Parkingservice.com DOMAIN MONETIZATION AGREEMENT
This Domain Monetization Agreement (“Agreement”) includes all other agreements, policies, and documents incorporated by reference herein.
EFFECTIVE DATE
7th day of Feburary 2008.
THE PARTIES
Danube International INC (“Parkingservice.com”) and the "Publisher". Each also referred to herein as a "Party" and collectively the "Parties."
RECITALS
1. Parkingservice.com provides various Internet-related services, including the domain name monetization services.
2. Publisher wishes to use Parkingservice.com’s domain name monetization services in association with domain names under the ownership or control of Publisher.
TERMS & CONDITIONS
1. DEFINITIONS
All capitalized terms herein shall take on the meaning attributed to them below:
1.1 “Advertisement” includes keywords, images, or other forms of advertisement or promotional icons or media (collectively “Ad Forms”) – whether or not they hyperlink to other Web pages of Upstream Partners or upstream partners upon a Click thereto – that reside on a Parking Page and/or any Web page that is hyperlinked from any of the Ad Forms and includes any Web page that is immediately directed or resolved from Internet traffic from a Domain to which the Services are applied.
1.2 “Additional Term” means the period commencing from the expiration of the Initial Term and ending at 12 a.m. of the 1-calendar-year anniversary date thereof.
1.3 “Affiliate” means any legal entity that owns, is owned by, or is under common ownership with a Party with ownership of the shares, interests or assets of such legal entity or Party, as applicable.
1.4 “Parkingservice.com Materials” include, without limitation, all text, images, illustrations, URLs, audio and multimedia files and/or text, technology, software, Web site data, source codes, digital files, customer lists, technical information, data, plans, user identifications, account numbers, encryption keys, digital certificates, account access and log-in information, passwords, and all other similar materials or information owned by or otherwise relating to Parkingservice.com or the Services (including the Monetization Technology).
1.5 “Parkingservice.com Technology” shall mean Parkingservice.com’s proprietary technology, including Parkingservice.com’s software tools, hardware designs, algorithms, software (in source and object code), user interface designs, architecture, document type additions, class libraries, objects and documentation (both printed and electronic), network designs, know-how, trade secrets and any related Intellectual Property throughout the world (including the Monetization Technology) and also including any Derivative Works, improvements, enhancements or extensions of Parkingservice.com Technology conceived, reduced to practice, or developed during the Term.
1.6 “Click” means the act of a bona fide natural person using the Internet (which excludes use of spiders, Web crawlers, any type of robot or other mechanical, artificial or automated means) clicking on an Advertisement and accessing the Web page hyperlinked to that Advertisement in a good faith and legitimate manner that is (a) not fraudulent, (b) not motivated or solicited by expectations of monetary or other gain, and (c) done in a manner that is legal or in accordance with good faith business practices and public policy, as determined by Parkingservice.com at its sole commercially reasonable discretion.
1.7 “Confidential Information” includes any and all information or data of a Party that is disclosed to the other Party, either directly or indirectly, whether in writing, orally, or by visual means, and which is designated (either in writing or orally) as confidential, proprietary, or the like. However, such designation shall not be necessary to deem information as Confidential Information if the nature of the information makes it generally considered confidential commercially, which information includes information that relates to (a) trade secrets or know-how, (b) finance or accounting, (c) technology, research, or development, (d) internal processes or procedures, (e) algorithms, digital data, or designs, (f) business, operations, or planning thereof, (g) sales or marketing strategies, (h) the terms of any agreement between the Parties, and the discussions, negotiations, or proposals related thereto, including this Agreement.
1.8 “Derivative Works” shall mean (i) any software, work product, improvement, modification, alteration, enhancement, new version, update, localization, upgrade, port, translation, design or documentation, in any medium, format or form whatsoever, that is derived in any manner, directly or indirectly, from the Services (including the Monetization Technology) or any part or aspect thereof, or that uses or incorporates the Services or any part or aspect thereof; (ii) all derivative works of the Services (including the Monetization Technology) as defined in the Copyright Law of the United States, Title 17 U.S.C. §101 et seq.; (iii) all materials and documentation (including Parkingservice.com Materials) related to the foregoing; and (iv) all Intellectual Property related to the foregoing.
1.9 “Domain” means a domain name (string of alphabetical and/or alphanumeric characters followed by a suffix indicating the applicable domain name extension and used as an Internet address to identify a computer on the Internet) that Publisher uses to use the Services or that Parkingservice.com applies all or any part of the Services to.
1.10 “Effective Date” means the date of this Agreement first stated above.
1.11 “End User” means any Internet user who visits or browses the Parking Page or any component thereof and may include, without limitation, Publisher Customer.
