This Agreement is entered into by and between Field59, Inc. (“Field59”) and Publisher, as of the Start Date. To the extent there is a conflict between the IO and these Terms and Conditions, these Terms and Conditions shall control.
- Definitions. As used herein: “Publisher” refers to the website publisher and/or mobile internet publisher listed on the IO; “IO” refers to the Insertion Order form; “Agreement” refers to the IO and these Terms and Conditions; “Website” refers to each Publisher website, mobile internet site, or mobile internet application noted on the IO or as otherwise approved in the site list attached to the Insertion Order; “Backfill Ad” refers to text files, graphic files, video files and/or rich media files supplied by Field59 or Field59’s third party suppliers through a javascript file supplied to Publisher; and “Inventory” refers to the specific areas within a Website where Publisher can display a Backfill Ad, as indicated in the Placement, Size and Details columns on the IO, and only when associated with a checked checkbox on the IO. Additional capitalized terms have the meaning ascribed to such capitalized terms on the IO or as otherwise defined in these Terms and Conditions.
- Backfill Relationship. Field59 will use commercially reasonable efforts to provide Publisher with Backfill Ads. Publisher will use commercially reasonable efforts to display Backfill Ads in the Inventory. Publisher may display Backfill Ads within its reasonable discretion, on its otherwise unsold Inventory. Publisher may display Backfill Ads only on the Websites approved in writing by Field59, including the Websites approved on the attached site list. If Publisher wants to display Backfill Ads on a Website not previously approved by Field59 in writing or as approved on the attached site list, Publisher shall obtain Field59’s written approval prior to displaying Ads on such Website. Publisher will notify Field59 within one (1) business day of the Start Date if a Website or its associated Inventory is not available. When Publisher displays a Backfill Ad, Publisher will use commercially reasonable efforts to ensure that the Backfill Ad is displayed evenly and without spikes. Publisher agrees and acknowledges that video Backfill Ads will only display correctly in Inventory that is compliant with the Digital Video Ad Serving Template (VAST) standard or the Digital Video Player-Ad Interface Definitions (VPAID) standard promulgated by the Interactive Advertising Bureau. Publisher agrees and acknowledges that mobile Backfill Ads will only display correctly in Inventory that is compliant with Field59’s technical specifications for mobile web and/or software development kits (SDKs) for mobile applications. If Publisher fails to maintain these standards and specifications, Field59 will be unable to provide mobile or video Backfill Ads and no revenue will be generated from such Backfill Ads.
- Term; Termination. This Agreement is effective as of the Start Date. This Agreement will continue until the End Date and then automatically renew on a month-to-month basis until terminated. A party may terminate this Agreement for any reason or no reason upon twenty-four (24) hours’ prior notice to the other party. Field59 may also terminate this Agreement or terminate delivery of a Backfill Ad to a Website immediately upon notice to Publisher if, in Field59’s sole discretion, Field59 determines that a Website is of poor quality or Field59 reasonably believes that a Website is likely to cause damage or injury to Field59 or Field59’s third-party suppliers. Publisher may also terminate this Agreement or terminate display of a Backfill Ad to a Website immediately upon notice to Field59 if, in Publisher’s sole discretion, Publisher determines that a Backfill Ad is of poor quality or Publisher reasonably believes that a Backfill Ad is likely to cause damage or injury to Publisher. Upon Agreement termination, a party’s right to display Backfill Ads on the Websites shall terminate, and Publisher shall promptly return, erase or destroy all copies, in its possession or control, of the Backfill Ads.
