This Agreement ("Agreement") is effective as of _____ 20__, and is made by Darcher LLC, a New York limited liability company , ("Darcher LLC") and __________________________, a ________, (" Publisher"). For purposes of this Agreement, Publisher's authorized representative will be ___________________. This Agreement governs advertising delivered through Publisher's Web site(s) or platform(s) (the "Publisher's Site(s)"). Darcher LLC and Publisher agree as follows:
A. Darcher LLC plans advertising campaigns and buys advertising media on behalf of its clients.
B. Publisher sells certain advertising products and services that it is willing to make available in support of Darcher LLC's clients' advertising campaigns.
C. Publisher desires to sell and Darcher LLC desires to purchase certain of Publisher's products and services in accordance with the terms set forth in this Agreement.
NOW THEREFORE, in consideration of the mutual covenants set forth herein, the parties agree as follows:
"Advertising Material" means the text, graphics, logos, designs, trademarks and copyrights for any type of advertising including, but not limited to, buttons, banners, text-links, pop-ups, and pop-unders is created by an advertiser.
"Advertiser(s)" means one or more customers of Darcher LLC which create the Advertising Material, and authorizes Darcher LLC as its agent to include it on the Publisher's Site(s).
"Approved Monthly Delivery" means the amount of inventory to be delivered for each calendar month of the campaign as stated in the Order.
"Approved Monthly Spend" means the amount of money that Darcher LLC sets as as spending limit, and for which it will be liable for any calendar month if specified under a particular Order.
"Darcher LLC HTML Insertion Code" means the code in which Publishers are permitted to use Advertising Material delivered to the Publisher's Site(s).
"Darcher LLC Network" means means the advertising network owned and operated by Darcher LLC.
"Impressions" means the number of times Advertising Material is served to a person visiting the Publisher's Site(s).
"Order" means an insertion order that is submitted by Darcher LLC and is accepted by Publisher, or an online order via the Internet, which is a proposal that is submitted by Publisher in response to a request for proposal and is accepted by Darcher LLC
" Publisher Earnings" and "Darcher LLC Earnings". "Publisher Earnings" means the total revenue Darcher LLC generates by running advertising campaigns for Publisher using the Advertising Materials less "Darcher LLC Earnings",and subject to the Total Spend that may be established under an Order. "Darcher LLC Earnings" are calculated at the campaign level at the sole and absolute discretion of Darcher LLC. Darcher LLC evaluates each advertising campaign and makes relative earnings calculations based upon a number of factors including the type of campaign metric (e.g., CPM, CPC, CPA), the performance of the campaign, technology costs, and other factors relating to the campaign, the performance of Publisher's site(s) and Darcher LLC's Network as a whole.
"Total Spend" means the maximum amount of money for which Darcher LLC will be liable under the Order.
"Unique Click" means the number of times, as recorded by Darcher LLC's server, a person visiting Publisher's Site(s), as identified by cookie or IP address, clicks on Advertising Material, provided however, that a click on Advertising Material by a particular visitor shall only be counted as a Unique Click once every 24-hour period.
Section 1. Order, Delivery, and Adjustments.
1.1. Relationship. From time to time, the parties may negotiate the terms of Orders under which Publisher will deliver Advertising Material for advertising campaigns to its Site(s) for the benefit of each Advertiser.
1.2. Orders. Each Order shall specify at the placement level: (a) the types of inventory to be delivered (e.g., impressions, clicks, or other desired actions); (b) the prices for such inventory; and if specified by Darcher LLC (c) the Total Spend. Using such factors, the Order shall set forth the Approved Monthly Delivery and the Approved Monthly Spend. Publisher's delivery of the first Advertising Material as specified in an Order shall be deemed Publisher's acceptance of the Order's specifications, terms and conditions, including any payment rates.
