By accepting this Agreement (this "Agreement") and establishing an online account (the "Account") with Admush, a division of Broadspring, Inc. ("Admush"), the publisher identified below ("Publisher") acknowledges and agrees that it is forming a valid and binding agreement between Admush and the Publisher.
This Agreement governs Publisher's use of the Admush Widget (as defined below). Publisher must agree to this Agreement in order to use the Admush Widget or establish an Account. If Publisher uses the Admush Widget, establishes an Account and/or clicks to sign in and/or agree to this Agreement when presented, Admush will understand this as Publisher's acceptance of this Agreement and its agreement to all of the terms and conditions set forth herein. If you are accepting this Agreement on behalf of your employer or another entity, you represent and warrant that you have full legal authority to bind your employer or such other entity to this Agreement. If you do not have such authority, then you may not use the Admush Widget or the Account on behalf of your employer and you must discontinue all use of the Admush Widget immediately. This Agreement is effective as of the effective date set forth below (the "Effective Date").
NOW, THEREFORE, for good and valuable consideration, the receipt of which is hereby acknowledged, Admush and Publisher hereby agree as follows:
Admush Widget; Publisher Websites:
- Admush is a provider of an advertising network (the "Admush Network") whereby it manages the placement of advertisements made available on websites and/or software applications via its proprietary software and API (the "Admush Widget").
- Publisher desires to use the Admush Widget on the Publisher Websites designated from time to time within the Account (and the underlying web pages therein) (collectively, the "Publisher Websites") so as to enable visitors to the Publisher Websites to view the advertisements made available via the Admush Network.
- Publisher hereby represents and warrants that, (i) it owns, operates and/or controls the Publisher Websites, (ii) it owns or has valid rights in and to the content appearing on the Publisher Websites, (iii) it has the full right and authority to grant the rights granted hereunder; and (iv) the Publisher Websites and Admush's use of the Publisher Websites will not infringe upon the rights of any third party.
- Publisher and Admush acknowledge and agree that the Publisher Websites include those websites/URLs that are designated by Publisher from time to time during the term of this Agreement within the Account. Notwithstanding any portion of the foregoing to the contrary, Publisher acknowledges and agrees that Admush may (i) immediately suspend or terminate Publisher's use of, or remove, the Admush Widget, or (ii) require that Publisher immediately suspend or terminate Publisher's use of, or remove, the Admush Widget, on or from any given Publisher Website, or portion thereof, for any or no reason, in Admush's sole discretion, upon prior notice to Publisher.
The term of this Agreement shall commence on the Effective Date and terminate on the date that this Agreement is terminated by Publisher or Admush, as set forth in Section 6a below. The provisions of Sections 3, 4, 6, and 8 through 12 shall survive any expiration or termination of this Agreement.
Publisher shall receive seventy percent (70%) of all gross revenue actually received by Admush in a given calendar month from advertisements displayed on the Publisher Websites via the Admush Network and Admush Widget.
Additional Payment Terms:
- Reporting. Admush software and servers shall track all revenue and number of impressions on Publisher Websites each calendar month. The Publisher acknowledges and agrees that, subject to this Section 4, Admush's reports and statistics will be controlling for all purposes, including, without limitation, calculation of payments due under this Agreement. If and to the extent that Admush makes available to Publisher any real-time (or near real-time) online reporting, the information presented in any such online reporting shall at all times be subject to customary calendar month-end adjustments made by Admush in its sole discretion.
- Payment. Payments shall be made by Admush, with respect to a given calendar month in which the impression occurred or revenue was actually received, as applicable, no later than the 7 days after the end of such week. No payments will be issued for any amounts less than $20.00 USD; provided, however, that within 7 days after the end of the calendar week in which this Agreement is terminated or expires, Admush shall pay to Publisher all amounts payable under this Agreement, regardless of whether such amount is less than $20.00 USD. During the term of this Agreement, all un-issued earnings will rollover to the next pay period. Notwithstanding the foregoing, if Publisher has past due payments to Admush and is also an advertiser using the Admush Widget, Admush shall have the right to withhold or offset all payments due to Publisher until Admush receives all payments due to Admush.
