This Publisher Agreement (“Agreement”) is entered into by and between June Media, Inc., a Delaware corporation, with a principal place of business located at 132 West 36th Street, New York, NY 10018 (“Company”), and the applying affiliate submitting the Affiliate Network Application (“Publisher”) (each referred to herein as a “Party” and jointly as the “Parties”).
This Agreement, together with any previously posted amendments, schedules, attachments and/or exhibits, govern your participation as a “Publisher” and member of the Company Network, as that term is defined herein below, a non-exclusive, online, performance-based marketing network sponsored by Company. As used herein, the terms “you” and “your(s)” shall refer to the corporate or individual entity owning, either directly or indirectly, the referring URL of Publisher as employed in the Company Network as contemplated herein.
From time to time, Company may amend, supplement or replace entirely this Agreement by: (i) posting an updated version of this Agreement, or associated supplements, amendments or exhibits thereto (collectively the “Updated Agreement”) on the Company website; and/or (ii) if, in the reasonable judgment of Company the changes made to the Updated Agreement are deemed material, notifying Publisher via e-mail at the address provided by Publisher in the Application (as that term is defined herein below). The Updated Agreement shall be deemed effective five (5) business days after the later of such posting on the Company Web site or e-mail transmission to you (the “Effective Date”) and you will be conclusively deemed to have consented to, and agreed to be bound by, the Updated Conditions unless your termination notice is received by Company prior to the Effective Date; provided, however, that no provision of the Updated Agreement will affect your right to receive any Commissions (as that term is defined herein below) earned by you prior to the Effective Date.
• “Advertisement” means the graphic or text file(s) contained in the Company Network and available for Publishers’ use including, without limitation, all banners, buttons, links, clicks, co-registrations, pop-ups, pop-unders, e-mails, tests, and any other electronic promotion or similar online media.
• “Advertiser” means the advertiser or advertising agency providing Advertisements to Company for use on Publisher’s Web site(s), Publisher’s E-mails or Publisher’s SEM, as permitted by the Company Network.
• “Campaigns” means the Advertiser marketing campaigns offered through the Company Network featuring the Advertiser’s product and/or service offerings.
• “Click-Through” means the number of times, as recorded by Company’s server, that a User directly interacts with (i.e., clicks on) an Advertisement linked for transfer to the Advertiser’s Web site or suggested destination. Advertising campaigns conducted on a cost per click basis are known as “CPC.” Click-Throughs are considered valid and counted where recorded for Unique, Valid Users during any given twenty-four (24) hour period during a Campaign.
• “Company Network” means a non-exclusive, online, performance-based marketing network sponsored by Company comprised of Company’s affiliated group of third-party publisher Web sites or databases by which Company, through its affiliated third-party publishers, provides marketing services for its Advertisers.
• “Compensable Transaction” means a User’s completion of the act requested by the applicable Advertiser which may include, without limitation, valid sales, leads, Unique Sign-Ups, applications, accounts, clicks, impressions or other compensable activities, that will apply for each Campaign; provided, however, that if a User is directly compensated by Publisher for completing such required action, excluding any inducements included in the Advertisements provided by the applicable Advertiser, such action shall not be considered a valid Compensable Transaction.
• “Double Opt-In” means that the User has Opted-In and subsequently confirmed the underlying Opt-In action by responding to an e-mail confirmation from Company.
• “Impression” means the number of times an Advertisement is served to a User. Impressions shall be measured by Company in accordance with its standard methodologies and protocols. Campaigns conducted using Impressions as the Compensable Transaction are known as “CPM.”
• “Opt-in” means that the User has made an active, affirmative choice to take the applicable action associated with the subject Advertisement in question in order to be counted as a Compensable Transaction. For purposes of this Agreement, forced, negative choice, passive, opt-out or other types of non-active, non-affirmative choice actions shall NOT be considered “Opt-in” actions.
• “Publisher Databases” means those e-mail addresses listed in Publisher’s database and/or any other database affiliated with, partnered with, owned, operated and/or controlled by Publisher.
• “Publisher SEM” means Publisher’s use of search engine marketing, on a platform such as Google, Yahoo or any other search platform, to post Advertisements, as permitted by Company and subject to the restrictions and obligations contained herein.
• “Publisher Web Sites” mean Publisher’s Web site and/or any other Web site affiliated with, partnered with, owned, operated and/or controlled by Publisher; provided, however, that for purposes of this Agreement, Publisher’s Web Sites shall be limited to the specific Uniform Resource Locators (“URLs”) provided by Publisher to Company in the Account Registration section of the Company Web site. If at any time Publisher wishes to use additional URLs as Publisher Web Sites under this Agreement, Publisher must submit a prior written request to Company and await Company’s express approval.
• “Start Date” means the first day an Advertisement may be displayed on Publisher Web Sites, in e-mail messages to Publisher Databases and/or Publisher SEM as made available by and through the Company Network.
• “Stop Date” means the last day an Advertisement may be displayed on Publisher Web Sites, in e-mail messages to Publisher Databases and/or Publisher SEM as made available by and through the Company Network.
• “Unique Sign-Up” means a User that Opts-In or Double Opts-In to a Web site where such User: (i) is not already a member of, or registered with, the applicable Advertiser; (ii) provides all information requested by Advertiser; and (iii) is not compensated, directly or indirectly, for providing the required information unless Advertiser offers such compensation in the applicable Advertisement.
