Media Provider

TERMS AND CONDITIONS – MEDIA PROVIDER
 

Subject to these Terms and Conditions and any terms and conditions set forth on the Order Form (“Order Form”, and together with these Terms and Conditions, the “Agreement”), Media Provider shall provide MediaMath with Inventory (defined below). Any capitalized terms used but not defined herein shall have the definitions ascribed to them in the Order Form.

 

WHEREAS, Media Provider set forth above owns and/or operates a proprietary software platform (the “Media Provider Platform”) through which online publishers may sell advertising inventory that can be purchased through a real-time bidding auction (“Inventory”); and

 

WHEREAS, MediaMath, Inc. (“MediaMath”) owns and operates a proprietary software platform known as the “TerminalOne® Marketing OS” (the “MediaMath Platform”) through which advertisers or advertising agents who are clients of MediaMath (“MediaMath Clients”) may access services offered by MediaMath, including but not limited to buying advertising inventory across advertising inventory exchanges and platforms; and

 

WHEREAS, the Media Provider intend to undertake an integration using MediaMath’s API that enables the interoperability of certain features and functionality in the MediaMath Platform and the Media Provider Platform (the “Integration”) in order to permit MediaMath Clients to access Inventory on the Media Provider Platform.

 

NOW, THEREFORE, MediaMath and Media Provider (each a “Party”, collectively the “Parties”) hereby enter into this Media Provider Agreement (this “Agreement”) as of the date of the last signature below (the “Effective Date”).

 

  1. Definitions. In addition to any other term defined in the body of this Agreement, the following terms will have the following meanings:
    • Ads means a creative unit which contains pixels, tags and active URLs that is served onto Inventory.
    • API means, with respect to either Party’s software platforms or programs, its application programming interface.
    • API Documentation means the reference documentation for an API.
    • Bids means a response to a Bid Request that, submitted through the Integrated Product, will be entered into the auction for specific Inventory.
    • Bid Request means any request sent by Media Provider for Bids on available Inventory, each of which shall include certain parameters, criteria, advertising restrictions and Minimum Price, as applicable.
    • ConnectedID Technology means MediaMath’s proprietary technology that enables the recognition and association of devices or browsers in different interaction environments, including cookie-enabled and cookie-less browsers, mobile in-app environments, and others.
    • Cookie-less ID means the identifier generated by MediaMath to identify a browser that does not support cookies.
    • Cookie-less ID Code means the software code provided by MediaMath to Media Company through the MediaMath API that uses the ConnectedID Technology to assign a Cookie-less ID to a browser that does not support cookies associated with a Bid Request.
    • Media Provider Data includes any data that Media Provider would have regardless of MediaMath’s or a MediaMath Client’s use of the Media Provider Platform, any data regarding any error, statistic or use of the Media Provider Platform by MediaMath or a MediaMath Client that does not identify MediaMath or such MediaMath Client, provided that such data is also aggregated.
    • Intellectual Property means, collectively, any patents, trade secrets, copyrights, trademarks, and all other intellectual property protected by the laws of the United States and worldwide, in each case now existing or hereafter developed.
    • MediaMath Data means all data and material provided by MediaMath Clients to Media Provider in connection with the Bid and purchase of Inventory hereunder, any data provided in connection with the Bid Request that does not specifically identify the publisher or Media Provider, such as the Minimum Price, the clearing price, the timestamp and other such information, and any data generated by MediaMath’s usage of the Media Provider Platform that identifies MediaMath or a MediaMath Client.
    • Sensitive Information means any information that includes the following information that may be used to identify an individual, such as:(i) his or her financial account numbers or insurance plan numbers, (ii) precise information about health or medical conditions, (iii) any government-issued identifiers and (iv) includes any information that may identify a minor under the age of 13.
    • Minimum Price means, in connection with any Inventory, a minimum CPM-based bid price therefor.
    • Sites means those display and/or mobile websites that are owned, operated or controlled by Media Provider, or on which Media Provider has a contractual right to serve Ads.

 

