XXXXXXXXX.XXX, INC.
CO-BRANDED MARKETING AGREEMENT
This Agreement is made this March 11,1999 (the "Effective Date") between Umax
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Technologies, Inc., a California corporation, having a place of business at 0000
Xxxxxxx Xxxx., Xxxxxxx, XX 00000 ("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
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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 the creation of a Co-Branded
XxxxxXxxx.xxx site on XxxxxXxxx.xxx's server (having the URL address
xxxx://xxx.xxxxxxxxx.xxx/XXXX ("Co-Branded XxxxxXxxx.xxx") to enable Partner's
visitors and customers ("Visitors") to register to use services or view photo
albums from XxxxxXxxx.xxx.
2.0 LINK: XxxxxXxxx.xxx. will cooperate to promptly develop (a) a specially
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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"). During the term of this agreement, the Partner
will maintain the links on the Partners home page/front page
(xxxx://xxx.xxxx.xxx), toolbar/menu bar, and other appropriate locations to be
agreed upon by XxxxxXxxx.xxx and Partner.
3.0 CLIENT SOFTWARE: Partner agrees to ship the PhotoLoft Client software
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with each copy of the product. The PhotoLoft Client software will direct
customers to the Co-Branded Page, and contain the Partner Logo.
4.0 USAGE: Partner's customers will be offered a one year free Premium
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PhotoLoft account. Partner's customers will be identified by the serial number
associated with the hardware.
5.0 PROMOTION BY XXXXXXXXX.XXX: 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 the Partner will also be on display
to the PhotoLoft viewer.
6.0 PROMOTION BY PARTNER: Partner will (a) provide a sticker or logo on
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the hardware box identifying Partner as a PhotoLoft partner, and (b) provide in
box documentation promoting the Premium Account special offer.
7.0 CO-PROMOTION: Upon completion of the Co-Branded pages and associated
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links, XxxxxXxxx.xxx and Partner will issue a joint press release. In addition,
Partner will notify installed base of the availability of XxxxxXxxx.xxx via
e-mail.
8.0 FURTHER CUSTOMIZATION: XxxxxXxxx.xxx will be entitled to make changes
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to the co-branded entrance page to assure the same look and feel with the rest
of the site. Umax shall approve these changes within 10 days of notification by
PhotoLoft. Umax shall not unreasonably withhold approval of these changes.
9.0 TRADEMARKS:
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XXXXXXXXX.XXX MARKS: XxxxxXxxx.xxx hereby grants Partner a nonexclusive
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limited license to use, reproduce and display the XxxxxXxxx.xxx trademarks and
logos designated by XxxxxXxxx.xxx on Partner's Web Site and in Partner's
promotional material and documentation 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.
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PARTNER MARKS: Partner hereby grants XxxxxXxxx.xxx a nonexclusive limited
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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 provided by Partner, or shall first be submitted to
Partner for approval.
10.0 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
11.0 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.
12.0 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.
13.0 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.
14.0 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. 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
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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.
16.0 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.
17.0 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.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement in as of the
Effective Date:
By: s. Xxxx Xxxxxxxx By: s. John
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Date: 3/12/99 Date: 3/11/99
Title: President Title: Senior Director Mktg.
XxxxxXxxx.xxx, Inc.
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