Online Services Agreement - iVillage Inc. and Charles Schwab & Co. Inc.
12/19/97 iVillage
ONLINE SERVICES AGREEMENT
This ONLINE SERVICES AGREEMENT, is made as of December 19, 1997, (the
"Effective Date"), with a launch date of February 1, 1998, or another date as
mutually agreed upon in good faith by the parties ("Launch Date") by and
between iVillage, Inc., a Delaware corporation having its principal offices at
170 Fifth Avenue, New York, New York 10010 ("iVillage"), and CHARLES SCHWAB &
CO., INC., a California corporation having its principal offices at 101
Montgomery Street, San Francisco, California 94104 ("Schwab").
WHEREAS, iVillage owns and operates a Web site on the Internet under
the name "Armchair Millionaire" or as such other name as iVillage may determine
(uniform resource locator http://www.armchairmillionaire.com) (the "Armchair
Site"), which is a financial community directed to the long-term investor, or
those seeking basic information on investing, and which is comprised of a
variety of areas dedicated to providing investment-related information.
WHEREAS, Schwab is a broker-dealer registered under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and desires to promote
its securities brokerage business by having certain promotions,
advertisements, and hyperlinks placed on the Armchair Site, and by sponsoring
the Brokerage and Mutual Fund areas on the Armchair Site during the term of
the Agreement.
NOW, THEREFORE, in consideration of the promises and the mutual
covenants and premises hereinafter provided, iVillage and Schwab agree as
follows:
1. Publication of Promotions and Advertisements and Establishment of
Sponsored Areas and Hyperlinks.
(a) During the term of the Agreement, Schwab shall be the exclusive
sponsor of the Brokerage and Mutual Fund areas on the Armchair Site
("Sponsorship Activities"). The Sponsorship Activities are more fully
described in Paragraphs l(a) and l(b) of Exhibit A to this Agreement.
(b) iVillage will publish promotions and advertisements detailed in
Exhibit A and establish one or more hyperlinks (the "Schwab Hyperlinks")
described in Exhibit A, pointing to Schwab's Web site or pages thereon
described on Exhibit A ("Schwab Site") where Schwab offers various products
and services relating to its securities brokerage and financial services
business.
(c) Subject to Section 3, iVillage may also disseminate or post on
any of its Web sites or otherwise, promotional, sales, marketing, advertising,
or other material or information (including, but not limited to, news
releases, press releases, advertising
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scripts, direct mail and E-mail correspondence, and display and online
advertising) referring to Schwab, its affiliates, or their respective products
or services (collectively, "Informational Material"). Informational Material
does not include editorial content prepared by, or at the direction of,
iVillage.
(d) iVillage will publish the Schwab Content described in Exhibit A
within the Armchair Site as mutually agreed upon in good faith by the
parties.
(e) Other than by engaging in the activities described in Sections 1
(a) and (b) above, iVillage and its employees will not (1) describe the Schwab
Services, excluding editorial content prepared by, or at the direction of,
iVillage (other than disseminating or posting Informational Material approved
in each case by Schwab pursuant to Section 3 below); (2) recommend or endorse
specific securities (other than by disseminating publications or information
prepared by third parties that are responsible for such content); or, directly
or indirectly, recommend or endorse specific broker-dealers (including, but
not limited, to ranking or rating brokerage companies or providing hyperlinks
to brokerage or mutual fund companies (excluding permitted advertisements),
unless approved by in advance by Schwab).
(f) iVillage and its employees will not become involved in the
financial services offered by Schwab, including (A) opening, maintaining,
administering, or closing customer brokerage accounts with Schwab; (B)
soliciting, processing, or facilitating securities transactions relating to
customer brokerage accounts with Schwab; (C) extending credit to any customer
for the purpose of purchasing securities through, or carrying securities
with, Schwab; (D) answering customer inquiries or engaging in negotiations
involving brokerage accounts or securities transactions; (E) accepting
customer securities orders, selecting among broker-dealers or routing orders
to markets for execution; (F) handling funds or securities of Schwab
customers, or effecting clearance or settlement of customer securities
trades; or (G) resolving or attempting to resolve any problems,
discrepancies, or disputes involving Schwab customer accounts or related
transactions.
2. Trademarks.
(a) iVillage grants Schwab a revocable, royalty-free,
non-transferable, non-exclusive right to display the trade or service name and
mark "iVillage or Armchair Millionaire" and related logos (collectively, the
"iVillage Marks") solely for the purposes of identifying and promoting iVillage
Web sites through which certain Schwab services may be made available;
provided, however, that (1) Schwab will not modify the iVillage Marks or use
them for any purpose other than as set forth above; (2) Schwab will not engage
in any action that adversely affects the good name, good will, image or
reputation of iVillage or its Web sites or associated with the iVillage Marks;
(3) Schwab will at all times use the appropriate trade or service mark notice
((TM), (SM) or (R), whichever is applicable) or such other notice as iVillage
may from time to time specify on any item or material bearing the iVillage
Marks; and (4) iVillage will have the right to review and
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approve in advance all materials to be disseminated electronically or
otherwise by Schwab, referring to iVillage, its affiliates, or their
respective products or services or containing the iVillage Marks, which
approval may be withheld by iVillage in its reasonable business discretion.
Except as otherwise provided by this Agreement, Schwab makes no representation
or warranty as to the extent or degree, if any, to which it will market,
advertise or promote the availability of certain of its services through
iVillage's Web sites.
(b) Notwithstanding the foregoing, iVillage does not have the right
to review and approve Schwab marketing materials or message content other than
the use of the iVillage Marks within such materials or messages.
