This VMOBADS Publisher Network Advertiser Agreement ("Advertiser Agreement"), shall govern the relationship between VMOBADS Publisher Network ("VMOBADS Publisher Network" or "we") and the Advertiser ("Advertiser"), whereby Advertiser may obtain access to the Publisher Network ("VMOBADS Publisher Network") of registered third party Publishers ("Publishers") and publishers ("Publishers"), and related technology and software ("VMOBADS Publisher Network Ad Server"), to market customized advertisements and links provided by Advertiser and/or VMOBADS Publisher Network ("Ads," as further defined below). The VMOBADS Publisher Network, as well as the services provided by VMOBADS Publisher Network in connection therewith ("Services"), are further described in the Insertion Order ("IO") attached hereto and incorporated herein by reference (the IO, together with this Advertiser Agreement, the "Agreement"). The terms of the IO shall supersede all contrary terms set forth in this Advertiser Agreement, unless expressly set forth to the contrary. In any instance where Advertiser is an agency entering into the Agreement on behalf of a client, any reference to "Advertiser" shall refer jointly to Advertiser as well as the applicable underlying client.
VMOBADS Publisher Network/Services
Advertiser agrees to accept and pay for, and VMOBADS Publisher Network agrees to provide, the Services identified and set forth in the Agreement. In connection with the Services, VMOBADS Publisher Network shall undertake marketing campaigns with Advertiser (each an "Ad Campaign") whereby VMOBADS Publisher Network will distribute Advertiser's proprietary advertising materials including, without limitation, banners, buttons, text-links, clicks, co-registrations, pop-ups, pop-unders, e-mail, graphic files and similar online media (collectively, "Advertiser Ads") and/or, where applicable, VMOBADS Publisher Network Ads (as defined below) through the VMOBADS Publisher Network either:
on Publisher websites via the VMOBADS Publisher Network Ad Server for impressions-based Ad Campaigns ("CPM"); or
by Publishers via e-mail based marketing, search engine marketing, website based marketing and/or other online marketing means. In connection with such Ad Campaigns, Advertiser shall pay VMOBADS Publisher Network commissions depending on the number of valid clicks, impressions, sales/actions ("CPA"), applications and leads ("Leads"), and/or such other compensable activities generated on behalf of Advertiser as set forth in the subject IO (collectively, "Actions"). The applicable Actions, the fees due to VMOBADS Publisher Network for each Action and other applicable terms and conditions of the Ad Campaigns entered into hereunder shall be specified in each IO. VMOBADS Publisher Network shall not be held liable or responsible for any actions or inactions of its Publishers or Publishers.
Upon the execution of the Agreement, Advertiser must register on the VMOBADS Publisher Network website and create a unique, password-protected account ("Account"). Advertiser will be responsible for safeguarding and maintaining the confidentiality of its Account and associated password. Advertiser shall remain fully and solely responsibility for any and all actions taken under Advertiser's Account, whether authorized by Advertiser or not. Advertiser must immediately notify VMOBADS Publisher Network of any unauthorized use of Advertiser's Account. Advertiser is responsible for keeping its Account information current, complete and accurate, and Advertiser acknowledges and agrees that VMOBADS Publisher Network will have no responsibility or liability, directly or indirectly, for failure to deliver notices as a result of inaccurate Account information.
