Terms and Conditions for Publishers

Effective January 13, 2017

This Agreement governs the placement of Ads by Amobee on Publisher Properties (as such terms are defined herein).

1. Definitions. For purposes of this Agreement, the following terms shall have the meanings given to them below.

1.1            “Ad” means a text-based, graphical, interactive, rich media, social, e-mail, video or other online advertisement.

1.2            “Advertiser” means the person or entity providing the Ad.

1.3            “Agreement” means these Terms and Conditions for Publishers together with the associated Purchase Order.

1.4            “Amobee” means the legal entity as identified in the Purchase Order, as the purchaser of inventory for its own account, by which it can place Ads on Publisher Properties.

1.5            “Amobee Code” means the software provided by Amobee to Publisher for installation on the Publisher Properties allowing Publisher to properly display the Ads.

1.6            “Amobee Data” has the meaning given in Section 6.

1.7            “Amobee Party” has the meaning given in Section 11.

1.8            “Behavioral Data” means Collected Data collected for the purpose of Behavioral Targeting. Behavioral Data describes historical End User activity (e.g., pages visited, content viewed, searches, clicks and purchases) and is anonymized such that it cannot uniquely identify an End User.

1.9            “Behavioral Targeting” shall mean the use of Behavioral Data to generate a segment that is used to match an advertising creative to users or the use of commercially available segments on ad exchanges to match an advertising creative to users.

1.10            “Claim” has the meaning given in Section 11.

1.11            “Collected Data” means all End User and other information gathered in combination with the placement of the Ad on Publisher Properties. Collected Data may either be collected automatically or may be voluntarily provided by End Users (e.g., survey responses or contact information).

1.12            “Confidential Information” has the meaning given in Section 12.

1.13            “Disclosing Party” has the meaning given in Section 12.

1.14            “Effective Date” means date of signature of the Purchase Order.

1.15            “End Users” means users of the Publisher Property.

1.16            “Fees” means those certain fees indicated in the associated Purchase Order.

1.17            “Intellectual Property Rights” means all works of authorship, registered copyrights, common law copyrights, registered trademarks, common law trademarks, trade dress, labels, designs, logos, patents, patent applications, know-how, trade secrets, database rights, design rights and all other intellectual property rights and associated goodwill  (whether or not any of these is registered and including applications for registration of any such thing) and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world.

1.18            “Loss” has the meaning given in Section 11.

1.19            “Metadata” means the information relating details about a particular piece of video content.  As an example, this information typically includes descriptive elements like name, title, creation date, upload date, criteria related to each frame (people, places, objects, dialogue, subject matter, etc.) or larger business concerns such as rights management (geographical/regional restrictions, music issues, content, etc.) or content related details (like characters, actors, scene details, locations, behavioral information, etc.)

1.20            “Metric Publisher” means, with respect to a Purchase Order, a Publisher that is not a Revenue Share Publisher. A Metric Publisher can be paid on a CPM (cost per thousand impressions) basis, a CPC (cost per click) basis, a CPA (cost per action) basis, etc. as specified in the Purchase Order, but is not paid on a revenue share basis.

1.21            “Party” in the context of this Agreement means either Amobee or Publisher; “Parties” means both Amobee and Publisher cumulatively.

1.22            “Publisher” means the legal entity specified on the Purchase Order as the vendor of inventory, by which Amobee can place Ads on Publisher Properties for viewing by End Users. Publisher can mean either a Revenue Share Publisher or a Metric Publisher as appropriate.

1.23            “Publisher Party” has the meaning given in Section 11.

1.24            “Publisher Property” means a web site or an application of a Publisher who elects to allow Amobee to place Ads on such web site or application for showing such Ads to the Publisher’s End Users.

1.25            “Purchase Order” means an order for Amobee to purchase inventory on a Publisher Property on which to place Ads.

1.26            “Receiving Party” has the meaning given in Section 12.

1.27            “Revenue Share Publisher” means with respect to a Purchase Order, a Publisher paid on a revenue share basis with Amobee.

1.28            “System” means Amobee’s proprietary system and related tools that may perform any of the following functions: Ad trafficking, optimizing Ad delivery, Ad serving, billing and reporting, business intelligence, real time auctions or network operations.

1.29            “Term” has the meaning given in Section 7.

