These Kiosked Publisher Terms and Conditions (the “Publisher Terms“) represent a binding legal agreement between Kiosked Information Systems Limited (a company established in Ireland, registration number 496096, “Kiosked”) and you, on behalf of and as authorized representative of the publisher company you represent (“You”, “you” or “Publisher”).
1. KIOSKED SERVICE
These Publisher Terms govern Publisher’s use of the Kiosked publisher services, as further described on www.kiosked.com (“Kiosked Service”), and the Kiosked Publisher Services Agreement(s) executed by Publisher (the Publisher Terms and the Kiosked Publisher Services Agreement collectively the “Agreement”). In the event that Publisher uses the Kiosked Service prior to executing a Kiosked Publisher Agreement, Publisher’s use of the Kiosked Service shall be subject to these Kiosked Publisher Terms in force and published on www.kiosked.com/terms-of-use from time to time and the then-current default revenue share model applied by Kiosked. As used in these Publisher Terms, capitalized terms shall have the meanings ascribed to such terms herein or in the Publisher Services Agreement.
By using the Kiosked Service, You represent and warrant that you are authorized to bind the Publisher to these Publisher Terms. If you do not agree with these terms or a part thereof or in case you are not authorized to bind the Publisher, you and the Publisher are not authorized to use the Kiosked Service.
You acknowledge that Kiosked is continuously developing the features and the functionality of the Kiosked Service. Kiosked may, from time to time, under its sole discretion, modify and update the Kiosked Service or a part thereof and may cease to provide the Kiosked Service in whole or in part. You acknowledge further that the Kiosked Service may also be temporarily unavailable for maintenance or other reasons.
Publisher acknowledges and agrees that Kiosked shall exercise full operational control over the advertisements and other content served via the Kiosked Service to and on Publisher Properties, including without limitation, playing or showing any and all video advertising without sound (on mute) to any visitors or viewers of such properties.
In case you use any Kiosked Service requiring prior online registration, you are responsible for keeping your login details used for registering to such Kiosked Service confidential. The login details are personal and may not be transferred or disclosed to any third party. You undertake to notify Kiosked immediately of any known or suspected unauthorized disclosure or use of your login details. Until receipt of such notification by Kiosked, you are responsible for all use of your Kiosked Service Account.
2. CHANGES TO PUBLISHER TERMS
Kiosked may modify these Publisher Terms at any time by posting the revised terms to www.kiosked.com or to the Kiosked Service or by emailing you. Changes are effective immediately when we post them or email them. Your continued use of the Kiosked Service means that you have accepted the changed Publisher Terms.
3. REVENUE SHARE
Kiosked shall calculate the Net Revenue for each relevant calendar month solely based on records and measurements compiled and maintained by Kiosked. No other measurements or statistics of any kind shall be accepted by Kiosked or have any effect under this Agreement (including but not limited to any statistics compiled or maintained by You). “Net Revenue” for each calendar month is defined as the amount of fees actually received by Kiosked based on monetized advertisement impressions served by Kiosked Service on Publisher Properties during the relevant calendar month as measured by Kiosked, net of value added taxes, other duties, costs, fees, revenue generated through Artificial Traffic or other invalid traffic, impressions, clicks or other invalid transactions or data fees. Publisher shall receive the specified share of the Net Revenue as agreed between the parties in the Kiosked Publisher Agreement, unless otherwise specified herein (the “Revenue Share”).
For clarity, Kiosked shall not be obliged to pay any amounts to Publisher for any advertising impressions or any other action which, pursuant to Kiosked reasonable assessment, may be: (i) based on Artificial Traffic, (ii) originating from Publisher’s IP addresses or computers or networks under Publisher’s control, (iii) solicited, requested or purchased by Publisher for the purpose of accumulate Revenue Share; (iv) impressions for which Kiosked is unable to charge its customers (for whatever reason); or (v) impressions co-mingled with a significant amount of Artificial Traffic described above. You acknowledge that any participation or attempted participation or violation of any of the foregoing is a material breach of this Agreement and may be sanctioned under criminal law. In case of suspected violations Kiosked reserves the right to withhold payments until such violations and/or any revenue clawbacks by Kiosked demand partners have been duly investigated.
