Standard Terms and Conditions
1. Term. The term of this Agreement shall commence on the date of the signing of this
Agreement and shall renew for one (1) year periods automatically thereafter. Either party
may terminate this Agreement upon a thirty (30) day written notice. If Publisher provides
notice of termination and has not ceased use of MM’s Services, technology, or parts thereof
after the effective date of termination, MM may, in its sole discretion, continue billing
Publisher and third party advertising sources as applicable under the terms of this
2. Multivariate Testing of Advertising Technologies. In the event that Publisher tests MM’s
Services against a competitive advertising technology, valid statistical methods and
procedures shall be used. After such a test, MM may, in its sole discretion, produce a written
case study from such multivariate testing to share with prospective clients which may
contain, but is not limited to a description of techniques used, as well as advertising revenue
lift and performance comparisons. Prior to any sort of public release of such case study, MM
will provide Publisher with a draft for consideration and comment. MM may, in its sole
discretion, take such comments into account in finalizing the case study.
3. Payment Handling & Payment Terms. Publisher hereby expressly authorizes MM to
invoice, bill, and collect from third party advertising sources for inventory sold pursuant to this
Agreement. In some cases, third party advertising sources require that payment is issued
directly to Publisher. Accounting departments of each Party will coordinate to designate
which Party handles the billing of each third party advertising source. Where either Party is
handling and managing billing of third party advertising sources, the receiving Party shall
issue payment (or credit if there is an outstanding balance) from the other Party within the
Payment Term. Each Party acknowledges that certain third party advertising partners have
payment terms that exceed net the Payment Term, and each Party will notify the other of
such increased payment terms where applicable. In such cases involving third party
payment terms exceeding the Payment Term, the receiving Party shall have an additional 5
business days beyond the third party payment term to issue the payment or credit to the
other Party. For amounts duly received from third parties, each Party may credit or otherwise
offset balances owed to and by the other Party to minimize accounting transactions and
amounts transferred between the parties. At no time shall either Party be liable to the other
in any way for any revenue or revenue shares for payments not received from third parties.
The obligation to pay out, credit, and settle outstanding amounts collected on behalf of, or by
and between the Parties, as described herein, shall survive the termination of this
4. Third Party Advertising Agreements. Publisher acknowledges that it may be required to
engage in third party agreements with third party advertising sources for the Services to be
effectuated (“Third Party Advertising Agreements”). These Third Party Advertising
Agreements may pertain to but are not limited to header bidding and other programmatic
advertising demand, privacy policies, or compliance agreements related to laws such as
GDPR or COPPA. No entity is intended to be considered to be a third party
advertising demand, privacy policies, or compliance agreements related to laws such as
GDPR or COPPA. No entity is intended to be considered a third party beneficiary under this
Agreement. MM is not an insurer, and expressly disclaims all liabilities related to such third
party advertising sources, and Publisher expressly assumes all such liability in using or
interfacing with such third party technologies or advertising. Publisher expressly authorizes
MM to pause or otherwise suspend Services relating to third party advertising sources
whenever MM believes, in its sole discretion, that Publisher or MM’s actions or operations are
likely to be in breach of such Third Party Advertising Agreements.
5. Third Party Technology Fees. Publisher shall be responsible for all third party technology
fees itemized by such companies, including but not limited to DFP serving fees, traffic quality
analysis (e.g. Forensiq), creative quality analysis (e.g. Confiant, TMT), adblocked inventory
recovery (e.g. Pagefair), and header bidding request volume (e.g. Sovrn, Rubicon). When an
itemized amount under this section is billed to MM, Publisher shall be responsible for only
that amount which applies to Publisher’s usage of such third party services, without any
commission or handling fee to MM. MM shall not incur any expenses on Publisher’s behalf
under this section without Publisher’s written consent. Each Party shall be responsible for
expenses relating to its own general web servers, data centers, and email service providers
(e.g. Amazon Web services, Google Cloud, Microsoft Azure, DigitalOcean, MailChimp).
