Back to homepage
Surfside Commerce Media Publisher Agreement
PLEASE READ THESE TERMS AND CONDITIONS BEFORE REGISTERING FOR THE SURFSIDE COMMERCE MEDIA PUBLISHER PROGRAM. This Surfside Commerce Media Publisher Agreement (“Publisher Agreement”) is an agreement between Surfside Solutions Inc. (“SURF”) and you (if registering as an individual) or the entity you represent (if registering as a business), in either case as the applicant (“Publisher”). This Publisher Agreement, together with the Terms of Service and Privacy Policy, describes the terms under which SURF will provide on behalf of Publisher, SURF’s Surfside Commerce Media (“SCM”) platform and associated SCM Services, an online advertising platform that facilitates the sale of Ads, including sponsored products and digital media located on Publisher’s websites to advertisers (the “Program”). Publisher and SURF are sometimes each referred to generically herein as a “Party” and collectively as the “Parties”.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THE PUBLISHER AGREEMENT ON BEHALF OF THE LEGAL ENTITY IDENTIFIED DURING THE ACCOUNT REGISTRATION PROCESS AND TO BIND THAT LEGAL ENTITY TO THE AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS PUBLISHER AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT ACCESS OR USE ANY OF THE SERVICES.
PLEASE NOTE THAT THE AGREEMENT IS SUBJECT TO CHANGE BY SURF IN ITS SOLE DISCRETION AT ANY TIME. WHEN CHANGES ARE MADE, SURF WILL MAKE A COPY OF THE UPDATED AGREEMENT AVAILABLE AT THE WEBSITE AND UPDATE THE “LAST UPDATED DATE” AT THE TOP OF THESE TERMS OF USE OR THE SUPPLEMENTAL TERMS, AS APPLICABLE. IF WE MAKE ANY MATERIAL CHANGES TO THE AGREEMENT, WE WILL PROVIDE NOTICE OF SUCH MATERIAL CHANGES ON THE WEBSITE AND ATTEMPT TO NOTIFY YOU BY SENDING AN E-MAIL TO THE E-MAIL ADDRESS PROVIDED IN YOUR ACCOUNT REGISTRATION OR ORDER FORM. ANY CHANGES TO THE AGREEMENT WILL BE EFFECTIVE IMMEDIATELY FOR NEW USERS OF THE SERVICES AND WILL BE EFFECTIVE FOR EXISTING REGISTERED USERS UPON THE EARLIER OF (A) THIRTY (30) DAYS AFTER THE “LAST UPDATED DATE” AT THE TOP OF THESE TERMS OF USE OR THE APPLICABLE SUPPLEMENTAL TERMS, OR (B) YOUR CONSENT TO AND ACCEPTANCE OF THE UPDATED AGREEMENT IF SURF PROVIDES A MECHANISM FOR YOUR IMMEDIATE ACCEPTANCE IN A SPECIFIED MANNER (SUCH AS A CLICK-THROUGH ACCEPTANCE), WHICH SURF MAY REQUIRE BEFORE FURTHER USE OF THE SERVICES IS PERMITTED. IF YOU DO NOT AGREE TO THE UPDATED AGREEMENT, YOU MUST STOP USING ALL SERVICES UPON THE EFFECTIVE DATE OF THE UPDATED AGREEMENT. OTHERWISE, YOUR CONTINUED USE OF ANY OF THE SERVICES AFTER THE EFFECTIVE DATE OF THE UPDATED AGREEMENT CONSTITUTES YOUR ACCEPTANCE OF THE UPDATED AGREEMENT. PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT AGREEMENT. YOU AGREE THAT SURF’S CONTINUED PROVISION OF THE SERVICES IS ADEQUATE CONIDERATION FOR THE CHANGES IN THE UPDATED AGREEMENT.
