Media Display Advertising Publisher Agreement
This Media Display Advertising Publisher Agreement (“Agreement”) is between Conversant, Inc. (“Conversant”) with its primary address at 30699 Russell Ranch Road, Suite 250, Westlake Village, California, 91362 and publisher (“Publisher”) to establish the terms and conditions by which Publisher may display advertising on behalf of Conversant customers (“Advertisers”). (Other capitalized terms used in this Agreement are defined in Exhibit A.) Conversant and Publisher agree as follows:
1. CONVERSANT NETWORK
Conversant reserves the right, in its sole discretion and without liability, to (i) refuse service to any new or existing Publisher or Media Site(s) for any reason; and (ii) reject, omit, or exclude any Publisher or Media Site for any reason at any time with or without notice to the Publisher. This Agreement is voidable by Conversant immediately if Publisher fails to disclose, conceals or misrepresents itself in any way. Unless otherwise approved by Conversant in writing, Publisher may only have one (1) membership account with Conversant; each Media Site is obligated by and bound by this Agreement.
1.1Membership for Websites. Publisher’s membership in the Network is subject to prior approval by Conversant of Publisher’s Websites. Approval of membership in the Network is limited to the Website(s) that Publisher has submitted for approval by Conversant. Conversant reserves the right to request updated content and technology information at any time after the approval of a Website(s) and Publisher agrees to respond to such request within five (5) business days. Publisher may submit additional Websites for approval during the term of this Agreement; however, Conversant shall have no obligation to approve any Website(s), even if the additional Website(s) is the property of an already approved Publisher.
1.2Creation and Distribution of Ad-Enabled Properties for Mobile Applications.
1.2.1Conversant SDK License Grant. Subject to Publisher’s compliance with this Agreement, Conversant grants to Publisher a worldwide, royalty free, non-exclusive, non-transferable license to use, internally, each Conversant SDK solely for purposes of converting Publisher’s Properties into Ad-enabled Properties in accordance with the documentation included in such Conversant SDK. Publisher will not use any Conversant SDK for any purpose other than as authorized in this Section, and Publisher may not share, sell, license or otherwise distribute the Conversant SDK, in whole or in part, to any third party without Conversant’s prior written approval.
1.2.2Distribution of SDK-Modified Properties. Publisher will be solely responsible for distributing or publishing each Ad-enabled Property (as modified using the Conversant SDK), and will do so only through legitimate Third-Party Channels and/or other appropriate and legal channels. Publisher acknowledges that it will be solely responsible for making arrangements for each Ad-enabled Property to be hosted and distributed through any applicable Third-Party Channel. Publisher will submit each Ad-enabled Property to such Third-Party Channel(s) in accordance with the policies and procedures of the Third-Party Channel(s), and will be solely responsible for any fees, revenue shares, or other compensation charged by any third party in connection with the hosting or distribution of such Ad-enabled Properties.
1.2.3Listing by Conversant of SDK-Modified Properties. Subject to Publisher’s compliance with this Agreement, upon Publisher’s submission to Conversant of any Ad-enabled Property’s identification number assigned by a Third-Party Channel (and/or any other relevant information as specified in the Conversant SDK documentation), Conversant may list such Ad-enabled Property in an online content catalog made available by Conversant. Where feasible, and where not prohibited by then-current Third-Party Channel policies, such listing may also link to the Ad-enabled Property within the Third-Party Channel in order to promote the distribution of such Ad-enabled Property.
1.2.4Restrictions. Except as expressly authorized herein, Publisher will not cause or permit (i) copying or modification of any portion of the Conversant SDK, or any accompanying documentation; (ii) reverse engineering, decompilation, translation, disassembly, alteration, adaptation, or discovery of the Network IP as incorporated in or integrated with the Ad-enabled Property or any report file format (except to the extent that such a restriction is prohibited by law); (iii) use of the Conversant SDK in any manner other than as expressly authorized under this Agreement; or (iv) transfer the Ad-enabled Property or export the Ad-enabled Property in violation of applicable law.
1.2.5Rights Reserved. Conversant reserves the right to (i) make substitutions and modifications in the specifications and technology of the Conversant SDK and/or any other software or systems used in connection with Conversant’s delivery of Ads via the Ad-enabled Properties, provided that such substitutions or modifications do not adversely affect the functionality of the same; and (ii) discontinue or otherwise end-of-life the Conversant SDK or any software or systems used in connection with Conversant’s serving of Ads via the Ad-enabled Properties, without prior notice.
1.3Conversant Websites. Publisher agrees that it will not use the Conversant Websites and/or its interfaces or any content therein or data obtained therefrom for any purposes other than as permitted under this Agreement and that Publisher will not disseminate any of the information contained on Conversant Websites. Access to the Conversant Websites may be limited in accordance with the Website type. Publisher agrees that it will not use any automated means, including, without limitation, agents, robots, scripts, or spiders, to access or manage Publisher’s account with Conversant or to monitor or copy the Conversant Websites except on the prior written approval of Conversant. The Conversant Websites contain robot exclusion headers and Publisher agrees that it will not bypass Conversant's robot exclusion headers (including using any device, software or routine to do so), or to interfere or attempt to interfere with the proper working of the Conversant Websites, interface, or any program thereon, or the Network.
