Moasis Global LLC (“Moasis”) and Advertiser enter into this Advertiser Agreement (“Agreement”) to establish the terms and conditions by which Advertiser may display advertisements (“Ads”) on Publisher websites and Developer applications made available by Moasis (individually, a “Site” and, collectively, the “Moasis Network”) through utilization of the services and software provided by Moasis (collectively, the “Services”). Unless otherwise indicated, all capitalized terms shall have the meanings ascribed to them in this Agreement.
1. MOASIS SERVICES
2. PAYMENT AND CREDIT
Advertiser shall be responsible for all charges resulting from Advertiser’s placement of Ads on the Moasis Network, and shall pay all charges in U.S. Dollars or in such other currency as agreed to in writing by the parties. Payment shall be made, and credit extended, in accordance with the terms set forth immediately below: (a) mFlyer Pre-Paid Program for Small Businesses. At the time Advertiser registers with Moasis as an mFlyer customer, Advertiser shall provide credit card information requested by Moasis so that Moasis may charge such credit card for all payments due Moasis under this Agreement, and Advertiser hereby authorizes Moasis to do so. Advertiser may obtain pricing information concerning the purchase of mFlyers at the mFlyer Price page found on the Moasis Website. Moasis may change the prices charged for the mFlyer at any time, but such change shall not affect any of Advertiser’s prior purchases. Moasis shall use good faith efforts to notify Advertiser of any price changes, but Advertiser is responsible for reviewing the Price page from time-to-time to ascertain the prices then charged by Moasis. Any purchase of mFlyers will require prepayment in full. Advertiser will receive prompt notice whenever Moasis charges Advertiser’s credit card for any such purchase. Moasis will not issue to Advertiser any refunds or credits if Advertiser fails to use all of the mFlyers purchased. (b) Direct Brand Advertising; Agency Advertising. At the time Advertiser registers with Moasis, if Moasis so requests, Advertiser shall provide Moasis credit card information so that Moasis may charge such credit card for all payments due Moasis under this Agreement, and Advertiser authorizes Moasis to do so. Payments will be due during each consecutive thirty (30)-day period (the “Billing Period”) as Advertiser reaches the specified charge thresholds indicated in the Moasis FAQs found on the Moasis Website (each, a “Charge Threshold”). The beginning Charge Threshold in any Billing Period will be the Charge Threshold next following the Charge Threshold reached in the immediately preceding Billing Period, except that once the second highest Charge Threshold is reached in any Billling Period, the highest Charge Threshold shall exclusively apply in each subsequent Billing Period. When Advertiser reaches each Charge Threshold, Moasis will charge Advertiser’s credit card for such amount. If the next applicable Charge Threshold is not reached during the month, Moasis will charge Advertiser’s credit card for any amount due at the end of such month. Advertiser will receive prompt notice whenever Moasis charges Advertiser’s credit card for any amount. Moasis will not issue an invoice to Advertiser for Ads served by Moasis. If approved by Moasis, an Advertiser may elect to pay by check or via wire transfer following receipt of a monthly invoice from Moasis (an “Invoice). Each Invoice shall be paid within thirty (30) days after the date of the Invoice. An Advertiser representing one or more Principals will receive an Invoice for each of such Principals and, if Advertiser’s payment encompasses more than one Principal Invoice, Advertiser shall indicate, in writing, the amount allocated to each Principal. Late payments will bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less). Charges are exclusive of taxes. Advertiser is responsible for and shall pay any sales, personal property, use, VAT, excise, withholding or any other taxes that may be imposed, based on this Agreement, use of the Moasis Website, or its Ads, products or services (except for taxes on net income payable by Moasis). Advertiser shall also pay all reasonable expenses and attorneys’ fees Moasis incurs in collecting overdue charges. If Moasis is unable, for any reason, to effect automatic payment by credit card, Moasis will attempt to notify