Adotic Media Standard Terms and Conditions for
Adotic Incorporated ("Adotic"), a New Delhi Corporation,
and Publisher, enter into this Publisher Network Agreement ("Agreement") to
establish the terms and conditions by which Publisher may enter the Adotic
Network and display advertisements on behalf of Adotic Customers ("Advertisers"
"Ad" or "Creative" means the graphic or text file(s) provided to Publisher to
market on behalf of Advertiser and/or Adotic.
"Advertiser" means Adotic and/or the advertiser or advertising agency providing
Ads to Adotic for use on Publisher's Website(s) as specified herein.
"Approved Websites" means the Publisher"s domain(s) and/or specific root URLs
approved by Adotic.
"Adotic Code" means pixels, intellectual property or
other computer code provided by Adotic for use by Publisher.
"Adotic Network" means Adotic's affiliated group of
third-party Websites by which Adotic may insert Ads.
"Adotic System" refers to the collection of
software, including ad serving and measurement technologies that Adotic uses to
provide services to both advertisers and publishers.
"CPM" means a campaign for which Publisher shall be paid on a Cost Per Thousand
Impressions basis as measured by Adotic.
"Click, Click-Thru or Click-Through" means the activation of a hyperlink using a
mouse or other input device. The click-through is essential to the interactivity
of online advertising.
"Click-Through Rate" or "CTR" means the rate of activated ads to total ads
"Impressions" means the number of times an Ad is served to, and received by, a
unique visitor on Publisher's Website or other media as measured by Adotic.
"Incentivized Traffic" means a Website where Ads are placed where Users have
some sort of incentive to click through on Ads.
"Network IP" means the Ads, Adotic Code or other intellectual property made
available to Publisher in connection with its performance under this Agreement.
"Prohibited Conduct" means conduct, during the course of performance of this
Agreement that is listed or related to the proscribed conduct listed in Section
"Publisher Media" shall mean the Website, search engine or other electronic
media on which Publisher places Ads.
"Unique Click" means the number of times, as recorded by Adotic"s server, a User
viewing Publisher's Media, as identified by a cookie or IP address, clicks on a
Creative, provided however, that a click on a specific Creative by a particular
User shall only be counted as a Unique Click once every 24-hour period.
"User" means any person accessing Publisher Media.
"Website" means an HTML document containing a set of information available via
Adotic AND PUBLISHER AGREE AS FOLLOWS:
1. Adotic Network
(a) Membership: Membership in the Network is subject to prior approval by
Adotic. Adotic reserves the right to refuse service to any new or existing
Publisher for any reason, in its sole discretion. Approval of membership in the
Network is limited only to the domains and/or specific root URLs for which
Publisher has applied for approval by Adotic. Adotic reserves the right, in its
sole discretion and without liability, to reject, omit or exclude any Publisher
or Website for any reason at any time with or without notice to the Publisher
and regardless of whether such Publisher or Website was previously accepted.
Without limiting the foregoing, Adotic reserves the right to require a potential
or existing Publisher to submit detailed descriptions or explanations of the
Publisher"s Website(s) or application(s) functionality and back-end technology
through a questionnaire or survey. Refusal to participate or answers deemed
unsatisfactory constitutes grounds for non-acceptance or termination from the
Network. This Agreement is voidable by Adotic immediately if Publisher fails to
disclose, conceals or misrepresents itself in any way. Unless otherwise advised
due to technological issues by Adotic, any person, Publisher, or affiliated
group may have only one account, however, each account may include multiple
Websites/domains. In the event that a Publisher signs up more than one
Website/domain, and it has been approved by Adotic, each and every additional
Website/domain is obligated and bound by these same terms and conditions. In any
event, Adotic reserves the right to reject or approve any additional Website(s),
and is under no obligation to accept any Website(s), even if the additional
Website(s) is the property of an already approved Publisher. All activity for a
given account will be consolidated into one report.