Advertiser shall develop all aspects of the Advertiser Ads, other than where the parties agree that VMOBADS Publisher Network shall assist in the development of Ads. The parties understand and agree that Advertiser is the sole owner of any and all intellectual property rights associated with any Advertiser Ads; other than those portions that VMOBADS Publisher Network prepares on Advertiser's behalf (such portions hereinafter referred to as, the "VMOBADS Publisher Network Ads" and together with the Advertiser Ads, the "Ads"). The parties understand and agree that VMOBADS Publisher Network is the sole owner of any and all intellectual property rights associated with the VMOBADS Publisher Network Ads, other than Advertiser's trademarks, logos, copyrights and other pre-existing Advertiser intellectual property incorporated in the VMOBADS Publisher Network Ads. Under no circumstances shall VMOBADS Publisher Network be authorized to use the Ads other than in connection with Advertiser's Ad Campaigns as set forth in the IO(s). Advertiser shall submit all Advertiser Ads to VMOBADS Publisher Network for approval prior to the commencement of the subject Ad Campaign set forth in the applicable IO. Advertiser shall not alter, modify or otherwise change the Ads, or any other Ads-related feature, in any manner whatsoever, without obtaining VMOBADS Publisher Network's prior express written consent, after the applicable Ad has been approved by VMOBADS Publisher Network. Notwithstanding the foregoing, VMOBADS Publisher Network shall have sole discretion with respect to the creation of the "subject" and "from" lines used in its e-mailing of any Ads. VMOBADS Publisher Network reserves the right, in its sole discretion and without liability, to: change any of its Ad Guidelines at any time; and to reject, omit, exclude or terminate any Ad for any reason at any time, with subsequent notice to the Advertiser, whether or not such Ad was previously acknowledged, accepted or published by VMOBADS Publisher Network. Such reasons for rejection, omission or exclusion of Ads include, but are not limited to, where VMOBADS Publisher Network deems, in its sole discretion, that the Ads, including the applicable products and/or services promoted by such Ads ("Advertiser Products"), and any website linked to from such Ads, are in violation of any applicable law, rule, regulation or other judicial or administrative order or where the content thereof may tend to bring disparagement, ridicule or scorn upon VMOBADS Publisher Network or any of its Publishers and/or Publishers. Advertiser reserves the right to reject, omit, exclude, terminate or request a change to the Ads at any time and VMOBADS Publisher Network shall, subject to the provisions set forth herein, comply with such request as soon as practical but in no event later than three (3) business days after its receipt thereof. Advertiser may cancel or suspend a CPM-based Ad Campaign, or an Ad associated with such a CPM-based Ad Campaign, effective within approximately twenty-four (24) business hours of VMOBADS Publisher Network's receipt of Advertiser's cancellation notice, which Advertiser can deliver by logging into its Account and following the instructions on the applicable menu.
The positioning, placement, frequency and other editorial decisions related to Ads shall be made by VMOBADS Publisher Network and/or its Publishers and Publishers, as applicable, in their respective sole discretion. The applicable IO may set forth the particular place(s) where Ads may appear and/or be distributed. Advertiser agrees that in a case where no points of placement or distributions are set forth in the applicable IO or, in cases where "Run of Publisher Network" or similar designation is specified in the applicable IO, the Ads may appear at any point of placement and/or distribution that VMOBADS Publisher Network and/or its Publishers and Publishers may determine, in their respective sole discretion.
Unless otherwise stated in writing by VMOBADS Publisher Network, each Ad used by VMOBADS Publisher Network in connection with an Ad Campaign must include, in unaltered form, the special transaction tracking computer code provided by VMOBADS Publisher Network ("Ad Codes"). Advertiser will not knowingly modify, circumvent, impair, disable or otherwise interfere with any Ad Codes and/or other technology and/or methodology required or made available by VMOBADS Publisher Network to be used in connection with any and all Ads. In connection with CPA-based Ad Campaigns, Advertiser agrees to pay VMOBADS Publisher Network a default payment of Fifty Cents ($0.50) CPM on a net thirty (30) day basis in instances where conversion data cannot be supplied due to a failure of the Ad Codes and Advertiser's inability to provide such information, in the alternative. All determinations made by VMOBADS Publisher Network in connection with the Ads, Actions and any associated fees invoiced to Advertiser shall be final and binding on Advertiser. Notwithstanding the foregoing, VMOBADS Publisher Network's Services do not involve investigating or resolving any claim or dispute involving Advertiser and any Publisher, Publisher or other third party.
