TERMS AND CONDITIONS

 

  1. Eligibility; Binding Nature of this Agreement. Licensee shall only use the Materials to promote Product(s) that have won an Allure Readers’ Choice Award, Best of Beauty Award and/or Breakthrough Award within the past three (3) years in accordance with this Agreement. By obtaining, using or paying for a license to the Materials, Licensee agrees to the license terms contained herein, including payment of the License Fee (as defined below) on a per-use basis, and agrees to be bound by and comply with all of the terms of the Agreement. All capitalized terms in the Basic Terms, Additional Terms and Conditions and Website shall have the respective definitions as and if set forth in the Basic Terms, Additional Terms and Conditions (including Exhibits attached) and Website. Any ambiguity, conflict or inconsistency among the Basic Terms, Additional Terms and Conditions (including Exhibits attached) and the Website shall be resolved according to the following order of precedence: 1) the Basic Terms, 2) the additional Terms and Conditions (including Exhibits attached) and 3) the Website. Notwithstanding anything to the contrary herein, to the extent the Parties separately execute a written agreement relating to the subject matter of this Agreement, such executed agreement shall govern and supersede the terms of this Agreement.
  2. License and Rights. During the Term hereof and subject to the terms and conditions of this Agreement, Licensor grants to Licensee a limited, non-exclusive, non-sublicensable, non-transferable, and revocable license to use the Materials in the Territory solely for the Licensed Use.  
    1. Materials” means the following:
      1. Seal: The seal associated with the award granted to Licensee’s product, as identified in the Basic Terms and Website.
      2. Trademark: the ALLURE trademark, which Licensee may use solely as it is incorporated into the Seal and to identify the name of the Award.
    2. Territory” means worldwide, excluding Belarus, Burma, Cuba, Iran, North Korea, Russia, Crimea/Sevastopol, Donbass, Sudan, and Syria.
    3. Licensed Use” means the use of the Materials to identify and promote specific Product(s) (as defined in the Basic Terms) as recipients of the Award(s) specified in the Basic Terms granted to the Product(s) within the past three (3) years only in the manner expressly permitted by the applicable License Type and in accordance with this Agreement.  
    4. License Type” means the different types of licenses to use the Materials that Licensor may grant, as defined in Exhibit A, but for the avoidance of doubt, under this Agreement Licensor only grants Licensee the License Type(s) specified in the Basic Terms (under “Right to use seal within”).  
  3. License Fee.  For the Licensed Use, Licensee shall pay to Licensor the Total Licensing Fee Due specified under the Basic Terms (the “License Fee”), which is non-refundable, and which shall be remitted to Licensor, regardless of Licensee’s actual use of the Materials, within thirty (30) days of Licensor’s invoice date. Licensor may immediately terminate this Agreement upon written notice to Licensee in the event Licensee fails to pay the License Fee in accordance with this Section.
  4. Limitations on Licensed Use of the Materials.
    1. Licensee may reference the name of the Award in text, provided that all mentions of the Award shall adhere to the following format and be subject to the approval process set forth in Section 7 of the Additional Terms and Conditions: [YEAR, TYPE OF AWARD, LICENSEE, PRODUCT NAME, CATEGORY (optional), MAGAZINE]. In every use of the Seal or reference to the Award, Licensee shall include the year in which the Award was granted by Licensor to Licensee and reference the magazine that granted this Award. Licensee shall not use the Materials in connection with any other award seals other than the Award specified herein. Licensee shall only use the Materials associated with each Award in connection with and in close proximity to the Product that has actually received the Award such that it is clear which Product has received the Award
    2. Licensee shall not use the Materials other than as expressly permitted in this Agreement, and all of Licensee’s use of the Materials shall be subject to Licensor’s review and approval in accordance with Section 8 of these Additional Terms and Conditions.  Unless otherwise agreed in writing by the Parties, the Materials must be used as furnished by the Licensor and in accordance with all specifications and guidelines provided by Licensor, including (without limitation) any specification as to color, font, size and proportion. Licensee shall only use the Seal as it is depicted on allurelicensing.com (including color, font and proportions) and in its entirety, and the red used in the Seal shall be PMS 485. Except as expressly permitted herein, Licensee shall not alter, revise, edit, translate, overlay type, crop, retouch, create derivative works of or otherwise change the substantive meaning of the Materials in any manner, without Licensor’s prior written consent, provided that Licensee may adjust the size of the Seal as long as it is used in its entirety. The Materials shall not appear (i) in close proximity to any third party brand(s), trademark(s), logo(s) or other intellectual property or content, or (ii) in any manner likely to cause confusion as to the origin of the Materials. 