2. Purchase Order. A Purchase Order will be binding only if accepted and signed by Amobee and Publisher. Each Purchase Order will specify: (a) the type(s) and amount(s) of space to be provided by Publisher on Publisher Properties for the Ad as specified in each Purchase Order; (b) the price(s) for such space; (c) the guaranteed minimum amount of page impressions and/or profiles generated (if applicable); and (d) the start and end dates. Other items that may be included are, but are not limited to: the identity of and contact information for any third party Ad server; reporting requirements such as impressions or other performance criteria; any special Ad delivery scheduling and/or Ad placement requirements; and specifications concerning ownership of data collected.

3. Use of System.

3.1            Use of System. Publisher agrees to use, and Amobee agrees to make available, the System during the Term according to the terms and conditions of this Agreement. As between Publisher and Amobee, Publisher shall be solely responsible for the operation and availability of the Publisher Property and the installation of the Amobee Code on the Publisher Property. As between Publisher and Amobee, Amobee is solely responsible for making available all Ads to Publisher.

3.2            License Grant. Amobee hereby grants to Publisher a non-exclusive, non-transferable, non-sublicensable right and license during the Term to display and distribute Ads and use the Amobee Code and System solely for purposes of receiving and displaying Ads in accordance with the terms and conditions of this Agreement.

3.3            Restrictions. Except as set forth in this Agreement, Publisher agrees not to (a) use or authorize use of the System for any purpose not specified in this Agreement; (b) copy, transfer, sell, lease, syndicate, sub-syndicate, lend, or use for co-branding, timesharing, service bureau, arbitrage or other unauthorized purposes the System or access thereto or the Amobee Code; (c) modify, prepare derivative works of, translate, reverse engineer, reverse compile, disassemble the Amobee Code or any portion thereof; or (d) attempt to do any of the foregoing.

3.4            No Implied Licenses. Except to the extent set forth herein, (a) Amobee does not grant to Publisher any other license, express or implied, to Amobee’s Intellectual Property Rights and (b) nothing in this Agreement or the performance thereof, or that might otherwise be implied by law, will operate to grant either Party any right, title or interest, implied or otherwise, in or to the Intellectual Property Rights of the other Party.  Amobee expressly reserves all Intellectual Property Rights not expressly granted hereunder.

3.5            Availability of System. Publisher understands and agrees that from time to time the System may be inaccessible, unavailable or inoperable for any reason, including, without limitation: (a) equipment malfunctions; (b) periodic maintenance procedures or repairs which Amobee may undertake from time to time; or (c) causes beyond the control of Amobee or which are not reasonably or foreseeable by Amobee, including, without limitation, interruption or failure of telecommunication transmission links, hostile network attacks, the unavailability, operation, or inaccessibility of the Publisher Properties, Internet congestion or other failures.

3.6            Resale through Amobee Exchange. Publisher acknowledges that an exchange-based resale of inventory is among the monetization options Amobee may pursue.

4. Property Accreditation Requirements.

4.1            Publisher Property Requirements. Publisher represents, warrants and covenants that: (a) Publisher either owns or is entitled to use the content displayed on each Publisher Property; (b) Publisher shall operate a “notice and takedown” policy that complies with applicable law in respect of unlawful activity or information on each Publisher Property; (c) Ads booked on a Publisher Property will not be re-sold or re-brokered (and, if a site list has been provided, will not appear on any Publisher Property not listed on the site list); and (d) no Publisher Property will include any of the following types of content.

  • Consumer Laws Etc. Content violating any applicable laws or regulations, including without limitation, those relating to advertising, gambling laws, competitions and consumer protection.
  • Piracy, Defamation Etc. Content promoting or facilitating any activities that are illegal under applicable law or that infringe the rights of any person or entity, including without limitation the pirating of copyrighted works, hacking or other unauthorized access to or modification of devices, any privacy right, or any other proprietary right or by being defamatory.
  • Hate Content, Obscenity and Indecency. Content articulating views intended or reasonably likely to cause or incite hatred of any race, religion, creed, class or ethnic group. Content explicitly glorifying or delivering for the purposes of entertainment, scenes or descriptions of pain, suffering, death, torture or ill-treatment of humans or animals. Content that is obscene or indecent under prevailing legislation. Video content that may not be distributed under prevailing legislation, including without limitation because it requires (but lacks) a video classification certificate or because of the restricted nature of the classification it has been given.
  • Bombs, Guns and Ammunition. Content offering genuine or replica guns, bombs, ammunition or other offensive weapons for sale. Content glorifying the use of or offering technical information on the illegal use of guns, bombs, ammunition or other offensive weapons.
  • Malware. Any software covertly run or installed on a user’s machine. Examples of malware include spyware, adware, keystroke loggers, password sniffers, spam launchers, remote access tools, screen capture utilities, viruses, worms, Trojans or other destructive programming or device that could impair or injure any data, computer system or software.

