RYDIUM - Online Media Experts

THIS ADVERTISER AGREEMENT ("Agreement") is between Rydium Canada Inc., with offices at 366 Adelaide St. W., Toronto, ON, M5V 1R9, Canada ("Rydium"), and the person or entity identified in the application form ("Advertiser", collectively with Rydium, the "Parties").

NOTIFICATION: PERMISSION TO USE THE RYDIUM NETWORK (DEFINED BELOW) IN THE MANNER PROVIDED IN THIS AGREEMENT IS CONDITIONAL UPON THE ADVERTISER AGREEING TO THE TERMS SET OUT BELOW.

THE ADVERTISER WILL NOT BE ABLE TO USE THE RYDIUM NETWORK UNTIL IT HAS READ AND ACCEPTED ALL THE TERMS OF THIS AGREEMENT. CAREFULLY READ THE AGREEMENT. ACCEPTANCE SHALL BIND THE ADVERTISER AND ALL OF ITS EMPLOYEES, CONTRACTORS, AGENTS AND OTHER REPRESENTATIVES TO THE TERMS OF THIS AGREEMENT. THE INDIVIDUAL ACCEPTING THIS AGREEMENT HEREBY REPRESENTS AND WARRANTS THAT S/HE HAS THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF AND BIND THE ADVERTISER.

BY SELECTING THE "I AGREE" BUTTON AT THE BOTTOM OF THIS SCREEN, THE ADVERTISER CONSENTS TO BE BOUND BY AND BECOME A PARTY TO THIS AGREEMENT. PLEASE PRINT A COPY OF THIS AGREEMENT FOR YOUR RECORDS.

IF THE ADVERTISER DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK ON THE "I DO NOT AGREE" BUTTON.

WHEREAS:

Rydium operates an online marketplace (the "Rydium Network"). The Rydium Network includes member website publishers ("Publishers") and member advertisers ("Advertisers"). Publishers participate in advertising campaigns (each a "Campaign") using the Rydium Network. Publishers and Rydium designate certain Publisher websites as "Network Websites". Advertisers may purchase the right to display advertising materials and linked URLs (collectively, "Content") on Network Websites as part of Campaigns;
Rydium owns or otherwise has the right to grant licenses to use proprietary technology which enables such advertisers to publish such Content within the Rydium Network and enables Publishers to display such Content on Network Websites as part of Campaigns;
Rydium provides tracking and reporting services (the "Services") as described herein with respect to Campaigns; and
Advertiser desires to become a member advertiser in the Rydium Network and is willing to supply Content for display on Network Websites as part of Campaigns;

NOW THEREFORE in consideration of the mutual covenants and agreements set out herein the Parties agree as follows:

