TRAFFIQ Publisher Agreement

This TRAFFIQ Publisher 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 Account (hereinafter “Publisher”) and TRAFFIQ, Inc., a Delaware corporation with a principal address of 462 Seventh Avenue, 21st Floor, New York, NY 10018 (“TRAFFIQ”). Publisher and TRAFFIQ together may collectively be referred to herein as the “Parties” and each individually as a “Party”. This Agreement sets forth the terms and conditions pursuant to which the Parties will conduct business through the TRAFFIQ Marketplace (as defined herein).

1. Definitions

Capitalized terms used throughout this Agreement that are not otherwise defined herein shall have the meanings set forth in Appendix A attached hereto.

2. Offer Submission; Acceptance; Material Changes; Technical Specifications

  1. From time to time, Publisher may submit an Offer through the TRAFFIQ Marketplace in response to an RFP. By submitting an Offer, Publisher is agreeing (i) to make such Inventory available upon the terms and conditions of the Offer and this Agreement if such Offer is Accepted and (ii) to otherwise be bound by the terms of this Agreement.
  2. Upon receipt of an Acceptance for an Offer, Publisher agrees to provide TRAFFIQ with the Inventory specified in the Offer, subject to Publisher’s (i) review rights with respect to the Ad Materials set forth in Section 3 hereof, (ii) suspension rights set forth in Section 5(b) hereof, and (iii) cancellation rights set forth in Section 6(b) hereof.
  3. Delivery of the Inventory will comply with the specifications set forth in the Offer. Publisher will provide TRAFFIQ notice as soon as possible and in no case less than two (2) business days prior to the commencement of delivery of the Inventory of any material changes to the Site upon which any part of the Ad Materials are to appear that would change the target audience or significantly affect the size or placement of any part of the Ad Materials compared to that which was set forth in the Offer. Unless otherwise stated in the Offer, the Inventory will be delivered by Publisher on a reasonably balanced delivery schedule.
  4. Each Offer submitted by Publisher on the TRAFFIQ Marketplace will either have or provide reference to the applicable technical specifications in order to commence delivery of the Inventory referenced in such Offer. Notwithstanding the foregoing, to the extent there are additional technical specifications required, Publisher will submit or otherwise make such additional technical specifications electronically accessible to TRAFFIQ within two (2) business days after Acceptance by a Participating Advertiser and in no instance less than two (2) business days prior to the Order Commencement Date.

3. Ad Materials

  1. Upon Publisher’s receipt of an Acceptance, TRAFFIQ will submit the Ad Materials to be associated with the Order to the Publisher no later than two (2) business days prior to the Order Commencement Date.
  2. All Ad Materials submitted by TRAFFIQ will generally conform to TRAFFIQ’s then existing advertising criteria and specifications, including any applicable Policies, content limitations, technical specifications and anti-competitive guidelines, as well as those specified by Publisher in the Offer. Where the Ad Materials submitted by TRAFFIQ do not conform to the requirements of this Section 3(b), Publisher will use commercially reasonable efforts to notify TRAFFIQ within two (2) business days of its receipt of such Ad Materials.
  3. Publisher reserves the right to reject any Ad Materials that do not conform to the requirements of Section 3(b), as determined in its sole discretion, or that do not comply with any applicable law, regulation or other judicial or administrative order, as determined in its sole discretion. In addition, Publisher reserves the right to reject any Ad Materials that are or may tend to bring disparagement, ridicule, or scorn upon Publisher or any of its Affiliates. If Publisher rejects any Ad Materials pursuant to this Section 3(c), Publisher may either (i) provide TRAFFIQ with notice of rejection and an opportunity of up to two (2) business days to cure whatever deficiency Publisher has determined exists with respect to the Ad Materials, or (ii) cancel the Order in its entirety.
  4. Publisher will not edit or modify any Ad Materials in any way, including without limitation, resizing the Ad Materials, without TRAFFIQ’s approval. Publisher will use all such Ad Materials in strict compliance with this Agreement.

