License and Marketing Agreement - Intel Corp. and eDiets.com Inc.
LICENSE AND MARKETING AGREEMENT
EFFECTIVE DATE: July 19, 2000
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AGREEMENT No.:
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Parties:
Intel Corporation (with all subsidiaries referred to as "Intel")
2200 Mission College Blvd.
Santa Clara, CA 95052
eDiets.com, Inc. (referred to as "eDiets.com")
3467 Hillsboro Blvd., Suite 2
Deerfield Beach, Fl 33442
Intel, through its Vivonic division, manufactures and sells the VivonicTM
Fitness Planner (a system of handheld hardware and PC-based software
applications designed to improve adherence to diet and/or fitness plans) ("VFP")
and related products. Intel maintains, through its Vivonic division, an Internet
web site (known as the VivonicSM Web Site) for the purpose, among others, of
assisting with the sale and promotion of the VFP. eDiets.com is a leading online
provider of health and fitness information, and in connection therewith,
maintains an Internet web site (known as the eDiets.com Web Site). The parties
intend to license certain content to each other in accordance with the
provisions of this Agreement. The parties also intend to implement hypertext
links between their respective web sites and to engage in certain joint
marketing activities, as set forth herein. The following exhibits are included
in and made a part of this Agreement:
Exhibit A - General Terms and Conditions
Exhibit B - Specifications
Exhibit C - Specified Format
Exhibit D - VivonicTM Mark Usage Guidelines
Exhibit E - eDiets.com Mark Usage Guidelines
Exhibit F - VivonicTM Privacy Policy
Exhibit G - eDiets.com Privacy Policy
AGREED
INTEL CORPORATION EDIETS.COM, INC.
/s/ /s/
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Signature Signature
Evan Denhart Angela Dowgos
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Printed Name Printed Name
Business Development Manager Director- Marketing Development
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Title Title
July 19, 2000 July 19, 2000
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Date Date
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EXHIBIT "A"
GENERAL TERMS AND CONDITIONS
1. Definitions:
1.1 "Account Manager" means the individual assigned by each of the
parties to serve as that party's primary liaison with the
other party for purposes of administration of this Agreement.
1.2 "Click Through" means the actual transport of an End User via
a Link from the eDiets.com Website to the VivonicSM Website or
from the VivonicSM Website to the eDiets.com Website, or, as
applicable from the eDiets.com Website to the Website of the
VivonicTM Fulfillment Service Provider.
1.3 "Content" means any and all text, logos, artwork, graphics,
pictures, sounds, video or other material, in any format
whatsoever, supplied by a party from time to time during the
term of this Agreement.
1.4 "End User" means, with respect to Intel, the owner or licensee
of VivonicTM Products, and means, with respect to eDiets.com,
a registered user of the eDiets.com Website or services.
1.5 "End User Data" means fitness, training and nutritional data
relating to a eDiets.com End User who is also a VivonicTM End
User.
1.6 "eDiets.com Content" means the Content transferred
electronically by eDiets.com to Intel's server pursuant to
this Agreement, as more particularly described in the
Specifications.
1.7 "eDiets.com Licenses" means the licenses of eDiets.com Content
and eDiets.com Marks granted by eDiets.com to Intel hereunder.
1.8 "eDiets.com Mark Usage Guidelines" means the trademark usage
guidelines attached as Exhibit E.
1.9 "Fulfillment Service Provider" means a third party that
handles credit card processing and fulfillment of orders for
VivonicTM Products.
1.10 "Link" means the display and placement of hyperlinked text in
a certain region of a Web Page.
1.11 "Link Content" means Content associated with the graphic
display of a Link.
1.12 "Marks" means the tradenames, service names and service marks
of a party (including without limitation the party's name,
domain name and logos) which are designated by such party for
use in connection with this Agreement, as described in the
Specifications.
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1.13 "Nutrition Plans" means that portion of the eDiets.com Content
consisting of nutrition plans and programs developed by
eDiets.com and licensed to Intel for download to and use on
VivonicTM Products, as described in the Specifications.
1.14 "Opt-In User" means a registered user of the eDiets.com or
VivonicSM Websites who has expressly granted permission to
eDiets.com or Intel (as applicable), to send communications
from such Website to such user.
1.15 "Premium Services" means those sports, fitness and nutrition
training services offered by eDiets.com with respect to which
eDiets.com charges a fee to such End Users.
1.16 "Specifications" means the description, and the criteria for
the placement, size, format and location, of Content to be
provided under this Agreement by each party to be posted on
the other party's Website, as described in Exhibit B.
1.17 "Specified Formats" means the pre-determined formats for the
Content, as described in Exhibit C.
1.18 "Updated Content" means any Content that supplements, updates
or replaces any existing Content, or that constitutes
information written, developed or maintained by the provider
thereof that pertains to Content.
1.19 "URL" means a uniform resource locator.
1.20 "VivonicTM Content" means the description and graphics for the
VivonicTM Products transferred electronically by Intel to
eDiets.com's server pursuant to this Agreement.
1.21 "VivonicTM Database" means the structure (but not the content)
of the nutritional information database included in the
software portion of the VivonicTM Products.
