PLEASE READ THESE CONTENT PROVIDER TERMS & CONDITIONS CAREFULLY BEFORE UPLOADING ANY CONTENT. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, DO NOT PROVIDE ANY CONTENT.
PK4 Media, Inc. and its affiliates (collectively, “PK4 Media”) and you (“Content Provider”) enter into this Content Provider Terms & Conditions (“Agreement”) to establish the exclusive terms and conditions pursuant to which Content Provider may provide to PK4 Media certain content (“Content”) for use throughout the PK4 Media Network (the “Network”) and in connection with the marketing of advertisements on behalf of PK4 Media’s customers (“Advertisers” or “Customers”). The submission of any content by Content Provider is construed as an acceptance of all of the terms and conditions of this Agreement.
1. Content
(a) Content Delivery. Content Provider shall provide the Content to PK4 Media in the format specified by PK4 Media via electronic means or other means specified by PK4 Media. Content Provider acknowledges and agrees that PK4 Media reserves the right to reject, discontinue use of or omit any Content in PK4 Media’s sole discretion, and this right shall not be deemed to have been waived by acceptance or actual use of any Content. Without limiting the foregoing, PK4 Media may reject any Content that PK4 Media feels, in its sole discretion, is not in keeping with the standards outlined herein.
(b) License. Content Provider hereby grants to PK4 Media a non-exclusive, worldwide license under all of Content Provider’s rights in the Content to use, reproduce, distribute, transmit in any medium, and display the Content in connection with PK4 Media’s operation of the Network. PK4 Media is permitted to modify the Content to shorten the time or adjust the size to fit the Content to the screen and allotted time. Content Provider agrees that PK4 Media may, but is not obligated to, display Content across the entire Network or on one or more specific site(s). PK4 Media will use commercially reasonable efforts to ensure that competitive brands are not advertised when the Content is presented by a publisher.
(c) Representations and Warranties Regarding Content. Content Provider is solely responsible for all Content that Content Provider provides to PK4 Media. Content Provider represents and warrants that:
(i) Content Provider has the right to grant PK4 Media the licenses set forth herein;
(ii) neither the Content, any part thereof, any materials contained therein or synchronized therewith, the title thereof, nor the exercise of any right, license or privilege herein granted, violates or will violate or infringes or will infringe any trademark, trade name, agreement, copyright (whether common law or statutory), patent, literary, artistic, dramatic, personal, private, civil or property right or right of privacy or ‘‘moral rights of author’’ or any other right whatsoever, or slanders or libels any person, firm, corporation or association;
(iii) Content Provider has obtained (A) consent(s) to use the image or voice of any person(s) appearing in or portrayed by the Content; and (B) consent(s) to use from any person(s) who may have a legal claim to any rights to the Content.
(iv) the Content does not include unauthorized disclosure of personal information;
(v) the Content is not inaccurate, unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially or ethnically offensive; and
(vi) the Content does not contain any software viruses or other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment.
(d) Intellectual Property Ownership. Subject to the licenses granted to PK4 Media hereunder, each party shall own and shall retain all right, title and interest in its trade names, logos, trademarks, service marks, trade dress, Internet domain names, copyrights, patents, trade secrets, knowhow and proprietary technology, including, without limitation, those trade names, logos, trademarks, service marks, trade dress, copyrights, patents, testimonials, endorsements, know how, trade secrets and proprietary technology currently used or which may be developed and/or used by it in the future ("Intellectual Property"). Except as provided in this Agreement, neither party may distribute, sell, reproduce, publish, display, perform, prepare derivative works or otherwise use any of the Intellectual Property of the other party without the express prior written consent of such party.
