MASTER SERVICE AGREEMENT FOR PUBLISHER

This Master Service Agreement for Publisher along with the Service Order executed between Dynaton and Publisher (collectively, the “Agreement”) is effective as of the Effective Date. In consideration of the foregoing, the parties hereby agree as follows:

1. DEFINITIONS

Account” means the account which the Publisher shall register for the Service.

Ads” or “Advertising” means any type of advertising material or content, in any format and however delivered, together with related code and other material used for the placement and display of such material or content on Sites.

Ad Inventory” or “Ad Slots” means any space made available on Sites for purchase through the Service for the display of Advertising.

Ad Server Fee” or “Dynaton Fee” means a fee which is applicable, due and payable by the Publisher if the Publisher utilizes the Dynaton Ad Server (“Dynaton Platform”), for the purposes of serving Publisher or third-party advertisements through Dynaton. Dynaton Fee is:

  1. not applicable for any impressions served via the Marketplace,
  2. calculated by dividing the number of ad impressions delivered through Dynaton that month by one thousand (1,000), and multiplying that quotient by the applicable CPM.

Agreement” means this Master Service Agreement for Publisher, the Platform Guidelines and any other documents which are incorporated hereto, entered into between the Parties.

Applicable Data Protection Law” means any and all applicable privacy and data protection laws (including, where applicable, EU Data Protection Law) as may be amended or superseded from time to time.

Buyer” or “Advertiser” or “Client” or “Brand” or “Marketer” or “Demand Partner” means any party engaged in purchasing or facilitating the purchase of Ad Inventory through the Service, including any ad network, ad exchange, demand-side platform, agency trading desk, ad agency, or provider of goods or services advertised and any representative thereof.

Claim” means any and all damages, losses, and liabilities resulting from any third-party claim, allegation, or legal action.

Publisher Data” means any information owned or provided by or on behalf of Publisher or processed by Dynaton on Publisher’s behalf through providing the Service, in any form, format or media (including, but not limited to, paper, electronic and other records), which Dynaton has access to, obtains, uses, maintains or otherwise handles in connection with the performance of the Service, including, without limitation, partial copies thereof. Publisher Data includes User Data.

Confidential Information” means all information disclosed by the Discloser to the Recipient (in writing, orally or in any other form) that is designated, at or before the time of disclosure, as confidential, or provided under circumstances reasonably indicating that the information is confidential, including, without limitation, trade secrets, customer lists, business plans, technical data, product ideas, personnel, contract and financial information. Confidential Information shall include the existence and terms of this Agreement and the fact that negotiations may be ongoing between the Parties regarding the Services to be performed under this Agreement.

Cookies” mean cookies, pixels, beacons, locally stored objects, or other similar technologies.

Discloser” means a Party disclosing the Confidential Information to the Recipient.

Data Monitoring Fee” or “DMF” means the data monitoring fee which is to ensure that all requests are measured for validity and viewability. The DMF will be accrued monthly and included in billing summaries as an individual line item. The fee accrual will be based on the total number of Inventory Requests less ad impressions served. Dynaton’s reporting will be the data of record. If the aggregate fill rate per whole Account is one percent (1%) or higher per calendar month, DMF in a particular calendar month will be waived.

EEA” means the European Economic Area.

Effective Date” means the date set forth in the Service Order.

EU Data Protection Law” means:

  1. prior to 25 May 2018, the EU Data Protection Directive (Directive 95/46/EC);
  2. on and after 25 May 2018, the EU General Data Protection Regulation (Regulation 2016/679);
  3. the EU e-Privacy Directive (Directive 2002/58/EC); and
  4. any national data protection laws made under or pursuant to (a), (b) or (c).

Inventory Requests” means Publisher requests to Dynaton.

Minimum Usage Fee” means a monthly fee to access the Dynaton’s platform.

Net Revenue” or “Dynaton Net Revenue” means fees actually collected by Dynaton from its Buyers that served on Publisher’s Inventory through Dynaton Marketplace (“Dynaton”), less any bid reductions, operating fees, fraud, fraud prevention costs, charge backs, clawbacks, refunds, uncollected amounts, credit card processing fees and other reasonable deductions.

