Ophelos Marketing, LLC® INTEGRATED PUBLISHER AGREEMENT
This Ophelos Marketing, LLC Agreement (“Agreement”) is entered into and effective as of ____________________ (“Effective Date”), between Ophelos Marketing, LLC., a Limited Liability Company of The United Arab Emerites, whose principal business address is 1st Floor Suite 106 Nayali, Al Nayli Building, POB 94895, Dubai UAE (“Ophelos Marketing, LLC”) and ______________________________., whose principal business address is _____________________________________________________(“Company”).
TERMS AND CONDITIONS
1. Marketing Services. Company is solely responsible for using the Software to send a request for Marketing Services for any email address in Company’s proper possession and control. Company understands each email address must be transmitted in an encrypted one-way hash format so that it cannot be decrypted by Ophelos Marketing, LLC and that the Software is not designed to accept or process unencrypted email addresses.
2. Revenue; Reporting.
a. Revenue Sharing. Ophelos Marketing, LLC will report to Company the amount of money Company earned the prior day in an online report. An automated revenue sharing formula taking into account conversion rates, quality of clicks and market dynamics shall be used to determine the amount of money earned by each party.
b. Advertiser Payment Collections; Adjustments. Ophelos Marketing, LLC shall pay Company within forty-five (45) calendar days from the end of each month in which the revenue was generated. Ophelos Marketing, LLC shall not be obligated to pay Company for amounts otherwise due if Ophelos Marketing, LLC: (i) is unable to collect the applicable payments from Advertisers, or (ii) is required to refund an Advertiser payment due to poor traffic quality, or (iii) determines that a click is not valid because it was generated by a bot, script, device or person lacking a bona fide interest in the advertisement which was clicked upon, or (iv) discovers a material breach by Company of this Agreement. Ophelos Marketing, LLC reserves the right to withhold payments pending investigation of Company’s account for any of the aforementioned reasons, and may charge back Company’s account in whole or part depending upon the results of such investigation. Further, Company acknowledges and agrees that Ophelos Marketing, LLC may offset from any payment under this Agreement any delinquent amount owed by Company, or any parent, subsidiary, or affiliate of Company, to Ophelos Marketing, LLC or any parent or subsidiary company of Ophelos Marketing, LLC. Company shall pay all taxes imposed by any government entity on Company in connection with Company’s performance of this Agreement.
c. Reporting. Ophelos Marketing, LLC shall provide to Company at least daily reports reasonably sufficient to reflect estimates of revenue generated from the Marketing Services. DUE TO Ophelos Marketing, LLC’S AGREEMENTS WITH ADVERTISERS, REVENUE ESTIMATES CANNOT BECOME FINAL AND BINDING UNTIL SIXTY (60) CALENDAR DAYS AFTER THE END OF THE MONTH IN WHICH THE TRAFFIC WAS GENERATED.
3. Proprietary Rights.
a. Ophelos Marketing, LLC Limited License to Company.
i. Grant. Subject to the terms and conditions of this Agreement, Ophelos Marketing, LLC grants Company a non-exclusive, fully-paid, royalty-free, non-assignable, non-transferable, non-sub licensable, worldwide, revocable right and license in use of the Licensed Products solely for the purposes set forth in this Agreement.
ii. License Restrictions. Except as expressly granted in this Agreement, Ophelos Marketing, LLC owns and retains all right, title and interest in the Licensed Products. This Agreement does not transfer ownership rights of any nature in the Licensed Products to Company or any third party. Company agrees to retain all copyright and trademark notices on the Licensed Products and to follow all requirements reasonably made by Ophelos Marketing, LLC, as further described herein, to protect Ophelos Marketing, LLC’s intellectual property rights in the Licensed Products.
