These Terms set forth the terms and conditions upon which Publisher will distribute Campaigns. Capitalized words used in these terms but not otherwise defined herein shall have the meanings ascribed to them in the IO.
- “Advertising Materials” means creatives, copy, and/or URLs for a Campaign.
- “Agreement” means each IO and these Terms.
- “Application” means the ReachMobi Application or third party product specified in the IO.
- “Campaign” means an advertising campaign for the promotion and distribution of an Application.
- “IO” means a mutually agreed insertion order that incorporates these Terms by reference, under which Publisher will deliver Campaigns.
- “Installs” are specified in the IO.
- “Payment Dispute Period” means the period of time beginning on the day payment for a calendar month is received by Publisher under this Agreement and ending thirty (30) days thereafter.
- “Publisher” means the publisher set forth in the IO.
- “Publisher Property or Publisher Properties” means the websites, applications, or other source approved in advance by ReachMobi, upon which Publisher displays the Advertising Materials for a Campaign.
- “ReachMobi” means ReachMobi, Inc., a Delaware corporation.
- “ReachMobi Application” means the ReachMobi product specified in the IO, which may include, but not be limited to, the ReachMobi MobileInbox Product and/or browser push notification product.
- “ReachMobi Confidential Information” means any information disclosed by ReachMobi, which is designated as “Confidential,” “Proprietary,” or some similar designation, or which under the circumstances surrounding disclosure ought to be treated as confidential. ReachMobi Confidential Information does not include information which (i) is or becomes generally available or part of the public domain through no fault of Publisher; (ii) was already known by or available to Publisher prior to the disclosure by ReachMobi; (iii) is subsequently disclosed to Publisher by a third party who is not under any obligation of confidentiality to ReachMobi; or (iv) as can be shown by written documentation, has already been or is hereafter independently acquired or developed by Publisher without use of or reference to ReachMobi Confidential Information, as evidenced by written documents or records.
- “ReachMobi Marks” means the ReachMobi name, the ReachMobi logo, and ReachMobi’s product and service names.
- “ReachMobi MobileInBox Product” means the proprietary software and technology developed by ReachMobi that allows a user of a mobile device to install an email inbox onto the user’s mobile device.
- “Terms” means these ReachMobi Distribution Publisher Terms and Conditions.
- Subject to the terms and conditions of this Agreement, Publisher shall display the Advertising Materials provided by ReachMobi on Publisher Properties. Each Publisher Property is subject to review and approval or rejection by ReachMobi, in its sole discretion, at any time. Publisher shall implement the Advertising Materials in accordance with any placement requirements and reasonable technical specifications provided by ReachMobi. Publisher shall not provide any Advertising Materials unless otherwise agreed in writing by the parties. At ReachMobi’s request, Publisher shall (a) disclose the Publisher Properties to ReachMobi, and/or (b) cease the use of Advertising Materials on certain or all of the Publisher Properties.
- Publisher shall not display the Advertising Materials anywhere other than the Publisher Properties. Additionally, Publisher shall not and shall not authorize or permit any third party to (i) edit, alter, copy, modify, obscure, or minimize the Advertising Materials in any way without the prior written approval of ReachMobi; (ii) re-syndicate the Advertising Materials without the prior written approval of ReachMobi; (iii) display any Advertising Materials on any error page, on any chat page, or in email; (iv) directly or indirectly access, launch, and/or activate Advertising Materials through or from, or otherwise incorporate the Advertising Materials in, any manner not expressly permitted under this Agreement; or (v) redirect a user away from any ReachMobi website to which the Advertising Materials relate, intersperse any content between the Advertising Materials and the applicable ReachMobi website, or otherwise provide anything other than a direct link from the Advertising Materials to the applicable ReachMobi website.
- If the IO contemplates a Campaign for the ReachMobi MobileInbox Product, then during the term of this Agreement and for six (6) months following termination or expiration of this Agreement, Publisher agrees not to enter into any agreement or other arrangement with any party other than ReachMobi relating to the offering, advertising, distribution, or other marketing of applications or products that are the same as or similar to the ReachMobi MobileInbox Product.
