or to be
represented by counsel of its own choosing at its own expense.
ARTICLE VII.
LIMITATION OF LIABILITY
7.1. Warranty. Xxxxxx.xxx will use commercially reasonable efforts to
maintain the xxxxxx.xxx Website available and display the Sponsor Advertising
Content twenty four hours per day each day during the term of the Agreement.
Xxxxxx.xxx shall install and maintain a commercially acceptable system of
collecting information about impressions and other data relating to the use of
the Sponsor Advertising Content. Xxxxxx.xxx warrants to Sponsor that it will
make reasonable effort to perform under this agreement in a competent manner.
***
7.2. Disclaimer. Each party will be solely responsible for the
development, operation and maintenance of its Site and for all materials that
appear on its Site. Such responsibilities include, but are not limited to: (i)
the technical operation of its Site and all related equipment; (ii) the accuracy
and appropriateness of materials posted on its Site; (iii) for ensuring that
materials posted on its Site do not violate any law, rule or regulation,
including all FDA requirements, or infringe upon the rights of any third party
(including, for example, copyright, trademarks, privacy or other personal or
proprietary rights); and (iv) for ensuring that materials posted on its Site are
not libelous or otherwise illegal. Each party disclaims all liability for all
such matters with respect to the other party's Site. Except for the foregoing,
or as otherwise specifically set forth in this Agreement, neither party makes
any representations, warranties or guarantees of any kind, either express or
implied (including, without limitation, any warranties of merchantability or
fitness for a particular purpose), with respect to their respective Sites, or
the functionality, performance or results of use thereof, or otherwise in
connection with this Agreement.
7.3. Exclusion Of Warranty. EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT, NEITHER PARTY MAKES ANY WARRANTY TO THE OTHER PARTY IN CONNECTION
WITH THE SUBJECT MATTER OF THIS AGREEMENT AND EACH PARTY HEREBY DISCLAIMS ANY
AND ALL WARRANTIES WITH REGARD TO ITS SITE AND SERVICES, EXPRESS OR IMPLIED,
INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF NONINFRINGEMENT AND THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN
PARTICULAR, AND NOT BY WAY OF LIMITATION, NEITHER PARTY WARRANTS THAT ITS SITE
WILL OPERATE ERROR-FREE OR WITHOUT INTERRUPTION.
__________________________
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
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7.4. Damages. EXCEPT AS SET FORTH IN SECTION 6.3, IN NO EVENT SHALL
EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL
OR PUNITIVE DAMAGES ARISING OUT OF THIS AGREEMENT OR ITS TERMINATION, WHETHER
LIABILITY IS ASSERTED IN CONTRACT, TORT (INCLUDING NEGLIGENCE) STRICT LIABILITY
OR OTHERWISE AND IRRESPECTIVE OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF ANY SUCH LOSS OR DAMAGE.***
ARTICLE VIII.
TERM AND TERMINATION
8.1. Term; Termination.
8.1.1. The initial term (the "Initial Term"; and together with all
extensions and renewals, the "Term") will begin on the date set forth above and
expire on the one year anniversary of the date (the "Launch Date") on which: (i)
each of the Sponsor Areas of the xxxxxx.xxx Website are operational in
accordance with the terms of this Agreement (other than the e-commerce tile
placements); and (ii) the links to the Sponsor Website or Vitamin Buzz contained
in the Sponsor logos or the Sponsor banner advertisements are established in
accordance with the terms of this Agreement, subject to earlier termination as
set forth in this Agreement. If the Launch Date has not occurred by August 31,
1999, Sponsor shall, in its sole discretion, be entitled to terminate this
Agreement without any liability and receive a full refund of all amounts paid by
Sponsor to xxxxxx.xxx pursuant to this Agreement prior to the date of such
termination.