- Withholding Payment. Notwithstanding any other provision of this Agreement, Admush shall not be liable to Publisher or any third party for and will not pay any revenue share payment or any payment for impressions, page views or click-throughs that Admush believes, in its sole discretion, is the result of means that are automated, deceptive, fraudulent or designed to generate clicks that are not the actions of human end users with an actual desire to view the content appearing on the respective page(s) (the "Fraudulent Activity"). Such Fraudulent Activity includes, but is not limited to, the use of robots or other automated tools or computer generated requests, repeated manual clicks, the involvement of pay-per-click programs or other arrangements to pay for impressions, page views or clicks, or sending to pages not reasonably relevant to the search query. Publisher shall take commercially reasonable steps to prevent such Fraudulent Activity by blocking IP addresses and/or Publisher's user accounts associated with such Fraudulent Activity. Publisher shall cooperate with Admush in any investigation of possible Fraudulent Activity, including access to Publisher's access logs and other customer and affiliate information, to the extent that such cooperation by the Publisher is commercially reasonable and not in violation of any agreement between the Publisher and a third party. If Admush determines the Publisher has knowingly engaged in Fraudulent Activity, then in addition to its other rights and remedies Admush may terminate this Agreement effective upon notice and withhold payment up to the amount generated through Fraudulent Activity.
- Taxes. Admush assumes no responsibility for paying any taxes on behalf of Publisher.
- No Guarantees. PUBLISHER UNDERSTANDS AND ACKNOWLEDGES THAT THERE IS NO GUARANTEE THAT ANY REVENUE (INCLUDING WITHOUT LIMITATION ANY MINIMUM LEVEL OF REVENUE) WILL BE GENERATED AS A RESULT OF THIS AGREEMENT. Admush UNDERSTANDS AND ACKNOWLEDGES THAT THERE IS NO GUARANTEE THAT ANY IMPRESSIONS (INCLUDING WITHOUT LIMITATION ANY MINIMUM LEVEL OF IMPRESSIONS) OF ADS WILL BE GENERATED AS A RESULT OF THIS AGREEMENT.
- Audit. Admush will maintain full, correct and complete books and records and supporting documentation pertaining to impressions served hereunder and payment therefor ("Admush Records") for a period of one year following the last delivery of impressions under this Agreement. During the term of this Agreement and for a period of one year thereafter, Publisher will be entitled, at its expense, either directly or through an independent accounting firm (an "Auditor"), to audit the Admush Records for the purpose of verifying all amounts payable or paid by Admush hereunder and compliance with this Agreement (an "Audit"). Audits will take place not more often than once per calendar year, during Admush's normal business hours upon not less than ten business days prior written notice, and will be conducted in a manner that does not unreasonably interfere with Admush's normal business operations. If an Audit uncovers any non-compliance with this Agreement, error in the Admush Records or discrepancy between the Admush Records and amounts paid to Publisher, Admush shall promptly correct such non-compliance, error or discrepancy, and the responsible party shall promptly pay, as applicable, any and all amounts necessary to reconcile such discrepancy. Anything herein to the contrary notwithstanding, if any Audit uncovers an underpayment by Admush that is greater than five percent of the amount actually due during the period audited, then Admush shall reimburse Publisher for the actual costs of such Audit.
- Admush shall use its reasonable efforts to make available to Publisher, via the Account, online tools that will allow Publisher to develop and design the Admush Widget for implementation by Publisher on the Publisher Websites. At Publisher's reasonable request, and subject to Admush's prior agreement, Admush may develop, design and deliver, or assist Publisher in developing and designing, the Admush Widget for implementation by Publisher on the Publisher Websites. Admush reserves the right to approve, or require modifications to, any implementation and/or placement of the Admush Widget by Publisher on the Publisher Websites, in each case, in Admush's sole discretion.
- Publisher grants Admush the right during the term of this Agreement (i) to interact with the Admush Widget on the Publisher Websites for the purposes of developing and serving advertisements; and (ii) to use Publisher's name and logo when referring to Admush's customers in Admush marketing materials. Publisher further agrees (i) not to take any action that might impede Admush's provision of the Admush; and (ii) to comply with the Federal Trade Commission's Disclosure Guidelines by including an attribution to Admush (in a form that has either been provided by Admush or approved by Admush) or a reference/statement that advertisements/links arising from the Admush Widget are "Sponsored" or "Promoted" or other similar reference (collectively, the "Ad Attribution"). Admush shall have the right to immediately remove the Admush Widget from, or otherwise suspend or terminate the Admush Widget on, the Publisher Websites if Publisher fails to include the Ad Attribution. In addition, Publisher agrees that in order to facilitate maintenance and optimization of the Admush Widget, Admush may at any time during the term of the Agreement conduct tests on how users interact with the Publisher Websites and the Admush Widget.
