1) PARTIES

The purpose of this document is to memorialise the terms by which MobVision’s Mobile Advertising Solution – Adultmoda or its subsidiaries (“Adultmoda”) and the Publisher (“Publisher”) have agreed to work together (the “Agreement”).

By signing up as a Publisher, Publisher hereby understands and agrees to these Terms and Conditions.

2) AGREEMENT DETAILS

This Agreement is non-exclusive, meaning that the Publisher can use other ad networks or adverts in conjunction with Adultmoda across its site(s).

3) DATE (“Effective Date”)

The Effective Date is the date you are activated as a Publisher.

4) DEFINITIONS

Impressions (“CPM”)

Adultmoda offers WAP sites the ability to receive payment on a cost-per-thousand (“CPM”) structure. The Publisher is paid when an ad is shown to a visitor. Ad views are aggregated on into groups of one thousand impressions and payments are calculated for each one thousand ads shown.

Click-through (“CPC”)

Adultmoda offers WAP sites the opportunity to generate revenue based on the cost-per-click (“CPC”) advertising model. A click is counted when a unique visitor to a Publisher’s WAP site clicks on an advertisement.

Ads (“Ad, Ads”)

Refers to all ads that are served onto Publisher’s WAP sites – including, but not limited to, text links, banners, buttons, interstitials, pop ups.

WAP Site(s) (“WAP Site(s)”)

Refers to all WAP sites, mobile internet sites, mobile web sites, and mobile applications which are publishing Adultmoda ads.

Advertiser(s)

Refers to the companies that are running advertising campaigns using the Adultmoda mobile advertising solution.

Network

Refers to the Adultmoda mobile advertising solution.

5) TERMS

(5.1) Adultmoda reserves the right to refuse service to any new or existing Publisher for any reason, in its sole discretion.

(5.2) Representation: Publisher represents and warrants that the WAP sites: (1) are owned by or licensed to Publisher; (2) do not violate any law, statute, ordinance, treaty or regulation; (3) do not infringe in any manner on any copyright, patent, trademark, trade secret or other intellectual property right of any third party; (4) do not breach any duty toward or rights of any person or entity including, without limitation, rights of publicity or privacy, and have not otherwise resulted in or are not likely to result in any consumer fraud, product liability, tort, breach of contract, injury, damage or harm of any kind to any person or entity; (5) are not false, deceptive or misleading; (6) are not defamatory, libellous, slanderous or threatening; and (7) are free of viruses, Trojan horses, trap doors, back doors, worms, time bombs, cancelbots, spyware and other computer programming routines that may potentially damage, interfere with, intercept, or expropriate any system, data or personal information. Publisher also represents, warrants and covenants that: (i) Publisher has the power and authority to enter into and perform its obligations under this Agreement; (ii) Publisher shall not be in violation of any obligation, contract or agreement by entering into this Agreement, by performing its obligations hereunder or by authorising and permitting Adultmoda to perform the services hereunder; (iii) Publisher shall comply with all of the terms and conditions of this Agreement, as amended from time to time; (iv) all information provided by Publisher to Adultmoda or posted on the WAP sites by Publisher is truthful, accurate and complete, and is not misleading in any way; (v) Adultmoda is hereby authorised by Publisher to perform all the services described hereunder with respect to Publisher and the WAP sites. Publisher grants Adultmoda and the customer the right and license to transmit the Ads to the WAP sites.

(5.3) Term and Termination:

(5.3.1) This Agreement is effective from the Effective Date.

(5.3.2) Standard Termination. Adultmoda reserves the right to terminate this Agreement and the Publisher account at any time, with or without cause. Notice of termination will be provided via email and will be effective immediately upon sending. Upon receipt of such termination notice, Publisher agrees to immediately remove from the WAP sites any and all of Adultmoda’s software code supplied to Publisher for serving Ads from Adultmoda or otherwise (collectively, the “Adultmoda Ad Code”). Publisher will be paid, in the next scheduled payment cycle following termination, all legitimate, non-fraudulently accrued earnings due up to the time of termination.

(5.3.3) No Activity Termination. Adultmoda reserves the right to terminate Publisher’s account if there has been no activity during the previous 6 months. Any accrued unclaimed funds will be annulled.

