PEOPLEJAM, INC
3212 NEBRASKA AVE.
SANTA MONICA, CA 90404

AFFILIATE LINKAGE AND ADVERTISING AGREEMENT

PLEASE READ VERY CAREFULLY THESE TERMS AND CONDITIONS BEFORE REGISTERING FOR THE PEOPLEJAM AD NETWORK PROGRAM. PARTICIPATION IN THE PEOPLEJAM AD NETWORK PROGRAM INDICATES THAT YOU ACCEPT THESE TERMS AND CONDITIONS. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS, PLEASE DO NOT REGISTER FOR OR PARTICIPATE IN THE PEOPLEJAM AD NETWORK PROGRAM.

This agreement (“Agreement”) by and between Publisher and PeopleJam, Inc. (“PeopleJam”) (together, the “Parties”) consists of these Terms and Conditions and the accompanying attachments, which are incorporated in full by this reference. “You” or “Publisher” or “Affiliate” means any entity identified in the enrollment form submitted by the same or affiliated persons, and/or any agency or network acting on its (or their) behalf, which shall also be bound by the terms of this Agreement. In the event of a conflict between these Terms and Conditions and the terms of the accompanying attachments, these terms and conditions shall control. The Agreement includes the following sections:

1. Engagement
2. Advertising Services
3. Affiliate Publisher Editorial Services
4. Compensation and Revenue Share
5. Copyrights, Linking and Licenses
6. Mutual Representations and Warranties
7. Indemnification
8. Term and Termination
9. Specific Performance
10. Limitation of Liability
11. Entire Agreement, Amendment
12. Severability
13. Notices
14. Assignment
15. No Joint Venture
16. Governing Law
17. Successors and Assigns
18. Counterparts

Attachment A: PeopleJam Editorial Standards for Linked Affiliates

Attachment B: comScore Networks TAL: Traffic Assignment Request for comScore
Networks Reporting

Attachment C: Mutual Nondisclosure Agreement

1. Engagement.

PeopleJam owns and operates a consumer website that delivers Life Improvement information, videos and content combined with a social networking platform, all available at www.peoplejam.com and through various feeds and affiliated websites.

PeopleJam further operates an advertising network (“PeopleJam Ad-Network”) through which PeopleJam uses an advertising platform (“PeopleJam Ad-Platform”) and sells and manages advertising and sponsorships on web properties that focus on some form of Life Improvement or Personal Growth.

Publisher/Affiliate operates, authors, updates, brands and oversees website(s) (“Affiliate Website(s)”) with a focus on some form of ‘Life Improvement’ or Personal Growth or e-commerce in an affiliate market that is of interest to PeopleJam’s current and future users.

PeopleJam and Affiliate have entered this Agreement with the goals of growing the audience for the Affiliate Websites, growing PeopleJam’s overall reach to users, and deriving mutual financial benefit.

The Parties agree to collaborate to deliver the following services, as specified below and in the Attachments hereto.

2. Advertising Services.

A. Affiliate hereby grants PeopleJam an exclusive, worldwide right to act as the Affiliate’s advertising-network. PeopleJam will manage and attempt to sell all advertising and sponsorships on the Affiliate Websites (“PeopleJam Services”). As part of the PeopleJam Services, PeopleJam shall sell and make available marketing messages from third parties and from PeopleJam in forms such as but not limited to: banners, text links, video streams, pre-rolls, headline links, sponsorships, buttons and other such creative units determined by PeopleJam and its advertisers (“Advertising”).

For clarity purposes, Affiliate is NOT granting PeopleJam exclusive rights to sell advertising and sponsorships on Affiliate Websites; rather PeopleJam will be the exclusive provider to Affiliate of an advertising platform such that Affiliate, by signing this Agreement, may not participate in any advertising network other than the PeopleJam Ad-Network. Ultimate acceptance of any specific advertisement or advertiser, any specific ad campaign and ad pricing are at the discretion of the Affiliate, as described below.

