These terms and conditions, together with any order (“Order”) signed by the Parties and incorporating these terms and conditions by reference, constitute a legally binding agreement (as may be amended, restated, supplemented or modified from time to time, collectively, the “Agreement”) between “Media Partner”, a company that displays content featuring products and/or services, and Flipp Operations Inc. (“Flipp”) who operates, among other things the Flipp Marketplace (as defined herein). Any reference to Flipp herein shall refer to Flipp and/or any or all of its Affiliates.
In consideration of the mutual promises and covenants set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:
- Media Partner and/or its Affiliates own or operate websites, web pages and services on Media Partner Properties;
- Flipp owns and operates the Flipp Marketplace; and
- Media Partner and Flipp are entering into this Agreement so that Media Partner can use Flipp Marketplace on selected Media Partner Properties.
2.1 Construction and Order of Precedence: This Agreement consists of: (i) the Order, (ii) this document, (iii) any policies, procedures, or terms and conditions included or referenced in this document, and (iv) all Schedules attached hereto, all of which forms a part of this Agreement. Any documents referenced in (i)-(iv) above shall include such documents that have been signed by Flipp Corporation. All such documents were assigned to Flipp Operations Inc. by Flipp Corporation in accordance with the terms of this Agreement. To the extent there is a conflict or inconsistency between any of the documents forming part of this Agreement, the conflict or inconsistency shall be resolved in the order as presented in this Section 2.1.
2.2 Schedule(s): Schedule(s) attached hereto include: (i) Schedule A – Definitions.
2.3.1 Headings: Headings of sections are inserted for convenience of reference only and do not affect the construction or interpretation of this Agreement.
2.3.2 Including: Where the word “including” or “includes” is used in this Agreement, it means “including (or includes) without limitation”.
2.3.3 No Strict Construction: The language used in this Agreement is the language chosen by the Parties to express their mutual intent, and no rule of strict construction shall be applied against any Party.
2.3.4 Number and Gender: Unless the context otherwise requires, words importing the singular include the plural and vice versa and words importing gender include all genders.
2.3.5 Time Periods: Unless otherwise specified, time periods within or following which any payment is to be made or act is to be done shall be calculated by excluding the day on which the period commences and including the day on which the period ends and by extending the period to the next Business Day following if the last day of the period is not a Business Day.
2.3.6 “Written” or “in writing”: Unless expressly stated otherwise, where any notice, demand, consent or communication is required “in writing” or in written form, either Party may provide such notice, demand, consent or communication in written form and delivered by courier, registered mail or electronic mail.
3.1 Native Modules: During the Term, Media Partner agrees to implement Flipp’s Native Modules on Media Partner Properties (“Media Partner Implementation”). Flipp agrees to provide the necessary assets to enable Media Partner to implement the Native Modules on the Media Partner Properties (“Flipp Assets”). In this Agreement, “Native Modules” shall mean modules placed on Media Partner Properties that display Digital Storefronts from the Flipp Marketplace to end-users who are browsing the Media Partner Properties.
3.2 Removal of Native Modules: Flipp reserves the right to review Media Partner’s implementation of the Native Modules and request removal thereof. Upon request, Media Partner agrees to remove such Native Modules immediately. In the event Media Partner removes a Native Module from one or more of its Media Partner Properties by its own accord, and unless otherwise agreed to by both parties in writing, Media Partner shall be required to provide 30 days’ prior written notice to Flipp (except in the case such Native Module is in violation of applicable law or infringes on a third party’s intellectual property rights).
3.3 Services: The services provided by Media Partner as described in this Section 3 shall be referred to throughout as the “Services”.
4. TERM AND TERMINATION
4.1 Term: This Agreement commences on the start date set out in the Order and continues until the end date specified in the Order (the “Term”).
4.2 Termination: This Agreement may be terminated by either Party for any reason by giving the other Party thirty (30) days’ written notice.
