AD REPRESENTATION & AFFILIATE LINK AGREEMENT
PLEASE READ VERY CAREFULLY THESE TERMS AND CONDITIONS BEFORE REGISTERING FOR
THE TRACK ENTERTAINMENT NETWORK. PARTICIPATION IN THE TRACK ENTERTAINMENT
NETWORK INDICATES THAT YOU ACCEPT THESE TERMS AND CONDITIONS. IF YOU DO NOT
ACCEPT THESE TERMS AND CONDITIONS, PLEASE DO NOT REGISTER FOR OR PARTICIPATE IN
THE TRACK ENTERTAINMENT NETWORK.
This agreement (“Agreement”) by and between Publisher and The
Management Group, LLC, d/b/a Track Entertainment (“Track”), a New York limited
liability corporation with its principal place of business located at 485
Madison Avenue, New York, New York 10022 (together, the “Parties”)
consists of these Terms and Conditions and the accompanying attachments, which
are incorporated in full by this reference. “You” or “Publisher” means any
entity identified in the enrollment form submitted by the same or affiliated
persons, and/or any agency or network acting on its (or their) behalf, which
shall also be bound by the terms of this Agreement. In the event of a conflict
between these terms and conditions and the terms of the accompanying
attachments, these terms and conditions shall control.
RECITALS
WHEREAS Track and its affiliates are in the
business of, among other things, selling advertising and sponsorships for
distribution via computer interfaces such as ‘web sites’, electronic mail and
other end user interfaces including but not limited to applications for
delivering audio and audiovisual content which are accessible via the “Internet”
including; without limitation, the world wide web.
WHEREAS, Publisher owns or maintains a web site,
the “home page” of which is located at the Universal Resource Locator (“URL”)
indicating the unique Internet address as follows: www.__________ hereinafter the “Web Site(s)”);
WHEREAS, Publisher
wishes to retain Track, and Track agrees to act as Publisher’s exclusive third
party representative for the purpose of placing Advertising on the Site(s).
NOW, THEREFORE,
in consideration of the foregoing Recitals, the mutual covenants and agreements
herein expressed, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Parties hereby agree as
follows:
1. Definitions
For purposes of this
Agreement, the following definitions shall apply:
1.1
“Ad Serving System” means the vehicle for measuring user accessing of
and/or visits to the Site(s).
1.2
“Ad Impression” means each individual instance of Advertising accessed
by an end user of the Site(s), as measured exclusively by Track’s Ad Serving
System(s), or other methods utilized by Track and commonly used in the Internet
advertising industry.
1.3
“Advertiser” means each Person that promotes itself, its brands or the products
or services it offers by the purchase of media opportunities through Track’s
services or that provides Advertising to Track for distribution through the
Network and other media properties represented by Track.
1.4
“Advertising” means any form of third-party promotional material,
information or message distributed through the Site(s) including, without
limitation, image display devices created by computer code and generally known
within the Internet industry as: (a) “banners” and “buttons” (whether rotating
or fixed and of all varying sizes); (b)“pop-up windows”; (c) text or textlinks;
(d) audio/and or video interstitials; and (e) any other form of branded
message(s) and their contents, including, without limitation, sponsorships,
multimedia advertisements, and electronic commerce arrangements of any type or
form.
1.5
“Bonus Ad Impressions” means Ad Impressions for which Advertiser is not
charged or billed, including, without limitation, tests, trial campaigns, and
Ad Impressions that Track delivers to Advertiser as a means of generating good
will.
1.6
“Network” means the group of web sites Track represents for Advertising
sales.
1.7
“Newsletter” means any publication associated with and distributed via
targeted email to registered users of the Web Site.
1.8
“Over-Delivery” means Ad Impressions, other than Bonus Ad Impressions,
which exceed the amount purchased by an Advertiser in connection with a
particular Advertising campaign.
1.9
“Person” means an individual, a partnership, a corporation (and its
subsidiaries, parent companies, affiliates and related companies), an
association, a joint stock company, a trust, a joint venture, an unincorporated
organization, or a governmental agency (or department, agency or political
subdivision thereof). If “Person” refers to an agency or marketing firm,
“Person” shall also refer to all clients represented by said agency or
marketing representative.