B. Any Advertising placed through PeopleJam will result in a Revenue Share between PeopleJam and the Affiliate as described below in Section 4.

C. Affiliate will accept Advertising on Affiliate Websites According to the following:

i. Affiliate will set a minimum price for the Advertising on the Affiliate Websites (“Floor Price”) through the PeopleJam Ad-Platform. Advertising sold at or above the Floor Price is intended to yield more Net Advertising Revenue (as defined below in Section 4) to Affiliate Websites than the revenue Affiliate Websites already collect by selling advertising in the same or similar advertising units on Affiliate Websites without PeopleJam. The decision of the Floor Price belongs solely to the Affiliate, and PeopleJam makes no guarantee that such revenue increases will occur. PeopleJam will be available to assist Affiliate in establishing an appropriate Floor Price for each ad-unit available.

ii. During the term of its Agreement with PeopleJam, Affiliate agrees to not use or deploy any advertising platform which is the same as or substantially similar in nature to the PeopleJam Ad-Network or PeopleJam Ad-Platform including but not limited to any platform offering Advertising from the following entities: Google, Yahoo! Inc., Microsoft Corporation, InterActiveCorp, AOL LLC, InfoSpace Inc, NBC Universal, AdBrite, Adify, BlogHer, BlogAds, Federated Media, Gorilla Nation, Amazon, eBay and such additional entities as PeopleJam may identify to Affiliate from time to time (each, a “Named Entity”), unless such Named Entity services are provided through PeopleJam as part of the PeopleJam Services.

iii. At the request of an Affiliate, PeopleJam, in its sole discretion, may permit an Affiliate to use or continue to use a specified service provided by a Named Entity which is similar to a component of the PeopleJam Services, which consent shall be documented in an Exhibit to this Agreement.

iv. For any Advertising that does not meet or exceed the Floor Price (“Remnant Advertising”), the following process will be managed by PeopleJam for Affiliate Websites:

a. PeopleJam will pass-through ads served by the Affiliate’s preferred service (e.g. Google Ad-Sense or similar), in which case PeopleJam will not be entitled to any revenue share; OR
b. If available, PeopleJam will offer a 3rd party advertising solution that will yield more revenue to Affiliate for Remnant Advertising than Affiliate can generate without PeopleJam through Affiliate’s preferred service, in which case the Parties will share revenue for Remnant Advertising as defined in Section 4.

v. Prior to implementing the PeopleJam Services on the Affiliate Websites and during the Term of this Agreement, Affiliate agrees to terminate any agreement with any of the Named Entities through which the Named Entities are set to provide services similar to the PeopleJam Services, except as expressly provided for herein.

A. Advertising shall include but not be limited to all or some of the following items:

i. Banners, display, text, or video, in the form of 728x90 pixels, 300x250 pixels, 160x 600 pixels and other such units requested by advertisers (“Banners”);

ii. A content module with links out to PeopleJam Network partners;

iii. Messaging or ‘badge’ provided by PeopleJam in a conspicuous area of the site, that describes the site as linked to the PeopleJam Network (“PeopleJam Network Branding”)

B. Both Affiliate and PeopleJam specifically agree to take the following actions in order to implement the PeopleJam Services:

i. Affiliate agrees to:

a. Display Advertising on pages of the Affiliate Websites according to the terms of this Agreement;
b. Post PeopleJam’s contact information in the “advertising” or “about” or similar section of the Affiliate Websites, which will include a link to a URL of PeopleJam’s choosing where certain details about the PeopleJam Network will be available;
c. Place the Advertising in the most prominent advertising units on the Affiliate Websites, including on the Affiliate Websites’ first visible page (i.e., above the “fold”, Leader Boards, Headlines, etc.);
d. Implement all tags, formatting and code necessary in order for PeopleJam to exercise its rights under this Agreement;
e. Obtain PeopleJam’s final approval of the placement, “look and feel” of the Advertising on the Affiliate Websites’ pages and all references to PeopleJam in the Affiliate Websites.
f. Provide PeopleJam with access to Affiliate Websites’ traffic and user behavior analytics in real time or as frequently as otherwise possible.
g. Place a Quantcast (www.quantcast.com) pixel as appropriate, OR;
h. Circulate to a statistically relevant sample of Affiliate’s user base, a quarterly survey created by PeopleJam to be approved by Affiliate, with approval not to be unreasonably withheld, to help both Parties and prospective advertisers learn about the Affiliate’s user base with regard to core demographic, psychographic and user behavior information within the Affiliate Websites.

