This Publisher Services Agreement (this "Agreement") is a legal agreement between you, the Publisher, and Nativo, Inc. In exchange for the use of a Nativo® secure user account, you agree to be bound by this Agreement, the Nativo Policies and Standard Terms and Conditions.
All Nativo ad units will appear in a position as determined by Nativo and Publisher. Nativo will have no responsibility to review the Nativo ad content, but may screen content according to its internal guidelines. Publisher agrees to not serve advertising of any content on the template page, including but not limited to banner ads, video players, in-text ads, interstitials and rich media units. Publisher agrees to comply with all Nativo Policies, including as they may appear from time to time on the Nativo website.
Nativo will pay Publisher 50% of insertion revenues Nativo receives from advertisers whose advertising units appear on Publisher's Website. For this purpose, revenues include fees for display/insertion of ad units only, net of any credits or refunds made in Nativo's discretion, and do not include any other recurring and non-recurring fees charged to advertisers, including bandwidth fees for hosting video, application fees for access to measurement and tracking tools, program fees relating to creating and managing Nativo ad units, agency commissions, advertiser discounts, and fees for specified services, consulting, technology and creative elements provided to advertisers. There will be a minimum payout of $250 for countries outside of United States and Canada and Publisher is responsible for all fees and applicable taxes –any transfer fees shall be deducted from account. All rates will be determined by Nativo. Nativo reserves the right to change rates from time to time in its sole discretion without notice to Publisher. Nativo does not guarantee any amount of advertising revenues, or the timing of delivery of ad units.
Publishers agree to comply with the following Nativo Policies. Nativo reserves the right to change, modify or waive enforcement of any Policies at any time without notice. Publishers are responsible to keep informed of all current Policies as they appear on Nativo's website.
Publisher may not frame, minimize, remove or otherwise inhibit the full and complete display of any Nativo ad unit. Nativo ad units must be displayed in an un-obscured manner with all ad elements clearly visible and must be formatted to be consistent with the appearance of the other content on the Publisher Website.
Nativo ad units, both the "Brief" and "Full article" component, will be clearly marked using disclaimers such as "sponsored content", "sponsored", or "paid content" and include a separate byline attributing the ad (and content) to an advertiser. In addition, the Full Articles component of Nativo ads, will render the brand or product’s logo within the content. Publisher agrees to comply with Nativo disclaimer policies which may change from time to time. Publisher will be notified of any changes to the disclaimer policy in writing and upon receipt of notification, the Publisher will take steps to comply with the changes within thirty (30) days.
No website except Publisher's indicated Website can display a Nativo ad unit as a result of the actions of any software application. No Nativo may be pasted into any software application. Webpages displaying a Nativo ad unit may not be loaded by any software that can trigger pop-ups, redirect users to unwanted websites, modify browser settings, or otherwise interfere with site navigation.
Any Nativo ad unit must be inserted directly into Website pages without modification. Publisher may not alter, edit, modify, filter or change the order of any information in any Nativo ad unit or change the layout, behavior, targeting, or delivery of Nativo ad units in any manner.
Publisher's Website may not use incentives or encourage users to click on any Nativo ad units or to visit the advertisers' site in order to artificial inflate user traffic and advertising costs. This includes any deceptive or unnatural means to artificially generate clicks or impressions, such as repeated manual clicks or impressions, incentives to click or to generate impressions, using robots, automated click and impression generating tools, third-party services that generate clicks or impressions such as paid-to-click, paid-to-surf, autosurf, and click-exchange programs, or any deceptive software.
Publisher's Website may not include or promote excessive profanity, expletive or inappropriate language; violence, racial intolerance, hate, or advocate against any individual, group, or organization; illicit drugs and drug paraphernalia; pornography, adult, or mature content; gambling or casino-related content; excessive advertising; any content that promotes illegal activity or infringes on the legal rights of others; sales or promotion of weapons, firearms, ammunition, knives, brass knuckles and the like; sales or promotion of alcohol, tobacco or tobacco-related products, prescription drugs, or products that are replicas or imitations of designer goods; content promoting illegal activity, spam, mail fraud, pyramid schemes, or investment opportunities or advice not permitted by law; content that is libelous, defamatory, contrary to public policy, or otherwise unlawful; or any other content or activity determined to be inappropriate by Nativo in its sole and absolute discretion.
