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TOS - Buyer's Agreement

This Buyer Agreement (“Agreement”) is entered into by and between the buyer signing this Agreement below (“Buyer”) and GumGum, Inc. (“GumGum”) effective as of the date signed by GumGum below. This Agreement governs Buyer’s participation in GumGum’s BEDROCK program (“Program”). Subject to the terms and conditions below, GumGum and Buyer hereby agree as follows:

1. Policies. Participation in the Program is subject to all applicable GumGum policies including, without limitation, the GumGum BEDROCK Policy (collectively, “Policies”), which are incorporated herein by reference. GumGum may modify any or all of the Policies at any time without liability, and Buyer’s use of the Program after notice of a modification constitutes Buyer’s acceptance of the modified Policy.

2. The Program. Participation in the Program will enable Buyer the opportunity to submit bids (each, a “Bid”) through GumGum’s proprietary online auction system (the “Auction System”) on traffic generated by viewers (“Viewers”) that have clicked on advertisements (“ads”) created, placed and displayed by sellers participating in the Program (“Sellers”) on Sellers’ websites and/or other media properties displayed on Internet-enabled devices, now know or that may be adopted in the future (including, without limitation, handheld devices (such as mobile phones and video game devices), personal entertainment systems (such as computers, video game consoles and televisions (and related devices)), and electronic displays in public settings). Buyer shall protect the confidentiality of all passwords and other identification credentials provided by GumGum to access the Auction System. Buyer is solely responsible for its own, and any person’s, use of Buyer’s Program accounts accessed with Buyer’s identification credentials. Buyer is solely responsible for all (a) Bids submitted through the Auction System, (b) keywords and criteria selected, and other factors used, by Buyer for targeting Viewers (collectively “Criteria”) and (c) content, information, links, websites, products, services and landing pages to which Viewers are directed in connection with a Bid (collectively “Services”). GumGum may modify the Program at any time without notice or any liability.

3. Payment. After the last day of each month in which Buyer submits a Bid through the Auction System resulting in Delivered Traffic, GumGum will issue an invoice to Buyer stating the amount of each transaction price resulting from a Bid submitted through the Auction System (collectively, “Charges”). Buyer shall pay to GumGum in U.S. Dollars the full amount of all undisputed Charges within thirty (30) days of the date of GumGum’s corresponding invoice. Late payments shall bear interest at the rate of 1% per month (or the highest rate permitted by law, if less). Charges are exclusive of taxes. Buyer is responsible for paying (y) all taxes and government charges and (z) reasonable expenses and attorneys’ fees that GumGum incurs in collecting unpaid Charges. To the fullest extent permitted by law, Buyer waives all claims relating to Charges (including, without limitation, any claims for Charges based on suspected invalid bids), unless Buyer notifies GumGum of the disputed Charges within thirty (30) days after the date of the invoice stating such Charges. To the fullest extent permitted by law, refunds (if any) are at the discretion of GumGum and will be provided only in the form of a credit on future Bids. Nothing in this Agreement shall obligate GumGum to extend credit to any party. Buyer acknowledges and agrees that any billing and payment information that Buyer provides to GumGum may be shared by GumGum with third parties that work on GumGum’s behalf, such as payment processors and/or credit agencies, in connection with GumGum’s operation of the Program. GumGum may also provide information in response to valid legal process, such as subpoenas, search warrants and court orders, or to establish or exercise its rights or defend against claims. GumGum shall not be liable for any use or disclosure of such information by such third parties.

4. Cancellation and Termination. Buyer may cancel its participation in the Program online through Buyer’s account if online cancellation functionality is available or, if not available, with prior notice via email to GumGum as set forth in Section 9. Buyer shall pay for and provide Services to Viewers that are directed to Buyer in connection with a Bid submitted by Buyer (“Delivered Traffic”) prior to cancellation of Buyer’s participation in the Program. GumGum may cancel the Program or terminate this Agreement at any time by providing Buyer five (5) business days’ prior written notice. Sections 4-9 shall survive any termination of this Agreement.

5. Prohibited Uses; Representations and Warranties. Buyer shall not, nor authorize any party to: (a) generate, fraudulent or otherwise invalid bids through the Auction System or otherwise manipulate or attempt to manipulate the operation of the Auction System by any means; (b) use any automated means or form of scraping or data extraction to access, query or otherwise collect from any Program website any property or information relating to the Program, the Auction System, any bids submitted through the Auction System or other buyers, Sellers or other participants in the Program, or (c) engage in any illegal or fraudulent act in connection with participating in the Program or providing Services. Buyer represents and warrants that it holds, and hereby grants GumGum in connection with GumGum’s operation of the Program, all rights (including, without limitation, copyright, trademark, patent, publicity and other rights) to use the Criteria. Buyer represents and warrants that (y) all information provided by Buyer to GumGum is complete, correct and current; and (z) the Criteria, any use of the Criteria by Buyer and/or GumGum hereunder and the Services will not violate or facilitate the violation of any applicable laws, regulations, code of conduct, or third party rights (including, without limitation, infringement of intellectual property rights).

