This Publisher Agreement (“Agreement”) shall govern the relationship between ClickDealer Ltd. a company duly incorporated under the laws of BVI ("MobAir") and any and all Publishers (“the Publisher”) who registered with the Website to enjoy MobAir’s services.
WHEREAS, MobAir provides the Publisher with the services specified herein, without limitation, through its website situated at http://MobAir.com/ or in any other manner which is in its sole discretion proper for such services.
WHEREAS, the Publisher is entitled to remuneration from MobAir for the valid and qualified Traffic which is provided by the Publisher and delivered to the Advertiser involving MobAir’s services and which is in the full compliance with this Agreement and IO.
NOW THEREFORE, the Publisher’s use of and access to the Website is considered its consent to be bound by this Agreement and any additional rules and guidelines that MobAir may post on the Website. If the Publisher does not agree to be bound by this Agreement, then it must not use the Website.
PLEASE NOTE that MobAir may change this Agreement at any time and without any notice to the Publisher. MobAir recommend the Publisher to visit periodically the Website to review this Agreement. By using the Website after MobAir posted any changes, the Publisher agrees to accept those changes, whether or not it actually reviewed them.
1.1 Advertiser - individuals or companies who need to advertise their products online and who registered with the Website to enjoy MobAir’s services.
1.2. Advertising Material - any graphic file and/or any and all accompanying printed, handwritten or electronically transferred information supplied by MobAir to the Publisher to be displayed for advertising purposes.
1.3. Campaign - cumulative action that focused on advertising of Advertiser’s products performing through the Website.
1.4. CPA (Cost-Per-Action) - a kind of Traffic which is achieved by a user performing a pre-determined action.
1.5. CPC (Cost-Per-Click) - a kind of Traffic which is achieved by a user clicking on a given Advertising Material and thereby being directed to a selected webpage.
1.6. CPL (Cost-Per-Lead) - a kind of Traffic where the advertiser pays for an explicit sign-up from a user interested in an Advertiser's offer.
1.7. CPM (Cost-Per-Mile) - a kind of Traffic which is achieved by one thousand displays of an Advertising Material.
1.8. IO (Insertion Order) - means a document that specifies the scope and essential conditions of a Campaign. It is hereby acknowledged between both the parties that the IO (if any) is an integral part of this Agreement and they collectively form and constitute an entire document.
1.9. Media - collective name for websites and/or mobile websites and/or mobile applications which are directly or indirectly owed and/or operates by the Publisher for the purposes of placing Advertising Material.
1.10. Publisher means individuals or companies who place the third parties’ advertisement on Media and who registered with the Website to enjoy MobAir’s services.
1.11. Traffic means the nominal measure of internet users who are the subject to an Advertiser’s Campaign.
2.1. Subject to this Agreement MobAir hereby grants the Publisher a limited, fully revocable, non-exclusive, non-transferable, non-assignable, non-sub-licensable, royalty-free license to use Advertising Material which is offered for advertising purposes on the Website.
2.2. The Publisher hereby agrees to place an Advertising Material exclusively on Media which registered with the Publisher’s account on the Website. The Publisher may add, edit and remove any website from its account at any time. If the Publisher places the Advertising Material on a website not previously registered and validated with the Website MobAir cannot guarantees the Traffic from such website will be the subject to remuneration.
2.3. To be validated by MobAir any and all Media must (1) be content-based, not simply a list of links or advertisements and have a purpose other than the purposes related to this Agreement; (2) not offer incentives to users to click on Advertising Materials including but not limited to awarding them cash, points, prizes, contest entries or similar offers; (3) be fully functional at all levels and never display a message on any page similar to “under construction”, except at the time of maintenance or under the reason that is beyond the Publisher’s reasonable control (third party actions, Force Majeure etc.); (4) not infringe on intellectual property or harm personal rights; (5) not contain: (a) racial, ethnic, political, or hate-mongering or otherwise objectionable content; (b) investment, money-making opportunities or advice not permitted under law; (c) material that defames, abuses, or threatens physical harm to others; (d) promotion of illegal substances or activities such as illegal online gambling, how to build a bomb, counterfeiting money; (e) software pirating; (f) hacking or phreaking; (g) any illegal activity whatsoever; or (6) spoofing, redirecting, or trafficking from adult-related websites.