• “User” means any person accessing a Web site or e-mail sent by Publisher.
• “Web site” means an HTML document containing a set of information publicly available via the Internet.
1. The Company Network. The Company Network allows interested third-party Publishers including, but not limited to, marketers, advertisers and advertising agencies to obtain Advertisements for various Advertiser products and/or services for the purpose of marketing such products and/or services on Publisher Web Sites, in e-mail messages to Publisher Databases and/or by and through Publisher SEM, as authorized by each of Company and the applicable Advertiser. The ultimate terms and conditions of any Campaign (“Campaign Terms”) will be determined by the applicable Advertiser and shall be set forth in the applicable area of the Company Web site corresponding to the applicable Campaign. Advertiser shall set forth the applicable Compensable Transaction in the Campaign Terms.
• To begin the enrollment process as a third-party publisher on the Company Network, you must: (i) execute this Agreement; (ii) submit a complete and accurate Company Network Publisher Application (“Application”) as same appears on the Account Information page of the Company Web site; and then (iii) click the “Submit” button. By clicking on the “Submit” button you acknowledge that you have read, accepted and agree to be bound by the terms and conditions contained in the Application, as well as this Agreement, as same may be modified from time to time. To join the Company Network as a third-party publisher, you must be an entity or an individual of at least eighteen (18) years of age, with the requisite equipment and Internet connection to access the Company Network. Company will evaluate your Application and promptly notify you of your Application acceptance or rejection by an e-mail, via the email address that you supply as a part of your Application (“Application E-mail”). Should you be accepted, the Application E-mail shall contain further instructions for Publisher regarding participation in the Company Network. If Publisher does not begin participation in the Company Network in a timely manner upon receipt of an Application E-mail notifying Publisher of acceptance, then such acceptance shall be revoked and Company shall have no obligation to Publisher hereunder. If any of the information supplied as part of your Application changes, at any time, you must immediately inform Company of same to reflect such changes in your Publisher profile.
• Company may reject your Application and/or terminate your participation in the Company Network at any time and for any reason, in Company’s sole discretion. Such reasons may include, without limitation: (i) where Company believes that you are in any way in breach of this Agreement; (ii) where Company believes that your Publisher Website(s), Publisher E-mail(s) and/or Publisher’s SEM do(es) not feature User-friendly web site and/or Internet navigation; and/or (iii) where Company believes that your Publisher Website(s), Publisher E-mail(s) and/or Publisher’s SEM is/are unsuitable for the Company Network for any reason including, without limitation, that the Publisher Website(s), Publisher E-mail(s) and/or Publisher SEM contain(s) or link(s) to material that could be considered unlawful, harmful, threatening, defamatory, obscene, harassing, false or deceptive advertising, promoting gambling, pornography, comparative advertising, infringing content, machine-readable code that could be unintentionally downloaded onto a recipient’s computer (such as a worm, virus, Trojan Horse, spyware, adware or other self-executing computer program) or is otherwise objectionable. If Company, in the exercise of reasonable discretion, determines Publisher Website(s), Publisher E-mail(s) and/or Publisher’s SEM to be ineligible, all Commissions, whether earned or unearned by Publisher, shall be forfeited.
• Upon acceptance by Company and, where applicable, Advertiser, of a properly completed Application, Company and such Advertiser: (i) hereby grant to Publisher a nonexclusive, limited, revocable license to use the Company Network in accordance with the terms, and during the term, of this Agreement; (ii) shall make available, on the Company Network, Advertisements for placement on Publisher Web Sites, in e-mail messages to Publisher Databases and/or by and though Publisher SEM; and (iii) hereby grant to Publisher a nonexclusive, limited, revocable license to market display, perform, copy, transmit and promote the Advertisements on Web Sites, in e-mail messages to Publisher Databases and/or through Publisher SEM in compliance with the terms set forth hereunder.
• Advertiser(s) may terminate Publisher’s participation in any Campaign at any time and for any reason.
2. Log-in Name and Password. Upon acceptance of your Application, Publisher will be issued a unique log-in name (“Log-in Name”) and a password (“Password”) to access Publisher’s Company Network account (“Publisher Account”). Publisher will have the option to change the assigned Log-in Name and Password after the first time Publisher accesses the Publisher Account using the assigned Log-in Name and Password. Publisher’s use of these identifiers is limited only to Publisher, and they may not, under any circumstances, be distributed to any other person or entity. Publisher shall be responsible for maintaining the confidentiality of the Publisher Account, Log-in Name and Password, and Publisher shall be responsible for all usage and activity on the Publisher account and for loss, theft or unauthorized disclosure of your password. Publisher shall provide the Company with prompt written notification of any known or suspected unauthorized use of Publisher Account or breach of the security.
3. During this Agreement You may apply to Advertiser Programs for the opportunity to earn Payouts by promoting Advertisers in accordance with the Advertiser’s Program terms and complying with this Agreement. Upon approval by the Advertiser for acceptance into its Program, You may display (and remove) Links to Advertiser’s Website or Website content in accordance with the Advertiser’s Program terms and this Agreement. An Advertiser’s acceptance of You extends only to the entity, or individual, that enters into this Agreement with the Company.
