Advertiser: Terms of Service

 

The following terms and conditions (“Terms”) govern and apply to any insertion order or service agreement that references these Terms or to which these Terms are attached (the “IO”). These Terms and the applicable IO (together, the “Agreement”) are a legal contract between Gravity.com, Inc. (“Gravity”) and the advertiser identified in the IO together with any brokers or agents acting on that advertiser’s behalf (together, “Advertiser”). These Terms govern Advertiser’s participation in Gravity’s advertising program and shall supersede any conflicting terms in the IO. BY USING THE SERVICE, YOU ARE STATING THAT YOU AGREE TO BE BOUND BY ALL OF THESE TERMS.

  1. Services
    1. Gravity’s advertising program works in conjunction with Gravity’s personalization platform for online content publishers (the “Platform”), and generally involves: (a) Gravity’s use of the Platform to present consumers with links (displayed on participating publishers’ websites and apps) directing consumers to advertiser-promoted content; and (b) advertisers’ paying Gravity on a per-click basis for traffic through those links to the advertisers’ promoted content.
    2. As used in these Terms: (a) “Sponsored Story” means an article or other piece of content that the Platform presents to consumers (typically in the form of a descriptive link) in an area reserved for links to advertiser-promoted content; (b) “Paid Index” means the index of advertiser-promoted content from which Gravity allows the Platform to select Sponsored Stories; and (c) “Content” means the particular content specified or made available by or for Advertiser via the RSS/XML feed(s) or URL(s) identified in the IO.
    3. Subject to these Terms, Gravity shall submit all Content into Gravity’s content review queue and, if approved in Gravity’s sole and absolute discretion, into Gravity’s Paid Index.
    4. When Content in the Paid Index meets the Platform’s applicable relevance criteria, a link to that Content shall appear as a Sponsored Story on the website or app of publishers selected by Gravity who have agreed to participate in Gravity’s personalization service and who have not blocked Content from displaying.
    5. Gravity shall provide reports allowing Advertiser to see the number of impressions served and clicks to the Content generated.
  2. Content
    1. Content selected by Advertiser shall be subject to Gravity’s approval for inclusion in the Paid Index, which approval may be granted, withheld, or revoked at any time in Gravity’s sole and absolute discretion. Advertiser acknowledges that Gravity is not responsible for the Content and that the Content may change during the course of a IO due to revisions by the Content’s author, comments from readers, or otherwise. Gravity has no obligation to monitor the Content. Advertiser further acknowledges that, in the event of any objection from any person regarding Content, Gravity’s practice is to remove that Content from the Paid Index.
    2. Advertiser acknowledges that the links to the Content as displayed by Gravity are generated automatically by the Platform, based on the metadata and other material included in or associated with the Content, and that Gravity is not liable for errors or omissions in those links or for any other harm alleged to by caused by those links or their placement or appearance.
    3. Advertiser shall not, directly or indirectly, provide Content that:
      1. is obscene, defamatory, libelous, slanderous, pornographic, violent, profane, indecent, hateful, discriminatory or unlawful;
      2. infringes, misappropriates, or violates any person’s copyrights, trademarks, trade secrets, publicity rights, privacy rights, or other rights of any kind;
      3. attempts to mislead or deceive viewers of the Content or knowingly contains factual inaccuracies presented as fact;
      4. facilitates or promotes the sale of weapons, tobacco or alcohol;
      5. facilitates or promotes any type of illegal activity, including without limitation pyramid schemes, gambling, the sale or use of illicit drugs, or discrimination or harassment of any individual or group;
      6. promotes services competitive to those of Gravity or that may otherwise damage the goodwill and reputation of Gravity, as determined by Gravity in its sole and absolute discretion; or
      7. contains spyware, malware, adware, viruses, worms, Trojan horses, time bombs or similar contaminating or destructive feature or other code designed to cause damage to or interruption of computer systems, or any code or software or feature that enables access to personally identifiable information regarding an internet user without that user’s express consent, or accesses information from the internet user’s computer, or that enables third parties to alter the settings or displays on the internet user’s computer, and expressly including without limitation spyware, malware or adware.
