This Adsource Publisher Agreement (“Agreement”) includes any schedule and other attachment(s) hereto and all other agreements, policies, and documents incorporated by reference herein.
The effective date of this agreement shall be the date and time when the Publisher has created an online account using the online form located at https://adsource.com/manage.adsource.com/publisher/signup and has agreed and accepted the terms and conditions of this Agreement by checking the “I agree” area of the form and clicking on “Sign Up!”
Adsource, Inc. (“Adsource”)
And the named applicant with Name, Title, Company Name and Address as submitted on the form located at https://adsource.com/manage.adsource.com/publisher/signup (“Publisher”).
Each also referred to herein as a “Party” and collectively the “Parties.”
1. Adsource provides Internet-related advertising services.
2. Publisher wishes to use Adsource’s services in association with the Web sites and/or applications under the ownership and/or control of Publisher.
All capitalized terms herein shall take on the meaning attributed to them below:
1.1 “Additional Term” means the period commencing from the expiration of the Initial Term and ending at 12 a.m. Central Time of the 1-calendar-year anniversary date thereof.
1.2 “Advertisements” mean the advertisements that are provided by Adsource over an Approved Protocol for display on Publisher Media and may include advertisements from Direct Advertisers and/or advertisements sourced from Upstream Partners.
1.3 “Advertisement Format” means the format in which the Advertisement is displayed on Publisher Media, including text and graphic banners. Advertisement Formats may vary for each Implementation.
1.4 “Affiliate” means any legal entity that owns, is owned by, or is under common ownership with a Party with ownership of the shares, interests or assets of such legal entity or Party, as applicable.
1.5 “Approved Protocol” means a protocol that is approved by Adsource and allows the Publisher Media to communicate with Adsource Technology to source Advertisements. The list and definition of Approved Protocols include, but are not restricted to, XML (Extensible Markup Language) and Java Script.
1.6 “Business Day” means any day between Monday to Friday (inclusive) that is not a statutory holiday in Washington State.
1.7 “Calendar Day” means any day between Sunday to Saturday (inclusive).
1.8 “Click” means the act of an End User clicking on an Advertisement and accessing the Web page hyperlinked to that Advertisement.
1.9 “Confidential Information” includes any and all information or data of a Party that is disclosed to the other Party, either directly or indirectly, whether in writing, verbally, or by visual means, and which is designated (either in writing or verbally) as confidential, proprietary, or the like. However, such designation shall not be necessary to deem information as Confidential Information if the nature of the information makes it generally considered confidential commercially, which information includes information that relates to (a) trade secrets or know-how, (b) finance or accounting, (c) technology, research, or development, (d) internal processes or procedures, (e) algorithms, digital data, or designs, (f) business, operations, or planning thereof, (g) sales or marketing strategies, (h) the terms of any agreement between the Parties, and the discussions, negotiations, or proposals related thereto, including this Agreement.
1.10 “Customer Key” means a unique identifier allocated to Publisher by Adsource.
1.11 “Derivative Works” mean (i) any software, work product, improvement, modification, alteration, enhancement, new version, update, localization, upgrade, port, translation, design or documentation, in any medium, format or form whatsoever, that is derived in any manner, directly or indirectly, from the Services (including the Adsource Technology) or any part or aspect thereof, or that uses or incorporates the Services or any part or aspect thereof; (ii) all derivative works of the Services (including the Adsource Technology) as defined in the Copyright Law of the United States, Title 17 U.S.C. §101 et seq.; (iii) all materials and documentation (including Adsource Materials) related to the foregoing; and (iv) all Intellectual Property related to the foregoing.
1.12 “Direct Advertisers” mean advertisers who have contracted with Adsource to have their advertisements displayed on Publisher Media.
1.13 “Effective Date” means the date of this Agreement as stated above.
1.14 “End User” means any bona fide Internet user using the Internet (which excludes use of spiders, Web crawlers, any type of robot or other mechanical, artificial or automated means) who visits or browses the Publisher Media or any component thereof in good faith and in a legitimate manner that is (a) not fraudulent, (b) not motivated, incentivized, or solicited by expectations of monetary or other gain, and (c) done in a manner that is legal or in accordance with good faith business practices and public policy, as determined by Adsource at its sole discretion.
1.15 “Adsource Materials” include all text, images, illustrations, URLs, audio and multimedia files and/or text, technology, software, Web site data, source codes, digital files, customer lists, technical information, data, plans, user identifications, account numbers, encryption keys, digital certificates, account access and log-in information, passwords, and all other similar materials or information owned by or otherwise relating to Adsource or the Services (including the Adsource Technology). For the purposes of this Agreement and the Services offered pursuant to this Agreement, the term “Adsource Materials” shall also include Advertisements provided to Publisher from any Upstream Partner and/or Direct Advertiser.