4.3 Termination for Material Default: This Agreement may be terminated immediately for Material Default. The Party terminating pursuant to this Section 4.3 shall provide written notice to the other Party stating the Material Default.
4.4 Survival: Sections 2, 5.4, 6.1.1, 6.2.1, 6.2.3, 6.3, 7, 8, and 9 shall survive termination and remain in full force and effect.
5. FEES; INVOICE; PAYMENT
5.1 Fees: Flipp will pay Media Partner for all Native Modules on a CPM basis. The fee for a Native Module shall be determined by dividing the total number of Viewable Impressions (which such number shall be determined based exclusively on Flipp’s reporting system) pertaining to such Native Module by one thousand, and multiplying such resulting amount by the CPM rate (“Service Fee”).
5.2 Reporting: Flipp will provide Media Partner with a report on a regular basis (i.e. weekly or on such other cadence as agreed between the parties) containing at least the following information: (a) total number of Viewable Impressions; and (b) the Service Fee(s) due to Media Partner. Media Partner will be deemed to have consented to the correctness of such report unless a dispute is communicated to Flipp in writing within 15 days of receiving the report. Media Partner agrees to cooperate with Flipp in all reasonable respects with regards to the report.
5.3 Payment: At or around the end of each month, Media Partner can reference the reporting dashboard for the total number of impressions delivered in the preceding month. Provided the Service Fee due and owing from Flipp in any given month is at least $300.00, within 90 days of the end of such month, Flipp will pay Media Partner the Service Fee via ACH, EFT, or other agreed-upon electronic means. If the Service Fee due and owing from Flipp is less than $300.00 for any given month, Flipp will roll such amount into the next month or months until the aggregate Service Fees for the aggregate months for which payment is outstanding is $300.00 or greater (the “Sufficient Aggregate Amount“). Within 90 days of the relevant month after the Sufficient Aggregate Amount is reached, Flipp will pay Media Partner the Service Fee via ACH, EFT, or other agreed-upon electronic means.
5.4 Taxes: Media Partner shall be solely responsible for collecting and remitting all applicable taxes due hereunder. Media Partner shall defend, indemnify and hold harmless Flipp against any claims or assertions by any relevant taxing authority in respect of such applicable taxes owed in connection with the Services rendered pursuant to this Agreement.
6. LICENSE GRANTS AND RESTRICTIONS; DATA
6.1 Ownership and Use of Media Partner Properties.
6.1.1 Media Partner owns Media Partner Properties: Media Partner and its Affiliates own and retain all right, title and interest to Media Partner Properties. All use of Media Partner Properties shall inure solely to the benefit of Media Partner and its Affiliates.
6.1.2 Media Partner grants license to Flipp: During the Term, Media Partner and its Affiliates grant to Flipp a royalty-free, non-exclusive, non-transferable, non-assignable and non-sublicensable right and license for the Native Modules to be placed on the Media Partner Properties.
6.2 Ownership and Use of Flipp Materials.
6.2.1 Flipp owns Native Modules: Flipp and its Affiliates own and retain all right, title and interest to, or has obtained the necessary rights to, Flipp Materials. All use of Flipp Materials shall inure solely to the benefit of Flipp and its Affiliates, or to the licensor of such rights, as applicable. Except for the limited rights to the Flipp Materials expressly granted to Media Partner hereunder, no other right or permission is granted.
6.2.2 Flipp grants license to Media Partner: During the Term, Flipp and its Affiliatesgrant to Media Partner a royalty-free, non-exclusive, non-transferable, non-assignable and non-sublicensable license to use the FlippMaterials solely as necessary for Media Partner to provide the Services as permitted under this Agreement, or otherwise as expressly permitted under this Agreement. Additionally, Media Partner’s Representative Parties shall be permitted to use the Flipp Materials solely as necessary for Media Partner to use the Services contemplated hereunder.
