RIGHT MEDIA® EXCHANGE SERVICE AGREEMENT TERMS AND CONDITIONS
1. Definitions. “Ad Banner”, “Ad” or “Advertising” shall mean a promotional message (including any code embedded therein) that may consist of text, graphics, audio and/or video or any combination thereof and that is displayed on online media inventory for the purpose of publicizing an Advertiser’s products or services. “Ad Network” means an entity or person that represents or works with a group of Media Buyers and/or Media Sellers. An Ad Network may act as a Media Buyer or a Media Seller, as applicable, hereunder. “Affiliate” of a party means an entity that controls, is controlled by or is under common control with such party, where “control” means the power to direct the management and policies of such party or ownership of at least fifty percent (50%) of such party. “Media Buyer” means any entity or person that buys online media inventory for the placement of Advertising. “Media Seller” means any entity or person that wishes to sell online media inventory on its website(s) to Media Buyers. “Guaranteed Ads” are Ads for which a Media Buyer has paid for placement of guaranteed delivery based on duration and/or number of impressions. “Non-Guaranteed Ads” are Ads that are displayed on a space-available basis on the online media inventory of a Media Seller and are not guaranteed for delivery based on duration and/or number of impressions. The “Right Media Exchange” (or its successor) means the online ad serving platform and virtual marketplace where Media Buyers and Media Sellers may establish relationships with one another, and where Media Buyers may, with respect to Non-Guaranteed Ads, bid on, and with respect to Guaranteed Ads (if and when such functionality is made available), purchase, the online media inventory of Media Sellers using Right Media’s proprietary platform or similar platform that may be made available to You. “Service” means Right Media’s proprietary service that (i) helps facilitate pricing optimization of online media inventory; and (ii) serves Ad Banners.
2. Right Media Service. Subject to the terms and conditions of this Agreement, Right Media grants to You the non-exclusive, non-sublicenseable and non-transferable right to access and use the Service, which Service You may access and use only in accordance with the Exchange Policies or other Service documentation, only via Right Media’s web servers by means of a unique password issued by Right Media (which is to be kept confidential and the use of which is subject to Your compliance with this Agreement) and only for the purposes of : (i) uploading and storing Ad Banners; (ii) selecting Ad Banners and designating the criteria for the serving of those Ad Banners onto online media inventory; (iii) receiving reports of Ad Banner impressions and other data related to Your use of the Service related to the serving of Ad Banners by the Service; or (iv) linking to other Media Buyers and Media Sellers on the Right Media Exchange. You acknowledge that Right Media and its Affiliates are not liable for or in connection with (a) transactions executed by the Service as a result of errors made in entering information into the Service by or for You, for example, incorrectly entering pricing, targeting or budgeting information; or (b) linking arrangements or other agreements You enter into on or through the Right Media Exchange.
4. Right Media’s Obligations. Right Media's obligations hereunder are to (i) provide You with access to the Service, as long as You are complying with this Agreement; (ii) serve Ad Banners through the Service according to the trafficking criteria selected by You using the Service; (iii) make support available during Right Media’s normal business hours, which, as of the Effective Date, are 9am -6pm Eastern Time Monday through Friday (except for holidays); and (iv) provide one web-based training session for up to six of Your employees, explaining the proper use of the Service. The cost for such training session is included in the Service Fee. If You require additional training or request training on Your premises, Right Media will provide such training to You at Right Media’s standard published rates for such training. For training on Your premises, You agree to reimburse Right Media for actual travel, food and lodging expenses. Given the complexity of the Service, You will not permit Your employees, agents or permitted subcontractors, as applicable, to access or use the Service unless they have been trained in their use, whether by You or Right Media. You agree that You will be responsible for any acts or omissions of any of Your agents or permitted subcontractors, and that You will ensure such agents and permitted subcontractors comply with the terms of this Agreement. You also agree that You will be responsible for any acts or omissions of any of Your managed Media Buyers and managed Media Sellers.
