Master Services Agreement
General Payment Provisions; Reporting
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4. General Payment Provisions; Reporting. 4.1 Account Information. Media Company agrees and acknowledges that it is solely responsible for maintaining the accuracy of its account information, including mailing address, phone and email address, and VMT will have no liability under this Agreement for any delay in payment arising due to incorrect or outdated information within Media Company’s account. In the event that VMT incurs any fees, payment cancellation or other charges or expenses as a result of any missing, incorrect or outdated Media Company account information, VMT shall have the right to deduct such expense from any payments due to Media Company. 4.2 Minimum Guarantee. The “Minimum Guarantee” for Creatives will be calculated based on the Net CPM Fees (as set forth in the table in Section 3.1.4.2 above) multiplied by the number of Impressions actually made available to VMT each Month in accordance with Section 4.3. Subject to Sections 3.2.3(i) or (ii) above, VMT shall pay Media Company the Minimum Guarantee based on a one-hundred percent (100%) fill rate. For the avoidance of doubt, in the event that VMT does not sell all of the Impressions made available by Media Company each Month for the Animax Properties (and assuming that Media Company is not in violation of Sections 3.2.3(i) and (ii)), VMT shall nevertheless pay Media Company as if all of the Impressions had been sold by VMT. 4.3 Payment Reporting. Within thirty (30) days after the end of each Month during the Term, VMT will provide Media Company with access to end of month reporting in accordance with Section 3.1.4.5 above, which, subject to the terms of Section 3.1.4.3 above and the discrepancy terms below, shall be the basis for determining payment due to Media Company and shall describe in reasonable detail the basis on which payment is made. In the event that Media Company’s reported ad server measurements of Impressions are higher than those measurements reported by VMT by more than 15% over the Month, VMT will facilitate a reconciliation effort between the parties. If the discrepancy cannot be resolved and VMT has made a good faith effort to facilitate the reconciliation effort, the parties agree that VMT and Publisher shall split the difference evenly (i.e., 50/50) for any amounts above the 15% discrepancy. By way of example, if VMT’s reports show that Media Company has delivered 1,000,000 Impressions, but Media Company’s report shows that Media Company has delivered 1,200,000 Impressions, Media Company shall be paid for 1,025,000 Impressions. 4.4 Payment. VMT shall make all payments under this Section 4 to Media Company within sixty (60) days after the end of each month in which VMT purchases the Monthly Impressions from Media Company. All payments must be made in Japanese Yen by wire transfer pursuant to the wire transfer instructions set forth below or such other instructions as may be specified by Media Company in writing. All payments required by this Agreement are exclusive of national, local and foreign taxes, VAT, duties, tariffs, levies and similar assessments. All payments made under this Agreement shall be made free and clear of and without deduction or withholding for or on account of any taxes unless such deduction or withholding is required by applicable law, in which case VMT shall (i) withhold the legally required amount from payment, (ii) remit such amount to the applicable taxing authority, and (iii) within 30 days of payment, deliver to Media Company original documentation or a certified copy evidencing such remittance (a “Withholding Tax Receipt”). In the event VMT does not provide a Withholding Tax Receipt in accordance with the preceding sentence, the VMT shall be liable to and shall reimburse Media Company for the withholding taxes deducted from the payment. Wire Instructions: Beneficiary Bank: Sumitomo Mitsui Banking Corporation Hamamatsu Branch (679) Bank ABA/Routing: SWIFT code: SMBC JP JT Beneficiary Name: Animax Broadcast Japan Beneficiary Account: 0201769 checking 4.5 VMT Platform Fee; Media Company Fees. In consideration of the Services, beginning July 1, 2014, Media Company agrees to pay to VMT (which may be collected by VMT through an offset of fees owed to Media Company) fifteen percent (15%) of the total value of the Ad Inventory sold in the VMT Platform. VMT shall use the Gross CPM to determine the fees to be paid to VMT and the Net CPM to determine the payments to be made to Media Company. To the extent fees are owed to Media Company under an Addendum, payments shall be made by VMT on a monthly basis, no later than the 60th day after the end of the month in which revenue was earned by Media Company. No payments will be issued for any amounts less than ¥25000 Yen, except upon termination, in which case the entire amount owed will be paid. No payment will be made for any delivery on unapproved Digital Media. All un-issued earnings will rollover to the next pay period. 