Please read the following very carefully. By accessing and using an account and electing to participate in the MoreCommision Publisher network (or continuing to participate following any posted or notified revision of any part of the agreement), you, as “Publisher,” represent, warrant and covenant that you are able to agree and enter into and perform the obligations set forth in this agreement as and pertaining to “Publisher” and you are and will be bound by this agreement. If you work for or represent a Publisher or other entity that is the “Publisher” for the purposes of this agreement, you further represent and warrant that you are authorized to agree to and perform this agreement on behalf of such Publisher or entity.
This Publisher Network Participation Agreement (“Agreement”) is made by and between you as “Publisher” and MoreCommision Advertising LLC (MoreCommision)each a “party” and together the “parties”. In consideration of the terms hereof, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
1. Agreement and Terms of Appointment
Publisher agrees to participate as part of MoreCommision’ s network of publishers (the “MoreCommision Publisher Network”), and Publisher hereby appoints MoreCommision, together with any of MoreCommision’ s affiliates including MoreCommision Media Inc., MoreCommision Media AB, MoreCommision Media AS, MoreCommision Media GmbH, MoreCommision Media Pte Ltd, MoreCommision Media Pty Ltd, MoreCommision Media KK and MoreCommision Media Limited (each an “MoreCommision Affiliate”), as Publisher’s nonexclusive agent with respect to provision of advertising of all types (“ Advertising Placements”).
MoreCommision will have the right to sell Publisher’s advertising placement inventory, and Publisher agrees to make such inventory available for MoreCommision’ s Advertising Placements on websites and/or other online offerings owned or controlled by Publisher, or upon which Publisher has the contractual right to serve advertising (each such site or other online offering, individually or collectively, the “Publisher’s Sites”). MoreCommision has the right, though not the obligation, to review and approve each Publisher’s Site(s) (including the relevant advertising placement inventory being made available by Publisher thereon).
Publisher acknowledges that either MoreCommision or the applicable advertising client may at any time elect or decide to take down or terminate further use of an Advertising Placement with or without cause. Publisher may notify MoreCommision of its desire to take down or refuse to run a particular Advertising Placement or to feature the Advertising Placements of a particular advertising client, and MoreCommision will use its commercially reasonable endeavors to adhere to such take down or block requests, provided Publisher may be required to fulfill any prior inventory commitment made to MoreCommision by running alternative Advertising Placements.
2. Payment Terms.
To be paid, Publisher will submit written invoices to “MoreCommision Advertising LLC” (for the attention of the Accounting Department at 2301 Blake St, Denver, CO, 80205 or successor address) solely for the amount of “revenue” stated in Publisher Account Area unless otherwise agreed in writing by Publisher and MoreCommision. No invoice may be submitted by Publisher for any Advertising Placements prior to when such “revenue” amount is posted in Publisher’s Account Area and in any event no sooner than the end of the calendar month in which such Advertising Placements occurred.
Publisher will be paid within forty-five (45) days of receipt by MoreCommision Advertising LLC of such invoice, following the end of the month in which such invoice is received by MoreCommision. MoreCommision has the right to set off, claw back or charge back any amounts Publisher may owe to MoreCommision, any of its affiliates or any of MoreCommision’ s advertising client(s) against any amounts payable or otherwise owing to Publisher or in Publisher’s account. For the avoidance of doubt, each of MoreCommision and Publisher is responsible for any charges imposed by its own bank.
If Publisher disputes any payment made under the Advertising Placement, Publisher must notify MoreCommision in writing within thirty (30) days of any such payment, and any failure to do so within such thirty (30) day period shall be deemed a waiver by Publisher of any claim relating to any such disputed payment. Notwithstanding anything to the contrary contained herein, MoreCommision may, but shall have no obligation or liability to, pay any amounts if an invoice is not received by MoreCommision within six (6) months of the end of the month in which the relevant Advertising Placements ran on Publisher’s Sites.
All payments due to Publisher under this Agreement are exclusive of taxes (other than MoreCommision’ s income taxes), duties, levies, tariffs, and other governmental charges (including, without limitation, VAT) (collectively, “Taxes”). Publisher will be responsible for payment of all Taxes and any related interest and penalties resulting from any payments made hereunder, other than any taxes based on MoreCommision’ s net income. MoreCommision may be obligated by law to obtain tax information from Publisher and payments to Publisher may be withheld until Publisher provide this information or otherwise satisfy MoreCommision that Publisher is not a person from whom MoreCommision is required to obtain tax information or, if required by applicable law, may be subject to tax withholding.
4. Use of Information.
MoreCommision may use all information which Publisher provides or MoreCommision otherwise collects about Publisher, including site demographics, personal contact, bio, payment and other personal and non-personal information.
