1.- Term
This Agreement commences on the date it is executed by the parties and it is renewed every day, unless terminated in accordance with its terms.
2.- Services
Taggify Inc. agrees to provide the Publisher with the Services in respect of the websites on the terms and conditions of this Agreement.
3.- Traffic performance
- Taggify Inc. may establish a Minimum Traffic Level Requirement (“TQ Score”) and Click Through Rate (“CTR”) with the Publisher based on the profile of the Publisher’s Websites. Taggify Inc. reserves the right to terminate this Agreement should the traffic performance not meet the requirements established.
- The Publisher must not perform or undertake (or solicit, counsel, procure or encourage any other person to perform or undertake) any fraudulent activity or behavior, or fraudulent display of Advertisements on any Website, to generate traffic or for the purpose of determining the Publisher’s click or impression guarantees (if any). Fraudulent activity includes (but is not restricted to) making or encouraging false impressions or clicks, automated impressions or clicks, incentivized impressions or clicks, blind clicks, or the use of employees or third parties to undertake impressions or clicks.
4. Code and placement of Code
- The Publisher will include the Code or Software, without alteration, modification or amendment on the Websites in locations as agreed with Taggify Inc. from time to time. Any alterations to the provided Code or Software must be approved in advance by Taggify Inc.
- Taggify reserves the right, in its absolute discretion, to change the Code or Software, or the means or methods of implementation of the Code or Software. Where practicable, Taggify Inc. will provide the Publisher with advance notice of any pending required changes that require modifications by the Publisher of the Websites. The Publisher must provide and maintain, at its cost, a satisfactory operating site (including appropriate hardware and software) for Software or Code. The Publisher’s operating site (including hardware and software) must comply with all technical specification and requirements imposed by Taggify Inc. from time to time.
- The Publisher agrees that should Taggify Inc. require that the Code or Software be Publisher server side implementations
- Be implemented from valid internet protocol addresses; and
- The Publisher agrees that it will keep Taggify Inc. informed of all material changes to the website, and that no changes will be made to the look and feel, dimension or placement of the Advertisements besides the options of Publisher that Taggify Inc. provides to the Publisher.
- The Publisher must not use or access, and must ensure that no third party uses or accesses, any Services, Software or Code other than in compliance with the terms of this Agreement.
5. Data collection and usage
The Publisher acknowledges that Taggify Inc., Third Party Service Provider or related parties may collect data about the performance of the Websites. The Publisher grants Taggify Inc., Third Party Advertisers or related parties the right to use the collected data for production of case studies, publicity releases, in the course of reporting performance to the Publisher, and for such other purposes as Taggify Inc., the Third Party Advertiser or related parties see fit. The Publisher must not impede or restrict any such collection of data.
6. Update of specifications
The Publisher agrees that where Taggify Inc. or a Third Party Service Provider updates its technical or implementation specifications, Code or Software (including the look and feel, content and targeting methodology of Advertisements), the Publisher must implement such technology as soon as reasonably practicable, but in any event within seven (7) days of the date that Taggify Inc. provides the Publisher with notice of such update.
7. Publisher’s obligations
- The Publisher must use the Service, Software and Code in accordance with any user documentation, policies and procedures or other directions provided by Taggify Inc. to the Publisher from time to time.
- The Publisher must ensure that neither the Websites, nor anything connected with the provision of the Services, contains hate-related, violent or pornographic content, or contains any other material, products or services that violate (or encourage conduct that would violate) any applicable laws, regulations or industry codes of conduct, any third party rights, or any other restrictions notified by Taggify Inc. to the Publisher from time to time.