1.4Services. Publisher understands and agrees that from time to time the Conversant Websites may be inaccessible, unavailable or inoperable for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which Conversant may undertake from time to time; or (iii) causes beyond the control of Conversant or which are not reasonably foreseeable by Conversant, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks, the unavailability, operation, or inaccessibility of websites or interfaces, network congestion, or other failures. While Conversant will attempt to provide access to the Conversant Websites on a continuous basis, Publisher acknowledges and agrees that Conversant has no control over the availability of the Conversant Websites on a continuous or uninterrupted basis and any failure resulting from technical difficulties does not represent a failure by Conversant to meet its obligations of this Agreement. Publisher also understands and agrees that Conversant is not responsible for the functionality of any third-party website or interface. Terms of this Agreement are subject to Conversant hardware, software, and bandwidth traffic limitations. Conversant reserves the right to discontinue offering any of the functions on the Conversant Websites at any time. Except as otherwise specified by Conversant, Publisher agrees that it will direct all communications relating to any Conversant Website, Ad, Advertiser, or its participation therein directly to Conversant and not to any other entity.
2. MEDIA SITE CONTENT AND PROHIBITED CONDUCT
2.1Pre-approval Required. Any Websites that relate to or have any characteristic of the following must be approved in writing by Conversant and shall be on a case by case basis: (i) excessive ads, app – quest/test, user generated content (blogs, forums, discussion boards, chat rooms, etc.) that is not regulated, (ii) foreign websites, (iii) controversial issues (e.g. religion, sexual orientation and/or edgy humor), (iv) wrestling, (v) anime, (vi) gaming, (vii) old content, and/or (viii) poor quality design and functionality.
2.2Prohibited Conduct. Media Sites that produce, relate to or have characteristics of Prohibited Conduct are prohibited in the Network. “Prohibited Conduct” is defined as:
2.2.1Ad Placement & Tracking. Publisher shall not: (i) place Ads in emails (unless approved by Conversant in writing) or SMS/text messages; (ii) intentionally place Ads on blank web pages or on web pages with no content; (iii) stack Ads (e.g. place on top of one another so that more than two (2) ads are next to each other); (iv) place Ads on non-approved Websites, or in such a fashion that may be deceptive to the User; (v) for Websites, incentivize offers or create the appearance to incentivize offers; (vi) place statements near the Ads requesting that Users "click" on the Ad (i.e., "Please click here," "visit" the sponsor, "Please visit our sponsor"); (vii) for Websites, place misleading statements near the Ad (i.e., "You will win $5,000"); (viii) redirect traffic to a website other than that listed by the particular Advertiser; (ix) ask Users to take advantage of other ads or offers other than those listed by the particular Advertiser; (x) place Ads on personal web pages, non-English language pages (unless otherwise approved by Conversant in writing), or free hosted pages (i.e. Geocities, Xoom, Tripod, Talk City, etc.); (xi) serve Ads, or drive traffic to such Ads, using any downloadable applications (non-Mobile Applications) without the prior written approval of Conversant, which, if provided, is subject in each case to the following condition: Ads delivered in such approved downloadable applications may only be shown once per User session when the application is active, enabled and clearly recognizable by the User as being active and enabled; serving Ads at any time when the downloaded application is not active is strictly prohibited and grounds for immediate termination without pay; (xii) use invisible methods to generate impressions, clicks, or transactions that are not initiated by the affirmative action of the User; (xiii) attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the Network IP, Media Site tags, source codes, links, pixels, modules or other data provided by or obtained from Conversant that allows Conversant to serve the Ad and measure its performance and operate the Network; (xiv) deliver in-page Ad code via pop-ups/unders or (xv) participate in browser history sniffing.
2.2.2Sites. Publisher shall not place any Ads or Network IP on Media Sites that contain, promote, reference or have links to: (i) profanity, sexually explicit materials, hate material, promote violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation, age, or family status, or any other materials deemed unsuitable or harmful to the reputation of Advertiser or Conversant; (ii) software piracy (including but not limited to warez, cracking, etc.), hacking, phreaking, emulators, ROM’s, or illegal MP3 activity; (iii) illegal activities, deceptive practices or violations of the intellectual property or privacy rights of others; (iv) websites under construction, or that do not own the domain they are under; (v) charity clicks/donations, paid to surf, personal sites, Media Sites not owned by or under the control of Publisher, ActiveX downloads, no content (link site), all affiliate links, or incentivized traffic; (vi) promote activities generally understood as internet abuse, including but not limited to, the sending of unsolicited bulk email or the use of Spyware.
2.2.3 Search & Miscellaneous. As applicable to the type of Media Site, Publisher shall not: (i) violate guidelines of any search engines being utilized; (ii) engage in search engine spam, doorway pages, cloaking, etc.; (iii) bid on any trademarked name or terms in any pay-per-click “keyword”/”adword” campaign; (iv) conduct search Ads falsely suggesting a link between Conversant and a third party or otherwise infringing on a third party’s intellectual property rights; (v) engage in any advertising via facsimile or telemarketing; (vi) engage in any misleading or deceptive conduct; or (vii) engage in any commercial SMS/text messaging.