4. Reports; Third Party Ad Serving; Under-Delivery

  1. Within two (2) days after the Order Commencement Date, TRAFFIQ will make available to Publisher, via the TRAFFIQ Publisher Account, reports that (i) confirm that Inventory has begun delivery in accordance with the terms of the Order, and (ii) detail fulfillment of the terms of the Order on at least a daily basis, based on TRAFFIQ’s proprietary ad serving, tracking and reporting methods. Publisher accepts the availability of all such reports from the TRAFFIQ Publisher Account as TRAFFIQ’s fulfillment of its obligations pursuant to this Section 4.
  2. Publisher may utilize an Ad Server for purposes of independently tracking the delivery of the Inventory in accordance with the terms of the Order. Publisher will provide TRAFFIQ with the specifications for its Ad Server no later than two (2) business days prior to the Order Commencement Date. Publisher may not substitute its Ad Server after its submission of its specifications pursuant to this Section 4(b). The Parties agree to work in good faith to integrate appropriate TRAFFIQ ad tags to support set-up, serving, tracking and reporting for the Order prior to the Order Commencement Date. The Parties further agree to give reciprocal access to relevant and non-proprietary statistics from each other’s Ad Server, or if such is not available, to provide regular activity reports to each other on an Order by Order basis.
  3. TRAFFIQ will monitor the delivery of the Inventory in accordance with the terms of the Order and will notify Publisher as soon as reasonably practicable via the TRAFFIQ Publisher Account or in writing, at its discretion, if TRAFFIQ believes that an Under-Delivery (please see Section 1 for definition) is likely or has occurred. Similarly, Publisher may notify TRAFFIQ if it believes an Under-Delivery is occurring based on information derived from its Ad Server, if any. Notwithstanding the foregoing, if it appears that the Order is likely not to be fulfilled in its entirety, the Parties will work in good faith to resolve any disputes that may arise with respect to same. Additionally, TRAFFIQ will continue to deliver up to one hundred and ten percent (110%) of the Inventory that should be delivered pursuant to an Order in the event TRAFFIQ receives an Ad call from Publisher’s Ad Server, provided however, that TRAFFIQ will not be responsible for payment with respect to any inventory delivered in excess of one hundred percent (100%) of that required to be delivered pursuant to the Order. After achieving delivery of Inventory equal to one hundred and ten percent (110%) of the Inventory that should be delivered pursuant to an Order, TRAFFIQ will deliver no Ads in response to Publisher’s Ad call. TRAFFIQ will provide Publisher notice through the TRAFFIQ Publisher Account upon achieving one-hundred percent (100%) delivery pursuant to an Order. Any notices of over-delivery thereafter are at the discretion of TRAFFIQ.

5. Order Suspension

  1. TRAFFIQ will have the right to suspend delivery of the Inventory in the following circumstances:
    1. Publisher violates Sections 2(c) and/or 3(d) of this Agreement;
    2. Publisher fails to timely conform to Section 2(d) of this Agreement;
    3. The Parties are unable to integrate TRAFFIQ ad tags for an Order prior to the Order Commencement Date pursuant to Section 4(b);
    4. TRAFFIQ provides Publisher with notice pursuant to Section 4(c) that an Under-Delivery has occurred pursuant to Section 4(c), provided that (1) at least seven (7) days have elapsed since the Order Commencement Date and TRAFFIQ has provided Publisher with seven (7) days to cure such Under-Delivery, or (2) in the case where an Order delivery time is for fourteen (14) days or less, at least twenty-five percent (25%) of the Order delivery time has passed and TRAFFIQ has provided Publisher with at least an additional twenty-five percent (25%) of the Order delivery time to cure such Under-Delivery;
    5. Publisher’s Ad Server is not functioning properly, provided that such suspension will be limited to one (1) time and for no longer than 72 hours, during which time Publisher must either provide notice that such Ad Server is again functional or utilize TRAFFIQ’s ad server for fulfillment of the Order; and/or
    6. Publisher commits a material breach of this Agreement that is capable of cure.
  2. Publisher will have the right to suspend delivery of the Inventory in the following circumstances:
    1. TRAFFIQ violates any of Sections 3(a) through 3(c) of this Agreement;
    2. The Parties are unable to integrate TRAFFIQ ad tags for an Order prior to the Order Commencement Date pursuant to Section 4(b);
    3. Publisher’s Ad Server is not functioning properly, provided that such suspension will be limited to one (1) time and for no longer than 72 hours, during which time Publisher must either provide notice that such Ad Server is again functional or utilize TRAFFIQ’s ad server for fulfillment of the Order; and/or
    4. TRAFFIQ commits a material breach of this Agreement that is capable of cure.
  3. Each such suspension pursuant to this Section 5 will, unless otherwise provided for in Sections 5(a) or 5(b) above, be effective until a time within one (1) business day after the cure to the reasonable satisfaction of the Party invoking its suspension rights of the condition or conditions that gave rise to such suspension, provided that notice of cure is provided to the Party invoking its suspension rights, and provided further that if the condition or conditions that gave rise to such suspension have not been cured within three (3) business days of the initial notice of suspension (unless a longer or shorter period is specified in Sections 5(a) or 5(b) above), the Party that invoked such suspension right will be able to avail itself of the Order cancellation rights set forth in Section 6 hereof, where applicable.