1.22 "VivonicTM Licenses" means the licenses of VivonicTM Content
and VivonicTM Marks granted by Intel to eDiets.com hereunder.
1.23 "VivonicSM Nutrition Page" means the Web Page located at the
VivonicSM Website which displays nutrition information and
other similar content for download and use on VivonicTM
Products.
1.24 "VivonicTM Products" means the fitness and nutrition products,
both in hardware and software, developed, manufactured, and/or
distributed by or for Intel under the VivonicTM or other brand
names.
1.25 "VivonicTM Mark Usage Guidelines" means the trademark and
service mark usage guidelines attached hereto as Exhibit D.
1.26 "Web Page" means a certain document within a party's Website
that is written in HTML or other industry standard language
and that is identified by a unique file
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name and accessible to End Users via a URL address which
contains the same root URL address as the hosting party's
Website.
1.27 "Website" means a collection of hyperlinked Web Pages.
2. Term: The term of this Agreement shall commence on the Effective Date and
shall continue for a period of two (2) years thereafter, unless earlier
terminated pursuant to the provisions of this Agreement. This Agreement may be
renewed for one or more additional one (1) year terms by a written agreement of
the parties.
3. Website; Provision of Content:
3.1 Websites; Links. Each party (or its contractors or
subcontractors) will develop, maintain and host its own
Website, and shall pay all costs associated therewith. Each
party's Website will display Links to the other party's
Website and Link Content associated therewith. The eDiets.com
Website will also display Links to the VivonicTM Fulfillment
Service Provider, and Link Content supplied by Intel relating
to the availability of VivonicTM Products through the
VivonicTM Fulfillment Service Provider. The parties shall
cooperate in good faith to (a) identify appropriate areas
within each party's Website to place Links providing Click
Throughs to the other party's Website, (b) identify
appropriate areas within the eDiets.com Website to place Links
providing Click Throughs to the Vivonic TM Fulfillment Service
Provider, (c) identify the most appropriate Web Pages within
those Websites with which to link, (d) agree upon the
editorial content and placement of any recommendations made on
their respective Websites of the others' products and
services, and (e) agree upon Updated Content from time to
time.
3.2 Specifications. The Specifications (attached as Exhibit B) set
forth the agreements the parties have made to date regarding
the Content to be provided under this Agreement and the
placement, size and location for such Content. Further
agreements made by the parties pursuant to Section 3.1 above
and Section 4 below regarding the provision, placement, size
and location of Content provided hereunder shall be reduced to
writing, signed by each party's Account Manager or other
authorized representative and appended to the Specifications
and shall form a part thereof.
3.3 Technical Support; Use of End User Data. Intel and eDiets.com
each acknowledge that End User Data may be stored, at the
option of the End User, either in the journal contained in the
VivonicTM PC software, on the VivonicSM Website or on the
eDiets.com Website, and that fitness and nutrition plans may
be downloaded directly from the eDiets.com Website or
indirectly through the VivonicSM Website to VivonicTM
Products. Intel will render such technical assistance and
support as eDiets.com may reasonably request to facilitate
uploads and downloads of End User Data, and the technical
compatibility of Nutrition Plans and other applications with
requirements of the VivonicTM Products.
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4. Promotion and Marketing:
4.1 By eDiets.com. During the term of this Agreement, eDiets.com
will promote the VivonicTM Products as follows:
(a) eDiets.com will make VivonicTM Products available to
its End Users bundled with its nutrition and fitness
training programs, at prices and on terms to be
negotiated in good faith by the parties.
(b) eDiets.com will make reasonable efforts to promote
the VFP and other VivonicTM Products at all live
sporting events sponsored by eDiets.com. Intel will
make reasonable efforts to support live
demonstrations of VivonicTM Products at these events.
Without limiting the foregoing, the Account Managers
will meet quarterly to discuss promotional
opportunities and methods at sporting events.
(c) eDiets.com will send an e-mail message to its Opt-In
Users each quarter promoting the sale and use of
VivonicTM Products. eDiets.com will submit the
proposed text of each e-mail message to Intel for
approval at least fifteen (15) days prior to the
scheduled distribution date, and eDiets.com will not
distribute any such message to its Opt-In Users until
such message has been approved in writing (or via
e-mail) by Intel.
(d) Links for the Link Content provided by Intel will be
posted in prominent positions at the eDiets.com
Website, on the "Training Programs" Webpage and the
"Nutrition Programs" Webpage (or if such Webpages are
discontinued, their functional equivalents), and at
such other locations on the eDiets.com Website as the
parties may mutually agree, as negotiated in good
faith by the parties. The size of each such Link will
be at least one inch square (on a standard size
screen), and a viewer will not be required to scroll
down the page to view such Link.
(e) Links for the Link Content provided by Intel will be
posted on each Webpage on the eDiets.com Website
where logos and links to other content of other
providers of handheld fitness devices or portable
fitness software are posted. The VivonicTM Mark and
Link for its associated Link Content will be of equal
or larger size, and will be posted in at least as
prominent a position on each such Webpage.
(f) Links to the VivonicTM Fulfillment Service Provider
will be posted at the eDiets.com Website, as
negotiated in good faith by the parties.
