PubExchange Advertiser Agreement

THIS ADVERTISER AGREEMENT is entered into by and between On the Vine Media, LLC ("PubExchange") and the entity executing an Insertion Order or using the PubExchange dashboard ("Advertiser"). This Agreement governs Advertiser’s use of the PubExchange service, and together with an Insertion Order (or the information entered through the PubExchange dashboard ("Dashboard")) ("IO") comprise the "Agreement" between PubExchange and Advertiser. If there is any inconsistency between the terms of an IO, and this Advertiser Agreement, the IO, shall prevail.

1. Service

1.1 PubExchange partners with a network of online properties (each, a "Partner") and provides Partners with PubExchange's products and services so that they can promote links to content that navigate to the websites where such content is maintained (the "Service").

1.2 PubExchange will make available links to content as selected by Advertiser (the links and the content accessed from the link together are the "Content") to Partners through the Service. Advertiser will only be charged for clicks on Content. Fees will be based on the number of clicks received multiplied by the cost-per-click determined by Advertiser in the IO ("CPC"). PubExchange shall continue to make the content available to the Partner to promote through the Service until the earlier of: (i) the end date provided in the IO, or (ii) reaching Advertiser's maximum budget up to the amount set forth in the IO (the "Maximum Budget").

1.3 PubExchange will make reports available to the Advertiser through the PubExchange dashboard, which provide information about the number of clicks received during the campaign to the Content. The final monthly reports may differ from the daily reports. The final monthly reports will provide the conclusive basis for PubExchange's calculation of the fees owed by Advertiser. During the term of the IO and for two (2) years thereafter, Advertiser will have the right, at its expense, upon thirty (30) days’ prior written notice and no more than once per year, to cause an independent accounting firm reasonably acceptable to PubExchange to inspect and audit during PubExchange’s normal business hours those PubExchange records that contain information relevant to confirm the extent of PubExchange's compliance with its payment obligations hereunder. Advertiser shall bear the full cost of such audit unless such audit discloses an underpayment by PubExchange of more than ten percent (10%) of the amount to be paid to PubExchange, in which case PubExchange shall bear the cost of such audit.

1.4 PubExchange does not guarantee: (i) the placement, positioning or the timing of delivery of any Promoted Content, (ii) clicks on any Promoted Content, or (iii) conversions. If the Promoted Content does not receive clicks amounting to the Maximum Budget, Advertiser's sole remedies shall be to: (i) extend the end date of the applicable campaign, (ii) replace or add to the Promoted Content with other Promoted Content to complete the campaign; or (iii) to pay only for actual clicks on the Promoted Content. In no event shall PubExchange be liable for failure to provide clicks.

2. Content

2.1 Advertiser grants PubExchange a limited, non-exclusive, fully paid-up, royalty free, worldwide right to use Advertiser's Content and Advertiser's registered and unregistered trademarks, service marks, trade dress, graphics or logos ("Advertiser Marks") in any of the following: (i) on the Site; (ii) as any part of the Service, such as in a Partner's Module; (iii) or in any other reasonable manner that Advertiser might expect PubExchange to use its Advertiser Marks.

2.2 Advertiser is solely responsible for determining the propriety and legality of the Content. Advertiser represents and warrants that it is authorized to use and/or has approved all words of the Content’s headline. Headlines must accurately reflect the tone and subject matter of the Content.

2.3 PubExchange may at any time for any or no reason reject or remove Content. Advertiser may also at any time for any or no reason reject or remove Content from Service through the use of the PubExchange dashboard.

2.4 Advertiser shall not, directly or indirectly, provide Content that: (i) is obscene, defamatory, libelous, slanderous, pornographic, violent, profane, indecent or unlawful; (ii) is factually inaccurate, misleading or deceptive; or (iii) facilitates or promotes any type of illegal activity, including without limitation pyramid schemes, gambling, the sale or use of illicit drugs, or discrimination or harassment of any individual or group.

3. Term and Cancellation

3.1 The IO will set forth the start and end date of a particular campaign. However, the Agreement, or an individual campaign may be suspended or terminated: (i) by Advertiser for any reason upon two (2) business days' written notice to PubExchange, or (ii) by PubExchange for any reason upon thirty days (30) days’ written notice to Advertiser. During the notice period, all previously contracted campaigns shall continue to run pursuant to the IO and Advertiser shall be responsible for paying PubExchange for all clicks received during such notice period.

4. Fees and Payment Terms

4.1 The IO shall include Advertiser’s Maximum Budget. Advertiser shall pay PubExchange fees based on the number of clicks on the Promoted Content, as measured by PubExchange's tracking system, multiplied by the CPC. Fees will not the exceed the Maximum Budget. Advertiser may increase the Maximum Budget through the Dashboard or through an amendment to the IO.

