Supply Agreement

 
This Publisher Agreement governs the Publisher’s use of the PixFuture programmatic advertising platform (the AuctionX).
 
By signing a publisher agreement, you are agreeing that you have read these terms of service, understand them, and agree to be bound by all of the terms and conditions stated herein. If you do not agree to the terms and conditions hereof, click on the “cancel” button and do not download, install or use the services.
 
PixFuture reserves the right to modify these Terms of Service at any time upon written notice to the Publisher, and such modification will automatically become effective. If the Publisher does not agree with a modification to these Terms of Service, Publisher must notify Pixfuture within ten (10) business days after receiving notice of such modification.
 
DEFINITIONS

“Ad” means any advertisement provided by the Agency on behalf of an Advertiser.

“Advertiser” means one or more customers of PixFuture which creates the Advertising Material and authorizes PixFuture as its agent to include it on the Publisher’s Site(s).

“Advertising Materials” means the text, graphics, logos, designs, trademarks, and copyrights for any type of advertising including, but not limited to, buttons, banners, text-links, pop-ups, and pop-unders is created by an advertiser.

“Services” means PixFuture technology, and any other services provided to you by PixFuture and/or its suppliers.

“CPC Deliverables” means Deliverables sold on a cost per click basis.

“CPM Deliverables” means Deliverables sold on a cost per thousand impression basis.

“IO” means a mutually agreed insertion order that incorporates these Terms, under which Publisher will deliver Ads on Sites for the benefit of Agency or Advertiser.

“PixFuture Insertion Code” means the code in which Publishers are permitted to use Advertising Material delivered to the Publisher’s Site(s).

“PixFuture Network” means the advertising network owned and operated by PixFuture.

“Impressions” means the number of times Advertising Material is served to a person visiting the Publisher’s Site(s).

“Order” means insertion order that is submitted by PixFuture and is accepted by Publisher, or an online order via the Internet, which is a proposal that is submitted by Publisher in response to a request for proposal and is accepted by PixFuture

“Publisher Earnings” and “PixFuture Earnings”. “Publisher Earnings” means the total revenue PixFuture generates by running advertising campaigns for Publisher using the Advertising Materials less “PixFuture Earnings”, and subject to the Total Spend that may be established under an Order. “PixFuture Earnings” are calculated at the campaign level at the sole and absolute discretion of PixFuture. PixFuture evaluates each advertising campaign and makes relative earnings calculations based upon a number of factors including the type of campaign metric (e.g., CPM, CPC, CPA), the performance of the campaign, technology costs, and other factors relating to the campaign, the performance of Publisher’s site(s) and PixFuture’s Network as a whole.

Total Spend” means the maximum amount of money for which PixFuture will be liable under the Order.

Unique Click” means the number of times, as recorded by PixFuture’s server, a person visiting Publisher’s Site(s), as identified by cookie or IP address, clicks on Advertising Material, provided however, that a click on Advertising Material by a particular visitor shall only be counted as a Unique Click once every 24-hour period.

“Policies” means advertising criteria or specifications made conspicuously available, including content limitations, technical specifications, privacy policies, user experience policies, policies regarding consistency with Publisher’s public image, community standards regarding obscenity or indecency

(taking into consideration the portion(s) of the Site on which the Ads are to appear), other editorial or advertising policies, and Advertising Materials due dates.

“Representative” means, as to an entity and/or its Affiliate(s), any director, officer, employee, consultant, contractor, agent, and/or attorney.
 
Section 1. Ad Placement and Positioning

1.1 PixFuture offers monetization solutions through its AuctionX by facilitating the placement of advertisements made available through the use of Ad Codes. The Ad Codes provided to the Publisher by PixFuture will allow the Publisher to serve advertisements on Site(s), so as to enable visitors to view such advertisements. Publisher’s use of the AuctionX is subject to prior approval by PixFuture and is limited to the previously approved Site(s). PixFuture reserves the right to refuse service to new or existing Publisher, at its sole discretion.

1.2 Publisher will be provided with account access information to register for an account on the AuctionX.

1.3 As part of PixFuture’s Ad Quality Policy, Publisher is required to adopt
(a) Ads.txt and to list PixFuture or any of its Sales Partners as Authorized Digital Seller(s) on the domains that are made available on the Publisher in compliance with the IAB Ads.txt project;
(b) PixFuture Partner Badge code

1.4 Orders. Each Order shall specify at the placement level:

(a) the types of inventory to be delivered (e.g., impressions, clicks, or other desired actions);

(b) the prices for such inventory; and if specified by PixFuture

(c) the Total Spend. Using such factors, the Order shall set forth the Approved Monthly Delivery and the Approved Monthly Spend. Publisher’s delivery of the first Advertising Material as specified in an Order shall be deemed Publisher’s acceptance of the Order’s specifications, terms, and conditions, including any payment rates.