(e) Data Ownership. Content Provider understands that all data, including, but not limited to, personally identifiable information provided by users in connection with their access to and use of the Network and/or any or all reports, results, and/or information created, compiled, analyzed and/or derived by PK4 Media from such data is the sole and exclusive property of PK4 Media and is considered Confidential Information pursuant to this Agreement. PK4 Media and/or its Advertisers, in their sole discretion, shall have the right to market and re-market the user(s) and or data without further obligation to Content Provider. Content Provider shall not make any use of, copy, make derivative works from, sell, transfer, lease, assign, redistribute, disclose, disseminate, or otherwise make available in any manner, such information, or any portion thereof, to any third-party. Unless otherwise agreed to in writing by the parties, any other use of such information is strictly prohibited.
2. PK4 Media Network
(a) PK4 Media Websites. For purposes of this Agreement, all Websites that are owned, operated or hosted by or on behalf of PK4 Media, including, without limitation, PK4 Media's branded Websites at www.PK4Media.com and such additional sites as set forth in Schedule 2(a) attached hereto, are referred to herein collectively as the "PK4 Media Websites." Content Provider agrees that it will not use the PK4 Media Websites or any content therein or data obtained therefrom for any purposes other than to fulfill this Agreement and that Content Provider will not disseminate any of the information contained on PK4 Media Websites. Content Provider agrees that it will not use any automated means, including, without limitation, agents, robots, scripts, or spiders, to access or manage Content Provider's account with PK4 Media or to monitor or copy the PK4 Media Websites or the content contained therein except via automated means expressly made available by PK4 Media, if any, or authorized in advance and in writing by PK4 Media (for example, PK4 Media-approved third-party tools and services). The PK4 Media Websites contain robot exclusion headers and Content Provider agrees that it will not bypass PK4 Media's robot exclusion headers (including using any device, software or routine to accomplish that goal), or to interfere or attempt to interfere with the proper working of the PK4 Media Websites or any program thereon, or the PK4 Media system. Without limitation to the foregoing, Content Provider further agrees that it will not take any action that imposes an unreasonable or disproportionately large load on the PK4 Media Websites, any programs thereon, or PK4 Media's infrastructure, as determined by PK4 Media.
(b) Proprietary Relationships. PK4 Media has proprietary relationships with the advertisers and publishers that make up the Network. With the exception of reasonably documented, preexisting relationships with direct publishers or networks or relationships entered into in the ordinary course of Content Provider’s business, Content Provider agrees not to solicit, induce, recruit or encourage, directly or indirectly, any publishers or advertisers that the Content Provider knows, or has reason to know, is an advertiser or publisher on the Network for the purpose of offering to such advertiser or publisher products or services that compete with those of PK4 Media, including, without limitation, the placement or hosting of advertising in any form without the express, written consent of PK4 Media. Content Provider understands that in the event of a breach of the forgoing representations by Content Provider, PK4 Media shall be entitled to injunctive or other equitable relief as a remedy therefor, without the necessity of posting a bond with respect thereto. Any such relief awarded shall be in addition to any appropriate relief which may be awarded in the form of monetary damages, and PK4 Media shall be entitled to monetary damages to the fullest permitted under applicable law. The foregoing remedy is a material, bargained for basis of this agreement and has been taken into account in each party’s decision to enter into this Agreement.
