Licensing Agreement - eDiets.com Inc. and eDirect Inc.
LICENCING AGREEMENT
This Agreement is made the 29th day of August, 2000 (hereinafter
"Effective Date") between eDiets.com, Inc. ("EDIETS"), of 3467 Hillsboro
Boulevard, Suite 2, Deerfield Beach. Florida 33442, and eDirect, Inc.
("EDIRECT"), of 6601 Park of Commerce Boulevard, Boca Raton, Florida 33487.
Whereas, EDIETS collects personal information data ("EDIETS Opt-In
Data") from individuals using an online application; and
Whereas, EDIRECT manages and markets commercial list products; and
Whereas, EDIRECT desires to manage and market the EDIETS Opt-In Data
collected by EDIETS; and
Whereas, EDIETS has employed EDIRECT to manage and market, on an
exclusive basis, the EDIETS Opt-In Data; and
Whereas, EDIETS and EDIRECT have reached an agreement ("Agreement") on
the terms upon which EDIRECT may manage and market the EDIETS Opt-In Data; it is
therefore
AGREED, that, in consideration of the premises and promises set forth
herein, the parties agree as follows:
1. DEFINITIONS
"Opt-In Email" record means, an Email record that was created by subscription at
an Internet site and that all subsequent emails sent to the subscriber provide
the subscriber with an opportunity to opt-out, of future mailings by
electronically requesting to opt-out.
2. TERM
This Agreement shall become effective upon the date of execution of this
Agreement and shall continue in effect. for one (1) year.
3. MAINTENANCE OF DATA
After each email campaign using the: EDIETS Opt-In Data, EDIRECT shall remove
all opt-out records from the EDIETS Opt-In Data received by it during that
campaign. EDIRECT shall provide EDIETS with a copy of the EDIETS Opt-In Data on
a monthly basis less any opt-out records or invalid email addresses. For
emailing purposes, opt-out records shall he removed so the Subscriber does not
receive email offers; however, EDIRECT shall not be responsible for
"unsubscribing" the opt-out record from EDIETS' database used for EDIETS'
primary business.
4. USE OF THE DATABASE
a. EDIRECT may broker the EDIETS Opt-In Data to its customers and
to the end users of its broker customers for use in email
campaigns.
b. EDIRECT shall exclusively represent and market the EDIETS
Opt-In Data.
c. All emails sent in an email campaign using EDIETS Opt-In Data
shall contain a message to the recipient advising him of the
opportunity to opt-out of future emails by electronically
requesting; to opt-out, and a method to electronically
communicate the desire to opt-out shall he given to the
recipient.
d. The EDIETS Opt-In Data will remain on the premises of EDIRECT
at all times and EDIRECT shall fulfill all orders from the
EDIETS Opt-in Data in a commercially expeditious manner
consistent with industry standards.
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e. No data may he enhanced by the EDIRECT Opt-In Data.
f. EDIETS Opt-In Data will not be used in arty email campaign
that advertises, sells or exchanges arty products or services
that involve sexual paraphernalia, drug paraphernalia, adult
films or other media, gambling services, weapons or other
illicit activities, chain letters, pyramid fund raising, or
other similar types of material, and use of the data will
comply with all federal, state, and local regulations.
g. EDIRECT may market the EDIETS Opt-In Data as such, or in the
alternative, as part of EDIRECT's master file.
h. EDIETS shall have the opportunity to approve all copy to be
used in campaigns to the EDIETS Opt-In Data as a "stand-alone"
file, defined as a campaign solely to the EDIETS Opt-In Data
and not to any part of EDIRECT's master file. EDIRECT shall
submit the copy to EDIETS for approval and EDIETS shall have
forty-eight (48) hours to approve or deny the copy. If EDIETS
does not reply within 48 hours, then EDIRECT shall continue
with the campaign as if EDIETS approved the copy to be used.
For any campaign involving any part of EDIRECT's master file,
EDIETS shall not require the opportunity to review copy prior
to the email campaign.
i. Each Subscriber's entail address of the EDIETS Opt-In Data
shall receive a maximum of six (6) email offers, for goods or
services, per month. This number may be modified by EDIETS
upon thirty (30) days written notice to EDIRECT. Any such
modification shall result in a modification of the minimum
revenue requirements outlined in Section, 9(b.) and 9(c.) to
reflect the same percentage adjustment. Additionally, EDIETS
may provide EDIRECT with additional Opt-In records on a
monthly basis. Any such additional records shall result, in a
modification of the minimum revenue requirements outlined in
Sections 9(b.) and 9(c.) to reflect the same percentage
adjustment.
j. EDIRECT shall have sole and exclusive control over the pricing
of all email campaigns.