2.4. MobAir reserves the right, at its sole discretion and without liability, to reject, omit or exclude any Publisher for any reason at any time with or without notice to the Publisher and regardless of whether such Publisher was previously accepted.
2.5. MobAir reserves the right at any time to reject, suspend or cancel the registration of any Publisher’s Media which in the opinion and/or discretion of MobAir is not deemed suitable and appropriate for any reason. Without prejudice to the generality of the foregoing MobAir reserves the right reject, suspend or cancel the registration of any Publisher’s website which in the opinion of MobAir may expose MobAir into criminal and/or civil liability and/or any other form of liability as well as is deemed to be offensive or objectionable.
3.1. The Publisher will be issued a unique username and password to access the Website, neither of which may be used by any person other than the Publisher.
3.2. The Publisher may not transfer its account to anyone without explicit written permission of MobAir and it may not use anyone else’s account or password at any time without the express permission and consent of MobAir and the holder of that account. MobAir cannot and will not be liable for any loss or damage arising from the Publisher’s failure to comply with these obligations. The Publisher will be held liable for losses due to someone else using its account or password as a result of it failing to keep its account information secure and confidential.
3.3. The Publisher may engage Sub-Publishers to distribute Advertising Material in accordance with the Campaign requirements, provided that (1) the Publisher has written approval from MobAir to contract Sub-Publishers; (2) a verifiable name, address and telephone number for each Sub-Publisher is delivered to MobAir immediately upon request; (3) the proposed Sub-Publisher agrees to abide by this Agreement and MobAir regulations as amended from time to time; and (4) at no time will the Publisher engage a Sub-Publisher who, in the opinion of MobAir is likely to bring the reputation or standing of MobAir into disrepute or is otherwise unsuitable.
3.4. Any breach by a Sub-Publisher of this Agreement will be deemed to be a breach of this Agreement by the Publisher.
4.1. The Publisher will be paid an agreed upon remuneration for qualified, valid and accepted Traffic which are in the full compliance with this Agreement. A qualified, valid Traffic shall not include that which does not meet quality requirement as stipulated herein, are generated by unlawful and/or fraudulent means, or otherwise violate the provisions of the Agreement. The final determination of whether Traffic is qualified and valid shall be made at the sole discretion of MobAir.
4.2. MobAir will pay the Publisher monthly or bi-monthly (depending on volume of business) unless otherwise mutually agreed between parties in writing. The Publisher will be paid in each payment period only if revenue exceeds minimum threshold of US$ 500 (Five Hundred US Dollars) is earned. All amounts which are not paid to the Publisher in any period will be payable when accrued revenue exceeds minimum threshold. In no case any amounts on the Publisher’s account are subject to interest.
4.3. MobAir reserves the right to stop any payments to the Publisher in the case of suspicion for Traffic quality for a period of investigation.
4.4. The Publisher agrees to keep MobAir informed on its payment details and MobAir has no liability for any loss, damage, delay and/or inconvenience related to payment details except they are directly and willfully caused by MobAir. The Publisher acknowledges and agrees that any credit card and related billing and payment information that the Publisher provides to MobAir may be shared with companies who work on our behalf such as payment processors and/or credit agencies solely for the purpose of checking credit and/or effecting payment MobAir and serving customers account. MobAir shall not be liable for any use or disclosure of such information by such third party.
4.5. Each party shall bare its own taxes, duties and charges imposed or that may be imposed by any applicable governmental agency in connection with the Agreement and each party’s performance hereunder.
5.1. Traffic will be accepted and considered qualified and valid if it doesn’t arise from, without limitation (1) automated and/or fraudulent clicks on any Advertising Materials; (2) incentivizing any person to, or engaging in any activity that is likely to inflate the number of clicks on any Advertising Materials; (3) using any practice of distribution that contains or considered as a virus, worm, malware, spyware, ransomware, crapware, trojan horse, or any other computer code, files or programs designed to interrupt, hijack, destroy or limit the functionality of any computer software, hardware, network or telecommunications equipment.