4.2 By Intel. During the term of this Agreement, Intel will
promote eDiets.com as follows:
(a) Links for the Link Content provided by eDiets.com
will be posted in a prominent position on the
VivonicSM Nutrition Page, in accordance with
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the Specifications, and on such other Webpages on the
VivonicSM Website as the parties may negotiate in
good faith.
(b) Links for the Link Content provided by eDiets.com
will be prominently featured as one of the first
Links presented to certain End Users of the VivonicTM
Products when they begin using the PC software
included in the VivonicTM Products and the first
Webpage displayed to such End Users when they return
to the VivonicSM Website, on substantially the same
basis as links to other providers of
nutrition-related content are presented, as
negotiated in good faith by the parties. eDiets.com
Content will also be posted from time to time in new
product and feature announcements presented on the
VivonicSM Nutrition Page, as negotiated in good faith
by the parties.
(c) The eDiets.com Mark will be posted on the first
Webpage displayed to End Users of VivonicTM Products
and all Webpages that promote web-based support of
VivonicTM Products.
(d) Links for the Link Content provided by eDiets.com
will be posted on each Webpage on the VivonicSM
Website where logos and links and other content of
other Websites providing nutrition/diet content are
posted. The eDiets.com Mark and associated Link for
its Link Content will be of equal or larger size, and
will be posted in at least as prominent a position on
each such Webpage.
5. Revenue Sharing and Fees:
5.1 By Intel. Intel will pay a commission to eDiets.com in an
amount equal to ten percent (10%) of the net sales price
charged to eDiets.com End Users (or, in the case of sales to
End Users that are processed through authorized distributors
of VivonicTM Products and including sales to End Users that
are processed through the VivonicTM Fulfillment Service
Provider, the net sales price charged by Intel to such
distributors or Fulfillment Service Provider) and actually
received by Intel (net of sales, use and similar taxes,
shipping and handling charges, and discounts or adjustments
for defective products) from the sale of Vivonic(TM)Products
to eDiets.com End Users resulting from Click Throughs.
5.2 By eDiets.com.
(a) eDiets.com will pay a commission to Intel in an
amount equal to twenty percent (20%) of the sales
price or service charge charged and actually received
by eDiets.com per month from the provision of Premium
Services to eDiets.com End Users in connection with
which the End User actively transfers data from the
VivonicSM Website to the eDiets.com Website. In the
case of an End User that enters into a contract for
the provision of Premium Services with a term of
longer than one month, Intel will receive a prorated
portion of the net sales price charged over the term
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of the contract for each month during which the End
User transfers data from the VivonicSM Website to the
eDiets.com Website in connection with the use of the
Premium Services.
(b) eDiets.com will pay a fee to Intel in an amount equal
to $4.00 for each new eDiets.com End User who
subscribes to Premium Services and whose initial
access to the eDiets.com Website results from a Click
Through.
(c) eDiets.com will pay fees to Intel based on the number
of End User Data transfers from the VivonicSM Website
to the eDiets.com Website initiated or requested by
eDiets.com End Users who do not subscribe to Premium
Services. The fees will be calculated based on the
number of data transfers per month, as follows:
Number of transfers per month Fee per transfer
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First 25,000 transfers $0.12
Second 25,000 transfers $0.06
All additional transfers $0.03
5.3 Advertising. Intel retains all rights to the VivonicTM Product
and VivonicSM Website space/screen during the transfer of data
or Content by End Users between VivonicTM Products and the
VivonicSM Website and among VivonicTM Products. Intel may, in
its sole discretion and on terms and conditions acceptable to
it in its sole discretion, permit eDiets.com to sell
advertising for placement on the space/screen during such data
transfer. eDiets.com will pay a commission to Intel in an
amount equal to fifty percent (50%) of the revenues actually
received by eDiets.com from the sale of such advertising.
5.4 Tracking. Within days after the date of this Agreement, the
parties will develop a mutually acceptable written protocol
for tracking, maintaining, monitoring and reporting the data
and information required to calculate the commissions and fees
required to be paid hereunder. It is anticipated that Intel
will be responsible for tracking and maintaining data
regarding (a) End User purchases of VivonicTM Products, (b)
eDiets.com End Users whose initial access to the eDiets.com
Website results from a Click Through from the VivonicSM
Website, and (c) data transfers between the VivonicSM Website
and the eDiets.com Website initiated by eDiets.com End Users.
It is anticipated that eDiets.com will be responsible for
tracking the number of End Users of Premium Services uploading
data to the eDiets.com Website per month and per quarter. If
changes in the operation or organization of either party's
Website necessitate a change in such protocol, the Account
Managers for the parties will work together to develop
mutually acceptable changes.
5.5 Payment; Audit. On the twentieth (20th) day of each calendar
quarter, each party shall provide the other party with a
report for the previous calendar quarter showing in reasonable
detail the data and information required to calculate
commissions and fees required to be paid hereunder and the
method of calculation
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thereof. Within forty-five (45) days thereafter, each party
shall pay the other all commissions and fees payable by such
party with respect to such previous quarter. Either party may,
upon sixty (60) days prior written notice to the other party,
audit the other party's records related to the sale of the
auditing party's products, services and advertising, provided
that neither party may conduct an audit more often than once
annually. Any audit shall be conducted by an independent
certified public accountant who has entered into the standard
confidentiality agreement of the party being audited at the
expense of the auditing party during the other party's normal
business hours in such a manner as not to interfere with the
other party's normal business activities. The accountant shall
disclose only whether there has been an underpayment, and if
so, the amount of the underpayment.