The following terms apply to all Ad Campaigns transmitted via e-mail by VMOBADS Publisher Network's Publishers on behalf of Advertiser. Any and all e-mail based Ads:
shall comply with all applicable federal and state laws including, but not limited to, the CAN-SPAM Act of 2003 ("CAN-SPAM") and any and all Federal Trade Commission implementing regulations;
must not infringe, misappropriate or otherwise violate any copyright, patent, trademark, trade secret or other similar intellectual property right, or otherwise violate or breach any duty toward, or rights of, any person or entity including, without limitation, rights of privacy and publicity; and
must not result in any consumer fraud, product liability or breach of contract to which Advertiser is a party or cause injury to any third party. Advertiser shall cause a valid physical postal address for Advertiser to appear in each e-mail Ad, along with a functioning unsubscribe link (such unsubscribe link must remain active for at least thirty (30) days after e-mail delivery). VMOBADS Publisher Network may make available, at a VMOBADS Publisher Network-designated FTP site ("FTP Site"), a suppression list (and associated login information), updated on a regular basis, generated from e-mail Ad Campaigns transmitted by VMOBADS Publisher Network's Publishers for Advertiser under applicable IO(s). Advertiser shall upload its own list of suppressed e-mail addresses to the FTP Site, if one is provided by VMOBADS Publisher Network, or send its suppressed e-mail addresses to VMOBADS Publisher Network via e-mail no less than daily. If no such suppressed e-mail addresses are supplied by Advertiser, then VMOBADS Publisher Network may conclude that no such addresses exist. The suppression list and login provided by VMOBADS Publisher Network are deemed to be Confidential Information of VMOBADS Publisher Network, as defined herein-below. Suppression lists may not be used by Advertiser for any purpose other than to comply with applicable laws regulating e-mail transmissions. Advertiser agrees to process any unsubscribe requests within seven (7) days of being posted at the FTP Site.
The rates for Actions shall be set forth in the applicable IO(s). VMOBADS Publisher Network will invoice Advertiser twice monthly. Unless otherwise set forth in the applicable IO, payment will be due to VMOBADS Publisher Network within thirty (30) days of the date appearing on each invoice. If payment is not made in a timely manner, VMOBADS Publisher Network may, at its option, immediately terminate the Agreement and/or any applicable IO(s). Interest will accrue on any past due amounts at the rate equal to the lesser of one and one half percent (1.5 per month or the maximum amount permitted by law. In addition, Advertiser shall be liable to VMOBADS Publisher Network for all attorneys' fees and other costs of collection incurred in collecting such unpaid amounts. Advertiser agrees and acknowledges that it shall be fully responsible for any and all taxes, whether state or local, and related fees, costs and penalties incurred by VMOBADS Publisher Network and/or any of its Publishers.
In connection with Leads and CPA-based Ad Campaigns, Advertiser will pay VMOBADS Publisher Network for all Actions generated; provided, however, that Advertiser shall have no obligation to pay for any Lead/CPA-based Action that:
it rejects within five (5) days of its receipt thereof; and
both parties determine is not a Valid Action (as defined below). Where VMOBADS Publisher Network determines that such Action is a Valid Action, Advertiser must pay for same. A "Valid Action" means an individual person that:
is not a computer generated user, such as a robot, spider, computer script or other automated, artificial or fraudulent method designed to appear like an individual, real live person;
in the case of CPA-based Campaign, is a valid sale that is not fraudulent, cancelled, charged back or otherwise nullified; and
in the case of Leads-based Campaigns, has submitted information that meets all of Advertiser's criteria as set forth in the applicable IO. The data associated with any and all Lead/CPA-based Actions ("Action Data") that are not both accepted and paid for by Advertiser shall be deemed the Confidential Information of VMOBADS Publisher Network, subject to any and all restrictions set forth herein ("Unaccepted Action Data"). Upon Advertiser's acceptance of a Lead/CPA-based Action (and payment to VMOBADS Publisher Network therefore in accordance with payment terms set forth herein and in the applicable IO), VMOBADS Publisher Network shall grant to Advertiser joint ownership and the full right to use such Action Data. Where Advertiser does not accept Leads/CPA-based Actions, where Advertiser fails to make payments for same in accordance with the payment terms herein and in the applicable IO and/or where such Leads/CPA-based Actions are later determined not to be Valid Actions, Advertiser shall have no rights in and to such Action Data, and such Action Data shall be considered and treated as Unaccepted Action Data. Without limiting the generality of the confidentiality obligations set forth herein, Advertiser agrees that it:
will not transfer, export, display, forward or otherwise share information contained in the Unaccepted Action Data to/with any third party;
will not use the information contained in the Unaccepted Action Data on its own behalf in any manner not expressly authorized by VMOBADS Publisher Network;
will not use the information contained in the Unaccepted Action Data to create any interactive on-line, CD-ROM or other derivative product;
will not publicly display the information contained in the Unaccepted Action Data on the Internet; and
will notify VMOBADS Publisher Network as soon as it learns of any actual or suspected unauthorized use of or access to the information contained in the Unaccepted Action Data and provide reasonable assistance to VMOBADS Publisher Network in the investigation and prosecution of any such unauthorized use or disclosure.
