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MASTER SERVICES AGREEMENT
USE OF THE SERVICES INDICATES THAT THE COMPANY (“PUBLISHER”) FOR WHICH THE ACCOUNT WAS CREATED UNDER THE ONLINE REGISTRATION FORM ACCEPTS THESE TERMS AND CONDITIONS. IF SUCH COMPANY ACCEPTS THESE TERMS AND CONDITIONS, AND YOU ARE AUTHORIZED TO EXECUTE AGREEMENTS ON THE COMPANY’S BEHALF, PLEASE CLICK THE “ACCEPT TERMS AND CONDITIONS” BUTTON.
a) Subject to the terms and conditions of this Agreement, Tremor shall provide Ad sale, Ad management and Ad delivery services (“Services”) on behalf of Publisher. The Services shall be provided in connection with Web sites, applications or other platforms made available through a Mobile Device, in each case as approved by Tremor (“Publisher Properties”). “Ad” means materials or messages provided to Tremor by advertisers (“Advertisers”) in a Tremor supported format, currently in use or hereafter developed. “Mobile Device” means a mobile phone, tablet, personal digital assistant or other wireless handheld device to which Ads can be delivered.
b) Publisher hereby grants to Tremor the right to (i) sell Ads on behalf of the Publisher Properties, (ii) display, transmit and reproduce content and materials contained on the Publisher Properties, (“Publisher Content”) as contemplated herein, and (iii) access Publisher Properties and Web servers as necessary to perform the Services.
c) Subject to the terms and conditions of this Agreement, Tremor shall purchase media placements (“Inventory”) on the Publisher Properties. The rates for such purchase shall be solely determined by Tremor.
d) During the term of this Agreement, any Tremor Affiliate (defined below) may avail itself of the provisions of this Agreement by agreeing to being bound by the provisions hereof. Upon such agreement, such Tremor Affiliate shall be solely liable for any breach of this Agreement by such Tremor Affiliate. “Tremor Affiliate” shall mean entity directly or indirectly controlling, controlled by or under common control with Tremor Video, Inc.
e) Tremor does not guarantee or warrant to Publisher under this Agreement that (i) Ads will be available for delivery or (ii) Publisher will earn any amount of revenue.
2. REPORTING AND MEASUREMENT.
a) Any and all traffic or other data in connection with Tremor’s performance of the Services will be based solely upon reports generated by Tremor’s ad serving and application technologies (collectively, “Ad Serving Technology”).
b) For reporting purposes only, Tremor shall use reasonable efforts to make available through the Ad Serving Technology interface the applicable rates, the number of Ad impressions, clicks and other data in connection with delivery of Ads to the Publisher Properties.
4. PROPRIETARY RIGHTS..
Publisher shall retain all right, title and interest in and to the Publisher Properties, Publisher trademarks, and Publisher Content. Tremor shall retain all right, title, and interest in and to all of Tremor’s business and intellectual property, including, without limitation, its Ad Serving Technology, categorizations of the Publisher Content developed by Tremor, categorizations, algorithms, and analytics derived by Tremor Video from user data collected pursuant to this Agreement, or other proprietary materials, documentation or works developed, created, delivered or used by Tremor, and any and all Services provided hereunder (including all software, source code, and any derivative works, modifications, improvements and enhancements thereof or thereto). All rights of a party not expressly granted under this Agreement are expressly reserved by such party.
5. PUBLISHER OBLIGATIONS.
a) Publisher agrees that it shall not:
(i) place Tags or Ads on any site, page or location which have not been approved in advance by Tremor;
(ii) place any Ads below-the-fold in an auto-play state;
(iii) place any Ads in an auto-play state with the sound off;
(iv) use any form of adware, spyware or other nefarious computer programs or tools in the delivery of Ads;
(v) infringe the trademark, copyright, trade secret, privacy, publicity, or other rights of any third party through the Publisher Properties;
(vi) generate automated, fraudulent or otherwise invalid impressions or clicks on any of the Publisher Properties;
(vii) place Ads proximately to any content that (a) would reasonably be considered libelous, pornographic, obscene, defamatory, hateful, blasphemous, objectionable or to encourage illegal behavior or (b) contains violence, explicit language, substance abuse, gambling or distasteful content, (any of the foregoing content shall be determined not to be “clean”);
(viii) place Ads through any online advertising exchange; or
(ix) use the Services in violation of any applicable laws, rules, or regulations, or in a manner that infringes the trademark, copyright, trade secret, privacy, publicity, or other rights of any third party in any way or for any purpose.
b) Publisher agrees that it shall:
(i) provide a reasonable balanced delivery of Ad calls;
(iii) make available Inventory hereunder that is only organic traffic to the Publisher Properties and not artificial traffic generated by Publisher, such as pop-ups, pop-unders or interstitials;
(v) notify Tremor if any cookie-based or other similar ad serving technologies used by Tremor on the Publisher Properties are being used to collect data on any child-directed site, or the portion of any general audience site that is child-directed so as to enable Tremor to comply with terms of the Children's Online Privacy Protection Act;
(vi) be responsible for the integrity of all content, materials, data and information that is provided to Tremor by Publisher under this Agreement; and
(vii) promptly notify Tremor in writing of any unauthorized access or use of the Services of which it becomes aware.