1.10
“Revenues” means the gross amount of billings actually earned by Track
in connection with Advertising on the Site(s) (whether measured by the delivery
of Ad Impressions, the performance of completed actions such as click-throughs
or actions following a click-through including, without limitation, completing
forms or surveys, making a purchase, downloading materials or performing a click
or clicks on an Advertiser’s web site) less third party costs actually incurred
by Track in connection with delivering “rich media Advertising” including,
without limitation, Advertising comprised of streaming audio and/or streaming
video) to the Site(s), if applicable, and/or delivering the Newsletter, if
applicable as well as agency fees, brand research, charge backs, bad debt,
refunds and other offsets.
1.11
“Site(s)” mean individually or collectively, as applicable, the Web Site,
Newsletter and/or any component or extension (i.e. wireless product) of the
site that can be packaged and sold for advertising.
1.12
“Syndication” means the grant by Track to third parties of the right to
make content which is distributed through the Site(s) and/or Newsletter
viewable or otherwise accessible on web site(s) owned or controlled by such
third parties.
1.13
“Tag” means the unique line of code, in HTML, Java, Javascript, or any
other applicable computer language or format provided by Track to Publisher to
be affixed or included in the Site(s) which enables Track to deliver
Advertising to, measure Ad Impressions and collect other information from the
Site(s).
1.14
“User(s)” means any Person that accesses content distributed on or
through the Site(s).
2. Track’s
Appointment and Obligations
2.1
Publisher hereby appoints Track as its exclusive representative,
authorized to sell Advertising on Publisher’s Site(s) exclusively during the
Term. Track agrees to use reasonable commercial efforts to sell Advertising
throughout the Term, although Publisher acknowledges that Track can and is not
guaranteeing sales results for Publisher.
2.2
Throughout the Term, upon Publisher’s request, Track will provide, at a
cost of $.06 CPM to Publisher, the use of Track’s Proprietary Ad Serving System
to measure Ad Impressions on the Site(s). Track retains the right to increase
this ad serving cost to publisher upon 60 days written notice to website. In
addition, rich media fees as part of a campaign will be subtracted from
Revenues (see 2.4).
2.3
Track shall bill, receive and collect all Revenues due in connection
with the sale of Advertising.
2.4
Track shall credit to Publisher’s account, an amount equal to sixty
percent (60%) of the Revenues collected by or credited to Track during the Term
less any aforementioned ad serving costs in 1.10 paragraph (“Publisher’s
Share”) and shall retain the balance of such Revenues for its own account
(“Track’s Share”). When no Banners from third-party advertisers are placed in
the Advertising units on the Affiliate Websites, Track shall at its option,
place Banners linking to Track owned properties and/or other bonus third-party
ads in the Advertising unit until new third-party ads become available.
Compensation for Track and/or bonus (non-revenue generating) Banners will be
paid to the Publisher at a rate of twenty-five cents ($0.25) per click-thru
generated from the Banners. Publisher agrees to keep strictly confidential the
fact and amount of the payment under this Agreement, and shall not disclose
such information to any other person or entity, unless required by applicable
securities or other laws, law or disclosed in confidence to Affiliate
attorneys.
2.5
Within fifteen (15) days following the end of each calendar month during
the Term (a “Statement Period”), Track shall make available to Publisher a
statement of the Revenues for the previous calendar month (a “Statement” and
collectively with any other Statement, the “Statements”) setting forth the
Revenues earned for that Statement Period. Within forty-five (45) days
following the delivery of a Statement Track shall remit to Publisher payment
for such Statement, except that if Publisher’s Share for any Statement is less
than Fifty ($50.00) Dollars, such monies shall be credited to the Statement for
the following month. Notwithstanding the provisions of this Section 2.5,
Publisher acknowledges and agree that Track shall not be required to remit to
Publisher’s Share of Revenues until Track actually receives such Revenues from
the Advertiser in connection with an Advertising campaign placed on the
Site(s).
