VERTMARKETS, 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, VertMarkets 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, VertMarkets 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, VertMarkets 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 VertMarkets 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. VertMarkets 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, VertMarkets 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 VertMarkets' entire liability, VertMarkets will provide make-good Impressions through substantially similar ad placements. VertMarkets may alter an Advertising Product Start Date, End Date, or term as reasonably required by trafficking or other operational requirements. In such event, VertMarkets will provide to Company commercially reasonable substitute dates.
SECTION THREE - TERMS AND CONDITIONS
3.1 PAYMENT
3.1.1 Company shall pay VertMarkets 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 VertMarkets 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 VertMarkets and its licensors retain all their respective rights in the Software.
3.3.2. VertMarkets acknowledges and agrees that all rights in the Content not expressly granted to VertMarkets hereunder are and shall continue to be the sole and exclusive property of Company or its third-party licensors.
3.3.3. VertMarkets retains sole right and control over the programming and content of VertMarkets Marketplaces. If VertMarkets redesigns the user interface of any VertMarkets Marketplace, VertMarkets will display the VertMarkets Products/Services in a comparable place and format.
3.3.4. During the term of this Agreement, Company grants to VertMarkets a non-exclusive, royalty-free, worldwide right and license to use, reproduce, display, and transmit the Content solely on or in conjunction with the VertMarkets Products/Services, and on any applicable Syndicate Marketplace, in accordance with the terms of this Agreement.
3.3.5. During the course of your contract with VertMarkets you will receive the contact information of VertMarkets’ users that have accessed your content. Company agrees to (a) Company may use this information to contact the user via common methods of communication; and (b) prohibit disclosure of the information to any third party other than agents of the Company for the permitted marketing purposes set forth above; and (c) use of this contact information and adherence to the laws of any/all countries is the responsibility of the Company.
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, including copyright to all Content, or a valid license to use all Content without infringing on the rights of a third party, 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; (vii) violate any Vert Markets generally applicable advertising standards and practices, as such may be modified from time to time; or (viii) infringe any copyright owned by a third party.
3.4.3 Exclusive Remedies. For any breach by VertMarkets of its warranties under this Agreement, Company's exclusive remedy and VertMarkets' 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. VERTMARKETS DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. VERTMARKETS 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, patent, or trademark.
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 that a third party alleges to contain any material that (a) is false, misleading, libelous or defamatory, (b) is obscene, pornographic or harmful to minors, or (c) infringes a copyright, trademark, or patent owned or asserted by a third party, or (d) constitutes 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 VERTMARKETS PRODUCTS/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.
SECTION FOUR - DEFINITIONS
Advertising Product means sponsorship or banner advertisements, electronic newsletters, storefronts and any other promotional items displayed on a VertMarkets Marketplace.
Content means all text, pictures, sound, graphics, video and other data, information and materials provided by Company for use in conjunction with the VertMarkets Products.
Hosted Software means the software programs and any Updates therefore in object code format resident and hosted on VertMarkets' equipment and made available to Company.
Impression means either: a single ad view with respect to banner ads; or a single subscriber with respect to Newsletter ads.
Link means a bar, button, tout, listing or gateway that connects from one page of a website to another page and from one website to another website.
Launch Date means the date a VertMarkets Product/Service set forth in the Order Details is first generally available for display on a Marketplace.
Marketplace means a VertMarkets Marketplace, Company's website, or any other website owned and/or operated by a third party.
Newsletter means a periodic e-mail sent to newsletter subscribers of one or more VertMarkets Marketplaces and to VertMarkets clients, which e-mail contains a Link.
Order Details means the specific Company information and the list of VertMarkets Products/Services ordered by Company, the corresponding Fees and other pertinent details set forth in this Agreement.
VertMarkets Product/Service means a product or service purchased or obtained by Company as set forth in the Order Details.
Web Presence means the web pages located at the Marketplaces set forth in the Order Details and created by use of the Software and incorporation of the Content.
ADVERTISING PRODUCTS SPECIFICATIONS AND DESCRIPTIONS. Content submissions by the Company shall conform with VertMarkets’ Content Submission Specifications. Ad sizes are stated in pixels and are industry standard as set by the Internet Advertising Bureau.
Banner Advertising Products:
Banner Ad-Full Banner: Two 468x60 Full Banners: one at the top of the page and the other a mirror image that is placed at the bottom of the page. These two identical banners count as one impression.
Banner Ad-Skyscraper: One 120x600 Skyscraper that will be on the right side of those selected pages where the UI is flexible enough to allow it to fit.
Banner Ad-Left Side Banner: A 120x240 Banner that is essentially a "short skyscraper" which will be placed on the left side of the page, below the fold, just beneath the navigation area.
Banner Ad-Tile Banner: A 120x60 Banner which will be placed on the left side of the page, below the fold, just beneath the navigation area
Newsletter Advertising Products:
Descriptions: Newsletter ads are of the following types: (a) multiple advertisers per Newsletter, with a maximum of three (3) ads per Newsletter; (b) "Exclusive Sponsorship", in which the Company purchases all three Newsletter ad spaces described below in the section entitled "Formats"; except for Featured Company placement ads, no other ads will be sold for that Newsletter; and (c) "Featured Company" placement. Featured Company placement is available only to VertMarkets supplier customers having a Web Presence, E-Commerce Center, or Storefront on a VertMarkets Marketplace or having obtained a Marketplace Manager or other Software license from VertMarkets.
Formats: All Newsletters will be sent out in two formats: text and HTML.