This Publisher T&C ("Agreement") is entered by and between you and the Publisher or entity that you represent (hereinafter referred to as "Publisher", "You" or "Your") along with its affiliates and our entity, details of which are incorporated in the respective Insertion Order along with its affiliates, group Companies (hereinafter referred to as "Company")

INTERPRETATION

Unless the context otherwise requires, this Agreement shall be construed as follows:-

  • 1. In this Agreement, each of the aforesaid shall be individually referred to as a "Party" and collectively referred to as the "Parties".
  • 2. The title of each paragraph is written only for the convenience of reading and does not have any legal or contractual obligations.
  • 3. Any reference to a "person" includes any natural person, partnership, firm, governmental authority, joint venture, association, or other entity (whether or not having separate legal personality).
  • 4. The words "include" and "including" shall not be construed as terms of limitation.
  • 5. References to any statute or provision include a reference to that statute or statutory provision as from time to time amended, extended, re-enacted, or consolidated and to all statutory instruments made pursuant to it.
  • 6. Words denoting the singular shall include the plural and vice versa.
  • 1. Definitions
  • a.“Advertising Materials” means the materials, documents, banners and/or advertisements provided by the Company to the Publisher for promotion under this Agreement during the Term, including but not limited to videos, pictures, text, animations, scripts, symbols, figures, and links etc.
  • b. “Applicable Laws” shall mean any statute, regulation, notification, circular, order, ordinance, requirement, direction, guideline, announcement or other binding action or requirement of any Governmental Authority, which has the force of law in India (or any part thereof) and which directly impact the Services as under this Agreement or such territories where the Publisher publishes the Advertising Materials and/or conducts its Services.
  • c. “Confidential Information” means all the Company’s information, materials, or data disclosed or made available, directly or indirectly, by the Company, its partners, clients, or licensors to the Publisher, whether in written, electronic, oral, visual, or any other form, that is designated as confidential or that reasonably should be understood to be confidential under the circumstances. Confidential Information includes, without limitation:
    • i. All Advertising Materials (as defined in this Agreement), content, creatives, artwork, logos, text, images, videos, multimedia files, campaign assets, marketing and promotional materials, and other content provided for publication, display, or distribution under this Agreement;
    • ii. All information regarding the Company, its partners, or clients products, services, pricing, promotions, strategies, business plans, financial data, client lists, target audiences, performance metrics, user data, analytics, or other operational information;
    • iii. Technical information, including software, source code, applications, platforms, systems, databases, tools, algorithms, interfaces, methods, processes, and technical specifications;
    • iv. Strategic, commercial, or operational information relating to the Company, its partners, or clients, including future projects, campaigns, partnerships, or potential business opportunities;
    • v. information related to the Company’s: (i) technical know-how, technological innovations, operations, financial status, or sales and business plans and strategies, (ii) trade secrets, patent applications, or other intellectual property and (iii) data and reporting available in user interfaces, in each case disclosed by the Company, either directly or indirectly, in writing, drawing, orally or electronically.
    • vi. Any information that the Publisher knows or reasonably should know is proprietary, confidential, or commercially sensitive, regardless of whether it is marked as confidential; and
    • vii. Any analyses, compilations, notes, studies, interpretations, or other materials prepared by the Publisher that contain, reflect, or are derived from any of the above information.
    • viii. Any other information that should reasonably be recognized as confidential information of the Company, whether oral and/or in written form.

Confidential Information includes information provided prior to the execution of this Agreement, information disclosed during the term of this Agreement, and any information that arises in the course of performance of the Publisher’s obligations under this Agreement.

Confidential Information need not to be novel, unique, patentable, copyrightable or constitute a trade secret in order to be designated as Confidential Information. The Publisher acknowledges that the Confidential Information is proprietary to the Company, has been developed and obtained through great efforts by the Company.

  • d. “Cyber Incident” shall mean a breach of a system's security policy in order to affect its integrity or availability and/or the unauthorised access or attempted access to a system or systems.
  • e. “Intellectual Property or IP” shall mean and include the Company’s ideas, concepts, information, materials, processes, techniques, developments, discoveries, software, inventions, improvements, know how, trade or business secrets, granted or ungranted filed patents, proprietary marks, registered and unregistered trademarks, registered and unregistered service marks, registered and unregistered designs, artwork, tools, models, procedures, systems, principles, recipes, formulae, electronic codes, proprietary information whether or not copyrightable or patentable or any written or verbal instructions or comments, trade dress including product package designs, symbols, slogans, emblems, logo, uniforms, merchandise, designs, external and internal building/ outlet design and any combination of the foregoing.
  • f. “Service Fee” shall mean the fee payable by the Company to the Publisher in relation to the specific services provided by the Publisher as per terms of this Agreement.
  • g. “Services” shall mean services as per the Annexure I and/or as discussed between the Parties mutually in writing from time to time (emails permitted).

