This Master Publisher Agreement (“MPA”) is entered into by and between eBrand Media, Inc also d.b.a Medianista on the one hand (hereinafter referred to as “Company”) and the customer identified on the IO (hereinafter referred to as “Publisher”) for the mutual promises contained herein and other good and valuable consideration, receipt and adequacy of which are hereby acknowledged. This MPA and the accompanying and subsequent Insertion Order (“IO”) shall define the Company’s and Publisher’s obligations with respect to Company’s services on Publisher’s behalf for Publisher’s advertising campaigns (“Campaigns”). Each IO submitted by Publisher shall incorporate this MPA. In the event of a conflict between the IO and this MPA, the IO shall take precedence only where the MPA section is specifically referenced and the IO is signed by the Company.
Term. The term of this Agreement shall begin upon the submission of an executed IO by Publisher to Company. Such IO shall be construed as an acceptance by Publisher of all the rates, terms and conditions under which advertising is sold at that time.
Termination of Agreement. Company may terminate this Agreement at any time for any reason or for no reason with notice via postal mail or email to the Publisher. This Agreement may be terminated at any time by either party, effective immediately upon written notice, if the other party: (i) files a voluntary petition in bankruptcy; (ii) makes an assignment for the benefit of creditors; (iii) breaches any of the material terms of this Agreement if such breach is not remedied within ten (10) business days from the receipt of written notice of such breach. Notwithstanding such termination, the Publisher shall remain liable for all payment obligations incurred pursuant to this MPA.
Cancellation of Campaign. Company expressly reserves the right to: (i) refuse any advertising request, cancel any Campaign, or change any Campaign; or (ii) refuse any advertising Creative(s). Any Campaign rejected by Company may be replaced by Publisher at Company’s sole discretion.
Advertising Content and Creative. Publisher shall provide or approve all creative and substantive content materials (“Advertising Content” or “Creative”) required for marketing the Campaign, including but not limited to banner advertisements, text links, videos, promotional HTML emails, promotional text e-mails, text links, keywords, and any other creative content as needed. Publisher is solely responsible for the substantive content and creative of each advertisement it submits or approves via email or in writing to any representative of the Company. Company reserves the right to reject, suspend, or cancel any Advertising Content. By submitting or approving any email creative or content, Publisher represents and warrants that (i) the submission meets all applicable regulations and laws in effect governing the submission at the time of such submission; (ii) accurately reflects Publisher’s product or service being advertised; and (iii) does not violate any applicable law or regulation governing deceptive advertising or consumer protection laws. Publisher agrees to approve any creative submitted to Publisher for approval within twenty-four (24) hours of its submission to the Publisher. If no approval is received within this time frame, Company shall presume that Publisher approves the submitted Creative(s).
Functionality. Publisher agrees to confirm the correct function of all Creative(s) supplied to Company within twenty-four (24) hours of the Campaign start. If no confirmation is received within this time frame, Company shall presume that Creative(s) are functioning properly and Publisher agrees to pay for all impressions, clicks, leads, orders, sales, or other action derived from the Creative(s) as measured by Company. All problems related to Creative(s) should be immediately brought to the attention of the Company account executive for Publisher. Company is not liable for errors in position and/or placement of the Creative(s), or typographic errors of any kind.
Allowed Alterations. Publisher agrees to allow Company to make changes or alterations to the Creative(s). Company shall notify Publisher of any changes it intends to make to the Creative(s) in accordance with this Section 2(c). Approval of such changes or alterations shall be implied if Company does not notify client within twenty-four (24) hours of Company’s having notified Publisher of said changes.
License. Publisher hereby grants to Company and its third party publishers a nonexclusive, limited, worldwide, royalty-free, revocable license to market, display, perform, copy, transmit, distribute, and promote the Campaign(s) in connection with its obligations hereunder.
Hosted Campaigns. Publisher understands that Company, in due diligence, cannot monitor all host sites, lists, or any and all other media placements for appropriate content and makes no representations with respect to any website, email list, or advertising placement where Campaign(s) are run.
