Terms of Service
Last updated: January 13, 2012
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.
“Advertisements” means advertising, which may include, among other things, third party text and video feeds, links to websites, offers, and downloads of third party software applications.
“Advertising Services” means the all of the advertising services made available by GumGum in connection with a content publisher’s authorized use of the GumGum Technology.
“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 software code that allows GumGum to track the display of Images on Publisher Websites.
“Images” means photographic images.
“Publisher Websites” means websites owned and/or operated by Publisher.
“Served Ads” means Advertisements, including interactive overlays and underlays, placed within or adjacent to Images displayed on Publisher Websites in connection with GumGum’s performance of GumGum Ad Services.
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 and those Advertising Services that Publisher elects not to receive. 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 section. 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 Advertisements within Images displayed on such Publisher Websites, which may include, serving third party text and video feeds, serving links to websites, offers and downloads of third party software applications and installing pixels on Publisher Websites in connection with its performance of GumGum Ad Services. 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 as updated from time to time. 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 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 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. This sentence and the following sections of this Agreement shall survive termination of this Agreement: Article I, Sections 1, 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 ($1000).
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.
2. PUBLISHER RESTRICTIONS.
Publisher shall not, nor 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 user, one or more robots or a software program that attempts to mimic the actions of multiple 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 Image displayed on 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 4 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 or, 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.
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 GumGum Ad Services or numbers of impressions or other information relating to Served Ads provided by GumGum (“Confidential Information”) may be disclosed to Publisher during the course of 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 that (a) 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.
GUMGUM AD SERVICES ARE PROVIDED ON AN “AS IS” BASIS AND GUMGUM MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO 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 OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. PUBLISHER BEARS THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF GUMGUM AD SERVICES, THE CONTENT OF SERVED ADS, THE CONTENT AND PUBLISHER WEBSITES.
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.
In the event any dispute or claim arises out of or relating to this Agreement, Publisher and GumGum will attempt in good faith to negotiate a written resolution of the matter. If the dispute remains unresolved for forty-five (45) days after notification (via certified mail or personal delivery) that a dispute exists, the parties shall join in mediation services in Los Angeles, California with a mutually agreed mediator in an attempt to resolve the dispute. Should Publisher file any arbitration claims, or any administrative or legal actions without first having attempted to resolve the matter by mediation, then Publisher agrees that it will not be entitled to recover attorney’s fees, even if it would otherwise be entitled to them.
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. GumGum may assign this Agreement in whole or in part at any time without Publisher’s consent. This Agreement is personal to Publisher and Publisher may not assign this Agreement or delegate any of its obligations hereunder, except in the event of a third party’s acquisition of all or substantially all of Publisher’s stock, assets or business to which this Agreement pertains, provided that Publisher provides GumGum with not less than thirty (30) days prior written notice of such acquisition. Any purported assignment by Publisher, other than as expressly permitted hereunder, shall be null and void and a material breach of this Agreement. 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 Service or to GumGum at the address set forth above, or such other address for a party as such party may specify in a notice to the other party. 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.