MILLENNIAL MEDIA, INC. ADVERTISING SERVICES PUBLISHER CONDITIONS
Capitalized terms used and not defined in these Publisher Conditions have the meanings given to them in the Millennial Publisher Terms (the “Publisher Terms”), which are incorporated herein by reference. These Publisher Conditions, together with the Publisher Terms, are collectively referred to as the “Agreement” or the “Mobile Advertising Agreement”. In the event of any inconsistency between these Publisher Conditions and the Publisher Terms, the Publisher Terms shall control.
1. Objective: The Parties wish to enter into a mobile advertising agreement that will enable the placement of certain advertisements (“Advertising” or “Advertisement”) from advertisers (“Advertisers”) on select mobile websites and mobile applications published by Publisher (“Publisher Content”) for the specified Term (the foregoing shall be the “Purpose” of this Agreement). This Agreement shall allow Millennial to sell advertising inventory on the Publisher Content through separate systems that are optimized by Millennial to drive advertising revenue for the Publisher. These systems include (a) a supply side platform and programmatic exchange that provides for optimization across third party ad networks and programmatic buyers, allowing for the sale of Advertising (the “Platform”) and (b) placement of Advertising through Millennial’s non-programmatic, direct-sold, and managed demand capabilities (the “Network”).
2. Millennial Media Responsibilities:
(a) Subject to the terms and conditions of this Agreement, Millennial hereby agrees to provide a service to Publisher whereby Millennial will enable Advertising using Millennial’s proprietary Technology (as defined below) to Publisher Content during the Term, either through the Platform (the “Platform Services”) or the Network (the “Network Services”, and, together with the Platform Services, the “Service(s)”). The Platform Services shall include but not be limited to traffic management, yield optimization, billing and reporting. The Network Services shall include but not be limited to ad sales, ad serving, ad operations, trafficking, campaign management, creative, invoicing and the compilation of relevant statistical data.
(b) Millennial agrees to perform the following pursuant to this Agreement: (i) provide any and all necessary enabling tags and technology, including, without limitation, Millennial’s Software Development Kit (collectively, Millennial’s “Technology”) to Publisher, (ii) serve and deliver Advertising to Publisher Content through the Services and (iii) provide access to Publisher for the Millennial reporting console (the “Reporting Console”). Notwithstanding the foregoing, Millennial makes no guarantee that any level or amount of Advertising shall be placed in Publisher Content.
3. Publisher Responsibilities:
(a) Subject to the terms and conditions of this Agreement, Publisher agrees to use commercially reasonable efforts to provide advertising inventory to Millennial during the Term.
(b) Publisher agrees (i) to install and incorporate the Technology, including any updates, fixes or patches provided by Millennial from time to time, in the Publisher Content in accordance with instructions provided by Millennial, and (ii) to maintain throughout the Term all software codes and tags necessary for Millennial to serve Advertising.
(c) Publisher shall use commercially reasonable efforts to provide even and consistent distribution of Advertising on the Publisher Content and shall immediately inform Millennial of any Publisher action that will increase or reduce expected advertising inventory on the Publisher Content.
(d) Publisher shall not alter, modify or otherwise interfere with the operation of any of the Advertising or any link contained within any click-through Advertisement. Publisher shall not manipulate Technology or use any mechanical or other means to artificially inflate impressions or click-through traffic counts, and shall not encourage or authorize others to do so. In addition, Publisher shall promptly notify Millennial if Publisher suspects that any third party may be tampering with, abusing or manipulating the Technology or the Advertising on the Publisher Content. In the event of misuse and/or abuse of Technology or Advertising by Publisher, Publisher shall not be entitled to any revenue associated with the applicable campaign(s). Publisher acknowledges and agrees that Millennial shall, in its sole discretion, regularly review impressions, click-throughs or other actions with respect to Advertising. No revenue share will become due to Publisher for actions that Millennial determines, in its sole discretion, are fraudulent or improper. In addition, Millennial reserves the right to terminate this Agreement immediately, without giving Publisher an opportunity to cure, if Millennial reasonably determines that Publisher has in any way manipulated or used artificial means to increase impressions, click- throughs or other actions, or has encouraged or authorized others to do so.
(e) Publisher agrees that it shall be solely and exclusively responsible for the Publisher Content, and that Millennial has no responsibility, other than with respect to Advertising, under the terms of this Agreement, to review or approve the Publisher Content.
(f) Publisher shall ensure that Publisher Content is not defamatory, pornographic, obscene, hate-mongering, or otherwise illegal and/or objectionable.
