Terms and conditions for publishers (non-resident)
TERMS AND CONDITIONS FOR PUBLISHERS
Last modified: May 31, 2019
1. TERMS AND DEFINITIONS
Terms means this document available here constituting an integral part of the Offer.
Offer means the Company's proposal to enter into a services agreement between the Company and the Publisher on the terms set out in the Offer available here.
Agreement means the agreement under the conditions of the Offer concluded between the Parties at the time of the Publisher's acceptance of the Offer.
Company means My.com B.V, registered address: Barbara Strozzilaan 201, 1083 HN, Amsterdam, the Netherlands.
Publisher means an individual or legal entity having entered into the Agreement with the Company by accepting the Offer. Publisher is an owner, administrator and/or other authorized entity who legally owns the right to administer the Publisher Media and/or the right to place Advertising materials on such Publisher Media (on based of relevant agreements).
Parties means the Company and the Publisher.
myTarget System means the advertising management system, providing the aggregate of software and hardware used by the Publisher and designed, inter alia, to ensure the possibility to manage the Advertising materials placement. myTarget System shall ensure the accounting of the Parties' execution of mutual obligations under the Agreement and shall contain all information required for the Parties' cooperation, including the Statistics.
myTarget Code means a software code to be installed at the Publisher Media in order for the Publisher to display the Advertising materials.
Account means the Publisher's personal account in myTarget System being the means of provision of the information relating to the Parties' mutual obligations and enabling the Publisher to get access to the Statistics data in real time. The Account shall be accessed by the Publisher through inserting via the user interface at / a login and password independently determined by the Publisher when registering in myTarget System.
Advertising material means any type of advertising materials such as text box, textual and graphical or graphical banner, static (with unchanged image) or animated, containing advertising information and hyperlink, video material, provided by the Advertiser through myTarget System to be placed at the Publisher Media in accordance with the terms and conditions hereof.
Link means a special text and/or image, included into the Advertising material and aimed to redirect the Users having addressed thereto through Click to the Internet resource, whereof the address (URL) is specified by the Advertiser for such the Advertising material.
Display means placement/display of the Advertising materials at the certain Publisher Media.
Click means use of the link contained in the Advertising material.
User means any individual being a user of different devices (end-devices), including without limitation, mobile phones, tablet computers, pocket computers, laptops and other wireless devices.
Publisher Media means websites, mobile site and mobile applications owned and/or administrated by the Publisher legally (on based of relevant agreements concluded by the Publisher and included the right to administer the Publisher Media and/or the right to place Advertising materials on such Publisher Media) and available to the Users for view and/or cooperation through such end-devices of the Users.
Advertiser means the person concluded an agreement for the Advertising materials placement through myTarget System with the Company.
Statistics means the data on volume, parameters, the Publisher's Remuneration, as well as other data, formed by myTarget System with regard to the Advertising materials placement.
Services means the Publisher's services under the Agreement.
Reporting period – one (1) month.
Other terms, whereof the definitions are absent in this Section shall be interpreted in accordance with usual and customary business practices as well as in accordance with the laws of England and Wales in force.
2. TERMS AND CONDITIONS
2.1. The Publisher proceeds for rendering of the Services only upon performance of the following conditions:
2.1.1. The Publisher has registered in myTarget System;
2.1.2. The Publisher has submitted the registration form in the Account with it's true and valid details; the Company shall be entitled to request and the Publisher shall provide the Company with the documents confirming the Account details;
2.1.3. The Company has approved the Services rendering by the Publisher via myTarget System or by email.
2.2. The Publisher shall ensure the Advertising materials placement through installation of myTarget Code at the Publisher Media. When loading a certain Publisher Media when it is viewed by the User, myTarget Code shall make an automotive request to myTarget System which, after having processed such request according to its own algorithm, shall determine the Advertising material corresponding to the placement parameters for the Advertising material determined by the Advertiser and may be placed at the Publisher Media. Code of placement of the advertising blocks of other advertisement demonstration systems shall not interfere in myTarget Code operation, and shall not influence the demonstrated Advertising materials in any way.
