\n[*] percent $[*] $[*] $[*]
\n[*] percent $[*] $[*] $[*]
\n[*] percent $[*] $[*] $[*]
\n[*] percent $[*] $[*] $[*]
\n[*] percent $[*] $[*] $[*]
\n[*] percent $[*] $[*] $[*]
\n[*] percent $[*] $[*] $[*]
\n[*] percent $[*] $[*] $[*]
\n[*] percent $[*] $[*] $[*]
\n[*] percent $[*] $[*] $[*]<\/p>\n<\/c><\/c><\/c><\/s><\/caption>\n<\/table>\n
(c) If iVillage owes Schwab a fee reduction or cash payment pursuant to
\n Section 5(d) or (e) of the Agreement:<\/p>\n
(i) in excess of [*] for the first year of this Agreement, such amount may
\n be reduced by a maximum credit of [*] if iVillage delivers at least
\n 30 million banner advertising impressions in the year preceding the
\n first-year Calculation Date;<\/p>\n
(ii) in excess of [*] for the second year of this Agreement, such amount
\n may be reduced by a maximum credit of [*] if iVillage delivers at
\n least 30 million banner advertising impressions in the year preceding
\n the second-year Calculation Date;<\/p>\n
(iii) in excess of [*] for the third year of this Agreement, such amount may
\n be reduced by a maximum credit of [*] if iVillage delivers at least 30
\n million banner advertising impressions in the year preceding the
\n third-year Calculation Date.<\/p>\n
16<\/p>\n
(d) If iVillage fails to deliver [*] impressions in any year
\n and the fee reduction or cash refund it owes to Schwab exceeds
\n the amount stated in Paragraph 8(c) of this Exhibit A for that year,
\n then iVillage shall be entitled to a partial credit of any fee
\n reduction or cash payment due to Schwab for actual impressions
\n delivered based upon a [*] cost per thousand impressions. iVillage is
\n not entitled to any credit against any fee reduction or cash payment
\n owed to Schwab if it delivers less than 18 million impressions in the
\n year preceding the Calculation Date.<\/p>\n
(e) Any fee reduction or cash payment owed to Schwab may be further
\nreduced by [*]%, if Schwab is unable to demonstrate to iVillage that it can
\naccurately track online account opening activity at its Web site resulting from
\nclickthroughs to Schwab’s Web site from the Armchair Site.<\/p>\n
8. Schwab Promotional Activities<\/p>\n
During the term of the Agreement, Schwab will provide promotional support for
\nthe Armchair Site through a variety of online and off-line marketing
\nactivities, such as customer collateral, online banner and links from other
\ninteractive mediums.<\/p>\n
17<\/p>\n
Exhibit B<\/p>\n
Customer Service Exhibit<\/p>\n
(1) iVillage Service Support Escalation:<\/p>\n
In the event that Schwab Customer Service needs to escalate a question or
\nissue to iVillage, iVillage shall provide a staffed phone number for use by
\nthe Schwab Help Desk. The Help Desk shall use this number for such issues as
\nescalating customer reports of iVillage outages or other issues. iVillage
\nshall respond with available information, including the status of any
\ntechnical issues, so that the Help Desk can alert Schwab Customer Reps. <\/p>\n
Phone number: (iVillage to fill in)
\n ————————————<\/p>\n
Hours of Operation:
\n ——————————-<\/p>\n
Pager number:
\n ————————————<\/p>\n
Hours On Call:
\n ———————————–<\/p>\n
(2) Schwab Customer Phone Calls and Email:<\/p>\n
If a customer calls or emails iVillage an inquiry that pertains to any Schwab
\naccounts or services, or if a user calls or emails iVillage with an inquiry
\nregarding investing or brokerage activities, iVillage will refer the customer
\nor user to contact Schwab directly. iVillage shall not reply to the inquiry on
\nSchwab’s behalf refer any user to another securities brokerage firm or other
\ninvestment services provider.<\/p>\n
o Email: iVillage shall send a reply to the customer email within 24 hours,
\n instructing the customer to contact Schwab directly, and will include
\n Schwab Contact Information as appropriate.<\/p>\n
o Phone: iVillage shall instruct customers to contact Schwab directly via
\n the appropriate Schwab Contact Information.<\/p>\n
Schwab Contact Information:<\/p>\n
o By Telephone:<\/p>\n
o General Inquiries: For additional information on Schwab’s products
\n and services, or to sign up your Schwab account for web access
\n through Schwab’s Web site at www.schwab.com, please call our 24 hour
\n Customer Service: 1-800-435-4000<\/p>\n
o U.S. Technical Support: For assistance with Schwab’s Web site
\n (www.schwab.com) or software, please call
\n 1-800-334-4455
\n Hours of Operation:
\n Mon. – Fri. 6am – 7pm PST
\n Sat. – Sun. 8am – 4:30pm PST<\/p>\n
18<\/p>\n
o e.Schwab: For more information on e.Schwab, please call
\n 1-800-e.Schwab (1-800-367-4922)
\n Hours of Operation:
\n Mon. – Fri. 6am – 7pm PST
\n Sat. – Sun. 8am – 4:30pm PST<\/p>\n
o For customers outside of the U.S.: For general inquiries and
\n technical support for customers outside of the U.S., please call
\n 1-602-852-3500
\n Hours of Operation:
\n Mon. – Fri. 9am – 6pm, EST<\/p>\n
o By email<\/p>\n
o Schwab customers may email Schwab Customer Service by logging on
\n to the Customer Center on the Schwab Web site at www.schwab.com
\n Web site. To set up your Schwab Account for Web access, please
\n call the General Inquiries phone number above. Customer emails
\n will be responded to within approximately 24 hours.<\/p>\n
(3) Schwab Service Support:<\/p>\n
If iVillage Customer Service needs to contact Schwab for assistance with
\nCustomer Service, the iVillage Customer Service Escalation Contact Person may
\ncall the Schwab Customer Service Help desk at 1-888-362-7778. This contact is
\nfor iVillage to Schwab Customer Service use only; no customers shall be given
\nthe number or transferred to Schwab on this number.
\nPhone number: 1-888-362-7778
\nHours of Operation: Mon. – Fri. 6am – 7pm PST
\n Sat. – Sun. 8am – 4:30 pm PST<\/p>\n
(4) Hours of Operation:<\/p>\n
Schwab Customer Service Hours of Operation are as noted in section (2) above.
