This Publisher Agreement is entered into by and between the Publisher and Swoop.com, Inc. (“Swoop”), with its principal place of business at 125 Cambridgepark Drive, Cambridge MA 02140 and contact email address at [email protected]. The Standard Terms and Conditions attached to this Publisher Agreement are hereby incorporated into and form part of this Publisher Agreement (together the “Agreement“). In the event of any conflict between the Standard Terms and Conditions and this underlying Publisher Agreement, this Publisher Agreement will govern.
1. The Swoop Service
You are solely responsible for the Site, including, without limitation, all content, materials, photographs and images that appear on the Site, maintenance and operation thereof in accordance with all applicable laws and in a manner that is in adherence to the terms and conditions of this Agreement.
Swoop shall operate the Swoop Service in its good faith business judgment. Swoop is not obligated to provide notice to you in the event that any Swoop Technology content is not properly displayed to users of the Site (the “Users“), provided, however, that you will receive monthly accounting statements as set forth in Section 3. So long as Publisher is not in material breach or default hereunder, Swoop shall pay Publisher the Referral Fees as set forth in Section 3.
You shall receive a payment equal to fifty percent (50%) of Referral Fees. “Referral Fees” means the amount of fully-earned, non-refundable cash fees actually received by Swoop based on Swoop’s agreement with the applicable merchant or advertiser for queries, impressions, clicks, hints, hovers, landing pages or other similar events (“Referral Events“), and after deducting fees directly related to the implementation and serving of a campaign, in each case as determined by Swoop in its sole discretion but in no event shall such deduction be greater than ten percent (15%) of the Referral Fees prior to the deduction. By the 15th day of each month (or the first business day following if the 15th falls on a weekend or holiday) you will receive notification, either by email, or posting in the Swoop Publisher Portal, of your earnings for the previous calendar month. Payments to you shall be sent by Swoop on or about 60 days following this posting, if your earned balance is one-hundred U.S. dollars ($100) or more. In the event the Agreement is terminated, Swoop shall pay your earned balance to you within ninety (90) days after the end of the calendar month in which the Agreement is terminated. In no event, however, shall Swoop be required to make payments or provide accounting statements so long as your earned balance is less than one-hundred U.S. dollars ($100). Notwithstanding the foregoing, Swoop shall not be liable for any payment which arises in connection with any breach of this Agreement by you. Swoop reserves the right to withhold payment or charge back your account due to any of the foregoing or any breach of this Agreement by you, pending Swoop’s reasonable investigation of any of the foregoing or any breach of this Agreement by you, or in the event that a relevant advertiser or merchant defaults on payment to Swoop. To ensure proper payment, you are solely responsible for providing and maintaining accurate contact and payment information associated with your account. For U.S. taxpayers, this information includes without limitation a valid U.S. tax identification number and a fully-completed Form W-9. For non-U.S. taxpayers, this information includes without limitation either a signed certification that the taxpayer does not have U.S. activities or a fully-completed Form W-8 or other form, which may require a valid U.S. tax identification number, as required by the U.S. tax authorities. You agree to pay all applicable taxes or charges imposed by any government entity in connection with your participation in the program contemplated by this Agreement. If you dispute any payment made under this Agreement, you must notify Swoop in writing within thirty (30) days of any such payment; failure to so notify Swoop shall result in the waiver by you of any claim relating to any such disputed payment. Payment shall be calculated solely based on records maintained by Swoop.
This Agreement, including the Standard Terms and Conditions attached hereto, constitutes the entire agreement between the parties with respect to the subject matter hereof. Any modifications to this Agreement must be made in a writing executed by both parties, by your online acceptance of updated terms, or after your continued participation in the Swoop Service after such terms have been updated by Swoop.
Standard Terms and Conditions to Swoop Publisher Agreement
These Standard Terms and Conditions are attached to the Swoop Publisher Agreement between the Publisher and Swoop.com, Inc. (“Swoop”) and incorporated therein by reference.
