▇▇▇▇▇▇▇▇▇.▇▇▇, INC.
CO-BRANDED MARKETING AGREEMENT
This Agreement is made this ____5/3/99_________________ (the "Effective Date")
between Tribal Voice, a California corporation, having a place of business at
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Partner"), and ▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.,
a California corporation having a place of business at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇#▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("▇▇▇▇▇▇▇▇▇.▇▇▇").
1.0 INTENT: ▇▇▇▇▇▇▇▇▇.▇▇▇ offers certain proprietary software and services
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for creation, maintenance and storage of on-line digital photo albums via its
▇▇▇▇▇▇▇▇▇.▇▇▇ web site (the "Service"). ▇▇▇▇▇▇▇▇▇.▇▇▇ and Tribal Voice, Inc.
desire to provide the Service to Partner's customers through the creation of a
Co-Branded ▇▇▇▇▇▇▇▇▇.▇▇▇ site on ▇▇▇▇▇▇▇▇▇.▇▇▇'s server (having the URL address
▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇▇ ("Co-Branded ▇▇▇▇▇▇▇▇▇.▇▇▇") to enable
Partner's visitors and customers ("Visitors") to register to use services,
store, share and view photo albums from ▇▇▇▇▇▇▇▇▇.▇▇▇.
2.0 LINK: ▇▇▇▇▇▇▇▇▇.▇▇▇ will cooperate to promptly develop (a) a specially
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co-branded ▇▇▇▇▇▇▇▇▇.▇▇▇ page using both ▇▇▇▇▇▇▇▇▇.▇▇▇'s and Tribal Voice
Pow-Wow names and logos (the "Co-Branded Pages"); (b) links from Partner's Site
to the Co-Branded Pages (the "Links"); and ( c ) placement of the Tribal Voice
link and logo on the Digital Imaging and Resource Page within the PhotoLoft.
During the term of this Agreement, the Partner will make commercially reasonable
efforts to place and maintain links to the PhotoLoft service from prominent
places on the Partner web site. A link from the Partner home page to the
PhotoLoft service will be at the discretion of Partner.
2.1 ▇▇▇▇▇▇▇▇▇.▇▇▇ will provide a notice on each co-branded page disclaiming
responsibility of both PhotoLoft and Partner for the content of that page. The
disclaimer shall be mutually agreed to by both parties.
3.0 USAGE: Partner's customers will be offered a one year free Premium
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PhotoLoft account. Partner's users will be identified by entering the site
through the co-branded page.
4.0 PROMOTION BY ▇▇▇▇▇▇▇▇▇.▇▇▇: Every image posted by PhotoLoft's customer
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will be identified as a Partner's customer. Every time that that image is
viewed by any PhotoLoft viewer, the logo of Tribal Voice, Inc. will also be on
display to the PhotoLoft viewer.
5.0 PROMOTION BY PARTNER: Tribal Voice, Inc. will participate in the
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announcement and co-promotion of the partnership on-line, and with press
releases, and by furnishing information to its licensees and clients. Usual and
customary types of promotional activities outside the sites may be, but are not
limited to: special rewards and loyalty points awards programs with sponsors,
tradeshow and convention appearance coordination and cooperation, print,
broadcast and other media advertising, as appropriate and at the discretion of
Tribal Voice. Examples of the type of promotion that Tribal Voice may do are:
5.1 Write and post a feature article on the PhotoLoft capability and post it
on the Partner Home Page.
5.2 Include PhotoLoft in email newsletters to the Partner customer base.
5.3 Highlight PhotoLoft in the Partner Community Spotlight feature.
6.0 CO-PROMOTION: ▇▇▇▇▇▇▇▇▇.▇▇▇ and Partner will issue independent press
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releases announcing the relationship. Partner and ▇▇▇▇▇▇▇▇▇.▇▇▇ will each
review and approve the others' press releases.