ii. PeopleJam agrees to:

a. Identify and integrate the Affiliate as a member of the PeopleJam Network
b. Sell and place Advertising on the Affiliate Websites pages according to the terms herein; and
c. Share such revenue received by PeopleJam from advertisers featured in the Advertising with Affiliate consistent with the provisions of Section 4 of this Agreement; and
d. Maintain access for Affiliate to real time reporting through the PeopleJam Ad-Platform.

3. Affiliate Publisher Editorial Services.

Affiliate publisher shall operate, author, update, brand and oversee (collectively, “Publish”) the Affiliate Websites, as described below in this Section of the Agreement (“Editorial Services”). Both Affiliate and PeopleJam specifically agree to take the following actions in order to execute the terms of the Editorial Services provisions in this Agreement:

A. Affiliate agrees to:

i. Publish the Affiliate Websites as described in Attachment B;

ii. Publish the Affiliate Websites in a way that adheres at all times to basic decency and legal standards for Linked Affiliates set forth in Attachment A (“Editorial Standards”) and regularly monitor the Affiliate Websites, including all parts and aspects of the Affiliate Websites, for compliance with the Editorial Standards;

iii. Continue the general topic that is the focus of the Affiliate Websites upon the Effective Date of this Agreement or provide PeopleJam with thirty (30) days prior written notice if the focus of the Affiliate Websites is substantially changing (PeopleJam will undertake a review of the Affiliate’s new direction at that time to determine suitability for the PeopleJam Network).

iv. Allow Peoplejam to advertise, promote and publicize Affiliate publisher and Affiliate Websites on www.PeopleJam.com and in PeopleJam’s marketing and promotional activities;

v. Allow PeopleJam to link to the Affiliate Websites from all websites and affiliate publishers owned and/or managed in any way by PeopleJam and from all other Affiliate Websites;

vi. Take commercially reasonably measures to maintain the web server supporting the Affiliate Websites in order to ensure that the Affiliate Websites are available twenty-four (24) hours a day, every day of the year. Affiliate shall notify PeopleJam as soon as Affiliate publisher becomes aware that its web server is not operating and as soon as it becomes available again;

vii. Not include in its Affiliate Websites or its linkages any software, tools or text that could cause PeopleJam’s or its users’ websites, systems and networks harm from reduced system performance, system unavailability, data loss, or other damage; and

viii. Sign and maintain the comScore Networks TAL: Traffic Assignment Request for comScore Networks Reporting Attachment B(a) and the Non- Disclosure Agreement in Attachment D.

B. PeopleJam agrees that:

i. Affiliate publisher shall have complete control over the content and “look and feel” of the Affiliate Websites, excluding the Advertising, subject to the terms of this Agreement;

ii. PeopleJam shall advertise, promote and publicize Affiliate publisher and Affiliate Websites availability on PeopleJam.com in areas selected in PeopleJam’s sole discretion that may include but shall not be limited to:

a. Placement in the PeopleJam Network channel or other such area on PeopleJam.com, if such an area is offered by PeopleJam;
b. Placement in the PeopleJam Network directory or other such area on PeopleJam.com, if such an area is offered by PeopleJam; or
c. Contextual placement throughout PeopleJam.com where appropriate and relevant to a particular page, product, or story on PeopleJam.com;

iii. Other than modifying the Advertising as explicitly described above in Section 2, PeopleJam may not otherwise change the content or meaning of the Affiliate Websites. However, if the Affiliate does not meet the Editorial Standards or other requirements for the Affiliate set forth in this Agreement (“Editorial Failure”), PeopleJam may remove the Affiliate from PeopleJam’s website and the Advertising from the Affiliate Websites without providing Affiliate with prior notice; provided that PeopleJam promptly notifies Affiliate of any such removal by email and makes reasonable efforts to reinstate the Affiliate Websites upon Affiliate’s cure of such Editorial Failure.

