Services Agreement for SSP Partners

Exhibit A

Terms of Service

  1. Definitions.

      1. “Ad” means digital advertising creative, including text, graphic images, rich media, audio, video, and other advertising materials of any kind whatsoever.
      2. “Ad-tag” means a piece of programming code to enable the display of an Ad through the Service (as defined below). 
      3. “Bid Price” means a Buyer’s winning bid (as determined by Brave) for a given Impression measured on a per thousand impression (CPM) basis. 
      4. “Bid Request” means an ad call sent by Partner for its available Inventory (as defined below).
      5. “Buyer(s)” means Ads buyers, agencies, demand side platforms (DSPs) or other persons or entities who buy Inventory through the Service(s) for the placement of Ads. 
      6. “Impression” means a measurement of responses from an Ad delivery system to an Ad request from Partner’s user’s browser. 
      7. “Intellectual Property Rights” means and refer to all (i) patents and patent applications, and any divisional, continuation, continuation in part, reissue, renewal or re-examination patent issuing therefrom (including any foreign counterparts); (ii) copyrights and registrations thereof; (iii) computer software, including any and all software implementations of algorithms, models and methodologies, whether in source code or object code; (iv) databases and compilations, including any and all data and collections of data, whether machine readable or otherwise; (v) technology supporting any Internet site(s); (vi) trade secrets and other confidential business information, whether patentable or unpatentable and whether or not reduced to practice, know-how, technology, proprietary processes, techniques, methodologies, formulae, algorithms, models, modules, user interfaces, financial, marketing and business data, pricing and cost information, business and marketing plans and customer and supplier lists and information, inventions, source code, object code, and, with respect to all of the foregoing, related confidential documentation; (vii) trademarks, service marks, trade names, domain names and applications and registrations therefor; and (viii) other proprietary rights relating to the foregoing and similar rights of any type under the Laws (as defined below) of any governmental authority, domestic or foreign, including all applications for and registrations of any of the foregoing.
      8. “Inventory” means digital ad space on Partner’s property, including, but not limited to, web, application-based, and video inventory on desktop, mobile, tablet or other devices. 
      9. “Laws” means any federal, state, provincial, county, municipal or other local laws, rules, regulations, ordinances or judicial decisions, including without limitations any EU related regulations and directives (including without limitations GDPR), enacted or issued by a court or other governmental authority of any country, state, province, county, city or other municipality, all as the above shall be from time to time. It is agreed that Laws shall also include any industry practices, rules of self-regulated bodies in the industry and/or any rules, guidelines, policies, terms of use or similar documents of Buyers or Publishers.
      10. “Publisher(s)” means the publishers, networks, supply side platforms (SSPs) or other persons or entities who sell Inventory through the Service(s). 
      11. “Service(s)” means any of the programmatic buying and selling tools and/or any other services provided by Brave from time to time. 

2. Services and Restrictions. 

      1. Partner will use the applicable Service(s) to send Bid Requests, and Brave may provide a bid from its Buyers for such Bid Requests.  
      2. Partner will comply and will contractually require any of its Publishers to comply, with the restrictions set forth in this Agreement.
      3. Partner will not knowingly and/or negligently place Ads on any Inventory that contains or promote any of the following content: obscene, adult or pornographic material; violent content; racial intolerance; hacking/cracking content; Illicit drugs; gambling or promotion of gambling; compensation programs where users are encouraged to click on Ads, perform searches, surf websites, read emails, or similar activities; excessive, repetitive, or irrelevant keywords; weapons or ammunition; illegal or promoting illegal activity; discrimination or infringes on the rights of others; file-sharing or torrent sites; websites made for the sole purpose of clicking on advertisements; misrepresentative, defamatory, libelous or that violates any applicable law or regulation; spyware or malware; inappropriate or controversial subject matter of any nature; hacking, cracking or any page that is “under construction”.
      4. Partner may not, and may not permit any other party to: (i) alter or manipulate any Ads or standard Ads behavior in any way and/or any portion of the Service(s); (ii) use methods to direct traffic to websites from which it sends Bid Requests in violation of this Agreement; or (iii) revise or modify the creative or content of any Ad.
      5. Partner acknowledges that Brave has no responsibility for reviewing the content of any Ad appearing on the Inventory. Brave will contractually require its Buyers to comply with any Brave Ads quality standards or substantially similar guidelines with respect to the Ads in effect from time to time. 

