GLAM MEDIA, INC.
AFFILIATE
LINKAGE AND ADVERTISING AGREEMENT
PLEASE READ VERY CAREFULLY THESE TERMS AND CONDITIONS BEFORE REGISTERING FOR THE GLAM MEDIA AD NETWORK PROGRAM. PARTICIPATION IN THE GLAM MEDIA AD NETWORK PROGRAM INDICATES THAT YOU ACCEPT THESE TERMS AND CONDITIONS. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS, PLEASE DO NOT REGISTER FOR OR PARTICIPATE IN THE GLAM MEDIA AD NETWORK PROGRAM.
This agreement (“Agreement”) by and between Affiliate and Glam Media, Inc. (“Glam Media”) (together, the “Parties”) consists of these Terms and Conditions and the accompanying attachments, which are incorporated in full by this reference. “You” or “Affiliate” means any entity identified in the enrollment form submitted by the same or affiliated persons, and/or any agency or network acting on its (or their) behalf, which shall also be bound by the terms of this Agreement. In the event of a conflict between these terms and conditions and the terms of the accompanying attachments, these terms and conditions shall control. The attachments incorporated herein by reference are:
Attachment A: Glam Editorial Standards for Linked Affiliates
Attachment B: (a): comScore
Networks TAL:
Networks
Reporting
(b): Nielsen Netratings TAL:
Networks
Reporting
Attachment C: Search and Contextual Advertising Services
Attachment D: Nondisclosure Agreement
1. Engagement.
Glam owns and operates an interactive consumer platform that delivers fashion and personal style news, shopping and e-commerce via content, services, multimedia and products, all of which are available through its the website, http://www.Glam.com and its related servers, feeds and other affiliated websites.
Affiliate authors, updates, brands and oversees website(s) (“Affiliate Website(s)”), with a focus on fashion and personal style news, entertainment, health, lifestyle, shopping and/or e-commerce presenting content, services, multimedia and products of interest to Glam’s current and future users.
Glam and Affiliate have entered this Agreement with the goals of growing the audience for the Affiliate Website(s), growing Glam’s overall users, and deriving mutual financial benefit.
The parties agree to collaborate to deliver the following services, as specified below and in the Attachments hereto.
2.
Advertising Services.
Affiliate hereby grants Glam the exclusive, worldwide right to manage and sell all Prime Time Ad-units. Prime Time Ads are defined by Glam as advertisements that are above the fold with the following pixel Dimensions, according the Interactive Advertising Bureau, IAB http://www.iab.net/standards/adunits.asp : 728x90, 160x600, and 300x250. Glam will allow Affiliate to continue to engage in other non-competing revenue generating advertising programs such as non-site-specific blind networks that are pre-approved by Glam until Glam can offer a similar program that will adequately replace those revenues. Affiliate agrees to keep Glam informed of sales activities in order to ensure maximum revenue potential for the Affiliate and make certain that there are no channel conflict issues.
Glam shall select and serve marketing messages from third parties and from Glam (collectively, the “Glam Network”) in the form of banners, text links, video streams, pre-rolls, headline links, sponsorships, buttons and other such creative units determined by Glam and its advertisers (“Advertising”) into the Affiliate Website(s) and share a percentage of revenue resulting from advertisers paying for such Advertising with Affiliate according to the terms described below and in Section 3 of this Agreement.
a. Advertising shall include all or some portion of the following items but shall not be limited to:
i. Banners, display, text, video, and GlamTV in the form of 728x90 pixels, 300x250 pixels, 160x 600, 300x600 pixels and other such units requested by advertisers (“Banners”);
ii. A content module with up to five headline links to Glam Media network content or promotions;
iii.
Messaging provided by Glam that describes the site as a
Glam Media Network affiliate (“
Both Affiliate and Glam specifically agree to take the following actions in order to execute the Advertising:
b. Affiliate agrees to:
i. Display Advertising on pages of the Affiliate Website(s) subject to Glam’s approval and the terms of this Agreement;
ii. Post Glam’s contact information in the advertising section of the Affiliate Website(s).
iii. Make third-party advertising provided to Affiliate by Glam the most prominent advertising on the Affiliate Website(s) and appear on the Affiliate Website(s)’ first visible page (i.e., above the “fold”);
iv. Implement all tags, formatting and code necessary in order for Glam to exercise its rights under this Agreement;
i. Place Glam Network Branding with contact information on the Property, in a form and manner as reasonably determined by Affiliate and Glam;
ii. Provide Glam with a default ad tag or image for unsold inventory to place in Glam’s ad serving system;
iii. Obtain Glam’s approval of the placements and targeting of the Advertising at all times and all references to Glam in the Affiliate Website(s);
iv.
Not place
Advertising in any photo gallery sections, forums or other user generated
content areas, on any blank pages or stack Advertising so that more than 2 ads
are next to each other;
v. Not place Advertising on any urls not approved by Glam in this Agreement, not to alter, copy, modify, take, sell, re-use, in any manner any Advertising, not use auto spamming browsers, forced clicks or in any way induce persons to click on Advertising based upon incentives not intended to be associated with the advertisement.
c. Glam agrees to:
i.
Identify and integrate the Affiliate as a member of the
ii. Sell and place Advertising on the Affiliate Website(s) pages; and
iii. Share such revenue received by Glam from advertisers for Advertising placed on the Affiliate Website(s) by Glam with Affiliate consistent with the provisions of Section 3 of this Agreement.
3.
Affiliate Publisher Editorial Services.