6. License Grants:
6.1 License of eDiets.com Content and Marks.
(a) eDiets.com grants to Intel a non-exclusive,
world-wide, irrevocable (except upon termination of
this Agreement in accordance with its terms), fully
paid, royalty-free license (with right to sublicense
to End Users of VivonicTM Products) under all
copyrights now or later owned or controlled by
eDiets.com to reproduce, have reproduced, publicly
perform, publicly display and distribute the
eDiets.com Content to third parties through any
means.
(b) eDiets.com grants to Intel a non-exclusive,
world-wide, irrevocable (except upon termination of
this Agreement in accordance with its terms), fully
paid, royalty-free license (with the right to
sublicense to End Users of VivonicTM Products) under
all intellectual property rights now or later owned
or controlled by eDiets.com and necessarily practiced
in the eDiets.com Content, to use, distribute and
import the eDiets.com Content, as necessary for the
exercise of the rights granted to it in the copyright
licenses under this Agreement.
(c) eDiets.com grants to Intel a non-exclusive,
world-wide, royalty-free, fully paid license to use
and display the eDiets.com Marks for the purposes
described in, and subject to the limitations
contained in (including without limitation the
eDiets.com Marks Usage Guidelines), this Agreement.
6.2 License of VivonicTM Content and Marks.
(a) Intel grants to eDiets.com a non-exclusive,
world-wide, irrevocable (except upon termination of
this Agreement in accordance with its terms),
royalty-free license (with the right to sublicense to
eDiets.com End Users) under all copyrights for the
Vivonic TM Content now or later owned or controlled
by Intel to reproduce, have reproduced, perform,
display on its
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Website and distribute the VivonicTM Content to third
parties through the eDiets.com Website.
(b) Intel grants to eDiets.com a non-exclusive,
world-wide, irrevocable (except upon termination of
this Agreement in accordance with its terms), fully
paid, royalty-free license under all intellectual
property rights now or later owned or controlled by
Intel and necessarily practiced in the VivonicTM
Content, to use, distribute and import the VivonicTM
Content, as necessary for the exercise of the rights
granted to it in the copyright licenses under this
Agreement.
(c) Intel grants to eDiets.com a non-exclusive,
world-wide, royalty-free, fully paid license to use
and display the VivonicTM Marks for the purposes
described and subject to the limitations contained in
(including without limitation the VivonicTM Marks
Usage Guidelines), this Agreement.
6.3 License of VivonicTM Database. In exchange for eDiets.com's
agreement to maintain compatibility in the manner of accessing
nutritional information in the eDiets.com database and
nutritional information in the VivonicTM Database, Intel
grants to eDiets.com a non-exclusive, world-wide,
non-transferable, irrevocable (except as set forth in the
following sentence), royalty-free license to reproduce, have
reproduced, publicly perform and publicly display the
VivonicTM Database in connection with the development of the
eDiets.com Content and the provision of the eDiets.com
Content, the VivonicTM Content and the VivonicTM Database to
its End Users and End Users of the VivonicTM Products.. The
license granted by this Section shall expire upon the earlier
of (a) the date eDiets.com ceases to maintain the
compatibility of the structural hierarchy used for accessing
nutritional information on the eDiets.com database with the
most recently released structural hierarchy provided by Intel
that is used to access nutritional information in the
VivonicTM Database, or (b) the date that Intel (or its
permitted assign) has ceased to sell or license VivonicTM
Products and operate the VivonicSM Website.
6.4 Ownership.
(a) Subject to the eDiets.com Licenses granted to Intel
pursuant to this Agreement, all right, title and
interest in and to the eDiets.com Content and the
eDiets.com Marks shall remain eDiets.com's or
eDiets.com's supplier's sole and exclusive property.
(b) Subject to the Vivonic Licenses granted to eDiets.com
pursuant to this Agreement, all right, title and
interest in and to the VivonicTM Content, the
VivonicTM Marks and the VivonicTM Database shall
remain Intel's or Intel's supplier's sole and
exclusive property.
(c) As between Intel and eDiets.com, all data created by
VivonicTM and eDiets.com End-Users and transmitted to
Intel or eDiets.com via the VivonicSM Website or the
eDiets.com Website shall be jointly owned and
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controlled, and each party shall have the
unrestricted right to obtain access to such data from
the other party's Website and retain copies of all
such data, subject to the rights of the End Users and
for use in accordance with the parties' respective
privacy policies attached hereto as Exhibits F and G.