(c) Schwab grants iVillage a revocable, royalty-free,
non-transferable, non-exclusive right to display the trade or service names and
marks "Schwab" and "Charles Schwab & Co., Inc." and related logos
(collectively, the "Schwab Marks") solely for the purposes of creating and
maintaining the Sponsorship Activities, the Schwab Hyperlinks and for
identifying and promoting those Schwab Services that may be made available
through iVillage Web sites; provided, however, that (1) iVillage will not
modify the Schwab Marks or use them for any purpose other than as set forth
above; (2) iVillage will not engage in any action that adversely affects the
good name, good will, image or reputation of Schwab or associated with the
Schwab Marks; (3) iVillage will at all times use the appropriate trade or
service mark notice ((TM), (SM) or (R), whichever is applicable) or such other
notice as Schwab may from time to time specify on any item or material bearing
the Schwab Marks; and (4) Schwab will have the right to review and approve in
advance all materials to be disseminated electronically or otherwise by
iVillage, referring to Schwab, its affiliates, or their respective products or
services or containing the Schwab Marks, which approval may be withheld by
Schwab in its reasonable business discretion. Any approval given by Schwab under
this Section 2(b) does not constitute an approval for purposes of Section 3
below.
(d) Notwithstanding the foregoing, Schwab does not have the right to
review and approve iVillage marketing materials or message content other than
the use of the Schwab Marks within such materials or messages.
3. Schwab Approval of Informational Material. iVillage acknowledges
that, as a registered broker-dealer and member of various securities
self-regulatory organizations, Schwab is subject to extensive regulation in
connection with its communications with the public. Accordingly, iVillage agrees
that, in addition to rights to approval in Sections 2(b) and 8 hereof, Schwab
will have the right to review and approve in advance, all Informational
Material. Without limiting the generality of the foregoing, this right includes
the right to review and mutually agree upon (a) any change in the placement of
Schwab's name or the Schwab Hyperlinks, (b) any Schwab sponsored content, and
(c) the placement of Schwab's name on any iVillage Web site screens or pages.
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4. Representations and Warranties. Schwab and iVillage each represent and
warrant with respect to itself as follows: (a) such party is duly organized,
validly existing, and in good standing under the laws of the state in which it
is incorporated, and has the power and authority to carry on its business as
now being conducted; (b) this Agreement has been duly executed and delivered
on behalf of such party and is a legal, valid, and binding obligation of such
party enforceable against it in accordance with the terms of this Agreement,
except (1) as the same may be limited by bankruptcy, insolvency,
reorganization, or other laws or equitable principles relating to or affecting
the enforcement of creditors' rights, and (2) that the availability of
equitable remedies including specific performance is subject to general
equitable principles applied at the discretion of a court; and (c) such party
owns full right, title and interest in or otherwise has the right to grant to
the other party the rights granted in Section 2 above, and the trade or
service names and marks subject to such grant do not, to such party's
knowledge, infringe any rights of a third party. iVillage represents, warrants
and agrees that (a) the content in the Armchair Site is and will remain lawful
and non defamatory and does and will not infringe any intellectual property or
personal right held by any person; and (b) the products and services offered
by iVillage to users are offered, sold or otherwise provided in compliance
with applicable laws in all material respects, (c) that its' entering into
this Agreement does not violate an agreement with or require the approval of
any third party. Schwab represents, warrants and agrees that (a) the content
it provides for posting in the Armchair Site is and will remain lawful and non
defamatory and does and will not infringe any intellectual property or
personal right held by any person; and (b) the products and services offered
by Schwab to users are offered, sold or otherwise provided in compliance with
applicable laws in all material respects.
5. Compensation. Subject to the terms and conditions of this Agreement,
Schwab will pay iVillage the following compensation, in equal bi-annual
installments, during the term of this Agreement:
(a) During the first year following the Launch Date [*], which is
comprised of a [*] set-up fee and a [*] sponsorship fee the first bi-annual
installment to be due and payable upon execution of this Agreement, and [*] of
which is nonrefundable under Sections 5(d) and (e) below;
(b) During the second year following the Launch Date, [*], which is
comprised of a [*] exclusivity fee, which is due and payable on the first
anniversary of the Launch Date, and a [*] sponsorship fee, [*] of which is
nonrefundable under Sections 5(d) and (e) below;
(c) During the third year following the Launch Date, [*], which is
comprised of a [*]
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exclusivity fee, which is due and payable on the second anniversary of the
Launch Date, and a [*] sponsorship fee, [*] of which is nonrefundable under
Sections 5(d) and (e) below;
(d) If Schwab's Performance Objectives, as defined in Exhibit A, are
not met during the first or second year following the Launch Date, and Schwab
does not terminate the Agreement, Schwab will be entitled to a fee reduction
in the next year of the Agreement as set forth in Exhibit A.
(e) If Schwab's Performance Objectives are not met during either
the first or second year following the Launch Date and Schwab
terminates the Agreement, or if Schwab's Performance Objectives
are not met during the third year following the Launch Date and
the Agreement expires, iVillage shall pay to Schwab a cash
amount equal to the dollar amount of the fee reduction that
Schwab would have received in the next year if Schwab did not
terminate the Agreement or the Agreement did not expire. For a
payment that is owed at the end of the first or second year,
such cash payment shall be calculated on the ninetieth (90th)
day following the effective date of termination ("Calculation
Date") and shall be reduced by any additional Performance
Objectives that are achieved between the date that Schwab gives
notice of termination and the Calculation Date. For a cash
payment that is owed at the end of the third year of the
Agreement, such cash payment shall be calculated on the one
hundred and eightieth (180th) day following the expiration of
the Agreement ("third-year Calculation Date") and shall be
reduced by any additional Performance Objectives that are
achieved up until that date.
(f) Schwab and iVillage will discuss in good faith opportunities for
Schwab to benefit from [*] of gross advertising revenue collected in areas
containing content co-developed by the parties.
6. Term of Apreement; Termination.
(a) This Agreement will be effective beginning on the date hereof and
will expire on the three-year anniversary of the Effective Date of this
Agreement unless terminated sooner pursuant to this Section 6.
(B) Schwab may terminate the agreement, upon thirty (30) days notice
to iVillage, six months after the Launch Date if Schwab's Performance
Objectives for that time period are not met.
(c) Without cause and without breach or penalty, Schwab may terminate
the Agreement by giving notice to iVillage at least ninety (90) days prior to
each one-year
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anniversary of the Effective Date of the Agreement. In addition, Schwab may
terminate the Agreement based upon not meeting its Performance Objectives in
the immediately preceding year, by giving notice to iVillage at least sixty
(60) days prior to each one-year anniversary of the Launch Date. If Schwab
terminates based upon not meeting its Performance Objectives, iVillage shall
provide cash compensation, to Schwab, if any, as indicated in Section 5(e) of
this Agreement.