Membership and License Grant
Effective upon the acceptance of all terms of this Agreement by Advertiser, Advertiser hereby is designated a member advertiser in the Rydium Network. Rydium hereby grants to Advertiser, and Advertiser hereby accepts, a non-exclusive, non-transferable license for the term of the Agreement (the "License") to use the Program and related documentation (collectively, the "Licensed Materials") for purposes of Advertiser's participation in the Rydium Network and in Campaigns, upon the terms and conditions set forth in this Agreement, and for no other purpose. Advertiser shall acquire no right whatsoever to all or any part of the Licensed Materials except the rights expressly granted herein.
Advertiser hereby acknowledges that the Licensed Materials constitute the valuable property and trade secrets of Rydium embodying substantial creative efforts and confidential information. Advertiser therefore agrees: to maintain the Licensed Materials in confidence; not to disclose or otherwise make available any of the Licensed Materials to any person except employees of Advertiser with a need to know; to issue written instructions to Advertiser's employees prior to the disclosure to such employees of the Licensed Materials requiring them not to disclose, use or copy the Licensed Materials except as is reasonably required for them to perform their employment obligations for Advertiser solely for the purposes permitted herein; except as otherwise permitted under this Agreement, not to copy any of the Licensed Materials; not to reverse engineer, reverse assemble or reverse compile the Program, and not to alter or remove any proprietary rights or copyright notice or identification which indicates Rydium's ownership of the Licensed Materials.
Content
Advertiser hereby agrees to supply Content (defined below) for display on Network Websites as part of Campaigns. Advertiser hereby grants to Rydium and the Publishers the right and license to transmit, use, reproduce, display, distribute and track the Content and Campaigns on the Network Websites.
Advertiser acknowledges, covenants and agrees that
1. Content may be displayed on any Network Website in the Rydium Network;
2. Rydium does not accept Content from Advertisers that produce or provide adult content;
3. Content shall not include nudity, partial nudity or adult language;
4. Rydium may in its sole discretion refuse or restrict use of any Content that it deems inappropriate or requires special handling; and
5. Rydium and Publishers reserve the right, in their sole discretion and without liability, to reject or remove any Content from any and all Network Websites for any or no reason, with or without notice to Advertiser and regardless of whether such Content or Context Trigger was previously accepted or published.
Advertiser represents and warrants to, and covenants with, Rydium that:
1. all its information set out in the application form is correct and current;
2. it is the owner of all right, title and interest in, or has all necessary rights to grant to Rydium and Publishers the rights granted herein to use, reproduce, transmit, distribute, display and track (collectively, "Use"), the Content and all Intellectual Property Rights (as defined below) therein or related thereto;
3. all Content supplied by it hereunder are and will be free of any worm, virus or other destructive programming or device that could cause damage to any data, computer system, software, property, person or entity;
4. the Content do not and will 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;
5. the Content do not and will not contain any misrepresentation, or content that is defamatory or violates any applicable law, and the Advertiser does not and will not produce or provide, and the Content do not and will not contain, any adult content including without limitation any content that is in violation of applicable obscenity and child pornography laws;
6. the Content and the Use thereof and the websites linked from Content (including any and all services or products described or referred to therein) do not and will not infringe any Intellectual Property Rights or other proprietary rights, and the Use of same, and the websites linked from Content, will not violate or encourage violation of any applicable laws; and
7. the Advertiser does not and will not engage in or promote, and the Advertiser and the Content do not and will not facilitate illegal or legally questionable activities such as pirating and hacking.
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.
Campaigns
Subject to the terms and conditions of this Agreement, Advertiser hereby purchases the right to display Content on Network Websites as part of Campaigns.
Advertiser acknowledges and agrees that all Campaigns placed on the Rydium Network are subject to Rydium Network capacity limitations which include software, hardware, bandwidth, Network Websites availability, payment terms, credit history, Content performance, and market pricing limitations.
Advertiser is solely responsible for all:
1. Content targeting options (collectively "Content ") and all Content, whether generated by or for Advertiser;
2. web sites reachable from Content URLs; and
3. Advertiser's services and products, whether or not the subject matter of any Content or Campaign.
Campaign Accounting
In consideration for the fees payable hereunder Rydium agrees to track and report on Campaigns purchased by Advertiser. Rydium's tracking and reports shall be final and binding upon Advertiser, and all prepaid and billed amounts due shall be based on the numbers including numbers of clicks tracked by Rydium. Advertiser shall protect its passwords and take full responsibility for its own, and any third party, use of its accounts.
Payment
Advertiser agrees to pay the charges determined upon the execution of a Campaign using the Rydium software, based on the actual numbers tracked by Rydium. Advertiser shall pay all charges in the lawful currency of the United States of America. In Rydium's sole discretion, all charges payable hereunder shall be either (i) prepaid in cash or by Rydium applying a charge to Advertiser's credit card number set out in the application form, (ii) subject to Rydium's prior credit approval which may be withheld by Rydium in its sole discretion for any reason or no reason, invoiced monthly and paid by Advertiser to Rydium within 15 days of the date of such invoice (the "Due Date"), provided that Advertiser agrees that Rydium is hereby authorized to charge to Advertiser's credit card number set out in the application form in the event any invoiced amount not paid by Advertiser on or by Due Date therefor.
