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VERT MARKETS,
INC.GENERAL TERMS AND
CONDITIONS (AUGUST 2009 V.1)
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
3.1.1
Company shall pay Vert Markets the fees in accordance with the payment
terms in the applicable Order Details.
3.1.2
Credits apply toward future advertisements.
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.
3.2.1
Short-Rate Policy: A Short-Rate is the amount of money a company owes
to settle its 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.
3.2.2
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. Uncollected or unpaid value exchanges,
received as part of the original contract, are also included in a
company's short-rate.
3.2.3
Any cancellation of the ad contract will result in a short-rate being
applied to not only the contract, but to any merchandising credits that
were used and may not have been earned because of the cancellation (if
applicable).
3.2.4
Notice of cancellation must be in writing and received by one week
prior to the ad sales deadline.
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
3.4.1Company 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.
3.4.2 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.
3.4.3 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.
3.4.4 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.
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