4.2            Placement of Ad. Publisher shall be solely responsible for placing the Amobee Code on the Publisher Properties and will comply with any specific Ad placement specified in an applicable Purchase Order. Publisher agrees to use the Amobee Code provided by Amobee for displaying an Ad not more than once per page view. Publisher must not place any Ad on a page with no content, on top of another ad, in an e-mail message, on a non-approved Publisher Property or in such a fashion that may be deceptive to the End User.

4.3            Removal and Replacement of Ad. Publisher shall have the right to remove from the Publisher Property any Ad where the advertising material or the site to which the Ad is linked does not comply with Publisher’s policies or applicable laws or where it is likely that the Ad or the site to which it is linked will bring disparagement, ridicule or scorn upon Publisher.  Publisher must immediately notify Amobee in case of such removal, provide written explanation to Amobee and shall be cooperative as to mutually acceptable alternative Ad from the same Advertiser as replacement.  Amobee will try to provide alternative Ad from the same or other Advertisers as replacement, however, Publisher does not have right to replacement of Ads removed in that context. Amobee may request any time without reason that one or more Ads be removed from Publisher Property and Publisher will cooperate with immediate effect.

4.4            No Modification of Ad. Publisher will not edit or modify the Ad in any way, including without limitation resizing, captioning or reformatting.

4.5            No Modification of Amobee Code. Amobee Code shall not be modified without prior written consent from Amobee, however, Publisher may modify the Amobee Code for purposes of inserting certain language pre-approved by Amobee either above or below an Ad served by Amobee. Requests for language approval should be in writing and sent to Amobee. Any modifications to Amobee Code shall be owned solely by Amobee.

4.6            Context of Ad Publication. Publisher may not place the Ad in a discriminatory or illegal context or in a way that could bring disparagement, ridicule or scorn upon Advertiser or Amobee and Publisher will use reasonable efforts to ensure a professional level of editorial quality of its content.

4.7            Traffic. In the case of Publisher Properties which are web sites, Publisher will uses reasonable efforts to meet with any minimum page impressions agreed with Amobee in the Purchase Order.

4.8            Fraud and Deception. Publisher agrees to not artificially inflate traffic counts using a program (including scripts), device, bots, spiders, or other means and to not manipulate the content of the Publisher Properties, including without limitation, “ghosting”, “cloaking” or providing misleading metatags in order to “fool” the System. Publisher shall not induce visitors to click on Ads based on incentives, provided, however, that, with the prior written approval of Amobee, certain language may appear above or below an Ad served by Amobee. Without limiting the foregoing, the following methods of generating visitor interest are unacceptable to Amobee and may be grounds for termination of this Agreement: use of unsolicited e-mail or inappropriate newsgroup postings to promote Publisher Properties; auto-spawning or excessive reloading of browsers; automatic redirecting of End Users; Publisher’s clicking on own banners; blind text links; misleading links; or any other method that may lead to artificially high numbers of impressions or clicks. Amobee reserves the right to and will perform audits of the traffic on Publisher Properties. If Publisher commits fraudulent activities (such as the foregoing), Amobee will terminate this Agreement and will not compensate Publisher for fraudulent traffic. Amobee has several fraud mechanisms at its disposal that will detect most forms within a few days of the initial activity. All Ads must be served from an Amobee server or serving location, or through an Amobee approved third party-hosted server. Stored Ads that are loaded from a different location will not count towards any statistic or payment.

4.9            Collected Data. Amobee owns all Collected Data gathered by or through Amobee Code and/or any or all reports, results, and/or information created, compiled, analyzed and/or derived by Amobee from such data.  Publisher agrees that Amobee shall be permitted to collect Behavioral Data for the purposes of using this information for Behavioral Targeting of Advertisers from the Publisher Property.  All Collected Data shall be deemed Amobee’s Confidential Information.  Any use of such Collected Data by Publisher shall be only as expressly permitted in this Agreement.  Publisher may only access Collected Data that is gathered through the use of its own inventory and is not permitted to access user-volunteered Collected Data.