  1. Description of Services; License.
    • License and Use.
      • MediaMath hereby grants Media Provider a revocable, non-exclusive, non-transferable, non-sublicensable, royalty-free right and license to access MediaMath’s API and API documentation solely for the Integration. Media Provider agrees to use the MediaMath API in accordance with the API Documentation and any other guidance provided. The Parties will cooperate in the event any bugs, malfunctions and non-conformities arise with respect to the Integration or the integrated solution (“Integrated Product”) and Media Provider will perform additional Integration when and as required to ensure the continued functionality of the Integrated Product. MediaMath reserves the right, in its sole discretion, to change, update or modify its API at any time; provided that it shall provide the Media Provider with sufficientnotice of any such modification that may interrupt access to MediaMath’s API.
      • (x) Media Provider hereby grants MediaMath a revocable, non-exclusive, non-transferable, non-sublicensable, royalty-free right and license to access and use the Media Provider Platform through the Integrated Product to purchase Inventory available thereon during the Term of this Agreement. (y) Media Provider further grants MediaMath a revocable, non-exclusive, non-transferable, non-sublicensable, royalty-free right and license to use data provided in connection with a Bid Request (“Bid Request Data”) to provide insights, analysis, and to use in connection with other MediaMath products; and for clarity, the Parties acknowledge that the products shall be the Intellectual Property of MediaMath. The Parties acknowledge that MediaMath Clients’ access to the Media Provider Platform through the Integrated Product, purchase of Inventory thereon and access to the Bid Request Data as contemplated herein is permitted by the foregoing license grant and shall not be deemed to constitute a sublicense or transfer of such license by MediaMath.
      • MediaMath hereby grants Media Provider a revocable, non-exclusive, non-transferable, non-sublicensable, royalty-free right and license to access and use the Cookie-less ID Code solely to identify a browser in connection with a Bid Request as follows. In the event that a browser associated with a Bid Request does not support cookies, Media Provider will request, and MediaMath will provide, the Cookie-less ID Code through the MediaMath API, which will generate a Cookie-less ID that will be shared with Media Provider in order to identify the browser associated with such Bid Request and future Bid Requests. Media Provider shall not use the Cookie-less ID Code or Cookie-less ID for any purpose other than as set forth in this Agreement and shall not: (v) resell, sub-license or otherwise make available the Cookie-less ID or derivatives thereof to a third party; (w) sync, match, map or otherwise associate the Cookie-less ID with any third party identifier; (x) use any Cookie-less ID or any information therefrom to enhance or create a database for resale to or for access by a third party; (y) attempt to directly or indirectly disassemble, deconstruct, decompile, modify or otherwise reverse engineer the Cookie-less ID; or (z) disclose any Cookie-less ID to, or use the Cookie-less ID to the benefit of, any third party without MediaMath’s prior written consent.
      • Except as set forth herein, no right or implied license or right of any kind is granted to either Party, including but not limited to, any right to use, reproduce, market, sell, host, translate, distribute, transfer, disassemble, decompile or reverse engineer any Intellectual Property of the other Party or any third party. No change in ownership of Intellectual Property is contemplated by this Agreement. Each Party retains all right, title and interest in and to all of its Intellectual Property.
    • Description of Services.
      • Inventory. From time to time, Media Provider will issue Bid Requests through the Media Provider Platform for specific Inventory. MediaMath Clients may submit Bids in response to the Bid Requests, and such Bid shall compete in real time with other bids submitted to Media Provider (whether by other MediaMath Clients or other potential purchasers) for the specific Inventory. In the event that such Bid is the highest, and provided that the Minimum Price (if any) has been met, it shall be deemed the winner of the auction and (x) MediaMath or the Media Provider shall notify the other Party of each winning Bid and the price payable by such MediaMath Client for such Inventory (which is calculated according to the “Vickrey System”, such that the price payable shall be an amount equal to the second-highest Bid price, plus $0.01) and (y) Media Provider shall deliver the winning MediaMath Client’s Ad(s) to the applicable Site in accordance with the winner’s Ad parameters or specifications.
      • Errors; Rejections. In the event of an error in either the Media Provider Platform or MediaMath Platform whereby Bid Requests and Bids are improperly matched or Ads are delivered to Sites that such Ads either should not or would not have been delivered to but for such error, the Parties acknowledge and agree to work together in good faith to resolve any such resulting dispute from such error; provided that no adjustment will be made in favor of a Party if the error resulted from such Party’s breach of this Agreement.  In connection with the foregoing, Media Provider shall use commercially reasonable efforts to remove Inventory with content consisting of pornography or other explicit adult material, hate speech, or the promotion of illegal activities, violence, racism, illegal drugs, or the use of firearms (the “Editorial Guidelines”) and to not serve any MediaMath Client’s Ads on Sites which violate the Editorial Guidelines.  Media Provider shall immediately remove any MediaMath Client’s Ads erroneously served onto Sites which violate the Editorial Guidelines.  Media Provider additionally reserves the right to reject or refuse to serve Ads which violate applicable law or the intellectual property rights of a third party or which contain pornographic images or other explicit adult material, hate speech, or content regarding illegal activities, violence, racism, illegal drugs, or the use of firearms.
