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Rivit Media Terms and Conditions
GENERAL TERMS OF USE

Please review the following terms of use (“Agreement”) that govern your use of the Rivit Media Network Program, and your membership in the Rivit Media Network. Rivit Media and the (“Network Member” or “You”) agree on the following terms and conditions governing Network Member’s participation in one or more Networks (as defined below).

RECITALS

Rivit Media owns and operates a network (the “Network”) comprised of Network Sites (as defined below) for the sale and placement of advertising thereon.

Network Member and Rivit Media wish to include those of Network Member’s web sites listed in application submitted to the Network (“Member’s Site(s)”) in the Network, and allow Network Ads to be served and displayed on Member’s Sites, all on the terms and conditions set forth herein.

NOW, THEREFORE, in consideration of the mutual covenants, warranties, representations and promises contained herein and intending to be legally bound hereby, the parties agree as follows:

1. Definitions

For purposes of this Agreement, the following terms will have the indicated meanings:
(a) “Ads” means all advertising sold and placed on Network Sites hereunder.
(b) “Advertisers” means advertisers that have been approved (or in accordance with the terms hereof deemed approved) by Rivit Media and/or Network Member to place advertising on Network Sites.
(c) “Confidential Information” means any data or information of the disclosing party that is of value to the disclosing party and is not generally known to third parties.
(d) “End User” means a User of any of Member’s Site(s).
(e) “Implementation Code” means the Ad Implementation Code (as defined below).
(g) “Marks” means trademarks, trade names, service marks, designs and logos.
(h) “Member Requirements” means the specifications document as in existence from time to time, either in print or electronic form, setting forth technical and other requirements for enabling Ads to be sold, trafficked, placed, tracked and reported on by Rivit Media hereunder.
(i) “Members” means, collectively, Rivit Media and its Network Members, Network Member and Other Members.
(j) “Network” means, collectively, all Network Sites as may exist from time to time.
(k) “Network Interface” means a web portal providing password protected access to Members and Advertisers to online reporting as set forth herein.
(l) “Network Sites” means those web sites that are participating in the Network.
(m) “Net Revenues” means, for Ads delivered on Member’s Site(s) pursuant to this Agreement, the aggregate insertion fees attributable to such Ads, net of advertising agency commissions & fees, charge backs, bad debt, distribution fees, brand research, refunds and other such offsets amounts collected in respect of taxes for remittance to governmental and regulatory authorities and out-of-pocket expenses payable to third parties and directly associated with value-added features of a campaign such as ad serving expenses for rich media ads.
(n) “Other Members” means persons and entities, other than Network Member, that have entered into Ad Network Member Agreements for the inclusion of one or more of such persons’ or entities’ web sites in the Network.
(o) “User” means a user of a Network Site, including Member’s Site(s).
(p) “Services” means all services provided by Rivit Media and/or its Network Members hereunder, including but not limited to the Network and all services related and ancillary to the operation of any of the foregoing.

2. Network Obligations of Rivit Media.
(a)During the Term subject to all terms and conditions set forth herein Rivit Media will operate the Network and provide the following Services with respect to the Network:
(i) Sell advertising for placement on Network Site(s) and cause such advertising to be served and displayed on Network Site(s), including Member’s Site(s), subject to approval rights of Network Member (to the extent applicable) as set forth herein.
(ii) Perform all tracking of Network Ad sales and placements on Member’s Site(s), and report thereon via Network Member’s account, accessible via the Network Interface. Each Member and Advertiser shall have access, in addition to any aggregated statistics regarding the entire Network and made accessible in Rivit Media’s discretion to all Members, only to information regarding its own Sites and/or Advertising.
(iii) Provide Network Member with source code that will cause Network Ads to be displayed on Member’s Site(s) (the “Ad Implementation Code”).
(iv) Pay Network Member its Member’s Share (as defined below) for Ads displayed on Member’s Site(s).
(b) Network Member acknowledges that the Network and all associated Services hereunder are provided on an “as is” and “as available” basis. Rivit Media makes no guarantees as to performance, including but not limited to with respect to the placement of Ads or revenues derived there from. Network Member further acknowledges and agrees that some or all of Rivit Media’s obligations hereunder will be provided to one or more third party service providers selected from time to time by Rivit Media.

