The following terms and conditions shall govern the placement and delivery of advertising in the Purchaser\’s Site(s) as set forth in the insertion order (\”IO\”), executed by and between RCN Studios, Inc (\”RCN\”, \”RCN Studios\”, \”we\”, \”us\”) and the company, corporation, or other legal entity (\”Publisher\”, \”you\”) whose details are specified in the IO. Each of RCN and Publisher will be referred to as a “Party”, and both collectively, the “Parties”. In the event of any inconsistency or discrepancy between the terms in the body of this Agreement and any of the exhibits, including the IO, the exhibits shall supersede and govern with respect to such inconsistency.
1. Services.
1.1. Subject to the terms and conditions of this Agreement, we shall provide you with our Services comprising of the ability to place advertisement and other content of third parties (\”Ads\”) on the Site(s), through the use of our online platform. Our Services also include the management and delivery of all such advertisement in the form requested by you, and in accordance with the specifications and policies to be provided to us by you, prior to such placement (the \”Services\”). Publisher may implement the Services only on its approved properties as set forth in a given IO (the \”Site(s)\”). Any change or amendment to the list of Site(s) must be done in writing and approved in advance by us.
1.2. We will perform our obligations under this Agreement pursuant to our sole professional judgment, utilizing our skills, knowledge and experience in online ad optimization, and we will determine, in our professional discretion, matters such as placement, looks and feel of the advertisement, taking into account the details set forth in the IO regarding such matters and specifically any restrictions or limitations on placement requested in the IO. In the performance of the Agreement and the provision of the Services, we may, in our sole discretion, engage and utilize other third parties.
2. Sites
2.1. Following your registration to the Services, you shall provide us with the required information of your Site(s) and the inventory therein, including its size, location and required format.
2.2. You assume sole and full responsibility and liability for any and all financial and legal risks and consequences resulting from the content of the Site(s), and you acknowledge and agree that we will not, and is under no obligation to, review the Site(s) for its content, suitability, appropriateness, lawfulness, compatibility with technical or industry standards or conventions or in any other respect.
2.3. The Site(s), the content therein and the respective terms and conditions thereto, must fully comply with all applicable laws, including data protection and privacy laws, consumer protection laws, advertising laws, unfair competition laws, and laws governing Intellectual Property Rights.
3. Restrictions
You must refrain from –
3.1. interfering with, burdening or disrupting the functionality of the Services;
3.2. editing, modifying, filtering, re-ordering, or changing the order of the content or information contained in any Ad, or removing, obscuring or minimizing an Ad in any way;
3.3. circumventing or manipulating the Services, its validation processes or procedures, or the billing process;
3.4. using any mechanical or other means to artificially inflate traffic counts to advertiser\’s links under an Ad.
3.5. breaching the security of the Services or identifying any security vulnerabilities in it;
3.6. providing false, inaccurate, unlawful, deceptive or misleading inventory;
3.7. breaching any applicable terms, guidelines, agreements and/or any policies of the advertising platforms of Facebook, Apple, Google Android and Amazon Android with respect to Publisher’s performance under this Agreement, with respect to both mobile and internet;
3.8. collecting or processing personal information regarding any individual, without their explicit consent; and
3.9. posting, making available, disseminating, transmitting, providing Links to, or otherwise communicating through the Site(s), any content which may be considered to be unlawful, malicious or is considered to be restricted or prohibited content under industry standards.
We may, at any time, and without prior notice to you, remove, suspend or cease, temporarily or permanently, a campaign from a Site(s), without any liability to you, if we, in our sole discretion determine that the content of such Site(s) violate the provisions of this Agreement or our guidelines and instructions regarding such content.
4. Consideration.
4.1. In consideration for providing its services and performing all its other obligations under the Agreement (including without limitation, in case of pre-paid or fixed price campaigns, completion of all agreed terms and conditions by Publisher, subject to RCN’s full satisfaction), RCN shall pay the Publisher the agreed consideration detailed in the Insertion Order. Unless otherwise agreed in the IO, RCN will pay Publisher its respective portion of the Revenues, in accordance with the revenues statement produced by RCN through its system, within sixty (60) business days following the end of the calendar month for which payment is due. For the removal of any doubt, we will not be required to transfer any funds to you unless we receive the respective consideration from the advertisers in connection with such Site(s). Publisher acknowledges and agrees that RCN may, at its sole discretion, discount, credit back or accrue a credit against revenue shares already provided to the Publisher for transactions which were deemed to be non Qualified Transactions following payment. All payments due under this Agreement are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including without limitation VAT) (collectively, “Taxes”). Publisher will be responsible for payment of all Taxes and any related interest and penalties resulting from any payments made hereunder, provided however that we will withhold any tax required under applicable law, unless a duly issued certificate from the relevant tax authorities are provided.