4.10            End User Notice. Amobee requires that Publishers include clear notices on the Publisher Properties addressed to End Users about the collection and use of information by third parties for Behavioral Targeting purposes. Such notices should include, without limitation: (a) a statement that information about End Users is being collected by third parties and used for Behavioral Targeting purposes; (b) a description of the type of information that is being collected for Behavioral Targeting purposes; (c) an explanation of how, and the purpose for which, such information will be used or transferred to third parties; (d) a link to an appropriate opt-out mechanism such as the Network Advertising Initiative (http://www.networkadvertising.org/choices), the Digital Advertising Alliance (http://www.aboutads.info/choices), the Australian Digital Advertising Alliance (http://www.youronlinechoices.com.au) or the European Interactive Digital Advertising Alliance (www.youronlinechoices.com).

5. Fees; Calculations.

5.1            Fees. On a monthly basis, Metric Publishers shall invoice Amobee and Amobee will pay Publisher the Fees set forth in the associated Purchase Order. Revenue Share Publishers shall be invoiced by Amobee. If not otherwise specified in the Purchase Order, Amobee will pay all Fees within sixty (60) days of the end of such month.

5.2            Payment Method. Amobee will pay all Fees in the currency specified in the applicable Purchase Order by check or by wire transfer to an account specified in writing by Publisher. Amobee will be responsible for and shall pay all applicable sales taxes, consumption taxes, VAT or GST pertaining to the Fees.

5.3            Calculations. Amobee will be solely responsible for determining Fees and the sole arbiter in determining the number of impressions, clicks, actions, or other applicable metric, delivered, shown, produced, clicked on, or viewed unless otherwise indicated in the Purchase Order. Amobee will be solely responsible for determining Fees payable to Publisher hereunder. Invoicing shall not be deemed final until invoices are received by Amobee or Publisher, as applicable. Numbers provided prior to final invoicing via online portal or otherwise are tentative and subject to adjustment.

6. Use of Amobee Data.

6.1            By Publisher. Publisher acknowledges that, in the course of this Agreement, it may have access to information that is applicable to Amobee, such as Collected Data and the Targeting Criteria (“Amobee Data”). Publisher to use Amobee Data solely in connection with this Agreement and to treat all Amobee Data as the Confidential Information of Amobee.

6.2            By Amobee.  Amobee may use and disclose Amobee Data (a) as part of Amobee’s business operations, on an aggregate basis (absent Advertiser’s prior consent) such that any use or disclosure does not permit a third party to associate any particular data with Publisher; and (b) if required by court order, law, or governmental agency.  In addition, Amobee may use Amobee Data to operate, manage, maintain, and improve the System.

7. Term; Termination.

7.1            Term. Unless terminated earlier or extended in accordance with this Section 7, this Agreement shall begin on the Effective Date and continue for the term set out in the Purchase Order (the “Term”).

7.2            Suspension by Amobee. Amobee may suspend this Agreement without prior notice upon Amobee’s reasonable belief that Publisher has breached any of its representations, warranties or covenants in Section 8.

7.3            Termination By Amobee. Amobee may terminate this Agreement (a) in the event of Publisher’s material breach of this Agreement or Publisher’s insolvency upon forty-eight (48) hours’ notice to Publisher if such breach or insolvency remains uncured after the expiration of such forty-eight (48) hours’ notice period; (b) for convenience without cause, on thirty (30) days’ prior written notice to Publisher; (c) immediately upon Amobee’s notice to Publisher of Amobee’s reasonable determination that Publisher or its End Users are likely to  cause injury to Amobee or otherwise reflect unfavorably on the reputation of Amobee which can be the case, without limitation, when the Ad is placed in illegal or discriminatory context; or (d) as otherwise agreed by mutual determination by both Parties.  If this Agreement is terminated by Amobee due to Publisher’s breach, Publisher is required to promptly return to Amobee all documentation received and cease the further use, reception, download and making available of any Ad.

7.4            Termination By Publisher.  Publisher may terminate this Agreement in the event of Amobee’s material breach of this Agreement or Amobee’s insolvency, upon ten (10) days notice to Amobee if such breach or insolvency remains uncured after the expiration of such ten (10) day notice period.

7.5            Survival.  Sections 1, 3.3, 3.4, 4.5, 4.9, 5, 6, 7, 8, 9, 10, 11, 12 13 and 14 shall survive termination or expiration of this Agreement for any reason.