4. Special Rules Governing E-Mail Campaigns. Publisher represents and warrant that Publisher will not engage in and/or facilitate spamming, indiscriminate advertising or unsolicited commercial email or otherwise fail to comply with including but not limited to the Directive on Privacy and Electronic Communications (2002/58/EC), the Electronic Signatures Directive (1999/93/EC), the Electronic Commerce Directive (2000/31/EC), the Distance Contracts Directive 97/7/EC, the Data Protection Acts 1988 – 2003 and Directive 95/46/EU, any other EU Regulations, Directives, Decisions or Guidelines on data protection or data privacy and guidance issued by the Data Protection Commissioner of Ireland, (or any successor legislation) as may be implemented into national law/regulations, laws and/or regulations that govern email marketing and/or communications. Publisher represents and warrants that Publisher will not engage in pop-up or pop-under advertising using any means involving third party properties and/or services (software). Pop up/unders are acceptable on a first party basis only when triggered by Publisher site content /site visit or by downloadable software applications for which Publisher is the owner/operator. Pop up/unders delivered through downloadable software cannot engage in means that force clicks or perform redirects, or pop over a pay-per-click listing or natural search results. Pop up/unders must honor the Company Publisher Code of Conduct requirements (as such requirements may be modified from time to time), including but not limited to: (i) installation requirements, (ii) end-user agreement requirements, (iii) afsrc=1 requirements, (iv) requirements prohibiting usurpation of a Transaction that might otherwise result in a Payout to another Publisher (e.g. by purposefully detecting and forcing a subsequent click-through on a link of the same Advertiser) and (v) non-interference with competing advertiser/ publisher referrals.
• Publisher is responsible for knowing the source of the e-mail addresses contained in the Publisher Databases. E-mail addresses used in connection with the Publisher Databases hereunder may not be obtained by the use of a program for random generation of e-mail addresses and/or “scraping” Web sites or other online services. Publisher must have full Consent Verification (as that term is defined hereinbelow) data for all e-mail addresses contained in the Publisher Databases.
• Publisher shall cause a valid physical postal address for Publisher and/or the applicable Advertiser, as required by applicable law, to appear in each e-mail Advertisement, along with a functioning unsubscribe link (such unsubscribe link must remain active for at least thirty (30) days after e-mail delivery). Publisher must process all unsubscribe requests within ten (10) days of receipt of same. Publisher may not sell or transfer an e-mail address once the e-mail address owner has opted-out of receiving future communications from Publisher.
• Publisher may not use an Advertiser’s name (including any abbreviation thereof) in the originating e-mail address line or subject line of any e-mail transmission.
• No e-mails transmitted by Publisher hereunder may include falsified header information, false registrations for e-mail accounts or false IP addresses used in connection with such e-mail transmissions or re-transmissions of e-mails for the purpose of concealing such e-mail’s origin. Publisher is further prohibited from relaying or retransmitting e-mails from a computer or computer network that was accessed without authorization.
• Subject lines may not contain any false or misleading information such that it would likely mislead a reasonable recipient as to the content or subject matter of the underlying e-mail message. Publisher may only use approved Subject Lines made available for use in connection with the applicable Campaign or other Subject Lines for which it has received written approval from Company.
• Each e-mail must identity itself as an advertisement or solicitation by “clear and conspicuous” means.
• Company may make available, at a Company-designated FTP site (“FTP Site”), a suppression list (and associated login information), updated on a regular basis, generated from e-mail campaigns transmitted by and/or through the Company Network for Publisher’s use in connection with applicable Campaigns. Publisher shall upload its own list of suppressed e-mail addresses to the FTP Site, if one is provided by Company. If the FTP Site is provided by Company, and no such suppressed e-mail addresses are supplied by Publisher, then Company may conclude that no such addresses exist. The suppression list and login provided by Company are deemed to be Confidential Information of Company, as defined herein. Suppression lists may not be used by Publisher for any purpose other than to comply with applicable laws regulating e-mail transmissions. Publisher agrees to process any unsubscribe requests within five (5) days of being posted at the FTP site.
4. Use of Advertisements. Publisher shall not alter, modify or otherwise change the Advertisements, or any other Advertisement-related feature, that it obtains access to in connection with any Campaign in any manner whatsoever without Company’s prior express written consent. Unless otherwise stated in writing by Company, each of the Advertisements made available to Publisher in relation to any Campaign must include, in unaltered form, the Company special transaction tracking codes as embedded in all Advertisements (the “Transaction Tracking Codes”). Publisher will not knowingly, modify, circumvent, impair, disable or otherwise interfere with any Transaction Tracking Codes and/or other technology and/or methodology required or made available by Company to be used in connection with any and all Advertisements. No images, graphics, links, co-registration paths, pop-ups, pop-unders, copy or process for generating actions other than the Advertisements may be used by Publisher without first obtaining the prior express written consent of both Company and the applicable Advertiser. Publisher must place or use the Advertisements only with the intention of delivering valid Compensable Transactions as determined by, and for the benefit of, the applicable Advertiser. Publisher may not, nor knowingly permit any person to, activate an Advertisement or inflate the amount of Compensable Transactions through any deceptive or misleading practice, method or technology including, but not limited to, the use of any spyware, adware, device, program, robot, Iframes, hidden frames, redirects, automatic page-spawning, spiders, computer script or other automated, artificial or fraudulent methods designed to appear like an individual, real live person performing a Compensable Transaction. Publisher may not establish or cause to be established any promotion that provides any incentive including, but not limited to, sweepstakes entries, rewards, points or other compensation to be earned in connection with generating Compensable Transactions, or otherwise attempt to induce Users to click on any of the Advertisements through use of any other incentives, without obtaining the prior written approval of Company and the applicable Advertiser. In connection with Publisher’s SEM or otherwise, Publisher may not, nor knowingly permit any person to, use third-party trademarks without the express permission of the trademark holder in any fashion that would direct traffic to any Publisher Web site, Advertiser Web site or other online destination including, but not limited to, purchasing keywords from a search engine service provider that include the trademark, service mark and/or brand name, or any derivative of any such trademark, service mark or brand name, of any of the Advertisers, Company and/or any of their respective affiliates or clients. Publisher may not allow the Advertisements to be placed on any non-Publisher Web site or in e-mails to any non-Publisher Databases without the prior express written consent of both Company and the applicable Advertiser.
