Yolla Media Services Agreement
This Services Agreement (this “Agreement”) sets forth the legally binding terms between you (the “Publisher”) and Yolla Media, LLC (“Yolla Media”) for use of the Services (as defined below). By accessing and using the Services, you agree to comply with and be bound by this Agreement. As used in this Agreement, “you” or “Publisher” means the individual or entity using the Services and “we”, “us”, “Yolla” or “Yolla Media” means Yolla Media, LLC
Amendments. We are constantly changing and improving the Services. We may add or remove functionalities or features of the Services at any time or cease to provide certain Services, in each case with or without notice to you. We may amend this Agreement at any time by posting a notice of the updates on the Yolla Media Portal found at portal.yollamedia.com (as defined below). If we believe the changes are material, we may also try to reach you via email.
Services and Exclusivity. Yolla Media shall have the exclusive worldwide right to represent Publisher during the Term in connection with ad sales, ad placement, and ad revenue optimization services and other services related thereto (the “Services”) for the website(s) designated by Publisher during the Services enrollment process (the “Site”). Publisher shall not appoint any other third party to provide similar Services for the Site during the Term (as defined below) of this Agreement, including on mobile, table or other platforms on which the Site is accessed.
Performance of Services. The Services may include without limitation: (a) selling internet based advertising on the Site, including without limitation banner advertisements, text based advertisements, and pre and post roll video advertisements (collectively, the “Ads”), (b) recommending the layout for the Site, including placement, size and formats for Ads; (c) embedding the our software codes necessary to display Ads on the Site or otherwise use the Services (the “Yolla Media Codes”); (d) optimizing the value of each Ad impression on the Site; (e) making available earnings and Ad analytics applicable to the Site as relates to the Services for your review. We reserve the right, in our sole discretion, to include or cease providing the Services at any time, subject to notice as may be required herein.
Implementation of Services. We shall maintain a website which you can use to enroll for the Services, manage your account and review information regarding the Services and related customer service platforms (the “Yolla Media Portal”). You agree to comply with any technical and implementation requirements of Yolla Media made known to you either via the Yolla Media Portal or otherwise in writing, including embedding the Yolla Media Codes on the Site according to instructions and not modifying the Yolla Media Codes in any manner. You further agree to comply with any third party terms and conditions required to receive the Services, which may include terms for Ad Networks used by Yolla Media, (for example, Google DoubleClick AdExchange terms and/or policies), or terms for third party software or technology (such as a video player). We will strive to make any third party policies available to you either via the Yolla Media Portal or otherwise.
Term. This Agreement will be effective as of the date Publisher has provided the Client Account Information and continue until terminated as provided in this Agreement (the “Term”). “Client Account Information” is that necessary enrollment information reasonably requested by Yolla Media to provide the Services and access and modify the Site, including without limitation, user names, passwords and bank information for payment. You may terminate this Agreement at any time by sending written notice of at least 3 business days to Yolla Media at email@example.com. Yolla may terminate this Agreement, or suspend or terminate all or part of the Services, at any time by providing notice to Client.
Publisher Payments. Unless otherwise agreed to by Yolla Media and Publisher, Yolla Media shall pay to Publisher a monthly payment equal to at least seventy-five (75%) of the Net Revenue generated during each month of the Term. “Net Revenue” is that revenue received by Yolla Media attributable to the Site generated from the Services net of any amounts paid to a third party by Yolla Media in connection with the Services, such as vendor fees. The monthly payment payable to the Publisher shall be made within 30 days after the end of each calendar month during the Term.
Accounting. Yolla Media’s calculation of amounts due Publisher under this Agreement shall be final and nonbinding, absent manifest error. In the event that Yolla Media believes any component of the amounts due Publisher have been generated in violation if any term or condition this Agreement then Yolla Media shall have the right to deduct from amounts due Publisher that such amount.
Site Compliance. We will have no obligation to provide Ads or other Services if the Site is not compliant with the requirements of this Agreement, including any Yolla Media policies. If we become aware and determine in our sole discretion that the Site is not in compliance with this Agreement or any of the Yolla policies, we may terminate this Agreement and/or suspend the Services immediately.
You agree to ensure that the Site:
(i) does not violate the intellectual property rights or any other rights of any third party; (ii) does not violate any applicable law; (iii) does not contain any content that is pornographic, obscene or otherwise violates this Agreement; (iv) does not encourage or require anyone to click on Ads, (v) includes appropriate disclosures of any compensation related to a product, service or advertiser in any post or article according to FTC guidelines and industry standards, and (vi) complies with any Third Party Terms.
Prohibited Actions. You will not, and will not allow any third party to: (a) directly or indirectly access, launch and/or activate the Services through or from, or otherwise incorporate the Services in, any software application, website or other means other than the Site; (b) transfer, sell, lease, syndicate, sub-syndicate, lend, the Services or to them; (c) directly or indirectly generate impressions of or clicks on Ads, through any automated, deceptive, fraudulent or other invalid means (such as click spam, robots, macro Services, and Internet agents); (d) modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Services, Yolla Media’s then current protocol for accessing and implementing the Services, or any other Yolla Media technology, content, data, routines, algorithms, methods, ideas design, user interface techniques, software, materials, and documentation; (e) remove, deface, obscure, or alter Yolla Media’s copyright notice, trademarks or other proprietary rights notices affixed to or provided as a part of the Services or any other Yolla Media technology, software, materials and documentation; (f) create or attempt to create a substitute or similar service or product through use of or access to any of the Services or proprietary information related thereto; or (g) use any feature or functionality of the Services that could be so used, to personally identify and/or personally track individual end users or any other persons.
