This TrialPay Publisher Agreement ("Agreement") is made and entered into as of the date of your affirmative acceptance of this Agreement (the "Effective Date") by and between TrialPay, Inc. (a wholly-owned indirect subsidiary of Visa Inc.), with its principal place of business located at 900 Metro Center Blvd., Foster City, CA 94404, USA ("TrialPay") and the legal entity on whose behalf you are registering a TrialPay publisher account ("Publisher"). Publisher hereby engages TrialPay to provide the Services referenced below pursuant to the terms and conditions set forth below.
- "Action" means any User action performed to complete an Offer, including without limitation, registration, form submission, offer response, payment, purchase, completion, or other action specified by the applicable Merchant.
- "Affiliate" means an entity that directly or indirectly controls, is controlled by, or under common control with a party to this Agreement. An entity is regarding as in control of another or owning another if it owns or controls, directly or indirectly, fifty percent or more of the shares entitled to vote for the election of directors or other persons performing similar functions.
- "Confidential Information" means the terms and conditions of this Agreement, any data or information provided or made available by or on behalf of a party or its Affiliates to the other party or any of its Personnel in connection with this Agreement to the extent that such data or information: (i) is marked as confidential or proprietary; (ii) is otherwise identified orally or in writing as confidential or proprietary or (iii) should reasonably be understood to be confidential in nature. Without limiting the generality of the preceding sentence, with respect to TrialPay, the term "Confidential Information" includes without limitation all TrialPay Content, User information, and information provided in the Console or otherwise made available by TrialPay to Publisher.
- "Console" means an online portal for the Service that enables Publisher to set the MAP and manage aspects of Publisher’s account for the Service.
- "Documentation" means any documentation, guides, implementation requirements, or other policies related to the Service provided or made available to Publisher.
- "Intellectual Property Rights" means any and all of the following arising in any jurisdiction in the world: (i) patents, patent applications, continuations, continuations-in-part, divisionals, renewals and reissuances, (ii) copyrights, (iii) trademarks, service marks, trade names and trade dress, (iv) trade secrets, (v) design rights, (vi) data rights, (vii) mask work rights, (viii) moral rights, (ix) foreign equivalents of any of the foregoing, (x) any other intellectual property rights, (xi) registrations of, and applications for, any of the foregoing, and (xii) the right to sue for any present and/or past violation, infringement or misappropriation of any of the foregoing.
- "Laws" means applicable federal, state, local, and international laws, rules and regulations, and any applicable industry or self-regulatory guidelines, including Office of Foreign Asset Control and Anti-Money Laundering compliance requirements, as well as other judgments, consent decrees, or orders.
- "MAP" means the minimum payment that Publisher will accept for a User completing an Offer, as specified by Publisher in the Console. A specific MAP may be established for each Product or Reward and for specified geographic regions. With respect to a Reward that is a virtual currency or other benefit that will vary by amount based on the User’s activity (e.g. the amount of a purchase) as determined by TrialPay, the MAP will be represented as an exchange rate representing the amount of virtual currency that can be obtained by a User for each US$1 payable to Publisher.
- "Merchant" means the entity whose goods or services are featured or promoted in an Offer.
- "Offer" means a promotional offer that is made available to Users through or in connection with the Service.
- "Offer Content" means marketing, promotional, or other content associated with any Offer, including without limitation, images, copy, digital assets, and the user experience and user flow associated with an Offer.
- "Payout Statement" means a final statement of fees payable to Publisher.
- "Personnel" means a party’s employees, agents, consultants, contractors, and subcontractors, as well as the personnel of any of the foregoing.
- "Product" means any good, service, item, or Reward that Publisher designates to be marketed, sold, or distributed to a User in connection with a Transaction, in each case as designated by Publisher in the Console.
- "Publisher Account" means Publisher’s password-protected access to the Console.
- "Publisher Property" means a website, application, or other digital media channel owned or controlled by Publisher that offers Products or Rewards to Users.
- "Publisher Content" means any text, information, branding, software, APIs, or other material related to a Product or Reward (other than Offer Content) that is provided or used by Publisher in connection with the Service.
