GIANT MEDIA PUBLISHER MASTER TERMS AND CONDITIONS


  1. Introduction. These Terms and Conditions are entered into by Publisher and set forth the terms and conditions upon which Publisher may access and use the Publisher Program. Capitalized words used in these Terms and Conditions but not otherwise defined at first use shall have the meanings ascribed to them in Section 2 below.


  1. Definitions.

  1. Action” means any action linked to an Ad including, without limitation, any registration, form submission, offer response, or purchase.

  2. Ad” means the material that (i) promotes an advertiser brand, product or service, which may include, but not be limited to, banner ads, text ads, buttons, links, graphics, native video, and/or pre, mid, or post-roll video content, as applicable, and (ii) is provided by Giant Media to Publisher through the Publisher Program.

  3. Addendum” means an addendum attached hereto or otherwise agreed and signed by Publisher and Giant Media that incorporates these Terms and Conditions by reference.

  4. Advertiser” means an individual or entity having an agreement with Giant Media or a third party to serve Ads.

  5. Agreement” means these Terms and Conditions and each Addendum and Insertion Order.

  6. CPA” means cost per Action.

  7. CPC” means cost per click.

  8. CPM” means cost per thousand impressions.

  9. CPV” means cost per view.

  10. Giant Media Confidential Information” means any information disclosed by Giant Media, which is designated as “Confidential,” “Proprietary,” or some similar designation, or which under the circumstances surrounding disclosure ought to be treated as confidential. Giant Media Confidential Information does not include information which (i) is or becomes generally available or part of the public domain through no fault of Publisher; (ii) was already known by or available to Publisher prior to the disclosure by Giant Media; (iii) is subsequently disclosed to Publisher by a third party who is not under any obligation of confidentiality to Giant Media; or (iv) as can be shown by written documentation, has already been or is hereafter independently acquired or developed by Publisher without use of or reference to the Confidential Information of Giant Media.

  11. Giant Media Code” means the Javascript, HTML, VAST or VPAID code or other programming code provided by Giant Media under this Agreement for purposes of implementing Ads.

  12. Giant Media Marks” means the Giant Media name, the Giant Media logo, and Giant Media’s product and service names.

  13. Insertion Order” means a signed insertion order between Giant Media and Publisher that incorporates these Terms and Conditions by reference.

  14. Payment” means a payment from Giant Media to Publisher, as set forth in each applicable Addendum and Insertion Order.

  15. Payment Dispute Period” means the period of time beginning on the day Payment is received by Publisher and ending thirty (30) days thereafter.

  16. Personally Identifiable Information” means any data or other information that can be used to identify, contact, or locate a natural person including, but not limited to, name, address, telephone number, email address, or social security number.

  17. Privacy Policy” means a privacy policy that complies with applicable laws, rules, and regulations, which is clearly labeled and prominently available to users of the Publisher Properties, and that contains the following: (i) a description of the use of advertising technology relating to data collection and targeting activities; (ii) a description of the collection and use of user data by Publisher and third parties; (iii) a description of the provision of user data to third parties; and (iv) a free, functioning, easy to use “opt-out” or “unsubscribe” method for users to opt-out of data collection.

  18. Publisher” means the individual or the business, company or other entity (or agent acting behalf of the foregoing) that accepts these Terms and Conditions electronically or otherwise or that enters into an Addendum or Insertion Order.

  19. Publisher Program” means the Giant Media publisher program offered by Giant Media whereby Giant Media provides code or other software to publishers, and through which publishers may display Ads provided by Giant Media on websites or other publisher properties.

  20. Publisher Property or “Publisher Properties” means the website(s) or other properties approved in writing by Giant Media upon which Publisher displays the Ads.

  21. Terms and Conditions” means these Giant Media Publisher Master Terms and Conditions and each Addendum.

  22. User” means a bona fide human Internet user over 18 years old.


  1. Publisher Program Participation.


  1. Publisher’s participation in the Publisher Program is subject to the prior approval of Giant Media. Subject to the terms and conditions of this Agreement, Publisher shall (i) incorporate the Giant Media Code onto the Publisher Properties, and (ii) display the Ads on the Publisher Properties. Publisher grants Giant Media the right to serve the Ads to the Publisher Properties.


  1. Each Publisher Property is subject to review and approval or rejection by Giant Media, in its sole discretion, at any time. Publisher shall implement the Giant Media Code and the Ads, without modification, on the Publisher Properties in accordance with any placement requirements and reasonable technical specifications provided by Giant Media. At Giant Media’s request, Publisher shall cease the use of the Giant Media Code and/or display of Ads on certain or all of the Publisher Properties. Publisher is solely responsible for the Publisher Properties including, without limitation, all content, links and materials thereon.


