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SDK Agreement

THIS SDK LICENSE AGREEMENT (“AGREEMENT”) IS A BINDING LEGAL AGREEMENT BETWEEN YOU, YOUR EMPLOYEES, AGENTS AND CONTRACTORS, AND ANY OTHER ENTITY ON WHOSE BEHALF YOU ACCEPT THIS AGREEMENT (COLLECTIVELY, “PUBLISHER”) AND FRACTIONAL MEDIA, INC. (“FM”).  PLEASE READ IT CAREFULLY.  THIS AGREEMENT GOVERNS YOUR USE OF THE FM SDK (DEFINED BELOW). AMONG OTHER THINGS, THIS AGREEMENT DESCRIBES YOUR RESPONSIBILITIES AND LIMITS OUR LIABILITY. 

BY PRESSING THE “I ACCEPT” BUTTON, YOU CREATE A BINDING AGREEMENT.  IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT USE, DOWNLOAD OR OTHERWISE ACCESS THE FM SDK.  BY USING, DOWNLOADING, OR OTHERWISE ACCESSING ANY PART OF THE FM SDK, YOU ARE REAFFIRMING THAT YOU AGREE TO BE BOUND BY THIS AGREEMENT AND ACCEPT WITHOUT LIMITATION OR QUALIFICATION ALL OF ITS TERMS AND CONDITIONS.  In consideration of the mutual promises and covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

 

1.      FM SDK. FM’s proprietary software, documentation and tools (“FM SDK”) allows Publisher to offer and sell designated ad placement space on the elements of any website or application that Publisher designates for the placement of ads (“Inventory”) to any participant who bids on the Inventory listed by Publisher (“Advertisers”). Advertisers may display and serve their Ads (as defined below) on Inventory Publisher makes available and based on Publisher’s selected selling criteria.

 

2.      Implementation. Upon Publisher’s acceptance of this Agreement, Publisher will promptly integrate the FM SDK with Publisher’s website or application and maintain the FM SDK, including by updating the then-current version of the FM SDK, in a manner that complies with the technical and implementation requirements provided under this Agreement or as specified by FM from time to time. Publisher and FM agree to coordinate integration efforts in good faith to complete the FM SDK integration by the deadline mutually agreed upon by the parties. After successful implementation, as determined by FM, Publisher will not remove the FM SDK without prior written notice to FM, provided that it will not be a violation of this provision if the FM SDK is removed due to technical issues outside the reasonable control of Publisher.

 

3.      Service Modification. FM reserves the right to modify or suspend Publisher’s use of the FM SDK in whole or in part at any time if FM believes such modification is reasonably necessary in order to: (a) comply with applicable law or industry regulation, including, without limitation, the requirements of any self-regulatory program or framework; (b) avoid or limit liability; (c) prevent errors or any other harm with respect to the FM SDK or other properties, services, web sites or applications serviced by FM; or (d) respond to Publisher’s breach of this Agreement.  

 

4.      License to FM SDK. Subject to the terms and conditions of this Agreement, FM hereby grants Publisher a non-exclusive, non-transferable, non-sublicenseable, revocable right during the Term to access and use the FM SDK solely for purposes of serving the content and placement of Advertisers’ advertisements on Publisher’s website or application, which include advertisements and any material that promotes a brand or products or services (“Ads”). 

 

5.      Restrictions. Publisher has no rights or licenses with respect to the FM SDK except as expressly provided in this Agreement and FM reserves all rights not explicitly granted herein.  Publisher will not, and will not allow or encourage any third party to: (a) copy, distribute, rent, lease, lend, sublicense, transfer or make the FM SDK available to any third party; (b) misappropriate, decompile, reverse engineer, or disassemble the FM SDK; (c) create derivative works based on the FM SDK or modify any feature or functionality of the FM SDK; (d) modify, remove, or obscure any proprietary notices or legends that appear on the FM SDK or during the use or operation thereof; (e) use the FM SDK to directly or indirectly generate queries, or impressions of or clicks on Ads through any automated, deceptive, fraudulent or other invalid means; or (f) encourage or require end users to click on Ads through offering incentives ( including, without limitation, offers of cash prizes, or anything else of value, or any other methods) that are manipulative, deceptive, malicious, or fraudulent.

