Last Revised: January 1, 2015
These Terms shall commence the date you register on the Avazu Private Exchange (APX) Program by accepting the terms and conditions contained herein and will remain in full force unless terminated by either party in accordance to these Terms. Unless otherwise expressly agreed in writing by Avazu, the application of any other contract or conditions (including Publisher’s own Terms and Conditions) is expressly excluded.
These Terms is entered into between You (“Publisher”) and Avazu Inc. (“Avazu”), a Brunei company duly established at Britannia House 22, 2ndFloor, Cator Road BS 8811BANDAR SERI BEGAWAN,BRUNEI. By completing the registration process for the APX program, you represent that you are 18 years of age or older, and can and will be legally bound by this Agreement. No individual or legal entity may participate as a Publisher for the APX program where doing so would be prohibited by any applicable law or regulation
We reserve the right to change or amend these Terms at any time, for any reason, or for no reason at all, at Avauz’s sole discretion. The most recent version of these Terms will be posted here. Although we might provide notice of material changes to these Terms, as a Publisher, it is your sole responsibility to keep yourself informed of any such changes or amendments. Should a Publisher object to any terms and conditions of these Terms or any subsequent changes to these Terms or become dissatisfied with us in any way, Publisher 's only solution is to: (1) notify us in writing of termination two Business Days in advance; (2) terminate your registration as a Publisher to APX program.
The affiliation to the APX program is open to legal entities and individuals aged of more than 18 (eighteen) years old with the full legal capacity to conclude contracts. Upon the registration on APX program, Avazu creates a dedicated “Account” for the Publisher. Publisher can have access to and manage its account in a dedicated and secured space on the Avazu’s website. In this space Publisher can subscribe to advertising campaigns, have access to reporting tools (where applicable) and issue its payment requests to Avazu.
Publisher shall be solely responsible for all usage and activity on its account and for loss, theft or unauthorized disclosure of its password. Publisher undertakes to provide Avazu with prompt written notification of any known or suspected unauthorized use of its account or any breach of the security of its Account.
Publisher shall render media publication services ("Services") as instructed by Avazu for each advertising campaign and Publisher shall be responsible for providing the Services in accordance with these Terms. Publisher shall only use Advertising Materials provided by Company which may include but not limited to any graphic file and/or any and all accompanying printed, hand written or electronically transferred information supplied by Avazu to Publisher to be displayed for advertising purposes. Publisher shall not alter, edit or supplement any Advertising Materials in any way without the prior written approval of Avazu, prior to rendering Services. Likewise, any alternative creative content created by Publisher (“Alternative Content”) must be approved in writing by Avazu prior to rendering Services with such content.
Unless otherwise agreed in writing by Avazu, Publisher agrees that any approved edited or supplemented Advertising Material or Alternative Content approved by Company will become the property of Avazu or Avazu’s licensor and are “works for hire”. Publisher hereby irrevocably assigns to Avazu and waives all rights, title and interest worldwide in and to all approved edited or supplemented Advertising Material or Alternative Content. To the extent reasonably required, and upon the request of Avazu, Publisher shall cooperate during or after performance of Services with Avazu for the retaining, obtaining or maintaining of such rights, including but not limited to the execution of any reasonably required documentation. If otherwise agreed in writing by Avazu that Publisher shall own any approved edited or supplemented Advertising Material or Alternative Content, then Publisher grants Avazu an assignable, exclusive, worldwide license to copy, display, publish, modify, perform, distribute and sell the edited or supplemented Advertising Material or Alternative Content.
Avazu will pay Publisher the total deliverables achieved times the unite price (rate) per deliverable as agreed by both parties in writing (“Cost”). The Cost includes all direct, indirect taxes, commissions, duties, bank charges and other similar levies and expenses that may arise in connection to the applicable IO and these Terms, and no other amounts apart from the Cost shall be imposed on Avazu.
Avazu will pay Publisher at the Established Rate, namely the CPA, CPM, CPC, CPI or other rate at which a Publisher is paid for Services, as defined on the Platform (“APX”), according to payment terms determined by Publisher billing type, Campaign billing types and other criteria, illustrated on the Platform.
Publisher acknowledges and agrees that Avazu will not be required to pay Publisher until the amount owed to Publisher is equal or exceed one thousand U.S Dollars (USD1000.00), otherwise the payment will be carried over to the next billing cycle.
Any activity or a combination of activities performed by end user at a source or as a result of use of a method instructed by Avazu as restricted in the IO or otherwise communicated by Avazu in writing to Publisher shall not be considered a deliverable and shall not form a basis for the Cost.
