Publisher Terms Of Service
This Publisher Service Agreement ("Agreement") is made by and agreed to between MobiCow, MobiCow.com or MobiCow Inc., (together "MobiCow"), a Canada corporation, including its direct and indirect subsidiaries and affiliates and you ("You" or "Publisher"). As a service provider, MobiCow facilitates "Performance Marketing Programs" by providing services ("Publisher Network Service" or "Service") via the Internet. A Performance Marketing Program ("Program") is where a person, entity, affiliate or its agent, operating or managing "Web Site(s)" (internet domain, or a portion of a domain) and/or other promotional methods to drive traffic to another's Web site, Web site content, Media file or other third-party media outlet, (together, the “Advertiser”). Publisher may earn financial compensation ("Payouts") for valid, non-fraudulent "Transactions" through an Internet connection using the Service and the Service components (“Link”) to an Advertiser from an approved Transaction on a video, banner, image, rich-media file or other approved media file offered by the Service (together, the “MobiCow Media”). An Advertiser-authorized Transaction is defined as (a) actions by Visitors as defined by the Advertiser or the Service and/or (b) referrals by such Publisher via an action made by a "Visitor" (any person or entity that is not the Publisher or the Publisher's agent or prohibited by the Service) from MobiCow Media. The campaign Advertiser shall compensate the Publisher via MobiCow, in accordance with this Agreement and the Program Payout specifications.
1. Participation in Programs
Acceptance by Advertiser. During this Agreement, campaigns for Your use may be provided via the Service automatically via the MobiCow tag (“Tag”) to be embedded at your Web Site which shall deliver the MobiCow Media. The campaigns delivered by the Tag are controlled and delivered by the Service. Failure to comply with this Agreement may result in immediate termination from the Program and Your forfeiture of any Payouts earned and unpaid as of the date of Your termination.
Program Terms. The details of a specific Advertiser's Program shall be available through the Service. Transactions qualifying for a Payout are defined by the Advertiser. Advertisers may change any Payout rate upon no less than 7 days written notice through the Service with effect from the 8th day (or such later date as specified by Advertiser).
Prohibited Uses of Links:
Locations. You may not place Links to any MobiCow Media in third party newsgroups, message boards, blogs, unsolicited email and other types of spam, link farms, counters, chatrooms, or guestbooks, unless specifically approved by MobiCow in writing. Publishers using IRC channels, instant messages or similar Internet resources must designate their program as special requiring manual review and acceptance by the Advertiser.
Non-Bona Fide Transactions. You must promote Advertisers such that You do not mislead the Visitor, and such that the Links deliver bona fide Transactions by the Visitor to Advertiser or Media from the Link. You shall not cause any Transactions to be made that are not in good faith, including, but not limited to, using any device, program, robot, iframes, or hidden frames. You may or may not be compensated for Transactions where You or Your agent are the Visitor. Multiple Impressions from the same individual, entity or IP address may be considered non-bona fide Transactions. You shall not earn Payouts for non-bona fide Transactions.
Infringement. None of Your promotional activities may infringe on any of the Advertiser's proprietary rights (including but not limited to trademark, copyright rights, copyright piracy) or MobiCow's proprietary rights, or a third party's proprietary rights. Failure to comply with this (or any other term of this Agreement) may result in immediate termination from the Program and Your forfeiture of any Payouts earned and unpaid as of the date of Your termination.
pornography, adult content, sexual or erotic material or sites that contain links to such content;
gratuitous displays of violence, obscene or vulgar language, and abusive content or content which endorses or threatens physical harm;
promotion of any type of hate-mongering (i.e., racial, political, ethnic, religious, gender-based, sexuality-based or personal, etc.);
participate in or transmit inappropriate newsgroup postings or unsolicited e-mail (spam);
promotion of any type of illegal substance or activity (i.e., how to build a bomb, hacking, 'phreaking', etc.);
illegal, false or deceptive investment advice and money-making opportunities;
provide incentives of any nature to require or encourage users to click on ad banners (i.e., charity, sweepstakes, etc.);
contains no other content other than the MobiCow Media or where the MobiCow Media tags comprise more than 50% of the content on that web page or landing page;
are under construction or incomplete;
any type of content reasonable public consensus deems to be improper or inappropriate.
2. Publisher Obligations to MobiCow
Accurate, Up-to-Date Information. You agree to provide MobiCow and Advertiser with accurate information about You and Your promotional methods, and to maintain up-to-date "Account" information (such as contact information, Web sites used, payment information etc.). In Your Account, You must accurately, clearly and completely describe all promotional methods by selecting the appropriate descriptions and providing additional information when necessary. Some promotional methods will be designated by the system as "special". Special programs are linked to promotional methods and practices considered unique and may require manual approval and acceptance by the Advertiser. MobiCow reserves the right to define any program as special. You hereby acknowledge that Your failure to keep up-to-date information (including payment and account information) may delay Your Payout, until such information is updated.
Promotional Methods. You represent and warrant that You will not engage in and/or facilitate spamming, indiscriminate advertising or unsolicited commercial email or otherwise fail to comply with the CAN SPAM Act of 2003 (Public Law 108-187 or any successor legislation), and/or any other laws (both US and international) and/ or regulations that govern email marketing and/or communications. You represent and warrant that You will not engage in pop-up or pop-under advertising using any means involving third party properties and/or services (software). Pop up/unders are acceptable on a first party basis only when triggered by Your site content /site visit or by downloadable software applications for which You are the owner/operator. Pop up/unders delivered through downloadable software cannot engage in means that force clicks or perform redirects, or pop over a pay-per-click listing or natural search results. Pop up/unders must honor the MobiCow Publisher Code of Conduct requirements (as such requirements may be modified from time to time), including but not limited to:
(i) installation requirements,
(ii) end-user agreement requirements,
(iii) afsrc=1 requirements,
(iv) requirements prohibiting usurpation of a Transaction that might otherwise result in a Payout to another Publisher (e.g. by purposefully detecting and forcing a subsequent click-through on a link of the same Advertiser) and
(v) non-interference with competing advertiser/ publisher referrals.