  • 2. Service and license

Subject to the Publisher’s compliance with the terms hereof, during the Term, Company hereby grants the Publisher a limited, worldwide, non-sublicensable, non-transferable, royalty-free, non-exclusive, revocable license to use the services solely for the purpose of serving Ads through Company collectively, the "Service".

  • 3. Restrictions
    • a. Except as set forth expressly herein or as permitted by the Service, Publisher shall not, and shall not permit any third party, to (a) copy, decompile, disassemble, adapt, translate, create derivatives works of, reverse engineer or attempt to find the underlying code of, the Service ; (b) modify the Service, or insert any code or product, or in any other way manipulate the Service in any way; (c) modify the Services in any way without Company’s prior written consent, (d) sublicense, sell, rent, lease or distribute the Services or bypass any security measure of Company with respect to the Service, (e) distribute the Services on a stand-alone basis, (f) use the Services to create (or facilitate the creation of) any product or service that is competitive with the Service; (g) alter, modify, crop or create derivatives works of the Ads, or any other creative and substantive materials, in whatever format, provided by Company or its Advertisers for the purpose of the delivery of the Ads ("Creative"); or (h) use the Service except for Publisher’s own internal purposes. Publisher releases Company from and waives any and all claims and/or demands against Company in connection with all aspects of the Creative.
    • b. To the extent any of the restrictions set forth above are not enforceable under applicable law, Publisher shall inform the Company in writing prior to engaging in any of the applicable activities.
    • c. Publisher may not use robots, spiders, scraping or other technology to access or use the Service to obtain any information beyond what Company provides to Publisher under the Agreement.
    • d. Publisher may not use the Service to syndicate, mediate or broker campaigns or the distribution of Ads through other third parties or affiliates, without the express written approval of Company. Publisher shall make available to Company, upon request, with any information relating to the Property and any campaign and shall ensure that the distribution or promotion of the Ads is in compliance with the Campaign Conditions.
    • e. The Company reserves the right to terminate this agreement with immediate effect in the event the Publisher is found to be in breach of its obligations under this clause. Publisher agrees to indemnify the Company of any losses, damages or claims which the Company incurs due to the Publisher’s breach of this clause.
  • 4. Warranties
    • a. Mutual Warranties.Each Party represents and warrants that:
      • i)It is duly organized under applicable law and has sufficient authority to enter into this Agreement and that,
      • ii)The execution and performance under this Agreement does not conflict with any contractual obligations such party has to any third party.
    • b. Company Warranties.Company represents and warrants that the Service:
    • i)does not, to the best of its knowledge, infringe the intellectual property rights of any third party.
    • ii) comply with all applicable law and regulations (provided, that with respect to data provided by Publisher to Company, Company’s compliance with applicable law is subject to Publisher’s full compliance with applicable law with respect to such data, including its transfer to, and processing by, Company).
    • iii) does not to the best of its knowledge contain any Malicious Code.
    • c. The Company reserves the right, in its sole discretion and without liability, to reject or remove any Ads or Creative from the Service. Publisher acknowledges that any campaign may be terminated or suspended, whether by Company or its Advertisers, at any time and without notice to Publisher. Publisher hereby acknowledges that Company is providing the Service as an intermediary between Advertisers and Publisher and as such Company shall not be held responsible or liable for any actions or omissions performed or omitted by any third parties (including with respect to the content of the Creative or Ads).
    • d. Publisher Warranties.Publisher represents and warrants that its property:
    • i) does not infringe the intellectual property rights of any third party,
    • ii) does not contain any Objectionable Content, and is not directed to or primarily appeals to children under the age of 13,
    • iii) complies with all applicable laws and regulations, including applicable data protection laws,
    • iv) does not collect, use or transfer the data of end users in any manner not clearly and accurately disclosed pursuant to a privacy policy that complies with applicable law and regulations, and
    • v)does not contain any Malicious Code.
    • vi) Does not employ improper ways and means to deliver Objectives (Clicks, Installs, Activations or Impressions) using either manual cheats, specialized programs, code/s, script/s, bot/s, Trojan/s, emulator/s, or other fraudulent methods. The Publisher shall not deliver Objectives by auto initiation of Video Views, Page Visits, Clicks, Activations and Installs and that these must be a result of user-initiated action. Publisher acknowledges that if Publisher uses any of the above-mentioned improper ways and means to deliver any Objectives then Company has the right to reject all payments where such improper ways and means are detected and/or reasonably suspected and has the sole right to terminate any outstanding order.