Publisher expressly waives all rights to payments for any and all impressions delivered during the term of this Agreement in the event that Publisher breaches this Section 5.
6. REPRESENTATIONS AND WARRANTIES.
a) Each party warrants and represents at all times that (i) it has the right, power and authority to enter into this Agreement, (ii) it is duly organized and validly existing and in good standing under the laws of the state of its incorporation or formation, and (iii) the execution of this Agreement by such party, and the performance by such party of its obligations and duties hereunder, do not and will not violate any agreement to which such party is a party or by which it is otherwise bound.
b) Publisher represents and warrants at all times that:
(i) Publisher owns and/or has the right to use all Publisher Content, Publisher Properties, and any Publisher intellectual property used in connection with this Agreement, and each of the foregoing do not and will not violate any laws, rules, regulations, or third-party rights;
(iii) except as disclosed to Tremor in writing, none of the Publisher Properties are child-directed;
(iv) Publisher shall not, nor will it authorize or encourage any third party to, directly or indirectly interfere or attempt to interfere with the proper working of the Services; and
(v) with respect to mobile applications, that each mobile application shall comply with all applicable legal, regulatory, and operator requirements, including without limitation, as to (a) the user’s agreement to download it, (b) the inclusion of advertising on it, and (c) the uninstallation and removal of the mobile application from the Mobile Device.
8. TERM AND TERMINATION..
a) The initial term of this Agreement shall commence as of the Effective Date and shall remain in effect for a one (1) year period. Thereafter, this Agreement shall automatically renew for successive terms of one (1) year unless terminated in accordance with the provisions hereof.
b) Either party may terminate this Agreement for any reason or no reason upon sixty (60) days written notice to the other party. At any time during the term, this Agreement shall terminate ten (10) days after a party’s receipt of notice that such party is in material breach of any of the terms or conditions set forth herein, unless such party cures such breach within said ten (10) day period. Any obligations of the parties that must survive in order to give effect to their meaning or that contemplate performance by a party following the termination or expiration of this Agreement shall survive any termination or expiration the Agreement. In addition to any other remedies available at law, if Tremor reasonably determines that Publisher is using the Services in a manner that may damage or cause injury to the Services or reflect unfavorably on the reputation of Tremor, Tremor may terminate this Agreement with immediate effect upon notice to Publisher or suspend Publisher’s access to and use of the Services. Upon termination, Publisher shall immediately cease all use of and remove all Tags, and all other Tremor software.
a) Tremor agrees to pay Publisher fees for Ads served by Tremor on the Publisher Properties, based upon the applicable rates as determined by Tremor in its sole discretion. Tremor shall pay Publisher sixty (60) days following the end of the applicable calendar month in which such fees were earned. All payments shall be made by Tremor based solely upon data derived from the Tremor Ad Serving Technology.
b) In no event shall Tremor be liable to Publisher for (i) any earned balance less than two-hundred and fifty dollars ($250.00) per month; (ii) any payment based on any amounts that resulted from invalid clicks or impressions on Ads, as reasonably determined by Tremor; (iii) any clicks or impressions originating from Publisher’s IP address, computers or Mobile Devices under Publisher’s control; (iv) any Ad impressions that are not clean; or (v) any violation by Publisher of this Agreement.
c) Other than income taxes incurred by Tremor as a result of the sale of Inventory to its Advertisers, Publisher is solely liable for any and all taxes relating to the placement of the Ads on the Publisher Properties.
10. CONFIDENTIAL INFORMATION.
a) Except as otherwise set forth herein, Recipient (defined below) shall only disclose the Confidential Information (defined below) to Recipient’s employees, officers, directors and agents who have a need to know for the purpose of fulfilling Recipient’s obligations under this Agreement. Recipient shall use the Confidential Information solely to perform its obligations under this Agreement and not for any other purpose. Recipient shall employ all reasonable steps to protect the Confidential Information from unauthorized or inadvertent disclosure or use, including, without limitation, all steps that Recipient takes to protect Recipient’s own confidential information. Notwithstanding the foregoing, the Recipient may disclose Confidential Information of the Discloser (defined below) as required by law or government regulation, or as necessary to establish the rights of either party under this Agreement; provided, however, that both Discloser and Recipient will stipulate to and cooperate in obtaining any orders necessary to protect such information from public disclosure.
