1. Intellectual Property.
a. Each Party will retain all right, title and interest in and to its trademarks, service marks, logos and trade names worldwide, subject to the limited license granted below.
b. Each Party hereby grants to the other a non-exclusive, limited, revocable, non-assignable license to use its trademarks, service marks, logos or trade names (“Marks”) solely for the purposes described in, and only for the Term of, this Agreement. All such use shall be in accordance with each Party's policies regarding advertising and trademark usage as reasonably communicated to each other from time to time. Upon the expiration or termination of this Agreement, each Party will cease using the other Party’s Marks, except that each Party may use the other Party’s Marks for archival or internal business purposes.
2. Term and Termination. The Term of this Agreement begins as of the date set forth above and runs until the end of the Promotional Period, except that all obligations of the Parties that remain past expiration shall be in full force and effect (including, but not limited to payment obligations of Partner, Section 4 and Sections 7- 9 inclusive). Either Party may terminate this Agreement with or without cause on ten (10) days written notice to the other Party, provided that in the case of Partner, ADDICTION TOKYO has not yet sent the Email. Notwithstanding the foregoing, in the event of a material breach of this Agreement, the non-breaching Party shall have the right to terminate this Agreement on notice to the breaching party, provided the non-breaching party has notified the breaching party of such breach and the breaching party has failed to cure such breach (if curable) within 30 days from receipt of such notice.
3. Confidentiality and Security.
a. For the purposes of this Agreement, “Confidential Information” means information about a Party's (or its or affiliated companies’) business or activities that is either designated as proprietary and confidential or information which, by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as confidential, which shall include the personally identifiable information of any ADDICTION TOKYO customers (“Customer Data”), any secret or proprietary information relating directly to either Party’s business and that of its affiliated companies, subsidiaries or suppliers, whether communicated in writing, orally, electronically or by other means, including, but not limited to, products, customer lists and other customer information, pricing policies, employment records and policies, operational methods, marketing plans and strategies, product development techniques or plans, business acquisition plans, new personnel acquisition plans, notes, analyses, forecasts, studies, methods of manufacture, technical processes, artwork, logos, trademarks, designs and design projects, inventions and research programs, trade "know-how," trade secrets, specific software, algorithms, computer processing systems, object and source codes, user manuals, systems documentation and other business affairs of each Party or such Party’s affiliated companies, subsidiaries or suppliers.
b. Confidential Information will not include information that (i) is in or enters the public domain without breach of this Agreement, (ii) the receiving Party lawfully receives from a third party which to the knowledge of the receiving Party was without restriction on disclosure and without breach of a nondisclosure obligation or (iii) the receiving Party knew prior to receiving such information from the disclosing Party or develops independently.
c. Each Party agrees (i) that it will not use or disclose to any third party any Confidential Information disclosed to it by the other Party except as expressly permitted in this Agreement and (ii) that it will take all reasonable measures to maintain the confidentiality of all Confidential Information of the other Party in its possession or control, which will in no event be less than the measures it uses to maintain the confidentiality of its own information of similar importance.
d. Notwithstanding the foregoing, each Party may disclose Confidential Information (i) to the extent required by a court of competent jurisdiction or other governmental authority or otherwise as required by law, (ii) on a “need-to-know” basis under an obligation of confidentiality to its legal counsel, accountants, banks and other financing sources and their advisors, or (iii) with the other Party’s prior written consent.
e. The terms and conditions of this Agreement will be deemed to be the Confidential Information of ADDICTION TOKYO and will not be disclosed without the written consent of ADDICTION TOKYO.
f. All Customer Data shall be owned by ADDICTION TOKYO, provided that Partner may use the Customer Data solely for its internal purposes to fulfill the redemption of the Coupon and may not otherwise use or disclose the Customer Data, directly or indirectly, individually or in the aggregate, for any other purpose. To the extent that a customer separately and directly provides Partner with any of
his/her information (“Additional Information”), Partner shall own such information and agrees that it shall (i) use all Additional Information accordance with its privacy policy and all applicable laws, (ii) only use the Additional Information as part of its general consumer database, (iii) not target such ADDICTION TOKYO customers based on their status as a ADDICTION TOKYO customer nor shall any marketing contain any direct or indirect reference to ADDICTION TOKYO or its affiliates, or (iv) not sell, transfer or rent any Additional Information either individually or in the aggregate.
g. Partner shall (a) install and maintain industry-standard security measures for Partner’s computer systems, (b) implement and maintain reasonable security procedures and practices appropriate to the nature of the information to protect all Confidential Information and any personally identifiable information obtained hereunder from unauthorized access, destruction, use, modification, or disclosure, and (c) if Partner stores, processes or transmits payment card cardholder data in connection with the Coupons, Partner shall be fully compliant with the rules and regulations of the payment card clearing networks and the requirements of the Payment Card Industry Data Security Standard, as updated or amended, or its successor.