Affiliate shall author, update, brand and oversee (collectively, “Publish”) the Affiliate Website(s), as described below in this Section. Both Affiliate and Glam specifically agree to the following:
a. Affiliate agrees to:
i. Regularly Publish the Affiliate Website(s) in a way that adheres at all times to the Glam Editorial Standards for Linked Affiliates set forth in Attachment A (“Editorial Standards”) and regularly monitor the Affiliate Website(s), including all parts and aspects of the Affiliate Website(s), for compliance with the Editorial Standards;
ii. Include the “Ads by Glam” Branding at the top of every Glam Advertising unit, or as otherwise agreed to by both parties.
iii. Allow Glam to advertise, promote and publicize Affiliate and Affiliate Website(s) availability on www.Glam.com;
iv. Allow Glam to link to the Affiliate Website(s) from all websites and affiliate publishers owned and/or managed in any way by Glam;
v. Allow Glam to modify the Advertising, which appears on the Affiliate Website(s), as described in this Section 2; provided, however, Glam may not otherwise change the content or meaning of the Affiliate Website(s), except, however, if the Affiliate Website(s) do not meet the Editorial Standards or other requirements for the Affiliate Website(s) set forth in this Agreement, Glam may remove the Affiliate from Glam.com and the Advertising from the Affiliate Website(s) without providing Affiliate with prior notice; provided that Glam promptly notifies Affiliate of any such removal by email and reinstates the site upon the site’s cure of such failure if within 7 days;
vi. Take commercially reasonably measures to maintain the web server supporting the Affiliate Website(s) in order to ensure that the Affiliate Website(s) are available twenty-four (24) hours a day, every day of the year. Affiliate shall notify Glam as soon as Affiliate becomes aware that its web server is not operating and as soon as it becomes available again;
vii. Not include in its Affiliate Website(s) or its linkages any software, tools or text that could cause Glam’s or its users’ websites, systems and networks harm from reduced system performance, system unavailability, data loss, or other damage; and
viii.
Sign and maintain the comScore
Networks TAL:
ix.
At all times
during the term of this Agreement (i) maintain a
privacy statement that complies with all applicable laws, rules and
regulations, and (ii) provide a brief explanation within the privacy
statement explaining that Affiliate allows third parties to serve creatives within its Website(s).
b. Glam agrees that:
i. Affiliate shall have control over the editorial content and “look and feel” of the Affiliate Website(s), subject to the terms of this Agreement;
ii. Glam shall advertise, promote and publicize Affiliate and Affiliate Website(s) availability on Glam.com in areas, selected in Glam’s sole discretion, that may include but shall not be limited to:
(1)
Placement in the
(2)
Placement in the
(3) Contextual placement throughout Glam.com where appropriate and relevant to a particular page, product, or story on Glam.com;
iii. Other than modifying the Advertising as explicitly described above in this Section 2, Glam may not otherwise change the content or meaning of the Affiliate Website(s), except, however, if the Affiliate does not meet the Editorial Standards or other requirements for the Affiliate set forth in this Agreement, Glam may remove the Affiliate from Glam’s website and the Advertising from the Affiliate Website(s) without providing Affiliate with prior notice; provided that Glam promptly notifies Affiliate of any such removal by email and reinstates the site upon the site’s cure of such failure if within 7 days.
4.
Compensation and Revenue Share.
In consideration of the obligations to be performed by Affiliate under the terms of this Agreement, Glam agrees to compensate the Affiliate as follows:
a. Revenue
Share
Net Advertising Revenue received by Glam from third-party advertisers for Advertising placed on the pages of the Affiliate Website(s) shall be shared by Glam and Affiliate on the following basis: Fifty percent (50%) to Glam and fifty percent (50%) to Affiliate. “Net Advertising Revenue” shall be defined as gross revenues, less agency fees, charge backs, bad debt, distribution fees, brand research, refunds and other such offsets. When no Banners from third-party advertisers are placed in the Advertising unit on the Affiliate Website(s), Glam shall at its option, place Glam.com Banners and/or other bonus (non-revenue generating) third-party ads in the Advertising unit until new third-party ads become available.
b.
Payment Amount
Glam shall remit to Affiliate a monthly payment based on revenue earned (“Payment Amount”). The Payment Amount earned on a monthly basis will be paid no more than thirty (30) days following the last day of the calendar month in which the revenue was collected.
c.
Additional Information
With each remittance from Glam as set forth herein, Glam shall provide Affiliate with a statement setting forth the revenue earned by Affiliate, the number of advertisers and other reasonable supporting information regarding revenues accrued during the preceding month.
5.
Copyrights, Linking and Licenses.
Affiliate grants to Glam:
a. A worldwide, transferable, royalty-free license to link to the Affiliate Website(s) and to serve Advertising into the Affiliate Website(s) for the permitted uses set forth in this Agreement; and
b. The right to use Affiliate’s name, likeness, photograph and biographical material in connection with all permitted uses set forth in this Agreement. The Affiliate shall be credited at all times as the publisher of the Affiliate Website(s) in connection with all permitted uses by Glam.
Except as expressly set forth in this Agreement, neither party grants the other party any other licenses to its content, proprietary materials, and intellectual property, including all copyrights, trademarks, trade names, service marks, and patents, and all such rights are reserved.
6. Mutual Representations and Warranties.
Each party represents and warrants to the other party that:
a. There are no agreements or arrangements, written or oral, that would be breached upon the respective party’s execution or performance of this Agreement, that would restrict, interfere or conflict with the respective party’s obligations under this Agreement, or that would diminish the other party’s rights granted under this Agreement;
b. Each party shall comply with all the terms, conditions, obligations and restrictions in this Agreement;
c. Each party has the right, power and authority to enter into this Agreement and perform its obligations as set forth herein; and
d. Each party shall at all times be in compliance with all applicable laws, rules and regulations with respect to this Agreement.
7.
Indemnification.
