Terms and Conditions
These Terms and Conditions (including any attached schedules, the "Terms and Conditions") are incorporated into the attached Publisher Agreement by and between StyleCaster and Publisher (the Publisher Agreement and the Terms and Conditions in the aggregate, the “Agreement”). Each of StyleCaster and Publisher may be referred to herein individually as a “Party” or collectively as the “Parties.”
The “Makeover Solutions Technology” is a commercially available suite of services, programs, components, functions provided by StyleCaster as a service over the Internet for targeted and measured delivery of the Try On! Studio (as defined below) and related products. The “Try On! Studio” is a trademarked and patent pending technology made available by StyleCaster as a service over the Internet, which may contain model selection unit, user photo upload module, product/service image and selection, “One Click Looks” window, “Products You Are Wearing” window, related content module, logo and/or video and marketing copy, and products module, “What You Are Wearing”. The unit also contains tools that enable capture of emails and social sharing of images generated by user.
The Try On! Studio provides for adjacent advertising that is owned and served by the StyleCaster.
1 REVENUE & TRAFFIC
1.1 Advertising Units. StyleCaster will control and serve the standard IAB Advertising Slots and pre-roll Interstitial adjacent to the Try On! Studio.
1.1.1 StyleCaster will be responsible for all aspects of selling and serving advertising.
1.2 Revenue; Sharing. StyleCaster will pay Publisher for impressions generated by Publisher adjacent to the Try On! Studio (“Qualifying Impressions”).
1.2.1 If Publisher generates less than 100,000 Qualifying Impressions per month, a NET $2 CPM will be paid to Publisher.
1.2.2 If Publishers generates greater than 100,000 Qualifying Impressions per month, a NET $3 CPM will be paid to the Publisher.
1.2.3 Payments will be made by check and mailed to Publisher 120 days after the last day of the month.
188.8.131.52 For the avoidance if doubt, all CPM fess will be calculated by taking the monthly number of Qualifying Impressions divided by one thousand and multiplying the applicable CPM charge rate.
1.3 Traffic Minimums. Publisher will be responsible for driving organic traffic to the Try On! Studio through efforts throughout websites owned by Publisher and through social media efforts.
2 USE OF THE MAKEOVER SOLUTIONS TECHNOLOGY
2.1 Provision of Makeover Solutions Technology. StyleCaster will abide by all laws, rules, and regulations that are applicable to its provision of the Makeover Solutions Technology as set forth herein.
2.3 Access; License Restrictions. Subject to the terms and conditions of this Agreement, StyleCaster hereby grants Publisher a royalty-free, non-exclusive, non-transferable right and license to access and use the Makeover Solutions Technology solely on Publisher Sites for non-commercial usage. The license granted in this Section is granted subject to the following restrictions: (a) Publisher shall not reverse engineer, decompile, disassemble or otherwise create, attempt to create, or permit or assist any third party to create a source code version of the Makeover Solutions Technology; (b) Publisher shall not license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, or otherwise commercially exploit or make the Makeover Solutions Technology available to any third party other than end users of any Publisher Site. All ownership rights, title, and interest in and to the Makeover Solutions Technology, as such may be modified, upgraded, and/or enhanced from time to time will remain with and belong exclusively to StyleCaster. StyleCaster reserves all rights not expressly granted to Publisher herein.
2.4 Functionality. StyleCaster will be responsible for functionality of the Try On! Studio and will host the Makeover Solutions Technology on its servers.
2.4.1 StyleCaster will provide such updates and error corrections to the Makeover Solutions Technology that it makes generally available to other licensees using the Makeover Solutions Technology for no additional fee.
2.3.2 StyleCaster will control its product roadmap for the Makeover Solutions Technology and select the top-level navigational items, sub-navigational items in each section and all of the products and content within the Try On selection options.
3 TRY ON! STUDIO MODULES
3.1 Product Selection & One Click Looks Windows
3.1.1 StyleCaster controls the content in the product selection & One Click Looks windows.
3.1.2 StyleCaster retains the right to feature certain products in the selection window from Makeover Solution brand partners and certain Looks in the One Click Looks selection window from Makeover Solution brand partners.