1.12 “Initial Term” means the period commencing from the Effective Date and ending at 12 a.m. of the 1-calendar-year anniversary date thereof.
1.13 “Intellectual Property” means all rights, title, interest and benefit of a Party in and to intellectual property of every nature, whether registered or unregistered, including, without limitation, all copyrights, patents, trademarks, certification marks and industrial designs, applications for any of the foregoing, trade names, brand names, business names, trade secrets, proprietary manufacturing information and know-how, instruction manuals, inventions, inventor’s notes, research data, blue prints, drawings and designs, formulae, calculations, processes, prototypes, source codes, digital files, technology and marketing rights, together with all rights under license agreements, sublicense agreements, strategic alliances, development agreements, technology transfer agreements and other agreements or instruments relating to any of the foregoing, that are owned by a Party hereto (and, in the case of Parkingservice.com, includes the Services, Monetization Technology, Derivative Works, Parkingservice.com Technology, and Parkingservice.com Materials).
1.14 “Invalid Activity” means any activity, at Parkingservice.com’s sole determination, that would not qualify for Revenue Share or would otherwise be subject to recouping of Revenue Share payments, including errors, fraud, invalid impressions, and Invalid Clicks.
1.15 “Invalid Click” means a click on an Advertisement that does not meet the definition of a Click hereunder or that does not otherwise comply with the terms of this Agreement.
1.16 “Monetization Account” means a unique account specific to Publisher that is set up with Parkingservice.com to organize and manage the Services, and the activities related thereto, as they pertain to Publisher.
1.17 “Monetization Technology” means Parkingservice.com’s proprietary software application and related technology that directs Internet traffic from a URL, that is based on a Domain, to a Parking Page designated by Parkingservice.com at its sole discretion, and allows parties (including Parkingservice.com and Publisher) to earn money consideration for Clicks to the Advertisements residing on the particular Parking Page.
1.18 “Net Revenue” means the money amount Parkingservice.com receives from an Upstream Partner, less Operational Costs, based on the number of Clicks on Advertisements associated with that Upstream Partner, after applicable adjustments have been made to account for variables including taxes and Invalid Clicks.
1.19 “Operational Costs” means any and all costs associated with the set up and maintenance of the Services.
1.20 “Parking Infrastructure” means the Parkingservice.com network system and infrastructure containing the Parking Pages and the Advertisements thereto.
1.21 “Parking Page” means the Web page(s) located on Parkingservice.com’s servers or Parking Infrastructure and that contains hypertexts (including keywords, advertisements, and images), search boxes, and/or other features as designated by Parkingservice.com.
1.22 “Publisher Customer” means any third party that orders, receives, or otherwise uses the products and/or services that are owned or licensed by Publisher (including the Services hereunder).
1.23 “Publisher TOU” means the paper or electronic agreement or terms of use that Publisher enters into with all Publisher Customers as a precondition to the provision or use of Publisher’s products and/or services.
1.24 “Referral Commission” means the money amount, as determined by Parkingservice.com at its sole discretion, that is payable from Parkingservice.com to Publisher for each third party that (a) Publisher refers to Parkingservice.com, (b) Parkingservice.com executes a contract for provision of the Services to such third party, and (c) Parkingservice.com receives money amounts from Clicks on the Advertisements resolving on the Parking Page(s) of such third party.
1.25 “Registrant” means the person (individual or corporate entity) that is recorded in the Whois as the owner of the particular Domain.
1.26 “Registrar” means an ICANN-accredited Domain registrar.
1.27 “Registry” means an entity accredited by ICANN to supervise specific generic top-level Domains (“gTLDs”) and to operate the domain name system for such gTLDs and/or, in cases of country code top-level Domains (ccTLDs), to act as an administrator of ccTLDs for a particular country and operate the domain name system for such country's specific Domain extension(s).
1.28 “Reporting Interface” means Parkingservice.com’s Web-based interface that allows viewing of information related to the Services and Publisher’s use thereof.
1.29 “Restricted URL” means any URL that Parkingservice.com has identified to Publisher as a URL for which Parkingservice.com shall not provide the Services or any URL where any one of the following applies:
1.29.1 Parkingservice.com does not have the right to use or to associate data with that URL.
1.29.2 Parkingservice.com does not have the right to reproduce or distribute any of the content available at that URL.
1.29.3 The URL infringes or potentially infringes the intellectual property rights of any third party.
1.29.4 The URL violates any applicable law, regulation, or rule.
1.29.5 The URL is subject to a court order for an injunction or restraining order.
1.29.6 The URL is libelous, defamatory, or obscene or contains material that is any of the foregoing.
1.29.7 The URL contains software, viruses, worms, or other code that is or may potentially be damaging or harmful to a Party’s computer system or stored information.
