“Neutrino Media” or “Service” means NMG’s platform for enabling publishers to optimize online advertising inventory and enabling Buyers to purchase such online advertising inventory.
“Anyone” means other than NMG whether referring to the Terms or IO
“Bid” means a bid submitted by Buyer through the Service to display a Creative in an available impression on online advertising inventory.
“Buyer” means an advertiser, agency or other demand-side provider who places Bids through, and/or otherwise purchases online advertising inventory from, the Service.
“CPM” means a campaign for which Publisher shall be paid on a cost per thousand Impressions basis.
“Creative” means advertising materials of any type used under this Agreement.
“Direct Publisher Revenue” means amounts earned by Publisher pursuant to a direct agreement between Publisher an advertiser, agency, ad network, demand side platform, agency trading desk or other demand-side provider (each such entity, a “Demand Partner”, and each such direct agreement, a “Direct Publisher Agreement”), with respect to Impressions that are served and/or optimized through the Service.
“Impression” means an instance in which a Creative is served to, and received by, a Unique Visitor on the Publisher Website as measured by NMG, not including automated page refreshes. Notwithstanding the foregoing, a video Creative served with any companion banner shall count as a single Impression as measured by NMG.
“Invalid Click” means any click on a Creative that (i) causes the visitor to reach a destination other than the intended destination (an incorrect redirect), which may be caused by a server malfunction on the Publisher Website, or because of alterations made by Publisher or erroneous coding placed on the Publisher Website; or (ii) results from applying repeated manual or mechanically automated clicks on mouse, keyboard or any other non-human click generation processes (including without limitation robots, spiders, scripts or other software) as well as all other clicks resulting from methods that NMG determines to be fraudulent in nature, or resulting from incentives or misleading or coercive means.
“IO” means the agreement the publisher executes or has executed with NMG for it’s “Service”. IO is sometimes refered to as “agreement”
“Network Tags” means scripts or placements provided by NMG that are designed to be inserted into the code of the Publisher Pages, which scripts communicate with servers designated by NMG and request transmission from those servers of Creatives.
“Marks” means a party’s trademarks, service marks, logos and trade dress.
“Publisher revenue or share” means percent due the publisher of: (i) the sum of the amounts collected by NMG from Buyers with respect to advertisements on the Publisher Websites; and (ii) Direct Publisher Revenue.
“Publisher Page” means a web page on the Publisher Website.
“Publisher Website” means a website, application, or other media owned or operated by Publisher, or on which Publisher is legally authorized (provide however that at no time will the term “legally authorized” include the act of the Publisher working through or with third parties or Publisher Networks to access or place Network Tags on a Publisher Website”) to act in the manner contemplated by this Agreement.
“Unique Click” means an instance in which a person viewing the Publisher Website, as identified by cookie or IP address, clicks on a Creative, as measured by NMG (provided however, that a click on a specific display Creative by a particular person shall only be counted as a Unique Click once every 1-hour period).
“Unique Visitor” shall mean a visitor to the Publisher Website as identified by NMG based on such visitor’s IP address.
“User Interface” means an online tool provided by NMG through which Publisher may access Reports and other campaign management functions as may be available from time to time.
a) Network Tags. NMG requires placement of Network Tags on the Publisher Websites participating in the Service. Publisher shall use reasonable efforts to promptly place and enable the Network Tags. Publisher will have the ability to set certain criteria with respect to Bids and Creatives via email or other options provided in the User Interface. Publisher shall use best practices to safeguard its User Interface credentials from loss, theft or misuse, and is solely responsible for all activity occurring under such login. Once the Network Tags are placed and enabled by Publisher, the Service may send requests for Bids from the Publisher Website to Buyers. The Service may then accept Bids from Buyers and decide upon the winning Bid for each auction according to methodology and factors determined by the Service, including but not limited to: (1) the highest price/bid, (2) the second highest price/bid, and (3) criteria set by Publisher through the User Interface (e.g., price floors). All delivery shall be subject to frequency capping and targeting parameters established by the Service and/or Buyers, and Publisher agrees that NMG may access, crawl, index and cache the Publisher Website or any portion thereof for such purposes. Unused impressions that are not filled with Creatives may be redirected to Publisher via a redirect link provided or approved by Publisher, at NMG’s discretion.
