Subject to Service Order:
This Agreement, effective as of the Effective Date provided in the Service Order, is entered into by and between Voranda, Inc. (“Voranda”), a California Corporation, and the Publisher listed on such Service Order.
SECTION 1 – VORANDA SERVICES.
1.1 Provision of Services. Voranda will use commercially reasonable efforts to provide Publisher with the applicable Voranda Services.
1.2 License. During the Term, Voranda grants Publisher a non-exclusive, non-sublicensable right to access to Voranda Services solely for purposes of (a) displaying advertisements on Publisher Properties through the Voranda Services, and (b) receiving reporting data made available via the Voranda Services for Publisher’s internal business purposes. During the Term, Publisher hereby grants Voranda the exclusive right to serve advertisements on the Publisher Properties via the Voranda Services.
SECTION 2 – WARRANTIES; DISCLAIMER
2.1 Mutual Warranties. Each party represents and warrants to the other party that: (a) it has all necessary rights and authority to enter into, execute and perform its obligations under this Agreement; and (b) the execution of this Agreement and the performance of its respective obligations hereunder do not and will not violate any agreement to which such party is a party or by which it is otherwise bound.
2.2 Voranda Warranties. Voranda represents and warrants to Publisher that Voranda will not violate any applicable law, rule or regulation in connection with the performance of the Voranda Services hereunder.
2.3 Publisher Warranties. Publisher represents and warrants to Voranda that: (a) each Publisher Property that displays advertisements via the Voranda Services shall: (i) neither violate any applicable laws or regulations, nor contain Prohibited Content, and (ii) properly categorize the inventory type for the site ID of the Publisher Property in accordance with Voranda’s then current guidelines; (b) it will not, and will not permit any third party to, directly or indirectly (i) access, launch or activate the Voranda Services through or from, or otherwise incorporate the Voranda Services in, any software application, website or other means other than the Publisher Properties, (ii) transfer, sell, lease, syndicate or otherwise sublicense the Voranda Services, (iii) generate queries, or impressions of or clicks on ads, through any automated, deceptive, fraudulent or other invalid means, (iv) encourage or require end users or any other persons, either with or without their knowledge, to click on the advertisements displayed through the Voranda Services through offering methods that are manipulative, deceptive, malicious or fraudulent, or (v) pass any data to Voranda that could be used to personally identify any person without obtaining such person’s consent to pass such data to Voranda (including, without limitation, any personally-identifiable information or personal data passed via custom key-values or other parameters); (c) it has and will maintain throughout the Term all rights, authorizations and licenses (including without limitation any copyright, trademark, patent, publicity or other rights) that are required with respect to the Publisher Properties and to permit Voranda to provide the Voranda Services to Publisher as contemplated under this Agreement; (d) it shall ensure that its use of Voranda Services shall at all times comply with all applicable laws and that it shall routinely use reasonable efforts to police its use of the Voranda Services to ensure compliance with such laws; (e) any technology and/or content used by Publisher in connection with the Voranda Services shall not infringe on the intellectual property rights of any third party; and (f) it shall not operate Voranda Services or otherwise act in a manner which is damaging to the reputation of Voranda. “Prohibited Content” is defined as any material which supports illegal activities, or any material that is or contains malware, viruses, or other potentially destructive computer programs and security threats.
2.4 DISCLAIMERS. EXCEPT FOR THE EXPRESS WARRANTIES CONTAINED IN THIS AGREEMENT, EACH PARTY SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS, WARRANTIES, CONDITIONS OR UNDERTAKINGS, EXPRESS OR IMPLIED, REGARDING ITS RESPECTIVE SERVICES OR PRODUCTS, OR ITS PERFORMANCE OR NON-PERFORMANCE HEREUNDER, INCLUDING NON-INFRINGEMENT, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. VORANDA DOES NOT WARRANT THAT THE VORANDA SERVICES WILL BE ERROR FREE OR WITHOUT INTERRUPTIONS NOR PROVIDE A WARRANTY WITH RESPECT TO ANY THIRD-PARTY SOFTWARE, PRODUCT OR SERVICE NOT PROVIDED BY VORANDA. PUBLISHER ACKNOWLEDGES AND AGREES THAT VORANDA PROVIDES NO GUARANTEE OF VOLUME OF IMPRESSIONS DELIVERED, CLICKS RECEIVED OR AMOUNT OF REVENUE EARNED HEREUNDER. VORANDA DISCLAIMS ANY WARRANTIES TO OR BY ANY THIRD PARTY (INCLUDING CLIENTS OF PUBLISHER WHICH HAVE ACCESS TO THE VORANDA SERVICES).