  1. Publisher shall not display the Giant Media Code or the Ads anywhere other than the Publisher Properties. Further, Publisher shall not, and shall not authorize or permit any third party to (i) edit, alter, copy, modify, filter or change the order of the Ads or remove, obscure or minimize any Ads in any way; (ii) re-syndicate the Ads, (iii) display any Ads on any error page, on any chat page or in email; (iv) directly or indirectly access, launch, and/or activate Ads through or from, or otherwise incorporate the Ads in, any manner not expressly permitted under this Agreement; (v) “crawl,” “spider,” index or in any non-transitory manner store or cache information obtained from any Ads, or any part, copy or derivative thereto; or (vi) redirect a user away from any Advertiser website, provide a version of the Advertiser website that is different from the website a user would access by going directly to the Advertiser website, intersperse any content between the Ads and the Advertiser website, or otherwise provide anything other than a direct link from Ads to an Advertiser website.


  1. Giant Media reserves the right to improve, modify, remove, suspend, or discontinue, temporarily or permanently, in whole or in part, the Publisher Program or any data, information, content, software, technology, Ads, or features appearing on and/or offered through the Publisher Program at any time at its sole discretion without notice and without liability.


  1. Publisher grants Giant Media the right to access, obtain, index and cache data from the Publisher Properties, or any portion thereof including, without limitation, by automated means such as web spiders or crawlers. Publisher agrees that Giant Media may transfer and disclose to third parties information about Publisher and the Publisher Properties for the purpose of approving and enabling Publisher’s participation in the Program, including, without limitation, to third parties that reside in jurisdictions with less restrictive data laws than Publisher’s.


  1. If a username and/or password is required or provided to access the Publisher Program, Publisher shall (i) take commercially reasonable steps to safeguard its username and password, and (ii) be solely responsible for any and all unauthorized use of such. Publisher shall notify Giant Media immediately if Publisher becomes aware of any unauthorized use of any username or password or any other known or suspected security breach. Giant Media expressly disclaims liability for any changes or modifications made to a Publisher account resulting from Publisher’s failure to protect its account access credentials.


  1. Publisher acknowledges and agrees that the technology in the Publisher Program under this Agreement may be subject to restrictions and controls imposed by the United States Export Administration Act and the regulations promulgated thereunder. Publisher agrees that it will not export or re-export any technology licensed under this Agreement into any country in violation of United States export control law and regulation, or any other laws, rules or regulations of any country, state or jurisdiction.


  1. Payment.


Payments to Publisher shall be sent by Giant Media within sixty (60) days after the end of the calendar month in which the payments were earned. Payments shall be made to Publisher via a payment method offered by Giant Media for the Publisher Program. All Payments hereunder shall be made in U.S. Dollars. Giant Media’s determination of Payments shall be the only and definitive measure of Payments owed to Publisher under this Agreement. In the event of a dispute regarding Payments owed, Publisher will engage in good faith negotiations with Giant Media in an attempt to resolve the dispute. Publisher is solely responsible for providing and maintaining accurate and current contact information with Giant Media including, but not limited to, payment account and tax-related information. Any banking fees, wire fees, and/or other transaction costs in connection with the Payments shall be the sole responsibility of Publisher.


Notwithstanding anything in this Agreement to the contrary, payments may be adjusted by Giant Media for any credits, agency commissions or discounts, chargebacks, refunds for undelivered or misdelivered clicks, actions or impressions, and taxes (excluding taxes assessed on the net income of Giant Media) and other governmental charges. Further, Giant Media will have no obligation to pay Publisher any payments with respect to (i) amounts generated based on Publisher’s breach of this Agreement, (ii) payments which represent net adjustments downwards by Giant Media, in its sole discretion, based on the quality or validity of clicks, impressions, or Actions, or to payments made by Advertisers to Giant Media (or withheld from payments due from Advertisers) due to invalid or poor quality traffic, or (iii) payments earned through invalid activity, as determined by Giant Media in its sole discretion (which shall include, but not be limited to, (1) fraudulent or invalid clicks, impressions or other actions on any Ads generated by any user, person, bot, automated program or similar device, (2) payable events originating from Publisher’s IP addresses or computers under Publisher’s control, or (3) clicks, impressions or other actions on Ads solicited by payment of money, the exchange of goods or services, false representation, or request or incentive for users to click on or view Ads). Giant Media may withhold, chargeback, or keep all or a portion of any Payment to Publisher to offset any portion of any Payment previously tendered to Publisher in respect of any matter under this Section. Publisher understands that this may reduce the Payment owed to Publisher.


