PubWise Terms of Service
PubWise (“we”, “us”, “PubWise”) is a full-service Header Bidding and reporting services provider for websites and publishers. This Agreement sets forth the terms between you (“Publisher”) and Pubwise. By accessing and using the Services, you agree to comply with and be bound by this Agreement unless otherwise specified in a separate document signed by both parties. Do not use the services if you disagree with any of the terms and conditions.
“Advertisement” or “Ad” means digital advertising creative, including text, graphics, rich media, video and other companion advertisements and other advertising materials.
“Ad impression(s)” means an instance in which an Ad is served to, and received by, a unique visitor on a Publisher site.
“PubWise Analytics Platform” means a data analytics platform that can be used independent of the PubWise Monetization Service.
“Code” means the software code that we provide to you for placement on approved sites.
“Content” means any articles, written entries, postings, messages, opinions, text, files, links, images, photos, video, sounds, works of authorship, feedback or other materials available on any of your Properties.
“PubWise Monetization Service” means any PubWise services in addition to and including the PubWise Analytics Platform.
“Property(ies)” means Publishers URL(s) and all subdomains of that URL, including any and all webpages appearing at such URL and subdomains, all mobile versions of the same, all enhanced versions of the same, and all future means of communication that utilize that URL or such subdomains of that URL or mobile applications.
“Service(s)” means any of the buying and selling tools, technology, services and partners provided by PubWise.
You may request to add any of your websites, mobile applications, blogs and/or other properties to the Services. We may, in our discretion, reject your request and/or remove any of your Properties from the Services at any time. You authorize us to (i) serve advertisements from advertisers on your Property and (ii) collect, access, index and copy your Content, and to collect site, user and first party data related to your Properties (collectively, the "Publisher Data"). The Publisher retains ownership of the Publisher Data. Any Publisher Data that we aggregate with other data (including our own data and third party data relating to your Properties) for any purpose shall be referred to herein as "PubWise Data”.
Publisher is solely responsible for providing PubWise with any system access required to fulfill its obligations in this agreement, including API credentials for all ad servers with which they interact. Publisher agrees to provide PubWise with a dedicated and unique login or other mutually agreed upon means to allow PubWise’s fulfillment of its obligations in this agreement.
Publisher’s use of the DFP Services (including hyper-local targeting) is subject to applicable Google Platforms Program Policies.
3. Service Specific Terms
PubWise is comprised of two related, but distinct services. They are the PubWise Analytics Platform and the PubWise Monetization Service. Each service has terms specific to it. They are outlined below.
3.1 Pubwise Analytics Platform
These specific terms apply when using only the PubWise Analytics Platform.
3.1a. License; Publicity.
(i). We grant you a license to include on the applicable Properties the software code we provide to you required for us to provide the Services.
(ii) The Services and all other materials and information provided to Publisher under this Agreement are owned by PubWise, and/or its third party suppliers and licensors.
(iii) Each party shall have the right to refer to and promote its business relationship with the other party in a mutually-agreed corporate press release or otherwise.
(iv) PubWise may use the Publisher name and logo on promotional materials.
3.1b. Data Usage
PubWise uses aggregated analytics data to provide optimization and recommendations to customers. Publishers using only the PubWise Analytics Platform can opt out of their data being aggregated that includes personally identifiable information or information that identifies or would reasonably be expected to identify Publisher or its websites.
3.2. PubWise Monetization Service
These specific terms apply only if using the PubWise Monetization Service.
3.2a. License; Publicity.
(i) We grant you a license to include on the applicable Properties the software code we provide to you required for us to provide the Services.
(ii) The Services and all other materials and information provided by Publisher under this Agreement are owned by PubWise, and/or its third party suppliers and licensors.
(iii) Publisher grants PubWise the non-exclusive, worldwide right to represent the Property to Advertisers, negotiate the sale of Advertisements on the Property with Advertisers and sell all Advertisement inventory on the Property.
(iv) Each party shall have the right to refer to and promote its business relationship with the other party in a mutually-agreed corporate press release or otherwise.
(v) PubWise may use the Publisher name and logo on promotional materials.
