Terms & Conditions
Expert Strategists Who Deliver
a) "Confidential Information" means all written or oral information disclosed by either Party to the other that has been identified as confidential or that by its nature ought reasonably to be considered confidential. Information relating to the Advertising Services is the Confidential Information of 9Media Online INC.
b) "Data Protection Law" means any and all applicable privacy and data protection laws (including, where applicable, EU Data Protection Law) as may be amended or superseded from time to time.
c) "EU Data Protection Law" means (i) the EU General Data Protection Regulation (Regulation 2016/679); (ii) the EU e-Privacy Directive (Directive 2002/58/EC); (iii) EU Network and Information Systems Directive (Directive (EU) 2016/1148); and (iv) any national data protection laws made under or pursuant to (i), (ii) or (iii).
d) "Intellectual Property Rights" patents, petty patents, utility models, trademarks, design rights, applications for any of the foregoing, copyright, moral rights, database rights, semi-conductor topography rights, trade or business names, whether registrable or otherwise (including applications for and the right to apply for registration of any such rights), and any similar rights in any country whether currently existing or created in the future, in each case for their full term, together with any renewals or extensions.
Capitalized terms used but not defined in these Terms and Conditions have the meaning assigned to such terms inthe Agreement.
2) IAB Standard Terms and Conditions –
The AAAA/IAB Standard Terms and Conditions for Internet Advertising for Media Buys One Year or Less v3.0 (“IAB 3.0”) posted at: http://www.iab.net/media/file/IAB_4As-tsandcs- FINAL.pdf, is hereby incorporated into this Agreement. In the event of any conflict between the terms of this Agreement and the terms of IAB 3.0, the terms of this Agreement shall govern. For purposes of clarity, in IAB 3.0, “Agency” shall refer to 9Media Online Inc. and “Media Company” shall refer to Publisher.
3) Advertising Services –
9Media Online Inc. shall provide advertising sales and associated services to Publisher, including, but not limited to, the services outlined on the first page of this Agreement (“Advertising Services”).
4) Publisher’s Responsibilities
a) Publisher shall, at its own cost and expense, integrate the 9Media Online Inc. advertising technology platform (the “9Media Online Inc. Platform”) according to 9Media Online Inc. -provided specifications and generally accepted industry standards. 9Media Online Inc. hereby grants Publisher a limited, non-exclusive, non-transferable, and revocable license to use the 9Media Online Inc. Platform during the Term.
b) Publisher is solely responsible for providing, at its own expense, content, development, marketing and technical support for the Publisher Properties or Publisher content, except with respect to Advertising. Publisher is solely responsible for all editorial aspects of the Publisher Properties, and 9Media Online Inc. has no right to control any aspects of the Publisher Properties.
c) Publisher agrees not to place creatives on blank or invisible web pages or on web pages with no content or in any way deceptive to the visitor.
d) Publisher will provide 9Media Online Inc. with prior written notice regarding any new website domain sources for which they will be providing traffic. Publisher’s internal quality control team shall screen such new website domain sources to determine whether the same are clean and shall provide their written determination to 9Media Online Inc if any content on the Publisher properties is found not to be clean.
e) Publisher represents and warrants that all video content provided by Publisher to 9Media Online Inc. for online video management is owned by Publisher or Publisher has all necessary legal rights to use and distribute the video content.
f) Publisher shall not attempt to reverse engineer, decompile or dissemble the 9Media Online Inc. video management technology. When Publisher receives code from 9Media Online Inc. , Publisher agrees to not alter, translate or create derivative works of the code in any way without the prior written permission of 9Media Online Inc.
g) Publisher shall ensure that Publisher Properties will contain specialty content that is (i) current; (ii) regularly updated; and (iii) resides on a top-level domain, and does not include portals, search engines, and sites of links to any third party’s content.
h) Publisher shall ensure that Publisher Properties shall not: (i) contain or link to any adult, sexually explicit, obscene, indecent or illegal, content or content which promotes illegal behavior, racism, hate, “spam,” mail fraud, pyramid schemes, or investment properties or advice, not permitted by law; or content that is libelous, defamatory, or contrary to public policy, use explicit language, or infringe the rights of any third party; (ii) allow Advertising on any sites or pages for which Publisher is not directly responsible or any sites that have not been reviewed and approved by 9Media Online Inc. ; (iii) allow timed rotation or auto refresh of Advertising; and (iv) contain unmoderated user-submitted content.
