1. Grant of Rights:
- RonSearch grants Publisher the right during the Term (as defined below) to place the Widget on the Websites (each, a “Placement”) and to display Recommendations to Visitors. Publisher agrees that the Widget will be placed on all Website article pages in the location and in conjunction with elements approved by RonSearch. Publisher understands and agrees that it will not launch the Widget unless the location, display and user interface of the Widget have been approved by RonSearch in writing. Publisher further agrees that it will notify RonSearch in writing if it intends to place the Widget: (i) in a location other than the one approved by RonSearch (ii) on any article page that uses pagination, fly-outs, interstitials, multimedia module or that refreshes the Widget with each page view; or (iii) a non-article page (e.g. a gallery or slideshow page), so that RonSearch can approve each such location and provide Publisher with specific code for all such other locations or pages.
- Publisher grants RonSearch the right during the Term (i) to interact with the Widget on the Websites for the purposes of developing and serving Recommendations to Visitors, and (ii) to use Publisher’s name and logo when referring to RonSearch's customer in RonSearch marketing materials. Publisher further agrees (i) not to take any action that might impede RonSearch’s provision of the Service (ii) to maintain each Placement throughout the Term and (iii) to comply with any relevant law or regulation (e.g. from the Advertising Standards Authority) with respect to that Placement by including an attribution to RonSearch in a form that has either been provided by RonSearch or approved by RonSearch (the “RonSearch Attribution”) (for clarity, RonSearch shall have the right to immediately remove the Widget from Publisher’s Website(s) if Publisher fails to include the RonSearch Attribution). In addition, Publisher agrees that in order to facilitate maintenance and optimisation of the Service, RonSearch may at any time during the Term conduct tests on how Visitors interact with the Website, Publisher Material and RonSearch Sponsored Content. Publisher acknowledges that in the event it chooses to have RonSearch recommend Publisher Material, the Widget will need to rely upon Publisher’s embedded video player to play Publisher Material that shall be streamed directly from Publisher’s servers in response to Visitors’ selections. Accordingly, in such event, the parties shall cooperate in good faith to ensure proper interoperability between the Widget and Publisher’s video player. Without limiting the foregoing, Publisher shall: (i) permit RonSearch to access Publisher’s Material for indexing and other purposes related to provision of the Service, by providing RonSearch with a Media RSS feed or, with Publisher’s approval, credentials that shall permit RonSearch to access Publisher’s Material management system, and (ii) place an action script code snippet provided by RonSearch in Publisher’s video player that will allow RonSearch to track video views and to generate playlists on the Widget.
2. Acceptable Use Policy
Publisher agrees that it will not, either by itself or by authorising or encouraging others to do so, directly or indirectly: (a) use, post or promote the Widget or any Recommendations in association with any material or content which is, or which may be reasonably considered to be illegal, unlawful or infringing under any applicable laws, pornographic, obscene, promotional of illicit drugs and drug paraphernalia, gambling-related, weapon or ammunition-related, violent, libellous, defamatory, indecent, seditious, offensive, invasive to privacy, abusive, threatening, harmful, vulgar, possibly capable of inciting racial hatred, discriminatory (racially, ethnically or otherwise), in breach of confidence or any other right of any third party, or lacking in necessary authorisations, approvals, consents or licenses; (b) engage in any action or practice that disparages or devalues RonSearch, the Widget, the RonSearch Sponsored Content, or the reliability, reputation or goodwill of any of them; (c) modify, change, edit, amend, truncate, alter, bypass or reorder any aspect of the Widget or Recommendations; (d) generate clicks on Recommendations, or generate Recommendation Pageviews, that RonSearch believes, in its sole discretion, is through any automated, deceptive, fraudulent or other means that is designed to generate clicks or Recommendation Pageviews that are not the willing actions of human end users who possess an independent, genuine desire to engage with the content that appears on the relevant page(s), including but not limited to, through (i) repeated manual clicks, use of robots or other automated tools or computer generated requests, (ii) participation in pay-per-click programs, (iii) redirection of search requests to pages that do not contain content reasonably relevant to the search query, or (iv) the provision of consideration to any third party in exchange for the third party causing any Clicks or Recommendation Pageviews to occur; (e) copy, crawl, index, cache or store any information derived by RonSearch, or contained in or concerning a Recommendation; or (f) provide RonSearch any personally identifiable information concerning any Visitor or other person (“PII”). Clause (d) of the previous sentence shall be deemed to have been violated (x) if traffic is not converting above a certain threshold as determined by RonSearch in its sole discretion, or (y) by any Recommendation Pageviews that RonSearch determines, in its sole discretion, were the result of transfers or referrals of Visitors to a Website by a third party content distribution service provider and that resulted in a monthly click-through rate that was less than fifty percent (50%) of the click-through rate experienced by the remainder of the Recommendation Pageviews that occurred on the Website during the same month. A “Recommendation Pageview” shall be deemed to have occurred each time the Widget is loaded to a Website article page, as determined by RonSearch and reported on RonSearch’s analytic dashboard. A “Recommendation Pageview” shall be deemed to have occurred each time the Widget is loaded to a Website article page, as determined by RonSearch and reported on RonSearch’s analytic dashboard. Notwithstanding anything to the contrary herein, RonSearch shall have the right to immediately terminate this Agreement without prior notice to Publisher and to remove the Widget from Publisher’s Website(s) with no further obligation to Publisher in the event of Publisher’s violation of the foregoing Acceptable Use Policy.