Personally Identifiable Information of Visitors. You represent and warrant that You will not enable the Tag or Tracking Code (as provided by MobiCow) to collect personally identifiable information of Visitors that would allow MobiCow to personally identify Visitors.
Applicable Codes and Code Maintenance. In order for MobiCow to record the tracking of Visitors' Transactions resulting from clicks on Links to Advertisers promoted by You, You must include and maintain the necessary Tag or MobiCow "Tracking Code" within the Advertiser's Links. All Advertiser Links and all advertisements ("Ad Content") must be in an Publisher Network Service compatible format.
Usage and Security of Account. You shall be responsible for all usage and activity on Your account and for loss, theft or unauthorized disclosure of Your password (other than through MobiCow's negligent or willful conduct or omission). You shall provide MobiCow with prompt written notification of any known or suspected unauthorized use of Your Account or breach of the security of Your Account.
3. MobiCow's Services
The Publisher Network Service. MobiCow provides a Publisher Network Service by allowing approved Publishers and Publishers to generate commission Payouts from approved Advertisers by embedding MobiCow Media on the Publisher's Web Site. The MobiCow Media is provided by the Advertiser who assumes sole responsibility for its accuracy, offer and content. The MobiCow Media is made available to MobiCow and its approved Publishers by the Publisher Network Service for its Performance Marketing Program. The MobiCow Media may include additional content or derivative content as determined by the Advertiser which may be overlaid on the Content. An approved Publisher may embed the MobiCow Media on the MobiCow-approved Web Site provided the Publisher agrees to the terms and conditions of this Agreement and any terms and conditions set by the Advertiser (as may be found on the Advertiser's offer page at MobiCow.com). The MobiCow Media may also include a Link to the Advertiser's URL (landing page, registration page, or other content page as determined by the Advertiser) where a Visitor who is directed to the Advertiser's URL may perform a specified action. Completed actions are monitored and tracked by MobiCow.com to the Publisher (by means of the embed code which includes the Publisher’s ID) or tracked using the MobiCow Tag.
Service and Support. MobiCow.com will provide support for the Service as indicated on the MobiCow.com Web site and in accordance with the terms and conditions and are provided AS-IS and AS-AVAILABLE as set forth in this Agreement that supersede any other Agreement. MobiCow.com may be contacted at support@MobiCow.com or at publishers@MobiCow.com for any Service or support inquiries. Online help is also available at under the FAQ section.
The MobiCow Media. The Service enables a Publisher to embed an Advertiser's Media at their Web Site. The MobiCow Media is provided by the Advertiser, who assume sole responsibility for its content. You acknowledge that the embedding of the MobiCow Media (via the Tag, other link or embed option) on Your Web Site, may affect the functioning (loading, speed, or other function) of the Web Site. While MobiCow uses globally recognized content delivery networks and systems for the delivery of the MobiCow Media, by using the Service, You hereby recognize that delays and such may occur and You shall not hold MobiCow liable for any delay or problems that may occur while using any aspect of the Service in connection with Your Web Site. MobiCow.com does not guarantee the delivery of the MobiCow Media or Links but shall make every effort to deliver such MobiCow Media or Links.
Tracking Transactions and Payouts. MobiCow shall determine (where possible) actual Payouts that should be credited to Your Account. Payouts shall be determined based on the information tracked by MobiCow.com and provided to MobiCow.com from the Advertiser for completed transactions. All Payouts are determined by the MobiCow reporting servers and systems and all Payouts made, unless agreed in writing, shall be based solely on the Payout determined by MobiCow. All amounts and Payouts as reported by MobiCow shall be deemed final. MobiCow shall not make any adjustment to your Payout based on any other reporting service unless agreed to in writing by MobiCow. MobiCow, may, at its own discretion, make an adjustment to your Payout and Account Balance pursuant to terms agreed with You in writing. If you have any questions or disputes regarding your month’s expected Payout amount, all inquiries must be sent to MobiCow (to payments@MobiCow.com) no later than 10 days following the end of the month, after which time, the reported Payout shall be deemed final. Your Payout information shall be available for your viewing via Your account. All financial Payout information as shown on Your Account are shown for illustrative purposes and are approximate all Payout amounts are deemed final by MobiCow. Once a Transaction is completed by a Visitor, the Transaction may be automatically approved or may be considered a pending sale (see Advertiser's Offer page for pending sale details) at which time the commission shall be credited to the Publisher's account. Manual adjustments may be made from time to time on Your Account to reflect any Transactions not credited in Your account or if deductions need to be made from Your Account. From Transactions the actions are subject to a Pending Period, the Transactions shall not be deemed final until the Advertiser approves the Transaction during the period to allow the Advertiser to void the commission or transaction for Charge-backs (see below) for the remainder of the current month of the Transaction, plus one month (or a minimum of 30 days), (the "Pending Period"). After the Pending Period, any approved Commission due shall be paid to the Publisher and the Advertiser will no longer be able to reverse the sale (although Charge-backs may still be applied). All payments to Publishers, including bonuses or rewards, shall be processed through MobiCow.com or via MobiCow’s payment processing provider or partner. MobiCow reserves the right to review any and all Payout earned or made for a period of up to six-months in arrears and to make any adjustment against future or pending Payouts if there is any fraudulent activity or Transactions found in Your account.
