Publisher Terms and Conditions
1.RecitalsThe following terms and conditions (“Publisher Terms and Conditions”) govern the placement and delivery of advertising (“Ad”) as set forth in the Insertion Order signed by the Publisher, in relation to advertisers (“Advertiser”) and/or their associated agencies (“Agency”).
The Publisher Terms and Conditions and any associated Insertion Order or Insertion Orders are collectively referred to herein as the “Publisher Agreement”.
This Agreement is entered into by and between Polway Ltd, trading as Mobsuite, a company incorporated in Ireland and the company named as the Publisher in the Insertion Order (“Publisher”).
2. InvoicesInvoices will be sent by Mobsuite at such times as provided in the Insertion Order, or otherwise from time to time according to Mobsuite’s normal billing procedures. Creative and production charges relating to the creation of campaigns within Mobsuite’s proprietary video format (“Shutters”) and other formats will be invoiced at the earlier of completion of the work (when approved by the Publisher and/or the Advertiser) and the start date of the campaign. Creative and production work undertaken by Mobsuite will be agreed between the Publisher, the Advertiser (and/or its Agency) and Mobsuite before the work commences. The minimum Ad serving charge will be invoiced at the same time as the creative and production costs. Any additional impressions over and above the minimum charge will be invoiced monthly with then a final invoice at the end of the Month.
Invoices will be sent to the billing address or email address of the Publisher. Failure by Mobsuite for whatever reason to send a timely invoice will not affect Publisher’s obligation to pay for any Ads placed in accordance with the Insertion Order.
3. Terms of PaymentPayment is due within thirty (30) calendar days following the date of invoice, unless Mobsuite expressly agrees otherwise in the Insertion Order. All costs of collection, including reasonable legal fees and expenses, incurred by Mobsuite shall be borne by the Publisher. The Publisher shall pay all applicable sales taxes (VAT) which Mobsuite must apply to its invoices.
4. Payment LiabilityCredit terms will be granted subject to Publisher’s credit status based on information from reputable credit agencies. If Publisher’s credit is or becomes impaired, Mobsuite may require payment in advance.
5. Delivery of Advertising MaterialsUnless otherwise requested and agreed between the parties, the Publisher will, at its sole cost and expense, deliver or procure that the Advertiser and/or its Agency shall deliver all video, rich creative and/or other advertising materials required for any Ad (“Advertising Materials”) according to technical specifications provided by Mobsuite.
The Publisher may delegate such obligations to any Agency listed on the Insertion Order, but shall remain responsible for the Advertising Materials delivered. If the delivered Advertising Materials do not conform to Mobsuite ’s technical specifications or do not arrive timely enough to deliver the Ad on any agreed dates according to the Insertion Order, then Mobsuite, in its sole discretion, may: (a) reject such Ad and refund any applicable amounts paid in advance; or (b) postpone running such Ad until a reasonable period of time after (i) the non-conforming Advertising Materials are corrected, or (ii) the late-arriving Advertising Materials are received; in any case, Mobsuite may begin to charge the Publisher on the Insertion Order start date on a pro rata basis based on the full Insertion Order for each full day the Advertising Materials are not received.
6. Publisher Representations and WarrantiesThe Publisher is responsible for any liability arising out of or relating to any Ad and Advertising Materials provided by the Publisher hereunder and any material to which users can link through such Ad (“Linked Content”). The Publisher represents and warrants that no part of the supplied Ad, Advertising Materials or Linked Content will: (i) infringe on any third party’s copyright, patent, trademark, trade secret or other proprietary rights or right of publicity or privacy; (ii) violate any law, statute, ordinance or regulation, including, without limitation, laws and regulations governing export control, false advertising or unfair competition; (iii) be defamatory or libellous; (iv) be pornographic or obscene; or (v) contain viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines. The Publisher further represents and warrants that the product or service that is being promoted through any campaign hereunder is not the subject of any ongoing investigation by any local or central regulatory or quasi-regulatory authorities.
Further, the Publisher represents and warrants that it has the authority to sign any associated Insertion Orders and to be bound by these Terms and Conditions and that all of Publisher’s actions related to these Publisher Terms and Conditions and each Insertion Order will be within the scope of such Publisher, and Publisher will defend, indemnify, and hold harmless Mobsuite from claims, liabilities, losses, costs and expenses (including reasonable legal fees and disbursements) resulting from Publisher’s alleged breach of the foregoing sentence.
