PUSHLY PUBLISHER AGREEMENT
This Web Push Notification (the “Agreement”) is entered into and effective as of the submission of the accompanying electronic form. The Agreement is between Ad-Ventures 2, Inc. (d/b/a Pushly), a Delaware corporation, whose principal business address is 300 E 39th Street, Suite 4E, Kansas City, MO 64111 (“Pushly”), and the Publisher or Publishing properties (“Publisher”) identified in the accompanying electronic form.
Capitalized words used in this Agreement but not otherwise defined at first use shall have the meanings ascribed to them in this Section 1.
- “Active Subscriber” is a visitor to a Publisher Publisher Property who opted-in and continues to be eligible to receive notifications from a Publisher Property.
- “Confidential Information” means any information disclosed by a disclosing party, which is designated as “Confidential,” “Proprietary,” or some similar designation, or which under the circumstances surrounding disclosure ought to be treated as confidential. Confidential Information does not include information which (i) is or becomes generally available or part of the public domain through no fault of the receiving party; (ii) was already known by or available to the receiving party prior to the disclosure by the disclosing party; (iii) is subsequently disclosed to the receiving party by a third party who is not under any obligation of confidentiality to the disclosing party; or (iv) as can be shown by written documentation, has already been or is hereafter independently acquired or developed by the receiving party without use of or reference to the Confidential Information of the disclosing party.
- “Personally Identifiable Information” means any data or other information that can be used to identify, contact, or locate a natural person including, but not limited to, name, address, telephone number, email address, or social security number.
- “Publisher Material” means (i) Publisher-provided content or links, or (ii) a Publisher-provided advertisement that promotes an advertiser brand, product or service.
- “Publisher Program” means the Pushly publisher program offered by Pushly whereby Pushly provides Push Notification Technology to publishers.
- “Publisher Property” or “Publisher Properties” means the website(s) or other properties or technology (such as, but not limited to, publisher or third party software that enables message notifications and advertisements to be displayed on a user’s computer or mobile device) upon which Publisher uses the Push Notification Technology.
- “Push Notification Technology” means the proprietary software developed by Pushly that enables message notifications to be displayed on a user’s computer or mobile device.
- “Pushly Marks” means the Pushly name, the Pushly logo, and Pushly’s product and service names.
Publisher Program Participation.
- Subject to the terms and conditions of this Agreement and Pushly’s prior written approval, Publisher may use the Push Notification Technology and display Publisher Material therein.
- Each Publisher Property is subject to review and approval or rejection by Pushly, in its sole discretion, at any time. Publisher shall implement the Push Notification Technology without modification on the Publisher Properties, in accordance with any placement requirements and reasonable technical specifications provided by Pushly. At Pushly’s request, Publisher shall immediately cease the use of the Push Notification Technology on certain or all of the Publisher Properties. Publisher is solely responsible for the Publisher Properties including, without limitation, all content, links and materials thereon.
- Pushly reserves the right to improve, modify, suspend, or discontinue, temporarily or permanently, in whole or in part, the Publisher Program or any Pushly data, information, content, software, technology, or features appearing on and/or offered through the Publisher Program at any time at its sole discretion.
- Publisher grants Pushly the right to access, obtain, index and cache non-Personally Identifiable Information data from a Publisher Property solely for purposes of targeting or otherwise improving performance of the Push Notification Technology on that Publisher Property, and for no other use.
- If a username and/or password is required or provided to access the Publisher Program, Publisher shall (i) take commercially reasonable steps to safeguard its username and password, and (ii) be solely responsible for any and all unauthorized use of such. Publisher shall notify Pushly immediately if Publisher becomes aware of any unauthorized use of any username or password or any other known or suspected security breach. Pushly expressly disclaims liability for any changes or modifications made to a Publisher account resulting from Publisher’s failure to protect its account access credentials.
- Publisher shall not enter into any agreement or other arrangement with any party other than Pushly relating to the provision of services that are the same as or similar to the Publisher Program or other services provided by Pushly under this Agreement.