- Reporting; Payment. Field59 will pay Publisher a Revenue Share for the display of Backfill Ads, subject to these Terms and Conditions. Payments will be issued to Publisher within thirty (30) days after Field59’s receipt of payment from its third party suppliers. If Field59 does not receive payment from its third-party suppliers, it shall have no obligation to pay Publisher. The Revenue Share refers to a percentage of the revenue Field59 has received from its third-party suppliers, less applicable ad serving costs; the percentage applicable to Publisher is detailed on the IO in the Revenue Share column. Applicable ad serving costs are deducted prior to calculating the Revenue Share. Applicable ad serving costs vary based on the type of Backfill Ad displayed: Video Backfill Ad serving costs are $1.00 CPM (CPM means cost per thousand ads displayed); Display Backfill Ad serving costs are $0.10 CPM; mobile web Backfill Ad serving costs are $0.10 CPM; and mobile application Backfill Ad serving costs are $0.10 CPM. For other types of Backfill Ads, Field59 will deduct ad serving costs as determined by mutual agreement of the parties. Revenue is generated based on the number of Backfill Ads displayed on the Websites in the Inventory.Field59’s or Field59’s third-party ad serving technology produces reporting information for the number of Backfill Ads displayed, and only that reporting shall be used to determine the number of Backfill Ads displayed. Field59 will provide Publisher with reporting within twenty-five (25) business days following the end of each month. Publisher will invoice Field59 based only on such reporting.
- Invalid Activity. Publisher shall not engage in or permit any Invalid Activity. Publisher is responsible for any Invalid Activity that occurs in the Inventory, whether Publisher specifically directs that Invalid Activity or not. Invalid Activity refers to: (a) text or incentives (such as points, gifts, prizes, premiums, cash or some other form of remuneration) used to encourage end users to click on a Backfill Ad; or (b) incentivized, computerized or otherwise deceptive or artificial means used to increase impressions, page views or clickthroughs for a Backfill Ad. If, in Field59’s sole determination, Publisher engages in Invalid Activity or Invalid Activity occurs in the Inventory, then Field59 may terminate or suspend this Agreement immediately and Publisher shall not be entitled to, and shall forever forfeit, any payment due under this Agreement, including but not limited to any payments associated with the Invalid Activity.
- Websites. In addition to paragraph 7 below, Publisher also represents and warrants that: (i) Publisher has all necessary rights and authority to display Backfill Ads on each Website; (ii) Publisher shall comply with all applicable privacy and export laws, rules, regulations and sanctions programs; (iii) Publisher shall not display or permit the display of any Backfill Ad in a stack, in an iframe, in an email, or to anyone outside the U.S.; (iv) Publisher shall comply with Field59’s technical specifications, which Field59 may update from time to time with notice to Publisher; and (v) no Website will contain any Restricted Content. Restricted Content means content that (i) does not comply with all applicable local, state, federal and international laws, rules and regulations; (ii) infringes or misappropriates any U.S. patent, copyright, trade secret, trademark or other right of any third party; (iii) contains viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines or applications that are designed to disrupt or delay the Backfill Ads; (iv) contains any material that is unlawful, harmful, fraudulent, threatening, abusive, harassing, defamatory, vulgar, obscene, profane, hateful, racially, ethnically, or otherwise objectionable, including, without limitation, any material that supports or otherwise encourages wrongful conduct that would constitute a criminal offense, gives rise to civil liability, or brings disrepute onto Field59; (v) displays anything (such as pop-up windows, expanding banners or buttons or any animation) that may obscure, block, or otherwise obstruct any Backfill Ad; or (vi) directs more than five percent (5%) of end users outside the United States. Publisher also represents and warrants that Publisher shall display on each Website a clearly labeled and easily accessible privacy policy relating to each Website and that the privacy policy: (i) clearly discloses to end users that third parties may be placing and reading cookies on such end users’ browsers, or using web beacons, javascript or other similar technologies to collect information in the course of advertising being displayed on each Website; (ii) clearly discloses to end users that third parties may be engaged in online behavioral advertising on the Website and via the Inventory; (iii) includes information about end users’ options for cookie management and related privacy controls; and (iv) complies with the Self-Regulatory Principles Governing Online Preference Marketing promulgated by the Network Advertising Initiative (available at http://networkadvertising.org), including a conspicuous link to the consumer opt-out page (available at http://www.networkadvertising.org/managing/opt_out.asp). Field59 may from time to time require Publisher to provide specific additional notice mechanisms consistent with applicable laws or industry self-regulations for the purpose of providing end users with information and choices in connection with online advertising.
