TERMS OF SERVICE
Last updated: June 30, 2013
These Terms of Service (this “Agreement”) constitute a legal agreement between You (“You,” “Your” or “Publisher”) and GumGum, Inc. (“GumGum”) concerning GumGum’s performance of certain advertising services, which are referred to in this Agreement as “GumGum Ad Services.”
By clicking on the “Accept” button for this Agreement or registering for GumGum Ad Services, You are indicating acceptance of this Agreement by You and, if applicable, the business entity on whose behalf You receive GumGum Ad Services and signify Your agreement to be bound by the terms and conditions of this Agreement.
If You are receiving GumGum Ad Services on behalf of another company, such as Your employer or a client, You represent that You have the authority to bind such company to this Agreement. If You do not agree with all of the terms and conditions of this Agreement, please do not register for GumGum Ad Services and GumGum shall have no obligations to You hereunder.
GumGum may amend this Agreement at any time and any additional or different terms in this Agreement shall be effective upon being posted on this page of GumGum’s website located at www.gumgum.com. Your continued receipt of GumGum Ad Services and/or acceptance of payment from GumGum following the posting of any additional or different terms in this Agreement constitutes Your irrevocable acceptance of those additional or different terms.
This Agreement constitutes the entire agreement between You and GumGum with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings or agreements, written or oral, regarding the subject matter hereof.
ARTICLE I GUMGUM AD SERVICES.
“Advertisement(s)” means advertising in any form or media whatsoever, which may include, among other things, text, video feeds, links to websites, graphic artwork, images, and downloads of third party software applications.
“GumGum Ad Services” means the advertising services provided by GumGum serving Advertisements on Publisher Websites in accordance with this Agreement.
“GumGum Technology” means GumGum’s proprietary technology that enables GumGum to serve an In-Image Ad, an In-Screen Ad or a Toolbar Ad.
“Images” means photographic images.
“In-Image Ad” means an Advertisement that is displayed across or adjacent to (e.g., beneath) an Image (other than an animated GIF image) that (i) is at least 250 x 200 pixels, and (ii) is displayed on a page of a Publisher Website.
“In-Screen Ad” means an Advertisement that is displayed at the bottom of a page of a Publisher Website across the entire width of the page.
“Publisher Website(s)” means a website or websites owned and/or operated by Publisher, which may be accessed by various computing devices capable of accessing the Internet including, without limitation, personal computers, tablet computers and mobile phones.
“Served Ad” means an Advertisement, including an In-Image Ad, In-Screen Ad or a Toolbar Ad, served by GumGum on a Publisher Website.
“Toolbar Ad” means an Advertisement that is displayed in, on or adjacent to a web browser toolbar included on a page of a Publisher Website.
2. GUMGUM AD SERVICES.
In order to receive GumGum Ad Services, Publisher must accept this Agreement and register for an account. Upon Publisher’s registration, GumGum will provide Publisher with a password for accessing its account. During the term of this Agreement, Publisher will be granted access to a Web-based “Control Panel” tool for use in managing Publisher’s account, including specifying from time to time the advertising services that Publisher elects to receive from GumGum and those advertising services that Publisher elects not to receive from GumGum.
Publisher is solely responsible for maintaining the confidentiality of its account password and for all activities that occur through the use of Publisher’s account. Publisher shall immediately notify GumGum of any unauthorized use of the password or Publisher’s account.
GumGum will not be liable for any loss or damage arising from Publisher’s failure to comply with this article. GumGum will provide GumGum Ad Services to Publisher, subject to Publisher’s compliance with all of the terms and conditions of this Agreement. So long as the GumGum Technology is installed or integrated with Publisher Websites, GumGum shall have the exclusive right to sell and serve In-Image Ads, In-Screen Ads and Toolbar Ads on such Publisher Websites.
GumGum reserves the right to refuse to place Advertisements on any Publisher Website if GumGum determines, in its sole discretion, that such Publisher Website or any content displayed on such Publisher Website is illegal, in violation of this Agreement or an agreement between GumGum and an advertiser, violates any third party’s rights or GumGum’s advertising platform policies then in effect. GumGum assumes no responsibility for the content, functionality, security, services, data usage policies or practices of any third party advertiser or the content, functionality, products or services associated with any Served Ad.
Publisher is responsible for any Internet connection fees that it incurs when accessing GumGum Ad Services.
