PLEASE CAREFULLY READ THESE TERMS OF SERVICE BEFORE APPLYING TO LICENSE THE ADGENT DIGITAL AD PLATFORM (THE “ADGENT DIGITAL PLATFORM”). UTILIZATION OF THE ADGENT DIGITAL PLATFORM INDICATES THAT YOU ACCEPT THESE TERMS OF SERVICE. NOTE: YOUR ACCEPTANCE OF THESE TERMS OF SERVICE DOES NOT AUTOMATICALLY MEAN THAT YOU OR YOUR SITES HAVE BEEN APPROVED TO RECEIVE A LICENSE TO USE THE ADGENT DIGITAL PLATFORM. ACCEPTANCE IS SUBJECT TO THE CONTINUED REVIEW AND EXPLICIT ACCEPTANCE AND APPROVAL OF YOU BY ADGENT DIGITAL IN THE EXERCISE OF ADGENT DIGITAL’S SOLE DISCRETION. IF YOU ARE NOT APPROVED TO UTILIZE THE ADGENT DIGITAL PLATFORM, YOU WILL NONETHELESS BE BOUND BY THE PROPRIETARY RIGHTS (SECTION 9), CONFIDENTIALITY (SECTION 25), AND LIMITATION OF LIABILITY (SECTION 18) TERMS OF THE AGREEMENT.
This agreement (“Agreement”) between Publisher and AdGent Digital (“AdGent”) shall govern Publisher’s use of the AdGent Digital Platform. “You” or “Publisher” means any entity identified in an enrollment form submitted by the same or affiliated persons, and/or any agency or network acting on its (or their) behalf, which shall also be bound by the terms of this Agreement.
1. Definitions. Capitalized terms shall have the meaning ascribed to them below or on the page they first appear in the Agreement.
“Advertising Impression” means each individual call to AdGent’s servers to return an Advertisement to the Site.
“Advertisement” means an advertising unit utilizing the AdGent Digital Platform.
“Advertiser” means an individual or entity that has a then-effective contractual relationship with Publisher under which Advertisements are to appear on the Site(s). Advertiser may include Publisher regarding in-house Advertisements.
“Advertising Content” shall mean any data, text, graphics, sound, music, audiovisual content or other programming made available by Publisher or its Advertisers for streaming/distribution through the AdGent Digital Platform, together with all associated metadata.
“Audience Qualification” means the decisioning done by Publisher’s ad server or content management system to support any targeting or frequency capping in an OTP Campaign such that there is a 100% fill rate on calls to AdGent’s ad servers.
“Publisher Brand Features” shall mean Publisher’s trademarks, service marks, logos, “look and feel” and other brand indicia of Publisher.
“OTP Campaigns” shall mean ad campaigns that utilize the AdGent Digital Platform to deliver over-the-page video ads.
“Passback” shall mean an ad call request from Publisher to AdGent’s servers that is returned by AdGent without playing an Advertisement, for further use by Publisher at its discretion.
“Player” shall mean a web-based video content player generated by the AdGent Digital Platform.
“AdGent Digital Platform” shall mean AdGent’s proprietary ad delivery platform that enables the execution of OTP Campaigns.
2. License. Subject to the terms hereof, AdGent grants Publisher a non-exclusive, non-transferable license to access and use the AdGent Digital Platform solely for the purposes of enabling OTP Campaigns on Publisher’s website located at the Site or Site(s) indicated in the application form or on the signed AdGent contract with Publisher (the “Site(s)”).
3. Services. AdGent will provide the following OTP Campaign support services (“Services”), with Publisher’s assistance, during the Term: (i) OTP Campaign Implementation and Management; (ii) Advertising Asset Management; (iii) Hosting; (iv) Ad Delivery and Asset Storage; (v) Site and Browser compatibility testing; (vi) CDN Costs; (vii) Yield Optimization Assistance; (viii) Trafficking Workflow; and (ix) Campaign Impression Reporting and Analytics.
4. Campaign Fees. Publisher will pay the amount computed by applying AdGent’s then applicable CPM (cost per thousand) rates (“Campaign Fees”): 2011 Rates
Rates are subject to Publisher handling all Audience Qualification at its ad server before calling AdGent’s servers. Rates include up to 30 seconds of host-initiated video with maximum file size of 5.0Mb. Additional charges for greater durations are $0.05 per additional second; determined case-by-case for larger file sizes
5. Additional Services and Fees. If a digital video file is not delivered via email or FTP to specification in .flv format, the rate for transcoding that file will be five hundred dollars ($500.00) per ad creative. We can also encode and transcode physical media (e.g., tape, cd, beta-sp, digi-beta) for the convenience of our clients for an additional processing fee that is determined on a case-by-case basis.
