This Master Service Agreement for DSP along with the Insertion Order executed between TVP and DSP (collectively, the “Agreement”) is effective as of the last of two dates of signing placed by the parties in the signature field below (“Effective Date”). In consideration of the foregoing, the parties hereby agree as follows:
TVP enables demand partners that are integrated with its seller platform (the “TVP SSP”) to purchase, on behalf of Buyers (as defined below), video advertising inventory (“Inventory”) that is made available by TVP seller partners through the TVP SSP.
“Services” shall refer to the provision of the TVP SSP and related services as further described herein.
DSP may provide agencies and advertisers that DSP is directly authorized to represent (each such agency or advertiser, a “Buyer”, and collectively, the “Buyers”) with access to the Services. DSP will advise its Buyers in writing that by receiving access to the Services they are agreeing to be bound by this Agreement. DSP shall be responsible for any breach of this Agreement by its Buyers as if such Buyers were party hereto.
2. INVENTORY & BIDS
2.1. DSP shall be solely responsible for selecting the Inventory on which it bids, and TVP shall have no liability with respect to any determination made by DSP to bid on any specific Inventory. TVP does not guarantee or warrant to DSP that Inventory will be available to DSP or its Buyers for ad campaigns, in whole or part, during the term of this Agreement.
2.2. TVP does not guarantee that the TVP SSP will accept any winning bids and such determination shall be at all times in the sole discretion of TVP and its seller partners. TVP shall not be required to disclose the Minimum Bid Price for any Inventory to DSP or its Buyers, which price may be modified by TVP or its seller partners at any time without notice. If the TVP SSP accepts a winning bid, DSP hereby consents on behalf of itself and any applicable Buyer to the placements of the applicable Buyer ad by TVP on the Inventory.
4.1. DSP shall have the opportunity to buy Inventory on the TVP SSP using the first price auction, second price auction, or fixed price auction types. For purposes of this Agreement:
“First Price Auction” means a form of auction where buyers submit bids, on a cost per thousand (CPM) basis, for the opportunity to buy specific Inventory and the buyer placing the highest bid wins the auction and sets the price at the amount of the bid; provided that such highest bid exceeds the minimum bid price (“Minimum Bid Price”) for such Inventory;
“Second Price Auction” means a form of auction where buyers submit bids, on a CPM basis, for the opportunity to buy specific Inventory and the second highest bid sets the price for such Inventory, but the buyer placing the highest bid wins the auction; provided that (i) the highest bid exceeds the Minimum Bid Price and (ii) in the event that the second highest bid is less than the Minimum Bid Price, then the price for the Inventory shall be set by the Minimum Bid Price. In the event that there is only one buyer bidding for particular Inventory, the buyer shall win the auction if it places a bid equal to or greater than the Minimum Bid Price for such Inventory; and
“Fixed Price Auction” means a form of auction where buyers submit bids, on a CPM basis, for the opportunity to buy specific Inventory at an agreed upon fixed price.
4.2. DSP shall pay TVP the Monthly Service Fee (defined below) within forty-five (45) days from the end of the applicable calendar month during which Services were provided by TVP, and without deduction for withholding taxes and without rights to any setoff. If TVP is required by applicable law to collect any sales, value added or similar taxes from DSP in connection with the provision of Services under this Agreement, then TVP shall be entitled to collect, and DSP agrees to pay, any such amounts in addition to the Monthly Service Fee. All fees shall be payable in US dollars. Late payments by DSP will be subject to late fees at the rate of one-and-one-half percent (1.5%) per month. Measurement of the number of ad impressions delivered by the Service on behalf of DSP and its Buyers shall be solely determined by TVP.
4.3. The “Monthly Service Fee” shall mean the aggregate of all Winning Bid Amounts for all winning bids that have been accepted by the TVP SSP and for which an ad impression has been delivered to Inventory in a given calendar month. Each “Winning Bid Amount” shall be determined as follows:
In the case of First Price Auctions, for bids equal to or higher than the Minimum Bid Price, the amount obtained by dividing (i) the highest bid, by (ii) one thousand (1000)
In the case of Second Price Auctions, for bids equal to or higher than the Minimum Bid Price:
where there is more than one buyer bidding for Inventory, the amount obtained by dividing (x) the greater of (A) the second highest bid or (B) the Minimum Bid Price plus one (1) cent ($0.01), by (y) one thousand (1000); or
where there is a single buyer bidding for Inventory, the amount obtained by dividing (x) the Minimum Bid Price plus one (1) cent, by (y) one thousand (1,000).
