爱华网
EXCLUSIVE SPONSORSHIP AGREEMENT
网上书店独家赞助协议
CONTENTS
Section 1. Exclusivity 排他性权利
Section 2. Term and Termination 有效期与协议终止
Section 3. Promotion 市场促销
Section 4. Impression Guarantees 对网页数量的承诺
Section 5. Legal Compliance 遵守法律
Section 6. Maintenance 网站的日常维护
Section 7. Compensation 费用补偿
Section 8. Reports and Audit 报表与审计
Section 9. Representations and Warranties; Limitation ofliability 保证承诺与责任限制
Section 10. Fulfillment 订单的履行
Section 11. Intellectual Property Rights 知识产权
Section 12. Confidentiality 保密
Section 13. Indemnification 保护对方的责任
Section 14. Traffic Data 网络流量数据
Section 15. Dispute Resolution 争议处理
Section 16. General Provisions 一般性约定
This Exclusive Sponsorship Agreement ("Agreement") is enteredinto as of ____ (M/D/Y) (the "Effective Date") by and betweenInc.,(PARTY A) with offices at _____(address) and,Inc., (PARTY B) with offices at ____(address).PARTY A and PARTY B may be referred to generically as a "Party", orcollectively as "Parties".
WHEREAS, PARTY B operates a site on the World Wide Web andAmerica On Line, which contains channels including but not limitedto Parent Soup, Parents Place, Better Health and ArmchairMillionaire as well as career, fitness & beauty, food,relationships and work from home channels (collectively the"Network").
WHEREAS, PARTY A seeks to drive Network users ("Users") to itsWorld Wide Web site (the "PARTY A Web site"), to acquire repeatcustomers, to increase book purchases focusing on lifestylecategories such as parenting, health, finance and career, and toreinforce the PARTY A brand as the "Earth's Biggest Bookstore".
WHEREAS, PARTY B and PARTY A now desire to enter into thisAgreement whereby PARTY A shall be an exclusive sponsor andretailer throughout the Network (the "Program") subject to theterms and conditions stated herein.
Section 1. Exclusivity排他性权利
For the term of this Agreement and any subsequent renewalthereto, PARTY B agrees that PARTY A shall be the exclusive booksponsor and retailer, with respect to entities whose primarybusiness is that of a book retailer, throughout the Network andthat no advertising, links, promotional information or marketingmaterials for or relating to any of the entities listed in ExhibitA hereto or any other individual, entity or web site which derivesmore than ten percent (10%) of its annual gross revenue from thesales of books or magazines (whether in printed, audio, electronicor other format) or is primarily functioning or primarily known asa seller of books or magazines, shall be placed or displayed on theNetwork. In addition, PARTY B will not (a) sell, or permit anyother person or entity to sell, any books or magazines on theNetwork; or (b) use, or permit any other person or entity to use,all or any part of PARTY B's customer information database to sellany books or magazines; provided, that such books or magazines areavailable from PARTY A. Nothing herein shall (a) prevent an authoror subject matter expert from discussing or promoting the sale of aparticular book or magazine on the Network, provided that suchauthor or expert does not recommend or promote the purchase of suchbook or magazine from a specific party other than PARTY A; or (b)prevent any other sponsor from selling books or magazines on itsown web site, provided that the sale of such books or magazines isnot promoted or referenced on the Network. In the event that PARTYB produces or publishes any private label books, PARTY B will offerPARTY A the first right of refusal as to the ability to sell suchbooks before such opportunity is offered to any third party. PARTYA's sponsorship and exclusivity with regard to products other thanbooks or magazines shall be determined on a case by case basis,whereby PARTY A shall provide PARTY B with written notice of anyother products it seeks to include within the scope of thisAgreement, and PARTY B shall have sole discretion as to whethersuch other product(s) shall be included.