Each party shall defend, indemnify and hold harmless the other party, its affiliates, employees, successors and assigns, against and from any and all third party claims, liabilities, damages, fines, penalties or costs of whatsoever nature (including reasonable attorney’s fees and costs), arising out of or in any way connected with its breach of its representations and warranties under this Agreement.
8.
Term and Termination.
This Agreement will commence on the date above and shall continue for a term of one (1) year (“Term”). This initial Term will be automatically renewed thereafter annually for twelve (12) month periods provided that either party does not give written termination notice within 60 days from the end of the initial Term.
If Affiliate fails to comply with any material obligation under this Agreement, including, but not limited to, those obligations listed in Attachment A and Attachments Ca and Cb, such failure shall constitute an event of default (“Event of Default”) and Glam shall be released from all payment obligations under Section 3 of this Agreement, except to the extent such obligations are outstanding and due to Affiliate prior to the Event of Default. Upon an Event of Default, Glam shall notify Affiliate of the Event of Default in writing and may terminate this Agreement in 5 days if such Event of Default is not cured by Affiliate during the 5-day notice period. Affiliate may not terminate this Agreement prior to the end of the Initial Term; however, Affiliate may terminate this Agreement on 30-days prior notice for any material breach by Glam of this Agreement, if the material breach is not cured within the 30-day notice period. Upon termination of this Agreement at the end of the Initial Term or by either party in accordance with the terms herein, the following shall occur:
a. All copyrights, linking and licenses granted in this Agreement cease;
b.
Glam and Affiliate shall promptly remove all
Advertising and the
c. Glam shall make a final remittance to Affiliate of Affiliate’s share of outstanding Net Advertising Revenue according to the terms of Section 3.
9. Specific Performance
The parties hereby acknowledge and agree that the failure of any party to perform its agreements and covenants hereunder will cause irreparable injury to the other party, for which damages, even if available, will not be an adequate remedy. Accordingly, each party hereby consents to the issuance of injunctive relief by any court of competent jurisdiction to compel performance of such party’s obligations and to the granting by any court of the remedy of specific performance of its obligations hereunder, including, without limitation, with respect to obligations under this Agreement relating to Editorial and Advertising services described in Sections 1 and 2.
10. Right of First Refusal
a. Notice. If at any time Affiliate proposes to sell, license, lease or otherwise transfer all or any portion of its interest in any of the Affiliate Website(s), then Affiliate shall promptly give Glam written notice of Affiliate’s intention to sell (the “Notice”). The Notice shall include (i) a description of the website’s content, (ii) the name(s) and address(es) of the prospective purchaser(s), (iii) the proposed consideration and (iv) the material terms and conditions upon which the proposed sale is to be made. The Notice shall certify that Affiliate has received a firm offer from the prospective purchaser(s) and in good faith believes a binding agreement for the sale is obtainable on the terms set forth in the Notice. The Notice shall also include a copy of any written proposal, term sheet or letter of intent or other agreement relating to the proposed sale.
b. Right of First Refusal. Glam shall have an option for a period of 15 days from receipt of the Notice to elect to purchase Affiliate’s interest in such website(s) at the same price and subject to the same material terms and conditions as described in the Notice. Glam may exercise such purchase option by notifying Affiliate in writing before expiration of the 15-day period. In this event, Affiliate agrees to enter into an agreement on terms substantially similar to the terms set forth in the Notice.
11. Limitation of Liability.
Except for a party’s obligations under the indemnification provisions set forth in Section 6 of this Agreement, neither party nor its affiliates shall be liable or obligated under any section of this Agreement or under contract, negligence, strict liability or other legal or equitable theory for any special, incidental or consequential damages (including any loss of revenue, profits or data) exemplary or punitive suffered or incurred by the other party or its affiliates.
12. Confidentiality.
Affiliate covenants and
agrees to keep strictly confidential the terms of this Agreement (“Confidential
Information”) and shall not disclose such Confidential Information to any other
person or entity, unless required by applicable securities or other laws, or
disclosed in confidence to Affiliate’s attorneys or other authorized
representatives. Affiliate agrees to
request all persons receiving Confidential Information to agree to abide by
Affiliate’s obligations with respect to the Confidential Information and
require that each shall have executed or shall execute an appropriate written
statement to that effect.
13. Entire Agreement, Amendment.
This Agreement represents the entire agreement between Affiliate and Glam with respect to the subject matter hereof and thereof and supersedes all previous oral or written communications, representations or agreements. This Agreement may be modified only by writing executed by the parties hereto.
14. Severability.
To the extent that any of the provisions of this Agreement, or any word, phrase, clause, or sentence in it shall be found to be illegal or unenforceable for any reason, such provision, word, clause, phrase or sentence shall be modified or deleted in such a manner so as to make the Agreement as modified legal and enforceable under applicable laws, and the balance of the Agreement or parts thereof shall construed as severable and independent and not be affected thereby.
15. Notices.
All notices or other communications required under or regarding this Agreement shall be in writing and shall be deemed sufficient when delivered personally or sent by electronic mail or facsimile (in each case, with prompt confirmation of receipt) or upon deposit in the U.S. mail, as certified or registered first class mail, with postage prepaid, and addressed, if to Glam at its principal place of business set forth in the preamble of this Agreement and if to Affiliate at Affiliate’s place of business set forth in the signature page of this Agreement, unless, in either case, written notice of another address shall have been provided to the other party in the manner provided for in this Section. If mailed, any such notice will be considered to have been given one business day after it was mailed, as evidenced by the postmark.
16. Assignment.
This Agreement may not be assigned by Affiliate without Glam’s prior written consent. This Agreement may be assigned by Glam without Affiliate’s consent.
17. No
Joint Venture.
