1. DEFINITIONS USED IN THIS AGREEMENT
1.1 ADVERTISER means a person or entity who advertises on the Publisher's Website using the Shiny System.
1.2 ADVERTISER DATA means any contact information, payment related information (e.g. credit card or PayPal information, or other) or other data entered into the Shiny System by any Advertiser for use in relation to Publisher. For greater certainty, information or data give by an Advertiser to Shiny for any other purpose is not Advertiser Data.
1.3 CONFIDENTIAL INFORMATION has the meaning set out in Section 5.1.
1.4 INTELLECTUAL PROPERTY RIGHTS means any intellectual property rights protected or protectable under the laws of Canada or any foreign country, whether by including any intellectual property rights protected by legislation (such as legislation governing copyrights, industrial designs, integrated circuit topographies, patents or trademarks) or by common law (such as confidential information and trade secrets).
1.5 PARTY means a Party to this Agreement.
1.6 PLATFORM means Shiny's proprietary self-service online advertising platform. The Platform accepts orders from Advertisers and their agents, through the Widget and otherwise, to place online advertising with publishers' websites integrated into the Platform, facilitates the serving of those ads to publishers' websites, and processes payment for advertising through the Shiny System.
1.7 PUBLISHER MATERIALS means all materials that are proprietary to Publisher and provided to Shiny to enable Shiny to perform the Services.
1.8 PUBLISHER'S WEBSITE means the website(s) operated by Publisher for which Publisher elects to use the Shiny System.
1.9 SERVICES means the services to be provided by Shiny to Publisher as described in this Agreement and any additional services authorized by Publisher which Shiny agrees to perform hereunder.
1.10 SHINY SYSTEM means the Platform and the Widget, but for certainty does not include any of the advertising processed by the Platform and the Widget.
1.11 SLA means the Service Level Agreement attached hereto as Exhibit A.
1.12 WIDGET means Shiny's proprietary software application that is inserted into a publisher's website to facilitate the integration of the publisher's website(s) into the Platform, in a format branded for each such website as approved by Publisher (e.g. a "white label" version of the widget), and any software, script or code provided by Shiny to Publisher to facilitate the serving of ads to the Publisher's Website through the Platform.
2. THE SERVICES
2.1 Services. The Services shall consist primarily of the provision to and use by Publisher of the Widget as permitted under this Agreement, the integration of the Widget into the Platform , the use by Publisher of any online account area in the Platform provided for its use, as permitted under this Agreement, for the purpose of managing its use of the Shiny System, the integration of the Platform with the DART, OpenX, Google Ad Manager, or Adtech Helios advertising tracking system as mutually agreed upon by the parties, and the processing of payment received from Advertisers, the hosting of all applicable components of the Shiny System by Shiny, and Shiny's performance of all of the foregoing in accordance with the SLA. The Services also include reasonable telephone and email support at no additional charge, during regular business hours in Toronto, Canada, at the contact information provided on Shiny's website, to Publisher in its use of the Shiny System. Publisher is responsible for 1st line support of Advertisers. Shiny can provide support to Advertisers in its own discretion. The Publisher is responsible for installation of the Widget in the Publisher's Website, however Shiny will provide reasonable training and technical support as needed by Publisher in order to facilitate such installation, without charge. Publisher shall maintain the confidentiality of any usernames and passwords provided to it for access to the Platform, and shall be responsible for all activity under its account. The Services are provided for Publisher's use, and except as otherwise expressly set forth herein, may not otherwise be sold, leased, sub-licensed, assigned or transferred to any other person or provided to any other person under an ASP or service bureau relationship. The Services and the use of the Shiny System are not exclusive to the Publisher.
2.2 Appointment. Publisher appoints Shiny as its agent for purposes of placing advertising through the Shiny System according to criteria established by Publisher and communicated in writing to Shiny (e.g. Shiny will not accept any categories of Advertisers or content in advertisements which Publisher has indicated it does not wish to include on Publisher's website), and receiving payment therefor. Publisher acknowledges that advertising with Publisher placed and paid for through the Shiny System is done so by Shiny for Publisher, on Publisher's behalf.
