This Publisher Platforms Master Services Agreement (the “MSA”) is entered into between SAFE REACH MEDIA and the entity that accepts this MSA via SAFE-REACH MEDIA’s Publisher Contract (“Company”). This MSA shall be effective on the date of Company’s acceptance as recorded SAFE REACH MEDIA (the “Effective Date”) and continue until terminated as provided in Section 10 below. SAFE REACH MEDIA and Company may each be referred to as a “Party” or collectively as the “Parties”. In consideration of the foregoing, the Parties agree as follows:
By entering this agreement Company acknowledges that SAFE REACH MEDIA operates in the legal cannabis industry and will be facilitating the placement of cannabis advertisements on Companies website and/or mobile application.
SAFE REACH MEDIA abides all state level legislation for the promotion and sale of recreational or medicinal cannabis and uses reasonable best practices to ensure compliance with all laws as written.
This MSA governs Company’s access to and use of, one or more of SAFRE REACH MEDIA platforms, tools, Dashboards, SAFE REACH MEDIA APIs. SAFE-REACH reserves the right to provide any of the Services, in whole or in part, through any SAFE REACH MEDIA Affiliate(s). The terms associated with each Service shall be specified in one or more schedules (each a “Schedule”) associated with this MSA and collectively, the MSA and associated Schedule(s) shall be referred to as the “Agreement”.
COMPANY AGREES THAT THIS AGREEMENT SUPERSEDES ALL PRIOR EXISTING AGREEMENTS BETWEEN COMPANY AND SAFE REACH MEDIA, SAFE REACH MEDIA OR ANY OF THEIR RESPECTIVE AFFILIATES WITH RESPECT TO ANY OF THE SERVICES HEREIN, AND SHALL EXCLUSIVELY GOVERN COMPANY’S USE OF THE SERVICES AS OF THE DATE OF ACCEPTANCE. SAFE REACH MEDIA MAY, AT ITS SOLE DISCRETION, UPDATE OR AMEND THE TERMS OF THIS AGREEMENT OR ANY ASSOCIATED SCHEDULE OR AMENDMENT BY PROVIDING ELECTRONIC NOTICE TO COMPANY
SAFE REACH MEDIA offers a variety of Services to Company, which Company may select by entering into one or more Schedules. Each Schedule shall be governed by the terms contained in this Agreement, but shall be an independent document that may be terminated or renewed individually under the terms of this Agreement.
1.1 General Service Provisions.
Company is responsible for providing the necessary resources and development work to enable Company video player(s), web page(s), application(s) and/or ad server(s), as applicable, to access and interact with the Service in cooperation with SAFE REACH MEDIA and in accordance with the technical integration specifications made available via SAFE REACH MEDIA.
1.2 Integration Obligations.
For various Services, Company may integrate with SAFE REACH MEDIA’s systems through a variety of method including Tags, server to server integration, an SDK or any other method mutually agreed to between the Parties. SAFE REACH MEDIA may condition use of any particular integration method on acceptance of certain specific technical or legal obligations. SAFE REACH MEDIA shall provide notice to Company (email to suffice) of the additional legal terms and/or technical requirements for each particular integration method agreed to by Company.
1.3 Account Obligations.
To access and participate in the Services, Company may be required to complete a registration process and create an account by providing current, complete and accurate information to SAFE REACH MEDIA. Upon completion of the registration process to SAFE REACH MEDIA’s satisfaction, SAFE REACH MEDIA shall provide Company with a log-in user ID for the applicable Dashboard and access to the SAFE REACH MEDIA APIs consistent with the terms of this Agreement. Company is responsible for any actions or activities under Company’s account, whether or not Company has authorized such activities or actions, unless such action is a result of a breach of SAFE REACH MEDIA’s systems, and Company must promptly notify SAFE REACH MEDIA of any unauthorized use of Company’s account.
