WEB ADVERTISING SERVICE AGREEMENT
This Web Advertising Service Agreement (the "Agreement') is a legal agreement between you ("Publisher") and Vibrant Media, Inc. ("Vibrant"). YOU MUST READ AND AGREE TO THE TERMS OF THIS AGREEMENT BEFORE YOU CAN IMPLEMENT AND BEGIN USING THE SERVICE. BY SUBMITTING YOUR APPLICATION TO VIBRANT, YOU ARE AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE AGREEING ON BEHALF OF ANOTHER PARTY, YOU REPRESENT THAT YOU HAVE AUTHORITY TO DO SO.
1. DEFINITIONS
1.1 In this Agreement the following words and phrases shall, unless the context otherwise requires, have the following meanings:-
"Ad Tags" means HTML to be placed on the Publisher Sites in order to call relevant code to display the Services and record delivery of Advertisements for reporting and billing purposes.
"Advertisement" means any advertising provided or displayed as part of the Services.
"Advertiser" means a third party, who has purchased services from Vibrant under an insertion order relating to the display of Advertisements and, where the Advertiser is an agency, shall include relevant brand owners/advertisers.
"Agreement" means the Publisher Order Form and its Schedules including these General Terms and Conditions as the same may be amended in accordance with its provisions from time to time.
"Applicable Laws" means all laws that are applicable to this Agreement or the activities detailed under it as the same may be amended and in force from time to time.
"Confidential Information" means any information disclosed by one party to the other under or in connection with this Agreement which ought reasonably be considered to be confidential or proprietary given the nature of the information and the circumstances of the disclosure. Vibrant's Confidential Information includes, without limitation, this Agreement, the Services and all Software (whether in source code or executable form), documentation, financial information, performance information, pricing information, business plans, methods, processes, inventions, techniques, designs or other technical information relating thereto, as well as any performance tests of the Services or Software. Confidential Information does not include information that: (a) is or becomes generally known to the public through no fault of or breach of this Agreement by the receiving party; (b) is rightfully known by the receiving party at the time of disclosure without an obligation of confidentiality; (c) is independently developed by the receiving party without use of the disclosing party's Confidential Information; or (d) the receiving party rightfully obtains from a third party without restriction on use or disclosure.
"Content Products" shall have the meaning set out in the Publisher Order Form.
"CPM Page View" means a view of a web page on a Publisher Site where such page contains at least one Vibrant In-Text Link as reported on the Vibrant Publisher Dashboard.
"CPM Revenue" means the amount payable by Vibrant to the Publisher as set out in Schedule D for every 1,000 impressions delivered on the Publisher Site(s) for Advertisements displayed as a result of use of the Display Products under this Agreement, solely as those impressions are recorded by Vibrant (and made available in the Vibrant Publisher Dashboard).
"Data Protection Legislation" means the Data Protection Act 1998, the Data Protection Directive (95/46/EC), the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003/2426) and all applicable laws and regulations relating to the processing of personal data and privacy, including, where applicable, the guidance and codes of practice issued by the Information Commissioner, any successor regulator and/or any other body with direct regulatory authority in relation to the protection of data [in the UK].
"Display Products" shall have the meaning set out in the Publisher Order Form.
"Gross Revenue" means the total revenue received by Vibrant resulting from use of the Services (excluding Display Products) on the Publisher Site(s).
"Intellectual Property Rights" means any intellectual property right, including without limitation copyright, rights in goodwill or to sue for passing off, design right, registered design right, service mark, trade, business and domain names, rights in trade dress or get up, patent, performers property right, trade mark and database right or any similar rights exercisable in any part of the world, including any application for, registration of and renewals or extensions of any patent, trade mark, registered design or similar registerable rights in any part of the world.
"Net Revenue" shall have the meaning set out at clause 4.1.
"Page Hit" means a webpage on the Publisher Site that Vibrant are given access to and which contains an Ad Tag as reported on the Vibrant Publisher Dashboard.
"Page View" means a view of a content webpage on a Publisher Site that has not been blocked either by the Publisher and/or by Vibrant including for reasons such as negative content, insufficient text content, user's browser not being supported etc and containing an Ad Tag related to Content Products as reported on the Vibrant Publisher Dashboard.
"Publisher Guidelines" means such guidelines as Vibrant may determine in its absolute discretion governing the use of the Services as notified to the Publisher from time to time. As at the Effective Date, these guidelines can be found at http://www.vibrantmedia.co.uk/publishers/implementation.asp.
"Publisher Order Form" means the Publisher Order Form entered into by the parties and which incorporates these General Terms and Conditions by reference.
"Publisher Site Access" means the supply of such access to Publisher Site(s) and related systems by the Publisher to Vibrant as Vibrant may reasonably require in order to allow Vibrant to provide the Publisher with services relating to Content Products.
"Publisher Site(s)" means the website(s) owned, operated, represented or controlled by the Publisher approved in accordance with section 3 of the Publisher Order Form.
