RTB Auction Exchange Services Agreement
Last Updated: March 6th, 2018
PLEASE READ THIS AGREEMENT CAREFULLY. BY ACCESSING OR USING THE SERVICE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT ACCESS OR USE THE SERVICE. YOU AND AIRPUSH AGREE TO BINDING ARBITRATION TO RESOLVE ANY DISPUTE ARISING FROM THIS AGREEMENT OR RELATING TO THE AIRPUSH TECHNOLOGY AND SERVICE. ARBITRATION PREVENTS YOU FROM SUING IN COURT OR HAVING A JURY TRIAL. (SEE SECTION ON ARBITRATION BELOW FOR FURTHER DETAILS).
1. DEFINED TERMS. In addition to terms defined elsewhere in this Agreement, the following terms will have the following specified meanings:
“Advertisement” or “Ad” means an advertisement represented by text, graphics, audio or video, or by rich media provided by Buyers.
“Ad Inventory” means Airpush’s Publisher’s Ad inventory on and relating to all of its and its Publisher’s respective Publisher Properties, which can be viewed by end-users on Mobile Devices.
“Airpush Exchange” means the real time bidding (RTB) exchange platform hosted and operated by Airpush that will hold a first price auction for Ads to be matched on Ad Inventory.
“Buyer” means buyers, advertisers, ad networks, agencies, publishers and other third party clients who have a contractual agreement with Company to use the Company’s DSP.
“Content Guidelines” means the content guidelines located at http://www.airpush.com/acceptable_use_policy/, which may be updated by Airpush from time to time.
“DSP” means the Company’s demand side platform and web interface through which it helps Buyers manage advertising on exchanges.
“Mobile Device” means wireless mobile devices such as telephones, tablets, netbooks, and other wireless devices from which mobile end-users access Ad Inventory.
“Publisher” means an entity or an individual that owns or makes available mobile website(s) or mobile application(s) for the purposes of offering Ad Inventory for sale on the DSP.
“Publisher Properties” means mobile websites, mobile-powered applications by Publishers and any other material accessible by an end user on a Mobile Device whether existing before or after the date of this Agreement on which Airpush has a contractual right to place Ads, either directly or indirectly.
“Publisher Revenue” means all the net revenue payable to Company from Buyers for Ad impressions for Ad Inventory sold through the DSP, minus any standard deductions and any refunds to such Buyers.
“Winning Bid” means the highest bid by a Buyer for an impression on the Ad Inventory. The Winning Bid will be the price at which the impression will be sold to the Buyer.
2. COMPANY SERVICE.
2.1 Service Description. “Service” means the DSP hosted and operated by Company and related services that will enable Airpush to receive Ads for auction on the Airpush Exchange. Among other things, the Service will interact with the Airpush Exchange to enable (a) Airpush to approve any Buyers that are permitted to bid on Airpush’s Ad Inventory, (b) Airpush to establish bid criteria for its available Ad Inventory, (c) Airpush to send bid requests to prospective Buyers through the DSP, (d) Buyers to manually or programmatically bid on Ad Inventory, (e) Airpush to determine Winning Bids via the DSP auction mechanism, (f) Airpush to receive Ads to deliver to Ad Inventory. The Service will also include such other features and functionality: (x) included in the Company DSP, (y) that Company makes available to other customers that utilize the DSP or (z) are otherwise agreed to by the parties from time to time.
2.2 Provision of Service. Company will ensure that the Service fully meets and conforms to Company’s published specifications a current copy of such other requirements and specifications as may be agreed to by the parties from time to time (“Specifications”) starting no later than the Activation Date and continuing throughout the Term.
2.3 Implementation. Company will work with Airpush to ensure that the Service is integrated with the Airpush Exchange so that all of the features and functionalities of the Service are fully operational, accessible by Airpush and its Publishers, and conform with the Specifications with a goal to publicly launch the Service
2.4 Support. Company will provide support to Airpush regarding the Service as agreed upon by the parties from time to time. Company will provide support to Airpush in connection with the setup, integration and use of the Service. If necessary, Airpush and Company will work together in good faith to mutually resolve any issues. Company will notify Airpush promptly of any factor, occurrence or event coming to its attention that is likely to cause any material interruption in the availability of the Services.