Platform Guidelines” means, collectively:

  1. any specifications, technical documentation, or integration requirements made accessible to Publisher by Dynaton in connection with Dynaton’s technology; and
  2. requirements, prohibitions, and guidelines applicable to Publisher’s integration with or use of the Service as instructed by Publisher or a third party, as updated from time to time, which are made available to Publisher via the user interface of the Service, and attached hereto.

Parties” mean a Publisher and Dynaton together.

Party” means a party to this Agreement – a Publisher or a Dynaton.

Permitted Purpose” means the purpose of selling Ads and to improve Ad targeting across its network of participating publishers.

Prohibited Action” examples are:

  1. providing, delivering, or perpetuating through the Dynaton Materials any malicious code;
  2. generating reported actions through any invalid means, or
  3. otherwise deploying or facilitating invalid means in Publisher’s use of the Service.

Prohibited Content” means any content or material, other than bona fide editorial content or material, that:

  1. violates any applicable law, rule, or regulation;
  2. promotes violence, discrimination, hatred, copyright protection circumvention, unlawful subject matter or activities, or peer-to-peer applications, networks or sites;
  3. violates any Intellectual Property Right or other proprietary, privacy, contract, or legal right of any third party; or
  4. is defamatory, libelous, deceptive, pornographic or sexually explicit.

Recipient” means the Party receiving the Confidential Information from the Discloser.

Revenue Share” means the amount resulting from applying the percentage to the Dynaton Net Revenue.

Security Incident” means (i) accidental or unlawful destruction of User Data, or (ii) loss, alteration, unauthorized disclosure of, or access to, the User.

Seller” or “Supply Partner” or “Publisher” or “Publishing Partner” means any party engaged in selling or facilitating the selling of Ad Inventory through the Service, including any ad network, ad exchange, supply-side platform, trading desk, or provider of content or any representative thereof.

Service” means each Dynaton’s product, platform, or service provided or made accessible to the Publisher in accordance with this Agreement.

Set Up Fee” means a one-time payment charged from new Publisher for creating and setting up an Account for it.

Site(s)” means websites, mobile websites, applications, mobile applications, connected television, players, games, portals, or devices.

Taxes” means any sales, use and other taxes or duties, however designated.

Threshold” means the amount of payment from Dynaton to the Publisher for any given pay period which is less than One Hundred United States Dollars ($100.00)

Dynaton Materials” means the Service and the underlying technology, as such may be modified, upgraded, and/or enhanced from time to time, together with all intellectual property rights therein.

User Data” means all information and data about users of Publisher’s Sites (which may include personal data) made available or disclosed by Publisher to Dynaton or collected by Dynaton on behalf of Publisher.

SERVICES

Dynaton may alter and/or discontinue the Services from time to time. Services consists of:

  1. Dynaton Platform which allows the Publisher to serve Publisher’s or third party’s advertisements from the Publisher’s Buyers that Publisher makes available for display on the Sites that Publisher designates, based upon the criteria selected by Publisher or Publisher’s Buyers/advertisers via the Dynaton Platform;
  2. Dynaton allows the Publisher as a seller to offer and sell Publisher’s available ad inventory to advertisers who are Buyers in the Dynaton platform who desire to display and serve their ads on the Sites (Publisher’s websites and apps) that Publisher designates, based upon the selling criteria selected by the Publisher via Dynaton;

