Publisher Inventory

 

TERMS AND CONDITIONS – PUBLISHER INVENTORY

 

 

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”), Publisher shall provide MediaMath with the Advertising Inventory (defined below). Any capitalized terms used but not defined herein shall have the definitions ascribed to them in the Order Form.

 

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;

 

WHEREAS, Publisher set forth above owns and/or operates the web and mobile sites set forth on Exhibit A hereto and has the right to serve Ads thereon (“Publisher Sites”); and

 

WHEREAS, the Publisher intends to undertake an integration using MediaMath’s Software that enables the interoperability of certain features and functionality in the MediaMath Platform and the Publisher Sites in order to permit MediaMath Clients to access and submit Bids for Advertising Inventory on the Publisher Sites.

 

NOW, THEREFORE, MediaMath and Publisher (each a “Party”, collectively the “Parties”) hereby enter into this Publisher Services Agreement (this “Agreement”) as of the date of the Effective Date set forth above.

 

  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 Advertising Inventory.
    • Advertising Inventory means inventory on Publisher Sites available for purchase.
    • Bids means a response to a Bid Request, submitted to the MediaMath Platform by a MediaMath Client, based on the Bid Data, that will be entered into the auction for specific Advertising Inventory.
    • Bid Data means a MediaMath Client’s data and parameters for bidding on a particular Advertising Inventory and shall include a CPM-based bid price and Advertising Material for such Advertising Inventory.
    • Bid Request means any request sent by Publisher to the MediaMath Platform for Bids on available Advertising Inventory, each of which shall include certain parameters, criteria, advertising restrictions and Minimum Price, as applicable.
    • Cloudlet means the proprietary technology of Akamai Technologies, Inc. (“Akamai”), which contains the MediaMath Software. In order to use the Cloudlet, Publisher must either be an existing customer of Akamai, or must become a customer of Akamai.
    • 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 statistical identifier generated by MediaMath to identify a browser or device used by a consumer to access a web or mobile site or software application, including in environments that do not support cookies.
    • Cookie-less ID Code means the software code provided by MediaMath to Publisher 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.
    • First Price means the price payable equals the amount of the highest Bid for an Advertising Inventory.
    • Fixed Price means a pre determined price payable that has been agreed between MediaMath and Publisher.
    • Intellectual Property Rights means, collectively, any and all proprietary rights relating to 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 Publisher in connection with the Bid and purchase of Advertising Inventory hereunder; any data provided in connection with a Bid Request that does not specifically identify the Publisher or Publisher Site, such as the Minimum Price, the clearing price, the timestamp and other such information; and any data generated by the interaction of the MediaMath Software with the Publisher Site that identifies MediaMath or a MediaMath Client.
    • MediaMath Software means the software, including a header tag, that is placed directly onto the Publisher’s Site(s) or enabled through the Publisher’s use of the Cloudlet, which allows the Publisher Site(s) to be integrated into the MediaMath Platform such that the Publisher Sites’ Advertising Inventory is made available on the MediaMath Platform for MediaMath Clients to Bid on.
    • Minimum Price means, in connection with any Advertising Inventory to be bid on, a minimum CPM-based bid price therefor set by the Publisher.
    • Pseudonymous Data means data that cannot directly identify an individual without the use of additional information, and shall include Cookie-less ID and MMUID (defined below).
    • Publisher Data includes any data that Publisher would have regardless of MediaMath’s or a MediaMath Client’s use of the Publisher Platform, any data regarding any error, statistic or use of the Publisher Site by MediaMath or a MediaMath Client that does not identify MediaMath or such MediaMath Client, provided that such data is also aggregated.
    • Second Price means the price payable for Advertising Inventory subject to the “Vickrey System” type of auction, which shall be an amount equal to the second-highest Bid therefor, plus $0.01.
    • 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) data about an individual’s precise location over time, (iv) any government-issued identifiers, and (v) includes any information that may identify a minor under the age of 13.
    • Visitor means a visitor to a web or mobile site.