Publisher must notify Giant Media in writing within the Payment Dispute Period if Publisher has any dispute relating to any Payment. Failure to notify Giant Media of a dispute relating to a Payment before the end of the Payment Dispute Period shall result in a waiver by Publisher of any claim relating to such Payment. The Payments made under this Agreement are for use by Publisher only and may not be assigned, transferred or in any manner passed on to any third party unless expressly authorized in writing by Giant Media. Giant Media may offset from any Payment under this Agreement any delinquent amount owed by Publisher, or any parent, subsidiary, or affiliate of Publisher, to Giant Media or any parent, affiliate or subsidiary company of Giant Media.


Notwithstanding anything in this Agreement to the contrary, in the event that Publisher instructs Giant Media to mail Payment to an address within the USA and Payment owed is less than fifty dollars ($50), Giant Media may withhold Payment until the total amount due is at least fifty dollars ($50); Payment earnings of less than one hundred and twenty-four dollars ($124) may be held by Giant Media if Publisher instructs Payment to be tendered to an address outside the USA, until amounts exceed one hundred and twenty-four dollars ($124). As a result of administrative and other costs that Giant Media incurs in providing the Publisher Program, in the event that the total Payment amount owed to Publisher upon termination or expiration of this Agreement is less than fifty dollars ($50) (one hundred and twenty-four dollars ($124) for Payments to be tendered to an address outside the USA), notwithstanding anything else to the contrary set forth in this Agreement, Publisher understands and agrees that Giant Media is not obligated to send Publisher such Payment and that Giant Media may keep such as amount as an account closure administrative fee.


Giant Media shall not be responsible for any delays in Payments caused by incorrect banking information or other information supplied by Publisher. Publisher shall be solely responsible for the payment of, and shall pay when due and indemnify, defend, and hold harmless Giant Media from and against, all applicable taxes including, but not limited to, any sales, use, VAT, excise or transfer taxes and other taxes associated with Payments to Publisher under this Agreement (except for taxes assessed on Giant Media’s net income).


  1. Termination; Survival.


(a) Either party may terminate this Agreement or any Addendum or Insertion Order at any time upon at least two (2) business days’ prior written notice to the other party.


(b) This Section 5(b) and Sections 2, 4(b), 4(c), 4(d), 4(e), 6, 7(a), and 9 through 12 shall survive termination or expiration of these Terms and Conditions.


  1. Intellectual Property.


(a) Giant Media owns and retains all rights, title, and interest in and to the Publisher Program and the Giant Media Code. The Ads are protected by copyright, trademark, or other proprietary rights or laws. Except as expressly stated in this Agreement, Giant Media does not grant any license, express or implied, to the Giant Media Code or any other right, title, or interest to any intellectual property including, without limitation, any of Giant Media’s trademarks or service marks. Giant Media reserves all rights, title, and interest in and to its intellectual property. Publisher will not copy, alter, modify, decompile, reverse engineer, disassemble, create derivative works of, or otherwise attempt to derive source code from the Giant Media Code or otherwise use the Publisher Program in any way that violates the terms and conditions of this Agreement.


(b) The Giant Media Marks are the property of Giant Media. Publisher shall not use the Giant Media Marks for any purpose without the prior written approval of Giant Media, and then only in accordance with instructions provided by Giant Media.


  1. Confidentiality; Publicity. Publisher agrees not to use or disclose any Giant Media Confidential Information except as expressly permitted by this Agreement. Giant Media Confidential includes, without limitation, Payments, reports provided by Giant Media, and information, software, technology, documentation, and specifications relating to the Publisher Program. Publisher grants Giant Media a limited, revocable, fully-paid, royalty-free, license to display Publisher’s logo in promotional material to identify Publisher as a customer of Giant Media.


  1. Representations and Warranties.


(a) Publisher represents and warrants that (i) it has the full right, power, and authority to enter into and perform under this Agreement; and (ii) neither the execution, delivery, nor performance of this Agreement will result in a violation or breach of any contract, agreement, order, judgment, decree, rule, regulation or law to which it is bound.


