This agreement (“Agreement”) is made by and between VidCrunch LLC ("Advertiser") and the publisher set forth in the Insertion Order (“Publisher”). This Agreement is incorporated into, and amends and supersedes, any agreement or Insertion Order between the parties. In the event of any conflict between the terms of this Agreement and the Insertion Order, the terms of this Agreement shall prevail.
All capitalized terms used herein shall have the meaning ascribed to them in section 13, in the body of the Terms and Conditions or in the Insertion Order.
Advertiser Network ("Network") enables Websites and/or Mobile Application owners to receive, transmit and promote the Advertising Product, and to receive Revenues based on the actual reporting system of the Advertiser in accordance with the Pricing Model set forth in the Insertion Order.
Advertiser reserves the right (but is not required or obligated) to withhold or refuse approval on any Website, Mobile Application, company or individual for any reason or for no reason at all.
Publisher shall not engage in any deceptive or fraudulent activity as determined by Advertiser in its sole discretion which may include, but not limited to, adding leads, clicks or impressions or inflate leads, clicks or impressions by fraudulent traffic generation such as bot/non-human traffic, stacked/hidden iframes, ad injection, impression laundering, clicks without referring URL'S, extraordinary high number of repeat clicks and other forms or mechanisms not approved by Advertiser. Should Publisher engage in any deceptive or fraudulent activity, Advertiser may immediately revoke any and all right Publisher may have under this Agreement including without limitation the right to receive any Revenues under this Agreement and Publisher's account will be terminated, in addition to any other remedies that may be available to Advertiser under any applicable law. Publisher acknowledges and confirms that the advertisers mediated by Advertiser are very unique and sensitive and thus failure by Publisher to comply with this section 2 may cause Advertiser irreparable damages. Publisher therefore acknowledges the importance of its undertakings under this section 2 and will fully comply with them.
Publisher will only use Advertiser's provided Advertising Product. Publisher will not create its own banners or advertising content in connection with any Advertising Product. Editing or modification of any Advertising Product or any part thereof is strictly prohibited.
Publisher will not spam or send unsolicited email mentioning or promoting the Advertiser Product.
This Agreement shall commence on the Start Date specified in Insertion Order and shall continue until the End Date specified in the Insertion Order.
Notwithstanding the above, each party may terminate this Agreement without cause and for any reason, by providing a 24 (twenty-four) hours prior notice to the other party.
Notwithstanding the above, without prejudice to any other rights or remedies which the parties may have whether under this Agreement or by any statute, regulation or by-law, either party may terminate this Agreement immediately without liability to the other party, by giving notice to the other party if: (i) the other party commits a material breach of this Agreement; (ii) the other party is deemed unable to pay its debts within the meaning of applicable laws; (iii) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party; (iv) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party; (v) a third party person becomes entitled to, or appoint a receiver over the assets of the other party; (vi) the other party is the subject of a bankruptcy petition or order; or (vii) the other party commences negotiations with creditors or makes a proposal for or enters into any compromise or arrangement with its creditors.