(b) Adotic Websites: For purposes of this Agreement, all Websites that are
owned, operated or hosted by or on behalf of Adotic, including, without
limitation, Adotic's branded Website at http://www.adotic.com, are referred to
herein collectively as the "Adotic Websites." You agree that you will not use
the Adotic Websites or any content therein or data obtained therefrom for any
purposes other than to fulfill this Agreement and that you will not disseminate
any of the information contained on Adotic Websites, without prior consent from
Adotic. You agree that you will not use any automated means, including, without
limitation, agents, robots, scripts, or spiders, to access or manage your
account with Adotic or to monitor or copy the Adotic Websites or the content
contained therein except via automated means expressly made available by Adotic,
if any, or authorized in advance and in writing by Adotic (for example,
Adotic-approved third-party tools and services). You will not interfere or
attempt to interfere with the proper working of the Adotic Websites or any
program thereon, or the Adotic System. Without limitation to the foregoing, you
further agree that you will not take any action that imposes an unreasonable or
disproportionately large load on the Adotic Websites, any programs thereon, or
Adotic's infrastructure, as determined by Adotic.
(c) Services: Publisher understands and agrees that from time to time the Adotic
System hereunder may be inaccessible, unavailable or inoperable for any reason,
including, without limitation: (i) equipment malfunctions; (ii) periodic
maintenance procedures or repairs which Adotic may undertake from time to time;
or (iii) causes beyond the control of Adotic or which are not reasonably
foreseeable by Adotic, including, without limitation, 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. While Adotic will attempt to provide the services
on a continuous basis, Publisher acknowledges and agrees that Adotic has no
control over the availability of the services on a continuous or uninterrupted
basis. Publisher also understands and agrees that Adotic is not responsible for
the functionality of any third-party Website or interface. Terms of this
Agreement are subject to Adotic hardware, software, and bandwidth traffic
limitations. Failure to deliver because of technical difficulties does not
represent a failure to meet the obligations of this Agreement. Adotic reserves
the right to discontinue offering any of the Adotic Systems and/or Adotic
Websites at any time. Except as otherwise specified by Adotic, Publisher agrees
that it will direct all communications relating to any Adotic Website or your
participation therein directly to Adotic and not to any other entity.
2. Website Content and Prohibited Conduct
(a) Pre-approval Required: Publishers that have Websites that relate to or have
any characteristic of the following shall be approved on a case by case basis: (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: Adotic does not accept Websites that produce, relate to
or have characteristics of Prohibited Conduct. "Prohibited Conduct" is defined
(i) Ad Placement & Tracking: Publisher shall not:
(1) Place Creatives or Ads in emails without prior consent and tracking from
Adotic; (2) Intentionally place Creatives on blank web pages or on web pages
with no content; (3) Stack Creatives (e.g. place on top of one another so that
more than 2 ads are next to each other); (4) Place Creatives on non-approved
Websites or web pages, or in such a fashion that may be deceptive to the User;
(5) Incentivize offers or create the appearance to incentivize offers; (6) 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"); (7)
Place misleading statements near the Ad (i.e., "You will win $5,000."); (8)
Redirect traffic to a Website other than that listed by the particular
Advertiser; (9) Ask Users to take advantage of other Ads or offers other than
those listed by the particular Advertiser; (10) Serve Creatives, or drive
traffic to such Creatives, using any downloadable applications without the prior
written approval of Adotic, which, if provided, is subject in each case to the
following condition: Creatives 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
Creatives at anytime when the downloaded application is not active is strictly
prohibited and grounds for immediate termination without pay; (11) Use invisible
methods to generate impressions, clicks, or transactions that are not initiated
by the affirmative action of the end-user; (12) 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 Adotic that allows Adotic to measure ad performance and provide
(ii) Websites: Publisher shall not place any Creative, Ads or Network IP on Web
Sites that contain, promote, reference or have links to: (1) profanity, sexually
explicit materials, hate material, promote 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
Adotic; (2) software piracy (warez, cracking, etc.), hacking, phreaking,
emulators, ROM"s, or illegal MP3 activity.; (3) illegal activities, deceptive
practices or violations of the intellectual property or privacy rights of
others; (4) Websites under construction, hosted by a free service, personal home
pages, or do not own the domain they are under; (5) 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; (6) Promote 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 (i) 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 and obtaining
affirmative consent; (ii) prevent a computer User"s reasonable efforts to block
the installation of or disable or remove unwanted software; (iii) remove or
disable any security, anti-spyware or anti-virus technology on a User"s
computer; (iv) send email through a User"s computer without prior authorization;
(v) open multiple, sequential, stand-alone advertisements in the consumer"s
Internet browser which cannot be closed without closing the Internet browser or
shutting down the computer or (vi) other similar activities that are prohibited
by applicable law.