5. RETENTION OF RIGHTS
EDIRECT acknowledges that it has no right or interest in the EDIETS Opt-In Data
except as expressly provided by this Agreement.
6. PAYMENT
a. EDIRECT shall provide to EDIETS, by the tenth day of each
month, a written usage report of EDIRECT's use of the EDIETS
Opt-In Data during the previous month.
b. EDIRECT shall pay EDIETS usage charges of sixty (60%) percent
of gross revenues generated and collected from the managing
and marketing of the EDIETS' Opt-In Data. The usage charges
shall be calculated at $.13 per record.
c. EDIRECT will pay EDIETS, within thirty (30) days of the end of
the month, the usage charges, for the previous month, from
gross revenues generated and collected during the preceding
month from the managing and marketing of the EDIETS Opt-In
Data.
d. Taxes and Other Charges - EDIETS agrees to pay when due, all
taxes, fees or assessments of whatsoever kind and nature now
or hereafter imposed by any governmental authority upon the
data from the EDIETS Opt-In Data provided by EDIETS hereunder,
or otherwise arising
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out of the transactions contemplated by this Agreement,
excluding any taxes based upon the income of EDIRECT.
e. EDIRECT shall require all new customers to prepay prior to any
entail campaign.
7. REPRESENTATIONS AND WARRANTIES
EDIETS represents and warrants to EDIRECT that:
a. EDIETS has collected and compiled the following EDIETS Opt-In
Data through online surveys of which approximately 1,100,000
online subscribers are interested in receiving offers fur
online products and services.
b. The EDIETS Opt-In Data has been lawfully collected from
consumers on the Internet pursuant to a notice that advised
them that their personal data was being collected and of the
intended uses of the data.
c. EDIETS has conducted its own confirmation process verifying
each subscriber's intention to receive offers for online
products and services.
d. It is the owner of the EDIETS Opt-In Data and it has full
title and rights to licence the EDIETS Opt-In Data.
e. It is not bound by any contract or arrangement of any kind
that conflicts with the terms of this Agreement, specifically,
that EDIRECT shall exclusively manage and market the EDIETS
Opt-In Data.
f. EDIRECT's access to EDIETS Opt-In Data is in accordance with
the express permission of the EDIETS Opt-In Data Subscribers,
does not violate EDIETS' privacy policy or terms of service
for its Subscribers or otherwise violate any Subscriber's
privacy rights.
g. EDIETS understands that due to volume discounts, broker
commissions and agency discounts, the average price pet email
record is $.13 per record ($130/CPM).
8. NO OTHER WARRANTIES
EDIRECT MAKES NO WARRANTY WHATSOEVER AS TO THE EMAIL ADS, EITHER EXPRESS OR
IMPLIED. THE EMAIL ADS ARE PROVIDED BY THIRD PARTY PROVIDERS ON AN "AS IS"
BASIS. EDIRECT EXPRESSLY DISCLAIMS ANY AND ALL, WARRANTIES WHICH COULD BE
IMPLIED IN CONTRACT, IN LAW OR IN EQUITY, INCLUDING, BUT NOT LIMITED TO, ANY
IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
9. TERMINATION
a. Each party has the right to terminate this Agreement immediately upon
the occurrence of any one or more of the following events: (i) if the
other party materially breaches any other material term or provision of
this Agreement which, if capable of remedy, is not remedied within 30
days of written notice requiring remedy of the breach, (ii) or become
insolvent, makes an assignment for the benefit of its creditors, calls
a meeting of the creditors to obtain material greater financial
accommodation, suspends business or commences or has commenced against
it any case or proceeding under any provisions of the Bankruptcy Code.
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b. If, upon the ninetieth (90th) day following the execution of this
Agreement, usage charges payable to EDIETS has not exceeded two hundred
fifty thousand ($250,000) dollars oft any given month based on six (6)
email offers per subscriber per month, then EDIETS shall have the right
to terminate this Agreement upon thirty (30) days written notice to
EDIRECT.
c. If, upon the one hundred eightieth (180th) day following the execution
of this Agreement, usage charges payable to EDIETS has not exceeded
five hundred thousand ($500,000) dollars on any given month based on
six (6) email offers per subscriber per month, then EDIETS shall have
the right to terminate this Agreement upon thirty (30) days written
notice to EDIRECT.
d. In the event that the amount collected during any consecutive ninety
(90) day period is less than eighty (80%) of the total gross revenues
generated, EDIETS shall reserve the right to terminate the agreement
with thirty (30) days written notice.
e. Upon the occurrence of the two hundred tenth (210th) day of the term of
this Agreement, either party may terminate this Agreement upon thirty
(30) days written notice to the other party.