5) License Grant and Access; Ownership
a) Publisher hereby grants 9Media Online Inc. the right to sell and have sold Advertising on the Publisher Properties and to insert such Advertising during the Term, including the right access or call to the Publisher Properties or the servers that make them available and to cause the routing, transmission, reproduction, and display of Advertising as contemplated herein. Furthermore, Publisher hereby grants 9Media Online Inc. the right to list such Advertising in pitch materials to prospective advertisers, to report such Advertising as being part of 9Media Online Inc. advertising network, and to use Publisher’s trademarks and logos and images of the Publisher Properties in connection with exercising the foregoing right.
b) 9Media Online Inc. owns all right, title, and interest in and to its technology, software and products, including all associated intellectual property rights. All data collected by 9Media Online Inc. or advertisers through the 9Media Online Inc. technology or otherwise from Publisher Properties, including, but not limited to, including cookies and beacon data, metadata, usage data, geo-location data, analytics, and streaming data will be the property of 9Media Online Inc. or the advertiser, as the case may be. Publisher hereby acknowledges that all information, graphics, and infrastructure provided by 9Media Online Inc. are the sole property of 9Media Online Inc. and may not be used without its prior written consent. Further 9Media Online Inc. retains all right, title, and interest in and to any materials created, developed, or provided 9Media online Inc. in connection with this Agreement, including all intellectual property rights related to each of the foregoing.
6) Data Protection
a) In this Section 6, the expressions "controller", "processor", "personal data","processing" (and "process") shall have the meanings given in Data Protection Law.
b) The parties acknowledge that Publisher will disclose or make available certain data about visitors to the Publisher Properties (which may include personal data) ("Data") to 9Media Online Inc. to process for the purpose of selling Advertising and to improve ad targeting across its network of participating publishers (the "Permitted Purpose").
c) Publisher is a controller of the Data it discloses or makes available to 9Media Online Inc. , and 9Media Online Inc. will process the Data as a separate and independent controller for the Permitted Purpose. In no event will the parties process the Data jointly as joint controllers.
e) 9Media Online INC will not disclose the Data to any third party without Publisher's prior written consent except: (i) for the Permitted Purpose; (ii) as otherwise permitted pursuant to this Agreement; or (iii) where required by applicable law.
f) 9Media Online INC shall implement appropriate technical and organizational measures to protect the Data (i) from accidental or unlawful destruction, and (ii) loss, alteration, unauthorized disclosure of, or access to the Data (a "Security Incident"). In the event that 9Media Online Inc. suffers a confirmed Security Incident that impacts the Data, it shall notify Publisher without undue delay and cooperate in good faith with the Publisher to agree and action such measures as may be necessary to mitigate or remedy the effects of the Security Incident.
g) 9Media Online INC may appoint third party processors to process Data for the Permitted Purpose, provided that such processors: (i) agree in writing to process Data in accordance with 9MO's documented instructions; (ii) implement appropriate technical and organizational security measures to protect the Data against a Security Incident; and (iii) otherwise provide sufficient guarantees that they will process the Data in a manner that will meet the requirements of Data Protection Law. 9Media Online INC accepts responsibility for any breach of this Section 6 that is caused by an act, error or omission of a processor it has appointed.
h) Where EU Data Protection Law applies, 9Media Online Inc. shall not process any Data (nor permit any Data to be processed) in a territory outside of the European Economic Area ("EEA") unless it has taken such measures as are necessary to ensure the transfer is in compliance with EU Data Protection Law.