FEES & PAYMENTS

  1. Dynaton will pay to the Publisher the Revenue Share amount indicated in the Service Order within sixty (60) days after the last day of the calendar month in which the applicable Dynaton Net Revenue was received. 
  2. For Threshold cases Dynaton reserves the right to roll such payment over month to month until such time as the payment due by Dynaton reaches the Threshold, at which time Dynaton will make the applicable payment to the Publisher.
  3. Dynaton reserves the right to deduct from any payments due or payable to the Publisher any amounts that have remained uncollected by Dynaton from the Buyers/Advertisers. All payments of Revenue Share, whether payable or already paid, shall be subject to withholdings and/or deductions based on Dynaton’s assessment of variables such as Invalid Activity and errors, fraud, and other Invalid Activity. Dynaton shall be the sole determiner of what constitutes a variable that qualifies for recouping hereunder. Dynaton agrees to provide documentation where available for recouped payments, including, but not limited to traffic and click counts, Publisher’s SUBID, and Buyer’s/Advertiser’s feedback.
  4. Dynaton reserves the right to charge Set Up Fee from a new Publisher in the amount indicated in the Service Order (if applicable). Publisher agrees to pay Minimum Usage Fee per calendar month. However, if the Publisher’s Dynaton Platform and Data Monitoring Fees in total exceed the amount of Minimum Usage Fee indicated in the Service Order (if applicable), Minimum Usage Fee in a particular calendar month will be waived.
    If Publisher elects to utilize any of these options, then after the end of each calendar month, Dynaton will report to Publisher all Dynaton Platform (if applicable) in such month, as well as Set Up Fee and Minimum Usage Fee (if applicable), and invoice Publisher the combined amount of all fees due for such month. Dynaton’s invoice will be due and payable sixty (60) days after the end of the calendar month in which such fees occurred.
  5. If Publisher does not raise any issues in writing about the Monthly Statement within thirty (30) days of receipt, Publisher will forfeit its right to do so.  Publisher acknowledges that all numbers displayed in any other reporting apart from the Monthly Statement made available by Dynaton are estimates and do not represent valid numbers for billing purposes.
  6. All fees hereunder shall be denominated in U.S. dollars and paid by check or wire transfer to an account to be designated by Dynaton, or by other means expressly agreed to in writing by the parties.
  7. All amounts payable hereunder are exclusive of Taxes. Publisher shall be solely responsible for payment of any Taxes on Publisher Earnings, except for those taxes based on the income of Dynaton. Each party agrees to cooperate in good faith with respect to reasonable requests from the other party regarding Tax-related forms, documentation or other information relating to this Agreement that may be necessary or appropriate.
  8. If Publisher is not current on payment of Dynaton Platform, Ad Hosting or Data Monitoring Fees, Dynaton has the right to withhold an equivalent amount from the Dynaton Revenue Share.
  9. All reported numbers for purposes of billing and general delivery reporting are based on counts within Dynaton or as provided in writing by Dynaton in the form of month-end statements.
  10. Wire Transfer Instructions: Include account holder’s name, bank routing number, account number, SWIFT code (if applicable), bank address and telephone number.

PUBLISHER OBLIGATIONS

  1. Publisher shall:
    1. provide only accurate and up to date information in the Account,
    2. will keep its Account and password secure,
    3. be responsible for all activities that occur under its Account,
    4. comply with the Platform Guidelines,
    5. not engage in any Prohibited Actions,
    6. ensure that Publisher’s Sites or Ads shall not contain Prohibited Content.
    7. follow all applicable industry laws including but not limited to Applicable Data Protection Law, consumer protection laws and laws protecting children,
    8. not resell, reverse engineer, decompile, disassemble, create derivative works or use the Dynaton Materials to build a competitive product or service.
  2. Publisher may access and use the Dynaton Materials solely for the purposes of using the Service and performing its obligations under this Agreement, and solely in accordance with applicable Platform Guidelines.

INTELLECTUAL PROPERTY

  1. Each Party shall own and retain all right, title, and interest in its trade names, logos, trademarks, service marks, trade dress, internet domain names, copyrights, patents, and trade secrets and content currently used or which may be developed and/or used in the future.
  2. All ownership rights, title, and interest in and to any Dynaton Materials will remain with and belong exclusively to Dynaton. Dynaton reserves all rights not expressly granted to the Publisher herein.
  3. Publisher may, in its sole discretion, provide Dynaton with suggestions or other feedback regarding any Dynaton Materials, which Dynaton may freely incorporate into the Dynaton Materials or otherwise use in its discretion, without payment of any royalty or any duty to account to the Publisher.
  4. Neither Party may use the other Party’s name and/or logo without the prior consent of the other Party in each instance.