(d) Notwithstanding any other provision of this Agreement to the
contrary, (1) either party will have the right to terminate this Agreement if
the other party breaches any representation, warranty, covenant or obligation
in this Agreement and fails to cure such breach within thirty (30) days after
written notice thereof from the non-breaching party; and (2) either party may
terminate this Agreement immediately, on written notice to the other party, if
(a) such other party becomes subject to a statutory disqualification under
applicable provisions of the Exchange Act or becomes subject to any proceeding
that might result in it being so disqualified; (b) such other party or any of
its affiliates registers as or acquires a broker-dealer; or (c) such other
party (i) applies for or consents to the appointment of, or the taking of
possession of its property by, a receiver, custodian, trustee or liquidator;
(ii) admits in writing its inability to pay its debts as they become due;
(iii) makes a general assignment for the benefit of creditors; (iv) is
adjudicated as bankrupt or insolvent; (v) files a voluntary petition in
bankruptcy or a petition or answer seeking reorganization, an arrangement with
creditors or to take advantage of any insolvency law or an answer admitting
the material allegations of a petition filed against it in any bankruptcy,
reorganization, arrangement or insolvency proceeding; or (vi) initiates an
action of dissolution or liquidation.
7. Indemnification.
(a) iVillage (referred to in this Section 7(a) as the "indemnifying
party") agrees to indemnify, hold harmless, reimburse and defend Schwab, and
Schwab's directors and officers (referred to in this Section 7(a) as the
"indemnified party"), from and against any claim, suit, action, or other
proceeding brought against the indemnified party arising out of or in
connection with (i) the indemnifying party's breach of any representation,
warranty, covenant or obligation in this Agreement; (ii) any grossly negligent
or wrongful act or omission of the indemnifying party with respect to the
subject matter of this Agreement; or (iii) a claim that any material, product,
information or data or service produced, distributed, offered or provided by
the indemnifying party (including, without limitation, any material presented
on any site on the Internet, produced, maintained or published by the
indemnifying party, but excluding hyperlinks to sites on the Internet
produced, maintained or published by a third party) infringes in any manner,
any copyright, patent, trademark, trade secret or any intellectual property
right of any third party. The indemnifying party will pay any and all costs,
damages, and expenses, including, but not limited to, reasonable attorneys'
fees and costs awarded against or otherwise incurred by the indemnified party
in connection with or arising from any such claim, suit, action or other
proceeding;
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(b) Schwab (referred to in this Section 7(b) as the "indemnifying
party") agrees to indemnify, hold harmless, reimburse and defend iVillage it
officers and directors (referred to in this Section 7(b) as the "indemnified
party"), from and against any claim, suit, action, or other proceeding brought
against the indemnified party arising out of or in connection with (i) the
indemnifying party's breach of any representation, warranty, covenant or
obligation in this Agreement; or (ii) a claim that any content, material,
product, information or data provided by the indemnifying party that is posted
on the Armchair Site (including any material presented on any site on the
Internet, produced, maintained or published by the indemnifying party, but
excluding hyperlinks to sites on the Internet produced, maintained or
published by a third party) infringes in any manner, any copyright, patent,
trademark, trade secret or any intellectual property right of any third party.
The indemnifying party will pay any and all costs, damages, and expenses,
including, but not limited to, reasonable attorneys' fees and costs awarded
against or otherwise incurred by the indemnified party in connection with or
arising from any such claim, suit, action or other proceeding;
(c) Whenever any claim for indemnification arises under this Section
7, the indemnified party will promptly notify indemnifying party of the
claim and, when known, the facts constituting the basis for such claim and the
amount or an estimate of the amount of the liability arising therefrom. At its
option, the indemnified party may defend itself against any claim brought
against it that is subject to indemnification under this Section 7, in which
case indemnifying party will pay all reasonable attorneys' fees and costs thus
far incurred but will no longer be obligated to defend the indemnified party
against such claim (but will still be obligated to indemnify, hold harmless,
and reimburse the indemnified party with respect to such claim as provided in
Paragraph (a) and (b) above). The indemnifying party will not be obligated to
indemnify the indemnified party with respect to any claim settled or
compromised by the indemnified party and with respect to which the indemnified
party has exercised the foregoing option to defend itself unless the
indemnifying party has consented to the settlement or compromise of such claim
in writing, which consent will not be unreasonably withheld or delayed. In
each case in which the indemnified party does not exercise the foregoing
option, the indemnified party may require the indemnifying party to defend the
former against the claim(s) and to bear all costs and fees incurred in doing
so. In such event, the indemnified party may participate in defense of the
claim(s) by retaining its own counsel, whose fees and costs it then will pay,
and whether or not the indemnified party elects to participate in the defense,
the indemnifying party may not settle or compromise such claim(s) in a manner
which adversely affects the indemnified party without the latter's written
consent beforehand, which consent will not be unreasonably withheld or
delayed.
8. Non-Solicitation of Schwab Customers; Confidentialily and Publicity.
(a) iVillage will not (1) target or solicit individual, identifiable
customers of Schwab or any group of such customers by direct mail, fax,
E-mail, online advertising, cookie or identification-based automatic routing
to non-Schwab Web sites, or by similar means on behalf of any person or entity
that may reasonably be deemed to be engaged in
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providing securities brokerage or financial information or services in
competition with Schwab (a "Schwab Competitor"); (2) sell, license, disclose,
distribute or transfer to any third party a list consisting of individuals
known to iVillage to be Schwab customers, or any aggregate financial or
demographic information about individuals known to iVillage to be Schwab
customers, that identifies the individuals as customers of Schwab, whether
expressly or by direct implication. Schwab acknowledges and agrees that
iVillage may solicit and advertise to visitors to its Web sites so long as
iVillage does not solicit or advertise to visitors selected based in whole or
in part on such visitors being customers of Schwab on behalf of any Schwab
Competitor.