3. Publisher’s
Obligations
3.1 Publisher shall
maintain the Web Site throughout the Term, on a 24-hour per day/seven-day per
week basis, in a commercially viable condition for the delivery of Advertising
sold by Track in accordance with the terms and conditions of this Agreement. Publisher
guarantees that Web Site downtime will be less than 1.5% during the term and Publisher
shall maintain the Web Site(s) at a quality standard that is not less than the
standard that exists as of the Effective Date and in a manner in keeping with
the quality of other web sites participating in the Network.
3.2 Publisher shall, at no
expense to Track, insert Tags on the portion of the Site(s) known within the
Internet industry as the ‘home page’, and on such other portions of the Site(s)
as Publisher and Track shall mutually agree, in such manner as to insure that
the Advertising relating to the Tag on such page(s) is fully and clearly
visible within the portion of such page(s) that is visible by the User without
requiring the User to scroll vertically or horizontally through or to maximize
such page(s), or to view them under any non-standard (such as “full screen”)
browser option, unless otherwise specifically approved, in each instance, by
Track. Publisher shall not place or insert any Tag on any web site other than
the Site(s), nor will Publisher artificially inflate Ad Impression totals on
the Site(s) by use of any means or device, including, without limitation, any
device, program, hidden frame, java pop-ups, robots or otherwise.
3.3 Publisher shall be
solely responsible for any costs or expenses it incurs in connection with the
Network or the performance of its obligations hereunder including, without
limitation, expenses associated with HTML, Java or other programming language
and linking pages on the Site(s) to the Network (including its ad server).
3.4 Any Advertising
campaign which commences prior to the end of the Term and which campaign was
sold by Track for publication specifically on the Web Site(s) shall continue
until the date that such campaign is scheduled to conclude (and all Tags shall
remain in place until such scheduled conclusion date), notwithstanding the
expiration of the Term. In such event, Track shall continue to collect all
Revenues from such campaign and shall continue to credit and pay Publisher it’s
share of Revenues as otherwise provided herein.
3.5 In respect of any
Advertising campaign which is proposed by Track prior to the end of the Term
and which Publisher elects to implement on the Site(s) within six (6) months
after the end of the Term, on the same or substantially similar terms as
proposed by Track, Publisher acknowledges that, notwithstanding the termination
or expiration of the Term, Track shall be entitled to collect all Revenues in
respect of such campaign and shall pay Publisher its share of such Revenues,
which shall be determined as if this Agreement had remained in full force and
effect, within thirty (30) days of its receipt of such Revenues.
3.6 To ensure Publisher’s
Web Site(s) traffic and audience is adequately represented within our network,
you agree to sign the Traffic Assignment Language below (pg.13) and to
aggregate and assign your traffic so that it appears under Track’s name with
respect to third party traffic and audience measurement and reporting
services. By doing this, you do not forfeit the right to be independently
tracked and reported by these reporting services and if your traffic is large
enough to be independently reported than it will continue notwithstanding the
assignment of traffic herein.
3.7 Publisher agrees that
within 45 days of signing this agreement Publisher will implement standard IAB
units (728x90, 300x250, 160x600) on every applicable page within the Web Site.
In addition to these IAB units, Publisher agrees that whenever necessary,
whether during branded campaigns or otherwise, it will implement custom units
(high impact units i.e. roadblocks) on all applicable pages throughout the Web
Site including but not limited to Homepage and Venue Pages. Publisher agrees
that all ad units including rich media will be placed on their site in
accordance with Track’s specifics instructions designated locations.
3.8 Publisher agrees to
remove Google advertising and tags when Track requires inventory to deliver a
campaign or when brands running through the Google tags are competitive to
Publisher or overlap and duplicate Track’s exclusive sales relationship with
Publisher.
3.9 Publisher agrees from
time to time to syndicate content from Track owned property Clubplanet.com and
to link to and credit Clubplanet where applicable and when a paying advertiser
requests specific content integration.
3.10
Publisher agrees to place an “Advertising Inquiries” link on their
navigation bar that clearly defines Track Entertainment as the exclusive
representative for US inventory and forwards all inquiries directly to Track.
