Essence Publishing Network Publisher Agreement
This Essence Publishing Network Publisher Agreement (this "Agreement") is entered into by and between user ("you") on the one hand and Essence Communications Inc. (“us" or "we") on the other, subject to you applying and being accepted to join the Essence Publishing Network ("EPN").
1. Overview. The Essence Publishing Network service (the "Service") runs on software developed and hosted by Burst Media Corporation and, its subsidiaries, third party contractors and licensees ("Service Provider"). As further described in this Agreement, we may provide you with: (i) advertisements to be placed on your site or blog ("Site"), (ii) a 'widget' to place on your site and (iii) links on Essence.com to link back to your Site. We shall share with you revenues generated by any advertisements in accordance with the terms of this Agreement. We shall have the right to discontinue the Service at any time without further liability to you. We also have the right to cancel your participation in the Service at any time if we determine that your Site does not display the Widget or Advertisements provided as expected. This determination may be made whether or not any support was provided.
We reserve the right to change any of the terms and conditions contained in this Agreement or any policies or guidelines governing the Service, at any time and in its sole and absolute discretion. Any changes will be effective upon email notification to the email address provided in your application. You are responsible for reviewing any applicable changes. Changes may be emailed and implemented without additional notice to you. Your continued use of the Service following posting of any changes will constitute your acceptance of such changes or modifications. At any time upon our request you agree to sign a non-electronic version of this Agreement. If you do not agree to any changes to this Agreement, you must terminate this Agreement pursuant to section 15.
2. Site. You represent and warrant that you write, maintain, operate or represent the your site ("Site"), and have the authority to enter into this Agreement, including the right to grant permission on behalf of the Site: to (i) link to your Site and (ii) place advertisements on the website hosting your Site. The placements, frequency, and manner of any links to the Site on Essence.com, and any use of the content on your Site ("Site Materials"), shall be determined by us in our sole discretion.
3. Advertising. We shall have the right, but not the obligation, to place advertisements on the Site ("EPN-Provided Advertisements"). The EPN-Provided Advertisements may be provided to us by a third-party advertiser or advertising distributor ("Ad Supplier"). We shall deliver to you the EPN-Provided Advertisement and you shall display the EPN-Provided Advertisement on the Site as otherwise agreed to by you and by us. Nothing herein shall require us to provide you with any EPN-Provided Advertisements and we make no guarantee regarding the amount of any payment to be made to you in connection with the EPN-Provided Advertisements under this Agreement. You shall execute and implement all reasonable advertisement campaigns that are sold by us during the Term of this agreement.
5. Quality Control. While we and Service Provider do not intend, and do not undertake, to monitor all of the content on the Site, if we at any time during the Term: (i) become aware of a breach or inaccuracy of any of your representations or warranties made herein or (ii) determine, in our sole discretion, that any content contained on the Site is unacceptable, you agree that we shall have the right to: (a) remove any link from Essence.com to the Site immediately and without notice to you; and/or (b) request immediate removal of any content on the Site and you shall comply with such request, in each case in the event that we determine, in our sole discretion, that the Site adversely affects Essence Publishing Network, its parent companies and affiliates, or advertiser clientele.
6. Revenue Share. We shall make monthly revenue share payments ("Revenue Share Payments") to you for the EPN-Provided Advertisements displayed within your site as reported by the Ad Server on the following basis: _____% of net ad revenue (after any agency discounts and commissions and fees to the Ad Server) directly related to the EPN-Provided Advertisements will be payable to you. We reserve the right to withhold payment of any Revenue Share Payments in the event of any breach of this Agreement by you.
7. Non-Exclusive Agent. During the Term of this Agreement, we shall be a non- exclusive agent for all ad inventory on your Site (including, but not limited to, any permutations, micro or sub-sites, mirror sites, white label sites, modules, chat rooms, boards, postings, wikis, or social networks derived out of or related to your Site and/or its creator/blogger). We shall allow you to continue to engage in other non-competing revenue-generating advertising programs. In addition, during the Term, we shall non-exclusively represent all ad inventory in connection with your Site's owned and/or licensed content in whatever medium said content is distributed, licensed, and/or sub-distributed off of the site.
8. Information Rights. You shall make available to us aggregate usage data regarding the Site as we reasonably request. We may retain and use for our own purposes all information you provide in connection with the Site and the Service. You agree that we may transfer and disclose to third parties (including Ad Suppliers and potential Ad Suppliers and our business partners) personally identifiable information about you for the purpose of approving and enabling your participation in the Service, including for soliciting EPN-Provided Advertisements. We disclaim all responsibility and will not be liable for any disclosure of that information by any such third party.
