Last Updated February 26, 2019
PUSH TOAST PUBLISHER DISTRIBUTION AGREEMENT
This Push Toast Publisher Distribution Agreement (this “Agreement”), effective as of the date agreed to on-line (the “Effective Date”), is entered into by and between Red Spark, LP d/b/a Push Toast, a New Jersey limited partnership (“Company”), and the individual or entity who signed up through the Company's on-line interface (“Publisher”) (each a “Party,” and, collectively, the “Parties”).
WHEREAS, Publisher desires to monetize activities involving Publisher's Users who subscribe to Company's push notifications, or some other type of interface, code or technology provided or offered by Company (collectively, the “Company Products”) through one or more Publisher Properties (where “Publisher Properties” is defined as Publisher's applications or websites) to allow the display of images, text, sound, video or other content used as, or as part of, an advertisement (the “Advertising Materials”) or perform other revenue generating activities (the “Monetization Activities”); and
WHEREAS, the Parties are entering into this Agreement to set forth the terms relating to use of the Company Products on the Publisher's Users who subscribe to Company Products through Publisher Properties.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereto, intending to be legally bound, hereby agree as follows:
1.1. Distribution Methods. The Parties agree that certain terms relating to this Agreement may be set forth in the Company’s designed publisher account management and reporting interface (the “Dashboard”).
1.2. Account Setup. Company may provide Publisher with an initial login and password to access Company’s Dashboard. Publisher shall be solely responsible for maintaining the confidentiality of its account and associated password and for any and all activity under Publisher’s account, and shall immediately notify Company of any unauthorized use of its account. Publisher shall not permit or assist any third party in accessing the Dashboard using Publisher’s login and password, and shall not assign or otherwise allow access to its account by any third party without Company’s prior written permission.
1.3. Licenses. Company hereby grants Publisher a revocable, non-exclusive, non-transferable, non-sublicensable, and royalty-free limited license to: (a) use the Company Products designated in this Agreement or in the Dashboard; (b) use Company’s Dashboard (if applicable), and any related services provided by Company; (c) make available the Advertising Materials to Users of the Publisher Properties, in each case pursuant to this Agreement for the sole purpose of fulfilling Publisher’s obligations during the Term; and (d) utilize the Company Services in compliance with the terms of this Agreement, the Company Services consisting of Company’s provision of the Dashboard and associated platform, Company’s provision of the Company Products to be distributed to the Users of the Publisher Properties, Company’s distribution or syndication of third party content, monetization products, or Advertising Materials through the Company Products, and all software, data, reports, analytics, technologies, and content made available through any of the foregoing.
2.1. All materials, systems and any related services provided in connection with this Agreement, including their operations, interfaces, and features, and any improvements, modifications, or derivatives thereof, are protected under applicable copyright, trademark and other intellectual property laws and constitute Confidential Information and trade secrets owned exclusively by Company.
2.2. All rights in, to, under and relating to the Company Products, Company Services, and User Data are reserved to Company, except for the limited licenses granted to Publisher in this Agreement.
2.3. Publisher shall not (and shall not permit any third party to): (a) tamper with, disable, copy, modify, decompile, reverse engineer, or change any Company Products, Services, or Advertising Material; (b) merge, bundle or distribute any Company Products or Advertising Material with any other product or service, unless permitted pursuant to this Agreement or otherwise in writing by Company; (c) use any Company Products or Advertising Material to create any other product or service; (d) block, interfere with the operation of, uninstall, facilitate the uninstallation of, or otherwise impair the functionality of any Company Products or technologies; (e) attempt to derive the bidder identities, pricing, keywords, performance data, and other bidding data from the Company Products, including without limitation the Company push notifications; or (f) attempt to derive the source code or the underlying algorithms or protocols for the Company Products.
