1. Use of Capitalized Terms.
The term “Client” used herein refers to the client whose name is listed on the cover page of the CompareNetworks, Inc. Services Contract. “Company” refers to CompareNetworks, Inc., a Delaware corporation. The term “Agreement” refers to the Services Contract between Company and Client which has incorporated these Standard Terms and Conditions. The term “Services” refers to the products and services to be provided by Company to Client under the Agreement.
2. Intellectual Property.
Both parties recognize that each owns significant intellectual property rights. The parties do not, by their execution of the Agreement or their activities in furtherance of any initiative contemplated thereby, intend to confer any rights of ownership or use or license of any kind in the intellectual property owned by either party or any third party prior to the date of the Agreement, other than such rights to use as are specifically provided for hereunder.
Client hereby grants to Company the non-exclusive, perpetual, royalty-free, sublicensable (through multiple tiers) right and license, worldwide, to (i) organize, reproduce, display and otherwise use and exercise all copyright, trademark, moral or “artists” rights, publicity, and database rights in the information, material or content provided in any form to Company including, without limitation, graphics, logos, slogans, trademarks, trade names and services marks (the “Client Content”) in any media known now or discovered in the future, including without limitation on any Company website, including online product directory services that provide product comparisons and related information, as co-branded, co-marketed and/or private labeled, whether under Company branding and domains or otherwise (alone or in combination with other hyperlinks and works) (the “Company Sites”); (ii) reproduce, transmit, publicly display and/or distribute Client Content as part of the Company Sites or as a part of a distributed network; (iii) develop and operate links on the Company Sites that permit end users to access the Client’s website or other locale through which Client features, markets or sells products and/or services (“Client’s Site”); and (iv) use, reproduce, organize and publicly display the Client Content in connection with the Services. This license is irrevocable during the term of the Agreement and any subsequent or successor agreement between Client and the Company. Client may revoke the right and license after the expiration of all agreements with Company solely by notifying Company in writing. Nothing herein shall limit Company’s right to use data and information (including Client Content) that is in the public domain. As between the Client and Company, the Client shall retain unrestricted rights with respect to any and all of the work product derived from use of the Client Content, for use in any and all media now existing or hereafter created, subject to all third party rights, restrictions, and limitations.
3. Representation and Covenants of Client.
Client represents and covenants to Company that: (i) Client has all necessary rights and interests in and to the Client Content; (ii) there are no consents or approvals necessary for Client to enter into this Agreement; (iii) neither the Client Content, the products and/or services offered by Client, nor the Client’s use of any data or information relating to any Internet end-user violate or will violate the privacy statement of Company or any state or federal regulation, rule, statute or law; (iv) all Client Content shall be accurate; (v) Client shall be responsible for offering and selling its products and services featured on the Company Sites, including without limitation, order taking and fulfillment, shipping, transaction processing, invoicing, product returns or replacement, customer service, and payment of any taxes and charges; (vi) Client is duly organized, validly existing and in good standing in the jurisdiction of its formation; (vii) Client is duly qualified and licensed to conduct its business, and has full power and authority to enter into, and perform under, the Agreement; (viii) Client’s performance hereunder, delivery to Company of the Client Content and Company’s use of the same as permitted under the Agreement will not violate any agreement or the rights of any third party; (ix) to the extent that pharmaceuticals, drugs, health products or services, medical advice and/or medical devices are offered, sold or promoted on Client’s Site, Client is a licensed health care provider or is otherwise fully authorized to advise, prescribe, distribute or otherwise deal in such products and services in the jurisdictions in which they are offered or sold; and (x) the Client Content shall not contain matter that is libelous, obscene, objectionable or illegal.
4. Representations and Warranties of Company.
Company represents and warrants to Client that it has the full right, power and authority to enter into and to perform its obligations under the Agreement. 5. Access and Site Placement. The Company Sites contain or may contain robot exclusion headers and Client agrees that it will not use any device, software or routing to bypass Company’s robot exclusion headers, or to interfere or attempt to interfere with the proper working of the Company Sites. Without limitation of the foregoing, Client agrees that it will not take any action that imposes an unreasonable or disproportionately large load on Company’s infrastructure (as determined by Company in its sole discretion) nor will Client use or engage any third party to use any spider, robot, crawl, or other automatic technology on the Company Sites to access, store information, search, or monitor any portion of the Company Sites. Company specifically disclaims any warranty regarding the rank, location and prominence of Client Content anywhere on the Company Sites or any third party sites such as search engines. Company reserves the right to determine whether and where the Client Content will be displayed in response to any given search, and Company does not guarantee any specific placement on the Company Sites. Company reserves the right to remove Client Content at any time for any reason. Company also reserves the right, in its sole discretion, to suspend or cease the promotion of Client’s Site at any time, for any reason.
