UPDATED: APRIL 30, 2013
BEACHFRONT.IO MARKETPLACE TERMS AND CONDITIONS
These Beachfront.io Marketplace Terms and Conditions (“Agreement”) between You and Beachfront.io Inc. (“Beachfront.io”) constitute the terms and conditions for your use of the Beachfront.io Marketplace program (the “Marketplace”). “You” or “Your” means any entity identified in an enrollment form submitted by the same or affiliated persons, and/or any agency, network or other third party that You have granted access to Your account, all of whom will be bound by this Agreement.
- Description of Program. The Marketplace allows You as a publisher to offer and sell Your available ad inventory (Your “Inventory”) to advertisers who are buyers in the Marketplace who desire to display and serve their ads (“Buyer Ads”) on the applications and sites that You designate (“Program Sites”), based upon the selling criteria selected by You via the Beachfront.io online user interface provided by Beachfront.io for accessing the Marketplace (“Marketplace Interface”).
- Revenue Share. The Marketplace allows you to monetize Your Inventory on your Program Sites by paying you a revenue share of the fees collected by Beachfront.io from buyers. If You are accepted as a publisher in the Marketplace, Beachfront.io will pay You a percentage of the “Net Marketplace Revenue” generated by Your Inventory. The amount resulting from applying the percentage to the Net Marketplace Revenue will be the “Revenue Share Fee.”
“Net Marketplace Revenue” means fees actually collected by Beachfront.io from third party advertisers whose Buyer Ads were served to Your Inventory, less any media buying fees or bid reductions, operating fees, fraud, charge backs, refunds, uncollected amounts, credit card processing fees and other reasonable deductions.
Beachfront.io will pay You the Revenue Share Fee within 60 days after the last day of the calendar month in which Beachfront.io received the applicable Net Marketplace Revenue, provided that no payments will be issued for any amount less than $100 U.S and any unpaid earnings will rollover and accrue to the next pay period. If You are both a Marketplace customer (under these this Agreement) and a Beachfront.io Platform customer (under the Beachfront.io Ad Serving Terms and Conditions), then at Beachfront.io’s election, Beachfront.io may offset the Net Marketplace Revenue owed to You by the amount of Ad Serving Fees owed to Beachfront.io.
- Implementation of Program. You will implement the Program in a manner that complies with the technical and implementation requirements provided by Beachfront.io from time to time, which may include integration or distribution of software, implementation of APIs or SDKs, complying with protocols and any other instructions contained in the Beachfront.io documentation (the “Protocol”).
- Your Obligations.
(a) Ads and Content. You are solely responsible for all of Your Inventory, the serving of Buyer Ads, and all aspects of Your Program Sites (including content and subject matter, editorial, text, graphic, audiovisual, and other content and any other information).
(b) Your Account. You will protect any Program accounts, usernames or passwords and take full responsibility for Your own, and third party, use of the same.
(e) Prohibited Actions. You will not, and will not allow any third party to: (a) directly or indirectly access, launch or activate the Program through or from, or otherwise incorporate the Program in, any software application, website or other means other than Your designated sites; (b) transfer, sell, lease, syndicate, sublicense or lend the Program; (c) directly or indirectly generate queries, or impressions of or clicks on ads, through any automated, deceptive, fraudulent or other invalid means (including, but not limited to, click spam, robots, macro programs, and Internet agents); (d) encourage or require end users or any other persons, either with or without their knowledge, to click on ads, including without limitation Ads, through offering incentives or any other methods that are manipulative, deceptive, malicious or fraudulent; (e) modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Program, Beachfront.io’s then current Protocol, or any other Beachfront.io technology, content, data, routines, algorithms, methods, ideas design, user interface techniques, software, materials, and documentation; (f) remove, deface, obscure, or alter Beachfront.io’s proprietary rights notices affixed to or provided as a part of the Program, the Beachfront.io Protocol, or any other Beachfront.io technology, software, materials and documentation; (g) create or attempt to create a substitute or similar service or product through use of or access to any of the Program or proprietary information related thereto; (h) use any feature or functionality of the Program, or include anything in Your Content or Ads, that could be used to personally identify or personally track individual end users or any other persons; or (i) engage in any action or practice that reflects poorly on Beachfront.io or otherwise disparages or devalues Beachfront.io’s reputation or goodwill. Beachfront.io may terminate the Program, immediately upon written notice if You breach this Section.