"Services" means the services to be provided by Vibrant as specified in section 2 of the Publisher Order Form.
"Software" means the lines of executable code including Ad-Tags that are part of the Services.
"Term" means the term of this Agreement as set out in clause 9.1.
"Vibrant Image" means the Vibrant ad solution that allows images on the Publisher Sites to deliver contextually relevant Advertisements and other related information.
"Vibrant Interest Ads" means the Vibrant product that displays contextually relevant advertisements around the content of the page on a Publisher Site.
"Vibrant In-Text" means the Vibrant product which delivers an article-based in-text link, which link: (a) is activated by the placement of Software at the bottom of each page of certain areas of Publisher Site(s) containing editorial content; (b) locates and underlines keywords and phrases within editorial content; and (c) when the underlined keywords and phrases are (i) clicked on, will carry potential customers to the websites of the Advertisers who purchased those keywords and phrases (or on whose behalf they were purchased (eg by an agency)) or (ii) moused over, but not clicked on, will present an ad-view box to the reader.
"Vibrant In-Text Link" means a link generated by use of Vibrant In-Text.
"Vibrant Publisher Dashboard" means a reporting interface provided by Vibrant that allows a Publisher to view an estimate of amounts due to it and such other information relating to the Services as Vibrant may provide at its sole discretion including Page Views, Page Hits and/or CPM Page Views.
"Vibrant Related Content" means the Vibrant product which allows users to navigate throughout Publisher Sites, portals and networks, enabling users to conveniently discover more editorial information from relevant words within website content.
"Vibrant Toolbar" means the Vibrant product intended to be displayed at the bottom of Publisher Site(s) in a "toolbar" form which toolbar may contain search, social networking and advertising elements.
"Working Day" means any week day from Monday to Friday but excluding bank holidays and public holidays in England.
1.2 The headings in this Agreement do not affect its interpretation. Save where the context otherwise requires, reference to clauses and Schedules are to clauses and Schedules of this Agreement.
1.3 Where the words "include(s)", "including" or "in particular" are used in this Agreement, they are deemed to have the words "without limitation" following them and where the context permits, the words "other" and "otherwise" are illustrative and shall not limit the sense of the words preceding them.
1.4 Any obligation in this Agreement on a person not to do something includes an obligation not to agree, permit, allow or acquiesce in that thing being done.
1.5 A reference to a statutory provision is a reference to that statutory provision as amended, extended or re-enacted and includes any subordinate legislation for the time being in force made under it.
1.6 References to the singular includes the plural and vice versa and references to any gender includes all genders.
1.7 Conflicts: In the event of a conflict between these General Terms and Conditions, the remaining Schedules and the Publisher Order Form, the following order of precedence shall apply: Publisher Order Form, General Terms and Conditions and then the remaining Schedules.
1.8 Changes to the General Terms and Conditions:Vibrant may make changes to these General Terms and Conditions from time to time. When these changes are made, Vibrant will notify the Publisher of such changes by making the new version of the General Terms and Conditions available at: http://www.vibrantmedia.co.uk/publishers/vibrantterms.asp. Publisher understands and agrees that it shall be responsible for checking the General Terms and Conditions on a regular basis and if Publisher uses or enjoys the benefits of the Services at any time seven (7) or more days after the date on which Vibrant has made new terms available to the Publisher, such use or enjoyment of the Services and/or the benefits of the Services shall be deemed acceptance of the updated General Terms and Conditions. If the Publisher does not agree to such new terms, it must notify Vibrant immediately in writing. In the event the Publisher and Vibrant are unable to agree on the content of the new General Terms and Conditions, and on request by Vibrant, the Publisher shall remove all Ad Tags from all Publisher Sites within seven (7) days of receiving such request and this Agreement shall automatically terminate.
2. SOFTWARE AND SERVICE(S)
2.1 Licence Grant: Subject to the terms and conditions of this Agreement, Vibrant hereby grants to the Publisher a non-exclusive, non-transferable, non-sublicensable licence to use the Software to facilitate the access to and serving of the Services, in accordance with instructions provided to the Publisher by Vibrant.
2.2 Reservation of Rights: Vibrant reserves all rights in the Software and Services not expressly granted in this Agreement including that Vibrant and its licensors retain all right, title and interest in and to the Services, the Software and the Advertisements, and all elements of each of those (including for the avoidance of doubt the Ad Tags) and all Intellectual Property Rights therein.
2.3 Provision of Services: Vibrant will provide the Services to the Publisher on the Publisher Sites. Vibrant shall have no obligation to implement the Services for any Publisher websites not submitted by the Publisher to Vibrant and approved by Vibrant in accordance with the Publisher Order Form. Publisher will not place an Ad Tag or use the Services on any website other than a Publisher Site.
