EXHIBIT 10.8
December 22 1999
Xx. Xxxxx Xxxxxx
eDiets, Inc..
0000 Xxxxxxxxx Xxxx.
Xxxxxxxxx Xxxxx, XX 00000
RE: LETTER OF AGREEMENT
Dear Xx. Xxxxxx:
This Letter of Agreement shall serve as an agreement (the "Agreement")
between iVillage Inc. ("iVillage") and eDiets, Inc. ("eDiets") and shall be
effective as of the first date set forth above (the "Effective Date").
1. IVILLAGE'S AND MUTUAL OBLIGATIONS. During the term of this Agreement, and in
connection with iVillage's existing U.S. English language version Web sites (the
"iVillage Network"), iVillage shall perform the following:
A. Deliver to eDiets a minimum of twenty-nine million five-hundred
thousand and eight (29,500,008) Impressions in the form of advertising banners.
eDiets retains the right to adjust delivery of said impressions to include some
combination of banners, buttons, "Don't Miss" boxes and newsletter impressions
as mutually agreed by the parties and subject to available inventory. Targeting
of said impressions to be as follows:
(i) a minimum of eight million four hundred thousand (8,400,000)
Impressions, to be delivered over the Term of this Agreement
at a rate of seven hundred thousand (700,000) Impressions per
month, to be delivered within the iVillage Diet Channel, which
shall all link directly to the eDiets Web Site located at
xxx.xxxxxx.xxx (the "eDiets Web Site") or another location to
be mutually agreed upon by both parties;
(ii) a minimum of four million two hundred thousand (4,200,000)
Impressions, to be delivered over the Term of this Agreement
at a rate of three hundred and fifty thousand (350,000)
Impressions per month, to be delivered within the iVillage
allHealth Channel which shall all link directly to the eDiets
Web Site or another location to be mutually agreed upon by
both parties;
(iii) a minimum of sixteen million nine hundred thousand four
hundred and eight (16,400,008) Impressions, to be delivered
over the Term of this Agreement at a rate of one million four
hundred and eight thousand three hundred and thirty-four
(1,408,334) Impressions per month, to be delivered throughout
the iVillage Network which shall all link directly to the
eDiets Web Site or another location to be mutually agreed upon
by both parties.
(iv) In the event that iVillage is unable to deliver ninety percent
(90%) of the guaranteed monthly amount, iVillage will have
sixty (60) days to deliver the shortfall or iVillage will be
considered in material breach of the Agreement. If iVillage is
considered in material breach of the Agreement, eDiets may
either elect to terminate the Agreement or extend the
Agreement over a mutually agreed to period of time ("Make
Good" Period) in order to receive the originally guaranteed
delivered Impressions. Should eDiets elect to terminate the
Agreement, iVillage shall reimburse eDiets, within thirty (30)
days of the date of termination, for all Impressions paid for
and not delivered as of the date of termination. iVillage
agrees that, if eDiets elects to extend the Agreement for a
Make Good Period, then the monthly fee due for the months
subsequent to when eDiets has elected to extend the Agreement
will be recalculated and reduced to reflect the changes in
delivery schedule.
B. MEMBER OFFER PROGRAM. Over and above the Impressions delivered
pursuant to Section 1(A), iVillage shall deliver to eDiets during the Term of
this Agreement no less than twenty-five million (25,000,000) additional
impressions as a part of the following Member Offer Program:
(i) With regard to timing, said additional Impressions will be
delivered as mutually agreed by the parties. Said Impressions
will be delivered in the form of a rotating iVillage Network
Button (a 120x60 pixel graphic button located in the top right
corner of standard iVillage pages) which will also be a
hyperlink to an exact location to be agreed by the parties.
Design, style, format, content and all other aspects of said
rotating network button must be approved by iVillage, which
approval shall not be unreasonably withheld. The exact
schedule for delivery of said Impressions shall be subject to
the availability of iVillage Network Button inventory and
within the discretion of iVillage.
