Promotion Agreement - Snap! LLC and iVillage Inc.
SNAP PROMOTION AGREEMENT
------------------------
(iVillage)
This Promotion Agreement (the "Agreement") is dated as of November 6, 1998
between Snap! LLC, with its principal place of business located at One Beach
Street, San Francisco, California 94111 ("Snap"), and iVillage, Inc., with
its principal place of business located at 170 Fifth Avenue, New York, NY
10010 (the "Company"). Pursuant to this Agreement, Snap will provide various
promotions to the Company to assist the Company in promoting its network of
Internet sites and related services. Accordingly, the parties hereby agree
as follows:
1. Background.
1.1 The Company. The Company operates a network of Internet
sites including but not limited to content pertaining to
parenting, work and health, including the site located at
http://www.ivillage.com.
1.2 Snap. Snap operates a search and aggregation "portal" site
on the World Wide Web.
2. Definitions.
"Above the Fold" means that a particular item on a Web page is
viewable on a computer screen at an 800 x 600 pixels resolution
when the User first accesses such Web page, without scrolling down
to view more of the Web page.
"Agreed Channels" means all of the Targeted Impressions plus up to
five additional channels, as mutually agreed. Such additional
channels shall initially be Business & Money, Computing, Travel,
Education and Entertainment.
"Company Marks" means any trademarks, trade names, service marks
and logos that may be delivered by the Company to Snap expressly
for inclusion in the Promotions.
"Company Sites" means the Internet sites operated by the Company and
promoted on Snap through the Promotions, including the Internet sites
expressly referenced in Section 3, together with any mirror
sites, co-branded sites and successors thereto.
"Content Portal" means an area on the front page of a Resource
Center that is designed to be programmed with content from a third
party content provider such as the Company.
"Family Center" means a Resource Center within Snap's Kids & Family
Channel that is focused on family issues and is linked to directly
from the front door of the Snap Site and from within the Kids &
Family Channel.
"Health Center" means a Resource Center within Snap's Health
Channel, currently referred to as the "Guide to Better Health,"
that is focused on health issues and is linked to directly from the
front door of the Snap Site and from within the Health Channel.
<PAGE>
"Impression" means the display of a Promotion for any Company Site
on any Snap Site in accordance with this Agreement.
"Parenting Center" means a Resource Center within Snap's Kids &
Family Channel that is focused on parenting issues and is linked to
from within the Kids & Family Channel and from the parenting
section of Snap's Living Channel.
"Products" means any product or service sold on or through the
Company Sites.
"Promotions" means banners, buttons, text links, branded text,
Content Portals, links within email newsletters distributed by Snap
and other promotions displayed on any Snap Site, including the
specific types of promotions referenced in Section 3.
----------
"Referral Users" are any users that access the Company Site through a
Promotion. All Referral Users will be tagged and tracked by the Company
during the first and any subsequent visit to the Company Site via the
Snap Site for the purpose of revenue sharing as referenced in Section
5.3.
"Resource Center" means a collection of related Web pages, links,
portals and other resources on the Snap Site focused on a
particular subject matter.
"Snap Box" means a search box with Snap's full Internet search
functionality and containing icons for and links to the Snap Site.
Each Snap Box will take users directly to the Snap Site to view the
results of their search query.
"Snap Results Page" means a successful search results page on the
Snap Site that is served by Snap in response to a search inquiry
through a Snap Box on the Company Site.
"Snap Marks" means any trademarks, trade names, service marks and
logos delivered by Snap to the Company expressly for inclusion on a
Company Site.
"Snap Site" means the search and aggregation "portal" site operated by
Snap at http://www.snap.com, together with any co-branded editions of
such site that have been or may be developed for Snap's third party
distribution partners and licensees.
"Targeted Impressions" means (a) any Impressions within the Kids &
Family, Health, Living, or Shopping Channels; (b) other Impressions
that appear in context within editorial content or tools provided
by the Company (for example, a "calorie counter" feature); (c)
Impressions within email newsletters distributed pursuant to
Section 3.4; (d) Impressions within My Snap!, as contemplated by
Section 3.5; and (e) Keyword banner Impressions delivered pursuant
to Section 3.6.