General Terms. The purpose of the Program is to permit the placement of third-party and/or SURF advertisements or other commercial or sponsored content (“Ads”) by advertisers on certain properties owned, operated, or controlled by Publisher, which may include Publisher’s websites, mobile applications, devices, screens (including in-store checkout display screens and/or TV walls), or any other digital platforms, communications and/or online or offline point of purchase, as set forth below and approved for participation in the program by SURF in its sole discretion (“Publisher Properties”) in order to earn fees, as specified herein. Publisher agrees that this Publisher Agreement will apply to any use by Publisher of the SCM and SCM Service (as defined below). As between SURF and Publisher, SURF retains exclusive ownership of the SCM (which, for clarity, excludes Publisher Properties).
Enrollment. To enroll, Publisher must provide us with such information as SURF may request to participate in the Program (“Publisher Order Form”). Among other things, Publisher must identify Publisher Properties in the Publisher Order Form. Publisher will ensure that the information Publisher includes in the Publisher Order Form and otherwise provide to SURF is at all times complete and accurate. All such information is incorporated into and forms a part of this Publisher Agreement. Publisher may not share any login or password information that is issued to Publisher in connection with the Program with any third party. SURF will not serve any Ads to Publisher Properties until Publisher provides us with valid taxpayer identification information or otherwise satisfy SURF that it is not an entity from whom SURF is required to obtain tax information. Additionally, if SURF discovers or are notified that the tax information Publisher has provided is not complete and accurate, SURF will immediately stop serving Ads to Publisher Properties and SURF may withhold Publisher’s percentage of Net Revenue until Publisher provides correct information or otherwise satisfy SURF that it is not an entity from whom SURF is required to obtain tax information. Publisher represent and warrant to SURF that (a) any Publisher Property on which you enable Ads to be served is one of your Publisher Properties, (b) Publisher has obtained the rights necessary for the exercise of all rights granted under this Publisher Agreement, and (c) Publisher will be solely responsible for and will pay any licensors or co-owners any royalties or other monies due to them related to such content.
Before or after the enabling of Ads to be served to Publisher Properties, SURF may review the Publisher Order Form and request additional information from Publisher regarding the nature and content of the Publisher Properties and Publisher’s compliance with our documentation related to the Program (the “Documentation”) (and Publisher agrees to provide such information).
Surfside Commerce Media Participation. Publisher hereby grants to SURF the right, but not the obligation, to serve Ads on the Publisher Properties (the “SCM Service”). Publisher may display Ads only on Publisher Properties, and only in compliance with this Publisher Agreement and the Documentation. Publisher may not modify Ads or other content we provide to you, or use Ads or other content other than as expressly permitted by this Publisher Agreement. Publisher will participate in the SCM Service during the Term in accordance with this Publisher Agreement. Publisher understands and agrees that SURF may change, withdraw, or discontinue the SCM Service in its sole discretion and SURF will use good faith efforts to provide Publisher with notice of the same. Publisher acknowledges and accepts that SURF displays Ads across the SURF network and that its advertisers have absolute discretion as to which properties Ads will be displayed on the SURF network and SURF has absolute discretion as to how often Ads will be displayed on the Publisher Properties and how priority is to be governed between different SURF advertisers.
Implementation.
Publisher will strictly comply with the technical requirements and specifications provided by SURF for the purpose of setting up the SCM Service to enable proper delivery, display, tracking and reporting of Ads in connection with the Publisher Properties. These technical specifications may include the following operations (i) including software code, tags and cookies supplied by SURF on the Publisher Properties and (ii) supplying SURF with catalogue files of Publisher’s products and other Publisher content to be displayed in Ads. Publisher shall not modify the scripts, code or other programming instructions provided by SURF without SURF’s prior written authorization. Publisher shall not modify or update the architecture of its Publisher Properties in a manner that degrades the visibility of Ads as initially agreed upon during the implementation, without the prior approval of SURF. Publisher may not modify, misuse or derive data from the technology (e.g., the SURF SDK, SURF tags, or SURF API’s, as applicable) made available to Publisher by SURF (the “SCM Tools”). SURF may modify, suspend, or terminate Publisher’s access to, or discontinue the availability of, the SCM Tools at any time. Publisher may use the SCM Tools solely in accordance with SURF’s Terms of Service (“Terms of Service”) that are applicable to use of SURF’s platform.