5. Fees. Upon signature of this Agreement, Right Media will conduct a credit evaluation. Right Media’s provision of the Service and Your ability to use the Service is contingent upon (i) successful completion of such credit evaluation; and (ii) there being no material changes to Your credit status during the Term. You will pay Right Media the Service Fees set forth on the Cover Page to this Agreement. Service Fees are due upon receipt of invoice and payable (without late fees) within thirty (30) days. "Revenue", as reported by the Service, shall mean, for Media Sellers, such Media Seller's gross revenue and, for Media Buyers, such Media Buyer's gross spend. Any adjustment that You make to pricing will not affect the calculation of Your Service Fees. Right Media may, from time to time, test traffic, implementations and/or features (including, but not limited to, tests on Ads, Websites, impressions, clicks, conversions or pixels) as part of the Service. For purposes of clarity, as of the Effective Date, Your Service Fees may include testing tools such as Media Guard and/or Scour. All fees hereunder will be denominated in U.S. dollars and paid by check or wire transfer to an account to be designated by Right Media, or by other means expressly agreed to in writing by the parties. You will also be responsible for and will pay any applicable sales, use or other taxes or duties, tariffs or the like, applicable to the provision of the Service (except for taxes on Right Media’s income). Late payments will be subject to late fees at the rate of one and one half percent (1.5%) per month, or, if lower, the maximum rate allowed by law. If You fail to pay fees invoiced by Right Media within forty-five (45) days following the payment due date, Right Media will have the right to suspend performance of the Service and Your access to the Service without notice to You; such Service not to be reinstated until You pay all such overdue amounts and an additional reinstatement fee of $1,000. In addition, You also agree to pay any attorneys’ fees and/or collection costs incurred by Right Media in collecting any past due amounts from You.
6. Proprietary Rights and Restrictions. As between the parties, You agree that Right Media owns and retains all right, title and interest in and to the Service, all software, databases and other aspects and technologies related to the Service, any enhancements, modifications or derivative works thereto, any materials made accessible to You by Right Media through the Service, such as through the Knowledge Base, or otherwise and all intellectual property and proprietary rights in and to all of the foregoing. You will not use the Service except as expressly provided for in this Agreement. You will use the Service only in accordance with the training provided by Right Media, the reference materials supplied by Right Media, and Right Media's standard security procedures, as may be posted on the Right Media web site from time to time or otherwise made available to You. You will not reverse engineer, disassemble, reconstruct, prepare derivative works from, decompile, copy, or otherwise attempt to derive source code from the Service or any aspect or portion thereof, or alter or remove any identification, trademark, copyright or other notice from the Service, nor will You authorize, permit or cause others to do so. For the avoidance of doubt, You will not create or attempt to create a substitute or similar service or product through use of or access to the Service (including 3PI, defined below, if made available) or Right Media Confidential Information. You hereby assign all right, title and interest in and to any feedback or suggestions You provide to Right Media regarding Your use of the Service.
You hereby grant Right Media a limited, non-exclusive and non-transferable (except as set forth in Section 16) license (without the right to sublicense) to use, reproduce and display Your trademarks in connection with Right Media’s performance of its obligations and exercise of its rights hereunder. Right Media’s use of Your trademarks will be in compliance with Your usage guidelines provided to Right Media in writing. You retain all right, title and interest (including all intellectual property rights) in and to Your trademarks. Right Media’s rights in and to Your trademarks are limited solely to those rights granted expressly herein.
Each party reserves any rights not expressly granted in this Agreement and disclaims all implied licenses, including, without limitation, implied licenses to trademarks, copyrights, trade secrets and patents.
7. Data. As between the parties, You own and retain all right, title and interest in and to all data derived from Your use of the Service; provided, however, that You hereby grant Right Media the right to use and disclose data derived from Your use of the Service solely (i) as part of its business operations, to disclose aggregate statistics about the Service in a manner that prevents individual identification of You or Your information; (ii) to the extent necessary to (a) perform its obligations under this Agreement; (b) operate, manage, test, maintain and enhance the Service; and/or (c) protect the Service from what, in Right Media’s reasonable determination, is a threat to the Service and/or the Right Media Exchange; (iii) if required by court order or law or required or requested by any governmental agency; and/or (iv) as otherwise expressly authorized by You. You agree that subsection 7 (ii)(a) allows Right Media to pass information included in Your ad call, bid request or bid response, as applicable, to participants in Right Media auctions to help facilitate and optimize such participation.