3. Payment
In consideration of the licenses granted to PK4 Media hereunder, PK4 Media will pay to Content Provider a percentage of the amounts actually received and recognized by PK4 Media from Advertisers with respect to Content published on the Network, which percentage will be determined by PK4 Media on a case-by-case basis depending on the Content provided by Content Provider. The amount of such fee payable to Content Provider will be calculated after deducting from the amounts received and recognized by PK4 Media the amounts owing to PK4 Media. PK4 Media reserves the right to set campaign rates, which may vary with market conditions, and all amounts due to Content Provider hereunder will be determined based on PK4 Media's statistics. Content Providers will typically be paid within thirty (30) business days after the end-of-month. Content Provider shall not invoice PK4 Media; all Content Provider invoices are discarded. Content Providers will be paid at the account level. All accounts will be settled in US dollars ($US). No check will be issued for any amount less than $100US ("Minimum Payment Threshold"). All unpaid earnings will rollover to the next pay period. Based on the Minimum Payment Threshold, any Content Provider account that goes unpaid for six (6) months becomes subject to immediate payoff. As a condition to PK4 Media's obligation to make payments hereunder to Content Provider, Content Provider must have on file with PK4 Media a completed and accurate W-9 (for US-based Content Provider's) or a completed and accurate W-8 (for non-US-based Content Provider's). Content Provider Fees will be withheld until the appropriate taxation documents are received by PK4 Media. If the required tax documents are not on file with PK4 Media within three months of the date of a scheduled payment, PK4 Media may charge a monthly administrative fee, representing PK4 Media's cost of establishing and maintaining Content Provider's account, equal to 25% of the original balance. All payments are based on actuals as defined, accounted and audited by PK4 Media. PK4 Media reserves the absolute right to withhold payment from accounts or Content Providers that violate any of the terms and conditions set forth herein. PK4 Media will determine, in its sole discretion, whether acts or omissions are deceptive, fraudulent or violate this Agreement.
4. Mutual Representations and Warranties
Each party represents and warrants to the other that: (a) such party is duly organized, validly existing and in good standing under the laws of its jurisdiction of its organization; (b) such party has the legal right and authority to enter into and perform its obligations under this Agreement; (c) the execution and performance of this Agreement will not conflict with or violate any provision of any law having applicability to such party; and (d) this Agreement, when executed and delivered, will constitute a valid and binding obligation of such party and will be enforceable against such party in accordance with its terms.
5. Indemnity
Content Provider shall indemnify, defend, and hold harmless PK4 Media and its officers, directors, employees, agents, shareholders, partners, affiliates, representatives, agents, advertisers and publishers (collectively, "Indemnified Parties") from and against claims, suits, demands and actions brought against the Indemnified Parties or tendered to the Indemnified Parties for defense and/or indemnification (collectively “Claims”) and for all resulting damages, losses, costs and liabilities (including reasonable attorney and professional fees) (collectively “Losses”) that arise or result from Claims which allege: (a) that the Content, any part thereof, any materials contained therein or synchronized therewith, the title thereof, the exercise of any right, license or privilege herein granted, violates or infringes any trademark, trade name, agreement, copyright (whether common law or statutory), patent, literary, artistic, dramatic, personal, private, civil or property right or right of privacy or ‘‘moral rights of author’’ or any other right whatsoever, or slanders or libels any person, firm, corporation or association; (b) damages resulting from any breach by Content Provider of any duty, representation or warranty under this Agreement; (c) damages resulting from gross negligence or willful misconduct by Content Provider. Indemnified Parties may participate in such defense at their option and expense. Content Provider will not settle any such suit or claim without Indemnified Parties’ prior written approval unless such settlement: (i) includes a complete release of all Indemnified Parties; (ii) does not require any Indemnified Party to pay any amount or deliver any other consideration; and (iii) places no restriction on the future conduct of any Indemnified Party.
6. Limitations of Warranties and Liability
(a) Disclaimer of Warranties. ALL SERVICES PROVIDED BY PK4 MEDIA ARE PROVIDED ON AN "AS IS" "AS AVAILABLE" BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, PK4 MEDIA MAKES NO WARRANTIES, GUARANTEES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS, OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN, OR OTHERWISE EXCEPT AS EXPRESSLY SET FORTH HEREIN. PK4 MEDIA IS NOT RESPONSIBLE FOR DELAYS CAUSED BY ACCIDENT, WAR, ACT OF GOD, EMBARGO, COMPUTER SYSTEM FAILURE, OR ANY OTHER CIRCUMSTANCE BEYOND ITS CONTROL.