"Term" means the term of this Agreement, as set forth in Section 5.
2
<PAGE>
"User" means a user of the Snap Site.
3. Promotions.
3.1 Promotions within the Health Channel.
3.1.1 During the Term, the Company will have the
exclusive right to program the Content Portal on
the front page of the Health Center with health
related content from its Better Health site or
any successor Web site thereto ("Better Health"),
as well as health related content from the
ivillage.com Site, subject to the reasonable
discretion of a Snap producer.
3.1.2 Subject to the mutual agreement of the parties,
to the extent Snap reasonably deems it to be
appropriate editorially, Snap may include other
Promotions for Better Health throughout the
Health Center and may provide additional
opportunities for the Company to provide content
from the Better Health site for display within
the Health Channel.
3.1.3 Notwithstanding the foregoing or anything herein
to the contrary, the parties mutually agree that
the Company's content will appear in the Health
Center 31 days after Snap gives notice to the
content providers currently in such center, which
notice will be given within 10 days following the
execution of this Agreement.
3.2 Promotions within the Kids and Family Channel
3.2.1 During the Term, the Company will have the
exclusive right to program the Content Portals on
the front pages of the Family Center and the
Parenting Center with content from its Parent
Soup site, subject to the reasonable discretion
of a Snap producer.
3.2.2 Subject to the mutual agreement of the parties,
to the extent Snap reasonably deems it to be
appropriate editorially, Snap may include other
Promotions for Parent Soup throughout the Family
Center and the Parenting Center and may provide
additional opportunities for the Company to
provide content from the Parent Soup site for
display on the Snap Site.
3.3 Promotions for iBaby. Snap shall, subject to Snap's
discretion include Promotions for the Company's iBaby site
throughout the Kids and Family, Health, Living and
Shopping Channels, and Snap may provide additional
opportunities for the Company to provide content from the
iBaby site for display on the Snap Site, including working
with Snap to create a Baby Shop.
3.4 Newsletters. If Snap develops an area where Users can
register for e-mail newsletters from third party content
providers, Snap will provide the Company a reasonable
opportunity to offer a newsletter to Users through such
area.
3
<PAGE>
3.5 Promotions for My Snap!. The Company's Better Health and
Parent Soup content and links will be included as an
initial default option for Snap's "My Snap!" personalized
home page, meaning that initial default links for Better
Health and Parent Soup will automatically appear on the My
Snap! start page for each first time User. All Company
content linked to from within My Snap! will be hosted in
its entirety by Snap!.
3.6 Keyword Banners. The Company will receive [*]% of the
banner advertisements served on search results pages that
result from searches that include any of the 30 search
terms identified in Exhibit A.
---------
3.7 Best Labels. To the extent Snap deems it to be appropriate
editorially, links to Company Sites included within Snap
search results will include a "Best" editorial label.
3.8 Snap may provide standard Promotions throughout the Snap Site
in an amount sufficient to meet the minimum impressions in
Section 3.9. The Company may request any reasonable
reallocation of the location and type of the Promotions
subject to Snap's then-current inventory availability. Snap
shall not charge the Company any extra fees for such requested
reallocations of Promotions if they are equivalent in value to
those that would otherwise be provided by Snap hereunder.
3.9 Minimum Impressions.
3.9.1 During the first year of the Term, Snap will
deliver a total of at least [*] Impressions. Snap
will deliver [*] additional Impressions at no
additional charge on a run-of-site basis.
3.9.2 During the second year of the Term, Snap will
deliver a total of at least [*] Impressions. Snap
will deliver [*] additional Impressions at no
additional charge on a run-of-site basis.
3.9.3 In each year of the of the Term, at least [*]% of
the minimum number of Impressions will be
Targeted Impressions. Of the remaining minimum
number of Impressions, at least half will be
displayed within Agreed Channels. The remaining
Impressions may be untargeted and may appear
anywhere within the Snap Site (for example,
run-of-site banner advertisements).