\niVillage Customer Service Hours of Operation shall be:<\/p>\n
Phone Support (Customers):
\n ————————–<\/p>\n
Email support (Customers):
\n ————————–<\/p>\n
Email response time goal: (e.g. will reply to emails
\n ————————–<\/p>\n
within 24 hours of receipt).<\/p>\n
19<\/p>\n
ADDENDUM
\n ——–<\/p>\n
THIS ADDENDUM to that certain Online Services Agreement (Agreement”)
\ndated December 19, 1997, by and between iVillage, Inc. (“iVillage”) and Charles
\nSchwab & Co., Inc. (“Schwab”) is made as of June 29, 1998, and is incorporated
\ninto and made a part of the Agreement.<\/p>\n
WHEREAS, in Exhibit A, Section 4(a) of the Agreement the parties
\ncontemplated that subject to iVillage’s consent, Schwab may sponsor and\/or host
\nlive Investment Forums (“Investment Forums”) on the Armchair Site;<\/p>\n
WHEREAS, Schwab wishes to commence the Investment Forums and iVillage
\nhas agreed to allow Schwab to hold the Investment Forums on the Armchair Site
\nduring the term of the Agreement.<\/p>\n
NOW THEREFORE, THE PARTIES AGREE AS FOLLOWS WITH RESPECT TO THE
\nINVESTMENT FORUMS ON THE ARMCHAIR SITE:<\/p>\n
1. At least once each month, or more frequently if the parties mutually
\n agree to do so, iVillage shall provide to Schwab, without additional
\n charge, an online auditorium on the Armchair Site that will enable
\n Schwab to hold the Investment Forums” – -, which are live, moderated,
\n interactive events organized and sponsored by Schwab (the “Investment
\n Forums”). The online auditorium will accommodate a commercially
\n reasonable number of unique, concurrent attendees, subject to server
\n capacity and technological capabilities. Schwab shall have sole
\n discretion in selecting all Forum topics, guests and moderators subject
\n to iVillage’s reasonable approval. Schwab, or a moderator selected by
\n Schwab, shall be entitled to host the Investment Forums. Unless
\n approved in advance by Schwab, iVillage will not display any
\n advertising in the Schwab event auditoriums. Schwab may post
\n promotional dynamic messages relating to its services within the Schwab
\n event auditorium during the Investment Forums. At the end of each
\n Forum, iVillage will display messages encouraging attendees to visit
\n the Investor Center on the Armchair Site, the Schwab site or other
\n sites designated by Schwab As between Schwab and iVillage, Schwab shall
\n own all content related to the Investment Forums, including but not
\n limited to, copyright or other intellectual property rights of all
\n prepared text, questions, answers or transcripts of the Investment
\n Forums (“Schwab Forum Content”), except that iVillage may make use of
\n reasonable excerpts of the Schwab Forum Content subject to Schwab’s
\n reasonable approval.<\/p>\n
2. The online auditorium technology platform supplied by iVillage to
\n Schwab will provide Schwab and its host the opportunity to field and
\n screen questions of attendees and attendees an opportunity to interact
\n with the host of the Investment Forums. iVillage also agrees to furnish
\n to online users, through download capabilities or otherwise, all
\n software and technical support needed to enable users to attend such
\n Investment Forums. iVillage will include on each user’s “entry page” to
\n each Forum a release and disclosure, the wording of which will be
\n mutually agreed upon in good faith by the parties. <\/p>\n
3. iVillage expects, but is not obligated, to promote the Investment
\n Forums on various areas of the Armchair Site, including, but not
\n limited to, the Investor Center, and on <\/p>\n
other iVillage Web sites. All such promotions will mention that the
\n Investment Forums are part of a series sponsored by Schwab and will
\n direct users to a page that describes the upcoming event(s) and
\n encourages users to download the software needed to enable users to
\n attend such Investment Forums.<\/p>\n
4. iVillage will post and archive each Forum transcript on the Armchair
\n Site within two (2) business days after the transcript is provided by
\n Schwab and allow visitors to the Site to view the transcripts. iVillage
\n will also post a topical index of all Investment Forums and allow
\n visitors to view archived transcripts from prior Investment Forums; <\/p>\n
5. So that Schwab may monitor market performance and make program
\n adjustments, iVillage will provide to Schwab timely and accurate
\n reports as follows: <\/p>\n
(a) Total number of non-unique attendees at each Forum within five
\n (5) business days following the Forum;<\/p>\n
(b) Total number of page views of each Forum transcript posted
\n after a Forum, with a breakdown by Forum event transcript
\n viewed;<\/p>\n
(c) Total number of Forum “entry page” views, from the Investor
\n Center and any other areas where the Forum “entry page” is
\n linked. <\/p>\n
6. During the term of the Agreement, iVillage will not permit any other
\n party to hold Investment Forums or other events on the Armchair Site if
\n such party is reasonably deemed to offer securities brokerage,
\n investing or mutual fund services in competition with Schwab. Further,
\n iVillage will not permit Investment Forums or events by any party on
\n topics related to securities brokerage, investing or financial services
\n during any portion of the time that Schwab is holding such an event on
\n the Armchair Site.<\/p>\n
7. The terms and conditions of the Agreement remain in full force and
\n effect.<\/p>\n
IN WITNESS WHEREOF, the parties have executed this Addendum as of the
\ndate first above written.<\/p>\n
iVillage, Inc. Charles Schwab & Co., Inc.<\/p>\n
By: \/s\/ Steve Elkes By: Illegible
\n ————————- ——————————————–<\/p>\n
Its: V.P. Finance Its: VP Electric Brokerage Business Development
\n ————————- ——————————————–<\/p>\n
Date: 6\/30\/98 Date: 6\/29\/98
\n ————————- ——————————————–<\/p>\n
ADDENDUM NO. 2
\n ————–<\/p>\n
THIS ADDENDUM to that certain Online Services Agreement (“Agreement’)
\ndated December 19, 1997, by and between iVillage, Inc. (“iVillage”) and Charles
\nSchwab & Co., Inc. (“Schwab”) is made as of June 29, 1998, and is incorporated
\ninto and made a part of the Agreement.<\/p>\n
WHEREAS, iVillage provides information related to planning for
\neducational expenses to visitors to its proprietary Web sites, including but not
\nlimited to, its ParentSoup(Registered) Site (url:http:\/\/www.parentsoup.com)
\n(“Content Areas”);<\/p>\n
WHEREAS, Schwab has developed and owns certain content and software
\nrelated to its College Saver(Trademark) Program, including, but not limited
\nto, its College Saver Online Planning Tool (the “CS Tool”). The CS Tool is
\ncomprised of two elements: the Calculations (including assumptions) and the
\nPresentation;<\/p>\n
WHEREAS, iVillage wishes to license the CS Tool for use by visitors to
\nits Content Areas and Schwab is willing to license use of the CS Tool to
\niVillage for this purpose subject to the terms and conditions set forth below.<\/p>\n
NOW THEREFORE, the parties agree as follows with respect to use of the
\nCS Tool on the Content Areas:<\/p>\n
1. During the term of the Agreement, Schwab hereby grants iVillage a
\n worldwide, nonexclusive, revocable, nontransferable fully-paid up and
\n royalty-free license to use and distribute to end users of the Content
\n Areas the object code version of the CS Tool and to reproduce copies of
\n the CS Tool only to the extent necessary to accomplish the foregoing.<\/p>\n
2. Subject to the terms set forth in Sections 1, 2 and 3 of the Agreement,
\n iVillage will include Schwab Marks in each Content Area in which the CS
\n Tool is used. Schwab shall have the right to approve the location of
\n the CS Tool and the Schwab Marks within the Content Areas.<\/p>\n
3. iVillage may, in its discretion and at its own expense, change only the
\n Presentation element of the CS Tool to be consistent with the Content
\n Areas.<\/p>\n
4. At is own expense, iVillage will perform updates to and modifications
\n of the Calculations element of CS Tool on the Content Areas as they are
\n provided by Schwab.<\/p>\n
5. iVillage will promote the CS Tool and the Content Areas through
\n hyperlinks or banner advertisements from other areas of the iVillage
\n Web sites.<\/p>\n
6. Any new accounts obtained by Schwab through the use of the CS Tool in
\n the Content Areas will be counted towards the Account Goals set forth
\n in paragraph 8 of Exhibit A to the Agreement.<\/p>\n
7. iVillage’s reporting obligations as set forth in Section 6 of Exhibit A
\n of the Agreement shall also apply to end user use of the CS Tool in the
\n Content Areas.<\/p>\n
8. The CS Tool, any Informational Material or Schwab Content that appears
\n in the Content Areas is Schwab’s exclusive property and may not be
\n sold, licensed, copied, distributed or divulged, except as provided in
\n Section 1 of this Addendum or elsewhere in the Agreement, without
\n Schwab’s prior written permission.<\/p>\n
9. THE CS TOOL IS PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. TO THE
\n MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, SCHWAB AND ITS SUPPLIERS
\n DISCLAIM ALL WARRANTIES, CONDITIONS AND REPRESENTATIONS, EXPRESS OR
\n IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR
\n A PARTICULAR PURPOSE OR NONINFRINGEMENT.<\/p>\n
10. Capitalized terms used but not defined herein shall have the meanings
\n ascribed thereto in the Agreement.<\/p>\n
11. The terms and conditions of the Agreement remain in full force and
\n effect.<\/p>\n
IN )WITNESS WHEREOF, the parties have executed this Addendum as of the date
\nfirst above written.<\/p>\n
iVillage, Inc. Charles Schwab & Co., Inc.<\/p>\n
By: \/s\/ Steve Elkes By: Illegible
\n ————————- ——————————————–<\/p>\n
Its: V.P. Finance Its: VP Electric Brokerage Business Development
\n ————————- ——————————————–<\/p>\n
Date: 6\/30\/98 Date: 6\/29\/98
\n ————————- ——————————————–<\/p>\n
Amendment Number One
\n to
\n Online Services Agreement<\/p>\n
This First Amendment (“First Amendment”) to that certain Online
\nServices Agreement dated December 19, 1997 (“Agreement”), by and between
\niVillage, Inc. (“iVillage”) and Charles Schwab & Co., Inc. (“Schwab”) is made
\neffective as of December 19, 1997 (“Amendment Effective Date”), and is
\nincorporated into and made a part of the Agreement.<\/p>\n
1. The following replaces subparagraphs 9c) and (d) of Paragraph 8
\n (“Performance Objectives”), Exhibit A of the Agreement:<\/p>\n
8. Performance Objectives<\/p>\n
(c) If iVillage owes Schwab a fee reduction or cash payment pursuant to
\n Section 5(d) or (e) of the Agreement, a maximum rebate may apply:<\/p>\n
(i) if iVillage delivers at least [*] banner
\n advertising impression in the year preceding the
\n first-year Calculation Date, the maximum rebate that
\n will be due to Schwab for unmet Account Goals is [*],
\n in the form of cash or credit.<\/p>\n
(ii) If iVillage delivers at least [*] banner advertising
\n impressions in the year preceding the second-year
\n Calculation Date, the maximum rebate that will be due to
\n Schwab for unmet Account Goals is [*], in the form of
\n cash and credit.<\/p>\n
(iii) if iVillage delivers at least [*] advertising
\n impressions in the year preceding the third-year
\n Calculation Date, the maximum rebate that will be due
\n to Schwab for unmet Account Goals is [*], in the form
\n of cash or credit.<\/p>\n
(d) If iVillage fails to deliver [*] in any year and the fee reduction or
\n cash refund it owes Schwab exceeds the amount stated in Paragraph 8(c)
\n of this Exhibit A for that year, then iVillage shall be entitled to a
\n partial credit of any fee reduction or cash payment due to Schwab for
\n actual impressions delivered exceeding [*] based upon a [*] cost
\n per thousand impressions, up to a maximum fee reduction or cash payment
\n owed to Schwab of [*], with a limitation that the applied credit will
\n reduce the maximum fee reduction or cash payment owed to Schwab of [*].