- Subject to the terms and conditions of this Agreement, Publisher has the right to determine the Publisher Material that is displayed on users’ computers or mobile devices through the Push Notification Technology. Notwithstanding the foregoing, with respect to Publisher Material that is a Publisher-provided advertisement that promotes an advertiser brand, product, or service through the Push Notification Technology and that directs a user to a destination other than the Publisher Property to which the user subscribed to receive notifications from Publisher through the Push Notification Technology, Pushly reserves the right to limit the number of Publisher Material that may be displayed through the Push Notification Technology, and Publisher (i) agrees to comply with any such limitation, and (ii) understands and agrees that Pushly will not be liable or responsible for any revenue loss or other liability to Publisher resulting from such.
- Pushly shall use commercially reasonable efforts to ensure that the Push Notification Technology is fully available to Publisher 99.7% of the time, excluding any regularly scheduled or emergency maintenance, measured on a calendar quarterly basis. Pushly shall use commercially reasonable efforts to respond to any disruption to the Push Notification Technology within twelve (12) hours from the time in which it was detected, and shall use commercially reasonable efforts to correct the disruption within twenty-four (24) hours from the time in which it was detected. If there is any regularly scheduled or emergency maintenance that exceeds seventy-two (72) hours in a calendar month, then Publisher may terminate this Agreement immediately upon notice to Pushly.
- Publisher shall pay Pushly a calendar monthly usage fee for use of the Push Notification Technology based on the total number of Active Subscribers during each calendar month during the term of this Agreement (“Usage Fees”). If Publisher’s total Active Subscriber count is fewer than ten thousand (10,000) Active Subscribers within a calendar month during the term of this Agreement, Publisher agrees to pay a minimum usage fee of one hundred dollars ($100.00) for such calendar month. If Publisher’s total Active Subscriber count exceeds ten thousand (10,000) Active Subscribers within a calendar month during the term of this Agreement, Publisher agrees to pay $0.01 per Active Subscriber for such calendar month.
- Pushly’s determination of the number of Active Subscribers shall be the only and definitive measure of Usage Fees owed by Publisher. Publisher shall pay the Usage Fees incurred within thirty (30) days after the date of receipt of invoice for such from Pushly. Usage Fee payments shall be made in U.S. Dollars. Charges are exclusive of taxes.
- Either party may terminate this Agreement at any time upon at least thirty (30) business days’ prior written notice to the other party. Additionally, this Agreement may be terminated by a party for cause immediately by written notice to the other party upon the occurrence of any of the following events: (i) the commencement of a petition, proceeding, or case seeking the other party’s bankruptcy, insolvency, liquidation, dissolution or winding-up, or readjustment of its debts, or seeking the appointment of a receiver, trustee or the like of itself or its assets, or otherwise seeking relief from its creditors and, in the case of an involuntary petition, proceeding or case, such petition, proceeding or case continues undismissed for, or an order approving or ordering any of the foregoing is entered and is not stayed within, sixty (60) calendar days; or (ii) if the other party breaches this Agreement and fails to cure the breach, if capable of cure, within five (5) business days of written notice describing the breach in reasonable detail.
- This Section 4(b) and Sections 1, 3 (relating to payments owed by Publisher), 5, 6, and 8 through 11 shall survive termination or expiration of this Agreement.
- Pushly owns and retains all rights, title, and interest in and to the Push Notification Technology. Except as expressly stated in this Agreement, Pushly does not grant any license, express or implied, to the Push Notification Technology or any other right, title, or interest to any intellectual property including, without limitation, any of Pushly’s trademarks or service marks. Pushly reserves all rights, title, and interest in and to its intellectual property. Publisher will not (i) copy, alter, modify, decompile, reverse engineer, disassemble, create derivative works of, or otherwise attempt to derive source code from the Push Notification Technology, or (ii) use the Publisher Program, the Push Notification Technology, or any other Pushly intellectual property, to create any competitive products or services.
- The Pushly Marks are the property of Pushly. Publisher shall not use the Pushly Marks for any purpose without the prior written approval of Pushly, and then only in accordance with instructions provided by Pushly.\
- Publisher owns and retains all rights, title, and interest in and to the Publisher Properties (except for the Push Notification Technology and any other Pushly intellectual property), and any data obtained from the Publisher Properties by Pushly. Except as expressly stated in this Agreement, Publisher does not grant any right, title, or interest to any intellectual property. Publisher reserves all rights, title, and interest in and to its intellectual property.
