Terms of Service
Last updated November 2019
These terms of service (“Terms of Service”) govern the relationship between Content Licensor and Publisher as set forth in the applicable Content License Agreement (“Content License Agreement”) between Content Licensor and Publisher. All capitalized terms not defined in this Terms of Service shall have the definitions set forth in the Content License Agreement between the Parties. Publisher and Content Licensor are referred to herein collectively as the “Parties” and each individually as a “Party.”
1. Use of Licensed Content. Content Licensor shall create Licensed Content to be published on Publisher’s content management system on the Publisher Websites.
a. The receiving Party acknowledges the confidential nature of the disclosing Party’s Confidential Information and agrees it will not disclose the disclosing Party’s Confidential Information to any other person, or use any Confidential Information for any purpose other than to fulfill its obligations or exercise its rights under this Agreement, in each case without the prior written consent of the disclosing Party. Each Party will be deemed to have fulfilled its confidentiality obligations hereunder if it affords the other Party’s Confidential Information the same degree of care as it affords its own sensitive business information but in no event less than a reasonable degree of care. The Parties’ obligations concerning Confidential Information shall continue for three (3) years from the date of each disclosure; provided, the obligations regarding Confidential Information which constitutes a trade secret shall survive for so long as such Confidential Information constitutes a trade secret.
b. Notwithstanding the foregoing, a receiving Party may disclose Confidential Information (i) on a need-to-know basis to its affiliates and legal and business advisors who are under an obligation of confidence; or (ii) pursuant to any statute, regulation, order, subpoena or document discovery request by a court of competent jurisdiction, provided that, unless prohibited by applicable law, prior written notice of such disclosure is furnished to the disclosing Party as soon as practicable in order to afford the disclosing Party an opportunity to seek, at its own expense, a protective order. If the disclosing Party is unable to obtain or does not seek a protective order and the receiving Party is legally compelled to disclose such information, disclosure of such information may be made without liability.
c. Upon any termination of this Agreement, each Party will return to the other or destroy, at the other Party’s instruction, all Confidential Information of the other Party.
d. Each Party acknowledges that any violation of the provisions of this Section by the receiving Party may cause the disclosing Party immediate and irreparable damage for which the disclosing Party cannot be adequately compensated by monetary damages. Therefore, in the event of any such breach, the disclosing Party shall be entitled to seek preliminary or other injunctive relief, an order for specific performance, and any other equitable relief that a court may determine to be appropriate, and the disclosing Party shall not be required to post a bond or any other form of surety upon obtaining such equitable relief. The Parties agree that such equitable relief will be in addition to any damages or other remedies provided by law and otherwise available to the disclosing Party by reason of the receiving Party’s breach.
3. Ownership/Intellectual Property. Except for the license rights expressly granted hereunder, each Party owns and will retain all right, title and interest in and to its names, trademarks, service marks, logos and other branding elements, proprietary features and proprietary technology, trade secrets, patents, copyrights, trademarks, and other proprietary rights of any type under the laws of any governmental authority, domestic or foreign, including, without limitation, rights in and to all applications and registrations relating to any of the foregoing and including, without limitation, any such rights in and to any information or content contributed by such Party to the other Party. As between the Parties, any information and content contributed to the other Party will at all times be and remain the sole and exclusive property of the contributing Party, except for the license rights granted hereunder. Except as specifically permitted herein, neither Party may copy or make any use of the other Party’s content, or any variations or derivatives thereof, for any purpose, without the other Party’s prior written approval.
4. Term; Termination; License Grant.
a. Content Licensor shall have the right to describe the relationship between the Parties and use Publisher’s marks on its websites and in other marketing or promotional material.
b. This Agreement shall commence as of the Effective Date until terminated as provided herein (the “Term”). In addition to the termination rights set forth in the Content License Agreement, either party may cancel the Agreement for convenience by providing thirty (30) days’ written notice, which termination shall be effective at the end of the Content Earn Out Period. Either party may terminate the Agreement for material breach of this Agreement, which breach is not cured within forty-five (45) days of receiving written notice thereof, or which breach is not capable of being cured within such forty-five (45) day period. In addition, this Agreement may be terminated at any time by either Party, effective immediately upon written notice, if the other Party: (i) becomes insolvent; (ii) files a petition in bankruptcy; (iii) makes an assignment for the benefit of its creditors or (iv) liquidates, dissolves, or ceases operations (other than as a result of any merger or consolidation with or into, or sale or transfer otherwise of substantially all of its assets to another entity which assumes a Party’s obligations under this Agreement).