CONFIDENTIALITY

  1. Confidential Information does not include information or material that:
    1. is now, or hereafter becomes, through no act or failure to act on the part of the Recipient, generally known or available;
    2. is or was known by the Recipient at or before the time such information or material was received from the Discloser, as evidenced by the Recipient’s tangible (including written or electronic) records;
    3. is furnished to the Recipient by a third party that is not under an obligation of confidentiality to the Discloser with respect to such information or material; or
    4. is independently developed by the Recipient without any breach of this Agreement, as evidenced by the Recipient’s contemporaneous tangible (including written or electronic) records.
  2. Each Party shall take all reasonable measures to protect the confidentiality of the other Party’s Confidential Information in a manner that is at least as protective as the measures it uses to maintain the confidentiality of its own Confidential Information of similar importance.
  3. Recipient shall hold Confidential Information in strict confidence and shall not disclose, copy, reproduce, sell, assign, license, market, transfer or otherwise dispose of such information, or give or disclose such information to third parties, or use such information for any purposes whatsoever other than as necessary in order to fulfill its obligations or exercise its rights under this Agreement.
  4. Notwithstanding the foregoing, Recipient may disclose the other Party’s Confidential Information:
    1. to employees, consultants, accountants, financial advisors and attorneys that have a need to know such information, provided that Recipient shall advise each such employee, consultant, accountant, financial advisor and attorney of their obligations to keep such information confidential and shall require that each such employee, consultant, accountant and financial advisor sign a written nondisclosure agreement consistent with the confidentiality and nondisclosure provisions herein (it being understood that each such attorney shall not be obligated to sign a separate nondisclosure agreement), and
    2. to the extent Recipient is legally compelled to disclose such Confidential Information, provided that Recipient shall give advance notice of such compelled disclosure to the other Party, and shall cooperate with the other Party in connection with any efforts to prevent or limit the scope of such disclosure and/or use of the Confidential Information.
  5. Notwithstanding the cessation of discussions, or the successful completion of a potential business relationship, Confidential Information shall remain confidential pursuant to the terms and provisions of this Agreement for a period of 5 years from the date of its disclosure by the Discloser to the Recipient under this Agreement.

 PRIVACY

  1. Each Party agrees to post on its Sites a privacy policy, and if the Publisher is selling Ad Inventory in an application(s) Publisher agrees to include within the application a link to a privacy policy, that complies with Applicable Data Protection Law, including the disclosure of all applicable User Data collection, use and disclosure practices.
  2. Dynaton uses Cookies for purposes of targeting individual end users with advertisements. Publisher shall ensure that appropriate notice and consent mechanisms as may be required by Applicable Data Protection Law are displayed upon Publisher’s Sites from which the User Data is collected or made available so that Dynaton can serve Cookies lawfully through such Publisher’s Sites in order to provide the Service under this Agreement.
  3. Upon request, Dynaton shall provide the Publisher with such information as Publisher may reasonably require about Dynaton’s Cookies so that the Publisher can ensure that such notice is provided. Dynaton shall not use Cookies to collect data from any individual who has opted-out of Dynaton’s Cookies. In particular, Publisher’s privacy policies on its Sites will contains the following language (or similar), including a conspicuous link to a functional opt-out page:“We use third-party advertising companies to serve ads when you visit our Web site. These companies may use information (not including your name, address, email address or telephone number) about your visits to this and other Web sites in order to provide advertisements about goods and services of interest to you. If you would like more information about this practice and to know your choices about not having this information used by these companies, click here (http://www.networkadvertising.org/managing/opt_out.asp).
  4. If Publisher is buying or selling Ad Inventory through the Service directly or indirectly on behalf of any third party, Publisher will ensure that such third-party places on its respective website(s) an up-to-date and accurate privacy policy that complies with this Section.
  5. The Parties acknowledge that Publisher will disclose or make available User Data to Dynaton for the Permitted Purpose.
  6. Publisher is a controller of the User Data and Dynaton will process the User Data as a separate and independent processor for the Permitted Purpose. In no event will the parties process the User Data jointly as joint controllers. The terms “controller”, “processor” and “process” as used in this Section regarding “Data Protection” shall have the meanings attributed thereto under Applicable Data Protection Law.
  7. Each Party shall be individually and separately responsible for complying with the obligations that apply to it as controller and processor, as the case may be, under Applicable Data Protection Law.
  8. Dynaton will not disclose the User Data to any third party without Publisher’s prior written consent except:
    1. for the Permitted Purpose;
    2. as otherwise permitted pursuant to this Agreement; or
    3. where required by applicable law.
  9. Dynaton shall implement appropriate technical and organizational measures to protect the User Data from a Security Incident. In the event that Dynaton suffers a confirmed Security Incident that impacts the User Data, it shall notify the Publisher without undue delay and cooperate in good faith with the Publisher to agree and action such measures as may be necessary to mitigate or remedy the effects of the Security Incident.
  10. Dynaton may appoint third party processors to process User Data for the Permitted Purpose, provided that such processors:
    1. agree in writing to process User Data in accordance with Dynaton’s documented instructions;
    2. implement appropriate technical and organizational security measures to protect the User Data against a Security Incident; and
    3. otherwise provide sufficient guarantees that they will process the User Data in a manner that will meet the requirements of Applicable Data Protection Law.
  11. Where EU Data Protection Law applies, Dynaton shall not process any User Data (nor permit any User Data to be processed) in a territory outside of the EEA unless it has taken such measures as are necessary to ensure the transfer follows EU Data Protection Law.
  12. Publisher shall inform Dynaton (and shall keep Dynaton informed) if any of the Publisher’s Sites are directed towards children under the age of sixteen. In such event, the Publisher acknowledges that Dynaton may elect not to sell Ads on such child-directed Publisher’s Sites.
  13. This Section shall survive termination or expiry of this Agreement. Upon termination or expiry of this Agreement each Party may continue to process the User Data provided that such processing complies with the requirements of this Section and Applicable Data Protection Law.