2.5 Reports. As part of the Services under this Agreement, Company will provide Airpush with a password-protected web page on the Company website where Airpush, through Company’s user interface, will be able to access all records of Buyer delivering Advertising to the Ad Inventory including impression reports, revenue reports, reports on eCPM (i.e., effective CPM) or other applicable measure.
2.6 Enhancements. From time to time, Airpush may request new features, functionality, and other improvements or enhancements to the Service (“Requested Enhancements”). Company will cooperate and work together with Airpush to consider Requested Enhancements and, if agreed, to develop Specifications and implementation plans for such Requested Enhancements. Company will not unreasonably refuse to develop or delay development of a Requested Enhancement. If Company fails to provide Requested Enhancements as reasonably requested by Airpush, Airpush may terminate the Term of this Agreement upon notice with no further liability on the part of either party. If the parties agree upon a Requested Enhancement, Company will develop and implement the Requested Enhancements in accordance with the Specifications and implementation plans agreed to by the parties.
2.7 Bids. Company acknowledges that (a) it may not win an auction through its bid; (b) Airpush and its Publishers may choose not to allow Company or its Buyers not to bid on the Ad Inventory on the Publisher Properties at any time, for any reason; (c) bids may simultaneously compete against multiple other bids; and (d) Company and its Buyers will have no recourse for any transaction that does not actually take place; and (e) Airpush makes no guarantees regarding whether an auction will be won, impressions or conversions of Ads, or the timing and delivery of Ad impressions.
3.1 Revenue. Company will invoice Buyers for Ad impressions served to the Ad Inventory through the DSP within fifteen (15) days following delivery of the Advertisements. Each month, Company will use its best efforts to collect the Publisher Revenue due from Buyers. Nonetheless, Company will be solely responsible for payment of the Publisher Revenue to Airpush.
3.2 Monthly Statements. Company will pay Airpush the Publisher Revenue within thirty (30) days following the end of each calendar month during the Term. Any unpaid amounts owed will accrue to the next period. Company will provide Airpush with a monthly statement (the “Monthly Statement”) that includes the calculation of the Publisher Revenue. The Monthly Statement will also include a reconciliation of adjustments as set forth in this Agreement. Company will adjust the Publisher Revenue previously paid or charged to Airpush each month to account for actual Publisher Revenue in subsequent months. All amounts under this Agreement will be reported and paid in U.S. dollars. In the event Company fails to pay any amounts when properly due and payable to Airpush, then Company will promptly pay to Airpush, interest of one percent (1%) per month (compounded monthly) or the maximum amount permitted by law, whichever is less, accruing from the date the amount was due until the date the amount and applicable interest is paid. Each party will be responsible for all federal, state, and local sales, use, value-added, excise, duty or property taxes regarding its own services, facilities, and business. Company will pay all amounts under this Agreement by check, wire transfer, or electronic funds transfer to the following bank account.
DEPT LA 24387
Pasadena, CA 91185-4387
ABA Routing # 121140399
Account #: 3301220461
Silicon Valley Bank
3003 Tasman Drive
Santa Clara, CA 95054 USA
3.3 Discrepancies. The Monthly Statement will be deemed conclusive for the calculation of the Publisher Revenue unless (a) the methodology used by Company to calculate the Publisher Revenue is inconsistent with industry standards, in which case the parties will reasonably agree on an appropriate methodology, or (b) Airpush’s good faith determination of the amount owed differs by more than ten percent (10%) from the Monthly Statement supplied by Company, in which case the parties agree to discuss in good faith an appropriate reconciliation of the discrepancy and if after such discussion the parties cannot agree, then the parties agree to split the amount of the discrepancy and Company will pay Airpush 50% of the amount in dispute.
