WOMEN AND MOTHERS MEDIA, LLC Last Updated: January 28, 2009
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AFFILIATE AND ADVERTISING EXCHANGE AGREEMENT
PLEASE READ VERY CAREFULLY THESE TERMS AND CONDITIONS BEFORE REGISTERING FOR THE WOMEN AND MOTHERS MEDIA PUBLISHERS NETWORK PROGRAM.
PARTICIPATION IN THE WOMEN AND MOTHERS MEDIA AFFILIATE PROGRAM INDICATES THAT YOU ACCEPT THESE TERMS AND CONDITIONS. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS, PLEASE DO NOT REGISTER NOR SUBMIT SITE APPROVAL OR PARTICIPATE IN THE WOMEN AND MOTHERS MEDIA NETWORK PROGRAM.
This agreement (“Agreement”) by and between Affiliate and Women & Mothers Media, LLC. (“W & M Media”, “Women & Mothers”, “Women and Mothers”, “Women & Mothers Network”, “Women & Mothers Publishers”) (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.
Engagement.
Women & Mothers owns and operates an interactive consumer platform that delivers news and advice on fashion, beauty, shopping, sex, relationships, health, lifestyle and family via content, services, multimedia and
products, all of which are available through its the website,
http://www.womenandmothers.com/ and its related servers, feeds and other affiliated websites.
Affiliate publisher authors, updates, brands and oversees websites (“Affiliate Websites”), with a focus on fashion, beauty, shopping, sex, relationships, health, lifestyle and family presenting content, services,
multimedia and products of interest to Women & Mothers’ current and future, users.
Women & Mothers and Affiliate have entered this Agreement with the common goal of growing the audiences of Affiliate Websites and growing Women & Mothers’ overall users.
The parties agree to collaborate to deliver the following services, as specified below and in the Attachments hereto.
Collective Venture.
Affiliate understands that this is a collective venture, Women & Mothers Publishers Network provides Affiliates with opportunities to drive more traffic through site promotion and make extra revenues through a collective effort for the reasons of attracting “network” advertisers and direct affiliate advertisers.
“Women & Mothers” does NOT guarantee increase site traffic, sales, nor financial gains.
Ad Serving.
Affiliate ad spaces will be served by adroll.com and any other third-party that “Women & Mothers” deem fit. Women & Mothers shall select and serve marketing messages from third parties and from Women & Mothers
(collectively, the “Women & Mothers Network”) in the form of banners, text links, video streams, pre-rolls, headline links, sponsorships, buttons and other such creative units determined by Women & Mothers 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 of this Agreement.
a. Advertising shall include all or some portion of the following items but shall not be limited to:
i. Banners, display, text, or video, in the form of 728x90 pixels, 300x250 pixels, 160x 600 pixels and other such units requested by advertisers (“Banners”);
ii. A content module with up to five headline links to Women & Mothers Media network content or promotions;
iii. Messaging provided by Women & Mothers that describes the site as a Women & Mothers
Media Network affiliate (“Women & Mothers Network Branding”); and Both Affiliate and Women & Mothers specifically agree to take the following actions in order to execute the Advertising:
Your Responsibility….Affiliate agrees to:
i. Display Advertising on pages of the Affiliate Websites according to the terms of this Agreement;
ii. Post Women & Mothers Network’ contact information in the advertising section of the Affiliate Website. (Optional)
iii. Make third-party advertising provided to Affiliate by Women & Mothers one of the most visible advertising on the Affiliate Websites and appear on the Affiliate Websites’ according to the ad placement guide;
iv. Implement all tags, formatting and code necessary in order for Women & Mothers to exercise its rights under this Agreement;
v. Place Women & Mothers Network Branding and contact information on the Property, in a form and manner as reasonably determined by Affiliate and Women & Mothers.
vi. Provide Women & Mothers with a default ad tag or image for unsold inventory to place in Women & Mothers’ ad serving system.
vii. Not place Advertising in any photo gallery sections, forums or other user generated content areas, on any blank pages or stack Advertising so that more than 2 ads are next to each other;
vii. Not place Advertising on any urls not approved by Women & Mothers in this Agreement, not to alter, copy, modify, take, sell, re-use, in any manner any Advertising, not use auto spamming browsers, forced clicks or in any way induce persons to click on Advertising based upon incentives not intended to be associated with the advertisement.
Our Responsibility…Women & Mothers agrees to:
i. Identify and integrate the Affiliate as a member of the Women & Mothers Network
ii. Include the Affiliate Websites pages in the sell of advertisement space.
iii. Share such revenue received by Women & Mothers from advertisers for Advertising placed on the Affiliate Websites by Women & Mothers with Affiliate consistent with the provisions of this Agreement.
iv. Rotate Affiliate ad and promote Affiliate site within the selected channel of the Women & Mothers Network.