4.2 PubExchange shall charge Advertiser’s credit card (up to the indicated Maximum Budget) at such intervals as PubExchange determines in its sole discretion. PubExchange shall review all billing inquiries, including refund requests, on a case-by-case basis and reserves the right to approve or deny any request in its sole discretion.

4.3. If payment is not made when due, PubExchange may charge interest at the rate of 6% per annum from the due date until the date of actual payment, whether before or after judgment. PubExchange also reserves the right to suspend or terminate Advertiser's use of the Service until Advertiser has paid all amounts due and to charge Advertiser for all costs of collection, including collection agency and reasonable legal fees and court costs. Advertiser authorizes PubExchange to investigate Advertiser's credit record. If applicable, Advertiser agrees to provide such further financial information and documentation as may be required from time to time by PubExchange as a condition for the continued extension of credit. Advertiser acknowledges and agrees that any account, credit card and related billing and payment information which Advertiser provides to PubExchange may be shared by PubExchange with companies who work on PubExchange's behalf solely for the purpose of performing credit checks, effecting payment to PubExchange, collecting debts owed to PubExchange and/or servicing Advertiser's account.

5. Confidentiality

5.1 Each party agrees that with respect to any Confidential Information (as defined below) that is disclosed by one party to the other in connection with the Agreement, the party receiving such Confidential Information shall not disclose such Confidential Information to any third party, or use it for any purpose, except in connection to its rights and obligations under the Agreement. "Confidential Information" means all information concerning a party or any of its subsidiaries or affiliates that is not generally known to the public, which information is marked confidential or proprietary, or which under the circumstances ought reasonably to be treated as confidential or proprietary, and includes, without limitation, the terms of the Agreement. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is, as of the time of disclosure, or thereafter becomes, part of the public domain through a source other than the receiving party; (ii) was lawfully in the possession of the receiving party as of the time of disclosure; (iii) is independently developed by the receiving party without reference to the Confidential Information; or (iv) is subsequently obtained from a third party not subject to an obligation of confidentiality with respect to the information disclosed.

5.2 Confidential Information shall be kept in the strictest confidence and shall be protected by all reasonable and necessary security measures. Confidential Information shall not be released by the receiving party to anyone except an employee or agent, who has a need to know same, and who is bound by confidentiality obligations at least as restrictive as these contained herein. Neither party will use any portion of Confidential Information provided by the other party pursuant to the Agreement for any purpose other than as expressly set forth under the Agreement. Notwithstanding the foregoing, either party may disclose Confidential Information strictly necessary to comply with the demands of any court order, law or governmental agency and PubExchange may share Confidential Information of Advertiser with any holding company of Advertiser or with any subsidiary company of Advertiser’s holding company.

5.3 If Advertiser is acting on behalf of a Content provider, Advertiser authorizes PubExchange to grant such Content provider (or any subsequent third party appointed by the Content provider) access to and a right to use the IO.

6. Additional Representations and Warranties/Disclaimers

6.1 Both Advertiser and PubExchange represent and warrant to the other party that: (i) it has all necessary rights and authority to enter into the Agreement and grant the rights and licenses under the Agreement; and (ii) the execution or acceptance of the Agreement, and the performance of its respective obligations and duties pursuant to the Agreement, do not and will not violate any agreement to which such party is bound.

6.2 Advertiser further represents and warrants that: (i) the Content does not violate any applicable laws, rules and regulations and will not contain any material which may be harmful, abusive, obscene, threatening or defamatory; (ii) it has all necessary rights to permit and grants PubExchange pursuant to the Agreement all such rights which are necessary for PubExchange to (as applicable) use, host, cache, route, store, copy, modify, distribute, reformat, reproduce, publish, display, transmit and distribute the Content; and (iii) use of the Content in accordance with the Agreement will not infringe any intellectual property rights of any third party.

6.3 If Advertiser is a third party acting on behalf of the provider of the Content, Advertiser represents and warrants that: (i) it is the authorized agent of the provider of the Content; (ii) it has the legal authority to enter into the Agreement and make all decisions and take all actions relating to the provider of the Content; (iii) it has entered into a written agreement granting the agent the authority to represent the provider of the Content in accordance with (i) and (ii) above (and shall submit such agreement to PubExchange on demand).

