These She Knows Technology Terms and Conditions (the “Terms and Conditions”) govern the License Agreement between Company and Publisher. In the event of a conflict between the License Agreement and the Terms and Conditions, the Terms and Conditions control. Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in the License Agreement.
1. Defined Terms.
1.1. “Advertiser” means any Person engaged in creating, placing, or utilizing Advertisements, including but not limited to, any direct advertiser, advertising agency or marketing representative.
1.2. “Advertisement Impressions” means the total number of times an Advertisement is capable of being served to, and received by, a unique visitor to the Property as measured by Company in accordance with its then-current standard practice.
1.3. “Advertisements” means any and all text, in-text, graphical, audio, video or other promotional activity that appear within or around the Technology.
1.5. “Affiliate” or “Affiliates” means any entity controlled by, controlling or under common control with Publisher.
1.6. “Bandwidth and Storage Fees” shall mean all bandwidth and storage fees, costs and expenses related to the operation of the Technology or the creation, serving and trafficking of Advertisements on, through, or around the Technology.
1.7. “Person” means an individual, corporation, partnership, limited partnership, limited liability company, advertising agency, syndicate, person, trust, association or other entity.
1.8. “Objectionable Content” means content that is pornographic, illegal, racist, libelous, defamatory, contrary to public policy, or otherwise unlawful; content that contains hate speech, “spam,” malicious code, adware, spyware or drive-by download applications; and/or content promoting pornography, the use of illegal substances, illegal activity, racism, hate, “spam,” mail fraud, pyramid schemes, or investment opportunities or advice not permitted by law.
2. Publisher Obligations. The following obligations shall exist during the Term and shall not survive the termination of the Term:
2.1. Non-Alteration of Notices. Neither Publisher, nor any user of the Property, may remove or alter Company’s copyright notices, or other means of identification or disclaimers, as they appear in the Technology and Content.
2.2. Placement of the Content and Technology. Publisher shall place the Technology within the top 800 pixels of the Property (commonly referred to as “above the fold”) at all times throughout the Term, unless Company provides prior written consent to the Technology’s removal or to a change in location of the Technology on the Property. Publisher shall place the Technology on the Property within fourteen (14) days of the Effective Date (the “Setup Period”) and in accordance with any instructions reasonably provided by Company. For each additional day beyond the last date of the Setup Period that the Technology is not placed on the Property, the Term shall automatically be extended by one day.
2.3. Quality Assurance. Publisher shall design, operate and maintain the Property in accordance with reasonable industry standards. To this end, Publisher will use its best efforts to ensure that the Property remains available and accessible to the public at all times, will invest in such hardware and software reasonably necessary to meet demand and to ensure reasonable response times and, except in emergency situations, minimize “down time” during periods which it may be reasonably anticipated that there will be demand to view or utilize the Property. Publisher acknowledges that it is solely responsible for the content on the Property and that Company has no responsibility to review the content of the Property. The Property shall not contain, or contain links to, Objectionable Content.
3. Advertising Rates. In the event Company serves Advertisements through the Technology as agreed to by the parties and set forth in the License Agreement, unless otherwise noted in the License Agreement, Company shall determine minimum rates at which Company can sell Advertisements through the Technology in Company’s sole discretion.
4. Billing and Collection. Any Publisher’s Net Revenue, if applicable, shall be paid in U.S. dollars, excluding all applicable sales, use, and other taxes, within ninety (90) business days of the last day of the month in which the Advertisement Impressions occurred, regardless of whether the associated Advertising Revenue has been collected by Company from the Advertiser, provided, however that Company shall have the right to refrain from paying for, and the ability to charge back Publisher for any monies already paid on account of, Advertisements to the extent the Advertiser responsible for payment on such Advertisement is insolvent or reasonably unlikely to make payment. If applicable, Company shall deduct from any Publisher’s Net Revenue all Bandwidth and Storage Fees incurred on account of Publisher’s use of the Technology, and reserves the right to invoice Publisher for any such amounts in excess of Publisher’s Net Revenue.
5. Proprietary Rights. The Content, and all rights, title and interest therein, are and shall remain Company’s exclusive property. Except as expressly provided in this Agreement, Publisher shall have no rights to the Content.
6. Content. If Publisher in good faith believes that Content contains Objectionable Content, Publisher’s sole recourse shall be to advise Company and Company and Publisher shall cooperate to remove the Objectionable Content.
7. Use of Property. Publisher hereby represents, warrants and covenants that (i) use of the Property by Company or any of Company’s Advertisers will not infringe upon any third party intellectual property rights, including United States or foreign trademarks, patents, copyrights, rights of publicity, moral rights, music performance or other music-related rights, or any other third-party right, (ii) the Property does not and will not contain any content which violates any applicable law or regulation and (iii) it has all necessary rights and authority to enter into this Agreement and place the Technology on the Property.
9. Indemnity. Publisher will defend, indemnify and hold harmless Company and its officers, directors, agents and employees (collectively “Representatives”) and its Affiliates and their Representatives from and against any and all claims, liability, losses, costs and expenses (including reasonable attorney’s fees) incurred by Company, an Affiliate or their respective Representatives arising from Publisher’s, an Affiliate’s or their respective Representatives’ breach of this Agreement.