\n iVillage is not entitled to any credit against any fee reduction or
\n cash payment owed to Schwab if it delivers less than [*] impressions in
\n the year preceding the Calculation Date.<\/p>\n
2. Capitalized terms used but not defined herein shall having the meaning
\nascribed to them in the Agreement.<\/p>\n
3. Except as amended herein, the remaining terms and conditions of the
\n Agreement remain in full force and effect.<\/p>\n
IN WITNESS WHEREOF, the parties have caused this Amendment to be
\nexecuted as of the Amendment Effective Date.<\/p>\n
iVILLAGE, INC. CHARLES SCHWAB & CO., INC.<\/p>\n
By: \/s\/ Steve Elkes By: \/s\/ [ILLEGIBLE]
\n ————————— —————————
\nIts: Vice President Its: VP Electric Brokerage
\n ————————— —————————
\nDate: 6\/29\/98 Date: 6\/29\/98
\n ————————— ————————— <\/p>\n
EX-10.15<\/p>\n7<\/p>\nJOINT ACTIVITIES AGREEMENT<\/p>\n* Confidential treatment has been requested for certain portions of this
\n exhibit. Omitted portions have been filed separately with the Commission.<\/p>\n
JOINT ACTIVITIES AGREEMENT<\/p>\n
This Joint Activities Agreement (the “Agreement”)is made and entered
\ninto as of September __, 1997 (the “Effective Date”) by and between Intuit
\nInc., a Delaware corporation (“Intuit”) and iVillage Inc., a Delaware
\ncorporation (“iVillage”).<\/p>\n
RECITALS<\/p>\n
A. Intuit and iVillage desire jointly to develop, launch and maintain
\nan interactive online financial education and planning service (such service
\nto be referred to herein as “Armchair Millionaire”) and to conduct certain
\nother business related to such activities.<\/p>\n
B. Each of Intuit and iVillage desires to provide certain services
\nrelating to the development, launch and maintenance of Armchair Millionaire,
\non the terms and subject to the conditions set forth herein.<\/p>\n
AGREEMENT<\/p>\n
The parties hereto agree as follows:<\/p>\n
1. Definitions. Capitalized terms used and not otherwise defined in
\nthis Agreement will have the following meanings, respectively:<\/p>\n
1.1 “Advertising Revenue” means the sum of the aggregate
\namounts billed for the license or sale of any Advertising Rights, less the sum
\nof: (a) amounts allocable to any credits granted for unused Advertising
\nRights, (b) agency, camera-ready art and other discounts actually provided,
\n(c) refunds, rebates, make goods and similar credits, (d) applicable taxes;
\n(e) a three percent (3%) reserve for bad debts; and (f) amounts billed for
\nproduction services actually performed in connection with the license or sale
\nof Advertising Rights; provided, that (i) the amount billed for media portion
\nof such license or sale must be at or above the prevailing rate and (ii)
\niVillage notifies Intuit in writing of the relative amounts proposed to be
\nbilled for production and media, respectively, and Intuit does not object to
\nsuch amounts before the end of the second business day following receipt of
\nsuch written notice.<\/p>\n
1.2 “Advertising Rights” means any advertising, sponsorship,
\nlinking and similar promotional rights sold or licensed in connection with the
\nQuicken Financial Network version of Armchair Millionaire.<\/p>\n
1.3 “Affiliate” of any party means any entity that controls,
\nis controlled by or is under common control with such party. For purposes of
\nthis definition, “control” will mean the possession, directly or indirectly,
\nof a majority of the voting power of such entity (whether through ownership of
\nsecurities or partnership or other ownership interests, by contract or
\notherwise).<\/p>\n
1.4 “Armchair Millionaire Content” means all materials, data
\nor other information owned or licensed by iVillage and displayed from time to
\ntime in Armchair Millionaire.<\/p>\n
1.5 “Confidential Information” means any information of a
\nparty disclosed to the other party in the course of this Agreement, which is
\nidentified as, or should be reasonably understood to be, confidential to the
\ndisclosing party, including, but not limited to, know-how, trade secrets, data,
\ntechnical processes and formulas, source code, product designs, sales, cost
\nand other unpublished<\/p>\n
financial information, product and business plans, projections, marketing
\ndata and this Agreement and all exhibits hereto. “Confidential Information”
\nwill not include information which: (a) is known or becomes known to the
\nrecipient directly or indirectly from a third-Party source other than one
\nhaving an obligation of confidentiality to the providing party; (b) is or
\nbecomes publicly available or otherwise ceases to be secret or confidential,
\nexcept through a breach of this Agreement by the recipient; or (c) is or was
\nindependently developed by the recipient without use of or reference to the
\nproviding party’s Confidential Information, as shown by evidence in the
\nrecipient’s possession.<\/p>\n
1.6 “Exclusive Carriage Period” means the period commencing
\non the Launch Date and continuing for a period of ten (10) months thereafter,
\nduring which Intuit will have the exclusive right to feature Armchair
\nMillionaire on the Quicken Financial Network.<\/p>\n
1.7 “Financial Content” means content, channels and services
\nrelating to personal finance, small businesses, tax, general business news and
\nsimilar topics, and includes, without limitation:<\/p>\n
o stock and mutual fund quotes, rates and portfolio
\n management;<\/p>\n
o online banking;<\/p>\n
o online financial services;<\/p>\n
o billpay;<\/p>\n
o online bill Presentment;<\/p>\n
o non-bank branded bill payment;<\/p>\n
o tax filing and information;<\/p>\n
o small business lending;<\/p>\n
o payroll information or services;<\/p>\n
o retirement planning tools;<\/p>\n
o checkbook management (personal finance and small business
\n accounting);<\/p>\n
o investments;<\/p>\n
o account data (such as investment portfolios, bank
\n accounts, credit card accounts, loan accounts, insurance
\n accounts and frequent flyer accounts);<\/p>\n
o credit cards and smart cards;<\/p>\n
o electronic wallets;<\/p>\n
o financial planning tools;<\/p>\n
o personal finance, small business and tax news, research
\n and information, (including listings, databases, rates,
\n quotes and charts);<\/p>\n
o financial education;<\/p>\n
o financial chat, forums and bulletin boards;<\/p>\n
o decision making and comparison tools (such as programs,
\n applets and calculators);<\/p>\n
o financial marketspaces including insurance, mortgage,
\n equity and mutual fund trading and small business
\n lending;<\/p>\n
o financial advice from experts; and<\/p>\n
o reviews and listings of financial WWW sites and services.<\/p>\n
1.8 “Guaranteed Page Views” will mean the Page Views that
\neither Intuit or iVillage commits to deliver during the term of this
\nAgreement, as set forth in Exhibit-A hereto.<\/p>\n
1.9 “Intellectual Property Rights” means all intellectual
\nproperty rights arising under statutory or common law, whether or not
\nperfected, including, without limitation, all (a) United States and foreign
\npatents, patent applications and other patent rights, including, without
\nlimitation,<\/p>\n
-2-<\/p>\n
divisions, continuations, renewals, reissues and extensions of any of the
\nforegoing, (b) rights associated with works of authorship including
\ncopyrights, copyright applications, copyright registrations and moral rights,
\n(c) Confidential Information, (d) any right analogous to those set forth in
\nthis definition, and (e) any other proprietary rights relating to intangible
\nproperty.<\/p>\n
1.10 “Intuit Brand Features” means Intuit’s trademarks, trade
\nnames, service marks, service names and distinct brand elements that appear in
\nIntuit Properties from time to time and are protected under U.S. copyright law
\nor as to which Intuit has established trademarks or trade dress rights and any
\nmodifications to the foregoing that may be created during the Term.<\/p>\n