3. Network Member Obligations.
a) Network Member shall be responsible for placing Rivit Media Ad Tags on approved Network Member(s) in a manner that allows verification of the URL of the web page and in compliance with these Terms and Conditions.
i) Network Member will make the Inventory available to Rivit Media in Standard IAB Units as described in these Terms and Conditions or as may be updated by Rivit Media from time to time. Rivit Media Advertising Guidelines are available to Network Member via the Publisher Interface.
ii) Network Member will have the right to set one or more default "permissions" for the acceptance or rejection of Ads.
b) Network Member may place any Standard IAB unit on Network Member(s) via Ad Tags that are made available by Rivit Media.
i) Any Inventory made available to Rivit Media can be offered to advertisers at Rivit Media’s discretion.
iv) Publisher may place no more than one (1) leaderboard (728x90) ad above the fold. For purposes of clarification, this means that if a Rivit Media leaderboard ad is placed on a page, no other leaderboard or banner ad may appear above the fold on that same page. Publisher may place no more than one (1) skyscraper (160x600) and one (1) rectangle (300x250) ad unit on any given page.
c) Ad Tags are to be placed on approved Network Sites only. Network Member is prohibited from modifying, or causing to be modified, Rivit Media Ad Tags.
i) Placing Ad Tags on non-approved Network Sites is specifically prohibited by these Terms and Conditions and will result in immediate removal of the Network Member from Rivit Media , and non-payment of any and all amounts due Network Member.
ii)Network Member understands that the placement of Ad Tags on non-approved Network Sites may result in monetary and reputational harm to Rivit Media. In the event that Ad Tags are placed on any unapproved site, Rivit Media shall be entitled to seek immediate injunctive relief, and Network Member will be liable to Rivit Media for compensatory damages related to any lost revenue, loss of brand value or any other consequence resulting from such unauthorized use of Ad Tags.
(d)During the term, Network Member shall be asked to display on Member’s Site(s) such clickable Network attribution as is provided by Rivit Media from time to time, which shall link to a web page hosted by Rivit Media promoting or otherwise providing information about the Network.
4.Revenue Share; Pricing, Billing & Payment

Rivit Media will sell advertising campaigns on behalf of Network Member, manage all contractual and technical issues with the advertising agency and execute the insertion order contract and provide the HTML ad tags needed for the advertising to appear on the pages of Network Member’s web site(s).

(a) The advertising will be tracked either by Rivit Media or by the advertising agencies third-party ad server when required by the terms of the insertion order contract with the advertiser. In cases where the advertising insertion order requires, tracking, invoicing and payments will be determined by the reported data produced by the 3rd party ad serving technology. Rivit Media will use commercially reasonable efforts to ensure that ad serving discrepancies are kept at or below industry norms when 3rd party ad servers are used for tracking and payments and to ensure that the ad tags necessary to serve the advertisement sold by Rivit Media do not interfere with the loading time of the ad pages. In the event that Network Member reasonably determines that any delay in loading of the Network Member site pages is due to interference from the ad tags provided by Rivit Media, Network Member reserves the right to remove the Rivit Media -supplied ad tags temporarily, until such time as Network Member reasonably determines that any technical issues affecting ad-delivery performance are adequately resolved.,

(b) After every month that advertising runs on Network Member sites, Rivit Media will prepare and send an invoice to the advertising agency or advertiser. Rivit Media shall remit to Network Member Fifty-five percent (55%) of Net Advertising Revenue generated from the sale of Advertisements. “Net Advertising Revenue” shall be defined as gross revenues, less agency fees, charge backs, bad debt, distribution fees, brand research, promotional impressions, refunds and other such offsets. Publisher agrees to hold Rivit Media liable for payments solely to the extent proceeds have cleared from the Advertisers to Rivit Media for advertising placed in accordance with this Agreement. For sums owing but not cleared to Rivit Media, Publisher agrees to hold the Advertiser solely liable. Rivit Media shall use best efforts to collect from advertisers all monies due.

