JUST SALES & MARKETING
TERMS & CONDITIONS
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Standard Terms and Conditions
1. Term. The term of this Agreement shall commence on the date of the signing of this Agreement and shall renew for one (1) year periods automatically thereafter. Either party may terminate this Agreement upon a thirty (30) day written notice. If Publisher provides notice of termination and has not ceased use of JS&M’s Services, technology, or parts thereof after the effective date of termination, JS&M may, in its sole discretion, continue billing Publisher and third party advertising sources as applicable under the terms of this Agreement.
2. Multivariate Testing of Advertising Technologies. In the event that Publisher tests JS&M’s Services against a competitive advertising technology, valid statistical methods and procedures shall be used. After such a test, JS&M may, in its sole discretion, produce a written case study from such multivariate testing to share with prospective clients which may contain, but is not limited to a description of techniques used, as well as advertising revenue lift and performance comparisons. Prior to any sort of public release of such case study, JS&M will provide Publisher with a draft for consideration and comment. JS&M may, in its sole discretion, take such comments into account in finalizing the case study.
3. Payment Handling & Payment Terms. Publisher hereby expressly authorizes JS&M to invoice, bill, and collect from third party advertising sources for inventory sold pursuant to this Agreement. In some cases, third party advertising sources require that payment is issued directly to Publisher. Accounting departments of each Party will coordinate to designate which Party handles the billing of each third party advertising source. Where either Party is handling and managing billing of third party advertising sources, the receiving Party shall issue payment (or credit if there is an outstanding balance) from the other Party within the Payment Term. Each Party acknowledges that certain third party advertising partners have payment terms that exceed net the Payment Term, and each Party will notify the other of such increased payment terms where applicable. In such cases involving third party payment terms exceeding the Payment Term, the receiving Party shall have an additional 5 business days beyond the third party payment term to issue the payment or credit to the other Party. For amounts duly received from third parties, each Party may credit or otherwise offset balances owed to and by the other Party to minimize accounting transactions and amounts transferred between the parties. At no time shall either Party be liable to the other in any way for any revenue or revenue shares for payments not received from third parties. The obligation to pay out, credit, and settle outstanding amounts collected on behalf of, or by and between the Parties, as described herein, shall survive the termination of this Agreement.
4. Third Party Advertising Agreements. Publisher acknowledges that it may be required to engage in third party agreements with third party advertising sources for the Services to be effectuated (“Third Party Advertising Agreements”). These Third Party Advertising Agreements may pertain to but are not limited to header bidding and other programmatic advertising demand, privacy policies, or compliance agreements related to laws such as GDPR or COPPA. No entity is intended to be considered to be a third party advertising demand, privacy policies, or compliance agreements related to laws such as GDPR or COPPA. No entity is intended to be considered a third party beneficiary under this Agreement. JS&M is not an insurer, and expressly disclaims all liabilities related to such third party advertising sources, and Publisher expressly assumes all such liability in using or interfacing with such third party technologies or advertising. Publisher expressly authorizes JS&M to pause or otherwise suspend Services relating to third party advertising sources whenever JS&M believes, in its sole discretion, that Publisher or JS&M’s actions or operations are likely to be in breach of such Third Party Advertising Agreements.
5. Third Party Technology Fees. Publisher shall be responsible for all third party technology fees itemized by such companies, including but not limited to DFP serving fees, traffic quality analysis (e.g. Forensiq), creative quality analysis (e.g. Confiant, TMT), adblocked inventory recovery (e.g. Pagefair), and header bidding request volume (e.g. Sovrn, Rubicon). When an itemized amount under this section is billed to JS&M, Publisher shall be responsible for only that amount which applies to Publisher’s usage of such third party services, without any commission or handling fee to JS&M. JS&M shall not incur any expenses on Publisher’s behalf under this section without Publisher’s written consent. Each Party shall be responsible for expenses relating to its own general web servers, data centers, and email service providers (e.g. Amazon Web services, Google Cloud, Microsoft Azure, DigitalOcean, MailChimp). Inclusion of company names herein is for example purposes here, is not intended to be exclusive in their markets and services, and does not imply any sort of endorsement by, or of such companies.
6. Improvements and Modifications to Services. JS&M may, in its sole discretion, create, change, improve, update, upgrade, downgrade or discontinue any feature or functionality in the Services at any time. Publisher acknowledges that some updates may reduce advertising performance, for various reasons including but not limited to compliance with government laws or regulations, technological compatibilities, as well as third party policies or technology changes. Furthermore, Publisher agrees that during some critical patches, there may be downtime for the Services.