Tracking Pixel. Conversions, sales, leads, orders, and/or clicks or any other conversion metric detailed on an Insertion Order (“User Actions”) shall be tracked by Company. Company’s tracking count shall be used for all purposes under this Agreement. Company shall have the right to place tracking pixel on Publisher’s website, as may be required to track estimated live statistics. The technical specifications of the tracking system and its delivery methods must be met to the reasonable satisfaction of Company before any advertising or ad-serving will be provided by Company. If Publisher removes or manipulates the tracking code at any time during the Campaign, without express written permission from Company, Company may suspend performance and, if applicable, Publisher agrees to pay Company for the days during which tracking code was absent or manipulated based on the average daily conversion measurements (using daily click counts and/or conversions for the seven (7) days prior to the tracking code being removed or manipulated). Notwithstanding the placement of a tracking pixel noted above, Publisher shall have reports made available for Company online at all times or submitted to Company daily via mail in Excel format.
Publisher Tracking [if applicable]. Where Publisher’s tracking mechanism is used, Publisher shall provide a login where Company can retrieve daily and month’s end summary reports reflecting the exact number of units delivered. Company, in its reasonable discretion and in consultation with Publisher, will determine the form of said reports. Where Company will also be tracking the count, if a dispute arises regarding Publisher’s count, the parties shall attempt to resolve the discrepancy in good faith, but in the event of a dispute, Company’s counts, determined in its sole discretion, shall govern.
Campaign Content. To the extent that a Campaign provides for or otherwise permits marketing by e-mail, the Advertising Content provided by Publisher or approved by Publisher shall also include, accurate and truthful offer descriptions (in text and html formats), terms and conditions (if applicable), the Publisher’s postal address and a functioning unsubscribe mechanism which, when activated by a user, will actually and permanently remove the user’s email address from the Publisher’s database within ten (10) days of request receipt and, a non-misleading and accurate “Subject Line” and/or “From Line” and any other information necessary to comply with applicable laws and regulations including but not limited to the CAN-SPAM Act of 2003.
Suppression List. Publisher agrees to maintain and deliver a suppression list containing the e-mail addresses of those individuals who have opted out or unsubscribed from receiving communications from the Publisher (the “Suppression List”). Publisher shall further provide an updated Suppression List to Company once every seven (7) days for the duration of the offer. Publisher shall use best practices to prevent use or disclosure of the Suppression List for any purpose other than to honor the request of individuals to opt out or unsubscribe from receiving communications and shall treat such Suppression lists as confidential information as provided herein.
Exclusive Campaigns. Publisher agrees that Company shall have exclusive distribution rights for Campaign(s) in the IO. Publisher shall not, without the prior written consent of Company, engage in or be involved with advertising, marketing or distributing of any products or services subject to the exclusive campaign on the world wide web, for a period commencing on the date of the MPA or applicable IO, whichever is later, and continuing for three (3) years or as indicated on the IO if any such notation is made on the IO. Publisher acknowledges and agrees to the following: (i) the time restrictions in this Section 6 are reasonable; (ii) the restrictions imposed by this Section 6 will not impair Publisher’s ability to promote and further its business model and (iii) monetary damages would be insufficient in the event of a breach of this covenant of exclusivity, and Company may seek injunctive relief to enforce this Agreement without proof of actual damages or the posting of a bond.
Non-Circumvention. During the term of this Agreement and for a period of one (1) year after expiration or termination of the Term, Publisher agrees and acknowledges that it will not, outside of any pre-established relationships with activity within the last year, knowingly take any action to circumvent the relationship with Company by doing business with or directly soliciting other online marketing service providers that are currently working with Company to provide to it services similar to the services provided by Company. To the extent applicable, Publisher further agrees that during the Term and for a period of one (1) year after expiration or termination of the Term, it will not, outside of any pre-established relationships with activity within the last one year, knowingly engage, contract with, work with, license with, enter into and/or execute any online advertising and/or marketing relationship with any advertising network, website, newsletter, search engine, e-mail list, or any other type of Internet property (collectively, “Publishers”) directly or within any advertising network that is comprised of Publishers (the “Network”). In the event a Publisher does contact Publisher and Publisher finds out at a later time that such Publisher is a Publisher that has either directly worked with Company or is within Company’s Network, then Publisher shall notify such Publisher immediately that it must work directly with Company and immediately halt any marketing campaigns it is conducting with such Publisher. Both parties agree and acknowledge that if Publisher violates its obligations under this Section, Company will suffer irreparable injury and shall be entitled to: (a) liquidated damages in the amount of fifty percent (50%) of the gross revenues resulting from sales conducted by Publisher through the advertising and/or marketing efforts of such Publisher(s), (b) injunctive relief, and (c) any other remedies Company may have at law or in equity.