4. Compensation and Revenue Share.

In consideration of the obligations to be performed by Affiliate under this Agreement, PeopleJam agrees to compensate Affiliate as follows:

A. Revenue Share

i. For “Advertising”
a. Net Advertising Revenue actually received by PeopleJam from third-party advertisers for Advertising placed on the pages of the Affiliate Websites shall be shared by PeopleJam and Affiliate on the following basis: Forty-five percent (45%) to PeopleJam and fifty-five percent (55%) to Affiliate.
b. “Net Advertising Revenue” shall be defined as gross monies actually received by PeopleJam, less a 20% ad serving platform fee (“Serving Fee”). As a general rule there will be no other deductions from gross prior to calculating Net Advertising Revenue. However, in some cases, Advertising will be sourced directly through the PeopleJam Ad-Platform as opposed to other sales activities. In such instances, an additional fee (“Sales Fee”) will be deducted before calculating Net Advertising Revenue. The combined total deductions from the Serving Fee and the Sales Fee will not exceed 30% of gross under any circumstances. Additionally, the Floor Price still will apply, protecting Affiliate from having to accept any Advertising that does not meet the minimum threshold. For clarity sake an affiliate may accept or reject a campaign for any reason.

ii. For “Remnant Advertising”
a. For the placement of Remnant Advertising on the pages of the Affiliate Websites, PeopleJam will pay Affiliate the amount of revenue that is equivalent to the amount of revenue Affiliate otherwise would collect without PeopleJam PLUS fifty-five percent (55%) of any additional revenue actually received by PeopleJam, less a 20% ad serving platform fee (“Remnant Serving Fee”).

B. Payment Amount

i. The Payment Amount earned on a monthly basis will be paid no more than sixty (60) days following the last day of the calendar month in which the revenue was earned. Payments of less than $50 will not be paid to the Affiliate. Revenue will be accumulated and paid out to Affiliate once the payout amount exceeds $50.

C. Confidentiality of Fact and Amount of Payment

i. Affiliate covenants and agrees to keep strictly confidential the fact and amount of the payment under this Agreement, and shall not disclose such information to any other person or entity, unless required by applicable securities or other laws, or disclosed in confidence to Affiliate’s attorneys.

5. Copyrights, Linking and Licenses.

A. Affiliate grants to PeopleJam:

i. A worldwide, transferable, royalty-free license to link to the Affiliate Websites and to serve Advertising into the Affiliate Websites for the permitted uses set forth in this Agreement; and

ii. The right to use Affiliate’s name, likeness, photograph and biographical material in connection with all permitted uses set forth in this Agreement. The Affiliate shall be credited at all times as the publisher of the Affiliate Websites in connection with all permitted uses by PeopleJam.

iii. Except as expressly set forth in this Agreement, neither party grants the other party any other licenses to its content, proprietary materials, and intellectual property, including all copyrights, trademarks, trade names, service marks, and patents, and all such rights are reserved.

iv. PeopleJam retains the right to immediately suspend or terminate Affiliate Websites’ right to use, display or access any PeopleJam Service upon written notice to the Affiliate.

6. Mutual Representations and Warranties.

A. Each party represents and warrants to the other party that: There are no agreements or arrangements, written or oral, that would be breached upon the respective party’s execution or performance of this Agreement, that would restrict, interfere or conflict with the respective party’s obligations under this Agreement, or that would diminish the other party’s rights granted under this Agreement;

B. Each party shall comply with all the terms, conditions, obligations and restrictions in this Agreement;

C. Each party has the right, power and authority to enter into this Agreement and perform its obligations as set forth herein; and

D. Each party shall at all times be in compliance with all applicable laws, rules and regulations with respect to this Agreement.