Section 2. Term and Termination 有效期与协议终止
2.1 Term
The initial term of this Agreement (the "Initial Term") shallcommence on the Effective Date and shall continue for a period oftwelve (12) months from the date that all of the PromotionalPlacements and Opportunities described in Section 3 below areavailable on the Network (the "Implementation Date") unlessterminated earlier or extended as provided herein. Promptly afterthe Implementation Date has occurred, the parties shall in goodfaith agree upon and document in writing such Implementation Date.Upon mutual agreement of the parties within no less than sixty (60)days prior to the expiration date of the Initial Term, theAgreement may be renewed for an additional twelve (12) month term(the "Renewal Term"). The Parties agree to discuss, in good faith,prior to the end of the Initial Term, the status of therelationship of the Parties and the terms of the Agreement.Notwithstanding the foregoing, if the parties agree to renew theAgreement, the terms of the Agreement, including without limitationthe compensation terms stated in Section 7 below, shall remain infull force and effect without amendment. However, if prior to sixty(60) but no more than ninety (90) days before the expiration of theInitial Term, PARTY B receives a bona fide offer from a third partyto become the exclusive book sponsor and retailer throughout theNetwork on financial terms more advantageous to PARTY B than thosestated in Section 7 herein and provides PARTY A with written noticeand a copy of such offer, PARTY A must notify PARTY B in writingwithin thirty (30) days of receiving such notice whether it iswilling to amend the Agreement to match the financial terms offeredby such third party for the Renewal Term. If PARTY A notifies PARTYB that it is willing to renew the Agreement upon the amendedfinancial terms, then those terms shall be applied to the RenewalTerm, notwithstanding anything in this Agreement to the contrary.If PARTY A does not notify PARTY B that it is willing to amend thefinancial terms of the Agreement for the Renewal Term within thirty(30) days of receiving such notice, then PARTY B shall have fifteen(15) days thereafter to give PARTY A written notice to terminatethis Agreement at the end of the Initial Term and may then enterinto an Agreement with such third party on the amended termsoffered to PARTY A.
2.2 Termination
In the event of a material breach by either party of any term ofthis Agreement, the nonbreachingparty may terminate this Agreement by written notice to thebreaching party if the breaching party fails to cure such materialbreach within thirty (30) days of receipt of written noticethereof. Either party may terminate this Agreement effective uponwritten notice stating its intention to terminate in the event theother party (a) ceases to function as a going concern or to conductoperations in the normal course of business, or (b) has a petitionfiled by or against it under any state or federal bankruptcy orinsolvency law which petition has not been dismissed or set asidewithin sixty (60) days of its filing.
2.3 Survival
Sections 9, 11, 12, 13, 15 and 16 hereof shall survive anytermination of this Agreement.
Section 3. Promotion 市场促销
Throughout the term of thisAgreement, and any extensions or renewals thereof, PARTY B willprovide links, advertisements and other promotional placements andopportunities to promote PARTY A and its sponsorship of the Network(collectively the "Promotional Placements and Opportunities") in amanner to be agreed upon by the parties. The Promotional Placementsand Opportunities provided by PARTY B will at a minimum be no lessprominent or frequent than those provided to any other Networksponsor or advertiser. The parties will cooperate in good faith todevelop and implement such Promotional Placements and Opportunitiesand to maximize the effectiveness of all such PromotionalPlacements and Opportunities. The Promotional Placements andOpportunities as described herein shall be available on the Networkno later than May 31 and shall include, without limitation, thefollowing promotions:
3.1 Book Club Sponsorship
3.1.1 PARTY B shall create and make available a Network-wideBook Club ("Book Club") which shall be sponsored exclusively byPARTY A and accessible from the PARTY B.com home page located atthe URL: http://www.PARTY B.com. Members of the Network will beinvited to become Book Club Members ("Book Club Members") and thosewho join the Book Club will be eligible for special promotionalbenefits including but not limited to book-related gifts anddiscounts from PARTY B and PARTY A. Book Club Members will alsohave the opportunity to submit questions to featured book authors.PARTY A will cooperate with PARTY B in the implementation of theseand other special promotional premiums in connection with the BookClub, but will have no financial obligation to PARTY B for suchpromotions. Subject to availability and budget, the Parties agreeto work together to produce and promote co-branded premiums.
3.1.2 PARTY B, its editors and producers, shall select booktitles from the Ainazon.com library which shall be prominentlyfeatured in the Book Club throughout the Network ("SelectedTitles") and shall provide a direct link to the PARTY A Web Sitefor the purchase of such Selected Titles. Selected Titles may beworks of fiction or non-fiction and it is anticipated thatselection of Selected Titles may also be made by Book Club Members.PARTY B shall select and feature those titles which concernsubjects and/or issues that appeal to the Users and/or which havebeen published within 3 months of the date the title is featuredand/or would appear on the Network for the first time anywhereonline.