Invoicing. For each offer provided by a party hereunder, the parties will enter into an IO specifying the price and other offer specifics. Any inconsistencies between the terms and conditions of the IO and this MPA shall be resolved in favor of the MPA. Publisher’s payment obligations shall be determined in accordance with the pricing specified in each IO and the amount of User Actions as determined herein. Upon approved credit, terms are net fifteen (15) days from the date upon which Company submits any invoice to Publisher, or as otherwise indicated on the IO. Invoices may be sent by email and/or postal mail. All payments must be in U.S. funds unless specified differently on the IO. Company, at any time, may require that Publisher provide a pre-payment reserve at Company’s sole discretion.
Disputed Invoice. In the event of a dispute between Publisher and Company regarding amounts due, or upon failure of a third-party’s tracking mechanism Publisher agrees that Company’s tracking count shall be applied. Publisher agrees that in no event, and under no circumstance, will data provided by any Company representative constitute final billing numbers. Only invoices sent directly to Publisher are to be construed as representative of billable amounts. In the event that Company does not receive a written notification of a disputed bill, with rationale and supporting documentation therefore specifically set forth therein, within five (5) days from the date of the invoice, such invoice will be deemed valid and payable and may not thereafter be disputed. Publisher acknowledges Company’s reliance upon this provision.
Late Payments. Any late payments will accrue interest equal to one and a half (1.5%) percent per month, or the maximum amount allowable under law, whichever is less, compounded monthly. Publisher will be charged twenty five dollars ($25) for payments by checks that are returned due to insufficient funds. Company shall be entitled to recover all reasonable costs of collection (including agency fees, attorneys’ fees, expenses and costs) incurred in attempting to collect payment from Publisher.
Special Terms for Credit Card Payments. In the event Publisher is authorized by Company to make payment by Credit Card, Publisher agrees that in the event there is a payment dispute, Publisher shall seek reimbursement from Company and shall not charge back or dispute any payment authorized and placed on their credit card. In the event Publisher dispute or charges back a Company payment on their credit card, such action shall be a material breach of this agreement. In addition to immediate suspension, termination of Publisher’s accounts, Company is also entitled to liquidated damages in the sum of 10% of the total chargeback amount.
Reporting Requirements. Publisher shall provide a daily, weekly and month’s end summary report reflecting the exact number of Units delivered. The Company, in its reasonable discretion and by consultation with Publisher, will determine the form of said reports. All delivery amounts and all agreements are subject to ten (10) percent over/under delivery and Publisher shall pay for any over-delivery within the above tolerance. Company has the final responsibility for the determination of Units delivered. Publisher shall be obligated to retain books and records pertaining to the Units delivered and other data necessary to compute the charges hereunder for at least one (1) year after the conclusion of each Campaign. Company shall have the right to audit such books and records. If the audit reveals an underpayment, Publisher shall promptly pay to Company such underpayment along with past due interest charges from the time originally due until paid. If the amount of the underpayment is more than one (1) percent, Publisher shall also be obligated to pay to Company its reasonable audit costs.
In the event that Company must incur expenses related to collection of any outstanding balance and/or late fees, Publisher shall immediately pay Company’s reasonable expenses associated with said collection, including, without limitation, reasonable attorney’s and collection agency’s fees. Company, in its sole discretion, may terminate this Agreement immediately if Publisher fails to pay any amount due hereunder.
All payments are personally guaranteed by the individual executing the IO and secured by the assets of Publisher.
