Vendor Standard Terms and Conditions • Slashdot Media
LAST UPDATED: January 09, 2020
These standard terms and conditions (the “Agreement”, “Terms” or “Vendor Terms”), entered into and agreed to by Slashdot Media, LLC (“Media Company”, “Us”, or “We”) and all Vendors, govern Your access to, and the ongoing use of all of the following: the Sites, Vendor Platform, Media Company Information, and Solutions (collectively, the “Services”).
By accessing or using any of the Services, or executing an Insertion Order that references these Terms, the person accessing or using any of the Service or executing the Insertion Order agrees to these Terms on behalf of his or her Vendor entity and represents that he or she has the authority to bind such entity and its Affiliates to these Terms. If the person accepting is a natural person not associated with or representing a Vendor entity or any other entity, he or she agrees to be bound by these Terms as an individual. “You” AND “Your” refer to you as in individual, and/or such Vendor entity and its Affiliates, as applicable. BY ACCESSING AND USING THE SERVICES, YOU ATTEST THAT YOU HAVE READ, UNDERSTOOD AND AGREED TO BE LEGALLY BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, OR DO NOT HAVE THE AUTHORITY TO BIND YOUR COMPANY AND ITS AFFILIATES TO THESE TERMS, THEN YOU SHOULD NOT ACCESS OR USE OUR SERVICES, OR EXECUTE AN INSERTION ORDER.
These Terms were last updated on the date provided herein and are effective between You and Us as of the date You access or use our Services, or, execute an IO referencing them, whichever is earlier. We reserve the right to update or otherwise modify these Terms from time to time. You are responsible for checking these Terms periodically for changes and updates. Your use of our Services after such update constitutes Your acceptance of such changes and the updated Terms.
Capitalized terms that are not otherwise defined herein shall have the meanings assigned to them in the Agreement. Vendor and Media Company agree as follows:
- “Accounts” include information about a Vendor (Basic and Upgraded) collected and maintained as company records for the purposes of managing the Sites, content management, and administrating the Services. Because We create Vendor Accounts for the purposes of managing our business, Vendor Accounts cannot be cancelled.
- “Ad Campaign” of “Advertising Campaign” means the process by which Media Company obtains, processes, provisions and provides Vendor with any Deliverables as provided in an IO.
- “Ad” means any Deliverable provided to Vendor by Media Company as provided in an IO.
- “Advertising Materials” means artwork, banners, images, copy, video, audio, logos, content, or active URLs or tags for Ads.
- “Affiliate” means, as to an entity, any other entity directly or indirectly controlling, controlled by, or under common control with, such entity.
- “Basic Product Listing” is an unpaid, more summarized version of the Basic Product Profile often featured in tables or lists on directory, product or category listing pages on our Sites.
- “Basic Product Profiles” or “Basic Plan” are unpaid Product profiles detailing a limited, or “basic” set of Product Information and at Media Company’s sole discretion, Vendor information (including but not limited to Vendor name, logo, contact information, URL) that do not generate any clicks or leads as outlined on our Vendor Plans & Pricing page with further specifications as provided in the Specifications and Guidelines section. A Basic Product Profile typically includes a Basic Product Listing.
- “Basic Vendor” is an unpaid Vendor.
- “Category Pages” or “Categories” are the pages or tables on the Sites relating to specific types or categories of products, services, or software and that may include Product Listings.
- “Conversion Tracking” is an optional feature provided by Us that allows You to place a tracking code snippet provided by Us on Your website enabling You to track conversions or identify leads that come from or otherwise originate from Our Sites.
- “CPC Deliverables” means Deliverables sold on a cost per click basis whereas an ad click shall be defined as each time a Site User clicks on the Vendor Ad and is directed to Vendor URL (“Ad Click”).
- “CPL Deliverables” means Leads sold on a cost per lead basis.
- “CPC Rate” means the cost per Ad Click rate paid by Vendor for Incremental CPC Deliverables as provided on the IO.
- “CPL Rate” means the cost per Lead rate paid by Vendor for Incremental CPL Deliverables as provided on the IO.
- “Deliverable”, “Deliverables” or “Delivery” means the inventory delivered by Media Company including the Upgraded Product Profiles, CPC Deliverables, CPL Deliverables, Fixed Priced Deliverables, or other desired actions.
- “Fixed Priced Deliverable” means any Deliverable referenced on an IO that is sold on a fixed priced basis and may include, but is not limited to, add-on services, features or capabilities.
- “Incremental Deliverables” means any Incremental CPC Deliverables, Incremental CPL Deliverables, or other incremental Deliverable.
- “Incremental CPC Deliverables” means CPC Deliverables sold to Vendor on an incremental basis at the CPC Rate above the number of Ad Clicks included in the respective Upgraded Product Profile, if applicable. Incremental CPC Deliverables automatically renew on a month to month basis unless either party provides the other with written notice not renew 15 days prior to the end of the Initial Term or any Subsequent Term.
- “Incremental CPL Deliverables” means CPL Deliverables sold to Vendor on an incremental basis at the CPL Rate above the number of Leads included in the respective Upgraded Product Profile, if applicable. Incremental CPC Deliverables automatically renew on a month to month basis unless either party provides the other with written notice not renew 15 days prior to the end of the Initial Term or any Subsequent Term.