7. Indemnification.

Each party shall defend, indemnify and hold harmless the other party, its affiliates, employees, successors and assigns, against and from any and all third party claims, liabilities, damages, fines, penalties or costs of whatsoever nature (including reasonable attorney’s fees and costs), arising out of or in any way connected with its breach of its representations and warranties under this Agreement.

8. Term and Termination.

A. This Agreement will commence on the date above and shall continue for a term of one (1) year (“Term”). This initial Term will be automatically renewed thereafter annually for Twelve (12) month periods provided that a written notice to terminate is not submitted by either party at least forty-five (45) days before the end of the Term.

B. If Affiliate fails to comply with any material obligation under this Agreement, including, but not limited to, those obligations listed in the enclosed Attachments, such failure shall constitute an event of default (“Event of Default”) and PeopleJam shall be released from all payment obligations under Section 4 of this Agreement, except to the extent such obligations are outstanding and due to Affiliate prior to the Event of Default. Upon an Event of Default, PeopleJam may terminate this Agreement effective immediately without prior notice.

C. Affiliate may not terminate this Agreement prior to the end of the initial Term; however, either party may terminate this Agreement on 30 days prior notice for any material breach by the other party of this Agreement, if the material breach is not cured within the 30-day notice period.

D. Upon termination of this Agreement at the end of the initial Term or by PeopleJam for any reason, the following shall occur:

i. All copyrights, linking and licenses granted in this Agreement cease;

ii. PeopleJam and Affiliate shall promptly remove all Advertising and the PeopleJam Network branding from the Affiliate Websites; and

iii. PeopleJam shall make a final remittance to Affiliate of Affiliate’s share of outstanding Net Advertising Revenue according to the terms of Section 4.

9. Specific Performance

The Parties hereby acknowledge and agree that the failure of any party to perform its agreements and covenants hereunder will cause irreparable injury to the other party, for which damages, even if available, will not be an adequate remedy. Accordingly, each party hereby consents to the issuance of injunctive relief by any court of competent jurisdiction to compel performance of such party’s obligations and to the granting by any court of the remedy of specific performance of its obligations hereunder, including, without limitation, with respect to obligations under this Agreement relating to Editorial and Advertising services described in Sections 2 and 3.

10. Limitation of Liability

Except for a party’s obligations under the indemnification provisions set forth in Section 7 of this Agreement, neither party nor its affiliates shall be liable or obligated under any section of this Agreement or under contract, negligence, strict liability or other legal or equitable theory for any special, incidental or consequential damages (including any loss of revenue, profits or data) exemplary or punitive suffered or incurred by the other party or its affiliates.

11. Entire Agreement, Amendment

This Agreement represents the entire agreement between Affiliate and PeopleJam with respect to the subject matter hereof and thereof and supersedes all previous oral or written communications, representations or agreements. This Agreement may be modified only by writing executed by a duly authorized company officer.

12. Severability

To the extent that any of the provisions of this Agreement, or any word, phrase, clause, or sentence in it shall be found to be illegal or unenforceable for any reason, such provision, word, clause, phrase or sentence shall be modified or deleted in such a manner so as to make the Agreement as modified legal and enforceable under applicable laws, and the balance of the Agreement or parts thereof shall construed as severable and independent and not be affected thereby.

13. Notices

All notices or other communications required under or regarding this Agreement shall be in writing and shall be deemed sufficient when delivered personally or sent by electronic mail or facsimile (in each case, with prompt confirmation of receipt) or upon deposit in the U.S. mail, as certified or registered first class mail, with postage prepaid, and addressed, if to PeopleJam at its principal place of business set forth in the preamble of this Agreement and if to Affiliate at Affiliate’s place of business set forth in the signature page of this Agreement, unless, in either case, written notice of another address shall have been provided to the other party in the manner provided for in this Section. If mailed, any such notice will be considered to have been given one business day after it was mailed, as evidenced by the postmark.