1.5 PixFuture will be Publisher’s exclusive provider of programmatic advertising Service(s), except with respect to Ad Inventory that cannot be sold programmatically or to the extent that clients of Seller will not allow for programmatic selling.

 

Section 2. Invoicing and Payment.

2.1 Payment. Within 60 days after the last day of each calendar month for a specific campaign, PixFuture will pay Publisher its Publisher Earnings for Advertising Material actually delivered by Publisher to each of Publisher’s Site(s)/App(s) approved by PixFuture during the applicable calendar month and for which PixFuture has been paid by the Advertiser in accordance with Section 3.2 herein, subject to the applicable Order’s specifications, terms, and conditions. Publisher acknowledges that PixFuture bills its Advertisers, and pays its Publishers, based on actual delivery. Minimum payout for AuctionX Display is $50 PayPal and $500 Bank Wire Transfers, AuctionX Video $500 PayPal, and Bank Wire Transfer. The transaction fee of 1% will be applied to PayPal transactions, $20 to bank transfers for Canada/US accounts, $30 for international bank transfers.

2.2 Liability for Publisher’s Revenue. Publisher understands and agrees that PixFuture acts solely as an agent for the Advertisers; and that PixFuture shall only be liable to Publisher for Publisher Revenue based on payments from Advertisers that it has received without restrictions that constitute immediately-available funds to PixFuture (hereinafter called “Cleared Funds”). Publisher agrees that (a) PixFuture shall have no liability or obligation to Publisher for payments due but unpaid from Advertisers, or that are not Cleared Funds; (b) Publisher will only assert any claims therefore directed against the Advertisers; (c) Publisher shall hold PixFuture harmless and indemnify it from any claims or liability related to such unpaid amounts that do not constitute Cleared Funds. PixFuture agrees to make every reasonable effort to the bill, collect, and clear payment from the Advertisers on a timely basis. PixFuture, reserves the absolute right not to make any payments if the Publisher violates any of the terms and conditions set forth herein. PixFuture shall not pay for clicks generated from PixFuture house banners. Clicks from PixFuture house banners will result in no revenue for Publisher.

2.3 Taxes. PixFuture assumes no responsibility for paying taxes on behalf of Publisher. By participating in the PixFuture Network, Publisher assumes complete and sole responsibility for any taxes owed as a consequence thereof. PixFuture shall provide Publisher with appropriate tax information by request. In no event will payments be made on accounts that have not provided proper tax identification information. Such information will be used for no purpose other than for tax reporting purposes. International Publishers may be asked to complete appropriate forms for tax purposes.

2.4 Withholding Payment. PixFuture reserves the right to withhold payment from Publisher if Publisher has engaged in an activity that is deceptive or fraudulent in nature as determined by PixFuture in its sole discretion. Examples of such deceptive or fraudulent acts may include, without limitation, Invalid Traffic, clicks without referring URLs, extraordinary high numbers of repeat clicks, and clicks from non-approved root URLs. Impressions that are served but are not received due to end-user blocking technology or software shall not count towards any payout calculation.

 

Section 3. Advertising Materials.

3.1 Linking and Trafficking Guidelines. Prior to displaying the first Advertising Materials specified in an Order, PixFuture shall provide Publisher with linking instructions, URL, banner, and alternative text for the Advertising Material. PixFuture may make changes to any such Advertising Material upon 48 hours notice, via e-mail, telephone, or fax. Publisher shall process such changes so as to deliver the Advertising Material correctly, clearly, and at the times and frequencies specified by PixFuture. In the event Publisher fails to run the Advertising Material properly, PixFuture may require appropriate delivery of additional Advertising Material and/or a proportional or total reduction in amounts payable.