1.3. Publisher's Delivery. Publisher shall ensure reasonably even delivery of Advertising Material based on the monthly contracted amount as stated in the Order. Publisher's over-delivery of Advertising Material shall not relieve Publisher of such obligation, nor obligate Darcher LLC to pay more than the total monthly contracted amount as stated in the Order. In the case of under delivery, Darcher LLC shall have the right to decrease the Approved Monthly Spend for the current month, as well as for all remaining calendar months in the campaign, to an amount that would result from Publisher's current actual rate of Delivery. The decrease to the Approved Monthly Spend(s), and a corresponding decrease to the Total Spend, shall be effective as of the date of the request by Darcher LLC. In any event, Publisher is obligated to deliver evenly based on the most recent Order.
1.4. Adjustments to Orders. The parties may make adjustment to Orders, via revised insertion orders, as that term is generally understood in the industry, when signed by both parties or when accepted via e-mail. These adjustments may include changes in the price at the placement level, changes in the inventory desired at the placement level, or changes in the contracted amount at the placement level.
Section 2. Invoicing and Payment.
2.1. Payment. Within 45 days after the last day of each calendar month for a specific campaign, Darcher LLC will pay Publisher its Publisher Earnings for Advertising Material actually delivered by Publisher to each of Publisher's Site(s) approved by Darcher LLC during the applicable calendar month and for which Darcher LLC has been paid by the Advertiser in accordance with Section 3.2 herein, subject to the applicable Order's specifications, terms and conditions. Publisher acknowledges that Darcher LLC bills its Advertisers, and pays its Publishers, based on actual delivery. Additionally there is a minimum threshold on publisher payments in the amount of $100 dollars and any publisher below this threshold will receive payment when the cumulative reaches the minimum.
2.2. Liability for Publisher's Revenue. Publisher understands and agrees that Darcher LLC acts solely as an agent for the Advertisers; and that Darcher LLC shall only be liable to Publisher for Publishers Revenue based on payments from Advertisers that it has received without restrictions that constitute immediately-available funds to Darcher LLC (hereinafter called "Cleared Funds"). Publisher agrees that (i) Darcher LLC shall have no liability or obligation to Publisher for payments due but unpaid from Advertisers, or that are not Cleared Funds; (ii) Publisher will only assert any claims therefore directly against the Advertisers; and(iii) Publisher shall hold Darcher LLC harmless and indemnify it from any claims or liability related to such unpaid amounts or or amounts that do not constitute Cleared Funds. Darcher LLC agrees to make every reasonable effort to bill, collect and clear payment from the Advertisers on a timely basis. Darcher LLC, reserves the absolute right not to make any payments if the Publisher violates any of the terms and conditions set forth herein. Darcher LLC shall not pay for clicks generated from Darcher LLC house banners. Clicks from Darcher LLC house banners will result in no revenue for Publisher.
2.3. Invoicing and Payments.
2.4. Taxes. Darcher LLC assumes no responsibility for paying income taxes on behalf of Publisher. By participating in the Darcher LLC Network, Publisher assumes complete and sole responsibility for any taxes owed as a consequence thereof. Darcher LLC shall provide Publisher with appropriate tax information, including earnings on Form 1099. Publisher residing in the United States agree to provide their Social Security number or Federal Employee Identification Number to Darcher LLC for tax reporting purposes. In no event will payments be made on accounts that have not provided proper tax identification information. Such information will be used for no purpose other than for tax reporting purposes. International Publishers may be asked to complete appropriate forms for tax purposes.
Section 3. Advertising Materials.
3.1 Linking and Trafficking Guidelines. Prior to displaying the first Advertising Materials specified in an Order, Darcher LLC shall provide Publisher with linking instructions, URL, banner, and alternative text for the Advertising Material. Darcher LLC may make changes to any such Advertising Material upon 48 hours notice, via e-mail, telephone or fax. Publisher shall process such changes so as to deliver the Advertising Material correctly, clearly, and at the times and frequencies specified by Darcher LLC. In the event Publisher fails to run the Advertising Material properly, Darcher LLC may require appropriate delivery of additional Advertising Material and/or a proportional or total reduction in amounts payable.
