This Agreement (the “Agreement”) is made by and between UrbanoTV, Inc. (d/b/a NGL Media) (“NGLM”) and you (the “Publisher”). NGLM and the Publisher may be referred to herein together as the “Parties,” and each may be referred to herein as a “Party.” For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, NGLM and the Publisher hereby agree as follows:
1. NGLM VIDEO CONTENT, TECHNOLOGIES & ADVERTISEMENTS
1.1. Site Approval. All Publisher Sites must be approved by NGLM prior to the placement by the Publisher of an NGLM Advertising Tag and/or NGLM Video Technology on such Publisher Sites. The Publisher shall notify NGLM of any major change in the content or design of the Publisher Sites. NGLM reserves the right in its sole discretion to withhold, deny or revoke, the approval of any Publisher Sites, regardless of whether such Publisher Sites or the Publisher was previously accepted.
1.2. Video Technology and Advertising Tags.
(a) License. Subject to the terms and conditions of this Agreement, NGLM hereby grants to the Publisher a non‑exclusive, non‑transferable, non‑sublicensable, royalty-free license to use its Video Technology and Advertising Tags on the Publisher Sites for the sole purpose of generating video views and advertising revenue. Title to Video Technology and/or Advertising Tag shall not pass to the Publisher under any circumstances.
(c) Advertising Tag Delivery and Implementation. NGLM will provide the Publisher one or more Advertising Tag(s) and instructions to implement such Advertising Tag(s) on the Publisher Sites. The Publisher shall implement the Advertising Tag(s) in accordance with such instructions on all the Publisher Sites approved by NGLM. The Publisher shall ensure that any NGLM Advertisement published by the Publisher or any links between the Publisher Sites and the NGLM Services properly utilize any special link formats or unique identification numbers provided by NGLM. The Publisher may earn revenues only with respect to activities occurring directly through properly coded NGLM Advertisements and/or hyperlinks; provided, however, that in no event shall NGLM be liable to the Publisher with respect to any failure by the Publisher to use the specially coded hyperlinks and/or NGLM Advertisements as delivered by NGLM to the Publisher.
1.3. The Publisher License. The Publisher hereby grants NGLM a worldwide, royalty-free license to (a) link to the Publisher Sites; (b) place an NGLM Pixel on the Publisher Sites; (c) anonymously track user activity through the Advertising Tags or an NGLM Pixel placed on the Publisher Sites; and (d) serve NGLM Advertisements into the Publisher Sites for permitted uses set forth herein.
Except as expressly set forth in this Agreement, neither Party grants the other Party any other licenses relating to its content, proprietary materials and intellectual property, including without limitation, all copyrights, trademarks, trade names, services marks, and patents, and all such rights are reserved.
1.5. Publisher Responsibilities. The Publisher shall be responsible for obtaining all equipment, web access and connections necessary for the Publisher to participate in the NGLM Services at the Publisher’s own expense. The Publisher agrees to take commercially reasonable measures to maintain the web server supporting the Publisher Sites in order to ensure that the Publisher Sites are available twenty-four (24) hours a day, every day of the year. The Publisher shall notify NGLM as soon as the Publisher becomes aware that its web server is not operating and as soon as it becomes available again. The Publisher shall not include in its Publisher Sites or its linkages any software, tools or text that could cause harm to or adversely affect system performance, system unavailability, data loss, or other damage on the websites, systems or networks of NGLM or its users.
1.6. Financial Terms.
(a) Publisher CPM. In the event NGLM is the selling party, NGLM shall pay the Publisher an eCPM (the “Publisher Revenue”) for any NGLM ad campaign that runs on the Publisher’s site(s), unless a pre-negotiated CPM is agreed to in writing by the Parties in advance of any campaign’s start date.
(b) NGLM CPM. In the event that the Publisher is the selling party, NGLM shall receive a pre-negotiated CPM for NGLM video content that runs on the Publisher’s site(s) during any NGLM ad campaign to be agreed to in writing by the Parties in advance of a campaign’s start date.
(c) Sales Rights. Both Parties have the right to sell against the ad inventory created by NGLM video content on the Publisher’s site(s) provided that the Parties agree to the terms in writing in advance of a campaign’s start date.
(d) Payment Terms. Publisher shall be paid within sixty (60) business days after collection by NGLM (ie. Net 90). Publisher acknowledges that all payments hereunder shall be based on the impression counts used by the applicable Advertisers to pay NGL Media, and that the Publisher Reports are adjusted to reflect such counts following the end of each month. For the avoidance of doubt, all payments hereunder are based on Advertisement requests from the Publisher Properties that are actually fulfilled with a NGL Media Advertisement. All amounts received from activities NGL Media deems to be fraudulent may be refunded to Advertisers in NGL Media’s sole discretion. The Publisher must first reach $100 (USD) in revenue earned prior to NGLM remitting payment during any given pay period.