- “Incremental CPC Deliverables Monthly Budget” or “CPC Budget” means that total Vendor charges for Incremental CPC Deliverables during any calendar month during the Term shall not exceed the dollar amount as defined in the IO. This means that if Ad Clicks * CPC Rate equals an amount greater than the Incremental CPC Deliverables Monthly Budget during any calendar month during the Term, then Vendor shall only pay an amount equal to the Incremental CPC Deliverables Monthly Budget for that calendar month. In the event charges for Vendor Incremental CPC Deliverables reach the Incremental CPC Deliverables Monthly Budget prior to the end of any calendar month during the Term, Media Company reserves the right to preempt, disable, or remove Vendor’s Upgraded Product Listing from the Site for the remainder of the calendar month without notice manually or through its automated programs.
- “Incremental CPL Deliverables Monthly Budget” or “CPL Budget” means that total Vendor charges for Incremental CPL Deliverables during any calendar month during the Term shall not exceed the dollar amount as defined in the IO. This means that if Leads * CPL Rate equals an amount greater than the Incremental CPL Deliverables Monthly Budget during any calendar month during the Term, then Vendor shall only pay an amount equal to the Incremental CPL Deliverables Monthly Budget for that calendar month. In the event charges for Vendor Incremental CPL Deliverables reach the Incremental CPL Deliverables Monthly Budget prior to the end of any calendar month during the Term, Media Company reserves the right to preempt, disable, or remove Vendor’s Lead Form from the Site for the remainder of the calendar month without notice manually or through its automated programs.
- “Internet” means that certain global network of computers commonly referred to as the Internet, including (without limitation) the World Wide Web.
- “Insight Data” means insights and data (as specified by Media Company and to the extent available) specified, and collected by Media Company and provided to Vendor about a Site User that has visited an Upgraded Product Profile Page, related Product category page or other relevant Site page.
- “IO” or “Insertion Order” means a mutually agreed insertion order that incorporates these Terms and which outlines the Solutions.
- “Lead” means the information relating on a contact or Site User that has displayed interest in a Product, which is collected, compiled, managed, or otherwise secured by Us, may be further defined in an applicable IO; and is owned by Us.
- “Lead Form” means the form served by Media Company to Site Users from time to time whereas Site Users fill out such form and provide contact information for the purpose of accessing Site content, Vendor Content, and/or offers from Media Company. Vendor agrees and understand there may be countries, regions, or jurisdictions where Media Company is prohibited by Privacy and Direct Marketing Laws, other law or regulation, or otherwise, from serving a Site User a Lead Form and as a consequence, Site User contact information may not be available to Vendor in these countries, regions, or jurisdictions.
- “Link” means text, icons, images, graphics or other HTML elements that link, hyperlink, activate or associate to, an external resource.
- “Media Company Information” means all information, data, technology, tools, systems, content or other materials, contained in or accessible by means of the Services.
- “Password” means that certain password, user name and other log-in information assigned to You by Media Company, in each case for accessing the Vendor Platform.
- “Product Information” means, collectively and without limitation, Product descriptions, specifications, features, benefits, requirements, pricing, training, support, embeddable files made available for download such as a PDF, screenshots, reviews, audio, video, created by Vendor or Us from publicly available content, Vendor contributed modifications or Content, and any other content We create or license, now or in the future, and featured on our Sites.
- “Product Listing” is any Basic Product Listing or Upgraded Product Listing.
- “Product Profiles” are created by Us from publicly available content, content contributed by Vendor and any other content We create or license including Product Information. Product Profiles may be featured or referenced on the Site in directories, Product lists, or integrated into general Site content.
- “Product” or “Software” means the software or service offering associated with, and/or being marketed/sold by, a Vendor.
- “Prohibited Code” means computer programs or tools that (a) alter a computer user’s browser or other settings or use an ActiveX control or similar device to download advertising supporting software without providing fair notice to and obtaining affirmative consent; (b) prevent a computer user’s reasonable efforts to block the installation of or disable or remove unwanted software; (c) remove or disable any security, anti-spyware or anti-virus technology on a user’s computer; (d) send email through a user’s computer without prior authorization; (e) open multiple, sequential, stand-alone advertisements in the consumer’s Internet browser which cannot be closed without closing the Internet browser or shutting down the computer or (f) other similar activities that are prohibited by applicable law or industry best practices.
- “Rate” or “Rates” mean the rate or rates charged to Vendor by Media Company for the Services
- “Ratings” mean any portion of a Site User Review or any other Media Company review or compilation, that uses scaled score, rating or metric to convey an opinion or a qualitative or quantitative rating about a Vendor or Product.
- “Representative” means, as to an entity and/or its Affiliate(s), any director, officer, employee, consultant, contractor, agent, and/or attorney.
- “Site” or “Sites” are websites that are owned, operated, controlled, or licensed by Media Company, our Affiliates, or authorized Third Parties to provide the Services hereunder.
- “Site User Content” means without limitation, any information, materials, Site User Reviews, comments, opinions, commentary, and any related content submitted to our Sites by a Site User.
