Reference is made to the Insertion Order (the "IO") between Publisher and NUMERICAL ONE9 ONLINE MEDIA for the provision of digital marketing services or other related services (the "Services") identified in the IO and any other similar document issued by NUMERICAL ONE9 ONLINE MEDIA relating thereto (the "Related Document"). The standard terms and conditions below (the "T&Cs"), the IO and the description and other specifications of the Services identified in the Related Document shall be collectively referred to herein as the "Agreement".
1. Definitions. Unless otherwise specified, capitalized terms used in this Agreement have the meanings given to such terms in this Section 1.
Associated Entity means an entity which, directly or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with a party. For this purpose "control" means the direct or indirect ownership of in aggregate fifty percent or more of voting capital.
Client means NUMERICAL ONE9 ONLINE MEDIA’s client, if NUMERICAL ONE9 ONLINE MEDIA is an agency or a media buyer.
Confidential Information means any confidential or proprietary information and data of the Disclosing Party or its Associated Entities, disclosed to the Recipient or its Representatives in connection with this Agreement, whether disclosed before or after the Effective Date and whether disclosed electronically, orally or in writing or through other methods made available to the Recipient or its Representatives. Notwithstanding the foregoing, for purposes of this Agreement, Confidential Information shall not include any information which the Recipient demonstrates by clear and convincing evidence is
(i) at the time of disclosure in the public domain or thereafter enters the public domain without any breach of this Agreement by the Recipient or any of its Representatives,
(ii) known by the Recipient before the time of disclosure, other than as a result of a prior disclosure by the Disclosing Party or its Associated Entities or the Disclosing Party’s Representatives,
(iii) obtained from a third party who is in lawful possession of same and does not thereby breach an obligation of confidence to the Disclosing Party regarding such information, or
(iv) developed by or for the Recipient or its Representatives through their independent efforts without use of Confidential Information; provided that, in each of the foregoing clauses (i) through (iv), no combination of features shall be deemed to be within the foregoing exceptions merely because individual features are publicly known or in the Receiving Party’s possession, unless the particular combination itself and its principle of operations are in the public domain or in the
Receiving Party’s possession without the use of or access to Confidential Information. The material terms of this Agreement are deemed to be Confidential Information of each Party.
CPA (Cost per Action) means a pricing model that calculates digital marketing payments according to NUMERICAL ONE9 ONLINE MEDIA -specified "actions" in response to an ad beyond simply clicking on it, including but not limited to subscriptions, email sign-ups, activations, sales leads and purchases.
CPC (Cost per Click) means a pricing model that the publisher is paid each time a visitor clicks on a given Creative and thereby being directed to a selected mobile webpage. No matter what action is taken at the selected mobile webpage, all that matters with this pricing model is that the Creative was clicked.
CPT (Cost per Time) means a pricing model by which NUMERICAL ONE9 ONLINE MEDIA pays for the Creative to be shown on a website/wap site for each billable time-based unit.
CPI (Cost per Installation) means a pricing model that calculates digital marketing payments according to the amount of installations. An installation is counted when a visitor downloads, installs and opens the application, mobile game or other products through clicking on the Creative promoted by Publisher, as determined by NUMERICAL ONE9 ONLINE MEDIA's tracking technology.
CPM (Cost perMile) means a pricing model that the payments are calculated and made for each one thousand impressions. For this purpose, "impressions" means a measure of the number of times a Creative is seen. Without prejudice to any other terms of this Agreement, an impression occurs each time a unique visitor hits to a selected website/wap site, and this will be counted as an impression.
Creative means materials of any type used under this Agreement, including, but not limited to, buttons, banners, text-links, pop-ups, pop-under and text, possible mobile web link, and/or graphic file or file of such other format to be displayed for the purpose of digital marketing.
Disclosing Party means the Party disclosing or providing Confidential Information (either directly or through such Party’s Representatives) to the Recipient or the Recipient’s Representatives.
Event of Force Majeure means an earthquake, typhoon, floods or other acts of God, fire, explosion, action of governmental or military authority, upheaval, riot, war or any other major emergency that is unforeseeable and unavoidable.
Campaign Dates means a period of time starting with the Commencement Date and ending with the End Date as specified in the IO.