(b) Neither party (as such, the "Receiving Party") shall disclose to
any third party (other than its accountants, attorneys or other agents who
have a need to know such information), or use other than as specified in this
Agreement, any confidential information disclosed by the other party (as such,
the "Disclosing Party"), including but not limited to any information relating
to the Disclosing Party's customers (including their identities or any
aggregate financial, demographic or other information about them).
(c) Neither party will, without the prior written consent of the
other party, (1) disclose to any third party (other than such party's
accountants, attorneys, or other agents who have a need to know such
information) the terms and conditions of this Agreement; or (2) make any
public announcement regarding the existence of this Agreement.
(d) The parties agree that a breach of this Section 8 would
cause irreparable injury not compensable solely in money damages.
9. Limitations on Liability. The liability of either party for damages or
alleged damages hereunder, whether in contract, tort or any other legal theory
is limited to, and will not exceed the amounts to be paid by Schwab to
iVillage hereunder; provided, however, that these limitations of liability
will not apply to claims related to either party's indemnity obligations under
Section 7 or for breaches or alleged breaches of Section 8 of this Agreement.
10. Service and Support. iVillage will regularly monitor and take
reasonable steps to maintain the operation and performance of the Armchair Site.
iVillage will use its reasonable efforts to support increasing numbers of users
on the Armchair Site including operating sufficient numbers of servers for
reasonably anticipated levels of user traffic. iVillage will make contact
persons directly available to Schwab for technical inquiries via E-mail or
telephone. In addition:
a) iVillage will make contact persons directly available to Schwab
for technical inquiries via phone and/or email, as noted in the Customer
Service Exhibit B, which is attached hereto;
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b) Any customer inquiries involving brokerage accounts or securities
transactions will not be transferred or forwarded from iVillage directly to
Schwab. iVillage will refer the customer to contact Schwab;
c) For customer email messages, iVillage shall reply to the customer
email within 24 hours, instructing the customer to send an email to Schwab or
telephone Schwab as noted in the Customer Service Exhibit;
d) For customer telephone calls, iVillage shall refer the customer to
telephone Schwab at the phone numbers noted in the Customer Service Exhibit;
e) Schwab will make contact persons directly available to iVillage for
customer support inquiries via phone, as noted in the Customer Service
Exhibit. iVillage shall not transfer any customers to Schwab on this telephone
number; it is solely for iVillage staff support;
f) Customer Service hours of operation will be as indicated in the
Customer Service Exhibit;
g) Upon request, iVillage shall make available to Schwab Training,
Training Documentation, or Technical Documentation such as Error Messages, for
Customer Support; and
h) iVillage shall provide reasonable advance notice to Schwab of any
browser compatibility changes.
11. Miscellaneous.
(a) This Agreement will be governed by and construed in accordance
with the substantive laws of the United States and the internal laws of State
of California. The headings of the sections are for convenience of reference
only and will not affect the meaning or operation of this Agreement. The terms
and conditions of this Agreement are subject to all applicable laws and
regulations which are currently in effect or which may become effective during
the term of this Agreement. If any provision of this Agreement is considered
void, voidable, illegal, or invalid for any reason, such provision will be of
no force and effect only to the extent that it is so declared void, voidable,
illegal, or invalid. All of the provisions of this Agreement not specifically
found to be so deficient will remain in full force and effect. The parties
hereto, their successors and permitted assigns consent to the jurisdiction of
the courts of the State of California in respect to any legal proceeding that
may result from a dispute as to the interpretation or breach of this
Agreement. Schwab and iVillage are each independent contractors, and this
Agreement will not be construed as creating a joint venture, partnership,
franchise, employment or agency relationship between iVillage and Schwab. Each
party acknowledges that the arrangements contemplated in this Agreement are
non-exclusive, except with respect to the subject matter of this Agreement,
and that each party may enter into arrangements
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with third parties that are similar or identical to those contemplated in this
Agreement that are not in direct conflict this Agreement.
(b) The provisions of Sections 1(f), 3, 4, 7, 8 and 11 of this
Agreement will survive the termination or expiration of this Agreement.
(c) This Agreement (together with exhibits) constitutes the entire
agreement between the parties with respect to the subject matter hereof, and
supersedes and replaces all prior or contemporaneous understandings,
negotiations, or agreements, written or oral, regarding such subject matter.
Any amendment or other modification of this Agreement will be effective only
if in writing and signed by both parties. No term or provision of this
Agreement may be waived except by a written instrument duly executed by the
party against whom such or waiver is sought to be enforced. This Agreement may
not be assigned by either party, without the other party's prior written
consent (which will not be unreasonably withheld). Any purported assignment in
violation of this Section will be void. This Agreement will bind and inure to
the benefit of the parties and their respective successors or permitted
assigns.
(d) All notices, requests, demands and other communications under
this Agreement will be in writing and will be deemed to have been duly
delivered if delivered by hand or sent by prepaid registered or certified mail
or by telecopy or electronic mail (confirmed by concurrent written notice sent
by first class U.S. mail) addressed as follows (or to such other address as
may be designated by a party, in writing, pursuant hereto):
If to Schwab: If to iVillage:
Charles Schwab & Co., Inc. iVillage, Inc.
101 Montgomery Street 170 Fifth Avenue
San Francisco, California 94104 New York, New York 10010
Fax (415) 636-0089 Fax (212) 604-1933
Attention: Pamela Saunders Attention: Robert Levitan
with a copy to: with a copy to:
Enterprise Counsel - Electronic Brokerage Vice President Finance/Operations
Attention: Colleen McCall Attention: Steve Elkes
(e) This Agreement may be executed in any number of counterparts,
each of which will be deemed an original, but all of which together will
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
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iVILLAGE, Inc. CHARLES SCHWAB & CO., Inc.
By: /s/ Steve Elkes By: /s/ Pamela Saunders
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Its: Its: Vice President
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Electronic Brokerage
Date: Date: 12/19/97
--------------- --------------------
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EXHIBIT A
Sponsorship Activities, Promotions, Advertisements and Hyperlinks
1. Sponsorship Activities
(a) iVillage grants Schwab exclusive sponsorship of the Brokerage center and
the Mutual Fund center on the Armchair Site (the "Sponsorship Areas").
