Channel Partner Terms & Conditions
These Channel Partner Terms and Conditions (“Terms & Conditions”), together with such Principal Terms and/or IOs (as defined below) as may be executed by the parties from time to time which reference these Channel Partner Terms and Conditions (collectively, the “Agreement”), set forth the terms under which you (“you”, “your” or “Company”) may resell the Services offered by PaeDae, Inc. dba The Mobile Majority (“TMM”), which are further described herein and on newgimbal.wpengine.com. Please read these Terms and Conditions carefully. By clicking the “submit” box and/or otherwise indicating electronic acceptance of these Terms and Conditions, or by otherwise physically executing these Terms and Conditions, you agree to become bound thereby. If you do not agree to all the terms and conditions of the Agreement, you will not have any right to use or resell the Services. TMM’s acceptance is expressly conditioned upon your assent to all the terms and conditions of the Agreement. In the event of a conflict between these Terms & Conditions and the Principal Terms or any IO, the following order of precedence shall apply: the Principal Terms, followed by these Terms & Conditions, followed by the IO, except to the extent expressly stated otherwise in the Principal Terms or applicable IO. If these Terms & Conditions are considered an offer by TMM, acceptance is expressly limited to these terms.
In addition to the definitions within the body of this Agreement, the following terms are defined as follows:
“Ad” or “Advertisement” means all written, digital or graphically rendered marketing materials provided by or on behalf of an Advertiser for display or distribution to or via the TMM Platform (including but not limited to displays prompted by TMM’s patent pending and proprietary technology, and any banners, text or graphic links, pop-ups, emails, videos, rich media, and newsletters or any other similarly designed advertising format);
“Advertisers” mean the persons or entities (or their agencies) who purchase advertising on the TMM Platform through the sales and marketing efforts of Company;
“Campaign” means specific Advertisement campaigns to be placed by TMM in accordance with specifications provided by Company such as Advertiser name, start and end dates and total purchase amount or an unlimited spend based on specific pricing;
“Clickthrough” means each time a visitor clicks on an Advertisement;
“Confidential Information” includes, without limitation, the terms of this Agreement and any IO(s), all information related to the Campaign(s), information pertaining Publishers and other Advertisers, marketing strategies, financial, business, customer and commercial information, information that is not generally known to the public or that should reasonably be understood to be confidential or proprietary, and trade secrets;
“IO” means an insertion order or similar order provided to TMM requesting specific Advertisements and/or Campaigns;
“Principal Terms” means a document executed by both parties that sets forth the amounts to be paid pursuant to this Agreement, and such other terms as may be agreed upon by the parties.
“TMM Platform” means the various websites, mobile websites and/or applications (the owners and operators of such websites and applications, collectively, “Publishers”) that have made advertising inventory available for the display of Advertisements to be facilitated by TMM;
“TMM User Interface” means the online user interface that may be available through TMM as part of the Services that includes the ability for Company to create or alter Campaigns;
“Services” means TMM’s service for the placement of Advertisements into the TMM Platform (including the TMM User Interface);
“Trademarks” means a party’s trademarks, service marks, trade names and logos.
2. COMPANY OBLIGATIONS; APPOINTMENTS; LICENSES; RESTRICTIONS.
(a) Company Obligations. Company shall make commercially reasonable efforts to market and promote the Services to prospective Advertisers. Company shall (a) acquire the necessary rights from Advertisers to grant to TMM all rights and licenses as described in this Agreement; (b) pay TMM for each impression and for all other applicable charges in connection with the Services in accordance with the pricing set forth in the Principal Terms, in any applicable IO, in the TMM User Interface or as otherwise agreed between the parties from time to time (collectively, the “Fees”) and in accordance with this Agreement; and (c) provide the creative content to be used in the Advertisements (the “Content”) to TMM in a format and delivery method as reasonably requested by TMM from time to time, with the exception of materials to be generated or provided by TMM. Company represents and warrants that it has all due authority to enter into a legally binding agreement on behalf of Advertiser and that this Agreement shall be so binding upon Company and Advertiser. Company further agrees that it will be jointly and severally liable for any and all payments, damages and other liabilities under this Agreement to which Advertiser would be responsible.