j) Subject to Publisher’s prior review and approval of the 9Media Online Inc. Platform requirements, Publisher will use best efforts to ensure the Publisher Properties support the targeting criteria set forth in the 9Media Online Inc. Platform in the advertising calls from the Publisher Properties to the 9Media Online Inc. Platform and to pass any additional criteria from its Publisher Properties to the 9Media Online Inc. Platform including, but not limited to, registration information, location information and content section information.
k) Publisher hereby acknowledges that information, graphics, and infrastructure provided by 9Media Online INC are the sole property of 9Media Online Inc. and may not be used without its prior written consent.
l) Publisher must inform 9Media Online Inc. (and keep 9Media Online Inc. informed) if any Publisher Properties are directed towards children under the age of 16. In such event, Publisher acknowledges that 9Media Online Inc. may elect not to sell Advertising on such child-directed Publisher Properties.
m) This Section shall survive termination or expiry of this Agreement. Upon termination or expiry of this Agreement each Party may continue to process the Data under its control provided that such processing complies with the requirements of this Section 6 and Data Protection Law.
7) Billing & Payment
a) After the end of each calendar month during the Term, 9Media Online INC will remit payment for the applicable reporting period in accordance with the Agreement. If the monthly payment does not exceed the minimum payment threshold of $200.00, 9Media Online INC shall withhold payment until such time when total payment owed to Publisher exceeds such minimum payment threshold. Payment shall be made in U.S. Dollars by electronic transfer to a bank account designated by Publisher, subject to the following additional conditions for international payments: (i) for international wires, a minimum account balance of $1,000.00 U.S. Dollars is required; and (ii) for international payments under $500 U.S. Dollars, PayPal may be used so long as Publisher has a minimum account balance of $200.00. In addition, all PayPal payments are subject to a $5.00 surcharge.
b.) Each Party will report any discrepancy in or question about the payment. The Parties will reconcile any discrepancy or questions in good faith. Publisher shall notify 9Media Online INC in writing of any disputes regarding payment within 60 days of issuance of any such payment. Failure to so notify 9Media Online INC will result in Publisher’s waiver of any claims related to such disputed payment.
c.) 9Media Online Inc. pays solely based off Paid Ad Impressions reported by the 9Media Online Inc. Platform, the applicable ad network, and/or advertiser, as applicable.
d.) 9Media Online Inc. in no way promises 100% ‘Inventory Sell Rate’ for an Ad Opportunity sent to 9MO by Publisher. Publisher acknowledges and agrees that not all Ad Opportunities provided by Publisher will be filled with a Paid Ad Impression from 9Media Online Inc. and therefore there is no guarantee that there will be revenue generated for every Ad Opportunity provided by Publisher.
e.) Each party making a payment under this Agreement may deduct from such payment any withholding, sales, value added, and other applicable taxes (other than its net income taxes) which such party is required by law to deduct. Each party is responsible for paying any other taxes, duties, or fees for which such party is legally responsible.
f.) In the event 9Media Online Inc. is due any sums under the terms of this Agreement or for any other services
provided by 9Media Online Inc. may deduct or offset such amounts from any amounts owed to Publisher.
8) Term & Termination
a) Unless otherwise specified in the Agreement, this Agreement is effective as of the Effective Date and shall remain in place for an initial term of 2 years (the “Initial Term”). At the end of Initial Term, this Agreement shall automatically renew for consecutive 12 month periods unless terminated by either Party with at least
60 days' written notice prior to renewal (each, a “Renewal Term”). The Initial Term and any Renewal Term(s) are collectively referred to as the “Term”.
b) Either party may terminate this Agreement at any time without cause by giving at least 48 hours prior written notice.
c) Either party may terminate this Agreement effective immediately if the other party is in material breach of any obligation, representation or warranty hereunder and fails to cure such material breach (if capable of cure) within 30 days after receiving notice of the breach from the non-breaching party.