Advertiser and Advertiser’s Moasis account may be disabled until payment is received. To the fullest extent permitted by law, Advertiser waives all claims relating to charges (including, without limitation, any claims respecting charges based on suspected invalid impressions) unless asserted within sixty (60) days after the charge. Advertiser agrees that Moasis’ measurements for the applicable Ad are the definitive measurements for payments due and owed hereunder, and will be final and not subject to challenge. To the fullest extent permitted by law, refunds (if any) are at the discretion of Moasis and will be issued only in the form of advertising credit for Ads displayed on the Moasis Network or any other publisher network approved by Moasis. Notwithstanding the immediately preceding sentence, Moasis shall give Advertiser a refund for any prepaid plan if Moasis stops providing the Services to Advertiser for a reason not set forth in this Agreement or on any page appearing on the Moasis Website that discusses the general terms and conditions of use applicable to the Services. The amount of such refund shall equal the product of the prepaid amount multiplied by a fraction the numerator of which shall be the number of unused impressions and the denominator of which shall be the total number of purchased impressions. Nothing in this Agreement shall obligate Moasis to extend credit to Advertiser. Advertiser acknowledges and agrees that any credit card and related billing and payment information that Advertiser provides to Moasis may be shared by Moasis with service providers who work on Moasis’ behalf, such as payment processors and/or credit agencies, solely for the purposes of checking credit, effecting payment to Moasis and servicing Advertiser’s account. Moasis may also provide or use such information in response to valid legal process, such as subpoenas, search warrants and court orders, or to establish or exercise its legal rights or defend against legal claims. Moasis shall not be liable for any use or disclosure of such information by such third parties. Any payment terms and information included in the Moasis FAQ are incorporated herein and shall bind Advertiser, and, therefore, Moasis encourages Advertiser to carefully review the Moasis FAQ from time-to-time.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF ADVERTISER
Advertiser represents, warrants, and covenants to Moasis as follows: (a) Agency. (i) Advertiser is authorized to act on behalf of and has bound to this Agreement any Principal for which Advertiser places an Ad, (ii) as between Principal and Advertiser, Principal owns any rights to information included in, and associated with, the content of such Ads, and (iii) Advertiser shall not use such information or content for any other purpose without Principal’s consent. (b) Promotional Deadline. Any redemption, discount, coupon or other promotional deadline shall be clearly and conspicuously disclosed in any Ad and any voucher, certificate, coupon or other document relating to such Ad. (c) No Automatic Renewal Programs or Memberships. Advertiser shall not offer any promotions that may result in the enrollment of consumers in automatic renewal or membership programs or impose upon consumers any type of continuing obligation. (d) Compliance with Laws. Advertiser shall comply with all applicable federal and state laws and regulations governing advertising, marketing and promotions, including, without limitation, redemption, refund, cash-out obligations, and other inducement programs.
4. LIMITATION OF LIABILITIES
TO THE FULLEST EXTENT PERMITTED BY LAW, MOASIS SHALL NOT HAVE ANY LIABILITY TO ADVERTISER FOR LOST PROFITS OR OTHER CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY, INDIRECT OR INCIDENTAL DAMAGES, BASED UPON A CLAIM OF ANY TYPE OR NATURE INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, NEGLIGENCE OR OTHER TORT, WARRANTY, OR ANY STATUTORY DUTY, PRINCIPLES OF INDEMNITY OR CONTRIBUTION, THE FAILURE OF ANY LIMITED OR EXCLUSIVE REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSES, OR OTHERWISE. EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, MOASIS’ TOTAL OBLIGATIONS AND/OR LIABILITY ARISING FROM ANY CLAIM MAY NOT EXCEED THE CHARGE FOR THE AD IN QUESTION. EXCEPT AS EXPRESSLY SET FORTH HEREIN, MOASIS MAKES NO OTHER WARRANTIES TO ADVERTISER AND DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE.