1.11 “Intuit Brand Guidelines” means the guidelines for use
\nof the Intuit Brand Features, which may be prescribed by Intuit from time to
\ntime during the Term.<\/p>\n
1.12 “Intuit Financial Content” I means Financial Content
\nprovided by Intuit for inclusion in Armchair Millionaire (either directly or
\nthrough Links out of Armchair Millionaire), including, without limitation, the
\nIntuit Online Software Applications.<\/p>\n
1.13 “Intuit Online Software Applications” means the online
\nsoftware applications and tools described in Exhibit B hereto.<\/p>\n
1.14 “Intuit Properties” means all properties, ventures and
\nservices worldwide marketed under the Intuit Brand Features, including,
\nwithout limitation, that service currently known as “Quicken Financial
\nNetwork,” and all other properties, ventures and services in which Intuit owns
\na fifty percent (50%) or greater interest during the Term.<\/p>\n
1.15 “iVillage Brand Features” means iVillage’s trademarks,
\ntrade names, service marks, service names and distinct brand elements that
\nappear in the iVillage Properties from time to time and are protected under
\nU.S. copyright law or as to which iVillage has established trademarks or trade
\ndress rights and any modifications to the foregoing that may be created during
\nthe Term.<\/p>\n
1.16 “iVillage Brand Guidelines” means the guidelines for
\nuse of the iVillage Brand Features, which may be prescribed by iVillage from
\ntime to time during the Term.<\/p>\n
1.17 “iVillage Properties” means all properties, ventures and
\nservices worldwide marketed under the iVillage Brand Features, including,
\nwithout limitation, those services currently known as “About Work,”
\n“Better Health,” “Parent Soup,” and “Vices and Virtues,” and all properties,
\nventures and services in which iVillage owns a fifty percent (50%) or greater
\ninterest during the Term.<\/p>\n
1.18 “Launch Date” means the date on which Armchair
\nMillionaire becomes publicly available for general viewing on the WWW,
\ncurrently anticipated to be October 13, 1997.<\/p>\n
1.19 “Link” means a URL hidden behind a formatting option
\nthat may take the form of a colored item of text (such as a URL description),
\nlogo or image, and which allows a user to automatically move to or between WWW
\npages, WWW sites or within a WWW document.<\/p>\n
1.20 “Page Views” means any page(s) on the Armchair
\nMillionaire site that is (are) viewed by a user(s) on which any advertisement
\nor promotion is contained.<\/p>\n
1.21 “Quicken Financial Network” means the Intuit Property
\nlocated at http:\/\/www.quicken.com, as modified from time to time throughout
\nthe Term.<\/p>\n
-3-<\/p>\n
1.22 “Site Specification Book” means the site specification
\ndocument to be prepared by iVillage for the Quicken Financial Network version
\nof the Armchair Millionaire, including a complete site topology map,
\nfunctionality definitions and explanations, navigation standards and templates
\nand flow charts of information paths.<\/p>\n
1.23 “Term” means the term of this Agreement as provided in
\nSection 7.<\/p>\n
1.24 “URL” means Universal Resource Locator, which provides
\na unique Internet protocol address for accessing a WWW page.<\/p>\n
1.25 “WWW” means the World Wide Web, a system for accessing
\nand viewing text, graphics, sound and other media via the collection of
\ncomputer networks known as the Internet.<\/p>\n
2. Funding Commitments. iVillage and Intuit will participate in the
\nfunding of expenses associated with the development, launch and maintenance of
\nArmchair Millionaire, as contemplated in this Section 2.<\/p>\n
2.1 iVillage Commitment. iVillage will fund a minimum of
\n[*] during the period beginning on the Effective Date and ending on the
\ndate that is ten (10) months following the Launch Date to fund expenses
\nassociated with the development, launch and operation of Armchair Millionaire
\nduring that period. Except to the extent provided in Sections 2.2 and 7.5
\nbelow, iVillage will be solely responsible for the funding of all operating
\ncosts of Armchair Millionaire (x) in excess of [*] for the period
\nbeginning on the Effective Date and ending the date that is ten (10) months
\nfollowing the Launch Date and (y) for the period following the date that is
\nten (10) months following the Launch Date.<\/p>\n
2.2 Intuit Commitment. Intuit will fund an aggregate of
\n[*] for expenses associated with the development, launch and operation of
\nArmchair Millionaire, such sum to be paid in three (3) installments of
\n[*] as follows: (a) ten (10) days following the approval by Intuit of the
\nSite Specification Book in accordance with Section 3.1 below, (b) the later of
\nthe ten (10) days following the Launch Date or three (3) months following the
\ndate on which the payment contemplated in clause (a) is due and (c) the later
\nof three (3) months following the Launch Date or six (6) mouths following the
\ndate on which the payment contemplated in clause (a) is due.<\/p>\n
3. Service Commitments. iVillage and Intuit will provide services
\nassociated with the development, launch and maintenance of Armchair Millionaire
\nas contemplated in this Section 3. In providing these service, each of
\niVillage and Intuit will use efforts at least as diligent as those used in the
\nprovision of similar services for the iVillage Properties or the Intuit
\nProperties, as the case may be.<\/p>\n
3.1 Site Development and Launch. Subject to the terms and
\nconditions of this Agreement, iVillage will use its best efforts (a) to develop
\nand deliver the Site Specification Book within five (5) business days
\nfollowing the Effective Date; which Site Specification Book shall be subject
\nto the written approval of Intuit, which shal1 not be withheld unreasonably,
\nand (b) to launch the Armchair Millionaire on or before October 13, 1997. If
\niVillage fails to perform as contemplated in the previous sentence, Intuit
\nshall provide written notice of such failure to iVillage describing in
\nreasonable detail the circumstances underlying such failure, and iVillage
\nshall have a period of fifteen (15) days following the date of such written
\nnotice to correct the deficiencies. The failure by iVillage to perform in
\naccordance with the procedure set forth in this Section 3.1 shall constitute a
\nmaterial breach of this Agreement as contemplated in Section 7.3. hereof.<\/p>\n
-4-<\/p>\n
3.2 Content. iVillage will (a) develop and manage, and have
\nsole editorial authority concerning, content and programming presented in
\nArmchair Millionaire; (b) develop editorial concepts and “point of view,” and
\ndesign the “look and feel” of Armchair Millionaire, including all templates
\nand icons; and (c) ensure that the content and programming presented in
\nArmchair Millionaire is dynamic, timely and relevant; provided, that (x)
\nIntuit and iVillage will cooperate to establish common technology platforms
\nand technical specifications and (y) Intuit and iVillage will establish
\nreasonable standards and practices (including design templates and content
\nguidelines) to be observed throughout the Quicken Financial Network version of
\nArmchair Millionaire.<\/p>\n
3.3 Hosting, Personnel and Facilities. iVillage will
\n(a) provide and manage all servers, telecommunications, facilities maintenance
\nand operations related to the delivery of Armchair Millionaire over the WWW,
\n(b) provide appropriate software development services to construct site and
\ncommunity building databases, and (c) provide all technical, support sales,
\nadministrative and management personnel, facilities, equipment, supplies and
\nservices as are necessary to develop, launch and maintain Armchair Millionaire
\nas contemplated by this Agreement. Notwithstanding the foregoing, however,
\nIntuit will provide and manage all servers, telecommunications, facilities