8. Term. This Agreement is effective as of the Effective Date, and, unless terminated earlier in accordance with the termination rights set forth in this Agreement, this Agreement will expire twelve (12) full calendar months after the Payment Effective Date (“Initial Term”). Following expiration of the Initial Term, this Agreement will automatically renew for additional one-year periods (each, a “Renewal Term,” and the Initial Term and any Renewal Terms, collectively, the “Term”), unless either party gives written notice of non-renewal to the other party at least 30 days before the end of the then-current Term. Following the Initial Term, Right Media may raise the fees charged to You upon thirty (30) days written notice.
9. Termination/Suspension. You may terminate this Agreement if Right Media breaches any material provision of this Agreement and fails to cure such breach within thirty (30) days after receiving written notification of the alleged breach from You. Right Media may terminate this Agreement for any reason or no reason immediately upon written notice (email sufficing) to You. In addition, either party may suspend its performance under or terminate this Agreement if the other party makes an assignment for the benefit of creditors or files or has filed against it any petition under bankruptcy law. Notwithstanding anything to the contrary contained in this Agreement, if, in Right Media’s sole determination, (a) You are in violation of Section 3 hereof or (b) You are, directly or indirectly, using the Service in a manner that could damage or cause injury to the Service or the Right Media Exchange or that otherwise reflects unfavorably on the reputation of Right Media or any of its Affiliates (“Cause for Suspension”), then Right Media may, in addition to any other rights it may have hereunder, immediately suspend Your use of the Service until such time as Right Media deems the Cause for Suspension resolved. If this Agreement is terminated by Right Media, You are required to promptly pay Right Media the Minimum Service Fee for the balance of the Term. In addition, after the Initial Term, upon receipt of notice from Right Media of its intention to raise fees pursuant to Section 8 and before the new fees go into effect, You will have the right to terminate this Agreement upon written notice within fifteen (15) days of such notice from Right Media. Upon termination for any reason (a) Your right to use the Service will immediately terminate; and (b) Sections 6, 7, 10, 12-15, 17-18, and 19.a., together with this sentence and any payment obligations existing as of the effective date of such termination, will survive.
10. Indemnification. You agree to defend, indemnify and hold Right Media, its Affiliates and their respective officers, directors, employees and agents (each, a “Right Media Indemnitee”) harmless from and against any third party claims or actions and pay any finally awarded losses, damages, liabilities, costs and expenses, including reasonable attorneys’ fees, arising out of or in connection with (i) Your breach of any representations, warranties or obligations set forth in this Agreement; and (ii) Your (including Your agents’ and permitted subcontractors’) use of the Service or the Right Media Exchange other than as permitted herein. Right Media agrees to defend, indemnify and hold You, Your Affiliates and their respective officers, directors, employees and agents of each (each, a “Network Indemnitee”) harmless from and against any third party claims or actions and pay any finally awarded losses, damages, liabilities, costs and expenses, including reasonable attorneys’ fees, arising out of or in connection with the breach of any of Right Media’s representations, warranties or obligations set forth in this Agreement. The indemnification obligations in this Section 10 are contingent upon the indemnified party (a) promptly notifying the indemnifying party of the third party claim or action, provided however that the indemnifying party will not be relieved of its indemnification obligations except to the extent that failure to provide such notice materially prejudices the indemnifying party’s rights with respect to such claim; (b) reasonably cooperating with the indemnifying party in the defense and any related settlement negotiations; and (c) allowing the indemnifying party to control the defense and any related settlement negotiations. The indemnified party may, at its option and expense, participate in the defense of the claim. The indemnifying party may not settle a claim without the indemnified party’s consent, which consent will not be unreasonably withheld, conditioned or delayed.