6. Implementation Method. AdGent’s Publisher Operations team will work with you to identify the best method for your Site implementation. Publisher agrees to work in good faith with AdGent to ensure the proper delivery, display, tracking, and reporting of Advertisements.
7. Term/Termination/Notice. This Agreement is valid for one year from the date the Agreement is signed by Publisher (the “Term”). If there is any material breach of this Agreement by a party, the other party may terminate this Agreement by giving 30 days’ notice; provided, however, that such termination shall not be effective if the breach has been cured prior to the expiration of said 30 days. Notice of termination or notice regarding any other contractual matter, may be provided via e-mail and will be effective immediately, provided that notice is also sent concurrently via nationally recognized overnight courier. Notices to AdGent Media shall be sent to dana.lepene@adgentdigital.com with hard copies to AdGent Digital, 540 University Avenue, Suite 300, Palo Alto, CA 94301. Notices to Publisher will be sent to the address provided in Publisher’s application.
8. Invoices/Taxes. Publisher will be responsible for developing and managing the billing relationship with Advertisers for OTP Campaigns. AdGent will invoice Publisher on a monthly basis. At Publisher’s request, AdGent will invoice the Advertiser’s agency, provided that the agency has agreed with AdGent in writing that it will pay the Campaign Fees due under this agreement for Advertising Impressions served to a Site, and Publisher will not be obligated to pay such fees once the agency pays in full. The monthly Campaign Fees shall be based on the number of Advertising Impressions delivered through the AdGent Digital Platform on behalf of Publisher each month, divided by 1,000 and then multiplied by the effective CPM rate(s). All AdGent invoices shall be based on AdGent’s ad server count, which shall be conclusive in the event of a dispute, provided that some advertisements may be served by a third party server in which case AdGent may need to rely on the third party server’s traffic audit for payment purposes. All fees are due upon receipt of invoice and payable within thirty (30) days. All fees will be paid in U.S. dollars by check or wire transfer to an account to be designated by AdGent, or by other means expressly agreed to in writing by the parties. Late payments will be subject to late fees at the rate of one and one half percent (1.5%) per month, or, if lower, the maximum rate allowed by law. If Publisher fails to pay fees invoiced by AdGent within forty-five (45) days following the payment due date, AdGent will have the right to suspend performance with notice to Publisher; such service not to be reinstated until Publisher pays all such overdue amounts. In addition, Publisher also agrees to pay any attorneys’ fees and/or collection costs incurred by AdGent in collecting any past due amounts from Publisher. Publisher shall pay all federal, state, local and other sales, use and other taxes that may be imposed by law upon Publisher in connection with this Agreement, other than taxes on AdGent’s net income.
9. Proprietary Rights. Publisher may not use the AdGent Digital Platform except as expressly provided for in this Agreement. Publisher will not, and Publisher will not authorize any third party to, modify, reverse engineer, disassemble, reconstruct, decompile, copy or create derivative works of the AdGent Digital Platform or any aspect or portion thereof including look and feel, nor alter or remove any identification, trademark, copyright, or other notice from the AdGent Digital Platform. Publisher will not, directly or indirectly, introduce viruses, spyware or other malicious code into the AdGent Digital Platform. AdGent reserves the right to use technical means to verify that Publisher’s use of the AdGent Digital Platform is in compliance with the terms of this Agreement. Each party reserves all rights not expressly granted in this Agreement, and disclaims all implied licenses, including implied licenses to trademarks, copyrights, trade secrets, and patents.
10. Publisher Retention; Non-Exclusive License to Use Marks. Publisher shall retain all right, title, and interest in the Publisher Brand Features and other intellectual property rights relating to Publisher and the Site (“Publisher Property”). Publisher hereby grants to AdGent a non-exclusive right and license to use, reproduce, and display the Publisher Property as needed to perform its obligations under the Agreement. AdGent shall retain all right, title, and interest in its service marks, trademarks, trade name, logos and other intellectual property rights relating to the AdGent Digital Platform and AdGent (“AdGent Property”). AdGent shall have the right to reference Publisher as a client to potential Publishers in its marketing materials including without limitation its website.