1.16 “Adsource Technology” means Adsource’s proprietary technology (including Adsource’s software applications, tools and any related technology that provide Advertisements to a Publisher to monetize Internet traffic and that allow the Parties to earn money consideration for Sponsored Actions to the Advertisements displayed on Publisher Media), any hardware designs, algorithms, software (in source and object code), user interface designs, architecture, document type additions, class libraries, objects and documentation (both printed and electronic), network designs, know-how, trade secrets and any related Intellectual Property throughout the world and also including any Derivative Works, improvements, enhancements or extensions of Adsource Technology conceived, reduced to practice, or developed during the Term.
1.17 “Implementation” means the specific method of implementing the Services as further detailed in the applicable Implementation Schedule(s).
1.18 “Implementation Schedule” means the document entitled same (attached hereto as a schedule and incorporated as part of this Agreement) that details the Implementation and the restrictions specific thereto.
1.19 “Impression” means a single instance of displaying an Advertisement to an End User on Publisher Media.
1.20 “Initial Term” means the period commencing from the Effective Date and ending at 12 a.m. Central Time of the 1-calendar-year anniversary date thereof.
1.21 “Intellectual Property” means all rights, title, interest and benefit of a Party in and to intellectual property of every nature, whether registered or unregistered, including all copyrights, patents, trademarks, certification marks and industrial designs, applications for any of the foregoing, trade names, brand names, business names, trade secrets, proprietary manufacturing information and know-how, instruction manuals, inventions, inventor’s notes, research data, blue prints, drawings and designs, formulae, calculations, processes, prototypes, source codes, digital files, technology and marketing rights, together with all rights under license agreements, sublicense agreements, strategic alliances, development agreements, technology transfer agreements and other agreements or instruments relating to any of the foregoing, that are owned by a Party hereto (and, in the case of Adsource, includes the Services, Derivative Works, Adsource Technology, and Adsource Materials).
1.22 “Invalid Actions” mean any Sponsored Action or activity that, at Adsource’s sole determination, would not qualify for Revenue Share or would otherwise be subject to recouping of Revenue Share payments, including errors, fraud, Invalid Impressions, Prohibited Traffic, and Invalid Clicks.
1.23 “Invalid Click” means a click on an Advertisement that does not meet the definition of a Click hereunder, that does not comply with this Agreement, or that otherwise does not qualify as a Click as determined by Adsource at its sole reasonable discretion.
1.24 “Invalid Impression” means the display of an Advertisement that does not meet the definition of an Impression hereunder, that does not comply with this Agreement, or that otherwise does not qualify as an Impression as determined by Adsource at its sole reasonable discretion.
1.25 “Net Revenue” means the money amount Adsource receives from an Upstream Partner or Direct Advertiser, less Operational Costs, based on the number of Clicks on Advertisements associated with that Upstream Partner or Direct Advertiser, after applicable adjustments have been made to account for variables including taxes and Invalid Clicks.
1.26 “Operational Costs” includes (a) all costs associated with the set up and maintenance of the Services, and (b) all fees or commissions payable to third parties for sourcing or referring to Adsource Advertisements, Publisher Media, or Publisher.
1.27 “Organic Results” mean those results for a Search Keyword that are returned by Adsource for display on Publisher Media but are not entitled to a Revenue Share.
1.28 “Publisher Account” means a unique account specific to Publisher that is set up with Adsource to organize and manage the Services and the activities related thereto as they pertain to Publisher.
1.29 “Publisher Media” means the Web sites that are owned and/or controlled by Publisher and that display the Advertisements and/or Organic Results.
1.30 “Reporting Interface” means Adsource’s Web-based interface that allows viewing of information related to the Services and Publisher’s use thereof.
1.31 “Restricted IP Address” means an IP address for which Adsource does not provide the Services or Revenue Share. Adsource may amend this list at any time at Adsource’s sole discretion.
1.32 “Restricted Traffic” means any traffic from Restricted URL or Restricted IP Address.
1.33 “Restricted URL” means any URL that Adsource identifies as a URL for which Adsource does not provide the Services or Revenue Share. Adsource may amend this list at any time at its sole discretion. A restricted URL may also be one where any of the following applies:
a. Adsource does not have the right to use or to associate data with that URL.
b. Adsource does not have the right to reproduce or distribute any of the content available at that URL.
c. The URL infringes or potentially infringes the intellectual property rights of any third party.
d. The URL violates any applicable law, regulation, or rule.
e. The URL is subject to a court order for an injunction or restraining order.
f. The URL is libelous, defamatory, or obscene or contains material that is any of the foregoing.
g. The URL contains software, viruses, worms, or other code that is or may potentially be damaging or harmful to a Party’s computer system or stored information.
h. The URL is otherwise contrary to the intended use of the Services.
i. The URL is requested to be blocked by any Upstream Partner or Direct Advertiser.