- “Site User Reviews” means any Site User submitted content or other licensed content that conveys, expresses or otherwise communicates an opinion about a Vendor or Product.
- “Site User” means a user of our Sites who accesses, views and consumes content, writes reviews, contributes content and performs various other site interactions.
- “Solutions” means any products, services, Ad, Deliverable, or applications offered by Media Company in connection with the Sites, Vendor Platform, or an Insertion Order that references these Terms.
- “Third Party” or “Third Parties” means an entity or person that is not (i) a party to an IO or (ii) an Affiliate or Representative of a party to an IO, with which We may have a relationship with in the delivery of our Services.
- “Upgraded Product Listing” is a more summarized version of the Upgraded Product Profile often featured in tables or lists on directory, product or Category Pages on our Sites, and included as a feature in an Upgraded Product Profile. We offer two types of Upgraded Product Listings, the “Plus Product Listing” and “Premium Product Listing”.
- “Upgraded Product Profiles” are paid Product Profiles (i) detailing an expanded set of select Product Information and at Media Company’s sole discretion, Vendor information (including but not limited to Vendor name, logo, contact information, URL), and (ii) that include various site functions or features including but not limited to, badges, widgets, Buyer Insight Data, Reviews, Upgraded Product Listing, and Deliverables. We offer two types of Upgraded Product Profiles, the 1) “Business Software Listing PLUS” or “Plus Plan” and 2) “Business Software Listing PREMIUM” or “Premium Plan” under the umbrella Solutions name “Business Software Marketing Packages”, “Business Software Plans”, or “Business Software Listings”, as further provided herein, in the Specifications and Guidelines section, and outlined on our Vendor Plans & Pricing page and as applicable, on an IO.
- “Upgraded Vendor” is a paid Vendor.
- “Vendor” means a software or technology service vendor (Basic Vendor or Upgraded Vendor) whose Product is included on our Sites.
- “Vendor Content” means any Product or Vendor information provided to Us by Vendor in connection with our Services including, but limited to, any content, text, images, graphs, information, logos, descriptions.
- “Vendor Platform” is the online portal and platform We make available to Vendors including the software and technology associated with the platform and the service We provide.
I. PRODUCT PROFILES
- Basic Product Profiles. Media Company hereby grants Vendor a worldwide, non-exclusive, non-transferable, non-assignable license to access and use those limited features associated with a Basic Product Profile as outlined in the Specifications and Guidelines section. From time to time Media Company may modify, replace or discontinue any of the Basic Product Profile features in its sole discretion. Basic Product Profiles are not cancellable.
- Upgraded Product Profiles. If and to the extent specified in an IO, Media Company hereby grants Vendor a worldwide, non-exclusive, non-transferable, non-assignable license to access and use, solely as applicable and as specified in these Terms, the Specifications and Guidelines section, and the relevant IO, those upgraded features associated with an Upgraded Product Profile for the term specified in the IO. As it develops new profile features, Media Company may from time to time add new additional features, or, modify or replace any of the features with features of a substantially similar nature or purpose, or, discontinue features altogether in its sole discretion.
II. INSERTION ORDERS
- IO Details. From time to time, Media Company and Vendor may execute IOs that will be accepted as set forth in Section II(b). As applicable, each IO will specify: (i) the type(s), amount(s) and specifications of Deliverables, (ii) the price(s) for such Deliverables, (iii) the maximum amount of money to be spent pursuant to the IO, (iv) the start and end dates of any Services, and (v) the identity of and contact information for Media Company and Vendor. Other items that may be included are, but are not limited to, any other specific or special terms or specifications.
- Acceptance. Acceptance of the IO and these Terms shall be upon written (which, unless otherwise specified, for purposes of these Terms, will include paper, fax, or electronic) approval of the IO and these Terms by Media Company and Vendor.
- Revisions. Unlessotherwise provided hereunder, revisions to accepted IOs will be made in writing and acknowledged by both Parties in writing.
III. AD AND CONTENT SPECIFICATIONS
- Specifications. Media Company specifications for Advertising Materials, technical specifications and guidelines are as outlined here: Specifications and Guidelines.
- Submission. You will submit Advertising Materials pursuant to Section III(a) in accordance with Media Company’s then-existing Policies. Vendor represents and warrants that the Advertising Materials will not contain any Prohibited Code.
- Ad Tags. When applicable and approved by Media Company, Third Party tracking tags relating to Ads may be implemented. Vendor agrees to provide Third Party tracking tags in compliance with generally accepted industry standards, Media Company Policies and all applicable laws.
- Ad Serving and Tracking. Media Company will serve all Ads and track Delivery through its ad server and systems.
- Changes to Site. Media Company reserves the right to make changes to the Sites in its sole discretion. Media Company will use commercially reasonable efforts to provide Upgraded Vendor prior notification of any material changes to the Site that Media Company deems may materially change or affect Deliverables as specified on the applicable IO. Should such a modification occur (exclusive of any modification made to any features of, or formatting relating to, any Product Profile, or, to the formatting, features, or placement of Upgraded Product Listings on Category Pages) with or without notice, as Upgraded Vendor’s sole remedy for such change, Upgraded Vendor may cancel the remainder of the affected Upgraded Product Profile without penalty within five (5) business days of such notification or finding. No refunds relating to prepaid services are due or shall be paid as a result of such cancellation.