“Artificial Traffic” shall mean invalid, automated, deceptive or fraudulent impressions, which may, without limitation, be generated by or originating from any person or which may originate without limitation from automatic openings, spiders, robots, automated programs, browser toolbar, adware or spyware, requests in e-mail or chat rooms, script generators, placing and using Kiosked Service in a manner they are not intended to be placed or used, impressions which are not generated by a browser and impressions which are not preceded by an active act of an end user.
Unless otherwise agreed, in case the parties have agreed on any prepayments or advances of the Revenue Share, such prepayment shall be set off against any Revenue Share accrued to Publisher under this Agreement until the prepayment has been fully recouped. In case of expiry or termination of this Agreement prior to the full recoupment of the prepayment, Publisher shall repay to Kiosked the un-recouped amount of the prepayment immediately upon such expiry or termination.
Kiosked shall pay to Publisher the applicable Revenue Share within 60 days from the end of the relevant month, if the balance is US $50 or more. In the event that the Agreement is terminated, Kiosked shall pay your outstanding balance within 90 days from the termination of the Agreement, on the condition that Kiosked has received the Net Revenue attributable to Your use of the Kiosked Service by said date. Kiosked shall in no event make any payments if Your balance is less than USD 10. All amounts shall be payable in US Dollars unless agreed otherwise.
Before sending the Revenue Share to You, Kiosked may provide You with a preliminary estimate of the Revenue Share. You acknowledge and agree that such estimate is not binding on Kiosked and is subject to change, and that the actual Revenue Share payable to You shall be finally determined only after Kiosked has received the Net Revenue in question.
The agreed Revenue Share is inclusive of any taxes or other official duties, which may be charged from the Revenue Share. You agree to pay all applicable taxes or charges imposed by any government entity in connection with Your use of the Kiosked Service or receipt of the Revenue Share. In case Kiosked has an obligation to pay withholding tax or other official charges based on the Revenue Share, Kiosked shall be entitled to deduct corresponding amounts from actual payments made to You.
Each Party shall be liable for its own applicable official charges as well as charges imposed by the bank or other credit institution engaged by the Party to send and receive payments under this Agreement. For the avoidance of any doubt, Kiosked applies so-called shared bank charges to any payments under the Agreement, i.e. Kiosked is responsible only for the fees charged by Kiosked’s bank.
Kiosked reserves the right to withhold from making any payments in case it has reason to believe You have breached the terms of this Agreement. If you dispute any payment made under this Agreement, you must notify Kiosked in writing within thirty (30) days of any such payment, failure to so notify Kiosked shall result in the waiver by You of any claim relating to any such disputed payment.
Payment of Revenue Share is subject to You providing Kiosked with such payment, identification and other information and documentation as Kiosked may request from You from time to time. You understand that Kiosked may not be able to pay you Revenue Share in accordance with this Agreement should You fail to provide such information or material or if such information or material is not correct, complete or up-to-date.
5. WARRANTIES; DISCLAIMER
Each party represents and warrants to the other party that (a) it has all necessary rights and authority to enter into, execute and perform its obligations under this Agreement; and (b) the execution of this Agreement and the performance of its respective obligations hereunder do not and will not violate any agreement to which such party is a party or by which it is otherwise bound.
In addition, Publisher represents and warrants to Kiosked that (a) each of its Publisher Properties displaying advertisements through the Kiosked Service shall have been previously approved by Kiosked and shall not violate any applicable laws or regulations or contain material that is obscene, indecent, pornographic or promotes violence or the use of firearms, illegal, contains viruses or malware or is otherwise destructive or material that infringes any third-party proprietary, privacy or other rights or is unethical, false or misleading; (b) it has and will maintain throughout the term of this Agreement all rights, authorizations and licenses that are necessary to allow Kiosked to provide the Kiosked Service to Publisher as contemplated hereunder; and (c) it will not, directly or indirectly: (i) access the Kiosked Service through or from, or otherwise incorporate the Kiosked Service in, any software application, website or other means other than through its approved Publisher Properties (ii) transfer, sell or otherwise sublicense the Kiosked Service or attempt to interfere with the functionality of the Kiosked Service or the display of advertising and other content therein; (iii) generate or contribute to generating Artificial Traffic or other impressions of or clicks on advertisements, through any invalid means such as automated, deceptive or fraudulent impressions or clicks; (iv) provide any deceptive or fraudulent incentive to users to click on advertisements; (v) transfer any personal data to Kiosked without obtaining such person’s prior consent as required by any applicable legislation; (vi) use the Kiosked Service in a manner that violates any applicable government laws or regulations, or any third party’s proprietary, privacy or other rights; or (vii) not to breach any applicable export control laws and regulations in the US and elsewhere.
