NEXAGE MOBILE AD SERVING TERMS AND CONDITIONS
NEXAGE provides its customers with a suite of mobile advertising services and solutions within its mobile advertising exchange platform, including the mobile ad serving service which is the subject of this Agreement.
COMPANY is a mobile publisher and/or application developer that owns and/or controls advertising inventory within a mobile web site or mobile application. COMPANY wishes to use the NEXAGE Ad Delivery Service pursuant to these NEXAGE Ad Server Terms and Conditions (the “Terms”) and the NEXAGE Mobile Ad Serving Agreement Cover Sheet (the “Cover Sheet”) together referred to as the “Agreement”.
1. NEXAGE Ad Delivery Service:
(a) Scope: Subject to the terms and conditions of this Agreement, NEXAGE will provide the advertisement serving services (the “NEXAGE Ad Delivery Service”) to enable uploading advertising material for advertisement in COMPANY’s mobile services to end users of COMPANY’s website(s) and application(s).
(b) Operation of the Services: NEXAGE will provide the NEXAGE Ad Delivery Service to COMPANY throughout the Term.
(c) Certain Definitions:
(i) “Advertising Optimization Agreement”: An agreement between NEXAGE and COMPANY relating to the provision of COMPANY advertising inventory to NEXAGE to sell and optimize via the NEXAGE mobile advertising exchange.
(ii) “Direct Sold Ads”: Ads sold to third party advertisers directly by Company.
(iii) “House Ads”: Ads for COMPANY’s owned and operated sites and applications.
(iv) “Monthly Volume”: The total monthly impressions for the application(s) or mobile web site(s) of the COMPANY which may be made available for ad optimization and monetization pursuant to the terms of an Advertising Optimization Agreement.
(vi) “Served Ad” or “Ads Served”: An instance in which an advertisement is served by the NEXAGE Ad Delivery Service in response to an automated request made by a user’s browser or COMPANY applications for advertising material.
(vii) “Total Monthly Impressions”: The total ad requests provided by COMPANY to NEXAGE inclusive of requests for ad serving and requests provided pursuant to an Advertising Optimization Agreement.
Reports of aggregate performance and campaign planning will be available on the User Interface for one (1) year after the end of a campaign. Campaign-level reports generated by the NEXAGE Ad Delivery Service of campaign performance will be available on the COMPANY accessible user interface for at least two (2) months after the conclusion of a campaign’s flight. The User Interface may change from time to time upon prior written notice to COMPANY.
(a) COMPANY shall have the right to use all data collected by the NEXAGE Ad Delivery Service on COMPANY’s behalf in connection with this Agreement. Other than as necessary to perform its obligations under this Agreement, NEXAGE’s right to use such data is limited to the circumstances set forth in subsection (b) and (c) below.
(b) NEXAGE may submit its technology underlying its Ad Delivery Service (the “Ad Delivery Technology”) to regular certification testing by independent third parties (e.g., IAB and BPA). COMPANY acknowledges that NEXAGE and shall have the right to regularly provide, on a confidential basis, original log data to such third parties for certification purposes. NEXAGE confirms that neither COMPANY’s name and address nor the names and addresses of its customers shall be disclosed in connection with such certification testing.
(c) NEXAGE may prepare and disclose overall information about the NEXAGE Ad Delivery Service for their own business purposes. Such information may include, without limitation, aggregate statistics about the NEXAGE Ad Delivery Service, online advertising trends, and audience demographics. NEXAGE shall have the right to include COMPANY’s data in its preparation of the overall information, so long as the disclosed information is prepared in a manner that avoids the identification of COMPANY or its data.
(a) COMPANY shall ensure that the information communicated by its mobile web sites and/or applications to the Ad Delivery Technology shall not contain information that NEXAGE could use or recognize as personally-identifiable about any user or other individual.
5. Proprietary Rights:
NEXAGE, as applicable, retain all rights in and to NEXAGE Ad Delivery Service, Ad Delivery Technology and User Interface, including any enhancements thereto made by NEXAGE or its Subcontractor during the Term. COMPANY has no rights in or to the Ad Delivery Service, Ad Delivery Technology or User Interface beyond the limited rights of access and use contemplated by this Agreement.
6. COMPANY Responsibilities:
(a) Advertiser Relations: In accordance with Sections 3 and 4, COMPANY is solely responsible for obtaining from its advertisers the necessary rights to allow NEXAGE to store and deliver advertising content; and COMPANY shall require that its advertisers provide a privacy notice and receive consent from users when personally-identifiable information is collected about them, whether in the advertisement or at the advertiser’s website to which users are directed when they click on the advertisement.
(b) Password Security: COMPANY acknowledges that access to the User Interface is through a unique user name and password (“Login Credential”) that is individual to each of COMPANY’s staff designated to have access. COMPANY shall employ best practices to safeguard its Login Credentials from loss, theft or misuse. In no event may a Login Credential be used by anyone other than the person to whom assigned.
