{"id":42834,"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-netgrocer-inc-and-ivillage-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"sponsorship-agreement-netgrocer-inc-and-ivillage-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/sponsorship-agreement-netgrocer-inc-and-ivillage-inc.html","title":{"rendered":"Sponsorship Agreement &#8211; NetGrocer Inc. and iVillage Inc."},"content":{"rendered":"<pre>\nCONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE\nCONFIDENTIAL PORTIONS HAVE BEEN REDACTED AND ARE DENOTED BY [*]. THE \nCONFIDENTIAL PORTIONS HAVE BEEN SEPARATELY FILED WITH THE SECURITIES AND\nEXCHANGE COMMISSION.\n\n                             SPONSORSHIP AGREEMENT\n\n         This Sponsorship Agreement (\"Agreement\") is entered into as of May 31,\n1998 (the \"Effective Date\") by and between Net Grocer, Inc. a Delaware\ncorporation (\"Net Grocer\") with offices at 333 Seventh Ave., 11th Floor, New\nYork, NY 10001 and iVillage, Inc., a Delaware corporation, (\"iVillage\") with\noffices at 170 Fifth Avenue, New York, New York 10010.\n\n         WHEREAS, iVillage operates a site on the World Wide Web and America\nOnline which contains channels including Parent Soup, ParentsPlace.com, Better\nHealth and Armchair Millionaire as well as career, fitness &amp; beauty, food,\nrelationships and work from home channels (all such sites and channels being\nthe \"Network\").\n\n         WHEREAS, Net Grocer operates an online supermarket\/grocery service\nwhereby customers are able to shop for and purchase one or more goods as may be\nfound in typical high-volume supermarkets which are then shipped to customers\nupon receipt of an order (\"Supermarket Service\") and Net Grocer seeks to\nprovide this Supermarket Service to Users of the Network.\n\n         NOW, THEREFORE, for good and valuable consideration, the receipt and\nsufficiency of which are hereby acknowledged, iVillage and Net Grocer hereby\nagree as follows:\n\n1. Definitions.\n\n         A. \"Net Grocer Goods\" means the products offered for sale by Net\nGrocer including all products that could be found in a large format supermarket\nor grocery store.\n\n         B. \"Jump Page\" means the co-branded page or pages hosted by iVillage,\nwhich shall reside below the navigational bar (said navigational bar may\ncontain advertisements sold by iVillage), and which shall link to the iVillage\nSupermarket Site. The Jump Page shall (i) be designed by both parties, although\niVillage shall have final approval over such design, (ii) be in the form of a\nfull horizontal page with a minimum of no scroll and (iii) contain at a\nminimum, a prominently featured Link to the iVillage Supermarket Site in the\nform of a clearly labeled button, accompanied with mutually determined\ndescriptive text. The Jump Page shall be exclusively devoted to iVillage and\nNet Grocer.\n\n         C. \"iVillage Supermarket Site\" means the customized, co-branded\nversion of the Net Grocer Site located on Net Grocer's servers, which Net\nGrocer will use commercially reasonable good faith efforts to provide, as soon\nas possible, in the form of a framed site. As soon as possible, prominently\nfeatured \"back to\" links shall be placed throughout the iVillage Supermarket\nSite. Although iVillage has final approval and sole discretion with respect to\nthe name chosen for the iVillage Supermarket Site, the parties agree that the\nNet Grocer name will be acknowledged in the iVillage Supermarket Site name.\n\n         D.  \"User\" means an individual who accesses the Network.\n\n         E. \"New Customer\" means a User who has never previously ordered from\nNet Grocer and who enters the iVillage Supermarket Site through the Jump Page\nand places and pays for an order for Net Grocer's Goods at that time. At such\ntime as Net Grocer has the technical capability to track the following, New\nCustomer shall also mean a User who returns to the iVillage \n\n\n\n                                       1\n\n\n\nSupermarket Site to purchase Net Grocer Goods after placing an order, but not\ncompleting the transaction.\n\n         F. \"Repeat Customer\" means a User who places and pays for an order for\nNet Grocer's Goods and who previously qualified as a New Customer.\n\n         G. \"Net Grocer Services\" means the Supermarket Services offered by Net\nGrocer via the Net Grocer Site.\n\n         H. \"Net Grocer Site\" means the Web site maintained and operated by Net\nGrocer, currently located at the URL www.netgrocer.com.\n\n         I. \"Net Grocer's Competitors\" means any online or offline supermarket,\ngrocery store, or similar store which generally offers selections of consumer\npackaged grocery goods and\/or fresh groceries of a similar nature to those\nselections currently offered by Net Grocer (but specifically without requiring\na comprehensive selection of those selections offered by Net Grocer and without\nprecluding from the definition of Net Grocer Competitors, any such stores which\noffer a more comprehensive selection of such goods and groceries), including\nwithout limitation those companies set forth on Exhibit B hereto. Net Grocer\nmay request in writing, and iVillage shall not unreasonably withhold the\naddition of other competitors to Exhibit B, based on the above criteria for\nsuch competitor. Notwithstanding the foregoing, based on their respective\ncurrent products sold, the following shall not be deemed Net Grocer's\nCompetitors: Godiva, Omaha Steaks and Harry &amp; Davids.\n\n         J. \"Marks\" means trade names, trademarks, service marks, products and\nlogos.\n\n         K. \"Transaction Revenue\" means revenue derived in connection with New\nCustomer Fees, Repeat Customer Fees and\/or Click-Through Fees, as defined in\nSection 5 herein.