14. Assignment

This Agreement may not be assigned by Affiliate without the Company’s prior written consent. This Agreement may be assigned by the Company without Affiliate’s consent.

15. No Joint Venture

Nothing contained in this Agreement will be construed as creating a joint venture, partnership or employment relationship between the Parties hereto, nor will either party have the right, power or authority to create any obligation or duty, express or implied, on behalf of the other.

16. Governing Law

This Agreement shall be governed by the laws of the state of California, without regard to the choice of law provisions thereof, which state shall have jurisdiction of the subject matter hereof.

17. Successors and Assigns

The terms of this Agreement shall bind, and shall inure to the benefit of, the permitted successors and assigns of the parties hereto.

 

Attachment A

PeopleJam Editorial Standards for Linked Affiliates and PeopleJam.com Websites

These Editorial Standards exist to help the Affiliate and PeopleJam achieve their goals of growing the audience for the Affiliate Websites, growing PeopleJam’s overall users, and deriving mutual financial benefit. As outlined below, these Editorial Standards set forth some known limits for editorial content. The list of standards specified below, however, is not a comprehensive listing of prohibited conduct by Affiliate. The Affiliate remains fully responsible for ongoing monitoring of content on the Affiliate Websites to ensure adherence with the requirements of this Agreement. The Editorial Standards include the following:

1. Unacceptable Content.

The Affiliate Websites, including all information, text, images, photographs, graphics, e-mail addresses, web pages, comments and reviews, discussion board postings and other materials contained in or linked to the Affiliate Websites, may not contain, publish, link to, sell or otherwise distribute any “Unacceptable Content.” Unacceptable Content is defined as content that:

a. Is lewd, profane, obscene, or indecent, including any content that is violent or pornographic or that contains nudity, explicit violent or sexual material, or depictions of violent or sexual acts;
b. Is harassing, threatening, abusive, inflammatory or otherwise objectionable, including content used to harass, stalk or threaten a person;
c. Is unlawful or that could facilitate the violation of any applicable law, regulation or governmental policy;
d. Offers or disseminates any fraudulent goods, services, schemes or promotions, including any make-money-fast schemes, chain letters, or pyramid schemes;
e. Is libelous, defamatory, knowingly false or misrepresents another person;
f. Infringes upon the intellectual property rights of any third party, including the copyrights, trademarks, trade names, trade secrets or patents of such third party;
g. Is harmful to PeopleJam’s or any other party’s systems and networks, including any transmissions which may damage, interfere with, surreptitiously intercept, or expropriate any system, program, data or personal information;
h. Violates any obligation of confidentiality;
i. Violates the privacy, publicity, moral or any other right of any third party; and

2. Prohibited Activities.

In addition to the restrictions set forth in this section, Affiliate agrees that it will not engage in any of the following prohibited activities and such other activities which PeopleJam may reasonably specify:

a. With respect to the PeopleJam Services, edit, modify, truncate, filter or change the placement or look and feel of any Advertising;
b. Frame any destination page;
c. Redirect an end user away from the destination page, provide a version of the destination page different from the page that an end user would access by going directly to the destination page, intersperse any content between an advertisement and the corresponding destination page;
d. Display any Advertising in pop-up, pop-under, exit windows, expanding buttons, or animation;
e. Produce or distribute any software, or permit any of its software to be distributed with software, that prevents the display of ads provided by PeopleJam (such as by way of blocking or replacing ads);
f. Encourage or require end users or any other persons, either with or without their knowledge, to click on advertising results through offering incentives or any other methods that are manipulative, deceptive, malicious or fraudulent

 

Attachment B

Traffic Assignment Request for comScore Networks Reporting

I, [name], [title] of Company A, certify that Company A

a) is the majority owner of the URLs listed below
b) enjoys a legitimate business relationship with Company B justifying the aggregation of this traffic, and
c) requests assignment of the traffic to these URLs from Company A to Company B in the comScore Networks syndicated audience measurement reports.