Publisher represents and warrants that: (i) it holds all necessary rights to permit the use of all Creative provided to or approved by Company under this MPA; (ii) that the use, reproduction, distribution, transmission or display of any Creative and any materials to which users can link, or any products or services made available to users through the Creative will not (A) violate any law (including but not limited to the Federal Trade Commission Act, CAN-SPAM Act of 2003 and/or any applicable rules or regulations of the Federal Trade Commission, and Amendments thereto), give rise to criminal or civil liability or infringe any copyright, patent, trademark or service mark, trade secret rights or any other personal, moral, contract, property or privacy right of any third party; (B) contain or promote viruses, obscene, abusive, violent, bigoted, hate-oriented, cracking, hacking or warez content or conduct; or (C) encourage conduct that would constitute Unlawful Conduct or Offensive Conduct; (iii) it has a reasonable basis for all claims made within the Creative, possesses appropriate documentation to substantiate such claims and shall fulfill all commitments made in its Campaigns; (iv) the landing page for each Campaign (i.e., the Publisher’s website page where a consumer is directed when the consumer clicks on the Creative, fills in a registration form or takes a similar action) contains a prominent link to Publisher’s privacy policy, which policy provides, at a minimum, adequate notice, disclosure and choices to consumers regarding Publisher’s use, collection, disclosure and security of their personal information; (v) all consumer data collected pursuant to this MPA shall only be used for legal purposes; (vi) no data collected pursuant to this MPA shall be used for online preference marketing based on a consumer’s medical condition absent their express consent obtained after clear and conspicuous notice of such potential use; (vii) no Campaign is targeted to children under the age of eighteen (18) and/or offers products or services that are illegal for minors to buy, possess or participate in; and (ix) it will not load any computer program onto an individual’s computer, in connection with the Campaign, including without limitation programs commonly referred to as adware or spyware but excluding cookies, without Company’s prior written approval and the individual’s express consent after receiving clear and conspicuous notice about the nature of the application to be downloaded.
Publisher agrees to indemnify and hold Company, its third party publishers and list providers and their respective affiliates, employees, officers, agents, directors and representatives, harmless from all allegations, claims, actions, causes of action, lawsuits, damages, liabilities, obligations, costs and expenses (including without limitation reasonable attorneys’ fees, court costs and witness fees) arising out of or related to any third party claim of a breach of warranty or breach of this MPA. At its election, Company shall have the right to sole control over the litigation and/or settlement of any such claim, and Publisher shall be bound to pay any and all costs that Company incurs, settlement amounts that Company agrees to, judgments that are ordered to be paid, and any other fees or costs associated therewith.
Each party represents and warrants that it has the full right, power, legal capacity, and authority to enter into, deliver and fully perform under this MPA. Publisher further represents and it warrants that its performance hereunder will fully comply with all applicable laws, rules and regulations, including but not limited to the CAN-SPAM Act of 2003. Any agency executing this MPA on behalf of its client represents and warrants that it has the authority to bind its client to the terms stated herein and remains jointly and severally liable for all obligations under this MPA.
THE ADVERTISING SERVICE PROVIDED BY COMPANY, ITS USE AND THE RESULTS OF SUCH USE ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, COMPANY MAKES NO WARRANTIES (INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT), GUARANTEES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS, OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN, OR OTHERWISE, EXCEPT AS EXPRESSLY SET FORTH HEREIN, COMPANY DOES NOT WARRANT OR GUARANTEE CONVERSION RATES, PAY-UP RATES, RESPONSE RATES OR ABILITY TO CONVERT THE RESPONSES INTO SALES. COMPANY DOES NOT WARRANT OR GUARANTEE THE PROFILE OR DEMOGRAPHICS OF A RESPONDENT. COMPANY DOES NOT GUARANTEE TO MATCH COLORS, TEXT, PHOTO IMAGE OR SCREEN DESIGN. ALL ORDERS ARE CONTINGENT UPON COMPANY’S ABILITY TO PROCURE NECESSARY ON-LINE ACCESS AND COMPANY IS NOT RESPONSIBLE FOR DELAYS CAUSED BY ACCIDENT, WAR, ACT OF GOD, EMBARGO, COMPUTER SYSTEM FAILURE, OR ANY OTHER CIRCUMSTANCE BEYOND ITS CONTROL. COMPANY WILL MAKE EVERY EFFORT TO MEET SCHEDULED DELIVERY AND ONLINE DATES, BUT MAKES NO GUARANTEE AND ACCEPTS NO LIABILITY FOR ITS FAILURE TO MEET SAID DATES.
