Max Monetization Player Terms of Service

In addition to the terms and conditions found in the Order Form and Terms of Service at https://jwplayer.com/legal/tos/, (the “JWP TOS”) Customer purchasing and using the Max Monetization Player (the “MMP”) acknowledges and agrees to the following additional terms applicable to the MMP (the “MMPTOS”), which shall be incorporated into the Order Form. This MMPTOS shall govern Publisher’s use of the MMP and form part of the TOS.  The MMPTOS shall, to the maximum extent possible, be interpreted as consistent with, and supplemental to, the TOS.  In the event of any conflict or inconsistency between the terms of the MMPTOS, an insertion order (“IO”), the TOS, an Order Form, and an Addendum, the order of precedence shall be the IO highest, an Order Form second, the MMPTOS third, an Addendum fourth, and the TOS lowest.

Capitalized terms used in the MMPTOS and not otherwise defined herein have the meanings assigned to such terms in the IO or TOS, as applicable.

The Max Monetization Player

The MMP is an instance of the JW Player video player that provides for the Company’s control over the configuration, management, delivery, and optimization of all programmatic video advertising delivered therethrough (the “Monetization Services”).

Publisher acknowledges that Company shall have sole and exclusive control over the Monetization Services, including ad stack setup, content selection, and MMP behavior.  Company and Publisher shall cooperate to onboard Publisher’s account, implement block lists, determine MMP embed locations, and perform technical troubleshooting. Publisher further acknowledges that in providing the Monetization Services (i) Company shall use its professional judgement and discretion and (ii) Company may, in its sole discretion, engage and utilize third parties.

Publisher grants to Company a non-exclusive, worldwide royalty free, revocable right and license to use, copy, distribute, display publicly, and make commercial use of Content for the purpose of providing the Monetization Services.

Publisher Properties

The MMP may be used on such Publisher websites and other online properties as are set forth on an applicable IO (the “Properties”).  Properties may be added to or removed from an IO by mutual written agreement, which may require either an amendment to the existing IO or the execution of a replacement IO.

Publisher is prohibited from posting, uploading, submitting, playing or otherwise Distributing any Prohibited Content on the Properties.  Company is under no obligation to review the Properties or Content for suitability, appropriateness, lawfulness, or in any other respect.  Company reserves the right to immediately remove or suspend any Property from the Monetization Services if Company determines, in its sole discretion, that such Property contains Prohibited Content or otherwise violates the terms of the MMPTOS or TOS.

Revenue Share

Revenue Share, if any, (as defined below) shall be set forth on the applicable IO. Revenue Share shall only be paid on a Qualifying Transaction (as defined below). Unless otherwise provided by the applicable IO, Revenue Share shall be paid to Publisher within 60 days following the end of the calendar month in which the applicable revenue is received by Company.  Company reserves the right to pay Revenue Share only when the payment due exceeds USD $100, and Company shall have the right to withhold payment, without interest or penalty, until the total Revenue Share due exceeds this minimum.  Revenue Share shall be based on payments received by Company from advertisers and shall be net of any rebates, refunds, ad serving or bidder fees, agency fees, third party fees and commissions, make-goods and/or other set-offs of any kind, if any. Publisher’s Dashboard shall display net bids only.  Company shall not be responsible for any non-payment by advertisers.  As used herein, “Revenue Share” means the percentage of fees derived from the MMP to which Publisher is entitled, as provided by an applicable IO.

All payments due to Publisher are exclusive of Taxes. Publisher will be responsible for payment of all Taxes (except Company’s corporate taxes), currency settlements, and any related interest and penalties resulting from any payments made hereunder; provided, however, that we will withhold any tax required under applicable law, unless a duly issued certificate from the relevant tax authorities are provided.

“Qualifying Transaction” means a transaction that occurs when a bona fide user generates an impression in relation to the advertisement that appears in one of the Properties, provided that such user does not block his, her or its device ID. Transactions due to Illegitimate Traffic (as defined below) shall not be considered Qualifying Transactions. As used herein, “Illegitimate Traffic” means any traffic, clicks, or other transactions resulting from injection traffic, incentivized traffic, bot traffic, automatic injections by toolbars or other fraudulent or misleading activities, as determined by the Company or any third party service used by the Company.