(iii). Search & Miscellaneous: Publisher shall not: (1) Violate guidelines of
any search engines being utilized; (2) Engage in search engine spam, doorway
pages, cloaking, etc.; (3) Bid on any trademarked name or terms in any
PPC/"keyword"/"adword"/campaign; (4) Conduct search Ads falsely suggesting a
link between Adotic and a third- party or otherwise infringing on a
third-party"s intellectual property rights; (5) Engage in any advertising via
facsimile or telemarketing; (6) Engage in any misleading or deceptive conduct.
3. Ad Content and Placement
(a) Compliance with Industry Standards: Publisher agrees to undertake and
complete the services as specified by the Adotic Network, including all Ad
placement restrictions or channels specified, 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 merchants included in the Website.
(b) No Modifications to Creative, Code or Network IP: Except as permitted under
this Agreement, Publisher may not alter, copy, modify, take, sell, re-use, or
divulge in any manner any Creative, Network IP or computer code provided by
Adotic without Adotic"s prior written consent. Publisher may not copy Adotic's
Ads and display them from Publisher's Website directly; redirect traffic to a
Website other than that listed by Adotic or the Advertiser; or ask Users to take
advantage of other Ads or offers other than those listed by Adotic or
Advertiser. Any Adotic content which is copied, changed or altered without prior
written consent will result in non-payment for the campaign and may result in
termination. Any approved modifications to Adotic Code or Network IP shall be
owned solely by Adotic.
(c) Requirements: Publisher shall be solely responsible for (i) managing its
advertising content exclusions in the Adotic interface, and (ii) placing Ads on
the Publisher Media, which placement shall be subject to the terms and
conditions of this Agreement. Ads may only be placed on Approved Websites.
Adotic pop-up or pop-under window cannot be launched from Websites that launch
more than a total of one pop window, including the Adotic pop. Skyscrapers or
wide skyscrapers and half page formats cannot be placed on the same page.
Publisher will not place ads on blank pages, on pages with no content, on top of
one another, on non-approved Websites, or in such a fashion that may be
deceptive to the visitor. Publisher agrees to use the Adotic Code provided by
Adotic for displaying an Ad not more than ONCE per page view. Placement of ads
in email must be done after notifying Adotic so appropriate tracking measures
can be put in place.
(d) Default Ads: Publisher acknowledges and agrees that Adotic may not be able
to fill 100% of advertising requests sent to its servers with paying Ads. If
Publisher chooses not to specify a default redirect ad, Adotic will display
so-called 'house' and/or 'AdCouncil' ads on Publisher's Website when paid
advertising is unavailable. Adotic may also display so-called 'house' and/or 'AdCouncil'
ads on Publisher's Websites when technical difficulties require it. So-called
'house' and 'AdCouncil' ads are not paid advertising. Under no circumstances
does Adotic guarantee to provide any percent fill of paid advertising to a
4. Network Quality
Adotic will not tolerate or accept any activities it deems harmful or
potentially damaging to its reputation and/or business, or that of its customers
and/or clients including but not limited to the activities stated in this
Agreement. Adotic employs individuals for the express purpose of monitoring the
Publisher's Websites within our network to ensure that our customers and clients
are receiving the highest quality campaigns. Adotic has also developed an
advanced anti-fraud system and regularly audits Publisher's traffic. Publishers
that commit fraudulent activities, including false clicks, false impressions,
and incentivized clicks, will have their account permanently removed from the
Network and may not be compensated for fraudulent traffic. Adotic has several
fraud mechanisms at its disposal that will detect most forms within a few days
of the initial activity. All Creatives must be served from a Adotic server or
serving location, or through a Adotic approved 3rd-party-hosted server. Stored
images that are loaded from a different location will not count towards any
statistic or payment.