1.29.8 The URL is otherwise contrary to the intended use of the Services.
1.29.9 The URL is requested to be blocked by any Upstream Partner.
1.30 “Revenue Share” means the percentage of the Net Revenue, as determined by Parkingservice.com at its sole discretion, which Parkingservice.com shall provide to Publisher in exchange for posting Advertisements on the Parking Page resolving to Publisher’s Domain(s).
1.31 “Services” mean the services that Parkingservice.com provides to Publisher hereunder to implement and facilitate Publisher’s use of the Monetization Technology, including provision or use of the Parkingservice.com Materials, Parkingservice.com Technology, Parking Page, Monetization Account, Monetization Technology, Parking Infrastructure, Reporting Interface, Revenue Share, and technical/customer support.
1.32 “Term” means the Initial Term or any Additional Term of this Agreement as is applicable.
1.33 “Upstream Partner” means a third party that displays or otherwise provides Advertisements on or for the Parking Page and owns or controls the Web pages that are hyperlinked to the Advertisements.
1.34 “URL” means Uniform Resource Locator, which is the protocol for specifying addresses on the Internet.
1.35 “Whois” means the directory service or database over the Internet used for searching information related to a particular Domain that is required by ICANN to be compiled upon registration of a Domain.
2. TERM & RENEWAL
2.1 Term. This Agreement shall remain in effect for the duration of the Initial Term and any Additional Term as defined hereunder.
2.2 Renewal. Upon expiration of the Initial Term, this Agreement shall automatically renew for successive Additional Terms, unless either Party terminates this Agreement in accordance herewith.
3. THE SERVICES
3.1 Provision of Services. Parkingservice.com provides the Services subject to the terms of this Agreement and Publisher’s compliance thereof.
3.2 Amendment of Services. Parkingservice.com may, at its sole discretion, add to, modify, cancel, or remove any of the Services, whether in whole or in part. Continued use of the Services after any modification thereto shall be deemed to be Publisher’s agreement thereof. Publisher may request amendments to the Services by delivering to Parkingservice.com, in accordance with the notice provisions herein, written notice detailing the requested amendments. While Parkingservice.com shall endeavor to accommodate Publisher’s requests to their fullest extent, Publisher understands, acknowledges, and agrees that request for amendments to the Services may be rejected in whole or in part at Parkingservice.com’s sole discretion.
3.3 Servicing Other Parties. Publisher understands, acknowledges, and agrees that Parkingservice.com may provide the Services to other parties and that such provision of Services to third parties may compete with Publisher’s own use of the Services.
3.4 Exclusive Domains. Publisher understands, acknowledges, and agrees that Parkingservice.com shall be the exclusive provider of domain name monetization services and related technology in connection with the Domains hereunder (that of Publisher and Publisher Customers) for the duration that the Services are used for such Domains (including the Domains being parked on Parkingservice.com’s system). Publisher shall not, and shall ensure that all Publisher Customers shall not, subscribe for or use any services and/or technology of any other party that is the same as or similar to the Services or Monetization Technology in connection with the Domains. Publisher agrees that the exclusivity of Publisher and non-exclusivity of Parkingservice.com is fair and reasonable in the commercial circumstances of this Agreement and that Parkingservice.com would not have entered into this Agreement but for Publisher’s agreement thereto.
3.5 Objectionable Advertisements. Publisher understands, acknowledges, and agrees that the placement of Advertisements on Parking Pages is an automated process and, consequently, certain material may be placed on Parking Pages that is objectionable to Publisher (for example, and without limitation, trademarked, illegal, or adult material). Upon written request from Publisher, Parkingservice.com shall take reasonable measures to remove content that is objectionable to Publisher, but Parkingservice.com cannot guarantee that all such requests shall be met.
3.6 Reporting Interface. Parkingservice.com shall provide Publisher with access to the Reporting Interface to view records of Publisher’s activities hereunder.
3.7 Resale. Publisher shall not sub-license or resell the Services, or any part thereof, to any third party without the prior written consent of Parkingservice.com, which may be withheld at Parkingservice.com’s sole discretion.
3.8 Contact Information. Publisher shall provide Parkingservice.com with Publisher’s complete and accurate contact information, as requested by Parkingservice.com, and Publisher shall ensure that such information is updated and kept current, complete, and accurate at all times.
3.9 Right of Refusal. Parkingservice.com reserves the exclusive right to approve or reject Services to a particular Domain.
3.10 Suspension & Cancellation. Parkingservice.com reserves the exclusive right to suspend and/or cancel Publisher’s Monetization Account.