  • 5. Intellectual Property
    • a. Publisher shall have all right, title and interest in its Property. Company retains all right, title and interest in the Proprietary Rights in the Service, as well as any derivative therefrom. If Publisher provides Company with any feedback regarding the Service, Company may use all such feedback without restriction. Nothing herein shall be interpreted to provide Publisher any rights in the Service except the limited right to use and receive the Services as set forth herein. The Company or its Advertiser shall own all the rights, title and interests in the Creative or the Advertisement supplied to the Publisher or created by the Publisher for the purpose of this Agreement.
    • b. The Publisher acknowledges and agrees that any and all Intellectual Property including but not limited to Advertising Materials; provided by the Company for publication, display, or promotion under this Agreement are the sole and exclusive property of the Company or its licensors. The Publisher acquires no ownership or other rights in the Intellectual Property except for the limited right to use them strictly in accordance with this Agreement.
    • c. The Publisher shall:
      • i) Use the Intellectual Property solely for the purpose of performing its obligations under this Agreement;
      • ii) Not copy, reproduce, distribute, transmit, modify, adapt, sublicense, sell, or otherwise exploit the Advertising Materials except as expressly authorized in writing by the Company;
      • iii) Implement and maintain reasonable administrative, technical, and organizational measures to safeguard the Advertising Materials against unauthorized access, use, reproduction, distribution, disclosure, or alteration;
      • iv) Restrict access to the Intellectual Property to employees, agents, or subcontractors who need access to perform the Publisher’s obligations and ensure that they are bound by confidentiality and intellectual property obligations no less protective than those in this Agreement;
      • v) Not permit any third party to access, use, or reproduce the Intellectual Property without the Company’s prior written consent; and
      • vi) Immediately notify the Company of any actual, suspected, or threatened unauthorized use, disclosure, or infringement of the Intellectual Property.
  • d. All intellectual property rights, including copyright, trademark, moral rights, design rights, database rights, and any other proprietary rights in and to the Intellectual Property, are expressly reserved by the Company or its licensors. The Company grants the Publisher a limited, non-exclusive, non-transferable license to use the Intellectual Property solely to the extent necessary to perform its obligations under this Agreement and for no other purpose, and only for the duration of this Agreement.
  • e. Upon termination or expiration of this Agreement, or upon the Company’s written request, the Publisher shall promptly return or securely destroy all Advertising Materials, including all copies, reproductions, or derivatives, and certify in writing that it has done so. The Publisher shall indemnify and hold harmless the Company from any claims, damages, losses, or expenses arising from any unauthorized use, reproduction, distribution, disclosure, or infringement of the Advertising Materials.
  • f. The obligations of the Publisher under this clause shall survive the termination or expiration of this Agreement.
  • g. Infringement of Intellectual Property Rights:
    • i) The Publisher shall ensure that any trademark, logo, slogans, marks, labels whether registered or not, shall remain the exclusive property of the Company and /or the Company’s affiliates and shall not be used by the Publisher in the manner other than authorized in writing by the Company for any reason whatsoever.
    • ii) The Publisher shall not copy any printed materials accompanying the Company without express authorization in this Agreement or prior written permission of the Company.
    • iii) During the term of this Agreement, the Publisher agrees that he (i) shall have no right to exploit the Intellectual Property Rights (in whole or in part); and (ii) shall not disclose or license any Technology (in whole or in part) in the to any Person without the prior written consent of the Company.
    • iv) Upon the expiration, termination or cancellation of this Agreement, whether by lapse of time, default or otherwise, Publisher agrees immediately to discontinue all use of the Company’s Intellectual Property and to remove all copies, replicas, reproductions or simulations thereof from its premises including the electronic devices.
    • v) In order to protect the Intellectual Property Rights and the goodwill associated therewith, Publisher shall, unless the Company otherwise consents in writing: (i) Only use the Intellectual Property Rights designated by the Company and only in the manner authorized and permitted by the Company through this Agreement; (ii) The Publisher’s right to use the Intellectual Property Rights is limited to such uses as are authorized under this Agreement, and any unauthorized use thereof shall result into breach of this Agreement.