b. Protection of Ophelos Marketing, LLC Intellectual Property. Ophelos Marketing, LLC grants the above limited license to Company subject to the following conditions:
i. Company acknowledges that the Software, Marketing Services, Licensed Products, proprietary know-how and technology, logos and term Ophelos Marketing, LLCs™ (together, the “Intellectual Property”), are the exclusive proprietary property of Ophelos Marketing, LLC and Company shall have no right to use the Intellectual Property for any purpose, including to develop a competitive product, or the use of Ophelos Marketing, LLC trademarks in business collateral, without the express written authority of Ophelos Marketing, LLC, and then only in accordance with instructions provided by Ophelos Marketing, LLC.
ii. Company agrees not to copy, modify, duplicate, decompile, disassemble, reverse engineer, or reduce to a human perceivable form or otherwise alter the Software, XML formatted feed, Licensed Products or any part thereof or to create derivative work(s) or a competitive product based on it. Notwithstanding the preceding sentence, and subject to the limitations of liability and disclaimers of warranty set forth herein: (1) sample code provided to Company may be modified by Company for the sole purpose of learning how to effectively use and implement the Marketing Services; and (2) Ophelos Marketing
, LLC may provide stand-alone client software which may be modified by Company, that may assist in implementation of the Marketing Services, and which does not constitute Intellectual Property.
iii. Company agrees to follow all requirements reasonably made by Ophelos Marketing, LLC to protect the Intellectual Property, patents related thereto and any related intellectual property, all trade names and designs whether covered by trademark, domain name registration or otherwise, all copyrights, trade secrets, Confidential Information and all other intellectual property owned, licensed or hereinafter acquired by Ophelos Marketing Network, LLC to perform this Agreement.
c. Confidential Information. A Party receiving Confidential Information agrees (1) that it is claimed to be a trade secret of the other Party, (2) not to disclose it to any third party or use any of such Confidential Information for its own use or for any purpose except as necessary and consistent with the terms of this Agreement, (3) to limit the use of and access to such Confidential Information to such employees who have a need to know such Confidential Information, (4) that it will promptly notify the other Party in writing of any unauthorized disclosures and/or use thereof. The aforementioned notice shall include a detailed description of the circumstances of the unauthorized disclosure or use and the parties involved therewith.
d. User Data. Excluding the Email Addresses themselves, any and all User Data shall be the sole and exclusive property of Ophelos Marketing, LLC and shall become the Confidential Information of Ophelos Marketing, LLC. Company shall have no rights whatsoever to User Data generated under this Agreement.
e. Injunctive Relief. In the event of an unauthorized use, reproduction, distribution or disclosure of any Confidential Information, the Parties agree that the disclosing party will not have an adequate remedy at law. Therefore, injunctive or other equitable relief may be appropriate to restrain such use, reproduction, distribution or disclosure, as detailed in the section of this Agreement on Equitable Remedies.
4. Equitable Remedies. The Parties agree that it is impossible to measure in money the damages which will accrue to Ophelos Marketing, LLC if the Company breaches or threatens to breach any of the covenants, agreements or obligations set forth in this Agreement pertaining to confidentiality or the protection of intellectual property. Accordingly, if any action or proceeding is commenced by or on behalf of Ophelos Marketing, LLC to enforce any of the provisions contained in this Agreement pertaining to confidentiality or the protection of intellectual property, the Company hereby waives the claim or defense that Ophelos Marketing, LLC has an adequate remedy at law or has not been or is not being irreparably injured by such breach or threatened breach, and the Company will not raise such claim or defense in any such action or proceeding. The Company further agrees that Ophelos Marketing, LLC shall be entitled to temporary and permanent injunctive relief to restrain any breaches or further violations of those provisions in this Agreement, and waives any otherwise applicable requirements for Ophelos Marketing, LLC to post bond; and the Company further agrees that this right to injunctive relief shall be in addition to any and all other remedies and damages, including, without limitation, court costs and reasonable attorneys’ fees. All rights conferred under this Agreement or by any other instrument or law shall be cumulative and may be exercised singularly or concurrently.