- Publisher agrees that it will not, either by itself or by authorizing or encouraging others to do so, directly or indirectly: (a) use, post or promote the Admush Widget in association with any material or content which is, or which may be reasonably considered to be illegal, unlawful or infringing under any applicable laws, pornographic, obscene, promotional of illicit drugs and drug paraphernalia, gambling-related, weapon or ammunition-related, violent, libelous, defamatory, indecent, seditious, offensive, invasive to privacy, abusive, threatening, harmful, vulgar, possibly capable of inciting racial hatred, discriminatory (racially, ethnically or otherwise), in breach of confidence or any other right of any third party, or lacking in necessary authorizations, approvals, consents or licenses; (b) engage in any action or practice that disparages or devalues Admush, the Admush Widget, the Admush Network, or the reliability, reputation or goodwill of any of them; (c) modify, change, edit, amend, truncate, alter, bypass or reorder any aspect of the ads on the Admush Widget; (d) conduct any Fraudulent Activity; (e) copy, crawl, index, cache or store any information derived by Admush, or contained in the Admush Widget; or (f) provide Admush any personally identifiable information concerning any user or other person. Admush shall have the right to immediately remove the Admush Widget from, or otherwise suspend or terminate the Admush Widget on, the Publisher Websites if Publisher fails to comply with the foregoing.
Rights to terminate Agreement:
- Publisher or Admush has the right to terminate this Agreement upon seventy-two (72) hours written notice to the other party for any or no reason. Upon any such termination, Publisher shall remove the Admush Widget from the Publisher Websites and all of the underlying webpages therein.
- Admush will be responsible for paying for all impressions served and all revenue received until the Admush Widget is removed from all of the Publisher Websites.
Publisher's right to reject individual ads:
Admush shall be solely responsible for determining, placing and displaying, in its sole discretion, advertisements on or within the Admush Network and Admush Widget on the Publisher Websites. Notwithstanding the foregoing, Publisher has the right to request, upon prior written notice, the removal of any individual link to sponsored content that is displayed within the Admush Widget, for any reason. These links will be removed within one (1) business day following Admush's receipt thereof.
Between the parties, Admush owns all intellectual property rights in the Admush Widget and Publisher owns all intellectual property rights in the Publisher Website.
- Publisher will defend, indemnify, and hold Admush and its affiliates and their respective officers, directors, shareholders, attorneys, representatives, contractors, and employees, and all of their respective successors, heirs, personal representatives and assigns, harmless from and against any and all claims, damages, liabilities, charges, recoveries, judgments, penalties, and costs and expenses (including reasonable attorneys' fees) that may be obtained against, imposed upon or suffered by Admush and/or its affiliates as a result of, arising from or relating to (i) any breach by Publisher of its representations, warranties or covenants contained herein, or (ii) a claim that the Publisher Websites or any of its content violates a third party trademark, trade secret, copyright, patent or privacy right.
- Except for that which Publisher indemnifies Admush, Admush agrees to defend, indemnify and hold harmless Publisher and its respective officers, directors, shareholders, attorneys, representatives, contractors, and employees, and their respective successors, heirs, personal representatives and assigns, harmless from and against any and all claims, damages, liabilities, charges, recoveries, judgments, penalties, and costs and expenses (including reasonable attorneys' fees) that may be obtained against, imposed upon or suffered by Admush and/or its affiliates as a result of a third party claim arising from or relating to (i) a claim that the Admush Widget violates a third party trademark, trade secret, copyright or privacy right and/or (ii) any breach by Admush of any statutory or regulatory obligation of any applicable jurisdiction or of any term of this Agreement.
- A party claiming indemnification pursuant to this Section 9 (the "Indemnified Party") shall promptly notify the party against whom such indemnification is brought against (the "Indemnifying Party") of any such claim of which it becomes aware and shall: (i) at the Indemnifying Party's expense, provide reasonable cooperation to the Indemnifying Party in connection with the defense or settlement of any such claim, and (ii) at the Indemnified Party's expense, be entitled to participate in the defense of any such claim. In no event shall the Indemnifying Party enter into any settlement or agree to any disposition of the indemnified claim(s), without the prior written consent of the Indemnified Party.