9. License. For the purposes of this agreement, you hereby grant us and Service Provider a non-exclusive, royalty-free, world-wide right and license: (i) to copy, cache, download, distribute, display, perform, stream, transmit the Site content and the Site Materials in order to place advertisements on the Site and perform the activities described in this agreement; (ii) to sublicense such rights to our affiliates; (iii) to link to the Site from Essence.com; and (iv) to copy and otherwise use portions of Site and the Site Materials (in original or modified form) in order to drive traffic to the Site and for other promotional purposes. For the purposes of this agreement, we hereby grant to you a non-exclusive, royalty-free, world-wide right and license (a) to copy, cache, download, store on its servers, distribute, display, perform, modify, stream, transmit, and reproduce the EPN-Provided Advertisements solely for the purposes of placing such EPN-Provided Advertisements on the Site in accordance with this Agreement and (b) to link to Essence.com from the Site as determined by us from time to time.
10. Representations and Warranties. You represent and warrant that: (i) the Site Materials are and will be your own and original creation, except for content validly licensed by you or in the public domain; (ii) the Site Materials and use of the Site Materials as contemplated herein will not: (a) constitute a libel or defamation, (b) include any pornographic, obscene or similar objectionable material, or (c) conflict with or infringe upon or violate any copyrights, trademark rights, patent rights, trade secret rights, rights of publicity or privacy or other rights of any third party; (iii) all obligations owed to third parties with respect to the development, maintenance, and operation of your Site and the Site Materials including, but not limited to, all third-party hosting, service, or licensing fees, are or will be fully paid up by you; and (iv) the Site Materials will not violate any federal, state, or local law, rule, or regulation.
11. Confidentiality. During the Term of this agreement and for a three (3)-year period thereafter, you will not to disclose any confidential or proprietary information that we provide to you or you otherwise obtain about our business or the Service during the course of this Agreement. Such information includes, but is not limited to: (i) all Essence Publishing Network software, technology, contracts, programming, technical specifications, materials, guidelines and documentation relating to the Service; (ii) click-through rates or other statistics relating to your Site's performance in the Service. NOTE: The entire registration process is included and defined as confidential information and you will keep the entire process in confidence.
12. Indemnity. You agree to indemnify, defend, and hold harmless Essence Publishing Network and Service Provider, our and Service Provider’s respective parents, affiliates, officers, directors, members, agents, and employees and advertisers and ad distributors (e.g., EPN-Provided Advertisement advertisers or advertising distributors) from and against any and all third party claims, liability, loss, and expense (including damage awards, settlement amounts, and reasonable legal fees) arising out of or related to this Agreement which may arise from your enrollment in the Service, the Site Materials, and/or your breach of any of the terms of this Agreement.
13. Compliance with Laws. You will comply with all applicable laws, ordinances, rules, regulations, orders, licenses, permits, judgments, decisions or other requirements of any applicable governmental authority. Without limiting the foregoing obligation, you agree you will comply with all applicable laws (federal, state or otherwise) that govern marketing email, including without limitation, the CAN-SPAM Act of 2003 and all other anti-spam laws.
14. Relationship of the Parties. The parties agree and acknowledge that you are an independent contractor with respect to us. You may not in any manner misrepresent or embellish the relationship between us, Service Provider and you, or express or imply any relationship or affiliation between us and you except as expressly permitted by this Agreement (including by expressing or implying that we support, sponsor, or endorse any content of your Site or the EPN-Provided Advertisements).
15. Term of the Agreement. The term of this Agreement will begin upon our written notification that your Site has been accepted to participate in the Service and shall continue for a period of one year (the "Term"). The Term shall automatically renew for up to two (2) successive one (1) year periods unless earlier terminated by us as set forth herein. Notwithstanding the foregoing, we may terminate this Agreement at any time, with or without cause, by giving you written notice of termination. You may terminate this Agreement upon thirty (30) days written notice to Essence Communications, Inc., by email to firstname.lastname@example.org, provided that you receive written confirmation of our receipt of your termination notice. Upon the expiration or termination of this Agreement for any reason, you will immediately cease use of, and remove from your site, all references to your participation in the Service, all EPN-Provided Advertisements, and all other materials provided by or on our behalf to you pursuant hereto or in connection with the Service.
16. Mandatory IASH Requirements. In the event that you are UK-based, then the following conditions, as expressed below, MUST apply to any inventory that is being sold by an IASH member, subject to section 4 of the IASH Code of Conduct.
16.1 The Publisher of the Site either owns or is entitled to use the content displayed on all URLs on which activity is running;
16.2 The Site does not knowingly include any 'virus' or other destructive programming or device that could impair or injure any data, computer system or software;
16.3 The Site does not knowingly 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;
16.4 The Site does not knowingly contain content originated by or on behalf of the site publisher that is defamatory, violates any rights of privacy or publicity or constitutes a misrepresentation;
16.5 The content of the Site originated by or on behalf of the Site publisher does not and will not knowingly infringe any Intellectual Property Rights or other proprietary rights;
16.6 The publisher and the Site do not knowingly engage in, promote or facilitate activities such as pirating, hacking or any other activities which are illegal under UK law.