    3. Save for its limited right to use the Materials as set forth in this Agreement, Licensee shall not in any way expressly or implicitly suggest or indicate that Licensor or any of its Affiliates sponsors, endorses or otherwise approves of its business or products or has any business relationship with or right to represent or act on behalf of Licensor or its Affiliates. Licensee shall not use the Materials in connection with any advertising or promotion except as expressly permitted herein.  Licensee shall not exploit the Materials in any way which (i) disparages, denigrates, tarnishes or reflects adversely on Licensor and/or its Affiliates (and/or any brands of Licensor or its Affiliates), or provokes any controversy, (ii) violates or infringes any intellectual property rights or other rights of Licensor or any third party, or (iii) violates any applicable law, rule or regulation (or in association with any activity that does so). 
    4. Other than the limited license granted by this Agreement, Licensee shall not claim or obtain any rights, title or interests in or to the Materials or any intellectual property of Licensor or its Affiliates (whether registered or unregistered and arising anywhere in the world) including any name, trademark, service mark, or logo of Licensor (collectively, “Marks”) or other elements related to, or appearing in, the Materials. Any benefit to and goodwill in the Marks arising from Licensee’s use of the Marks and/or Materials shall inure solely to Licensor’s benefit.  Licensee further agrees not to, and shall not permit or facilitate any third party to (i) use any other name, trademark, or logo confusingly similar to the Marks, (ii) apply to register or maintain any application or registration of any trademark or logo that is confusingly similar to the Marks, or (iii) take any action that would destroy or diminish the goodwill of any of the Marks, or (iv) incorporate any of the Marks in its corporate or trade name, or  any domain name. For the avoidance of doubt, nothing herein grants Licensee the right to make use of the Marks except as expressly provided for herein. Except to the extent expressly permitted herein, the Allure name, logo, images or editorial quotes may not be used in any materials created by or on behalf of Licensee without securing a separate license agreement from Licensor, and all such usage requests shall be directed to AllureAwards@condenast.com.
  5. Third-Party Rights. Licensor expressly disclaims any and all undertakings, representations and warranties with respect to any third party intellectual property or material incorporated in, or third party rights relating to, the Materials, including but not limited to any personality or publicity rights, intellectual property rights, real property rights, rights in any trademark and/or logos, sound recordings, objects or other rights of third parties (“Third Party Materials”).  Use of any such Third Party Materials by Licensee shall be subject to any applicable third party license terms or clearances between the Licensee and the third party.  Licensee expressly acknowledges and agrees that it is Licensee’s responsibility to obtain all permissions and clearances as may be necessary or appropriate in connection with its use of any such Third-Party Materials.
  6. Representations, Warranties, Covenants and Indemnity
    1. Except as otherwise set forth herein, Licensor hereby represents and warrants that:
      1. Licensor has the authority to enter into this Agreement with respect to the Materials.
      2. Subject to Section 5, Licensor owns or controls the rights in and to the Materials, as originally provided to Licensee by Licensor, necessary to grant Licensee the license to use the Materials pursuant to the terms of this Agreement.
    2. Licensee hereby represents, warrants and covenants that:
      1. Licensee has the full and exclusive right and authority to enter into this Agreement and to make the representations, warranties and agreements contained herein.
      2. Licensee is entitled to enter into this Agreement because one or more of its products won an Allure Readers’ Choice Award, Best of Beauty Award and/or Breakthrough Award within the past three (3) years, or it is acting as an agent on behalf of a third party whose product(s) won such an Award within the past three (3) years.
      3. Licensee agrees to use the Materials solely in accordance with the terms and conditions of this Agreement.
      4. Licensee shall secure all third party permissions in connection with any Third-Party Materials used in the Materials, as appropriate or necessary for its use of the Materials.
