SPORTGENIC® BUYER AGREEMENT

1.    Acceptance of Terms:

This Sportgenic® Buyer Agreement (this “Agreement”) is entered into by and between you, including without limitation, the entity you represent (if any) as set forth in your registered Sportgenic® account (“you” or “Buyer”) and Sportgenic, Inc. a Delaware corporation with offices at One Sansome Street, 15th Floor, San Francisco, California 94104 (“Sportgenic” or “we” or “us”). 

This Agreement supplements the Sportgenic® General Terms of Service (the “General Terms of Service”) and applies to any advertiser (“you”) that submits its advertisements for placement on the Service (as defined in the General Terms of Service).  The advertisements you post may be delivered by Sportgenic to owners of web properties, print media, or any other medium of communication (“Publishers”) who are using the Service.

By submitting your advertisements through the Service, you are agreeing to this Agreement, the General Terms of Service, our Privacy Policy and all other policies or notices posted by us on our websites (collectively, the “Terms of Service”).

If you don’t agree to this Agreement, don’t submit your advertisements to the Service. We can change this Agreement at any time without any notice to you. It is your responsibility to review this Agreement from time to time for any changes as it creates a binding legal agreement between you and Sportgenic equivalent to a document signed by you. If you submit your advertisements to the Service after we’ve changed any of the terms of this Agreement, you are agreeing to all of the changes.

2.    Your Advertisements

“Advertisements” mean any information, advertisements, data, text, software, music, sound, photos, graphics, rich media, videos, messages, tags, interactive features, or any other materials.

“Ad Landing Page” means the web page to which a user is transported after clicking on an Online Advertisement.

“Campaign Start Date” means the first date on which Your Advertisement is scheduled to run on a Publisher Property for a particular Order.

“Offline Advertisements” mean Advertisements to be delivered through any medium other than the Internet, including, but not limited to, television, radio, cinema, magazines, newspapers, video games, billboards, and event and athlete sponsorships.
 
“Online Advertisements” mean Advertisements to be displayed through the Internet, including, without limitation, banners, buttons, boxes, towers, skyscrapers and any other standard IAB Units or non-standard units, text ads, brand wraps, skins, podcast ads, video ads, mobile ads and any other customized online advertisements.

“Order” means the insertion order you place through the Service (which may be electronic as provided by the functionality of the Service) that specifies the size and format of your Advertisements, the dates on which Your Advertisements are to be run, the rate(s) that you will pay for the delivery of your Advertisements on Publisher Properties, and any other information necessary to facilitate the delivery of your Advertisements.

“Post” or “post” means posting, uploading, sharing, submitting, making available, or otherwise providing Your Advertisements in any manner in connection with the Service.

“Publisher Property” or “Publisher Properties” means any media property of a Publisher, including, without limitation any websites, television or radio programs, films, magazines, newspapers, video games, billboards, or other forms of communication.

“Your Advertisements” means any Advertisement posted to the Service using your account or which is transmitted via the Sportgenic network, as well as any URLs and any content on Ad Landing Pages.

You are solely responsible for any Advertisements posted to the Service using your account, and the consequences of posting or publishing it.  You must submit Your Advertisements in accordance with the fulfillment instructions and specifications set forth in the Order.  Furthermore, your Advertisements must conform to Sportgenic's then existing advertising criteria and specifications, including any applicable policies, content limitations, technical specifications or other guidelines.  We reserve the right to reject any of Your Advertisements that do not conform to the instructions and specifications set forth in the Order, that do not conform to our (or a Publisher’s) advertising criteria and specifications, or that violate the restrictions set forth in Section 3 (Restrictions on Your Advertisements and Your Conduct) below, as determined in our sole discretion.  If we reject any of Your Advertisements pursuant to this Section 2, we may either (i) provide you with notice of rejection and an opportunity to cure whatever deficiency Sportgenic has determined exists with respect to Your Advertisements, or (ii) cancel the Order in its entirety.

