This Internet Advertising Agreement (this “Agreement”), dated as of the date of the IO (the “Effective Date”), is made by and between Resonate Networks, Inc. an incorporated Virginia with offices at 11720 Plaza America Drive, 3rd Floor, Reston, Virginia 20190 (“Resonate”) and the Publisher. The term “Publisher” means collectively the entity that signs an IO and, if applicable, the entity who is providing the advertising inventory for a campaign. The term “Advertiser,” as the context requires, shall mean the customer of Resonate for whom online advertising is being delivered, which may be a customer or an agency.
Under this Agreement it is the intention of Resonate to place Advertiser advertisements for display, video, and/or mobile on one or more Publisher websites pursuant to the terms and conditions defined here and in the attached IO, as defined below.
The parties agree as follows:
1. CAMPAIGN, INSERTION ORDERS AND INVENTORY AVAILABILITY
a. As part of an advertising campaign conducted by Resonate for its customers (each a “Campaign”), Resonate may provide the Publisher with advertisements to place on specifically identified and agreed upon Publisher websites listed on the insertion order (“IO”) or other websites agreed to as part of the Campaign (each a “Publisher Site”.) Resonate shall have the right to discontinue a Campaign at any time with notice to Publisher without further liability.
b. From time to time, through IOs Resonate will deliver advertisements provided by Advertisers (“Ad(s)”) to Publisher using advertising space contracted for by Resonate (the “Network”) for the benefit of the Advertiser.
c. Publisher will notify Resonate within three (3) business days of the delivery of a signed IO if the specified inventory becomes unavailable. Acceptance of the IO by Resonate will be made upon written approval (which, unless otherwise specified, for purposes of these Terms and Conditions shall include paper, fax, or e-mail communication).
d. IOs are governed by the terms of this Agreement. Revisions to accepted IOs must be made in writing and acknowledged by both parties in writing.
2. AD PLACEMENT AND POSITIONING
a. Publisher must comply with the IO, including all Ad placement restrictions and requirements, to create a reasonably balanced delivery schedule, and provide within the scope of the IO, an Ad to the appropriate Publisher website as specified on the IO when such website is called up by an Internet user. Any exceptions must be approved by Resonate in writing.
b. Ad delivery shall comply with editorial adjacencies guidelines and other terms as stated on the IO. As Resonate’s remedy for a violation of the foregoing sentence, after Publisher notifies Resonate that specific Ads are in violation of such editorial adjacencies guidelines, Publisher will make commercially reasonable efforts to correct within 24 hours such violation. In the event that such correction materially and adversely impacts such IO, the parties will negotiate in good faith mutually agreed changes to such IO to address such impacts. In the event that the parties cannot reach agreement on such changes within three business days from the implementation of such correction, Resonate may, upon the conclusion of such three business day period, immediately cancel such IO. Resonate shall not pay for any affected Ads delivered prior to cancellation of such IO.
3. PUBLISHER SITE(S)
a. The Publisher represents and warrants that it writes, maintains, operates or represents each Publisher Site and that it has the authority to enter into this Agreement, including the right to grant Resonate permission to place advertisements on the Publisher Site. The placements, frequency, and manner the advertisements, and any use of the Site Materials (as defined below), shall be determined by Resonate in its sole discretion.
4. QUALITY CONTROL
While Resonate does not intend, and does not undertake, to monitor all of the content on the Publisher Site, if Resonate at any time during (i) becomes aware of a breach or inaccuracy of any representation or warranty of the Publisher or (ii) determines, in its sole discretion, that any content contained on the Publisher Site is unacceptable, the Publisher agrees that Resonate shall have the right to request immediate removal of any content on the Publisher Site and the Publisher shall comply with such request, in each case in the event that Resonate determines, in its sole discretion, that the Publisher Site adversely affects a Campaign, Resonate or a customer of Resonate.
