NETWORK PARTICIPATION AGREEMENT
WHEREAS, Company owns and/or operates the websites listed on the completed Request To Join form submitted with this completed agreement (the “Site”);
WHEREAS, Openfilm manages a network of websites (the “Openfilm Media Network”) for which Openfilm provides certain advertising services, including advertising sales representation;
WHEREAS, Company desires to become part of the Openfilm Media Network and engage Openfilm as its advertising sales representative for the sale of Advertising on the Site, and Openfilm desires to accept such engagement.
NOW THEREFORE, in consideration of the mutual covenants made hereunder, the Parties hereby agree as follows:
1. Company Obligations
1.1 Appointment; Rights Granted.
(a) Company hereby appoints Openfilm as its non-exclusive third-party representative for the sale of Advertising (as defined below) on the Site during the Term.
(b) In connection with Company’s appointment of Openfilm as its sales representative, Company agrees to provide Openfilm with the necessary sales and marketing resources reasonably required to support Openfilm’s sales efforts.
(c) Openfilm shall have the right to contract with third parties to facilitate the sale and delivery of Advertising under this Agreement (“Third Party Service Providers”).
(d) Company agrees to grant Openfilm the right to use any unsold impressions for the placement of house ads for the promotion of the Openfilm Media Network, Openfilm’s and its affiliates’ web sites, or other partner sites, the amount of which will be determined by the Parties. In addition, Company may provide Openfilm with creative for use by Openfilm, in Openfilm’s sole discretion, for house ads for the promotion of Company and the Site on other Openfilm Media Network sites. “Advertising” means any material sold by Openfilm for display on the Site that promotes a brand or a product or a service through advertising banners, text links, buttons, jump pages and similar promotional devices as well as all elements of a sponsorship or promotion.
1.2 Traffic Assignment.
Company hereby authorizes Openfilm to aggregate the Site's traffic under Openfilm’s name with any third party traffic and audience measurement and/or reporting services (e.g., Certifica, Comscore, and Ibope). Company shall retain the right to have the Site traffic independently tracked and reported by such reporting services to the extent eligible. Company agrees, upon request by Openfilm, to execute any and all documents and take any actions necessary to effectuate this assignment of traffic.
1.3 Implementation of Tags and Standard Ad Units.
Company shall implement any advertising tags provided by Openfilm to Company on the Site, in a location and manner as reasonably directed by Openfilm, for the delivery and measurement of Advertising. In addition, Company shall implement Openfilm’s standard ad unit sizes on the Site in accordance with the specifications set forth on Exhibit A attached hereto.
1.4 Site Information.
Company shall furnish to Openfilm all traffic reports broken down by Site sections and pages, audience studies, demographic and behavioral statistics, and any other information regarding the Site and its users as is reasonably requested by Openfilm and reasonably available to Company. Company also acknowledges that in the course of its performance hereunder, Openfilm or its Third Party Service Providers may collect certain nonpersonally identifiable, aggregated data about the Site and its users. The Company grants Openfilm and its Third Party Service Providers the right to use such collected data for production of case studies, publicity releases, aggregate audience measurements, and for such other purposes as Openfilm and its Third Party Service Providers deem reasonably appropriate.
1.5 Site Content.
Company will not include, or provide links to, on the Site any material that is or may be considered: (a) libelous, pornographic, obscene, or defamatory; (b) an infringement of any third party's intellectual property rights (including copyright, patent, trademark, trade secret or other proprietary rights); (c) an infringement on any third party’s rights of publicity or privacy, or (d) contain any viruses or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.
1.6 Site Operations.
Company will not: (a) include, or provide links to, on the Site any artificial click-mechanism or any direct or indirect incentive intended to cause a user to click on Advertising that is displayed on the Site in exchange or as consideration for such clicks, cash, cash equivalents or other tangible benefit or (b) take any action or encourage any conduct in relation to its Site that is adverse to the interests of advertisers that advertise on the Site. Company will provide prior written notice to Openfilm if the Site is shut down, ceases operations or becomes otherwise unavailable for any period of time exceeding six (6) hours. Any attempt by Company to affect the generation of impressions on the Site so as to conflict in any way with the Agreement, including without limitation the refreshing of pages, shall result in the immediate disqualification of Company from participation in the Openfilm Media Network and forfeiture of any and all unpaid payments.
