PLEASE READ THE FOLLOWING TERMS AND CONDITIONS IN FULL AND CAREFULLY. YOUR AGREEMENT TO THESE TERMS, ALONG WITH THE CONTENT AND ADVERTISING PARTNERSHIP AGREEMENT, CREATES A LEGALLY BINDING AND ENFORCEABLE CONTRACT BETWEEN YOU AND AMERICAN HOMETOWN MEDIA. IF YOU PARTICIPATE IN THE TRENDING CONTENT PLATFORM PROGRAM YOU ARE AFFIRMATIVELY STATING AND AGREEING THAT YOU ARE IN AGREEMENT WITH THESE TERMS AND CONDITIONS AND FULLY ACCEPT THE COVENANTS, REPRESENTATIONS, WARRANTIES, AND TERMS CONTAINED HEREIN.
These Terms and Conditions govern the Content and Advertising Partnership Agreement (“Agreement”) as entered into by and between You (“Publisher”) and American Hometown Media, Inc. (“Company”) and shall govern the Trending Content Platform and Your use, agreement, and relationship with American Hometown Media, Inc.
1. SERVICES
A. Representation. Publisher grants Company the right to represent one or more Trending Content Platform Units (“Units”) on Publisher Domains to Advertisers and serve Advertisements into the Units through its Advertisement tags. For billing purposes, delivery will be based on Company reporting.
B. Tracking and Reporting. Company will provide Publisher with dashboard access to report on estimated daily net earnings, finalized monthly statements, payments, and other data.
C. Trending Content Platform Units. Publisher agrees to run Units across Publisher U.S. Monthly Pageviews on Publisher Domains via Publisher’s content management system as outlined in the Agreement. For purposes of clarity, Units are not to be trafficked via an ad server.
D. Setup Requirements. Publisher acknowledges that Company exclusively manages the Advertisements placed in the Units on Publisher Domains. To accomplish this, Publisher agrees to connect to Company’s ad server via the Google Multiple Customer Management (MCM) program and both add and maintain Company ads.txt line items across all Publisher Domains.
E. Publisher Domains. Publisher Domains included under these Terms and Conditions are listed in the Agreement. Publisher may opt to add additional domains at any time provided Publisher notifies Company prior to doing so for approval purposes.
2. BILLING AND COLLECTION
A. Publisher’s Net Proceeds. Publisher shall be paid against Monthly Net Collected cash as outlined in the Agreement.
B. Payment Terms. Company shall pay Publisher’s proceeds in U.S. dollars against Net Collected Cash as outlined in the Agreement.
C. Invoicing. Company will invoice Advertisers monthly and use commercially reasonable efforts to collect its accounts receivable; provided, however, that Company is not obligated or required to bring any lawsuit or engage any collection services to recover such accounts receivable. Company does not guarantee that any payment will be made by any Advertiser and Company shall not be liable to Publisher for any non-payment by any Advertiser.
3. COVENANTS, REPRESENTATIONS, AND WARRANTIES OF THE PARTIES
A. Ownership. Publisher Domains are the proprietary property of the Publisher. The Trending Content Platform, underlying technology, code, content and Advertisement tags are the proprietary property of American Hometown Media, Inc. Both the Publisher and the Company acknowledge the ownership rights of the other party with respect to each’s proprietary property. The Publisher hereby expressly agrees not to infringe, duplicate, copy, or use in any way the Trending Content Platform, underlying technology, code, content or advertising tags in any manner outside of the Agreement.
B. Confidentiality. The terms of the Agreement are confidential and neither party will disclose the terms of the Agreement to any other Person (other than the party’s counsel, agents, auditors and/or lenders) without the prior written consent of the other party, except to the extent required by a court or regulatory agency of competent jurisdiction. Notwithstanding the foregoing, Company shall be entitled to disclose the terms of the Agreement as necessary in the ordinary course of its business provided that any Person that receives such information is bound by confidentiality restrictions with respect to any confidential information disclosed by Company.
C. Indemnity. Each party hereby agrees to defend, indemnify, and hold the other party, its Affiliates, and their respective shareholders, members, directors, managers, officers, employees, agents, and successors harmless from all damages, losses, and expenses (including reasonable attorney’s fees) arising from any third-party actions, suits, or claims.
D. Authority. Each of Publisher and Company has all necessary rights and authority to enter into the Agreement on its own behalf. Publisher’s entrance into the Agreement does not conflict with the provisions of any of Publisher’s existing agreements.
E. Quality Assurance. Publisher Domains shall not contain, or contain links to, Objectionable Content. In the event the Company is notified by Advertisement demand partners of Objectionable Content on Publisher Domains, the Company will in turn advise Publisher of these violations in detail via e-mail. Publisher shall make every effort to resolve violations within five (5) business days either by removing all Units from the Objectional Content or removing the Objectionable Content from the Publisher Domains. If Publisher is unable to resolve the violations in a timely manner, the Company reserves the right, at its sole discretion, to cancel the Agreement if the amount of Objectionable Content is at a level detrimental to the Company’s ability to serve Advertisements to Publisher Domains. A termination notice will be provided via e-mail and effective immediately. Upon termination, Publisher agrees to immediately remove from its Publisher Domains any and all Units or other intellectual property made available to Publisher in connection with its performance under the Agreement. All payment obligations accruing prior to the date of termination shall survive until fully fulfilled.