2.2.1. Publisher Media shall meet the following requirements:
(a) Publisher Media works for russian-speaking audience;
(b) daily audience of Publisher Media is amount over 100 persons a day for Advertising materials which are supported of myTarget System;
(c) Publisher Media is located on the paid hosting; The mobile application is available at the official application stores.
2.3. Each Publisher Media is subject to approval by the Company. The Company may reject any Publisher Media for any reason in its reasonable sole discretion, and may also withdraw approval following acceptance if the Company reasonably determines any Publisher Media:
2.3.1. is no longer complying with the terms and conditions of the Agreement;
2.3.2. has substantially changed since approval or no longer meets the Company's standards;
2.3.3. contains Prohibited Content or associated with a Prohibited Activity (as defined below).
2.4. The Company shall provide the Publisher with the access to the Account in order to control the Services rendering.
2.5. The Company will deliver myTarget Code to the Publisher. The Publisher will not modify myTarget Code.
2.6. The Publisher undertakes to:
2.6.1. perform the Advertising materials placement in accordance with the provisions hereof;
2.6.2. install and maintain performance of the myTarget Code on the Publisher Media in accordance with the provisions hereof;
2.6.3. use commercially reasonable efforts to ensure that the Publisher Media do not contain any content that: (a) violates any applicable law, rule or regulation, (b) promotes violence, the use of firearms, or unlawful subject matter or activities (e.g. discrimination of protected classes, hate crimes, P2P sites, or copyright protection circumvention sites, etc.), (c) violates any intellectual property right or other proprietary or privacy right of any third party, or (d) is defamatory, libelous, deceptive, pornographic or sexually explicit (all such content described above collectively referred to as "Prohibited Content").
2.7. The Publisher shall not, and shall not authorize any third party to, generate impressions, clicks, or any other payable actions on the Advertising materials served via myTarget System through the following methods (collectively, the "Prohibited Activities'): (a) offering any incentives, (b) using automated means, including spiders, scripts, or other non-human agents, (c) auto-spawning of pages or hijacking of an end-user browser, (d) automatic Advertising material refreshes (unless instigated by an end-user page refresh or by ad unit settings), or (e) any other method designed to fraudulently, deceptively, or artificially inflate the number of impressions, clicks, or other payable actions, or other payable actions. The following actions shall also be deemed Prohibited Activities in the event that the Publisher Media is an application: (a) substantially overwriting the Advertising material on a third party website via such application, (b) any rearrangement of the content on a third party web page via such application.
The Publisher understands and agrees that no Remuneration for the Services will be payable to the extent generated as a result of any Prohibited Activity.
2.8. The Publisher reserves the right to suspend or cease any Advertising material placement if the Publisher determines that such action is appropriate to avoid or limit the Publisher's liability or to avoid or prevent the breach of the Agreement.
2.8.1. Publisher shall comply in the process of the Advertising materials placement the following requirements:
(a) Advertising materials of other advertisement demonstration systems shall differ from Advertising materials which are placed through myTarget System;
(b) the change of a page view mode on websites of Publisher Media for the priority demonstration of Advertising materials which are placed through myTarget System shall be prohibited.
2.9. The Company undertakes to:
2.9.1. provide the Publisher with the access to myTarget System through the Account;
2.9.2. ensure the availability and functioning of myTarget System;
2.9.3. pay for the Services in accordance with the provisions of the Agreement.
2.10. The Company reserves the right to suspend or cease delivery of the Advertising materials to any Publisher Media containing Prohibited Content or engaging in any suspicious activity including any Prohibited Activity.
3. REPRESENTATIONS AND WARRANTIES; DISCLAIMER
3.1. Mutual Representations and Warranties. Each Party represents and warrants to the other that: (a) such Party has the full corporate right, power and authority to enter into the Agreement and to perform the acts required of it hereunder, (b) the execution of the Agreement by such party, and the performance by such party of its obligations and duties hereunder, do not and will not violate any agreement to which such Party is bound, and (c) such Party will comply with all applicable laws, rules and regulations in performing its respective obligations and exercising its rights hereunder.
