Master services agreement

PROPRIETARY RIGHTS.

Publisher shall retain all right, title and interest in and to the Publisher Sites, Publisher Trademarks (as defined below), Publisher Content, and User Data (as defined below). Tremor shall retain all right, title, and interest in and to all of Tremor’s business and intellectual property, including, without limitation, its Ad Serving Technology, categorizations of the Publisher Content developed by Tremor related to the Ad Serving Technology, categorizations, algorithms and analytics derived by Tremor from user data collected pursuant to this Agreement, or other proprietary materials, documentation or works developed, created, delivered or used by Tremor, and any and all Services provided hereunder (including all software, source code, and any derivative works, modifications, improvements and enhancements thereof or thereto). All rights of a party not expressly granted under this Agreement are expressly reserved by such party.

5. 
   PUBLISHER & TREMOR OBLIGATIONS.
   

1. 
   Publisher agrees that it shall not:
   

1. 
   place Tags or Ads on any site, page or location which have not been approved in advance by Tremor;
   
2. 
   place any Ads below-the-fold in an auto-play state;
   
3. 
   place any Ads in an auto-play state with the sound off;
   
4. 
   use any form of adware, spyware or other nefarious computer programs or tools in the delivery of Ads;
   
5. 
   generate automated, fraudulent or otherwise invalid impressions or clicks on any of the Publisher Sites;
   
6. 
   place Ads on social networks or through any online advertising exchange;
   
7. 
   place Ads proximately to any content that is pornographic, illegal, or obscene, or any other such content Tremor deems not reasonably appropriate for its Advertisers, (any of the foregoing content shall be determined not to be “Clean”; Publisher acknowledges that Tremor may use technology to analyze video content in connection with determining whether such content is Clean);
   
8. 
   generate any online Ad call from within an iFrame; or
   
9. 
   (a) copy, modify, create derivative works based upon, disassemble, reverse engineer, decompile, or otherwise derive source code from Acudeo or (b) transfer, lease, distribute or otherwise grant any rights in Acudeo to any third party.
   

2. 
   Publisher agrees that it shall:
   

1. 
   provide a reasonable balanced delivery of Ad calls, in Publisher’s sole reasonable discretion;
   
2. 
   work with Tremor in good faith with respect to the technological integration and execution of serving Ads on the Publisher Sites; including without limitation, ensuring that metadata, page URL and player size are passed in the Ad call and that all Ad calls are from video players that are 400 x 300 pixels or greater in width;
   
3. 
   make available Inventory hereunder that is not artificial traffic generated by Publisher, such as pop-ups or, pop-unders or interstitials;
   
4. 
   clearly and conspicuously post notice on its Web site a privacy policy which identifies the nature and scope of the collection and use of data and information gathered by Publisher and its business partners, including for advertising purposes, and informs users of the Publisher Sites how to opt-out from such use of the data and information;
   
5. 
   notify Tremor if any cookie-based or other similar ad serving technologies used by Tremor on the Publisher Sites are being used to collect data on any child-directed site or the portion of any general audience site that is child-directed so as to enable Tremor to comply with terms of the Children's Online Privacy Protection Act;
   
6. 
   maintain monthly average performance levels consistent with similarly situated publishers within the Tremor network;
   
7. 
   be responsible for the integrity of all content, materials, data and information that is provided to Tremor by Publisher under this Agreement;
   
8. 
   promptly notify Tremor in writing of any unauthorized access or use of the Services of which it becomes aware; and
   

9. 
   implement Tremor’s proprietary SDK for the Mobile Properties and Connected TV Properties, as soon as practical following the Effective Date; it being understood that the fill rate requirement set forth in Section 6 below with respect to mobile and connected TV Ad impressions shall not apply during any month in which Tremor’s mobile and connected TV SDKs have not been implemented, and in any such month Tremor shall pay Publisher based on the actual number of rendered mobile and connected TV Clean Ad impressions delivered by Tremor.
   

1. 
   Tremor agrees that:
   

1. 
   IAB Standards. Ads will be made available for sale by Tremor in conformance with the applicable Internet Advertising Bureau (“IAB”) standards which may include, with respect to rich media Graphical Ads and video Graphical Ads, the IAB’s Rich Media Guidelines and Broadband Ad Creative Guidelines located at http://www.iab.net/standards/richmedia.asp and http://www.iab.net/standards/broadband/index.asp, the IAB’s Digital Video In-Stream Ad Format Guidelines and Best Practices, the IAB’s Display Advertising Creative Format Guidelines, The Digital Advertising Alliance’s Self-Regulatory Principles for Online Behavioral Advertising, http://www.aboutads.info/resource/download/seven-principles-07-01-09.pdf, or such other formats and standards as mutually agreed upon between the parties, but at a minimum standards that are representative of market standards for such Publishers Sites. Tremor will not sell Ads for display on the Publisher Sites other than in conformance with such standards and specifications without Publisher’s prior written consent.
   
