PubWise Terms of Service
Last Update: 12/12/22
PubWise (“we”, “us”, “PubWise”) is a Programmatic Technology Platform. These Terms of Service (TOS) sets forth the terms between you (“Partner” or “Publisher”) and PubWise. By accessing and using the Services, you agree to comply with and be bound by these TOS unless otherwise specified in a separate document signed by both parties. Do not use the services if you disagree with any of the terms and conditions.
1. Definitions.
“Advertisement” or “Ad” means digital advertising creative, including text, graphics, rich media, video and other companion advertisements and other advertising materials.
“Ad impression(s)” means an instance in which an Ad is served to, and received by, a unique visitor on a Partner site.
“Agreement” shall include these TOS and any documents provided which may include product terms, billing agreement, addendums, or insertion order.
“Code” means the software code that we provide to you for placement on approved sites.
“Content” means any articles, written entries, postings, messages, opinions, text, files, links, images, photos, video, sounds, works of authorship, feedback or other materials available on any of your Properties.
“Partner” means the company, individual, or Property that uses the Services. For Target Properties, (i) the owner (if not Company) of those Target Properties, (ii) the third party co-branding the Target Properties with Company, or (iii) the third party for whom Company is white labeling the Target Properties.
“Dashboard” means any reporting or use of anything within Partner login.
“Eligible Impressions” means any ads either bid on and served or bid on and rejected coming through the header bidder. It is not dependent on the number of bidders receiving requests. Example: 2 ad units with 10 bidders = 2 eligible impressions.
“Property(ies)” means Target Property, any space where a Publisher will display Ads, including but not limited to, URL(s) and all subdomains of that URL, mobile applications, CTV or OTT applications, video, and all devices and means where an Ad will be displayed from the Publisher.
“Publisher” Partner and/or Target Property.
“Service(s)” means any of the serving of advertisements, buying and selling tools, technology, services, reporting, and partners provided by PubWise.
“Target Property” means properties on which an Ad is served via the Services (i.e., web sites, consent-based email publications, approved software applications or other properties as approved by PubWise).
2. Authorization.
You may request to add any of your websites, mobile applications, blogs, network, company, and/or other Properties to the Services. We may, at our discretion, reject your request. We may remove any Property from the Services at any time with or without notice. You agree that PubWise will not be liable to you or to any third party for any modification, suspension or discontinuance. You authorize us to (i) provide the PubWise Services and (ii) use all industry standard means to monitor and ensure the quality of Ad Impressions, content, and users on the Properties served through the Services solely to provide the Services. Data collected from users on the Properties is collectively, the “Publisher Data”. The Partner retains ownership of the Publisher Data. Any Publisher Data that we aggregate with other data (including our own data and third party data relating to your Properties) for any purpose shall be referred to herein as "PubWise Data”.
3. Service Specific Terms
These TOS cover all Services that PubWise provides, including any Services listed in these TOS and Services not listed. Contracts, addendums, product terms, billing agreements, IOs or other documents may be required with other products in addition to these TOS. Should there be any conflict between the documents within an Agreement, the order of precedence is as follows; billing agreement, insertion order, product terms, these TOS. Contact info@PubWise.io to sign up or learn more about the ad ops and programmatic services; Managed Wrapper, Enterprise, demand, advertising purchasing, and other available services.
3.1 PubWise Services
These specific terms apply when using the PubWise Dashboard.
3.1a. License; Publicity.
(i). We grant you a license to use the Dashboard and include on the applicable Properties the software Code we provide to you required for us to provide the Services.
(ii) The Services and all other materials and information provided to Partner under this Agreement are owned by PubWise, and/or its third party suppliers and licensors.
(iii) Each party shall have the right to refer to and promote its business relationship with the other party in a mutually-agreed corporate press release or otherwise.
(iv) PubWise may use the Partner name and logo on promotional materials.
3.1b. Data Usage
PubWise uses aggregated analytics data to provide optimization and recommendations to customers.
4. Use of the Services.
You are solely responsible for your use of the Services (e.g., access to and use of the Account and safeguarding usernames and passwords) and the PubWise Data. Use of the Services and the PubWise Data is subject to all applicable guidelines and Policies, including, without limitation, our privacy policy available at http://admin.pubwise.io/publisher/privacypolicy (collectively, the "Policies").