Nothing contained in this Agreement will be construed as creating a joint venture, partnership or employment relationship between the parties hereto, nor will either party have the right, power or authority to create any obligation or duty, express or implied, on behalf of the other.
18. Governing Law.
This Agreement shall be governed by the laws of the state of California, without regard to the choice of law provisions thereof, which state shall have jurisdiction of the subject matter hereof.
1.
Successors and Assigns.
The terms of this Agreement shall bind, and shall inure to the benefit of, the permitted successors and assigns of the parties hereto.
2. Counterparts.
This Agreement is entered into by two counterparts, each of which shall be deemed an original and which together shall constitute one instrument.
|
Glam Media, Inc.: |
AFFILIATE: |
|
|
|
|
Name: Ernest Cicogna Title: CFO |
The "Affiliate" refers to the entity identified in the enrollment form submitted by the same or affiliated persons, and/or any agency or network acting on its (or their) behalf, which shall also be bound by the terms of this Agreement. |
|
|
|
Attachment A
Glam Editorial Standards
for Linked Affiliates and Glam.com Websites
These Editorial Standards exist to help the Affiliate and Glam achieve their goals of growing the audience for the Affiliate Website(s), growing Glam’s overall users, and deriving mutual financial benefit. As outlined below, these Editorial Standards set forth some known limits for editorial content. The list of standards specified below, however, is not a comprehensive listing of prohibited conduct by Affiliate. The Affiliate remains fully responsible for ongoing monitoring of content on the Affiliate Website(s) to ensure adherence with the requirements of this Agreement. The Editorial Standards include the following:
1.
Unacceptable Content.
The Affiliate Website(s), including all information, text, images, photographs, graphics, e-mail addresses, web pages, comments and reviews, discussion board postings and other materials contained in or linked to the Affiliate Website(s), may not contain, publish, link to, sell or otherwise distribute any “Unacceptable Content.” Unacceptable Content is defined as content that:
a. Is lewd, profane, obscene, or indecent, including any content that is violent or pornographic or that contains nudity, explicit violent or sexual material, or depictions of violent or sexual acts;
b. Is harassing, threatening, abusive, inflammatory or otherwise objectionable, including content used to harass, stalk or threaten a person;
c. Is unlawful or that could facilitate the violation of any applicable law, regulation or governmental policy;
d. Offers or disseminates any fraudulent goods, services, schemes or promotions, including any make-money-fast schemes, chain letters, or pyramid schemes;
e. Is libelous, defamatory, knowingly false or misrepresents another person;
f. Infringes upon the intellectual property rights of any third party, including the copyrights, trademarks, trade names, trade secrets or patents of such third party;
g. Is harmful to Glam’s or any other party’s systems and networks, including any transmissions which may damage, interfere with, surreptitiously intercept, or expropriate any system, program, data or personal information;
h. Violates any obligation of confidentiality;
i. Violates the privacy, publicity, moral or any other right of any third party; and
j. Consists of any other content that Glam in its sole discretion deems to be Unacceptable Content.
If Affiliate permits user comments and trackbacks on the Affiliate Website(s), Affiliate shall regularly monitor these comments and remove any that include and/or link to Unacceptable Content.
2. Editorial
Consistency.
The Affiliate and the Authors must also:
a. Ensure that all content contained in the Affiliate Website(s) is original material created by Affiliate, unless proper attribution is given to a third party. A ready definition of proper attribution and fair use is set forth in The Electronic Frontier Foundation’s “Legal Guide for Blogger’s” at http://www.eff.org/bloggers/lg/;
b. Ensure that all opinions and statements are representative of the Affiliate’s honest views; and
c. Continue the general topic that is the focus of the Affiliate Website(s) or provide Glam with thirty (30) days prior written notice if the focus of the Affiliate Website(s) is substantially changing. Glam will undertake a review of the Affiliate’s new direction at that time to determine suitability for Glam.
Glam, in its sole discretion, will determine what constitutes “Unacceptable Content” under these Editorial Standards. Glam is under no obligation to monitor the Affiliate for compliance with these Editorial Standards. Glam may change the Editorial Standards at any time by providing Affiliate with ten (10) business days prior written notice. Glam reserves the right to remove the Affiliate, without providing the Affiliate with prior notice, from www.glam.com at any point if the Affiliate posted uses Unacceptable Content or otherwise does not meet the requirements for the Affiliate set forth in this Agreement. Glam reserves the right to terminate this Agreement without prior notice in the event that, in Glam’s judgment, Affiliate has violated the Editorial Standards or the other requirements for the Affiliate set forth in this Agreement. Affiliate shall not have any right to review or approve Glam’s use of the Affiliate content, provided such use is in compliance with this Agreement.
Attachment B
(a)
comScore
Networks TAL:
By entering into this agreement you certify that you, the Affiliate,
a)
are
the majority owner of the URLs listed below
b)
enjoys
a legitimate business relationship with Glam Media, Inc. justifying the
aggregation of this traffic, and
c)
requests
assignment of the traffic to these URLs from your company to Glam Media,
Inc. in the comScore Networks syndicated audience
measurement reports.
In requesting this assignment, I understand that the
websites submitted in this form will not receive credit for traffic to these
URLs in the syndicated audience reports for those entities where Glam Media,
Inc. elects to include these URLs.
These URLs may not be assigned to any other company. In the event that comScore
Networks receives multiple requests for assignment of the same URL, comScore will review and honor the request most recently
received.
I understand that this request is subject to review by comScore Networks to determine that the assignment of
traffic is consistent with comScore Networks
reporting rules. comScore
Networks retains the right in its sole discretion to refuse the requested assignment
if such assignment would in fact be inconsistent with comScore
Networks reporting rules. If necessary, comScore Networks may require additional documentation to
verify ownership of the URLs before granting this request. For example, if your company is not the named registrant of the URLs
listed below, you must provide documentation demonstrating
that the registrant of those URLs is (1) owned or (2) employed by your
company.