6. Email Blasts, Display Ads and E-Newsletters; Unused Media.
- Additional terms, conditions, and restrictions will be provided by Company in the form of a specification document for each media type purchased.
- Email blasts (“eBlasts”) and e-newsletter (“eNewsletter”) placements can only be cancelled or rescheduled up to 15 business days prior to the deployment date without incurring a re-deployment fee. Cancellations or reschedules less than 15 business days will be assessed a fee of up to 50% of the original price.
- Email Blast text copy and creative materials must be provided in email-compatible HTML 4.0 format. Images for Email Blasts must be provided as files in appropriate web formats. Email Blast HTML code provided must be ready to use; Client will incur creative services fees if Company is required to make changes to the HTML code.
- If Client is unable to provide ready-to-use HTML code for an Email Blast, Client may choose a pre-compiled template provided by Company. If Client does not wish to use a pre-compiled template and requires Company to generate Email Blast HTML code, Company may charge additional fees for creative services.
- All media, text copy, HTML, and creative materials for Email Blasts and e-newsletters with specific deployment deadlines must be received no later than 5 business days before the scheduled deployment date. Failure to deliver these materials prior to 5 business days before deployment date may result in rescheduling or cancellation of media, and incur cancellation or rescheduling fees.
- Client may request up to three revisions prior to approval and deployment of any Email Blast. No revisions may be requested less than one business day of the scheduled deployment. Any revision that requires Company to edit images, create new text copy, or create new HTML code may incur creative services fees.
- If, upon termination of the Agreement, any portion of the media contracted by Client remains unfulfilled as a result of Client’s failure to provide assets for media placements, approve deployments, failing to respond to Company’s requests to allow it to fulfill Company’s obligation or any other breach of the Agreement by Client, Company may invoice Client for unfulfilled amounts which invoice must be paid by Client within 15 days of invoice.
7. Product Listings.
- Additional terms, conditions, and restrictions will be provided by Company in the form of a Product Listing Guideline document
- Unless otherwise specified, Product Listings provided by Client will be uploaded and visible on the Company website within 4 weeks of the start of the contract, provided that Client has supplied Company with a product data file within 2 weeks of the start of the contact, meeting the guidelines specified in the Product Listing Guideline document.
- Invoicing for Product Listings will occur monthly starting 4 weeks after the contract start date, regardless of whether the product data file was provided by Client within 2 weeks of the start of the contract.
8. Video and Creative Production Review Provisions.
Product Brochure Video: final video will be 2-3 minutes in length; cost includes script development, professional voiceover, video editing, and motion graphics.
Tradeshow Video: final video will be 2-4 minutes in length; cost includes production coordination, video editing, and motion graphics. On-Demand Webinar: final video will be up to 40 minutes; cost includes audio and/or video recording and editing, custom-branded webinar interface with interactive chapters and customizable buttons. Poster Video: final video will be 2-10 minutes in length; cost includes production coordination, video editing, custom-branded webinar interface with interactive chapters.
Customer Profile/Testimonial Video: final video will be 2-5 minutes in length; cost includes production coordination, script development, professional voiceover, video editing, and motion graphics. Custom Video: as defined in the Agreement.
Client is responsible for time and materials incurred by the Company if the project is cancelled once the project has been started.
If the Client is purchasing any video and creative production services under the Agreement, Client shall be entitled to up to three rounds of review and changes to each video(s) and production without additional fees, as long as the changes conform to the originally agreed upon scope, script and storyboards. An unlimited number of changes are permitted within each round as long as the changes conform to the originally agreed upon scope, script and storyboards. A fee of $150 per hour will be automatically charged for additional work beyond three rounds of review and changes. Additional fees may be assessed for further changes, depending on the extent of the requested changes and their deviation from the originally agreed upon scope, script and storyboards. Once the video project starts, with “start” defined as the initial phone call between Company and Client to discuss direction and scope, the Client has a total of 30 calendar days, and up to 3 rounds of review, to finalize the script and storyboard and to provide assets needed for video production. Upon receiving the first, and all subsequent drafts of the video, the Client shall be provided with a maximum of 10 business days to provide feedback. The video and production services will be considered complete, and the Client invoiced for the full amount under the Agreement, if the Client does not provide feedback within 30 calendar days of receiving the first or any subsequent draft of the video.
