These terms and conditions shall govern the relations of TerserTude and Publisher ("Publisher"), as may be modified specifically in a written agreement between the parties.
1.TerserTude Network & Operations.
1.1 Non-Exclusive Representation. Subject to the terms and conditions of this Agreement, TerserTude Ltd. ("TT") agrees to include the Publisher Properties listed above (the "Publisher Properties"), as modified from time to time by written consent of the parties (including via email), in the TT network of properties (the "TT Network") and Publisher agrees that TT shall have the nonexclusive right to sell and serve Advertising to the Publisher Properties. As used in this Agreement, "Advertiser" means any entity or person that provides Advertising for distribution on the TT Network, including without limitation any agency or marketing representative that provides Advertising on behalf of its clients, as well as any interactive advertising network providing third party Advertising for the TT Network. "Advertising" means any type of advertising, marketing or promotional materials displayed on or through the TT Network, including but not limited to audio and video files, pre-roll videos, mid-roll videos, post-roll videos, rich media, content, text and/or graphic files, banners, and mobile advertisements which are sold directly or indirectly by TT.
1.2 Membership. Membership in the TT Network is subject to TT's approval in its sole discretion. TT may terminate Publisher's membership in the TT Network at any time upon written notice effective as of the date specified in such notice. Publisher agrees to provide TT with prompt written notice of any changes to the content of any Publisher Properties that substantially alter the form or character of such Publisher Properties. Publisher acknowledges that TT may include a variety of businesses in the TT Network, including businesses engaged in activities that may be similar to those of the Publisher.
2.Optimizing Advertising Inventory.
2.1 Requirements. To enable TT to maximize revenues derived from the Publisher Properties, Publisher agrees, at a minimum: (a) that Advertising may not be placed: (i) on any root URL not specifically approved for membership within the TT Network, provided that TT provides Publisher a list of such prohibited root URLs, (ii) on pages with no content, in email messages, or on pages of the Publisher Properties not under the direct control of the webmaster (such as message boards and chat rooms), (iii) on advertising bars or surf bars or other downloadable applications, or (iv) on administrative pages (such as help screens, thank-you pages, log-in pages, error pages and the like)..
2.2 Tagging. Publisher agrees to use its reasonable commercial efforts to code the pages of the Publisher Properties with the tags (or similar or successor tags or technology provided by TT from time to time ("Tags")) within five (5) business days of receipt provided they are not cumbersome or interfere with other similar tags, and to maintain such Tags throughout the Term of this Agreement. Publisher agrees to implement Tags in the exact form provided by TT, and Publisher understands that any modification made by Publisher to the Tags provided by TT may result in ad serving errors, counting errors and other discrepancies for which TT will not be liable. If Publisher approves any Advertising that requires Publisher to make additional modifications to the Publisher Properties or otherwise change its advertising practices, Publisher agrees to take such required actions promptly and diligently. TT may require that Publisher remove certain Tags for reasons such as inventory management or to minimize the generation of system defaults. Publisher agrees to make commercially reasonable efforts to do so within two (2) days of receipt of TT's email request, and will send an email confirmation to TT upon such removal. TT shall not be liable for any claims arising from Publisher's failure to remove any requested Tags..
2.3 Review of Advertising. Publisher has the right to request TT to remove Advertising that it finds reasonably unacceptable. Subject to such right, all decisions related to the acceptance of Advertising shall be made by TT and Publisher acknowledges that TT has no responsibility for reviewing the contents of any Advertising appearing on the Publisher properties. Publisher may, at its option and in its sole discretion immediately reject the Advertising and require TT to submit other Advertising.
3.1 Net Revenue. "Net Revenue" shall mean the net amounts received from Advertisers for the sale of Advertising on the Publisher Properties.
3.2 Timing of Payments. TT shall pay Publisher the Publisher Net Revenue within the time frame set forth in the IO, and after the applicable Net Revenue was received from Advertiser. No check will be issued for any amount less than $50.00 U.S. All payments will be made in U.S. dollars ($U.S.). All unpaid earnings will rollover to the next pay period. TT is not obligated or required to bring any lawsuit or engage any collection service(s) to recover any monies owed to TT by Advertiser(s) relating to the Advertising but may not barter or otherwise treat collection of Net Revenue attributable to the Publisher different from Net Revenues attributable to any other customer. TT will make commercially reasonable efforts to recover all amounts from advertisers. TT does not represent, warrant, or guarantee that any payment will be made by any Advertiser, irrespective of whether the advertising revenue has been recognized, and TT shall not be liable to Publisher, in any way, for any non-payment by any Advertiser. If in TT's reasonable determination there has been deceptive, incentivized, mechanical, computerized or any other artificial means used to increase impressions, page views, click-throughs, or any other measure of Internet traffic at a Publisher Properties ("Deceptive Activity"), TT reserves the right to terminate this Agreement immediately upon written notice and Publisher shall forfeit all payments related to such Deceptive Activity.