10. Termination. Each party shall have the right to terminate this Agreement if the other party materially breaches any of the terms and provisions of this Agreement; provided that the party in breach must first be notified in writing by the other party specifying the particular breach and given ten (10) days within which to cure the breach. If the party in breach fails to cure the breach within ten (10) days after receiving such written notice, the other party shall have the right to terminate this Agreement immediately. In the event of a breach by Publisher, Company shall have the rights to withhold any monies owed or payable to Publisher and to offset same against any damages arising from said breach. Notwithstanding anything in this Agreement to the contrary, Company may suspend or terminate the License at any time and for any reason, which, in such event, immediately shall terminate Publisher’s right to use, display or access the Technology.
11. Covenants, Representations & Warranties Of The Parties. Each party agrees that the terms of this Agreement are confidential and that it will not disclose the terms of this Agreement to any third party (other than counsel, its agents, auditors, potential investors and/or lenders) without the prior written consent of the other party.
Company DOES NOT MAKE ANY REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE TECHNOLOGY, ANY CONTENT AND/OR ANY ADVERTISEMENTS AND Company SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY LIABILITY THAT MAY ARISE OUT OF THE USE OR DISPLAY OF THE TECHNOLOGY, ANY CONTENT AND/OR ANY ADVERTISEMENTS (INCLUDING, BUT NOT LIMITED TO, ANY LIABILITY FOR COPYRIGHT VIOLATION, TRADEMARK VIOLATION OR DEFAMATION). WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE EXISTENCE OF CONTENT IN THE TECHNOLOGY CONTENT MANAGEMENT SYSTEM DOES NOT REPRESENT ACKNOWLEDGEMENT OR CONSENT BY Company THAT THE USE OF SUCH CONTENT ON THE PROPERTY IS AUTHORIZED.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, COMPANY EXPRESSLY DISCLAIMS (I) ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND (II) ANY WARRANTY REGARDING THE TECHNOLOGY, INCLUDING, BUT NOT LIMITED TO, ITS CORRECTNESS, QUANTITY, QUALITY, ACCURACY, COMPLETENESS, RELIABILITY, PERFORMANCE, TIMELINESS OR CONTINUED AVAILABILITY, AND (III) ANY WARRANTY CONCERNING THE QUANTITY, QUALITY AND/OR VOLUME OF ADVERTISEMENTS DELIVERED THROUGH THE TECHNOLOGY, IF ANY, AND/OR THE AMOUNT OF ADVERTISING REVENUE AND/OR PUBLISHER’S NET REVENUE, IF ANY, TO BE GENERATED UNDER THIS AGREEMENT. EXCEPT AS PROVIDED IN THIS AGREEMENT WITH RESPECT TO INDEMNIFICATION, NEITHER PARTY SHALL BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR INDIRECT DAMAGES.
12. Miscellaneous Terms & Conditions. Each party shall have the right to refer to and promote its business relationship with the other party in a corporate press release or otherwise. No waiver of any provision hereof shall be effective unless in writing and signed by or on behalf of the party to be charged therewith. In the event a provision contained herein is held to be unlawful or unenforceable, such provision shall be severable from the remaining provisions of this Agreement, which shall remain in full force and effect. This Agreement may be assigned by either party without the consent of the other party and shall be binding on each party’s respective successors and assigns. The obligations under this agreement shall not terminate in the event of a sale of the Property or change of control of the Publisher. This Agreement shall be governed by, and interpreted and enforced in accordance with, the laws of the State of California, without regard to conflicts of law principles that would require the application of any other law, and the sole and exclusive venue for any dispute shall be Los Angeles, California. This Agreement (including the License Agreement) contains the terms of the entire agreement among the parties with respect to the subject matter hereof and supersedes any and all prior agreements, commitments, understandings, discussions, negotiations or arrangements of any nature relating thereto (including, but not limited to, any email communications between the parties). This Agreement may be executed by email acceptance or by signature in one or more counterparts. Any signed copy of this Agreement, or copy or counterpart thereof, delivered by e-mail or portable document format (.pdf), shall for all purposes be treated as if it were delivered containing an original manual signature and shall be binding upon such party in the same manner as though an originally signed copy had been delivered. Each party to this Agreement shall execute and deliver all instruments and documents and take all actions as may be reasonably required or appropriate to carry out the purposes of this Agreement. The parties acknowledge that neither Publisher, nor any agent, employee, officer, representative or independent contractor of or retained by Publisher, is or may be deemed to be an employee, partner, joint venturer or agent of or with Company by reason of this Agreement. Each party to this Agreement has reviewed and revised this Agreement and has had the opportunity to have such party’s legal counsel review and revise this Agreement. The rule of construction that ambiguities are to be resolved against the drafting party or in favor of the party receiving a particular benefit under an agreement may not be employed in the interpretation of this Agreement or any amendment to this Agreement. Each party authorizes and accepts service of process sufficient for personal jurisdiction in any action against it as contemplated by this Section 12 by registered or certified mail, return receipt requested, postage prepaid, to its address for the giving of notices as provided in the License Agreement.