MEDLEY ADVERTISING MASTER AGREEMENT
THE MEDLEY ADVERTISING MASTER AGREEMENT (this "Agreement") applies to any invoice or insertion order (the "Insertion Order") between you (the "Publisher," "you" or "your") and Medley.com Incorporated, a California corporation ("Medley," "we," "its," "us," "our" or "Company").
Medley is a wholly owned subsidiary of Various, Inc., a California corporation, specializing in the delivery of advertising content on behalf of Various and its affiliates (all collectively, the "Various Entities");
Publisher owns and/or operates website(s), service(s) and/or (an) advertising network(s) (the "Publisher's Sites," or "Your Sites") and desires to deliver Medley's banner advertisements, button links and/or text links (the "Links") in accordance with the terms and conditions of the Insertion Order and this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
- ADVERTISING SERVICES. Publisher agrees to sell, and Medley agrees to purchase, advertising placement on Publisher's Sites for the purposes of promoting and selling subscriptions, memberships, services and goods on websites owned and operated by one or more Various Entities (the "Various Services").
- USING OUR LINKS ON YOUR SITE; YOUR LINKS. Medley will make its Links available to Publisher to promote the Various Services. These Links may contain logos, service marks and/or identifying words for Various Services. You may display Links throughout Your Sites as detailed in the Insertion Order. In addition to any Links provided by Medley, and subject to the terms and conditions of this Agreement, you may create your own advertising content on behalf of the Various Entities.
- RESPONSIBILITIES FOR OPERATION OF YOUR SITES. You will be solely responsible for the development, operation, maintenance and all materials that appear on Your Sites, except the Links we make available to you.
- NON-EXCLUSIVE LIMITED LICENSE TO USE VARIOUS MARKS.
- The Various Entities grant you a non-exclusive, non-transferable, revocable license to use our logos, trade names, trademarks, service marks, and similar identifying material, including but not limited to, "AFF," "FFN," "Adultfriendfinder," "Friendfinder," "Alt.com," "Outpersonals" and "Passion.com" (the "Various Marks") solely for the purpose of advertising the Various Services subject to and in accordance with the terms of this Agreement.
- You Agree
- to refrain from purchasing, bidding on, or otherwise obtaining or using keywords incorporating or otherwise based upon the Various Marks on search engines (e.g., google.com, yahoo.com, msn.com);
- to use the Various Marks exactly in the form provided and in conformance with any trademark usage policies of the Various Entities and may not alter, modify or change the Various Marks in any way;
- to furnish, upon request, at no charge to the Various Entities, a representative specimen of your use of the Various Marks;
- if, at any time, your use of the Various Marks fails to conform to the Various Entities' quality standards, to promptly remove the Various Marks from your website or web page;
- not to take any action inconsistent with the Various Entities' ownership of the Various Marks;
- not to use the Various Marks in any manner that is disparaging or that otherwise portrays the Various Entities in a negative or misleading light;
- not to create a website or web page that uses the Various Marks in a manner that is likely to be confused (e.g., similar designs, graphics, look and feel) with one or more websites operated by the Various Entities; and
- not to use, register or file an application to register a trademark, service mark, domain name, user name, account name or other proprietary designation incorporating the Various Marks, or any variation of the Various Marks, whether they are used alone, in part, or in combination with other words (e.g., "californiafriendfinder") or are based upon typographical errors or misspellings (e.g., "freindfinder")("Prohibited Designation").
- You are only entitled to use the Various Marks to the extent that you advertise Various Services pursuant to and in accordance with this Agreement. We reserve all of our intellectual property rights in the Various Marks, and any and all goodwill generated by your use of the Various Marks shall inure solely to the benefit of the Various Entities. You recognize the great value of the goodwill associated with the Various Marks, and acknowledge that the Various Marks and all rights therein and goodwill pertaining thereto are valid and belong to the Various Entities, and that the Various Entities own the exclusive right to use and authorize others to use the Various Marks.
- The license granted to you pursuant to this section shall terminate upon expiration or termination of the Insertion Order (or, if there is more than one, the last Insertion Order).