Company and/or the applicable Advertiser may alter, modify and/or terminate, at any time, any Advertisements associated with any Campaign. Publisher must promptly remove such Advertisements after any such termination and/or after any termination or expiration of the applicable Campaign. All determinations made by Company in connection with the Advertisements, Compensable Transactions and any associated Commissions due to Publisher shall be final and binding on Publisher. Notwithstanding the foregoing, Company’s services do not involve investigating or resolving any claim or dispute involving Publisher and any Advertiser or other third-party. Publisher may not use any Advertisements or any other Company Network Campaign information, terms and/or content in connection with aggregating, soliciting or recruiting Advertisers, other Publishers, other Web sites or other persons to form or join an affiliate marketing, advertising or similar network for the purpose of engaging in business of the type conducted by Company. Company reserves the right to audit any Web site traffic at any time and for any reason, or no reason at all. Should Company determine, in the exercise of its reasonable business judgment, that Publisher has undertaken any fraudulent methods to inflate Compensable Transactions described in this Section 4 or otherwise: (i) Publisher’s membership in the Company Network will be immediately terminated; (ii) any unpaid Commissions attributable to the subject Campaign will be immediately voided, whether or not earned; and (iii) upon demand, Publisher will return to Company immediately any Commissions attributable to the subject Campaign that had been previously paid.
5. Placement of Advertisements. Unless otherwise specified in the applicable Campaign Terms or by Company at any time, and subject to the restrictions contained herein, the positioning, placement, frequency and other editorial decisions related to Advertisements shall be made by Publisher. Publisher must comply, immediately, with any and all requests by Company and/or the applicable Advertiser to modify, alter or otherwise change the positioning, placement, frequency and other editorial decisions as they relate to Advertisements.
6. Guidelines. In addition to the other terms and conditions set forth in this Agreement, the Application and the Campaign Terms, if any, the following guidelines shall apply at all times:
• All URLs submitted for inclusion as Publisher Web sites are subject to review and may be rejected for any reason by Company. The following are examples of the types of Web sites that will not be accepted: adult Web sites containing pornographic or offensive material; Web sites engaged in the piracy or unauthorized use of copyrighted, trademarked, or patented material; software trading (warez) Web sites; hacking/phreaking Web sites; libelous or defamatory Web sites; Web sites containing software piracy; and/or Web sites with any illegal activity whatsoever. The examples are meant to be illustrative only and under no circumstances shall be construed as an exhaustive list.
• Only Unique Sign-Ups shall qualify as Compensable Transactions. Non-Unique Sign-Up data will not be paid on. Upon payment for the Unique Sign-Up, Company shall have no further obligation to Publisher. Company and/or its Advertisers, in their sole discretion, shall have the right to market and re-market the person(s) and or data represented in the Unique Sign-Up, without further obligation to Publisher.
• If required by the Advertiser, Unique Sign-Ups and/or leads must be valid Double Opt-Ins in order to be considered valid Compensable Transactions. Where specified by the applicable Advertiser in the Campaign Terms, any Unique Sign-Ups and/or leads that are not valid Double Opt-Ins and/or that do not complete all the required information will not be considered Compensable Transactions. Publisher and Company acknowledge that any of the data contained in any leads rejected as invalid Unique Sign-Ups and/or leads may, on occasion, be retained and marketed by the Advertiser and/or Company, to the extent possible. Please be advised that the Commission rate for Unique Sign-Ups and/or leads offered to and accepted by Publisher has factored in compensation for such invalid data, and the price for valid Unique Sign-Ups and/or leads without this consideration would otherwise be lower.
2.2. 6.4 Publisher must not: (i) place statements near the Advertisements requesting that Users “click” on the Advertisement (i.e., “Please “click here”) or “visit” the sponsor (i.e., “Please visit our sponsor.”); or (ii) place misleading statements near the Advertisement (i.e., “You will win $5,000.”).
