1. Non-Exclusive Representation.
Publisher hereby appoints 90 Degree Media LLC its nonexclusive representative for the sale of Advertising (defined in this section below) on the Web sites listed above (collectively, the Web Site). Pursuant to the terms of this Agreement, 90 Degree Media and its authorized representatives and licensees shall have the right to sell media space on the Web Site for the display of Advertising. Publisher agrees to cooperate with 90 Degree Media to facilitate 90 Degree Media's performance of the services described in this Agreement.
2. Definitions.
2.1 Ad Code Tag shall mean the ad code furnished by 90 Degree Media for placement on pages of the Web Site designated to display Advertisements.
2.2 Ads, Advertising and Advertisements shall each mean a promotional message that appears on the Web Site for the purpose of publicizing an Advertisers products or services.
2.3 An Advertiser shall mean an entity that provides Advertisements to 90 Degree Media to be served to the Web Site.
3. Optimizing Advertising Inventory.
3.1 Requirements. To enable 90 Degree Media to maximize the Advertising revenue for the Web Site, Publisher agrees to, at a minimum:
3.1.1 Work with 90 Degree Media to ensure the quality of inventory that is allocated for sale, which can include implementing 90 Degree Medias recommendations to add or remove Ad Code Tags and ad unit sizes, and to position all Ad Code Tags above the fold. For purposes of this agreement, above the fold shall mean that 90 Degree Media ads can be viewed by a visitor to the Web Site without the visitor having to scroll down the page.
3.1.2 Allow the Ad Code Tags on all of the Web Sites pages to display all forms of rich media.
3.1.3 To the extent technically feasible, limit the inventory supplied to 90 Degree Media hereunder to inventory with United States-based IP addresses only.
3.2 Ad Code Tagging of Web Pages. Publisher agrees to code the pages of the Web Site with the Ad Code Tags within five (5) business days of Publishers receipt of such tags. During the term of this Agreement, Publisher agrees to maintain on the Web Site all Ad Code Tags necessary for 90 Degree Media to serve Advertising. If Publisher approves any other form of Advertising that requires Publisher to add additional Ad Code Tags or make other modifications to the Web Site, or otherwise to change Publishers advertising practices, Publisher agrees to take such required actions promptly and diligently. If at any point during the Term, 90 Degree Media requests via email notification that Publisher remove any Ad Code Tag for reasons of inventory management or to minimize the generation of system defaults, Publisher agrees do so within three (3) days, and to send an email confirmation to 90 Degree Media upon such removal.
4. Publisher Ad Trafficking
4.1 Trafficking Capability. To help increase the effective CPM of Publisher inventory 90 Degree Media may provide Publisher with the ability to traffic the following categories of Ads in the Service: Publishers house ad, ads sold by Publishers sales force, and third party redirects from third parties (Publisher-Trafficked Ads). Publishers use of the Service for Publisher-Trafficked Ads is limited, and may be deactivated by 90 Degree Media at any time. Publisher shall be solely responsible for the billings and collections of all Publisher-Trafficked Ads.
4.2 Publisher Liability for Publisher-Trafficked Ads. Publisher recognizes that 90 Degree Media cannot control and is not responsible or liable for the content of Publisher-Trafficked Ads, nor for the accuracy of information entered by Publisher into the Service. Publisher shall be solely responsible for, and shall indemnify 90 Degree Media for any losses arising from, the Publisher-Trafficked Ads.
5. Rate Card and Advertisers.
5.1 Rate Card. The rate card and discounts for all Advertising sold on the Web Site by 90 Degree Media shall be set by 90 Degree Media
5.2 Review of Advertising. Publisher has the right to review all Advertisements that are eligible to be served to the Web Site, and to remove or ban those Advertisements that it finds unacceptable. Publisher agrees that 90 Degree Media has no responsibility to review the contents of any Advertising appearing on the Web Site. Subject to Publishers right to ban, review and remove Advertisements as described in this paragraph, decisions to accept Advertising and Advertisers shall be made by 90 Degree Media.
5.3 Site Removal. Advertisers may request that certain categories or types of inventory be excluded from their campaign. In the event this request applies to the Web Site, then the Web Site may be excluded from the rotation for that particular Advertiser.
6. Compensation.
6.1 Revenue Share. 90 Degree Media shall invoice and collect from Advertisers all Advertising fees (other than as provided in Section 4.2). The parties agree that in consideration for 90 Degree Medias performing its services as described in this Agreement, 90 Degree Media shall remit to Publisher sixty percent (60%) of the Net Billings generated from the sale of Advertisements on the Web Site. “Net Billings” means amounts billed to Advertisers by 90 Degree Media for the sale of Advertising on the Web Site, which amounts may have been reduced by applicable rate card and volume discounts, and agency commissions. In the event that the amount due to Publisher in any month is less than $50, 90 Degree Media shall hold payment until the total site compensation due to Publisher is more than $50. 90 Degree Media assumes no responsibility for paying income taxes on behalf of Publisher. By participating in the Service, Publisher assumes complete and sole responsibility for any taxes owed as a consequence of participation. 90 Degree Media shall provide Publisher with appropriate tax information, including earnings on Form 1099. Publisher, if U.S.-based, agrees to provide its Social Security number or Federal Employee Identification Number to 90 Degree Media for tax reporting purposes. Such information will be used for no purpose other than for tax reporting purposes. Internationally-based Publishers may be asked to complete appropriate forms for tax purposes.
