This Advertiser Agreement (hereinafter referred to as the “Agreement”) governs the relationship between NicheMovies, LLC (hereinafter referred to as “Niche”, “we”, “our”, “us”), owner and operator of WomensGolfNiche.com (“Platform”), and the Advertiser (hereinafter referred to as “Advertiser”, “you”) as defined in paragraph 1.
The Platform provides access to video, audio and written content, and other media content pertaining to women’s golf and similar interests (together the “Platform Content”) to users, visitors, and subscribers of the Platform (“Users”). Advertiser wishes to advertise its products, services and offerings on the Platform to the Users through the Platform tools, including a digital Advertiser store (the “Store”) consisting of a page where the Advertiser can advertise its products and services, and more fully defined below, an Advertiser banner ad(s) (“Banner”) placed on the Platform.
By signing up as an Advertiser with us, you agree that you are entering into a binding contract with Niche and agree to be bound by these terms and conditions.
1. DEFINITIONS
“Advertiser” means an entity that creates a Store, or Banner and wishes to access the Users to promote Advertiser and to increase traffic to Advertiser’s Website, defined below. The Store and Banner are collectively referred to as the “Advertising”.
“Advertiser Content” refers to all materials, including without limitation, text, layouts, artwork, graphics, scripts, presentations, drawings, documents, logos, designs, charts, images, photos, films trademarks and copyrights for any type of advertising including for the purpose of advertising and promoting Advertiser.
“Advertiser Store Page” is the page on the Platform that will promote the Advertiser using the design tools on the Platform. Each Advertiser Store Page is specific to that Advertiser.
“Advertising Type” means the type of Advertising selected by the Advertiser, whether it be a Store, and/or Banner. The Advertiser may select one or multiple Advertising Types.
“Advertiser Website” means the Advertiser website or app to which the User will be directed when they click on the links provided by Advertiser on the Advertiser Store Page (“Advertiser Links”).
“Advertising Order Form” is the page on the Platform the Advertiser completes to place its order for Advertising. The Advertising Order Form includes the Advertising Type(s) and Advertising Rates selected by the Advertiser in addition to the Advertiser checking the “By clicking the checkbox” box to signify its acceptance of the terms and conditions of this Agreement.
“Advertiser Approval Notice” is the written notice Niche provides to the Advertiser informing the Advertiser that its Advertising has been approved for placement on the Platform. The Advertiser Approval Notice includes confirmation of the Advertising Type(s) and Advertising Rates selected by the Advertiser as published on the Advertising Order Form.
2. SERVICES
a. Niche shall place the Advertising to increase traffic to Advertiser through access to Users. Users shall have the option to click on the Advertiser Links, which include taking the Users to the Advertiser Website. Advertiser and Niche recognize that the Advertiser is given the possibility to monetize its traffic through the Advertiser Links provided in the Advertising.
b. Niche does not guarantee any given level of circulation, number of impressions, conversions or other distribution, reach or readership for the Advertiser via Advertising on the Platform. We reserve the right, without any liability whatsoever, to reject, omit, remove, or exclude any Advertiser Content for any reason at any time, with or without notice to the Advertiser, and whether Advertiser Content was previously acknowledged, accepted or published. Unless otherwise agreed to in writing by both parties, the location for the placement of the Advertising on the Platform is at the sole discretion of Niche.
3. TERM/TERMINATION.
a. Unless earlier terminated pursuant to the terms of this Agreement, this Agreement shall start on the Effective Date and remain in effect, in perpetuity, until terminated by either party for any reason. The Effective Date begins on the date Niche provides the Advertiser Approval Notice to the Advertiser.
b. If the Advertiser wishes to terminate this Agreement for any reason, it must give Niche written email notice (deliver with “request a read receipt” email to: advertising@womensgolfniche.com ). The date of the read receipt confirmation will serve as the effective date of termination.
c. Niche may terminate this Agreement for any reason by giving Advertiser written email notice (deliver with “request a read receipt” to the contact email address Advertiser entered on the Advertising Order Form). The date of the read receipt confirmation will serve as the effective date of termination.
d. In the event of termination by either party, Advertiser shall pay to Niche any Advertising Fees (see, Advertisement Fees, below) due to Niche up to the effective date of termination.
e. In the event of termination by either party for any reason, Advertiser’s Advertising shall be removed from the Platform within two (2) business days after the effective date of termination.