1. Prohibited Uses
You shall not, and shall not authorize or encourage any third party to: (i) directly or indirectly generate Referral Events through any automated, deceptive, fraudulent or other invalid means; (ii) edit or modify any Swoop Technology content, or remove, obscure or minimize any Swoop Technology content in any way; (iii) engage in any action or practice that reflects poorly on Swoop or otherwise disparages or devalues Swoop’s reputation or goodwill; (iv) modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Swoop Service or any documentation provided by Swoop, or create or attempt to create a substitute or similar service or product through use of or access to the Swoop Service or proprietary information related thereto; or (v) remove, obscure, or alter Swoop’s copyright notice, trademarks, logos, or other proprietary rights or any other notices affixed to or contained within the Swoop Service or documentation. You acknowledge that any attempted participation or violation of any of the foregoing is a material breach of this Agreement and that Swoop reserves the right to pursue any and all applicable legal and equitable remedies against you, including an immediate termination of this Agreement, and the pursuit of all available civil or criminal remedies.
Either party may terminate this Agreement at any time, with or without cause, upon written notice to the other as set forth in Section 11 of these Terms and Conditions. Upon termination of this Agreement for any reason, your right to use the Swoop Service shall immediately cease and you shall remove the Swoop Technology and any other technology provided to you by Swoop from your Site. Sections 2, 3, 6, 7, 9, 10 and 11 of these Terms and Conditions shall survive termination.
As used herein, “Confidential Information” means all confidential and proprietary information of a party (the “Disclosing Party“) disclosed to the other party (the “Receiving Party“), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information or the circumstances of disclosure. Swoop’s Confidential Information includes without limitation: (a) all Swoop software, technology, programming, specifications, materials, guidelines and documentation relating to Swoop’s products, services and/or business practices, including, without limitation, the Swoop Technology and Swoop Service; and (b) any referral fee information, click-through rates or other statistics and/or reports relating to Site performance or this Agreement. Confidential Information does not include information that has become publicly known through no breach by the Receiving Party, or information that has been (i) independently developed without access to the Disclosing Party’s Confidential Information, as evidenced in writing; (ii) rightfully received by the Receiving Party from a third party; or (iii) required to be disclosed by law or by a governmental authority, subject to the conditions herein.
The Receiving Party shall apply the same security measures and degree of care to the Confidential Information as the Receiving Party applies to its own confidential information, which the Receiving Party warrants as providing adequate protection from unauthorized disclosure, copying or use.
The Receiving Party may only disclose the Disclosing Party’s Confidential Information to its Representatives who need to know the Confidential Information for the purpose of this Agreement, provided that: (a) it informs such Representatives of the confidential nature of the Confidential Information before disclosure and the Representatives have entered into written and enforceable agreements to keep the Confidential Information confidential in terms at least as extensive and binding upon the Representatives as the terms of this Agreement are upon the parties; and (b) at all times, it is responsible for such Representatives’ compliance with the obligations set out in this Agreement. “Representatives” shall mean a party’s employees, agents, representatives and contractors.
Each party acknowledges that (i) the unauthorized disclosure of any Confidential Information, or any information which at law or equity ought to remain confidential, will immediately cause the Disclosing Party continuing irreparable injury that would not adequately be compensable in damages at law alone, and (ii) the Disclosing Party shall be entitled to seek immediate injunctive relief against the breach or threatened breach of any of the foregoing confidentiality undertakings without obligation to post bond or surety, in addition to any legal remedies that may be available. As a result, each party hereby consents to the other party’s obtaining of such injunctive relief. If the Receiving Party is compelled by law or legal process to disclose any Disclosing Party Confidential Information, the Receiving Party will provide the Disclosing Party with prior notice of such compelled disclosure, to the extent legally permitted, and give the Disclosing Party reasonable assistance if it elects to contest the disclosure.
4. Data Content and Licenses
Publisher agrees, during the term of this Agreement, to make the Swoop Service available to Users. Subject to the terms and conditions of this Agreement, Swoop grants Publisher, during the term of this Agreement, a limited, revocable, non-transferable, royalty-free, fully-paid-up, non-exclusive license to use the Swoop Technology and Swoop Data solely for the purpose of the Swoop Service and to fulfill Publisher’s obligations hereunder.