This exclusive sponsorship grants Schwab exclusive advertising for
brokerage services for the term of this Agreement and exclusive mutual
fund advertising in the first year of this Agreement. Other mutual fund
advertising will be permitted in year two and three but will be limited
to mutual fund families that participate in the Schwab Mutual Fund
OneSource offering, and other mutual fund families as mutually agreed
upon in good faith by the parties.
(b) During the term of the exclusive sponsorship, iVillage will not post
hyperlinks on the Armchair Site to other brokerage or mutual fund
companies (excluding permitted advertising) nor will it post content that
contains a rating or ranking of brokerage companies. The exclusive
sponsorship also prohibits iVillage from building any co-developed content
with, or content links to brokerage and mutual fund competitors or
competitor-branded Web sites from the Armchair Site, except as mutually
agreed upon in good faith by the parties.
(c) iVillage will provide Schwab with a prominent presence on the Armchair
Site home page in addition to providing Schwab presence in banner
advertisements and content pages.
(d) In sponsored or co-developed content, iVillage will use its best efforts
to portray Schwab as a provider of unbiased investment information
through third-party resources and/or academic investment research data
developed by Schwab. iVillage will also post information on the Armchair
Site and other iVillage Web sites about Schwab's investor education
events, such as Schwab in-branch seminars.
(e) Throughout the term of this Agreement, use its best efforts iVillage will
provide survey research results and data on user online investing
behavior and preferences and user feedback on Schwab through community
user interaction on an aggregate and/or anonymous basis.
(f) iVillage will provide ongoing consultation to Schwab throughout the term
of the Agreement on effective community building tools and activities.
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2. Content Links
At Schwab's request, iVillage will provide links from the Sponsorship Areas to
content on Schwab's Web site. The links will be accessed through Armchair Site
pages listing services available at Schwab's Web site including brief
descriptions of those services. Links discussed for the launch of the Schwab
sponsorship include, but are not limited to, the Retirement Planner, the
College Planner, the Guide to Understanding Market Cycles, Asset Allocation
Strategies and selected mutual fund content on Mutual Fund OneSource Online
including a SchwabFunds content link. Other content links from the Sponsorship
Areas mutually agreed upon by both parties may be developed throughout the
term of the Agreement.
3. Content Development, Sharing and Review
(a) iVillage and Schwab agree to jointly develop new content to reside on the
Sponsorship Areas. iVillage will assume web development responsibility for any
newly created content as summarized below. Other content mutually agreed upon
by both parties may be developed by iVillage throughout the term of this
Agreement in the Sponsorship Areas. Content jointly developed by Schwab and
iVillage may also be made available at Schwab's Web site at Schwab's
discretion.
(i) Ask the Experts Content. Schwab will provide content to
iVillage in the form of weekly answers to popular investing
questions submitted by iVillage users. Answers to these
questions will be provided by Financial Advisors selected by
Charles Schwab, Schwab's Investment Products and Research staff
and the SchwabFunds Portfolio Management group.
(ii) Advisor Source Content. At Schwab's request, iVillage will
include content on the Armchair Site describing Schwab's
Advisor Source offering along with a brief profile of the
financial advisors participating in the program. This content
area may link to Schwab for more information about this
program.
(iii) Schwab Branch Seminars. At Schwab's request, iVillage agrees
to develop and post content summarizing online investing
seminars available at Schwab branch offices and other Schwab
hosted educational events.
(iv) Schwab Investment Products and Research. At Schwab's request,
iVillage agrees to develop and post content on Schwab's mutual
fund analytical information produced by the Investment
Products and Research staff including the online posting of
their newsletter.
13
<PAGE>
(b) In addition to Schwab-branded and Schwab/iVillage co-branded content,
Schwab has the right, but not the obligation, to review and approve in
advance all content that is to be posted in the Brokerage or Mutual Fund
Centers that could reasonably be attributed to Schwab. iVillage will
deliver such content to Schwab at least two business date in advance of
its scheduled posting date. If Schwab does not provide comments within
two business days after iVillage has delivered it, iVillage may post the
content. After content is posted, Schwab has the right, but not the
obligation, to request iVillage to modify or remove such content if
Schwab believes that such content could reasonably be attributed to it.
(c) In addition, Schwab has the right, but not the obligation, to request
that any allegedly offending content posted on the Armchair Site, other
than messages from users appearing on message boards or in chat rooms and
banner advertisements, be removed.
(i) If iVillage refuses to remove the allegedly offending content
and Schwab reasonably believes that such content could cause
Schwab to be viewed as violating any law or regulation or if
Schwab reasonably believes that such content incorrectly
suggests an affiliation between, or a Schwab-endorsement of, any
third party or that party's products or services, then Schwab
may immediately terminate this Agreement without breach or
penalty;
(ii) If iVillage refuses to remove the allegedly offending content
and the content is not subject to Paragraph 3(c)(i) of this
Exhibit A, but Schwab believes such content is outside the
scope of iVillage's Mission Statement with respect to the
Armchair Site, then Schwab may terminate the Agreement without
breach or penalty by giving ninety (90) days notice to
iVillage.
4. Live Events on the Armchair Site
(a) Subject to iVillage's consent (which shall not be unreasonably withheld),
iVillage will permit Schwab to host and/or sponsor live investment forums on
the Armchair Site. For those investment forums specifically developed and
hosted by Schwab, Schwab owns the right of all forum registration information
including email addresses of users requesting future Schwab forum
information.
(b) Schwab and iVillage may also jointly develop web-based investing courses
at the Armchair Site. Any courses developed by Schwab will be specifically
Schwab branded and courses developed by iVillage will be branded according to
their preference.
(c) Any live events jointly developed by Schwab and iVillage may also be made
available at Schwab's Web site at Schwab's discretion.
14
<PAGE>
5. Armchair Content Sharing for Schwab's Web Site
Without additional cost to Schwab, the parties will mutually agree in good
faith on selected content areas within the Armchair Site that will be placed
on a custom site that Schwab may link to from its Web site at its discretion.
Advertising and branding on the custom site will be limited to Schwab except
that Armchair Millionaire branding as it exists on the Armchair Site will be
permitted.