c. The provisions in Sections 2-4 and 7-14 (applicable portions thereof that would naturally survive) will survive any termination of this Agreement. Upon termination of this Agreement, the Parties will permanently remove all Licensed Content from Publisher’s content management system, and Publisher shall not use the web URL on which the Licensed Content was published for any other content or article publication at any time after termination. In the event of a termination during the Pilot, Publisher shall promptly return the Initial Payment in full. In the event of a termination before the total Net Revenue earned by Publisher surpasses the Initial Payment, Publisher shall promptly pay to Content Licensor the difference between the Initial Payment and the Net Revenue paid to Publisher within 30 days of when such termination notice is given by either party. Any amounts due under this Section shall incur interest at a rate of 1.5% per month if they are more than ninety (90) days past due.
d. Publisher shall provide Content Licensor with access to Publisher’s Google Analytics, Google Search Console or other website analytics and tracking tools, content management system, web content management system, web server and related technology stack such that Content Licensor can publish the Licensed Content and update or create any page templates to host such Licensed Content and optimize for conversions in Content Licensor’s discretion.
e. Content Licensor hereby grants to Publisher and its affiliates a non-exclusive license to (i) publicly display, transmit, distribute, archive, store and otherwise use Licensed Content in order to make the Licensed Content viewable on Publisher Websites, and (ii) permit users of Publisher Websites to access, view, and display the Licensed Content for personal use, in each case only as permitted by the terms of this Agreement. Content Licensor retains all right, title and interest in and to the Licensed Content created or published pursuant to this Agreement. Publisher agrees and acknowledges that it obtains no ownership interest in or rights to the Licensed Content under this Agreement. Publisher shall not (and shall not permit others to), directly or indirectly, during or after the Term: (1) reverse engineer, disassemble, replicate, copy or duplicate the Licensed Content, including, without limitation, targeting the same or similar parent keywords with new pages, or copying, replicating or duplicating written page copy, landing page designs, page templates, images, infographics, photography, videos, reviews, testimonials and other content created by Content Licensor, (2) modify, translate or create derivative works based on the Licensed Content, (3) place “rel=canonicals” or “redirects” on any web URLs hosting the Licensed Content, (4) edit, delete or remove the Licensed Content without Content Licensor’s prior written consent, or (5) lease, distribute, sell, assign or otherwise transfer rights to the Licensed Content or publish any advertisements on the Licensed Content. Publisher will not delete or change data, credits, copyright information, or any legal notices included with or in any Licensed Content. The Parties acknowledge and agree that (A) Content Licensor reserves the right to edit or remove all Licensed Content from the Publisher Websites in its sole discretion, and (B) all investments and decisions to create or update the Licensed Content are in Content Licensor’s sole discretion.
5. Management of Licensed Content. In the event of technical problems, each Party will make commercially reasonable efforts to notify the other Party and to remedy any such problems in a timely manner. The Parties shall each bear their costs associated with any internal support necessary for integration or ongoing maintenance and troubleshooting.
6. Payment Terms.
a. Client shall at all times make available to Content Licensor its Google Analytics account to verify and confirm sitewide and Licensed Content traffic data to confirm the Net Revenue.
b. Content Licensor will deliver the Net Revenue to Publisher within forty-five (45) days of the end of the calendar month during which such Net Revenue was earned. The amounts to be paid by Content Licensor do not include any taxes. Content Licensor is not liable for any taxes in connection with or related to this Agreement, and all taxes related to the Net Revenue shall be the financial responsibility of Publisher.
7. Providers. Publisher acknowledges that in its performance of its services under the Agreement, Content Licensor may create Licensed Content that advertises certain goods and services of Providers. Content Licensor shall submit to Publisher from time to a time a list of such Providers via email or other written communication identifying such Providers. Content Licensor shall also give Publisher written notice via email when it delivers a written proposal to a new Provider. Publisher agrees that during the Term and for a period of one year following the termination of the Agreement, it will not, on behalf of itself or any Affiliates, (1) engage in any business activity with the Providers, or within the industry vertical of the Licensed Content, which competes with the Content Licensor or the Licensed Content, or (2) knowingly, directly or indirectly, contact, solicit or attempt to contact or solicit any Providers for the purposes of interfering with or encouraging them to terminate their relationship with Content Licensor. The obligations under this Section 7 are in addition to, and not intended to supersede, any other non-competition or non-solicitation obligation owed by Publisher to Content Licensor.