(b) Appointment; Licenses. TMM hereby appoints Company to be a non-exclusive reseller of the Services to prospective Advertisers during the term of this Agreement, and Company accepts such appointment pursuant to the terms and conditions in this Agreement. TMM hereby grants to Company a worldwide, non-exclusive, limited, non-transferable, non-sublicenseable right to make use of the Services during the term of this Agreement on behalf of Advertisers pursuant to the terms and conditions in this Agreement, for the purpose of enabling Advertisements purchased by Advertisers to be displayed on the TMM Platform. Company hereby grants to TMM a worldwide, non-exclusive, royalty-free right and license, to use, reproduce, modify, distribute, publicly perform, publicly display and digitally perform the Advertisements and the Content on and through the TMM Platform and for marketing and promoting the Services.
(c) Restrictions. Company shall not alter, modify, copy, translate, reverse engineer, decompile or disassemble the Services or any portion(s) thereof or creating derivative works therefrom, tamper with or using any workaround to interfere with the proper working of the Services or any security measure used by the Services, or attempt to do any of the foregoing.
3. MARKETING MATERIALS; LOGIN CREDENTIALS; RESALE AGREEMENTS; OWNERSHIP.
(a) Marketing Materials. Company shall only use the marketing materials provided by TMM or otherwise approved in writing (email sufficing) by TMM for the purposes of reselling, promoting or marketing the Services. Company shall not modify any such marketing materials without TMM’s prior written approval (email sufficing). Company is strictly prohibited from using TMM marketing materials to train other persons or entities outside of Company’s direct organization unless it receives express written permission from TMM, or for any competitive, comparative or benchmarking purposes. Company shall not misrepresent the Services or the prices applicable thereto, or make unfair, misleading, inaccurate, or false claims about the Services. Company’s violation of these terms or any other terms of the Agreement may, in TMM’s sole discretion, result in immediate termination of the Agreement, as well as any other remedies that may be available.
(b) Login Credentials. In the event that Company is given login credentials for access to the TMM User Interface and/or TMM website, Company shall keep such login credentials in strictest confidence, limiting access and disclosure to those employees of Company with a need to know for the purpose of implementing the Agreement. Company is solely responsible for all use of such login credentials.
(c) Resale Agreements. Company will be responsible for managing the relationship with, and facilitating the provision of Services to, each Advertiser. Company will enter into an agreement for the Services directly with each Advertiser (“Resale Agreement”). In no event may Company enter into a Resale Agreement that establishes an expectation, right or obligation that TMM, whether directly or indirectly, will provide Services, training, customer support, particular service levels or technical support to any Advertiser or other person or entity without the prior written approval of TMM. Company will be solely responsible for setting the fees for the Services provided to Advertisers, and for invoicing and collecting payment from such Advertisers.
(d) Ownership; Reservation of Rights. Except for the limited license rights expressly granted to Company in this Section, TMM is the sole and exclusive owner of, and retains all right, title and interest in and to, the Services and all portions thereof, the technology associated with the Services, and TMM’s Trademarks, and all intellectual property rights associated with the foregoing, including but not limited to all patent, copyright, trademark, trade secret and other proprietary rights therein. Nothing herein shall be construed as a transfer or conveyance by TMM of ownership or title to the Services or portions thereof or to any patents, copyrights, trade secrets, trademarks and other intellectual property or proprietary rights therein. Except for the limited license rights expressly granted to TMM in this Section, Company retains all right, title and interest in and to Company’s own products and services and Company’s Trademarks, and all intellectual property rights associated with the foregoing, including but not limited to all patent, copyright, trademark, trade secret and other proprietary rights therein (excluding the Services to the extent that they are utilized in conjunction with the Advertisements).
4. EFFECTIVE DATE; IO PROCESS.
This Agreement is effective upon Company’s electronic acceptance or physical execution thereof. This Agreement will remain in effect until terminated as permitted herein. IOs may be entered into by email, phone (to be followed up by an email confirmation), through the TMM User Interface, or otherwise in writing. No IO or modification thereto is binding on TMM until it is accepted in writing by TMM (email sufficing).