1.34 “Revenue Share” means the percentage of the Net Revenue, as determined by Adsource at its sole discretion, which Adsource shall provide to Publisher in exchange for posting Advertisements on Publisher Media.
1.35 “Search Keyword” means the keyword that is being searched for on Publisher Media by the End User.
1.36 “Services” mean the services that Adsource provides to Publisher hereunder to implement and facilitate Publisher’s use of Adsource Technology, including provision or use of the Adsource Materials, Publisher Account, Reporting Interface, Revenue Share, and technical/customer support.
1.37 “Sponsored Action” means any action carried out by an End User on or via Publisher Media in connection with Advertisements that is not an Invalid Action and that qualifies Publisher for Revenue Shares thereto. Current Sponsored Actions are further detailed in the Technical Guidelines.
1.38 “Technical Guidelines” refers to Adsource’s standard written guidelines for an Implementation, as amended at any time by Adsource at its sole discretion, which includes details such as Approved Protocols, Advertisement Formats, and Sponsored Actions.
1.39 “Term” means the Initial Term or any Additional Term of this Agreement as is applicable.
1.40 “Upstream Partner” means a third party that sources and supplies Advertisements to Adsource for display on Publisher Media.
2. TERM & RENEWAL
2.1 Term. This Agreement shall remain in effect for the duration of the Initial Term and any Additional Term as defined hereunder.
2.2 Renewal. Upon expiration of the Initial Term, this Agreement shall automatically renew for successive Additional Terms, unless either Party terminates this Agreement in accordance herewith.
3. THE SERVICES
3.1 Provision of Services. Adsource provides the Services subject to the terms of this Agreement and Publisher’s compliance thereof.
3.2 Amendment of Services. Adsource may, at its sole discretion, add to, modify, cancel, or remove any of the Services, whether in whole or in part. Continued use of the Services after any modification thereto shall be deemed to be Publisher’s agreement thereof. Publisher may request amendments to the Services by delivering to Adsource, in accordance with the notice provisions herein, written notice detailing the requested amendments. While Adsource shall endeavor to accommodate Publisher’s requests, Publisher understands, acknowledges, and agrees that requests for amendments to the Services may be rejected in whole or in part at Adsource’s sole discretion.
3.3 Implementation of Services. Publisher shall implement and make effective the Services into Publisher Media within 30 Business Days from the Effective Date in accordance with the following:
Publisher shall prevent spiders from crawling the pages where Advertisements are shown.
a. Sponsored Actions on Publisher Media shall be at the sole discretion of the End User. Publisher shall not (or instruct or knowingly allow any third party to) provide the End User with any incentive to Click or generate false Impressions on Advertisements. The use of incentive programs, traffic exchange programs, and/or safe-lists is prohibited.
b. Publisher shall use the Services as-is and shall not modify (re-order, duplicate, modify, delete/omit) the Results.
c. Publisher shall not display Results on Publisher Media that contains any illegal content including child pornography.
d. Publisher shall seek approval for any Implementation on Publisher Media that contains Adult content.
e. Publisher shall provide Adsource with written notice at least 5 Calendar Days before increasing the volume of Sponsored Actions over 50% of the previous calendar month’s daily average Sponsored Actions.
3.4 Non-Exclusive Service. Publisher understands, acknowledges, and agrees that Adsource may provide the Services to other parties and that such provision of Services to third parties may compete with Publisher’s own use of the Services.
3.5 Objectionable Advertisements. Publisher understands, acknowledges, and agrees that the delivery of Advertisements is an automated process and, consequently, certain materials may be displayed on Publisher Media that may be objectionable to Publisher (for example, trademarked, illegal, or adult material). Upon written request from Publisher, Adsource shall take reasonable measures to remove content that is objectionable to Publisher, but Adsource cannot guarantee that all such requests can or will be met.
3.6 Reporting Interface. Adsource shall provide Publisher with access to the Reporting Interface to view records of Publisher’s activities hereunder. Publisher understands and acknowledges that the Reporting Interface is for Publisher’s reference purposes only and that the data contained therein may not be current or accurate at the time of viewing by Publisher. The data contained in the Reporting Interface is subject to adjustments at any time by Adsource at its sole discretion.