6.2.3 Restrictions: Except as expressly permitted in this Agreement or as otherwise permitted by Flipp in writing, Media Partner and its Representative Parties shall not:
18.104.22.168 Use the Flipp Materials for any other purpose without the express written consent of Flipp;
22.214.171.124 Remove, obscure, or alter any notice of copyright, trademark, or other proprietary right appearing in or on any item included with the Flipp Materials; and
126.96.36.199 Copy, modify, adapt, translate, prepare derivative works from, reverse engineer, disassemble, or decompile the Flipp Marketplace or otherwise attempt to discover any source code or trade secrets related to the Flipp Materials.
6.2.4 If Media Partner or its Representative Parties, in its or their sole discretion, make any suggestions for changes, modifications or improvements to the Flipp Materials or Flipp Marketplace (“Feedback”), all such Feedback shall be solely owned by Flipp. Media Partner and its Representative Parties shall do all that is necessary to assign the ownership of such Feedback to Flipp.
6.3.1 All data collected by Flipp in connection with the Native Module(s) (except for any data provided to Flipp by Media Partner) shall be exclusively owned by Flipp. Flipp shall not disclose any collected data to a third party in a manner that identifies Media Partner.
6.3.2 All data collected by Media Partner in connection with the Native Module(s) (except for any data provided to Media Partner by Flipp) shall be exclusively owned by Media Partner. Media Partner shall not disclose any collected data to a third party in a manner that identifies Flipp.
6.3.3 For greater certainty, all data collected in connection with the Native Module shall constitute Confidential Information of the applicable collecting Party.
7. CONFIDENTIAL INFORMATION
7.1 “Confidential Information” means any non-public information disclosed to a Party, or its Representative Parties (“Receiving Party“) in connection with or related to the provision or use of the Services during the Term, by the other Party, its Affiliates or its respective Representative Parties (“Disclosing Party“), either directly or indirectly, in writing, orally, by inspection of tangible objects or by data feed or other electronic means, that is marked or identified as “Confidential Information”, “Confidential” or “Proprietary”, or with similar designations, or would be reasonably considered confidential and/or proprietary.
7.2 However, Confidential Information shall not include information that (i) is or subsequently becomes publicly available without breach of any obligation owed to Disclosing Party; (ii) became known to Receiving Party, without confidentiality restrictions, prior to Disclosing Party’s disclosure of such information to Receiving Party pursuant to the terms of this Agreement, as shown by Receiving Party’s records; (iii) became known to Receiving Party from a source other than Disclosing Party other than by the breach of a confidentiality agreement or a contractual, legal or fiduciary obligation; or (iv) is independently developed by Receiving Party without any use of or reference to the Confidential Information. It will be understood that the burden of proving that information is not Confidential Information rests with the Receiving Party.
7.3 Receiving Party and its Representative Parties shall: (i) refrain from disclosing, reproducing, summarizing and/or distributing Confidential Information, except as expressly provided in Sections 7.4 and 7.5 of this Agreement or otherwise expressly permitted by Disclosing Party in writing; (ii) refrain from using or attempting to use any Confidential Information except as necessary in connection with the purpose for which such Confidential Information is disclosed to the Receiving Party; and (iii) take reasonable security precautions, at least as great as the precautions it takes to protect its own Confidential Information, but not less than reasonable care, to keep confidential the Confidential Information.
7.4 Receiving Party may disclose Confidential Information in accordance with a judicial or other governmental order, provided that Receiving Party (i) gives Disclosing Party reasonable written notice prior to such disclosure to allow Disclosing Party a reasonable opportunity to seek a protective order or other appropriate remedy. If such protective order or other remedy is not obtained, or if Disclosing Party waives compliance with the provisions hereof, Receiving Party agrees to disclose or furnish only that portion of the Confidential Information that Receiving Party is advised by written opinion of counsel is legally required to be disclosed or furnished and, to the extent reasonably possible in the circumstances, Receiving Party agrees to use best efforts to obtain written assurance from the applicable judicial or governmental entity that it will afford the Confidential Information the highest level of protection afforded under applicable law or regulation.
