Moasis Global LLC (“Moasis”) and Publisher enter into this Publisher Agreement (“Agreement”) to establish the terms and conditions by which Publisher may enter the Moasis Network and display advertisements on the Mobile Properties on behalf of Moasis Advertisers through utilization of the services and software provided by Moasis (collectively, “Services”). Unless otherwise indicated, all capitalized terms shall have the meanings ascribed to them in this Agreement.
“Ad” or “Creative” means the graphic, video, video companion banners or text file(s) provided by Moasis to Publisher to be displayed by Publisher on behalf of Advertiser. “Ad-enabled Property” means any of the Mobile Properties properly modified by Publisher in accordance with the documentation supplied with the applicable Moasis SDK, that enables such Mobile Property to receive and display Ads. “Advertiser” means an advertiser or advertising agency that displays Ads on Publisher’s Media or the Moasis Network. “Compatible Device” means a User’s Mobile communication device that is compatible (as determined by Moasis) with the Moasis ad-serving system, and which may include, without limitation, wireless, mobile or cellular communication devices, Internet communications devices, or other communications or transmission technologies now known or hereafter devised. “Conventional Website” means a virtual location on the Internet under the control of Publisher and designated by a unique URL, except for Mobile Websites or Mobile Applications. A Conventional Website may consist of one or more web pages and may be accessed by a User on a Compatible Device. “Impressions” means the number of times an Ad is served to, and received by, Users on a specific Mobile Property. “Intellectual Property” means trade names, logos, trademarks, service marks, trade dress, internet domain names, Short Codes, copyrights, patents, trade secrets, know-how and proprietary technology, including, without limitation, those trade names, logos, trademarks, service marks, trade dress, copyrights, patents, testimonials, endorsements, know-how, trade secrets and proprietary technology currently used by a party or which may be developed and/or used by it in the future. “Minimum Payment Threshold” has the meaning set forth in Section 8(a). “Moasis Network” means the aggregate of Conventional Websites, Mobile Applications and Mobile Websites, or other separately identifiable items of Mobile software or electronic content, owned, aggregated by, or under the control of publishers of Moasis that display Ads. “Moasis SDK” means Moasis software developer’s kit, as provided to Publisher by Moasis (consisting generally of software, an application programming interface, and associated documentation), designed to enable Publisher to convert its Mobile Properties into Ad-enabled Properties. “Moasis Website” means the virtual location maintained by Moasis on the Internet, the URL of which is www.moasisglobal.com. “Mobile” means cellular, tablet, handheld devices and/or digital displays. “Mobile Application” means a downloadable application for a Mobile device. “Mobile Properties” means each of Publisher’s Mobile Applications, Mobile Websites, or other separately identifiable items of Mobile software or electronic content, that has been approved by Moasis for conversion by Publisher into an Ad-enabled Property (which approval will be indicated by Moasis’ issuance to Publisher of an ID number to uniquely identify such Mobile Application, Mobile Website, or other item in Moasis’ Ad-serving system). “Mobile Website” means a Conventional Website that has been optimized to a Mobile device format or that has not been optimized but is able to transmit to a “Mobile” outlet. “Net Revenue” has the meaning set forth in Section 8(a). “Network IP” means the Ads, code and/or source code, Moasis SDK when applicable, and other Intellectual Property made available to Publisher in connection with its performance under this Agreement. “PII” means personally identifiable information. “Prohibited Conduct” means conduct during the course of performance of this Agreement that is specifically proscribed in Section 3 of this Agreement, or is related to such conduct. “Publisher License Fees” means all license fees and/or other fees required to be paid to third parties that enable Publisher to perform Publisher’s obligations or exercise Publisher’s rights hereunder, and for any other act by Publisher under this Agreement. “Publisher’s Media” means the aggregate of Conventional Websites, Mobile Applications, and/or Mobile Websites, or other separately identifiable items of Mobile software or electronic content, owned by, aggregated by, or under the control of Publisher, that have been approved by Moasis for conversion by Publisher into an Ad-enabled Property (which approval will be indicated by Moasis’ issuance to Publisher of an ID number to uniquely identify such Mobile Application, Mobile Website, or other item in Moasis’ Ad-serving system). “Publisher Revenue Share” has the meaning set forth in Section 8(a). “Spyware” has the meaning set forth in Section 3(b)(ii). “Third-Party Channel” means an online application distribution channel operated by a third party for a given type of Mobile Property associated with a given Compatible Device platform, such as Apple’s “App Store” or Google’s “Android Market.” “User” means any actual person accessing the Mobile Properties. “Website” means Conventional Websites and Mobile Websites but excludes Mobile Applications.