9. Term; Termination for Convenience.
This Agreement shall continue until the expiration date specified on the order form or insertion order. Either party may terminate this Agreement upon 90 days’ prior written notice to the other party. In the event of a termination by Client, Company has the right to retain any amounts previously paid to Company by Client. If Company terminates the Agreement, Company will refund Client any amounts paid for unfulfilled media placements.
10. Mutual Indemnification.
Each party shall indemnify and hold the other party harmless, including without limitation, its officers, directors, employees, shareholders and agents from and against any and all loss, liability, damage or expenses (including reasonable attorneys’ fees and expenses) arising out of a claim involving a third party (together the “Claims”) that either party may suffer as a result of (i) a breach of any representation or warranty of the Indemnifying Party (defined below) under this Agreement; (ii) any claim of negligence, property damage, personal injury or death arising from or related to the acts of the Indemnifying Party connected with the Agreement. Each party (the “Notifying Party”) shall promptly notify the other party (the “Indemnifying Party”) of the existence of any action giving rise to a claim for indemnification under this Section 8 and shall give the Indemnifying Party a reasonable opportunity to defend the same at its own expense and with its own counsel provided that the Notifying Party shall at all times have the right to participate in the defense at its own expense. If, within a reasonable time after receipt of notice of a Claim, the Indemnifying Party shall fail to undertake to so defend, the Notifying Party shall have the right, but not the obligation, to defend and to compromise or settle (exercising reasonable business judgment) the Claim for the account and at the risk and expense of the Indemnifying Party. Each party shall make available to the other, at the other’s expense, such information and assistance as the other shall reasonably request in connection with the defense of a Claim.
11. Limitations of Liability; Disclaimer of Warranties.
UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM ANY PROVISION OF THIS AGREEMENT. EXCEPT AS OTHERWISE PROVIDED BY APPLICABLE LAW, NO CLAIM, REGARDLESS OF FORM, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT MAY BE BROUGHT BY AN AGGRIEVED PARTY MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ARISEN.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, COMPANY MAKES NO OTHER WARRANTIES HEREUNDER AND EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL COMPANY’S TOTAL LIABILITY EXCEED THE AMOUNT PAID BY CLIENT TO COMPANY UNDER THIS AGREEMENT.
12. Confidentiality; Nondisclosure.
“Confidential Information” means all information, including without limitation data, technology, samples and specimens relating to a party to the Agreement and its products, product concepts, technologies, businesses, financial, clinical or regulatory affairs, manufacturing processes and procedures, pricing information, business processes, or those of any third party from whom a party receives information on a confidential basis, whether written, graphic or oral, furnished to one party (the “Receiving Party”) by or on behalf of the other party (the “Disclosing Party”), either directly or indirectly, or obtained or observed by the Receiving Party while providing Services, and the Services to be provided, with the exception only of the following: (i) information that is now in the public domain or subsequently enters the public domain without fault on the part of the Receiving Party; (ii) information that is presently known by the Receiving Party from Receiving Party’s own sources as evidenced by Receiving Party’s prior written records; and (iii) information that Receiving Party receives from a third party not under any obligation to keep such information confidential. Any combination of features or disclosures shall not be deemed to fall within the foregoing exclusions merely because certain individual features are published or available to the general public or in the rightful possession of the Receiving Party unless the combination as a whole falls within any of the above exceptions.
Except as required in performing the Services, the Receiving Party agrees not to disclose or use at any time or for any purpose, either during or subsequent to the term of this Agreement, any Confidential Information, without the prior written consent of the Disclosing Party, to be given or withheld in Disclosing Party’s absolute discretion. Receiving Party shall take all necessary and reasonable precautions to prevent the disclosure of Confidential Information to any unauthorized third parties. Notwithstanding the foregoing, Confidential Information may be disclosed to the extent required by applicable laws or regulations or as ordered by a court or other regulatory body having competent jurisdiction provided that Receiving Party uses its best efforts to limit the disclosure and maintain confidentiality to the extent possible and provides reasonable prior written notice of such disclosure to Disclosing Party. The provisions of this Section 10 shall survive the expiration or termination of the Agreement for any reason, including the expiration of the term.