SECTION 3 – FEE; PAYMENT.
3.1 Net Revenue; Payments; Reporting.
3.1.1 Voranda shall pay Publisher the Net Revenue, net of (a) applicable fees for each Voranda Service and (b) Charged Adjustments, within thirty (30) days following the end of each calendar month. Voranda shall provide Publisher with a monthly statement which includes the Net Revenue, fees for each Voranda Service, and Charged Adjustments (if applicable) (the “Monthly Statement”). If Publisher does not raise any issues in writing about the Monthly Statement within thirty (30) days of receipt, Publisher will forfeit its right to do so. Publisher acknowledges that all numbers displayed in any other reporting apart from the Monthly Statement made available by Voranda are estimates and do not represent figures suitable for billing purposes.
3.1.2. Publisher acknowledges and agrees that (a) the Voranda Fee provided herein for any of the Voranda Services elected by Publisher may vary in accordance with the terms of third-party supply optimization (“SPO”) agreements between Voranda and applicable Demand Partner(s), and (b) in the event of any conflict between the Voranda Fee provided in the Agreement and that provided in an SPO agreement with a Demand Partner, the latter shall control.
3.2 Taxes. Publisher will pay all taxes (including excise, sales, use, consumption, value-added or withholding taxes), customs or import duties, or any other levies, tariffs, duties or governmental fees that are due or payable in connection with this Agreement (“Taxes”), with the exception of taxes on Voranda’s net income. Each party agrees to cooperate in good faith with respect to reasonable requests from the other party regarding Tax-related forms, documentation or other information relating to this Agreement that may be necessary or appropriate.
SECTION 4 – TERM, TERMINATION.
4.1 Term. The initial term of this Agreement shall begin as of the Effective Date and shall continue thereafter for twelve (12) months (the “Initial Term”), unless earlier terminated in accordance with the terms of this Agreement. At the end of the Initial Term and each renewal term thereafter (together with the Initial Term, the “Term”), the term of this Agreement shall automatically renew for consecutive twelve (12) month periods (each a “Renewal Term”) unless either party provides the other party with written notice of non-renewal at least thirty (30) days prior to the date of the then existing Renewal Term.
4.2 Termination for Cause. A party shall have the right to terminate this Agreement if the other party breaches any material term or condition of this Agreement and fails to cure such breach within ten (10) days after receipt of written notice of such breach. Termination of this Agreement by either party for breach will be a non-exclusive remedy for breach and will be without prejudice to any other right or remedy of such party.
4.3 Effects of Termination. In the event of termination of this Agreement, Publisher shall immediately cease using the Voranda Services, and each party shall destroy or return to the other party all copies in any form of the other party’s Confidential Information. The following provisions will survive termination of this Agreement: Sections 3 (Fee; Payment), 4.3 (Effects of Termination) and 6 through 13 of this Agreement.
SECTION 5 – USE OF MARKS.
5.1 Except as necessary in furtherance of the Voranda Services elected by Publisher hereunder, neither party shall use the other party’s name, logos nor other marks without prior written consent (email being sufficient).
5.1.2 Publisher hereby grants Voranda consent to use Publisher’s name, logos, and other marks for the purpose of selling services in connection with the Publisher Properties.
SECTION 6 – PRIVACY; DATA USE.
6.2 Privacy Compliance Requirements.
6.2.1 Each party agrees that it shall comply with its respective obligations under applicable data protection and privacy laws, regulations, and industry self-regulatory rules, codes and guidelines, including, without limitation and as applicable, U.S. laws; the rules, codes and guidelines of the Digital Advertising Alliance (DAA) and the Network Advertising Initiative (NAI); and the EU General Data Protection Regulation (Regulation 2016/679).