3.2 Related Content Module
3.2.1 StyleCaster will populate 25% of the links in the Related Articles Module with content from your RSS feed with StyleCaster will pull automatically.
3.2.2 StyleCaster will populate 75% of the links in the Related Articles Module with content from the StyleCaster Media Group network. StyleCaster reserves the right to serve content from our sites, our brand/retail/advertiser partners, or other StyleCaster partners, including from other Bloggers.
3.3 Products You Are Wearing Module
3.3.1 Products tried on by the user may lead to purchase on third party retail and ecommerce sites.
4 DATA & EMAIL COLLECTION & REPORTING
4.1 Data Ownership. As between the Parties, StyleCaster shall exclusively own all of the data StyleCaster collects from the use of the Try On! Studio and that of the end users of the Makeover Solutions Technology (the “Data”). StyleCaster will provide Publisher with an Analytics Dashboard, available through the CMS, allowing Publisher to view general metrics and baseline reporting,
4.2 Publisher may use any Data provided by StyleCaster hereunder solely for its internal business purposes and StyleCaster reserves all right, title and interest in and to the Data.
4.3 Email. StyleCaster has the right to serve an email acquisition interstitial. Email addresses collected are the property of StyleCaster.
5.1 As used herein, “Confidential Information” means, any and all information, regardless of whether it is in tangible form, disclosed by a Party (the “Disclosing Party”) to the other Party (the “Receiving Party”). All Confidential Information shall be either marked as confidential or proprietary, be identified in writing as confidential or proprietary within thirty (30) days of disclosure, or be reasonably understood by the Receiving Party as the Disclosing Party’s Confidential Information at the time of disclosure. Information shall not be deemed Confidential Information if such information: (i) is known to the Receiving Party prior to receipt from the Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (ii) becomes known (independently of disclosure by the Disclosing Party) to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the Receiving Party; or (iv) is independently developed by the Receiving Party without use of or reference to the Confidential Information. Each Receiving Party shall use reasonable measures to protect the secrecy of, avoid disclosure and unauthorized use or reproduction of the other Party’s Confidential Information during the Term and for a period of three (3) years following termination of this Agreement for any reason. Confidential Information may be disclosed to only (a) such employees and agents of the Parties as may have a need to know such information in the course of their duties; (b) legal or financial advisors of the Parties on a need to know basis; or (c) if required by law or valid order of a court or other governmental authority (provided that the Receiving Party delivers reasonable notice to the Disclosing Party and use commercially reasonable efforts to cooperate with Disclosing Party’s attempt to obtain a protective order).
6 REPRESENTATIONS, WARRANTIES AND EXCLUSIONS
6.1 Representations and Warranties. StyleCaster represents and warrants to Publisher that StyleCaster shall provide the Makeover Solutions Technology in a professional and workmanlike manner in accordance with applicable industry standards. Each Party represents and warrants to the other Party that such Party has the required power and authority to enter into this Agreement.
6.2 Exclusions. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE MAKEOVER SOLUTIONS TECHNOLOGY, TAGS AND STYLECASTER PLATFORM ARE PROVIDED ON AN “AS-IS” BASIS AND STYLECASTER DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. PUBLISHER ACKNOWLEDGES THAT STYLECASTER DOES NOT WARRANT THAT THE STYLECASTER PROPERTY WILL BE PROVIDED IN AN UNINTERRUPTED OR ERROR FREE FASHION AT ALL TIMES. WITHOUT LIMITING ANY OF THE FOREGOING, STYLECASTER MAKES NO EXPRESS OR IMPLIED GUARANTEES, REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE REVENUE TO BE GENERATED OR PLACEMENT OF ADVERTISEMENTS FROM USING THE MAKEOVER SOLUTIONS TECHNOLOGY HEREUNDER.
