Service Agreement
This Publisher Agreement (the “Agreement”) is a legal document between you (“Publisher”) and Adopt Media, as of Thursday, July 10, 2014 (the “Effective Date”).
Publisher Adopt Media
Contact: Chief Operating Officer
Company: Adopt Media,
Address: 11 Tiomkin Street
Telephone: +1.650.422.3391
Email: support@Adopt Media.com
1. Service. Adopt Media will enable the provision of commercial in-text advertisement links on Publisher”s Site(s) (the “Service”) by placing Java Script tags within Publisher”s Site(s).
2. Publisher Site Approval. Publisher may implement the Service only in such websites listed in Schedule A attached hereto. Any change or amendment to Schedule A must be done in writing and approved in advance by Adopt Media.
3. Payment. Publisher will receive as a payment 70% Revenue Share of the Gross Revenues (as defined below) subject to the terms of this Agreement.
4. Terms and Conditions. The terms and conditions and definitions detailed below in sections 5 through 15 are included as a binding part of this Agreement.
IN WITNESS WHEREOF, the parties have caused this Publisher Agreement to be executed as of the Effective Date by their duly authorized representatives.
(“PUBLISHER”)
Sign:
Name:
Title:
Date: Thursday, July 10, 2014
5. Payment Terms and Definitions.
5.1. Definitions.
a. “Gross Revenue” means the total revenue received by Adopt Media resulting from (i) Advertiser payments made directly to Adopt Media by Advertisers for Qualified Clicks, or (ii) payments made directly to Adopt Media by its third party business partners for the average monthly price per click for Qualified Clicks for categories of advertising on designated Publisher Sites; in both cases of (i) and (ii) after deducting any taxes or fees that Adopt Media is required to pay or collect in relation to the supply of Services, including but not limited to any credit card processing fees, bad debt and charge-backs, commissions or discounts allowed or paid to advertising agencies or sales staff, refunds to Advertisers and third party business partners and other payments to third parties if applicable.
b. “Qualified Clicks” means a click that occurs when a bona fide Internet user clicks on a commercial in-text link that appears in one of the websites listed in Schedule A, and is brought to an Advertiser’s website. Qualified Clicks do not include clicks that result from a robot, spider, software, or other mechanical, artificial or fraudulent means as reasonably determined by Adopt Media, or clicks made by a person who is paid or deceptively motivated to click on such links.
c. “eCPM” means the price per one thousand (1,000) impressions of pages within Publisher Site(s), when taking into account pages with actual Adopt Media Service links (“Impressions”); for the avoidance of doubt, the following pages will not be counted as Impressions: (1) pages with technical limitations that prevent marking Adopt Media Service links within them, including but not limited to pages with too little content to mark and pages where most content is hyperlinks; and (2) pages with other in-text ads in them. The eCPM will be calculated on a monthly basis, dividing the total monthly sum of Publisher’s share of the Gross Revenue by the number of Impressions divided by one thousand (1,000).
d. “Service” means the provision of commercial in-text advertisement links on Publisher’s Site(s) by placing Java Script tags within Publisher’s Site(s) and of any other type of contextual advertisements provided by Adopt Media, including but not limited to units of InTag links and InFold (all of which are included herein as part of the general term “in-text advertisement links”).
e. “Revenue Share” means the percentage of the Gross Revenues to be paid to Publisher. Notwithstanding anything else herein, the Revenue Share set in Section 3 above will only refer to Qualified Clicks on in-text ad units and not to Qualified Clicks on other types of ads, such as Qualified Clicks on InTag, InFold or any other (“Other Qualified Clicks”), provided as part of the Service. For any such Other Qualified Clicks, Publisher will receive as payment a percentage of the Gross Revenues that will be determined by Adopt Media in its sole discretion. This part of the Revenue Share percentage shall vary between ad units and from time to time.
5.2. Publisher will be entitled to review a finalized revenue statement for the payment due to Publisher for the immediately preceding month fifteen (15) days after the end of each calendar month within Publisher’s web account (see Reporting). Adopt Media will (directly or through a third party payment processor) pay Publisher in accordance with the revenue statement, forty five (45) working days following the end of the calendar month for which payment is due if the earned balance in the Publisher’s account equals or exceeds the Payment Threshold. “Payment Threshold” means US$ 50 per month. Once the earned balance exceeds the Payment Threshold, Adopt Media will pay (directly or through a third party payment processor) the entire balance amount subject to the other provisions of this Agreement.
Publisher acknowledges and agrees that Adopt Media may, at its sole discretion, discount, credit back or accrue a credit against Gross Revenues in circumstances in which it can demonstrate that what appeared to be a Qualified Click was in fact not a Qualified Click. It is hereby expressly agreed by the Publisher that payment processing may be made on behalf of Adopt Media by a third party payment processer, and for such purpose Adopt Media may disclose Publisher’s payment instructions and personal details and/or redirect the Publisher from its website to such third party payment processor’s website.
5.3. All payments due under this Agreement are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including without limitation VAT) (collectively, “Taxes”). Publisher will be responsible for payment of all Taxes and any related interest and penalties resulting from any payments made hereunder.