(ii) eDiets, in cooperation with iVillage, will use said additional
Impressions delivered via the iVillage Network Button to
promote a discount offer to iVillage members off of any diet
program offered by eDiets. This member offer will be presented
and membership authentication accomplished as determined by
iVillage and in a manner similar to that used in the iVillage
home page retail program. Although it is understood that the
price of an eDiets program may vary during the term of this
Agreement, in no case, unless otherwise agreed to by the
parties, can the value of this discount to the iVillage member
be less than fifteen dollars ($15). In addition, eDiets also
agrees to pay iVillage a cost per acquisition for each eDiets
program purchased pursuant to the use of said Network Button
and discount offer, to be paid within thirty (30) days from
the end of each month in which said new eDiets membership or
eDiets program is purchased from eDiets. Although it is
understood that the price of an eDiets program may vary during
the term of this Agreement, in no case, unless otherwise
agreed to by the parties, can the value of this cost per
acquisition component be less than ten dollars ($10).
(iii) eDiets may opt not to move ahead with this member offer
program if the parties are unable to agree on a structure that
is economically viable for eDiets.
C. BONUS INVENTORY ON AOL. iVillage shall offer to eDiets all iVillage
advertising inventory available on the iVillage Never Say Diet section that
appears on America Online ("AOL") during the Term of this Agreement, so long as
such section appears on AOL, at no charge. Said rights granted to eDiets under
this Section 1(C) of this Agreement shall be subject to the existence of the
Never Say Diet section on AOL, which may not appear on AOL throughout the Term
of this Agreement. This Section 1(C) shall also be subject to any decision by
iVillage, without notice and within its sole discretion, to retain or terminate
said Never Say Diet section on AOL.
D. SPONSORSHIP. eDiets shall be one of no more than five (5) sponsors
of the Interactive Diet Planner which shall be located within the iVillage Diet
& Fitness Channel. Said sponsorship will consist of an eDiets logo or graphic,
no larger than 120x90 pixels, to be rotated equally among said sponsors on the
Diet Planner Web page. Such logo or graphic will also be a hyperlink to the
eDiets Web site or other such location to be determined by the parties. eDiets
will compensate iVillage with 50% of all revenue generated by sales resulting
from this link.
E. SHOPPING CHANNEL INTEGRATION. iVillage shall include an eDiets logo,
which shall also be a hyperlink to the eDiets Web site, to be rotated equally
amongst other third party logos, and a permanent text link which shall also be
hyperlink to the eDiets Web site, within the Health and Sports section currently
located at xxx.xxxxxxxx.xxx/xxxxxxxx/xxxxxxxxxx/xxxxxx_xxxxxx/.
2. EDIETS'S OBLIGATIONS:
A. GENERAL OBLIGATIONS. In conjunction with the parties' mutually
agreed upon deliverable schedule, eDiets shall provide iVillage with those
elements needed to support eDiets presence on the iVillage Network. eDiets shall
promptly notify iVillage of any deficiencies in such submissions, if any, within
a mutually agreed upon deadline. eDiets acknowledges that any delay in providing
its approvals or deliverables to iVillage affects the timely implementation of
its presence within the iVillage Network.
B. NEWSLETTER INCENTIVE PROGRAM. eDiets, at its discretion, shall
integrate a tool to allow eDiets members and visitors to sign up, on an "opt in"
basis, into receiving the iVillage Diet & Fitness Newsletter. All aspects of the
design, functionality and placement of this tool, including all aspects of the
presentation of said offer to receive said Newsletter, is subject to the
approval and solely within the discretion of iVillage. For every eDiets visitor
that opts to receive said iVillage Newsletter through said tool with a valid
e-mail address, eDiets shall be credited with fifteen (15) additional Run of
Network impressions at no additional charge. (By way of example, should eDiets
provide iVillage with ten thousand (10,000) valid e-mail addresses via said
opt-in tool eDiets will receive one hundred fifty thousand (150,000) additional
Run of Network impressions at no cost.)