  • 6. Payment
    • a. Subject to the terms herein, the Company shall make payments to the Publisher subject to the terms communicated to the Publisher, solely in consideration for Approved Transactions. The payments due to Publisher ("Consideration ") shall be solely calculated and based on Company’s tracking systems and/or reports, which shall be considered final and binding, and no other measurements or statistics of any kind shall be accepted or have any effect. Company shall make available to Publisher such reports on a monthly basis.
    • b. Notwithstanding anything to the contrary, Considerations shall be made solely for Approved Transactions, and Company shall not be obligated to remit Considerations, and shall be entitled to withhold Considerations or demand a refund (in the event Consideration were already paid) (a) in connection with payments that were not fully remitted to Company from its Advertisers, or approved by its Advertisers (b) if determined by Company, at its sole discretion, that Publisher has engaged in Fraudulent Activity, was in breach of this Agreement or that Consideration were paid for Approved Transactions that are later determined to have not met the requirements set forth herein to be an Approved Transaction.
    • c. Publisher is solely responsible for providing and maintaining accurate contact and payment information associated with Publisher’s account. Any bank fees and other commissions incurred by Company due to any error or omission of contact or payment information may be deducted by Company from any Consideration due to Publisher. It is hereby clarified that Publisher shall not be entitled to receive any additional payment except for the Consideration agreed upon by Company and as communicated to Publisher.
    • d. The company reserves the right to deduct, set off, claw back or charge back any amounts Publisher may owe to Company against any amounts payable or otherwise owing to Publisher.
    • e. All payments due to Publisher under this Agreement will be exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, VAT, if applicable) (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 Company’s net income. Company 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 Company that Publisher is not an entity from whom Company is required to obtain tax information or Also, if required by applicable law, payments may be subject to tax withholding.
    • f. All Consideration shall be remitted to Publisher within net sixty (60) days from the date of receipt of undisputed invoice and subject to its approval by Company, whether by wire transfer (or similar service) to the account specified by the Publisher. All the fees and/or commissions related to the payment shall be at the exclusive charge of Publisher.
  • 7. Fraudulent Activities
    • a. If the Company determines, in its sole discretion, that the Publisher has engaged in any activity that Company considers to be fraudulent or which might bring the reputation or standing of the Company into disrepute either with the general public or with its clients or potential clients of the Company, or otherwise that the Publisher has engaged in activities which might be considered fraudulent, the Company may but will not be obligated to: (a) suspend or close the Publisher’s engagement, without notice; and (b) release to any third party, information relating to the identity and location of the Publisher if required to do so in order to enforce these terms and conditions. In addition, in the event that Publisher has already received payment resulting from fraudulent activities, the Company reserves the right to seek credit or remedy from future earnings or to demand reimbursement from Publisher for all Service Fee paid by the Company, at the sole discretion of the Company.
    • b. In the event of a suspension or closure in accordance with paragraph a. above, any Service Fee due and payable to the Publisher in accordance with Clause 6 at the time of suspension or closure will be deemed to be forfeited.
    • c. For the purposes of this Agreement, fraudulent activity includes but is in no way limited to:
      • i) activity by the Publisher or anyone for whom in law the Publisher is responsible which is directly or indirectly intended to inflate the Service Fee payable to the Publisher;
      • ii) the generation of leads other than by a mechanism approved by the Company;
      • iii) activity by the Publisher or anyone for whom in law the Publisher is responsible which is not in accordance with the engagement; and
      • iv) activity which is determined by the Company, in its discretion, to be fraudulent.
    • d. The Company may at any time audit the Publisher for compliance purposes. The Publisher agrees to provide the Company with any reasonable information necessary to conduct an investigation into Publisher’s compliance with law and this Agreement.