1. MOASIS SERVICES
2. MOASIS NETWORK
Creation and Distribution of Ad-enabled Properties for Mobile Applications. (a) Moasis SDK License Grant. Subject to Publisher’s compliance with this Agreement, Moasis grants to Publisher a worldwide, royalty-free, non-exclusive, non-transferable license to use, internally, each Moasis SDK solely for purposes of converting the Mobile Properties into an Ad-enabled Property in accordance with the documentation included in such Moasis SDK. Publisher shall not use any Moasis SDK for any purpose other than as authorized in this Section, and Publisher may not share, sell, license or otherwise distribute the Moasis SDK, in whole or in part, to any third party without Moasis’ prior written approval. (b) Distribution of SDK-Modified Mobile Properties. Publisher shall be solely responsible for distributing or publishing each Ad-enabled Property (as modified using the Moasis SDK), and shall do so only through legitimate Third-Party Channels and/or other appropriate and legal channels. Publisher acknowledges that it shall be solely responsible for making arrangements for each Ad-enabled Property to be hosted and distributed through any applicable Third-Party Channel. Publisher shall submit each Ad-enabled Property to such Third-Party Channel(s) in accordance with the policies and procedures of the Third-Party Channel(s), and shall be solely responsible for any fees, revenue shares, or other compensation charged by any third party in connection with the hosting or distribution of such Ad- enabled Properties. (c) Listing by Moasis of SDK-Modified Mobile Properties. Subject to Publisher’s compliance with this Agreement, upon Publisher’s submission to Moasis of any Ad-enabled Property’s identification number assigned by a Third-Party Channel (and/or any other relevant information as specified in the Moasis SDK documentation), Moasis may list such Ad-enabled Property in an online content catalog made available by Moasis. Where feasible, and where not prohibited by then-current Third-Party Channel policies, such listing may also link to the Ad-enabled Property within the Third-Party Channel in order to promote the distribution of such Ad-enabled Property. (d) Restrictions. Except as expressly authorized herein, Publisher shall not cause or permit (i) copying or modification of any portion of the Moasis SDK, or any accompanying documentation; (ii) reverse engineering, decompilation, translation, disassembly, alteration, adaptation, or discovery of the Network IP as incorporated in or integrated with the Ad-enabled Property or any report file format (except to the extent that such a restriction is prohibited by law); (iii) use of the Moasis SDK in any manner other than as expressly authorized under this Agreement; or (iv) transfer of the Ad-enabled Property or export of the Ad-enabled Property in violation of applicable law. (e) Rights Reserved. Moasis reserves the right to (i) make substitutions and modifications in the specifications and technology of the Moasis SDK and/or any other software or systems used in connection with Moasis’ delivery of Ads via the Ad-enabled Properties, provided that such substitutions or modifications do not adversely affect their functionality; and (ii) discontinue the Moasis SDK or any software or systems used in connection with Moasis’ serving of Ads via the Ad-enabled Properties, without prior notice. Interruption of Services. Publisher understands and agrees that from time-to-time the Moasis Website may be inaccessible, unavailable or inoperable for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs that Moasis may undertake from time-to-time; or (iii) causes beyond the control of Moasis or that are not reasonably foreseeable by Moasis, including interruption or failure of telecommunication or digital transmission links, hostile network attacks, the unavailability, operation, or inaccessibility of websites or interfaces, network congestion, or other failures or circumstances that, by their nature, cannot reasonably be forseen. While Moasis will attempt to provide access to the Moasis Website on a continuous basis, Publisher acknowledges and agrees that Moasis has no control over the availability of the Moasis Website on a continuous or uninterrupted basis and any failure resulting from technical difficulties does not represent a failure by Moasis to meet its obligations under this Agreement. Publisher also understands and agrees that Moasis is not responsible for the functionality of any third-party website or interface. Terms of this Agreement are subject to Moasis hardware, software, and bandwidth traffic limitations. Moasis reserves the right to discontinue offering any of the functions on the Moasis Website at any time. Except as otherwise specified by Moasis, Publisher agrees that it will direct all communications relating to the Moasis Website, an Ad, an Advertiser, or this Agreement directly to Moasis and not to any other entity unless instructed, in writing, to do so by Moasis.