Notwithstanding these minimum requirements, Snap
will endeavor to deliver a larger percentage of
Targeted Impressions during the Term, subject to
Snap's discretion.
3.9.4 If Snap does not deliver the required number of
Impressions during any year of the Term, Snap
will have an additional three months to deliver
such Impressions (together with any other
Impressions otherwise required during such three
month period hereunder) on the Snap Site. Such
Impressions delivered during this three month
period shall be allocated to the appropriate
category, (i.e. targeted or untargeted) to
fulfill the impressions guarantee pursuant to
Section 3.9.3.
4
[*] Confidential treatment requested.
<PAGE>
3.9.5 If Snap does not deliver the required number of
Impressions during the additional three month
period described in Section 3.9.4, Snap will have
a second three month period to deliver such
Impressions (together with any other Impressions
otherwise required during such three month period
hereunder) on the Snap Site or any other Internet
site operated by CNET, Inc. or the National
Broadcasting Company, Inc. or their affiliates,
subject (in the case of sites other than the Snap
Site) to the Company's prior consent, which shall
not be unreasonably withheld, and provided that
such substituted Impressions are substantially
equivalent in value.
4. Exclusivity.
4.1 Content provided by On Health, Women.com and Oxygen
(individually, a "Competitor") will not constitute, in the
aggregate, more than [*]% of the total content provided on
the front page of the Health Center; the aforementioned
notwithstanding, each Competitor may provide not more than
[*]% of the total content on that page. In addition Snap
will agree not to receive any payment for such content.
Promotions for On Health, Women.com and Oxygen will not
constitute, in the aggregate, more than [*]% of the total
number of Promotions displayed within the Health Center of
Snap.
4.2 Content provided by Home Arts and Oxygen (individually, a
"Competitor") will not constitute, in the aggregate, more
than [*]% of the total content provided on the front page
of the Family Center or the Parenting Center; the
aforementioned notwithstanding, each Competitor may
provide not more than [*% of the total content on that
page. In addition Snap will agree not to receive any
payment for such content. Promotions for Home Arts and
Oxygen will not constitute, in the aggregate, more than
[*]% of the total number of Promotions displayed on the
front page of the Family Center or the Parenting Center.
4.3 For purposes of this Section 4, the percentage of content
provided on a page will be measured based on the total
area of the page on which such content appears. In the
event that Snap plans to offer any Competitor an editorial
or promotional opportunity, other than standard media buys
that are up to three months, or aggregation and selection
of content, provided such content is not paid for, in
connection with the Health Center, Family Center or
Parenting Center, Snap agrees to provide the Company with
such opportunity first Notwithstanding the foregoing,
Company shall, at all times during the Term of this
Agreement, be the preferred provider of content and
promotions throughout those areas of the Snap Site which
are set forth herein, the Health Center, Family Center and
Parenting Center.
5. Payments.
5.1 First Year. The Company will pay Snap a total of
$[*] with respect to the first year of the Term, as
follows:
5
[*] Confidential treatment requested.
<PAGE>
5.1.1 The Company will pay Snap a one time development
fee of $[*] for content integration payable
within five days after execution of this
Agreement;
5.1.2 The Company will pay Snap an annual slotting fee
of $[*] for carriage of the Promotions within
the Snap Site, payable in twelve equal monthly
installments, within 30 days of each month; and
5.1.3 The Company will pay Snap a partnership fee of
$[*], payable in the following installments
by the fifth day of each calendar month:
5.1.3.1 $[*] per month during months 1-6
of the Term
5.1.3.2 $[*] per month during months 7-12
of the Term
5.2 Second Year. The Company will pay Snap a total of
$[*] with respect to the second year of the Term, as
follows:
5.2.1 The Company will pay Snap an annual slotting fee
of $[*] for carriage of the Promotions within
the Snap Site, payable in twelve equal monthly
installments, within 30 days of each month; and
5.2.2 The Company will pay Snap a partnership fee of
$[*] payable in equal monthly
installments of $[*] by the fifth day of
each calendar month.
