These CannBe Publisher Terms and Conditions, and any attachments referenced herein and incorporated by reference (this "Agreement"), between Cannigma Tree Ltd DBA CannBe. ("CannBe"), and you ("Publisher") govern Publisher's participation in CannBe’s ad exchange and campaign management and distribution platform (the “Platform”) and shall replace any and all prior agreements entered into by and between CannBe and Publisher.
1.1. "Action" – means as set out in Platform's database of available Creative.
1.2. "CPA" - means a campaign for which Publisher shall be paid on a Cost Per Action basis.
1.3. "CPC" - means a campaign for which Publisher shall be paid on a Cost Per Unique Click basis.
1.4. "CPM"- means a campaign for which Publisher shall be paid on a Cost Per Thousand Impressions basis.
1.5. "CPL” - means a campaign for which Publisher shall be paid on a Cost Per Lead basis.
1.6. "Creative" - means any type of advertising creative served or otherwise provided by CannBe within the Platform, including, but not limited to, buttons, banners, videos, text-links, pop-ups, and pop-unders.
1.7. "Email Lists" - means lists of email addresses of persons who have provided Publisher with their prior consent to receive emails containing Creative via electronic mail over the Internet.
1.8. "Impressions" - means the number of times Creative is served to, and received by, a unique visitor on Publisher's Properties as calculated by CannBe. [In no event may more than 5% of unique visitors for any payout calculation come from one IP Address.] Impressions that are served but are not received due to end user blocking technology or software (e.g., pop-up blocking software) shall not count towards any payout calculation.
1.9. "Properties" - means the Publisher’s websites and Email Lists.
1.10. "Unique Click" -means the number of times, as recorded by CannBe server, a person viewing Publisher's Properties, as identified by cookie or IP address, clicks on Creative, provided however, that a click on a specific Creative by a particular person shall only be counted as a Unique Click once every 1-hour period.
2. Approval of Creative
2.1. Use of the Platform and placement of Creative, is limited to the specific Properties for which Publisher applied and is subject in each case to CannBe’s prior written approval (with email being sufficient). CannBe reserves the right to withhold approval for any reason whatsoever.
2.2. Upon approval for participation in the Platform, Publisher shall have the option of placing CannBe's code (the “Code”) on its Properties and choosing from the Creative currently available on the Platform.
2.3. CREATIVE MUST BE ACCEPTED INDIVIDUALLY FOR EACH PROPERTY. NO PUBLISHER MAY PLACE CREATIVE ON ANY PROPERTY OTHER THAN THE PROPERTY FOR WHICH SUCH CREATIVE WAS ORIGINALLY INTENDED AND ACCEPTED. PUBLISHER AGREES TO REVIEW THE AVAILABILITY OF CREATIVE THAT THEY HAVE PLACED WITHIN THEIR PROPERTIES ON A REGULAR AND TIMELY BASIS.
2.4. Publisher warrants and represents that: (i) it either owns or reasonably believes that it is entitled to use the content displayed on the Properties; (ii) to the best of Publisher’s knowledge, the Properties do not contain any "virus" or other destructive programming or device that could impair or injure any data, computer system or software; (iii) to the best of Publisher’s knowledge, the content of the Properties does not violate any applicable laws or regulations, or violate the rights of any person or entity, including without limitation any intellectual property or other proprietary right, any right of privacy, or by being defamatory; (iv) the Publisher does not knowingly promote or facilitate on the Properties any activities that are illegal under applicable law or that infringe the rights of any person or entity, including without limitation the pirating of copyright works, or hacking or other unauthorized access to or modification of devices; (v) the Publisher will operate a "notice and takedown" policy that complies with applicable law (currently, for Publishers situated in the UK, the Electronic Commerce (EC Directive) Regulations 2002) in respect of unlawful activity or information on the Site of which the Publisher gains knowledge or awareness; (vi) the Publisher shall use all reasonable endeavors to ensure that Creative on the Properties does not appear on any Prohibited Content and, on notice, will use best endeavors to take down Creative, as soon as reasonably practicable, that appears on Prohibited Content; and (vii) the Publisher shall use all reasonable endeavors to ensure that inventory booked on the Creative is not re-sold or re-brokered.