3.2. Delivery of Advertising Material. Darcher LLC shall provide all Advertising Material to Publisher via servers at Darcher LLC. Darcher LLC shall issue Orders to Publisher, and shall provide Publisher with appropriate linking instructions to the Darcher LLC servers. Publisher shall obtain the Advertising Materials from the Darcher LLC services at the time of delivery the Advertising Materials for a specific advertisement. If Publisher is unable to obtain the Advertising Materials from the Darcher LLC servers on a consistent basis, Publisher shall cease delivering Advertising Material and shall contact Darcher LLC promptly, but in no event more than one business day after the problem first occurred. Publisher shall not resume the display of Advertising Materials until Darcher LLC directs Publisher to do so. In the event of a persistent outage of the Darcher LLC servers, Darcher LLC may, at its option, provide Publisher with the Advertising Materials directly, and may direct Publisher to serve the Advertising Materials from its servers.
3.3. Darcher LLC HTML Insertion Code. Publisher shall place the Darcher LLC HTML Insertion Code on all appropriate pages within its Site(s). Publisher shall not alter, sell or disclose the Darcher LLC HTML Insertion Code in any way without Darcher LLC's prior written consent. The Darcher LLC HTML Insertion Code for Advertising Material may not be used on a web page other than one located at an approved Site and may not be distributed or submitted to any newsgroup, e-mail distribution list, chat room, guest books, or other location which would result in the execution of such code without a bona fide visit to an approved Web Site.
3.4. Modification Of Advertising Material. Advertising Material must not be modified from original format without consent from Darcher LLC. Publisher agrees to use the Advertising Material provided for displaying not more than one ad unit per page view. Advertising Material cannot be placed in email messages. Publisher can not alter, copy, modify, take, sell, reuse, or divulge any computer code for the Advertising Materials, except as is necessary to partake in the Darcher LLC Network, provided, however, with the prior approval of Darcher LLC, the Publisher may, in certain instances, modify the Advertising Material computer code for purposes of inserting certain pre-approved language above or below the Advertising Material. Requests for language approval should be sent to . If Publisher violates this provision, Darcher LLC, may, at its option, either reduce or eliminate any and all payments due hereunder, and/or terminate this Agreement as provided herein.
3.5. Recording of Service Counts. Darcher LLC shall have the sole responsibility for calculation of statistics, including Impressions and click-through numbers. Greenwich Mean Time (GMT) shall be the time period for traffic and tracking purposes. Statistics shall be available to Publisher online at http://www.DarcherMedia.com. Publisher understands that Darcher LLC's online statistics may not be 100% accurate and that Darcher LLC may make adjustments to Publisher's online statistics at the end of each calendar month to account for, among other things, specific contractual provisions (e.g., bonuses) and statistical errors. In the event that coding on Publisher's Site(s) generates substantial number of erroneous impression due to a technical problem such as server malfunction, coding alteration or a mistake in entering code, Publisher agrees to respond to the e-mail generated by Darcher LLC technical support within 48 hours. If Publisher does not respond to this alert, Darcher LLC reserves the right to (a) withhold payment on all Impressions and clicks delivered after the 48-hour period has expired, or (b) not show any revenue-producing Advertising Material on the relevant Site(s).
3.6. Fraudulent Impressions. Any method to artificially and/or fraudulently inflate the volume of impressions or clicks is strictly forbidden. Counts of impressions or clicks will be decided solely on the basis of reports generated by Darcher LLC's Advertising Network. These prohibited methods include but are not limited to: framing an ad-banner's click-through destination, auto-spawning of browsers, blind text links, running 'spiders' against the Publisher's own website, automatic redirecting of users, pop-up windows or any other technique of generating automatic or fraudulent (as determined by Darcher LLC, acting reasonably, or based on industry practices) click-throughs and/or impressions. Advertising Material may not be placed on a page which reloads automatically. . Publisher may not require users to click on Advertising Material prior to entering a Web Site or any area therein or provide incentives of any nature to encourage or require users to click on Advertising Material. Publisher's clicks-throughs of any link other than Darcher LLC's Advertising Material, or use of any other means of artificially enhancing click results shall be a material breach of this Agreement, and upon such occurrence, Darcher LLC may terminate this Agreement effective upon delivery of notice. Such termination is at the sole discretion of Darcher LLC and is not in lieu of any other remedy available at law or equity. Darcher LLC's ad server will be the official counter for determining the number of Advertising Material delivered under an applicable Order, and amounts payable under this Agreement.