- The Publisher must not (and must not allow any third party to):
- Edit, modify, truncate or change the order of information contained in any Advertising Results (either individually or collectively), including (without limitation) manipulation or commingling Advertising Results with unapproved advertising results;
- Frame any Advertising Results page or Website;
- Provide a version of the Website different from the page an End User would access by going directly to the Website, intersperse any content between Advertising Results and the corresponding Website, r implement any click tracking or other monitoring of Advertising Results;
- Minimize, remove or otherwise inhibit the full and complete display of any Advertising Results and the corresponding Websites;
- Produce or distribute any software, or permit any software to be distributed with the Publisher’s software, that prevents the display of Advertisements (such as by way of blocking or replacing Advertisements)
- Transfer, sell, lease, syndicate, sub-syndicate, lend, or use for co-branding, timesharing, service bureau or other unauthorized purposes, or access any of the Services (including Advertising Results or any part, copy or derivative therefor);
- Directly or indirectly generate queries or impressions of clicks on Advertising Results, through any automated deceptive, fraudulent or invalid means (including click spam, robots, macro programs and Internet agents); or encourage or require End Users or any other person either with or without their knowledge to click on Advertising Results through offering incentives or any other methods that are manipulative, deceptive, malicious or fraudulent;
- Use behavioral segment data in any way that infringes upon Taggify Inc, a Third Party Service Provider’s, or any other third party’s Intellectual Property or other rights;
- modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from any Services, Software or Code or any other Taggify Inc. or Third Party Service Provider Intellectual Property, technology, content d, data, routines, algorithms, methods, ideas design, user interface techniques, software materials or documentation.
- remove, deface, obscure, or alter Taggify Inc or a Third Party Service Provider’s copyright notice, trademarks or other proprietary rights affixed to or provided as a part of any Services or any other Taggify Inc or Third Party Service Provider technology, software, materials and documentation;
- “crawl”, “spider”, index or in any non-transitory manner store or cache information obtained from the services (including but not limited to, Advertising Results, or any part, copy or derivative thereof);
- Create or attempt to create a substitute or similar service or product thorugh use of or access to any of the Services, Software or Code or any proprietary information related thereto;
- Engage in any action or practice that reflects poorly on Taggify Inc., or a Third Party Service Provider or otherwise disparages, devalues or damages Taggify Inc.’s or a Third Party Service Provider reputation or goodwill; or
- Use the Services, Software or Code in any matter that, or behave in any way that, contravenes this Agreement or any policies procedures or documentation supplied by Taggify Inc. to the Publisher from time to time.
- In the event of any breach by the Publisher of any of its obligations under this Agreement, Taggify Inc. or a Third Party Service Provider (as applicable), may pursue any available remedies against the Publisher to effect, perfect or confirm Taggify Inc. or a Third Party Service Provider’s ownership interests and all other rights as set out in this Agreement, to the fullest extent permitted by this Agreement and applicable law, and no termination of this Agreement (in accordance with its terms) acts as waiver of Taggify Inc.’s rights under this paragraph in any way.
8. Privacy
Taggify Inc. and the Publisher shall include conspicuously on its Websites, a privacy policy that describes how such party collects, uses, stores and discloses users’ personal data if any is collected and instructs users how to opt-out of such practices. Publisher’s privacy policy shall disclose that third party advertisers may place cookies on the browsers of visitors to Publisher’s Site(s).
9. Confidentiality
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Each party must keep confidential the other party’s Confidential Information. Each party must:
- use and reproduce Confidential Information of the other party only to perform its obligations under, and enjoy the benefit of the rights granted under, this Agreement; and
- Not disclose or otherwise make available Confidential Information of the other party to any third parties, other than to its employees, agents or contractors who have a need to know the information in order to provide the Services or receive the benefit of the Services under this Agreement.
- In the event that a party is legally required to disclose Confidential Information, that party must only furnish that portion of the information which is legally required to be disclosed and must use all reasonable efforts to agree to the terms of the disclosure and to seek assurances from the person to whom the information is disclosed that the information will be treated confidentially.
10. Intellectual Property and non-assignment
- Taggify Inc. own all rights, title and interest (including all Intellectual Property) relating to the Services, Software, Code, Brand Features and all other materials used or created by (or on behalf of) Taggify Inc. or Third Party Services Providers in the course of providing the Services (including technology, software, code, information, tools, data, routines, algorithms, methods, ideas, user interface techniques, documentation) and any derivatives, improvements, enhancements or extensions to any such materials (collectively, the “Taggify Inc. Materials”)
- The Publisher must not:
- remove or alter any copyright or other proprietary notice incorporated into any Taggify Inc. Materials provided or made available to the Publisher in connection with the provision of the Services;
- combine, distribute, publish or otherwise use any Taggify Inc. Materials or data transmitted by Taggify Inc. or a Third Party Service Provider or accessible through Taggify Inc.’s or a Third Party Service Provider’s website, except to the extent necessary to perform the Publisher’s obligations under this Agreement; and
- modify any Taggify Inc. Materials (including Code, Software and web pages provided or made available to the Publisher in connection with the Services).