- "Reward" means any item or benefit of value (physical, digital, or virtual) that Publisher promotes or makes available to Users in connection with Publisher’s use of the Service, including for example, loyalty points, gift cards, virtual currency, statement credits, or other software or virtual goods.
- "Service" means the TrialPay proprietary platform and activities related to displaying Offers to Users.
- "Statement Credit" means a Reward of a statement credit applied to a cardholder’s payment card account.
- "Statement Credit Offer" means an Offer fulfilled with a Statement Credit.
- "Territory" means the specific geographies and jurisdictions in which Publisher has authorized TrialPay to make available a Reward to Users, as designated by Publisher from time to time in the Console.
- "Transaction" means a User obtaining a Reward by means of the Service by completing an Offer, taking all actions and meeting all requirements of such Offer, and TrialPay collecting funds from the applicable Merchant.
- "TrialPay Content" means text, information, branding, and other material provided by TrialPay to Publisher for use solely in connection with the Service, including Offer Content.
- "User" means a consumer that interacts with the Service through or in connection with the Publisher Properties.
2. TrialPay Service.
- TrialPay License Grant. Subject to this Agreement and Publisher’s compliance with applicable Documentation, TrialPay grants to Publisher a non-exclusive, non-transferable, non-sublicensable, limited license, solely during the Term, to use the Service, including the Offer Content, TrialPay Content, and Documentation for the sole purpose of making the Offers available to Users. Publisher agrees to use the Service solely in accordance with this Agreement and applicable Law. Publisher acknowledges that Offers and TrialPay Content available through the Service are subject to change at any time, and that TrialPay makes no guarantees regarding the availability or performance of any Offer or TrialPay Content.
- Distribution of Offers. Publisher will not distribute or promote (or allow any other party to distribute or promote) TrialPay Content (including any Offer) through any site, property, or channel other than the Publisher Properties (including, without limitation, through a sub-publisher or affiliate network) without TrialPay’s prior written consent.
- Publisher License Grant. Publisher hereby grants TrialPay a non-exclusive right and license to use Publisher's trademarks, service marks, trade names, and Publisher Content as reasonably necessary to provide the Service and to exercise TrialPay’s rights in this Agreement.
- Mobile Applications. Use of the Service in connection with mobile devices may require Publisher to access and use the TrialPay Mobile Software Development Kit ("Mobile SDK"). All use of the Mobile SDK is subject to the then-current version of the Mobile SDK license set forth at www.trialpay.com/legal/.
- Restrictions on Use. Publisher’s use of the Service will not include service bureau use, outsourcing, renting, reselling, sublicensing, concurrent use of a single login, or time-sharing of the Service. Publisher will not and will not permit any third party to: (i) copy, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble, decompile, frame, obscure, or alter the appearance of the Service or any part thereof, or otherwise attempt to discover any source code or modify the Service in any manner or form unless expressly allowed in the Documentation or authorized by TrialPay in writing, (ii) use unauthorized modified versions of the Service, including, without limitation, for the purpose of building a similar or competitive product or service or for the purpose of obtaining unauthorized access to the Service, (iii) use the Service in a manner that is contrary to applicable Law or in violation of any third party rights proprietary or Intellectual Property Rights, (iv) publish, post, upload or otherwise transmit data or content that contains any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another, or (v) use or knowingly permit the use of any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Service.
- Suspension. TrialPay may suspend Publisher’s use of or access to the Service, in whole or in part, if TrialPay determines that Publisher is not in compliance with this Agreement, or that Publisher’s activity or use of the Service could have a negative impact on the Service or TrialPay’s business. Such suspension may last until such time Publisher resolves the issue in question to TrialPay’s satisfaction, and Publisher will comply with any requirements and restrictions that TrialPay may impose in connection with the suspension. In addition, TrialPay may suspend the Service due to a change in applicable Law impacting TrialPay’s business.
- Offers – Additional Terms. Publisher acknowledges that for certain Offers, Publisher may be required to comply with additional terms and conditions or policies. Publisher will comply with all such terms, conditions, and policies associated with a particular Offer or type of Offer communicated by TrialPay to Publisher.
