{"id":42830,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/sponsorship-agreement-drkoop-com-inc-and-vitamin-shoppe.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"sponsorship-agreement-drkoop-com-inc-and-vitamin-shoppe","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/sponsorship-agreement-drkoop-com-inc-and-vitamin-shoppe.html","title":{"rendered":"Sponsorship Agreement &#8211; DrKoop.com Inc. and Vitamin Shoppe Industries Inc."},"content":{"rendered":"<pre>\n                              SPONSORSHIP AGREEMENT\n\n         This Sponsorship Agreement (the \"Agreement\") is entered into as of the\n11th day of March, 1999 by and between drkoop.com, inc., a Delaware corporation,\nlocated at 8920 Business Park Drive, Longhorn Suite, Austin, Texas 78759\n(\"drkoop.com\"), and Vitamin Shoppe Industries, Inc., a New Jersey corporation,\nlocated at 4700 Westside Avenue, North Bergen, New Jersey 07047 (\"Sponsor\").\n\n         WHEREAS, drkoop.com develops, markets and maintains an integrated suite\nof Internet enabled, consumer oriented software applications and services,\nincluding but not limited to, drkoop.com. electronic data interchange services,\nand advertising and promotional services on the Internet at the website\nhttp:\/\/www.drkoop.com (together with any successor or replacement websites, the\n\"drkoop.com Website\");\n\n         WHEREAS, Sponsor markets and sells vitamins and nutritional supplements\non the Internet at the website http:\/\/www.vitaminshoppe.com (together with any\nsuccessor or replacement websites, the \"Sponsor Website\"; and together with the\ndrkoop.com Website, the \"Sites\"); and\n\n         WHEREAS, Sponsor desires to have certain * * * rights with respect to\nvitamins and nutritional supplements on the drkoop.com Website and to be the * *\n* vitamin and nutritional supplement tenant in the E-Commerce area of the\ndrkoop.com Website and drkoop.com desires to promote Sponsor for vitamin and\nnutritional supplements and to make Sponsor its' * * * vitamin and nutritional\nsupplement tenant pursuant to the terms and conditions contained in this\nAgreement.\n\n         NOW, THEREFORE, in consideration of the mutual covenants and promises\ncontained herein and for other good and valuable consideration the receipt and\nadequacy of which are hereby acknowledged, the parties hereto agree as follows:\n\n____________________\nConfidential treatment has been requested for portions of this exhibit. The copy\nfiled herewith omits the information subject to the confidentiality request.\nOmissions are designated as * * *. A complete version of this exhibit has been\nfiled separately with the Securities and Exchange Commission.\n\n* * *    Certain information on this page has been omitted and filed\n         separately with the Securities and Exchange Commission. Confidential\n         treatment has been requested with respect to the omitted portions.\n\n\n\n \n                                  ARTICLE I.\n                             * * * VITAMIN SPONSOR\n\n         1.1.  * * * VITAMIN SPONSOR. Throughout the Term (as defined below),\nSponsor shall be the * * * vitamin and supplement sponsor of, and the * * *\nvitamin and supplement advertiser on, the drkoop.com Website * * *\n\n         1.2.  SPONSOR PLACEMENTS. During the Term, in no way limiting the\nforegoing in Section 1.1, Sponsor will receive the following sponsorship and\npromotional placements on the drkoop.com Website:\n\n               (i)    Sponsor shall be the * * * sponsor of the Nutrition Center\non the drkoop.com Website and each area (other than the \"Daily Special\" area,\nthe \"Healthy Recipes\" area and any other area which may be created in the future\nwhich specifically relates to cooking or food recipes (collectively, the\n\"Excluded Areas\")) within the Nutrition Center, including, the \"Vitamins &amp; Supplements\" area, the \"Vitamins and Minerals\" area, the \"Nutrition News\" area,\nthe \"Nutrition for Healthy Living\" area and the \"Nutrition for your Condition\"\narea (collectively, the \"Sponsor Areas\"). * * *\n\n               (ii)   * * *\n\n               (iii)  From time to time, drkoop.com shall create content which\nfeatures vitamins and nutritional supplements. Sponsor's Advertising Content\nshall be displayed on such pages which host vitamins and nutritional supplement\ncontent to the same extent and subject to the same restrictions as such Sponsor\nAdvertising Content is displayed in the Sponsor Areas.\n\n               (iv)   * * * Drkoop.com's obligations with respect to each area\nof the drkoop.com Website set forth in this Section 1.2 shall also apply to all\nareas which are successors or replacements to such areas and to all new vitamin\nand nutrition areas on the drkoop.com Website launched on the drkoop.com Website\nafter the date of this Agreement. * * * Sponsor may promote the sale of vitamins\nand supplements in the Sponsor Areas.\n\n         1.3.  