 

6.      Publisher Obligations. Publisher will obtain all consents, waivers and approvals that may be required by applicable laws in connection with Publisher’s or its Advertiser’s collection, use, disclosure, and sharing of Service Data (as defined below). Publisher represents and warrants that (a) no site or application integrated with the FM SDK will be a website or online service directed to children, as defined under the Children’s Online Privacy Protection Act (“COPPA”), and (b) Publisher will not transmit any “personal information” (as defined under COPPA) about or relating to an individual under the age of 13 to FM. Publisher will be solely responsible for all aspects of the Ads and Publisher’s Inventory. Publisher will be responsible for any acts or omissions of its Advertisers that are in breach of this Agreement or in violation of any applicable laws. Publisher will not, and will not allow or encourage any third party to: (i) engage in any action or practice that reflects poorly on FM or otherwise disparages or devalues FM’s reputation or goodwill; or (ii) create or attempt to create a substitute or similar service or product to the FM SDK through the use of or access to any of the FM SDK or proprietary information related thereto. 

 

7.      Term; Termination.  The initial term of this Agreement will be one (1) year beginning on the Effective Date (“Initial Term”) and will automatically renew for successive one (1) year terms (each, a “Renewal Term”) (the Initial Term and Renewal Term, collectively, the “Term”). Either party may terminate this Agreement effective immediately if the other party is in material breach of any obligation, representation or warranty and fails to cure such material breach within thirty (30) days after receiving notice of the breach. Further, either party may terminate this Agreement immediately upon written notice to the other party at any time if: (a) the other party files a petition for bankruptcy or is adjudicated as bankrupt; (b) a petition in bankruptcy is filed against the other party and such petition is not removed or resolved within sixty (60) calendar days; (c) the other party makes an assignment for the benefit of its creditors or an arrangement for its creditors pursuant to bankruptcy law; (d) the other party discontinues its business; (e) a receiver is appointed over all or substantially all of the other party’s assets or business; or (f) the other party is dissolved or liquidated. Sections 5 through 14 and Section 16 of this Agreement, will survive expiration or termination of this Agreement. FM may terminate this Agreement for convenience at any time by providing thirty (30) days’ prior written notice to Publisher.  Upon termination or expiration of this Agreement for any reason, all licenses granted to Publisher herein will terminate and Publisher will discontinue all use of the FM SDK.

 

8.      Service Data; Ownership.  FM may collect and receive information that Publisher or the FM SDK collect during the delivery of Ads or the performance of its obligations under this Agreement, including, without limitation, device IDs, IP addresses, information about mobile app usage, device type, performance metrics, or other end user or Ad information, or any other data that Publisher elects to provide FM (“Service Data”). As between the parties, FM owns all right, title and interest in and to the FM SDK, all technologies, enhancements, modifications and derivative works relating thereto by whomsoever made, and Service Data (“FM IP”).  If Publisher has or acquires any rights to the FM IP, Publisher hereby assigns to FM all right, title and interest in and to the FM IP. Publisher may not use or disclose the Service Data without FM’s prior written consent, which may be withheld in its sole discretion. Notwithstanding anything to the contrary herein, any Service Data owned by FM will not include Publisher’s pre‑existing intellectual property rights that existed before the commencement of the integration of the FM SDK with Publisher’s website or application or that were collected without the use of or access to the FM SDK (“Publisher Materials”).  Publisher hereby grants to FM a non‑exclusive, worldwide, transferable, perpetual, irrevocable, fully paid up, royalty‑free license to use the Publisher Materials to the extent they are included in, or as necessary to use and exploit, the FM SDK. 