(5.3.4) Suspected Fraudulent Activity Termination. Adultmoda reserves the right to terminate this Agreement at any time if there is suspicion of fraudulent activity by the Publisher. The Publisher account will be terminated and any accrued funds will be annulled without notification.

(5.3.5) Publisher may terminate this Agreement at any time by submitting a support ticket.

(5.4) Displaying Ads from Specific Named Advertisers

Publisher acknowledges that Adultmoda is a blind, run-of-network ad network. However if Publisher works with Adultmoda in such a way that allows the Publisher to accept Ad campaigns from specific named Advertisers in specific countries the Publisher must only place the ads on pages generating such traffic.

(5.5) House Ads

Publisher acknowledges and agrees that Adultmoda may not be able to fill 100% of advertising requests sent to its servers with paying ads. If House Ads are shown when there is no paid ad then the House Ad must adhere to the content guidelines outlined for all Adultmoda Advertisers. If Publisher is using WML/XHTML code for displaying Adultmoda ads then House Ads are mandatory.

(5.6) Placement

(5.6.1) Publisher shall be solely responsible for placing Ads on the WAP sites.

(5.6.2) Approved WAP sites and Domains: Publishers agree to place banner code only on WAP sites and Domains that have been pre-approved by Adultmoda.

(5.6.3) All CPM Adultmoda ad code must be placed and appear on the top of any WAP page containing such code.

(5.6.4) Publisher agrees to use the Adultmoda ad code provided for displaying no more than one text ad and one banner ad per page.

(5.6.5) Publisher must only display Adultmoda ads on pages suitable for viewing by those over the age of 18. It is strictly prohibited to display Adultmoda ads on non-adult pages. Publishers that display Adultmoda ads on non-adult pages may result in non-payment and removal from the network.

(5.6.6) No Publisher will place ads on blank pages, on pages with no content, on top of one another, on non-approved WAP sites, or in such a fashion that may be deceptive to the visitor. Ads cannot be placed in email or on WEB sites.

(5.7) Fraud and Deception: Adultmoda continually audits every Publisher’s traffic. Publishers that commit fraudulent activities may result in non-payment, removal from the network, and/or additional legal action. Adultmoda reserves the right to require Publishers to provide server log files upon request. Additionally, Adultmoda reserves the right to register fraudulent Publishers in a global ad network fraud database, for usage by other ad networks. Adultmoda has several fraud mechanisms at their disposal that will detect most forms within a few days of the initial activity.Publishers agree to not artificially inflate traffic counts using a program, script, device, or other means. Excessive page reloading or any other abuse of Adultmoda’s system could result in legal action. Without limiting the foregoing, the following methods of generating visitor interest are unacceptable to Adultmoda and may be grounds for dismissal from the Network: use of unsolicited email or inappropriate newsgroup postings to promote WAP site(s); auto-spawning of browsers; automatic redirecting of users; clicking on own banners; blind text links; misleading links; or any other method that may lead to artificially high numbers of impressions or clicks. Further: Publishers are prohibited from offering any kind of incentive, including but not limited to cash, credits, loyalty points or any such rewards in an attempt to generate results or in securing leads. If a Publisher is found incentivising offers they may be removed from the Network.

(5.8) Adultmoda Ad Code

(5.8.1) Adultmoda Ad Code shall not be modified without prior written consent from Adultmoda. Publisher cannot alter, copy, modify, take, sell, reuse, or divulge any Adultmoda Ad Code, except as is necessary to partake in the Network. Any modifications to Adultmoda Ad Code shall be owned solely by Adultmoda. Subject to the terms and conditions of this Agreement, Adultmoda grants Publisher a world-wide, revocable, non-transferable, non-sublicensable, limited use license to use, execute, and display the Adultmoda Ad Code solely for purposes of receiving and displaying the Ads and performing Publisher’s other obligations hereunder. Ads must be displayed correctly as served by Adultmoda. If Banners should have text below then it must be displayed.

(5.8.2) Nothing in this Agreement shall be construed as Adultmoda granting Publisher any right, title or interest in or to the Adultmoda Ad Code or any right under any patent, trade secret or other intellectual property rights of Adultmoda. Publisher acknowledges and agrees that Adultmoda owns all rights, title and interest in and to the Adultmoda Ad Code (including, without limitation, all software and technology underlying any such product, service, and/or information) and all related intellectual and proprietary rights of any kind anywhere in the world. Publisher agrees that they will not use the Adultmoda Ad Code, or the results created thereby, or disseminate or distribute any of this information, except as expressly permitted by this Agreement.