SAFE REACH MEDIA will pay all revenue payments to Company within sixty (60) days after the end of the month in which such revenue was earned by Company. SAFE REACH MEDIA will make revenue payments to Company only when the outstanding balance exceeds US$250.00 until termination of Company’s account for the applicable Service. If Company utilizes any fee-based services, SAFE REACH MEDIA may deduct such fees from payments to Company, or if payments to Company are insufficient to cover the fees, bill Company for such fees. To ensure timely payment, Company must notify SAFE REACH MEDIA of any changes to its account information, including change of address, phone or email address. If Company disputes any payment made by SAFE REACH MEDIA in connection with any of the Services, Company must notify SAFE REACH MEDIA in writing within thirty (30) days of any such payment. Failure to notify SAFE REACH MEDIA in such time will result in Company’s waiver of any claims related to such disputed payment. SAFE REACH MEDIA reserves the right to withhold payment if Company (a) breaches the Agreement, or (b) engages in any behavior prohibited by the SAFE REACH MEDIA Online Content and Advertising Policy Terms. If SAFE REACH MEDIA finds that Company has engaged in behavior prohibited by the SAFE REACH MEDIA Online Content and Advertising Policy Terms and SAFE REACH MEDIA has already made payment to Company, SAFE REACH MEDIA may offset such amounts against future payments to Company; however, if such amounts are insufficient, SAFE REACH MEDIA may bill Company directly for any over-payment. SAFE REACH MEDIA will not withhold payment with respect to unaffected Placements, as long as SAFE REACH MEDIA itself has received full payment for the unaffected Placements and the relevant Buyer has not raised a concern about deceptive/inappropriate conduct regarding the unaffected Placements. All fees from Company to SAFE REACH MEDIA hereunder, other than those which SAFE REACH MEDIA has netted from payments, are payable within thirty (30) days after the date of invoice with respect to the calendar month in which the Service was utilized. Invoices shall be sent to the billing contact set forth in this Agreement. Any dispute regarding an invoice must be submitted to the other Party in writing within thirty (30) days of receipt or it shall be deemed waived. If Company utilizes the Services outside of the United States, Company acknowledges that payment will only be made after Company fulfills SAFE REACH MEDIA’s invoicing requirements.
3.1 Subject to the terms and conditions of this Agreement, SAFE REACH MEDIA grants to Company a limited, non-assignable, non-transferable, non-exclusive, non-sublicensable right and license to access the Service, to use the Tags or other integration method and to perform or display Ads on the Company Sites (where applicable), and to access the Licensed Tools (where applicable), solely for the purpose of performance of this Agreement and solely during the Term. Company shall use such Licensed Tools for Company’s internal use and solely for the purposes identified in and authorized by this Agreement. Except for the limited license rights expressly granted to Company in this Agreement, and in addition to those ownership rights of SAFE REACH MEDIA set forth in the Agreement, as between the Parties, SAFE REACH MEDIA retains all right, title and interest in and to the Service, the Licensed Tools, the Tags and any content made available to Company via the Service.
3.2 Company grants SAFE REACH MEDIA a limited license to use and display Company’s name and logo (in the form provided by Company) and the respective URLs of the Company Sites in connection with SAFE REACH MEDIA’s sales and marketing materials during the Term. By listing Placements and soliciting Bids for advertising campaigns through the Services, or by bidding on Placements, Company grants SAFE REACH MEDIA a limited, non-exclusive, fully paid-up license to display Placements (and content therein) in the Service to be viewed and bid on by Buyers in accordance with any Placement Settings defined by Company.
3.3 Except as may be expressly provided herein, neither Party shall have or obtain any rights in or to any intellectual property of the other Party in connection with this Agreement. Without limiting the generality of the foregoing, SAFE REACH MEDIA retains all right, title and interest in and to the Services, the technology used by SAFE REACH MEDIA to operate the Services, SAFE REACH MEDIA’s Marks, and all enhancements made by SAFE REACH MEDIA to any of the foregoing from time to time, including but not limited to all patent, trademark, copyright, trade secret and all other intellectual property rights in the foregoing.