3.7. Ad Placement. 728x90 leader board, 120x600 skyscraper, and 160x600 wide skyscraper creative must be placed above the fold on an 800x600 pixel screen (within 500 pixels of the top of the webpage) so they are viewable without scrolling; 300x250 medium rectangles must be placed above the fold on an 800x600 pixel screen (within 500 pixels of the top of the webpage).
Section 4. Eligible Site(s). Darcher LLC reserves the absolute right to refuse in its sole discretion to affiliate with any Publisher. The following are examples of sites that are not eligible for participation:
At any time Darcher LLC may investigate any Site for violation of this Agreement. Darcher LLC regularly performs compliance audits. If Darcher LLC determines that Publisher's Site(s) includes any undesirable content, Darcher LLC may discontinue the Ad campaign upon notice, and Publisher shall immediately cease delivering Advertising Material on such Site(s) . In no event, will Darcher LLC or its Advertisers be obligated to pay for Advertising Material delivered through Sites containing undesirable content after Publisher's receipt of such notice from Darcher LLC.
Section 5. Minimum Traffic. Darcher LLC reserves the right to terminate this Agreement immediately should, according to Darcher LLC's statistics, either (a) the number of Impressions delivered by Publisher total less than 30,000 unique users per month, or (b) the unique click-through rate on Advertising Material delivered to Publisher's Site(s) equals 80% less than the average click-through rate of said Advertising Material for all web sites in the Darcher LLC Network for any 7 consecutive calendar day period; or (c) the amount of United States-based traffic to Publisher's Web Site (determined by the IP address of visitors to Publisher's Web Site) equals less than 50% of the total traffic to such site (as determined by the total number of Impressions delivered by Publisher) (the "Minimum Requirements"); provided, however, should Darcher LLC exercise it's rights pursuant to this Section 5, Publisher shall be entitled to receive payments under Section 3 herein generated up to and including the date of termination, as long as payments equal at least $50 at the date of termination, and amounts under $50 shall be forfeited. When calculating the amount due to Publisher under the previous sentence, any payments for a particular month of less than $1.00 will be forfeited. Notwithstanding the foregoing, prior to making any payment to Publisher, Darcher LLC reserves the right to (i) demand make-goods for any short-fall of the Minimum Requirements, which make-goods shall equal the number of Impressions necessary to achieve United States-based traffic of at least 50% relative to the total traffic to Publisher's Web Site; OR (ii) reduce payment to Publisher accordingly.
Section 6. Representations and Warranties. Publisher represents and warrants to Darcher LLC that:
Section 7. Campaign Discontinuance. Darcher LLC has the option, in its sole discretion, to discontinue any Ad campaign or obligation under an Order, with or without cause, by giving a notice via e-mail, telephone or fax, to the Publisher's authorized representative that will be effective immediately on the date when it is sent. If Darcher LLC elects to discontinue any Ad campaign or obligation under any Order, all unfulfilled contractual commitments subsequent to notice shall become null and void, and Darcher LLC shall pay Publisher only for Advertising Material delivered up to the date of the notice period so long as such Advertising Material are delivered evenly, or at a rate consistent with the rate anticipated in the Order. Darcher LLC shall have no obligation to pay for Advertising Material delivered by Publisher prior to the date of the notice that exceeds the number specified in the original order or that vary significantly from the rate of Delivery prior to notice of discontinuance.