1.7 Use of Tags, Cookies; Opt-Out.
2. Openfilm Obligations
2.1 Sales Efforts.
Openfilm will use its commercially reasonable efforts to solicit and sell Advertising on the Site at rates determined by Openfilm, in its sole discretion, all in accordance with the rights, licenses and privileges granted to Openfilm in Section 1.1.
2.2 Billing and Collections.
Openfilm will render billing statements to advertising agencies, buying services and clients for the Advertising sold by Openfilm and use commercially reasonable efforts to collect all corresponding amounts due from such advertising agencies, buying services and clients. In the event any amounts remain unpaid by any advertising agency, buying service or client after Openfilm considers it has exhausted all commercially reasonable efforts to collect, Openfilm agrees upon Company’s request to take all steps reasonable necessary to assign the collection right to Company to pursue. In the event any payment for Advertising is remitted directly to the Company rather than to Openfilm, the Company agrees to make prompt payment to Openfilm of any and all such payments within (30) days.
2.3 Provision of Tags.
Openfilm will provide the Company, only for use in the performance of this Agreement, the advertising and statistical tags for implementation by Company on the Site pursuant to Section 1.4. Company and Openfilm shall cooperate to provide any and all technical assistance necessary to enable the delivery of Advertising pursuant to this Agreement.
2.4 Ad Delivery.
All Advertising sold by Openfilm or its Third Party Service Providers under this Agreement shall be served exclusively using Openfilm’s third party ad serving technology (or the ad serving technology of its Third Party Service Providers, as determined by Openfilm), which will be the official counter of all Advertising impressions and other metrics used for billing and payment.
Within fifteen (15) days after the end of each calendar month during the Term, Openfilm will deliver to Company a report detailing the number of impressions generated on the Site, revenues generated from Advertising sold, and the corresponding payment to be invoiced by Company to Openfilm.
Openfilm shall be responsible for all interaction with any advertisers, or prospective advertisers, on the Site, including solicitations, handling of creative materials, and management of campaigns.
3.1 Rates Per Insertion Order.
In consideration for the terms and conditions set forth in this Agreement, Openfilm will generate ad insertion orders (the “IO”) on a per order bases which may be delivered via provided email address or other means as chosen by Openfilm in its sole discretion. The IO will include details and an overview of the potential ad campaign as well as the rate associated with such campaign (the “Rate”).. After a pre-determined period of time from the Company’s receipt of the IO, ,the ad will automatically begin serving in the placement and the Campaign will begin.
3.2 Invoice and Payment.
Company shall invoice Openfilm on a monthly basis following the receipt of the report by Openfilm as set forth in Section 2.5. The Rate shall be paid to Company on or before sixty (60) days after receipt of invoice. To ensure timely payment, the Company must notify Openfilm of any changes in its Network account information, including change of address, phone number or email address.
3.3 Affiliate Billing.
Company agrees that Openfilm may, upon thirty days (30) written notice to Company, assign its rights and obligations under this Agreement with respect to IPs originating from one or more countries to any Openfilm Affiliate (as defined below) as designated by Openfilm. In the event of the foregoing, beginning on the first calendar month after the date of assignment, Company shall invoice the Openfilm Affiliate for the Rate generated in connection with the IPs originating from country or countries assigned to such Openfilm Affiliate and the corresponding Rate shall be paid to Company by such Openfilm Affiliate, in accordance with the terms and conditions of this Agreement.
“Affiliate” shall mean, with respect to any entity, any other entity Controlling, Controlled by or under common Control with such entity, whether directly or indirectly through one or more intermediaries.
4. Marketing & Public Relations
Openfilm shall have the right to refer Company as a customer of Openfilm, either on an individual basis or as part of a list of some or all of Openfilm’s customers. In addition, Company agrees to allow Openfilm to use Company’s name, logo and the Site URL on the Openfilm Media Network web site in connection with the foregoing, and to use Company’s name, logo and Site URL in marketing materials and press releases promoting the Openfilm Media Network. Except as otherwise set forth in this Section 4, neither Party shall make any public statement or press release regarding this Agreement without the other Party’s prior written approval.