Fraudulent Activities means by way of example only and without limitation, actual or attempted to:
(i)use or encourage or facilitate others to use optimization services and/or software to fraudulently inflate impressions, clicks or other user actions or information regarding user actions;
(ii)generate or facilitate actions that are based on fraudulent or deceptive practices, including the or use of deceptive implementation methods, robots or other automated tools to generate unintended user actions or
encourage or facilitate any illegitimate user actions;
(iii) mislead users to click on the Creative;
(iv)in any way minimize or obstruct the display of any Creative’s, or edit, modify, filter or change the order of the
information contained in any Creative’s;
(v) edit the website tags, source codes, links, pixels, modules, software development kits or other data provided by NUMERICAL ONE9 ONLINE MEDIA ; or reverse engineer, decompile or disassemble any software components of the digital marketing services provided by NUMERICAL ONE9 ONLINE MEDIA ;
(vi)offer or provide any unauthorized incentives (financial or otherwise) to end users;
(vii)blind text links; or
(viii)use unsolicited email or inappropriate newsgroup postings to promote Websites .
Governmental Authority means any governmental authority, quasi-governmental authority, instrumentality, court, government or self-regulatory organization, commission, tribunal or organization or any regulatory, administrative or other agency, or any political or other subdivision, department or branch of any of the foregoing.
Intellectual Property Rights means on a worldwide basis, any and all now known or hereafter known (i) rights associated with works of authorship including copyrights and moral rights, (ii) trademark and trade name rights and similar rights, (iii) trade secret rights, (iv) patent rights and other industrial property rights, (v) intellectual and industrial property rights of every other kind and nature and however designated, whether arising by operation of law or otherwise, and (vi) all registrations, applications, renewals, extensions, continuations, divisions, or reissues thereof now or hereafter existing, made, or in force (including any rights in any of the foregoing).
Law means any statute, treaty, ordinance, rule, regulation, permit, order, writ, injunction, judicial decision, decree, code or other legally binding requirement of any Governmental Authority that may be in effect from time to time.
Price means the Volume respectively multiplied by the Unit Price as specified by this Agreement.
Publisher Media means a search engine, website/wap site, application, or other media owned or operated by Publisher, or on which Publisher is otherwise legally authorized to act in the manner contemplated by this Agreement.
Recipient means the Party receiving the Confidential Information (either directly or indirectly through such Party’s Representatives) from the Disclosing Party or the Disclosing Party’s Representatives.
Representatives means, with respect to a particular Party, such Party’s (i) Associated Entities, (ii) officers, directors and employees, (iii) attorneys, accountants and financial advisors, and (iv) officers, directors and employees of such Party’s Associated Entities, who shall each be legally obligated to observe and perform the obligations of such Party and to keep and treat the Disclosing Party’s Confidential Information received hereunder in a manner consistent with the terms hereof.
Unit Price means the average cost of a unit, which is specified in the IO and may vary considerably according to the applicable Pricing Model.
Volume means(i) the inventory (e.g., the amount of clicks, impressions, installations or other desired actions) where the CPC,CPM,CPI or CPA pricing models apply; (ii) the amount of billable time-based
units where the CPT pricing model applies; or (iii) the amount of other deliverables as specified in the IO.
Wap Site means a HTML document containing a set of information (similar to Website) available using mobile device via GPRS. Website means a HTML document containing a set of information available via the Internet. For purpose of this Agreement, whatever is applicable for Websites, the same is valid for WAP Sites.
During the term of this Agreement, NUMERICAL ONE9 ONLINE MEDIA grants Publisher a non-exclusive, non-transferable, revocable license to use, reproduce, transmit and distribute the Creative, solely in accordance with the details set forth in the IO. Moreover, solely for the purpose of Service, NUMERICAL ONE9 ONLINE MEDIA hereby grants Publisher a limited, royalty free, non-transferable, non-exclusive right to use NUMERICAL ONE9 ONLINE MEDIA ’s trademark, trade name, service mark and domain name, and any visual representations thereof, including logos, designs, symbols, word marks, images, colors and color combinations, trade dress and characters, and any other publicity rights or indicia of ownership owned or used by NUMERICAL ONE9 ONLINE MEDIA or its Associated Entities.
2.2 T&C Details.
During the Term of this Agreement, the Parties may from time to time accepting are subject to the terms of this Agreement. As applicable, each IO will specify:
(i) the Volume and pricing model;
(ii) the Unit Price ;
(iii) the maximum amount of money to be spent;
(iv) the Commencement Date and End date of the campaign; and
(v) the identification of the Parties. Other items that may be included are, but are not limited to, reporting requirements, any special Creative delivery scheduling and specifications concerning ownership of data collected. Revisions to confirmed IOs will be made in writing (which, unless otherwise specified, for purposes of this Agreement, will include paper or e-mail communication) and acknowledged by the other party in writing.