4. Services Protection.
SAFE REACH MEDIA may, in its sole discretion, take all actions reasonably necessary to protect the Services, other entities using the Services, SAFE REACH MEDIA (and its suppliers or vendors) and SAFE REACH MEDIA’s network, equipment and infrastructure, including but not limited to immediately suspending Company’s access to the Services without prior notice. SAFE REACH MEDIA shall, as soon as reasonably practicable under the circumstances, provide Company with notice of such suspension as well as SAFE REACH MEDIA’s reasons for the suspension.
5. Prohibited Content; Prohibited Activities.
SAFE REACH MEDIA operates in the legal cannabis industry within the greater United States. SAFE REACH MEDIA performs ad delivery for advertisers and affiliated industries of the legal cannabis industry for both adult use and medicinal applications. SAFE-REACH media operates in line with all state laws for promotion and advertising of cannabis. Company agrees to participate with SAFE REACH MEDIA in the marketing and promotion of legal cannabis products.
SAFE REACH prohibits all content that is not in line with state guidelines for advertising Cannabis or derivative Cannabis products and industries.
6 Measurement; Reports.
SAFE REACH MEDIA shall have the responsibility in its sole and reasonable discretion for calculation of all statistics, measurements and payments, including without limitation, Impressions, Bids, invalid traffic, unique visitors and revenue or fees generated on or through the Service(s), as applicable.
Company acknowledges that in some cases, SAFE REACH MEDIA will need to make adjustments to statistics reported in the Dashboard(s) (the “Reports”) due to invalid traffic, statistical errors, or third-party tracking. All information or statistics provided in Reports prior to SAFE REACH MEDIA’s distribution of payment to Company or invoice for fees are for informational purposes only, and may not be used for billing purposes. Subject to those disclosure rights expressly set forth in this Agreement, the data contained in Reports is SAFE REACH MEDIA’s Confidential Information.
For Company Sites that utilize any of the Services and are End User facing, the following privacy obligations shall apply.
7.2 Company Site Obligations.
7.3 Precise Geolocation.
Where Company collects, processes or discloses Precise Geolocation Data for advertising purposes, including Cross-App Advertising, from a Company Site to SAFE REACH MEDIA: (a) Company shall ensure that the Company Site obtains express (i.e., opt-in) consent from End Users; and (b) the Company Site shall prominently post notice to End Users: (i) that their Precise Geolocation Data may be shared with third parties; and (ii) the purposes for which such data may be used, including Cross-App Advertising. “Cross-App Advertising” as currently defined by the Network Advertising Initiative (“NAI”), means the collection of data through applications owned or operated by different entities on a particular device for the purpose of delivering advertising based on the preferences or interests known or inferred from the data collected, or as may be amended by the NAI from time to time.
7.4 Protection of Minors.
Company represents and warrants that Company shall (1) comply with the relevant laws, governmental regulations and court or government agency orders, decrees and policies relating to advertisements.
SAFE-REACH media’s use of permission based data and age validation ensures that no child is targeted or served ads during the course of any campaign on Company site or mobile app.
8. Marks Usage.
Each Party agrees that it will not make any disclosure or public statement about the other Party or the Services or use a Party’s Marks or disclose the existence or terms of this Agreement, without the other Party’s prior written approval. Upon receiving a Party’s prior written approval for a particular disclosure or use, identical subsequent uses shall be deemed approved unless and until further instructions are provided by such Party. Notwithstanding the foregoing, during the Term, SAFE REACH MEDIA may, at its discretion, disclose on its website, or in sales materials, or in order to provide the Services, that Company is a customer.
Each Party will abide by its tax obligations set forth in the SAFE REACH MEDIA Contracting Addendum.