During the Term, as the information is reasonably available, NGLM will send upon request, reports of all traffic resulting from the Publisher’s Advertising Tags and Third Party Video Technology. NGLM shall use commercially reasonable efforts to display the results. For the avoidance of doubt, all the Publisher Revenue payable to the Publisher hereunder shall be strictly based on NGLM’s calculation of the Publisher Revenue as at the end of each payment period.
3. COMPLIANCE WITH LAWS
The Publisher shall not, and shall not cause any third party to: (a) use the NGLM services to transmit or otherwise distribute any content that is unlawful, defamatory, libelous, harassing, abusive, fraudulent, obscene, lewd, pornographic, promote violence, hate, discrimination based on race, sex, religion, nationality, disability, sexual orientation or age, contain viruses, or is otherwise objectionable, as reasonably determined by NGLM; (b) transmit or otherwise distribute advertisements or content that infringe upon another party’s intellectual property rights or other proprietary, contractual, or fiduciary rights or obligations; (c) bypass robot exclusion headers (including using any device, software, or routine to accomplish that goal) of NGLM, or interfere or attempt to interfere with the proper working of the NGLM services or prevent others from using the NGLM Services; or (d) use the NGLM services for any fraudulent or unlawful purpose. The Publisher further shall not use any automated means, including agents, robots, scripts, or spiders, to access or manage the Publisher’s account or to monitor or copy the NGLM services or the content contained therein. A violation of any of the foregoing may subject the Publisher to state and federal penalties and other legal consequences. NGLM reserves the right, but shall have no obligation, to investigate the Publisher in order to determine whether a violation of this Agreement has occurred or to comply with any applicable law, regulation, legal process or governmental request.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS
4.2. Representation and Warranties of NGLM. NGLM hereby makes the following representations, warranties and covenants to the Publisher that: (a) it has the full right, power, and authority to enter into this Agreement and all other documents associated thereto; (b) the execution and performance by NGLM of this Agreement does not violate any other agreement to which it is a party; (c) this Agreement and all other documents associated thereto constitute a legal, valid and binding obligation of NGLM; and (d) it maintains adequate rights in and to the services NGLM provides and NGLM Advertisements to grant the rights granted herein.
5.1. Indemnification Obligations of NGLM. NGLM shall indemnify, defend and hold harmless the Publisher, its shareholders, officers, directors, employees, agents and affiliates from any claim, demand, loss, damage, liability, cost or expense (including attorneys’ fees) arising from or relating to a material breach by NGLM of any representation, warranty, covenant or obligation pursuant to this Agreement; provided that the Publisher shall promptly notify NGLM in writing of any such claim, promptly tender the control of the defense and settlement of any such claim to NGLM, and cooperate fully with NGLM (at the request and expense of NGLM) in defending or settling such claim, including but not limited to providing any information or materials necessary for NGLM to conduct the foregoing. NGLM will not enter into any settlement or compromise of any such claim, which settlement or compromise would result in any liability to the Publisher, without the Publisher’s prior consent, which shall not be unreasonably withheld. In no event shall NGLM have any obligations to the Publisher with respect to any claims that result from or arise out of the Publisher’s modification of the NGLM Advertisements, NGLM services or NGLM pixels in any way or unauthorized use or misuse of the NGLM services.
6. TERM AND TERMINATION
6.1. Term. This Agreement shall commence on the Effective Date and shall continue for the period of one (1) year (the “Term”). The Term shall be extended automatically for successive one-year terms and shall be included in the Term as defined, unless the Publisher notifies NGLM in writing of its intention not to renew this Agreement at least sixty (60) days prior to the end of the then current Term.
6.2. Termination. Notwithstanding any provision of this Agreement to the contrary, this Agreement may be terminated if any of the following events occurs:
(a) at any time by agreement of the Parties;
(b) upon a material breach of this Agreement by either Party, and such breach is not cured within thirty (30) days of the defaulting Party’s receipt of written notice thereof; without limiting the generality of the foregoing, in the event that the Publisher removes the Third Party Video Technology and/or Advertising Tag from the Publisher Sites or otherwise blocks the operation of NGLM, without giving NGLM appropriate notice of termination, such action shall be deemed a material breach of this Agreement and upon the occurrence of such event, in addition to all other remedies available to NGLM, NGLM may withhold any and all payments due to the Publisher under this Agreement for two (2) months prior to the occurrence of such event or require the Publisher to refund to NGLM any payments already paid to the Publisher by NGLM for such two (2) month period;
(c) by NGLM upon a breach of Section 6 hereof by the Publisher, and such breach is not cured within five (5) days of the Publisher’s receipt of notice thereof;
(d) by either Party immediately upon written notice to the other Party if the other Party becomes insolvent, makes a voluntary or involuntary general assignment of its assets for the benefit of creditors, if a petition in bankruptcy is filed by or against the other Party (and if involuntary is not discharged within 30 days), a receiver or trustee is appointed for all or any part of the other Party’s property, or the other Party discontinues its business; or
(e) by NGLM at any time for any reason, without liability and without prejudice to its existing rights, immediately upon written notice to the Publisher.