3.2.1 Additional Publisher Warranties. The Publisher further warrants that: (a) it has all rights, permissions and authority necessary to display the Advertising materials on the Publisher Media, and (b) it will not knowingly include, and will use commercially reasonable efforts to prevent the inclusion of, any Prohibited Content on any Publisher Media, (c) it provides the User with clear and conspicuous notice about all material functionality, (d) it obtains informed consent from the User prior to download, (e) it allows the User to maintain control over such User's computing environment.
3.2.2. Additional Company Warranties. The Company further warrants that it would require its Advertisers to ensure the Advertising materials to comply with applicable laws and regulations.
3.3. Disclaimer. MYTARGET SYSTEM AND ALL CONTENTS AVAILABLE OR ACCESIBLE THROUGH IT (INCLUDING BUT NOT LIMITED TO MYTARGET CODE AND THE ADVERTISING MATERIALS), ARE PROVIDED ON "AS IS" AND "AS AVAILABLE" BASIS. UNLESS AS EXPRESSLY SET FORTH IN THE AGREEMENT, THE COMPANY MAKES NO OTHER WARRANTY AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO MYTARGET SYSTEM AND ITS CONTENT, INCLUDING BUT NOT LIMITED TOTHE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE AND FITNESS FOR A PARTICULAR PURPOSE, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR PERFORMANCE. THE COMPANY MAKES NO WARRANTY OF ANY KIND THAT (A) MYTARGET SYSTEM WILL ALWAYS BE AVAILABLE, ACCESIBLE, UNINTERRUPTED, TIMELY, AND SECURE OR OPERATE WITHOUT ERROR OR THAT ANY SOFTWARE PROVIDED HEREUNDER WILL OPERATE WITHOUT ERROR; (B) THE SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; (C) ANY STORED DATA OR REPORTING WILL BE ACCURATE, RELIABLE OR FREE FROM LO; ANY CONTENT, INCLUDING THE ADVERTISING MATERIALS, TRANSMITTED THROUGH THE USE OF MYTARGET CODE IS DONE AT THE PUBLISHER'S OWN DISCRETION AND RISK AND THE PUBLISHER WILL BE SOLELY RESPONSIBLE THEREFORE.
3.4. The Publisher will be fully liable for the safety of its login and password for the access to the Account in myTarget System as well as for the losses which may arise due to unauthorized use of its password and/or access channel.
3.5. The Publisher undertakes to provide the Users with all necessary information about the installation of cookies files and using the Company's data obtained with the help of cookies files and guarantees that it will obtain the Users' consent on the use of cookies files and use by the Company of data obtained with their help.
The Publisher also guarantees that the placement or use of cookies files for the purposes specified herein is not contrary to the legislation governing its relationship with the Users, or that the Publisher had taken all necessary precautions required by the legislation, allowing the installation of cookies files and use of the data obtained with their help.
4. INDEMNIFICATION; LIMITATION OF LIABILITY
4.1. Publisher Obligation. The Publisher shall indemnify, defend and hold harmless, the Company from and against any claims, demands, suits or proceedings ("Claims") brought against the Company by a third party arising from: (a) any Prohibited Content appearing on the Publisher Media excluding user-generated content, (b) any Prohibited Activity engaged in or authorized by the Publisher, (c) a breach by the Publisher of any Publisher covenants, representations or warranties contained herein. The Publisher shall pay the Company any damages finally awarded against the Company and reasonable costs and expenses (including reasonable attorneys' fees).
4.2. Company Obligation. The Company shall indemnify, defend and hold harmless, the Publisher from and against any Claims brought against the Publisher by a third party arising from a breach by the Company representation or warranty contained herein. The Company shall pay the Publisher any damages finally awarded against the Publisher and reasonable costs and expenses (including reasonable attorneys' fees).