b) License Grant. Subject to the terms and conditions of this Agreement, NMG grants to Publisher a limited, non-transferable, non-exclusive, non-sub licensable right and license to use the Network Tags and User Interface, and to display Creatives on the Publisher Websites, solely for the purpose of performance of this Agreement and solely during the Term.
c) Restrictions; Prohibited Activities. Publisher shall not do any of the following:
i. Categorize the content of the Publisher Pages in a misleading or inaccurate manner (e.g., a page consisting primarily of autos-related content must be accurately categorized as an autos page).
ii. Place the Network Tags on any Publisher Websites that have not been declared in the User Interface in advance of such placement, or that have not otherwise been approved in advance and in writing by NMG.
iii. Place of have placed Network Tags anywhere other than on Publisher Websites that Publisher has a direct relationship with.
iv. Alter, reverse engineer, decompile, disassemble, sell, rent, lease, sublicense, transfer, or otherwise make available the Network Tags or Creatives or any copies thereof to any third party, or create derivative works therefrom.
v. Copy the Network Tags or Creatives, except for performance of this Agreement or for backup, archival and disaster recovery purposes.
vi. Place Network Tags on blank web pages or on web pages with no content, or in a fashion that may be deceptive to the visitor.
vii. Serve Creatives from any location other than the NMG server (stored images that are loaded from a different location will not count towards any statistic or payment).
viii. Induce persons to click on Creatives based on incentives (e.g., rewards programs).
ix. Use unsolicited email to promote Creatives.
x. Use auto-spawning browsers, or automatic redirecting of visitors, blind text links, misleading links, forced clicks (i.e., requiring a visitor to click on a Creative because his or her browser has been hijacked, or because a Creative has been altered so that it is impossible to close without clicking it); or any other method that may lead to artificially high numbers of delivered clicks.
xi. Represent the Network Tags as their own.
xii. Use of any method that may lead to falsely generated or an artificially high number of impressions.
Publisher recognizes that a breach of any of these conditions could result in immediate, extraordinary and irreparable damage to NMG and its relationships with its advertising clients, and that damages may be difficult to measure. Upon a determination by NMG, in its sole discretion, that Publisher has violated any of the foregoing conditions, Publisher agrees that NMG may, in addition to other legal remedies, assess liquidated damages of up to $1,000.00 per occurrence of each such violation, and that such liquidated damages are reasonable.
d) Prohibited Content. NMG does not accept any Publisher Website that contains the following content: (i) any content that contains or promotes concepts that are hateful or disparaging towards any race, religion, gender, sexual orientation or nationality; (ii) any content that promotes firearms, bombs and other weapons or how-to guides for any of the above; (iii) any content that contains or promotes illegal activities, including, but not limited to hacking, phreaking and online gambling; (iv) any content that contains or promotes pornography or graphic sexual depictions; (v) any content that contains, promotes or links to indecent, or obscene subject matter; or (vi) any content that facilitates or promotes illegal file-sharing (MP3s, copyright protected video, or the equivalent) (collectively referred to as the “Prohibited Content”). Publisher represents and warrants that during Term none of the Publisher Websites on which it places Creatives shall contain or promote any Prohibited Content. NMG reserves the right to reject or block any Publisher Page or Publisher Website at any time at its sole discretion. The Creatives shall not contain Prohibited Content. If Publisher violates the foregoing representation and warranty, NMG’s sole and exclusive remedies shall be as follows: (i) NMG may at its discretion provide notice to Publisher, and Publisher shall in such case have the opportunity to work with NMG to remedy the issue; (ii) NMG may cease (temporarily or permanently) submitting Creatives to the Publisher Website(s); and (iii) indemnification as set forth in Section 8.
e) Ownership Rights. Except for the limited license rights expressly granted to Publisher in this Agreement, NMG retains all right, title and interest in and to the Service, the User Interface, the Network Tags, the Creatives, and the technology utilized by NMG to operate the each of the foregoing, including but not limited to all patent, trademark, copyright, trade secret and all other intellectual property rights therein.