MoreCommision has absolute and sole discretion for measuring results including impressions, unique clicks, views, engagements and/or other activity in relation to any Advertising Placements displayed on Publisher’s Sites, and calculating any payments, if any, owed or owing by any of MoreCommision’ s advertising clients for any performance on Publisher’s Sites. MoreCommision reserves the right to adjust or disqualify Publisher’s or other participants’ measurements or statistics to account for, among other things, invalid activity, enforcement of contractual terms, and/or statistical errors. Publisher acknowledges that Advertising Placements and associated campaigns may be subject to frequency cap limits which may be set to MoreCommision’ s specifications in MoreCommision’ s sole discretion for each such campaign.
MoreCommision may use a third-party ad tracking service (including if required to do so by agreement with an advertising client or its agency or affiliate). In the case of discrepancies exceeding ten percent (10%) during a relevant invoice period, the parties will use reasonable good faith efforts to reconcile and resolve the discrepancy. MoreCommision may engage Publisher to reach a specified target audience (e.g., based on demographic, contextual, behavioral or other feature) for certain Advertising Placements, in which case Publisher agrees to deliver, and will be measured by MoreCommision for, only for those results that actually meet such specified target with deviations of no more than ten percent (10%) (or such other amount as may be agreed in writing) of the total results measured as determined by MoreCommision in its sole discretion.
Except as expressly permitted in connection with the performance of this Agreement, each of MoreCommision and Publisher (each, a “Receiving Party”) agrees not to disclose or use any information either designated by the other party (each, a “Disclosing Party”) as “Confidential” or an equivalent designation, or which would reasonably be deemed confidential or proprietary (“Confidential Information”) of the Disclosing Party, without the Disclosing Party’s prior written consent. No Receiving Party shall use any Disclosing Party’s Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Agreement. Each Receiving Party undertakes that it shall not at any time during this Agreement disclose to any person any Confidential Information, except that each Receiving Party may disclose the Disclosing Party’s Confidential Information: (a) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this Agreement. Each Receiving Party shall ensure that its employees, officers, representatives or advisers to whom it discloses the Disclosing Party’s Confidential Information comply with this Section 9. For the avoidance of doubt, MoreCommision’ s Confidential Information includes (without limitation): (a) commercial information relating to Advertising Placements, MoreCommision’ s advertising clients, including information about payments, payment history, rates, pricing, metrics, measurements, targets and other specifications of any Advertising Placement or other advertising or promotional efforts relating to MoreCommision’ s advertising client(s); (b) all MoreCommision software, technology, programming, specifications, materials, guidelines, documentation, images and screenshots relating to any Advertising Placement, or the offerings on the Publisher’s Account Area and elsewhere on the MoreCommision Activate console; and (c) statistics and other information relating to a Publisher Site’s performance in any Advertising Placement. The term “Confidential Information” does not include information that (i) has become publicly known through no breach by Receiving Party; (ii) is independently developed without access to Confidential Information, as evidenced in writing; or (iii) is rightfully received by the Receiving Party from a third party without any confidentiality obligation.
Either party may terminate this Agreement (a) upon a breach by the other party of this Agreement upon at least Fifteen (15) business days’ prior written notice to such breaching party unless such breach is waived by the non-breaching party or substantively cured within such Fifteen-(15)-business-day period or (b) if the other party enters into liquidation or becomes insolvent or makes an assignment for the benefit of its creditors, or if a receiver is appointed for it or its assets, or if any bona fide petition is filed by or against it seeking its liquidation or an adjudication of its insolvency or its adjudication as bankrupt or the appointment of a receiver for it or its assets, subject in all cases to applicable law.
In the event MoreCommision enters into agreements with MoreCommision’ s advertising clients that provide for placement or display of Advertising Placements through Publisher’s Sites and/or the provision of services beyond the Term, then notwithstanding anything to the contrary set forth in this Agreement, this Agreement shall continue to apply to such serving of Advertising Placements on Publisher’s Site(s) or performance of such services, and the term of this Agreement shall be deemed extended with respect to such placements and services.
MoreCommision reserves the right to terminate, with or without effective notice, any Publisher whose participation either (a) has not generated a sufficient number of valid views or engagements, as applicable, in relation to Advertising Placements (in each case as measured and tracked by MoreCommision) for a period of two (2) months or more or (b) has been inactive for more than three (3) months based on MoreCommision’ s determination based on consideration such as lack of activity in Publisher’s Account Area, failure to submit invoices, non-removal of Advertising Placements or any other circumstances signifying Publisher’s cessation of business or of participation in the MoreCommision’ s Publisher Network.