4.3. Indemnification procedure. The obligations of each party (the "Indemnitor") under the Agreement to defend, indemnify and hold harmless the other party (the "Indemnitee") shall be subject to the following: (a) the Indemnitee shall provide the Indemnitor with prompt notice of the claim giving rise to such obligation; provided, however, that any failure or delay in giving such notice shall only relieve the Indemnitor of its obligation to defend, indemnify and hold the Indemnitee harmless to the extent it reasonably demonstrates that its defense or settlement of the claim or suit was adversely affected thereby; (b) the Indemnitor shall have sole control of the defense and of all negotiations for settlement of such claim or suit; provided, however, that the Indemnitor shall not settle any claim unless such settlement completely and forever releases the Indemnitee from all liability with respect to such claim or unless the Indemnitee consents to such settlement in writing (which consent shall not be unreasonably withheld); and (c) the Indemnitee shall cooperate with the Indemnitor in the defense or settlement of any such claim or suit; provided, however, that the Indemnitee shall be reimbursed for all reasonable out-of-pocket expenses incurred in providing any cooperation requested by the Indemnitor. Subject to clause (b) above, the Indemnitee may participate in the defense of any claim or suit in which the Indemnitee is involved at its own expense.
4.4. EXCEPT FOR ANY ACTS OF FRAUD, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT, IN NO EVENT WILL: EITHER PARTY BE LIABLE TO THE OTHER FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, ANY INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES; EITHER PARTY'S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL IN NO EVENT EXCEED 10 (TEN) % OF THE AMOUNT OF REMUNERATION PAID BY THE COMPANY TO THE PUBLISHER UNDER THIS AGREEMENT. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. THIS SECTION WILL BE GIVEN FULL EFFECT EVEN IF ANY REMEDY SPECIFIED IN THIS AGREEMENT IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
5. CONFIDENTIALITY
Confidential Information of either Party shall mean any other information designated in writing, or identified orally at time of disclosure, by the disclosing party as "confidential" or "proprietary." Except as otherwise expressly permitted under these Terms, either Party will not disclose any Confidential Information to third parties. Either Party will take reasonable measures to protect the secrecy of, and to avoid disclosure and unauthorized use of, the Confidential Information, including but not limited to limiting the disclosure of such Confidential Information to its employees and independent contractors with a need to know to perform its obligations under these Terms and who have been advised of the confidential nature thereof, and have agreed not to disclose or use such Confidential Information except as permitted by these Terms. Either Party will immediately notify the other in the event of any unauthorized or suspected use or disclosure of the Confidential Information. Notwithstanding the foregoing, neither Party shall have obligations hereunder for any information which is already known to the receiving Party prior to disclosure by the disclosing Party; publicly available through no fault of either Party; lawfully and rightfully disclosed to the receiving Party by a third party under no confidentiality obligation to the disclosing Party; or is independently developed by the Party without reference to Confidential Information. Either Party may disclose Confidential Information if and to the extent it is required by any securities exchange or Governmental Authority to which any Party is subject. If receiving Party or any of its representatives is required by applicable law to disclose any Confidential Information, receiving Party shall, prior to such disclosure, notify the disclosing Party of such requirements so that the disclosing Party may seek, at its sole cost and expense, a protective order or other remedy, and receiving Party shall reasonably assist the disclosing Party therewith. If receiving Party remains legally compelled to make such disclosure, it shall (a) only disclose that portion of the Confidential Information that, in the opinion of its legal counsel, receiving Party is required to disclose, and (b) use commercially reasonable efforts to ensure that such Confidential Information is afforded confidential treatment. Statistics shall be the Confidential information.
6. MISCELLANEOUS
6.1. No Waiver. Failure or delay by the Company in exercising or enforcing any right or remedy it has under the Agreement or at law shall not operate as a waiver of that or any other right or remedy, and shall not preclude or restrict any further exercise or enforcement by the Company of that or any other right or remedy.
6.2. Relationship of the Parties. The Parties are independent contractors, and nothing contained in the Agreement shall be deemed or construed to create an agency, joint venture, partnership, fiduciary or other similar relationship between the parties. There are no intended third party beneficiaries under the Agreement.
6.3. Force Majeure. Neither party will be liable for failure or delay in performing its obligations due to causes beyond its reasonable control, including without limitation acts of God, terrorism, war, riots, acts of government, fire, flood, earthquake, electrical outages, failure of network connections, failure of telecommunications, failure of mobile service providers, or Internet service provider disruptions (including without limitation denial of service attacks).
6.4. Interpretations. Headings and captions are for convenience only and are not to be used in the interpretation of the Agreement.