3.11 Discontinued Use. Publisher may discontinue the Services for a particular Domain by delivering to Parkingservice.com written notice of such discontinued use, which must include (i) the Monetization Account username and password, (ii) the Domain(s) for which the Services are to be discontinued, and (iii) a written statement requesting that the Services be discontinued for the listed Domain(s). Discontinued use of the Services for any or all of Publisher’s Domains shall not terminate this Agreement; however, termination of this Agreement shall cancel and close Publisher’s Monetization Account and all Services to the Domains thereunder. This Agreement may be terminated only in accordance with the termination provisions herein.
3.12 Marketing & Publicity. Publisher consents to Parkingservice.com’s use of Publisher’s name, brands, logos, and other trademarks in Parkingservice.com’s marketing materials and/or public disclosures (including press releases and Web sites). Publisher may use Parkingservice.com’s name, brands, logos, or other trademarks only with the prior written consent of Parkingservice.com.
4. REVENUE SHARE & PAYMENT
4.1 Revenue Share. The Revenue Share shall be determined by Parkingservice.com at its sole discretion or as otherwise agreed to by the Parties in a separate written instrument executed by the Parties. All payments of Revenue Share, whether payable or already paid, shall be subject to deductions based on Parkingservice.com’s assessment of variables such as, without limitation, errors, fraud, and Invalid Clicks.
4.2 Operational Costs. The Revenue Share shall be calculated after deducting Operational Costs, as determined at Parkingservice.com’s sole and absolute reasonable discretion, from the gross revenue received by Parkingservice.com from Upstream Partners.
4.3 Currency. Unless otherwise expressly stated herein, all money amounts referred to in this Agreement are in lawful money of the United States of America. Publisher shall solely bear the losses or gains from fluctuations in foreign exchange rates. Parkingservice.com shall be responsible for payment in the currency of the United States of America only.
4.4 Payments. Parkingservice.com shall make payments to Publisher of the Revenue Share for a particular calendar month approximately within 15 days after Parkingservice.com receives the Net Revenue from Upstream Partners for that month. For Revenue Share amounts in a particular month that do not reach at least $100 for wire transfer payments, such amount shall be rolled over to the following calendar month, and so forth, until the applicable minimum amount is reached and Parkingservice.com shall pay the Revenue Share to Publisher at that time. Publisher shall be responsible, and Parkingservice.com shall not be responsible, for all applicable transactional fees (including wire transfer fees), which amounts Parkingservice.com may deduct from any payment of the Revenue Share.
4.5 Recouping Payments. Parkingservice.com reserves the right to recoup any payment made hereunder based on Parkingservice.com’s assessment of variables such as, without limitation, errors, fraud, and other Invalid Activity. Parkingservice.com shall be the sole determiner of what constitutes Invalid Activity.
4.6 Taxes. Publisher understands, acknowledges, and agrees that all applicable sales, value-added, and other taxes shall be deducted from the Revenue Share, unless Publisher provides Parkingservice.com with satisfactory proof of exemption.
4.7 Records. Parkingservice.com may maintain records of all activities related to the Revenue Share. If there is any inconsistency or conflict between Parkingservice.com’s records and that of Publisher or any other party, then Parkingservice.com’s records shall be deemed the accurate and effective records at all times.
5. PUBLISHER’S OTHER OBLIGATIONS
5.1 Publisher TOU. If Publisher provides to Publisher Customers products or services of any kind that use or relate in any way to Parkingservice.com and/or the Services, or any part thereof, then Publisher shall require all such Publisher Customers, and make it a precondition of providing products and/or services to them, to agree to the Publisher TOU. Publisher shall ensure that the Publisher TOU shall at all times:
5.1.1 Be consistent with this Agreement and not conflict with this Agreement in any way;
5.1.2 Contain terms substantially similar to this Agreement; and
5.1.3 Contain at least the following terms:
5.1.3.1 Publisher Customer shall indemnify, defend, and hold harmless Publisher’s third party vendors, service providers, and contractors (including, without limitation, Parkingservice.com and each of its Affiliates, directors, officers, managers, employees, vendors, service providers, contractors, and agents) from and against any claim, action, loss, liability, damage, penalty, cost or expense (including reasonable legal fees for attorneys, witnesses, and defense) that any of them may suffer or incur as a direct or indirect result of Publisher Customer’s relationship with Publisher or the provision or use of Publisher’s products and/or services.
5.1.3.2 Publisher Customer shall agree that Publisher’s products and/or services (including those licensed from third party vendors, service providers, or contractors) shall be subject to modification, suspension, cancellation, termination, or other action.
5.2 Compliance. In using the Services, Publisher shall at all times act in good faith, in accordance with bona fide business practices, in compliance with the terms of this Agreement, and in compliance with all applicable laws, regulations, rules, and policies.