2. 
   Sales Rules. Tremor will coordinate with Publisher staff or Publisher’s designees on a continual basis to manage inventory of Ads, type of inventory, insertion order issues, and the like. All sales made by Tremor will be made through written agreements and/or insertion orders containing terms and conditions that are consistent with the terms and conditions of the IAB Terms and Conditions for Internet Advertising for Media Buys One Year or Less (“Sales Contracts”). Tremor will not make any statements, representations or warranties, whether orally or in writing, that are false, misleading or otherwise inconsistent with the terms and conditions of this Agreement. Publisher reserves the right to review and approve any marketing or promotional materials utilized by Tremor in connection with the sale of Ads on the Publisher Sites. Tremor will be solely responsible for commissions paid to its employees or agents in connection with the sale of Ads displayed on the Publisher Sites. Publisher will have no liability for such sales commissions or any other costs incurred by Tremor or its employees or agents in connection with the sale of Ads. If Tremor provides incentives for its ad sales personnel to sell Ads, it will do so in a manner such that its sales personnel will be at least equally incentivized between selling Ads on the Publisher Sites and selling Ads on other publisher sites comprising the Tremor network of websites and applications.. Without limiting the foregoing, Tremor will pay sales commissions for sales of Ads on the Publisher Sites according to the same structure and level it pays its sales personnel for sales of Ads of any third-party.
   
3. 
   Ad Restrictions. Tremor will not sell Ads for display on the Publisher Sites in any of the advertising categories listed in Exhibit B or for any of the restricted Advertisers listed in Exhibit B, as such Exhibit B may be updated by Publisher from time to time by written notice to Tremor. Publisher reserves the right to reject or block the display of any advertisement (a) that Publisher reasonably determines violates this Section or Exhibit B, (b) if Publisher receives one or more regulatory inquiries with respect to such Ad or otherwise determines that such Ad could expose it to liability under applicable law or regulation or (c) that is inconsistent with the public image, goodwill or reputation of Publisher or its affiliates as determined by Publisher in good faith. Upon written notice of rejection by Publisher , as Publisher’s sole and exclusive remedy, Tremor will promptly remove such Ad from the Publisher Sites. Additionally, Tremor will provide Publisher with distinct Tags, if necessary, so as to ensure that end users are not receiving the same Ad upon viewing Publisher Content, but rather are receiving a new and distinct Ad upon each playback of Publisher Content.
   
4. 
   Technical Integration. Throughout the Term, Tremor will use commercially reasonable efforts to ensure, at its sole expense, that its systems and all Ads sold by it for display on the Publisher Sites interoperate with all ad serving systems used by Publisher or its third-party ad serving providers on the Publisher Sites as may be specified by Publisher or such providers during the Term.
   
5. 
   Insurance. Throughout the Term, Tremor will comply with the insurance obligations set forth in Exhibit D attached hereto and incorporated herein by this reference.
   
6. 
   Technical Support. Throughout the Term, Tremor will use its reasonable efforts to comply with the support schedule set forth in Exhibit E attached hereto and incorporated herein by this reference.
   

6. 
   FEES. Subject to the terms and conditions of this Agreement, commencing as of the Effective Date and continuing throughout the Term, Tremor agrees to pay Publisher fees at the Cost per Thousand (“CPM”) rates set forth below for the Ads:  
   

A. Monthly Online Properties Ad Impressions (Cost per Thousand) CPM Rate
0 - 6,000,000 $12.00

6,000,001 - 15,000,000 $10.00

15,000,001 and above $8.00

B. Monthly Mobile Properties Ad Impressions (Cost per Thousand) CPM Rate

(Excluding Windows Mobile Phones)
0 - 20,000,000 $13.00

20,000,001 - 25,000,000 $10.00

25,000,001 and above $7.00
(Solely with respect to Windows Mobile Phones)
0 - 500,000 $13.00

500,001 and above $10.00

C. Monthly Connected TV Properties Ad Impressions (Cost per Thousand) CPM Rate
0 - 6,000,000 $13.00

1. 
   With respect to the Online Properties and Connected TV Properties in the Territory, as applicable, in any given calendar month, fees shall be payable at the CPM rate specified above based on the greater of: (i) the actual number of rendered (as defined below) pre-roll Ad impressions delivered by Tremor to approved Publisher SitesOnline Properties and Connect TV Properties, as applicable, or (ii) the number of pre-roll Ad impressions calculated by multiplying (a) 95% by (b) the number of Qualified Ad Calls.
   

