AppMonet Publisher Agreement
This Publisher Agreement (the “Agreement“) sets forth the legally binding terms between the client and Monet Engine Inc. for your use of the Services (as defined below), to the extent we make them available to you as the owner or operator (“Publisher“) of one or more websites, mobile applications, blogs and/or other properties approved by us (collectively, “Publisher Sites“). By accessing and using the Services, you agree to comply with and be bound by this Agreement. If we offer any additional Services in the future that are governed by additional terms, we will make such additional terms available to you and, unless otherwise provided, such additional terms will be incorporated herein. As used in this Agreement, “you” or “Publisher” means the individual or entity using the Services (and/or any individual, entity, or successor entity, agency or network acting on your behalf), “we,” “us” or “Monet Engine” means Monet Engine Inc. and “parties” means you and Monet Engine.
1. Services. We provide Publishers with tools, technology and services to operate a real-time, data driven automation platform for advertising, data management and yield optimization, facilitating the integration of third party providers of online advertising and data on one or more of the Publisher Sites.
2. Account. Your use of the Services is subject to your creation and our approval of an account (a “Account“). By submitting an application to use the Services, if you are an individual, you represent that you are at least 18 years of age.
3. Authorization. You may request to add any of your websites, mobile applications, blogs and/or other properties to the Services. We may, in our discretion, reject your request and/or remove any of your Publisher Sites from the Services at any time. You agree to provide any additional information regarding your Publisher Sites and proposed Publisher Sites that we may reasonably request.
4.1 Payments. Payment terms will be specified in the “Payment Terms” section of your Order(s) (the “Payment Terms”). You are responsible for providing complete and accurate billing and contact information to us, and notifying us promptly of any changes to such information. In accordance with the Payment Terms, (a) we will pay you amounts due for your sale of Ad Inventory in US Dollars through the Services by the applicable payment date; (b) you will pay us amounts due for your use of our Services in US Dollars by the applicable payment date. We reserve the right to withhold outstanding payments to you for any Ad Inventory we reasonably determine violates this Agreement.
4.2 Taxes. Charges for Services do not include any taxes or government charges levied by or due to any duly authorized taxing authority and you will, without offset against or deduction from amounts otherwise owed by you hereunder, pay any such taxes and government charges derived from or imposed on transactions through the Services, including sales, value-added, goods and services, use, transfer, gross income based withholding, privilege, excise and other taxes and duties. You must promptly provide us with completed and accurate tax forms and all other similar materials we require, which may include tax form W-8 or W-9 and sourcing statement if applicable.
5. Restrictions. You will not (i) use the Services except as expressly authorized herein; (ii) except as permitted by applicable law, copy, reproduce, modify, distribute, damage, interfere with, disassemble, decompile, reverse engineer or create derivative works of the Services; (iii) breach, disable, tamper with or interfere with the proper working of the Services or develop or use (or attempt) any workaround for any security measure related to the Services; or (iv) place any Content (as defined below) on any of your Publisher Sites that (a) infringes or misappropriates a third party’s intellectual property or other proprietary rights, (b) breaches a third party’s rights or privacy or publicity or (c) contains or promotes Objectionable Activity (as defined below). “Objectionable Activity” means any content or activity that is (w) pornographic, illegal, fraudulent, false, deceptive, misleading, libelous, defamatory or threatening, (x) racist, hate speech or bullying, (y) adware, malware, spyware or any other malicious code or drive-by download applications and/or (z) “spam,” mail fraud, pyramid schemes, investment opportunities, or advice not permitted by law. “Content” means any blog entries, bookmarks, postings, messages, opinions, text, files, links, images, photos, video, sounds, works of authorship, feedback, bug reports and other materials available on any of your Publisher Sites.
6. Data. As between you and Monet Engine, you will own your Company Data. “Company Data” means your Bidding/Targeting Terms and the data from your Advertising Transactions. You hereby grant us the right to use and disclose Company Data (a) as aggregate Service statistics; (b) to provide, manage, maintain, and enhance the Services for You (including disclosure of impression-level information to the relevant counterparties in your Advertising Transactions); (c) as elected by you in connection with your use of the Services (including, to third parties whose services you elect to use); and (d) to enforce our rights under this Agreement.