5.3 Revenue Sharing. The Company will pay to Snap an amount
equal to [*]% of all gross margin earned by the Company
from sales made through the Company's iBaby site to
Referral Users. Such revenue sharing will be payable
monthly, simultaneously with delivery of the monthly
reports referenced in Section 8.2, which will support the
Company's calculation of the required payment for the
preceding month.
5.4 Required payments hereunder will be made by check or wire
transfer of immediately available funds as reasonably
directed by Snap.
5.5 Notwithstanding the foregoing: if Snap has not delivered:
(i) [*] impressions on or before the date that is
six months from this Agreement then Snap and the Company
will meet in good faith within 30 days of that time to
re-negotiate the agreement; if no agreement is reached
after that time, the Company may terminate the agreement,
or (ii) [*] impressions (based on the proportions
described in section 3.9 including the additional
impressions as referenced in section 3.9.1 and section
3.9.2.), on or after the date that is twelve months from
the date of this agreement the Company may terminate the
agreement.
5.6 Snap Results Pages. Snap will pay the Company a standard
monthly fee based on the daily average number of Snap
Results Pages delivered to users. Such fee will be
calculated as follows: (1) divide the total number of Snap
Results Pages for the
6
[*] Confidential treatment requested.
<PAGE>
month by the number of days in the month, (2) divide the
result by [*], (3) multiply the result by the appropriate
Guaranteed Daily CPM as set forth below, and (4) multiply
the result by the number of days in the month. For
example, if the Company's Snap Box produces a total of
[*] Snap Results Pages for June, the monthly fee for
June will be calculated by the following formula: ((([*]
/ [*]) / [*]) * $[*]) = $[*] = $[*]. Thus, Snap will
pay the Company $[*] for [*] Snap Results.
Average Number of
Daily Snap Results Pages Guaranteed Daily CPM
------------------------ --------------------
[*] $[*]
[*] $[*]
[*] $[*]
[*] $[*]
[*] $[*]
[*] $[*]
6. Design of the Promotions and Operation of the Company Site and Snap
Site
6.1 Snap and the Company will cooperate in good faith to
create an "implementation team," which will include an
account manager designated by Snap and an appropriate
representative of the Company, to oversee the creation and
delivery of the Promotions contemplated by this Agreement.
6.2 The Company will design any graphics and other materials
required for the Promotions and will supply digital copies
of such materials to Snap. Such materials will be designed
and delivered in accordance with Snap's technical and
editorial guidelines as defined in Exhibit B, as may be
changed from time to time and communicated by Snap to the
Company. Snap will provide reasonable assistance to the
Company in connection with the design and delivery of such
materials.
6.3 On each page of a Company Site to which Users are linked
from the Promotions, the Company will display a button or
other graphical link to be provided by Snap, which links
back to the default Snap Site. All such links on the
Company Sites will be displayed Above the Fold. Snap
agrees not to specifically target (separately from the
general database of Snap Users) any Users who access the
Snap Site through such links.
6.4 Both parties will be responsible for ensuring that each
URL provided to the other party for use as set forth in
this Agreement, takes the User to the appropriate area
within the respective site and that each party's site
functions with reasonable reliability and in a
commercially reasonable manner throughout the Term. In
particular, both parties agree that each party's
respective site will comply with the following performance
standards throughout the Term:
7
[*] Confidential treatment requested.
<PAGE>
6.4.1 Each party's site will be operational and fully
functional in all material respects (i.e. capable
of displaying information and conducting
transactions as contemplated in the ordinary
course of business) at least 97% of the time
during any 30 day period.
6.4.2 The average time required to start displaying the
HTML on a page of a party's site after a link
from the other party's shall not exceed a daily
average of three seconds, and the average time
required to deliver an entire page of a party's
site over the open Internet shall not exceed a
daily average of six seconds. For measurements
required in this Paragraph, both parties may
assume standard T1 connectivity to the Internet.
6.4.3 Without limiting the effect of Paragraphs 6.4.1
and 6.4.2 above, the Company shall provide to
Users coming to the Company Sites from the
Promotions at least the same level of service as
is offered to Users coming directly to such
Company Sites.