2.4 Removal of Publisher Sites: Vibrant reserves the right to deny or revoke participation of any Publisher website at any time in its sole discretion, whether or not previously approved by Vibrant including if a Publisher Site ceases to comply with the Publisher Guidelines. Publisher will promptly inform Vibrant in writing of any material changes in the themes or content of Publisher Sites.
2.5 No Revenue Guarantee: Vibrant makes no guarantee that any Advertisements will appear on any page of the Publisher Site(s), and consequently, save as may otherwise be agreed in writing on the Publisher Order Form, there is no guarantee that this Agreement or the Services will generate any revenue for Publisher.
2.6 Restrictions on Publisher: Publisher will not transfer, sublicense, lease, lend or otherwise distribute the Software and/or Services to any third party or use the Software and/or the Service(s) in any way that infringes third party rights or is unlawful or inconsistent with this Agreement. Publisher will not attempt to interfere with or disrupt the Services or the Software (including by modification of any Ad Tags or any Advertisements, or the resyndication of any Advertisements) or attempt to gain access to any systems or networks that connect thereto (except as strictly required to access and use the Software or Services). Except as expressly authorised in this Agreement, the Publisher will not: (a) copy or modify the Software or Services; (b) use or provide access to the Software or Services to make the functionality of the Software or Services available to multiple users through any means, including, but not limited to, by uploading the Software to a network or file-sharing service or through any hosting, application services provider, service bureau or any other type of services; or (c) enable a third party to do any of the foregoing. Publisher acknowledges that the Software and Services constitute and contain trade secrets of Vibrant and its licensors, and, in order to protect such trade secrets and other interests that Vibrant and its licensors may have in the Software and Services, Publisher agrees not to disassemble, decompile or reverse engineer the Software or Services nor permit any third party to do so, except to the extent such restrictions are prohibited by Applicable Law.
2.7 Software Modification and Updates: Vibrant may modify or improve the Software or Services, including without limitation the "look and feel" of the Services, at its sole discretion, provided however that such modifications or improvements will provide at least the same or similar functionality for the Services as exists on the Effective Date. Vibrant may make or provide, from time to time, in its sole discretion, updates to the Software. If Vibrant requests Publisher to implement such updates, Publisher agrees to implement any such updates within five (5) days of receipt of the same from Vibrant.
2.8 Audit and Service Suspension: Vibrant has the right to audit the Publisher's implementation, use of and access to the Services at any time during the Term and for 6 years thereafter. Vibrant may suspend Publisher's access to or use of the Services at any time, in its reasonable discretion, for (or if it suspects) (a) any improper, unlawful or otherwise fraudulent use of the Software and/or Services; (b) the Publisher does not implement software updates in accordance with clause 2.7 above; or (c) Publisher's non compliance with the Publisher Guidelines.
3. PUBLISHER OBLIGATIONS, LICENCE OF MATERIAL AND WARRANTIES
3.1 Provision of Telecommunications and Internet Services: Publisher acknowledges and agrees that Publisher's use of the Software and Services is dependent upon access to telecommunications and internet services. Publisher will be solely responsible for acquiring and maintaining all telecommunications and internet services and other hardware and software required to access and use the Software and Services, including, but not limited to any and all costs, fees, expenses, and taxes of any kind related to the foregoing. Vibrant will not be responsible for any loss or corruption of data, lost communications, or any other loss or damage of any kind arising from any such telecommunications and/or internet services.
3.2 Operation of Publisher Sites and access to Vibrant Publisher Dashboard: Publisher is solely responsible for ensuring the continued operation of Publisher Sites, access to the Services, implementation of the relevant Ad Tags and display of Advertisements. Publisher is solely responsible for the security of, and for all actions taken using, its Vibrant Publisher Dashboard login ID and password.
3.3 Placement of Ad Tags: Publisher will place the relevant Ad Tags only within Publisher Sites and in those locations agreed by the Publisher and Vibrant (acting reasonably). Publisher shall ensure that Ad Tags are implemented on the Publisher Sites by no later than five (5) days from the Effective Date. Publisher grants permission to Vibrant to index and cache Publisher Site(s) and any portion thereof, by manual or automated means, for the purpose of directing Advertisements to Publisher Sites.
3.4 Exclusivity: If Publisher uses the Services to implement Vibrant In-Text Links, Publisher will not during the Term enter into any other arrangement or agreement with any third party to obtain services for the Publisher Sites that (a) deliver article-based in-text links the same or substantially similar to Vibrant In-Text Links (including but not limited to services provided by Kontera, Infolinks, Skimlinks and/or Adbrite); and/or (b) are revenue generating and relate to the click through of links placed in editorial content. If Publisher uses the Vibrant Toolbar product, Publisher will not during the Term enter into any other arrangement or agreement with any third party to obtain services for the Publisher Sites that place a display element or service similar to the Vibrant Toolbar on the Publisher Sites. If the Publisher uses Vibrant Image, Publisher will not during the Term enter into any other arrangement or agreement with any third party to obtain
services for the Publisher Sites that display contextual links on or near image content and/or which relate to the production of links the same or substantially similar to those links generated from use of the Vibrant Image product.