5. Proprietary Rights
(a) Licenses: At the agreed upon pay-out price and provided that Publisher
complies with all provisions of this Agreement, Adotic hereby grants to
Publisher a nonexclusive, limited, revocable license to use, execute, and
display the Network IP solely for purposes of performing its other obligations
hereunder. Except for the limited license expressly granted in this Section,
nothing in this Agreement shall be construed as Adotic granting Publisher any
right, title or interest in Network IP. Publisher acknowledges and agrees that
Adotic 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. Publisher"s use of the Network IP or the results created
thereby, or disseminating or distributing any of this information except as
expressly permitted by this Agreement 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
Adotic and Publisher hereunder, each party shall own and shall retain all right,
title and interest in its trade names, logos, trademarks, service marks, trade
dress, Internet domain names, 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
or which may be developed and/or used by it in the future ("Intellectual
Property"). Except as provided in this Agreement, neither party may distribute,
sell, reproduce, publish, display, perform, prepare derivative works or
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, personally identifiable information 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 Adotic from such data is the sole and exclusive
property of Advertiser and Adotic and is considered Confidential Information
pursuant to this Agreement. Adotic and/or its Advertisers, in their sole
discretion, shall have the right to 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
information, or any portion thereof, to any third-party. Unless otherwise agreed
to in writing by the parties, any other use of such information is strictly
6. Representations and Warranties
(a) Publisher Responsibility: The parties hereby acknowledge that Publisher is
solely responsible for the method of dissemination of the campaigns, and that
Adotic will not have any control over the method of dissemination and is relying
entirely on these warranties made by Publisher.
(b) Publisher Warranties: Publisher represents, warrants, covenants and
acknowledges that (i) it will provide and maintain the resources, personnel and
facilities suitable to perform its obligations under the Agreement; (ii) it will
comply with all applicable federal (national), state and local laws and
regulations including, without limitation, laws relating to advertising, the
Internet, privacy and unfair business practices; (iii) it will not engage in
from time to time; (v) that Publisher is at least 18 years of age on the
effective date of this Agreement; and (vi) that Adotic does not make any
specific or implied promises as to the successful outcome of any campaigns.
(c) 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) neither the execution,
delivery, nor performance of this Agreement will 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) such party acknowledges that the other
party makes no representations, warranties, or agreements related to the subject
matter hereof that are not expressly provided for in the Agreement.
(a) Obligations: Internet consumer privacy is of paramount importance to Adotic,
its subsidiaries, and its customers. Adotic is committed to protecting the
privacy of consumers, clients, and Advertisers, and to do its part to maintain
the integrity of the Internet. Publisher therefore affirms and attests that it
will adhere to fair information collection practices with respect to its
performance under this Agreement.
(b) Privacy Requirements: Publisher agrees to the following and must clearly
compliance with all federal (national, in the US compliant with FTC) guidelines
and any other applicable laws, rules and regulations with respect to online
privacy; (ii) identifies the nature and scope of the collection and use of
information gathered by Publisher and offers the User an opportunity to opt out
from such collection and use of the data; and (iii) contain language materially
similar to the following:
"We have contracted with Adotic to monitor certain pages of our website for the
purpose of reporting website traffic, statistics, advertisement 'click-throughs',
and/or other activities on our website. Where authorized by us, Adotic may use
cookies, web beacons, and/or other monitoring technologies to compile anonymous
statistics about our website visitors. Adotic may use this data and statistics
to track users and serve advertising based on the collected data and statistics.
However, no personally identifiable information is collected by or transferred
to any party other than the Advertiser."
(c) Cookies: Publisher acknowledges that (i) cookies are important devices for
measuring advertising effectiveness and ensuring a robust online advertising
industry and (ii) efforts are required to increase User awareness about the use
of cookies and their role in providing free content and other benefits to Users.
Publisher agrees to take such steps as may be commercially reasonable and
appropriate to promote User awareness about cookies or similar devices as may be
identified by Adotic.
