INTEGRATED ADVERTISING PROGRAM and NON-DISCLOSURE AGREEMENT
This Integrated Advertising Program and Non-Disclosure Agreement (the “Agreement”) is made pursuant to that certain Media Insertion Order (the “Media Insertion Order”) by and between the advertising partner (the “Company”) and Desha Productions, Inc (“BettyConfidential”) with its principal business offices located at 2625 Middlefield Road, No. 700, Palo Alto, CA 94306, and made a part thereof by mutual agreement of the parties.
In consideration of the covenants and conditions hereinafter set forth, BettyConfidential and Company agree as follows:
1. Services. Company shall participate in the Integrated Advertising Program Agreement (the “Program”) set forth in the Media Insertion Order(s) made a part hereof by mutual written agreement of the parties. Each Media Insertion Order shall not be effective until signed by both parties.
a. Invoices. Company shall pay BettyConfidential the fees set forth in each Media Insertion Order as indicated therein. Amounts not paid when due or during the cure period under this Agreement will accrue interest at a rate of one and one-half percent (1.5%), compounded on a monthly basis. In addition to all other available rights and remedies, BettyConfidential reserves the right to cancel and remove any and all Program advertisements if Company fails to make timely payments of any amounts owing hereunder. All payments of amounts owing to BettyConfidential will be made at the following location or such other location designated by BettyConfidential in writing: Desha Productions, Inc., 2625 Middlefield Road, No. 700, Palo Alto, CA 94306 or by PayPal email invoice.
b. Taxes. The fees, advances and other amounts owing to BettyConfidential pursuant to this Agreement do not include taxes or other governmental fees. Company will pay all taxes and other governmental fees arising out of or related to all transactions undertaken pursuant to this Agreement, other than taxes on BettyConfidential income and revenue, and will provide BettyConfidential with appropriate evidence of such payment upon request.
3. Content license. Company will provide advertisements, trademarks, product images and/or content (collectively, “Content”) necessary to fulfill its obligations under each Media Insertion Order. Company hereby grants BettyConfidential a world-wide, non-exclusive, royalty-free license to distribute, display, transmit, and otherwise use the Content as reasonably anticipated to fulfill BettyConfidential’s obligations under this Agreement and such Media Insertion Order(s).
4. Content limitations. Content may not contain, advertise, link (either directly or, if with the knowledge of Company, indirectly) to or otherwise be related to content that (a) is obscene, defamatory, libelous, slanderous, profane, indecent or unlawful; (b) infringes or misappropriates third party intellectual property rights (including, but not limited to, copyrights, trademarks, service marks or any other proprietary, publicity or privacy right); (c) constitutes “hate speech”, whether directed at an individual or a group, and whether based upon the race, sex, creed, national origin, religious affiliation, sexual orientation or language of such individual or group; (d) facilitates or promotes gambling, or the sale or use of liquor, tobacco products or illicit drugs; or (e) facilitates, promotes or forwards illegal contests, pyramid schemes or chain letters. BettyConfidential may, but is under no obligation to, review the Content, and may refuse to make Content available to users in whole or in part if BettyConfidential determines that Content violates the foregoing limitations or such other reasonable limitations as BettyConfidential may adopt from time to time. Additionally, Company warrants that it will not willfully or knowingly provide Content which promotes or contains viruses, worms, corrupted files, cracks or other materials that are intended to or may damage or render inoperable software, hardware or security measures of BettyConfidential, subscribers or any third party. Failure by BettyConfidential to exhibit Content which does not meet the specifications required by BettyConfidential, includes materials which do not meet BettyConfidential’s content limitations, and/or is in violation of Company’s warranties does not constitute a breach of this Agreement or otherwise entitle Company to any legal remedy.
5. Links to Internet sites. Company warrants and represents to BettyConfidential that each Internet site identified by URLs in advertisements is in compliance with Company’s warranties set forth in Section 8. BettyConfidential may reject any Content or refuse to provide links from any site owned, operated or controlled by BettyConfidential to any materials on Company’s site that: (a)violates Company’s warranties; (b) is factually inaccurate, misleading or deceptive; and/or (c) contain any programs, application, interfaces or other functions that, given the nature of The BettyConfidential Network of Internet services (collectively, “The BettyConfidential Network”) and in BettyConfidential’s reasonable judgment would have a deleterious effect on any The BettyConfidential Network user’s experience. In determining whether any materials on the Company’s site or Content would have a deleterious effect on a The BettyConfidential Network user’s experience, BettyConfidential shall use standards consistent with those BettyConfidential uses to determine quality standards for its other Integrated Partners. BettyConfidential may test Company’s URLs, and in BettyConfidential’s sole discretion may remove any URLs at any time that fail to comply with the above requirements if Company has not cured such failure within forty-eight (48) hours of notification. Notwithstanding the foregoing, Company may provide alternate URLs to BettyConfidential.