3.1.3 In connection with Selected Titles, PARTY B shall postexcerpts from featured authors and shall host message boards andchats to be moderated by a Book Club leader and to be accessed byBook Club Members.
3.1.4 PARTY B shall also include a "Click here to buy from PARTYA" icon to be placed throughout the Book Club areas of the Networkwhich shall link Users to the PARTY A Web site.
3.2 Channel Book Lists
Throughout the channels of the Network, PARTY B shall promotereading lists ("Reading Lists"), on a rotating basis, oftopic-specific titles which are appropriate for those givensubchannels of the Network channel on which the Reading Lists arefeatured. The "Click here to buy from PARTY A" icon will alsoappear in connection with the Reading Lists.
3.3 Search Engine Integration
PARTY B shall fully integrate the PARTY A database of availabletitles into an PARTY B search database, resulting in identicalqueries being carried to both the PARTY B search database and thatof PARTY A. When a User accesses the PARTY B search engine, a"Click here to find Related Books" icon will appear as part of thesearch results, allowing a User to view a list of related titlesfor purchase. In addition, PARTY B will reserve the key wordslisted in Exhibit B exclusively for PARTY A and will display anPARTY A banner (in addition to the PARTY A "Click here to findRelated Books" icon) whenever one of these key words is used in asearch query of the PARTY B site.
3.4 Shopping
PARTY B shall prominently feature PARTY A, its products andservices, in its Shopping Channel, located at the URLhttp:Hwww.PARTY B.com/shopping.htmi. During the term of this Agreement, PARTY A shallbe listed in the Shopping Channel with a branded button which shalllink Users directly to the PARTY A Web site.
3.5 Newsletter
PARTY A will have the opportunity to include a promotionalmessage of its choosing, subject to PARTY B's reasonable approval,in at least one email newsletter per month (twelve (12) totalnewsletters per year) that PARTY B will send to its emailsubscribers.
3.6 Banner Advertising
During the term of this Agreement, PARTY B agrees to provideadvertising banners that will run across the tops of the home pagesof various channels within the Network. The advertising bannerswill permit recipients to navigate directly to a page on the PARTYA Web Site selected by PARTY A.
3.7 Right of First Presentation and Promotion
PARTY B will present to PARTY A an equal opportunity (prior topresenting the opportunity to any other sponsor or other thirdparty) to participate in any new advertising, promotional ormerchandising placement or activity on any Network service or otherservice that is wholly or partially owned by PARTY B and/or any ofits corporate parents or wholly or partially owned subsidiaries.Any such PARTY A placements will come at no additional fixed coststo PARTY A, but instead will earn referral fees in accordance withthe schedule specified in Section 7 of this Agreement.
PARTY B will make a good faith effort to include PARTY Awhenever reasonably possible in its marketing campaigns (includingwithout limitation any TV, radio, print, and online ads) and willwork with PARTY A to determine the method and content to be used insuch marketing campaigns. PARTY B will feature PARTY A at least asprominently as any other sponsor in such marketing campaigns.Possible methods include selection and use of PARTY A screenshotsand/or logo where the PARTY B bookclub and PARTY A logo arevisible, voice-over mentions of PARTY B bookclub in associationwith Amazon-com, voice-over mentions of PARTY B channel book listsin association with PARTY A, or voice-over mentions of the PARTY A/ PARTY B partnership when discussing PARTY B features. Any suchpromotional placement featuring the PARTY A brand will come at noadditional cost to PARTY A.
3.8 PARTY A Policies
PARTY B acknowledges that Users who purchase books through theProgram will be deemed to be customers of PARTY A and subject toall PARTY A rules, policies and operating procedures concerningcustomer orders, customer service and books sales. PARTY A maychange its policies and operating procedures at any time. Inaddition, PARTY A will provide commercially reasonable efforts topresent accurate information with respect to any given book orPARTY A program.
Section 4. Impression Guarantees 对网页数量的承诺
4.1 In connection with each of the promotions listed below (asdescribed in further detail in Section 3 above), PARTY B guaranteesto provide at least the following number of Impressions (as definedbelow) to PARTY A during each of the Initial Term and the RenewalTerm, if any (the "Impression Guarantees"):
4.2 In the event that PARTY B fails to meet the ImpressionGuarantees, then PARTY B shall be required to either, at PARTY A'soption: (a) continue to provide the Promotional Placements andOpportunities until the guaranteed number of Impressions have beenmet, in which case the applicable term of this Agreement shall beextended, at no additional cost to PARTY A, until such guaranteesare met; or (b) cooperate in good faith with PARTY A to develop andimplement such other advertising or promotional placements as areacceptable to PARTY A to "make good" the shortfall. In addition, ifPARTY B fails to meet the Impression Guarantees, PARTY A may at anytime thereafter terminate this Agreement upon thirty (30) dayswritten notice.