6. Warranty Disclaimer. TO THE FULLEST EXTENT PERMITTED BY LAW, THE PROGRAM AND AUCTION SYSTEM ARE MADE AVAILABLE “AS IS” AND GUMGUM DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES AND CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. GUMGUM MAKES NO REPRESENTATIONS, WARRANTIES OR CONDITIONS WITH RESPECT TO THE PROGRAM, THE AUCTION SYSTEM OR ANY SERVICES PROVIDED BY GUMGUM HEREUNDER INCLUDING ANY REPRESENTATION, WARRANTY OR CONDITION THAT THE USE OF THE AUCTION SYSTEM, THE PROGRAM OR ANY SERVICES PROVIDED BY GUMGUM WILL (a) BE TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (b) MEET BUYER’S REQUIREMENTS OR EXPECTATIONS, (c) BE FREE FROM ERRORS OR THAT DEFECTS WILL BE CORRECTED, OR (d) BE FREE OF VIRUSES OR OTHER HARMFUL PROGRAMS OR ROUTINES. FURTHER, GUMGUM DOES NOT WARRANT, GUARANTEE OR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE PROGRAM OR THAT THE OPERATION OF THE AUCTION SYSTEM WILL BE UNINTERRUPTED. GUMGUM DOES NOT GUARANTEE THAT ANY BID SUBMITTED BY BUYER WILL RESULT IN ANY DELIVERED TRAFFIC OR MAKE ANY GUARANTEE AS TO THE VOLUME OF DELIVERED TRAFFIC OR THE NUMBER OF VIEWERS THAT BUYER WILL ACQUIRE, OR THAT BUYER WILL ACQUIRE ANY VIEWERS, AS A RESULT OF ITS PARTICIPATION IN THE PROGRAM.

7. Limitation of Liability. EXCEPT FOR INDEMNIFICATION AMOUNTS PAYABLE HEREUNDER, TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER ANY CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY FOR (a) ANY CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, REVENUE, INTEREST, BUSINESS OPPORTUNITY, GOODWILL OR USE OR LOSS OR CORRUPTION OF DATA) EVEN IF SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY; OR (b) ANY AMOUNT IN EXCESS OF THE AGGREGATE AMOUNT PAID OR PAYABLE TO GUMGUM BY BUYER DURING THE SIX (6)-MONTH PERIOD PRIOR TO THE DATE THAT THE CLAIM RESULTING IN LIABLITY AROSE. Except for payment obligations, neither party is liable for failure or delay resulting from a condition beyond the reasonable control of the party including, without limitation, wars, hostilities, revolutions, riots, terrorist acts, civil commotion, national emergency, strikes, lockouts or other labor disputes or shortages or inability to obtain material or equipment, unavailability of supplies, power, Internet or telecommunications, outages, compliance with laws or regulation (including, without limitation, those related to infringement), epidemics, fire, flood, earthquake, force of nature, explosion, embargo, or any Act of God, or any law, proclamation, regulation, ordinance or other act or order of any court, government or governmental agency.

8. Indemnification. Buyer shall defend, indemnify and hold GumGum, Sellers, and their respective employees, agents, affiliates, and licensors harmless from any and all claims, suits, proceedings, damages, losses, liabilities, judgments, costs and expenses (including, without limitation, attorneys’ fees and costs) arising out of or relating to any of the Services, GumGum’s or Buyer’s use of the Criteria, Buyer’s participation in the Program of Buyer’s breach of this Agreement.

9. Miscellaneous. This Agreement shall be construed as if both parties jointly wrote it and governed by California law except for its conflicts of laws principles. All claims arising out of or relating to this Agreement or the Program shall be heard exclusively in the Federal or state courts located in Los Angeles County, California, and GumGum and Buyer consent to the personal jurisdiction and venue of those courts. No statements or promises have been relied upon in entering into this Agreement, except as expressly set forth herein, and any conflicting or additional terms contained in any other documents (e.g. reference to a purchase order number) or oral discussions are hereby rejected and of no effect. Buyer shall not disclose any of the terms or conditions of this Agreement to any third party, except to its professional advisors who are under a duty of confidentiality, or as necessary to comply with a government law, rule or regulation. Any modifications to this Agreement must be made in a writing executed by both parties. All notices to GumGum must be sent via email to contact@bedrock.com or to GumGum, Inc., 225 Santa Monica Boulevard, 11th Floor, Santa Monica, CA 90401, via confirmed facsimile (310.861.8211), with a copy sent via first class mail, or by overnight courier, and are deemed given upon receipt or, if earlier, three (3) days after deposit in the U.S. mail. Notice to Buyer may be effected by sending an email message to the email address specified in Buyer’s account, or by posting a message to Buyer’s account interface, and is deemed received when sent (for email) or no more than fifteen (15) days after having been posted (for messages in Buyer’s Account interface). A waiver of any default is not a waiver of any subsequent default. Unenforceable provisions will be modified to reflect the parties’ intention and only to the extent necessary to make them enforceable, and remaining provisions of this Agreement will remain in full force and effect and enforceable. Buyer may not assign any of its rights or delegate any of its duties hereunder and any such purported assignment or delegation shall be null and void. GumGum and Buyer are not partners or agents, but are independent contractors. This Agreement (including the Policies) constitutes the entire and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes and replaces all other agreements, terms and conditions applicable to the same subject matter.