(g) Publisher shall ensure that to the extent it transmits, transfers, or otherwise provides data to Millennial, through the Technology or otherwise, it shall do so in compliance with all applicable laws, rules, and regulations, and the requirements set forth in Section 6, below.
4. Fees and Payments:
Millennial shall pay Publisher its share of revenues within sixty (60) days after the completion of the month in which such revenues are collected. Millennial shall be responsible for all invoicing, billings and collections from Advertisers, ad networks and programmatic buyers. For purposes of this Agreement, “Net Revenues” shall mean actual collections from Advertisers made by Millennial minus any taxes, rebates, refunds, ad serving or bidder fees, revenue share, agency fees, third party fees and commissions, make-goods and/or other set-offs of any kind, if any.
5. Reservation of Rights:
(a) Millennial grants to Publisher the non-exclusive and non-transferable (except as permitted pursuant to Section 14 of these Conditions) right to deploy and use the Reporting Console during the Term, to be provided to Publisher by Millennial. Publisher shall be able to access and utilize the Reporting Console by way of a secure, password-protected web-based extranet operated by Millennial, for purposes of generating management reports. Such reports may include consumer impressions, consumer clicks, consumer actions, revenues generated, delivery by carrier, and other data related to the delivery of Advertising on the Publisher Content by the Services. Millennial grants to Publisher the non-exclusive and non-transferable (except as permitted pursuant to Section 14 of these Conditions) right to use the Technology during the Term, pursuant to this Agreement. Publisher has the right to use Campaign Data (as defined below) for any internal purpose related to Publisher’s business, provided that such use complies with the Relevant Privacy Requirements, all applicable laws and Publisher’s obligations pursuant to Section 6, below.
(b) Millennial is the exclusive supplier of the Services and the exclusive owner of all right, title and interest in and to the Technology. In addition, Millennial is the exclusive owner of all right, title and interest in and to all software, databases and other aspects and technologies related to the Technology, the Services, and any enhancements thereto. Publisher shall not use the Technology or any Campaign Data except pursuant to the limited rights expressly granted and as specifically set forth in this Agreement. Publisher acknowledges that Millennial shall retain all proprietary rights in the Services and the Technology (including all software, source codes, modifications, updates and enhancements thereof), the names “Millennial”, “Millennial Media”, “MYDAS”, “Millennial Server”, “Nexage”, or any derivatives thereof, and any other trademarks and logos which are owned or controlled by Millennial and made available to Publisher under this Agreement.
6. Privacy Requirements and Campaign Data:
(b) The Parties acknowledge that data collected by Publisher regarding users of Publisher Content (“User Data”) shall belong to Publisher. Notwithstanding the foregoing, Millennial may collect, receive and/or compile certain data that is non-PII during the course of providing Advertising pursuant to this Agreement (hereinafter referred to as “Campaign Data”). Campaign Data may include, without limitation, information concerning the content delivered by the Publisher, information regarding the device, location and/or user passed or otherwise transmitted by Publisher to Millennial, advertising impressions served to users, user interaction with advertising and/or content accessed by consumers through the Services. Notwithstanding that some Campaign Data may also be User Data, Millennial may use and disclose Campaign Data: (i) for Millennial’s reporting purposes as may be provided, in aggregate and/or non-PII form only, to customers, potential customers and/or disclosed to the general public; (ii) if required by any court order or process, law, or governmental agency; and (iii) in aggregate or non-PII form only, for other Millennial business purposes, including without limitation optimization and/or ad-decisioning. In addition to the foregoing, Millennial may use User Data and Campaign Data as may be necessary to provide and improve the Services, including the passing of such information to potential advertising buyers in order to enable and inform the buying decision.
7. Press Release and Marketing: The Parties may, with written approval from the other Party, issue a press release based upon the relationship described in this Agreement (excluding the financial conditions). Language within the press release will be mutually agreed upon by the Parties. During the Term, Millennial may, at its discretion, disclose on its website and in sales materials that Publisher is a customer.
8. Warranty and Disclaimer:
(a) Millennial Media represents and warrants to Publisher that: (i) Millennial Media has all necessary rights for Advertising for the purposes described herein; (ii) Millennial Media has the power and authority to enter into and perform Millennial Media’s obligations under this Agreement; (iii) to the best of Millennial Media’s knowledge, it currently has no restrictions that would impair its ability to perform its obligations under this Agreement; and (iv) performance of its obligations hereunder shall be in compliance with all applicable laws, rules and/or regulations.
(b) Publisher represents and warrants to Millennial Media that: (i) Publisher has all necessary rights for the content displayed on all Publisher Content where Millennial Media’s advertising will be displayed; (ii) Publisher has the power and authority to enter into and perform its obligations under this Agreement; (iii) to the best of Publisher’s knowledge, it currently has no restrictions that would impair its ability to perform its obligations under this Agreement; and (iv) performance of its obligations hereunder shall be in compliance with all applicable laws, rules and/or regulations.