      5. Licensee shall be solely responsible for any third party claims arising out of Licensee’s distribution, exploitation, advertising, marketing, publicity, promotion of the Materials as authorized herein. 
      6. Licensee shall not infringe any third party intellectual property or other rights in connection with its use of the Materials, or otherwise incorporate the Materials into any works that infringe third party intellectual property or other rights.     
      7. If Licensee is entering into this Agreement for the benefit of a third party who is the actual recipient of the Award, or as an agent on behalf of such third party, then Licensee (x) represents and warrants that such third party has authorized Licensee to enter into this Agreement, that the license granted hereunder is solely for the benefit of such third party, and that such third party has agreed to be bound hereby; (y) represents, warrants and covenants that the Materials shall be used solely for the benefit of such third party, and that Licensee will not use the Materials for the benefit of any other person or entity (including itself) without entering into a separate license agreement with Licensor; and (z)  such third party shall be jointly and severally liable for any breach of the terms of this Agreement by Licensee. Licensee shall notify Licensor if it, or such third party that it represents who is making use of the Materials pursuant to this Agreement (if applicable), undergoes a change of control.
    3. Indemnification.
      1. Licensee agrees to indemnify, defend, and hold harmless Licensor and its Affiliates, and its and their respective officers, directors, employees, agents, successors and assigns from and against any loss, damage or expense, including court costs and reasonable outside attorneys’ fees, suffered or incurred as a result of or relating to any third party claims arising out of or relating to any breach or alleged breach of this Agreement by Licensee, including without limitation Licensee’s representations, warranties, and/or covenants.
      2. The indemnified Party shall promptly provide written notice to the indemnifying Party of any claims for which it is seeking indemnification, provided that failure to provide such notice shall not relieve the indemnifying Party of its indemnification obligations except to the extent it is materially prejudiced by such failure to provide notice. The indemnified Party shall provide reasonable assistance to defend or settle any such claims as requested by the indemnifying Party at the indemnifying Party’s expense. The indemnifying Party shall have primary control of the defense and all related settlement negotiations, provided that the indemnified Party shall have the right to participate in the defense and settlement negotiations of such claim through its own counsel at its own expense. The indemnifying Party shall not agree to any settlement that imposes any obligation or liability on the indemnified Party without the indemnified Party’s prior written consent.
    4. As between Licensor and Licensee with respect to the Materials and the license granted in this Agreement, the Parties acknowledge and agree that, subject to Section 5, Licensor and its successors and assigns own and/or control all rights, title and interests with respect to the Materials and all elements and components thereof and relating thereto, along with any goodwill arising from the Marks and Materials. Any rights not granted herein are expressly retained by Licensor, and Licensee shall not acquire any ownership or other rights in or to the Materials as a result of its use of the Materials.
  7. Remedies. Licensee acknowledges and agrees that any breach by Licensee of this Agreement will cause Licensor irreparable harm such that money damages alone will be inadequate, and therefore, that Licensor and its Affiliates, successors, assigns and licensees will be entitled to seek injunctive or equitable relief (without obligation of posting bond or surety or establishing harm) in addition to all other remedies available at law or in equity, in any court of competent jurisdiction.
  8. Creative Approval. Licensee shall submit any content it creates using the Materials, including any creative materials or mock-ups depicting the Licensed Use (“Mock-Ups”), whether print or digital, to Licensor for Licensor’s written approval prior to reproducing, publishing, performing, publicly displaying or otherwise exploiting such Mock-Ups and Materials. Licensee shall submit Mock-Ups for approval to Licensor and include a description of the intended use of the Materials, including where, when and in what context the Materials will appear.  In the event Licensor does not respond with its written approval within ten (10) business days, the Mock-Ups shall be deemed disapproved. Any modifications to any previously approved Mock-Ups require Licensor’s further prior written approval in each instance, in accordance with the procedure set forth in this Section 8.