Affiliate Publisher Editorial Services.
Publisher Affiliate shall author, update, brand and oversee (collectively, “Publish”) the Affiliate Websites, as described below in this Section of the Agreement (“Editorial Services”). Both Affiliate and Women & Mothers specifically agree to take the following actions in order to execute the terms of the Editorial Services
provisions in this Agreement:
a. Affiliate agrees to:
i. Publish the Affiliate Websites and/or blogs in a way that adheres at all times to the Women & Mothers Editorial Standards for Linked Affiliates set forth in Attachment A (“Editorial Standards”) and regularly monitor the Affiliate Websites, including all parts and aspects of the Affiliate Websites, for compliance with the Editorial Standards;
ii. Include the “Ads by Women & Mothers” Branding at the top of every Women & Mothers Advertising unit, or as otherwise agreed to by both parties.
iii. Allow Women & Mothers to advertise, promote and publicize Affiliate publisher and Affiliate Websites availability on
http://www.womenandmothers.com/;
iv. Allow Women & Mothers to link to the Affiliate Websites from all websites and affiliate publishers owned and/or managed in any way by Women & Mothers;
v. Allow Women & Mothers to modify the Advertising, which appear on the Affiliate Websites, as described above. However, Women & Mothers may not otherwise change the content or meaning of the Affiliate Websites, except, however, if the Affiliate Websites do not meet the Editorial Standards or other requirements for the Affiliate Websites set forth in this Agreement, Women & Mothers may remove the Affiliate from WomenandMothers.com and the Advertising from the Affiliate Websites without providing Affiliate publisher with prior notice; provided that Women & Mothers promptly notifies Affiliate of any such removal by email and reinstates the site upon the site’s cure of such failure;
vi. Take commercially reasonably measures to maintain the web server supporting the Affiliate Websites in order to ensure that the Affiliate Websites are available twenty-four (24) hours a day, every day of the year.
Affiliate shall notify Women & Mothers as soon as Affiliate publisher becomes aware that its web server is not operating and as soon as it becomes available again;
vii. Not include in its Affiliate Websites or its linkages any software, tools or text that could cause Women & Mothers’ or its users’ websites, systems and networks harm from reduced system performance, system unavailability, data loss, or other damage; and
vii. Maintain a privacy statement that complies with all applicable laws, rules and regulations, and (ii) provide a brief explanation within the privacy statement explaining that Affiliate allows third parties to serve creatives within its Website(s), at all times during the term of this Agreement.
b. Women & Mothers agrees that:
i.Affiliate publisher shall have control over the content and “look and feel” of the Affiliate Websites, subject to the terms of this Agreement;
ii. Women & Mothers shall advertise, promote and publicize Affiliate publisher and Affiliate Websites availability on Women & Mothers.com in areas, selected in Women & Mothers’s sole discretion, that may include but shall not be limited to:
1. Placement in the Women & Mothers Network channel or other such area on WomenandMothers.com;
2. Placement in the Women & Mothers Network directory on WomenandMothers.com; or
3. Contextual placement throughout WomenandMothers.com where appropriate and
relevant to a particular page, product, or story on WomenandMothers.com;
iii. Other than modifying the Advertising as explicitly described above, Women & Mothers may not otherwise change the content or meaning of the Affiliate Websites, except, however, if the Affiliate does not meet the Editorial Standards or other requirements for the Affiliate set forth in this Agreement, Women & Mothers may remove the Affiliate from Women & Mothers’ website and the Advertising from the Affiliate Websites without providing Affiliate publisher with prior notice; provided that Women & Mothers promptly notifies Affiliate of any such removal by email and reinstates the site upon the site’s cure of such failure.
Compensation & Revenue Share.
Net Advertising Revenue received by Women & Mothers from third-party advertisers for Advertising placed on the pages of the Affiliate Website(s) shall be shared by Women & Mothers and Affiliate on the following basis:
Fifty percent (50%) to Women & Mothers and fifty percent (50%) to Affiliate. “Net Advertising Revenue” shall be defined as gross revenues, less agency fees, charge backs, bad debt, distribution fees, brand research, refunds and other such offsets. When no Banners from third-party advertisers are placed in the Advertising unit on the Affiliate Website(s), Women & Mothers shall at its option without any compensation, place non-revenue “house” banner ads which includes but is not limited to womenandmothers.com banners, “publisher affiliate” ads, “shop affiliate” ads, and/or other bonus (non-revenue generating) third-party ads in the Advertising unit until new third-party ads become available.