\nmaintenance, operations and technical support related to the delivery of, or
\naccess to, the Intuit Financial Content (other than Intuit Financial Content
\nprovided directly on the Armchair Millionaire site).<\/p>\n
3.4 Carriage and Promotion. Commencing on the Launch Date
\nand continuing throughout the Term, (a) iVillage will (i) provide prominent
\nplacement of Links to Armchair Millionaire, and (ii) place advertising banners
\npromoting Armchair Millionaire on all appropriate iVillage Properties
\n(currently understood to include “ParentSoup” and “AboutWork”), in a manner
\nthat is reasonably acceptable to Intuit, with the intention of increasing
\ntraffic to Armchair Millionaire and (b) Intuit will (i) provide prominent
\nplacement of a Link to Armchair Millionaire on the “Community” homepage of
\nthe Quicken Financial Network and (ii) include within the Quicken Financial
\nNetwork excerpts of Armchair Millionaire Content, together with Links to
\nArmchair Millionaire, in a manner that is reasonably acceptable to iVillage,
\nwith the intention of increasing traffic to Armchair Millionaire. In addition,
\nduring the Exclusive Carriage Period, Armchair Millionaire will be
\n“co-branded,” featuring only the Armchair Millionaire Brand Features and the
\nIntuit Brand Features in equal prominence throughout the site. Following the
\nExclusive Carriage Period, the Intuit Brand Features will be displayed
\nthroughout Armchair Millionaire at least as prominently as the brand features
\nof any third party (other than Intuit or iVillage).<\/p>\n
3.5 Advertising Sales Representative. During the Term,
\niVillage will serve as the exclusive advertising sales representative for
\nAdvertising Rights and will use its best efforts to sell such Advertising
\nRights on Armchair Millionaire and to collect amounts owed by advertisers with
\nrespect to such sales. To the extent that Intuit sells any Advertising Right
\nduring the Term, it will obtain the consent of, and will coordinate its
\nselling effort with, iVillage.<\/p>\n
3.6 Advertising Sales Guidelines. The parties hereby agree
\nto mutually determine form time to time, (a) standards, policies and guidelines
\nwith regard to the acceptance of advertisements and advertising clients on
\nArmchair Millionaire and (b) pricing applicable to the sale of Advertising
\nRights on Armchair Millionaire. The sale by iVillage or Intuit of Advertising
\nRights will be subject to such standards, policies. guidelines, price rates
\nand procedures, and either iVillage or Intuit may reject any proposed
\nadvertisement or advertising client that is determined not to meet such
\nstandards, policies and\/or guidelines. Further, each sale of Advertising
\nRights hereunder will be subject to the proposed advertiser’s agreement to be
\nbound by the standard advertising sales agreement as agreed to by the parties
\nhereto and then in effect.<\/p>\n
-5-<\/p>\n
3.7 Commission. As compensation for services under Section
\n3.5 above, iVillage and Intuit will be entitled to receive a commission (the
\n“Commission”) of [*]% of the Advertising Revenue from their respective sales of
\nAdvertising Rights on Armchair Millionaire. Such Commission will be calculated
\nand paid in the manner and at the time prescribed in Section 4.2 below.<\/p>\n
3.8 Intuit Online Software Application. Subject to the
\nterms and conditions of this Agreement, Intuit will use its best efforts to
\npermit the integration of Intuit’s Online Software Applications in Armchair
\nMillionaire, which integration is assumed to be accomplished by Linking
\nArmchair Millionaire to the version of such Intuit Online Software
\nApplications made generally available on the Quicken Financial Network.<\/p>\n
4. Payments.<\/p>\n
4.1 Revenue Sharing. During the Term, Intuit will be
\nentitled to receive [*]%, and iVillage will be entitled to receive [*]%, of all
\nAdvertising Revenue (net of any Commission) until an aggregate of $[*] of
\nAdvertising Revenue has been collected, and Intuit will be entitled to receive
\n[*]%, and iVillage will be entitled to receive [*]%, of all Advertising Revenue
\n(net of any Commission) in excess of $[*]. In the event that Intuit exercises
\nthe option contemplated in Section 7.5 hereof to subsidize the operating costs
\nof Armchair Millionaire in any renewal term, then Intuit will be entitled to
\nreceive [*]%, and iVillage will be entitled to receive [*]%, of all Advertising
\nRevenue (net of any Commission) in any Intuit fiscal quarter (October 31,
\nJanuary 31, April 30, July 31) until an amount equal to the aggregate amount
\ncontributed by iVillage in the previous Intuit fiscal quarters in such renewal
\nterm has been recovered. Thereafter, until the end of such renewal term, Intuit
\nwill be entitled to receive [*]%, and iVillage will be entitled to receive [*]%,
\nof all Advertising Revenue (net of Commission).<\/p>\n
4.2 Payment and Reporting. The allocation of Advertising
\nRevenue described in the Section 4.1 will be determined at the end of each
\nIntuit fiscal quarter, and iVillage will make payment within thirty (30) days
\nafter the end of such quarter. iVillage will provide to Intuit, together with
\nits payment (or, if no payment is due for any applicable quarter, within
\nthirty (30) days after the end of such quarter), a report in reasonable detail
\nsetting forth the calculation of the amounts payable.<\/p>\n
4.3 Audit Rights. Intuit will have the right, at its own
\nexpense, to direct an independent certified public accounting firm to inspect
\nand audit all of the accounting and sales books and records of iVillage that
\nare relevant to either (a) the performance by iVillage of its funding
\ncommitment, as defined in Section 2.1 above, (b) Advertising Revenue arising
\nout of or associated with Armchair Millionaire or, (c) the operating costs
\narising out of or associated with Armchair Millionaire, but only in the event
\nthat Intuit exercises this option contemplated in Section 7.5 hereof, provided
\nthat (w) any such inspection and audit will be conducted during regular
\nbusiness hours in such a manner as not to interfere with normal business
\nactivities; (x) in no event will audits be made hereunder more frequently than
\nonce each calendar year; (y) if any audit should disclose an underpayment,
\niVillage will immediately provide such funding or pay such amount to Intuit,
\nas appropriate; and (z) the reasonable fees and expenses relating to any audit
\nwhich reveals an underpayment in excess of ten percent (10%) of thc amount
\nowing or an over-allocation of operating expense in excess of ten percent
\n(10%) of the amount actually incurred, will be borne entirely by iVillage.<\/p>\n
-6-<\/p>\n
5. Additional Agreements.<\/p>\n
5.1 Intuit Media Purchase Commitment. Intuit will purchase,
\nduring the three (3) months following the Launch Date, an aggregate of at least
\n$[*] in banner advertisements relating to Armchair Millionaire on the iVillage
\nProperties, at a price equal to $40 per thousand Page Views.<\/p>\n
5.2 Traffic Targets. Each of Intuit and iVillage will
\ndeliver the number of Guaranteed Page Views set forth on Exhibit A hereto
\nduring the ten (10) months following the Launch Date. Intuit and iVillage will
\nnegotiate in good faith to establish Ouaranteed Page View commitments for the
\ntwelve (12) months following the first anniversary of the Launch Date, which
\ncommitments will be attached to this Agreement as a replacement Exhibit A. If
\nthe number of Page Views delivered either by Intuit or iVillage is not at
\nleast [*]% of the number of Guaranteed Page Views in any period, then the party
\nresponsible for the deficiency will provide to Armchair Millionaire “make goods”
\nor similar advertising credits having a value equal to the aggregate value of