2.3Additional Prohibited Conduct for Mobile Applications. In addition to Section 2 et seq. above, Publisher agrees that, the technical content that is published in any Ad-enabled Property will be maintained and updated by Publisher on a regular basis and that such Ad-enabled Properties will comply at all times with Conversant’s applicable requirements as communicated to Publisher by Conversant. Publisher will not remove or alter any proprietary notices provided by Conversant in the Conversant SDK or that are required (pursuant to the Conversant SDK documentation) to be included in the Ad-enabled Property code, or that might appear when a User uses an Ad-enabled Property on their Compatible Device(s).
3. AD CONTENT AND PLACEMENT
3.1Compliance with Industry Standards. Publisher agrees to undertake and place Ads in compliance with this Agreement, the Interactive Advertising Bureau Guidelines, Standards and Best Practices, the Publisher Guidelines (for Websites), Conversant Content Guidelines, WIKI Best Practices, and Mobile Marketing Association standards (for Mobile Applications), and Conversant and/or Conversant issued insertion order (if any) including all Ad placement restrictions or channels specifications, in accordance with the highest industry standards. Publisher shall position the Ads in such a manner to assure that they are fully and clearly visible to consumers and displayed in a similar manner as other advertisers included in the Media Site.
3.2No Modifications to Ads or Network IP. Except as permitted under this Agreement, Publisher shall not alter, copy, modify, take, sell, re-use, or divulge in any manner any Creative or Network IP without Conversant’s prior written consent and any approved modifications shall be owned solely by Conversant. Publisher shall not copy Ads and display them directly from a Media Site(s); redirect traffic to a Media Site(s) other than a Media Site(s) specified in writing by Conversant and/or Conversant; or ask Users to take advantage of other advertisements or offers other than those provided by Conversant and/or Conversant or Advertiser. Any Conversant Ad that is copied, changed, or altered without prior written approval by Conversant will result in non-payment for the campaign and may result in termination.
3.3Requirements for Conventional Websites. Publishers of Conventional Websites shall be solely responsible for (i) managing its advertising content exclusions in the Conversant interface; and (ii) placing Ads on Conversant approved Conventional Website(s), which placement shall be subject to the terms and conditions of this Agreement. All in page and video Ads must be placed above the fold or within 1,000 pixels of the top of the web page. Pop-under or In-Vue windows cannot be launched from Conventional Websites that launch more than a total of two (2) pop windows, including the Conversant pop-under or In-Vue. Skyscrapers or wide skyscrapers and half page formats cannot be placed on the same web page. Publisher agrees to use the Network IP for displaying an Ad and an Ad may not be placed more than once per web page view.
3.4Video Ads for Conventional Websites. In-stream Ads may be associated with video, audio, or flash entertainment. In-stream video Ads may not be implemented in a stand-alone manner or with generic placeholder files. Publisher agrees to undertake and place video Ads in compliance with the Publisher Video Guidelines. Publisher shall inform Conversant whether the video placement is in-stream pre-roll, in-stream mid-roll, in-stream post-roll or in-stream auto-start and whether the placement includes a synchronized companion banner and the category of content to which the placement is adjacent. Further, under no circumstances shall Publishers of Conventional Websites be permitted to run video Ads that (i) are below-the-fold and auto-start; (ii) by default (i.e., without User interaction) do not play the sound track of the Ad; (iii) auto-start and are presented or located in such a manner that would make it unlikely that the Ads would be viewed by actual Users, whether or not the sound is defaulted to off; (iv) are located in downloadable applications (unless the application is available for download via Third Party Channel); or (v) are located in pop-up windows. Publishers are prohibited from (i) serving more than one pre-roll Ad at the same time; (ii) running multiple Ads in a pod; and (iii) auto-start videos. For Mobile Applications and Mobile Websites, Publisher consents to Conversant’s right to serve video ads on such Mobile Applications and Mobile Websites.
3.5Default Ads. Publisher acknowledges and agrees that Conversant may not be able to fill one hundred percent (100%) of inventory with paying Ads. For Conventional Websites, Conversant may provide free Publisher-defined default redirects expressly for this reason. Publisher-defined default Ads must adhere to the content guidelines outlined for all Conversant Advertisers as set forth in Section 2. Publishers found using default Ads that violate the content restrictions of this Agreement will be removed from the Network. If Publisher chooses not to specify a default redirect, Conversant will display so-called 'house' and/or 'AdCouncil' Ads on a Conventional Website when paid advertising is unavailable or when technical difficulties require it. Under no circumstances does Conversant guarantee to provide any percent fill of paid Ads to a Media Site.
4. NETWORK QUALITY
Conversant employs individuals for the express purpose of monitoring the Media Sites within the Network to ensure that its’ Advertisers receive high quality inventory. Conversant has also developed several advanced anti-fraud systems and regularly audits the Media Sites. Any Publisher that commits fraudulent activities, including false clicks, false impressions, or incentivized clicks, will have their accounts permanently removed from the Network and shall not be compensated for fraudulent traffic as determined by Conversant in its sole but reasonable discretion. For Conventional Websites, all Creatives must be served from a Conversant server or through a Conversant approved 3rd-party-hosted server. Stored images that are loaded from a different location will not count towards any statistic or payment.
