Online Advertising Agreement for Hosted Pink Eel Ads
This online advertising agreement (this “Agreement”) is hereby entered into on this _ day of , 20 (the “Effective Date”), by and between PinkEel.com, with its offices located at Unit 41 Castleknock Grange (the “Host Provider”), and “you” meaning the applicant, with your offices located at ______________
“Customer”), on the following terms and conditions:
- General Undertaking/Services.
The Host Provider operates an Internet website located at http://www.pinkeel.com (the “Host Site”) a virtual book,
artwork, and games centre, and is configured to support third party advertisements. Customer wishes to purchase
advertising space (each, an “Advertisement” or “Ad”) on the Host Site to display either text-based descriptions or
banners/buttons of its advertising-based website (the “Advertised Site”), coupled with hypertext pointers or
“hotlinks” which, when one is clicked on by a mouse, transports visitors from the Host Site to the Advertised Site.
Customer hereby engages the services of Host Provider to run Advertisement(s) on the Host Site pursuant to the
terms and conditions set forth herein.
- Submission of Advertisement(s).
The Customer will submit any and all Advertisements to the Host Provider according to Host Provider’s advertising submission specifications provided to Customer in writing. Host Provider may, in its good faith and reasonable
judgment, reject any Advertisement which is not in the proper format, and/or reject any link to an Advertised Site
which is not materially functional and/or which Host Provider considers unsuitable for linking to the Host Site;
provided, however, that Host Provider shall first provide Customer with a detailed description of any non- compliance along with a reasonable opportunity to cure any such defect(s) (subject to all applicable deadlines as
set forth herein). If Host Provider rejects an Advertisement and the Customer is unable or unwilling to comply with
Host Provider’s submission guidelines, then placement and hosting of the applicable Ad shall be deemed cancelled
and Section 10., below, shall apply with respect thereto.
- Fees & Payment Terms/Metrics.
(a) Advertising Fee.
An advertising fee (of €365 ex VAT per annum) will be paid by Customer to Host Provider as compensation for setting up, placing, and operating a specific 24/7 Advertisement unincumbered by any third party (i.e adblock) on the Host Site pursuant to the terms hereof. The Fee shall be set forth in the applicable Insertion Order (attached hereto as Exhibit “A” and incorporated herein by this reference), and due upon execution thereof by the parties.
(b)Host Site Metrics.
Additionally, Host Provider will provide to Customer, on a monthly basis, accurate information with respect to the number of Host Site visitors in general. To the extent that the number of visitors, for any given month, is at least
five percent (5%)
less than as stated in Exhibit “A,” than notwithstanding anything set forth herein to the contrary,
Customer shall be entitled to a twenty percent (20%) discount on its Commission for the applicable month. To the extent that this [5%+] deficit exists for at least [two (2) consecutive months], Customer shall be entitled to terminate this Agreement (as a material breach hereunder by Host Provider) pursuant to the termination provisions set forth herein.
(c) Payments & Taxes.
Customer shall be responsible for interest on all [undisputed] amounts overdue by more than [thirty (30) days] at a
rate of the lesser of [one and one-half percent (1.5%)], or the maximum rate allowable by applicable law, along with
all of Host Provider’s [reasonable and necessary] collection costs, including without limitation [outside] attorneys’
fees and expenses, incurred in connection therewith.
Operational Matters/Ad Positioning/Exclusivity.
The Host Provider reserves the right in its sole discretion to determine all matters concerning the configuration of hardware, software, telecommunications, system components, advertising categories, and other administrative or operational issues for the Host Site as it deems necessary or helpful in the normal course of business.
(a) Ad Positioning.
Host Provider is not providing a guaranteed position to Customer in connection with the Ad(s) placed hereunder,
yet agrees to use reasonable efforts (subject to Host Provider’s standard business practices) to accommodate
Customer’s written requests in connection therewith.
Host Provider agrees not to publish any third party advertisement and/or a link to any third party advertised website on the Host Site if the entity in question is a direct competitor of Customer during the Term (as defined herein). For the purposes hereof, the term “direct competitor” shall include the following entities: Any/all advertisers of a similar nature located within seven (7) kilometres of the customer, as determined by the Host Provider.