5. Data.
Partner and its third party providers have the sole and exclusive right to use all data derived from Partner’s use of the Services, for any purpose related to Partner's business; provided that PubWise and/or its third party providers may use and disclose the data derived from Partner’s s use of the Services (including data collected from visitors to the Properties) solely (i) as aggregate Service statistics, which will not include personally identifiable information or information that identifies or would reasonably be expected to identify Partner or its Properties, this is also known as PubWise Data, (ii) to provide Services and enforce its rights under this Agreement, and (iii) if and as required by court order, law or governmental or regulatory agency (after, if permitted, giving reasonable notice to Partner and using commercially reasonable efforts to provide Partner with the opportunity to seek a protective order or the equivalent (at Partner’s expense)). PubWise agrees that Partner’s non-aggregated data will not be used or disclosed to any third party by PubWise or its third party providers (except as otherwise expressly permitted by this Agreement) without Partner’s written consent. Partner will not knowingly cause or permit any personally identifiable information to be provided to PubWise.
6. Restrictions.
You will not (i) use the Services or the PubWise Data except as expressly authorized herein; (ii) use the PubWise Data for any purpose other than internal analytics purposes, (iii) copy, reproduce, modify, distribute, damage, interfere with, disassemble, decompile, reverse engineer or create derivative works of the Services or the PubWise Data; (iv) breach, disable, tamper with or interfere with the proper working of the Services or the PubWise Data or develop or use (or attempt) any workaround for any security measure related to the Services or the PubWise Data; (v) use the Services in such a way that is detrimental to the system or others; or (vi) place any Content on any of your Properties that (a) infringes or misappropriates a third party's intellectual property or other proprietary rights, (b)breaches a third party's rights or privacy or publicity or (c)contains or promotes Objectionable Activity. "Objectionable Activity" means any content or activity that is (v) pornographic, illegal, fraudulent, false, deceptive, misleading, libelous, defamatory or threatening, (w) racist, hate speech or bullying, (x) adware, malware, spyware or any other malicious code or drive-by download applications (y) introducing Invalid Clicks as defined below and/or (z)"spam," mail fraud, pyramid schemes, or advice not permitted by law.
“Invalid Clicks” means engaging in any of the following: (a) Objectionable Activity as defined in section 6; (b) clicking on your own Ads or using any means (automated or manual) to inflate impressions and/or clicks artificially or otherwise generate activity not driven by bonafide human intent; (c) offering a user any inducement of any kind to generate clicks or impressions; (d) installing ad code on or within 404/error message pages, pop-over/pop-under windows, downloadable applications, software, chat windows or email (e) obscuring an advertisement or any portion thereof with other content, advertising or navigational elements. The parties will use commercially reasonable efforts to collaborate on the identification and elimination of any Invalid traffic.
7. Privacy.
Partner and PubWise must (i) maintain a privacy policy that (a) provides notice of data collection practices related to the Services and usage of the Publisher Data and PubWise Data, including without limitation, use of a cookie, web beacon or other tracking mechanisms, and (b) discloses its privacy practices and (ii) operate in accordance with all Policies and all applicable privacy and data security laws and regulations.
8. Confidentiality.
a. Scope. “Confidential Information” means all nonpublic information disclosed by or for a party in relation to this Agreement, including any communications related to the PubWise Service; any PubWise software, technology, programming, specifications, materials, guidelines and documentation relating to the PubWise Service. Confidential Information does not include any information the party receiving the information (“Receiving Party”) can demonstrate (through legally sufficient evidence) (a) was rightfully within its possession without restriction on disclosure prior to it being furnished to it by the other party; (b) is now or hereafter comes into the public domain through no act or failure to act on the part of Receiving Party; (c) is rightfully disclosed or made available to Receiving Party on a non-confidential basis by a third party having the right to disclose it without an obligation of confidentiality; (d) is independently developed by Receiving Party without reference to any Confidential Information or the participation of any person who has had access to the Confidential Information. Any summaries, compilations or extracts of Confidential Information prepared by Receiving Party shall be deemed Confidential Information and shall be subject to the terms of this Agreement. All Confidential Information furnished under this Agreement shall remain the property of the disclosing party and shall be returned by that party by Receiving Party immediately upon request.
