Last revised January 2, 2008
Vintage Media Direct AGENCY ADVERTISING AGREEMENT
By signing a Vintage Media Direct (dba YourDegreeCenter.com and/or YourCollegePlan.com) Insertion Order, Agency agrees to be bound by the terms and conditions of “Agreement” and the terms and conditions of any Insertion Order executed by Agency.
Vintage Media Direct may, from time to time, place lead generation advertising, banner advertising, coupons, emails, promotional material(s) or perform other services on Agency and/or its Advertiser’s behalves (collectively “Advertising”) on any Vintage Media Direct owned web sites, in any of Vintage Media Direct’s advertising networks, in Vintage Media Direct’s promotional vehicles (which may include lead generation or display advertisements), in Vintage Media Direct emails or in Vintage Media Direct newsletters (collectively, the “Web Site”). Agency shall request such Advertising by submitting an insertion order (or similar request for services) to Vintage Media Direct (an “Insertion Order”). Each Insertion Order shall be considered accepted by Vintage Media Direct when signed by an authorized representative of Vintage Media Direct. If accepted by Vintage Media Direct, an Insertion Order shall be subject to and be deemed to incorporate all the terms and conditions of this Agreement, and such Insertion Order shall be incorporated herein by reference.
2. INSERTION ORDER.
Unless specified in writing to the contrary, each Insertion Order shall constitute a separate, distinct, and independent work assignment, and shall have no effect upon other Insertion Orders. In the event that the provisions of any Insertion Order and the terms of this Agreement shall conflict, the provisions of this Agreement shall control. Subject to the preceding sentence, no conditions, printed or otherwise, appearing on any Insertion Orders or instructions, submitted to Vintage Media Direct, will be binding upon Vintage Media Direct unless signed by an authorized representative of Vintage Media Direct.
The term of this Agreement shall commence upon the execution hereof and shall continue until either party terminates this Agreement as provided herein. Either party may terminate this Agreement, without cause, by delivery of two (s) business days advance written notice of such termination to the other party. Notwithstanding the foregoing, termination of this Agreement shall not affect any Insertion Order which had been received and accepted by Vintage Media Direct prior to the date of termination, and each party shall continue to perform in accordance with the provisions of such Insertion Order(s) and this Agreement until the expiration of such Insertion Orders.
(a) All monies owing by Agency under this Agreement and an Insertion Order are due within thirty (30) days of the invoice date. Agency hereby agrees to pay a finance charge equal to the lesser of 1.5% per calendar month (18% per year) or the maximum amount permitted by law on all monies not paid when due. All payments will be paid in United States’ dollars.
(b) Vintage Media Direct agrees to hold Agency liable for payments solely to the extent proceeds have cleared from Advertiser to Agency for Advertising placed in accordance with the relevant Insertion Order. For sums not cleared to Agency, Vintage Media Direct agrees to hold Advertiser liable. Agency agrees to make every reasonable effort to collect and clear payment from Advertiser on a timely basis.
(c) With respect to any performance related payments, Vintage Media Direct shall have the right, at its expense, upon five (5) business days written notice and during Agency’s and/or Advertiser’s normal business hours, to inspect and audit the books and records of Agency and/or Advertiser for the sole purpose of verifying any payments due to Vintage Media Direct. In addition to Vintage Media Direct’s other remedies, in the event any shortfall in payment to Vintage Media Direct is found which exceeds 5% of the total due to Vintage Media Direct for the period(s) audited, Agency shall reimburse Vintage Media Direct for all reasonable costs of the audit, including without limitation, accountant fees and attorney fees.
(c) Agency agrees that its delay or failure to deliver information or content to Vintage Media Direct for posting or conversion to Advertising on the Web Site shall not relieve Agency of its payment obligations hereunder.
(d) Agency acknowledges that Vintage Media Direct may grant “Discounts” for certain Advertising based upon the number of days the Advertising is to appear. If the Insertion Order contains a discount, then upon written notice from Agency to Vintage Media Direct of its desire to terminate such Advertising prior to the End Date, Agency agrees to pay Vintage Media Direct, within 30 days of such notice, as liquidated damages, and not as a penalty for the early termination of such service, an amount equal to:
(i) the fee for such services at the non-discounted rates set forth in the Insertion Order, less
(ii) amounts previously paid by Agency to Vintage Media Direct for such Advertising.