3. Prohibited Activities.
3.1. Publisher acknowledges that the Properties may not contain indecent, obscene or pornographic material, hate speech, highly explosive subject matter (as determined by CannBe in its sole discretion), any illegal subject matter or activities, any other content that does not meet the Platform’s quality standards, as determined from time to time ("Prohibited Content"). Publisher represents and warrants that during the term of this agreement, any of its Properties on which it places Creative shall not contain any Prohibited Content.
3.2. Publishers may not perform the following actions without, in each case, first obtaining CannBe’s prior written approval: (i) inducing persons to click on Creative based on incentives; (ii serving Creative, or driving traffic to Creative, using any downloadable applications.
3.3. CannBe will provide a Tracker ID (as defined below) for each CPA Creative delivered to enable Publisher to run CPA campaigns and ensure that incentive rewards are allocated appropriately. PUBLISHER REPRESENTS AND WARRANTS THAT ANY TRACKING ID USED BY SUCH PUBLISHER SHALL: (i) BE ANONYMOUS; (ii) NOT INCLUDE ANY PERSONALLY IDENTIFIABLE INFORMATION; AND (iii) COMPLY WITH ALL APPLICABLE LAWS AND REGULATIONS, INCLUDING, WITHOUT LIMITATION, ALL PRIVACY LAWS AND REGULATIONS.
3.4. Except as otherwise provided in this Agreement, under no circumstances may Publisher take, copy, modify, sell, re-use, or divulge the Code or any Creative, in any manner, without CannBe’s prior written consent.
3.5. The following methods of generating visitor interest in Publisher's Properties or Creative are prohibited and may be grounds for immediate termination from the Platform, in addition to other remedies available to CannBe: (i) mailing emails to persons other that those persons who have requested to receive such emails (i.e., spamming); (ii) use of unsolicited email or inappropriate newsgroup postings to promote Publisher's Properties or Creative; (iii) autospawning of browsers; automatic redirecting of visitors; blind text links; misleading links, forced clicks; or any other method that may lead to artificially high numbers of delivered clicks; purchasing keywords from a search engine service provider that include the trademark, service mark, or brand name of the advertising client to which the applicable Creative relates, or any derivative of any such trademark, service mark, or brand name ("Advertiser Marks"), or (iv) purchasing online advertising inventory for purposes of running advertisements that include Advertiser Marks on websites or within emails.
4.1. Payment to the Publisher shall be based on either (i) the CPM, CPC, CPA, CPL or Revenue Share terms set forth on the Platform.
4.2. For the purpose of calculating the amount due to Publisher, CannBe shall use a dedicated tracking tool (the “Tracker ID”).
4.3. For campaigns which Publisher shall be paid on a fixed revenue share basis, CannBe shall pay Publisher a certain percentage of the Net Revenues generated by CannBe from Creative inserted through the Platform on the Publisher Properties (the "Revenue Share"). For the purposes of this Agreement "Net Revenue" means, with respect to any particular period of time, the amount invoiced by CannBe to advertisers with respect to Creative on the Publisher Properties, less the following deductions: (i) transaction fees, (ii) third party campaign referral fees and commissions, (iii) applicable ad serving and technology fees paid to third parties, (iv) fees paid by advertisers for training and implementation services, and (v) invalid Clicks.
4.4. CannBe reserves the right not to pay any Publisher who breaches this Agreement. CannBe will be responsible for determining, at its sole and absolute discretion, which acts and omissions violate this Agreement, and which acts include activity that is deceptive or fraudulent in nature. CannBe assumes no responsibility for paying income taxes on behalf of Publishers. Publishers assume complete and sole responsibility for any taxes owed as a consequence of Publisher’s engagement on the Platform.
4.5. CannBe shall pay Publisher the Revenue Share on a monthly basis within [sixty (60) days] of the end of such month with respect to revenue actually received by CannBe in the previous month, against a duly issued invoice.
CannBe shall have the sole responsibility in its absolute and sole discretion for calculation of statistics, including, but not limited to, Impressions, Unique Clicks, Actions and revenue generated on Publisher's Properties, as applicable. Such statistics shall be made available to Publisher through a dedicated link to CannBe’s live reporting system.
6. Use of Data.
6.2. The processing and collection of Personal Data (as defined in the DPA) which may occur in the course of the provision of the Services is regulated by the Data Processing Addendum attached hereto as Exhibit A (the “DPA”).