11. WARRANTIES AND DISCLAIMER. Right Media represents and warrants that the Service was developed by Right Media without infringement of a third party’s copyrights or trademarks or misappropriation of a third party’s trade secrets. You represent and warrant that You will not use the Service in a way or for any purpose that infringes or misappropriates any third party’s intellectual property or personal rights and that Your trademarks do not infringe any intellectual property right of any third party. EXCEPT AS SET FORTH IN THIS AGREEMENT, RIGHT MEDIA MAKES NO WARRANTIES, REPRESENTATIONS, OR COVENANTS OF ANY KIND TO ANY PERSON WITH RESPECT TO THE SERVICE OR ANY AD BANNER OR OTHER DATA SUPPLIED THEREBY, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. RIGHT MEDIA DOES NOT MAKE ANY REPRESENTATIONS REGARDING THE BENEFIT YOU WILL OBTAIN FROM YOUR USE OF THE SERVICE. FURTHERMORE, RIGHT MEDIA DOES NOT REPRESENT OR WARRANT THAT THE SERVICE WILL BE ERROR-FREE, ALWAYS AVAILABLE OR OPERATE WITHOUT LOSS OR CORRUPTION OF DATA OR TECHNICAL MALFUNCTION.
12. Limitation and Exclusion of Liability. Except for claims within the scope of Section 10 hereof (as limited below), in no event will either party be liable to the other for any indirect, incidental, consequential, punitive, special or exemplary damages, including, but not limited to, loss of profits or loss of business opportunity, even if such damages are foreseeable and whether or not either party has been advised of the possibility thereof. Right Media’s maximum aggregate liability for all damages, including without limitation, any damages arising from, or related to Section 10, will not exceed the total amount paid by You to Right Media under this Agreement during the twelve (12) month period prior to the date the liability first arose.
13. Confidentiality. During the Term, one party (“Disclosing Party”) may disclose non-public, confidential and proprietary information (“Confidential Information”) to the other party (“Receiving Party”). Confidential Information may include, without limitation, information and data about the Service and the Right Media Exchange and other information the parties disclose to one another, provided such information is marked or identified as “confidential” or should reasonably be understood to be confidential to the Disclosing Party given the circumstances surrounding the disclosure. Notwithstanding the foregoing, the terms of this Agreement (including pricing terms) and the Service will be deemed to be Confidential Information of Right Media. Receiving Party agrees that for the Term and for three (3) years thereafter, Receiving Party will neither disclose the Confidential Information to any third party nor use the Confidential Information other than to perform its obligations under this Agreement or as otherwise permitted in this Agreement (e.g., Section 7); provided, however, that Receiving Party shall be permitted to disclose the Confidential Information of Disclosing Party only to those of its employees, representatives, Affiliates and agents who have a reasonable need to know such information and who are bound to keep such information confidential in a manner consistent with the terms of this Section 13. Receiving Party shall exercise at least the same degree of care to safeguard the confidentiality of Disclosing Party’s Confidential Information that it exercises to safeguard the confidentiality of its own confidential information (but no less than reasonable care). The nondisclosure obligations set forth in this Section will not apply to information that Receiving Party can document is generally available to the public (other than through breach of this Agreement) or was already lawfully in Receiving Party’s possession without obligation of confidentiality at the time of receipt of the Confidential Information from the Disclosing Party. Notwithstanding the foregoing, (i) You agree that Right Media may identify You, based on Your Service profile, as a suitable linking partner to other Right Media Exchange members; and (ii) Receiving Party may disclose Confidential Information in response to a valid order by a court or other governmental body, as required by law or as necessary to establish the rights of either party under this Agreement (“Regulatory Requirements”), so long as prior to such disclosure, Receiving Party provides Disclosing Party with sufficient notice (if permissible or if Right Media reasonably determines that the circumstances warrant prior notice) to permit Disclosing Party the opportunity to seek a protective order, and in the absence of a protective order, Receiving Party discloses only that portion of the Confidential Information that is legally required to be disclosed. Receiving Party may also disclose Confidential Information of the Disclosing Party with the Disclosing Party’s prior written (including email) consent. Disclosing Party provides the Confidential Information hereunder without warranties or representations of any kind. Within five (5) days following a request by Disclosing Party, Receiving Party shall (a) return or destroy, as specified by Disclosing Party, all Confidential Information furnished by Disclosing Party; and (b) destroy all written material, memoranda, notes and other writings or recordings whatsoever prepared by it or its Representatives based upon, containing or otherwise reflecting the Confidential Information (the “Materials”) unless Receiving Party is required by law to retain such Materials.