Agency shall provide to Vintage Media Direct all design, content, text, graphics, images or other relevant information (the “Advertising Creative”) necessary to perform the services contemplated by this Agreement. Vintage Media Direct shall post or send such Advertising Creative in accordance with this Agreement. Vintage Media Direct will determine the specific placement of Advertising, which may vary across the Web Site. Placement of Advertising on the Web Site and ranking of the relevant Advertising shall be determined by a combination of the following factors:
(i) the rate paid by Agency per acquisition for the selected product and
(ii) the click volume the Advertising has received in comparison to the Advertising of other advertisers. Due to advertisers continuously submitting Advertising for the Web Site at different rates, the placement and ranking of Advertising is subject to fluctuation. Agency acknowledges and agrees that Vintage Media Direct does not guarantee that Advertising will be displayed on the Web Site, and that Vintage Media Direct disclaims any warranty regarding the location and/or prominence of any Advertising on the Web Sites. Any Advertising Creative submitted is subject to the prior approval of Vintage Media Direct, is subject to Vintage Media Direct’s advertising standards from time to time in effect, and must be supplied to Vintage Media Direct within a reasonable number of days in advance of the Start Date as required by Vintage Media Direct. Vintage Media Direct reserves the right at all times to refuse, reject or withdraw, without prior notice, any Advertising and/or Advertising Creative which Vintage Media Direct deems to be improper for any reason whatsoever, as determined by Vintage Media Direct, in its sole discretion without liability or obligation to Agency and/or Advertiser.
6. ADVERTISING CONTENT; PRIVACY.
Vintage Media Direct shall not be responsible for the content of any Advertising or any Advertising Creative, including but not limited to, any claims, errors or omissions in materials provided to Vintage Media Direct. Agency represents and warrants to Vintage Media Direct that
(a) it is authorized to make available to Vintage Media Direct the Advertising Creative,
(b) the Advertising and the Advertising Creative do not and will not violate any law or regulation or infringe upon any copyright, trademark or any other right of any party,
(c) the Advertising and the Advertising Creative do not and will not violate any applicable laws, licenses, rules or regulations, including, without limitation, rights of publicity and laws of publication.
7. INTELLECTUAL PROPERTY.
7.1 License by Agency and/or Advertiser. Agency and/or Advertiser hereby grants to Vintage Media Direct a nonexclusive, nontransferable, worldwide, royalty-free license during the term of this Agreement, to use, copy, reproduce, electronically distribute, publicly display, transmit, and otherwise publicly use Advertiser’s trademarks, service marks, logos, brands and trade names on the Web Site and within the Advertising and all related services thereto, to the extent necessary to fulfill its obligations hereunder. As between the parties, Vintage Media Direct acknowledges that Agency and/or Advertiser owns all right, title and interest in and to Advertiser’s trademarks, service marks, logos, brands and trade names.
7.2 License by Vintage Media Direct. Vintage Media Direct hereby grants to Agency and/or Advertiser a nonexclusive, nontransferable, worldwide, royalty-free license during the term of this Agreement, (a) to use, copy, reproduce, publicly display, transmit and otherwise publicly use Vintage Media Direct trademarks,
service marks, logos, brands and trade names, and (b) to access Vintage Media Direct ADVERTISING AGREEMENT and use the Web Site, to the extent necessary to fulfill its obligations hereunder. As between the parties, Agency and Advertiser acknowledge that Vintage Media Direct owns and shall at all times retain all right, title and interest in and to (a) Vintage Media Direct trademarks, service marks, logos, brands and trade names, and (b) all intellectual property rights in, to, embedded in or associated with the Web Site.
7.3 Use / Ownership. Each party acknowledges and agrees that it does not have any claim, right, title or interest in or to the other party’s content, trademarks and/or other intellectual property, except as explicitly provided herein. Further, each party acknowledges and agrees that it shall use the other party’s content, trademarks and other intellectual property solely as expressly permitted under this Agreement and in a manner consistent with the terms and conditions of this Agreement. Nothing contained in this Agreement will give either party any right, title or interest in or to any trademarks, service marks, logos, brands, trade names or other intellectual property of the other party (including but not limited to the Web Site), except for the limited rights expressly granted hereunder. Neither party shall exceed the scope of the licenses granted hereunder. Each party acknowledges and agrees that the other party has complete authority to control the use of its content, trademarks and/or other intellectual property. Any use by a party of the other party’s names, trademarks, service marks, design marks, symbols or other intellectual property, must be approved by such party in writing.
