GLAM MEDIA, INC.
TINKER PUBLISHER NETWORK AFFILIATE LINKAGE AND ADVERTISING AGREEMENT
This TINKER PUBLISHER NETWORK Affiliate Linkage and Advertising Agreement (this “Agreement”) is entered into as of ______________, by and between Glam Media, Inc., a Delaware corporation with its principal place of business at 8000 Marina Boulevard, Suite 130, Brisbane, CA 94005 (“Glam”), and _________ (“Affiliate”), with its principal place of business at ______________________________________________.
This Agreement consists of these terms and conditions and the accompanying attachments, which are incorporated in full by this reference. In the event of a conflict between these terms and conditions and the terms of the accompanying attachments, these terms and conditions shall control.
1. Engagement.
Glam owns and operates an interactive consumer platform that delivers primarily news, entertainment, , information, shopping and e-commerce via content, social media, services, multimedia and products, all of which are available through its websites, http://www.Glam.com, http://www.Tinker.com and http://www.Brash.com and its related servers, feeds and other affiliated websites.
Affiliate authors publishes, brands and oversees website(s) located at the following URL(s): _____________(“Affiliate Websites”), that aggregate third party content with a focus on _____________________ , presenting content, services, multimedia and products of interest to Glam’s current and future users.
Glam and Affiliate have entered this Agreement with the goal 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 non-exclusive, worldwide right to manage and sell Advertisements (defined below) on the Affiliate Websites. Tinker Publisher Network program Advertisements are defined by Glam as those certain Advertisements in Glam’s inventory that are determined by Glam to be Tinker Publisher Network inventory and that are Above-the-Fold, which is defined as any ad unit that is displayed in the first 1,000 pixels from the top of the screen.
Glam shall select and serve Advertisements from third parties and from Glam in all or some portion of the following, but shall not be limited to:
i. banners with pixel dimensions of 728x90, 160x600, 300x600 or 300x250 according the Interactive Advertising Bureau standards (“IAB”: http://www.iab.net/standards/adunits.asp), sponsorships, text links, video streams, pre-rolls, and other such creative units (“Advertising”) , into the Affiliate Websites and share a percentage of revenue resulting from advertisers paying for such Advertising, according to the terms described below and in Section 4 of this Agreement.
The parties specifically agree to take the following actions in order to execute the Advertising:
a. Affiliate agrees to:
i. Display Advertising on pages of the Affiliate Websites according to the terms of this Agreement;
ii. Implement all tags, formatting and code necessary in order for Glam to exercise its rights under this Agreement;
iii. Provide Glam with a default ad tag or image for unsold inventory to place in Glam’s ad serving system;
iv. Execute and implement all reasonable Advertising campaigns that are sold by Glam during the term of this Agreement. If a campaign has been sold by Glam during the term of the Agreement and the flight date occurs after the term of the contract is complete the Affiliate is still obligated to execute the Advertising campaign in full;
v. Comply at all times with Glam’s instructions relating to the placements, amount and targeting of the Advertising and all references to Glam on the Affiliate Websites;
vi. Not use auto-refreshing technology or employ other similar practices or place advertising from Glam in any photo gallery sections, forums or on any corporate or blank pages or stack Advertising so that more than 2 ad units are next to each other;
vii. Notify Glam of all advertising partners that have the ability to sell site-targeted advertising on the Affiliate websites;
viii. Sign and maintain the comScore Networks TAL: Traffic Assignment Request for comScore Networks Reporting and Nielsen NetView Reporting, attached hereto as Attachment C(a) and Attachment C(b); and
ix. 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 to use auto spanning browsers, forced clicks or in any way induce persons to click on advertisements based upon incentives not intended to be associated with the advertisement.
b. Glam agrees to:
i. To use commercially reasonable efforts to sell and place Advertising on the Affiliate Websites; and
ii. Share such revenue received by Glam from advertisers for Advertising placed on the Affiliate Websites with Affiliate consistent with the provisions of Section 4 of this Agreement.