4.6 Payment Exclusions; Remedies. Notwithstanding the terms of this Section 4 and in addition to any other remedies available to VMT, no payment shall accrue or be due to Media Company for any deceptive or fraudulent activity, as determined by VMT in its reasonable discretion, or for Impressions that violate Section 3.2.1, provided that VMT provide notice to Media Company and Media Company has an opportunity to rebut such finding. Impressions that are served but are not received due to end user blocking technology or software shall not count towards any payout calculation. A Video Creative served with any companion banner shall count as a single Impression as measured by VMT. Unless otherwise set forth in an Addendum attached hereto, only Impressions delivered from Japanese inventory shall count towards any payment under this Agreement. 4.6.2 Exclusions. Impressions for which payment is not made under Section 4.6 shall not apply to the Minimum Guarantee with regard to the Monthly Impressions. 4.7 Audit. During the Term and for a period of one (1) year thereafter, each Party will have the right to audit (“Auditing Party”) the relevant books and records of the other Party (“Records”), once per year upon at least ten (10) business days’ prior written notice to the other Party; provided however that if any audit discloses an under/over payment that in the aggregate equals five percent (5%) or more of the amounts that were actually due, then the Auditing Party will have the right to perform an additional audit during such twelve (12) month period). Such audits will be conducted during normal business hours and limited strictly to those Records relevant to verification of the payments due under this Agreement. Upon completion of any such audit, the Parties will jointly review the audit report and work in good faith to agree upon any reimbursement of any under or over-payment. If an audit reveals any under or over-payment in the amounts properly payable to Media Company, VMT, or Media Company, as the case may be, promptly will pay the amount of any such under or over-payment to the Auditing Party. The Auditing Party will pay the costs of each audit unless an audit reveals an under or over-payment in the Auditing Party’s favor of more than ten percent (10%) for any period, in which event, the Audited Party shall promptly reimburse the Auditing Party for its reasonable expenses incurred in connection with such audit, in addition to the amount of any such under or over-payment. As a condition to such audit, any third party involved in such audit shall execute a written agreement, reasonably satisfactory to the Party to be audited, to maintain in confidence all information obtained during the course of such audit except for disclosure to Auditing Party, its affiliates, and agents, as necessary for the above purpose. 5. Confidential Information. 5.1 Confidential Information. Either Party (the “Receiving Party”) may be exposed to or acquire information regarding the business, projects, operations, finances, activities, affairs, research, development, products, technology, technology architecture, business models, business plans, business processes, marketing and sales plans, customers, finances, personnel data, computer hardware and software, computer systems and programs, processing techniques and generated outputs, intellectual property, procurement processes or strategies, suppliers, or customers of the other Party (the “Disclosing Party”) or its affiliates, directors, officers, employees, agents, suppliers, licensors or clients, including, without limitation, any idea, proposal, plan, procedure, technique, formula, technology, or method of operation (collectively, “Confidential Information”). Confidential Information will also include, without limitation, the terms and conditions of this Agreement. 5.2 Restrictions. The Receiving Party agrees to hold the Disclosing Party’s Confidential Information in strict confidence, to use such information for no purpose other than as necessary for the performance of its obligations and the exercise of its rights in accordance with this Agreement, and to make no disclosure of such information except in accordance with the terms of this Agreement. Each Party hereby consents to the disclosure of its Confidential Information to the employees, officers, directors, agents, accountants, attorneys and auditors of the other Party who have a need to know such Confidential Information and are subject to an appropriate agreement or obligation that is at least as restrictive as the provisions contained in this Section 5. VMT consents to the disclosure of its Confidential Information to any entity controlling, controlled by or under common control with Media Company; provided that, Media Company will be fully responsible for any action by such entity that would constitute a breach of this Section 5 as if it had been committed by Media Company. Each Party further agrees to treat all Confidential Information of the other in the same manner as it treats its own confidential and proprietary information of similar sensitivity, but in no case will the degree of care be less than reasonable care. The Receiving Party will immediately advise the Disclosing Party of any actual or potential violation of the terms of this Section 5.2, and will cooperate with reasonable requests of the Disclosing Party in relation to such violation. 