5. Representations & Warranties
5.1 Mutual Representations & Warranties.
Each Party represents and warrants (i) that it has the authority to enter into this Agreement and to perform its obligations hereunder, (ii) that it has the right to grant the rights granted to the other party hereunder, and (iii) it has obtained and shall comply with all required authorizations, approvals, licenses or permits from all government authorities or other third parties in order for it to enter into and perform its obligations under this Agreement.
5.2 Company Representations & Warranties.
Company further represents and warrants: (a) that it has the authority to make the Site available for Advertising and collect compensation for such Advertising; and (b) that the execution and performance by it of this Agreement will not violate, breach or conflict with, or have the effect of violating, breaching or causing a conflict with, any other agreement to which it is a party.
6. Indemnification; Limitation of Liability
Each Party hereby (the "Indemnifying Party") agrees to indemnify, defend and hold harmless the other Party, its Affiliates, and their respective officers, directors, employees, agents and affiliates (the other Party, its Affiliates, and their respective officers, directors, employees, agents and affiliates being referred to as "Indemnified Parties") from and against any and all third party claims, costs and expenses (including reasonable attorneys fees) damages, causes of action, liabilities and losses (collectively, "Losses") arising out of (i) a breach of any obligation, representation or warranty made by the Indemnifying Party; and (ii) the Indemnifying Party’s failure to comply with applicable federal, state or local laws and regulations, including but not limited to privacy, telecommunications and information security. The Indemnified Party shall promptly notify the Indemnifying Party in writing of any claim, action or demand for which indemnity is claimed. The Indemnifying Party shall be entitled, at its expense, to control the defense of any such claim. Neither party shall, without the prior written consent of the other party, settle, compromise or consent to the entry of any judgment with respect to any pending or threatened claim unless the settlement, compromise or consent provides for and includes an express, unconditional release of all claims, damages, liabilities, costs and expenses, including reasonable legal fees and expenses, against the indemnified party.
6.2 Disclaimer; Limitation of Liability.
OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER OPENFILM NOR ITS AFFILIATES MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE SERVICES TO BE PROVIDED BY OPENFILM OR ITS AFFILIATES UNDER THIS AGREEMENT. THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE ON AN "AS IS" BASIS AT COMPANY’S SOLE RISK. IN NO EVENT SHALL OPENFILM OR ITS AFFILIATES BE LIABLE TO COMPANY FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT OPENFILM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE LIABILITY OF OPENFILM FOR DAMAGES OR ALLEGED DAMAGES HEREUNDER, WHETHER IN CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, IS LIMITED TO, AND WILL NOT EXCEED, AN AMOUNT EQUAL TO THE NET REVENUE EARNED BY OPENFILM LESS THE RATE PAID TO COMPANY DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM.
7. Term & Termination
This term of this Agreement shall commences upon the Effective Date and continue for a period of one (1) year unless earlier terminated as provided herein (the “Term”). The Term shall automatically renew for additional periods of twelve (12) each.
7.2 Termination for Cause.
Either Party may terminate this Agreement immediately: (i) if the other Party files a petition for bankruptcy, becomes insolvent, or makes an assignment for the benefit of its creditors, or a receiver is appointed for the other Party or its business; (ii) upon the occurrence of a material breach of a material provision by the other Party if such breach is not cured within ten (10) days after written notice is received by the breaching Party identifying the matter constituting the material breach; or (iii) by mutual consent of the Parties. In addition, in the event the number of Site impressions from IPs originating in the United States or other countries of Openfilm’s designation falls below an acceptable level in any given month, as determined by Openfilm in its sole discretion, ,Openfilm shall have the right to terminate this Agreement upon notice to Company.
7.3 Termination for Convenience.
Either party may terminate this Agreement at any time during the Term for any or no reason by providing at least thirty (30) days prior written notice of such termination.