3. COMPENSATION.
A. eDiets shall pay to iVillage upon execution of this Agreement an
up-front, non-refundable, non-recoupable production and set up fee in the amount
of One Hundred Thousand Dollars ($100,000.0). In addition, eDiets shall pay
iVillage an additional Nine Hundred and Ninety One Thousand Five Hundred Dollars
($991,500), for a total of $1,091,500, to be paid in twelve equal monthly
payments of Eighty Two Thousand Six hundred and Twenty Five Dollars ($82,625.00)
each, due on or before the first day of each month, beginning January 1, 2000.
B. To the extent any of the above mentioned fees are accrued but not
yet paid to iVillage as of the termination or expiration of this Agreement, this
Section 3 shall survive any such termination or expiration of this Agreement
until such time as the payment for fees accrued has been fully satisfied.
C. All payments made via wire transfer should be directed as follows:
Chase Manhattan Bank, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000; Account name:
iVillage Inc.; ABA#: 000000000; Account #: 020-923406; Reference: eDiets. All
payments made via check,
should be sent to: iVillage Inc., 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000;
Attention: Accounts Receivable.
4. TERM AND TERMINATION.
A. The term of this Agreement will extend for a period of one (1) year
and commencing on the January 1, 2000 and to run until December 31, 2000 (the
"Term") unless terminated earlier as set forth herein.
B. In the event of a material breach by either party of any term of
this Agreement, the non-breaching party may terminate this Agreement by written
notice to the breaching party if the breaching party fails to cure such material
breach within thirty (30) days of receipt of written notice thereof. In
addition, either party may terminate this Agreement effective upon written
notice stating its intention to terminate in the event the other party (i)
ceases to function as a going concern or to conduct operations in the normal
course of business, or (ii) has a petition filed by or against it under any
state or federal bankruptcy or insolvency law which petition has not been
dismissed or set aside within ninety (90) days of its filing.
C. Each right, duty, obligation and cause of action which by its nature
should survive the termination or expiration of this Agreement, will survive the
termination of this agreement, including but not limited to, Section 3 as to
fees accrued but unpaid, Section 11, 12, 13 and 14.
5. OWNERSHIP. All intellectual or proprietary property and/or information, of
any nature whatsoever, which has been supplied or developed by either Party (the
"Intellectual Property") is and will remain the sole and exclusive property of
the party who supplied or developed same, regardless of where the Intellectual
Property resides. Upon termination of this Agreement and upon written request,
the party in receipt of the requesting party's Intellectual Property as a result
of this Agreement will immediately return such information to the requesting
party.
6. LICENSES. eDiets grants to iVillage, during the term of this Agreement, a
royalty-free, non-exclusive, worldwide license to use, reproduce, display,
distribute, perform and produce (i) eDiets's tradenames, trademarks, service
marks and logos (collectively, the "eDiets Marks") to support the development,
promotion and marketing of eDiets within the iVillage Network and the eDiets
Products and Services as contemplated by this Agreement. Except as set forth
herein, no right, title, license, or interest in any eDiets Marks owned by
eDiets or any of its affiliates is intended to be given to or acquired by
iVillage by the execution of or the performance of this Agreement. iVillage
shall not use the eDiets Marks for any purpose or activity except as expressly
authorized or contemplated herein. iVillage acknowledges that eDiets is the sole
and exclusive owner of all trademarks, service marks, copyrights and other
intellectual property of any kind in the eDiets Marks. iVillage agrees that (i)
it shall do nothing inconsistent with such ownership either during the term of
the Agreement or afterwards; (ii) it shall use the eDiets Marks in a manner that
does not deviate from eDiets'rights in the eDiets Marks; and (iii) it shall take
no action that shall interfere with or diminish eDiets' right in the eDiets
Marks.
7. INABILITY TO MUTUALLY AGREE/DETERMINE. In connection with any element of the
implementation of the sponsorship which, in accordance with the terms of this
Agreement, is to be determined by the mutual agreement of the parties, if such
an agreement cannot be reached within a reasonable period of time, iVillage
shall make a commercially reasonable decision to implement the terms hereof.