3.11
Publisher and Track owned property Clubplanet.com both agree to link to
each other’s URL on each and every one of their respective venue pages.
3.12 Publisher
agrees to abide by the exclusivity provisions of subparagraph 6.3 below, to the
extent applicable.
4. Content
and Advertising on the Site(s)
4.1
All Advertising served or placed on the Site(s) shall change only with
each new page view selected by an end-user, or at a refresh rate acceptable to,
and/or a redirect provided by, Track, in its sole and absolute discretion.
4.2
Publisher acknowledges and agrees that promotion of the Network and the
individual Site(s) associated therewith is critical to enhance and increase
usage by Advertisers and in connection therewith Publisher agrees that: (a)
Track shall have the right without Publisher’s prior consent to use the name of
Publisher and the Site(s) (and pages from the Site(s), e.g., screen shots) in
any media including Press Releases now or hereafter known for the purpose of
advertising and promoting the Network and for the purpose of preparing sales
materials summarizing Ad Impressions on the Site(s) and demographics of its
users and (b) Publisher shall, upon Track's reasonable request, supply Track
with Publisher's promotional materials so as to facilitate Track's sales
efforts to current or prospective Advertisers. From time to time, Track may
ask Publisher for copies of its marketing materials, in order to support the
Parties’ Advertising efforts. All such use shall be in compliance with all
applicable laws, rules and regulations.
4.3
Publisher understands and agrees that Track shall determine the rate
card (and any applicable discount) charged to Advertisers for delivery of
Advertising, and that Track shall have the right, in its sole discretion, to
provide Advertisers with a reasonable number of Bonus Ad Impressions.
5. Nondisclosure
and Proprietary Information
5.1
Publisher shall not disclose any of the terms and conditions of this
Agreement to any third party without the express prior written consent of
Track.
5.2
Publisher acknowledges that it shall not have, nor will it claim, any
right, title or interest in and to any Advertising (other than its own
Advertising), the Network, or any elements thereof (including, without
limitation, the grant of a license in or to the Network or any software, source
codes, modifications, updates and enhancements thereof or any other aspect
thereof), the name “Track”, or any derivatives thereof, or any other trademarks
and logos which are owned or controlled by Track and made available to
Publisher. Track understands and agrees that it shall not have, nor will it
claim, any right, title or interest in and to the Site(s), or any derivatives
thereof, or any other trademarks and logos which are owned or controlled by
Publisher and made available to Track through the Network or otherwise.
5.3
Any information relating to or disclosed in connection with this
Agreement by either Party (the "Disclosing Party") to the other Party
(the "Receiving Party"), which is or should be reasonably understood
to be confidential or proprietary to the Disclosing Party, including but not
limited to, the material terms of this Agreement, information about the service
and technical processes and formulas, source code, product designs, sales, cost
and other unpublished financial information, product and business plans,
projections, and marketing data shall be deemed "Confidential Information"
and shall not be used, disclosed or reproduced by the Receiving Party without
the Disclosing Party's prior written consent. "Confidential
Information" shall not include information: (a) already lawfully known to
or independently developed by the Receiving Party; (b) disclosed in published
materials; (c) generally known to the public or (d) required to be disclosed by
applicable law or any listing or trading agreement concerning its publicly‑traded
securities; provided, that such Disclosing Party shall use its best efforts to
notify the Receiving Party prior to making the disclosure.
6. Term
and Termination; Exclusivity
6.1
This Agreement shall have an initial term of 24 months from the
Effective Date (the “Initial Term”), and shall automatically, and without further
action by either Party, renew for consecutive six (6) month periods thereafter
(the “Renewal Term” and together with the Initial Term, the “Term”). Either
Party may terminate (the “Terminating Party”) the then effective Term of this
Agreement by giving the other written notice of termination in accordance with
Paragraph 9.12 below and not less than (60) days prior to the then scheduled
expiration of the Term, that the Terminating Party does not intend to enter
into the next Renewal Term. Receipt of such notice shall have the effect of
rendering this Agreement of no further force and effect, except as otherwise
set forth herein, at the expiration of the then current Term.