5.3 Illegal Content. Publisher shall consistently monitor the keywords on the Parking Pages associated with Publisher’s Domains and shall notify Parkingservice.com immediately if there is any illegal or objectionable content thereto.
5.4 Ownership of Domains. Publisher represents and warrants, and shall ensure at all times, that Publisher is at least one of the following in relation to the Domains:
5.4.1 The Registrant of the Domains.
5.4.2 Licensor of the Domains with authorization from the Registrant to use the Domains in the manner contemplated herein.
5.4.3 An agent of the Registrant authorized to enter into this Agreement and use the Domains in the manner contemplated herein.
Upon Parkingservice.com’s request, Publisher shall provide all documentation (as requested by Parkingservice.com at its sole discretion) evidencing the above rights in the Domains.
6. RESTRICTIONS
Without limiting any other term of this Agreement, breach of the following restrictions shall constitute material breach of this Agreement:
6.1 Conflicting Agreements. Publisher agrees that it shall not enter into any agreement or other arrangement that conflicts with this Agreement. If there is any conflict between this Agreement and any other agreement Publisher may be party to, then Publisher shall adhere to all the provisions of this Agreement despite the adherence constituting breach of such other agreement.
6.2 Illegal Activity & Abuse. Publisher shall not use the the Services in a manner that is, or potentially is, illegal, a legal or other risk to Parkingservice.com, generally objectionable in the Internet community, or degrading to the quality, goodwill, reputation, or provision of the Services.
6.3 Prohibited Traffic. Publisher shall not generate Internet traffic to the Domains or any of the hyperlinks on the Parking Pages by any of the following methods, as determined by Parkingservice.com at its sole reasonable discretion: fraud; computer program that runs automatically (including spiders, Web crawlers, and all types of bots); listings on newsgroups; toolbars; Publisher’s own pop-ups or banners; spam or other bulk electronic mailing; ICQ or other instant messenger programs or applications; Internet Relay Chat or other chat room systems, IFrames; zero pixel frames; Common Gateway Interface scripts; JavaScript; click farms or other similar methods; spy ware or other downloadable programs.
6.4 Restricted URLs. Publisher shall not deliver or generate Internet traffic from or to Restricted URLs. Publisher is solely responsible, and Parkingservice.com is not responsible, for ensuring that Internet traffic delivered or generated from or to URLs associated with the Domains are not Restricted URLs.
6.5 Solicitation. Publisher shall not entice, persuade, provide incentives, obligate, pressure, or otherwise attempt to cause any third party (including Publisher Customers and End Users) to visit the Domains or Parking Pages related thereto or click on any hypertext thereon.
6.6 Revenue Re-Distribution. Publisher shall not distribute or share any portion of the Revenue Share earned hereunder to any third party.
6.7 Other Revenue. Publisher and its customers shall not enter into any arrangement or contract under which any third party pays Publisher money or payment in kind for the Domains or Parking Pages or any Advertisement thereon.
6.8 Source Code. Publisher shall not, and shall not permit any third party to copy, use, analyze, reverse engineer, decompile, disassemble, translate, convert, or apply any procedure or process to the Services (including the Monetization Technology or other Parkingservice.com Technology) to ascertain, derive, and/or appropriate for any reason or purpose the source code or source listings for any aspect of the Services or any trade secret information or process contained therein.
6.9 Storing Data. Publisher shall not index, cache, or otherwise store data obtained from the Services (including the Advertisements).
6.10 Invalid Domains. Publisher shall not generate traffic to any Domain by forwarding Domains not registered in Publisher’s Account or otherwise in the Parking Infrastructure to Domains that are registered in Publisher’s Account or otherwise in the Parking Infrastructure.
6.11 Redirection. Publisher shall not redirect any End User away from the Parking Page.
6.12 Advertisements. Publisher shall use only the Advertisements that are provided by Parkingservice.com.
6.13 Modifications. Publisher shall not in any way modify any aspect of Parking Pages and/or Advertisements, including the presentation thereof. In no way shall Publisher display graphics or text in any form (including pop-up, pop-under, or exit windows) that block or otherwise inhibit the full and complete display to End Users of any aspect related to Parking Pages or Advertisements. Publisher shall use the Services (including Parking Pages and Advertisements) as is.
6.14 Revealing Revenue Share. Under no circumstances shall Publisher reveal to any third party any aspect of the Revenue Share between the Parties, in whole or in part, and the Revenue Share shall be considered Confidential Information as defined herein.
6.15 Other Traffic & Systems. Publisher shall not direct or re-direct any Internet traffic to any Domain to any provider or network system other than Parkingservice.com and its network system for the duration that the Services are used for such Domains (including the Domains being parked on Parkingservice.com’s system).