In the case of Fixed Price Auctions, the amount obtained by dividing (i) the agreed upon fixed-CPM bid price, by (ii) one thousand (1,000).
5. COVENANTS, REPRESENTATIONS AND WARRANTIES
5.1. Each party represents and warrants at all times that:
it has the right, power and authority to enter into this Agreement;
it is duly organized and validly existing and in good standing under the laws of the state of its incorporation or formation; and
the execution of this Agreement and the performance of its obligations and duties hereunder, do not and will not violate any other agreement to which it is a party or by which it is otherwise bound.
5.2. DSP represents and warrants at all times that:
it is authorized to represent each Buyer;
it owns and/or has the right to use all Buyer Material and 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;
it has all necessary rights, licenses, consents, waivers and permissions to allow TVP to operate the Services on behalf of DSP and its Buyers, and use any data provided to or collected by the Services;
it shall comply, and shall contractually require any of its Buyers (if applicable) to comply, with the Ad Content Guidelines specified in Schedule A;
any Content uploaded or assigned by DSP or by its Buyers to TVP SSP, does not contradict with, and does not promote any activity that is prohibited under, the Content Guidelines specified in Schedule A; and
the Buyer Material, does not and will not contain any content which (a) is deceptive, defamatory, obscene or illegal, or which encourages illegal behavior, or (b) infringes or misappropriates any third-party intellectual property, personal or other proprietary rights.
5.3. DSP shall:
be responsible for its and its Buyers activities in connection with its access and use of the Services, and the use or interpretation of any reports, documents, or other information or data generated or derived by the Services;
be responsible for the integrity of and ensure that all ads (including advertising content, materials and related technology), tags, URLs, data and campaign information (collectively, “Buyer Material”) provided to TVP or any seller of Inventory follow the criteria and specifications conveyed by TVP from time to time;
ensure that all information provided in connection with the Services is correct and complete, including any descriptions of the characteristics of the Buyer Material and related data provided to or requested by TVP;
ensure all ads shall be in a format supported by the TVP SSP, currently in use or hereafter developed;
comply with all written policies made available by TVP to DSP from time to time;
provide TVP the right to review and approve all ads prior to the delivery to the Inventory and to monitor the Inventory for ad quality; it being understood that TVP may reject or remove any ad at any time for any reason or no reason; and
work with TVP in good faith to integrate with DSP’s demand-side platform (“DSP Platform”) in accordance with any documentation provided by TVP, and its standard service methods.
5.4. DSP shall not:
directly or indirectly interfere or attempt to interfere with the proper working of the Services or the data contained therein; make any copies of the Services; disassemble, reverse engineer, or otherwise attempt to derive source code from the Services; modify, adapt or create derivative works based upon the Services; install or use the Services on any of its computer systems, servers, or networks, except as expressly permitted herein; or transfer, resell for profit, distribute, or otherwise grant any rights in the Services in any form to any third party;
use the Services in violation of any applicable laws, rules, or regulations, or in a manner that infringes the trademark, copyright, trade secret, privacy, publicity, or other rights of any third party in any way or for any purpose;
provide to the Services or use any form of adware, spyware or other nefarious computer programs or tools;
directly or indirectly pass personally identifiable information to TVP;
provide Buyer Material that (a) would reasonably be considered libelous, obscene, defamatory, hateful, blasphemous, objectionable or to encourage illegal behavior or (b) contains extreme violence, explicit language, substance abuse, gambling or distasteful content;
resell any Inventory on any exchange or in any manner not specifically authorized by TVP;
make any representation with respect to the source of the Inventory or reference any specific publishers, websites or applications in any sales or marketing materials or other communications; or
permit any person other than its or its Buyers’ employees to access or use the Services.
