Terms and Conditions
PLEASE CAREFULLY READ THESE TERMS AND CONDITIONS BEFORE AGREEING TO JOIN THE TMN Network.
This TMN Network Publisher Agreement (“Agreement”) is made by and between Publisher ("Publisher") and TechMediaNetwork Inc. (“TMN”) (together, the “Parties”) and includes the Summary Terms to which these terms and Conditions are attached. "Publisher" means any entity identified in the Summary Terms and any of its affiliates, which shall also be bound by the terms of this Agreement.
1. Overview
TMN operates a network of premium technology information - related sites that includes several owned-and-operated sites (including TopTenREVIEWS, Space and LiveScience) and a limited selection of affiliated independent publishers. During the term of this Agreement, the TMN sales force will exclusively represent Publisher’s video and display advertising inventory. TMN will represent Publisher to both national and local advertisers. In addition, TMN may contract with appropriate third-party sales organizations to monetize unsold domestic and international inventory on Publisher sites. TMN and Publisher have entered this Agreement with the goals of growing the audience for and monetization of the Publisher Websites, growing the TMN Network’s overall users and deriving mutual financial benefit. The parties agree to collaborate to deliver the following services, as specified below and in the Attachments hereto.
2. Advertising Services
Publisher hereby grants TMN the exclusive, worldwide right to manage and sell all video, display and other advertising and sponsorships on the Publisher Websites. TMN shall select and serve marketing messages from third parties and from TMN itself in the form of banners, text links, video streams, pre-rolls, headline links, sponsorships, buttons and other such creative units selected by TMN on the Publisher Websites and share a percentage of revenue resulting from advertisers paying for such Advertising with Publisher according to the terms described in the Summary Terms and in Sections 5 of this Agreement.
In this regard, Publisher agrees to:
a.
Display Advertising on pages of the Publisher Websites according to the terms of this Agreement and to implement all advertising formatting, tags, and code necessary in order for TMN to exercise its rights under this Agreement, with TMN having final approval of the placement and “look and feel” of the Advertising and all references to TMN in the Publisher Websites.
b.
Implement standard IAB ad units (728x90, 300x250, 160x600) per TMN implementation guidelines.
c.
Install Google Analytics code on all pages of the Publisher Websites and provide TMN with access to that data.
d.
Implement a TMN Network footer module on every page of the Publisher Websites, which will identity the Publisher Websites as part of TMN and include links as deemed appropriate by TMN, including:
e.
Educate the TMN sales teams about the Publisher Website(s), audience, previous successful campaigns, and provide any introductions possible.
f.
Cooperate in good faith to develop and accommodate content syndication widgets, advertorials, product placements and other similar content/technologies to create unique advertising products, cross-network syndication and branding opportunities.
g.
Sign and maintain Traffic Assignment Letters (TALs) for both comScore and Nielsen, assigning traffic numbers to TMN.
h.
Implement comScore and Quantcast tracking tags (code) to the site to provide the most accurate tracking for potential advertisers.
In this regard, TMN agrees to:
a.
Link to Publisher Websites from the TechMediaNetwork Website and reference the Publisher Websites as part of the TMN Network.
b.
Announce as TMN deems appropriate the addition of Publisher Websites to the TMN Network. TMN may include the Publisher Websites in the TMN Network advertising, marketing materials and publicity releases.
Notwithstanding the foregoing, except as may otherwise be expressly set forth in the Summary Terms, nothing herein shall require TMN to provide Publisher with any particular volume or type of Advertising and TMN makes no guarantee regarding the amount of any Advertising payments to be made to Publisher under this Agreement
3. Monetization Services
TMN will work with the Publisher to assist in monetizing the Publisher's site(s). This collaboration can include optimizing Google Adsense, utilizing affiliate programs, implementing ecommerce suggestions and other revenue generating ideas. The Publisher will work with TMN to implement the suggestions they feel will benefit both TMN and the Publisher. Unless specified in the Summary Terms or in another section of this agreement the Publisher will have the right to not implement any monetization services excluding services described in section 2. Except as may otherwise be expressly set forth in the Summary Terms, nothing herein shall require TMN to provide Publisher with any particular amount of revenue or type of monetization and TMN makes no guarantee regarding the amount of any monetization payments to be made to Publisher under this Agreement
4. Monetization Services
Publisher shall author, update, edit, brand and oversee (collectively, “Publish”) the Publisher Websites, as described below in this Section (“Editorial Services”). In this regard, Publisher agrees to:
a.