\n\n         L. \"Food Channel\" means the area of the Network containing primarily\nfood-related content.\n\n         M. \"Shopping Channel\" means the area of the Network containing links\nto retail and shopping outlets.\n\n         N. \"Impressions\" means any page on the Network, excluding the Jump\nPage, where an advertisement banner on the iVillage Supermarket Site appears as\na link above the fold and any feature (such as a tool) and\/or editorial mention\n(which may appear above or below the fold).\n\n         O. \"Link\" means a descriptive or graphical link or icon which, in\niVillage's sole discretion, directs the User (i) directly to the iVillage\nSupermarket Site or (ii) to the Jump Page which shall direct Users exclusively\nto the iVillage Supermarket Site.\n\n2. Term and Termination.\n\n         A. Term. The term of this Agreement shall commence on June 29, 1998\nand shall terminate on the last day of Year Two, as defined herein, unless\nterminated earlier as provided herein. The first year of the term of this\nAgreement (\"Year One\") shall commence on June 29, 1998 and the second year of\nthe term of this Agreement (\"Year Two\") shall commence on June 29, 1999.\n\n\n\n                                       2\n\n\n\n         B. Termination. In the event of a material breach by either party of\nany term of this Agreement, the non-breaching party may terminate this\nAgreement by written notice to the breaching party if the breaching party fails\nto cure such material breach within thirty (30) days of receipt of written\nnotice thereof. In addition to any other grounds for termination as set forth\nin this Agreement, either party may terminate this Agreement effective upon\nwritten notice stating its intention to terminate in the event either party (i)\nceases to function as a going concern or to conduct operations in the normal\ncourse of business, or (ii) has a petition filed by or against it under any\nstate or federal bankruptcy or insolvency law which petition has not been\ndismissed or set aside within sixty (60) days of its filing.\n\n3.Promotion.\n  A.  Placement and Integration.\n\n(i)     iVillage shall create and include a Link on the Food Channel. The size\n        and placement of the Link shall be determined by iVillage in its sole\n        discretion, but in any event shall be similar in prominence to current\n        links appearing on the Food\/Shopping pages (as depicted in the attached\n        exhibit), or in the event the page is redesigned by iVillage, in such\n        manner as to be consistent in look and feel with any other prominent\n        link appearing on the page and at a minimum so as to maintain\n        legibility of the Net Grocer logo and tag line. During the term of this\n        Agreement, iVillage shall feature the Net Grocer Services in a\n        promotion spot, above the fold, on the Food Channel.\n\n(ii)    iVillage shall create and include a Link on the Shopping Channel, but\n        in any event shall be similar in prominence to current links appearing\n        on the Food\/Shopping pages (as depicted in the attached exhibit), or in\n        the event the page is redesigned by iVillage, in such manner as to be\n        consistent in look and feel with any other prominent link appearing on\n        the page and at a minimum so as to maintain legibility of the Net\n        Grocer logo and tag line. When Net Grocer is featured in a featured\n        promotional area of the Shopping Channel, that Link shall also be\n        included in the calculation of Impressions.\n\n(iii)   iVillage shall also integrate the iVillage Supermarket Site into other\n        aspects of the iVillage Web Site as appropriate and as determined in\n        iVillage's sole discretion, such as emails, editorial mentions and\n        newsletters.\n\n(iv)    The parties will work together to design and develop content for the\n        iVillage Supermarket Site.\n\n(v)     iVillage will code all unique Links and banner advertisements to Net\n        Grocer using a code reasonably specified by Net Grocer. Within the\n        constraints of iVillage's advertisement serving software, iVillage\n        shall use its best efforts to provide to Net Grocer on a weekly basis\n        and in electronic form, a report showing the number of Impressions and\n        click-throughs for banner advertisements and Links.\n\nB. Impressions.\n\n(i)     During Year One, iVillage will provide (the \"Impression Guarantee\") (a)\n        [*] Impressions throughout relevant areas of the Network (excluding the\n        Shopping Channel), designed to maximize click-\n\n                                       3\n\n\n\n\n        throughs, which shall include Impressions on the Food Channel,\n        advertisement banners, and mentions in newsletters, to be apportioned\n        throughout Year One as follows:\n\n---------------------------- --------------------------------------------------\n          Quarter                        Total # of Impressions per Quarter\n---------------------------- --------------------------------------------------\n             1                                         [*]\n---------------------------- --------------------------------------------------\n             2                                         [*]\n---------------------------- --------------------------------------------------\n             3                                         [*]\n---------------------------- --------------------------------------------------\n             4                                         [*]\n---------------------------- --------------------------------------------------\n\n        and (b) five million (5,000,000) Impressions on the Shopping Channel to\n        be apportioned throughout Year One as