3. Payments and Related Issues. 

      1. Payments are based on the applicable winning Bid Price(s). Payment will be made by Brave to Partner based solely on Brave reporting. Brave will pay Partner within sixty (60) days from the end of the applicable month; provided, however, that Brave reserves the right to withhold any such payment owed hereunder until it has been compensated by the applicable Buyer. Any disputes in relation to the amount owed must be made by Partner within thirty (30) days from the end of the applicable month, or all such claims shall be waived. The parties shall make good faith efforts to resolve any discrepancies. 
      2. In the event Brave is unable to provide Partner with a bid for a Bid Request or provides a Bid Price that Partner does not accept, Brave will not owe any payment for that Bid Request. In addition, Brave will not be obligated to compensate Partner for any winning bid that is responded to by Partner more than thirty (30) seconds after Brave’s submission of such bid, or such other time period as may be in effect from time to time. 
      3. A video Impression is considered served, and compensation shall be based on, the first play of the video frame, as determined by Brave. An Ad served with any companion banner ad will count as a single Impression, as measured by Brave. 
      4. No text or incentives may be used by Partner or its Publishers to encourage visitors to click on any Ads. If in Brave’s reasonable determination, there has been incentivized, computerized or otherwise deceptive, artificial, or non-human means used to increase Impressions, page views, engagement, interactions, click-throughs or any other campaign metric (“Invalid Traffic”), Brave may terminate this Agreement immediately upon notice to Partner, and Partner will forfeit all fees under this Agreement, including those previously paid, which are related to the Invalid Traffic. Invalid Traffic may include, but is not limited to, repeated manual clicks or Impressions, use of robots, automated click and Impression generating tools, third-party services generating clicks or Impressions such as paid-to-click, paid-to-surf, auto-surf, and click-exchange programs, or any deceptive software. Notwithstanding anything to the contrary above, no deduction shall be made for Invalid Traffic unless Brave has provided Partner with a written report by a reputable third-party traffic screening company, evidencing the Invalid Traffic.

4. Term; Termination.

      1. This Agreement will be effective as of the Effective Date and continue in full force and effect until terminated by either party upon forty-eight (48) hours prior written notice. 
      2. Either party may immediately terminate this Agreement upon written notice, if: the other party has breached this Agreement and failed to cure such breach within thirty (30) days from receiving a written notice. 
      3. Brave may immediately suspend Partner’s access to and use of the Service, or terminate this Agreement upon written notice if Brave determines, in its sole reasonable discretions that: (a) Partner’s continued use of the Service could damage the Service, Brave’s business or reputation, or otherwise reflect unfavorably upon Brave or its Buyers; (b) Partner’s bid response time consistently falls below any requirements set forth in Brave’s technical specifications provided to Partner from time to time; or (c) any Inventory violates the Brave inventory guidelines. 
      4. Upon termination of this Agreement for any reason: (i) each party will return, or at the disclosing party’s request destroy, all Confidential Information (as defined below) and other materials of the other party in its possession, and (ii) the provisions of this Agreement, which, by their nature would be expected to continue beyond the termination, cancellation or expiration of this Agreement, shall survive termination, cancellation or expiration of this Agreement. Any termination by Brave as detailed under section 4(‎b) and 4(‎c) will be without liability for payment relating to such violation or breach. 