3.4 Audit. At all times following the Activation Date, Company will, upon reasonable prior written notice from Airpush, permit Airpush and its designated representative(s) to have access to, and examine, during Company’s regular business hours, those records which may be necessary to verify or determine the amounts owed by Airpush under this Agreement. Airpush and its designated representative will observe reasonable site access and other restrictions imposed by Company in order to maintain the confidentiality of Company’s books and records. Airpush will not be entitled to conduct more than two (2) such audits per calendar year. If an audit shows that Airpush overpaid Company, then Company will pay the amount of the overpayment to Airpush. Airpush will be responsible for the fees and costs of the audit, unless the audit shows an overpayment of five percent (5%) or more in which case Company will reimburse the reasonable fees and costs of the audit. The obligations in this paragraph will survive for two (2) years after the termination or expiration of the Term of this Agreement.
4. INTELLECTUAL PROPERTY
4.1 Grant. During the Term, Company grants to Airpush a non-exclusive, non-transferable, non-sublicensable right to use the Service as described in this Agreement. During the Term, Airpush grants to Company a limited, revocable, non-exclusive, non-transferable, non-sublicensable right to access the Airpush Exchange only to enable Buyers to bid on impressions to place Ads on the Ad Inventory.
4.2 License to Ads. Company grants Airpush and its Publisher Properties a license to serve and display on the Ad Inventory.
4.3 Limits. Subject to Section 4.1, each party reserves all of its right, title and interest in and to its technology (the Company Service and the Airpush Exchange), including future developments and enhancements (including Requested Enhancements).
5.1 Customer Information. The parties will only permit their employees who are directly involved in using, providing and/or supporting the DSP to access such information, will access and use this information only to the extent necessary to use, provide or support the Service, and will treat such information as Confidential Information of both parties and the applicable Publishers. Company must and will contractually require Buyers to maintain the confidentiality of any information about Publishers, Publisher Properties, Ad Inventory, Exchange Data, and end-users accessed through the Service.
5.2 Exchange Data. The Airpush Exchange and Service will generate data related to advertisers, Publishers, Buyers, Advertisements, Ad Inventory, Ad impressions and clicks, pricing, bidding, exchange metrics, transactions, user behavior, financial information, device information, location information, and other matters handled by the Service (“Exchange Data”). Airpush may use Exchange Data for any business purpose. Except for user information, Company may use Exchange Data (a) internally for any necessary business purpose (e.g., financial reporting and technology planning) and (b) externally if such data is aggregated with other Company-client data such that third parties cannot attribute the data or the Service to Airpush or for legitimate business purposes such as traffic quality or reconciliation. Under no circumstances may Company or its Buyers Repurpose any Exchange Data. “Repurpose” means to retarget a user or to append data to a non-public profile regarding a user for purposes other than performance of a particular Ad Campaign.
5.3 Technology. Company agrees that it will not utilize any technology or use data in any way that circumvents user-based or device-based preferences and will contractually require its Buyers to do the same.
6. AGREEMENTS AND POLICIES
6.2 Company acknowledges that Airpush has no obligation to monitor the content of any Ad. Airpush may refuse or remove to display any Ad through the Airpush Exchange if Airpush, in its sole discretion, determines that such Ad violates its Content Policies or otherwise may cause harm to Airpush or a third party.
6.3 Company and its Buyers agree to not collect any EU resident personal data through the Ad Inventory.
7. REPRESENTATIONS AND WARRANTIES; COMPLIANCE
7.1 Company Warranty. Company represents and warrants to Airpush that Company will not violate any applicable law or regulation in connection with the performance of the Services hereunder. Company further represents and warrants that it shall not violate any requirement in sections 5, 6, or 7 in regards to consumer privacy.
7.2 Airpush Warranty. Airpush represents and warrants to Company that Airpush will not violate any applicable law or regulation in connection with its use of the Services hereunder.
7.4.2 Company will comply with the Digital Advertising Alliance principles as applied to the mobile environment, including any rules on consumer notice and the use of consumer data, and contractually require its Buyers to comply with the same.