Present the Publisher's Websites in a way that adheres at all times to the Editorial Standards for TMN Network Publishers set forth in Attachment (“Editorial Standards”) and regularly maintain and monitor the Publisher Websites to assure compliance with the Editorial Standards.
b.
Take commercially reasonably measures to maintain the web server supporting the Publisher Websites in order to ensure that the Publisher Websites are available twenty-four (24) hours a day, every day of the year, subject to scheduled maintenance, unforeseeable outages, and force majeure events. Publisher shall make commercially reasonable efforts to maintain 99.9% uptime and shall notify TMN as soon as Publisher becomes aware that its web server is not operating and as soon as it becomes available again.
c.
Not include in the Publisher websites or any related links any software, tools or text that could cause TMN’s or its users’ websites, systems and networks harm from reduced system performance, system unavailability, data loss, or other damage.
d.
Ensure that the Publisher Websites accurately and adequately disclose, either through a privacy policy or otherwise, how Publisher collect, use, store and disclose data collected from visitors, including, where applicable, that third parties (including advertisers) may serve content and/or advertisements and collect information directly from visitors and may place or recognize cookies on visitors’ browsers.
5. Compensation and Revenue Share
In consideration of the obligations to be performed by Publisher under this Agreement, TMN agrees to compensate Publisher as follows:
a.
Advertising Revenue Share. Adjusted Gross Advertising Revenue received by TMN from third-party advertisers for Advertising placed on the pages of the Publisher Websites shall be shared by TMN and Publisher on the basis set forth in the Summary Terms. “Adjusted Gross Advertising Revenue” is Gross Advertising Revenues less out-of-pocket expenses including but not limited to agency commissions and fees, sales commissions and fees, and creative services. “Gross Advertising Revenues” is revenue actually invoiced to advertisers, less chargebacks, credits, bad debt, refunds and other such offsets. When no Banners from third-party advertisers are placed in the Advertising units on the Publisher Websites, TMN may at its option place TMN advertisements and/or other bonus third-party ads in any available Advertising units until new paid third-party ads become available, with no compensation to Publisher for such “house ads” or bonus ads. TMN may also in its discretion run Publisher “house ads” on other TMN Network sites.
b.
Monetization Revenue Share.Revenue received by TMN from third-party vendors for links, ads, tags or code placed on the pages of the Publisher Websites shall be shared by TMN and Publisher on the basis set forth in the Summary Terms.
c.
Payment Amount.The Payment amount earned on a monthly basis will be paid no more than sixty (60) days following the last day of the calendar month in which the revenue was earned. Revenue will be accumulated and paid out to Publisher once the payout amount exceeds $100 USD.
d.
Additional Information.With each remittance from TMN as set forth in this Section 5, TMN shall provide Publisher with a statement setting forth the fees earned by Publisher, together with the number of advertisers and other reasonable supporting information regarding revenues accrued during the relevant Advertising period for which such payment is made.
e.
Confidentiality of Fact and Amount of Payment.Publisher covenants and agrees to keep strictly confidential the terms of this Agreement, including the amount and structure of the financial payments under this Agreement, shall not disclose such information to any other person or entity, unless required by applicable securities or other laws, law or disclosed in confidence to Publisher’s attorneys, accountants or other advisors.
6. Publisher Licenses
Publisher grants to TMN:
a.
A worldwide, transferable, royalty-free license to link to the Publisher Websites and to serve Advertising into the Publisher Websites as set forth in the Agreement.
b.
A worldwide, transferable, royalty-free license to copy and use Publisher’s (and Publisher’s principals’, writers’ or other employees’, as applicable) name, logo, likeness, photograph and biographical material, and to copy and use screen-shots or other material from or information about the Publisher Websites in order to drive traffic and/or sell Advertising and for promotional purposes in the TMN Network marketing materials and PR releases and in connection with any other uses contemplated by this Agreement.