Publisher represents and warrants at all times throughout the Term that: (i) it has full authority to enter into this Agreement and to carry out and fully perform its obligations hereunder, and there is no restriction, limitation, or obligation, whether contractual, statutory or otherwise, which prevents it from maintaining its representations and fulfilling its obligations under this Agreement; (ii) it has obtained, maintains and is the holder of all licenses, permits, certificates, and authorizations required by any applicable law, regulation, statutory or governmental authority, for it to lawfully hold and operate its Websites, Mobile Application and/or services (collectively, "Publisher Services") and provide, offer, distribute, broadcast, and publicly perform the Publisher Services in accordance with this Agreement; (iii) it complies and shall continue to comply with all applicable laws, rules, and governmental (state, local, and community) and regulatory levies and requirements relating to it and to the Publisher Services including, without limitation and where applicable, laws, regulations and directives applicable to the processing of personal data and on the free movement of such data, and the protection of privacy; (iv) it is the sole owner of the Text and Images and/or holds all rights, licenses, consents, and permissions (including from all copyright holders) in the Text and Images, which are required to allow Advertiser to covert the Text and Images into video and/or provide the Advertising Product, and that it has waived and/or procured the right to waive all moral rights to the Text and Images. ; (v) it has the full right, authority, permissions, approvals and consents, including from End Users (if applicable), to access, store, collect, analyze, use and process, and allow Advertiser to do the same, personal or personally identifiable data (collectively, “Data”) in connection with the Publisher Services and the Campaign and in accordance with the terms of this Agreement; all Data has been and will be legally acquired; the Data, and its accessing, storage, collection, analysis, use and processing by Advertiser, does not and will not infringe any third party’s rights; (vi) Publisher Services (and any content therein, including without limitation, the Text and Images) do not and will not infringe any Intellectual Property Rights, rights of publicity, privacy or data protection rights of any third party and will not contain, promote, include or advertise any information or content (including without limitation any text, sound, data photo or image) and/or product which is and/or which contains the content restrictions set forth in Exhibit A ("Prohibited Content"); (vii) it may not authorize a third party to do the foregoing; (viii) it shall be solely responsible for the advertisement, marketing activities, distribution, and any content used by it for the purpose of providing Publisher's Services, and for any costs or expenses in relation to such marketing and promoting activities; (ix) it shall be solely responsible for creating backup copies of any data and information relating to its use of the services, at its sole expense.
Publisher undertakes to comply immediately with: (i) all reasonable instructions received from Advertiser in relation to Publisher's Services and in relation to the promotion, download and installation (if applicable) of the Advertiser's Product and any and all new guidelines issues by Advertiser.
Publisher acknowledges, warrants and agrees that its use of the Advertising Product is subject to Publisher's representation that Publisher is authorized and holds all consents and authorizations required to use the Advertising Product and act as Publisher of the Campaigns and that all data regarding end-users gained pursuant to the execution of this Agreement will be used for legal purposes in accordance with the Agreement and any applicable laws.
Publisher represents and warrants that it shall ensure at all times that Advertising Material and the Publisher Services are kept operational and functional.
Advertiser represents and warrants at all times throughout the Term: (i) it has the full authority to enter into this Agreement and to carry out and fully perform its obligations hereunder, and there is no restriction, limitation, or obligation, whether contractual, statutory or otherwise, which prevents it from maintaining its representations and fulfilling its obligations under this Agreement; (ii) it has obtained, maintains, and is the holder of all licenses, permits, certificates, and authorizations required by any applicable law, regulation, statutory or governmental authority, for it to lawfully operate its Services; (iii) it complies and shall continue to comply with all applicable laws, rules, and governmental (state, local, and community) and regulatory levies and requirements relating to it and the Services.
Advertiser DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE, THE INABILITY TO USE OR OPERATE, OR THE RESULTS OF THE USE OR OPERATION OF THE ADVERTISING PRODUCT, CONVERSION OF THE TEXT AND IMAGES OR SERVICES (OR ANY PART THEREOF). THE ADVERTISING PRODUCT, CONVERSION OF THE TEXT AND IMAGES AND SERVICES (AND ANY PART THEREOF), INCLUDING WITHOUT LIMITATION ANY CONTENT, DATA, PRODUCTS, MARKETING MATERIALS, REPORTS AND ANY INFORMATION RELATED THERETO, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF TITLE OR NON-INFRINGEMENT OR IMPLIED WARRANTIES OF USE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE. ADVERTISER is not responsible for the results of PUBLISHER'S USE OF THE ADVERTISING PRODUCT OR ITS PUBLICATIONS OF CAMPAIGNS including for any success or failure thereof.