(c) EXCEPT FOR THE FOREGOING, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND AND EACH PARTY HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
9. Confidentiality: Each Party agrees that all business, technical and financial information it obtains from the other Party is the confidential property of the disclosing Party (“Proprietary Information” of the disclosing Party). Except as expressly allowed herein, the receiving Party will hold in confidence and not use or disclose any Proprietary Information of the disclosing Party. The receiving Party shall not be obligated under this Section 9 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 RESPECT TO INDEMNIFICATION OBLIGATIONS HEREIN, 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 OR (II) ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES. MILLENNIAL’S TOTAL, AGGREGATE LIABILITY TO PUBLISHER FOR ALL CLAIMS ARISING UNDER OR RELATING TO THIS AGREEMENT IS LIMITED TO THE NET AMOUNT PAID TO PUBLISHER BY MILLENNIAL IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM.
(a) Millennial Media agrees to defend, indemnify, and hold Publisher harmless from any liability, damages, costs and expenses, including reasonable attorneys’ fees, resulting from a claim, settlement or proceeding brought by a third-party (“Third-Party Claim”) and relating to: (i) a breach of any material obligation, representation or warranty provided by Millennial Media under this Agreement; (ii) a claim that the Advertising or related content infringes or misappropriates any third party intellectual property right; or (iii) a claim that the Advertising or related content is libelous or defamatory or otherwise violates the rights of any third party. Publisher will promptly notify Millennial Media in writing of any such claim. Publisher shall give Millennial Media sole control over the defense and/or settlement of any such claim, except that Millennial Media will not agree to any settlement or compromise that would require Publisher to make any payments or bear any obligations unless Millennial Media obtains Publisher’s prior written approval, which approval shall not be withheld unreasonably. Publisher shall give Millennial Media reasonable assistance in such defense at Millennial Media’s expense.
(b) Publisher agrees to defend, indemnify, and hold Millennial harmless from any liability, damages, costs and expenses, including reasonable attorneys’ fees, resulting from a Third-Party Claim and relating to: (i) a breach of any material obligation, representation or warranty provided by Publisher under this Agreement; (ii) a claim that Publisher’s content or related content infringes or misappropriates any third party intellectual property right; or (iii) a claim that Publisher’s content or related content is libelous or defamatory or otherwise violates the rights of any third party. Millennial Media will promptly notify Publisher in writing of any such claim. Millennial Media shall give Publisher sole control over the defense and/or settlement of any such claim, except that Publisher will not agree to any settlement or compromise that would require Millennial Media to make any payments or bear any obligations unless Publisher obtains Millennial Media’s prior written approval, which approval shall not be withheld unreasonably. Millennial Media shall give Publisher reasonable assistance in such defense at Publisher’s expense.
12. Term and Termination: Either Party may terminate this Agreement immediately in the event that the other Party has materially breached the Agreement and fails to cure such breach within fifteen (15) days of receipt of notice by the non-breaching Party, setting forth in reasonable detail the nature of the breach. Notwithstanding the foregoing, Millennial may immediately suspend the placement of Advertising in Publisher Content, if it has a good faith belief that Publisher is in violation of Section 3, above. 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.
13. Notice: All notices under the Agreement shall be in writing and shall be sent to a party at the address shown on the Publisher Terms. All notices and requests in connection with this Agreement shall be deemed given (a) when personally delivered; (b) three (3) days after being sent by the United States of America mail, postage prepaid, certified or registered, return receipt requested; or (c) one (1) day after being sent by a reputable overnight delivery service. Notices to Millennial must be sent in addition to: General Counsel, Millennial Media, Inc., 2400 Boston Street, Suite 201, Baltimore, MD 21224.
14. Miscellaneous: Each Party shall be and act as an independent contractor and not as partner, joint venturer, or agent of the other. 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 part of the assets or business to which this Agreement relates. Notwithstanding the foregoing, Publisher may not assign this Agreement to a direct competitor of Millennial Media without Millennial Media’s prior written consent. This Agreement contains the entire understanding of the Parties regarding its subject matter and supersedes all other agreements and understandings, whether oral or written. 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, 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 Maryland without regard to the conflicts of laws provisions thereof. Each Party hereby submits to the exclusive jurisdiction of the United States District Court for the District of Maryland and of any Maryland state court sitting in the City or County of Baltimore, for purposes of all legal proceedings arising out of or relating to this Agreement and the subject matter hereof.