This Publisher Agreement is entered into between Art Of Click, (“ART OF CLICK”), and the publisher (together with its affiliates, the “Client”). This “Agreement” means the Publisher Agreement together with the applicable selections made by Client from time to time in connection with its ART OF CLICK account (the “Client Selections”). Client and ART OF CLICK are sometimes referred to herein as the “Parties” (each as a “Party”).
WHEREAS, ART OF CLICK facilitates Programs (as defined below), offers Additional ART OF CLICK Services (as defined below), and offers related services (all of the foregoing, collectively, the “Services”) and Client wishes to receive Services from ART OF CLICK in accordance with the terms and conditions of this Agreement.
NOW THEREFORE, in consideration of the mutual promises and covenants contained herein, and for other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Programs; Advertisements; Implementation
ART OF CLICK will make available to Client the specific details offered by advertisers in ART OF CLICK’s network (the “Advertiser(s)”) relating to such Advertiser’s advertising or promotional programs (the “Program(s)”), including, without limitation, the amount and calculation of financial compensation to be earned by Client (“Program Terms”). Client agrees to display all advertisements, offers, promotions, and the like presented or delivered to Client by ART OF CLICK, (collectively, the “Advertisements”), in accordance with this Agreement. Client shall comply with any placement and delivery requirements, any requirements to implement code and any technical specifications that are provided by ART OF CLICK at any time to enable proper display of the Advertisements on a reasonable schedule. Any exceptions to the foregoing must be approved by ART OF CLICK in writing. Client will be solely responsible for any and all costs Client incurs for the display of the Advertisements in accordance with such specifications and for any programming related to the same which Client elects to undertake.
2. Additional Services.
Client may agree to additional ART OF CLICK services by using such services, submitting its approval to ART OF CLICK or accepting by way of email or digital acceptance, as applicable. Additional ART OF CLICK services (“Additional ART OF CLICK Services”) include but are not limited to cross-promotion services, virtual goods hosting services, virtual currency hosting services, display advertising, interstitial advertising, and any additional features and/or functionality made available to Client. Client acknowledges and agrees that additional ART OF CLICK services and additional features or functionality made available may be subject to additional and/or different terms including a different revenue share and to the extent Client approves or uses such additional features or functionality, it agrees to be bound by such terms.
3. Licenses to User Data.
Client hereby grants to ART OF CLICK a royalty-free, fully paid up, sub-licensable, transferable, nonexclusive, worldwide and perpetual right and license to reproduce, display, distribute, create derivative works from and otherwise use all data and information generated (a) by the application(s) specified in the Client Selections (the “Applications”) and/or (b) in conjunction with the Services ((a) and (b) together, the “User Data”).
Client acknowledges that ART OF CLICK will provide third-party Advertisements for display on the Application(s) pursuant to this Agreement. Client agrees that it will use any data, information or software provided by ART OF CLICK to Client only for the purpose of displaying Advertisements for ART OF CLICK on the Application(s) as set forth in this Agreement. As between the parties, ART OF CLICK will solely own and retain all rights, title, and interest in and to: (a) the Services, including all information and software related thereto and all data (including any usage data and compilations thereof but excluding any User Data provided by Client) collected through the ART OF CLICK Services or the Advertisements, and (b) any materials, information, inventions, data or software (and improvements and updates related thereto) which were owned by ART OF CLICK prior to this Agreement or which are subsequently created by ART OF CLICK (either solely or jointly with Client) under this Agreement. As between the parties, Client will own and retain all rights, title, and interest in and to: (i) the Application(s), and (ii) the User Data. Unless otherwise expressly provided for in this Agreement, each Party agrees not to copy, alter, modify, or create derivative works of the other Party’s data, information, software or services or otherwise use the other Party’s services or any of such Party’s data, information or software in any way that violates the use restrictions contained in this Agreement. ART OF CLICK does not grant to Client any license, express or implied, to the intellectual property of ART OF CLICK or its licensors.
