Terms & Conditions

Analyze46 Publisher Agreement

1. General. Publisher will deliver all advertisements provided by Analyze46 on Publisher’s applications or site(s) (such inventory of properties displaying the Advertisements, “Sites”).  Analyze46 shall provide the services (“Analyze46 Services”) of ad delivery and management. Publisher shall reasonably assist Analyze46 in its implementation of the Analyze46 Services hereunder. As part of the Analyze46 Services, Analyze46 may provide certain software (“Software”) for installation on the Sites, solely to enable Publisher’s use of the Analyze46 Services.
2. Advertisement Specifications.  Publisher agrees to deliver all Advertisements in accordance with the Agreement, including any placement requirements and technical specifications provided by Analyze46 to enable proper display of such Advertisements on a reasonably balanced delivery schedule.  Any exceptions must be pre-approved by Analyze46 in writing.  Publisher will be solely responsible for any and all costs Publisher incurs for the delivery of the Advertisements in accordance with such specifications and for any programming related to the same which Publisher elects to undertake.  In no event shall Publisher modify or alter the content, text or appearance of any Advertisements without Analyze46’s prior written consent.
3. Payment Terms.  Analyze46 shall pay Publisher a share (specified in the applicable Service Order) of the Net Advertising Revenue for Advertisements actually delivered by Publisher, due and payable within 60 days after the end of each calendar month; provided that amounts of less than $10 0 will be held until amounts due equal or exceed $10 0. “Net Advertising Revenue” means gross revenues billed for Advertisements less deductions for fraud, chargebacks, refunds, credit card processing fees, uncollected amounts, agency fees and referral fees.
4. Fraud.  Analyze46 will not be obligated to pay for any fraudulent actions generated by any person, bot, automated program or similar device in connection with any Advertisements provided by Analyze46, as reasonably determined by Analyze46, subject to Analyze46 providing reasonable documentation to Publisher with respect thereto.  Fraud adjustments are applicable upto net 90 days from end of each calendar month. 
5. Reporting and Measurement.  Publisher will provide prompt confirmation to Analyze46 that Publisher has initiated delivery of Advertisements. Analyze46 will determine how to measure the number of impressions, inquiries, conversions, clicks, offers, installations, or other actions taken by third parties in connection with Ads, and all payment will be based on such measurements, which shall be final and are subject to change upto 30 days after reporting.
6. Compliance and Non-Interference.  Publisher agrees that it will deliver the Advertisements in compliance with all applicable local, state, national and international laws and regulations, including any laws regarding the transmission of technical data exported from Publisher’s country of residence. Publisher will not, will not agree to, and will not authorize or encourage any third party to (a) interfere or attempt to interfere with the proper working of the Analyze46 Services or prevent others from using the Analyze46 Services; (b) use the Analyze46 Services for any fraudulent or unlawful purpose; or (c) reverse engineer the Software.  Publisher may use any information (including any usage data and compilations thereof) or Software provided by Analyze46 to Publisher only for the purpose of providing Advertisements on the Sites as set forth in this Agreement.  Violation of any of the foregoing may result in immediate termination of this Agreement, at Analyze46 discretion, in addition to any remedies available at law or in equity. Analyze46 reserves the right, but will have no obligation, to review Publisher’s display of Advertisements and use of the Analyze46 Services in order to determine whether a violation of this Agreement has occurred or to comply with any applicable law, regulation, legal process, or governmental request.
7. Representations and Warranties.  Each party hereby represents and warrants to the other party that: (a) it has the full right, power and authority to enter into this Agreement; (b) this Agreement is a valid and binding obligation of such party; (c) it has obtained and shall maintain throughout the term of this Agreement all necessary licenses, authorizations, approvals and consents to enter into and perform its obligations hereunder; and (d) it will comply with all applicable laws, rules and regulations in the performance of this Agreement. 
8. Indemnification. 
1. ANALYZE46 Indemnification. Analyze46 agrees to indemnify, defend, and hold Customer and its directors, officers and employees harmless from and against any third party liabilities, damages or expenses (including reasonable attorneys’ fees) arising out of any claim, demand, action, or proceeding initiated by a third party to the extent alleging that the technology underlying the Analyze46 Services, or any portion thereof, infringes any third party United States patent or copyright or misappropriates any third party trade secret.
