XxxxxXxxx.xxx, Inc.
Co-Branded Marketing Agreement
Thus Agreement is made March 8 1999 (the "Effective Date") between Picture Works
a California corporation, having a place of business at __________, Danville, CA
("Partner"), and XxxxxXxxx.xxx, Inc., a California corporation having a place of
business at 000 Xxxxxxx Xxxx Xxxxx Xxxxx#000, Xxxxxxxx, Xxxxxxxxxx 00000
("XxxxxXxxx.xxx").
1.0 INTENT: XxxxxXxxx.xxx offers certain proprietary software and
-------
services for creation, maintenance and storage of on-line digital photo albums
via its XxxxxXxxx.xxx web site (the "Service").
XxxxxXxxx.xxx and Partner desire to provide the Service to Partner's customers
through:
1.1 The creation of a Co-Branded XxxxxXxxx.xxx entrance page on
XxxxxXxxx.xxx's server (having the URL address
xxxx://xxx.xxxxxxxxx.xxx/Xxxxxxxxxxxx ("Co-Branded XxxxxXxxx.xxx") to enable
Partner's visitors and customers ("Visitors") to register to use services or
view photo albums from XxxxxXxxx.xxx.
1.2 The creation of a link in Partners Software products and a link on
Partner's web page that will promote and direct a customer to the Co-branded
page.
2.0 LINK: XxxxxXxxx.xxx. will cooperate to promptly develop (a) a
-----
specially co-branded XxxxxXxxx.xxx page using both XxxxxXxxx.xxx's and Partner's
names and logos (the "Co-Branded Pages"); and (b) links from Partner's Site to
the Co-Branded Pages (the "Links").
3.0 USAGE: Partner's customers will be offered a one year free Premium
------
PhotoLoft account.
5.0 PROMOTION BY XXXXXXXXX.XXX: Every image posted by Partner's customer
-----------------------------
will be identified as a Partner's customer image. Every time that that image is
viewed by any PhotoLoft viewer, the logo or link of the Partner will also be on
display to the PhotoLoft viewer. Partners logo and link may not be displayed on
any private label or customized site built or run specifically for a third
party.
7.0 CO-PROMOTION: Partner will mention and reference the relationship
-------------
with XxxxxXxxx.xxx in Partner's launch press release. XxxxxXxxx.xxx may put out
a separate press release announcing the relationship between the two companies.
Partner will cooperate with PhotoLoft in developing this release.
8.0 FURTHER CUSTOMIZATION: XxxxxXxxx.xxx has complete discretion on
-----------------------
making any additional page modifications to the Co-Branded XxxxxXxxx.xxx after
the initial design.
9.0 TRADEMARKS:
-----------
XXXXXXXXX.XXX MARKS: XxxxxXxxx.xxx hereby grants Partner a nonexclusive
---------------------
limited license to use, reproduce and display the XxxxxXxxx.xxx trademarks and
----
logos designated by XxxxxXxxx.xxx on Partner's Web Site during the term of this
Agreement in accordance with any guidelines that XxxxxXxxx.xxx may provide to
Partner from time to time. XxxxxXxxx.xxx will supply Partner with electronic
versions of the XxxxxXxxx.xxx trademarks and logos for Partner's use. All
representations of the XxxxxXxxx.xxx trademarks and logos that Partner uses will
be exact copies of those provided by XxxxxXxxx.xxx, or shall First be submitted
to XxxxxXxxx.xxx for approval.
PARTNER MARKS: Partner hereby grants XxxxxXxxx.xxx a nonexclusive limited
---------------
license to use, reproduce and display Partner's trademarks and logos designated
by Partner on the Co-Branded Pages during the term of this Agreement in
accordance with any guidelines that Partner may provide to XxxxxXxxx.xxx from
time to time. Partner will supply XxxxxXxxx.xxx with electronic versions of the
Partner trademarks and logos for XxxxxXxxx.xxx's use. All representations of the
Partner's trademarks and logos that XxxxxXxxx.xxx intends to use will be exact
copies of those
Initials of XxxxxXxxx.xxx Initials of Partner
provided by Partner, or shall first be submitted to Partner for approval.
10.0 PROPRIETARY RIGHTS: Except as expressly provided herein, each party
-------------------
shall own all right, title and interest in its respective web site and all
portions thereof, including without limitation all intellectual property rights
therein. Except as specifically and clearly set forth in this Agreement,
neither party shall be granted any right or license to any of the other party's
property, including intellectual property in its respective software, web site
or any portions thereof
11.0 TERM: This Agreement shall become effective on the Effective Date
-----
and shall remain in effect for a one (1) year term which shall renew
automatically for successive one-year terms, unless terminated by written notice
by either party @ (30) days prior to the end of any one-year term. In the event
of a breach, the non-breaching party may serve written notice of breach on the
breaching party. If such breach is not cured within fourteen (14) days, the
non-breaching party may immediately terminate this Agreement.
12.0 ASSIGNMENT: This Agreement and any rights under this Agreement may
----------
be transferred, assigned or delegated by either party without the prior written
consent of the other party.
13.0 INDEPENDENT CONTRACTOR: With respect to all matters relating to
------------------------
this Agreement each party is deemed to be an independent contractor. Neither
party shall represent itself as an employee, servant, agent or legal
representative of the other party for any purposes whatsoever.
14.0 GOVERNING LAW/DISPUTE RESOLUTION: The parties intend this Agreement to
--------------------------------
be construed in
accordance with the laws of the State of California. Partner and XxxxxXxxx.xxx
agree that they will attempt to settle any claim or controversy arising out of
this Agreement through consultation and negotiation in the spirit of mutual
friendship and cooperation. Any dispute which the parties cannot resolve
between themselves in good faith within six (6) months of the date of the
initial demand by either party for such resolution will be submitted for final
determination by one (1) mutually agreed arbitrator within the State of
California.
15.0 Limitation of Liability: Neither party shall be liable to the other
-------------------------
for any lost profit or other commercial damage, including, without limitation,
indirect, special, consequential, incidental or punitive damages of any nature
arising out of this Agreement.
16.0 ENTIRE AGREEMENT: This Agreement contains the entire agreement of the
------------------
parties and supersedes all previous understandings and agreements between the
parties relating to the subject matter hereof.
17.0 NOTICES: Any notice or request required to be given under or in
--------
connection with this Agreement shall be in writing and given by facsimile or
postpaid registered or certified mail return receipt requested. The date of
receipt shall be deemed die date on which such notice or request has been given.
Until such time as written notice of a change of address is given by either
party to the other, any such notice or request shall be deemed sufficiently
addressed when directed to the addresses of the parties set out in the first
paragraph of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agree Effective Date:
BY:
Name: Xxxx Xxxxxxxx Name:
--------------
Date: 3/22/99 Date:
Title: President Title:
XxxxxXxxx.xxx, Inc.
Initials of XxxxxXxxx.xxx Initials of Partner
