SCHEDULE 2
MICROSOFT NETWORK OF INTERNET SERVICES ADVERTISING
This Schedule 2 (the "Schedule") is made pursuant to that certain Master
Advertising Agreement (the "Agreement") dated April 5, 2001 by and between
Microsoft Corporation ("Microsoft Corporation") and eDiets.com, Inc. ("Company")
and is entered into by and among the Company and Microsoft. This Schedule
confirms the terms pursuant to which Company will purchase advertising
placements on the web sites set forth in this Schedule (collectively "MSN"),
effective July 1, 2002 (the "Effective Date"). This Schedule is entered into
between Microsoft Online, L.P. ("Microsoft Online"), MSNBC Interactive News,
L.L.C ("MSNBC") and together with Microsoft Online, ("Microsoft") and Company.
1. AD PLACEMENTS:
1.1 During the Term, Microsoft will provide a total of [***] to Company as
set forth in Exhibit 2-A attached hereto, unless the parties agree
upon alternate placements and fees in writing. "Ad Requests" means the
request of an advertising element as a direct result of a user's
action, as recorded by the advertisement's server software.
1.2 Company agrees to refresh its creative as mutually agreed during the
Term, but no less frequently than once every seven (7) days.
1.3 Microsoft may, in its sole discretion, deliver Ad Requests in excess
of the total set forth above, however, Company will not be obligated
to pay Microsoft for such over-delivery, unless the parties agree on
payment terms in a written amendment to this Schedule.
1.4 Make Goods:
1.4.1 If Microsoft fails to deliver the agreed upon aggregate number
of Ad Requests during the Term, Company's sole remedy for such
failure will be the extension of the Term for (i) a period of
sixty (60) days, or (ii) until the agreed upon number of Ad
Requests (or other Ad Requests as the parties mutually agree)
are provided, whichever is longer.
1.4.2 The delivery of Ad Requests will be measured [***] as set forth
in Exhibit 2-A, attached hereto, or otherwise as agreed upon by
the parties in writing in advance of each [***]. If Microsoft,
at the end of any given [***] during the Term, has failed to
deliver at least [***] of the Ad Requests committed for such
quarter, Company reserves the right to withhold payment due for
such Ad Requests until such shortfall is delivered by Microsoft,
at which time the funds withheld will be released; provided,
however, that if such Ad Requests are not delivered within (60)
days following the end of the applicable [***], Company shall
not pay for such undelivered Ad Requests. Further, in the case
where a particular placement is contained in the media plan for
more than one [***] and the CPM rate for that placement
increases from one [***] to the next, it is understood that the
entire Ad Request commitment at the lower CPM must be met before
the higher CPM is applied, regardless of the [***] in which the
delivery is made or completed.
1.5 On a monthly basis, the parties will discuss additions, changes and
deletions to the placements set forth in this Section 1 and Company's
advertising creative in an effort to optimize campaign performance of
the Ad Requests. Subject to mutual written agreement and inventory
availability, Microsoft will make all reasonable efforts to implement
such revisions.
1.6 Microsoft will make commercially reasonable efforts to maintain
aggregate click-through rates for the Ad Requests purchased pursuant
to this Schedule which are substantially similar to those aggregate
click-through rates historically provided by Microsoft under the
Agreement. Company shall make commercially reasonable efforts to
optimize the creative selections given to Microsoft for fulfillment of
this Schedule. Failure by Microsoft to meet or exceed such historical
aggregate click-through rates will not be deemed a breach of this
Schedule. Microsoft makes no warranty about the click-through rate to
be provided through each Exhibit 2-A ad placement.