3.7 Resale. Publisher shall not sub-license or resell the Services, or any part thereof, to any third party. Notwithstanding anything in this Agreement to the contrary, if Publisher violates this Section 3.8, Adsource reserves the right to withhold or recoup, as applicable, that portion of revenue generated, and Revenue Share earned, as a result thereof.
3.8 Contact Information. Publisher shall provide Adsource with Publisher’s current, complete, and accurate contact information, as requested by Adsource, and Publisher shall ensure that such information is updated and kept current, complete, and accurate at all times.
3.9 Right of Refusal. Adsource reserves the exclusive right to approve or reject Services to any Web site that forms part of Publisher Media.
3.10 Suspension & Cancellation. Adsource reserves the exclusive right to suspend and/or cancel any Publisher Account.
3.11 Discontinued Use. Publisher may discontinue the Services for Publisher Media by delivering to Adsource written notice of such discontinued use. Discontinued use of the Services for any or all of Publisher Media shall not terminate this Agreement; however, termination of this Agreement shall cancel and close all Publisher Accounts and all Services to the Publisher Media in connection thereto. This Agreement may be terminated only in accordance with the termination provisions herein.
3.12 Marketing & Publicity. Publisher consents to Adsource’s use of Publisher’s name, brands, logos, and other trademarks in Adsource’s marketing materials and/or public disclosures (including press releases and Web sites). Publisher may use Adsource’s name, brands, logos, or other trademarks only with the prior written consent of Adsource.
4. REVENUE SHARE & PAYMENT
4.1 Revenue Share. The Revenue Share shall be determined by Adsource at its sole reasonable discretion or as otherwise agreed in a separate written instrument executed by the Parties. All payments of Revenue Share, whether payable or already paid, shall be subject to withholdings and/or deductions based on Adsource’s assessment of variables such as Invalid Activity and errors.
4.2 Operational Costs. The Revenue Share shall be calculated after deducting Operational Costs, as determined by Adsource at its sole reasonable discretion, from the gross revenue received by Adsource from Upstream Partners and/or Direct Advertisers.
4.3 Currency. Unless otherwise expressly stated herein, all money amounts referred to in this Agreement are in United States Dollars. Publisher shall solely bear the losses or gains from fluctuations in foreign exchange rates. Adsource shall be responsible for payment in U.S. currency only.
4.4 Payments. Adsource shall make payments to Publisher of the Revenue Share for a particular calendar month approximately 45 days after the end of that calendar month. For Revenue Share amounts in a particular month that do not reach at least $5,000 for wire transfer payments or $100 for check payments, such amount shall be rolled over to the following calendar month, and so forth, until the applicable minimum amount is reached and Adsource shall pay the Revenue Share to Publisher at that time. Adsource shall have no obligation to make any payment of the Revenue Share until all applicable tax forms (including Form-W8, Form-W9, and proof of tax exemption) are filled out correctly by Publisher and received by Adsource. Publisher shall be responsible, and Adsource shall not be responsible, for all applicable transactional fees (including wire transfer fees), which amounts Adsource may deduct from any payment of the Revenue Share.
4.5 Recouping Payments. Adsource reserves the right to recoup any payment made hereunder based on Adsource’s assessment of variables such as, but not limited to, recouping of Adsource’s revenue share from Upstream Partners, errors, fraud, and other Invalid Activity. Adsource shall be the sole determiner of what constitutes a variable that qualifies for recouping hereunder. Adsource agrees to provide documentation where available for recouped payments, including, but not limited to traffic and click counts, Publisher’s SUBID, and Upstream Partner’s feedback.
4.6 Taxes. Publisher understands, acknowledges, and agrees that all applicable sales, value-added, and other taxes required to be deducted by Adsource shall be deducted from the Revenue Share, unless Publisher provides Adsource with satisfactory proof of exemption.
4.7 Records. If there is any inconsistency or conflict between Adsource’s records and that of Publisher or any other party, then Adsource’s records shall be deemed the accurate and effective records at all times.
5. PUBLISHER’S OTHER OBLIGATIONS
5.1 Compliance. In using the Services, Publisher shall at all times act in good faith, in accordance with bona fide business practices, in compliance with the terms of this Agreement, and in compliance with all applicable laws, regulations, rules, and policies. Publisher shall also comply with any Implementation and technical requirements as specified in the Technical Guidelines and as determined and requested by Adsource from time to time. Adsource is not liable to pay any Revenue Share to Publisher if the Implementation does not meet the requirements in the Technical Guidelines and Adsource has provided notice to the Publisher of the changes made to the Technical Guidelines.