8. Representation, Warranties and Covenants.

8.1            Mutual Representations, Warranties and Covenants.  Each Party hereto represents, warrants and covenants to the other Party that: (a) such Party has the full right, power and authority to enter into this Agreement on behalf of itself and to undertake to perform the acts required of it hereunder; (b) the execution of this Agreement by such Party, and the performance by such Party of its binding obligations and duties to the extent set forth hereunder, do not and will not violate any agreement to which it is a party or by which it is otherwise bound; and (c) when executed and delivered by such Party, this Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its representations, warranties, terms and conditions.

8.2            Publisher’s Representations, Warranties and Covenants. Publisher further represents, warrants and covenants that (a) Publisher Properties meet the requirements according to Section 4 of this Agreement and further, (b) Publisher will maintain and comply with a privacy policy on the Publisher Properties compliant with the IAB self-regulatory principles for online behavioral advertising; (c) Publisher’s actions under this Agreement will comply with all applicable laws (including that Publisher’s collection, use and storage of data shall comply with all applicable privacy laws); (d) neither Publisher nor its End User will claim rights to the Ad; and (e) Publisher will immediately remove Ads and cease to grant its End Users access to the respective Ad upon request by Amobee.

9. Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES MADE BY THE PARTIES IN THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NO PARTY HERETO MAKES ANY REPRESENTATIONS OR WARRANTIES.  THE SYSTEM IS MADE AVAILABLE TO PUBLISHER “AS IS.” EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY EXPRESSLY DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NONINFRINGEMENT, TITLE OR IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY PUBLISHER FROM AMOBEE OR THROUGH OR FROM THIS AGREEMENT SHALL CREATE ANY WARRANTY OR OTHER OBLIGATION NOT EXPRESSLY STATED IN THIS AGREEMENT.

10. Limitations of Liability.

10.1            No Consequential Damages.  SUBJECT TO SECTION 10.3, TO THE MAXIMUM EXTENT A LIMITATION OF DAMAGES OR LIABILITY IS PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING FOR THE INDIRECT LOSS OF PROFIT OR REVENUE) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED, AND UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY BROUGHT (INCLUDING UNDER ANY CONTRACT, NEGLIGENCE OR OTHER TORT THEORY OF LIABILITY) EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10.2            Liability Cap.  SUBJECT TO SECTION 10.3, IN NO EVENT SHALL AMOBEE’S LIABILITY FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT (WHEN AGGREGATED WITH AMOBEE’S LIABILITY FOR ALL OTHER CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT) EXCEED THE TOTAL AMOUNT PAID BY AMOBEE TO PUBLISHER UNDER THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD PRIOR TO THE DATE THE LIABILITY FIRST AROSE.  PUBLISHER AGREES THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION OR BE FOREVER BARRED.

10.3            Exceptions from Exclusions and Limitations.  Nothing in this Agreement shall exclude or limit either Party’s liability for: (a) breaches of Section 12; (b) with regard to Amobee, amounts owed under Section 5; (c) breaches of a Party’s indemnification obligations under Section 11 or any amounts paid or payable to third parties in connection with such obligations; or (d) in case of physical injury or health damages.

10.4            Allocation of Risk.  The Parties agree that (a) the mutual agreements made in this Section 10 reflect a reasonable allocation of risk; and (b) that each Party would not enter into this Agreement without these exclusions and limitations on liability and the exceptions set forth above.

11. Indemnification.

11.1            By Publisher. Publisher shall indemnify, defend and hold harmless Amobee and its directors, officers, employees and agents and its and their respective successors, heirs and assigns (collectively, the “Amobee Parties”) against any liability, damage, loss or expense (including reasonable attorneys’ fees and expenses of litigation) (collectively, “Losses”) incurred by or imposed upon the Amobee Parties or any one of them in connection with any third-party claim, suit, action, demand or judgment (“Claims”) (a) alleging any fact, which, if true, would constitute a breach by Publisher of Section 4 or Section 8 or (b) Publisher’s use of the System other than as permitted herein; provided, however, that in any such case Amobee will (i) provide Publisher with prompt notice of any such claim (provided that the failure to provide prompt notice shall only relieve Publisher of its obligation to the extent it is materially prejudiced by such failure and can demonstrate such prejudice); (ii) permit Publisher to assume and control the defense of such action upon Publisher’s written notice to Amobee of Publisher’s intention to indemnify; and (iii) upon Publisher’s written request, and at no expense to Amobee or its affiliates, provide to Publisher all available information and assistance reasonably necessary for Publisher to defend such claim.  Publisher will not enter into any settlement or compromise of any such claim, which settlement or compromise would result in any liability to any Amobee Party, without Amobee’s prior written consent, which will not unreasonably be withheld or delayed. Amobee shall have the right to participate in the defense with counsel of its choice at its own expense.