6. Order Cancellation

  1. TRAFFIQ will have the right to cancel the Order in the following circumstances:
    1. Publisher fails to cure any condition that gave rise to a suspension pursuant to Section 5(a) within the time frame set forth in Section 5(c);
    2. Upon giving Publisher the proper Cancellation Notice;
    3. Publisher commits a material breach of this Agreement that is incapable of cure.
  2. Publisher will have the right to cancel the Order in the following circumstances:
    1. TRAFFIQ fails to cure any condition that gave rise to a suspension pursuant to Section 5(b) within the time frame set forth in Section 5(c), except for Section 5(b)(iii), which is Publisher’s obligation and which will not give rise to a cancellation right to Publisher;
    2. Publisher determines within five (5) business days after the Acceptance that the intended use of the Inventory is not in conformity with the terms of the Order;
    3. TRAFFIQ commits a material breach of this Agreement that is incapable of cure.
  3. Any cancellation pursuant to this Section 6 will be effective within one (1) business day of notice to the other Party hereto. TRAFFIQ will cease delivery of the Inventory within twenty-four (24) hours of the effective time of such cancellation, and the Parties will then undertake the order resolution process set forth in Section 7 hereof.

7. Order Resolution; Payment

  1. Within one (1) business day after the Order Resolution Date, a Final Report as to fulfillment of the Order will be available to Publisher via the TRAFFIQ Publisher Account. This Final Report will set forth the total amount of Inventory delivered to TRAFFIQ as of the Order Resolution Date based upon TRAFFIQ’s ad serving count (subject at all times to adjustment in accordance with Section 7(c) below), as well as the Final Sale Price, which will be calculated by multiplying the Sales Price by the Fulfillment Rate. Based on the Final Sale Price and the Fulfillment Rate or the Adjusted Fulfillment Rate (as applicable), TRAFFIQ will calculate the Publisher Fee, subject to the provisions of Section 7(b) hereof with respect to account reconciliation. TRAFFIQ will pay Publisher the Publisher Fee as soon as possible thereafter, but in no case later than sixty (60) days after the Order Resolution Date, subject to (i) extension in the case of an account reconciliation pursuant to Section 7(b), and/or (ii) the right of TRAFFIQ to extend the deadline for payment to the Publisher of the Publisher Fee in circumstances where TRAFFIQ (1) is resolving a dispute with the Participating Advertiser that has purchased the Inventory from TRAFFIQ subject to the Order or (2) is investigating possible fraud and/or invalidity of the Inventory, as provided for in Section 7(c) hereof. For purposes of clarity, the methodology utilized by TRAFFIQ to calculate the delivery of the Inventory is available at TRAFFIQ.com/policies.
  2. If Publisher has utilized a Supported Ad Server for purposes of independently tracking the delivery of the Inventory in accordance with the terms of the Order, pursuant to Section 4(b) hereof, and Publisher believes that the Final Report prepared by TRAFFIQ pursuant to Section 7(a) above is inaccurate, Publisher may within fifteen (15) days of the Order Resolution Date submit a written request for reconciliation of reports to TRAFFIQ. Upon timely receipt of the request for reconciliation, the Parties agree to review in good faith both TRAFFIQ’s Final Report, including supporting materials and data related thereto, and Publisher’s figures derived from its Supported Ad Server, including supporting materials and data related thereto. If Publisher’s figures from its Supported Ad Server are no more than ten percent (10%) greater than those used by TRAFFIQ to arrive at the Final Sale Price, the Parties agree that TRAFFIQ’s numbers will be controlling and there shall be no further right or remedy available to Publisher. If Publisher’s figures from its Supported Ad Server are more than ten percent (10%) greater than those used by TRAFFIQ to arrive at the Final Sale Price, the Parties agree to accept TRAFFIQ’s figures to calculate the Final Sale Price and TRAFFIQ shall be responsible for paying Publisher the Publisher Fee based on that Final Sale Price plus five percent (5%).
  3. Publisher acknowledges and agrees that TRAFFIQ may, in its sole and exclusive discretion, make adjustments to the total amount of Inventory delivered by the Order Resolution Date as reported in the Final Report within twenty (20) days after the Order Resolution Date based upon (i) disputes and/or challenges that may be asserted by a Participating Advertiser, or (ii) Inventory that it determines, either through automated means or through manual, human efforts, is invalid or fraudulent in nature. In the event of an adjustment pursuant to this Section 7(c), the calculations set forth in Section 7(a) will be performed again after submission of the adjusted Final Report and payment will be made as if the Order Resolution Date had occurred on the date of issuance of such adjusted Final Report, subject to the provisions of Section 7(b) hereof with respect to account reconciliation.