5. Exclusivity. Partner agrees that it will not conduct a similar marketing partnership as described herein with a Competitor from the Term of this agreement plus thirty (30) days. As used herein, “Competitor” means any flash sale site similar to ADDICTION TOKYO.
6. Representations and Warranties. Partner represents and warrants to ADDICTION TOKYO that:
a. Partner has obtained all rights and necessary authorizations, consents, licenses and releases in connection with the Intellectual Property. Partner has full authority to distribute and use the Intellectual Property and has full authority and full power to grant to ADDICTION TOKYO the right to use such Intellectual Property in the manner set forth in Section 2, above.
b. The person entering into this Agreement on behalf of Partner has the authority and full power to do so, and all actions have been taken, and all approvals obtained, that are necessary to make this Agreement binding and enforceable as against Partner.
c. Partner’s performance of this Agreement is not in conflict with, and will not cause an event of default under, any agreement or instrument to which it is a party or by which it is bound.
d. Partner’s products and services (as applicable) for which the Coupons are redeemed are in compliance with all applicable laws, rules, and regulations.
e. Partner is responsible for collecting and remitting applicable sales tax to the proper taxing authority in connection with the redemption or use of the Coupons.
f. Partner will perform its obligations under this Agreement in compliance with all applicable laws, rules, and regulations.
ADDICTION TOKYO represents and warrants to Partner that:
a. ADDICTION TOKYO has obtained all rights and necessary authorizations, consents, licenses and releases in connection with its Marks and has full authority and full power to grant to Partner the right to use such Marks in the manner set forth in Section 2, above.
b. The person entering into this Agreement on behalf of ADDICTION TOKYO has the authority and full power to do so, and all corporate actions have been taken, and all approvals obtained, that are necessary to make this Agreement binding and enforceable as against ADDICTION TOKYO.
c. ADDICTION TOKYO’s performance of this Agreement is not in conflict with, and will not cause an event of default under, any agreement or instrument to which ADDICTION TOKYO is a party or by which ADDICTION TOKYO is bound.
d. ADDICTION TOKYO will perform its obligations under this Agreement in compliance with all applicable U.S. laws rules and regulations.
7. Indemnity and Limit of Liability.
a. Partner agrees to indemnify, defend, and hold harmless ADDICTION TOKYO and its affiliated companies, and their respective directors, officers, employees, contractors, stockholders, agents and representatives (the “CITY Indemnified Parties”), from and against any and all losses, damages, liabilities, penalties, costs of settlement and expenses (including, without limitation, reasonable attorney’s fees and expenses) arising from any claims, suits, proceedings, demands or causes of action (including, without limitation, governmental actions) arising out of, resulting from, or relating to (i) death, bodily injury or property damage occurring or alleged to have occurred as a result of the goods and/or services provided by Partner, (ii) the use, marketing, distribution or sale of the Coupons, (iii) any act or omission of Partner, or the employees, contractors, agents or representatives of Partner, and (iv) any actual or alleged breach of this Agreement by Partner, or the employees, contractors, agents or representatives of Partner.
b. In the event Partner fails to indemnify a CITY Indemnified Party as required pursuant to this Section 7, Partner will reimburse such CITY Indemnified Party for any and all costs and expenses, including without limitation, reasonable attorney's fees and expenses arising out of, resulting from, or relating to the CITY Indemnified Party's enforcement of such rights.
c. Partner agrees that it is Partner’s sole responsibility to track the redemption of Coupons and agrees to hold harmless the CITY Indemnified Parties for any and all costs associated with a fraudulent redemption of Coupons.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ADDICTION TOKYO WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE, INCOME OR PROFITS, LOSS OR DIMINUTION IN VALUE OF ASSETS OR SECURITIES, OR DAMAGES FOR BUSINESS INTERRUPTION OR LOSS OF USE OR DATA) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY BREACH HEREOF (REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING SIMPLE NEGLIGENCE), STRICT PRODUCT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY), EVEN IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE. The liability of ADDICTION TOKYO for any loss or damages suffered by Partner in connection with this Agreement or any failure, act, omission or breach of this Agreement by ADDICTION TOKYO shall not exceed the commission amount paid to ADDICTION TOKYO for the applicable Coupon(s) on the Site during the six months preceding the claim.
