ADZOUK – PUBLISHER PARTNER AGREEMENT
This non-exclusive Publisher Partner Agreement (“Agreement”) is entered into and is effective as of the Effective Date by the Publisher (“Publisher Partner”) and AdZouk Holdings Ltd. (registered company number 126259C) with registered office at Clinch’s House, Lord Street, Douglas, Isle of Man IM99 1RZ, British Isles (“AdZouk”).
This Agreement is the complete agreement between the parties with respect to the subject matter contemplated by this Agreement, superseding and replacing any and all prior or contemporaneous agreements, communications, and understandings, both oral and written, regarding that subject matter.
SECTION 1. DEFINITIONS AND INTERPRETATION
1.1 Definitions. Unless otherwise specified, capitalised terms used in the Agreement, these Terms and their respective Exhibits will have the following meanings:
“Above the Fold” means Media Listings and content that is viewable without scrolling at a minimum of 800×600 screen resolution when a website page or new window loads.
“Agreement” means the agreement accepted below by the Publisher Partner and AdZouk which is subject to these Terms and Conditions.
“Bona Fide Internet User” means a real living individual person conducting legitimate internet searches and clicks, which to avoid doubt shall exclude without limitation clicking your own ads, robots, spiders, hitbots, scripts, software, hidden links, scraper and other mechanical, impression generating tools, automated clicks, artificial or fraudulent mechanisms and persons paid to conduct searches or clicks.
“Effective Date” shall mean the date when Publisher Partner electronically signs and dates this Agreement.
“Media Listing” means links, advertising code, advertising messages (not limited to text ads, display banner ads, video ads, rich media and interactive ads), or content or product recommendation modules and widgets that are generated or provided by AdZouk’s servers in response to a query from the Publisher Partner, for display on the Publisher Partner’s website, mobile site, app, or game.
“Intellectual Property Rights” means all patents, registered designs, unregistered design rights, copyrights, database rights, topography rights, trade marks, trade names, logos, trade secrets and knowhow, supplementary protection certificates, petty patents, utility models, applications for any of the above and the right to make applications and any and all other intellectual or industrial property rights of any description (and rights of a similar nature) anywhere in the world existing now or at any time in the future and whether registered or register-able or not.
“Internet User Traffic” shall include any person with whom contact is made through the internet.
“Publisher Partner” means a party who has entered into an agreement with AdZouk, which is subject to these terms to provide Bona Fide Internet Users with access to Media Listings.
“Person” shall include an individual of either gender.
“Publisher Partner Commission” means the amount of the commission earned by the Publisher Partner calculated by applying the Publisher Partner Commission Percentage to the CPC (Cost Per Click), CPM (Cost Per Mille), CPA (Cost Per Action), CPL (Cost Per Lead), CPO (Cost Per Order), CPE (Cost Per Engagement) prices or any other models now known or in the future in which advertising is purchased.
“Publisher Partner Commission Percentage” means fifty percent (50%) of the Publisher Partner Commission, less any contra revenues, transactional costs, including but not limited to credit card charges or taxes AdZouk is required to collect, audience measurement costs, bad debt and less any advertising impressions, clicks or conversions recorded that are deemed invalid by AdZouk.
“Revenue Click Through” denotes a Bona Fide Internet User actively clicking on a Media Listing on the Publisher Partner website (excluding any click through from an IP address considered by AdZouk, at its sole discretion, to be of unacceptably poor quality or of a fraudulent nature).
“AdZouk” means the online advertising network owned and operated by AdZouk Holdings Limited.
1.2 Unless the context requires otherwise references in these Terms and Conditions to the singular shall include the plural and vice versa; and reference to one gender shall include all other genders. Headings in these Terms and Conditions are for convenience only and do not affect interpretation.
1.3 References in these Terms and Conditions to a AdZouk website(s) shall be to a website(s) owned by and maintained by or on behalf of AdZouk.
1.4 References in these Terms and Conditions to the Publisher Partner website(s) shall be to a website(s) owned by and maintained by the Publisher Partner.