8. Non-Disclosure; Data Ownership; Privacy

  1. Publisher may, from time to time, create profiles to be posted on the TRAFFIQ.com website setting forth the types of Inventory it has available and the prices at which it desires to sell such Inventory. Since all such information will be available through a publicly accessible website, no such information will be deemed Confidential Information. Additionally, Publisher may, from time to time, sell its Inventory to a Participating Advertiser on terms that may be agreed upon by Publisher and such Participating Advertiser. The Participating Advertiser will be under no obligation to keep any information relating to any such transaction as Confidential Information, including without limitation, the Sales Price, the Inventory made available or the overall performance of the Inventory with respect to the Participating Advertiser’s campaign. Additionally, and notwithstanding anything to the contrary set forth above, Publisher understands and agrees that TRAFFIQ may (i) aggregate and use data and information about transactions occurring through the TRAFFIQ Marketplace, (ii) use data and information about single transactions occurring through the TRAFFIQ Marketplace (provided such information will not be capable of specifically identifying Publisher, unless Publisher agrees to be identified in advance), and/or (iii) use data about the performance of Publisher’s Inventory for its own use, and in order to deliver, disseminate, publicly broadcast, publicize and otherwise fully disclose such data and/or information to any person or entity and in any manner it determines in its sole discretion (provided such information will not be capable of specifically identifying Publisher, unless Publisher agrees to be identified in advance). Any such disclosures pursuant to the immediately preceding sentence shall not be deemed to be a breach of TRAFFIQ’s confidentiality obligations set forth in this Section 8. Publisher agrees that TRAFFIQ may issue a press release announcing Publisher’s registration with TRAFFIQ and may use its logo in promoting TRAFFIQ and/or the availability of Publisher’s Inventory for sale through TRAFFIQ.
  2. Notwithstanding anything contained in this Agreement to the contrary, the term “Confidential Information” shall not include information which: (i) was previously known to a Party; (ii) was or becomes generally available to the public through no fault of the receiving Party (“Recipient”); (iii) was rightfully in Recipient’s possession free of any obligation of confidence at, or subsequent to, the time it was communicated to Recipient by the disclosing party (“Discloser”); (iv) was developed by employees or agents of Recipient independently of and without reference to any information communicated to Recipient by Discloser; or (v) was communicated by Discloser to an unaffiliated Third Party free of any obligation of confidence. Additionally, either party may disclose Confidential Information in response to a valid order by a court or other governmental body, as otherwise required by law or the rules of any applicable securities exchange or as necessary to establish the rights of either party under this Agreement; provided, however, that both parties will stipulate to any orders necessary to protect said information from public disclosure.
  3. All personally identifiable information provided by individual web users who are informed that such information is being gathered solely on behalf of a Participating Advertiser pursuant to the Participating Advertiser’s posted privacy policy is the property of the Participating Advertiser, is subject to the Participating Advertiser’s posted privacy policy, and is considered Confidential Information. Any other use of such information must be agreed to in writing signed by both Parties. TRAFFIQ, TRAFFIQ’s Participating Advertisers, and Publisher shall post on their respective Web sites their privacy policies and adhere to their privacy policies, which abide by the applicable laws.

