The CrossChannel Network. CrossChannel has developed and maintains a network of registered advertisers and publishers, and related technology and software to display customized advertisements and links from advertisers (“Advertisers”) in mobile applications of selected publishers (“Publishers”) (collectively, the “Network”). The Network allows Advertisers to display content, including written content, images, graphics, URLs and other materials (the “Ads”) on the applications of selected Publishers. The Network is used to manage the delivery of an Ad (an “Ad Campaign”) in the mobile applications of participating Publishers (“Publisher Applications”).
Modification of the Network. CrossChannel reserves the right to improve, modify, remove, suspend or discontinue, temporarily or permanently, in whole or in part, any information, content, services, products or features appearing on and/or offered through the Network and the Network application at any time in CrossChannel#8217;s sole discretion without notice and without liability. CrossChannel is under no obligation to remove any content and we do so at our sole discretion. CrossChannel may discontinue or revise any or all aspects of and/or offered through the Network in our sole discretion and without prior notice.
Acceptance. You agree that CrossChannel shall not be liable to You or to any third party for any modification, suspension or discontinuance of this Agreement, the Network or any CrossChannel Advertising Guidelines. By continuing to participate in the Network after CrossChannel has posted any such modifications or provided any required notices, You agree to be bound by the modifications. If any modification is not acceptable to You, your only recourse is to cease Participation.
By Network Participants. You may terminate this Agreement by disabling Your Account. You may terminate participating (or change or cease which Publisher Applications receive Ads) by removing the CrossChannel Ad Codes. CrossChannel will pay all undisputed amounts due to You within sixty (60) days from the last day of the month in which termination occurs.
By CrossChannel. CrossChannel may immediately terminate this Agreement, or cancel or suspend in whole or in part, the Network, for any reason at any time. In addition, CrossChannel may terminate this Agreement immediately without notice to You in the event that: (i) You fail to comply with the CrossChannel Advertising Guidelines; (ii) You breach any term or condition of this Agreement; or (iii) upon receipt of claims or allegations from third parties or authorities or if CrossChannel believes You have breached any term or condition of this Agreement. CrossChannel is not required, and may be prohibited, from disclosing a reason for the termination of Your Account. All decisions regarding the termination of Accounts shall be made in the sole discretion of CrossChannel. You agree that no liability shall arise from any termination by CrossChannel.
Survival. Upon termination or expiration of this Agreement, any terms that should by their nature survive will survive, including without limitation the indemnification and confidentiality provisions.
Publisher Application Procedure. The Network Site CrossChannel.com will be the official site for any communications regarding Ads, CrossChannel Advertising Guidelines, and this Agreement. You will direct any communications about Ads to CrossChannel and not to the Advertisers. No other communications from Advertisers or other third parties will be binding on CrossChannel or will otherwise affect this Agreement. You will not engage in any of the following prohibited activities: (i) the promotion or conduct of any illegal or fraudulent activity through Your Publisher Application; (ii) the display of obscene, pornographic, offensive, violent, defamatory, illegal or misleading content on Your Publisher Application; (iii) the use of invisible, fraudulent, automated or otherwise invalid methods to generate impressions, clicks, or transactions that are not initiated by the affirmative action of the end-user; (iv) the disruption, interception, or redirection of any links from the Ads displayed on Your Publisher Application, (v) the sending or causing to be sent unsolicited emails.
Publisher Licenses. If You participate as a Publisher, CrossChannel and the Advertisers grant You a non-exclusive license during the term of this Agreement to display the Ads on Your Publisher Applications in the form provided by CrossChannel, in accordance with the terms and conditions of this Agreement. You will not copy, modify, create derivative works of, distribute, or otherwise provide or re-syndicate the Ads. You grant CrossChannel a non-exclusive license during the term of this Agreement to index and cache information about your Publisher Application and any portion thereof, by manual or automated means (including with Web spiders and crawlers), for purposes of promoting the Network, soliciting other publishers and advertisers to participate in the Network, and directing advertisements to Your Publisher Application.
Reserved Rights. Except as expressly permitted in this Agreement, You will not earn or acquire any rights or licenses in the Network. You acknowledge and agree that CrossChannel and its licensors own all right, title, and interest in and to the Network, including all intellectual property rights therein. The Network is protected by copyright, trademark and other laws of both the United States and foreign countries. Except as expressly permitted in this Agreement, You may not reproduce, modify or prepare derivative works based upon, distribute, sell, transfer, publicly display, publicly perform, transmit or otherwise use the Network.