3.2 Delivery of Advertising Material. PixFuture shall provide all Advertising Material to Publisher via servers at PixFuture. PixFuture shall issue Orders to Publisher and shall provide Publisher with appropriate linking instructions to the PixFuture servers. Publisher shall obtain the Advertising Materials from the PixFuture services at the time of delivery of the Advertising Materials for a specific advertisement. If Publisher is unable to obtain the Advertising Materials from the PixFuture servers on a consistent basis, Publisher shall cease delivering Advertising Material and shall contact PixFuture promptly, but in no event, more than one business day after the problem first occurred. Publisher shall not resume the display of Advertising Materials until PixFuture directs Publisher to do so. In the event of a persistent outage of the PixFuture servers, PixFuture may, at its option, provide Publisher with the Advertising Materials directly, and may direct Publisher to serve the Advertising Materials from its servers.

3.3. PixFuture Insertion CodePublisher shall place the PixFuture Insertion Code on all appropriate pages within its Publisher Properties. Publisher shall not alter, sell, or disclose the PixFuture Insertion Code in any way without PixFuture’s prior written consent. The PixFuture Insertion Code for Advertising Material may not be used on a web page other than one located at an approved Site and may not be distributed or submitted to any newsgroup, e-mail distribution list, chat room, guest books, or other location which would result in the execution of such code without a bona fide visit to an approved Web Site.

3.4. Modification Of Advertising Material. Advertising Material must not be modified from the original format without consent from PixFuture. Advertising Material cannot be placed in email messages. Publishers can not alter, copy, modify, take, sell, reuse, or divulge any computer code for the Advertising Materials. If Publisher violates this provision, PixFuture, may, at its option, either reduce or eliminate any and all payments due hereunder, and/or terminate this Agreement as provided herein.

3.5. Recording of Service Counts. PixFuture shall have the sole responsibility for calculation of statistics, including Impressions and click-through numbers. Universal Time Coordinated (UTC) shall be the time period for traffic and tracking purposes. Pixfuture shall pay to Publisher an amount equal to the billed and collected revenue by Pixfuture in a given calendar month from advertisements displayed on the Publisher Properties via the AuctionX. Net Earnings shall be paid to Publisher based on the payment terms, currency, and rates set forth in the Agreement. If Publisher does not raise any issues in writing with regards to the Net Earnings within ten (10) days of receipt, Publisher will forfeit its right to do so.

3.6 Publisher understands that PixFuture’s online statistics may not be 100% accurate and that PixFuture may make adjustments to Publisher’s online statistics at the end of each calendar month to account for, among other things, specific contractual provisions (e.g., bonuses) and statistical errors. In the event that coding on Publisher Propertie(s) generates a substantial number of an erroneous impression due to a technical problem such as server malfunction, coding alteration, or a mistake in entering a code, Publisher agrees to respond to the e-mail generated by PixFuture technical support within 48 hours. If Publisher does not respond to this alert, PixFuture reserves the right to (a) withhold payment on all Impressions and clicks delivered after the 48-hour period has expired, or (b) not show any revenue-producing Advertising Material on the relevant Site(s).

3.7 Fraudulent Impressions. Any method to artificially and/or fraudulently inflate the volume of impressions or clicks is strictly forbidden. Counts of impressions or clicks will be decided solely on the basis of reports generated by PixFuture’s Advertising Network. These prohibited methods include but are not limited to: framing an ad-banner’s click-through destination, auto-spawning of browsers, blind text links, running ‘spiders’ against the Publisher’s own website, automatic redirecting of users, pop-up windows or any other technique of generating automatic or fraudulent (as determined by PixFuture, acting reasonably, or based on industry practices) click-throughs and/or impressions. Advertising Material may not be placed on a page that reloads automatically. The Publisher may not require users to click on Advertising Material prior to entering a Web Site or any area therein or provide incentives of any nature to encourage or require users to click on Advertising Material. Publisher’s click-throughs of any link other than PixFuture’s Advertising Material, or use of any other means of artificially enhancing click results shall be a material breach of this Agreement, and upon such occurrence, PixFuture may terminate this Agreement effective upon delivery of notice. Such termination is at the sole discretion of PixFuture and is not in lieu of any other remedy available at law or equity. PixFuture’s ad server will be the official counter for determining the number of Advertising Material delivered under an applicable order and amounts payable under this Agreement.

 

Section 4. Eligible Site(s).