5. PRIVACY POLICIES; DATA.
6. CAMPAIGN DISPLAY; EXTENSIONS; TERM AND TERMINATION.
(a) Campaign Display. Company understands and agrees that inventory or Ad placement on the TMM Platform is subject to availability and is not guaranteed, and Company shall not represent to any Advertiser or prospective Advertiser that any inventory or Ad placement on the TMM Platform is guaranteed. TMM will use good faith efforts to have Advertisements placed for the Campaign period designated in the applicable IO unless such Campaign is terminated as permitted herein. Any actions by Company to adjust or make changes to the Campaign on the TMM User Interface, or other changes/adjustments made by Company in writing, shall automatically be incorporated into the IO upon being accepted by TMM. As between the parties, Company is solely responsible for all activities and adjustments made by or on behalf of Company and Advertiser via the TMM User Interface.
(b) Extensions; Term and Termination. Unless specifically prohibited in the applicable IO, TMM reserves the right to extend the Campaign in order to deliver the Advertisements in compliance with the specifications set forth in such IO. Unless expressly prohibited by the IO, Campaigns may be cancelled with 48 hours notice by either party in writing. Company will continue to incur payment obligations to TMM for all impressions, Clickthroughs, or other tracking or engagement methods associated with a Campaign until such termination is effective. TMM may terminate this Agreement, any IO or any Campaign at any time and for any reason whatsoever, or for no reason at all, by providing written notice thereof to Company. Company may terminate this Agreement, any IO or any Campaign by providing sixty (60) days prior written notice to TMM. Upon cancelation any unspent budget will be reimbursed to Company to the extent pre-paid by Company. Sections 1, 2(c), 3(b), 3(d), 5, 8 (to the extent of outstanding payment obligations), 9, 11, and 12 through 16 shall survive termination or expiration of the Agreement.
TMM will not accept or place any Advertisement or Content that, in TMM’s determination in its sole discretion or in the sole discretion of any Publishers contains, promotes or links to inappropriate content which may include, but is not limited to: content regarding use of alcohol, tobacco or illegal substances; nudity, sex, pornography, or adult-oriented content; expletives or inappropriate language; content promoting illegal or unethical activity, racism, hate, “spam,” mail fraud, pyramid schemes, credit-repair or advice not permitted under law; content that is libelous, defamatory, infringing, false, misleading, contrary to public policy, or otherwise unlawful; content which includes diversionary links, exit “pops” or any other element which distracts from the primary Advertisement content; Content which may bring TMM and/or its affiliated companies negative publicity, or any other Content deemed inappropriate. TMM also reserves the right, in its sole discretion, to reject an Advertisement that it believes is lacking a “value-add” to end- users or where the Advertiser already has a business relationship with TMM. TMM reserves the right to reject, not publish, or not place any Advertisement at any time in its sole discretion. A decision by TMM to not publish or not place any requested Advertisement does not constitute a breach of this Agreement nor otherwise entitle Company or Advertiser to any legal remedy, provided an appropriate refund will be made for any prepayment by Company for the applicable portion of the Campaign that was not displayed.
The impressions, Clickthroughs and other end user actions counted by the ad server(s) and/or systems utilized by TMM shall be used as the sole basis for calculating the amounts owed with respect all Fees, and Company shall communicate such measurements to Advertiser as being the official, definitive count of record for each Campaign. Company will be solely responsible for paying the Fees due under this Agreement to TMM, regardless of whether Company has collected such amounts from the Advertisers. Company shall pay all of the amounts due to TMM for each Campaign in accordance with the payment terms set forth in the Principal Terms, via wire transfer, ACH payment or check; credit card payments are not accepted without the prior written approval of TMM. If the Principal Terms do not set forth the time frame by which payments must be made, then payments for a Campaign must be made prior to the start of the Campaign. All amounts payable hereunder exclude all applicable sales, use and other taxes. Company will be responsible for payment of all such taxes (other than taxes based on TMM’s net income), and any related penalties and interest arising from the payment of any taxes hereunder. Amounts due under this Agreement and not paid by their due date shall incur interest of one and a half percent (1.5%) per month or the maximum allowed by law, whichever is less, and Company shall be responsible for the reasonable collection costs (including without limitation attorneys’ fees and collection agency fees) incurred by TMM in its efforts to collect such overdue amounts. TMM is not required to continue to perform Services until all payments due under the terms of the applicable IO or this Agreement are paid up to date.