Publisher is responsible for updating and providing all contact information and bank account details in a timely fashion. Avazu shall be excused from making any payments if such information is not provided, not provided upon request, or is incorrect.
In the event Publisher breaches this Agreement or an IO, Avazu reserves the right to suspend or cancel Publisher’s account, in its sole discretion, and to withhold any and all payments. Avazu retains the right to audit Publisher’s books and records for the purpose of verifying billing data, compliance with this Agreement and any IO and ensuring that no fraudulent activity has taken place. The audit shall be conducted at Avazu’s expense unless the audit reveals that Publisher has violated the terms of this Agreement, an IO or otherwise committed fraud, in which case, Publisher shall bear the costs of the audit.
Except for the Cost, Avazu shall have no further obligation to Publisher. Avazu will not pay or compensate Publisher in any way for deliverables that have been received and rejected by an Advertiser(Advertiser means a third party company or individual that places advertisements on Avazu owned and maintained websites or where Avazu has the contractual right to serve such advertisements.) for any reason, including but not limited to duplicates, invalid data, incomplete data, or fraudulent data, or deliverables that have been determined by Avazu, in Avazu’s sole discretion, to have been generated or procured through the use of any Prohibited Conduct, to be duplicates, invalid, incomplete or fraudulent, or for deliverables which do not meet the criteria agreed to in an IO or otherwise communicated by Avazu to Publisher. In the event that Publisher has already received payment for any deliverables, Avazu reserves the right to seek credit or remedy from future earnings or to demand reimbursement from Publisher. Without diminishing any other rights or obligations of either party herein, Publisher acknowledges that if it receives notice that fraudulent activities or Prohibited Conduct may be occurring on Publisher’s sites(s) or related media, and Publisher does not take any immediate actions to stop the fraudulent activities or Prohibited Conduct, then Publisher will be solely responsible for all associated costs and legal fees resulting from these fraudulent activities or Prohibited Conduct.
Publisher is entitle to transfer the amount owed to it by Avazu to Publisher’s account registered under other distribution platform operated by Avazu, for example Avazu’s mDSP, as a deposit to receiving advertising service upon prior written consent from Avazu. Publisher understands and agrees that the amount so transferred is irrecoverable and nonrefundable thereafter.
Avazu does not permit and has a zero tolerance policy for Prohibited Conduct by any Publisher or any of Publisher’s affiliates and/or sub-publishers. Publisher or any of Publisher’s affiliates, or sub-publishers caught engaging in Prohibited Conduct may be immediately terminated by Avazu, and are subject to forfeiture of any monies due, legal action by Avazu and any other recourse in Avazu’s sole and absolute discretion. “Prohibited Conduct” includes, but is not limited to, the following:
a. Performing Services through email marketing without complying with any and all applicable laws and regulations pertaining to the dissemination of emails in the applicable territory.
b. Performing Services using edited or supplemented Advertising Materials or Alternative Content without the written approval of Avazu.
c. Performing Services (i) that are not in compliance with an applicable IO or any instructions communicated in writing by Avazu; (ii) that are flagged as fraudulent; (iii) through anonymous proxy or VPN servers, bots, automated scripts or zombie networks; (iv) through lead stuffing; (v) by incentivizing consumers with cash, rewards, points, prizes, or content locking unless otherwise agreed in the IO; (vi) through spyware, adware, hacking, phishing, cracking, instant messaging, via click fraud, unsolicited commercial email, illegal downloads of any kind; or (vii) any other activity generally understood to be abusive in the sole discretion of Avazu.
d. Performing Services through any illegal act or by way of deceptive practices, including violating the intellectual property, proprietary or publicity rights of a third party.
e. Place any Advertising Materials on websites with no content, or that promote, link to, reference, mention, condone or contain profanity, sexually explicit material, hate material, violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation, age, family status or any other material deemed to be obscene or otherwise harmful to the reputation of Avazu or its Advertisers, as determined in Avazu’s sole discretion.
g. Attempting in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the Avazu website tags, source codes, links, pixels, modules or other data provided by or obtained from Avazu that allows Avazu to measure performance and provide its services.
h. Performing Services that can or will negatively impact the reputation or goodwill of Avazu, in Avazu’s sole discretion.
Avazu shall be allowed to report all known and/or suspected prohibited conduct to interested parties. Publisher agrees that Avazu shall not be liable for the consequences of such reports and acknowledges that it shall be in Avazu’s sole discretion to determine whether or not prohibited conduct has occurred or is suspected. Furthermore, Publisher, on behalf of itself and any affiliate and/or sub-publisher(s) it may use in performance hereunder agrees to indemnify and hold Avazu and its officers, directors, members, shareholders, employees, contractors, representatives, agents, successors and assigns harmless from and against all direct and indirect costs, losses, damages, liabilities and expenses, including reasonable attorneys’ fees and costs, attributable to any such reports.