f) Publisher Responsibilities. Publisher is solely responsible, at its own expense, for procuring, maintaining and operating all hardware, software, networks, systems and third-party services (e.g., Internet access) necessary to (i) operate the Publisher Websites, (ii) access and use the Network Tags, the User Interface and the Service, and (iii) display the Creatives.
g) Direct Publisher Agreements. Upon Publisher’s written request and NMG’s approval (not to be unreasonably withheld), Publisher may use the Service to optimize or serve Impressions for Publisher’s accounts with Demand Partners with which Publisher has a Direct Publisher Agreement. Publisher is under no obligation to enter into any Direct Publisher Agreement and does so at its sole risk. In such case, Publisher shall be solely responsible for complying with the Direct Publisher Agreement, and for invoicing and collecting all Direct Publisher Revenue from Demand Partners. Publisher agrees to reasonably assist NMG in gaining access to Direct Publisher Revenue figures and Impression figures from all Demand Partners, upon NMG’s request.
a) Unless agreed to otherwise, notice to cancel must be given by the Publisher to NMG, 120 hours prior cancellation. In all cases of cancellation, proper notice to cancel must be submitted in writing to NMG by the Publisher prior to cancellation. Notice of intent to cancel must state that the Publisher “is executing it’s right and notice to cancel its agreement per the terms and conditions of the IO executed” The notice must also contain the date of cancellation and must be within the cancellation terms agreed to between NMG and the Publisher, in order to not be in violation of the terms and conditions.
The following are considered violations of the cancellation provision.
1) Cancellation for any reason by the Publisher without proper notice
2) Publisher threatening to cancel and or stop sending traffic to NMG for any reason or due to a dispute of any kind, without providing proper notice and subsequently ceasing to send all or part of said ad request or traffic to NMG.
a) Payment Procedure. Payments shall be made by NMG to Publisher’s account (according to information specified in the executed IO. Publisher may be paid at the account level (i.e., if Publisher has multiple accounts, each account may be evaluated independently). No payments will be issued for any amounts less than $1000.00 U.S.D. All un-issued earnings will roll over to the next pay period in which the amounts due exceed $1000.00 U.S.D. Any dispute regarding a payment hereunder must be submitted to NMG in writing within thirty (30) days of such payment or it shall be deemed waived. To ensure timely payment, Publisher must notify NMG of any changes to its account information, including change of address, phone or email address.
b) Platform Fees. NMG shall shall charge a minimum platform fee of 20% on all monetized traffic. All payments shall be made net of the aforementioned platform fee. (20%)
c) Withholding Payment. NMG reserves the right to withhold payment from Publisher if Publisher has engaged in activity that is either prohibited hereunder, is outside the scope of that which is permitted under this Agreement or is not in accordance with the terms of the Agreement. In addition, with respect to Display Creatives, in no event may more than five percent (5%) of Unique Visitors for any payout calculation come from one IP address. Impressions that are served but are not received due to end user blocking technology or software (e.g., pop-up blocking software) shall not count towards any payout calculation.