\nthe deficiency (determined by multiplying the number of Page Views that comprise
\nthe deficiency by S.034).<\/p>\n
5.3 Exclusivity.<\/p>\n
5.3.1 During the Exclusive Carriage Period, Intuit
\nwill have the exclusive right (a) to feature Armchair Millionaire Content on
\nthe Quicken Financial Network, and iVillage will not permit any third party to
\ndisplay all or any portion of the Armchair Millionaire Content, without the
\nprior approval of Intuit, and (b) to provide Financial Content for Armchair
\nMillionaire, and iVillage will not permit any third party Financial Content, nor
\nLinks to any third party Financial Content, to appear in Armchair Millionaire,
\nwithout the prior approval of Intuit.<\/p>\n
5.3.2 Following the Exclusive Carriage Period and
\ncontinuing until the completion of the Term, neither iVillage nor its
\nAffiliates will use or display the Intuit Financial Content on any other WWW
\nsite that may feature the Armchair Millionaire Content or any portion thereof.<\/p>\n
5.3.3 During the Term, neither iVillage nor any of its
\nAffiliates will (a) provide any Armchair Millionaire Content or any personal
\nfinance product or service to Yahoo!, Inc. or any of its Affiliates, or (b)
\nwithout the prior approval of Intuit, which will not be withheld unreasonably,
\nprovide any Financial Content or any personal finance product or service to,
\nor use any Financial Content or any personal finance product or service
\ndeveloped by, Microsoft Corporation or any of its Affiliates; provided, that
\niVillage and its Affliates shall be permitted to distribute Financial Content
\nand financial products and services (x) using the “Active Desktop”
\ndistribution functionality incorporated in the Internet Explorer WWW browser
\ndistributed by Microsoft Corporation or (y) as a component part of the
\n“Women’s Network” distributed on the Microsoft Network (MSN). It is understood
\nand agreed that it will not be deemed unreasonable for Intuit to refuse to
\npermit iVillage to provide any Financial Content or any personal finance
\nproduct or service to, or use any Financial Content or any personal finance
\nproduct or service developed by or for, the Microsoft Money, Microsoft
\nInvestor and Microsoft Money Insider WWW sites, and any enhancements,
\nmodifications, extensions, combinations or private label versions of all or
\nany portion thereof that may occur from time to time during the Term.<\/p>\n
-7-<\/p>\n
6. Licenses and Ownership.<\/p>\n
6.1 Grant of License by iVillage. iVillage hereby grants to
\nIntuit during the term of this Agreement a non-exclusive, royalty-free,
\nworldwide license under all of iVillage’s Intellectual Property Rights to use,
\nmodify, reproduce, publicly display, publicly perform, distribute and transmit
\n(a) the iVillage Brand Features in the Intuit Properties, in connection with
\nthe distribution, marketing and promotion of Armchair Millionaire, subject in
\neach case to compliance with the iVillage Brand Guidelines, and (b) the
\nArmchair Millionaire Content, or any portion thereof, in the Intuit
\nProperties; provided, however, that (i) the primary purpose of this use is to
\ndrive traffic to the Armchair Millionaire site and (ii) Intuit shall not by
\nthis license display the Armchair Millionaire Content in such a manner as to
\nrecreate the Armchair Millionaire site in its entirety within the Intuit
\nProperties.<\/p>\n
6.2 Grant of License by Intuit. Intuit hereby grants to
\niVillage a nonexclusive, royalty-free, worldwide license under all of Intuit’s
\nIntellectual Property Rights (a) to use, modify, reproduce, publicly display,
\npublicly perform, distribute and transmit the Intuit Brand Features in
\nArmchair Millionaire (in the manner described in this Agreement), in
\nconnection with the distribution, marketing and promotion of Armchair
\nMillionaire, subject in each case to compliance with the Intuit Brand
\nGuidelines and (b) to use, reproduce, publicly display and transmit the Intuit
\nFinancial Content provided by Intuit for inclusion in the Armchair
\nMillionaire site.<\/p>\n
6.3 Ownership.<\/p>\n
6.3.1. Armchair Mi11ionaire Brand and Content. As
\nbetween Intuit and iVillage, (a) iVillage will have full and exclusive right,
\ntitle and ownership interest in and to the iVillage Brand Features, the
\nArmchair Millionaire Content (other than the Intuit Financial Content), the
\nArmchair Millionaire Brand Features and the Intellectual Property Rights
\ntherein and (b) Intuit will have full and exclusive right, title and
\nownership interest in and to Intuit Brand Features, the Intuit Financial
\nContent and the Intellectual Property Rights therein.<\/p>\n
6.3.2 Customer Database. Intuit and iVillage will
\njointly own all right, title and interest in and to the customer database for
\nArmchair Millionaire and all information regarding users of Armchair
\nMillionaire included therein. Without the prior written consent of the other
\nparty hereto, neither party will sell, or other authorize any third party to
\nuse, any portion of the customer database for Armchair Millionaire or any
\ninformation regarding users of Armchair Millionaire included therein. Intuit
\nand iVillage will collaborate to develop a mutually acceptable policy
\nconcerning the dissemination of information from the customer database.<\/p>\n
7. Term and Termination<\/p>\n
7.1 Term. This Agreement will commence on the Effective Date
\nand, subject to earlier termination pursuant to Sections 7.2 or 7.3 below,
\nwill continue thereafter through and including the date that is ten (10)
\nmonths following the Launch Date (the “Initial Term”), subject to automatic
\nextension at the sole option of Intuit for a series of one (1) year terms
\nthereafter. Intuit will provide written notice of its intent to exercise its
\noption to extend the term of this Agreement within thirty (30) days of the
\nexpiration of the initial term or any renewal term (each, a “Renewal Notice
\nDate”). Notwithstanding the foregoing, however, iVillage shall not be
\nobligated to continue to perform its obligations under this Agreement in any
\nrenewal term if the sum of the aggregate amounts billed for the license or
\nsale of any Advertising Rights during the period beginning on the Launch Date
\nor the first day of the applicable renewal term, as the case may be, and
\nending on the date that is thirty (30) days prior to<\/p>\n
-8-<\/p>\n
the applicable Renewal Notice Date (and annualized to derive a pro forma gross
\nrevenue projection for the Initial Term or the renewal term, as the case may
\nbe) is less than $[*]. Upon termination, all rights and obligations of
\neach party hereto will cease as of the date of termination and any amounts
\nowed hereunder (other than the funding commitments contemplated in Section 2
\nhereof) will be paid in full, subject to Section 7.4 below; provided, however,
\nthat rights and obligations set forth in Sections 7, 8, 9 and 10 will survive
\nthe termination of this Agreement.<\/p>\n
7.2 Automatic Termination. This Agreement will also
\nterminate automatically and effective immediately upon the earlier to occur of:<\/p>\n
(a) the dissolution or liquidation of Intuit or
\niVillage; or<\/p>\n
(b) the appointment of a trustee in bankruptcy for
\nIntuit or iVillage, an assignment of assets for the benefit of Intuit’s or
\niVillage’s creditors or the adjudication of bankruptcy with respect to Intuit
\nor iVillage.<\/p>\n
7.3 Termination for Breach. In the event that either Intuit
\nor iVillage commits any material breach under this Agreement and such breach is
\nnot cured within fifteen (15) days following receipt of written notice thereof
\nfrom the other party hereto, such other party will have the right (but not the
\nobligation) to terminate this Agreement. If Intuit shall terminate this
\nAgreement pursuant to this Section 7.3, iVillage shall refund to Intuit, within
