Exhibit 10.5
DATABASE TRANSFER
AGREEMENT
THIS DATABASE TRANSFER AGREEMENT
(this “Agreement”) is made and entered into December
19, 2005 (the “Effective Date”) by and between Alloy
Merchandising, LLC, a Delaware limited liability company
(“Transferor”), and 360 Youth, LLC, a Delaware limited
liability company (“Transferee”). Capitalized terms not
defined herein shall have the meaning ascribed to such terms in the
Distribution Agreement by and between Alloy, Inc.
(“Alloy”) and dELiA*s, Inc. (“dELiA*s”)
dated as of December 12, 2005 (the “Distribution
Agreement”)
WHEREAS, Transferor has collected,
assembled and maintains a database which contains information on
individual customers or prospective customers and may include
navigational information, transactional information, including
billing and credit information, and internet/email addresses,
postal addresses, and/or other identifying information (the
“Customer Data”);
WHEREAS, the Parties hereto have
entered into that the Distribution Agreement to effect the
separation of the merchandising and retail business from the other
businesses conducted by Alloy and its Subsidiaries and the transfer
of substantially all of the assets and liabilities related to the
merchandising business, including stock and membership interests in
certain Subsidiaries, to dELiA*s followed by the distribution of
the stock of dELiA*s to Alloy’s shareholders;
WHEREAS, as a result of the Spinoff,
Transferor will be wholly-owned and controlled by dELiA*s and
Transferee will be wholly-owned and controlled by Alloy;
WHEREAS, the Alloy and dELiA*s, in
connection with the Spinoff entered into that certain Media
Services Agreement dated as of December
, 2005 (the “Media Services
Agreement”) regarding, among other things, Alloy acting as
agent for dELiA*s and its Subsidiaries for certain advertising
purposes and the joint ownership of certain data;
WHEREAS, Transferor and Transferee
currently share certain categories of the Customer Data and in
contemplation of the Spinoff desire to jointly own all categories
of the Customer Data except for credit card data (the
“Profile Data”), subject to the limitations herein set
forth; and
NOW THEREFORE, in consideration of
the premises hereof, and the mutual obligations herein, the parties
hereto, intending to be legally bound, hereby covenant and agree as
follows:
1. Delivery of Profile Data by
Transferor. No later than the Effective Date, Transferor shall
deliver to Transferee complete copies of any and all Profile Data,
in electronic form in a format used by the parties immediately in
effect prior to the Effective Date. Along with such delivery,
Transferor agrees to assign and hereby does assign to the
Transferee an undivided and joint right, title and interest in and
to such Profile Data, subject to the terms and conditions herein
contained.
2. Application of Privacy
Policy . The parties agree that the Profile Data is subject to
certain limitations on subsequent use and dissemination (including
Opt-Outs, as described below) in accordance with the privacy policy
in effect at the time such Profile Data was provided. Each party
agrees that it will use any Profile Data solely in accordance with
the terms of such privacy policy and each party shall indemnify the
other as set forth in this Agreement for any breach of the
foregoing.
3. Error Corrections,
Opt-Outs. The parties shall cooperate to correct any error(s)
in the Profile Data that may materially impair the use or
dependability of the Profile Data and/or identify and remove any
Customer Data erroneously included in the Profile Data. Each party
further agrees that it will honor any request received by current
or prospective customer to restrict the disclosure or dissemination
of the Customer Data identifying such customer (each an
“Opt-Out”). Each party agrees to transmit to the other
party on a daily basis any Opt-Outs it receives during the previous
day in a format used by the parties in effect immediately before
the Effective Date or otherwise mutually agreeable to both parties.
Each party further agrees that that any such Customer Data shall be
so restricted within a reasonable time after receiving the Opt-Out
request and to negotiate in good faith with the other party any
changes the processes and procedures followed by the
parti