d) Payment and Payment Liability a. Invoices. The initial invoice will be sent by Publisher upon completion of the first month’s delivery, or within 30 days of completion of the IO, whichever is earlier. Invoices will be sent to NMG via email as set forth on the IO and will include information reasonably specified by Publisher, such as the IO number, Advertiser name, brand name or campaign name, and any number or other identifiable reference stated as required for invoicing on the IO. All invoices (other than corrections of previously provided invoices) pursuant to the IO will be sent within 90 days of delivery of all Deliverables. Publisher acknowledges that failure by Publisher to send an invoice within such period may cause NMG to be contractually unable to collect payment from the Advertiser. If Publisher sends the invoice after the 90-day period and NMG either has not received the applicable funds from the Advertiser or does not have the Advertiser’s consent to dispense such funds, NMG will use commercially reasonable efforts to assist Publisher in collecting payment from the Advertiser or obtaining Advertiser’s consent to dispense funds. Upon request from NMG, Publisher should provide proof of performance for the invoiced period, which may include access to online or electronic reporting, b. Payment Date. NMG will make payment 45 days from its receipt of invoice, or as otherwise stated in a payment schedule set forth on the IO. In all cases, if stated terms in the IO differ from the stated terms and use then payments will be stated terms from receipt of invoice by NMG from the Publisher. c. Payment Liability. Unless otherwise set forth by NMG on the IO, Publisher agrees to hold NMG liable for payments solely to the extent proceeds have cleared from Advertiser to NMG for Ads placed in accordance with the IO. For sums not cleared to NMG, Publisher agrees to hold Advertiser solely liable. Publisher understands that Advertiser is NMG’s disclosed principal and Agency, as agent, has no obligations relating to such payments, either joint or several, except as specifically set forth herein. NMG agrees to make every reasonable effort to collect and clear payment from Advertiser on a timely basis. NMG’s credit is established on a client-by-client basis. If Advertiser proceeds have not cleared for the IO, other advertisers from NMG will not be prohibited from advertising on the Site due to such non-clearance if such other advertisers’ credit is not in question. Upon request, NMG will make available to Publisher confirmation whether Advertiser has paid to NMG funds sufficient to make payments pursuant to the IO.
e) Right of offset; Reimbursement. NMG reserves the right to offset payments due to the publisher with any credits, payment deficits and or amounts owed past terms from any other events to NMG from the publisher from any other active agreements that covers those events between NMG and the publisher. Publisher shall reimburse NMG for all costs, including reasonable attorneys’ fees, incurred by NMG to collect amounts owed by Publisher to NMG for any violations of these terms and for amounts owed that are more than 90 days past due.
f) Non Conformance. By participating in this agreement, Publisher specifically agrees that it will pay NMG the following for any non conformance to the listed terms of the IO.
1. Set up Fee: $5,000.00
2. Ad serving Fee $.01 CPM per ad request
3. Additional Revenue split for NMG of 10%
4. Forfeiture of Contribution to maintain CPM and or Fill rates
g) Taxes. By participating in the Service, Publisher assumes complete and sole responsibility for any taxes owed as a consequence of such participation and agrees to indemnify and hold NMG harmless from any such taxes. NMG shall provide Publisher with appropriate tax information, including earnings on Form 1099 as required by applicable law. If Publisher resides in the United States, then Publisher agrees to provide its Social Security number or Federal Employee Identification Number and any other reasonable information to NMG for tax reporting purposes. Such information will be used for no purpose other than for tax reporting purposes. If Publisher resides outside of the United States, then Publisher may be asked to complete appropriate forms for tax purposes and agree to accurately complete such forms. NMG may withhold payment from Publisher in the event that Publisher does not provide accurate tax information or complete any necessary tax or reporting forms, as determined in NMG’s sole discretion.
5. Counting. NMG shall have the responsibility in its sole and reasonable discretion for calculation of statistics and payments, including, but not limited to, Impressions, Bids, Unique Visitors and revenue generated on or through the Publisher Websites, as applicable. Publisher acknowledges that in some cases, NMG will need to make adjustments to statistics reported in the User Interface (the “Reports”) due to specific contractual provisions. Invalid Clicks, statistical errors, or third party tracking provided by Buyers. In the event Publisher desires to dispute the calculations contained in any daily or end-of-month Reports, such dispute must be submitted to NMG in writing within 30 days following the end of the month that the dispute relates. After the expiration of such 30 day period, the items contained in the Reports shall be deemed accepted by Publisher and Publisher shall not be entitled to dispute any information in such Reports. Any dispute notice delivered pursuant to this Section 5 must specifically describe the items disputed and Publisher’s calculations of such items, if applicable.
