Master services agreement

MASTER SERVICES AGREEMENT

This Master Services Agreement (“Agreement”), by and between Tremor Video, Inc., a Delaware corporation having a principal place of business at 53 West 23^rd Street, New York, New York 10010 (“Tremor”), and Crackle, Inc., a Delaware corporation having a principal place of business at 10202 W. Washington Blvd., Culver City, CA 90232 (“Publisher”), is effective as of July ___, 2013 (“Effective Date”).

For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Tremor and Publisher hereby agree as follows:

1. 
   SERVICE.
   

1. 
   Subject to the terms and conditions of this Agreement, Tremor shall purchase media placements (“Inventory”) on the Publisher Sites and provide Ad delivery services (“Services”). The Services shall be provided in connection with those certain Publisher Web sites or applications, including those Web sites and applications made available through a personal computer via Publisher’s Online Properties, mobile devices via Publisher’s Mobile Properties and connected TVs through Publisher’s Connected TV Properties, to which advertisements may be delivered, as set forth herein or as otherwise mutually agreed to by the parties (collectively, “Publisher Sites”). “Ad” means video advertisements provided to Tremor by advertisers (“Advertisers”) in a Tremor supported format, currently in use or hereafter developed. “Mobile Properties” means those Publisher mobile Web sites or mobile applications as set forth in Schedule 1 attached hereto and incorporated herein by this reference, to which Ads can be delivered. “Connected TV Properties” means those Publisher connected TV applications as set forth in Schedule 1 to which Ads can be delivered. “Online Properties” means those Publisher Web sites as set forth in Schedule 1 to which Ads can be delivered. References herein to “mobile” refer to Services provided in connection with video advertising that are delivered to Mobile Properties, while references to “online” refer to Services provided in connection with online video advertising that are delivered to the Online Properties.
   
2. 
   Publisher hereby grants to Tremor the right to (i) sell Ads on behalf of the Publisher Sites, (ii) display, transmit and reproduce content and materials contained on the Publisher Sites (“Publisher Content”), as contemplated herein, and (iii) access Publisher Sites and Web servers as necessary to perform the Services.
   

3. 
   Tremor hereby grants to Publisher a non-transferable, non-exclusive, right and license to use, perform, and display the (a) pixels, web beacons, JavaScript, ad tags, XML or other programming code provided by Tremor for the purpose of requesting the delivery of an Ad to the Publisher Sites (collectively, “Tags”), (b) ad management applications hosted on Tremor Web servers, including the related component and/or online video player (“Acudeo”) and (c) Ads. Publisher shall implement any Tags provided by Tremor to Publisher on the Publisher Sites, in a location and manner as reasonably directed by Tremor.
   

4. 
   Tremor may include Publisher as part of a bundle of arts and entertainment sites representing various audience packages or site categories in its sales efforts. Tremor will not provide advertisers with any guaranteed placement on the Publisher Sites, or in any particular placement within the Publisher Sites or in connection with any specific show or feature film displayed on the Publisher Sites, without Publisher’s prior consent during the sales process in each instance.
   

2. 
   RAMP-UP PERIOD; REMNANT ONLINE AND MOBILE EXCLUSIVITY.
   

a) Ramp-Up Period. [NOTE FROM TREMOR VIDEO. RESERVING COMMENT] From the Effective Date until forty-five (45) three (3) calendar months days thereafter, Tremor shall be Publisher’s third-party representative for the sale of remnant online and mobile video advertising on the Publisher’s Online and Mobile Properties in the Territory on a non-exclusive basis while Tremor “ramps up” the business and produces the targeted Ad sales that Publisher requires (the “Ramp Up Period”). If Tremor reaches the targeted Ad sales figures that Publisher requires during the Ramp Up Period, then at the conclusion of the Ramp Up Period, the exclusivity obligations in Section 2(b) shall apply. If Tremor fails to reach the target Ad sales figures that Publisher requires during the Ramp Up Period, then the relationship between the parties will remain non-exclusive.

b) Remnant Online and Mobile Exclusivity. As a condition precedent to the exclusivity obligations contained in this Section, Tremor must fulfill the obligations set forth in Section 2(a) above during the Ramp Up Period. If Tremor meets the obligations in Section 2(a), then during the Term (defined in Section 9 below), and solely with respect to Publisher’s excess inventory, Publisher agrees that Tremor shall be Publisher’s exclusive third-party representative for the sale of remnant online and mobile video advertising on the Publisher’s Online Properties and Mobile Properties in the Territory. For the avoidance of doubt, such exclusivity shall only apply vis-à-vis other third party Remnant Ad Providers, and shall not apply to display Ads (i.e., banner ads), nor the sale of Ads on Publisher’s Connected TV Properties. “Territory” means Publisher Sites visited by users with IP addresses originating in the U.S. “Remnant Ad Providers” NOTE FROM TREMOR VIDEO: RESERVING COMMENT means any third party remnant advertising provider that (i) is not considered a client or direct advertising sales partner of Publisher, (ii) where Publisher is solely providing preemptable inventory, and (iii) for tier 3 pricing (where tier 1 pricing would be considered direct advertising, and tier 2 would be considered sub-rate card pricing). For the avoidance of doubt, Publisher shall not sell, directly or indirectly through any employee or agent, any online or mobile video advertising inventory via any other third-party representative, network, exchange, or platform. Publisher agrees to promptly terminate all of its other third-party online and mobile advertising relationships and require that such third parties immediately remove Publisher’s name and logos from all site lists, partner slides, and other marketing materials. Publisher further agrees to remove the Publisher Sites from inclusion in any other third-party’s comScore or other reporting metrics. If Publisher becomes aware that other third parties are utilizing Publisher’s name and logo in violation of this Section 2, Publisher shall use its best efforts to end such unauthorized use.

3. 
   REPORTING AND MEASUREMENT.
   

1. 
   Any and all traffic or other data in connection with Tremor’s performance of the Services will be based solely upon reports generated by Tremor’s ad serving and application technologies (collectively, “Ad Serving Technology”).
   
2. 
   During the Term, for reporting purposes only, Tremor shall make available through the Ad Serving Technology interface the number of Ad impressions monetized by Tremor, Ad impressions received from Publisher, clicks, CPM Rates, gross revenue, and other data recorded in connection with delivery of Ads to the Publisher Sites.