 

9.      Confidential Information. “Confidential Information” means non-public information disclosed by one party to the other party,  as well as the terms of this Agreement itself, and may include confidential information of a third party provided in connection with the FM SDK; however, Confidential Information does not include information that the recipient party can document: (a) was in its possession without any obligation of confidentiality prior to receipt pursuant to this Agreement, (b) becomes generally available to the public through no fault of the recipient party, or (c) was independently developed by the recipient party without reference to the disclosing party’s Confidential Information.  For avoidance of doubt, all FM IP will be deemed FM’s Confidential Information. The recipient party may use Confidential Information of the disclosing party only to exercise its rights and fulfill its obligations under this Agreement. The recipient party will use the same degree of care that it uses to protect its own confidential and proprietary information, but no less than a reasonable degree of care to protect the confidentiality of and to not disclose the disclosing party’s Confidential Information, except (i) to the recipient party’s employees, agents and professional advisors who need to know it and are bound in writing to obligations of confidentiality no less stringent than those set out in this Agreement, (ii) as necessary to enforce its rights under this Agreement, and (iii) if and as required by court order, law or governmental or regulatory agency (after, if permitted, giving reasonable notice to the discloser, using commercially reasonable efforts to provide the discloser with the opportunity to seek a protective order or the equivalent, and cooperating with the discloser to in the event that it elects to contest such disclosure or seek a protective order with respect thereto).  The recipient party will be liable for any breach of this Agreement by its employees, agents and professional advisers.  In the event of a breach or other compromise of Confidential Information of which a party is aware, such party will immediately notify the other party in a writing detailing all information known to such party about the compromise, the Confidential Information affected, and the steps taken by such party to prevent the recurrence of such breach and to mitigate the risk to the other party. Upon the expiration or termination of this Agreement, the recipient party will cease all use of and return to disclosing party all copies or extracts of the disclosing party’s Confidential Information, in any medium, or certify, in writing by an authorized officer of the recipient party, the destruction of the same to the disclosing party.  If Publisher provides any ideas, suggestions, or recommendations (“Feedback”) to FM regarding FM’s products or services, Publisher hereby assigns to FM all right, title and interest in and to the Feedback.  Publisher agrees to do all acts reasonably required to perfect and enforce such rights.

 

10.    Privacy; Prohibited Acts. Publisher and FM will each perform its obligations and exercise its rights under this Agreement in compliance with all applicable laws (e.g., privacy and export laws), rules, regulations and applicable Internet advertising industry guidelines (e.g., the self-regulatory principles/code of conduct of the Network Advertising Initiative, the Interactive Advertising Bureau and the Digital Advertising Alliance). Publisher will post and abide by a conspicuous and legally compliant privacy policy on each site, application or service that collects Service Data.  Publisher will not, and will not assist or knowingly permit any third party to: (a) provide or make available to FM any information that could be recognized as personally identifiable information (defined as any information that can be used to identify, contact, or locate a natural person, including, without limitation, a natural person’s name, email address, national identity number, or telephone number, but specifically excluding device IDs, IP addresses, information about mobile app usage, device type, and performance metrics); (b) damage or tamper with any part of the FM SDK; or (c) breach any security measure for the FM SDK.  FM may take remedial action if any Ads violate any requirements of this Agreement (including immediately suspending access to the FM SDK and termination of this Agreement), however FM has no obligation to review any Ads for accuracy or potential liability. 

 

11.    Representations and Warranties.  Each party represents, warrants and covenants to the other party that: (a) it has the full power and authority to enter into this Agreement; (b) the execution of this Agreement and performance of its obligations under this Agreement does not violate any other agreement to which it is a party; and (c) this Agreement constitutes a legal, valid and binding obligation when executed and delivered. 

 

12.    Disclaimers and Limitation of Liability. EXCEPT AS OTHERWISE EXPRESSLY STATED HEREIN, NEITHER PARTY MAKES ANY WARRANTY, EXPRESS OR IMPLIED, AND ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY ARE HEREBY DISCLAIMED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE AND NON-INFRINGEMENT. FM PROVIDES NO ASSURANCES THAT PUBLISHER WILL ACHIEVE ANY SPECIFIC BUSINESS RESULTS FROM USE OF THE FM SDK.  FM AND ITS SUPPLIERS, LICENSORS AND PARTNERS DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE FM SDK WILL BE CORRECT, UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THEY ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.  EXCEPT FOR LIABILITIES ARISING FROM PUBLISHER’S INDEMNIFICATION OBLIGATIONS, EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, OR PUBLISHER’S BREACH OF THE LICENSE GRANT OR RESTRICTIONS UNDER THIS AGREEMENT, NEITHER PARTY WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY, FOR ANY PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL, RELIANCE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST BUSINESS, REVENUE, OR ANTICIPATED PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR DATA, OR OTHER PECUNIARY LOSS, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER OR NOT A PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. EXCEPT FOR LIABILITIES ARISING FROM FM’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, OR FM’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT WILL FM’S LIABILITY UNDER THIS AGREEMENT EXCEED $500.  THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT INCREASE THE FOREGOING LIMIT.  THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