5.2 Ownership of Publisher Media. Publisher represents and warrants, and shall ensure at all times, that Publisher is at least one of the following in relation to the Publisher Media:
a. The owner and/or controller of the Publisher Media;
b. The licensor of the Publisher Media with authorization from the owner to use and/or control the Publisher Media in the manner contemplated herein; or
c. An agent of the owner of the Publisher Media and authorized to enter into this Agreement and use and/or control the Publisher Media in the manner contemplated herein.
Upon Adsource’s request, Publisher shall provide sufficient documentation (as requested by Adsource at its sole discretion) evidencing the above rights in the Publisher Media.
Without limiting any other term of this Agreement, breach of the following restrictions shall constitute material breach of this Agreement:
6.1 Conflicting Agreements. Publisher agrees that it shall not enter into any agreement or other arrangement that conflicts with this Agreement. If there is any conflict between this Agreement and any other agreement Publisher may be party to, then Publisher shall adhere to all the provisions of this Agreement despite the adherence constituting breach of such other agreement.
6.2 Illegal Activity & Abuse. Publisher shall not use the Services in a manner that is, or potentially is, illegal, a legal or other material risk to Adsource, generally objectionable in the Internet community, or degrading to the quality, goodwill, or reputation of Adsource and/or the Services.
6.3 Prohibited Traffic. Publisher shall not generate Internet traffic to the Publisher Media by any of the following methods, as determined by Adsource at its sole reasonable discretion: fraud; robotic computer program that runs automatically (such as spiders, Web crawlers, and all types of bots); listings on newsgroups; toolbars; spam or other bulk electronic mailing where the recipients are not opted in; ICQ or other messenger programs or applications; Internet Relay Chat or other chat room systems; iFrames; zero pixel frames; frames or windows displayed beyond the visible desktop; click farms or other similar methods; spy ware or other downloadable programs installed without the End Users’ consent (collectively “Prohibited Traffic”). Notwithstanding any other provision in this Agreement to the contrary, if Publisher is found using or engaging in Prohibited Traffic, Adsource reserves the right, at its sole discretion, to immediately suspend the Services, immediately terminate this Agreement, and/or seek any other remedy or recourse as Adsource deems necessary, including withholding Revenue Share payments as of the date of the breach.
6.4 Restricted Traffic. Publisher shall not deliver or generate Internet traffic from or to Restricted URLs and/or Restricted IP addresses. Publisher is solely responsible, and Adsource is not responsible, for ensuring that Internet traffic delivered or generated from or to URLs associated with the Publisher Media are not Restricted URLs. Publisher is also solely responsible, and Adsource is not responsible, for blocking out requests from Restricted IP addresses.
6.5 Solicitation. Publisher shall not entice, persuade, provide incentives, obligate, pressure, or otherwise attempt to cause any third party (including End Users) to visit the Publisher Media related thereto or click on any Advertisements thereon.
6.6 Revenue Redistribution. Publisher shall not distribute or share any portion of the Revenue Share earned hereunder to any third party.
6.7 Source Code. Publisher shall not, and shall not permit any third party to copy, use, analyze, reverse engineer, decompile, disassemble, translate, convert, or apply any procedure or process to the Services (including any Adsource Technology) to ascertain, derive, and/or appropriate for any reason or purpose the source code or source listings for any aspect of the Services or any trade secret information or process contained therein.
6.8 Storing Data. Publisher shall not index, cache, or otherwise store data obtained from the Services (including the Advertisements and Organic Results).
6.9 Modifications. Publisher shall not in any way modify the Advertisements or presentation thereof (including re-ordering the Advertisements or the URLs therein or eliminating any Advertisements). In no way shall Publisher display graphics or text in any form (including pop-ups, pop-unders, or exit windows) that block or otherwise limit the full and complete display to End Users of any aspect related to Advertisements. Publisher shall use the Advertisements and Organic Results as-is.
6.10 Disclosing Revenue Share. Under no circumstances shall Publisher disclose to any third party any aspect of the Revenue Share between the Parties, in whole or in part, and the Revenue Share shall be considered Confidential Information as defined herein.
6.11 Non-solicitation of Upstream Partner. During the Term or, if longer, for the duration that the Services are used by Publisher, and for a period of 1 calendar year thereafter, Publisher shall not, either directly or indirectly or in any capacity jointly or severally, solicit, induce, recruit or encourage business, or attempt to solicit, induce, recruit or encourage business, from any Upstream Partner any products or services competitive with the products or services contemplated by this Agreement.
6.12 Non-solicitation of Direct Advertiser. During the Term or, if longer, for the duration that the Services are used by Publisher, and for a period of 1 calendar year thereafter, Publisher shall not either directly or indirectly or in any capacity jointly or severally, solicit, induce, recruit or encourage business, or attempt to solicit, induce, recruit or encourage business, from any Direct Advertiser in connection with the Advertisements any products or services competitive with the products or services contemplated by this Agreement.
