Updated January 1, 2017
These Terms and Conditions (the “Terms and Conditions”) are incorporated into the attached Insertion Order by and between RLLCLL, LLC (RLLCL) and Client (such Insertion Order and the Terms and Conditions, together, the “Agreement”).
1. SCOPE OF WORK: Client hereby appoints as Client’s advertising agent for the purposes of managing and selling Client’s advertising inventory located on websites and other digital properties owned or managed by Client (as specified on the attached Insertion Order, each a “Client Site”) to Advertising Entities (as defined below). The Advertising Entities shall purchase such advertising inventory to deliver promotion activity to the Client Site(s) (“Advertisements”). “Advertising Entities” means any party engaged in purchasing, creating, placing or utilizing Advertisements on the Client Site(s) here under, including without limitation, direct advertisers, agencies, ad exchanges and ad servers.
2. SERVICES; FURTHER ASSURANCES: RLLCL shall represent Client in the non-guaranteed sale of certain of Client’s ad inventory to those Advertising Entities selected in RLLCL’s sole discretion. Notwithstanding the preceding sentence, Client may by written notice to RLLCL elect to refrain from transaction with any such Advertising Entity. RLLCL shall invoice and/or use other commercially reasonable efforts to collect earnings owed or attributable to Client from each Advertising Entity resulting from the sale of Client’s ad inventory to such Advertising Entity. RLLCL will assist in the identification, selection and management here under of Advertising Entities on behalf of Client. Client hereby designates and appoints RLLCL as its representative to take such action on Client’s behalf and to exercise such powers and perform such duties as are delegated to RLLCL by the terms of this Agreement, together with such powers as are reasonably incidental thereto. RLLCL shall not have any duties or responsibilities to Client except those expressly set forth herein, nor shall RLLCL deemed to have any fiduciary relationship with Client. Client will deliver Client’s “advertising tags” to RLLCL and such other content, information, and data (collectively, the “Client Content”) as necessary for RLLCL to render the services described in this Agreement, as determined in RLLCL’s reasonable discretion. Each party agrees to perform acts and to execute and deliver any further documents as may be reasonably necessary to carry out the intent and provisions of this agreement.
3. FEES: Subject to Sections 4 and 10 below, RLLCL hereby agrees to pay Client the greater of (a) Received Client Revenue (as defined below), less the Fees (as defined below), or (b) if a Floor CPM (as defined below) is agreed upon in an Insertion Order, the Floor CPM. Client hereby authorizes RLLCL to retain the Fees and/or the amounts received by RLLCL in excess of the Floor CPM, as the case may be, from any payments made by RLLCL to Client here under for the satisfaction of Client’s payment obligations under this Agreement. Client is responsible for all taxes related to the Received Client Revenue, other than taxes based on the revenue of RLLCL. “Received Client Revenue” means, with respect to each calendar month, revenue earned here under by Client from an Advertising Entity and actually received by RLLCL on Client’s behalf, net of any third party fees related to the services provided here under, expenses or fees described on an Insertion Order and other transaction or service fees charged by RLLCL from time to time. “Fees” means the percentage of Client Received Revenue specified under the heading “Rev. Share” on the Insertion Order. “Floor CPM” means the CPM designated on the Insertion Order under the heading “Floor CPM” (if any). The Floor CPM shall be calculated based on the monthly impressions actually served, as calculated in accordance RLLCL’s transaction records for such month.
4. PAYMENT TERMS: RLLCL shall retain the Fees from each payment from Advertising Entities and shall remit the balance of the Received Client Revenue, if any, to the Client within the time period specified in the Insertion Order.
5. TERM AND TERMINATION: This Agreement shall commence on the date of the Insertion Order and continue until terminated by the parties as provided herein (the “Term”). This Agreement may be terminated by either party upon two (2) days’ prior written (including email) notice to the other party. Termination of this Agreement shall not relieve either party from payment obligations arising prior to such termination.
6. REPRESENTATIONS, WARRANTIES AND COVENANTS; EXCLUSIONS: Client hereby represents and warrants to, and covenants with, RLLCL that (a) this Agreement is a duly authorized, binding agreement of Client and all necessary actions of Client have been taken to authorize this Agreement; (b) it owns all of the Client Sites and/or has the necessary authority to enter into this Agreement with respect to the Client Sites; (c) the URLs listed on the Insertion Order are the only URLs on which Advertisements shall run; and (d) Client and each Client Site will comply with all applicable laws, rules and regulations. RLLCL hereby represents and warrants to Client that this Agreement is a duly authorized, binding agreement of RLLCL and all necessary actions of RLLCL have been taken to authorize this Agreement.