6.4.4 The Company Sites e shall not, to the best of the
Company's knowledge: (a) contain defamatory or
libelous material or material which discloses
private or personal matters concerning any
person, without such person's consent; (b) permit
to appear or be uploaded any messages, data,
images or programs which are illegal, contain
nudity or sexually explicit content or are, by
law, obscene, profane or pornographic; or (c)
permit to appear or be uploaded any messages,
data, images or programs that would knowingly or
intentionally (which includes imputed intent)
violate the property rights of others, including
unauthorized copyrighted text, images or
programs, trade secrets or other confidential
proprietary information, or trademarks or service
marks used in an infringing fashion.
6.4.5 If any of the performance standards set forth
above are not met by either party with respect to
that party's site, the other party may, after
notifying the violating party, remove any or all
links to such party's, at the non violating
party's sole discretion. If a party's site fails
to operate fully and functionally in any material
respect for any period of four or more
consecutive hours, even if otherwise in
compliance with the performance standards, the
other party may, after notifying the violating
party, remove any or all links to such violating
party's site, at the non-violating party's sole
discretion, until such time as the violating
party notifies the non-violating party that such
site has resumed acceptable operation. These
remedies are for each party's editorial purposes
and in no way limit either party's ability to
terminate this contract or pursue any other
remedies hereunder in the event the performance
standards set forth herein are not met.
8
<PAGE>
7. Termination.
7.1 The term of this Agreement (the "Term") will begin on the
date hereof and will end on the second anniversary of the
date hereof, unless otherwise terminated or extended as
provided in this Agreement.
7.2 If either party commits a material breach of its
obligations hereunder that is not cured within 30 days
after notice thereof from the non-breaching party, the
non-breaching party may terminate this Agreement at any
time by giving written notice of termination to the
breaching party (or ten days in the event of non-payment).
7.3 The provisions of Sections 12, 13 and 14 and any payment
obligations arising prior to termination will survive any
termination of this Agreement.
8. Reporting.
8.1 Within 30 days after the end of each calendar month during
the Term, Snap will provide to the Company standard
advertising reports, as generally offered by Snap, with
respect to the Promotions.
8.2 Within 30 days after the end of each calendar month during
the Term, the Company will provide to Snap a report
indicating (a) the number of Users who access any Company
Site by clicking on a link embedded within a Promotion
delivered by Snap hereunder, in the aggregate and for each
Company Site, and (b) the total revenues and gross profit
earned by the Company from sales made through the
Company's iBaby site to such Users. The Company will
obtain such data by tagging each User who accesses any
Company Site through a Promotion using a cookie or other
similar technology, as agreed upon by the parties.
9. User Data.
The Company will be the sole owner of any information that the
Company collects from Users through the Company Sites, and Snap
will be the sole owner of any information that Snap collects from
Users through the Snap Site. Notwithstanding the foregoing and
subject to the provisions of Section 14.8, each party will have the
unrestricted right and license to use any information provided by
the other party pursuant to Section 7.
10. Company Integration of Snap.
10.1 The Company will feature a Snap Box as a part of the front
page of each of the Company Sites and throughout the
Company Sites as appropriate, the design, size and
positioning of which will be mutually agreed upon by Snap
and the Company, provided that the Snap Box appear above
the fold. Snap will pay the Company for Snap Results Pages
as provided in Section 5.6, above.
9
<PAGE>
10.2 The Snap Results Pages delivered to users as a result of a
query from Company's Snap Box will be co-branded edition
of the Snap Service located at www.snap.com.
10.3 On each page of a Snap Site to which Users are linked from
the Company Site, Snap will display a mutually agreed upon
button or other graphical link to be provided by the
Company, which links back to the default Company Site. All
such links on the Snap Site will be displayed Above the
Fold. Company agrees not to specifically target
(separately from the general database of Company Users)
any Users who access the Company Site through such links.