(5.9) Statistics/Data/Reporting: Adultmoda owns all data collected by or through Adultmoda’s code and/or any or all reports, results, and/or information created, compiled, analysed and/or derived by Adultmoda from such data (collectively, “Data”). All Data shall be deemed Adultmoda’s Confidential Information. Any use by Publisher of such Data shall be only as expressly permitted in this Agreement and in strict compliance with Adultmoda’s confidentiality policy. Certain Data is presented to Publishers within their Adultmoda statistics interface. Adultmoda shall have the sole responsibility for calculation of Publisher earnings, impressions, and clicks. Whilst Adultmoda makes every effort to keep statistics error free, the Publisher acknowledges that Adultmoda does not guarantee the statistics and revenue calculations will be error free all of the time. If Adultmoda discovers a fault then Adultmoda will provide Publisher with an explanation and an adjustment as the case may be. In the event Publisher disagrees with any such calculation, Publisher shall submit a support ticket immediately to Adultmoda, detailing, with reasonable specificity, Publisher’s objections to calculations. Thereafter, Adultmoda will provide Publisher with an explanation or, if such calculations are determined by Adultmoda to be incorrect, an adjustment, of the numbers with explanation or adjustment, as the case may be. This shall be final and binding. In the event that no adjustment is necessary, Publisher shall reimburse Adultmoda for its expenses in responding to Publisher’s requests under this section.

(5.10) Publisher hereby acknowledge that Adultmoda is not responsible for the content or maintenance of Publisher’s WAP sites, or WAP sites owned or operated by any third party. Publisher also acknowledge that Adultmoda is not responsible for any of the Advertisers’ content, WAP sites, applications, or billing methods.

(5.11) Traffic Limitations: Publisher understands and agrees that from time to time the Adultmoda services hereunder may be inaccessible, unavailable or inoperable for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which Adultmoda may undertake from time to time; or (iii) causes beyond the control of Adultmoda or which are not reasonably foreseeable by Adultmoda, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks, the unavailability, operation, or inaccessibility of WAP sites or interfaces, network congestion or other failures. While Adultmoda will attempt to provide the services on a continuous basis, Publisher acknowledges and agrees that Adultmoda gives no guarantee of the availability of the services on a continuous or uninterrupted basis. Terms of this agreement are subject to Adultmoda hardware, software, and bandwidth traffic limitations. Failure to deliver because of technical difficulties does not represent a failure to meet the obligations of this Agreement.

6) PAYMENT

(6.1) Adultmoda payout rate is currently 65%.

(6.2) The CPC and CPM rates of live campaigns are not guaranteed or fixed. We offer a variable pricing model. Adultmoda reserves the sole right to set its CPC and CPM rates and to set and negotiate specific ad rates on an individual client-by-client basis.

(6.3) Adultmoda reserves the right to only pay a Publisher when Adultmoda itself has been paid by the Advertiser.

(6.3) Payments are made automatically every month by either bank transfer or online payment processor. Payments are made forty days after the end of the month in which the revenue was earned. Payments will only be made when Publisher has submitted correct payment information on the `My Details’ page. Incorrect payment details will result in loss of revenue and/or a £200 administration fee, and may lead to termination of the account.

(6.4) Publishers agree to pay all payment charges imposed by banks or online payment processors.

(6.5) The minimum payout is £100. All unpaid earnings will rollover to the next pay period.

(6.6) Adultmoda, reserves the absolute right not to pay any accounts or Publishers that violate any of the terms and conditions set forth herein. Adultmoda will be responsible for determining, in its sole and absolute discretion, what acts and omissions violate this policy, and which acts include activity that is deceptive or fraudulent in nature.

(6.7) Adultmoda will not pay or compensate Publishers in any way for any impressions or clicks that have been deemed by Adultmoda to be invalid or fraudulent. In the event that the Publisher has already received payment for invalid impressions or clicks, Adultmoda reserves the right to seek credit or remedy from future earnings or to demand reimbursement from Publisher. Adultmoda will not pay or compensate Publishers in any way for any impressions or clicks if the Publisher account has been terminated due to low activity or no activity.