- ReachMobi shall pay Publisher the payment amount for Campaigns as set forth in the IO within thirty (30) days after the end of each calendar month in which the payment was earned. Payment amounts will be measured by tracking reports prepared by ReachMobi. ReachMobi’s reporting (including, without limitation, determination of the number of clicks, impressions, Installs, or other actions as applicable) shall be the only and definitive measure of payments owed under this Agreement. All payments shall be made in U.S. Dollars, unless otherwise agreed in writing by ReachMobi. Any banking fees, wire fees, and/or other transaction costs in connection with the payments to Publisher shall be the sole responsibility of Publisher.
- Notwithstanding anything in this Agreement to the contrary, payments may be adjusted by ReachMobi for any taxes (excluding taxes assessed on the net income of ReachMobi) and other governmental charges. ReachMobi will have no obligation to pay Publisher any payments with respect to (i) amounts generated based on Publisher’s breach or alleged breach of this Agreement, (ii) payments earned through invalid activity, as determined by ReachMobi in its sole discretion (which shall include, but not be limited to, (1) fraudulent or invalid clicks, impressions, installs, or other actions generated by any user, person, bot, automated program or similar device, (2) payable events originating from Publisher’s IP addresses or computers under Publisher’s control, or (3) clicks, impressions, installs, or other actions solicited by payment of money, the exchange of goods or services, false representation, or request or incentive for users to click, view, install, or take any other action). ReachMobi may withhold, chargeback, or keep all or a portion of any payment to Publisher to offset any portion of any payment previously tendered to Publisher in respect of any matter under this Section. Publisher understands that this may reduce the payment owed to Publisher.
- Publisher must notify ReachMobi in writing within the Payment Dispute Period if Publisher has any dispute relating to any payment under this Agreement. Failure to notify ReachMobi of a dispute relating to a payment before the end of the Payment Dispute Period shall result in a waiver by Publisher of any claim relating to such payment. In the event of a dispute regarding payments owed, Publisher will engage in good faith negotiations with ReachMobi in an attempt to resolve the dispute. The payments made under this Agreement are for use by Publisher only and may not be assigned, transferred or in any manner passed on to any third party unless expressly authorized in writing by ReachMobi. ReachMobi may offset from any payment under this Agreement any delinquent amount owed by Publisher, or any parent, subsidiary, or affiliate of Publisher, to ReachMobi.
- Notwithstanding anything in this Agreement to the contrary, (i) in the event that a payment owed to Publisher is less than fifty dollars ($50), ReachMobi may withhold payment until the total amount due is at least fifty dollars ($50), and (ii) in the event that the total payment amount owed to Publisher upon termination or expiration of this Agreement is less than fifty dollars ($50), Publisher understands and agrees that ReachMobi is not obligated to send Publisher such Payment and that ReachMobi may keep such as amount as an account closure administrative fee.
- Publisher is solely responsible for providing and maintaining accurate and current contact information with ReachMobi including, but not limited to, payment account and tax-related information. ReachMobi shall not be responsible for any delays in payments caused by incorrect banking information or other information supplied by Publisher. Publisher shall be solely responsible for the payment of, shall pay when due, and shall indemnify, defend, and hold harmless ReachMobi from and against, all applicable taxes associated with payments to Publisher under this Agreement (except for taxes assessed on ReachMobi’s income).
4. Termination; Survival.
Either party may terminate an IO or this Agreement upon at least two (2) business days’ prior written notice to the other party. Section 1, Section 2(c), Section 4, and Sections 6 through 11 shall survive termination or expiration of these Terms.
5. Representations and Warranties.
- Publisher represents and warrants that (i) it has the full right, power, and authority to enter into and perform under this Agreement; (ii) neither the execution, delivery, nor performance of this Agreement will result in a violation or breach of any contract, agreement, order, judgment, decree, rule, regulation or law to which it is bound; (iii) it shall comply with all applicable laws, rules and regulations in its performance of this Agreement; (iv) the Publisher Properties are owned and managed by Publisher or are owned and managed by a third party that has contracted with Publisher for Publisher to provide the Advertising Materials; and (v) the Publisher Properties and any Advertising Materials provided by Publisher for a Campaign, (1) do not and will not violate any applicable law or regulation or codes of practice, (2) do not and will not infringe intellectual property of any third party whether registered or not or registrable or not (including, but not limited to, copyright, database rights, patent, trade mark, trade secret or other intellectual property right), (3) do not and will not breach any duty towards or rights of any person, (4) are not and will not be false or misleading, (5) do not and will not contain any viruses, worms, Trojan horses, or any other contaminating or destructive feature, and (6) do not and will not contain or promote any content that is illegal, pornographic, gambling-related, hate-related, abusive, false, fraudulent, deceptive, misleading, obscene, defamatory, unethical, infringing upon intellectual property or other right of another, racially or ethnically objectionable, or otherwise objectionable to ReachMobi, in its sole discretion.
