The following terms and conditions constitute the binding legal agreement (this "Agreement") between B3 Connect, LLC dba "FanServ" ("FanServ") and you ("you" or the "Publisher"). You agree to use this site (the "Site"), the services described herein (the "Services") and any additional products and/or services offered by FanServ in the future only in accordance with this Agreement. FanServ reserves the right to make changes to the Site, the Services and the terms and conditions of this Agreement at any time. The latest Agreement will be posted on the Site. You should regularly check the Site for updates and/or changes. Your use of the Services following any such revisions constitutes your agreement to follow and be bound by the then current terms and conditions.
A. FanServ provides advertising content including images and text in connection with various advertising campaigns run by FanServ on behalf of advertising clients on Desktop Websites, Mobile Websites and/or Mobile Applications ("Properties"), which content is provided by publishers and/or developers in FanServ's proprietary network ("Campaigns").
2. Definitions. Unless otherwise defined herein or unless the context otherwise requires, capitalized terms used herein shall have the respective meanings set forth in Exhibit A hereto.
3. FanServ Services. During the term of this Agreement:
A. FanServ will use commercially reasonable efforts to sell the Inventory on the terms described herein and may engage third party advertising agencies or media companies to assist in its efforts to sell the Inventory.
B. FanServ may use the following primary types of sales strategies to fulfill its obligations under this Agreement:
(i) "Premium Sales" - FanServ may sell Inventory on the Properties on an individual basis where an Advertiser will purchase a specific banner, interstitial and/or video pre-roll. FanServ will charge Advertisers based on a CPM, CPA, or CPI basis for Premium Sales on all "Viewable Impressions."
(ii) "Network Sales" - FanServ may sell Inventory on the Properties on a pure network basis. FanServ will charge Advertisers on a CPM, CPA or CPI basis for Network Sales.
C. During the term of this Agreement, FanServ shall provide to Publisher standard ad monitoring services, including ad serving, management of ad traffic and other statistical information and campaign management services (the "Ad Server Services") via its ad server (the "Ad Server").
D. FanServ will assign, and keep available, one of its employees as a primary contact person to assist the Publisher. The assigned employee will be available seven days a week and as reasonably requested by Publisher.
E. The Ad Server in its entirety shall be available to Publisher to download and use twenty-four (24) hours each day, seven (7) days a week. The Ad Server shall be fully functioning and available to Users at least 99.9% of the time during any given month.
4. Obligations of Publisher. During the term of this Agreement:
A. Publisher agrees to make available for sale to FanServ Inventory available on the Properties (including banner, interstitial, and pre-roll video Inventory). This excludes any pre-allocated Inventory or Inventory sold by Publisher. For all advertising sales where Publisher sells Inventory after the date hereof ("Publisher Initiated Sales"), Publisher shall be responsible for entering Campaign specifics relating to such Inventory via the Ad Server.
C. Publisher will assign, and keep available, a primary contact person in connection with Publisher's performance of its obligations hereunder. Publisher will comply with the technical and implementation requirements provided by FanServ from time to time, which may include integration or distribution of the most current version of the software, implementation of APIs or SDKs, and complying with any protocols or instructions contained in any documentation provided by FanServ.
D. Publisher represents and warrants to FanServ that Publisher (i) owns and has the unrestricted right to communicate and publish the Properties and conduct business in the mobile landscape and on the World Wide Web at its Internet address and in connection therewith to use all service marks and trade names and in so doing is not acting in conflict with any patent, trademark, service mark, trade name, copyright, trade secret, license or other proprietary right with respect thereto, and (ii) Publisher has not received any communication from any third party that the Properties or the conduct of Publisher's business is in violation of any law, rule or regulation or in conflict with any patent, trademark, service mark, trade name, copyright, trade secret, license or other proprietary right with respect thereto.
E. Publisher agrees to accept Advertisements from all Advertisers, except those advertisers within the industries specified below, or those companies in conflict with any exclusive sponsorship or advertiser agreements that the Publisher lists below, which shall be automatically rejected. The Publisher shall have the right to amend the following list as needed with reasonable prior notice to FanServ.
Adult Advertising; Gambling; Casinos; Diet Companies; Diet Products; Diet Drugs; Tobacco; Lingerie; Pyramid Promotional Schemes.
F. The pricing with respect to the Advertisements on the Properties sold by FanServ shall be determined by FanServ (and upon Publisher's request, in consultation with Publisher); provided, that, FanServ may make Network Sales at standard network rates. FanServ reserves the right to establish its own rates on its sales of Advertisements based on market conditions.