6. DISCLOSURE OF INFORMATION
6.1. TVP shall have the right to use and disclose all data collected pursuant to this Agreement including any data associated with an end user’s access to and/or interaction with any ad delivered to the Inventory:
to perform its obligations and enforce its rights under this Agreement,
to operate and improve its services, and
for analytics and general reporting or research purposes. DSP grants to TVP a worldwide, perpetual, transferable, non-exclusive, royalty-free license to use and disclose any such data for the purposes set forth herein.
6.2. As between DSP and TVP, TVP will own all information and data provided by TVP and/ or sellers of the Inventory through the Services, including, without limitation, information that identifies or allows identification of any seller, end user, Inventory, website or application, brand, content, or performance data (collectively, “TVP Data”).
6.3. DSP may use TVP Data solely:
to bid on Inventory in response to bid requests,
in connection with reports generated by DSP to each Buyer that has bid on Inventory in response to a bid request or to which TVP has sold Inventory through the Service, and
for internal campaign planning, scheduling, and forecasting.
6.4. To the extent TVP provides any Inventory URLs to DSP in connection with the Services, DSP may use such Inventory URLs solely for the purposes of targeting, performance optimization and reporting on the specific Inventory associated with such Inventory URL being sold through the Services; provided that in each case, the actual page URL provided by TVP to DSP under this Agreement shall not be disclosed or shared with any third party.
7.1. Each party may receive Confidential Information of the other party. “Confidential Information” means any information or material that is disclosed by TVP or DSP to the other party, and which is identified as “confidential” or “proprietary” or which, given the nature of the information or material, or the circumstances surrounding the disclosure, should reasonably be understood to be confidential or proprietary. Without limiting the generality of the foregoing, “Confidential Information” of TVP specifically includes, but is not limited to the Service features, know how, trade secrets, technology, programming, specifications, pricing, documentation, TVP Data, and source code. Each party agrees to hold the Confidential Information of the other party in strict confidence, not disclose such information to any third party, and not use the Confidential Information of the other party for any purpose other than as expressly permitted by this Agreement. DSP may provide its Buyers with access to any Service data solely to the extent that it relates specifically to the delivery and performance of such Buyer’s campaign; and provided that each such Buyer is informed of the confidential nature of such data and agrees to be bound by the terms of this Section 11 as though such Buyer was a party hereto.
7.2. Confidential Information does not include information that:
is or otherwise becomes generally available in the public domain through no breach of this Agreement by the receiving party,
was previously known, without obligation of confidentiality, by the receiving party, prior to any disclosure from the disclosing party,
is rightfully received by the receiving party from a third party without a duty of confidentiality, or
was verifiably developed by the receiving party without the benefit of the information provided by the disclosing party.
7.3. In the event a party is required by law or regulation to disclose any Confidential Information, the party seeking to make such disclosure will notify the other party promptly in writing upon receipt of such document requiring disclosure and cooperate with the other party so that such other party may seek to obtain an appropriate protective order. In any event, such disclosure shall be strictly limited to the Confidential Information that is required to be so disclosed by law or regulation.
7.4. Upon termination of this Agreement, DSP shall promptly return or destroy all Confidential Information provided to DSP by TVP, together with any copies thereof. Any Confidential Information that is not able to be returned or destroyed shall remain subject to the confidentiality obligations set forth in this Agreement. Each party acknowledges and agrees that the other party would be irreparably injured by a breach of its obligations set forth in this Section XI and that money damages are an inadequate remedy for an actual or threatened breach of this Section XI. Each party therefore agrees to the granting of specific performance of this Section XI and injunctive or other equitable relief in favor of the other party, as a remedy for any such breach, without proof of actual damages. Such remedy shall not be deemed to be the exclusive remedy for breach of this Section XI.
8. LICENSE AND INTELLECTUAL PROPERTY
8.1. TVP and its licensors retain all right, title and interest, including all copyright and intellectual property rights in and to the Services, and any technology, software, source code materials or data provided in connection therewith (as an independent work and as an underlying work serving as a basis for any improvements, modifications and derivative works) and all copies thereof.
8.2. All intellectual property and other proprietary rights developed pursuant to this Agreement or related to the Services including, without limitation, any categorizations, algorithms and analytics derived from or linked to user data collected pursuant to this Agreement, or other proprietary materials shall be the sole and exclusive property of TVP. All rights not specifically granted in this Agreement, including U.S. and International copyrights, are hereby reserved by TVP and its licensors.