6.2 Timing of Payments. 90 Degree Media shall pay Publisher its share of Net Billings within sixty (60) days following the end of the month in which Advertising is delivered to the Web Site.
6.3 Network Research. To enhance the value of Publishers inventory, Publisher agrees to allow 90 Degree Media (or a third party recommended by 90 Degree Media) to conduct and report to 90 Degree Media the results of any online research project designed to increase the value of Publishers inventory to Advertisers.
7. License.
Publisher hereby grants to 90 Degree Media a worldwide, non-exclusive, royalty-free license to use for 90 Degree Medias business purposes information gathered by 90 Degree Media in connection with its performance of services under this Agreement.
8. Publisher Representations.
Publisher warrants and represents at all times that Publisher (i) owns and/or has the right to use all materials contained on the Web Site, including, without limitation, all copyrights, trademarks and other proprietary rights in and to such materials, (ii) has secured the requisite permission to use any person’s name, voice, likeness and performance as embodied in such materials, or any other element contained in said material; and (iii) the Web Site will not infringe the proprietary right of any third party. In addition, Publisher represents and warrants at all times that Publishers Websites shall not contain, or contain links to, content promoting the use of alcohol, tobacco or any illegal substance; nudity, sex, pornography or adult-oriented content; expletives or inappropriate language; content promoting illegal activity, racism, hate, spam, mail fraud, pyramid schemes, or investment opportunities or advice not permitted under law; content that is libelous, obscene, objectionable, defamatory, contrary to public policy, or otherwise unlawful, or any other content deemed inappropriate by 90 Degree Media in its sole discretion. Publisher agrees that it shall not run robots or spiders against its Websites or use any means to artificially increase the Impressions available with respect to the Inventory.
9. Term and Termination.
The initial term of this Agreement shall begin on the Effective Date and shall terminate on the one (1) year anniversary of the Effective Date. The Effective Date shall be defined as the date when Ad Code Tags are properly implemented and Ad impressions are first served. Unless terminated by either party upon ninety (90) days notice prior to the end of the initial term or any renewal term, the Agreement shall automatically renew for successive one (1) year terms. At any time during the Term, this Agreement shall terminate (i) thirty (30) days after a partys receipt of notice that such party is in material breach of any of the terms or conditions set forth in this Agreement, unless such party cures such breach within said thirty (30) day period, (ii) immediately upon notice by a party if the other party (a) is adjudged insolvent or bankrupt, (b) institutes or has instituted against it any proceeding seeking relief, reorganization or arrangement under any laws relating to insolvency (and, in the case of any such proceeding instituted against it, the proceeding is not dismissed within sixty (60) days after filing), (c) makes any assignment for the benefit of creditors, (d) appoints a receiver, liquidator or trustee of any of its property or assets, or (e) liquidates, dissolves or winds up its business, or (iii) immediately upon 90 Degree Medias notice to Publisher of 90 Degree Medias reasonable determination that Publisher is using the services described in this Agreement in such a manner that could damage or cause injury to such services or reflect unfavorably on the reputation of 90 Degree Media. In the event of any termination of this Agreement, Publisher shall also immediately cease all use of and remove all Tags from the Web Site.
10. Mutual Warranty Disclaimer; Limitation of Liability.
90 Degree Media and Publisher make no warranties of any kind, whether express or implied, as to the subject matter of this Agreement, including any warranty of merchantability or fitness for a particular purpose. 90 Degree Media and Publisher shall not be liable for the actions or omissions of any Advertiser in connection with such Advertisers utilizing any advertising space on the Web site, nor for the content of any such Advertisers Advertisement or other advertising materials. 90 Degree Media and Publisher shall not be liable for any unavailability or inoperability of the Internet, technical malfunction, computer error, corruption or loss of information. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. IN NO EVENT WILL 90 Degree MediaS OR PUBLISHERS LIABILITY HEREUNDER EXCEED THE PAYMENTS MADE BY 90 Degree Media TO PUBLISHER HEREUNDER DURING THE PRECEDING TWELVE (12) MONTHS.
11. Indemnification.
11.1 Publisher shall indemnify, defend and hold harmless 90 Degree Media, 90 Degree Medias subsidiaries and affiliates, and the respective partners, agents, officers, directors and employees of each of the foregoing, from and against any loss, cost, expense, claim, injury or damage (including, without limitation, reasonable attorneys fees and expenses), whether incurred due to third party claims or otherwise, arising or resulting from or caused by (i) any breach or default by Publisher in the performance of any of its obligations under this Agreement; (ii) any breach of any representation, warranty, covenant or agreement by Publisher; or (iv) any transactions with Users, including without limitation any purchases by such Users of products or services sold on the Web site. Publisher agrees that its indemnity obligations to 90 Degree Media shall extend to Advertisers purchasing Advertising on the Web Site.