TMN grants to publisher a worldwide, transferable, royalty-free license to use the TMN Network name, logo, and other related creative materials in the TMN Network footer module on every page of the Publisher Websites as contemplated herein. Except as expressly set forth in this agreement, neither Party grants the other Party any other licenses to its content, proprietary materials, and intellectual property, including all copyrights, trademarks, trade names, service marks, and patents, and all such rights are reserved.
7. Mutual Representations and Warranties
Each Party represents and warrants to the other Party that:
a.
Each Party has the right, power and authority to enter into this Agreement and perform its obligations as set forth herein, and there are no agreements or arrangements, written or oral, that would be breached upon the respective Party’s execution or performance of this Agreement, that would restrict, interfere or conflict with the respective Party’s obligations under this Agreement, or that would diminish the other Party’s rights granted under this Agreement.
b.
Each Party shall comply with all the terms, conditions, obligations and restrictions in this Agreement, and with all applicable laws, rules and regulations with respect to its performance under this Agreement.
8. Indemnification
Each Party shall defend, indemnify and hold harmless the other Party, its affiliates, employees, successors and assigns, against and from any and all third party claims, liabilities, damages, fines, penalties or costs of whatsoever nature (including reasonable attorney’s fees and costs), caused by or arising out of its breach of its covenants, representations and warranties under this Agreement. The Party seeking indemnification shall promptly notify the other Party of any claims, etc. for which it is seeking indemnification, and the other Party shall have the right to control the defense and settlement of any such claims, and the Party being indemnified shall reasonably cooperate therewith.
9. Term and Termination
This Agreement will commence on the date specified in the Summary Terms and continue for the term specified therein (“Term”). Unless otherwise specified in the Summary Terms, this initial term will be automatically renewed thereafter annually for consecutive twelve (12)-month periods provided that a written notice to terminate is not submitted by either Party to the other at least sixty (60) days before the end of the current term.
Either Party may terminate this Agreement prior to the end of the Term upon thirty (30) days’ written notice for any material breach by the other Party of this Agreement, if the material breach is not cured within the 20-day notice period. In addition, TMN shall have the right to terminate this Agreement at any time upon sixty (60) days’ written notice if TMN's revenue stream is adversely affected or it terminates and discontinues the TMN Network entirely, without further liability to Publisher beyond amounts earned through the date of such termination.
Upon any termination or expiration of this Agreement, the following shall occur:
a.
TMN and Publisher shall promptly remove all Advertising and all TMN Network identification and links from the Publisher Websites.
b.
Following such termination or expiration, TMN shall make a final remittance to Publisher of its share of outstanding Adjusted Gross Advertising Revenue according to the terms of the Summary Terms and Section 4.
c.
All applicable sections shall survive the termination or expiration of this Agreement for any reason.
10. Right of First Refusal
a.
Notice. If at any time Publisher proposes to sell, license, lease or otherwise transfer all or any portion of its interest in any of the Publisher Websites, then Publisher shall promptly give TMN written notice of Publisher’s intention to sell (the “Notice”). The Notice shall include (i) a description of the Website’s content, (ii) the name(s) of the prospective purchaser(s), (iii) the proposed consideration, and (iv) the material terms and conditions upon which the proposed sale is to be made. The Notice shall certify that Publisher has received a firm offer from the prospective purchaser(s) and in good faith believes a binding agreement for the sale is obtainable on the terms set forth in the Notice. The Notice shall also include a copy of any written proposal, term sheet or letter of intent or other agreement relating to the proposed sale. For this purpose, sale or transfer (other than for estate planning purposes to a trust or family member) of a majority of the stock or other equity ownership or management control of Publisher shall be treated as a proposed sale of the Publisher Websites and shall trigger the Notice and other provisions of the Section in the same manner as a sale of the Publisher Websites themselves.
b.
Right of First Refusal.TMN shall have an option for a period of fifteen (15) business days from receipt of the Notice to elect to purchase Publisher’s interest in such Website(s) at the same price and subject to the same material terms and conditions as described in the Notice. TMN may exercise such purchase option by notifying Publisher in writing before expiration of the 15 business-day period. In this event, Publisher agrees to enter into a formal sale agreement on terms substantially similar to the terms set forth in the Notice and containing such other terms as are customary in such transactions.
