Terms & Conditions
1. Publisher Properties. The Publisher Properties shall have and maintain industry standard functionality during the term at least sufficient to support Internet Advertising Bureau standard Advertising units, video units, rich media units, and custom editorial and promotional modules, as such may be mutually modified by the parties hereto (collectively, the “Publisher Properties Functions”). PUBLISHER shall maintain the Publisher Properties in accordance with reasonable industry standards. PUBLISHER agrees that, in connection with the operation of the advertising sales services, DMR may access or call to the Publisher Properties or the servers that make them available and to cause the routing, transmission, reproduction, and display of Advertisements as contemplated herein. PUBLISHER acknowledges that DMR has no responsibility to review the content of the Publisher Properties and represents that the Publisher Properties shall not contain, or contain links to, content promoting the use of illegal substances, pornography, content promoting illegal activity (including, by means of illustration, but not limitation, drug use or underage consumption of alcohol), racism, hate speech, “spam”, mail fraud, pyramid schemes, investment opportunities or advice not permitted by law, content that is libelous, defamatory, contrary to public policy, or otherwise unlawful; provided, that the foregoing representation shall not apply to any third-party content on or within any user originated content forums or message boards on the Publisher Properties. PUBLISHER shall not authorize, permit (to the extent within PUBLISHER’s control), engage in, or enable the use of any deceptive, incentivized, mechanical, computerized, artificial, fraudulent or other invalid means to increase the number of impressions, page views, click-throughs or any other measure of traffic on or in connection with the Advertising inventory, including, without limitation, by any of the following means: (i) traffic generated by script, macro or any other automated means with the intent to impair the integrity of the traffic generation process; (ii) traffic generated by misleading or incentivized means, including PUBLISHER, its employees, contractors or agents clicking on any Advertising; and/or (iii) offering an end user any inducement of any kind to click on any Advertising (e.g., paying a user to click on Advertising, etc.), except in the course of standard OTT, CTV or website operation (collectively, “Fraudulent Activity”). For the avoidance of doubt, any impression, page view, click-through, and/or any other measure of traffic considered by DMR in its sole good faith and reasonable discretion to have been generated by means of Fraudulent Activity prohibited under this Section 1(b) shall not be counted for purposes of calculating any amounts that may be due to PUBLISHER hereunder.
2. Payment Terms and Reporting. Subject to the terms and conditions of this Agreement, DMR shall pay to PUBLISHER its share of net revenue as set forth in the Business Terms (the “Publisher Amounts”). Publisher acknowledges that all Publisher Amounts hereunder shall be based on the impression counts as determined by DMR and may be adjusted following the end of each month to account for other factors including the counts used by Advertisers. For the avoidance of doubt, all Publisher Amounts hereunder are based on Advertisement requests from the Publisher Properties that are actually fulfilled with an Advertisement provided by DMR’s advertising sales services, except as expressly provided in this Agreement. All amounts received from activities DMR deems to be suspicious activity may be in DMR’s sole discretion deducted from Publisher Amounts.
DMR will furnish PUBLISHER a monthly report (the “Publisher Report”). Upon receipt of the Publisher Report, Publisher shall submit an invoice to DMR (the “Monthly Invoice”) within ten (10) business days, and such invoice will be based on the final monthly figures contained in the Publisher Report. DMR agrees to pay Publisher Amounts within thirty (30) days after the last day of the month in which DMR received the applicable net revenue, provided that no payment will be issued for any amount less than USD $100.00. All payments by DMR to Publisher will be made in U.S. Dollars.
3. Term. The term of this Agreement shall commence as of the Effective Date and continue for a period of one (1) year thereafter (“Initial Term”), unless sooner terminated as provided for herein. This Agreement shall automatically renew for successive one (1) year renewal terms (each, a "Renewal Term", and together with the Initial Term, the “Term”) unless terminated as set forth herein.
5. Properties and Content. PUBLISHER agrees that DMR has no responsibility for any content on Publisher Properties, and DMR has no obligation or ability to monitor or edit the Publisher Properties and content. Publisher agrees to provide as much advance notice as is reasonably practicable regarding any material changes to the nature or design of any Publisher Property, including without limitation changes to the placement of Advertisement inventory, the type of content, or the target audience.
6. Service Modification. DMR reserves the right to modify or suspend DMR’s advertising sales services in whole or in part at any time if DMR believes such modification is reasonably necessary in order to: (a) comply with applicable law or industry regulation, including the requirements of any self-regulatory program or framework; (b) to avoid or limit liability; (c) prevent errors or any other harm with respect to DMR’s advertising sales services; or (d) respond to any breach by PUBLISHER of this Agreement.