I understand that acceptance
of this letter by comScore Networks, Inc. imposes no
legal liability whatsoever on comScore Networks, Inc.
for damages, whether actual, incidental or consequential, relating to the
maintenance or reporting of the attached URLs.
I understand that my company is fully responsible for timely notification
to comScore Networks, Inc. of any updates to the list
below, including, but not limited to, changes in ownership of any of those
URLs.
Your company shall indemnify and hold harmless comScore
Networks from and against any claims, liabilities, costs and expenses of any
kind (including reasonable attorney’s fees and expenses) arising out of any
allegation of improper assignment of the URLs pursuant to this letter.
Attachment B (b)
NetView
Request for the Assignment of Syndicated
Report
I, hereafter Assignor, would like to
transfer Assignor traffic to GLAM MEDIA, INC, hereafter Assignee, for the
purpose of NetRatings, Inc. syndicated audience measurement
reports. By requesting this assignment, I understand that Assignor will not
receive credit for traffic for these domains and URLs in the NetRatings, Inc. syndicated audience reports but will be
included in the aggregation of traffic by the Assignee. These domains may only
be assigned to one company and may not be assigned to any other company. In the
event that NetRatings, Inc. receives multiple
requests for assignment of the same domain or URL, NetRatings,
Inc. will honor the request most recently received.
I certify that Assignor is the majority
owner of the domains and URLs listed below and enjoys a legitimate business
relationship with Assignee justifying the aggregation of this traffic in the NetRatings, Inc. syndicated audience measurement reports.
I understand that this request is subject
to review by NetRatings, Inc. to determine that the
assignment of traffic is consistent with NetRatings,
Inc. reporting rules. NetRatings, Inc. retains the
right in its sole discretion to refuse the requested assignment if such
assignment would in fact be inconsistent with NetRatings,
Inc. reporting rules. If necessary, NetRatings, Inc.
may require additional documentation to verify ownership of the domains and
URLs before granting this request. For example, if Assignor is not the named
registrant of the domains and URLs listed below, Assignor must provide
documentation demonstrating that the registrant of those domains and URLs is
(1) owned or (2) employed by Assignor.
I understand that in the event that a URL
that is not listed on the attached list displays the exact same Web page/site
as a URL that is listed on the attached list, NetRatings,
Inc. shall be entitled to count/report the traffic from such URL as if such URL
was included on the list. (For example: (i) siteX.com
is included on the attached list but siteX.net is not; (ii) siteX.net displays
the exact same Web page as siteX.com; (iii) siteX.com and siteX.net shall be
treated the same by NetRatings, Inc.)
I understand that acceptance of this letter
by NetRatings, Inc. imposes no legal liability
whatsoever on NetRatings, Inc. for damages, whether
actual, incidental or consequential, relating to the maintenance or reporting
of the attached domains and URLs.
I understand that Assignor is fully responsible
for timely notification to NetRatings, Inc. of any
updates to the list below, including, but not limited to, changes in ownership
of any of those domains and URLs. I further understand that NetRatings,
Inc. may terminate this assignment at any time in its sole discretion.
Assignor shall indemnify and hold
harmless NetRatings, Inc. from and against any
claims, liabilities, costs and expenses of any kind (including reasonable
attorney’s fees and expenses) arising out of any allegation of improper assignment
of the domains and URLs pursuant to this letter.
This assignment request shall expire on the
third anniversary of the date of this letter, unless an earlier expiration date
is set forth in this letter. Upon termination, the traffic for the domains and
URLs being assigned hereunder shall be credited to the Assignor or as otherwise
consistent with NetRatings, Inc.’s reporting rules.
GLAM MEDIA, INC.
Attachment C
Search and Contextual Advertising
Services
This Addendum
(the “Addendum”) is made to that certain Affiliate Linkage and Advertising
Agreement (the “Agreement”) entered into between Glam Media, Inc. (“Glam”) and
(“Affiliate”) dated as of the date of this form submission. This
Addendum is effective upon execution by both parties as of the date set forth
below (the “Addendum Effective Date”)..
The terms
and conditions of this Addendum and any accompanying exhibits and attachments
are incorporated in full into the Agreement by this reference. In the event of a conflict between the terms
and conditions of this Addendum, and the terms and condition of the Agreement,
the terms and conditions of this Addendum shall prevail. Any capitalized term not defined herein shall
have the same meaning as set forth in the Agreement.
Recitals
D. Glam
has entered into a certain services agreement with a third party for the third
party to provide certain web search and related advertisement and content
search services (collectively, “Search Services”). Glam may enter into similar
services agreements from time to time with various third party providers to
offer Search Services (each, a “Service Provider”) as part of the Glam
Services.
F. Under
its service agreements with its Service Providers, Glam may commit to meet
certain terms and conditions in order to receive the Search Services for the
Glam Websites and any Affiliate Website(s).
G. Under
such services agreements, Glam may be required to obtain from Affiliate its
written commitment to comply with certain terms and conditions in order to
extend the Search Services as part of the Glam Services to the Affiliate
Website(s).
NOW
THEREFORE, in
consideration of the mutual promises made herein and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties agree as follows:
1. Cooperate with Requirements. Affiliate shall cooperate with Glam with any reasonable
requests or requirements with respect to the implementation and deployment of
the Glam Services, including the technical implementation and brand treatment
of a search box for end users on each Affiliate Website, and the delivery,
display and placement of contextual advertisements on Affiliate Website.
2.. Exclusivity of Glam Services.