7.4 Effect of Termination; Survival.
Upon termination of this Agreement: (i) all rights granted in this Agreement by either party to the other party shall automatically terminate and be of no further force or effect, (ii) each party will immediately cease using or displaying the intellectual property of the other party described herein, (iii) each party shall return or destroy all Confidential Information relating to the other party then in its possession and (iv) Company will remove all Openfilm tags from the Site. Notwithstanding the foregoing, all terms of this Agreement, which by their nature extend beyond its termination, remain in effect until fulfilled, and apply to respective successors and assigns.
8. Miscellaneous Provisions
All notices and approvals desired or required to be given to either Party hereunder shall be in writing and shall be deemed given when delivered via (i) certified mail, return receipt requested, all charges prepaid, (ii) Federal Express, UPS One-Day Service, or other similar overnight courier service, with proof of sending, or (iii) hand delivery, with acknowledgement of receipt, transmission, in each case to the other Party’s address set forth herein or to such other address as either Party may designate to the other in writing.
Neither Party may assign this Agreement, in whole or in part, without the other Party’s prior written consent. Notwithstanding the foregoing, Openfilm may assign this Agreement without the consent of Company in the case of a merger, reorganization, acquisition, consolidation, or sale of all, or substantially all, of its assets. Without limiting the foregoing, this Agreement will inure to the benefit of and bind the Parties’ respective successors and permitted assigns.
8.3 Force Majeure.
Neither Party shall be considered in default of, or to have breached any provision of, this Agreement as a result of any delay, failure in performance or interruption in service resulting directly or indirectly from acts of God, acts of civil or military authorities, civil disturbances, wars, terrorism, strikes or other labor disputes, fires, floods, storms, explosions or any other cause beyond the reasonable control of the affected Party.
Neither Party shall disclose any Confidential Information to any third party (other than its employees, directors, representatives, accountants, counsel, in their capacity as such, on a need to know basis so long as they are bound by confidentiality obligations at least as stringent as those set forth in this Agreement) nor use such Confidential Information for any purpose not permitted under this Agreement.
“Confidential Information” includes information disclosed by one Party to the other which is or should be reasonably understood to be confidential or proprietary to the disclosing party or any information which has been identified as Confidential Information by the disclosing party and includes, but is not limited to, the existence of, and the terms and provisions of, this Agreement and any information about the sales, costs and other unpublished financial information, product and business plans, projections, marketing data, and sponsors of either party. “Confidential Information” shall not include information (a) already lawfully known to or developed by a party without reference to the other party’s Confidential Information, (b) disclosed in published materials, (c) known to the public, (d) lawfully obtained from any third party without an obligation of non-disclosure, or (e) required to be disclosed by law.
8.5 Governing Law; Jurisdiction.
This Agreement shall be governed by construed in accordance with the laws of the State of Florida, without regard to principles of conflicts of laws. Any dispute, controversy or other claim arising out of this Agreement shall be resolved in an appropriate state or federal court within Miami-Dade County, Florida. The Parties each agree that they are subject to the personal jurisdiction of the state and federal courts within Miami-Dade County, Florida, and each waives the right to challenge the personal jurisdiction of those courts over it.
8.6 Entire Agreement.
This Agreement represents the entire understanding of the Parties with respect to the subject matter hereof and supersedes all prior agreements and understandings relating thereto, whether written or oral. No amendments or modifications may be made to this Agreement except in a writing signed by the Parties.
8.7 Defaults; No Waiver.
No waiver by either Party of any default hereunder shall constitute a waiver by such Party of any subsequent default, whether such subsequent default is similar in nature to any previously waived default. All remedies under this Agreement or under law or otherwise shall be cumulative and not alternative.
Each provision of this Agreement shall be severable from every other provision of this Agreement for the purpose of determining the legal enforceability of any specific provision.
8.9 Relationship of Parties.
Company and Openfilm are independent contractors under this Agreement, and nothing herein shall be construed to create a partnership, joint venture or agency relationship between Company and Openfilm. Neither party has authority to enter into agreements of any kind on behalf of the other.
Standard Ad Units:
Pre and post rolls in videos with synchronized 300*250 ad unit when applicable
[All ad unit formats to be displayed “above the fold” at all times]
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