9. Disclaimer of Warranties

ALL OF THE SERVICES AND TECHNOLOGY PROVIDED BY TRAFFIQ, INCLUDING WITHOUT LIMITATION THE TRAFFIQ MARKETPLACE, AS WELL AS ALL CONTENT, DATA, MATERIALS, AND DOCUMENTATION PROVIDED BY TRAFFIQ AND ITS SUPPLIERS AND AFFILIATES PURSUANT TO THIS AGREEMENT AND IN FULFILLMENT OF AN ORDER ARE PROVIDED “AS-IS” AND “AS AVAILABLE,” WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, UNLESS OTHERWISE SET FORTH IN THIS AGREEMENT. TRAFFIQ AND ITS SUPPLIERS AND AFFILIATES MAKE NO WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. TRAFFIQ DOES NOT WARRANT THAT THE SERVICES AND TECHNOLOGY PROVIDED BY TRAFFIQ AND ITS SUPPLIERS AND AFFILIATES WILL BE PROVIDED ERROR-FREE, UNINTERRUPTED, COMPLETELY SECURE OR VIRUS-FREE.

10. Limitation of Liability

EXCLUDING A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 12 OR DAMAGES THAT RESULT FROM A PARTY’S BREACH OF SECTION 8 OR INTENTIONAL MISCONDUCT BY A PARTY, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY HERETO FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION AND THE LIKE, INCURRED BY THE OTHER PARTY ARISING OUT OF THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THIS AGREEMENT, IN NO EVENT WILL TRAFFIQ’S LIABILITY ARISING OUT OF THIS AGREEMENT FROM ANY CAUSE OF ACTION OR CLAIM WHATSOEVER EXCEED THE AGGREGATE FINAL SALES PRICES OF ALL PUBLISHER’S ORDERS HAVING AN ORDER RESOLUTION DATE WITHIN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT THAT GAVE RISE TO SUCH LIABILITY.

11. Term and Termination

  1. This Agreement will be effective upon the earlier of (i) the submission by Publisher of an Offer, or (ii) the signature of an authorized representative of both Parties hereto and shall continue for a period of one (1) year (the “Initial Term”), unless terminated earlier pursuant to the terms hereof. This Agreement shall be automatically renewed for each subsequent one (1) year period thereafter (each, a “Renewal Term” and together with the Initial Term, the “Term”) unless either party gives the other written notice of cancellation at least thirty (30) days prior to the expiration of the Initial Term or any Renewal Term.
  2. Notwithstanding anything to the contrary set forth in this Agreement, including without limitation the provisions of Section 11(a) above, this Agreement may be sooner terminated as follows:
    1. Either Party may terminate this Agreement effective immediately if the other Party is in default of any material obligation under this Agreement, and such default shall have continued un-remedied for a period of ten (10) days following written notice of such default given by the non-defaulting Party to the defaulting Party;
    2. Either Party may terminate this Agreement, effective immediately, if the other Party is adjudicated bankrupt, becomes insolvent, voluntarily or involuntarily commences liquidation, if a receiver (temporary or permanent) for its property or a part thereof is appointed by a court of competent jurisdiction and not dismissed within 30 days after appointment, if it makes a general assignment for the benefit of creditors, or if execution is levied against substantially all of its property or which would have an adverse effect of the operation of its business and is not removed within thirty (30) days;
    3. Either party may terminate this Agreement, at any time, for any reason or no reason at all, upon forty five (45) days prior written notice is given to the other party.
  3. Upon the effective date of termination, all rights and obligations of the Parties will terminate except:
    1. Each Party must fulfill whatever remaining duties or obligations it has with respect to any outstanding Order until such Order is complete and fully reconciled;
    2. Each Party’s duty of confidentiality pursuant to this Agreement;
    3. Any indemnification obligation owed by a Party to the other Party hereto pursuant to this Agreement; and
    4. TRAFFIQ’s obligation to make payment to Publisher in accordance with the terms of this Agreement.