7. Intellectual Property. Publisher hereby grants to JS&M the right to identify the Publisher and its Sites as clients of JS&M, both by name and by any identifying corporate symbols or logos, including but not limited for purposes of advertising, header bidding, advertising operations, advertising operations engineering, as well as at industry events. JS&M shall make no claim of ownership to the Publisher’s trade names, copyrights, trademarks, and all other intellectual property rights the Publisher may have. Both parties are in all respects, their own entity and no relationship, other than as defined by this Agreement, exists. JS&M hereby grants to Publisher the right to use the Services as JS&M describes in its implementation instructions. Publisher agrees that all title, including but not limited to copyrights and trademarks, moral rights, patents, trade secrets and other intellectual property rights embodied or contained in the Services, in and to the Services provided by JS&M, as well as its contents, and any or all copies thereof are owned by JS&M, advertising partners, affiliates, subsidiaries, or as applicable, from open source libraries. All title and intellectual property rights in and to the Services which may be accessed through the use of the Services is JS&M’s property and may be protected by applicable copyright or other intellectual property laws and international treaty provisions. This Agreement grants Publisher no right whatsoever to use such content in any manner inconsistent with this Agreement or JS&M’s implementation and usage instructions. Publisher shall not use, remove, distribute, modify or alter any patent, copyright or trademark notice from any part of the Services. JS&M reserves all rights not expressly granted. Publisher also acknowledges that these intellectual property rights are protected by the laws of the Province of British Columbia, Canada and international conventions. Publisher acknowledges and agrees that the Services are provided for the Sites and Publisher shall not transfer to or operate the Services on any other domains or websites. Publisher shall not modify or create derivative works based upon the Services.
8. Responsibility for Publisher’s Sites. Publisher shall be solely responsible for the development, operation, and maintenance of Publisher’s sites, applications, and domains and for all the materials that appear thereon, including the accuracy and appropriateness of the materials posted on Publisher’s website. Publisher shall ensure that the materials posted at Publisher’s Sites do not violate or infringe upon the rights of any third party or is libelous or otherwise illegal. JS&M disclaims all liability for such matters. Publisher hereby agrees to indemnify and hold JS&M, its directors, officers, employees and contractors harmless from any and all claims, actions, losses, lawsuits, liabilities, expenses, costs, damages and fees (including reasonable attorney’s fees) arising from or relating to Publisher’s Sites.
9. Disclaimer of Warranties, Representation, Conditions. a. Publisher expressly understands and agrees that Publisher’s use of the services is at Publisher’s sole risk. The services are provided on an “as is” and “as available” basis. JS&M expressly disclaims all other warranties, representations, guarantees and conditions of any kind, whether express or implied, including, but not limited to the implied warranties, representations and conditions of merchantability, fitness for a particular purpose and noninfringement. b. JS&M makes no warranty that (i) the services will meet Publisher’s requirements, or be uninterrupted, timely, secure, or errorfree, (ii) the results that may be obtained from the use of the services will be accurate or reliable, (iii) the quality of any products, services, information, or other material purchased or obtained by Publisher through the services will meet Publisher’s expectations, and (iv) any errors in the services will be corrected. JS&M is not an insurer and shall not be liable to Publisher for any outages or losses due to interruption of the Services, including total failure of advertising to load on the Sites, or lost revenue due to any such failures. c. Any material transmitted, received, downloaded or otherwise obtained or sent, through the use of the services is done at Publisher’s own discretion and risk and that Publisher will be solely responsible for any damage to Publisher’s computer system or loss of data that results from the opening, download or sending of any such material. d. No advice or information, whether oral or written, obtained by Publisher from or through mm or its services shall create any warranty not expressly stated in this Agreement. e. Publisher acknowledges that as viruses are frequently created and distributed, the antivirus component of the services is intended to detect only specific known viruses and some unknown virus behavior patterns. There is no warranty that the services will detect all viruses present on or sent to Publisher, Publisher’s network or email server; Publisher’s responsibilities include the obligation to ensure that he/she/it has sufficient backup systems in place.
10. Force Majeure. Except as is otherwise specifically provided in this Agreement, the Parties hereto shall not be liable for failures or delays in performing their obligations hereunder arising from any cause beyond their control, including but not limited to acts of God, acts of civil or military authority, fires, strikes, lockouts or labour disputes, epidemics, governmental restrictions, wars, riots, terrorism, earthquakes, storms, typhoons and floods.
11. Limitations of Liability. JS&M shall not be liable to Publisher for any incidental, consequential, exemplary, special, or punitive damages of any kind or nature or any damages resulting from Publisher’s use of the Services and the information contained in or compiled by the Services, the interaction or failure to interact properly with any other service or feature, whether provided by JS&M or a third party, the loss of use, data, profits, goodwill, business interruption, computer failure or malfunctions, or any and all other commercial damages or losses arising out of or in connection with this Agreement or the use or performance of the Services of this Agreement. JS&M shall have no liability with respect to the content of the Services or any part thereof, including but not limited to errors or omissions contained therein, libel, infringement of rights of publicity, privacy, trademark rights, business interruption, personal injury, loss of privacy, moral rights or the disclosure of confidential information. Further, JS&M shall have no liability with respect to any harm that may be caused by the transmission of a computer and internet virus, malware, trojans and other harmful computer and internet programs. Also, JS&M shall not be held liable for any lawsuit or any damages whatsoever should any advertising accounts with third party advertising sources become banned, terminated, or suspended. Publisher agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
12. Indemnity. Publisher agrees to release, indemnify and hold JS&M, or its partners, and subsidiaries, affiliates, officers, agents, cobranders, and employees, harmless from any claim or demand, including reasonable legal fees, made by any third party due to or arising out of the use of the Services or violation of this Agreement, or of any rights of another. When JS&M is threatened with suit by a third party, JS&M may seek written assurances from Publisher concerning its promise to indemnify JS&M; Publisher’s failure to provide those assurances may be considered by JS&M to be a breach of this Agreement and may result in the suspension or cancellation of Publisher’s access to the Services. This indemnification obligation will survive the termination or expiration of this Agreement.