7. Delivery of Content:
7.1 Delivery of eDiets.com Content. eDiets.com will make its
initial delivery of eDiets.com Content to Intel
electronically, in the Specified Format, to the Vivonic server
within seven (7) days after execution of this Agreement. Any
eDiets.com Content to be developed after the execution of this
Agreement shall be delivered in accordance with the schedule
contained in Exhibit B. The eDiets.com Content associated with
the Fitness Programs will be subject to acceptance by Intel,
and Intel will inform eDiets.com within seven (7) days after
receipt of as to whether it accepts or rejects such eDiets.com
Content. If Intel does not respond within the prescribed
period specified herein, then acceptance will be deemed to
have occurred at the end of such period. If Intel rejects the
eDiets.com Content, then eDiets.com will deliver a corrected
version to Intel within fourteen (14) days, unless otherwise
agreed by the parties. Any Updated Content provided by
eDiets.com shall be delivered as agreed by the parties.
7.2 Delivery of Vivonic Content. Intel will make its initial
delivery of VivonicTM Content to eDiets.com electronically, in
the Specified Format, to the eDiets.com server within seven
(7) days after execution of this Agreement. Any Updated
Content provided by Intel shall be delivered as agreed by the
parties.
8. Use of Websites, Content and Marks:
8.1 Control of Websites. Each party retains sole right and control
over the programming, content and conduct of its Website. Each
party acknowledges that the other party may periodically make
changes to the organization, content, design and features of
its Website. Nothing in this Agreement shall prohibit such
changes, provided however, that neither party shall make any
change that would be likely to have a material and adverse
impact on the promotion of the other party's products and
services, Click Throughs from the other party's Website or the
transfer of End User Data from one site to the other without
giving the other party advance written notice and negotiating
in good faith with the other party, if necessary, toward the
implementation of a satisfactory substitute. The parties agree
to cooperate in good faith to implement changes in Links that
may be required as a result of changes to a Website.
8.2 Design and Operation of Websites. Each Website shall be
designed and maintained during the term of this Agreement such
that End Users can load and view them through browsers without
significant formatting or technical error and without
experiencing significant delay. Each party will use reasonable
efforts to ensure that all URLs to which Links are provided
are functional and accessible at
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all times. In the event of an error, delay, defect, breakdown
or failure of a party's Website, its obligation shall be
limited to use of reasonable diligence under the circumstances
to restore its Website to operation.
8.3 Standards. Each party retains the right, in its sole
discretion, to immediately cease linking to or providing
Content to the other party's Website if such party has
reasonable grounds to believe that the other party's Website
or Content infringes on the proprietary rights of any third
party, violates any applicable law or regulation, or is
defamatory, obscene or offensive.
8.4 Marks. eDiets.com will comply with the Vivonic Mark Usage
Guidelines. Intel will comply with the eDiets.com Mark Usage
Guidelines.
8.5 Privacy Policies. Each party shall comply with its privacy
policies (as they may be amended from time to time) with
respect to the use of information and data uploaded to its
Website by End Users of VivonicTM Products; provided, however,
that nothing contained in either party's privacy policy shall
interfere with the right of the other party to use data of an
End User if such End User expressly consents to the use of
such data. Intel's current privacy policy is attached hereto
as Exhibit G. eDiets.com's current privacy policy is attached
hereto as Exhibit H. Intel and eDiets.com agree that they will
not modify their respective privacy policies in any manner
that would (a) curtail or prevent the other party's access to
End User Data, (b) permit the marketing of individually
identifiable data, or (c) allow third parties to send
unsolicited mailings to an End User, unless such change is
required to comply with any applicable law or regulation, and
then only upon thirty (30) days prior written notice to the
other party. If a party reasonably objects to any proposed
change in the other party's privacy policy for any reason set
forth in the previous sentence, then the Account Managers for
the parties shall meet and work out mutually acceptable
language.
8.6 Account Managers. Each party shall appoint an Account Manager
whose responsibilities shall include monitoring the
performance of obligations under this Agreement. The parties'
Account Managers shall have regular communications to review
each others' respective performance under this Agreement.
9. Indemnification:
9.1 Infringement Indemnity. eDiets.com will defend or settle any
suit or proceeding brought against Intel based upon a claim
that any Content provided by eDiets.com, alone and not in
combination with any other product, constitutes a direct
infringement of any United States copyright or trade secret,
and pay all damages and costs finally awarded against Intel,
provided that Intel (i) promptly notifies eDiets.com in
writing of such claim or action, (ii) provides eDiets.com with
sole control over the defense or settlement of such suit or
proceeding, and (iii) provides eDiets.com with reasonable
information and assistance in the defense and/or settlement
any such claim or action. eDiets.com will not be responsible
for any costs, expenses or compromise incurred or made by
Intel.
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9.2 Disclaimer. THE FOREGOING STATES THE ENTIRE LIABILITY AND
OBLIGATIONS OF EDIETS.COM AND THE EXCLUSIVE REMEDY OF INTEL,
WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OF PATENTS,
COPYRIGHTS, TRADE SECRETS, TRADEMARKS, OR OTHER INTELLECTUAL
PROPERTY RIGHTS.
9.3 Privacy Indemnity. eDiets.com will defend or settle any suit
or proceeding brought against Intel based on a claim that
eDiets.com's use of End User Data violated eDiets.com's
privacy policy, and pay all damages and costs finally awarded
against Intel, provided that Intel (i) promptly notifies
eDiets.com in writing of such claim or action, (ii) provides
eDiets.com with sole control over the defense or settlement of
such suit or proceeding, and (iii) provides eDiets.com with
reasonable information and assistance in the defense and/or
settlement any such claim or action. eDiets.com will not be
responsible for any costs, expenses or compromise incurred or
made by Intel.