12. Indemnification

  1. Publisher agrees to defend, indemnify and hold harmless TRAFFIQ, its Affiliates and their respective directors, officers, employees and agents from Losses incurred as a result of a third party claim, judgment and/or proceeding relating to or arising out of Publisher’s breach of this Agreement, including without limitation, display or delivery of any Ad in breach of this Agreement or the specifications of an Offer.
  2. TRAFFIQ agrees to defend, indemnify and hold harmless Publisher, its Affiliates and their respective directors, officers, employees and agents from Losses incurred as a result of a third party claim, judgment and/or proceeding relating to or arising out of TRAFFIQ’s breach of this Agreement.
  3. If any action will be brought against either Party (the “the Indemnified Party”) with respect to any allegation for which indemnity may be sought from the other Party (the “Indemnifying Party”), the Indemnified Party will promptly notify the Indemnifying Party of any such claim of which it becomes aware and will: (i) provide reasonable cooperation to the Indemnifying Party at the Indemnifying Party’s expense in connection with the defense or settlement of any such claim; and (ii) be entitled to participate at its own expense in the defense of any such claim. The Indemnified Party agrees that the Indemnifying Party will have sole and exclusive control over the defense and settlement of any such third party claim. However, the Indemnifying Party will not acquiesce to any judgment or enter into any settlement that adversely affects the Indemnified Party’s rights or interests without the prior written consent of the Indemnified Party.

13. Miscellaneous

  1. This Agreement constitutes the entire agreement of the Parties with respect to the specific subject matter hereof and supersedes all previous communications, representations, understandings, and agreements, either oral or written, between the Parties with respect to the subject matter hereof, except that, unless specifically contradicted by the terms of this Agreement, the TRAFFIQ Terms of Use shall govern your usage of the TRAFFIQ Marketplace and the Services (as defined therein).
  2. Where this Agreement is executed in paper format by the Parties, this Agreement may be executed in counterparts, each of which shall be an original and all of which together shall constitute one and the same document. By submitting an Offer on the TRAFFIQ Marketplace, Publisher agrees to be bound by all of the terms and conditions of this Agreement.
  3. Publisher represents and warrants that Publisher has all necessary permits, licenses, and clearances to sell the Inventory represented in an Offer and to otherwise perform its obligations under this Agreement, subject to the terms and conditions of this Agreement, including any applicable Policies. TRAFFIQ represents and warrants that it and/or its Participating Advertiser has all necessary permits, licenses and clearances to use the content contained in the Ad Materials and to otherwise perform its obligations under this Agreement, subject to the terms and conditions of this Agreement, including any applicable Policies. Each Party represents and warrants that by entering into this Agreement with the other, it is not breaching any duty or obligation to any third-party and that the person executing or otherwise agreeing to be bound this Agreement on behalf of it is the duly authorized representative of such Party and authorized to bind it to the terms of this Agreement. Each Party further represents and warrants that it will comply with at all times all applicable federal, state and local law, ordinances, regulations and codes which are relevant to their performance of their respective obligations under this Agreement.
  4. Neither Party will resell, assign or transfer any of its rights or obligations hereunder, and any attempt to resell, assign or transfer such rights or obligations without TRAFFIQ’s prior written approval will be null and void, provided, however, that it is understood and agreed by Publisher that TRAFFIQ is purchasing the Inventory on behalf of its Participating Advertisers and will assign its rights with respect to the Inventory to the Participating Advertiser that has Accepted an Offer. All terms and provisions of this Agreement will be binding upon and inure to the benefit of the Parties hereto and their respective permitted transferees, successors and assigns. The failure by any Party to exercise or enforce any of the terms or conditions of this Agreement shall not constitute a waiver of that Party’s rights hereunder to enforce each and every term and condition of this Agreement.
  5. This Agreement shall be governed by the laws of the State of New York. TRAFFIQ and Publisher agree that any claims, legal proceeding or litigation arising in connection with this Agreement will be brought solely in New York, and the Parties consent to the jurisdiction of such courts. No modification of this Agreement shall be binding unless in writing and signed by both Parties. If any provision herein is held to be unenforceable, the remaining provisions shall remain in full force and effect. All rights and remedies hereunder are cumulative.
  6. Any notice required to be delivered hereunder shall be delivered to Publisher via e-mail at the e-mail address specified by Publisher in its TRAFFIQ Publisher Account and to TRAFFIQ via e-mail to cs@traffiq.com.
  7. Neither Party shall be deemed in default hereunder, nor shall it hold the other Party responsible for, any cessation, interruption or delay in the performance of its obligations hereunder and/or under any Order pursuant to the terms of this Agreement due to causes beyond its reasonable control including, but not limited to: earthquake, flood, fire, storm or other natural disaster, act of God, labor controversy or threat thereof, civil disturbance or commotion, disruption of the public markets, war or armed conflict or the inability to obtain sufficient material, supplies, labor, transportation, power or other essential commodity or service required in the conduct of its business, including Internet access, or any change in or the adoption of any law, ordinance, rule, regulation, order, judgment or decree.
  8. The Parties hereto are independent contractors. This Agreement shall not be construed to create a joint venture or partnership between the Parties. Neither Party shall be deemed to be an employee, agent or legal representative of the other for any purpose, and neither shall have any right, power or authority to create any obligation or responsibility on behalf of the other except as specifically set forth herein.
  9. The section headings contained in this Agreement are solely for the purpose of reference, are not part of the agreement of the Parties, and will not in any way affect the meaning or interpretation of this Agreement.