2. EXCLUSIVE PROVISION OF CONTENT: During the Term, Microsoft will not accept
advertising from or license products or services owned or distributed by
[***] on the following MSN sites or any successor sites (collectively the
"Sites") (including without limitation, pages contained within the Sites or
linked to the Sites): [***]
[***] Confidential Information
Microsoft Confidential
Page 1 of 20
[***]. Except as provided herein, nothing in this Schedule will be
construed as restricting Microsoft's ability accept advertising from or
license products or services owned or distributed by other entities focused
on dieting and weight loss
3. WOMENCENTRAL MINI-SITE:
3.1 Microsoft will create a site within WomenCentral for use by
WomansCentral and MSN users, which site will allow such users review
diet, fitness and nutrition information (the "Mini-Site"). The
Mini-Site will:
3.1.1 Be at least five (5) to six (6) pages in length; and
3.1.2 Be created and hosted by Microsoft within WomenCentral using
Content. Such Content will include, without limitation Company's
tools such as a body mass indicator or calorie calculator; and
3.1.3 Be available for WomenCentral users through a persistent link (a
text link or graphical link to be mutually agreed to by the
parties) on the WomenCentral home page; and
3.1.4 Include the following on navigation structure of the Mini-Site:
(a) the logos of Microsoft and Company; (b) hyperlink to
WomenCentral, MSN or any page therein as mutually agreed to by
Microsoft and Company; (c) be located at the top of each page of
the Mini-Site 3.1.5 Include graphic and text links, which links
will be placed on the Mini-Site as mutually agreed to by the
Microsoft and Company, to Company's site, with a goal of
increasing new membership in Company's site and diet programs;
and
3.1.6 Include an attribution to Company as approved by the Company
such as "Sponsored by eDiets."
3.2 Company will refresh the Mini-Site creative as mutually agreed upon
during the Term, but no less frequently than once each month of the
Term.
3.3 Company will be solely responsible for customer service for products
and services offered by Company on the Mini-Site.
3.4 Microsoft and Company shall mutually agree on the design and content
of the Mini-Site, but Microsoft will have ultimate editorial control
over the Mini-Site. Microsoft will approve the Mini-Site no later than
ten (10) days prior to launch of the Mini-Site (tentatively scheduled
for July 1, 2002). Company will comply with the WomenCentral
specifications set forth in Exhibit 2-B attached hereto, and will
reasonably cooperate with Microsoft to test the operation and
functionality of the Mini-Site prior to its launch by Microsoft.
4. MSNBC PLACEMENTS: MSNBC will provide Company with the following placements
on the MSNBC Web Site (as defined below): (a) advertorial integration, as
set forth in Section 4.1; (b) placement in the Resource Guide, as set forth
in Section 4.2; and (c) placement on the MSNBC home page, as set forth in
Section 4.3:
4.1 Advertorial Integration:
4.1.1 MSNBC will create and develop a fly-out menu from the "Health"
or "Living" Navigation Bar Menu on the MSNBC Web Site as such
Section is mutually determined by MSNBC and Company) titled
"Special Advertiser Features". Users who activate the "Special
Advertiser Features" fly-out menu will have the option to link
to the Jump Page. "Navigation Bar Menu" means the navigation
elements appearing on the left side of web pages within the
MSNBC Web Site, which shall consist of the MSNBC logo and
internal graphic or text links to web pages within the MSNBC Web
Site, as may be modified by MSNBC in its discretion. "MSNBC Web
Site" means the MSNBC Web Site currently located at URL:
http://www.msnbc.com or any successor site and modified from
time to time by MSNBC, in its sole discretion, that may include,
but is not limited to, any and all other web sites created,
registered, owned and/or controlled by MSNBC. "Jump Page" means
the co-branded web page within the MSNBC Web Site hosted and
maintained by MSNBC, which shall contain Content and links to
Company's Site. "Section" means a specific designated
information area within the MSNBC Web Site. Examples of Sections
include, without limitation, Sports, Business, Health,
Classifieds and Living.
4.1.2 MSNBC will maintain one or more links from the "Health" or
"Living" Section of the MSNBC Web Site to the Jump Page. The
number, size, placement and other characteristics of such links