6.13 Cancellation of Services. In addition to any right or remedy provided for in this Agreement, Adsource reserves the right, at its sole discretion, to immediately suspend or cancel Services to all or any part of Publisher Media at any time if Publisher is in any breach of the restrictions hereunder. Such suspension or cancellation shall not terminate this Agreement. This Agreement may be terminated only in accordance with the termination provisions herein.
7. TERMINATION & SUSPENSION
7.1 Either Party. Either Party may terminate this Agreement immediately under the following circumstances:
a. If a Party breaches this Agreement and such breach is not cured within 10 Calendar Days of the breaching Party receiving from the non-breaching Party written notice to cure such breach.
b. If a Party materially breaches this Agreement and such material breach is not cured within 5 Calendar Days of the breaching Party receiving from the non-breaching Party written notice to cure such material breach.
7.2 For Convenience. Adsource may terminate this Agreement for convenience at any time upon provision to Publisher of 30 Calendar Days prior written notice of the termination.
7.3 Insufficient Activity. Adsource may terminate this Agreement upon 7 Calendar Days prior written notice to Publisher if the Publisher Account has no activity, is idle, or otherwise has insufficient Internet traffic generated to the Publisher Media, as determined by Adsource at its sole reasonable discretion.
7.4 Immediate Termination. This Agreement shall immediately terminate if Publisher:
a. makes a general assignment for the benefit of Publisher’s creditors;
b. appoints or has appointed a receiver, trustee in bankruptcy or similar officer to take charge of all or part of Publisher’s assets;
c. files or has a petition filed against Publisher in any bankruptcy; or
d. is adjudicated insolvent or bankrupt.
7.5 Immediate Suspension. Adsource may immediately suspend Services to Publisher or Publisher Media, in whole or in part, if Publisher’s activities constitute those that are, in Adsource’s sole determination:
a. illegal or potentially illegal;
b. a legal or other material risk, or otherwise harmful, to Adsource, its Affiliates, or any of their networks, infrastructure, and systems; or
c. a material abuse of the Adsource Technology or the Services, in whole or in part.
7.6 Upstream Partner Request. Adsource may immediately suspend Services or terminate this Agreement if any Upstream Partner makes a request to Adsource to take such action against Publisher.
7.7 Effect. Upon expiration or termination of this Agreement, all of the following shall take effect:
a. Publisher shall immediately cease all activities related in any way to this Agreement.
b. Adsource may withhold payments of the Revenue Share payable until Adsource has concluded its adjustments of the Revenue Share for variables such as, without limitation, errors, fraud, Invalid Activity, and violations under the Agreement. Once the adjustments have been finalized to Adsource’s satisfaction, Adsource shall pay to Publisher the Revenue Share payable to Publisher within 60 days of termination or expiration of this Agreement.
c. The terms of this Agreement that by their nature continue beyond the expiration or termination of this Agreement shall continue to be effective (including the terms relating to payments, termination, Intellectual Property, limitation of liability, indemnity, Confidential Information, and governing law).
8. INTELLECTUAL PROPERTY
Neither Party shall, at any time during or after the expiration or termination of this Agreement, assert or claim any interest in, or do anything that may adversely affect the validity of, the Intellectual Property of the other Party (including registering or attempting to register any trademark of the other Party or a mark confusingly similar thereto). Adsource shall at all times retain sole and exclusive right, title and ownership in and to all of its Intellectual Property.
9. REPRESENTATIONS & WARRANTIES
9.1 Publisher represents and warrants to Adsource as follows:
9.2 Publisher has the full power and authority to execute, deliver, and perform under this Agreement.
9.3 This Agreement is valid, binding, and enforceable against Publisher in accordance with the terms herein and no provision requiring Publisher’s performance hereunder is in conflict with Publisher’s obligations under any other agreement or causes Publisher to be in breach of any other agreement.
9.4 Publisher (as applicable) is duly organized, authorized and in good standing under the laws of the jurisdiction of its organization and is duly authorized to do business in all other jurisdictions in which Publisher’s business makes such authorization necessary or required.
9.5 Publisher has the full and exclusive right to grant or otherwise permit Adsource to access and use its Intellectual Property, and Confidential Information.
10. LIMITATION OF LIABILITY
Under no circumstances shall Adsource be liable to Publisher or to any other party for any consequential, indirect, special, incidental, reliance, exemplary, or punitive damages arising out of or relating to this Agreement and/or the Services, whether foreseeable or not, and whether based on breach of any express or implied warranty, breach of contract, misrepresentation, negligence, strict liability in tort, or other cause of action (including damages for loss of data, goodwill, reputation, business, money, or opportunity), even if Adsource has been advised of the possibility of such damages. Under no circumstances shall Adsource’s aggregate liability to Publisher in connection with this Agreement and/or the Services exceed the aggregate amount of $10,000 regardless of the cause of action.
