Nexage, Inc
Mobile ASP Publisher Ad Optimization Agreement
THIS MOBILE ASP PUBLISHER AD OPITIMIZATION AGREEMENT (“Agreement”) is entered into as of the online account registration (the “Effective Date”) by and between NEXAGE, Inc. (“NEXAGE”), a Delaware corporation, with its business offices located at 400 Fifth Avenue, Suite 505 Waltham, MA 02451, and you, representing yourself or your company (“PUBLISHER”).
1. The Services:
(a) Scope: Subject to the terms and conditions of this Agreement, NEXAGE will provide a hosted advertisement optimization services (NEXAGE Services) for PUBLISHER to enable advertisements in PUBLISHER’s mobile services (“PUBLISHER Services”) to PUBLISHER’s end users (hereafter “end users”).
(b) Operation of the Services: NEXAGE will ensure that the NEXAGE Services are available to PUBLISHER and end users throughout the Term. As between the parties, NEXAGE will be responsible for (i) operating, hosting, and making available the NEXAGE Services; (ii) collecting all advertising revenues if advertising is sold by NEXAGE; and (iii) collecting all taxes associated with the sale of services and remitting such taxes to the appropriate taxing authorities if applicable; and PUBLISHER will be responsible for (i) the creation, marketing and promoting of the PUBLISHER Services; (iii) collecting all advertising revenues if advertising is sold by PUBLISHER; and (iv) collecting all taxes associated with the sale of services and remitting such taxes to the appropriate taxing authorities if applicable. NEXAGE will assist PUBLISHER to resolve problems or issues end users may have with the NEXAGE Services.
2. Data and Information:
(a) NEXAGE shall provide PUBLISHER with access to online reports of NEXAGE Services.
(b) During the Term of this Agreement, NEXAGE may receive and store data and information passed from PUBLISHER, about individual end users who use the NEXAGE Services, including without limitation, user’s mobile phone number, gender, age and any other demographic information (collectively “End User Information”). Notwithstanding anything to the contrary contained herein, NEXAGE agrees that its use of the End User Information will be in accordance with (i) all applicable federal, state and local laws and regulations, (ii) the NEXAGE privacy policy under which the End User Information was used and (iii) and solely for the purposes contemplated herein. NEXAGE will also store user log files, behavioral, contextual, geo-location and other data to perform reporting, tracking and advertising. Likewise, PUBLISHER agrees that its use of the aforementioned will be in accordance with (i) all applicable federal, state and local laws and regulations and (ii) the PUBLISHER privacy policy under which the End User Information was collected.
3. Fees and Revenue Share:
The parties acknowledge and agree that advertising in various formats will be served in the PUBLISHER Services, typically, but not limited to, text banner ads, image banner ads on mobile web pages, SMS, games, applications and video ads within the video content. PUBLISHER or NEXAGE and their Ad partners will sell advertising in such advertising spaces and NEXAGE will serve advertising in such advertising spaces. Fees and revenue share between the parties will be negotiated.
4. Payments:
(a) Payment Terms. Where revenue is generated by NEXAGE or one of our Ad partners, payment will be collected by NEXAGE and paid to PUBLISHER on Net 30 terms after collection from Ad partners. NEXAGE will not be responsible for collecting receipts or for payments to PUBLISHER for revenues earned via direct sales efforts of PUBLISHER, or via direct relationships that PUBLISHER has with its own third party Ad partners.
(b) Audit. Each party shall keep accurate and complete books and records relating to the performance of its obligations under this Agreement and any Net Advertising Revenue generate and/or collected by it under this Agreement. Either party, at its expense, and upon 10 days’ advance written notice to the other, shall have the right once during the Term of this Agreement and once during the twelve months after the end of the Term, to examine or audit books and records of the other party relating to revenues generated under this Agreement, at such other party’s offices during normal business hours, in order to verify the figures reported in any report and the amounts owed to such party under this Agreement. In the event any such audit reveals an underpayment of any amounts due under this Agreement, the auditing party shall be entitled to prompt payment of all amounts then due. In the event any audit shall reveal an underpayment of 5% of the amounts due for any calendar month, the audited party will reimburse the auditing party the reasonable cost of such audit together with the underpayment.