- ReachMobi represents and warrants that (i) it has the full right, power, and authority to enter into and perform under this Agreement; (ii) neither the execution, delivery, nor performance of this Agreement will result in a violation or breach of any contract, agreement, order, judgment, decree, rule, regulation or law to which it is bound; and (iii) it shall comply with all applicable laws, rules and regulations in its performance of this Agreement.
Publisher agrees not to (a) use any ReachMobi Confidential Information other than the purposes provided hereunder, or (b) disclose any ReachMobi Confidential Information without ReachMobi’s prior written consent.
7. Intellectual Property.
- ReachMobi or its applicable advertiser owns and retains all rights, title, and interest in and to the Advertising Materials. Title to and ownership of all intellectual property rights of any Advertising Materials provided by Publisher for a Campaign shall be granted to ReachMobi, and the creation of such Advertising Materials shall be treated as a “work for hire.” The Advertising Materials are protected by copyright, trademark, or other proprietary rights or laws. Except as expressly stated in this Agreement, ReachMobi does not grant any license, express or implied, to the Advertising Materials or any other right, title, or interest to any intellectual property including, without limitation, any of the ReachMobi Marks. ReachMobi reserves all right, title, and interest in and to its intellectual property. The ReachMobi Marks are the property of ReachMobi. Publisher shall not use the ReachMobi Marks for any purpose without the prior written approval of ReachMobi, and then only in accordance with instructions provided by ReachMobi.
- Publisher agrees that Publisher will not, will not attempt to, nor authorize or permit any third party to (i) reverse engineer, decompile, or disassemble any Application for any purpose, including, without limitation, for purposes of creating of derivative works or similar products, or (ii) use any ReachMobi intellectual property or ReachMobi Confidential Information to (x) build a product or engage in any service using similar ideas, features, functions or graphics as any ReachMobi Application, (y) copy any ideas, features, functions or graphics of any ReachMobi Application or Advertising Materials, or (z) consult with or advise any third party on how to engage in any of the foregoing.
8. DISCLAIMER OF WARRANTIES.
EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, REACHMOBI DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT AND INCLUDING ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, REACHMOBI SPECIFICALLY DISCLAIMS ANY WARRANTY REGARDING THE AMOUNT OF ANY PAYMENT OR PROFITS TO BE MADE TO PUBLISHER UNDER THIS AGREEMENT.
9. LIMITATION OF LIABILITY.
TO THE FULLEST EXTENT PERMITTED BY LAW AND NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN (A) REACHMOBI SHALL NOT BE LIABLE UNDER THIS AGREEMENT FOR ANY CLAIM FOR INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS), OR ANY CLAIM IN TORT, WHETHER OR NOT ARISING IN WHOLE OR PART OUT OF REACHMOBI’S ACT, OMISSION, FAULT, NEGLIGENCE, STRICT LIABILITY, OR PRODUCT LIABILITY (EVEN IF SUCH DAMAGES ARE FORESEEABLE OR REACHMOBI HAS BEEN ADVISED OR HAS CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES), AND (B) REACHMOBI’S AGGREGATE LIABILITY UNDER THIS AGREEMENT FOR ANY REASON WILL NOT EXCEED THE PAYMENTS PAID BY REACHMOBI TO PUBLISHER UNDER THE IO IN THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION AROSE. NO CLAIM MAY BE ASSERTED BY PUBLISHER AGAINST REACHMOBI MORE THAN TWELVE (12) MONTHS AFTER THE DATE OF THE CAUSE OF ACTION UNDERLYING SUCH CLAIM. EACH PARTY ACKNOWLEDGES THAT THE OTHER PARTY HAS ENTERED INTO THIS AGREEMENT RELYING ON THE LIMITATIONS OF LIABILITIES STATED HEREIN AND THAT THOSE LIMITATIONS ARE THE ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
- Publisher agrees to indemnify, defend, and hold harmless ReachMobi from and against any claims, liabilities, damages, costs and expenses (including reasonable attorney’s fees) arising out of third party claims concerning (i) the Publisher Properties, or (ii) Publisher’s breach of any term of this Agreement.