7. TERMINATION
7.1 Either Party. Either Party may terminate this Agreement under the following circumstances:
7.1.1 If a Party breaches this Agreement and such breach is not cured within 10 calendar days of the breaching Party receiving from the non-breaching Party written notice to cure such breach.
7.1.2 If a Party materially breaches this Agreement and such material breach is not cured within 5 calendar days of the breaching Party receiving from the non-breaching Party written notice to cure such material breach.
7.1.3 Upon written notice to the other Party of non-renewal not less than 30 calendar days prior to the expiration of the Term.
7.2 Insufficient Activity. Parkingservice.com may terminate this Agreement upon 3 calendar days’ prior written notice to Publisher if Publisher’s Monetization Account has no activity, is idle, or otherwise has insufficient Internet traffic generated to the Domains, as determined by Parkingservice.com at its sole reasonable discretion.
7.3 Immediate. Parkingservice.com may immediately suspend or terminate, at its sole determination, this Agreement under any of the following circumstances:
7.3.1 If Publisher:
(a) makes a general assignment for the benefit of Publisher’s creditors;
(b) appoints or has appointed a receiver, trustee in bankruptcy or similar officer to take charge of all or part of Publisher’s assets;
(c) files or has a petition filed against Publisher in any bankruptcy; or
(d) is adjudicated insolvent or bankrupt.
7.3.2 If, at the sole determination of Parkingservice.com, Publisher’s activities constitute those that are:
(a) illegal or potentially illegal;
(b) a legal or other risk to Parkingservice.com, its Affiliates, or any of their networks and systems;
(c) harmful to the Parking Infrastructure; or
(d) material abuses of the Monetization Technology or the Services.
7.3.3 If any Upstream Partner makes a request to Parkingservice.com to suspend or terminate Publisher and/or any specific Publisher Customer.
7.4 Effect. Upon expiration or termination of this Agreement, all of the following shall take effect:
7.4.1 Publisher shall immediately cease all activities related in any way to this Agreement.
7.4.2 Parkingservice.com may withhold payments of the Revenue Share payable until Parkingservice.com has concluded its adjustments of the Revenue Share for variables such as, without limitation, errors, fraud, invalid Clicks, and violations under the Agreement. Once the adjustments have been finalized to Parkingservice.com’s satisfaction, Parkingservice.com shall pay to Publisher the Revenue Share payable to Publisher.
7.4.3 The terms of this Agreement that by their nature continue beyond the expiration or termination of this Agreement shall continue to be effective (including the terms relating to payment of Fees, termination, ownership of Publisher Customers, Intellectual Property, limitation of liability, indemnity, Confidential Information, and governing law).
8. INTELLECTUAL PROPERTY
The Parties grant to each other the non-exclusive, royalty-free, worldwide, revocable license to use each other’s Intellectual Property solely in conjunction with Services and this Agreement, all strictly in accordance with the provisions of this Agreement. Neither Party shall, at any time during or after the expiration or termination of this Agreement, assert or claim any interest in, or do anything that may adversely affect the validity of, the Intellectual Property of the other Party (including registering or attempting to register any trademark of the other Party or a mark confusingly similar thereto). Parkingservice.com shall at all times retain sole and exclusive right, title and ownership in and to all of its Intellectual Property, including Derivative Works and Parkingservice.com Materials.
9. REPRESENTATIONS & WARRANTIES
The Parties represent and warrant to each other as follows:
9.1 Each Party has the full power and authority to execute, deliver, and perform under this Agreement.
9.2 This Agreement is valid, binding, and enforceable against each Party in accordance with the terms herein and no provision requiring each Party's performance hereunder is in conflict with such Party’s obligations under any other agreement or causes a Party to be in breach of any other agreement.
9.3 Each Party (as applicable) is duly organized, authorized and in good standing under the laws of the jurisdiction of its organization and is duly authorized to do business in all other jurisdictions in which such Party’s business makes such authorization necessary or required.
9.4 Each Party has the full and exclusive right to grant or otherwise permit the other Party to access and use its products, services, Intellectual Property, and Confidential Information.
10. LIMITATION OF LIABILITY
Except for Parkingservice.com’s indemnification obligations set out herein, Parkingservice.com shall not be liable to Publisher or to any other party for any consequential, indirect, special, incidental, reliance, exemplary, or punitive damages arising out of or relating to this Agreement and/or the Services, whether foreseeable or not, and whether based on breach of any express or implied warranty, breach of contract, misrepresentation, negligence, strict liability in tort, or other cause of action (including damages for loss of data, goodwill, reputation, business, money, or opportunity), even if Parkingservice.com has been advised of the possibility of such damages. Under no circumstances shall Parkingservice.com’s aggregate liability to Publisher or any other party arising out of or related to this Agreement and/or the Services exceed the aggregate amount of $50,000 regardless of the cause of action.