8. SUBMISSIONS. As appropriate, iVillage must receive all eDiets submissions at
least 5 business days prior to the scheduled date of publication for each
relevant graphic (GIF) file, or file of such other format as iVillage may
designate from time to time, supplied by eDiets to be published by iVillage on
the iVillage Network and which may contain a link to eDiets's Web site or to a
Web site specified by eDiets or any and all information and items necessary for
iVillage's publication of any material supplied by eDiets, including changes and
updates thereto (collectively, "eDiets Submissions" and each, a "eDiets
Submission"). In the event iVillage does not receive an eDiets Submission prior
to the applicable deadline, iVillage may publish in substitution any prior
eDiets Submission until such time as iVillage can reasonably begin publication
of the promotion. If no such prior eDiets Submission is available, iVillage may
publish in substitution, any material it deems appropriate, in its sole
discretion, until such time as iVillage can reasonably begin publication of the
promotion. All changes to and/or cancellations of eDiets Submissions must be
made in writing, with an e-mail copy sent to xxx@xxxx.xxxxxxxx.xxx, and received
by iVillage prior to the applicable deadline. iVillage may, in its sole
discretion, refuse at any time and for any reason, any eDiets Submission and/or
publish any advertisement provided by eDiets.
9. REPORTS AND TRACKING.
A. iVillage shall provide eDiets with a user name and password to
access online reporting through DART (Doubleclick) or other similar service. Any
customization of reports requested by eDiets or its agent or representative
shall be subject to a reasonable charge as determined by iVillage. In addition,
during the term of this Agreement, iVillage shall provide eDiets with mutually
agreed upon statistics regarding the Co-Branded Area, including traffic thereon,
in accordance with iVillage's standard reporting formats.
B. In the event a third party advertisement serving and measurement
company ("Ad Server") is used and the iVillage report indicates a number of
impressions delivered that is greater than the Ad Server report, then the number
of impressions indicated by iVillage's report will be deemed the determinative
number of impressions delivered during the reporting period for purposes of the
duties and obligations of this Agreement.
10. PUBLICITY. If so desired, iVillage and eDiets may mutually agree to work
together to draft a press release. The press release and any quotes from each
party's sources must be approved by the public relations department of the other
party (unless otherwise required to be disclosed to a government or
administrative agency), which also must be made aware of any pre-briefings with
outside parties at least 5 days in advance of any pre-briefing. Notwithstanding
the foregoing, this Section shall not restrict with either party from complying
with any governmental or administrative order or requirement.
11. REPRESENTATIONS, WARRANTIES AND INDEMNIFICATION.
A. iVillage represents and warrants that: (i) it is authorized to do
business under the rules of the state in which it is incorporated; (ii) it is
authorized to enter into this Agreement and to perform its obligations; (iii) it
has all required permits, licenses, and other governmental authorizations and
approvals; (iv) the services to be provided will be performed in a professional
manner; and (v) to the best of iVillage's knowledge the services to be performed
and the materials provided by it (a) do not infringe or violate any patent,
copyright, trade secret, trademark, or other proprietary right of any third
party, (b) do not violate any applicable law, statute, ordinance or regulation;
(c) are not knowingly defamatory or libelous; (d) are not lewd,
pornographic or obscene; (e) do not knowingly violate any laws regarding unfair
competition, antidiscrimination or false advertising; (f) are year 2000
compliant and do not promote violence or contain hate speech; and (g) do not
knowingly contain viruses, trojan horses, worms, time bombs, cancelbots or other
similar harmful or deleterious programming routines.
B. eDiets represents and warrants that: (i) it is authorized to do
business under the rules of the state in which it is incorporated; (ii) it is
authorized to enter into this Agreement and to perform its obligations; (iii) it
has all required permits, licenses, and other governmental authorizations and
approvals; (iv) the services to be provided will be performed in a professional
manner; (v) any premium rates published on the Co-Branded Area are accurate;
(vi) the eDiets presence on the iVillage Network shall, during the term of this
Agreement, satisfies all applicable regulatory requirement; (vii) eDiets is
authorized to provide the eDiets Products and Services in the jurisdictions
applicable to this Agreement; (viii) it has the technical and operational
capacity to count and track, and will count and track the number of leads
generated pursuant to this Agreement; and (ix) the services to be performed and
the materials provided by it (a) do not infringe or violate any patent,
copyright, trade secret, trademark, or other proprietary right of any third
party, (b) do not violate any applicable law, statute, ordinance or regulation;
(c) are not knowingly defamatory or libelous; (d) are not lewd, pornographic or
obscene; (e) do not knowingly violate any laws regarding unfair competition,
antidiscrimination or false advertising; (f) do not promote violence or contain
hate speech; and (g) is year 2000 compliant, does not knowingly contain viruses,
trojan horses, worms, time bombs, cancelbots or other similar harmful or
deleterious programming routines.