7. Reports. Company will provide Publisher with accurate, verifiable reporting on the Compensable Transactions for each Campaign, which shall include, without limitation, the number and amount of Compensable Transactions, and the date, time and URL(s) associated with such Compensable Transactions (“Publisher Reports”). The data in such Publisher Reports shall be used, in part, by Company to calculate the payments due to Publisher. Where Publisher believes that any of the Publisher Reports, or the calculation of the associated Compensable Transactions for such month, contain errors, Publisher must notify Company, in writing, within ten (10) business days of Publisher’s receipt of such Publisher Report. Company will review the records in dispute and will decide whether to issue a credit to Publisher equal to any invalid reporting, in its sole discretion. Any Commissions-related dispute between Publisher and any Advertiser must be resolved by Publisher and that Advertiser. In the event that Company is in receipt of funds from an Advertiser for the purpose of paying Commissions to Publisher, and a dispute arises between Publisher and the applicable Advertiser regarding the amount of the funds that are due to Publisher, Company shall be entitled to return such funds to the Advertiser, and to decline to offer further processing services until such dispute is resolved and Company is notified, in writing, by both parties that payments should resume. Publisher agrees that Company shall have no obligations and incur no liabilities to Publisher in connection with any such dispute. Unless disputed within the applicable period, the Publisher Reports will be deemed accepted by Publisher. If, due to any impairment of the Transaction Tracking Codes or any other reason, Company is unable or fails to provide Publisher with accurate and/or complete Publisher Reports, Company shall calculate Compensable Transactions (“Projected Compensable Transactions”) based upon: (i) the average monthly Compensable Transactions of Publisher as recorded by Company for the applicable Campaign, prorated for any shorter or longer period of time, where data is available to calculate a monthly average; or (ii) such amount that Company reasonably determines is due and owing, in its sole discretion, where data needed to calculate Publisher’s average monthly Compensable Transactions is unavailable.
8. Compensation. Company will pay Publisher commissions for each Compensable Transaction (“Commissions”) in the amounts, and at the times, as set forth in the applicable Campaign Terms associated with each Advertisement. Unless otherwise stated in the Campaign Terms, and subject to the restrictions contained in Section 8.3 hereinbelow, Commissions shall be paid to Publisher out of the funds collected from the applicable Advertiser.
• When Commissions are Earned. Commissions will be payable only when “earned.” Commissions will not be considered “earned” until Company receives the corresponding payment from the applicable Advertiser. Company reserves the right to reduce any and all Commissions owed to Publisher where Company has been unable to collect the associated payments from the applicable Advertiser(s). Company shall not be responsible to Publisher where Advertiser(s) has/have not remitted sufficient payments to cover the Commissions otherwise due and owing Publisher. Instead, Publisher shall have the right to pursue any and all legal remedies directly against any Advertiser that has not made funds available to pay sums due and owing to Publisher for Commissions earned in connection with a particular Campaign. Notwithstanding the foregoing, Company may elect to advance to you Commissions prior to those Commissions having been earned. Publisher acknowledges and agrees that its receipt of Commission payments prior to those Commissions having been earned is conditional and subject to Company’s right to demand return of unearned Commissions for any reason or for no reason at all.
• Minimum Commission Requirement for Regular Payment. Company shall not be obligated to make any payment of Commissions to Publisher unless the aggregate amount of earned Commissions equals or exceeds Fifty Dollars ($50.00). Any earned but unpaid Commissions shall carry over to the next regularly scheduled payment period. Upon termination of this Agreement, or Publisher’s participation in the subject Campaign, Company shall remit to Publisher any earned but unpaid Commissions.
• Charge-backs. An Advertiser may apply, or Company may apply, a debit to Publisher Account in an amount equal to a Payout previously credited to Publisher Account in circumstances of : (i) product returns; (ii) duplicate entry or other clear error; (iii) non-bona fide Transactions; (iv) non-receipt of payment from, or refund of payment to, the Visitor by the Advertiser; or (v) Publisher failure to comply with Advertiser’s Program terms or other agreement with Advertiser (“Charge-back”). Charge-backs may be applied to Your Account at any time, including previous payment cycles.
• Publisher is solely responsible for any and all tax obligations, if any, due to taxing authorities arising from or in connection with Publisher’s participation in the Company Network and/or any Campaign.
• Publisher may have a negative balance if a Publisher account is debited amounts equivalent to previous Payouts for Charge-backs and Publisher does not have an adequate Account balance to cover the Charge-back amounts. When You have a negative balance, You must immediately remit payment to JM in an amount sufficient to bring Your Account to a zero balance, or Your Account is subject to 1.5% interest per month, compounded monthly.
9. Confidentiality. All information relating to Publisher’s participation in the Company Network including, but not limited to, Publisher Reports, Transaction Tracking Codes, Publisher’s unique User Name and Password (as same were provided by Company), the identities of any Advertisers, Company’s Commission rates and pricing strategies, any calculation of amounts paid to Publisher hereunder and the number of sales, leads or customers acquired by Publisher for any Advertiser, shall be considered proprietary information of Company, shall be held in the strictest of confidence by Publisher and may not, without the prior written consent of Company, be disclosed by Publisher to any other person or entity, in any manner whatsoever, in whole or in part, and may not be used by Publisher directly or indirectly for any purpose other than in connection with operating under this Agreement as a Company Network Publisher.