11. Disclaimer of Warranties
ALL TMN NETWORK ADVERTISING, CONTENT AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” AND NO ASURANNCE IS MADE REGARDING UNINTERUPTED OR ERROR-FREE OPERATION. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, EACH PARTY HEREBY DISCLAIMS ANY AND ALL WARRANTIES, GUARANTEES, REPRESENTALTIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS, OR OTHER INDUCEMENTS, EXPRESS, IMPLIED ORAL, WRITTEN, OR OTHERWISE EXCEPT AS EXPRESSLY SET FORTH HEREREIN. TMN DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, REGARDING THE TMN NETWORK, ANY ADVERTINSING OR OTHER CONTENT PROVIDED TO PUBLISHER, AND THE TMN NETWORK WEBSITE, INCLUDING, WITHOUT LIMITAION, THE IMPLIED WARRANTIES OF NONINFRINGMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE GERERALITY OF THE FOREGOING, PUBLISHER UNDERSTAND AND AGREE THAT NEITHER TMN NOR ITS AFFILIATES OR AGENTS ARE RESPONSIBLE FOR, AND MAKE NO REPRESENTAIONS OR WARRANTIES REGARDING, ANY ADVERTISTING OR CONTENT OR THAT PUBLISHER WILL BE ENTITLED TO RECEIVE ANY PARTICULAR LEVEL OF TRAFFIC OR REVENUE HEREUNDER UNLESS OTHEREWISE PROVIDED IN THE SUMMARY TERMS.
12. Limitation of Liability
EXCEPT FOR A PARTY’S OBLIGATIONS UNDER THE INDEMNIFICATION PROVISIONS SET FORTH IN SECTION 7 ABOVE WITH RESPECT TO AMOUNTS PAYABLE TO THIRD PARTIES, NEITHER PARTY NOR ITS AGENTS OR AFFILIATES SHALL BE LIABLE UNDER OR IN RELATION TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, OR PUNITVE DAMAGES (INCLUDING ANY LOSS OF REVENUE, PROFITS OR DATA), WHETHER IN CONTRACT OR TORT, OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TMN’S AGGREGATE LIABILITY TO PUBLISHER UNDER THIS AGREEMENT FOR ANY CLAIM IS LIMITIED TO THE AMOUNT PAID BY TMN TO PUBLISHER DURING THE THREE-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CLAIM AROSE.
Publisher will not be entitled to make any claim nor commence any proceeding arising out of any transactions pursuant to this Agreement unless the same is brought within one (1) year from the date the cause of action arose. 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 essential basis of the bargain between the parties.
13. Confidentiality
During the term of this Agreement and for three (3) year period thereafter, Publisher will not to disclose any confidential or proprietary information TMN provides to Publisher or Publisher otherwise obtain about TMN Network during the course of this Agreement. Such information includes, but is not limited to, (1) all TMN or TMN-licensed software, technology, programming, technical specifications, materials, guidelines and documentation, (2) information and data regarding traffic, usage, advertisers, advertising buys, and financial performance of the TMN Network or any participant therein, and (3) all of which shall belong exclusively to TMN.
14. Notices
All notices or other communications required under or regarding this Agreement shall be in writing and shall be deemed sufficient when delivered personally or sent by electronic mail or facsimile (in each case, with prompt confirmation of receipt) or upon deposit in the U.S. mail, as certified or registered first class mail, with postage prepaid, and addressed, at the principal place of business set forth in the Summary terms, unless written notice of another address shall have been provided by either Party to the other in the manner provided for in this Section. If mailed, any such notice will be considered to have been given two (2) business days after it was mailed, as evidenced by the postmark.