4.3 PARTY B shall provide to PARTY A on a quarterly basis,within thirty (30) days following the end of each calendar quarter,a written report signed by an authorized representative of PARTY Bshowing in reasonable detail the number of Impressions deliveredduring such quarter. PARTY B shall keep and retain, during the termof this Agreement and for a period of three years thereafter, booksand records sufficient to demonstrate the number of Impressionsdelivered, and PARTY A shall have the right to have such books andrecords examined by an independent third party acceptable to PARTYB as are necessary to verify the number of Impressions reported toPARTY A. PARTY A is entitled to conduct such an audit only duringnormal business hours and no more frequently than once per calendaryear. PARTY A agrees to provide PARTY B with at least one (1) weekadvance notice of any audit. If the audit reveals that the numberof Impressions was misreported by more that ten percent (10%),PARTY B will pay for all costs reasonably incurred by PARTY A inconnection with the audit.
4.4 As used herein, the term "Impressions" shall mean a User's viewing of a webpage or equivalent containing one or more promotional hypertextlinks to the PARTY A Web Site of the nature specified in theapplicable portion of Section 3.
Section 5. LegalCompliance 遵守法律
Both Parties shall operatetheir respective Web sites and services in compliance with all applicable laws andregulations and each will be solely responsible for obtainingall required governmental authorizations necessary for the fullperformance of its services as provided for under thisAgreement.
Section 6. Maintenance 网站的日常维护
Each Party shall monitor and periodically test the generalavailability and operation of its Web site.
Section 7. Compensation费用补偿
7.1 Upfront Fees
7.1.1 PARTY A agrees to pay PARTY B, upon the signing of thisAgreement, an upfront, nonrefundable, non-recoupable setup fee inthe amount of [*].
7.1.2 In the event that this Agreement is renewed, PARTY Aagrees to pay PARTY B, within thirty (30) days after thecommencement of the Renewal Term, an upfront, nonrefundable,non-recoupable renewal fee in the amount of [*].
7.2 Referral Fees
7.2.1 In addition to the above fee, PARTY A shall pay to PARTYB, on a quarterly basis-and payable within thirty (30) days afterthe end of each quarter, referral fees based upon a percentage ofthe Sale Price of Qualifying Books actually purchased from PARTY A(the "Referral Fees'). PARTY A shall receive a credit for anyReferral Fees paid on Qualifying Books which are later returned.The term "Sale Price" as used herein shall mean the sale price(i.e. the price listed under the "Our Price" heading) for such booklisted in the PARTY A catalog in effect at the time of order anddoes not include costs for shipping, handling, gift-wrapping, andtaxes. The term "Qualifying Books" as used herein shall mean allin-print books listed in PARTY A's catalogue at the time of orderthat are purchased by Users as a direct result of following ahypertext link from the Network to the PARTY A Web Site.Notwithstanding anything herein to the contrary, sales of bookslisted in our catalog or in search results a.% "out of print" or"hard to find" are not eligible for any Referral Fees.
7.2.2 PARTY B will earn referral fees according to the followingfee schedule:
(a) [*]% of the Sales Price on sales of each Individually LinkedBook (as defined below) that, on the date of order, is listed inthe PARTY A catalog at [*]%-[*]% off the publishers list price;
(b) [*]% of the Sales Price on sales of each Individually LinkedBook that, on the date of order, is listed in the PARTY A catalogat the publisher's list price (such as special order books);
(c) [*]% of the Sales Price on sales of Individually Linked Bookthat, on the date of order, is listed in the PARTY A catalog atmore than [*]% off the publishers list price;
(d) [*]% of the Sales Price on sales of Qualifying Books otherthan Individually Linked Books; and
(e) the Referral Fees for Individually Linked Books as set forthin Sections 7.2.2 (a),
(b) and (c) shall be increased to [*]% of the fees specifiedtherein for any Individually Linked Books shipped priorto_____(M/D/Y).