10. Termination:
10.1 Termination Upon Default. Either party shall have the right to
terminate this Agreement should the other party materially
default in the performance of any of its obligations if,
within thirty (30) days after written notice, the defaulting
party has failed to cure the default.
10.2 Return of Materials. Upon termination or expiration of this
Agreement, (i) each party shall promptly return all
confidential and proprietary information and other
information, documents, manuals, equipment and other materials
belonging to the other party, (ii) each party shall
immediately cease using all Content and Marks of the other
party in any form, and (iii) each party shall terminate all
Links established pursuant to this Agreement. Notwithstanding
the foregoing, the following shall not be affected by the
termination of this Agreement for any reason: (x) sublicenses
of eDiets.com Content (including Fitness Programs) granted by
Intel to its End Users, and (y) sublicenses of VivonicTM
Content granted by eDiets.com to its End Users.
10.3 Survival. The following provisions shall survive any
expiration or termination of this Agreement: Section 1.
Definitions; Section 10. Indemnification; Section 12.
Confidentiality and Non-disclosure; Section 13. Limitation of
Liability and Disclaimer; and Section 14. General Provisions.
11. Confidentiality and Non-Disclosure:
11.1 General. Confidential information disclosed under this
Agreement, including the existence and content of this
Agreement, shall be considered "Confidential Information." Use
and disclosure of such Confidential Information shall be
governed by the terms of the Intel Corporate Non-Disclosure
Agreement, No. 9326216 executed by the parties on January 13,
2000, and incorporated into this Agreement by reference.
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11.2 Confidentiality of Terms. The parties shall keep the terms of
this Agreement confidential and shall not now or hereafter
divulge these terms to any third party except: (a) with the
prior written consent of the other party; (b) as otherwise may
be required by law or legal process, including to legal and
financial advisors in their capacity of advising a party in
such matters; (c) during the course of litigation, so long as
the disclosure of such terms and conditions are restricted in
the same manner as is the confidential information of other
litigating parties; or (d) in confidence to its legal counsel,
accountants, banks and financing sources and their advisors
solely in connection with complying with financial
transactions; provided that, in (b) through (d) above, (i) the
disclosing party shall use all legitimate and legal means
available to minimize the disclosure to third parties,
including without limitation seeking a confidential treatment
request or protective order whenever appropriate or available;
and (ii) the disclosing party shall provide the other party
with at least ten (10) days prior written notice of such
disclosure.
12. Limitation of Liability and Disclaimer:
12.1 Liability; Limitation. NEITHER PARTY SHALL BE LIABLE TO THE
OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL,
CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THE PARTY
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING
FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION LOSS OF
REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. IN NO EVENT
WILL INTEL'S TOTAL LIABILITY FOR ANY CLAIMS OR CAUSES ARISING
OUT OF THIS AGREEMENT EXCEED $100,000.
12.2 No Additional Warranties. NEITHER PARTY MAKES, AND EACH PARTY
SPECIFICALLY DISCLAIMS, ANY WARRANTIES, EXPRESS OR IMPLIED,
REGARDING ANY MATTER SUBJECT TO THIS AGREEMENT, INCLUDING
IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE AND WARRANTIES REGARDING NON-INFRINGEMENT
OF INTELLECTUAL PROPERTY RIGHTS.
13. General Provisions:
13.1 Relationship of Parties. The parties hereto are independent
contractors. Neither party has any express or implied right or
authority to assume or create any obligations on behalf of the
other or to bind the other to any contract, agreement or
undertaking with any third party. Nothing in this Agreement
shall be construed to create a partnership, joint venture,
employment or agency relationship between the parties.
13.2 Independent Development. This Agreement does not preclude
either party from evaluating, acquiring from third parties not
a party to this Agreement,
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independently developing or marketing similar information,
technologies or products, or making and entering into similar
arrangements with other companies. Neither party is obligated
by this Agreement to make such information, products or
technologies available to the other. This Agreement does not
preclude either party from entering into similar agreements
and arrangements with other parties.
13.3 Entire Agreement. The terms and conditions of this Agreement,
including its exhibits, constitutes the entire agreement
between the parties with respect to the subject matter hereof,
and merges and supersedes all prior and contemporaneous
agreements, understandings, negotiations and discussions.
Neither of the parties shall be bound by any conditions,
definitions, warranties, understandings, or representations
with respect to the subject matter hereof other than as
expressly provided herein. The section headings contained in
this Agreement are for reference purposes only and shall not
affect in any way the meaning or interpretation of this
Agreement. No oral explanation or oral information by either
party hereto shall alter the meaning or interpretation of this
Agreement. No amendments or modifications shall be effective
unless in a writing signed by authorized representatives of
both parties. These terms and conditions will prevail
notwithstanding any different, conflicting or additional terms
and conditions which may appear on any purchase order,
acknowledgment or other writing not expressly incorporated
into this Agreement. This Agreement may be executed in two (2)
or more counterparts, all of which, taken together, shall be
regarded as one and the same instrument.
