THIS ADVERTISER AGREEMENT ("Agreement") is between Rydium Canada Inc. ("Rydium"), with offices at 366 Adelaide St. W. Suite 600, Toronto, ON, M5V 1R9, Canada, and the individual or organization identified in the application form ("Advertiser"). Pursuant to this Agreement, Advertiser is contracting for:
The purchase of online advertising inventory ("Inventory") from website publishers ("Publishers") in Rydium's network of technology news and information website Publishers (the "Rydium Network");
The delivery and display of Advertiser's advertising materials and linked URLs ("Creative") on certain Inventory on websites in the Rydium Network; and
Or certain Rydium serving, tracking and reporting services with respect to advertising campaigns ("Campaigns") displaying the Creative on Publisher's Inventory.
Campaign details are as stated in the Campaign Insertion Order ("IO"). In the event of a difference between the terms of this Agreement and the IO, the IO shall take precedence. As the individual accepting and executing this Agreement, you hereby represent that you have all rights and authority to enter into this Agreement on behalf of the Advertiser.
BY CLICKING THE "I AGREE" BUTTON ADVERTISER AGREES TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND THIS AGREEMENT WILL FORM A BINDING CONTRACT BETWEEN ADVERTISER AND RYDIUM. IF ADVERTISER DOES NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, PLEASE CLICK "I DO NOT AGREE".
Advertiser Representations and Warranties:
Advertiser represents and warrants that:
It is the owner of all right, title and interest in, or is validly licensed to use, the entire contents and subject matter and Intellectual Property Rights (as defined below) contained in or displayed on the Creative;
The Creative is free of any "worm", "virus" or other destructive programming or device that could impair or injure any data, computer system, software, property, person or entity;
The Creative does not violate any applicable laws or regulations, including without limitation, false or deceptive or comparative advertising laws, gaming and gambling laws, competition laws, and criminal laws;
The Creative does not contain any misrepresentation, or content that is defamatory or violates any rights of privacy or publicity;
The Creative does not and will not infringe any Intellectual Property Rights or other proprietary rights;
The Advertiser and the Creative do not produce or provide any adult content, including without limitation, any content that is in violation of applicable obscenity and child pornography laws;
The Advertiser and the Creative do not engage in, promote or facilitate illegal or legally questionable activities such as pirating and hacking;
Advertiser shall not engage in any restricted activities described in this Agreement; and
Advertiser has the right to grant to Rydium and the Publishers, and does hereby grant, the right and license to transmit to, use, reproduce, display, distribute and track the Creative and Campaigns on the Rydium Network Websites.
For the purposes of this Agreement, "Intellectual Property Rights" means all world-wide intellectual and industrial property rights, whether existing now or in the future, including without limitation copyrights, trade-marks, patents, inventions, industrial designs, trade secrets and information of a confidential nature, and all registrations and applications therefor.
TRAFFICKING: Trafficking of Campaigns on the Rydium Network requires between 0-3 business days after Advertiser has purchased the Campaign via an IO and supplied the Creative. All Campaigns placed on the Rydium Network are subject to Rydium Network capacity limitations which include software, hardware, bandwidth, Inventory availability, payment terms, credit history, Creative performance, and market pricing limitations. If the IO indicates Automatic Campaign Extension, Advertiser hereby grants Rydium the right to extend the end date of the Campaign, in Rydium's discretion, to complete delivery of the contracted Campaign budget.
PUBLIC RELEASE: Neither Advertiser nor Rydium shall release any information regarding Advertiser's relationship with Rydium, including, without limitation, in press releases or promotional or merchandising materials, without the prior written consent of both Advertiser and Rydium.
QUALITY CONTROL: Rydium reserves the right to refuse service to any new or existing Advertiser, in its sole discretion, with or without cause. Rydium reserves the right, in its sole discretion and without liability, to reject, omit or exclude any Creative for any reason at any time, with or without notice to the Advertiser and regardless of whether such Creative was previously accepted or published. Rydium does not accept Creative from Advertisers that produce or provide adult content. Creative (advertising content and linked URLs) shall not include nudity, partial nudity or adult language. Advertisers shall not engage in, promote or facilitate illegal activities. Rydium may in its sole discretion refuse or restrict use of any Creative that it deems appropriate or requires special handling.