- Third-Party Content. Publisher acknowledges and agrees that Offers may include links to Merchant and other third-party websites and resources over which TrialPay has no control or responsibility. TrialPay is not responsible for the availability, content, advertising, products, or other materials on or available from such Merchant or third party websites or resources. Publisher acknowledges and agrees that TrialPay will have no responsibility or liability whatsoever for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, goods, or services available on or through any such Merchant or third party website or resource. All correspondence or business dealings with, or participation in promotions of, Merchants found on or through any Offer, including payment and delivery of related goods or services and any other terms, conditions, warranties, or representations associated with such dealings, are solely between the applicable User and Merchant.
3. Publisher Obligations.
- Products and Rewards
- Maintaining Product and Reward Information. Publisher will be responsible for maintaining through the Console a current list of Products and Rewards for which TrialPay may provide the Service. Publisher is solely responsible for ensuring that all information in the Console is accurate and current. Publisher will specify the MAP for each Product or Reward in the Console.
- Fulfilling Products and Rewards. Publisher will ensure that all Users receive Rewards to which they are entitled in connection with a Transaction. The Transaction and any associated terms and conditions with respect to a Product or Reward that a User is entitled to receive by means of the Service will be established directly between Publisher and the User, and all activities undertaken by TrialPay with respect to the Service are solely to assist Publisher in completing such Transaction or fulfilling the Reward. To the extent Publisher requests or requires TrialPay's involvement with respect to fulfillment or delivery of a Product or Reward in connection with a Transaction, or communication with a User related thereto, TrialPay will act as an agent of Publisher, Publisher hereby appoints TrialPay an agent for such purpose, and Publisher will provide all necessary information, including, but not limited to User contact information, in order for TrialPay to effect the foregoing. In the event that Publisher fails to provide a Reward to a User in connection with a valid Transaction, TrialPay may, but is not obligated to, provide the User with an amount corresponding to the unfulfilled Reward and deduct that amount from any amounts owed to Publisher. Publisher will be solely responsible for the payment of all sales, use, value-added, or other taxes that may be imposed upon the distribution, sale, license, or use of a Product or Reward by a User.
- Export Compliance. For each Product or Reward identified in the Console, Publisher will advise TrialPay in writing of the specific export and import classification of such Product or Reward under any export or import regulations applicable in the designated Territory. If no such information is provided by Publisher, then Publisher thereby represents and warrants to TrialPay that no import or export restrictions apply with respect to distribution of the Product or Reward in the designated Territory. Publisher will promptly notify TrialPay of any changes to a Product or Reward or to the export or import classification of a Product or Reward that may affect such classification. If required, Publisher will be solely responsible for applying for, obtaining, and complying with any necessary import or export licenses with respect to any distribution of Products or Rewards to a User hereunder. Any information provided pursuant to this Section 3(a)(iii) will be submitted by email to firstname.lastname@example.org.
- Publisher Account Access and Security. Access to the Publisher Account is provided only to Publisher, and Publisher is strictly prohibited from allowing any third party to access the Publisher Account. Publisher is at all times responsible for maintaining the strict confidentiality of Publisher’s password to the Publisher Account and is solely responsible for all activity conducted under its login credentials, any access or use of the Publisher Account, and any fees, costs, or expenses incurred or accumulated as a result of such access or use. Publisher agrees to immediately notify TrialPay of any unauthorized use of the Publisher Account or any other breach of security related thereto. TrialPay is not responsible or liable for, and Publisher hereby waives any claim against TrialPay in connection with, any loss or damage arising from Publisher’s failure to comply with this Section 3(b).
- Use of TrialPay Content.
- No Modification of TrialPay Content. Publisher will not display or promote any Offer or other TrialPay Content outside or independently of the TrialPay-operated elements of the Service without TrialPay’s prior written consent. In all cases, Publisher will not modify or alter any TrialPay Content, including copy, terms, creative assets, disclosures, or user flows associated with an Offer, and will display all such TrialPay Content in the form and manner provided, made available, or required by TrialPay (including requirements set forth in Documentation).