  9. Term and Termination. This Agreement takes effect from and including the Date specified in the Basic Terms (the “Effective Date”) and shall continue, subject to earlier termination in accordance with its provisions, for the term specified for each Seal under the Basic Terms. Licensor may terminate this Agreement for convenience, at any time, upon fifteen (15) days’ written notice to Licensee. Either Party may terminate this Agreement immediately upon written notice for the other Party’s material breach of the Agreement. Upon expiration or earlier termination of this Agreement, (i) Licensee’s rights to use the Materials shall immediately terminate, (ii) Licensee shall cease all use of the Materials, (iii) Licensee shall have fifteen (15)  days from the date of termination or expiration to destroy any physical copies or digital replicas of the Materials, including copies of any Mock-Ups incorporating the Materials, and (iv) Licensee shall immediately remove any online Materials including any social media posts incorporating them.  
  10. Compliance.
    1. Licensee shall comply with all applicable laws in relation to its use of the Materials and this Agreement, including but not limited to (i) laws relating to anti-corruption, anti-money laundering or bribery, including in the UK, European Union, or the US and including the UK’s Bribery Act 2010 and the US’s Foreign Corrupt Practices Act 1977 (the “Anti-Corruption Requirements”), and (ii) laws relating to slavery and human trafficking, including the UK, European Union and US, including, as applicable, the UK’s Modern Slavery Act 2015 and US’s Victims of Trafficking and Violence Protection Act of 2000. Licensee shall not take or knowingly permit any action to be taken that would or might cause or lead Licensor or any of its Affiliates to be in violation of any applicable laws. Licensee represents and warrants it has complied with the Anti-Corruption Requirements in the process leading to this Agreement. Licensee represents and warrants (by way of continuing warranty throughout the term of the Agreement) that it is not, and none of its Affiliates, subcontractors or personnel is, subject to any form of sanction or embargo under the law of any jurisdiction. 
    2. Licensee shall not, and shall procure that its personnel shall not, engage in any activity, practice or conduct which would constitute tax evasion and promptly report to Licensor any request or demand from a third party to facilitate the evasion of tax, in connection with the performance of this Agreement. 
    3. Licensee acknowledges Licensor’s approach to sustainability as set forth in the Condé Nast Sustainability Strategy (https://www.condenast.com/sustainability-strategy), as may be updated from time to time.
    4. Licensee agrees to notify Licensor in writing if it becomes aware of any breach of this Section 10 or has reason to believe that it has received a request or demand for any undue financial or other advantage in connection with performance of this Agreement. 
  11. Confidential Information. Licensee shall not at any time during this Agreement, nor for a period of five (5) years after termination or expiry of this Agreement, disclose to any person any confidential information concerning this Agreement, including the terms and existence of this Agreement, and the business, affairs, customer, clients or suppliers of Licensor or its Affiliates. Licensee may disclose Licensor’s confidential information: (a) to its employees, officers, representatives, or advisers who need to know such information for the purposes of exercising Licensee's rights or carrying out its obligations under or in connection with this Agreement (provided that Licensee shall be responsible for any breach of this Agreement by such persons) and/or for bona fide record keeping and administrative purposes, and (b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority, provided that Licensee must provide written notice to Licensor in advance of such disclosure (to the extent legally permissible) to enable Licensor to seek a protective order to prevent such disclosure, and only disclosure such information that it is required to disclose.
  12. Notices. Any notice given to a Party under or in connection with this Agreement shall be in writing and shall be: (a) delivered by hand or by pre-paid first class post or other next working day delivery service to Miranda Muscente, Senior Manager, Content Licensing, Advance Magazine Publishers Inc, One World Trade Center, New York, NY 10007, or such other address as may be provided by Licensor from time to time (in the case of Licensor), or Licensee’s contact information provided on the Invoice (in the case of Licensee); or (b) sent by email to allureawards@condenast.com, or such other email as may be provided by Licensor from time to time, with a copy to GC@condenast.com (in the case of Licensor), or Licensee’s email address provided on the Invoice (in the case of Licensee). Any notice shall be deemed to have been received: (i) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; (ii) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second business day after posting or at the time recorded by the delivery service; or (iii) if sent by email, at 9.00 am on the next business day after transmission. A copy of all notices sent to Licensor must be sent to GC@condenast.com. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