With respect to the Publisher Properties, Publisher will integrate the applicable SCM Tools provided by SURF in connection with the SCM Service as soon as reasonably practicable. During the Term, if SURF provides an updated version of the SCM Tools, Publisher will update the Publisher Properties to include the updated version of such SCM Tools as soon as reasonably practicable.
Publisher will comply with SURF’s Terms of Service and Publisher will be solely responsible for all aspects of the Publisher Properties, including all content therein.
Any placement of Ads on the Publisher Properties will be subject to the Terms of Service and this Publisher Agreement.
Publisher acknowledges and agrees that Publisher may only integrate with a SURF-approved integration for monetizing with SCM (e.g., Publisher may only use a SURF-approved bidding technology service provider or implement Publisher’s own bidding technology as approved by SURF in writing (email to suffice)).
Prohibited Uses
Publisher shall not, and shall not authorize or encourage any third party to, directly or indirectly:
generate impressions for, clicks on, or related to any Ad through any automated, deceptive, fraudulent or other invalid means, including, but not limited to, through repeated manual clicks, the use of robots or other automated query tools and/or computer generated search requests;
license, sell, assign, distribute or otherwise commercially exploit or make available to any third party the SCM Tools or SCM Service, including Ads derived from the SCM Service;
include Ads in a browser window generated by an adware, spyware or P2P application; or
modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the SCM Tools, SCM Service, Documentation, or any other software of SURF, or create or attempt to create a substitute or similar service or product through use of or access to the SCM Service or proprietary information or materials related thereto.
Publisher acknowledges that any attempted use of the SCM Service in violation of Section 5 of this Agreement is a material breach of this Agreement and may result in the immediate suspension or termination of Publisher’s account and other legal remedies being pursued against Publisher.
Responsibility for Publisher Properties
Publisher will be solely responsible for (a) Publisher Properties, including development, marketing, operation and maintenance, and all content that appears on Publisher Properties, (b) your use of the SCM Services, and (c) Publisher’s participation in the Program (including your display of Ads) in compliance with this Publisher Agreement and the other Documentation.
SURF will have no liability for these matters or for any of your end users’ claims relating to these matters, and you agree to defend, indemnify, and hold SURF, our affiliates and licensors, and our and their respective employees, officers, directors, and representatives, harmless from and against all claims, damages, losses, liabilities, costs, and expenses (including attorneys’ fees) relating to (a) all matters described in this Section 6; (b) Publisher’s violation of any term or condition of this Publisher Agreement or any other Documentation; or (c) Publisher or Publisher’s employees’ negligence, willful misconduct or fraud (each a “Claim”). Publisher will not consent to the entry of a judgment or settle a Claim without our prior written consent, which may not be unreasonably withheld (provided that it shall not be deemed unreasonable for SURF to withhold consent to any settlement that requires SURF or any of its affiliates to admit fault or otherwise adversely affects SURF or its affiliates). Publisher will use counsel reasonably satisfactory to SURF to defend each Claim. If SURF reasonably determine that a Claim might adversely affect it, SURF may take control of the defense at SURF’s expense (but without limiting Publisher’s indemnification obligations).
By participating in the Program, Publisher agrees that it will comply with our Acceptable Use Policy and all pages, schedules, policies, guidelines, and other documents and materials referenced either in this Publisher Agreement or the Documentation. Publisher agrees that it will use the Program and any content provided to Publisher only in accordance with this Publisher Agreement and the Documentation.
Publisher will promptly provide SURF with any information that it requests to verify Publisher’s compliance with this Publisher Agreement or Documentation. If SURF determines (in its sole discretion) at any time after Publisher begins to receive Ads that the information provided in the Publisher Order Form is inaccurate or that any of Publisher Properties violates any of our Documentation, or that Publisher is otherwise in violation of this Publisher Agreement, SURF may suspend Publisher’s participation in the Program with or without prior notice to Publisher. Any such suspension will remain in effect until SURF is satisfied that the information provided is complete, accurate, and up-to-date, and that Publisher and the Publisher Properties are not violating this Publisher Agreement or the requirements of the Documentation. Publisher hereby consent to SURF investigating the Publisher Properties to verify compliance with this Publisher Agreement and the Documentation.