Mobsuite reserves the right to reject or remove the placement of any Ad (or any part of any associated Advertising Materials) or URL link embodied within an Ad at any time in the event Mobsuite determines in its sole reasonable discretion that such Ad or Linked Content does not meet its standards or comply with the Insertion Order or with any applicable law, rules, regulation, industry guidelines or policies, or other judicial or administrative order, or that such Ad (or associated Advertising Materials) or Linked Content is unlawful or inappropriate or may be likely to bring harm upon Mobsuite or the Advertiser or the Publisher or any other publishers. Mobsuite also reserves the right to demand that the Publisher obtains third party verification for any claims made in any Ad and to terminate this Publisher Agreement in the event that such verification is not promptly provided or is unsatisfactory, in Mobsuite’s sole discretion.
7. LicenseFor the term of this Publisher Agreement, and in connection with any associated Insertion Orders, the Publisher warrants to Mobsuite that it holds the appropriate licenses and rights to (a) use, perform and display any Ad (and associated Advertising Materials) delivered hereunder in accordance with the terms of the Insertion Order, and (b) use all associated Advertiser intellectual property in connection therewith. Further, Publisher grants permission that Mobsuite may use, perform and display Ads on its proprietary Shutters video player (“Shutters”).
The Publisher hereby acknowledges that any and all intellectual property rights which subsist in or arise in connection with Shutters anywhere in the world belong to Mobsuite and that Publisher shall have no right in or to Shutters save for the right to use Shutters as permitted by this Publisher Agreement.
Title to and ownership of all intellectual property rights of any Ad and associated Advertiser intellectual property shall remain with the Advertiser or its third party licensors.
The Publisher agrees that Mobsuite may, during the term of this Publisher Agreement and thereafter, include the Publisher’s name (including any trade name, trademark, service mark and logo) and any Ad provided hereunder on Mobsuite’s customer list and in its marketing materials and sales presentations.
Mobsuite will provide the Publisher and/or its appointed Agency listed on the Insertion Order, if any, with reports on performance and delivery of the Ads being placed according to the Insertion Order. Reporting on performance and delivery, including without limitation visits, sales or engagements of Ads is handled by Mobsuite and is based on its numbers and measurement processes as determined in its sole discretion. Such measurement processes will also be used for invoicing the advertising fees and/or ad serving specified under the Insertion Order.
9. DISCLAIMER OF WARRANTIESMOBSUITE PROVIDES ITS SERVICES, AS PERFORMED OR CONTEMPLATED HEREUNDER OR UNDER ANY INSERTION ORDER, ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTY OF ANY KIND AND WITHOUT ANY GUARANTEE OF CONTINUOUS OR UNINTERRUPTED DISPLAY OR DISTRIBUTION OF ANY AD. IN THE EVENT OF INTERRUPTION OF DISPLAY OR DISTRIBUTION OF ANY AD OR PROBLEMS WITH THE MOBSUITE SHUTTERS PLAYER, MOBSUITE’S SOLE OBLIGATION WILL BE TO RESTORE SERVICE AS SOON AS REASONABLY PRACTICABLE. MOBSUITE DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY OF FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE AND HEREBY EXPRESSLY EXCLUDES ALL WARRANTIES, REPRESENTATIONS, CONDITIONS AND ALL OTHER TERMS OF ANY KIND WHATSOEVER IMPLIED BY STATUTE OR COMMON LAW.
10. LIMITATIONS OF LIABILITYIN NO EVENT SHALL MOBSUITE BE LIABLE UNDER THIS PUBLISHER AGREEMENT WHETHER IN TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), CONTRACT, MISREPRESENTATION, RESTITUTION OR OTHERWISE FOR ANY LOSS OF PROFITS, DEPLETION OF GOODWILL AND/OR SIMILAR LOSSES OR LOSS OR CORRUPTION OF DATA OR INFORMATION, OR PURE ECONOMIC LOSS, OR FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL LOSS, COSTS, DAMAGES, CHARGES OR EXPENSES ARISING OUT OF OR IN CONNECTION WITH THIS PUBLISHER AGREEMENT INCLUDING ANY INSERTION ORDER (EVEN IF MOBSUITE WAS ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING). UNDER NO CIRCUMSTANCES SHALL MOBSUITE BE LIABLE TO THE PUBLISHER, ADVERTISER, AGENCY OR ANY THIRD PARTIES FOR AN AMOUNT GREATER THAN THE AMOUNTS RECEIVED BY THEM UNDER THE RELEVANT INSERTION ORDER IN RELATION TO WHICH SUCH LIABILITY MAY ARISE. IN LIEU OF REFUND, MOBSUITE SHALL BE PERMITTED TO CAUSE THE PLACEMENT OF “MAKE-GOOD” ADVERTISING, IF THE “MAKE-GOOD” ADVERTISING IS PROVIDED WITHIN A REASONABLE PERIOD OF TIME AFTER THE LIABILITY HAS ACCRUED.