The Agreement shall continue for the term set forth in any underlying IO, provided that either party may terminate the Agreement and/or any IO at any time, upon five (5) business days' prior written notice. Upon termination or expiration of the Agreement for any reason:
Advertiser will pay VMOBADS Publisher Network all amounts then due and owing as of the termination date within thirty (30) days as set forth in Section 7 herein-above;
any and all licenses and rights granted to either party in connection with the Agreement shall immediately cease and terminate; and
any and all Confidential Information or proprietary information of either party that is in the other party's possession or control must be immediately returned or destroyed. Notwithstanding any termination of the Agreement, any provisions of the Agreement that may reasonably be expected to survive termination of the Agreement, shall survive and remain in effect in accordance with their terms.
Warranty/Limitation of Liability
The VMOBADS Publisher Network, Services, VMOBADS Publisher Network ADS, AD guidelines, actions and AD Codes provided by VMOBADS Publisher Network under the agreement and/or any applicable IO are supplied on an "AS IS" and "AS AVAILABLE" basis. To the fullest extent of the law, VMOBADS Publisher Network makes no warranties (including implied warranties of purpose and non-infringement), guarantees, representations, express, implied, oral or otherwise. Without limiting the generality of the foregoing, VMOBADS Publisher Network does not warrant or guaranty actions, conversation rates and/or response rates. The VMOBADS Publisher Network, Services, VMOBADS Publisher Network ADS, AD guidelines, actions and/or AD Codes may contain bugs, errors, problems or other limitations. VMOBADS Publisher Network has no liability, whatsoever, to advertiser or any third party, for any other party's security methods and privacy protection procedures and VMOBADS Publisher Network disclaims any and all warranties, express and implied, that any other party's security methods and privacy protection procedures will be uninterrupted or error-free. VMOBADS Publisher Network has no liability for advertiser's use of, or inability to use, the AD guidelines or applicable actions and VMOBADS Publisher Network disclaims any and all warranties, express and/or implied, that advertiser's use of VMOBADS Publisher Network, Services, VMOBADS Publisher Network ADS, AD guideline and/or actions will be uninterrupted or error-free. VMOBADS Publisher Network makes no guarantees, and accepts no resulting liability, for failure to meet scheduled delivery dates. In no event shall VMOBADS Publisher Network be responsible for any consequential, special, punitive or other indirect damages including, without limitation, lost revenue or profits, even if VMOBADS Publisher Network has been advised of the possibility of such damages. VMOBADS Publisher Network will not be liable, or considered in breach of the agreement, on account of a delay or failure to perform under the agreement and/or any IO as a result of causes or conditions that are beyond VMOBADS Publisher Network'S control. notwithstanding anything contained herein to the contrary, VMOBADS Publisher Network's liability under any cause or action shall be limited to the amounts paid to VMOBADS Publisher Network by advertiser during the prior six (6) month period pursuant to the agreement. VMOBADS Publisher Network shall not be held liable or responsible for any actions or inactions of publishers and/or Publishers.