EXCEPT FOR THE EXPRESS WARRANTIES CONTAINED IN THIS AGREEMENT, KIOSKED SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING KIOSKED SERVICE OR ITS OTHER SERVICES OR PRODUCTS, OR ITS PERFORMANCE OR NON-PERFORMANCE HEREUNDER, INCLUDING NON-INFRINGEMENT, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
PUBLISHER ACKNOWLEDGES AND AGREES THAT KIOSKED PROVIDES NO GUARANTEE OF REVENUE PAID OR EARNED UNDER THIS AGREEMENT.
6. INTELLECTUAL PROPERTY RIGHTS
You acknowledge that Kiosked (and/or its affiliates) owns all right, title and interest, to all Intellectual Property Rights (as defined below) in and to Kiosked Service and any other software, data, information or services of Kiosked. Such Kiosked property will remain with and belong exclusively to Kiosked and/or its affiliates. Publisher is granted a limited, non-exclusive, non-transferable, non-sublicensable, revocable right to use the Kiosked Service solely for the Publisher’s internal purposes as set forth in this Agreement. You undertake that You will not, and will not allow or have a third party to, grant access or use rights to, modify, adapt, copy, translate, prepare derivative works from, decompile, reverse engineer, disassemble, decompile or otherwise attempt to derive source code from Kiosked Service, related software, or documentation, or create or attempt to create a substitute or similar service or product through use of or access to Kiosked Service or proprietary material related thereto. Nothing in this Agreement shall constitute an express or implied transfer of any Intellectual Property Rights of Kiosked or any third party to you. Kiosked reserves all rights not expressly granted to you herein. You shall not remove, alter, obscure or otherwise inhibit the full display of any trademarks, service marks or copyright notices of Kiosked that Kiosked may have included in the Kiosked Service. Intellectual Property Rights shall mean any copyrights and other similar rights and related rights (including database rights, catalogue rights, performer’s rights and photographer’s rights), patents, utility models, trademarks, service marks, model rights, trade secrets, proprietary information, domain names, know-how and any other form of registered or unregistered intellectual property rights as well as any applications for any of the foregoing.
By submitting any content or material (“Publisher Material”), without limitation such as placements, to the Kiosked Service, you grant Kiosked and its affiliates a worldwide, limited, non-exclusive, fully paid-up and royalty-free right to display such Publisher Material in the Kiosked Service. You warrant that you own or have the necessary licenses and consents to submit the User Material the Kiosked Service and that the User Material is not defamatory, inaccurate, abusive, offensive, threatening, harassing, racially offensive, or illegal.
In addition, You agree that (i) any statistical data and information arising out of the use and impressions of Kiosked Service is exclusive property of Kiosked and constitutes Kiosked Confidential Material (as defined below), and (ii) any technical feedback and error reports, improvement proposals and other user feedback arising out of the use of Kiosked Service is exclusive property of Kiosked and constitutes Kiosked Confidential Material, and (iii) any user generated content related to the Kiosked Service is exclusively controlled by Kiosked and/or its service partners, as the case might be.
Kiosked takes intellectual property rights seriously and offers all rights holders a notification form for reporting alleged intellectual property infringements. The form and relevant guidelines can be found at http://www.kiosked.com/infringements-policy.
