NEXAGE MOBILE ASP PUBLISHER AD OPTIMIZATION AGREEMENT
1. This agreement (“Agreement”) is between You (“COMPANY”) and NEXAGE, Inc. (“NEXAGE”), a Delaware corporation, with its business offices located at 101 Arch Street Suite 1510 Boston, MA 02110. You or COMPANY means any entity identified in the Contact Us form submitted by same and/or any agency or network acting on its (or their) behalf, which shall also be bound by the terms of this agreement.
2. The Services:
(a) Scope: Subject to the terms and conditions of this Agreement, NEXAGE will provide a hosted advertisement optimization services (NEXAGE Services) for COMPANY to enable advertisement in COMPANY’s mobile services (“COMPANY Services”) to end users of COMPANY’s website and applications (hereafter “End Users”).
(b) Operation of the Services: NEXAGE will ensure that the NEXAGE Services are available to COMPANY and End Users throughout the Term. As between the parties, NEXAGE will be responsible for (i) operating, hosting, and making available the NEXAGE Services; (ii) collecting all advertising revenues if advertising is sold by NEXAGE advertising sales partner; and (iii) collecting all taxes associated with the sale of services and remitting such taxes to the appropriate taxing authorities if applicable; and COMPANY will be responsible for (i) the creation, marketing and promoting of the COMPANY Services; (ii) collecting all advertising revenues if advertising is sold by COMPANY; and (iii) collecting all taxes associated with the sale of services and remitting such taxes to the appropriate taxing authorities if applicable. NEXAGE will assist COMPANY to resolve problems or issues End Users may have with the NEXAGE Services.
3. Data and Information:
(a) NEXAGE shall provide COMPANY with access to online reports of NEXAGE Services.
(c) All data originating with COMPANY and owned by COMPANY that may be passed to NEXAGE by COMPANY to enable NEXAGE services is and will remain the property of COMPANY. NEXAGE may retain such data and use it as part of the NEXAGE services provided to COMPANY. NEXAGE may not share this data with any other party or use this data as part of the NEXAGE services provided to any other company without the express written permission of COMPANY. Notwithstanding, NEXAGE may store and use aggregate information derived from the delivery of the NEXAGE Services for the purpose maintaining aggregate audience reports and advertising analytics, provided that there shall be no reference to COMPANY as the source of any such information and that such information is in no way attributed to COMPANY. Any data originating with the end user, the end user device, the carrier, or the network that is received by NEXAGE during operation of its systems and delivery of its services together with any information or additional data derived from that data is the property of NEXAGE.
4. COMPANY Responsibilities:
(a) Subject to the terms and conditions of this Agreement, COMPANY agrees to provide available advertising inventory on COMPANY Content.
(b) COMPANY agrees (i) to install and incorporate the technology, including any updates, fixes or patches provided by Nexage from time to time, in the COMPANY Content, and (ii) to maintain throughout the Term all software codes and tags necessary for NEXAGE to serve Advertising.
(c) COMPANY shall not alter, modify or otherwise interfere with the operation of any of the Advertising or any link contained within any click-through Advertisement. COMPANY shall not manipulate technology or use any mechanical or other means to artificially inflate impressions or click-through traffic counts, and shall not encourage or authorize others to do so. In addition, COMPANY shall promptly notify NEXAGE if COMPANY suspects that any third party may be tampering with, abusing or manipulating the technology or the Advertising on the COMPANY Content. In the event of misuse and/or abuse of technology or Advertising by COMPANY, COMPANY shall not be entitled to any revenue associated with the applicable campaign(s). COMPANY acknowledges and agrees that NEXAGE shall, in its sole discretion, regularly review impressions, click-throughs or other actions with respect to Advertising. No revenue share will become due to COMPANY for actions that NEXAGE determines, in its sole discretion, are fraudulent or improper. In addition, each party reserves the right to terminate this Agreement immediately, without giving the other party an opportunity to cure, if terminating party reasonably determines that the other party has in any way manipulated or used artificial means to increase or decrease impressions, click-throughs, reporting of impressions and click-throughs, or other actions, or has encouraged or authorized others to do so.