(b) Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL PK4 MEDIA BE LIABLE TO CONTENT PROVIDER FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF PK4 MEDIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM ANY ASPECT OF THE ADVERTISING RELATIONSHIP PROVIDED HEREIN. IN NO EVENT SHALL PK4 MEDIA'S TOTAL OBLIGATIONS OR LIABILITY HEREUNDER EXCEED FIVE HUNDRED DOLLARS ($500.00). REGARDLESS OF ANY LAW TO THE CONTRARY, NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST PK4 MEDIA MORE THAN ONE (1) YEAR AFTER THE DATE UPON WHICH THE CLAIM AROSE.
(c) Basis of Bargain. CONTENT PROVIDER ACKNOWLEDGES THAT PK4 MEDIA HAS AGREED TO PRICING IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH HEREIN, AND THAT THESE CONSIDERATIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. CONTENT PROVIDER AGREES THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY AND DISCLAIMERS SPECIFIED IN THESE TERMS WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR LIABILITIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO CONTENT PROVIDER.
7. Term and Termination
(a) Termination. This Agreement, as may be amended, applies to Content Provider unless terminated by either party pursuant to the terms and conditions of this Agreement. Either party reserves the right to terminate this Agreement or one or more pieces of Content provided by Content Provider (in which case this Agreement will remain in effect for all other Content provided by such Content Provider) immediately by providing writing notice of termination to the party.
(b) Post-termination. Content Provider will be paid, in the next scheduled payment cycle following termination, all legitimate, non-fraudulently accrued, earnings due up to the time of termination. PK4 Media will not pay Content Provider for any earnings accrued for Content provided in violation of the terms of this Agreement. If a Content Provider has not reached the Minimum Payment Threshold, the Content Provider will be charged an administrative fee representing PK4 Media's cost of establishing and maintaining the Content Provider's account; such fee to be any balance remaining in the Content Provider's account. Following termination of all or part of this Agreement, PK4 Media will have thirty (30) days to remove any Content that is the subject of such termination.
8. Confidentiality
Each party agrees that it may provide the other with information that is confidential and proprietary to that party or a third- party, as is designated by the disclosing party or that is reasonably understood to be proprietary and/or confidential ("Confidential Information"). PK4 Media's campaign rates are considered confidential. Each party may use Confidential Information received from the other party only in connection with and to further the purposes of this Agreement. Confidential Information shall not be commingled with information or materials of others and any copies shall be strictly controlled. The receiving party agrees to use the same degree of care that it uses to protect its own Confidential Information, but in no event less than a reasonable degree of care, to maintain the confidentiality of and to protect the Confidential Information of the disclosing party. Confidential Information shall not include (even if designated confidential by a party) information: (i) that is or becomes part of the public domain through no act or omission of the receiving party; (ii) that is lawfully received by the receiving party from a third-party without restriction on use or disclosure and without breach of this Agreement or any other agreement without knowledge by the receiving party of any breach of fiduciary duty, or (iii) that the receiving party had in its possession prior to the date of this Agreement. Upon termination of this Agreement, or upon written request by PK4 Media, Content Provider must destroy or return to PK4 Media any Confidential Information provided by PK4 Media under this Agreement.
9. Choice of Law and Attorneys' Fees
This Agreement is governed by the laws of the State of California (USA), except for its conflict of law provisions. The exclusive forum for any actions related to this Agreement shall be in the state courts, and, to the extent that federal courts have exclusive jurisdiction, in Los Angeles, California. The parties consent to such venue and jurisdiction, waive any right to a trial by jury, and agree to waive the personal service of any process upon them by agreeing that service may be effected by overnight mail (using a commercially recognized service) or by U.S. mail with delivery receipt to the last address provided by Content Provider. The application of the United Nations Convention on the International Sale of Goods is expressly excluded. A party that primarily prevails in an action brought under this Agreement is entitled to recover from the other party its reasonable attorneys fees and costs.
