Spoutable Publisher Terms & Conditions

Spoutable For Publishers Standard Terms and Conditions

Updated 10/13/16

Spoutable For Publishers Standard Terms and Conditions ("Terms") are entered into by Spoutable, LLC. ("Spoutable") and the entity using the Spoutable service for monetization ("Publisher"). These Terms govern Publisher’s use of the Spoutable service and comprise the "Agreement" between Spoutable and the Publisher. If there is any inconsistency between the terms of a signed Publisher Agreement, and these Terms and Conditions, the terms outlined in this document shall prevail.

1. Service.

1.1 Spoutable partners with a network of online properties ("Publishers") and displays a user interface containing links to recommended content, websites and apps where such content is maintained (the "Service"). These recommendations are served when a visitor to a Publisher’s website or app is in the process of exiting that website or app. Spoutable’s proprietary technology and platform detects when a Publisher’s visitor is leaving and serves recommendations of where to go next. Spoutable, in its sole discretion, determines what recommendations to serve on Publisher sites or apps but makes every effort to make these recommendations relevant and interesting for those visitors to the Publisher’s website or app.

1.2 As part of the Service, Spoutable shall display recommended links to graphical, visual, textual and/or auditory content created and promoted by its advertising partners ("Advertisers"). Advertisers agree to pay Spoutable a cost-per-click rate determined by Spoutable and the Advertiser. A percentage of this revenue will be shared with the Publisher as outlined in the separate publisher agreement ("Publisher Agreement").

1.3 As part of the Service, Spoutable determines when a user is exiting the Publisher’s website. This is done by tracking mouse movements, including, but not limited to mouse location, mouse movements, and velocity of mouse movements. While Spoutable’s technology is accurate in determining when a visitor is leaving, it is possible that Spoutable’s service may occur when a visitor isn’t leaving. In this event, Spoutable’s service is easy to close so that the Publisher’s visitor can resume navigating the Publisher’s site quickly and easily.

2. Content

2.1 Publisher authorizes Spoutable to place the Content Recommendations on the Publisher’s sites and/or apps. Recommended Content adheres to Spoutable's content guidelines, and may be updated from time to time by Spoutable. Publisher acknowledges that Spoutable is not responsible for the Content and that the Content regularly changes for a variety of reasons. Publisher reserves the right to object to content served through the service and shall contact Spoutable if the Publisher wants specific content recommendations removed from their site.

2.2 Spoutable shall not, directly or indirectly, recommend Content that is: (i) obscene, defamatory, libelous, slanderous, pornographic, violent, profane, indecent or unlawful; (ii) factually inaccurate, misleading or deceptive; or (iii) facilitates or promotes any type of illegal activity, including without limitation pyramid schemes, the sale or use of illicit drugs, or discrimination or harassment of any individual or group.

2.3 Spoutable makes no representation that the Content recommended is owned or authorized by those Advertisers. Spoutable does, however, have its Advertisers represent and warrant that it is authorized to use and promote such content. Spoutable also encourages all Advertisers to use headlines that accurately reflect the tone and subject matter of the Content.

3. Reports

3.1 Spoutable will make reports available to Publisher, that provide information about the number of clicks, average cost per click and total dollars earned. Reports are made available on a per site basis and are updated daily. The final monthly reports may differ from the daily reports. The final monthly reports will provide the conclusive basis for Spoutable's calculation of the fees owed to the Publisher.

3.2 Spoutable will make available, upon request and within reason, more specific information on the performance of the service on a Publisher-specific basis. These specifics may include performance of individual zones within the recommendation unit and other relevant information to help the Publisher and Spoutable work together to improve the performance of the Service.

4. Term and Cancellation.

4.1 This Agreement may be suspended or terminated at any time: (i) by Publisher for any reason upon two (2) business days' written notice to Spoutable, or (ii) by Spoutable for any reason upon five days (5) days’ written notice to Publisher. During the notice period, parties must work in good faith to maintain normal business and service operations. Spoutable shall be responsible for paying Publisher for all clicks received during such notice period.