follows:\n\n---------------------------- -------------------------------------------------\n          Quarter                        Total # of Impressions per Quarter\n---------------------------- -------------------------------------------------\n             1                                         [*]\n---------------------------- -------------------------------------------------\n             2                                         [*]\n---------------------------- -------------------------------------------------\n             3                                         [*] \n---------------------------- -------------------------------------------------\n             4                                         [*]\n---------------------------- -------------------------------------------------\n\n(ii)    If iVillage is unable to deliver the total number of Impressions for a\n        given quarter as set froth in this Section 3.B(i), iVillage shall use\n        commercially reasonable efforts to correct such shortfall in the next\n        subsequent quarter. If, at the end of Year One, iVillage has not\n        delivered the Impression Guarantee, Net Grocer may terminate this\n        Agreement with fifteen (15) days written notice to iVillage stating its\n        intention to do so. In accordance with such termination, iVillage's\n        only remaining obligations shall be that of fulfilling the undelivered\n        Impressions through the placement of Net Grocer advertisement banners\n        and newsletter mentions throughout the Network as determined by\n        iVillage, and until iVillage has fulfilled these Impressions, iVillage\n        shall continue to maintain the exclusivity obligation as set forth in\n        Section 6. If iVillage has not delivered the Impression Guarantee by\n        the end of Year One, and Net Grocer does not seek to terminate the\n        Agreement, iVillage shall fulfill the undelivered Impressions through\n        the placement of Impressions as set forth above in Section 3.B.(i)(a)\n        and 3.B.(i)(b), and iVillage and Net Grocer will continue to be held to\n        all other obligations as set forth in this Agreement.\n\n(iii)   During Year Two, iVillage will provide (the \"Impression Guarantee\") (a)\n        [*] Impressions in relevant areas of the Network (excluding the\n        Shopping Channel), designed to maximize click-throughs, which shall\n        include Impressions on the Food Channel, advertisement banners and\n        mentions in newsletters to be apportioned throughout Year Two as\n        follows:\n\n---------------------------- --------------------------------------------------\n          Quarter                        Total # of Impressions per Quarter\n---------------------------- --------------------------------------------------\n             1                                          [*]\n---------------------------- --------------------------------------------------\n             2                                          [*]   \n---------------------------- --------------------------------------------------\n             3                                          [*]   \n---------------------------- --------------------------------------------------\n             4                                          [*]   \n---------------------------- --------------------------------------------------\n\n\n                                       4\n\n\n\n        and (b) [*] Impressions on the Shopping Channel to be apportioned\n        throughout Year Two as follows:\n\n\n---------------------------- ------------------------------------------------\n          Quarter                        Total # of Impressions per Quarter\n---------------------------- ------------------------------------------------\n             1                                          [*]  \n---------------------------- ------------------------------------------------\n             2                                          [*]  \n---------------------------- ------------------------------------------------\n             3                                          [*]\n---------------------------- ------------------------------------------------\n             4                                          [*]   \n---------------------------- ------------------------------------------------\n\n        In the event that iVillage is unable to deliver the total\n        abovementioned Impressions by the end of Year Two, the term of the\n        Agreement shall extend until iVillage \"makes good\" the amount through\n        placement of Impresssions throughout the Network as determined by\n        iVillage. Until iVillage has fulfilled these Impressions, iVillage\n        shall continue to maintain the exclusivity obligation as set forth in\n        Section 6\n\n4. Net Grocer's Obligations.\n         A. Jump Page. iVillage and Net Grocer shall cooperate in the creation\nof a co-branded Jump Page. iVillage shall be responsible for hosting and\nmaintaining the Jump Page on its servers. If, during the term of the Agreement,\nthe Jump Page is not effective with respect to customer acquisition, Net Grocer\nagrees to promptly consult with iVillage for the purpose of increasing the\nproductivity of the Jump Page.\n\n         B. Establishing the Service. Net Grocer shall design and develop a\ncustomized and co-branded version of the Net Grocer Web site for iVillage in a\nmanner whereby Users can easily determine if they are eligible to receive the\nNet Grocer Services.\n\n         C. Customer Service. Net Grocer shall, at its sole expense, promptly\nforward to iVillage any inquiries it receives from Users regarding the Network.\niVillage shall, at its sole expense, promptly forward to Net Grocer any\ninquiries it receives from Users regarding the Net Grocer Services.