Publisher will make best efforts to reply to all communications and Nativo requests in a timely manner.
Standard Terms and Conditions
Nativo shall perform services (the "Services") in a timely and professional manner consistent with industry standards and in accordance with the Agreement. Subject to the foregoing, the manner and means by which Nativo chooses to complete the Services are within Nativo' sole discretion and control. In performing the Services, Nativo agrees to provide its own personnel, equipment, facilities and materials at its own expense. Publisher shall make its Website, facilities, equipment and personnel available to Nativo as reasonably necessary in connection with the Services.
Nativo may perform any of its obligations hereunder through one or more agents, subcontractors or third party providers, provided that (a) each agent, subcontractor or third party provider agrees in writing to the provisions of Sections 5.1, 5.2, 5.3 and 5.4 (Confidential Information), and (b) Nativo remains responsible to Publisher for the performance of the Services and for the acts and omissions of any agent, subcontractor or third party provider.
Any delay in or failure of performance by either party under the Agreement (other than a failure to comply with payment obligations) shall not be considered a breach of the Agreement if and to the extent caused by events beyond the reasonable control of the party affected, including but not limited to acts of God, embargoes, governmental restrictions, strikes, riots, wars or other military action, civil disorders, rebellion, vandalism, or sabotage ("force majeure"). The party whose performance is affected by such events shall promptly notify the other party giving details of the force majeure circumstances. The obligations of the party giving such notice shall be suspended during but not longer than the continuance of the force majeure, and the time for performance of the affected obligation hereunder shall be extended by the time of the delay caused by the force majeure event. In the event that a force majeure event occurs, each party has the duty to mitigate its damages.
All amounts are in United States dollars and do not include sales, use, value-added or import taxes, customs duties or similar taxes that may be assessed by any jurisdiction.
All taxes, duties, fees and other governmental charges of any kind (including sales and use taxes, but excluding taxes based on the gross revenues or net income of Nativo) which are imposed by any governmental agency or political subdivision on the fees for any of the Services provided by Nativo under the Agreement shall be borne by Publisher and shall not be considered a part of, a deduction from, or an offset against such fees.
Nativo' relationship with Publisher shall be that of an independent contractor and nothing in the Agreement shall be construed to create a partnership, joint venture, agency or employer-employee relationship between the parties. Neither party is the agent of the other and neither party shall have any authority to make any agreement, representation, or commitment on behalf of the other party, or otherwise bind the other party in any respect.
Except as otherwise provided in the Agreement, Publisher shall be responsible for obtaining, installing, inter-connecting and maintaining its Website, all computers, servers, and other equipment, software and/or communications services necessary for inter-connection with or otherwise for use in conjunction with the Services and all ad serving software, programming, specifications and other technologies ( "Technology") relating to the Services provided by Nativo. Publisher shall ensure that its Website, computers, serves and other equipment, software, and computer operating systems, are compatible with Nativo' requirements. Nativo shall use reasonable efforts to provide Publisher with prior notice of a change or modification in Nativo' requirements that may affect compatibility. Publisher shall take, at its sole expense, all physical and information systems security measures reasonably necessary to protect its Website, equipment and systems and Publisher shall be responsible for ensuring the security of its data. Publisher acknowledges and agrees that Nativo shall have no liability for any loss resulting from any unauthorized third-party access to Publisher's Website, equipment or data, unless caused by Nativo' acts or omissions.