Publisher’s sole “Compensation” for its grants of rights and other undertakings under this Order shall be to receive, with respect to each month of the Term, 50% of the Adjested Gross Revenue (as defined below) that Advertisers pay RonSearch for Visitors clicking on Recommendations on the Websites to view RonSearch Sponsored Content. It is understood and agreed that Publisher shall not be entitled to payment of Compensation for Recommendation Pageviews or clicks generated in violation of subparagraph (d) of RonSearch’s Acceptable Use Policy as set forth above. RonSearch shall make the relevant payment to Publisher within 45 of RonSearch’s working days after the end of the calendar month in which that revenue was generated. In respect of VAT, if Publisher is registered for VAT, Publisher shall have provided to RonSearch the relevant VAT number and RonSearch shall add VAT to amounts remitted and pay to Publisher the relevant gross amount. Publisher shall provide to RonSearch a VAT relevant invoice in respect of the same whenever requested by RonSearch. Publisher shall enter into a self-billing agreement and agrees to comply with all relevant requirements with respect to self-billing.
4. Compensation Definitions
“Adjusted Gross Revenue” shall consist of all advertising fees paid by Advertisers to RonSearch for placement of advertising on Publisher’s Website(s), net of any applicable taxes thereon (“Gross Revenue”), minus processing fees of up to 10% of Gross Revenue, which may include, without limitation, the total amount of credit card processing fees, bad debt, charge-backs, deductions, reversals, or credits and refunds to Advertisers.
Publisher and RonSearch understand and agree that RonSearch will be the exclusive Service provider during the Term and Publisher agrees that it will not engage any third party, including without limitation, any of RonSearch’s competitors (e.g., AdBlade, Outbrain, Crowdignite, Gravity, NRelate, ZergNet, Media.net, ContentClick and BroadSpring) to make recommendations on the Websites or provide service that is similar to the Service provided by RonSearch. For clarity, Publisher agrees that any services or recommendations provided by a third party or competitor of RonSearch prior to the Effective Date will be replaced by RonSearch’s Service and Widget on or before the Effective Date.
6. Publisher Warranties
RonSearch warrants that it will undertake its obligations hereunder with reasonable care and skill. The foregoing warranty is the sole and exclusive warranty made by RonSearch. Save for the foregoing, all warranties and conditions, whether express or implied by statute, common law or otherwise are hereby excluded to the extent permitted by law.
As between the parties, RonSearch (and its group) owns all intellectual property rights in the Widget and Service and Publisher owns all intellectual property rights in the Website(s) and Publisher Materials.
- RonSearch shall indemnify, defend, save and hold harmless Publisher and its parent, subsidiaries and affiliates. and its and their representatives, officers, directors, agents, and employees, from and against any and all third-party claims, fines, penalties, damages, awards, judgments, and liabilities (“Losses”) resulting from, arising out, of or related to: (i) RonSearch’s breach or alleged breach of any of RonSearch’s warranties set forth in paragraph 7 of these terms and conditions, or (ii) a claim that the Widget violates a third party trade mark, trade secret, copyright or privacy right, except to the extent that such claim arises out of the combination of the Service or Widget with Publisher Materials.