5.2. Publisher agrees and acknowledges that Company has proprietary relationships with advertisers, other publishers and third parties that participate in Company’s network (collectively, “Partners”). Accordingly, during the Term and for six (6) months thereafter, Publisher and its affiliated entities, shall not (directly or indirectly, either on behalf of itself or any third party): (a) with respect to any Partner that Publisher (or any affiliated entity) knows or reasonably should know has a relationship with Company (each, a “Covered Partner”): (i) circumvent Company’s relationship with any Covered Partner, (ii) serve as a publisher or source of impressions, clicks, or other advertising inventory for any Covered Partner, (iii) encourage or cause any Covered Partner to reduce or terminate its relationship with Company, or (iv) collaborate or contract with any Covered Partner to monetize Internet traffic from the Publisher Property; or (b) in addition to its obligations under Sections 2 and 6, Publisher shall not utilize any information obtained as a result of its relationship with Company to develop, market, sell, license or provide any software, technology or services that are similar to or competitive with the Company Products, including without limitation the monetization services provided under this Agreement and Company’s proprietary optimization and behavioral advertisement targeting technology, methodology, or algorithms. Publisher acknowledges and agrees that the foregoing restrictions are reasonable and necessary for Company to protect its rights in its Confidential Information and trade secrets that it has invested substantial time and resources to develop. The Parties agree that any breach of either Party’s obligations under this Section 5.2 would result in irreparable injury, and that in the event of any breach or threatened breach hereof, the complaining Party will be entitled to seek injunctive relief in addition to any other remedies to which such Party may be entitled, without the necessity of posting bond.
6.1. “Confidential Information” of a Party means all information of, or concerning, such Party, its affiliates, and its and their respective directors, partners, officers, employees, managers and members, which is confidential, proprietary or competitively sensitive, or which by the nature of such information and the circumstances surrounding its disclosure should be reasonably understood to be confidential and is disclosed to or obtained by the other Party, and is disclosed to or obtained by the other Party, it being agreed that Company’s Confidential Information includes without limitation: (a) Company’s software and source code, processes and formulas, product designs, sales, financial information, product and business plans, advertising revenues, bid information, usage rates, Internet monetization strategies, and customer data; (b) the terms of the Agreement, the existence and nature of the commercial relationship between Company and Publisher; (c) the identities of and information relating to Company’s relationships with advertisers, publishers, distribution partners, and other clients; (d) all code, technical information, pricing information, and data contained in or relating to the Company Products, including without limitation bidder identities, pricing and bidding data, performance data, and keywords in Company’s push notifications or other advertising feeds; (e) all code, technology, technical information and reporting, and account management systems and interfaces used to provide the Company Products hereunder (including Company’s proprietary optimization and advertisement targeting technology and algorithms); and (f) all data related to activities of Internet users who accesses or might access the Publisher Properties (a “User”) through or as a result of any Company Product or a User’s interaction with Advertising Material, as well as any data derived from such data, including without limitation Company Product performance data, number of clicks or impressions, and other data regarding User interactions with the Company Products or Advertising Materials (the “User Data”), which User Data constitutes Company’s exclusive property. Confidential Information does not include information that: (i) is in or enters the public domain without breach of this Agreement; (ii) the receiving Party lawfully receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation; (iii) the receiving Party lawfully knew prior to receiving such information from the disclosing Party; or (iv) the receiving Party develops independently without use of the disclosing Party’s Confidential Information.
6.2. Each Party agrees it will: (a) not disclose to any third party or use the Confidential Information except as expressly permitted in this Agreement or as otherwise necessary to perform its obligations or exercise its rights under the Agreement; (b) take all reasonable measures to maintain the confidentiality of all Confidential Information of the other Party in its possession or control; and (c) ensure that its affiliates, employees, agents, contractors, and other individuals with access to Confidential Information of the other Party are legally bound to comply with the confidentiality obligations set forth herein. Publisher may not use or disclose any aggregate data (e.g., such as performance data) in a manner that would permit a third party to identify which portion of such data is attributable to Company. Without limiting the forgoing, each Party shall not use the other Party’s Confidential Information, including without limitation information from the Company Products, to target or solicit potential advertisers, publishers, distribution partners, or other clients. Each Party may disclose Confidential Information of the other Party as necessary to comply with the requirements of legal or administrative process, provided that such Party provides the other Party with reasonable advance written notice of any such intended disclosure and cooperates reasonably with its efforts to obtain a protective order. In addition, the Parties hereby agree that except as required by law (and then only with prior written notice and cooperation, as provided in the preceding sentence) or with the written consent of both Parties, neither may make any press release or other public announcement regarding their relationship or this Agreement.