(c) Payments will be made within 60 days following the month in which the applicable Net Revenues are received; provided, however, if the amount payable to Network Member is less than two hundred dollars ($200) the balance will carry forward until such time as Network Member has a balance equal to or greater than such amount. Rivit Media will pay any balance remaining upon expiration or termination within (90) days; provided, however, that balances under $5.00 for an inactive account will not be made and are permanently forfeited. If Rivit Media has not received payment from Adveriser by the date that is one hundred eighty (180) days following the date of the invoice, Rivit Media shall, at Publisher’s option, assign to Publisher the right to collect such debt and provide Publisher with information relating to the debt, including the name of the Advertiser, the Advertiser’s contact information and the advertising campaign at issue.

(d) Revenue will be calculated based on traffic audits from Rivit Media’s third party service provider’s central server. For purposes of fair and accurate reporting, Rivit Media traffic audits will be the sole source of audience traffic measurement for billing purposes. Some Ads may be shown by a third party server. In that case, for purposes of fair and accurate reporting or advertiser requirements, Rivit Media may need to rely on the third party server's traffic audits as the sole source of audience traffic measurement for billing purposes.

(e) Network Member shall be responsible for paying any applicable charges under this Agreement, including any applicable taxes or charges imposed by any government entity, including but not limited to personal income tax, social security and/or welfare obligations, sales tax, Value Added Tax (VAT), and use tax if applicable. Network Member also agrees that neither Rivit Media nor Service Provider is not obligated to determine whether sales or use taxes apply on any Advertising sales and is not responsible to collect, report, or remit any sales or use taxes arising from any such transaction.

(f) Network Member may access, via a password-protected area of the Network Site, information relating to Advertising sold and served on Member’s Site(s).



6.License Grants; Intellectual Property.

(a) During the Term, Rivit Media grants to Network Member a limited, nonexclusive and non-sublicensable license to use the Implementation Code solely for the purpose of implementing the Services on Member’s Site(s) solely in accordance with the terms and conditions of this Agreement. No rights are granted herein with respect to any web sites other than Member’s Site(s) as listed on Schedule A. Additional sites owned and operated by Network Member may be added solely upon mutual agreement of the parties.

(b) During the Term, Rivit Media grants to Network Member a limited, revocable, non-exclusive, royalty free right to use, reproduce, publish, perform and display such Marks as may be provided by Rivit Media from time to time solely to comply with the attribution obligations provided hereunder. Network Member shall comply with all trademark usage guidelines and quality control standards provided by Rivit Media from time to time, and shall immediately cease or modify any use upon being notified that such use is non-compliant. All use of the Rivit Media Marks, and all goodwill associated therewith, shall inure solely and exclusively to the benefit of Rivit Media.

(c) Network Member hereby grants Rivit Media (including its service providers) a non-exclusive, royalty-free, worldwide license to reproduce, perform, display and distribute via all media such content as is provided by Network Member to the Service (“Network Member Content”) and portions thereof for the purpose of promoting the Network and the sale of Ads on Member’s Site(s). Network Member agrees that Rivit Media (including its service providers) shall have the right to include Network Member’s Marks for purposes of identifying Network Member and Member’s Site(s) as a Member in advertising, promotional and marketing materials in all media.

(d) All data collected by Rivit Media and/or Service Provider in connection with Network Member’s participation in the Network and receipt of Services hereunder shall be the property of Rivit Media. All materials (including software, equipment and data) and content provided by any person or entity, including the parties hereto, and including but not limited to all intellectual property rights therein, shall remain the sole property of such person or entity.

7.Term; Termination.

(a) The term of this Agreement shall commence on the Effective Date and continue for One year (the “Initial Term”), unless earlier terminated as provided herein. Following the Initial Term, this Agreement shall renew automatically for additional periods of the same duration as the Initial Term upon the same terms and conditions (each, a “Renewal Term”), unless and until either party provides written notice of its intent not to renew at least thirty (30) days prior to the expiration of the then-current term. The Initial Term and any Renewal Term(s) are hereinafter collectively referred to as the “Term.”