d) Either Party may terminate this Agreement immediately upon written notice at any time if: (i) the other Party files a petition for bankruptcy or is adjudicated as bankrupt; (ii) a petition in bankruptcy is filed against the other Party and such petition is not removed or resolved within sixty (60) calendar days; (iii) the other Party becomes insolvent or makes an assignment for the benefit of its creditors or an arrangement for its creditors pursuant to bankruptcy law; (iv) the other Party discontinues its business; (v) a receiver is appointed over all or substantially all of the other Party’s assets or business; or (vi) the other Party is
dissolved or liquidated.
e) This Agreement may be terminated by 9Media Online INC immediately upon 9Media Online’s sole determination that Publisher is using the 9Media Online Inc Platform in such a manner that could damage or cause injury to the Advertising Services or the 9Media Online Inc Platform.
f) This Agreement may be terminated by either Party without cause by serving written notice on the other Party in accordance with the Termination for Convenience Notice Period.
g) Upon termination of this Agreement, all undisputed amounts due to any Party (prior to termination) shall be paid in accordance with this Agreement.
9) Confidentiality –
Each Party acknowledges that it or its employees may be exposed to proprietary or Confidential Information of the other Party, including without limitation information concerning: products and services and the pricing for same and any royalty or fee arrangements; customers, prospective customers, suppliers or employees; business methods, procedures and techniques, technology; marketing information or plans; trade secrets; or commercially sensitive information.
a) Each Party agrees: (i) not to disclose the Confidential Information of the other Party to anyone except its employees, contractors and advisors on a strict need to know basis and subject to a written duty of confidence; (ii) to use the Confidential Information strictly for the performance or receipt of this Agreement; and (iii) to use all commercially reasonable endeavours to protect the confidentiality of the other Party's Confidential Information, which as a minimum will include applying the same care that it applies to protect its own similar information, but in no event less than reasonable care during the Term of this Agreement and for 1 year after the end of the Term.
b) The obligations of confidentiality under this Agreement shall not apply to any information that: (i) has entered the public domain except where such entry is the result of a party’s breach of this Agreement; (ii) is obtained by the receiving party on a non-confidential basis from a third party who has the right to disclose such information; or (iii) was developed by the receiving party without use of the Confidential Information.
c) Each Party may disclose Confidential Information to the extent required: (i) by securities laws; (ii) to comply with a court or governmental order, or with applicable law; provided that, to the extent permitted by applicable law, the party required to make such a disclosure gives reasonable notice to the other party to contest such order or requirement; or (iii) to establish or preserve its rights under this Agreement.
d) 9Media Online Inc. may disclose Publisher's Confidential Information to its partners and/or advertisers to assist with purchasing advertising inventory, utilizing the system, or for any other reason to perform its obligations under this Agreement.
e) The Parties agree that any actual or threatened breach of this Section 9 will constitute immediate, irreparable harm to the innocent Party for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach.
10) Representations & Warranties
a) Each Party represents and warrants that: (i) it has the full corporate right, power and authority to enter into this Agreement and to perform the acts required of it under this Agreement; (ii) its execution of this Agreement and performance of its obligations under this Agreement do not and will not violate any other agreement to which it is a Party; (iii) this Agreement will constitute the legal, valid and binding obligation of such Party when executed and delivered; and (iv) any and all activities it undertakes in connection with this Agreement will be performed in compliance with all applicable laws, rules and regulations.
b) Publisher further represents and warrants that: (i) the Publisher Properties and their contents and any other Intellectual Property Rights used by the Publisher do not require the consent of any other entity for the Publisher to use them in connection with its obligations under this Agreement; (ii) the Publisher Properties and their contents are owned exclusively by the Publisher, free and clear of any attachments, liens, encumbrances, or adverse claims; (iii) neither the Publisher’s present or contemplated activities, products, or services infringe, misappropriate, dilute, impair, or constitute unfair competition with respect to any third party's Intellectual Property Rights; (iv) all content, products, and services on its web site are legal to distribute and that it owns or has the legal right to use them; (v) use of the Publisher Properties by 9Media Online Inc. or any of 9MO’s advertisers will not infringe any third party's rights, including any Intellectual Property Rights; and (vi) the Publisher Properties do not and will not contain any content which violates any applicable law or regulations.
