Thank you for your interest in oPub Media (“OPUB”) and the (i) tools, technology and services to track, analyze, engage and grow your audiences, (ii) access to OPUB’s real-time, data driven automation platform for advertising, data management and yield optimization, facilitating the integration of third party providers of online advertising and data on one or more of the PUBLISHER SITES, and (iii) aggregate and license data to third parties relating to the operation of such platform (collectively, the “Services”).
As used in these Terms of Service and on the Publisher Order Form, “YOU,” “YOUR, and “PUBLISHER” means the individual or entity (as defined in the Publisher Agreement using the Services (and/or any individual, agent, employee, representative, network, parent, subsidiary, affiliate, successor, related entities, assigns, or all other individuals or entities acting on your behalf, at your direction, under your control, or under the direction or control of the same individual or entity who controls you).
PUBLISHER operates one or more websites, mobile applications, blogs and/or other properties which are subject to approval by OPUB (collectively, ” PUBLISHER SITES”);
By using the OPUB Services, you agree to the following:
1. ACCESS AND USE OF SERVICES
1.1 Tags. OPUB requires placement of Tags on the PUBLISHER SITES. PUBLISHER shall use reasonable efforts to promptly place and enable the Tags. Once the Tags are placed and enabled by PUBLISHER, OPUB will use commercially reasonable efforts to make PUBLISHER SITES available to multiple Advertisers (companies buying media online) and Demand Sources (Ad Networks and Marketplaces aggregating multiple Advertisers) to maximize the per impression price on impressions displayed on PUBLISHER SITES, creating an auction for impressions on PUBLISHER SITES where the winning bidder will have their Ad Units shown. Ad Units on PUBLISHER SITES will be shown to winning bidders based on (but not limited to) the following criteria: (1) the highest price per Bid, (2) the second highest price per Bid, and (3) criteria set by OPUB (e.g., price floors). All delivery shall be subject to frequency capping, volume capping and targeting parameters established by OPUB and/or Buyers. Unused impressions that are not filled with Ads may be redirected to OPUB via a redirect link provided or approved by PUBLISHER, at OPUB’s reasonable discretion.
1.2 License Grant; Ownership. Subject to the terms and conditions of this Agreement, and in addition to the licenses provided hereunder to PUBLISHER, OPUB grants to PUBLISHER a limited, non-transferable, non-exclusive, non-sublicensable right and license to use the Tags and to display Ads on the PUBLISHER SITES, solely for the purpose of performance of this Agreement and solely during the Term. Except for the limited license rights expressly granted to PUBLISHER in this Agreement, and in addition to those ownership rights of OPUB set forth in the Agreement, as between the parties OPUB retains all right, title and interest in and to the Tags and the Ads made available to PUBLISHER via the Service.
1.3 Prohibited Activities. In addition to those prohibited activities set forth in the Agreement, PUBLISHER will not place the Tags on any PUBLISHER SITES that have not been previously approved in writing in advance by OPUB.
2.1 Representation. PUBLISHER hereby grants to OPUB the rights to sell all agreed upon ad units available on PUBLISHER SITES, including sponsorship opportunities, custom content, banners, text, links, video streams, pre-rolls, headline links, buttons, email newsletters, Mobile and other forms of advertisements and creative units PUBLISHER makes available on the PUBLISHER SITES (“Advertising”). In connection with the sale of Advertising and during the term of this Agreement, PUBLISHER hereby grants OPUB a non-exclusive, worldwide license to display, perform, and use PUBLISHER’S name, logo, and the domain names of its Website to identify PUBLISHER as a user of the OPUB Media and service, including on OPUB Media’s website and marketing materials, to include the PUBLISHER SITES on site-lists and marketing materials, and to use screenshots of the PUBLISHER SITES in connection with the sale of Advertising to third parties.
3. REPORTING, PAYMENTS, AND TAXES
3.1 Reporting. OPUB shall provide regular reporting to PUBLISHER to include daily and specific performance reporting. Within 5 business days of the end of each calendar month, OPUB shall provide full month reporting for the purposes of calculating future compensation and payments.