7. Representations and Warranties. DMR makes no, and expressly disclaims any, warranties, express or implied relating to the functionality of the DMR advertising network or its advertising sales services, including, without limitation, any warranty of merchantability, fitness for a particular purpose, title, non-infringement, the amount of revenue generated from advertising sales services, or the DMR advertising network or otherwise, including, but not limited to, the functionality, performance, or results of use thereof. Each party represents and warrants to the other that: (a) it has the full power and authority to enter into this Agreement and fully perform all of its obligations hereunder without violating the legal or equitable rights of any third party; (b) it has all rights necessary to enter into this Agreement and to grant the rights hereunder; and (c) that any materials provided by such party to the other party are free of any software virus, worm, virus macro, Trojan horse or other such component designed to permit unauthorized access, to disable, erase or otherwise harm or maliciously alter software, hardware or data. Except as expressly set forth in this Agreement, the parties make no other warranties hereunder and expressly disclaim all other warranties, express or implied.
8. Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, AND EACH PARTY EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AND ANY IMPLIED WARRANTIES ARISING FROM THE COURSE OF DEALING OR PERFORMANCE OF THE GOODS, SERVICES, AND/OR TECHNOLOGY PROVIDED UNER OR IN CONNECTION WITH THIS AGREEMENT. DMR AND ITS SUPPLIERS AND PARTNERS DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE DMR ADVERTISING SALES SERVICE WILL BE CORRECT, UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE DMR ADVERTISING SALES SERVICE OR THE COMPUTERS, NETWORKS OR SERVERS THAT MAKE IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, DMR MAKES NO GUARANTEE REGARDING THE NUMBER, QUALITY, OR CONTENT OF ANY ADVERTISEMENTS OR THE TIMING OF DELIVERY OF SUCH ADVERTISEMENTS. DMR RESERVES THE RIGHT AT ALL TIMES, AT ITS DISCRETION, AND WITHOUT NOTICE, TO REMOVE OR REFUSE TO DISTRIBUTE ANY DMR ADVERTISEMENTS. DMR DOES NOT WARRANT THE RESULTS OF USE OF THE DMR SERVICE. PUBLISHER ACKNOWLEDGES THAT DMR MAY MODIFY OR SUSPEND THE DMR SERVICE AT ANY TIME IN TIS SOLE DISCRETION AND WITHOUT NOTICE.
9. Indemnity. Each party (“Indemnifying Party”) agrees to indemnify and hold harmless the other party, its parents, affiliates, subsidiaries and its and their officers, directors, consultants and/or employees (collectively, “Indemnified Party”) from and against any cost, loss or expense (including reasonable attorney’s fees) resulting from any claims by third parties for loss, damage, or injury caused by any breach of a representation, warranty or covenant of this Agreement by the Indemnifying Party; provided, however, that the Indemnified Party provides the Indemnifying Party with: (a) prompt written notice of such claim or action; (b) sole control and authority over the defense or settlement of such claim or action; and (c) proper and full information and reasonable assistance to defend and/or settle any such claim or action, at the Indemnifying Party’s reasonable expense; provided, however, there shall be no obligation by the Indemnifying Party to indemnify the Indemnified Party where such claims result from the gross negligence or knowing and willful misconduct of the Indemnified Party. The Indemnified Party shall have the right, at its expense, to retain legal counsel and/or to participate in and monitor the defense of the claim, provided that the Indemnifying Party shall have the right to direct and control such defense, and the Indemnifying Party shall not settle any such claim or action without the Indemnified Party’s prior written approval (not to be unreasonably withheld in light of the nature of the claim or action and the terms of such proposed settlement).
10. Limitation of Liability. NEITHER PARTY SHALL BE LIABLE TO THE OTHER (OR TO ANY PERSON CLAIMING RIGHTS DERIVED FROM A PARTY’S RIGHTS HEREUNDER) FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OR LOST OR IMPUTED PROFITS OR ROYALTIES ARISING OUT OF THIS AGREEMENT OR ITS TERMINATION, WHETHER FOR BREACH OF WARRANTY OR ANY OBLIGATION ARISING THEREFROM OR OTHERWISE, WHETHER LIABILITY IS ASSERTED IN CONTRACT OR TORT (INCLUDING NEGLIGENCE AND STRICT PRODUCT LIABILITY) AND IRRESPECTIVE OF WHETHER A PARTY WAS ADVISED, HAD REASON TO KNOW OR KNEW OF THE POSSIBILITY THEREOF. IN ANY OCCURRENCE, A PARTY’S MAXIMUM LIABILITY ARISING OUT OF THIS AGREEMENT, WHETHER THE CAUSE OF ACTION ARISES IN CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE AMOUNTS PAID AND PAYABLE BY DMR TO PUBLISHER HEREUNDER IN CONNECTION WITH THE APPLICABLE ADVERTISING SALES SERVICES CAMPAIGN UNDER WHICH AN APPLICABLE CLAIM AROSE. THE FOREGOING SHALL NOT LIMIT A PARTY'S (A) PAYMENT OBLIGATIONS UNDER THE AGREEMENT; (B) INDEMNIFICATION OBLIGATIONS UNDER SECTION 5; (C) LIABILITY FOR ANY BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 9; OR (D) LIABILITY FOR ITS INFRINGEMENT OR MISAPPROPRIATION OF ANY PROPRIETARY RIGHTS OF THE OTHER PARTY.