8. Data Protection

  • a. The Service enables the Publisher to collect and track data concerning the characteristics and activities of Property’s end users as long as the Services are used, including Data pertaining to end users or their devices, whether identifiable or not ("Data"), pursuant to the existing device permissions.
  • b. The Publisher acknowledges and agree to comply with any and all applicable data protection and privacy laws and regulations, including but not limited to the General Data Protection Regulation (EU) 2016/679 (“GDPR”), the UK Data Protection Act 2018, the California Consumer Privacy Act (“CCPA”), and any other applicable data protection legislation in any relevant jurisdiction. The Publisher shall implement and maintain appropriate technical and organizational measures to ensure the security, confidentiality, integrity, and lawful processing of all personal data collected, accessed, or otherwise processed in connection with this Agreement.
  • c. Publisher represents and warrants that: (a) Publisher is permitted to collect, use and transfer Data through the Service; (b) it has provided its end users with sufficient notice (including through an adequate and accessible privacy policy) and obtained their permissions, as required by applicable laws and regulations, as well as any applicable mobile application marketplace’s policies and requirements (such as Google Play or the App Store, as applicable), in connection with the collection, use and disclosure of Data through the use of the Service, including with respect to the use of any technological methods for the purpose of collecting such Data (such as cookies), including for the purpose of displaying interest-based or targeted content: (c) it shall collect, use or disclose Data in accordance with any applicable laws and with its privacy policy.
  • d. Company may use the Data in accordance with applicable laws and regulations, and with its own privacy policy, available at Company’s website.
  • e.Publisher shall not provide to Company any data regarding children under the age of 13, or any health, financial, or insurance data or other data which may be considered as of sensitive nature.
  • f. By entering into the Agreement, Publisher hereby agrees to the terms of the Data Protection Addendum, which is incorporated herein by reference.

8. Confidentiality

  • a. Non-Disclosure of Confidential Information:
    • i) The Publisher acknowledges that Confidential Information is valuable, proprietary and confidential. Unless otherwise expressly authorized by the Company, the Publisher, shall not commercially/non-commercially use or disclose the Confidential Information or any materials derived therefrom to any third party or any employee or agent or Director (other than persons in the direct employment of the Publisher or Directors who have access to and knowledge of the Confidential Information solely for the Purpose as defined above, and such persons are under similar obligation of confidentiality and non-disclosure as these presents) and shall not use the Confidential Information for any purpose other than specified purposes by the Company and the terms of this Agreement.
    • ii) The Publisher shall not disclose Confidential Information to any third party under any circumstances regardless of whether the third party has executed a Non-Disclosure Agreement with the Publisher, without the Company's prior written consent, which prior consent the Company may refuse to give without assigning any reasons.
    • iii) In the event that any employees, agents or affiliates of the Publisher disclose or cause to be disclosed the Confidential Information, the Publisher shall be liable for such disclosure.
    • iv) The Publisher shall hold and keep in strictest confidence any and all Confidential Information and shall treat the Confidential Information with at least the same degree of care and protection as it would treat its own Confidential Information.
    • v) The Publisher shall establish and maintain all reasonable security measures to provide for the safe custody of the Confidential Information and to prevent unauthorised access to it.
    • vi) The Publisher will take appropriate steps to ensure that all personnel to whom access to the Confidential Information is given are aware of its confidentiality, and that they are bound by restrictions at least as onerous as those placed on the Publisher by the terms of this Agreement.
    • vii) The Publisher shall not copy or reproduce in any way (including without limitation, store in any computer or electronic system) any Confidential Information or any documents containing Confidential Information without the Company's prior written consent.
    • viii) The Publisher acknowledges that the Company retains the copyright and intellectual property rights in the Information and that The Publisher may not copy, adapt, modify or amend any part of the Information or otherwise deal with any part of the Confidential Information without Company's prior written consent, which prior consent the Company may refuse to give without assigning any reasons.
    • ix) The Publisher agrees to return to the Company upon its request, the Confidential Information, any copies of the Confidential Information (whether authorized or not) and any documents or items containing portions of the Confidential Information, save one copy of each such Confidential Information which the Publisher can retain for the purpose of evidence to protect itself in case of any dispute/ litigation.
    • x) No license expressed or implied in the Confidential Information is granted to the Publisher other than to use the information in the manner and to the extent authorized by the Agreement.
    • xi) The Publisher agrees to notify the Company immediately if it learns of any use or disclosure of the Company’s Confidential Information in violation of the terms of this Agreement.
    • xii) The Publisher further acknowledges and agrees that no representation or warranty, express or implied, is or will be made, or no responsibility and liability is or will be accepted by the Company, or by any of its respective directors, officers, employees, agents or advisors, as to, or in relation to, the accuracy of completeness of any Confidential Information made available to the Publisher or its advisors; it is responsible for making its own evaluation of such Confidential Information.
    • xiii) During the term of this Agreement, the Publisher may use the association with the Company only towards the Purpose as envisaged under their business association under this Agreement.
  • b. Remedies
    • i) The Publisher shall be responsible for unauthorized use, disclosure or other breach of this Agreement by any of its agents, or by any other person who obtains access to Confidential Information from, or due to the fault of, the Publisher or its agents.
    • ii) The Publisher acknowledges that if the Publisher fails to comply with any of its obligations hereunder, the Company may suffer immediate, irreparable harm for which monetary damages may not be adequate.
    • iii)The Publisher acknowledges and agrees that in the event of a breach of this Agreement, the Company shall be entitled to preliminary and permanent injunctive relief together with all other available equitable remedies and money damages. The rights and remedies available under this Agreement are cumulative and not exclusive, and the exercise of any one right or remedy shall not preclude or waive the right to exercise any or all other rights and remedies available under this Agreement or pursuant to applicable law unless otherwise expressly provided in this Agreement.
    • iv)The Publisher agrees to indemnify and hold harmless the Company and any of its affiliates/clients, partners and staff against all loss, damage and expense (including legal expenses relating to any actions, proceedings and claims brought or threatened) of whatsoever nature and howsoever arising out of or in connection with any breach by the Publisher, its directors or personnel of the terms and conditions of this Agreement.
  • c. Return of Information/ Data