5. No Warranty
SWOOP MAKES NO GUARANTEE, REPRESENTATION OR WARRANTY REGARDING IF, OR IN WHAT AMOUNTS, SWOOP TECHNOLOGY CONTENT MAY FROM TIME TO TIME BE IMPLEMENTED ON THE SITE OR ANY PORTIONS THEREOF OR REGARDING WHAT IF ANY REFERRAL EVENTS OR REFERRAL FEES MAY BE GENERATED THEREBY. YOU ACCEPT THE SWOOP SERVICE, SWOOP TECHNOLOGY AND SWOOP DATA “AS IS” AND “AS AVAILABLE” AND WITHOUT EXPRESS OR IMPLIED WARRANTY (INCLUDING WITHOUT LIMITATION AS TO REFERRAL EVENTS, SWOOP TECHNOLOGY CONTENT OR OTHER SERVICES) TO THE FULLEST EXTENT PERMITTED BY LAW. YOUR SOLE RECOURSE IN THE EVENT YOU ARE DISSATISFIED WITH THE SWOOP SERVICE IS TO TERMINATE THIS AGREEMENT PURSUANT TO SECTION 2 OF THESE TERMS AND CONDITIONS. SWOOP EXPRESSLY DISCLAIMS THE WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR ANY PARTICULAR PURPOSE. TO THE EXTENT ANY CLAIMS ARE BASED ON ANY CONTENT NOT OWNED BY SWOOP, SWOOP SHALL NOT HAVE ANY LIABILITY IN CONNECTION WITH SAME. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR AND WILL ENSURE THAT YOUR USE OF THE SWOOP SERVICE, SWOOP TECHNOLOGY AND SWOOP DATA COMPLIES WITH ALL APPLICABLE LAWS. SWOOP ASSUMES NO RESPONSIBILITY TO DETERMINE WHETHER YOUR USE OF THE SWOOP SERVICE, SWOOP TECHNOLOGY AND SWOOP DATA ON YOUR SITE VIOLATES ANY THIRD PARTY RIGHTS, APPLICABLE PRIVACY LAWS OR PRIVACY RIGHTS.
6. Limitations of Liability; Force Majeure
EXCEPT FOR ANY INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS HEREUNDER OR YOUR BREACH OF ANY INTELLECTUAL PROPERTY RIGHTS, (i) IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND (ii) SWOOP’S AGGREGATE LIABILITY TO PUBLISHER UNDER THIS AGREEMENT FOR ANY CLAIM IS LIMITED TO THE AGGREGATE NET AMOUNT OF REFERRAL FEES DUE OR PAID TO PUBLISHER DURING THE THREE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM. Each party acknowledges that the other party has entered into this Agreement relying on the limitations of liability stated herein and that those limitations are an essential basis of the bargain between the parties. Without limiting the foregoing and except for payment obligations, neither party shall have any liability for any failure or delay resulting from any condition beyond the reasonable control of such party, including but not limited to governmental action or acts of terrorism, earthquake or other acts of God, labor conditions, and power failures.
You agree that Swoop may use your name and logo in presentations, marketing materials, customer lists, financial reports and website listings of customers.
8. Representations and Warranties
You represent and warrant that (a) all of the information you provide to Swoop in connection with this Agreement is correct and current; (b) you are the owner of each Site or that you are legally authorized to act on behalf of the owner of such Site for the purposes of this Agreement; (c) you have all necessary right, power and authority to enter into this Agreement and to perform the acts required of you hereunder, including all necessary rights and authority for the use of all materials displayed on your Site, and to provide Swoop with all User data and access to User data, as contemplated under this Agreement; (d) you provide disclosure of third party data collection on each Site; and (e) you have complied and will continue to comply with all applicable laws, statutes, ordinances, and regulations (including without limitation any relevant data protection or privacy laws) in your performance of any acts hereunder. You further represent and warrant that each Site and any material displayed therein: (i) complies with all applicable laws, statutes, ordinances, and regulations; (ii) does not breach any duty toward or rights of any person or entity including, without limitation, rights of intellectual property, publicity or privacy, or rights or duties under consumer protection, product liability, tort, or contract theories; and (iii) is not pornographic, hate-related, or otherwise objectionable.