Access to Tracking and Reporting Tools. MobiCow shall provide You with access to tracking and reporting tools, and to support services. From time to time MobiCow may offer optional services for a fee. Fees for such optional services are at MobiCow's then-current published rates or as may be quoted by MobiCow, and are payable in advance or may be off-set against Your positive Account balance (at MobiCow's discretion). Tracking detail regarding Visitor Transactions may not available on a real-time basis for all Advertisers and there may be reporting delays regarding Transactions for some Advertisers. MobiCow may make available, for fees that MobiCow shall publish from time-to-time, enhanced reporting capabilities and other services that are not included in the standard Publisher Network Service.
Payment Rules and Procedures. Payments to Publishers are currently made when Your Account balance (for previous approved and non-fraudulent Transactions) reaches a minimum Payout of $100 (“Minimum Account Balance”). For Publishers selecting payment via wire transfer, the minimum Payout is $300 (wire transfer). Please review the Payment options, fees and method minimums under MobiCow’s payment tab in your Account. MobiCow may, in MobiCow's sole discretion, apply an estimated amount to your Payout, if: (i) You are referring Visitors to Advertiser as verified by clicks through Links to Advertiser with MobiCow Tracking Code, (ii) where there is an error in Advertiser's transmission of Tracking Code data to MobiCow, and (iii) where MobiCow is able to utilize a historical analysis of Your activity and Transactions of Advertiser to determine an equitable amount of estimated Payouts. All Transactions may be subject to a transaction fee by MobiCow. You hereby acknowledge that payment information, provided to MobiCow for purposes of facilitating Your payment, shall be provided to third-parties to process the payment request and You hereby authorize MobiCow to submit such information to the required parties or Partners.
Facilitating Payment of Payouts. Subject to other provisions in this Agreement, MobiCow shall credit Your Account with a Payout for each qualifying Transaction in accordance with the Advertiser's Payout rate and Program terms for the relevant Transaction or the MobiCow payout rate as determined by MobiCow, at its sole discretion, for approved Transactions using the MobiCow Media. You agree to provide MobiCow with accurate and up-to-date information for the payment of any Payouts. MobiCow shall use the information You provided and entered into the MobiCow system regarding your payment method and information as of the 1st of each month for that payment cycle (for example, information as it appears on July 1 shall be used to make payments during July for May earned Payouts). MobiCow may also require You to approve and submit an invoice to MobiCow for the month’s Transactions and commissions earned before any Payout may be made. If You are required to submit an original invoice with VAT to MobiCow, You shall provide such invoice in the accepted currency plus VAT (if applicable) to MobiCow by the invoice submission deadline. Failure to provide such payment information or to comply with the MobiCow deadlines, may delay payment to You. MobiCow shall not be liable for any payment delays. The schedule of providing Payouts are as follows (using for example May earned commissions and Payout for July payment cycle).
Final Payout information:Final commissions earned for the month should be available by the 10th of the following month, i.e. June 10 (including any adjustments required for pending payments).
Invoice Approval and Submission:Manual invoice approval and submission (if applicable) shall be required by the 24th of the month, i.e. June 24 (the “Invoice Deadline”). Provision of an original invoice, if applicable, to MobiCow shall be due by the same date. In Your account, under the Payments tab, you will find the list of unpaid amounts due to You. You must approve the invoice in Your account for each unpaid period by the invoice deadline. Invoices that are not approved in Your account (by the deadline) shall not be processed in the next payment cycle. If you do not approve the invoice in Your account by the deadline, you can approve past invoices in subsequent months and such payment shall be made in the next payment cycle.
Payment Information: Accurate payment information must be entered and updated in Your account by the Invoice Deadline. Information in Your Account on the Invoice Deadline shall be used for purposes of Payout. Note, You shall be required to complete and execute the applicable tax form for payment. The tax forms are available via the Payment tab in Your Account. Please consult with your tax advisor for advice on the tax form to provide. MobiCow shall bear no liability for incorrect tax form submission.
Payout Cycle: Provided (i) Your Account balance exceeds the Minimum Account Balance and the minimum balance required for Your selected payment method and (ii) You have submitted an approved invoice to MobiCow by the Invoice Deadline, , by the 10th of the next month, the “Payment Date” (i.e. July 10), MobiCow shall process Your Payout (including any adjustments and less any withholding taxes, if applicable) in the method You selected to the payment details You provided. Note, some payment methods are subject to certain fees (please review the payment method and associated fees in Your Account settings). MobiCow reserves the right to change or amend any payment fees, at its sole discretion). MobiCow shall reduce Your Payout by the fee or fees incurred in connection with the payment method You selected. In addition, for certain payment methods, please allow between 3-15 business days from the Payment Date for the funds to be received.
5. In the event that Your Payout does not reach the Minimum Account Balance for said month (or You did not approve the invoice by the Invoice Deadline), the unpaid Account balance shall be added to the following month's Transactions and Payout to the Publisher shall be made on the next Payment Cycle after the Account balance has exceeded the Minimum Account Balance. Except indicated otherwise by the payout terms of an Advertiser, Transactions subject to a Pending Period, upon approval, shall be included in the next applicable month and Payment Cycle.