7.4.3 Company will not enable any Buyers to collect EU end user information unless such Buyer is located in the EU and abides by EU law or certified under the US-EU Safe Harbor (or any future successor of such program).
7.4.4 Company may not: (a) decompile, reverse engineer, or otherwise interfere with the Airpush Exchange; (b) copy, distribute, rent, sublicense, lease, or transfer any technology associated with the Airpush Exchange to any third party; (c) create derivative works based on the Airpush Exchange or using any Airpush Confidential Information; (d) alter, obscure, or remove any proprietary notices or marks that appear on the Ad Inventory, Ads, or the Airpush Exchange.
8. TERM AND TERMINATION
8.1 Term. The term of this Agreement begins on the Effective Date and, unless and until terminated by a party in accordance with this Agreement, will continue for one year (“Initial Term”) and will automatically be renewed for one year terms (each, a “Renewal Term”, collectively, the “Term”).
8.2 Termination. Either party may terminate this Agreement (a) for material breach, upon ten (10) days’ prior written notice of termination if the other party fails to cure the breach within such ten (10) day period; or (b) for convenience, upon thirty (30) days’ prior written notice of termination (email sufficient). Upon termination for any reason, Airpush’s right to use the Service shall immediately terminate and Company and Buyer’s right to collect data through the Service or otherwise bid on Ad Inventory shall immediately terminate. If termination by email,
8.3 Survival. Sections 4.2, 4.3, 5, 7, 8, 9, 10 and 11 of this Agreement will survive termination or expiration of this Agreement.
8.4 DISCLAIMER. EXCEPT AS SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, STATUTORY OR IMPLIED. AIRPUSH DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO THE AIRPUSH EXCHANGE AND THE AD INVENTORY, INCLUDING THE INFORMATION, CONTENT AND MATERIALS CONTAINED THEREIN.
8.5 LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, HOWEVER CAUSED, AND UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR THE OBLIGATION TO PAY FOR ANY AMOUNTS THAT ARE PROPERLY DUE AND PAYABLE UNDER THIS AGREEMENT (INCLUDING THE PUBLISHER REVENUE), NEITHER PARTY’S TOTAL AGGREGATE LIABILITY SHALL EXCEED (a) FOR ALL NON-INDEMNITY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT: THE PUBLISHER REVENUE EARNED BY AIRPUSH FOR THE NINE MONTHS PRIOR TO THE DATE THE LIABILITY FIRST AROSE (“NINE MONTH LIMIT”), AND (b) FOR INDEMNITY OBLIGATIONS: FIVE TIMES THE NINE MONTH LIMIT. NOTWITHSTANDING ALL OF THE FOREGOING, NOTHING IN THIS AGREEMENT SHALL LIMIT LIABILITY FOR BREACHES OF SECTIONS 4, 5, 7 OR 10.
9. MUTUAL INDEMNITY. Company will indemnify, defend and hold harmless Airpush and its directors, officers, employees and agents (and its and their respective successors, heirs and assigns) (the “Airpush Parties”) against any liability, damage, loss or expense (including reasonable attorneys’ fees and costs) incurred by the Airpush Parties in connection with any third-party claim arising out of or relating to (a) any allegation that the Service violates any applicable law or infringes any patent or other third party intellectual property right, or (b) any allegation that would constitute a breach of Sections 5, 6.1, 7 or 10. Airpush will indemnify, defend and hold harmless Company and its directors, officers, employees and agents, its and their respective successors, heirs and assigns (the “Company Parties”) against any liability, damage, loss or expense (including reasonable attorneys’ fees and costs) incurred by the Company Parties in connection with any third-party claim arising out of or relating to any allegation that would constitute a breach of its representations and warranties or section 10 of this Agreement. The indemnified party will provide the indemnitor with prompt notice of any claim (provided that the failure to promptly notify shall only relieve indemnitor of its obligation to the extent the indemnified party can demonstrate material prejudice from such failure) and, at the indemnitor’s expense, provide information and assistance reasonably necessary to defend such claim. The indemnitor will not enter into any settlement or compromise that would result in liability to the indemnified party without the indemnified party’s prior written consent, which shall not be unreasonably withheld or delayed.
