COOLIRIS 3D Embed Wall License Agreement
This Cooliris 3D Embed Wall License Agreement (the "Agreement") is entered
into by Cooliris, Inc., a Delaware limited liability corporation with its
principal place of business located at 3000 El Camino Real, Building 4,
Suite 200, Palo Alto, CA. 94306 ("Cooliris"), and You ("Licensee").
1. Background. This Agreement establishes the terms and conditions under
which Cooliris will grant to Licensee a license to use Cooliris' proprietary
content-viewing technology and Cooliris' proprietary advertising serving
technology (collectively the "Cooliris 3D Embed Wall") for inclusion in a
third-party website (the "Licensee Property") for the purpose of generating
advertising revenue. "Licensee Content" means any and all content, including
all data and related information displayed in the Cooliris 3D Embed Wall
that does not violate Cooliris' then-current Publisher Program Policy.
2. License: Subject to the terms and conditions of this Agreement, Cooliris
grants Licensee a non-exclusive, non-transferable, revocable, limited right
and license to host, modify or reformat (but only technical modifications
mutually agreed upon by both parties), distribute and display the Cooliris
3D Embed Wall to display Licensee Content on the Licensee Property. Licensee
reserves all rights to the Licensee Content and any derivative works based
on it and to the Licensee Brand Features (as defined in Section 7) not
otherwise expressly granted to Cooliris pursuant to this Agreement.
3. Implementation and Technical Support: Licensee shall host Licensee
Content at Licensee's own cost for the use of the Cooliris 3D Embed Wall on
the Licensee Properties. The parties shall mutually agree on any services
needed to implement the Cooliris 3D Embed Wall on Licensee Properties where
desired.
4. Promotion: Licensee agrees to promote the availability of the Cooliris 3D
Embed Wall via the Licensee Property. The exact location and duration of
Licensee's use of the Cooliris 3D Embed Wall for specific initiatives shall
be within Licensee's sole discretion.
5. Advertising: Cooliris shall have sole control and ownership of, and the
right to sell, any advertising inventory in connection with the Licensee
Content that is served by Licensee, including, but not limited to all banner
advertisements, in-video advertisements and text advertisements that are
displayed in the Cooliris 3D Embed Wall. Cooliris shall pay to Licensee an
amount equal to seventy percent (70%) of net recognized revenue for
advertising served within Licensee Embed Wall. "Net Advertising Revenues"
means revenues received by Cooliris net of revenue shares to other third
parties.
6. Fees and Payment Terms: Cooliris shall send payments for the Advertising
Fees to Licensee thirty (30) days following the end of each calendar quarter
(i.e. March, June, September and December); provided that (i) Licensee's
Advertising Fees are two hundred and fifty dollars ($250) or more and (ii)
this Agreement has been in effect for at least sixty (60) days in the
applicable quarter. If Licensee's Advertising Fees total less than two
hundred and fifty dollars ($250) but greater than one dollar ($1), Cooliris
shall pay such Advertising Fees the earlier of (a) thirty (30) days
following the end of the calendar year during which they accrued or (b) the
end of the calendar quarter in which Licensee's Advertising Fees exceed two
hundred and fifty dollars ($250). In the event that this Agreement is
terminated, Cooliris shall pay Licensee's Advertising Fees within ninety
(90) days following the termination date.
7. Brand Features Licensee: Cooliris grants to Licensee a limited,
non-exclusive, royalty-free license during the Term for Licensee to use the
Cooliris brand and logo as provided by Cooliris on the Licensee Properties
for the sole and limited purpose of exercising and promoting the rights
expressly granted to Licensee in this Agreement and in connection with the
Cooliris 3D Embed Wall. Licensee grants to Cooliris a limited,
non-exclusive, royalty-free license during the Term for Cooliris to use the
Licensee brand and logo as provided by Licensee on the websites owned,
operated, or controlled by Cooliris or its affiliates ("Cooliris Sites") for
the sole and limited purpose of exercising and promoting the rights
expressly granted to Cooliris in this Agreement. The brands and logos shall
be referred to as the "Brand Features." Notwithstanding the foregoing, each
party may use the Brand Features of the other subject to the prior written
approval of the other party. Neither party shall create a combination mark
consisting of one or more Brand Features of the other party.
