the Publisher Content and Publisher Site(s) do not and will not contain any content which (a) is illegal, pornographic, hateful, profane, extremely violent or which encourages illegal behavior, or (b) infringes the rights of any person or entity;
except as disclosed to Tremor in writing, none of the Publisher Sites are child-directed sites as defined by 15 U.S.C. §§ 6501–6506, The Children’s Online Privacy Protection Act of 1998;
Publisher shall not, nor will it authorize or encourage any third party to, directly or indirectly interfere or attempt to interfere with the proper working of the Services; and
with respect to mobile applications, that each mobile application shall comply with all applicable legal, regulatory, and operator requirements, including without limitation, as to (a) the user’s agreement to download it, (b) the inclusion of advertising on it, and (c) the uninstallation and removal of the mobile application.
DATA.
“User Data” means non-personally identifiable data collected by Publisher or by Tremor from or about users of any of the Publisher Sites in connection with users’ interactions with Ads displayed on the Publisher Sites, including data relating to the display, delivery and performance of Ads on the Publisher Sites.
Ownership of User Data. As between Publisher and Tremor, Publisher owns all User Data. Except for the Permitted Uses described below, Tremor has no right, title or interest in the User Data.
Data Collection. In connection with Ads, Publisher will permit and enable the placement of Tremor’s (and its third party providers) ad beacons and cookies in connection with the Inventory on the Publisher Sites made available to Tremor, subject to the user opt-out provisions listed below and a user's ability to prevent the use of cookies through browser settings. The collection and sharing of User Data by the parties will comply with all applicable laws and regulations and with the parties’ respective privacy policies and terms of service. Tremor will not collect, and Publisher will not disclose to Tremor, personally identifiable information of users of the Publisher Sites. Tremor will collect, store, maintain and use User Data in accordance with security procedures and practices appropriate to the nature of the information and, in the event that Tremor actively collects Personal Data (as defined in Schedule C) pursuant to Schedule C. For clarity, Tremor does not collect Personal Data in its performance of the Services.
Permitted Uses. Tremor may use User Data solely (i) to perform its obligations under this Agreement, (ii) to improve, enhance and implement the sale, display and targeting of Ads on the Publisher Sites, and (iii) for analytics and general reporting purposes including, without limitation, the number of Ad impressions served to the Publisher Sites (collectively, the “Permitted Uses”) and for no other purposes. Tremor may also use aggregated User Data that does not identify Publisher or Publisher users solely for its internal business purposes, including, to improve, operate and optimize its Services. Publisher grants to Tremor a perpetual, non-exclusive, royalty-free license to use Publisher’s User Data that is collected pursuant to this Agreement for the purposes set forth in the immediately preceding sentence. Without limiting the foregoing, Tremor will not use any User Data to sell, display or target advertising on any properties served by Tremor other than the Publisher Sites. Notwithstanding any provision to the contrary set forth in this subsection d, Publisher acknowledges and agrees that Tremor will target online users for the purposes of online behavioral advertising, using data and information collected across multiple web sites that a user visits, including, but not limited to the Publisher Sites, in order to predict preferences and to show such user ads that are most likely to be of interest to them. For the avoidance of doubt, Tremor shall not target Publisher Site users on non-Publisher Sites in their capacity as Publisher Site users.
User Opt Out. Publisher will include links within the Publisher Sites to pages that, among other things, (a) inform users of the collection of User Data as contemplated by this Agreement, (b) explain the Permitted Uses, and (c) enable users to opt out of the collection of such User Data. The placement of such links and the text of such pages will be within Publisher’s sole discretion. Tremor will not collect, and Publisher may take measures to prevent the collection by Tremor of, User Data (or any other tracking data) from users of the Publisher Sites who opt out of the collection by Tremor of User Data.
Personal Data Privacy and Information Security. If applicable, Tremor shall comply with the data privacy and information security requirements set forth in the attached as Exhibit C, which is incorporated herein by reference.
EU Safe Harbor. If applicable, Tremor shall supply personal data to Publisher only in accordance with, and to the extent permitted by, applicable laws relating to privacy and data protection in the European Union and/or Switzerland. Any personal data supplied by Tremor to Publisher will be retained and used by Publisher only in accordance with the Sony Pictures Safe Harbor Privacy Policy, located at http://www.sonypictures.com/corp/eu_safe_harbor.html.
TERM AND TERMINATION.
Term. The initial term of this Agreement shall commence as of the Effective Date and shall continue for a period of one (1) year throughout December 31, 2014. Thereafter, this Agreement shall renew for successive terms of one (1) year upon the mutual written consent of both parties (any such successive terms shall be included in the Term).
Termination for Cause. At any time during the term, this Agreement shall terminate ten (10) days after a party’s receipt of notice that such party is in material breach of any of the terms or conditions set forth herein, unless such party cures such breach within said ten (10) day period. Any obligations of the parties that must survive in order to give effect to their meaning or that contemplate performance by a party following the termination or expiration of this Agreement shall survive any termination or expiration the Agreement. In addition to any other remedies available at law, if Tremor reasonably determines that Publisher is using the Services in a manner that may damage or cause injury to the Services or reflect unfavorably on the reputation of Tremor, upon notice to Publisher (which may be via email) Tremor may suspend Publisher’s access to and use of the Services, however Tremor shall work with Publisher in good faith to promptly remedy such suspension.
Termination for Insolvency. Either party may terminate this Agreement immediately by written notice to the other party if (a) the other party files a petition for bankruptcy or is adjudicated a bankrupt under any applicable bankruptcy law; (b) the other party makes an assignment for the benefit of its creditors or an arrangement for its creditors pursuant to any applicable bankruptcy law; (c) the other party discontinues its business; or (d) a receiver is appointed for the other party or its business.