5. Non-Circumvention; Certain Restrictions
Client acknowledges the value of obtaining access to the Advertisers, and hereby agrees that, during the term of this Agreement, Client will not purchase or seek to purchase advertisements from such Advertisers directly by circumventing or bypassing the Services or in any other way. Client also acknowledges that ART OF CLICK does not provide the Services for any entities that run, provide, enable or promote, for themselves or for others, services similar to any services provided by ART OF CLICK. Client represents, covenants and warrants that it is not and shall not be such an entity during the term of this Agreement. Unless ART OF CLICK approves specifically in writing, (i) Client may only use the Services (including any SDK and API) as provided by ART OF CLICK, without modification, and (ii) Client shall not modify or alter the content, text or appearance of any Advertisements, or aggregate one or more Advertisements with other offers. Without limiting the generality of the foregoing, Client shall not circumvent or otherwise interfere with or manipulate in any way ART OF CLICK’s tracking and monitoring of installation of third party applications, completion of specified actions within third party applications or on specified URLs, activation of third party services, participation in lead generation and/or pay-per-performance offers, interaction with video and/or audio content, interaction with rich media content, visits to prescribed geographic locations, transmitting messaging, or any other action for which Advertisements provide incentives to the end users of the Application(s), ART OF CLICK’s payment calculation processes or the Services generally.
ART OF CLICK shall pay Client its then current standard revenue share associated with each applicable Program, due and payable within thirty (30) days following the end of each calendar month; provided that notwithstanding anything to the contrary herein, Client expressly acknowledges and agrees that (i) ART OF CLICK’s obligation to forward such payment hereunder is conditioned upon ART OF CLICK receiving the corresponding amounts from Advertiser in connection with the applicable Program and (ii) ART OF CLICK shall have no liability to Client or any other party for a failure to pay Client any amounts hereunder to the extent that such failure was caused by or results from Advertiser’s failure to pay in full all amounts due and owing to ART OF CLICK in connection with the applicable Program. Client shall be solely responsible for the payment of, and shall pay when due, all applicable federal and state taxes, including any sales, use, excise or transfer taxes and other taxes associated with payments to Client under this Section 6 (except for taxes assessed on ART OF CLICK’s net income), and shall indemnify ART OF CLICK for all costs, losses, liabilities and expenses, including penalties, arising from any failure to do so. Payments shall be based upon ART OF CLICK’s calculations, which shall be final. If Client disputes any payment, it must notify ART OF CLICK in writing within thirty (30) days of the date of payment or forever waive Client’s rights to raise the dispute. ART OF CLICK will not be obligated to make a payment to the Client based on (x) any fraudulent actions generated by any person, bot, automated program or similar device in connection with any Advertisements provided by ART OF CLICK, as reasonably determined by ART OF CLICK; (y) any purchase through any fraudulent or invalid means, including the fraudulent use of credit cards or other means of payment; or (z) purchases that are refunded or subject to a credit card charge-back. In the event that ART OF CLICK does not make a payment pursuant to this Section 6, ART OF CLICK shall, upon request made by Client, provide reasonable documentation to Client with respect thereto.
ART OF CLICK will not, under any circumstances, be responsible or liable for (a) any of Client’s Applications, (b) the commercial practices of Client, (c) such Client’s websites, advertisements, or e-mails, or (d) any other application, software, information, content, trademarks or other materials that Client makes available to any consumers, customers, or other users, regardless of whether such access was through the provision of the Services or otherwise. Client is solely responsible, and assumes all liability and risk, for determining whether or not such content is appropriate or acceptable. Notwithstanding the foregoing, ART OF CLICK reserves the right at all times, at its discretion and without notice, to remove or refuse to distribute any Advertisements or other content on or distributed through the Services and, in the event of any such actions, Client hereby acknowledges and agrees that ART OF CLICK shall have no liability to Client or any other entity in connection therewith. ART OF CLICK also reserves the right to access, read, preserve and disclose any information as it reasonably believes is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request; (ii) enforce this Agreement, including investigation of potential violations hereof; (iii) detect, prevent, or otherwise address fraud, security, or technical issues; (iv) respond to user support requests; or (v) protect the rights, property or safety of ART OF CLICK, its users and the public. Notwithstanding the foregoing, if such information constitutes Confidential Information (as defined in Section 13) of the Client, the provisions of Section 13 shall control over the foregoing provisions.