6.2
Track shall have the right to suspend or terminate the Agreement
immediately if Track, in its reasonable discretion, determines that the Site(s)
are offensive, obscene, indecent and/or is in violation of any applicable
federal, state, local or administrative rule, regulation or other legal
requirement.
6.3 Publisher
acknowledges that Track has been granted the exclusive third party right to
represent Publisher’s US inventory and to negotiate and sell approved advertisements
on the Web Site during the Term. Publisher agrees not to engage any additional third
party companies to provide Publisher with the services being provided by Track.
Track agrees that Publisher’s internal sales force has the right to negotiate
and sell advertisements on the Web Site during the term provided that they
coordinate and communicate with Track such that there is no overlap with media
buying agencies.
7
Representations and Warranties
7.1
Publisher: Publisher represents and warrants to Track that:
(a) Publisher owns, and at all times during the Term will own the Site(s); (b)
Publisher has the full power and authority to enter into and perform its
obligations under this Agreement and to grant the rights granted herein; (c)
Publisher owns and/or has the right to use all materials contained on the
Site(s), including without limitation all copyrights, trademarks and other
proprietary rights in and to such materials (including but not limited to sound
recording copyrights and copyrights in musical compositions); (d) Publisher has
secured the requisite permission to use any person's or entity’s name, voice,
likeness and performance as embodied in such materials, or any other element
contained therein; (e) the content of the Site(s) do not, and during the Term
will not: (i) infringe any copyright, trademark, patent or other right of any
person, firm or entity; (ii) constitute libel, invasion of privacy or obscene
material: (iii) violate any applicable legal requirement or (iv) contain any
recipe, formula or instruction harmful to any person or property and (f) the
services to be performed by it hereunder shall be performed in a professional
manner with the degree of skill and care that is required by current, good and
sound professional procedures and practices and in conformance with generally
accepted professional standards for the completion of such work prevailing at
the time. Publisher acknowledges that Track may provide its services hereunder
under the Track name or the name of any of Track’s affiliated names.
7.2
Track. Track represents and warrants to Publisher that: (a)
Track has the full power and authority to enter into and perform its
obligations under this Agreement; and (b) the services to be performed by it
hereunder shall be performed in a professional manner with the degree of skill
and care that is required by current, good, and sound professional procedures
and practices and in conformance with generally accepted professional standards
for the completion of such work prevailing at the time.
8. Indemnification;
Limitations
8.1
Each Party (the “Indemnitor”) shall indemnify and hold harmless the
other and its advertisers, suppliers, consultants, agents and affiliates, and
their respective direct and indirect equity holders, directors, officers,
agents and employees (the “Indemnified Party”), against and in respect of any
and all claims, suits, actions, proceedings (formal and informal),
investigations, judgments, deficiencies, losses, damages, settlements,
liabilities, and legal and other costs or expenses (including reasonable
attorneys’ fees and expenses) as and when incurred, arising out of or based
upon: (i) any act or omission or alleged act or alleged omission by the
Indemnitor in connection with the acceptance of, or the performance or
non-performance by it of, any of its duties under this Agreement; and (ii)
arising from the breach by the Indemnitor of any of its warranties,
representations or covenants contained in this Agreement.
8.2 The
Indemnified Party shall promptly notify the Indemnitor of any claim, demand,
action, or other proceeding for which the Indemnified Party intends to claim a
right of indemnification. The Indemnitor shall have the right to participate
in, and, to the extent so desired, to assume control of the defense thereof
with counsel selected by the Indemnitor; provided that the Indemnified Party
shall have the right to retain its own counsel, with reasonable fees and
expenses to be paid by the Indemnitor.
8.3 The indemnity obligations under this Agreement shall not apply to amounts paid in settlement of any loss, claim, damage, liability or action if such settlement is effected without the consent of the Indemnitor, which consent shall not be unreasonably withheld or delayed. The failure to deliver notice to the Indemnitor within a reasonable time after the commencement of any such action, if prejudicial to Indemnitor's ability to defend such action, shall relieve the Indemnitor of any liability to the Indemnified Party under this Paragraph 8. The Indemnified Party, its employees, agents, officers, directors and partners shall cooperate fully with the Indemnitor and its legal representatives in the investigation of any action, claim or liability covered by an indemnification from the Indemnitor.