- Mutual Representations and Warranties. Each party represents and warrants that it has a right to enter into this Agreement and that the execution and performance of this Agreement and the consummation of the transactions contemplated by this Agreement: (i) have been duly authorized by the requisite action of the party; and (ii) do not violate or breach, and will not result in the termination, and do not require the modification, amendment, or renegotiation, of any other agreement binding upon the party.
- DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY. ALL BACKFILL ADS ARE PROVIDED “AS IS.” FIELD59 MAKES NO REPRESENTATION, WARRANTY OR COVENANT REGARDING THE QUALITY, FITNESS OR CONTENT OF ANY BACKFILL AD. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES, AND EACH PARTY DISCLAIMS, ALL WARRANTIES, EXPRESS OR IMPLIED, AS TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. WITHOUT LIMITING PUBLISHER’S INDEMNIFICATION OBLIGATIONS HEREUNDER AND EXCEPT FOR A BREACH OF CONFIDENTIALITY OBLIGATIONS BY PUBLISHER, NEITHER PARTY, NOR ITS AFFILIATES, CONTRACTORS, EMPLOYEES OR AGENTS, SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, RELIANCE,PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, ANY LOST OR IMPUTED PROFITS OR REVENUES, LOST DATA, DAMAGES TO SOFTWARE OR FIRMWARE, OR COST OF PROCURING AND TRANSITIONING TO SUBSTITUTE SERVICES, REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH LIABILITY IS ASSERTED, AND REGARDLESS OF WHETHER A PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITY. THE TOTAL AGGREGATE LIABILITY AND OBLIGATIONS OF FIELD59 TO PUBLISHER ARISING FROM OR RELATED TO THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL PAYMENTS PAID TO PUBLISHER BY FIELD59 IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. PUBLISHER UNDERSTANDS AND ACKNOWLEDGES THAT THERE IS NO GUARANTEE THAT ANY MINIMUM LEVEL OF REVENUE, OR ANY REVENUE, WILL BE GENERATED AS A RESULT OF THIS AGREEMENT.
- Indemnification. Notwithstanding the limitations in paragraph 8, Publisher shall indemnify, defend and hold harmless Field59, its third-party suppliers, and their respective affiliates, assigns, directors, officers, agents and employees from and against any loss, claim, judgment, fine, penalty, liability, damage, action, or cause of action (including reasonable attorneys’ fees) resulting from a third-party claim related to: (a) any breach or alleged breach by Publisher of its representations and warranties made in this Agreement; (b) any negligent, reckless or willful misconduct by Publisher; (c) any real or alleged Invalid Activity; or (d) Publisher’s use of a Backfill Ad in violation of this Agreement.