The parties acknowledge that each party may have access to the other party's Confidential Information. Confidential Information may include the following types of information, whether oral, or in written or electronic form: information, ideas or material of a technical or creative nature, such as inventions, improvements, discoveries, developments, techniques, processes, research and development plans and results, reports, drawings, designs, specifications, works of authorship, data, formulas, files, HTML, computer source and object code, patent applications, and other materials and concepts relating to one party's business, services, processes or technology; information, ideas or materials of a business nature, such as development plans, marketing and sales plans and forecasts, budgets and unpublished financial statements, and other information regarding finances, profits, costs, marketing, purchasing, sales, operations, policies, procedures, personnel, salaries, customers, suppliers and contract terms; personal property, including, without limitation, books, manuals, records, files, reports, notes, contracts, lists, blueprints and other documents and materials, or copies thereof; other trade secrets, information, ideas or materials of or relating in any way to the past, present, planned or foreseeable business, products, developments, technology or activities of a party; and other information held in confidence or which should reasonably be considered confidential under the circumstances under which it was disclosed to the other party.
Each party agree that, except as otherwise provided in writing, it will not disclose the other party's Confidential Information to any other party or use it for its own purposes unless permitted in writing by the other party or unless the use of the other party's Confidential Information is required or anticipated under the Agreement. Each party will use the same level of care it uses to protect its own Confidential Information and will use, at a minimum, reasonable care to protect the other party's Confidential Information. Nativo may use any non-personally-identifiable user information, such as compilations of aggregated statistics, about Publisher, its website, and site-specific information resulting from the Services performed under the Agreement, and may share such information with advertisers, prospective customers, business partners and other third parties. In addition, Nativo may collect personally identifiable information (e.g., name, address, email address, phone number, birth date, gender, zip code, occupation, industry, and personal interests) related only to users of Publisher's Website based upon their interaction with Nativo' delivered Nativo ad units. Nativo may use such information to customize advertising content, display targeted advertisements, improve the Services, conduct research, and for internal reporting purposes. Personally identifiable user information shall not be shared with any third parties. All personally identifiable user information stored on the Publisher's website shall remain the sole property of Publisher.
The following information is not considered Confidential Information under the Agreement: (a) information that is or later becomes known from a party that is not required to maintain the information in confidence; (b) information that is known to the public or is no longer confidential, unless it becomes publicly known or non-confidential because the confidentiality requirement under the Agreement was breached; (c) information that is independently developed without reference to the other party's Confidential Information; and (d) information that is required to be disclosed by law or a court order, but only if the party required to make the disclosure gives the other party reasonable notice of the requirement.
The parties agree that if one party breaches the confidentiality requirements of the Agreement, then the other party will suffer harm and money damages may be an inadequate remedy. As a result, the party suffering harm may ask for an injunction and any other forms of relief from a court.
In addition to the rights described in the Agreement, Publisher agree that Nativo shall be the sole and exclusive owner of all right, title and interest, including, without limitation, copyright, patent, trademark and other intellectual property rights, in the Technology and any related documentation, including, without limitation, any application software, development tools, source codes, object codes, HTML, writings, drawings, designs, processes, techniques, formulas, data, technology, know-how, processes, code books, templates, algorithms, system design, architecture, logic, structure, sequence, organization, modifications, enhancements, derivative works, symbols, patents, copyrights, trademarks, brands, discoveries, ideas, inventions, concepts, developments, trade secrets, works of authorship, materials, specifications, patent applications, and other creations, whether or not patentable, arising from or relating to the Services that are conceived, created or otherwise developed by Nativo (alone or with others), or result from or are suggested by any work performed by Nativo (alone or with others). Except as otherwise provided, the Agreement transfers no ownership, license or other rights of any kind with respect to the Technology to Publisher or any other party. Publisher agrees to cooperate with Nativo during and after the Term of the Agreement to apply for, perfect, obtain or enforce Nativo' ownership rights in the Technology, including applying for patent protection or copyright registration. The Technology and the Documentation shall have the Nativo and Nativo logos displayed as well as the following copyright notice prominently displayed: "© [year] Nativo, Inc. All rights reserved." Publisher may make one copy of the Technology for backup purposes only and may not remove, obscure or alter from the Technology or any documentation any copyright or other proprietary notices or labels indicating the confidential nature thereof or the proprietary rights of Nativo in the Technology and documentation.