(a) By executing this Addendum, Affiliate agrees
to accept all of the Glam Services currently offered, except to the extent that
an Affiliate requests and Glam, in its sole discretion, agrees to exclude a
particular service from the Glam Services and documents such exclusion on
Exhibit B to this Addendum, which if completed, will be incorporated in full
into the Agreement.
(b) Affiliate agrees to comply with the
exclusivity requirements for receipt of the Glam Services as specified in this
Section 2. A current listing of services
provided by Glam as part of the Glam Services is attached as Exhibit A. In addition, Exhibit A sets forth a listing
(which may be a partial listing) of the services which are currently excluded
from the Glam Services. The parties
agree that Glam, in its sole discretion, may revise Exhibit A by adding or
deleting services from time to time and the revised Exhibit A will replace the
former Exhibit A as of its effective date and be incorporated in full into the
Agreement.
(c) During the term of its Agreement with Glam,
Affiliate agrees to not use or deploy any service on the Affiliate Website(s)
which is the same as or substantially similar in nature to the Glam Services
then in effect, including but not limited
to services offered by the following entities: Google, Yahoo! Inc., Microsoft Corporation,
InterActiveCorp, AOL LLC, InfoSpace Inc, NBC
Universal, AdBrite, Adify, BlogHer, BlogAds, Federated
Media, Gorilla Nation, Amazon, eBay and such additional entities as Glam may
identify to Affiliate from time to time (each, a “Named Entity”), unless such Named Entity services are provided
through Glam as part of the Glam Services.
Notwithstanding the foregoing, if Glam does not currently provide a
service similar to the Named Entity service (as documented as excluded in
Exhibit A or as otherwise confirmed by Glam) or if Glam has agreed that an
Affiliate does not have to accept a particular service as part of the Glam
Services consistent with the provisions of Section 2(a) above, Affiliate may
use or continue to use such service in connection with its Affiliate
Website(s). At the request of an Affiliate,
Glam, in its sole discretion, may permit an Affiliate to use or continue to use
a specified service provided by a Named Entity which is similar to a Glam
Service currently provided, which such consent shall be documented in Exhibit
B.
(d) During the term of its Agreement with Glam, and
prior to implementation of the Glam Services on the Affiliate Website(s),
Affiliate agrees to terminate any existing agreement it had with any of the
Named Entities for similar services, except as expressly provided for herein.
3. Conditions to Permitted Distribution of the Search Services.
Affiliate agrees that:
(a) Affiliate shall implement the Search Services in accordance with the
implementation terms and conditions specified by Glam to Affiliate;
(b) Affiliate’s access to the Search Services shall at all times comply
with the technical and implementation requirements specified by Glam to the
Affiliate;
(c) Glam shall provide the direct interface and be the sole intermediary
between Affiliate and the Service Providers for any of the Search Services
provided to the Affiliate Website(s).
The Affiliate Website(s)’ access to any web search results and display
advertisements or other Search Services shall be solely through Glam. For the avoidance of doubt, this means
Affiliate will not modify and will properly implement the programming elements
specified by Glam, and the Service Providers shall not be responsible for any
incompatibility of an Affiliate Website with such programming elements;
(d) Affiliate will implement the Search Services in a manner that
requires each web search and/or query entered by an end user of an Affiliate
Website on any search box to be referred back to a results page that is hosted
by Glam and co-branded with the Affiliate;
(e) Affiliate shall comply with, and each Affiliate Website’s display of
the web search results or advertisements
shall be in compliance with, all terms and conditions specified by Glam for the
use of the Glam Services;
(f) The Affiliate Website(s) shall not display or use any brand features
of the Named Entities or make any attribution of any kind to the Named Entities
without Glam’s prior written consent;
(g) Each Affiliate Website shall unambiguously
mark each cluster or grouping of advertisements as “Sponsored Links” or other
equivalent designation indicating that such advertisements are compensated
linked advertisements, and distinct from search results;
(h) Affiliate shall be responsible and liable for any and all use of the
Search Services by any Affiliate Website;
(i) The Service Providers shall not indemnify
any claim relating to or arising from Affiliate Website’s use and/or display
of, or access to the web search results and advertisements;
(j)
Affiliate shall indemnify Glam for any lawsuit or proceeding (1) relating to or
arising from any Affiliate Website's use of the Search Services; and/or (2)
relating to or arising from Affiliate's failure to ensure Affiliate’s or any
Affiliate Website's compliance with the terms of this Addendum. Affiliate shall not bring a claim against
Glam and/or its Service Providers based upon a claim that such Service Provider
breached an implied warranty to Affiliate arising from or relating to Glam’s provision of access of the Search Services to
Affiliate. Affiliate agrees to promptly
notify Glam if it becomes aware of any breach of a requirement of this
Addendum.
4. Prohibited
Activities.
In addition to the restrictions set forth in the Agreement, including
those with respect to Unacceptable Content, Affiliate agrees that it will not
engage in any of the following prohibited activities and such other activities
which Glam may reasonably specify:
5. Additional Terms and Conditions. Affiliate acknowledges and agrees to the
additional terms and conditions set forth below in consideration of the revenue
sharing provided under Section 7 of this Addendum:
Affiliate further acknowledges and agrees to the additional
terms and conditions set forth below in consideration of the revenue sharing
provided under Section 7 of this Addendum:
(a) Glam retains the right to immediately suspend or
terminate Affiliate Website(s) right to use, display or access any Glam Service
upon written notice to the Affiliate.
(b) If the applicable services agreements or any applicable
order forms between Glam and its Service Providers terminate or expire, all
Affiliate Website(s)’ rights to use, display and/or access any Search Services
shall cease.