SECTION 2. PUBLISHER PARTNER OBLIGATIONS
2.1 In consideration for payment of the Publisher Partner Commission by AdZouk, the Publisher Partner agrees, for the duration of the Agreement:
2.1.1 to display AdZouk Media listings on the Publisher Partner’s website in the format received from AdZouk or in a way that has been approved in writing by AdZouk;
2.1.2 to use its reasonable endeavours to introduce Bona Fide Internet Users to websites linked to the Media Listings and to take all reasonable measures to ensure that internet users who are not Bona Fide Internet Users are not introduced to these websites. AdZouk’s determination as to whether an internet user is a Bona Fide Internet User shall be final;
2.1.3 to give AdZouk all reasonable assistance to enable AdZouk to facilitate the display of the Media Listings on the search results pages of the Publisher Partner’s website, mobile site, or app;
2.1.4 to comply with AdZouk’s reasonable requests to limit the number of requests sent to AdZouk in any given period;
2.1.5 to provide AdZouk with the internet protocol (IP) address of the Bona Fide Internet User in respect of each request sent to AdZouk;
2.1.6 to provide AdZouk with an anonymised but uniform Publisher Partner Identification with each request to facilitate poor traffic source detection in the instance where a Publisher Partner is providing traffic to AdZouk from their own Publisher Partner network and to stop any requests from any Publisher Partner which AdZouk may request from time to time;
2.1.7 to comply with any request from AdZouk to not allow Media Listings to be displayed on any websites, mobile sites, or apps specified by AdZouk;
2.1.8 to ensure that any username and password which is assigned to the Publisher Partner shall be kept secure and confidential and not disclosed to any third party;
2.1.9 not to place Media Listings provided by AdZouk in inappropriate places such as pop-ups, emails or software;
2.1.10 to display and abide by a privacy policy that discloses that third parties may be placing and reading cookies on your users’ browsers, or using web beacons to collect information as a result of ad serving on your website;
2.1.11 not to change user preferences, redirect users to unwanted websites, initiate downloads, include malware or contain pop-ups or pop-unders that interfere with site navigation;
2.1.12 not to alter the Media Listings provided by AdZouk, or manipulate the standard behavior, targeting or delivery of the Media Listings in any way that is not explicitly permitted by AdZouk;
2.1.13 not to place key words in the content or code of the web pages which are in the opinion of AdZouk excessive, repetitive or irrelevant; and
2.1.14 to provide AdZouk with monthly Google Analytics reports for Publisher Partner’s website(s).
2.1.15 to place at least one AdZouk Media Listing in an Above the Fold position and Publisher Partner agrees not to place more than four (4) ad units, whether AdZouk Media Listings or not, on any page at any time.
Publisher Partners are required to adhere to all of the above policies. If a Publisher Partner fails to comply with these policies, AdZouk reserves the right to disable ad serving to your site and/or disable your account at any time. If your account is disabled, you will no longer be eligible for further Media Listings from AdZouk.
SECTION 3. ADZOUK’S OBLIGATIONS
Subject to the Publisher Partner complying with its obligations under clause 2 AdZouk shall:
3.1 supply the Publisher Partner with the necessary links and/or code for inclusion on the Publisher Partner’s website to allow the display of Media Listings; and
3.2 give the Publisher Partner reasonable assistance to facilitate the display of the Media Listings on the Publisher Partner website.
SECTION 4. PAYMENTS AND REPORTING
4.1 Providing the Publisher Partner has complied with its obligations under this Agreement, AdZouk shall provide a monthly revenue report on or around the 15th of each month and upon the receipt of an invoice pay the Publisher Partner Commission via electronic funds transfer within 30 days following the end of each month (the “Billing Period”) to the Publisher Partner’s specified bank account.
4.2 AdZouk shall provide the Publisher Partner with a username and password to access the online reports which will include a breakdown of the Publisher Partner Commission.
4.3 AdZouk’s determination of the Publisher Partner Commission payable during any period shall be final except in the event of manifest error. AdZouk’s determination of what proportion of the Revenue Click Throughs originate from sources or mechanisms which are not Bona Fide Internet Users and whether any subsequent Publisher Partner Commission is due shall be solely at AdZouk’s discretion and shall be final.
4.4 Where AdZouk becomes aware that it has paid Publisher Partner Commission in respect of internet user traffic which is deemed by AdZouk as fraudulent, disallowed, invalid, or not from Bona Fide Internet Users, it shall be entitled to recoup the Publisher Partner Commission from Publisher Partner in full, immediately, or deduct the relevant amount of such Publisher Partner Commission from the next payment of Publisher Partner Commission due.
4.5 AdZouk will make payments when the Publisher Partner Commission balance reaches $250 (two hundred and fifty United States dollars) or more (the “Minimum Payment”) during any given Billing Period, or until termination or expiration of this Agreement. Publisher Partner Commissions with a balance less that $250 (two hundred and fifty United States dollars) during any given Billing Period will be carried over to the next Billing Period, or paid when the Minimum Payment has been reached.