3. WEBSITE CONTENT; PROHIBITED CONDUCT
(a) Pre-approval Required. If any of Publisher’s Media or Mobile VAS service relates to or has any of the following characteristics, Publisher may not use such Publisher’s Media or VAS service use for any purpose under this Agreement without Moasis’ prior written consent: (i) excessive ads, app- quest/test, user content (blogs, etc.); (ii) controversial issues, religion, sexual orientation and/or edgy humor; (iii) wrestling; (iv) anime; (v) old content; and/or (vi) poor quality design and functionality. (b) Prohibited Conduct. Neither Publisher’s Media nor Mobile VAS may produce, contain, relate to or have characteristics of Prohibited Conduct, which is defined as: (i) Ad Placement & Tracking. Publisher shall not (A) place Ads in emails without prior written consent and tracking from Moasis; (B) intentionally place Ads on blank web pages or on web pages with no content; (C) stack Ads (e.g. place on top of one another so that more than two Ads are next to each other); (D) place Ads on non-approved Mobile Properties or web pages, or in such a fashion that may be deceptive to the User; (E) incentivize offers or create the appearance to incentivize offers; (F) place statements near the Ads requesting that Users “click” on the Ad (i.e., “Please click here”) or “visit” the sponsor (i.e., “Please visit our sponsor”); (G) place misleading statements near the Ad (i.e., “You will win $5,000.”); (H) redirect traffic to a Website other than that listed by the particular Advertiser; (I) ask Users to take advantage of other Ads or offers other than those listed by the particular Advertiser; (J) serve Ads, or drive traffic to such Ads, using any downloadable applications without the prior written consent of Moasis, which, if provided, is subject in each case to the following condition: Ads delivered in approved downloadable applications may only be shown once per User session when the application is active, enabled and clearly recognizable by the end User as being active and enabled. Serving Ads at anytime when the downloaded application is not active is strictly prohibited and grounds for immediate termination without pay; (K) use invisible methods to generate impressions, clicks, or transactions that are not initiated by the affirmative action of the User; or (L) attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the Website tags, source codes, links, pixels, modules or other data provided by or obtained from Moasis that allows Moasis to measure Ad performance and provide its Services. (ii) Websites. Publisher shall not place any Ads or Network IP on Websites that contain, promote, reference or have links to: (A) profanity, sexually explicit materials, hate material, violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation, age, or family status, or any other materials deemed unsuitable or harmful to the reputation of Moasis; (B) software piracy (warez, cracking, etc.), hacking, phreaking, emulators, ROM’s, or illegal MP3 activity; (C) illegal activities, deceptive practices or violations of the intellectual property or privacy rights of others; (D) Websites under construction, hosted by a free service, or lacking authority to use their domain name; (E) charity clicks/donations, paid to surf, personal Websites, Website applicants who are not the owner of or employed by the applying Website, active x downloads, no content (link site), all affiliate links, or incentivized traffic; or (F) activities generally understood as Internet abuse, including, but not limited to, the sending of unsolicited bulk electronic mail or the use of Spyware. For purposes hereof, “Spyware” shall mean computer programs or tools that alter a computer User’s browser or other settings or use an ActiveX control or similar device to download ad-supporting software without providing fair notice to User and obtaining User’s affirmative consent; prevent a computer User’s reasonable efforts to block the installation of or disable or remove unwanted software; remove or disable any security, anti-spyware or anti-virus technology on a User’s computer; send email through a User’s computer without prior authorization; open multiple, sequential, stand-alone advertisements in the consumer’s Internet browser that cannot be closed without closing the Internet browser or shutting down the computer or other similar activities that are prohibited by applicable law. (iii) Search & Miscellaneous. Publisher shall not: (A) violate guidelines of any search engines being utilized; (B) engage in search engine spam, doorway pages, cloaking, etc.; (C) bid on any trademarked name or terms in any PPC/”keyword”/”adword”/campaign; (D) conduct search Ads falsely suggesting a link between Moasis and a third-party or otherwise infringing on a third-party’s intellectual property rights; (E) engage in any advertising via facsimile or telemarketing; or (F) engage in any misleading or deceptive conduct. (iv) Additional Prohibited Conduct for Mobile Applications. Publisher agrees that the technical content published in any Ad-enabled Property shall be maintained and updated by Publisher on a regular basis and that such Ad-enabled Property shall comply at all times with Moasis applicable requirements as communicated to Publisher by Moasis. Publisher shall not remove or alter any proprietary notices provided by Moasis in the Moasis SDK or that are required (pursuant to the Moasis SDK documentation) to be included in the Ad-enabled Property code, or that might appear when a User accesses an Ad-enabled Property on their Compatible Device(s).