6. Reporting Requirements
So that Schwab may monitor market performance and make program adjustments,
iVillage will provide to Schwab timely and accurate reports every thirty (30)
days as follows:
(a) Total number of page views on a Schwab sponsored area;
(b) Number of "hyperlink clickthroughs" on Schwab content;
(c) Number of clickthroughs to Schwab from a banner advertisement; and
(d) iVillage will use its best efforts to provide any user feedback on
Schwab obtained from the message boards and chat areas on the
Armchair Site.
So that iVillage may monitor new Schwab account openings, Schwab will provide
to iVillage timely and accurate reports every thirty (30) days of new account
openings related to the Armchair Site. If iVillage reasonably believes that
such reports may be inaccurate, Schwab will permit iVillage to audit such
reports.
7. Advertising Impressions and Marketing Campaigns
(a) iVillage guarantees Schwab a minimum of [*] impressions
during each year of this Agreement on the Armchair Site delivered in
the form of promotional banner advertisements. These banner
impressions may appear in the Armchair Site or other iVillage Sites
as mutually agreed upon in good faith by the parties.
(b) iVillage will include Schwab in its print marketing campaigns and
online marketing activities as mutually agreed upon in good faith by
the parties.
8. Performance Objectives
(a) During the term of the Agreement, the parties' expect Schwab to
obtain the following number of new accounts ("Account Goals") a
result of the activities contemplated hereunder on the Armchair
Site:
15
[*] Confidential treatment requested.
<PAGE>
(i) [*] new accounts in the first year following the Launch Date;
(ii) [*] additional new accounts in the second year following the
Launch Date;
(iii) [*] additional new accounts in the third year following the
Launch Date;
(iv) [*] new accounts in the first six months following the Launch Date.
(b) If Schwab's Account Goals are not met Schwab shall be entitled to a fee
reduction or cash payment as follows:
Unmet Account Goals Percentage Year One Year Two Year Three
------------------------------ -------- -------- ----------
[*] percent $[*] $[*] $[*]
[*] percent $[*] $[*] $[*]
[*] percent $[*] $[*] $[*]
[*] percent $[*] $[*] $[*]
[*] percent $[*] $[*] $[*]
[*] percent $[*] $[*] $[*]
[*] percent $[*] $[*] $[*]
[*] percent $[*] $[*] $[*]
[*] percent $[*] $[*] $[*]
[*] percent $[*] $[*] $[*]
(c) If iVillage owes Schwab a fee reduction or cash payment pursuant to
Section 5(d) or (e) of the Agreement:
(i) in excess of [*] for the first year of this Agreement, such amount may
be reduced by a maximum credit of [*] if iVillage delivers at least
30 million banner advertising impressions in the year preceding the
first-year Calculation Date;
(ii) in excess of [*] for the second year of this Agreement, such amount
may be reduced by a maximum credit of [*] if iVillage delivers at
least 30 million banner advertising impressions in the year preceding
the second-year Calculation Date;
(iii) in excess of [*] for the third year of this Agreement, such amount may
be reduced by a maximum credit of [*] if iVillage delivers at least 30
million banner advertising impressions in the year preceding the
third-year Calculation Date.
16
[*] Confidential treatment requested.
<PAGE>
(d) If iVillage fails to deliver [*] impressions in any year
and the fee reduction or cash refund it owes to Schwab exceeds
the amount stated in Paragraph 8(c) of this Exhibit A for that year,
then iVillage shall be entitled to a partial credit of any fee
reduction or cash payment due to Schwab for actual impressions
delivered based upon a [*] cost per thousand impressions. iVillage is
not entitled to any credit against any fee reduction or cash payment
owed to Schwab if it delivers less than 18 million impressions in the
year preceding the Calculation Date.
(e) Any fee reduction or cash payment owed to Schwab may be further
reduced by [*]%, if Schwab is unable to demonstrate to iVillage that it can
accurately track online account opening activity at its Web site resulting from
clickthroughs to Schwab's Web site from the Armchair Site.
8. Schwab Promotional Activities
During the term of the Agreement, Schwab will provide promotional support for
the Armchair Site through a variety of online and off-line marketing
activities, such as customer collateral, online banner and links from other
interactive mediums.
17
[*] Confidential treatment requested.
<PAGE>
Exhibit B
Customer Service Exhibit
(1) iVillage Service Support Escalation:
In the event that Schwab Customer Service needs to escalate a question or
issue to iVillage, iVillage shall provide a staffed phone number for use by
the Schwab Help Desk. The Help Desk shall use this number for such issues as
escalating customer reports of iVillage outages or other issues. iVillage
shall respond with available information, including the status of any
technical issues, so that the Help Desk can alert Schwab Customer Reps.
Phone number: (iVillage to fill in)
------------------------------------
Hours of Operation:
-------------------------------
Pager number:
------------------------------------
Hours On Call:
-----------------------------------
(2) Schwab Customer Phone Calls and Email:
If a customer calls or emails iVillage an inquiry that pertains to any Schwab
accounts or services, or if a user calls or emails iVillage with an inquiry
regarding investing or brokerage activities, iVillage will refer the customer
or user to contact Schwab directly. iVillage shall not reply to the inquiry on
Schwab's behalf refer any user to another securities brokerage firm or other
investment services provider.
o Email: iVillage shall send a reply to the customer email within 24 hours,
instructing the customer to contact Schwab directly, and will include
Schwab Contact Information as appropriate.
o Phone: iVillage shall instruct customers to contact Schwab directly via
the appropriate Schwab Contact Information.
Schwab Contact Information:
o By Telephone:
o General Inquiries: For additional information on Schwab's products
and services, or to sign up your Schwab account for web access
through Schwab's Web site at www.schwab.com, please call our 24 hour
Customer Service: 1-800-435-4000
o U.S. Technical Support: For assistance with Schwab's Web site
(www.schwab.com) or software, please call
1-800-334-4455
Hours of Operation:
Mon. - Fri. 6am - 7pm PST
Sat. - Sun. 8am - 4:30pm PST
18
<PAGE>
o e.Schwab: For more information on e.Schwab, please call
1-800-e.Schwab (1-800-367-4922)
Hours of Operation:
Mon. - Fri. 6am - 7pm PST
Sat. - Sun. 8am - 4:30pm PST
o For customers outside of the U.S.: For general inquiries and
technical support for customers outside of the U.S., please call
1-602-852-3500
Hours of Operation:
Mon. - Fri. 9am - 6pm, EST
o By email
o Schwab customers may email Schwab Customer Service by logging on
to the Customer Center on the Schwab Web site at www.schwab.com
Web site. To set up your Schwab Account for Web access, please
call the General Inquiries phone number above. Customer emails
will be responded to within approximately 24 hours.