8. Compliance with Laws.
Client agrees that it will display the Advertisements, provide any data to ART OF CLICK as required under this Agreement, and otherwise use the Services in compliance with all applicable local, state, national and international laws, rules and regulations, including any laws regarding the transmission of technical data exported from Client’s country of residence. Client will not, will not agree to, and will not authorize or encourage any third party to: (a) use the Services to transmit or otherwise distribute any content that is unlawful, defamatory, libelous, harassing, abusive, fraudulent or obscene, that contains viruses, or is otherwise objectionable, as determined by ART OF CLICK; (b) interfere or attempt to interfere with the proper working of the Services or prevent others from using the Services; or (c) use the Services for any fraudulent or unlawful purpose. Violation of any of the foregoing may result in immediate termination of this Agreement, at ART OF CLICK’s sole discretion, and may subject Client to state and federal penalties and other legal consequences. ART OF CLICK reserves the right, but will have no obligation, to review Client’s display of the Advertisements and use of the Services in order to determine whether a violation of this Agreement has occurred or to comply with any applicable law, regulation, legal process, or governmental request.
9. Representations and Warranties.
Without limiting any other representation, warranty or covenant herein, each Party hereby represents and warrants to the other Party that: (a) it has the full right, power and authority to enter into this Agreement; (b) this Agreement is a valid and binding obligation of such Party; and (c) it has obtained and shall maintain throughout the term of this Agreement all necessary licenses, authorizations, approvals and consents to enter into and perform its obligations hereunder in compliance with all applicable laws, rules and regulations (including the CAN-SPAM Act of 2003 and, in the case of Client, any necessary rights or consents from Users to allow User Data to accrue to ART OF CLICK pursuant to Section 3). Client further hereby represents and warrants that the Application(s) (i) are and will be in compliance with all applicable local, state, national and international laws, rules and regulations, and contractual obligations between Client and any third party; and (ii) do not and will not violate any third party’s intellectual property or proprietary rights, or which slanders, defames, libels, or invades the right of privacy, publicity, or other property rights of any person.
Each Party agrees to indemnify and hold harmless the other Party and its affiliates from and against any losses, costs, liabilities and expenses, including reasonable attorneys’ fees, arising out of any breach of the representations or warranties made by such Party herein. The Party being indemnified under this Section 10. (the “Indemnitee”) shall provide the indemnifying Party (the “Indemnitor”) with prompt written notice of any claims that the Indemnitor is required to indemnify the Indemnitee in accordance with this Section 10. The Indemnitor shall have the sole right to assume and control the defense of any such indemnifiable claim at its own expense with counsel selected by the Indemnitor. The Indemnitor may not settle any such indemnifiable claim without the Indemnitee’s prior written consent, which consent will not be unreasonably withheld or delayed. Notwithstanding any of the foregoing, the Indemnitee shall have the right, in its absolute discretion and at its sole cost, to employ attorneys of its own choice and to institute or defend any such claim.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, ART OF CLICK MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, OR ARISING BY STATUTE, CUSTOM, COURSE OF DEALING OR TRADE USAGE, WITH RESPECT TO ANY MATTER, INCLUDING ADVERTISING, THE SERVICES, OTHER SERVICES, AND EXPRESSLY DISCLAIMS THE WARRANTIES OR CONDITIONS OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. FURTHER, ART OF CLICK MAKES NO GUARANTEE REGARDING THE VOLUME OR TIMING OF ACTIONS IN CONNECTION WITH THE SERVICES. ART OF CLICK DOES NOT WARRANT THE RESULTS OF USE OF THE SERVICES, INCLUDING WHETHER CLIENT WILL EARN ANY PARTICULAR AMOUNTS (OR ANY AMOUNTS AT ALL), AND CLIENT ASSUMES ALL RISK AND RESPONSIBILITY WITH RESPECT THERETO. Without limiting the generality of the foregoing, Client acknowledges that revenue from the Services varies based on factors that may not be within ART OF CLICK’s control. Client acknowledges that, unless otherwise agreed through the Client Selections or in writing, Client receives and shall use without modification the Services.