7. Term; Termination. This Agreement, as and if amended, shall apply to Publisher for as long as Publisher is a member of the Platform (the “Term”). Either party may terminate this Agreement at any time, for any reason whatsoever, upon written notice to the other party. Notice may be provided via e-mail or any other written means and will be effective immediately. Upon receipt of such written termination notice, Publisher must immediately remove all Creative from its Properties and cease delivery of any and all Creative.
8. Limitation of Liability. EXCEPT AS PROVIDED HEREIN WITH RESPECT TO INDEMNIFICATION, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES (EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM ANY ASPECT OF THE RELATIONSHIP PROVIDED HEREIN. IN NO EVENT SHALL CANNBE'S LIABILITY FOR ANY REASON WHATSOEVER EXCEED THE FEES PAID TO PUBLISHER BY CANNBE UNDER THIS AGREEMENT IN THE SIX (6) MONTHS PRECEDING ANY CLAIM.
9.1. Publisher is solely responsible for any liability arising out of or relating to (i) the Creative and other material set forth on Publisher's Properties; and (ii) any third party or materials which users can access through links available through the Publisher's Properties.
9.2. Publisher shall indemnify, defend and hold harmless CannBe and its officers, directors, agents, affiliates and employees from and against all claims, actions, liabilities, losses, expenses, damages, and costs (including, without limitation, reasonable attorneys' fees) that may at any time be incurred by any of them by reason of any claims, suits or proceedings: (i) for libel, defamation, violation of right of privacy or publicity, breach of contract, copyright or trademark infringement or other infringement of any third party right, fraud, false advertising, misrepresentation, product liability or violation of any law, statute, ordinance, rule or regulation throughout the world in connection with Publisher's Properties (except for Creative supplied by CannBe, unless such Creative was modified by Publisher without the express written consent of CannBe); (ii) arising out of any material breach by Publisher of any obligation, representation or warranty under this or any other agreement with CannBe; or (iii) relating to a contaminated file, virus, worm, or Trojan horse originating from Publisher's Properties (other than through Creative supplied by CannBe, unless such Creative was modified by Publisher without the express written consent of CannBe).
9.3. CannBe shall indemnify, defend and hold harmless Publisher and its officers, directors, agents, affiliates and employees from and against all third party claims, actions, liabilities, losses, expenses, damages, and costs (including, without limitation, reasonable attorneys' fees) that may at any time be incurred by any of them by reason of any claims, suits or proceedings arising out of a material breach by CannBe of any obligation, representation or warranty under this Agreement.
9.4. Any claim for indemnification hereunder shall be subject to the following provisions: (a) the indemnifying party shall be given written notice of the claim within fifteen (15) days of receipt of the demand by the indemnified party; (b) the indemnifying party shall have the right to control the defense and all negotiations relative to the settlement of any such claim; and (c) the indemnified party shall reasonably cooperate with the indemnifying party and its counsel.
10. Data Protection.
The processing and collection of Personal Data (as defined in the DPA) which may occur in the course of the provision of the Services is regulated by the Data Processing Addendum attached hereto as Annex A (the “DPA”).
11.1. Publisher acknowledges that during the performance of its obligations under this Agreement and due to its use of the Platform, Publisher may be exposed to certain information of CannBe which may reasonably be determined as proprietary or confidential, including but is not limited to, CannBe's trade secrets, business plans, strategies, methods and/or practices, computer systems architecture and network configurations, and any other information relating to CannBe that is not generally known to the public, including information about CannBe's personnel, products, customers, financial information, marketing and pricing strategies, services or future business plans (the “Confidential Information”).
11.2. Publisher agrees that it will not disclose any Confidential Information to any third-party, and that it will not use Confidential Information for any purpose not expressly permitted hereunder, provided however that Confidential Information may be disclosed pursuant to the order or requirement of a court, administrative agency or other governmental body; provided, however, that Publisher shall provide prompt written notice of such court order or requirement to CannBe, to enable CannBe to seek a protective order or otherwise prevent or restrict such disclosure, and that Publisher will disclose only such information as is legally required and will use reasonable efforts to obtain confidential treatment for any Confidential Information that is so disclosed.
