Underdog Media, LLC Publisher Terms and Conditions

Updated: May 15, 2018

PLEASE READ CAREFULLY, THIS UNDERDOG MEDIA PUBLISHER AGREEMENT ("AGREEMENT" OR "UNDERDOG MEDIA PUBLISHER AGREEMENT") IS A BINDING CONTRACT BETWEEN UNDERDOG MEDIA LLC ("UDM" OR "US") AND YOU AND, IF APPLICABLE, THE COMPANY OR LEGAL ENTITY YOU REPRESENT (COLLECTIVELY, "YOU"). THIS AGREEMENT IS POSTED ON WWW.UNDERDOGMEDIA.COM AND MAY BE MODIFIED BY US FROM TIME TO TIME.

BY ACCEPTING THIS AGREEMENT, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THE LEGAL ENTITY TO THIS AGREEMENT, IN WHICH CASE "YOU" SHALL MEAN SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST SELECT THE "DECLINE" BUTTON AND YOU MAY NOT USE THE SERVICE(S).

1. The Underdog Media Services

1.1 The services covered by this Agreement include the use of the Underdog Media website, the use of UDM's Platform and any other service provided to you by us, referred to herein as the UDM "Services" or "Platform".

2. Term and Termination

This Agreement ("Term") shall remain in full force and effect while you use the Services or maintain an Account. Either party may terminate access to or use of any Service or all Services for no reason at all, effective by us upon sending notice to the email address in your Account or by you upon sending notice to publisher@underdogmedia.com

2.1 Term. The term of this Agreement ("Term") will commence upon full execution of this document by Publisher and Underdog Media. The Agreement will remain in effect until terminated by you or us in accordance with this Section 3.

2.2 Termination by You. You may terminate this Agreement for any reason or no reason at all, at your convenience, by providing us written notice of termination via email to publisher@underdogmedia.com or by mail to Underdog Media LLC, Attention: Publisher

Services, 10 East Yanonali Street Suite 2C, Santa Barbara CA, 93101. Acceptance of such termination notice may be provided via your account contact email. Upon acceptance of such termination notice, you agree to immediately cease use of the Underdog Media ad code supplied to you

2.3 Termination by Us. Underdog Media reserves the right to terminate any account at any time, with or without cause, including, without limitation, for not adhering to the Conditions of Use outlined in Section 3. Termination notice may be provided via your account contact email and will be effective immediately. Upon receipt of such termination notice, you agree to immediately cease use of the UDM ad code supplied to you.

3. Conditions of Use

3.1 Appointment. To the extent that Publisher designates particular Inventory for sale by UDM hereunder, Publisher hereby appoints UDM as its representative for the sale of such Inventory during the Term to be delivered on the Publisher Website until Publisher rescinds said appointment, in accordance with the terms of this Agreement, and hereby grants UDM authority to open, manage and negotiate the terms of sale of Inventory with prospective and actual Advertisers and Agencies in accordance with the Advertisement Parameters. Notwithstanding anything to the contrary contained in this Agreement and for the avoidance of doubt, Publisher reserves the right within its reasonable discretion to reject or remove from the Publisher Website any Units for which the advertising materials (e.g. pixels, tags, JavaScript), or the website to which the Unit is linked do not comply with its policies, or that in Publisher's reasonable judgment, do not comply with any applicable law, regulation, or other judicial or administrative order.

3.2 Acceptance. Acceptance of your Web site is subject to approval of Underdog Media. Underdog Media reserves the right to refuse service to any new or existing account for any reason. Once approved, use is limited to the specific URLs that have been approved and are assigned to your account.