PixFuture reserves the absolute right to refuse in its sole discretion to affiliate with any Publisher. The following are examples of sites that are not eligible for participation:

sites which contain material that infringes the rights of others (including but not limited to copyright and other intellectual property rights) or which promotes copyright piracy (i.e., unauthorized MP3s, ROMs, ‘warez’, emulators, or cracks, etc.)
sites with pornography, adult content, sexual or erotic material or sites that contain links to such content
sites with gratuitous displays of violence, obscene or vulgar language, and abusive content or content which endorses or threatens physical harm
sites promoting any type of hate-mongering (i.e., racial, political, ethnic, religious, gender-based, sexuality-based or personal, etc.)
sites that participate in or transmit inappropriate newsgroup postings or unsolicited e-mail (spam)
sites promoting any type of illegal substance or activity (i.e., how to build a bomb, hacking, ‘phreaking’, etc.)
sites with illegal, false or deceptive investment advice and money-making opportunities
sites that provide incentives of any nature to require or encourage users to click on ad banners (i.e., charity, sweepstakes, etc.).
sites that are under construction or incomplete
sites with extremely limited audiences or viewership
sites with any type of content reasonable public consensus deem to be improper or inappropriate
sites that contain any content violating Federal privacy laws, including the Children’s Online Privacy Protection Act.

At any time PixFuture may investigate any Site for violation of this Agreement. PixFuture regularly performs compliance audits. If PixFuture determines that Publisher Propertie(s) includes any undesirable content, PixFuture may discontinue the Ad campaign upon notice, and Publisher shall immediately cease delivering Advertising Material on such Site(s). In no event, will PixFuture or its Advertisers be obligated to pay for Advertising Material delivered through Sites containing undesirable content after Publisher’s receipt of such notice from PixFuture.
 
Section 5. Representations and Warranties.

Publisher represents and warrants to PixFuture that:

All content, products, and services on the Publisher Propertie(s) are legal to distribute, that it owns or has the legal right to use, and will not infringe, any and all copyrights, trademarks, patents or other proprietary rights; and

Publisher Propertie(s) do not, and will not during the term of this Agreement, contain any material described in Section 4 of this Agreement; and

Publisher Propertie(s) are free of any “worm”, “virus” or other devices that could impair or injure any person or entity; and

It is generally familiar with the nature of the Internet and will comply with all laws and regulations that may apply; and it will conduct its business in compliance with all applicable laws, rules, and regulations; and

It has full legal power and authority under its organizational documents to enter into this Agreement and to perform the obligations contained herein; and the execution of this Agreement and the performance of its obligations by Publisher will not conflict with or a cause a breach or violation of any agreement, law, regulation or other obligation to which Publisher is a party or subject.
 

Section 6. Term and Termination
Term. Subject to the early termination rights of either party herein, the term of this Agreement shall be 1 year from the date first written above, and it shall renew automatically for subsequent one-year periods unless either party notifies the other at least 30 days before the end of the then-Term that it does not wish to renew the Agreement.

Termination by Either Party. Notwithstanding Section 6. An above, either party may terminate this Agreement at any time for one of the following reasons for any reason whatsoever, upon 30 days written notice to the other party. Notice may be provided via e-mail or any other public means and will be effective 30 days after its transmission.

PixFuture may terminate or suspend your access to the Services:
(a) should you fail to comply with a term or condition these Terms of Service and/or any applicable services agreement or other written agreement between you and PixFuture; (b) for any conduct that PixFuture believes is or may be directly or indirectly harmful to other users, to PixFuture or its subsidiaries, affiliates, or business contractors, business partners, suppliers, or to other third parties,

(c) for any conduct that violates any local, state, federal, or foreign laws or regulations.
 
Section 7. License and Intellectual Property.

PixFuture shall use the trade names or trademarks of the other party or Advertisers without prior written approval from the party owning such name or mark.
 
Section 8. Privacy

8.1. Privacy Policy. Each party shall include conspicuously on its Site(s), a privacy policy that describes how such party collects, uses, stores and discloses users’ personal data if any is collected, including e-mail addresses, and instructs users how to opt-out of such practices. Publisher’s privacy policy shall disclose that third-party advertisers may place cookies on the browsers of visitors to Publisher’s Site(s).

8.2. Privacy Representations and Warranties. Each party warrants to the other that, during the term of this Agreement, it shall comply with all applicable laws and regulations (including but not limited to laws governing privacy, and data protection).

8.3 Collection, Storage and Use of Data and Confidentiality Obligation.
The company understands that any Site Data and End-User Data received by Company from PixFuture in connection with the use of the PixFuture Services shall be exclusively limited to the use solely as agreed and permitted herein and exclusively for the purposes of this Agreement. PixFuture ensures compliance with applicable privacy laws, including without limitations the General Data Protection Regulations (“GDPR”) with regards to partners and End Users in the European Economic Area (“EEA”). Thus, as part of the binding term of this Agreement, the Company hereby undertakes that as a controller of the personal data of the End User it shall comply with the Applicable Laws as well as the DPA requirements as set forth in the applicable terms attached as a schedule to the Principal Terms, which constitutes an integral part of the Agreement. You are committed to complying with terms of the Data Processing Agreement.
 