Payment.
SURF shall have the right, in its sole discretion, to determine the amounts paid by advertisers for Ads displayed on Publisher Properties.
Each month during the Term, for all Publisher Properties on which Ads were displayed during the previous month, (a) for Tag Integrations, SURF will pay Publisher a percentage of Net Revenue (defined below) arising from such Publisher Properties for the previous month as solely determined by SURF, and (b) for Bidding Integrations, SURF will pay Publisher the bid amount specified in a bid response for the delivery of an Ad to Publisher Properties for all Ads delivered to Publisher that were viewable (as determined by SURF) during the previous month. All payments will be made in accordance with this Section 7 unless otherwise agreed to by SURF in writing. “Net Revenue” means (a) the amounts actually collected by SURF from advertisers for Ads displayed on Publisher Properties using Tag Integrations, minus (b) deductions for fraud, bad debt, chargebacks, refunds, credit card processing fees, SURF platform fees, and any other third party fees. Publisher agrees to accurately complete and timely provide to SURF any forms or documentation that SURF determines is required to set up payment to Publisher, and Publisher may update such payment information upon notice to SURF provided that such information is complete and accurate and Publisher has the requisite authority to provide such information. Subject to the foregoing, approximately 60 days following the end of the calendar month in which the transaction occurred, SURF will pay Publisher the amounts associated with such calendar month. In the event a payment from SURF to Publisher for any given pay period would be less than One Hundred United States Dollars ($100.00), SURF reserves the right to roll such payment over month to month until such threshold is met (unless Publisher’s account is being deactivated or terminated), at which time SURF will make the applicable payment to Publisher. SURF reserves the right to deduct from any payments due or payable to Publisher any amounts that are past due and remain uncollected by SURF from Publisher in connection with any other SURF product or service.
Publisher will not, and will not authorize or encourage any third party to, directly or indirectly, generate impressions, clickthroughs, conversions or other actions with respect to an Ad through any automated, deceptive, fraudulent or otherwise invalid means, including through repeated manual clicks, the use of “robots” or other automated tools, or by payment of money, false representation, or any illegal or otherwise invalid for end users to take actions with respect to an Ad. Notwithstanding anything to the contrary in this Publisher Agreement, SURF will not be liable for any payment (a) based on such fraudulent activity or invalid activity, as determined by SURF in its discretion, or (b) in the event of any breach by Publisher of this Publisher Agreement during any applicable pay period. SURF reserves the right to withhold payment or charge back Publisher’s account due to any of the foregoing pending SURF’s investigation, or in the event that an advertiser whose Ads are displayed in connection with Publisher Properties defaults on payment for such Ads. SURF’s records and figures will be used to determine all payments.
Publisher will provide SURF with applicable tax forms, documents, or certifications as may be required by applicable law for SURF to satisfy any information reporting and/or withholding tax obligations with respect to any payments hereunder. Where applicable, Publisher agrees that Publisher will be solely responsible for compliance with local tax regulations. Where applicable within the European Union, Publisher (A) agrees that SURF will prepare and issue VAT invoices under self-billing arrangement, (B) acknowledges and accepts the validity of such self-billed invoices, and (C) agrees that Publisher will be responsible for timely remittance to applicable tax authorities of any tax amounts on such self-billed invoices that were paid to Publisher by Surfside.
Privacy and Data.
Publisher shall clearly and conspicuously post on its website a privacy policy that is in compliance with all applicable laws, rules and regulations and industry guidelines, including the Digital Advertising Alliance Self-Regulatory Principles (as updated from time to time, the “DAA Principles”), and which identifies the nature and scope of the collection and use of data and information gathered by Publisher and its business partners, including for advertising purposes, and offers users an opportunity to opt-out from such collection and use.