5. PAYMENT AND PAYMENT LIABILITY
a. Unless otherwise specified in the IO, payment will be sent within 60 days of completion of the month’s delivery of Ads on the Publisher’s website. Payments are to be sent to Publisher’s billing address as set forth in the IO.
b. All payments made to Publisher are based upon Ads delivered as reported by the Google/DoubleClick ad serving infrastructure or any other ad serving system utilized by Resonate. Resonate payments are calculated based upon impressions utilized by Resonate in the furtherance of the campaign identified on the attached IO (the “Sold Impression”). The ad serving infrastructure allows Publishers to identify a location to which action is redirected in the event there is no Resonate Sold Impression to be delivered (the “Unsold Impression”), which may allow the Publisher to monetize the Unsold Impression through another means. Resonate does not provide payment to Publishers for Unsold Impressions.
Publisher must, within one business day of the start date on the IO, provide confirmation to Resonate either electronically or in writing, stating whether the components of the IO have begun delivery.
7. INFORMATION RIGHTS
The Publisher shall make available to Resonate aggregate usage data regarding the Publisher Site as reasonably requested by Resonate. Resonate may retain and use for its own purposes all information the Publisher provides to Resonate in connection with each Campaign. The Publisher agrees that Resonate may transfer and disclose to third parties (including but not limited to Ad Suppliers, potential Ad Suppliers, and Resonate’s business partners) personally identifiable information about the Publisher for the purpose of approving and enabling Publisher’s participation in a Campaign, including for soliciting Resonate-Provided Advertisements. Resonate disclaims all responsibility and will not be liable for any disclosure of that information by any such third party.
8. COUNTABLE CLICKS
“Clicks” are defined as an occasion on which a user clicks on the advertiser’s ad banner/advertising materials directing him/her to the advertiser’s URL. A click shall be deemed a “Countable Click” if, and only if, it (i) goes through Publisher’s unique gateway, (ii) is counted by Resonate’s Ad server, and (iii) is unique, as determined by Resonate in its sole discretion. Any click resulting from robot clicks, multiple clicks from the same user within a two (2) hour period, reloads by the same browser within a two (2) hour period and incomplete requests shall not be considered unique. Clicks through any link other than our advertiser’s banners/advertising materials are strictly prohibited.
9. FRAUDULENT ACTIVITY
Any method that artificially and/or fraudulently generates clicks or impressions is strictly prohibited. These prohibited methods include, but are not limited to: repeated manual clicks, using robots, automated clicking tools, or other deceptive software. Any attempts to artificially inflate account statistics will result in immediate account termination and forfeiture of all amounts due to you, including those that may not be related to the fraudulent activity. We reserve the right to permanently withhold all payments to any person suspected of fraudulent activity.
Automatic refreshing of advertising materials using any means is strictly prohibited.
11. CONNECTIONS TO ADWARE
The Publisher may not use Adware or Spyware that would render or deliver the Resonate-Provided Advertisements to users or otherwise use Adware or Spyware in connection with the Resonate-Provided Advertisements. Adware means any software application in which advertising materials are displayed while the program is running, either through pop-up windows, through a bar that appears on a computer screen or otherwise. Spyware means any software application that gathers information about a person or his/her network, organization or computer without that such person’s consent.
For the purposes of this Agreement, the Publisher hereby grants to Resonate a non-exclusive, royalty-free, world- wide right and license (i) to copy, cache, download, distribute, display, perform, stream, transmit the Publisher Site content and the Site Materials in order to place advertisements on the website and perform the activities described in this Agreement; (ii) to sublicense such rights to Resonate’s affiliates, business partners, contractors and service providers; (iii) to link to the Publisher Site from the Resonate website; and (iv) to copy and otherwise use portions of Publisher Site and the Site Materials (in original or modified form) in order to drive traffic to the Publisher Site and for other promotional purposes. For the purposes of this Agreement, Resonate hereby grants to the Publisher a non- exclusive, royalty-free, worldwide right and license to copy, cache, download, store on its servers, distribute, display, perform, modify, stream, transmit, and reproduce the Resonate-Provided Advertisements solely for the purposes of placing such Resonate-Provided Advertisements on the Publisher Site in accordance with this Agreement.