5. PROPRIETARY RIGHTS
5.1Licenses. Immediately following download of the Ad-enabled Property by a User to such User’s Compatible Device, Publisher acknowledges and agrees that Conversant or its affiliates, suppliers, service providers, or business partners may serve Ads to such User’s Compatible Device via the Ad-enabled Property, and Publisher hereby grants to Conversant (and its affiliates, suppliers, service providers, and business partners) any and all necessary rights and licenses to do so. Consequently, and without limiting the foregoing, Conversant and its affiliates, suppliers, service providers and business partners are authorized to load Network IP onto such Ad-enabled Properties in connection with such serving of Ads. Provided that Publisher complies with all provisions of this Agreement, Conversant hereby grants to Publisher a nonexclusive, limited, revocable license to use, execute, and display the Network IP solely for Publisher’s performance of its obligations hereunder. Except for the limited license expressly granted in this Section 5.1, nothing in this Agreement shall be construed as Conversant granting Publisher any right, title or interest in Network IP. Publisher acknowledges and agrees that Conversant and/or Advertiser owns all right, title and interest in and to the Network IP and all related intellectual and proprietary rights of any kind anywhere in the world. Publisher’s use of the Network IP or the results created thereby, or disseminating or distributing the same, except as expressly permitted by this Agreement, is strictly forbidden and will result in the termination of this limited license and may result in Publisher being held liable under applicable law.
5.2Intellectual Property Ownership. Subject to the limited licenses granted to Conversant and Publisher herein, each party shall own and shall retain all right, title and interest in its Intellectual Property. Except as provided in this Agreement, neither party may distribute, sell, reproduce, publish, display, perform, prepare derivative works or otherwise use any of the Intellectual Property of the other party without the express prior written consent of such party.
5.3Data Ownership. Publisher understands that all data, including, but not limited to, data derived from a Conversant SDK, personally identifiable information provided by Users in response to an Ad and/or any or all reports, results, and/or information created, compiled, analyzed and/or derived by Conversant from such data is the sole and exclusive property of Advertiser and/or the Conversant Companies and is considered Confidential Information pursuant to this Agreement. Conversant Companies and/or its Advertisers, in their sole discretion, shall have the right to use, market, and re-market the User(s) and/or data without further obligation to Publisher. Publisher shall not make any use of, copy, make derivative works from, sell, transfer, lease, assign, redistribute, disclose, disseminate, or otherwise make available in any manner, such data or information, or any portion thereof, to any third-party nor benefit any third party, including without limitation, any such data or information for purposes of enhancing a User’s profile. Unless otherwise agreed to in writing by the parties, any other use of such data or information is strictly prohibited. Publisher shall not transfer to Conversant any PII or any other User information subject to an opt-in approval by the User if such User has not granted Publisher the right to share such information with third parties. Publisher acknowledges that Conversant may from time to time collect non-PII, demographic information regarding Users of the Properties (such as the User’s age, gender, or zip code), which may be associated with a particular device ID. In addition, Publisher may provide certain non-PII, including but not limited to, non-PII User registration data, to Conversant. Publisher agrees that Conversant and its majority owned affiliates will be free to use such non-PII at Conversant’s sole discretion in connection with its targeted advertising services.
6. REPRESENTATIONS AND WARRANTIES
6.1Publisher Responsibility. The parties hereby acknowledge that Publisher is solely responsible for the method of dissemination of the Ad campaigns and that Conversant will not have any control over the method of dissemination and is relying entirely on these warranties made by Publisher. Publisher represents that it has paid all Publisher License Fees and Publisher covenants to timely pay any Publisher License Fees required to be paid during the term of this Agreement. Publisher further expressly agrees that it owns or has appropriate license to the content on its Media Sites, and any Publisher License Fees required for Publisher content are Publisher's obligation and not the obligation of Conversant.
6.2Warranties. Publisher represents, warrants, covenants and acknowledges that (i) it will provide and maintain the resources, personnel and facilities suitable to perform its obligations under the Agreement; (ii) for Websites, it will comply with all applicable federal, state and local laws and regulations including, without limitation, laws relating to advertising, the internet, privacy and unfair business practices; (iii) for Properties, in any jurisdiction where Ads are used/viewed, do not to operate or utilize a Mobile Website or Mobile Application that fails to comply with UK legislation, regulations or guidelines on mobile marketing as may be implemented into national law/regulations, and any laws and/or regulations that govern mobile marketing and/or mobile communications (whether for commercial use or otherwise); (iv) it will not engage in Prohibited Conduct; (v) that Publisher is either an entity or at least 18 years of age on the effective date of this Agreement; and (vi) that Conversant does not make any specific or implied promises as to the successful outcome of any Ad or campaign.
6.3Mutual Warranties. Each party represents and warrants to the other that (i) it has the full right, power, legal capacity, and authority to enter into, deliver and fully perform under this Agreement; (ii) neither the execution, delivery, nor performance of this Agreement will result in a violation or breach of any contract, agreement, order, judgment, decree, rule, regulation or law to which such party is bound; and (iii) such party acknowledges that the other party makes no representations, warranties, or agreements related to the subject matter hereof that are not expressly provided for in this Agreement.
7.1Obligations. Internet consumer privacy is of paramount importance to Conversant, its subsidiaries, and its Advertisers. Conversant is committed to protecting the privacy of Users, consumers, and Advertisers, and to do its part to maintain the integrity of the internet. Publisher therefore affirms and attests that it will adhere to fair information collection practices with respect to its performance under this Agreement.