6.3. The Parties agree that any breach of either Party’s obligations under this Section 6 would result in irreparable injury, and that in the event of any breach or threatened breach hereof, the complaining Party will be entitled to seek injunctive relief in addition to any other remedies to which such Party may be entitled, without the necessity of posting bond.
7.1. The term of the Agreement (the “Term”) shall commence on the Effective Date and shall continue until terminated as permitted herein.
7.2. Either Party may terminate this Agreement for any reason upon sixty (60) days’ prior written notice to other Party. Company may terminate this Agreement immediately without notice in the event of Publisher’s material breach of this Agreement or if Publisher engages in activities that in Company’s good faith belief would expose Company or its partners to civil or criminal liability or reputational harm. Upon any termination of this Agreement, all licenses and other rights granted hereunder shall immediately terminate, and each Party shall promptly return to the other, or destroy, any Confidential Information or copies thereof in such Party’s possession, whether in tangible or electronic form.
7.3. All provisions of this Agreement relating to ownership of data or intellectual property, confidentiality, indemnification, non-circumvention, non-solicitation, disclaimers of warranties and limitations of liability, as well as any other provisions hereof which, by their nature, are intended to survive termination of this Agreement, shall do so.
8.1. During the term, Company shall pay Publisher based on a share of the Net Revenues generated advertising activities involving Publisher’s Users who subscribe to the Company Products through one or more Publisher Properties in accordance with the terms set forth in this Agreement or reported in any Dashboard or reports provided to Publisher. Unless otherwise mutually agreed upon by the Parties or specified in the Dashboard, Company shall pay Publisher (70%) of the Net Revenues as defined in this section. Payment terms may be adjusted during the Term upon written notice to Publisher, including through email. As used herein, “Net Revenue” means revenues actually collected and directly generated from the Company Products based on advertising activities involving Publisher’s Users who subscribe to the Company Products through one or more Publisher Properties, during the applicable payment term, less the following deductions: allocation of operational costs (including without limitation virtualized computing, hosting, storage and bandwidth charges) as determined by Company in its reasonable discretion; payment processing fees; referral fees; bad debt; refunds; returns; and reserves for advertiser chargebacks and bad debt, including for traffic quality issues. Any prepayments made by Company based on uncollected revenues shall be credited against future amounts due. Unless otherwise agreed upon by the Parties, payments to Publisher will be made within sixty (60) days after receipt of an invoice based on finalized numbers for the relevant calendar month, in the form of U.S. dollars. The minimum outgoing payment threshold to Publisher for any calendar month is $500 USD, and amounts owed under the threshold will be accrued until the calendar month in which the payment balance reaches or exceeds the threshold, or upon termination of this Agreement.
8.2. Publisher acknowledges that any payments owed Publisher arising, directly or indirectly, from any the following activities (as determined by Company in its sole discretion) shall be excluded or withheld from Publisher: (a) any activities that violate any provision of this Agreement; (b) any activity that is fraudulent, deceptive, or unfair; (c) any violation of any applicable law, regulation, or third-party right; (d) inflation of revenue, or number of impressions or clicks in connection with the Company Products, Advertising Materials, or Publisher Properties (including, without limitation, the use of incentives or the generation of impressions or clicks by use of automated programs); (e) any violation of section 8.4 below; or (f) any activities that in Company good faith belief would expose Company or its third party clients to civil or criminal liability or reputational harm. For the avoidance of doubt, Company may charge back payments previously made with respect to any activities determined to be an ineligible transaction hereunder (as reasonably determined by Company in its sole discretion).
8.3. Company’s reporting system shall be the exclusive tracking system for all purposes under this Agreement, including determining Net Revenue, amount of winning bids, and whether Advertising Materials are successfully displayed. The reports generated by Company’s reporting and tracking system shall be final, binding, and determinative for all purposes hereunder. Company may provide Publisher with an initial login and password to access Company’s publisher account management and reporting interface and/or to retrieve and implement Company Products. Publisher acknowledges that Company’s daily reporting and tracking may not reflect complete or final numbers, and may be adjusted by Company and finalized within a reasonable period after the close of each month. Publisher shall keep its account information current, complete and accurate, and maintain the confidentiality of its account and associated password. Publisher shall not share its login information with any third party and is responsible for any and all activity under Publisher's account.