5. Representations and Warranties; Disclaimer of Warranties. 

      1. Partner represents, warrants and covenants that at all times Partner has all necessary rights, authorizations and consents to: (i) enter into this Agreement; (ii) permit the placement of Ads on the Inventory; and (iii) grant Brave and Buyers the rights and licenses provided hereunder, including all necessary rights to the Inventory without violating the rights or consent of any person or entity, including any right to privacy or publicity. Partner is solely responsible and liable to ensure that Partner and any of its Publishers, act according to, and are aware of, Brave’s current Supply Partner Guidelines, which are available at https://www.thebrave.io/brave-supply-partner-guidelines/, and undertake the obligation to fully comply with such guidelines. 
      2. Partner further represents, warrants and covenants that at all times: (i) it shall not make any Inventory available with content that infringes upon any copyright, patent or any other third party right, or violates any applicable law or regulation; (ii) it shall not modify any Ad-tag provided by Brave in such a way as to adversely impact delivery of the Ad or an end-user’s ability to view an Ad; (iii) it shall not disclose a Buyer’s availability, volume, bidding, or pricing data obtained through the Services without the Buyer’s written consent; (iv) it shall not pass, or assist or permit any third party to pass, incomplete or incorrect data or information related to a Bid Request; (v) Partner’s use of the Service, and any collection, use and storage of data in connection therewith shall  comply with all Laws, including without limitations, any privacy laws and Partner shall ensure that the data shared with Brave shall not include any sensitive information including, without limitation, personal health information and/or children data; (vi) Partner is not a Covered Person, nor does it conduct any Restricted Transactions, as those terms are defined in 28 C.F.R. Part 202, and should it become a Covered Person it will notify Brave immediately, or (vii) Partner will not, directly or indirectly, introduce viruses, spyware or other malicious code into the Services. 
      3. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. BRAVE EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND RELATED TO THE SERVICES, WHETHER IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. BRAVE RESERVES THE RIGHT TO MODIFY, SUSPEND OR DISCONTINUE ANY ASPECT OF THE SERVICES AT ANY TIME, AND WILL NOT BE LIABLE TO PARTNER OR ANY THIRD PARTY SHOULD IT EXERCISE SUCH RIGHT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BRAVE DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE, AND SHALL NOT BE LIABLE FOR ANY UNAVAILABILITY OR INOPERABILITY OF THE INTERNET, ANY TECHNICAL MALFUNCTION, COMPUTER ERROR, CORRUPTION OR LOSS OF INFORMATION, OR CONTENT OF ANY AD. 

6. License. 

      1. Subject to the terms and conditions of this Agreement, Brave grants to Partner a non-exclusive, non-transferable, revocable right and license to use the Service(s) for the sole purpose of sending Bid Requests, receiving bid responses, and having Ads delivered hereunder, without the right to sublicense. Partner will not transfer or disclose, in whole or in part, access to the Services to any third party in violation of this Agreement. Brave will not be responsible or liable for any of Partner’s decisions or actions resulting from Brave’s suggestions in connection with Partner’s use of the Services. Partner agrees to comply with all applicable Laws in connection with Partner’s use of the Services. 
      2. Except as expressly permitted in this Agreement, Partner agrees not to: (i) reproduce or distribute the Service(s) or any portion thereof; (ii) use or authorize use of the Service(s) for any purpose not specified in this Agreement; (iii) copy, transfer, sell, lease, syndicate, or use for co-branding, timesharing, service bureau, arbitrage or other unauthorized purposes the Service(s) or access thereto; or (iv) modify, prepare derivative works of, translate, reverse engineer, decompile, or disassemble the Service(s) or any portion thereof, or attempt to do any of the foregoing.