(c) Use of Services: COMPANY shall be solely responsible for any and all acts or omissions of COMPANY and its agents and customers related to the Ad Delivery Service and the User Interface.
(d) Advertising and Target Site Content: The advertising delivered under this Agreement, COMPANY’s advertising activities and the Target Sites’ content and business practices shall not be deceptive, misleading, obscene, defamatory or illegal.
(e) House Ads: All House Ads run by COMPANY pursuant to this Agreement shall be run under an advertiser name provided by NEXAGE.
(f) Ad Tags: COMPANY will label its ad placements by adding Ad Tags to each web or application page of a web site or application on which an ad placement appears.
7. Representations and Warranties:
Each party represents and warrants to the other that (i) it has the full power and authority to enter into this Agreement; and (ii) its execution, delivery and performance of this Agreement will not violate, conflict with or result in a material default under any other contract or agreement to which such party is a party or by which it is bound.
8. Service Fees:
The parties acknowledge and agree that advertising in various formats will be served through the NEXAGE Ad Delivery Services, typically, but not limited to, text banner ads, image banner ads on mobile web pages, SMS, games, applications and video ads within the video content. Fees for the NEXAGE Ad Delivery Services are reflected on the Cover Sheet to these terms and conditions.
9. Payment Terms:
(a) At the end of each calendar month of the term, NEXAGE will invoice COMPANY for the fees due from the prior month’s activity (consisting of fees due from ad delivery, use of optional features and services). Fees will be invoiced in U.S. dollars, and will be calculated solely on the amounts reported by the NEXAGE Ad Delivery Technology. Invoices will be sent to the COMPANY, and are payable in full in U.S. dollars within thirty (30) days following the date of the invoice.
(b) All payments shall be made by electronic funds transfer, check or wire transfer, payable to NEXAGE, INC. at the address designated on the invoice. COMPANY is responsible for paying all taxes applicable to receipt of the NEXAGE Ad Delivery Service. Payments hereunder shall be made without deduction for withholding taxes. Late payments will be subject to late fees at the rate of 1.5% per month, or if lower, the maximum rate allowed by law. In no event shall COMPANY’s obligation to pay fees when due be subject to set off.
(c) COMPANY’s objections to an invoice should be raised promptly, as any objection not notified in writing to NEXAGE within two (2) weeks following COMPANY’s receipt of the invoice shall be deemed waived. COMPANY remains obligated to pay all undisputed amounts when due.
(d) If COMPANY fails to pay undisputed fees invoiced by NEXAGE within two (2) months following the payment due date, NEXAGE shall have the option, without prior notice or warning, (i) to terminate this Agreement, or (ii) to deactivate COMPANY’s access to the User Interface, or (iii) to suspend performance of the Ad Delivery Service. In the case of (ii) and (iii), service will not be restored until COMPANY pays all overdue amounts, and the costs, if any, incurred by NEXAGE in collecting the undisputed past due fees (e.g., attorney’s fees and collection costs).
10. Warranty and Disclaimer:
EXCEPT AS SET FORTH IN THIS AGREEMENT, NEXAGE MAKES NO WARRANTY OF ANY KIND AND HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
The parties agree to indemnify, defend and hold each other harmless against any and all judgments, claims, liabilities, settlements, penalties, costs and expenses (including reasonable attorneys’ fees, whether incurred as the result of a third party claim or a claim to enforce this provision) (collectively, “Liabilities”) paid or incurred by any of them in connection with claim, suit, action or proceeding (each, an “Action”) by any third party to the extent such Actions arise out of or relate to or are attributable to the breach of any warranty, representation, covenant or agreement hereunder; provided that prompt notice and reasonable cooperation is given by the party to be indemnified, and the indemnifying party shall maintain sole control over defense and settlement thereof.
Each party agrees that all business, technical and financial information it obtains from the other party is the confidential property of the disclosing party (“Proprietary Information” of the disclosing party). Except as expressly allowed herein or as required by law, regulation or court order, the receiving party will hold in confidence and not use or disclose any Proprietary Information of the disclosing party during the Term or for one (1) year thereafter. Each party will be deemed to have met its obligations hereunder if it treats the other party’s Proprietary Information with the same degree of confidentiality it affords its own sensitive business information, whereas it shall be treated at least with reasonable care. Upon termination or expiration of this Agreement, or at the request of the disclosing party, the receiving party shall (at its option) return the Proprietary Information to the disclosing party, or destroy it and, upon the disclosing party’s request, certify that it has taken such action. The receiving party shall not be obligated under this Section 12 with respect to information the receiving party can document: (i) is or has become readily publicly available without restriction through no fault of the receiving party or its employees or agents; (ii) is received without restriction from a third party lawfully in possession of such information; (iii) was rightfully in the possession of the receiving party without restriction prior to its disclosure by the other party; or (iv) was independently developed by employees or consultants of the receiving party without access to such Proprietary Information.