Appendix A

Definitions

“Accepted,” “Acceptance,” and/or “Accept” means the acceptance by a Participating Advertiser of an Offer submitted by Publisher.

“Ad” means one component of the Ad Materials, specifically an advertisement in its graphical-, audio-, video-, multimedia- and/or text-based form.

“Adjusted Fulfillment Rate” means, in the instance where an Order is cancelled early by a Participating Advertiser, the total Inventory actually delivered to such Participating Advertiser as of the Order Resolution Date divided by the total Inventory set forth in the Offer from which the Order was created, divided by the total number of days in the Order and then multiplied by the number of days the Order actually ran through the Order Resolution Date, provided that the Adjusted Fulfillment Rate will never exceed 1.0.

“Ad Materials” means an Ad and all related technical features, including without limitation, artwork, copy, active URLs, images, Flash, rich media, and/or audio/video files, as well as other creative elements.

“Ad Server” means a computer server that stores advertisements and/or delivers them to a specified website upon receiving an ad request from another server.

“Affiliate” means, with respect to either Party, any corporation, firm, partnership, person or other entity, whether de jure or de facto, which directly or indirectly owns, is owned by or is under common ownership with such party to the extent of at least 50% of the equity having the power to vote on or direct the affairs of the entity, and any person, firm, partnership, corporation or other entity actually controlled by, controlling or under common control with such party.

“Cancellation Notice” means that number of business days (as set forth in the Offer, but no less than 1) of notice required by the Participating Advertiser to cancel an Order, as set forth in an Offer.

“Click” means a hypertext link contained within an Ad that has been followed by an Internet end user by clicking on or otherwise selecting the hypertext link with a mouse or any other peripheral device, which successfully directs the end user to another website (typically the Participating Advertiser’s website).

“Confidential Information” means that information which a Party to this Agreement receives from the other Party to this Agreement which the receiving Party agrees not to disclose and to use only for purposes of fulfilling its obligations under the Agreement.

“Final Report” means the report prepared by TRAFFIQ following the Order Resolution Date, which outlines the total amount of Inventory delivered to a Participating Advertiser based on TRAFFIQ’s proprietary ad serving, tracking and reporting interface.

“Final Sale Price” means the Sales Price multiplied by the Fulfillment Rate, subject to adjustment in accordance with Section 9(b) of this Agreement.

“Fulfillment Rate” means the total Inventory actually delivered to a Participating Advertiser as of the Order Resolution Date divided by the total Inventory set forth in the Offer from which the Order was created, provided that the Fulfillment Rate will never exceed 1.0.

“Impression” means an occasion of the display of an Ad to an Internet end user.

“Inventory” means available advertising space on a Site for which a specific action must be performed in order to be recorded (i.e., an Impression or a Click) and which has various attributes associated with it (i.e., text or display, rich media, geographically filtered, demographic information, time of day for delivery, etc…).

“Losses” mean any and all damages, liabilities, costs and expenses, including reasonable attorneys’ fees.