6. Removal of Content. If BettyConfidential receives a claim of infringement concerning the Content or a claim which alleges a breach of Sections 5 or 8, the parties agree that BettyConfidential may, in addition to any other remedies provided for herein, immediately remove the Content from any and all BettyConfidential site(s), pending receipt of a non-infringing replacement link or satisfactory resolution of the claim, and any such removal shall not constitute a breach of this Agreement. Company must provide non-infringing replacement Content or resolve the claim to BettyConfidential’s satisfaction, within forty-eight (48) hours of notification.
7. Term and Termination. This Agreement shall commence as of the Effective Date of the Media Insertion Order and may only be terminated by either party immediately following a material breach of this Agreement, which breach remains uncured for a period of Seven (7) days after written notice thereof is received by the non-breaching party. However, the parties agree that each Media Insertion Order may be terminated according to the terms for such program.
8. Representations and Warranties.
b. By BettyConfidential. BettyConfidential represents and warrants to Company that it has the full corporate rights, power and authority to enter into this Agreement and to perform the acts required of it hereunder.
c. WARRANTY DISCLAIMER. EXCEPT AS SET FORTH HEREIN, THIS SECTION CONTAINS THE ONLY WARRANTIES, EXPRESS OR IMPLIED, MADE BY COMPANY AND BETTYCONFIDENTIAL. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE BETTYCONFIDENTIAL NETWORK AND ANY MATERIALS OR OTHER SERVICES PROVIDED BY OR ON BEHALF OF BETTYCONFIDENTIAL PURSUANT TO THIS AGREEMENT ARE PROVIDED “AS IS” AND WITH ALL DEFECTS. BETTYCONFIDENTIAL HEREBY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, NONINFRINGEMENT, COMPATABILITY, SECURITY, AND CONDITION OR OPERATION OF THE FOREGOING AND/OR THE TECHNOLOGY DEPLOYED IN CONNECTION THEREWITH. BETTYCONFIDENTIAL DOES NOT WARRANT THE CONTINUED OR UNINTERRUPTED OPERATION OF THE INTERNET OR THE BETTYCONFIDENTIAL NETWORK.
9. Indemnity. The parties agree to indemnify, defend, and hold each other harmless from any and all actions, causes of action, claims, demands, costs, liabilities, expenses (including reasonable attorneys’ fees) and damages arising out of or in connection with any claim made by a third party that, if true, would be a breach by either party of any representation, warranty, or obligation to be performed by such party hereunder. If any action shall be brought against either party (the “Claimant”) in respect to any allegation for which indemnity may be sought from the other party (the “Indemnifying Party”) pursuant to the provisions of this section, Claimant shall promptly notify Indemnifying Party in writing, specifying the nature of the action and the total monetary amount sought or other such relief as is sought therein. Claimant shall not settle or otherwise compromise any claim without the written consent of Indemnifying Party, which consent shall not be unreasonably withheld. Claimant shall cooperate with Indemnifying Party at Indemnifying Party’s expense in all reasonable respects in connection with the defense of any such action. Indemnifying Party may upon written notice to Claimant undertake to conduct all proceedings or negotiations in connection therewith, assume the defense thereof, and if it so undertakes, it shall also undertake all other required steps or proceedings to settle or defend any such action, including the employment of counsel that shall be satisfactory to Claimant, and payment of all expenses. Claimant shall have the right to employ separate counsel and participate in the defense at Claimant’s sole expense. Indemnifying Party shall reimburse Claimant upon demand for any payments made or loss suffered by it at any time after the date of tender, based upon the judgment of any court of competent jurisdiction or pursuant to a bona fide compromise or settlement of claims, demands, or actions, in respect to any damages to which the foregoing relates.
10. Limitation of Liability.
a. Limitation of Remedies. EXCEPT TO THE EXTENT ARISING PURSUANT TO SECTION 9, A BREACH OF SECTION 12 OR IN THE EVENT OF WILLFUL MISCONDUCT BY EITHER PARTY, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF OR UNAUTHORIZED ACCESS TO INFORMATION INCURRED BY THE OTHER PARTY ARISING OUT OF THIS AGREEMENT (PROVIDED THAT THIS LIMITATION SHALL NOT LIMIT EITHER PARTY’S OBLIGATION TO INDEMNIFY THE OTHER PARTY FOR THIRD PARTY CLAIMS WHICH INCLUDE SUCH DAMAGES), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
b. Limitation of Damages. EXCEPT TO THE EXTENT ARISING PURSUANT TO SECTION 9, A BREACH OF SECTION 12 OR IN THE EVENT OF WILLFUL MISCONDUCT BY EITHER PARTY, IN NO EVENT WILL EITHER PARTY OR ANY OF ITS AFFILIATES BE LIABLE TO THE OTHER PARTY FOR DAMAGES IN EXCESS OF AMOUNTS ACTUALLY PAID AND/OR OWING TO BETTYCONFIDENTIAL HEREUNDER.