Affiliate understands that in order to provide “affordable” advertisement opportunities for affiliate publishers and shop affiliates, no compensation will be given for “unsold” ad inventory purchase by affiliate publishers or affiliates with our Shop Affiliate Program.
Shop Affiliate Program is defined as “small” women-owned, women-targeted online stores with site traffic less than 100,000 monthly users, who are given a special rate for access to “unsold” ad inventory within the network.
Any “private” advertising space that is sold outside of the “Women & Mothers” and with the individual efforts of Affiliate, will remain 100% profit of Affiliates.
Payment.
Publisher Affiliate a monthly payment based on revenue earned (“Payment Amount”). We currently pay out through PayPal. The Payment Amount earned on a monthly basis and is paid thirty (30) days following the last day of the calendar month in which the revenue was collected.
Your account needs to accumulate the minimum amount of $50.00. This means, if you sign up on January 9th and accumulate a minimum of $50.00 by January 30th, you will receive your payment at the end of February. And check payments are sent soon after.
To ensure a timely & hassle free delivery, we suggest that you double check your Paypal email address (or your residential mailing address for checks) in your profile.
Credits & Additional ad purchasing.
Network Affiliate members will receive a pre-determined amount of credits to apply toward banner impressions in the “selected” network channel. Affiliates may earn additional performance based-monthly credits. “Inventory” banner impressions may also be purchased in network at a special % discount. In addition affiliate may opt to purchase additional “unsold” inventory impressions at a special “Publisher Affiliate” rate, however amount of available impression are based only upon availability.
Copyrights, Linking and Licenses.
Affiliate grants to Women & Mothers:
a. A worldwide, transferable, royalty-free license to link to the Affiliate Websites and to serve Advertising into the Affiliate Websites for the permitted uses set forth in this Agreement; and
b. The right to use Affiliate publisher’s name, likeness, photograph and biographical material in connection with all permitted uses set forth in this Agreement. The Affiliate publisher shall be credited at all times as the
publisher of the Affiliate Websites in connection with all permitted uses by Women & Mothers.
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.
Mutual Representations and Warranties.
Each party represents and warrants to the other party that:
a. There are no agreements or arrangements, written or oral that would be breached upon the respective party’s execution or performance of this Agreement, that would restrict, interfere or conflict with the respective party’s obligations under this Agreement, or that would diminish the other party’s rights granted under this Agreement;
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.
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.
Duration & Termination.
This Agreement will commence on the date above and shall continue for a term of six (6) months (“Term”), this initial Term will be automatically renewed thereafter in one (1) year intervals provided that either party does not give written termination notice within 30 days from the end of the term.
Upon an Event of Default, Women & Mothers 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 Women & Mothers for any reason, the following shall occur:
a. All copyrights, linking and licenses granted in this Agreement cease;
b. Women & Mothers and Affiliate shall promptly remove all Advertising and the Women & Mothers
Network Branding from the Affiliate Websites
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.
Limitation of Liability.
Except for a party’s obligations under the indemnification provisions set forth in 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.
Entire Agreement, Amendment.
This Agreement represents the entire agreement between Affiliate and Women & Mothers 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.
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.
Notices.
All notices or other communications required under or regarding this Agreement shall be in writing and shall be deemed sufficient when delivered personally or sent by electronic mail or facsimile (in each case, with prompt confirmation of receipt) or upon deposit in the U.S. mail, as certified or registered first class mail, with postage prepaid, and addressed, if to Women & Mothers at its principal place of business set forth in the preamble of this Agreement and if to Affiliate at Affiliate’s place of business set forth in the signature page of this Agreement,
unless, in either case, written notice of another address shall have been provided to the other party in the manner provided for in this Section. If mailed, any such notice will be considered to have been given one business day after it was mailed, as evidenced by the postmark.
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.
No Joint Venture.
This is in no way a joint venture. No elements in this Agreement may be construed as creating a joint venture,
partnership or employment relationship between the parties hereto, nor will either party have the right, power or authority to create any obligation or duty, express or implied, on behalf of the other.
Governing Law.
This Agreement shall be governed by the laws of the state of Colorado, without regard to the choice of law provisions thereof, which state shall have jurisdiction of the subject matter hereof.
1. Successors and Assigns.
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.
Women & Mothers Media, LLC.:
AFFILIATE:
Name:
Title:
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.
ATTACHMENTS.
Editorial Standard.
Women & Mothers Editorial Standards for Publisher Affiliates and Women & Mothers.com Websites
These Editorial Standards exist to help the Affiliate and Women & Mothers achieve their goals of growing the audience for the Affiliate Websites, growing Women & Mothers’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.