2. Customer Indemnification. Customer agrees to indemnify, defend, and hold Analyze46 and its directors, officers and employees harmless from and against any third party liabilities, damages or expenses (including reasonable attorneys’ fees) arising out of any claim, demand, action, or proceeding initiated by a third party to the extent attributable to:(i) the alleged or actual breach of Customer’s representations and warranties set forth herein; or (ii)     with respect to Customer’s use of the Analyze46 Platform, (a) Customer’s failure to secure all consents, licenses, waivers, rights, title, and interest necessary to display the Ads; (b) an allegation that the Publisher Ads, including the content and services, products or goods being advertised, infringe upon, violate, or misappropriate any Intellectual Property Rights, or slander, defame, or libel any person; or (c) Customer’s or the Publisher Ads’ failure to comply with the Analyze46 Policies.
3. Procedure. As a precondition to indemnity coverage, the party seeking indemnification (the “Indemnified Party”) must comply with the following indemnification procedures: (a) Indemnified Party promptly notifies indemnifying party (the “Indemnifying Party”) in writing of the claim, except that any failure to provide this notice promptly only relieves Indemnifying Party of its indemnification responsibility to the extent its defense is materially prejudiced by the delay; (b) grants Indemnifying Party sole control of the defense and/or settlement of the claim; and (c) provides Indemnifying Party, at Indemnifying Party’s expense, with all assistance, information and authority reasonably required for the defense and/or settlement of the claim, but in a manner consistent with Indemnified Party’s confidentiality obligations and preservation of attorney/client and work product privileges.
4. Exclusions. Analyze46 assumes no indemnity liability for: (a) any infringement claims arising out of the combination of the Analyze46 Service or use with other hardware, software or other items not provided by Analyze46 to the extent such infringement would not have occurred absent such combination or use; (b) any unauthorized modification of the Analyze46 Services; or (c) any claims arising out of Analyze46’s compliance with Customer’s specifications or designs. In the event of a claim, demand, action or proceeding that the technology underlying the Analyze46 Services infringes or misappropriates any third party Intellectual Property Right or other right or, if in Analyze46’s reasonable opinion, such claim, demand, action or proceeding is likely to occur, Analyze46 shall have the right, at Analyze46’s sole cost and expense, to either: (i) obtain the right to continued use of the affected portion of the Analyze46 Services, or (ii) modify or replace the affected portion of the Analyze46 Services to eliminate the infringement or misappropriation. If Analyze46 is unable to achieve the foregoing (i) or (ii) in a commercially reasonable manner, Analyze46 shall have the right to immediately terminate this Agreement upon written notice to Customer without liability thereafter. The provisions of this Section 8 constitute Customer’s sole remedy and Analyze46’s exclusive liability related to the Analyze46 Services with respect to any infringement, violation, or misappropriation of any Intellectual Property Right.
10. Disclaimers.  EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8, NEITHER PARTY MAKES ANY WARRANTY, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO ANY MATTER, AND EXPRESSLY DISCLAIMS THE WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE.  ANALYZE46 DOES NOT WARRANT THE RESULTS OF USE OF THE ANALYZE46 SERVICE, INCLUDING THAT PUBLISHER WILL EARN ANY PARTICULAR AMOUNTS HEREUNDER. ANALYZE46 AND ITS SUPPLIERS, LICENSORS, AFFILIATES, AND PARTNERS DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE ANALYZE46 SERVICES OR ANALYZE46 CODE WILL BE CORRECT, UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THEY ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANALYZE46 DOES NOT WARRANT THE RESULTS OF USE OF THE ANALYZE46 SERVICES OR ANALYZE46 CODE.
11. Limitation of Liability and Damages.  UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, WILL ANALYZE46 OR ITS AFFILIATES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES HEREUNDER, EVEN IF ANALYZE46 OR AN ANALYZE46 AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  EXCEPT IN THE CASES OF BREACHES OF SECTION 13 (CONFIDENTIALITY), NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY, IN NO EVENT WILL ANALYZE46 OR ITS AFFILIATES’ TOTAL LIABILITY TO PUBLISHER FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO A SERVICE ORDER (WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE) EXCEED THE AMOUNTS PAID TO PUBLISHER PURSUANT TO THE SERVICE ORDER TO WHICH THE CLAIM RELATES DURING THE TWELVE MONTHS PRECEDING ANALYZE46’S RECEIPT OF THE CLAIM NOTICE FROM PUBLISHER.
