SPORTGENIC® SELLER AGREEMENT
1. Acceptance of Terms:
This Sportgenic Seller 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 “Seller”) 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 publisher, media partner or other sports marketer (“you”) that makes its advertising inventory or other assets available through the Service (as defined in the General Terms of Service). Sportgenic shall sell your inventory or other assets to advertisers and other customers (“Advertisers”) through the Service and share the resulting revenue with you.
By listing your inventory and other assets on 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 list your inventory or other assets on 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 list your inventory or other assets on the Service after we’ve changed any of the terms of this Agreement, you are agreeing to all of the changes.
2. Definitions.
“Advertisements” mean any advertisements, data, text, software, music, sound, photos, graphics, rich media, videos, messages, tags, interactive features, or any other materials.
“Campaign Start Date” means the first date on which a particular Advertisement is scheduled to run on Your Properties for a particular Order.
“Digital Advertisements” mean any Advertisements designated in the Service as “Digital” or “Online”, including, without limitation, banners, video ads, page takeovers, podcasts, mobile ads, email newsletters, buttons, boxes, towers, skyscrapers and any other standard IAB Units or non-standard units, text ads, brand wraps, skins, other customized online advertisements, and any Advertisements to be displayed through the Internet.
“Impression” means each instance that a single Digital Advertisement is served for display on a Web page, as measured by Sportgenic or its third party ad server.
“Non-Digital Advertisements” mean any Advertisements that are not Digital Advertisements, including, without limitation, Advertisements to be delivered via print media (such as magazines or newspapers), television, radio, cinema, video games or billboards.
“Order” means the insertion order placed by Sportgenic to you that specifies the size and format of the Advertisements to be run on Your Properties and the dates on which the Advertisements are to be run.
“Revenue Share” means 50% (or such other percent as you and Sportgenic may otherwise agree to in writing or otherwise through the Service) of the revenue actually collected by Sportgenic from Advertisements displayed on Your Properties, less any fees paid by Sportgenic to third parties with respect to such revenue.
“Sponsorships” mean any sponsorships that you make available through the Service, including, without limitation, athlete sponsorships, player appearances, tickets, naming rights and corporate hospitality events.
“Standard IAB Units” means those IAB units supported by Sportgenic, which currently are 728x90, 300x250, 160x600 and 120x600 ad units.
“Term” means the period of time this Agreement is in effect, as set forth in Section 15 (Term and Termination).
“Your Inventory” means any media or marketing asset that you make available for sale through the Service, including but not limited to: (a) advertising space available on Your Properties in which an Advertisement may be displayed and (b) Sponsorships.
“Your Property” or “Your Properties” means any media property that you own, operate, or represent, including those through which Advertisements may be shown, including, without limitation your websites, television or radio programs, films, magazines, newspapers, video games, billboards, other forms of communication, and Sponsorships. Your Properties specifically exclude Advertisements and materials provided by Sportgenic, if any.
3. Availability of Your Inventory.
If you list or post Your Inventory to the Service, it must be available for purchase by Advertisers until you remove such listings, which you may do at any time in your discretion. Notwithstanding the foregoing, you may not unlist, remove or make unavailable any of Your Inventory after they have become subject to an Order. We encourage you to refer all Advertiser inquiries to Sportgenic or to the Service through Connect™ (as further described below), which allows users of your websites the ability to view Your Inventory on your websites using a Sportgenic-powered widget or other technology.
You will make Your Inventory available to Sportgenic through the Service consistent with Sportgenic’s then existing advertising formats and placements, as described in the Sportgenic Advertising Guidelines document, as may be updated by Sportgenic from time to time.
4. Implementing the Service.
Within one (1) business day of receiving an Order, you will implement beaconing and tagging on Your Properties (as applicable) as specified according to Sportgenic’s best practices in order to support serving of Digital Advertisements.
Subject to the terms and conditions of this Agreement, during the Term, Sportgenic grants you a non-transferable, non-sublicensable, non-exclusive license (a) to place any ad tags and beacons provided by Sportgenic on the websites included in Your Properties (or on the ad-serving technology associated with Your Properties) solely for the purpose of making ad calls to the Service, and (b) to display the Advertisements delivered by Sportgenic on Your Properties.
5. Removal of Objectionable Advertisements.
You acknowledge that we are not responsible for the content of any Advertisements. However, you have the right to reject any Advertisements that you believe to be directly competitive to your core business, or to be libelous, pornographic, obscene, defamatory or otherwise in violation of local, state or federal law. Sportgenic shall remove any objectionable Digital Advertisements as soon as commercially feasible. With respect to any Non-Digital Advertisement that you intend to reject pursuant to this section, you may do so only if you have not previously reviewed the creative prior to the placement of the Advertisement, and you must provide us with written notice of your objection and a reasonably opportunity to correct the offending material.