5.2. All Traffic which doesn’t meet the aforementioned quality will be irretrievably forfeited without any reimbursement to the Publisher.
6.1. Payments will be calculated and tracked solely based upon MobAir's records. During the term hereof, MobAir will provide the Publisher with access to reports through the Website or by email or in any other manner which is in its sole discretion proper for such purpose. The Publisher acknowledge that reports might be based on third party’s information and are subjected to such third party adjustments, thus occasion delays and adjustments may occur and are out of MobAir's control and responsibility. All reports may be updated and adjusted up to 1 (one) month back. MobAir is not liable for any unavailability or inaccuracy, temporary or otherwise, of the reporting system.
6.2. If the Publisher disputes the information detailed in a report, it will provide MobAir with a written notice that will specify the reasons for such dispute, by no later than 5 (five) days as of report was appeared on the Website or sent to the Publisher via email. Following receipt of a dispute notice, the parties will co-operate, in good faith, to reach a solution to such dispute. MobAir may withhold payment of any disputed amounts until the dispute is resolved. The Publisher acknowledges and agrees that in the event it did not submit a dispute notice the report and payment amount shall be deemed final and non-disputable.
7.1. MobAir hereby represents, acknowledges and warrants that (1) it has the legal capacity and authority to enter into and be bound by the present Agreement; (2) it has the full legal authority to use all its property including the Website; (3) its services will perform substantially and materially in accordance with this Agreement and under normal use and circumstances, and for the purpose intended.
7.2. Except for the express warranties set forth above and to the extent permitted by law MobAir expressly disclaims all other warranties of any kind with respect to the services, whether express or implied, including without limitation any warranties for merchantability, fitness for a particular purpose, that the services will be uninterrupted, completely secure and/or free of the Website errors.
7.3. The Website may contain links to other independent third-party site and/or application and such linked sites and/or application are not under MobAir’s control, and MobAir is not responsible for and does not endorse the content of such sites, including any information or materials contained on such sites and/or application. The Publisher will need to make its own independent judgment regarding its interaction with these sites and/or application.
8.1. The Publisher hereby represents, acknowledges and warrants that (1) it has the legal capacity and authority to enter into and be bound by the present Agreement; (2) it has the full legal authority to use and operate all Media registered with its account on the Website; (3) it has the full legal authority to use content of the aforementioned Media; and (4) such content is not and will not in any way: (a) infringe any third party copyright, trademark, trade name trade secret or other form of intellectual property; (b) violate any applicable laws rules and/or regulations; (c) contain false or deceptive code including but not limited to any virus, Trojan-horse or other self-executing program.
8.2. The Publisher hereby accepts that if it is in breach of any of the above representations, acknowledgements and warranties, then MobAir has the right to immediately terminate the present Agreement and take any other necessary step and/or action deemed appropriate.
8.3. The Publisher covenants, agrees and undertakes that (a) it will, at all times, comply with all laws applicable in the jurisdiction where the Publisher is situated or otherwise conducts its business; (b) it will, at all times, comply with the terms of this Agreement; (c) it will at all times comply with legal provisions pertaining to online advertising and spam.
9.1. This Agreement has been entered into for an indefinite period of time until terminated by either party as stated bellow. If MobAir has not rendered the services for any period within duration hereof this cannot be considered a breach of the Agreement and result in any losses or damages to the Publisher.
9.2. Either party may terminate this agreement and cancel the campaigns providing a reason for such termination, by giving a two (2) business days’ written notice to the other party except otherwise hasn’t been agreed in the IO.
9.3. MobAir might also immediately terminate this Agreement in the cases where MobAir considers that the Publisher has been in breach of any of the terms of this Agreement or if it is considered that the Publisher has acted and/or the Campaign has been managed in a way which (1) is in contravention and/or violation of applicable laws, by-laws, rules and regulations; (2) is defamatory, obscene, pornographic, misleading, deceptive, fraudulent or otherwise inappropriate; (3) might harm the good reputation of MobAir, its directors, employees, Advertisers or any other person and/or body for which MobAir is in law responsible; (d) occasions losses or the risk of loss for MobAir or any third party; or (e) fails to comply with this Agreement and such breach of contract is material.