3.5 IASH Accreditation: The Publisher agrees to, and warrants that it shall, comply with the IASH Site Accreditation Requirements set out in Schedule C in respect of all Publisher Sites which feature Display Products (provided that all references to the "site" shall be deemed to refer to the Publisher Sites).
3.6 Licence to use Trade marks: Publisher grants to Vibrant a non-exclusive licence to use and reproduce Publisher's trade marks, trade names, service marks and associated logos, for the purpose of referencing the Publisher or Publisher Site(s) in an insertion order and other ancillary documentation, marketing material and/or similar documentation. Any other uses must be approved by Publisher in writing in advance of such use by Vibrant (such approval not to be unreasonably withheld or delayed). Publisher will respond to requests to use its marks by Vibrant in a reasonable time period.
3.7 Licence to use content on the Publisher Site(s): Publisher grants to Vibrant a non-exclusive, worldwide, royalty free, sub-licensable licence to use the content on the Publisher Site(s) (including any text or images thereon) for the purpose of providing the Services.
3.8 Toolbar Content: If the parties agree that the Vibrant Toolbar shall include Publisher content (as agreed in writing by the parties during the Term), Publisher will provide Vibrant with content (in such format as agreed from time to time) for inclusion in the Vibrant Toolbar, which content may include graphic files containing Publisher logos or trade marks, house advertising for Publisher properties and/or URLs of Publisher-controlled websites or web services to which other Publisher content is to be linked (collectively "Toolbar Content"). Publisher hereby grants Vibrant a non-exclusive, worldwide, sub-licensable, royalty free license to use the Toolbar Content to provide the Services including to allow incorporation of Toolbar Content into the Vibrant Toolbar and display of such on the Publisher Sites.
3.9 Publisher Warranties: Publisher represents, undertakes and warrants that: (a) Publisher Site(s) (and any content therein) do not infringe any Intellectual Property Rights, rights of publicity, privacy or data protection rights of any third party and are not defamatory, vulgar, pornographic or obscene; (b) its use of the Software and Services will be in compliance with (i) all Applicable Laws and will not violate any laws regarding unfair competition, privacy, data protection or false advertising and (ii) the Publisher Guidelines; (c) it owns or is licensed to use all content on the Publisher Sites (including the images, pictures, text and editorial contained on the Publisher Sites) and that use or exploitation of any content by Vibrant as envisaged by this Agreement (whether in connection with the Services or otherwise) will not infringe the rights of any third party (including Intellectual Property Rights); (d) it shall comply with all general guidelines issued by the IAB (Internet Advertising Bureau) from time to time; (e) it will not fraudulently or purposely manipulate the content of the Publisher Site(s) in such a manner that may result in the serving of less contextually relevant advertising; and (f) it will not: (i) generate fraudulent, automated or otherwise invalid actions, clicks or impressions; (ii) use robots or other automated query tools or computer generated search requests or any other search engine results optimisation techniques or software unless authorised by Vibrant; or (iii) authorize a third party to do any of the foregoing.
4. REPORTING, PAYMENT AND REVENUE
DEFINITIONS
4.1 "Net Revenue" means Gross Revenue less:
(a) any taxes that Vibrant is required to pay or collect in relation to the supply of Services, any credit card processing fees, bad debt and charge-backs, commissions or discounts allowed or paid to advertising agencies, costs related to creative services, refunds to Advertisers and third party business partners, other payments to third parties relating to the Services (all as such relate to this Agreement and the Services provided to the Publisher hereunder); and
(b) costs of sale (including web serving costs), costs associated with servicing Vibrant business partner(s) and Advertiser accounts and costs associated with the implementation and maintenance of the Software and Services and this Agreement (all as such relate to this Agreement and the Services provided to the Publisher hereunder).
CONTENT PRODUCTS - NET REVENUE
4.2 Reporting: Publisher shall receive the percentage of Net Revenue relating to use of Content Products as set out in the Publisher Order Form. Not more than fifteen (15) Working Days after the end of each calendar month, Vibrant will e-mail to Publisher or post in the Vibrant Publisher Dashboard a finalised revenue statement for amounts due to Publisher as its percentage of Net Revenue relating to Content Products for that calendar month. Publisher acknowledges and agrees that the Net Revenue amounts are based solely on Vibrant's final reported numbers taken from its reporting system and on no other source (save in the event of manifest error).
4.3 Terms of Payment: Vibrant will pay Publisher in accordance with the revenue statement at clause 4.2 not later than thirty (30) Working Days following the delivery of the revenue statement.
4.4 Subject to the terms and conditions of the Agreement, Publisher will receive a payment of [50] percent of the Net Per Click Revenues (the "Payment").