7.5 Receiving Party may disclose Confidential Information only to its Representative Parties on a need-to-know basis for the sole purpose of performing or using the Services and provided such Representative Parties are bound by an agreement of confidentiality and non-use obligations having terms similar to those in this Section 7. Receiving Party shall be responsible for and liable to Disclosing Party for any breach of this Section 7 by its Representative Parties.
7.6 All Confidential Information shall at all times remain the personal property of the Disclosing Party and Receiving Party shall, at Disclosing Party’s request, return all Confidential Information, or at Receiving Party’s option, certify destruction of same within ten (10) Business Days of the request.
7.7 Receiving Party acknowledges that the disclosure of any aspect of the Confidential Information may give rise to irreparable injury to Disclosing Party inadequately compensable in damages. Accordingly, Disclosing Party may seek injunctive relief to prevent the unauthorized use or disclosure of the Confidential Information in addition to any other legal remedies which may be available to it, and Receiving Party hereby consents to the obtaining such injunctive relief. Receiving Party shall advise the Disclosing Party promptly in writing of any unauthorized disclosure or use of Confidential Information.
8. LIMITATION OF LIABILITIES; DISCLAIMER
8.1 IN THIS SECTION 8, THE TERM “PARTY” SHALL INCLUDE ITS REPRESENTATIVE PARTIES.
8.2 EXCEPT FOR ANY REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT, TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTY EXPRESSLY DISCLAIMS, AND THE OTHER PARTY HEREBY EXPRESSLY WAIVES, ALL OTHER REPRESENTATIONS AND WARRANTIES (EXPRESS OR IMPLIED), INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF TITLE, AND FREEDOM FROM INFRINGEMENT. EXCEPT AS EXPRESSLY PROVIDED HEREIN, FLIPP DOES NOT WARRANT AND SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS THAT THE OPERATION OR USE OF THE NATIVE MODULES WILL BE UNINTERRUPTED, ACCURATE, OR ERROR-FREE.
8.3 EXCEPT FOR EITHER PARTY’S BREACH OF SECTION 7 AND MEDIA PARTNER’S MISUSE OR MISAPPROPRIATION OF FLIPP’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER SUCH ACTION OR CLAIM IS BASED UPON FAULT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), BREACH OF CONTRACT, STATUTE, REGULATION, OR ANY OTHER THEORY OF LAW OR BREACH OF WARRANTY BY, OR STRICT LIABILITY OF, THAT PARTY), FOR ANY: (A) INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS OR REVENUE RELATED IN ANY WAY TO THIS AGREEMENT, EVEN IF ADVISED OF SUCH POSSIBILITY; (B) FAILURE OR DELAY IN THE PERFORMANCE OF ITS OBLIGATIONS BY REASON OF ANY CAUSE OR EVENT BEYOND THE REASONABLE CONTROL OF THE PARTY THAT COULD NOT HAVE BEEN REASONABLY FORESEEN AND PREVENTED BY MEANS REASONABLY AVAILABLE TO IT; OR (C) DAMAGES, WHETHER ON A PER CLAIM OR AGGREGATE BASIS, IN EXCESS OF THE TOTAL AMOUNT PAID BY FLIPP TO MEDIA PARTNER HEREUNDER DURING THREE (3) MONTHS PRIOR TO THE TIME THE DAMAGES, IF ANY, AROSE.
9. GENERAL PROVISIONS
9.1 Press Release: Neither Party may issue a press release to announce the relationship established by this Agreement without the written consent of the other Party.