11.1 No Warranties. Adsource makes no warranty of any kind, either express or implied, regarding the quality, accuracy, reliability, or validity of the applications, software, data, or information related to Adsource’s network, systems, Adsource Technology, or the Services. Adsource provides any and all aspects of the Services (including the Adsource Technology) “as-is” and specifically disclaims all warranties of merchantability and fitness for a particular purpose. Publisher understands, acknowledges, and agrees that it shall use the Services, and all aspects thereof, at Publisher’s sole risk. Adsource further expressly disclaims any and all warranties as to the appropriateness, validity, non-infringement, or legality of the content related to or residing on the Publisher Media, Advertisements, and Web pages linked thereto.
11.2 Content. Publisher understands, acknowledges, and agrees that the content in Advertisements, and Organic Results is generated by an automated process and that Adsource is not responsible for any such content. It shall be Publisher’s sole responsibility, and not the responsibility of Adsource, to consistently monitor the Advertisements and/or the Organic Results and notify Adsource of any content that is illegal or that Publisher otherwise wants removed. Adsource does not guarantee that Adsource shall or can remove any content that Publisher requests to be removed, except for illegal or adult content that is within Adsource’s ability to directly remove. Notwithstanding anything to the contrary set forth in this Agreement, in no event shall Adsource have any liability or obligations arising from any Advertisements, Organic Results, any third party Web sites, or any content or information provided by Upstream Partners, Direct Advertisers, Publisher, Publisher’s End Users, or any other third party.
11.3 Publisher Media. Publisher understands, acknowledges, and agrees that Adsource is in no way responsible for the registration, renewal, validity, maintenance, hosting or continued existence of any Publisher Media.
Each Party agrees to defend, indemnify and hold harmless the other party and their respective directors, officers, employees and agents from and against any and all damages, liabilities, costs and expenses (including reasonable attorneys’ fees) (collectively “Losses”) incurred as a result of any claim, judgment or proceeding relating to or arising out of such Party’s breach of the Agreement, including such Party’s gross negligence, intentional misconduct, or violation of an applicable law, statute or regulation.
If any action is brought against either Party (the “Indemnified Party”) in respect to any allegation for which indemnity may be sought from the other Party (“Indemnifying Party”), the Indemnified Party will promptly notify the Indemnifying Party of any such claim of which it becomes aware and will: (i) provide reasonable cooperation to the Indemnifying Party at the Indemnifying Party’s expense in connection with the defense or settlement of any such claim; and (ii) be entitled to participate at its own expense in the defense of any such claim. The Indemnified Party agrees that the Indemnifying Party will have sole and exclusive control over the defense and settlement of any such third party claim. However, the Indemnifying Party will not acquiesce to any judgment or enter into any settlement that adversely affects the Indemnified Party’s rights or interests without the prior written consent of the Indemnified Party.
13. FORCE MAJEURE
Neither Party shall be liable for delays in its performance of this Agreement caused by circumstances beyond its reasonable control (“Force Majeure”), including acts of God, wars, riots, national disasters, earthquakes, strikes, fires, floods, shortages of labor or materials, labor disputes, transportation problems, accidents or governmental restrictions. Each Party shall make all reasonable efforts to reduce to a minimum and mitigate the effect of any Force Majeure event.
Each Party (the “Recipient”) shall protect the confidentiality of any Confidential Information disclosed by the other Party (the “Discloser”) and shall not use such Confidential Information except in strict accordance with this Agreement. Confidential Information as defined herein does not include information that: (i) is generally available to the public through no fault of the Recipient and without breach of this Agreement; (ii) was already in the possession of the Recipient prior to disclosure by the Discloser and without any confidentiality obligation attached thereto, as evidenced by the Recipient’s records existing prior to the time of disclosure; (iii) was disclosed to the Recipient by a third party without a breach of such third party’s confidentiality obligations thereto; (iv) was independently developed by the Recipient without a breach of this Agreement or reliance on any Confidential Information; (v) is disclosed by the Recipient after obtaining the Discloser’s prior written approval; (vi) is required to be disclosed by law, provided that the Recipient promptly notifies the Discloser of the legal obligation and provides the Discloser with a reasonable opportunity to seek a protective court order, or the equivalent.
15.1 Method. Any notice or other communication between the Parties required or permitted under this Agreement shall be in writing and shall be delivered by hand, sent by first class mail (postage prepaid), sent by commercial courier, or transmitted by electronic mail or facsimile to a Party at the contact information first mentioned above in this Agreement, or to such other contact information as the applicable Party may notify to the other Party.