8. Representations: Each party represents and warrants to the other that it
is fully authorized to enter into, and perform its obligations under, this
Agreement and shall fully comply with all applicable laws in its performance
of this Agreement. OTHER THAN THE FOREGOING, COOLIRIS MAKES NO
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, EITHER IN FACT OR BY
OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF
MERCHANTIBILITY, QUALITY OF SERVICE, TITLE AND FITNESS FOR A PARTICULAR USE.
9. Indemnification: If a third party makes a claim against Licensee that the
Cooliris 3D Embed Wall or Cooliris Brand Features violate or infringe upon
any U.S. patent, copyright or trademark or misappropriate any trade secret
(the "IP Claim"), Cooliris shall (1) defend Licensee at Cooliris's cost and
expense, and (2) pay all costs damages and expenses (including, without
limitation, reasonable attorneys' fees) finally awarded against Licensee by
a court of competent jurisdiction or agreed to in a written settlement
agreement signed by Cooliris arising out of such IP Claim. If a third party
makes a claim against Cooliris that the Licensee Properties or Licensee
Content violate or infringe upon any U.S. patent, copyright or trademark or
misappropriate any trade secret (the "IP Claim") or that arises as a result
of Licensee's violation of the Publisher Program Policy, Licensee shall (a)
defend Cooliris at Licensee's cost and expense, and (b) pay all costs,
damages and expenses (including, without limitation, reasonable attorneys'
fees) finally awarded against Cooliris by a court of competent jurisdiction
or agreed to in a written settlement agreement signed by Licensee arising
out of such IP Claim.
If any party entitled to indemnification under this section (an "Indemnified
Party") makes an indemnification request to the other (the "Indemnifying
Party"), the Indemnified Party shall permit the Indemnifying Party to
control the defense, disposition or settlement of the matter at its own
expense; provided that the Indemnifying Party shall not, without the consent
of the Indemnified Party enter into any settlement that makes any admission
on the Indemnified Party's behalf. The Indemnified Party shall notify the
Indemnifying Party promptly of any claim for which the Indemnifying Party is
responsible and shall cooperate with the Indemnifying Party to facilitate
defense of any such claim; provided that the Indemnified Party's failure to
notify Indemnifying Party shall not diminish the Indemnifying Party's
obligations under this section except to the extent that the Indemnifying
Party is materially prejudiced as a result of such failure. An Indemnified
Party shall at all times have the option to participate in any matter or
litigation through counsel of its own selection at its own expense.
10. Limitation of Liability. Except for either party's indemnification
obligations as set forth in Section 9 above or breach of Section 11 below
("Confidentiality"), in no event shall the aggregate and cumulative
liability of either party exceed the total amounts actually paid and/or due
from Licensee in the twelve (12) months preceding the event giving rise to
such claim. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR COSTS OF
PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES BY ANYONE, NOR SHALL EITHER
PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL,
PUNITIVE, OR OTHER DAMAGES, HOWEVER CAUSED, INCLUDING, WITHOUT LIMITATION,
ANY DAMAGES RESULTING FROM LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS OR
LOSS OF BUSINESS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR OF
ANY OTHER OBLIGATIONS RELATING TO THIS AGREEMENT, WHETHER OR NOT THE PARTY
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11. Confidentiality: Each party acknowledges that the terms of this
Agreement, and information which may be obtained by each of the parties as
to the business of the other, is confidential information (the "Confidential
Information"). Each party agrees that it will take reasonable steps, at
least substantially equivalent to the steps it takes to protect its own
proprietary information to prevent the duplication or disclosure of
Confidential Information of the other party, other than by or to its
employees or agents who must have access to such Confidential Information to
perform such party's obligations hereunder and who agree to comply with this
section.
12. Term & Termination: This Agreement commences on the Effective Date and
continues for two years (the "Term") unless either party terminates it upon
ninety (90) days advance written notice to the other party. Either party may
terminate this Agreement at any time if the other party is in material
breach of its obligations hereunder and such breach is not cured within
fifteen (15) days advance written notice thereof. In addition, upon
termination or expiration of this Agreement for any reason whatsoever,
Licensee shall immediately cease using the Cooliris 3D Embed Wall and the
Cooliris Brand Features and each party shall return or destroy all
Confidential Information of the other party, as directed by the other party.
The terms and provisions of this Agreement that by their nature or terms
would survive the termination or expiration of this Agreement, including,
but not limited to, Sections 6, 8, 9, 10, 11, 12 and 13 shall so survive the
termination or expiration of this Agreement.
