DigitalPost Interactive – BabyNames.com Cooperative Marketing Agreement
DigitalPost
Interactive – XxxxXxxxx.xxx
This
Cooperative Marketing Agreement (“Agreement”) effective as of the date of the
later signature below, (“Effective Date”) is by XxxxXxxxx.xxx, LLC (“Partner”)
with its principal place of business at 0000 Xxxxxxxx Xxxx, #000, Xxx Xxxxxxx,
XX and DigitalPost Interactive
(“DPI”), a Nevada corporation with its principal place of business at
0000 Xx Xxxxxx Xxxx, Xxxxxx, XX 00000. The parties to this Agreement may be
collectively referred to hereinafter as the “Parties” or individually as a
“Party”.
The
Parties desire to enter into a business relationship in accordance with the
terms and conditions of this Agreement, and intending to be legally bound,
hereby agree as follows:
DEFINIITIONS
FW Service: A re-branded or
co-branded version of the family website service application that is developed,
hosted and provided by DPI.
Customer: An individual or
entity that has acquired and activated the branded FW service, as a direct
result of the Partner’s sales and marketing efforts.
Paid Activation: A
FW Service account activation made by a Customer in which Customer’s payment
information has been validated and at least one (1) payment has been
successfully received from Customer.
Partner: Operates the web
sites XxxxXxxxx.xxx and Xxxxxxxx.xxx
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1
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Relationship
of the Parties. It is understood that each Party is an
independent entity. Nothing in this Agreement shall be
construed to constitute the Partner or DPI as an employee or agent of the
other or to create any rights other than the rights described in this
Agreement. This Agreement does not constitute a franchise or a
joint venture. Neither Party shall have the power to obligate
the other for any expenses or other obligation without the prior written
approval of the other Party.
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2 Sales and
Marketing.
The
Parties intend to work cooperatively to promote the FW Service. In
order to further this purpose, the Parties shall undertake those
responsibilities described in Attachment
A. The Parties agree that Attachment A may be
amended from time to time upon written consent of both Parties.
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3
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Service, Hosting and
Technical Support Costs.
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Subject
to mutual agreement of final partnership requirements and level of
customization.
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4
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Service Elements and
Pricing
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The
following FW Service levels shall exist.
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A)
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A
two week free trial subscription, with three package
options
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Cooperative
Marketing Agreement, Page 2
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1
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Standard
package, which includes 1,500 family photos and 10 minutes of video clips
priced at $4.95 per month;
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2
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Classic
package, which includes 3,000 family photos and 30 minutes of video clips
priced at $8.95 per month;
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3
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Premium
package, which includes unlimited storage of photos and video clips, and
family email address priced at $11.95 per
month.
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Customer
shall pay the paid FW subscription fee through an ecommerce shopping cart that
is hosted by DPI.
Both
parties agree that service elements and pricing may be adjusted from time to
time, based on market conditions and other factors. Such adjustments must be
noted in writing and be mutually agreed upon.
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5
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COMPENSATION
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A)
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Subscription Revenue
Share. DPI agrees to pay Partner forty percent (40%) of
the ongoing monthly net fees received by DPI for active, paying Customer
Subscriptions during the Term of this Agreement. Upon cancellation of the
Agreement by either Party, for a period of 90 days DPI shall continue to
pay the Partner forty percent (40%) of the net fees received by DPI for
active, paying Customer Subscriptions that were generated through the
efforts of the Partner during the term of this
Agreement.
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If/when
total active paying Customer Subscriptions reaches 1,000, DPI will increase
commission level from 40% to (fifty) 50% of ongoing net fees. This level will
become retroactive once the 1,000 paid subscriber level is reached.
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B)
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Photo Merchandise Revenue
Share. DPI agrees to pay Partner twenty percent (20%) of
the gross revenue generated from sales on all photo-related products that
are sold through the co-branded FW Service during the Term of this
Agreement. Upon cancellation of the Agreement by either Party, for a
period of 90 days DPI shall continue to pay the Partner twenty percent
(20%) of the gross revenues received by DPI for photo-related products
sold through the co-branded FW Service during the term of this
Agreement.
