The following terms and conditions shall be deemed incorporated by reference into each insertion order ("Insertion Order") entered into between RadiumOne, Inc. ("RadiumOne") and the publisher identified below ("Publisher"). These terms and conditions and the applicable Insertion Order shall be collectively known as the "Agreement."
RadiumOne's online publisher program consists of advertising management and monetization services, including (a) supplying Advertisements ("Advertisements") for display on Publisher's site(s) (the "Site") as outlined in the applicable Insertion Order; and (b) offering the functionality for users of Publisher's site(s) ("Users") to earn points, or certain types of virtual currencies, in exchange for signing-up for Advertisements shown to Users and/or facilitating direct payments from Users via credit card, stored value or debit card, PayPal transfer, bank transfer, mobile billing, or any other payment source. Publisher will deliver the advertisements provided by RadiumOne either as described in each Insertion Order or as selected by Publisher through our online publisher application for the benefit of RadiumOne in connection with RadiumOne's advertising service (the "RadiumOne Service").
2. Advertisement Specifications; Implementation.
Publisher agrees to deliver all Advertisements in accordance with the Agreement, including any placement requirements and technical specifications provided by RadiumOne to enable proper display of such Advertisements on a reasonably balanced delivery schedule. Any exceptions must be approved by RadiumOne in writing. Publisher will be solely responsible for any and all costs Publisher incurs for the delivery of the Advertisements in accordance with such specifications and for any programming related to the same which Publisher elects to undertake. In no event shall Publisher modify or alter the content, text or appearance of any Advertisements without RadiumOne's prior written consent.
3. Terms of Payment.
RadiumOne shall pay Publisher a share of Net Advertising Revenue for Advertisements actually delivered by Publisher, due and payable within thirty (30) days after the end of each calendar month; provided that amounts of less than two hundred and fifty dollars ($250.00) will be held until amounts due equal or exceed two hundred and fifty dollars ($250.00). RadiumOne's standard revenue share at the time the Advertisement is running will apply. Publisher understands and agrees that any revenue share set forth on an Insertion Order is an estimate only, and that the actual revenue share paid to Publisher may vary. "Net Advertising Revenue" means gross revenues billed for Advertisements less deductions for fraud, chargebacks, refunds, credit card processing fees, uncollected amounts, agency fees and referral fees. Publisher shall be solely responsible for the payment of, and shall pay when due and indemnify RadiumOne against, all applicable federal and state taxes, including any sales, use, excise or transfer taxes and other taxes associated with payments to Publisher under this Agreement (except for taxes assessed on RadiumOne's net income).
RadiumOne will not be obligated to pay for any fraudulent actions generated by any person, bot, automated program or similar device in connection with any Advertisements provided by RadiumOne, as reasonably determined by RadiumOne, provided that RadiumOne provides reasonable documentation to Publisher with respect thereto.
Publisher will provide prompt electronic or written confirmation to RadiumOne that Publisher has initiated delivery of Advertisements. Publisher will provide electronic or written reports to RadiumOne on a weekly basis, summarizing the parameters specified in the Insertion Order (e.g., creative execution, content area, Actions, etc.).
RadiumOne agrees not to transmit any Advertisement to Publisher that is unlawful, defamatory, libelous, harassing, abusive, fraudulent or obscene. Publisher may also request that RadiumOne block Advertisements from a list of specified domain names (each, a "Blocked Domain") attached as an appendix to the Insertion Order, which list may be updated by Publisher only upon RadiumOne's prior written approval. RadiumOne will use commercially reasonable efforts to block Advertisements from Blocked Domains from the collection of Advertisements provided to Publisher for display at the Site.
7. Compliance with Laws.
Publisher agrees that it will deliver the Advertisements in compliance with all applicable local, state, national and international laws, rules and regulations, including any laws regarding the transmission of technical data exported from Publisher's country of residence. Publisher will not, will not agree to, and will not authorize or encourage any third party to (a) interfere or attempt to interfere with the proper working of the RadiumOne Service or prevent others from using the RadiumOne Service; or (b) use the RadiumOne Service for any fraudulent or unlawful purpose. Violation of any of the foregoing may result in immediate termination of this Agreement, at RadiumOne's sole discretion, and may subject Publisher to state and federal penalties and other legal consequences. RadiumOne reserves the right, but will have no obligation, to review Publisher's display of Advertisements and use of the RadiumOne Service in order to determine whether a violation of this Agreement has occurred or to comply with any applicable law, regulation, legal process, or governmental request.
8. Use of Data and Privacy.
9. Representations and Warranties.
Without limiting any other representation, warranty or covenant herein, each party hereby represents and warrants to the other party that: (a) it has the full right, power and authority to enter into this Agreement; (b) this Agreement is a valid and binding obligation of such party; and (c) it has obtained and shall maintain throughout the term of this Agreement all necessary licenses, authorizations, approvals and consents to enter into and perform its obligations hereunder in compliance with all applicable laws, rules and regulations.
Each party agrees to indemnify and hold the other party and its affiliates harmless from and against any losses, costs, liabilities and expenses, including attorneys' fees, arising out of any third party claims resulting from the breach of the representations, warranties and covenants made by such party herein. The indemnifying party reserves the right, at the indemnifying party's expense', to assume the exclusive defense and control of any matter for which the indemnifying party is required to indemnify the indemnified party and the indemnified party agrees to cooperate with the indemnifying party's ' defense of such claims.