3. TERM AND TERMINATION.
This Agreement shall continue in effect until terminated by either party. Publisher may terminate this Agreement at any time by (a) removing the GumGum Technology from all of the Publisher Websites, (b) terminating GumGum Ad Services through Publisher’s account or (c) terminating Publisher’s account.
Upon any termination of this Agreement, Publisher shall promptly remove the GumGum Technology from all Publisher Websites and GumGum shall have no further obligation to provide GumGum Ad Services. In addition, GumGum may immediately suspend GumGum Ad Services and/or terminate this Agreement if it has reason to believe Publisher has committed a material breach of any provision of this Agreement.
Following termination of this Agreement, GumGum will perform a final accounting of amounts payable to Publisher hereunder and, subject to GumGum’s right to offset the earned balance of amounts due to Publisher against paid amounts determined by GumGum to be in error or the result of fraud or any act by, or at the direction of Publisher, in violation of this Agreement, GumGum will pay the earned balance of amounts due to Publisher hereunder within approximately ninety (90) days following the last day of the month in which this Agreement is terminated.
Termination of this Agreement shall not prejudice GumGum’s rights, defenses and limitations of liability provided under this Agreement, which rights, defenses and limitations of liability shall survive termination of this Agreement.
The following articles of this Agreement shall survive termination of this Agreement: Article I, Sections 1, 3, 4 and 5 and Article II, Sections 3 and 6 - 13.
4. LIMITATION OF DAMAGES.
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT SHALL GUMGUM, ITS AFFILIATES, DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, AGENTS, LICENSORS, LICENSEES OR ADVERTISERS BE LIABLE TO PUBLISHER OR ANY OTHER PARTY IN ANY WAY ARISING OUT OF OR RELATING TO GUMGUM AD SERVICES UNDER ANY CONTRACT, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY AMOUNT IN EXCESS OF ONE THOUSAND DOLLARS ($1,000).
Publisher agrees to defend, indemnify and hold GumGum and its affiliates, directors, officers, shareholders, employees, agents, licensors, licensees and advertisers harmless from and against any and all third party claims, suits, demands, loss, liabilities, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees and costs) arising from or relating to (a) Publisher’s breach of any of the terms and conditions of this Agreement or (b) Publisher’s violation of any applicable law, statute, ordinance, regulation or any third party’s rights including, but not limited to, patent, copyright or trademark infringement, dilution or tarnishment of any third party’s trademark or violation or misappropriation of any other intellectual property rights, or any claim of defamation, libel or slander or privacy violation.
This obligation shall survive the termination and/or expiration of this Agreement.
ARTICLE II GENERAL TERMS AND CONDITIONS
1. PUBLISHER OBLIGATIONS.
Publisher will (a) install and integrate the GumGum Technology in pages of all Publisher Websites in accordance with this Agreement; (b) permit GumGum to monitor and validate Publisher’s use of the GumGum Technology; (c) immediately report to GumGum any problems with the GumGum Technology; (d) use best efforts to prevent unauthorized use of the GumGum Technology; and (e) immediately report to GumGum any violation or alleged violation of GumGum’s intellectual property rights.
Publisher acknowledges that the GumGum Technology employs cookies that are stored on computers used by end users who visit Publisher Websites and such cookies transmit navigational, behavioral and tracking information about the end users’ use of such Publisher Websites to GumGum and GumGum’s vendors and service providers.
Publisher acknowledges that Publisher, and not GumGum, is solely responsible for the operation of Publisher Websites (including, without limitation, all content and materials displayed on Publisher Websites and the transmission of data between Publisher Websites and GumGum) and for the display of, or any failure to display, any Images.