8. Representations and Warranties. Each Party represents and warrants to the other Party that: (i) such Party has the full corporate right, power and authority to enter into this Agreement and to perform the acts required of it hereunder; (ii) when executed and delivered by such Party, this Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms; and (iii) such Party shall comply with all applicable laws, rules and regulations in performing its obligations under this Agreement. EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE ACTIVITIES OR CONTENT CONTEMPLATED BY THIS AGREEMENT, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
a. Publisher will indemnify, defend, and hold harmless Content Licensor, and its respective officers, directors, Affiliates, employees, agents, successors and assigns from and against any and all Damages due to any claim arising from (i) any breach of any representation, warranty, covenant or obligation agreed to by Publisher in this Agreement; (ii) any actions arising from the misuse of Licensed Content by Publisher; and (iii) any content appearing on the Publisher Websites other than Licensed Content.
b. Content Licensor will indemnify, defend, and hold harmless Publisher and its Affiliates and its and their respective officers, directors, employees, agents, successors and assigns from and against any and all Damages due to any claim arising from any breach of any representation or warranty agreed to by Content Licensor in this Agreement.
c. Except as otherwise stated herein, all indemnities seeking indemnification pursuant to this Section will give prompt notice to the Party from whom indemnification is sought; provided, however, that failure to give prompt notice will not relieve the indemnifying Party of any liability hereunder (except to the extent the indemnifying Party has suffered actual material prejudice by such failure). The indemnifying Party and the indemnities will reasonably cooperate in the defense or prosecution of any third-party claims. An indemnifying Party will not settle any action without the written consent of the indemnified Party (which consent will not be unreasonably withheld or delayed).
10. Limitation of Liability. EXCEPT AS RELATED TO A PARTY’S INDEMNIFICATION, CONFIDENTIALITY OR OBLIGATIONS UNDER SECTIONS 4(C)-4(E), 7 AND 13 HEREUNDER OR WILLFUL BREACH OF THIS AGREEMENT, UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES WITH RESPECT TO THE SUBJECT MATTER HEREOF, INCLUDING LOST PROFITS, REGARDLESS OF WHETHER SUCH DAMAGES COULD HAVE BEEN FORESEEN OR PREVENTED BY EITHER PARTY. EXCEPT AS RELATED TO A PARTY’S INDEMNIFICATION, CONFIDENTIALITY OR OBLIGATIONS UNDER SECTIONS 4(C)-4(E), 7 AND 13 HEREUNDER OR WILLFUL BREACH OF THIS AGREEMENT, THE TOTAL AGGREGATE AMOUNT A PARTY WILL BE LIABLE TO THE OTHER PARTY SHALL NOT EXCEED THE TOTAL NET REVENUE EARNED DURING THE PRIOR TWELVE MONTHS OF THE TERM.
11. Notices. Except as otherwise provided herein, whenever any notice, request, consent, approval or other communication will be given by one Party to the other, such communication will be in writing and will be delivered by overnight courier or by registered or certified mail, return receipt requested, addressed set forth in the Agreement, with copies sent to persons designated by each Party in writing and, in the case of notices to Content Licensor, a copy of all notices to General Counsel at 1122 Oberlin Road, Raleigh, NC 26705. Notices will be effective upon actual receipt of, or refusal to accept, the notice by the Party to whom notice is provided. Either Party may from time to time, designate, in a writing referencing this Section a different mailing address or a different person to which all further notices or demands are thereafter to be addressed.
a. “Affiliate” shall mean (i) any natural person, partnership, corporation, association, or other legal entity directly or indirectly owning, controlling, or holding with power to vote 10% or more of the outstanding voting securities of a Party; (ii) any partnership, corporation, association, or other legal entity 10% or more of whose outstanding voting securities are directly or indirectly owned, controlled, or held with power to vote by a Party; (iii) any natural person, partnership, corporation, association, or other legal entity directly or indirectly controlling, controlled by, or under common control with, a Party; or (iv) any officer or director of a Party.
b. “Confidential Information” means any information regarding the terms of this Agreement (other than the fact of its existence or the name and address of each Party) and any information, in whatever form, regarding the business or operations of Content Licensor or Publisher that is the confidential and proprietary information of the disclosing Party and is not generally known to the public or to the recipient as of the date of disclosure, provided that “Confidential Information” will not include information which may be demonstrated by reasonable evidence: (i) at or prior to the time of disclosure by the disclosing Party was known to the receiving Party through lawful means without obligation of confidentiality; (ii) at or after the time of disclosure by the disclosing Party becomes generally available to the public through no act or omission on the receiving Party’s part in violation of an obligation of confidentiality; (iii) is developed by the receiving Party independent of any Confidential Information it receives from the disclosing Party; or (iv) the receiving Party receives from a third person who is free to make such disclosure without breach of any legal obligation.
c. “Content Earn Out Period” shall mean the later of the date that Content Licensor earns three-times the amount of the Investment Costs of the Licensed Content from the Providers or four years from the date that the written notice is received.
d. “Damages” shall mean all liabilities, damages, awards, settlements, losses, claims and expenses, including reasonable attorneys’ fees and costs of investigation.