Upon the termination or expiration of this Agreement for any reason, or upon Company’s earlier request, Publisher shall deliver to Company all of Company’s property or Confidential Information in tangible form that Publisher may have in its possession or control and provide a written confirmation thereof.

  • 9. Indemnification
  • a. Company Indemnification. Company shall defend, indemnify and hold harmless Publisher from and against any direct damages, costs, losses, liabilities or expenses (including court costs and reasonable attorneys’ legal fees; collectively "Damages ")) which Publisher may suffer or incur in connection with any actual claim, demand, action or other proceeding by any third party ("Claim ") arising from: (a) any breach of Company’s obligations, representations or warranties herein; or (b) a claim that the underlying technology of the Services infringes the intellectual property rights of a third party. Notwithstanding the foregoing, Company shall have no responsibility or liability for any claim to the extent resulting from or arising out of (a) the use of the Service not in compliance with this Agreement or applicable law, (b) the combination of the Service with any code or services not provided by Company, (c) the modification of any Service by any party other than Company or (d) the use of any Service that is not the most up-to-date Service.
  • b. Publisher Indemnification. Publisher shall defend and indemnify Company (and its affiliates, officers, directors and employees) from and against any and all Damages which Company may suffer or incur in connection with any Claim arising from: (a) any breach of Publisher’s obligations, representations or warranties herein; or (b) any use of the Service in violation of any applicable law or regulations (c) gross negligence and willful conduct or fraud.
  • c. Procedure. The obligations of either Party to provide indemnification under this Agreement will be contingent upon the indemnified party (i) providing the indemnifying party with prompt written notice of any claim for which indemnification is sought (provided that the indemnified party’s failure to notify the indemnifying party will not diminish the indemnifying party’s obligations except to the extent that the indemnifying party is materially prejudiced as a result of such failure), (ii) cooperating fully with the indemnifying party (at the indemnifying party’s expense), and (iii) allowing the indemnifying party to control the defence and settlement of such claim, provided that no settlement may be entered into without the consent of the indemnified party if such settlement would require any action on the part of the indemnified party other than to cease using any allegedly infringing or illegal content or services. Subject to the foregoing, an indemnified party will at all times have the option to participate in any matter or litigation through counsel of its own selection at its own expense.

  • 10. Anti-Bribery and Corruption
    • a. The Publisher shall, at all times, conduct its business and perform its obligations under this Agreement with integrity and in accordance with the highest ethical standards. The Publisher shall not, directly or indirectly, offer, promise, give, request, solicit, or accept any bribe, facilitation payment, kickback, or other financial or non-financial advantage in relation to this Agreement or any matter arising from it.
    • b. The Publisher warrants that neither it nor any of its directors, officers, employees, agents, or subcontractors has engaged or will engage in any conduct which could constitute an act of bribery or corruption in connection with this Agreement. The Publisher shall implement and maintain adequate internal policies, controls, and procedures designed to prevent bribery and corruption and ensure that all persons associated with it comply with the same.
    • c. The Publisher shall promptly notify the Company in writing if it becomes aware of any actual or suspected breach of this clause, or any request or demand for an undue advantage made in connection with this Agreement. Upon such breach or suspicion thereof, the Company shall be entitled to suspend performance or terminate this Agreement immediately by written notice, without liability, and without prejudice to any other rights or remedies available.
    • d. The obligations contained in this clause shall survive the termination or expiration of this Agreement.

