SERVICES AGREEMENT
1. Grant of License; Agreement to Provide Services
A. Subject to the terms and conditions herein, Godengo hereby grants Client a nonexclusive license to (i) access, execute and use the Godengo's advertising management system (the "Rivista Solution") on Godengo's application server over the Internet, (ii) transmit data related to Client's use of the Rivista Solution over the Internet
B. During the Term (and any Renewal Term) Godengo will provide Client with the services described in this Agreement.
2. Provision of Tags; Ad Delivery
A.
Provision of
Tags. Godengo will provide the Client, during the Term and only for use in the
performance of Advertising Services, (i) unique Tags for the Web sites in the
Online Presence as reasonably required to perform Advertising Services. Client
and Godengo shall cooperate in the accomplishment of any and all technical
arrangements that may be required to enable the delivery of Advertising in
connection with the provision of Advertising Services. Godengo will serve
Advertising only to the Website(s) in the Online Presence that contain Godengo
Ad Tags.
B. Ad Delivery. All Advertising sold by Godengo in connection with the provision of Advertising Services shall be served using the Ad Server Software, which will be the official counter of all Advertising Impressions and other metrics used for billing and payment purposes. Godengo will provide Client with access to detailed tracking reports of all account activity. Godengo will pay all expenses associated with the serving of Advertising including bandwidth, software maintenance and development, and hardware and other network infrastructure.
3. Term and Termination
A. Client may terminate this Agreement sixty (60) days following written notice (the "Advertising Services Termination Date") to Godengo, provided that Client shall continue to display advertising through campaign completion with respect to any and all campaigns sold on or prior to the Advertising Services Termination Date.
B. Either party may terminate this Agreement: (i) at any time, by mutual consent; (ii) upon the occurrence of a material breach of a provision of this Agreement by the other party if such breach is not cured within fifteen (15) days after written notice is received by the breaching party identifying the matter constituting the material breach; (iii) in the event of either party's suspension of business, insolvency, institution of bankruptcy, liquidation proceedings by or against either party and where such bankruptcy, liquidation or insolvency proceedings have not been dismissed within ninety (90) days; or (iv) appointment of a trustee or receiver for either party's property or business, or any assignment, reorganization or arrangement by either party for the benefit of its creditors.
4. Use and Access
A. Subject to the restrictions on use as set forth herein, Client will have access to the Rivista Solution and Godengo's application server for the purpose of using the software for its intended purpose and in accordance with the specifications set forth in any documentation relating to the Rivista Solution provided by Godengo. Such use and access will be continuous on a 24 hour a day, 7 days a week basis except for interruptions by reason of scheduled maintenance or downtime beyond Godengo's reasonable control.
B. Client will use the Rivista Solution only for its internal business operations and will not permit the Rivista Solution to be used by or for the benefit of anyone other than Client. Client will not have the right to re-license or sell rights to access and/or use the Licensed Rivista Solution or to transfer or assign rights to access or use the Rivista Solution, except as expressly provided herein. Client may not modify, translate, reverse engineer, decompile or create derivative works based upon the Rivista Solution. Client agrees to use the Rivista Solution in a manner that complies with all applicable laws including intellectual property and copyright laws. Godengo expressly reserves all rights not expressly granted to Client herein.
C. Client will not: (i) transmit or share identification or password codes to persons other than authorized users (ii) permit the identification or password codes to be cached in proxy servers and accessed by individuals who are not authorized users, or (iii) permit access to the software through a single identification or password code being made available to multiple users on a network. Godengo will use its best efforts to protect and maintain the security of all of Client's passwords.
5. Links / Promotions. With prior written approval, either party may describe its role in relation to the other party on its website and in other promotional materials, and include a link to the other party's website on its own website. In support of maximizing the exposure for the advertising network, participating publishers can place a link in the footer of their website indicating membership in the network with a link to a central location that will link to all Network member publications.
A. Client owns all right, title, and interest in, or has sufficient authority to use all of the Client Content in the manner contemplated in this Agreement.
B. To Client's knowledge, the Client Content does not infringe the Intellectual Property Rights of any party, and use of the Client Content in connection with the terms of this Agreement does not and will not violate the Intellectual Property Rights of any third parties.
7. Warranties and Representations by Godengo. Godengo represents, warrants and covenants to Client that:
A. The Rivista Solution and any Godengo Creative Content shall not: (i) infringe on the Intellectual Property Rights of any third party or any rights of publicity or privacy; (ii) violate any law, statute, ordinance or regulation (including without limitation the laws and regulations governing export control, unfair competition, antidiscrimination or false advertising); (iii) contain any viruses, trojan horses, trap doors, back doors, easter eggs, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information. For the purposes of this Agreement, "Intellectual Property Rights" means patent rights (including patent applications and disclosures), copyrights, trademarks, trade secrets, know-how and any other intellectual property rights recognized in any country or jurisdiction in the world.
