Mobile Minded Terms and Conditions for Publishers
This agreement (“Agreement”), is made the between Mobile Minded BV (“Client”), and the confirmed “Media Partner”. In consideration of the premises and promises set forth herein, both parties hereby agree the following:
(A) “Lead” shall mean a subscriber to a service from the Client. The Media Partner will be renumerated on a CPA basis. Client reserves the right to reject Leads in the event these Leads are – subject to Client discretion – considered to be fraudulent.
(B) “Confidential Information” shall mean any non-public or proprietary information provided by one party to the other during the Term, including without limitation, information concerning the Websites’ or Media Partner products and services, financial affairs, partnerships, marketing plans or strategies, current or future business opportunities, technology, websites, customer relationships, and contact lists. For purposes of this Agreement, Confidential Information shall not include information the receiving party can document: (i) was or has become readily available to the public without restriction through no fault of the receiving party, its employees, or its agents; (ii) was received without restriction from a third party lawfully entitled to possess and disclose such information; (iii) was rightfully in possession of the receiving party without restriction prior to the other party’s disclosure of such information to the receiving party; or (iv) was disclosed pursuant to the written consent of the other party.
II. SERVICES; DATA USE
(A) Except as otherwise provided in this IO, Media Partner shall deliver Leads to Client; however, Media Partner shall not be liable for any inability to regularly provide Leads to Client. Client understands and agrees that Leads have not been credit screened, scored, or pre-qualified.
(B) Client shall use any Leads provided hereunder, and any information pertaining to such Leads obtained as a result of this Agreement (whether received from Media Partner or from the consumer) (“Related Information”), only for the purposes of Client’s own marketing. For purposes of this Agreement, Leads and Related Information shall be considered Confidential Information of Media Partner.
(C) Client shall not sell, license or otherwise transfer use, possession, right, title, or interest in or to such Leads or Related Information for any purpose whatsoever. (B) All marketing efforts, solicitations, advertising copy, and any other communications with consumers as a result of this Agreement shall be in a professional manner consistent with industry standards. (C) Client shall at all times act in compliance with all applicable privacy and data protection laws such as GDPR and shall not process any personal data unless the data subject has given consent thereto. Consent of the data subject means any freely given, specific, informed and unambiguous indication it agrees with the processing.
(D) Client shall use the Leads and/or Related Information at all times in compliance with: any applicable national laws, rules and regulations, all applicable privacy and data protection laws such as GDPR, any publicity right, intellectual property right, or any other right
(A) Client shall pay Media Partner fees (the “Fees”) in an amount equal to the rate indicated under Cost Per Lead on the applicable IO times the number of Leads. Client shall have no obligation to pay for any fraudulent or duplicate Lead (a Lead that Media Partner has previously delivered to Client); provided, however, that Client must identify any such invalid Lead to Media Partner, together with the reason for such invalidity, not later than seven (7) days after receipt of such Lead from Media Partner, and that Client may not utilize any Lead reported as invalid for any purpose.
IV. NO ASSIGNMENT OR RESALE OF AGREEMENT
Neither party may assign its rights or obligations under this Agreement without written consent from the other party, which shall not be unreasonably withheld or delayed; provided, however, nothing shall prevent either party from assigning its rights or obligations hereunder to a successor in ownership in connection with any merger, consolidation, or sale of substantially all of the assets of the business of the assigning party, or any other transaction in which ownership of more than fifty percent (50%) of the assigning party’s voting securities is transferred.
V. NO OTHER WARRANTIES
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, MEDIA PARTNER MAKES NO WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, AS TO THE PRODUCTS, SERVICES, AND/OR INFORMATION PROVIDED HEREUNDER. CLIENT UNDERSTANDS AND AGREES THAT ANY INFORMATION PROVIDED HEREUNDER REPRESENTS SELF-REPORTED INFORMATION FROM INDIVIDUAL CONSUMERS, AND IS PROVIDED ON AN AS-IS BASIS. MEDIA PARTNER MAKES NO WARRANTY AS TO WHETHER CLIENT WILL REALIZE ANY PROFIT OR RECEIVE ANY PAYMENT AS A RESULT OF THE LEADS PROVIDED. MEDIA PARTNER DISCLAIMS ANY WARRANTIES THAT COULD BE IMPLIED IN CONTRACT, IN LAW, OR IN EQUITY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, COMPLETENESS, RELIABILITY, OR PERFORMANCE, OR ARISING FROM USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE.
VI. LIMITATION OF LIABILITY
IN NO EVENT SHALL MEDIA PARTNER BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY LOSS, DAMAGE, OR EXPENSE IN CONNECTION WITH THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, DAMAGES RELATING TO LOSS OF PROFITS, INCOME, OR GOODWILL, EVEN IF CLIENT IS AWARE OF THE POSSIBILITY OF DAMAGES. IN NO EVENT SHALL MEDIA PARTNER LIABILITY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) FOR MONETARY DAMAGES UNDER THIS AGREEMENT EXCEED THE FEES PAID BY CLIENT TO MEDIA PARTNER HEREUNDER.