6.2.2 Publisher agrees that it is responsible and liable for providing notice and obtaining any required user consent on behalf of itself, Voranda and all applicable Demand Partners with respect to (a) passing personal information, precise location data, user device identification or any sensitive information of its users to Voranda and Demand Partners, (b) collecting and using statistical identification of its users or other non-cookie technologies (such as eTags and web or browser cache), (c) collecting and using information across web browsers and devices, and (d) first- and third-party cookies, including without limitation, ensuring users are clearly informed about third-party cookies and promptly notifying Voranda in the event a user opts out of having third-party cookies dropped. Voranda will cooperate with Publisher in complying with such requirements.
6.2.3 The EU Data Protection Addendum linked hereto shall form part of this Agreement and its terms are hereby incorporated in the Agreement by reference.
6.2.4 Publisher shall not include or launch any Publisher Property on any of the Voranda Services if such Publisher Property is directed at children under age thirteen (13), and Publisher shall flag within the Voranda Services or inform Voranda in writing prior to launching any of such Publisher Properties on any of the Voranda Services.
6.2.5 If any Publisher Property is a mobile application, then Publisher must clearly and conspicuously post notice, or a link to such notice, in any store or on any website or otherwise where the mobile applicable may be acquired that contains: (a) a statement of the fact that data may be collected for cross-app advertising; (b) a description of types of data, including any personally identifiable information, precise location data, or personal directory data, that are collected for cross-app advertising purposes; (c) an explanation of how, and for what purpose, the data collected will be used or transferred to third parties; and (d) a conspicuous link to or description of how to access an opt-out mechanism. If notice cannot be provided in or around advertisements, then Publisher should make arrangements to provide notice within the application or on the landing page of the advertisement.
6.3 Data Ownership and Use; Feedback. Voranda retains all right, title and interest in and to all Voranda Data. Publisher retains all right, title and interest in and to all Publisher Data. Publisher hereby grants Voranda and its Demand Partners a limited, irrevocable, royalty-free, worldwide license to collect, use and share user data that is passed by Publisher (a) in connection with the Voranda Services, (b) to use such data for reporting purposes, and (c) in response to a legal demand or process.
SECTION 7 – CONFIDENTIALITY.
Each party shall treat as proprietary and shall maintain in strict confidence all Confidential Information of the other party and shall not, without the express prior written consent of such other party, disclose such Confidential Information or use such Confidential Information other than in furtherance of its obligations hereunder. Notwithstanding the foregoing, Confidential Information shall not include information which the receiving party can demonstrate with written documentation: (a) is known to the receiving party at the time of the disclosure; (b) has become publicly known through no wrongful act of the receiving party; (c) has rightfully been received from a third-party which the disclosing party has authorized to make such disclosures; or (d) was disclosed pursuant to a court order or similar governmental authority, provided, however, that the receiving party shall provide prompt notice of such order to the disclosing party to enable the disclosing party to act to prevent or restrict the ordered disclosure. The terms of this Agreement shall be deemed Confidential Information of Voranda. For purposes of this Agreement, Confidential Information shall not include Take Rate.
SECTION 8 – ASSIGNMENT.
The rights and obligations of each party under the Agreement shall not be assigned without the prior written approval of the other party, which approval shall not be unreasonably withheld; provided, however, that either party may assign the Agreement without such consent to a corporate affiliate or in connection with a change of control or sale of substantially all of its assets, subject to the assigning party providing prior written notice of such assignment. Any attempted assignment without consent where consent is required shall be void.
SECTION 9 – INDEMNIFICATION.
9.1 Voranda’s Indemnity Obligations. Voranda agrees to indemnify, defend and hold harmless Publisher and its officers, directors, shareholders, corporate affiliates, agents, successors and assigns (collectively, the “Publisher Indemnified Parties”) from and against any third-party claim, suit or proceeding (“Claim”) against the Publisher Indemnified Parties arising out of, related to, or alleging: (i) infringement of any intellectual property right of a third-party by the Voranda Services; or (ii) any violation by Voranda of applicable privacy laws.
