SGN GAMES INC. STANDARD ADVERTISING TERMS AND CONDITIONS
These standard terms and conditions (the “Standard Terms”) are incorporated in and made a part of the Insertion Order (the “Insertion Order”) between advertiser or an agency properly authorized to represent an advertiser (“Advertiser”) and SGN Games Inc., a Nevada Corporation (“SGN Games Inc.”). The Insertion Order and the Standard Terms are collectively referred to as the “Agreement.”
1. Authorization; License. Advertiser hereby authorizes SGN Games Inc. to run certain advertising or other promotional campaigns (collectively, “Campaigns”) on any website and/or other internet-based advertising inventory or properties owned or controlled by SGN Games Inc. as more fully detailed in the Insertion Order pursuant to the terms and conditions of the Agreement. Advertiser hereby grants to SGN Games Inc. a world-wide non-exclusive, royalty-free license to use, reproduce and display all materials Advertiser provides to SGN Games Inc. for disseminating the advertisement and delivering the Campaign, including but not limited to all ad tag code, advertising content, trademarks and brand features and other promotional materials contained therein (collectively, “Materials”).
2. Start Date. The actual start date for any Ads contained in the Insertion Order shall be the earliest date any one advertising element (e.g., banner or logo) covered by the Insertion Order first goes “live” on any SGN Games Inc. online or mobile service (the “Actual Start Date”). If, after the Actual Start Date, any advertising element(s) are delayed from going “live” on the date(s) set forth in the Insertion Order, due to the fault of Advertiser, SGN Games Inc. shall be entitled to reduce the guaranteed impressions owed for such advertising element(s) on a pro-rata basis for each day such advertising element(s) are delayed past the Actual Start Date at no reduction in fee.
3. Materials. With respect to any Campaign, Advertiser will provide all Materials for the Campaigns to SGN Games Inc. in accordance with SGN Games Inc.’s then current policies as may be updated from time-to-time (the “Policies”), including without limitation the manner of transmission to SGN Games Inc., due dates for delivery, technical specifications, privacy policies, and community standards regarding indecency and obscenity. SGN Games Inc. reserves the right in its sole discretion to reject, remove or terminate any Campaign (including without limitation any related links, buttons, boxes or banners) where the Campaign or Materials (or any other site or other materials linked to the Campaign) do not comply with the Policies or any applicable law, rule or regulation. Without limiting the generality of the foregoing, in instances where Advertiser uses ad server tags where SGN Games Inc. does not have direct control over creative, Advertiser shall only display advertisements as specifically indicated in the Insertion Order and shall block the following types of advertisements (each, an “Abusive Ad”) from being delivered to the SGN Games Inc. inventory: (a) any advertisement that conducts any action outside of the specified advertisement size for which the ad-tag has been approved or otherwise fails to conform to the reasonable format and technical specifications set forth by SGN Games Inc. from time to time, including, without limitation, any advertisement with expandable banners, any floating advertisement, and interstitials; (b) any advertisement that incorporates sounds or music unless the user of the website has consented to the initiation of those sounds or music; (c) any advertisement that triggers a pop-up, pop-under, dialogue box, or initiates a downloadable application; (d) any advertisements for online gambling, online pharmacies, pornographic products or services, alcohol, guns, or tobacco; (e) any advertisement that contains any software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment, or otherwise materially, adversely alter the user experience; and (f) any advertisement that contains any content, work, name, mark, designation, materials, or link that, to a reasonable person, may be abusive, obscene, pornographic, defamatory, harassing, grossly offensive, vulgar, threatening, or malicious. Notwithstanding anything to the contrary contained in the Agreement, Advertiser acknowledges that its failure to block an Abusive Ad will constitute a breach of the Agreement entitling SGN Games Inc. to all available remedies in law and equity, including without limitation special, punitive and exemplary damages and indemnification from any third party claim, action or other proceeding arising out of or related to such event.
4. Positioning/Makegoods. Except as otherwise expressly provided in the Insertion Order, positioning of Campaigns within the applicable SGN Games Inc. online or mobile service(s) is at the sole discretion of SGN Games Inc. If SGN Games Inc. fails to provide the guaranteed number of impressions (if any) indicated in the Insertion Order, SGN Games Inc. will make good on the Agreement by providing additional impressions in the amount of the shortfall, which shall be the sole and exclusive remedy for any under delivery of impressions. SGN Games Inc. will not make good for under-delivery due to delays caused by Advertiser.