  • 11.Disclaimer of Warranties
    • a.Except as expressly provided herein, Publisher accepts the Service on an "AS IS" and "AS AVAILABLE" basis and acknowledges that Company makes no other warranty and disclaims all implied and statutory warranties, including, but not limited to, any implied warranty of merchantability, fitness for a particular purpose or non-infringement.
    • b.Company does not guarantee that the Service will always be complete, accurate, safe, secure, bug-free or error-free, or that the foregoing will always function without disruptions, delays or imperfections. Company may change, suspend or discontinue the Service at any time, including the availability of any feature or database, without notice or liability. In addition, Company may impose limits on certain features and services or restrict the Publisher’s access to the Service without notice or liability.
  • 12. Limitation of Liability
    • a. In no event shall the Company, its directors, officers, affiliates or agents be liable for any consequential, indirect, special or punitive damages, arising out of or relating to the Service or the arrangements contemplated herein.
    • b. Except for intentional misconduct or gross negligence, Company’s entire liability for the provision of the Service or under any provision of this Agreement shall not exceed the amount of payment received by Publisher from Company in the one (1) month preceding the applicable claim.

  • 13. Term and Termination
    • a. The term of this Agreement shall commence on the Effective Date and shall continue until terminated by either Party pursuant to this Agreement ("Term").
    • b. Either Party may terminate this Agreement at any time by providing a prior written notice of 30 days to the other Party, without liability to the other Party.
    • c. Upon any termination or expiration of this Agreement, Company will cease providing the Service and all licenses and rights provided herein shall be revoked. In the event of any termination (a) any undisputed outstanding amounts of Approved Transactions will be paid to Publisher within a net thirty (30) days period after such termination; (b) any outstanding debit balance shall be paid by Publisher within 30 business days after such termination.
    • d. Any obligations of the Parties that by their nature are intended to survive the termination or expiration of this Agreement, including the obligations of the Parties in Sections 3 – 9 and 12 – 14 of this Agreement, shall survive any termination thereof.
    • e. Either Party may terminate this Agreement immediately if the other party materially breaches this Agreement and the non-breaching party provides the breaching party with a written notice of the breach, and the breaching party does not cure such breach within 15 days of the provision of such notice.

  • 14. Non- Solicitation

During the Term of this Agreement and for a period of one (1) year hereafter, Publisher shall not knowingly solicit, directly or through any third party, any Advertiser for whom it delivered service pursuant to the Company under this Agreement. The Publisher shall not encourage any such Advertiser to transfer from the Company services and work directly with the Publisher. Without prejudice to any other right of the Company according to this Agreement and the applicable law, in the event the Publisher directly solicits such Advertiser and/or causes them to work directly with itself, the Publisher shall pay Company 50% of the revenue what Company would have otherwise earned if the Publisher had not violated this provision. During the term of this agreement and for a period of 1 Year thereafter, Publisher shall not (either directly or indirectly through a Third Party) employ, solicit to employ, cause to be solicited for the purpose of employment, any employees of Company, or aid any third person to do so, without the specific written consent of Company.