6. Your Responsibility for the Terms of Use of Your Properties.
You must ensure that the privacy policy and any terms related to the use of Your Properties (including any websites included in Your Properties) disclose to users and obtain all rights and permissions necessary for (a) the serving of Digital Advertisements and (b) the collection, transmission, and sharing of data as described in this Agreement (including without limitation the gathering of information from users and use of that information to target Advertisements). Except as required by law and with advance notice to Sportgenic, you will not revise your privacy policies or other applicable data sharing terms in any manner inconsistent with the foregoing.
7. Reporting for Digital Advertisements.
Digital Advertisements served through the Service shall be tracked solely by Sportgenic through Sportgenic’s proprietary ad serving and tracking technology. With respect to these Digital Advertisements, on a monthly basis on or before the 15th of every month, Sportgenic shall report to you the number of monthly Impressions delivered under this Agreement on Your Properties that are websites in the prior calendar month and the Revenue Share. If the Service includes an on-line reporting interface, (a) we may make available reports required under this Section via that interface in lieu of sending the report to you and (b) you may use such interface solely for your own benefit, (c) you shall require that all users of the reporting interface keep user ID and password information strictly confidential and not share such information with any unauthorized person, and (d) you shall be solely responsible for any and all actions taken using your accounts and passwords.
8. Reporting for Non-Digital Advertisements and Sponsorships.
With respect to Non-Digital Advertisements and Sponsorships, within one (1) business day after the Campaign Start Date, you must provide to Sportgenic a report confirming that Advertisements have begun to run on Your Properties (or that the Sponsorship activity has occurred) in accordance with the terms of the applicable Order. You must also provide, as applicable, ongoing monthly reports of delivery within two (2) business days after the end of each month. Sportgenic may require you to enter your reports into the Service.
9. Payment.
Subject to the minimum payment requirements set forth below, Sportgenic will pay you the applicable Revenue Share based upon Sportgenic’s actual receipt of payment for (a) Advertisements displayed on Your Properties, (b) Sponsorships sold by Sportgenic, and (c) any other of Your Inventory sold through the Service. Payments for Digital Advertisements shall be based solely on Sportgenic’s ad-serving records. Payments for Non-Digital Advertisements and Sponsorships shall be based on the terms set forth in the applicable Order, subject to verification that the Non-Digital Advertisements have run (or that the applicable Sponsorship activity has occurred) as set forth in the Order. Sportgenic is not obligated to make any Revenue Share payments for Digital Advertisements with respect to any Impressions which Sportgenic reasonably believes to be associated with a breach of this Agreement (such as generated using robots, displayed on pages with prohibited content, or the like). All payments will be made in US Dollars, and you are responsible for payment of all taxes related to payments made under this Agreement except for taxes on Sportgenic’s net income.
If your Revenue Share for any given month is less than one hundred dollars ($100), we will not make any Revenue Share payments to you in that month. Rather, we will roll such amount over to the following payment period(s) until the accrued Revenue Share is at least one hundred dollars (US$100). Once your account has reached the minimum payment amount of $100, you will be eligible to receive payment. Payments are issued within 30 days after the end of each month.
You must submit any dispute regarding a payment from Sportgenic in writing within thirty (30) days of the posting date of such payment. Otherwise, you waive your right to dispute payment. If we pay you by check, you must collect such payment within one hundred and eighty days of the date of the check. Otherwise, the check will be null and void.
10. Restrictions.
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) the use, display, syndication, sublicensing or delivery of Advertisements anywhere other than on Your Properties;
(ii) the use, display, syndication, sublicensing or delivery of Digital Advertisements in pop-over or pop-under windows;
(iii) any act which may interrupt ad calls;
(iv) the display of a new Digital Advertisement without the user navigating to a new web page;
(v) the display of Digital Advertisements on any error pages;
(vi) the redirection of any user from a web page after clicking on any Digital Advertisement (including any interstitial pages);
(vii) modification or alteration (including without limitation resizing or cropping) of Advertisements;
(viii) placement of any other item on a web page (including a pop-up or dynamic page element) that may obscure a Digital Advertisement or prevent or inhibit its display;
(ix) the generation of fraudulent Impressions or fraudulent clicks on any Digital Advertisement (whether through manual clicks, the use of robots, the use of optimization software, or other tools); or
(x) the artificial inflation of click-throughs or Impressions (including without limitation offering incentives for the purpose of increasing page views or clicks).
11. Ownership of the Service and the Advertisements.
Notwithstanding anything to the contrary contained in this Agreement, and except for the limited license we expressly grant you in this Agreement, we and our Advertisers have and will retain all rights, title and interest in and to the Advertisements and the Service and all copies, modifications and derivative works thereof. You acknowledge that you are obtaining only a limited license right to display the Advertisements and that irrespective of any use of the words “purchase”, “sale” or like terms hereunder no ownership rights are being conveyed to you under this Agreement or otherwise.