6. MobiCow shall have no obligation to make payment of any Payouts for which MobiCow has not received payment from the relevant Advertiser of all monies due to MobiCow (including for all Payouts owed by such Advertiser to all of such Advertiser's Publishers) or for Payouts determined by Advertiser as fraudulent or otherwise unacceptable. In the event that an Advertiser's Payout is extended beyond the default Advertiser payment period, the specific Advertiser's payout terms and conditions shall be indicated on the Advertiser's account page and the payout to the Publisher shall be made in accordance with such terms. Advertiser Payout terms are subject to change and are determined by the Advertiser. An Advertiser's Payout terms shall supersede the Payout terms of MobiCow, but shall not be less than the payout terms of MobiCow. If MobiCow elects, in its own discretion, not to make payment to You for amounts not received from an Advertiser, those amounts shall not be included in the Minimum Balance Amount. Your recourse for any earned Payouts not paid to You shall be to make a claim against the relevant Advertiser(s), and MobiCow disclaims any and all liability for such payment. You may elect to receive payment in any of the currencies that MobiCow supports (as may be amended by MobiCow). The conversion rate shall be determined in accordance with MobiCow's operating standards. The number or amount of Transactions, credits for Payouts, and debits for Charge-backs, as calculated by MobiCow, shall be final and binding on You.
Dormant Accounts. If Publisher's Account has not been credited with a valid, compensable Transaction (in excess of $0.10 of earned payout in each month) that has not been Charged-back during any rolling, six consecutive calendar month period ("Dormant Account"), a dormant account fee at MobiCow's then-current rate shall be applied to Publisher's Account each calendar month that Publisher's Account remains an open yet Dormant Account or until Your Account balance reaches a zero balance, at which time the Account shall become deactivated. Transactions will not be counted if the Transaction subsequently becomes a Charge-back. At the end of the calendar year, MobiCow reserves the right to charge the full balance of any Dormant Account if no compensable Transaction occurred in the previous 6 months.
Negative Accounts. You may have a negative balance if Your Account is debited amounts equivalent to previous Payouts for Charge-backs and You do not have an adequate Account balance to cover the Charge-back amounts. When You have a negative balance, You must immediately remit payment to MobiCow in an amount sufficient to bring Your Account to a zero balance, or Your Account is subject to 1.5% interest per month, compounded monthly.
To sign up as an Publisher of MobiCow.com and to use the Service as an Publisher you must be at least 18 (eighteen) years of age, and may be required to supply a valid tax-id, which may be your social security number for individuals, or a federal tax-id for corporations or entities.
ALONG WITH THE OTHER TYPES OF PROHIBITED SITES/CONTENT STATED IN SECTION 1.4, THE FOLLOWING TYPES OF SITES ARE NOT ALLOWED TO PARTICIPATE IN MobiCow.COM: ADULT SITES, SITES THAT DISPLAY ADULT CONTENT OR BANNERS, SITES THAT PROMOTE VIOLENCE, BIGOTRY, OR HATRED. SITES THAT PROMOTE ILLEGAL ACTIVITY, including but not limited to CRACKING, and HACKING SITES.
As part of the registration process, You may be required to select a username and password combination that You use to access Your Publisher area within the Service. You shall provide MobiCow.com with accurate, complete and updated registration information. You may not select the name of another person with the intent to impersonate that person or deceive members or other users as to Your true identity. You agree that MobiCow.com may rely on any data, notice, instruction or request furnished to MobiCow.com by You which is reasonably believed by MobiCow.com to be genuine and to have been sent or presented by a person reasonably believed by MobiCow.com to be authorized to act on Your behalf. You shall notify MobiCow.com by e-mail at publishers@MobiCow.com of any known or suspected unauthorized uses of Your Account, or any known or suspected breach of security, including loss, theft or unauthorized disclosure of Your username and password. You shall be responsible for maintaining the confidentiality of Your username and password and You are responsible for all usage and activity on Your Account, including use of the account by a third party authorized by You to use Your Account. Any fraudulent, abusive or otherwise illegal activity may be grounds for termination by MobiCow.com and referral to the appropriate law enforcement agencies
5. Accepted Use
You represent to MobiCow.com that all content and Web Sites You provide to the Service or use as part of the Service, to the best of your knowledge, but without special investigation of any kind, is solely owned or managed by You or provided by You with the express authority of the company You represent, does not infringe upon any other individual's or organization's rights (including, without limitation, intellectual property rights), and is not defamatory, libelous, unlawful or otherwise objectionable under the laws of the United States (for example, online gaming restrictions) and complies with MobiCow.com's terms. You shall not knowingly or intentionally provide, promote, distribute, place or otherwise publish or use as part of the Service any content, or Web Site that includes content, which is libelous, defamatory, obscene, pornographic, abusive, fraudulent or violates any law. As MobiCow.com may not review all information provided by You, You shall remain solely responsible for Your content and Web Site.
6. Proprietary Rights
Linking to Advertisers. For each Advertiser's Program that You have been accepted to, the Advertiser is granting to You the a revocable, non-exclusive, right and limited license and sublicense to display and Link to the Advertiser's Web site or Web site or MobiCow Media content in accordance with the Advertiser's Program terms for the limited purposes of Promoting the Advertiser's Program or MobiCow Media, subject to the terms and conditions of this Agreement. Your use of the Link signifies Your agreement to refrain from copying or modifying any icons, buttons, banners, graphics files or content contained in the Link, including but not limited to refraining from removing or altering any copyright or trademark notices. As between MobiCow and Publisher, MobiCow owns all rights in and to all information regarding the Visitors that You refer to Advertisers through MobiCow.