REPRESENTATIONS AND WARRANTIES

  1. Each Party represents and warrants to the other Party that:
    1. such Party has the required power and authority to enter into this Agreement and to perform its obligations hereunder,
    2. the execution of this Agreement and performance of its obligations thereunder do not and will not violate any other agreement to which it is a party; and
    3. this Agreement constitutes a legal, valid and binding obligation when signed by both Parties.
  2. Each Party shall comply with all applicable laws, rules, and regulations in performing its respective obligations and exercising its rights under this Agreement, including, without limitation, Applicable Data Protection Law and any and all applicable laws with respect consumer protection and the protection of children (i.e., COPPA).
  3. Publisher represents and warrants to Dynaton that: (a) each Publisher Property that displays advertisements via the Dynaton Services shall: (i) neither violate any applicable laws or regulations, nor contain Prohibited Content, and (ii) properly categorize the inventory type for the site ID of the Publisher Property in accordance with Dynaton’s then current guidelines; (b) it will not, and will not permit any third party to, directly or indirectly (i) access, launch or activate the Dynaton Services through or from, or otherwise incorporate the Dynaton Services in, any software application, website or other means other than the Publisher Properties, (ii) transfer, sell, lease, syndicate or otherwise sublicense the Dynaton Services, (iii) generate queries, or impressions of or clicks on ads, through any automated, deceptive, fraudulent or other invalid means, (iv) encourage or require end users or any other persons, either with or without their knowledge, to click on the advertisements displayed through the Dynaton Services through offering methods that are manipulative, deceptive, malicious or fraudulent, or (v) pass any data to Dynaton that could be used to personally identify any person without obtaining such person’s consent to pass such data to Dynaton (including, without limitation, any personally-identifiable information or personal data passed via custom key-values or other parameters); and (c) it has and will maintain throughout the Term all rights, authorizations and licenses (including without limitation any copyright, trademark, patent, publicity or other rights) that are required with respect to the Publisher Properties and to permit Dynaton to provide the Dynaton Services to Publisher as contemplated under this Agreement.
  4. EXCEPT AS EXPLICITLY SET OUT IN THIS AGREEMENT, BOTH PARTIES DISCLAIM ALL WARRANTIES (EXPRESS OR IMPLIED) WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY IMPLIED REPRESENTATION, TERM OR WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE GENERALITY OF THE ABOVE AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Dynaton MAKES NO REPRESENTATION OR WARRANTY AS TO ANY AD OR CONTENT OR LEVEL OR RESPONSE OR ANY BENEFIT OR REVENUES THAT THE PUBLISHER (OR PUBLISHER’S USERS) WILL OBTAIN FROM ITS USE OF THE SERVICE, AND DYNATON DOES NOT REPRESENT OR WARRANT THAT THE SERVICE WILL BE ALWAYS AVAILABLE OR ERROR-FREE.