Inclusion of company names herein is for example purposes here, is not intended to be
exclusive in their markets and services, and does not imply any sort of endorsement by, or of
6. Improvements and Modifications to Services. MM may, in its sole discretion, create,
change, improve, update, upgrade, downgrade or discontinue any feature or functionality in
the Services at any time. Publisher acknowledges that some updates may reduce
advertising performance, for various reasons including but not limited to compliance with
government laws or regulations, technological compatibilities, as well as third party policies
or technology changes. Furthermore, Publisher agrees that during some critical patches,
there may be downtime for the Services.
7. Intellectual Property. Publisher hereby grants to MM the right to identify the Publisher and
its Sites as clients of MM, both by name and by any identifying corporate symbols or logos,
including but not limited for purposes of advertising, header bidding, advertising operations,
advertising operations engineering, as well as at industry events. MM shall make no claim of
ownership to the Publisher’s trade names, copyrights, trademarks, and all other intellectual
property rights the Publisher may have. Both parties are in all respects, their own entity and
no relationship, other than as defined by this Agreement, exists. MM hereby grants to
Publisher the right to use the Services as MM describes in its implementation instructions.
Publisher agrees that all title, including but not limited to copyrights and trademarks, moral
rights, patents, trade secrets and other intellectual property rights embodied or contained in
the Services, in and to the Services provided by MM, as well as its contents, and any or all
copies thereof are owned by MM, advertising partners, affiliates, subsidiaries, or as
applicable, from open source libraries. All title and intellectual property rights in and to the
Services which may be accessed through the use of the Services is MM’s property and may
be protected by applicable copyright or other intellectual property laws and international
treaty provisions. This Agreement grants Publisher no right whatsoever to use such content
in any manner inconsistent with this Agreement or MM’s implementation and usage
instructions. Publisher shall not use, remove, distribute, modify or alter any patent, copyright
or trademark notice from any part of the Services. MM reserves all rights not expressly
granted. Publisher also acknowledges that these intellectual property rights are protected by
the laws of the Province of British Columbia, Canada and international conventions.
Publisher acknowledges and agrees that the Services are provided for the Sites and
Publisher shall not transfer to or operate the Services on any other domains or websites.
Publisher shall not modify or create derivative works based upon the Services.
8. Responsibility for Publisher’s Sites. Publisher shall be solely responsible for the
development, operation, and maintenance of Publisher’s sites, applications, and domains
and for all the materials that appear thereon, including the accuracy and appropriateness of
the materials posted on Publisher’s website. Publisher shall ensure that the materials posted
at Publisher’s Sites do not violate or infringe upon the rights of any third party or is libelous or
otherwise illegal. MM disclaims all liability for such matters. Publisher hereby agrees to
indemnify and hold MM, its directors, officers, employees and contractors harmless from any
and all claims, actions, losses, lawsuits, liabilities, expenses, costs, damages and fees
(including reasonable attorney’s fees) arising from or relating to Publisher’s Sites.
9. Disclaimer of Warranties, Representation, Conditions.
a. Publisher expressly understands and agrees that Publisher’s use of the services is at
Publisher’s sole risk. The services are provided on an “as is” and “as available” basis.
MM expressly disclaims all other warranties, representations, guarantees and
conditions of any kind, whether express or implied, including, but not limited to the
implied warranties, representations and conditions of merchantability, fitness for a
particular purpose and noninfringement.
b. MM makes no warranty that (i) the services will meet Publisher’s requirements, or be
uninterrupted, timely, secure, or errorfree, (ii) the results that may be obtained from
the use of the services will be accurate or reliable, (iii) the quality of any products,
services, information, or other material purchased or obtained by Publisher through
the services will meet Publisher’s expectations, and (iv) any errors in the services will
be corrected. MM is not an insurer and shall not be liable to Publisher for any
outages or losses due to interruption of the Services, including total failure of
advertising to load on the Sites, or lost revenue due to any such failures.