EXCLUSIVE REPRESENTATION: Advertiser grants Rydium the exclusive right to provide sales representation on Advertiser's behalf in order to solicit, market and sell Content and Campaigns to Publishers and Websites that are members of the Rydium Network. Advertiser shall not, directly or indirectly, approach or otherwise solicit sales of Advertiser's Content to Publishers and Websites that are members of the Rydium Network.
CAMPAIGN ACCOUNTING: Campaigns purchased by Advertiser in the Rydium Network are served, tracked and reported by Rydium. Unless otherwise stated in the IO, Rydium shall be the governing counting authority, and all prepaid and billed amounts due shall be based on the numbers tracked by Rydium.
INDEMNITIES, LIMITATIONS OF LIABILITY, WARRANTY DISCLAIMERS
Indemnification:
Advertiser is solely responsible for any legal liability arising out of or relating to:
The Creative and/or
Any content or material to which users can link through the Creative.
Advertiser hereby agrees to indemnify, defend and hold harmless Rydium and its affiliates and Publishers, and their respective officers, directors, agents and employees from and against all claims, actions, liabilities, losses, expenses, damages, and costs (including, without limitation, reasonable legal fees) that may at any time be incurred by any of them by reason of any claims, suits or proceedings
For libel, defamation, violation of right of privacy or publicity, Intellectual Property Right infringement or other infringement of any third party right, fraud, false advertising, misrepresentation, product liability or violation of any law, statute, ordinance, rule or regulation throughout the world in connection with the Advertiser or the Creative;
Arising out of any material breach by Advertiser of any duty, representation or warranty under any agreement with Rydium; or
Relating to a contaminated file, virus, worm, Trojan horse or other destructive programming or device originating from the Creative.
Limitations of Liability:
IN NO EVENT SHALL RYDIUM BE LIABLE FOR LOST PROFITS, FAILURE TO REALIZE EXPECTED SAVINGS, INABILITY TO USE ANY WEBSITE OR OTHER COMPUTER PROGRAM, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OR ECONOMIC LOSS OF ANY KIND, EVEN IF RYDIUM HAS BEEN ADVISED OF OR COULD HAVE REASONABLY FORESEEN SUCH LOSS OR DAMAGE OCCURRING. NEITHER RYDIUM NOR ITS PUBLISHERS WILL BE SUBJECT TO ANY LIABILITY WHATSOEVER FOR
ANY FAILURE TO PROVIDE REFERENCE OR ACCESS TO ALL OR ANY PART OF THE CREATIVE DUE TO SYSTEMS FAILURES OR OTHER TECHNOLOGICAL FAILURES OF RYDIUM OR OF THE INTERNET;
DELAYS IN DELIVERY AND/OR NON-DELIVERY OF CREATIVE, INCLUDING, WITHOUT LIMITATION, DIFFICULTIES WITH A PUBLISHER OR WEBSITE, DIFFICULTIES WITH A THIRD-PARTY SERVER, OR ELECTRONIC MALFUNCTION; AND
ERRORS IN CONTENT OR OMISSIONS IN ANY CREATIVE.
RYDIUM'S MAXIMUM LIABILITY UNDER OR RELATED TO THIS AGREEMENT SHALL IN NO EVENT EXCEED: (A) FOR ANY ONE CLAIM, AN AMOUNT NO GREATER THAN THE AMOUNTS PAID BY ADVERTISER TO RYDIUM IN THE THREE CALENDAR MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE CLAIM; AND (B) IN THE AGGREGATE WITH RESPECT TO ALL CLAIMS UNDER OR RELATED TO THIS AGREEMENT, THE AGGREGATE OF ALL PAYMENTS MADE TO RYDIUM BY ADVERTISER UNDER THIS AGREEMENT.