b. Confidentiality. The Receiving Party may only disclose Confidential Information to that party’s employees, attorneys, accountants and auditors only to the extent that such persons have a need to know such information and only insofar as such persons are bound by a nondisclosure agreement including the same conditions of confidence and non-use required by this Agreement. Receiving Party will not use any part of the Confidential Information for any purpose other than for the purposes established in this Agreement. As part of this obligation, Partner agrees that Partner shall not derive any commercial benefit, whether direct or indirect, from the Confidential Information, except to the extent established in this Agreement or if such benefit may be derived from a separate written agreement between PubWise and Partner. Receiving Party shall promptly notify the other party of any unauthorized disclosure or use of Confidential Information, and shall provide all reasonable assistance to prevent or stop such disclosure or use, and/or to obtain compensation for such disclosure or use. Receiving Party shall not reverse engineer, decompile, copy or export any Confidential Information. Receiving Party shall take reasonable precautions to protect the Confidential Information including, without limitation, all precautions that the Receiving Party employs with respect to its own confidential information. Each party shall be responsible for any breach of confidentiality by its employees, agents and contractors. Neither party may disclose the terms of this Agreement without the prior consent of the other party.
c. Compelled Disclosure. Receiving Party may disclose Confidential Information to the extent necessary to comply with any applicable law, order, regulation, ruling, subpoena or order of a governmental authority or tribunal with competent jurisdiction; provided, however, that Receiving Party shall notify the other party of all such requests or requirements prior to disclosure so that party may seek appropriate protection or limitation of the disclosure, and if permissible by law, Receiving Party shall provide reasonable cooperation to PubWise and its legal counsel, in seeking such protection or limitation of the disclosure.
9. Intellectual Property Rights
Each Party agrees that it will not acquire right, title, or interest in or to the other Party’s intellectual property rights except as set forth in this agreement. The PubWise name and logo, and all related product and service names, design marks and slogans are the trademarks or registered trademarks of PubWise. All other product and service marks contained herein are the trademarks of their respective owners. Partner may not use any PubWise trademarks or logos without the prior written consent of PubWise.
10. Representation and Warranties.
Each Partner and PubWise represent and warrant to the other party that (i) it holds all rights necessary to perform its obligations hereunder and (ii) all information provided by it to the other party is complete, correct and current. You further represent and warrant that (a) you own or are otherwise authorized to use, and are solely responsible for, the Content posted on any of your Properties and (b) you hold, and hereby grant to us, all rights necessary for us to perform our obligations hereunder.
11. Indemnification.
Each party will indemnify, defend and hold harmless the other party and its agents, affiliates and licensors from any and all losses, claims, obligations, damages, liabilities, gross negligence, willful misconduct, fraudulent actions, and expenses arising from third-party claims or any government or industry investigation, including reasonable costs of investigation and reasonable attorneys' fees ("Claims") arising out of or related to (i) your use of the Services or (ii) breaches of this Agreement or allegations thereof.
12. Changes to the Services; Changes to the Agreement.
We are constantly changing and improving the Services. We may add or remove functionalities or features of the Services at any time, and we may suspend or stop a Service altogether. We may modify this TOS at any time, and will post any modifications to these TOS within the login at www.PubWise.io. The changes will be effective immediately. If you don't agree to any modified terms in the TOS, you must terminate the agreement and stop using the Services within 15 days.
13. Term; Termination.
a. Term. The term of this Agreement shall begin on the Effective Date and continue for a period of one year from the Effective Date (the “Initial Term”), and shall automatically renew for successive one (1) year terms (each a “Renewal Term”, and together with the Initial Term, collectively hereinafter referred to as the “Term”), unless and until terminated in accordance with this Agreement.
b. Termination for Convenience. Either party may terminate this Agreement for any reason by
providing the other party with thirty (30) days prior written notice unless stipulated within another document such as an addendum, billing agreement, product term, or insertion order.
c. Termination Rights. In addition to any other rights of termination provided for herein, this Agreement may be immediately terminated by a party if:
(1) the other party commits a material breach of its obligations hereunder that is not cured within ten (10) days after written notice thereof from the non-breaching party, or
(2) a petition in bankruptcy or other insolvency proceeding is filed by or against the other party, or if an application is made for the appointment of a receiver for the other party of its property, or if the other party makes an assignment for the benefit of creditors, is unable to pay its debts regularly as they become due, or ceases carrying on business in the ordinary course.
d. Effects of Termination and Survival. Upon termination or expiration of this Agreement, all
rights granted herein will revert to the granting party and all licenses will terminate, and Partner will make no further use of PubWise, or the Services. Except as otherwise provided herein, any termination or expiration of this Agreement shall be without prejudice to any other
rights or remedies a party may be entitled to under this Agreement or at law or in equity and shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision of this Agreement which is expressly or by implication intended to come into or continue in force on or after such termination or expiration. Upon termination or expiration of this Agreement, any ads sold prior to such termination or expiration will continue to be served for their remaining duration (subject to the terms of this Agreement).
e. Return/Destruction of Confidential Information. Within thirty (30) days of any termination or expiration of this Agreement, each party will return to the other party or destroy all Confidential Information of the other party.