With respect to Publisher Properties, Publisher will (a) comply with all applicable privacy and data laws and regulations and industry and government guidelines (including but not limited to, the Children’s Online Privacy Protection Act (COPPA) and the Digital Advertising Alliance’s Self-Regulatory Principles); and (b) provide (i) robust and sufficiently prominent notice to and obtain the necessary consent in accordance with applicable laws from users regarding the collection, sharing and use of data by SURF and its affiliates that, at a minimum, includes a clear and prominent notice that third parties, including SURF, may use cookies, web beacons, and other storage technologies to collect or receive information from Publisher Properties and use that information to provide measurement services and target ads, (ii) information on how users can opt-out of the collection and use of information for ad targeting, and (iii) information on where a user can access a mechanism for exercising such choice (e.g., providing links to: http://www.aboutads.info/choices). In jurisdictions that require informed consent for the storing and accessing of cookies or other information on an end user’s device, Publisher must ensure, in a verifiable manner, that an end user provides any necessary consent before Publisher uses the SCM Tools to enable SURF to store and access cookies or other information on the end user’s device.
Publisher will not collect or store any data collected, derived or obtained from any Ad or use of the SCM Service (“SURF Advertising Data”), except solely as necessary to implement the SCM Service in accordance with this Publisher Agreement or as otherwise specified in this Section 8.C.
Bid Response Data. Any data provided by SURF to Publisher in connection with a bid request or ad request, such as the decision to respond or not to respond to an ad request and any bid amounts (“Bid Response Data”) will be deemed SURF Advertising Data. For the avoidance of doubt, Publisher may only use Bid Response Data to determine whether the bid response is the winning bid for the applicable Ad inventory. If a bid response is not the winning bid, Publisher must not use the Bid Response Data for any purpose and will delete such data within thirty (30) minutes of receipt thereof. If a bid response is the winning bid, Publisher may only use the Bid Response Data for internal billing and auditing of the winning bid price for the Ad inventory, and Publisher will delete the Bid Response Data within ninety (90) days of receipt thereof.
Aggregate Impression Reports. In connection with the SCM Service, Publisher may provide SURF with certain data segments (on an aggregate-level basis as specified by SURF) to enable SURF to provide Publisher with reporting on aggregate revenue for such segment (“Aggregate Impression Reports”). Publisher acknowledges and agrees that such Aggregate Impression Reports will be deemed SURF Advertising Data and all restrictions under Section 5 of this Publisher Agreement will apply to the Aggregate Impression Reports, provided that Publisher may use Aggregate Impression Reports to improve and evaluate Publisher’s monetization strategy and measure return on ad spend on an aggregate-level basis and for no other purpose.
Without limiting the generality of any of the foregoing restrictions, Publisher agrees that it will not (a) collect, store, or use any information about any user derived from the Ad served by SURF to such user on the Publisher Properties, including information derived from the content of the Ad creative, a user’s engagement with the Ad, or the content accessed by a user after navigating to the Ad landing page; (b) use (i) data from the SCM Service to categorize a user of Publisher Properties as a SURF user, (ii) identifiers provided by SURF to retarget users or deliver advertising based on user behaviors apart from the SCM Service, or (iii) any SURF Advertising Data to build or enhance profiles, including any profiles associated with any personally identifiable information, mobile device identifier, or other unique identifier that identifies any particular individual, user, browser, computer or device; or (c) directly or indirectly, transfer or sell any SURF Advertising Data to any third party. In addition, with respect to Publisher Properties, Publisher will (y) deploy administrative, physical and technical safeguards that prevent unauthorized access to any SURF Advertising Data in its possession or control; and (z) provide SURF with reasonably prompt written notice as soon as it becomes aware that it has or is likely to breach any of the terms set forth in this Section.