The term "Individually Linked Books" as used herein shall meanbooks which are specifically featured by title in a PromotionalPlacement or Opportunity on the Network (as described in Section 3above) and purchased by Users as a direct result of following alink on the Network to the Amazori.com Web Site that specificallyidentifies the title of such book.
7.3 Referral Fee Guarantee
7.3.1 Initial Term
Notwithstanding the foregoing Section 7.2, if during the courseof the Initial Term of this Agreement PARTY B earns less than [*]in Referral Fees (the "Target Referral Fee Amount"), PARTY A shallinclude, in the final quarterly Referral Fee payment for ReferralFees earned during the Initial Term, that amount which causes PARTYB's total Referral Fees for the Initial Term to equal not less thanthe Target Referral Fee Amount. Any amount earned by PARTY B duringthe Initial Term in excess of the Target Referral Fee Amount shallbe due and owing to PARTY B in accordance with the above-mentionedquarterly payment schedule.
7.3.2 Renewal Term
Notwithstanding the foregoing Section 7.2, if during the courseof the Renewal Term of this Agreement, PARTY B earns less than [*]in Referral Fees (the "Renewal Target Referral Fee Amount"), PARTYA shall include, in the final quarterly Referral Fee payment forReferral Fees earned during the Renewal Term, that amount whichcauses PARTY B's total Referral Fee for the Renewal Term to equalnot less than the Renewal Target Referral Fee Amount. Any amountearned by PARTY B during the Renewal Term in excess of the RenewalTarget Referral Fee Amount shall be due and owing to PARTY B inaccordance with the abovementioned quarterly payment schedule.
Section 8. Reports andAudit 报表与审计
PARTY A shall track sales from PARTY B through a uniformresource locator and shall provide PARTY B with monthly reports ina form satisfactory to PARTY B. PARTY B shall have the right tohave examined by an independent certified public accounting fin-nacceptable to PARTY A, such of PARTY A's books and records as arenecessary to verify the accuracy of payments made to PARTY Bpursuant to this Agreement. PARTY B is entitled to conduct such anaudit only during normal business hours and no more frequently thanonce per calendar year. PARTY B agrees to provide PARTY A with atleast one week advance notice of any audit. The audit will belimited to revenue generated pursuant to this Agreement and thecalculation of payments due to PARTY B under this Agreement. If theaudit reveals that PARTY A has paid PARTY B less than the sum towhich PARTY B is entitled, PARTY A agrees to pay PARTY B theadditional sums due. If such sums exceed [*] of the total moniespaid to PARTY B under the Agreement, PARTY A will pay for all costsreasonably incurred by PARTY B in connection with the audit.
Section 9. Representations and Warranties;Limitation of liability 保证承诺与责任限制
9.1 Each party hereby represents and warrants that: (a) it is acorporation duly organized and validly existing and in goodstanding under the laws of the state of its incorporation, (b) ithas full power and authority to enter into this Agreement and toperform its obligations hereunder; (c) it has obtained all permits,licenses, and other governmental authorizations and approvalsrequired for its performance under this Agreement; and (d) theservices to be rendered by each party under this Agreement neitherinfringe nor violate any patent, copyright, trade secret,trademark, or other proprietary right of any third party.
9.2 PARTY A will remain solely responsible for the operation ofthe PARTY A Site, and PARTY B will remain solely responsible forthe operation of the Network. Each Party (a) acknowledges that thePARTY A Web Site and the Network may be subject to temporaryshutdowns due to causes beyond the operating Party's reasonablecontrol, and (b) subject to the specific terms of this Agreement,retains sole right and control over the programming, content andconduct of transactions over its respective site or service. EACHPARTY SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTYREGARDING (A) THE AMOUNT OF SALES THAT PARTY A MAY GENERATE DURINGTHE TERM, AND (B) ANY ECONOMIC OR OTHER BENEFIT THAT THE OTHERPARTY MIGHT OBTAIN THROUGH ITS PARTICIPATION IN THIS AGREEMENT.
9.3 NEITHER PARTY A NOR PARTY B WILL BE LIABLE TO THE OTHER FORANY INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES(INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA) ARISINGOUT OF THIS AGREEMENT. EACH PARTY'S ENTIRE LIABILITY ARISING FROMTHIS AGREEMENT (EXCEPT FOR LIABILITIES ARISING UNDER SECTION 13 ORRESULTING FROM THE PARTY'S WILLFUL MISCONDUCT), WHETHER IN CONTRACTOR TORT, WILL NOT EXCEED THE AMOUNTS TO BE PAID BY AMAZOIN.COMUNDER SECTION 7.