Licenses to Advertiser's Trademarks. You, the Publisher, are hereby granted by MobiCow.com and the Advertiser, a non-exclusive, limited, revocable right to sublicense the use of Advertiser provided trademarks, banners, Video, MobiCow Media other content as provided to MobiCow.com or Publishers through MobiCow.com. All images, technology, Video, creative work, derivative work and other content (together the "Works") provided for MobiCow.com and Your use is and shall remain the sole property of the Advertiser (or the rightful owner of such Works where Advertiser has been granted explicit permission for the Works to be used or created as part of this Service) and no part thereof shall be deemed assigned or licensed to You except as explicitly provided for herein. All intellectual property rights, including trademarks, copyrights, patent rights or applications, trade names and service marks related to the foregoing shall remain the Advertiser's sole property, including rights in and to any derivatives thereof. You may not modify the trademarks, banners, Video, MobiCow Media or other the content or any of the images provided by Advertiser in any way, unless given explicit permission to do so.
Revocation of Licenses Granted. Advertiser or MobiCow may immediately terminate Your license to use the any of trademarks, service marks or Works, if Advertiser or MobiCow reasonably believe that such use dilutes, tarnishes or blurs the value of their marks or violates the license granted or Service. You acknowledge the Advertiser's or MobiCow's ownership and exclusive right to use the marks and agrees that all goodwill arising as a result of the use of the marks shall inure to the benefit of the Advertiser. Should the Advertiser wish to terminate Your license, due to any of the conditions listed above or for any reason, MobiCow.com will provide Your contact information to the Advertiser. You acknowledge that MobiCow.com has no further obligation or requirement to assist the defense of any claim made against You by an Advertiser for alleged or actual unauthorized or non-licensed use of the marks and MobiCow.com nor its parent, subsidiary or related companies, shall be liable for any claim as a result of Your (alleged or actual) unauthorized, non-licensed use or other damage that may arise.
MobiCow's Use of Your Marks. You authorize MobiCow to utilize Your trademarks, service marks, tradenames, and/or copyrighted material that You provide to MobiCow through Your Account to promote Your participation in the Service.
Retention of Rights. All proprietary rights of Advertisers, You, and MobiCow, and all goodwill arising as a result of such rights, inure to the benefit of such owner.
No Challenge to MobiCow's/Advertiser's Proprietary Rights. You acknowledge that You obtain no proprietary rights in MobiCow 's trademarks, service marks, tradenames, URLs, copyrighted material, patents, and patent applications, and agree not to challenge MobiCow's proprietary rights. You acknowledge that You obtain no proprietary rights in Your Advertisers' proprietary rights, and agree not to challenge such Advertiser's proprietary rights.
Data Ownership. You understand that all personally identifiable information, if any, provided by Visitors through the Tracking Code, Tag or MobiCow Media or in response to an advertisement or request for information and/or any or all reports, results, and/or information created, compiled, analyzed and/or derived by MobiCow from such data is the sole and exclusive property of Advertiser and MobiCow and is considered MobiCow's Confidential Information pursuant to this Agreement. MobiCow and/or its Advertisers, in their sole discretion, shall have the right to use, market and re-market any Visitors and/or data without further obligation to You. You shall not make any use of, copy, make derivative works from, sell, transfer, lease, assign, redistribute, disclose, disseminate, or otherwise make available in any manner, such data or Visitors, or any portion thereof, to any third-party.
Obligations. You or MobiCow may provide the other with information that is confidential and proprietary to that party or a third party, as is designated by the disclosing party or that is reasonably understood to be proprietary and/or confidential ("Confidential Information"). The receiving party agrees to make commercially reasonable efforts, but in no case no less effort than it uses to protect its own Confidential Information, to maintain the confidentiality of and to protect any proprietary interests of the disclosing party. Confidential Information shall not include (even if designated by a party) information:
(i) that is or becomes part of the public domain through no act or omission of the receiving party;
(ii) that is lawfully received by the receiving party from a third party without restriction on use or disclosure and without breach of this Agreement or any other agreement without knowledge by the receiving party of any breach of fiduciary duty, or
(iii) that the receiving party had in its possession prior to the date of this Agreement. Upon termination of this Agreement, You must destroy or return to MobiCow any Confidential Information provided by MobiCow to You under this Agreement.
Provision of Info to Advertisers/Third Parties. You agree that MobiCow may, but is not obligated to, provide Your email address(es) and basic Publisher Account detail (including but not limited to Your address, phone and fax number, Web Site name, the date the Web Site first entered into operation with the Service, and visitor demographics) to Advertisers. MobiCow may provide any and all Visitor, Transaction and/or Tracking Code data to the Advertiser to which You referred such Visitor, and to any third party in MobiCow's sole discretion, including but not limited to all regulatory, legislative and judicial bodies, and pursuant to allegations and claims of proprietary rights infringement.
8. Term, Termination, Deactivation and Notices
Term. This Agreement shall commence upon Your indication that You have accepted this Agreement by providing the required information and ‘clicking through' the acceptance button on the MobiCow Web site and shall continue until terminated in accordance with the terms of this Agreement. This Agreement may be terminated by either party upon 15 days’ notice. This Agreement may be terminated immediately upon notice for Your breach of this Agreement. Your Account may be deactivated during investigation of breach of this Agreement. If this Agreement is terminated based upon Your breach, You shall not be eligible to enter into a new click-through Publisher Service Agreement with MobiCow, and any attempt to do so shall be null and void.
Termination by Advertiser. An Advertiser may terminate You, one of Your Web Sites, or Your ability to use a promotional method, from the Advertiser's Program for any or no reason, upon 7 days written notice with effect from the 8th day. Additionally, Advertiser may terminate You immediately from the Advertiser's Program for breach of a third party's proprietary rights, and/or diluting, tarnishing or blurring an Advertiser's trademarks, tradenames, and/or service marks, or for Your material breach of the Advertiser's Program terms or of this Agreement.