3.2 Compensation. OPUB will pay PUBLISHER within 10 business days from the start of each calendar month the PUBLISHER Revenue minus the OPUB Fee for payments received by OPUB. For purposes of this agreement, “PUBLISHER Revenue” means the sum of the market prices for impressions on the PUBLISHER sites. “OPUB Fee” means the total calculated fee as defined in 3.2.1 below and the Publisher Agreement Form. Payment is subject to OPUB’s prior receipt of valid payment and tax information. Notwithstanding the foregoing, if the amount accrued is less than $100 (USD) or the equivalent amount in the currency of the country in which PUBLISHER resides, payment will be deferred until such time that the cumulative balance owed to PUBLISHER exceeds $100 (USD) or the equivalent amount in the currency of the Agreement, OPUB will pay PUBLISHER by the 10th of the month of prior months collected revenue after its outstanding cumulative balance exceeds $100 (USD). OPUB will have no obligation to make payments for any amounts that OPUB, in its reasonable discretion, deems to have been generated from any Prohibited Activity (as defined below). OPUB has the right to adjust payments for non-payment from advertisers. “Prohibited Activity” means engaging in any of the following: (a) Objectionable Activity, defined as any content or activity that is (1) pornographic, illegal, fraudulent, false, deceptive, misleading, libelous, defamatory or threatening, (2) racist, hate speech or bullying, (3) adware, malware, spyware or any other malicious code or drive-by download applications and/or (4) “spam,” mail fraud, pyramid schemes, investment opportunities, or advice not permitted by law; (b) clicking on your own Ads or using any means (automated or manual) to inflate impressions and/or clicks artificially or otherwise generate activity not driven by bona fide human intent; (c) offering a user any inducement of any kind to generate clicks or impressions; (d) installing ad code on or within 404/error message pages, pop-over/pop-under windows, downloadable applications, software, chat windows or email; (e) obscuring an advertisement or any portion thereof with other content, advertising or navigational elements. The parties will use commercially reasonable efforts to collaborate on the identification and elimination of any Prohibited Activity.
3.2.a OPUB Fee Schedule. OPUB will calculate the total due to the publisher based on the fee schedule as defined on the Publisher Agreement Form. For the purpose of clarity, the OPUB Fee % is applied to the revenue within each tier where the revenue share % for the first tier is applied to the revenue within the first tier, and the revenue share percentage for the second tier is applied to the revenue generated within the second tier.
3.3 Ad Serving & Ad Serving Fees. As part of the general Services, OPUB will make available the ability for the PUBLISHER to sell campaigns to their clients, where the PUBLISHER will be responsible for collecting the creative and billing from the PUBLISHERS’s client, (“Direct Campaigns”). PUBLISHER will pay OPUB at the rate defined on the Publisher Agreement, (the “Ad Serving Fee”). The Ad Serving Fee will be deducted from any payments due to PUBLISHER from the Compensation calculated in section 3.2 above. In the event the Ad Serving Fees exceed the compensation, OPUB will send an invoice for the net amount due, which will be due within 30 days.
3.4.a Income, Sales and Use Taxes. Each Party shall be solely responsible for income taxes (Federal, state, local and otherwise) on any income derived from this Agreement. Charges for delivery of Services under this Agreement are exclusive of any applicable sales, use or similar type tax. Where sales, use or similar type taxes apply, such tax shall be itemized on the invoice delivered by the Party providing the services. The Party receiving such services agrees to pay any applicable sales, use or similar type taxes. OPUB shall pay appropriate sales, use or similar type taxes at the same time as the other charges on the invoice unless OPUB provides a valid exemption certificate to PUBLISHER.
3.4.b Tax Information. Any Party receiving payment under this Agreement hereby agrees to provide appropriate and accurate tax withholding information if requested by the other Party. The Parties acknowledge that failure to provide such information could subject payments under this Agreement to withholding as required by law (including, for example, backup withholding under the Internal Revenue Code of 1986, as amended).