F. Advertisement Content. Company will make every effort to ensure that Advertisers cause all Advertisements not to contain, or contain links to, any Objectionable Content, Malvertising, or Forced Redirects. Publisher recognizes and agrees that Company does not control the content of Advertisements and that if Publisher in good faith believes that an Advertisement contains Objectionable Content, Malvertising, or Forced Redirects, Publisher’s sole recourse shall be to advise Company and Company, Publisher, and the Advertiser shall cooperate to remove or block the Advertisement. Upon request from Publisher, Company will block any Advertisers or Advertiser categories provided by Publisher from all relevant ad units within five (5) business days.
G. Use of Publisher Domains. Publisher hereby represents, warrants, and covenants that (i) use of the Publisher Domains by Company or any of Company’s Advertisers will not infringe upon any third party intellectual property rights, including United States or foreign trademarks, patents, copyrights, rights of publicity, moral rights, music performance or other music-related rights, or any other third-party right, (ii) the Publisher Domains do not and will not contain any content which violates any applicable law or regulation, (iii) the Publisher Domains adhere to all industry mandated legal practices, protections, and regulations that may affect US and Non-US traffic, privacy, data or any other regulations, and (iv) it has all necessary rights and authority to enter into this Agreement and place Advertisements on the Publisher Domains.
H. Privacy Policy. Company and/or some of its advertising partners use third-party advertising companies (“Ad Serving Services”) to serve Advertisements. These third-party advertising companies may employ cookie technology to measure Advertisement effectiveness and may collect information about user visits to a Publisher Domain. As a condition of Company’s entrance into the Agreement, Publisher represents that Publisher Domains at all times will feature easy-to-understand privacy and cookie policies, linked, at a minimum, conspicuously from the Publisher’s relevant sites, with a link that contains the word “Privacy” and “Cookie Policy” that (i) properly discloses the use of the Ad Serving Services in accordance with applicable law (including industry self-regulation or standard practices proposed by organizations such as the Network Advertising Initiative, Privacy Alliance or TRUSTe), including, without limitation, (a) the use of third party advertising technology, and (b) any reporting and/or targeting activities, and (ii) offers the user an opportunity to opt out from such collection and use via a live hyperlink to an opt out service such as the Network Advertising Initiative http://www.networkadvertising.org/managing/opt_out.asp
I. Ad Organizations. Advertisers in various territories require websites to represent compliance with the terms and conditions of certain government bodies or private organizations. Company sales efforts in those territories require compliance with certain standards as set by organizations such as “IASH” (for AU and the UK) or related organizations such as the “IAB” (in Canada and the United States) or such other organization as is or may subsequently be established (together, the “Ad Organizations”). Publisher understands that terms required by these Ad Organizations may be updated and/or revised from time to time and Publisher agrees to such updated or revised terms as they may be communicated to Publisher from time to time, via email, public posting or in a separate signed agreement. Publisher agrees to promptly return any supplementary agreement request of it by Company relating to compliance with such terms or conditions as may be established by Ad Organizations.
J. Fraudulent Activity. Notwithstanding any other provision of the Agreement, Company shall not be liable to Publisher for any Publisher’s Net Revenue arising out of activity that is deceptive or fraudulent in nature (“Fraudulent Activity”) and Publisher shall not directly engage in any Fraudulent Activity. Examples of Fraudulent Activity may include, without limitation, (i) activities that are intended to inflate clicks or Advertisement Impressions, (ii) the provision of false lead information or multiple leads from a single individual, (iii) the display of any Advertisements in pop-ups, pop-unders, exit windows, expending buttons, animation or other similar methods, or (iv) the serving of Advertisements or driving of traffic to such Advertisement, using any downloadable applications. Publisher shall take all steps to prevent any Fraudulent Activity and furthermore will, in all cases, notify Company of any sites that Publisher places tags upon, prior to placing tags, where Company has not previously reviewed and approved said site(s). Company shall consult with Publisher first, but ultimately have sole discretion and shall exercise good faith in determining whether Fraudulent Activity has occurred, and shall have the right to withhold payment of any Publisher’s Net Revenue until final determination of the validity of the activity, provided that Company will give Publisher notice and information used to determine such Fraudulent Activity, in Company’s reasonable discretion. If Company discovers Fraudulent Activity after payment of Publisher’s Net Revenue has been made that derives from such activity, Company may at its option offset the amount of such payment against any future payments to Publisher or, at Company’s written request, Publisher shall immediately repay such payment in full to Company. Any amounts owed to Publisher but withheld or delayed by Company due to Fraudulent Activity will be disclosed to Publisher. Publisher further agrees to provide full cooperation to Company in any investigation of possible Fraudulent Activity, including reasonable access to Publisher’s access logs and other customer and affiliate information related to such investigation.