2. PUBLISHER RESTRICTIONS.
Publisher shall not, nor shall it permit any third party to, (a) copy, edit, modify, repurpose or transform, to any extent and in any manner whatsoever, any Served Ad or any link contained within a Served Ad, (b) redistribute any Served Ad, (c) block, obscure, remove, minimize or otherwise interfere with the delivery or display of any Served Ad, (d) insert a link into any Served Ad or otherwise cause an end user to be directed to a web page other than the web page that would be accessed by an end user clicking on the Served Ad, (e) frame any Served Ad within, or otherwise display any Served Ad with, any content other than Images or any website or property other than a Publisher Website or otherwise limit the full and complete display of any web page linked to a Served Ad, (f) insert any code, content or other material between a Served Ad and the web page linked to the Served Ad, (g) directly or indirectly generate impressions of any Served Ad through any automated or other means by a single end user, one or more robots or a software program that attempts to mimic the actions of multiple end users, (h) display any Served Ad on any web page or Publisher Website that contains any pornographic, hate-related, violent or illegal content, (i) spider, crawl, index or otherwise collect information obtained from Served Ads or from end users clicking on Served Ads, (j) place any Advertising within or adjacent to any location on a web page of a Publisher Website on which the GumGum Technology has been installed or (k) engage in any conduct (through any Publisher Websites or otherwise) that disparages or tarnishes GumGum’s reputation or goodwill, or that could reasonably be expected to do so.
Publisher acknowledges that any violation of this Section 2 is a material breach of this Agreement and in the event of such violation, without limiting any remedy available to GumGum, GumGum may immediately suspend or terminate GumGum Ad Services and/or this Agreement without allowing Publisher an opportunity to cure the violation.
As between the parties, GumGum retains sole ownership of all right, title and interest, including all intellectual property and proprietary rights recognized anywhere in the world, in and to GumGum Ad Services and all software, materials, tools and technology used in connection with GumGum Ad Services including, but not limited to, the GumGum Technology and GumGum’s ad serving technology (collectively, “GumGum Intellectual Property”). Publisher will not acquire any right, title or interest in or to any GumGum Intellectual Property, except as expressly set forth in this Agreement.
Publisher retains all right, title and interest, including all intellectual property rights and proprietary rights recognized anywhere in the world, in and to Publisher Websites including, without limitation, all content on or available through Publisher Websites.
4. LICENSE GRANT.
Subject to all of the terms and conditions herein, GumGum grants to Publisher a non-exclusive, non-sublicenseable, non-transferable license to install, integrate and execute the GumGum Technology on Publisher Websites and use the GumGum Technology solely for the purpose of receiving GumGum Ad Services.
GumGum reserves all rights in the GumGum Technology not expressly granted in this Agreement.
Publisher shall not, nor permit any third party to, (a) copy, reproduce, modify, adapt, translate, prepare derivative works of, republish, upload, post, transmit, or distribute any GumGum Intellectual Property; (b) reverse assemble, reverse compile, reverse engineer or in any way derive or attempt to derive from the GumGum Technology any source code or the structure, sequence or organization of such code; (c) use the GumGum Technology in connection with any website or content that infringes upon any patent, trademark, trade secret, copyright or other intellectual property or proprietary rights of any party, or which Publisher does not have the right to display, distribute or transmit under any law, contract, or fiduciary relationship; (d) use the GumGum Technology to upload, post, email, or otherwise transmit worms, viruses, or any other computer file, code, or program designed to disrupt, interrupt, limit, or disable any of the functionality of the GumGum Technology, or any hardware, or telecommunications equipment; (e) change the name of any data file included within the GumGum Technology; (f) use the GumGum Technology to interfere with the normal functioning of any servers or computer or communications network; (g) use the GumGum Technology to violate any local, state, national or foreign law or regulation; or (h) sublicense, assign or otherwise transfer the GumGum Technology, this Agreement or the rights under it, whether by operation of law or otherwise, without GumGum’s prior written consent and any such attempted transfer without GumGum’s prior written consent shall be null and void.
Subject to Publisher’s compliance with all of the terms and conditions of this Agreement, Publisher will be entitled to receive a payment based upon GumGum’s measurements of the revenue that GumGum receives from Served Ads.
Publisher acknowledges and agrees that GumGum’s data and measurements relating to Served Ads including, without limitation, the number of impressions and clicks used in calculating amounts payable to Publisher shall be definitive and Publisher may not raise any objection to such data or measurements.
GumGum will send payments to Publisher within sixty (60) days after the last day of each month that Served Ads are placed on Publisher Websites if Publisher’s earned balance is $50 or more.
Notwithstanding the foregoing, GumGum shall have no payment obligation with respect to any Served Ads from which GumGum does not receive any revenue.