11.2            By Amobee.  Amobee shall indemnify, defend and hold harmless Publisher and its directors, officers, employees and agents and its and their respective successors, heirs and assigns (collectively, the “Publisher Parties”) against any Losses incurred by or imposed upon the Publisher Parties or any one of them in connection with any Claim alleging (a) any fact, which, if true, would constitute a breach by Amobee of Section 4 or Section 8 or (b) that the System infringes any Intellectual Property Rights (provided that such infringement is not due in whole or part to modifications made by Publisher); provided, however, that in any such case Publisher will, (i) provide Amobee with prompt notice of any such claim (provided that the failure to provide prompt notice shall only relieve Amobee of its obligation to the extent it is materially prejudiced by such failure and can demonstrate such prejudice); (ii) permit Amobee to assume and control the defense of such action upon Amobee’s written notice to Publisher of Amobee’s intention to indemnify; and (iii) upon Amobee’s written request, and at no expense to Publisher, provide to Amobee all available information and assistance reasonably necessary for Amobee to defend such claim.  Amobee will not enter into any settlement or compromise of any such claim, which settlement or compromise would result in any liability to any Publisher Party, without Publisher’s prior written consent, which will not unreasonably be withheld or delayed. Publisher shall have the right to participate in the defense with counsel of its choice at its own expense.

12. Confidentiality. Each Party (a “Receiving Party”) understands that the other Party (a“Disclosing Party”) may disclose information of a confidential nature including, without limitation, product information, data, pricing, financial information, End User information, software, specifications, research and development and proprietary algorithms or other materials that is disclosed in a manner in which the Disclosing Party reasonably communicated, or the Receiving Party should reasonably have understood under the circumstances that the disclosure should be treated as confidential, whether or not the specific designation “confidential” or any similar designation is used (“Confidential Information”).  The Receiving Party agrees, for itself and its agents and employees, that it will not publish, disclose or otherwise divulge or use (other than as expressly permitted under this Agreement) any Confidential Information of the Disclosing Party furnished to it by such Disclosing Party without the prior written approval of the Disclosing Party in each instance. If disclosure is made to the Receiving Party’s professional advisors, auditors or bankers this shall be done subject to the Receiving Party procuring each such recipient’s agreement to keep such information confidential to the same extent as if such recipient were party to this agreement. The foregoing obligations shall not extend to any information to the extent that the Receiving Party can demonstrate that such information (i) was at the time of disclosure or, to the extent that such information thereafter becomes through no violation of this Agreement by the Receiving Party, a part of the public domain by publication or otherwise; (ii) was already in the Receiving Party’s possession at the time it was received by the Receiving Party free from any obligation of confidentiality; (iii) was or is received by the Receiving Party from a third party who was under no obligation of confidentiality to the Disclosing Party with respect thereto; or (iv) is independently developed by the Receiving Party or its independent contractors who did not have access to the Disclosing Party’s Confidential Information. In the event that the Receiving Party is required to disclose Confidential Information in accordance with judicial or regulatory or governmental order or requirement, or any tax authority to which the Receiving Party is subject or submits, wherever situated, whether or not the requirement for information has the force of law the Receiving Party shall to the extent legally permitted promptly notify the Disclosing Party in order to allow the Disclosing Party to contest the order or requirement or seek confidential treatment for such information. Upon termination or expiration of this Agreement, upon the request of a Disclosing Party, the Receiving Party agrees to return to the other all of the Disclosing Party’s Confidential Information that is reduced to one or more writing, drawing, schematic, tape, disk or other form of documentation, or to certify to the Disclosing Party in writing that all such material has been destroyed.

13. Proprietary Rights.

13.1            Subject to express permission from Amobee, nothing in this Agreement gives Publisher a right to use any of Amobee’s trade names, trademarks, service marks, logos, domain names, and other distinctive brand features.