The Affiliate Websites, including all information, text, images, photographs, graphics, e-mail addresses, web pages, comments and reviews, discussion board postings and other materials contained in or linked to the Affiliate Websites, may not contain, publish, link to, sell or otherwise distribute any “Unacceptable
Content.” Unacceptable Content is defined as content that:
a. Is lewd, profane, obscene, or indecent, including any content that is violent or pornographic or that contains nudity, explicit violent or sexual material, or depictions of violent or sexual acts;
b. Is harassing, threatening, abusive, inflammatory or otherwise objectionable, including content used to harass, stalk or threaten a person;
c. Is unlawful or that could facilitate the violation of any applicable law, regulation or governmental policy;
d. Offers or disseminates any fraudulent goods, services, schemes or promotions, including any make-money-fast schemes, chain letters, or pyramid schemes;
e. Is libelous, defamatory, knowingly false or misrepresents another person;
f. Infringes upon the intellectual property rights of any third party, including the copyrights, trademarks, trade names, trade secrets or patents of such third party;
g. Is harmful to Women & Mothers’ or any other party’s systems and networks, including any transmissions which may damage, interfere with, surreptitiously intercept, or expropriate any system, program, data or personal information;
h. Violates any obligation of confidentiality;
i. Violates the privacy, publicity, moral or any other right of any third
party; and
j. Consists of any other content that Women & Mothers in its sole discretion deems to
be Unacceptable Content.
If Affiliate permits user comments and trackbacks on the Affiliate Websites,
Affiliate shall regularly monitor these comments and remove any that include
and/or link to Unacceptable Content.
Editorial Consistency.
The Affiliate and the Authors must also:
a. Ensure that all content contained in the Affiliate Websites is original material created by Affiliate, unless proper attribution is given to a third party. A ready definition of proper attribution and fair use is set forth in The
Electronic Frontier Foundation’s “Legal Guide for Blogger’s” at http://www.eff.org/bloggers/lg/;
b. Ensure that all opinions and statements are representative of the Affiliate’s honest views; and
c. Continue the general topic that is the focus of the Affiliate Websites or provide Women & Mothers with a thirty (30) days prior written notice if the focus of the Affiliate Websites is substantially changing. Women & Mothers will undertake a review of the Affiliate’s new direction at that time to determine suitability for Women & Mothers.
Women & Mothers, in its sole discretion, will determine what constitutes “Unacceptable Content” under these Editorial Standards. Women & Mothers is under no obligation to monitor the Affiliate for compliance with these Editorial Standards. Women & Mothers may change the Editorial Standards at any time by providing Affiliate with ten (10) business days prior written notice. Women & Mothers reserves the right to remove the Affiliate, without
providing the Affiliate with prior notice, from www.womenandmothers.com at any point if the Affiliate posted uses Unacceptable Content or otherwise does not meet the requirements for the Affiliate set forth in this Agreement. Women & Mothers reserves the right to terminate this Agreement without prior notice in the event that, in
Women & Mothers’ judgment, Affiliate has violated the Editorial Standards or the other requirements for the Affiliate set forth in this Agreement. Affiliate shall not have any right to review or approve Women & Mothers’ use of the Affiliate content, provided such use is in compliance with this Agreement.
Services Available.
Along with the growth of Women & Mothers additional services and opportunities will be made available for Affiliates and Third-Party Advertisers. As we do so will update, add, and/or change the terms of these services with prior notification sent to you the Affiliate.
Compensation and Revenue Share.
In consideration of the services to be performed by Affiliate pursuant to this
Addendum, Women & Mothers agrees to compensate Affiliate as follows:
(a) Fees for Additional Units.
Net Advertising Revenue received by Women & Mothers from the Women & Mothers 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 Women & Mothers and 75% to Affiliate. Women & Mothers Services placed in Banners shall be paid
out according to terms defined in the Agreement. With each remittance from Women & Mothers
as set forth in this Section 7.a, Women & Mothers shall provide Affiliate with a statement
setting forth the fees earned by Affiliate during the preceding month.
(b) Confidentiality of Fact and Amount of Payment.
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.
NON-DISCLOSURE AGREEMENT
THIS NON-DISCLOSURE AGREEMENT (this “Agreement”) is entered into and effective as
of the date of this form submission, 2009 between Women & Mothers Media, LLC and Affiliate
(the Affiliate), which are referred to herein separately as a “party” or together
as the “parties”.)
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.
B. In connection therewith, Disclosing Party may also disclose certain information concerning its businesses, products and contract terms, a portion of which information is regarded as confidential or proprietary and which may include valuable commercial assets. The parties desire to provide for a means of determining which information is confidential or proprietary information and for the respective rights and duties of the parties with respect thereto.