9.3 General Indemnity Provisions.
In all cases in which a party seeks indemnification and/or defense hereunder, the indemnitee shall provide the indemnitor with prompt written notice of such Claim, reasonable cooperation and assistance to the indemnitor in connection with such Claims, and full control and authority to investigate, defend and settle such Claims, subject to prior approval by the indemnitee. The indemnification obligations of each party do not apply to the extent that a Claim arises out of the other party’s violation of this Agreement. If any of the Voranda Services becomes the subject of an infringement Claim under this Agreement, Voranda may either (i) procure for Publisher the right to continue using the applicable Voranda Services, (ii) replace or modify the applicable Voranda Services so that it becomes non-infringing, or (iii) if clauses (i) and (ii) are not commercially practicable, terminate this Agreement upon written notice to Publisher. Notwithstanding the foregoing, Voranda will have no obligation with respect to any infringement Claim based upon (i) any use of the Voranda Services not in accordance with this Agreement or for purposes not intended by Voranda, (ii) any use of the Voranda Services in combination with other products, equipment, or software not supplied by Voranda, or (iii) any modification of the Voranda Services by any person other than Voranda or its authorized agents or subcontractors. THIS SECTION STATES EACH PARTY’S ENTIRE LIABILITY AND SOLE AND EXCLUSIVE REMEDY FOR INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS AND ACTIONS.
SECTION 10 – LIMITATIONS ON LIABILITY.
EXCEPT WITH RESPECT TO EITHER PARTY’S CONFIDENTIALITY, INDEMNIFICATION AND PAYMENT OBLIGATIONS, OR FRAUD AND WILLFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE VORANDA FEE DUE UNDER THIS AGREEMENT IN THE THREE-MONTH PERIOD PRECEDING THE CLAIM. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES (INCLUDING LOST PROFITS, LOSS OF USE OR LOST DATA) OF THE OTHER PARTY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, NOR SHALL VORANDA BE LIABLE FOR THE ACTS OR OMISSIONS OF PUBLISHER’S DEMAND PARTNERS OR CLIENTS, PUBLISHER’S ACTIVITIES WITH RESPECT TO OTHER PUBLISHERS WHO USE THE VORANDA SERVICES, OR ANY THIRD-PARTY SERVICE PROVIDERS OF VORANDA OR PUBLISHER.
SECTION 11 – CHOICE OF LAW & VENUE.
This Agreement shall be construed and interpreted under the laws of the State of California without giving effect to California’s principles of conflict of laws, and the parties hereby submit to the exclusive jurisdiction of, and waive any venue objections against the state and federal courts located in Santa Clara County, California in any dispute arising under or in connection with this Agreement.
SECTION 12 – MISCELLANEOUS.
This Agreement constitutes the entire agreement between the parties, and supersedes all prior agreements or communications, relating to the subject matter hereof. This Agreement shall not be modified by except by a written agreement between the parties; provided, however, that Voranda may amend or modify any of the terms and conditions in the Agreement upon at least thirty (30) days’ prior written notice to Publisher. If any such changes notified by Voranda are to commercial terms in the Agreement and they are not acceptable to Publisher, Publisher must notify Voranda in writing of its objection thereto prior to the expiration of such 30-day notice period. If such written notification is not made by Publisher during the applicable 30-day period, continued use of the Voranda Services by Publisher will constitute its binding acceptance of the applicable changes to the commercial terms. For the avoidance of doubt, Publisher may not object to noticed changes to non-commercial terms. The failure of either party to enforce strict performance by the other party of any provision of the Agreement or to exercise any right hereunder or thereunder shall not be construed as a waiver of that party’s right. In the event that any provision of the Agreement is held invalid by a court with jurisdiction over the parties, such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and the remainder of the Agreement shall remain in full force and effect. The parties are each independent contractors, and nothing in this Agreement is intended to create a partnership, joint venture or agency relationship between them. The rights and obligations of each party under the Agreement shall not be assigned without the prior written approval of the other party, which approval shall not be unreasonably withheld; provided, however, that either party may assign the Agreement without such consent to a corporate affiliate or in connection with a change of control or sale of substantially all of its assets, subject to the assigning party providing prior written notice of such assignment. Any attempted assignment without consent where consent is required shall be void. Subject to the foregoing, each party’s rights and obligations shall inure to the benefit of their respective successors and permitted assigns. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same agreement. This Agreement may be executed via a recognized electronic signature service or delivered by facsimile transmission, or may be signed, scanned and emailed, and any such signatures shall be treated as original signatures for all applicable purposes. Any notices given under this Agreement shall be deemed to be effectively given (i) when delivered personally, (ii) five (5) days after being placed in the mail, postage prepaid, certified, registered or similar mail status, or (iii) one (1) day after being sent via recognized express courier service, in each case, to the recipient’s address specified in this Agreement or such other address as specified by the parties in writing, with a copy to the attention of General Counsel for notices sent to Voranda at the following postal address:
650 Castro Street, #120-275
Mountain View, CA 94043
SECTION 13 – DEFINITIONS.