7. TRADEMARK USAGE.
7.1. License to the Publisher Trademarks. Subject to the terms and conditions of this Agreement, the Publisher grants to NGLM a limited, non‑exclusive, non‑transferable right (with no right to sublicense) to display the Publisher Marks, in the form provided by the Publisher, on NGLM’s business to business website, NGLMedia.com, and in promotional literature solely for the purpose of marketing and promoting NGLM’s relationship with the Publisher. As used herein, the “Publisher Marks” means any trademarks, service marks, trade names, brands, logos, or other distinctive branding features provided by the Publisher. The Publisher retains the right to modify or change its trademark guidelines at any time. The Publisher reserves all rights in and to the Publisher Marks and changes thereto. NGLM acknowledges that all goodwill generated through NGLM’s use of the Publisher Marks will inure to the benefit of the Publisher and hereby assigns and shall assign to the Publisher any and all goodwill generated through NGLM’s use of the Publisher Marks, without any payment or other consideration of any kind to NGLM, and NGLM further agrees to take all actions necessary to effect such assignment. NGLM shall not use the Publisher Marks other than as provided by the Publisher and shall not remove, obscure, modify, or alter any the Publisher Marks. Upon termination of this Agreement, NGLM shall immediately cease to use the Publisher Marks.
8. GENERAL PROVISIONS.
8.1. Assignment; Binding Agreement. Either Party may not assign, transfer, delegate, sublicense, subcontract or outsource this Agreement or any of its rights or obligations hereunder, without the prior written consent of Licensor in each instance, which consent shall not be unreasonably withheld; provided, however, that either Party may, without consent, assign this Agreement (a) to any of its affiliate; or (b) to any purchaser of all or substantially all of its assets or to any successor by way of merger, consolidation or similar transaction. Any assignment in violation of this Section shall be void. Subject to any provisions hereof to the contrary, this Agreement shall inure to the benefit of and be binding upon the Parties hereto and their respective successors and permitted assigns.
8.2. Independent Contractors. The relationship of the Parties under this Agreement is that of independent contractors. In performing the services hereunder, each Party shall act at all times and in every respect as an independent contractor of the other Party, and nothing herein shall be construed to create an employment or agency relationship between the Parties. Neither Party shall not hold itself out as an employee, officer, or other agent of the other Party, or as possessing any authority to negotiate or enter into any contract or agreement on behalf of the other Party.
8.3. Notices. Any notice or communication shall be in writing and effective and shall be deemed to have been received by the recipient either: (a) immediately upon delivery by hand; (b) [one (1)] days after posting if posted by overnight courier; (c) [three (3)] days after posting in the ordinary course of post; or (d) simultaneously with transmission if sent by facsimile or email with read receipt. Any such notice must be addressed to the recipient at the addresses set forth in the Service Order Agreement, or at such other address as it will have been designated by a Party by written notice to the other Party.
8.4. Force Majeure. Neither Party shall be liable to the other Party on account of any loss or damage resulting from any delay or failure to perform all or any part of this Agreement if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control and without negligence of the Parties. Such events, occurrences, or causes will include, but not limited to, acts of God, strikes, lockouts, riots, acts of war, earthquake, power failures, fire and explosions, but the inability to meet financial obligations is expressly excluded.
8.5. Waiver. No failure of a Party to exercise, and no delay by a Party in exercising, any right or remedy under this Agreement shall constitute a waiver of such right or remedy. No waiver by a Party of any such right or remedy under this Agreement shall be effective unless made in a writing duly executed by all Parties
8.6. Severability. Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms or provisions of this Agreement or affecting the validity or enforceability of any of the terms or provisions of this Agreement in any other jurisdiction.
8.7. Amendment. This Agreement may not be amended or modified except in a writing signed by all of the Parties hereto, and none of its terms may be waived except in a writing signed by the Party to be charged. Without limiting the generality of the foregoing, the failure of either Party to enforce, or the delay by either Party in enforcing, any of its rights shall not be deemed a modification or waiver under this Agreement.
8.8. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which shall constitute one and the same instrument.
8.9. Governing Law. This Agreement shall be governed by, both as to its interpretation and its enforcement, by the internal laws of the State of New York applicable to contracts made and to be performed in such State.