C. INDEMNIFICATION/THIRD PARTY CLAIMS: Each party ("Indemnitor") will
defend, at its expense, and will pay the cost and damages of a settlement or
award resulting from any claim brought against the other ("Respondent") by any
third party that (a) related to a breach of representation or a warranty, (b) in
any way relates to the independent business relationship that Indemnitor may
have with the claimant, or (c) alleges infringement of any Untied States patent,
trademark, copyright or trade secret that relates solely to the Indemnitor's Web
sites or the content thereon conveyed under this Agreement, except where, in
each case, (i) through (iii), the claim arises out of or results from
modifications made by, or combinations with content, products or services
provided by Respondent or others, or, use of content, or Intellectual Property
to violation of this Agreement, but only if Respondent in each case (a) through
(c), (i) promptly notifies the Indemnitor in writing of the claim, (ii) gives
the Indemnitor all requested information that the Respondent has concerning the
claim, (iii) reasonably cooperates with and assists the Indemnitor in defending
the claim at the Indemnitor's expense; and (iv) gives the Indemnitor sole
authority to defend or settle the claim (however, Indemnitor will not have the
authority to obligate the Respondent in any way or to compromise any of
Respondent's right in connection with the defense or settlement). Respondent may
participate in the defense of the claim at its expense, or choose to handle the
defense of the claim directly, but only through council of its choosing.
12. CONFIDENTIALITY. Other than as required or appropriate for securities laws
disclosure, iVillage and eDiets agree to keep in confidence, all Confidential
Information. Confidential Information means (a) any material non-public
information, communication or data, in any form, of the other party and (b)
eDiets-branded advertisements and promotional elements prior to publication. All
Confidential Information shall remain the sole property of the disclosing party
and its confidentiality shall be maintained and protected by the receiving party
with at least the same degree of care as the receiving party uses for the
protection of its own confidential and
proprietary information. The receiving party shall not disclose such
Confidential Information to any third party. These restrictions shall not apply
to any Confidential Information: (v) after it has become generally available to
the public without breach of this Agreement by the receiving party; (w) is
rightfully in the receiving party's possession before disclosure to it by the
disclosing party; (x) is independently developed by the receiving party; (y) is
rightfully received by the receiving party from a third party without a duty of
confidentiality; or (z) is required to be disclosed under operation of law or
administrative process. Upon expiration or termination of this Agreement for any
reason, eDiets will promptly and at the direction of iVillage, either destroy or
return to iVillage, and will not take or use, all items of any nature which
belong to iVillage and all records (in any form, format or medium) containing or
relating to Confidential Information.
13. LIMITATION OF LIABILITY. NEITHER PARTY SHALL HAVE ANY LIABILITY FOR ANY
INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT
LIMITATION, LOSS OF PROFIT OR BUSINESS OPPORTUNITIES, WHETHER OR NOT THE PARTY
WAS ADVISED OF THE POSSIBILITY OF SUCH. EXCEPT AS EXPRESSLY SET FORTH HEREIN,
NEITHER PARTY MAKES ANY, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS ANY
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SERVICES
CONTEMPLATED BY THIS AGREEMENT, INCLUDING ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES
ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. FURTHERMORE, EXCEPT AS
SPECIFICALLY PROVIDED FOR HEREIN, NEITHER PARTY IS LIABLE TO THE OTHER PARTY FOR
ANY REASON OR UPON ANY AND ALL CLAIMS AND CAUSES OF ACTION IN THE AGGREGATE, IN
CONTRACT, TORT OR OTHERWISE, ARISING IN A CALENDAR YEAR, EXCEPT FOR THOSE
RESULTING FROM SECTIONS 11(A)(v) AND 11 (B)(ix), IN AN AMOUNT NOT TO EXCEED THE
FEES RECEIVED BY IVILLAGE IN A CALANDER YEAR, OR LESS, AS A RESULT OF THE TERMS
OF THIS AGREEMENT.