11. Data. Publisher shall have the sole and exclusive right to use all data derived from Publisher’s OTP Campaigns, for any purpose related to Publisher’s business subject to any applicable laws and regulations restricting such use; and provided further that Publisher grants AdGent a license to use and disclose data derived from Publisher’s use of the AdGent Digital Platform solely (i) as part of its business operations, to disclose aggregate statistics about the AdGent Digital Platform in a manner that prevents individual identification of Publisher or Publisher’s information; (ii) to the extent necessary to (a) perform its obligations under this Agreement; (b) operate, manage, test, maintain and enhance the AdGent Digital Platform; and/or (c) protect the AdGent Digital Platform from what, in AdGent’s reasonable determination, is a threat to AdGent Digital Platform or the reputation of AdGent or its Affiliates; (iii) if required by court order, law or governmental agency; and/or (iv) as otherwise expressly permitted by Publisher.
12. Ad Creative Rights Clearance. Publisher represents and warrants that it has secured all rights, waivers and permissions necessary to display the Advertising Content and that the use and distribution of such Advertising Content by AdGent to perform its obligations under this Agreement will not cause AdGent to incur any payment liability to any third party. AdGent is merely a passive conduit with respect to Advertising Content, and Publisher grants AdGent a worldwide, royalty-free right and license, to use, reproduce, modify for technical purposes only, distribute, publicly perform, publicly display and digitally perform the Advertising Content solely in a matter contemplated and as permitted in this Agreement.
13. Prohibited Content. AdGent does not license or accept any Site that contains: indecent, obscene or pornographic material, hate speech, highly explosive subject matter (as determined by AdGent), or any illegal subject matter or activities (collectively referred to as the “Prohibited Content”). Publisher represents and warrants that during the term of this agreement any of its Site(s) on which it places OTP Campaigns shall not contain or promote any Prohibited Content.
14. Prohibited Activities. Publisher agrees that it shall not:
(a) Intentionally place OTP Campaigns on blank web pages or on web pages with no content;
(b) Place OTP Campaigns on websites or web pages with Prohibited Content;
(c) Serve OTP Campaigns from any location other than the AdGent server, unless agreed to by AdGent; or
(d) Alter, copy, modify, take, sell, re-use, or divulge in any manner any OTP Campaigns or computer code provided by AdGent.
15. Overdelivery. Placements shall run for the specified period of time regardless of over-delivery, unless the IO establishes an impression cap. AdGent will use commercially reasonable efforts to suspend delivery and within 48 hours, notify Publisher of over-delivery. Publisher will be responsible for all applicable incremental Advertisement serving charges incurred by AdGent associated with over-delivery by more than 10% above such guaranteed or capped levels.
16. Indemnification. AdGent shall indemnify, defend and hold Publisher harmless from settlement amounts and damages, liabilities, penalties, costs and expenses that are payable to any third party claimant (including reasonable attorney’s fees) finally awarded in a settlement or by a court arising from any claim or allegation by a third party (i) of gross negligence or willful misconduct of AdGent; (ii) that the AdGent Digital Platform infringes or misappropriates any intellectual property right or other right of a third party; and (iii) of any breach by AdGent of any representation or warranty hereunder; provided that Publisher gives AdGent: (a) prompt written notice of any such claim or allegation; (b) control of the defense or settlement thereof; and (c) reasonable assistance in such defense or settlement. Publisher shall indemnify, defend and hold AdGent harmless from settlement amounts and damages, liabilities, penalties, costs and expenses that are payable to any third party claimant (including reasonable attorney’s fees) finally awarded in a settlement or by a court arising from any claim or allegation by a third party (i) of gross negligence or willful misconduct of Publisher; (ii) that Publisher’s Brand Features or Advertising Content infringes or misappropriates any intellectual property right or other right of a third party; and (iii) of any breach by Publisher of any representation or warranty hereunder; provided that AdGent gives Publisher: (a) prompt written notice of any such claim or allegation; (b) control of the defense or settlement thereof; and (c) reasonable assistance in such defense or settlement.
17. Limitation and Exclusion of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, OR LOSS OF BUSINESS OPPORTUNITY, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. ADGENT’S MAXIMUM AGGREGATE LIABILITY FOR DAMAGES (INCLUDING WITHOUT LIMITATION ANY DAMAGES PAYABLE UNDER SECTION 16, WILL NOT EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY PUBLISHER TO ADGENT UNDER THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD PRIOR TO THE DATE THE LIABILITY FIRST AROSE. THE FOREGOING LIMITATIONS ARE CUMULATIVE, WITH ALL CLAIMS BEING AGGREGATED TO DETERMINE SATISFACTION OF THE LIMIT. THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT INCREASE THE LIMIT. THE LIMITATIONS ON LIABILITY SET FORTH IN THIS SECTION WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY SET FORTH IN THIS AGREEMENT.