14. Independent Contractor Status. Each party to this Agreement is and acts as an independent contractor with respect to this Agreement and not as partner, joint venturer or agent.
15. Modifications and Waivers. This Agreement sets forth the entire Agreement between the parties with regard to its subject matter, and supersedes all prior or contemporaneous oral or written understandings, statements, representations or promises. No failure or delay on the part of either party in exercising any right, power or remedy under this Agreement will operate as a waiver, nor will any single or partial exercise of any such right, power or remedy preclude any other or further exercise or the exercise of any other right, power or remedy. Any amendment, supplement or modification of or to any provision of this Agreement, any waiver of any provision of this Agreement and any consent to any departure by the parties from the terms of this Agreement, will be effective only if it is in writing and signed by both parties, unless otherwise provided herein.
16. Assignment. This Agreement and the rights hereunder are not transferable or assignable (including by operation of law or otherwise) without prior written consent of the non-assigning party. Any attempt to do so is void. However, notwithstanding the foregoing, this Agreement may be transferred, assigned and/or delegated by Right Media without prior written consent (i) to a person or entity who acquires or has acquired all or substantially all of Right Media’s assets, stock or business by sale, merger or otherwise; (ii) to a person or entity who acquires or has acquired all or substantially all of the assets or business of the Right Media division providing the Service; and (iii) to an Affiliate of Right Media.
17. Applicable Law. This Agreement and all controversies arising from or relating to performance hereunder will be governed by and construed in accordance with the laws of the state of New York, without giving effect to its conflict of laws principles. The parties hereby (i) agree that any action arising out of this Agreement will be brought in the state or federal courts located in New York, New York; and (ii) irrevocably submit to the exclusive jurisdiction of such courts.
18. General. You represent and warrant that You and the signatory hereto have the full right, power and authority to enter into this Agreement. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective only to the minimum extent necessary without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provisions. No failure or omission by a party in the performance of any obligation under this Agreement will be deemed a breach of this Agreement or create any liability if it arises from a cause or causes beyond the reasonable control of such party, including, but not limited to, the following: acts of god, acts or omissions of any government or any rules, regulations or orders of any governmental authority or any officer, department, agency or instrument thereof, fire, storm, flood, earthquake, accident, acts of the public enemy, war, rebellion, Internet brown out, insurrection, riot, invasion, strikes or lockouts. You will not use the Service to, directly or indirectly, conduct, promote or facilitate business or target users in countries subject to U.S. embargo or trade sanctions. All notices, demands and other communications provided for or permitted under this Agreement will be made in writing to the parties at the addresses on the Cover Page (and, in the case of Right Media, with a copy to its Legal Department) and will be sent by registered or certified first-class mail, return receipt requested, email (delivery receipt requested), facsimile, courier or overnight service or personal delivery and will be deemed received upon delivery, or, in the case of email, upon receipt of a delivery receipt. This Agreement does not create any right or cause of action for any third party. If Right Media integrates the Service with another system or adds new features and/or functionality to the Service, that new system may be made available to You under additional terms and conditions. This Agreement may be executed: (i) in counterparts, each of which will be deemed an original, but all of which taken together will constitute but one and the same instrument; and (ii) by facsimile and such facsimile execution will have the same force and effect as an original document with original signatures. Neither party will issue any press releases or make any other public disclosures regarding this Agreement (except in connection with Regulatory Requirements) without the other party’s prior written consent, provided however, that Right Media may publicly disclose the fact that You are a participating member of the Right Media Exchange.