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Payment. In the
case of A) DPI shall pay Partner on or about the 15th day of
the calendar quarter following completion of successful Customer Paid
Activation. In the case of B) DPI shall pay Partner on or about the
15th
day of the month following the photo merchandise transactions. DPI agrees to
maintain books and records relating to its payment
obligations. Partner shall have the right to conduct, at its expense
and no more than once in any six-month period, an audit of DPI’s books and
records by an independent accounting firm in accordance with generally accepted
auditing standards during regular business hours upon at least ten (10) business
days’ advance notice. Audits shall be for the purpose of determining
whether amounts payable have been properly calculated and paid. In
the event that such an audit reveals any underpayment, Partner shall be
reimbursed for all underpaid amounts and that audit shall not count toward the
limit of no more than one audit in any six-month period.
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6
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TERM AND
TERMINATION
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This
agreement shall commence on the Effective Date and shall continue in force for
two (2) years subject to termination as provided below. Following
this period, Agreement shall automatically renew for successive one (1) year
terms unless either Party elects by written notice to terminate the Agreement
with 60 days written notice prior to renewal period.
Cooperative
Marketing Agreement, Page 3
Rights Upon
Termination. Upon termination of this Agreement, each Party
shall return or destroy the other Party’s confidential information, cease any
use of the other Party’s name, products or services, or product literature, and
terminate any links from its website(s) any description, review or other
reference to either Party’s website(s); provided that the terms of the
confidentiality agreement between the Parties shall survive termination of this
Agreement according to its terms.
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7
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SERVICE LEVEL
GUARANTEE
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Coverage. DPI’s
service level guarantee applies to any Customer that has at least one uploaded
photo album within FW at the time of a service outage.
Service Level
Specifications. DPI endeavors to have the FW Service available
for http access in any part of the world 99.5% of the time. Network
downtime (unavailability) shall be defined as one hundred percent (100%) packet
loss and shall be measured on a monthly basis. Downtime is measured
beginning ten (10) minutes after DPI is verbally notified of the downtime by
phone. Reports of network downtime via email or fax are not accepted
under the Agreement. DPI’s administrators shall determine the end of
the downtime by a trace route to the affected computer.
Credits. For every
sixty (60) minutes of continuous downtime in excess of DPI’s 99.5% monthly
uptime guarantee, Customer will be entitled to a ten percent (10%) credit of the
monthly service fees, with the maximum credit not to exceed fifty percent (50%)
of the monthly service fees for the affected month. In order to
receive a credit, a credit request must be made within seven (7) days after the
downtime was experienced. Monthly service fee credit shall be the
sole and exclusive remedy in the event of downtime.
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8
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Restrictions. Credits
shall not be provided in the event that downtime results from any of the
following: i) Scheduled and emergency maintenance and upgrades;
ii) Partner or Customer behavior or failure of Partner or Customer’s
equipment, facilities or applications; or iii) Reasons of Force
Majeure as defined below.
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9
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Customer
Service.
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On issues
of a non-technical matter, DPI will provide Partner with support via phone and
e-mail for all requests relating to FW Service. Partner shall provide
first-level customer support for calls pertaining to FW Service. Partner has the
ability to access its customers’ data for FW service.
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10
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CONFIDENTIALITY Neither Party (the
“Recipient”) shall disclose to any third party or use for its own benefit
the other Party’s (the “Discloser”) proprietary or confidential
information except as authorized by the Discloser. All
confidential information of the Discloser shall remain the sole property
of the Discloser. This provision does not apply to information
which the Recipient lawfully receives from a third party having no
obligation of confidentiality or which the Recipient independently
develops. Each Party represents that each of its employees
having access to the other’s confidential information will, prior to
receiving such information from the Recipient, have executed a customary
non-disclosure agreement with the Recipient. These restrictions
and obligations shall remain in effect for a period of three (3) years
from the date this Agreement is terminated or
expires.
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11
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NON-EXCLUSIVITY
This Agreement does not impose upon either Party an obligation to
exclusively work with the other in any aspects of marketing related to
their respective products and services, or to participate exclusively in
any particular marketing effort proposed by the other. Subject
only to compliance with the terms of a confidentiality agreement between
them with
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Cooperative
Marketing Agreement, Page 4
NON-EXCLUSIVITY
(cont’d)
respect
to confidential information, the Parties agree they may engage in marketing
efforts with third Parties, even if such marketing efforts conflict with the
subject matter of this Agreement or compete with the other Party’s products or
services.