4.2. For the purposes of this Agreement the following terms shall have the meaning ascribed next to them:
• “Revenues\” means the revenues actually received from advertisers in relation to a Qualified Transaction, as part of the Services.
• “Qualified Transaction” means a transaction that occurs when a bona fide Internet user views or fulfills some kind of actions (as agreed between the parties) in relation to the Ad that appears in one of the Sites; it is hereby clarified that transactions due to injection traffic, bot traffic, automatic injections by toolbars or any kind of fraudulent activities shall not be considered Qualified Transactions.
5. Publisher\’s Representations and Warranties.
Publisher represents and warrants that:
5.1. Publisher has all necessary right, power and authority to enter into this Agreement and to perform the acts required of Publisher hereunder.
5.2. all of the information provided by you to us is correct and current.
5.3. you are the owner of each Site and the Intellectual Property Rights thereunder or are legally authorized to act on behalf of the owner of such Site(s) or Intellectual Property Rights, as the case may be, for the purposes of this Agreement;
5.4. Publisher has all necessary right, power and authority to enter into this Agreement and to perform the acts required of Publisher hereunder.
5.5. Publisher further represents and warrants that the Site(s) and any material displayed therein: (i) complies with all applicable laws, statutes, ordinances and regulations; (ii) does not breach and has not breached any duty toward or rights of any person or entity including, without limitation, rights of intellectual property, publicity or privacy, or rights or duties under consumer protection, product liability, tort, or contract theories; (iii) does not include and does not present any unlawful content or unlawful speech and (iii) does not include restricted content as set forth in the IO.
5.6. Each Site is in compliance with all applicable laws and regulations that may apply to Internet advertising, including, but not limited to the Children\’s Online Privacy Protection Act, the Can-Spam Act of 2003, the Federal Trade Commission Act and the Digital Millennium Copyright Act.
5.7. Publisher shall obtain all consents, authorizations and clearances from end users of the Publisher Site(s) required in connection with the use of cookies, beacons, and other technologies. Publisher shall ensure that the Publisher Site(s) shall provide or make available to users of each Publisher Site(s) a privacy notification in a conspicuous manner (via a privacy policy or other method appropriate for the type of such Publisher Site) which (i) complies with all applicable laws, rules and regulations; (ii) to the extent applicable to the type of such Publisher Site, discloses to users of such Publisher Site that cookies, web beacons and other technologies that may be used in connection with such Publisher Site; (iii) fully and accurately disclosed to such users Publisher\’s policy regarding the collection, use and disclosure of users’ private information and (iv) if such Publisher Site is accessible via hypertext transfer protocol (http), provides a link to http://www.networkadvertising.org (or similar) and a statement that users can click on such link for information on how to opt-out of the use of such technologies for the delivery of more relevant advertising,
5.8. Without derogating from the above, Publisher acknowledges that cookies, web beacons and other technologies may be used by us in connection with the Services in order to collect and use data regarding advertising performance and end user interests.
6. Term and Termination
6.1. The term of the Agreement (and the IO) will commence on the Start Date of the first IO between you and us, and shall remain in force for twelve (12) months, following which it shall be automatically renewed for additional twelve-month periods unless terminated at least five (5) days\’ prior to the end of each such additional period; Upon termination of the Agreement: (i) all undisputed payments that have accrued prior to expiration or termination will be payable in full within forty five (45) days thereof; and (ii) RCN\’s obligations relating to the Services will terminate. Any individual campaigns may be paused or cancelled upon 48 hours written notice to the other party.
6.2. Notwithstanding any remedies that may be available to us under any applicable law, we may terminate this Agreement immediately upon notification, in each of the following circumstances –
6.2.1. We believe that you have materially breached this Agreement, abused your rights to use the Services or became involved in legal proceedings that in our discretion interfere with the performance of this Agreement;
6.2.2. We are so required by law, regulation, order, or request of a competent governmental authority or agency; or
6.2.3. Legal or business circumstances, unknown to us upon the Effective Date, are introduced by third parties (including courts or governmental authorities) after the Effective Date, and such circumstances materially and adversely affect our costs or potential liability associated with our provision of the Services.
6.3. All provisions of this Agreement which by their nature should survive termination, will survive termination, including the following sections: Consideration, Term and Termination, Intellectual property, Disclaimer of warranty, Limitation of liability, Indemnification and Governing law and jurisdiction.