Each party agrees not to use or disclose any of the other party’s Confidential Information except (a) as necessary for the performance of a party’s rights and obligations under this Agreement, or (b) as required by government authority or pursuant to any applicable law, regulation, or judicial order. Publisher’s Confidential Information includes all data obtained by Pushly from Publisher. Pushly Confidential Information includes, without limitation, payments made to Publisher, reports and performance metrics provided by Pushly, and information, software, technology, documentation, and specifications relating to the Publisher Program. Publisher grants Pushly a limited, revocable, fully-paid, royalty-free, license to display Publisher’s logo in promotional material to identify Publisher as a customer of Pushly.
Representations and Warranties.
- Each party represents and warrants that (i) it has the full right, power, and authority to enter into and perform under this Agreement; (ii) neither the execution, delivery, nor performance of this Agreement will result in a violation or breach of any contract, agreement, order, judgment, decree, rule, regulation or law to which it is bound; and (iii) it shall comply with all applicable laws, rules and regulations in its performance of this Agreement including, without limitation, any relevant data protection or privacy laws or regulations governing U.S. export controls.
- Pushly further represents and warrants that the Push Notification Technology: (i) does not and will not violate any applicable law or regulation; and (ii) does not and will not infringe the valid U.S. patent, copyright, trademark, or trade secret of any third party.
- Pushly further represents and warrants that it will not store Internet Protocol addresses that it collects from any Active Subscribers of the Push Notification Technology, and will destroy such Internet Protocol address promptly upon assigning a subscriber identification number to the applicable user.
- Publisher shall defend, indemnify and hold Pushly and its respective directors, officers, employees, representatives, and agents, (each a “Pushly Indemnitee”) harmless from and against any judgment, loss, liability, cost, damage, or expense (including reasonable attorneys’ fees) asserted by a third party against a Pushly Indemnitee to the extent arising out of or relating to Publisher’s breach of this Agreement.
- Pushly shall defend, indemnify and hold Publisher, and its respective directors, officers, employees, representatives, and agents (each a “Publisher Indemnitee”) harmless from and against any judgment, loss, liability, cost, damage, or expense (including reasonable attorneys’ fees) asserted by a third party against a Publisher Indemnitee to the extent arising out of or relating to Pushly’s breach of this Agreement.
- Each party’s obligation to indemnify the other party hereunder will be conditioned upon the indemnified party promptly notifying the indemnifying party in writing of any such claim (however, failure of the indemnified party to so promptly notify the indemnifying party will not relieve the indemnifying party of its obligations hereunder, except to the extent that such failure to give notice materially prejudices the indemnifying party’s ability to defend such claim), promptly tendering the control of the defense and settlement of any such claim to the indemnifying party (at the indemnifying party’s expense and with the indemnifying party’s choice of counsel), and cooperating reasonably with the indemnifying party in defending or settling such claim including, but not limited to, providing any information or materials necessary for the indemnifying party to perform the foregoing. The indemnifying party will not enter into any settlement or compromise of any such claim, which settlement or compromise would result in any liability to the indemnified party without the indemnified party’s prior written consent, which will not be unreasonably withheld. The indemnified party will have the right to participate in the settlement or defense of any such claim at its own expense.
Disclaimer of Warranties.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE PUBLISHER PROGRAM AND MATERIALS PROVIDED THROUGH THE PUBLISHER PROGRAM AND ANY DATA OBTAINED FROM THE PUBLISHER PROPERTIES BY PUSHLY ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, EACH PARTY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT AND INCLUDING ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PUSHLY SPECIFICALLY DISCLAIMS ANY WARRANTY REGARDING (A) THE LIKELIHOOD OF SUCCESS OF PUBLISHER’S PARTICIPATION IN THE PUBLISHER PROGRAM, (B) THE AMOUNT OF ANY PAYMENT OR PROFITS TO BE MADE TO PUBLISHER UNDER THIS AGREEMENT, AND (C) THE ERROR-FREE, DISRUPTION-FREE OR INTERRUPTION-FREE NATURE OF THE PUBLISHER PROGRAM.