 

13.    Indemnification.  Each party (the “Indemnifying Party”) will defend, indemnify and hold harmless the other party and its officers, directors, employees and agents (each, an “Indemnified Party”) from all damages, losses, costs (including reasonable attorneys’ fees), or other expenses arising from third-party claims, actions, suits or proceedings against an Indemnified Party to the extent arising out of or related to the Indemnifying Party’s (a) breach or alleged breach of this Agreement, (b) infringement of a third party’s U.S. patent, trademark, trade secret or copyright in connection (i) with respect to FM, the FM SDK provided hereunder, when used as permitted by this Agreement, and (ii) with respect to Publisher, the Ads and other creative, technology, data (including, without limitation, Service Data) and materials provided or utilized by Publisher in connection with the FM SDK hereunder, or (c) gross negligence or willful misconduct in connection with this Agreement. The Indemnified Party will give the Indemnifying Party timely written notice of the claim for which indemnity is sought and control of the disposition thereof. The Indemnified Party will cooperate with the Indemnifying Party’s reasonable requests (at the Indemnifying Party’s expense) in connection with the defense and settlement of such claim.  The Indemnifying Party will not settle any claim for which indemnity is sought unless: (y) such settlement includes an unconditional release of the Indemnified Party from all liability on the claim, or (z) the Indemnified Party gives its prior written consent, which will not be unreasonably withheld. FM’s indemnity obligations under Section 13(b)(i) will not apply with respect to any claim if and to the extent based on or arising out of: (A) FM’s compliance with specifications or requirements provided by Publisher; (B) the combination or use of the FM SDK with technology or services not supplied by FM; (C) any modification or alteration of the FM SDK (other than by or on behalf of FM); or (D) where Publisher permits the allegedly infringing activity to continue after being notified thereof, or after being informed of modifications that would have avoided the alleged infringement. In the event of a claim, demand, action, or preceding that the FM SDK infringes or misappropriates any third party intellectual property right or, if in FM’s reasonable opinion such claim is likely to occur, FM has the right, at FM’s sole cost and expense, to either: (1) obtain the right to continued use of the affected portion of the FM SDK; or (2) modify or replace the affected portion of the FM SDK to eliminate the infringement or misappropriation.  If FM is unable to achieve the foregoing (1) or (2), in a commercially reasonable manner, FM may terminate the Agreement immediately upon written notice to Publisher without liability thereafter.  The provisions of this Section 13 constitute Publisher’s sole remedy and FM’s exclusive liability related to the FM SDK with respect to any infringement, misappropriation, or violation of any intellectual property right. 

 

14.    Governing Law; Arbitration. Publisher and FM agree to submit any dispute arising between them, including the determination of the scope or applicability of this Agreement to arbitrate, to binding individual arbitration administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. This paragraph will not operate to limit (a) FM’s right to bring a claim in court for infringement or other misuse of intellectual property rights, including, without limitation, such claims seeking injunctive relief, or (b) either party's right to enforce, to the extent necessary, an arbitrator's judgment in a court of law.  Publisher and FM agree that the arbitrator will administer and conduct any arbitration in accordance with California law, including the California Code of Civil Procedure, and that the arbitrator will apply California law to any dispute or claim, without reference to rules of conflict of law.  To the extent that the Comprehensive Arbitration Rules and Procedures conflict with California law, California law will take precedence.  Publisher and FM agree that any arbitration under this Agreement will be conducted in Santa Clara County, California and that the decision of the arbitrator will be in writing.  The arbitrator’s decision regarding the claims will be final and binding upon the parties and will be enforceable in any court having jurisdiction thereof.  Publisher and FM agree that each party will be responsible for paying such party’s own attorneys’ fees and costs.  Exclusive venue for any action not subject to arbitration hereunder will lie in the state and federal courts located in California and both parties hereby submit to the jurisdiction of such courts; provided that either party will at all times have the right to commence proceedings in any other court of its choice with the appropriate jurisdiction for interim injunctive relief.