18. Warranties and Disclaimer. Each party represents and warrants that (i) it has the power and authority to enter into and perform the obligations hereunder; (ii) it has all the necessary rights to grant rights and license hereunder; and (iii) it will comply with all applicable laws, rules in the performance of their respective obligations hereunder. AdGent further represents and warrants that the Services performed under this Agreement will be performed in a professional and workmanlike manner, and that AdGent has the required skills and experience to perform the Services. EXCEPT AS SET FORTH IN THIS AGREEMENT, ADGENT MAKES NO WARRANTIES OF ANY KIND TO ANY PERSON WITH RESPECT TO THE SERVICES, THE ADGENT DIGITAL PLATFORM OR ANY DATA SUPPLIED THEREBY, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. ADGENT DOES NOT MAKE ANY REPRESENTATIONS REGARDING THE BENEFIT YOU WILL OBTAIN FROM YOUR USE OF THE SERVICES OR ADGENT DIGITAL PLATFORM. FURTHERMORE, ADGENT DOES NOT REPRESENT OR WARRANT THAT THE ADGENT DIGITAL PLATFORM OR SERVICES WILL BE ERROR-FREE, ALWAYS AVAILABLE OR OPERATE WITHOUT LOSS OR CORRUPTION OF DATA OR TECHNICAL MALFUNCTION.
19. Governing Law. The relationship between AdGent and Publisher will be governed by, and construed in accordance with, the laws of the State of California without regard to its laws or regulations relating to conflicts of laws.
20. Severability and Waiver. Should any provision of this Agreement be held to be void, invalid, or inoperative, the remaining provisions of the Agreement shall not be affected and shall continue in effect and the invalid provision(s) shall be deemed modified to the least degree necessary to remedy such invalidity. The failure of either party to partially or fully exercise any right or the waiver by either party of any breach shall not prevent a subsequent exercise of such right or be deemed a waiver of any subsequent breach of the same or any other term of this Agreement.
21. Assignment/Transfer. This Agreement and the rights and obligations hereunder may not be assigned or otherwise transferred by either party without the prior written consent of the other. However, either party (without consent) may assign its rights and obligations to any successor to all or substantially all of its business that concerns this Agreement (whether by sale of stock or assets, merger, consolidation or otherwise).
22. Force Majeure. Neither party will be liable for delay or default in the performance of its obligations hereunder if such delay or default is caused by conditions beyond its reasonable control, including but not limited to fire, flood, accident, earthquake, telecommunications failure, electrical outages, network failures, acts of God, or labor disputes.
23. Applicability. These terms and conditions, as and if amended, shall constitute the entire and only Agreement between the parties, and shall supersede all previous communications, representations or Agreements, whether written or oral between the parties.
24. Confidentiality.
(a) Confidential Information. “Confidential Information” shall mean any information which is, or should be reasonably understood to be, confidential or proprietary to the disclosing party, including, but not limited to, this Agreement, technical processes and formulas, source codes, product designs, sales, cost and other unpublished financial information, product and business plans, projections and marketing data, and derives economic value from not being generally known and is the subject of reasonable efforts by the disclosing party to maintain its secrecy. “Confidential Information” shall not include information (a) already lawfully known to or independently developed by the receiving party without a duty of confidentiality, (b) disclosed in published materials, which are available to the general public, by persons other than the receiving party, (c) generally known to the public not due to the fault of the receiving party, (d) lawfully obtained from any third party or (e) required or reasonably advised by outside legal counsel to be disclosed by law.
(b) Protection of Confidential Information. The parties recognize that in connection with the performance of the parties’ obligations and rights under this Agreement, each party may disclose to the other Confidential Information. The party receiving any Confidential Information agrees to maintain the confidential status of such Confidential Information and not to use any such Confidential Information for any purpose other than the purpose for which it was originally disclosed to the receiving party, and not to disclose any of such Confidential Information to any person or third party, other than, on a need-to-know basis, to its directors, employees, attorneys, accountants, and affiliates who are under an obligation of confidentiality as protective as the confidentiality obligations set forth in this Section.