Termination or Deactivation by MobiCow. MobiCow may terminate You, one of Your Web Sites, or Your use of a promotional method such as Tag or Tracking Code or other promotional method, from an Advertiser's Program, at any time in MobiCow's sole discretion. Breach of any Section of this Agreement is cause for immediate termination from an Advertiser's Program and/or termination of this Agreement, and may result in Chargeback of one or more Payouts (including all earned and unpaid Payouts in Your Account). MobiCow may temporarily deactivate or terminate Your Account if: (i) You or Your agent are responsible for the improper functioning of the MobiCow Media, or if You otherwise interfere with and/or fail to maintain the Tracking Code or Tag;
(ii) Your Account has not been logged into and/or there have been no Transactions credited to Your Account for any 60 day period;
(iii) You maintain a negative balance in Your Account;
(iv) MobiCow determines You are diluting, tarnishing or blurring MobiCow's proprietary rights;
(v) You begin proceedings to challenge MobiCow's proprietary rights;
(vi) a third party (including a MobiCow Advertiser) disputes Your right to use any Link, domain name, trademark, service mark, trade dress, or right to offer any service or good offered on Your Web Site, or through any of Your promotional means; or
(vii) You violate any terms of this Agreement . Upon termination of this Agreement, or in case of deactivation of Your Account, You shall no longer accrue Payouts in Your Account, including but not limited to subsequent views, sales and/or Leads for click-throughs that occurred prior to termination.
Termination of Programs and Offers. Programs and Offers may be discontinued at any time.
Notices. Except as provided elsewhere herein, both parties must send all notices relating to this Agreement to: (i) for MobiCow, via registered mail, return receipt requested or via an internationally recognized express mail carrier to MobiCow Inc. 93 Roosevelt Circle Palo Alto, CA 94306, USA, (effective upon actual receipt); and, (ii) for You, at the email or physical address listed on Your Account (effective upon sending as long as MobiCow does not receive an error message regarding delivery of the email) or five (5) days after mailing).
Post-termination. Upon termination of this Agreement, any outstanding payments shall be paid by MobiCow to You during the next applicable Payment Cycle for the earned Payouts after the termination date (provided your termination was not as a result of Your breach of the terms of this Agreement), and any outstanding debit balance shall be paid by You to MobiCow within 30 days of termination of this Agreement. Payments made after 30 days of termination may accrue interest in the amount of 1.5% per month of the amount owed. All payments are subject to recovery for Charge-backs. Upon termination of this Agreement, any permissions granted under this Agreement will terminate, and You must immediately remove all Links, MobiCow Media or other content to Advertiser(s). Provisions of this Agreement that by their nature and context are intended to survive the termination of this Agreement shall survive the termination of this Agreement to the extent that and as long as is necessary to preserve a party's rights under this Agreement that accrued prior to termination.
Changes to the Publisher Network Service. MobiCow.com reserves the right to change, modify, add or remove portions of this Agreement at any time and may add to, change, suspend or discontinue any aspect of the Service at any time. In the event of any material change, MobiCow.com may notify You via e-mail, newsletter or the MobiCow.com Web site at least 7 days prior to any such changes taking effect, at which time You may either agree to such changes or withdraw from the Service and any amounts due shall be paid in accordance with the Payout policy. Your continued use of the Service shall automatically be determined as Your approval of any such changes.
9. Representations, Warranties, Disclaimers and Limitations
Business Operations. Each party will make reasonable commercial efforts to keep its Web Site operational during normal business hours. However, the parties agree that it is normal to have a certain amount of system downtime and agree not to hold each other or Your Advertisers liable for any of the consequences of such interruptions. MobiCow may modify the Publisher Network Service, or discontinue providing the Publisher Network Service, or any portion thereof, at any time.
Authority. Each party represents and warrants to the other party as to itself that the person executing this Agreement is authorized to do so on such party's behalf. IF YOU ARE AN INDIVIDUAL, YOU REPRESENT AND WARRANT THAT YOU WERE AT LEAST 18 YEARS OF AGE ON THE EFFECTIVE DATE OF THIS AGREEMENT.
Non-infringement Warranties. You represent and warrant that: (i) You have all appropriate authority to operate, and to any and all content on, Your Web Site(s); (ii) You have all appropriate authority in any promotional method you may choose to use; (iii) Your Web Site(s) and Your promotional methods do not and will not infringe any third party, MobiCow's Advertiser, or MobiCow's, proprietary rights; and (iv) You shall remain solely responsible for any and all Web Sites owned and/or operated by You and all of Your promotional methods. MobiCow may or may not review all content on Your Web Site or used by You in Your promotional methods.
Compliance with Laws. You are responsible for compliance with the requirements of all relevant legislation (including subordinate legislation and the rules of statutorily recognized regulatory authorities) in force or applicable in the United States or in any other applicable territory (for example, laws related to online gaming in the United States), and warrant that no promotion method used by You or the content of Your Web Site(s) will render MobiCow liable to any proceedings whatsoever.