4. AD CONTENT AND PLACEMENT
(a) Compliance with Industry Standards. Publisher agrees to undertake and place Ads in compliance with this Agreement, the Interactive Advertising Bureau Guidelines, Standards and Best Practices, the Publisher Guidelines (for Websites), Greystripe Content Guidelines, WIKI Best Practices, and Mobile Marketing Association standards (for Mobile Applications), and/or Moasis-issued insertion order (if any), including all Ad placement restrictions or channels specifications, in accordance with the highest industry standards. Publisher shall position the Ads in such a manner to assure that they are fully and clearly visible to consumers and displayed in a similar manner as other advertisers included in Publisher’s Media. (b) No Modifications to Ads or Network IP. Except as permitted under this Agreement, Publisher shall not alter, copy, modify, take, sell, re-use, or divulge in any manner any Creative or Network IP without Moasis’ prior written consent, and any approved modifications shall be owned solely by Moasis. Publisher shall not copy Ads and display them directly from any of Moasis’ Publisher’s Media, redirect traffic to any of Publisher’s Media other than those specified in writing by Moasis; or ask Users to take advantage of advertisements or offers other than those provided by a Moasis Advertiser. Any Ad that is copied, changed, or altered without prior written approval by Moasis will result in non-payment for the campaign and may result in termination. (c) Requirements for Conventional Websites. As concerns Publisher’s Conventional Websites, Publisher shall be solely responsible for (i) managing its advertising content exclusions in the Moasis interface; and (ii) placing Ads on Moasis-approved Conventional Website(s), which placement shall be subject to the terms and conditions of this Agreement. Moasis pop-up or pop-under windows cannot be launched from Publisher’s Media that launch more than one pop window, including the Moasis pop. All in page and video Ads must be placed above the fold or within 1,000 pixels of the top of the web page. Pop-under or In-Vue windows cannot be launched from Publisher’s Conventional Websites that launch more than a total of two (2) pop windows, including the Moasis pop-under or In-Vue. Skyscrapers or wide skyscrapers and half page formats cannot be placed on the same web page. Publisher agrees to use the Network IP for displaying an Ad and an Ad may not be placed more than once per web page view. (d) Video Ads for Conventional Websites. In-stream Ads may be associated with video, audio, or flash entertainment. In-stream video Ads may not be implemented in a stand-alone manner or with generic placeholder files. Publisher agrees to undertake and place video Ads in compliance with the Publisher Video Guidelines. Publisher shall inform Moasis whether the video placement is in-stream pre-roll, in-stream mid-roll, in-stream post-roll or in-stream auto-start and whether the placement includes a synchronized companion banner and the category of content to which the placement is adjacent. Further, under no circumstances shall Publisher’s Conventional Websites be permitted to run video Ads that (i) are below-the-fold and auto-start; (ii) by default (i.e., without User interaction) do not play the sound track of the Ad; (iii) auto-start and are presented or located in such a manner that would make it unlikely that the Ads would be viewed by actual Users, whether or not the sound is defaulted to off; (iv) are located in downloadable applications (unless the application is available for download via a Third Party Channel); or (v) are located in pop-up windows. Publishers are prohibited from (i) serving more than one pre-roll Ad at the same time; (ii) running multiple Ads in a pod; and (iii) auto-start videos. For Mobile Properties, Publisher consents to Moasis’ right to serve video Ads on such Mobile Properties. (e) Default Ads. Publisher acknowledges and agrees that Moasis may not be able to fill one hundred percent (100%) of inventory with paying Ads. For Publisher’s Media, Moasis may provide free to Publisher’s Media defined default redirects expressly for this reason. Publisher’s Media defined default Ads must adhere to the content guidelines set forth in Section 3 of this Agreement. If Publisher uses default Ads that violate the content restrictions of this Agreement, Publisher will be removed from the Moasis Network. If Publisher chooses not to specify a default redirect, Moasis will display so-called “house” and/or “AdCouncil” Ads on Publisher’s Media when paid advertising is unavailable or when technical difficulties require it. Under no circumstances does Moasis guarantee to provide any percent fill of paid Ads to Publisher’s Media.