GumGum reserves the right to withhold payment of, or charge back Publisher’s account, amounts corresponding to Served Ads (y) for which GumGum has a reasonable belief that it has no payment obligation hereunder due to any of the foregoing circumstances, pending GumGum’s investigation thereof, or any breach of this Agreement by Publisher, or (z) in the event of an advertiser’s default on payment to GumGum for Advertisements contained in such Served Ads. To ensure proper payment, Publisher is solely responsible for providing and maintaining accurate address and other contact information as well as payment information associated with Publisher’s account. Publisher is solely responsible for all federal, state, local or other applicable taxes that might apply in respect of payments received by Publisher and any other charges imposed by any government entity in connection with this Agreement or the performance of GumGum Ad Services (excluding taxes based upon GumGum’s net income).
If Publisher disputes the amount of any payment made under this Agreement, Publisher must notify GumGum in writing of such payment dispute within ninety (90) days following the date such payment was received; failure to timely notify GumGum of a payment dispute shall result in Publisher’s waiver of any claim relating to payable amounts corresponding to the Served Ads for which the disputed payment was made. Amounts payable by GumGum hereunder shall be calculated solely based on data and records maintained by GumGum. No other data, measurements or statistics of any kind shall be accepted by GumGum or have any effect under this Agreement. Publisher’s right to receive payments made under this Agreement may not be transferred or in any manner passed on to any third party unless expressly permitted in this Agreement or authorized in writing by GumGum in advance (such authorization may be given by email).
Publisher acknowledges that all data, information, documents, software or materials relating to GumGum, or its shareholders, affiliates, licensors, licensees or advertisers, that is designated as confidential or that a reasonable person would consider to be confidential including, but not limited to, plans, software, technology, programming, specifications, materials, guidelines, processes, products, designs, pricing, promotions, finances, research, development, know-how and trade secrets and documentation relating to the GumGum Technology, GumGum Ad Services or numbers of impressions or other information relating to Served Ads provided by GumGum (“ Confidential Information”) may be disclosed to Publisher in the course of GumGum’s performance under this Agreement.
Publisher agrees that during and after the term of this Agreement Publisher will not use any Confidential Information other than as necessary to receive GumGum Ad Services in accordance with this Agreement or to the extent necessary to perform Publisher’s obligations under this Agreement and Publisher will not disclose to any other person or entity any such Confidential Information, except as specifically authorized under this Agreement.
7. REPRESENTATIONS AND WARRANTIES.
GumGum and Publisher each represents and warrants to the other that (a) it has the legal authority to enter into this Agreement, (b) it has all necessary rights to grant the rights and licenses, and to perform its obligations, hereunder and (c) its performance of its obligations under this Agreement will not violate any other agreement between such party and any third party.
Publisher represents and warrants to GumGum that (i) it has obtained all necessary rights from third parties (including, without limitation, rights from owners of Images) for GumGum to perform GumGum Ad Services and (ii) none of the Publisher Websites, nor any content displayed thereon, (w) infringes or will infringe any rights of any third party including, without limitation, intellectual property rights, contract rights and rights of privacy and publicity, (x) violates any applicable laws, rules or regulations, (y) is defamatory, fraudulent, misleading or inaccurate or (z) contains any pornographic, violent or hate-based imagery.
8. NO WARRANTY.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE GUMGUM TECHNOLOGY AND THE GUMGUM AD SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND GUMGUM MAKES NO REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE GUMGUM TECHNOLOGY OR THE GUMGUM AD SERVICES INCLUDING, WITHOUT LIMTATION, ANY WARRANTY THAT GUMGUM AD SERVICES WILL (A) PRODUCE A SPECIFIC AMOUNT OR LEVEL OF REVENUES FROM GUMGUM’S SALE OF ADVERTISING INVENTORY, (B) BE TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (C) MEET PUBLISHER’S REQUIREMENTS OR EXPECTATIONS, (D) BE FREE FROM ERRORS OR THAT DEFECTS WILL BE CORRECTED, OR (E) BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. TO THE FULLEST EXTENT ALLOWED BY LAW, GUMGUM EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OR CONDITIONS INCLUDING, WITHOUT LIMITATION, WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. PUBLISHER BEARS THE ENTIRE RISK AS TO THE RESULTS OF GUMGUM AD SERVICES.