7.2 Privacy Requirements. Publisher must clearly and conspicuously post notice on its Media Site(s), and in any other location necessary to ensure that notice to consumers is clear, meaningful, and prominent, that is easy to understand and that (i) is in compliance with (x) all FTC Guidelines and any other applicable laws, rules and regulations with respect to online privacy; (y) all applicable Network Advertising Initiative Self-Regulatory Codes of Conduct as amended from time to time; and (z) all applicable Digital Advertising Alliance Self-Regulatory Principles, as amended, which can be found at www.aboutads.info; (ii) identifies the nature and scope of the collection and use of data gathered by Publisher and its business partners and offers the User an opportunity to opt out from such collection and use of the data; and (iii) contains language materially similar to the following:
"We allow third-party companies to serve ads and/or collect certain anonymous information when you visit our web site or mobile application. These companies may use non-personally identifiable information such as browser type, time and date, browsing or transaction activity, subject of advertisements clicked or scrolled over, or a platform-provided identifier during your visits to this and other websites in order to provide advertisements about goods and services likely to be of greater interest to you. These companies may use technologies such as cookies to collect this information. To learn more about interest-based advertising, or to opt-out, you can visit http://www.networkadvertising.org/.
8.1Payment Rate and Terms. Conversant reserves the right to set Ad campaign rates, which may vary with market conditions. Publisher will typically be paid within twenty-five (25) business days, but not more than sixty (60) days, after the end-of-month.
8.2Additional Payment Terms. Publisher shall not invoice Conversant; all Publisher invoices will be discarded. Publishers will be paid at the account level. All accounts will be settled in US dollars. No payment will be issued for any amount less than $25 (“Minimum Payment Threshold”). All unpaid earnings will rollover to the next pay period. Based on the Minimum Payment Threshold, any Publisher account that goes unpaid for six (6) months becomes subject to immediate payoff and dismissal from the Network. As a condition to Conversant's obligation to make payments hereunder to Publisher, Publisher must log into their account and provide (i) their mailing address and/or payment instructions; (ii) email address; and (iii) a completed and accurate W-9 or equivalent (for US-based Publishers) or a completed and accurate W-8 or equivalent (for non-US-based Publishers). Conversant shall be entitled to withhold $25 for (i) any stop payment it is required to issue or (ii) for each wire transfer fee incurred. All payments are based on actuals as defined, accounted and audited by Conversant. Conversant may take legal action and reserves the absolute right to withhold payment from accounts for Publishers that violate any of the terms and conditions set forth in this Agreement.
8.3Taxes. Any payments made under this Agreement do not include and are net of any government imposed garnishments (e.g. IRS, child support, withholding tax), foreign or domestic governmental taxes or charges of any kind that may be applicable to the sale, licensing, marketing or distribution of the Media Sites, including without limitation excise, sales, use, or value-added taxes; customs or other import duties; or other taxes, tariffs or duties. If required by applicable law or authorities, Conversant may reduce payments for revenue share, fees, or royalties by the amount of tax, duties, or fees for which Publisher is responsible hereunder, and pay such tax, duties, or fees to the appropriate authorities.
8.5Calculation. Calculation of Publisher earnings, including Impressions and click through numbers, shall be in Conversant’s sole discretion. In the event Publisher disagrees with any such calculation, Publisher shall immediately send a written request to Conversant detailing, with specificity, Publisher's concerns. Thereafter, Conversant will provide Publisher with an explanation or, if such calculations are determined by Conversant to be incorrect, an adjustment. Conversant’s calculations shall be final and binding. In the event no adjustment is necessary, if so requested by Conversant, Publisher agrees to reimburse Conversant for its expenses in responding to Publisher's requests under this Section.
9. REFERRAL PROGRAM (CONVENTIONAL WEBSITES ONLY)
9.1New Media Site. If Publisher refers a new publisher or conventional website to Conversant using the referral link tool, Publisher will receive five (5%) percent of amounts paid to the referred publisher for the period of twelve (12) months from date of acceptance, contingent upon the referred site(s) being accepted into the Network. Publisher may place a maximum of one (1) banner link and one (1) text link on any single page of their approved Site (URL) only. Referral links must not be placed in any email solicitations or communications.
9.2No Referral Revenue. Publisher will not receive referral revenue as set forth in Section 9.1 for (i) existing or already approved Conventional Websites in the Network; (ii) websites or applications previously rejected, banned, or otherwise excluded by Conversant; (iii) additional Conventional Websites owned, affiliated and/or operated by the referring Publisher; (iv) websites or applications that have been subsequently rejected, banned or otherwise excluded from the Network; (v) fraudulent and/or questionable activity on the referred media site. Publishers cannot refer themselves as a Publisher and groups of Publishers cannot refer each other.
9.3Termination from Referral Program. Conversant reserves the right to terminate a Publisher's referral program at any time for any reason, including but not limited to fraudulent and/or questionable activity.
