THESE TERMS OF SALE (this "Agreement") FORM A CONTRACT BETWEEN THE PERSON OR ENTITY utilizing THE SERVICE (the "Publisher") PROVIDED THROUGH THE Zenoviaexchange.com website and Zenovia Digital Exchange Corporation (the "Company").
BY CLICKING THE "I ACCEPT" BUTTON DISPLAYED AS PART OF THE REGISTRATION PROCESS YOU AFFIRM THAT (i) YOU ARE AT LEAST 18 YEARS OF AGE; (ii) YOU ARE AN EMPLOYEE, DIRECTOR, OR AGENT OF THE PUBLISHER; (iii) YOU HAVE THE LEGAL AUTHORITY TO BIND THE PUBLISHER TO THIS AGREEMENT; AND (iv) PUBLISHER AGREES TO THE TERMS OF SALE AND SHALL COMPLY WITH THEM WHEN USING THE COMPANY'S ONLINE ADVERTISING platform (the "Zenovia Platform").
(a) Pursuant to this Agreement the Company will permit the Publisher to use the Zenovia Platform to sell advertising opportunities (each, an "Ad Opportunity") on websites and other online platforms (each, a "Site") owned or controlled by the Publisher.
(b) By utilizing the Zenovia Platform, the Publisher is selling to the Company each Ad Opportunity on a Site that the Publisher tags or otherwise submits to the Zenovia Platform from the time the Ad Opportunity is submitted until the Publisher un-submits the Ad Opportunity (either by removing any necessary tags or by un-submitting the Ad Opportunity through the Zenovia Platform or by terminating this Agreement).
(c) The Company will pay the Publisher for each Ad Opportunity a price that is determined by the price-optimizing algorithms and functions contained within the Zenovia Platform and by the Company's resale of each Ad Opportunity through multiple online advertising networks and exchanges ("Ad Networks"). The price for each Ad Opportunity will change and will be determined dynamically for each Internet viewer who is presented with an Ad Opportunity on a Site. The Company will provide the Publisher with reporting on the sale prices of Ad Opportunities on a near-real-time basis (generally on a delay of approximately 24 hours). All sales are final and the price determined by the Zenovia Platform for the sale of each Ad Opportunity is final and irrevocable.
(d) Unless otherwise agreed in writing, the Company will pay the Publisher on a monthly basis after the end of each month for all Ad Opportunities purchased by the Company during the preceding month by wire transfer or ACH to the account designated by Publisher for receipt of payments. Notwithstanding the foregoing, if the aggregate amount for any month is less than $25, such amount will be rolled into succeeding months until the aggregate amount payable to Publisher is $25 or more.
(a) The Company may terminate this Agreement at any time and may terminate Publisher's access to the Zenovia Platform.' Publisher may also terminate this Agreement at any time by notifying Company of such termination through the termination function in the Zenovia Platform.
(b) Upon termination of this Agreement for any cause or reason whatsoever, neither party shall have any further rights or obligations under this Agreement, except as expressly set forth herein. The provisions of Sections 2(b), 3, and 5-13 of this Agreement shall survive the expiration or termination of this Agreement for any cause or reason whatsoever, and, notwithstanding the expiration or termination of this Agreement, the parties shall each remain liable to the other for any indebtedness or other liability theretofore arising under this Agreement. Termination of this Agreement and retention of any pre-paid fees and charges shall be in addition to, and not be in lieu of, any other legal or equitable rights or remedies to which Company may be entitled.
Publisher hereby represents and warrants to Company, and agrees that Publisher will ensure that: (a) Publisher is the owner or valid licensee of all of the text, graphics, original works of authorship and other content that appears on any of the Sites (collectively, the "Publisher Content"), and Publisher has secured all necessary licenses, consents, permissions, waivers and releases for the use of the Publisher Content and each element thereof, including without limitation, all trademarks, logos, names and likenesses contained therein, without any obligation by Company to pay any fees, residuals or other compensation of any kind to any Person; (b) Publisher's use, publication and display of the Publisher Content will not infringe any copyright, patent, trademark, trade secret or other proprietary or intellectual property right of any Person, or constitute a defamation, invasion of privacy or violation of any right of publicity or any other right of any Person, including, without limitation, any contractual, statutory or common law right or any "moral right" or similar right however denominated; (c) Publisher will comply with all applicable laws, rules and regulations regarding the Publisher Content and will use the Zenovia Platform only for lawful purposes; (d) Publisher has used its best efforts to ensure that the Publisher Content is and will at all times remain free of all computer viruses, worms, trojan horses and other malicious code; and (e) Publisher will use the Zenovia Platform only for its intended purposes. .
