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.