- Takedown. Upon request by TrialPay, Publisher will cease any further distribution or promotion of TrialPay Content or an Offer as soon as practicable, but in any case within twenty-four (24) hours after the request. Publisher acknowledges that TrialPay may at any time and without notice suspend or block access to the Service or an Offer by Publisher or Users.
- Restricted Products and Websites. Publisher agrees that the Publisher Property, Rewards, and Products will at all times comply with the restrictions and limitations set forth at http://www.trialpay.com/legal/restricted/.
- Compliance Review. Publisher acknowledges that TrialPay may from time to time review and assess Publisher’s use of TrialPay Content, Publisher Content, Rewards, Publisher policies, systems and other related information related to its use of the Service. Publisher will cooperate with any such review by promptly responding to TrialPay requests and providing access to any relevant systems, documentation, information, processes and Personnel. If a review reveals any concerns or deficiencies regarding Publisher’s activities or noncompliance with this Agreement, Publisher agrees to promptly address such concern or deficiency and acknowledges TrialPay may suspend Publisher’s use of the Service until the concern or deficiency is corrected.
- Statement Credit Offers. TrialPay may, in its sole discretion, make Statement Credit Offers available through the Service. Publisher acknowledges that Statement Credit Offers (and Publisher’s promotion thereof) may be subject to additional terms provided or made available to Publisher by TrialPay. Publisher will not promote any offer or benefit that utilizes a statement credit other than a Statement Credit provided by TrialPay.
- Facilitation of Offers. To the extent that Publisher or the Publisher Property makes use of third party products or services to make available elements of the Publisher Property applicable to the Service or required for the interoperability of the Publisher Property with the Service, Publisher represents and warrants that it has performed customary diligence on such third party entities, products, and services, and will ensure that such products or services, or the applicable providers of such third party products or services, interoperate with the Service and comply with applicable Laws.
4. Privacy Notice.
In accordance with applicable law, each party will maintain and prominently publish to Users a privacy notice describing its practices with respect to collection, use, and transfer of User data ("Privacy Notice"), and each party will only disclose or share User data in accordance with this Agreement and its Privacy Notice. As required by applicable Law (or upon request by TrialPay), if Publisher’s use of the Service does not display a link to the TrialPay Privacy Notice, Publisher will, through its Privacy Notice or otherwise, describe how TrialPay collects and uses information as set forth in the TrialPay Privacy Notice, specifically identifying TrialPay, Inc. or its Affiliates. A party's failure to comply with such Privacy Notice is a material breach of this Agreement. TrialPay may share data regarding Transactions with third parties, including Merchants, in connection with operating the Service.
5. User Support.
TrialPay is responsible for responding to User inquiries relating to verification of Transactions made by means of the Service. Publisher is solely responsible for all User inquiries relating to Products and Rewards, including technical support thereof. If TrialPay re-directs a User issue to Publisher, Publisher will provide prompt, reasonable, and effective support to the User, with a target response time of one (1) business day for all inquiries. Publisher is solely responsible for the full satisfaction of all User inquiries relating to a Product or Reward and will promptly and effectively resolve any such claims. TrialPay may deem a Transaction to be complete on the basis of documentation or information submitted by such User, even if ultimately this documentation or information cannot be confirmed and does not represent a Transaction for which Publisher is paid. If in any calendar month the number of User inquiries received by TrialPay as a percentage of the total number of Transactions ("Inquiry Rate") is greater than 5%, TrialPay may provide Publisher a warning notice; upon receipt of that notice, Publisher will take all reasonable measures to reduce the number of User inquiries. If the Inquiry Rate exceeds 10% for two consecutive months, TrialPay may impose a service fee equal to 4% of the payment to Publisher in each month until the Inquiry Rate remains below 10% for two consecutive calendar months.