7.0 FURTHER CUSTOMIZATION: ▇▇▇▇▇▇▇▇▇.▇▇▇ has complete discretion on making
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any additional page modifications to the PhotoLoft portion of the Co-Branded web
site after the initial design provided such changes do not compromise or demean
Tribal Voice's brand name, marketing image and logo. Tribal Voice shall not
make unreasonable requests that may interfere with the operation of the site.
Initials of ▇▇▇▇▇▇▇▇▇.▇▇▇ _____ Initials of Tribal Voice, Inc. _____ 1
7.1 Tribal Voice will provide input regarding the contents of the login
page. Tribal Voice and ▇▇▇▇▇▇▇▇▇.▇▇▇ shall mutually agree and approve the
contents of the login page.
7.2 It is agreed that in the event of a major logo change by Tribal Voice,
Inc., ▇▇▇▇▇▇▇▇▇.▇▇▇ will make commercially reasonable efforts to coordinate such
a change, provided that Tribal Voice agrees to a reciprocal arrangement
concerning the ▇▇▇▇▇▇▇▇▇.▇▇▇ Logo and Tribal Voice hosted indicia and content.
8.0 TRADEMARKS:
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▇▇▇▇▇▇▇▇▇.▇▇▇ MARKS: ▇▇▇▇▇▇▇▇▇.▇▇▇ hereby grants Tribal Voice, Inc. a
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nonexclusive limited license to use, reproduce and display the ▇▇▇▇▇▇▇▇▇.▇▇▇
trademarks and logos designated by ▇▇▇▇▇▇▇▇▇.▇▇▇ on Tribal Voice, Inc.'s Web
Site during the term of this Agreement in accordance with any guidelines that
▇▇▇▇▇▇▇▇▇.▇▇▇ may provide to Tribal Voice, Inc. from time to time.
▇▇▇▇▇▇▇▇▇.▇▇▇ will supply Tribal Voice, Inc. with electronic versions of the
▇▇▇▇▇▇▇▇▇.▇▇▇ trademarks and logos for Tribal Voice, Inc.'s use. All
representations of the ▇▇▇▇▇▇▇▇▇.▇▇▇ trademarks and logos that Tribal Voice,
Inc. uses will be exact copies of those provided by ▇▇▇▇▇▇▇▇▇.▇▇▇, or shall
first be submitted to ▇▇▇▇▇▇▇▇▇.▇▇▇ for approval.
TRIBAL VOICE, INC. MARKS: Tribal Voice, Inc. hereby grants ▇▇▇▇▇▇▇▇▇.▇▇▇ a
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nonexclusive limited license to use, reproduce and display Tribal Voice, Inc.'s
trademarks and logos designated by Tribal Voice, Inc. on the Co-Branded Pages
during the term of this Agreement in accordance with any guidelines that Tribal
Voice, Inc. may provide to ▇▇▇▇▇▇▇▇▇.▇▇▇ from time to time. Tribal Voice, Inc.
will supply ▇▇▇▇▇▇▇▇▇.▇▇▇ with electronic versions of the Tribal Voice, Inc.
trademarks and logos for ▇▇▇▇▇▇▇▇▇.▇▇▇'s use. All representations of the Tribal
Voice, Inc.'s trademarks and logos that ▇▇▇▇▇▇▇▇▇.▇▇▇ intends to use will be
exact copies of those provided by Tribal Voice, Inc., or shall first be
submitted to Tribal Voice, Inc. for approval.
9.0 PROPRIETARY RIGHTS: Except as expressly provided herein, each party
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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
10.0 TERM: This Agreement shall become effective on the Effective Date and
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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 thirty (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.
11.0 TERMINATION FOR CONVENIENCE: Either party may terminate this
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agreement, after the initial 90 days of the agreement, upon 60 days written
notice to the other party. If Tribal Voice terminates the Agreement, then
Tribal Voice will inform its users that they may continue to use the Service,
and PhotoLoft will have no obligation to continue financial payments to the
Tribal Voice. If PhotoLoft terminates the agreement, then PhotoLoft and Tribal
voice will inform users of a replacement service (if any) and continue with the
financial terms of the agreement for a period of 2 years.
