MASTER ADVERTISING AGREEMENT
(NON-STANDARD)
This Master Advertising Agreement (the "Agreement") is made and entered
into as of the 29th day of March, 2001 (the "Effective Date") by and between
eDiets.com ("Company"), with its principal business offices located at 3467 West
Hillsboro Boulevard, Suite Two, Deerfield Beach, FL 33442, and Microsoft
Corporation ("Microsoft"), with its principal business offices located at One
Microsoft Way, Redmond, WA 98052.
In consideration of the covenants and conditions hereinafter set forth,
Microsoft and Company agree as follows:
1. Services. Company shall participate in the program(s) set forth in the
Schedule(s) attached hereto by mutual written agreement of the parties.
Each Schedule shall be not be effective until signed by both parties.
2. Payment.
a. Invoices. Company shall pay Microsoft the fees set forth in each
Schedule within thirty (30) days after the date of each Microsoft invoice.
Amounts not paid when due or during the cure period under this Agreement
will accrue interest at a rate of one and one-half percent (1.5%),
compounded on a monthly basis. In addition to all other available rights
and remedies, Microsoft reserves the right to cancel and remove any and
all advertisements if Company fails to make timely payments of any amounts
owing hereunder. All payments of amounts owing to Microsoft will be made
at the following location or such other location designated by Microsoft
in writing: Microsoft Corporation, P.O. Box 7247-7123, Philadelphia, PA
19170-7123.
b. Taxes. The fees, advances and other amounts owing to Microsoft pursuant
to this Agreement do not include taxes or other governmental fees. Company
will pay all taxes and other governmental fees arising out of or related
to all transactions undertaken pursuant to this Agreement, other than
taxes on Microsoft income and revenue, and will provide Microsoft with
appropriate evidence of such payment upon request.
3. Content license. Company will provide advertisements, trademarks, product
images and/or content (collectively, "Content") necessary to fulfill its
obligations under each Schedule. Company hereby grants Microsoft a
world-wide, non-exclusive, royalty-free license to distribute, display,
transmit, and otherwise use the Content as reasonably anticipated to
fulfill Microsoft's obligations under this Agreement and such Schedule(s).
4. Content limitations. Content may not contain, advertise, link (either
directly or, if with the knowledge of Company, indirectly) to or otherwise
be related to content that (a) is obscene, defamatory, libelous,
slanderous, profane, indecent or unlawful; (b) infringes or
misappropriates third party intellectual property rights (including, but
not limited to, copyrights, trademarks, service marks or any other
proprietary, publicity or privacy right); (c) constitutes "hate speech",
whether directed at an individual or a group, and whether based upon the
race, sex, creed, national origin, religious affiliation, sexual
orientation or language of such individual or group; (d) facilitates or
promotes gambling, or the sale or use of liquor, tobacco products or
illicit drugs; or (e) facilitates, promotes or forwards illegal contests,
pyramid schemes or chain letters. Microsoft may, but is under no
obligation to, review the Content, and may refuse to make Content
available to users in whole or in part if Microsoft determines that
Content violates the foregoing limitations or such other reasonable
limitations as Microsoft may adopt from time to time. Additionally,
Company warrants that it will not willfully or knowingly provide Content
which promotes or contains viruses, worms, corrupted files, cracks or
other materials that are intended to or may damage or render inoperable
software, hardware or security measures of Microsoft, subscribers or any
third party. Failure by Microsoft to exhibit Content which does not meet
the specifications required by Microsoft, includes materials which do not
meet Microsoft's content limitations, and/or is in violation of Company's
warranties does not constitute a breach of this Agreement or otherwise
entitle Company to any legal remedy.
5. Links to Internet sites. Company warrants and represents to Microsoft that
each Internet site identified by URLs in advertisements is in compliance
with Company's warranties set forth in Section 8. Microsoft may reject any
Content or refuse to provide links from any site owned, operated or
controlled by Microsoft to any materials on Company's site that: (a)
violates Company's warranties; (b) is factually inaccurate, misleading or
deceptive; and/or (c) contain any programs, application, interfaces or
other functions that, given the nature of the Microsoft network of
Internet services (collectively, "MSN") and in Microsoft's reasonable
judgment would have a deleterious effect on any MSN user's experience. In
determining whether any materials on the Company's site or Content would
have a deleterious effect on a MSN user's experience, Microsoft shall use
standards consistent with those Microsoft uses to determine quality
standards for its other featured partners. Microsoft may test Company's
URLs, and in Microsoft's sole discretion may remove any URLs at any time
that fail to comply with the above requirements if Company has not cured
such failure within forty-eight (48) hours of notification.
Notwithstanding the foregoing, Company may provide alternate URLs to