IMPRESSIONS. Not including any permanent Sponsor links, banners\nor buttons pursuant to Section 1.2, drkoop.com shall, during the Initial Term\n(as defined below) provide * * * advertising banner and e-commerce tile\nimpressions consisting of Sponsor Advertising Content* * * shall be delivered\nduring each month of the Initial Term. If by the end of the Initial Term\ndrkoop.com has not delivered the foregoing number of impressions, then, as\nSponsor's sole remedy for such breach, the Term of this Agreement shall be\nextended until drkoop.com has satisfied its obligations under this Section.\n\n____________________\n* * *    Certain information on this page has been omitted and filed\n         separately with the Securities and Exchange Commission. Confidential\n         treatment has been requested with respect to the omitted portions.\n\n                                       2\n\n \n         1.4.  DR. KOOP HEALTH LINKS. In addition to the fees specified in\nSection 2.5.1, Sponsor shall pay * * * to drkoop.com and in exchange therefore\nshall have the right to use as many Dr. Koop Health Links as Sponsor, in its\nsole discretion, wishes to use, all in accordance with the terms of the\ndrkoop.com Healthlinks Agreement, the form of which is attached hereto as\nExhibit B.\n---------\n\n         1.5.  * * *\n\n         1.6.  MODIFICATIONS.. Each party reserves the right to modify the\ndesign, organization, structure, look and feel, navigation and other elements of\nits Site, provided, that drkoop.com may not, without the prior written consent\nof Sponsor, substantially alter, change or modify the look, feel or\nfunctionality of the Sponsor Areas of the drkoop.com Website* * *.\n\n                                  ARTICLE II.\n                              SPONSORSHIP POLICY\n\n         2.1.  CONTENT. For each of the placements described in Section 1,\nincluding all banner advertisements and e-commerce tiles, Sponsor shall provide\ndrkoop.com with all content including all trademarks, logos or banners (the\n\"Sponsor Advertising Content\"), in accordance with the specifications set forth\non Exhibit C attached hereto, which will be displayed on the drkoop.com Website\nand which will link, in Sponsor's discretion, to either the Sponsor Site or\nVitamin Buzz. The parties hereto agree to cooperate and work together in the\nestablishment of all links, buttons and banners placed pursuant to this\nAgreement. Links from one party's Site to the other party's Site shall in no way\nalter the look, feel or functionality of the linked Site.\n\n         2.2.  CHANGES AND CANCELLATIONS. Any cancellations or change orders\nmust be made in writing and acknowledged by drkoop.com. Sponsor shall not be\nrequired to change Sponsor Advertising Content more often than once per month.\nSponsor shall provide drkoop.com with Sponsor Advertising Content artwork at\nleast five business days in advance of the publication date.\n\n         2.3.  STATISTICS. Drkoop.com shall provide Sponsor with Sponsor usage\nreports on a monthly basis. Sponsor shall have the right to use such data for\nits internal business purposes, but may not provide such data for use by third\nparties. Such reports shall contain substantially the same types of information\ndelivered to other of drkoop.com's similarly situated partners, which reports\nwill include information regarding impressions, clickthroughs and any\ninformation known about the users of such areas in aggregate form.\n\n         2.4.  PUBLICATION ERROR. In the event of a publication error in the\nSponsor Advertising Content arising exclusively from the fault of drkoop.com,\nSponsor shall notify drkoop.com of such error and drkoop.com will use reasonable\nefforts to promptly correct the error.\n_____________________________\n* * *    Certain information on this page has been omitted and filed\n         separately with the Securities and Exchange Commission. Confidential\n         treatment has been requested with respect to the omitted portions.\n\n                                       3\n\n \n         2.5.  PAYMENT.\n\n               2.5.1.  FEES. The fee for the placements and other rights\nprovided under this Agreement for the Initial Term (as defined below) is * * *\nis payable within * * * of the date of this Agreement, with the balance of such\nfee payable by Sponsor in * * * consecutive equal installments of * * * payable\nby the * * * of the Initial Term commencing * * * following * * * the Launch\nDate (as defined below).\n\n               2.5.2.  TAXES. Sponsor shall be responsible for the collection\nof any and all value added, consumption, sales, use or similar taxes and fees\npayable with respect to all sales made on the Sponsor Website.\n\n                                 ARTICLE III.\n                               OWNERSHIP OF DATA\n\n         3.1.  USER DATA. Drkoop.com requests its users (\"Individual Users\"), to\nprovide personal information when they sign up for certain services including\nrequesting information on a specific disease, chat rooms and forums (\"User\nData\"). Such User Data is owned by each Individual User and drkoop.com does not\nuse or disclose any such User Data without the consent of the Individual User.\n\n         3.2.  