13. REPRESENTATIONS AND WARRANTIES
The Publisher represents and warrants that (i) the content of a Publisher Site and other materials controlled by the Publisher on the Publisher Site (collectively, the “Site Materials”) is and will be the Publisher’s own and original creation, except for content validly licensed by the Publisher or in the public domain; (ii) the Site Materials and use of the Site Materials as contemplated herein will not (a) constitute a libel or defamation, (b) include any pornographic, obscene or similar objectionable material, or (c) conflict with or infringe upon or violate any copyrights, trademark rights, patent rights, trade secret rights, rights of publicity or privacy or other rights of any third party; (iii) all obligations owed to third parties with respect to the development, maintenance, and operation of the Publisher Site and the Site Materials including, but not limited to, all third-party hosting, service, or licensing fees, are or will be fully paid up by the Publisher; and (iv) the Site Materials will not violate any federal, state, or local law, rule, or regulation.
The Publisher agrees to indemnify, defend, and hold harmless Resonate, its parent and Affiliates, and their officers, directors, members, agents, employees and applicable third parties (e.g., Resonate-Provided Advertisement advertisers or advertising distributors) from and against any and all third party claims, liability, loss, and expense (including damage awards, settlement amounts, and reasonable legal fees) arising out of or related to Publisher’s breach of any of the terms of this Agreement. An “Affiliate” means, with respect to either party, any corporation, firm, partnership, person or other entity, whether de jure or de facto, which directly or indirectly owns, is owned by or is under common ownership with such party to the extent of at least 50% of the equity having the power to vote on or direct the affairs of the entity, and any person, firm, partnership, corporation or other entity actually controlled by, controlling or under common control with such party. A “Third Party” means an entity other than the parties to this Agreement, their respective Affiliates, and each of their respective directors, officers, employees and agents.
15. COMPLIANCE WITH LAWS
The Publisher will comply with all applicable laws, ordinances, rules, regulations, orders, licenses, permits, judgments, decisions or other requirements of any applicable governmental authority. Without limiting the foregoing obligation, the Publisher shall comply with all applicable laws (federal, state or otherwise) that govern marketing email, including without limitation, the CANSPAM Act of 2003 and all other anti-spam laws.
16. CANCELLATION AND TERMINATION
a. Resonate may cancel an IO at any time. In the event of any cancellation by Resonate, Resonate shall remain obligated to pay Publisher for any Ads delivered to Publisher website until the time of cancellation of the IO.
b. Either party may terminate an IO at any time if the other party is in material breach of its obligations hereunder that is not cured within five days after written notice thereof from the nonbreaching party, except as otherwise stated in this Agreement with regard to specific breaches.
17. FORCE MAJEURE
a. Excluding payment obligations, neither party will be liable for delay or default in the performance of its obligations under this Agreement if such delay or default is caused by conditions beyond its reasonable control, including but not limited to, fire, flood, accident, earthquakes, telecommunications line failures, electrical outages, network failures, acts of God, or labor disputes. In the event that Resonate suffers such a delay or default, Resonate shall make reasonable efforts within ten business days to recommend a substitute transmission for the Ad or time period for the transmission. If no such substitute time period or make good is available, Resonate shall allow Advertiser a pro rata reduction in the space, time and/or program charges hereunder in the amount of money assigned to the space, time and/or program charges at time of purchase.
b. To the extent that a force majeure has continued for 30 days, Resonate or Publisher has the right to cancel the remainder of the IO without penalty. Notwithstanding the foregoing, Resonate is liable for all Ads delivered prior to the force majeure event.
18. AD MATERIALS
b. Resonate reserves the right within its discretion to reject or remove from its Network any Ads where the Advertising Materials or the site to which the Ad is linked do not comply with its Policies, or that in Resonate’s sole reasonable judgment, do not comply with any applicable law, regulation or other judicial or administrative order. In addition, Resonate reserves the right within its discretion to reject or remove from its Network any Ads where the Advertising Materials or the site to which the Ad is linked are or may tend to bring disparagement, ridicule, or scorn upon Resonate or any of its Affiliates.
c. If Publisher becomes aware that the Advertising Materials provided by Resonate are damaged, or otherwise unacceptable to Publisher, Publisher will notify Resonate. Publisher may, in its sole discretion, suspend any affected portion of the campaign until Resonate provides corrected Advertising Materials.