9.4. This Agreement will be automatically terminated when the Publishers’s account has not been in use for more than three (3) months.
10.1. During the term of this Agreement either party (“Receiving Party”) may have access to information of the other party (“Disclosing Party”) whether or not in tangible form, of a private, secret, proprietary or confidential nature, or treated by the Disclosing Party as such (including by marking such information as confidential or by informing the Receiving Party in writing of such disclosure of Confidential Information), including but not limited to: (1) any Advertising Material provided by a Party under this Agreement, including but not limited to Advertising Material; (2) any reports or invoices delivered by a Disclosing Party under this Agreement; (3) information relating to a Disclosing Party’s business or financial affairs; (4) marketing strategies of a Disclosing Party; (4) lists of customers, suppliers and service providers of a Disclosing Party; or (5) any information of any Third Party as to which the Disclosing Party owes a duty of confidentiality.
10.2. Each party agrees: (1) not to disclose a disclosing party’s Confidential Information to any Third Parties other than to its shareholders, directors, officers, partners employees, advisors or consultants (collectively, the “Representatives”) on a “need to know” basis only and provided that such Representatives are bound by written agreement to comply with the confidentiality obligations contained herein; (2) not to use any of the Disclosing party’s Confidential Information for any purposes except to carry out its rights and responsibilities under this Agreement; and (3) to keep the disclosing party’s Confidential Information confidential using at least the same degree of care it uses to protect its own confidential information, which shall in any event not be less than a reasonable degree of care.
10.3. The Parties agree that the content and existence of this Agreement and the nature of the relationship between the parties shall not be disclosed without the mutual written consent of both parties prior to such disclosure. 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.
10.4. The confidentiality non-disclosure provisions shall survive this Agreement for a period of 3 (three) years.
11.1. During the term of this Agreement and for a period of six (6) months thereafter, the Publisher will not seek, in any way, to undermine the goodwill of MobAir, and in particular, the Publisher will not, directly or indirectly: (1) solicit or entice or attempt to solicit or entice, work away from MobAir; (2) solicit or entice or attempt to solicit or entice any of the employees of MobAir to enter into employment service with the Publisher or a competitor of MobAir; or (3) directly or indirectly enter into any agreement or contract, written or otherwise, with any Ardvertiser or otherwise provide services to any third party for the ultimate benefit of a Ardvertiser which might, in the opinion of MobAir, compete with any services provided by MobAir to that Ardvertiser.
12.1. During the term of this Agreement and for a period of eighteen (18) months thereafter, regardless of the reason for termination, the Publisher agrees that it will not knowingly, directly or indirectly, solicit, engage, contract, license, or work with any client whose offer it or any of its Sub-Publishers marketed hereunder without the prior written approval by an authorized party at MobAir. The Publisher agrees and understands that MobAir has incurred significant expense forming MobAir 's affiliate network and in providing services for the benefit of its Advertisers, and the Publisher agrees and understands that in the event of a breach by it of this section, the Publisher SHALL pay MobAir as liquidated damages an amount equal to MobAir 's profits for the preceding EIGHTEEN (18) months generated by the campaigns for such Advertiser. The liquidated damage remedies provided herein in this section shall not preclude MobAir from seeking injunctive relief.
13.1. All Website content as text, graphics, user interface, visual interfaces, photographs, trademarks, logos, artwork and computer code, including but not limited to the design, structure, selection, coordination, expression and arrangement of such content is owned, controlled or licensed by MobAir, and is protected by trade dress, copyright and trademark laws, and various other intellectual property rights and unfair competition laws.
13.2. No part and no content may be copied, reproduced, republished, posted, publicly displayed, encoded, translated, transmitted or distributed in any way to any other computer, server, website or other medium for publication or distribution or for any commercial enterprise, without MobAir’s express prior written consent.