11.2 Subject to the provisions of Section 10 above, 90 Degree Media shall indemnify, defend and hold harmless Publisher, Publisher’s subsidiaries and affiliates, and the respective partners, agents, officers, directors and employees of each of the foregoing, from and against any loss, cost, expense, claim, injury or damage (including, without limitation, reasonable attorneys fees and expenses), whether incurred due to third party claims or otherwise, arising or resulting from or caused by (i) any breach or default by 90 Degree Media in the performance of any of its obligations under this Agreement; or (ii) any breach of any representation, warranty, covenant or agreement by 90 Degree Media.
12. Assignment.
Neither party hereto may assign this Agreement, or any of its rights and obligations hereunder, in whole or in part, without the consent of the other party, and any such attempted assignment shall be void; provided, however, that, upon written notice to the other party, a party hereto may (a) grant to a third party a security interest in this Agreement, or any of such partys rights and obligations hereunder, without the consent of the other party, or (b) assign this Agreement, or any of such partys rights and obligations hereunder, to a subsidiary or affiliated Publisher of such party without the consent of the other party or (c) assign this Agreement, or any of such partys rights and obligations hereunder, to a third party in connection with the sale of all or substantially all of the assets or capital stock of such party without the consent of the other party.
13. Notices.
Any notices or other communications required or permitted to be given or delivered under this Agreement shall be in writing (unless otherwise specifically provided herein) and shall be sufficiently given if delivered personally, with a signed receipt therefore, or by reputable overnight delivery service, or mailed by prepaid certified mail, return receipt requested, or telefaxed with written confirmation, to the address of the parties set forth on the front page of this Agreement. Notices shall be deemed to have been given on the date delivered, if delivered, or on the second business day after mailing, if mailed. Either party, upon notice to the other party given in accordance with this Section 13 may modify its address for notices set forth in this Section 13.
14. Cumulative Remedies; No Waiver.
The remedies of 90 Degree Media and Publisher provided for in this Agreement are cumulative and shall be in addition, to, and not in limitation of, the rights and remedies which may be available to 90 Degree Media and Publisher at law or in equity. Notwithstanding any course of dealing or the failure of either party strictly to enforce any term, right or condition of this Agreement, no term, right or condition hereof shall be deemed waived and no breach excused, unless such waiver and consent shall be in writing and signed by the party claimed to have waived or consented. No consent by any party to, or waiver of, a breach by the other party shall constitute a consent to, waiver of, or excuse for any other different or subsequent breach.
15. Successors and Assigns.
Subject to 12, this Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto and their respective legal representatives, and permitted successors and assigns.
16. Entire Agreement.
This Agreement, together with the exhibits attached hereto, represents the entire and integrated agreement between 90 Degree Media and Publisher and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by a written instrument signed by both 90 Degree Media and Publisher.
17. Applicable Law; Venue.
This Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota, without regard to choice of law principles. The jurisdiction and venue for all disputes hereunder shall be Minneapolis.
18. Legal Fees.
If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys fees, costs and expenses, in addition to any other relief to which such party may be entitled.
19. Severability.
If any provision of this Agreement or the application thereof to any person or situation to any extent shall be held invalid or unenforceable, the remainder of this Agreement, and the application of such provision to persons or situations other than those to which it shall have been held invalid or unenforceable, shall not be affected thereby, but shall continue to be valid and enforceable to the fullest extent permitted by law.
20. Privacy.
Publisher agrees to post on the Web Site a privacy policy, linked, at a minimum, conspicuously from the Web Sites home page, with a link that contains the word Privacy that, in addition to the disclosures about Publishers privacy practices, clearly and conspicuously discloses (a) Publishers use of a third party for its ad serving activities; (b) identifies the collection and use of information gathered in connection with both ad serving activities and delivery of Publishers content; and (c) the user’s ability to opt out from such collection and use via a live hyperlink to a 90 Degree Media-designated site. 90 Degree Media reserves the right to change its suggested disclosure language, including requiring certain disclosures as mandated by law (including industry self-regulation or practice), upon written notice to Publisher, and Publisher agrees to cooperate to post such revised disclosure within three (3) business days following receipt of such notice, or otherwise post within five (5) business days following receipt of such notice such other disclosure as may be mutually agreeable to the parties. 90 Degree Media shall have the right to terminate this Agreement on five (5) days prior written notice to Publisher if Publisher breaches this Section 20 and fails to remedy such breach within said five (5) day period.
21. Relationship.
90 Degree Media and Publisher shall each act as independent contractors. Nothing in this Agreement shall be deemed to create or construed as creating a joint venture or partnership between the parties. Except as expressly provided for in this Agreement, neither party shall have the right to bind the other contractually in any respect whatsoever.
Publisher and 90 Degree Media hereby confirm their mutual agreement to these arrangements as of the Effective Date.