6.5. The current version of the Terms is available here.
Previous versions: /partners/doc/terms-for-nonresidents-previous;/partners/help/terms_en
Last modified: May 31, 2019
1. TERMS AND DEFINITIONS
Terms means this document available here constituting an integral part of the Offer.
Offer means the Company's proposal to enter into a services agreement between the Company and the Publisher on the terms set out in the Offer available here.
Agreement means the agreement under the conditions of the Offer concluded between the Parties at the time of the Publisher's acceptance of the Offer.
Company means My.com B.V, registered address: Barbara Strozzilaan 201, 1083 HN, Amsterdam, the Netherlands.
Publisher means an individual or legal entity having entered into the Agreement with the Company by accepting the Offer. Publisher is an owner, administrator and/or other authorized entity who legally owns the right to administer the Publisher Media and/or the right to place Advertising materials on such Publisher Media (on based of relevant agreements).
Parties means the Company and the Publisher.
myTarget System means the advertising management system, providing the aggregate of software and hardware used by the Publisher and designed, inter alia, to ensure the possibility to manage the Advertising materials placement. myTarget System shall ensure the accounting of the Parties' execution of mutual obligations under the Agreement and shall contain all information required for the Parties' cooperation, including the Statistics.
myTarget Code means a software code to be installed at the Publisher Media in order for the Publisher to display the Advertising materials.
Account means the Publisher's personal account in myTarget System being the means of provision of the information relating to the Parties' mutual obligations and enabling the Publisher to get access to the Statistics data in real time. The Account shall be accessed by the Publisher through inserting via the user interface at / a login and password independently determined by the Publisher when registering in myTarget System.
Advertising material means any type of advertising materials such as text box, textual and graphical or graphical banner, static (with unchanged image) or animated, containing advertising information and hyperlink, video material, provided by the Advertiser through myTarget System to be placed at the Publisher Media in accordance with the terms and conditions hereof.
Link means a special text and/or image, included into the Advertising material and aimed to redirect the Users having addressed thereto through Click to the Internet resource, whereof the address (URL) is specified by the Advertiser for such the Advertising material.
Display means placement/display of the Advertising materials at the certain Publisher Media.
Click means use of the link contained in the Advertising material.
User means any individual being a user of different devices (end-devices), including without limitation, mobile phones, tablet computers, pocket computers, laptops and other wireless devices.
Publisher Media means websites, mobile site and mobile applications owned and/or administrated by the Publisher legally (on based of relevant agreements concluded by the Publisher and included the right to administer the Publisher Media and/or the right to place Advertising materials on such Publisher Media) and available to the Users for view and/or cooperation through such end-devices of the Users.
Advertiser means the person concluded an agreement for the Advertising materials placement through myTarget System with the Company.
Statistics means the data on volume, parameters, the Publisher's Remuneration, as well as other data, formed by myTarget System with regard to the Advertising materials placement.
Services means the Publisher's services under the Agreement.
Reporting period – one (1) month.
Other terms, whereof the definitions are absent in this Section shall be interpreted in accordance with usual and customary business practices as well as in accordance with the laws of England and Wales in force.
2. TERMS AND CONDITIONS
2.1. The Publisher proceeds for rendering of the Services only upon performance of the following conditions:
2.1.1. The Publisher has registered in myTarget System;
2.1.2. The Publisher has submitted the registration form in the Account with it's true and valid details; the Company shall be entitled to request and the Publisher shall provide the Company with the documents confirming the Account details;
2.1.3. The Company has approved the Services rendering by the Publisher via myTarget System or by email.
2.2. The Publisher shall ensure the Advertising materials placement through installation of myTarget Code at the Publisher Media. When loading a certain Publisher Media when it is viewed by the User, myTarget Code shall make an automotive request to myTarget System which, after having processed such request according to its own algorithm, shall determine the Advertising material corresponding to the placement parameters for the Advertising material determined by the Advertiser and may be placed at the Publisher Media. Code of placement of the advertising blocks of other advertisement demonstration systems shall not interfere in myTarget Code operation, and shall not influence the demonstrated Advertising materials in any way.
