LMX Master Terms and Conditions for Publishers

Last Updated: Jan 01, 2021

LMX Master Terms and Conditions for Publishers

THIS LMX Master Terms and Conditions (including any terms set forth in an Order Form, Annexure, schedule addendum hereto) (“Agreement“), effective as of the date of last signature below (“Effective Date”), is entered into by and between Location Media Exchange Pte. Ltd. (hereinafter called “LMX”), and the entity executing this Agreement (hereinafter called “Publisher”), (LMX and Publisher, the “Party” or “Parties”).

By accepting these LMX Master Terms and Conditions (“Master Terms”) and establishing an online account (the “Account”) with LMX on its Publisher software (“LMX Services”), the publisher establishing the Account (“Publisher” or “you”) acknowledges and agrees that it is forming a valid and binding agreement between LMX and Publisher.

NOW, THEREFORE, for good and valuable consideration, the receipt of which is hereby acknowledged, LMX and Publisher hereby agree as follows:

Definitions

In this Agreement except to the extent expressly provided otherwise:

  • “Acceptance Date” means the date upon which the Agreement and License is approved by DSP in accordance with Section 3.
  • “Account” means online account with LMX Software
  • “Ad” means a creative unit including but not limited to images, video, custom content, messages, and other forms of advertisements and creative units, containing tags that are served onto the Advertising Inventory. 
  • “Advertising Inventory” means the advertising space available where Ads can be displayed, including, images, video, custom content, messages, and other forms of advertisements and creative units, which are made available through and delivered for auction on the LMX, including the Deliverables. 
  • “Advertising Materials” means artwork, copy, or URLs for advertisements, and the tags therefor. 
  • “Agreement” means this Master Terms  including any, Publisher Order forms, Schedules, and any amendments to this Agreement from time to time;
  • “API” means SSP’s application programming interface, and its related tools and information, which will interact with the DSP.
  • “Bid Data” means a Client’s own data and information, including the Advertising Materials and the Client’s CPM-based bid price for any particular Deliverable. 
  • “Bid Request” means any request sent through the DSP for bids on a Deliverable. Each Bid Request shall include certain parameters, consistent with SSP’s management of the Exchange’s user interface, which may or may not be aligned with any Client’s Bid Data. 
  • “Bid” means a response to a Bid Request, submitted to the SSP by a DSP through the API, based on the Bid Data, that will be entered into the auction that is completed for the applicable Deliverable (as further set out in the Functional Specifications). 
  • “Business Day” means any day other than a Saturday, Sunday or statutory holiday in the Country of business operations where this agreement is valid.
  • “Business Hours” means the hours of 09:30 to 17:30 Territory Standard Time on a Business Day;
  • “Clients” means the agencies, advertisers and/or group of advertisers, in each case as approved by SSP (in writing, by e-mail or by course of conduct), that purchase (directly or indirectly) Advertising Inventory to place advertisements on the Advertising Inventory. 
  • “Company Data” means Bid Data, and any data that identifies Company or their Clients that is collected from any of their Advertising campaigns.
  • “Company Platform” means Company’s proprietary Demand side advertisement trading platform, or DSP.
  • “CPM” (cost per Mille/Thousand) means a form of digital media currency, describing the cost for 1,000 impressions or views of an Ad delivered on the “Advertising Inventory”. 1,000 is represented in the term by the Roman numeral ‘M.’ 
  • “Deliverables” means the impression inventory delivered by SSP for auction through the Exchange.
  • “Demand-Side Platform” or “DSP” means online advertising platform, including all related technology, software, tools and infrastructure, that allows buyers to purchase, Advertising inventory (across displays that are owned, operated or controlled by SSP, or to which SSP has a contractual right to serve advertisements) delivered for auction by SSP. 
  • “DOOH” Also called digital out of home means Digital media messaging specifically intended to reach consumers outside their homes for example retail, road, transit, malls, grocery, health clubs, medical offices, gas stations, office buildings, hotels and other out of home consumer venues.
  • “Effective Date” shall have the meaning set out above;
  • “Functional Specifications” means, subject to being finalized by the parties, the functionality, attributes and performance specifications of the Exchange, as set out in Exhibit A (which Functional Specifications shall be substantially similar to, and dependent upon, the underlying functionality, attributes and performance specifications of the SSP as of the Launch Date).