DATA RELEASE TO SPONSOR. Drkoop.com shall provide to Sponsor any\nand all User Data for which the Individual User has specifically authorized\nrelease to Sponsor. In the event that an Individual User grants rights to\nSponsor for use of his User Data, Sponsor shall use its best efforts to keep\nUser Data confidential and shall only use such data in an ethical manner.\nSponsor may use User Data for its owns purposes, but User Data may not be\ndisclosed, sold, assigned, leased or otherwise disposed of to third parties by\nSponsor.\n\n         3.3.  DATA CONFIDENTIALITY. The User Data shall be drkoop.com\nConfidential Information under Article 5 and shall in addition be subject to the\nterms of this Article 3. Sponsor shall be liable for the conduct of its\nemployees, agents and representatives who in any way breach this Amendment.\nSponsor's obligations to treat the User Data as Confidential Information under\nArticle 5 and this Article 3 shall continue in perpetuity following termination\nof this Amendment.\n\n         3.4.  SPONSOR USER DATA. All users on the Sponsor Website, including,\nusers linked to the Sponsor Website from the drkoop.com Website, will be deemed\nto be customers of Sponsor. Accordingly, all rules, policies and operating\nprocedures of Sponsor concerning customer orders, customer service and sales\nwill apply to those customers. Sponsor may change its policies and operating\nprocedures at any time. Sponsor will determine the prices to be charged for\nproducts and other merchandise sold on the Sponsor Website in accordance with\nits own pricing policies. \n\n____________________\n* * *    Certain information on this page has been omitted and filed\n         separately with the Securities and Exchange Commission. Confidential\n         treatment has been requested with respect to the omitted portions.\n\n                                       4\n\n \nPrices and availability on the Sponsor Website may vary from time to time.\nNotwithstanding Section 3.3, the parties hereto hereby agree that title to any\nuser information of any users on the Sponsor Website, including but not limited\nto the name, address and e-mail address of users, obtained by Sponsor from such\nusers shall be owned by the Sponsor. The parties hereto agree that pursuant to\nthis Section 3 they may each collect and own similar information from and with\nrespect to individuals who visit each of their Sites.\n\n                                  ARTICLE IV.\n                                   LICENSES\n\n         4.1.  LICENSES.\n\n               4.1.1.  Subject to the terms and conditions hereof, Sponsor\nhereby represents and warrants that it has the power and authority to grant, and\ndoes hereby grant to drkoop.com a non-exclusive, non-transferable, royalty-free,\nworldwide license to reproduce and display all logos, trademarks, trade names\nand similar identifying material relating to Sponsor (the \"Sponsor Marks\")\nsolely in connection with the promotion, marketing and distribution of the\nparties and the Sites in accordance with the terms hereof, provided, however,\nthat drkoop.com shall, other than as specifically provided for in this\nAgreement, not make any specific use of any Sponsor Mark without first\nsubmitting a sample of such use to Sponsor and obtaining its prior consent,\nwhich consent shall not be unreasonably withheld. The foregoing license shall\nterminate upon the effective date of the expiration or termination of this\nAgreement.\n\n               4.1.2.  Subject to the terms and conditions hereof, drkoop.com\nhereby represents that it has the power and authority to grant, and does hereby\ngrant to Sponsor a non-exclusive, non-transferable, royalty-free, worldwide\nlicense to reproduce and display all logos, trademarks, trade names and similar\nidentifying material relating to drkoop.com and, solely as allowed pursuant to\nthis Agreement, to the Dr. C. Everett Koop name (collectively, the \"drkoop.com\nMarks\") solely in connection with the promotion, marketing and distribution of\nthe parties and the Sites in accordance with the terms hereof, provided,\nhowever, that Sponsor shall, other than as specifically provided for in Section\n4.4 of this Agreement, not make any specific use of any drkoop.com Marks without\nfirst submitting a sample of such use to drkoop.com and obtaining its prior\nconsent, which consent shall not be unreasonably withheld. The foregoing license\nshall terminate upon the effective date of the expiration or termination of this\nAgreement.\n\n         4.2.  INTELLECTUAL PROPERTY OWNERSHIP. Each party shall retain all\nright, title, and interest (including all copyrights, patents, service marks,\ntrademarks and other intellectual property rights) in its Site. Except for the\nlicense granted pursuant to this Agreement, neither party shall acquire any\ninterest in the other party's Site or any other services or materials, or any\ncopies or portions thereof, provided by such party pursuant to this Agreement.\n\n         4.3.  