Revenue Share Program Agreement - eDiets.com Inc. and eUniverse Inc.
eDiets.com, Inc.
Amended Revenue Share Program Agreement
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This Amended Revenue Share Program Agreement (the "Agreement") is entered
into on March 19, 2001, and effective as of March 19, 2001, between eDiets.com,
Inc. (the "Company") and eUniverse, Inc. (the "Client"). The parties agree that
this Agreement shall be given full force and effect and supercede the January
22, 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:
[______] 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.
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".
eDiets.com, Inc. 3467 West Hillsboro Blvd. * Suite 2 * Deerfield Beach * Florida
33442 Tel: 954.360.9022 * Fax: 954.360.9095
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9. The Client will use commercially reasonable efforts to deliver a
minimum of 1600 new customers to the Company resulting from Client's
initial Customer Contact per month throughout the term of this
Agreement.
10. The Client agrees not to accept advertising in any form from DietSmart
or Weight Watchers during the term of this Agreement.
11. The term of this Agreement will be for a period of one (1) year.
12. 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/ Brett Brewer /s/ Ronald Caporale
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Client Signature Company Signature
Brett Brewer Ronald Caporale
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Print Name Print Name
President EVP Business Development
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Title Title
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eUniverse.com, Inc. eDiets.com, Inc.
2/22/01 2/22/01
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Date Date
eDiets.com, Inc. 3467 West Hillsboro Blvd. * Suite 2 * Deerfield Beach * Florida
33442 Tel: 954.360.9022 * Fax: 954.360.9095