Calculation of Payment. As a Publisher, You will be able to generate revenue through valid, end user Actions relating to Ads displayed on Your Publisher Applications. CrossChannel will pay Publishers a percentage of the revenue received from Advertisers for Ads displayed on Your Publisher Applications, less any refunds or credits due to the Advertisers, merchant card fees, ad-serving fees, campaign referral fees, unpaid advertiser fees and other related expenses. Payments earned as a result of valid Actions will accrue and be posted to Your Account. You will be able to view an estimate of payments earned under this Agreement in Your Account. Amounts due to You will be determined solely by CrossChannel based on data regarding impressions, clicks, transactions, conversions and other applicable metrics collected by CrossChannel. CrossChannel has no obligation to pay any amounts determined by CrossChannel to have resulted from fraudulent, misleading or false activities or from any breach of this Agreement. If You dispute CrossChannel’s calculation with respect to amounts owed to You, CrossChannel will use reasonable efforts to resolve that dispute in good faith, but CrossChannel’s resolution will be final.
Timing of Payment. If, for whatever reason, the Advertisers fail to pay CrossChannel then CrossChannel, at its discretion, may deduct from Your payment in the current pay period or in future pay periods amounts owed to CrossChannel by Advertisers for Ads displayed on Your Publisher Application. If payments due to You in any month are less than one hundred dollars ($100), CrossChannel will credit amounts due to Your account and pay them in the next month in which cumulative amounts due are at least one hundred dollars. All payments will be made in U.S. Dollars. Generally, accrued payments will be available for withdrawal or transfer from Your Account thirty (30) days after the end of the calendar month in which they accrued or within thirty (30) days of the end of the month in which applicable revenue is received by CrossChannel from Advertisers. You will not be entitled to receive interest on any Account payments.
Taxes & Required Documentation. You are responsible for calculating and paying all taxes owed on all compensation or amounts received by You from us. If any governmental entity determines that we are responsible for paying taxes on Your behalf, any further compensation will be net of taxes and You will promptly refund to us the amount(s) which we were required to pay on Your behalf. If You are an individual or non-corporate entity, You must complete and submit to us an IRS Form W-9 (if You are a US citizen) or an IRS Form W-8ECI or W-8BEN (as applicable, if You are a non-US Citizen) in order for us to pay You and to prevent backup withholding on payments.
Prohibited Actions. You will not, nor permit others to, use robots, spiders, or other means of creating any artificial or fraudulent impressions of the Ads. You will not, nor permit others to, disrupt, intercept or redirect any links from Ads displayed on Publisher Applications. CrossChannel will have no obligation to pay any amounts determined by CrossChannel to have resulted from fraudulent, misleading or false activities or from any breach of this Agreement.
Payment Terms. CrossChannel may modify its payment terms at any time, upon thirty (30) days prior notice of any such change (unless CrossChannel is required by law to provide more than thirty (30) days notice). All modified payment terms shall be effective thirty (30) days after notice has been provided to You by CrossChannel (or such other time period specified in such notice). If any such modified payment terms are not acceptable to You, Your only recourse is to cease participation. By continuing to participate following notice of any modified payment terms as set forth herein, You accept and agree to be bound by such modified payment terms. For the purposes of checking credit, effecting payment and/or servicing Your Account, CrossChannel may share with third parties, such as payment processors and/or credit agencies, any credit card and related payment information that You provide.