9. WARRANTY DISCLAIMER.
THE SERVICES, THEIR USE AND THE RESULTS OF SUCH USE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TMM MAKES NO GUARANTEES WITH RESPECT THERETO, AND DOES NOT GUARNATEE THAT ANY INVENTORY WILL BE AVAILABLE. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, TMM MAKES NO WARRANTIES (INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT), GUARANTEES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS, OR OTHER INDUCEMENTS, WHETHER EXPRESS, IMPLIED, ORAL, WRITTEN, OR OTHERWISE, EXCEPT AS EXPRESSLY SET FORTH HEREIN. TMM DOES NOT WARRANT OR GUARANTEE CONVERSION RATES, PAY-UP RATES, RESPONSE RATES OR ABILITY TO CONVERT THE RESPONSES INTO SALES OR OTHER ACTIONS. TMM DOES NOT WARRANT OR GUARANTEE THE PROFILE OR DEMOGRAPHICS OF ANY END USER OR RESPONDENT. TMM DOES NOT GUARANTEE TO MATCH COLORS, TEXT, PHOTO IMAGE OR SCREEN DESIGN. ALL IOs AND CAMPAIGNS ARE CONTINGENT UPON TMM’S ABILITY TO PROCURE NECESSARY ONLINE ACCESS AND INVENTORY. TMM WILL MAKE GOOD FAITH EFFORTS TO MEET SCHEDULED DELIVERY OF ADVERTISEMENTS AND ONLINE DATES, BUT MAKES NO GUARANTEE AND WILL NOT HAVE LIABILITY FOR ITS FAILURE TO MEET SAID DATES, NOR WILL IT HAVE ANY LIABLITY FOR THE CONTENT OF ANY ADVERTISEMENT OR ANY SITES, APPS OR MEDIA ON WHICH THE ADVERTISEMENTS APPEAR, NOR FOR ANY INTERRUPTIONS IN THE SERVICES.
10. REPRESENTATIONS AND COVENANTS.
11. LIMITATION ON LIABILITY.
UNDER NO CIRCUMSTANCES WILL TMM BE LIABLE FOR INDIRECT, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF IT HAS OR SHOULD HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF REVENUE, PROFITS OR DATA ARISING FROM OR RELATED TO THE AGREEMENT, THE SERVICES (INCLUDING, WITHOUT LIMITATION, TMM’S WEB SITE, ANY APPS, MEDIA OR WEBSITES PROVIDED BY PUBLISHERS, OR ANY ADVERTISEMENTS) OR ARISING FROM ANY PROVISION OF THE AGREEMENT. IN NO EVENT SHALL TMM’S AGGREGATE LIABILITY ARISING OUT OF OR WITH RESPECT TO THE AGREEMENT EXCEED THE TOTAL AMOUNTS PAID BY COMPANY UNDER, OR IN CONNECTION WITH, THIS AGREEMENT IN THE THREE (3) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.
(a) Indemnification. Each party will indemnify and hold harmless the other party and its officers, directors, employees, agents and permitted successors and assigns from and against any and all liability, loss, damage, claim and expense, including reasonable attorneys’ fees and court expenses, arising out of or relating a third party claim or demand resulting from the indemnifying party’s breach of any provision or term of this Agreement. In addition, Company will indemnify and hold harmless TMM and Publishers and its and their respective officers, directors, employees, agents and permitted successors and assigns from and against any and all liability, loss, damage, claim and expense, including reasonable attorneys’ fees and court expenses, arising out of or relating to (i) the content or subject matter of any Advertisement, IO or collateral information (including, but not limited to, allegations that the relevant Content or subject matter violates the rights of a third party, causes emotional or physical injury to any third-party, is defamatory or obscene, or violates any law, regulation or other judicial or administrative action); (ii) Company’s and Advertiser’s intellectual property, including but not limited to any infringement action, misuse, registration or non-registration; and (iii) the Company’s or Advertiser’s fulfillment activities related to the Campaign(s) and any customer service issues related to fulfillment.