Limitation of Liabilities. ANY OBLIGATION OR LIABILITY OF MobiCow, ITS PARENTS, SUBSIDIARIES, PARTNERS UNDER THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL OF YOUR PAYOUTS PAID TO YOU BY MobiCow UNDER THIS AGREEMENT DURING THE THREE MONTHS PRECEDING THE CLAIM. NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST THE OTHER PARTY TO THIS AGREEMENT MORE THAN ONE YEAR AFTER THE TERMINATION OF THIS AGREEMENT. YOU AGREE THAT MobiCow SHALL NOT BE LIABLE TO YOU, OR ANY THIRD PARTY (INCLUDING BUT NOT LIMITED TO A CLAIM BY ANOTHER PUBLISHER OR AN ADVERTISER OF THE NETWORK SERVICE), FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF GOODWILL, LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIM. MobiCow.COM WILL MAKE REASONABLE COMMERCIAL EFFORTS TO KEEP ITS SERVICE OPERATIONAL DURING NORMAL BUSINESS HOURS. HOWEVER, CERTAIN TECHNICAL DIFFICULTIES MAY, FROM TIME TO TIME, RESULT IN TEMPORARY SERVICE INTERRUPTIONS. MobiCow.COM SHALL NOT BE RESPONSIBLE FOR ANY SYSTEM DOWNTIME. YOU FURTHER AGREE NOT TO HOLD MobiCow.COM LIABLE FOR ANY OF THE CONSEQUENCES OF SUCH INTERRUPTIONS.
Disclaimer of Warranties. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, MobiCow DISCLAIMS ALL WARRANTIES IMPLIED, INCLUDING, BUT NOT LIMITED TO, (A) MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, (B) THAT THERE ARE NO VIRUSES OR OTHER HARMFUL COMPONENTS, (C) THAT MobiCow’S SECURITY METHODS WILL BE SUFFICIENT, (D) REGARDING CORRECTNESS, ACCURACY, OR RELIABILITY, (E) AGAINST INTERFERENCE WITH ENJOYMENT OF THE PUBLISHER'S INFORMATION OR WEB SITE, OR (F) INTERFERENCE OR DELAY WITH THE FUNCTIONING OF THE PUBLISHER'S WEB SITE AS THE RESULT OF THE PUBLISHER'S USE OF THE MobiCow SERVICE OR MobiCow MEDIA. THE MobiCow MEDIA SHALL BE EMBEDDED AT THE PUBLISHER'S WEB SITE AND WHILE THE MobiCow MEDIA IS PROVIDED USING A GLOBALLY RECOGNIZED DELIVERY NETWORK OR THIRD-PARTY PROVIDERS, THE USE OF THE MobiCow MEDIA ON A WEB SITE MAY DELAY THE LOADING OR FUNCTIONING OF THE PUBLISHER'S WEB SITE. YOU HEREBY ACKNOWLEDGE THAT THE USE OF MobiCow AND ITS SERVICE AND EMBEDDING OF THE MobiCow MEDIA ON YOUR WEB SITE MAY DELAY OR CAUSE TO BE DELAYED THE FUNCTIONING OF YOUR WEB SITE AND YOU SHALL NOT HOLD MobiCow LIABLE FOR ANY DAMAGES (WHETHER CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES) FOR SUCH OCCURENCES. ALL 'INFORMATION' AND 'COMPUTER PROGRAMS' PROVIDED TO YOU IN THE COURSE OF THIS AGREEMENT ARE PROVIDED WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. MobiCow IS, UNDER NO CIRCUMSTANCES, RESPONSIBLE FOR THE PRACTICES, ACTS OR OMISSIONS OF ANY ADVERTISER OR PUBLISHER, OR SUCH ADVERTISER OR PUBLISHER'S WEB SITE(S), AND/OR THE CONTENT OF AN ADVERTISER'S WEB SITE OR THAT AN ADVERTISER MAKES AVAILABLE THROUGH THE NETWORK SERVICE.
YOU HEREBY AGREE THAT MobiCow AND THE MobiCow PAYMENT PARTNER SHALL NOT BE LIABLE FOR ANY LOSSES YOU MAY INCUR AS A RESULT FOR ANY DELAY IN PAYMENT, INCLUDING DELAYS AS A RESULT OF MobiCow OR MobiCow’S PARTNER NEGLIGENCE OR MISCONDUCT. MobiCow SOLE LIABILITY SHALL BE TO MAKE FULL PAYMENT OF THE PAYOUT AMOUNT DUE AS SOON AS POSSIBLE.
Remedies. No remedy or election shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity.
Benefit of the Bargain. THE PROVISIONS OF THIS SECTION 9 ARE AN ESSENTIAL ELEMENT OF THE BENEFIT OF THE BARGAIN REFLECTED IN THIS AGREEMENT.
10. Publisher's Indemnification Obligations
Publisher shall defend, indemnify and hold MobiCow and Advertisers harmless against all claims, suits, demands, damages, liabilities, losses, penalties, interest, settlements and judgments, costs and expenses (including attorneys' fees) incurred, claimed or sustained by third parties, including but not limited to Advertisers, directly or indirectly as a result of (a) Publisher's breach of or non-compliance with this Agreement, (b) Publisher's violation of any law, or an alleged violation of law by MobiCow, that is a direct or indirect result of Publisher's use of the Publisher Network Service, (c) Publisher's use of the Network Service, (d) Publisher's participation in any Program, (e) any content, goods or services offered, sold or otherwise made available by Publisher to any person, (f) Publisher's acts or omissions in using, displaying or distributing any internet links or Links obtained from the Publisher Network Service or elsewhere, including but not limited to Publisher's use of internet links or Links, (g) any claim that MobiCow is obligated to pay tax obligations in connection with payment made to Publisher pursuant to this Agreement and/or any Advertiser's Program, and (h) any violation or alleged violation by Publisher of any rights of another, including breach of a person's or entity's intellectual property rights (each (a)-(h) individually is referred to hereinafter as a "Claim"). Should any Claim give rise to a duty of indemnification under this Section 10, MobiCow shall promptly notify Publisher, and MobiCow shall be entitled, at its own expense, and upon reasonable notice to Publisher, to participate in the defense of such Claim. Participation in the defense shall not waive or reduce any of Publisher's obligations to indemnify or hold MobiCow harmless. Publisher shall not settle any Claim without MobiCow's prior written consent. Publisher also shall indemnify for any reasonable attorneys' fees or other costs incurred by an indemnified party in investigating or enforcing this Section 10. In the context of this Section 10 only, the term "MobiCow" shall include officers, directors, employees, corporate affiliates, subsidiaries, parents, agents, partners and subcontractors
Headings and References. Headings of Sections are for the convenience of reference only. Words indicated in quotes and capitalized signify an abbreviation or defined term for indicated words or terms, including those definitions contained in the opening paragraph.