G. For any Publisher Initiated Sales, Publisher shall, to the extent it is able using commercially reasonable efforts, be solely responsible for obtaining all necessary rights, licenses, consents, waivers and permissions from the Advertisers and others to allow FanServ to store and deliver the Advertisements and otherwise operate FanServ's ad monitoring technology on Publisher's behalf and on behalf of the Advertisers, and to use any data provided to or collected by using the ad monitor technology.
H. If Publisher is required by FanServ, in its sole discretion, to select a password as a condition of using the Site and Services, Publisher agrees to be responsible for maintaining the confidentiality of the password.
I. Publisher agrees to display the Advertisement exactly as it is made available to Publisher by FanServ in connection with the applicable campaign, and Publisher will not alter in any way any Advertisement delivered by FanServ.
5. Fees and Payment.
A. Service Sales.
(i) For purposes of this Agreement, "Service Sales" shall mean, in relation to the Properties, (i) Premium Sales, and (ii) Network Sales. No later than 30 days following the end of each calendar month, FanServ will pay Publisher the applicable Service Sales amounts actually collected by or on behalf of FanServ during the preceding calendar month, net of all applicable sales, use, privilege and excise and similar taxes, and all commissions, fees or charges applicable to such sales. The Service Sale amounts will be calculated based on terms presented in the insertion order and/or media plan entered into by FanServ with Advertisers.
(ii) FanServ shall use commercially reasonable efforts to collect Bad Debt. FanServ shall retain the right in its contracts with Advertisers to terminate the contract if the Advertiser does not pay in a timely manner. "Bad Debt" shall mean receivables for billed Advertisements in which collection has not been made and, in accordance with criteria set by FanServ, is deemed uncollectable. FanServ shall provide a written report to Publisher within 15 days of the end of each calendar month showing the amount payable to Publisher with respect to Services Sales, together with reports of any Bad Debt for the preceding calendar month. Publisher acknowledges and agrees that no payments will be issued by FanServ for any amount less than $100 USD and any unpaid earnings will rollover and accrue to the next pay period. FanServ will compile, calculate, and electronically deliver the data necessary to determine Publisher's billing and compensation ("Publisher Data"). FanServ's figures and calculations regarding the Publisher Data shall be final and binding; provided that FanServ reserves the right to correct such figures and calculations. If Publisher has any questions regarding the Publisher Data provided by FanServ, Publisher must submit such questions in writing within 14 days of receipt of the Publisher Data. FanServ will consider such questions in its discretion, but unless FanServ determines otherwise in writing, the Publisher Data will be deemed accurate and accepted as such by Publisher. You may only submit requests for adjustments to the Publisher Data where the alleged discrepancy is equal to or above $50 USD.
B. Ad Serving Fee.
(i) As consideration for the Ad Server Services for all Publisher Initiated Sales, Publisher hereby agrees to pay FanServ a monthly ad serving fee as determined by the Rate Sheet presented in Exhibit B. No later than 30 days following the receipt of the ad serving invoice, Publisher will pay FanServ the full and due amount of the invoice. Any amounts due that are not received by the date due will be subject to a late fee of the lesser of 1.5% per month or the maximum charge permitted by law.
6. Confidentiality. Both FanServ and the Publisher agree to keep confidential and shall not, without the prior written consent of the other, disclose in any manner whatsoever, in whole or in part, any of the terms of this Agreement or any information, whether written or oral, furnished by the other party, including all analyses, compilations, forecasts, plans, drawings, specifications, design, software, studies or other documents that contain or otherwise reflect such information or that are intended to remain confidential, except as necessary for either party to enforce its rights under this Agreement, or pursuant to a subpoena or any legal process, or as otherwise may be required by applicable law.
7. Term and Termination.
A. This Agreement shall be effective from the date FanServ commences performance of the Services and shall continue unless and until terminated by either party according to the terms of this Section 7. Either party may terminate this Agreement on 30 days written notice for any reason or no reason. This Section 7 and Sections 6 through 9 and 16 through 21 hereof shall survive the termination of this Agreement.
B. In the event this Agreement is terminated for any reason other than a material breach of this Agreement by FanServ and FanServ has entered into agreements with Advertisers ("Advertising Agreements") for the delivery of Advertisements on the Properties (the duration of which Advertising Agreements extend beyond the date of termination of this Agreement) and Publisher or a third party (other than FanServ) continues to deliver such Advertisements after the termination of this Agreement, then Publisher shall pay FanServ 25% of the revenues derived from the continued delivery of the Advertisements by Publisher or such third party as consideration for FanServ's solicitation and procurement of the Advertiser, payable to FanServ on a monthly basis until such Advertising Agreement terminates.