INDEMNIFICATION

  1. Dynaton shall indemnify the Publisher against a Claim arising from or in connection with:
    1. any proven breach by Dynaton of its obligations, representations and warranties under this Agreement,
    2. any proven fact that the Dynaton Materials infringe or misappropriate third party’s intellectual property or other rights by reason of the use of the Dynaton Materials by the Publisher as permitted hereunder.
  2. In the event a Claim under this sub-section is made or, in Dynaton’s reasonable opinion, is likely to be made, Dynaton may, at its sole option and expense:
    1. procure for the Publisher the right to continue using the Dynaton Materials that are the subject of such Claim, or
    2. replace or modify the Dynaton Materials that are the subject of such Claim to be non-infringing without material decrease in functionality.
  3. If the foregoing options are not reasonably practicable, Dynaton may terminate this Agreement.
  4. Publisher shall indemnify Dynaton, its affiliates and each of its and their officers, directors, employees, and agents (each, an “Dynaton Indemnified Party”) from and against any and all damages, losses, and liabilities from any Claim arising from or in connection with:
    1. any breach by Publisher of its obligations, representations and warranties under this Agreement,
    2. any Claim that the content on Publisher’s Sites infringes a third party’s intellectual property right.
  5. The indemnified Party must:
    1. promptly notify the indemnifying Party of any Claim, provided that failure or delay in providing notice shall not relieve a Party of its indemnification obligations except to the extent actually prejudiced thereby,
    2. reasonably cooperate with the other Party in connection with such Claim at the expense of the indemnifying Party, and
    3. tender to the indemnifying Party the sole and exclusive authority to defend and/or settle any such Claim; provided that indemnifying Party will not, without the indemnified Party’s prior written consent, which shall not be unreasonably withheld or delayed, enter into any settlement of a Claim that:
      1. imposes a monetary obligation on indemnified Party that is not covered by the indemnification,
      2. imposes a material, non-monetary obligation on indemnified Party or materially increases the indemnified Party’s costs or risk,
      3. does not include an unconditional release of indemnified Party, or
      4. admits liability on the part of the indemnified Party.

 EXCLUSION AND LIMITATION OF LIABILITY

  1. EXCEPT WITH RESPECT TO EITHER PARTY’S CONFIDENTIALITY, INDEMNIFICATION AND PAYMENT OBLIGATIONS, PUBLISHER’S BREACH OF SECTION 6, OR FRAUD AND WILLFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE DYNATON FEE DUE UNDER THIS AGREEMENT IN THE SIX-MONTH PERIOD PRECEDING THE CLAIM. EXCEPT WITH RESPECT TO PUBLISHER’S BREACH OF SECTION 6, 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, NOR SHALL DYNATON BE LIABLE FOR THE ACTS OR OMISSIONS OF PUBLISHER’S DEMAND PARTNERS OR CLIENTS, PUBLISHER’S ACTIVITIES WITH RESPECT TO OTHER PUBLISHERS WHO USE THE DYNATON SERVICES, OR ANY THIRD-PARTY SERVICE PROVIDERS OF DYNATON OR PUBLISHER.
  2. Dynaton shall not have any liability arising from any agreement between Publisher and any Buyer or from any Ads. The provisions of this section fairly allocate the risks under this Agreement between the Parties, and the parties have relied on the limitations set forth herein in determining whether to enter into this Agreement and shall apply notwithstanding any provision of this Agreement to the contrary and regardless of the form of action.