\n\n         D. Fulfillment. Net Grocer shall be solely responsible for (i)\nfulfilling all orders for the Net Grocer Goods and (ii) calculating, collecting\nand paying all appropriate taxes associated with payment processing. The Net\nGrocer Goods will be supported by the same warranty and return policy for such\ngoods as offered to other Net Grocer customers.\n\n         E. Taxes. Net Grocer shall be exclusively liable and shall bear total\nresponsibility for payment of any and all sales, property or other taxes due in\nconnection with the sale of Net Grocer Goods, other than income taxes or\nsimilar taxes required to be paid by iVillage as a result of Transaction\nRevenue paid hereunder.\n\n         F. New Customer Information. Net Grocer shall develop, maintain and\nown a database of New Customers. During the term of this Agreement, upon\niVillage's request, Net Grocer shall provide iVillage with access to\ndemographics and transaction information contained in the New Customer\nDatabase, using a mutually agreeable customer identifier, in machine readable\nform, free of charge. In no event will Net Grocer be obligated to disclose\ncontact information \n\n\n\n                                       5\n\n\nregarding the customer, such as name and address. During the term of this\nAgreement and for six (6) months thereafter, iVillage may use the New Customer\nDatabase only for targeted advertising purposes on the Network. The parties\nagree that iVillage shall pay Net Grocer [*] of the advertising revenue\ndirectly derived from such advertising, less any applicable agency commission,\nnot in excess of prevailing market rates. iVillage shall pay Net Grocer any\nsuch advertising revenue within thirty (30) days following the end of each\ncalendar quarter in which such advertising revenue is collected, accompanied by\na relevant report setting forth the gross advertising revenue and the amount\ndue Net Grocer.\n\n5. Compensation.\n         A. Production Fee. In connection with Year One, Net Grocer agrees to\npay iVillage, within fifteen (15) days of signing this Agreement, an upfront,\nnonrefundable, non-recoupable production and setup fee in the amount of [*]. In\nconnection with Year Two, Net Grocer agrees to pay iVillage a nonrefundable,\nnon-recoupable production fee of [*], payable within fifteen (15) days of the \nfirst day of Year Two.\n\n         B. Transaction Revenue. Within thirty (30) days following the end of\neach calendar quarter during the term of the Agreement, Net Grocer shall pay\niVillage the following : (i) For every New Customer, Net Grocer shall pay\niVillage a fee of [*] (\"New Customer Fee\"). (ii) In addition, Net Grocer shall\npay iVillage a fee of [*] per order placed by a Repeat Customer (\"Repeat\nCustomer Fee\"). (iii) Every time a unique User presence is or, but for a\ntechnological limitation, should be recognized by Net Grocer's servers and\naccesses the iVillage Supermarket Site from anywhere on the Network, Net Grocer\nshall pay iVillage a fee of [*](\"Click Through Fee\"). Any monies owed to\niVillage in connection with a technological limitation affecting recognition of\nunique User presence shall not be deemed a breach of this Agreement unless Net\nGrocer fails to pay to iVillage such amount in Click Through Fees within thirty\n(30) days of Net Grocer's knowledge of such amount owed to iVillage.\n\n         C. Conversion Rate. At the end of each six (6) month period during the\nterm of the Agreement, Net Grocer shall determine the Conversion Rate, which\nshall be a fraction, the numerator of which shall equal the number of New\nCustomers for the previous six (6) month period and the denominator of which\nshall equal the number of Users. If the Conversion Rate is equal to or greater\nthan [*], then Net Grocer shall pay to iVillage, an additional [*] per each New\nCustomer for that preceding six (6) month period.\n\n         D.  Revenue Guarantee.\n\n        (i)     In consideration for Net Grocer's exclusive status and for the\n                Impression Guarantee, both set forth in this Agreement, Net\n                Grocer agrees to pay the minimum Transaction Revenue fees\n                (\"Revenue Guarantee\" and collectively \"Revenue Guarantees\") as\n                follows: (a) in connection with Year One, Net Grocer agrees to\n                pay iVillage a minimum of [*] (\"Year One Guarantee\"), and; (b)\n                in connection with Year Two, Net Grocer agrees to pay iVillage\n                a minimum fee of [*](\"Year Two Guarantee\"). Net Grocer shall\n                pay iVillage within thirty (30) days following the end of each\n                calendar quarter during the term of the\n\n\n\n\n                                       6\n\n\n                Agreement, the payments set forth on Exhibit A (the \"Quarterly\n                Payments\"), subject to provisions of this Section 3.D.\n\n        (ii)    In consideration for iVillage's delivery of the Impression\n                Guarantee for a given year, Net Grocer shall pay to iVillage,\n                one hundred percent (100%) of that year's Revenue Guarantee.\n                iVillage shall receive Transaction Revenue when the cumulative\n                amount of Transaction Revenue exceeds the cumulative amount of\n                Quarterly Payments. At the end of each quarter, the cumulative\n                Transaction Revenue shall be calculated and if that amount\n                equals or exceeds the cumulative Quarterly Payments, such\n                Transaction Revenue shall be paid to iVillage.