8.4 EXCEPT AS
EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND,
WHETHER EXPRESS OR IMPLIED INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE OF THE NETWORK OR THE SITE(S) INCLUDING,
WITHOUT LIMITATION, THE TYPE OF ADVERTISING OR AMOUNT OF ADVERTISING WHICH WILL
BE DELIVERED TO PAGES THROUGH THE NETWORK. EXCEPT AS EXPRESSLY PROVIDED ABOVE,
TRACK SHALL NOT BE LIABLE FOR ANY MONIES DUE FROM ADVERTISERS WHOSE ADVERTISING
APPEARS ON THE NETWORK, NOR THE CONTENT OF ANY ADVERTISING, NOR SHALL TRACK BE
LIABLE FOR ANY LOSS, COST, DAMAGE OR EXPENSE (INCLUDING REASONABLE ATTORNEYS’
FEES) INCURRED BY PUBLISHER IN CONNECTION WITH PUBLISHER'S PARTICIPATION IN THE
NETWORK. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY TECHNICAL
MALFUNCTION, COMPUTER ERROR OR LOSS OF DATA OR OTHER INJURY, DAMAGE, OR
DISRUPTION TO PUBLISHER'S PAGES OR THE SITE(S) OR THE NETWORK. IN NO EVENT
SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL,
CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR IN RELATION TO
THIS AGREEMENT EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES, EXCEPT TO THE EXTENT THAT SUCH DAMAGES ARE CAUSED BY THE INFRINGEMENT
UPON OR CONFLICT WITH THE INTELLECTUAL PROPERTY RIGHTS OF THE PARTIES.
FURTHERMORE, EACH PARTY’S AGGREGATE LIABILITY FOR ANY REASON AND UPON ANY CAUSE
OF ACTION IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL
AGGREGATE ADVERTISING REVENUE ACCRUED UNDER THIS AGREEMENT. THIS LIMITATION
APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE INCLUDING, WITHOUT LIMITATION,
BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY,
MISREPRESENTATIONS, OR ANY OTHER LEGAL OR EQUITABLE THEORY.
9. Miscellaneous
9.1
Cooperation. The Parties acknowledge and agree that successful
fulfillment of the Network affiliation contemplated herein shall require the
full and mutual good faith cooperation of each Party
9.2
Right of First Refusal
Notice. If at any time Publisher proposes to sell, license, lease or
otherwise transfer all or any portion of its interest in any of the Publisher
Websites, then Publisher shall promptly give Track Entertainment written notice
of Publisher’s intention to sell (the “Notice”). The Notice
shall include (i) a description of the website’s content, (ii) the
name(s) and address(es) of the prospective purchaser(s), (iii) the proposed
consideration and (iv) the material terms and conditions upon which the
proposed sale is to be made. The Notice shall certify that Publisher has
received a firm offer from the prospective purchaser(s) and in good faith
believes a binding agreement for the sale is obtainable on the terms set forth
in the Notice. The Notice shall also include a copy of any written proposal,
term sheet or letter of intent or other agreement relating to the proposed
sale.
Right of First Refusal. Track Entertainment shall have an option for
a period of 15 days from receipt of the Notice to elect to purchase Publisher’s
interest in such website(s) at the same price and subject to the same material
terms and conditions as described in the Notice. Track Entertainment may exercise
such purchase option by notifying Publisher in writing before expiration of the
15-day period. In this event, Publisher agrees to enter into an agreement on
terms substantially similar to the terms set forth in the Notice.
9.3
Assignment. Neither Party to this Agreement shall sell, transfer
or assign this Agreement or the rights or obligations hereunder, other than to
a parent or wholly-owned subsidiary, without the prior written consent of the
other Party. Notwithstanding the foregoing, each Party shall have the right
hereunder to transfer or assign this Agreement to a third party
successor-in-interest, which for the purposes of this Paragraph shall mean any
third party which acquires all or substantially all of the assets or
outstanding stock of such Party, whether by sale, consolidation, merger or
otherwise, provided no such transfer or assignment shall relieve such Party of
its obligations hereunder. Any act in derogation of the foregoing shall be
null and void.