(d) COMPANY agrees that it shall be solely and exclusively responsible for the COMPANY Content, and that NEXAGE has no responsibility, to review or approve the COMPANY Content.
5. Fees and Revenue Share:
The parties acknowledge and agree that advertising in various formats will be served in the COMPANY 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. COMPANY or NEXAGE and their Ad partners will sell advertising in such advertising spaces and NEXAGE will serve advertising in such advertising spaces. All Net Advertising Revenue generated from the sales of such advertising space shall be shared as follows: 80% to the COMPANY and 20% to NEXAGE. Advertising served through NEXAGE Real Time Bidding (“RTB”) Exchange may be subject to an additional fee. If applicable, COMPANY will be advised of such in writing and this fee will be deducted prior to the calculation of any revenue share.
(a) Payment Terms. All Net Advertising Revenue (as defined below) collected by NEXAGE shall be paid within 45 days after the end of the month in which the relevant Net Advertising Revenue was received by NEXAGE. If revenue share in any given month is less than $100, the payment will not be made until the total revenue share is accumulated to reach or over $100.
(b) Audit. Each party shall keep accurate and complete books and records relating to the performance of its obligations under this Agreement and any Net Advertising Revenue generate and/or collected by it under this Agreement. Either party, at its expense, and upon 10 days’ advance written notice to the other, shall have the right once during the Term of this Agreement and once during the twelve months after the end of the Term, to examine or audit books and records of the other party relating to revenues generated under this Agreement, at such other party’s offices during normal business hours, in order to verify the figures reported in any report and the amounts owed to such party under this Agreement. In the event any such audit reveals an underpayment of any amounts due under this Agreement, the auditing party shall be entitled to prompt payment of all amounts then due. In the event any audit shall reveal an underpayment of 5% of the amounts due for any calendar month, the audited party will reimburse the auditing party the reasonable cost of such audit together with the underpayment.
(c) Definition of Net Advertising Revenue: For purposes of this Agreement, “Net Advertising Revenue” shall mean the total revenues collected by NEXAGE from the sale of advertising space to any third party via Ad Network partners, less any charges for taxes, refunds, Ad Network revenue share, and advertising agency fees, if any.
7. Press Release: NEXAGE and COMPANY may issue a joint press release based upon the relationship described in this Agreement. Language within the press release must be mutually agreed upon and may include quotes by both parties.
8. Additional Marketing & Promotion: NEXAGE and COMPANY may cooperate in mutually agreed upon promotional and marketing activities in connection with the COMPANY Services outlined below:
- During the term of the agreement, NEXAGE may, at its discretion, disclose on its website and in sales materials, that COMPANY is a Customer.
- COMPANY gives NEXAGE permission to publish a non-confidential 1-2 page Case Study on the COMPANY’s integration and usage of COMPANY Services. The content of the Case Study must be mutually agreed upon and may include quotes by both parties.
9. Advertising Policy & Guidelines: NEXAGE agrees to only serve advertisements that adhere to COMPANY’s Advertising Policy & Guidelines attached hereto as Exhibit B.
10. Block List: COMPANY will establish its own “block” list of its competitors and top advertisers which NEXAGE will bar from being served on the COMPANY Services. COMPANY will also have the ability to add to this list on an ongoing basis with written notice to NEXAGE. The advertiser and competitor block list as of the date of this Agreement is attached hereto as Exhibit C.