8.1.2. On the 95/th/ day prior to the expiration of the initial
Term, xxxxxx.xxx shall deliver a written notice to Sponsor to notify Sponsor of
the commencement of the extension negotiation period. Between the 90/th/ and
60/th/ day prior to the expiration of the initial Term, xxxxxx.xxx and Sponsor
shall in good faith negotiate to extend the term of this Agreement. If by the
30th day prior to the expiration of the initial Term, xxxxxx.xxx and Sponsor
shall have not agreed on mutually agreeable terms for an extension of the Term
of this Agreement, xxxxxx.xxx may commence negotiations with third parties with
respect to the sponsorship of the Sponsor Areas, provided, that prior to
entering into any agreement with any third party regarding the sponsorship of
the Sponsor Areas, xxxxxx.xxx must notify Sponsor in writing of the material
terms of such third party agreement ("Third Party Terms"), and Sponsor shall
have two business days from the receipt of such notice to notify xxxxxx.xxx that
Sponsor will accept such Third Party Terms, in which case xxxxxx.xxx and Sponsor
shall enter into an agreement for the extension of the Term on substantially the
terms set forth in the Third Party Terms. If Sponsor
__________________________
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
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does not respond to xxxxxx.xxx within such two business day period, then on or
after the next succeeding business day, xxxxxx.xxx may enter into an agreement
with such third party substantially upon the terms of the Third Party Terms.
8.2. Termination For Tobacco Industry Affiliation. Upon commencing any
activities relating to Tobacco Industry Affiliation (as defined in Section 6.1),
Sponsor shall promptly notify xxxxxx.xxx of its intent to undertake Tobacco
Industry Affiliation. Upon receipt of such notice or upon learning of any such
Tobacco Industry Affiliation from a third party, xxxxxx.xxx shall have the right
to terminate this Agreement immediately on written notice to Sponsor without
liability of any kind.
8.3. Termination For Garnishment. ***. Additionally, in the event that
either party undertakes any action or fails to undertake any action, which the
other party reasonably believes tarnishes the high quality of its name or
trademarks, including, with respect to xxxxxx.xxx, the "Xx. Xxxx" name, the
other party shall have the right to terminate this agreement upon ten (10) days'
written notice to the other party, provided that such action or inaction is not
cured to the reasonable satisfaction of the terminating party within such ten
day period.
8.4. Termination For Cause. Either party may terminate this Agreement
upon thirty (30) days' written notice of a breach by the other party, provided
such breach is not cured within such thirty-day period.
8.5. Termination By Insolvency. Either party may terminate this Agreement
by providing written notice to the other party if the other party ceases to
function as a going concern, becomes insolvent, makes an assignment for the
benefit of creditors, files a petition in bankruptcy, permits a petition in
bankruptcy to be filed against it, or admits in writing its inability to pay its
debts as they mature, or if a receiver is appointed for a substantial part of
its assets.
8.6. Survival. The following Sections shall survive termination of this
Agreement: Article 5 (Confidentiality), Article 6 (Representations, Warranties
and Indemnification), Article 7 (Limitation of Liability), and Article 9
(General).
__________________________
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
12
ARTICLE IX
GENERAL
9.1. Publicity. Except as may be required by applicable laws and
regulations or a court of competent jurisdiction, or as required to meet credit
and financing arrangements, or as required or appropriate in the reasonable
judgment of either party to satisfy the disclosure requirements of an applicable
securities law or regulation or any applicable accounting standard, neither
party shall make any public release respecting this Agreement and the terms
hereof without the prior consent of the other party.
9.2. Arbitration. Any and all disputes, controversies and claims arising
out of or relating to this Agreement or concerning the respective rights or
obligations of the parties hereto shall be settled and determined by arbitration
in the defending parties home forum before one (1) arbitrator pursuant to the
Commercial Rules then in effect of the American Arbitration Association. Each
party shall have no longer than three (3) days to present its position. Judgment
upon the award rendered may be entered in any court having jurisdiction or
application may be made to such court for a judicial acceptance of the award and
an order of enforcement. The parties agree that the arbitrators shall have the
power to award damages, injunctive relief and reasonable attorneys' fees and
expenses to any party in such arbitration.