5. Fees and Payment Terms

5.1 Prior to first payment, Publisher must supply Spoutable with bank wiring information. Spoutable pays via ACH Wire Transfers and does so no more than 20 days after the end of the previous month in which clicks were received. Fees paid are based on the revenue share in the "Publisher Agreement”. There is a $100 revenue accrual minimum before payment to a PayPal account or a United States bank account is initiated. There is a $500 revenue accrual minimum before payment to a bank account outside of the United States is initiated. The Publisher’s balance will be reported daily based on number of clicks and CPC revenue share rate and can be accessed via the online reporting system.

5.2 Spoutable shall not be liable to Publisher or any third party and will not pay any revenue share payment or any payment for revenue generating activity Spoutable believes, in its sole discretion, is the result of fraudulent activity, deceptive and/or designed to generate revenue through non-human end users (the "Fraudulent Activity"). Such Fraudulent Activity includes, but is not limited to, the use any computer generated requests or automated tools and/or repeated manual clicks. Publisher is responsible for making commercially reasonable efforts to prevent such Fraudulent Activity by blocking IP addresses and shall cooperate with Spoutable in any investigation of possible Fraudulent Activity. If Spoutable determines the Publisher has knowingly and repeatedly engaged in Fraudulent Activity, Spoutable may immediately terminate this Agreement and withhold payment up to the amount generated through Fraudulent Activity.

6. Confidentiality

6.1 Each party agrees that with respect to any Confidential Information (as defined below) that is disclosed by one party to the other in connection with the Agreement, the party receiving such Confidential Information shall not disclose such Confidential Information to any third party, or use it for any purpose, except in connection its rights and obligations under the Agreement. "Confidential Information" means all information concerning a party or any of its subsidiaries or affiliates that is not generally known to the public, which information is marked confidential or proprietary, or which under the circumstances ought reasonably to be treated as confidential or proprietary, and includes, without limitation, the terms of the Agreement. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is, as of the time of disclosure, or thereafter becomes, part of the public domain through a source other than the receiving party; (ii) was lawfully in the possession of the receiving party as of the time of disclosure; (iii) is independently developed by the receiving party without reference to the Confidential Information; or (iv) is subsequently obtained from a third party not subject to an obligation of confidentiality with respect to the information disclosed.

6.2 Confidential Information shall be kept in the strictest confidence and shall be protected by all reasonable and necessary security measures. Confidential Information shall not be released by the receiving party to anyone except an employee or agent, who has a need to know same, and who is bound by confidentiality obligations at least as restrictive as these contained herein. Neither party will use any portion of Confidential Information provided by the other party pursuant to the Agreement for any purpose other than as expressly set forth under the Agreement. Notwithstanding the foregoing, either party may disclose Confidential Information strictly necessary to comply with the demands of any court order, law or governmental agency.

7. Additional Representations and Warranties/Disclaimers

7.1 Each party represents and warrants to the other party that: (i) it has all necessary rights and authority to enter into the Agreement and grant the rights and licenses under the Agreement; and (ii) the execution or acceptance of the Agreement (which includes the Platform), and the performance of its respective obligations and duties pursuant to the Agreement, do not and will not violate any agreement to which such party is bound.

7.2 If Publisher is represented by an agency (or other third party acting on behalf of the Publisher), Publishers represents and warrants that: (i) it has the legal authority to enter into the Agreement and make all decisions and take all actions relating to this Agreement; (iii) it has entered into a written agreement granting the agent the authority to represent the Publisher in accordance with (i) (and shall submit such agreement to Spoutable on demand).

7.3 EXCEPT AS MAY BE EXPRESSLY SET FORTH IN THE AGREEMENT, SPOUTABLE MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED -- INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, NON- INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE -- ABOUT ITS SERVICES AND THE PERFORMANCE OR SUCCESS OF ITS SERVICE, OR THAT THE SERVICE WILL OPERATE UNINTERRUPTED, SECURE OR ERROR FREE.