(b) This Agreement is subject to early termination as follows:

(i) If either party breaches this Agreement, or becomes the subject of bankruptcy, insolvency, liquidation or other proceedings, the other party may terminate this Agreement immediately upon written notice to the breaching party. Rivit Media further reserves the right, in lieu of termination (and or pending investigation and a decision to terminate), to suspend marketing and placing Ads on Member’s Sites.

(ii) Rivit Media may terminate this Agreement at any time by thirty (30) days’ prior written notice to Network Member.

(c) Upon the termination of this Agreement for any reason all license rights granted herein shall terminate immediately, Network Member shall immediately cease use of, and return to Rivit Media or delete and certify as to the deletion of, the Rivit Media Materials, including the Rivit Media Marks, the code provided to Network Member for implementation hereunder and all Rivit Media Confidential Information. Sections 6(d), and 7 through 11 shall survive any termination or expiration of this Agreement for any reason.

8.Representations, Warranties and Covenants.

(a)Each party represents and warrants that

(i) the Agreement has been duly authorized, executed and delivered and constitutes a valid and binding obligation of such party, enforceable in accordance with its terms;

(ii) such party has full power and authority to enter into the Agreement and perform its obligations hereunder; and

(iii) the making of and performance under the Agreement by such party does not violate any agreement or obligation existing between such party and any other person, firm or corporation; and (iii) that the performance by such party of its obligations hereunder, shall be in compliance with all applicable laws, rules and regulations.

(b) Network Member further represents, warrants and covenants that

(i) Network Member owns, operates and has sole editorial and creative control of Member’s Site(s); and (ii) Member’s Site(s) do not and will not contain any content which infringes, misappropriates or otherwise violates, and Network Member will not in connection with the operation of Member’s Site(s) or this Agreement infringe, misappropriate or otherwise violate, any applicable law, rule, regulation (including but not limited to those regarding internet privacy and unsolicited and/or commercial email) or third party right including but not limited to trademarks, patents, copyrights, rights of publicity, rights of privacy, moral rights, music performance or other music-related rights, or any other third-party right.

(c) THE SERVICES, NETWORK AND ALL MATERIALS PROVIDED HEREUNDER ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY. Rivit Media, ITS NETWORK MEMBERS AND SERVICES PROVIDERS DO NOT WARRANT THAT THE SERVICES, NETWORK OR MATERIALS PROVIDED HEREUNDER WILL MEET NETWORK MEMBER’S REQUIREMENTS OR THAT THEIR OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, SUBJECT TO THE EXPRESS REPRESENATIONS MADE HEREIN, Rivit Media DISCLAIMS ON BEHALF OF ITSELF, ITS AFFILAITES AND ITS SERVICE PROVIDERS, ALL REPRESENTATIONS AND WARRANTIES, EXPRESS AND IMPLIED, CONCERNING OR RELATED TO THE SERVICES, THE NETWORK PRODUCT AND ANY OTHER MATERIALS PROVIDED UNDER THIS AGREEMENT THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT.

9.Indemnification.

Each party (the “Indemnitor”) will indemnify, defend and hold harmless the other party, and the other party’s Network Members, and each of their respective officers, directors, employees and agents (and Network Member will also indemnify, defend and hold harmless third parties engaged by Rivit Media to provide any of the Services) (collectively, the “Indemnitees) from and against any claims, damages, losses and expenses (including reasonable attorneys’ fees) arising from or related to any claim by a third party based upon or related to: (a) the Indemnitor’s breach of any representation or warranty made by it under this Agreement; or (b) in the case of Network Member, Member’s Site(s) and/or any violation of Section 3(c), 3(f) or 3(g) hereunder or of any provision set forth on Attachment 1.

10.Liability.