5. Third Party Beneficiaries. No Third Party Beneficiaries exist.
6. Indemnification. COMPANY SHALL DEFEND, INDEMNIFY AND HOLD Ophelos Marketing, LLC, AND ITS KEYWORD NETWORK PARTNERS AND THEIR ADVERTISERS HARMLESS FROM AND AGAINST ANY JUDGMENT, LOSS, DAMAGE, CLAIM OR EXPENSE ARISING OUT OF A CLAIM BY A THIRD PARTY RESULTING FROM ANY BREACH OF ANY REPRESENTATION OR WARRANTY OF COMPANY OR IT’S PARTNERS SET FORTH HEREIN, INCLUDING REPRESENTATIONS OF COMPANY’S AND IT’S PARTNERS COMPLIANCE WITH STATE AND FEDERAL LAWS AND REGULATIONS, SUCH AS THE CAN-SPAM ACT OF 2003, GOVERNING THE DISTRIBUTION OF COMMERCIAL ELECTRONIC COMMUNICATION OVER THE INTERNET. This indemnity is conditioned upon: (a) Ophelos Marketing, LLC’s prompt notification to Company of any claim for which indemnity is sought; (b) such reasonable cooperation with Company as Company may request; (c) selection of legal counsel by Company with consent of Ophelos Marketing, LLC, which consent shall not be unreasonably withheld; and (d) prompt tender of the control of the defense and settlement of any claim to Company. Further, Company shall not enter into any settlement or compromise of any claim without Ophelos Marketing, LLC’s prior written consent, which shall not be unreasonably withheld. Finally, Ophelos Marketing, LLC may retain its own legal counsel in the matter for which it is indemnified under this provision, at Ophelos Marketing, LLC’s sole cost and expense, and Company agrees to execute a joint defense agreement with Ophelos Marketing, LLC if such counsel is retained.
7. Representations; Warranties; Limitation of Liability.
a. Company’s Warranties and Representations. Company warrants and represents that:
i. It is either not acting as an agent of any principal(s) in obtaining Marketing Services from Ophelos Marketing Ophelos Marketing, LLC under this Agreement or agrees to unconditionally bear the obligations or payments which may otherwise fall on such principal(s) arising from the terms and conditions of this Agreement, notwithstanding the fact that Company is acting as an agent; and
ii. Any commercial Email sent by the Company pursuant to this Agreement shall: (1) only be sent to the Database, as defined herein; (2) not be transmitted to any recipient who has declined to receive additional Email from the list owner (after ten days elapsed from such declination); (3) readily identify the list owner in the “from” line of each email sent in performance of this Agreement to a reasonable person; (4) implement the Ophelos Marketing, LLC footer template to advertise or promote Company’s product, service, or Internet web site in each email sent in performance of this Agreement sufficiently to qualify Company as a “sender” under the CAN-SPAM Act of 2003, 15 U.S.C. § 7702(16)(A); (5) use in the “subject line” the specific language provided by Ophelos Marketing, LLC; (6) include the specific campaign and creative chosen by the Software which shall be mailed to the designated Users as requested of and returned via the Software; and (7) at all times comply with all applicable state and federal laws, rules, and regulations, including without limitation the CAN-SPAM Act and all rules and regulations promulgated thereunder, as well as regulations governing U.S. export controls and federal election campaign contributions; and
iii. Notwithstanding anything to the contrary in this Agreement, any new list owner created by Company specifically for performance of this Agreement shall be used by Company solely and exclusively for performance of this Agreement, and Company shall not permit any third party to use such list owner for any other purpose whatsoever; and
iv. It has a publicly posted privacy policy the terms of which permit Company to utilize Email and any other data collected for performance of obligations under this Agreement, and which explicitly lists by name each List Owner used by Company in performance of this Agreement; and
v. It shall not alter any of the advertising creatives that are a part of the Licensed Products without the prior written consent of Ophelos Marketing, LLC, and shall not add any content in or around the creative provided by Ophelos Marketing, LLC that contains any gambling, inappropriate, patently offensive or pornographic content; and
vi. At least once every two (2) days, it shall apply against its database the suppression list set forth in a report provided by Ophelos Marketing, LLC; and
vii. It will not alter the click tracking links returned by Ophelos Marketing, LLC via the Software except to accommodate a redirect for Company’s internal tracking purposes; and
viii. It shall not intentionally distribute unsolicited Email; and
ix. It shall not undertake activity which circumscribes, circumvents or undermines a User’s expressed intent to effectively unsubscribe from the Database.