- If you have previously used or registered any Prohibited Designation, (i) upon request or (ii) if no request has been made, upon expiration or termination of this Agreement, you agree to transfer all of your rights in the Prohibited Designation and the associated goodwill to us within 10 days thereafter. In such a case, we shall pay you a reasonable fee to cover the expenses necessary to transfer the Prohibited Designation, but in no instance will the amount exceed $100 per domain or $500 for all domains. You hereby grant an irrevocable power of attorney coupled with an interest to the Various Entities to take all steps necessary to effectuate the transfer of the Prohibited Designation to the Various Entities in the event that you fail to comply with the terms of this paragraph. Without limiting the foregoing, you specifically agree not to use the Prohibited Designations to promote the goods or services of any third parties.
- NON-EXCLUSIVE LIMITED LICENSE TO USE YOUR MARKS. For all times that any Insertion Order remains active, Publisher grants us a non-exclusive license to utilize your names, titles, logos, and trademarks ("Your Marks") to advertise, market, promote, and publicize in any manner our rights hereunder. We shall not be required to so advertise, market, promote or publicize. You hereby represent and warrant that you are the sole and exclusive owner of the Your Marks and have the right and power to grant to us the license to use them in the manner contemplated herein, and such grant does or will not (i) breach, conflict with, or constitute a default under any agreement or other instrument applicable to you or binding upon you, or (ii) infringe upon any trademark, trade name, service mark, copyright, or other proprietary right of any other person or entity. This license shall terminate upon the effective date of the expiration or termination
of any Insertion Order (or, if there is more than one, the last Insertion Order.)
- REPORTING. Within 2 business days after the start date on the Insertion Order, you shall provide confirmation to us either electronically or in writing, stating whether the components of the Insertion Order have begun delivery. You shall deliver or make available to us reports at least weekly, either electronically or in writing. Reports must be broken out by day and summarized and provided in the Insertion Order, e.g., impressions, keywords, pixel activity, time and/or clicks. We are entitled to rely on upon any report that you provide to us.
- MAKEGOODS. You shall monitor advertising, and shall notify us if you believe that an under-delivery is likely. In the case of a probable or actual under-delivery, the parties may arrange for makegood consistent with the Insertion Order. A makegood will also be required if there is an incorrect link, image, or tag running due to the fault of the Publisher. The makegood will equal the amount of time, impressions, clicks, or pixel activity delivered incorrectly.
- ACKNOWLEDGEMENT OF FTC ORDER. You acknowledge that you have received, read, and agree to comply with the "Stipulated Final Order for Permanent Injunction as to Defendant Various, Inc." filed on December 12, 2007 (the "FTC-Various Order") and understand and agree that engaging in acts or practices prohibited by the FTC-Various Order will result in the immediate termination of any Insertion Order and a forfeiture of all monies received or owed by the Various Entities.
You agree to fully cooperate with our compliance with the FTC-Various Order.
You agree to immediately notify us if you receive any complaints regarding alleged use sexually explicit advertising of the Various Services.
You agree to fully cooperate in any investigation we choose to perform for compliance under the above FTC-Various Order or to determine any violations of this Agreement, including, but not limited to, retaining for 8 years and immediately providing to us within three (3) business days of our written demand with all copies of historical web pages/URLs or online advertising that contain (or contained), if any, sexually explicit material used to advertise Various Services.
Click here to download a PDF copy of the FTC Order.
- REPRESENTATIONS AND WARRANTIES. You hereby represent and warrant to us that you or Your Sites do not:
- contain or promote materials that infringe or violate copyrights, patents, trademarks, intellectual property, privacy or publicity, or other proprietary rights of the Various Entities or any third-parties;
- contain any materials that depict persons under the age of eighteen years old, or in a manner that suggests they are;
- promote (i) harmful or indecent matter to minors, (ii) violence, (iii) discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age;
- contain content that is defamatory, misleading, libelous, hateful or unlawfully threatening, abusive or harassing;
- involve advertising, marketing or business practices that are fraudulent, misleading, and/or promote unfair competition or involves any spoofing;
- own, control or use a URL containing a Prohibited Designation;
- send, transfer or otherwise initiate (i) e-mails in violation of Can-Spam Act of 2003 (i.e., "spam"), or unsolicited chat messages, e.g., instant messages, group chat rooms; or (ii) any downloadable programs or executables that contain viruses, worms, "Trojan horses" or any other destructive features that unlawfully violate the rights of third-parties, e.g., redirect to unwanted websites, modify browser settings, interfere with site navigation, accesses data;
- violate, or promote violation of, any law, statute, ordinance or regulation; or
- violate an order, judgment decree, or the terms of any other agreement, document or instrument to which you are subject or bound;
You also represent that you have the full authority to enter into this Agreement and that, if Publisher is an individual, you have reached the age of majority in the jurisdiction where you reside and/or do business.