(3) Schwab Service Support:
If iVillage Customer Service needs to contact Schwab for assistance with
Customer Service, the iVillage Customer Service Escalation Contact Person may
call the Schwab Customer Service Help desk at 1-888-362-7778. This contact is
for iVillage to Schwab Customer Service use only; no customers shall be given
the number or transferred to Schwab on this number.
Phone number: 1-888-362-7778
Hours of Operation: Mon. - Fri. 6am - 7pm PST
Sat. - Sun. 8am - 4:30 pm PST
(4) Hours of Operation:
Schwab Customer Service Hours of Operation are as noted in section (2) above.
iVillage Customer Service Hours of Operation shall be:
Phone Support (Customers):
--------------------------
Email support (Customers):
--------------------------
Email response time goal: (e.g. will reply to emails
--------------------------
within 24 hours of receipt).
19
<PAGE>
ADDENDUM
--------
THIS ADDENDUM to that certain Online Services Agreement (Agreement")
dated December 19, 1997, by and between iVillage, Inc. ("iVillage") and Charles
Schwab & Co., Inc. ("Schwab") is made as of June 29, 1998, and is incorporated
into and made a part of the Agreement.
WHEREAS, in Exhibit A, Section 4(a) of the Agreement the parties
contemplated that subject to iVillage's consent, Schwab may sponsor and/or host
live Investment Forums ("Investment Forums") on the Armchair Site;
WHEREAS, Schwab wishes to commence the Investment Forums and iVillage
has agreed to allow Schwab to hold the Investment Forums on the Armchair Site
during the term of the Agreement.
NOW THEREFORE, THE PARTIES AGREE AS FOLLOWS WITH RESPECT TO THE
INVESTMENT FORUMS ON THE ARMCHAIR SITE:
1. At least once each month, or more frequently if the parties mutually
agree to do so, iVillage shall provide to Schwab, without additional
charge, an online auditorium on the Armchair Site that will enable
Schwab to hold the Investment Forums" - -, which are live, moderated,
interactive events organized and sponsored by Schwab (the "Investment
Forums"). The online auditorium will accommodate a commercially
reasonable number of unique, concurrent attendees, subject to server
capacity and technological capabilities. Schwab shall have sole
discretion in selecting all Forum topics, guests and moderators subject
to iVillage's reasonable approval. Schwab, or a moderator selected by
Schwab, shall be entitled to host the Investment Forums. Unless
approved in advance by Schwab, iVillage will not display any
advertising in the Schwab event auditoriums. Schwab may post
promotional dynamic messages relating to its services within the Schwab
event auditorium during the Investment Forums. At the end of each
Forum, iVillage will display messages encouraging attendees to visit
the Investor Center on the Armchair Site, the Schwab site or other
sites designated by Schwab As between Schwab and iVillage, Schwab shall
own all content related to the Investment Forums, including but not
limited to, copyright or other intellectual property rights of all
prepared text, questions, answers or transcripts of the Investment
Forums ("Schwab Forum Content"), except that iVillage may make use of
reasonable excerpts of the Schwab Forum Content subject to Schwab's
reasonable approval.
2. The online auditorium technology platform supplied by iVillage to
Schwab will provide Schwab and its host the opportunity to field and
screen questions of attendees and attendees an opportunity to interact
with the host of the Investment Forums. iVillage also agrees to furnish
to online users, through download capabilities or otherwise, all
software and technical support needed to enable users to attend such
Investment Forums. iVillage will include on each user's "entry page" to
each Forum a release and disclosure, the wording of which will be
mutually agreed upon in good faith by the parties.
3. iVillage expects, but is not obligated, to promote the Investment
Forums on various areas of the Armchair Site, including, but not
limited to, the Investor Center, and on
<PAGE>
other iVillage Web sites. All such promotions will mention that the
Investment Forums are part of a series sponsored by Schwab and will
direct users to a page that describes the upcoming event(s) and
encourages users to download the software needed to enable users to
attend such Investment Forums.
4. iVillage will post and archive each Forum transcript on the Armchair
Site within two (2) business days after the transcript is provided by
Schwab and allow visitors to the Site to view the transcripts. iVillage
will also post a topical index of all Investment Forums and allow
visitors to view archived transcripts from prior Investment Forums;
5. So that Schwab may monitor market performance and make program
adjustments, iVillage will provide to Schwab timely and accurate
reports as follows:
(a) Total number of non-unique attendees at each Forum within five
(5) business days following the Forum;
(b) Total number of page views of each Forum transcript posted
after a Forum, with a breakdown by Forum event transcript
viewed;
(c) Total number of Forum "entry page" views, from the Investor
Center and any other areas where the Forum "entry page" is
linked.
6. During the term of the Agreement, iVillage will not permit any other
party to hold Investment Forums or other events on the Armchair Site if
such party is reasonably deemed to offer securities brokerage,
investing or mutual fund services in competition with Schwab. Further,
iVillage will not permit Investment Forums or events by any party on
topics related to securities brokerage, investing or financial services
during any portion of the time that Schwab is holding such an event on
the Armchair Site.
7. The terms and conditions of the Agreement remain in full force and
effect.
IN WITNESS WHEREOF, the parties have executed this Addendum as of the
date first above written.
iVillage, Inc. Charles Schwab & Co., Inc.
By: /s/ Steve Elkes By: Illegible
------------------------- --------------------------------------------
Its: V.P. Finance Its: VP Electric Brokerage Business Development
------------------------- --------------------------------------------
Date: 6/30/98 Date: 6/29/98
------------------------- --------------------------------------------
<PAGE>
ADDENDUM NO. 2
--------------
THIS ADDENDUM to that certain Online Services Agreement ("Agreement')
dated December 19, 1997, by and between iVillage, Inc. ("iVillage") and Charles
Schwab & Co., Inc. ("Schwab") is made as of June 29, 1998, and is incorporated
into and made a part of the Agreement.