x. IT UNDERSTANDS THE MARKETING SERVICES DO NOT AND ARE NOT INTENDED TO PROVIDE OR DISPLAY COMPANY’S PHYSICAL POSTAL ADDRESS OR A MECHANISM TO UNSUBSCRIBE FROM FUTURE EMAIL SENT BY COMPANY AS REQUIRED BY CAN-SPAM AND OTHER LAW AND REGULATIONS, AND THAT FAILURE TO INCLUDE A FUNCTIONING RETURN ELECTRONIC MAIL ADDRESS OR OTHER INTERNET-BASED MECHANISM, CLEARLY AND CONSPICUOUSLY DISPLAYED, PERMITTING A USER TO UNSUBSCRIBE OR OPT-OUT OF FUTURE EMAIL FROM COMPANY, IS A VIOLATION OF LAW.
xi. Company will not create a product or service that is competitive to the Licensed Products, in whole or in part, including solutions (a) that display Promotional Links on a cost-per-click basis within emails or (b) that help a third party determine email offers to deliver to their users based on behavior data.
xii. Company shall tender in writing opt-in data (including at least IP address, opt-in date, and opt-in time) on any User within two business days of any written request by Ophelos Marketing, LLC.
b. Ophelos Marketing, LLC’s Warranties and Representations. Ophelos Marketing, LLC warrants and represents that: (1) it is a Limited Liability Company duly organized and has full power and authority to enter into this Agreement; and (2) it shall use commercial best efforts to ensure that no gambling, patently offensive or pornographic promotions or images are stored or maintained in its available inventory for performance of this Agreement.
c. Disclaimer of Warranties. EXCEPT AS SET FORTH HEREIN, NEITHER PARTY MAKES ANY REPRESENTATIONS, AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE AND INCLUDING ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, Ophelos Marketing, LLC SPECIFICALLY DISCLAIMS ANY WARRANTY REGARDING THE ERROR-FREE, DISRUPTION-FREE OR INTERRUPTION-FREE NATURE OF THE MARKETING SERVICES.
d. Limitation of Liability. UNDER NO CIRCUMSTANCES WILL Ophelos Marketing, LLC BE LIABLE TO COMPANY UNDER ANY CONTRACT, STRICT LIABILITY, NEGLIGENCE OR OTHER THEORY IN LAW OR EQUITY, FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOST PROFITS, REVENUE OR DATA IN CONNECTION WITH THIS AGREEMENT, EVEN IF Ophelos Marketing, LLC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF SUCH DAMAGES ARE FORESEEABLE. TO THE FULLEST EXTENT PERMITTED BY LAW AND NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, Ophelos Marketing, LLC’S TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE NET AMOUNT PAID BY Ophelos Marketing, LLC TO COMPANY DURING THE THREE (3) MONTHS PRIOR TO THE DATE COMPANY’S CAUSE OF ACTION AROSE. EXCEPT AS SET FORTH HEREIN, Ophelos Marketing, LLC DISCLAIMS ALL LIABILITY OF ANY KIND RELATED TO ITS ADVERTISERS, LICENSORS AND OTHER SUPPLIERS. IN ADDITION, 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.
