Exhibit 10.3
xXxxxx.xxx, Inc.
Amended Revenue Share Program Agreement
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This Amended Revenue Share Program Agreement (the "Agreement") is
entered into on August 29, 2001, and effective as of August 28, 2002, between
xXxxxx.xxx, Inc. (the "Company") and eUniverse, Inc. (the "Client"). The parties
agree that this Agreement shall be given full force and effect and supercede the
March 19, 2001 agreement, and any other understandings between the parties.
In consideration of the mutual promises set forth herein, the Client
and the Company agree as follows:
1. The Client agrees to display an eDiets ad, graphic or mutually
agreed to content on its website or in e-mail newsletters in
the form of a banner, tile, button, link and/or other graphic
element that is mutually agreed upon (hereinafter "Customer
Contact").
2. The Client agrees not to modify the eDiets' icon, message or
image(s) in any way. The Company reserves all of its rights in
its icon, message, trade names, trademarks and all other
intellectual property rights.
3. The Company agrees to pay the Client a referral fee for each
final sale of an eDiets program offered through the website of
the Client as outlined below. A final sale does not include
any credit card sales that have been declined or cancelled
within the first 10 business days (the "Sale") of the original
sale.
4. The Client will be solely responsible for the development,
operation, and maintenance of its site and for all materials
that appear on its site. The Company disclaims all liability
for these matters. Further, the Client agrees to indemnify and
hold harmless the Company from all claims, damages, and
expenses (including, but not limited to, attorney's fees)
relating to the development, operation, maintenance and
content of the Client's site.
5. The Company reserves the right to visit the Client's website
at anytime and in the event that the Company deems that the
website to be considered unsuitable for the eDiets' program,
the Client will be required to remove the eDiets' ad within
twenty-four (24) hours of verbal or written notice.
6. The Company will pay the Client a cost per acquisition for
each member generated via the Client, based on the following
schedule:
1 -2500 new paying members in a quarter: [______]
2501- 5099 new paying members in a quarter: [______]
5100+ new paying members in a quarter: [______]
for any new member acquisition, whether generated from
Client's initial Customer Contact
[________________________________________________________]. A
final sale does not include any credit card sales that have
been declined or cancelled within the first 10 business days
(the "Sale") of the original sale.
7. The Company will provide the Client with real-time statistics
to track new member acquisitions as they become available. The
Company will provide separate statistics for new members
acquired after Client's initial Customer Contact and for new
members acquired after subsequent Company generated email
newsletters.
8. Payment will be paid net 30 following the end of each calendar
month. Monthly net sales are determined on the 10/th/ day of
the month following. The parties agree that there shall be no
limit to the number of referred members for which the Client
shall be entitled to receive a fee, provided that the members
have been verified as a "final sale".
9. The Client will use commercially reasonable efforts to deliver
a minimum of [_____] new customers to the Company resulting
from Client's initial Customer Contact during each of the
first two months of every quarter throughout the term of this
Agreement.
10. Company agrees to pay for Client's initial Customers from
contact with those same potential customers initiated in
subsequent Company generated e-mail newsletters during the
third month of every quarter throughout the term of this
Agreement.
11. The Client agrees not to accept advertising in any form from
DietSmart or Weight Watchers during the term of this
Agreement.
12. The term of this Agreement will be for a period of one (1)
year.
13. Both parties agree that nothing in this Agreement constitutes
any partnership, joint venture, agency, franchise, sales
representative, or employment relationship between the
parties.
13. Company will indemnify, defend, and hold harmless Client, its
officers, directors, agents and employees from and against any
and all losses, damages, suits, judgments, reasonable costs
and expenses (including reasonable attorneys' fees) arising
out of any claim or cause of action relating to the
performance or non-performance of Company's obligations as set
forth herein, including without limitation any claims or
causes of action relating to the business of Company and the
content of the materials provided by Company pursuant to
Paragraph One (1).
14. Neither Party makes any express or implied warranties or
representations with respect to its business. In addition,
neither party makes any representation that the operation of
its site will be uninterrupted or error-free, and neither will
be liable for the consequences of any interruptions or errors
which are not within the party's reasonable control.
15. The Client acknowledges that it has read this Agreement and
all its terms and conditions as stated herein.
16. This Agreement is governed by the laws of the United States
and the state of Florida, without reference to rules governing
choice of laws. Any action relating to this Agreement must be
brought in the federal or state courts located in Broward
County, Florida, and the Client irrevocably consents to the
jurisdiction of such courts
17. Neither party shall assign this Agreement, by operation of law
or otherwise, without the other's prior written consent.
Subject to that restriction, this Agreement will be binding
on, inure to the benefit of, and enforceable against the
parties and their respective successors and assigns.
AGREED TO:
/s/ Xxxx X. Xxxx /s/ Xxxxxxx Hemp
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Client Signature Company Signature
Xxxx X. Xxxx Xxxxxxx Hemp
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Print Name Print Name
Director, Business Development Director, Business Development
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Title Title
______________________________ ______________________________
xXxxxxxxx.xxx, Inc. xXxxxx.xxx, Inc.
9/28/01 9/26/01
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Date Date