Section 9. Confidentiality.
PixFuture shall disclose to Publisher the names of PixFuture’s Advertisers (“Client List”); and Publisher agrees that the Client List is sensitive and highly confidential information that it shall use solely for its performance under this Agreement and that it and its officers, employees, directors, members, agents, and representatives shall not disclose it to any other party for any purpose without the prior written consent of PixFuture. Publisher shall ensure that each of the persons or parties in the previous sentence have signed confidentiality agreements with Publisher consistent with the aforesaid sentence before it may disclose the Client List to them. Notwithstanding the previous two sentences, however, Publisher may disclose to any third party the existence of its relationship with PixFuture; but it cannot disclose the Client List or the existence or nature of PixFuture’s relationship with any Advertisers included in the Client List. Publisher’s obligations under this paragraph shall continue indefinitely following the date of termination of this Agreement.
 
Section 10. Indemnification.
The Publisher agrees to indemnify and hold PixFuture and its affiliates, employees, agents and representatives harmless from and against any and all claims, demands, liabilities, expenses, losses, damages and attorney fees arising from any and all claims and lawsuits for libel, slander, copyright, and trademark violation as well as all other claims resulting from (i) the participation of the Publisher in the PixFuture Network, (ii) operation of the Publisher’s Site(s) submitted to PixFuture for participation in the PixFuture Network or (iii) otherwise arising from Publisher’s relationship with PixFuture. The Publisher also agrees to indemnify PixFuture for any legal fees incurred by PixFuture, acting reasonably, in investigating or enforcing its rights under this agreement.
 
Section 11. Disclaimers, Exclusions, And Limitations.

Disclaimer of Warranty. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS, PixFuture MAKES, AND HEREBY SPECIFICALLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED, REGARDING THESE TERMS AND CONDITIONS, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.

Limitation of Liability. UNDER NO CIRCUMSTANCES WILL PixFuture BE LIABLE TO PUBLISHER WITH RESPECT TO ANY SUBJECT MATTER OF THESE TERMS AND CONDITIONS UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, WHETHER OR NOT PixFuture HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING FROM ANY PROVISION OF THESE TERMS, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE. IN NO EVENT SHALL PixFuture’S AGGREGATE LIABILITY ARISING OUT OF THESE TERMS AND CONDITIONS EXCEED THE PAYMENTS TO THE PUBLISHER HEREUNDER.
 

Section 12. Non-Circumvention. 

During the Term of this Agreement, and any renewal thereof, and for one (1) year after its termination for any reason, Publisher agrees that it will not do business directly or indirectly with any Advertiser specified in an Order, or directly or indirectly solicit or induce such Advertiser to do business directly with the Publisher. Publisher understands and agrees that this prohibition is a key consideration and inducement for PixFuture to enter into this Agreement with Publisher, and to provide the services hereunder.
 
Section 13. General.

13.1. Inconsistency with Order. In the event of any inconsistency between an Order and this Agreement, the terms of the Order shall prevail.

13.2. Governing Law, Jurisdiction, and Venue. This Agreement and all Orders shall be governed by the laws of the province of Ontario, without regard for the conflict of law principles thereof. The Federal and State Courts located in Toronto, ON shall be the sole venue to hear controversies arising from or related to this Agreement, and each party consents to the personal jurisdiction of those courts.

13.3. Assignment. Any assignment, transfer or delegation by Publisher of its rights or duties hereunder will be governed by this Agreement, subject to the parties’ termination rights hereunder.

13.4. No Prior Agreements. This Agreement, together with all fully-executed Addenda, attachments, and exhibits attached hereto, and all proper Orders, contains every obligation and understanding between the parties regarding the subject matter hereof and merges and supersedes all prior and contemporaneous agreements and understandings, if any, regarding the subject matter hereof.

13.5. Severability, Rights Cumulative. If any provision herein is held to be unenforceable, the remaining provisions shall remain in full force and effect. All rights and remedies hereunder are cumulative.

The Parties represent that they fully acknowledge and agree to the terms of this Agreement and that the following individuals are authorized to sign on their behalf.

(Updated: April 1, 2020)

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