- Publisher shall indemnify, defend, save and hold harmless RonSearch, its parent, subsidiaries and affiliates, and its and their representatives, officers, directors, agents, and employees, from and against all Losses resulting from, arising out, of or related to (i) Publisher’s breach or alleged breach of any of Publisher’s warranties or agreements, or (ii) a claim that the Websites or any of its content (including all Publisher Material) violates a third party trade mark, trade secret, copyright, patent or privacy right.
- The parties agree that in claiming any indemnification hereunder, the Party claiming indemnification (the “Claimant”) shall (i) promptly notify the other party in writing of the claim; (ii) grant the indemnifying party sole control of the defence (except that the Claimant may, at its own expense, assist in the defence); and (iii) provide the indemnifying party, at the indemnifying party’s expense, with all assistance, information and authority reasonably required for the defence of the claim. In no event shall the indemnifying party enter into any settlement or agree to any disposition of the indemnified claim(s), without the prior written consent of the Claimant.
10. Limitation and Exclusion of Liability
- This paragraph 10 of these terms and conditions prevails over all of this Agreement and sets out the entire Liability of RonSearch, and the sole and exclusive remedies of Publisher, in respect of: (i) performance, non-performance, purported performance, delay in performance or mis-performance of this Agreement, the Order or the Service or of any services in connection with this Agreement; or (ii) otherwise in relation to this Agreement or the Order or entering into this Agreement or the Order.
- Neither party shall exclude or limit its Liability for: (i) its fraud; or (ii) death or personal injury caused by its Breach of Duty; or (iii) any other Liability which cannot be excluded or limited by applicable law.
- Subject to (b) above, neither party shall accept and hereby excludes any Liability for Breach of Duty other than any Liability arising pursuant to the terms of this Agreement.
- Subject to (b) above, RonSearch shall have no Liability in respect of any: (i) indirect or consequential losses, damages, costs or expenses; (ii) loss of actual or anticipated profits; (iii) loss of contracts; (iv) loss of use of money; (v) loss of anticipated savings; (vi) loss of revenue; (vii) loss of goodwill; (viii) loss of reputation; (ix) ex gratia payments; (x) loss of business; (xi) loss of operation time; (xii) loss of opportunity; or (xiii) loss of, damage to or corruption of, data; and in respect of each preceding case, whether or not such losses were reasonably foreseeable or that party or its agents had been advised of the possibility of the other party incurring such losses. Publisher hereby agrees that (ii) to (xiii) above apply whether such losses are direct, indirect or consequential.
- Subject to (b) above, the total aggregate Liability of Ronsearch in respect of a claim under or in connection with this Agreement, an Order or the Service shall be limited to the greater of: (i) £10,000; or (ii) 110% of the total sums paid and total other sums payable, in aggregate, by RonSearch to Publisher under this Agreement in the six month period preceding the last of the events giving rise to that claim.
- The limitation of Liability under (e) above has effect in relation both to any Liability expressly provided for under this Agreement and to any Liability arising by reason of the invalidity or unenforceability of any term of this Agreement.
- In this paragraph 10 of these terms and conditions: (i) “Liability” means liability in or for breach of contract, Breach of Duty, misrepresentation, restitution or any other cause of action whatsoever relating to or arising under or in connection with this Agreement, including, without limitation, liability expressly provided for under this Agreement or arising by reason of the invalidity or unenforceability of any term of this Agreement (and for the purposes of this definition, all references to "this Agreement" shall be deemed to include any collateral contract); and (ii) “Breach of Duty” means the breach of any (x) obligation arising from the express or implied terms of a contract to take reasonable care or exercise reasonable skill in the performance of the contract or (y) common law duty to take reasonable care or exercise reasonable skill (but not any stricter duty).
Neither party will use or disclose to any third party the other party’s Confidential Information (as defined below) except as necessary for the performance of this Agreement. The foregoing obligations will not restrict either party from disclosing Confidential Information of the other party pursuant to a court order from court of competent jurisdiction, provided that the party required to make such a disclosure gives reasonable prior written notice to the other party so that it may contest such order and in the event that disclosure is required, only discloses the portion of Confidential Information that its legal counsel advises it legally required. “Confidential Information” consists of (a) any technical information or plans concerning the Service, Widget or any software or other technology of RonSearch (or any company in its group) or Publisher’s Websites; (b) any other information disclosed by one party to the other party that is marked as confidential or should reasonably be assumed to be confidential under the circumstances; and (c) the content of this Agreement. Confidential Information does not include information that: (a) is or becomes generally known to the public through no fault of or breach of the receiving party; (b) is rightfully known by the receiving party at the time of disclosure without an obligation of confidentiality; (c) is independently developed by the receiving party without use of the disclosing party’s Confidential Information; or (d) is obtained by the receiving party rightfully from a third party who/that has no duty of Confidentiality to the disclosing party.