Section 10. Fulfillment订单的履行
PARTY A shall be solely responsible for (a) fulfilling allorders for its products and (b) calculating, collecting and payingall appropriate taxes associated with payment processing. PARTY A'sproducts offered through the Network will be supported by the samewarranty and return policy for such products as offered throughother PARTY A channels.
Section 11. IntellectualProperty Rights 知识产权
11.1 Subject to the license granted to PARTY B under Section11.3, PARTY A reserves all of its right, title and interest in itsintellectual property rights (e.g., patents, copyrights, tradesecrets, trademarks and other intellectual property rights).Subject to the license granted to PARTY A under Section 1 1.2,PARTY B reserves all of its right, title and interest in itsintellectual property rights.
11.2 PARTY A hereby grants to PARTY B, during the term of thisAgreement and any extensions or renewals thereof, a non-exclusive,non-transferable, royalty-free license to establish hyperlinksbetween the Party's Web Sites and to use PARTY A's trade names,logos, trademarks and service marks (the "PARTY A Marks") on theNetwork as is reasonably necessary to establish and promote suchhyperlinks and to otherwise perform its obligations under thisAgreement; provided, however, that any promotional materials orusages containing any of the PARTY A Marks will be subject to PARTYA's prior written approval.
11.3 PARTY B hereby grants to PARTY A, during the term of thisAgreement and any extensions or renewals thereof, a non-exclusive,nontransferable, royalty-free license to establish hyperlinksbetween the Party's Web Sites and to use PARTY B's trade names,logos, trademarks and service marks (the "PARTY B Marks") as isreasonably necessary to establish and promote such hyperlinks andto otherwise perform its obligations under this Agreement;provided, however, that any promotional materials or usagescontaining any of the PARTY B Marks will be subject to PARTY B'sprior written approval.
11.4 Neither Party will modify, alter or obfuscate the otherParty's Marks or use the other Party's Marks in a manner thatdisparages the other Party or its products or services, or portraysthe other Party or its products or services in a false,competitively adverse or poor light. Each Party will comply withthe other Party's requests as to the form of use of the otherParty's Marks and will avoid any action that diminishes the valueof such Marks. Either Party's unauthorized use of the other's Marksis strictly prohibited. Upon termination of this Agreement and uponwritten request, the Party in receipt of the requesting Party'sintellectual or proprietary property and/or information pursuant tothis Agreement shall return such information to the requestingParty.
Section 12.Confidentiality 保密
Except as expressly set forth herein, PARTY B and PARTY A shallmaintain in confidence the terms of this Agreement. It is expectedthat pursuant to discussions to date and to this Agreement, theParties may disclose to one another certain information, as definedherein, which is considered by the disclosing Party to beproprietary or confidential information (the "ConfidentialInformation"). Confidential Information is defined as anyinformation, communication or data, in any form, including, but notlimited to oral, written, graphic or electromagnetic forms, modelsor samples, which the disclosing party identifies as confidentialor which or is of such a nature that the receiving party shouldreasonably understand that the disclosing party desires to protectsuch information, communication or data against unrestricteddisclosure or use, including without limitation, businessinformation, financial data and marketing data. All ConfidentialInformation shall remain the sole property of the disclosing partyand its confidentiality shall be maintained and protected by thereceiving party with the same degree of care as the receiving partyuses for its own confidential and proprietary information. Thereceiving party shall not use the Confidential Information of theother party except as necessary to fulfill its obligations underthis Agreement, nor shall it disclose such Confidential Informationto any third party without the prior written consent of thedisclosing party. The restrictions on the use or disclosure of anyConfidential Information shall not apply to any ConfidentialInformation: (i) after it has become generally available to thepublic without breach of this Agreement by the receiving party;(ii) is rightfully in the receiving party's possession prior todisclosure to it by the disclosing party; (iii) is independentlydeveloped by the receiving party; (iv) is rightfully received bythe receiving party from a third party without a duty ofconfidentiality; or (v) is disclosed under operation of law.