Revenue Share shall be measured and calculated solely according to Company’s tracking (including tracking related to revenue and campaign-related metrics such as impressions, and completion rates), which shall be made available to Publisher on request.  Company shall have the exclusive right to collect all fees and payments from advertisers.

Restrictions on Use

Publisher shall not (i) hinder, circumvent, or otherwise interfere with Company’s provision of Monetization Services or the operation of the MMP; (ii) engage in Illegitimate Traffic or otherwise artificially inflate traffic, clicks, or other transactions on the Properties; (iii) obscure, modify, block, or otherwise interfere with the display of any advertisements served through the MMP; (iv) post, upload, submit, play, display, or Distribute any Prohibited Content or Objectionable Content (as defined below) through the MMP or on any Properties; or (v) implement the MMP on any Properties that (a) are of Low Content Value (as defined below); (b) when viewed or clicked prompt the download or delivery of any software (without effective user consent); (c) contain pop-up advertisements, video advertisements that auto-play audio, display more than three (3) advertisements in view at a time, or do not label advertisements as such when embedded in the Content; (d) if rated by NewsGuard, an independent company that provides credibility ratings of news and information sites, do not have a minimum total score of 60, unless such Property is rated by NewGuard as “Satire” or “Platform”; or (e) is not compliant in accordance with the Better Ads Standards set forth by the Coalition for Better Ads. As used herein, “Objectionable Content” shall mean content that promotes or contains links to content that (i) offers or disseminates any fraudulent goods, services, schemes, investment opportunities, promotions or advice not permitted by law; (ii) promotes gambling, the use of illegal substances, or the consumption of alcoholic beverages or tobacco-related products; (iii) directed or primarily appeals to children under the age of 16; (iv) promotes the use of firearms, ammunition, or weapons of any kind; (v) depicts death or injury; (v) offers services to facilitate marriage or adoption; (vi) promotes dishonest or predatory services; (vii) is considered to be restricted or prohibited content under industry standards; or (viii) is unacceptable in Company’s sole discretion. As used herein, “Low Content Value” shall mean websites or individual pages which (i) do not include any Publisher produced Content; (ii) include only replicated or boilerplate material or material attributed to fictional authors; (iii) display more advertisements or paid promotional material than Content; (iv) display advertisements in a background tab or window separate from the page on which the Content is displayed; (v) that are under construction or dead domains; or (vi) contain live streaming of user-generated Content (with the exception of sports, concerts, and other public events) or significant unmoderated user generated Content. Publisher agrees that Company, or anyone appointed on its behalf, shall have the right, but not the obligation, to monitor Publisher’s compliance with this MMPTOS.

No Revenue Share shall be due for Properties or Content in violation of this Section and Company may, in its sole discretion, withhold or accrue a credit against Revenue Share for any payments derived therefrom.

Representations and Warranties

Publisher represents and warrants that (i) Publisher is the owner of all Properties or is legally authorized to act on behalf of the owner of such Properties; (ii) the Properties comply with all applicable laws and regulations including, but not limited, to the Children’s Online Privacy Protection Act, without limitation, the California Consumer Privacy Act, the California Privacy Rights Act, the European Union General Data Protection Regulation (EU 2016/679) (collectively, the “Privacy Laws”), the Can-Spam Act of 2003, the Federal Trade Commission Act and the Digital Millennium Copyright Act; (iii) Publisher has obtained all consents, authorizations and clearances from end users of the Properties required in connection with the use of cookies, beacons, and other technologies

Term

The term of these MMPTOS will commence on the date on which the first IO hereunder is effective and shall continue until the termination or expiration of all IOs.  Unless otherwise provided on the applicable IO, each IO may be terminated by Company or Publisher on ten (10) days written notice.

Termination

An IO is subject to immediate termination by Company and/or Publisher’s account may be suspended if the TOS or an Order Form is terminated and/or Publisher’s account is suspended pursuant to subsections (a) – (e) of the TOS “Termination” section.