(c) Definition of Net Advertising Revenue: For purposes of this Agreement, “Net Advertising Revenue” shall mean the total revenues collected by NEXAGE from the sale of advertising space to any third party directly or indirectly via Ad Network partners, less any charges for taxes, refunds, Ad Network revenue share, and advertising agency fees, if any.
5. Press Release: NEXAGE and PUBLISHER may issue a joint press release based upon the relationship described in this Agreement. Language within the press release must be mutually agreed upon and may include quotes by both parties.
6. Additional Marketing & Promotion: NEXAGE and PUBLISHER may cooperate in mutually agreed upon promotional and marketing activities in connection with the PUBLISHER Services outlined below:
• During the term of the agreement, NEXAGE may, at its discretion, disclose on its website and in sales materials, that PUBLISHER is a Customer.
• PUBLISHER gives NEXAGE permission to publish a non-confidential 1-2 page Case Study on the PUBLISHER’s integration and usage of PUBLISHER Services. The content of the Case Study must be mutually agreed upon and may include quotes by both parties.
7. Warranty and Disclaimer: NEXAGE represents and warrants to PUBLISHER that: (i) NEXAGE has the power and authority to enter into and perform its obligations under this Agreement; (ii) to the best of NEXAGE’s knowledge, it currently has no restrictions that would impair its ability to perform its obligations under this Agreement; (iii) NEXAGE has all rights necessary to create, host, operate and/or provide the NEXAGE Services; (iv) the NEXAGE Services will not violate or infringe any common law or statutory right of any person or other entity including, without limitation, any contractual rights, proprietary rights, trademark, service mark or patent rights, or any rights of privacy or publicity, nor will it violate any law or regulation, nor shall it be unlawful or defamatory, nor will it contain any instructions, recipes or formulas that, if implemented, would result in injury; (v) NEXAGE will comply with all federal, state and local laws and regulations applicable to the performance of its obligations and the operation of the NEXAGE Services hereunder and will obtain all applicable permits, permissions, and licenses required of it in connection with its obligations and the operation of the NEXAGE Services hereunder; and (vi) NEXAGE will ensure that its use of End-User Information will comply with all federal, state and local laws and regulations. EXCEPT FOR THE FOREGOING, NEXAGE MAKES NO WARRANTY OF ANY KIND AND HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. Furthermore, you represent and warrant to NEXAGE that you have the power and authority, on your or your company’s behalf, to enter into and perform its obligations under this Agreement.
8. Indemnification
(a) By NEXAGE. NEXAGE shall indemnify, defend and hold harmless PUBLISHER, and each of its parents, subsidiaries and affiliates and their respective directors, officers, employees, agents, successors, and assigns against any and all judgments, claims, liabilities, settlements, penalties, costs and expenses (including reasonable attorneys’ fees, whether incurred as the result of a third party claim or a claim to enforce this provision) (“Liabilities”) paid or incurred by any of them in connection with claims by any third party to the extent that such Liabilities arise out of or relate to (i) the NEXAGE Services; or (ii) NEXAGE’s breach of any warranty, representation, covenant or agreement hereunder; provided that NEXAGE is given prompt notice of any such claim, reasonable cooperation and sole control over defense and settlement thereof.
(b) By PUBLISHER. PUBLISHER shall indemnify, defend and hold harmless NEXAGE, its parents, subsidiaries and affiliates and each of their respective directors, officers, employees, agents, successors, and assigns against any and all Liabilities paid or incurred by any of them in connection with claims by any third party to the extent such Liabilities arise out of or relate to or are attributable to PUBLISHER’s breach of any warranty, representation, covenant or agreement hereunder; provided that PUBLISHER is given prompt notice of any such claim, reasonable cooperation and sole control over defense and settlement thereof.