13. Limited Liability:
NEXAGE SHALL NOT BE LIABLE TO COMPANY OR ANY THIRD PARTY FOR ANY LOSSES INCURRED IN CONNECTION WITH THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE AVAILABILITY, OPERATION OR USE OF THE AD DELIVERY SERVICE, AD DELIVERY TECHNOLOGY, USER INTERFACE, OR THE ADVERTISING OR DATA SUPPLIED HEREBY. UNDER NO CIRCUMSTANCES SHALL NEXAGE BE LIABLE TO COMPANY OR ANY THIRD PARTY FOR ANY LOSSES, COSTS OR DAMAGES (WHETHER DIRECT OR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY) INCURRED IN CONNECTION WITH THE AVAILABILITY, OPERATION OR USE OF ANY THIRD PARTY SERVICES OR THE ACTS OR OMISSIONS OF ANY THIRD PARTY VENDORS. NEITHER PARTY SHALL BE LIABLE UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL THEORY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, ARISING OUT OF OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF, EXCLUDING THE INDEMNIFICATION OBLIGATIONS EXPRESSLY PROVIDED HEREIN. EITHER PARTY’S AGGREGATE LIABILITY FOR ALL CLAIMS ARISING HEREUNDER SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID AND PAYABLE BY COMPANY TO NEXAGE DURING THE THEN-PRIOR TWELVE (12) MONTH PERIOD PRIOR.
14. Term and Termination:
(a) This Agreement shall have a term of twelve (12) months beginning on the Effective Date (the “Term”), unless terminated earlier as provided in this Agreement. This Agreement will renew automatically for subsequent twelve (12) month terms (“Subsequent Terms”) unless notice of non-renewal is received at least thirty (30) days prior to the expiration of the then-current term. The Term and Subsequent Terms (if any) shall be referred to collectively as the “Term.”
(b) Notwithstanding the foregoing, at any time during the Term either party may terminate this Agreement without cause upon thirty (30) days written notice or immediately upon written notice if the other party is in material breach of any term, condition, warranty or covenant of this Agreement, provided that the breaching party fails to cure such breach within thirty (30) days after receipt of written notice describing the same. NEXAGE may modify these Terms at any time without liability and COMPANY’s use of the NEXAGE Ad Delivery Service after notice that these Terms have changed constitutes COMPANY’s acceptance of the modified Terms.
(c) Any and all provisions or obligations contained in this Agreement which by their nature or effect are required or intended to be observed or performed after termination of this Agreement will survive the expiration or termination of this Agreement and remain binding upon and for the benefit of the parties, their successors and permitted assigns.
(d) Following the expiration or earlier termination of this Agreement, COMPANY shall promptly pay all amounts due and still owing to NEXAGE. On the date of expiration or termination, COMPANY shall cease to use the User Interface, and shall immediately remove from and cease to use all Ad Tags placed on the Target Sites; provided, however, that Ads Served following the expiration or earlier termination of this Agreement will be invoiced in accordance with the terms of this Agreement. All expenses incurred by NEXAGE in its efforts to remove the Ad Tags will also be invoiced to COMPANY. Failure to remove the Ad Tags more than twelve (12) weeks following the expiration or termination of this Agreement shall be deemed a new offer by COMPANY to enter into a new agreement on the same terms as the Agreement, which NEXAGE can accept at its option.
15. Notice: All notices and requests in connection with this Agreement shall be deemed given when personally delivered, upon delivery via overnight courier (e.g., FedEx), or certified or registered mail, return receipt requested, and addressed to the primary and billing contact referenced on the Cover Sheet.
16. Miscellaneous: Each party shall be and act as an independent contractor and not as partner, joint venturer, or agent of the other. Nothing contained herein shall be deemed to allow either party to create or assume any obligations on behalf of the other party for any purpose whatsoever. This Agreement and the rights, obligations and licenses herein, shall be binding upon, and inure to the benefit of, the parties hereto and their respective heirs, successors, assigns, and personal representatives. This Agreement, including all appendices hereto, contains the entire understanding of the parties regarding its subject matter and supersedes any and all other agreements and understandings, whether oral or written, with respect to the subject matters covered herein. No changes or modifications or waivers are to be made to this Agreement unless evidenced in writing and signed for and on behalf of both parties. If any portion of this Agreement is held to be illegal or unenforceable by a court of competent jurisdiction, that portion shall be restated, eliminated or limited to the minimum extent necessary so that this Agreement shall reflect as nearly as possible the original intention of the parties and the remainder of this Agreement shall remain in full force and effect. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts without regard to the conflicts of law provisions thereof. This Agreement may be executed in separate counterparts which, taken together, shall constitute one agreement.