8. Term; Survival.
a. Term. This Agreement is effective on the Effective Date and may be terminated upon written notice by one party to the other, for any reason or no reason.
b. Survival. The provisions of the Section entitled “Proprietary Rights,” the Section entitled “Equitable Remedies,” the Section entitled “Third Party Beneficiaries,” the Section entitled “Indemnification,” the Section entitled “Limitation of Liability,” and all payment obligations incurred during the term of this Agreement shall survive the expiration, cancellation or termination of this Agreement for a period of three (3) years. All other rights, obligations and grants made to the Parties shall cease upon expiration, cancellation or termination of this Agreement.
9. General Provisions.
a. Non-Solicit. During the term of this Agreement, Company agrees that it shall not solicit any of Ophelos Marketing, LLC’s employees to leave the employ of Ophelos Marketing, LLC without the prior written consent of Ophelos Marketing, LLC.
b. Assignment. Neither party may assign this Agreement without prior consent of the other party, which such consent shall not be unreasonably withheld. Notwithstanding the foregoing, either party may assign this Agreement without consent (i) to a parent or a majority-owned subsidiary of such party, and (ii) pursuant to a merger, acquisition, amalgamation, consolidation or other corporate reorganization, or the sale of all or substantially all of its business or assets. Any assignment or attempted assignment in contravention of this provision shall be null and void.
c. Authority. Each Party represents and warrants that it is a business duly organized and in good standing in its state of creation or incorporation, and has full power and authority to execute and be fully bound by the terms of this Agreement.
d. Notices. Unless otherwise indicated, notice under this Agreement to Ophelos Marketing, LLC shall be transmitted by registered mail or reputable overnight courier to its address listed above, and notice to Company shall be transmitted via email, registered mail, reputable overnight courier or via facsimile to the contact information provided by Company to Ophelos Marketing, LLC. Either party may update its contact information through appropriate notice.
e. Entire Agreement and Amendment. This Agreement and any attachment(s) hereto, are fully incorporated and integrated herein, and set forth the entire understanding of the Parties with respect to the subject matter of this Agreement, superseding any prior or contemporaneous agreements or understandings, whether written, electronic or oral, which may have existed between the Parties on such subject matter. This Agreement will not be varied, amended, or supplemented except as described in the following sentence. Any amendment, interpretation or waiver of any of the provisions of this Agreement shall only be effective in a writing which makes specific reference to this Agreement and is signed (electronic signature shall suffice) by both Parties.
f. Governing Law and Venue. This Agreement is to only be construed in accordance with the laws of the country of Spain, as applicable to contracts performed entirely within the Spain. The Parties consent to the sole and exclusive jurisdiction of, and venue in, the courts of the country of Spain. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
g. Force Majeure. Except as otherwise expressly stated herein, neither party shall be liable in damages or have the right to cancel or terminate this Agreement for delay or default in performance if such delay or default is caused by unforeseen conditions beyond reasonable control of the delaying or defaulting party, including acts of God, restrictions by a government authority, wars, revolutions, strikes (other than any strike by the delaying or defaulting party’s employees), fires, floods, earthquakes, embargoes, or degradation of telephone or other communications services, including but not limited to, degradation of all or part of an Internet backbone.
h. Waiver. Failure by either Party to enforce at any time or for any period of time any provisions of this Agreement shall not be construed as a waiver of such provisions, and shall in no way affect a Party’s right to later enforce such provisions.
i. Severability. In the event any one or more of the provisions of this Agreement shall for any reason be held to be invalid, illegal or unenforceable by a court of law, the remaining provisions of this Agreement shall be unimpaired, and the invalid, illegal or unenforceable provision shall be replaced if possible by a mutually acceptable provision, which being valid, legal and enforceable, comes closest to the intention of the Parties underlying the invalid, illegal or unenforceable provision.
j. Captions. Underlined or boldfaced section and paragraph captions in this Agreement are for convenience and reference only; the words contained therein shall in no way be held to explain, modify, amplify or aid in the interpretation, construction or meaning of any right or obligation in this Agreement.