3.3 Website Content. Your websites shall not contain (or have direct links to) any content deemed inappropriate by Underdog Media at its sole discretion. Inappropriate content includes but is not limited to the following:

  • Includes, promotes or facilitates pornography.
  • Includes or promotes illegal activities, including without limitation any activities that might be libelous or defamatory or otherwise malicious or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation or age.
  • Content that simulates or artificially initiates clicks, impressions or conversions, including by automatically refreshing tags or pages or via the use of nonhuman traffic.
  • Publishers may not sell inventory on the platform that they do not own or operate without the permission of the owner of the inventory's underlying domain or app.
  • Distributes, shares or facilitates the distribution of unauthorized data, malware, viruses, Trojan horses, spyware, worms or other malicious or harmful code.
  • Violates, misappropriates or infringes upon the rights of any third party.
  • Sites enabling or permitting illegal activities and/or copyright infringement.
  • Constitutes or facilitates the illegal export of any controlled or otherwise restricted items, including without limitation, software, algorithms or other data that is subject to export laws.

3.4 Ad Code Placement and Use.

  • You shall be solely responsible for placing ad code on your Web sites.
  • Ad code can only be placed on the specific URLs that have been approved and are assigned to the account.
  • Ad code must be placed on website and may not be placed on blank or no content web pages, or in such a fashion that may be deceptive to the visitor, or placed in email messages.
  • Ad code shall not be modified without prior written consent from Underdog Media. Any modifications to the ad code shall be owned solely by Underdog Media.

3.6 Data.

UDM is the sole owner of all data collected by the Platform. You have access only to campaign and aggregate user data that is collected through your use of the Platform

3.7 Data Rights in the European Union (EU) and/or subject to GDPR legislation

Publisher agrees that at UDM's discretion, UDM may use the Consent of the visitors to the site, including Consent provided under the specifications of the IAB Europe's GDPR Transparency & Consent Framework described at advertisingconsent.eu (the "Consent Framework"), as the lawful basis for collecting and processing the personal information of the visitors to the site, including the visitor's cookie identifier.

In the absence of such visitor Consent, Publisher will indicate to UDM that it has not established a Consent Framework to process reader data, Publisher agrees that by absence of Consent, UDM will cease to collect or transfer data, deliver advertisement or in otherwise block users from countries subject to EU Privacy Laws.

3.8 Privacy Notice

Publisher must maintain and comply with a privacy policy that provides notice of data collection, use, and transfer practices related to the Services, including without limitation, use of cookies or other tracking mechanisms and such privacy policy must comply with all applicable laws, rules, regulations, and self-regulatory standards.

3.9 Payment.

  • UDM shall have the sole responsibility for calculation and reporting of all statistics. Pacific Standard Time (GMT - 08:00) shall be the time period used for all calculations.
  • UDM reserves the right to set and negotiate specific payment terms on an individual basis.
  • UDM will make payments following the months in which your earned revenue exceeds $50. Revenue which is not paid to you in any month during which the minimum activity level is not met will be credited to your account and paid when accrued revenue exceeds $50. UDM will make payments to you within 25 days following the end of the month (Net 25).

3.10 Publicity.

UDM shall have the right to reference and refer to its work for you and relationship with you for marketing and promotional purposes. No press releases or general public announcements shall be made without the mutual consent of UDM and you.

3.11 Required Tax Documentation.

If publisher is a US entity, Publisher shall provide to UDM an accurate Form W-9 upon request. If Publisher is a non-US entity, Publisher shall provide to UDM an accurate Form W-8 upon request. Publisher further agrees to provide UDM with any additional requested tax information.

3.12 Compliance with Laws.

Each party shall comply with all applicable laws, statutes, ordinances, regulations, and self-regulatory guidelines (collectively, "Laws") in connection with their performance or exercise of rights under this Agreement, without limitation, the laws and regulations governing export control, privacy, unfair competition, false advertising, consumer protection, issuance or sale of securities, child pornography, obscenity, trade in firearms, spamming, data transfer, telecommunications and the United States Digital Advertising Alliance ("DAA") Self-Regulatory Principles published at www.aboutads.info ("DAA Self-Regulatory Principles") including the corresponding DAA-designated self-regulatory frameworks established in other countries and/or regions. For avoidance of doubt, applicable laws will include the EU Directive on Privacy and Electronic Communications (2002/58/EC), any national laws implementing such Directives and/or, when applicable, the Regulation (EU) 2016/679 ("GDPR"), and any legislation or regulation amending, supplementing or any of the foregoing from time to time (together "EU Privacy Laws") for any Publisher providing content to readers within the European Economic Area.