11) Quality Assurance
Publisher shall maintain the Publisher Properties to meet, at a minimum, commercially prevalent industry standards. Publisher acknowledges that 9Media Online INC has no responsibility to review the content of the Publisher Properties. Publisher shall ensure that the Publisher Properties shall be of a quality and design that allows 9Media Online Inc. the opportunity to maximize its representation of the Publisher Properties.
12) Disclaimers –
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, AND EACH PARTY EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR PERFORMANCE. THE SERVICES PROVIDED BY 9MEDIA ONLINE INC ARE PROVIDED ON AN “AS-IS, AS AVAILABLE” BASIS. 9MEDIA ONLINE INC AND ITS SUPPLIERS, LICENSORS, AND PARTNERS DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE 9MEDIA ONLINE INC PLATFORM WILL BE CORRECT, UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE 9MEDIA ONLINE INC. PLATFORM OR THE SERVERS THAT MAKE IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, 9MEDIA ONLINE INC MAKES NO GUARANTEE REGARDING THE NUMBER, QUALITY, OR CONTENT OF ANY ADVERTISEMENTS OR THE TIMING OF DELIVERY OF SUCH ADVERTISEMENTS. 9MEDIA ONLINE INC RESERVES THE RIGHT AT ALL TIMES, AT ITS DISCRETION, AND WITHOUT NOTICE, TO REMOVE OR REFUSE TO DISTRIBUTE ANY 9MEDIA ONLINE INC ADVERTISEMENTS. 9MEDIA ONLINE INC DOES NOT WARRANT THE RESULTS OF USE OF THE 9MEDIA ONLINE INC PLATFORM. PUBLISHER ACKNOWLEDGES THAT 9MEDIA ONLINE INC. MAY MODIFY OR SUSPEND ITS SERVICES AND THE 9MEDIA ONLINE INC. PLATFORM AT ANY TIME IN ITS SOLE DISCRETION AND WITHOUT NOTICE.
a) Publisher hereby agrees to indemnify, defend, and hold harmless 9Media Online Inc. and its officers, directors, members, managers, agents, parent, subsidiaries, affiliates, and employees from and against all third party claims, actions, liabilities, losses, expenses, damages, and costs (including, without limitation, reasonable attorneys' fees) that may at any time be incurred by any of them by reason of any claims, suits or proceedings: (i) for libel, defamation, violation of infringement of any third party's Intellectual Property Rights in connection with the Publisher Properties (except for advertisements supplied by 9Media Online Inc. ); (ii) relating to a contaminated file, virus, worm, or Trojan horse originating from the Publisher Properties (other than through Advertising supplied by 9Media Online Inc. ); (iii) arising out of any claim regarding invalid traffic, click fraud or misrepresentative traffic originating from Publisher Properties; and/or (iv) breach of representations and warranties hereunder.
b) 9Media Online Inc. will not be subject to any liability whatsoever for: (i) any failure to provide reference or access to all or any part of the 9Media Online Inc. Platform or websites due to systems failures or other technological failures of 9Media Online INC or of the Internet; (ii) delays in delivery and/or non-delivery of creative, including, without limitation, difficulties with a customer or creative, difficulties with a third-party server, or electronic malfunction; and (iii) errors in content or omissions in any Advertising.