2.3 Restrictions. Publisher shall not:
(a) By accessing the Services, store, transmit, distribute, disseminate, publish or post any content in such a way as to breach any applicable Law, NUMERICAL ONE9 ONLINE MEDIA policy or guideline, or to infringe the rights (in particular, the Intellectual Property Rights) of, or restrict or inhibit the access to and enjoyment of the Services by, any other person;
(b) By accessing the Services, deliberately, recklessly, or maliciously introduce any computer viruses, worms, software bombs or similar items on to any NUMERICAL ONE9 ONLINE MEDIA or third party systems;
(c) Share, display or disclose any Creative that may be considered to contain the following content:
(i) any content that contains or promotes concepts that are hateful or disparaging towards any race,
religion, gender, sexual orientation or nationality;
(ii) any content that promotes firearms, bombs and other weapons or how-to guides for any of the above;
(iii) any content that contains false, misleading or deceptive representation(as determined by NUMERICAL ONE9 ONLINE MEDIA at its sole discretion);
(iv) any content
iii) any content that contains false, misleading or deceptive representation(as determined by NUMERICAL ONE9 ONLINE MEDIA at its sole discretion);
(iv) any content that contains, promotes or links to indecent, obscene or highly explosive subject matter (as determined by NUMERICAL ONE9 ONLINE MEDIA at its sole discretion);
(v) any content that facilitates or promotes illegal file-sharing (MP3s, copyright protected video, or the equivalent);
(vi) any adult-oriented content, including without limitation to, sexually suggestive content, images containing exposed skin and nudity, dating services, international bride services, and adult merchandise, unless permitted under applicable law and Publisher obtains prior written authorization from NUMERICAL ONE9 ONLINE MEDIA;
(vii) any content that contains or promotes illegal activities, including without limitation to hacking, phreaking or phishing; or
(viii) any content that has the potential to create liability for NUMERICAL ONE9 ONLINE MEDIA or cause NUMERICAL ONE9 ONLINE MEDIA
to violate the requirements of or to lose the services, in whole or in part, of other Internet service providers.
3. Price, Payments, Taxes and Costs.
The Price will be solely based upon the Volume compiled by NUMERICAL ONE9 ONLINE MEDIA Solutions Pvt Ltd tracking and reporting system. NUMERICAL ONE9 ONLINE MEDIA will provide the Publisher with a report on [monthly] basis, unless otherwise agreed in the IO detailing the Volume in relation to the campaigns. The aforesaid report will be broken out by day and be sent by the third week of every following [month]. Publisher agrees to accept the NUMERICAL ONE9 ONLINE MEDIA report as the official basis for measuring the Volume and acknowledges that it shall not be entitled to any further information on the Volume. Publisher further acknowledges that in some cases, NUMERICAL ONE9 ONLINE MEDIA will need to make adjustments to reported statistics due to specific contractual provisions (e.g., Fraudulent Activities), statistical errors, or third party tracking provided by Client.
Unless NUMERICAL ONE9 ONLINE MEDIA has prepaid, Publisher will issue the invoices on a[monthly]
basis upon its receipt of the reports aforementioned in Section 3.1 from NUMERICAL ONE9 ONLINE MEDIA .Invoices will be sent to NUMERICAL ONE9 ONLINE MEDIA’s billing address as set forth on the IO and will at a minimum contain the IO number, company name, campaign name and any number or other identifiable reference stated as required for invoicing on the IO. The invoice shall cover only those inventory that meet the criteria specified in this Agreement. Publisher must send the invoices in time; otherwise NUMERICAL ONE9 ONLINE MEDIA shall not bear any liability of late payment therein.
NUMERICAL ONE9 ONLINE MEDIA shall pay the Price in full to Publisher within  days after receiving the invoice from Publisher. All amounts payable to Publisher under this Agreement will be paid in INR/USD to Publisher bank account mentioned in Invoice shared by publishers. Publisher may update its bank account information from time to time during the Term by providing NUMERICAL ONE9 ONLINE MEDIA with the update.
10. Fees and other charges:-
Wire Transfer Fees. Any commission fees regarding to the money transfer shall be borne by the Publishers.