7) GENERAL

(7.1) Applicability: This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes and replaces all prior and contemporaneous understandings or agreements, written or oral, regarding such subject matter. Any rights not expressly granted in this Agreement are reserved by Adultmoda, and all implied licenses are disclaimed. Headings used in this Agreement are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section or in any way affect this Agreement. Adultmoda reserves the rights to amend any part of this Agreement, at any time.

(7.2) PR and Marketing: No press releases; promotional or merchandising materials; or general public announcements shall be made without the mutual consent of both Parties.

(7.3) Remedy: If any Publisher violates or refuses to partake in their responsibilities, or commits fraudulent activity against Adultmoda, Adultmoda reserves the right to withhold payment and take appropriate legal action to cover its damages.

(7.4) Assignment: No rights or obligations under this Agreement may be assigned by Publisher or Adultmoda without the prior written consent of the other Party.

(7.5) Ability to Enter into Agreement: By executing this Agreement, Publisher warrants that Publisher (or Authorised Representative of Publisher) is at least 18 years of age, and that there is no legal reason that Publisher cannot enter into this binding Agreement.

(7.6) Confidentiality and Non-Circumvention: Each party acknowledges that it will not disclose the confidential information of the other party, except to its employees and professional advisors and except as required by law. If an Adultmoda Advertiser, who is currently running, or has previously run, an ad campaign on the Publisher’s site(s) through Adultmoda, approaches Publisher directly with regards to mobile advertising, the Publisher must refuse to work directly with them, and refer the advertiser back to Adultmoda unless agreed otherwise in writing with Adultmoda.

(7.7) Relationship of Parties: This Agreement does not constitute, create, or give effect to any employer/employee or franchiser/franchisee relationship, nor any joint venture, partnership, limited partnership, or agency among the parties, and the parties hereby acknowledge that no other facts of relations exist that would constitute, create, or give to effect any such relationship between them.

(7.8) Notices: Except as expressly set forth herein, any notices to be given by pursuant to this Agreement shall be in writing and sent by Adultmoda support ticket. The receipt of such notice shall constitute the giving of notice thereof. Any notice to be given to Publisher pursuant to this Agreement may be sent by email to Publisher’s email address as identified in Publisher’s account information. The sending of such notice shall constitute the giving of notice thereof.

(7.9) Waiver: No waiver of any term, provision or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or shall constitute, a waiver of any other term, provision or condition hereof, whether or not similar, nor shall such waiver constitute a continuing waiver of any such term, provision or condition hereof. No waiver shall be binding unless executed in writing by the party making the waiver.

(7.10) Indemnification: Both parties will at all times indemnify and hold harmless the other Party from and against any and all losses arising out of any breach of any representation, warranty or obligation hereunder, or any alleged breach of any representation, warranty or obligation to any other party.

(7.11) Severability: If any provision of this Agreement is held to be ineffective, unenforceable or illegal for any reason, such decision shall not affect the validity of any or all of the remaining portions thereof.

(7.12) Legal Fees: If any action in law or in equity is necessary to enforce this Agreement, the prevailing party will be entitled to reasonable legal fees and costs and expenses in addition to any other relief to which such party may be entitled.

(7.13) Force Majeure: Neither party shall be held liable or responsible to the other party nor be deemed to have defaulted under or have defaulted under or breached this Agreement for failure or delay in fulfilling or performing any term of this Agreement when such failure or delay is caused by or results from causes beyond the reasonable control of the affected party.

(7.14) Limitation of Liability
Adultmoda SHALL NOT HAVE ANY LIABILITY TO THE PUBLISHER FOR LOST PROFITS OR OTHER CONSEQUENTIAL, SPECIAL, INDIRECT OR INCIDENTAL DAMAGES, BASED UPON A CLAIM OF ANY TYPE OR NATURE (INCLUDING, BUT NOT LIMITED TO, CONTRACT, TORT, INCLUDING NEGLIGENCE, WARRANTY OR STRICT LIABILITY), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT Adultmoda’S TOTAL OBLIGATIONS AND/OR LIABILITY CAN NEVER EXCEED THE VALUE OF THE SPECIFIC ADVERTISING CAMPAIGN IN QUESTION.

(7.15) Governing Law: This Agreement will be governed by and construed under the laws of England and Wales without regard to the conflicts of law provisions thereof. Any action relating to this Agreement must be brought in the courts located in England and Wales and Publisher irrevocably consents to the jurisdiction of such courts.