11.1 Additional Disclaimer, this is to acknowledge that the CLIENT, shall fully agree and abide by the conditions set forth and communicated properly by advertiser .To be specific, all direct and/or exclusive campaigns from Art of Click shall be assumed by Art of Click to be promoted correctly and shall abide with the requirements set forth by Art of Click, with regards to placements, KPIs and any other binding rules from Art of Click’s advertiser(s). The Media Company shall agree to monitor closely the manner in which such campaigns have been promoted and shall be responsible for all the risks associated with such activity. If in any case whatsoever, that failure by the Media Company to abide with the agreed promotion of such campaigns shall merit a penalty to be disclosed by Art of Click to Client. The nature of penalty shall depend on the weighted risk that Art of Click shall bear to its respective advertiser(s).
I. SPECIFIC RESTRICTIONS
a. Restrictions to be adhered to. The specific restrictions (“Restrictions”) mentioned herein are required to be strictly adhered to. Any breach of these Restrictions will be subject to Clause II.
b. Definitions specific for this Clause I. For the purposes of this Clause I, the words set forth shall have the meaning set forth below:
“App” means the mobile application.
“Site” or “Sites” refers to Media Company Properties and Network Properties.
“Blacklist” comprises of one or all of the following
i. A list of websites where the Ad shall not be placed within;
ii. A list of mobile applications where the Ad shall not be placed within; and,
iii. A list of networks which the Media Company is not allowed to work with.
“Operating System” means a software that supports a phone’s basic functions. Operating System examples are, but not limited to, the following:
i. iOS developed by Apple; and,
ii. Android developed by Google.
c. Type. The Media Company represents and warrants that it shall not serve Ads with the following creative attributes or behaviours:
i. Auto-redirect Ads: Ads that automatically redirect the User to Advertiser websites without the user’s engagement or action (e.g., click, touch) and Ads result in forced installations of Advertiser applications. For clarification purposes, forced-installation also includes the act of not asking the Users for permission before initiating a download/redirect.
ii. Pop-up Ads that cannot be closed by the Users.
iii. Ads that are misleading. Such Ads result in misleading clicks that do not display expected content.
iv. Incentivized Ads: The incentivized ad model (or sponsored, rewarded or value exchange) rewards a user in exchange for completing an action such as installing an app, completing a video ad view, engaging with an app, registering for a website, etc.
v. Fake coupons: Such ads result in mentioning fake promotions in order to generate clicks and/or engagement.
vi. Ad placements mentioning income earnings (e.g., “sign up today and earn X amount per week”)
d. Traffic Targeting. The Media Company represents and warrants that it shall not place Ads in websites, mobile sites or apps containing the following attributes:
i. Online dating;
ii. Extreme graphics;
iii. Explicit violence;
v. Profane content;
vi. Seditious content; and
vii. Hate content.
e. Websites, Mobile sites or Apps. The Media Company represents and warrants that it shall not place Ads in the following websites:
i. Malicious websites or apps; and
ii. Landing pages that are solely designed to send users elsewhere;
f. Platforms. The Media Company represents and warrants that it shall not place Ads in the following platforms:
ii. Twitter; and,
iii. Google Adwords.
without prior written consent of Art of Click.
g. Material. The Media Company shall only use banners and text Ads provided by Art of Click. All other banners and text Ads, including those created by Media Company, shall require prior approval from Art of Click.