4. REPRESENTATIONS AND WARRANTIES. Advertiser represents and warrants that:
a. It has the full legal authority to enter into this Agreement and grant the rights hereunder and to use and to authorize others to use all elements in and pertaining to the Advertiser Content including all elements of the Advertiser Content that are subject to protection under any and all intellectual property rights or other applicable laws including, privacy, data protection and advertising.
b. It owns or holds the required intellectual property rights and/or licenses to permit the use, posting, reproduction, distribution, and transmission by Niche of the Advertiser Content, including any and all pages, digital assets and other materials to which Users can gain access through the Links, and any products, services or other offerings that are the subject of the Advertiser Content.
c. All Advertiser Content, and the marketing thereof, comply with the Content Standards below and do not violate any and all applicable laws or the intellectual or other rights of any third parties in any way.
d. All pages Advertiser collects User information by or through any Advertiser Links or the Advertiser Store, contain a prominent link to Advertiser’s privacy policy, which shall be legally compliant with all applicable laws and regulations including data collection and privacy.
e. Advertiser shall comply in all respects with all applicable laws, rules, regulations, and orders of any governmental authority including its duties, obligations, and business practices and shall obtain any permits or licenses necessary for its operations.
5. CONTENT STANDARDS.
Advertiser Content may not: contain any material that is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable; promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age; infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person; violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any liability under applicable laws or regulations or that otherwise may be in conflict with these Terms. Advertiser Content shall comply with all federal and state laws and regulations pertaining to Advertiser’s business and the advertising, marketing and promotion thereof.
6. OWNERSHIP/LICENSE
a. Except as may be provided in these Terms, Advertiser is and shall remain the sole and exclusive owner of all right, title, and interest in and to all Advertiser Content, including without limitation any and all trademarks, domain names, and copyrights.
b. Advertiser hereby grants Niche and its affiliates, licensees and assignees, a limited, non-exclusive, royalty- free, worldwide license during the Term to use the Advertiser Content on the Platform and solely for the purposes set forth in these Terms. Such grant of rights shall include the right to use Advertiser’s tradenames and/or trademarks and/or other necessary identifiers whether graphic, visual or otherwise with regard to the Advertiser Content and the use of the Platform hereunder.
7. DISCLAIMERS.
EXCEPT AS OTHERWISE PROVIDED HEREIN, NICHE PROVIDES THE PLATFORM “AS IS” AND “AS AVAILABLE”. OTHER THAN AS EXPRESSLY PROVIDED HEREIN, NICHE MAKES NO GUARANTEE, REPRESENTATION OR WARRANTY REGARDING THE PLATFORM (INCLUDING BUT NOT LIMITED TO THE AMOUNT, ACCURACY, TIMING, CREDIT WORTHINESS, OR QUALITY OF THE TRAFFIC, IMPRESSIONS OR CLICKS), RELATED INFORMATION, THE SERVICES, AND/OR ANY OTHER INFORMATION PROVIDED UNDER THIS AGREEMENT. TO THE EXTENT PERMITTED BY LAW, NICHE DISCLAIMS ALL WARRANTIES, EXPRESS, STATUTORY OR IMPLIED, INCLUDING WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, NICHE DOES NOT WARRANT THAT THE SERVICES WILL BE ERROR-FREE, DEFECTS WILL BE CORRECTED, THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE SERVICES WILL MAINTAIN A CERTAIN UPTIME, RESPONSE TIME OR AVAILABILITY. THESE DISCLAIMERS ARE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
8. ADVERTISEMENT FEES.
a. In consideration of the services provided by Niche and the access to the Platform, Advertiser shall pay Niche a monthly Advertising Fee based on the per-click and/or per-view Advertising Rates for the Advertising Type(s) selected by the Advertiser as published on the Advertising Order Form, and as confirmed on the Advertiser Approval Notice. Niche reserves the right to modify, alter and change the Advertising Rates with reasonable notice to Advertiser.