\n\n        (iii)   If iVillage does not deliver the Impression Guarantee in a\n                given year, Net Grocer shall pay to iVillage a fraction of that\n                year's Revenue Guarantee which shall be an amount equal to the\n                percentage of Impressions delivered by iVillage. In addition,\n                if iVillage does not deliver the Impression Guarantee during a\n                given quarter, Net Grocer shall suspend that amount of the\n                Quarterly Payment which is in excess of the Transaction Revenue\n                earned in that quarter (\"Suspended Amount\"), if any. Net Grocer\n                shall pay to iVillage the Suspended Amount upon iVillage's\n                delivery of the Impression Guarantee with respect to the under\n                delivered quarter.\n\n        (iv)    Notwithstanding anything to the contrary in this Section 3.D.,\n                in no event shall Net Grocer be required to pay any Quarterly\n                Payment (or, if applicable, portion thereof) or Transaction\n                Revenue to the extent that such payment, together with all\n                other amounts paid by Net Grocer to iVillage hereunder\n                excluding any production fees (i.e., the cumulative Quarterly\n                Payments paid plus the cumulative amount of Transaction Revenue\n                paid), exceeds the cumulative Quarterly Payments (including the\n                Quarterly Payment for the quarter as to which the computation\n                is being calculated), except and then only to the extent that\n                the cumulative amount of Transaction Revenue (including the\n                Transaction Revenue for the quarter as to which the computation\n                is being calculated) exceeds the cumulative Quarterly Payments\n                (including the Quarterly Payment for the quarter as to which\n                the computation is being calculated); provided however that\n                upon the termination or expiration of this Agreement, to the\n                extent that the total amounts paid by Net Grocer to iVillage\n                consisting of Transaction Revenue and Quarterly Payments exceed\n                the Transaction Revenue required to be paid hereunder and such\n                amount is in excess of the Year One Guarantee, if the Agreement\n                is terminated at the end of Year One, or the Year Two\n                Guarantee, if the Agreement expires at the end of Year Two,\n                iVillage shall rebate to Net Grocer such overage amount, if\n                any, within sixty (60) days of the termination or expiration,\n                as the case may be, of the Agreement.\n\n         E. Reports. Payments remitted to iVillage shall be accompanied by a\nstatement in such reasonable detail as iVillage shall reasonably request\nshowing the total number of New Customer orders, Repeat Customer orders, number\nof Users who click through and the amount due iVillage.\n\n\n\n\n                                       7\n\n\n\n6. Exclusivity. During the term of this Agreement, iVillage will not enter into\nany agreement to display and shall not display content and\/or other\nbanner\/promotional advertising created by iVillage promoting any Net Grocer\nCompetitor, content and\/or banner\/promotional advertising created by or\nreceived on behalf of any Net Grocer Competitor, or otherwise make available\nonline supermarket sales offered by any Net Grocer Competitor, in all instances\nanywhere on the Network.\n\n7. Ownership. As between iVillage and Net Grocer, iVillage will retain full and\nexclusive right, title and interest in and to the Jump Page and the\nintellectual property rights therein except for NetGrocer Marks and other\ncontent created by Net Grocer and provided to iVillage for use on the Jump\nPage.\n\n8. Proprietary Rights. All intellectual property rights or proprietary property\nand information, supplied or developed by either party shall be and remain the\nsole and exclusive property of the party who supplied or developed same. Upon\ntermination of this Agreement and upon written request, the party in receipt of\nthe requesting party's intellectual or proprietary property and\/or information\npursuant to this Agreement shall return such information to the requesting\nparty.\n\n9. Publicity. iVillage and Net Grocer agree to collaborate on a joint press\nrelease regarding the exclusive nature of Net Grocer's services on the Network\nand the overall subject matter of this Agreement with quotes from iVillage and\nNet Grocer sources (\"Press Release\"). The distribution list shall be approved\nby both parties no less than five (5) business days prior to the release date.\nThe Press Release must be approved by the iVillage public relations department\nand Net Grocer, each of which also must be made aware of any pre-briefings with\noutside parties at least five (5) days in advance of any pre-briefing. In\naddition, the iVillage public relations department and Net Grocer must be\ninformed, no less than five (5) days before the release date, of any third\nparty who expresses interest in the Press Release.\n\n10. Licenses. Net Grocer grants to iVillage, during the term of this Agreement,\na royalty-free, non-exclusive, worldwide license to use, copy, reproduce,\nperform and display Net Grocer's Marks in connection with this Agreement.\niVillage grants to Net Grocer during the term of this Agreement, a\nnon-exclusive, worldwide license to use, copy, reproduce, perform and display\niVillage's Marks in accordance with the Agreement. No right, title, license, or\ninterest in any Marks owned by a party or any of its affiliates is intended to\nbe given to or acquired by the other party, by the execution of or the\nperformance of this Agreement. Neither party shall use the other party's Marks\nfor any purpose or activity except as expressly authorized or contemplated\nherein.