  • 15.Miscellaneous
    • a. Updates. If Company provides the Publisher with any upgrades, patches, enhancements, or fixes for the Services ("Updates"), or if Company notifies of such Updates through its Company or integration section, then such Updates will become part of the Services and subject to this Agreement. The Publisher is required to use the most updated and current version of the Services. Company shall have no obligation, however, under this Agreement to provide any Updates or any other support to the Publisher for the Services.
    • b. Modifications. The Company may modify or discontinue offering the services, at any time and without notice to the Publisher. The Company makes no guarantees with respect to the availability or uptime of its Service; however, the Company shall use its reasonable commercial efforts to ensure that the availability or uptime of the Service shall meet industry standards. The Company may change the method of access to the Service at any time. In the event of degradation or instability of the Service or an emergency, Company may, in its sole discretion, temporarily suspend Publisher’s access to the Service.
    • c. Publicity. During the Term, Company may refer to Publisher as a business partner of Company, including by displaying Publisher’s name and logo on Company’s website and other marketing materials.
    • d. Export Controls. Publisher represents and warrants that it is not located in, under the control of, or a national or resident of any country to which the United States has embargoed goods or services; (ii) is not identified as a "Specially Designated National;" by the Office of Foreign Assets Control; (iii) is not placed on the U.S. Commerce Department’s Denied Persons List; and (iv) will not access or use any Service if any applicable laws in Publisher’s country prohibit Publisher from doing so in accordance with this Agreement.
    • e. Neither Party shall be (i) an entity or person, or owned or controlled by an entity or person, that (A) is currently the subject of any economic sanctions or restrictive measures administered or imposed by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, the U.S. Department of Commerce, the United Nations Security Council, the European Union, the United Kingdom, the United Arab Emirates, the Philippines or any other relevant authority (collectively, "Sanctions") or (B) resides, is organized or chartered, or has a place of business in a country or territory that is currently the subject of Sanctions; or (ii) is engaging or will engage in any dealings or transactions prohibited by Sanctions or will directly or indirectly use the proceeds of any transactions contemplated hereunder, or lend, contribute or otherwise make available such proceeds to or for the benefit of any person or entity, for the purpose of financing or supporting, directly or indirectly, the activities of any person or entity that is currently the subject of Sanctions; or (iii) is violating or will violate any applicable anti-bribery and anti-corruption laws.
    • f. Entire Agreement. This Agreement and any amendments thereto, represent the entire and complete agreement between the Parties regarding the subject matter hereof and supersedes any and all other agreements between the Parties, whether written or oral, regarding the subject matter hereof. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Either Party may enter into this Agreement by executing any such counterpart manually or electronically (such as Adobe Sign or DocuSign) and deliver the executed counterpart by facsimile or electronic means to the other Party. The receiving Party may rely on the receipt of such document so executed and delivered as if the original had been received. The Parties agree that this Agreement, if executed in accordance with this Clause, shall be deemed to be valid, accurate and authentic, and given the same effect as, a written and signed agreement between or amongst the Parties in hard copy.
    • g. Severability.If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, the remainder of this Agreement will remain in full force and effect.
    • h.Relationship. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement, and neither Party has any authority of any kind to bind the other in any respect. The parties will perform under this Agreement as independent contractors. This Agreement does not create a joint venture, partnership, or formal business organization of any kind. This Agreement is binding upon, inures to the benefit of, and is enforceable by the parties and their respective successors and assigns.
    • i. Force Majeure. Either Party shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond its reasonable control, including, without limitation, epidemic, pandemic mechanical, electronic or communications failure or degradation. The parties agree to promptly notify the other of any force majeure event which impairs the ability of the affected party to perform its obligations under this Agreement. If such force majeure event continues for a period of more than 30 days from the date of notification of such event, either party has the right to terminate this agreement with no liability whatsoever.
    • j. No waiver. The failure of either Party to exercise any right provided for herein shall not be deemed a waiver of any further rights hereunder. All waivers must be in writing. A waiver of any default hereunder or of any of the terms and conditions of this Agreement shall not be deemed to be a continuing waiver or a waiver of any other default or of any other term or condition but shall apply solely to the instance to which such waiver is directed.
    • k. Notices. Publisher may provide Company with notices required hereunder by contacting Company at any email address Company provided, including in its registration information. All notices under this Agreement must be delivered in writing by courier, certified or registered mail (postage prepaid and return receipt requested), or by email to the other party at the address set forth in the Insertion Order.
    • l. Amendments. Company may revise this Agreement from time to time, in its sole discretion, and the most current version will always be posted on Company’s website (as reflected in the "Last Revised" heading). By continuing to access or use the Service after any revisions become effective, the Publisher agrees to be bound by the revised Agreement.
    • m. Assignment. Publisher may not assign any of its rights or obligations under this Agreement without the prior written consent of Company, except in the event of an assignment by Publisher to a purchaser of all or substantially all of the Publisher’s assets or share capital, in which event the Publisher shall provide Company with written notice of the assignment. Assignment in violation of the foregoing shall be void.
    • n. Governing law. This Agreement shall be governed by the laws of India, any dispute or claim arising out of or relating to this Agreement, or any breach thereof shall be solely settled by arbitration in India in accordance with the Arbitration and Conciliation Act, 1996 and Rules thereunder for the time being in force, which rules are deemed to be incorporated by reference in this Section. The arbitration tribunal shall consist of one (1) arbitrator to be appointed by the Company. The language of the arbitration shall be English. Subject to the above, the courts in Mumbai, India shall have exclusive jurisdiction.