13.4 Notices. All notices required or permitted to be given
hereunder shall be in writing, shall make reference to this
Agreement, and shall be delivered by hand, or dispatched by
prepaid air courier or by registered or certified airmail,
postage prepaid, addressed as follows:
If to eDiets.com: If to Intel:
Christine Brown Intel Corporation
3467 Hillsboro Blvd., #2 2200 Mission College Blvd.
Deerfield Beach, Fl 33442 Santa Clara, CA 95052
Attention: General Counsel Attention: General Counsel
With a copy to:
Post Contract Management
2111 N.E. 25th Avenue, JF3-149
Hillsboro, Oregon 97124
Such notices shall be deemed served when received by addressee
or, if delivery is not accomplished by reason of some fault of
the addressee, when tendered for delivery. Either party may
give written notice of a change of address and, after notice
of such change has been received, any notice or request shall
thereafter be given to such party at such changed address.
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13.5 Assignment. Neither party may assign or otherwise transfer its
rights or obligations under this Agreement without prior
written consent of the other party; provided that Intel may
assign this Agreement to any new entity it creates to carry on
the business that is currently conducted by its Vivonic unit
without eDiets.com's consent, and any such assignment shall
act as a novation of any obligations of Intel under this
Agreement.
13.6 Waiver. Failure by either party to enforce any term of this
Agreement shall not be deemed a waiver of future enforcement
of that or any other term in this Agreement or any other
agreement that may be in place between the parties.
13.7 No Rule of Strict Construction. Regardless of which of the
parties may have drafted this Agreement, no rule of strict
construction shall be applied against either party. If any
provision of this Agreement is determined by a court to be
unenforceable, the provision will be deemed to be modified to
the extent necessary to allow it to be enforced to the extent
permitted by law, or if it cannot be modified, the provision
will be severed and deleted from this Agreement, and the
remainder of the Agreement will continue in effect.
13.8 Governing Law; Jurisdiction. Any claim arising under or
relating to this Agreement shall be governed by the internal
substantive laws of the State of Delaware or federal courts
located in Delaware, without regard to principles of conflict
of laws. Each party hereby agrees to jurisdiction and venue in
the courts of the State of California for all disputes and
litigation arising under or relating to this Agreement.
13.9 Force Majeure. Neither party shall be responsible for its
failure to perform due to causes beyond its reasonable control
such as acts of God, fire, theft, war, riot, embargoes, or
acts of civil or military authorities.
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EXHIBIT B
SPECIFICATIONS
Description of Content
A. eDiets.com Content.
1. eDiets.com will deliver six (6) branded nutrition and/or fitness
articles per week during the term of this Agreement to Intel, which articles may
be posted on the VivonicSM Website with a eDiets.com Mark provided by
eDiets.com. Such articles will be delivered each 1st Monday of each month.
2. eDiets.com will deliver ten (10) nutrition programs, formatted for
use with VivonicTM Products, to Intel, on or before Sept. 1, 2000, which
programs may be listed and posted on the VivonicSM Website and downloaded by
VivonicTM End Users.
3. eDiets.com will deliver to Intel, as an initial delivery under this
Agreement, the Link and associated Link Content, as pictured below.
This Link will be posted on the VivonicSM Nutrition Page. Its size will be at
least one inch square (on a standard size screen) and it will be visible on the
VivonicSM Nutrition Page without scrolling.
B. VivonicTM Content.
1. Intel will deliver to eDiets.com, as an initial delivery under this
Agreement, the VivonicTM Mark, as pictured below.
[GRAPHIC OMITTED]
The VivonicTM Mark (and Link for any associated Link Content hereafter delivered
by Intel to eDiets.com for posting with the VivonicTM Mark) will be posted on
each Webpage on the eDiets.com Website where logos and other content of other
providers of handheld fitness devices and portable fitness software are posted.
The Vivonic Mark and associated Link will be of equal or larger size, and will
posted in at least as prominent a position on each such Webpage.
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EXHIBIT C
SPECIFIED FORMAT
Format for eDiets.com Nutrition Plans
Format for eDiets.com Nutrition articles
Format for eDiets.com Marks
Format for VivonicTM Marks
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EXHIBIT D
Usage Guidelines for the
VivonicTM Trademark and the VivonicSM Service Mark
This mark is used both as a service mark (SM) and a trademark (TM).
1. As with all other marks, the VivonicTM mark should always be used as an
adjective accompanied by an appropriate noun. This means that the
Vivonic mark must be followed by an appropriate descriptor (e.g.,
VivonicTM Fitness Planner).
- When using the Vivonic mark to refer to a product use the
following nouns: fitness plan, Fitness Planner, software,
tools, mark, name and trademark.
- When using the Vivonic mark to refer to a service use the
following nouns: site, web site, mark, name, service or
service mark,.
-
2. Generally, the noun following the trademark should be in lower case
unless part of a heading (e.g., VivonicTM software) or the product name
(e.g., VivonicTM Fitness Planner).
3. Always use the appropriate trademark symbol with the Vivonic mark.
Where Vivonic refers to a product, use"TM". Where Vivonic refers to a
service, use "SM". (e.g., VivonicTM tools or Vivonic SM web site).