During the term of this Agreement, each party may receive Confidential Information from the other. Except as expressly authorized by this Agreement or necessary for performance under this Agreement, each party will use reasonable efforts to maintain the confidentiality of all such information and no party will use less effort than that which it ordinarily uses with respect to its own Confidential Information. The foregoing will not restrict either party from disclosing Confidential Information of the other party: (a) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party to contest such order or requirement; and (b) on a confidential basis to its legal or financial advisors, or prospective acquirors or investors. CrossChannel Confidential Information includes (i) all software, technology, guidelines and documentation relating to the Network; (ii) campaign metrics (e.g., click-through rates, conversion rates, and targeting criteria), amounts paid or payable, and other statistics relating to the Network; and (iii) CrossChannels methods for selecting and directing Ads to Publisher Applications, and/or CrossChannels methods for selecting and directing Ads to specific Ad Codes. Your Confidential Information means any confidential business or technical information that You provide to CrossChannel. Confidential Information does not include information that: (w) is or becomes generally known to the public through no fault of or breach of this Agreement by the recipient; (x) is rightfully known by the recipient at the time of disclosure without a confidentiality obligation; (y) is independently developed by the recipient without use of the disclosing partys Confidential Information; or (z) the recipient rightfully obtains from a third party without disclosure restrictions.
By Publishers. In addition to the above, if You participate as a Publisher, You will indemnify, defend and hold CrossChannel and its officers, directors, employees, shareholders, agents, affiliates, and licensors harmless from and against any and all liability, claims, losses, damages, injuries or expenses (including reasonable attorneys fees) directly or indirectly arising from or relating to: (i) the operation or content of Your Publisher Application; or (ii) CrossChannels use of any General Data or Profile Data that You have provided pursuant to this Agreement. Furthermore, You will also indemnify, defend and hold Advertisers and any third party advertiser aggregators/agents with whom CrossChannel has contracted for Advertisers (and their respective officers, directors, employees, shareholders and agents) harmless from and against any and all liability, claims, losses, damages, injuries or expenses (including reasonable attorney’s fees) directly or indirectly arising from or relating to Your participation in the Network and the operation or content of Your Publisher Application. You acknowledge that Advertisers and any third party advertiser aggregators/agents with whom CrossChannel has contracted for Advertisers, are intended third party beneficiaries of these indemnities and You agree that You will not assert a defense based upon lack of privity against such Advertisers and third party advertiser aggregators/agents with whom CrossChannel has contracted for Advertisers, seeking to enforce these indemnities.
No Guarantee; Warranty Disclaimer. CrossChannel makes no guarantee that participation in the Network will secure any success or generate any leads from Ads, that Ads will be served on or directed to Publisher Applications, or that You will become entitled to any level of payment. CrossChannel DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CROSSCHANNEL DOES NOT WARRANT (I) THAT THE NETWORK WILL MEET YOUR REQUIREMENTS; (II) THAT THE NETWORK AND ANY ADS WILL OPERATE WITHIN YOUR APPLICATION; OR (III) THAT THE OPERATION OF THE NETWORK WILL BE ERROR FREE OR UNINTERRUPTED OR THAT ANY ERRORS WILL BE CORRECTED.
Limitation of Liability. EXCEPT FOR LIABILITY ARISING UNDER PROHIBITIONS, CONFIDENTIAL INFORMATION, INDEMNIFICATION SECTIONS ABOVE, EACH PARTY’S OTAL CUMULATIVE LIABILITY TO THE OTHER UNDER THIS AGREEMENT WILL BE LIMITED TO THE AMOUNTS PAID OR OWING TO YOU HEREUNDER IN THE TWELVE(12) MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY. NEITHER YOU NOR CROSSCHANNEL WILL BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING LOSS OF USE, DATA, OR PROFITS, OR BUSINESS INTERRUPTION) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE NETWORK. IN ADDITION, CROSSCHANNEL WILL NOT BE LIABLE FOR ANY BUSINESS INTERRUPTION OR LOSS OF DATA ARISING FROM YOUR PARTICIPATION IN THE NETWORK, TERMINATION OF YOUR PARTICIPATION IN THE NETWORK, OR ANY CESSATION OF NETWORK FUNCTIONS.
General. This Agreement shall be governed by California law except for its conflicts of laws principles and will be adjudicated in the federal or state courts located in the Northern District of California. The parties hereby consent to personal jurisdiction and venue therein. If any portion of this Agreement is found to be unenforceable, the remaining provisions shall remain in full force. You may not assign this Agreement without CrossChannel’s prior written consent. Any attempt to assign this Agreement other than as permitted above will be invalid. This Agreement is intended for the sole benefit of the parties and is not intended to benefit any third party, except that the parties agree that Advertisers and any third party advertiser aggregators/agents with whom CrossChannel has contracted for Advertisers, are intended third party beneficiaries of the indemnities hereunder.