Charges are exclusive of taxes. Advertiser is responsible for paying
1. all taxes and government charges, and
2. any reasonable expenses and attorney fees Rydium incurs collecting late amounts.
Advertiser waives all claims relating to charges unless claimed within 60 days after the charge. Refunds (if any) shall be solely of amounts billed in error and claimed within such 60 day period, and shall be provided solely in the form of advertising credit for use in connection with future Campaigns. Advertiser agrees that there will be no refunds of any prepaid charges.
Non-Solicitation
Advertiser shall not, directly or indirectly, approach or otherwise solicit sales of Advertiser's Content to Publishers and Network Websites that are members of the Rydium Network.
Quality Control and Prohibited Uses
Rydium reserves the right to refuse service to Advertiser, in its sole discretion, with or without cause.
Advertisers shall not engage in, promote or facilitate illegal activities. Advertiser shall not engage in any restricted activities described in this Agreement. Without limiting the foregoing, Advertiser shall not, and shall not authorize any party to generate automated or fraudulent clicks, or advertise any product or service where such advertising is prohibited by law or other engage in any unlawful or fraudulent business practice in any jurisdiction where Content is displayed. Violation of any prohibition set out in this Agreement may result in immediate termination of this Agreement or Advertiser's account without notice and may subject Advertiser to legal penalties and consequences.
Advertiser shall not 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 Rydium.
Announcements
Advertiser shall not 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 Rydium.
Indemnities, Limitations of Liability, Warranty Disclaimers
1. Indemnification:
  Advertiser is solely responsible for any legal liability arising out of or relating to
  1. the Content and/or
  2. any content or material to which users can link through the Content. Advertiser hereby agrees to indemnify, defend and hold harmless Rydium and Publishers, and their respective officers, directors, affiliates, 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
    1. for libel, defamation, breach of privacy obligation, 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 Content;
    2. arising out of any material breach by Advertiser of any duty, representation or warranty under any agreement with Rydium; or
    3. relating to a contaminated file, virus, worm, Trojan horse or other destructive programming or device originating from any Content, Context Trigger or website linked from Content.
2. Limitations of Liability:
  1. IN NO EVENT SHALL RYDIUM BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OR ECONOMIC LOSS OF ANY KIND INCLUDING WITHOUT LIMITATION LOST PROFITS, FAILURE TO REALIZE EXPECTED SAVINGS, OR INABILITY TO USE ANY WEBSITE OR OTHER COMPUTER PROGRAM, EVEN IF RYDIUM HAS BEEN ADVISED OF OR COULD HAVE REASONABLY FORESEEN SUCH LOSS OR DAMAGE OCCURRING AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. NEITHER RYDIUM NOR ITS PUBLISHERS WILL BE SUBJECT TO ANY LIABILITY WHATSOEVER FOR
    1. ANY FAILURE TO PROVIDE REFERENCE OR ACCESS TO ALL OR ANY PART OF THE CONTENT DUE TO SYSTEMS FAILURES OR OTHER TECHNOLOGICAL FAILURES OF RYDIUM OR OF THE INTERNET;
    2. DELAYS IN DELIVERY AND/OR NON-DELIVERY OF CONTENT, INCLUDING, WITHOUT LIMITATION, DIFFICULTIES WITH A PUBLISHER OR WEBSITE, DIFFICULTIES WITH A THIRD-PARTY SERVER, OR ELECTRONIC MALFUNCTION; AND
    3. ERRORS IN CONTENT OR OMISSIONS IN ANY CONTENT.
  2. RYDIUM'S MAXIMUM LIABILITY UNDER OR RELATED TO THIS AGREEMENT SHALL IN NO EVENT EXCEED:
    1. FOR ANY CLAIM OR CLAIMS RELATING TO ANY ONE CAMPAIGN, THE LESSER OF
      1. AN AMOUNT NO GREATER THAN THE AGGREGATE AMOUNTS PAID BY ADVERTISER TO RYDIUM IN RESPECT OF SUCH CAMPAIGN IN THE THREE CALENDAR MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE FIRST CLAIM IN RESPECT OF SUCH CAMPAIGN, AND
      2. TWENTY THOUSAND UNITED STATES DOLLARS (US $20,000.00); AND
    2. IN THE AGGREGATE WITH RESPECT TO ALL CLAIMS ARISING FROM OR OTHERWISE RELATED TO THIS AGREEMENT, THE LESSER OF
      1. THE AGGREGATE OF ALL CAMPAIGN PAYMENTS MADE TO RYDIUM BY ADVERTISER UNDER THIS AGREEMENT, AND
      2. TWENTY THOUSAND UNITED STATES DOLLARS (US $20,000.00). EACH PARTY ACKNOWLEDGES THAT THE OTHER PARTY HAS ENTERED INTO THIS AGREEMENT RELYING ON THE LIMITATIONS OF LIABILITY STATED HEREIN AND THAT THOSE LIMITATIONS ARE AN INTEGRAL PART OF THE BARGAIN BETWEEN THE PARTIES.
3. 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, non-infringement, 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.
4. 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
In the event that Advertiser breaches any provision of this Agreement, Rydium may immediately terminate any or all Campaigns, this Agreement and the Advertiser's account without notice to Advertiser.
Rydium may cancel immediately any or all Campaigns or this Agreement for its convenience, at any time with or without notice.
The Advertiser has the right to cancel any Campaign at any time (such cancellation shall generally be effective within 72 hours).
General
1. 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 5, 8, 9, 10, 11, 12 and 13 of this Agreement; the second sentence of Section 4 of this Agreement; and the last sentence of Section 7 of this Agreement, shall in each case 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 party against whom enforcement is sought. 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. 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.
2. Relationship: The parties are independent contractors and nothing in this Agreement shall be deemed to create any agency, 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.
3. 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, epidemics or casualties, provided that Advertiser's payment obligations hereunder shall continue hereunder during, and Advertiser shall not be excused therefrom as a result of, any such delay. Financial inability of either Party shall not constitute an excusable delay.
