- Advertisements and Agreement Services
1.1. Representation, Ads and Services: Pursuant to this Agreement, Agent shall represent Company with respect to the placement of advertisements on the Company’s Websites from any exchange, network, agency, brand, or other demand-side partner (“Advertisers”), including without limitation, banner, video, and native advertisements for placement on the Websites (“Advertisements” or “Ads”) and the reporting of the results therefrom to Advertisers and the Company (collectively referred to as the “Services”). Except as specifically set forth in this Agreement, Agent shall not represent Company, and Agent has no power or authority to enter into any agreement, contract, or any other legally binding transaction on behalf of, or in any way bind, Company or any of its affiliates and shall not hold itself out to have such power or authority. Similarly, the Agent shall have no obligation to provide any services to or on behalf of the Company except as specifically stated in this Agreement.
1.2. Appointment: Company hereby appoints Agent as a non-exclusive representative pursuant to Section 1.1 to perform the Services during the Initial Term and any Renewal Term pursuant to Section 4 (the “Term”) of this Agreement.
1.3. Online Information Tracking System: Agent shall maintain an online tracking system, which identifies the number of Ad impressions served, Net Revenue earned, and average CPM, per Website, on a daily basis. Agent shall use its reasonable best efforts to ensure that the information in its online tracking system is accurate and updated daily.
1.4. Placement and Management of Ads: Agent shall notify Company in writing (including electronic communications, messages and mail) before delivering new or modified Ad types or placements and Company maintains the right to reasonably refuse to run any Ad type or placement from any Advertiser. Unless otherwise agreed, the Agent shall place and manage all Ads through its ad-server and will be responsible for ensuring Ads are served properly, on time, and appropriately targeted.
1.5. Revenue Sharing: Agent shall pay Company’s Revenue Share of all revenue invoiced or to be invoiced by the Agent to Advertisers in connection with Agent’s performance of the Services, calculated on a calendar monthly basis (“Net Revenue”).
- Billing & Payment
2.1. Agent’s Obligations: Unless otherwise agreed, Agent shall invoice and collect all revenue from Advertisers for the Services performed under this Agreement.
2.2. Collections: Agent will use commercially reasonable efforts to collect any monies owed to Agent by Advertisers. Company reserves the right to reduce any and all payments otherwise owed to Company where the Advertiser has offset corresponding payments owed to Agent. In no event shall Agent be liable to pay Company for any delay in payment or withholdings from the Advertiser. Agent’s obligations under this Agreement do not involve or include investigating or resolving any claim or dispute involving Company and any Advertiser or other third party. Company hereby agrees and acknowledges that all payments made by Agent to Company constitute a “pass through” payment of amounts owed to Agent from the Advertiser. Therefore, Company hereby agrees, acknowledges and understands that Agent shall not be responsible for any funds due Company except for those funds actually received by Agent. Agent bears no responsibility or liability to the Company for any payments due but not received.
2.3. Payment to Company:
(a) Agent shall pay Company the Net Revenue, for each calendar month as defined by the Payment Schedule following any calendar month during which the Net Revenue are generated.
(b) Company is responsible for all sales taxes, use taxes and any other similar taxes imposed by any federal, state or local governmental entity on the transactions contemplated by this Agreement, excluding taxes based upon Agent’s net income.
(d) In addition to Agent’s other rights and remedies, Agent may (i) withhold and offset any payments owed to Company under this Agreement against any fees Company owes Agent under the Agreement or any other agreement, or (b) require Company to refund Agent within 30 days of any invoice, any amounts Agent may have overpaid to Company in prior periods. If Company disputes any payment made or withheld relating to the Services, Company must notify Agent in writing within 30 days of any such payment. If Company does not do so, Company waives any claim relating to the disputed payment.
- Intellectual Property; Brand Features
3.1. Other than as set out expressly in the Agreement, neither party will acquire any right, title or interest in any intellectual property rights belonging to the other party or to the other party’s licensors.
3.2. If Agent provides Company with software in connection with this Agreement, Agent grants Company a non-exclusive, non-sublicensable license for use of such software. This license is for the sole purpose of enabling the Company to use and enjoy the benefit of the Services permitted by the Agreement. Company may not copy, modify, distribute, sell, or lease any part of the Services or included software, nor may Company reverse engineer or attempt to extract the source code of that software, unless laws prohibit those restrictions or Company has Agent’s written permission. Company will not remove, obscure, or alter Agent’s copyright notice, Brand Features, or other proprietary rights notices affixed to or contained within any Services, software, or documentation.
3.3. Agent grants Company a non-exclusive, non-sublicensable license to use Agent’s trade names, trademarks, service marks, logos, domain names, and other distinctive brand features (“Brand Features”) solely in connection with Company’s use of the Services and in accordance with this Agreement. The Agent may revoke this license at any time. Any goodwill arising from the Company’s use of Agent’s Brand Features will belong to the Agent.
- Term & Renewal
4.1. Term: This Agreement shall remain in effect for a period of one (1) year from the date , (the “Initial Term”). Either party may terminate this Agreement at any time during the Initial Term, with or without cause, by providing the other party with Thirty (30) days written notice. Unless previously terminated, upon the end of the Initial Term this Agreement shall renew for additional one (1) year terms (each a “Renewal Term”) unless and until either party terminates this Agreement by providing the other party with at least Thirty (30) days written notice, with or without cause, at any point during a Renewal Term.
4.2. Termination by Company or Agent: Either Party may terminate this Agreement by written notice to the Agent with immediate effect if any of the following events occur:
(i) Company or Agent fail to pay any amount due to the other party within ten (10) days after written notice of such nonpayment; or
(ii) Company or Agent are in material breach of any term, condition, or provision of this Agreement and such breach is not cured within ten (10) days after written notice of such breach.