c. Any material transmitted, received, downloaded or otherwise obtained or sent,
through the use of the services is done at Publisher’s own discretion and risk and that
Publisher will be solely responsible for any damage to Publisher’s computer system or
loss of data that results from the opening, download or sending of any such material.
d. No advice or information, whether oral or written, obtained by Publisher from or
through mm or its services shall create any warranty not expressly stated in this
e. Publisher acknowledges that as viruses are frequently created and distributed, the
antivirus component of the services is intended to detect only specific known viruses
and some unknown virus behavior patterns. There is no warranty that the services will
detect all viruses present on or sent to Publisher, Publisher’s network or email server;
Publisher’s responsibilities include the obligation to ensure that he/she/it has sufficient
backup systems in place.
10. Force Majeure. Except as is otherwise specifically provided in this Agreement, the Parties
hereto shall not be liable for failures or delays in performing their obligations hereunder
arising from any cause beyond their control, including but not limited to acts of God, acts of
civil or military authority, fires, strikes, lockouts or labour disputes, epidemics, governmental
restrictions, wars, riots, terrorism, earthquakes, storms, typhoons and floods.
11. Limitations of Liability. MM shall not be liable to Publisher for any incidental,
consequential, exemplary, special, or punitive damages of any kind or nature or any
damages resulting from Publisher’s use of the Services and the information contained in or
compiled by the Services, the interaction or failure to interact properly with any other service
or feature, whether provided by MM or a third party, the loss of use, data, profits, goodwill,
business interruption, computer failure or malfunctions, or any and all other commercial
damages or losses arising out of or in connection with this Agreement or the use or
performance of the Services of this Agreement. MM shall have no liability with respect to the
content of the Services or any part thereof, including but not limited to errors or omissions
contained therein, libel, infringement of rights of publicity, privacy, trademark rights, business
interruption, personal injury, loss of privacy, moral rights or the disclosure of confidential
information. Further, MM shall have no liability with respect to any harm that may be caused
by the transmission of a computer and internet virus, malware, trojans and other harmful
computer and internet programs. Also, MM shall not be held liable for any lawsuit or any
damages whatsoever should any advertising accounts with third party advertising sources
become banned, terminated, or suspended. Publisher agrees that regardless of any statute
or law to the contrary, any claim or cause of action arising out of or related to use of the
Services or this Agreement must be filed within one (1) year after such claim or cause of
action arose or be forever barred.
12. Indemnity. Publisher agrees to release, indemnify and hold MM, or its partners, and
subsidiaries, affiliates, officers, agents, cobranders, and employees, harmless from any
claim or demand, including reasonable legal fees, made by any third party due to or arising
out of the use of the Services or violation of this Agreement, or of any rights of another. When
MM is threatened with suit by a third party, MM may seek written assurances from Publisher
concerning its promise to indemnify MM; Publisher’s failure to provide those assurances may
be considered by MM to be a breach of this Agreement and may result in the suspension or
cancellation of Publisher’s access to the Services. This indemnification obligation will survive
the termination or expiration of this Agreement.
13. Relationship of Parties. This Agreement does not create a joint venture. Nothing in this
Agreement will constitute or be taken to constitute any Party as the partner, agent, or
representative of any other party for any purpose, nor will any party have the authority to act
or assume any responsibility or obligation on behalf of any other party, except as is expressly
agreed in writing. All duties, obligations, and liabilities of the Parties under this Agreement
will in every case be several.
14. Assignment. Neither of the Parties shall, except as provided in this Agreement or by the
written consent of the other Party which shall not be unreasonably withheld, transfer or
assign, either directly or indirectly, any or all its rights, obligations, or benefits hereunder to
any third party.