5. Payment. All payments due are payable to SGN Games Inc. pursuant to the payment terms set forth in the “Campaign Summary” section of the Insertion Order. If the payment terms are “Net 30 Days,” Advertiser must pay all amounts due under the Insertion Order no later than 30 days after the date of the invoice. If the payment terms are “In Advance,” Advertiser must pay all amounts due under the Insertion Order prior to the Actual Start Date and SGN Games Inc. will not have any obligations under the Insertion Order unless and until payment in full is received. Any amounts not paid when due are subject to a finance charge of 1.5% per month or the legal maximum, whichever is less.
6. Ad Servers/Reporting. The parties agree that the delivery of standard Interactive Advertising Bureau (“IAB”) units will be measured using the ad server specified in the Insertion Order for purposes of the Agreement, including without limitation calculating the number of Ads served and payments due. All non-standard IAB units, including without limitation featured profile, pre-roll video, interstitial, instant messaging unit and karaoke unit advertisements, will be measured using the SGN Games Inc. ad server for purposes of the Agreement; provided however, in the event SGN Games Inc. agrees to the engagement of a rich media vendor (“RMV”), the RMV’s ad server will be used to measure delivery for those Ads it serves, unless otherwise specified in the Insertion Order. If the SGN Games Inc. ad server is used to measure delivery, SGN Games Inc. will make online reporting available to Advertiser. In the event SGN Games Inc. agrees in the Insertion Order to use Advertiser’s ad server (or the server of a third party with whom Advertiser subcontracts) to measure delivery, Advertiser will provide SGN Games Inc., prior to the Actual Start Date, with the necessary information (e.g., login and password) for SGN Games Inc. to access the applicable ad server, and SGN Games Inc. will be under no obligation to report to Advertiser any figures related to delivery through SGN Games Inc.’s ad server.
7. Cancellation/Termination. The Insertion Order may be cancelled by Advertiser by providing seven (7) days prior written notice to SGN Games Inc. and may be cancelled by SGN Games Inc. at any time. If Advertiser does not make its payments when due or is otherwise in breach of the Agreement, in addition to any other rights and remedies SGN Games Inc. may be entitled to in law and equity, SGN Games Inc. shall have the right to terminate (and shall have no further obligations under) the Agreement immediately upon written notice to Advertiser. Sections 3, 5, 7, 8, 9, 10 and 11 of the Standard Terms will survive any termination or cancellation of the Agreement.
8. Representations and Warranties/Indemnification. Advertiser hereby represents and warrants that (a) it has all necessary authority and rights to enter into the Agreement and grant SGN Games Inc. the right to deliver the Campaigns and otherwise use and publish the Materials pursuant to the terms and conditions of the Agreement, and (b) the publication and other use by SGN Games Inc. of the Materials pursuant to the terms and conditions of the Agreement will not infringe upon or otherwise violate any law, rule or regulation or any right of any third party including without limitation any intellectual property right, statutory or common law right, or contractual right. Notwithstanding SGN Games Inc.’s right of approval over the Materials, Advertiser hereby agrees to defend, indemnify and hold harmless SGN Games Inc. and its Affiliates and their respective stockholders, directors, officers, employees and agents (collectively, “Related Parties”) against any and all damages, liabilities, expenses and other losses of any kind (including reasonable attorneys fees and costs) in connection with any third party claim, action or other proceeding arising out of or related to (a) any publication or other use of any Campaigns or Materials (or any site or other materials linked to a Campaign) and (b) any actual or alleged breach by Advertiser of any of its representations, warranties, or covenants contained in the Agreement. SGN Games Inc. hereby represents and warrants that it has all necessary authority and rights to enter into the Agreement and perform its obligations hereunder. SGN Games Inc. hereby agrees to defend, indemnify and hold harmless Advertiser and its stockholders, directors, officers, employees and agents against any and all damages, liabilities, expenses and other losses of any kind (including reasonable attorneys fees and costs) in connection with any third party claim, action or other proceeding arising out of or related to any actual or alleged breach by SGN Games Inc. of any of its representations, warranties, or covenants contained in the Agreement.