(c) In the event that any Service Provider provides Glam
with written notice that (1) an Affiliate Website is in breach of the requirements
of the applicable services agreement and/or this Addendum or
(2) the Service Provider reasonably suspects such a breach, Glam shall: (i) immediately suspend (as defined below) its distribution
of Search Services to the applicable Affiliate Website or, if the breaching
Affiliate Website is a part of a group of Affiliate Website(s) that has been
assigned a single client ID, immediately suspend its distribution of the Search
Services to such group of Affiliate Website(s), and (ii) terminate this Addendum
between Glam and Affiliate if such breach is not cured by Affiliate to the
Service Provider’s satisfaction within five (5) business days of Glam’s
receipt of notice from its Service Provider.
As used in this Addendum, the term “suspend” shall mean that upon the
Service Provider’s written request, Glam will immediately remove or cause to be
removed any Search Services implemented or displayed on the applicable
Affiliate Website(s), and the Service Provider may immediately deactivate such
Affiliate Website(s)’ access to any Search Services. The duration of any suspension will be until
such time as the Service Provider is reasonably satisfied that no breach by the
applicable Affiliate Website has occurred, the applicable Affiliate Website has
cured the breach giving rise to such suspension, or this Addendum has been
otherwise terminated.
(d) In addition, upon written notice, Glam may immediately
terminate this Addendum if: (i) an Affiliate Website
engages in any activity prohibited by this Addendum or is in material breach of
the requirements of this Addendum more than twice notwithstanding any cure of
such breaches; or (ii) if Glam determines in its sole reasonable discretion
that the display of the Search Services’ results or advertisements on an
Affiliate Website damages or has damaged a Service Provider’s brand, reputation
or goodwill.
(e) In the event of any breach by an Affiliate Website, Glam
will either pursue any available remedies against the Affiliate to the fullest
extent permitted by the Agreement and applicable law, or assign any claims Glam
may have to its Service Provider, including potentially giving the Service
Provider full control and sole authority over the claim.
7. Compensation and Revenue Share.
In consideration of the services to be performed by
Affiliate pursuant to this Addendum, Glam agrees to compensate Affiliate as
follows:
(a) Fees for Additional Units.
Net
Advertising Revenue received by Glam from the Glam Services placed on the pages
of the Affiliate Website in advertising units which shall not include the
Banners already defined in the Agreement (the “Additional Units”), shall be
shared 25% to Glam and 75% to Affiliate.
Glam Services placed in Banners shall be paid out according to terms
defined in the Agreement. With each
remittance from Glam as set forth in this Section 7.a, Glam shall provide
Affiliate with a statement setting forth the fees earned by Affiliate during
the preceding month.
(b) Confidentiality of Fact and Amount of
Payment.
Affiliate
covenants and agrees to keep strictly confidential the fact and amount of the
payment under this Addendum, and shall not disclose such information to any
other person or entity, unless required by applicable securities or other laws,
law or disclosed in confidence to Affiliate’s attorneys.
8.
No Joint Venture. Nothing
contained in this Agreement will be construed as creating a joint venture,
partnership or employment relationship between the parties hereto, nor will
either party have the right, power or authority to create any obligation or
duty, express or implied, on behalf of the other.
Attachment D
NON-DISCLOSURE
AGREEMENT
THIS NON-DISCLOSURE AGREEMENT (this “Agreement”) is entered into and effective as of the date of this form submission, 2007 between Glam Media, Inc and Affiliate (the Affiliate), which are referred to herein separately as a “party” or together as the “parties”.)
RECITALS:
A. The parties are interested in entering into discussions which may lead to one party (the “Receiving Party”) obtaining disclosure of confidential information by from the other party (the “Disclosing Party”) for the purposes of evaluating and/or entering into a affiliate linkage and advertising services arrangement.
B. In connection therewith, Disclosing Party may also disclose certain information concerning its businesses, products and contract terms, a portion of which information is regarded as confidential or proprietary and which may include valuable commercial assets. The parties desire to provide for a means of determining which information is confidential or proprietary information and for the respective rights and duties of the parties with respect thereto.
NOW, THEREFORE, in consideration of the covenants and agreements set forth herein, the parties hereto agree as follows:
1. Definitions.
As used herein:
a. The term “Information” shall mean all information relating to the products, designs, inventions, research, trade secrets, personnel, business, financial condition or prospects of the Disclosing Party, or which the Disclosing Party obtained from a third party, that is furnished to the Receiving Party by the Disclosing Party or its agents, or is obtained by the Receiving Party through its inspection of the Disclosing Party’s property.
b. The term “Confidential Information” shall mean all Information that the Disclosing Party protects against unrestricted disclosure to others and which: (i) if in written or other tangible form, is clearly designated as “Confidential” or “Proprietary”; and (ii) if disclosed orally, is designated to be “Confidential” at the time of its disclosure or which under the circumstances surrounding disclosure ought to be treated as confidential. By way of illustration, but not limitation, Confidential Information may include equipment, products, inventions, concepts, designs, drawings, schematics, plans, production specifications, source code, libraries, agents, applets, script, JavaScript, object classes, software architecture, object code, flowcharts, source listings, software-related documentation, databases, structures, formulas, algorithms, techniques, processes, circuits, computer disks or tapes whether machine or user readable, business plans, market data, market studies and analyses, financial information, data regarding suppliers and customers, and confidential information received from third parties. Confidential Information shall include all copies, reproductions, photographs, images, records, and extracts thereof, as well as all notes and summaries prepared by the Receiving Party from Information of the Disclosing Party which is Confidential Information.