Each party (or identified third party) owns its respective websites and all material and content contained in it. Nothing herein grants the other party any right, title, or license in a party’s intellectual property rights, except only that Customer grants to Host Provider the limited, non-exclusive, non-transferable license to set up and display Advertisements (including any identifying marks contained therein) on the Host Site pursuant to the terms hereof and any applicable Insertion Order. Upon termination or expiration of this Agreement, the Host Provider shall promptly deactivate the Advertisement(s). Nothing herein grants either party the right to publish or use any trademark, service mark, logo, and/or other identifying mark of the other party in any advertisement, sales promotion, press release, and/or other publicity or marketing materials without such other party’s prior written consent in each instance [not to be unreasonably withheld]. Notwithstanding the foregoing, a brief, non-defamatory mention by one party of the existence of the arrangement set forth herein (without the provision of details of any kind and/or the use of any identifying marks of the other party) shall not be deemed a breach hereof and/or the
confidentiality provisions set forth below.
Neither party (each, a “receiving party”), along with its directors, officers, employees, agents, advisors,
subcontractors, independent contractors, subsidiaries, and affiliates (collectively its “Representatives”) shall, during the term hereof and for a period of [two (2) years] thereafter, without the other party’s (each, a “disclosing party”) prior written approval in each instance [(not to be unreasonably withheld)], disclose or otherwise make available to any other person or entity (whether acquired on the Effective Date or during the continuance of this Agreement) any information relating to the disclosing party’s business plans, products, advertising, innovations, fees, advertising or product concepts, customers, technology, computer software, computer systems, marketing methods, sales margins, cost of goods, cost of materials, capital structure, operating results, or other business affairs (including without limitation, Host Provider’s fees), or any other proprietary or confidential information of the disclosing party (the “Confidential Information”). The foregoing shall not apply to Confidential Information which: (i) is or becomes known to the general public (other than as a result of the disclosure, directly or indirectly, by the receiving party or its Representative); (ii) was or is made available to the receiving party on a non-confidential basis from a source other than the disclosing party or any affiliate provided that such source is not, and was not, to the receiving party’s [actual/constructive] knowledge, bound by a confidentiality agreement with the disclosing party or any affiliate or otherwise prohibited from transmitting such information by contract, legal or fiduciary obligation to the disclosing party, any affiliate, or any third party; or (iii) is required to be disclosed by law, provided the receiving party gives disclosing party notice and an opportunity to seek an appropriate protective order at its own expense. It is understood that the information required to be held in confidence as herein provided may be disclosed by the receiving party only to Representatives who need to know such Confidential Information for the purposes of fulfilling its obligations hereunder. Such Representatives, prior to any such disclosure, shall be informed of the confidential nature of such Confidential Information and shall agree [in writing] to be bound by the terms hereof. The confidentiality provisions set forth herein shall also apply separately to each subcontractor or independent contractor selected by Host Provider, and Host Provider shall be responsible for informing any such subcontractor of any confidential and proprietary information included in any work subcontracted for hereunder. Host Provider shall have such person agree to be bound [in writing] by confidentiality terms no less stringent than those set forth herein. (b) All Confidential Information furnished to the receiving party by the disclosing party or any third party at the request of the disclosing party shall be and remain the property of the disclosing party. All copies of such Confidential Information in written, graphic, or other tangible forms shall be returned to the disclosing party at any time upon the advance written request of the disclosing party or upon the termination of this Agreement for any reason whatsoever, subject to the terms hereof.