11. Notices. All notices and requests in connection with this Agreement will be deemed given (a) when personally delivered, (b) or sent by electronic mail or facsimile (in each case, with prompt confirmation of receipt), (c) the next business day following delivery to a nationally recognized courier service guarantying next-day delivery, or (d)five (5) business days after being placed in the United States mail, postage prepaid, certified or registered, return receipt requested, as follows, or to such other address as the party to receive the notice or request so designates by at least ten (10) days prior written notice to the other party:
e. Notices to Company: As set forth in the Media Insertion Order.
f. Notices to BettyConfidential: As set forth in the Media Insertion Order.
12. Non-Disclosure. Company agrees to maintain the Non-Disclosure Agreement made a part hereof.
13. Press Releases. Neither party will issue any press release or make any public announcement(s) relating in any way whatsoever to this Agreement or the relationship established by this Agreement without the express prior written consent of the other party, which consent shall not be unreasonably withheld except as provided by law, provided that BettyConfidential may make informational references to each program set forth in the Media Insertion Order(s)made a part hereof and Company’s participation therein in publicity and press releases without obtaining Company’s consent.
14. Miscellaneous. Company is an independent contractor, and nothing in this Agreement will be construed as creating an employer-employee relationship, partnership, or joint venture between the parties. This Agreement shall be construed and controlled by the laws of the State of California. In any action or suit to enforce any right or remedy under this Agreement or to interpret any provision of this Agreement, the prevailing party shall be entitled to recover its costs, including reasonable attorney’s fees. Neither party may assign, sub-license, transfer, encumber or otherwise dispose of this Agreement (other than to a person, firm or entity controlling, controlled by or under common control with the assigning party or in connection with a sale of all or substantially all of the assigning party’s assets) without the other party’s prior written approval. Any attempted assignment, sub-license, transfer, encumbrance or other disposal without such consent shall be void and shall constitute a material default and breach of this Agreement. Except as otherwise provided, this Agreement shall be binding upon and inure to the benefit of the parties’ successors and lawful assigns. This Agreement together with the Media Insertion Order constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements or communications. This Agreement does not constitute an offer by BettyConfidential and it shall not be effective until the Media Insertion Order is signed by both parties. This Agreement shall not be modified except by a written agreement dated subsequent to the date of the Media Insertion Order and signed on behalf of Company and BettyConfidential by their respective duly authorized representatives. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. If any provision of this Agreement conflicts with governing law or if any provision is held to be null, void or otherwise ineffective or invalid by a court of competent jurisdiction, (i) such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and (ii) the remaining terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect. This Section and Sections 2 (Payment), 8 (Warranties), 9 (Indemnification), 10 (Limitation of Liability), and 12 (Non-Disclosure) shall survive termination, along with any other provisions that might reasonably be deemed to survive such termination.
THIS NON-DISCLOSURE AGREEMENT (this “Agreement”) is entered into between the advertising partner (the “Company”), and Desha Productions, Inc. (“BettyConfidential”), with its principal business offices located at 2625 Middlefield Road, No. 700, Palo Alto, CA 94306, which are referred to herein separately as a “party” or together as the “parties”.
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 an Integrated Partnership Advertising Program Agreement.
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.
2. Protection of Confidential Information. Receiving Party agrees, with respect to any Confidential Information received by it:
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 Recital 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.
3. 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 under Section 2 hereof shall terminate with respect to any Confidential Information which ceases to be Confidential Information in accordance with this Section 3.
4. 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 Recital A of this Agreement.
5. 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.
6. 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.
7. 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 end-user 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.
8. 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.
9. 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.
10. Governing Law. The validity and interpretation of this Agreement and the enforcement thereof shall be governed by the laws of the state of California without regard to any principles governing conflicts of laws.
11. 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.
12. 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.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the Effective Date of that certain Media Insertion Order. This Integrated Advertising Program and Non-Disclosure Agreement is a contract governed by law and by the terms and conditions set forth herein and of the Media Insertion Order made a part hereof.