• Ownership and Proprietary Content. Subject to the terms and conditions of this Agreement and any underlying Campaign Terms, Company grants to Publisher a revocable, non-transferable, royalty free, license to display on, and distribute through, the Publisher Web sites, Publisher SEM and/or in e-mails to the Publisher Databases, Advertisements, and any and all associated trademarks, service marks, tradenames and/or copyrighted material (“Intellectual Property Content”) that Company provides to Publisher through the Company Network for the limited purposes of promoting Campaigns to Users. Publisher may not remove or alter any copyright or trademark notices. Publisher agrees that its use of the Company Web site, Advertisements, any Company logos, trademarks or Transaction Tracking Codes is subject to the license granted hereunder and the Company Web site Terms and Conditions. The Intellectual Property Content and other matters related to the Company Network, Advertisements and the Company Web site are protected under applicable copyright, trademark and other proprietary (including, without limitation, intellectual property) rights. The use, copying, redistribution and/or publication by Publisher of any part of the Company Network, Advertisements and/or the Company Web site, other than as contemplated hereunder, is strictly prohibited. Publisher does not acquire any ownership rights to the Company Network, Advertisements and/or the Company Web site. The availability of the Company Network, Advertisements and the Company Web site does not constitute a waiver of any rights related thereto. All data, including but not limited to, Publisher Reports, Transaction Tracking Codes, campaign results, User data, statistical information, traffic analysis and/or other data produced or provided by Publisher, but excluding Publisher data, shall be deemed to be the property of Company.
• Limited Promotional License. Publisher hereby grants Company a limited, non-exclusive, revocable, worldwide license for the term of this Agreement to use, reproduce and distribute Publisher’s name (if Publisher is an individual), Publisher’s company name (if Publisher is a corporation), Publisher’s likeness (if Publisher is an individual), the Publisher Web site address(es), Publisher name and logo (if any) and any associated information in Company marketing materials and press releases, without compensation to Publisher.
• Use of Personal Data. Company currently uses and plans to continue to use some or all of the User data collected by and through the operation of the Company Network in an aggregate manner (i.e. information aggregated into demographic data, and not personally identifiable). In addition, Company currently uses and plans to continue to use some or all of the personally identifiable User data collected by and through the operation of the Company Network. The use of personally identifiable User data will be governed by Company’s privacy policies, as posted on the Company Web site and as modified from time to time.
• Company’s Covenants. Company covenants and agrees to use commercially reasonable efforts: (i) to provide, monitor and maintain the necessary technology applications required to operate the Company Network; (ii) to provide Publisher with Advertisements in useable formats; and (iii) to provide updates in connection with, changes to, or cancellations of, Advertisements, Campaign Terms and/or Campaigns as quickly as is commercially feasible.
• Publisher’s Covenants. Publisher covenants and agrees to use best efforts: (i) to continue to operate and maintain Publisher’s distribution channels (including any Publisher Databases and Publisher Web Sites) in a manner consistent with the intent and purpose of this Agreement; (ii) to place Advertisements in Publisher’s distribution channels in accordance with the terms set forth in this Agreement; (iii) to respond to any change notice promptly and, in any event, within one (1) business day of Company’s transmission of notice of such change; and (iv) to maintain the Publisher Databases in a manner that conforms with CAN-SPAM and industry best practices applicable to data collection and commercial e-mail transmission.
11. Non-Competition. Publisher recognizes that Company has proprietary relationships with the Advertisers and other third-party publishers that participate in the Company Network. Publisher agrees not to circumvent Company’s relationship with such parties, or otherwise solicit, induce, recruit or encourage, directly or indirectly, any Advertiser or third-party publisher that participates in the Company Network for purposes of providing or, where applicable, obtaining, advertising, marketing or promotional services similar to Company services and/or the Company Network, during the term of this Agreement and for the six (6) month period following termination or expiration of this Agreement. Notwithstanding the foregoing, to the extent that Publisher can show that any such third-party already obtained or, where applicable, provided, such services from/to Publisher prior to the date of this Agreement, then Publisher shall not be prohibited from continuing such relationship.
12. Termination. This Agreement shall continue until terminated by either Party pursuant to the terms hereof, but in no event less than the term set forth in any underlying Campaign Terms. Notwithstanding the foregoing, Company may, in its sole discretion, terminate this Agreement and/or any Campaign at any time, with or without cause. Termination by Company shall be effective immediately upon Publisher’s receipt of notice from Company. Publisher may, in its sole discretion, terminate this Agreement and/or any Campaign upon seventy-two (72) hours’ prior written notice to Company. In order for any termination by Publisher to be effective and binding on Company, such termination must be acknowledged in writing by an authorized officer of Company. If Publisher’s participation in the Company Network expires, terminates or is suspended for any reason, Company may, with or without notice, terminate or suspend all Campaign Advertisements then in use by Publisher immediately or, in Company’s discretion, at any time thereafter. Upon any expiration, termination or suspension of this Agreement and/or Publisher’s participation in the Company Network: (i) Publisher shall immediately cease to use and remove from the Publisher Web sites any and all Advertisements, other content and/or other materials made available to Publisher in connection with Publisher’s participation in the Company Network; (ii) Publisher shall immediately cease transmitting any and all e-mails to the Publisher Databases in connection with any Campaign; (iii) any and all licenses and rights granted to Publisher in connection with this Agreement shall immediately cease and terminate; and (iv) any and all Confidential Information, Intellectual Property Content or proprietary information of Company (including, as applicable, any confidential or proprietary information of any Advertiser made available to Publisher in the Company Network) that is in Publisher’s possession or control must be immediately returned or destroyed. If requested, Publisher will certify in a writing signed by Publisher or an authorized officer of Publisher that all such confidential and/or proprietary information has been returned or destroyed.