7. Ownership; Confidentiality.

      1. Partner agrees that, as between the parties, Brave owns and retains all right, title and interest in and to the Service(s), including without limitations, to all platforms, software, databases and other aspects and technologies related to the above, any enhancements, modifications or derivative works thereto, any materials made accessible to Partner by Brave through the Service(s) or otherwise, and all Intellectual Property Rights in and to all of the foregoing. Partner further acknowledges that the Service(s) contains the valuable trade secrets and Confidential Information (as such term is defined below) of Brave and its third-party licensors and that any breach by Partner of the license restrictions contained herein or of Brave’s proprietary rights in the Service(s) is likely to cause Brave substantial and irreparable harm and will not be susceptible of cure by the payment of monetary damages.
      2. The parties acknowledge that each shall keep confidential the terms of this Agreement and any data or information of a confidential or proprietary nature obtained from the other party in the course of performing their respective duties under this Agreement, including non-public inventions, patents, patent applications, discoveries, “know-how”, technology, improvements provided or developed by the disclosing party, ideas, samples, media, techniques, works of authorship, and software programs; information concerning business plans, marketing strategy, research, development, financial information, customer lists, investors, employees, business and contractual relationships, sales and merchandising, and information the disclosing party provides about third parties (“Confidential Information”). Data or information will be considered Confidential Information if a party, orally or in writing, has advised the other party of its confidential or proprietary nature, or due to its character and nature, a reasonable person under like circumstances would understand it as confidential. 
      3. Neither party will (a) publish, disclose or otherwise divulge any of the other party’s Confidential Information to any person, except its officers, employees or agents (“Representatives”) with a need to know who are under a contractual or professional duty to maintain the confidentiality of such information consistent with the obligations imposed hereunder; provided however, that the receiving party shall be liable for any breach of this Section ‎7 caused by any of its Representatives, to the same extent it is liable under this Agreement; or (b) permit its Representatives to divulge any of the other party’s Confidential Information without the express prior written consent of the other party. The receiving party will protect the disclosing party’s Confidential Information with the same degree of care that the receiving party uses to protect its own information of a similar nature, but in no event less than a degree of reasonable care. Neither party will use the other party’s Confidential Information except in the course of performing its duties under this Agreement.  
      4. The foregoing obligations will not apply to any Confidential Information that (i) is already known to the receiving party; (ii) is or becomes publicly known through no wrongful act of the receiving party; (iii) is independently developed by the receiving party without use of the disclosing party’s Confidential Information; (iv) is received from a source other than the disclosing party, which source is not known by receiving party to be in breach of an obligation of confidentiality owed to disclosing party; or (v) is required or reasonably necessary to be disclosed to comply with applicable Laws. Additionally, neither party will be prohibited from disclosing the terms of this Agreement to financial institutions when required to obtain financing or to a third party involved with a potential merger or acquisition (either as target or acquirer). The obligations of confidentiality described in this Section ‎7 will expire five (5) years after the expiration or termination of this Agreement.

8. Privacy; Data Usage. 

    1. The parties agree to the terms of the Data Sharing Addendum (“DSA”) available at: https://www.thebrave.io/data-sharing-addendum-supply, with respect to any processing of Personal Data (as this term is defined in the DSA) under the Agreement. The DSA forms an integral part of this Agreement.
    2. Partner will comply and will contractually require that any of its Publishers comply, with all Laws, and will make all necessary disclosures and obtain all necessary and required consents, licenses, waivers, authorizations and/or permissions under such Laws for the activities of Brave and Partner under the terms of this Agreement. Should such a consent, license, waiver, authorization and/or permission be revoked by a person and communicated to Partner, Partner shall be responsible for communicating the fact of such revocation (e.g. opt-out or withdraw consent) to Brave without undue delay.
    3. Partner further agrees, and agrees to contractually require each of its Publishers, to conspicuously post a privacy policy that complies with all Laws, and that accurately discloses Partner’s (or the applicable Publisher’s) practices with respect to data collection, use, disclosure and consent, including, but not limited to: (i) the types of data being collected for the purposes of displacement of Ads, including, but not limited to, personally-identifiable information such as IP address, advertisement ID, consent string or any other identifiers, ; (ii) the circumstances under which such data will be disclosed to, or used by, third parties and the purposes therefor; (iii) the use of one or more third parties for ad serving activities; and (iv) a conspicuous link to an industry-standard opt-out mechanism(s), such as the opt-out page(s)/tool(s) of the Network Advertising Initiative and/or the Digital Advertising Alliance. 
    4. Brave or a third-party partner acting on behalf of Brave, may use cookie-based and/or other ad serving technologies and/or third-party data in the performance, developing, maintaining, and improving the Services hereunder. Partner hereby grants Brave the right to access, collect, store, share, distribute, sublicense, and use any data and information obtained in connection with, analyzed or processed by, the Services that is related to the Inventory and Inventory users for the purposes of: (i) providing the Services and performing Brave’s obligations hereunder; (ii) optimizing the Services and creating audience segments; (iii) combining with Brave or third-party data; (iv) user identification, audience targeting, and reporting and measurement of Ads; and (v) offering the audience segments which incorporate the data to third parties for ad targeting and any other lawful purpose. For the avoidance of doubt, the Partner data shall remain the owner of the data, subject to the rights or permissions herein. 