11. Warranty and Disclaimer: NEXAGE represents and warrants to COMPANY that: (i) NEXAGE has the power and authority to enter into and perform its obligations under this Agreement; (ii) to the best of NEXAGE’s knowledge, it currently has no restrictions that would impair its ability to perform its obligations under this Agreement; (iii) NEXAGE has all rights necessary to create, host, operate and/or provide the NEXAGE Services; (iv) the NEXAGE Services will not violate or infringe any common law or statutory right of any person or other entity including, without limitation, any contractual rights, proprietary rights, trademark, service mark or patent rights, or any rights of privacy or publicity, nor will it violate any law or regulation, nor shall it be unlawful or defamatory, nor will it contain any instructions, recipes or formulas that, if implemented, would result in injury; (v) NEXAGE will comply with all federal, state and local laws and regulations applicable to the performance of its obligations and the operation of the NEXAGE Services hereunder and will obtain all applicable permits, permissions, and licenses required of it in connection with its obligations and the operation of the NEXAGE Services hereunder; and (vi) NEXAGE will ensure that its use of End-User Information will comply with all federal, state and local laws and regulations. EXCEPT FOR THE FOREGOING, 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.
a) By NEXAGE. NEXAGE shall indemnify, defend and hold harmless COMPANY, and each of its parents, subsidiaries and affiliates and their respective directors, officers, employees, agents, successors, and assigns 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) (“Liabilities”) paid or incurred by any of them in connection with claims by any third party to the extent that such Liabilities arise out of or relate to (i) the NEXAGE Services; or (ii) NEXAGE’s breach of any warranty, representation, covenant or agreement hereunder; provided that NEXAGE is given prompt notice of any such claim, reasonable cooperation and sole control over defense and settlement thereof.
b) By COMPANY. COMPANY shall indemnify, defend and hold harmless NEXAGE, its parents, subsidiaries and affiliates and each of their respective directors, officers, employees, agents, successors, and assigns against any and all Liabilities paid or incurred by any of them in connection with claims by any third party to the extent such Liabilities arise out of or relate to or are attributable to COMPANY’s breach of any warranty, representation, covenant or agreement hereunder; provided that COMPANY is given prompt notice of any such claim, reasonable cooperation and sole control over defense and settlement thereof.
13. Confidentiality: Each party agrees that all business, technical and financial information it obtains from the other party that is marked “Confidential” or “Proprietary,” 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. 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 9 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.
14. Limited Liability: EXCEPT WITH REGARD TO THEIR RESPECTIVE INDEMNIFICATION OBLIGATIONS UNDER SECTION 8 ABOVE, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL THEORY FOR (I) ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (II) ANY AMOUNT IN AGGREGATE OF THE REVENUE RECEIVED BY NEXAGE IN THE 12 MONTHS PRIOR TO THE DATE ON WHICH THE CAUSE OF ACTION AROSE OR (III) ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.
15. Term and Termination: 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, or unless terminated sooner by the mutual agreement of both parties. The Term and Subsequent Terms (if any) shall be referred to collectively as the “Term.” Notwithstanding the foregoing, either party may terminate this Agreement immediately upon written notice at any time during the Term 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 that breach within thirty (30) days after receipt of written notice describing the same.. 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.
16. 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, return receipt requested, and addressed as follows or such other address as such party last provided to the other by written notice.
To NEXAGE: To COMPANY:
101 Arch Street, Ste 1510 Address submitted on contact form.
Boston, MA 02110
Attention: Legal Counsel
17. 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 create a relationship of joint venture, principal and agent, partnership or similar relationship between the parties and neither party shall hold itself out to the contrary. 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. Neither party shall assign this Agreement in whole or part without the prior written consent of the other party except that either party may assign this Agreement in connection with a merger, reorganization or sale of a substantial all of a party’s assets. 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 laws provisions thereof. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover reasonable costs and reasonable attorneys’ fees. This Agreement may be executed in separate counterparts which, taken together, shall constitute one agreement. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof. Ambiguities, inconsistencies or conflicts in this Agreement will not be strictly construed against either party but will be resolved by applying the most reasonable interpretation under the circumstances, giving full consideration to the parties’ intentions at the time this Agreement is entered into and common practice in the industry.