Use of Information. We agree not to use any of Publisher’s confidential information for any purposes other than to provide the Services without obtaining your prior written consent. You will protect any Services accounts, usernames or passwords and take full responsibility for your own, and third party, use of any accounts, usernames or passwords for the Services. You will obtain Yolla Media’s prior written consent before granting any third party use of the Services. If you permit any third party to access your Services account, you agree to be liable for any such third party usage. Any data collected or accessed through the Services must be directly accessible by Yolla Media. You agree not to use an intermediary who has direct access to data arising from the Services.
License to Services. We grant to Client a limited, revocable, non-transferable, non-exclusive and non-sublicensable license during the Term to use the Services solely for the purpose of displaying Ads and optimizing revenue on the Site. We do not grant any right, title or interest (including, without limitation, any implied license) in or to any Yolla Media intellectual property rights; and all rights not expressly granted herein are reserved to Yolla Media, including without limitation any video or other content produced or acquired by Yolla Media or its affiliates that is licensed for display on the Site.
Confidentiality; Publicity. Each party agrees not to disclose the other party’s Confidential Information without the other party’s prior written consent. “Confidential Information” includes without limitation: (a) all software, technology, programming, specifications, materials, guidelines and documentation relating to the Services, including the existence and content of this Agreement and any information provided pursuant to the Agreement; (b) any statistics relating to the performance of the Services; (c) any other information designated in writing by either party as “Confidential” or an equivalent designation; and (d) information disclosed under circumstances that a reasonable person should know such information is confidential/proprietary.
During the Term of this Agreement, you agree not to provide any information obtained or collected with respect to the Services to any third party providing services similar to the Services without obtaining prior consent from Yolla Media.
Confidential Information does not include information that has become publicly known through no breach by the receiving party, or information that has been (i) independently developed without access to the disclosing party’s Confidential Information as evidenced in writing; (ii) rightfully received by the receiving party from a third party; or (iii) required to be disclosed by law or by a governmental authority.
Limitation of Liability. NEITHER PARTY WILL BE LIABLE TO THE OTHER OR ANY THIRD-PARTY CLAIMANT FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA COLLECTED THROUGH THE SERVICES),OR INCIDENTAL DAMAGES, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE LIMITATIONS OR EXCLUSIONS IN THIS AND THE FOREGOING PARAGRAPH MAY NOT APPLY. In any event, Yolla Media’s total cumulative liability to Publisher for any loss or damages resulting from any claims, demands, or actions arising out of or relating to this Agreement will not exceed the net amount paid to Publisher by Yolla Media in the six month period immediately preceding the date of the claim.
Yolla Media Representations and Warranties; Disclaimer. We represent and warrant that: (i) we have the power and authority to grant the rights and perform the obligations to which we commit herein; and (ii) the Services will not knowingly violate the intellectual property rights of any third party. We do not represent or warrant that the Services are reliable, accurate, complete, or otherwise free from defects. Accordingly, the Services are available for use “as is”, and any use thereof will be undertaken solely at Publisher’s own risk. Yolla Media does not give any warranties or otherwise promise that the Services will be of satisfactory quality, or that the Services will be fit for any particular purpose or generate a guaranteed amount of Net Revenue.
Publisher Representations and Warranties. You represent and warrant that, if you are an individual, you are at least 18 years old, and if you represent a company, that company is appropriately licensed and is legally permitted to conduct business. You further represent and warrant that (i) you have and will maintain throughout the Term all required end user consents as may be required by applicable law; (ii) you have and will maintain any and all consents, rights, authorizations and licenses, including without limitation, copyright, trademark, patent, publicity or other rights, that are required with respect to the Site to permit Yolla Media to perform the Services (including any rights needed to host, cache, route, transmit, store, copy, modify, distribute, perform, display, reformat, excerpt, analyze, and create algorithms from and derivative works of Ads or the Site); (ii) you will not advertise anything illegal or engage in any illegal or fraudulent business practice; (iii) all of the information provided by you to Yolla Media to enroll in the Services is correct and current; (iv) you have all necessary rights, power, and authority to enter into this Agreement and to perform the acts required of Client by this Agreement; and (v) you have complied and will continue to comply with all applicable laws, statutes, ordinances, and regulations (including without limitation the CAN-SPAM Act of 2003 and any relevant data protection or privacy laws) in operation of the Site.
Indemnification. You agree to defend, hold harmless and indemnify Yolla Media and its affiliated companies, and each of their officers, directors, employees, agents, licensees (collectively, the “Yolla Media Indemnitees”) from and against any and all liabilities, losses, damages, costs and expenses (including reasonable legal fees and expenses) relating to or arising out of or from (a) Publisher’s use or inability to use the Services; (b) Publisher’s breach or violation of any term or condition of this Agreement; or (c) Publisher’s violation of any applicable laws, rules or regulations.