5.4. All payments due under this Agreement will be paid to Publisher through the payment method chosen by Publisher from the payment methods available on the Adopt Media website either directly or through a third party to which Adopt Media will provide the payment details.
6. Reporting. The Gross Revenue payable to Publisher will be based on Adopt Media’ reporting system. Adopt Media will provide Publisher with a login ID to a reporting interface that will enable Publisher to view an estimate of the Gross Revenues earned under this Agreement. Publisher acknowledges and agrees that the Gross Revenue amounts are based solely on Adopt Media’ final reported numbers and on no other source.
7. Term, Termination and Renewal.
7.1. The term of the Agreement will commence on the Effective Date, and subject to termination as provided below, will remain in effect for a period of thirty (30) days thereafter (“Trial Term”). During the Trial Term either party may terminate the Agreement by written notice and such termination will take effect immediately. Upon completion of the Trial Term, the Agreement will automatically renew and will remain in force for successive twelve (12) month period each (together, “Agreement Term”). During the Agreement Term, either party may terminate this Agreement for any reason at any time upon one (1) business day prior written notice. Either party may terminate (and in case of Adopt Media – Adopt Media may also choose, in its sole discretion to suspend the Publisher account, without terminating the Agreement) the Agreement immediately at any time in the event of (1) a breach by the other party of any material provision of the Agreement that remains uncured one (1) day after the breaching party’s receipt of written notice of such breach, or (2) the other party discontinues its business or is dissolved or liquidated. If Publisher disables or does not implement the Adopt Media Service without the appropriate notice of termination outlined above, such action will be deemed as a material breach of the Agreement and in addition to other remedies Adopt Media reserves the right to revoke the Publisher’s account and withhold any and all outstanding payments (including any earned balance) due to Publisher under this Agreement.
7.2. Upon expiration or termination of the Agreement: (i) all undisputed payments that have accrued prior to expiration or termination will be payable in full within forty five (45) days thereof; provided that in the event the balance of the account upon expiration or termination of the Agreement is below the Payment Threshold, any sums accrued in the Publisher’s account will remain unpaid and Publisher, by accepting this Agreement, consents to such holdback; (ii) all rights and licenses of Publisher under the Agreement will terminate; and (iii) Adopt Media’ obligations relating to the Software and Service will terminate.
Notwithstanding the foregoing, without limiting rights and remedies available to Adopt Media, Adopt Media, in its sole discretion, may withhold payment to Publisher at any time during the terms of this Agreement or thereafter, if Publisher breaches the Agreement (including if Publisher commits fraud against Adopt Media and/or if Publisher gave incorrect personal details and/or invalid billing information).
8. License to Use Commercial InText Links Technology and Ownership. Adopt Media hereby grants to Publisher a non-exclusive, non-transferable, non-sublicensable license to use the Commercial InText Links software (“Software”), provided by Adopt Media, that enables the Service to run on the Publisher Sites(s), subject to the terms and conditions of this Agreement and the terms and conditions provided to Publisher with the Software. Adopt Media expressly reserves all rights in and to the Software not expressly granted herein. Title to the Software shall not pass to Publisher in any circumstances. Publisher will not copy, translate, decompile, disassemble, reverse engineer or otherwise reproduce or modify, add to or otherwise change the Software, without Adopt Media’ specific written authorization.
9. Non Disclosure. This Agreement as a whole, and any of the terms mentioned in it are confidential and cannot be disclosed to any third party without an explicit written consent by the other side, provided that it is hereby agreed by the Publisher that Adopt Media may disclose the terms of this Agreement to any third party payment processor on its behalf.
10. Representations and Warranties. Publisher represents and warrants that (a) all of the information provided by Publisher to Adopt Media, including without limitation, payment instructions, billing information, and personal details, is correct and current; and (b) Publisher is the owner of each Publisher Site or that Publisher is legally authorized to act on behalf of the owner of such Publisher Site(s) for the purposes of this Agreement; and (c) Publisher has all necessary right, power and authority to enter into this Agreement and to perform the acts required of Publisher hereunder. In case Publisher is an individual it also represents that he/she is at least 18 years old or the legal age of majority in the jurisdiction in which Publisher reside. Publisher further represents and warrants that each Publisher Site and any material displayed therein: (i) complies with all applicable laws, statutes, ordinances and regulations; (ii) does not breach and has not breached any duty toward or rights of any person or entity including, without limitation, rights of intellectual property, publicity or privacy, or rights or duties under consumer protection, product liability, tort, or contract theories; and (iii) is not pornographic, hate-related or otherwise violent in content. Adopt Media MAKES NO WARRANTY, EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION WITH RESPECT TO ADVERTISING AND OTHER SERVICES, AND EXPRESSLY DISCLAIMS THE WARRANTIES OR CONDITIONS OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE.