  • “GDPR” means European Union General Data Protection Regulation (EU) 2016/679; 
  • Gross Revenue” is the Cost of Media as shown on the platform and payable by the Agency or Advertiser on the face of any invoice, including the deduction of any commissions or rebates shown on the face of the invoice.
  • “Intellectual Property” means property or right as defined in Section <10> below. 
  • “LMX  Data” means (i) the data used by the LMX SSP for bidding and delivery, data collected solely from and relating to advertisements sold and delivered as part of the Advertising Inventory, excluding any information that directly or indirectly connects such data to the applicable Inventory or its brand, content and context.  
  • “LMX SSP” means LMX’s proprietary supply side trading platform where Company and Company Clients may bid on and purchase ad impressions on Inventory.
  • “Media Revenues” means the total Publisher revenues for out-of-home advertising inventory sold and delivered by LMX to Advertisers via LMX’ proprietary platform. The exact amount of the Media Revenues depends on the amount of inventory bought by Advertisers and the cost of the inventory to LMX as defined in LMX’ proprietary platform.
  • “Minimum Price” means, in connection with any Inventory, a minimum CPM-based bid price therefore.
  • “Publisher” or “you” means the publisher establishing the Account
  • “Tags” means scripts that communicate with servers designated by DSP and request transmission from those servers of advertisements.
  • “Taxes” means all taxes, levies, imposts, deductions, charges or withholdings and all related liabilities, including interest, penalties or additions thereto.
  • “Territory” means the country defined in the signing page of this Agreement.
  • Net Revenue” is the Gross Revenue less:
    1. any discounts; agency or advertiser commissions or other rebates
    2. any applicable taxes
  1. Term
    1. The term of this Agreement shall commence on the date that Publisher establishes an account with LMX (the “Effective Date”) for an initial period defined in the “Order form” . Following the Initial Term, this Agreement will automatically renew for successive twelve [12] month periods (each, a “Renewal Term,” and together with the Initial Term, the “Term”), unless either Party gives the other Party at least Sixty [60] days’ advance written notice of termination before the end of the Initial Term or then-current Renewal Term.
  2. Accounts and Security, and Scope of Work
    1. Eligibility. You represent that you have the authority and legal capacity to enter into a contract in the jurisdiction where you reside.
    2. Account. To access the LMX Services, you must establish an Account. You can create an Account by completing the registration process as directed by LMX.
    3. Account Security. Maintaining account security is very important. You are entirely responsible for maintaining the confidentiality of your Account password. You agree to notify LMX immediately if you believe that an Account password may have been compromised.
    4. Account Sharing or Transfers. You may not share or transfer any Account, except that you may permit your company officers and employees to use an Account registered to you so long as you accept full responsibility for the conduct of the officers and employees. You may not disclose your password to anyone else.
    5. Additional descriptions of the services and obligations of the Parties may also be referenced in the proposal and/or scope of work document as agreed between the Parties.
  3. Orders
    1. LMX shall submit all orders for Media to Publisher, (each a “Purchase Order” or ”Media Booking Order”) and include in each Purchase Order:
      1. each Media it is ordering, identified by Billboard Identification number (Billboard ID), 
      2. the amount and duration of each Media it is ordering, 
      3. the unit price of each Media it is ordering,
      4. the charge date (“Delivery Date”), allowing a reasonable time for Publisher to receive, review, process the Purchase Order.
  4. Delivery of Services
    1. Delivery. Publisher shall, at no expense to LMX, execute each Purchase Order on the Delivery Date specified in the applicable Purchase Order.
    2. Delivery Report. Publisher shall, at no expense to LMX provide to LMX with the installation photo(s) and video(s) and play logs either in report form or through an automated Application Protocol Interface (“API”) connection (“Delivery Report”) in relation to a Purchase Order and its related Advertising Copy. Delivery Report provided by Publisher is to be used for the proof of compliance of the Publisher’s display obligations in accordance with any Purchase Order. LMX may share the information with Clients, Agencies, Media Auditors and Demand-Side Partners.
  5. Considerations and Settlements
    1. Publisher agrees to pay the fees, charges and expenses described in Publisher Order Form, together with any other liabilities or expenses described in this Agreement.