SECTION 6 OF THIS AGREEMENT CONTAINS THE ONLY WARRANTIES, EXPRESS OR IMPLIED, MADE BY RLLCL. ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARE EXPRESSLY EXCLUDED AND DISCLAIMED. RLLCL DISCLAIMS ANY IMPLIED WARRANTIES, PROMISES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND/OR NON- INFRINGEMENT, AND FURTHER DISCLAIMS ALL WARRANTIES WITH REGARD TO THE RESULTS CLIENT MAY OBTAIN (INCLUDING THE GENERATION OR COLLECTION OF REVENUE, IF ANY, FROM THE USE OF THE RLLCL SERVICES HERE UNDER) FROM ENTERING INTO THIS AGREEMENT. THE RLLCL SERVICES ARE AVAILABLE ON AN “AS-IS” BASIS AND RLLCL DISCLAIMS ALL WARRANTIES RELATED THERETO EXCEPT AS EXPRESSLY SET FORTH HEREIN. EXCEPT FOR THE PAYMENT OF RECEIVED CLIENT REVENUE AND AS CONTAINED IN SECTION 6, UNDER NO CIRCUMSTANCE SHALL RLLCL HAVE ANY LIABILITY TO CLIENT OR ANY THIRD PARTY EXCEPT FOR RLLCL’S INTENTIONAL MISCONDUCT. RLLCL HAS BEEN RETAINED BY CLIENT ONLY IN A REPRESENTATIVE CAPACITY TO PERFORM THE SERVICES DESCRIBED IN THIS AGREEMENT. RLLCL DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES REGARDING ANY ADVERTISING ENTITIES AND CLIENT ACKNOWLEDGES THAT ALL ISSUES REGARDING ADVERTISEMENTS PLACED BY AN ADVERTISING AGENCY AND ALL TECHNOLOGIES, PRODUCTS OR SERVICES DELIVERED BY AN ADVERTISING AGENCY ARE BETWEEN CLIENT AND SUCH ADVERTISING ENTITY.
7. LIMITATION OF LIABILITY: IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES WHATSOEVER, NOR SHALL ANY PARTY BE LIABLE TO THE OTHER FOR DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF OR UNAUTHORIZED ACCESS TO INFORMATION, AND THE LIKE, INCURRED BY EITHER PARTY ARISING OUT OF THIS AGREEMENT (PROVIDED THAT THIS LIMITATION SHALL NOT LIMIT CLIENT’S OBLIGATION TO INDEMNIFY UNDER SECTION 8), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL RLLCL OR ANY OF ITS AFFILIATES BE LIABLE TO CLIENT FOR AN AMOUNT IN EXCESS OF THE FEES ACTUALLY RECEIVED BY RLLCL PURSUANT TO THIS AGREEMENT. IN NO EVENT WILL RLLCL OR ITS AFFILIATES BE LIABLE FOR ANY DEFECT OR FAILURE OF ANY SYSTEM USED BY ANY ADVERTISING ENTITY.
9. LICENSES: a) Trademarks. Subject to the terms of this Agreement, Client hereby grants to RLLCL a non-exclusive, non-transferrable, non-sublicense able, worldwide, royalty-free license to use Client’s trademarks, trade names and logos (the “Client Marks”) and the Client Content for rendering the services described here under and for use of the Client Marks in RLLCL’s presentations, marketing materials, customer lists and web listings of customers. Client grants no other rights than are expressly granted here under, and RLLCL acknowledges Client’s exclusive ownership of the Client Marks and Client Content. RLLCL agrees not to take any action inconsistent with such ownership. Client may terminate, in whole or in part, the RLLCL’s license granted under this Section 9(a) if, in Client’s sole discretion, such use does not meet such party’s then-current trademark usage policy or similar policies.
b) Client represents and warrants to, and covenants with, RLLCL that the Client Site(s) do not and will not contain: (i) any content that is defamatory, libelous, or that violates any applicable law or regulation, (ii) any content that infringes or violates any copyright, trademark, patent, right of publicity, right of privacy, moral right, or other right of any third party, (iii) nudity, pornography, or offensive graphics, content or language; (iv) hate material or inappropriate or controversial subject matter of any nature, including without limitation that which pertains to illegal activity. In no event shall RLLCL remit Received Client Revenue to Client that is derived from advertising on such websites.
d) If RLLCL, in its sole discretion, determines that Client has breached any portion of this Section 10, RLLCL may immediately terminate this Agreement. Furthermore, in RLLCL’s sole discretion, RLLCL reserves the right to withhold Received Client Revenue if Client (i) breaches the Agreement, or (ii) engages in any deceptive or fraudulent activity, including, without limitation, clicks without referring URLs, extraordinarily high numbers of repeat clicks, fraudulent impressions generated by any person, robot, automated program or similar device, impressions generated through pop-unders/pop-overs or any clicks from non-approved root URLs including pornographic and violence websites (as determined by RLLCL in its sole discretion).
e) In the event RLLCL withholds any amounts pursuant to this Section 10, the parties acknowledge that such amounts constitute liquidated damages for the harm to business reputation by such conduct, which the parties further agree is difficult to ascertain. This amount represents compensatory damages only, and not a penalty.
