Adultmoda Publisher Terms and Conditions
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”).
This includes the serving, tracking and reporting of each Campaign made on the WAP sites of the Adultmoda network of publishers ("Network").
By signing up as a Publisher, Publisher hereby understands and agrees to these Terms and Conditions.
2) CONTRACT DETAILS
This contract is non-exclusive, meaning that the Publisher can use other ad networks or adverts in conjunction with Adultmoda across its site(s) with the following agreed exceptions:
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.
Creatives (“Creatives”) 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.
5) TERMS
(5.1) Adultmoda reserves the right to refuse service to any new or existing Publisher for any reason, in its sole discretion. Approval of membership in the Network is limited only to the specific root URLs (the "WAP sites") for which Publisher has applied. Adultmoda reserves the right, in its sole discretion, to reject, omit or exclude any Publisher or WAP site for any reason at any time, with or without notice to the Publisher and regardless of whether such Publisher or WAP site was previously accepted.
(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 authorized 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 Creatives to the WAP sites.
(5.3) Term and Termination:
This is a rolling 36 month agreement effective from the Effective Date. At the end of the 36 months the agreement will carry for a further 36 months.
Adultmoda reserves the right to terminate any Publisher's relationship with Adultmoda at any time, with or without cause. Termination notice will be provided via email and will be effective immediately upon receipt. 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 Creatives from Adultmoda or otherwise (collectively, the "Adultmoda 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. Upon termination all ties to referrals will be permanently severed and Publisher will not receive nor be entitled to receive future referral commissions hereunder.
Publisher may terminate this agreement with a minimum of 3 months notice after an initial period of 6 months.
(5.4) Content: Adultmoda reserves the absolute right to refuse to affiliate with any Publisher. This Agreement is voidable by Adultmoda immediately if Publisher fails to disclose, conceals or misrepresents itself in any way. In addition, Adultmoda may in its sole discretion refuse to serve any WAP site that it deems inappropriate.
(5.5) Traffic
(5.5.1) Adultmoda reserves the right to terminate Publisher's relationship with Adultmoda immediately if the Publisher's traffic falls below a minimum threshold, or the Publisher fails to achieve a minimum CTR, established by Adultmoda from time to time. Adultmoda reserves the right to change the minimum traffic threshold or minimum CTR at any time in response to market pressures.
(5.5.2) If Publisher accepts or chooses an Ad campaign from a specific Advertiser which requires specific traffic, per country, or per genre the Publisher must only place the ads on pages generating such traffic.
(5.6) Default 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 Publisher has traffic in excess of 100,000 WAP impressions per month then Adultmoda has the option of providing free Publisher-defined default redirects expressly for this reason, also known as House Ads. Publisher-defined defaults ads must adhere to the content guidelines outlined for all Adultmoda Advertisers. Publishers found using default ads that violate the content restrictions of the Advertiser Agreement will be removed from the Network. If Publisher chooses not to specify a default redirect, or if Adultmoda chooses not to display House Ads, or if Publisher generates less than 100,000 WAP impressions per month, then Adultmoda will not display ads on Publisher's WAP sites(s) when paid advertising is unavailable. Adultmoda may also display so-called "house ads" on Publisher's WAP sites when technical difficulties require it. "House ads" are not paid advertising. Under no circumstances does Adultmoda guarantee to provide any percent fill of paid advertising to a WAP site. Note, All Publishers who use Adultmoda XHTML/WML ad serving code are required to use House Ads.
(5.7) Placement: Publisher shall be solely responsible for placing Creatives on the WAP sites, which shall be subject to the terms and conditions of this Agreement. No Creative may be placed on any root URL not specifically approved by Adultmoda for membership within the Network.
All CPC Adultmoda ad code must be placed and appear on the upper third portion ('above the fold') of any WAP page containing such code. All CPM Adultmoda ad code must be placed and appear on the top of any WAP page containing such code. Publisher agrees to use the Adultmoda ad code provided for displaying no more than one text ad and one banner ad per page.
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. Creatives cannot be placed in email or on WEB sites.
Publishers may place the Adultmoda code on any and all appropriate pages within an approved WAP site/domain.
(5.8) Fraud and Deception: Adultmoda audits every Publisher's traffic on a daily basis. Publishers that commit fraudulent activities, including false clicks, false impressions, and incentivised clicks, 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.
All Creatives must be served from an Adultmoda server or serving location, or through an Adultmoda approved 3rd-party-hosted server. Stored images that are loaded from a different location will not count towards any statistic or payment. Publishers agree to not artificially inflate traffic counts using a program, script, device, or other means. Excessive page reloading or any other abuse of our system could result in legal action. No Publisher shall induce visitors to click on Creatives based on incentives, provided, however, that, with the prior written approval of Adultmoda, certain language may appear above or below an advertisement served by Adultmoda. 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.
Spamming
Publisher warrants that it will not send any commercial text or email to any person who has requested not to receive text or email from the Publisher and/or Advertiser and that they are in full compliance with Spam Acts, email and Premium SMS regulations, and legal requirements. Publisher also understands that upon doing so it automatically forfeits the right and claim to any revenue generated for its account, and Publisher's account will be immediately terminated with no payments being made to Publisher. Publisher further agrees that all of Publisher's business will be in compliance with all local, State, and Federal anti-spam and Premium SMS policies and all other applicable laws and regulations, for example, but not limited to, ICSTIS in the UK.
Repeats
Publishers agree not to permit repeated instances of multiple clicks, subscriptions and/or acquisitions from a single user. Publishers found to be encouraging or supporting such actions will be terminated immediately.