Publisher is solely responsible for any legal liability arising out of or relating to (i) Publisher's Media Site(s), (ii) any material to which Users can link through on a Media Site, and/or (iii) any consumer and/or governmental/regulatory complaint arising out of any promotion conducted by Publisher, including but not limited to any spam or fraud complaint and/or any complaint relating to failure to have proper permission to conduct such promotion to Users. Publisher shall indemnify, defend, and hold harmless Conversant and its officers, directors, employees, agents, shareholders, partners, affiliates, representatives, agents and Advertisers (collectively “Conversant Parties”) harmless from and against any and all allegations, claims, actions, causes of action, lawsuits, damages, liabilities, obligations, costs and expenses (including without limitation reasonable attorneys’ fees including in-house counsel time, court costs and witness fees) (collectively “Losses”) incurred by, or imposed or asserted against, the Conversant Parties which, if true, would constitute or relate to any claims, suits, or proceedings for (i) libel, defamation, violation of rights of privacy or publicity, copyright infringement, trademark infringement or other infringement of any third-party right, fraud, false advertising, misrepresentation, product liability or violation of any law, statute, ordinance, rule or regulation throughout the world in connection with the Media Site(s); (ii) any breach by Publisher of any duty, representation or warranty under this Agreement; (iii) any breach by Conversant of any duty, representation, or warranty to provide Ad(s) for placement on the Media Site(s) due to any breach by Publisher of this Agreement; (iv) a contaminated file, virus, worm, or Trojan horse originating from the Site(s); or (v) gross negligence or willful misconduct by Publisher.
11. LIMITATIONS OF WARRANTIES AND LIABILITY
11.1Disclaimer of Warranties. THE NETWORK AND ALL SERVICES PROVIDED BY CONVERSANT ARE PROVIDED ON AN “AS IS” OR “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, CONVERSANT MAKES NO WARRANTIES, GUARANTEES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS, OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN, OR OTHERWISE EXCEPT AS EXPRESSLY SET FORTH HEREIN. CONVERSANT IS NOT RESPONSIBLE FOR DELAYS CAUSED BY ACCIDENT, WAR, ACT OF GOD, EMBARGO, COMPUTER SYSTEM FAILURE, OR ANY OTHER CIRCUMSTANCE BEYOND ITS CONTROL.
11.2Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL CONVERSANT BE LIABLE TO PUBLISHER FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF CONVERSANT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM ANY ASPECT OF THE ADVERTISING RELATIONSHIP PROVIDED HEREIN. IN NO EVENT SHALL CONVERSANT’S TOTAL OBLIGATIONS OR LIABILITY HEREUNDER EXCEED THE LESSER OF THE SPECIFIC ADVERTISING CAMPAIGN IN QUESTION OR TEN THOUSDAND DOLLARS ($10,000.00). REGARDLESS OF ANY LAW TO THE CONTRARY, NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST CONVERSANT MORE THAN ONE (1) YEAR AFTER THE DATE UPON WHICH THE CLAIM AROSE.
11.3Consideration. PUBLISHER ACKNOWLEDGES THAT CONVERSANT HAS AGREED TO PRICING IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH HEREIN, AND THAT THESE CONSIDERATIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. PUBLISHER AGREES THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY AND DISCLAIMERS SPECIFIED IN THESE TERMS WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
12. TERM AND TERMINATION
12.1Termination. This Agreement, as may be amended, applies to Publisher for as long as Publisher distributes Ads in the Network. Conversant reserves the right to terminate any Publisher from the Network at any time, with or without cause.
12.2Post-termination. Upon termination, Publisher agrees to immediately remove from the Media Site(s) any and all Network IP supplied to Publisher by Conversant. Publisher will be paid, in the next scheduled payment cycle following termination, for all legitimate, non-fraudulently accrued, earnings due up to the time of termination. Upon termination all ties to referrals will be permanently severed and Publisher will not receive nor be entitled to receive future referral commissions hereunder.
Each party agrees that it may provide the other with information that is confidential and proprietary to that party or a third party, as is designated by the disclosing party or that is reasonably understood to be proprietary and/or confidential ("Confidential Information"). Conversant’s Ad campaign rates are considered confidential. Each party may use Confidential Information received from the other party only in connection with and to further the purposes of this Agreement. Confidential Information shall not be commingled with information or materials of others and any copies shall be strictly controlled. The receiving party agrees to make commercially reasonable efforts, but in no case no less effort than it uses to protect its own Confidential Information, to maintain the confidentiality of and to protect any proprietary interests of the disclosing party. Confidential Information shall not include (even if designated confidential by a party) information: (i) that is or becomes part of the public domain through no act or omission of the receiving party; (ii) that is lawfully received by the receiving party from a third-party without restriction on use or disclosure and without breach of this Agreement or any other agreement without knowledge by the receiving party of any breach of fiduciary duty; or (iii) that the receiving party had in its possession prior to the date of this Agreement. Upon termination of this Agreement, or upon written request by Conversant, Publisher must destroy or return to Conversant any Confidential Information provided by Conversant under this Agreement.
14. CHOICE OF LAW AND ATTORNEYS’ FEES
This Agreement is governed by the laws of the State of California (USA), except for its conflict of law provisions. The exclusive forum for any actions related to this Agreement shall be in the state courts, and, to the extent that federal courts have exclusive jurisdiction, in Los Angeles, California. The parties consent to such venue and jurisdiction, waive any right to a trial by jury, and agree to waive the personal service of any process upon them by agreeing that service may be effected by overnight mail (using a commercially recognized service) or by U.S. mail with delivery receipt to the last address provided by Publisher. The application of the United Nations Convention on the International Sale of Goods is expressly excluded. A party that primarily prevails in an action brought under this Agreement is entitled to recover from the other party its reasonable attorneys’ fees and costs.