10. Entire Agreement and Modification
This Agreement, including exhibits and addenda, contains the entire understanding and agreement of the parties and there have been no promises, representations, agreements, warranties or undertakings by either of the parties, either oral or written, except as stated in this Agreement. This Agreement may only be altered, amended or modified by an instrument that is assented to by each party to this Agreement by verifiable means, including without limitation by written instrument signed by the parties or through a "click through" acknowledgement of assent. No interlineations to this Agreement shall be binding unless initialed by both parties. Notwithstanding the foregoing, PK4 Media shall have the right to change, modify or amend ("Change") this Agreement, in whole or in part, by posting a revised Agreement at least five (5) days prior to the effective date of such Change. Content Provider's authorization of PK4 Media’s use of the Content after the effective date of such Change shall be deemed Content Provider's acceptance of the revised Agreement. No change, amendment, or modification of any provision of the Agreement by Content Provider will be valid unless set forth in a written instrument signed by an executive of both parties with the corporate authority to do so. Notwithstanding the foregoing, the parties agree that the in the event of a conflict between the terms of this Agreement and a separate written agreement executed by hand by both parties, the separate agreement executed by hand by both parties will control.
11. Notice
Except as provided elsewhere herein, both parties must send all notices relating to this Agreement to: (i) for PK4 Media, via registered mail, return receipt requested or via an internationally recognized express mail carrier to: CEO and General Counsel, 1600 East Franklin Avenue, Suite C, El Segundo, CA 90245, USA (effective upon actual receipt); and, (ii) for Content Provider at the email or physical address listed on Content Provider’s account (effective upon sending as long as PK4 Media does not receive an error message regarding delivery of the email) or five (5) days after mailing).
12. Assignment
No rights or obligations under this Agreement may be assigned by Content Provider without the prior written consent of PK4 Media. Any assignment, transfer or attempted assignment or transfer in violation of this Section shall be void and of no force and effect. PK4 Media and any of its subsequent assignees may assign this Agreement, in whole or in part, or any of its rights or delegate any of its duties, under this Agreement to any party. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns.
13. Independent Contractors
Each party is an independent contractor. Any intention to create a joint venture or partnership between the parties is expressly disclaimed. Except as set forth herein, neither party is authorized or empowered to obligate the other or to incur any costs on behalf of the other without the other party's prior written consent.
14. Marketing
Content Provider shall not release any information regarding campaigns, contents, or Content Provider’s relationship with PK4 Media or its customers, including, without limitation, in press releases or promotional or merchandising materials, without the prior written consent of PK4 Media. PK4 Media shall have the right to reference and refer to its relationship with Content Provider for marketing and promotional purposes. No press releases or general public announcements shall be made without the mutual consent of PK4 Media and Content Provider.
15. Force Majeure
Neither party shall be liable by reason of any failure or delay in the performance of its obligations hereunder for any cause beyond the reasonable control of such party, including but not limited to electrical outages, failure of Internet service providers, default due to Internet disruption (including without limitation denial of service attacks), riots, insurrection, acts of terrorism, war (or similar), fires, flood, earthquakes, explosions, and other acts of God.
16. Survival and Severability
Any obligations which expressly or by their nature are to continue after termination, cancellation, or expiration of the Agreement shall survive and remain in effect after such happening. Each party acknowledges that the provisions of the Agreement were negotiated to reflect an informed, voluntary allocation between them of all the risks (both known and unknown) associated with the transactions contemplated hereunder. All provisions are inserted conditionally on their being valid in law. In the event that any provision of the Agreement conflicts with the law under which the Agreement is to be construed or if any such provision is held invalid or unenforceable by a court with jurisdiction over the parties to the Agreement, then (i) such provision will be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law; and (ii) the remaining terms, provisions, covenants, and restrictions of the Agreement will remain in full force and effect.
17. Remedies and Waiver
Except as otherwise specified, the rights and remedies granted to a party under this Agreement are cumulative and in addition to, not in lieu of, any other rights and remedies which the party may possess at law or in equity. Failure of either party to require strict performance by the other party of any provision shall not affect the first party's right to require strict performance thereafter. Waiver by either party of a breach of any provision shall not waive either the provision itself or any subsequent breach.
Effective Date: April 10, 2012
Schedule 2(a)
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