4.6 This Agreement is a non-exclusive agreement and AdZouk makes no guarantees relating to Publisher Partner Commissions.
SECTION 5. INTELLECTUAL PROPERTY RIGHTS
5.1 During the term of the Agreement and subject to the terms set out herein, each party hereby grants to the other a nonexclusive, non-transferable license to use, display and reproduce its logo, trademarks and service marks on its websites and promotional materials solely for the purposes of the display of the Media Listings by the Publisher Partner on its website as set out in this Agreement, and for promoting and advertising the Publisher Partner as a AdZouk Publisher Partner.
5.2 The Publisher Partner acknowledges and agrees that, as between AdZouk and the Publisher Partner, AdZouk shall retain ownership of all Intellectual Property Rights and other right, title and interest to and in all the content and materials of the Media Listings and its websites directories, database, algorithm, indexing and related technology.
5.3 The Publisher Partner agrees that it will not take any action that would undermine, conflict with, or be contrary to the Intellectual Property Rights and interest of AdZouk or other AdZouk Publisher Partners or AdZouk’s other commercial Publisher Partners and resellers, including, without limitation, that:
(i) it will not make any use of, or attempt to register, any logo, trademark, service mark or trade name substantially similar to any logo, trademark, service mark or trade name of AdZouk or other AdZouk Publisher Partners or AdZouk’s other commercial Publisher Partners and resellers; and
(ii) it will not sell, resell, rent, licence, sub-licence, transfer, assign or redistribute the Media Listings except as expressly permitted in this Agreement, and in particular in accordance with clause 3.1. The Publisher Partner shall immediately inform AdZouk of any action taken by any third party (so far as the Publisher Partner is aware) that would undermine, conflict with, or be contrary to the Intellectual Property Rights and interests of AdZouk or other AdZouk Publisher Partners or AdZouk’s, other commercial Publisher Partners and resellers, and assist AdZouk as reasonably required in taking action against the third party concerned (including without limitation being joined in any legal action deemed necessary by AdZouk to protect its rights or those of other AdZouk Publisher Partners or AdZouk’s other commercial Publisher Partners and resellers).
SECTION 6. PUBLICITY AND MARKETING
AdZouk reserves the right to prepare and distribute announcements or promotional material in connection with this Agreement or the marketing of the related service. To avoid doubt, nothing in this clause shall require AdZouk to obtain any approval from the Publisher Partner of AdZouk’s publicity and marketing activities relating to other AdZouk Publisher Partners or AdZouk’s other commercial Publisher Partners and resellers.
SECTION 7. PUBLISHER PARTNER WARRANTIES
The Publisher Partner hereby represents, warrants and undertakes to AdZouk as follows:
7.1 it has, and will retain throughout the term of the Agreement, all right, title and authority to enter into this Agreement, to grant to AdZouk the rights and licenses granted in this Agreement and to perform all of its obligations under this Agreement.
7.2 it has complied and will comply with all relevant statutory provisions in relation to its obligations hereunder including, without limitation, any and all applicable data protection legislation and regulations and that it has obtained and will obtain any and all necessary rights, approvals and consents (including without limitation any necessary consents from individuals in relation to the processing of their personal data) to allow it to perform its obligations hereunder.
7.3 The Publisher Partner’s website, where the Media Listings are displayed, does not contain any offensive, slanderous or libelous content or infringe any copyright, trademark or intellectual property right or violate the privacy of any individual or breach advertising standards or violate any Laws in any country or jurisdiction where the Publisher Partner’s website is accessible or contain any material which is disparaging or abusive or any incorrect information relating to AdZouk or any of its advertisers or which may in the opinion of AdZouk or any of its advertisers or any obligations that AdZouk may have.
SECTION 8. ADZOUK WARRANTY
8.1 AdZouk hereby warrants that it has and will retain throughout the term of this Agreement all right title and authority to enter into this Agreement, to grant to the Publisher Partner the rights and licences granted in this Agreement and to perform all its obligations under this Agreement.
8.2 AdZouk hereby warrants that no Media Listings to be displayed on Publisher Partner’s website, mobile site, or app shall contain any offensive, obscene, slanderous or libelous content or infringe any copyright, trademark or intellectual property right or violate the privacy of any individual or breach advertising standards or violate any Laws in any country or jurisdiction where the Publisher Partner’s website, mobile site, or app is accessible or contains any material which is disparaging or abusive or any incorrect information relating to the Publisher Partner or the Publisher Partner’s website, mobile site, or app.