SURF will comply with its own publicly-posted Data Policy (“Data Policy”) in connection with SURF’s performance and use of data under this Publisher Agreement. In connection with receiving inventory from Publisher Properties through the SCM Service, SURF will receive data from Publisher Properties, which may include marketing and mobile device identifiers for advertising purposes (“Specified Data”), and such Specified Data will be used in accordance with SURF’s Data Policy.
For clarity, the terms and conditions of SURF’s Terms of Service regarding the collection, sharing and use of data by SURF or its affiliates apply to the SCM Service.
Confidentiality. “Confidential Information” of a party means any and all nonpublic product plans or business plans disclosed by such party to the other party in connection with the SCM Service, and that is marked or designated as confidential at the time of disclosure. During and after the Term, each party (a) will use the same degree of care to protect the Confidential Information of the other party as it uses to protect its own most highly confidential information, but in no circumstances less than reasonable care; and (b) will not disclose the Confidential Information of the other party to any person or entity other than its officers, employees, and consultants who need access to such Confidential Information to effect the intent of this Publisher Agreement and who are bound by written confidentiality obligations consistent with this Section. The foregoing confidentiality obligations impose no obligations with respect to information which: (w) was in a party’s possession before receipt from the other party; (x) is or becomes a matter of public knowledge through no fault of a party; (y) was rightfully disclosed to a party by a third party without restriction on disclosure; or (z) is developed by a party without use of the Confidential Information of the other party as can be shown by documentary evidence. A party may make disclosures to the extent required by law or court order, provided such party makes commercially reasonable efforts to provide the other party with notice of such disclosure as promptly as possible and provides reasonable cooperation to the other party in connection with any attempt to contest or limit such disclosure. Without limiting the foregoing, Publisher will not issue any press release or otherwise make any public statements or disclosures (including to the internet press, e.g., any blogs) regarding this Publisher Agreement and the transactions contemplated hereby or consummated hereunder or about the relationship of the parties without the prior written approval of SURF. Publisher grants SURF, its affiliates, and each of their employees, agents, contractors, and designees any and all necessary rights and permissions, on a royalty-free, worldwide basis, to use Publisher’s name, the names and app icons of Publisher Properties, and the trademarks, trade names, logos, copyrights and other intellectual property provided by or through Publisher for the purpose of fulfilling Publisher’s obligations under this Publisher Agreement, for reporting purposes, and for marketing and promoting Publisher Properties to potential customers and advertisers in connection with the Program.
Term and Termination. The term of this Publisher Agreement will begin on the date set forth on the Publisher Order Form for SCM Services incorporating this Publisher Agreement and continue the earlier of the expiration date set forth in the Publisher Order Form or until terminated in accordance with this Section 10 (“Term”). This Publisher Agreement may be terminated by either party with or without cause immediately upon written notice to the other party; provided, however, that if Publisher provides written notice of termination, such termination will be deemed effective only after Publisher ceases to use the SCM Service. Sections 5, 6, 9 and 11-15 of this Publisher Agreement will survive any termination or expiration of the Publisher Agreement.
Warranties; Disclaimer.
Publisher Warranties. Publisher warrants and represents to SURF that: (i) it has the right, power and authority to enter into this Agreement and perform its obligations as set out herein; (ii) it has the right to provide any Publisher content to SURF for publication, without infringing any rights of any third party including, without limitation, intellectual property rights; (iii) the Publisher Properties are owned and controlled exclusively by Publisher; (iv) the Publisher Properties comply at all times with all applicable laws, statutes, statutory instruments, contracts, regulations, advertising and marketing codes of practice in any of the jurisdictions where Ads are displayed; (v) the Publisher Properties do not display, reference, link to, or endorse any content that violates the SURF Acceptable Use Policy; (vi) it shall not provide any data that directly identifies an individual, via its data feed or otherwise, pursuant to applicable privacy and data protection laws; (vii) the Publisher Properties are not directed to children under the age of 13 and Publisher does not, directly or indirectly, collect information from users known by Publisher to be under the age of 13, and (viii) it shall comply with all relevant laws and regulations including any guidelines or policies as made available by SURF.