\n\n11. Use of Marks. The Marks may be used only pursuant to the terms and\nconditions of this Agreement as a means of identifying iVillage or Net Grocer,\nrespectively, as the source and host of each party's respective site. Neither\nparty will modify, alter or obfuscate the other party's Marks or use the other\nparty's Marks in a manner that disparages the other party. The Marks may be\nused only in a form agreed to by the Mark-owning party. The presentation of the\nMarks shall at all times be such that the ownership of any particular Mark is\nclear and all Marks shall bear the (R) or TM symbols where applicable. Each\nparty shall have the unilateral right to establish, monitor and enforce such\nquality standards. Each party hereby renounces ownership of and assigns to the\nother party any goodwill which accrues as a result of that party's use of the\nother party's (or its licensors') Marks.\n\n\n\n                                       8\n\n\n\n12. Proprietary Rights. Title to and ownership of all Marks, including without\nlimitation, intellectual property rights applicable thereto, are and shall\nremain the exclusive property of their current owner. Neither party shall take\nany action to jeopardize, limit or interfere in any manner with the aforesaid\nrights.\n\n13. Audit.\n         A. iVillage shall have the right to examine, or to have examined by an\nauthorized agent, Net Grocer's books and records to verify the accuracy of\npayments made to iVillage pursuant to this Agreement. iVillage is entitled to\nconduct such an audit only during normal business hours and no more frequently\nthan two (2) times per calendar year. iVillage agrees to provide Net Grocer\nwith at least five (5) business days advance written notice of any audit. The\naudit will be limited to revenue generated pursuant to this Agreement and the\ncalculation of payments due to iVillage under this Agreement. If the audit\nreveals that Net Grocer has paid iVillage less than the sum to which iVillage\nis entitled, Net Grocer agrees to pay iVillage the additional sums due, subject\nto Net Grocer's right to dispute the audit. If such sums exceed five percent\n(5%) of the total monies paid to iVillage under the Agreement, Net Grocer will\npay for all costs reasonably incurred by iVillage in connection with the audit.\n\n         B. Net Grocer shall have the right to examine, or to have examined by\nan authorized agent, iVillage's books and records to verify the accuracy of\nadvertisement payments made to Net Grocer pursuant to Section 4.F. of this\nAgreement. Net Grocer is entitled to conduct such an audit only during normal\nbusiness hours and no more frequently than two (2) times per calendar year. Net\nGrocer agrees to provide iVillage with at least five (5) business days advance\nwritten notice of any audit. The audit will be limited to advertisement revenue\ngenerated pursuant to Section 4.F. of this Agreement and the calculation of\npayments due to Net Grocer under this Agreement. If the audit reveals that\niVillage has paid Net Grocer less than the sum to which Net Grocer is entitled,\niVillage agrees to pay Net Grocer the additional sums due, subject to\niVillage's right to dispute the audit. If such sums exceed five percent (5%) of\nthe total monies paid to Net Grocer under the Agreement, iVillage will pay for\nall costs reasonably incurred by Net Grocer in connection with the audit.\n\n14. Confidentiality. Except as expressly set forth herein, iVillage and Net\nGrocer shall maintain in confidence the terms of this Agreement. It is expected\nthat, pursuant to discussions to date and to this Agreement, the parties may\ndisclose to one another certain information (\"Confidential Information\"), as\ndefined herein, which is considered by the disclosing party to be proprietary\nor confidential information. Confidential Information is defined as any\ninformation, communication or data, in any form, including, but not limited to\noral, written, graphic or electromagnetic forms, models or samples, which the\ndisclosing party desires to protect against unrestricted disclosure or use,\nincluding without limitation, business information, financial data and\nmarketing data. All Confidential Information shall remain the sole property of\nthe disclosing party and its confidentiality shall be maintained and protected\nby the receiving party with the same degree of care as the receiving party uses\nfor its own confidential and proprietary information and the receiving party\nshall not disclose such Confidential Information to any third party. The\nrestrictions of the use or disclosure of any Confidential Information shall not\napply to any Confidential Information: (i) after it has become generally\navailable to the public without breach of this Agreement by the receiving\nparty; (ii) is rightfully in the receiving party's possession prior to\ndisclosure to it by the disclosing party; (iii) is independently developed by\nthe receiving party; (iv) is rightfully received by the receiving party from a\nthird party without a duty of confidentiality; or (v) is disclosed under\noperation of law.\n\n\n\n                                       9\n\n\n\n15. Non-Disclosure. Except as provided for in this Agreement, each Party to\nthis Agreement shall: (i) reproduce the other party's Confidential Information\nonly for purposes of this Agreement and only to the extent necessary for such\npurpose; (ii) hold in confidence, and not disclose or reveal to any person or\nentity, any Confidential Information disclosed under this Agreement without the\nclear and express prior written consent of a duly authorized representative of\nthe disclosing party; (iii) safeguard the confidentiality of the Confidential\nInformation by using at least the same physical and other security measures as\nthat party uses to protect its own Confidential Information; and (iv) not use\nor disclose any of the Confidential Information for any purpose at any time,\nother than for the limited purpose of performance under this Agreement.