7. PRIVACY; DATA SECURITY
Kiosked disclaims any liability arising out of data security breaches, including without limitation costs, damages and losses related to unauthorised access to data by third parties or loss of data. Kiosked disclaims any responsibility for the backup/retention of any User Material submitted to the Kiosked Service.
8. TERM; TERMINATION
Either party may terminate this Agreement with or without cause by sending a written notice to the other party, such termination to be effective at the end of the calendar month following such notice. In case You have agreed on the use of Kiosked Service for a fixed period of time, the Agreement shall be effective until the end of the term that has been agreed upon, after which the Agreement will continue automatically and may be terminated in accordance with this Section. Notwithstanding the foregoing, Kiosked may at any time, in its sole discretion, terminate or suspend all or part of the Kiosked Service, terminate this Agreement, for any reason without notice.
Annual agreements are subject to consistent and qualified traffic throughout the contract term. In the event of publisher initiated early termination or significant and deliberate traffic volume reduction (more than -30% compared to previous 90 days) Kiosked shall not be liable to pay revenue shares commencing from the month the publisher initiated termination was received and/or the deliberate traffic volume reduction was detected by Kiosked.
In particular, Kiosked may for example terminate this Agreement with immediate effect, in whole or in part, if the Publisher becomes bankrupt, liquidated or insolvent or enters any proceedings in this regard which can reasonably be considered to weaken its ability to make payments or in case the Publisher materially breaches this Agreement.
Upon termination, (i) the provision of Kiosked Service shall cease immediately, and (ii) You shall return or delete all Kiosked Confidential Material. Any terms and conditions that by their nature or otherwise reasonably should survive a termination or an expiry of this Agreement shall be deemed to survive. Such terms and conditions include but are not limited to the obligations set forth in VI (Intellectual Property Rights), VIII (Termination), IX (Confidentiality), X (Indemnification), XI (Limitations of Liability), XIII (No Agency), XIV (Entire Agreement), XV (Miscellaneous).
You agree not to disclose Kiosked Confidential Material without Kiosked’s prior written consent and You agree to use it only for the purposes of this Agreement and Kiosked Service. “Kiosked Confidential Material” includes without limitation: (a) all Kiosked software, technology, programming, specifications, materials, guidelines and documentation relating to Kiosked Service; (b) statistics related to the use of Kiosked Service provided to You by Kiosked; (c) any and all information relating to other users of the Kiosked Service (including without limitation advertisers, demand providers or other publishers); and (d) any other material designated in writing by Kiosked as “Confidential” or an equivalent designation. Kiosked Confidential Material does not include material: (i) that has become publicly known through no breach by You, (ii) that is independently developed without access to Kiosked Confidential Material, as evidenced in writing; (iii) that was rightfully received by You from a third party; or (iv) to the extent required to be disclosed by law or by a governmental authority.
Publisher agrees to indemnify, defend and hold harmless Kiosked and its subsidiaries and their respective officers, directors, shareholders, corporate affiliates, agents, successors and assigns (“Kiosked Indemnified Parties”) from and against any third party claim, suit, demand or proceeding (“Claim”) against the Kiosked Indemnified Parties arising out of, related to, or alleging (i) infringement of any Intellectual Property Right of a third party by Publisher, or (ii) a violation by Publisher of any of its representations, warranties or obligations in this Agreement, including without limitation any violation or breach of any privacy obligations of Publisher.
Kiosked agrees to indemnify, defend and hold harmless Publisher and its officers, directors, shareholders, corporate affiliates, agents, successors and assigns (“Publisher Indemnified Parties”) from and against any Claim against the Publisher Indemnified Parties arising out of, related to, or alleging (i) infringement of any intellectual property right of a third party by Kiosked, or (ii) a violation by Kiosked of any of its representations, warranties or obligations in this Agreement.