12. User Data.
As between Sportgenic and you, each of us owns any information that we each derive about or from users. For the avoidance of doubt, to the extent that we collect any information in the delivery of Advertisements hereunder (such as via ad tags provided to you under the Agreement), such data shall be owned by Sportgenic. We may use data collected under this Agreement to (a) improve, enhance and implement Sportgenic’s targeting, optimization and monetization; and (b) target advertising on Your Properties and through the Service.
13. Your Warranties to Sportgenic.
You represent and warrant that (a) you are the owner of Your Properties and have the right to permit Sportgenic to place Advertisements on Your Properties, and that you have not and will not enter into any agreement inconsistent with the terms of this Agreement; (b) you have the right to sell Your Inventory and to permit Sportgenic to do the same; (c) none of Your Properties, your Sponsorships or any material displayed on Your Properties breach or have breached any duty toward, or rights of, any person or entity including, without limitation, rights of intellectual property, publicity or privacy, or rights or duties under consumer protection, product liability, tort, or contract theories; and (d) Your Properties and any material displayed on Your Properties do not contain any material which is defamatory, pornographic, obscene, promote illegal activity, or contain hate speech.
14. Indemnification.
You, at your own expense, will indemnify, defend and hold harmless Sportgenic, and its employees, officers, directors, representatives and agents, and the respective successors and assigns of each of the foregoing (“Indemnified Parties”), from and against any loss, liability, judgment, penalty, damage or expense (including reasonable expenses of investigation and reasonable attorneys’ fees and costs) incurred or suffered by any Indemnified Party resulting from, arising out of, or in connection with any third-party claim, suit, action, or other proceeding brought against any Indemnified Party based on, arising from or relating to your breach of Section 6 (Your Responsibility for the Terms of Use of Your Properties), 10 (Restrictions) or 13 (Your Warranties to Sportgenic). Your indemnification obligation will survive the termination of this Agreement and your use of the Service.
15. Term.
This Agreement will be effective upon the earlier of (i) the date you first post Your Inventory to the Service, or (ii) the date this Agreement is signed by both your authorized representative and us, and shall continue for as long as you have a registered account with the Service, unless terminated earlier pursuant to the terms described below.
16. 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 or an Order 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 within thirty (30) 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.
Upon termination or expiration of this Agreement, you must (a) remove any and all Sportgenic ad tags and beacons from all of Your Properties (or ad-service technology associated with Your Properties)(as applicable) as soon as commercially practicable, but in no event longer than two (2) business days, and (b) if the termination is due to your breach, you forfeit any Revenue Share not yet disbursed to you under this Agreement. You acknowledge that Sportgenic may incur server costs or other fees for any ad tags and beacons not removed from Your Properties, and you agree to reimburse us for any fees incurred by us as a result of your failure to remove these ad tags and beacons.
The following sections of this Agreement will survive any termination or expiration of the Agreement: Sections 2 (Definitions), 11 (Ownership of the Service and the Advertisements), 12 (User Data), 13 (Your Warranties to Sportgenic) and 14 (Indemnification).
17. Your Content
If you post or submit any logos, images, or other material to us or to the Service (“Your Content”), you are making a guarantee to us that you either own all Your Content, or you have the right to post or submit Your Content. Furthermore, you are guaranteeing that you have the right to allow us to make Your Content available for others to view 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 Your Content. By posting Your Content, 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 Content 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.
18. Sportgenic Confidential Information.
The Service is an open, publicly accessible, environment. As such, your name, Your Properties, your Sponsorships, and Your Inventory will be viewable by Advertisers and other third party users of the Service. Consequently, none of this information will be considered your confidential information, and Sportgenic has no obligation to keep this information confidential. So, if you don’t want the whole world to see this information, don’t make Your Inventory available on the Service.
Any code, documentation, technical information or non-public information provided by Sportgenic (or its agents) to you, 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.
19. Communications with Advertisers.
You agree that you will communicate only with Sportgenic, and not any Advertiser, with respect to Your Inventory, the Service or any Advertisements. Sportgenic will work with you in good faith to resolve any related issues. This Section shall not apply to the extent that you have a separate and independent pre-existing relationship with an Advertiser outside the Service.
20. Traffic Assignment.
If applicable, you agree to sign a traffic assignment request or custom entity authorization that assigns traffic of any websites included in Your Properties to Sportgenic during the Term, solely for the purpose of the syndicated audience measurement reporting of comScore and NetRatings. You agree to otherwise abide by any other requirements of comScore and NetRatings. You agree not to assign your traffic to any other entity or third party during the Term. Sportgenic may withhold all payments due you until you have signed the traffic assignment request or custom entity authorization.
21. Connect™
The Service includes functionality that allows users of your websites (“Your Users”) the ability to view Your Inventory on your websites using a Sportgenic-powered widget or other technology. This functionality is called Connect and is further described in the applicable Sportgenic documentation. Your use of Connect is strictly optional; you may choose to use it (or not to use it) at your discretion. Your Users who access or use the Service via Connect enter into their own independent relationship with Sportgenic and are subject to the Terms of Service.