7.4 Effect of Termination. Upon termination or expiration of this Agreement, all rights and licenses granted by Agency and/or Advertiser and Vintage Media Direct under this Agreement to the other party shall immediately revert to and be fully vested in Agency, Advertiser and Vintage Media Direct, as applicable. Each party shall cease using the other party’s intellectual property, and shall immediately take steps to return or destroy all originals and copies thereof to the respective intellectual property owner.
Agency hereby agrees to indemnify and hold harmless Vintage Media Direct against all claims, actions, suits, proceedings, fines, damages, costs (including without limitation settlement costs) losses and expenses, including reasonable attorneys’ fees and costs (collectively, the "Damages") which Vintage Media Direct may suffer as a result of
(a) any alleged or actual infringement, misappropriation or violation of any patent, copyright, trademark, trade secret or other proprietary right by or in connection with the content or publication of any of the Advertising and the Advertising Creative,
(b) the content of or publication of such Advertising and Advertising Creative (except to the extent that the damages arose from modifications which were made by Vintage Media Direct without the consent of Agency and/or Advertiser),
(c) any claims of defamation, obscenity, indecency, violation of statutory or common law, privacy or publicity rights or any other third party claims arising out of or in connection with the Advertising and the Advertising Creative,
(d) any allegations relating to Agency’s and/or Advertiser’s compliance with any laws, Agency’s or Advertiser’s business, practices, or customer relationships (whether or not obtained pursuant to this Agreement), or
(e) any breach of Agency’s representations or warranties contained in this Agreement.
9. REPRESENTATIONS AND WARRANTIES; INSURANCE.
Agency represents and warrants that
(a) it has the authority as agent to Advertiser to, and hereby does, bind Advertiser to this Agreement and each Insertion Order,
(b) the execution of this Agreement will not violate any duty or breach any contract or agreement, oral or written, between Agency and any third party, including but not limited to any Advertiser, and
(c) that Agency and Advertiser each currently maintain general liability insurance including advertising liability coverage) in an amount not less than $1,000,000 per occurrence, and shall upon demand by Vintage Media Direct provide a certificate evidencing such coverage to Vintage Media Direct.
10. DISCLAIMER AND LIMITATION OF LIABILITY.
Vintage Media Direct shall not be liable for
(a) any loss or damage whatsoever suffered by Agency and/or Advertiser as a result of or arising from any Advertising (including but not limited to, the failure of any Advertising, at any time, to appear on, be delivered by, or be accessible from the Web Site), or
(b) the unauthorized use of the Advertising by third parties (including, without limitation, unauthorized reproduction and/or tampering by “hackers”). Any unintentional or inadvertent failure by Vintage Media Direct to place Advertising will invalidate the Insertion Order with respect to such Advertising (including Agency’s payment obligations with respect to such Advertising), but will not constitute a breach of contract or otherwise subject Vintage Media Direct to any liability whatsoever; the terms of this Agreement shall remain in effect. Neither party shall be liable for any delay or failure in performance of any part of this Agreement, other than for any delay or failure to pay money owed hereunder, by reason of acts of God, fire, strikes, shortages of labor or materials, present or future governmental laws, acts of war or terrorism, or for any other reason beyond the party’s reasonable control (including the failure of third party service providers). The term of this Agreement shall be extended for a period equal to the period of the delay or failure in performance. Such extension shall be the exclusive remedy in such event. Notwithstanding anything to the contrary in this Agreement, Vintage Media Direct’s liability for any and all damages suffered by Agency and/or its Advertisers shall in no event exceed the total amount paid by Agency and/or its Advertisers to Vintage Media Direct under the relevant Insertion Order.
11. ACKNOWLEDGEMENT OF NO WARRANTY.
Vintage Media Direct DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED (INCLUDING ANY WARRANTY REGARDING MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE) NOT SPECIFIED HEREIN RESPECTING THIS AGREEMENT OR THE SERVICES TO BE PROVIDED HEREUNDER. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT (OR ANY OTHER AGREEMENT BETWEEN THE PARTIES), IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES, OR FOR ANY LOST PROFITS OR REVENUES, HARM TO BUSINESS, OR LOST SAVINGS OR DATA OF ANY KIND OR NATURE WHATSOEVER, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, WARRANTY, STRICT LIABILITY, OR TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OF ANY KIND, WHETHER ACTIVE OR PASSIVE) EVEN IF SUCH PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH LOSS.