12.0 EFFECTS OF TERMINATION: Upon termination of this Agreement
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▇▇▇▇▇▇▇▇▇.▇▇▇ will remove all branding information and revenue sharing will
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cease asset forth in 11.0 above. ▇▇▇▇▇▇▇▇▇.▇▇▇ will continue to support Partner
members with the same service and support as PhotoLoft supports its own members.
13.0 NON ASSIGNMENT: Neither this Agreement nor any rights under this
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Agreement may be transferred, assigned or delegated by either party without the
prior written consent of the other party. , In the event the other party has
been acquired or undergone a change of control, such consent shall not be
unreasonably withheld.
Initials of ▇▇▇▇▇▇▇▇▇.▇▇▇ _____ Initials of Tribal Voice, Inc. _____ 2
14.0 INDEPENDENT CONTRACTOR: With respect to all matters relating to this
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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. The term "Partner" is descriptive
and not indicative of legal partnership, joint venture or co-ownership of any
assets or interests.
15.0 GOVERNING LAW/DISPUTE RESOLUTION: The parties intend this Agreement to
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be construed in accordance with the laws of the State of California. Tribal
Voice, Inc.and ▇▇▇▇▇▇▇▇▇.▇▇▇ 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 may be submitted to the
courts of the State of California.
16.0 LIMITATION OF LIABILITY: NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR
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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.
17.0 INDEMNIFICATION BY ▇▇▇▇▇▇▇▇▇.▇▇▇: ▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. shall indemnify,
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defend, save and hold Partner harmless from any and all liabilities, including
attorney's fees and costs, arising out of claims that the ▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.
software and documentation, and the other intellectual property developed or
provided by ▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. hereunder infringe the patent, trademark,
copyright, trade secret or other proprietary or intellectual property rights of
others. Partner shall promptly notify ▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. in writing if
▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. becomes subject to any such claims. ▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.
shall assume defense of such claim at its own expense and with counsel of its
own choosing.
18.0 MEMBER DATA: During the term of this Agreement members who enter via
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the Partner Co-Brand area shall provide only the necessary user information for
registration to access the Services being provided as if entering via the
▇▇▇▇▇▇▇▇▇.▇▇▇ site. No prospective user shall be allowed to register to access
the service unless the user agrees to provide such information during the
registration process and agree to the terms and conditions as specified in the
Member Agreement
19.0 REVENUE SHARING: ▇▇▇▇▇▇▇▇▇.▇▇▇ agrees to share net advertising revenues
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on page views originated by Partner community members. All advertising revenue
sharing is based on net income received by ▇▇▇▇▇▇▇▇▇.▇▇▇ after allowances are
made for commissions, agency fees, and any other fees. ▇▇▇▇▇▇▇▇▇.▇▇▇ will pay
advertising revenue sharing within 30 days after the end of the calendar
quarter. The percentage of revenue sharing that Partner will receive is based
on page views according to the following schedule:
PAGE VIEWS PER CALENDAR MONTH PERCENTAGE REVENUE SHARE
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0 to 250,000 20.0%
250,001 to 500,000 30.0%
500,001 and above 40.0%
19.1 ▇▇▇▇▇▇▇▇▇.▇▇▇ will make commercially reasonable efforts to insure that
the commissions, agency fees, and any other fees do not exceed 40% or gross page
view advertising revenue.
20.0 ENTIRE AGREEMENT: This Agreement contains the entire agreement of the
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parties and supersedes all previous understandings and agreements between the
parties relating to the subject matter hereof.
21.0 NOTICES: Any notice or request required to be given under or in
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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 the 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.
Initials of ▇▇▇▇▇▇▇▇▇.▇▇▇ _____ Initials of Tribal Voice, Inc. _____ 3
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in as of the
Effective Date:
By:____________________ By:_____________________
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇ Name:
Date: 5/7/99 Date: 5/3/99
Title: President Title: V.P Marketing
▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.
Initials of ▇▇▇▇▇▇▇▇▇.▇▇▇ _____ Initials of Tribal Voice, Inc. _____ 4