15. Confidentiality. The Parties shall keep confidential, and shall cause and require their
partners, and subsidiaries, affiliates, officers, agents, cobranders, and employees to keep
confidential, and all information which it or any of its partners, and subsidiaries, affiliates,
officers, agents, cobranders, and employees may acquire pursuant to, or in the course of
Publisher’s use of the Services; provided, however, that such an obligation to maintain
confidentiality will not apply to information which at the time of disclosure was in the public
16. Amendment. MM reserves the right to modify and amend this Agreement from time to time.
MM will give Publisher at least 30 days notice of any change by posting the amended
Agreement on MM’s website or through email. Publisher will be deemed to have accepted
any such changes if, 30 days after MM has given this notice, Publisher continues to use the
Services. Publisher shall not modify this Agreement without the written consent of MM.
17. Miscellaneous. The Effective Date shall be the latest execution date of this Agreement by
the Parties. Time is of the essence with this Agreement. This Agreement shall inure to the
benefit of and be binding upon the parties and their respective successors and permitted
assigns. MM’s failure to enforce specific performance or other adherence to any provision of
this Agreement shall not constitute a waiver of MM’s rights to subsequently enforce such
provision or any other provision of this Agreement. The headings of this Agreement are
inserted for convenience only. This Agreement and its incorporated MM Standard Terms &
Conditions constitute the entire agreement between the Parties, superseding and replacing
any and all agreements or undertakings regarding the subject matter of this Agreement
entered into, made or given by the parties prior to the Effective Date.
18. Counterparts and Copies. This Agreement may be executed in counterparts and copies,
each of which shall be deemed an original and all of which together shall constitute one and
the same document. Delivery of an executed signature page to this Agreement by facsimile
or email shall be effective to the same extent as if such a party had delivered a manually
19. Warranty by the Parties. The Parties each warrant that they have the power and authority
to enter into and carry out their obligations under this Agreement and that each has taken all
necessary action to authorize the entry into and performance of its obligations under this
Agreement; and they each have the authority to deal with in the manner contemplated by this
Agreement. Each of the Parties hereto hereby represents to the other that the executions
and delivery of this Agreement and the performance thereof will not contravene or constitute
a breach or default under any other agreement, instrument or other form of commitment to
which that party hereto is also bound.
20. Acknowledgement. Publisher acknowledges that Publisher has read this Agreement and
agrees to all its terms and conditions. Publisher understands that MM may at any time,
directly and indirectly, solicit Publisher referrals on terms that may differ from those contained
in this Agreement or operate websites that are similar to or compete with Publisher’s Sites.
Publisher has independently evaluated the desirability of entering into this Agreement and is
not relying on any representation, guarantee or statement other than as set forth in this
21. Severability. If for any reason a court of competent jurisdiction finds any provision of the
Agreement, or portion thereof, to be unenforceable, that provision of the Agreement shall be
enforced to the maximum extent permissible so as to affect the intent of the parties, and the
remainder of this Agreement shall continue in full force and effect. Any provision of this
Agreement, which is prohibited or unenforceable, in full or in part, in any relevant jurisdiction,
shall not invalidate the remaining provisions of this Agreement or affect the validity and
enforceability of that provision in any other jurisdiction.
22. Solicitation. During the Term of this Agreement, and for a period of two (2) years thereafter,
Publisher shall not directly or indirectly attempt to hire, solicit or attempt to solicit the services
or employment of MM’s employees or contractor-consultants.
23. Choice of Law. This Agreement shall be governed by and construed in accordance with the
laws of the Province of British Columbia, Canada. In the event that a legal action is brought
by one party against the other, Publisher agrees to submit to the personal and exclusive
jurisdiction of the courts within the Province of British Columbia. The losing party shall
reimburse all reasonable legal costs and expenses to the winning party.
OPTIMIZATION & MONETIZATION AGREEMENT » STANDARD TERMS & CONDITIONS