4. Modifications: Rydium reserves the right to change any conditions of this contract at any time. Rydium will post any changes to this Agreement in Advertiser's account and Advertiser will be required to agree with any changes before Advertiser is allowed to continue using its account. In the event that Advertiser does not agree with all such changes, this Agreement shall immediately terminate. Advertiser is responsible for complying with any such changes, effective as of the date Rydium posts such change to Advertiser's account.
5. Assignment: Advertiser may not assign this Agreement, in whole or in part, without the prior written consent of Rydium. Any attempt to assign this Agreement without such consent will be null and void. Rydium may assign this Agreement, in whole or in part, without the consent of or notice to Advertiser.
6. Governing Law: This Agreement will be governed by and construed in accordance with the laws in force in the Province of Ontario, Canada.
7. 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.
8. Ownership:
  1. Program: Advertiser acknowledges that Rydium owns all right, title and interest, including without limitation all Intellectual Property Rights, in and to the Rydium software ("Program") (including Rydium's ad serving technology and excluding items licensed by Rydium from third parties), and that Advertiser will not acquire any right, title, or interest in or to the Program except as expressly set forth in this Agreement. Advertiser will not modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from any Rydium's services, software including the Program, or documentation. Advertiser acknowledges that certain Rydium services available as part of the Program are or may from time to time be unsupported under then current Rydium technical documentation. Such features are provided "as is" and Advertiser's use of them shall be undertaken solely at Advertiser's own risk.
  2. Data: Rydium is the sole owner of all Network Website, Campaign and aggregate web user data collected by Rydium. Advertiser shall only have access to and the right to use for its own internal purposes the Campaign data that is collected through the use of Advertiser's Content
Consent
By selecting the "I agree" button, Advertiser agrees that the statements provided in the attached application form are true and complete. Advertiser agrees to promptly notify Rydium in writing of any change to the information set out in its attached application.
Advertiser hereby consents and authorises Rydium and its agents, contractors and representatives to collect, verify, copy, use, communicate with and disclose to third parties, at any time, any credit, financial or other personal information requested on the attached application form or otherwise, including information related to credit rating, financial capacity and payment history, with respect to Advertiser ("Information") which, in the sole and reasonable opinion of Rydium, is required for any of the following purposes: (a) to investigate and/or verify all Information; (b) to process all current or future Advertiser requests for credit approval; (c) to complete or perform the transactions contemplated in this Agreement and any further transactions resulting from future approved Advertiser requests for credit approval; (d) to respond to inquiries from, and exchange Information with, third parties (including credit reporting agencies, financial institutions, creditors, vendors and other persons); (e) to improve and develop existing and additional Rydium products and services, to conduct surveys to better understand the needs, profiles and experiences of its customers, and to aggregate statistics gathered by Rydium about its customers, sales, products and services provided that such statistics will not include personally identifying information about Advertiser; (f) to promote to Advertiser any other products and services, except that Advertiser may, at any time, request Rydium not to use or share Information for such purpose by contacting Rydium; or (g) as required by law. From time to time (including after termination of Rydium's dealings with Advertiser), any credit bureau, bank, financial institution or other person possessing any Information is, by this consent, hereby authorized to communicate the Information upon request by Rydium. Rydium may retain and use for its own purposes all information Advertiser provides, including but not limited to contact and billing information. Advertiser agrees that Rydium may transfer and disclose to third parties personally identifiable Information about Advertiser for the purpose of approving and enabling Advertiser's participation in the Rydium Network, including to third parties that reside in jurisdictions with less restrictive data laws than Advertiser's own. Rydium may also provide information in response to valid legal process, such as subpoenas, search warrants and court orders, or to establish or exercise its legal rights or defend against legal claims. Rydium disclaims all responsibility, and will not be liable to Advertiser, however, for any disclosure of that Information by any such third party. Rydium may share aggregate (i.e., not personally identifiable) information about Advertiser with other advertisers, publishers, business partners, sponsors, and other third parties. In addition, Advertiser grants Rydium the right to access, index and cache the websites linked through the Content, or any portion thereof, including by automated means including web spiders or crawlers. The consent given herein to use or disclose Information is in addition to and does not derogate from any consent given on the attached application form or previously given to Rydium.
Acceptance
ADVERTISER HEREBY AFFIRMS THAT ADVERTISER HAS READ THIS AGREEMENT AND AGREES TO ALL OF ITS TERMS AND CONDITIONS INCLUDING IN THE ATTACHED APPLICATION FORM WHICH IS INCORPORATED INTO THIS AGREEMENT BY THIS REFERENCE. ADVERTISER ACKNOWLEDGES AND AGREES THAT IT SHALL BE BOUND BY ALL PROVISIONS OF THIS AGREEMENT EFFECTIVE UPON ITS EXECUTION OF THIS AGREEMENT SAVE AND EXCEPT THE PROVISIONS RELATING TO CREDIT WHICH MAY GRANTED BY RYDIUM, AND ACKNOWLEDGES AND AGREES THAT UPON RYDIUM'S GRANTING CREDIT APPROVAL TO ADVERTISER IN RELIANCE UPON ADVERTISER'S APPLICATION FORM, THOSE PROVISIONS SHALL ALSO BE OF FULL FORCE AND EFFECT.