6. User Fraud.
The parties will undertake diligent efforts to detect, prevent, and resolve any attempted Transactions generated by any person, bot, automated program or similar device that involve early cancellation by the User or are considered fraudulent, invalid, unauthorized, illegal, lacking sufficient documentation, or otherwise not bona fide, all as reasonably determined by TrialPay, Publisher, or the applicable Merchant ("User Fraud"). TrialPay reserves the right not to allow the Service to be used with a specific User, Publisher Property, or Offer if TrialPay determines that the User Fraud relating to such User, Publisher Property, or Offer is excessive.
- Reporting. Payout Statements and summary information relating to Transactions will be made available in the Console. Publisher may elect to receive notifications and scheduled reporting via email to Publisher’s designated contact by registering through the Console. Publisher agrees that Payout Statements that are not disputed by Publisher within thirty (30) days of receipt are deemed to be dispositive, final and binding upon Publisher.
- Data Reconciliation. Publisher acknowledges and agrees that any reporting accessed by means of the Console is preliminary and subject to change.
8. Payout to Publisher.
- Payments. Subject to the terms of this Agreement, TrialPay will pay Publisher at least the amount listed in the MAP for each Offer completed by a User, provided that TrialPay shall be entitled to withhold or offset any amounts owed to Publisher against any amounts related to Transactions (i) for which TrialPay has not received payment from the Merchant, (ii) where the underlying Action is invalidated, or suspected to involve fraud or improper activity, or (iii) generated in violation of this Agreement, as well as for any amounts otherwise owed by Publisher to TrialPay. Payment to Publisher will be made in U.S. dollars and sent by TrialPay to Publisher's account designed in the Console.
- Schedule. TrialPay shall use reasonable efforts to make payments to Publisher within thirty (30) days after the end of each calendar month for Transactions occurring during such calendar month. Notwithstanding the foregoing, TrialPay will not pay or be required to pay any amounts due to Publisher until the amount payable reaches or exceeds two hundred and fifty dollars ($250.00).
9. Representations and Warranties.
Publisher represents, warrants and agrees as follows:
- The Publisher Properties, Products, Rewards, Publisher’s use of the Service and its activity in connection with this Agreement will (i) comply with applicable Laws, including, without limitation, consumer protection and privacy Laws, (ii) comply with any agreements, terms and conditions or other requirements imposed by third-party platforms (collectively, "Platform Policies") and (iii) not infringe upon any third party Intellectual Property Rights or other proprietary rights;
- All information provided by Publisher (during the registration process or otherwise) or maintained by Publisher in the Console is accurate and correct at the time it is provided and will remain accurate and correct throughout the Term;
- Publisher will collect, store, secure, disclose and use User data in accordance with Publisher's Privacy Notice, applicable Laws and this Agreement;
- Publisher's commitments, obligations, and responsibilities under this Agreement do not breach or conflict with Publisher's other commitments, obligations, or responsibilities, including but not limited to its Privacy Notice;
- Publisher will not make available the Service to children under the age of 16, and will in all respects comply with the Children’s Online Privacy Protection Act of 1998 and all implementing rules and regulations;
- Neither Publisher nor any individual, entity, or organization holding any ownership interest or controlling interest in Publisher, including any officer or director, is an individual, entity, organization with whom any United States law, regulation, or executive order prohibits U.S. companies and individuals from dealing, including, names appearing on the SDN List; and
- Publisher will immediately notify TrialPay in writing if Publisher has any reason to believe that any of the foregoing representations, warranties or covenants cease to be true.
10. Proprietary Rights.
- Trademarks. Each party will retain all right, title, and interest, including all Intellectual Property Rights, in and to its content, logos, trademarks, service marks, trade names, and other intellectual property rights. Each party's use of the other party's trademarks and service marks will be in accordance with any supplied trademark guidelines, and all goodwill associated with each party's use of the other party's trademarks and service marks will inure solely to the benefit of the respective owner. Each party will reproduce all proprietary name, trademark, service mark, patent, and copyright notices present in the other party's materials, products, and documents, without modification or alteration.