Avazu retains sole and exclusive ownership and rights to all data, including all consumer data, identifiable as related to Avazu, as a result of, used in, collected through, or related to any Advertising Materials, Offer(s), customer Registration(s), suppression file or Campaign (“Consumer Data”). Publisher acknowledges that all data, including, without limitation, all Consumer Data, and their structure, organization, methods, concepts and techniques constitute valuable confidential information of Avazu. Avazu and its licensors retain and reserve exclusive ownership of all worldwide copyrights, trademarks, service marks, trade secrets, patent rights, moral rights, property rights and all other industrial rights in the Advertising Materials, customer registrations, campaign(s), including any derivative works, modifications, customizations, updates, or enhancements.
While performing Services for Avazu, confidential information about Avazu's or third parties’ businesses ("Confidential Information") may be disclosed to Publisher. Confidential Information includes, without limitation, these Terms or any IO, Avazu's or third parties’ Advertising Materials, payments and pay structure, login and password, if applicable, business plans, partnership/affiliation arrangements, Avazu’s clients, financing arrangements, technical data, and financial data. In addition, Confidential Information may include information concerning any of Avazu’s or Advertiser’s past, current, or possible future products or methods. Confidential Information does not include (i) information which Publisher shows is or becomes generally known by the public other than as a result of a disclosure by Publisher, (ii) information which Publisher can show was known by Publisher prior to performance of Services and was not first disclosed to Publisher by Avazu, or (iii) information which Publisher can show was independently developed by Publisher without the participation of individuals who have had access to Confidential Information. Publisher shall not disclose, in any form, oral, electronic or paper, Confidential Information by any means to any third party, and Publisher shall only use Confidential Information for the purposes of performance of Services pursuant to this Agreement. Publisher’s duties of non-disclosure and non-use shall continue during the term of these Terms and for a period of five (5) years thereafter. Publisher agrees to disclose the identity and contact information of any affiliate or sub-publisher suspected of breach of this Agreement to Avazu. Additionally, Publisher agrees to the disclosure of its contact information to any third party if reasonably required, in Avazu’s sole discretion, to defend itself in any legal matter. After the termination of this Agreement and upon the request of Avazu, Publisher shall have fifteen (15) days to certify in writing that all copies of Confidential Information, in any whole or partial form, have been destroyed or returned, or used solely as directed by Avazu.
In the event that Avazu is assessed any penalties and/or fines by an Advertiser as a result of Publisher’s actions, including but not limited to Publisher’s participation in any advertising campaigns, Publisher acknowledges and agrees that Avazu shall pass all such penalties and/or fines on to the Publisher and Publisher shall be solely responsible for payment of such penalties and/or fines.
Publisher, on behalf of itself and any affiliate and/or sub-publisher(s) it may use in performance hereunder agrees to indemnify and hold Avazu and its officers, directors, members, shareholders, employees, contractors, representatives, agents, successors and assigns harmless from and against all direct and indirect costs, losses, damages, liabilities and expenses, including reasonable attorneys’ fees and costs, attributable to: (a) any claim made by a third party arising out of the Services; (b) any claim arising out of the acts or omissions of any affiliate, subpublisher or any third party that Publisher employs hereunder; (c) any claim made by a third party arising out of Publisher’s failure to uphold any of its obligations set forth in these Terms; (d) Publisher’s breach of these Terms, including, without limitation, any of Publisher’s representations or warranties as set forth in this Agreement and/or any subsequently issued Insertion Order; and/or (e) any unauthorized use, alterations or editing of the Advertising Materials or Alternative Content.
Avazu may terminate these Terms, or any advertising campaign, upon one (1) Business Day’ s notice, with or without cause, and upon termination, Publisher shall immediately cease all performance of Services or such advertising campaign, and notify its affiliates, and/or sub-publishers immediately, as applicable, to do the same upon receipt of notice. Each IO shall terminate on the End Date unless terminated sooner in accordance with these Terms or as set forth in such applicable IO. Publisher will not be paid for any deliverables rendered after effective termination. Publisher may terminate this Agreement for material breach and failure to cure by Avazu with five (5) Business Days’ prior written notice, or without cause at the end of completion of Services. The term of this Agreement shall begin upon the Effective Date and terminate when all Services have been completed and accepted. Unless otherwise stated in this Agreement, any obligations which by their nature are to continue after termination or expiration shall survive and remain in effect for a period of five(5) year after such happening. Any breach of this Agreement by Publisher or Publisher’s affiliate, or sub-publisher may result in immediate termination at the discretion of Avazu.