4.5 Self Billing: In accordance with Notice 700 and Notice 700/62 issued by HM Revenue & Customs under section 29 and paragraph 2B Schedule 11 Value Added Tax Act 1994 and paragraphs 13 (3A) to (3F) of the Value Added Tax Regulations 1995, Vibrant shall issue a "self-billed invoice" in respect of all supplies of Publisher Site Access necessary for Content Products for the period of 12 months from the date of this Agreement or as agreed with Publisher or until the termination of this Agreement whichever is the later. In such circumstances, Vibrant shall complete self-billed invoices identifying Publisher's name, address and VAT registration number,
together with all other details constituting a full VAT invoice and each self-billed invoice shall include the statement that "The VAT shown is your output tax due to HM Revenue and Customs". Vibrant shall inform Publisher if the issue of self-billed invoices will be outsourced to a third party.
4.6 In the circumstances set out in clause 4.4 above, Publisher shall accept self-billed invoices raised by Vibrant in accordance with clause 4.4 on behalf of Publisher for the period of 12 months from the date of this Agreement or as agreed with Vibrant or until the termination of this Agreement whichever is the later. In such circumstances, Publisher shall not submit invoices to Vibrant in circumstances where Vibrant is able to issue self-billed invoices. Publisher shall inform Vibrant immediately if Publisher's VAT registration number changes, if Publisher transfers its business as a going concern or if Publisher ceases to be registered for VAT.
DISPLAY PRODUCTS - CPM REVENUE
4.7 Vibrant will pay Publisher the CPM Revenue amount indicated in Schedule D for every 1,000 impressions of Advertisements delivered on the Publishers Site(s) using the Display Product to UK users only unless otherwise specified. Not more than fifteen (15) working days after the end of each calendar month, Vibrant will e-mail to Publisher or post in the Vibrant Publisher Dashboard a finalised revenue statement for amounts due to Publisher for that calendar month as CPM Revenue generated by use of Display Products on Publisher Sites. Publisher acknowledges and agrees that the CPM Revenue amounts are based solely on Vibrant's final reported numbers for impressions taken from its reporting system and on no other source (save in the event of manifest error).
4.8 Terms of Payment: Publisher acknowledges and agrees it shall prepare and send a valid VAT invoice for the CPM Revenue due to it as set out in the revenue statement in clause 4.6 (which shall be determinative of the CPM Revenue due to the Publisher save in the event of manifest error). Vibrant will pay Publisher in accordance with the revenue statement and invoice not later than thirty (30) Working Days following receipt of the invoice. For the avoidance of doubt the self billing arrangements at clause 4.4 and 4.5 shall not apply to Display Products.
REPORTING AND REVENUE GENERAL
4.9 Minimums: If all payments due to Publisher for any month under this Agreement are cumulatively less than £100 Vibrant may, in its discretion, credit amounts due to Publisher's account and pay them in the next month in which cumulative amounts due meet or exceed that threshold.
4.10 Taxes: All payments due to Publisher are calculated and made exclusive of taxes, duties, levies, tariffs, and other governmental charges including, without limitation, VAT (collectively, "Taxes"). Publisher will be responsible for payment of all Taxes and any related interest and penalties resulting from any payments made hereunder, other than any taxes based on Vibrant's net income.
4.11 Credits: Without prejudice to Vibrant's other rights or remedies under this Agreement or at law, Publisher acknowledges and agrees that Vibrant may, at its sole discretion, discount, credit back or accrue a credit against payments due to be paid to the Publisher in circumstances in which Vibrant can demonstrate the Advertisement was not in fact delivered or where Advertisement views, impressions and/or click throughs have occurred as a result of a robot, spider, software, or other mechanical, artificial or fraudulent means (as reasonably determined by Vibrant), or revenue is generated by reason of the actions of a person who is paid or deceptively motivated to click on and/or view Advertisements.
4.12 Withholding: In the event of breach by Publisher of this Agreement Vibrant reserves the absolute right to withhold payment from Publishers and take such other steps as it deems necessary. Vibrant will determine, in its reasonable discretion, whether acts or omissions of the Publisher are deceptive, fraudulent or violate this Agreement.
4.13 Bad Debt: Vibrant may deduct from any amounts due to the Publisher (under this Agreement or otherwise) the Publisher's pro rata share of third party underpayments which formed part of the payment (s)/calculation of the payment(s) which Vibrant has previously made or given to Publisher under this Agreement; provided however that Vibrant shall not deduct such underpayments unless and until the relevant third party from which the underlying payments are due has begun proceedings to wind up its business, become subject to bankruptcy or other insolvency proceedings, made an assignment for the benefit of creditors, admits in writing its inability to pay its debts, or otherwise clearly indicates that it is unable to or does not intend to make the relevant payment.
5. DATA PROTECTION AND DATA OWNERSHIP
5.1 Compliance: Both parties recognize the importance of consumer privacy, and therefore warrant that in the performance of the Agreement (and for the Publisher, its operation of the Publisher Site(s) also), they will adhere to Data Protection Legislation.