- Payment. Vendor agrees to pay Media Company the charges as set forth and provided in the IO. Payment is due for all Services in advance of period for which they apply. All charges for Services are solely based on Media Company’s measurement. All pricesset forth in an IO are stated exclusive of VAT, GST and any other form of value-added or sales tax, and any such taxes, if applicable, shall be added to the invoice and be paid by Vendor. Billing invoices and statements will be sent to Vendor’s billing address as set forth on the IO and will include information reasonably specified by Vendor such as the PO number. In the event payment is made via credit card, Vendor authorizes Media Company to automatically charge Vendor’s credit card on a recurring basis to pay for all billed amounts during the Initial Term and any Subsequent Term including any monthly charges and incremental charges associated with additional or Incremental Deliverables.
- CPC Deliverables. If and to the extent specified in an IO, Media Company will deliver (i) CPC Deliverables and (ii) Incremental CPC Deliverables, as applicable, to Vendor as part of an Upgraded Product Profile. Vendor understands and agrees that CPC Deliverables are not guaranteed and the predictability, forecasting, and conversions for any such CPC Deliverables may vary and even delivery is not available.
Leads and CPL Deliverables.
- If and to the extent specified in an IO, Media Company Media Company will deliver (i) CPL Deliverables and (ii) Incremental CPC Deliverables, as applicable, to Vendor as part of an Upgraded Product Profile and hereby grants Vendor a worldwide, non-exclusive, non-transferable, non-assignable license to Leads.
- Vendor understands and acknowledges that CPL Deliverables and Leads typically include Personal Data. Vendor shall comply with all Privacy and Direct Marketing Laws that are applicable to the use or other processing of Personal Data included as part of the CPL Deliverables and Leads.
- Vendoragrees not to at any time (except in connection with the sale of substantially all the assets of Vendor), sell, assign, or transfer the Leads to any other person, firm, entity, or organization other than an Affiliate. Subject to the foregoing, any sale, assignment or transfer of any Leads shall be made subject to contractually binding restrictions to ensure that the use of such Leads is consistent with applicable Privacy and Direct Marketing Laws.
- Without limiting the foregoing, Vendor agrees not to (i) knowingly make any false statements or misrepresentations or (ii) use overly aggressive or offensive tactics with contacts when following up on the Leads and CPL Deliverables provided to Vendor by Media Company.
- Fixed Priced Deliverables. If and to the extent specified in an IO, Media Company may deliver Fixed Priced Deliverables to Vendor.
VI. VENDOR PLATFORM
- Access and Use. You may access and use the Vendor Platform and related Services during the period You are authorized to do so, only for so long as the Password assigned to You remains valid, and solely for Your internal business purposes. Media Company may cancel Your Password for convenience and in the exclusive discretion of Media Company without notice. Upon cancellation of the Password, You will immediately cease and desist any and all access to and attempts to access the Vendor Platform or use the Services.
VII. USE, LIMITATIONS, REPRESENTATIONS AND WARRANTIES
- You shall (i) provide true, current and accurate information about Yourself and/or Vendor when prompted by any registration form or otherwise as associated with the Vendor Platform or related Services, and (ii) require any Third Party, Affiliate, or Representative used by Vendor in performance of this Agreement or on behalf of Vendor to be bound by confidentiality, limitations and non-use obligations at least as restrictive as those agreed by Vendor as provided herein.
- You represent and warrant that You may not, and may not authorize or enable any Third-Party to (i) use Your Password, or, access, change, modify or otherwise alter the Vendor Platform; (ii) access or utilize our Services (a) if You are a direct competitor except with Media Company’s prior written consent, (b) for the benefit of any party other than You or for any purpose other than as expressly authorized herein or in an applicable IO, or (c) if You or any Third-Party is less than 18 years old; (iii) license, sublicense, sell, resell, transfer, assign, distribute, copy, display, create derivative works from or otherwise commercially exploit the Vendor Platform or Services to any Third Party; (iv) access or use the Vendor Platform for monitoring its availability, performance or functionality, or for any other market research, benchmarking or competitive purposes; (v) use, post or otherwise employ Prohibited Code on Sites or in the Vendor Portal, or create, post or publish malicious Internet Links on the Sites; (vi) “frame” or “mirror” the Vendor Platform on any other Third-Party server or other Internet-based device; (vii) scrape, use or interact with the Vendor Platform or Sites using any software, scripts, bots, tools, agents, engines, or other semi-automated or automated methods, device or mechanism (including browsers, robots, spiders, avatars or intelligent agents) to navigate or search any portion of the Vendor Platform or Site; (viii) copy or take screen shots of the Vendor Platform or Site for any purposes other than provided herein; (ix) use the Vendor Platform in a manner that places an excessive burden on the Site infrastructure or otherwise interferes with the Site’s ability to provide Services, (x) use the Services to violate any applicable securities exchange requirements, (xi) make any information available to Media Company whereas if doing so would violate any applicable Laws, industry or professional codes or standards, contractual or fiduciary obligations, confidentiality obligations, or employer policies or other requirements to which You are bound; (xii) use the Services to access, present, make publicly available, store, distribute or transmit any material that (a) is unlawful, harmful, threatening, defamatory, libelous, vulgar, obscene, infringing, harassing or racially or ethnically offensive, (b) facilitates illegal activity, (c) depicts sexually explicit or suggestive images, (d) promotes unlawful activity or violence, (e) is defamatory or discriminatory, including without limitation based on race, gender, color, religious belief, sexual orientation, or disability, or (f) may invade or violate another’s right of privacy or infringe any intellectual property right, including patent, trademark, trade secret, service mark, copyright or other proprietary rights of any Third Party; (xiii) reverse engineer, disassemble or decompile or access the Vendor Platform or for any reason or no reason including but not limited to (a) building a competitive product or service, (b) building a product using similar ideas, features, functions or graphics of the Service, or (c) copying any ideas, features, functions or graphics of the Service; (xiv) avoid, bypass, interfere with, impair, or otherwise circumvent any technical process We employ in the Vendor Portal or to operate or deliver the Solutions; (xv) impersonate any person or entity or falsely state or otherwise misrepresent Your affiliation with a person, Vendor or entity, or (xvi) copy or otherwise collect the personal information of any Site Users or Vendors for the purposes of solicitation, communication, mass marketing or unlawful purpose.