 

  1. Description of Services; License.
    • Services and Obligations.
      • Advertising Inventory. MediaMath shall provide the MediaMath Software, which when placed onto Publisher Sites or accessed through the Cloudlet, allows Publisher to integrate with the MediaMath Platform, and to make Advertising Inventory available thereon by issuing Bid Requests for such Available Inventory.
        1. From time to time, Publisher will issue Bid Requests to the MediaMath Platform. MediaMath Clients may submit Bids in response to the Bid Requests, and such Bid shall compete in real time with other bids submitted to Publisher (whether by other MediaMath Clients or other potential purchasers on another platform) for the specific Advertising Inventory. In the event that a MediaMath Client’s 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 Publisher shall notify the other Party of each winning Bid and the price payable by such MediaMath Client for such Advertising Inventory (which shall be First Price, Second Price or Fixed Price, as set forth in the the Bid Request and (y) MediaMath shall deliver the winning MediaMath Client’s Ad(s) to the applicable Publisher Site’s Advertising Inventory in accordance with the parameters or specifications set forth in the winning Bid Data.
        2. From time to time, MediaMath may agree to buy a specific amount of Advertising Inventory at a certain price payable agreed between the parties. Such Advertising Inventory (“Guaranteed Buys”) (x) shall be evidenced by an insertion order between MediaMath and the Publisher, which shall set forth the price payable and flight times for such Guaranteed Buy Advertising Inventory and additional terms, if any.
        3. MediaMath shall prohibit MediaMath Clients from serving Ads that contain, promote or have links to any pornography or other explicit adult material, hate speech or promote violence, defamatory materials, racism, illegal drugs, discrimination based on race, sex, religion, nationality, disability, sexual orientation, age or family status or the use of firearms (“Prohibited Content”).
        4. Publisher shall not place the MediaMath Software on any Publisher Site that: contains, promotes or links to Prohibited Content; any software piracy systems, hacking or the illegal downloading of software or proprietary art work (such as music); contain pop-ups or pop-unders that materially restrict the view of any Ad; are personal web pages (Geocities, Xoom, Tripod, Talk City, etc.); or promote activities generally understood as Internet abuse, including but not limited to, the sending of unsolicited bulk electronic mail or the use of spyware programs (collectively, “Prohibited Site Content”). Publisher additionally reserves the right to reject or refuse to serve Ads which violate applicable law or the Intellectual Property Rights of a third party. MediaMath shall not be liable for payment in respect of any Ads that were served onto Publisher Sites with Prohibited Site Content.
      • Errors; Rejections. In the event of an error in the MediaMath Platform whereby Bid Requests and Bids are improperly matched or Ads are delivered to Publisher 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.
      • Fraudulent Inventory. Publisher shall use commercially reasonable efforts to eliminate Advertising Inventory from the Publisher Sites 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”).  Publisher shall not be paid, and MediaMath Clients will not be charged, for Ads served onto Fraudulent Inventory.  Publisher consents to the use of third party services by MediaMath to detect Fraudulent Inventory.
      • In order to determine the value and Bid price of an available unit of Advertising Inventory, during the Term, MediaMath and Publisher shall conduct a real-time data transfer (each, a “Pixel Sync”) to enable MediaMath to associate and map an individual Visitor to the Publisher Site to an anonymous ID assigned by MediaMath to such Visitor or the device such Visitor is using to visit the Publisher Site (“MMUID”).
    • License and Use.
      • MediaMath hereby grants Publisher a revocable, non-exclusive, non-transferable, non-sublicensable, royalty-free right and license to access the MediaMath Software, and to place such MediaMath Software directly onto Publisher Sites. Publisher agrees to use the MediaMath Software in accordance with any documentation or guidance provided by MediaMath.
      • (x) Publisher hereby grants MediaMath a revocable, non-exclusive, non-transferable, non-sublicensable, royalty-free right and license to access the Publisher Site through the MediaMath Software to purchase Advertising Inventory available thereon during the Term of this Agreement. (y) Publisher 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 Advertising Inventory through the MediaMath Platform 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 Publisher 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, Publisher 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 Publisher in order to identify the browser associated with such Bid Request and future Bid Requests. Publisher 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.
  1. 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 Publisher.