d. Publisher will not edit or modify the submitted Ads in any way, including, but without limitation, resizing the Ad, without Advertiser approval.
e. When applicable, Third Party Ad Server tags shall be implemented so that they are functional in all aspects.
f. Resonate may use the name and logo of the Publisher in presentations, marketing materials, customer lists, financial reports and website listings of Resonate Publishers. Subject to the foregoing, Resonate, on one hand, and Publisher on the other, will not use the other’s trade name, trademarks, logos or Ads in a public announcement (including, but not limited to, through any press release) regarding the existence or content of this Agreement or an IO without the other’s prior written approval.
19. LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES SHALL RESONATE, ITS AFFILIATES, AND THEIR OFFICERS, DIRECTORS, MEMBERS, AGENTS, EMPLOYEES AND APPLICABLE THIRD PARTIES (E.G., AD SUPPLIERS) BE LIABLE UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES, WHETHER IN CONTRACT OR TORT, OR ANY OTHER LEGAL THEORY, EVEN IF RESONATE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. RESONATE’S AGGREGATE LIABILITY TO THE PUBLISHER UNDER THIS AGREEMENT FOR ANY CLAIM IS LIMITED TO THE AMOUNT PAID BY RESONATE TO THE PUBLISHER DURING THE THREE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CLAIM AROSE. The Publisher will not be entitled to make any claim nor commence any proceeding arising out of any transactions pursuant to this Agreement unless the same is brought within one (1) year from the date the cause of action arose. Each party acknowledges that the other party has entered into this Agreement relying on the limitations of liability stated herein and that those limitations are an essential basis of the bargain between the parties.
20. NON-DISCLOSURE, DATA OWNERSHIP, PRIVACY AND LAWS
a. Any marked confidential information and proprietary data provided by one party, including but not limited to the Ad description, and the pricing of the Ad, set forth in the IO, shall be deemed “Confidential Information” of the disclosing party. Confidential Information shall also include information provided by one party, which under the circumstances surrounding the disclosure would be reasonably deemed confidential or proprietary. Such Confidential Information includes, but is not limited to, (i) all Resonate software, technology, programming, technical specifications, materials, guidelines and documentation relating to the Campaign; and (ii) click-through rates or other statistics relating to the performance in a Campaign of a Publisher Site. Confidential Information shall not be released by the receiving party to anyone except an employee, or agent who has a need to know same, and who is bound by confidentiality obligations. Neither party will use any portion of Confidential Information provided by the other party hereunder for any purpose other than those provided for under this Agreement.
b. Notwithstanding anything contained herein to the contrary, the term “Confidential Information” shall not include information which: (i) was previously known to a party; (ii) was or becomes generally available to the public through no fault of the receiving party (“Recipient”); (iii) was rightfully in Recipient’s possession free of any obligation of confidence at, or subsequent to, the time it was communicated to Recipient by the disclosing party (“Discloser”); (iv) was developed by employees or agents of Recipient independently of and without reference to any information communicated to Recipient by Discloser; or (v) was communicated by Discloser to an unaffiliated third party free of any obligation of confidence. Notwithstanding the foregoing, either party may disclose Confidential Information in response to a valid order by a court or other governmental body, as otherwise required by law or the rules of any applicable securities exchange or as necessary to establish the rights of either party under this Agreement; provided, however, that both parties will stipulate to any orders necessary to protect said information from public disclosure.
e. Publisher will not, and will not assist or knowingly permit any third party to, (i) pass information to Resonate that could use or recognize as personally identifiable information; (ii) misappropriate any part of the services provided by under this Agreement or modify, disassemble, decompile, reverse engineer, copy, reproduce or create derivative works from or in respect to such services; (iii) set a third-party cookie, or alter or delete a third-party cookie set; (iv) damage or tamper with any part of a services provided by under this Agreement; (v) knowingly breach any security measure; or (vi) provide any Ad that (x) when viewed or clicked on by a visitor(s), causes such visitor(s)’s computer to download any software application, or (y) is obscene or otherwise illegal.
f. Publisher will not use the services provided under this Agreement to select or target Ads (x) based on past visits or clicks by visitors on government agency sites or sites directed at children under the age of 13 years, or (y) based on information generally accepted as “sensitive” pursuant to Internet advertising industry guidelines (e.g., the self- regulatory principles/code of conduct of the Network Advertising Initiative) or policies or applicable law, rule or regulation.
g. Failure to comply with the foregoing subsections d – g are grounds for immediate cancellation of the IO by Resonate.