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12
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INTELLECTUAL
PROPERTY This Agreement
does not constitute a license, express or implied, by either Party to the
other Party to make, have made, use, reproduce, distribute, display or
perform any of such Party’s intellectual property rights, including but
not limited to patents, copyrights, trademarks or trade
secrets. All rights not expressly granted to either Party by
the other in this Agreement are reserved by such other
Party.
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13
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TRADEMARKS AND
TRADENAMES
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Rights in
Trademarks. Both Parties acknowledge that the other Party is
the owner of all right, title and interest in and to its name
and certain related designs associated therewith
(“Trademarks”),
together with any new or revised names or materials which the Trademark owner
may adopt to identify it or any of its Services during the Term, and each Party
agrees not to adopt or use any of the other Party’s Trademarks in any manner
whatsoever except as expressly provided in this Agreement.
License to Use
Trademarks. Each Party hereby grants to the other Party a
non-exclusive license during the Term to use their Trademarks, provided that
they are used solely in connection with the marketing of their Services and in
accordance with the Trademark owner’s specifications as to style, color and
typeface. Upon expiration or termination of this Agreement, each
Party will take all action necessary to transfer and assign to the Trademark
owner, or its nominee, any right, title or interest in or to any of the
Trademarks, or the goodwill related thereto, which the non-Trademark owner Party
may have acquired in any manner as a result of the marketing of the Trademark
owner’s Services under this Agreement and shall cease to use any Trademark of
the other Party. Each Party hereby agrees to notify the other Party
immediately if any infringement or potential infringement of any Trademark is
made known to the notifying Party.
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14
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WARRANTY AND LIMITED
LIABILITY
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DPI shall
furnish Customer with its standard warranty in effect at the time, if any,
covering the FW Service. Such warranty shall run exclusively to the
Customer, and not to the Partner.
DPI shall
not be liable to the Partner for loss incurred by the Partner arising from DPI’s
inability to deliver the FW Service due to strike, riot, work stoppage, shortage
or unavailability of product or material, act of government, act of God, war, or
any other cause beyond the control of DPI.
DPI MAKES
NO WARRANTY TO THE PARTNER WITH RESPECT TO THE TFP SERVICE OF ANY KIND, EXPRESS
OR IMPLIED. THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE AND NON-INFRINGEMENT ARE HEREBY DISCLAIMED. THIS
PROVISION SHALL SURVIVE TERMINATION OR EXPIRATION OF THIS
AGREEMENT.
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15
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NEITHER
PARTY, UNDER ANY CIRCUMSTANCES, SHALL BE LIABLE TO THE OTHER PARTY FOR
DAMAGES OF ANY NATURE, WHETHER DIRECT OR INDIRECT, INCIDENTAL,
CONSEQUENTIAL OR SPECIAL, INCLUDING, BUT NOT LIMITED TO LOST PROFITS, LOSS
OF GOODWILL, OR FOR EXPENDITURES MADE OR COMMITTED TO BY THE OTHER PARTY
IN RELIANCE UPON CONTINUATION OF THIS AGREEMENT, EVEN IF THE PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS PROVISION SHALL
SURVIVE TERMINATION OR EXPIRATION OF THIS
AGREEMENT.
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Cooperative
Marketing Agreement, Page 5
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16
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Notices.
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All
notices by either Party given under this Agreement shall be in writing and shall
be hand delivered or sent certified mail, return receipt requested or by
overnight courier. Notice may be given by facsimile if confirmed in
writing by first class mail, postage pre-paid or by overnight
courier. Notices to each Party shall be given at their respective
addresses first above written.
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17
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Assignment.
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Neither
Party shall assign any of its rights, interests or obligations under this
Agreement to a third party without the other Party’s prior written
consent.
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18
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Applicable
Law.
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This Agreement shall be governed by and
construed according to the laws of the State of
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19
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Severability.
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Any
provision of this Agreement which is adjudged to be illegal, invalid or
unenforceable in any respect shall not affect any other provision of this
Agreement and the balance of the Agreement shall continue in full force and
effect.
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20
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Entire
Agreement.
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This
Agreement, including any Attachments hereto, supersedes all other agreements and
representations, express or implied, written or oral, between the Parties with
respect to the subject matter of this Agreement. This Agreement shall
not be changed or modified except in a writing signed by duly authorized
personnel of each Party.