11.3. The foregoing obligations shall not apply to the extent Confidential Information: (i) is known to or in the possession of Publisher prior to the disclosure of such Confidential Information to Publisher hereunder, as evidenced by the Publisher's written records; or (iii) is known or generally available to the public through no act or omission of Publisher or its officers, directors, employees, agents, consultants, attorneys or independent contractors ("Representatives") in breach of this Agreement; or (d) is made available free of any legal restriction to Publisher by a third party. Publisher shall promptly reimburse, indemnify and hold harmless CannBe and its Representatives and other persons acting on its behalf, from and against any damage, loss or expense incurred by CannBe as a result of the breach of the confidentiality provisions in this Section 11 by Publisher or its Representatives.
11.4. This Section 11 shall survive termination of this Agreement.
Publisher hereby grants CannBe a revocable, non-exclusive, worldwide, royalty-free right and license to use, reproduce and display: (i) the Publisher's logo, trademark, service mark or brand name, or any derivative thereof (the “Marks”) in connection with CannBe's sales materials and presentations and as otherwise needed to perform its obligations under this Agreement; and (ii) statistics relating to the performance of a particular advertiser or agency's Creative on the Publisher Website, to such advertiser or agency. In addition, Publisher agrees that CannBe may sublicense the foregoing rights to third party partners procuring Creative on its behalf.
Publisher recognizes that CannBe has proprietary relationships with the third-party advertisers which provide Creative via the Platform and Publisher agrees not to intentionally solicit, induce, recruit, encourage, directly or indirectly, any advertiser that is known to Publisher to be an advertising client and/or customer of CannBe (e.g., an advertiser which provides Creative via the Platform), for purposes of offering products or services that are competitive with CannBe (including the provision of advertising inventory) nor contact such advertisers for any purpose, during the term of Publisher's participation in the Platform and for the 90-day period following termination of such participation, provided however, that the foregoing restriction shall not apply to advertisers with whom Publisher can prove (upon CannBe's written request), using documented evidence, Publisher already had a relationship prior to the placement of advertising on Publisher's Properties.
14. Representations and Warranties.
14.1. Publisher represents and warrants that (i) all content, products, and services on its Properties are legal to distribute, that it owns or has the legal right to use any and all copyrighted material and (ii) it will conduct its business and fulfill its obligations under this Agreement in compliance with all applicable laws, rules and regulations.
14.2. CannBe represents and warrants that it (i) has all necessary licenses and clearances to use the content contained in the Creative and (ii) will comply with at all times, all applicable laws, rules and regulations relevant to the performance of its obligations under this Agreement.
14.3. EXCEPT AS EXPRESSLY SET FORTH HEREIN, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES (INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT), GUARANTIES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN OR OTHERWISE.
15.1. CannBe reserves the right to change any of the terms and conditions of this Agreement at any time. Publishers are responsible for complying with any changes to this Agreement within ten (10) business days from the date of change. CannBe will post notice that changes have been made to this Agreement at: [insert url].
15.2. CannBe reserves the right to withhold payment and take appropriate legal action to recover damages against any Publisher that breaches the terms of or breaches the representations and warranties set forth in this Agreement, or commits fraud against CannBe.
15.3. The relationship between CannBe and Publisher will be governed by, and construed in accordance with, the laws of [England and Wales], without giving effect to principles of conflicts law. Each party hereby irrevocably consents to the exclusive jurisdiction of the courts of [London, England] in connection with any action arising between the parties.
15.4. If any provision of this agreement shall be held or made invalid or unenforceable by a court decision, statute, rule or otherwise, the remaining provisions of this agreement shall not be affected thereby and shall continue in full force and effect. Any waiver (express or implied) or delay by CannBe of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.
15.5. This Agreement, as and if amended, shall constitute the entire understanding between the parties regarding Publisher's participation in the Platform, and shall supersede all previous communications, representations or agreements, whether written or oral between the parties.
15.6. Neither party will be liable for delay or default in the performance of its obligations under this Agreement if such delay or default is caused by conditions beyond its reasonable control, including but not limited to, fire, flood, accident, earthquakes, telecommunications line failures, electrical outages, network failures, acts of God, or labor disputes. To the extent that a force majeure has continued for five (5) business days, either party may terminate the Agreement without penalty.