Termination and Release Agreement - eDiets.com Inc. and iVillage Inc.
TERMINATION AND RELEASE AGREEMENT
This Termination and Release Agreement ("Agreement") is made and
entered into as of this 1st day of December, 2000, by and between eDiets.com,
Inc ("eDiets"), and iVillage, Inc. ("iVillage") with reference to the following
facts, circumstances and understandings:
A. On July 1, 2000, eDiets and iVillage entered into a written
Sponsorship Agreement ("the click thru Sponsorship Agreement") whereby iVillage
agreed to feature and promote on a click -thru basis throughout the iVillage
Network.
B. eDiets and iVillage have each determined that it is in the
best interests of both parties to terminate the click thru Sponsorship Agreement
as of November 1, 2000.
The parties hereto now wish to terminate the click thru Sponsorship
Agreement as of November 1, 2000 on the terms set forth herein.
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AGREEMENT
Based on the foregoing, for good and valuable consideration, receipt of
said consideration being hereby acknowledged, it is agreed as follows:
1. Payment by ediets. Within five (5) days following receipt by
iVillage of a counterpart of this Agreement fully executed by ediets, ediets
shall pay to iVillage the sum of One Hundred and Three Thousand, One Hundred and
Forty Eight Dollars and Seventy Six Cents ($103,148.76) by wire transfer to
"iVillage." This sum shall represent the compensation due to iVillage for 66,121
"click throughs" delivered to ediets by iVillage under the click thru
Sponsorship Agreement for the period of October 1, 2000 through the Effective
Date of this Termination and Release, at a rate of $1.56 per click
2. Mutual Release. Each of the parties hereto, on behalf of
themselves and their employees, agents, affiliates, and each of them, hereby
mutually releases the other party hereto and their past, present and future
employees, directors, officers, representatives, attorneys, affiliates, and
servants, and each of them, to and from any and all claims, demands, causes of
action, obligations, damages and liabilities, whether or not now known,
suspected or claimed, relating to the click through Sponsorship Agreement and
the matters set forth in paragraphs A-B above, which any of the parties ever
had, now has or claims to have had against any other party herein released up to
and including the date of this Agreement, including without limitation any
claims for costs or attorneys' fees, whether asserted prior to or after the
execution of this Agreement, excepting only the covenants and obligations set
forth in this Agreement.
3. Warranty of Authority. Each of the parties hereto represents
and warrants that:
A. It has the right and authority to release the claims,
agree to all matters set forth herein, and execute this Agreement; and
B. It has not sold, assigned, transferred, conveyed,
hypothecated, encumbered or otherwise disposed of an interest in any of the
claims or demands relating to any subject matter covered by this Agreement and
is the sole owner of the claims or demands.
4. Covenant Not to Sue. Each party hereby covenants and agrees
never to commence, prosecute or cause, permit, or advise to be commenced or
prosecuted against any party herein released, any action at law or equity, or
other proceedings, based upon any of the claims covered by or referred to in
paragraphs A-B of this Agreement. If any such prohibited action or proceeding is
instituted, this Agreement may be pleaded as a full and complete defense
thereto.
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5. Successors and Assigns. All covenants and agreements herein
shall bind and inure to the benefit of the respective successors, assigns,
representatives, employees, transferees, directors, officers, attorneys, parent
companies, subsidiaries, divisions, partners and joint ventures of the parties
hereto.
6. Attorneys' Fees. Each party shall bear its own costs and
attorneys' fees incurred in the disputes hereby resolved except as provided
herein. If any party hereto shall bring an action against any other party
hereto, or otherwise seek to enforce this Agreement, by reason of the breach of
any covenant, warranty, representation or condition of this Agreement, or
otherwise arising out of this Agreement, whether for declaratory or other
relief, the prevailing party in such suit shall be entitled to its costs of suit
and attorneys' fees.
7. Counterparts. This Agreement may be executed in two or more
partially or fully executed counterparts each of which shall be deemed an
original and shall bind the signatory, but all of which together shall
constitute but one and the same instrument.
8. Entire Agreement. This Agreement is the entire agreement and
understanding between and among the parties. No party has relied upon any other
communication whatsoever in entering into this Agreement. Each party understands
and agrees that this Agreement may not be altered, amended, modified or
otherwise changed in any respect or particular except in writing, duly executed
by each of the parties to this Agreement. This Agreement shall be governed by
the laws of the State of California, excepting principles of conflicts of law.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of
the date first written above.
eDiets.com, Inc.
By:
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Its:
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iVillage, Inc..
By:
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Its:
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