5. PROPRIETARY RIGHTS
(a) Licenses. Immediately following download of the Ad-enabled Property by a User to such User’s Compatible Device, Publisher acknowledges and agrees that Moasis or its affiliates, suppliers, service providers, or business partners may serve Ads to such User’s Compatible Device via the Ad-enabled Property, and Publisher hereby grants to Moasis (and its affiliates, suppliers, service providers, and business partners) any and all necessary rights and licenses to do so. Consequently, and without limiting the foregoing, Moasis and its affiliates, suppliers, service providers and business partners are authorized to load the Network IP onto such Ad-enabled Properties in connection with such serving of Ads. Provided that Publisher complies with all provisions of this Agreement, Moasis hereby grants to Publisher a non-exclusive, limited, revocable license to use, execute, and display the Network IP solely for Publisher’s performance of its obligations hereunder. Except for the limited license expressly granted in this Section 5(a), nothing in this Agreement shall be construed as Moasis granting Publisher any right, title or interest in the Network IP. Publisher acknowledges and agrees that Moasis and/or Advertiser owns all right, title and interest in and to the Network IP and all related intellectual and proprietary rights of any kind anywhere in the world. Except as expressly permitted by this Agreement, Publisher’s use of the Network IP or the results created thereby, or disseminating or distributing the same, is strictly forbidden and will result in the termination of this limited license and may result in Publisher being held liable under applicable law. (b) Intellectual Property Ownership. Subject to the limited licenses granted to Moasis and Publisher hereunder, each party shall own and shall retain all right, title and interest in itsIntellectual Property, including, without limitation, all of the Intellectual Property now existing or arising in the future. Except as provided in this Agreement, neither party may distribute, sell, reproduce, publish, display, perform, or prepare derivative works nor otherwise use any of the Intellectual Property of the other party without the express prior written consent of such party. (c) Data Ownership. Publisher understands that all data, including, but not limited to, data derived from a Moasis SDK, PII provided by Users in response to an Ad and/or any or all reports, results, and/or information created, compiled, analyzed and/or derived by Moasis from such data, is the sole and exclusive property of Advertiser and/or Moasis and is considered Confidential Information pursuant to this Agreement. Moasis and its affiliates and/or its Advertisers, in their sole discretion, shall have the right to use, market, and re-market the User(s) and/or data without further obligation to Publisher. Publisher shall not make any use of, copy, make derivative works from, sell, transfer, lease, assign, redistribute, disclose, disseminate, or otherwise make available in any manner, such data or information, or any portion thereof, to any third-party, including without limitation, any such data or information for purposes of enhancing a User’s profile. Unless otherwise agreed to in writing by the parties, any other use of such data or information is strictly prohibited. Publisher shall not transfer to Moasis any PII or any other User information subject to an opt-in approval by the User if such User has not granted Publisher the right to share such information with third parties. Publisher acknowledges that Moasis may from time-to-time collect non-PII, demographic information regarding Users of Publisher’s Media (such as the User’s age, gender, or zip code) that may be associated with a particular device ID. In addition, Publisher may provide to Moasis certain non-PII, including, but not limited to, non-PII User registration data. Publisher agrees that Moasis and its affiliates will be free to use such non-PII at Moasis’ sole discretion in connection with its targeted advertising services.
6. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PARTIES
(a) Publisher Representations, Warranties, and Covenants. The parties acknowledge that Publisher is solely responsible for the method of dissemination of the Ad campaigns and that Moasis will not have any control over the method of dissemination and is relying entirely on the representations, warranties and covenants contained herein made by Publisher. Publisher represents that it has paid all Publisher License Fees and Publisher covenants to timely pay any Publisher License Fees required to be paid during the term of this Agreement. Publisher further represents and warrants that it owns or has an appropriate license to the content on Publisher’s Media, and any Publisher License Fees required for Publisher content are Publisher’s obligation and not the obligation of Moasis. Publisher represents, warrants, covenants and acknowledges that (i) it will provide and maintain the resources, personnel and facilities suitable to perform its obligations under this Agreement; (ii) for Websites, it will comply with all applicable federal, state and local laws and regulations, and the laws and regulations of any applicable foreign jurisdiction, including, without limitation, laws relating to advertising, the Internet, privacy and unfair business practices; (iii) for Mobile Properties, in any jurisdiction where Ads are used/viewed, it will not operate or utilize a Mobile Website or Mobile Application that fails to comply with local or national laws, regulations or guidelines on mobile marketing and/or mobile communications (whether for commercial use or otherwise); (iv) it will not engage in Prohibited Conduct; (v) it is either an entity or at least 18 years of age on the effective date of this Agreement; and (vi) Moasis has not made, and Publisher will not rely upon, any specific or implied promises as to the successful outcome of any Ad or campaign. (b) Mutual Warranties. Each party represents and warrants to the other that (i) it has the full right, power, legal capacity, and authority to enter into, deliver and fully perform under this Agreement; (ii) the execution, delivery, and performance of this Agreement will not result in a violation or breach of any contract, agreement, order, judgment, decree, rule, regulation or law to which such party is bound; and (iii) it is not relying on any representations, warranties, or covenants of the other party related to the subject matter hereof that are not expressly stated in this Agreement.
(a) Payment Rate and Terms. Moasis reserves the right to set Ad campaign rates, which may vary with market conditions. All such rates shall be disclosed in the Moasis FAQ (frequently asked questions) page found on the Moasis Website. Publisher shall receive that percentage of Net Revenue set forth in the Moasis FAQ in effect at the time such Net Revenue is generated, or as otherwise agreed by Moasis and Publisher (in either instance, the “Publisher Revenue Share”). “Net Revenue” shall mean revenues actually received by Moasis from the sale, use or other disposition of Ads displayed on Publisher’s Media, less (i) sales, use and excise taxes, (ii) agency commissions, (iii) carrier and/or partner fees, (iv) chargebacks, (v) applicable Ad-serving, technology and processing fees paid to third parties, and (vi) any allowances actually made or taken for returns, cash discounts or promotional allowances, but excluding other revenues earned, if applicable, for consulting, planning and targeting, copywriting, site building, training, account management or technical modifications or technical innovations that may be charged by Moasis to Advertisers from time-to-time. Publisher shall not invoice Moasis as all Publisher invoices will be discarded. Subject to subsection (d) below, Moasis shall pay the Publisher Revenue Share within thirty (30) days after receipt of the amounts due from the Advertisers who display their Ads on Publisher’s Media. Moasis shall pay the Publisher Revenue Share via electronic funds transfer, or through PayPal if Publisher maintains a PayPal account, or by check, as determined in the sole discretion of Moasis. All payments shall be made in United States dollars, except where prohibited by law. Publisher understands and agrees that, notwithstanding any provision herein to the contrary, Moasis shall not be obligated to make any payment to Publisher unless and until Moasis has received corresponding payments from its Advertisers. Publisher agrees that Moasis is authorized at any time to (x) charge-back any