15. ENTIRE AGREEMENT AND MODIFICATION
This Agreement, the Publisher Guidelines, Publisher Video Guidelines, WIKI Best Practices, including exhibits, addenda, and/or any insertion orders issued by Conversant contains the entire understanding of the parties and there have been no promises, representations, agreements, warranties or undertakings by either of the parties, either oral or written, except as stated in this Agreement. This Agreement may only be altered, amended or modified by a written instrument signed by the parties or through a "click through" acknowledgement of assent. Notwithstanding the foregoing, Conversant shall have the right to change, modify or amend this Agreement, in whole or in part, by posting a revised Agreement at least five (5) days prior to the effective date of such change. Publisher’s continued use of the Network after the effective date of the aforementioned change shall be deemed Publisher’s acceptance of the revised Agreement.
Except as provided elsewhere herein, both parties must send all notices relating to this Agreement to (i) for Conversant, via registered mail, return receipt requested or via an internationally recognized express mail carrier to: CEO and General Counsel, 30699 Russell Ranch Road, Suite 250, Westlake Village, CA 91362 USA (effective upon actual receipt); and, (ii) for Publisher at the email or physical address listed on its account (effective upon sending as long as Conversant does not receive an error message regarding delivery of the email) or five (5) days after mailing, whichever occurs first).
No rights or obligations under this Agreement may be assigned by Publisher without the prior written consent of Conversant. Any assignment, transfer or attempted assignment or transfer in violation of this Section shall be void and of no force and effect. Conversant and any of its subsequent assignees may assign this Agreement, in whole or in part, or any of its rights or delegate any of its duties, under this Agreement to any party. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns.
18. INDEPENDENT CONTRACTORS
Each party is an independent contractor. Any intention to create a joint venture or partnership between the parties is expressly disclaimed. Except as set forth herein, neither party is authorized or empowered to obligate the other or to incur any costs on behalf of the other without the other party’s prior written consent.
Publisher shall not release any information regarding Ad campaigns, Creatives, or Publisher’s relationship with Conversant or its Advertisers, including, without limitation, in press releases or promotional or merchandising materials, without the prior written consent of Conversant. Conversant shall have the right to reference and refer to its relationship with Publisher for marketing and promotional purposes. No press releases or general public announcements shall be made without the mutual written consent of Conversant and Publisher.
20. FORCE MAJEURE
Neither party shall be liable by reason of any failure or delay in the performance of its obligations hereunder for any cause beyond the reasonable control of such party, including but not limited to electrical outages, failure of internet service providers, default due to internet disruption (including without limitation denial of service attacks), riots, insurrection, acts of terrorism, war (or similar), fires, flood, earthquakes, explosions, and other acts of God.
21. SURVIVAL AND SEVERABILITY
Any obligations which expressly or by their nature are to continue after termination, cancellation, or expiration of the Agreement shall survive and remain in effect after such happening. Each party acknowledges that the provisions of the Agreement were negotiated to reflect an informed, voluntary allocation between them of all the risks (both known and unknown) associated with the transactions contemplated hereunder. All provisions are inserted conditionally on their being valid in law. In the event that any provision of the Agreement conflicts with the law under which the Agreement is to be construed or if any such provision is held invalid or unenforceable by a court with jurisdiction over the parties to the Agreement, then (i) such provision will be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law; and (ii) the remaining terms, provisions, covenants, and restrictions of the Agreement will remain in full force and effect.
22. REMEDIES AND WAIVER
EXCEPT AS OTHERWISE SPECIFIED, THE RIGHTS AND REMEDIES GRANTED TO A PARTY UNDER THIS AGREEMENT ARE CUMULATIVE AND IN ADDITION TO, NOT IN LIEU OF, ANY OTHER RIGHTS AND REMEDIES WHICH THE PARTY MAY POSSESS AT LAW OR IN EQUITY. FAILURE OF EITHER PARTY TO REQUIRE STRICT PERFORMANCE BY THE OTHER PARTY OF ANY PROVISION SHALL NOT AFFECT THE FIRST PARTY’S RIGHT TO REQUIRE STRICT PERFORMANCE THEREAFTER. WAIVER BY EITHER PARTY OF A BREACH OF ANY PROVISION SHALL NOT WAIVE EITHER THE PROVISION ITSELF OR ANY SUBSEQUENT BREACH.
DEFINITION OF TERMS
“Ad" or “Creative” means the graphic, video, video companion banners or text file(s) provided by Conversant to Publisher to be displayed by Publisher on behalf of Advertiser and/or Conversant.
“Ad-enabled Property” means a Mobile Property, properly modified by Publisher in accordance with the documentation supplied with the applicable Conversant SDK, so as to receive Ads.
“Compatible Device” means a User’s Mobile communication device that is compatible (as determined by Conversant) with Conversant’s ad-serving system, and which may include, without limitation, wireless, mobile or cellular communication devices, Internet communications devices, or other communications or transmission technologies now known or hereafter devised.
“Conventional Website” means a virtual location on the internet that is designated by a unique URL that is under the control of Publisher except for Mobile Websites or Mobile Applications. A Conventional Website may be made up of one or more web pages and may be accessed by a User on a Compatible Device.
“Conversant SDK” means Conversant’s software developer’s kit, as provided to Publisher by Conversant (consisting generally of software, an application programming interface, and associated documentation), designed to enable Publisher to convert its Properties into Ad-enabled Properties.