10. EFFECT OF TERMINATION
In the event of termination, cancellation, or expiration of this Agreement,
EDIRECT will cease use of the EDIETS Opt-in Data and return all records in its
possession or under its control.
11. INDEMNIFICATION
EDIETS shall indemnify, defend, and hold harmless EDIRECT from and against any
and all third-party claims, suits, or liabilities (including all reasonable
costs, expenses and attorneys' fees actually paid) arising from or in connection
with (a) EDIETS sale or resale of promotion of, or misrepresentations about the
EDIETS Opt-In Data, (b) EDIETS breach of its obligations, representations, and
warranties under this Agreement, or (c) any allegation that the EDIETS Opt-In
Data infringes, misappropriates or otherwise violates such third party's
Intellectual Property Rights car privacy rights. EDIRECT shall promptly notify
EDIETS in writing of all such claims, provide cooperation and information
reasonably requested by EDIETS and agree to EDIETS' sole control over the
defense and any settlement of such claims.
12. FORCE MAJEURE.
Neither party shall be liable for delays or nonperformance of this Agreement
occasioned by strikes, fires, accidents, or any other causes beyond its'
control, including, but not limited to, lack of availability of materials, fuel
or utilities.
13. NOTICES
Any notice required or permitted to be given under the terms of this Agreement
shall be in writing and delivered (i) by hand; (ii) by certified or registered
mail, postage prepaid, return receipt requested; or (iii) by overnight courier,
as follows:
eDiets.com, inc.
Attn: Angela Dowgus, Marketing Director
3467 Hillsboro Boulevard, Suite 2
Deerfield Beach, FL 33442
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eDirect, Inc.
Attn: Michael Brauser, President
6601 Park of Commerce Boulevard
Boca Raton, FT., 33487
Or to such other address of which either party has given the other written
notice. All notices shall be deemed received on the date of delivery or, if
mailed, on the date of receipt appearing on the return receipt card. Rejection
or other refusal to accept any notice, request or demand or the inability to
deliver the same because of a changed address of which no notice was given, will
be deemed receipt of the notice, request or demand.
14. ASSIGNMENT
The rights or obligations under this Agreement are not assignable by either
party without written consent from the other party.
15. INDEPENDENT CONTRACTORS
The parties are independent contracting entities and there is not partnership or
agency relationship between them.
16. GENERAL PROVISIONS
a. During the term and for a period of two years thereafter, the
parties will each keep strictly confidential all non-public
information provided by the other party during the term
("Confidential Information"), except to the extent required to
be disclosed under applicable law or by a governmental order,
decree, regulation, rule or process (provided that the
receiving party gives written notice to the disclosing party
as far in advance as reasonably possible prior to disclosure
and the receiving party reasonably cooperates in seeking to
dispute such disclosure and/or receive confidential treatment
for the disclosed information). Confidential Information shall
not include information the receiving party can document (i)
was or has become readily publicly available without
restriction through no fault of the receiving party or its
employees or agents; (ii) is received without restriction from
a third party lawfully in possession Of such information and
lawfully empowered to disclose such information; or (iii) was
rightfully in possession of the receiving party without
restriction prior to its disclosure by the other party.
b. The terms and conditions stated herein are the complete and
exclusive statement of the agreement between the parties with
respect to the obtaining of the products or services described
herein. There are no representations, warranties, promises,
covenants or undertakings, between the patties except as
described in this Agreement.
c. If any of the provisions of this Agreement are found to he
invalid under an applicable statute or rule of law, they are
to be enforced to the maximum extent permitted by Law and
beyond such extent are to be deemed omitted from this
Agreement, without affecting; the validity of any other
provision of this Agreement.
d. The headings and captions in this Agreement are for
convenience only and shall he used to construe the meaning of
this Agreement.
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e. This Agreement will be governed by and construed in accordance
with the laws of the State of Florida, and the exclusive
jurisdiction and venue for any proceeding brought pursuant to
this Agreement shall be Palm Beach County.
IN WITNESS Whereof, the parties have executed this Agreement through their duly
authorized representatives.
eDiets.com, Inc. eDirect, Inc.
By: By:
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Print Name: Print Name:
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Title: Title:
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