amount paid to Publisher, or (y) set-off against any future Publisher Revenue Share any amounts due to an Advertiser whose Ads have been displayed on Publisher’s Media, that arise from a charge-back against Moasis or other event resulting in a refund to an Advertiser or Advertising Agency or a credit to their Moasis accounts. To ensure proper payment, Publisher is solely responsible for providing and maintaining accurate contact and payment information associated with Publisher’s Moasis account and its PayPal account. No payment will be issued for any amount less than the minimum payment set forth in the Moasis FAQ (the “Minimum Payment Threshold”). Any unpaid amount of the Publisher Revenue Share will roll-over to the next pay period. If no payment is made to Publisher for six consecutive months, Publisher’s account shall become subject to immediate payoff and Moasis may terminate the Agreement and dismiss Publisher from the Network. As a condition to Moasis’ obligation to make payments hereunder to Publisher, Publisher must log into its account and provide its mailing address and/or payment instructions; email address; and a completed and accurate W-9 or equivalent (for US-based Publishers) or a completed and accurate W-8 or equivalent (for non-US-based Publishers). Moasis may withhold $50 for any stop payment directive it is required to issue, or for each wire transfer fee incurred. All payment terms and information included in the Moasis FAQ are incorporated herein and shall bind Publisher. (b) Taxes. Any payments made under this Agreement do not include and are net of any government imposed garnishments (e.g. IRS, child support, withholding tax), foreign or domestic governmental taxes or charges of any kind that may be applicable to the sale, licensing, marketing or distribution of Publisher’s Media, including, without limitation, excise, sales, use, or value-added taxes; customs or other import duties; or other taxes, tariffs or duties. (c) Payment Disputes. If Publisher disputes any payment, Publisher must notify Moasis in writing (and not any Advertiser or advertising agency) within fifteen (15) days of Publisher’s (or its bank’s) receipt of any such payment. If Publisher does not notify Moasis within that time, Publisher shall waive any claims related to such disputed payment. Payments shall be calculated solely based on records maintained by Moasis. No other evidence, measurements or statistics of any kind shall be accepted by Moasis or have any effect under this Agreement. (d) Breach of Agreement. Moasis reserves the absolute right to withhold Publisher Revenue Share payments from accounts if Publisher engages in any Prohibited Conduct or violates any of the other terms and conditions set forth herein. Moasis shall determine, in its sole discretion, whether acts or omissions are deceptive, fraudulent or violate this Agreement.
Publisher is solely responsible for any legal liability arising out of or relating to use of Publisher’s Media, any material to which Users can link through Publisher’s Media, and/or any consumer, governmental or regulatory complaint arising out of any Ads displayed by Publisher. Publisher shall indemnify, defend, and hold harmless Moasis and its managers, officers, directors, employees, agents, members, affiliates, representatives, agents and Advertisers (collectively, “Moasis Parties”) from and against any and all allegations, claims, actions, causes of action, lawsuits, damages, liabilities, obligations, costs and expenses (including, without limitation, reasonable attorneys’ fees, costs related to in-house counsel time, court costs and witness fees) (collectively “Losses”) incurred by, or imposed or asserted against, the Moasis Parties relating to any claims, suits, or proceedings for (i) libel, defamation, violation of rights of privacy or publicity, copyright infringement, trademark infringement or other infringement of any third party right, fraud, false advertising, misrepresentation, product liability or violation of any law, statute, ordinance, rule or regulation throughout the world in connection with Publisher’s Media; (ii) any breach by Publisher of any duty, representation, warranty, or covenant under this Agreement; (iii) any breach by Moasis of any duty, representation, or warranty to provide Ad(s) for placement on Publisher’s Media caused by or arising from any breach by Publisher of this Agreement; (iv) a contaminated file, virus, worm, or Trojan horse originating from Publisher’s Media; or (v) the gross negligence or willful misconduct of Publisher.