2.2.1. Publisher Media shall meet the following requirements:
(a) Publisher Media works for russian-speaking audience;
(b) daily audience of Publisher Media is amount over 100 persons a day for Advertising materials which are supported of myTarget System;
(c) Publisher Media is located on the paid hosting; The mobile application is available at the official application stores.
2.3. Each Publisher Media is subject to approval by the Company. The Company may reject any Publisher Media for any reason in its reasonable sole discretion, and may also withdraw approval following acceptance if the Company reasonably determines any Publisher Media:
2.3.1. is no longer complying with the terms and conditions of the Agreement;
2.3.2. has substantially changed since approval or no longer meets the Company's standards;
2.3.3. contains Prohibited Content or associated with a Prohibited Activity (as defined below).
2.4. The Company shall provide the Publisher with the access to the Account in order to control the Services rendering.
2.5. The Company will deliver myTarget Code to the Publisher. The Publisher will not modify myTarget Code.
2.6. The Publisher undertakes to:
2.6.1. perform the Advertising materials placement in accordance with the provisions hereof;
2.6.2. install and maintain performance of the myTarget Code on the Publisher Media in accordance with the provisions hereof;
2.6.3. use commercially reasonable efforts to ensure that the Publisher Media do not contain any content that: (a) violates any applicable law, rule or regulation, (b) promotes violence, the use of firearms, or unlawful subject matter or activities (e.g. discrimination of protected classes, hate crimes, P2P sites, or copyright protection circumvention sites, etc.), (c) violates any intellectual property right or other proprietary or privacy right of any third party, or (d) is defamatory, libelous, deceptive, pornographic or sexually explicit (all such content described above collectively referred to as "Prohibited Content").
2.7. The Publisher shall not, and shall not authorize any third party to, generate impressions, clicks, or any other payable actions on the Advertising materials served via myTarget System through the following methods (collectively, the "Prohibited Activities'): (a) offering any incentives, (b) using automated means, including spiders, scripts, or other non-human agents, (c) auto-spawning of pages or hijacking of an end-user browser, (d) automatic Advertising material refreshes (unless instigated by an end-user page refresh or by ad unit settings), or (e) any other method designed to fraudulently, deceptively, or artificially inflate the number of impressions, clicks, or other payable actions, or other payable actions. The following actions shall also be deemed Prohibited Activities in the event that the Publisher Media is an application: (a) substantially overwriting the Advertising material on a third party website via such application, (b) any rearrangement of the content on a third party web page via such application.
The Publisher understands and agrees that no Remuneration for the Services will be payable to the extent generated as a result of any Prohibited Activity.
2.8. The Publisher reserves the right to suspend or cease any Advertising material placement if the Publisher determines that such action is appropriate to avoid or limit the Publisher's liability or to avoid or prevent the breach of the Agreement.
2.8.1. Publisher shall comply in the process of the Advertising materials placement the following requirements:
(a) Advertising materials of other advertisement demonstration systems shall differ from Advertising materials which are placed through myTarget System;
(b) the change of a page view mode on websites of Publisher Media for the priority demonstration of Advertising materials which are placed through myTarget System shall be prohibited.
2.9. The Company undertakes to:
2.9.1. provide the Publisher with the access to myTarget System through the Account;
2.9.2. ensure the availability and functioning of myTarget System;
2.9.3. pay for the Services in accordance with the provisions of the Agreement.
2.10. The Company reserves the right to suspend or cease delivery of the Advertising materials to any Publisher Media containing Prohibited Content or engaging in any suspicious activity including any Prohibited Activity.
3. REPRESENTATIONS AND WARRANTIES; DISCLAIMER
3.1. Mutual Representations and Warranties. Each Party represents and warrants to the other that: (a) such Party has the full corporate right, power and authority to enter into the Agreement and to perform the acts required of it hereunder, (b) the execution of the Agreement by such party, and the performance by such party of its obligations and duties hereunder, do not and will not violate any agreement to which such Party is bound, and (c) such Party will comply with all applicable laws, rules and regulations in performing its respective obligations and exercising its rights hereunder.