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21
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Headings.
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The
sections and paragraph headings used in this Agreement are inserted for
convenience only and shall not affect the meaning or interpretation of this
Agreement.
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22
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Force
Majeure.
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Neither
Party shall be liable for any failure or delay in its performance under this
Agreement due to causes, including, but not limited to, an act of God, act of
civil or military authority, fire, epidemic, flood, earthquake, riot, war
sabotage, labor shortage or dispute, and governmental action, which are beyond
its reasonable control.
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23
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Publicity
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Subject
to the other
party’s prior written approval, which shall not be unreasonably withheld,
either Party may
issue a press release or make statements to the press or general
public
regarding
this Agreement.
IN WITNESS WHEREOF, the
Parties have executed this Agreement as of the Effective Date.
DigitalPost
Interactive. –
Fax: 000-000-0000
XxxxXxxxx.xxx,
LLC
By: /s/Xxxxxxx
Xxxxxxx
By: /s/ Xxxxxxxx
Xxxx
Printed Name: Xxxxxxx
Xxxxxxx
Printed
Name: Xxxxxxxx
Xxxx
Title: President /
CEO Title: CEO
Date: April 14,
2008 Date: March 24,
2008
ATTACHMENT
A
RESPONSIBILITIES OF THE
PARTIES
GENERAL
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1.
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Each
Party agrees to identify a coordinator with overall responsibility for
ensuring the success of the relationship. Coordinators can be
changed, by their respective employers, at the sole discretion of the
employer.
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2.
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The
Parties shall use reasonable efforts to conduct ongoing marketing and
planning initiatives as mutually deemed appropriate, to review strategies,
direction, and customer
requirements.
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PARTNER
RESPONSIBILITIES
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1.
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Understanding
that the success of this relationship is based upon best efforts made to
market the FW service to its online audience and through other channels,
Partner shall make such best efforts to actively promote and sell the
co-branded Family Website service, provided by DPI via its website(s),
email and advertising, as well as by any other manner that is customary
for the Partner.
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2.
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Partner
may implement one of the following marketing initiatives and
others:
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Online
ad banners and text links
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Online
contests
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Email
newsletters
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Outbound
E-Commerce orders
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In-store
point of purchase signage at retail
stores
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Affiliate
sites
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Forum
Posts
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Reviews
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Catalogs
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3.
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Partner
shall cooperate with DPI in jointly developing marketing with the
appropriate value proposition and key messages to be used to effectively
promote the FW using Partner’s logo to Partner’s client
base.
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4.
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Partner
shall begin promoting the FW on Partner’s Website and through other
marketing initiatives website(s) within 30 days of the Effective Date of
this Agreement.
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5.
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Partner
shall obtain written approval from DPI for all marketing collateral in
which DPI is mentioned.
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DPI
RESPONSIBILITIES
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1.
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DPI
shall host and maintain the Family Website
service.
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2.
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DPI
shall obtain written approval from Partner for all marketing collateral in
which Partner is mentioned.
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3.
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DPI
shall provide Partner with a branded shopping cart that will allow
tracking of Customer sign ups for revenue sharing
purposes.
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4.
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DPI
shall be responsible for all billing, invoicing and fee collection from
Customers who choose to upgrade to the FW subscription
service.
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5.
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DPI
will work with Partner’s designated integration team to ensure that A) log
in/password information is carried through from Partner’s site to the FW
and B) new design templates can be added to the
FW
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Attachment
B
PROGRAM
DEVELOPMENT
The
following are components of the web development associated with the
customization of DPI’s family website platform for Partner
DPI will
not charge recurring costs associated with hosting, customer service and
technical support
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Application
Framework Build Out
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· Prepare
Development Environment
· Prepare
Skeleton Framework
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Partner
Branding Template Development
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· Modify
Pages for Template support
· Database
work to support Client Branding in Templates
· Develop
API to support Templates
· Synchronized
customer account data between Partner and DPI
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Platform
Packaging & Deployment
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· Preparation
of Server Farm for Project Delivery
· Deployment
of Project
· Q/A,
Review of Project and Modifications as necessary
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Total
Cost: FEE WAIVED*
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*
Depending on level of customization and potential e-commerce integration, to be
discussed further