Nativo is not responsible for the creation, editorial content, and all other aspects of any Nativo ad units, including any files, scripts, multimedia images, graphics, audio, video, text, data or other objects originating or transmitted from any advertiser to website owned or operated by Publisher and routed to, passed through and/or stored on or within or otherwise transmitted or routed using the Services provided by Nativo (collectively, the "Advertiser's Content").
Nativo shall be permitted to identify Publisher as a client, to use Publisher's name and its trademarks, service marks, logos, symbols and/or brand names ("Marks") in connection with proposals to prospective clients, to hyperlink from Nativo' website to Publisher's home page, to display Publisher's Marks on the Nativo website, and to otherwise refer to Publisher in print or electronic form for marketing or reference purposes. Nativo' use of the Marks shall be subject to Publisher's logo and trademark usage guidelines, as provided to Nativo and as may be updated from time to time. Except as permitted hereunder or by separate written agreement of the parties, nothing in the Agreement shall create in either party any rights in any trademark, trade name, service mark, insignia, symbol, identification and/or logotype of the other party. Publisher agrees to serve as a reference in Nativo' proposals for contact by prospective clients and analysts. Nativo may issue a press release announcing Publisher's engagement of Nativo which shall be subject to the approval of both parties, which approval shall not be unreasonably withheld or delayed.
Nativo hereby warrants to Publisher, and only Publisher, that all Services shall be performed in a professional and workmanlike manner in accordance with the Agreement, and that for a period of thirty (30) days after acceptance thereof, the Technology will be free from material errors and other defects in design, workmanship and materials, and will perform substantially as contemplated in the Agreement.
THE PARTIES ACKNOWLEDGE THAT THIS IS AN AGREEMENT FOR SERVICES AND NOT FOR THE SUPPLY OF GOODS. EXCEPT AS PROVIDED IN SECTION 8.1, NATIVO MAKES NO OTHER WARRANTIES OR REPRESENTATIONS AS TO THE SERVICES RENDERED, AND HEREBY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
Nativo represents and warrants to Publisher that: (a) Nativo has the full power and authority to enter into the Agreement and to perform its obligations hereunder, without the need for any consents or approvals not yet obtained; (b) Nativo' execution of and performance under the Agreement shall not breach any oral or written agreement with any third party or any obligation owed by Nativo to any third party to keep any information or materials in confidence or in trust; and (c) the Services and any deliverables hereunder do not and shall not infringe, misappropriate or violate any patent, copyright, trademark, trade secret, publicity, privacy or other rights of any third party.
Publisher represents and warrants to Nativo that: (a) Publisher has the full power and authority to enter into the Agreement and to perform its obligations hereunder, without the need for any consents or approvals not yet obtained; (b) Publisher's execution of and performance under the Agreement shall not breach any oral or written agreement with any third party or any obligation owed by Publisher to any third party to keep any information or materials in confidence or in trust; (c) the information provided by Publisher is true, correct and complete in all material respects; (d) Publisher is the owner of the Website or is legally authorized to act on behalf of the owner of the Website; and (e) Publisher has complied with and will continue to comply with all applicable laws, regulations and ordinances in the operation of the Website.
Nativo shall indemnify, defend and hold harmless Publisher and its officers, directors, employees, agents, affiliates, successors and assigns from and against any and all claims, losses, liabilities, damages, settlements, expenses and costs (including, without limitation, attorney's fees and court costs) which arise out of or relate to (a) any material breach of the Agreement by Nativo; or (b) any third party claim or threat thereof that the Services or the Technology infringe, misappropriate or violate any patent, copyright, trademark, trade secret or other rights of any third party. Nativo' indemnity obligations are conditioned upon Publisher giving written notice of the claim promptly to Nativo; giving Nativo sole control of the defense and settlement of the claim; providing to Nativo all available information and assistance; and not having compromised or settled such claim.
Publisher shall indemnify, defend and hold harmless Nativo and its officers, directors, employees, agents, affiliates, successors and assigns from and against any and all claims, losses, liabilities, damages, settlements, expenses and costs (including, without limitation, attorney's fees and court costs) which arise out of or relate to any material breach of the Agreement by Publisher. Publisher's indemnity obligations are conditioned upon Nativo giving written notice of the claim promptly to Publisher; giving Publisher sole control of the defense and settlement of the claim; providing to Publisher all available information and assistance; and not having compromised or settled such claim.