11. Disclaimers; No Warranties.
EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8, RadiumOne MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY MATTER, INCLUDING WITHOUT LIMITATION ADVERTISING AND OTHER SERVICES, AND EXPRESSLY DISCLAIMS THE WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE. RadiumOne DOES NOT WARRANT THE RESULTS OF USE OF THE RADIUMONE SERVICE, INCLUDING, WITHOUT LIMITATION, THAT PUBLISHER WILL EARN ANY PARTICULAR AMOUNTS (OR ANY AMOUNTS) HEREUNDER.
12. Limitation of Liability and Damages.
UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, WILL RadiumOne OR ITS AFFILIATES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES THAT RESULT FROM THIS AGREEMENT, EVEN IF RADIUMONE OR AN RADIUMONE AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT IN THE CASES OF BREACHES OF SECTION 13, IN NO EVENT WILL RADIUMONE'S OR ITS AFFILIATES' TOTAL LIABILITY TO PUBLISHER FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE) EXCEED THE AMOUNTS PAID OR PAYABLE TO PUBLISHER FOR ADVERTISEMENTS ACTUALLY DELIVERED BY PUBLISHER PURSUANT TO THE INSERTION ORDER TO WHICH THE CLAIM RELATES.
Publisher acknowledges that RadiumOne will provide third-party Advertisements using its RadiumOne Service for display on the Site pursuant to this Agreement, and Publisher will use commercially reasonable efforts to assist RadiumOne in implementing such technology. Publisher agrees that it will use any data (including any usage data and compilations thereof), information or software provided by RadiumOne to Publisher only for the purpose of providing Advertisements for RadiumOne on the Site as set forth in this Agreement. RadiumOne will own and retain all rights, title, and interest in and to the RadiumOne Service (except for any licensed content and third-party Advertisements included therein), including all data (including any usage data and compilations thereof), information and software related thereto. Publisher acknowledges that the software, information and data related to the RadiumOne Service (including, without limitation, any usage data or compilations thereof) are protected by RadiumOne copyrights and may contain trade secrets or other intellectual property owned by RadiumOne. Publisher agrees not to copy, alter, modify, or create derivative works of any such data, information or software or the RadiumOne Service or otherwise use the RadiumOne Service or any such data, information or software in any way that violates the use restrictions contained in this Agreement. RadiumOne does not grant to Publisher any license, express or implied, to the intellectual property of RadiumOne or its licensors.
"Confidential Information" shall mean (a) the Advertisements, prior to publication; (b) the existence or content of the Insertion Order; (c) any data (including any usage data and compilations thereof), information or software relating to the RadiumOne Service; and/or (d) any other information designated in writing, or identified orally at time of disclosure, by the disclosing party as "confidential" or "proprietary." During and after the term of this Agreement, neither party will use for any purpose, or disclose to any third party, any Confidential Information of the other party except as specifically permitted herein. The foregoing restriction does not apply to information that: (a) has been independently developed by the receiving party without access to the other party's Confidential Information; (b) has become publicly known through no breach of this Section 13 by the receiving party; (c) has been rightfully received from a third party authorized to make such disclosure; (d) has been approved for release in writing by the disclosing party; or (e) is required to be disclosed by a competent legal or governmental authority, provided that the receiving party gives the disclosing party prompt written notice of such requirement prior to disclosure and assists in obtaining an order to protect the information from public disclosure.
15. Term; Termination.
The term of this Agreement will be one (1) year from the date that Publisher's application is accepted by RadiumOne. RadiumOne may terminate this Agreement at any time for any reason or for no reason upon seven (7) days' prior written notice to Publisher. In addition, in the event of a material breach by one party, the non-breaching party may terminate this Agreement immediately without prior notice or cure period. In the event of any termination, RadiumOne will remain liable for any amount due for Advertisements actually delivered prior to the effective date of termination and such obligation to pay shall survive any termination of this Agreement.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by Publisher, but may be assigned by RadiumOne to an entity that succeeds to all or substantially all of RadiumOne's business or assets. RadiumOne and Publisher are independent contractors, and neither RadiumOne nor Publisher is an agent, representative or partner of the other. This Agreement sets forth the entire agreement between RadiumOne and Publisher, and supersedes any and all prior agreements (whether written or oral) with respect to the subject matter set forth herein. Any dispute hereunder will be negotiated in good faith between the parties within forty-five (45) days commencing upon written notice from one party to the other. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to principles of conflicts of law. Publisher agrees that any action at law or in equity arising out of or relating to this Agreement will be filed only in the state or federal courts in and for Alameda County, California, and Publisher hereby consents and submits to the personal and exclusive jurisdiction of such courts for the purposes of litigating any such action. This Agreement may be amended only by a writing executed by a duly authorized representative of each party. Any notices under this Agreement shall be sent to the addresses set forth in the Insertion Order (or in a separate writing) by facsimile or nationally recognized express delivery service and deemed given upon receipt. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party. If any provision contained in this Agreement is determined to be invalid, illegal, or unenforceable in any respect under any applicable law, then such provision will be severed and replaced with a new provision that most closely reflects the original intention of the parties, and the remaining provisions of this Agreement will remain in full force and effect.