4. Confidentiality.

You shall not disclose UDM Confidential Information during the Term or at any time during the three (3) year period following the end of the Term. As used in this Agreement, "UDM Confidential Information" means all nonpublic information disclosed by us, our business partners or our or their respective agents or contractors that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. UDM Confidential Information includes, without limitation: (i) nonpublic information relating to our or our business partners' technology, customers, business plans, promotional and marketing activities, finances and other business affairs (including, but not limited to, any information about or involving one of our so-called beta tests or a beta test product that you obtain as a result of your participation in such beta test); (ii) third-party information that we are obligated to keep confidential; and (iii) the nature; content and existence of any discussions or negotiations between you and UDM. Confidential Information does not include any information that you are required to disclose by law.

5. Intellectual Property.

Other than the limited use and access rights and licenses expressly set forth in this Agreement, we reserve all right, title and interest (including all intellectual property and proprietary rights) in and to the Platform, the UDM website, and any other service, technology or software that we provide to you. You do not, by virtue of this Agreement or otherwise, acquire any ownership interest or rights in the UDM website, Platform, and any other service provided to you by us.

6. Disclaimers; Use Limitations; Representations and Warranties; Limitations of Liability.

6.1 DISCLAIMER. THE SERVICES HEREUNDER: UNDERDOG MEDIA WEBSITES, PLATFORM, SERVICES, TECHNOLOGY, AND SOFTWARE (COLLECTIVELY, THE "UDM SERVICES") AND ALL ADVERTISEMENTS, THIRD PARTY WEBSITES, APPLICATIONS AND/OR EMAILS (COLLECTIVELY, THE "THIRD PARTY PRODUCTS") ARE PROVIDED OR MADE AVAILABLE BY UDM ON AN "AS IS" AND "AS AVAILABLE" BASIS, AND UDM EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, UDM SERVICES, AND NONINFRINGEMENT. YOU EXPRESSLY AGREE THAT YOUR USE OF THE UDM SERVICES AND THIRD PARTY PRODUCTS, OR ANY PARTY THEREOF, IS AT YOUR SOLE RISK. SPECIFICALLY, BUT WITHOUT LIMITATION, UDM MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY OF THE FOLLOWING AND UDM DISCLAIMS ANY AND ALL RESPONSIBILITY FOR ANY LOSS, INJURY, CLAIM, LIABILITY, PENALTY OR DAMAGE OF ANY KIND WHATSOEVER RESULTING FROM, ARISING OUT OF OR IN ANY WAY RELATED TO THE FOLLOWING: (i) THAT THE UDM SERVICES OR THIRD PARTY PRODUCTS, OR ANY PART THEREOF, SHALL BE FREE OF ERRORS OR OMISSIONS, INCLUDING, BUT NOT LIMITED TO, TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS; (ii) THE AVAILABILITY, ACCURACY OR UNINTERRUPTED USE OF THE UDM SERVICES OR THE THIRD PARTY PRODUCTS OR ANY PORTION THEREOF, ANY CONTENT THEREON OR ANY INTERFACE THERETO; (iii) THAT THE UDM SERVICES OR THIRD PARTY PRODUCTS, OR ANY PART THEREOF, ARE FREE OF DEFECTS, VIRUSES OR OTHER HARMFUL COMPONENTS; (iv) ANY THIRD PARTY WEBSITES OR CONTENT THEREIN DIRECTLY OR INDIRECTLY ACCESSED THROUGH HYPERLINKS CONTAINED IN THE UDM SERVICES; (v) YOUR USE OF ANY UDM SERVICES OR THIRD PARTY PRODUCTS; (vi) ANY INFORMATION, SERVICES OR PRODUCTS PROVIDED OR AVAILABLE THROUGH OR IN CONNECTION WITH UDM, THIRD PARTY PRODUCTS OR ANY RESULTS OBTAINED THROUGH THE USE THEREOF, ANY INFORMATION, SERVICES OR PRODUCTS PROVIDED OR AVAILABLE THEREFROM, OR WEBSITES LINKED THERETO OR THEREFROM; OR (vii) THE SUCCESS OR RESULTS, ECONOMIC OR OTHERWISE, THAT MAY BE OBTAINED BY USE OF, OR OTHERWISE AVAILABLE FROM, THE UDM SERVICES OR THIRD PARTY PRODUCTS, OR ANY PART THEREOF.