- ReachMobi agrees to indemnify, defend, and hold harmless Publisher from and against any claims, liabilities, damages, costs and expenses (including reasonable attorney’s fees) arising out of third party claims concerning ReachMobi’s breach of any term of this Agreement.
- Each party’s obligation to indemnify the other party hereunder will be conditioned upon the indemnified party promptly notifying the indemnifying party in writing of any such claim (however, failure of the indemnified party to so promptly notify the indemnifying party will not relieve the indemnifying party of its obligations hereunder, except to the extent that such failure to give notice materially prejudices the indemnifying party’s ability to defend such claim), promptly tendering the control of the defense and settlement of any such claim to the indemnifying party (at the indemnifying party’s expense and with the indemnifying party’s choice of counsel), and cooperating reasonably with the indemnifying party in defending or settling such claim including, but not limited to, providing any information or materials necessary for the indemnifying party to perform the foregoing. The indemnifying party will not enter into any settlement or compromise of any such claim, which settlement or compromise would result in any liability to the indemnified party without the indemnified party’s prior consent, which will not be unreasonably withheld. The indemnified party will have the right to participate in the settlement or defense of any such claim at its own expense.
- Force Majeure. Neither party shall be liable in damages for any delay or default in performance of this Agreement if such delay or default is caused by unforeseen conditions beyond the reasonable control of the delaying or defaulting party, including acts of God, restrictions by a government authority, wars, revolutions, terrorism, strikes (other than any strike by the delaying or defaulting party’s employees), fires, floods, earthquakes, embargoes, or degradation of telephone or other communications services, including but not limited to, degradation of all or part of an Internet backbone.
- Relationship of the Parties. ReachMobi and Publisher are independent contractors and neither party is an agent, representative, partner or joint venture partner of the other.
- Entire Agreement. This Agreement sets forth the entire agreement between the parties with respect to the subject matter hereof, and supersedes any and all prior and contemporaneous agreements, communications, and understandings (whether written or oral) between the parties with respect to their subject matter. No party has been induced to enter into this Agreement by virtue of, and is not relying upon, any representations or warranties not set forth in this Agreement, any correspondence or communication preceding the execution of this Agreement, or any prior course of dealing between the parties. If there is any conflict between the terms of these Terms and any IO, the terms of the IO will govern and control to the extent of the conflict.
- Choice of Law and Venue. This Agreement shall be interpreted and enforced in all respects under the laws of the State of Missouri, as applicable to contracts to be performed entirely within the State of Missouri. Any litigation arising out of this Agreement will be brought solely and exclusively in the state or federal courts located in Kansas City, Missouri, and the parties agree that jurisdiction and venue properly lie in such courts and waive any claim that a proceeding in any such court has been brought in an inconvenient forum.
- Waiver. Failure by a party to enforce at any time or for any period of time any provisions of this Agreement shall not be construed as a waiver of such provisions, and shall in no way affect a party’s right to later enforce such provisions. No provision or part of this Agreement or remedy hereunder may be waived except by a writing signed by a duly authorized representative of the party making the waiver.
- Severability. If any one or more of the provisions of this Agreement shall for any reason be held to be invalid, illegal or unenforceable by a court of law, the remaining provisions of this Agreement shall be unimpaired, and the invalid, illegal or unenforceable provision shall be replaced if possible by a mutually acceptable provision, which being valid, legal and enforceable, comes closest to the intention of the parties underlying the invalid, illegal or unenforceable provision.
- Miscellaneous. No amendment to this Agreement will be effective unless it is in writing and signed by both parties. Publisher may not assign or delegate this Agreement, in whole or in part, without the prior written consent of ReachMobi, and any such attempt in violation hereof is void. Except as specifically provided in this Agreement, notices shall be given in writing and shall be deemed given if delivered by commercial overnight carrier upon receipt thereof (with confirmation of receipt). Notices to ReachMobi must be sent to the attention of ReachMobi, Legal Department, 1010 N. Hancock Street, Philadelphia, PA 19123. The IO may be executed in counterparts, each of which shall be deemed an original, but all of which taken together shall constitute but one and the same instrument.