LIMITATION OF LIABILITY.
TO THE FULLEST EXTENT PERMITTED BY LAW AND EXCEPT FOR EITHER PARTY’S BREACH OF SECTION 5 OR 6 OF THIS AGREEMENT, (A) NEITHER PARTY SHALL BE LIABLE UNDER THIS AGREEMENT FOR ANY CLAIM FOR INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS) (EVEN IF SUCH DAMAGES ARE FORESEEABLE OR SUCH PARTY HAS BEEN ADVISED OR HAS CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES), AND (B) EACH PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT FOR ANY REASON WILL NOT EXCEED THREE TIMES (3X) THE PAYMENTS PAID AND PAYABLE BY PUBLISHER TO PUSHLY IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION AROSE. EACH PARTY ACKNOWLEDGES THAT THE OTHER PARTY HAS ENTERED INTO THIS AGREEMENT RELYING ON THE LIMITATIONS OF LIABILITIES STATED HEREIN AND THAT THOSE LIMITATIONS ARE THE ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
- Force Majeure. Neither party shall be liable in damages for any delay or default in performance of this Agreement if such delay or default is caused by unforeseen conditions beyond the reasonable control of the delaying or defaulting party, including acts of God, restrictions by a government authority, wars, revolutions, terrorism, strikes (other than any strike by the delaying or defaulting party’s employees), fires, floods, earthquakes, embargoes, or degradation of telephone or other communications services, including but not limited to, degradation of all or part of an Internet backbone.
- Relationship of the Parties. Pushly and Publisher are independent contractors and neither party is an agent, representative, partner or joint venture partner of the other.
- Entire Agreement. This Agreement sets forth the entire agreement between the parties with respect to the subject matter hereof, and supersedes any and all prior and contemporaneous agreements, communications, and understandings (whether written or oral) between the parties, with respect to their subject matter. No party has been induced to enter into this Agreement by virtue of, and is not relying upon, any representations or warranties not set forth in this Agreement, any correspondence or communication preceding the execution of this Agreement, or any prior course of dealing between the parties.
- Choice of Law and Venue. This Agreement shall be interpreted and enforced in all respects under the laws of the State of Missouri, as applicable to contracts to be performed entirely within the State of Missouri. Any litigation arising out of this Agreement will be brought solely and exclusively in the state or federal courts located in Kansas City, Missouri, and the parties agree that jurisdiction and venue properly lie in such courts and waive any claim that a proceeding in any such court has been brought in an inconvenient forum.
- Waiver. Failure by a party to enforce at any time or for any period of time any provisions of this Agreement shall not be construed as a waiver of such provisions, and shall in no way affect a party’s right to later enforce such provisions. No provision or part of this Agreement or remedy hereunder may be waived except by a writing signed by a duly authorized representative of the party making the waiver.
- Severability. If any one or more of the provisions of this Agreement shall for any reason be held to be invalid, illegal or unenforceable by a court of law, the remaining provisions of this Agreement shall be unimpaired, and the invalid, illegal or unenforceable provision shall be replaced if possible by a mutually acceptable provision, which being valid, legal and enforceable, comes closest to the intention of the parties underlying the invalid, illegal or unenforceable provision.
- Miscellaneous. This Agreement may only be modified or amended by an agreement executed by Pushly and Publisher. Publisher may not assign or delegate this Agreement, in whole or in part, without the prior written consent of Pushly, and any such attempt in violation hereof is void. Unless otherwise indicated, notice under this Agreement to Pushly shall be transmitted by registered mail or reputable overnight courier to its address listed above, and notice to Publisher shall be transmitted via email, registered mail, reputable overnight courier or via facsimile to the contact information provided by Publisher to Pushly. Either party may update its contact information through appropriate notice. This Agreement may be executed in one or more counterparts, each in the English language and each of which shall be deemed to be an original instrument, and all such counterparts shall together constitute the same agreement. An electronic signature, or reasonable indication of assent through electronic means, shall have the same force and effect as a handwritten signature.
- WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF THE PARTIES IN THE PERFORMANCE OR ENFORCEMENT HEREOF.