COMPANY SHALL NOT BE LIABLE FOR ANY PUNITIVE DAMAGES OR INDIRECT OR CONSEQUENTIAL LOSS, DAMAGE, COSTS OR EXPENSE OF ANY KIND WHATSOEVER AND HOWSOEVER CAUSED, WHETHER ARISING UNDER CONTRACT, TORT, NEGLIGENCE, STATUTE OR OTHERWISE, INCLUDING, (WITHOUT LIMITATION) LOSS OF PRODUCTION, LOSS OF OR CORRUPTION TO DATA, LOSS OF PROFITS OR OF CONTRACTS, LOSS OF OPERATION TIME AND LOSS OF GOODWILL OR ANTICIPATED SAVINGS, EVEN IF ADVISED OF THEIR POSSIBILITY EXCEPT IF SUCH LOSSES ARE THE RESULT OF FRAUD ON THE PARTY OF COMPANY. IN ANY EVENT, COMPANY’S TOTAL OBLIGATIONS AND/OR LIABILITY, IF ANY HEREUNDER, SHALL BE LIMITED TO THE AMOUNTS RETAINED BY THE COMPANY OF MONEYS PAID TO IT BY ADVERSITER FOR THE ADVERTISING CAMPAIGN(S) IN QUESTION.
The Provisions of this Section 9 are an essential element of the benefit of the bargain reflected in this MPA.
Each party may use Confidential Information received from the other party only in connection with and to further the purposes of this MPA and may only provide such Confidential Information to its respective directors, employees and advisors who have a “need to know” such Confidential Information and who are obligated to honor, the terms of this MPA. The fact that Confidential Information does not carry a proprietary legend, or is transmitted orally, shall not act as a waiver to deprive such information from protection under this Agreement.
Section 10(a) shall not apply to information which belongs to the Receiving Party or is: (i) already known by the Receiving Party, (ii) publicly known or becomes publicly known through no unauthorized act of the Receiving Party, (iii) lawfully received from a third party without restriction on use or disclosure if, to the Receiving Party’s knowledge, such third party had the legal right to disclose such information, or (iv) independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information. In addition a party may disclose Confidential Information hereunder if pre-approved in writing by the other party for disclosure, or if disclosure is required by law, governmental agency or rule, or court order, so long as the party required to disclose the information provides the other party with timely prior notice of such requirement.
Publisher agrees that during the term(s) of this MPA and for a period of one year thereafter, it will not directly or indirectly solicit the employment of any of Company’s employees, officers or directors, provided, that employment solicitations directed to the general public shall not be prohibited pursuant to this Section.
Upon completion or termination of this MPA or the written request of the Disclosing Party at any time, the Receiving Party shall, within five (5) business days from such completion, termination or request, return all copies of Confidential Information to the Disclosing Party or certify, if so requested, in writing that all copies of Confidential Information have been destroyed; except for material reasonably required to be maintained by counsel. A Receiving Party may return Confidential Information, or any part thereof, to the Disclosing Party at any time.
During the term of this Agreement and for thee (3) years hereafter, Publisher shall not directly or indirectly solicit any online publisher, Web Site, email provider, or other third party provider of media that is affiliated with Company. In the event that Publisher does so directly contract with such affiliate or in any other way violates this Agreement then Publisher shall pay Company an additional commission equal to what the Company would otherwise have earned had Publisher not violated this section 10. Any agency executing this Agreement represents and warrants that it has the authority to bind its client to the terms stated herein and remains jointly and severally liable for all obligations under this Agreement.
The parties agree and understand that a material breach of this Section 10 will cause the non-breaching party to suffer irreparable harm and that monetary damages may be inadequate to compensate for such damage. Accordingly, the parties agree that in such event, the non-breaching party, in addition to all other remedies, may be entitled to preliminary and permanent injunctive relief without the necessity of showing any actual damage or posting a bond. The foregoing remedy is a material, bargained for basis of this MPA and has been taken into account in each party’s decision to enter into this MPA.