9. LIMITATION OF LIABILITY. IN THE EVENT THAT SGN GAMES INC. FAILS TO PUBLISH AN ADVERTISEMENT IN CONNECION WITH A CAMPAIGN IN ACCORDANCE WITH THE SCHEDULE SET FORTH IN THE INSERTION ORDER (OR IN THE EVENT OF ANY OTHER FAILURE, TECHNICAL OR OTHERWISE, OF SUCH AD TO APPEAR AS PROVIDED IN THE INSERTION ORDER), OR TO DELIVER THE NUMBER OF IMPRESSIONS GUARANTEED (IF APPLICABLE) OR OTHERWISE SPECIFIED IN THE INSERTION ORDER, THE SOLE LIABILITY OF SGN GAMES INC. TO ADVERTISER SHALL BE LIMITED TO EITHER A PRO RATA REFUND TO ADVERTISER OF THE ADVERTISING FEE PAID, IF ANY, OR PLACEMENT OF THE ADVERTISEMENT AT A LATER TIME IN A COMPARABLE POSITION. EXCEPT IN THE CASE OF ABUSIVE ADS THAT ADVERTISER FAILS TO BLOCK OR A PARTY’S INDEMNIFICATION OBLIGATIONS OR WILLFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY BE RESPONSIBLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, SPECIAL, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION AND THE LIKE, ARISING OUT OF OR RELATED TO THE AGREEMENT, WHETHER BASED ON BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER THEORY IN LAW OR EQUITY EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. NOTHING IN THE AGREEMENT WILL BE CONSTRUED AS A GUARANTEE BY SGN GAMES INC. THAT ADVERTISER WILL REALIZE ANY FINANCIAL BENEFITS OR OTHER SUCCESS AS A RESULT OF THE CAMPAIGN DELIVERED PURSUANT TO THE AGREEMENT.
10. Agencies. In the event the Agreement is entered into by an agency (“Agency”) on behalf of an advertiser, the following shall apply: (a) Agency shall make available to SGN Games Inc. upon request written confirmation of the relationship between Agency and advertiser, including without limitation, advertiser’s acknowledgement that Agency is its agent and is authorized to act on its behalf in connection with the Agreement. In addition, Agency will confirm whether advertiser has paid to Agency in advance funds sufficient to make payments pursuant to the Insertion Order. (b) Agency shall collect and clear payment from its advertisers. In the event Advertiser fails to pay Agency for the Campaign, without limiting any rights and remedies SGN Games Inc. would otherwise have in law and equity, Agency agrees to pursue, and to fully cooperate with any efforts by SGN Games Inc. to pursue, collection from such nonpaying advertiser. (c) Agency hereby represents and warrants that (i) it has the authority as advertiser’s agent to enter into the Agreement and to bind advertiser to the Agreement, and (ii) there is no basis (after due investigation) to question advertiser’s ability or willingness to pay all fees due under the Agreement.
11. Miscellaneous. The headings in the Agreement are provided for convenience only and shall not be used to interpret or modify the Agreement between the parties. SGN Games Inc. shall have no liability for any failure or delay resulting from any governmental action, fire, flood, earthquake, power failure, riot, explosion, labor or material shortage, carrier interruption of any kind, work slowdown or any other condition beyond the control of SGN Games Inc. affecting SGN Games Inc.’s ability to perform its duties and obligations under the Agreement. Advertiser hereby agrees not to disclose any term of the Agreement to any third party except as required by law, rule or regulation and, in such case, only with prior written notice to SGN Games Inc.. The Agreement shall be governed and construed in accordance with the laws of the State of California, without giving effect to principles of conflicts of law, and the parties irrevocably consent to the exclusive jurisdiction and venue of the federal and state courts located in Los Angeles, California. Advertiser may not assign or otherwise transfer any of its rights or obligations under the Agreement without the prior written consent of SGN Games Inc.. Subject to the foregoing limitation, the Agreement will inure to the benefit of and be binding upon the parties, their successors and permitted assigns. The Agreement constitutes the entire agreement between the parties with respect to the subject matter thereof and supersedes all prior oral and written communications, representations, understandings and agreements. It shall not be modified except by a written agreement signed by the parties. In the event of a conflict between the Insertion Order and the Standard Terms, the Standard Terms will control. The terms and conditions set forth in the Agreement will control in the event that there are different or additional terms set forth in any purchase order, invoice, or other document submitted by Advertiser and whether or not signed by SGN Games Inc.. All notices to a party shall be sent to the address set forth in the Insertion Order and shall be deemed delivered (a) three business days after deposit in the U.S. mail (return receipt requested), (b) one business day after being sent by a nationally-recognized overnight courier, and (c) immediately after being delivered in person or sent by email or facsimile. If any provision of the Agreement is held to be unenforceable, the remaining provisions shall remain in full force and effect. The prevailing party in any action to enforce the terms of the Agreement will be entitled to reasonable attorneys’ fees and other costs and expenses incurred by it in connection with such action. The 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.