3. Affiliate Editorial Services.
Affiliate shall author, update, brand and administer (collectively, “Publish”) the Affiliate Websites, as described below:
Affiliate agrees to:
i. Publish the Affiliate Website in a way that is reasonably consistent with its current focus, functionality, design, and layout or provide Glam with thirty (30) days prior written notice if the Affiliate Websites will be materially changing. Glam will undertake a review of the Affiliate Websites modifications at that time to determine suitability for Glam and the Tinker Publisher Network program. Notwithstanding the foregoing, Affiliate may continue to refine and implement non-material modifications to the Affiliate Websites without being in breach of this Agreement;
ii. Monitor the Affiliate Websites for Unacceptable Content as such content is defined in Attachment A (attached hereto and made a part hereof) and promptly remove Unacceptable Content flagged by Affiliate, its users, or upon notice from Glam;
iii. If directed by Glam, include “Ads by Glam” Branding or other similar branding at the top of or in close proximity to Advertising units;
iv. If directed by Glam, display messaging and/or a promotional unit provided by Glam on the Affiliate Websites that describes the site as a Tinker or Glam Publisher Network affiliate (“Glam Network Branding”);
v. Allow Glam, at its discretion, to advertise, promote, publicize Affiliate and Affiliate Websites availability and link to Affiliate from all websites and affiliate publishers owned and/or managed in any way by Glam;
vi. Allow Glam to modify the Advertising, which appears on the Affiliate Websites, as described above in Section 2. In the event the Affiliate Websites do not meet the requirements for the Affiliate Websites set forth in this Agreement, Glam may remove the Affiliate from Glam.com and the Advertising from the Affiliate Websites without providing Affiliate prior notice; provided that Glam notifies Affiliate of any such removal by email. Reinstatement of the Affiliate Websites upon the cure of such failure shall be in Glam’s sole discretion;
vii. Take commercially reasonably measures to maintain the web server supporting the Affiliate Websites in order to ensure that the Affiliate Websites 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;
viii. Not include in its Affiliate Websites 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
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 it allows third parties to serve Advertising within its Web Site(s).
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 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 Websites 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 Advertisements from third-party advertisers are placed in the advertising unit on the Affiliate Websites, Glam will default the ad impression back to the Affiliate. If a default ad tag has not been implemented by the Affiliate, then Glam shall place Glam banners (non-revenue generating) and/or other bonus third-party ads (non-revenue generating) in the advertising unit until new third-party ads become available.
b. Payment. Glam shall remit to affiliate the calculated Affiliate’s share of the revenue generated. The revenue earned by Affiliate 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 has been collected.
c. Additional Information. With each remittance from Glam as set forth in Section 4b above, Glam shall provide Affiliate with a statement setting forth the fees earned by Affiliate, together with the number of advertisers and other reasonable supporting information regarding revenues accrued during the statement period.
5. Copyrights, Linking and Licenses.
Affiliate grants to Glam:
a. A worldwide, transferable, royalty-free license to link to the Affiliate Websites and to serve Advertising into the Affiliate Websites for the permitted uses set forth in this Agreement;
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 publisher shall be credited at all times as the publisher of the Affiliate Websites in connection with all permitted uses by Glam; and
c. 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 six (6) months (“Term”). Upon expiration of the initial Term, this Agreement will continue on a month to month basis. After the initial Term either party may terminate this agreement with 30 days written notice.
Either party may terminate this Agreement on 10 days prior notice for a breach of any material obligation under this Agreement, if such breach is not cured by the other party within the 10 day notice period. Such failure shall constitute an event of default (“Event of Default”). Notwithstanding anything to the contrary contained herein, if Affiliate fails to comply with those obligations listed in Attachments C(a) and C(b) (a “Rescission”), Glam may terminate this Agreement effective immediately without prior notice. If Affiliate commits an Event of Default or a Rescission , Glam shall be released from all payment obligations under Section 4 of this Agreement, except to the extent such obligations are outstanding and due to Affiliate prior to the Event of Default or Rescission.
Upon termination of this Agreement 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 any Glam Network Branding from the Affiliate Websites; and
c. Glam shall make a final remittance to Affiliate of Affiliate’s share of outstanding Net Advertising Revenue according to the terms of Section 4.
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 Advertising described in Section 2.
10. Limitation of Liability.
Except for a party’s obligations under the indemnification provisions set forth in Section 7 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.
11. 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.
12. 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 a duly authorized company officer.
13. 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.
14. 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 two business days after it was mailed, as evidenced by the postmark.
15. 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.
16. 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.