14. MISCELLANEOUS PROVISIONS. Nothing in this Agreement shall imply any
partnership, joint venture or agency relationship between the parties and
neither party shall have the power to obligate or bind the other except as
expressly set forth in this Agreement. Commencing on the tenth day after the
date that each of the aforementioned payments are due, xXxxxx.xxx shall be
liable for a monthly rate of interest of not more than 1 1/2%, which interest
shall be in addition to such fees due and owing to iVillage. Except as otherwise
expressly provided in this Agreement, neither party will be deemed to be in
default of or to have breached any provision of this Agreement or for any delay
or failure of performance or interruption of service resulting from any acts of
God, acts of civil or military authorities, civil disturbances, wars, strikes or
other labor disputes, fires, transportation contingencies, interruptions in
telecommunications or Internet services or network provider services, failure of
equipment and/or software, other catastrophes or any other occurrences which are
beyond such party's reasonable control. This Agreement, including the Schedules
hereto, sets forth the entire agreement between the Parties on this subject and
supersedes all prior negotiations, understandings and agreements between the
Parties concerning the subject matter. No amendment or modification of this
Agreement shall be made except by a writing signed by the Party to be bound
thereby or the successor or assign of such Party. The rights granted under this
Agreement to eDiets shall be applicable to iVillage existing Web sites and shall
not apply to any future acquisition by iVillage of Web sites or content, joint
ventures or similar business combinations. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York without
reference to its
conflicts of laws provisions. Jurisdiction for litigation of any dispute,
controversy or claim arising out of or in connection with this Agreement, shall
be only in a federal or state court having subject matter jurisdiction located
in New York County, New York. This Agreement may not be modified or altered
except by a written instrument signed by the party to be charged. No waiver of
any term or condition of this Agreement, or of any breach of this Agreement or
any portion thereof, shall be deemed a waiver of any other term, condition or
breach of this Agreement or any portion thereof. In connection with any element
of the implementation of the sponsorship which, in accordance with the terms of
this Agreement, is to be determined by the mutual agreement of the parties, if
such an agreement cannot be reached within a reasonable period of time, iVillage
shall make a commercially reasonable decision to implement the terms hereof.
This Agreement shall be binding on the successors or assigns of eDiets,
and the successors, assigns and authors of iVillage, but no assignment by either
party shall be made without prior written consent of the other party, which
shall not be unreasonably withheld or delayed. The section headings contained in
this Agreement are for reference purposes only and shall not in any way affect
the meaning or interpretations of this Agreement. In the event that any
provision of this Agreement conflicts with the law under which this Agreement is
to be construed, or if any such provision is held invalid by a court with
jurisdiction over the parties to this Agreement, such provision shall be deemed
to be restated to reflect as nearly as possible the original intentions of the
parties in accordance with the applicable law, and the remainder of this
Agreement shall remain in full force and effect. There shall be no presumption
for or against either party as a result of such party being the principle
drafter of this Agreement. All notices and requests in connection with this
Agreement shall be deemed given as of the day they are received either by
messenger, delivery service, or in the United States mails, postage prepaid,
certified or registered, return receipt requested, or sent by overnight courier
with charges prepaid and a confirming fax, and shall be delivered to the address
set forth below or to such address as provided for by such party.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first above written.
xXxxxx.xxx, Inc. iVillage Inc.
0000 X. Xxxxxxxxx Xxxxxxxxx 000 Xxxxx Xxxxxx
Xxxxxxxxx Xxxxx, XX 00000 Xxx Xxxx, XX 00000
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
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(NAME) (NAME)
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(TITLE) (TITLE)
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(DATE) (DATE)
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(SIGNATURE)