NOW, THEREFORE, in consideration of the covenants and agreements set forth herein, the parties hereto agree as follows:
1. Definitions.
As used herein:
a. The term “Information” shall mean all information relating to the products, designs, inventions, research, trade secrets, personnel, business, financial condition or prospects of the Disclosing Party, or which the Disclosing
Party obtained from a third party, that is furnished to the Receiving Party by the Disclosing Party or its agents, or is obtained by the Receiving Party through its inspection of the Disclosing Party’s property.
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.
Protection of Confidential Information. Receiving Party agrees, with respect to any Confidential Information received bit:
a. To hold and use such Confidential Information in confidence, to take all necessary and reasonable precautions to prevent disclosure of such Confidential Information, including, without limitation, precautions at least as great as the methods and degree of care the Receiving Party uses to prevent disclosure of its own proprietary and confidential information and to use such Confidential Information solely for the purpose(s) expressed in A of this Agreement;
b. To disclose Confidential Information only to the Receiving Party’s officers, employees and consultants on a need-to-know basis;
c. To request all persons receiving Confidential Information to agree to abide by the Receiving Party’s obligations with respect to the Confidential Information and require that each shall have executed or shall execute appropriate
written agreements sufficient to enable the Receiving Party to comply with all of the provisions of this Agreement;
d. To notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of this Agreement by Receiving Party and in every reasonable way to cooperate and to assist the Disclosing Party to regain possession of the Confidential Information and to prevent its further unauthorized use; and
e. To promptly return the Confidential Information existing in any tangible form to the Disclosing Party and destroy all Confidential Information of the Disclosing Party stored electronically or otherwise as part of any data
storage system, at any time upon the request of the Disclosing Party, which return and destruction shall be certified under oath if so requested by the Disclosing Party.
Limitations. The Receiving Party shall not be obligated to treat Information as Confidential Information if such Information:
a. Was rightfully in the Receiving Party’s possession or was rightfully known to the Receiving Party prior to receipt from the Disclosing Party; or
b. Is or becomes public knowledge without the fault of the Receiving Party; or
c. Is or becomes rightfully available to the Receiving Party without confidential restriction from a source not bound by a confidentiality obligation to the Disclosing Party; or
d. Is independently developed by the Receiving Party without use of the Confidential Information disclosed hereunder; provided, however, that the burden of proof of such independent development shall be upon the Receiving Party; or
e. Is required to be disclosed pursuant to court or government action, or applicable securities laws; provided, however, that the Receiving Party must give the Disclosing Party reasonable prior notice of disclosure pursuant to such court or government action, and the Information shall continue to be treated as Confidential Information for all other purposes. The obligations of confidentiality and other restrictions imposed hereof shall terminate with respect to any Confidential Information which ceases to be Confidential Information in accordance with this agreement.
Ownership. No Implied License or Permission to Use. No license, right, title or interest is granted, directly or indirectly, by the Disclosing Party in or to any Information, patent, copyright, trade secrets, Derivative, or other property as a result of conveying Information to the Receiving Party, except such license or other rights as may be mutually and expressly agreed upon between the parties by separate written agreement. For the
purposes of this Agreement, Derivative shall mean (i) for copyrightable or copyrighted material, any translation, abridgment, revision or other form in which an existing work may be recast, transformed or adapted; (ii) for patentable or patented material, any improvement thereon; and (iii) for material which is protected by trade secret, any new material derived from such existing trade secret material, including new material which may be protected by copyright, patent and/or trade secret. Receiving Party further agrees that, notwithstanding the respective proprietary positions in any Information or objects disclosed to it, it will not undertake, or allow others, to reverse engineer, decompile or disassemble, any equipment, media, software or other Confidential Information
disclosed to it, nor will Receiving Party use any Confidential Information except for the purpose(s) specified in “A” of this Agreement.
Warranties and Disclaimers. 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.
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.
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 enduser 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.
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.
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.
Governing Law. The validity and interpretation of this Agreement and the enforcement thereof shall be governed by the laws of the state of Colorado without regard to any principles governing conflicts of laws.
Attorneys’ Fees. 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.
Equitable Remedies. Each of the parties acknowledge that the unauthorized disclosure of Confidential
Information will diminish the value of the proprietary interests of the Disclosing Party therein and may cause irreparable damage, including loss of profit, reputation and good will. Accordingly, it is agreed that if Receiving
Party breaches its obligations hereunder, Disclosing Party shall be entitled to equitable relief to protect its interests, including but not limited to injunctive relief, as well as monetary damages.