9.4
Modification. No alteration, amendment, waiver, transferal, or
modification of the terms of this Agreement shall be valid or effective unless
in writing and signed by the Parties; it being understood that, notwithstanding
the foregoing, Track shall have the right to modify or make additions to the
placement algorithm governing Advertising delivery and the HTML or other
language modifications, from time to time upon reasonable prior notice to
Publisher.
9.5
Choice of Law. This Agreement will be construed and enforced in
accordance with and exclusively governed by the laws of the State of New York, without reference to principles of conflicts of law. Each of the parties
consents to the exclusive jurisdiction of the State and Federal courts located
in New York County, New York in connection with any dispute arising under this
Agreement and hereby waives, to the maximum extent permitted by law, any
objection, including any objection based on forum non conveniens,
to the bringing of any such proceeding in such jurisdictions.
9.6
Notices. Any notice or other communication required or permitted
to be given hereunder by either Party to the other shall be given in writing
and deemed to have been duly given when delivered by: (a) personal delivery;
(b) by a nationally recognized overnight delivery company; or (c) United States
first class registered or certified mail, postage prepaid, return receipt
requested, upon receipt of such return receipt, in each case, addressed to the
particular Party at its address first listed above.
9.7
No Joint Venture. Nothing in this Agreement shall be construed
to establish a joint venture, agency, employment or partnership relationship
between the Parties.
9.8
Force Majeure. Neither Party shall be held liable or responsible
to the other nor be deemed to have defaulted under or breached this Agreement
for failure or delay in fulfilling or performing any term of this Agreement
when such failure or delay is caused by or results from any cause beyond the
reasonable control of the affected Party, including but not limited to fire, floods,
embargoes, war, acts of war (whether war is declared or not), insurrections,
riots, civil commotion, strikes, lockouts or other labor disturbances, acts of
God or acts, omissions or delays in acting by any governmental authority or the
other Party; provided, that the Party so affected shall use reasonable
commercial efforts to avoid or remove such causes of nonperformance, and shall
continue performance hereunder with reasonable dispatch whenever such causes
are removed. Each Party shall provide the other with prompt written notice of
any delay or failure to perform that so occurs by reason of such a force
majeure. The Parties shall mutually seek a resolution of the delay or the
failure to perform as noted above.
9.8 Entire
Agreement. This Agreement contains the entire understanding between the
Parties with respect to its subject matter, and supersedes all other prior and
contemporary agreements, understandings, and commitments (whether oral or
written) between the Parties with respect thereto.
9.9 Execution. This
Agreement has been sent to Publisher via email. Publisher acknowledges that it
has been given the opportunity to "agree" with the terms and
conditions or request modifications. If the Publisher agrees with the
Agreement, then once confirmed below, Publisher shall receive a confirmatory
email, and the Agreement shall be deemed fully executed by Publisher and Track,
although either party shall be entitled to request a confirming manually
executed copy of the Agreement subsequently. If the Publisher wishes to submit
modifications to this Agreement, then those terms shall be submitted to Track
for review. Once said modifications have been agreed upon by both parties, a
confirmatory email shall be sent to both Publisher and Agent acknowledging
acceptance of the Agreement by both parties.
Traffic
Assignment Request for comScore Networks Reporting
I, [name], [title] of Publisher,
certify that Publisher
a) is the majority owner of the URLs listed below
b) enjoys a legitimate business relationship with Track Entertainment justifying the aggregation of this traffic, and
c) requests assignment of the traffic to these URLs from Publisher to Track Entertainment in the comScore Networks syndicated audience measurement reports.
In
requesting this assignment, I understand that Publisher will not receive credit
for traffic to these URLs in the syndicated audience reports for those entities
where Track Entertainment elects to include these URLs. These URLs may not be assigned to any other
company. In the event that comScore
Networks receives multiple requests for assignment of the same URL, comScore
will review and honor the request most recently received.
