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PopSugar Video Network Membership Agreement Standard Terms

The PopSugar Video Network (“Network”), owned and operated by Sugar Publishing, Inc. (“Sugar”) offers premium, professionally produced video content in the areas of celebrity, fashion, beauty (and coming soon) living, targeted to upscale adult women (“Network Video Content”). Network Video Content videos are professionally produced by Sugar’s PopSugar TV division, which has a library of over 1,500 videos and currently produces over 100 fresh videos every month.

Publisher, as identified on the Cover Sheet (“Publisher”), operates a premium site or sites (“Sites”). By signing the Cover Sheet, Publisher accepts Sugar’s invitation to become a member of the Network in accordance with the terms of this PopSugar Video Network Membership Agreement, comprising the attached Cover Sheet, the Standard Terms, and any other schedules or attachments specifically incorporated by reference herein (together, the “Agreement”). As a member, Publisher will be eligible to receive Publisher Payments in exchange for offering and promoting Network Video Content and associated advertising content to its audience, as described on the Cover Sheet and subject to the terms and conditions of this Agreement.

1. Sugar License (Network Video Content; Network Marks):

a. License Grant. Subject to the terms and conditions of this Agreement, Sugar grants Publisher (i) a non-exclusive, royalty-free, non-sub-licensable, revocable, worldwide license during the Term (i) to market, use, publicly perform, and display Network Video Content on Sites through Network-branded embedded video players (the “Network Players”) and (ii) to use the Network trade marks, trade names, service marks, and logos provided by Sugar to Publisher (the “Network Marks”), in compliance with Sugar’s then-current trademark usage policies, solely in connection with Publisher’s marketing of Network Video Content.

b. Limitations. Publisher agrees that the Network Marks and all associated goodwill remain the sole property of Sugar, that any goodwill created through Publisher’s licensed use of the Network Marks belongs and will inure solely to the benefit of Sugar, and that Publisher will change or cease its use of Network Marks as requested by Sugar. Publisher’s license to display and other use of Network Video Content applies to online display and other use on Publisher’s Site(s) only, and does not extend to display, use or distribution of Network Video Content via other channels such as mobile (e.g., mobile phones, other than accessing of Publisher’s Site through the use of an internet browser or “app”) or broadcast (e.g., cable, satellite, or digital television, or hard-copy media such as DVD). Publisher acknowledges that availability of Network Video Content and associated advertising is subject to change at any time and in Sugar’s sole discretion.

2. Monetization: Sugar will offer Publisher, as a Member of the Network, ongoing advertising opportunities and monetization opportunities through the Network. Advertising content offered via the Network, whether ongoing advertising content served to the Network Player in connection with Network Video Content (e.g., pre-roll and post-roll advertisements) or special opportunities offered on an opt-in basis and requiring acceptance of a special insertion order and the requirements thereof, is collectively referred to as “Network Advertising”. Publisher appoints Sugar, acting on behalf of the Network, as a non-exclusive representative of Publisher, for the sole and limited purpose of the sale by Sugar of Network Advertising displayed on Publisher’s Sites in connection with Network Video Content. Sugar may cancel any Network Advertising on 24 hours notice.

a. Member Compensation: Sugar will pay Publisher as set forth on the Cover Sheet for generating views of Network Advertising, as further set forth in Section 5 (Reporting and Payment); Sugar may amend the Publisher Payment rate via email to the Publisher Business Contact, and Publisher’s continued performance shall be deemed acceptance of the updated rate.

b. Marketing; Publisher License: Subject to the terms and conditions of this Agreement, Publisher grants Sugar, on behalf of the Network, a non-exclusive, royalty-free, non-sub-licensable, revocable, worldwide license during the Term, to (a) reproduce screen shots of pages of Sites for the purpose of preparing sales materials summarizing the Sites and their demographics; and (b) use Publisher’s name and logos, including trademarks, trade names, service marks, and logos owned by Publisher and used in connection with the Site(s) (“Publisher Marks”), in promoting the Network and in connection with comScore, Inc.’s (or similar online research companies’) reporting and entity/network definitions. Sugar agrees that it will use the Publisher Marks solely in connection with Sugar’s marketing of the Network and that such use will be in compliance with any trademark usage policies provided by Publisher to Sugar. Sugar agrees that the Publisher Marks and all associated goodwill remain the sole property of Publisher, that any goodwill created through Sugar’s licensed use of the Publisher Marks belongs and will inure solely to the benefit of Publisher, and that Sugar will change or cease its use of Publisher Marks as requested by Publisher.