ADVERTISER DOES NOT WARRANT OR REPRESENT THAT THE ADVERTISING PRODUCT AND SERVICES UNDER THIS AGREEMENT WILL BE PROVIDED WITHOUT INTERRUPTIONS OR SHALL BE ERROR FREE, NOR THAT THE ADVERTISING PRODUCTS OR THE SERVICES ARE OF SATISFACTORY QUALITY including without limitations in regards to MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE, NON-INFRINGEMENT, USABILITY, QUALITY, AVAILABILITY, SECURITY, ACCURACY, SUITABILITY, COMPLETENESS, TRUTHFULNESS, EFFECTIVENESS AND/OR RELIABILITY OF THE TECHNOLOGY AND/OR THE SERVICES, INCLUDING OF ANY CONTENT, DATA, RESULTS, OR THE INFORMATION OBTAINED OR GENERATED IN CONNECTION WITH PUBLISHER'S USE OF THE ADVERTISING PRODUCT AND THE SERVICES. ADVERTISER DOES NOT ENDORSE ANY ENTITY, PRODUCT, SERVICE OR ADVERTISING PRODUCT USED AND/OR TRANSMITTED IN CONNECTION WITH THE SERVICES, NOR ANY ADVERTISERS. THE USE OF THE ADVERTISING PRODUCT AND SERVICES ARE AT PUBLISHER’S OWN RISK.
ADVERTISER SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF OR DAMAGE TO DATA, LOSS OF ANTICIPATED REVENUES OR PROFITS, WORK STOPPAGE OR IMPAIRMENT OF OTHER ASSETS, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTIONS RESULTING FROM OR ARISING OUT OF THE ADVERTISING PRODUCT OR SERVICES (OR ANY PART THEREOF), USE OR INABILITY TO USE THE ADVERTISING PRODUCT OR SERVICES, FAILURE OF THE ADVERTISING PRODUCT OR SERVICES TO PERFORM AS REPRESENTED OR EXPECTED, LOSS OF GOODWILL OR PROFITS, THE PERFORMANCE OR FAILURE OF ADVERTISER TO PERFORM UNDER THE AGREEMENT, ANY OTHER ACT OR OMISSION OF ADVERTISER BY ANY OTHER CAUSE WHATSOEVER, INCLUDING DAMAGES ARISING FROM THE CONDUCT OF PUBLISHER, ANY ADVERTISER AND/OR ANY END-USERS, OR ANY ADVERTISING PRODUCT USED AND/OR MADE AVAILABLE THROUGH THE WEBSITE OR SERVICES; OR BASED UPON BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, REGARDLESS OF WHETHER OR NOT FORESEEABLE AND WHETHER OR NOT IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT DEROGATING FROM THE FOREGOING, THE AGGREGATE LIABILITY WHICH MAY BE IMPOSED UPON ADVERTISER UNDER, ARISING OUT OF OR RELATING TO THE AGREEMENT SHALL NOT EXCEED THE SUM OF FIVE HUNDRED (500) US DOLLARS.
PUBLISHER HEREBY ACKNOWLEDGES AND AGREES THAT THESE LIMITATIONS OF LIABILITY ARE AGREED ALLOCATIONS OF RISK CONSTITUTING IN PART THE CONSIDERATION FOR ADVERTISER SERVICES TO PUBLISHER, AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND EVEN IF ADVERTISER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITIES AND/OR DAMAGES.
Each party shall indemnify and hold harmless the other party, its assignees, agents, employees, officers, directors, shareholders, clients, acquirers and suppliers from and against any claims, actions, demands, losses or damages, including without limitation attorney's fees, costs related to in-house counsel time, court costs and related witness fees, relating or arising from a Party's violation of any term of this Agreement.
Without limiting the aforesaid indemnification provisions, Publisher hereby agrees to defend Advertiser against any claim, demand, suit or proceeding made or brought against Advertiser by a third-party alleging that any of the Text and Images and/or Advertiser’s use of Publisher’s Websites and/or Mobile Applications, are in violation of this Agreement, infringes or misappropriates the intellectual property rights of any third-party or violates applicable law.