5.2 Consent and Privacy Policy: Publisher warrants that it shall obtain all consents from visitors to the Publisher Sites necessary for the operation of the Services. Publisher agrees to adopt data protection and privacy practices and post a privacy policy that complies with all Applicable Laws, regulations and best practice standards including that it: (a) discloses the use of, as applicable, cookies, web beacons and similar tracking technologies on Publisher's Sites and in online advertising campaigns; and (b) offers an easy to use method for the user to consent to data collection and targeting.
5.3 Collection of Data: Publisher understands that Vibrant collects non-personally identifiable data in connection with the Services, including, but not limited to, non-personally identifiable information provided by users in response to an Advertisement. To the extent that Vibrant collects any user information and data in connection with the Services on Publisher Site(s), such user information and data shall be the sole and exclusive property of Vibrant and/or its Advertisers, who in their sole discretion, shall have the right to market and re-market information about users and such other data collected without further obligation to Publisher (including any obligation to make any payments in addition to those set out in this Agreement).
5.4 Surveys: The Publisher agrees and acknowledges that Vibrant may conduct surveys involving users of Publisher Sites, provided that Vibrant seeks all consents and provides all notifications required by Applicable Laws and seeks the Publisher's consent for each such survey.
6. INDEMNITIES
6.1 Publisher Indemnity: Publisher will on demand indemnify and hold Vibrant and its officers, directors and employees, and agents harmless from and against any and all liabilities, losses, damages and expenses, (including without limitation court costs and reasonable legal fees), suffered or incurred by Vibrant, its officers, directors, employees and/or agents arising out of or in connection with: (a) a claim that the Publisher Site(s) (and any content therein) (i) is not in compliance with Applicable Law and/or (ii) infringes or misappropriates the Intellectual Property Rights, or publicity, privacy or data protection rights, of any third party; (b) a breach of clause 3.9(c); (c) a claim for injury, damage or loss resulting from Publisher's use of the Software or Services in breach of this Agreement; (d) any material misrepresentations or omissions by Publisher regarding the Software or Service; and (e) Publisher's violation of any other terms or conditions of this Agreement, Applicable Laws or regulations.
6.2 Vibrant Indemnity: Vibrant warrants to the Publisher that to the best of its knowledge and belief the Software and/or Services do not infringe or misappropriate the Intellectual Property Rights of any third party. Vibrant will defend, indemnify and hold Publisher and its officers, directors and employees harmless from and against any liabilities, losses, damages and expenses (including court costs and reasonable legal fees), arising out of or in connection with a breach by Vibrant of the warranty in this clause 6.2. For the avoidance of doubt, Publisher acknowledges and agrees that Vibrant has no indemnity obligations for any claims arising out of or in connection with any of the Advertisements provided to Publisher as part of the Services, including without limitation claims relating to the appearance of particular Advertisements on particular websites. In the event that Vibrant's right to provide the Software and Services is restrained by an injunction or in Vibrant's reasonable opinion is likely to be so restrained, Vibrant may obtain for Publisher the right to continue using the Software and Services, replace or modify the Software and Services so that they become non-infringing, or, if such remedies are not reasonably available, terminate the Agreement without further liability to Publisher. Vibrant shall have no liability under this clause 6.2 to the extent that any third party claims described herein are based on use of the Services and/or Software by the Publisher in a manner that violates this Agreement. THIS CLAUSE 6.2 STATES THE ENTIRE OBLIGATION OF VIBRANT AND ITS LICENSORS WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE SOFTWARE AND/OR SERVICES.
6.3 Each party agrees that in the event of a claim under this clause 6, the indemnified party shall (a) promptly provide notice of any and all relevant claims to the other party; (b) give the indemnifying party sole control of the defence or settlement of the claims; (c) not make any admission as to liability or compromise or agree to any settlement without the indemnifying party's consent; (d) give reasonable cooperation with the defence and settlement of such claims at the indemnifying party's expense.
7. DISCLAIMERS.
7.1 This Agreement states the full extent of each party's obligations and liabilities in respect of the Services, the Software and the subject matter of this Agreement. Except as expressly provided herein, neither party makes any representations or warranties of any kind whatsoever, express or implied, in connection with this Agreement, the Software or Services.
7.2 The parties agree that any condition, warranty, representation or other term concerning the performance of either party's obligations which might otherwise be implied into or incorporated in this Agreement, whether by statute, common law, equity, course of dealing, usage or trade or otherwise, is excluded to the maximum extent permitted by law.
7.3 Vibrant does not guarantee (a) the results of the Software, Services or the Advertisements or that any of these will meet the Publisher's requirements; (b) that the Services or Advertisements will be compatible with Publisher Sites; (c) that the operation of the Services will be error free or uninterrupted; and/or (d) that any errors in the Services will be corrected.
8. LIMITATIONS OF LIABILITY
PLEASE READ THIS CLAUSE CAREFULLY AS IT SETS OUT THE LIMITATIONS OF VIBRANT'S LIABILITY TO THE PUBLISHER.