8.3 AdZouk further warrants that no Media Listings to be displayed on Publisher Partner’s website, mobile site, or app shall contain any hazardous code, any type of spider, malware, virus, worm, Trojan-horse, or any other codes or instructions that may distort, delete, damage, emulate or disassemble the Publisher Partner’s website, mobile site, or app.
SECTION 9. EXCLUSIVITY
AdZouk and Publisher Partner understand that this Agreement is entered into on a non-exclusive, worldwide basis.
SECTION 10. INDEMNITY
The Publisher Partner shall indemnify, hold harmless and defend at its own expense, AdZouk from and against any liability, claim, action, proceeding or expense arising out of or in connection with:
(i) any breach of the Publisher Partner Warranties or otherwise in respect of any content or other aspect of the Publisher Partner’s websites where the Media Listings are displayed, other than the Media Listings presented by AdZouk, (including but not limited to website content, Intellectual Property Rights associated with such content and violations of laws relating to obscenities and privacy); and
(ii) Any other material breach of or failure to perform its duties or obligations under the terms of this Agreement.
SECTION 11. EXCLUSION AND LIMITATION
11.1 The Publisher Partner hereby confirms that it is not entering into this Agreement in reliance on any warranty or representation given by AdZouk, except as expressly set out herein.
11.2 The Publisher Partner acknowledges that AdZouk makes no warranties of any kind for interruption in service for the AdZouk websites, Context Stream and AdZouk search facilities for the Media Listings and except as expressly set out in these Terms and Conditions, all warranties representations, and conditions express or implied, statutory or otherwise are hereby expressly excluded by AdZouk to the fullest extent permitted by law.
11.3 Nothing in clause 10.2 shall exclude liability for fraudulent misrepresentation.
11.4 The Publisher Partner’s entitlement to receive Publisher Partner Commission in respect of any particular month is conditional upon the Publisher Partner rendering a correct and valid invoice to AdZouk within six months of the end of that particular month.
11.5 AdZouk shall not be liable for, to the extent that they are beyond the reasonable control of AdZouk, acts or omissions of telecommunications operators or internet service providers or as a result of internet congestions.
SECTION 12. ECONOMIC LOSS
AdZouk shall not in any event be liable to the Publisher Partner or any third party, whether in contract, tort or otherwise, and irrespective of cause for:
12.1 any loss of profit, business, goodwill, contracts, revenues or anticipated savings suffered by the Publisher Partner; or
12.2 any special, indirect or consequential loss of any nature whatsoever suffered by the Publisher Partner, or a third party whether resulting from the use of AdZouk services under or pursuant to this Agreement including non-delivery, interruption in service, or failure of the internet infrastructure that the AdZouk service relies upon, however that interruption or failure is caused, or in respect of any other liability arising on the part of AdZouk to the Publisher Partner and/or any third party.
SECTION 13. LIMITATION OF LIABILITY
The maximum amount of AdZouk’s liability to the Publisher Partner under this Agreement shall not in any event exceed the amount of the Publisher Partner Commission earned by the Publisher Partner during the previous period of twelve months.
SECTION 14. TERM AND TERMINATION
14.1 The Agreement shall commence on the Effective Date and shall continue unless terminated by either party or unless the Publisher Partner does not send any requests for Media Listings to AdZouk for a period of at least 90 days in which case the Agreement will lapse.
14.2 The Agreement can be terminated by the Publisher Partner at any time with 90 days notice to AdZouk in writing.
14.3 AdZouk may terminate the Agreement with immediate effect by notice in writing to the Publisher Partner if it considers that:
(i) The Publisher Partner is in breach of any warranties by the Publisher Partner under this Agreement; or
(ii) In the event that the Publisher Partner introduces internet users who are not Bona Fide Internet Users in breach of its obligations under clause 2.1.2 of this Agreement; or
(iii) In the event of any other breach of this Agreement which breach has been notified by AdZouk to the Publisher Partner and has not been remedied within 14 days of such notification; or (v) in AdZouk’s sole discretion, it believes that the Publisher Partner is fraudulently using means to generate Revenue Click Throughs with the intent of inflating Publisher Partner Commission.
14.4 AdZouk may terminate the Agreement by giving the Publisher Partner notice of no less than 30 days, such notice to be given in writing.