      • Fraudulent Inventory. Media Provider shall use commercially reasonable efforts to eliminate Inventory from the Media Provider Platform which would have zero viewability, are or are similar to “ghost sites” or “ad farms”, as these terms are understood in the industry, or which is purposefully misrepresented or mislabeled, or would not viewed by humans,  (collectively, “Fraudulent  Inventory”).  Media Provider shall not be paid, and MediaMath Clients will not be charged, for Impressions on Fraudulent Inventory or Impressions on Sites that violate the Editorial Guidelines.  Media Provider consents to the use of third party services by MediaMath to detect Fraudulent Inventory.
  1. Data and Privacy.
    • As between MediaMath and Media Provider and subject to Section 2(a)(ii)(y), MediaMath shall retain ownership of the MediaMath Data and Media Provider shall retain ownership of Media Provider Data. MediaMath hereby grants Media Provider a non-exclusive, royalty-free, non-transferable license and right during the Term to use the MediaMath Data solely to perform Media Provider’s obligations hereunder.
    • Media Provider shall provide MediaMath the services hereunder in compliance with all applicable laws, including without limitation, applicable privacy laws and internet advertising industry guidelines. In no event shall the Media Provider provide or permit any third party to provide any personally identifiable information or any Sensitive Information to MediaMath and Media Provider may not merge or otherwise associate personally identifiable information with information collected through the MediaMath Platform unless such merger or association is conducted in accordance with applicable law and privacy regulations. Media Provider will immediately notify MediaMath in the event of a security breach of the Media Provider Platform involving MediaMath Data.
    • Media Provider shall not serve Ads onto Sites which do not contain conspicuously posted privacy policies in compliance with all applicable laws.
  2. Fees and Payment.
    • MediaMath shall pay any sales, use or other taxes payable on the fees; provided that such taxes are included in the invoice to MediaMath, but will not be responsible for any federal or state income tax imposed on the Media Provider.
    • MediaMath shall not be obligated to pay any invoices delivered to MediaMath later than sixty (60) calendar days after the date that an MM Report is received by Media Provider.
  3. Representations and Warranties.
    • Each party represents and warrants that: (i) it has the full corporate and contractual (if required) rights, power and authority to enter into this Agreement and perform the acts required hereunder; (ii) the execution and delivery of the Agreement and the performance of its obligations hereunder do not and shall not violate any other agreements to which it is a party; (iii) this Agreement constitutes a valid, legal and binding obligation of such Party when executed and delivered and (iv) any and all activities it undertakes in connection with this Agreement will be performed in compliance with all applicable laws, including applicable privacy laws and regulations.
    • Media Provider represents and warrants that: (i) at all times during the Term, the Media Provider Platform shall be free of any virus, trap door, Trojan Horse, worm, or other device or malicious code that could harm or interrupt the service of the MediaMath Platform, the ConnectedID Technology or Cookie-less ID Code; and (ii) its has obtained contractual representations from all owners of Inventory made available through the Media Provider Platform that all Sites shall be maintained in compliance with the Editorial Guidelines.
  4. Confidential Information.
    • During the Term, each Party may disclose to the other Party certain information (either oral, written or digital) including but not limited to, research, product plans, products, services, pricing, customer lists or opportunities, processes, designs, drawings, technical data, know-how, financial data, marketing material or hardware configuration (collectively, “Confidential Information”). The recipient of the information (“Recipient”) shall hold the disclosing Party’s (“Discloser”) Confidential Information in confidence and shall not disclose Discloser’s Confidential Information to any third party and shall use it solely for the purpose of performing its obligations under this Agreement. Upon termination of this Agreement, Recipient shall either return all Confidential Information in its possession or destroy such Confidential Information and certify its destruction to the Discloser.
    • “Confidential Information” shall not include information which (i) is in the public domain at the time of disclosure or enters the public domain following disclosure through no fault of the Recipient; (ii) the Recipient can demonstrate as already in its possession prior to disclosure hereunder or is subsequently disclosed to the Recipient in each case with no obligation of confidentiality by a third Party having the right to disclose it; or (iii) is independently developed by the Recipient without use of or reference to the Discloser’s Confidential Information. Recipient may disclose the Discloser’s Confidential Information upon the order of any competent court or government agency; provided that prior to disclosure the Recipient shall inform the Discloser of such order and if possible, the opportunity to oppose such order. Each Party agrees that its obligations in Section 5 are necessary and reasonable in order to protect the Discloser and its business, and each Party agrees that the remedy of damages would be inadequate to compensate the Discloser for any  breach  by  the  Recipient of  its  obligations set  out  under  this  Section  Accordingly, each Party agrees that, in addition to any other remedies that may be available, the Discloser shall be entitled to seek injunctive relief against the threatened breach of this Section 5 or the continuation of any such breach by the Recipient, without the necessity of proving actual damages.