11. No Guarantee. Adopt Media makes no guarantee regarding the level of impressions of, or clicks on any ad, the timing of delivery of such impressions and/or clicks, and the relevancy of the commercial in-text links or the ads shown under this Agreement. For the avoidance of doubt, Adopt Media makes no guarantee that any commercial in-text links will appear on any page of the Publisher Site(s), and consequently there is no guarantee that this Agreement will generate any revenue for the Publisher.
12. Publicity and Collection of Information. Publisher agrees that Adopt Media may use Publisher name and logo in presentations, marketing materials, customer lists, financial reports and website listings of customers. Publisher also agrees that Adopt Media may use its tags to enable third parties to collect information about the use of Publisher Site(s) through the use of cookies, web beacons and other similar technologies, including but not limited to third parties that collect statistical information in order to provide analytical services and third parties that collect non-personally identifiable information in order to provide targeted advertisements.
13. Indemnification. Publisher agrees to indemnify and hold harmless Adopt Media and its directors, officers, employees, agents and authorized representatives from and against any costs, losses, liabilities and expenses (including court costs and reasonable attorneys’ fees) that Adopt Media may suffer, incur or be subjected to by reason of any legal action, arbitration or other claim by a third party arising out of or as a result of a breach of Publisher’s representations, warranties and agreements made hereunder.
14. Limitation of Liability. THE SERVICE IS MADE AVAILABLE TO PUBLISHER “AS IS” AND WITHOUT ANY WARRANTY OR REPRESENTATION, WHETHER EXPRESSED OR IMPLIED, OF ANY KIND INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABLE QUALITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR THOSE ARISING BY LAW, STATUTE, USAGE OF TRADE, OR COURSE OF DEALING. ALTHOUGH Adopt Media WILL MAKE REASONABLE COMMERCIAL EFFORTS TO ENSURE THAT THE RELEVANT ADS ARE SERVED TO END USERS VISITING PUBLISHER PAGES, PUBLISHER UNDERSTANDS AND AGREES THAT SUCH PROCESS IS BEING AFFECTED BY AUTOMATED MEANS, AND Adopt Media IS NOT RESPONSIBLE, NOR DOES IT GIVE ANY WARRANTY OR REPRESENTATION AS TO THE OUTCOME OF SUCH PROCESS. Adopt Media DOES NOT GUARANTEE THAT IT WILL HAVE RELEVANT ADS FOR ANY GIVEN PUBLISHER PAGE AND Adopt Media DOES NOT WARRANT OR GUARANTEE THAT THE SERVICE OR THE OPERATION THEREOF WILL BE UNINTERRUPTED OR WILL MEET PUBLISHER’S NEEDS. NEITHER PARTY WILL BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR OTHER SIMILAR DAMAGES AND ANY LOSS OF PROFITS, LOSS OF REVENUES, LOSS OF SAVINGS, LOSS OF CLIENTELE, LOSS OF USE OR LOSS OR CORRUPTION OF DATA, WHETHER UNDER TORT, CONTRACT OR OTHER THEORIES OF RECOVERY, EVEN IF SUCH PARTY WAS OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND IN NO EVENT WILL Adopt Media’ LIABILITY ARISING OUT OF THIS AGREEMENT FROM ANY CAUSE OF ACTION WHATSOEVER WILL EXCEED THE AGGREGATE AMOUNTS ACTUALLY PAID UNDER THIS AGREEMENT TO PUBLISHER DURING THE THREE (3) MONTHS PRIOR TO THE DATE THE CAUSE OF ACTION AROSE. Adopt Media is not responsible for any web sites that can be linked to from the ads or for the results of any act or omission of any Advertiser or any other Adopt Media provider.
15. Miscellaneous. (A) Any notice by Adopt Media required or permitted hereunder may be posted by Adopt Media on its website, sent to Publisher by email or by mail, as Adopt Media may elect. Any notice by Publisher required or permitted hereunder shall be sent to Adopt Media by mail. (B) This Agreement constitutes the entire agreement of the parties concerning the subject matter hereof. (C) Adopt Media may change the terms of this Agreement from time to time, in its sole discretion, upon posting notice at http://www.Adopt Media.com/. Publisher’s continued use of the Service shall constitute its consent to any changes made. If Publisher does not agree to the new or different terms, it should provide a written notice to Adopt Media to such extent, and the Agreement shall immediately terminate on the date Adopt Media receives such notice. (D) Neither party may assign this Agreement, nor any right under or obligation pursuant to this Agreement, without the other party’s prior written consent which shall not be unreasonably withheld, except that Adopt Media may assign this Agreement and/or its rights and obligations under this Agreement within the context of its merger, acquisition or other transaction of similar nature. (E) This Agreement will be governed by and construed in accordance with the substantive laws of the State of Delaware without regard to its conflict of law principles. In any dispute under this Agreement, each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts in Delaware. (F) No waiver by a party of any breach of any provision of this Agreement will constitute a waiver of any other breach of that or any other provision of this Agreement. (G) Each party will perform its obligations as an independent contractor and will be solely responsible for its own financial obligations. (H) This Agreement will not create a joint venture, partnership, or principal and agent relationship between the parties.