b. Advertising Fees shall be calculated for each month based on the per-click and/or per-view Advertising Rates for the Advertising Type(s) selected by the Advertiser as published on the Advertising Order Form, and as confirmed on the Advertiser Approval Notice.
c. During the first month of this Agreement, the Advertiser shall not incur any Advertising Fees. Commencing on the second month of this Agreement, the Advertiser shall pay Niche the Advertising Fees as set forth herein.
d. Advertising Fees shall be paid to Niche within thirty (30) days of the Report (see below) containing the applicable invoice. Late payments will incur a 1% interest charge. Advertising Fees received over seven (7) days late will incur late fees. A 1% interest fee on the outstanding balance will be charged for each month that the Advertising Fee remains unpaid. Interest shall be calculated starting from the 8th day after the due date until the full Advertising Fee is received. Niche reserves the right to enforce partial or full suspension of Advertiser’s access to the Platform and any functionalities thereof, including Reports.
9. REPORTS AND BILLING.
a. Niche shall provide monthly activity reports (“Reports”) to the Advertiser within 10 days of the last business day of the preceding month. Reports shall include the Advertiser Fee calculation based on the click and view activity for the Advertising for the previous month and an invoice for the applicable Advertising Fee.
10. INDEMNIFICATION.
Advertiser will indemnify, defend and hold harmless Niche, its affiliates, officers, directors, employees, contractors, licensors, licensees, agents, and partners (“Niche Covered Entities”) against any third-party claims or liabilities (including reasonable attorneys’ fees) arising out of or related to (a) the Advertiser Store, Advertiser Content, or Advertiser’s breach of its representations and warranties and other obligations hereunder; (b) Advertiser’s violation of any and all applicable laws, Advertiser’s negligence or willful misconduct; and (c) Advertiser’s use of the Reports.
11. LIMITATION OF LIABIITY.
NO LIABILITY FOR CONSEQUENTIAL OR INDIRECT DAMAGES. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF USE, REVENUE OR PROFIT, BUSINESS INTERRUPTION, AND LOSS OF INFORMATION), WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12. CONFIDENTIALITY.
You agree not to disclose our confidential and proprietary information (“Confidential Information”) including without limitation: any software, technology, programming, technical specifications, materials, guidelines and documentation you learn, develop or obtain during the Term about the Platform; click-through rates or other statistics provided to you in Reports or otherwise; any other information designated in writing by us as “confidential” or any designation to the same effect
13. MISCELLANEOUS
a. Assignment. Advertiser may not assign or otherwise transfer any of its rights or obligations under this Agreement without the prior, written consent of Niche. Niche may freely assign any of its rights or obligations hereunder including in connection with a change of control transaction (whether by merger, consolidation, sale of equity interests, sale of all or substantially all assets, or otherwise). Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns.
b. Independent Contractors. The parties are independent contractors. Neither Party shall be deemed to be an employee, agent, partner, joint venturer, or legal representative of the other for any purpose, and neither shall have any right, power, or authority to create any obligation or responsibility on behalf of the other.
c. Waiver. No failure or delay by either party in exercising any right or remedy under this Agreement shall operate or be deemed as a waiver of any such right or remedy.
d. Governing Law/Forum Selection. This Agreement shall be governed by the laws of the Commonwealth of Virginia, without regard to the conflicts of law rules of such state. Any dispute that arises under or relates to this Agreement (whether in contract, tort or both) commenced by either party shall be resolved in state or federal court in the Commonwealth of Virginia.
e. Severability. If any provision of this Agreement is found invalid, illegal or unenforceable by a court of competent jurisdiction, that provision shall be amended to achieve as nearly as possible the original intentions of the parties, and the remainder of this Agreement shall remain in full force and effect.
f. Complete Understanding. This Agreement, including any Schedules, applicable policies (including the Privacy Policy found on the Platform) constitutes the final and complete agreement between the parties regarding the subject matter hereof, and supersedes any prior or contemporaneous communications, representations or agreements between the parties, whether oral or written.