4. Payments for PubWise Monetization Service.
a. Payment. PubWise will pay Publisher, in accordance with this Agreement the applicable amounts as described below. The revenue will be collected by PubWise on the sale of Ad Impressions through the PubWise platform.
b. Payment terms. We pay on the 10th of every month based on the amount collected within the past 60 days. We will pay subject to our prior receipt of valid payment and tax information. Notwithstanding the foregoing, if the amount accrued for the applicable month is less than $20 (USD), payment will be deferred until the month in which the cumulative balance owed to you exceeds $20 (USD).
c. Impression and Payment Calculations. All payments under the Agreement will be based upon PubWise measurements. We will have no obligation to make payments for any amounts that we and our partners, in our sole discretion, deem to have been generated from any Invalid traffic (as defined below). We have the right to adjust any payments based on finalized results. If any adjustment occurs, the adjustment will be made within 90 days from the the end of the month in which the Ad Impressions were served. Any disputes in relation to the amount received must be made by the Publisher within 30 days of the date of the monies received or all such claims shall be waived.
d. “Invalid Traffic” means engaging in any of the following: (a) Objectionable Activity as defined in section 7; (b) clicking on your own Ads or using any means (automated or manual) to inflate impressions and/or clicks artificially or otherwise generate activity not driven by bona fide human intent; (c) offering a user any inducement of any kind to generate clicks or impressions; (d) installing ad code on or within 404/error message pages, pop-over/pop-under windows, downloadable applications, software, chat windows or email (e) obscuring an advertisement or any portion thereof with other content, advertising or navigational elements. The parties will use commercially reasonable efforts to collaborate on the identification and elimination of any Invalid traffic.
5. Use of the Services.
Publisher and its third party ad serving providers have the sole and exclusive right to use all data derived from Publisher’s use of the Services, for any purpose related to Publisher’s business; provided that PubWise and/or its third party ad server (such as DoubleClick) may use and disclose the data derived from Publisher’s use of the Services (including data collected from visitors to the Website) solely (i) as aggregate Service statistics, which will not include personally identifiable information or information that identifies or would reasonably be expected to identify Publisher or its websites, (ii) to provide Services and enforce its rights under this Agreement, and (iii) if and as required by court order, law or governmental or regulatory agency (after, if permitted, giving reasonable notice to Publisher and using commercially reasonable efforts to provide Publisher with the opportunity to seek a protective order or the equivalent (at Publisher’s expense)). PubWise agrees that Publisher’s non-aggregated data will not be used or disclosed to any third party by PubWise or its third party ad server (except as otherwise expressly permitted by this Agreement) without Publisher’s written consent. Publisher will not knowingly cause or permit any personally identifiable information to be provided to PubWise. Publishers using only the PubWise Analytics Platform have the choice to opt of their data being aggregated per Section 3.1b.
7. Service Level Agreement (SLA)
This SLA applies separately to each of your Properties. PubWise will use commercially reasonable efforts to make the PubWise API and analytics collection available with a yearly uptime percentage of at least 99.9%. A yearly uptime percentage of 99.9% means we guarantee you will experience no more than 525.6 minutes per year of unavailability. PubWise will use all commercially best efforts to make the display reporting available at all times.
You will not (i) use the Services or the PubWise Data except as expressly authorized herein; (ii) use the PubWise Data for any purpose other than internal analytics purposes, (iii) copy, reproduce, modify, distribute, damage, interfere with, disassemble, decompile, reverse engineer or create derivative works of the Services or the PubWise Data; (iv) breach, disable, tamper with or interfere with the proper working of the Services or the PubWise Data or develop or use (or attempt) any workaround for any security measure related to the Services or the PubWise Data; or (v) place any Content on any of your Properties that (a) infringes or misappropriates a third party's intellectual property or other proprietary rights, (b)breaches a third party's rights or privacy or publicity or (c)contains or promotes Objectionable Activity (as defined below). "Objectionable Activity" means any content or activity that is (v) pornographic, illegal, fraudulent, false, deceptive, misleading, libelous, defamatory or threatening, (w) racist, hate speech or bullying, (x) adware, malware, spyware or any other malicious code or drive-by download applications (y) introducing invalid clicks as defined in 6d. Including, but not limited to auto refreshing or placing the code on non-approved sites and/or (z)"spam," mail fraud, pyramid schemes, investment opportunities, or advice not permitted by law.