8.4. For management purposes Company shall assign Publisher one or more unique identifiers (each a “Publisher ID”). Publisher IDs will be assigned based on various criteria, including direct versus indirect traffic supply, traffic form, and quality tier, to the extent these criteria apply to each Publisher. Additionally, unless Company provides explicit, written approval, Publisher will not change, reassign or tamper with its assigned Publisher ID(s) or SubID(s) (“SubIDs”) in any manner, including any change or alteration in the mapping of Publisher’s sources to each SubID. Additionally, Publisher will keep all assigned Publisher IDs and SubIDs persistent, meaning Publisher will not randomize or rotate any Publisher IDs or SubIDs. Unless Company provides explicit, written instructions to the contrary, Publisher shall accurately populate and pass all parameters including but not limited to keyword or category targeting to Company in every query request.
9.1. Each Party represents, warrants and covenants to the other that: (i) it is duly organized, validly existing and in good standing in its jurisdiction of incorporation or formation; and (ii) this Agreement has been duly executed and delivered by such Party and constitutes a legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms. Publisher further represents and warrants that entering into this Agreement and its activities under or related to this agreement, including the Publisher Properties, any content and materials provided thereby, the display of Advertising Materials, the Monetization Activities, and the processing of User Data in connection therewith, do not violate any third party right (including copyright, trademark, patent, publicity, privacy, or other proprietary right), any applicable law or regulation, or any agreement or other understanding between Publisher and any third party.
9.2. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, EACH PARTY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SECURITY, ACCURACY, ABSENCE OF VIRUSES OR OTHER MALICIOUS SOFTWARE, UNINTERRUPTED OR ERROR-FREE OPERATION, ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE, AND ANY REPRESENTATIONS OR WARRANTIES REGARDING THE AMOUNT OF PAYMENTS UNDER THE AGREEMENT. PUBLISHER ACKNOWLEDGES THAT COMPANY HAS NOT (AND COMPANY’S AGENTS HAVE NOT) MADE ANY REPRESENTATIONS OR WARRANTIES ABOUT THE COMPANY PRODUCTS, ADVERTISING MATERIALS, OR ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, EXCEPT FOR THOSE EXPRESSLY SET FORTH IN THIS SECTION 9. COMPANY’S PRODUCTS, ADVERTISING MATERIALS, TECHNOLOGY, SYSTEMS, AND NETWORK ARE PROVIDED STRICTLY ON AN “AS IS” BASIS.
11.1. Each Party agrees to defend, indemnify and hold harmless the other Party, its affiliates, and its and their respective members, managers, partners, officers, employees, contractors and agents, from and against any and all costs, losses, damages, judgments and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) incurred in connection with any third-party claim or demand that arises out of or relates to any actual or alleged breach of the indemnifying Party’s warranties in this Agreement. In addition, Publisher agrees to defend, indemnify and hold harmless Company and the other persons identified above from and against any and all Losses incurred in connection with any Publisher Properties (including any content, materials, and communications utilized by Publisher in connection therewith), or any acts or omissions of Publisher’s Syndication Partners.
11.2. The Party seeking indemnity pursuant to this Section 11 shall take reasonable measures to provide the other Party written notice within sixty (60) days of any claim, it being agreed that any failure to promptly provide notice shall not relieve a Party of any obligation to indemnify, except to the extent of material prejudice caused by such failure. The indemnifying Party shall, if it accepts the indemnification obligation, have the exclusive right to defend, compromise, and settle such claim, provided that: (a) if the indemnifying Party fails to promptly retain defense counsel that is reasonably acceptable to the indemnified party or otherwise fails to defend the claim, the indemnified Party may, at the expense of the indemnifying Party, retain counsel and defend such claim; and (b) any settlement that imposes any obligation on the indemnified Party shall be subject to the indemnified Party’s prior written consent, which shall not be unreasonably withheld.
12.1. Independent Contractors. The Parties are independent contractors and nothing contained in this Agreement shall be deemed to constitute either Party an agent, representative, partner, joint venturer or employee of the other Party for any purpose.
