|
VERT MARKETS, INC.GENERAL TERMS AND CONDITIONS (AUGUST 2007 V.8)
SECTION ONE - SOFTWARE AND MARKETPLACE ACCESS
LICENSES
1.1
LICENSES
1.1.1 Software Rights. Subject to the terms of this
Agreement, Vert Markets grants to Company a personal, non-exclusive,
non-transferable, and non-sub licensable license, beginning on the
applicable Launch Date and continuing for the term set forth in the
Order Details, to access and use the Hosted Software in object code
form solely for the purposes described in this
Agreement.
1.1.2 Marketplace Access License. Subject to
the terms of this Agreement, Vert Markets grants to
Company a personal, non-exclusive, non-transferable license, beginning
on the applicable Launch Date and continuing for the term set forth
in the Order Details, to display a Web Presence on the Marketplaces
set forth in the Order
Details.
1.2 HOSTING
OF SOFTWARE. For the period beginning on the applicable Web Presence
Launch Date and continuing for the applicable term, Vert Markets shall
host on its equipment the Hosted Software, any Web Presence,
and Company's Content.
SECTION TWO - ADVERTISING
PRODUCTS
2.1 ADVERTISING
PRODUCTS. Upon the Launch Date and for the time period or the number
of Impressions, as applicable, set forth on the Order Details for
the applicable Advertising Product, Vert Markets shall display the
Advertising Product in the applicable Marketplaces, Marketplace
subscriber Newsletters, and selected client Newsletters set forth on
the Order Details.
2.2.1 Positioning, Display, and Use of Ads. Except as
expressly provided in this Agreement, all banner ads are run-of-site
ads unless specific web site pages are identified in the Order
Details, and the specific positioning of the Advertising Products
will be as determined by Vert Markets in its editorial discretion.
Company grants to Vert Markets the right and license to: (i) display
and transmit the Advertising Products through the designated
Marketplaces or throughout all Vert Markets sites as specified in
the Order Details; and (ii) to provide to its web site users access
to and use of the Advertising Products together with any content or
materials linked to the Advertising
Products.
2.2.2 Failure to Provide Required Content or Materials. Vert
Markets may alter the number of Impressions, shorten the
quantity or term, or delay the start date of any Advertising
Products if Content and/or other advertising materials required to produce and display
the Advertising Product are not provided in a timely
manner.
2.2.3 Ad Impressions. In the event that the number of
Impressions for an Advertising Product specified in the Order
Details are reached prior to the End Date or the completion of the
applicable term under the Order Details, Vert Markets may
discontinue the said Advertising Product. Vert Markets makes no
commitment with respect to "click-throughs." To the extent that
there is a shortfall in the number of Impressions as of the said End
Date or term completion, as Company's sole remedy and Vert Markets'
entire liability, Vert Markets will provide make-good Impressions
through substantially similar ad placements. Vert Markets may alter
an Advertising Product Start Date, End Date, or term as reasonably
required by trafficking or other operational requirements. In such
event, Vert Markets will provide to Company commercially reasonable
substitute dates.
SECTION THREE - TERMS AND
CONDITIONS
3.1 PAYMENT
Company
shall pay Vert Markets the fess in accordance with the payment terms
in the applicable Order Details.
3.2 TERM AND
TERMINATION
This Agreement shall continue in force and
effect until the last day of the last term of a Vert Markets
Product/Service to expire under this Agreement.
Short-Rate
Policy: A Short-Rate is the amount of money a company owes to settle
their obligation after canceling an advertising contract. The amount
is determined by applying the rate card price for the earned
insertion rate break (ie. 3x, 6x, 9x, 12x, etc) and subtracting the
price they were paying at the contracted rate. For example, a
customer signs a contract for a 12x schedule at $3000 per month.
They cancel after 6 insertions. The 6x rate is $4000 per month. The
short rate would be $4000 - $3000 = $1000 x 6 months = $6000. The
reason publishers charge a short rate
is to prevent companies from signing a large
schedule to get a frequency discount without intending to fulfill
the schedule.
3.3. OWNERSHIP AND
LICENSES
3.3.1 Vert Markets and its licensors retain all their
respective rights in the Software.
3.3.2. Vert Markets acknowledges and agrees that all rights
in the Content not expressly granted to Vert Markets hereunder are
and shall continue to be the sole and exclusive property of Company
or its third-party licensors.
3.3.3. Vert Markets retains sole right and control over the
programming and content of Vert Markets Marketplaces. If Vert
Markets redesigns the user interface of any Vert Markets
Marketplace, Vert Markets will display the Vert Markets
Products/Services in a comparable place and
format.
3.3.4. During the term of this Agreement, Company grants to
Vert Markets a non-exclusive, royalty-free, worldwide right and
license to use, reproduce, display, and transmit the Content solely
on or in conjunction with the Vert Markets Products/Services, and on
any applicable Syndicate Marketplace, in accordance with the terms
of this Agreement.