- Media Company shall not be responsible for any failure to remove, or delay in removing, harmful, inaccurate, unlawful, or otherwise objectionable content originating with or otherwise provided by Vendor, Site Users, Third-Parties except to the extent provided by law.
- Media Company does not want to receive confidential or proprietary information from You and any Vendor Content, Advertising Materials, or other information or material submitted by You to Media Company via the Vendor Platform or in any other manner, will be deemed NOT to be confidential.
- Conversion Tracking. You can opt in to the use of Conversion Tracking by accessing the Conversion Tracking tracking code snippet (“Snippet”) in your Vendor Platform. You are solely responsible for all Links to Your website and proper installation and maintenance of the Snippet. We are not responsible for anything relating to Your website. If You make changes to Your website, You must make sure that the Snippet remains installed correctly to ensure Conversion Tracking functions and reports properly and accurately. Conversion Tracking is reported in your Vendor Portal and reporting will begin after the Snippet has be installed on Your website. The cookie window for a reported conversion is 30 days from the date of the Ad Click. On rare occasions, the accuracy of Conversion Tracking may be affected by downtime of our servers. To stop Conversion Tracking, simply remove the Snippet from Your website at any time.
VIII. INTELLECTUAL PROPERTY RIGHTS
Media Company IP. Media Company and its Affiliates own the Services, including all software and other technology provided or employed by Media Company in connection with the Services, and the contents, design, layout, functions, appearance and other intellectual property comprising the Services, including all copyrights, trademarks, service marks, trade secrets, patents, domain names, and other intellectual property rights inherent therein (collectively, the “Media Company IP”).
Media Company hereby grants Vendor a worldwide, non-exclusive, non-transferable, non-assignable, revocable license to access and use and view the Media Company IP for Vendor’s use in accordance with these Terms and applicable laws. Except to the extent otherwise expressly permitted under copyright law, Vendor will not reproduce, use, modify, distribute, copy, display, create derivative works of or otherwise exploit Media Company IP without the express written consent of Media Company or as provided herein.
Without limitation of the foregoing, as between Media Company and You and subject to the limited rights expressly granted hereunder, Media Company shall retain all right, title and interest in and to the Vendor Profiles and Product Profiles We create from publicly available information, Site Data, compiled Vendor data and all other materials accessible by means of the Services, and You shall not acquire ownership in any of this information by reason of the limited license provided herein. You shall abide by all additional copyright notices or restrictions contained in any content accessed through the Services.
- Vendor IP. Except for the Product Information collected or created by Us, Vendor shall retain all right, title and interest in and to the Vendor Content it submits to Us including Vendor logo, copyrights, trademarks, and service marks (collectively, the “Vendor IP”). Vendor grants to Media Company a non-exclusive, perpetual, worldwide, royalty-free, irrevocable, transferable, and fully sub-licensable license to use Vendor IP on the Sites and in the normal course of business, and right to use, reproduce, adapt, translate, distribute, publish, and publicly display such content and other materials throughout the world in any media, now known or hereafter devised.
IX. TERM AND TERMINATION
- Term. The term is set forth on the applicable IO for those Services outlined in the respective IO (“Initial Term”). All IOs automatically renew for a term equal to the same length (“Subsequent Term”) unless either party provides written notice to not renew 10 days prior to the end of the Initial Term or any Subsequent Term. Upon termination You shall (i) cease and desist any and all access to and attempts to access the Vendor Platform or use of the Solutions as provided in the applicable IO, and (ii) pay all unpaid fees for Offerings provided through the date or termination. The Initial Term and Subsequent Term may also be referred to collectively or individually as the “Term”.
- Termination for Cause. Vendor may terminate this Agreement or an IO at any time if Media Company is in material breach of its obligations hereunder, which breach is not cured within ten (10) days after receipt of written notice thereof from Vendor. Media Company may terminate this Agreement or an IO at any time without notice if Vendor is in material breach of its obligations hereunder, including but not limited to, a failure to pay applicable fees when due.