    2. All Settlements between the Parties shall be in the lawful currency of the Territory this Agreement is effected in or any currency as agreed upon between the Parties as described in the signing page of this Agreement..
    3. LMX shall pay Publisher for Orders submitted under this Agreement by credit to the account(s) designated by Publisher (the “Publisher’s Account(s)”) or other negotiable instrument made payable to Publisher or by any other means acceptable to LMX. Unless otherwise agreed by LMX, Publisher will be paid within the timeframe set out in Publisher Order Form for the gross amount of the Orders submitted less the amount of any discount, fees and other charges (including relevant platform fees, ad serving costs) set forth in this Agreement and credit vouchers deposited (together with any taxes payable in respect thereof). If the amount payable to Publisher hereunder is insufficient to pay the outstanding charges described in the preceding sentence on any day and/or any other amount due or payable by Publisher to LMX under this Agreement, LMX shall be entitled to:
      1. set off and deduct the outstanding amount in whole or in part from any payment due from it to Publisher; and/or
      2. debit the outstanding amount in whole or in part from Publisher’s Account(s) (or any other account of Publisher held with LMX); and/or
      3. deduct the outstanding amount in whole or in part from subsequent credits to Publisher’s Account(s); and/or
      4. claim from Publisher the outstanding amount in whole or in part.
    4. Publisher represents and warrants that no one other than Publisher has any claim in respect of any Transaction submitted hereunder except as authorized in writing by LMX.
    5. Publisher further represents and warrants that payment by LMX shall be without prejudice to any claims or rights which LMX may have against Publisher and shall not constitute any admission by LMX as to the performance by Publisher of its obligations under this Agreement and the amount payable to Publisher.
    6. If LMX suspects, on reasonable grounds, that Publisher has committed or is about to commit a breach of this Agreement, any illegal activity (including, without limitation, money laundering) or dishonesty or fraud against LMX or any of its customers, LMX shall be entitled to suspend all payments under this Agreement to Publisher pending enquiries by LMX.
  6. Rights to Terminate Agreement
    1. Either party may terminate this Agreement by providing:
      1. Sixty [60] days’ notice to the other party after serving the Term
    2. Either party may terminate this Agreement immediately by giving written notice of termination to the other party if:
      1. the other party commits any material or non-material breach of this Agreement and the breach is not remediable;
      2. the other party commits any material or non-material breach of this Agreement, and the breach is remediable but the other party fails to remedy the breach within the period of thirty [30] days following the giving of a written notice to the other party requiring the breach to be remedied; or
      3. the other party persistently breaches this Agreement (irrespective of whether such breaches collectively constitute a material breach).
    3. Either party may terminate this Agreement immediately by giving written notice of termination to the other party if:
      1. the other party:
        1. is dissolved;
        2. ceases to conduct all (or substantially all) of its business;
        3. is or becomes unable to pay its debts as they fall due;
        4. is or becomes insolvent or is declared insolvent; or
        5. convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
      2. an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
      3. an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under this Agreement).
  7. Effects of termination
    1. Upon the termination of this Agreement, all of the provisions of this Agreement shall cease to have effect, save that the following provisions of this Agreement shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely):  Those provisions and clauses that by their nature are intended to survive termination or expiration of this Agreement shall so survive
    2. Unless any pending Orders are also expressly terminated as permitted by this Agreement and/or the relevant Orders, upon expiration or termination of this Agreement for any reason, all Orders then in effect hereunder and all license rights granted pursuant to this Agreement on any Order will continue in accordance with their terms, in which case this Agreement will continue in effect with respect to such pending Order until the completion of such Order. Without prejudice to the rights and remedies which a Party may have in law or equity against the defaulting party for any antecedent breach of this Agreement, upon the expiry or termination of this Agreement: – 
      1. Parties shall continue to serve any Orders raised under this Agreement;
      2. Parties shall continue to pay to the other, any outstanding balance based on LMX’s Payment Collection Report as at the date of termination of this Agreement; and
      3. the appointment of and the use of the rights granted to LMX by Publisher shall cease to exist subject to at least six [6] months sell-off period for Parties to fulfill and complete all its Orders undertaken by LMX and accepted by Publisher, prior to the date of the termination of this Agreement.