4.3. Effect of Termination: As of the termination or expiration of this Agreement, Agent shall (i) immediately cease any representation of Company hereunder and cease and remove any reference to Company on Agent’s website and any other material, and (ii) within ten (10) days, provide a report on all Net Revenue and pay all amounts owed therefor or otherwise unpaid under this Agreement. Sections 1.5, 1.6, and 2 shall survive with regard to any amounts owed to Company and Sections 5, 6, 7, and 8, 9 and this Section 4.3, shall survive the termination or expiration of this Agreement.
6.1. Company agrees not to disclose Agent’s Confidential Information without Agent’s prior written consent. ” Confidential Information” includes, but is not limited to: (a) all of Agent’s software, technology and documentation relating to the Services; (b) click-through rates or other statistics relating to performance as pertaining to the Services; (c) the existence of, and information about, beta features in a Service; and (d) any other information made available by Agent that is marked confidential or would normally be considered confidential under the circumstances in which it is presented. Confidential Information does not include information that Company already knew prior to use of the Services, that becomes public through no fault of the Company, that was independently developed by Company, or that was lawfully given to Company by a third party. Notwithstanding this Section 6, Company may accurately disclose the amount of Agent’s gross payments and related advertising metrics resulting from Company’s use of the Services.
- Representations, Warranties and Covenants
7.1. Company hereby represents, warrants and covenants that: (i) Company is the owner of the Websites or legally authorized to act on behalf of the owner of such Websites for the purposes of this Agreement; and (ii) Company has all necessary rights and authority to enter into this Agreement and place advertising, and authorize the placement of advertising on the Websites.
7.2 Agent hereby represents, warrants and covenants that: (i) Agent will perform all of its obligations and activities in a workmanlike professional manner in accordance with all applicable law and Agent’s legal obligations; and (ii) Agent has all necessary rights and authority to enter into this Agreement and place advertising, and authorize the placement of advertising on the Websites.
8.1. Each Party (the “Indemnitor”) shall indemnify, defend, and hold harmless the other Party, its affiliated companies, and their successors and assigns (the “Indemnitees”) from and against any and all demands, judgments, losses, costs, expenses (including, but not limited to, the cost of obtaining an opinion of counsel in response to a notice of potential infringement of the rights of any other person or organization), obligations, liabilities, damages, fines, recoveries and deficiencies, including without limitation interest, penalties, reasonable attorneys’ fees and costs asserted by a third party unaffiliated with either Party (collectively, “Losses”) in connection with a claim, action, suit or proceeding made, brought or commenced by a third party other than an affiliated company of the indemnified Party (each, a “Claim”) that arise, result from, or relate to the breach by the Indemnitor of any of the Indemnitor’s representations, warranties, or covenants set forth in this Agreement. The Indemnitees shall give the Indemnitor prompt written notice of any Claim, and the Indemnitor shall have the right to control any defense against and settlement of any Claim with the reasonable assistance of the Indemnitees as requested by the Indemnitor.
9.1. No Liability by Agent. AGENT IS NOT AND SHALL NOT BE LIABLE FOR THE CONTENT OF THE ADVERTISING SUPPLIED BY ADVERTISERS. AGENT MAKES NO WARRANTY OF ANY KIND WITH RESPECT TO THE SERVICES PROVIDED UNDER THIS AGREEMENT, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT.
- Requirements of GDPR
10.1 Notice and Choice Requirements for European Union Residents. Where Personal Data (as that term is defined under the General Data Protection Regulation (‘GDPR”) is collected from residents of European Union States, for purposes described in this Agreement, Company must, on each Company Property:
(i) Provide legally sufficient notice that describes the manner in which personal data (such as IP address and unique cookie or device identifiers) are used by the Service,
(ii) Obtain legally sufficient consent from Company’s users, regarding the collection of such Personal Data; and
(iii) Provide a legally sufficient opt-out method, or a link to an industry-wide or platform-based opt-out method, that will enable Company users to withdraw their consent from (i.e., to opt out of) the data collection and usage described herein.
11.1. Waiver; Amendment: Failure by either Party to enforce any provision of this Agreement shall not be deemed a waiver of future enforcement of that or any other provision. Any waiver, amendment or other modification of any provision of this Agreement shall be effective only if in writing, specifically identified in such writing, and signed by each of the Parties through its authorized representative. Failure by either Party to enforce any provision of this Agreement shall be effective only if in writing and signed by both Parties.
11.2. Severability: If any provision of this Agreement is held by final judgment of a court of competent jurisdiction to be invalid, illegal or unenforceable, such invalid, illegal or unenforceable provision shall be severed from the remainder of this Agreement, and the remainder of this Agreement shall be enforced unless the severance of the unenforceable provision renders this Agreement commercially unreasonable for either Party.
11.3. Binding Effect: This Agreement inures to the benefit of and is binding upon the Parties, their respective successors in interest and their assigns by way of, and a Party may transfer this Agreement as part of such Party’s, merger, sale, acquisition, transfer of substantially all of such Party’s assets, stock or business, including the Websites in the case of Company.
11.4. Governing Law; Jurisdiction: This Agreement shall be governed by the laws of the England and Wales, without regard to choice of law principles. Each Party hereby consents to the personal jurisdiction and venue of the courts in London, England, and agrees to receive service of process at the address set forth in this Agreement.
11.5. Entire Agreement: This is the entire agreement of the Parties relating to this subject and it supersedes all other commitments, negotiations, communications and understandings of the Parties.