7. Proprietary Rights. We grant you the non-exclusive right to access and use our Services to conduct Advertising Transactions, subject to the terms and conditions of this Agreement. Each Party owns and retains all right, title and interest in and to all of its intellectual property, and no rights are granted to the other Party’s intellectual property except as expressly set forth in this Agreement. Our intellectual property includes all aspects of our technology, branding, and Services, including any software or applications developed or created by us (or on our behalf) that can access or communicate with your servers or systems using our or your API specifications. You grant to us and our Affiliates a worldwide, perpetual, irrevocable, royalty-free right to use and incorporate into the Services any suggestion, input, enhancement request, recommendation, correction, specification, or other feedback provided by you relating to the operation of the Services.
9. Confidentiality. A Party receiving Confidential Information may only use Confidential Information to exercise its rights and fulfill its obligations under this Agreement and will take reasonable measures to avoid unauthorized disclosure or misuse of the Confidential Information, including, but not necessarily limited to, taking such security precautions as it takes to protect its own Confidential Information. The receiving Party will not disclose Confidential Information, except (a) to its and its Affiliates’ employees, Subcontractors, or professional advisers who have a legitimate need to know the Confidential Information and are legally bound to keep it confidential, and (b) as required to be disclosed by applicable Law, or judicial or other governmental or regulatory order. The fact that you are a customer of Monet Engine and the Ad Inventory you make available or are expected to make available for sale through Monet Engine is not Confidential Information. The terms of this Agreement are Confidential Information belonging to both Parties.
10. Term; Termination; Suspension. This Agreement will be effective from the Effective Date and continue until the Order(s) has terminated. Either Party may terminate this Agreement, including the Order(s), immediately on notice to the other Party that it is in material breach of this Agreement with respect to such Service; provided however that if the breach is capable of cure, the breaching Party will have thirty (30) days from the notice date to cure the breach to the non-breaching Party’s reasonable satisfaction. We may immediately suspend your use of the Services without notice if, acting in good faith, we determine you are in breach of any service policies.
11. Representation and Warranties. Each of Publisher and Monet Engine represent and warrant to the other party that (i) it holds all rights necessary to perform its obligations hereunder and (ii) all information provided by it to the other party is complete, correct and current. You further represent and warrant that (a) you own or are otherwise authorized to use, and are solely responsible for, the Content posted on any of your Publisher Sites and (b) you hold, and hereby grant to us, all rights necessary for us to perform our obligations hereunder.
12. Indemnification. Each party will indemnify, defend and hold harmless the other party and its agents, affiliates and licensors from any and all losses, claims, damages, liabilities and expenses including reasonable costs of investigation and reasonable attorneys’ fees (“Claims“) arising from third-party claims or any government or industry investigation, arising out of or related to (a) breaches of this Agreement or allegations thereof; (b) gross negligence, willful misconduct or fraudulent actions; (c) violation of a third party intellectual property right; or (d) violation of any applicable law, rule or regulation including without limitation data privacy laws.
13. Limitation of Liability. NEITHER PARTY WILL BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR OTHER SIMILAR DAMAGES WHETHER UNDER TORT (INCLUDING NEGLIGENCE), CONTRACT, OR OTHER THEORIES OF RECOVERY, EVEN IF ANY SUCH PARTY WAS OR SHOULD HAVE BEEN AWARE OR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCLUDING THE PARTIES INDEMNIFICATION OBLIGATIONS UNDER SECTION 12, BREACH OF CONFIDENTIALITY OR INTELLECTUAL PROPERTY INFRINGEMENT, IN NO EVENT WILL EITHER PARTY’S LIABILITY ARISING OUT OF THIS AGREEMENT FROM ANY CAUSE OF ACTION WHATSOEVER EXCEED THE GREATER OF (I) AGGREGATE AMOUNTS PAID OR OWED UNDER THIS AGREEMENT BY APPMONET TO PUBLISHER DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE THE CAUSE OF ACTION AROSE OR (II) ONE HUNDRED THOUSAND DOLLARS ($100,000).
14. Publicity. Each Party grants the other the limited right to use the other Party’s name and logo on customer lists and informational materials. Neither Party will issue any press releases or similar broad distribution marketing communications concerning this relationship without the prior written consent of the other Party, which will not be unreasonably withheld or delayed.