3.4
WARRANTY
3.4.1 Vert Markets warrants that, except as stated otherwise
herein, for the term of this Agreement, the Software, Hosting
Services, and Advertising Products as used within the scope of this
Agreement will be free from any Nonconformance. Vert Markets makes
no warranty with respect to conditions resulting from use not in
accordance with Vert Markets'
Specifications.
3.4.2 Company acknowledges and agrees that the operation of
the Marketplaces will not always be uninterrupted and error-free and
may be subject to temporary shutdowns due to causes beyond Vert
Markets' reasonable control and scheduled or unscheduled
maintenance.
3.4.3 Company represents and warrants that (a) Company has valid
existing rights to all Content which it has authorized Vert
Markets to use in accordance with this Agreement, and (b)
all Content Company displays or provides to Vert Markets or posts on the
Marketplaces do not and will not: (i) contain any known viruses, worms
or other computer code the purpose of which is to disable
or interrupt the operation of a computer system ; (ii) contain
any false, misleading, libelous or defamatory claims or statements;
(iii) contain any material that is obscene, pornographic or harmful
to minors; (iv) constitute an invasion of the rights of privacy or
publicity of any third party; (v) violate any applicable laws, rules
or regulations; (vi) promote any product or service which is
reasonably competitive with one or more of the products or services
offered by Vert Markets; or (vii) violate any Vert Markets generally
applicable advertising standards and practices, as such may be
modified from time to time.
3.4.4 Exclusive Remedies. For any breach by
Vert Markets of its warranties under this Agreement, Company's exclusive remedy and
Vert Markets' entire liability for such failure, shall be
Company may terminate this Agreement and receive a prorated refund
of amounts paid.
3.4.5 Disclaimer. THE WARRANTIES SET FORTH IN THIS SUBSECTION
ARE EXCLUSIVE AND IN LIEU OF, AND EACH PARTY DISCLAIMS, ALL OTHER
WARRANTIES, WHETHER EXPRESS, STATUTORY OR IMPLIED, INCLUDING ANY
WARRANTIES OF MERCHANTABILITY, TITLE OR FITNESS FOR A PARTICULAR
PURPOSE. VERT MARKETS DOES NOT WARRANT THAT THE OPERATION OF THE
SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. VERT MARKETS
SPECIFICALLY DISCLAIMS ANY WARRANTY REGARDING ANY BENEFIT COMPANY
MIGHT OBTAIN FROM ANY ADVERTISING
PRODUCT.
3.5
INDEMNITY
3.5.1 By Vert Markets. Vert Markets
will defend or, at its option, settle a claim brought against
Company by a third party (excluding affiliated entities of Company) that a
Vert Markets Product/Service, as used within the scope of
this Agreement, infringes a U.S. copyright, issued patent, trademark or trade
secret.
3.5.2 By Company. Company shall, at its expense and Vert
Markets' request, defend and/or settle any third-party claim or
action brought against Vert Markets, its affiliates, or their
respective employees relating to the Content or any other
information or materials posted through the Vert Markets
Products/Services on the internet by Company (a) containing any
false, misleading, libelous or defamatory statements, (b) containing
any material that is obscene, pornographic or harmful to minors, or
(c) constituting an invasion of the rights of privacy or publicity
of a third party.
3.7 LIMITATION OF
LIABILITY.
3.7.1 IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY
INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES,
OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR USE, INCURRED BY
THE OTHER PARTY OR ANY THIRD PARTY, UNDER ANY THEORY OF LIABILITY,
EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. THIS PROVISION SHALL NOT BE DEEMED TO REDUCE A PARTY'S
LIABILITY UNDER ANY INDEMNIFICATION PROVISION OF THIS
AGREEMENT.
3.7.2 NEITHER PARTY'S LIABILITY HEREUNDER SHALL EXCEED THE
AMOUNT PAID BY COMPANY UNDER THIS AGREEMENT FOR THE VERT
MARKETSPRODUCTS/SERVICES WHICH ARE THE SUBJECT OF THE CLAIM. THE
PARTIES ACKNOWLEDGE THAT THE LIMITATIONS SET FORTH IN THIS
LIMITATION OF LIABILITY SUBSECTION ARE AN ESSENTIAL ELEMENT OF THIS
AGREEMENT BETWEEN THE PARTIES AND THAT THE PARTIES WOULD NOT HAVE
ENTERED INTO THIS AGREEMENT WITHOUT SUCH
LIMITATION.
3.8 GENERAL
3.8.1 This Agreement and all matters arising out of or
relating to this Agreement shall be governed by the laws of the
Commonwealth of Pennsylvania without reference to conflicts of laws
principles.
3.8.2 Except as may be
required by applicable laws, rules or regulations, neither party
will originate any publicity, news release or other public announcement,
written or oral, concerning the relationship between the parties without the prior
written consent of the other party.
3.8.3 This Agreement constitutes the complete agreement between the
parties and supersedes all prior or contemporaneous agreements or representations,
written or oral, concerning the subject matter of this
Agreement.
|