Publisher hereby grants to Company a royalty-free, worldwide right and license to do the following: (a) sell Ad Opportunities on the Sites, (b) advertise and promote the sale of Ad Opportunities on the Sites, and (c) insert ad tags on the Ad Opportunities on the Sites. Except for the rights expressly granted above, Company is not acquiring any right, title or interest in or to the Publisher Content, all of which shall remain solely with Publisher.
a) Publisher is solely responsible for the accuracy, truthfulness, quality, performance and all other aspects of the Publisher Content.
(b) Publisher will notify Company of any change in Publisher's mailing address, telephone, e-mail, legal status or other contact information. Publisher is wholly responsible for the security and integrity of Publisher's login name and password for the Zenovia Platform.
(c) Company reserves the right to investigate, at its own discretion, any activity that may violate this Agreement or any engagement in any activity prohibited by this Agreement. Publisher agrees that it will cooperate with any investigation initiated by Company under this Agreement. Publisher grants Company the right to access, index and cache the Sites or any portion thereof, including by automated means including Web spiders or crawlers. Publisher also authorizes Company to access the performance and billing reports which Publisher has integrated into the Zenovia Platform. Company will provide a commercially reasonable amount of technical support by email, message-board and/or Internet-based chat technology, should Publisher need such support.
(a) Except for the right to use the Zenovia Platform, this Agreement does not transfer from Company to Publisher any ownership rights or license rights to use any intellectual property owned or licensed by the Company (collectively, "Company Technology"). Publisher shall not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from any of the Company Technology.
(b) Company's trademarks, trade names, service marks, logos, other names and marks, and related product and service names, design marks and slogans are the sole and exclusive property of Company. Publisher may not use any of the foregoing in any advertising, publicity or in any other commercial manner without the prior written consent of Company.
(c) Any feedback, data, answers, questions, comments, suggestions, ideas or the like which Publisher sends to Company relating to the Zenovia Platform (collectively, "Publisher Comments") will be owned exclusively by the Company and the Company may pursue, or not pursue, any public or private registration or application process in order to secure for the Company any and all intellectual property rights that may be contained within, or suggested by, any Publisher Comments, including without limitation any trademark registration, copyright registration, patent application or any other public or private filing.
(a) IN NO EVENT SHALL COMPANY BE LIABLE UNDER THIS AGREEMENT FOR ANY DAMAGES, INCLUDING COMPENSATORY, CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, AND PUNITIVE DAMAGES, WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. PUBLISHER ACKNOWLEDGES AND AGREES THAT ITS USE OF THE ZENOVIA PLATFORM IS AT PUBLISHER'S OWN RISK AND THAT PUBLISHER'S SOLE REMEDY IN CASE OF ALLEGED DAMAGES ARISING FROM USE OF THE ZENOVIA PLATFORM IS TO IMMEDIATELY TERMINATE ITS USE OF THE ZENOVIA PLATFORM. PUBLISHER AGREES THAT IN NO CASE SHALL COMPANY BE MONETARILY LIABLE TO PUBLISHER.
(b) Company cannot guarantee continuous service of the Zenovia Platform, service at any particular time, integrity of data, information or content stored or transmitted via the Internet. Company will not be liable for any unauthorized access to, or ANY corruption, erasure, theft, destruction, alteration or inadvertent disclosure of, data, information or content transmitted, received or stored on its system.
(c) EXCEPT AS EXPRESSLY PROVIDED BELOW, NEITHER PARTY SHALL be liable in any way to THE OTHER PARTY OR ANY OTHER PERSON for any lost profits or revenues, LOSS OF USE, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LICENSES OR SERVICES or similar economic loss, or for any PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, consequential OR SIMILAR damages OF ANY NATURE, WHETHER FORESEEABLE OR NOT, UNDER ANY WARRANTY OR OTHER RIGHT HEREUNDER, arising out of or in connection with the performance or non-performance of the Zenovia Platform, OR (EXCEPT AS PROVIDED IN SECTION 9) FOR ANY CLAIM AGAINST THE OTHER PARTY BY A THIRD PARTY, REGARDLESS OF WHETHER it HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES.