h. Reproduction. The Media Company shall not use or reproduce the Ads other than to the extent permitted in the IO. For the avoidance of doubt, Users may retain a cached copy of the Ads for the purposes of viewing only.
i. Operating Systems. The Media Company shall not target Operating System (or versions thereof) that are not compatible with the App, as instructed by Art of Click from time to time (“Non-compatible OS”). Art of Click reserves the right not to make payment for Non- compatible OS installations of the App.
j. Rebrokering. Unless otherwise agreed between the parties in writing, the Media Company shall not outsource or subcontract the buying or delivery of Ads on Websites, Mobile Sites or Apps to third parties and shall deliver only direct or proprietary traffic arriving via exclusive Serial Developer Kit/Advanced Programming Interface Integration.
k. Blacklist. Art of Click will periodically provide the Media Company with a blacklist which stipulates websites, mobile sites and apps which the Media Company is not allowed to work with.
II. CONSEQUENCES FOR BREACHING SPECIFIC RESTRICTIONS
a. Consequences. In the event of any breach of the terms set forth in Clause I, Art of Click shall, at its election,
i. be entitled to terminate the IO and request for a full refund of all fees paid under the IO; or
ii. request that the Media Company pay Art of Click, as liquidated damages(and not as penalty), fifty (50) percent of fees payable to the Media Company in the month.
b. Genuine Pre-Estimate. The parties agree that the quantum payable as liquidated damages (as stipulated in clause II (a)(ii)) is a genuine pre-estimate of the foreseeable damages incurred by Art of Click due to the breach of Clause I.
c. Withholding of Payments due. If there are any payments due to the Media Company for work rendered, such payments shall be withheld by Art of Click indefinitely, or till the proof of rectification of the breach of Restrictions and that Art of Click is satisfied that the breach has been fully rectified.
12. Limitation of Liability and Damages.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ART OF CLICK’s AGGREGATE LIABILITY UNDER THIS AGREEMENT (REGARDLESS OF THE FORM OF ACTION GIVING RISE TO SUCH LIABILITY AND WHETHER SUCH ACTION IS IN CONTRACT, TORT, OR OTHERWISE) SHALL BE LIMITED TO THE LESSER OF (A) THE TOTAL OF ALL FEES PAID AND PAYABLE BY ART OF CLICK to CLIENT FOR THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM AROSE AND (B) FIVE THOUSAND DOLLARS ($5,000.00). Except for willful misconduct by A Party, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES OF ANY KIND OR FOR ANY LIABILITY RESULTING FROM LOSS OF GOODWILL, LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA, IN ANY CASE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, HOWSOEVER CAUSED, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LIABILITY OR CLAIM. CLIENT SHALL NOT COMMENCE ANY ACTION, SUIT OR PROCEEDING AGAINST ART OF CLICK MORE THAN ONE (1) YEAR AFTER THE DATE UPON WHICH THE CLAIM AROSE.
“Confidential Information” shall mean (a) the Advertisements, prior to publication; (b) the existence and nature of the relationship between the Parties; (c) any statistics or other data relating to the Services; and (d) any information designated in writing, or identified orally at time of disclosure, by the disclosing Party as “confidential” or “proprietary.” During the term of this Agreement, and for a period of one (1) year following termination, each Party will keep confidential, and neither Party will use or disclose, any and all Confidential Information of the other Party, except as specifically contemplated herein. Neither Party shall use Confidential Information of the other Party for any purpose other than to perform its obligations and exercise its rights under this Agreement. Either Party may disclose Confidential Information of the other Party only to its employees or consultants who have a need to know such Confidential Information and who are bound to retain the confidentiality thereof under provisions (including, without limitation, provisions relating to non-use and non-disclosure) no less restrictive than those required by the receiving Party for its own Confidential Information. Each Party shall maintain Confidential Information of the other Party with at least the same degree of care it uses to protect its own proprietary information of a similar nature or sensitivity, but no less than reasonable care under the circumstances. Each Party shall advise the other Party in writing of any misappropriation or misuse of Confidential Information of the other Party of which the notifying Party becomes aware. The foregoing restrictions shall not apply to information that: (i) has been independently developed by the receiving Party without use of or access to the disclosing Party’s Confidential Information and without any violation of any obligation of this Agreement; (ii) has become publicly known through no breach of this Section 13 by the receiving Party; (iii) has been rightfully received from a third party authorized to make such disclosure; (iv) has been approved for release by the disclosing Party in writing; or (v) is required to be disclosed by a competent legal or governmental authority, provided that the receiving Party gives the disclosing Party prompt written notice of such requirement prior to disclosure and assists in obtaining an order to protect the information from public disclosure.