(f) No Endorsement. You acknowledge and agree that Beachfront.io is not affiliated with or responsible for any third-party products/services You may choose to manage with the Program. Beachfront.io reserves the right, but will have no responsibility, to edit, modify, refuse to post or remove any Disclaimed Content, in whole or in part, that in Beachfront.io, in its sole and absolute discretion, deems is objectionable, erroneous, illegal, fraudulent or otherwise in violation of this Agreement.
(g) Compliance. Beachfront.io may investigate any activity that may violate this Agreement. If You violate this Agreement or any Policies, Beachfront.io may in its sole discretion, without notice, terminate this Agreement, or suspend or terminate the participation of Your Program Site in all or part of the Program. For any other violations, Beachfront.io will give you 14 days notice period to cure such violations, and if such violation is not cured within 14 days of Beachfront.io sending such notice to You, Beachfront.io may terminate this Agreement, or suspend or terminate the participation of Your Program Site in all or part of the Program. In addition, Beachfront.io may terminate this Agreement, or suspend or terminate the participation of Your Program Site in all or part of the Program, with or without cause, upon 90 day’s prior notice. Beachfront.io may refuse to process a request for Your Ads (“ Requests”) that are not sent in compliance with the requirements of this Agreement.
(h) Advertisers. You are solely responsible for all aspects of the Program Sites and Your Inventory, including handling all inquiries and disputes of any type or nature.
(a) Subject to the terms and conditions of this Agreement, You shall have the right during the Term to access and use the Program via the Program Interface solely for purposes of: (a) performing projections of advertising impression inventories that might be available through the Beachfront.io Platform, (b) uploading and storing Ads for delivery through the Beachfront.io Platform, (c) selecting targeting and delivery criteria for the delivery of Ads, and (d) receiving reports of Ads Requests, impressions and other data related to the delivery of Ads through the Beachfront.io Platform.
(b) During the Term, You grant Beachfront.io a license under all of Your applicable rights to host, serve, route and place Your Ads via the Program.
(c) Beachfront.io Attribution. You agree that Beachfront.io may include Beachfront.io Brand Features or other attribution on Your Ads transmitted by Beachfront.io in response to a Program Request.
- Term. This Agreement will be effective as of the date Beachfront.io activates Your Program account and will continue unless earlier terminated as provided in this Agreement. You may terminate this Agreement, with or without cause, at any time by sending written notice of Your desire to cancel Your participation in the Program to firstname.lastname@example.org (the “Term”). This Agreement will be deemed terminated ten business days after Beachfront.io’s receipt of Your notice. If Beachfront.io chooses to terminate the Program, Beachfront.io will provide You with 30 day’s prior notice thereof.
- Data Use.
(a) Data. In connection with the operation of the Program, Beachfront.io collects and receives data that Beachfront.io collects during delivery of Ads or performance of our obligations under this Agreement (“Data”). You agree that Beachfront.io may: (a) use such information for Beachfront.io’s internal business purposes; (b) disclose such information as may be required by law or legal process; and (c) use and disclose such information when it is aggregated with similar information relating to other Beachfront.io customers or end users, and when it does not specifically identify the Customer or end user. You may use Data that You receive for Your internal business purposes so long as such use is in compliance with all applicable privacy policies, laws, rules, regulations and industry self-regulatory regimes relating to the collection, use and disclosure of Data, and that You obtain any consents, authorizations and clearances from end users that may be required in connection therewith.
- Confidentiality; Publicity. You agree not to disclose Beachfront.io Confidential Information without Beachfront.io’s prior written consent. “Beachfront.io Confidential Information” includes without limitation: (a) all Beachfront.io software, technology, programming, specifications, materials, guidelines and documentation relating to the Program, 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 Program; and (c) any other information designated in writing by Beachfront.io as “Confidential” or an equivalent designation. Beachfront.io Confidential Information does not include information that has become publicly known through no breach by You or Beachfront.io, or information that has been (i) independently developed without access to Beachfront.io Confidential Information as evidenced in writing; (ii) rightfully received by You from a third party; or (iii) required to be disclosed by law or by a governmental authority. You will not use Beachfront.io’s Brand Features in any news release, public announcement, advertisement, or other form of publicity in relation to this Agreement without securing the prior written consent of Beachfront.io.