6.2 Use Limitations.

You understand and agree that from time to time the UDM Services hereunder may be inaccessible, unavailable or inoperable for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which UDM may undertake from time to time; or (iii) causes beyond the control of UDM or which are not reasonably foreseeable by UDM, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks, the unavailability, operation, or inaccessibility of websites or interfaces, network congestion or other failures. While UDM will attempt to provide the services on a continuous basis, you acknowledge and agree that UDM has no control of the availability of the services on a continuous or uninterrupted basis. You also understand and agree that UDM is not responsible for the functionality of any third-party website or interface. Terms of this agreement are subject to UDM hardware, software, and bandwidth traffic limitations. Failure to deliver because of technical difficulties does not represent a failure to meet the obligations of this contract.

6.3 Representations and Warranties.

1. Use of the UDM Services.

You represent and warrant that you will not use the UDM Services: (i) in a manner that infringes, violates or misappropriates any rights of us or any third party; (ii) to engage in spamming or other impermissible advertising, marketing or other activities, including, without limitation, any activities that violate anti-spamming laws and regulations, including, without limitation, the CAN-SPAM Act of 2003; (iii) in any manner that constitutes or facilitates the illegal export of any controlled or otherwise restricted items, including, without limitation, in a manner that might be libelous or defamatory or otherwise malicious or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age.

2. Authorization and Account Information.

You represent and warrant that: (i) the information you provide in connection with your registration is accurate and complete; (ii) if you are registering for the UDM Services as an individual, that you are at least 18 years of age and have the legal capacity to enter into this Agreement; and (iii) if you are registering for the UDM Services as an entity or organization, (a) you are duly authorized to do business in the country or countries where you operate, (b) the individual accepting this agreement meets the requirements of subsection (ii) above and is an authorized representative of your entity, and (c) your employees , officers, representatives and other agents accessing the UDM Services are duly authorized to access the UDM Services and to legally bind you to this Agreement and all transactions conducted under your account.

3. Website Content.

You represent and warrant: (i) that you are solely responsible for the development, operation, and maintenance of your website and its content, including without limitation, the accuracy, appropriateness and completeness of your website and its content; (ii) that you have the necessary rights and licenses, consents, permissions, waivers and releases to use and display your website and its content; (iii) that your website and its content does not (a) violate, misappropriate or infringe any rights of UDM or any third party, (b) constitutes defamation, invasion of privacy or publicity, or otherwise violates any rights of any third party, or (c) is designed for use in any illegal or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age; (iv) that neither your website or its content contains any Harmful Components; and (v) to the extent to which you use any of the Marks, that you will conduct your business in a professional manner and in a way that reflects favorably on the goodwill and reputation of UDM.

6.4 Limitations of Liability.

NEITHER WE NOR ANY UDM ENTITY SHALL BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) IN CONNECTION WITH THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY SUCH DAMAGES RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICES; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; OR (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR CONTENT. IN ANY CASE, OUR AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU TO US HEREUNDER FOR THE SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.