12.2. Governing Law; Venue. This Agreement is governed by the laws of the United States of America and the State of Delaware, without giving effect to the conflict of laws rules thereof. Each Party consents to the sole and exclusive jurisdiction of the federal and state courts located in Wilmington, DE, in all actions arising out of this Agreement. Company has the sole discretion of electing to adjudicate any disputes and actions arising out of this Agreement by: (i) bringing suit in federal or state court in Wilmington, Delaware; or (ii) binding arbitration administered by, in the event that Publisher is located within the United States, the Commercial Arbitration Rules and Expedited Procedures of the American Arbitration Association (“AAA”)(Rules E-1-E-10) or, in the event that Publisher is located outside the United States, the International Centre for Dispute Resolution (“ICDR”) in accordance with its International Arbitration Rules as modified below. The governing law will be that of the United States and the State of Delaware, without giving effect to the conflict of laws rules thereof. The place of arbitration and all hearings will be Wilmington, DE, USA. The arbitration will be conducted by a single arbitrator unaffiliated with either Party and be in English; all documents and other evidence not originally in the English language will be provided in both its original language and in an English translation.
12.4. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable or contrary to any law, the remaining provisions shall remain in full force and effect as if said provision never existed.
12.5. Waivers and Amendments. No waiver or amendment of any provision of this Agreement shall be effective unless such waiver or amendment is consented to by both Parties in a writing referencing this Agreement, except as otherwise set forth herein. No failure or delay by either Party in exercising any rights, power or remedy under this Agreement shall operate as a waiver of any such right, power, or remedy.
12.6. Force Majeure. Neither Party shall be responsible for delays or failures to perform its responsibilities under this Agreement due to causes beyond its reasonable control, such as riots, war, public disturbance, labor dispute, fire, explosion, storm, flood, acts of God or terrorism.
12.7. Assignment; Beneficiaries. Neither Party may assign its rights or obligations under this Agreement without the other Party’s prior written consent. However, Company may assign this Agreement to an affiliate or to any successor to substantially all of its assets or business. This Agreement shall be binding on each Party’s successors and permitted assigns. This Agreement is not intended to create any third-party beneficiary rights.
12.8. Publicity; Press Releases. Company may utilize Publisher’s name, logo and website(s) on partner lists and information material solely to identify such Publisher as a user of Company Products or Services. Notwithstanding the foregoing, neither Party will issue any publicity referring to this relationship without the prior written consent of the other Party.
12.9. Notices & Updates. Any notice to Publisher shall be effective upon Company's sending of an email to the address currently on file in the Dashboard, or posting of a notice in the Dashboard or on the Company’s platform website. Notices may also be sent by commercially recognized overnight courier, or by facsimile with confirmed receipt, to the addresses set forth in the Dashboard or such other addresses as the Parties may designate from time to time by notice satisfactory hereunder, and will be effective upon receipt. A copy of any notice to Company of a legal nature shall also be sent by certified first-class U.S. Mail, with return receipt requested, to the attention of Company’s General Counsel at the same address. Company may amend or replace this Agreement at any time, including the Data Processing Addendum, and will notify Publisher of material changes by posting a notice in the Dashboard or on the Company’s platform website and a link to the then-current version of this Agreement, or by other suitable means. Such amendment or replacement of this Agreement will become effective immediately upon posting to the Dashboard, the Company’s platform website, or other Company website, and Publisher's use of the Dashboard and Company Products or Services after that date will constitute acceptance of the updated Agreement. Publisher's sole and exclusive remedy if it objects to the amended or new Agreement is to terminate its use of the Company Services.
12.10. Non-Disparagement. During the term of this Agreement and thereafter, neither Publisher nor any affiliated entity, directly or indirectly, may take any action that is intended, or would reasonably be expected, to disparage or harm the reputation or business of Company or any of its affiliates, directors, officers, agents, or employees.
12.11 Interpretation. No provision of this Agreement may be interpreted against a Party because that Party or its legal representative drafted the provision. All headings are included for convenience only and shall not be considered in the construction or interpretation of this Agreement.
12.12 Export Compliance. Notwithstanding any other provision herein to the contrary, Publisher shall not (or permit any third party to) import, export or re-export, directly or indirectly, the Company Products or any related information to any country to which such import, export or re-export is restricted or prohibited, without first obtaining all necessary governmental licenses and approvals.