8.3. DSP hereby grants to TVP a non-transferable, non-exclusive right and license to use DSP’s name and trademarks, and the names and trademarks of Buyers from which DSP represents it has obtained consent, in general marketing materials to identify DSP as a customer of the TVP SSP. The parties agree to issue a joint press release concerning this relationship within sixty (60) days from the Effective Date. The parties shall mutually agree to the content of such release, such approval to not be unreasonably withheld.
8.4. Subject to the terms and conditions of this Agreement, during the term, TVP hereby grants to DSP a limited, nonexclusive, revocable, and non-transferable license to access and use the TVP SSP for the purpose of enabling the purchase of Inventory on behalf of Buyers in the manner authorized herein.
9.1. DSP shall indemnify, defend and hold harmless TVP, and its officers, directors, employees and agents from and against any and all costs, liabilities, losses and expenses, including, without limitation, reasonable attorneys’ fees, resulting from any claim, suit, action or proceeding brought by any third party against TVP that arises out of or related to:
the Buyer Materials,
breach by DSP of any of DSP’s representations, warranties or obligations set forth in this Agreement,
the DSP Platform, and/or
DSP’s use or misuse of the Services.
9.2. If any action is brought against either party in respect to any allegation for which indemnification may be sought from the other party, the indemnified party will promptly notify the indemnifying party in writing of any such claim of which it becomes aware (provided that failure to provide prompt notice shall not relieve a party of its indemnification obligations except to the extent the indemnified party has been materially prejudiced by such failure) and will:
provide reasonable cooperation to the indemnifying party at the indemnifying party’s expense in connection with the defense or settlement of any such claim, and
be entitled to participate at its own expense in the defense of any such claim.
9.3. The indemnified party agrees that the indemnifying party will have sole and exclusive control over the defense and settlement of any such third-party claim. However, the indemnifying party will not enter into any settlement, except to the extent the indemnified party is fully and unconditionally released from any liability with respect the claim and such settlement does not impose any conditions or obligations on the indemnified party, without the prior written consent of the indemnified party, which consent shall not be unreasonably withheld, conditioned or delayed.
DSP ACKNOWLEDGES THAT THE SERVICES MAY CONTAIN BUGS AND ERRORS. DSP ACKNOWLEDGES AND AGREES THAT THE SERVICES ARE PROVIDED TO DSP “AS IS” AT DSP’S OPTION AND RISK. NEITHER TVP NOR ANY OF ITS THIRD-PARTY SERVICE PROVIDERS MAKES ANY EXPRESS, IMPLIED, OR STATUTORY WARRANTY OF ANY KIND INCLUDING, BUT NOT LIMITED TO, THE TIMELINESS OF THE DELIVERY OF ANY REPORTING DATA, OR ANY WARRANTY WITH REGARD TO PERFORMANCE, AVAILABILITY, ACCURACY, COMPLETENESS, MERCHANTABILITY, SATISFACTORY QUALITY, NONINFRINGEMENT OR FITNESS FOR ANY PARTICULAR PURPOSE.
11. LIMITATION OF LIABILITY
NO EVENT WILL TVP, ITS AFFILIATES OR THIRD-PARTY SERVICE PROVIDERS BE LIABLE TO DSP OR ANY OTHER PARTY FOR ANY LOST PROFITS, LOST DATA, OR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES EVEN IF TVP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT IN CONNECTION WITH EITHER PARTY’S OBLIGATIONS RELATING TO INDEMNIFICATION OF THIRD-PARTY CLAIMS, PROTECTION OF CONFIDENTIAL INFORMATION, OBLIGATIONS RELATING TO PROTECTION OF TVP INTELLECTUAL PROPERTY RIGHTS OR DSP’S PAYMENT OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY’S (INCLUDING, IN THE CASE OF TVP, ANY TVP AFFILIATES) LIABILITY EXCEED THE FEES PAID OR PAYABLE FOR THE SERVICES DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE UPON WHICH SUCH CLAIM AROSE.