(A) Client agrees to indemnify, defend, and hold harmless Media Partner and its officers, directors, employees, representatives, agents, subsidiaries, and affiliates, from and against any and all third party claims, actions, liabilities (including all reasonable costs, expenses, and attorneys' fees) arising from or in connection with (1) any claim that Client’s use of the Leads or Related Information violates any law or privacy or publicity right, intellectual property right, or any other right; (2) any claim in relation to or as consequence of or arising out of any breach, non-compliance or non-performance of any or all of the covenants, guarantees, warranties, representations, obligations, or provisions processing of personal data and/or any applicable laws, including without limitation the GDPR. (3) the products, services, and/or counsel provided by Client to its customers and/or an Media Partner Lead; (4) any communications by Client to individuals to which the information in any Lead pertains, or (4) Client’s breach of any of its obligations, representations, or warranties under this Agreement. Media Partner shall promptly notify Client in writing of all such claims and shall accommodate Client’s reasonable requests for cooperation and information. Media Partner shall agree to Client’s sole control over the defense and any settlement of such claims; provided, however, that Client shall not agree to any settlement that could adversely affect the rights or interest of Media Partner without the express written consent of Media Partner.
(B) Media Partner agrees to indemnify, defend, and hold harmless Client and its officers, directors, employees, representatives, agents, subsidiaries, and affiliates, from and against any and all third party claims, actions, liabilities (including all reasonable costs, expenses, and attorneys' fees) arising from or in connection with (1) any claim that the products and/or services provided by Media Partner hereunder violate any law or privacy right such as GDPR , any publicity right, intellectual property right, or any other right, except to the extent that such claim is based on any action or omission of Client; or (2) Media Partner breach of any of its obligations, representations, or warranties under this Agreement. Client shall promptly notify Media Partner in writing of all such claims and shall accommodate Media Partner reasonable requests for cooperation and information. Client shall agree to Media Partner sole control over the defense and any settlement of such claims; provided, however, that Media Partner shall not agree to any settlement that could adversely affect the rights or interest of Client without the express written consent of Client.
Media Partner and Client each represent and warrant to the other party that (a) such party has the full corporate power and authority to enter into this Agreement, to grant the licenses granted hereunder and to perform the acts required of it hereunder, and (b) this Agreement constitutes the legal, valid and binding obligation of such party, enforceable against it in accordance with its terms, except as such may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar law affecting the enforcement of creditors’ rights generally and except as may be limited by federal principles of equity.
If an agency signs the Agreement, it does so as Client’s agent, and Client and agency will be jointly and severally liable for all obligations hereunder. Agency represents that it has full authority to act on Client’s behalf, provided, however, that nothing herein will release Client or agency from any obligation or liability hereunder, and Media Partner may look to Client or agency for performance of all obligations under this Agreement.
XI. FORCE MAJEURE
Neither party shall be liable for delays or nonperformance of this Agreement if such delay or nonperformance was caused by: (a) act of God, act of war, strike, fire, natural disaster, or accident; (b) lack of availability of materials, fuel, or utilities; or (c) any other cause beyond such party’s control.
XII. CONFIDENTIAL INFORMATION
For a period of three (3) years, beginning on the Effective Date, each party will keep strictly confidential all Confidential Information disclosed by the other party, except to the extent an applicable governmental law, order, decree, regulation, rule, or process requires disclosure. In the event of such required disclosure, the receiving party shall provide written notice thereof to the disclosing party as soon as reasonably possible, and shall reasonably cooperate with the disclosing party in resisting the disclosure of or obtaining confidential treatment for such Confidential Information.
This Agreement and all applicable IOs and Addenda: (i) shall be governed by and construed in accordance with the laws of The Netherlands, without giving effect to principles of conflicts of law, and the parties consent to the exclusive jurisdiction of the country and courts having jurisdiction over The Netherlands; (ii) may be amended only by a written agreement executed by an authorized representative of each party; (iii) constitute the complete and entire expression of the agreement between the parties, and shall supersede any and all other agreements, whether written or oral, between the parties. In the event that any provision of this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, the remaining provisions shall remain in full force and effect. All notices, demands and other communications hereunder must be in writing or by written telecommunications and will be deemed to have been duly given (a) if mailed by certified mail, postage prepaid, on the date three days from the date of mailing, (b) if delivered by overnight courier, when received by the addressee or if sent by confirmed telecommunication, one business day following receipt by the addressee at the addresses set forth on the Agreement, or such other address as either party may specify in writing.
By signing, Media Partner acknowledges and affirms that Media Partner has read, understands and agrees to the provisions of this Agreement, including the terms of the applicable IO and any Addendum(a) attached hereto, all of which are made a part hereof and together shall comprise the entire Agreement between Client and Media Partner. In the event of a conflict between these Terms and Conditions and any other attachment or other document (including Addenda and IOs) these Terms and Conditions shall govern.
XIV. TRAFFIC SOURCES
Please note that the following traffic sources are not allowed under any circumstances on Mobile Minded offers.
If Found by Mobile Minded, all made sales will be indemnified and will not be paid out to partner.