- The Publisher acknowledges and agrees that this Agreement does not transfer to it ownership of (or any rights, including Intellectual Property rights, in) any Taggify Inc.’s Material or Brand Features.
- The Publisher agrees that it will not use or display Taggify or a Third Party Service Provider Brand Feature or company attribution of any kind, in any promotional or Media materials, or near an Advertisement and/or in any way exercise or lay claim to Taggify or the Third Party Service Provider (as the case may be).
11. Suspension of the Services
- Without prejudice to any other rights or remedies that Taggify Inc. may have under this Agreement or at law, Taggify Inc. may immediately suspend the Services or disable any software or Code:
- if there is an emergency;
- for the purposes of repair, improvement or upgrade of technology;
- If instructed to do so by a Third Party Service Provider; or
- for any other reason (including as a result of a breach of this Agreement by the Publisher).
Taggify Inc. will (where practicable) notify the Publisher of its intention to suspend the Services prior to any such suspension.
- If Taggify Inc. provides notice to the Publisher of its intention to suspend the Services or disable any Software or Code under this Agreement, the Publisher must immediately suspend all Advertising on its site implemented using the Services, which includes (without limitation) immediately removing or causing to be removed any Advertisements implemented or displayed using the Code or Software.
- Notwithstanding any other provision of this Agreement, any suspension of the Services under this Agreement will continue until Taggify Inc. or the Third Party Provider (as applicable) is satisfied that the events giving rise to the suspension have been remedied or addressed to Taggify Inc.’s or the Third Party Service Provider’s satisfaction.
12. Termination and Consequences
Termination Either Party may terminate this agreement at any time without further announcement.
Consequences of termination
On termination or expiry of this Agreement:
- The Publisher must cease using the Services and must immediately remove all Code and Software from the Websites;
- Taggify Inc. will pay all amounts properly due and payable as at the date of termination (such payment to be made in accordance with the Payment Cycle), except where such termination is due to breach of this Agreement by the Publisher;
- The Publisher must return all materials, information and documentations provided to it by Taggify Inc. in relation to or for the purposes of, this Agreement; and
- Taggify Inc. may terminate all means or modes of access and use of the Services, Code or Software by the Publisher and be regarded as discharged from any further obligations under this Agreement.
- Termination of this Agreement does not affect any accrued rights or remedies of either party.
13. Revenue, billing and payment
- Taggify Inc. will be responsible for the determination of pricing for Advertising product on the Publisher’s Website. Taggify Inc. will use reasonable commercial endeavors to maximize the sales potential for the Publisher, subject to market conditions.
- Subject to paragraph c. Taggify Inc. will:
- Pay the Publisher Payments to the Publisher within 30 days or otherwise agreed, after the end of the month during which an Advertisement is displayed on the Websites, provided that the amount exceeds the minimum payment threshold of US$100.00 (a hundred) dollars; and
- at the same time as making the Publisher Payment in accordance with paragraph i., provide the Publisher with a recipient created tax invoice if applicable for the Publisher Payment payable during that the Payment Cycle.
- Taggify Inc. will not be liable for payment of any Publisher Payment until Taggify Inc. receives the Taggify Inc. Net Revenue to which the Publisher Payment relates. Taggify Inc. will use reasonable commercial endeavors to ensure it receives the Taggify Inc. Net Revenue in a timely manner and will institute a credit policy to minimize exposure to bad debt.
- Taggify Inc. may issue recipient created tax invoice in respect Publisher Payments, and the Publisher agrees that it will not issue tax invoice in respect of Publisher Payments.
- Taggify Inc. reserves the right to cancel the payment of any amount owed to the Publisher if any breach of this Agreement was made by the Publisher.