This Agreement shall be governed by the laws of the United States and the State of California without respect to choice of law rules. The Parties consent to have all disputes regarding this agreement resolved by binding arbitration before the American Arbitration Association, Commercial Division. The parties agree to conduct the arbitration in Los Angeles, California and each party shall bear the costs of such arbitration. The parties specifically waive any international treaties or other international law which may govern the court or location of resolution of any dispute between them. This provision was a bargained for relinquishment of both parties rights to jurisdiction in their respective states or countries. The Parties waive the personal service of any process upon them and agree that service may be completed by overnight mail (using a commercially recognized service) or by U.S. mail with delivery receipt to the address stated in this Agreement. Company shall be entitled to recover all reasonable costs of collection (including attorney’s fees, in-house counsel costs, expenses and costs) incurred in attempting to collect payment from Publisher. The prevailing party in any Arbitration shall be entitled to an award of attorney fees and costs for such arbitration.
All notices, requests, demands, and other communications hereunder shall be in writing and shall be deemed given at the time such communication is sent by registered or certified mail (return receipt requested), or recognized national overnight courier service, or delivered personally, to the following addresses (or at such other address for a party as shall be specified by like notice): If to Company, to the attention of the President at 24955 Pacific Coast Highway, Suite A106, Malibu, CA 90265. If to Publisher, to any company employee or representative at the address listed on the initial IO or any future address of the Publisher.
Each party is an independent contractor. Any intention to create a joint venture or partnership between the parties is expressly disclaimed. Except as set forth herein, neither party is authorized or empowered to obligate the other or to incur any costs on behalf of the other without the other party’s prior written consent.
This MPA and exhibits or addendum thereto constitutes a valid and binding agreement between the parties, and has been duly executed by an authorized representative of each party. This MPA and any exhibits or addenda thereto is intended to be the parties’ complete, integrated expression of the terms of their agreement and any prior agreements or understandings with respect to such subject matters are superseded hereby and fully merged herein, and may only be modified in writing by authorized representatives of the parties. The terms and conditions hereof shall prevail exclusively over any written instrument or Insertion Order submitted by Publisher even if signed by Company unless this MPA is expressly amended by an addendum attached hereto that references this MPA and the specific provisions to be modified. No interlineations to this MPA shall be binding unless signed by both parties. In the event that a party is required to digitally sign or agree to additional terms when using the other’s website, the parties acknowledge and agree that such digital agreement is inconsequential and in no way binding; that it is the result of a technical requirement, which cannot be altered, in order to view stats and access Advertising Content. Therefore, any terms which appear on the other’s online advertising network or website are to be disregarded and deemed non-effective, and shall be superseded by this Agreement. Neither party may assign this MPA without express written permission of the other party.
Any obligations which expressly or by their nature are to continue after termination, cancellation, or expiration of this MPA shall survive and remain in effect after such happening, including without limitation, Sections 6, 7, 9-11, 14,15 and 17. Each party acknowledges that the provisions of this MPA were negotiated to reflect an informed, voluntary allocation between them of all the risks (both known and unknown) associated with the transactions contemplated hereunder. Further, all provisions are inserted conditionally on their being valid in law. In the event that any provision of this MPA conflicts with the law under which the MPA is to be construed or if any such provision is held invalid or unenforceable by a court with jurisdiction over the parties to the MPA, (i) such provision will be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law; and (ii) the remaining terms, provisions, covenants, and restrictions of the MPA will remain in full force and effect.
Except as otherwise specified, the rights and remedies granted to a party under this MPA are cumulative and in addition to, not in lieu of, any other rights and remedies which the party may possess at law or in equity. Failure of either party to require strict performance by the other party of any provision shall not affect the first party’s right to require strict performance thereafter. Waiver by either party of a breach of any provision shall not waive either the provision itself or any subsequent breach.
This MPA may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, and such counterparts together shall constitute one and the same instrument. For purposes hereof, a facsimile copy of this MPA shall be deemed to be an original. By executing this Agreement, the parties acknowledge that they have reviewed the terms and conditions incorporated herein and agree to be legally bound by the same. The parties hereby cause this Agreement to be executed by their duly authorized representatives