In all cases in which a party seeks indemnification and/or defense hereunder, the indemnitee shall provide the indemnitor with prompt written notice of such Claim, reasonable cooperation and assistance to the indemnitor in connection with such Claims, and full control and authority to investigate, defend and settle such claims; provided, that settlements shall require prior approval by the indemnitee. If any of the Kiosked Service becomes, or in Kiosked’s opinion is likely to become, the subject of an infringement claim under this Agreement, Kiosked may, at its sole option and expense, either (i) procure for Publisher the right to continue using the applicable Kiosked Service, (ii) replace or modify the applicable Kiosked Services so that it becomes non-infringing, or (iii) solely if clauses (i) and (ii) are not commercially viable, terminate this Agreement. Notwithstanding the foregoing, Kiosked will have no obligation with respect to any infringement claim based upon (i) any use of the Kiosked Service not in accordance with this Agreement or for purposes not intended by Kiosked, (ii) any use of the Kiosked Services in combination with other products, equipment, or software not supplied by Kiosked, or (iii) any modification of the Kiosked Service by any person other than Kiosked or its authorized agents or subcontractors. THIS SECTION STATES KIOSKED’S ENTIRE LIABILITY AND PUBLISHER’S SOLE AND EXCLUSIVE REMEDY FOR INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS AND ACTIONS AGAINST KIOSKED.
11. LIMITATIONS OF LIABILITY
EXCEPT WITH RESPECT TO EITHER PARTY’S CONFIDENTIALITY OBLIGATIONS, INDEMNIFICATION OBLIGATIONS FOR THIRD PARTY CLAIMS, FRAUD, GROSS NEGLIGENCE AND WILLFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE REVENUE SHARE PAID BY KIOSKED TO PUBLISHER UNDER THIS AGREEMENT IN THE ONE-MONTH PERIOD PRECEDING THE CLAIM. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF USE, OR LOST DATA, OF THE OTHER PARTY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
Each party acknowledges that the other party has entered into this Agreement relying on the limitations of liability stated herein and that those limitations are an essential basis of the bargain between the parties.
Kiosked may use general public information and material (such as the name, trademark and/or logo) of the Publisher in its marketing of the Kiosked Service including, but not limited to, in its marketing materials, customer lists and websites, provided that Kiosked properly attributes the Publisher’s trademarks and that Kiosked’s use is lawful, appropriate and compliant with good business practices.
13. NO AGENCY
Nothing in this agreement shall be construed as creating a partnership, agency, joint venture, independent contractor or any legal entity between Kiosked and Publisher.
14. ENTIRE AGREEMENT, HEADINGS, AMENDMENTS
This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes all proposals, oral or written, all previous negotiations, and all other communications between the parties with respect to the subject matter of the Agreement. Headings and captions are for convenience of reference only and do not alter the meaning or interpretation of the Agreement.
Without any prejudice to Section 2, the Agreement may be changed only by written amendment signed by the Parties.
This Agreement shall be governed by and construed in accordance with the laws of Finland (except for its provisions on the conflict of laws/international private law).
Any dispute, controversy or claim arising out of or relating to this Agreement or the breach, termination or invalidity thereof shall be finally settled by arbitration in accordance with the Arbitration Rules of the Finland Chamber of Commerce by one (1) arbitrator appointed by the Central Chamber of Commerce. The arbitration shall be held in Helsinki, Finland. The language of the arbitration proceedings shall be English unless all the parties to such dispute are Finnish nationals or companies registered in Finland, whereupon the proceedings shall be conducted in the Finnish language.
The failure to require performance of any provision shall not affect a party’s right to require performance at any time thereafter, nor shall a waiver of any breach or default of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself. If any provision herein is held unenforceable, then such provision will be modified to reflect the parties’ intention, and the remaining provisions of this Agreement will remain in full force and effect. You may not resell, assign, or transfer this Agreement or any of Your rights hereunder. Any such attempt may result in termination of this Agreement, without liability to Kiosked. Notwithstanding the foregoing, Kiosked may assign this Agreement to any affiliate at any time without notice and otherwise as part of a sale of business. Any notices given under this Agreement shall be deemed to be effectively given (i) when delivered personally, (ii) five (5) days after being placed in the mail, postage prepaid, certified or registered mail, (iii) one (1) day after being sent via nationally recognized air courier, or (iv) upon confirmation of delivery after being sent via facsimile or email, in each case, to the recipient’s address provided to the other party or such other address as specified by the parties in writing, with a copy sent to the attention of Legal at Kiosked.