14. Assignment. Partner may not transfer or assign this Agreement or its obligations under this Agreement, in whole or in part, without the prior written consent of PubWise (which consent will not be unreasonably delayed or withheld), except that a party may assign all of its rights and obligations under this Agreement to a successor (whether by sale, acquisition, merger, or operation of law). In addition, Partner shall be permitted to assign this Agreement to an affiliate of Partner as part of an internal reorganization. This Agreement will be binding upon and inure to the benefit of the parties and their respective permitted successors and permitted assigns. Any assignment in violation of this Section shall be void.
15. DISCLAIMERS.
YOUR USE OF ANY PUBWISE OR PARTNER SERVICES AND THE PUBWISE DATA IS AT YOUR SOLE RISK. AND IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE TERMS WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT.
16. LIMITATION ON LIABILITY.
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER OR ANY THIRD PARTY FOR (I) ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR (II) ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), IN EXCESS OF THE FEES RECEIVED BY THE PARTNER WITHIN THE PREVIOUS 6 MONTHS. THIS LIMITATION OF LIABILITY DOES NOT APPLY TO GROSS NEGLIGENCE OR TO ACTIONS BROUGHT UNDER THE SECTIONS TITLED; DATA, RESTRICTIONS, CONFIDENTIALITY, INTELLECTUAL PROPERTY RIGHTS.
YOU SPECIFICALLY ACKNOWLEDGE THAT ANY LIABILITY REGARDING ANY REGULATORY RESPONSIBILITY, SHALL REST ENTIRELY WITH THE PARTNER, INCLUDING, BUT NOT LIMITED TO, THE EUROPEAN UNION GENERAL DATA PROTECTION REGULATION, 2016/679, OTHERWISE KNOWN AS GDPR AND CALIFORNIA CONSUMER PROTECTION ACT, OTHERWISE KNOWN AS CCPA.
17. Miscellaneous.
Each party will, in all matters relating to this Agreement, act as an independent contractor. Except as expressly contemplated by this Agreement, neither party has, nor will represent that it has, any authority to assume or create any obligation, express or implied, on behalf of the other party, or to represent the other party in any capacity. If any provision of this Agreement is held to be unenforceable, the parties shall substitute for the affected provision an enforceable provision that best approximates the intent and economic effect of the affected provision. We will not be liable for any delay or failure to perform any of our obligations set forth in this Agreement due to causes beyond our reasonable control. You will not assign or transfer any rights or obligations under this Agreement without our prior written consent. Any attempted assignment or delegation in violation of this Agreement will be null, void and of no effect. This Agreement is accepted upon your use of the Services or by registering to have an Account. This Agreement (which includes our Policies, any product terms or addendums signed, and any other rules posted on our website) constitutes the entire agreement between you and us regarding the use of the Services and/or the PubWise Data. Any payments to PubWise not made within the Agreement terms can be billed with a credit card on file. Final payments may be held up to 90 days to account for any potential Invalid traffic. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. Except where otherwise indicated, any notice or communication under this Agreement shall be sent via email (i) if to you, to the email address submitted by you with your Account, and (ii) if to us, to notices@PubWise.com. The provisions under Sections 4 through 17 will survive termination of this Agreement for any reason.
18. Governing.
This Agreement shall be governed by and construed in accordance with the laws of the State of Georgia and the federal laws of the United States applicable therein. For the purpose of all legal proceedings, this Agreement will be deemed to have been performed in the state of Georgia and the courts of the State of Georgia will have jurisdiction to entertain any action arising under this Agreement. The Parties to this Agreement each hereby attorn to the jurisdiction of the courts of the State of Georgia in accordance with the foregoing and waive any objection to venue or any claim of inconvenient forum.
19. Force Majeure.
Neither party shall be liable to the other party for any delay or failure in performance under this Agreement arising out of a cause beyond its control and without its fault or negligence. Such causes may include, but are not limited to fires, floods, earthquakes, strikes, unavailability of necessary utilities, blackouts, acts of God, acts of regulatory agencies, or national disasters.