10. LIMITATIONS OF WARRANTIES AND LIABILITY
(a) DISCLAIMER OF WARRANTIES. ALL SERVICES PROVIDED BY MOASIS ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE BASIS.” TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, MOASIS MAKES NO WARRANTIES, GUARANTEES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, STATUTORY, ORAL, WRITTEN, OR OTHERWISE, EXCEPT AS EXPRESSLY SET FORTH HEREIN. MOASIS IS NOT RESPONSIBLE FOR DELAYS CAUSED BY ACCIDENT, WAR, ACT OF GOD, EMBARGO, COMPUTER SYSTEM FAILURE, OR ANY OTHER CIRCUMSTANCE BEYOND ITS CONTROL. (b) LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL MOASIS BE LIABLE TO PUBLISHER FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (EVEN IF MOASIS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOST PROFITS, LOSS OF USE, LOST DATA OR ANY DAMAGES OR SUMS PAID BY PUBLISHERS TO THIRD PARTIES, ARISING FROM OR IN ANY WAY CONNECTED WITH THIS AGREEMENT. SUCH LIMITATION OF LIABILITY SHALL APPLY WHETHER THE CLAIM IS BASED UPON BREACH OF CONTRACT, WARRANTY, OR ANY STATUTORY DUTY, NEGLIGENCE OR OTHER TORT, PRINCIPLES OF INDEMNITY OR CONTRIBUTION, THE FAILURE OF ANY LIMITED OR EXCLUSIVE REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSES, OR OTHERWISE. IN NO EVENT SHALL MOASIS’ TOTAL OBLIGATIONS OR LIABILITY HEREUNDER EXCEED THE AMOUNT OF THE PAYMENTS DUE HEREUNDER. REGARDLESS OF ANY LAW TO THE CONTRARY, NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST MOASIS MORE THAN ONE (1) YEAR AFTER THE DATE UPON WHICH THE CLAIM AROSE. (c) CONSIDERATION. PUBLISHER ACKNOWLEDGES THAT MOASIS HAS AGREED TO PRICING IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH HEREIN, AND THAT THESE CONSIDERATIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. PUBLISHER AGREES THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY AND DISCLAIMERS SPECIFIED IN THIS AGREEMENT WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR LIABILITIES, AND, THEREFORE, SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO PUBLISHER.
11. TERM AND TERMINATION
(a) Termination. This Agreement, as may be amended, applies to Publisher for as long as Publisher displays Ads for Moasis. Moasis reserves the right to terminate Publisher from the Moasis Network at any time, with or without cause. (b) Post-termination. Upon termination, Publisher agrees to immediately remove from Publisher’s Media any and all Moasis code and Network IP supplied to Publisher by Moasis. Publisher shall be paid, in the next scheduled payment cycle following termination, all sums owed under this Agreement up to the time of termination.
Each party agrees that it may provide the other with information that is confidential and proprietary to that party or a third-party, as is designated by the disclosing party or that is reasonably understood to be proprietary and/or confidential (“Confidential Information”). Each party may use Confidential Information received from the other party only in connection with and to further the purposes of this Agreement. Confidential information shall not be commingled with information or materials of others and any copies shall be strictly controlled. The receiving party agrees to make commercially reasonable efforts, but in no case less effort than it uses to protect its own Confidential Information, to maintain the confidentiality of and to protect any proprietary interests of the disclosing party. Confidential Information shall not include (even if designated by a party) information: (i) that is or becomes part of the public domain through no act or omission of the receiving party; (ii) that is lawfully received by the receiving party from a third-party without restriction on use or disclosure and without breach of this Agreement or any other agreement, and without knowledge by the receiving party of any breach of fiduciary duty; or (iii) that the receiving party had in its possession prior to the date of this Agreement. Upon termination of this Agreement, or upon written request by Moasis, Publisher must destroy (and provide a certificate confirming the same) or return to Moasis any Confidential Information provided by Moasis under this Agreement.
13. 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 a 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 San Francisco County, California, or, if I has jurisdiction, in the United States District Court, Northern District of California, 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 Publisher and, as to Moasis, the address then appearing on the Moasis Website.
14. ENTIRE AGREEMENT; MODIFICATION
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 Publisher at the last address provided by Publisher, 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 Publisher 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.
17. 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.
18. MARKETING; PRESS RELEASES
Publisher shall not release any information regarding Ads, or any Advertiser’s or 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 relationship with, Publisher for marketing and promotional purposes. No press releases or general public announcements shall be made without the mutual consent of Moasis and Publisher.
19. FORCE MAJEURE
Neither party shall be liable by reason of any failure or delay in the performance of its obligations hereunder for any cause beyond the reasonable control of such party, including but not limited to electrical outages, failure of Internet service providers, failure of mobile service providers, default due to Internet disruption, riots, insurrection, acts of terrorism, war (or similar), fires, flood, earthquakes, explosions, and other acts of God.
20. SURVIVAL; 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 event. Each party acknowledges that the provisions of this 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 this Agreement conflicts with the law under which the Agreement is to be construed, or if any such provision is held invalid or unenforceable by an arbitrator or a court with jurisdiction over the parties, 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.
21. REMEDIES; 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 of a breach of any provision shall not waive either the provision itself or any subsequent breach.