12. Choice of Law
This Agreement (and all non-contractual relationship arising out of or related to it) shall be governed by and construed in accordance with the laws of Seychelles. The parties hereby submit to the exclusive jurisdiction of the Seychelles courts.
The rights and obligations of each party hereunder shall inure to the benefit of the respective successors and assigns of the parties hereto, provided that, except as expressly provided herein, this Agreement and any rights or obligations in it shall not be assigned or delegated (or charged or otherwise encumbered or a trust created in respect of it or them or otherwise transferred or dealt with) without the prior written consent of the other party (which shall not be unreasonably withheld). The previous sentence notwithstanding, either party may assign this Agreement to another member of its corporate group, or to an acquirer of all or substantially all of such party’s assets, whether by merger, operation of law or otherwise, without the other party’s prior written consent.
The term of the Order will commence upon the Effective Date (set forth below) and will, unless terminated as set forth herein, continue for a period of twelve (12) months from the Effective Date (“Initial Term”). At the end of the Initial Term, the term of this Agreement will automatically renew for additional, successive twelve (12) month periods (each, a “Renewal Term” and the Initial Term and all Renewal Terms, collectively the “Term”), unless one party notifies the other in writing of its intention not to renew at least thirty (30) days prior to the end of the then-current Term.
Publisher may terminate this Agreement (a) for convenience on three (3) days’ written notice (email shall be sufficient) at any time during the thirty (30) day period that commences on the day that the Widget is first rendered visible to Visitors on a Website, or (b) immediately in the event that Ronsearch fails to cure a material breach of this Agreement that is capable of being cured within five (5) days of its receipt of written notice thereof (email shall be sufficient). RonSearch may terminate this Agreement for convenience (for any reason or no reason) immediately upon written notice (email shall be sufficient).
16. RonSearch’s Provision of the Service
Publisher acknowledges that RonSearch’s ultimate parent company, Ronsearch.Com Ltd., owns all intellectual property rights in and to the Widget and Service and that RonSearch is just an authorized distributor of the Widget and Service. Accordingly, Publisher understands and agrees that the Widget will be provided by RonSearch.LTD and that certain other backend services will be performed by RonSearch.Ltd., on behalf of RonSearch. Publisher hereby consents to RonSearch’s delegation of the performance of some of the Service hereunder to RonSearch Ltd., subject to RonSearch remaining liable for the complete and correct discharge of all its responsibilities hereunder.
RonSearch shall have the right to issue a press release announcing its relationship with Publisher.
18. Force Majeure
Neither party will be responsible for any failure or delay in its performance under this Agreement due to causes beyond its reasonable control, including, but not limited to, labour disputes, strikes, lockouts, failures of the Internet, shortages of or inability to obtain energy, raw materials or supplies, war, terrorism, riot, or acts of God.
This Agreement constitutes the complete and exclusive understanding and agreement between the parties regarding the subject matter herein and supersedes all prior or contemporaneous agreements or understandings written or oral, relating to its subject matter. The failure of either party to enforce strict performance by the other party of any provision of this Agreement or to exercise any right under this Agreement shall not be construed as a waiver of that party’s right. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by a duly authorised representative of each party. Should any section or part of a section within this Agreement be rendered void or unenforceable by any court of competent jurisdiction, the remaining provisions of this Agreement shall nevertheless be binding upon the parties with the same effect as though the void or unenforceable part had been severed and deleted. Paragraphs 6-13 and 19 of these terms and conditions shall survive the termination of this Agreement. No person who is not a party to this Agreement shall acquire any rights under it or be entitled to benefit from any of its terms even if that person has relied on any such term or has indicated to any party to this Agreement its assent to any such term. Accordingly, there are no third party beneficiaries of this Agreement who obtain any rights hereunder. Each party acknowledges and agrees that in entering into this Agreement, it does not rely on, and shall have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently or innocently made) of any person (whether party to the Order or not) other than as expressly set out in the Order. Nothing in the Order shall operate to limit or exclude any liability for fraud or for representations as to fundamental matters.