2.3 Advertising Rates. Rates for advertising inventory offered by Publisher through the Shiny System are determined by and the responsibility of Publisher, and Shiny has no responsibility or liability therefor. Shiny will not sell or accept advertisements on Publisher's website outside of the advertising rates specified by Publisher.
2.4 Rejection of Ads. Publisher will have the right to review all proposed Advertisers and Advertiser campaigns before such campaigns go live on Publisher's website. Publisher may reject any proposed Advertisers, ads or campaigns in its sole discretion. In the event that Publisher rejects an advertising campaign, that advertiser will receive a full refund.
2.5 Publisher Materials. Publisher hereby grants to Shiny a non-exclusive, royalty-free, non-transferable, limited right to use any Publisher Materials provided to Shiny, solely to perform Services pursuant to this Agreement. The Parties agree that this grant of rights is expressly made subject to Shiny's confidentiality obligations set forth herein, any other restrictions specified in the Agreement. For further certainty, Shiny acknowledges and agrees that it does not have and shall not acquire any right, title or interest in the Publisher Materials, and that it shall not use Publisher Materials for any purpose other than the Services to be performed for Publisher.
3. FEES AND PAYMENTS
3.1 Timing of Payments to Publisher. Except as otherwise stated herein, Shiny will pay Publisher amounts due to it hereunder for advertising purchases in all completed campaigns within 48 business hours of the end of the campaign, provided in all cases that Shiny will not make any individual payment to Publisher until a minimum of $100 USD (or such greater amount as Publisher determines) owing hereunder to Publisher has accrued. The amounts due to Publisher shall be determined in accordance with Section 3.2 Payments will normally be made by PayPal MassPay to Publisher. Other forms of payment must be approved by Shiny.
3.2 Amount of Payments to Publisher. For any advertising campaign effected through the Shiny System Publisher shall receive hereunder, in USD, the gross advertising revenue received by Shiny therefor, less the following that is applicable to that revenue: (i) the Shiny Fee and any Taxes due thereon; (ii) payment processing fees, including credit card and PayPal fees, and (iv) amounts for any unused impressions/clicks that Shiny refunds back to the Advertiser. All amounts will be paid in USD. Notwithstanding any other provision of this Agreement, Shiny has no obligation to pay any amount to Publisher for advertising placed through the Shiny System unless the Advertiser completes payment to Shiny therefor. If Shiny pays Publisher any amount for an amount which an Advertiser does not pay Shiny, Shiny shall be entitled to credit such paid amount against future payment(s) to Publisher, and if there are no further payments, Publisher shall promptly reimburse such amount to Shiny on demand.
3.3 The Shiny Fee. The Shiny Fee for a campaign effected through the Shiny System is 35.0% of the aggregate revenue paid by the Advertiser for the campaign. Publisher hereby directs Shiny to collect payment for any Shiny Fee in the manner provided in Section 3.2.
3.4 Taxes. Each party is responsible for and shall pay all sales, use, consumption, value added, goods and services and similar taxes (together, "Taxes") exigible in any jurisdiction upon any amounts received by it and owed by it hereunder. For clarification, if any taxes are collected by Shiny which are actually owed by Publisher (e.g. sales tax on ad revenue collected by Shiny on behalf of Publisher), Publisher will have the responsibility to pay such taxes. Each party shall indemnify and save the other party harmless from any claim, loss, assessment, damage or liability, including penalties and interest on any Taxes owed by such party, and reasonable legal fees, to which a party may become subject as a result of the other party's breach of or non-compliance with this Section.
3.5 Reports & Audit. The Shiny System will provide Publisher reports listing all Advertisers (including all applicable contact information for each Advertiser) and campaigns purchased during the specific time periods, amounts collected from all campaigns, and corresponding amounts due to Publisher, and such Advertiser Data will remain accessible to Publisher for the duration of this Agreement, and Shiny will ensure that Publisher is able to download the Advertising Data from the Shiny System at any time, and will ensure that all such Advertiser Data will be exported to Publisher upon termination of this Agreement. Publisher is entitled, on reasonable notice and at its own expense, and not more than once every 3 months, to review Shiny's business records related to the sale and delivery of ads to the Publisher's Website hereunder, for the purpose of verifying Shiny's performance of its obligation under this Agreement. Such information shall be deemed to be Confidential Information of Shiny. This Section shall survive for one year after the termination of this Agreement for any reason.