(a) EXCEPT FOR

(I) THE PARTIES’ INDEMNIFICATION OBLIGATIONS UNDER SECTION 9,

(II) BREACHES OF ANY INTELLECTUAL PROPERTY RIGHTS AND/OR PROPRIETARY INTERESTS RELATING TO THE NETWORK OR SERVICES, AND (III) BREACHES OF CONFIDENTIALITY UNDER SECTION 11(i), (A) NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST DATA, LOST PROFITS, LOST REVENUE OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY WAS OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND (B) IN NO EVENT SHALL EITHER PARTY’S TOTAL AGGREGATE LIABILITY FOR ALL CLAIMS ARISING OUT OF THE AGREEMENT EXCEED THE NET AMOUNT Rivit Media HAS ACTUALLY RECEIVED AND RECOGNIZED AS REVENUE DURING THE PRECEDING SIX (6) MONTHS FOR THE SERVICES TO WHICH THE CLAIM RELATES. The parties agree that (i) the mutual agreements made in this Section reflect a reasonable allocation or risk, and (ii) that each party would not enter into the Agreement without these limitations on liability.

(b)Rivit Media and its Network Members and services providers are not responsible for the content of materials served to Member’s Site(s) under the Services (including Ads) Rivit Media, its Network Members and service providers do not review such materials before they are displayed, and do not verify, endorse, or otherwise take responsibility for the contents of any such materials. Rivit Media reserves the right to remove from its servers Network Member Content which it determines to be in violation of this Agreement.

11.Miscellaneous.

(a) This Agreement, together with its schedules and attachments, supersedes all prior discussions and agreements between the parties, constitutes the entire agreement between the parties relating to the subject matter of this Agreement.

(b) This Agreement shall be governed by the laws of the State of California, United States of America. The exclusive jurisdiction for any action relating to this Agreement shall be a federal or state court in San Francisco, CA and the parties consent to such jurisdiction and waive and agree not to plead or claim that any such action or proceeding has been brought in an inconvenient forum.

(c) The waiver of any right or election of any remedy in one instance shall not affect any rights or remedies in another instance. A waiver shall be effective only if made in writing and signed by an authorized representative of the party making such waiver.

(d) All notices or communications between the parties to this Agreement shall be addressed to the applicable address set forth on the signature page of this Agreement and sent by fax, certified or registered mail, personal delivery or overnight courier. Such notices shall be deemed given on the date of receipt (or refusal) of delivery of said notice.

(e) Neither party may transfer or assign its rights, duties or obligations under this Agreement to any person or entity, in whole or in party, without the prior written consent of the other party, except to an entity that acquires all or substantially all of the assets of the Acquiring Party. Any such prohibited assignment shall be void.

(f) This Agreement may not be amended except by an instrument in writing signed by both parties.

(g) Rivit Media and Network Member are independent contractors and neither Rivit Media nor Network Member is an agent or representative of the other.

(h) Neither party shall be liable for delays in performance hereunder due to causes beyond its reasonable control, including, but not limited to, acts of God, strikes, inability to obtain labor or materials on time, any delay, failure, interruption or corruption of data or other transmission over any local exchange, interexchange or Internet backbone carrier lines or through routers, switches and other devices owned, maintained and serviced by any third party carrier or utility or Internet service provider beyond the control or jurisdiction of the party.

(i) “Confidential Information” means

(i) the specific terms of this Agreement;

(ii) all reporting information (including revenues paid to Network Member and all information relating thereto, including but not limitation, Ad rates and Member’s Share);

(iii) any other information provided by one party to the other under this Agreement (other materials intended for display to Advertisers, web site end users and other third parties. Except with the prior written consent of the disclosing party, neither party shall (x) use the Confidential Information of the other party other than to fulfill the purpose for which it was provided hereunder, (y) disclose any Confidential Information other than to its employees and service providers who have a need to know in connection with the operation of the Network and provision of the Services and any disclosure to contractors may only be to service providers who have signed a non-disclosure agreement to protect the confidential information of third parties; or (z) make copies or allow others to make copies of such Confidential Information except as is reasonably necessary for internal business purposes. “Confidential Information” shall not include information (A) previously know to the recipient without obligation of confidence, (B) independently developed by or for the recipient without use of or access to the other party’s Confidential Information, (C) acquired by the recipient from a third party which is not under an obligation of confidence with respect to such information, or (D) which is or becomes publicly available through no breach of this Agreement.