Governing Law; Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to the conflicts of laws provisions thereof. Any claims, legal proceeding or litigation arising in connection with the Agreement will be brought solely in the federal or state courts located in the borough of Manhattan, New York, and Client consents to the exclusive jurisdiction of such courts. CLIENT WAIVES ANY RIGHT TO LITIGATE ANY CLAIM ARISING UNDER THIS AGREEMENT OR RELATING TO THE SERVICES ON A CLASS ACTION, JOINT OR CONSOLIDATED BASIS OR ON BASES INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC (SUCH AS A PRIVATE ATTORNEY GENERAL), OTHER CLIENTS, OR ANY OTHER PERSONS. Neither party’s waiver of any default is a waiver of any subsequent default. Unenforceable provisions will be modified to reflect the parties’ intention, and remaining provisions of the Agreement will remain in full effect.
Assignment; Survival. Publisher may not assign any of its rights hereunder and any such attempt is void other than in the event of a merger, acquisition or sale of all or substantially all or Publisher’s. Notwithstanding termination of this Agreement, the terms and conditions contained in this Agreement that by their sense and context are intended to survive the performance hereof by the parties hereunder shall survive and continue in effect.
Independent Contractor Relationship. You understand and agree that provision of Services shall not be construed as creating or implying any relationship of agency, partnership or joint venture between you and Yolla Media and that Yolla Media is providing the Services to you as an independent contractor.
Language. This Agreement shall be executed in the English language. If there is any discrepancy between the provisions of the English and another other language version of this Agreement, the provisions of the English version shall prevail and be used in interpreting this Agreement in all cases, and the provisions of any other language version shall not affect the interpretation of this Agreement.
Other Services; Supplemental Terms. From time to time Yolla Media may make available additional or different Services that require additional or different terms and conditions. In that event, you will be notified of such supplemental terms when enrolling for those Services, and those terms will become part of this Agreement.
Incorporation of Other Agreements. Yolla Media’s Standard Terms and Conditions and Data Transfer Agreement, each as published on the Portal and updated from time to time, are integral parts of this Agreement and incorporated herein by reference. This Agreement constitutes the entire and only agreement between Client and Yolla Media and supersedes all other agreements, representations, warranties and understandings with respect to the Services.
DATA TRANSFER AGREEMENT
ADDENDUM TO THE YOLLA MEDIA SERVICES AGREEMENT
This Data Transfer Agreement is made by and between Yolla Media, LLC (hereinafter “data exporter”) and the Publisher (hereinafter “data importer”), each a “party”; together “the parties” and is incorporated by reference into the Yolla Media Services Agreement.
The following are standard contractual clauses for the transfer of personal data from the EEA to third countries (controller to controller transfers):
For the purposes of the clauses: (a) “personal data”, “special categories of data/sensitive data”, “process/processing”, “controller”, “processor”, “data subject” and “supervisory authority/authority” shall have the same meaning as in Directive 95/46/EC of 24 October 1995 (whereby “the authority” shall mean the competent data protection authority in the territory which asserts jurisdiction over the data exporter); (b) “the data exporter” shall mean the controller who transfers the personal data; (c) “the data importer” shall mean the controller who agrees to receive from the data exporter personal
data for further processing in accordance with the terms of these clauses and who is not subject to a third country’s system ensuring adequate protection; (d) “clauses” shall mean these contractual clauses, which are a free-standing document that does not incorporate commercial business terms established by the parties under separate commercial arrangements.
The details of the transfer (as well as the personal data covered) are specified in Annex B, which forms an integral part of the clauses.
The data exporter warrants and undertakes that:
The data importer warrants and undertakes that:
III. Liability and third party rights
These clauses shall be governed by the law of the country in which the data exporter is established.
VII. Variation of these clauses
The parties may not modify these clauses except to update any information in Annex B, in which case they will inform the authority where required. This does not preclude the parties from adding additional commercial clauses where required.
VIII. Description of the Transfer
The details of the transfer and of the personal data are specified in Annex B. The parties agree that Annex B may contain confidential business information which they will not disclose to third parties, except as required by law or in response to a competent regulatory or government agency, or as required under clause I(e). The parties may execute additional annexes to cover additional transfers, which will be submitted to the authority where required. Annex B may, in the alternative, be drafted to cover multiple transfers.
DATA PROCESSING PRINCIPLES
DESCRIPTION OF THE TRANSFER
The personal data transferred concern the following categories of data subjects: visitors to the website(s) of the importer
Purposes of the transfer
The transfer is made for the following purposes: serving interest-based advertising on the website(s) of the importer
Categories of data
The personal data transferred concern the following categories of data: cookies used to track visits to the importer’s website(s) and also websites of third-parties
The personal data transferred to be disclosed only to the following recipients or categories of recipients: Google, Inc. and other third parties that provide advertising technology or participate in Google’s advertising network
The personal data transferred concern the following categories of sensitive data: none.