Any marked confidential information and proprietary data provided by one party shall be deemed “Confidential Information” of the disclosing party. Confidential Information shall also include information provided by one party, which under the circumstances surrounding the disclosure would be reasonably deemed confidential or proprietary. Confidential Information shall not be released by the receiving party to anyone except an employee, or agent who has a need to know same, and who is bound by confidentiality obligations. Neither party will use any portion of Confidential Information provided by the other party hereunder for any purpose other than those provided for under this Agreement. Notwithstanding anything contained herein to the contrary, the term "Confidential Information" shall not include information which:
(i) was previously known to the receiving party;
(ii) was or becomes generally available to the public through no fault of the receiving party;
(iii) was rightfully in receiving party's possession free of any obligation of confidence at, or subsequent to, the time it was communicated to receiving party by the disclosing party;
(iv) was developed by employees or agents of receiving party independently of and without reference to any information communicated to receiving party by disclosing party; or Vintage Media Direct AGENCY ADVERTISING AGREEMENT
(v) was communicated by disclosing party to an unaffiliated third party free of any obligation or confidence. Notwithstanding the foregoing, either party may disclose Confidential Information in response to a valid order by a court or other governmental body, as otherwise required by law, as required by the rules of any applicable securities exchange or as necessary to establish the rights of either party under this Agreement; provided, however, that both parties will stipulate to any orders necessary to protect said information from public disclosure
Any leads shall be transmitted to Agency and/or its Advertiser on either a daily or a weekly basis, as selected by Agency and/or its Advertiser. Agency may designate in writing its preferred data format for the delivery of data from among formats available from Vintage Media Direct. If Agency and/or Advertiser request a data format other than the standard data format available from Vintage Media Direct, Agency shall be charged the set up fee specified on the Insertion Order. Vintage Media Direct will provide either:
(i) Web based, password protected Real-time reporting, and/or
(ii) manual reporting at a frequency to be determined by Vintage Media Direct. Vintage Media Direct and Agency agree that Vintage Media Direct shall, for billing purposes, calculate the number of Member click throughs and actions that occur on or through Vintage Media Direct’s Web Site.
(a) All Leads are delivered “as is” unless otherwise specified on an Insertion Order. The fee is payable for the generation of each Lead as reported by Vintage Media Direct, and is not in any manner conditioned on any Member taking any action on the Agency’s web site. Except as otherwise expressly set forth on the applicable Insertion Order, there shall be no cap on the number of Leads which may be directed to Agency and/or its Agency by Vintage Media Direct, and for which Vintage Media Direct will be entitled to payment. If Agency and Vintage Media Direct have agreed in the applicable Insertion Order to a cap (“Cap”) on the number of Leads to be generated by Vintage Media Direct during the term of an Insertion Order, then in the event that the Cap is reached, Vintage Media Direct’s obligations to post or send the Advertising immediately shall terminate, Agency shall not be liable for additional Leads in excess of the Cap, and Vintage Media Direct may thereafter remove the Advertising from the Web Site without further notice to Agency.
15. GOVERNING LAW/SEVERABILITY.
This Agreement shall be governed and construed in accordance with the laws of the State of California, without reference to the principles of conflicts of laws thereof. The parties hereto irrevocably agree to the exclusive jurisdiction of the federal and state courts located in the State of California, County of San Diego. If any section, provision, term or clause shall be found to be unenforceable or invalid, such provision may be modified or severed from this Agreement to the extent necessary to make such provision enforceable consistent with the remainder of this Agreement. No such unenforceability or invalidity shall affect the enforceability or validity of any other provision of this Agreement.
Any notices relating to this Agreement shall be given in writing and shall be deemed sufficiently given, served, and received for all purposes upon the first to occur of actual delivery evidenced by signed receipt, delivery by generally recognized overnight courier service with receipt requested, by facsimile transmission (with the original subsequently delivered by other means permitted by this Agreement), or three (3) days after deposit in the United States mail, certified or registered, return receipt requested, with postage prepaid, at the addresses set forth on the most recent Insertion Order (or such other address of which the other party has received prior written notification). This Agreement (and any documents incorporated herein by reference) constitutes the entire agreement between the parties hereto and contains all of the agreements between said parties with respect to the subject matter hereof. This Agreement supersedes any and all prior agreements, either oral or in writing, between the parties with respect to the subject matter hereof. This Agreement may only be modified, waived or amended in a writing signed by both parties. Sections 4, 11, 12,
13, 14, 15 and 16 shall survive any termination of this Agreement. Each party’s rights and obligations arising from any act or omission prior to any termination shall not be affected by such termination.