7. Intellectual Property Rights
7.1. All rights, title and interest in and to the Services, including all Intellectual Property Rights subsisting in the Services, and any goodwill associated with it, including computer code, graphic design, layout and the user interfaces of the Services, and all derivatives, improvements and variations thereof, are and will remain at all times, owned by, or licensed, to us. This Agreement does not grant you any rights to or in connection with, the Services. We do not claim any ownership of the Intellectual Property Rights that may subsist in the Site(s) or the Ads.
7.2. You may not adapt or use otherwise any name, mark or logo that is identical, or confusingly similar to any of our marks and logos. You must avoid any action or omission which may dilute, or tarnish the goodwill of RCN.
7.3. Publisher hereby grants RCN and any of its related affiliates a perpetual, irrevocable, fully paid-up, worldwide, sublicenseable right and license to use, copy, modify, distribute and otherwise use all data collected through or derived from the cookies, beacons, and other technologies used by RCN in the provision of the Services.
8. Changes in the Services; discontinuation
8.1. We may, but are not obligated to, maintain the Services with periodic releases of bug fixes, code updates or upgrades. We will determine, at our discretion, the frequency and scope of such releases and you will have no plea, claim or demand against us or our directors, officers, employees, agents, advisors, consultants, subcontractors and assignees (collectively, our “Staff”), for any of these releases or the lack thereof.
8.2. We may also, at any time and without prior notice, change the layout, design, scope, features or availability of the Services.
8.3. Such changes, by their nature, may cause inconvenience or even malfunctions. YOU AGREE AND ACKNOWLEDGE THAT WE DO NOT ASSUME ANY RESPONSIBILITY WITH RESPECT TO, OR IN CONNECTION WITH THE INTRODUCTION OF SUCH CHANGES OR FROM ANY MALFUNCTIONS OR FAILURES THAT MAY RESULT THEREFROM.
8.4. We may suspend the provision of the Services, in whole, or in part, for all users, or for certain users, for periodic maintenance or similar purposes, without any liability to you. We will make efforts to provide you prior notice of any planned down-time of the Services due to maintenance.
9. DISCLAIMER OF WARRANTY
THE AVAILABILITY AND FUNCTIONALITY OF THE SERVICE DEPEND ON VARIOUS FACTORS AND ELEMENTS, INCLUDING SOFTWARE, HARDWARE, SERVICES AND COMMUNICATION NETWORKS, SOME OF WHICH ARE PROVIDED OR CONTROLLED BY THIRD PARTIES. THESE FACTORS ARE NOT FAULT FREE. RCN DOES NOT WARRANT OR GUARANTEE THAT THE SERVICE WILL OPERATE WITHOUT DISRUPTION, ERRORS OR INTERRUPTIONS, OR THAT IT WILL BE ACCESSIBLE, OR AVAILABLE AT ALL TIMES, OR IMMUNE FROM UNAUTHORIZED ACCESS OR ERROR FREE.
YOU ACKNOWLEDGE THAT GIVEN THE MULTITUDE OF FACTORS THAT AFFECT THE EFFECTIVENESS OF ADVERTISING CAMPAIGNS, INCLUDING THE END-USER’S BEHAVIOR, THE PRESENCE OF COMPETING ADVERTISERS AND TECHNOLOGICAL LIMITATIONS, THE SERVICE AND THE ADVERTISING CAMPAIGN MAY NOT PRODUCE THE OUTCOME YOU DESIRED, ANTICIPATED OR EXPECTED. WE DO NO WARRANT THAT YOUR USE OF THE SERVICE WILL RESULT IN ANY PARTICULAR OUTCOME, INCLUDING REVENUE, EXPOSURE, WEBSITE TRAFFIC, AND TRAFFIC ORIGINATING FROM A PARTICULAR LOCATION, CONVERSION RATE OR ANY OTHER METRIC INCLUDING LEVEL OF IMPRESSIONS OF, ACTIONS OR VIEWS ON ANY AD, THE TIMING OF DELIVERY OF SUCH IMPRESSIONS, ACTIONS AND/OR VIEWS, AND THE RELEVANCY OF THE COMMERCIAL ADS SHOWN UNDER AN IO.
THE SERVICE IS PROVIDED FOR USE ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. RCN AND ITS STAFF DISCLAIM ALL WARRANTIES AND REPRESENTATIONS, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, LIKELY-RESULT, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, NON-INFRINGEMENT, TITLE, COMPATIBILITY, PERFORMANCE, SECURITY OR ACCURACY. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE, LIKELY-RESULT OR PERFORMANCE OF THE SERVICE, WHETHER OR NOT MADE BY ANY OF OUR STAFF, WHICH IS NOT EXPRESSLY CONTAINED IN THESE TERMS, SHALL BE DEEMED TO BE A WARRANTY BY RCN FOR ANY PURPOSE, OR GIVE RISE TO ANY LIABILITY OF RCN OR OUR STAFF WHATSOEVER.