I understand that this request is
subject to review by comScore Networks to determine that the assignment of
traffic is consistent with comScore Networks reporting rules. comScore Networks retains the right in its sole
discretion to refuse the requested assignment if such assignment would in fact
be inconsistent with comScore Networks reporting rules. If necessary, comScore Networks may require
additional documentation to verify ownership of the URLs before granting this
request. For example, if Publisher is
not the named registrant of the URLs listed below, Publisher must provide
documentation demonstrating that the registrant of those URLs is (1) owned or
(2) employed by Publisher
I understand that acceptance of this letter by comScore
Networks, Inc. imposes no legal liability whatsoever on comScore Networks, Inc.
for damages, whether actual, incidental or consequential, relating to the
maintenance or reporting of the attached URLs.
I understand that Publisher is fully responsible for timely notification
to comScore Networks, Inc. of any updates to the list below, including, but not
limited to, changes in ownership of any of those URLs.
Publisher shall indemnify and hold harmless comScore
Networks from and against any claims, liabilities, costs and expenses of any
kind (including reasonable attorney’s fees and expenses) arising out of any
allegation of improper assignment of the URLs pursuant to this letter.
NetView Traffic Assignment Agreement
Request for the Assignment of Syndicated Report Traffic
I, hereafter Assignor, would like to transfer Assignor traffic to Track
Entertainment, hereafter Assignee, for the purpose of NetRatings, Inc.
syndicated audience measurement reports. By requesting this assignment, I
understand that Assignor will not receive credit for traffic for these domains
and URLs in the NetRatings, Inc. syndicated audience reports but will be
included in the aggregation of traffic by the Assignee. These domains may only
be assigned to one company and may not be assigned to any other company. In the
event that NetRatings, Inc. receives multiple requests for assignment of the
same domain or URL, NetRatings, Inc. will honor the request most recently
received.
I certify that Assignor is the majority owner of the domains and URLs
listed below and enjoys a legitimate business relationship with Assignee
justifying the aggregation of this traffic in the NetRatings, Inc. syndicated
audience measurement reports.
I understand that this request is subject to review by NetRatings, Inc.
to determine that the assignment of traffic is consistent with NetRatings, Inc.
reporting rules. NetRatings, Inc. retains the right in its sole discretion to
refuse the requested assignment if such assignment would in fact be
inconsistent with NetRatings, Inc. reporting rules. If necessary, NetRatings,
Inc. may require additional documentation to verify ownership of the domains
and URLs before granting this request. For example, if Assignor is not the
named registrant of the domains and URLs listed below, Assignor must provide
documentation demonstrating that the registrant of those domains and URLs is
(1) owned or (2) employed by Assignor.
I understand that in the event that a URL that is not listed on the
attached list displays the exact same Web page/site as a URL that is listed on
the attached list, NetRatings, Inc. shall be entitled to count/report the
traffic from such URL as if such URL was included on the list. (For example:
(i) siteX.com is included on the attached list but siteX.net is not; (ii)
siteX.net displays the exact same Web page as siteX.com; (iii) siteX.com and
siteX.net shall be treated the same by NetRatings, Inc.)
I understand that acceptance of this letter by NetRatings, Inc. imposes
no legal liability whatsoever on NetRatings, Inc. for damages, whether actual,
incidental or consequential, relating to the maintenance or reporting of the
attached domains and URLs.
I understand that Assignor is fully responsible for timely notification
to NetRatings, Inc. of any updates to the list below, including, but not
limited to, changes in ownership of any of those domains and URLs. I further
understand that NetRatings, Inc. may terminate this assignment at any time in
its sole discretion.
Assignor shall indemnify and hold harmless NetRatings, Inc. from and
against any claims, liabilities, costs and expenses of any kind (including
reasonable attorney’s fees and expenses) arising out of any allegation of
improper assignment of the domains and URLs pursuant to this letter.
This assignment request shall expire on the third anniversary of the
date of this letter, unless an earlier expiration date is set forth in this
letter. Upon termination, the traffic
for the domains and URLs being assigned hereunder shall be credited to the
Assignor or as otherwise consistent with NetRatings, Inc.’s reporting rules.