Professional Documents
Culture Documents
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 Agreement includes the
following sections:
1. Engagement
2. Advertising Services
7. Indemnification
9. Specific Performance
13. Severability
14. Notices
15. Assignment
19. Counterparts
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.
Glam and Affiliate have entered this Agreement with the goals of growing the
audience for the Affiliate Websites, growing Glam’s overall users, and deriving
mutual financial benefit.
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. Both Glam and the Affiliate
agree to keep each other informed of sales activities through regular contact 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
Websites and share a percentage of revenue resulting from advertisers paying for
such Advertising with Affiliate according to the terms described below and in
Section 4 of this Agreement.
a. Advertising shall include all or some portion of the following items but shall
not be limited to:
Both Affiliate and Glam specifically agree to take the following actions in order
to execute the Advertising:
iv. Implement all tags, formatting and code necessary in order for
Glam to exercise its rights under this Agreement;
ii. Include the “Ads by Glam” Branding at the top of every Glam
Advertising unit, or as otherwise agreed to by both parties.
iv. Allow Glam to link to the Affiliate Websites from all websites
and affiliate publishers owned and/or managed in any way by Glam;
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 the Non- Disclosure Agreement
in Attachment D.
b. Payment Amount
Glam shall remit to Affiliate a monthly payment based on revenue earned(4a). The
Payment Amount earned on a monthly basis, will be paid no more than ninety (90)
days following the last day of the calendar month in which the revenue was earned.
c. Additional Information
With each remittance from Glam as set forth in Section 4.a 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 preceding month.
Affiliate covenants and agrees to keep strictly confidential the fact and amount
of the payment under this Agreement, 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.
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.
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.
This Agreement will commence on the date above and shall continue for a term of
two (2) years (“Term”), this initial Term will be automatically renewed thereafter
annually for twenty-four (24) month periods provided that either party does not
give written termination notice within 30 days from the end of the 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
4 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 may
terminate this Agreement effective immediately without prior notice. Affiliate
may not terminate this Agreement prior to the end of the initial Term; however,
either party may terminate this Agreement on 30 days prior notice for any material
breach by the other party 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 Glam for any reason, the following shall occur:
b. Glam and Affiliate shall promptly remove all Advertising and the Glam
Network Branding from the Affiliate Websites; and
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 2 and 3.
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 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.
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.
15. Assignment.
This Agreement may not be assigned by Affiliate without the Company’s prior
written consent. This Agreement may be assigned by the Company without
Affiliate’s consent.
16. No Joint Venture.
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.
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.
AFFILIATE:
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
These Editorial Standards exist to help the Affiliate and Glam achieve their goals
of growing the audience for the Affiliate Websites, 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 Websites to ensure adherence with the
requirements of this Agreement. The Editorial Standards include the following:
1. Unacceptable Content.
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.
c. Continue the general topic that is the focus of the Affiliate Websites or
provide Glam with thirty (30) days prior written notice if the focus of the
Affiliate Websites is substantially changing. Glam will undertake a review of the
Affiliate’s new direction at that time to determine suitability for Glam.
comScore Networks TAL: Traffic Assignment Request for comScore Networks Reporting
By entering into this agreement you certify that you, the Affiliate,
c) requests assignment of the traffic to these URLs from your company to Glam
Media, Inc. in the comScore Networks syndicated audience measurement reports.
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)
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 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.)
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.
Attachment C
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
2. Glam has a set of new offerings which will be added as part of Glam
Advertising Services, and Glam intends to roll out additional service offerings
over time. The services may include site search, network search, web search,
search text ads (“Glam Search”)and contextual ads (“Glam Contextual”), e-mail
services and ecommerce affiliate programs ( “ eCommerce”), polling and market
research services (“ Research”) and direct selling services, among other services,
collectively referred to herein as the “Glam Services”.
3. Glam may enter into agreements with third parties for the provision of the
Glam Services and those third parties may change from time to time.
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.
E. Glam and Affiliate wish to extend the Glam Services to Affiliate Websites.
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 Websites.
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 Websites.
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:
(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 Websites 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 Websites. 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 Websites, Affiliate agrees to terminate any
existing agreement it had with any of the Named Entities for similar services,
except as expressly provided for herein.
(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 Websites. The Affiliate Websites’ 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 Websites 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.