    4. Advertiser grants to Gravity a non-exclusive, worldwide, royalty-free license to use Advertiser’s trademarks and to use, reproduce, distribute, publicly display, publicly perform, and modify the Content, solely in connection with fulfilling any IO, including use of Advertiser’s trademarks to identify Advertiser as the provider of its Sponsored Stories. Gravity will make no other use of the Content or Advertiser’s trademarks without Advertiser’s express approval. Nothing in this Agreement shall diminish Advertiser’s ownership of its Content or trademarks.
    5. Advertiser represents and warrants that if the Content selected for use in an IO was written by or under the direction of Advertiser, or paid for by Advertiser, that fact shall be clearly disclosed in the Content, or otherwise made apparent to the end user. Advertiser is solely responsible for determining the propriety and legality of its promotion of the Content.
  3. Payments
    1. Advertiser shall pay to Gravity fees at the rate set forth in the IO based on the number of clicks delivered by Gravity to the Content. Advertiser will be invoiced for the number of clicks delivered during each calendar month when dollar thresholds established by Gravity have been attained and/or at the end of each calendar month (“Billing Date”). Advertiser will pay within 30 days of the Billing Date, via wire transfer, credit card or check. If the IO states a maximum budget for any campaign or time period, Gravity will not (in relation to that IO and campaign or time period) charge Advertiser any amounts beyond the agreed-to maximum unless Advertiser expressly authorizes the overage.
    2. Advertiser will have access to reports, which will provide Advertiser with information about the amount of traffic being delivered per day to each campaign submitted. There is no guarantee on the number of impressions, clicks, or other performance metrics for this program, but Advertiser will only be charged for clicks delivered (up to the maximum budget designated by Advertiser in the IO). Gravity shall not use any automated or other means to fraudulently or artificially increase the number of clicks delivered, and Gravity will cooperate in good faith with Advertiser to resolve any reasonable concerns over the validity of clicks for which Advertiser is charged.
    3. Advertiser will be liable to Gravity for an interest rate of 1.5% per month or the highest legal rate permitted by applicable law (whichever is less) for all monies owed from the date of indebtedness until paid. Gravity also reserves the right to suspend or terminate Advertiser’s use of Gravity’s service until Advertiser’s account becomes current, and to charge Advertiser for all costs of collection, including collection agency and attorney’s fees and court costs. Nothing in these Terms or an IO may obligate Gravity to extend credit to any party.
  4. IO
    1. For each IO, Advertiser must specify Content, a timeframe, a bid (price per click or auto-bid), and a maximum budget.
    2. Advertiser will continue to be charged for clicks delivered, up to the provided budget or campaign budget limit specified in the IO, until Advertiser cancels their IO. Upon cancellation, Gravity will remove Advertiser Content from the Paid Index and will not bill for clicks delivered more than twenty four (24) hours after cancellation.
    3. Advertiser may cancel an IO or pause the campaign associated with the IO at any time (allowing up to twenty-four (24) hours for the change to take effect) by notifying their account representative.
  5. Confidentiality/Data
    1. Each party agrees that with respect to any Confidential Information (as defined below) that is disclosed by one party to the other in connection with this Agreement, the party receiving such Confidential Information shall not disclose such Confidential Information to any third party, or use it for any purpose, except in connection its rights and obligations under this Agreement. “Confidential Information” means all information concerning a party or any of its subsidiaries or affiliates that is not generally known to the public, which information is marked confidential or proprietary, or which under the circumstances ought reasonably to be treated as confidential or proprietary, and includes, without limitation, the IO terms, which shall be considered Gravity’s Confidential Information. Notwithstanding the foregoing, Confidential Information does not include information that:
      1. is, as of the time of disclosure, or thereafter becomes, part of the public domain through a source other than the receiving party;
      2. was lawfully in the possession of the receiving party as of the time of disclosure;
      3. is independently developed by the receiving party without reference to the Confidential Information; or
      4. is subsequently obtained from a third party not subject to an obligation of confidentiality with respect to the information disclosed.