5.3 Exceptions. Notwithstanding the foregoing, each Party’s confidentiality obligations hereunder will not apply to information which: (a) becomes publicly available without fault of the Receiving Party; (b) is rightfully obtained by the Receiving Party from a third party without restriction as to disclosure, or is approved for release by written authorization of the Disclosing Party; (c) is developed independently by either Party without use or reference to the other Party’s Confidential Information; or (d) is required to be disclosed by law. If either Party receives a subpoena or other validly issued judicial process requesting, or is otherwise required by a government agency to disclose, Confidential Information of the Disclosing Party, then the Receiving Party will promptly notify the Disclosing Party in writing of such requirement, and before making any such required disclosure, will reasonably cooperate with the Disclosing Party so that the Disclosing Party may seek confidential treatment or obtain an appropriate protective order to preserve the confidentiality of the Confidential Information. 5.4 Injunctive Relief; Survival of Obligations. Subject to Section 12 (Choice of Law; Arbitration) hereof, the Parties agree that in the event of a breach or threatened breach of this Section 5, the non-breaching Party will be entitled to seek equitable relief to protect its interests, including but not limited to preliminary and permanent injunctive relief, as well as money damages, all in accordance with the procedures set forth in Section 12. Nothing stated herein will be construed to limit any other remedies available to the Parties. All obligations under this Section 5 will survive for three (3) years following the expiration or earlier termination of this Agreement; provided, however, that with respect to trade secret information, the Recipient’s obligations under this Section will continue indefinitely. 6. Licenses and Ownership. 6.1 License Grant. During the Term and subject to the restrictions and conditions set forth below, as well as the conditions and restrictions set forth in Section 3.1.1 above, Media Company grants to VMT, a non-exclusive, non-assignable, non-transferable, non-sublicensable, royalty-free license to display Media Company’s trademarks, trade names, service marks, service names and Internet domain names (collectively, the “Trademarks”) for the sole purpose of selling and promoting the sale of Creatives on the Animax Properties. 6.2 No Assertions as to Trademarks. VMT will not (a) assert any trademark or other intellectual property or proprietary right in the Trademarks or in any element, derivation, adaptation, variation or name thereof; (b) contest the validity of any of the Trademarks; (c) contest Media Company’s or its licensors’ ownership of any of the Trademarks; or (d) in any jurisdiction, adopt, use, register, or apply for registration of, whether as a corporate name, trademark, service mark or other indication of origin, or as a domain name, any Trademarks, or any word, symbol or device, or any combination confusingly similar to, or which includes, any of the Trademarks. 6.3 Goodwill in Trademarks. As between Media Company and VMT, any goodwill resulting from VMT’s use of any Trademarks will inure to the benefit of Media Company and/or its licensors and will automatically vest in Media Company and/or its licensors upon use by VMT. VMT will not engage in any action it has reason to know that may dilute, diminish, or otherwise damage Media Company’s or its licensors’ rights and goodwill in the Trademarks. 6.4 Trademark Guidelines. VMT will abide by the trademark quality control guidelines, if any, for Media Company that are provided to VMT during the Term. If Media Company provides any updated guidelines during the Term, VMT will comply with the updated guidelines within a reasonable period of time. 6.5 Ownership of Trademarks. As between Media Company and VMT, all right, title and interest in the Trademarks are exclusively owned by Media Company or its licensors. Media Company grants no rights to the Trademarks except for the limited license granted above. Media Company reserves any rights not expressly granted and disclaims all implied licenses. 7. Representations and Warranties; Disclaimers. 7.1 General Representations and Warranties. Each Party hereto represents and warrants to the other Party that (a) such Party has the full right, power, and authority to enter into this Agreement on behalf of itself and to undertake to perform the acts required of it hereunder; (b) the execution of this Agreement by such Party, and the performance by such Party of its binding obligations and duties to the extent set forth hereunder, do not and will not violate any agreement to which it is a party or by which it is otherwise bound; (c) it will fulfill its obligation under this Agreement in compliance with all applicable laws, rules, regulations and self-regulatory guidelines; and (d) when executed and delivered by such Party, this Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its representations, warranties, terms and conditions. 