If any Services or the Technology are determined to infringe, or in Nativo' opinion are likely to be determined to infringe, Nativo may elect to: (a) obtain for Publisher the right to use the Services or the Technology; (b) replace or modify the Services or the Technology so that they become non-infringing; or (c) remove the Services or the Technology and refund Publisher's payments made under the Agreement. Nativo has no obligation under the Agreement for any claim which results from: (a) use of the Services or the Technology in combination with any equipment, software or data not provided by Nativo, provided such infringement claim would have been avoided had the Services or the Technology not been used in combination with such equipment, software or data; (b) Nativo' compliance with designs or specifications of Publisher; (c) modification of the Services or the Technology other than by Nativo; or (d) use of an allegedly infringing version of the Services or the Technology, if the alleged infringement could be avoided by the use of a different version made available to Publisher. This Section states the entire liability of Nativo and exclusive remedies of Publisher for claims of infringement by Nativo.
To the fullest extent permitted by applicable law: (a) neither party shall be liable under any legal theory for any indirect, punitive, special, incidental or consequential damage in connection with or arising out of the Agreement (including, without limitation, loss of business, revenue, profits, use, data, or other economic advantage), however it arises, whether for breach or in tort, even if such party has been previously advised of the possibility of such damage; (b) Nativo' aggregate liability arising out of or relating to the Agreement (regardless of the form of action giving rise to such liability, whether in contract, tort or otherwise) shall not exceed the fees payable by Publisher which forms the basis for such cause of action but not to exceed the aggregate fees received for Services rendered for the three-month period immediately preceding the claim; and (c) neither party may institute a legal proceeding alleging such cause of action which accrued more than one (1) year prior to the commencement of such proceeding. Each party acknowledges that the other party has entered into this Agreement relying on the limitations of liability stated herein and that those limitations are an essential basis of the bargain between the parties.
The Agreement shall commence on the Effective Date indicated in the Agreement and continue until the earlier of (a) two (2) years or the end of the term, if any, set forth in the Agreement, or (b) termination by either party in accordance with this Section (the "Initial Term"). Upon the expiration of the Initial Term, the Agreement will automatically renew for one or more additional terms of one (1) year (each a "Renewal Term") unless and until either party notifies the other party of its intent to terminate at least thirty (30) days prior to the expiration of the Initial Term or a Renewal Term. Either party may terminate this agreement for any reason upon thirty (30) days written notice to the other party.
If either party materially defaults in any of its obligations under the Agreement, the non-defaulting party, at its option, shall have the right to terminate the Agreement by written notice unless the defaulting party remedies the default within thirty (30) calendar days after receipt of written notice of such default. Either party may terminate the Agreement upon: (a) a material breach by the other party after 30 days' written notice and a reasonable period (not to exceed 30 days) to cure such breach; (b) non-payment by the other party of any amount otherwise due after 10 days' written notice of non-payment; (c) the other party filing a voluntary petition in bankruptcy or other voluntary proceeding relating to its insolvency, receivership, liquidation or an arrangement for the benefit of its creditors; (d) the other party becomes subject to an involuntary proceeding of a similar nature that is not dismissed within 60 days of filing, or (e) the inability of the other party to generally pay its debts as they become due.
Upon the effective date of any termination of the Agreement, (a) Nativo shall immediately cease performing any Services under the Agreement, (b) Nativo shall promptly return to Publisher all of Publisher's Confidential Information, and (c) Publisher shall promptly cease using and shall return to Nativo the Services, including without limitation, the Technology, the Documentation and Nativo' Confidential Information. Unless the Agreement has been terminated due to a material breach by Nativo, if any fees or other compensation are provided in the Agreement or Application Form, then Publisher agrees to pay Nativo any compensation due for Services actually rendered, or otherwise due in accordance with Section 2.1. Except for Nativo' obligation to perform the Services, all other provisions shall survive the expiration or termination of the Agreement. Termination of the Agreement by a party shall be without prejudice to any other right or remedy of such party under the Agreement or applicable law.