5.1 Definition. As used in this Agreement, "Confidential Information" of a Party means secret or confidential information which is not generally known to the public and may include, but is not limited to:
- (a) know-how, technical data, research, products, business or financial information, plans or strategies, business practices, operations, procedures, information respecting the customers, of such Party or of its representatives;
- (b) information which due to its nature, or the circumstances surrounding its communication, would be reasonably interpreted as constituting confidential information, including the terms and conditions of this Agreement, regardless of whether marked or otherwise indicated to be confidential;
- (c) any other information of any nature, and in any form, received from or belonging to such Party which is marked or identified as confidential; and
- (d) proprietary or confidential information of a third party or supplied in confidence by a third party, including that of Advertisers or other third party suppliers, in the possession of such Party; which is acquired by a Party in connection with or related in any manner to this Agreement. The Shiny System is Confidential Information of Shiny. Advertiser Data is deemed to be the Confidential Information of Publisher, and Shiny will not use, reproduce, distribute, or make available the Advertiser Data in any manner other than as expressly necessary to carry out this Agreement and provide the Services hereunder for Publisher.
5.2 Exclusions. Confidential Information does not include the following information: (a) information that is known to the recipient at the time of disclosure; (b) information that is available to the general public at the time of disclosure to the recipient or is subsequently made available to the general public, without restrictions as to its use or disclosure, without fault of the recipient; (c) information that is disclosed to the recipient by reason by another person or entity having the right to disclose or publicize it; (d) information that is intentionally distributed without restrictions as to confidentiality by the disclosing Party. In addition, each Party may disclose Confidential Information to the extent that the recipient is compelled, pursuant to applicable law, to disclose it, provided that a Party being compelled to disclose shall provide the other Party with prompt notice (to the extent permitted by law) in order to allow such Party to seek one or more protective orders or other appropriate remedies to prevent or limit such disclosure, and shall co-operate with such Party and its legal counsel to the fullest extent. These exclusions do not apply to Advertiser Data.
5.3 Non-disclosure. Each Party agrees to use the Confidential Information of the other Party solely for the purpose of performing its obligations or exercising its rights under this Agreement, and will disclose such Confidential Information only to those of its own representatives who have a need to know the information in connection therewith, and who are under an enforceable legal obligation to keep same confidential and subject to comparable restrictions as apply to the receiving Party under this Agreement, and shall take appropriate action to ensure their compliance with such obligation. Each Party's efforts to maintain the confidentiality of information under this Agreement, including the measures taken, will not be less than those which the Party takes to prevent disclosure of its own proprietary information of like significance and in no event less than a reasonable standard of care. In the event of a loss of any item containing Confidential Information of the disclosing Party, or other instance as a result of which the unauthorized disclosure of Confidential Information is suspected (or ought reasonably to be suspected) to have occurred, the receiving Party agrees to promptly notify the disclosing Party in writing upon discovery of such loss.
5.5 Equitable Relief. Each Party acknowledges that it would be damaging to the other Party if Confidential Information of the disclosing Party which the receiving Party has or will come into its possession or knowledge in connection with the Agreement or the performance of the Agreement is used other than is authorized under this Agreement or is disclosed to third parties. It is understood that such damages may be difficult to calculate, that monetary damages alone may not be a sufficient remedy for any breach of the confidentiality obligations contained in this Article and that such breach will cause irreparable damage to a Party. It is hereby agreed that upon any such breach, or threatened breach, by the other Party, the non-breaching Party wishing to protect its confidential information will be entitled to seek and obtain equitable relief, including injunctive relief and specific performance, or any other relief as may be granted by any court, without the necessity of proving actual damages or posting of security or a bond.
5.6 Destruction. Each Party, upon request of the other Party or within thirty (30) days after termination of this Agreement (whichever is earlier), agrees to return and cause its representatives to return, all copies of Confidential Information belonging to or provided by the other Party or destroy such copies as directed by that Party and certify their destruction.
5.7 Indemnity. Each Party agrees to indemnify and hold the other Party harmless from and against all loss or damage or any kind and nature suffered by the other Party as a result of any breach by it or its representatives of its obligations relating to confidentiality contained in this Article.