Third Party Disputes. In the event of a third party claim against either: (a) MobiCow's intellectual property; or (b) against MobiCow's right to offer any service or good on MobiCow's Web site(s) or if, in MobiCow's opinion, such a claim is likely, MobiCow shall have the right, at its sole option and in its sole discretion, to (i) secure the right at MobiCow's expense to continue using the intellectual property or good or service; or (ii) at MobiCow's expense replace or modify the same to make it non-infringing or without misappropriation.
Relationships of Parties/Third Party Rights. The relationships of the parties to this Agreement shall be solely that of independent contractors, and nothing contained in this Agreement shall be construed otherwise. Nothing in this Agreement or in the business or dealings between the parties shall be construed to make them joint venturers or partners with each other. Neither party shall do anything to suggest to third parties that the relationship between the parties is anything other than that of independent contractor. You agree that Your consent is not necessary to modify any Advertiser Service Agreement.
Choice of Law/Attorneys' Fees. This Agreement is governed by the laws of the State of California (USA), except for its conflict of law provisions. The exclusive forum for any actions related to this Agreement shall be in the state courts, and, to the extent that federal courts have exclusive jurisdiction, in Los Angeles, California. The parties consent to such venue and jurisdiction and waive any right to a trial by jury. The application of the United Nations Convention on the International Sale of Goods is expressly excluded. A party that primarily prevails in an action brought under this Agreement is entitled to recover from the other party its reasonable attorneys’ fees and costs.
Force Majeure. Neither party shall be liable by reason of any failure or delay in the performance of its obligations hereunder for any cause beyond the reasonable control of such party, including but not limited to electrical outages, failure of Internet service providers, default due to Internet disruption (including without limitation denial of service attacks), riots, insurrection, acts of terrorism, war (or similar), fires, flood, earthquakes, explosions, and other acts of God.
Severability/Waiver. If any provision of this Agreement is held by any court of competent jurisdiction to be illegal, null or void or against public policy, the remaining provisions of this Agreement shall remain in full force and effect. The parties shall in good faith attempt to modify any invalidated provision to carry out the stated intentions in this Agreement. The waiver of any breach of any provision under this Agreement by any party shall not be deemed to be a waiver of any preceding or subsequent breach, nor shall any waiver constitute a continuing waiver.
Assignment and Acknowledgement. Neither party may assign this Agreement without the prior express written permission of the other party. Notwithstanding the foregoing, Your consent shall not be required for assignment or transfer made by MobiCow (1) due to operation of law, or (2) to an entity that acquires substantially all of MobiCow's stock, assets or business, or (3) to a related entity (e.g. parent or subsidiary of parent). Your use of the Publisher Network Service is irrefutable acknowledgement by You that You have read, understood and agreed to each and every term and provision of this Agreement. MobiCow may establish from time to time rules and regulations regarding use of the Publisher Network Service as published on the Publisher Network Service and incorporated herein.
Marketing. Publisher agrees that MobiCow may identify it as an MobiCow Publisher in client lists and may use Publisher's name and/or logo solely for such purpose in its marketing materials. Any other uses of Publisher's name and/or logo not otherwise described or contemplated herein shall require Publisher's prior written consent.
Tax Status and Obligations. MobiCow is not obligated to and shall not provide You with tax and/or legal advice. MobiCow undertakes no duty to investigate or research Your tax status and/or obligations, and such research and investigation is solely Your responsibility. You are obligated to independently assess and comply with all relevant tax and legal requirements, and Advertiser is responsible for its own sales tax collection and reporting obligations arising from sales made to Visitors. If MobiCow provides You with information regarding a particular Advertiser or Publisher, the information shall not be deemed tax or legal advice, and MobiCow shall not be responsible for the accuracy of such information. Any Publisher or Advertiser addresses provided to You are addresses provided by the relevant Advertiser or Publisher, and such addresses may not necessarily indicate the location or presence of the Publisher or Advertiser in such location or elsewhere.
Entire Agreement, Assignment and Amendment. This Agreement, including the Introduction, contains the entire understanding and agreement of the parties and there have been no promises, representations, agreements, warranties or undertakings by either of the parties, either oral or written, except as stated in this Agreement. This Agreement may only be altered, amended or modified by an instrument that is assented to by each party to this Agreement by verifiable means, including without limitation by written instrument signed by the parties or through a "click through" acknowledgement of assent. No interlineations to this Agreement shall be binding unless initialed by both parties. Notwithstanding the foregoing, MobiCow shall have the right to change, modify or amend ("Change") this Agreement, in whole or in part, by posting a revised Agreement at least 14 days prior to the effective date of such Change. Your continued use of the Network Service after the effective date of such Change shall be deemed Your acceptance of the revised Agreement.
IF YOU ARE AN INDIVIDUAL, YOU REPRESENT AND WARRANT THAT YOU WERE AT LEAST 18 YEARS OF AGE ON THE EFFECTIVE DATE OF THIS AGREEMENT.
Last update: May 2012
Terms Of Service