8. Rates & Revenues
A.
Godengo
will negotiate advertising rates for Network advertising depending on the
circumstances affecting an order. All campaigns are presented to Client as an
opt-out revenue opportunity. Cost Per Thousand (CPM) rates are presented to
Client as net revenue after sales commissions and agency fees (the "Effective
CPM").
B. Sponsorship revenue opportunities are offered as a monthly flat rate.
C. The actual price to advertisers must remain confidential between the advertiser, Godengo and you. Rate information is proprietary and confidential information and it may not be shared with other advertisers or third parties
9. Billing & Payment
A. Godengo will handle all accounting arrangements for the Network and provide each Network Client an online summary of the activity.
B. Godengo will also be responsible for sending checks to you for the revenue you are due. Client earnings will equal the Effective CPM rate of each Network campaign that was placed on Client's Web Presence, plus any sponsorship revenue.
C. Godengo pays publishers on the 15th day of each month by check (drawn on a US bank account and payable in US dollars) for all revenue generated during the calendar month ending 45 days prior for online advertising sold through the Network and placed on the Client's websites.
10. Technical Support, Godengo will provide Client with online, email and phone support on a reasonable and necessary basis Monday through Friday between 6 AM and 6 PM PST. Godengo technical staff will be available via the online support ticket system for urgent issues or in cases of emergency outside of normal business hours 24 hrs a day, seven days a week. Godengo will provide Client's online advertising customers self-service online account management tools 24 hours a day 7 days a week.
11. Confidentiality
A. Client acknowledges that the Rivista Solution and other data on Godengo's application server embodies logic, design and coding methodology that constitute valuable confidential information that is proprietary to Godengo. Client will safeguard the right to access the Rivista Solution and other software installed on Godengo's application server using the same standard of care that Client uses for its own confidential materials.
B. All data pertaining to Client disclosed to Godengo in connection with the performance of this Agreement and residing on Godengo's application server ("Client Information") will be held as confidential by Godengo and will not, without the prior written consent of Client, be disclosed or be used for any purposes other than the performance of this Agreement. Godengo will safeguard the confidentiality of such data using the same standard of care that Godengo uses for its own confidential materials. This obligation does not apply to data that: (i) is or becomes, through no act or failure to act on the part of Godengo, generally known or available; (ii) is known by Godengo at the time of receiving such information as evidenced by its written records; (iii) is hereafter furnished to Godengo by a third party, as a matter of right and without restriction on disclosure; or (iv) is the subject of a written permission to disclose provided by Client. Notwithstanding the forgoing, disclosure of data will not be precluded if such disclosure: (i) is in response to a valid order of a court or other governmental body of the United States; (ii) is otherwise required by law; or (iii) is otherwise necessary to establish rights or enforce obligations under this Agreement, but only to the extent that any such disclosure is necessary. Godengo will use its best efforts to notify Client of any request to disclose such information and will cooperate with Client in its attempts to prevent the release of such information in accordance with the law.
C. In addition to the obligations in Section 10(B) above, Godengo and client each agree to retain in confidence the terms and conditions of this Agreement and all non-public information and know-how disclosed to the other party pursuant to this Agreement which is either designated as proprietary and/or confidential, or by the nature of the circumstances surrounding disclosure, should reasonably be understood to be confidential (the "Confidential Information"). Each party agrees to not use the other party's Confidential Information except as contemplated herein and shall not disclose such Confidential Information to any third party except to employees as is reasonably required in connection with the exercise of its rights and obligations under this Agreement. Notwithstanding the foregoing, either party may disclose Confidential Information of the other party if required by law or court order. Moreover, either party hereto may disclose any Confidential Information hereunder to such party's agents, attorneys and other representatives or any court of competent jurisdiction or any other party empowered hereunder as reasonably required to resolve any dispute between the parties hereto. The term "Confidential Information" does not include information that: (i) is or becomes generally known to the public through no fault of the receiving party; (ii) is rightfully known by the receiving party at the time of disclosure without an obligation of confidentiality; (iii) is independently developed by the receiving party without use of the disclosing party's Confidential Information; (iv) the receiving party rightfully obtains from a third party without restriction on use or disclosure; or (v) is disclosed with the prior written approval of the disclosing party. Notwithstanding the mandatory arbitration provisions set forth below, either party may petition any court of competent jurisdiction for an injunction or other equitable relief to prevent the disclosure of Confidential Information and Client may seek such relief to prevent any disclosure of Client Information.