9.2 Entire Agreement: This Agreement constitutes the entire Agreement between the Parties with respect to the subject matter contained herein and supersedes all previous and contemporaneous agreements, proposals and communications, written or oral, between Media Partner and Flipp. The Parties expressly disclaim any reliance on any and all communications, discussions, proposals and/or agreements (verbal or written) between the Parties. There are no other verbal agreements, representations, warranties, undertakings or other agreements between the Parties. This Agreement will not be modified by any written agreement dated after the Effective Date unless signed by both Parties by their duly authorized representatives. Any previous agreements between Media Partner and Flipp for Services are terminated and of no further force, except for the provisions indicated therein as surviving termination or expiration. Further, Media Partner acknowledges and agrees that Flipp will not be bound by any term, condition or other provision which is different from or in addition to the provisions in this Agreement (whether or not it would materially alter this Agreement) including, for greater certainty, any term, condition or other provision: (a) submitted by or on behalf of Media Partner in any order, purchase order, vendor form, banking form, receipt, acceptance, confirmation, correspondence, shrink-wrap agreement, click-through agreement or other document, (b) related to any online registration or questionnaire, (c) related to any invoicing process that Media Partner, or any other party on behalf of Media Partner, requires Flipp to complete.
9.3 Severability: If any provision of this Agreement is held or made invalid or unenforceable for any reason, such invalidity shall not affect the remainder of this Agreement, and the invalid or unenforceable provisions shall be replaced by a mutually acceptable provision, which being valid, legal and enforceable comes closest to the original intentions of the Parties hereto and has like economic effect.
9.4 No Assignment: Neither Party may assign or otherwise transfer any part of this Agreement without the prior written consent of the other Party. Any assignment or attempted assignment by either Party without the other Party’s written consent shall be null and void. Notwithstanding the foregoing, without securing such prior consent, either Party shall have the right to assign this Agreement and the obligations hereunder to any Affiliate or to any successor of such Party by way of merger, consolidation, reorganization or in connection with the acquisition of at least a majority of the business and assets of the assigning Party, provided that: (a) the assigning Party provides the other Party with written notice when such transaction becomes public; (b) the successor or assignee agrees in writing to be bound by the obligations set forth herein; and (c) the assigning Party is not in material breach or default of this Agreement at the time of the assignment; and (d) the assignee is not a competitor of the non-assigning Party, as determined by the non-assigning Party acting reasonably.
9.5 Third Parties: Except as expressly set forth herein, nothing contained in this Agreement is intended to confer upon any person not a party hereto any rights, benefits or remedies of any kind or character whatsoever, and no such person shall be deemed a third-party beneficiary under this Agreement.
9.6 Relationship: This Agreement shall not create a relationship of partnership, joint venture, employment, agency, franchise or other form of agreement or relationship. The Parties shall only be considered as independent contractors.
9.7 No Waiver: No provision of this Agreement may be waived, except in writing executed by each of the Parties. No failure to exercise, or delay in the exercise of, a Party’s rights under this Agreement will constitute a waiver of such rights. No waiver of a provision of this Agreement will constitute a waiver of the same or any other provision of this Agreement other than as specifically set forth in such waiver.
9.8 Governing Law: This Agreement shall be governed and construed in accordance with the laws of (i) the state of Delaware and the federal laws of the United States applicable therein, if Media Partner is domiciled in the United States, or (ii) the province of Ontario and the federal laws of Canada applicable therein, if Media Partner is domiciled in Canada; excluding the application of any rule or principle of conflict of law that might otherwise refer construction, interpretation, or the resolution of any dispute to the laws of another jurisdiction. Where any dispute arises from this Agreement, including a breach of this Agreement, both Parties agree not to bring any legal action against the other Party in any jurisdiction except in (i) the state of Delaware if Media Partner is domiciled in the United States or (ii) the province of Ontario if Media Partner is domiciled in Canada. However, the foregoing shall not prevent either Party from seeking equitable relief or enforcing a judgment in another jurisdiction.