Section 13.Indemnification 保护对方的责任
13.1 PARTY A will defend and indemnify PARTY B and itsaffiliates (and their respective employees, directors andrepresentatives) against any claim or action brought by a thirdparty, to the extent relating to (a) the operation of the PARTY AWeb Site, (b) any breach of its obligations under this Agreement,or (c) the violation of third-party intellectual property rights byany editorial content or other materials provided by PARTY A fordisplay on the Network. Subject to PARTY B's compliance with theprocedures described in Section 13.3, PARTY A will pay any awardagainst PARTY B or its affiliates (or their respective employees,directors or representatives) and any costs and attorneys' feesreasonably incurred by PARTY B and its affiliates resulting fromany such claim or action.
13.2 PARTY B will defend and indemnify PARTY A and itsaffiliates (and their respective employees, directors andrepresentatives) against any claim or action brought by a thirdparty, to the extent relating to (a) the operation of the Network,(b) any breach of its obligations under this Agreement, or (c) theviolation of third-party intellectual property rights by anymaterials provided by PARTY B for display on the PARTY A Web Site.Subject to PARTY A's compliance with the procedures described inSection 13.3, PARTY B will pay any award against PARTY A or itsaffiliates (or their respective employees, directors orrepresentatives) and any costs and attorneys' fees reasonablyincurred by PARTY A and its affiliates resulting from any suchclaim or action.
13.3 " In connection with any claim or action described in thisSection, the Party seeking indemnification (a) will give theindemnifying Party prompt written notice of the claim, (b) willcooperate with the indemnifying Party (at the indemnifying Party'sexpense) in connection with the defense and settlement of theclaim, and (c) will permit the indemnifying Party to control thedefense and settlement of the claim, provided that the indemnifyingParty may not settle the claim without the indemnified Party'sprior written consent (which will not be unreasonably withheld).Further, the indemnified Party (at its cost) may participate in thedefense and settlement of the claim.
Section 14. Traffic Data 网络流量数据
On a quarterly basis, PARTY B will use its best efforts toprovide PARTY A with mutually agreed data concerning search andbrowsing behavior on the Network, to the extent such behaviorreasonably could relate to the online promotion or sale of books orother products that PARTY A i-nay sell from time to time. PARTY Ashall treat such data as Confidential Information and will not useit iii except in accordance with reasonable guidelines to be agreedby the Parties. Notwithstanding anything contained in this Section,PARTY B will not be required to deliver to PARTY A any user data inviolation of its then-existing policies regarding the protection ofuser information.
Section 15. Dispute Resolution 争议处理
15.1 In a] I discussions and activities relating to thisAgreement, PARTY A and PARTY B will cooperate in good faith toaccomplish the objectives specified in this Agreement. If anydispute arises relating to either Party's rights or obligationsunder this Agreement, and the Parties are unable to resolve thedispute in the ordinary course of business, PARTY A and PARTY Bwill use good-faith efforts to resolve the matter in accordancewith this Section 15.
15.2 Within five (5) business days following the written requestof either Party (which will describe the nature of the dispute andother relevant information), the Parties' managers who areresponsible for the PARTY A/PARTY B relationship will meet toresolve the dispute at a mutually convenient time and place. If therelationship managers are unable to resolve the dispute within two(2) business days following their initial meeting, they will referthe matter to the Parties' divisional executives who areresponsible for the administration of this Agreement, along with awritten statement (or statements) describing the nature of thedispute and other relevant information.
15.3 Within five (5) business days following the referral of thematter to the Parties' divisional executives, the divisionalexecutives will meet to resolve the dispute at a mutuallyconvenient time and place. Additional representatives of theparties may be present at the meeting. If the divisional executivesare unable to resolve the dispute within two (2) business daysfollowing their initial meeting, they will refer the matter to theParties' Chief Executive Officers (or other appropriate corporateofficer with the authority to settle disputes), along with awritten statement (or statements) describing the nature of thedispute and other relevant information.
15.4 Within five (5) business days following the referral of thematter to the Parties' CEOs, the CEOs will meet to resolve thedispute at a mutually convenient time and place. Additionalrepresentatives of the parties may be present at the meeting. Ifthe CEOs are unable to resolve the dispute within two (2) businessdays following their initial meeting (or such later date as theymay agree), the Parties will be free to pursue whatever remediesmay be available at law or in equity.