6. WARRANTIES, DISCLAIMER OF WARRANTIES AND DAMAGES AND LIMITATION OF LIABILITY
6.1 Warranties. Shiny represents and warrants that: (i) it will perform the Services in accordance with this Agreement and in a workmanlike and professional manner; (ii) it owns or otherwise has sufficient rights to operate the Shiny System; and (iii) during the Term of the Agreement the functionality of the Shiny System and the Services will not be materially decreased from that available as of the Effective Date.
6.2 Disclaimer of all other Warranties. The express warranties contained in this Agreement are the only warranties made by the Parties. The Parties each expressly disclaim and exclude any and all other representations, warranties and conditions of any kind or nature, express or implied, including, but not limited to, representations, warranties and conditions of merchantability, merchantable or satisfactory quality, title and fitness for a particular purpose, and those arising by statute or otherwise in law or from a course of dealing or usage of trade. Shiny does not represent or warrant (i) that the operation of the Shiny System will be error-free or uninterrupted, (ii) that all programming errors can be corrected, (iii) as to any minimum amount or value of advertising served to Publisher or revenue earned by the Publisher through the Shiny System, or (iv) as to the content, nature or effect of any advertising served through the Shiny System.
6.3 No Indirect, Etc. Damages. Except for breach of Section 3.4 (Taxes) or Article 5 (Confidentiality), and for Article 7 (Indemnity), under no circumstances shall either Party be liable to the other Party for any claim, demand or cause of action whether based on contract, tort (including negligence) or otherwise, or for any losses, damages, costs and expense (including but not limited to legal fees) (collectively, "Losses") for (i) indirect, special or consequential damages, (ii) compensation for loss of profits, anticipated revenue, savings or goodwill, or other economic loss of either party, (iii) exemplary, aggravated or punitive damages howsoever incurred; in each case under any theory of law or equity, arising out of or in any way related to this Agreement or any Services, even if advised of the possibility thereof. Loss of advertising revenue because of malfunction in the Shiny System shall be deemed to be indirect damages.
6.4 Limitation of Aggregate Liability. Except as otherwise specifically provided under this Agreement, other than for amounts due under Sections 3.2 or 3.3, neither Party's aggregate liability to the other arising out of or relating in any way to this Agreement shall exceed the aggregate amount paid by Publisher to Shiny in respect of Shiny Fees during the 12 months prior to the occurrence of the incident giving rise to the claim. This limitation of liability shall not apply to liability under Section 3.4 (Taxes), Article 5 (Confidentiality) or Article 7 (Indemnity).
6.5 Limitations Reasonable. The Parties agree that the limitations of liability set out in this Article are fair and reasonable in the commercial circumstances of this Agreement and that each Party would not have entered into this Agreement but for the agreement to limit its respective liability in the manner, and to the extent, provided for herein. The limitations, exclusions and disclaimers in this Agreement shall apply irrespective of the nature of the cause of action, demand or claim, including, without limitation breach of contract, negligence, tort, strict liability or any other legal theory and shall survive a fundamental breach or breaches or the failure of the essential purpose of this agreement.
7.1 Indemnity by Shiny. Subject to the limitations and disclaimers set forth in this Agreement, Shiny shall (i) at its own expense defend Publisher and its parent company from any third party claim (a "Claim") that the Shiny System infringes any other person's copyright, registered patent or other intellectual property right enforceable in the U.S. or Canada, and shall (ii) indemnify the Publisher and its parent company from any damages, awards and expenses from such a Claim that are adjudicated by a court and held to be valid, following the exhaustion of all appeals; provided that (x) Publisher notifies Shiny in writing within 10 days of becoming aware of a Claim; (y) Shiny shall not have the right to compromise or settle any Claim without the prior written approval of Publisher; and (z) Publisher provides Shiny with the information, assistance and authority to enable Shiny to perform its obligations under this Section and co-operates fully in Shiny's defense or settlement (subject to (y) hereof) of such Claim. This Section states Publisher's sole liability with respect to third party Claims of infringement of third party intellectual property rights of any kind. For greater certainty, Shiny shall have no liability to Publisher for any claim relating to any advertising, media or other content created by any other person, including advertising served to Publisher's Website using the Shiny System. Shiny does not create any advertising served through the Shiny System, and has no responsibility or liability for it. Upon its becoming aware of any Claim, Shiny shall have the right to replace any part of the Shiny System with non-infringing materials.