Client agrees that ART OF CLICK may identify it in ART OF CLICK’s client lists and other marketing materials, and that ART OF CLICK may issue a Client-approved press release announcing the establishment of the relationship between the Parties. Any other uses of Client’s name and/or logo will require Client’s prior written consent.
Either Party may terminate this Agreement at any time for any reason or for no reason upon thirty (30) days prior written notice to the other party. In the event of a material breach of this Agreement by either Party and failure of the breaching Party to cure such breach within thirty (30) days, the non-breaching Party may terminate this Agreement immediately upon written notice without liability to the other Party. In the event of any termination, both parties will remain liable for any amounts owed to the other Party prior to the date of termination and such obligation to pay shall survive any termination of this Agreement. Sections 4, 5, 6, 7, 10, 11, 12, 13, 15 and 16 shall also survive any termination of this Agreement.
16.1 Interpretation. The words “include” and “including” and variations thereof will not be deemed to be terms of limitation, but rather will be deemed to be followed by the words “without limitation”.
16.2 Assignment. This Agreement, and any rights granted hereunder, may not be transferred or assigned by Client without the prior written consent of ART OF CLICK. ART OF CLICK may freely transfer or assign any or all of its rights, licenses and obligations associated with this Agreement at any time.
16.3 Relationship of the Parties. ART OF CLICK and Client are independent contractors, and neither ART OF CLICK nor Client is an agent, representative or partner of the other.
16.5 Amendment; Notices. ART OF CLICK may amend this Agreement at any time by posting a notice on its website or through the Services, or by sending Client a notice via email or postal mail. Client’s continued use of the Services following such notification constitutes Client’s acceptance of the terms and conditions of this Agreement as modified. Any notices under this Agreement shall be emailed to email@example.com.
16.6 Waiver. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving Party.
16.7 Severability. If any provision contained in this Agreement is determined to be invalid, illegal, or unenforceable in any respect under any applicable law, then such provision will be severed and replaced with a new provision that most closely reflects the original intention of the Parties, and the remaining provisions of this Agreement will remain in full force and effect.
16.8 Dispute Resolution; Governing Law. Any dispute hereunder will be negotiated in good faith between the Parties within ten (10) business days commencing upon written notice from one Party to the other, failing which either Party may exercise any remedies which it may have at law or in equity. This Agreement shall be governed by and construed in accordance with the laws of Singapore, without giving effect to principles of conflicts of law. Client agrees that any action at law or in equity arising out of or relating to this Agreement will be filed only in the courts in and for Singapore, and Client hereby consents and submits to the personal and exclusive jurisdiction of such courts for the purposes of litigating any such action.
16.9 Force Majeure. Neither Party shall be responsible for failure to perform an obligation (other than an obligation to pay) hereunder due to a cause beyond its reasonable control, including, without limitation, terrorism, fire, civil disturbance, war, rebellion, earthquake, flood and similar occurrences, provided that performance shall resume as soon as possible after the cause no longer prevents such performance.
16.10 Counterparts. This Agreement may be executed in several counterparts, each of which will be considered an original but all of which together will constitute one agreement.