11. Termination. Either party may terminate this Agreement immediately: (a) upon the material breach of any term or condition in this Agreement unless such breach is cured within thirty (30) calendar days following receipt of written notice to the breaching party; and/or (b) if the other party becomes insolvent, makes a general assignment for the benefit of creditors, files a voluntary petition in bankruptcy, suffers or permits the appointment of a receiver for its business or assets, becomes subject as a bankrupt to any proceedings under any bankruptcy or insolvency law, whether domestic or foreign, or has wound up or liquidated its business voluntarily or otherwise. Additionally, DMR may terminate this Agreement at any time upon not less than thirty (30) days’ prior written notice to PUBLISHER; provided, however, any Advertising placements agreed to pursuant to the Terms shall survive such termination in accordance with the terms and conditions set forth herein. Sections 1 and 2 of the Terms, and Sections 1, 2, 4, 6–10, 12, 16, and 17 shall survive any expiration or termination of this Agreement.
12. Marketing Activities. DMR may promote and market the Publisher Properties and PUBLISHER in marketing and sales materials in DMR’s reasonable discretion, but solely for purposes of promoting the availability of the Publisher Properties as an Advertising destination pursuant to this Agreement. DMR shall comply with PUBLISHER’s written branding guidelines (to the extent received) in connection with any such promotion.
13. Relationship of the Parties. It is understood and agreed that the parties hereto are independent contractors pursuant hereto, and nothing contained herein shall be construed or deemed to make the parties hereto partners or joint venturers, nor shall either party or any of its agents or employees be construed or deemed to be an employee of the other party hereto.
14. Confidential Information. Except as may be required in connection with filings with governmental agencies or courts or except as may be required under applicable law, PUBLISHER and DMR will keep strictly confidential and will not disclose to any other person or entity other than to its officers and employees on a must-know basis, or it its respective lawyers and accountants, the material terms and provisions of this Agreement. This provision will survive termination or expiration of this Agreement. Notwithstanding anything to the contrary herein, PUBLISHER agrees that DMR may, in connection with any marketing materials and presentations prepared by DMR, identify PUBLISHER as a PUBLISHER and describe the services provided hereunder.
15. Notices. Notices required under this Agreement shall be in writing and shall be delivered personally, by electronic mail (with receipt confirmation by recipient), by certified or registered mail or through overnight courier. Notice shall be deemed given when so delivered personally, or sent by electronic mail (with receipt confirmation by recipient), or if mailed by certified or registered mail, three (3) days after the date of deposit in the United States mail, or, if delivered by overnight courier, one (1) day after the date of deposit with a reputable overnight delivery service. Notices shall be sent to the address of the party set forth in the Business Terms Section of this Agreement, or such other address as shall have been specified by either party by written notice hereunder, and in the case of notice to DMR, with a copy to: c/o Business & Legal Affairs, Digital Media Rights, 243 West 30th Street, 11th Floor, New York, NY 10001.
16. Force Majeure. No delay or failure by a party hereto in the performance of any obligation of this Agreement shall be deemed a breach of this Agreement nor create a liability, if the same shall arise by reason of any cause beyond the reasonable control of the affected party, including, but not limited to acts of God, provided that the party so affected shall use its best efforts to avoid or remove such cause of nonperformance and continue performance as soon as practicable. In the event such cause exceeds thirty (30) calendar days, the party so affected may cancel this Agreement upon written notice and without further liability.
17. Governing Law and Jurisdiction. Any claim, dispute or controversy arising out of or relating to the validity, interpretation, performance or enforcement of this Agreement or any breach thereof that cannot be settled privately by the parties will be settled by arbitration. The parties select expedited arbitration using one arbitrator, to be a disinterested attorney specializing in advertising law, as the sole forum for the resolution of any dispute between them. The venue for arbitration will be New York City. The arbitrator may make any interim order, decision, determination, or award she/he deems necessary to preserve the status quo until he is able to render a final order, decision, determination or award. The determination of the arbitrator in such proceeding will be final, binding and non-appealable. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The prevailing party will be entitled to reimbursement for costs and reasonable attorney’s fees.
18. General. This Agreement: (a) is the entire agreement between the parties and supersedes all prior written or oral understandings with respect thereto; (b) may not be amended or modified except in writing by both parties; and (c) may be executed in counterparts and with facsimile or electronic signatures. A waiver of performance or breach of any provision of this Agreement shall not constitute a waiver of any subsequent performance or breach of the same or any other provision. If any provision of this Agreement shall be declared void, illegal or unenforceable, the remainder of this Agreement shall be valid and enforceable to the extent permitted by law. Any provision of this Agreement reasonably intended to survive, shall survive the termination or expiration of this Agreement. Either party may assign this Agreement with sixty days (60) prior written notice to the other party, provided that any third party Assignee, or subsidiary, parent, or affiliated company must assume all obligations, responsibilities, and duties under this Agreement.