- PROHIBITED ACTIVITIES. Publisher may not advertise on our behalf in any manner that violates, or is otherwise inconsistent with, Sections 8 ("Acknowledgement of FTC Order") and 9 ("Representations and Warranties").
Unless expressly provided in the Insertion Order, you are strictly prohibited from using sexually explicit content to advertise Various Services. Any use of sexually explicit content must comply with Sections 8 ("Acknowledgement of FTC Order") and 13 ("Compliance with 18 USC section 2257")
Unless expressly provided in the Insertion Order, Publisher may NOT link to, display, or by any other method use any photos, videos or any other information pertaining to any members of any Various Entities' website.
- DISCLAIMERS. WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT ARISING OUT OF ANY OF PUBLISHER'S USERS USE OF VARIOUS SERVICES. FURTHER, THE VARIOUS ENTITIES EXPRESSLY DISAVOW ANY OBLIGATION TO DEFEND, INDEMNIFY OR HOLD PUBLISHER OR ANY OF ITS REPRESENTATIVES OR OWNERS HARMLESS IN CONNECTION WITH ANY LAWSUIT OR OTHER PROCEEDING BASED UPON THIS USE. IN ADDITION, WE MAKE NO REPRESENTATION AND WARRANTY THAT THE OPERATION OF ANY OF VARIOUS ENTITIES' WEBSITES OR VARIOUS SERVICES WILL REMAIN UNINTERRUPTED OR ERROR-FREE.
- LIMITATION OF LIABILITY. The Various Entities shall not be liable for exemplary, consequential, special, punitive and similar damages, including without limitation, any damages resulting from loss of use, loss of business, loss of revenue, loss of profits, or loss of data, arising in connection with this Agreement even if we have been advised of the possibility of such damages. Further, our aggregate liability arising with respect to this Agreement will not exceed the aggregate amount paid to you during the past six months. The foregoing limitation of liability shall apply regardless whether based upon breach of contract, negligence, violation of 18 USC section 2257 et seq., errors and omissions, copyright, trademark, patent, or any other claim or cause of action under which such damages are sought.
- COMPLIANCE WITH 18 USC SECTION 2257. Your Sites shall comply with 18 USC section 2257. To the extent that we provide you with Links that contain a visual depiction of any person that is "sexually explicit" as defined by 18 USC section 2256, you shall only use these Links in a manner that is compliant with 18 USC section 2257. You are prohibited from using any sexually explicit material to advertise any of Various Services unless we provide the material to you.
- ACCURACY OF DOMAIN REGISTRATION. The domain registration (i.e., "whois") information of Your Sites that contain Links (the "Domain Information") shall be publically available, i.e., not blocked or redacted by your registrar, and contain current and accurate contact information, e.g., Publisher's name, address, telephone number, email address, that would provide any third-party with a reasonable expectation of contacting you during normal business hours. We reserve the right to disclose Domain Information to anyone when it is not publically available, current and/or accurate.
- TERM; TERMINATION. The term of any Insertion Order is provided therein. Either party may terminate any Insertion Order at any time by providing the other party with 48 hour written notice. Sections 4, 5, 9, 11, 12, 15-19, 21-28 shall survive expiration or termination of this Agreement.
- NO AGENCY. Nothing in this Agreement shall be construed to create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You will have no authority to make or accept any offers or representations on our behalf. Publisher shall not make any statement that contradicts anything in this Section.
- CONFIDENTIALITY. The terms and conditions, other than the existence, of any Insertion Order, shall be kept confidential by the parties hereto and shall not be disclosed by either party to any third party except: (i) as may be required by any court of competent jurisdiction, governmental agency, law or regulation (in such event, the disclosing party shall if permitted give reasonable advance notice to the other party of the disclosure and redact or seek an appropriate protective order to the extent possible before disclosing the Agreement); (ii) as part of the normal reporting or review procedure to a party's accountants, auditors, agents, legal counsel, and employees of partners, parent and subsidiary companies or lenders, potential financing entities or purchasers so long as all such entities and persons
agree to be bound by this section or otherwise owe a duty of confidence to the disclosing party; (iii) in connection with a sale, acquisition, merger, joint venture, initial public offering or takeover; provided such third parties agree in writing to be bound by this section; and (iv) to enforce any of a party's rights pursuant to this Agreement.