(b) Publisher further represents and warrants that (i) it shall comply with all applicable laws, rules and regulations in its performance of this Agreement including, without limitation, any relevant data protection or privacy laws; (ii) it shall not at any time provide to Giant Media or use in connection with the Giant Media Code any Personally Identifiable Information, (iii) it has the right to transfer to and/or share with Giant Media any data, including, but not limited to, any data about or related to consumers and consumer preferences, that Publisher tenders to Giant Media in performance of this Agreement, and that such is not shared or provided to Giant Media in violation of any laws or regulations or any applicable privacy policy; (iv) the Publisher Properties (1) are owned and managed by Publisher or are owned and managed by a third party that has contracted with Publisher for Publisher to provide advertisements including, without limitation, the Ads, (2) do not and will not violate any applicable law or regulation or codes of practice (including, but not limited to, data protection legislation), (3) do not and will not infringe intellectual property of any third party whether registered or not or registrable or not (including, but not limited to, copyright, database rights, patent, trade mark, trade secret or other intellectual property right), (4) do not and will not breach any duty towards or rights of any person, (5) are not and will not be false or misleading, (6) do not and will not contain any viruses, worms, Trojan horses, or any other contaminating or destructive feature, (7) do not and will not contain or promote any content that is illegal, pornographic, gambling-related, hate-related, abusive, false, fraudulent, deceptive, misleading, obscene, defamatory, unethical, infringing upon intellectual property or other right of another, racially or ethnically objectionable, or otherwise objectionable to Giant Media, in its sole discretion, and (8) at all times will have a Privacy Policy; (v) it shall take commercially reasonable steps to ensure that its Users are in fact over 18 years old; and (vi) it shall include provisions in its user terms and conditions, terms of use, or similar terms with respect to use of the Publisher Properties by users that (A) the users expressly agree to arbitrate disputes on an individual basis and not to participate as a plaintiff or class member in any purported class or representative proceeding, (B) the users expressly waive any right to a court or jury trial and right to participate in a class action, with class arbitrations and class actions not being permitted, (C) Giant Media shall be an intended third party beneficiary to the foregoing, and (D) Users must be over 18 years old.


  1. Indemnification. Publisher shall defend, indemnify and hold Giant Media, its parent and its and their subsidiaries, directors, officers, employees, representatives, agents, and Advertisers, harmless from and against any judgment, loss, liability, cost, damage, or expense (including reasonable attorneys’ fees) arising out of or relating to the Publisher Properties or Publisher’s breach of this Agreement.


  1. Disclaimer of Warranties. THE PUBLISHER PROGRAM AND MATERIALS PROVIDED THROUGH THE PUBLISHER PROGRAM ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS. GIANT MEDIA DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT AND INCLUDING ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, GIANT MEDIA SPECIFICALLY DISCLAIMS ANY WARRANTY REGARDING (A) THE LIKELIHOOD OF SUCCESS OF PUBLISHER’S PARTICIPATION IN THE PUBLISHER PROGRAM, (B) the amount of any payment OR PROFITS to be made to PUBLISHER under this AgreemenT, AND (C) THE ERROR-FREE, DISRUPTION-FREE OR INTERRUPTION-FREE NATURE OF THE PUBLISHER PROGRAM.


  1. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY LAW AND NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN (A) GIANT MEDIA SHALL NOT BE LIABLE UNDER THIS AGREEMENT FOR ANY CLAIM FOR INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS), OR ANY CLAIM IN TORT, WHETHER OR NOT ARISING IN WHOLE OR PART OUT OF GIANT MEDIA’S ACT, OMISSION, FAULT, NEGLIGENCE, STRICT LIABILITY, OR PRODUCT LIABILITY (EVEN IF SUCH DAMAGES ARE FORESEEABLE OR GIANT MEDIA HAS BEEN ADVISED OR HAS CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES), AND (B) GIANT MEDIA’S AGGREGATE LIABILITY UNDER THIS AGREEMENT FOR ANY REASON WILL NOT EXCEED THE PAYMENTS PAID BY GIANT MEDIA TO PUBLISHER IN THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION AROSE. EACH PARTY ACKNOWLEDGES THAT THE OTHER PARTY HAS ENTERED INTO THIS AGREEMENT RELYING ON THE LIMITATIONS OF LIABILITIES STATED HEREIN AND THAT THOSE LIMITATIONS ARE THE ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.