10. Term and Termination; Suspension; Effect of Termination.
This Agreement shall commence on the Effective Date and continue for a period of one (1) year (the “Initial Term”). This Agreement shall automatically renew for additional one (1) year periods (each, a “Renewal Term”) unless either Party provides written notice of its intent not to renew this Agreement a minimum of thirty (30) days prior to the expiration of the then current Term. Each such Renewal Term shall be on the same terms and conditions contained herein. The Initial Term and the Renewal Terms are collectively referred to as the “Term”.
Either Party may terminate this Agreement or any associated Schedule for any reason or no reason whatsoever upon thirty (30) days advance written notice. Additionally, either Party may terminate this Agreement or any associated Schedule at any time in the event: (a) of a material breach by the other Party which remains uncured after seven (7) days written notice thereof; or (b) the other Party ceases to do business in the normal course, becomes or is declared insolvent or bankrupt, is the subject of any proceeding related to its liquidation or insolvency (whether voluntary or involuntary) which is not dismissed within ninety (90) calendar days or makes an assignment for the benefit of creditors.
10.3 Effect of Termination or Expiration.
Upon termination or expiration of this Agreement, all Services, and any licenses granted by SAFE REACH MEDIA hereunder, shall immediately terminate and Company must remove all Tags from the Company Sites and cease delivery of any and all Ads. In the case of termination or expiration, each Party shall pay the other Party all uncontested amounts due during the next billing cycle.
11. Representations and Warranties.
Each Party represents and warrants to the other that: (a) it has the full right, power, and authority to enter into this Agreement; (b) the execution of this Agreement and performance of its obligations under this Agreement do not and will not violate any other agreement to which it is a party; (c) this Agreement constitutes a legal, valid and binding obligation when agreed to; and (d) it will conduct its business and fulfill its obligations under this Agreement in compliance with all applicable laws, rules and regulations. Additional representations and/or warranties contained in any particular Service schedule shall be additive to these representations and warranties.
12. Export Control and Anti-Corruption Laws.
Company agrees to comply with the export laws and regulations of the United States and trade controls of other applicable countries, including without limitation the Export Administration Regulations of the U.S Department of Commerce, Bureau of Industry and Security and the embargo and trade sanction programs administered by the U.S. Department of Treasury, Office of Foreign Assets Control. Company agrees to comply with all applicable anti-corruption laws, including without limitation the Foreign Corrupt Practices Act of 1977 and UK Bribery Act of 2010. Company further agrees to keep accurate books and records in relation to this Agreement.
13. Service Levels.
Except as specifically provided in a particular Service schedule, SAFE REACH MEDIA does not guarantee the Service will be operable at all times, including during any downtime (a) caused by outages to any public Internet backbones, networks or servers, (b) caused by any failure of Company’s equipment, systems or local access services, (c) for previously scheduled maintenance, or (d) relating to events beyond SAFE REACH MEDIA’s control, including any interruptions in Internet services.
14. Disclaimer of Warranties.
EXCEPT AS EXPRESSLY PROVIDED IN AN APPLICABLE SCHEDULE, THE SERVICES (INCLUDING, WITHOUT LIMITATION, ANY THIRD PARTY COMPONENTS) ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. EXCEPT AS EXPRESSLY SET FORTH IN AN APPLICABLE SCHEDULE, SAFE REACH MEDIA EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND RELATING TO THE SERVICES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS, NOTWITHSTANDING ANY SUBSEQUENT ORAL STATEMENTS, APPLICABLE INDUSTRY STANDARDS, COURSE OF DEALING OR COURSE OF PERFORMANCE. SAFE REACH MEDIA RESERVES THE RIGHT TO MODIFY, SUSPEND OR DISCONTINUE ANY ASPECT OF THE SERVICES AT ANY TIME, AND SAFE REACH MEDIA WILL NOT BE LIABLE TO COMPANY OR ANY THIRD PARTY SHOULD IT EXERCISE SUCH RIGHT. SAFE REACH MEDIA DOES NOT WARRANT THAT THE SERVICES SHALL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE.