3. Data Collection: Publisher acknowledges that, in order to provide advertisers with advanced targeting capabilities, Sugar, or a third party partner acting on its behalf, may in connection with the Network (i) use cookie-based ad serving technology for advanced ad targeting (such as serving ad series, re-targeting, and/or demographic or behavioral targeting), and (ii) categorize Publisher’s Site into content categories (e.g., content channels, ad safe ratings). Publisher further understands that Sugar may collect anonymized and non-personally-identifiable information about Publisher’s end users when those end users click on or otherwise interact with Network Video Content or Network Advertising. In each case, the data collected shall not contain personally identifiable information and remains subject to Sugar’s Privacy Policy and industry-standard privacy and confidentiality practices. Publisher acknowledges that Sugar has the right to use data collected under this Agreement (i) to perform its obligations under this Agreement; (ii) to improve the Network, including the selection and serving of Network Advertising; and (iii) in the aggregate with other Network data for general reporting purposes, provided that such aggregated data does not contain personally identifiable information and does not identify Publisher as the source of such information.

4. Confidentiality.

a. Definition. “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”) that (a) if disclosed orally is designated as confidential at the time of disclosure, (b) if disclosed in writing is marked as “Confidential” and/or “Proprietary”, or (c) that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including, without limitation, the terms and conditions of this Agreement (including Publisher Payment information, accompanying reports, and other financial terms hereunder), business and marketing plans, technology and technical information, product designs, and business processes. Notwithstanding the foregoing, each party may disclose the existence and terms of this Agreement, in confidence, to a potential purchaser of or successor to any portion of such party’s business resulting from the reorganization, spin-off, or sale of all or a portion of all of the assets of any business, division, or group of such party. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.

b. Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission. Notwithstanding the foregoing, the Receiving Party may disclose such Confidential Information to those of its and its affiliates’ employees and contractors who need to know such information for purposes of performing under this Agreement, and Receiving Party certifies that such employees and contractors have agreed, either as a condition of employment or in order to obtain the Confidential Information, to be bound by terms and conditions substantially similar to those in this Agreement. The Receiving Party shall use the same degree of care to protect the Confidential Information as it uses to protect its own information of a confidential and proprietary nature, but in no event shall it use less than a reasonable degree of care.

c. Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.

d. Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.

e. Survival. Notwithstanding the expiration or termination of this Agreement for any reason, the obligations of confidentiality and non-use set forth in this Section 4 (Confidentiality) shall extend until the Confidential Information becomes non-confidential by dint of any of the exclusions ((i), (ii), (iii), or (iv)) listed in Section 4(a) (Definition) above.

5. Reporting and Payment: “Network Revenue” means revenue actually received by Sugar in connection with the sale of Network Advertising, net of commissions, other associated fees and a reasonable reserve for under-delivery and similar matters. Sugar will pay Publisher, out of Network Revenue, the amount earned as provided in the Cover Sheet (“Publisher Payments”).

a. Payment Timing; Reporting. Sugar will make Publisher Payments monthly, within 45 days after Network Revenue is collected by Sugar and the Publisher Payment is earned by Publisher. Payment will be accompanied by a reasonably detailed statement of accounting, including Publisher’s performance in terms of impressions and revenue achieved by Site URL. Publisher will not be required to submit invoices; rather, Publisher Payments shall be made by Sugar based solely upon Sugar’s ad server reporting data (whether collected in-house or via a third party engaged by Sugar), such data to be included in the report accompanying the Publisher Payment.

b. Payment Terms. Payment will be made in U.S. dollars via PayPal or a check mailed to Publisher’s address of record above. No payment will be made to Publisher for any amount less than one hundred dollars ($100.00); such amounts will be carried forward each month until the total amount owed to Publisher equals or exceeds one hundred dollars ($100.00), and Publisher is not entitled to interest on any accrued amounts awaiting payment. As between the parties, Publisher is responsible for any applicable taxes or charges imposed by any government entity in connection with Publisher’s receipt of Publisher Payments under this Agreement.

c. Audit Rights: Sugar will use commercially reasonable efforts to maintain accurate books and records. Publisher has the right, once annually, on 30 days prior written notice, at a date and time reasonably acceptable to Sugar, to have at Publisher’s expense, an auditor from an accounting firm mutually agreeable to the parties inspect Sugar’s books and records concerning the Network, as limited to those necessary to determine whether payments to Publisher are correct and subject to confidentiality terms at least as strict as those in this Agreement. Sugar will revise its payments, if needed, based on the results of such audit.