21. THIRD PARTY AD SERVERS
Resonate will track delivery through its ad server and Publisher may also track delivery through a proprietary or subcontracted 3rd Party Ad Server. Publisher and Resonate agree to give reciprocal access to relevant and non- proprietary statistics from both ad servers, or if such is not available, provide weekly placement-level activity reports to each other. In the event that Resonate’s ad server measurements are higher than those produced by the Publishers 3rd Party Ad Server by more than 15% over the invoice period, Resonate will facilitate a reconciliation effort between Resonate and Publisher.
22. DISCLAIMER OF WARRANTIES
RESONATE DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, REGARDING THE CAMPAIGNS, THE RESONATE CONTENT, AND THE RESONATE WEBSITE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE PUBLISHER UNDERSTANDS AND AGREES THAT RESONATE IS NOT RESPONSIBLE FOR, AND MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE RESONATE-PROVIDED ADVERTISEMENTS.
a. Publisher shall not resell, assign or transfer any of its rights or obligations hereunder, and any attempt to resell, assign or transfer such rights or obligations without Resonate’s prior written approval will be null and void. All terms and provisions of these Terms and Conditions and each IO will be binding upon and inure to the benefit of the parties hereto and their respective permitted transferees, successors and assigns.
b. These Terms and Conditions and the related IO constitute the entire agreement of the parties with respect to the subject matter and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to the subject matter of the IO. The IO may be executed in counterparts, each of which shall be an original and all of which together shall constitute one and the same document.
c. In the event of any inconsistency between the terms of an IO and these Terms and Conditions, the terms of the IO shall prevail. All IOs shall be governed by the laws of the Commonwealth of Virginia. Resonate and Advertiser agree that any claims, legal proceeding or litigation arising in connection with the IO (including these Terms and Conditions) will be brought solely in Alexandria, Virginia and the parties consent to the jurisdiction of such courts. No modification of these Terms and Conditions or any IO shall be binding unless in writing and signed by both parties. If any provision herein is held to be unenforceable, the remaining provisions shall remain in full force and effect. All rights and remedies hereunder are cumulative.
d. Resonate may use Publisher’s name and logo in presentations, marketing materials, customer lists, financial reports and Web site listings of customers.
e. The parties agree and acknowledge that the relationship of the parties is in the nature of an independent contractor. The Publisher may not in any manner misrepresent or embellish the relationship between Resonate and the Publisher, or express or imply any relationship or affiliation between Resonate and the Publisher except as expressly permitted by this Agreement (including by expressing or implying that Resonate supports, sponsors, or endorses any content of the Publisher Site or the Resonate-Provided Advertisements).
f. Any notice required to be delivered hereunder shall be delivered three days after deposit in U.S. mail, return receipt requested, one business day if sent by overnight courier service, and immediately if sent electronically or by fax. All notices to Resonate and Publisher shall be sent to the contact as noted in the IO with a copy to the Legal Department. All notices to Publisher shall be sent to the address specified on the IO.
g. Publisher and Resonate will comply with at all times, all applicable federal, state and local law, ordinances, regulations and codes which are relevant to their performance of their respective obligations under this Agreement.
h. Sections 3, 5, 14, 19, 20, 22, and 23 shall survive termination or expiration of this Agreement and Section 6 shall survive for 30 days after the termination or expiration of this Agreement. In addition, each party shall return or destroy the other party’s Confidential Information and remove Advertising Materials and Ad tags.
i. It is the intention of the parties hereto to agree to the terms and conditions of this Agreement by execution of, or performance under, the IO. Accordingly, the parties have executed and delivered this Agreement by operation of the IO as of the Effective Date.