\nten (10) days following the effective date of such termination, all funds
\nactually paid by Intuit to iVillage pursuant to Section 2.2 above, net of
\nAdvertising Revenue actually received by Intuit pursuant to Section 4.1 above,
\nand such refund shall be the sole and exclusive legal remedy of Intuit for
\ndamages resulting from or relating to this Agreement, through the date of
\ntermination (it being understood that Intuit shall nonetheless have the right
\nto pursue any equitable remedy available to it with respect to a breach of
\nSection 8.4 or 9 hereof).<\/p>\n
7.4 Continuing Obligations to Pay Commissions.
\nNotwithstanding any termination of this Agreement, the terms of Section 4
\nabove will survive with respect to all Advertising Revenue collected by
\niVillage following the effective date of termination in respect of orders
\nsecured prior to the effective date of termination,<\/p>\n
7.5 Intuit Option. If, pursuant to Section 7.1 above, Intuit
\nshould exercise its option to extend the Term, and iVillage should determine
\nto discontinue or terminate operation of the Armchair Millionaire site rather
\nthan commit to such extension, then iVillage shall promptly deliver written
\nnotice of such determination to lntuit, and Intuit shall have the right,
\nexercisable for a period of sixty (60) days following the date of such notice
\n(during which period iVillage will continue to operate the Armchair
\nMillionaire), to obligate iVillage to continue operation of the Armchair
\nMillionaire site for the applicable renewal period; provided that Intuit
\ncommits to fund up to an amount equal to the difference between
\n(x) seventy-five percent (75%) of the projected annual operating costs for
\nArmchair Millionaire (as defined in Exhibit C hereto and amended annually by
\nmutual consent of iVillage and Intuit) for such renewal period and (y) the
\nannual operating costs that iVillage determines in good faith that it will be
\nable to recoup during such renewal period. Such sum will be paid in cash on a
\nquarterly basis, within thirty (30) days following the conclusion of any
\nIntuit fiscal quarter in the renewal period with respect to which the option
\nis exercised,<\/p>\n
-9-<\/p>\n
[*] Confidential treatment requested.<\/p>\n
8. Limitation of Liability and Indemnity.<\/p>\n
8.1 Representations and Warranties. Each party represents
\nand warrants to the other party that such party has the full corporate right,
\npower and authority to enter into this Agreement and to perform the acts
\nrequired of it hereunder; and the execution of this Agreement by such party,
\nand the performance by such party of its obligations and duties hereunder, do
\nnot and will not violate or contravene any applicable law or regulation or any
\nagreement to which such party is a party or by which it is otherwise bound,
\nand when executed and delivered by such party, this Agreement will constitute
\nthe legal, valid and binding obligation of such party, enforceable against
\nsuch party in accordance with its terms. In addition, (a) iVillage represents
\nand warrants to Intuit that it is the owner of all right, title and interest
\nin and to, or is the exclusive licensee with right to use, reproduce,
\ndistribute and sell as contemplated in this Agreement, the iVillage Brand
\nFeatures, the Armchair Millionaire Brand Features and the Armchair Millionaire
\nContent (other than the Intuit Financial Content), and that the iVillage Brand
\nFeatures, the Armchair Millionaire Brand Features and the Armchair Millionaire
\nContent (other than the Intuit Financial Content), do not and will not
\ninfringe on or violate any Intellectual Property Right of any third party, or
\nviolate any applicable law, regulation or third party right when included in a
\nmanner consistent with this Agreement, and (b) Intuit represents and warrants
\nto iVillage that it is the owner of all right, title and interest in and to, or
\nis the exclusive licensee with right to use, reproduce, distribute and sell as
\ncontemplated in this Agreement, the Intuit Brand Features and the Intuit
\nFinancial Content, and that the Intuit Brand Features and the Intuit Financial
\nContent do not and will not infringe on or violate any Intellectual Property
\nRight of any third party, or violate any applicable law, regulation or third
\nparty right when included in a manner consistent with this Agreement. In the
\nevent that any party becomes aware of any such infringement (or alleged
\ninfringement) or violation, such party will promptly notify the other party
\nand shall provide all information relating to such matters as such other party
\nmay reasonably request.<\/p>\n
8.2 Limitation of Liability. EXCEPT AS PROVIDED IN THIS
\nSECTION 8, UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER
\nPARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES
\n(EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES),
\nARISING FROM ANY PROVISION OF THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO,
\nLOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS.<\/p>\n
8.3 No Additional Warranties. EXCEPT AS EXPRESSLY SET FORTH
\nIN SECTION 8.1 ABOVE, NEITHER PARTY MAKES, AND EACH PARTY HEREBY
\nSPECIFICALLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR
\nIMPLIED, REGARDING THE PRODUCTS AND SERVICES CONTEMPLATED BY THIS AGREEMENT,
\nINCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
\nPURPOSE OR NON-INFRINGEMENT AND IMPLIED WARRANTIES ARISING FROM COURSE OF
\nDEALING OR COURSE OF PERFORMANCE.<\/p>\n
8.4 iVillage Obligation to Defend. Subject to the
\nlimitations set forth below, iVillage, at its own expense, will defend, or at
\nits option settle, any claim, suit or proceeding against Intuit and pay any
\nfinal judgment entered or settlement against Intuit in any such claim, suit or
\nproceeding, to the extent that such claim, suit or proceeding is based upon
\n(a) the infringement of any trademark or service mark rights by the iVillage
\nBrand Features; or (b) the infringement or misappropriation of any patent,
\ncopyright or trade secret or the violation of any third party right or any
\nthird party claim resulting from the dissemination or use of any Armchair
\nMillionaire Content (other than the Intuit Financial Content) on any Intuit
\nProperty; or (c) the failure by iVillage to comply with the<\/p>\n
-10-<\/p>\n
requirements of law or regulations that are applicable to Armchair Millionaire
\nfrom time to time. iVillage will have no obligation to Intuit pursuant to this
\nSection 8.3 unless: (x) Intuit gives iVillage prompt written notice of the
\nclaim, suit or proceeding and cooperates reasonably with iVillage; and (y)
\niVillage is given the right to control and direct the investigation,
\npreparation, defense and settlement of the claim, suit or proceeding.<\/p>\n
8.5 Intuit Obligation to Defend. Subject to the limitations
\nset forth below, Intuit, at its own expense, will defend, or at its option
\nsettle, any claim, suit or proceeding against iVillage and pay any final
\njudgment entered or settlement against iVillage in any such claim, suit or
\nproceeding, to the extent that such claim, suit or proceeding is based upon
\n(a) the infringement of any trademark or service mark rights by the Intuit
\nBrand Features; or (b) the infringement or misappropriation of any patent,
\ncopyright or trade secret or the violation of any third party right or any
\nthird party claim resulting from the dissemination or use of the Intuit
\nFinancial Content on Armchair Millionaire; or (c) the failure by Intuit to
\ncomply with the requirements of law or regulations that are applicable to
\nIntuit Financial Content from time to time. Intuit will have no obligation to
\niVillage pursuant to this Section 8.4 unless: (x) iVillage gives Intuit prompt
\nwritten notice of the claim, suit or proceeding and cooperates reasonably
\nwith Intuit; and (y) Intuit is given the right to control and direct the
\ninvestigation, preparation, defense and settlement of the claim, suit or
\nproceeding.<\/p>\n
8.6 Options. If either party receives notice of an alleged
\ninfringement, it will have the right, at its sole option, (a) to obtain the
\nright for the other party to continue use of the allegedly infringing
\nsoftware, system, content or brand feature, as applicable, or (b) to replace
\nor modify the allegedly infringing software, system, content or brand feature,
\nas applicable, so that it is no longer infringing but retains equivalent
\nfunctionality and value, or (c) to remove the allegedly infringing content.<\/p>\n
8.7 EXCLUSIVE REMEDIES. THE RIGHTS AND REMEDIES SET FORTH IN
\nTHIS SECTION 8 CONSTITUTE THE ENTIRE OBLIGATIONS AND THE EXCLUSIVE REMEDIES
\nOF THE PARTIES CONCERNING INFRINGEMENT OF THE INTELLECTUAL PROPERTY RIGHTS OF
\nTHIRD PARTIES OR THIRD PARTY CLAIMS.<\/p>\n
9. Confidentiality.<\/p>\n
9.1 The parties recognize that, in connection with the
\nperformance of this Agreement each of them may disclose to the others its
\nConfidential Information. The party receiving any Confidential Information
\nagrees to maintain the confidential status of such Confidential Information
\nand not to use any such Confidential Information for any purpose other than the
\npurpose for which it was originally disclosed to the receiving party, and not
\nto disclose any of such Confidential Information to any third party. No party
\nwill disclose the others’ Confidential Information to its employees and agents
\nexcept on a “need-to-know” basis.<\/p>\n
9.2 The parties acknowledge and agree that each may
\ndisclose Confidential Information: (a) as required by law or the rules of the
\nNational Association of Securities Dealers, Inc. or any applicable securities
\nexchange; (b) to their respective directors, officers, employees, attorneys,
\naccountants and other advisors, who are under an obligation of
\nconfidentiality, on a “need-to-know” basis; (c) to investors or joint venture
\npartners, who are under an obligation of confidentiality, on a
\n“need-to-know” basis; or (d) in connection with disputes or litigation between
\nthe parties involving such Confidential Information and each party will
\nendeavor to limit disclosure to that purpose and to ensure maximum application
\nof all appropriate judicial safeguards (such as placing documents under seal).
\nIn<\/p>\n
-11-<\/p>\n
the event a party is required to disclose Confidential Information as required
\nby law, such party will, to the extent practicable, in advance of such
\ndisclosure, provide the disclosing party with prompt notice of such
\nrequirement. Such party also agrees, to the extent legally permissible, to
\nprovide the disclosing party, in advance of any such disclosure, with copies
\nof any information or documents such party intends to disclose (and, if
\napplicable, the text of the disclosure language itself) and to cooperate with
\nthe disclosing party to the extent the disclosing party may seek to limit such
\ndisclosure.<\/p>\n
10. Miscellaneous.<\/p>\n
10.1 Notices. Except as otherwise provided herein, any
\nnotice or other communication to be given hereunder will be in writing and
\nwill be (as elected by the party giving such notice): (a) personally
\ndelivered; (b) transmitted by postage prepaid registered or certified
\nairmail, return receipt requested; (c) transmitted by electronic mail via
\nthe Internet with receipt being acknowledged by the recipient by return
\nelectronic mail (with a copy of such transmission concurrently transmitted by
\npostage prepaid registered or certified airmail, return receipt requested);
\n(d) transmitted by facsimile (with a copy of such transmission by postage
\nprepaid registered or certified airmail, return receipt requested); or (e)
\ndeposited prepaid with a nationally recognized overnight courier service.