(d) The limitations contained in this Section 8 apply to all causes of action in the aggregate, whether based in contract, tort or any other legal theory (including strict liability), other than claims based on fraud or willful misconduct. The limitations contained in Section 8(c) shall not apply to Publisher's indemnification obligations under Section 9.
Publisher shall defend, indemnify and hold harmless Company, its affiliates and their respective present, former and future officers, directors, employees and agents, and their respective heirs, legal representatives, successors and assigns (collectively the "Company Indemnitees"), from and against any and all losses, damages, costs, liabilities and expenses (including, without limitation, amounts paid in settlement and reasonable attorneys' fees) which any of the Company Indemnitees may suffer, incur or sustain resulting from or arising out of (i) Publisher's breach of any representation, warranty, or covenant contained in the Agreement, (ii) the Publisher Content or any Person's use of the Publisher Content, (iii) claims or actions of third parties alleging misappropriation of trade secrets or infringement of patents, copyrights, trademarks or other intellectual property rights arising from the use, display or publication of the Publisher Content, or Publisher's use of the Zenovia Platform in combination with hardware, software or content not provided by Company, and (iv) claims or actions by third parties relating to or arising out of Publisher's use of the Zenovia Platform.
(b) Notwithstanding Section 10(a), the following shall not be considered Proprietary Information: (i) any information that the receiving party can demonstrate by written documentation was within its legitimate possession prior to the time of disclosure by the disclosing party; (ii) any information that was in the public domain prior to disclosure by the disclosing party as evidenced by documents that were published prior to such disclosure; (iii) any information that, after disclosure by the disclosing party, comes into the public domain through no fault of the receiving party, (iv) any information that is disclosed to the receiving party without restriction by a third party who has legitimate possession thereof and the legal right to make such disclosure; (v) with respect to the Publisher, the Publisher Content, or (v) any information that, two years after expiration or termination of this Agreement, does not constitute a trade secret under applicable law.
(c) Each party acknowledges that disclosure of any aspect of the Proprietary Information of the other party shall immediately give rise to continuing irreparable injury to the other party inadequately compensable in damages at law, and, without prejudice to any other remedy available to the other party, shall entitle the other party to injunctive or other equitable relief. Upon expiration or termination of this Agreement for any reason, each party shall promptly return to the other party all Proprietary Information of the other party (including all copies thereof) in its possession or control.
Publisher grants Company a non-exclusive, non-transferable, royalty-free license to use Publisher's company name, service, and/or logos ("Trademarks") for use by Company on Company's web site, promotional materials, and marketing collateral in conjunction with the Zenovia Platform.'' Company shall make no other use of the Trademarks. Company acknowledges and agrees that the rights granted to Company by this license do not constitute and should not be construed to be an assignment of any or all of Publisher's rights with respect to the Trademarks.
(a) Independent Contractor. Company and Publisher are independent contractors and nothing contained in this Agreement places Company and Publisher in the relationship of principal and agent, master and servant, partners or joint venturers. Neither party has, expressly or by implication, or may represent itself as having, any authority to make contracts or enter into any agreements in the name of the other party, or to obligate or bind the other party in any manner whatsoever.
(b) Governing Law, Jurisdiction. Any controversy or claim arising out of or relating to this Agreement, the formation of this Agreement or the breach of this Agreement, including any claim based upon arising from an alleged tort, shall be governed by the substantive laws of the State of Georgia applicable to contracts made between residents of the State of Georgia. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any suit, action or proceeding concerning this Agreement must be brought in a Georgia state or federal court located in fulton county, georgia, and each of the parties hereby irrevocably consents to the exclusive jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such suit, action or proceeding and irrevocably waives, to the fullest extent permitted by applicable law, any objection which it may now or hereafter have to the laying of the venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding which is brought in any such court has been brought in an inconvenient forum.
(c) Headings. The headings herein are for convenience only and are not part of this Agreement.