Effects of Termination. Upon termination, (i) Publisher shall immediately cease all use of and remove all Tags, , and all other Tremor software and (ii) Tremor shall immediately cease all use of and remove all Publisher Trademarks, Publisher Content, and Publisher Sites . Upon any termination or expiration of this Agreement, each party, upon receipt of a written request from the other party hereto, will either deliver to the requesting party, or destroy, within thirty (30) days of receipt of such written request, all copies of any Confidential Information (whether in tangible or electronic form) of the party provided hereunder in its possession or under its control, and will furnish to the requesting party confirmation that such delivery or destruction has been fully effected.
PAYMENT.
Tremor shall pay Publisher thirty (30) sixty (60) days following the end of the applicable calendar month in which such fees were earned. All payments shall be made by Tremor based solely upon data derived from the Tremor Ad Serving Technology. In the event that there is a discrepancy of ten percent (10%) or more between the data derived from the Tremor Ad Serving Technology and data derived from Publisher’s technology, then the parties shall work together in good faith to reconcile such payment discrepancy. In the event that the parties do not resolve the payment discrepancy within a reasonable period of time, Publisher may immediately terminate this Agreement upon written notice to Tremor. Tremor will be solely responsible for all billing, collection and administrative matters in connection with its Advertisers and will undertake its obligations hereunder at Tremor’s sole expense. Tremor will be solely responsible, and Publisher will not be liable, for any make-goods, refunds or other liability or obligations due or owed by Tremor to its Advertisers because of the underperformance or under delivery of any Ads on the Publisher Sites.
In no event shall Tremor be liable to Publisher for (i) any earned balance less than one-hundred dollars ($100.00) per month; (ii) any payment based on any amounts that resulted from invalid clicks or impressions on Ads, as reasonably determined by Tremor; or (iii) any Ad impressions that are not Clean or (iv) any violation by Publisher of this Agreement.
Other than any income taxes incurred by Tremor as a result of the sale of Ads to its Advertisers, Publisher is solely liable for any and all taxes relating to the placement of the Ads on the Publisher Sites.
All payments must be made in U.S. dollars by wire transfer pursuant to the wire transfer instructions set forth below or such other instructions as may be specified by Publisher in writing. Publisher may require Tremor to pay interest at the rate of one and one half percent (1.5%) per month or the highest legally permissible rate, whichever is lower, on all amounts not paid when due until such amounts are paid in full. [NOTE FROM TREMOR VIDEO: THE PROVISIONS WE STRUCK ARE NOT APPLICABLE UNDER THE US RELATIONSHIP]
Wire Instructions: Beneficiary Bank: Bank of America
Bank ABA/Routing: 026009593
SWIFT code: BOFAUS3N
Beneficiary Name: Crackle, Inc.
Beneficiary Account: 1233050404
Audit. During the Term and for a period of one (1) year thereafter, Publisher will have the right to cause an audit of the relevant books and records of Tremor upon at least thirty (30) days written notice to Tremor. Such audits will be conducted by a nationally recognized independent public accountant, no more than once during any twelve (12) month period and during normal business hours. If an audit reveals any underpayment in the amounts properly payable to Publisher, Tremor promptly will pay the amount of any such underpayment. Publisher will pay the costs of each audit unless an audit reveals an underpayment of more than 10% for any period, in which event Tremor promptly will reimburse Publisher for its reasonable and documented expenses incurred in connection with such audit in addition to the amount of any such underpayment.
CONFIDENTIAL INFORMATION.
Except as otherwise set forth herein, Recipient (defined below) shall only disclose the Confidential Information (defined below) to Recipient’s employees, officers, directors and agents who have a need to know for the purpose of fulfilling Recipient’s obligations under this Agreement. Recipient shall use the Confidential Information solely to perform its obligations under this Agreement and not for any other purpose. Recipient shall employ all reasonable steps to protect the Confidential Information from unauthorized or inadvertent disclosure or use, including, without limitation, all steps that Recipient takes to protect Recipient’s own confidential information. Notwithstanding the foregoing, the Recipient may disclose Confidential Information of the Discloser (defined below) as required by law or government regulation, or as necessary to establish the rights of either party under this Agreement; provided, however, that both Discloser and Recipient will stipulate to and cooperate in obtaining any orders necessary to protect such information from public disclosure.
“Confidential Information” means the terms of this Agreement, and any information disclosed by one party (“Discloser”) to the other party (“Recipient”) that is designated as “Confidential”, “Proprietary” or some similar designation, or given the nature of the information or the circumstances surrounding its disclosure should reasonably be considered confidential or proprietary. Without limiting the generality of the foregoing, (i) all Tremor software, technology, technical specifications, access logins/passwords, pricing, documentation, pricing, ideas and materials relating to the Services shall be deemed Confidential Information of Tremor, and (ii) all Publisher software, technology, technical specifications, rate cards, content, programming, original slates, ideas, distribution strategy and materials relating to the business of Publisher shall be deemed Confidential Information of Publisher . Confidential Information shall not include information that (i) is or becomes generally available to the public through no fault of the Recipient; (ii) was in the Recipient’s possession, free of any obligation of confidence at the time of the Discloser’s communication; (iii) was communicated to the Recipient free of any obligation of confidence by a third party, which third party was free to make such disclosure without breach of any obligation; or (iv) is verifiably developed by the Recipient without the benefit of the information provided by the Discloser. For the avoidance of doubt, but subject to Section 15(a), the identification of Publisher as a customer of Tremor and user of the Services, including the description of any exclusive relationship between Tremor and Publisher with respect to the provision of Services, solely with respect to solicitation of advertisers, shall not be deemed Confidential Information of Publisher.