15. Limitation of Liability.
EXCEPT IN CONNECTION WITH A BREACH OF THE CONFIDENTIALITY PROVISIONS OR INDEMNITY OBLIGATIONS HEREIN: (A) NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM OR RELATED TO THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR PROFITS, LOST BUSINESS OR COST OF REPLACEMENT SERVICES, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY, AND SUCH LIABILITY BETWEEN THE PARTIES WILL BE LIMITED TO DIRECT, OBJECTIVELY MEASURABLE DAMAGES, AND (B) THE AGGREGATE LIABILITY FOR ALL CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT WILL BE CAPPED AT AN AMOUNT EQUAL TO THE GREATER OF: (1) AGGREGATE AMOUNTS PAYABLE HEREUNDER DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE; OR (2) ONE HUNDRED THOUSAND DOLLARS ($100,000).
16.1 Claims Subject to Indemnification.
Each Party (the “Indemnifying Party”) hereby agrees to defend, indemnify and hold harmless the other Party and its officers, directors, agents, affiliates and employees (each, an “Indemnified Party”) from any and all third party claims or liabilities (including reasonable attorneys’ fees) arising out of or related to the Indemnifying Party’s breach or alleged breach of a Party’s representations or warranties under this Agreement. In addition: (i) Company shall indemnify SAFE REACH MEDIA and its officers, directors, agents, affiliates, and employees from any and all third party claims or liabilities (including reasonable attorneys’ fees) that Company has failed to fulfill its obligations under Section 7 above (Privacy); and (ii) SAFE REACH MEDIA shall indemnify Company and its officers, directors, agents, affiliates and employees from any and all third party claims or liabilities (including reasonable attorneys’ fees) that the Service violates a third party’s intellectual property rights.
16.2 Process for Exercising Indemnification.
Any claim for indemnification hereunder shall be subject to the following provisions: (a) the Indemnifying Party shall be given prompt written notice of the claim by the Indemnified Party, provided that any delay in providing notice shall not relieve the Indemnifying Party of its indemnity obligations under this Agreement unless, and only to the extent, the Indemnifying Party was prejudiced by the delay; (b) the Indemnifying Party shall have the right to control the defense and all negotiations relative to the settlement of any such claim, provided that no settlement admitting liability on the part of the Indemnified Party may be made without the express written consent of the Indemnified Party; and (c) the Indemnified Party shall reasonably cooperate with the Indemnifying Party and its counsel at the indemnifying Party’s cost and expense.
Each Party acknowledges that Confidential Information may be disclosed to the other Party during the course of this Agreement. The Recipient agrees that it will take reasonable steps, at least substantially equivalent to the steps it takes to protect its own proprietary information, but in no event shall such protection be less than a reasonable standard of care, during the Term of this Agreement, and for a period of three (3) years following expiration or termination of this Agreement, to prevent the disclosure of the Confidential Information of the Discloser, other than to its employees, affiliates, subsidiaries or other agents (collectively, “Representatives”) who have a need to know such Confidential Information for purposes of performing pursuant to this Agreement and who are bound in writing by restrictions regarding disclosure and use of such information comparable and no less restrictive than those set forth herein. The foregoing obligations shall not apply to the extent Confidential Information must be disclosed by the Recipient to comply with any requirement of law or order of a court or administrative body (provided that, to the extent lawfully able to do so, Recipient will notify Discloser of the issuance of such order as soon as practicable, to reasonably cooperate with Discloser (at Discloser’s expense) in its efforts to convince the court or administrative body to restrict disclosure), and to disclose only the portion of such information that it is legally required to disclose. Confidential Information does not include information that: (a) is known to or in the possession of Recipient prior to its receipt from Discloser hereunder, as evidenced by the Recipient’s written records; (b) is or becomes known or generally available to the public through no act or omission of Recipient or its Representatives in breach of this Agreement; (c) is received by Recipient from a third-party that is not under any obligation of confidentiality with respect to such information; or (d) is independently developed by Recipient without use of or reference to the Discloser’s Confidential Information.