11. Trademark Licenses.
11.1 The Company hereby grants to Snap a non-exclusive,
royalty-free license, effective throughout the Term, to
use, display and publish the Company Marks solely within
the Promotions. Any use of the Company Marks by Snap must
comply with any reasonable usage guidelines communicated
by the Company to Snap from time to time. Nothing
contained in this Agreement will give Snap any right,
title or interest in or to the Company Marks or the
goodwill associated therewith, except for the limited
usage rights expressly provided above. Snap acknowledges
and agrees that, as between the Company and Snap, the
Company is the sole owner of all rights in and to the
Company Marks.
11.2 Snap hereby grants to the Company a non-exclusive, royalty
free license, effective throughout the Term, to use,
display and publish the Snap Marks solely within the
Company Sites as provided in Section 8 above. Any use of
the Snap Marks by the Company must comply with any
reasonable usage guidelines communicated to the Company by
Snap from time to time. Nothing contained in this
Agreement will give the Company any right, title or
interest in or to the Snap Marks or the goodwill
associated therewith, except for the limited usage rights
expressly provided above. The Company acknowledges and
agrees that, as between the Company and Snap, Snap is the
sole owner of all rights in and to the Snap Marks.
12. Responsibility for the Products.
The Company acknowledges and agrees that, as between the Company
and Snap, the Company will be solely responsible for any claims or
other losses associated with or resulting from the marketing or
operation of the Company Sites or the offer or sale of any Products
by the Company or through the Company Sites. Snap is not authorized
to make, and agrees not to make, any representations or warranties
concerning the Company Sites or the Products, except to the extent
(if any) contained within Promotions delivered to Snap by the
Company or approved by the Company.
13. Mutual Indemnification.
13.1 Indemnification by Snap. Snap shall indemnify and hold the
Company harmless from and against any costs, losses,
liabilities and expenses, including all court
10
<PAGE>
costs, reasonable expenses and reasonable attorney's fees
(collectively, "Losses") that the Company may suffer,
incur or be subjected to by reason of any legal action,
proceeding, arbitration or other claim by a third party,
whether commenced or threatened, arising out of or as a
result of any claims of infringement or misappropriation
of intellectual property rights, or arising from the
operation of Snap Site.
13.2 Indemnification by the Company. The Company shall
indemnify and hold Snap harmless from and against any
Losses that Snap may suffer, incur or be subjected to by
reason of any legal action, proceeding, arbitration or
other claim by a third party, whether commenced or
threatened, arising out of or as a result of (a) the use
of the Company Marks by Snap in accordance with this
Agreement; (b) any content provided by the Company to Snap
for display on the Snap Site; (c) the operation of the
Company Sites; or (e) the offer or sale of any Products by
the Company or through the Company Sites.
13.3 Indemnification Procedures. If any party entitled to
indemnification under this Section (an "Indemnified
Party") makes an indemnification request to the other, the
Indemnified Party shall permit the other party (the
"Indemnifying Party") to control the defense, disposition
or settlement of the matter at its own expense; provided
that the Indemnifying Party shall not, without the consent
of the Indemnified Party enter into any settlement or
agree to any disposition that imposes an obligation on the
Indemnified Party that is not wholly discharged or
dischargeable by the Indemnifying Party, or imposes any
conditions or obligations on the Indemnified Party other
than the payment of monies that are readily measurable for
purposes of determining the monetary indemnification or
reimbursement obligations of Indemnifying Party. The
Indemnified Party shall notify Indemnifying Party promptly
of any claim for which Indemnifying Party is responsible
and shall cooperate with Indemnifying Party in every
commercially reasonable way to facilitate defense of any
such claim; provided that the Indemnified Party's failure
to notify Indemnifying Party shall not diminish
Indemnifying Party's obligations under this Section except
to the extent that Indemnifying Party is materially
prejudiced as a result of such failure. An Indemnified
Party shall at all times have the option to participate in
any matter or litigation through counsel of its own
selection and at its own expense.
14. Miscellaneous.
14.1 Women's Channel. If, during the Tenn, Snap creates a
Women's Channel or a Women's resource center, Snap will
negotiate in good faith with the Company, for at least 15
days before negotiating with any third party, concerning
the terms on which the Company could provide content or
receive branding within such channel or resource center.