  13. Miscellaneous
    1. Affiliates” means, in relation to Licensor, any entity that directly or indirectly controls, is controlled by, or is under common control with Licensor from time to time, and any entity operating under the Condé Nast brand or controlled by any such entity, and in relation to Licensee, any entity that directly or indirectly controls, is controlled by, or is under common control with Licensee from time to time. In this Section “control” means the direct or indirect ownership of more than 50% of the voting shares in any entity or the power to direct or cause the direction and management of the policies of an entity, whether as a result of the ownership of shares, control of the board of directors, contract or any powers conferred by the articles of association or other constitutional documents. 
    2. This Agreement constitutes the entire agreement between the Parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter; provided that in the event the Parties have separately negotiated and executed an agreement relating to the subject matter of this Agreement, the separately negotiated and executed agreement shall govern.  Any modification, waiver, amendment or termination of this Agreement must be in writing, signed by both Parties. No failure or delay by any Party in exercising any right hereof shall operate as a waiver thereof.  If any provision of this Agreement is found to be invalid, such provision shall be severed to the minimum extent necessary for the remaining provisions to be enforceable.
    3. Licensee may not assign or transfer any or all of its rights or obligations under this Agreement, in whole or in part, without the prior written consent of Licensor. Licensor may assign or otherwise transfer this Agreement to a subsidiary or Affiliate, or pursuant to a merger, sale or other transfer of all or substantially all of the assets of the business to which this Agreement relates. Any permitted assignment is subject to the terms and conditions of this Agreement, and any assignment made in violation of this Agreement shall be deemed invalid. 
    4. The Parties hereto are acting as independent contractors with respect to one another, and no employee of either shall be deemed to be in the employ of the other, nor shall either Party have any right or authority to act on behalf of the other beyond that expressly granted herein.  Nothing contained herein or done pursuant hereto shall be construed to create a joint venture or partnership between the Parties, or create any relationship of principal and agent or employer and employee. 
    5. This Agreement shall be governed by the laws of the State of New York as it is applied to agreements entered into and to be performed entirely within such State without regard to conflict of laws principles. Any action or proceeding between the Parties relating to this Agreement, including any alleged breach hereof, may only be brought in the state or federal courts of New York County, New York, and both Parties consent to the exclusive jurisdiction of such courts. 
    6. The continuing obligations of Licensee, including but not limited to those under Sections (including sub-sections thereof) 6(b), 6(c), 6(d), 7, 9, 11, 12, and 13 shall survive termination or expiration of this Agreement. 
    7. This Agreement may be signed in any number of counterparts (including via facsimile or .pdf), each of which shall be deemed original, with the same effect as if the signatures thereto and hereto were upon the same instrument.

 

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EXHIBIT A

 

License Types


 

  • Digital Marketing:  Brand website/O&O, email blasts, and organic social media posts, product pages on retailer websites
  • Digital Advertising*:  Online, mobile and video digital media campaigns, other video content, e-tailer iMedia banners/ad units, and sponsored/paid social media posts
  • Print Marketing:  In-store displays, retail signage, point-of-purchase, trade show signage, counter cards, shelf talkers, and product information brochures
  • Print Advertising:  Print ads, direct mail, circular, FSI, outdoor media (including billboards, taxi tops, mall kiosks)
  • Broadcast Advertising:  Commercials, TV segments
  • Digital Bundle*:  Includes all Digital Marketing & Digital Advertising
  • Marketing Bundle:  Includes all Print Marketing & Digital Marketing
  • All Media*:  Includes all Unlimited Digital, Unlimited Print, and Broadcast Advertising
  • Product Packaging: Printing on-pack, stickering, and hangtags

* Usage of a Digital Advertising license requires a $25k minimum media investment with Condé Nast. The license does not include ad serving fees. Media programs must launch preferably before or in conjunction with advertising boost timing.