9.3. Assignment. Neither party may assign this Agreement, in whole or in
part, without the other party's written consent, which consent will not be
unreasonably withheld, except that: (a) a party's rights and obligation
hereunder may be transferred to a successor of all or substantially all of the
business and assets of the party regardless of how the transaction or series of
related transactions is structured, provided, that the successor party agrees to
be bound by all of the terms and conditions of this Agreement; and (b) Sponsor
may assign its rights and obligations under this Agreement to any entity (i)
which operates the Sponsor Website and (ii) which agrees to bound by all of the
terms and conditions of this Agreement.
9.4. Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of Delaware, but without giving effect to
its laws or rules relating to conflicts of laws.
9.5. Notice. All notices, statements and reports required or permitted by
this Agreement shall be in writing and deemed to have been effectively given and
received: (i) five (5) business days after the date of mailing if sent by
registered or certified U.S. mail, postage prepaid, with return receipt
requested; (ii) when transmitted if sent by facsimile, provided a confirmation
of transmission is produced by the sending machine and a copy of such facsimile
is promptly sent by another means specified in this section; or (iii) when
delivered if delivered personally or sent by express courier service. Notices
shall be addressed as follows:
For xxxxxx.xxx: For Sponsor:
xxxxxx.xxx. Vitamin Shoppe Industries, Inc.
Personal Medical Records, Inc. 0000 Xxxxxxxx Xxxxxx
0000 Xxxxxxxx Xxxx Xxxxx Xxxxx Xxxxxx, Xxx Xxxxxx 00000
13
Xxxxxx, XX 00000 Attn: Xx. Xxxxxx Xxxxxxxxx
Attn: Chief Financial Officer Fax: 000-000-0000
Fax: 000-000-0000 Email: xxxxx@xxxxxxxxxxxxx.xxx
Email: xxxxxx@xxxxxx.xxx
With a copy to:
H. Xxxxx Xxxxxxx
Xxxxxxxx Xxxxxxxxx Xxxxxx
Aronsohn & Xxxxxx LLP
1290 Avenue of the Xxxxxxxx
00/xx/ Xxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
Email: xxxxxxx@xxxxx.xxx
Either party may change its address for the purpose of this paragraph by notice
given pursuant to this paragraph
9.6. 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.
9.7. Severability. In the event that any of the provisions of this
Agreement are held to be unenforceable by a court or arbitrator, the remaining
portions of the Agreement will remain in full force and effect.
9.8. Entire Agreement. This Agreement is the complete and exclusive
agreement between the parties with respect to the subject matter hereof,
superseding any prior 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.
9.9. Counterparts. This Agreement may be signed in counterparts which,
when signed, shall constitute one document.
14
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
xxxxxx.xxx, inc.
By:___________________________________
Name:
Title:
VITAMIN SHOPPE INDUSTRIES, INC.
By:___________________________________
Name:
Title:
15
SCHEDULE 1.2(I)
Screen Shot Mock-Ups
[ATTACHED]
EXHIBIT A
***
__________________________
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
EXHIBIT B
Form of Healthlinks Agreement
[ATTACHED]
EXHIBIT C
Advertising Specifications
File Formats
Naming Convention: (lowercase only, 8.3)
Alternate Text: Use ALT tag; ten words or less
Image Dimensions :
Sponsor Banner: 468 pixels by 60 pixels, 234 pixels by 60 pixels, 120 pixels
by 60 pixels
Image File Format: [GIF/JPEG]
Image File Size: 12 k maximum file size
File Names:Use Sponsor name.: [Sponsor].gif]
Delivery of GIFs
Email - xxxxxx@xxxxxx.xxx.xxx, cc: xxxxxx@xxxxxx.xxx.xxx
We accept [,CompactPro, zip, gzip, and UNIX tar or compress] format tiles. All
formats must be mailed in [ASCII encoding(uuencode, mmencode)].
EXHIBIT D
xxxxxx.xxx corporate logo
[LOGO ATTACHED]
"The Vitamin Shoppe is the proud exclusive vitamin sponsor of xxxxxx.xxx."
"The Vitamin Shoppe is a proud sponsor of xxxxxx.xxx, the Trusted health
Network, led by Dr. C. Xxxxxxx Xxxx."
The Vitamin Shoppe is a proud sponsor of xxxxxx.xxx, the Trusted Health Network,
led by Dr. Ce. Xxxxxxx Xxxx