13.1 “Charged Adjustments” means (a) charges for monetized impressions that were generated through automated or other invalid means, or violate the Supply Policy, and (b) uncollected payments by Demand Partners for Publisher Inventory.
13.2 “Confidential Information” means any information of the disclosing party which is, or should reasonably be understood to be, confidential or proprietary to the disclosing party or its client, including, but not limited to, information disclosed between parties, either directly or indirectly, in writing, drawing, orally, or electronically.
13.3 “Demand Partner” means Voranda’s media buying clients, including but not limited to demand side platforms, ad exchanges, agencies, agency trading desks and ad networks.
13.4 “EEA” means European Economic Area.
13.5 “EU Data Protection Addendum” means the data protection addendum located at https://voranda.com/legal/eu-data-protection-addendum/.
13.6 “Net Revenue” represents revenue earned by Publisher based on Publisher Inventory monetized via the Voranda Services as determined by Voranda. Net Revenue is earned by Publisher upon collection by Voranda.
13.8 “Prohibited Content” is defined as any material which supports illegal activities, or any material that is or contains malware, viruses, or other potentially destructive computer programs and security threats.
13.9 “Publisher Data” means data it provides to or makes available to Voranda under this Agreement.
13.10 “Publisher Inventory” means the advertising inventory or slots made available by Publisher and Publisher’s third-party clients in the Publisher Properties.
13.11 “Publisher Properties” means the websites, video, mobile applications and other digital media properties owned, operated, controlled, or made available by Publisher or Publisher’s third-party clients.
13.12 “Voranda Data” means data derived from or related to the Voranda Services, including all data collected by Voranda or its Demand Partners in connection with the Voranda Services, and any data provided or made available by Voranda, its Demand Partners or third-party service providers.
13.13 “Voranda Services” means Voranda’s online advertising services, products, and features described at https://voranda.com/legal/program-descriptions/.
13.14 “Supply Policy” means the supply policy located at https://voranda.com/legal/supply-policy/.
13.15 “Take Rate” means the percentage of Net Revenue retained by Voranda for each of the Voranda Services elected on the Service Order.
In the Absence of a Service Order or Mutually Agreed upon Publisher Master Services Agreement:
The aforementioned Publisher Services Agreement is a legal document You must follow and comply with when accessing or using the Voranda Services in the absence of a mutually agreed upon contract between You and Voranda. As used in this section, “You” or “Your” means the party accesses or uses the Voranda Services, and any company, entity, or organization on whose behalf that party is acting (“Publisher”).
IF YOU OR PUBLISHER DO NOT WISH TO BE A PARTY TO THESE TERMS OR IF YOU OR PUBLISHER DO NOT AGREE TO ALL OF THE TERMS, THEN DO NOT ACCESS OR USE THE VORANDA SERVICES.
If You are using the Voranda Services on behalf of Publisher, You represent and warrant that You have authority to bind Publisher, as applicable, and Publisher agrees to indemnify Voranda for any violations of the aforementioned terms and conditions.
Notwithstanding the foregoing, the Effective Date shall be the first date You access or use the Voranda Services.
Notwithstanding the foregoing, the Voranda Fee and Take Rate shall be the default amounts charged by Voranda based on Voranda’s applicable rate card as of the Effective Date.