K. No Other Representations or Warranties. OTHER THAN AS EXPRESSLY SET FORTH IN THE AGREEMENT, PUBLISHER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE PUBLISHER DOMAINS. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, COMPANY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE ADVERTISEMENTS OR ANY VOLUME, POTENTIAL VOLUME OF SALES OR THE LEVEL OF ADVERTISING REVENUE ATTAINABLE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EXCEPT AS EXPRESSLY SET FORTH HEREIN, EACH OF COMPANY AND PUBLISHER EXPRESSLY DISCLAIMS (I) ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND (II) ANY WARRANTY REGARDING THE PUBLISHER DOMAINS, INCLUDING THEIR CORRECTNESS, QUANTITY, QUALITY, ACCURACY, COMPLETENESS, RELIABILITY, PERFORMANCE, TIMELINESS OR CONTINUED AVAILABILITY. EXCEPT AS PROVIDED IN THE AGREEMENT WITH RESPECT TO INDEMNIFICATION, NEITHER COMPANY NOR PUBLISHER SHALL BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR INDIRECT DAMAGES; PROVIDED, HOWEVER, THAT LOST COMPANY’S REVENUE FOR THE REMAINDER OF THE TERM IN THE EVENT OF A BREACH BY PUBLISHER SHALL BE CONSIDERED DIRECT DAMAGES AND SHALL NOT BE EXCLUDED BY THIS PARAGRAPH AS BEING INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR INDIRECT DAMAGES.
4. BREACH OF THE AGREEMENT; TERMINATION
Each party shall have the right to terminate the Agreement if the other party materially breaches any of the terms and provisions of the Agreement; provided that the party in breach must first be notified in writing by the other party specifying the particular breach and given fifteen (15) days within which to cure the breach. If the party in breach fails to cure the breach within fifteen (15) days after receiving such written notice, the other party shall have the right to terminate the Agreement immediately. In the event of a breach by Publisher, Company shall have the rights to (i) withhold any amounts owed or payable to Publisher and to retain and offset such amounts against any damages arising from (or which may arise from) said breach, and (ii) cease selling Advertisements on the Publisher Domains, and remove or disable any Advertisements currently running on the Publisher Domains, until such time as the breach is resolved or the Agreement is terminated. Publisher hereby expressly authorizes and consents to Company withholding and retaining for its own account any of such amounts. For the avoidance of doubt, termination under this Section shall not relieve either party of its obligations arising in periods prior to termination.
5. INDEPENDENT EVALUATION
EACH PARTY ACKNOWLEDGES THAT IT HAS READ THE AGREEMENT AND UNDERSTANDS AND AGREES TO ALL OF THESE TERMS AND CONDITIONS. EACH PARTY ACKNOWLEDGES THAT IT HAS HAD AN ADEQUATE OPPORTUNITY TO CONSULT WITH INDEPENDENT COUNSEL OF ITS OWN CHOOSING PRIOR TO SIGNING THE AGREEMENT. EACH PARTY HAS INDEPENDENTLY EVALUATED THE RISKS AND REWARDS OF ENTERING INTO THE AGREEMENT AND ACKNOWLEDGES THAT IT IS NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS EXPRESSLY SET FORTH IN THE AGREEMENT.
6. MISCELLANEOUS
A. Relationship of Parties. The relationship between the parties is that of independent contractors. Each party shall perform its services on its own account and not as an agent of the other party. The relationship between the parties shall not under any circumstance be deemed to be a relationship of confidence or trust or a fiduciary relationship. Company shall not owe any fiduciary duty to Publisher. Publisher acknowledges, authorizes, and agrees that amounts received as Advertising Revenue may be commingled by Company with its general funds and other funds received and maintained by Company. No trust is created.
B. Severability. In the event a provision contained herein is held to be unlawful or unenforceable, such provision shall be severable from the remaining provisions of the Agreement, which shall remain in full force and effect.
C. Successors and Assignees. The Agreement may be assigned by either party without the consent of the other party and shall be binding on each party’s respective successors and assigns.
D. Governing Law. The Agreement shall be governed by, and interpreted and enforced in accordance with, the laws of the State of Tennessee, without regard to conflicts of law principles that would require the application of any other law, and regardless of where the parties hereto may now or hereafter reside, be organized or do business.
E. Venue, Jurisdiction, and Forum. Each of the parties hereto hereby irrevocably consents and submits to the exclusive jurisdiction of the state and federal courts, as applicable, located within Davidson County, Tennessee, in connection with any proceeding arising out of or relating to the Agreement or the transactions contemplated hereby, and waives any objection to venue in such courts.
F. Force Majeure. Neither party shall be liable to the other for delays or failures in performance resulting from causes beyond the reasonable control of that party, including, but not limited to, acts of God, labor disputes or disturbances, material shortages or rationing, riots, acts of war, governmental regulations, communication or utility failures or casualties.
G. Entire Agreement. These Terms and Conditions along with the Content and Advertising Partnership Agreement (including the exhibits hereto) contain the terms of the entire agreement between the parties with respect to the subject matter hereof and supersedes any and all prior agreements, commitments, understandings, discussions, negotiations or arrangements of any nature relating thereto (including, but not limited to, any email communications between the parties).