    • 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 Publisher.
  2. Data and Privacy.
    • As between MediaMath and Publisher and subject to Section 2(b), MediaMath shall retain ownership of the MediaMath Data and Publisher shall retain ownership of Publisher Data. MediaMath hereby grants Publisher a non-exclusive, royalty-free, non-transferable license and right during the Term to use the MediaMath Data solely to perform Publisher’s obligations hereunder, provided that such usage must also be in accordance with all applicable laws, including without limitation, applicable privacy laws and internet advertising industry guidelines.
    • Publisher shall provide the Advertising Inventory hereunder in compliance with all applicable laws, including without limitation, applicable privacy laws and internet advertising industry guidelines.
    • In no event shall the Publisher provide any personally identifiable information or any Sensitive Information to the MediaMath Platform; provided, however, that this restriction shall not apply to Pseudonymous Data, regardless of whether Pseudonymous Data is deemed to be personally identifiable information under applicable law.  Publisher 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.
    • Publisher will immediately notify MediaMath in the event of a security breach of the Publisher Site.
    • Publisher may not place the MediaMath Software on any Publisher Sites that do not contain conspicuously posted privacy policies in compliance with all applicable laws.
  3. Intellectual Property Rights.
    • MediaMath retains all right, title and interest in and to, and all the Intellectual Property Rights in connection with, the MediaMath Software and the MediaMath Platform. Publisher gains no proprietary right, title or interest in or to the MediaMath Platform or MediaMath Software other than the limited rights granted by MediaMath hereunder. Publisher retains all right, title and interest in and to, and all the Intellectual Property Rights in connection with, the Publisher Sites.
    • Publisher acknowledges and agrees that it does not have any rights in or title to any of the Intellectual Property Rights contained in the Ads served onto its Advertising Inventory, except for the right to display such Ad on Publisher Sites in accordance with this Agreement. Publisher agrees that it will not use the Ads for any purpose other than displaying such Ad on the Publisher Sites as contemplated herein. Publisher may not alter the Ad in any way whatsoever.
  4. Representations, Warranties and Covenants.
    • 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.
    • Publisher represents, warrants and covenants that: (i) at all times during the Term, the Publisher Site 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; (ii) it shall not directly or indirectly reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code, or underlying structure of the MediaMath Software, Cookie-less ID Code or MediaMath Platform; (iii) it has and shall continue to have all legal right to use, distribute and make available the Advertising Inventory and (iv) it shall continue to use the MediaMath Software in accordance with documentation provided in connection therewith.
  5. 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.
  6. 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.
    • Upon termination or expiration of this Agreement, all rights and licenses granted herein will terminate and Publisher will make no further use of the MediaMath Software or MediaMath Platform, and shall remove the MediaMath Software from Publisher Sites.
  7. Indemnification.
    • Publisher 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) Publisher’s breach of its representations set forth in Section 5; (ii) the Publisher Sites; (iii) Publisher’s use of the MediaMath Software and MediaMath Platform and (iv) the use by Publisher of any trademark on its Publisher Site that infringes on an Intellectual Property Right of a third party.
    • MediaMath shall indemnify, defend and hold harmless Publisher, 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. Notwithstanding the foregoing, MediaMath will have no liability for any claim to the extent it is based on solely Publisher’s use of the MediaMath Software or MediaMath Platform in breach of this Agreement. In the event that MediaMath reasonably determines that the MediaMath Software or MediaMath Platform is infringing upon the Intellectual Property Rights of a third party, it will have the option, at its sole discretion, to: (x) replace or modify the MediaMath Software or the MediaMath Platform to be non-infringing; (y) obtain for Publisher the right to continue using the MediaMath Software or MediaMath Platform, as applicable or (z) terminate this Agreement upon written notice to Publisher.
  8. 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 9, EACH PARTY’S LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE AGGREGATE FEES PAID AND PAYABLE TO PUBLISHER 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.
  9. 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 Publisher Platform to its clients and potential and may use the applicable Publisher 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.