7.2 VMT Representations and Warranties. VMT represents and warrants that , and will have its advertisers represent and warrant in each of the Sales Contracts that (a) VMT or advertiser has all necessary licenses and clearances to use the content contained in the Creatives, (b) any advertisements or other content displayed on the Animax Properties as contemplated in this Agreement do not and will not constitute a libel, slander, or defamation against any person or entity; (c) contain or promote activities generally understood as Internet abuse, including, without limitation, the sending of unsolicited bulk email, spam or sms spam, the use of spyware or other malware, or the use of viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming; or, (d) contain or promote points, lottery or rewards based ads, or sites that use the ads to generate revenue for users to win points, earn rewards or other incentives, or that otherwise deceptively encourage users to click on the ads. 7.3 Mutual Disclaimer. NO PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES MADE BY THE PARTIES IN THIS AGREEMENT. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, EACH PARTY EXPRESSLY DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NONINFRINGEMENT, TITLE OR UNINTERRUPTED SERVICE OR IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. 8. Indemnification. 8.1 Indemnification by VMT. VMT agrees to indemnify and defend Media Company, its affiliates and its and their employees, officers, directors, representatives and agents and their respective successors and assigns against, and hold each of them free and harmless from, any and all loss, damage, settlement or expense (including reasonable attorneys’ fees and expenses), as incurred arising out of any third-party claims (a) that allege facts, which if true, would constitute a breach of any of VMT ’s representations or warranties made hereunder or (b) that arise from any breach of any obligation of VMT hereunder, or (c) that the content in any Creatives delivered on the Animax Properties by VMT as contemplated in this Agreement, under U.S. law, infringe upon any copyrights, trademark rights, patent rights, trade secret rights, moral rights, or rights of publicity or privacy of a third party. 8.2 Indemnification by Media Company. Media Company agrees to indemnify and defend VMT and its employees, officers, directors, representatives and agents and their respective successors and assigns against, and hold each of them free and harmless from, any and all loss, damage, settlement or expense (including reasonable attorneys’ fees and expenses), as incurred, resulting from or arising out of any third-party claims (a) that allege facts, which if true, would constitute a breach of any of Media Company’s representations or warranties made hereunder, (b) that arise from any breach of any obligation of Media Company hereunder, or (c) that any of the content on the Animax Properties (other than any materials provided by VMT), under U.S. law, infringe upon any copyrights, trademark rights, patent rights, trade secret rights, moral rights, or rights of publicity or privacy of a third party. 8.3 Indemnification Procedures. A Party seeking indemnification for itself or any other indemnified person or entity entitled to indemnification under this Agreement (an “Indemnified Party”) will provide the other Party (the “Indemnifying Party”) with prompt written notice upon becoming aware of any claim subject to indemnification hereunder and will provide reasonable cooperation to such Indemnifying Party in the defense of the claims. Failure to notify the Indemnifying Party will not relieve the Indemnifying Party of any liability that the Indemnifying Party may have, except to the extent that such failure materially prejudices the Indemnifying Party’s legal rights. The Indemnifying Party, at its option, will have sole control of such defense and all negotiations for any settlement or compromise, provided that an Indemnified Party will be entitled to participate in its own defense at its sole expense. Any admission, settlement or compromise will not impose any obligation on the Indemnified Party in any manner without the Indemnified Party’s prior written consent. 9. Limitation of Liability. NO CONSEQUENTIAL DAMAGES. EXCEPT FOR (I) LOSSES AWARDED TO A THIRD PARTY OR LOSSES THAT A PARTY AGREES TO PAY TO A THIRD PARTY FOR THE SETTLEMENT OF A THIRD PARTY CLAIM IN CONNECTION WITH ITS INDEMNIFICATION OBLIGATIONS HEREUNDER (INCLUDING REASONABLE ATTORNEYS’ FEES); (II) A BREACH OF SECTION 5 HEREIN (CONFIDENTIAL INFORMATION); (III) FRAUD OR WILLFUL, INTENTIONAL OR GROSSLY NEGLIGENT CONDUCT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED AND UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY BROUGHT (INCLUDING, WITHOUT LIMITATION, UNDER ANY CONTRACT, NEGLIGENCE OR OTHER TORT THEORY OF LIABILITY), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 10. Term and Termination. 10.1 Term. This Agreement commences on the Effective Date and will continue for three years, until June 30, 2017 (the “Initial Term”), unless otherwise terminated in accordance with this Section 10 or 13.6 below. The parties may renew this Agreement for an additional one (1) year term (”Renewal Term”) by mutual written agreement to renew prior to the expiration of the Initial Term. The Initial Term and the Renewal Term shall be referred to herein as the “Term.” Directory: sony -> docs -> 03 03 -> Legal Dept -> Corporate%20Legal -> Former%20Staff%20Directories -> TFreed -> Crackle Crackle -> Confidential draft term sheet Crackle -> Company Name: crackle, inc. Address: 10202 W. Washington blvd., Culver city, ca 90232 Effective Date Crackle -> Apple inc. Confidentiality agreement (Apple Discloses) Download 253.63 Kb. Share with your friends:
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