Biddr 360 Product Suite and Managed Services Amendment

This Biddr 360 Product Suite and Managed Services Amendment (the “Amendment”) is effective on the date of the Insertion Order (“IO”) that references this Agreement either in writing or electronically through a reference to a website link. This Amendment is made by EMX Digital LLC, a Delaware Limited Liability Company (“EMX” or “bRealTime”), located at 229 West 43rd Street, Floor 8, New York, NY 10036, and the Publisher (“You” or “Publisher”) that is a party to the IO. EMX and Publisher will be referred to in this Agreement collectively as the “Parties” and individually as a “Party.”

 

WHEREAS, EMX is a provider of software that deploys a Product Suite (“Biddr 360”) allowing users to manage advertising on owned and operated websites (“Services”). Publisher operates websites that can utilize header bidding technology for advertising;

 

WHEREAS, EMX wishes to sell use of Biddr 360 to Publisher and provide connected managed services. Publisher wishes to purchase, assume use, and may also wish to permit the management by the bRealTime team of Biddr 360, subject to the terms and conditions set forth herein; and

 

WHEREAS, this Amendment shall have the effect of amending and modifying the EMX Publisher Terms and Conditions (the “Agreement”) between the Parties entered into at www.brealtime.com/emx_publisher_termsandconditions.

NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties, intending to be legally bound, hereto agree as follows:

  1. License to Publisher: Subject to the terms of this Amendment and payment of any fees pursuant to any IO, EMX hereby grants Publisher a limited, revocable, non-exclusive, non-sub-licensable, non-transferable, worldwide license during the Term to use and access Biddr 360 services for Publisher’s internal business purposes. This shall include the use of Biddr 360 software and associated javascript, advertising tags, cookies, pixels, or other code or similar technology that are provided by bRealTime to Publisher and used in connection with the Services.

 

  1. Biddr 360 Platform. EMX has developed Biddr 360, an administrative, reporting and workflow user interface for Publishers that allows for direct, self-serve access to heading bidding product features. Biddr 360 shall provide Publishers with visual and actionable bidding and yield management tools, providing quick capabilities to measure relevant data, make changes, updates, and optimizations. Publisher shall be entitled to any periodic Biddr 360 platform version updates relating to the aforementioned features, generally made available to all EMX clients. “Designated User” shall mean an employee of Publisher or one of its affiliates who is authorized and designated by Publisher to access the Biddr 360 platform. EMX will provide Publisher with up to ten (10) logins for Designated Users and up to three (3) of those logins with administrative access to account and corresponding administrative controls through the Biddr 360 platform (“Account”). Publisher is solely responsible for all activities that occur under its Account by its Designated Users.

 

  1. Publisher Representations and Warranties: Publisher agrees (a) to use Biddr 360 as designed and not to alter, copy, modify, take, sell, reuse, or divulge any computer code from the platform; (b) refrain from doing anything which will or might damage, interfere with, disrupt access to, interrupt or impair the functionality of the Product Suite; (c) refrain from facilitating or allowing any third party to implement any Product Suite plug in that establishes links between the Product Suite or submits or retrieves data via any portal with the intention of replacing and/or mirroring all or part of the functionalities of the Product Suite and nor will you facilitate any third party in doing so. You acknowledge and accept that any breach of these Publisher representations and warranties herein would impact negatively on the operation of Biddr 360.

 

  1. Data Use and Confidentiality: All data submitted and acquired using Biddr 360 shall be available for collection and use by EMX for the purpose of product improvement, case study, informative publication, and commercial use to enhance and improve services and offerings to Publishers. Confidentiality is described in Section 11 of the Publisher Agreement.

 

  1. EMX Rights to Terminate: If inappropriate use is found at EMX’s sole discretion, Publisher may be banned from use of Biddr 360 without notice, banned from the network and/or be subject of the enforcement of any and all legal rights associated to Biddr 360 and any other publisher services offered by EMX.

 

  1. DISCLAIMER OF WARRANTY. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS, CPX MAKES, AND HEREBY SPECIFICALLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED, REGARDING BIDDR 360, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. THE INFORMATION CONTAINED HEREIN IS SUBJECT TO CHANGE WITHOUT NOTICE AND IS NOT WARRANTED TO BE ERROR-FREE. IF YOU FIND ANY ERRORS, PLEASE REPORT THEM TO US IN WRITING.

 

  1. Third-Party Content, Products, and Services Disclaimer. This software or hardware and documentation may provide access to or information on content, products, and services from third parties. EMX and its affiliates are not responsible for and expressly disclaim all warranties of any kind with respect to third-party content, products, and services. EMX and its affiliates will not be responsible for any loss, costs, or damages incurred due to your access to or use of third-party content, products, or services.

 

  1. Relationship of Parties. Notwithstanding any provision hereof, for all purposes of this Amendment each party shall be and act as an independent contractor and not as partner, joint venture, or agent of the other and shall not bind nor attempt to bind the other to any contract.

 

  1. General Skills and Knowledge. Notwithstanding anything to the contrary in this Amendment, EMX shall not be prohibited or enjoined at any time by Publisher from utilizing any “skills or knowledge of a general nature” acquired during the course of performing the Services specified under this Amendment. For purposes of this Amendment, “skills or knowledge of a general nature” shall include information publicly known or that could reasonably have been acquired in similar work performed for another customer.

 

  1. EU Personal Data.

 

  1. Definitions and Roles. In this Agreement, the terms “data controller”, “data processor”, “data subject”, “personal data” and “processing” have the meaning given to them in European Directive 95/46/EC (the “EU Data Protection Directive”). To the extent that the EMX services and/or Biddr 360 includes personal data, the parties intend, in relation to such personal data, that: (i) Publisher is a data controller; (ii) EMX is a data processor insofar as Publisher is permitted to use such personal data for its internal business purposes under Section 1, and (iii) EMX is a data controller of such personal data in all other circumstances.
  2. Publisher as a Data Controller. Publisher shall not use personal data under Section 9(a) (including, without limitation transferring or providing access to such personal data to EMX) in any way which: (i) is in breach of this Amendment, including Section 1; (ii) does not comply with the EU Data Protection Directive or other laws applicable to such data and/or Publisher such as the General Data Protection Regulation (EU) 2016/679; (iii) is not consistent with the notice given to and consent given by the data subjects of such personal data; (iv) is illegal; is offensive, abusive, indecent, obscene, or constitutes harassment; (v) is in breach of any third party rights (including third party intellectual property rights); (vi) has any fraudulent purpose of effect; or (vii) damages or may damage EMX’s name and/or reputation. Publisher agrees to indemnify, defend and hold harmless EMX, its affiliates and their respective officers, directors, and employees from and against any and all liabilities, claims, causes of action, suites, judgments, settlements, damages or costs and expenses, including reasonable attorneys’ fees to the extent they arise out of this Section.
  3. EMX as a Data Processor. EMX will process personal data under Section 9(a): (i) as a data processor on Publisher’s behalf; (ii) only for the purpose of providing the Services and otherwise as permitted under this Amendment (including the overarching Publisher Agreement); and (iii) in accordance with Publisher’s instructions, which the parties acknowledge are set out in full in the Agreement, this Amendment, and IO.   EMX will take appropriate technical and organizational measures against unauthorized or unlawful processing of, or accidental loss or destruction of, or damage to, such personal data it may have in its possession
  4. EMX as a Data Controller. EMX may process personal data under Section 9(a) for any purpose in compliance with the EU Data Protection Directive and General Data Protection Regulation (EU) 2016/679, as well as other applicable local laws.