8. TERM AND TERMINATION
8.1 Term. This Agreement shall have an indefinite term, and may be terminated by either Party for convenience on ten (10) days prior written notice. Termination shall not prejudice a Party's right to payment of amounts due or accruing due at the time of termination.
8.2 Immediate Termination. Either Party may immediately upon written notice terminate this Agreement in the event the other Party (i) suspends or ceases conducting business in the normal course, (ii) becomes insolvent, (iii) makes a general assignment for the benefit of creditors, (iv) suffers or permits the appointment of a receiver, receiver and manager, or interim receiver, for its business or assets, (v) avails itself of, or becomes subject to, any proceedings under any other statute of any federal government, province or state relating to bankruptcy, insolvency, reorganization, moratorium, arrangement of debt or the protection of rights of creditors, (vi) makes any proposal, arrangement or compromise with its creditors under applicable bankruptcy or insolvency legislation, or (vii) breaches or is suspected to have breached its obligations of confidentiality under this Agreement.
8.3 Other Termination Obligations. Upon termination of this Agreement for any reason, each Party shall promptly deliver to the other all papers, databases, documents, software programs, and other tangible items (including all copies) constituting the other Party's Confidential Information in its possession or under its control, or on request destroy such materials and certify that it has done so. Publisher shall upon any termination remove any part of the Shiny System from Publisher's Website.
9.1 Force Majeure. Except as expressly provided otherwise in this Agreement, dates and times by which Publisher or Shiny is required to perform under this Agreement will be postponed automatically to the extent and for the period of time that Publisher or Shiny, as the case may be, is prevented by causes outside of its reasonable control from meeting such dates and times by reason of any cause beyond its reasonable control (provided that a lack of financial resources shall not constitute an event beyond the reasonable control of a Party).
9.2 Assignment. Publisher may not assign or transfer its rights, duties or obligations under this Agreement, in whole or in part, to any person or entity, without the prior written consent of Shiny, which consent shall not be unreasonably withheld. Any attempted assignment in contravention of this Article shall be null and void. This Agreement will be binding on each party's permitted successors and assigns.
9.3 Notices. Any formal notice, request, demand, consent or other communication required or permitted hereunder, excluding routine communications, is to be given by personal delivery, in writing, transmitted by facsimile transmission, sent by email, or sent by registered or certified mail, during normal postal conditions, postage prepaid, written receipt requested, addressed to the Party for which it is intended. Provided, however, that any Party may change its address for purposes of receipt of communications by giving not less than ten business days' prior written notice of the change to the other Party in the manner prescribed above. Any notice so given is deemed to have been received on the next Business Day following the date it was hand delivered or transmitted by telegram or facsimile machine, upon acknowledgement of receipt by a person if sent by email, or if mailed on the fifth business day next following the mailing of the notice during normal postal conditions. In the event of a postal disruption, any notice mailed will be deemed received on the fifth business day following the resumption of regular postal service. Where notice is given by facsimile then the hardcopy of the original notice shall be sent by prepaid regular mail on the next business day after the original notice was sent.
9.4 Governing Law. This Agreement is governed by and construed in accordance with the laws of the Province of Ontario and the federal laws applicable therein. The Parties irrevocably and unconditionally consent, submit and attorn to the non-exclusive jurisdiction of the courts of Ontario and all courts competent to hear appeals from them for the purpose of any action or proceeding brought by either of them in connection with or arising out of this Agreement.
9.5 Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes all previous negotiations, proposals, commitments, writings and understandings of any nature whatsoever, whether oral or written, unless they are expressly incorporated by additional reference in the Agreement.
9.6 Amendments. Shiny may amend any of Sections 3.1 through 3.3 on one or more occasions by giving 30 days notice to Publisher by email to the email address customarily used by Publisher to communicate with Shiny, or by notice in accordance with Section 9.3. No such amendment shall have any effect upon any advertising campaign then in progress or amounts already due to Publisher hereunder. Shiny may elect to effect such an amendment by substituting for any of the foregoing Sections, or any part or parts thereof, a reference by incorporation to any comparable information published on the Shiny website, as it may thereafter be revised on one or more occasions. Otherwise, no modification, amendment, supplement to or waiver of this Agreement, or any of their provisions shall be binding upon the Parties hereto unless made in writing and duly signed by both Parties. If any consents of a Party are required pursuant to this Agreement, such consents shall not be unreasonably withheld or unduly delayed.