- Nondisclosure. Publisher will hold all Field59 Confidential Information in confidence and will not disclose any Field59 Confidential Information to any third party, except as specified in this Agreement. Publisher may disclose the Field59 Confidential Information only to Publisher’s employees, contractors, and agents who need to know such information for the purposes of performing Publisher’s obligations under this Agreement and who are bound in writing by restrictions regarding disclosure and use of such information comparable to and no less restrictive than those set forth herein. Publisher will not use any Field59 Confidential Information for the benefit of itself or any third party or for any purpose other than performing Publisher’s obligations under this Agreement. Publisher will use the same degree of care that it uses to protect its own confidential and proprietary information of similar nature and importance (but in no event less than reasonable care) to protect the confidentiality and avoid the unauthorized use, disclosure, publication or dissemination of the Field59 Confidential Information. “Field59 Confidential Information” means any and all information disclosed by Field59 to Publisher, directly or indirectly, in writing, orally, electronically, or in any other form, that is designated, at or before the time of disclosure, as confidential or proprietary, or that is provided under circumstances reasonably indicating that the information is confidential or proprietary, including, without limitation, trade secrets, advertiser lists, business plans, technical data, product ideas, personnel, contract and financial information, the terms of this Agreement, information disclosed to Publisher in reporting information, and information regarding Field59’s third party advertising partners and suppliers. Notwithstanding the foregoing, Field59 Confidential Information does not include information that: (a) is or becomes generally available to the public through no breach of this Agreement; (b) is or was known by the Publisher at or before the time such information was received from Field59, as evidenced by the Publisher’s records; (c) is received from a third party that is not under an obligation of confidentiality; (d) is independently developed by Publisher without any breach of this Agreement, as evidenced by the Publisher’s contemporaneous records; or (e) is approved for release in advance in writing by Field59. If the disclosure of Field59 Confidential Information is required by law, Publisher shall promptly notify Field59 in advance of such required disclosure and use its best efforts to minimize the scope of such disclosure. Publisher agrees and acknowledges that its breach of this paragraph 10 may cause irreparable damage to Field59, for which recovery of monetary damages would be inadequate, and Field59 may seek injunctive relief or other equitable relief in a court of competent jurisdiction to protect the Field59 Confidential Information, in addition to any and all other available remedies.
- Miscellaneous. Publisher acknowledges that Field59’s advertising partners may include Google; Publisher shall comply with the Google DoubleClick Ad Exchange Seller Program Guidelines (available at: https://www.google.com/adxseller/adx/static/en_US/guidelines.html), and Publisher agrees that Google may suspend or terminate Publisher’s participation in such Ad Exchange if Google determines in its sole discretion that Publisher has violated such guidelines. Paragraphs 1 and 7-11 shall survive termination. Any notice shall be in writing and delivered by receipted courier service, by certified first class mail, by fax, or by electronic mail to the email addresses specified on the IO. Field59’s address as of the Start Date is 30 W. Mifflin St., Suite 600, Madison, WI 53703. All electronic notices to Field59 regarding termination of this Agreement shall include an email to legal@field59.com. A party may assign all of its rights and obligations under this Agreement to a third party without the express prior written consent of the other party in the instance of a merger, company sale, sale of business operations, line of business sale, line of business spinout or acquisition of the assigning party; provided, however, that the third party assumes all of the assigning party’s obligations under this Agreement. This Agreement will be binding upon and inure to the benefit of the parties’ permitted successors and assigns. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Wisconsin, without regard to its conflict of law rules. The parties hereby consent to the exclusive jurisdiction of the state and federal courts located in Dane County, Wisconsin. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover reasonable costs and attorneys’ fees. No agency, partnership, joint venture, or employment is created between Publisher and Field59. Neither party is authorized to create any obligation, express or implied, on behalf of the other party, nor exercise any control over the other party’s methods of operation. If any provision of this Agreement will be found to be invalid by any court having competent jurisdiction, the invalidity of such provision will not affect the validity of the remaining provisions. Publisher shall be liable for all local, state, and federal sales, use, withholding, excise, personal property, value-added or other similar taxes, assessments or duties which may now or hereafter be imposed upon this Agreement or which are based on or in any way relating to this Agreement, excluding, however, taxes measured on Field59’s income. This Agreement constitutes the entire agreement between the parties concerning the subject matter and supersedes all proposals, oral or written, all negotiations, conversations, and/or discussions between the parties relating to this Agreement and all past courses of dealing or industry customs. This Agreement may not be amended except by a written instrument executed by the parties. A waiver or consent given by either party on any one occasion will be effective only in that instance and will not be construed as a consent, bar or waiver of any right on any other occasion. This Agreement may be executed in counterparts, both of which taken together shall constitute one single Agreement between the parties. This Agreement may be executed via facsimile or via emailed PDF-format document (or other mutually-agreeable document format), and a facsimile or emailed copy of either party’s signature shall be deemed, and be enforceable as, an original thereof.