13. Warranty/Limitation of Liability. THE SERVICES PROVIDED BY COMPANY UNDER THIS AGREEMENT AND/OR ANY APPLICABLE CAMPAIGN, THE TRANSACTION TRACKING CODES, PUBLSHER REPORTS, COMPANY NETWORK, THE ADVERTISEMENTS AND THE UNDERLYING PRODUCTS AND SERVICES OFFERED THEREIN, ARE SUPPLIED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT OF THE LAW, COMPANY MAKES NO WARRANTIES (INCLUDING IMPLIED WARRANTIES OF PURPOSE AND NON-INFRINGEMENT), GUARANTEES, REPRESENTATIONS, EXPRESS, IMPLIED, ORAL OR OTHERWISE, OTHER THAN AS ARE EXPRESSLY SET FORTH HEREIN. THE COMPANY NETWORK, COMPANY WEB SITE, ADVERTISEMENTS, THE UNDERLYING PRODUCTS AND SERVICES OFFERED THEREIN, PUBLISHER REPORTS AND/OR TRANSACTION TRACKING CODES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. COMPANY HAS NO LIABILITY, WHATSOEVER, TO PUBLISHER OR ANY THIRD-PARTY, FOR ANY OTHER PARTY’S SECURITY METHODS OR PRIVACY PROTECTION PROCEDURES AND COMPANY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, ASSOCAITED WITH SAME. COMPANY HAS NO LIABILITY FOR PUBLISHER’S USE OF, OR INABILITY TO USE, THE COMPANY NETWORK, COMPANY WEB SITE, ADVERTISEMENTS, UNDERLYING PRODUCTS AND/OR SERVICES, PUBLISHER REPORTS AND/OR TRANSACTION TRACKING CODES AND COMPANY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, THAT PUBLISHER’S USE OF THE COMPANY NETWORK, COMPANY WEB SITE, ADVERTISEMENTS, UNDERLYING PRODUCTS AND/OR SERVICES, PUBLISHER REPORTS AND/OR TRANSACTION TRACKING CODES WILL BE UNINTERRUPTED OR ERROR-FREE. IN NO EVENT SHALL COMPANY BE RESPONSIBLE FOR ANY CONSEQUENTIAL, SPECIAL, PUNITIVE OR OTHER INDIRECT DAMAGES INCLUDING, WITHOUT LIMITATION, LOST REVENUE OR PROFITS, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY WILL NOT BE LIABLE, OR CONSIDERED IN BREACH OF THIS AGREEMENT, ON ACCOUNT OF ANY DELAY OR FAILURE TO PERFORM UNDER THIS AGREEMENT AS A RESULT OF CAUSES OR CONDITIONS THAT ARE BEYOND COMPANY’S CONTROL. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, COMPANY’S LIABILITY UNDER ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNTS PAID TO PUBLISHER BY COMPANY PURSUANT TO THIS AGREEMENT DURING THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. COMPANY SHALL NOT BE HELD LIABLE OR RESPONSIBLE FOR ANY ACTIONS OR INACTIONS OF ADVERTISERS.
15. Indemnification. Each Party shall defend, indemnify, and hold the other Party and its officers, directors, members, agents, affiliates, distributors, franchisees and employees (collectively, “Indemnified Affiliates”) harmless from and against any and all third party claims, losses, damages, actions, liabilities, expenses and/or costs (including, without limitation, reasonable attorney’s fees) arising out of any claim, demand, action, suit, investigation, arbitration or other proceeding brought by a third-party relating to the indemnifying Party’s material breach of any duty, representation or warranty arising under this Agreement. Publisher shall further irrevocably defend, indemnify and hold Company, its Advertisers, and each of their respective Indemnified Affiliates harmless from and against any and all liability, loss, damage and/or expense (including, without limitation, reasonable attorneys’ fees, costs and expenses) arising out of or related to any allegation, claim or cause of action, involving: (i) any third-party claim related to the Publisher Web sites, Publisher Databases (including any products, services or other material linked to or from the Publisher Web sites and/or the underlying e-mail messages delivered to the Publisher Databases) and/or Publisher’s marketing practices; (iii) any allegation that Publisher has infringed upon the trademark, trade name, service mark, copyright, license, intellectual property or other proprietary right of any third-party; (iv) any third-party allegation or claim against Company and/or its Advertiser(s) relating to a violation of any state and/or federal laws applicable to online marketing including, but not limited to, CAN-SPAM and/or any state and/or federal laws relating to privacy and deceptive trade practices; (v) any non-Campaign related content, goods or services offered, sold or otherwise made available by Publisher on and through the Publisher Web sites, Publisher Databases or otherwise; (vi) any claim that Company is obligated to pay any taxes in connection with Publisher’s participation in the Company Network; and/or (vii) Publisher’s participation in the Company Network, in any manner whatsoever. If the Party entitled to indemnification (“Indemnified Party”) becomes aware of any matter that it believes is indemnifiable hereunder involving any claim, action, suit, investigation, arbitration or other proceeding brought against the Indemnified Party by any third-party (each an “Action”), the Indemnified Party shall give the other Party (“Indemnifying Party”) prompt written notice of such Action. Such notice shall: (i) provide the basis on which indemnification is being asserted; and (ii) be accompanied by copies of all relevant pleadings, demands and other papers related to the Action and in the possession of the Indemnified Party. The Indemnified Party, with the Indemnifying Party and its counsel in the defense, shall have the right to participate fully, at its own expense, in the defense of such Action. If a dispute arises over whether the Party requesting indemnification hereunder is so entitled, the Party requesting indemnification shall be free, without prejudice to any of such Party’s rights hereunder, to settle or defend (and control the defense of) such Action. Any compromise or settlement of an Action shall require the prior written consent of both Parties hereunder; such consent will not be unreasonably withheld, conditioned or delayed.