- Disclaimer. You acknowledge that the Program is still experimental in nature. Beachfront.io does not represent or warrant that the Program is reliable, accurate, complete, or otherwise free from defects. Accordingly, the Program is made available for use “as is”, and any use thereof will be undertaken solely at Your own risk. Beachfront.io reserves the right, in its sole discretion, to include or cease providing the Program at any time (subject to notice as may be required herein), and Beachfront.io does not give or enter into any conditions, warranties or other terms with regard to the Program. In particular, no condition, warranty or other term is given or entered into to the effect that the Program will be of satisfactory quality, noninfringement or that the Program will be fit for any particular purpose. For the avoidance of doubt, Beachfront.io does not guarantee the Program will be operable at all times or during any down time (i) caused by outages to any public Internet backbones, networks or servers, (ii) caused by any failures of Your equipment, systems or local access services, (iii) for previously scheduled maintenance or (iv) relating to events beyond Beachfront.io’s (or its wholly owned subsidiaries’) control such as strikes, riots, insurrection, fires, floods, explosions, war, governmental action, labor conditions, earthquakes, natural disasters, or interruptions in Internet services to an area where Beachfront.io (or its wholly owned subsidiaries) or Your servers are located or co-located.
- Limitation of Liability. Beachfront.io AND ITS WHOLLY OWNED SUBSIDIARIES WILL NOT BE LIABLE TO YOU OR ANY THIRD-PARTY CLAIMANT FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA COLLECTED THROUGH THE PROGRAM), 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 Beachfront.io AND/OR ITS SUBSIDIARIES AND AFFILIATES 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 TO YOU. In any event, Beachfront.io’s (and its wholly owned subsidiaries’) total cumulative liability to You or any other party for any loss or damages resulting from any claims, demands, or actions arising out of or relating to this Agreement will not exceed U.S. $500.
- Representations and Warranties. You represent and warrant that: (a) You have and will maintain throughout the Program Term all rights, authorizations and licenses (including without limitation any copyright, trademark, patent, publicity or other rights) that are required with respect to Your Program Sites, to display Buyer Ads on the Program Sites, and to permit Beachfront.io to perform the Services contemplated under this Agreement; (b) You will not advertise anything illegal or engage in any illegal or fraudulent business practice; (c) all of the information provided by You to Beachfront.io to enroll in the Program is correct and current at all times; (d) You have all necessary right, power, and authority to enter into this Agreement and to perform the acts required of You hereunder; and (e) 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 Your performance of any acts hereunder; (f) You comply with and have any and all consents, authorizations and clearances from end users of the Program Sites to allow Beachfront.io to collect and use the Data in accordance with Section 7(a), and as may be required for Beachfront.io to provide services hereunder; (g) You will at all times comply with Beachfront.io Policies.
- Indemnify. You agree to indemnify, defend and hold Beachfront.io, its agents, affiliates, subsidiaries, directors, officers, employees, and applicable third parties (e.g. relevant advertisers, syndication partners, licensors, licensees, consultants and contractors) (collectively “Indemnified Persons”) harmless from and against any and all third party claims, liability, loss, and expense (including damage awards, settlement amounts, and reasonable legal fees), brought against any Indemnified Person(s), arising out of, related to or which may arise from Your use of the Program, the Program Sites, and/or Your breach of any term of this Agreement.
- Miscellaneous. All claims arising out of or relating to this Agreement will be litigated exclusively in the federal or state courts of San Francisco County, California, USA and Beachfront.io and You consent to personal jurisdiction in those courts. The Agreement constitutes the entire agreement between the parties with respect to the Program. Any notices to Beachfront.io must be sent to: Beachfront.io Inc. with a copy to Legal Department, via first class or air mail or overnight courier, and are deemed given upon receipt. Notice to You may be effected by sending email to the email address specified in Your account, or by posting a message to Your account interface, and is deemed received when sent (for email) or no more than 15 days after having been posted (for messages in Your Program Interface). Beachfront.io’s waiver of any default is not 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. You may not assign any of Your rights hereunder and any such attempt is void. Beachfront.io and You are not legal partners or agents, but are independent contractors. Sections 2, 4, 7, 8, 9, 10, 11, 12 and 13 will survive any expiration or termination of this Agreement.