- TrialPay Ownership. As between TrialPay and Publisher, TrialPay owns and retains all rights, title, and interest in and to the Service, TrialPay Content, TrialPay’s Confidential Information, and Documentation (except for any Offers included therein), including, without limitation, all software, Intellectual Property Rights, information, and data related thereto, including any usage data and compilations thereof. Except as expressly set forth herein, TrialPay will exclusively own all worldwide right, title, and interest in and to all items conceived, made, developed, discovered, written, authored, invented, created, or first reduced to practice by TrialPay, alone or jointly with third parties, under this Agreement, whether completed or work-in-progress ("Work Product"). Without limiting the previous sentence, to the extent that any Work Product includes materials subject to copyright, patent, trade secret, or other proprietary right protection, Publisher hereby irrevocably assigns to TrialPay all worldwide right, title and interest in and to any and all Work Product (including renewals thereof and all related Intellectual Property Rights) that Publisher has or may hereafter acquire. Publisher agrees that during the term of this Agreement and thereafter, Publisher will execute such documents and take such lawful actions as TrialPay may request, at TrialPay’s reasonable expense, to evidence and perfect the above assignment and to secure all worldwide Intellectual Property Rights and protections with respect to such Work Product. Publisher will, in addition, cause its applicable Personnel, agents and contractors to do the same. Publisher also agrees not to assert any moral rights under applicable copyright law and to require its Personnel to do the same.
- Publisher Ownership. As between TrialPay and Publisher, Publisher owns and retains all rights, title, and interest, including Intellectual Property Rights in and to the Products, Rewards, Publisher Content and Publisher Properties (except for any Offers, Work Product, Statement Credits, or TrialPay Content included therein).
- Feedback. Publisher may choose to provide TrialPay with suggestions, feedback, or ideas related to the Service, TrialPay Content, Statement Credits, Mobile SDK, or improvements thereof ("Feedback"). In the event that Publisher provides TrialPay with such Feedback, Publisher hereby grants TrialPay, without attribution or cost, all rights necessary for TrialPay to use such Feedback and to implement any such Feedback in TrialPay’s or its Affiliates’ products or services.
- Reservation of Rights. Except as expressly set forth in this Agreement, neither party grants the other party any license, express or implied, to its Intellectual Property Rights.
Publisher may not issue any press release or make any other public disclosure relating to the Agreement. TrialPay may identify Publisher (by name and logo) as a TrialPay publisher in client lists and other marketing materials and, subject to the prior written consent of Publisher, may issue a Publisher-approved press release regarding the relationship between the parties.
Unless otherwise agreed by TrialPay in writing (email is sufficient), during the Term of this Agreement and for six (6) months thereafter, (a) Publisher will not engage with any Merchant disclosed or identified to Publisher through the Service in any type of program or service that is similar, in whole or in part, to the Service, and (b) Publisher will not implement or use any third party provider or any Publisher internal program that is similar, in whole or in part, to the Service. In the event of any violation of this Section 12, Publisher will pay TrialPay the fees TrialPay would have otherwise earned from Transactions under this Agreement. Except as expressly set forth above, nothing herein will be deemed to restrict Publisher from entering into independent strategic partnerships or other agreements with Merchants, or to prohibit Publisher from advertising, merchandising or promoting Rewards.
Publisher will indemnify, defend, and hold harmless TrialPay and its Affiliates, Visa Europe Services Inc., Visa Europe Ltd., and their Affiliates, and each of their representatives, successors, and permitted assigns from and against any and all claims, losses, expenses, damages, liabilities and costs, including attorneys' fees, arising out of or relating to: (a) the violation of any patent, copyright, trademark, trade secret, or other intellectual property or property right of any third party by Publisher or any Reward, Publisher Property, Publisher Content, or any use of any of them, (b) violation of any applicable Laws by Publisher or any Reward, Publisher Property, Publisher Content, or any use of any of them, or (c) any breach of a representation, warranty or covenant of Publisher contained in this Agreement.
14. Disclaimer of Warranty.
TRIALPAY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, AND FULLY DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. THE SERVICE, TRIALPAY CONTENT, AND PRODUCTS AND SERVICES PROVIDED UNDER THIS AGREEMENT ARE "AS IS" AND "AS AVAILABLE". FURTHER, TRIALPAY DOES NOT WARRANT ANY RESULTS FROM THE USE OF THE SERVICE OR THAT USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE.