Representation and Warranties
Advertiser represents and warrants that:
it has the power and authority to enter into and perform its obligations under the Agreement;
at all times, the Ads (and their transmission), the Advertiser Products, any Advertiser website linked to from the Ads and Advertiser itself will comply with all applicable foreign, federal, state or local laws, rules, regulations and ordinances including, without limitation, the Gramm-Leach Bliley Act, the Fair Credit Reporting Act, the Federal Trade Commission Act, CAN-SPAM, the Telephone Consumer Protection Act, the Fair Debt Collection Practices Act, the Federal Communications Act, and all rules and regulations promulgated under any of the foregoing, as well as all applicable state laws including, without limitation, the California Financial Privacy Act and the Vermont Consumer Protection Act, and all rules and regulations promulgated under such state laws (collectively, "Laws");
it owns and/or has any and all rights to permit the use of the Advertiser Ads and, where approved, VMOBADS Publisher Network Ads, by VMOBADS Publisher Network, its Publishers and Publishers, as contemplated by the Agreement;
at all times, the Ads (and their transmission), the Advertiser Products, any Advertiser website linked to from the Ads and Advertiser itself will not violate any applicable rights of any third party including, but not limited to, infringement or misappropriation of any copyright, patent, trademark, trade secret or other proprietary, property or other intellectual property right;
it will not disable "back" browser functionality to prohibit end-users from returning to the website from which the Ad was selected, if applicable;
Advertiser has a reasonable basis for any and all claims made within the Ads and possesses appropriate documentation to substantiate such claims;
Advertiser shall fulfil all commitments made in the Ads;
no Ad is targeted to end-users under the age of eighteen (18);
the Ads, Advertiser Products, any Advertiser website linked to from the Ads do not:
contain any misrepresentations or content that is defamatory;
contain content that is violent, obscene, offensive, including content that contains nudity or implied nudity or content that is morally or ethically offensive or sexually suggestive;
promote or support gambling or sweepstakes or contests; or
contain any "worm," "virus" or other device that could impair or injure any person or entity;
Advertiser is not, nor is Advertiser acting on behalf of any person or entity that is, prohibited from engaging in transactions with U.S. citizens, nationals or entities under applicable U.S. law and regulation including, but not limited to, regulations issued by the U.S. Office of Foreign Assets Control ("OFAC"); and (m) Advertiser is not, nor is Advertiser acting on behalf of any person or entity that is, a Specially Designated National ("SDN"), as OFAC may so designate from time to time.
Advertiser shall irrevocably defend, indemnify and hold VMOBADS Publisher Network, its Publishers, Publishers and each of their respective employees, officers, directors, members, managers, shareholders, contractors and agents harmless from and against any and all liability, loss, damage or expense (including, without limitation, reasonable attorneys' fees, costs and expenses) arising out of or related to any allegation, claim or cause of action, involving:
Advertiser's breach of the Agreement, any and all applicable IO(s) or any representation or warranty contained therein;
the Ads, Advertiser Products and/or Advertiser websites; and/or
any claim that VMOBADS Publisher Network is obligated to pay any taxes in connection with Advertiser's participation hereunder.
For purposes of the Agreement, "Confidential Information" shall mean all data and information, of a confidential nature or otherwise, disclosed during the term of the Agreement by one party ("Disclosing Party") to the other party ("Receiving Party"), as well as information that the Receiving Party knows or should know that the Disclosing Party regards as confidential including, but not limited to:
a party's business plans, strategies, know how, marketing plans, suppliers, sources of materials, finances, business relationships, personally identifiable end-user information, pricing, technology, employees, trade secrets and other non-public or proprietary information whether written, oral, recorded on tapes or in any other media or format;
the material terms of the Agreement and/or any associated IO(s);
with respect to VMOBADS Publisher Network, the Unaccepted Action Data and suppression lists; and
any information marked or designated by the Disclosing Party as confidential. The Receiving Party agrees to hold all Confidential Information in trust and confidence and, except as may be authorized by the Disclosing Party in writing, shall not use such Confidential Information for any purpose other than as expressly set forth in the Agreement or disclose any Confidential Information to any person, company or entity, except to those of its employees and professional advisers:
who need to know such information in order for the Receiving Party to perform its obligations hereunder; and
who have entered into a confidentiality agreement with the Receiving Party with terms at least as restrictive as those set forth herein. Confidential information shall not include any information that the Receiving Party can verify with substantial proof that:
is generally available to or known to the public through no wrongful act of the receiving party;
was independently developed by the Receiving Party without the use of Confidential Information; or
was disclosed to the Receiving Party by a third party legally in possession of such Confidential Information and under no obligation of confidentiality to the Disclosing Party. The Receiving Party agrees that monetary damages for breach of confidentiality may not be adequate and that the disclosing party shall be further entitled to injunctive relief, without the requirement to post bond.