Effects of Termination

Upon expiration or termination of an IO for any reason, Company shall immediately cease providing Monetization Services and Publisher shall immediately cease Use of the MMP and remove the MMP from its Properties.  Undisputed Revenue Share that accrued prior to such expiration or termination shall be paid within 60 days.  All provisions of the MMPTOS which by their nature should survive termination, will survive termination.

Data Usage and Privacy

Publisher hereby grants Company and any of its related affiliates a perpetual, irrevocable, fully paid-up, worldwide, sublicensable right and license to use, copy, modify, transfer, store, and distribute all Data collected through or derived from the MMP and Monetization Services and to share such Data with applicable advertising partners.

Publisher is solely responsible for adopting any necessary measures to limit or restrict access to the Properties, as required by applicable law and/or industry best practices, including with respect to the protection of minors or children. Publisher shall ensure that the Publisher Properties shall provide or make available to users of each Property a privacy notification in a conspicuous manner (via a privacy policy or other method appropriate for the type of such Property, including mobile applications) which (i) complies with all applicable laws, rules, regulations, and industry standards, including the Advertising Alliance Self-Governing Principles and the Network Advertising Initiative and their equivalent in other applicable countries or any future industry standards; (ii) to the extent applicable to the type of such Property, discloses to users of such Property that cookies, web beacons, eTags, web or browser cache, and other technologies that may be used in connection with such Property and discloses that browser settings that block cookies maya have no effect on such technologies; (iii) fully and accurately disclosed to such users Publisher’s  policy regarding the collection, use and disclosure of users’ personal data, including precise location data, sensitive data, sensor data or personal directory data; (iv) contains a disclosure that data collected from a particular browser or device may be used in conjunction with another computer or device that is linked to the browser or device on which such data was collected; and (v) if such Property is accessible via hypertext transfer protocol (http), provides a link to http://www.networkadvertising.org (or similar) and a statement that users can click on such link for information on how to opt-out of the use of such technologies for the delivery of more relevant advertising.

DISCLAIMER OF WARRANTY

THE AVAILABILITY AND FUNCTIONALITY OF THE MMP DEPEND ON VARIOUS FACTORS AND ELEMENTS, INCLUDING SOFTWARE, HARDWARE, SERVICES AND COMMUNICATION NETWORKS, SOME OF WHICH ARE PROVIDED OR CONTROLLED BY THIRD PARTIES. THESE FACTORS ARE NOT FAULT FREE. COMPANY DOES NOT REPRESENT, WARRANT OR GUARANTEE THAT THE MMP WILL OPERATE WITHOUT DISRUPTION, ERRORS OR INTERRUPTIONS, OR THAT IT WILL BE ACCESSIBLE, OR AVAILABLE AT ALL TIMES, OR IMMUNE FROM UNAUTHORIZED ACCESS OR ERROR FREE.

COMPANY MAKES NO REPRESENTATIONS, WARRANTIES, OR GUARANTEES WITH RESPECT TO THE PERFORMANCE OF THE MMP OR MONETIZATION SERVICES, INCLUDING ANY PARTICULAR RESULT, RETURN ON INVESTMENT REVENUE, EXPOSURE, TRAFFIC, CONVERSIONS, OR RELEVANCY OF ADVERTISEMENTS.  PUBLISHER ACKNOWLEDGES THAT NUMEROUS FACTORS AFFECT THE EFFECTIVENESS OF ADVERTISING CAMPAIGNS AND THAT THE MMP, MONETIZATION SERVICES, AND ADVERTISING CAMPAIGNS MAY NOT PRODUCE THE OUTCOMES PUBLISHER DESIRES.