(d) Entire Agreement; Amendments. This Agreement, including documents incorporated herein by reference, supersedes all prior discussions, negotiations and agreements between the parties with respect to the subject matter hereof, and this Agreement constitutes the sole and entire agreement between the parties with respect to the matters covered hereby. In case of a conflict between this Agreement and any purchase order, service order, work order, confirmation, correspondence or other communication of Publisher or Company, the terms and conditions of this Agreement shall control. No additional terms or conditions relating to the subject matter of this Agreement shall be effective unless approved in writing by any authorized representative of Publisher and Company. This Agreement may not be modified or amended except by another agreement in writing executed by the parties hereto; provided, however, that this Agreement may be modified from time to time by Company in its sole discretion, which modifications will be effective upon posting to Company's web site.
(e) Severability. All rights and restrictions contained in this Agreement may be exercised and shall be applicable and binding only to the extent that they do not violate any applicable laws and are intended to be limited to the extent necessary so that they will not render this Agreement illegal, invalid or unenforceable. If any provision or portion of any provision of this Agreement shall be held to be illegal, invalid or unenforceable by a court of competent jurisdiction, it is the intention of the parties that the remaining provisions or portions thereof shall constitute their agreement with respect to the subject matter hereof, and all such remaining provisions or portions thereof shall remain in full force and effect.
(f) Notices. All notices and demands required or contemplated hereunder by one party to the other shall be in writing and shall be deemed to have been duly made and given upon date of delivery if delivered in person or by an overnight delivery or postal service, upon receipt if delivered by facsimile the receipt of which is confirmed by the recipient, or upon the expiration of five days after the date of posting if mailed by certified mail, postage prepaid, to the addresses or facsimile numbers set forth below the parties' signatures. Either party may change its address or facsimile number for purposes of this Agreement by notice in writing to the other party as provided herein. Company may give written notice to Publisher via e-mail to the Publisher's e-mail address as maintained in Company's billing records.
(g) Waiver. No failure or delay by any party hereto to exercise any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy by any party preclude any other or further exercise thereof or the exercise of any other right or remedy. No express waiver or assent by any party hereto to any breach of or default in any term or condition of this Agreement shall constitute a waiver of or an assent to any succeeding breach of or default in the same or any other term or condition hereof.
(h) Assignment,Successors. Publisher may not assign or transfer this Agreement, or any of its rights or obligations hereunder, without the prior written consent of Company. Any attempted assignment in violation of the foregoing provision shall be null and void and of no force or effect whatsoever. Company may assign its rights and obligations under this Agreement, and may engage subcontractors or agents in performing its duties and exercising its rights hereunder, without the consent of Publisher. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
(i) Limitation of Actions. No action, regardless of form, arising by reason of or in connection with this Agreement may be brought by either party more than one year after the cause of action has arisen.
(j) Counterparts. If this Agreement is signed manually, it may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. If this Agreement is signed electronically, Company's records of such execution shall be presumed accurate unless proven otherwise.
(k) Force Majeure. Neither party is liable for any default or delay in the performance of any of its obligations under this Agreement (other than failure to make payments when due) if such default or delay is caused, directly or indirectly, by forces beyond such party's reasonable control, including, without limitation, fire, flood, acts of God, labor disputes, accidents, acts of war or terrorism, interruptions of transportation or communications, supply shortages or the failure of any third party to perform any commitment relative to the production or delivery of any equipment or material required for such party to perform its obligations hereunder.
(l) No Third-Party Beneficiaries. Except as otherwise expressly provided in this Agreement, nothing in this Agreement is intended, nor shall anything herein be construed to confer any rights, legal or equitable, in any Person other than the parties hereto and their respective successors and permitted assigns.
For purposes of this Agreement, the following terms have the meanings specified below:
(a) "Person" means any individual, partnership, joint venture, corporation, limited liability company, trust, unincorporated association or organization, or government or any agency or political subdivision thereof.
(b) "Proprietary Information" means all technical, business and other information of a party (i) that is not generally known to the public, (ii) that derives value, economic or otherwise, from not being generally known to the public or to other Persons who can obtain value from its disclosure or use, and (iii) which information is subject to efforts that are reasonable under the circumstances to maintain the secrecy thereof.
Last revised: April 15, 2012