Warranty Disclaimer: EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, RYDIUM AND ITS PUBLISHERS DO NOT MAKE AND HEREBY EXPRESSLY DISCLAIM ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, WITH RESPECT TO ANY MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, THE PERFORMANCE OF ANY SOFTWARE PROGRAMS INCIDENTAL TO SERVICES RENDERED BY RYDIUM, SERVICES PROVIDED BY RYDIUM OR ANY OUTPUT OR RESULTS THEREOF, AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW FROM A COURSE OF DEALING OR USAGE OF TRADE. RYDIUM AND ITS PUBLISHERS SPECIFICALLY DISCLAIM ANY REPRESENTATIONS, WARRANTIES AND CONDITIONS REGARDING THE PAYMENTS OR REVENUES THAT MAY BE GENERATED AND ANY ECONOMIC OR OTHER BENEFIT THAT ADVERTISER MAY OBTAIN BY PARTICIPATION IN THIS AGREEMENT.
Application: The limitations, exclusions and disclaimers in this Agreement shall apply irrespective of the cause of action, demand or claim, including without limitation, breach of contract, tort (including negligence), fundamental breach or breaches, failure of essential purpose, or any other legal or equitable theory.
TERMINATION: This Agreement may be terminated by Rydium immediately if Advertiser is in breach of this Agreement or fails to disclose, conceals or misrepresents itself in any way. Either party may terminate this Agreement for convenience upon 72hours written notice. Termination notice may be provided by Rydium via email, facsimile or upon personal delivery to the contact information provided by Advertiser and will be effective immediately. Termination notice may be provided by Advertiser to Rydium upon personal delivery to the following address:
366 Adelaide St W.
Suite 600,
Toronto, ON,
M5V 1R9,
Canada
To the attention of Traffic.
GENERAL
Entire Agreement and Interpretation: This Agreement, including all attachments which are incorporated herein by reference, constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes and replaces all prior and contemporaneous understandings or agreements, written or oral, regarding such subject matter. Sections 3, 7, 8, 9 and 10 shall survive expiration or early termination of this Agreement and remain in full force and effect. Failure by either party to enforce any provision of this Agreement shall not be deemed a waiver of future enforcement of that or any other provision. Any waiver of any provision of this Agreement shall be effective only if in writing and signed by the parties. If for any reason a court of competent jurisdiction finds any provision of this Agreement to be unenforceable, that provision of the Agreement shall be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect. Headings used in this Agreement are for ease of reference only and shall not be used to interpret any aspect of this Agreement. In addition to terms that are negotiated and documented separately from this Agreement. This Agreement may be executed in any number of counterparts and in electronic form, each of which shall be deemed to be an original and all of which taken together shall be deemed to constitute one and the same instrument.
Relationship: The parties are independent contractors and nothing in this Agreement shall be deemed to create any agencie, employment, partnership, joint venture or other relationship between the parties and neither Rydium nor Advertiser shall hold itself out as the agent of the other, except as otherwise specified in this Agreement.
Excusable Delays: 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 and natural disasters, labour disputes or disturbances, material shortages or rationing, riots, acts of war, governmental regulations, communication or utility failures, or casualties.
Modifications: Rydium reserves the right to change any conditions of this contract at any time. Advertiser is responsible for complying with any changes to the Rydium Advertiser Agreement within 10 business days from the date of change. Any modification of any provision of this Agreement shall be effective only if in writing and acknowledged by the parties, including without limitation, by means of electronic agreement.
Assignment: Advertiser may not assign this Agreement, in whole or in part, without written consent from Rydium. Any attempt to assign this Agreement without such consent will be null and void.
Governing Law: This Agreement will be governed by and construed in accordance with the laws in force in the Province of Ontario, Canada.
Ability to Enter into Agreement: By executing this Agreement, Advertiser warrants that Advertiser (or an authorized representative of Advertiser) is at least 18 years of age and has all legal capacity and authority to enter into this binding Agreement on behalf of Advertiser.
ACCEPTANCE
ADVERTISER HEREBY AFFIRMS THAT ADVERTISER HAS READ THIS AGREEMENT AND AGREES TO ALL OF THE TERMS AND CONDITIONS BY SELECTING "I AGREE" WHEN SUBMITTING THE APPLICATION FORM, AND THIS AGREEMENT WILL FORM A BINDING CONTRACT BETWEEN ADVERTISER AND RYDIUM. IF ADVERTISER DOES NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, SELECT "I DO NOT AGREE".