EXCEPT AS OTHERWISE PROVIDED AND TO THE MAXIMUM EXTENT ALLOWED BY LAW, THE MMP AND MONETIZATION SERVICES ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OR CONDITIONS OF TITLE, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS OTHERWISE PROVIDED, USE OF THE MMP IS AT PUBLISHER’S OWN RISK AND PUBLISHER IS SOLELY RESPONSIBLE FOR DETERMINING THE APPROPRIATENESS OF EXERCISING THE RIGHTS GRANTED UNDER THIS AGREEMENT AND ASSUMES ALL RISKS ASSOCIATED THEREWITH, INCLUDING BUT NOT LIMITED TO THE RISKS AND COSTS OF INEFFECTIVE CAMPAIGNS, PROGRAM ERRORS, COMPLIANCE WITH APPLICABLE LAWS, DAMAGE TO OR LOSS OF DATA, PROGRAMS OR EQUIPMENT, SUITABILITY FOR HOSTING AND UNAVAILABILITY OR INTERRUPTION. COMPANY DOES NOT PRE-SCREEN, AND IS NOT RESPONSIBLE FOR, ANY CONTENT OR INFORMATION MADE AVAILABLE ON OR LINKED FROM ANY PROPERTY, ADVERTISEMENT, OR DEMAND SOURCE.  COMPANY MAKES NO REPRESENTATIONS, WARRANTIES, OR GUARANTEES REGARDING ANY SUCH MATERIALS.

LIMITATION OF LIABILITY

EXCEPT TO THE EXTENT REQUIRED BY APPLICABLE LAW OR TO THE EXTENT THAT ANY EXCLUSION OR LIMITATION OF ITS LIABILITY IS VOID, PROHIBITED OR UNENFORCEABLE, IN NO EVENT SHALL THE COMPANY BE LIABLE UNDER ANY EQUITY, COMMON LAW, CONTRACT, ESTOPPEL, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER THEORY (REGARDLESS OF THE FORM OF ACTION) (A) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING LOSS OF PROFITS, REVENUES, WEBSITE TRAFFIC, SAVINGS, CUSTOMERS, OPPORTUNITIES OR GOODWILL), (B) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL OR (C) FOR ANY LOSS, CORRUPTION OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY IS NOT RESPONSIBLE FOR ANY WEB SITE OR APPLICATION THAT CAN BE LINKED FROM ANY ADVERTISEMENT PLACED ON THE PROPERTIES OR FOR THE RESULTS OF ANY ACT OR OMISSION OF ANY ADVERTISER OR ANY OF COMPANY’S SERVICE PROVIDERS.

IN NO EVENT WILL THE COMPANY’S CUMULATIVE AGGREGATE LIABILITY ARISING OUT ITS PROVISION OF THE MMP AND MONETIZATION SERVICES FROM ANY CAUSE OF ACTION WHATSOEVER EXCEED: (I) IF THE APPLICABLE IO PROVIDES FOR REVENUE SHARE, THE TOTAL REVENUE SHARE RETAINED BY COMPANY PURSUANT SUCH IO DURING THE SIX (6) MONTHS PRIOR TO THE DATE THE CAUSE OF ACTION AROSE; OR (II) IF THE APPLICABLE IO DOES NOT PROVIDE FOR REVENUE SHARE, THE TOTAL FEES PAID BY PUBLISHER TO THE COMPANY FOR PUBLISHER’S USE OF PRODUCTS IN CONNECTION WITH SUCH IO DURING THE SIX (6) MONTHS PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.  THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS MMPTOS AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.  THESE LIMITATIONS OF LIABILITY SUPERSEDE COMPANY’S LIMITATIONS OF LIABILITY PROVIDED IN THE TOS WITH RESPECT TO THE SUBJECT MATTER HEREOF.

EACH PARTY AGREES AND DOES WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT AGAINST THE OTHER PARTY FOR ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS MMPTOS. NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST COMPANY MORE THAN ONE YEAR AFTER THE DATE OF RELATED SERVICES.

Indemnity

Publisher will indemnify, defend and hold harmless the Company and its employees, officers and agents from and against all Claims, and for all resulting Losses (including attorney’s fees) that result or arise from Claims, which in whole or in part, arise from Publisher’s breach of its representations and warranties or violations of Publisher’s obligations in this MMPTOS.  Publisher will pay all amounts agreed to in a monetary settlement of the Claims and all Losses that result or arise from the Claims. Notwithstanding the foregoing, Publisher shall have no duty to indemnify or defend the Company from Claims which primarily allege that the MMP infringes the copyright, patent, or trademark rights of a third party.

Last Revised: May 1, 2023