4. TERM AND TERMINATION
4.1 Term. This Agreement shall be effective as of the Effective Date and shall continue in full force and effect for a period of twelve (12) months. The Agreement shall automatically renew for an additional period of twelve (12) months at the end of the then applicable term unless either Party provides the other Party with written notice to not renew at least thirty (30) days prior to the end of the Term.
4.2 Termination. Either Party may terminate this Agreement for convenience by providing the other party with thirty (30) Days written notice.
4.3 Survival. The provisions of Articles 5 and 6 of this Agreement shall survive the termination of this Agreement and remain in full force and effect thereafter.
5. INDEMNIFICATION AND LIMITATION OF LIABILITY
5.1 Indemnification by OPUB. OPUB shall indemnify and hold PUBLISHER harmless from any and all third party liabilities, claims, expenses, damages, losses, judgments, and costs, including reasonable attorneys’ fees and disbursements, which may be sustained or suffered by PUBLISHER resulting from (i) the use of OPUB’s platforms, the Services, software, tools or other Intellectual property on behalf of the OPUB as contemplated herein that infringes on the intellectual property rights of a third party; or (ii) OPUB’s breach of the Agreement.
5.2 Indemnification by PUBLISHER. PUBLISHER shall indemnify and hold OPUB harmless from any and all third party liabilities, claims, expenses, damages, losses, judgments, and costs, including reasonable attorneys’ fees and disbursements, which may be sustained or suffered by OPUB resulting from (i) the use of PUBLISHER’s platforms, software, tools or other Intellectual property on behalf of the PUBLISHER as contemplated herein that infringes on the intellectual property rights of a third party; or (ii) PUBLISHER’s breach of the Agreement.
5.3 LIMITATION OF 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. EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS EACH PARTY’S LIABILITY TO THE OTHER PARTY UNDER THIS AGREEMENT FOR ANY DIRECT DAMAGES OF ANY KIND WILL NOT EXCEED AN AMOUNT EQUAL TO THE FEES PAID UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE DATE OF THE CLAIM.
6. CONFIDENTIALITY & PRIVACY
6.1 Confidentiality. “Confidential Information” of a disclosing party hereunder (“Discloser”) means all of the Discloser’s non-public information, including without limitation, the terms of this Agreement. OPUB Data is the Confidential Information of OPUB. The PUBLISHER Data is the Confidential Information of PUBLISHER. Confidential Information of Discloser shall not be used by the other party hereto (“Recipient”) for any purpose other than performing Recipient’s obligations or exercising Recipient’s rights as contemplated hereunder, and Recipient will not otherwise at any time disclose the Confidential Information of Discloser to any third party without Discloser’s prior written consent. Recipient agrees that it shall treat all Confidential Information of Discloser with the same degree of care as it accords to its own Confidential Information, but in no event with less than reasonable care. Notwithstanding the foregoing, Recipient may disclose Confidential Information (i) to the extent required by law or (ii) to its employees, attorneys, accountants, banks and other financing sources and their advisors under an obligation of confidentiality.
7. REPRESENTATIONS, WARRANTIES, and DISCLAIMERS
7.1 Representations and Warranties by PUBLISHER. PUBLISHER represents and warrants that (i) it has full power and authority to enter into the Agreement; (ii) it is the owner of, or are legally authorized to act on behalf of the owner of, each Property; (iii) it is the technical and editorial decision maker in relation to each Property on which the Services are implemented and that it has control over the way in which the Services are implemented on each Property; (iv) OPUB has never previously terminated or otherwise disabled an OPUB account created by it due to its breach of the Agreement or due to invalid activity; (v) entering into or performing under the Agreement will not violate any agreement it has with a third party or any third-party rights; and (vi) all of the information provided by it to OPUB is correct and current.
7.2 Representations and Warranties by OPUB. OPUB represents and warrants that (i) it has full power and authority to enter into the Agreement; (ii) it authorized to provide the Services and the Services do not breach any third party rights; (iii) the status of its relationships with Google and similar parties are good; and (iv) entering into or performing under the Agreement will not violate any agreement OPUB has with a third party or any third-party rights.