15. Limitations on Liability.
NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, NEITHER TRIALPAY NOR ITS AFFILIATES WILL BE LIABLE OR OBLIGATED WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT OR UNDER ANY CONTRACT, STATUTE, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR: (I) ANY AMOUNTS IN EXCESS OF THE AGGREGATE OF THE NET AMOUNTS PAID TO PUBLISHER PURSUANT TO THIS AGREEMENT (NOT INCLUDING THE PORTION OF SUCH PAYMENTS THAT CORRESPOND TO THE VALUE PROVIDED TO USERS AS REWARDS) IN THE SIX (6) MONTHS PRIOR TO THE DATE ON WHICH THE CLAIM AROSE; (II) ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICE OR RIGHTS; (III) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR SPECIAL DAMAGES; (IV) INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA; OR (V) ANY MATTER BEYOND TRIALPAY'S OR ITS AFFILIATE'S REASONABLE CONTROL. THE PARTIES FURTHER ACKNOWLEDGE AND AGREE THAT NEITHER TRIALPAY NOR ITS AFFILIATES WILL BE LIABLE TO PUBLISHER FOR ANY CLAIM, LOSS, BILLING ERROR, DAMAGE, OR EXPENSE ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE SERVICE WHICH IS NOT REPORTED IN WRITING BY PUBLISHER TO TRIALPAY WITHIN SIXTY (60) DAYS OF THE OCCURRENCE OF THE APPLICABLE EVENT. PUBLISHER EXPRESSLY WAIVES ANY CLAIM NOT BROUGHT WITHIN THIS TIME PERIOD.
- Restrictions on Use and Disclosure. Each party and its Personnel shall use the other party’s Confidential Information for the sole purpose of fulfilling the party’s obligations and in accordance with the licenses granted under this Agreement and for no other purpose whatsoever. Except as expressly authorized by this Agreement, neither party nor any of its Personnel shall disclose the other party’s Confidential Information to any third party without the owning party’s prior express written consent in each instance. Each party shall restrict disclosure of the other party’s Confidential Information to those of its Personnel who have a need to know such Confidential Information for the purposes of this Agreement. Without limiting the foregoing obligations, each party shall take all reasonable precautions to prevent the unauthorized use or disclosure of the other party’s Confidential Information in its possession or control.
- Exceptions. Neither party’s obligations set forth in this Section 16 will apply to the disclosing party’s Confidential Information to the extent that the receiving party can prove by written documentation that such Confidential Information: (i) was already known to the receiving party prior to its first disclosure to the receiving party in connection with this Agreement; (ii) is disclosed to the receiving party without obligation of confidentiality from a third party who has the right to disclose such information without restriction; or (iii) is independently developed by the receiving party without any use of the disclosing party’s Confidential Information disclosed pursuant to this Agreement. In addition, the receiving party may disclose Confidential Information to the extent that it is ordered by a court of competent jurisdiction, or by demand of a regulatory authority to do so; provided, however, that such party provides to the other party prompt written notice of such order prior to such disclosure (to the extent legally permissible) and provides reasonable information and assistance to the other party, at the other party’s request and expense, to contest or limit such order.
- Prohibited Uses. Except as expressly authorized under this Agreement, in no event may Publisher: (a) use or analyze any User information provided to Publisher by TrialPay for any purpose other than providing support to a User; (b) use any TrialPay Confidential Information for the purpose of ad or offer targeting or identifying or analyzing customer behavior patterns, or reporting, even if aggregated or anonymized; or (c) use, combine or aggregate any TrialPay Confidential Information with any other data for use, in each case outside of the TrialPay approved functions of the Service.
17. Term and Termination.
- Term. This Agreement is entered into on the Effective Date and will remain in effect until terminated by either party pursuant to Section 17(b) (the "Term").
- Each party will have the right to terminate this Agreement with immediate effect upon written notice in the event of (i) material breach of any representation or warranty under this Agreement, or any other provision of the Agreement that results in or constitutes a violation of Law; (ii) material breach of any obligation under this Agreement not covered under the foregoing subsection (i) that has not been remedied by the breaching party within ten (10) business days of written notice; or (iii) the other party’s voluntary or involuntary bankruptcy, receivership, reorganization, dissolution, or liquidation under applicable Law.