D. The confidentiality obligations set forth herein shall survive the termination of this Agreement.
12. No Warranty. GODENGO MAKES NO WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WITH RESPECT TO ADVERTISING, SPONSORSHIPS AND OTHER SERVICES, AND EXPRESSLY DISCLAIMS THE WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR ANY PARTICULAR PURPOSE. TO THE EXTENT ADS AND SPONSORSHIPS ARE BASED ON NON-GODENGO CONTENT, GODENGO SHALL NOT HAVE ANY LIABILITY IN CONNECTION WITH THE DISPLAY OF SUCH ADS AND SPONSORSHIPS.
13. Limitation of Liability, Indemnification. Neither party will be liable to the other for special, indirect or consequential damages incurred or suffered by the other arising as a result of or related to the use of the Rivista Solution, whether in contract, tort or otherwise, even if the other has been advised of the possibility of such loss or damages. Each party will indemnify and hold the other party harmless against any claims incurred by the other arising out of or in conjunction with the breach of any of their warranties or representations under this Agreement, as well as all reasonable costs, expenses and attorneys' fees incurred therein.
14. Relationship of the Parties. Nothing in this Agreement will create or imply an agency relationship between the parties, nor will this Agreement be deemed to constitute a joint venture or partnership between the parties.
15. Non-Assignment. Neither party will assign this Agreement, in whole or in part, without the prior written consent of the other party, and such consent will not be unreasonably withheld. An assignment shall include a "change of control" of a party. For the purposes of this Agreement, a "change of control" means (a) the acquisition of more than 50% of the then outstanding voting interests of a party by any unaffiliated third party; (b) any merger or consolidation of a party into another company or entity, such that the holders of the voting interests of any party immediately prior to such merger or consolidation hold (either directly or indirectly) less than 50% of the voting power of the securities of the surviving company; or (c) a complete liquidation of a party or the sale or disposition of all or substantially all of its assets. This Agreement will inure to the benefit of, and be binding upon the parties hereto, together with their respective legal representatives, successors, and assigns, as permitted herein
16. Arbitration. Any dispute arising under this Agreement will be subject to binding arbitration by a single Arbitrator in accordance with the relevant commercial dispute rules, if any, of Judicial Arbitration and Mediation Services ("JAMS"), except as modified herein. The arbitration will be held in California. Discovery shall be limited to: (a) three depositions for each of the claimant and respondent; and (b) two written discovery requests for each of claimant and respondent and such requests shall be limited to 25 interrogatories (including subparts as construed by the Federal Rules of Civil Procedure and the case law thereunder). The Arbitrator will have the authority to recommend injunctive relief and specific performance to enforce the terms of this Agreement. Judgment on any award rendered by the Arbitrator may be entered in any Court of competent jurisdiction. Nothing contained herein shall be construed to limit any party seeking equitable relief from a Court in order to protect the Confidential Information of such party.
17. Attorneys' Fees. If any litigation or arbitration is necessary to enforce the terms of this Agreement, the prevailing party will be entitled to reasonable attorneys' fees and costs.
18. Severability. If any term of this Agreement is found to be unenforceable or contrary to law, it will be modified to the least extent necessary to make it enforceable, and the remaining portions of this Agreement will remain in full force and effect.
19. Force Majeure. Neither party shall be responsible for failure or delay in its performance under this Agreement due to causes beyond its reasonable control, including but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, raw materials or supplies, war, riot, act of G-d, or governmental action, provided written notice of the occurrence of any such condition is delivered to the other party in a timely manner (each a "Force Majeure Event"). To the extent practicable, the party that has failed to perform shall resume performance within thirty (30) days following the termination of any such Force Majeure Event.
21. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to its subject matter, and supersedes all prior agreements, proposals, negotiations, representations or communications relating to the subject matter. The parties agree that this Agreement will be governed by and construed and interpreted in accordance with the laws of the State of California. Both parties acknowledge that they have not been induced to enter into this Agreement by any representations or promises not specifically stated herein.
22, Notice. Whenever under this Agreement one party is required or permitted to give notice to the other, such notice will be in writing and deemed given upon the earlier of delivery or five (5) calendar days after such notice is mailed by registered or certified United States mail, return receipt requested, postage prepaid, and addressed to the addressee at its address stated above, immediately upon personal delivery, or immediately upon electronic transmission provided that a copy thereof is contemporaneously mailed as provided herein.
23. No Guarantee. Godengo makes no guarantee regarding the level of impressions of advertisements or clicks on any advertisements or sponsorships, the timing of delivery of such impressions and/or clicks or the amount of any payment to be made to the Client under this Agreement.