2. Protection of Confidential Information.
Receiving Party agrees, with respect to any Confidential Information received by it:
a. To hold and use such Confidential Information in confidence, to take all necessary and reasonable precautions to prevent disclosure of such Confidential Information, including, without limitation, precautions at least as great as the methods and degree of care the Receiving Party uses to prevent disclosure of its own proprietary and confidential information and to use such Confidential Information solely for the purpose(s) expressed in Recital A of this Agreement;
b. To disclose Confidential Information only to the Receiving Party’s officers, employees and consultants on a need-to-know basis;
c. To request all persons receiving Confidential Information to agree to abide by the Receiving Party’s obligations with respect to the Confidential Information and require that each shall have executed or shall execute appropriate written agreements sufficient to enable the Receiving Party to comply with all of the provisions of this Agreement;
d. To notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of this Agreement by Receiving Party and in every reasonable way to cooperate and to assist the Disclosing Party to regain possession of the Confidential Information and to prevent its further unauthorized use; and
e. To promptly return the Confidential Information existing in any tangible form to the Disclosing Party and destroy all Confidential Information of the Disclosing Party stored electronically or otherwise as part of any data storage system, at any time upon the request of the Disclosing Party, which return and destruction shall be certified under oath if so requested by the Disclosing Party.
3. Limitations.
The Receiving Party shall not be obligated to treat Information as Confidential Information if such Information:
a. Was rightfully in the Receiving Party’s possession or was rightfully known to the Receiving Party prior to receipt from the Disclosing Party; or
b. Is or becomes public knowledge without the fault of the Receiving Party ; or
c. Is or becomes rightfully available to the Receiving Party without confidential restriction from a source not bound by a confidentiality obligation to the Disclosing Party; or
d. Is independently developed by the Receiving Party without use of the Confidential Information disclosed hereunder; provided, however, that the burden of proof of such independent development shall be upon the Receiving Party; or
e. Is required to be disclosed pursuant to court or government action, or applicable securities laws; provided, however, that the Receiving Party must give the Disclosing Party reasonable prior notice of disclosure pursuant to such court or government action, and the Information shall continue to be treated as Confidential Information for all other purposes.
The obligations of confidentiality and other restrictions
imposed under Section 2 hereof shall terminate
with respect to any Confidential Information which ceases to be Confidential
Information in accordance with this Section 3.
4. Ownership;
No Implied License or Permission to Use.
No license, right, title or interest is granted, directly or indirectly, by the Disclosing Party in or to any Information, patent, copyright, trade secrets, Derivative, or other property as a result of conveying Information to the Receiving Party, except such license or other rights as may be mutually and expressly agreed upon between the parties by separate written agreement. For the purposes of this Agreement, Derivative shall mean (i) for copyrightable or copyrighted material, any translation, abridgment, revision or other form in which an existing work may be recast, transformed or adapted; (ii) for patentable or patented material, any improvement thereon; and (iii) for material which is protected by trade secret, any new material derived from such existing trade secret material, including new material which may be protected by copyright, patent and/or trade secret. Receiving Party further agrees that, notwithstanding the respective proprietary positions in any Information or objects disclosed to it, it will not undertake, or allow others, to reverse engineer, decompile or disassemble, any equipment, media, software or other Confidential Information disclosed to it, nor will Receiving Party use any Confidential Information except for the purpose(s) specified in Recital A of this Agreement.
5. Warranties
and Disclaimers.
Disclosing Party warrants that it has the unqualified lawful right to transmit, exchange and otherwise control and dispose of the Information that it supplies under this Agreement. Nothing herein requires the disclosure of any Information by Disclosing Party or requires either party to proceed with any proposed transaction or relationship in connection with Information disclosed. No other rights, obligations or warranties, implied or express, are deemed to arise between the parties out of the performance of this Agreement other than those expressly recited herein or mutually agreed to in writing by a separate agreement. Receiving Party understands that Disclosing Party makes no representation or warranty as to the accuracy or completeness of any Information furnished by it hereunder, except to the extent expressly set forth in a definitive agreement executed between the parties to effect the contemplated transaction.
6. No Waiver.
None of the provisions of this Agreement shall be deemed to have been waived by any act or acquiescence on the part of either party, its employees or agents, but only by an instrument in writing signed by an authorized officer of the respective party. No waiver of any provision of this Agreement shall constitute a waiver of any other provision or of the same provision on another occasion.
7. No Export.
Neither party shall
export any Information to any country in violation of the United States Export
Administration Act and regulations thereunder, to any
end-user who has been prohibited by
8. Assignment.
The Disclosing Party may freely assign its rights under this Agreement to any entity formed or controlled by the Disclosing Party. The Receiving Party may assign its rights under this Agreement only to a third party which acquires a majority voting interest in the Receiving Party or which acquires substantially all of the assets of the Receiving Party, provided that all of the rights and obligations contained herein shall inure to the benefit of and be binding upon any such assignee.
9. Entire Agreement.
This Agreement, including its recitals, contains the entire understanding between the parties and supersedes all prior or contemporaneous communications, agreements, and understandings between the parties with respect to the subject matter hereof. This Agreement may be modified only by a written amendment executed by both parties and made a part hereto by incorporation.
10. Governing Law.
The validity and interpretation of this Agreement and the
enforcement thereof shall be governed by the laws of the state of
11. Attorneys’ Fees.
The prevailing party in any action brought for the enforcement or interpretation of this Agreement shall be entitled to receive from the losing party a reasonable sum for its actual out of pocket attorneys’ fees and costs of litigation, in addition to any other relief to which it may be entitled.
12. Equitable Remedies.
Each of the parties acknowledge that the unauthorized disclosure of Confidential Information will diminish the value of the proprietary interests of the Disclosing Party therein and may cause irreparable damage, including loss of profit, reputation and good will. Accordingly, it is agreed that if Receiving Party breaches its obligations hereunder, Disclosing Party shall be entitled to equitable relief to protect its interests, including but not limited to injunctive relief, as well as monetary damages.