10. LIMITATION OF LIABILITY
RCN AND ITS STAFF WILL NOT BE LIABLE TO THE MAXIMUM EXTENT PERMITTED BY LAW, FOR ANY INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, STATUTORY, INCIDENTAL OR CONSEQUENTIAL DAMAGE OR LOSS (INCLUDING LOSS OF PROFIT, BUSINESS EARNINGS, REVENUE, WEBSITE TRAFFIC, OR DATA), COSTS, EXPENSES AND PAYMENTS, EITHER IN TORT, CONTRACT, OR IN ANY OTHER FORM OF LIABILITY, ARISING FROM, OR IN CONNECTION WITH THE USE OF, OR THE INABILITY TO USE THE SERVICE, ANY FAILURE, ERROR, OR BREAKDOWN IN THE FUNCTION OF THE SERVICE, ANY FAULT, OR ERROR MADE BY THE STAFF OR ANYONE ACTING ON ITS BEHALF, ANY COMMUNICATION WITH RCN, OR ANY DENIAL, CANCELATION OR REVOCATION OF THE SERVICE. RCN IS NOT RESPONSIBLE FOR ANY WEB SITE OR APPLICATION THAT CAN BE LINKED FROM ANY ADVERTISMENT PLACED ON THE SITE(S) OR FOR THE RESULTS OF ANY ACT OR OMISSION OF ANY ADVERTISER PLACING SUCH AD OR ANY OTHER OF OUR SERVICE PROVIDERS.
IN ANY EVENT, OUR AND OUR STAFF’S TOTAL, MAXIMUM AND AGGREGATE LIABILITY TO YOU FOR DIRECT DAMAGES SHALL BE LIMITED TO THE HIGHER OF (I) TOTAL FEES ACTUALLY PAID TO US IN THE THREE (3) MONTHS PRECEDING THE EVENT PURPORTEDLY GIVING RISE TO THE DAMAGE; OR (II) US$1,000. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, WE WILL BE FULLY RELEASED FROM LIABILITY TO YOU IF YOU HAVE BREACHED THE AGREEMENT.
11. Indemnification
11.1. By Publisher: You agree to indemnify, defend and hold harmless, RCN and its Staff, at your own expense and immediately after receiving a written notice from RCN, from and against any damages, liabilities, losses, costs, expenses and payments, including reasonable attorney’s fees and legal expenses, to the extent they result from your breach of this Agreement or any provisions or representation or warranty herein.
11.2. By RCN: At the request of Publisher, RCN agrees to indemnify and defend (or settle), indemnify and hold Publisher and its Staff harmless, from and against any damages, liabilities, losses, costs, expenses and payments, including reasonable attorney’s fees and legal expenses, finally awarded against Publisher by a court of competent jurisdiction or as part of a settlement for the benefit of a third party, arising out of or in connection with any claim that Ads provided by RCN and used by Publisher in a manner approved by RCN in accordance with the terms of this Agreement, violate the intellectual property rights of a third party.
12. Governing law and jurisdiction
12.1. Regardless of your place of residence or where you access or use the Services from, this Agreement, your use of the Services and any dispute arising therefrom, or in connection with you and RCN, will be governed by and construed exclusively in accordance with the laws of the Province of Ontario, Canada.
13. General
13.1. The Agreement along with the IO constitutes the entire agreement between you and RCN with respect to the Services and supersedes any and all other prior or contemporaneous agreements or understandings. No waiver, concession, extension, representation, alteration, addition or derogation from the Agreement, or pursuant to the Agreement, will be effective or binding unless consented to explicitly and executed in writing by an RCN authorized representative.
13.2. Failure on the part of RCN to demand performance of any provision of the Agreement will not constitute a waiver of any right under the Agreement.
13.3. You may not assign or delegate this Agreement or any of your rights and obligations hereunder, without our express prior written consent. Any purported assignment, in contravention of the above will be null and void. We may assign or delegate this Agreement in its entirety, or any of our rights and obligations hereunder, without the need for your specific consent, to our corporate group affiliates, or upon a merger, acquisition, change of control or the sale of all or substantially all of its equity or assets relating to RCN or the Services. With such assignment or delegation of the entire Agreement, we are fully released from all our duties, liabilities and obligations under this Agreement.
13.4. If any provision of the Agreement is held to be illegal, invalid, or unenforceable by a competent court, then the provision will be performed and enforced to the maximum extent permitted by law, and the remaining provisions of the Agreement will continue to remain in full force and effect.