a. Scope. “Confidential Information” means all nonpublic information disclosed by or for a party in relation to this Agreement, including any communications related to the PubWise Service; any PubWise software, technology, programming, specifications, materials, guidelines and documentation relating to the PubWise Service including ad tag code; and any information that a reasonable person familiar with the Internet and online advertising would consider proprietary and confidential. Confidential Information does not include any information the party receiving the information (“Receiving Party”) can demonstrate (through legally sufficient evidence) (a) was rightfully within its possession without restriction on disclosure prior to it being furnished to it by the other party; (b) is now or hereafter comes into the public domain through no act or failure to act on the part of Receiving Party; (c) is rightfully disclosed or made available to Receiving Party on a non-confidential basis by a third party having the right to disclose it without an obligation of confidentiality; (d) is independently developed by Receiving Party without reference to any Confidential Information or the participation of any person who has had access to the Confidential Information. Any summaries, compilations or extracts of Confidential Information prepared by Receiving Party shall be deemed Confidential Information and shall be subject to the terms of this Agreement. All Confidential Information furnished under this Agreement shall remain the property of the disclosing party and shall be returned by that party by Receiving Party immediately upon request.
b. Confidentiality. The Receiving Party may only disclose Confidential Information to that party’s employees, attorneys, accountants and auditors only to the extent that such persons have a need to know such information and only insofar as such persons are bound by a nondisclosure agreement including the same conditions of confidence and non-use required by this Agreement. Receiving Party will not use any part of the Confidential Information for any purpose other than for the purposes established in this Agreement. As part of this obligation, Publisher agrees that Publisher shall not derive any commercial benefit, whether direct or indirect, from the Confidential Information, except to the extent established in this Agreement or if such benefit may be derived from a separate written agreement between PubWise and Publisher. Receiving Party shall promptly notify the other party of any unauthorized disclosure or use of Confidential Information, and shall provide all reasonable assistance to prevent or stop such disclosure or use, and/or to obtain compensation for such disclosure or use. Receiving Party shall not reverse engineer, decompile, copy or export any Confidential Information. Receiving Party shall take reasonable precautions to protect the Confidential Information including, without limitation, all precautions that the Receiving Party employs with respect to its own confidential information. Each party shall be responsible for any breach of confidentiality by its employees, agents and contractors. Neither party may disclose the terms of this Agreement without the prior consent of the other party.
c. Compelled Disclosure. Receiving Party may disclose Confidential Information to the extent necessary to comply with any applicable law, order, regulation, ruling, subpoena or order of a governmental authority or tribunal with competent jurisdiction; provided, however, that Receiving Party shall notify the other party of all such requests or requirements prior to disclosure so that party may seek appropriate protection or limitation of the disclosure, and if permissible by law, Receiving Party shall provide reasonable cooperation to PubWise and its legal counsel, in seeking such protection or limitation of the disclosure.
11. Intellectual Property Rights
Each Party agrees that it will not acquire right, title, or interest in or to the other Party’s intellectual property rights except as set forth in this agreement. The PubWise name and logo, and all related product and service names, design marks and slogans are the trademarks or registered trademarks of PubWise. All other product and service marks contained herein are the trademarks of their respective owners. Publisher may not use any PubWise trademarks or logos without the prior written consent of PubWise.
12. Representation and Warranties.
Each of Publisher and PubWise represent and warrant to the other party that (i) it holds all rights necessary to perform its obligations hereunder and (ii) all information provided by it to the other party is complete, correct and current. You further represent and warrant that (a) you own or are otherwise authorized to use, and are solely responsible for, the Content posted on any of your Properties and (b) you hold, and hereby grant to us, all rights necessary for us to perform our obligations hereunder.
Each party will indemnify, defend and hold harmless the other party and its agents, affiliates and licensors from any and all losses, claims, damages, liabilities and expenses arising from third-party claims or any government or industry investigation, including reasonable costs of investigation and reasonable attorneys' fees ("Claims") arising out of or related to breaches of this Agreement or allegations thereof.