b) “Confidential Information” means the terms of this Agreement (but not its existence), and any information disclosed by one party (“Discloser”) to the other party (“Recipient”) that is designated as “Confidential”, “Proprietary” or some similar designation, or given the nature of the information or the circumstances surrounding its disclosure should reasonably be considered confidential or proprietary. Without limiting the generality of the foregoing, all Tremor software, technology, programming, specifications, access logins/passwords, pricing, documentation and materials relating to the Services shall be deemed Confidential Information of Tremor. Confidential Information shall not include information that (i) is or becomes generally available to the public through no fault of the Recipient; (ii) was in the Recipient’s possession, free of any obligation of confidence at the time of the Discloser’s communication; (iii) was communicated to the Recipient free of any obligation of confidence by a third party, which third party was free to make such disclosure without breach of any obligation; or (iv) is verifiably developed by the Recipient without the benefit of the information provided by the Discloser. For the avoidance of doubt, the identification of Publisher as a customer of Tremor and user of the Services shall not be deemed Confidential Information of Publisher.
EXCEPT AS SET FORTH IN SECTION 6 OF THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS OF THE SERVICES FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. TREMOR SHALL NOT BE LIABLE FOR: (1) ANY MEDIA ON WHICH THE ADVERTISING APPEARS; (2) THE CONTENTS OF ANY ADVERTISING; (3) ANY LOSS, COST, DAMAGE OR EXPENSE OR LIABILITY (INCLUDING COUNSEL FEES) INCURRED BY PUBLISHER IN CONNECTION WITH PUBLISHER'S USE OF THE SERVICES; OR (4) ANY UNAVAILABILITY OR INOPERABILITY OF THE SERVICES, TELECOMMUNICATIONS SYSTEMS OR THE INTERNET, TECHNICAL MALFUNCTION, COMPUTER ERROR, CORRUPTION OR LOSS OF INFORMATION, TIMELINESS OF THE DELIVERY OF REPORTING DATA, OR OTHER INJURY, DAMAGE OR DISRUPTION OF ANY KIND. TREMOR DISCLAIMS ALL LIABILITY ARISING FROM (I) PUBLISHER’S OTHER SERVICE PROVIDERS WHOSE SERVICES MAY BE USED IN CONJUNCTION WITH THE SERVICES OR (II) CAUSES BEYOND THE REASONABLE CONTROL OF TREMOR.
12. INDEMNIFICATION Publisher shall indemnify, defend and hold harmless Tremor, and its officers, directors, employees and agents from and against any and all costs, liabilities, losses and expenses, including, without limitation, reasonable attorneys’ fees, resulting from any claim, suit, action or proceeding brought by any third party against Tremor that arises out of or related to (i) the Publisher Content or Publisher Properties, (ii) breach by Publisher of any of Publisher’s representations, warranties or obligations set forth in this Agreement, and (iii) Publisher’s use or misuse of the Services. Tremor shall be entitled to participate at its own expense in the defense of any such claim. Publisher will not acquiesce to any judgment or enter into any settlement that adversely affects Tremor’s rights or interests without the prior written consent of Tremor, which consent shall not be unreasonably withheld.
13. LIMITATION OF LIABILITY.
14. MARKETING AND PUBLICITY.
Publisher hereby grants Tremor a world-wide, non-exclusive, royalty-free right and license to use Publisher’s name, URLs of Publisher Properties, mobile application names, and trademarks solely to identify Publisher as a customer of Tremor and user of the Services. In addition, Tremor may reproduce screen shots of pages of the Publisher Properties for the purpose of preparing sales materials. Neither party will issue any press releases concerning this relationship without the prior written consent of the other party, not to be unreasonably withheld, conditioned or delayed.
This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, excluding application of its conflicts of law principles. Any action brought to enforce the terms of this Agreement shall be brought within the state and federal courts in New York, New York and Publisher hereby expressly consents to the jurisdiction of any such court. The parties are independent contractors. Nothing in this Agreement will be construed to place the parties in any partnership, agency or joint venture relationship. Neither party may assign or otherwise transfer this Agreement
without the other party’s written consent, which shall not to be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, either party may assign this Agreement without the other party’s written consent, in the case of merger, acquisition or sale of all, or substantially all, of the assigning party’s assets, stock or business. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties’ respective successors and permitted assigns. Any notice required to be delivered shall be deemed delivered: by means of a general notice on the Service; three (3) days after deposit in U.S. mail; one (1) business day if sent by overnight courier service; and immediately if sent electronically or by fax or delivered in person. If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force. The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement if the delay or failure is due to circumstances beyond the reasonable control of the non-performing party. This Agreement constitutes the complete agreement between the parties and supersedes all prior agreements or representations, written or oral, concerning the subject matter of this Agreement. This Agreement may not be modified or amended except in writing signed by a duly authorized representative of each party.