4. Never hyphenate or abbreviate the VivonicTM mark (e.g., Vivonic-Fitness
Planner, VFP).
5. Never incorporate the Vivonic mark into another company's name,
product, model or brand.
6. Third parties should use an appropriate acknowledgement line such as,
"Vivonic is a trademark and service mark of Intel Corporation."
EXAMPLES OF USE
--------------------------------------------------------------------------------
INCORRECT CORRECT
--------------------------------------------------------------------------------
Vivonic planner VivonicTM Fitness Planner
--------------------------------------------------------------------------------
VivonicTM web site VivonicSM web site
--------------------------------------------------------------------------------
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EXHIBIT E
EDIETS.COM TRADEMARK USAGE GUIDELINES
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EXHIBIT F
INTEL PRIVACY POLICY
Vivonic's Online Privacy Policy
Your right to privacy is very important. We recognize that when you choose to
provide us with information about yourself, you trust us to act in a responsible
manner. We believe this information should only be used to help us provide you
with better service. That's why we have put a policy in place to protect your
personal information. Below is a summary of our policy:
What personal information do we collect?
As a VivonicTM Web site visitor, generally when you visit our site and access
information, you will remain anonymous. Before we ask you for information, we
will explain how this information will be used. We will not provide any of your
personal information to other companies or individuals without your permission.
There are occasions when we will ask you for additional information. We do this
to be able to better understand your needs and provide you with services that we
believe may be valuable to you. Some examples of information our website
collects are name, address, email address and phone number. We give you the
opportunity to elect not to receive materials from us. If you sign up for a
Vivonic electronic newsletter or email list, each message will include
instructions on how to "unsubscribe" from the list.
If you are an owner of a VivonicTM Fitness Planner, you may upload and download
your personal fitness, training and nutrition data to the VivonicTM Web site for
assessment and updating. If you are also a registered user or member of one of
our fitness partners, we may ask you for permission to share your personal
fitness, training and nutrition data with our fitness partner, and our fitness
partner may ask you to share your personal, training and nutrition data with us.
This information will not be shared without your permission. This privacy policy
only governs our use of information about you. Before you give us permission to
share your personal data with any of our fitness partners, you should visit
their site and review their privacy policy.
Protecting your privacy
We will take appropriate steps to protect your privacy. Whenever you provide
sensitive information (for example, a credit card number to make a purchase), we
will take reasonable steps to protect it, such as encrypting your card number.
We will also take reasonable security measures to protect your personal
information in storage, and only permit access to that information by persons
needing access to perform their jobs.
Except for personal fitness training and nutrition information that you ask us
to share with specific fitness partners, we will not provide any of your
personal information to other companies or individuals without your permission.
However, we may need to provide your name and delivery address to third parties
that we use for the purpose of delivering a specific
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service to you (e.g. customer support, or a shipping company, if you have asked
us to ship something to you).
Our website may provide links to third party sites. Since we do not control
these websites, we encourage you to review the privacy policies of these third
party sites.
Finally, while your individual information is protected as outlined above, we do
reserve the right to use aggregated anonymous data from our users as a group.
Specifically, we may share this aggregate information with our advertisers and
business partners.
Children's privacy
The Vivonic Web site does not knowingly collect personally identifiable
information from children under age 13. If we discover that a child under the
age of 13 has provided us with any personally identifiable information, we will
delete that information from our systems.
Vivonic encourages parents to go online with their children. Parents should
understand the sites their kids are visiting and which sites are appropriate.
There are parental control tools available such as browsers and filtering
software that prevent children from accessing inappropriate sites. Children
should never give out personal information on the Internet, such as name,
address, phone number, or name of school, unless supervised by a parent or
responsible adult. Look for a privacy policy on a web site and find out how
information collected from children is treated. Parents should teach their
children to look for sites that display a privacy policy.
Use of cookies
Vivonic uses cookies for various reasons. Cookies enable us to provide you with
a better experience by allowing us to understand what areas of the website are
of interest to our visitors. These cookies do not track individual information.
Vivonic also uses cookies when you register for one of our web programs, or buy
our products. In this situation, a cookie will store useful information that
enables our website to remember you when you return to visit us. Cookies from
the Vivonic website can only be read by Vivonic web sites. If you choose to
disable cookies in your browser, you can still access most of our website.
Data storage in the US
Portions of our website collect information. That information will be stored and
processed in databases in the United States.
How can you update the personal information you have provided to us?
You can help Vivonic maintain the accuracy of your information by notifying us
of any changes to your address, phone number, address or email address. In some
programs, you may do this online or through following the instructions on the
profile pages. If at any time you wish to stop receiving an electronic
newsletter from Vivonic, you can unsubscribe as explained in the
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newsletter, or contact us via feedback@vivonic.com
Questions
Vivonic welcomes comments and questions on this privacy policy. We are dedicated
to protecting your personal information and will make every reasonable effort to
keep that information secure. Due to the rapidly evolving technologies on the
Internet, we may occasionally update this policy. All revisions will be posted
to this site. Questions regarding this statement should be directed to
feedback@vivonic.com
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EXHIBIT G
eDiets.com PRIVACY POLICY
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