WHEREAS, iVillage provides information related to planning for
educational expenses to visitors to its proprietary Web sites, including but not
limited to, its ParentSoup(Registered) Site (url:http://www.parentsoup.com)
("Content Areas");
WHEREAS, Schwab has developed and owns certain content and software
related to its College Saver(Trademark) Program, including, but not limited
to, its College Saver Online Planning Tool (the "CS Tool"). The CS Tool is
comprised of two elements: the Calculations (including assumptions) and the
Presentation;
WHEREAS, iVillage wishes to license the CS Tool for use by visitors to
its Content Areas and Schwab is willing to license use of the CS Tool to
iVillage for this purpose subject to the terms and conditions set forth below.
NOW THEREFORE, the parties agree as follows with respect to use of the
CS Tool on the Content Areas:
1. During the term of the Agreement, Schwab hereby grants iVillage a
worldwide, nonexclusive, revocable, nontransferable fully-paid up and
royalty-free license to use and distribute to end users of the Content
Areas the object code version of the CS Tool and to reproduce copies of
the CS Tool only to the extent necessary to accomplish the foregoing.
2. Subject to the terms set forth in Sections 1, 2 and 3 of the Agreement,
iVillage will include Schwab Marks in each Content Area in which the CS
Tool is used. Schwab shall have the right to approve the location of
the CS Tool and the Schwab Marks within the Content Areas.
3. iVillage may, in its discretion and at its own expense, change only the
Presentation element of the CS Tool to be consistent with the Content
Areas.
4. At is own expense, iVillage will perform updates to and modifications
of the Calculations element of CS Tool on the Content Areas as they are
provided by Schwab.
5. iVillage will promote the CS Tool and the Content Areas through
hyperlinks or banner advertisements from other areas of the iVillage
Web sites.
6. Any new accounts obtained by Schwab through the use of the CS Tool in
the Content Areas will be counted towards the Account Goals set forth
in paragraph 8 of Exhibit A to the Agreement.
<PAGE>
7. iVillage's reporting obligations as set forth in Section 6 of Exhibit A
of the Agreement shall also apply to end user use of the CS Tool in the
Content Areas.
8. The CS Tool, any Informational Material or Schwab Content that appears
in the Content Areas is Schwab's exclusive property and may not be
sold, licensed, copied, distributed or divulged, except as provided in
Section 1 of this Addendum or elsewhere in the Agreement, without
Schwab's prior written permission.
9. THE CS TOOL IS PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND. TO THE
MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, SCHWAB AND ITS SUPPLIERS
DISCLAIM ALL WARRANTIES, CONDITIONS AND REPRESENTATIONS, EXPRESS OR
IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR
A PARTICULAR PURPOSE OR NONINFRINGEMENT.
10. Capitalized terms used but not defined herein shall have the meanings
ascribed thereto in the Agreement.
11. The terms and conditions of the Agreement remain in full force and
effect.
IN )WITNESS WHEREOF, the parties have executed this Addendum as of the date
first above written.
iVillage, Inc. Charles Schwab & Co., Inc.
By: /s/ Steve Elkes By: Illegible
------------------------- --------------------------------------------
Its: V.P. Finance Its: VP Electric Brokerage Business Development
------------------------- --------------------------------------------
Date: 6/30/98 Date: 6/29/98
------------------------- --------------------------------------------
<PAGE>
Amendment Number One
to
Online Services Agreement
This First Amendment ("First Amendment") to that certain Online
Services Agreement dated December 19, 1997 ("Agreement"), by and between
iVillage, Inc. ("iVillage") and Charles Schwab & Co., Inc. ("Schwab") is made
effective as of December 19, 1997 ("Amendment Effective Date"), and is
incorporated into and made a part of the Agreement.
1. The following replaces subparagraphs 9c) and (d) of Paragraph 8
("Performance Objectives"), Exhibit A of the Agreement:
8. Performance Objectives
(c) If iVillage owes Schwab a fee reduction or cash payment pursuant to
Section 5(d) or (e) of the Agreement, a maximum rebate may apply:
(i) if iVillage delivers at least [*] banner
advertising impression in the year preceding the
first-year Calculation Date, the maximum rebate that
will be due to Schwab for unmet Account Goals is [*],
in the form of cash or credit.
(ii) If iVillage delivers at least [*] banner advertising
impressions in the year preceding the second-year
Calculation Date, the maximum rebate that will be due to
Schwab for unmet Account Goals is [*], in the form of
cash and credit.
(iii) if iVillage delivers at least [*] advertising
impressions in the year preceding the third-year
Calculation Date, the maximum rebate that will be due
to Schwab for unmet Account Goals is [*], in the form
of cash or credit.
(d) If iVillage fails to deliver [*] in any year and the fee reduction or
cash refund it owes Schwab exceeds the amount stated in Paragraph 8(c)
of this Exhibit A for that year, then iVillage shall be entitled to a
partial credit of any fee reduction or cash payment due to Schwab for
actual impressions delivered exceeding [*] based upon a [*] cost
per thousand impressions, up to a maximum fee reduction or cash payment
owed to Schwab of [*], with a limitation that the applied credit will
reduce the maximum fee reduction or cash payment owed to Schwab of [*].
iVillage is not entitled to any credit against any fee reduction or
cash payment owed to Schwab if it delivers less than [*] impressions in
the year preceding the Calculation Date.
2. Capitalized terms used but not defined herein shall having the meaning
ascribed to them in the Agreement.
[*] Confidential treatment requested.
<PAGE>
3. Except as amended herein, the remaining terms and conditions of the
Agreement remain in full force and effect.
IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed as of the Amendment Effective Date.
iVILLAGE, INC. CHARLES SCHWAB & CO., INC.
By: /s/ Steve Elkes By: /s/ [ILLEGIBLE]
--------------------------- ---------------------------
Its: Vice President Its: VP Electric Brokerage
--------------------------- ---------------------------
Date: 6/29/98 Date: 6/29/98
--------------------------- ---------------------------