15.2 Effectiveness. Any notice or other communication sent shall: (a) if delivered by hand, be deemed to have been received on the date of delivery; (b) if sent by first class mail, be deemed to have been received on the third Business Day following the date of mailing; and (c) if sent by electronic mail or facsimile, be deemed to have been received on the date the sender transmitted the notice or other communication.
16. COMPLETE AGREEMENT
This Agreement and all schedules attached hereto constitute the complete agreement between the Parties relating to the subject matter hereof and supersedes all prior and other understandings, representations, warranties, and agreements relating hereto, whether verbal, written, or otherwise.
17. NO THIRD PARTY BENEFICIARIES
This Agreement is for the sole benefit of the Parties, and does not create any rights on the part of any third party, and Publisher shall not commit any act or omission that would give rise to any such third party rights.
18. AMENDMENTS & WAIVER
Adsource may, at its sole discretion, make modifications to this Agreement, from time to time and as reasonably necessary. Such modifications shall take effect 14 Calendar Days from the date Adsource transmits a notice of such modifications via electronic mail to Publisher. Publisher acknowledges and agrees that Publisher’s sole remedy is to terminate this Agreement, without liability, in accordance herewith if Publisher does not agree to any of the modifications Adsource may make to this Agreement. Publisher may not amend this Agreement except by a written instrument executed by both the Parties. No waiver by a Party of a breach of any provision hereof shall take effect or be binding upon that Party unless expressly waived in writing, and such waiver shall extend and apply only to the particular breach so waived and shall not limit or affect the rights of the waiving Party in respect of any future breach or in respect of any breach of any other provision hereof.
19. RELATIONSHIP OF THE PARTIES
Nothing in this Agreement shall be construed as creating a relationship of employer and employee, principal and agent, partnership or joint venture between the Parties. Each Party shall be deemed an independent contractor at all times and shall have no right or authority to assume or create any obligation on behalf of the other Party except as may be expressly provided herein.
Publisher shall not assign or otherwise transfer its respective rights or obligations under this Agreement without the prior written consent of Adsource, which shall not be unreasonably withheld. Any assignment or transfer in violation of this section shall be null. This Agreement shall be binding and have effect upon the Parties and their respective successors and permitted assigns. Nothing herein, express or implied, is intended to confer upon any person, other than the Parties and their respective successors and permitted assigns, any rights, remedies, obligations or liabilities under this Agreement. Adsource may assign this Agreement at its sole discretion to any of its Affiliates or as part of a merger or acquisition of all or substantially all of Adsource’s shares or assets.
21. GOVERNING LAW & SEVERABILITY
This Agreement shall be governed and construed in accordance with the laws of the State of Washington without giving effect to any rule of conflicts of law. The federal or state courts located in Seattle, Washington shall have exclusive jurisdiction to hear any dispute under this Agreement. This Agreement shall not be governed by or construed in accordance with the United Nations Convention on Contracts for the International Sale of Goods. If any portion of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable for any reason, such illegality, invalidity or unenforceability shall not affect the validity of the remainder of this Agreement.
22. CONSTRUCTION & INTERPRETATION
References. All references in this Agreement to particular sections, titles, and Schedules shall be references to the sections, titles, and Schedules of this Agreement only unless specific reference is made otherwise. The words “herein”, “hereof”, “hereto”, and “hereunder” and words of similar meaning shall refer to this Agreement in its entirety and not to any particular provision of this Agreement.
22.1 Without Limitation. When used for listing purposes, the terms “for example,” “including” and/or “includes” shall be deemed to mean “for example, but not limited to,” “including, but not limited to” or “includes, but is not limited to,” as applicable. Wherever in this Agreement that the masculine, feminine or neutral gender is used, it shall be construed as including all genders, and wherever the singular is used, it shall be deemed to include the plural and vice versa, where the context so requires.
22.2 Translations. This Agreement has been executed in the English language. If there is any discrepancy or conflict between the English version and a version in any other language, then the English version shall control in all respects.
22.3 Contra Proferentum. Any rule of construction to the effect that any ambiguity is to be resolved against the drafting party shall not be applicable in the interpretation of this Agreement
This Agreement may be executed in multiple counterparts, and delivered via electronic mail or facsimile, each of which so executed shall be deemed to be an original, and such counterparts together shall constitute one and the same instrument. The individual executing this Agreement on behalf of Publisher represents and warrants that s/he is authorized to execute this Agreement on behalf of Publisher and, to the best knowledge of such individual, all representations made in this Agreement by Publisher are true and correct.