5. INDEMNIFICATION; REMOVAL OF HARMFUL OR INAPPROPRIATE ADS
6. FORCE MAJEURE
Moasis shall not be liable for delays in delivery and/or non-delivery in the event of an act of God, actions by any governmental or quasi-governmental entity, Internet failure, equipment failure, power outage, fire, earthquake, flood, insurrection, riot, act of terrorism, act of war, explosion, embargo, strike (whether legal or illegal), labor or material shortage, transportation interruption of any kind, work slow-down, or any condition beyond Moasis’ control affecting the Services or delivery of Ads in any manner.
Advertiser may cancel or terminate advertising online through Advertiser’s account if online cancellation functionality is available, or, if not available, with advance written notice to Moasis, including, without limitation, electronic mail. Online auction-based advertising cancelled online or through other means will cease as soon as commercially reasonable after cancellation, determined by considering functionality, technological limitations, Moasis commitments, and Moasis’ ability to re-schedule reserved inventory or cancel Ads already in production. If an Ad is displayed despite Moasis’ commercially reasonable efforts to cancel the Ad, Advertiser shall remain obligated to pay for such Ad. Cancelled Ads may be displayed on the Moasis Network despite cancellation if cancellation of those Ads occurs after any applicable commitment date as set forth in advance by Moasis. Moasis may cancel immediately any Ad program or this Agreement, at any time and without any reason, by providing Advertiser notice by electronic mail or other reasonable means of communication.
Moasis and Advertiser have disclosed or may disclose to each other information relating to the other party’s business (including, without limitation, data and other information pertaining to the Sites, affiliates and vendors that are or have been part of the Moasis Network), all of which to the extent previously, presently or subsequently disclosed to each other is “Proprietary Information”. Proprietary information does not include information that each party can document (a) is or becomes (through no improper action or inaction of a party or its representatives (as defined below)) generally known by the public, (b) was in its possession or known by it without restriction prior to receipt from the other party, or (c) becomes available to a party from a source other than the other party or its Representatives having no obligation of confidentiality. “Representatives,” when used with respect to either party, means that party’s affiliates, agents, managers, officers, directors, consultants and employees. The parties agree (i) to hold Proprietary Information in strict confidence and to take all reasonable precautions to protect such Proprietary Information (including, without limitation, all precautions each party employs with respect to its most confidential materials), (ii) not to make any use whatsoever at any time of such Proprietary Information, except for the purpose of evaluating the results of the Ads, (iii) not to copy any Proprietary Information for any purpose whatsoever without the prior written consent of the disclosing party, and (iv) not to divulge any Proprietary information or any information derived therefrom to any third party or employee, except those of each party’s employees who have a legitimate “need to know” and are bound in writing to the restrictions herein. Each party will be responsible for a breach of this Agreement by any of its Representatives. Each party shall promptly notify the other party upon discovery of any unauthorized use or disclosure of Proprietary Information and will cooperate with the other party in every reasonable way to help regain possession of such Proprietary Information and prevent its future unauthorized use.