12. TERM AND TERMINATION
12.1. The initial term of this Agreement shall commence as of the Effective Date and shall remain in effect for a one (1) year period, unless terminated in accordance with the provisions hereof. Unless either party provides written notice to the other party at least sixty (60) days prior to the end of the initial term or any renewal term of its intention not to renew this Agreement, this Agreement shall automatically renew for successive one (1) year terms.
12.2. Either party may terminate this Agreement for convenience by providing at least thirty (30) days written notice to the other party. At any time during the term of this Agreement, 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. In addition to any other remedies available at law, if TVP determines that DSP is using the Services in a manner that may damage or cause injury to the Services or reflect unfavorably on the reputation of TVP, TVP may terminate this Agreement with immediate effect upon notice to DSP or suspend DSP’s use of the Services. 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, including any of DSP’s payment obligations, shall survive any termination or expiration of this Agreement.
13.1. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, USA without regard to its rules of conflict of laws. Each of the Parties hereto hereby irrevocably and unconditionally consents to submit to the non-exclusive jurisdiction of the courts of the State of New York, USA for any litigation among the Parties hereto arising out of or relating to this Agreement.
13.2. Neither party may assign or transfer its rights under this Agreement without the prior written consent of the other party, provided that such consent is not required in the case of merger, acquisition or sale of all, or substantially all, of the assigning party’s assets, stock, business or business unit to which this Agreement relates.
13.3. The parties hereto are independent contractors and this Agreement does not create an agency, joint venture or partnership.
13.4. Any notice required to be delivered shall be deemed delivered: three (3) days after deposit in U.S. mail; one (1) business day if sent by overnight courier service; and immediately if sent electronically, delivered in person or by means of notice via the Services.
13.5. The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach.
13.6. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall be ineffective only to the minimum extent necessary without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provisions in any other jurisdiction.
13.7. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement if the delay or failure is due to circumstances beyond the reasonable control of the non-performing party.
13.8. This Master Service Agreement for DSP along with the Insertion Order and any schedules and/or amendment hereto, executed by authorized representatives of both parties is the entire agreement between TVP and DSP concerning the Services and related Confidential Information. It supersedes, and its terms govern, all prior proposals, agreements, or other communications between the parties, oral or written, regarding such subject matter. If there is any discrepancy between this Master Service Agreement for DSP and the Insertion Order, the Insertion Order shall prevail.
13.9. This Agreement may only be amended by a written document executed by both parties.
13.10. TVP and DSP confirm their mutual agreement to this Master Service Agreement for DSP as of the Effective Date.
AD CONTENT GUIDELINES
The following Ad content types not allowed under any circumstances:
that infringes any copyright, trade secret, or other intellectual property right of any third party;
sexually explicit or other adult material;
violence and bullying, hate speech, impersonation or deceptive behavior, hate Ad content;
contains any material that is unlawful or otherwise objectionable, including without limitation any material that encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable law;
contains any libelous, defamatory, indecent or obscene material, or otherwise violates any laws or regulations relating to the campaign (including but not limited to laws relating to Ad content distribution, encryption or export or any rights of any third party);
contains a virus, worm, Trojan horse, or other component harmful to any network or equipment;
violates the Children’s Online Privacy Protection Act of 1998 (COPPA);
illegal activities (including online gambling, drugs), and malicious products (including Ad content with p2p, adware, or spyware);
any Ad content engaging in, promoting online pirating, hacking, spamming an infecting as governed by United States Federal law; and
misleading Ad content, for example: an ad that is not associated to the Ad content that follows or directs to an unrelated landing page.
Ad content types not allowed under any circumstances:
pop ups (web site pop-ups, banner pop-ups, exit page pop-ups), Click here Ad content, incentivized clicks or pay to surf programs;
warez including creative promoting or leading to P2P, torrent sites, illegal music downloads, pirated software;
auto initiated sound (must be user initiated) or auto initiated creative expansion, fly-overs, etc;
ambiguous or unclear attributes;
exit messaging when leaving the page;
any Ad Content infringing on copyright or other intellectual property right of any third party;
any Ad Content that causes Auto – Redirect;
any Ad Content with aspect ratio and/or size that is not suitable for playing video; and
any Ad Content that is delivering hidden content/creative.
non-English Video Ad may not be served on English language sites; and
non-English Video Ad may run only to sites where the primary language is the same as the Video Ad.