(a) Payment Rate: Adotic reserves the right to set campaign rates, which may
vary with market conditions. Publishers will typically be paid within forty-five
(45) business days after the end-of-month. Do not invoice Adotic; all Publisher
invoices are discarded. Publishers will be paid at the account level. All
accounts will be settled in US dollars or Indian Rupees (INR) depending on where
the Publisher is based. No check will be issued for any amount less than $25US
or equivalent INR ("Minimum Payment Threshold"). All unpaid earnings will
rollover to the next pay period. Any Publisher account that goes unpaid for six
(6) months becomes subject to immediate payoff and dismissal from the Network.
As a condition to Adotic's obligation to make payments hereunder to Publisher,
Publisher must have on file with Adotic a completed and accurate W-9 (for
US-based Publisher's) or a completed and accurate W-8 (for non-US-based
Publisher's). Publisher payments will be withheld until the appropriate taxation
documents are received by Adotic. If the required tax documents are not on file
with Adotic within three months of the date of a scheduled payment, Adotic may
charge a monthly administrative fee, representing Adotic"s cost of establishing
and maintaining Publisher's account, equal to 25% of the original balance. All
payments are based on actuals as defined, accounted and audited by Adotic.
Adotic reserves the absolute right to withhold payment from accounts or
Publishers that violate any of the terms and conditions set forth herein. Adotic
will determine, in its sole discretion, whether acts or omissions are deceptive,
fraudulent or violate this Agreement. . Examples of such acts may include,
without limitation, clicks without referring URLs, extraordinary high numbers of
repeat clicks, and clicks from non-approved root URLs.
(b) Breach or Fraud: If any Publisher violates or refuses to fulfill its
responsibilities, or commits fraudulent activity, Adotic reserves the right to
withhold payment and take appropriate legal action.
(c) Calculation: Calculation of Publisher earnings, including Impressions and
click through numbers, shall be in Adotic"s sole discretion. In the event
Publisher disagrees with any such calculation, Publisher shall immediately send
a written request to Adotic detailing, with specificity, Publisher's concerns.
Thereafter, Adotic will provide Publisher with an explanation or, if such
calculations are determined by Adotic to be incorrect, an adjustment. Adotic"s
calculations shall be final and binding. In the event no adjustment is
necessary, Publisher shall reimburse Adotic for its expenses in responding to
Publisher's requests under this Section if it exceeds USD$100.
Publisher is solely responsible for any legal liability arising out of or
relating to (i) Publisher's Website(s), (ii) any material to which Users can
link through Publisher's Website(s), and/or (iii) any consumer and/or
governmental/regulatory complaint arising out of any campaign conducted by
Publisher, including but not limited to any spam or fraud complaint and/or any
complaint relating to failure to have proper permission to conduct such campaign
to the consumer. Publisher shall indemnify, defend, and hold harmless Adotic and
its officers, directors, employees, agents, shareholders, partners, affiliates,
representatives, agents and Advertisers (collectively "Adotic Parties") harmless
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 Adotic Parties which, if true, would constitute
or relate to any claims, suits, or proceedings for (a) 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 Website(s); (b) any breach by Publisher of any duty, representation
or warranty under this Agreement; (c) any breach by Adotic of any duty,
representation, or warranty to provide Ad(s) for placement on Publisher's
Website(s) due to any breach by Publisher of this Agreement; (d) a contaminated
file, virus, worm, or Trojan horse originating from the Publisher's Website(s);
or (e) gross negligence or willful misconduct by Publisher.
10. Limitations of Warranties and Liability
(a) Disclaimer of Warranties: ALL SERVICES PROVIDED BY THE Adotic ARE PROVIDED
ON AN "AS IS" "AS AVAILABLE" BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT
TO APPLICABLE LAW, Adotic MAKES NO WARRANTIES, GUARANTEES, REPRESENTATIONS,
PROMISES, STATEMENTS, ESTIMATES, CONDITIONS, OR OTHER INDUCEMENTS, EXPRESS,
IMPLIED, ORAL, WRITTEN, OR OTHERWISE EXCEPT AS EXPRESSLY SET FORTH HEREIN.