“Qualified Ad Call” means a Clean Ad call from a Tremor approved Publisher Site in the Territory that satisfies the requirements set forth in Section 5 of this Agreement and which has the ability to be rendered. “Rendered” refers to each individual Ad call to Tremor servers which results in the return of an Ad to the Publisher video player located on the Publisher Site recorded at the point in time during which the first frame of the Ad is displayed, post buffering. For example, with a Publisher who has a five (5) second delay before which the video Ad can appear, then the actual Ad call would occur at second zero (0) but the actual Ad slot would not be available to be rendered until second five (5). [Jason is ok with (a)]

2. 
   With respect to Mobile Properties in the Territory, in any given calendar month, fees shall be payable at the CPM rate specified above based on the greater of: (i) the actual number of rendered Ad impressions delivered by Tremor to the Mobile Properties, or (ii) the number of Ad impressions calculated by multiplying (a) 95% by (b) the Addressable Inventory (defined below). [punt on this – discuss too much hair cut. Need 100% fill rate].
   

“Addressable Inventory” means the total number of mobile Clean US pre-roll Ad calls multiplied by the Use Rate for such month. “Use Rate” means the total number of rendered mobile Ad impressions in a given calendar month divided by the number of Ads returned by Tremor in such month. By way of example, if Publisher makes 2,000,000 mobile Clean US pre-roll Ad calls in a given month, Tremor returns 1,700,000 Ads to Publisher and Publisher has 1,200,000 Ad impressions rendered, then Publisher’s Use Rate for such month shall be equal to 1,200,000/1,700,000, or 70.59%; the Addressable Inventory for such month shall be equal to 70.59% x 2,000,000, or 1,411,765; and the fill guarantee for such month shall be equal to 95% x 1,411,765, or 1,341,177.

Notwithstanding anything to the contrary contained herein, Tremor shall only guarantee to deliver (A) in any single day up to (i) 1,000,000 online Ad impressions; (ii) 2,000,000 mobile Ad impressions; and (iii) 250,000 connected TV Ad impressions; and (B) in any month up to (i) 40,000,000 mobile Ad impressions; and (ii) 6,000,000 connected TV Ad impressions.

3. 
   If Publisher restricts Tremor from delivering certain advertising campaigns to Publisher Sites and such restrictions impact Tremor’s ability to meet its fill rate requirements (i.e., 95% of Qualified Ad Calls or Addressable Inventory, as applicable), the parties shall work together in good faith to reduce the fill rate requirement set forth herein on a proportionate basis to the impact on Tremor’s ability to reach the fill rate requirement for so long as such restrictions exist. Notwithstanding the foregoing, Tremor shall comply with the Publisher Advertising Restrictions set forth in Exhibit B to this Agreement. In the event an Ad impression is delivered in violation of such restrictions, Publisher shall notify Tremor in writing, and as Publisher’s sole and exclusive remedy, Tremor shall promptly remove the Ad. [NOTE FROM TREMOR VIDEO: THIS PROCEDURE AND LIMITED LIABILITY IS STANDARD IAB PROTOCOL]
   

4. 
   If Publisher materially changes its balance of monthly delivery of Ad calls or its ratio of Ad calls delivered to video content from the terms set forth in Section 5 (Fees) as the Effective Date, the parties shall work together in good faith to reduce the fill rate requirement and/or rates set forth herein.
   

5. 
   Tremor may not barter or otherwise exchange Ads on the Publisher Sites for non-monetary consideration.
   

7. 
   REPRESENTATIONS AND WARRANTIES.
   

1. 
   Each party warrants and represents at all times that (i) it has the right, power and authority to enter into this Agreement, (ii) it is duly organized and validly existing and in good standing under the laws of the state of its incorporation or formation, and (iii) the execution of this Agreement by such party, and the performance by such party of its obligations and duties hereunder, do not and will not violate any agreement to which such party is a party or by which it is otherwise bound.
   
2. 
   Additional Representations and Warranties of Tremor. Tremor represents and warrants that: any Ads or other content displayed on the Publisher Sites as contemplated in this Agreement do not and will not (a) constitute a libel, slander, or defamation against any person or entity; (b) in any way violate, conflict with, or infringe upon any right of any kind or nature of any person or entity, including without limitation any copyrights, trademark rights, United States patent rights, trade secret rights, moral rights, rights of publicity or privacy, or other rights; (c) contain or promote activities generally understood as Internet abuse, including, without limitation, the sending of unsolicited bulk email, spam or sms spam, to the knowledge of Tremor, the use of spyware or other malware, or to the knowledge of Tremor the use of viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming; (d) contain or promote points, lottery or rewards based ads, or sites that use the ads to generate revenue for users to win points, earn rewards or other incentives, or that otherwise deceptively encourage users to click on the ads; or (e) otherwise cause injury to, or give rise to any claim by, any third party.
   
3. 
   Publisher represents and warrants at all times that, to the best of its knowledge:
   

1. 
   Publisher owns and/or has the right to use all Publisher Content, Publisher Site(s) and any Publisher intellectual property used in connection with this Agreement, and each of the foregoing do not and will not violate any laws, rules, regulations, or third-party rights;
   
2.