8. Warranty Disclaimer; Limitation of Liability.
Except as expressly set forth herein, neither party makes any warranty of any kind, whether express or implied, as to the subject matter of this Agreement, including any warranty of merchantability or fitness for a particular purpose. Neither party shall be liable for the actions or omissions of any Advertiser in connection with such Advertiser's utilizing any advertising space on the Properties, nor for the content of any such Advertiser's Banner or other advertising materials. In no event shall either party be liable for any indirect, incidental, consequential, special or exemplary damages arising out of or related to this Agreement. Should FanServ be obstructed, accelerated, incur loss of efficiency in productivity or be delayed in the commencement, prosecution, or completion of the services, without fault on its part, by the act, failure to act, direction, order, neglect, delay, or default of Publisher, Publisher's agents or employees or any other entity or person employed at Publisher's premises, or by changes in the services, or by reason of fire, lightning, earthquake, enemy action, act of God, or similar catastrophe, or by government restrictions in respect of materials or labor, or by a strike or lockout beyond FanServ's reasonable control, then FanServ shall be entitled to an extension of time for a period equivalent to the actual time lost by reason of any or all of the causes aforesaid. Publisher expressly agrees not to make, and hereby waives, any claim for damages, including those resulting from increased supervision, labor or material costs, on account of any delay, obstruction, or hindrance for any cause whatsoever, including, but not limited to, the aforesaid causes, and Publisher expressly agrees that its sole right and remedy therefore shall be an extension of time.
A. Publisher shall indemnify, defend and hold harmless FanServ, FanServ's subsidiaries and affiliates, and the respective partners, agents, officers, directors and employees of each of the foregoing, from and against any loss, cost, expense, claim, injury or damage (including, without limitation, reasonable attorneys' fees and expenses), whether incurred due to third party claims or otherwise, arising or resulting from or caused by (i) any grossly negligent act or omission or willful misconduct of Publisher; (ii) any material breach or default by Publisher in the performance of any of its obligations under this Agreement; or (iii) any material breach of any representation, warranty, covenant or agreement by Publisher.
B. Subject to the provisions of Section 8 above, FanServ shall indemnify, defend and hold harmless Publisher, Publisher's subsidiaries and affiliates, and the respective partners, agents, officers, directors and employees of each of the foregoing, from and against any loss, cost, expense, claim, injury or damage (including, without limitation, reasonable attorneys' fees and expenses), whether incurred due to third party claims or otherwise, arising or resulting from or caused by (i) any grossly negligent act or omission or willful misconduct of FanServ; (ii) any material breach or default by FanServ in the performance of any of its obligations under this Agreement; or (iii) any material breach of any representation, warranty, covenant or agreement by FanServ.
10. Press Releases; Marketing. Publisher and its affiliates will consult with FanServ and obtain its prior written consent before issuing any press or other release or otherwise making any other public statement with respect to the transactions contemplated hereby or any worthy advertising programs that are developed and sold by FanServ on behalf of the Properties. FanServ retains the right to refer to Publisher (including the reproduction of screen shots of pages of the Properties) in FanServ's web sites, press releases and marketing materials.
11. Assignment. Neither party hereto may assign this Agreement, or any of its rights and obligations hereunder, in whole or in part, without the consent of the other party, and any such attempted assignment shall be void; provided, however, that, upon written notice to the other party, a party hereto may (a) grant to a third party a security interest in this Agreement, or any of such party's rights and obligations hereunder, without the consent of the other party, or (b) assign this Agreement, or any of such party's rights and obligations hereunder, to a subsidiary or affiliated company of such party without the consent of the other party or (c) assign this Agreement, or any of such party's rights and obligations hereunder, to a third party in connection with the sale of all or substantially all of the assets, or more than 50% of its voting equity, of such party without the consent of the other party.
12. Notices. Any notices or other communications required or permitted to be given or delivered under this Agreement shall be in writing (unless otherwise specifically provided herein) and shall be sufficiently given if delivered personally, with a signed receipt therefore, or by reputable overnight delivery service, or mailed by prepaid certified mail, return receipt requested, or telefaxed with written confirmation, or sent by email, to Publisher at the address/email previously provided by Publisher, or to FanServ at FanServ, 16390 Bake Parkway, Suite 200, Irvine CA 92618, email firstname.lastname@example.org. Notices shall be deemed to have been given on the date delivered in person, by facsimile or by email, if so delivered, or on the third business day after mailing, if mailed. Either party, upon notice to the other party given in accordance with this Section 12 may modify its address for notices set forth in this Section 12.
13. Cumulative Remedies; No Waiver. The remedies of FanServ provided for in this Agreement are cumulative and shall be in addition to, and not in limitation of, the rights and remedies which may be available to FanServ at law or in equity. Notwithstanding any course of dealing or the failure of either party strictly to enforce any term, right or condition of this Agreement, no term, right or condition hereof shall be deemed waived and no breach excused, unless such waiver and consent shall be in writing and signed by the party claimed to have waived or consented. No consent by any party to, or waiver of, a breach by the other party shall constitute a consent to, waiver of, or excuse for any other different or subsequent breach.