Should Snap and the Company agree on such terms then, as
part of that agreement, (i) content provided by Women.com,
Home Arts and Oxygen
11
<PAGE>
will not constitute, in the aggregate, more than 40% of
the total content provided within the Women's Channel or
Women's resource center, as the case may be; (ii) content
provided by Women.com, Home Arts and Oxygen will not
constitute individually more than 25% of the total content
in the Women's Channel or Women's resource center, and
(iii) promotions for Women.com, Home Arts and Oxygen will
not constitute, in the aggregate, more than 50% of the
total number of Promotions displayed within the Women's
Channel or Women's resource center, provided that each
company's promotions may not constitute more than 25% of
the total Promotions displayed within the Women's Channel
or Women's resource center; and (iv) the Company shall at
all times during the term of the agreement be the
preferred provider of content and promotions throughout
such Women's Channel.
14.2 LIMITATION OF DAMAGES. NEITHER PARTY WILL BE LIABLE FOR
ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES
ARISING OUT OF OR RELATED TO THIS AGREEMENT, HOWEVER
CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING
NEGLIGENCE), AND EVEN IF SUCH PARTY HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES. FURTHER, EXCEPT FOR ANY
CLAIM FOR INDEMNIFICATION ARISING UNDER SECTION 13 ABOVE,
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR DAMAGES IN
EXCESS OF THE TOTAL PAYMENTS REQUIRED TO BE MADE UNDER
THIS AGREEMENT.
14.3 Assignment. Snap may not assign this Agreement, except (a)
in connection with the transfer of substantially all of
the business operations of Snap (whether by asset sale,
stock sale, merger or otherwise); (b) to an affiliate of
Snap; or (c) with the written permission of the Company,
which will not be unreasonably withheld. The Company may
not assign this Agreement, except with the written
permission of Snap, which will not be unreasonably
withheld or delayed.
14.4 Relationship of Parties. This Agreement will not be
construed to create a joint venture, partnership or the
relationship of principal and agent between the parties
hereto, nor to impose upon either party any obligations
for any losses, debts or other obligations incurred by the
other party except as expressly set forth herein.
14.5 Entire Agreement. This Agreement constitutes and contains
the entire agreement between the parties with respect to
the subject matter hereof and supersedes any prior oral or
written agreements. This Agreement may not be amended
except in writing signed by both parties. Each party
acknowledges and agrees that the other has not made any
representations, warranties or agreements of any kind,
except as expressly set forth herein.
14.6 Audit Rights. Each party will have the right to engage an
independent third party to audit the books and records of
the other party relevant to the quantification of the
Promotions, not more than once per year during the term of
this Agreement, and upon not less than thirty (15) days
written notice and during normal business hours, and the
other party will provide reasonable cooperation in
connection with any such audit. The party requesting the
audit will pay all expenses of the auditor
12
<PAGE>
unless the audit reveals an underpayment by the other
party of more than 5%, in which case the other party will
reimburse all reasonable expenses of the auditor.
14.7 Applicable Law. This Agreement will be construed in
accordance with and governed by the laws of the State of
California, without regard to principles of conflicts of
law.
14.8 Confidentiality. In connection with the activities
contemplated by this Agreement, each party may have access
to confidential or proprietary technical or business
information of the other party, including without
limitation (a) proposals, ideas or research related to
possible new products or services; (b) financial
information; and (c) the material terms of the
relationship between the parties (collectively,
"Confidential Information"). Each party will take
reasonable precautions to protect the confidentiality of
the other party's Confidential Information, which
precautions will be at least equivalent to those taken by
such party to protect its own Confidential Information.
Except as required by law or as necessary to perform under
this Agreement, neither party will knowingly disclose the
Confidential Information of the other party or use such
Confidential Information for the benefit of any third
party. Each party's obligations in this Section with
respect to any portion of the other party's Confidential
Information shall terminate when the party seeking to
avoid its obligation under this Section can document that:
(i) it was in the public domain at or subsequent to the
time it was communicated to the receiving party
("Recipient") by the disclosing party (`Discloser")
through no fault of Recipient; (ii) it was rightfully in
Recipient's possession free of any obligation of
confidence at or subsequent to the time it was
communicated to Recipient by Discloser; (iii) it was
developed by employees or agents of Recipient
independently of and without reference to any information
communicated to Recipient by Discloser; (iv) it was
communicated by the Discloser to an unaffiliated third
party free of any obligation or confidence; or (v) the
communication was in response to a valid order by a court
or other governmental body, was otherwise required by law
or was necessary to establish the rights of either party
under this Agreement.