3.    Restrictions on Your Advertisements and Your Conduct

In addition to the restrictions specified in the General Terms of Service you may not, and you may not authorize, enable or engage a third party to, do any of the following:

(i)    post Advertisements that you don’t have the right to submit, unless you have the owner’s permission; this includes material covered by someone else’s copyright, patent, trade secret, privacy, publicity, or any other proprietary right;
(ii)    forge headers or manipulate other identifiers in order to disguise the origin of any of Advertisements you submit or the destination of the Ad Landing Page;
(iii)    post any Advertisement that contains lies, falsehoods or misrepresentations that could damage us or anyone else;
(iv)    post Advertisements that are illegal, obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law, or is otherwise inappropriate;
(v)    post Advertisements that violates child pornography laws, child sexual exploitation laws, or any other laws protecting children; or
(vi)    submit Advertisements which disparages us or our partners, vendor or affiliates.

We have the sole right, but not necessarily the obligation, to delete at any time any of Your Advertisements that violate these rules or that we believe to be inappropriate for any reason. You are not entitled to any refund, credit, or payment if we delete any of Your Advertisements which we believe violate this Agreement or the Terms of Service.

4.    Fees and Payment

Use of the Service may require payment of certain fees. Those fees will be as described on the Service, or as agreed in an Order or other separate written agreement, and may change from time to time. You acknowledge that in certain circumstances you may be requested to pre-pay for placement of Your Advertisements on the Service at a per-impression, per-click or other rate which is determined at the time you fund your account, and that the actual cost to you may vary based on the operation of the Service. Sportgenic also cannot guarantee how long any pre-payment you make will last, as this depends on the level of advertising inventory on Publisher Properties and your Order. Thus, funds in your account may be spent sooner than you anticipated. Do not fund your account unless you are willing to spend that amount.

If you are past due on any payment or payment cannot be collected, Sportgenic reserves the right not to display or to cease displaying Your Advertisements on the Service, however this does not relieve your obligation to pay amounts due.

5.    Method of Payment

When you supply us with a payment method such as a credit card or bank account (“Payment Method”), you authorize us to bill your Payment Method for any and all charges and fees, including recurring payments. You also authorize us to exchange information related to the transaction with the company issuing the Payment Method. The terms of your Payment Method are determined by an agreement(s) between you and your financial institution, not us and you. The types of Payment Methods that we accept and the timing of the billing of the fees are as described on the Service.

We may change the terms under which we will accept Payment Methods from time to time, but will provide you the opportunity to discontinue using that Payment Method prior to the change. However, if you do not discontinue use, you reaffirm the new terms and will be bound by them.

If we permit storage of Payment Method information, the following applies:

A. You agree to keep your Payment Method information on file with us current, and also authorize us to update your Payment Method information with data we obtain from your financial institution, the issuer of your credit card or from MasterCard, Visa or American Express.

B. You authorize us to retain your Payment Method information until such time as you revoke this authorization in accordance with procedures prescribed by us. Any revocation by you of this authorization shall become effective when all charges and fees associated with your use of the Service have been fully satisfied. Your revocation of authorization has no effect on your liability for charges and fees that you have incurred in connection with the Service prior to such revocation.

6.    Reports; Under-Delivery 

 Promptly after the Campaign Start Date, Sportgenic will make available to you reports that (i) confirm that Your Advertisements have begun to run in accordance with the terms of the applicable Order, and (ii) for Online Advertisements, detail fulfillment of the terms of the applicable Order based on Sportgenic’s proprietary ad serving and tracking technology (the “Reports”).  You accept the availability of all such Reports from the Service as Sportgenic's fulfillment of its obligations pursuant to this Section 6.
 
With respect to Online Advertisements, Sportgenic will use commercially reasonable efforts to monitor the delivery of Your Advertisements in accordance with the terms of the Order and will notify you as soon as reasonably practicable via the Service or otherwise in writing, at its discretion, if Sportgenic believes that an Under-Delivery is likely or has occurred.  Similarly, you may notify Sportgenic if you believe an Under-Delivery is occurring. 
 
Notwithstanding the foregoing, you understand that fulfillment of Orders is performed by Publishers and not directly by Sportgenic.  We do not control the operation of the Publisher Properties and cannot guarantee performance by Publishers.

In the event of an Under-Delivery, we will work with the relevant Publisher in good faith to correct the Under-Delivery, if possible.  If correction is not possible, as our sole liability, and your exclusive remedy for any Under-Delivery, upon our receipt of a refund from the applicable Publisher, you will receive a credit to your account that you can apply to future purchases.