12. Ownership.   Analyze46 and its licensors will own and retain all rights, title, and interest in and to the Analyze46 Services, including the Software and all information (including any usage data and compilations thereof) related thereto. Publisher agrees not to copy, alter, modify, or create derivative works of any such information or Software or the Analyze46 Services or otherwise use the Analyze46 Services or any such information or Software in any way that violates the use restrictions contained in this Agreement. Publisher and its licensors will own and retain all rights, title, and interest in and to the Sites and the data it collects from its end users.  Analyze46 may use such data only as necessary to provide and improve the Analyze46 Services. Analyze46 may indicate on its website and promotional materials that Publisher is a client of the Analyze46 Services.  Any rights not expressly granted hereunder are reserved by the respective party, and all implied licenses are disclaimed.
13. Confidentiality.  “Confidential Information” of Analyze46 shall mean (a) the Advertisements, prior to publication and (b) the Analyze46 Services, including the Software and any information (including any usage data and compilations thereof) relating to the Analyze46 Services;  Confidential Information of Publisher shall mean the end user data collected by Publisher through the Sites;  and Confidential Information of either party shall mean (a) the existence and content of this Agreement, including  the Service Orders and SLAs and (b) any other information designated in writing, or identified orally at time of disclosure, by the disclosing party as “confidential” or “proprietary.”  Each party will keep confidential, and neither party will use for any purpose, or disclose to any third party, any Confidential Information of the other party, except as specifically permitted herein, for three years after receiving such Confidential Information.  The foregoing restriction does not apply to information that: (a) has been independently developed by the receiving party without access to the other party’s Confidential Information; (b) has become publicly known through no breach of this Section by the receiving party; (c) has been rightfully received from a third party authorized to make such disclosure; (d) has been approved for release in writing by the disclosing party; or (e) is required to be disclosed by a competent legal or governmental authority, provided that the receiving party gives the disclosing party prompt written notice of such requirement prior to disclosure and assists in obtaining an order to protect the information from public disclosure.
14. Term; Termination.  The term of this Agreement will commence on the Effective Date and continue for 24 months, unless terminated earlier as set forth in this Section. In the event of a material breach by a party, the non-breaching party may terminate this Agreement upon 45 days notice, if the breach is not cured during the notice period.  Sections 12, 13, 15 and 16 shall survive termination. Either party may terminate this Agreement for any reason or no reason upon thirty (30) days notice to the other party at any time for convenience during the Term in writing.
15. Law and Jurisdiction.  This Agreement shall be governed by and construed in accordance with the laws of San Francisco, CA , without giving effect to principles of conflicts of law.  Any dispute hereunder will be negotiated in good faith between the parties’ executive management within 45 days commencing upon written notice from one party to the other and neither party will file an action prior to the termination of such 45 day period.  Any action arising out of or relating to this Agreement will be filed only in the courts in and for  San Francisco, CA , and the parties hereby consent and submit to the personal and exclusive jurisdiction of such courts for the purposes of litigating any such action.  Notwithstanding the foregoing, either party may seek immediate injunctive relief in any court having jurisdiction in the event of breach or threatened breach of Section 13, and Analyze46 may seek immediate injunctive relief in any court having jurisdiction in the event of breach or threatened breach by Publisher of Section 7. 
16. Miscellaneous.  This Agreement may be assigned by either party to an entity that succeeds to all or substantially all of such party’s business or assets.  The parties are independent contractors, and neither Analyze46 nor Publisher is an agent, representative or partner of the other.  This Agreement sets forth the entire agreement between Analyze46 and Publisher, and supersedes any and all prior agreements (whether written or oral) with respect to the subject matter set forth herein.  This Agreement may be amended only by a writing executed by a duly authorized representative of each party. This Agreement shall be controlling over additional or different terms of any order, acknowledgment, invoice or similar document, even if accepted in writing by both parties, and any waivers and amendments of any provision of this Agreement shall be effective only if made by non-preprinted agreements signed by both parties and clearly understood by both parties to be an amendment or waiver of this Agreement.  The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party. All references to “dollars” or “$” shall mean United States D ollars.  As used in this Agreement, the word “include” and variations thereof will be deemed to be followed by the words “without limitation.” If any provision contained in this Agreement is determined to be invalid, illegal, or unenforceable in any respect under any applicable law, then such provision will be severed and replaced with a new provision that most closely reflects the original intention of the parties, and the remaining provisions of this Agreement will remain in full force and effect.