 

15.    International Compliance.  Publisher will not use the FM SDK to serve Ads from or target Ads to, countries, entities, or individuals subject to U.S. trade sanctions or other U.S. export control laws. Publisher represents and warrants that Publisher will not use the FM SDK in connection with any Publisher network that is distributed or otherwise made available to any countries, entities, or individuals subject to U.S. trade sanctions or other U.S. export control laws. Further, Publisher represents and warrants that it (a) is not located in, under the control of, or a national or resident of any country to which the United States has embargoed goods or services; (b) is not identified as a “Specially Designated National” by the Office of Foreign Assets Control; (c) is not placed on the U.S. Commerce Department’s Denied Persons List; and (d) will not access or use the FM SDK if any applicable laws prohibit Publisher from doing so in accordance with this Agreement.

 

16.    Miscellaneous.  The parties are independent contractors with respect to each other.  This Agreement does not constitute and will not be construed as constituting a partnership or joint venture among the parties hereto, or an employee-employer relationship.  Nothing in this Agreement will give or is intended to give any rights of any kind to third parties.  Publisher may not assign or transfer this Agreement, in whole or in part, without FM’s prior written consent.  Any assignment in contravention of this provision will be null and void.  This Agreement will be binding on all permitted assignees and successors in interest. During the Term and for one (1) year thereafter Publisher agrees that it will not, directly or indirectly, solicit, induce, or encourage any employee, contractor or consultant of FM to leave FM or terminate their employment, engagement, or relationship with FM for any reason. For the avoidance of doubt, it will not be deemed a violation of this Section if the initial solicitation to which such individual responds is a general advertisement not specifically targeted to FM’s employees, contractors, or consultants; the FM employee, contractor or consultant contacts Publisher on his or her own initiative; the FM employee, contractor or consultant is directly referred to the Publisher by third party search firms, employment agencies, or other similar entities; or the FM employee, contractor, or consultant is engaged in ongoing communication with Publisher regarding future employment with Publisher, so long as such communications commenced prior to the Effective Date of this Agreement. Neither party may use or disclose the other party’s name, mark, or logo without the other party’s prior written consent; provided however, FM may use Publisher’s name, mark or logo (as provided by Publisher), in its marketing materials, sites and customer lists. This Agreement contains the entire agreement of the parties regarding the subject matter described herein, and all other promises, representations, understandings, arrangements and prior agreements related thereto, whether written or oral, are merged herein and superseded hereby. Except as may be otherwise set forth herein, all notices, requests, demands and other communications hereunder will be in writing and will be deemed to have been duly given: (a) on the next day if delivered personally to such party; (b) on the date three (3) days after mailing if mailed by registered or certified mail; or (c) on the next day if delivered by courier.  FM will send all notices to Publisher to the address provided by Publisher to FM.  Publisher will send all notices to FM via recognized overnight courier or certified mail, return receipt requested to: General Counsel, Fractional Media, Inc., 530 Lytton Avenue, 2nd floor, Palo Alto, California 94301. If any provision of this Agreement is invalid or unenforceable in any jurisdiction, the other provisions herein will remain in full force and effect in such jurisdiction and will be liberally construed to effectuate the purpose and intent of this Agreement, and the invalidity or unenforceability of any provision of this Agreement in any jurisdiction will not affect the validity or enforceability of any such provision in any other jurisdiction. The waiver of any breach of any provision of this Agreement will be effective only if in writing.  No such waiver will operate or be construed as a waiver of any subsequent breach.  This Agreement will not be construed against the party preparing it, but will be construed as if both parties jointly prepared this Agreement and any uncertainty and ambiguity will not be interpreted against any one party. A printed version of this Agreement and of any notices given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.    FM reserves the right to modify the terms contained in this Agreement in its sole discretion, from time to time, and any changes will be effective upon providing notice to Publisher by way of email or posting on the FM website and Publisher waives the right to receive additional notice of such changes.  Publisher’s continued use of the FM SDK following notice will constitute Publisher’s acceptance of the updated terms.  If Publisher does not agree to any changes, Publisher’s sole and exclusive remedy is to terminate the Agreement and immediately suspend all use of the SDK.