e. “Investment Costs” shall be the cumulative list of itemized costs that Content Licensor maintains to create and maintain the Licensed Content and win the Provider relationships as calculated by Content Licensor.
f. “Providers” shall mean third-party companies featured in the Licensed Content. Content Licensor shall give written notice via email of the Providers, and Publisher shall have two (2) days to notify Content Licensor of any pre-existing relationship with such Provider. If Publisher does not provide notice of a pre-existing relationship, such Provider shall be included in the non-competition obligations in Section 7.
g. “Publisher Websites” shall mean websites owned or operated by Publisher in all media currently known or subsequently devised as set forth on the Content License Agreement, including mobile applications. The parties may add additional Publisher Websites to this Agreement via email.
a. The Parties acknowledge that Publisher may desire to sell the Publisher Websites in the future, and further acknowledge and agree that it is intended that this Agreement shall be binding upon any successor party who purchases any of the Publisher Websites. Publisher hereby covenants and agrees that it shall not enter into any third-party agreement that directly or indirectly discharges or changes its obligations to Content Licensor under this Agreement without Content Licensor’s prior written consent, including, for the avoidance of doubt, through a sale of the Publisher Websites whereby the successor party does not affirmatively assume and perform the rights and obligations of Publisher on the terms set forth herein (the “Obligation”).
b. Liquidated damages. In the event that Publisher enters into negotiations with a potential purchaser for the acquisition of the Publisher Websites, the Parties shall endeavor to discuss accommodations for this Agreement in good faith. In the event that the purchaser of the Publisher Websites does not assume this Agreement and the Parties have been unable to accommodate the Licensed Content on mutually agreeable terms, or Publisher otherwise breaches the Obligation, Publisher shall be liable to Content Licensor for four times (4x) the Investment Costs. Publisher shall immediately pay such fee to Content Licensor in cash within two (2) business days of Content Licensor providing notice thereof. In the event judicial determination or enforcement of this provision is required, Content Licensor shall be entitled to recover all legal and related professional fees and expenses.
14. Miscellaneous. Neither Party may assign or otherwise transfer any of its rights or delegate any of its duties under this Agreement without the prior written consent of the other Party. Notwithstanding anything to the contrary contained herein, Content Licensor may freely assign this Agreement to any entity controlling it, controlled by it, or under common control with it. This Agreement will be binding upon and will inure to the benefit of the Parties and their successors and permitted assigns, including, without limitation, successors through merger, consolidation, or sale of substantially all of a Party’s equity interests, assets, or the sale of any of the Publisher Websites and shall be binding upon such successor Party, and any reference to a Party will also be a reference to a successor or permitted assign. For the avoidance of doubt, the conversion of a Party to a different legal form or the merger of a Party with a newly-formed entity for the principal purpose of converting such Party to a different legal form shall not be deemed an assignment under this Agreement. This Agreement will be governed and construed in accordance with the laws of the State of North Carolina, without giving effect to conflicts of law principles thereof. The Parties hereby consent to the exclusive jurisdiction of any state or federal court located in Raleigh, North Carolina in any dispute related to or arising out of this Agreement. This Agreement may not be amended, modified or superseded, unless expressly agreed to in writing signed by both Parties. The headings in this Agreement are for reference only and shall not limit or control any term or provision of this agreement or the interpretation or construction thereof. No provision of this Agreement may be waived except by an instrument in writing executed by the Party against whom the waiver is to be effective. The failure of either Party at any time or times to require full performance of any provision hereof will in no manner affect the right of such Party at a later time to enforce the same. The Parties agree and acknowledge that the relationship of the Parties is that of an independent contractor. No joint venture, partnership, agency or fiduciary relationship exists between the Parties and the parties do not intend to create any such relationship by this Agreement. Neither Party is, nor will either Party hold itself out to be, vested with any power or right to bind the other Party or to act on behalf of the other Party as agent or otherwise. This Agreement and its exhibits are the complete and exclusive agreement between the Parties with respect to the subject matter hereof, superseding and replacing any and all prior agreements, communications, and understandings, both written and oral, regarding such subject matter. In the event of a conflict between this Terms of Service and the Content License Agreement, the Content License Agreement will prevail. This Agreement may be executed in any number of counterparts, each of which will be deemed to be an original as against any Party whose signature appears thereon, and all of which will together constitute one and the same instrument. This Agreement will become binding when one or more counterparts hereof, individually or taken together, will bear the signatures of all of the Parties reflected hereon as the signatories. A faxed or electronic signature will have the same legally binding effect as an original signature. If any provision or term of this Agreement not essential to the commercial purposes hereof is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remainder of this Agreement will not be affected.