13. Force Majeure; Performance Excused.
Except as otherwise herein provided, neither party shall be liable or deemed in default for failure to perform any duty or obligation that such party may have under this Agreement where such failure has been occasioned by any act of God, fire, strike, inevitable accidents, war, or any other cause outside the reasonable control of that party and occurring without its fault or negligence. The party whose performance has been so interrupted shall give the other party notice of the interruption and cause thereof, and shall use every reasonable means to resume full performance of this Agreement as soon as possible. 14. Choice of Law. This Agreement shall be construed and controlled by the laws of the State of California. Any dispute arising from this Agreement, including, without limitation, a breach of this Agreement, shall be governed by the laws of the State of California, without regard to its conflict of laws principles.
15. Adjudication of Disputes. Any controversy or claim arising out of or relating to the Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Such arbitration shall be conducted before a single arbitrator in the County of San Mateo, State of California. The foregoing shall not apply to any claims by Company against Client for nonpayment of any sums under the Agreement. In these cases, Company shall have the option, in its sole discretion, to submit such claims to arbitration or to pursue civil remedies in the courts located in the County of San Mateo, State of California (irrespective of the existence of other disputes between the parties), and Client agrees irrevocably to submit to the jurisdiction of such courts for such purpose.
The Agreement, together with these Standard Terms and Conditions constitute the entire agreement between the parties with respect to the subject matter contained herein and therein and supersede all previous and contemporaneous agreements, proposals and communications, written or oral, between Client and Company with respect to such subject matter.
If any provision of the Agreement is held or made invalid or unenforceable for any reason, such invalidity shall not affect the remainder of the Agreement, and the invalid or unenforceable provisions shall be replaced by a mutually acceptable provision, which being valid, legal and enforceable comes closest to the original intentions of the parties hereto and has like economic effect.
Client and Company may communicate in the ordinary course of their business via email and Client shall be deemed to have received any notice posted in the appropriate section of the Company Sites. Notwithstanding the foregoing, any notice particular to the specific terms the Agreement (and not these Standard Terms and Conditions) shall be considered effective one day after delivery by email with confirmation of receipt by the addressee, three days after deposit in any United States mail box, by registered or certified mail, postage prepaid when addressed to the relevant Client’s or the Company’s last known address, or the date of delivery if delivered in person.
ANY AND ALL AGREEMENTS SHALL BE GOVERNED SOLELY BY THESE STANDARD TERMS AND CONDITIONS CONTAINED HEREIN. THESE STANDARD TERMS AND CONDITIONS SHALL PREVAIL REGARDLESS OF ANY PREPRINTED, CONFLICTING, DIFFERENT OR ADDITIONAL TERMS CONTAINED IN ANY ORDER SUBMITTED TO COMPANY BY CLIENT. FURTHERMORE, COMPANY HEREBY OBJECTS TO ANY AND ALL PREPRINTED, DIFFERENT, CONFLICTING OR ADDITIONAL TERMS ON ANY ORDER SUBMITTED TO COMPANY BY CLIENT AND CLIENT ACKNOWLEDGES RECEIPT OF THE FOREGOING OBJECTION FOR ALL PURPOSES. COMPANY MAY, FROM TIME TO TIME, ALTER, AMEND, OR ADD TO THESE STANDARD TERMS AND CONDITIONS. WHEN IT DOES, COMPANY MAY PROVIDE NOTICE TO CLIENT OF SUCH CHANGES VIA ITS CORPORATE WEBSITE (https://corp.comparenetworks.com/tsandcs/), AND/OR BY SUCH OTHER MEANS OF DIRECT NOTIFICATION TO CLIENT AS COMPANY MAY DETERMINE. AFTER RECEIVING SUCH NOTICE(S), CLIENT’S CONTINUED RECEIPT OF SERVICES WILL SERVE AS CONFIRMATION OF ITS ACCEPTANCES OF COMPANY’S TERMS AND CONDITIONS.