11. DISCLAIMER
11.1 No Warranties. Parkingservice.com makes no warranty of any kind, either express or implied, regarding the quality, accuracy, reliability, or validity of the applications, software, data, or information related to Parkingservice.com’s network, systems, Monetization Technology, or other Services. Parkingservice.com provides any and all aspects of the Services (including the Monetization Technology) “as is” and specifically disclaims all warranties of merchantability and fitness for a particular purpose. Publisher understands, acknowledges, and agrees that it shall use the Services, and all aspects thereof, at Publisher’s sole risk. Parkingservice.com further expressly disclaims any and all warranties as to the appropriateness, validity, non-infringement, or legality of the content related to or residing on the Domains, Parking Pages, Advertisements, and Web pages hyperlinked thereto.
11.2 Content. Publisher understands, acknowledges, and agrees that the content on all Domains and Parking Pages (including Advertisements) may be generated automatically and that Parkingservice.com is not responsible for any such content displayed on the Parking Pages or any Web page hyperlinked to the Advertisements. While Parkingservice.com takes measures to filter out certain types of content (including adult and illegal content), Publisher understands, acknowledges, and agrees that filters are not able to block out all such content and certain content intended to be filtered out may still appear on the Parking Page or other Web page hyperlinked to the Advertisements. It shall be Publisher’s sole responsibility, and not the responsibility of Parkingservice.com, to consistently monitor the Parking Page and to notify Parkingservice.com of any content that is illegal or that Publisher otherwise wants removed. Parkingservice.com does not guarantee that Parkingservice.com shall remove any content that Publisher requests to be removed, except for illegal or adult content that is within Parkingservice.com’s ability to directly remove.
11.3 Domains. Publisher understands, acknowledges, and agrees that Parkingservice.com is in no way responsible for the registration, renewal, validity, maintenance, or continued existence of any Domain – whether or not the Domain is registered through Parkingservice.com or any of its Affiliates. Publisher further understands, acknowledges, and agrees that the Internet Corporation for Assigned Names and Numbers (ICANN), any Registry, or any Registrar may disable, suspend, cancel, terminate, delete, or lock any of Publisher’s Domains and that Publisher shall hold harmless Parkingservice.com and all of the foregoing parties against any such action taken.
12. INDEMNIFICATION
Publisher shall indemnify, defend, and hold harmless Parkingservice.com (including, without limitation, Parkingservice.com’s Affiliates, directors, officers, managers, employees, contractors, and agents) from and against any claim, action, loss, liability, damage, penalty, cost or expense (including reasonable legal fees for attorneys, witnesses, and defense) that Parkingservice.com may suffer or incur as a result of: (i) any failure by Publisher to comply with the terms of this Agreement, (ii) any representation or warranty made by Publisher, its employee, contractor, or agent being false or misleading, (iii) any gross negligence or willful misconduct of Publisher, its employee, contractor, or agent, (iv) any alleged or actual violations by Publisher of any law, regulation or rule, and (v) any other act or omission of Publisher, its employee, contractor, or agent.
13. FORCE MAJEURE
Parkingservice.com shall not be liable for delays in its performance of this Agreement caused by circumstances beyond its reasonable control (“Force Majeure”), including acts of God, wars, riots, national disasters, earthquakes, strikes, fires, floods, shortages of labor or materials, labor disputes, transportation problems, accidents or governmental restrictions. Parkingservice.com shall make all reasonable efforts to reduce to a minimum and mitigate the effect of any Force Majeure.
14. CONFIDENTIALITY
Each Party (the “Recipient”) shall protect the confidentiality of any Confidential Information disclosed by the other Party (the “Discloser”) and shall not use such Confidential Information except in strict accordance with this Agreement. Confidential Information as defined herein does not include information that: (i) is generally available to the public through no fault of the Recipient and without breach of this Agreement; (ii) was already in the possession of the Recipient prior to disclosure by the Discloser and without any confidentiality obligation attached thereto, as evidenced by the Recipient’s records existing prior to the time of disclosure; (iii) was disclosed to the Recipient by a third party without a breach of such third party’s confidentiality obligations thereto; (iv) was independently developed by the Recipient without a breach of this Agreement or reliance on any Confidential Information; (v) is disclosed by the Recipient after obtaining the Discloser’s prior written approval; (vi) is required to be disclosed by law, provided that the Recipient promptly notifies the Discloser of the legal obligation and provides the Discloser with a reasonable opportunity to seek a protective court order, or the equivalent.
15. NOTICES
15.1 Method. Any notice or other communication between the Parties required or permitted under this Agreement shall be in writing and shall be delivered by hand, sent by first class mail (postage prepaid), sent by commercial courier, or transmitted by electronic mail or facsimile to a Party at the contact information first mentioned above in this Agreement, or to such other contact information as the applicable Party may notify to the other Party.