8.1 Nothing in this Agreement shall exclude or in any way limit any party's liability for (a) death or personal injury caused by its negligence; (b) fraud or fraudulent misrepresentation; and (c) any other liability to the extent such liability may not be excluded or limited by Applicable Law.
8.2 Subject to clause 8.1 and except for liability arising under or in connection with the indemnity at clause 6.1 in no event will either party be liable to the other party for any indirect, incidental, special, exemplary or consequential loss or damages, including loss of income, data, profits, revenue or business interruption whether or not such party has been advised of the possibility of such damages, and whether any claim for recovery is based on contract, tort (including negligence and strict liability) or otherwise.
8.3 Notwithstanding any other provision of this Agreement, in no event will Vibrant's liability to Publisher under or in connection with this Agreement in any calendar year exceed in aggregate the higher of (a) the total amount paid by Vibrant to the Publisher under this Agreement in the six (6) month period preceding the claim or action; and (b) £10,000.
8.4 Subject to clause 8.1 and to the maximum extent permitted by law, Vibrant shall have no liability for any claims, losses, damages or expenses arising out of or in connection with: (a) any information or data provided to Vibrant by Advertisers in connection with the Service, including, but not limited to the substance or content of any Advertisements, (b) the websites connected to such Advertisements and whether the Advertisement and/or website is appropriate for the Publisher Sites; (c) any information provided to Vibrant by the Publisher; (d) any actions taken by Vibrant at an Advertiser's or Publisher's direction; or (e) Publisher's use of any third party
products, services, software or websites that are accessed via the Service, including, but not limited to such products, websites, software and services that relate to Advertisers.
8.5 The Publisher acknowledges and agrees that the limitations of liability and the allocation of risk contained in this Agreement is reasonable taking into account the nature of the Services, the payments agreed by the parties and the parties respective obligations and risks.
9. TERM AND TERMINATION
9.1 Term and Renewals: This Agreement will commence on the Effective Date and will continue subject to termination in accordance with its terms ("Term").
9.2 Either party may terminate this Agreement at any time upon no less than ninety (90) days written notice to the other party.
9.3 Either party may terminate this Agreement effective immediately by notice in writing to the other if the other party:
9.3.1 is in material breach of this Agreement and in the case of a breach capable of remedy fails to cure such material breach within thirty (30) days after receiving notice from the non-breaching party. Without limiting the foregoing, in the event that the Publisher removes any Ad Tags from Publisher Sites or otherwise blocks the operation of the Services without giving Vibrant appropriate notice of termination, such action shall be deemed a material breach of this Agreement not capable of remedy. In all cases of material breach, and subject always to clause 11.8, Vibrant may withhold any and all payments due to Publisher under this Agreement for the two (2) months prior to such material breach and require Publisher to refund to Vibrant any payments already paid to Publisher by Vibrant for such two (2) month period; or
9.3.2 passes a resolution for winding up (otherwise than for the purposes of a solvent amalgamation or reconstruction) or a court makes an order to that effect; or
9.3.3 becomes or is declared insolvent or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or
9.3.4 has a liquidator, receiver, administrator, administrative receiver, manager, trustee or similar officer appointed over any of its assets; or
9.3.5 ceases, or threatens to cease, to carry on business.
9.4 Effect of Termination: Upon expiration or termination of the Agreement: (a) subject to clause 9.3.1, all undisputed amounts payable in accordance with this Agreement that have accrued prior to expiration or termination will be payable in full within 45 Working Days hereof; (b) all rights and licenses of Publisher under the Agreement will terminate and Publisher shall remove all Ad Tags from the Publisher Sites and take all such other steps as Vibrant may reasonably request relating to the cessation of the Services; and (c) Vibrant's obligations relating to the Services will terminate. Clauses 1.7, 2.5, 2.6, 2.8, 6, 7, 8, 10 and 11 will survive expiration or termination of the Agreement.
10. CONFIDENTIAL INFORMATION AND PUBLICITY.
10.1 Use and Disclosure Restrictions: Each party will not use the other party's Confidential Information except as necessary for the performance of the Agreement and will not disclose such Confidential Information to any third party except to its employees and subcontractors that need to know such Confidential Information for the purpose of performing this Agreement, provided that each such employee and subcontractor is subject to a written agreement that includes binding use and disclosure restrictions that are at least as protective as those set out herein. Each party will use all reasonable endeavours to maintain the confidentiality of Confidential Information in its possession or control, but in no event shall it use less than the efforts that such party ordinarily uses with respect to its own proprietary information of similar nature and importance.
10.2 Permitted Disclosure: The obligations in clause 10.1 will not restrict either party from disclosing Confidential Information of the other party: (a) pursuant to the order or requirement of a court, administrative agency, or other governmental body provided that the party required to make such a disclosure gives reasonable notice (where permissible) to the other party to contest such order or requirement; and (b) on a confidential basis to its legal or financial advisors. In addition, each party may disclose the terms and conditions of this Agreement: (i) as required under applicable securities regulations; and (ii) on a confidential basis to present or future providers of venture capital or potential private investors in or acquirers of such party.