6. Term and Termination:

a. Term. The Term of this Agreement commences on the Start Date on the Cover Sheet and continues for one year, barring early termination for breach. The Term will automatically extend for subsequent one-year renewal terms unless either party provides written notice to the other party of their intent not to renew at least 60 days prior to the end of the Term.

b. Termination. During the Term, either party may terminate this Agreement if the other party breaches the terms of this Agreement and fails to correct the breach within thirty (30) days after receiving written notice of the breach from the non-breaching party. Notwithstanding anything in this Agreement, Sugar may terminate this Agreement with immediate effect upon notice to Publisher if Sugar determines in its sole discretion that Publisher is using Network Video Content in a manner that may damage or cause injury (including to reputation) to Sugar, the Network, or any of its other brands or operations, including PopSugar.

c. Effect of Termination. Upon termination or expiration of this Agreement for any reason, all licenses granted hereunder will immediately terminate and Sugar will pay Publisher all undisputed amounts accrued but unpaid as of termination, in accordance with the regular payment schedule. The rights and obligations of the following Sections will survive any termination or expiration of this Agreement: 3 (Use of Data, but only data collected prior to Termination); 4 (Confidentiality); 5 (Reporting and Payment), solely with respect to any amounts accrued but unpaid as of the termination date; 6(c) (Effect of Termination); and 8 (Standard Terms and Conditions).

7. Placement of Video Content: It is of the essence of this Agreement for Publisher to reasonably promote and optimally display Network Video Content. Notwithstanding the foregoing, Publisher is excused from display of any Network Video Content that Publisher reasonably judges to be incompatible with its brand or policies. Publisher has the right to determine the placement and location of Network Video Content within Publisher’s Site(s), and retains absolute editorial control over its Site(s), subject to the following: (a) placement will be above the fold in the appropriate location to support the Network Player size set forth in the Cover Sheet; (b) placement will not be proximate to any content that would reasonably be considered objectionable (including but not limited to adult content) or otherwise derogatory of or detrimental to the Network Video Content, the Network Advertising, the Network, Sugar, or any of its or their brands, partners or affiliates; and (c) Publisher may not change the substance of any Network Video Content or Network Advertising or otherwise alter, modify or create derivative products from the Network Video Content or Network Advertising. Further, Publisher will not modify any specifications, technology, or code provided with or embedded in the Network Video Content, nor will Publisher modify the Network Video Content or disrupt any Network Advertising in any way (including, e.g., by interposing other content between Network Video Content and Network Advertising, or by intercepting or redirecting end users away from Network Advertising links).

8. Standard Terms and Conditions:

a. Publisher Warranty: Publisher represents and warrants that views of Network Video Content will be organic traffic to the Sites and not artificial traffic generated by Publisher, such as pop-ups, pop-unders, interstitials, or any means that is customarily considered “click fraud;” and Publisher will never use any form of adware, spyware or other software applications in the delivery of Network Video Content. Publisher further represents and warrants that, to the best of its knowledge: (a) it has the rights, licenses, releases, waivers and authority necessary to enter into this Agreement and to grant the rights and licenses specified herein; (b) its Site(s) and the content thereof do not (i) infringe, misappropriate or otherwise violate any copyright, trademark, trade secret or other proprietary right of any third party; (ii) contain any material that is defamatory, obscene, indecent or is otherwise unlawful or objectionable, or (iii) invade the right of privacy or publicity of any third party; and (d) to the best of Publisher’s knowledge, no claims, actions or other proceedings are pending or threatened that might affect Publisher’s ability to perform under this Agreement.

b. Network Warranty: Sugar represents and warrants that, to the best of its knowledge: (a) it has the rights, licenses, releases, waivers and authority necessary to enter into this Agreement and to grant the rights and licenses specified herein; (b) the Network Video Content does not (i) infringe, misappropriate or otherwise violate any copyright, trademark, trade secret or other proprietary right of any third party; (ii) contain any material that is defamatory, obscene, indecent or is otherwise unlawful or objectionable, or (iii) invade the right of privacy or publicity of any third party; and (d) to the best of Sugar’s knowledge, no claims, actions or other proceedings are pending or threatened in connection with the rights granted to Publisher by Sugar hereunder.