  1. General Provisions.


(a) Force Majeure. Neither party shall be liable in damages for any delay or default in performance of this Agreement if such delay or default is caused by unforeseen conditions beyond the reasonable control of the delaying or defaulting party, including acts of God, restrictions by a government authority, wars, revolutions, terrorism, strikes (other than any strike by the delaying or defaulting party's employees), fires, floods, earthquakes, embargoes, or degradation of telephone or other communications services, including but not limited to, degradation of all or part of an Internet backbone.


(b) Relationship of the Parties. Giant Media and Publisher are independent contractors and neither party is an agent, representative, partner or joint venture partner of the other.


(c) Entire Agreement. This Agreement sets forth the entire agreement between the parties with respect to the subject matter hereof, and supersedes any and all prior and contemporaneous agreements, communications, and understandings (whether written or oral) between the parties, with respect to their subject matter. No party has been induced to enter into this Agreement by virtue of, and is not relying upon, any representations or warranties not set forth in this Agreement, any correspondence or communication preceding the execution of this Agreement, or any prior course of dealing between the parties. If there is any conflict between the terms of these Master Terms, an Addendum, and any Insertion Order, the order of priority for resolution of the conflict shall be the Insertion Order followed by the applicable Addendum, followed by the Master Terms.


(d) Choice of Law and Venue. This Agreement shall be interpreted and enforced in all respects under the laws of the State of Missouri, as applicable to contracts to be performed entirely within the State of Missouri. Any litigation arising out of this Agreement will be brought solely and exclusively in the state or federal courts located in Kansas City, Missouri, and the parties agree that jurisdiction and venue properly lie in such courts and waive any claim that a proceeding in any such court has been brought in an inconvenient forum.


(e) Waiver. Failure by a party to enforce at any time or for any period of time any provisions of this Agreement shall not be construed as a waiver of such provisions, and shall in no way affect a party’s right to later enforce such provisions. No provision or part of this Agreement or remedy hereunder may be waived except by a writing signed by a duly authorized representative of the party making the waiver.


(f) Severability. If any one or more of the provisions of this Agreement shall for any reason be held to be invalid, illegal or unenforceable by a court of law, the remaining provisions of this Agreement shall be unimpaired, and the invalid, illegal or unenforceable provision shall be replaced if possible by a mutually acceptable provision, which being valid, legal and enforceable, comes closest to the intention of the parties underlying the invalid, illegal or unenforceable provision.


(g) Miscellaneous. Giant Media may modify the terms and conditions of this Agreement upon notice to Publisher, including through publication on Giant Media’s Web site, through the Publisher Program, or through email notification to Publisher. Publisher’s continued use of the Publisher Program after such notice shall be deemed Publisher’s acceptance of such modification. This Agreement may only be modified otherwise by an agreement executed by the parties. Publisher may not assign or delegate this Agreement, in whole or in part, without the prior written consent of Giant Media, and any such attempt in violation hereof is void. Notices to Giant Media under this Agreement shall be transmitted via expedited courier to the attention of Legal Department at 4600 Madison Ave., 10th Floor, Kansas City, MO 64112.



V1.0/1Apr15

YARPP RECOMMENDATION ENGINE ADDENDUM


This Addendum shall be applicable when Publisher implements the Giant Media Code known as the “YARPP Recommendation Engine”, which analyzes the content of a website and suggests other content on the website which may be of interest to users, on the Publisher Properties. For each such implementation, this Addendum is fully incorporated and integrated with the Terms and Conditions, attached hereto. Capitalized words used but not otherwise defined herein shall have the meanings ascribed to them in the Terms and Conditions.


  1. Definitions.


Gross Revenue” means the amount received and recognized by Giant Media with respect to Actions undertaken by Users on Ads (including, without limitation amounts paid by Advertisers on a CPA, CPC, or CPM basis) for which Giant Media has received a valid Advertiser tracking id.


  1. Payment. Giant Media shall pay Publisher a Payment, as determined by Giant Media in its sole discretion, relating to the Gross Revenue each calendar month. Payments will be determined by Giant Media based on a number of factors, which may include, without limitation, the quantity, quality, and validity of clicks on Ads, Ad impressions, Actions, and User demographics such as the country of origin of a User’s IP address. Giant Media will provide Publisher a report showing a reasonable estimate of the Payment earned by Publisher and other information as Giant Media may determine, in its sole and absolute discretion, from time to time.


  1. Additional Publisher Representations and Warranties. In addition to, and notwithstanding anything to the contrary in, the representations and warranties set forth in the Terms and Conditions and any applicable Addendum and Insertion Order, Publisher further represents and warrants that Publisher is the owner of the Publisher Properties and that the Publisher Properties are targeted to Users.