k. Gender and Number. Whenever herein the singular number is used, the same shall include the plural and vice versa, and the neuter gender includes the feminine and masculine genders.
l. Relationship of the Parties. Nothing in this Agreement constitutes or creates a joint venture, partnership or other similar arrangement between the Parties. No Party may act as an agent for the other Party except as expressly stated in this Agreement.
m. Counterparts. This Agreement may be executed in one or more counterparts, each in the English language and each of which shall be deemed to be an original instrument, and all such counterparts shall together constitute the same agreement. A facsimile or electronic signature, or reasonable indication of assent through electronic means, shall have the same force and effect as a handwritten signature.
10. Definitions.
a. “Advertiser” means any business that supplies Promotional Links, as defined below, to be inserted in or linked to an Ophelos Marketing, LLC advertisement unit, whether or not directly solicited by Ophelos Marketing, LLC.
b. “Confidential Information” means all information, whether obtained in written, oral or electronic form, of a proprietary nature which is released by one Party to the other or otherwise obtained by a Party, including without limitation all know-how, business processes, designs, drawings, source code, targeting methodologies, algorithms, object code, customer data, business plans, contact lists, research, business opportunities, technology, related information and third-party confidential information. Confidential Information, however, does not include information that a Party can demonstrate by a preponderance of the evidence: (a) is now or subsequently becomes generally available to the public through no fault or breach on such Party’s part; (b) rightfully in such Party’s possession prior to disclosure to such Party; (c) rightfully obtained by such Party from a third party who has the right to transfer or disclose it; or (d) is third party software and/or documentation provided by such Party and accompanied by licensing terms that do not impose confidentiality obligations on such use.
c. “Database” means Company’s collection of email addresses, each of which was obtained from a bona fide third party user who expressly consented to receive commercial advertisements via email, either in response to a clear and conspicuous request for such consent or at their own initiative, and has not opted out of receiving such email while having a clear and conspicuous opportunity to do so (a “User”).
d. “Email” means commercial electronic mail messages.
e. “Keyword Network” are the search engines, advertisers and other partners with whom Ophelos Marketing, LLC has contracted to provide Promotional Links and similar text-based advertisement links which when clicked on redirect a User to a particular Website.
f. “Licensed Products” means the Marketing Services, including the Software, sample code and documentation, and advertising creatives (meaning, without limitation, the full graphic advertisements pulled by Company from Ophelos Marketing, LLC’s servers in performance of this Agreement).
g. “Marketing Services” are the services, such as Ophelos Marketing, LLC’s XML formatted stats feed, technical and graphic design and presentation services and proprietary know-how and technology, including its Software (further defined below), which Ophelos Marketing, LLC undertakes, utilizes and/or licenses to Company for use with Company’s Database, Website or other property of Company, along with Ophelos Marketing, LLC’s advertiser relationships.
h. “Promotional Link” means a text-based advertisement, often referred to as a keyword advertisement, sold by companies substantially similar to Google® and Yahoo! Search Marketing™, that when clicked upon redirects a User, as defined herein, to a Website promoting a product, service or other initiative.
i. “Software” is Ophelos Marketing, LLC’s proprietary application programming interface, or automated API commonly referred to as Ophelos Marketing, LLCs Integrated, which interfaces with Company’s mail transfer agent (that is, Company’s technology to transfer email to desired recipients) and, together with Ophelos Marketing, LLC’s targeting technology, behavior data and advertiser list, enables Company to deliver email to the Database.
j. “User Data” means any non-personally identifying information acquired about a unique email address, collected by Ophelos Marketing, LLC through use of its proprietary technology. Such information includes but is not limited to click-throughs, emails opened and other information collected through the use of cookies or other technical means and stored in log files.
REVIEWED, AGREED, AND ACCEPTED:
FOR COMPANY FOR Ophelos Marketing LLC
By: By:
Name: Name:
Title: Title:
Date: Date:
