Term of this Agreement
The term of this Agreement shall commence on the start date or at the date of the signing of this Agreement and accepting the first optimization from MM. This Agreement may be terminated after a thirty(30)-day written notice by either party.
MM shall provide the Customer during the term of this Agreement all the Services in accordance with such package or options as subscribed to by the Customer, with such updates and improvements as are implemented from time to time. MM will perform advertising and site monetization via the DoubleClick Ad Exchange technology.
Grant by the Customer/Intellectual Property
The Customer grants to MM the right to identify the Customer and the Customer’s website(s) as clients of MM, both by name and by any identifying corporate symbols or logos. MM shall make no claim of ownership to the Customer’s trade names, copyrights, trademarks, and all other intellectual property rights the Customer may have. Both parties are in all respects, their own entity and no relationship, other than as defined by this agreement, exists. Customer 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 MM, as well as its contents, and any or all copies thereof are owned by MM, its partners, affiliates and subsidiaries. All title and intellectual property rights in and to the Services which may be accessed through the use of the Services is MM’s property and may be protected by applicable copyright or other intellectual property laws and international treaty provisions. This Agreement grants the Customer no right whatsoever to use such content. The Customer shall not use, remove, distribute, modify or alter any patent, copyright or trademark notice from any part of the Services. MM reserves all rights not expressly granted. The Customer also acknowledges that these intellectual property rights are protected by the laws of the State of California, USA.
Costs/Remuneration of MM
The Customer’s fee is equal to 15% of total monthly DoubleClick Ad Exchange revenue served by MM. The DoubleClick Ad Exchange revenue is calculated by the average monthly RPM / 1,000 * number(#) of filled ad impressions as reported by the DoubleClick Ad Exchange interface.
MM will accept payments on behalf of the Customer. The Customer’s fee will be deducted from the total payment received on behalf of the Customer.
The Customer shall pay to MM an amount equivalent to 15% of total monthly DoubleClick Ad Exchange revenue fees. The Customer shall pay all applicable taxes relating to the performance of this Agreement.
Relationship of Parties
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.
MM and the Customer reserve the right to revoke this Agreement at any time with a 30)-day written notice to the other party.
No Assignment Restrictions
The Customer shall not, without the prior written consent of MM, assign, either directly or indirectly, this Agreement or any of his/her/its rights under this Agreement. The Customer acknowledges and agrees that the Services are provided to the website/URL originally described in this Agreement and the Customer shall not transfer the Services to any other websites/URLs. The Customer shall not modify or create derivative works based upon the Services. This restriction may be waived in writing from time to time, solely at MM’s discretion.
Responsibility for Customer’s Web Site
The Customer shall be solely responsible for the development, operation, and maintenance of the Customer’s website and for all the materials that appear on the said website, including the accuracy and appropriateness of the materials posted on the Customer’s website. The Customer shall ensure that the materials posted at the Customer’s website do not violate or infringe upon the rights of any third party or is libelous or otherwise illegal. MM disclaims all liability for the above matters. The Customer hereby agrees to indemnify and hold MM, its directors, offices, employees and contractors harmless from any and all claims, actions, losses, lawsuits, liabilities, expenses, costs, damages and fees (including attorney’s fees) arising from or relating to the development, operation, and maintenance of the Customer’s website.
Disclaimer of Warranties, Representation, Conditions
(A) CUSTOMER EXPRESSLY UNDERSTANDS AND AGREES THAT: THE CUSTOMER’S USE OF THE SERVICES IS AT CUSTOMER’S SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. MM 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 NON-INFRINGEMENT.
(B) MM MAKES NO WARRANTY THAT (i) THE SERVICES WILL MEET THE CUSTOMER’S REQUIREMENTS, OR BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (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 THE CUSTOMER THROUGH THE SERVICES WILL MEET THE CUSTOMER’S EXPECTATIONS, AND (iv) ANY ERRORS IN THE SERVICES WILL BE CORRECTED.
(C) ANY MATERIAL TRANSMITTED, RECEIVED, DOWNLOADED OR OTHERWISE OBTAINED OR SENT, THROUGH THE USE OF THE SERVICES IS DONE AT THE CUSTOMER’S OWN DISCRETION AND RISK AND THAT THE CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO THE CUSTOMER’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 CUSTOMER FROM OR THROUGH MM OR ITS SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
(E) THE CUSTOMER 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 THE CUSTOMER, THE CUSTOMER’S NETWORK OR EMAIL SERVER; THE CUSTOMER’S RESPONSIBILITIES INCLUDE THE OBLIGATION TO ENSURE THAT HE/SHE/IT HAS SUFFICIENT BACK-UP SYSTEMS IN PLACE.
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, earthquakes, storms, typhoons and floods.
MM shall not be liable to the Customer for any incidental, consequential, exemplary, special, or punitive damages of any kind or nature or any damages resulting from the Customer’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 MM 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. MM 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, MM 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, MM shall not be held liable for any lawsuit for any damages whatsoever should its Ad Exchange Account gets banned by Google. Lastly, MM retains full authority in all payments or remuneration due to them and can nullify any ad revenues that a third party, (e.g. Google) does not disburse to MM on behalf of the Customer due to disapproval of Customer’s account.
The Customer agrees to release, indemnify and hold MM, or its partners, and subsidiaries, affiliates, officers, agents, co-branders, 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 MM is threatened with suit by a third party, we may seek written assurances from the Customer concerning his/her/its promise to indemnify MM; the Customer’s failure to provide those assurances may be considered by MM to be a breach of this Agreement and may result in the suspension or cancellation of Customer’s access to the Services. This indemnification obligation will survive the termination or expiration of this Agreement.
Changes in the Services
MM reserves the right to create, change, update, upgrade or discontinue any feature or service in our Serviced at any time. In doing so, MM shall have no obligation to personally furnish the Customer with any notice with regard to said creation, change, update, upgrade or discontinuance. In some instances, MM shall inform the Customer of an incoming, creation, change, upgrade or update within 24-48 hours prior to such. Furthermore, the Customer agrees that during some critical patches, there shall be downtime for the Services.
MM and the Customer shall keep confidential, and shall cause and require their partners, and subsidiaries, affiliates, officers, agents, co-branders, and employees to keep confidential, and all information which it or any of its partners, and subsidiaries, affiliates, officers, agents, co-branders, and employees may acquire pursuant to, or in the course of the Customer’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.
MM reserves the right to change this Agreement from time to time. MM will give the Customer at least 30 days notice of any change by posting the revised Agreement on the website or through email. The Customer will be deemed to have accepted any such changes if, after MM have given this notice, the Customer continues to use the Services.
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. MM’s failure to enforce the Customer’s strict performance of any provision of this Agreement shall not constitute a waiver of MM’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 may be executed in counterparts, 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 shall be effective to the same extent as if such a party had delivered a manually executed counterpart.
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.
Transfer or Assignment
Neither of the Parties hereto shall, except as provided in this Agreement, transfer or assign all or any of its rights obligations or benefits hereunder to any third party except to its successors in title, provided however that such successors in title shall first have agreed in writing to assume and be bound by this Agreement in place of its predecessor.
Spirit of Agreement and Intention
The Parties hereby declare it to be a cardinal principle of this Agreement and it to be their common intention that they will at all times use their best endeavours to further the interests of the business and that they shall not use, either while a party to this Agreement or thereafter in a manner prejudicial or detrimental to the interests of the Business, any information concerning the business, affairs or financial position of the business. The Parties agree to always work towards the best interests of the venture and each other and will communicate openly.
The Customer acknowledges that the Customer has read this Agreement and agrees to all its terms and conditions. The Customer understands that MM may at any time (directly and indirectly) solicit customer referrals on terms that may differ from those contained in this Agreement or operate websites that are similar to or compete with the Customer’s website(s). The Customer 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. This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement, and this Agreement supersedes and replaces any agreements or undertakings regarding the subject matter of this Agreement entered into, made or given by the parties prior to the date of this Agreement is deemed to come into force.
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.
Applicable Law/Legal Action
This Agreement shall be governed by and construed in accordance with the laws of the State of California, USA. In the event that a legal action is brought by one party against the other, the Customer agrees to submit to the personal and exclusive jurisdiction of the courts within the State of California. The losing party shall reimburse all legal costs and expenses to the winning party.
The Customer 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.