“Under-Delivery” means an occurrence when the amount of inventory actually delivered pursuant to an Order is less than seventy-five (75%) of the inventory that should be delivered during the Order on a pro rata basis. For example, if 10,000,000 ad impressions of an Online Advertisement are to be delivered over a 10 day period, and through day 7 (when 7,000,000 ad impressions should have been delivered on your behalf), less than 5,250,000 ad impressions (75% of 7,000,000) have actually been delivered on your behalf, an Under-Delivery will be deemed to have occurred.

7.    Advertising Agencies and other Representatives

If you are an advertising agency, reseller, outsourced marketer or other entity representing an Advertiser (“Representative”), this section applies, and in such case, “you” and “your” mean Representative, any affiliates of Representative who execute an advertising campaign with Sportgenic or submit Advertisements to the Service, together with Advertisers. “Advertiser” means an entity which is or will be enrolled in the Service by you. As a Representative, “Your Advertisement” refers to the advertisements you post on the Service.

You represent, warrant, and covenant that:

(i)    you are the authorized agent of the Advertiser and you have the legal authority to enter into this Agreement and the Terms of Service on behalf of the Advertiser, make all decisions, and take all actions relating to the Advertiser’s accounts,
(ii)    by executing an Order, submitting Advertisements to the Service or otherwise enrolling an Advertiser in the Service, the Advertiser is also entering into this Agreement and the Terms of Service,
(iii)    you will not, without Sportgenic’s prior written consent: (a) make any representation, guarantee, condition, or warranty concerning the Service, or that you are an affiliate or partner of Sportgenic, (b) make any commitments (for example, guarantees as to placement of ads) to an Advertiser or potential Advertiser, (c) negotiate any terms or conditions related to the Service which are inconsistent with this Agreement or the Terms of Service, or (d) engage in any telesales or telemarketing in connection with the Service, and
(iv)    you will perform your duties pursuant to this Agreement and the Terms of Service in a professional manner consistent with the requirements established by us.

Upon our request, you will immediately deliver to us a copy of each agreement that designates you as the Advertiser’s agent and authorizes you to act on the Advertiser’s behalf in connection with the Service. If your relationship with an Advertiser terminates, you agrees that the Advertiser may continue to use the Service and obtain information related to Advertisements run on its behalf, including account and performance history, and that you shall no longer have access for such Advertiser’s account.

Without limiting any other provision of the Agreement, Representative and each Advertiser shall be jointly and severally liable for all payment obligations under this Agreement and the Terms of Service. You acknowledge that we may directly contact any Advertiser represented by you, including if we have not received payment for such Advertiser’s account within 30 days from the date of the applicable payment due date.

8.    Fraudulent Activity

You acknowledge that while Sportgenic will take reasonable efforts to credit your account if it discovers any fraudulent activity (such as click-fraud), Sportgenic is not able to determine with certainty in all cases whether fraud has occurred. If you suspect that Your Advertisement has been subject to any such fraudulent activity, please notify Sportgenic. However, Sportgenic shall not be liable for any fraudulent activity of any third party and you are not entitled to refunds, credits, or make-goods except as determined in Sportgenic’s sole discretion. You agree to release Sporgenic from any liability related to fraudulent activity of third parties.

9.    Communications with Publishers

You agree that you will direct any questions related to Publishers to Sportgenic, and not contact Publishers directly.

10.    Intellectual Property Rights in Your Advertisements

If you post Advertisements, you are making a guarantee to us that you either own all the Advertisements you are posting, or you have the right to post the Advertisements. Furthermore, you are guaranteeing that you have the right to allow us to make Your Advertisements available for others to view and use as part of the Service without requiring that any such use be subject to additional obligations or terms. If you do not have these rights, do not post the Advertisements. By posting Your Advertisement, you do not lose any ownership rights you may have to it. However, you do grant us a worldwide, non-exclusive, royalty-free, fully-paid, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform Your Advertisements in connection with the Service and our business, in any media formats or in tangible form and through any media channels now known or hereinafter developed. You also grant each user of the Service (including Publishers) a non-exclusive royalty-free, fully-paid, sublicenseable and transferable license to access Your Advertisements through the Service, and to use, reproduce, distribute, prepare derivative works of, display and perform Your Advertisements for the purposes of displaying Your Advertisements.