10.3 Publicity: Without Vibrant's prior written consent, Publisher shall not release any information regarding any Advertisements, Advertisers, or Publisher's relationship with Vibrant or its customers, including, without limitation, in press releases or promotional or merchandising materials. Vibrant shall have the right to refer to its work for, and relationship with, the Publisher for marketing and promotional purposes. Save as set out above, no stand-alone press releases or general public announcements shall be made without the mutual consent of Vibrant and Publisher.
11. General.
11.1 Waiver: The failure of either party to enforce or to exercise at any time or for any period any term of or any right pursuant to this Agreement shall not be construed as a waiver of any such term or right and shall in no way affect that party's right later to enforce or exercise it.
11.2 Notices: All notices required or permitted under this Agreement will be in writing and delivered by confirmed post or courier and in each instance will be deemed given upon receipt. All communications will be sent to the addresses set forth in the Publisher Order Form or as may be specified by either party to the other in accordance with this clause.
11.3 Severability: If any provision of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid or unenforceable then such invalidity or unenforceability shall not affect the other provisions of this Agreement which shall remain in full force and effect. The parties agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the same effect as would have been achieved by the invalid or unenforceable provision.
11.4 Force Majeure: Neither party shall be liable for any failure to perform or delay in performance of any of its obligations under this Agreement caused by circumstances beyond its reasonable control (a "Force Majeure Event"). The party so affected shall promptly notify the other party in writing of its reasons for the delay or stoppage. Provided the affected party complies with the notification requirement in this clause 11.4, its performance under this Agreement shall be suspended for the period that the Force Majeure Event continues and it will have a reasonable extension of time for performance of its obligations taking all circumstances into account. As regards the delay or stoppage arising from the Force Majeure Event (a) any costs arising from such delay or stoppage shall be borne by the party incurring those costs; and (b) each party shall take reasonable steps necessary to bring that event to a close or to find a solution by which obligations under this Agreement may be performed despite the Force Majeure Event. If the Force Majeure Event continues for more than one month, either party may terminate this Agreement with immediate effect on giving written notice to the other party.
11.5 Relationship of parties: Nothing in the Agreement will be construed to create a partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other's behalf without such other party's prior written consent.
11.6 Assignment: Neither party may assign or transfer its rights and/or obligations under the Agreement, in whole or in part, without the other party's written consent except in the event of a Change of Control (as defined below), in respect of which the other party's consent shall be deemed to have been given. Any attempted assignment or transfer in violation of this clause will be null and void. "Change of Control" means, with respect to a party: (a) the direct or indirect acquisition of either (i) the majority of voting stock of such party or (ii) all or substantially all of the assets of such party, by another entity in a single transaction or a series of transactions; or (b) the merger of such party with another entity. Subject to the foregoing restrictions, the Agreement shall inure to the benefit of the successors and permitted assigns of the parties.
11.7 Entire Agreement and Variation: This Agreement constitutes the entire agreement between the parties and supersedes all previous agreements, arrangements, undertakings or proposals (whether written or oral). The parties agree that, save as expressly set out herein, neither party has relied on, and will not have any liability for, any untrue statement or representation made by it (whether innocently or negligently) upon which the other party relied in entering into this Agreement, unless such untrue statement or representation was made fraudulently. This Agreement shall prevail over any inconsistent terms and conditions in any other agreement between the parties or referred to in correspondence or elsewhere and any conditions or stipulations to the contrary are hereby excluded and extinguished. This Agreement may be amended, modified or superseded, only by a written instrument signed by the parties hereto.
11.8 Non-Exclusive Remedies: The exercise by either party of any right or remedy under the Agreement will be without prejudice to its other rights or remedies under the Agreement, at law, in equity or otherwise.
11.9 Equitable Relief: Each party acknowledges that a breach by the other party of any confidentiality or proprietary rights provisions of this Agreement may cause the non-breaching party irreparable damage, for which the award of damages would not be adequate compensation. Consequently, the non-breaching party may institute an action to restrain the breaching party from any and all acts in violation of those provisions, which remedy will be cumulative and not exclusive, and a party may seek the entry of an injunction restraining any breach or threatened breach of those provisions, in addition to any other relief to which the non-breaching party may be entitled at law or in equity.
11.10 No Third-party Beneficiaries: A person who is not a party to this Agreement shall not have any rights under the Contract (Rights of Third Parties) Act 1999 to enforce any term of this Agreement but this does not affect any right or remedy of a third party that exists or is available apart from that Act.
11.11 Counterparts: This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.
11.12 Governing Law: This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes and claims) shall be governed by and construed in accordance with the laws of England and each party agrees to submit to the exclusive jurisdiction of the courts of England and Wales over any claim or matter arising under or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