9. Indemnification. 

    1. Partner shall indemnify, defend and hold harmless Brave, its affiliates, Buyers, partners, agents, officers, directors and employees from and against any liability, loss, cost, expense, claim, injury or damage (including, without limitation, reasonable attorneys’ fees and expenses) due to third party claims awarded by a final court ruling (collectively, “Losses”),  arising out of or caused by (i) Partner’s breach of any of its representations, warranties, or provisions contained in this Agreement; or (ii) any damages or claims, including lost advertising revenue, resulting from any Invalid Traffic. Brave shall indemnify Partner, its affiliates, partners, agents, officers, directors and employees from and against any Losses arising out of or caused by its breach of third party intellectual property rights. 
    2. The indemnified party must: (i) promptly notify the indemnifying party in writing of any claim, provided that any delay in providing notice shall not relieve the indemnifying party of its indemnity obligations, except to the extent that it has been prejudiced by such failure; (ii) reasonably cooperate with the indemnifying party in the defense of the matter; and (iii) give the indemnifying party primary control of the defense and all negotiations related to settlement of any claim(s), 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. The indemnified party may, at its own expense, join in the defense with counsel of its choice. 

10. Limitation of Liability.

  1. No Consequential Damages. TO THE FULLEST EXTENT PERMITTED BY LAW, REGARDLESS OF THE THEORY OR TYPE OF CLAIM, AND EXCEPT WITH RESPECT TO INVALID TRAFFIC BY A PARTY TO THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY IS AWARE OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE), ARISING FROM OR RELATED TO THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR REVENUE, LOST BUSINESS OR COST OF REPLACEMENT SERVICES.
  2. LIABILITY CAP. TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT WITH RESPECT TO INVALID TRAFFIC BY A PARTY TO THIS AGREEMENT, WILLFUL MISCONDUCT OR GROSS NEGLIGENCE WHICH SHALL BE UNCAPPED,  IN NO EVENT WILL EITHER PARTY’S AGGREGATE AND TOTAL LIABILITY FOR ALL CLAIMS HEREUNDER EXCEED THE PAYMENTS MADE BY BRAVE TO PARTNER IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.

11. Assignment.

This Agreement may not be assigned, transferred, delegated, sold or otherwise disposed of, including without limitation by operation of law, without the prior written consent of the non-assigning party; provided that either party may assign this Agreement to an affiliate or to a successor without such consent in connection with a merger, acquisition, change of control, consolidation, similar transaction or the sale of all or substantially all its assets. This Agreement will be binding upon and will inure to the benefit of a party’s permitted successors and assigns. Any purported assignment, transfer, delegation, sale or other disposition in contravention of this Section, including without limitation by operation of law, is null and void.

12. Publicity. 

Brave may use Partner’s name and logo in Brave’s customer lists, financial reports, any marketing materials and on Brave’s website. Neither party shall issue a press release or other public announcement concerning this Agreement or the parties’ relationship without the prior written consent of the other party, which consent shall not be withheld unreasonably.

13. Miscellaneous.  

This Agreement will be governed and interpreted in accordance with the laws of the State of Israel without reference to conflicts of law principles. Jurisdiction and venue for all disputes hereunder shall be in Tel Aviv, Israel, and the parties hereby expressly agree to such jurisdiction and venue. Except where otherwise indicated, all notices under this Agreement will be in writing and will be delivered by confirmed email, personal service, confirmed fax, express courier, or certified mail, return receipt requested. For Brave, notices shall be sent to [email protected] , to the attention of the CEO. For Partner, notices shall be sent to the contact and address indicated on the Info Page. Either party may designate a different address by written notice to the other party in accordance with this Section. Notice will be effective on receipt. Headings and captions are for convenience only and are not to be used in the interpretation of the Agreement. This Agreement will be interpreted equally as to both parties and not against the party that drafted it. No failure of either party to enforce any of its rights under this Agreement will act as a waiver of such rights. If one or more provisions of this Agreement are held to be unenforceable under applicable law, then such provision(s) shall be excluded from this Agreement, and the balance of the Agreement shall be enforceable in accordance with its terms. Brave shall not be liable for any delay or failure to perform any of its obligations set forth in this Agreement due to causes beyond its reasonable control. Brave and Partner shall each act as independent contractors. Nothing in this Agreement shall be construed as creating a joint venture or partnership between the parties. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior communications, agreements, understandings, or arrangements between the parties with respect thereto. This Agreement may not be modified without the prior written consent of both parties. This Agreement may be executed in two counterparts, both of which taken together will constitute a single instrument.