(a) with respect to the Glam Services, edit, modify, truncate, filter or change
the order of the information contained in any search results and/or advertising
results (either individually or collectively), including, without limitation, by
way of commingling search results and/or advertising results with search results
or advertising not provided through the Glam Services;(b) frame any results page
or destination page; (c) redirect an end user away from the destination page,
provide a version of the destination page different from the page that an end user
would access by going directly to the destination page, intersperse any content
between an advertising result or search result and the corresponding destination
page or implement any click tracking or other monitoring of advertising results or
search results; (d) display any search results and/or advertising results in pop-
up, pop-under, exit windows, expanding buttons, or animation; (e) display any
search results and/or advertising results to any third parties other than end
users, except as expressly permitted by Glam; (f) minimize, remove or otherwise
inhibit the full and complete display of any results page (including any search
results and/or advertising results), and the corresponding destination pages; (g)
produce or distribute any software, or permit any of its software to be
distributed with software, that prevents the display of ads provided by Service
Providers (such as by way of blocking or replacing ads); (h) directly or
indirectly access, launch and/or activate the Search Services through or from, or
otherwise incorporate the Search Services in, any software application, website or
other means other than the Glam Websites or Affiliate Websites, and then only to
the extent expressly permitted by Glam; (i) transfer, sell, lease, syndicate, sub-
syndicate, lend, or use for co-branding, timesharing, service bureau or other
unauthorized purposes any Search Services or access thereto (including, but not
limited to search results and/or advertising results, or any part, copy or
derivative thereof), except as expressly permitted by Glam, and then only to the
extent expressly permitted therein; (j) enter into any arrangement or agreement
under which any third party pays Affiliate fees, revenue payments and/or royalties
for any search results and/or advertising results derived from the Search
Services;(k) directly or indirectly generate queries, or impressions of or clicks
on the Search Services’ search or advertising results, through any automated,
deceptive, fraudulent or other invalid means including, but not limited to, click
spam, robots, macro programs, and Internet agents); (l) encourage or require end
users or any other persons, either with or without their knowledge, to click on
advertising results through offering incentives or any other methods that are
manipulative, deceptive, malicious or fraudulent (each of the foregoing in
subsections (k) and (l), a “Fraudulent Act”); (m) modify, adapt, translate,
prepare derivative works from, decompile, reverse engineer, disassemble or
otherwise attempt to derive source code from any Search Services, the applicable
protocol, or any other related technology, content, data, routines, algorithms,
methods, ideas design, user interface techniques, software, materials, and
documentation; (n) remove, deface, obscure, or alter any Service Provider’s
copyright notices, trademarks or other proprietary rights notices affixed to or
provided as a part of any Search Services, their protocols, or any other related
technology, software, materials and documentation; (o) “crawl”, “spider”, index or
in any non-transitory manner store or cache information obtained from the Search
Services (including, but not limited to, search results and/or advertising
results, or any part, copy or derivative thereof); (p) create or attempt to create
a substitute or similar service or product through use of or access to any of the
Search Services or proprietary information related thereto; or (q) engage in any
action or practice that reflects poorly on a Service Provider or otherwise
disparages or devalues such Service Provider’s reputation or goodwill.
(a) to the extent permitted by applicable law or any agreement, none of the
Service Providers have any liability for any damages, whether direct, indirect,
incidental or consequential, arising from the Affiliate Websites’ access to or use
of the Search Services; (b) the Service Providers provide to Affiliate no
warranties with respect to the Search Services, including without limitation,
implied warranties and warranties for merchantability, fitness for a particular
purpose, and non-infringement; (c) Affiliate will strictly maintain the
confidentiality of the Service Providers’ confidential information, consistent
with the terms and conditions specified by Glam; and (d) Affiliate has no
ownership in any intellectual property rights in and associated with the Search
Services.
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 Websites
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 Websites’ 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 Websites that has
been assigned a single client ID, immediately suspend its distribution of the
Search Services to such group of Affiliate Websites, 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 Websites, and the Service Provider may
immediately deactivate such Affiliate Websites’ 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.
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.
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.
Attachment D
NON-DISCLOSURE AGREEMENT
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.
NOW, THEREFORE, in consideration of the covenants and agreements set forth herein,
the parties hereto agree as follows:
1. Definitions.
As used herein:
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.
3. Limitations.
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 U.S. law or regulations from participating in U.S.
export transactions, or in violation of any other U.S. export restrictions.
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 California without regard to any
principles governing conflicts of laws.
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.