\n\n16. Confidentiality of Agreement. Unless required by law (including the\nSecurities and Exchange Commission or other regulatory, registration or\nreporting requirements), and except to assert their rights hereunder or for\ndisclosures to their own employees on a \"need to know\" basis, the parties agree\nnot to disclose the terms of this Agreement or matters relating thereto without\nthe prior consent of the other party.\n\n17. Representations and Warranties. Each party hereby represents and warrants\nthat: (a) it is a corporation duly organized and validly existing and in good\nstanding under the laws of the state of its incorporation, (b) it has full\npower and authority to enter into this Agreement and to perform its obligations\nhereunder; (c) it has obtained all permits, licenses, and other governmental\nauthorizations and approvals required for its performance under this Agreement;\nand (d) the services to be rendered by each party under this Agreement,\nexcluding in the case of Net Grocer, the sale of Net Grocer Products , and each\nparty's Marks neither infringe nor violate any patent, copyright, trade secret,\ntrademark, or other proprietary right of any third party. Net Grocer will\nremain solely responsible for the operation of the Net Grocer Site and iVillage\nwill remain solely responsible for the operation of the Network and the Jump\nPage. Each party (y) acknowledges that the Network, the Jump Page and the Net\nGrocer Site may be subject to temporary shutdowns due to causes beyond the\noperating party's reasonable control and (z) subject to the specific terms of\nthis Agreement, retains sole right and control over the programming, content\nand conduct of transactions over its respective site or service. EACH PARTY\nSPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY REGARDING THE AMOUNT OF\nSALES THAT NET GROCER MAY GENERATE DURING THE TERM AND ANY ECONOMIC OR OTHER\nBENEFIT THAT EITHER PARTY MAY OBTAIN THROUGH ITS PARTICIPATION IN THIS\nAGREEMENT, EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY\nWARRANTY WITH REGARD TO ITS GOODS OR SERVICES.\n\n18. LIMITATION OF LIABILITY. NEITHER PARTY SHALL HAVE ANY LIABILITY HEREUNDER\nFOR ANY INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT\nLIMITATION, LOSS OF PROFIT OR BUSINESS OPPORTUNITIES, WHETHER OR NOT THE PARTY\nWAS ADVISED OF THE POSSIBILITY OF SUCH. THE FOREGOING LIMITATION OF LIABILITY\nSHALL NOT APPLY TO A MATERIAL BREACH BY IVILLAGE WITH RESPECT TO SECTION 6\nHEREIN.\n\n         NEITHER PARTY MAKES, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS ANY\nREPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE PRODUCTS AND\nSERVICES CONTEMPLATED BY THIS \n\n\n\n                                      10\n\n\nAGREEMENT, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A\nPARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR\nCOURSE OF PERFORMANCE.\n\n19. Indemnification. Both parties agree to indemnify, defend and hold harmless\nthe other party and its parent, subsidiaries, affiliates, directors, employees,\nsuccessors and assigns from any and all losses, liabilities, damages, actions,\nclaims, expenses and costs (including reasonable attorneys' fees) which result\nor arise from the breach of this Agreement by the indemnifying party. Net\nGrocer further agrees to indemnify, defend and hold harmless iVillage and its\nparent, subsidiaries, affiliates, directors, employees, successors and assigns\nfrom any failure by Net Grocer to pay taxes as required in Section 4.C.\niVillage specifically disclaims any liability to Net Grocer or any third party\nfor any losses, liabilities, damages, actions, claims, expenses and costs\n(including reasonable attorneys fees) which result or arise from fulfillment of\nthe Net Grocer Goods. Net Grocer shall indemnify, defend and hold harmless\niVillage, its parent, subsidiaries, affiliates, directors, employees,\nsuccessors and assigns from any and all losses, liabilities, damages, actions,\nclaims, expenses and costs (including reasonable attorneys' fees) which result\nor arise from the quality of the Net Grocer Goods, but only to the extent that\nNet Grocer is indemnified by such relevant third party vendor or supplier which\nis connected with such indemnifiable matter.\n\n20. General Provisions\n         A. Relationship of the Parties. Nothing contained herein shall imply\nany partnership, joint venture or agency relationship between the parties and\nneither party shall have the power to obligate or bind the other in any manner\nwhatsoever, except to the extent herein provided.\n\n         B. Severability. If any provision of this Agreement shall be declared\nby any court of competent jurisdiction to be illegal, void or unenforceable,\nall other provisions of this Agreement shall not be affected and shall remain\nin full force and effect.\n\n         C. Counterparts. This Agreement may be executed in any number of\ncounterparts, each of which shall be deemed to be an original and all of which\ntogether shall be deemed to be one and the same instrument.\n\n         D. Notices. All notices, requests, demands, payments and other\ncommunications which are required or may be given under this Agreement shall be\nin writing and shall be deemed to have been duly given if delivered personally,\ntelecopied or sent by nationally recognized overnight carrier, or mailed by\ncertified mail, postage prepaid, return receipt requested, as follows:\n         If to Net Grocer:\n                              Net Grocer, Inc.