7. Indemnity.

You agree to indemnify, defend and hold us, and our affiliates, each of our and their business partners and each of our and their respective employees, officers, directors and representatives, harmless from and against any and all claims, losses, damages, liabilities, judgements, penalties, fines, costs and expenses (including reasonable attorneys' fees), arising out of or in connection with any claim arising out of (i) the content or other material set forth on your website and/or publisher application (ii) and/or the use of the UDM Services as authorized by this Agreement and/or your use of the UDM Services in a manner not authorized by this Agreement, and/or in violation of the applicable restrictions, and/or applicable law, (iii) your Web site and its Content, or the combination of either with other applications, content or processes, including but not limited to any claim involving infringement or misappropriation of third-party rights and/or the use, development, design, manufacture, production, advertising, promotion and/or marketing of your website and/or its content, (iv) your violation of any term or condition of this Agreement, including without limitation, your representations and warranties or (v) you or your employees' or personnel's negligence or willful misconduct.

7.1 Indemnification by Publisher.

Publisher will indemnify, defend, and hold harmless Underdog Media and its Affiliates and their respective officers, directors, employees, and agents (each, an "Underdog Media Indemnitee") from and against any and all Losses incurred by such Underdog Media Indemnitees in connection with any third-party claim to the extent arising from, relating to, or connected with (i) an allegation that any materials or platforms provided by Publisher hereunder, including, without limitation, the Publisher Data and the Publisher Ad Server, when used in connection with the Platform and/or Website in accordance with this Agreement, infringes or misappropriates any Intellectual Property Right

8. Notices.

8.1 To You. Except as otherwise set forth herein, notices made by us to you under this Agreement that affect our customers generally, including but not limited to notices of amended Agreements, updated fees, will be posted on the UDM Web site. Notices made by us under this Agreement for you or your account specifically (e.g., notices of breach and/or termination) will be provided to you via the email address provided to us in your registration for the UDM Services or in any updated email address you provide to us in accordance with standard account information update procedures we may provide from time to time. It is your responsibility to keep your email address current and you will be deemed to have received any email sent to any such email address, upon our sending of the email, whether or not you actually receive the email.

8.2 To Us. For notices made by you to us under this Agreement and for questions regarding this Agreement or the UDM Services, you may contact Underdog Media as follows: admin @underdogmedia.com and/or Underdog Media LLC, 10 East Yanonali Street, Suite 2C Santa Barbara CA 93101

8.3 Language. All communications and notices to be made or given pursuant to this Agreement shall be in the English language.

9. Miscellaneous Provisions.

9.1 Third Party Activities. If you authorize, assist, encourage or facilitate another person or entity to take any action related to the subject matter of this Agreement, you shall be deemed to have taken the action yourself.

9.2 Force Majeure. UDM shall not be liable by reason of any failure or delay in the performance of its obligations hereunder for any cause beyond the reasonable control of such party, including but not limited to electrical outages, failure of Internet service providers, riots, insurrection, war (or similar), fires, flood, earthquakes, explosions, and other acts of God.

9.3 Severability. If any portion of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect, and any invalid or unenforceable portions shall be construed in a manner that most closely reflects the effect and intent of the original language. If such construction is not possible, the provision will be severed from this Agreement, and the rest of the Agreement shall remain in full force and effect.

9.4 Waivers. The failure by us to enforce any provision of this Agreement shall in no way be construed to be a present or future waiver of such provision nor in any way affect our right to enforce such provision thereafter. All waivers by us must be in writing to be effective.

9.5 Successors and Assigns. This Agreement will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.

9.6 Entire Agreement. This Agreement constitutes the entire agreement between you and us regarding the subject matter hereof and supersedes any and all prior or contemporaneous representation, understanding, agreement, or communication between you and us, whether written or oral, regarding such subject matter.

9.7 No Endorsement. You understand and acknowledge that we are not certifying nor endorsing, and have no obligation to certify or endorse, any of your website or its content.

9.8 Relationship. Nothing in this Agreement is intended to or does create any type of joint venture or partnership or any employer/employee or fiduciary or franchise relationship between you and us.

9.9 Independent Contractors. Each party is an independent contractor. Any intention to create a joint venture or partnership between the parties is expressly disclaimed. Except as set forth herein, neither party is authorized or empowered to obligate the other or to incur any costs on behalf of the other without the other party's prior written consent.