9. LIMITATION OF LIABILITY.
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT SHALL GUMGUM, ITS AFFILIATES, DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, AGENTS, LICENSORS, LICENSEES OR ADVERTISERS BE LIABLE UNDER ANY CONTRACT, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR (A) ANY INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES, EVEN IF GUMGUM WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (B) DAMAGES FOR LOSS OF USE, PROFITS, DATA, IMAGES, CONTENT OR OTHER INTANGIBLES, (C) DAMAGES RESULTING FROM VIRUSES, WORMS, TROJAN HORSES, OR OTHER CONTAMINATION OR DESTRUCTIVE PROGRAMS, OR (D) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY. THESE EXCLUSIONS AND LIMITATIONS OF LIABILITY IN THIS SECTION 9 SHALL SURVIVE THE EXPIRATION OR TERMINATION OF THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO PUBLISHER. IN SUCH JURISDICTIONS, THE LIABILITY OF GUMGUM OR ANY OF ITS AFFILIATES, DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, AGENTS, LICENSORS, LICENSEES OR ADVERTISERS SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
10. FORCE MAJEURE.
GumGum shall have no liability for any failure or delay resulting from any governmental action, fire, flood, insurrection, earthquake, power failure, riot, act of terrorism, war, explosion, embargo, strike, labor or material shortage, transportation interruption of any kind, work slowdown or any other event or condition beyond GumGum’s control.
11. APPLICABLE LAW.
This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to its conflicts of laws principles. Except as provided in Section 12 below, the parties hereby consent to the exclusive jurisdiction of the California state and U.S. federal courts located in the County of Los Angeles, California for all disputes arising from or relating to this Agreement and/or GumGum’s performance, or Publisher’s use, of GumGum Ad Services.
12. BINDING ARBITRATION.
12.1 Arbitration Procedures.
You and GumGum agree that, except as provided in Section 12.4 below, all disputes, controversies and claims related to this Agreement (each a “Claim”), shall be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the “JAMS Rules”) and under the terms set forth in this Agreement. In the event of a conflict between the terms set forth in this Section 12 and the JAMS Rules, the terms in this Section 12 will control and prevail.
Except as otherwise set forth in Section 12.4, You may seek any remedies available to You under federal, state or local laws in an arbitration action.
As part of the arbitration, both You and GumGum will have the opportunity for discovery of non-privileged information that is relevant to the Claim.
The arbitrator will provide a written statement of the arbitrator’s decision regarding the Claim, the award given and the arbitrator’s findings and conclusions on which the arbitrator’s decision is based.
The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator.
Except as otherwise provided in this Agreement, (a) You and GumGum may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and (b) the arbitrator’s decision shall be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law.BY AGREEING TO THIS ARBITRATION PROVISION, YOU UNDERSTAND THAT YOU AND GUMGUM WAIVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
The arbitration will be conducted in Los Angeles, California, unless the parties agree to video, phone and/or internet connection appearances.
You and GumGum agree that any arbitration shall be limited to the Claim between GumGum and You individually. YOU AND GUMGUM AGREE THAT (a) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (b) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (c) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER ARBITRATION.
12.4 Exceptions to Arbitration.
You and GumGum agree that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: (a) any Claim seeking to enforce or protect, or concerning the validity of, any of Your or GumGum’s intellectual property rights; and (b) any claim for equitable relief.
In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such court’s jurisdiction in lieu of arbitration.
This Agreement may not be modified except by a written instrument signed by both parties. This Agreement will be binding on and will inure to the benefit of each party’s legal representatives, successors and permitted assigns. Publisher shall not assign or delegate any of its rights or obligations under this Agreement without GumGum’s prior written consent and any unauthorized assignment shall be null and void.
GumGum may assign this Agreement in whole or in part at any time without Publisher’s consent. Unless otherwise provided in this Agreement, all notices provided under this Agreement shall be (a) in writing and effective upon receipt, if delivered by overnight courier service with tracking capabilities, or within three (3) days after deposit in the mails if delivered by certified mail, return receipt requested, postage prepaid and (b) sent to Publisher at the address provided upon registration for GumGum Ad Services or to GumGum at 1207 4th St., Suite 400, Santa Monica, CA 90401, or such other address for GumGum as GumGum may specify in an amendment to this Agreement or for Publisher as Publisher may specify in a notice to GumGum in accordance with this paragraph. Except as otherwise provided in this Agreement, no failure of either party to enforce any of its rights under this Agreement will act as a waiver of such rights. If any portion of any provision of this Agreement is found invalid or unenforceable, that provision shall be enforced to the maximum extent possible and the remaining provisions of this Agreement shall remain in full force and effect.
Headings used in this Agreement are for convenience only and have no legal or contractual significance.