Each party is excused from any failure or delay in performance of responsibilities otherwise imposed by this
Agreement for any cause beyond its reasonable control. Such causes include, without limitation, fires, floods, storms, earthquakes, civil disturbances, disruption of telecommunications, transportation, utilities or necessary supplies, governmental action, computer viruses, and incompatible or defective equipment, software or services not supplied by the excused party. Notwithstanding the foregoing, the affected party shall promptly provide written notice thereof to the other party, which notice shall include a detailed description of the event of force majeure along with the affected party’s best estimate of the length of time such event will delay or prevent performance hereunder. Additionally, the affected party shall use all reasonable efforts to limit the impact of the event of force majeure on its performance hereunder. [If an event of Force Majeure continues for at least twelve 12)] consecutive
weeks, Customer shall have the right to immediately terminate this Agreement pursuant to the terms hereof.]
- Legal Compliance with Advertising Laws, Rules, and Regulations.
Customer acknowledges that it is Host Provider’s business policy to conduct advertising campaigns in general in a manner so as not to: send unsolicited (i.e., spam) email to recipients (unless authorized by appropriate law); promulgate advertising that is, in any way, false or misleading; misuse or misappropriate another party’s intellectual property and/or other third party rights of any kind; send obscene messages to any recipients; and/or use email or other forms of messaging to conduct illegal or immoral activities of any kind as per current, applicable law. Customer and Host Provider each agree not to take any actions inconsistent with this policy, and to make all of each of its employees and agents aware of such policy in order to ensure compliance herewith. A breach of this Section shall be considered a material breach of this Agreement, giving rise to immediate termination rights. Each party further agrees that it will cooperate with the other party in all reasonable respects in its efforts to respect any user’s privacy wishes and requests to be unsubscribed from receiving email. Additionally, in connection with any and all tracking services (i.e., of online users’ personal information and web searching history), the parties hereto acknowledge and agree that the protection of consumer privacy is a priority of Customer and Host Provider. Each of Customer and Host Provider pledges its commitment to protecting the privacy of consumers, taking all commercially practicable steps to maintain such privacy, and adhering to fair information collection practices with respect to each of its performances under this Agreement. Accordingly, each party represents and warrants that it will act in full compliance with all appropriate Trade Commission guidelines and any other applicable laws, rules and regulations then in existence with respect to the collection, use, and sharing of information gathered from consumers.
- Regulation of Certain Content.
The Host Provider may, in its sole good faith discretion, refuse to assist in the publication of any advertising provided by Customer to Host Provider hereunder if: (i) it does not comply with Host Provider’s specific formatting, editorial, and/or publishing guidelines; (ii) it believes in good faith that the Advertised Site, and/or the publication of an Advertisement violates any applicable law, rule, or regulation (including, without limitation, any advertising
- regulations such as the Truth in Advertising regulations, Children’s Online Privacy Protection Act, and/or the CAN-SPAM Act); and/or (iii) it believes in good faith that such Ad copy does not comply with reasonable moral standards
- promulgated by Host Provider and/or society in general. Without limitation on the foregoing, the following will not be
- accepted by Host Provider: (aa) information deemed detrimental to the Host Site and/or any individual or entity;
- (bb) information deemed abusive, profane, incendiary, defamatory, and/or harassing; (cc) any materials or
- information taking the form of, or linking to, a “chain letter,” or pornographic or obscene movies or graphic images;
- or (dd) excessive hotlinks. [Notwithstanding the foregoing, Host Provider shall, prior to any such refusal, provide
- Customer with written notification detailing the reason(s) associated therewith in order to provide Customer with a
- reasonable opportunity to conform the Ad in question.]
If an Insertion Order is not fulfilled as a result of Customer’s cancellation, or if Customer does not provide Host-Provider with the requisite advertising material on or before the day it is due (as set forth in Exhibit “A”) and pursuant to Host-Provider’s reasonable specifications in connection therewith, the space purchased shall be deemed forfeited. In such event, Host Provider shall be entitled to the full charge for such space (i.e., as if the Ad ran). [Notwithstanding the foregoing, no payment obligation shall apply: (i) in connection with any cancellation or missed deadline by Customer due to an event of force majeure (i.e., an event beyond the control of the parties,
including without limitation, weather, strikes, etc.); or (ii) in connection with any cancellation or missed deadline due to or arising out of the breach by, or negligence of, Host Provider. Additionally, the parties hereto agree to negotiate in good faith with respect to the replacement of any such Ad.]