Approved WAP sites
Publishers agree to place banner code only on WAP sites that have been pre-approved by Adultmoda.
(5.9) Code: Adultmoda Code shall not be modified without prior written consent from Adultmoda. Publisher cannot alter, copy, modify, take, sell, reuse, or divulge any Adultmoda Code, except as is necessary to partake in the Network, provided, however, with the prior written approval of Adultmoda, a Publisher may, in certain instances, modify the Adultmoda Code for purposes of inserting certain language/text pre-approved by Adultmoda either above or below an advertisement served by Adultmoda. Any modifications to Adultmoda 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 Code solely for purposes of receiving and displaying the Creatives and performing Publisher’s other obligations hereunder. Except for the limited license expressly granted in this Section, nothing in this Agreement shall be construed as Adultmoda granting Publisher any right, title or interest in or to the Adultmoda Code or any right under any patent, trade secret or other intellectual property rights of Adultmoda. Publisher acknowledges and agree that Adultmoda owns all right, title and interest in and to the Adultmoda 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 Code, or the results created thereby, or disseminate or distribute any of this information, except as expressly permitted by this Agreement.
(5.10) 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 privacy policy. Publisher may only access Data that is collected through the use of their inventory.
(5.11) WAP site content: 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.
(5.12) 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 has no control of the availability of the services on a continuous or uninterrupted basis. Publisher also understands and agrees that Adultmoda is not responsible for the functionality of any third party website, WAP site, or interface. 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 contract.
6) PAYMENT
Adultmoda payout rate is currently 65% of campaign market rate.
Adultmoda in no event is bound by the published CPM or CPC rate. Campaign rates frequently vary with market conditions, and actual Campaign rates can be more or less than published rates. Adultmoda reserves the right to set market rates. Market rates are less any payment transaction fees, campaign referral fees, cost-of-money / bad-debt fees, and applicable ad serving fees. Adultmoda reserves the right to set and negotiate specific ad rates on an individual client-by-client basis. Publishers will be paid forty five (45) days after the end-of-month. E.g., payment for impressions delivered in the month to the end of January will be paid for on or by the 15 March.
It is the Publisher's responsibility to maintain up-to-date contact and payment details with Adultmoda. Any loss of revenue or charges resulting from inaccurate contact details will be born by the Publisher.
The Publisher agrees to cover any costs associated with transfers of payment.
No payment will be issued for any amount less than £100 (Please note. Non-UK bank accounts: Publisher pays all bank charges on payments of less than £500). All unpaid earnings will rollover to the next pay period. Any Publisher account that goes unpaid for six (6) months becomes subject to immediate payoff and dismissal from the Network.
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. Examples of such acts may include, without limitation, clicks without referring URLs, extraordinary high numbers of repeat clicks, and clicks from non-approved root URLs.
Adultmoda will not pay or compensate Publishers in any way for any impressions, clicks, leads or acquisitions that have been received and rejected by advertiser for any reason, including but not limited to, invalid data, incomplete data, or fraudulent data (as determined by Adultmoda), that can be attributed directly to a specific Publisher and/or WAP site, or that have been deemed by Adultmoda to be invalid, or fraudulent. In the event that the Publisher has already received payment for invalid leads or acquisitions, Adultmoda reserves the right to seek credit or remedy from future earnings or to demand re-imbursement from Publisher.
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: Publisher shall not release any information regarding Campaigns, Creatives, or Publishers relationship with Adultmoda or its customers, including, without limitation, in press releases or promotional or merchandising materials, without the prior written consent of Adultmoda. Adultmoda shall have the right to reference and refer to its work for, and relationship with, Publisher for marketing and promotional purposes. No press releases or general public announcements shall be made without the mutual consent of Adultmoda and Publisher.
(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) Audit: Adultmoda shall have the sole responsibility for calculation of Publisher earnings, including Impressions and Click Through numbers. In the event Publisher disagrees with any such calculation, Publisher shall send an email request 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.
(7.5) Assignment: No rights or obligations under this Agreement may be assigned by Publisher without the prior written consent of Adultmoda. Adultmoda and any of its subsequent assignees may assign this Agreement, in whole or in part, or any of its rights or delegate any of its duties, under this Agreement to any party.
(7.6) Ability to Enter into Agreement: By executing this Agreement, Publisher warrants that Publisher (or Authorized Representative of Publisher) is at least 18 years of age, and that there is no legal reason that Publisher cannot enter into a binding contract.
(7.7) 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. Publisher agrees that it will not work with any current or previous Adultmoda advertiser directly, or through any other ad network or ad agency, for a period of 12 months after this agreement is terminated by either party. If an advertiser, who has previously run ad campaigns 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.
(7.8) Relationship of Parties
For purposes of this Agreement, each party shall be and act as an independent contractor. 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.
(7.9) Notices: Except as expressly set forth herein, any notices to be given by pursuant to this Agreement shall be in writing and sent by email to the party to be notified, addressed to Adultmoda at the following email address in accordance with this provision. The receipt of such notice shall constitute the giving thereof: info@mobvision.com
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.
(7.10) 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.
(7.11) Indemnification: Publishers will at all times indemnify and hold harmless Adultmoda from and against any and all Losses arising out of any arising out of the Publisher's breach of any representation, warranty or obligation hereunder, or any alleged breach of any representation, warranty or obligation to any other party.
(7.12) 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.
(7.13) Attorneys' Fees: If any action in law or in equity is necessary to enforce this Agreement, the prevailing party will be entitled to reasonable attorneys' fees and costs and expenses in addition to any other relief to which such party may be entitled.
(7.14) 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
(7.15) 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.
(7.16) 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.