Section 8. Term and Termination.,.
Section 9. License and Intellectual Property. Darcher LLC shall use the trade names or trademarks of the other party or Advertisers without prior written approval from the party owning such name or mark.
Section 10. Privacy
10.2. Privacy Representations and Warranties. Each party warrants to the other that, during the term of this Agreement, it shall comply with all applicable laws and regulations (including but not limited to laws governing privacy, and data protection). Publiser warrants that it shall comply with the Self-Regulatory Principles Governing Online Preference Marketing promulgated by the Network Advertising Initiative (available at http://www.networkadvertising.org/aboutnai_principles.asp).
Section 11. Confidentiality. Darcher LLC shall disclose to Publisher the names of Darcher LLC's Advertisers ("Client List"); and Publisher agrees that the Client List is sensitive and highly confidential information that it shall use solely for its performance under this Agreement, and that it and its officers, employees, directors, members, agents and representatives shall not disclose it to any other party for any purpose without the prior written consent of Darcher LLC. Publisher shall ensure that each of the persons or parties in the previous sentence have signed confidentiality agreements with Publisher consistent with the aforesaid sentence before it may disclose the Client List to them. Notwithstanding the previous two sentences, however, Publisher may disclose to any third party the existence of its relationship with Darcher LLC; but it cannot disclose the Client List or the existence or nature of Darcher LLC's relationship with any Advertisers included in the Client List. Publisher's obligations under this paragraph shall continue indefinitely following the date of termination of this Agreement.
Section 12. Indemnification. The Publisher agrees to indemnify and hold Darcher LLC and its affiliates, employees, agents and representatives harmless from and against any and all claims, demands, liabilities, expenses, losses, damages and attorney fees arising from any and all claims and lawsuits for libel, slander, copyright, and trademark violation as well as all other claims resulting from (i) the participation of the Publisher in the Darcher LLC Network, (ii) operation of the Publisher's Site(s) submitted to Darcher LLC for participation in the Darcher LLC Network or (iii) otherwise arising from Publisher's relationship with Darcher LLC. The Publisher also agrees to indemnify Darcher LLC for any legal fees incurred by Darcher LLC, acting reasonably, in investigating or enforcing its rights under this agreement.
Section 13. Disclaimers, Exclusions And Limitations.
Section 14. Non-Circumvention. During the Term of this Agreement, and any renewal thereof, and for one (1) year after its termination for any reason, Publisher agrees that it will not do business directly or indirectly with any Advertiser specified in an Order, or directly or indirectly solicit or induce such Advertiser to do business directly with the Publisher. Publisher understands and agrees that this prohibition is a key consideration and inducement for Darcher LLC to enter into this Agreement with Publisher, and to provide the services hereunder.
Section 15. General.
15.1. Inconsistency with Order. In the event of any inconsistency between an Order and this Agreement, the terms of the Order shall prevail.
15.2. Governing Law, Jurisdiction and Venue. This Agreement and all Orders shall be governed by the laws of the State of New York, without regard for the conflict of law principles thereof. The Federal and State Courts located in Suffolk County, NY shall be the sole venue to hear controversies arising from or related to this Agreement, and each party consents to the personal jurisdiction of those courts.
15.3. Assignment. Any assignment, transfer or delegation by Publisher of its rights or duties hereunder will be governed by this Agreement, subject to the parties' termination rights hereunder.
15.4. No Prior Agreements. This Agreement, together with all fully-executed Addenda, attachments and exhibits attached hereto, and all proper Orders, contains every obligation and understanding between the parties regarding the subject matter hereof, and merges and supersedes all prior and contemporaneous agreements and understandings, if any, regarding the subject matter hereof.
15.5. Severability, Rights Cumulative. If any provision herein is held to be unenforceable, the remaining provisions shall remain in full force and effect. All rights and remedies hereunder are cumulative.
The Parties represent that they fully acknowledge and agree to the terms of this Agreement, and that the following individuals are authorized to sign on their behalf.