18. Severability and Waiver; No Joint Venture; No Exclusivity.
If any provision of this Agreement shall be held or made invalid or unenforceable by a court decision, statute, rule or otherwise, the remaining provisions of this Agreement shall not be affected thereby and shall continue in full force and effect. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the Party claimed to have waived. This Agreement shall be interpreted as if drafted jointly by the Parties. The Parties are independent contractors, and no agency or similar relationship shall be created by this Agreement, and neither Party will have any authority to assume, create, or enlarge any obligation or commitment on behalf of the other. Nothing in the Agreement shall limit the right of either Party to enter into similar arrangements with third parties or to establish, maintain or expand a sales force, or contract with or to utilize other exchange partners, in any territory in the world at any time.
Any notice, approval, request, authorization, direction or other communication under this Agreement will be given in writing and will be deemed to have been delivered and given for all purposes: (a) on the delivery date if delivered by confirmed electronic mail and followed up with postal delivery; (b) on the delivery date if delivered personally to the Party to whom the same is directed; (c) one business day after deposit with a commercial overnight carrier, with written verification of receipt; or (d) five business days after the mailing date, whether or not actually received, if sent by mail, return receipt requested, postage and charges prepaid, or any other means of rapid mail delivery for which a receipt is available. In the case of SAFE REACH MEDIA, such notice will be provided to both the Vice President – Platforms and the Vice President – Legal, SAFE REACH MEDIA Signatory, at the address of SAFE REACH MEDIA Signatory set forth in the SAFE REACH MEDIA Contracting Addendum. In the case of Company, the notice address shall be the address for Company provided by Company during the signup process (or if Company failed to provide such address, any address Company associates with receiving payments under this Agreement), with the other relevant notice information, including the recipient for notice to be as reasonably identified by SAFE REACH MEDIA.
20. Force Majeure.
Neither Party will be liable for any failure or delay in its performance under this Agreement due to causes that are beyond its reasonable control, including, but not limited to, an act of God, act of civil or military authority, fire, epidemic, flood, earthquake, strikes, riot, war, sabotage, terrorism and governmental action.
This Agreement shall constitute the entire agreement between the Parties with respect to the subject matter hereof and thereof, and this Agreement supersedes all prior agreements or representations, oral or written, regarding such subject matter. This Agreement shall be interpreted, construed and enforced in accordance with the laws set forth in the SAFE REACH MEDIA Contracting Addendum except for its conflicts of laws principles, and each Party irrevocably consents to the exclusive jurisdiction of the courts or arbitration panel set forth in the SAFE REACH MEDIA Contracting Addendum over all claims and all actions to enforce such claims or to recover damages or other relief in connection with such claims. There are no intended third party beneficiaries of SAFE REACH MEDIA’s duties or obligations under this Agreement, and no third party shall be permitted to assert any claim against SAFE REACH MEDIA relating to the Agreement as an intended third-party beneficiary. This Agreement may be modified by SAFE REACH MEDIA upon not less than thirty (30) days’ written notice to Company (email to suffice). Continued use of the Services by Company after the effective date of the modification will be deemed acceptance of the modification by Company. Sections 1, 2 (to the extent of any outstanding payment obligations), 4, 9, 11-18 and 21 of this Agreement, along with any provision that by its nature is an ongoing obligation, shall survive termination or expiration of this Agreement. This Agreement may be assigned by either Party to an Affiliate upon notice to the other Party. This Agreement shall inure to and be binding upon the Parties and their successors and permitted assigns. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same document. Delivery of an executed signature page to this Agreement in a commercially accepted scanned electronic form shall be effective to the same extent as if such Party had delivered a manually executed counterpart.