14. Successors and Assigns. Subject to Section 11, this Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto and their respective legal representatives, and permitted successors and assigns.
15. Entire Agreement. This Agreement, together with the exhibits attached hereto, represents the entire agreement between FanServ and Publisher and supersedes all prior negotiations, representations or agreements, either written or oral.
16. Applicable Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to choice of law principles. Each party hereby submits to the exclusive jurisdiction of the United States District Court for the Central District of California and of any California state court sitting in the County of Orange County, California, for purposes of all legal proceedings arising out of or relating to this Agreement and the subject matter hereof. Each party irrevocably waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of the venue of any such proceeding brought in any such court and any claim that any such proceeding brought in such a court has been brought in an inconvenient forum.
17. Legal Fees. If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees, costs and expenses, in addition to any other relief to which such party may be entitled.
18. Severability. If any provision of this Agreement or the application thereof to any person or situation to any extent shall be held invalid or unenforceable, the remainder of this Agreement, and the application of such provision to persons or situations other than those to which it shall have been held invalid or unenforceable, shall not be affected thereby, but shall continue to be valid and enforceable to the fullest extent permitted by law.
20. Relationship. The relationship between FanServ and Publisher shall be that of independent contractor. Nothing in this Agreement shall be deemed to create or construed as creating a joint venture or partnership between the parties. Neither party is, by virtue of this Agreement, or otherwise, to be considered the agent or representative for the other party. Neither party shall have the right to bind the other contractually in any respect whatsoever.
21. Proprietary Rights. Publisher acknowledges that FanServ shall retain all proprietary rights in its ad serving technology (including all software, source codes, modifications, updates and enhancements thereof), the name "FanServ" or any derivatives thereof, and any other trademarks and logos which are owned or controlled by FanServ and made available to Publisher under this Agreement. FanServ acknowledges that Publisher shall retain all rights in and to the Publisher's trademarks and logos, and that FanServ does not have any right to use the Publisher's trademarks and logos except as expressly stated herein. Any rights to use the Publisher's trademarks and logos shall terminate at the time this Agreement terminates.
22. Use of Publisher's Trademarks. Publisher agrees that FanServ shall have the right to use the Publisher's trademarks and logos for the purpose of promoting FanServ and the FanServ Adserver, and FanServ agrees that Publisher shall have the right to use FanServ or B3 Connect name, trademarks and logo in all media to promote FanServ or B3 Connect, LLC.
Exhibit "A" DEFINITIONS
"Advertisement" means material or message in any format that promotes an Advertiser's brand or products or services.
"Advertiser" means a person or entity that provides Advertisements, whether directly or indirectly or through its advertising agency, to promote itself, its brands or the products or services it offers.
"CPM" means cost per thousand impressions.
"CPU" means cost per User.
"CPI" means cost per install.
"CPA" means cost per action.
"Impression" means an appearance by a banner, interstitial, etc. on any of the Properties resulting from a User accessing or visiting such Property.
"MAU" means Monthly Active User. An MAU is defined as a unique user who has opened, accessed or visited any of the Properties and performed an action in a calendar month (or 30-day window).
"SDK" means the FanServ software development kit that is a programming package that enables a programmer to embed the FanServ ad server on a specific platform. SDK includes APIs, programming tools, and documentation.
"User" shall mean any person or entity that accesses any of the Properties.
"Viewable Impression" ads to be considered viewable if 50% of their pixels are in view for a minimum of one second and for desktop video that standard is 50% for 2 seconds. In addition, the IAB standard stipulates that for larger desktop ad units, 30% of pixels in view for 1 second constitutes a Viewable ad. - See more at: http://www.iab.net/viewability#sthash.Ntp3E4IZ.dpuf
Exhibit "B" Ad Serving Rate Sheet on Publisher Initiated Sales (sample)
|Impressions delivered||Monthly fee (CPM)|
|0 – 1,000,000||$0.10|
|1,000,001 – 5,000,000||$0.075|
Company ‘A' sells advertisements for their sports app. They negotiate the CPM rate with the advertisers directly. Fanserv's ad server serves a total of 7,200,000 Publisher generated ad impressions for the month. Company ‘A' would pay Fanserv an ad serving fee of $510.00 for the Company ‘A' generated ad impressions.
|Impressions delivered||CPM||Fee Charged|
|0 – 1,000,000||$0.10||$100.00|
|1,000,001 – 5,000,000||$0.075||$300.00|
|$510.00 Monthly Ad Serving Fe|