    3. Except to the extent that this Agreement expressly provides otherwise, the termination of this Agreement shall not affect the accrued rights and pre-termination obligations of either party.
  8. Confidentiality
    1. Confidential Information shall be treated as confidential during the term of this Agreement and for a period of three (3) years thereafter. During such period, the Parties will not: 
      1. disclose the Confidential Information of the Disclosing Party to any third party, using at least the same degree of care as it uses to protect its own confidential information, but not less than reasonable care or
      2. use such information for any purpose other than to perform its obligations under this Agreement (including the Research Plans).
  9. Intellectual Property
    1. Intellectual property rights (“IPRs”), titles or ownership of any software products, proprietary information or technology will not be transferred from one company to another on account of the use of the same as part of any work under this Agreement and shall always remain with the original owner of the same.
    2. The Parties will individually maintain separate ownership rights in inventions/improvements in their respective software during the execution of work; provided they do not incorporate the other party’s or Client’s intellectual property/ Proprietary information into it.
  10. Indemnification
    1. Publisher shall defend, indemnify and hold harmless LMX and its respective directors, members, trustees, officers, employees, and agents (the “LMX Indemnified Parties”), from and against any and all third party claims, liabilities, losses and expenses (including reasonable attorneys’ fees), directly or indirectly, wholly or partially arising from or in connection with any negligence or intentional tortious act or omission of Publisher, its employees or agents, in performing its duties and performing its obligations under this Agreement. 
    2. LMX shall defend, indemnify and hold harmless Publisher and its members, directors, officers, employees, representatives and agents (the “Publisher Indemnified Parties”) from and against any and all third party claims, liabilities, losses and expenses (including reasonable attorneys’ fees), directly or indirectly, wholly or partially arising from or in connection with any negligence or intentional tortious act, non-compliance,  omission or material breach of this Agreement by LMX, its employees or agents, in performing the Services or its obligations under this Agreement or in relation to its Application/ Platform and/ or contents of the advertisements displayed thereat. 
  11. General Provisions
    1. Notice. All notices under this Agreement must be in writing (including, without limitation, email) and sent to the attention of the other Party’s contact for notices.  Either Party may change its contact for notices, billing contact and/or additional contact by providing notice to the other Party.  Notice will be deemed given when delivered.
    2. Placement Requirements. Publisher grants the rights to LMX to use Publisher’s name and logo when referring to LMX’s customers in LMX marketing materials. 
    3. Publisher agrees that it will not, either by itself or by authorizing or encouraging others to do so, directly or indirectly: 
    4. Warrants. Publisher agrees not to use, post or promote LMX Services in association with any material or content which is, or which may be reasonably considered to be illegal, unlawful or infringing under any applicable laws, in breach of confidence or any other right of any third party, or lacking in necessary authorizations, approvals, consents or licenses. Publisher further warrants to not engage in any action or practice that disparages or devalues LMX, LMX Services, or the reliability, reputation or goodwill of any of them.
    5. Governing Law. This Agreement shall be governed by and construed in accordance with the Laws of Territory, and each of the parties irrevocably submits to the exclusive jurisdiction of the courts located in Territory (and hereby irrevocably waives any objection to the laying of venue in such courts). If either party brings a legal action to enforce its rights under this Agreement, the prevailing party shall be entitled to receive from the other party its reasonable attorneys’ and litigation fees related to such action.
    6. Mediation. Any dispute arising out of or in connection with this Agreement that is unable to be resolved solely between the parties, may be submitted for mediation in accordance with the governing mediation procedure, upon providing thirty (30) days’ written notice to the other party. Either/any party may submit a request to mediate to a mutually agreed mediation center upon which the other party will be bound to participate in the mediation within 45 days thereof. Every party to the mediation must be represented by a senior executive personnel of at least the seniority of a Head of Department or its equivalent, with authority to negotiate and settle the dispute. Unless otherwise agreed by the parties, the Mediator(s) will be appointed by the mediation center. The mediation will take place in the English language and the parties agree to be bound by any settlement agreement reached.