REMOVAL OF MATERIALS. Each party reserves the right to reject or\nremove any content, information, data, logos, trademarks and other materials\n(collectively, \"Materials\") provided by the other from its servers at any time\nif, in its reasonable opinion, it believes that any such Materials infringe any\nthird-party intellectual property right, are libelous or invade the privacy or\nviolate other rights of any person, violate applicable laws or regulations, or\njeopardize \n\n                                       5\n\n \nthe health or safety of any person. Each party will use reasonable efforts to\ncontact the other prior to removing any of its Materials from its servers and\nwill work with the other to resolve the issue as quickly as possible.\n\n         4.4.  USE OF NAME AND LIKENESS. Sponsor shall not have any right to use\nthe name and\/or likeness of Dr. C. Everett Koop or to make any statements,\nwhether written or oral, which state or otherwise imply, directly or indirectly,\nany endorsement from or affiliation with Dr. C. Everett Koop in any manner\nwhatsoever without the prior written consent of drkoop.com, which consent may be\nwithheld in drkoop.com's sole discretion. Notwithstanding the foregoing, Sponsor\nis hereby authorized during the Term to use the logo and tag lines set forth on\nExhibit D, on its Site, in its catalogs and in its stores in connection with its\nmarketing and promotion efforts, in each case in accordance with the terms of\nthis Agreement and subject to the reasonable approval of drkoop.com. Sponsor is\nhereby authorized to place such logo and any one of such tag lines on its Site,\nin its stores and in its catalogs in accordance with the terms of this\nAgreement.\n\n                                  ARTICLE V.\n                                CONFIDENTIALITY\n\n         5.1.  CONFIDENTIALITY. For the purposes of this Agreement,\n\"Confidential Information\" means non-public information about the disclosing\nparty's business or activities that is proprietary and confidential, which shall\ninclude, without limitation, all business, financial, technical and other\ninformation of a party marked or designated \"confidential\" or by its nature or\nthe circumstances surrounding its disclosure should reasonably be regarded as\nconfidential. Confidential Information includes not only written or other\ntangible information, but also information transferred orally, visually,\nelectronically or by any other means. Confidential Information will not include\ninformation that (i) is in or enters the public domain without breach of this\nAgreement, (ii) the receiving party lawfully receives from a third party without\nrestriction on disclosure and without breach of a nondisclosure obligation or\n(iii) the receiving party knew prior to receiving such information from the\ndisclosing party or develops independently.\n\n         5.2.  EXCLUSIONS. Each party agrees (i) that it will not disclose to\nany third party or use any Confidential Information disclosed to it by the other\nexcept as expressly permitted in this Agreement and (ii) that it will take all\nreasonable measures to maintain the confidentiality of all Confidential\nInformation of the other party in its possession or control, which will in no\nevent be less than the measures it uses to maintain the confidentiality of its\nown information of similar importance.\n\n         5.3.  EXCEPTIONS. Notwithstanding the foregoing, each party may\ndisclose Confidential Information (i) to the extent required by a court of\ncompetent jurisdiction or other governmental authority or otherwise as required\nby law, provided, however, that with respect to filing obligations under the\nsecurities laws, each party will, to the extent that it is required to file this\nAgreement, file this Agreement in redacted form reasonably approved by the other\nparty prior to such filing or (ii) on a \"need-to-know\" basis under an obligation\nof confidentiality to its legal counsel, accountants, banks and other financing\nsources and their advisors. Except as set forth in\n\n                                       6\n\n \nthis Section 5.3, the terms and conditions of the Agreement will be deemed to be\nthe Confidential Information of each party and will not be disclosed without the\nprior written consent of the other party.\n\n         5.4.  SPONSOR ADVERTISING CONTENT. drkoop.com hereby confirms and\nagrees that during the Term Sponsor shall be able to serve up its own\nadvertising using NetGravity software and tags, and that drkoop.com shall not do\nanything which would interfere or hamper such serving. Notwithstanding anything\nin this Agreement, all information regarding Sponsor Advertising Content\n(including Sponsor banner advertisements and e-commerce tiles), including all\nusers viewing and clicking information with respect thereto, shall be deemed to\nbe Confidential Information of Sponsor (collectively, \"Sponsor Confidential\nAdvertising Information\"). To the extent that in connection with drkoop.com's\nadvertising efforts, or otherwise, any third party may or will receive any\nSponsor Confidential Advertising Information from or through drkoop.com,\ndrkoop.com agrees that prior to such third party receiving any such information\ndrkoop.com will enter into an agreement with such third party pursuant to which\nsuch third party will agree to keep any such Sponsor Confidential Advertising\nInformation received by such third party confidential to the same extent as\ndrkoop.com is required to keep such information confidential under the\nAgreement. To the extent that any third party breaches any such agreement of\nconfidentiality with drkoop.com, drkoop.com hereby agrees to enforce its rights\nand pursue its remedies under such agreement to the fullest extent permitted by\nlaw, including seeking equitable relief, * * *.