14) Limitation of Liability
a) Nothing in this Agreement will operate to exclude or limit the liability of any Party for: (i) death or personal injury; (ii) fraud and/or fraudulent misrepresentation; or (iii) any other liability which it cannot by law limit or exclude.
b) Subject to Section 14(a), in no event will either Party be liable to the other for any incidental, special, indirect, punitive, exemplary or consequential loss arising from a breach, including without limitation, loss of profits, revenue, business or goodwill, whether in an action in contract, tort (including negligence and strict liability) or otherwise, even if that Party has been advised or knew of the possibility of such damages.
c) SUBJECT TO SECTION 14(A), IN THE EVENT OF ANY BREACH OF THIS AGREEMENT BY 9MEDIA ONLINE INC. , OR OF ANY LOSSES OR INJURIES TO PUBLISHER ARISING OUT OF THIS AGREEMENT,
THE TOTAL CUMULATIVE LIABILITY FOR 9MEDIA ONLINE INC. FOR SUCH BREACHES, LOSSES,
AND INJURIES WILL BE LIMITED TO THE AMOUNT OF FEES ACTUALLY PAID BY 9MEDIA ONLINE INC. TO PUBLISHER DURING THE 6 MONTH PERIOD PRIOR TO THE TIME SUCH LIABILITY AROSE
UNDER THIS AGREEMENT. THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY
SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.
a) Assignment - This Agreement may not be assigned or subcontracted by either Party without the prior written consent of the other Party (not to be unreasonably withheld or delayed), provided that 9Media Online INC may assign or subcontract this Agreement without Publisher's consent to a parent, subsidiary, affiliate, or to any entity that acquires 9Media Online INC or all or substantially all of its stock or assets.
b) Independent Contractor Relationship – The Parties are independent contractors, and no agency, partnership, or other form of joint venture or employment relationship is intended or created by this Agreement.
c) Compliance with Laws – Each Party shall comply with all applicable laws, enactments, orders, regulations,
standards and other similar instruments that relate to the performance of its business.
d) Counterparts - This Agreement may be executed in any number of counterparts, each of which, when so executed and delivered, shall be deemed an original, and all of which shall constitute one and the same Agreement. The Parties confirm that: (i)an electronic version of this Agreement is deemed to be in writing; and (ii) where a Party has used an electronic signature to indicate its acceptance of the terms of this Agreement, the Parties agree that such electronic signature is a valid means of establishing the authenticity and integrity of the signature for the purposes of binding the Parties.
e) Severability – In the event any provision or part provision of this Agreement is or becomes invalid, illegal or
unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed
f) Governing Law; Jurisdiction – This Agreement shall be governed by the laws of the State of Washington, without regard to choice of law principles. Each Party hereby consents to the personal jurisdiction and venue of the state and federal courts in the City of Seattle and County of King, Washington, and agrees to receive service of process at the address set forth in this Agreement.
g) Entire Agreement – Except in respect of any fraudulent misrepresentation, this Agreement with all exhibits hereto constitutes the entire understanding between the Parties with respect to the subject matter of this Agreement and supersedes any previous or contemporaneous oral or written arrangements, representations or understandings relating to the subject matter of this Agreement.
h) Amendment –No variation of this Agreement will be effective unless made in writing, signed by or on behalf of the Parties and expressed to be a variation, except for modifications to Publisher payouts and inventory, which may be made through email confirmations.
i) Force Majeure - A delay by either Party in performing its obligations will not be a breach of this Agreement
if caused by fire, flood or other event beyond the reasonable control of such Party. The affected Party will notify the other Party of such event and resume performance as soon as possible.
j) No Waiver – In no event shall failure or delay on the part of either Party in enforcing any provision, right or remedy provided in this Agreement be or be deemed to be a waiver of any subsequent breach of the same or
any other provision of this Agreement.
k) Survival – Any terms of this Agreement that expressly survive termination or expiration, or by their nature ought to survive termination or expiration, will survive, including but not limited to provisions regarding confidentiality, disclaimers, exclusions and limitation of liability, indemnification, effect of termination, controlling law and jurisdiction, notices and other provisions of interpretation and enforcement.