9.9 Notice: Each Party shall deliver all notices required hereunder in writing and addressed to the other Party at the address set forth herein (or to such other address that may be designated by the receiving party from time to time in connection with this Section). Each Party shall deliver all Notices by (i) personal delivery, (ii) nationally recognized overnight courier with fees prepaid, (iii) certified or registered mail with return receipt requested and postage prepaid or (iv) by email. A Notice is effective upon receipt by the receiving party if the party giving Notice has complied with this Section. Any Notice by Media Partner to Flipp shall also be sent by email to Flipp at email@example.com.
9.10 Counterparts: This Agreement may be executed in any number of counterparts, each of which is deemed an original, and all of which taken together constitute one and the same agreement. A counterpart may be delivered by email attachment (of a PDF document or similar format) or other electronic means which shall be as effective as hand delivery of the original executed counterpart.
“Advertiser” means any advertiser who provides flyers or other content to Flipp for placement on the Flipp Marketplace.
“Affiliate” means, with respect to an entity, any person or entity that directly or indirectly owns, is owned by, or is under common ownership with that entity. For purposes of this definition, ownership means control of more than a 50% interest in an entity.
“Business Day” means a working day for Advertiser and Flipp during the respective working hours.
“Confidential Information” has the meaning set out in Section 7.1.
“Cost Per Thousand Impressions (CPM)” means the mutually agreed rate paid by Flipp to Media Partner for each thousand Viewable Impressions of the Native Module.
“Digital Storefront(s)” means advertising content made available by Flipp to Media Partner through the Native Module.
“Disclosing Party” has the meaning set out in Section 7.1.
“Flipp Assets” shall have the meaning set out in Section 3.1.
“Flipp Marketplace” means Flipp’s proprietary dynamic flyer platform that brings the next-generation of digital shopping content to end-users, including (i) properties owned by operated by Flipp, (ii) the Media Partner Implementation, and (iii) other media partners’ web applications that use the Flipp Marketplace to distribute Digital Storefronts.
“Flipp Materials” collectively means all materials owned by or licensed to Flipp made available to Media Partner pursuant to this Agreement. For avoidance of doubt, Flipp Materials include Native Modules, Flipp Assets and Digital Storefronts.
“Initial Term” has the meaning set out in Section 4.1.
“Material Default” shall be deemed to have occurred if: (i) either Party materially fails to perform or comply with this Agreement, and fails to remedy such failure within 30 days following written notice; (ii) either Party goes into liquidation, receivership or administration or becomes bankrupt; (iii) either Party makes any arrangement for the benefit of its creditors; (iv) either Party admits its inability to pay its debts as they mature; or (v) either Party has a receiver appointed for any of its assets.
“Media Partner Implementation” shall have the meaning set out in Section 3.1.
“Media Partner Properties” means the web sites, web pages and services owned or operated by Media Partner or its Affiliates.
“Native Module” has the meaning set out in Section 3.1. For clarity, Native Module includes its output.
“Parties” shall mean Flipp and Media Partner and “Party” shall mean either one of them.
“Receiving Party” has the meaning set out in Section 7.1.
“Renewal Term” has the meaning set out in Section 4.1.
“Representative Parties” means, with respect to an entity, its Representatives, its Affiliates and its Affiliates’ Representatives.
“Representatives” means an entity’s employees, directors, officers, legal counsel, financial advisors (including accountants and auditors), agents, and contractors.
“Service” shall have the meaning set out in Section 3.
“Service Fee” shall have the meaning set out in Section 5.1.
“Term” shall have the meaning set out in Section 4.1.
“Viewable Impression” means an impression that meets the following criteria: (i) for ads less than 242,000 pixels, an impression occurs when 50% of the ad’s pixels are visible in the end-user’s browser window for a continuous 1 second; (ii) for ads greater than 242,000 pixels, an impression occurs when 30% of the ad’s pixels are visible in the end-user’s browser window for a continuous 1 second; and (iii) for in-stream video ads, an impression occurs when 50% of the ad’s pixels are visible in the end-user’s browser window for a continuous 2 seconds.