\n\n                                  ARTICLE VI.\n                REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION\n\n         6.1.  SPONSOR WARRANTY. Sponsor represents and warrants for the benefit\nof drkoop.com that the Sponsor Advertising Content and Sponsor Marks are true\nand correct and do not and will not for the Term infringe upon or violate: (i)\nany intellectual property rights, including any copyright or trademark rights,\nof any third party and do not and will not constitute a defamation or invasion\nof the rights of privacy or publicity of any kind of any third party, (ii) any\napplicable law, regulation or non-proprietary third-party right. Sponsor further\nrepresents and warrants for the benefit of drkoop.com that the Sponsor\nAdvertising Content does not contain any material which is unlawful, harmful,\nabusive, hateful, obscene, threatening or defamatory and Sponsor is not an\nentity or an affiliate of any entity which engages in the manufacture or\nwholesale distribution of tobacco or tobacco products (such activities are\ncollectively referred to herein as \"Tobacco Industry Affiliation\").\n\n         6.2.  DRKOOP.COM WARRANTY. Drkoop.com represents and warrants for the\nbenefit of Sponsor that the drkoop.com Marks are true and correct and do not and\nwill not for the Term infringe upon or violate: (i) any intellectual property\nrights, including any copyright or \n\n____________________\n* * *    Certain information on this page has been omitted and filed\n         separately with the Securities and Exchange Commission. Confidential\n         treatment has been requested with respect to the omitted portions.\n\n                                       7\n\n \ntrademark rights, of any third party and do not and will not constitute a\ndefamation or invasion of the rights of privacy or publicity of any kind of any\nthird party, (ii) any applicable law, regulation or non-proprietary third-party\nright. Drkoop.com further represents and warrants for the benefit of Sponsor\nthat the drkoop.com Marks do not contain any material which is unlawful,\nharmful, abusive, hateful, obscene, threatening or defamatory, and drkoop.com\nhas the right to license the drkoop.com Marks, including the Dr. C. Everett Koop\nname (to the extent licensed under this Agreement), in accordance with the terms\nof this Agreement.\n\n         6.3.  INDEMNIFICATION. Each party hereby agrees to indemnify and hold\nharmless the other party and its subsidiaries and affiliates, and their\nrespective directors, officers, employees, agents, shareholders, partners,\nmembers and other owners, against any and all claims, actions, demands,\nliabilities, losses, damages, judgments, settlements, costs and expenses\n(including reasonable attorneys' fees) (any or all of the foregoing hereinafter\nreferred to as \"Losses\") insofar as such Losses (or actions in respect thereof)\narise out of or are based on (i) the breach of any representation or warranty\nset forth in Articles 4, 5 or 6, (ii) any breach by it of the licenses granted\nby it hereunder; (iii) the use by it of any trademarks or Content other than in\naccordance with the terms hereof; * * *. For purposes herein, \"Content\" shall\nmean, with respect to each party, the proprietary content delivered by such\nparty to the other party pursuant to this Agreement, including, Sponsor\nAdvertising Content, but only to the extent that such content is not altered by\nthe receiving party, and the proprietary content contained on such party's Site,\nand shall include only that content created by such party, its employees or\nother persons contractually bound to such party to create such content. The\nforegoing obligations are contingent upon the indemnified party: (i) promptly\nnotifying the indemnifying party of any claim, suit, or proceeding for which\nindemnity is claimed; (ii) cooperating reasonably with the indemnifying party at\nthe latter's expense; and (iii) allowing the indemnifying party to control the\ndefense or settlement thereof. The indemnified party will have the right to\nparticipate in any defense of a claim and\/or to be represented by counsel of its\nown choosing at its own expense.\n\n                                 ARTICLE VII.\n                            LIMITATION OF LIABILITY\n\n         7.1.  WARRANTY. Drkoop.com will use commercially reasonable efforts to\nmaintain the drkoop.com Website available and display the Sponsor Advertising\nContent twenty four hours per day each day during the term of the Agreement.