19. Third Party Integration. “3PI” or “Third Party Integration” is a feature of the Service that enables certain information regarding a Media Seller’s online media inventory to be passed to a Media Buyer so that such Media Buyer may use its own bidding optimization technology to further optimize its bid for such Media Seller’s online media inventory through the Right Media Exchange. If You participate in 3PI, the following terms apply:
a. In connection with Your participation in 3PI, You represent and warrant that:
i. Unless otherwise agreed to in writing by You and the applicable Media Seller, any information passed to You by Right Media will be used by You solely for the purposes of (x) optimizing the then-current bid for Non-Guaranteed Ad inventory of such Media Seller that You send back to the Right Media Exchange and (y) evaluating the performance of Your Ads, and such information will not be used for segmenting users, retargeting ads or creating or supplementing user profiles or inventory profiles.
ii. You will not, for any purpose, including, without limitation, the purpose of determining or attempting to determine an actual Right Media Exchange cookie ID, combine, correlate or merge any personally-identifiable information, links to personally-identifiable information or any other information or data You receive or derive from Your participation in 3PI, with any other information or data in Your possession or in a third party’s possession, including, without limitation, any personally-identifiable information or links to personally-identifiable information. Without limiting the foregoing, You will not combine any of the information or data You receive or derive from Your participation in 3PI with the information or data that another member of the Right Media Exchange receives or derives from its participation in 3PI. Notwithstanding the above, the mere act of mapping a hashed Right Media Exchange cookie ID to Your cookie ID will not constitute a breach of this subsection (ii), provided that such act does not combine, correlate or merge the hashed Right Media Exchange cookie ID with any personally-identifiable information or links to personally-identifiable information or otherwise effectively circumvent the purposes of the restrictions contained herein.
iii. Unless otherwise agreed to in writing by You and the applicable Media Seller, You will not log, store, copy, archive or otherwise retain any information passed to You by Right Media in connection with Your 3PI activities, unless, with respect to a particular impression, You have won the auction for such impression, in which case you may do so only with respect to the information received in connection with such impression, subject to the provisions herein, including paragraph 19.a.i.(y).
iv. You will not permit any agents or subcontractors to use or manage the Service on Your behalf in connection with 3PI without the prior written consent of Right Media.
b. In connection with Your participation in 3PI, unless otherwise agreed to in writing by You and the applicable Media Seller, You will ensure that You have obtained prior approval from each applicable Media Seller with respect to each Ad creative (including the source of hosting for such Ad creative) eligible to be served to Media Seller’s website(s). In addition, unless otherwise agreed to in writing by You and the applicable Media Seller, You agree that each Ad creative will be associated with (i) an Ad tag owned or controlled by You and not by a third party (unless otherwise explicitly agreed by You and the applicable Media Seller) and (ii) its own unique Ad tag (i.e., no “rotating” Ad creatives).
c. In connection with Your participation in 3PI, You will obtain all necessary rights, waivers and permissions to allow Right Media to pass to You any information included in a Media Seller’s ad call and bid request.
d. In connection with Your participation in 3PI, upon reasonable advance written notice, Right Media and/or Media Sellers shall have the right to verify Your compliance with this Amendment. You shall make all applicable books and records available for such inspection during normal business hours at Your principal place of business. Any audit will be at Right Media’s or Media Seller’s expense, as applicable, unless Right Media or Media Seller, as the case may be, determines a material non-compliance occurred, in which case, You shall reimburse Right Media or Media Seller for such expense, and Right Media may exercise any of its rights hereunder or at law.
e. Right Media may suspend or terminate Your participation in 3PI for any reason or no reason at any time upon notice. In the event of a conflict between this Section 19 and any other Section of these Terms and Conditions, this Section 19 shall take precedence.