15. Miscellaneous
This Agreement represents the entire agreement between Publisher and TMN with respect to the subject matter hereof and supersedes all previous oral or written communications, representations or agreements. This Agreement may be modified only in writing executed by a duly authorized company officer of the Party to be charged therewith. To the extent that any of the provisions of this Agreement, or any portion thereof, shall be found to be illegal or unenforceable for any reason, such provision or portion thereof shall be modified or deleted so as to make the Agreement independent and not be affected thereby. Waiver by either party of a breach of any provision of this Agreement or the failure by either party to exercise any right hereunder will not operate or be construed as a waiver of any subsequent breach of that right or as a waiver of any other right. Except for the payment of fees hereunder, nonperformance of either party will be excused to the extent that performance is rendered impossible by strike, fire, flood, earthquake, governmental acts or orders or restrictions, power outages, failures of third parties, or disruptions to the Internet or any portion thereof, or any other reason when failure to perform is beyond the reasonable control of the nonperforming party. The terms of this Agreement shall bind, and shall inure to the benefit of, the permitted successors and assigns of the parties hereto. Notwithstanding the foregoing, this Agreement may not be assigned by Publisher without TMN’s prior written consent, and any change in majority ownership or control of Publisher shall be deemed an assignment requiring such consent to assignment. This Agreement may be assigned by TMN to a successor, with written notice to the Publisher. Nothing contained in this Agreement will be construed as creating a joint venture, partnership or employment relationship between the parties hereto, nor will either party have the right, power or authority to create any obligation or duty, express or implied, on behalf of the other. This Agreement shall be governed by the laws of the state of UTAH, without regard to the choice of law provisions thereof and any dispute arising under or relations to this Agreement or the relationship of the parties established hereby shall be subject to the exclusive jurisdiction of the state and federal courts sitting in Salt Lake County, UTAH, and each party waives any objection to such venue or any claim that it is an inconvenient forum. This Agreement can be signed in two counterparts, each of which shall be deemed an original and which together shall constitute one instrument. This Agreement may be signed with an exchange of facsimile signatures, which shall be deemed original signatures.
Attachment A
Editorial Standards for TMN Network Publishers
These Editorial Standards exist to help the Publisher and TMN achieve their goals of growing the audience for the Publisher Websites, growing TMN’s overall users and appeal to advertisers, and deriving mutual financial benefit. As outlined below, these Editorial Standards set forth some known limits for editorial content. The list of standards specified below, however, is not a comprehensive listing of prohibited conduct by Publisher, and TMN may change the Editorial Standards at any time by providing Publisher with ten (10) business days’ prior written notice. The Publisher remains fully responsible for ongoing monitoring of content on the Publisher Websites to ensure adherence with these Editorial Standards, and TMN is under no obligation to monitor the Publisher Websites for such compliance. The Editorial Standards include the following:
1. Unacceptable Content
The Publisher Websites, including all information, text, images, photographs, graphics, e-mail addresses, web pages, comments and reviews, discussion board postings and other materials contained in or linked to the Publisher Websites, may not contain, publish, link to, sell or otherwise distribute any "Unacceptable Content." Unacceptable Content is defined as content that:
a.
Is obscene, violent or pornographic or that contains adult-themed material, nudity or depictions of explicit violent or sexual acts.
b.
Is harassing, threatening, abusive, inflammatory or otherwise objectionable, including content used to harass, stalk or threaten a person.
c.
Is unlawful or that could facilitate the violation of any applicable law. rule or regulation.
d.
Offers or disseminates any fraudulent goods, services, schemes or promotions, including any make money-fast schemes, chain letters, or pyramid schemes.
e.
Is libelous, defamatory, knowingly false or misrepresents another person.
f.
Infringes upon the intellectual property rights of any third party, including the copyrights, trademarks, trade names, trade secrets or patents of such third party.
g.
Is harmful to TMN's or any other party's systems and networks, including any transmissions which may damage, interfere with, surreptitiously intercept, or expropriate any system, program, data or personal information.
h.
Violates any obligation of confidentiality, or the privacy, publicity, moral or any other right of any third party.
i.
Consists of any other content that TMN in its sole discretion deems to be Unacceptable Content.
If Publisher permits user comments and trackbacks on the Publisher Websites, Publisher shall monitor these comments and remove any that include and/or link to Unacceptable Content. Publisher shall remove any Unacceptable Content from the Publisher Websites promptly upon TMN's request.
2. Editorial Consistency
The Publisher must also continue the general topic that is the focus of the Publisher Websites at the commencement of the Agreement or provide TMN with thirty (30) days prior written notice if the focus and content of any of the Publisher Websites is substantially changing. TMN will undertake a review of the Publisher's new direction at that time to determine continued suitability for the TMN Network, and may terminate the Agreement and remove such Publisher Websites from the TMN Network if no longer deemed suitable as a result of such review.
Last Updated: 07/28/2010