- INDEMNIFICATION. You hereby agree to defend (or pay our fees ands costs of defense at our sole discretion), indemnify and hold the Various Entities and their respective successors, assigns, shareholders, officers, directors, employees and applicable third parties (e.g. licensors, licensees, consultants and contractors) (collectively, the "Indemnified Person(s)") harmless against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees) brought against the Indemnified Person(s) arising out of, related to or which may arise from your use of the Links and/or your breach of any term of this Agreement.
- INDEPENDENT INVESTIGATION/MUTUAL DRAFTING. YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, INCLUDING ANY ACCOMPANYING INSERTION ORDER, AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU UNDERSTAND THAT WE MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) PROVIDE TERMS TO OTHERS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR OPERATE WEBSITES THAT ARE SIMILAR TO OR COMPETITIVE WITH YOUR WEBSITE WITHOUT OBLIGATION TO YOU. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF ENTERING INTO THIS AGREEMENT AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT. We strongly advise that you review this Agreement with your attorney before you enter into it. You acknowledge and agree that nothing herein and no statement by us or any employee, representative,
agent or other person associated with us has in any way prevented or inhibited you in any way from seeking such advice prior to entering into this Agreement. You hereby acknowledge and agree that the terms of this Agreement are reasonable and fair; all terms have been fully disclosed in writing, and that you have been given a reasonable chance to seek advice of independent counsel with respect to this Agreement and all transactions associated herewith. For purposes of construction of this Agreement, both Publisher and Medley shall be deemed to have mutually drafted this Agreement and all parts thereof.
- NON-ASSIGNABILITY OF THE AGREEMENT. You may not resell, assign or transfer any of your rights or obligations under this Agreement without our prior written consent. Medley may resell, assign or transfer its rights and obligations under this Agreement at any time without notice or consent.
- CHOICE OF LAW AND FORUM. The laws of the State of California shall govern this Agreement, and the parties hereby consent to exclusive jurisdiction and venue in the County of Santa Clara. Any dispute shall be submitted to binding arbitration before a retired judge at JAMS (jamsadr.com) in San Jose, California according to the applicable JAMS commercial rules of arbitration. If the parties cannot agree on an arbitrator, then JAMS, in accordance with its rules, shall appoint a retired judge who has experience in handling the disputed issues. The parties shall evenly divide the costs of arbitration.
- SEVERABILITY. If any provision of this Agreement is held to be unenforceable under applicable law, such provision shall be excluded from this Agreement, and the balance of this Agreement shall be interpreted as if such provision was so excluded and shall be enforceable in accordance with its modified terms.
- MERGER. This Agreement and its underlying Insertion Order represents the entire understanding between the parties with respect to the subject matter hereof and supersedes all previous understandings, written, oral or implied. This Agreement may only be amended with the written consent of the parties, and no oral waiver or amendment shall be effective under any circumstances. In the event of a conflict of the terms of this Agreement and the underlying Insertion Order, the terms of the Insertion Order shall govern.
- AGREEMENT BINDING. This Agreement shall be binding upon the parties, their assigns, successors, heirs, affiliates, directors, shareholders, officers, employees and/or agents.
- FORCE MAJEURE. Neither party shall be held responsible for delay or failure in performance hereunder caused by acts of nature, strikes, embargoes, fires, war, or other causes beyond their reasonable control.
- HEADINGS.The headings used herein are for convenience only and shall not be deemed to define, limit or construe the contents of any provision of this Agreement.
- NOTICES. Except as explicitly stated otherwise, legal and other notices shall be served on Medley.com Incorporated at 220 Humboldt Ct, Sunnyvale, CA 94089 or to you at the email address as listed on your Insertion Order. Notice shall be deemed given 24 hours after email is sent, unless the sending party is notified that the email address is invalid. Alternatively, Medley may provide notice by certified mail, postage prepaid and return receipt requested, to the address that you provided during the registration process. In such case, notice shall be given 3 days after the date of mailing.
- WAIVER. Failure to enforce any provision of this Agreement shall not constitute a waiver of any term hereof. No waiver of a breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provision hereof, and no waiver shall be effective unless granted in writing and signed by an authorized representative of the waiving party.
- SUBMISSION BY MAIL, EMAIL OR FACSIMILE. The Insertion Order may be mailed, emailed or faxed by either party and will be deemed an original.
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