15.2 Effectiveness. Any notice or other communication sent shall: (a) if delivered by hand, be deemed to have been received on the date of delivery; (b) if sent by first class mail, be deemed to have been received on the third business day following the date of mailing; and (c) if sent by electronic mail or facsimile, be deemed to have been received on the date the sender transmitted the notice or other communication.
16. COMPLETE AGREEMENT
This Agreement constitutes the complete agreement between the Parties relating to the subject matter hereof and supersedes all prior and other understandings, representations, warranties, and agreements relating hereto, whether verbal, written, or otherwise.
17. NO THIRD PARTY BENEFICIARIES
This Agreement is for the sole benefit of the Parties, and does not create any rights on the part of any third party, and Publisher shall not commit any act or omission that would give rise to any such third party rights.
18. AMENDMENTS & WAIVER
Parkingservice.com may, at its sole discretion, make modifications to this Agreement, from time to time and as reasonably necessary. Such modifications shall take effect 5 calendar days from the date Parkingservice.com transmits a notice of such modifications via electronic mail to Publisher. Publisher acknowledges and agrees that Publisher’s sole remedy is to terminate this Agreement, without liability, in accordance herewith if Publisher does not agree to any of the modifications Parkingservice.com may make to this Agreement. Publisher may not amend this Agreement except by a written instrument executed by both the Parties. No waiver by a Party of a breach of any provision hereof shall take effect or be binding upon that Party unless expressly waived in writing, and such waiver shall extend and apply only to the particular breach so waived and shall not limit or affect the rights of the waiving Party in respect of any future breach or in respect of any breach of any other provision hereof.
19. RELATIONSHIP OF THE PARTIES
Nothing in this Agreement shall be construed as creating a relationship of employer and employee, principal and agent, partnership or joint venture between the Parties. Each Party shall be deemed an independent contractor at all times and shall have no right or authority to assume or create any obligation on behalf of the other Party except as may be expressly provided herein.
20. ASSIGNMENT
Publisher shall not assign or otherwise transfer its respective rights or obligations under this Agreement without the prior written consent of Parkingservice.com, which shall not be unreasonably withheld. Any assignment or transfer in violation of this section shall be null. This Agreement shall be binding and have effect upon the Parties and their respective successors and permitted assigns. Nothing herein, express or implied, is intended to confer upon any person, other than the Parties and their respective successors and permitted assigns, any rights, remedies, obligations or liabilities under this Agreement.
21. GOVERNING LAW & SEVERABILITY
This Agreement shall be governed and construed in accordance with the laws of the State of Illinois without giving effect to any rule of conflicts of law. The federal or state courts located in Chicago, Illinois shall have exclusive jurisdiction to hear any dispute under this Agreement. This Agreement shall not be governed by or construed in accordance with the United Nations Convention on Contracts for the International Sale of Goods. If any portion of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable for any reason, such illegality, invalidity or unenforceability shall not affect the validity of the remainder of this Agreement.
22. CONSTRUCTION & INTERPRETATION
22.1 References. All references in this Agreement to particular sections, titles, and Schedules shall be references to the sections, titles, and Schedules of this Agreement only unless specific reference is made otherwise. The words “herein”, “hereof”, “hereto”, and “hereunder” and words of similar meaning shall refer to this Agreement in its entirety and not to any particular provision of this Agreement.
22.2 Without Limitation. When used for listing purposes, the term “including” or “includes” shall be deemed to mean “including, but not limited to” or “includes, but is not limited to,” as applicable. Wherever in this Agreement that the masculine, feminine or neutral gender is used, it shall be construed as including all genders, and wherever the singular is used, it shall be deemed to include the plural and vice versa, where the context so requires.
22.3 Translations. This Agreement has been executed in the English language. If there is any discrepancy or conflict between the English version and a version in any other language, then the English version shall control in all respects.
22.4 Contra Proferentum. Any rule of construction to the effect that any ambiguity is to be resolved against the drafting party shall not be applicable in the interpretation of this Agreement
23. EXECUTION
This Agreement may be executed in multiple counterparts, and delivered via electronic mail or facsimile, each of which so executed shall be deemed to be an original, and such counterparts together shall constitute one and the same instrument. The individual executing this Agreement on behalf of Publisher represents and warrants that s/he is authorized to execute this Agreement on behalf of Publisher and, to the best knowledge of such individual, all representations made in this Agreement by Publisher are true and correct.
Parkingservice.com PUBLISHER
Signature: _______________________________
Signature: _______________________________
Name: __________________________________
Name: __________________________________
Title: ___________________________________
Title: ___________________________________