X. FORCE MAJEURE
- Generally. Excluding payment obligations, neither Vendor nor Media Company will be liable for delay or default in the performance of its respective obligations under these Terms if such delay or default is caused by conditions beyond its reasonable control, including, but not limited to, fire, flood, accident, earthquakes, telecommunications line failures, electrical outages, network failures, acts of God, or labor disputes (“Force Majeure Event”).
- Related to Payment. If Vendor’s ability to transfer funds to Third Parties has been materially negatively impacted by a Force Majeure event, including, but not limited to, failure of banking clearing systems or a state of emergency, then Vendor will make every reasonable effort to make payments on a timely basis to Media Company. Subject to the foregoing, any delay will not in any way relieve Vendor from any of its obligations as to the amount of money that would have been due and paid without such condition, nor shall any such obligation be terminated or waived in the event that Media Company terminates an IO due to failure to make such transfer of funds.
- Cancellation. If a Force Majeure event has continued for five (5) business days, Media Company and/or Vendor has the right to cancel the remainder of the IO without penalty by providing the other party with a ten (10) day written notice.
XI. DISCLAIMERS, LIMITATION OF LIABILITY, AND INDEMNIFICATION
- DISCLAIMERS. YOU AGREE THAT YOUR USE OF OUR SERVICES AND USE OF OUR SITE(S) ARE AT YOUR OWN RISK. EXCEPT AS SPECIFICALLY PROVIDED HEREIN OR PROHIBITED BY APPLICABLE LAW, MEDIA COMPANY SERVICES AND ANY MATERIALS, SITE INFORMATION, MEDIA COMPANY INFORMATION, OR OTHER SERVICES PROVIDED BY OR ON BEHALF OF MEDIA COMPANY BY ANY THIRD PARTY PURSUANT TO THIS AGREEMENT, OR OTHERWISE, ARE PROVIDED “AS IS” AND WITH ALL DEFECTS. EXCEPT AS SET FORTH IN SECTION X, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MEDIA COMPANY EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY MADE, OR THAT MAY HAVE BEEN MADE, IN CONNECTION WITH THIS AGREEMENT, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, UNINTERRUPTED SERVICE, AND ANY WARRANTY ARISING OUT OF A COURSE OF PERFORMANCE, DEALING OR TRADE USAGE. IN NO EVENT SHALL EITHER PARTY BE RESPONSIBLE FOR ANY FACTORS AFFECTING ITS PERFORMANCE UNDER THIS AGREEMENT WHICH ARE BEYOND ITS CONTROL, INCLUDING WITHOUT LIMITATION ANY FAILURE, DISRUPTION, DOWNTIME, INTERRUPTION, DELAY, INACCURACY OR OTHER NON-PERFORMANCE IN CONNECTION WITH THE MEDIA COMPANY SERVICES IN ANY FASHION.
LIMITATION OF LIABILITY. EXCEPT FOR INFRINGEMENT OR MISAPPROPRIATION OF MEDIA COMPANY’S INTELLECTUAL PROPERTY RIGHTS IN AND TO THE SERVICES, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION FOR THE LOSS OF DATA, BUSINESS INTERRUPTION, OR LOST PROFITS, THAT IN ANY WAY ARISE OUT OF OR RELATE TO THIS AGREEMENT, REGARDLESS OF THE THEORY OF RELIEF, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED TO THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF ANY CLAIM OR FINDING THAT A REMEDY SUFFERS A FAILURE OF ITS ESSENTIAL PURPOSE; AND IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY AMOUNT IN THE AGGREGATE IN EXCESS OF THE AMOUNT PAID OR PAYABLE TO MEDIA COMPANY BY VENDOR UNDER THIS AGREEMENT DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE ANY CLAIM ARISES. THE FORGOING SHALL NOT LIMIT ANY AMOUNTS DUE AND OWING PURSUANT TO SECTION IV, PAYMENT. THIS SECTION SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
We expressly disclaim liability for any and all disputes arising between Vendors and Site Users or users of our Services. By accessing and using our Sites and Services, You release Media Company and each of its Affiliates and Representatives from any and all liability for any and all Claims arising from disputes between Vendors and Site Users or users of our Services.
Indemnification. You agree to indemnify, defend and hold Media Company and each of its Affiliates and Representatives free and harmless from any and all claims, suits, obligations, liabilities, losses, damages, costs and expenses (including attorneys’ fees and costs) (collectively, “Losses”) resulting from any claim, judgment, or proceeding (collectively, “Claims”) brought by a Third Party arising out of or in connection with any breach or alleged breach of this Agreement by You, and/or, Your products, services or your providing such products or services to Your end users.
Media Company will promptly notify You of all Claims for which it seeks indemnity (provided that a failure or delay in providing such notice will not relieve You of Your obligations), and will: (i) provide reasonable cooperation to the You at Your expense in connection with the defense or settlement of all Claims; and (ii) be entitled to participate at our own expense in the defense of all Claims. You will have control over the defense and settlement of all Claims; provided, however, You will not acquiesce to any judgment or enter into any settlement, either of which imposes any obligation or liability on Media Company without Media Company’s prior written consent.