11. CONFIDENTIALITY: “Confidential Information” means any tangible and intangible non-public information in any form (including written information, oral statements and electronically stored data) which a party discloses (the “Discloser”) to the other party (the “Recipient”) including, without limitation, information relating to trade secrets, systems, know-how, products, processes (including manufacturing processes), inventions, computer software programs, marketing or sales techniques, financial condition, costs, business interests, initiatives, objectives, plans, strategies, customers, suppliers, lenders, underwriters, or employees, that is marked as confidential or identified at the time of disclosure as being confidential or is otherwise disclosed under circumstances that would lead a reasonable person to conclude that such information is confidential, excluding information that: (a) was in Recipient’s possession before receipt from the Discloser; (b) is in or enters the public domain without a breach of this Agreement; (c) is rightfully received by Recipient from a third party without a duty of confidentiality; (d) is disclosed by the Discloser to a third party without a duty of confidentiality; or (e) is independently developed by Recipient without use of or reference to the Discloser’s Confidential Information. Recipient will protect the Confidential Information, for three (3) years from the date of disclosure, by using at least the same degree of care as it uses to protect its own Confidential Information, but no less than a reasonable degree of care, to prevent unauthorized use, disclosure or publication. Not limiting the foregoing, Recipient: (a) will not use, disclose, make available or reproduce the Confidential Information (or permit others to do so) except as expressly authorized in this Agreement; (b) will not disclose any such Confidential Information to anyone except employees and directors of Recipient to whom disclosure is necessary for the performance of the Agreement; and (c) will appropriately notify such employees and directors that the disclosure is made in confidence and will be kept in confidence in accordance with this Agreement. If Recipient becomes aware of any loss or unauthorized disclosure of Confidential Information, Recipient will promptly notify Discloser of such and use reasonable efforts to retrieve such Confidential Information. Recipient’s disclosure of Confidential Information pursuant to a judicial or administrative order will not be deemed to be a breach of this Agreement, provided Recipient (i) provides timely written notice of such order to the Discloser and (ii) reasonably cooperates with the Discloser’s efforts to contest or limit the scope of such order.
12. NOTICES: All notices or other instruments or communications provided for in this agreement shall be in writing and signed by the party giving same and shall be deemed properly given when (a) delivered in person, (b) one (1) day after deposit with a reputable overnight courier, (c) three (3) days after being sent by registered or certified United States mail, postage prepaid, or (d) the next business day if sent by confirmed facsimile or other confirmed electronic means, in each case addressed to such party at the address set forth above. Each party may, by notice to the other party, specify any other address for the receipt of such notices, instruments or communications.
13. LEGAL EXPENSES: In the event either party breaches any part of the this agreement and institutes any legal action to enforce or construe any provision of this Agreement, the non-prevailing party shall pay the prevailing party its reasonable costs and expenses (including reasonable legal fees) incurred by such prevailing party in connection therewith.
14. GOVERNING LAW; VENUE: This Agreement, and the transactions, to which it relates, shall be governed by and construed and enforced in accordance with the law of the State of California, excluding its choice of law rules. Any claims or legal actions by one party against the other shall only be commenced and maintained in any appropriate state or federal court located in San Francisco, CA, and both parties hereby submit to the exclusive jurisdiction and venue of these courts.
15. FORCE MAJEURE: Notwithstanding anything else contained herein to the contrary, RLLCL shall not be in default or otherwise liable for any delay in or failure of its performance under this Agreement where such delay or failure of its performance arises by reason of any Act of God, actions of any government or any governmental body, acts of war, the elements, strikes or labor disputes, or other cause beyond the control of RLLCL.
16. GENERAL: RLLCL is an independent contractor. This Agreement does not establish an employer/employee relationship, joint venture, agency or partnership between the parties. If any provision of this Agreement is held to be void, invalid or inoperative, the remaining provisions of this Agreement shall continue in effect and the invalid portion of any provision shall be deemed modified to the least degree necessary to remedy such invalidity while retaining the original intent of the parties. The failure of either party to partially or fully exercise any rights or the waiver of either party of any breach, shall not prevent a subsequent exercise of such right or be deemed a waiver of any subsequent breach of the same or any other term of this Agreement. Neither party shall assign any of its rights or obligations under this Agreement to any other entity without the other party’s prior written consent; provided that RLLCL may assign or transfer the Agreement and its rights under the Agreement to an entity acquiring all or substantially all of the assigning RLLCL’s assets, whether by acquisition of assets or shares or by merger or consolidation. This Agreement, including any exhibits attached hereto, sets forth the entire agreement between the parties on this subject matter and supersedes all prior negotiations, understandings and agreements between the parties concerning this subject matter. RLLCL reserves the right to modify the Agreement upon thirty (30) days written notice to Client (email notice is sufficient). By continuing to use any of the RLLCL services, Client agrees to be bound by the revised terms and conditions. No modification or waiver of any terms of the Agreement is binding on RLLCL unless RLLCL agrees in writing. The provisions of Sections 7, 8, 10, 11, 12 13, 14, 15 and 16 any accrued payment obligations plus any other provisions which by their nature are intended to survive, shall survive the termination of this Agreement regardless of the reason or reasons therefore. This Agreement may be executed and delivered (including by fax or other electronic means) in any number of counterparts, each of which shall be an original and all of which together shall constitute one and the same document.