• Waiver. The failure of either Party to insist upon or enforce strict performance by the other Party of any provision of this Agreement or to exercise any right under this Agreement will not be construed as a waiver or relinquishment to any extent of such Party’s right to assert or rely upon any such provision or right in that or any other instance; rather the same will be and remain in full force and effect.
• Force Majeure. Neither Party shall be liable for, or considered in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of acts of God, telecommunications, Internet or network failure, results of vandalism or computer hacking, strikes, fires, accidents or any other causes or conditions which are beyond such Party’s reasonable control and which such Party is unable to overcome by the exercise of reasonable diligence (including without limitation, the failure of Company to provide Advertisement(s) for placement on Publisher’s Web site(s)); provided that the non-performing Party gives reasonably prompt notice under the circumstances of such condition(s) to the other Party.
• Independent Contractors/Non-Endorsement. The Parties to this Agreement are independent contractors. Neither Party is an agent, representative, partner, employee or joint venturer of the other Party. Neither Party will have any right, power or authority to enter into any agreement on behalf of, or incur any obligation or liability on behalf of, or to otherwise bind, the other Party. Company operates the Company Network as a neutral host, and Company does not regularly monitor, regulate or police the use of the Company Network by any of its participants. An Advertiser or Publisher’s participation in the Company Network does not constitute an endorsement by Company of that Advertiser or Publisher. Company is not responsible or liable for the acts, omissions, agreements or promises of any Advertiser, Publisher or third party using the Company Network to enter into any transaction, agreement or other arrangement with any other person or entity.
• Survival. Any obligations which expressly or by their nature are to continue after termination, cancellation, or expiration of this Agreement shall survive and remain in effect after such happening including, but not necessarily limited to, Sections 8, 9, 10, 11, 13, 14 and 15.
• Construction/Severability. Each Party acknowledges that the provisions of this Agreement were negotiated to reflect an informed, voluntary allocation between them of all the risks (both known and unknown) associated with the transactions contemplated hereunder. Further that, all provisions are inserted conditionally on their being valid in law. In the event that any provision of this Agreement conflicts with the law under which this Agreement is to be construed or if any such provision is held invalid or unenforceable by a court with jurisdiction over the Parties to this Agreement: (i) such provision will be restated to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law; and (ii) the remaining terms, provisions, covenants and restrictions contained in this Agreement will remain in full force and effect.
• Remedies. Except as otherwise specified, the rights and remedies granted to a Party under this Agreement are cumulative and in addition to, not in lieu of, any other rights and remedies which the Party may possess at law or in equity.
• Entire Agreement. This Agreement includes any accepted Application(s) and/or applicable Campaign Terms as a material part hereof. This Agreement, together with any and all Application(s) and/or applicable Campaign Terms, constitutes the entire and only agreement and supersedes any and all prior agreements, whether written, oral, express, or implied, of the Parties with respect to the transactions set forth herein. Notwithstanding the foregoing, to the extent that anything in the Application(s) and/or applicable Campaign Terms contradicts this Agreement, this Agreement shall control.
• Amendment. Other than as expressly provided for herein to the contrary, no change, amendment or modification of any provision of this Agreement will be valid unless set forth in a written instrument signed by both Parties.
• Assignment. Other than as expressly provided for herein to the contrary, Publisher may not assign, transfer or delegate any of its rights or obligations under this Agreement and any attempt to do so shall be null and void. Company may assign this Agreement or any portion hereof at its sole discretion.
• Headings. The captions and headings used in this Agreement are inserted for convenience only and will not affect the meaning or interpretation of this Agreement.
• Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original and all of which together will constitute one and the same document.
• Governing Law, Jurisdiction and Venue. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the laws of the State of New York, without giving effect to its conflicts of law principles. Each Party irrevocably consents to the exclusive jurisdiction of the state and federal courts of New York County, New York, in connection with any action arising under this Agreement. The Parties agree that service by a major overnight courier (such as FedEx or UPS) shall constitute valid and effective service of process in any action arising under this Agreement.
• Notice. All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed given at the time such communication is sent by registered or certified mail (return receipt requested), or recognized national overnight courier service, or delivered personally, to the following address (or other address as shall be specified by like notice):
If to Company, to the attention of both the CEO and General Counsel, each at the address of:
June Media, Inc.
132 West 36th Street
New York, NY 10018
If to Publisher, to the executive and e-mail address set forth on the Application.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed and binding upon Publisher’s submission and Company’s acceptance of Publisher’s properly completed Application without need for further action by Company.