14. Warranties by the Publisher
The Publisher warrants that, throughout the term of this Agreement:
- In respect of each website, each URL of such Website is a duly registered domain name of the Publisher or the Publisher is validly authorized by a 3rd party to use the Website by the relevant domain name registrant;
- It will not make any representation, warranty, or misleading or false information to any third party (including End Users) regarding the Services, the Websites, Advertising Results, Search Results, Taggify Inc. Materials or other materials provided or made available to the Publisher under or in connection with this Agreement.
15. Warranty disclaimer
- To the maximum extent permitted by law, the Services, the Taggify Inc. Materials and all other materials provided by (or on behalf of) Taggify Inc. or a Third Party Service Provider are provided on an “as is” and “as available” basis and at the Publisher’s own risk.
- Taggify Inc. excludes all express and implied conditions, warranties, or liabilities except for any liability or implied condition or warranty, the exclusion or limitation of which would contravene any applicable statute or cause any part of this clause to be void (“Non-Excludable Condition”). In particular Taggify Inc. does not warrant that:
- the Services, Taggify Inc. Materials or other materials supplied under this Agreement are of merchantable quality or fit for a particular purpose;
- the provision of Services or access to the Taggify Inc. Materials (including the Software and Code) will be complete, correct, uninterrupted, virus-free, secure or error-free, or that defects can be rectified;
- the Services, Software, Code or other Taggify Inc. Materials will operate in conjunction with the Publisher’s or any third party’s hardware, software or systems.
16. Liability and indemnity
Limitation of liability Taggify Inc.’s total aggregate liability (including in negligence) under or in connection with this Agreement is limited to the Taggify Inc. Net Revenue that Taggify Inc. has actually received and retained (after accounting for all deductions and payments to the Publisher and other offsets provided for under this Agreement) during the six month period immediately preceding the event gave rise to claim.
Consequential loss
Neither party will be liable (including in negligence) for any loss of revenue, loss of goodwill, loss of customers, loss of capital, downtime costs, loss of profit, loss of or damage to reputation, loss under or in relation to any other contract, loss of data, loss of use of data, loss of anticipated savings or benefits, or any indirect, consequential or special loss, damage, cost or expense or other claims for consequential compensation, incurred by or awarded against the other party under or in any way connected with this Agreement.
Exclusions
The limitations and exclusions under clauses 0 and 0 do not limit either party’s liability for: (a) breach of exclusivity obligations under this Agreement (b) breaches of confidentiality obligations contained in this Agreement, and © infringement or misappropriation of the other party’s Intellectual Property rights; and (d) any amounts payable to third parties under the indemnity in clause 0.
Indemnity
The Publisher indemnifies and holds harmless Taggify Inc., Third Party Service Providers, their officers, employees and contractors (“Affected Persons”) and will keep the Affected Persons indemnified, against all losses, damages, costs (including legal costs on a solicitor and own client basis) and expenses suffered or incurred by any or all of the Affected Persons arising out of or in connection with:
- A breach of this Agreement by the Publisher;
- Any claims by End Users relating to, or in connection with, the Services or any Advertising;
- Any configuration, modification, translation, customization or localizations of the services by or on behalf of the Publisher (including by Taggify Inc. at the Publisher’s request); and
- Any beta or non-final release Software or Code incorporated into the Websites by the Publisher (or otherwise being used in connection with the Services).
17. General
- Publicity – All intended public disclosure of any activity by the Publisher relating to or connected with this Agreement must be approved in writing by Taggify Inc. prior to such disclosure.
- Assignment – The Publisher must not assign any rights under this Agreement to a third party without the prior written consent of Taggify Inc.
- Jurisdiction – This Agreement is governed by the laws of the State of Delaware and the United States of America. Taggify Inc. and the Publisher agree to submit to its jurisdiction.
- Independence – This Agreement does not create a relationship of employment, trust, agency or partnership between the parties.
- Notices – All notices from Taggify Inc. to Publisher or vice versa, in relation to this Agreement, must be made to the addresses of the parties noted in the Agreement. It is the responsibility of each party to notify the other should their respective address details change.