16. 7 In respect of unlawful activity or content contributed to the site without the publisher's knowledge or awareness of its unlawfulness, the publisher operates a "notice and takedown" policy that complies with applicable law (currently the Electronic Commerce (EC Directive) Regulations 2002).
16.8 The Site publisher will use all reasonable endeavors not to include on the site those types of content forbidden by the IASH Code of Conduct. See the definitions of 'barred inventory' in Schedule C of the IASH Code of Conduct (www.iash.org.uk).
17. Right to Modify. We reserve the right to change any of the terms and conditions contained in this Agreement at any time and in our sole and absolute discretion. Any changes and modifications will be effective upon email notification to the email address you provided in your application; your continued use of the Service following said will constitute your acceptance of such changes and modifications. You are responsible for reviewing any applicable changes and modifications and changes and modifications may be implemented without additional notice to you. Your continued use of the Service following changes constitutes your acceptance of such changes and modifications.
18. Links and Third Party Content. We or third parties may provide links on the Service to other sites or content ("Reference Sites"). We have no control over such Reference Sites or content, and therefore make no claim or representation regarding, and expressly disclaims responsibility for, the accuracy, quality, legality, nature, availability or reliability of Reference Sites or content linked to by the Service. We provide links to you only as a convenience, and the inclusion of any link on the Site does not imply our affiliation, endorsement, or adoption of the linked site or any information therein. ACCESS AND USE OF REFERENCE SITES, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES ON REFERENCE SITES OR AVAILABLE THROUGH REFERENCE SITES, IS SOLELY AT YOUR OWN RISK. When you leave the Service, our terms and policies no longer govern. You should review applicable terms and policies, including the privacy and data gathering practices, of any Reference Sites.
19. Children's Privacy Statement. This children's privacy statement explains Service Provider's practices with respect to the online collection and use of personal information from children under the age of thirteen, and provides important information on your rights under federal law with respect to such information.
19.1 Service Provider does NOT knowingly collect personally identifiable information from children under the age of thirteen. If Service Provider becomes aware that it has inadvertently received personally-identifiable information from a user under the age of thirteen, it will delete such information from its records. If Service Provider changes its practices in the future, we will obtain prior, verifiable parental consent before collecting any personally identifiable information from children under the age of thirteen.
19.2 Because Service Provider does not collect any personally identifiable information from children under the age of thirteen, Service Provider also does NOT knowingly distribute such information to third parties.
19.3 Service Provider does NOT knowingly allow children under the age of thirteen to publicly post or otherwise distribute personally identifiable contact information.
19.4 Because Service Provider does not collect any personally identifiable information from children under the age of thirteen, it does NOT condition the use of the service by a child under thirteen.
20. Warranty Disclaimer. You agree that your use of the Site shall be at your sole risk. To the fullest extent permitted by law, we, Service Provider, our respective parents, affiliates, officers, directors, employees and agents disclaim all warranties, express or implied in connection with the Site and your use thereof. We and Service Provider are not responsible for any incorrect or inaccurate content or User Submissions Posted on or in connection with the Site, whether caused by Users of the Site or by any of the equipment or programming associated with or utilized by the Site. We are not responsible for the conduct, whether online or offline, of any User of the Site. We and Service Provider assume no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, User communications. We and Service Provider are not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of email or players on account of technical problems or traffic congestion on the Internet or at any Site or combination thereof, including injury or damage to Users or to any other person's computer related to or resulting from participating or downloading materials in connection with the Service. Under no circumstances will we or Service Provider be responsible for any loss or damage, including personal injury or death, resulting from anyone's use of the Service, any content or User Submission posted on the Service or transmitted to Users, or any interactions between Users of the Site, whether online or offline. The Service is provided "AS-IS" and we and Service Provider expressly disclaim any warranty of fitness for a particular purpose or non- infringement. We and Service Provider cannot guarantee and do not promise any specific results from use of the Site. The Site may be temporarily unavailable from time to time for maintenance or other reasons. No advice or information, whether oral or written, obtained by a User from us, Service Provider or through or from the Site shall create any warranty not expressly stated herein.