- Liability for Materials.
Host Provider agrees that it will use all commercially reasonable efforts to protect any and all materials supplied to Host Provider hereunder by or on behalf of Customer. Notwithstanding the foregoing, Host Provider will not be liable for any loss, cost or damage thereto [, but only to the extent that any such loss, cost or damage is not due to the negligence or willful misconduct of Host Provider (or its employees or agents). In the event that any such loss, cost or damage arises out of Host Provider’s (or an employee or agent of Host Provider’s) actions or inactions, Host-Provider shall promptly reimburse Customer for all reasonable costs associated with the replacing or fixing such materials].
- Mutual Representations & Warranties.
Each party represents and warrants that it is duly organized, validly existing and in good standing in its State of incorporation, and has full power and authority to enter into this Agreement and fulfil its obligations hereunder. Customer further represents and warrants to Host Provider that the contents of all final information and materials
- provided by Customer to Host Provider hereunder (without modification by Host Provider and when used
- specifically as authorized by Customer) [to the best of Customer’s [actual or constructive] knowledge]: (i) are true
- and accurate in every respect; (ii) do not violate any applicable law, rule or regulation (including any and all
- applicable advertising regulations) and/or the terms hereof; and (iii) do not violate the third party rights of any
- person or entity (including, without limitation, intellectual property, privacy, or publicity rights). Host Provider further
- represents and warrants to Customer the following: (i) Host Provider shall not make any changes to Customer’s
- finally submitted Ad copy without Customer’s prior written approval in each instance, and shall only use any and all
- such information and materials specifically as authorized by Customer and in no other manner and for no other
- purpose; and (ii) The Host Site (in whole and in part), and any materials or information provided to Customer by or
- on behalf of Host Provider hereunder, [to the best of Host Provider’s [actual or constructive] knowledge]: (aa) are
- true and accurate in every respect; (bb) do not violate any applicable law, rule or regulation (including any and all
- applicable advertising regulations) and/or the terms hereof; and (cc) do not violate the third party rights of any
- person or entity (including, without limitation, intellectual property, privacy, or publicity rights).
Each party shall indemnify, defend, and hold the other party harmless from and against any and all costs, damages, loss, or expenses, including, without limitation, [outside] attorney’s fees and related costs, to the extent arising out of a breach by such party hereunder (including, without limitation, its representations and warranties), and/or the negligence or willful misconduct of such party. The indemnified party shall provide the indemnifying party with prompt written notice of any claim and give complete control of its defense and settlement to the indemnifying party, and shall cooperate in all reasonable respects with the indemnifying party, its insurance company and its legal counsel in its defense of such claim, at the indemnifying party’s expense. This indemnity shall not cover any claims in which there is a failure to give the indemnifying party prompt notice, but only to the extent, such lack of notice prejudices the defence of the claim. The indemnifying party may not settle any potential suit hereunder without the indemnified party’s prior written approval (not to be unreasonably withheld, conditioned, or delayed).
- Limitation of Liability.
The parties hereto acknowledge and agree that the following provisions are material conditions of this Agreement
and reflect a fair allocation of risk between the parties:
HOST PROVIDER MAKES NO EXPRESS OR IMPLIED WARRANTY OR REPRESENTATION TO CUSTOMER
THAT OPERATION OF THE HOST SITE WILL BE UNINTERRUPTED, HAVE FULL FUNCTIONALITY AT ALL
TIMES, OR BE ERROR-FREE. HOST PROVIDER WILL NOT BE LIABLE FOR CONSEQUENCES RESULTING
FROM ANY INTERRUPTION OF SERVICE, MALFUNCTION, OR ERROR.
CUSTOMER MAKES NO EXPRESS OR IMPLIED WARRANTY OR REPRESENTATION TO HOST PROVIDER
THAT OPERATION OF THE ADVERTISED SITE WILL BE UNINTERRUPTED, HAVE FULL FUNCTIONALITY AT
ALL TIMES, OR BE ERROR-FREE. CUSTOMER WILL NOT BE LIABLE FOR CONSEQUENCES RESULTING
FROM ANY INTERRUPTION OF SERVICE, MALFUNCTION, OR ERROR.
EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, HOST PROVIDER MAKES NO WARRANTY,
EXPRESS OR IMPLIED, AND DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE,
ACCURACY, INTEGRATION, AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE HOST
EXCEPT FOR THE PARTIES’ RESPECTIVE INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT
SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT TO THE OTHER PARTY FOR ANY
INCIDENTAL, CONSEQUENTIAL, INDIRECT, STATUTORY, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES,
INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE, LOSS OF TIME, INCONVENIENCE, LOST BUSINESS OPPORTUNITIES, DAMAGE TO GOODWILL OR REPUTATION, AND COSTS OF COVER,
REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT
LIABILITY OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
EACH PARTY’S AGGREGATE LIABILITY FOR ANY CLAIMS RELATING TO THIS AGREEMENT WILL BE
LIMITED TO AN AMOUNT EQUAL TO THE SUM OF THE AMOUNTS PAID BY CUSTOMER TO HOST
ANY CLAIMS MADE PURSUANT TO THIS SECTION MUST BE MADE WITHIN ONE YEAR OF THE INCIDENT
TO WHICH THEY RELATE OR FOREVER BE BARRED.
15 Term & Termination.
The term (the “Term”) of this Agreement shall commence as of the Effective Date and continue through and including any period of time that an Insertion Order is in effect (subject to termination as set forth below).
This Agreement may be immediately terminated by either party without further liability or obligation to the other party if: (i) the other party violates any applicable laws, rules, regulations, or ordinances (including, without limitation, any applicable advertising regulations); (ii) the other party otherwise materially breaches any provision, warranty, or representation of this Agreement (and/or violates the non-breaching party’s fair and reasonable “morals clause,” as such term is commonly understood in common law) and, if such breach or violation is curable, it remains un-remedied for a period of [seven (7) days] following receipt of written notice thereof detailing such breach or violation; or (iii) the other party becomes insolvent, makes a general assignment for the benefit of its creditors, suffers or permits the appointment of a receiver for its business, or becomes subject to any proceeding under bankruptcy laws or any other statute or laws relating to the insolvency or protection of the rights of creditors. Termination shall have no effect on the parties’ rights and obligations hereunder with respect to those provisions which, by their very nature, are intended to survive any termination or expiration hereof, including, without limitation, representations & warranties, indemnifications, accrued payment obligations, limitations on liability, export regulations, and confidentiality.
(c) Following Termination.
In the event of any termination hereunder, [with the exception of termination by Customer for material breach by
Host-Provider,] Customer shall pay Host-Provider all amounts due to Host-Provider up through the effective date of termination. Additionally, upon termination of this Agreement, Host-Provider shall transfer to Customer all of Customer’s materials in Host-Provider’s possession or control.
- Disputes, Choice of Law.
The parties hereto agree that any disputes between them respecting the terms hereof shall be submitted to a single arbitrator under proceedings conducted in accordance with Irish law. The award of the arbitrator shall be limited to remedies otherwise available in Court, shall include a written explanation of the decision and shall be binding upon the parties and enforceable in any court of competent jurisdiction.
- Independent Contractors.
The parties hereto are independent contractors with respect to each other and with respect to all matters arising under this Agreement. Nothing herein establishes a partnership, joint venture, association, or employment relationship between the parties and/or any exclusive course of dealing. Without limitation on the foregoing, neither party shall have the right to bind the other party to any agreement, covenant, or obligation of any kind without the prior written consent of such other party in each instance.
Neither party shall assign or otherwise transfer this Agreement, in whole or in part, without the prior written consent of the other party in each instance [such consent not to be unreasonably withheld, conditioned, or delayed].
[Notwithstanding the foregoing, either party may be free to assign this Agreement to any [(a) affiliate of such party;
or (b)] successor entity of such party that assumes all, or a majority of, such party’s assets in writing.