14. Changes to the Services; Changes to the Agreement.
We are constantly changing and improving the Services. We may add or remove functionalities or features of the Services at any time, and we may suspend or stop a Service altogether. We may modify this Agreement at any time, and will post any modifications to this Agreement within the login at www.PubWise.io. The changes will be effective immediately. If you don't agree to any modified terms in the Agreement, you must terminate the agreement and stop using the Services within 30 days.
15. Term; Termination.
a. Term. The term of this Agreement shall begin on the Effective Date and continue for a period of one year from the Effective Date (the “Initial Term”), and shall automatically renew for successive one (1) year terms (each a “Renewal Term”, and together with the Initial Term, collectively hereinafter referred to as the “Term”), unless and until terminated in accordance with this Agreement.
b. Termination for Convenience. Either party may terminate this Agreement for any reason by
providing the other party with thirty (30) days prior written notice.
c. Termination Rights. In addition to any other rights of termination provided for herein, this Agreement may be immediately terminated by a party if:
(1) the other party commits a material breach of its obligations hereunder that is not cured within ten (10) days after written notice thereof from the non-breaching party, or
(2) a petition in bankruptcy or other insolvency proceeding is filed by or against the other party, or if an application is made for the appointment of a receiver for the other party of its property, or if the other party makes an assignment for the benefit of creditors, is unable to pay its debts regularly as they become due, or ceases carrying on business in the ordinary course.
d. Effects of Termination and Survival. Upon termination or expiration of this Agreement, all
rights granted herein will revert to the granting party and all licenses will terminate, and Publisher will make no further use of PubWise, or the Services. Except as otherwise provided herein, any termination or expiration of this Agreement shall be without prejudice to any other
rights or remedies a party may be entitled to under this Agreement or at law or in equity and shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision of this Agreement which is expressly or by implication intended to come into or continue in force on or after such termination or expiration. Upon termination or expiration of this Agreement, any ads sold prior to such termination or expiration will continue to be served for their remaining duration (subject to the terms of this Agreement).
e. Return/Destruction of Confidential Information. Within thirty (30) days of any termination or expiration of this Agreement, each party will return to the other party or destroy all Confidential Information of the other party.
16. Assignment. Publisher may not transfer or assign this Agreement or its obligations under this Agreement, in whole or in part, without the prior written consent of PubWise (which consent will not be unreasonably delayed or withheld), except that a party may assign all of its rights and obligations under this Agreement to a successor (whether by sale, acquisition, merger, or operation of law). In addition, Publisher shall be permitted to assign this Agreement to an affiliate of Publisher as part of an internal reorganization. This Agreement will be binding upon and inure to the benefit of the parties and their respective permitted successors and permitted assigns. Any assignment in violation of this Section shall be void.
THE SERVICES AND THE PUBWISE DATA ARE PROVIDED "AS-IS" AND AS AVAILABLE. TO THE EXTENT PERMITTED BY APPLICABLE LAW, WE EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE TERMS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT.
18. LIMITATION ON LIABILITY.
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER OR ANY THIRD PARTY FOR (I) ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR (II) ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), IN EXCESS OF THE FEES RECEIVED BY THE PUBLISHER WITHIN THE PREVIOUS 12 MONTHS.
This Agreement shall be governed by and construed in accordance with the laws of State of Georgia and the federal laws of the United States applicable therein. For the purpose of all legal proceedings, this Agreement will be deemed to have been performed in the state of Georgia and the courts of the State of Georgia will have jurisdiction to entertain any action arising under this Agreement. The Parties to this Agreement each hereby attorn to the jurisdiction of the courts of the State of Georgia in accordance with the foregoing and waive any objection to venue or any claim of inconvenient forum.
21. Force Majeure.
Neither party shall be liable to the other party for any delay or failure in performance under this Agreement arising out of a cause beyond its control and without its fault or negligence. Such causes may include, but are not limited to fires, floods, earthquakes, strikes, unavailability of necessary utilities, blackouts, acts of God, acts of regulatory agencies, or national disasters.