21. Limitation on Liability. In no event shall we, Service Provider, our respective parents, affiliates, officers, directors, employees and/or agents be liable to you for any direct, indirect, incidental, special, punitive or consequential damages whatsoever resulting from any: (i) errors, mistakes, or inaccuracies of content; (ii) personal injury or property damage, of any nature whatsoever, resulting from your access to and use of our Site; (iii) any unauthorized access to or use of our secure servers and/or any and all personal information and/or financial information stored therein; (iv) any interruption or cessation of transmission to or from our Site (v) any bugs, viruses, Trojan horses, or the like, which may be transmitted to or through our Site by any third party; and/or (vi) any errors or omissions in any content or for any loss or damage of any kind incurred as a result of your use of any content Posted, emailed, transmitted, or otherwise made available via the Site, whether based on warranty contract, tort, or any other legal theory and whether or not the Company is advised of the possibility of such damages. The foregoing limitation of liability shall apply to the fullest extent permitted by law in the applicable jurisdiction. You specifically acknowledge that we and Service Provider shall not be liable for User Submissions or the defamatory, offensive, or illegal conduct of any third party and that the risk of harm or damage from the foregoing rests entirely with you. The Site is controlled and offered by us from its facilities in the United States of America. We and Service Provider make no representations that the Site is appropriate or available for use in other locations. Those who access or use the Site from other jurisdictions do so of their own volition and are responsible for compliance with local law.
22. Disputes. If there is any dispute about, involving, or arising from the use of the Service, you agree that the dispute will be governed by the laws of the State of New York without regard to its conflict of law provisions. You agree to personal jurisdiction by and venue in the state and/or federal courts located in the State of New York, County of New York.
23. Notice. Except as explicitly stated otherwise, legal notices shall be served on Essence Publishing Network at the following email address: email@example.com and on you at the email address you provided to us during the application process. Notice shall be deemed given 24 hours after email is sent, unless the sending party is notified that the email address is invalid. Alternatively, we may give you legal notice by US Mail to the address provided during the application or registration process. In such case, notice shall be deemed given three days after the date of mailing.
24. First/Last. During the Term of the Agreement, you shall not negotiate with any third party concerning ad inventory representation on your Site or Blog. Provided we have made an offer to extend the Term hereof, we will have a right of last refusal for a period of three (3) months from the date of any termination or expiration of this Agreement. We will have ten (10) business days from our receipt of the terms of any bona fide third party offer you may receive for said services in which to match the economic terms of such offer.
25. Syndicated Data/Traffic Assignment. During the Term of the Agreement, you agree to assign the traffic of your URLs from your company to Essence Publishing Network in the comScore Inc. syndicated audience measurement reports. You will execute any additional documents to effectuate such assignment and place an Essence Publishing Network badge on your site. We reserve the right to aggregate syndicated data into Essence.com or the Essence Publishing Network in our sole discretion and as we deem appropriate. After any termination or expiration of this Agreement, both parties agree to execute additional documents to revert such traffic to you as needed.
26. No Agency. There is no agency, partnership, joint venture, employee-employer, or franchisor-franchisee relationship between us and any User of the Site.
27. Assignment. These terms of Service, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by us without restriction.
28. General. This Agreement shall be governed by, construed and enforced in accordance with the laws of the State of New York without regard to its conflict of laws provisions. Should any provision of this Agreement be held to be void, invalid or inoperative, the remaining provisions of this Agreement shall not be affected and shall continue in effect and the invalid provision shall be deemed modified to the least degree necessary to remedy such invalidity. The failure of either party to partially or fully exercise any right or the waiver by either party of any breach, shall not prevent a subsequent exercise of such right or be deemed a waiver of any subsequent breach of the same of any other term of this Agreement. You expressly acknowledge that in the event of a breach by you of any material term in this agreement, we will be caused irreparable injury which cannot be reasonably or adequately compensated in damages in an action at law. Accordingly, we will be entitled to injunctive relief, in addition to any other rights or remedies which we may have, to enforce the terms of this Agreement. Moreover, in the event of a breach involving an unauthorized site, we shall also be entitled to require a redirected email and/or your posting of a notice on said unauthorized site re-directing users to your Site for the duration of the Term. This Agreement sets forth the entire agreement between the parties regarding the subject matter hereof and supersedes all prior negotiations, understandings and agreements concerning such subject matter. No amendment or modification of this Agreement shall be made by you except by a writing signed by us. Any assignment or delegation of the rights or obligations hereunder, in whole or in part, or any other interest hereunder, without prior written consent, shall be void, except that either party reserves the right to assign this Agreement to any parent, subsidiary, affiliate, or successor company. Sections 11, 12, 20 - 24, and 28 shall survive any expiration or termination of this Agreement for any reason. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which, when taken together, shall constitute one and the same instrument.
BY CLICKING THE "ACCEPT" BOX, YOU AGREE THAT ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT CONSTITUTE THE LEGALLY BINDING AGREEMENT BETWEEN YOU AND US. OUR ACCEPTANCE IS EXPRESSLY CONDITIONED UPON YOUR ACCEPTANCE OF SAID TERMS AND CONDITIONS. AT ANY TIME UPON OUR REQUEST, YOU AGREE TO SIGN A NON-ELECTRONIC VERSION OF THIS AGREEMENT.
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