- Either party may terminate this Agreement at any time, for any reason, upon thirty (30) days prior written notice to the other party.
- In addition, TrialPay may terminate this Agreement, in whole or in part, immediately upon written notice in the event it determines, in its sole discretion, that the continued operation of the Service, or Publisher’s activity in connection with this Agreement, would create an undue risk of damage to TrialPay’s or its Affiliates’ reputation, goodwill, services, or systems, or would not be in accordance with applicable Laws, or in the event that TrialPay no longer operates the Service as contemplated by this Agreement and the Documentation.
- Effects of Termination. Upon termination this Agreement: (i) each party shall return the other party’s Confidential Information, or upon the other party’s request, destroy all copies thereof in such party’s possession; (ii) Publisher will continue to honor and fulfill its obligations related to Rewards; (iii) TrialPay will make any payments properly due and payable to Publisher as of the termination date; and (iv) Sections 1, 3 - 5, 10 – 16, 17(c), and 18 and any provision of this Agreement which by its terms are intended to survive any termination of this Agreement, will survive the termination of this Agreement.
The parties agree that each party is an independent contractor in the performance of each and every part of the Agreement. Each party will be solely responsible for all of its employees and agents and its labor costs and expenses arising in connection therewith. Publisher does not have the authority, right, or ability to bind or commit TrialPay in any way. Neither party may assign its rights or obligations under this Agreement without the consent of the other party, except that TrialPay may assign this Agreement, or any of its rights and obligations hereunder, to an Affiliate or to a successor to all or substantially all of its business or assets. Publisher recognizes and agrees that aspects of the Service may be provided by entities other than TrialPay. In the event that any provision of this Agreement are determined to be illegal or unenforceable, such provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Unless otherwise expressly stated in this Agreement, all remedies available under or with respect to this Agreement are cumulative and in addition to all other remedies, if any, available at law or in equity. This Agreement will be governed by and construed in accordance with the laws of the State of California, without regard to the conflicts of laws provisions thereof or the UN Convention on the International Sale of Goods. The sole jurisdiction and venue for actions related to the subject matter hereof will be the state and federal courts located in San Francisco, California, and each party consents to the jurisdiction of such courts with respect to any such action. In any action or proceeding arising out of this Agreement, the prevailing party will be entitled to recover costs and attorneys' fees. This Agreement supersedes all proposals, oral or written, all negotiations, conversations, or discussions between or among parties relating to the subject matter of this Agreement, and all past dealing or industry custom. Notwithstanding the foregoing, nothing in this Agreement will limit or modify Publisher’s obligations under its merchant acquirer agreement, if any. By using the Service, Publisher unconditionally consents to be bound by the TrialPay website Terms & Conditions set forth at www.trialpay.com/legal/terms/ (the "Website Terms"), provided that in the event of a conflict between the Website Terms and this Agreement then the terms of this Agreement will prevail. Unless otherwise expressly set forth in this Agreement, any notice required under this Agreement shall be given in writing at the contact information set forth below for each party, as may be amended in writing from time to time, and shall be deemed to have been delivered and given for all purposes: (a) on the delivery date, if delivered by hand courier to the party to whom such notice is directed or sent with a reputable commercial overnight carrier, (b) five (5) business days, if mailed by United States Postal Service Registered Mail, and (c) solely with respect to notice to Publisher, upon posting to the Console or upon transmission if sent via email to a Publisher contact identified below or within the Console. Except as expressly set forth herein, no changes, modifications, or waivers are to be made to this Agreement unless evidenced in writing and signed for and on behalf of both parties. This Agreement may be executed in counterparts, each of which will be deemed to be an original and all of which together will constitute one and the same agreement. In addition to any other lawful means of execution or delivery, this Agreement may be executed by digital signatures and delivered by the exchange of email copies.
TrialPay Publisher Agreement (September 4, 2015)