    2. Confidential Information shall be kept in the strictest confidence and shall be protected by all reasonable and necessary security measures. Confidential Information shall not be released by the receiving party to anyone except an employee or agent, who has a need to know same, and who is bound by confidentiality obligations at least as restrictive as these contained herein. Neither party will use any portion of Confidential Information provided by the other party hereunder for any purpose other than as expressly set forth under a IO and/or this Agreement. Notwithstanding the foregoing, either party may disclose Confidential Information strictly necessary to comply with the demands of any court order, law or governmental agency.
    3. Each party shall be the owner of any campaign data or consumer data that it collects by virtue of this Agreement, and such information shall be considered the collecting party’s Confidential Information. Each party represents and warrants that its collection and use of any consumer data shall be in accordance with its posted privacy policy and all applicable laws.
  6. Representations and Warranties; Disclaimers
    1. Advertiser represents and warrants to Gravity that it has all necessary rights and authority to enter into this Agreement and to grant the rights and licenses hereunder, and the execution of this Agreement and any IO, and the performance of its obligations and duties thereunder, do not and will not violate any agreement to which Advertiser is a party or by which it is otherwise bound.
    2. Advertiser further represents and warrants that its promotion of the Content does not violate any applicable laws, rules or regulations.
    3. If Advertiser is paying by credit card, Advertiser represents and warrants that Advertiser is either the cardholder or authorized by the cardholder to use the card.
    4. Inclusion in the Paid Index means that Content is eligible to be made available to users as Sponsored Stories. Advertiser acknowledges and agrees that the Content will appear as a Sponsored Story only when it is in the Paid Index and the Platform determines that the Content is relevant. Gravity does not guarantee traffic to Content or on which sites or apps Content will be displayed, but Advertiser will only be billed for clicks delivered.
    5. GRAVITY MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE, ABOUT ITS SERVICES OR PLATFORM OR THE PERFORMANCE OR SUCCESS OF ANY CAMPAIGN OR IO, OR THAT THE OPERATION OF GRAVITY’S SERVICE OR PLATFORM WILL BE UNINTERRUPTED, SECURE OR ERROR FREE.
  7. Indemnification
    1. Gravity shall defend, indemnify and hold harmless Advertiser against any third-party claims to the extent they allege that Gravity’s Platform, as operated by Gravity in fulfillment of Advertiser’s IO, infringes such third party’s intellectual property rights; provided, however, that such obligation shall not extend to any claim that arises from: (i) the particular Content with which the Platform is used; or (ii) Advertiser’s use of Gravity’s advertising program in combination with any other program, product, service, technology, or other element not furnished by Gravity.
    2. Advertiser shall defend, indemnify and hold harmless Gravity and its agents, affiliates, subsidiaries, directors, officers, employees and contractors against any and all claims resulting from the breach or alleged breach of Advertiser’s duties, obligations and representations under this Agreement including, without limitation, for any breach or alleged breach of Section 2.c. or any claim made by any person resulting from their exposure to Content submitted by Advertiser.
    3. In connection with any claim for which indemnity is sought under these Terms,
      1. the indemnified party shall provide prompt written notice to the indemnifying party of any such claim (provided that the failure to provide such prompt notice shall not relieve the indemnifying party of its indemnification obligations herein, except to the extent it has been damaged thereby);
      2. the indemnifying party shall have sole control of the defense or settlement of the claim (provided that the indemnifying party may not enter into any settlement that may adversely affects the rights of obligations of the indemnified party without the indemnified party’s prior written consent);
      3. at the indemnifying party’s request and expense, the indemnified party shall cooperate in the investigation and defense of such claim; and
      4. the indemnified party shall have the right to participate in its defense with counsel of its own choosing at the indemnified party’s expense.