14.9 Press Release. Each party may issue a press release
concerning the business relationship contemplated in this
Agreement, provided that the other party has had a
reasonable opportunity to review and comment on its press
release, and agreed on the content of the release either
verbally or in writing. In addition, each party will
provide an appropriate quote from one of its senior
executive officers for use in the other party's release.
14.10 Illustrations. All Illustrations attached to the Exhibits
are for illustrative purposes only and shall not be deemed
to bind, obligate or restrict either party from making
reasonable changes in such party's discretion.
14.11 Attorney Fees. In any action or suit to enforce any right
or remedy under this Agreement or to interpret any
provision of this Agreement, the prevailing party shall be
entitled to recover its costs, including reasonable
attorneys' fees.
13
<PAGE>
14.12 Dispute Resolution. In the event that any dispute arises
hereunder, the parties agree that prior to commencing
litigation, arbitration, or any other legal proceeding,
each party shall send an officer of such party to
negotiate a resolution of the dispute in good faith at a
time and place as may be mutually agreed. Each officer
shall have the power to bind its respective party in all
material respects related to the dispute.
14
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives as of the date first written above.
SNAP, LLC iVILLAGE, INC.
By: /s/ Edmund Sanctis By: /s/ Steve Elkes
--------------------------- ------------------------------
Name: Edmund Sanctis Name: Steve Elkes
--------------------------- ------------------------------
Title: C.O.O. Title: V.P. Business Affairs
--------------------------- ------------------------------
15
<PAGE>
Exhibit A
Keywords
babies
baby
baby products
baby store
babyname
babynames
birth
breast feeding
car seat
exercise
expecting
fitness
health
healthcare
healthy
maternity
menopause
mother
name
names
osteoporosis
parenting
parents
pregnant
pregnancy
pregnant
prevention
stroller
16
<PAGE>
Exhibit B
Snap Editorial Guidelines for Partner Content
(as of September 1998)
Editorial Suggestions
---------------------
Provide content that is inherently informative or useful in itself, rather
than strictly a promotion for content on your site. Feel free to include as
many links to your site as you want, but they should be related to the
content you are providing. An exception would be your logo link, which
should link to your site's main home page.
Editorial Requirements
----------------------
All content or other materials provided to Snap must adhere to Snap's
editorial guidelines. These guidelines include, without limitation, a
prohibition on direct links from the applicable site to pornographic or
illegal material, and a prohibition on the advertising of firearms or
pornographic products or services from within Snap. Snap prohibits any
obscene, indecent, or profane language. Snap requires that all content
should be factually correct.
Links in your content must only point to the site from which the content was
harvested. Links must take the user directly to the content which they
describe. For example, links must not lead users through advertisements on
the way to the content. No interstitial advertisements. No pop-up
advertisements.
Content must be relevant to the Topic. It must also be relevant to the point
and time. This does not mean that content must be updated at a particular
rate. However, whatever content is live at any given time must be completely
relevant. The content must include your brand, either as text or a graphic.
A logo graphic should contain the brand name and the ALT text for the
graphic must give the brand name.
The content linked to from your page must be free to Snap users, and initial
registration or subscription must not be required. However, you are free to
use content pages on your own site (not hosted by Snap) to up sell
subscription or registration-required content. (example: "For more
headlines, click here to subscribe.")
Advertisements within your content are not allowed. Your information must be
content, not an advertisement for your site or brand or any other
site/brand.
General Notes & Standards
-------------------------
Snap is willing to discuss modifications to the policies stated in these
documents; however, all exceptions must be approved by the Snap Executive
Producer. Snap may change these Content Page specifications and requirements
at any time, with reasonable notice given to the Provider.
17