Swoop shall defend, indemnify and hold you harmless against any and all third party claims, liability, loss, and expense (including damage awards, settlement amounts, and reasonable legal fees) (“Claims“) made or brought against you by a third party alleging that the technology as provided to you hereunder as part of the Swoop Service directly infringes a U.S. patent, copyright, or trademark of a third party. You agree to indemnify, defend and hold Swoop, its agents, affiliates, subsidiaries, directors, officers, employees and applicable third parties (including without limitation relevant advertisers, merchants, licensors, licensees, consultants and contractors) (collectively “Indemnified Persons“) harmless from and against any and all Claims, made or brought against any Indemnified Person, arising out of, related to or which may arise from your use of the Swoop Service or your breach of any term of this Agreement.
Upon receiving notice of a Claim, the receiving party shall (a) give the other party prompt written notice of the Claim; and (b) give the other party sole control of the defense and settlement of the Claim (except that no act which could materially compromise the rights of the indemnified party shall be taken without its consent, not to be unreasonably withheld or delayed). The parties shall cooperate in good faith in the defense and settlement of any Claim. Each party’s indemnification obligations shall be offset to the extent its ability to defend or settle a claim is jeopardized by the other party’s failure to comply with the preceding sentence. The indemnified party shall be entitled to participate in the defense at its own expense.
Notwithstanding anything to the contrary, if the Swoop Service is held or alleged to be infringing, Swoop shall have the option, at its expense to (i) replace or modify the Swoop Technology or Swoop Service as appropriate; (ii) obtain a license for you to continue using the Swoop Technology or Swoop Service; (iii) replace the Swoop Technology or Swoop Service with one functionally equivalent; or (iv) terminate the Swoop Service and this Agreement.
10. Intellectual Property Rights
Swoop acknowledges that, as between it and you, you own all right, title and interest, including without limitation all Intellectual Property Rights (as defined below), in or to your Site, all content included in the Site, materials, photographs and images that appear on the Site and that it shall not acquire any right, title, or interest in or to your Site or any content on your Site except for the Swoop Service, Swoop Technology and Swoop Data. You acknowledge that as between you and Swoop (i) Swoop owns all right, title and interest, including without limitation all Intellectual Property Rights, in and to the Swoop Service, Swoop Technology and Swoop Data and that (ii) you will not acquire any right, title, or interest in or to the Swoop Service, Swoop Technology or Swoop Data except as expressly set forth in this Agreement. “Intellectual Property Rights” means any and all rights existing from time to time under patent law, copyright law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights.
This Agreement shall be governed by the laws of Massachusetts, except for its conflicts of laws principles. Any dispute or claim arising out of or in connection with this Agreement shall be adjudicated in Middlesex County Massachusetts. The parties specifically exclude from application to the Agreement the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act. The failure to require performance of any provision shall not affect a party’s right to require performance at any time thereafter, nor shall a waiver of any breach or default of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself. If any provision herein is held unenforceable, then such provision will be modified to reflect the parties’ intention, and the remaining provisions of this Agreement will remain in full force and effect. You may not resell, assign, or transfer any of your rights hereunder. Any such attempt may result in termination of this Agreement, without liability to Swoop. Notwithstanding the foregoing, Swoop may assign this Agreement to any affiliate at any time without notice. The relationship between Swoop and you is not one of a legal partnership relationship, but is one of independent contractors. Any notices hereunder shall be valid if sent via email, upon confirmation of delivery of email; via certified mail, upon confirmation of delivery; or via reputable overnight courier service, upon confirmation of delivery, to the physical or email address (as applicable) set forth above (and, in the case of Swoop, marked for the attention of the CEO), or to such other physical or email address as each party may specify from time to time by written notice to the other party.