(b) Indemnification Procedure. The indemnified party shall: (i) give the indemnifying party prompt written notice of any claim, action, suit or proceeding for which the indemnified party is seeking indemnity; (ii) grant complete control of the defense and settlement to the indemnifying party (at the indemnifying party’s expense), provided that the indemnifying party will not acquiesce to any judgment or settlement which may have an adverse effect upon the indemnified party without the indemnified party’s prior written consent (which shall not be unreasonably withheld or delayed); and (iii) reasonably cooperate with the indemnifying party, at the indemnifying party’s expense, in defense and settlement of such claim. The indemnifying party shall provide the indemnified party the option to engage separate counsel, at the indemnified party’s expense, to participate in any claim giving rise to indemnification hereunder.
Each party agrees that from the time of receipt of any Confidential Information from the other party (“Disclosing Party”) hereunder, the receiving party (“Receiving Party”) shall use the same means it uses to protect its own Confidential Information, but in any event not less than reasonable care, to prevent the disclosure and to protect the confidentiality of the Disclosing Party’s Confidential Information. The fact that Confidential Information does not carry a proprietary legend, or is transmitted orally, shall not act as a waiver to deprive such information from protection under this Agreement. The obligations of each Receiving Party hereunder shall survive until such time as all Confidential Information of the other party disclosed hereunder becomes publicly known and generally available through no action or inaction of the Receiving Party. Confidential Information does not include information that the Receiving Party can document (i) is or becomes (through no improper action or inaction of the Receiving Party or its Representatives (as defined below)) generally known by the public, (ii) was in its possession or known by it without restriction prior to receipt from the Disclosing party, (iii) becomes available to it from a source other than the Disclosing party or its Representatives having no obligation of confidentiality, or (iv) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information. The term “Representatives”, when used with respect to either party, means that party’s affiliates, agents, officers, directors, consultants and employees). Receiving Party may use Confidential Information received from the Disclosing party only in connection with and to further the purposes of this Agreement and may only provide such Confidential Information to its respective Representatives who have a “need to know” such Confidential Information and who are bound by written agreement or by operation of law to confidentiality obligations no less restrictive than those contained herein with respect to such information. Each party will be responsible for a breach of this Agreement by any of its Representatives. Each party shall promptly notify the other party upon discovery of any unauthorized use or disclosure of Confidential Information and will cooperate with the other party in every reasonable way to help regain possession of such Confidential Information and prevent its future unauthorized use. Company will not use, and will not enable or permit any third party to use, any of TMM’s Confidential Information and/or any of TMM’s marketing materials to the detriment of TMM, nor for any competitive, comparative or benchmarking purposes. After this Agreement expires or terminates, Company will promptly return or destroy TMM’s Confidential Information and all marketing materials related to the Services. Notwithstanding anything in this Agreement to the contrary, TMM may use and disclose aggregate information that does not identify Company, Advertiser or any end user for the purposes of improving, enhancing and marketing its business. Company agrees that it will not make any statements or comments, whether oral or written, that are disparaging, derogatory or harmful to TMM or its reputation.
TMM has proprietary relationships with the Publishers and others that participate in the TMM Platform. With the exception of reasonably documented, pre-existing relationships with direct publishers or networks, or relationships entered into in the ordinary course of Company’s business, during the term of this Agreement and for a period of twelve (12) months thereafter, Company agrees not to solicit, induce, recruit or encourage, directly or indirectly, any Publisher that Company knows, or has reason to know, is a Publisher in the TMM Platform for the purpose of obtaining the placement or hosting of advertising in any form without the express, written consent of TMM. In the event that Company violates this provision, Company shall pay TMM the amount TMM would have earned had the Advertiser used TMM to place the advertisements, as liquidated damages and not as a penalty.