c. Disclaimer: EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, EACH PARTY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, RELATING (A) IN THE CASE OF SUGAR, TO THE NETWORK THE NETWORK VIDEO CONTENT, AND NETWORK ADVERTISING; AND (B) IN THE CASE OF PUBLISHER, TO PUBLISHER’S SITE(S); IN BOTH CASES, THIS DISCLAIMER INCLUDES WITHOUT LIMITATION THE WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSES, NON-INFRINGEMENT OF PROPRIETARY RIGHTS, COURSE OF DEALING, OR COURSE OF PERFORMANCE. Each party makes no guarantees regarding the availability, operation, maintenance, security, performance, timing or delivery of, for Sugar: the Network, Network Video Content, or Network Advertising; and, for Publisher: the Site(s); including in each case any goods or services described therein. Sugar makes no guarantees with respect to the revenue to be generated for either party under this Agreement.

d. Indemnification: Each party will indemnify, defend and hold the other party (including its officers, directors, employees, and affiliates) harmless with respect to any third-party claim (“Claim”), and any liability, damage, judgment or settlement, or expenses, including, without limitation, all reasonable legal expenses, incurred (collectively, “Damages”) arising from such Claim, to the extent such Claim arises out of any actual or alleged breach of this Agreement by the indemnifying party, including any the representations or warranties made herein by that party; provided, that the indemnified party must provide the indemnifying party with (i) prompt written notice of the Claim; (ii) sole control over the defense or settlement of such claim; and (iii) assistance, at the Indemnifying Party’s request and expense, to the extent reasonably necessary for the defense of such claim or suit. The indemnifying party will not enter into any settlement, disposition, or other resolution of a Claim that involves any liability or obligation on the part of the indemnified party without first obtaining the indemnified party’s written consent.

e. Limitation of Liability: EXCEPT FOR LIABILITY ARISING UNDER SECTION 8(D) (INDEMNIFICATION) OR THROUGH BREACH OF SECTIONS 2 (LICENSE) OR 4 (CONFIDENTIALITY): (A) NEITHER PARTY TO THIS AGREEMENT WILL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING LOSS OF USE, DATA OR PROFITS, COST OF PROCURING SUBSTITUTE PRODUCTS, OR BUSINESS INTERRUPTION), WHETHER BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE NETWORK, THE NETWORK VIDEO CONTENT, THE NETWORK ADVERTISING, OR PUBLISHER’S SITE(S), WHETHER OR NOT THE DAMAGES ARE FORESEEABLE OR EITHER PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) EACH PARTY’S LIABILITY UNDER THIS AGREEMENT TO EACH OTHER OR TO ANY THIRD PARTY, FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF ACTION, IS AND SHALL BE LIMITED TO THE TOTAL AMOUNT PAID OR OWED WITHOUT DISPUTE TO PUBLISHER UNDER THIS AGREEMENT. EACH PARTY AGREES THAT THESE LIMITATIONS AND THE ALLOCATION OF RISK THEY REFLECT ARE AN ESSENTIAL BASIS FOR THIS AGREEMENT.

f. Miscellaneous: This Agreement is not assignable by Publisher without Sugar’s prior written consent; subject to the foregoing, this Agreement is binding upon and inures to the benefit of each party’s permitted successors and assigns. All notices under this Agreement must be in writing. No changes or modifications or waivers to this Agreement will be effective unless in writing and signed by both parties. In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to the conflicts of laws provisions thereof, and each party consents to the jurisdiction of the state and federal courts located in San Francisco, California as the exclusive venue for pursuit of any claim arising under this Agreement. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. Headings herein are for convenience of reference only and shall in no way affect interpretation of the Agreement. Each party to this Agreement is an independent contractor and neither shall be considered the employee, agent, party or joint venturer of or with the other (regardless of how the parties are referred to in writing or orally) or have any express or implied authority to bind the other except as specifically set forth in this Agreement. Neither party shall have any liability for failure or delay in performance due to events beyond its reasonable control (“Force Majeure Events”), including but not limited to, earthquakes, storm, and other acts of God; war, terrorism, explosions, or riot; denial-of-service attacks or internet or telecommunications failures unrelated to the party’s infrastructure or internet connectivity. In the occurrence of a Force Majeure Event, the affected party is excused from performance so long as the Force Majeure Event continues in effect This Agreement, including its Cover Sheet and Standard Terms, constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.

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