XII. CONFIDENTIAL INFORMATION, NON-DISCLOSURE, DATA USAGE, PRIVACY AND LAWS
- Definitions and Obligations. “Confidential Information” will include (i) all information marked as “Confidential,” “Proprietary”, or similar legend by the disclosing party (“Discloser”) when given to the receiving party (“Recipient”); and (ii) information and data provided by the Discloser, which under the circumstances surrounding the disclosure should be reasonably deemed confidential or proprietary. Without limiting the foregoing, Discloser and Recipient agree that each Discloser’s contribution to IO Details (as defined below) shall be considered such Discloser’s Confidential Information. Recipient will protect Confidential Information in the same manner that it protects its own information of a similar nature, but in no event with less than reasonable care. Recipient shall not disclose Confidential Information to anyone except an employee, agent, Affiliate, or Third Party who has a need to know same, and who is bound by confidentiality and non-use obligations at least as protective of Confidential Information as are those in this section.
- Exceptions. Notwithstanding anything contained herein to the contrary, the term “Confidential Information” will not include information which: (i) was previously known to Recipient; (ii) was or becomes generally available to the public through no fault of Recipient; (iii) was rightfully in Recipient’s possession free of any obligation of confidentiality at, or prior to, the time it was communicated to Recipient by Discloser; (iv) was developed by employees or agents of Recipient independently of, and without reference to, Confidential Information; or (v) was communicated by Discloser to an unaffiliated Third Party free of any obligation of confidentiality. Notwithstanding the foregoing, the Recipient may disclose Confidential Information of the Discloser in response to a valid order by a court or other governmental body, as otherwise required by law or the rules of any applicable securities exchange, or as necessary to establish the rights of either party under these Terms; provided, however, that both Discloser and Recipient will stipulate to any orders necessary to protect such information from public disclosure.
Additional Definitions. As used herein the following terms shall have the following definitions:
- “IO Details” are details set forth on the IO but only when expressly associated with the applicable Discloser, including, but not limited to, Ad pricing information, Ad description, Ad placement information, and Ad targeting information.
- “Performance Data” is data gathered during delivery of an Ad (e.g., number of impressions, interactions, or header information), but excluding Site Data or IO Details.
- “Site Data” is any data that is (A) preexisting Media Company data used by Media Company pursuant to the Agreement; (B) gathered pursuant to and IO during delivery of an Ad that identifies or allows identification of Media Company, Site, brand, content, context, or users as such; or (C) entered by Site Users on any Site, or otherwise collected or compiled by Media Company.
- “Collected Data” consists of Agreement Details, Performance Data, and Site Data.
- “Repurposing” means retargeting a user or appending data to a non-public profile regarding a user for purposes other than performance of the Agreement.
- “EU Privacy & Direct Marketing Laws” means (i) prior to May 25, 2018, Directive 95/46/EC of the European Parliament and of the Council (the “Data Protection Directive”), and as of May 25, 2018, Regulation (EU) 2016/679 of the European Parliament and of the Council (the “GDPR”); (ii) Directive 2002/58/EC (the “e-Privacy Directive”) and any successor legislation thereto (including, for clarity, as and when legally effective, the final form of the Regulation of the European Parliament and of the Council concerning the respect for private life and the protection of personal data in electronic communications (the “e-Privacy Regulation”); (iii) all national and local laws, rules and regulations implemented under the Data Protection Directive, GDPR, e-Privacy Directive, or e-Privacy Regulation; (iv) all other laws, rules and regulations of the European Union, any member state of the European Economic Area, and of the United Kingdom that related to any activity performed in connection with this Agreement, including without limitation, all applicable telemarketing and other direct marketing laws, rules and regulations; and (v) Media Company’s obligations under the EU-US and the Swiss-US Privacy Shield arrangements, as applicable to this Agreement.
- “US Privacy & Direct Marketing Laws” means (i) the US CAN-Spam Act of 2003, (ii) Telephone Consumer Protection Act of 1991, and (iii) the California Consumer Privacy Protection Act (CCPA) including all regulations promulgated by the California Attorney General’s office, (iv) and all other US federal and state laws, regulations and rules relating to privacy and direct marketing, including telemarketing, applicable to any Deliverables and Services provided under this Agreement.
- “Personal Data” means any information that relates to an identified or identifiable individual, including as regulated under any Privacy & Direct Marketing Laws.
- “Privacy & Direct Marketing Laws” mean any laws, regulations and rules relating to privacy, data protection and direct marketing (including telemarketing) applicable to use or other processing of Personal Data in connection with this Agreement, including without limitation any and all applicable US Privacy & Direct Marketing Laws, EU Privacy & Direct Marketing Laws, and the Canadian Anti-Spam Legislation, as such statutes may be amended from time to time and the laws of any other applicable jurisdiction.
- “DNC” means all relevant do-not-call registries of telephone numbers (including mobile telephone and landline numbers) of any country or subdivision thereof.