6.1. United States-Directed Kids’ Sites. Any Publisher Website (1) directed to children under the age of 13 who reside in the United States or any territory thereof; or (2) that collect information from users known by the operator thereof to be under the age of 13 who reside in the United States or any territory thereof (“Kids’ Sites”) must be identified as such by the Publisher making ad inventory thereon available through the Service in writing (including email) to NMG. Customer’s use of the Service will be in compliance with the United States’ Children’s Online Privacy Protection Act (“COPPA”). Without limiting the foregoing, Customer may not, except to the extent permitted by applicable law, (i) create profiles of users or visitors of Kids’ Sites, (ii) purchase, sell, place or facilitate the placement of behaviorally targeted Ads on Kids’ Sites, or (iii) collect personal information (as defined by COPPA) about users or visitors of Kids’ Sites. NMG will use flags within the Service to categorize Media identified by an applicable Seller as a Kids’ Site within the Service, however NMG undertakes no obligation to monitor COPPA compliance by Buyers or Sellers. Nothing in this Section shall be construed as limiting Customer’s obligation to comply with any other applicable laws, rules or regulations related to minors.
7. Term; Termination. Upon termination, any licenses granted by NMG hereunder shall immediately terminate and Publisher must remove all Network Tags from the Publisher Websites and cease delivery of any and all Creatives. In the case of termination, NMG will pay Publisher all uncontested amounts due during the next billing cycle. The following Sections of the Agreement, and those which by their nature are ongoing obligations, shall survive any expiration or termination of this Agreement: 5, 7, 8, 9, 10, and 12
8. Limitation of Liability. EXCEPT FOR THE PARTIES’ INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS HEREUNDER, NEITHER PARTY WILL BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR OTHER SIMILAR DAMAGES, NOR FOR ANY LOSS OF PROFITS, LOSS OF REVENUES, LOSS OF SAVINGS, LOSS OF CLIENTELE, LOSS OF USE, OR LOSS OR CORRUPTION OF DATA, WHETHER UNDER TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHER THEORIES OF RECOVERY, EVEN IF THE PARTY WAS OR SHOULD HAVE BEEN AWARE OR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR THE PARTIES’ INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS HEREUNDER, IN NO EVENT WILL EITHER PARTY’S LIABILITY ARISING OUT OF THIS AGREEMENT FROM ANY CAUSE OF ACTION WHATSOEVER EXCEED THE AGGREGATE AMOUNTS PAID OR OWED UNDER THIS AGREEMENT BY EITHER PARTY DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.
a) Publisher. Publisher hereby agrees to indemnify, defend and hold harmless NMG and its officers, directors, agents, affiliates and employees associated with any and all third party claims, actions, liabilities, losses, expenses, damages, and costs (including, without limitation, reasonable attorneys’ fees) (collectively, “Losses”) that may at any time be incurred by any of them by reason of any claims, suits, or proceedings or otherwise (i) arising out of any material breach by Publisher of any term, condition, representation or warranty under this Agreement; (ii) relating to a contaminated file, virus, worm, or Trojan horse originating from Publisher’s Website (other than through a Creative supplied by NMG, unless such Creative was modified by Publisher without the express written consent of NMG); (iii) content on the Publisher Websites; or (iv) related to any violation of any intellectual property right or any other third party right, except for Creatives supplied by NMG, unless such Creatives were modified by Publisher without the express written consent of NMG.
b) NMG. NMG agrees to indemnify, defend and hold harmless Publisher and its officers, directors, agents, affiliates and employees associated with any and all Losses that may at any time be incurred by any of them by reason of any claims, suits, or proceedings or otherwise (i) arising out of a material breach by NMG of any term, condition, representation or warranty under this Agreement; (ii) relating to a contaminated file, virus, worm, or Trojan horse originating from Creatives or Network Tags supplied by NMG; or (iii) related to any violation of any intellectual property right or other third party right in connection with Creatives supplied by NMG. Notwithstanding anything to the contrary in this Agreement, NMG shall not be obligated to indemnify Publisher or any other party to the extent a third party claim arises out of material modifications by Publisher to Creatives supplied by NMG without the express written consent of NMG.
c) Indemnification Procedures. Any claim for indemnification hereunder shall be subject to the following provisions: (i) the indemnifying party shall be given prompt written notice of the claim by the indemnified party, provided that any delay in providing notice shall not relieve the indemnifying party of its indemnity obligations under this Agreement unless, and only to the extent, the indemnifying party was prejudiced by the delay; (ii) the indemnifying party shall have the right to control the defense and all negotiations relative to the settlement of any such claim, provided that no settlement admitting liability on the part of the indemnified party may be made without the express written consent of the indemnified party; and (iii) the indemnified party shall reasonably cooperate with the indemnifying party and its counsel at the indemnifying party’s cost and expense.