10. CONFIDENTIALITY. “Confidential Information” means any information relating to or disclosed in the course of the Agreement, which is or should reasonably be understood to be confidential. The terms of this Agreement are the Confidential Information of each party (not to be disclosed by the other without the written consent of the other) and the Exchange Data is the Confidential Information of Airpush. The receiving party will use at least the same care to protect Confidential Information as it uses for its own similar information, but in no event less than reasonable care, and will use Confidential Information only for the purpose of fulfilling its obligations under this Agreement. The receiving party will promptly return or destroy the other party’s Confidential Information upon request of the other party. “Confidential Information” does not include information that (a) is or becomes part of the public domain through no fault of the receiving party; (b) was already in possession of the receiving party; or (c) was independently developed by the receiving party without violation of this Section. The receiving party may disclose Confidential Information if and to the extent it is required to do so by subpoena, court order or other governmental action, so long as the receiving party provides the disclosing party with advance notice so as to afford the disclosing party a reasonable opportunity to appear, object and obtain a protective order or other appropriate relief regarding such disclosure.
11.1 Company may not solicit or otherwise contact the Publishers from the Ad Inventory to circumvent the Airpush Exchange and buy media directly from such Publishers. The foregoing sentence is not intended to limit or restrict Company’s right to contact or work with any Publisher with whom Company has a pre-existing relationship prior to the Effective Date of this Agreement or Publishers that directly contact Company.
12.1 Neither party will make any public statement relating to the Agreement without the prior written approval of the other.
12.2 This is the entire agreement of the parties relating to this subject matter, and supersedes all prior commitments, negotiations and understandings with respect to the Services. This Agreement cannot be amended except by a writing signed by both parties. This Agreement cannot be transferred or assigned without prior written consent of the non-assigning party; provided, however, that either party may assign this Agreement (a) to an acquirer of substantially all of that party’s assets, stock or business by sale, merger or otherwise or (b) to a corporate affiliate. If any provision of this Agreement is unenforceable, the validity of the remaining provisions will not be affected. There are no third party beneficiaries to this Agreement. Any claim arising out of or related to this Agreement must be brought in the initiating party’s individual capacity and not as a plaintiff or class member in any class action or other similar proceeding.
12.3 Notices must be in writing and will be deemed given when (a) delivered personally, (b) sent by email, and if to Airpush to the following email address: firstname.lastname@example.org, if the sending party can confirm that the email was apparently sent successfully according to its ordinary technical records and does not receive an error notice and the email includes in the subject line “LEGAL NOTICE”. Notwithstanding the foregoing, if the sending party receives an error notice because the receiving party has changed its email address without formally notifying the sending party, the email notice is deemed effective if the sending party is using the last email address provided by the other party for the express purpose of receiving notices. In that case, the sending party will attempt to reach the receiving party by phone.
12.4 This Agreement is governed by the laws of the State of California, excluding conflicts of laws principles.
12.5 Any action arising under or related to this Agreement will be resolved by arbitration (and the parties hereby consent to personal jurisdiction) in the County of Los Angeles, California in accordance with the JAMS. The arbitration will be decided by a single arbitrator whose decision will be final and binding and may be enforced in any court of competent jurisdiction. The arbitration will be kept confidential except as required by law.
12.6 Multiple signature pages, signatures delivered via scanned-in PDF copy or fax, and electronic signatures will all constitute originals and together will constitute one and the same instrument.
12.7 Neither party will be liable for failure or delay in performing its obligations because of causes beyond its control, including without limitation acts of God, terrorism, war, riots, fire, earthquake, flood or degradation or failure of third party networks or communications infrastructure, provided that such failure or default could not reasonably have be circumvented or mitigated by the non-performing party through the use of alternate sources, backups, redundant servers, workaround plans or other means. If any such force majeure event substantially prevents, hinders or delays the performance by Company for more than ten (10) days, then Airpush, at its option, may terminate this Agreement or affected Services upon written notice to Company.