8. Indemnification

8.1 Each party shall defend, indemnify and hold harmless the other party and its respective agents, affiliates, subsidiaries, directors, officers, employees and contractors against any and all third party claims resulting from the breach of such party's duties, obligations and representations under the Agreement.

8.2 In connection with any such claim: (i) the indemnified party shall provide prompt written notice to the indemnifying party of any such claim (provided that the failure to provide such prompt notice shall not relieve the indemnifying party of its indemnification obligations in the Agreement, except to the extent it has been damaged thereby); (ii) the indemnifying party shall have sole control of the defense or settlement of the claim (provided that the indemnifying party may not enter into any settlement that may adversely affect the rights or obligations of the indemnified party without the indemnified party's prior written consent); (iii) at the indemnifying party's request and expense, the indemnified party cooperating in the investigation and defense of such claim; and (iv) the indemnified party shall have the right to participate in its defense with counsel of its own choosing at the indemnified party's expense.

9. Limitation of Liability

EXCEPT WITH RESPECT TO CLAIMS ARISING FROM A PARTY'S INDEMNITY OBLIGATIONS, WILLFUL MISCONDUCT OR A BREACH OF THE CONFIDENTIALITY PROVISION IN THE AGREEMENT, THE MAXIMUM AGGREGATE LIABILITY OF EITHER PARTY AND ITS DIRECTORS, OFFICERS, EMPLOYEES, VENDORS OR AGENTS FOR ANY ACTION REGARDLESS OF THE FORM OF THE ACTION, WHETHER IN TORT OR CONTRACT, ARISING UNDER OR RELATED IN ANY WAY TO THE AGREEMENT OR ITS IMPLEMENTATION SHALL BE LIMITED TO THE AMOUNT OF FEES PAYABLE TO PUBLISHER UNDER THE AGREEMENT IN THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO A CLAIM; IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR CONSEQUENTIAL, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES OR OTHER DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, LOST DATA, LOST REVENUES OR LOST PROFITS, ARISING OUT OF OR RELATED IN ANY WAY TO THE AGREEMENT OR ITS IMPLEMENTATION, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10. Miscellaneous

10.1 Neither Party may assign the Agreement, in whole or in part, by operation of law or otherwise, without the prior written consent of the other; provided, however that either party may assign its rights or delegate its duties under the Agreement, in whole or in part, without the other's consent, in connection with a merger, reorganization or sale of all, or substantially all, of the assignor’s assets, provided that the successor entity shall have sufficient resources to fully perform the Agreement and shall assume the obligation to fully perform the Agreement.

10.2 No press releases shall be made without the mutual consent of Publisher and Spoutable. Spoutable shall have the right to include Publisher’s name on Spoutable’s publisher list and in other marketing materials.

10.3 All notices under the Agreement will be in writing and will be delivered by personal service, confirmed fax, confirmed email, express courier, or certified mail, return receipt requested, to the address of the receiving party set forth on the Publisher Agreement, or at such different address as may be designated by such party by written notice to the other party from time to time. Notice will be effective on receipt.

10.4 Publisher and Spoutable shall each act as independent contractors. Nothing in the Agreement shall be deemed or create or construed as creating a joint venture or partnership between the parties.

10.5 The Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and may not be modified without the prior written consent of both parties. In no event shall any purchase order, insertion order, invoice or other document submitted by Publisher concerning the subject matter hereof have any force or effect unless signed by Spoutable.

10.6 The parties submit that all disputes arising out of or in connection with this Agreement to exclusive jurisdiction of the Courts of California. Further, both parties agree that any disputes arising out of or in connection with this Agreement should first pass through mediation in an effort to quickly and affordably resolve such disputes.

This Agreement is entered into online by approving these Terms and Conditions at the time of Publisher registration. Any questions about these Terms and Conditions should be directed to:

Email: info@spoutable.com
Spoutable, LLC
1929 Hancock Street
San Diego, CA 92110