8. Limitations of Liability
Except for either party’s confidentiality and indemnification obligations or its breach of non-circumvention, non-solicitation or non-compete obligations, in no event shall either party be liable under this agreement or any exhibit, schedule or other attachment hereto, whether in tort (including negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising hereunder. Notwithstanding anything to the contrary contained herein or otherwise, each party’s aggregate liability to the other party under this agreement is limited to the net amount for any claim paid or payable by MoreCommision to publisher during the three-month period preceding the date of such claim.
9.Representations and Warranties; Indemnification
Each of the undersigned parties represents, warrants and covenants that it has all necessary rights, power, and authority to enter into and perform this Agreement. Further, Publisher represents, warrants and covenants that: (a) it is authorized to act on behalf of each of Publisher’s Sites for the purposes of performing this Agreement, displaying the MoreCommision Media Player and Advertising Placements and participating in the MoreCommision Publisher Network; (b) it complies, and will continue to comply with all Applicable Laws; and (c) all content on any of Publisher’s Sites is legal to distribute in the manner and locations as distributed and that the Publisher owns or has legal right to use any and all copyrighted material.
Each party agrees to indemnify, defend and hold the other party, its agents, affiliates, subsidiaries, directors, officers, employees, and applicable third parties (including advertising clients, syndication partners, licensors, licensees, consultants and contractors, agents and representatives) (collectively, the “Indemnified Persons”) harmless from and against any and all third party claims, liability, loss, and expense (including damage awards, settlement amounts, and reasonable legal fees), brought against any such Indemnified Persons, arising out of, related to or which may arise from: (a) in the case of the Publisher as the indemnifying party, the operation of Publisher’s Sites, MoreCommision’ s authorized use of any Publisher’s materials including any materials that appear on or within Publisher’s Sites, any breach by Publisher of its representations, warranties and other obligations under this Agreement, or any violation of any applicable law or any other obligations to which Publisher are bound; and (b) in the case of MoreCommision as indemnifying party, MoreCommision’ s gross negligence or willful misconduct.
Force Majeure: Neither party shall have any liability for any failure or delay resulting from any condition beyond the reasonable control of such party, including governmental action or acts of terrorism, earthquake or other acts of God, labor conditions, and power failures.
Publicity. Neither party will use the other party’s name, logo, trademarks or service marks in any press release or any other public announcement without the prior written approval of such other party. Nothing in the Agreement shall prevent either party from making any statement about its business relationship with the other within the scope of this Agreement or otherwise making public or private statements in the normal course of its business that do not disclose any MoreCommision Confidential Information. The parties will not publicly or privately disparage MoreCommision or any of its affiliates or its products or services or business, nor engage in any action or practice that devalues or reflects poorly on MoreCommision or its reputation or goodwill. Notwithstanding the foregoing, MoreCommision may, and is hereby granted the right by Publisher to, use Publisher name and logo in presentations, marketing materials, customer lists, financial reports, and website listings of customers. No Agency: Publisher will not misrepresent or embellish the relationship between MoreCommision and Publisher (including by expressing or implying that MoreCommision supports, sponsors, endorses, or contributes to any charity or other cause), or express or imply any relationship or affiliation between MoreCommision and Publisher or any other person or entity except as expressly permitted by the Agreement. The relationship between MoreCommision and Publisher is not one of a legal partnership relationship but is one of independent contractors.
Governing Law: The Agreement and any non-contractual obligations arising from or in connection with it shall be governed by the laws of the state of Colorado. Any dispute or claim arising out of or in connection with the Agreement or any non-contractual obligation arising from or in connection with it shall be adjudicated in the courts of the state of Colorado, USA
Non-Assignment: Publisher may not resell, assign, or transfer any of Publisher rights hereunder. Any such attempt may result in termination of this Agreement, without liability to MoreCommision. Notwithstanding the foregoing, MoreCommision may assign this Agreement either (x) in whole or in severable part, to any affiliate at any time without notice (including such that the assigning entity has no further rights and obligations and the assignee entity assumes all rights and obligations or such that both the assignee and assignor have full rights and obligations severally under this Agreement) or (y) in connection with any corporate reorganization, stock purchase, merger, or sale of all or substantially all of the business and assets associated with the subject matter of the Agreement.
Entire Agreement: This Agreement constitute the entire agreement between the parties with respect to the subject matter hereof. Any modifications to this Agreement or any such exhibit, schedule or attachment must be made in a written agreement executed by both parties. The failure to require performance of any provision shall not affect a party’s right to require performance at any time thereafter, nor shall a waiver of any breach or default of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself. The words “includes” or “including” shall mean “includes without limitation” or “including without limitation.” If any provision herein is held unenforceable, then such provision will be modified to reflect the parties’ intention, and the remaining provisions of this Agreement will remain in full force and effect.