17. 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.
18. 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.
19. Counterparts.
This Agreement may be signed in two counterparts, each of which shall be deemed an original and which together shall constitute one instrument.
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Glam Media, Inc.: |
AFFILIATE:
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By: |
By: ______ |
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SIGN DATE Name: Ernest Cicogna Title: CFO |
SIGN DATE Name: Address: Address: EIN/SSN: Telephone: Fax: E-Mail: PayPal Account:
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(The above information will be used to process and send payments. If payment information is different, please note that below.) |
Attachment A
Glam Content Standards for Tinker Publisher Network Affiliates Websites
These Content Standards set forth some known limits for editorial content. The list of standards specified below, however, is not a comprehensive listing of unacceptable content for Tinker Network Publisher Affiliate Websites. The Affiliate shall use commercially reasonable efforts to monitor the content on the Affiliate Website, including both Affiliate generated and 3rd party content.
1. Unacceptable Content
The Affiliate Websites, 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 Websites, 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.
2. Editorial Consistency.
The Affiliate and the Authors must also:
Publish the Affiliate Website in a way that is reasonably consistent with its current focus, functionality, design, and layout or provide Glam with thirty (30) days prior written notice if the Affiliate Websites will be materially changing. Glam will undertake a review of the Affiliate Websites modifications at that time to determine suitability for Glam and the Tinker Publisher Network program. Notwithstanding the foregoing, Affiliate may continue to refine and implement non-material modifications to the Affiliate Websites without being in breach of this Agreement.
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. 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.
___________Affiliate initials _____________Glam initials
Attachment B
Please fill out a separate Attachment B for each website. For duplicate information put “same as {Affiliate Website name}”.
First Name: |
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Last Name: |
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E-mail: |
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Date of Birth: |
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Business Type (Individual, Proprietorship, Corporation, Other) |
____Individual ____Corporation ____Partnership ____Proprietorship ____Other |
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EIN/SSN: |
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Address: |
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City: |
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State: |
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Zip/Postal Code: |
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Fax: |
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Affiliate Website Name: |
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Affiliate Website URL: |
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Content Topics: |
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Affiliate Website Description: |
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Affiliate Website Publish/Update Frequency: |
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Affiliate Website RSS Feed: |
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___________Affiliate initials _____________Glam initials
Attachment C( a)
Traffic Assignment Request for comScore, Inc. Reporting
I,____________, ___________[title] of Company A, certify that Company A
a) is 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 Company A to Glam Media, Inc. in the comScore Inc. syndicated audience measurement reports.
In requesting this assignment, I understand that Company A 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 Inc. receives multiple requests for assignment of the same URL, comScore Inc. will review and honor the request most recently received.
I understand that this request is subject to review by comScore Inc. to determine that the assignment of traffic is consistent with comScore Inc. reporting rules. comScore Inc. retains the right in its sole discretion to refuse the requested assignment if such assignment would in fact be inconsistent with comScore Inc. reporting rules. If necessary, comScore Inc. may require additional documentation to verify ownership of the URLs before granting this request. For example, if Company A is not the named registrant of the URLs listed below, Company A must provide documentation demonstrating that the registrant of those URLs is (1) owned or (2) employed by Company A.
I understand that acceptance of this letter by comScore Inc. imposes no legal liability whatsoever on comScore Inc. for damages, whether actual, incidental or consequential, relating to the maintenance or reporting of the attached URLs. I understand that Company A is fully responsible for timely notification to comScore Inc. of any updates to the list below, including, but not limited to, changes in ownership of any of those URLs.
Company A shall indemnify and hold harmless comScore 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 URLs pursuant to this letter.
List of URLs here:
________________________ ________________________
Signature Name
_____________________ ________________________
Title Company
________________________ Date
Attachment C (b)
NetView Traffic Assignment Agreement
Request for the Assignment of Syndicated Report Traffic
I, (NAME), (TITLE) of (COMPANY A, your company), 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. Please insert date here if there is an earlier expiration date: ___________________. 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.
_________ (Please Type) ________________ ___________ (Please Type)_______________
Name Company
_______(Please Sign)___________________ __________(Please Write)_______________
Signature Date
_________(Please Type)_________________
Title/Position
List of all domains/URLs giving up traffic rights:
http://www.