- Waiver – No waiver of any part of this Agreement shall be determined as a continuing waiver of said part, nor will be interpreted as a waiver of the entire Agreement. No such waiver will be binding unless made explicitly in writing by an authorized representative of the waiving party.
- Force Majeure – If, because of any act, omission or circumstance beyond the reasonable control of the parties (“force majeur”) either of them is unable to perform fully or in part any obligation under this Agreement, that party will be relieved of that obligation to the extent and for the period that it is unable to perform, and will not be liable to the other party for loss caused by its inability. The party so affected must notify the other as soon as practicable of the occurrence of the force majeure and of the anticipated delay caused by it.
- Survival – Any obligation of confidence under this Agreement survives termination of this Agreement. Any other term by its nature intended to survive termination of this agreement survives termination of this Agreement, including (without limitation) clauses 9, 10, 15 and this clause 17.
- Severability – If any part of this Agreement is determined invalid, the remainder of the Agreement shall remain in effect.
- Entire agreement – This Agreement constitutes the entire agreement between the parties as to its subject matter, and in relation to that subject matter, supersedes any prior understanding or agreement between the parties and any prior condition, warranty, indemnity or representation imposed, given or made by a party.
Schedule 1
Definitions & Interpretations
Advertisements or Advertising Results: Means advertisements (which may include contextually targeted advertising, text, image/graphical, flash content, streaming content and any other content in a rich media format) provided by Taggify Inc. or any Third Party Service Provider.
Taggify Inc. Materials: Has the meaning given in clause 10a above.
Taggify Inc. Net Revenue: Means money actually received by Taggify Inc. from the distribution of the Services provided to Publisher Sites less any agency fees, commissions, credits, returns, bad debt, discounts and sales taxes or custom duties, if applicable.
Brand Details: Means the trade names, trademarks, service marks, logos, domain names and other distinctive brand features of Taggify Inc. and Third Party Service Providers.
Code: Means code or data provided by Taggify Inc. under this Agreement which sets out details relating to the Services.
Contextual Search: Means Advertising Results served and displayed on the Publisher’s Website(s) by matching website or page content (including keywords) to Advertisements.
Confidential Information: Means information of a party designated as confidential at the time of disclosure, treated by the party as confidential, or which the party receiving the information knew (or ought reasonably to know) is confidential, and includes:
- Information relating to the technology and design of the Services, Software, Code, the Taggify Inc. Materials, and other materials provided by or on behalf of Taggify Inc. under this Agreement;
- Information relating to the personnel, policies or business strategies of a party; and
- Information relating to the terms on which the Services are provided to the Publisher under this Agreement (including the terms of this Agreement).
End User: Means any third party who accesses the Website(s) (and whether or not that third party views any Advertising Results or otherwise makes use of the Services).
Impression: Means any Advertisement sent to an End User as a result of that person’s request received by a server, as determined by Taggify Inc. or a Third Party Service Provider.
Intellectual Property: Means all intellectual property rights, including:
- Patents, copyright (including all copyright in software), designs, trademarks and any right to have information or know-how kept confidential; and
- Any application or right to apply for registration of any of the rights referred to in paragraph (a).
Minimum Traffic Level Requirement: Means the minimum traffic level that the Publisher must achieve on the Website(s) as determined by Taggify Inc. in its sole discretion and advised in writing to Publisher.
Payment Cycle: Has the meaning given to that term in clause c.
Services: Means the services provided by (or on behalf of) Taggify Inc. under this Agreement
Software: Means the software or data or code provided by Taggify Inc.
Third Party Service Provider: Means a person with whom Taggify Inc. has entered into an agreement in order to facilitate the provision of all or part of the Services under this Agreement.
Websites: Means the Websites incorporating the Advertisements or Services (as contemplated in this Agreement), whether owned or operated by Publisher, or where Publisher has entered into a valid agreement to provide advertising to third parties in a similar manner as provided by this Agreement between Publisher and Taggify Inc.
IN WITNESS WHEREOF, the parties have executed this Annexure as of the Effective Date.
Accepted and Agreed