TERMINATION

  1. Either Party may terminate this Agreement with 60 days’ notice to the other Party. Dynaton may limit and/or suspend Publisher’s access to and use of the Service (including ceasing purchase, sale, delivery, or serving of Ads or Ad Inventory) terminate this Agreement at its sole discretion effective immediately if Dynaton has a basis to suspect that:
    1. the Publisher is engaging in a Prohibited Action;
    2. Publisher’s Sites or Ads contain Prohibited Content;
    3. Publisher is violating the terms of this Agreement;
    4. Publisher is violating any applicable law or regulation;
    5. Publisher’s use of the Service is likely to cause harm to Dynaton’s other customers, or end users of Sites or their data, devices, or systems.
  2. Dynaton will use commercially reasonable efforts to provide the Publisher with notice prior to any limitation or suspension, but in any event will notify Publisher promptly thereafter.
  3. Upon termination of this Agreement for any reason, all rights granted hereunder and all obligations of Dynaton to provide the Service shall immediately terminate. Notwithstanding the foregoing, the definitions and obligations of the Parties contained in this Agreement regarding proprietary rights ownership, confidentiality, legal and regulatory compliance (including privacy and data), indemnities, any accrued unpaid payment obligations set forth in this Agreement, and any other provisions that are, by their nature, intended to continue beyond the termination of this Agreement, shall survive termination of this Agreement.
  4. Neither Party shall be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control, including, without limitation, earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared) or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree.

MISCELLANEOUS

  1. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original instrument, but all of which together shall constitute only one and the same instrument. Execution and delivery of this Agreement by exchange through a service such as EchoSign or DocuSign bearing the electronic signature of a Party, or .pdf bearing electronic or handwritten signatures hereto, shall constitute a valid and binding execution and delivery of this Agreement by such Party. Such copies shall constitute enforceable original documents.
  2. For greater certainty, pursuant to any applicable laws, rules or regulations, including without limitation the US Electronic Signatures in Global and National Commerce Act, P.L. 106-229 or other similar statutes, and to the maximum extent permitted by applicable law, Publisher HEREBY AGREES TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS, AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES, AND RECORDS OF TRANSACTIONS. Further, and to the maximum extent permitted by applicable law, Publisher hereby waives any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by any means other than electronic means.
  3. This Agreement may not be amended or modified, in whole or part, except by a writing signed by duly authorized representative of each Party.
  4. No provision or part of this Agreement or remedy hereunder may be waived except by a writing signed by a duly authorized representative of the Party making the waiver. Failure or delay by either Party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
  5. Nothing in this Agreement shall be construed to place the Parties hereto in an agency, employment, franchise, joint venture, or Publishership relationship. Except as provided herein, neither Party will have the authority to obligate or bind the other in any manner, and nothing herein contained shall give rise or is intended to give rise to any rights of any kind to any third parties.
  6. In the event that any provision of this Agreement is found to be unenforceable, such provision will be reformed only to the extent necessary to make it enforceable, and such provision as so reformed will continue in effect, consistent with the intent of the Parties as of the Effective Date.
  7. The provisions of this Agreement have been examined, negotiated and revised by counsel for each Party, and no implication shall be drawn against any Party hereto by virtue of the drafting of this Agreement. This Agreement shall not be construed against any Party by reason of its drafting, preparation, or means of acceptance.
  8. This Agreement shall be construed and interpreted under the laws of the State of California without giving effect to California’s principles of conflict of laws, and the parties hereby submit to the exclusive jurisdiction of, and waive any venue objections against the state and federal courts located in Santa Clara County, California in any dispute arising under or in connection with this Agreement.
  9. All notices under or related to this Agreement will be in writing, will reference this Agreement and shall be given by certified mail, by facsimile or other means of electronic communication (including email) or delivered in person. Notice to Dynaton by email will only be deemed given if sent to: legal@dynatondata.com. Otherwise, the address for notice for each Party shall be the address set forth on the front page of the Master Service Agreement for Publisher. Any notice shall be deemed to be received, if mailed on the day such mail is delivered by the post office or other applicable delivery service, if sent by facsimile or other means of electronic communication, on the business day following the sending, or if delivered in person at the time it is delivered.
  10. In the event of any conflict or inconsistency between provisions or components of this Agreement, as may be amended from time to time, the order of precedence shall be: (a) any specific agreement, order form, schedule, or amendment pertaining to a specific component of the Service, (b) this Master Service Agreement for Publisher.
  11. Neither Party may assign this Agreement, or sublicense any of the rights granted herein, in whole or in part, without the prior written consent of the non-assigning Party, which consent will not be unreasonably withheld by the non-assigning Party. Notwithstanding the foregoing, either Party may assign this Agreement without such consent:
    1. to a person or entity that directly or indirectly controls, is controlled by or is under common control with such Party, and
    2. in connection with a merger, reorganization or sale of a substantial part of the assets or business to which this Agreement relates.
  12. Subject to the foregoing limitation, this Agreement will be binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and assigns. Any attempt by either Party to assign or transfer any of the rights, duties or obligations of this Agreement in violation of the foregoing shall be void.
  13. This Master Service Agreement for Publisher along with the Service Order and any schedules and/or amendment hereto, executed by authorized representatives of both parties constitutes the entire agreement between the Parties regarding the subject matter contained herein and therein and supersedes and replaces all prior or contemporaneous understandings or agreements between the Parties, written or oral, regarding such subject matter. If there is any discrepancy between this Master Service Agreement for Publisher and the Service Order, the Service Order shall prevail.
  14. This Agreement may only be amended by a written document executed by both parties.
  15. Dynaton and Publisher confirm their mutual agreement to this Master Service Agreement for Publisher as of the Effective Date.
  16. Any reference in this Agreement to any statute or statutory provision is a reference to that statute or statutory provision as amended and in force from time to time and to all orders, regulations, instruments or other subordinate legislation made under the relevant statute.