    7. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, THE AGGREGATE CUMULATIVE MONETARY LIABILITY OF EITHER PARTY (INCLUDING THE AFFILIATES OF EACH PARTY) FOR ALL CLAIMS ARISING UNDER OR RELATING TO THIS AGREEMENT, NOTWITHSTANDING THE FORM IN WHICH ANY ACTION IS BROUGHT, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL BE LIMITED IN THE AGGREGATE TO THE TOTAL FEES PAID AND/OR PAYABLE UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE ON WHICH THE FIRST CLAIM AROSE (IT BEING THE UNDERSTANDING OF THE PARTIES THAT IDENTIFYING THE “FIRST” CLAIM WILL ESTABLISH THE BEGINNING POINT FOR ANY TIME PERIOD DESCRIBED IN THIS SECTION 12.7), EXCEPT THAT IF SUCH EVENT ARISES AT ANY TIME FOLLOWING EXPIRATION OR TERMINATION OF THIS AGREEMENT, THEN SUCH AMOUNT SHALL BE EQUAL TO THE FEES PAID BY PUBLISHER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING SUCH EXPIRATION OR TERMINATION DATE (THE DOLLAR AMOUNT DERIVED BY APPLYING THE TERMS OF THIS SECTION SHALL CONSTITUTE THE “PUBLISHER CAP” AS IT RELATES TO THE CAP ON PUBLISHER’S POTENTIAL LIABILITY TO LMX AND THE “LMX CAP” AS IT RELATES TO THE CAP ON LMX’ POTENTIAL LIABILITY TO PUBLISHER). NOTWITHSTANDING ANYTHING THAT MAY BE CONTAINED HEREIN TO THE CONTRARY, NEITHER FEE REDUCTIONS NOR CORRECTIVE ASSESSMENTS PAID OR PAYABLE TO THE OTHER SHALL COUNT TOWARD SATISFACTION OF THE OTHER’S CAP; HOWEVER, TO THE EXTENT THE RECEIVING PARTY RECEIVES MONETARY DAMAGES FOR THE REDUCED VALUE OF SERVICES RECEIVED BY THE DELIVERING PARTY AS A RESULT OF THE DELIVERING PARTY’S FAILURE TO ACHIEVE ONE (1) OR MORE SERVICE LEVEL REQUIREMENTS OR TO TIMELY ACHIEVE ONE (1) OR MORE CRITICAL MILESTONES, THE AMOUNT OF THE FEE REDUCTIONS AND/OR CORRECTIVE ASSESSMENTS ACTUALLY PAID OR CREDITED TO THE RECEIVING PARTY UNDER THE AGREEMENT SHALL BE DEDUCTED FROM SUCH DAMAGES AWARD SOLELY TO THE EXTENT NECESSARY TO AVOID COMPENSATING THE OTHER TWICE FOR THE SAME SERVICE LEVEL REQUIREMENT OR CRITICAL MILESTONE FAILURE.
    8. Independent Contractors. The Parties are independent contractors, and this Agreement does not create an agency, partnership or joint venture.
    9. Assignment. The company may not assign or transfer any part of this Agreement without the written consent of LMX.  
    10. Integration; Waiver. This Agreement is the Parties’ entire Agreement relating to its subject and supersedes any prior or contemporaneous Agreements on that subject.  All amendments hereto must be executed by both Parties and expressly state that they are amending this Agreement.  Failure to enforce any provision of this Agreement will not constitute a waiver.  If any provision of the Agreement is found unenforceable, it and any related provisions will be interpreted to best accomplish the unenforceable provision’s essential purpose. Nothing in this Agreement will limit a Party’s ability to seek equitable relief.
    11. Force Majeure. Neither Party will be liable for any acts or omissions resulting from circumstances or causes beyond its reasonable control.  Without limiting the generality of the foregoing, and notwithstanding anything to the contrary in this Agreement, LMX does not guarantee any LMX Services will be operable at all times or during any downtime caused by outages to any public Internet backbones, networks or servers, any failures of equipment, systems or local access services, or for previously scheduled maintenance.
    12. Restriction on Resale. The company may not resell any LMX Services, it being understood and agreed that Publisher’s use of the LMX Services hereunder on behalf of advertisers and agencies that Publisher is authorized to act on behalf of in order to deliver advertising campaigns via the LMX Services will not be deemed a breach of this Section.
    13. Counterparts. The Parties may execute this Agreement in counterparts, including facsimile, PDF and other electronic copies, which taken together will constitute one instrument.