14.5. Either party shall have the right to terminate the Agreement by notice in writing to the other with immediate effect in the event that the other becomes insolvent or bankrupt or makes an arrangement with creditors or in the case of a company goes into liquidation other than for the purpose of reconstruction or amalgamation.
14.6 Without prejudice to any rights, obligations and liabilities outstanding at the date of termination of the Agreement, upon such termination the rights and licences granted under the Agreement shall be deemed to have been terminated and the parties shall take all reasonable measures to ensure that the content and the materials of the other party are removed from their own content and materials and shall respond promptly to any reasonable requests from the other in this regard.
14.7 Whilst termination of this Agreement will not affect accrued rights and liabilities of either party, neither party shall have any additional right to compensation as a result of termination of the Agreement.
14.8 Without prejudice to any other rights and remedies that AdZouk may have for breach of the Agreement by the Publisher Partner, AdZouk shall have the right, without notice or liability to the Publisher Partner or any third party, to withhold the Media Listings until such time as the breach is remedied.
SECTION 15. GENERAL
15.1 Neither this Agreement nor any right or interest hereunder shall be assignable by either party without the other party’s prior written consent (not to be unreasonably withheld or delayed).
15.2 The waiver or failure of either party to exercise any right provided for in this Agreement shall not be deemed a waiver of that or any other right in this Agreement.
15.3 The Agreement shall be binding upon, and inure to the benefit of the parties and their permitted successors and assignees.
15.4 These Terms and Conditions may be amended by AdZouk from time to time by posting a copy of the new terms and conditions on the AdZouk website. The new terms and conditions will be available on the AdZouk website for at least 30 days before they are implemented.
15.5 Notices to the Publisher Partner sent pursuant to the Agreement may be in writing or may be sent electronically by email to the Publisher Partner at the email address registered in the contact details page of the Publisher Partner login area on the AdZouk website. Notices to AdZouk pursuant to the Agreement may be in writing or sent electronically by email to: publishers@adzouk.com
Any notice in writing may be delivered by hand or sent by post to the recipient at its address shown on the Agreement or in the case of a company in the UK to its registered office. Notices delivered by hand shall be deemed to be received on the day of delivery and those posted shall be deemed received on the second working day thereafter.
15.6 This Agreement shall be governed by and construed in accordance with English Law and the parties submit to the exclusive jurisdiction of the English courts.
15.7 This Agreement sets out the entire agreement between the parties in relation to the subject matter hereof and the parties acknowledge that in entering into this agreement they have not relied upon any representations other than those reduced to writing in this Agreement. The provisions of this clause shall not apply in the case of any fraudulent misrepresentation.
15.8 Neither party shall be liable for any breach of this Agreement due to any case beyond its reasonable control (save in respect of any obligation for the payment of monies) including but not limited to Acts of God, inclement weather, flood lightening or fire, industrial action, act or omission of government, or other competent authority, riot, war or act or omission of any other party for whom that party is not responsible.
15.9 Any term or provision of this Agreement held to be illegal or unenforceable shall, if possible, be interpreted so as to be construed as valid, but in any event the validity or enforceability of the remainder hereof shall not be affected.
15.10 Without prejudice to any other right which any party who is not a party to this Agreement may have, nothing in this Agreement shall confer on any such third party any right to enforce any term of this Agreement under the Contracts (Rights of Third parties) Act 1999.
15.11 This Agreement may be executed in any number of counterparts (each of which taken together shall be deemed to constitute one and the same agreement and each of which individually shall be deemed to be an original) with the same effect as if the signatures on each counterpart were the same original document.
15.12 Nothing in this Agreement nor the rights of or performance of the parties’ respective obligations hereunder shall constitute either party as the agent or legal Publisher Partner of the other.
15.13 Except as expressly provided in this Agreement neither party shall be entitled to bind or contract on behalf of the other party in any manner whatsoever.
SECTION 16. PARTICIPATION
Participation in the AdZouk is subject to AdZouk’s prior approval and Publisher Partner’s continued compliance with the policies detailed within this Agreement. AdZouk reserves the right to refuse participation to any applicant at any time in its sole discretion. By enrolling in the AdZouk, Publisher Partner represents that he or she is at least 18 (eighteen) years of age.
I understand and accept the terms and conditions set out within this Publisher Partner Agreement.
I agree I will not place ads on sites that include incentives to click on ads.
I agree I will not click on the ads I’m serving through the AdZouk.
I will not place ads on sites that include or link to pornographic, violent, hacking/cracking, gambling, illegal and prescription drugs, alcohol, weapons or ammunition, replica or imitation goods content.