\nDrkoop.com shall install and maintain a commercially acceptable system of\ncollecting information about impressions and other data relating to the use of\nthe Sponsor Advertising Content. Drkoop.com warrants to Sponsor that it will\nmake reasonable effort to perform under this agreement in a competent manner. *\n* *\n\n         7.2.  DISCLAIMER. Each party will be solely responsible for the\ndevelopment, operation and maintenance of its Site and for all materials that\nappear on its Site. Such \n\n____________________\n* * *    Certain information on this page has been omitted and filed\n         separately with the Securities and Exchange Commission. Confidential\n         treatment has been requested with respect to the omitted portions.\n\n                                       8\n\n \nresponsibilities include, but are not limited to: (i) the technical operation of\nits Site and all related equipment; (ii) the accuracy and appropriateness of\nmaterials posted on its Site; (iii) for ensuring that materials posted on its\nSite do not violate any law, rule or regulation, including all FDA requirements,\nor infringe upon the rights of any third party (including, for example,\ncopyright, trademarks, privacy or other personal or proprietary rights); and\n(iv) for ensuring that materials posted on its Site are not libelous or\notherwise illegal. Each party disclaims all liability for all such matters with\nrespect to the other party's Site. Except for the foregoing, or as otherwise\nspecifically set forth in this Agreement, neither party makes any\nrepresentations, warranties or guarantees of any kind, either express or implied\n(including, without limitation, any warranties of merchantability or fitness for\na particular purpose), with respect to their respective Sites, or the\nfunctionality, performance or results of use thereof, or otherwise in connection\nwith this Agreement.\n\n         7.3.  EXCLUSION OF WARRANTY. EXCEPT AS EXPRESSLY SET FORTH IN THIS\nAGREEMENT, NEITHER PARTY MAKES ANY WARRANTY TO THE OTHER PARTY IN CONNECTION\nWITH THE SUBJECT MATTER OF THIS AGREEMENT AND EACH PARTY HEREBY DISCLAIMS ANY\nAND ALL WARRANTIES WITH REGARD TO ITS SITE AND SERVICES, EXPRESS OR IMPLIED,\nINCLUDING WITHOUT LIMITATION, ANY WARRANTY OF NONINFRINGEMENT AND THE IMPLIED\nWARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN\nPARTICULAR, AND NOT BY WAY OF LIMITATION, NEITHER PARTY WARRANTS THAT ITS SITE\nWILL OPERATE ERROR-FREE OR WITHOUT INTERRUPTION.\n\n         7.4.  DAMAGES. EXCEPT AS SET FORTH IN SECTION 6.3, IN NO EVENT SHALL\nEITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL\nOR PUNITIVE DAMAGES ARISING OUT OF THIS AGREEMENT OR ITS TERMINATION, WHETHER\nLIABILITY IS ASSERTED IN CONTRACT, TORT (INCLUDING NEGLIGENCE) STRICT LIABILITY\nOR OTHERWISE AND IRRESPECTIVE OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE\nPOSSIBILITY OF ANY SUCH LOSS OR DAMAGE. * * *\n\n                                 ARTICLE VIII.\n                             TERM AND TERMINATION\n\n         8.1.  TERM; TERMINATION.\n\n               8.1.1. The initial term (the \"Initial Term\"; and together with\nall extensions and renewals, the \"Term\") will begin on the date set forth above\n* * * (the \"Launch Date\") on which: (i) each of the Sponsor Areas of the\ndrkoop.com Website are operational in accordance with the terms of this\nAgreement (other than the e-commerce tile placements); and (ii) the links to the\n\n____________________\n* * *    Certain information on this page has been omitted and filed\n         separately with the Securities and Exchange Commission. Confidential\n         treatment has been requested with respect to the omitted portions.\n\n                                       9\n\n \nSponsor Website or Vitamin Buzz contained in the Sponsor logos or the Sponsor\nbanner advertisements are established in accordance with the terms of this\nAgreement, subject to earlier termination as set forth in this Agreement. If the\nLaunch Date has not occurred by August 31, 1999, Sponsor shall, in its sole\ndiscretion, be entitled to terminate this Agreement without any liability and\nreceive a full refund of all amounts paid by Sponsor to drkoop.com pursuant to\nthis Agreement prior to the date of such termination.\n\n               * * *\n\n         8.2.  TERMINATION FOR TOBACCO INDUSTRY AFFILIATION. Upon commencing any\nactivities relating to Tobacco Industry Affiliation (as defined in Section 6.1),\nSponsor shall promptly notify drkoop.com of its intent to undertake Tobacco\nIndustry Affiliation. Upon receipt of such notice or upon learning of any such\nTobacco Industry Affiliation from a third party, drkoop.com shall have the right\nto terminate this Agreement immediately on written notice to Sponsor without\nliability of any kind.\n\n         8.3.  TERMINATION FOR GARNISHMENT. * * * Additionally, in the event\nthat either party undertakes any action or fails to undertake any action, which\nthe other party reasonably believes tarnishes the high quality of its name or\ntrademarks, including, with respect to drkoop.com, the \"Dr. Koop\" name, the\nother party shall have the right to terminate this agreement upon ten (10) days'\nwritten notice to the other party, provided that such action or inaction is not\ncured to the reasonable satisfaction of the terminating party within such ten\nday period.