  8. Limitation of Liability
    1. EXCEPT WITH RESPECT TO CLAIMS ARISING FROM A PARTY’S INDEMNITY OBLIGATIONS, WILLFUL MISCONDUCT OR A BREACH OF THE CONFIDENTIALITY PROVISION IN THIS AGREEMENT: (i) THE MAXIMUM AGGREGATE LIABILITY OF EITHER PARTY AND ITS DIRECTORS, OFFICERS, EMPLOYEES, VENDORS OR AGENTS FOR ANY ACTION REGARDLESS OF THE FORM OF THE ACTION, WHETHER IN TORT OR CONTRACT, ARISING UNDER OR RELATED IN ANY WAY TO THIS AGREEMENT OR ITS IMPLEMENTATION SHALL BE LIMITED TO THE AMOUNT OF FEES PAYABLE BY ADVERTISER UNDER THIS AGREEMENT; and (ii) IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR CONSEQUENTIAL, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES OR OTHER DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, LOST DATA, LOST REVENUES OR LOST PROFITS, ARISING OUT OF OR RELATED IN ANY WAY TO THIS AGREEMENT OR ITS IMPLEMENTATION, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
  9. Publicity
    1. Advertiser shall not issue a press release or general public announcement regarding use of the Gravity service without the prior written consent of Gravity, which consent may be granted or withheld in Gravity’s sole and absolute discretion.
    2. Gravity shall have the right to include Advertiser’s name on Gravity’s client list and in other marketing materials.
  10. Term and Termination
    1. The term of this Agreement commences on the date of the last signature set forth on the IO (or, where applicable, the date on which Advertiser submits the IO using Gravity’s online form) and will remain in full force and effect until the IO is fulfilled or cancelled or until this Agreement is terminated as provided below.
    2. A party may terminate this Agreement in the event of a material breach by the other party, if the breach remains uncured after a period of 15 days from the date of notice of such breach.
    3. Sections 5, 7, 8, 9 and 11, together with any outstanding payment obligations (and the terms of Section 3 as they apply to such obligations), shall survive the termination or expiration of this Agreement.
  11. Miscellaneous
    1. Neither Party may assign this Agreement, in whole or in part, by operation of law or otherwise, without the prior written consent of the other; provided, however that either party may assign its rights or delegate its duties under this Agreement, in whole or in part, without the other’s consent, in connection with a merger, reorganization or sale of all, or substantially all, of the assignor’s assets, provided that the successor entity shall have sufficient resources to fully perform this Agreement and shall assume the obligation to fully perform this Agreement.
    2. This Agreement shall be construed in accordance with the laws of the State of California applicable to contracts entered into and wholly to be performed therein, without regard to that body of law relating to conflict of laws. Each party hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the State of California and of the United States of America, in each case located in San Francisco or Santa Clara County, for any claim arising out of or relating to this Agreement (and agrees not to commence any claim relating thereto except in such courts). The prevailing party in any action arising out of or to enforce this Agreement shall be entitled to recover its reasonable attorney’s fees and costs.
    3. All notices under this Agreement will be in writing and will be delivered by personal service, confirmed fax, express courier, or certified mail, return receipt requested, to the address of the receiving party set forth in the IO, or at such different address as may be designated by such party by written notice to the other party from time to time, provided that notices to Advertiser may instead be given by confirmed email to the primary contact email address specified in the IO. Notice will be effective on receipt.
    4. No failure of either party to enforce any of its rights under this Agreement will act as a waiver of such rights. If one or more provisions of this Agreement are held to be unenforceable under applicable law, then such provision(s) shall be excluded from this Agreement, and the balance of the Agreement shall be enforceable in accordance with its terms.
    5. Neither party shall be liable for any delay or failure to perform any of its obligations set forth in this Agreement due to causes beyond its reasonable control. Neither party shall be liable for any unavailability or inoperability of the Internet, technical malfunction, or computer error or corruption resulting in loss of data or other harm.
    6. Advertiser and Gravity shall each act as independent contractors. Nothing in this Agreement shall be deemed or create or construed as creating a joint venture or partnership between the parties.
    7. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and may not be modified without the prior written consent of both parties. In no event shall any purchase order, insertion order, invoice or other document submitted by Advertiser concerning the subject matter hereof have any force or effect unless signed by Gravity or, in the case of IOs submitted using Gravity’s online form, until Gravity has confirmed its acceptance of the submitted IO.

Effective: August 16, 2012

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