6.4 EXCEPT AS MAY BE EXPRESSLY SET FORTH IN THE AGREEMENT, PUBEXCHANGE MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED -- INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE -- ABOUT ITS SERVICES AND THE PERFORMANCE OR SUCCESS OF ANY CAMPAIGNS MADE BY IT ON BEHALF OF ADVERTISER, OR THAT THE SERVICE WILL OPERATE UNINTERRUPTED, SECURE OR ERROR FREE.

7. Indemnification

7.1 Each party shall defend, indemnify and hold harmless the other party and its respective agents, affiliates, subsidiaries, directors, officers, employees and contractors against any and all third party claims resulting from the breach of such party's duties, obligations and representations under the Agreement.

7.2 In connection with any such claim: (i) the indemnified party shall provide prompt written notice to the indemnifying party of any such claim (provided that the failure to provide such prompt notice shall not relieve the indemnifying party of its indemnification obligations in the Agreement, except to the extent it has been damaged thereby); (ii) the indemnifying party shall have sole control of the defense or settlement of the claim (provided that the indemnifying party may not enter into any settlement that may adversely affect the rights or obligations of the indemnified party without the indemnified party's prior written consent); (iii) at the indemnifying party's request and expense, the indemnified party cooperating in the investigation and defense of such claim; and (iv) the indemnified party shall have the right to participate in its defense with counsel of its own choosing at the indemnified party's expense.

8. Limitation of Liability

8.1 EXCEPT WITH RESPECT TO CLAIMS ARISING FROM A PARTY'S INDEMNITY OBLIGATIONS, WILLFUL MISCONDUCT OR A BREACH OF THE CONFIDENTIALITY PROVISION IN THE AGREEMENT, THE MAXIMUM AGGREGATE LIABILITY OF EITHER PARTY AND ITS DIRECTORS, OFFICERS, EMPLOYEES, VENDORS OR AGENTS FOR ANY ACTION REGARDLESS OF THE FORM OF THE ACTION, WHETHER IN TORT OR CONTRACT, ARISING UNDER OR RELATED IN ANY WAY TO THE AGREEMENT OR ITS IMPLEMENTATION SHALL BE LIMITED TO THE GREATER OF: (I) THE AMOUNT OF FEES PAYABLE BY ADVERTISER UNDER THE AGREEMENT IN THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO A CLAIM; AND (II) $1,000. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR CONSEQUENTIAL, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES OR OTHER DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, LOST DATA, LOST REVENUES OR LOST PROFITS, ARISING OUT OF OR RELATED IN ANY WAY TO THE AGREEMENT OR ITS IMPLEMENTATION, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9. Miscellaneous

9.1 Neither Party may assign the Agreement, in whole or in part, by operation of law or otherwise, without the prior written consent of the other; provided, however that either party may assign its rights or delegate its duties under the Agreement, in whole or in part, without the other's consent, in connection with a merger, reorganization or sale of all, or substantially all, of the assignor's assets, provided that the successor entity shall have sufficient resources to fully perform the Agreement and shall assume the obligation to fully perform the Agreement.

9.2 The Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to contracts entered into and wholly to be performed therein, without regard to that body of law relating to conflict of laws. Each party hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the State of New York and of the United States of America, in each case located in the County of New York, for any claim arising out of or relating to the Agreement (and agrees not to commence any claim relating thereto except in such courts).

9.3 No press releases or general public announcements shall be made without the mutual consent of Advertiser and PubExchange. PubExchange shall have the right to include Advertiser’s name on PubExchange’s client list and in other marketing materials.

9.4 All notices under the Agreement will be in writing and will be delivered by personal service, confirmed fax, express courier, or certified mail, return receipt requested, to the address of the receiving party set forth on the IO, 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.

9.5 No failure of either party to enforce any of its rights under the Agreement will act as a waiver of such rights. If one or more provisions of the Agreement are held to be unenforceable under applicable law, then such provision(s) shall be excluded from the Agreement, and the balance of the Agreement shall be enforceable in accordance with its terms.

9.6 Neither party shall be liable for any delay or failure to perform any of its obligations set forth in the Agreement due to causes beyond its reasonable control. Neither party shall be liable for any unavailability or inoperability of the Internet, technical malfunction, or computer error or corruption resulting in loss of data or other harm.

9.7 Sections 5, 7, 8 and 9, together with any outstanding undisputed payment obligation, shall survive the termination of the Agreement.

9.8 Advertiser and PubExchange shall each act as independent contractors. Nothing in the Agreement shall be deemed or create or construed as creating a joint venture or partnership between the parties.

9.9 The 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. In no event shall any purchase order, insertion order, invoice or other document submitted by Advertiser concerning the subject matter hereof have any force or effect unless signed by PubExchange.

Version Control

https://github.com/pubexchange/legal