3.2.1 Additional Publisher Warranties. The Publisher further warrants that: (a) it has all rights, permissions and authority necessary to display the Advertising materials on the Publisher Media, and (b) it will not knowingly include, and will use commercially reasonable efforts to prevent the inclusion of, any Prohibited Content on any Publisher Media, (c) it provides the User with clear and conspicuous notice about all material functionality, (d) it obtains informed consent from the User prior to download, (e) it allows the User to maintain control over such User's computing environment.
3.2.2. Additional Company Warranties. The Company further warrants that it would require its Advertisers to ensure the Advertising materials to comply with applicable laws and regulations.
3.3. Disclaimer. MYTARGET SYSTEM AND ALL CONTENTS AVAILABLE OR ACCESIBLE THROUGH IT (INCLUDING BUT NOT LIMITED TO MYTARGET CODE AND THE ADVERTISING MATERIALS), ARE PROVIDED ON "AS IS" AND "AS AVAILABLE" BASIS. UNLESS AS EXPRESSLY SET FORTH IN THE AGREEMENT, THE COMPANY MAKES NO OTHER WARRANTY AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO MYTARGET SYSTEM AND ITS CONTENT, INCLUDING BUT NOT LIMITED TOTHE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE AND FITNESS FOR A PARTICULAR PURPOSE, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR PERFORMANCE. THE COMPANY MAKES NO WARRANTY OF ANY KIND THAT (A) MYTARGET SYSTEM WILL ALWAYS BE AVAILABLE, ACCESIBLE, UNINTERRUPTED, TIMELY, AND SECURE OR OPERATE WITHOUT ERROR OR THAT ANY SOFTWARE PROVIDED HEREUNDER WILL OPERATE WITHOUT ERROR; (B) THE SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; (C) ANY STORED DATA OR REPORTING WILL BE ACCURATE, RELIABLE OR FREE FROM LO; ANY CONTENT, INCLUDING THE ADVERTISING MATERIALS, TRANSMITTED THROUGH THE USE OF MYTARGET CODE IS DONE AT THE PUBLISHER'S OWN DISCRETION AND RISK AND THE PUBLISHER WILL BE SOLELY RESPONSIBLE THEREFORE.
3.4. The Publisher will be fully liable for the safety of its login and password for the access to the Account in myTarget System as well as for the losses which may arise due to unauthorized use of its password and/or access channel.
3.5. The Publisher undertakes to provide the Users with all necessary information about the installation of cookies files and using the Company's data obtained with the help of cookies files and guarantees that it will obtain the Users' consent on the use of cookies files and use by the Company of data obtained with their help.
The Publisher also guarantees that the placement or use of cookies files for the purposes specified herein is not contrary to the legislation governing its relationship with the Users, or that the Publisher had taken all necessary precautions required by the legislation, allowing the installation of cookies files and use of the data obtained with their help.
4. INDEMNIFICATION; LIMITATION OF LIABILITY
4.1. Publisher Obligation. The Publisher shall indemnify, defend and hold harmless, the Company from and against any claims, demands, suits or proceedings ("Claims") brought against the Company by a third party arising from: (a) any Prohibited Content appearing on the Publisher Media excluding user-generated content, (b) any Prohibited Activity engaged in or authorized by the Publisher, (c) a breach by the Publisher of any Publisher covenants, representations or warranties contained herein. The Publisher shall pay the Company any damages finally awarded against the Company and reasonable costs and expenses (including reasonable attorneys' fees).
4.2. Company Obligation. The Company shall indemnify, defend and hold harmless, the Publisher from and against any Claims brought against the Publisher by a third party arising from a breach by the Company representation or warranty contained herein. The Company shall pay the Publisher any damages finally awarded against the Publisher and reasonable costs and expenses (including reasonable attorneys' fees).