13.3. The Publisher may use information about the Website and our services provided that it (1) not removes any proprietary notice language in all copies of such documents, (2) uses such information only for personal, non-commercial informational purpose and does not copy or post such information on any networked computer or broadcast it in any media, (3) makes no modifications to any such information, and (4) does not make any representations or warranties related to MobAir.
14.1. The Publisher agrees to indemnify and hold harmless MobAir, its Advertisers, subsidiaries, successors and assigns from any claim, action, judgment, or liability, threatened or adjudicated, of any kind arising out of or in connection with any breach by the Publisher of any representation, warranty or agreement and the Publisher shall promptly reimburse MobAir for any sums, costs or expenses (including, without limitation, reasonable attorney's fees and expenses, settlement costs and disbursements) incurred by MobAir in connection therewith.
15.1. The Publisher agrees that MobAir shall not be liable for (1) any delays in the delivery and/or non?delivery of any Advertising Material and/or Traffic; (2) anything affecting the delivering of Traffic in the event of an act of God, action by any government entity, network difficulties, electronic malfunction or any condition beyond the control of MobAir; (3) consequential damages of any nature whatsoever; and/or (4) errors or omissions in the Advertising Material as it is exhibited to the public.
15.2 IN NO EVENT SHALL MobAir BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. IN NO EVENT WILL MobAir’S LIABILITY HEREUNDER EXCEED THE PAYMENTS MADE TO THE PUBLISHER DURING THE PRECEDING 6 (SIX) MONTHS.
16.3. The parties agree that this Agreement will be construed in all respects in accordance with the laws of England and Wales applicable to agreements entered into and to be wholly performed therein, and, in the event of any dispute related to the subject matter of this Agreement, the parties hereto agree to submit to the exclusive jurisdiction of the courts located in England.
16.4. In the event of any dispute arising out of or relating to this Agreement, the Publisher’s sole remedy shall be an action for damages at law. The Publisher expressly waives any and all equitable rights they may have hereunder, including without limitation any right to enjoin, rescind, terminate or otherwise interfere with MobAir's delivery, placement and exhibition of any Advertising Material and Traffic whatsoever.
16.5. If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, MobAir shall be entitled to reasonable attorney’s fees, costs and expenses, in addition to any other relief to which it may be entitled.
17.1 Any notice or other communication given or made in order to comply or in connection with the matters contemplated by this Agreement shall be in writing and shall be delivered by e-mail to the address of the parties set forth in the IO and shall be deemed to have been duly given or made upon successful transmission of the email unless otherwise mutually agreed by parties.
17.2 Neither party may assign this Agreement, in whole or in part, without the other party’s prior written consent, except that either party may assign this Agreement without consent of the other in the case of a merger, reorganization, acquisition, consolidation, or sale of all, or substantially all, of its assets. Any attempt to assign this Agreement other than as permitted herein will be null and void. Without limiting the foregoing, this Agreement will inure to the benefit of and bind the parties’ respective successors and permitted assigns.
17.3 If any term or provision of this Agreement is declared illegal, invalid or unenforceable, the parties intend that the remainder of this Agreement shall not be affected thereby and that, in lieu of any such stricken provision, there shall be added as a part hereof, a substitute provision as similar in substance to the illegal, invalid or unenforceable term or provision as may be possible.
17.4 Nothing contained in this Agreement shall be construed to constitute a partnership or joint venture or any other fiduciary relationship. Neither party is the employee, agent, partner or joint venturer of the other, it being understood and agreed that the relationship of the parties is that of independent contractors.
17.5 No waiver by either party of any default hereunder shall constitute a waiver by such party of any subsequent default, whether such subsequent default is similar in nature to any previously waived default. All remedies under this Agreement or under law or otherwise shall be cumulative and not alternative.
17.6 This Agreement is intended by the parties hereto as a complete and final expression of their agreement and understanding with respect to the subject matter hereof and supersede all previous agreements and understandings, whether oral or written, between the parties hereto with respect to the subject matter hereof.