3.3 Traffic; Taxes. All payments shall be based on traffic measurements and audits from TT's advertising server. Publisher must inform TT in writing of any dispute regarding any payment or measurement within thirty (30) days of receiving the payment. TT shall respond with an explanation or adjustment of the numbers, which will be binding on Publisher. Publisher assumes complete and sole responsibility for any income taxes owed by Publisher as a consequence of participation in the TT Network. Publisher agrees to provide TT with all appropriate tax information reasonably required by TT for tax reporting purposes and acknowledges that no payments will be made on accounts that have provided insufficient information.
4. Term and Termination.
4.1 Term. The initial term of this Agreement shall begin on the Effective Date and remain in effect for one (1) year (the "Initial Term"). Thereafter, this Agreement will automatically renew for successive one (1) year terms (each a "Renewal Term") unless terminated by either party upon thirty (30) days' written notice prior to the end of the Initial Term or any Renewal Term.
4.2 Termination. This Agreement may be terminated at any time by either party, effective immediately upon written notice, if the other party: (i) files a voluntary petition in bankrupt, (ii) makes an assignment for the benefit of its creditors, (iii) breaches any of the material terms of this Agreement which breach is not remedied within thirty (30) days from receipt of written notice of such breach. Notwithstanding any of the foregoing in this section, either party may terminate this Agreement at any time for any reason upon two (2) days prior written notice (including via email).
4.3 Effect of Termination. In the event of termination of this Agreement: (i) Publisher shall immediately remove all Tags from the Publisher Properties, and (ii) Sections 3.3, 4.3 and 5 through 13, together with any payment obligations incurred prior to the effective date of termination shall survive. Notwithstanding the above, to the extent that TT has entered into an agreement with an Advertiser for the display of Advertising on a particular Publisher Property, or if Publisher has otherwise provided TT with written consent to an Advertising campaign targeted to run on a specific group of Publisher Properties, Publisher agrees to maintain all Tags and comply with the other obligations described in this Agreement and/or to complete such Advertising campaign.
5.1 Publisher Representations. Publisher represents and warrants that during the Term: (i) Publisher has all necessary rights and authority to enter into this Agreement, to grant the rights granted and to perform its obligations under this Agreement, (ii) Publisher owns and/or has the right to use all materials contained on the Publisher Properties, and (iii) the Publisher Properties and the content contained on the Publisher Properties will not infringe or violate any intellectual property rights (including patents, copyrights, trademarks, rights of publicity, rights of privacy, moral rights, music performance or other music-related rights), or any other right of any third party or any applicable law, rule or regulation.
5.2 TT Representations. TT represents and warrants that during the Term TT has all necessary rights and authority to enter into and perform its obligations under this Agreement.
6. Warranty Disclaimer; Limitation of Liability.
EXCEPT AS EXPRESSLY SETFORTH IN THIS AGREEMENT, NEITHER PARTY MAKES AND EACH PARTY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, AS TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Except as otherwise expressly provided herein, Publisher acknowledges that TT is providing the services delivered hereunder, including but not limited to, the TT Network, on an "AS IS" basis. Publisher expressly disclaims any and all warranties express and implied, including without limitation any warranties of title, merchantability, and fitness for a particular purpose. TT shall not be liable for the content of any Advertising, any unavailability or inoperability of the Internet, technical malfunction, computer error, corruption or loss of information. EXCEPT WITH RESPECT TO ANY BREACH OF SECTION 5.1, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOST PROFITS, LOST REVENUES OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF SUCH DAMAGES ARE FORSEEABLE AND WHETHER OR NOT THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.1 Publisher Indemnity. Publisher shall indemnify, defend and hold harmless TT, its affiliates, Advertisers, publishers and their respective partners, agents, officers, directors and employees, from and against any loss, cost, expense, liability, injury or damage (including, without limitation, reasonable attorneys' fees and expenses) (collectively, "Losses"), whether incurred due to third party claims or otherwise, arising or resulting from or caused by any (a) allegations of breach by Publisher of any representation, warranty, or obligation in this Agreement; (b) failure to remove any Tags as requested by TT pursuant to Section 2.2; and (c) Deceptive Activity.