"Impressions" means the number of times an Ad is served to, and received by, a User on a Media Site as measured by Conversant.
"Intellectual Property" means trade names, logos, trademarks, service marks, trade dress, internet domain names, copyrights, patents, trade secrets, knowhow and proprietary technology, including, without limitation, those trade names, logos, trademarks, service marks, trade dress, copyrights, patents, testimonials, endorsements, know how, trade secrets and proprietary technology currently used by a party or which may be developed and/or used by it in the future.
“Media Sites” means the aggregate of Conventional Websites, Mobile Applications, and/or Mobile Websites owned by, aggregated by, or under the control of Publisher.
“Mobile” means cellular, tablet, and/or handheld devises.
“Mobile Application” means a downloadable application for a Mobile device.
“Mobile Website” means a Conventional Website that has been optimized to a Mobile device format.
“Network” means the aggregate of third party Websites and Properties that display Conversant’s Ads.
“Network IP” means the Ads, Conversant Code and/or source code, Conversant SDK when applicable, and other Intellectual Property made available to Publisher in connection with its performance under this Agreement.
“PII” means personally identifiable information.
“Prohibited Conduct” means conduct, during the course of performance of this Agreement that is listed or related to the proscribed conduct listed in Section 2.
“Properties” means each of Publisher’s Mobile Applications, Mobile Websites, or other separately identifiable items of Mobile software or electronic content, that has been: (a) approved by Conversant for conversion by Publisher into an Ad-enabled Property (which approval will be indicated by Conversant’s issuance to Publisher of an ID number to uniquely identify such Mobile Application, Mobile Website, or other item in Conversant’s Ad serving system).
“Publisher License Fees” means all license fees and/or other fees required to be paid to third parties, for performance of Publisher's obligations or exercise of Publisher's rights hereunder, for the grant of the licenses hereunder, and for any other act by Publisher under this Agreement.
“Spyware” means computer programs or tools that (i) alter a computer User’s browser or other settings or use an ActiveX control or similar device to download ad supporting software without providing fair notice to and obtaining affirmative consent; (ii) prevent a User’s reasonable efforts to block the installation of or disable or remove unwanted software; (iii) remove or disable any security, anti-spyware or anti-virus technology on a User’s computer; (iv) send email through a User’s computer without prior authorization; (v) open multiple, sequential, stand-alone Ads in the consumer’s internet browser which cannot be closed without the User closing the internet browser or shutting down their computer; or (vi) other similar activities that are prohibited by applicable law.
“Third-Party Channel” means an online application distribution channel operated by a third party for a given type of Property or for Properties associated with a given Compatible Device platform, such as Apple’s “App Store” or Google’s “Android Market.”
"User" means any actual person accessing the Media Sites.
“Conversant Code” means pixels, Intellectual Property, software or other computer code, and any deviations thereon, owned and provided by Conversant for use by Publisher.
“Conversant Companies” shall mean Conversant and the parent and any divisions, subsidiaries and affiliates.
“Conversant Websites” means all websites that are owned, operated or hosted by or on behalf of Conversant, including, without limitation, Conversant's branded websites at http://www.conversantmedia.com and http://www.cj.com.
“Website” means Conventional Websites and Mobile Websites but excludes Mobile Applications.
TERMS AND CONDITIONS FOR UK ADVERTISING
(For Conventional Websites and Mobile Websites)
This Exhibit B is relevant only to Impressions delivered in the UK. In the event of any inconsistency between this Exhibit B and the Agreement, this Exhibit B shall control. Pursuant to the Internet Advertising Sales House ("IASH") Code of Conduct v. 7.2, Ads may only be placed on websites meeting the following conditions and Publisher shall ensure that Publisher and/or its Websites, as applicable, comply with the following conditions:
1. The publisher of the Website either owns or is entitled to use the content displayed on all URLs on which activity is running;
2. The Website does not knowingly include any 'virus' or other destructive programming or device that could impair or injure any data, computer system or software;
3. The Website does not knowingly violate any applicable laws or regulations, including without limitation, false or deceptive or comparative advertising laws, gaming and gambling laws, competition laws, and criminal laws;
4. The Website does not knowingly contain content originated by or on behalf of the Publisher that is defamatory, violates any rights of privacy or publicity or constitutes a misrepresentation;
5. The content of the Website originated by or on behalf of the Publisher does not and will not knowingly infringe any Intellectual Property Rights or other proprietary rights;
6. The Publisher and the Website do not knowingly engage in, promote or facilitate activities such as pirating, hacking or any other activities which are illegal under UK law.
7. In respect of unlawful activity or content contributed to the Website without the Publisher's knowledge or awareness of its unlawfulness, the Publisher operates a "notice and takedown" policy that complies with applicable law (currently the Electronic Commerce (EC Directive) Regulations 2002).
8. The Publisher will use all reasonable endeavours not to include on the Website those types of content forbidden by the IASH Code of Conduct. See the definitions of 'barred inventory' in Schedule C of the IASH Code of Conduct (www.iash.org.uk).
9. The Publisher will use all reasonable endeavours not to place advertisements having content or using means addressed by Schedule D of the IASH Code of Conduct (www.iash.org.uk) on the Website without Company's prior written consent.
10. The Publisher will use reasonable endeavours to comply with such additional restrictions as may be set forth in any amendments to the IASH Code of Conduct for the Website.
Revised: January 26, 2014