13. General: This Agreement sets forth the entire understanding and
agreement between the parties and, except as otherwise expressly provided
herein, may only be amended by a writing signed by both parties. The parties
are and shall remain independent contractors and nothing in this Agreement
shall be deemed to create an agency, partnership or joint venture between
the parties. This Agreement shall be governed exclusively by the laws of the
State of California (excluding California's choice of law rules) and
applicable federal U.S. laws. Each party will be excused from performance
for any period during which, and to the extent that, it is prevented from
performing any obligation or service, in whole or in part, as a result of
causes beyond its reasonable control, including acts of God, strikes, riots,
acts of war, epidemics, and communication line or power failures. The party
seeking to excuse its performance pursuant to this section shall (a) notify
the other party of the occurrence of the cause of the delay or failure and
its likely duration as soon as reasonably possible; (b) shall take all
reasonable steps to mitigate the effect thereof on the other party; and (c)
shall promptly provide the other party notice of cessation of the cause of
the delay or failure. Subject to the terms of this Section 13, Cooliris'
obligation to pay amounts otherwise due and payable under this Agreement may
be delayed but shall not be excused as a result of a force majeure event.
Without limiting the foregoing, the failure of either party to enforce at
any time any of the provisions of this Agreement, or the failure to require
at any time performance by the other party of any of the provisions of this
Agreement, shall in no way be construed to be a present or future waiver of
such provisions, nor in any way affect the ability of either party to
enforce each and every such provision thereafter. If for any reason a court
of competent jurisdiction finds any provision of this Agreement, or portion
thereof, to be unenforceable, that provision will be enforced to the maximum
extent permissible so as to put into effect the intent of the parties, and
the remainder of this Agreement will continue in full force and effect. All
notices provided under this Agreement shall be in writing and sent by
registered or certified mail, postage prepaid, receipt requested or by
confirmed fax or hand delivery to the address set forth in the lead
paragraph of this Agreement and to the attention of the signatory of the
applicable party. Either party may change its address or its person to
receive notice by providing written notice of such change to the other party
in accordance with this section. Notices will be deemed effective upon
delivery if by a confirmed fax or hand delivery or upon three business days
after mailing. Neither party may assign or delegate any of its rights or
obligations under the Agreement without the prior written consent of the
other party, which consent will not be unreasonably withheld or delayed;
provided, however, that such consent is not required if a party, upon
written notice to the other party, assigns the Agreement to an affiliate of
or a successor to such party, including, without limitation, an assignment
to an unrelated entity in connection with a merger or acquisition with, or a
sale of all or substantially all of its to, such other unrelated entity. The
Agreement will be binding upon and inure to the benefit of the parties and
their respective successors and permitted assigns. This Agreement signed by
the parties may be executed in counterparts, each of which shall be deemed
to be original, and all of which together shall constitute a single
instrument. Any signed copy of the Agreement copied or reproduced and
transmitted (in counterparts or otherwise) via photocopy, facsimile or other
process that accurately transmits the original document, will be considered
an original document and be sufficient to bind the parties to its terms.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives.
PUBLISHER CONTENT POLICY
Cooliris reserves the right to disable ad serving to a
Licensee site and/or disable access to advertising at any
time in the event that Licensee fails to adhere to the
policies set forth herein.
- Content Guidelines: Licensee may not place Cooliris
advertising code on pages containing (A) content that (i)
contains nudity or pornographic material of any kind; (ii)
is offensive, including, but not limited to, expressions of
bigotry, prejudice, racism, hatred, or profanity; (iii)
exploits children under eighteen (18) years of age; or (iv)
promotes or provides instructional information about illegal
activities or promotes physical harm, violence or injury
against any group or individual; or (B) other similar
content including, but not limited to, hacking/cracking
content, gambling or casino-related content, illicit drugs
and drug paraphernalia content, sales of beer or hard
alcohol, sales of tobacco or tobacco-related products, sales
of prescription drugs, sales of weapons or ammunition (e.g.
firearms, firearm components, fighting knives, stun guns),
sales of products that are replicas or imitations of
designer goods, sales or distribution of coursework or
student essays, content regarding programs which compensate
users for clicking ads or offers, performing searches,
surfing websites or reading emails, or any other content
that infringes on the legal rights of others.
- Copyrighted Material: Licensee shall be solely
responsible for all third party content, including but not
limited to, adherence to any copyrights, confidentiality
restrictions or terms and conditions related to such
content.