4.3. Indemnification procedure. The obligations of each party (the "Indemnitor") under the Agreement to defend, indemnify and hold harmless the other party (the "Indemnitee") shall be subject to the following: (a) the Indemnitee shall provide the Indemnitor with prompt notice of the claim giving rise to such obligation; provided, however, that any failure or delay in giving such notice shall only relieve the Indemnitor of its obligation to defend, indemnify and hold the Indemnitee harmless to the extent it reasonably demonstrates that its defense or settlement of the claim or suit was adversely affected thereby; (b) the Indemnitor shall have sole control of the defense and of all negotiations for settlement of such claim or suit; provided, however, that the Indemnitor shall not settle any claim unless such settlement completely and forever releases the Indemnitee from all liability with respect to such claim or unless the Indemnitee consents to such settlement in writing (which consent shall not be unreasonably withheld); and (c) the Indemnitee shall cooperate with the Indemnitor in the defense or settlement of any such claim or suit; provided, however, that the Indemnitee shall be reimbursed for all reasonable out-of-pocket expenses incurred in providing any cooperation requested by the Indemnitor. Subject to clause (b) above, the Indemnitee may participate in the defense of any claim or suit in which the Indemnitee is involved at its own expense.
4.4. EXCEPT FOR ANY ACTS OF FRAUD, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT, IN NO EVENT WILL: EITHER PARTY BE LIABLE TO THE OTHER FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, ANY INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES; EITHER PARTY'S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL IN NO EVENT EXCEED 10 (TEN) % OF THE AMOUNT OF REMUNERATION PAID BY THE COMPANY TO THE PUBLISHER UNDER THIS AGREEMENT. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. THIS SECTION WILL BE GIVEN FULL EFFECT EVEN IF ANY REMEDY SPECIFIED IN THIS AGREEMENT IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
5. CONFIDENTIALITY
Confidential Information of either Party shall mean any other information designated in writing, or identified orally at time of disclosure, by the disclosing party as "confidential" or "proprietary." Except as otherwise expressly permitted under these Terms, either Party will not disclose any Confidential Information to third parties. Either Party will take reasonable measures to protect the secrecy of, and to avoid disclosure and unauthorized use of, the Confidential Information, including but not limited to limiting the disclosure of such Confidential Information to its employees and independent contractors with a need to know to perform its obligations under these Terms and who have been advised of the confidential nature thereof, and have agreed not to disclose or use such Confidential Information except as permitted by these Terms. Either Party will immediately notify the other in the event of any unauthorized or suspected use or disclosure of the Confidential Information. Notwithstanding the foregoing, neither Party shall have obligations hereunder for any information which is already known to the receiving Party prior to disclosure by the disclosing Party; publicly available through no fault of either Party; lawfully and rightfully disclosed to the receiving Party by a third party under no confidentiality obligation to the disclosing Party; or is independently developed by the Party without reference to Confidential Information. Either Party may disclose Confidential Information if and to the extent it is required by any securities exchange or Governmental Authority to which any Party is subject. If receiving Party or any of its representatives is required by applicable law to disclose any Confidential Information, receiving Party shall, prior to such disclosure, notify the disclosing Party of such requirements so that the disclosing Party may seek, at its sole cost and expense, a protective order or other remedy, and receiving Party shall reasonably assist the disclosing Party therewith. If receiving Party remains legally compelled to make such disclosure, it shall (a) only disclose that portion of the Confidential Information that, in the opinion of its legal counsel, receiving Party is required to disclose, and (b) use commercially reasonable efforts to ensure that such Confidential Information is afforded confidential treatment. Statistics shall be the Confidential information.
6. MISCELLANEOUS
6.1. No Waiver. Failure or delay by the Company in exercising or enforcing any right or remedy it has under the Agreement or at law shall not operate as a waiver of that or any other right or remedy, and shall not preclude or restrict any further exercise or enforcement by the Company of that or any other right or remedy.
6.2. Relationship of the Parties. The Parties are independent contractors, and nothing contained in the Agreement shall be deemed or construed to create an agency, joint venture, partnership, fiduciary or other similar relationship between the parties. There are no intended third party beneficiaries under the Agreement.
6.3. Force Majeure. Neither party will be liable for failure or delay in performing its obligations due to causes beyond its reasonable control, including without limitation acts of God, terrorism, war, riots, acts of government, fire, flood, earthquake, electrical outages, failure of network connections, failure of telecommunications, failure of mobile service providers, or Internet service provider disruptions (including without limitation denial of service attacks).
6.4. Interpretations. Headings and captions are for convenience only and are not to be used in the interpretation of the Agreement.
6.5. The current version of the Terms is available here.
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