11.    Use of Your Name and Logo

You agree that we may use your name and logo(s) in the Service and in Sportgenic’s marketing and other materials for the purposes of promoting the Service and identifying you as a user of the Service.

12.    No Resale or Syndication

We are making the Service available to you for your use only. You may not (and you agree not to) use, copy, distribute, transmit, broadcast, sell, or do anything else with the Service for any other purpose.

13.    Advertisements You Share become Public

You understand that once you post Your Advertisements, Your Advertisements may become public. We are not responsible for keeping any of Your Advertisements confidential. So, if you don’t want the whole world to see it, don’t post it on the Service.

14.    We Are Not Responsible for Your Advertisements or for Publisher Properties

We do not endorse any Advertisements or Publisher Properties, or support any views, opinions, recommendations, or advice that may be in user submissions or on such sites. Advertisements and content on Publisher Properties come from a variety of sources, and we make no promises about the reliability of any source or the accuracy, usefulness, safety, or intellectual property rights of any such content. You may be offended by Advertisements that you see on the Service or the Publisher Properties on which they appear. You may find some of it to be inaccurate, offensive, indecent, or objectionable. However, you agree not to hold us responsible in any way for your use of our Service, including your exposure to Advertisements or Publisher Properties.

15.    Proprietary Rights

Sportgenic and its suppliers retain all right, title and interest (including all copyright, trade secret, patent and other rights) in and to the Service and content which is included in the Service (other than Your Advertisements).

You agree not to disable, interfere, or try to get around any of the features of the Service related to security, preventing or restricting use or copying of any Advertisements, or enforcing the limits on the use of the Service or the Advertisements on the Service.

16.    Sportgenic Confidential Information. 

Any code, documentation, technical information, or non-public information provided to you by Sportgenic (or its agents), performance information relating to the Service, payment amounts, and the terms of this Agreement shall be deemed “Sportgenic Confidential Information” without any marking or further designation.  Except as expressly authorized herein, you will hold in confidence and not use or disclose any Sportgenic Confidential Information. You acknowledge that disclosure of Sportgenic Confidential Information would cause substantial harm to Sportgenic that could not be remedied by the payment of damages alone and therefore that upon any such disclosure by you, Sportgenic shall be entitled to appropriate equitable relief in addition to whatever remedies it might have at law.

17.    Rights in Data

You understand that in the operation of the Service, Sportgenic will collect information about users of the Sportgenic network. This includes users which click on or are presented with Your Advertisements and who may be directed to the URLs you designate. You acknowledge that Sportgenic and Publishers may use this data for any purpose, including for improving the Service, without compensation to you.

18.    Enforcement of Copyrights

We respect the intellectual property rights of others. You may not use our Service to infringe anyone else’s copyright or other intellectual property right. If we find out that you are infringing, we will remove Your Advertisements without compensation, refund, or credit to you. We do not have to give you notice that we are removing Your Advertisements. We may also terminate your account if we decide that you are a repeat infringer. We consider a repeat infringer to be a user who (or user account which) has been notified of infringing activity more than twice or who has had Your Advertisements removed from our Service more than twice.

19.    Indemnity

You agree to defend, indemnify and hold harmless Publishers, Sportgenic and each of their affiliates, suppliers, partners, officers, agents, and employees from and against any claim, demand, losses, damages or expenses (including reasonable attorney's fees) arising from any of Your Advertisements, your use of the Service, your connection to the Service, your violation of this Agreement or the Terms of Service, or your violation of any rights of any third-party. Your indemnification obligation will survive the termination of this Agreement, the Terms of Service and your use of the Service.

20.    Termination.

Either party may terminate this Agreement (including all related Orders) if the other party: (a) fails to cure any material breach of this Agreement, an Order, or the Terms of Service within thirty (30) days after written notice of such breach; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within sixty (60) days thereafter).  In addition, with respect to specific Orders, either party may terminate such an Order if the other party fails to cure any material breach of that Order, this Agreement or the Terms of Service within ten (10) days after written notice of such breach. Termination is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.