Advertiser recognizes that VMOBADS Publisher Network has proprietary relationships with its Publishers and Publishers. Advertiser agrees not to circumvent VMOBADS Publisher Network's relationship with such Publishers and Publishers, or to otherwise solicit, purchase, contract for or obtain services similar to the Services performed by VMOBADS Publisher Network hereunder from any Publisher and/or Publisher that is known, or should reasonably be known, by Advertiser to have such a relationship with VMOBADS Publisher Network, during the term of the Agreement and for six (6) months following termination or expiration of the Agreement. Notwithstanding the foregoing, to the extent that Advertiser can show that any such Publishers and Publishers already provided such services to Advertiser prior to the date of the first IO executed by the parties, then Advertiser shall not be prohibited from continuing such relationship. Advertiser agrees that monetary damages for its breach, or threatened breach, of this Section 14 will not be adequate and that VMOBADS Publisher Network shall be entitled to:
injunctive relief (including temporary and preliminary relief) without the requirement to post a bond;.
liquidated damages from Advertiser in the amount equal to one hundred percent (100%) of the fees paid by Advertiser to the subject Publisher and/or Publisher, as applicable, for the prior twelve (12) month period; and
any and all other remedies available to VMOBADS Publisher Network at law or in equity.
Other than with respect to payment obligations arising hereunder, neither party will be liable, or be considered to be in breach of this Agreement, on account of such party's delay or failure to perform as required under the terms of this Agreement as a result of any causes or conditions that are beyond such party's reasonable control and that such party is unable to overcome through the exercise of commercially reasonable diligence (a "Force Majeure Event"). If any such Force Majeure Event occurs including, without limitation, acts of God, fires, explosions, telecommunications, Internet or Publisher Network failure, results of vandalism or computer hacking, storm or other natural occurrences, national emergencies, acts of terrorism, insurrections, riots, wars, strikes or other labour difficulties, or any act or omission of any other person or entity, the affected party will give the other party notice and will use commercially reasonable efforts to minimize the impact of any such event.
Assignment. Neither party may assign, transfer or delegate any of its rights or obligations under the Agreement or any IO without the prior written consent of the other party, and any attempts to do so shall be null and void; provided, however, that either party may assign the Agreement, any IO or any portion hereof/thereof, to:
an acquirer of all or substantially all of such party's equity, business or assets;
a successor in interest whether by merger, reorganization or otherwise; or
any entity controlling or under common control with such party.
Choice of Law/Venue. The Agreement shall be construed in accordance with and governed by the laws of the State of New York. In the event that any suit, action or other legal proceeding shall be instituted against either party in connection with the Agreement, each hereby submits to the jurisdiction of either the United States District Court for the Southern District of New York or any New York State court of competent jurisdiction, located in New York County, and further agrees to comply with all the requirements necessary to give such court jurisdiction.
Modification. The Agreement, any exhibits attached hereto and any and all applicable IO(s) represent the complete and entire expression of the agreement between the parties, and shall supersede any and all other agreements, whether written or oral, between the parties. The Agreement, any exhibits attached hereto and any and all applicable IO(s) may be amended only by a written agreement executed by an authorized representative of each party. To the extent that anything in or associated with any IO is in conflict or inconsistent with the Agreement, the IO shall take precedence.
Non-Waiver/Severability. No waiver of any breach of any provision of the Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. If any provision contained in the 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 real intention of the parties, and the remaining provisions of the Agreement will remain in full force and effect.
Relationship of the Parties. The parties hereto are independent contractors. There is no relationship of partnership, agency, employment, franchise or joint venture between the parties. Neither party has the authority to bind the other, or incur any obligation on its behalf; provided, however, that VMOBADS Publisher Network acts as a limited agent of Advertiser for the sole purpose of performing the Services set forth in applicable IO(s).
IN WITNESS WHEREOF, VMOBADS Publisher Network and Advertiser have caused this Advertiser Agreement to be executed by their duly authorized representatives.