11. TerminationAt any time prior to the serving of the first impact of the Registration, the Publisher may cancel the Insertion Order with 30 days prior written notice, without penalty. For clarity and by way of example, if the Publisher cancels the Registration 15 days prior to the serving of the first impact, the Publisher will only be responsible for the first 15 days of the Registration Upon the serving of the first impact of the Registration, the Publisher may cancel the IRegistration for any reason, without penalty, by providing Mobsuite written notice of cancellation which will be effective after the later of: (i) 30 days after serving the first impact of the Registration; or (ii) 14 days after providing Mobsuite with such written notice. In addition to any other remedies that may be available to it, Mobsuite may terminate the Publisher Agreement in the event of any breach by the Publisher of the representations and warranties contained herein or non-performance of any of its obligations hereunder. Notwithstanding anything to the contrary contained herein, these Publisher Terms and Conditions shall continue in effect so long as there remains an active Registration. Upon expiration or termination of this Publisher Agreement or in relation to any terminated or completed Insertion Order, any provisions of the Publisher Agreement which by its terms are intended or reasonably expected to survive, shall survive termination.
12. IndemnityThe Publisher named in the Registration agrees to indemnify, defend, and hold harmless Mobsuite and its directors, officers, agents and representatives from any claims, liabilities, losses, costs and expenses (including reasonable legal fees and disbursements) resulting from or arising out of (i) the acts or omissions or breach of this Publisher Agreement by the Publisher (including Publisher’s Representations and Warranties set forth above), (ii) the content or subject matter of any Ad or Advertising Materials, or (iii) any violation of any applicable laws, rules, regulations, industry guidelines or policies, including without limitation relating to any end user or other data that it may collect or have collected in relation to the Ads placed according to the Insertion Order.
Mobsuite agrees to indemnify, defend, and hold harmless the Publisher for any claims, liabilities, costs and expenses (including reasonable legal fees) made against the Publisher by a third party or parties as a result of acts of gross negligence or wilful misconduct by Mobsuite.
13. Confidential information“Confidential Information” shall mean any and all oral or written information that is identified as confidential and is provided by one party to the other. Neither the Publisher nor Mobsuite shall disclose or use the other party’s Confidential Information for any purpose other than the purposes contemplated by this Publisher Agreement, unless such disclosure or use is allowed by written permission of the other party. Notwithstanding any other provisions hereof, either party may disclose the other party’s Confidential Information to the extent required by applicable law, but only after five (5) business days prior written notification to the other party of such required disclosure.
Upon termination, cancellation or expiration of this Publisher Agreement for any reason, or upon request by either party, all Confidential Information of the requesting party, together with any copies thereof, shall be returned to that party or certified destroyed, except that the parties may retain any electronic versions of any Confidential Information of the other party solely for archival or litigation purposes. The Publisher’s Confidential Information shall remain the property of the Publisher, and Mobsuite’s Confidential Information shall remain the property of Mobsuite.
14. MiscellaneousThis Publisher Agreement, including these Publisher Terms and Conditions and associated Insertion Order(s) and Registration sets forth the entire agreement of the parties and supersedes any and all prior oral or written agreements or understandings between the parties as to the subject matter hereof. Only a written addendum signed by both parties may change this. This Publisher Agreement will be governed and construed in accordance with the laws of Ireland. The Publisher and Mobsuite agree to submit to the exclusive jurisdiction of the courts of Ireland. If any provision of this Publisher Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The Publisher may not assign this Publisher Agreement without the prior written consent of Mobsuite. Mobsuite may freely assign this Publisher Agreement in connection with any corporate reorganization, share purchase, merger, or sale of all or substantially all of the business and assets associated with the subject matter of the Publisher Agreement. The parties’ rights and obligations will bind and inure to the benefit of their respective successors, heirs, executors and joint administrators and permitted assigns. The parties to this Publisher Agreement are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is intended or created by this Publisher Agreement.
This Publisher Agreement will be brought into effect by the Registration and may be executed in counterparts.