7.3 DISCLAIMERS OF WARRANTIES. OTHER THAN AS EXPRESSLY SET OUT IN THE AGREEMENT, OPUB DOES NOT MAKE ANY PROMISES ABOUT THE SERVICES AND THE SERVICES ARE PROVIDED “AS IS” AND ON A “AS AVAILABLE” BASIS. FOR EXAMPLE, OPUB DOES NOT MAKE ANY COMMITMENTS ABOUT THE CONTENT WITHIN THE SERVICES, THE SPECIFIC FUNCTION OF THE SERVICES, OR THEIR PROFITABILITY, RELIABILITY, AVAILABILITY, OR ABILITY TO MEET YOUR NEEDS. WE PROVIDE EACH SERVICE “AS IS”.
TO THE EXTENT PERMITTED BY LAW, OPUB EXCLUDEs ALL WARRANTIES, EXPRESS, STATUTORY OR IMPLIED. OPUB EXPRESSLY DISCLAIMs THE WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
8. GENERAL PROVISIONS
8.1 Construction of Terms. If any provision of this Agreement is held unenforceable by a court of competent jurisdiction, that provision shall be severed and shall not affect the validity or enforceability of the remaining provisions.
8.2 Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws (and not the laws of conflicts) of the State of Delaware.
8.3 Complete Agreement. This Agreement constitutes the complete agreement and sets forth the entire understanding and agreement of the parties as to the subject matter of this Agreement and supersedes all prior discussions and understandings in respect to the subject of this Agreement, whether written or oral.
8.4 Dispute Resolution. If there is any dispute or controversy between the parties arising out of or relating to this Agreement, the parties agree that such dispute or controversy will be arbitrated in accordance with proceedings under American Arbitration Association rules, and such arbitration will be the exclusive dispute resolution method under this Agreement. The decision and award determined by such arbitration will be final and binding upon both parties. All costs and expenses, including reasonable attorney’s fees and expert’s fees, of all parties incurred in any dispute that is determined and/or settled by arbitration pursuant to this Agreement will be borne by the party determined to be liable in respect of such dispute; provided, however, that if complete liability is not assessed against only one party, the parties will share the total costs in proportion to their respective amounts of liability so determined. Except where clearly prevented by the area in dispute, both parties agree to continue performing their respective obligations under this Agreement until the dispute is resolved.
8.5 Modification. No modification, termination, or attempted waiver of this Agreement, or any provision thereof, shall be valid unless in writing signed by the party against whom the same is sought to be enforced. 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.
8.6 Waiver of Breach. The waiver by a party of a breach of any provision of this Agreement by the other party shall not operate or be construed as a waiver of any other or subsequent breach by the party in breach.
8.7 Successors and Assigns. This Agreement may not be assigned by either party without the prior written consent of the other party.
8.8 Independent Contractors; No Agency. The Parties are independent contractors and nothing contained in this Agreement shall be construed to (i) give either Party the power to direct and control the day‑to‑day activities of the other; (ii) create or constitute a partnership, joint venture, franchise, employment or agency relationship between the parties; or (iii) allow either Party to create or assume any obligation on behalf of the other Party for any purpose whatsoever.
8.9 Notice. All notices, requests, consents, and other communications under this Agreement shall be in writing (which includes paper, facsimile or email communication), and shall be delivered by hand, sent by reputable overnight courier service or electronic facsimile transmission (with proof of transmission) or mailed by first class certified or registered mail, return receipt requested, postage prepaid, to the Parties at the respective contact point set forth in this Agreement. Notices provided in accordance with this Section shall be deemed delivered (i) immediately if personally delivered or sent by email or electronic facsimile transmission, or (ii) if sent by overnight courier service, 24 hours after deposit with such courier service, or (iii) if sent by certified or registered mail, return receipt requested, 48 hours after deposit in the mail. Either Party may change the address to which notices, requests, demands, claims, or other communications hereunder are to be delivered by giving the other Party notice in the manner herein set forth.