10. Confidentiality. Each party (“Discloser”) acknowledges that during the performance of its obligations under this Agreement, it may disclose Confidential Information (as defined below) to the other party (“Recipient”).
a) Defined. “Confidential Information” means information regarding Discloser’s trade secrets, personnel, products, customers, financial data, marketing and pricing strategies, services, business plans, methods, computer systems architecture, network configurations, any information which is governed by any now-existing or future non-disclosure agreement between the parties, and any other information which is or should reasonably be understood by Recipient to be of a confidential or proprietary nature. The data collected by NMG with respect to Bids and Creatives on the Publisher Website, and the data contained in Reports, are Confidential Information of both parties.
b) Obligations. Recipient agrees that it will not disclose any Confidential Information to anyone except an employee, agent or advisor (collectively, “Representatives”) who has a need to know same, and who is bound by confidentiality and non-use obligations at least as protective of Confidential Information as are those in this Section, and that it will not use Confidential Information for any purpose not permitted under this Agreement. Recipient will protect the Confidential Information in the same manner it protects its own confidential and proprietary information, but in no event shall such protection be less than a reasonable standard of care.
c) Exceptions. The foregoing obligations shall not apply to the extent Confidential Information must be disclosed by Recipient to comply with any requirement of law or order of a court or administrative body (provided that Recipient agrees to notify Discloser of the issuance of such order as soon as practicable, to reasonably cooperate with Discloser (at Discloser’s expense) in its efforts to convince the court or administrative body to restrict disclosure), and to disclose only the portion of such information that it is legally required to disclose. “Confidential Information” does not include information that: (i) is known to or in the possession of Recipient prior to its disclosure to Recipient hereunder, as evidenced by the Recipient’s written records; (ii) is or becomes known or generally available to the public through no act or omission of Recipient or its Representatives in breach of this Agreement; (iii) is made available free of any legal restriction to Recipient by a third party; or (iv) is independently developed by Recipient without use of or reference to Confidential Information. Notwithstanding anything to the contrary in this Agreement, NMG may use and disclose any aggregate information (i.e. information that does not identify or relate specifically to Publisher), which it has collected or received in providing the service, to the extent necessary to perform, enhance or improve its services and/or for NMG’s business and marketing purposes.
11. Marks Usage. Publisher grants NMG and its Affiliates a non-exclusive, worldwide, royalty-free right and license to use, reproduce and display Publisher’s name, logo and the Publisher Website’s URL and IAB-based categorization, in connection with NMG’s sales materials and presentations.
12. Disclosure. NMG requires certain disclosure rights to ensure that the Service performs properly between its publishers and Buyers. As such, Publisher authorizes NMG to disclose its use of NMG’s platform and grants NMG the right to use and display: (i) Publisher’s name, logo, the Publisher Website’s URL and IAB-based categorization as needed to perform its obligations under this Agreement; and (ii) Publisher’s name, the Publisher Website’s URL and IAB-based categorization, bid request information and statistics relating to the performance of a particular Buyer’s advertisement on the Publisher Website, to such Buyer for reporting purposes. Publisher agrees that Buyers acting as agents or demand-side providers for advertisers may disclose the information provided in subparagraph (ii) to such advertisers. Publisher may not disclose its use of NMG’s service or use NMG’s Marks without the prior written consent of NMG. Neither Party will issue a press release concerning this Agreement or the business relationship contemplated herein without the other Party’s prior written consent.
13. Agreement and Governing Jurisdiction. Should any provision of this agreement or the Standard Publisher Agreement be found to be void, invalid or unenforceable by a court or panel of arbitrators of competent jurisdiction, that finding shall affect only the provisions found to be void, invalid, or unenforceable, and shall not affect the remaining provisions thereof. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Georgia with the jurisdiction being in The Federal Court of Fulton County, Georgia.