The Advertising Product and any and all intellectual property rights pertaining thereto, including, but not limited to, inventions, patents and patent applications, users, leads, trademarks, trade names, logos, copyrightable materials, graphics, text, images, designs (including the “look and feel” of the Advertising Product), specifications, methods, procedures, information, know-how, algorithms, data, technical data, interactive features, source and object code, files, interface and trade secrets, whether or not registered or capable of being registered (collectively, “Intellectual Property”), are owned and/or licensed to Advertiser and are subject to copyright and other applicable intellectual property rights under domestic laws, foreign laws and international conventions. 9.2 Publisher hereby grants Advertiser a worldwide, non-exclusive, royalty-free, transferable license to use, reproduce, distribute, prepare derivative works of, display, make available to the public, the Text and Images in connection with the provision of the Advertiser Services, including without limitation, for converting the Text and Images into video,
Publisher may not copy, distribute, display, execute publicly, make available to the public, reduce to human readable form, decompile, disassemble, adapt, sublicense, make any commercial use, sell, rent, lend, process, compile, reverse engineer, combine with other software, translate, modify or create derivative works of any material that is subject to the Advertiser's proprietary rights, including the Advertiser's Intellectual Property, either by itself or by anyone on its behalf, in any way or by any means, unless expressly permitted under this Agreement. Further, Publisher may not (i) violate the legal rights of others and/or transmit or otherwise make available in connection with the Advertising Product any virus, worm, Trojan Horse, time bomb, web bug, spyware, or any other computer code, file, or program that may or is intended to damage or hijack the operation of any hardware, software, or telecommunications equipment, or any other actually or potentially harmful, disruptive, or invasive code or component including code to monitor users without their prior consent; (ii) interfere with or disrupt the operation of the Advertising Product; (iii) create a database by systematically downloading and storing all or any of the content from Advertiser's Product and/or forward any data generated from the Advertising Product without the prior written consent of Advertiser; (iv) impersonate any person or entity, including, but not limited to, any Advertiser agent or representative, falsely state or otherwise misrepresent Publisher affiliation with any person or entity, or express or imply that the Advertiser endorses Publisher; and/or (v) use the Advertising Product in any way or context, that harms the goodwill or reputation of Advertiser.
Advertiser has no obligation to provide support, maintenance, upgrades, modifications, or new releases to the Advertising product under these Terms.
Advertiser reserves the right to change any conditions of this Agreement at any time, subject to a prior 24 (twenty-four) hours' notice to Publisher. Change notices shall be sent to Publisher's contact by email, and Publisher shall be responsible for complying with any changes to the Agreement. Failure of the Publisher to terminate the Agreement within those 24 (twenty-four) hours will constitute acceptance of the changes to this Agreement.
The Advertising Products are provided on a non-exclusive basis, and Advertiser shall not be restricted from entering into any other agreements or conducting any business or discussions with any other parties at any time in its sole discretion. Publisher shall not make any public statement related to the Agreement without the Advertiser's consent.
Each party will treat as confidential all Confidential Information of the other party, will not use such Confidential Information except to exercise its rights and perform its obligations under this Agreement herein, and will not disclose such Confidential Information to any third party. Without limiting the foregoing, each of the parties will use at least the same degree of care it uses to prevent the disclosure of its own confidential information of like importance to prevent the disclosure of Confidential Information of the other party. Each party will promptly notify the other party of any actual or suspected misuse or unauthorized disclosure of the other party’s Confidential Information.
Confidential Information excludes information that: (i) was in the public domain at the time it was disclosed or has become in the public domain through no fault of the receiving party; (ii) was known to the receiving party, without restriction, at the time of disclosure, as demonstrated by evidence in existence at the time of disclosure; (iii) is disclosed with the prior written approval of the disclosing party; or (iv) to the extent such disclosure is required by order or requirement of a court or by applicable law, but only if the receiving party provides prompt notice thereof to the disclosing party to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure.
The receiving party shall not be prevented from disclosing any or all of the Confidential Information to such of its directors, officers, employees, advisors, agents and consultants (the “Representatives”) who are required to have knowledge thereof for the purposes of carrying out this Agreement, provided that each such Representative is bound by obligations of confidentiality to the receiving party no less restrictive than those contained herein and provided that the receiving party shall remain liable for any act or omission by its Representatives that, if done by the receiving party, would be a breach of the terms of this Agreement
This Agreement (including the Insertion Order and Schedule A) constitute the entire agreement and understanding of the parties as to the subject matter hereof and there are no provisions, terms, conditions or obligations, whether oral or written, express or implied, other than those contained or referred to herein.