Nativo' relationships with its employees, agents, suppliers, clients, customers and vendors are valuable business assets of Nativo. Accordingly, Publisher agrees that, during the Term of the Agreement and for two (2) years thereafter, Publisher (for itself, its affiliates or for any third party) shall not divert or attempt to divert any Nativo employee, whether directly or indirectly, through solicitation or otherwise.
The parties acknowledge that certain equipment, software and technical data which may be provided hereunder may be subject to export and re-export controls under the U.S. Export Administration Regulations and/or similar regulations of the United States or any other country. No party shall export or re-export any such equipment, software, technical data or any direct product thereof in violation of any such laws. Publisher is responsible for complying with all laws and regulations, including but not limited to import and customs laws and regulations. Nativo shall provide reasonable assistance to Publisher and its affiliates to facilitate such compliance.
The Agreement (together with these Standard Terms and Conditions, the Application Form and Nativo™ Advertising Services Policies) is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior or contemporaneous representations, discussions, proposals, negotiations, conditions, communications and agreements, whether written or oral, between the parties relating to the subject matter hereof. No modification of or amendment to the Agreement shall be effective unless it is in writing signed by both parties.
The Agreement may be executed (including, without limitation, by facsimile signature) in one or more counterparts, with the same effect as if the parties had signed the same document. Each counterpart so executed shall be deemed to be an original, and all such counterparts shall be construed together and shall constitute one Agreement.
If any provisions of the Agreement shall for any reason be held to be invalid, illegal or unenforceable by a court, arbitration panel or other tribunal of competent jurisdiction, then (a) the validity, legality and enforceability of such provision as applied to any other particular facts or circumstances, and the other provisions of the Agreement, shall not in any way be affected or impaired thereby, and (b) such provision shall be enforced to the maximum extent possible so as to effect the intent of the parties. If any provision of the Agreement shall for any reason be held to be excessively broad as to duration, geographical scope, activity or subject, it shall be construed by limiting and reducing it, so as to be enforceable to the extent necessary to comply with applicable law.
The waiver by either party of a breach or default under any provision of the Agreement shall not be effective unless in writing and shall not be construed as a waiver of any subsequent breach of or default under the same or any other provision of the Agreement, nor shall any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver or any right or remedy.
The Agreement has been negotiated by the parties and shall be interpreted fairly in accordance with its terms and without any construction in favor of or against either party.
The captions and section and paragraph headings used in the Agreement are inserted for convenience only and shall not affect the meaning or interpretation of the Agreement.
Any notice, request, demand or other communication required or permitted hereunder shall be in writing, shall reference the Agreement and shall be deemed to be properly given: (a) when delivered personally; (b) when sent by facsimile, with written confirmation of receipt by the sending facsimile machine; (c) five (5) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (d) two (2) business days after deposit with a commercial over-night courier, with written confirmation or receipt. All notice shall be sent to the address set forth on the signature page of the Agreement and to the notice of the person executing the Agreement (or to such other address or person as may be designated by a party by giving written notice to the other party pursuant to this Section).
Publisher may not sell, assign, or transfer any rights under the Agreement without the prior written consent of Nativo which will not be unreasonably withheld. Nativo may assign the Agreement at any time without the approval or consent of Publisher.
If any legal action, including, without limitation, an action for arbitration or injunctive relief, is brought relating to the Agreement or in breach hereof, the prevailing party in any final judgment or arbitration award shall be entitled to recover its reasonable expenses, including all court costs, arbitration fees and attorney's fees.
The Agreement shall be governed by and construed in accordance with the laws of the State of California without giving effect to any choice of law rule. Any legal action, suit or proceeding arising out of or relating to the Agreement shall be commenced exclusively in a federal court in the Central District of California or in state court in the County of Los Angeles, California, and each party hereto irrevocably submits to the exclusive jurisdiction and venue of such court in any action, suit or proceeding.