7.2 TT Indemnity. Subject to the provisions of Section 7 above, TT shall indemnify, defend and hold harmless Publisher, its affiliates, and their respective partners, agents, officers, directors and employees, from and against any Losses due to third party claims arising or resulting from or caused by (a) any allegations of breach by TT of any representation, warranty, or obligation in this Agreement; (b) Advertising that infringes or violates the patents, copyrights, trademarks, rights of publicity, rights of privacy, moral rights, music performance or other music related rights, or any other right of any third party or any applicable law, rule or regulation and (c) Deceptive Activity under the control or under contract with TT causing injury to the Publisher.
8. Marketing/Proprietary Rights.
In order to refine and improve advertising campaigns, TT shall own all information gathered by TT in connection with Advertising delivery to the Publisher Properties, including, without limitation, click-stream information (collectively, the "Ad Data"). Publisher shall own all right, title, and interest in and to the data provided by or collected from users in connection with their use of Publisher's Web sites, excluding the Ad Data.
Neither party may assign this Agreement to any third party without the prior written consent of the other party, provided however that either party may assign this Agreement upon notice in connection with a merger, acquisition, corporate reorganization or sale of all or substantially all of its relevant assets.. This Agreement will be binding on and will inure to the benefit of the legal representatives, successors and permitted assigns of the parties hereto.
11. Advice of Counsel.
EACH PARTY ACKNOWLEDGES THAT, IN EXECUTING THIS AGREEMENT, SUCH PARTY HAS HAD THE OPPORTUNITY TO SEEK THE ADVICE OF INDEPENDENT LEGAL COUNSEL AND HAS READ AND UNDERSTOOD ALL OF THE TERMS AND PROVISIONS OF THIS AGREEMENT. THIS AGREEMENT SHALL NOT BE CONSTRUED AGAINST ANY PARTY BY REASON OF ITS DRAFTING OR PREPARATION.
This Agreement will be governed and interpreted in accordance with the laws of the New York without reference to conflicts of laws principles. Jurisdiction and venue for all disputes hereunder shall be in New York County, New York, and the parties hereby expressly agree to such jurisdiction and venue. All notices under this Agreement will be in writing and will be delivered by personal service, confirmed fax, confirmed e-mail, express courier, or certified mail, return receipt requested, to the address of the receiving party set forth above, or at such different address as may be designated by such party by written notice to the other party from time to time. Notice will be effective on receipt. No failure of either party to enforce any of its rights under this Agreement will act as a waiver of such rights. If one or more provisions of this Agreement are held to be unenforceable under applicable law, then such provision(s) shall be excluded from this Agreement, and the balance of the Agreement shall be enforceable in accordance with its terms. TT shall not be liable for any delay or failure to perform any of its obligations set forth in this Agreement due to causes beyond its reasonable control. TT and Publisher shall each act as independent contractors. Nothing in this Agreement shall be deemed to create or construed as creating a joint venture or partnership between the parties. The financial terms and conditions of this Agreement are confidential and should not be disclosed to any third party. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and may not be modified without the prior written consent of both parties.
13. Confidential Information.
Each party shall keep the other party's Confidential Information confidential, and will not directly or indirectly: (i) divulge, distribute, disclose or make accessible to any other person, firm, partnership, corporation or other entity any Confidential Information; (ii) permit any such third-party to have access to any Confidential Information; or (iii) use the Confidential Information disclosed to it by or on behalf of the other party for any purpose other than those contemplated under this Agreement. Each party agrees that it will only transmit Confidential Information to its directors, officers, employees and representatives who need to know such Confidential Information (each of whom shall agree to abide by the terms of this Section 14), and as only as necessary for the purposes contemplated under this Agreement. "Confidential Information" means all information of, from or regarding the other party that would be understood by the parties, exercising reasonable business judgment, to be proprietary, non-public or confidential, to which each party (including its attorneys, agents and designees) has had access in connection with this Agreement, whether such information is in oral, written, graphic, electronic or machine-readable form, including, without limitation, the financial terms of this Agreement, business practices, marketing materials, business plans, prospects, financial information and material, and all other information related to the other party and the other party's business, except to the extent that such information: (i) was generally available to the public at the time of disclosure by the disclosing party; (ii) was in the possession of, or known by, the receiving party prior to its receipt from the disclosing party; (iii) is independently developed by the receiving party without the use of the Confidential Information; or (iv) becomes known to the receiving party from a source other than the disclosing party who the receiving party does not know to be under an obligation of confidentiality to the disclosing party. In the event that a receiving party is required in any judicial or governmental proceeding to disclose any of the disclosing party's Confidential Information, the receiving party shall give the disclosing party prompt written notice of such request and of the portion of Confidential Information sought to be disclosed as far in advance of the disclosure as is practicable so that the disclosing party may seek a protective order.