Adotic 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: UNDER NO CIRCUMSTANCES SHALL Adotic BE LIABLE TO
PUBLISHER FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES
(EVEN IF Adotic HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING
FROM ANY ASPECT OF THE ADVERTISING RELATIONSHIP PROVIDED HEREIN. IN NO EVENT
SHALL Adotic"S TOTAL OBLIGATIONS OR LIABILITY HEREUNDER EXCEED THE LESSER OF THE
SPECIFIC ADVERTISING CAMPAIGN IN QUESTION OR ONE THOUSDAND DOLLARS ($1,000.00).
REGARDLESS OF ANY LAW TO THE CONTRARY, NO ACTION, SUIT OR PROCEEDING SHALL BE
BROUGHT AGAINST Adotic MORE THAN ONE (1) YEAR AFTER THE DATE UPON WHICH THE
(c) Consideration: PUBLISHER ACKNOWLEDGES THAT Adotic 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 THESE TERMS 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,
SO 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 distributes Ads for Adotic. Adotic reserves the right to
terminate any Publisher from the Network at any time, with or without cause.
(b) Post-termination: Upon termination, Publisher agrees to immediately remove
from the Websites any and all Adotic Code and Network IP supplied to Publisher
by Adotic. Publisher will be paid, in the next scheduled payment cycle following
termination, all legitimate, non-fraudulently accrued, earnings due up to the
time of termination. Upon termination all ties to referrals will be permanently
severed and Publisher will not receive nor be entitled to receive future
referral commissions hereunder.
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"). Adotic"s campaign rates are
considered confidential. 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 no 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 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 Adotic, Publisher must
destroy or return to Adotic any Confidential Information provided by Adotic
under this Agreement.
13. Choice of Law and Attorneys" Fees
This Agreement is governed by the laws of the State of New Delhi (USA), except
for its conflict of law provisions. The exclusive forum for any actions related
to this Agreement shall be in the state courts, and, to the extent that federal
courts have exclusive jurisdiction, in New Delhi. The parties consent to such
venue and jurisdiction, waive any right to a 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) or by U.S.
mail with delivery receipt to the last address provided by Publisher. The
application of the United Nations Convention on the International Sale of Goods
is expressly excluded. A party that primarily prevails in an action brought
under this Agreement is entitled to recover from the other party its reasonable
attorneys fees and costs.
14. Entire Agreement and Modification
amended from time to time and which is incorporated herein by reference),
contains the entire understanding and agreement of the parties and there have
been no promises, representations, agreements, warranties or undertakings by
either of the parties, either oral or written, except as stated in this
Agreement. This Agreement may only be altered, amended or modified by an
instrument that is assented to by each party to this Agreement by verifiable
means, including without limitation by written instrument signed by the parties
or through a "click through" acknowledgement of assent. No interlineations to
this Agreement shall be binding unless initialed by both parties.
Notwithstanding the foregoing, Adotic shall have the right to change, modify or
amend ("Change") this Agreement, in whole or in part, by posting a revised
Agreement at least five (5) days prior to the effective date of such Change.
Publisher"s continued use of the Network after the effective date of such Change
shall be deemed Publisher"s acceptance of the revised Agreement. No change,
amendment, or modification of any provision of the Agreement by Publisher will
be valid unless set forth in a written instrument signed by an executive of both
Parties with the corporate authority to do so.
No rights or obligations under this Agreement may be assigned by Publisher
without the prior written consent of Adotic. Any assignment, transfer or
attempted assignment or transfer in violation of this Section shall be void and
of no force and effect. Adotic 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 hereto and their respective permitted
successors and assigns.
16. 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
Publisher shall not release any information regarding Campaigns, Creatives, or
Publishers relationship with Adotic or its customers, including, without
limitation, in press releases or promotional or merchandising materials, without
the prior written consent of Adotic. Adotic shall have the right to reference
and refer to 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 Adotic and Publisher.
18. 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, default due to Internet disruption (including
without limitation denial of service attacks), riots, insurrection, acts of
terrorism, war (or similar), fires, flood, earthquakes, explosions, and other
acts of God.
19. Survival and Severability
Any obligations which 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. 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.
20. 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 which 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 the first 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.