9. Confidentiality: Each party agrees that all business, technical and financial information it obtains from the other party that is marked “Confidential” or “Proprietary,” is the confidential property of the disclosing party (“Proprietary Information” of the disclosing party). Except as expressly allowed herein or as required by law, regulation or court order, the receiving party will hold in confidence and not use or disclose any Proprietary Information of the disclosing party during the Term or for one (1) year thereafter. Each party will be deemed to have met its obligations hereunder if it treats the other party’s Proprietary Information with the same degree of confidentiality it affords its own sensitive business information. Upon termination or expiration of this Agreement, or at the request of the disclosing party, the receiving party shall (at its option) return the Proprietary Information to the disclosing party, or destroy it and, upon the disclosing party’s request, certify that it has taken such action. The receiving party shall not be obligated under this Section 8 with respect to information the receiving party can document: (i) is or has become readily publicly available without restriction through no fault of the receiving party or its employees or agents; (ii) is received without restriction from a third party lawfully in possession of such information; (iii) was rightfully in the possession of the receiving party without restriction prior to its disclosure by the other party; or (iv) was independently developed by employees or consultants of the receiving party without access to such Proprietary Information.
10. Limited Liability: EXCEPT WITH REGARD TO THEIR RESPECTIVE INDEMNIFICATION OBLIGATIONS UNDER SECTION 8 ABOVE, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL THEORY FOR (I) ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (II) ANY AMOUNT IN AGGREGATE OF THE REVENUE RECEIVED BY NEXAGE IN THE 12 MONTHS PRIOR TO THE DATE ON WHICH THE CAUSE OF ACTION AROSE OR (III) ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.
11. Term and Termination: This Agreement shall have a term of twelve (12) months beginning on the Effective Date (the “Term”), unless terminated earlier as provided in this Agreement. This Agreement will renew automatically for subsequent twelve (12) month terms (“Subsequent Terms”) unless notice of non-renewal is received at least thirty (30) days prior to the expiration of the then-current term, or unless terminated sooner by the mutual agreement of both parties. The Term and Subsequent Terms (if any) shall be referred to collectively as the “Term.” Notwithstanding the foregoing, either party may terminate this Agreement immediately upon written notice at any time during the Term. Any and all provisions or obligations contained in this Agreement which by their nature or effect are required or intended to be observed or performed after termination of this Agreement will survive the expiration or termination of this Agreement and remain binding upon and for the benefit of the parties, their successors and permitted assigns.
12. Notice: All notices and requests in connection with this Agreement shall be deemed given when personally delivered, upon delivery via overnight courier (e.g., FedEx), or certified or registered, return receipt requested, and addressed as follows or such other address as such party last provided to the other by written notice.
To NEXAGE:
400 Fifth Ave, Suite 505
Waltham, MA 02451
Attention: Legal Counsel
To PUBLISHER:
Address on registration
13. Miscellaneous: Each party shall be and act as an independent contractor and not as partner, joint venturer, or agent of the other. Nothing contained herein shall be deemed to create a relationship of joint venture, principal and agent, partnership or similar relationship between the parties and neither party shall hold itself out to the contrary. Nothing contained herein shall be deemed to allow either party to create or assume any obligations on behalf of the other party for any purpose whatsoever. This Agreement and the rights, obligations and licenses herein, shall be binding upon, and inure to the benefit of, the parties hereto and their respective heirs, successors, assigns, and personal representatives. Neither party shall assign this Agreement in whole or part without the prior written consent of the other party except that either party may assign this Agreement in connection with a merger, reorganization or sale of a substantial all of a party’s assets. This Agreement, including all appendices hereto, contains the entire understanding of the parties regarding its subject matter and supersedes any and all other agreements and understandings, whether oral or written, with respect to the subject matters covered herein. No changes or modifications or waivers are to be made to this Agreement unless evidenced in writing and signed for and on behalf of both parties. If any portion of this Agreement is held to be illegal or unenforceable by a court of competent jurisdiction, that portion shall be restated, eliminated or limited to the minimum extent necessary so that this Agreement shall reflect as nearly as possible the original intention of the parties and the remainder of this Agreement shall remain in full force and effect. This Agreement shall be governed by and construed in accordance with the laws of the State of Massachusetts without regard to the conflicts of laws provisions thereof. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover reasonable costs and reasonable attorneys’ fees. This Agreement may be executed in separate counterparts which, taken together, shall constitute one agreement. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof. Ambiguities, inconsistencies or conflicts in this Agreement will not be strictly construed against either party but will be resolved by applying the most reasonable interpretation under the circumstances, giving full consideration to the parties’ intentions at the time this Agreement is entered into and common practice in the industry.