Avazu makes no warranties, guarantees, or representations regarding the revenue or profit the Publisher can make from the APX program. Avazu makes no guarantees or representations regarding any information contained in any Advertising Materials or oral communications made by any Avazu or Advertiser representative, employee, or publisher. Publisher assures that it has not relied upon any oral or written information provided by Avazu. Publisher acknowledges that the success of the Services is very much in the hands of the Publisher to promote and expose its website and/or application to generate sufficient traffic in accordance with these Terms.
THE APX PROGRAM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND AVAZU MAKES NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE ANY CAMPAIGN, ADVERTISING MATERIALS, ADVERTISER PRODUCTS AND/OR SERVICES, OR ANY OF ITS SITES (INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT OR ANY IMPLIED WARRANTIES ARISING OUT OF A COURSE OF PERFORMANCE, DEALING OR TRADE USAGE). IN ADDITION, AVAZU MAKES NO REPRESENTATION OR WARRANTY THAT THE OPERATION OF AVAZU SITES OR APPLICATIONS WILL BE UNINTERRUPTED OR ERROR-FREE, AND AVAZU WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS. IN NO EVENT SHALL AVAZU BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, FOR ANY LOSS OF PROFITS, REVENUE, DATA OR SERVICES, ARISING IN CONNECTION WITH THIS AGREEMENT, THE COMPAIGN, THE ADVERTISING MATERIALS OR ANY ADVERTISER PRODUCT, OFFER OR SERVICES, REGARDLESS OR WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER AVAZU HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. FURTHER, UNDER NO CIRCUMSTANCES, REGARDLESS OF THE BASIS OF THE CLAIM, SHALL AVAZU’S LIABILITY EXCEED THE AMOUNT PAID TO PUBLISHER IN THE THREE MONTHS PRIOR TO NOTICE OF SUCH CLAIM STATED IN THE APPLICABLE IO SIGNED BY AVAZU.
Publisher understands and agrees that from time to time Avazu’s websites, applications or other services related to APX program may be inaccessible, unavailable or inoperable for any reason, including, without limitation, (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which Avazu may undertake from time to time; or (iii) causes beyond the control of Avazu or which are not reasonably foreseeable by Avazu, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks, the unavailability, operation, or inaccessibility of websites or interfaces, network congestion or other failures. While Avazu will attempt to provide the services on a continuous basis, Publisher acknowledges and agrees that Avazu has no control over the availability of the services on a continuous or uninterrupted basis. Publisher also understands and agrees that Avazu is not responsible for the functionality of any third-party website or interface. Avazu’s failure to deliver because of technical difficulties does not represent a failure to meet the obligations of these Terms.
a. Each Party is an independent contractor and nothing in these Terms should be construed to create a partnership, joint venture, or employer-employee relationship between the parties. Publisher is not the agent of Avazu or Advertiser and is not authorized to make any representation, contract, or commitment on behalf of Avazu or Advertiser.
b. Business Day(s) shall mean any day other than a Saturday, Sunday or a legal holiday in the People’s Republic of China.
c. These Terms shall be governed by the laws of the People’s Republic of China without regard to conflicts of law provisions. Any dispute arising out of this Agreement or the interpretation thereof, shall be discussed by the parties in the first instance, and if possible resolved by negotiation. In the event that the matter cannot be so resolved, it shall be submitted to and determined by arbitration, by a single arbitrator, in accordance with the rules of the China International Economic and Trade Arbitration Commission (“CIETAC”) then in effect. The seat and place of arbitration shall be Shanghai and the English language shall be used throughout the arbitral proceedings. The arbitral award is final and binding upon both parties.
d. If any provision of this Agreement is prohibited by law or held to be unenforceable, the remaining provisions hereof shall not be affected, and this Agreement shall continue in full force and effect as if such unenforceable provision had never constituted a part hereof, and the unenforceable provision shall be automatically amended so as to best accomplish the objectives of such unenforceable provision within the limits of applicable law.
e. Any waiver of a provision of this Agreement must be in writing and signed by the party to be charged. A valid waiver hereunder shall not be interpreted to be a waiver of that obligation in the future or any other obligation under this Agreement.
f. This Agreement, together with each IO referencing this Agreement, constitutes the entire understanding and agreement between the parties relating to the subject matter thereof and supersedes any prior or contemporaneous agreement between the parties relating to the performance of work under any IO.