9.7 Customer as Reference Client. Shiny shall be entitled to use the name of Publisher on Shiny's website, general sales collateral and in sales and marketing communications for the sole purpose of identifying Publisher as a customer of Shiny. Publisher shall have the right to approve any use of its names, logos and trademarks by Shiny prior to such use, including those described in the preceding sentence. Publisher may revoke consent previously given at any time, and upon such revocation, Shiny must promptly remove Publisher's name from the website or in the next printing of any printed materials.
9.8 Benefits. This Agreement is binding upon and endures to the benefit of the Parties and their respective successors and permitted assigns, if any, of the Parties hereto, except that nothing contained in this provision shall be construed to permit any attempted assignment which would be unauthorized or void pursuant to any other provision of this Agreement.
9.9 Survival. Any terms and conditions of this Agreement which by their nature extend beyond the termination of this Agreement shall survive such termination. This includes, without limitation Section 3.4, Article 4 (Ownership; License), Article 5 (Confidentiality), Article 6 (Warranties, Disclaimer Of Warranties And Damages And Limitation Of Liability), Article 7 (Indemnity), Section 9.4 (Governing Law) and Section 9.11 (Non-Solicitation of Personnel).
9.10 Independent Contractors. Each Party's relationship with the other Party will be that of an independent contractor. Nothing in this Agreement is to be construed as designating either Party as an agent, employee, joint venturer or partner of the other Party. Neither Party shall have the authority to serve as agent for the other Party, to make any statement, representation or commitment of any kind on behalf of the other Party not to take any action which may be binding on the other Party. Shiny may subcontract any Services to be performed hereunder without the consent of the Publisher in each instance.
9.11 Non-Solicitation of Personnel. Neither Party shall without the other Party's prior written consent solicit for hire any of the other Party's employees who are directly involved in the provision or receipt of the Services during the time such personnel are involved providing or receiving the Services and for twelve (12) months thereafter. This provision shall not restrict the right of either Party (1) to solicit or recruit generally in the media, and (2) to hire, without the prior written consent of the other Party, any personnel of the other Party who answers any advertisement or who otherwise voluntarily applies for hire without having been initially personally solicited or recruited by the hiring Party.
9.12 Language. The Parties have requested that this Agreement and all documents contemplated thereby or relating thereto be drawn up in the English language. Les Parties ont requis que cette Convention ainsi que tous les documents qui y sont envisagŽs ou qui s'y rapportent soient rŽdigŽs en langue anglaise.
9.13 No Waiver. The waiver or failure of either Party to exercise any right in any respect provided for herein will not be deemed a waiver of any further right hereunder.
9.14 Enforceability. If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, that provision shall be modified and enforced to the maximum extent permissible so as to affect the intent of the Parties, and the remainder of this Agreement will continue in full force and effect.
9.15 Remedies. Unless otherwise specified herein, the rights and remedies of both Parties set forth in this Agreement are not exclusive and are in addition to any other rights and remedies available to it at law or in equity.
10. SERVICE LEVEL AGREEMENT
10.1 Hosting uptime guarantee: Shiny will make reasonable efforts to achieve 98% uptime (other than scheduled maintenance). Uptime percentage will be monitored by Shiny and communicated to Publisher in the Shiny System.
10.2 Response time to fix defects: Shiny will make reasonable efforts to fix critical defects (defects that prevent new advertising orders from being submitted) within 24 hours, and to fix other defects within 96 hours.
10.3 Scheduled maintenance: Shall be communicated at lest 24 hours in advance and will not take longer than 6 hours. Most scheduled maintenance should be performed during off-peak hours of 1am to 7am EST.
10.4 Backups: The Shiny System is backed up every night. Upon a hard drive failure, all Publishers will be notified and the last backup available will be restored.
10.5 Remedies: Publisher's sole remedy for breach of this SLA is termination of this Agreement.