Partner acknowledges that ADDICTION TOKYO makes no warranty whatsoever with respect to the operation, availability, content or quality of the Site, the number of Coupons that may be downloaded thereon, the number of customers who may visit it, or any other factor that might affect Partner’s ability to offer or sell the Coupons through the Site. THE SITE IS PROVIDED “AS IS”, AND ADDICTION TOKYO DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, W ITH RESPECT THERETO, INCLUDING W ITHOUT LIMITATION THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NONINFRINGEMENT AND TITLE.
8. Audit Right. Partner will maintain an adequate system of internal controls over all systems and processes used and activities performed with respect to the Agreement. ADDICTION TOKYO reserves the right at all reasonable times during normal business hours, upon at least 24 hours advance notice, to audit, examine and make copies of or extracts from the books of account, systems and records maintained by Partner to the extent related to Partner’s performance under this Agreement. Partner agrees to provide full and timely cooperation during an audit. In the event that ADDICTION TOKYO identifies audit deficiencies, Partner shall prepare and implement an action plan to correct identified deficiencies within ten (10) days.
9. Miscellaneous. The relationship between the Parties is that of independent contractors and neither Party will be considered, or hold itself out as, an agent or representative of the other for any purpose. The Parties agree to do such further acts and things and to execute and deliver such additional agreements and instruments as may be reasonably necessary to give effect to the purposes of this Agreement and the Parties’ agreements hereunder. This Agreement will be binding on and inure to the benefit of the Parties and their respective successors in interest and assigns. This Agreement and the rights and obligations of the Parties will be governed by and construed according to the laws of the Commonwealth of Massachusetts, without regard to the choice of law provisions that would require the application of the laws of another jurisdiction. Partner irrevocably submits to the exclusive jurisdiction of the federal and state courts located in Boston. The provisions of this Agreement are severable, and in the event that any provision thereof is determined to be invalid or unenforceable, such invalidity or unenforceability will not in any way affect the validity or enforceability of the remaining provisions. No amendment, waiver, or discharge of any provision of this Agreement will be effective unless made in writing and signed by the Parties. This Agreement, including all documents incorporated herein by reference, constitutes the entire agreement between the Parties with respect to the subject matter thereof and supersedes all prior agreements. ADDICTION TOKYO hereby objects to and shall not be bound by any additional, different or conflicting terms contained in an order or any other document pertaining to the subject matter hereof. The term “Affiliate” means Retail Convergence.com, LP, and the term “Site” means gilt.com, giltcity.com and any other Internet or mobile web site or mobile application owned, operated or controlled by Gilt Groupe, LP, Retail Convergence.com, LP, their affiliates or a Business Associate. Partner hereby authorizes ADDICTION TOKYO to offer the Coupons by means of the Site. “Business Associate” means an entity (including an affiliate) with which ADDICTION TOKYO has a contractual co-branding, hosting, sales or other relationship pursuant to which ADDICTION TOKYO operates, hosts or contributes to a third-party web site. This Agreement may be executed in counterparts, each of which will be deemed an original, but both of which together will constitute one and the same instrument. All legal or other notices to be provided under this Agreement will be given in writing and sent by email transmission (confirmed receipt) or U.S. mail (delivery confirmation requested) or express courier to the applicable party at the following addresses (or such other address as such party may provide by written notice): (i) if to ADDICTION TOKYO, to Gilt Groupe, LP, 20 Channel Center, Boston, MA 02210, Attn: CFO with a copy to Gilt Groupe, LP, 20 Channel Center, Boston, MA 02210, Attn: General Counsel and (ii) if to Partner, to the address above. All notices will be effective on receipt.