9. CHOICE OF LAW; ARBITRATION; VENUE
This Agreement is governed by the laws of the State of California, irrespective of its conflict of laws provisions. Except for any party’s petition for injunctive relief, any controversy, claim, or dispute arising out of or relating to the terms of this Agreement shall be settled by arbitration, before one (1) arbitrator, conducted in San Francisco County, California, in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) then in effect. The parties shall agree on an arbitrator, and if they are unable to do so, the AAA shall appoint the arbitrator. The rules of evidence shall not strictly apply and the arbitrator shall have discretion as to the admission of evidence. The parties shall take any action reasonably necessary or appropriate to expedite the arbitration process and, notwithstanding any term of this Agreement to the contrary, the arbitration shall be completed within ninety (90) days after arbitration is commenced. In the event the arbitrator determines that a party to the controversy, claim, or dispute subject to arbitration has failed to comply with the terms of this section, the arbitrator shall be authorized to award to the other party all reasonable costs and attorney fees incurred directly or indirectly relating to any delay caused by such noncompliance. The arbitrator may also award reasonable attorneys fees and costs to the party whom the arbitrator determines has prevailed in the arbitration proceeding. Judgment may be entered on the arbitrator’s award in any court having jurisdiction, and the parties specifically consent to the jurisdiction of the state courts in San Francisco County, California or, if it has jurisdiction, the United States District Court, Northern District of California. If any such controversy, claim or dispute involves a claim for injunctive or other equitable relief, and suit, counterclaim or cross-claim for such relief is filed in a court of competent jurisdiction, the litigation shall be bifurcated to the extent feasible, to the end that all issues other than those required to be determined by the court on the petition for injunctive or equitable relief shall be determined by arbitration as required above. Any such action or proceeding shall be brought in the state courts in Palm Beach County, Florida, or in the United States District Court, Southern District of Florida, unless otherwise required by law. The parties consent to the jurisdiction of such courts (and of the appropriate appellate courts) in any such suit, action, or proceeding and waive any objection to venue laid therein. If permitted by law, the parties waive any right to trial by jury and agree to waive the personal service of any process upon them by agreeing that service may be effected by overnight mail (using a commercially recognized service) with delivery receipt to the last address provided by Advertiser and, as to Moasis, the address then appearing on the Moasis Website.
10. ENTIRE AGREEMENT; MODIFICATION
11. MARKETING; PRESS RELEASES
Advertiser shall not release any information regarding its or any Publisher’s relationship with Moasis or its customers, including, without limitation, in press releases or promotional or merchandising materials, without the prior written consent of Moasis. Moasis shall have the right to reference its work for, and relationships with, Advertisers for marketing and promotional purposes. No press releases or general public commencements shall be made without the mutual consent of Moasis and Advertiser.
Any notice required or permitted by this Agreement shall be in writing and shall be deemed sufficient upon delivery, when delivered personally or by overnight courier or sent by fax (upon customary confirmation of receipt), or forty-eight (48) hours after being deposited in the U.S. Mail, as certified or registered mail, with postage prepaid, addressed to Advertiser at the last address provided by Advertiser, and to Moasis at the address then appearing on the Moasis Website or as modified by written notice given by either party.
No rights or obligations under this Agreement may be assigned by Advertiser without the prior written consent of Moasis. Any assignment, transfer or attempted assignment or transfer in violation of this Section shall be void and of no force and effect. Moasis and any of its subsequent assignees may assign this Agreement, in whole or in part, or any of its rights or delegate any of its duties, under this Agreement to any party. This Agreement shall be binding upon and inure to the benefit of the parties and their respective permitted successors and assigns.
14. INDEPENDENT CONTRACTORS
Each party is an independent contractor. Any intention to create a joint venture or partnership between the parties is expressly disclaimed. Except as set forth herein, neither party is authorized or empowered to obligate the other or to incur any costs on behalf of the other without the other party’s prior written consent.
15. SURVIVAL AND SEVERABILITY
Any obligations that expressly or by their nature are to continue after termination, cancellation, or expiration of the Agreement shall survive and remain in effect after such happening. Each party acknowledges that the provisions of the Agreement were negotiated to reflect an informed, voluntary allocation between them of all the risks (both known and unknown) associated with the transactions contemplated hereunder. All provisions are inserted conditionally on their being valid in law, and, in the event that any provision of the Agreement conflicts with the law under which the Agreement is to be construed, or if any such provision is held invalid or unenforceable by a court with jurisdiction over the parties to the Agreement, then (i) such provision will be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law; and (ii) the remaining terms, provisions, covenants, and restrictions of the Agreement will remain in full force and effect.
16. REMEDIES AND WAIVER
Except as otherwise specified, the rights and remedies granted to a party under this Agreement are cumulative and in addition to, not in lieu of, any other rights and remedies that the party may possess at law or in equity. Failure of either party to require strict performance by the other party of any provision shall not affect a party’s right to require strict performance thereafter. Waiver by either party ofa breach of any provision shall not waive either the provision itself or any subsequent breach.