In requesting this assignment, I understand that Company A will not receive credit for traffic to these URLs in the syndicated audience reports for those entities where Company B elects to include these URLs. These URLs may not be assigned to any other company. In the event that comScore Networks receives multiple requests for assignment of the same URL, comScore will review and honor the request most recently received.

I understand that this request is subject to review by comScore Networks to determine that the assignment of traffic is consistent with comScore Networks reporting rules. comScore Networks retains the right in its sole discretion to refuse the requested assignment if such assignment would in fact be inconsistent with comScore Networks reporting rules. If necessary, comScore Networks may require additional documentation to verify ownership of the URLs before granting this request. For example, if Company A is not the named registrant of the URLs listed below, Company A must provide documentation demonstrating that the registrant of those URLs is (1) owned or (2) employed by [Company A].

I understand that acceptance of this letter by comScore Networks, Inc. imposes no legal liability whatsoever on comScore Networks, Inc. for damages, whether actual, incidental or consequential, relating to the maintenance or reporting of the attached URLs. I understand that Company A is fully responsible for timely notification to comScore Networks, Inc. of any updates to the list below, including, but not limited to, changes in ownership of any of those URLs.

Company A shall indemnify and hold harmless comScore Networks from and against any claims, liabilities, costs and expenses of any kind (including reasonable attorney’s fees and expenses) arising out of any allegation of improper assignment of the URLs pursuant to this letter.

 

Attachment C

PEOPLEJAM MUTUAL NONDISCLOSURE AGREEMENT

THIS MUTUAL NONDISCLOSURE AGREEMENT (“Agreement”), is made and entered into between PeopleJam, Inc.., a Delaware corporation, with its principal office at 3212 Nebraska Ave, Santa Monica, CA 90403 ("PJ”), and Publisher/Affiliate ("Company").