13. Relationship of Parties. This Agreement does not create a joint venture. Nothing in this Agreement will constitute or be taken to constitute any Party as the partner, agent, or representative of any other party for any purpose, nor will any party have the authority to act or assume any responsibility or obligation on behalf of any other party, except as is expressly agreed in writing. All duties, obligations, and liabilities of the Parties under this Agreement will in every case be several.
14. Assignment. Neither of the Parties shall, except as provided in this Agreement or by the written consent of the other Party which shall not be unreasonably withheld, transfer or assign, either directly or indirectly, any or all its rights, obligations, or benefits hereunder to any third party.
15. Confidentiality. The Parties shall keep confidential, and shall cause and require their partners, and subsidiaries, affiliates, officers, agents, cobranders, and employees to keep confidential, and all information which it or any of its partners, and subsidiaries, affiliates, officers, agents, cobranders, and employees may acquire pursuant to, or in the course of Publisher’s use of the Services; provided, however, that such an obligation to maintain confidentiality will not apply to information which at the time of disclosure was in the public domain.
16. Amendment. JS&M reserves the right to modify and amend this Agreement from time to time. JS&M will give Publisher at least 30 days notice of any change by posting the amended Agreement on JS&M’s website or through email. Publisher will be deemed to have accepted any such changes if, 30 days after JS&M has given this notice, Publisher continues to use the Services. Publisher shall not modify this Agreement without the written consent of JS&M.
17. Miscellaneous. The Effective Date shall be the latest execution date of this Agreement by the Parties. Time is of the essence with this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns. JS&M’s failure to enforce specific performance or other adherence to any provision of this Agreement shall not constitute a waiver of JS&M’s rights to subsequently enforce such provision or any other provision of this Agreement. The headings of this Agreement are inserted for convenience only. This Agreement and its incorporated JS&M Standard Terms & Conditions constitute the entire agreement between the Parties, superseding and replacing any and all agreements or undertakings regarding the subject matter of this Agreement entered into, made or given by the parties prior to the Effective Date.
18. Counterparts and Copies. This Agreement may be executed in counterparts and copies, each of which shall be deemed an original and all of which together shall constitute one and the same document. Delivery of an executed signature page to this Agreement by facsimile or email shall be effective to the same extent as if such a party had delivered a manually executed counterpart. 19. Warranty by the Parties. The Parties each warrant that they have the power and authority to enter into and carry out their obligations under this Agreement and that each has taken all necessary action to authorize the entry into and performance of its obligations under this Agreement; and they each have the authority to deal with in the manner contemplated by this Agreement. Each of the Parties hereto hereby represents to the other that the executions and delivery of this Agreement and the performance thereof will not contravene or constitute a breach or default under any other agreement, instrument or other form of commitment to which that party hereto is also bound.
19. Acknowledgement. Publisher acknowledges that Publisher has read this Agreement and agrees to all its terms and conditions. Publisher understands that JS&M may at any time, directly and indirectly, solicit Publisher referrals on terms that may differ from those contained in this Agreement or operate websites that are similar to or compete with Publisher’s Sites. Publisher has independently evaluated the desirability of entering into this Agreement and is not relying on any representation, guarantee or statement other than as set forth in this Agreement.
20. Severability. If for any reason a court of competent jurisdiction finds any provision of the Agreement, or portion thereof, to be unenforceable, that provision of the Agreement shall be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect. Any provision of this Agreement, which is prohibited or unenforceable, in full or in part, in any relevant jurisdiction, shall not invalidate the remaining provisions of this Agreement or affect the validity and enforceability of that provision in any other jurisdiction.
21. Solicitation. During the Term of this Agreement, and for a period of two (2) years thereafter, Publisher shall not directly or indirectly attempt to hire, solicit or attempt to solicit the services or employment of JS&M’s employees or contractor-consultants.
22. Choice of Law. This Agreement shall be governed by and construed in accordance with the laws of the Province of British Columbia, Canada. In the event that a legal action is brought by one party against the other, Publisher agrees to submit to the personal and exclusive jurisdiction of the courts within the Province of British Columbia. The losing party shall reimburse all reasonable legal costs and expenses to the winning party. OPTIMIZATION & MONETIZATION AGREEMENT » STANDARD TERMS & CONDITIONS
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