\n\n         8.4.  TERMINATION FOR CAUSE. Either party may terminate this Agreement\nupon thirty (30) days' written notice of a breach by the other party, provided\nsuch breach is not cured within such thirty-day period.\n\n         8.5.  TERMINATION BY INSOLVENCY. Either party may terminate this\nAgreement by providing written notice to the other party if the other party\nceases to function as a going concern, becomes insolvent, makes an assignment\nfor the benefit of creditors, files a petition in bankruptcy, permits a petition\nin bankruptcy to be filed against it, or admits in writing its inability to pay\nits debts as they mature, or if a receiver is appointed for a substantial part\nof its assets.\n\n         8.6.  SURVIVAL. The following Sections shall survive termination of\nthis Agreement: Article 5 (Confidentiality), Article 6 (Representations,\nWarranties and Indemnification), Article 7 (Limitation of Liability), and\nArticle 9 (General).\n\n\n____________________\n* * *    Certain information on this page has been omitted and filed\n         separately with the Securities and Exchange Commission. Confidential\n         treatment has been requested with respect to the omitted portions.\n\n                                       10\n\n \n                                  ARTICLE IX.\n                                    GENERAL\n\n         9.1.  PUBLICITY. Except as may be required by applicable laws and\nregulations or a court of competent jurisdiction, or as required to meet credit\nand financing arrangements, or as required or appropriate in the reasonable\njudgment of either party to satisfy the disclosure requirements of an applicable\nsecurities law or regulation or any applicable accounting standard, neither\nparty shall make any public release respecting this Agreement and the terms\nhereof without the prior consent of the other party.\n\n         9.2.  ARBITRATION. Any and all disputes, controversies and claims\narising out of or relating to this Agreement or concerning the respective rights\nor obligations of the parties hereto shall be settled and determined by\narbitration in the defending parties home forum before one (1) arbitrator\npursuant to the Commercial Rules then in effect of the American Arbitration\nAssociation. Each party shall have no longer than three (3) days to present its\nposition. Judgment upon the award rendered may be entered in any court having\njurisdiction or application may be made to such court for a judicial acceptance\nof the award and an order of enforcement. The parties agree that the arbitrators\nshall have the power to award damages, injunctive relief and reasonable\nattorneys' fees and expenses to any party in such arbitration.\n\n         9.3.  ASSIGNMENT. Neither party may assign this Agreement, in whole or\nin part, without the other party's written consent, which consent will not be\nunreasonably withheld, except that: (a) a party's rights and obligation\nhereunder may be transferred to a successor of all or substantially all of the\nbusiness and assets of the party regardless of how the transaction or series of\nrelated transactions is structured, provided, that the successor party agrees to\nbe bound by all of the terms and conditions of this Agreement; and (b) Sponsor\nmay assign its rights and obligations under this Agreement to any entity (i)\nwhich operates the Sponsor Website and (ii) which agrees to bound by all of the\nterms and conditions of this Agreement.\n\n         9.4.  GOVERNING LAW. This Agreement shall be construed and enforced in\naccordance with the laws of the State of Delaware, but without giving effect to\nits laws or rules relating to conflicts of laws.\n\n         9.5.  NOTICE. All notices, statements and reports required or permitted\nby this Agreement shall be in writing and deemed to have been effectively given\nand received: (i) five (5) business days after the date of mailing if sent by\nregistered or certified U.S. mail, postage prepaid, with return receipt\nrequested; (ii) when transmitted if sent by facsimile, provided a confirmation\nof transmission is produced by the sending machine and a copy of such facsimile\nis promptly sent by another means specified in this section; or (iii) when\ndelivered if delivered personally or sent by express courier service. Notices\nshall be addressed as follows:\n\n                                       11\n\n \n         For drkoop.com:                          For Sponsor:\n\n         drkoop.com.                              Vitamin Shoppe Industries,\n                                                   Inc.