No failure or delay by either party in exercising any right under this Agreement shall operate as a waiver of such right or extend to or affect any other or subsequent event or impair any rights or remedies in respect of it or in any way modify or diminish that party's rights under this Agreement. A purported waiver or release under this Agreement is not effective unless it is a specific authorized written waiver or release.
Nothing in this Agreement shall create or be deemed to create a partnership, an agency or a relationship of employer and employee between the parties.
This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument. Each party to this Agreement may enter into this Agreement by signing any such counterpart.
Each of the provisions contained in this Agreement shall be construed as independent of every other such provision, so that if any provision of this Agreement shall be determined by any court or competent authority to be illegal, invalid and/or unenforceable then such determination shall not affect any other provision of this Agreement, all of which other provisions shall remain in full force and effect.
The provisions of Publisher Fraud, Representations and Warranties, Disclaimers, Limitation of Liabilities, Indemnification, Intellectual Property and Maintenance, Term and Termination, Confidential Information, and the miscellaneous sections, will survive the termination or expiration of this Agreement.
This Agreement shall be governed by and construed in accordance with laws of the State of California, without giving effect to the rules with respect to conflict-of-law. Any dispute arising out of, or relating to this Agreement, its interpretation or performance hereunder shall be resolved exclusively by the competent court of San Francisco, California, and each of the parties hereby submits exclusively and irrevocably to the jurisdiction of such court
Advertiser may assign this Agreement without the prior consent of the Publisher. Publisher may not assign this Agreement without the prior written consent of Advertiser (such consent not to be unreasonably withheld or delayed).
"Advertising Material" – images, video, text, sound, graphics, or any other Advertiser content.
"Advertising Product" – either Advertising Code or Advertising Material, or both Advertising Code and Advertising Material, as set forth in the Insertion Order.
"Confidential Information" – all information, analyses, compilations, studies, documents, books, papers, drawings, ideas, concepts, systems, processes, procedures, methods, models, sketches and all embodiments of any of the foregoing (whether communicated orally, in written form or stored in any other media) disclosed by one party to the other party regarding the disclosing party, regardless of whether the information is specifically marked or designated as “confidential” or not including, without limitation, information concerning the disclosing party’s business activities and strategies, financial information, customer and supplier lists, intellectual property, technology, research, marketing information or plans and information regarding the disclosing party’s products and services.
"End User" – a person or entity who’s on device an Advertising Material is shown or an Installation of Advertising Code has occurred.
"Installation" – a complete and successful Installation of an Advertising Code.
"Mobile Applications" – mobile applications that may be mutually agreed between the parties by e-mail.
"Refund" chargeback or similar payment demanded from Advertiser by any third party, in connection with Advertiser's Services rendered under this Agreement, and as a result of such demand Advertiser shall be required to repay such third-party funds previously paid by it to Advertiser.
"Revenues" – the amounts earned and actually collected by Advertiser in any applicable month, less: (a) any additional fee(s) payable by Advertiser to any third party in connection with the Advertising Product made available to End Users or other third parties; (b) finance, VAT, excise or similar taxes legally collected. Publisher shall repay Advertiser immediately upon demand the full amount of a Refund.
"Text and Images" – the text and images displayed on Websites and/or Mobile Applications to be converted into video by the Advertiser
"Websites" – pages/websites that will be mutually agreed between the parties by e-mail.
VidCrunch reserves the right to change this Policy and/or these Terms from time to time. Please check this page frequently and particularly before you submit additional personal information using this platform. Continued use of the platform, following any such change, will indicate your acknowledgment of such change and agreement to be bound by the revised Terms and/or Policy. All such changes will apply to previously collected information. Therefore, please make sure you check the Terms and Policy regularly.