13.2            If Publisher has been given express permission to use any of these brand features in a separate written agreement with Amobee, the use of such features shall be in accordance with that agreement and any applicable provisions.

13.3            Subject to express authorization in writing by Amobee, Publisher agrees it will not use any trade mark, service mark, trade name, logo of Amobee in a way that is likely or intended to cause confusion about the owner or authorized user of such marks, names or logos.

13.4            Publisher agrees Amobee shall be permitted to disclose to Advertisers the fact that such Advertisers’ Ads have been, are being or will be displayed on the Publisher Properties. This disclosure may comprise the inclusion of Publisher’s URL in Amobee’s site lists and the inclusion of Publisher’s logo in Amobee’s sales decks.

14. Miscellaneous.

14.1            Publicity.  Any public announcement relating to the Agreement must fairly and accurately represent the Parties’ business relationship, must not conflict with this Agreement and must be approved by the other Party prior to its release.

14.2            Independent Contractors. It is the intention of Amobee and Publisher that Amobee and Publisher are, and will be deemed to be, independent contractors with respect to the subject matter of this Agreement, and nothing contained in this Agreement will be deemed or construed in any manner whatsoever as creating any partnership, joint venture, employment, agency, fiduciary or other similar relationship between Amobee and Publisher.

14.3            Entire Agreement. This Agreement represents the entire agreement between the Parties with respect to the subject matter hereof and will supersede all prior agreements and communications of the Parties, oral or written, with respect to the subject matter hereof. In the event of conflict between these Terms and Conditions for Publishers and the associated Purchase Order, the associated Purchase Order will prevail.

14.4            Amendment; Waiver.  No amendment to, or waiver of, any provision of this Agreement will be effective unless in writing and signed by both Parties.  The waiver by any Party of any breach or default will not constitute a waiver of any different or subsequent breach or default.

14.5            Governing Law and Jurisdiction.  This Agreement will be governed by and interpreted (without regard to any conflict of laws principles or rules) in accordance with:

  • the laws of England and Wales and subject to the exclusive jurisdiction of courts located in London (if a UK Amobee office originates the Purchase Order),
  • the laws of Singapore and subject to the exclusive jurisdiction of courts located in Singapore (if a Singapore Amobee office originates the Purchase Order),
  • the laws of Victoria and Australia and subject to the exclusive jurisdiction of courts located in Melbourne (if an Australian Amobee office originates the Purchase Order) or
  • the laws of California and subject to the exclusive jurisdiction of courts located in Los Angeles (otherwise).

14.6            Successors and Assigns.  This Agreement may not be assigned, transferred, delegated, sold or otherwise disposed of, including, without limitation, by operation of law, without the prior written consent of the non-assigning Party; provided that either Party may assign this Agreement without consent (i) to any affiliated company if the standard of quality and compliance with this Agreement is guaranteed or (ii) in connection with the sale of all or substantially all its assets or other change of control transaction.  This Agreement will be binding upon and will inure to the benefit of a Party’s permitted successors and assigns.  Any purported assignment, transfer, delegation, sale or other disposition in contravention of this Section 14.6, including, without limitation, by operation of law, is void.

14.7            Force Majeure.  No Party will be liable for failure to perform or delay in performing any obligation (other than the payment of money) under this Agreement if such failure or delay is due to fire, flood, earthquake, strike, war (declared or undeclared), terrorist act, embargo, blockade, legal prohibition, governmental action, riot, insurrection, damage, destruction or any other similar cause beyond the control of such Party.

14.8            Notices.  All notices, requests, consents, and other communications under this Agreement will be in writing, and will be delivered by hand or sent by reputable overnight courier service or electronic facsimile transmission (with a copy sent by first class mail, postage prepaid) or mailed by first class certified or registered mail, return receipt requested, postage prepaid, if to Amobee or to Publisher, at the address indicated in the associated Purchase Order, or such other addresses as each Party specifies to the other Party in writing by notice given in accordance with this Section 14.8.  Notices provided in accordance with this Section 14.8 will be deemed delivered:  (a) immediately if personally delivered or sent by electronic facsimile transmission; or (b) if sent by overnight courier service, twenty four (24) hours after deposit with such courier service; or (c) if sent by certified or registered mail, return receipt requested, forty eight (48) hours after deposit in the mail.

14.9            Severability.  If any provision of this Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability will not affect any other provisions of this Agreement, and this Agreement will be construed as if such invalid, illegal or unenforceable provision had never been contained herein.