\n         Personal Medical Records, Inc.           4700 Westside Avenue\n         8920 Business Park Drive                 North Bergen, New Jersey 07047\n         Austin, TX 78759                         Attn: Ms. Miriam Nesheiwat\n         Attn: Chief Financial Officer            Fax: 201-583-1834\n         Fax:   512-726-5130                      Email: mnesh@vitaminshoppe.com\n         Email: gsears@drkoop.com\n\n                                              With a copy to:\n                                                  H. Leigh Feldman\n                                                  Robinson Silverman Pearce \n                                                   Aronsohn &amp; Berman LLP\n                                                  1290 Avenue of the Americas\n                                                  32nd Floor\n                                                  New York, NY 10104\n                                                  Fax: 212-541-1492\n                                                  Email: feldman@rspab.com\n\nEither party may change its address for the purpose of this paragraph by notice\ngiven pursuant to this paragraph\n\n         9.6.  NO AGENCY. The parties are independent contractors and will have\nno power or authority to assume or create any obligation or responsibility on\nbehalf of each other. This Agreement will not be construed to create or imply\nany partnership, agency or joint venture.\n\n         9.7.  SEVERABILITY. In the event that any of the provisions of this\nAgreement are held to be unenforceable by a court or arbitrator, the remaining\nportions of the Agreement will remain in full force and effect.\n\n         9.8.  ENTIRE AGREEMENT. This Agreement is the complete and exclusive\nagreement between the parties with respect to the subject matter hereof,\nsuperseding any prior agreements and communications (both written and oral)\nregarding such subject matter. This Agreement may only be modified, or any\nrights under it waived, by a written document executed by both parties.\n\n         9.9.  COUNTERPARTS. This Agreement may be signed in counterparts which,\nwhen signed, shall constitute one document.\n\n                                       12\n\n \n         IN WITNESS WHEREOF, the parties have caused this Agreement to be duly\nexecuted and delivered as of the day and year first above written.\n\n                                            drkoop.com, inc.\n\n                                            By:______________________________\n                                               Name:\n                                               Title:\n\n                                           VITAMIN SHOPPE INDUSTRIES, INC.\n\n                                            By:______________________________\n                                               Name:\n                                               Title:\n\n                                       13\n\n \n                                SCHEDULE 1.2(I)\n                             SCREEN SHOT MOCK-UPS\n\n[ATTACHED]\n\n \n                                   EXHIBIT A\n                              DIRECT COMPETITORS\n\n\n* * *\n\n\n____________________\n* * *    Certain information on this page has been omitted and filed\n         separately with the Securities and Exchange Commission. Confidential\n         treatment has been requested with respect to the omitted portions.\n\n \n                                   EXHIBIT B\n                         FORM OF HEALTHLINKS AGREEMENT\n\n[ATTACHED]\n\n \n                                   EXHIBIT C\n                          ADVERTISING SPECIFICATIONS\n\nFile Formats\n\nNaming Convention: (lowercase only, 8.3)\n\nAlternate Text: Use ALT tag; ten words or less\n\nImage Dimensions :\n\nSponsor Banner: 468 pixels by 60 pixels, 234 pixels by 60 pixels, 120 pixels by\n60 pixels\n\nImage File Format: [GIF\/JPEG]\n\nImage File Size: 12 k maximum file size\n\nFile Names:Use Sponsor name.: [Sponsor].gif]\n\nDelivery of GIFs\n\nEmail - mbaehr@drkoop.com.com, cc: gsears@drkoop.com.com\n\nWe accept [,CompactPro, zip, gzip, and UNIX tar or compress] format tiles. All\nformats must be mailed in [ASCII encoding(uuencode, mmencode)].\n\n \n                                   EXHIBIT D\n                           DRKOOP.COM CORPORATE LOGO\n\n[LOGO ATTACHED]\n\n\"The Vitamin Shoppe is the proud exclusive vitamin sponsor of drkoop.com.\"\n\n\"The Vitamin Shoppe is a proud sponsor of drkoop.com, the Trusted Health\nNetwork, led by Dr. C. Everett Koop.\"\n\nThe Vitamin Shoppe is a proud sponsor of drkoop.com, the Trusted Health Network,\nled by Dr. C. Everett Koop.\"\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7359],"corporate_contracts_industries":[9438],"corporate_contracts_types":[9613,9620],"class_list":["post-42830","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-drkoopcom-inc","corporate_contracts_industries-health__misc","corporate_contracts_types-operations","corporate_contracts_types-operations__services"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42830","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42830"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42830"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42830"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42830"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}