1. The purpose of the disclosures hereunder shall be to discuss a potential business relationship between the parties. Each party agrees to use all Confidential Information and Trade Secrets of the other party only for such purpose and only in accordance with the terms of this Agreement.
2. The term "Confidential Information" shall mean and refer to all confidential or proprietary information (other than Trade Secrets, as defined below), documents and materials, whether printed or in machine-readable form or otherwise, disclosed during the Disclosure Period designated below, and designated by the disclosing party as "Confidential" hereunder. All Confidential Information shall be submitted in writing by the disclosing party to the receiving party and marked "Confidential" or if transmitted orally or visually, shall be identified at that time as "Confidential" and shall be confirmed as confidential in a written summary within ten (10) days of the disclosure. In addition, the definition of “Confidential Information” shall include those items defined as “Trade Secrets” in Section 3, if it is judicially determined that any such items are not trade secrets, as defined by applicable law, and such items otherwise meet the definition of “Confidential Information” as contained in this Section 2.
3. The term “Trade Secrets” shall mean that portion of Confidential Information which constitutes trade secrets, as defined by applicable law and including, without limitation, confidential computer programs, software, designs, processes, procedures, equipment, data, reports, product specifications, formulas, improvements, on-line terminal designs, software applications and knowledge of the existence of any existing or proposed contracts with third parties.
3. The term for disclosure of Confidential Information and Trade Secrets shall be from the period beginning on the Effective Date ending one (1) year thereafter ("Disclosure Period"). The parties agree that with respect to the other party's Confidential Information and Trade Secrets each will: (i) disclose such Confidential Information and Trade Secrets to only those employees and prospective employees whose duties justify a "need-to-know" to effectuate the purpose of this Agreement; (ii) ensure that each document containing the Confidential Information and Trade Secrets made available to any employee of a receiving party bears a legend to the effect that the information contained therein is proprietary to the disclosing party; and (iii) use the same degree of care and scrutiny as the receiving party would use with respect to its own Confidential Information and Trade Secrets to avoid disclosure. With regard to each item of information or data constituting a Trade Secret, the covenants in this Section 3 shall apply at all times during the Disclosure Period and for as long after the Disclosure Period as such item continues to constitute a trade secret under applicable law; and with regard to any Confidential Information, the covenants in this Section 3 shall apply at all times during the Disclosure Period and for two (2) years after the termination of the Disclosure Period. At the disclosing party's request, the receiving party shall return promptly to the disclosing party any and all portions of the Confidential Information and Trade Secrets disclosed under this Agreement, together with all copies thereof.
4. It is understood, however, that the restrictions in Section 3 shall not apply to any portion of the Confidential Information which: (i) was previously known to a receiving party without obligations of confidentiality; (ii) is obtained after the date hereof from a third party which is lawfully in possession of such information and not in violation of any contractual or legal obligation to a disclosing party with respect to such information; (iii) is or becomes part of the public domain through no fault of receiving party or its employees; (iv) is independently ascertainable or developed by receiving party or its employees; (v) is required to be disclosed by administrative or judicial action provided that the receiving party immediately after receiving notice of such action notifies disclosing party of such action to give disclosing party the opportunity to seek any other legal remedies to maintain such Confidential Information in confidence; or (vi) is approved for release by written authorization of a disclosing party.
5. Each party acknowledges and agrees that all Confidential Information and Trade Secrets is provided without any representation or warranty, express or implied, as to the accuracy or completeness thereof.
6. Subject to the terms and conditions of this Agreement, discussions and/or communications between the parties hereto will not serve to impair the right of either party to develop, make, use, procure, and/or market products or services now or in the future which may be competitive with those offered by the other, nor require either party to disclose any planning or other information to the other.
7. For a period of one year following the Effective Date, neither party will directly and knowingly recruit or solicit any employee of the other party with whom the party has had direct contact regarding the disclosures hereunder, so long as the employee is employed by such other party. In addition, neither party will directly and knowingly induce or attempt to induce any employee of the other party with whom the party has had direct contact regarding the disclosures hereunder to terminate his or her employment with such other party. The foregoing restrictions on recruitment, solicitation efforts and inducement shall not apply to the usage of any general employment solicitation efforts such as newspaper, radio and Internet advertising.
8. All the Confidential Information and Trade Secrets disclosed, delivered to or acquired by a receiving party from a disclosing party hereunder, shall be and remain the sole property of the disclosing party and that no license or conveyance of any right, including any intellectual property right, to the receiving party in such Confidential Information of Trade Secrets is granted or implied under this Agreement.
9. No modification of this Agreement shall be effective unless in writing and signed by all parties hereto. Notices hereunder shall be in writing and shall be deemed duly given upon delivery to each of the parties at the addresses listed above. Any party's waiver of any breach or failure to enforce any of the terms and conditions of this Agreement at any time shall not in any way affect, limit or waive such party's right thereafter to enforce and compel strict compliance with every term and condition hereof. This Agreement shall be construed and enforced in accordance with the laws of the State of California, without regard to its conflict of laws principles. The parties hereby consent to submit to the jurisdiction of the federal and states courts located in the State of California and any action or suit under this Agreement shall only be brought by the parties in any federal or state court with appropriate jurisdiction over the subject matter established or sitting in the State of California. Each party agrees that any breach of this Agreement will cause a disclosing party substantial and irreparable damages and, therefore, in the event of any such breach, in addition to other remedies which maybe available, the disclosing party shall have the right to specific performance and other injunctive and equitable relief. This Agreement constitutes the complete agreement among the parties hereto and supersedes and cancels any and all prior communications and agreements between the parties with respect to the subject matter hereof.
IN WITNESS WHEREOF, the parties hereto by their duly authorized representatives have executed this Mutual Nondisclosure Agreement upon the Effective Date.

PeopleJam, Inc.