Limitation of Liability:
- TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, AND EXCEPT FOR PUBLISHER'S MISAPPROPRIATION OR INFRINGEMENT OF THE Admush WIDGET OR ANY OTHER INTELLECTUAL PROPERTY OF Admush, NO PARTY WILL BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY LOSS OF BUSINESS OR PROFITS, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR SPECIAL DAMAGES, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY ACKNOWLEDGES THAT THIS LIMITATION OF LIABILITY REFLECTS AN INFORMED, VOLUNTARY ALLOCATION BETWEEN THE PARTIES OF THE RISKS (KNOWN AND UNKNOWN) THAT MAY EXIST IN CONNECTION WITH THIS AGREEMENT. IN ADDITION, NO PARTY WILL BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS, OR FOR ANY LOST DATA OR CONTENT CAUSED BY ITS RESPECTIVE PRODUCTS, SERVICES OR WEB SITES.
- EXCEPT FOR PUBLISHER'S MISAPPROPRIATION OR INFRINGEMENT OF THE Admush WIDGET OR ANY OTHER INTELLECTUAL PROPERTY OF Admush, UNDER NO CIRCUMSTANCES SHALL ANY PARTY'S TOTAL LIABILITY OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY CLAIMS HEREUNDER, REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, INFRINGEMENT OR ANY OTHER LEGAL THEORY, EXCEED $1,000, PROVIDED, HOWEVER, THAT IN NO EVENT SHALL THE LIMITATION SET FORTH HEREIN LIMIT A PARTY'S RIGHT TO OBTAIN EQUITABLE RELIEF AGAINST THE OTHER PARTY. EACH PARTY ACKNOWLEDGES THAT THIS LIMITATION OF LIABILITY REFLECTS AN INFORMED, VOLUNTARY ALLOCATION BETWEEN THE PARTIES OF THE RISKS (KNOWN AND UNKNOWN) THAT MAY EXIST IN CONNECTION WITH THIS AGREEMENT.
- Confidentiality: This Agreement and its terms shall be maintained by the parties in strict confidence, and neither party shall disclose directly or indirectly any of the terms of this Agreement to any person or entity without the express written consent of the other party, or unless required by law or legal process, provided, however, that the parties expressly acknowledge and agree that this Agreement may be made available to any third party that has executed a nondisclosure agreement on terms consistent with the provisions hereof.
- This Agreement shall be governed by and interpreted in accordance with the laws of the State of California. The parties agree that any claims, legal proceedings, or litigation arising in connection with the Agreement will be brought solely in the state and federal courts located in Los Angeles, California, and the parties consent to the jurisdiction of such courts.
- This Agreement and any rights or obligations hereunder shall not be assigned or delegated without the prior written consent of the other party, which shall not be unreasonably withheld. Notwithstanding the foregoing, either party may assign this Agreement to an affiliate or to an acquirer of all or substantially all of such party's assets or voting securities, whether by merger, operation of law or otherwise, without the other party's prior written consent. The rights and obligations of each party hereunder shall inure to the benefit of its respective successors and assigns.
- This Agreement constitutes the entire agreement and understanding of the parties in respect of its subject matters and supersedes all prior understandings, agreements, or representations by or among the parties, written or oral, to the extent they relate in any way to the subject matter hereof. No amendment, supplement, modification or waiver of this Agreement shall be binding unless executed in writing by the party to be bound thereby. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provision hereof (whether or not similar), nor shall such waiver constitute a continuing waiver unless otherwise expressly provided. Whenever possible each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be or become prohibited or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity without invalidating the remainder of such provision or the remaining provisions of this Agreement. This Agreement may be executed in any number of counterparts, including facsimile or PDF copies thereof, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument.
- Publisher acknowledges and agrees that by clicking on the "I AGREE" button (or similar buttons or links as may be designated by Admush to show Publisher's acceptance of this Agreement), Publisher is entering into a legally binding contract. Publisher hereby agrees to the use of electronic communication in order to enter into contracts, place orders and create other records and to the electronic delivery of notices, policies and records of transactions initiated or completed through the Account.
In Witness Whereof, the Publisher has caused this Agreement to be entered into as of the Effective Date set forth below. By clicking on the "I AGREE" button below, the person providing the digital signature below represents and warrants that they are a duly authorized representative of Publisher, with valid authority to enter into and bind the Publisher to this Agreement.
Publisher: Example, Inc.
Name: John Doe
Effective Date: March 28, 2016