The parties agree and understand that a material breach of Sections 13 (“Confidentiality”) and 14 (“Non-Solicitation”) will cause the non-breaching party to suffer irreparable harm and that monetary damages would be inadequate to compensate for such damage. Accordingly, the parties agree that in such event, the non-breaching party will, in addition to all other remedies, be entitled to preliminary and permanent injunctive relief without the necessity of showing any actual damage or posting a bond and/or shall be entitled to a decree of specific performance of the terms of this Agreement against the party who has breached or threatened to breach such Sections. The foregoing remedy is a material, bargained for basis of this Agreement and has been taken into account in each party’s decision to enter into this Agreement. TMM may audit Company for its compliance with the Agreement. TMM shall bear the cost of any such audit unless the audit determines that Company is not in compliance with the Agreement, in which case, Company shall promptly reimburse TMM for such audit costs upon invoice from TMM.
Except as explicitly stated in this Agreement, TMM grants no rights to use its patents, copyrights, trade secrets, trademarks or trade names, whether directly or indirectly, without prior written approval. TMM may place Company’s or Advertiser’s logo on TMM’s website or other marketing materials. Neither party will be liable for failure or delay in performing any of its obligations (excluding payment obligations) if such failure or delay is due to circumstances beyond the party’s reasonable control, including, without limitation, accident, war, acts of God or any governmental body, failure of software, hardware or equipment of third-parties. All notices, requests and other communications to any party hereunder shall be in writing and shall be deemed given if delivered personally, facsimiled (which is confirmed) or sent by overnight courier (providing proof of delivery) to the parties at their addresses set forth in the Preamble to the Principal Terms, or, in the case of notices sent by TMM to Company, upon being sent by TMM to the most recent email address made available by Company to TMM. This Agreement shall be governed by the laws of the state of California without reference to its conflicts of laws principles. All actions and proceedings arising out of or relating to this Agreement may be heard and determined solely in any State or federal court of competent jurisdiction located in the County of Los Angeles, State of California. In connection with the foregoing, each of the parties to this Agreement irrevocably (a) consents to submit itself to the personal jurisdiction of the State and federal courts of competent jurisdiction located in the County of Los Angeles, State of California, and (b) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court. Neither party shall assign this Agreement without the prior written consent of the other party, except that either party may assign this Agreement in its entirety without the prior consent of the other party as part of and in connection with a change of Control of the assigning party (including without limitation by way of merger, consolidation or sale of equity or of the parent or ultimate parent entity of the assigning party) or a sale of all or substantially all of the assets of the assigning party, provided that the assigning party notifies the other party in writing of such assignment and the successor agrees in writing to be bound by the terms and conditions of this Agreement. For purposes of the foregoing sentence, “Control” means possession of the power to direct or cause the direction of management or policies of a company or person, whether through the ownership of securities or partnership or other ownership interests, by contract or otherwise. Assignments in violation of the foregoing shall be null and void.. An amendment to the parameters of an IO as permitted in this Agreement does not amend other provisions of this Agreement. This Agreement is deemed to have been drafted jointly by the parties. The failure of either party to require the performance of any term of this Agreement or the waiver by either party of any breach under this Agreement will not prevent a subsequent enforcement of such term by such party nor be deemed a waiver of any subsequent breach. If any provision or provisions of this Agreement will be held to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby. Any clause, provision, or statutory language required to be included in this Agreement by applicable law will be deemed incorporated herein. TMM and Company are independent contractors and agree that this Agreement does not establish any agency, joint venture or partnership between them and neither party has the authority to bind the other. This Agreement constitutes the entire agreement between the parties with regard to its subject matter, and supersedes and replaces all prior oral or written agreements; however, IOs placed after this Agreement shall be considered part of this Agreement. TMM reserves the right to modify these Terms and Conditions at any time upon thirty (30) days’ prior written notice by posting the new terms and conditions on its website. Changes are effective immediately upon the end of such notice period.
Last updated on: November 9, 2015