SCHEDULE A

PLATFORM GUIDELINES

“We”, “us” and “our” means Dynaton. “You” and “your” means Publisher.

If you choose to use Dynaton Services you are required to adhere to the following policies and guidelines, when applicable. If you fail to comply, we reserve the right to disable your account. Please note that we may change our policies and guidelines at any time, and it is your responsibility to keep up to date with and adhere to the effective version hereof.

Publishers using the Service are required to have and abide by an appropriate privacy policy.

You must comply with any applicable third-party terms, policies, guidelines, etc. that apply to your ads, apps, sites, distribution, data handling and business practices.

You are prohibited to monetize your content with Dynaton if it contains or does any of the following:

  1. infringes any copyright, trade secret, trademarked, right of publicity, right of privacy, moral right, or other intellectual property right of any third party;
  2. any obscene or pornographic material or adult material;
  3. violent content, content that promotes discrimination racial intolerance, or advocacy against any individual, group, or organization;
  4. any content that is misrepresentative, defamatory, libelous, or that violates any applicable law or regulation;
  5. any content that is illegal or promotes illegal activity (gambling, drugs, sales or promotion of weapons or ammunition, etc.);
  6. a spyware, malware, virus, worm, Trojan horse, or other component harmful to any network or equipment.
  7. any content that Personal and confidential information;
  8. content related to compensation programs where users are encouraged to click on ads or offers, perform searches, surf websites, read emails, or similar activities;
  9. excessive, repetitive, or irrelevant keywords in the content or code of web pages; and
  10. any page that is “under construction”.

You will comply with the following content placement policies:

  1. page content must not obstruct any portion of the ad displayed;
  2. no content may be placed on any non-content-based pages;
  3. no content may be served on any downloadable applications;
  4. no content may be placed behind a registration system without prior written approval from Dynaton;
  5. no content may be placed on pages published specifically for the purpose of showing ads, whether or not the page content is relevant;
  6. no video content may be placed in in-stream video players without content or disabled playback; and
  7. no auto-refresh video content.

We may use proprietary and third-party tools to block Ad Inventory that contains certain categories of content. These categories include, but may not be limited to the following:

Abused Drugs; Adult Content; Bot Networks; Dynamic DNS; Elevated Exposure; Freeware and Software Download; General Email; Hacking; Parked Domain; Pay-to-Surf; Peer-to-Peer File Sharing; Phishing and Other Frauds; Potentially Damaging Content; Racism and Hate.

MASTER SERVICE AGREEMENT FOR PUBLISHER