“Offer” means a submission through the TRAFFIQ Marketplace by Publisher of a description of available Inventory it is willing to sell in response to an RFP from a Participating Advertiser, including any editorial adjacencies associated with the Inventory, the Inventory availability dates, the Cancellation Notice, and any other information relevant to the Inventory, that will be sold upon a Participating Advertiser accepting such Offer.

“Order” means the confirmed Acceptance of an Offer, pursuant to which the TRAFFIQ Marketplace will facilitate delivery of the Inventory to a Participating Advertiser in accordance with the terms set forth in the Offer, including without limitation, the delivery timeframes.

“Order Commencement Date” means the actual date on which the delivery of the Inventory is scheduled to commence.

“Order Resolution Date” means the earlier to occur of (i) the date on which delivery of Inventory pursuant to the Order is completed, (ii) the last date for delivery of the Inventory as specified in the Order, whether all of the Inventory is delivered or not, or (iii) the date on which the Order is cancelled early pursuant to Section 8 of this Agreement, and, where the Order length spans at least two calendar months, (iv) the end of each calendar month during such term, provided (i), (ii) or (iii) shall not have occurred earlier, and provided further that there may be, in such instances, and likely will be multiple such dates per Order.

“Participating Advertiser” means an entity that submits RFPs in order to acquire Inventory from TRAFFIQ through which it will display Ads.

“Policies” means the advertising and publishing criteria and specifications, including without limitation, content limitations, technical specifications, privacy policies, user experience policies, policies regarding consistency with TRAFFIQ and its publishers’ public image, community standards regarding obscenity or indecency (taking into consideration the Site), and other publication, editorial and/or advertising policies, all of which are set forth at TRAFFIQ.com/policies.

“Publisher Fee” means (i) where the Fulfillment Rate is 0.90 or greater, seventy percent (70%) of the Final Sale Price, or (ii) where the Fulfillment Rate is less than 0.90, sixty-five percent (65%) of the Final Sale Price, unless the Order is cancelled early by the Participating Buyer for any reason, in which case it means, (iii) where the Adjusted Fulfillment Rate is 0.90 or greater, seventy percent (70%) of the Final Sale Price, or (ii) where the Adjusted Fulfillment Rate is less than 0.90, sixty-five percent (65%) of the Final Sale Price.

“RFP” means a request for proposal submitted by a Participating Advertiser by which it solicits an Offer from Publisher, either individually or along with other TRAFFIQ publishers, for particular types of Inventory usually at certain times.

“Sales Price” means the price set forth in an Offer which has been Accepted by a Participating Advertiser.

“Site” means the Internet website(s) or other interactive digital platform set forth in an Offer for which Inventory is available and to which the Ad Materials will be delivered.

“Supported Ad Server” means any Ad Server set forth at www.iab.net/standards/measurement.asp.

“Terms of Use” means the terms and conditions for use of the TRAFFIQ.com website located at TRAFFIQ.com/terms, as may be amended from time to time.

“TRAFFIQ Marketplace” means the Internet-based application and service available to Participating Advertisers, Publisher and other participating publishers of Internet advertising Inventory with and through which Participating Advertisers can submit RFPs and publishers, including Publisher, can submit Offers, and once an Order is created, the Inventory is delivered, tracked and monitored, and transactions and payments are settled.

“TRAFFIQ Publisher Account” or “Registered Account” means the unique account established by Publisher and which is used by Publisher to submit Offers to the TRAFFIQ Marketplace in response to RFPs, run reports about Publisher’s transactions and inventory management, both ongoing and historical, and to undertake research about the Internet advertising market and industry.

“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 impression are to be delivered over a 10 day period and through day 7 (when 7,000,000 impressions should have been delivered), less than 5,250,000 impressions (75% of 7,000,000) have actually been delivered, an Under-Delivery will be deemed to have occurred.

Table of Contents

  1. Definitions
  2. Offer Submission; Acceptance; Material Changes; Technical Specifications
  3. Ad Materials
  4. Reports; Third Party Ad Serving; Under-Delivery
  5. Order Suspension
  6. Order Cancellation
  7. Order Resolution; Payment
  8. Non-Disclosure; Data Ownership; Privacy
  9. Disclaimer of Warranties
  10. Limitation of Liability
  11. Term and Termination
  12. Indemnification
  13. Miscellaneous
  14. Appendix A: Definitions