  5. Term and Termination.
    • This Agreement shall commence as of the Effective Date and shall continue until and unless either Party provides the other Party written notice of its intent to terminate this Agreement at least sixty (60) days prior to the expiration of the current Term.
    • In addition, either Party may terminate this Agreement immediately if the other Party breaches any term or condition hereunder in any material respect and fails to cure, if capable of cure, such breach within five (5) business days after having been given notice of such default.
  6. Indemnification.
    • Media Provider shall indemnify, defend and hold harmless MediaMath, its Affiliates and their respective officers, directors, employees and agents from and against all liabilities, claims, awards, judgments, settlements, damages and costs (including reasonable attorneys’ fees) arising out of any third party claim, action or demand arising from (i) Media Provider’s breach of its representations set forth in Section 5; (ii) an allegation that the Media Provider Materials infringe on a third party’s Intellectual Property Rights; and (iii) the Media Provider’s gross negligence or wilful misconduct.
    • MediaMath shall indemnify, defend and hold harmless Media Provider, its Affiliates and their respective officers, directors, employees and agents from and against all liabilities, claims, awards, judgments, settlements, damages and costs (including reasonable attorneys’ fees) arising out of any third party claim, action or demand arising from (i) an allegation that the MediaMath Platform infringes on a third party’s Intellectual Property Rights; and (ii) MediaMath’s gross negligence or wilful misconduct.
  7. Limitation on Liability and Disclaimer.
    • Except with respect to the INDEMNIFICATION obligations set forth in Section 8, IN NO EVENT SHALL A PARTY BE LIABLE TO THE OTHER PARTY OR ITS AFFILIATES FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (including, BUT NOT LIMITED TO damages for loss of revenue, and/or profits), whether foreseeable or unforeseeable, arising out of this agreement regardless of whether the liability is based on breach of contract, tort, strict liability, breach of warranties or otherwise, and even if the party has been advised of the possibility of those damages. Except with LIABILITY ARISING UNDER the INDEMNIFICATION obligations set forth in Section 8, EACH PARTY’S UNDER THIS AGREEMENT SHALL NOT EXCEED THE AGGREGATE FEES PAID AND PAYABLE TO MEDIA PROVIDER UNDER THIS AGREEMENT FOR THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE LIABILITY FIRST AROSE.
    • EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PRODUCTS AND SERVICES OFFERED PURSUANT TO THIS AGREEMENT BY EACH OF THE PARTIES ARE PROVIDED “AS IS” AND WITHOUT ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. EACH PARTY DOES NOT MAKE, AND EXPRESSLY DISCLAIMS ANY AND ALL EXPRESS AND IMPLIED WARRANTIES OF ANY KIND OR NATURE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND ANY IMPLIED WARRANTIES OF ANY KIND.
  8. Miscellaneous.
    • Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the state of New York without giving any effect to any conflict of law principles. For any disputes arising out of this Agreement, the parties consent to personal and exclusive jurisdiction of and venue in the state or federal courts within the state and county of New York.
    • Assignment. Neither party may transfer or assign this Agreement or its obligations hereunder, in whole or in part, without the prior written consent of the other Party (which consent shall not be unreasonably withheld, delayed or conditioned), except that a Party may assign all of its rights and obligations hereunder to a successor (whether by sale, acquisition, merger, operation of law or otherwise) if the successor agrees in writing to fulfill all of the assigning Party’s obligations hereunder. This Agreement will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. Any assignments in breach of this Section shall be void ab initio.
    • Notices. All notices hereunder shall be in writing and delivered electronically or by certified or registered mail to the addresses set forth above and shall be deemed delivered when received.
    • Severability. If any of the provisions of this Agreement is or becomes illegal, unenforceable or invalid, the remainder of this Agreement shall remain in full force and effect without being impaired or invalidated in any way.
    • Force Majeure. Neither Party shall be liable to the other Party for any delay or failure to perform any of its obligations set forth in this Agreement due to causes beyond its reasonable control, including to acts of nature, war, strikes, acts of terrorism, national disasters or unavailability of necessary utilities.
    • Independent Contractors. Nothing in this Agreement shall be construed to create a joint venture, partnership, employment or agency relationship between the Parties.
    • Publicity. Neither Party will issue any press releases regarding this Agreement without the other Party’s prior written consent; provided, however, that MediaMath may publicize the availability of the Media Provider Platform to its clients and potential and may use the applicable Media Provider mark for such purposes.
    • Non-exclusivity. Subject to the confidentiality obligations set forth in Section 7, each Party acknowledges that nothing in this Agreement restricts the other Party from developing or offering similar products or services to any third party or acquiring services similar to those offered hereunder from third parties.

 

Last Revised:  April 12, 2017