- Use of Collected Data. Unless otherwise authorized by Media Company, Vendor will not: (A) use Collected Data for Repurposing; provided, however, that Performance Data may be used for Repurposing so long as it is not joined with any Agreement Details or Site Data; (B) disclose the terms of this Agreement, any IO Details, or Site Data to any Third Party except as otherwise required by law or regulation.
- Privacy and Direct Marketing Laws. Each party shall be solely responsible for identifying and complying with its respective obligations under Privacy and Direct Marketing Laws applicable to its activities under this Agreement. Without limiting the foregoing, Vendor shall use, store and otherwise treat Personal Data that it obtains as a result of this Agreement (whether via a transfer of such Personal Data between the parties, or directly from an individual who responds to an Ad) strictly in accordance with applicable Privacy and Direct Marketing Laws, including scrubbing such Personal Data against DNCs and any internal opt-out lists maintained by Vendor. The Parties agree to abide by and observe any legitimate requests received from any other individual or entity seeking to exercise or assist any individual or entity in exercising any valid rights that said individual or entity may have under Privacy and Direct Marketing Laws, including any request that the Party delete, or cease transfer or use of any Personal Data.
- Necessary Rights. Media Company represents and warrants that Media Company has all necessary permits, licenses, and clearances to sell the Deliverables specified on the IO subject to these Terms. Vendor represents and warrants that Vendor has all necessary licenses and clearances to use the content contained in the Ads, Advertising Materials and Vendor Content as specified on the IO and subject to these Terms, including any applicable Policies. Vendor represents and warrants that the use of any content contained in the Vendor Content or Advertising Materials is accurate and will not (i) conflict with, infringe upon or misappropriate the rights of any other party’s intellectual property or other proprietary rights, (ii) breach any other party’s rights or privacy, or (iii) contain or promote Non-Permitted Materials.
- Assignment. Vendor may not resell, assign, or transfer any of its rights or obligations hereunder, and any attempt to resell, assign, or transfer such rights or obligations without Media Company’s prior written approval will be null and void. All terms and conditions in these Terms and each IO will be binding upon and inure to the benefit of the parties hereto and their respective permitted transferees, successors, and assigns.
- Entire Agreement. The IO and this Agreement, constitute the entire agreement of the parties with respect to the subject matter of this Agreement and supersede all previous communications, representations, Policies, guidelines, disclaimers, statements, understandings and agreements, either oral or written, between the parties with respect to said subject matter except that the parties agree there may be multiple active or current IOs between the parties each with its respective corresponding terms and conditions and that the terms and conditions for each IO shall stand on its own and be exclusive to other IOs. The IO and this Agreement may be executed in counterparts, each of which will be an original, and all of which together will constitute one and the same document.
- Compliance with Law. Vendor and Media Company will at all times comply with all federal, state, and local laws, ordinances, regulations, and codes which are applicable to their performance of their respective obligations under these Terms.
- Governing Law; Venue; Miscellaneous. If there is a conflict between the terms of any of this Agreement, the IO, or any Policies, the documents will govern in the following order: the IO, then these Terms including any document referenced and incorporated herein. The provisions of this Agreement shall be interpreted and enforced in accordance with the laws of the State of California, USA, excluding its conflicts-of-law rules. You agree that the courts of the State of California shall have jurisdiction to hear any dispute related hereto, and irrevocably consent to venue for any suit or proceeding pertaining hereto being in a court of competent jurisdiction, within the County of San Diego, California. In any action or suit to enforce any right or remedy under this Agreement, the prevailing party shall be entitled to recover its costs, including reasonable attorney’s fees. The invalidity or unenforceability of any provision hereof, shall not affect any other provision, and in such event, this Agreement shall be construed as if such invalid or unenforceable provision were omitted. The failure of either party to enforce any provision of these Terms shall not be construed as a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance with every provision of these Terms. The captions of the paragraphs of this Agreement are for ease of reference only and shall not be used to interpret or alter any provision hereof. A signature sent by facsimile or other electronic means shall be as valid as an original signature. No joint venture, partnership, employment or agency relationship exists between You and Media Company as a result of these Terms and/or Your use of the Services.
- Notices. All notices required or permitted to be given under this Agreement must be in writing and delivered to the other party by any of the following methods: (i) hand delivery, (ii) certified U.S. mail, return receipt requested, postage prepaid, (iii) overnight courier, or (iv) electronic mail. All notices to Media Company must use the address set forth herein, on the IO, or the email address: [email protected]. All notices to Vendor will be sent to the contact and address specified on the IO. All notices will be deemed received as follows: (i) if by hand-delivery, on the date of delivery, (ii) if by certified U.S. mail, three business days after mailing or the date of receipt, whichever is earlier, (iii) if by overnight courier, on the date receipt is confirmed by such courier service, or (iv) if by electronic mail, 24 hours after the message was sent, if no “system error” or other notice of non-delivery is generated.
- Survival. Any provision that must survive in order to give proper effect to its intent (e.g., payment, indemnity, miscellaneous, general, any perpetual license, disclaimers, limitations on liability, representations and warranties, etc.) shall survive the expiration or termination of these Terms. In addition, each party will promptly return or destroy the other party’s Confidential Information upon written request.
- Headings. Section or paragraph headings used in these Terms are for reference purposes only, and should not be used in the interpretation hereof.