15.5 All negotiations pursuant to this Section IS will beconfidential and treated as compromise and settlement negotiationsfor purposes of applicable rules of evidence. Any resolutionreached under this Section will be reduced to writing and signed bythe Parties. During any dispute resolution procedure conductedunder this Section, the Parties will diligently perform allobligations hereunder that are not directly related to thedispute.
Section 16. GeneralProvisions 一般性约定
16.1 The Parties are entering this Agreement as independentcontractors, and this Agreement will not be construed to create apartnership, joint venture or employment relationship between them.Neither Party will represent itself to be an employee or agent ofthe other or enter into any agreement on the other's behalf of orin the other's name.
16.2 Following the execution of this Agreement, PARTY A andPARTY B will prepare and distribute a joint press release (orcoordinated press releases) announcing the transaction. Thecontents and timing of the release (or releases) will be mutuallyagreed by the Parties. Neither Party will issue any further pressreleases, make any other disclosures regarding this Agreement orits terms or use the other Party's trademarks, trade names or otherproprietary marks without the other Party's prior writtenconsent.
16.3 In its performance of this Agreement, each Party willcomply with all applicable laws, regulations,orders and other requirements, now or hereafter in effect, ofgovernmental authorities having jurisdiction. Without limiting the generality of theforegoing, each Party will pay, collect and remit such taxes asmay be imposed with respect to any compensation, royalties ortransactions under this Agreement. Except as expressly providedherein, each Party will be responsible for all costs and expensesincurred by it in connection with the negotiation, execution andperformance of this Agreement.
16.4 Neither PARTY A nor PARTY B will be liable for, or will be considered to be in breachof or default under this Agreement on account of, any delay orfailure to perform as required by this Agreement as a result of anycauses or conditions that are beyond such Party's reasonablecontrol and that such Party is unable to overcome through theexercise of commercially reasonable diligence. If any force majeureevent occurs, the affected Party will give prompt written notice tothe other Party and will use commercially reasonable efforts tominimize the impact of the event.
16.5 Any notice or other communication under this Agreementgiven by any Party to any other Party will be in writing and willbe deemed properly given when sent to the intended recipient byregistered letter, receipted commercial courier, or electronicallyreceipted facsimile transmission (acknowledged in like manner bythe intended recipient) at its address and to the attention of theindividual specified below its signature at the end of thisAgreement. Any Party may from time to time change such address orindividual by giving the other Party notice of such change inaccordance with this Section 16.5.
16.6 Neither PARTY A nor PARTY B may assign this Agreement, inwhole or in part, without the other Party's prior written consent(which will not be withheld unreasonably), except to (a) anycorporation resulting from any merger, consolidation or otherreorganization involving the assigning Party, (b) any of itsAffiliates, or (c) any individual or entity to which the assigningParty may transfer substantially all of its assets; provided thatthe assignee agrees in writing to be bound by all the terms andconditions of this Agreement. Subject to the foregoing, this Agreement will be binding onand enforceable by the Parties and their respective successorsand permitted assigns.
16.7 The failure of either party to enforce any provision ofthis Agreement will not constitute a waiver of the party's rightsto subsequently enforce the provision. Any remedies specified inthis Agreement are in addition to any other remedies that may beavailable at law or in equity.
16.8 This Agreement (a) represents the entire agreement betweenthe parties with respect to the subject matter hereof andsupersedes any previous or contemporaneous oral or writtenagreements regarding such subject matter, (b) may be amended ormodified only by a written instrument signed by a duly authorizedagent of each party, and (c) will be interpreted, construed andenforced in all respects in accordance with the laws of the Stateof Washington, without reference to its choice of law rules. If anyprovision of this Agreement is held to be invalid, such invaliditywill not effect the remaining provisions. The parties agree thatthe venue for any disputes hereunder shall be King County,Washington, if such dispute is brought by PARTY B, and in New YorkCity, Borough of Manhattan, New York, if such dispute is brought byPARTY A..
16.9 If any provision ofthis Agreement shall be declared by any court of competentjurisdiction to be illegal, void or unenforceable, all otherprovisions of this Agreement shall not be affected and shall remainin full force and effect.
16.10 This Agreement maybe executed in any number of counterparts, each of which shall bedeemed to be an original and all of which together shall be deemedto be one and the same instrument.
IN WITNESS WHEREOF, the Parties hereto haveexecuted and delivered this Agreement as of the date first abovewritten.
PARTY APARTY B
By ____By_____
Date____(M/D/Y)Date_____(M/D/Y)