\n                              333 Seventh Avenue, 11th Floor\n                              New York, NY 10001\n                              Attn:  President\n                              Tel:  (212) 244-0031\n                              Fax:  (212) 244-9890\n\n         If to iVillage:      iVillage, Inc.\n                              170 Fifth Avenue\n                              New York, New York 10010\n\n\n\n\n                                11\n\n\n                              Attention: Vice President Finance\/Legal Affairs\n                              Tel: (212) 206-3106\n                              Fax:  (212) 604-9133\n\n         E. Force Majeure. Except as otherwise expressly provided in this\nAgreement, neither party shall be liable for any breach of this Agreement for\nany delay or failure of performance resulting from any cause beyond such\nparty's reasonable control, including but not limited to the weather, strikes\nor labor disputes, war, terrorist acts, riots or civil disturbances, government\nregulations, acts of civil or military authorities, or acts of God\n(individually, a \"Force Majeure\") provided the party affected takes all\nreasonably necessary steps to resume full performance; provided however, that\nif any such Force Majeure shall continue for thirty (30) consecutive days,\neither party shall have the right to terminate this Agreement without incurring\nany penalty.\n\n         F. Entire Agreement. This Agreement (i) constitutes the binding\nagreement between the parties; (ii) represents the entire agreement between the\nparties and supersedes all prior agreements relating to the subject matter\ncontained herein and (iii) may not be modified or amended except in writing\nsigned by the parties.\n\n         G. Survival. The following sections shall survive any termination or\nexpiration of this Agreement: 1, 3.B.(ii), 7, 8, 12, 14, 15, 16, 17, 18, 19 and\n20.\n\n         H. Governing Law. This Agreement shall be governed by, and construed\nin accordance with the laws of the State of New York without regard to the\nconflicts of laws principles thereof.\n\n         J. Assignment. Neither party shall sell, transfer or assign this\nAgreement or the rights or obligations hereunder, without the prior written\nconsent of the other party, such consent not to be unreasonably withheld or\ndelayed.\n\n         K. Headings. The headings of the various sections of this Agreement\nhave been inserted for convenience of reference only.\n\nIN WITNESS WHEREOF, the parties hereto have executed and delivered this\nAgreement as of the date first above written.\n\nFor Net Grocer, Inc.                               For iVillage, Inc.\n\nDavid Nissan                              Steven Elkes\n------------------------                  ------------------------------------\n(Name)                                    (Name)\n\nPresident &amp; CEO                           Vice President Finance\/Legal Affairs\n------------------------                  ------------------------------------\n(Title)                                   (Title)\n6-30-98                                   6-30-98\n------------------------                  ------------------------------------\n(Date)                                    (Date)\n\/s\/ Daniel Nissan                         \/s\/ Steven Elkes\n------------------------                  ------------------------------------\n(Signature)                               (Signature)\n\n\n\n\n\n                                   EXHIBIT A\n\n\n----------------------------------------- ---------------------\n          QUARTER                                          QUARTERLY PAYMENT\n----------------------------------------- ------------------------------------\n\n----------------------------------------- ------------------------------------\n    Year One Quarter 1                                            [*] \n----------------------------------------- ------------------------------------\n    Year One Quarter 2                                            [*]\n----------------------------------------- ------------------------------------\n    Year One Quarter 3                                            [*]  \n----------------------------------------- ------------------------------------\n    Year One Quarter 4                                            [*]   \n----------------------------------------- ------------------------------------\n\n----------------------------------------- ------------------------------------\n    Year Two Quarter 1                                            [*]  \n----------------------------------------- ------------------------------------\n    Year Two Quarter 2                                            [*]  \n----------------------------------------- ------------------------------------\n    Year Two Quarter 3                                            [*]   \n----------------------------------------- ------------------------------------\n    Year Two Quarter 4                                            [*]   \n----------------------------------------- ------------------------------------\n\n\n\n\n\n\n                                   EXHIBIT B\n\n\nOnCart\nPeapod\nShopper Express\nHome Runs\nHome Grocer\nStreamline\nShopLink\nPinkDot\nGroceries-To-Go\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8326],"corporate_contracts_industries":[9499],"corporate_contracts_types":[9613,9620],"class_list":["post-42834","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-netgrocer-inc","corporate_contracts_industries-retail__food","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\/42834","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=42834"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42834"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42834"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42834"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}