\nUnless otherwise provided herein, all notices will be deemed to have been duly
\ngiven on: (x) the date of receipt (or if delivery is refused, the date of
\nsuch refusal) if delivered personally, by electronic mail, facsimile or by
\ncourier; or (y) three (3) days after the date of posting if transmitted by
\nmail. Notice hereunder will be directed to a party at the address for such party
\nas set forth on the signature page of this Agreement. Either party may change
\nits address for notice purposes hereof on written notice to the other party
\npursuant to this Section 10.1.<\/p>\n
10.2 Counterparts. This Agreement may be executed in any
\nnumber of counterparts with the same effect as if all parties hereto had all
\nsigned the same document. All counterparts wi1l be construed together and will
\nconstitute one agreement.<\/p>\n
10.3 No Assignment. Neither party will transfer or assign any
\nrights or delegate any obligations hereunder, in whole or in part, whether
\nvoluntarily or by operation of law, without the prior written consent of the
\nother party. Any purported transfer, assignment or delegation by either party
\nwithout the appropriate prior written approval will be null and void and of no
\nforce or effect. Notwithstanding the foregoing, each party will have the right
\nto assign this Agreement to any successor of such party by way of merger or
\nconsolidation or the acquisition of all or substantially all of the business
\nand assets of the assigning party relating to the Agreement; provided,
\nhowever, that the trademark, logo, tradename or other identifying information
\nof any such successor entity shall not be included in Armchair Millionaire, or
\nin any advertising, marketing or promotional material of any kind relating to
\nArmchair Millionaire, without the prior written consent of the other party to
\nthis Agreement.<\/p>\n
10.4 Headings. Sections, titles or captions in no way define,
\nlimit, extend or describe the scope of this Agreement nor the intent of any of
\nits provisions.<\/p>\n
10.5 Severability. Any provision of this Agreement that is
\nprohibited or unenforceable in any jurisdiction will, as to such jurisdiction,
\nbe ineffective to the extent of such prohibition or unenforceability without
\ninvalidating the remaining portions hereof or affecting the validity or
\nenforceability of such provision in any other jurisdiction.<\/p>\n
-12-<\/p>\n
10.6 Entire Agreement. This Agreement contains the entire
\nagreement of the parties with respect to the subject matter hereof, and
\nsupersedes all prior and\/or contemporaneous agreements or understandings,
\nwritten or oral, between the parties with respect to the subject matter
\nhereof.<\/p>\n
10.7 Governing Law. This Agreement will be governed by and
\ninterpreted under the laws of the State of California, without giving effect
\nto applicable conflicts of law principles.<\/p>\n
10.8 Amendment. This Agreement may not be amended or
\nmodified by the parties in any manner, except by an instrument in writing
\nsigned on behalf of each of the parties to which such amendment or
\nmodification applies by a duly authorized officer or representative.<\/p>\n
10.9 Waiver. Any of the provisions of this Agreement may be
\nwaived by the party entitled to the benefit thereof. Neither party will be
\ndeemed, by any act or omission, to have waived any of its rights or remedies
\nhereunder unless such waiver is in writing and signed by the waiving party,
\nand then only to the extent specifically set forth in such writing. A waiver
\nwith reference to one event will not be construed as continuing or as a bar to
\nor waiver of any right or remedy as to a subsequent event.<\/p>\n
10.10 Recovery of Costs and Expenses. If either party to
\nthis Agreement brings an action against the other party to enforce its rights
\nunder this Agreement, the prevailing party will be entitled to recover its
\ncosts and expenses, including, without limitation, attorneys’ fees and costs
\nincurred in connection with such action, including any appeal of such action.<\/p>\n
-13-<\/p>\n
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
\nbe executed by their respective duly authorized officers or representatives as
\nof the Effective Date.<\/p>\n
Intuit Inc.<\/p>\n
By: Jay H. O’Connor
\n ———————————<\/p>\n
Its: Director
\n ———————————<\/p>\n
Address: 2535 GARCIA AVE.
\n —————————-
\n MOUNTAIN VIEW, CA 92043
\n ————————————–<\/p>\n
————————————–<\/p>\n
Fax: (415) 944-6436
\n ——————————-<\/p>\n
email: jay-oconnor@intuit.com
\n ——————————-<\/p>\n
iVillage Inc.<\/p>\n
By: Steve Elkes
\n ———————————<\/p>\n
Its: Vice President
\n ———————————<\/p>\n
Address: 170 Fifth Ave.
\n —————————-
\n New York, NY
\n ————————————–<\/p>\n
————————————–<\/p>\n
Fax: (212) 604-9133
\n ——————————-<\/p>\n
email: selkes@aol.com
\n ——————————-<\/p>\n
-14-<\/p>\n
EXHIBIT A<\/p>\n
Guaranteed Page Views<\/p>\n
\n\n Growth
\n Rate Month 3 Month 4 Month 5 Month 6 Month 7 Month 8 <\/p>\n
\n
\n
\n
\n
\n
\n
\n
\nIntuit Media Buy [*]% [*] [*]
\niVillage [*]% [*] [*] [*] [*] [*] [*]
\nIntuit [*]% [*] [*] [*] [*] [*] [*]
\nFrom WWW links [*] [*] [*] [*] [*] [*]
\nsubtotal [*] [*] [*] [*] [*] [*]
\n*Repeat traffic [*] [*] [*] [*] [*] [*]
\nTOTAL [*] [*] [*] [*] [*] [*] <\/p>\nAd Inventory-pp [*] [*] [*] [*] [*] [*] [*]
\nper visit <\/p>\n
Percent Ads sold [*] [*]% [*]% [*]% [*]% [*]% [*]%
\nout
\nAverge CPM $[*] $[*] $[*] $[*] $[*] $[*] $[*]
\n(Gross) <\/p>\n
Total revenue $[*] $[*] $[*] $[*] $[*] $[*] <\/p>\n
\n Month 9 Month 10 Month 11 Month 12 TOTAL<\/p>\n
\n
\n
\n
\n
\n
\nIntuit Media Buy [*]
\niVillage [*] [*] [*] [*] [*]
\nIntuit [*] [*] [*] [*] [*]
\nFrom WWW links [*] [*] [*] [*] [*]
\nsubtotal [*] [*] [*] [*] [*]
\n*Repeat traffic [*] [*] [*] [*] [*]
\nTOTAL [*] [*] [*] [*] [*]<\/p>\nAd Inventory-pp [*] [*] [*] [*] [*]
\nper visit <\/p>\n
Percent Ads sold [*]% [*]% [*]% [*]% [*]%
\nout
\nAverge CPM $[*] $[*] $[*] $[*] $[*]
\n(Gross) <\/p>\n
Total revenue $[*] $[*] $[*] $[*] $[*]<\/p>\n
<\/c><\/c><\/c><\/c><\/c><\/s><\/caption>\n
<\/c><\/c><\/c><\/c><\/c><\/c><\/c><\/s><\/caption>\n<\/table>\n
*[*]% of bought\/[*]% of previous months traffic repeat<\/p>\n
[*] Confidential treatment requested.<\/p>\n
EXHIBIT B<\/p>\n
Intuit Online Software Applications<\/p>\n
The Intuit Online Software Applications to be integrated into
\nArmchair Millionaire on the terms and subject to the conditions of Section 3.8
\nof the Agreement shall consist exclusively of the following:<\/p>\n
1. retirement planning tool;<\/p>\n
2. glossary function; and<\/p>\n
3. introductory portfolio management tool.<\/p>\n
EXHIBIT C<\/p>\n
Armchair Millionaire Operating Costs<\/p>\n
TOTAL: $[*] <\/p>\n
OVERHEAD SUBTOTAL: $[*]
\n– Off-line marketing $[*]
\n– Banner creation $[*]
\n– Contest Administration $[*]
\n– Ad trafficking $[*]<\/p>\n
STAFF\/FREELANCE SUBTOTAL: $[*]
\n– Executive Producer $[*]
\n– Managing Producer $[*]
\n– Benefits, travel & entertainment $[*]
\n– Copy editor\/editorial assistant (freelance) $[*]
\n– Community Manager (freelance) $[*]
\n– Editorial contributions and community leaders (freelance) $[*] <\/p>\n
SITE HOSTING SUBTOTAL: $[*]
\n– Hosting\/Webmastering (database and message board maintenance, site traffic
\n data) $[*]
\n– Server\/Installation $[*]
\n– Database licensing (Dynamic page generation, Membership database, Ad
\n management) $[*]<\/p>\n
COST OF SALES SUBTOTAL: $[*]
\n– Five Percent ([*]%) of gross advertising revenue (Projected at S[*])<\/p>\n
July 14, 1998<\/p>\n
Mr. Lewis Schiff
\nExecutive Producer
\nArmchair Millionaire
\niVillage
\n170 Fifth Avenue
\nNew York, NY 10010<\/p>\n
Lewis:<\/p>\n
Pursuant to Section 7.1 of the “Joint Activities Agreement” between Intuit and
\niVillage dated September, 1997, this letter serves as written notice of Intuit’s
\nintent to exercise its option to renew the term of the Agreement.<\/p>\n
Sincerely,<\/p>\n
\/s\/ Jay O’Connor<\/p>\n
Jay O’Connor
\nDirector<\/p>\n
cc: Steve Elkes, iVillage<\/p>\n
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