8 EXCLUSION AND LIMITATION OF LIABILITY
EXCEPT FOR LIABILITY ARISING FROM ANY MISUSE, VIOLATION OR INFRINGEMENT OF ANOTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST DATA, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF A REPRESENTATIVE OF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR LIABILITY ARISING FROM (A) ANY MISUSE, VIOLATION OR INFRINGEMENT OF ANOTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS AND (B) A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 6 ABOVE, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY IN EXCESS OF THE FEES PAID OR PROPERTY PAYABLE TO PUBLISHER UNDER THIS AGREEMENT FOR THE MOST RECENT THREE (3) MONTHS AT THE TIME OF ANY CLAIM. THE PROVISIONS OF THIS SECTION FAIRLY ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY AND REGARDLESS OF THE FORM OF ACTION.
9 TERM, TERMINATION
9.1 Term. The term of the Agreement shall commence on the Effective Date and continue until terminated pursuant to Section 9.2 below.
9.2 Termination. Either Party may terminate this Agreement for any reason or no reason upon thirty (30) days prior written notice to the other Party.
9.3 Obligations on Termination. Upon termination of this Agreement for any reason, all rights granted hereunder and all obligations of StyleCaster to provide Makeover Solutions Technology shall immediately terminate and the Parties shall return any Confidential Information of the other Party in its possession or control to the other Party. Termination of this Agreement shall not relieve StyleCaster from paying all fees accruing prior to termination. Sections 5, 6, 7, 8, 9, and 10 shall survive any termination of this Agreement.
9.4 Force Majeure. Neither Party shall be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control, including, without limitation, earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared) or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree (each a “Force Majeure Event”).
10.1 This Agreement may not be amended or modified, in whole or part, except by a writing signed by duly authorized representative of each Party. No provision or part of this Agreement or remedy hereunder may be waived except by a writing signed by a duly authorized representative of the Party making the waiver. Failure or delay by either Party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. Nothing in this Agreement shall be construed to place the Parties hereto in an agency, employment, franchise, joint venture, or partnership relationship. Except as provided herein, neither Party will have the authority to obligate or bind the other in any manner, and nothing herein contained shall give rise or is intended to give rise to any rights of any kind to any third parties. In the event that any provision of this Agreement is found to be unenforceable, such provision will be reformed only to the extent necessary to make it enforceable, and such provision as so reformed will continue in effect, consistent with the intent of the Parties as of the Effective Date. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to its rules of conflict of laws. Each of the Parties hereto hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the State of New York and of the United States of America located in the State of New York for any litigation among the Parties hereto arising out of or relating to this Agreement. All notices under or related to this Agreement will be in writing and will reference this Agreement. Notices will be deemed given when: (i) delivered personally; (ii) sent by confirmed telecopy or other electronic means; (iii) three (3) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) one (1) day after deposit with a commercial overnight carrier, with written verification of receipt. All communications will be sent to the addresses first set forth above or such other addresses designated pursuant to this Section. Neither Party may assign this Agreement, or sublicense any of the rights granted herein, in whole or in part, without the prior written consent of the non-assigning Party, which consent will not be unreasonably withheld by the non-assigning Party. Notwithstanding the foregoing, either Party may assign this Agreement without such consent to any person or entity controlling, controlled by, or controlled in conjunction with such Party or that acquires all or substantially all of the assets and business of the assigning Party by merger or purchase, provided that such person or entity assumes in writing all of the terms and conditions of this Agreement. Any attempt by either Party to assign or transfer any of the rights, duties or obligations of this Agreement in violation of the foregoing shall be void. This Agreement, including any Schedules hereto constitutes the entire agreement between the Parties. It supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter, and prevails over any conflicting terms or conditions contained on printed forms submitted with purchase orders, credit applications, sales acknowledgments or quotations. StyleCaster shall have the right to refer to Publisher as a Publisher of StyleCaster, either on an individual basis or as part of a list of some or all of StyleCaster ’s Publishers. Publisher agrees to allow StyleCaster to use Publisher’s name and logo on the StyleCaster Web Site(s), solely in connection with the foregoing, and to permit StyleCaster to use Publisher’s name in marketing material and press releases. For the avoidance of doubt, StyleCaster shall not be required to secure Publisher’s permission to use Publisher’s name and logo in any press release that merely states that Publisher is a Publisher of StyleCaster . StyleCaster will seek Publisher’s prior approval for all other written public material made available by StyleCaster that uses Publisher’s name and logo