Disclaimer. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY HERETO MAKES ANY ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. ALL OTHER EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW. EACH PARTY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, QUIET ENJOYMENT AND NON-INFRINGEMENT. SURF GIVES NO WARRANTY OR CONDITION, EXPRESS OR IMPLIED, WITH RESPECT TO ANY MATTER AND, IN PARTICULAR, BUT WITHOUT LIMITATION, EXPRESSLY DISCLAIMS ANY WARRANTIES OR CONDITIONS OF NON-INFRINGEMENT OR THE QUALITY OR FITNESS FOR ANY PARTICULAR PURPOSE OF THE SURF TOOLS OR ANY SURF SERVICE PROVIDED UNDER THE PUBLISHER AGREEMENT. SURF DOES NOT WARRANT THAT THE PRODUCTS OR SERVICES PROVIDED BY SURF ARE ERROR-FREE OR THAT OPERATION OF SUCH PRODUCTS OR SERVICES WILL BE SECURE OR UNINTERRUPTED AND IT IS POSSIBLE THAT THE SURF SERVICE MAY BE INACCESSIBLE, UNAVAILABLE, OR INOPERABLE FROM TIME TO TIME. SURF MAKES NO REPRESENTION OR WARRANTY ABOUT THE RESULT PUBLISHER WILL OBTAIN THROUGH THE SURF SERVICE INCLUDING THE LEVEL OF PRODUCT ADS SERVED, CLICKS ON ANY AD, OR FEES OR THE TIMING OF DELIVERY OF SUCH IMPRESSIONS AND/OR CLICKS UNDER THESE TERMS. NEITHER PARTY MAY MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF THE OTHER PARTY TO ANY THIRD PARTY.
Limitation of Liability.
Disclaimer of Consequential Damages. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, RELIANCE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, LOST OR DAMAGED DATA, LOST PROFITS OR LOST REVENUE, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY THEREOF. NOTHING IN THIS SECTION 12.AWILL BE CONSTRUED TO LIMIT A PARTY’S OBLIGATION TO INDEMNIFY THE OTHER PARTY PURSUANT TO S13FOR DAMAGES AWARDED TO A THIRD PARTY, EVEN IF SUCH DAMAGES ARE CHARACTERIZED AS CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES SUFFERED BY THAT THIRD PARTY.
General Cap on Liability. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, EXCEPT FOR A BREACH OF SECTION 8, UNDER NO CIRCUMSTANCES WILL A PARTY’S LIABILITY FOR ALL CLAIMS ARISING UNDER OR RELATING TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE FEES PAID BY PUBLISHER TO SURF UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT. NOTHING IN THIS SECTION 12 WILL LIMIT A PARTY’S OBLIGATION TO INDEMNIFY THE OTHER PARTY PURSUANT TO SECTION 13 FOR DAMAGES AWARDED TO A THIRD PARTY.
Independent Allocations of Risk. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, EXCEPT FOR A BREACH OF SECTION 8, UNDER NO CIRCUMSTANCES WILL A PARTY’S LIABILITY FOR ALL CLAIMS ARISING UNDER OR RELATING TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE FEES PAID BY PUBLISHER TO SURF UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT. NOTHING IN THIS SECTION 12 WILL LIMIT A PARTY’S OBLIGATION TO INDEMNIFY THE OTHER PARTY PURSUANT TO SECTION 13 FOR DAMAGES AWARDED TO A THIRD PARTY.
Indemnification.
Claims against Publisher. SURF will defend, at its own expense, any claim, suit or action against Publisher brought by a third party to the extent that such claim, suit or action is based upon an allegation that the SCM Services or SCM infringes any patent or trade secret of such third party (“Publisher Claim”), and SURF will pay those costs and damages finally awarded against Publisher in any such Publisher Claim that are specifically attributable to such Publisher Claim or those costs and damages agreed to in a monetary settlement of such Publisher Claim. The foregoing obligations are conditioned on Publisher: (a) promptly notifying SURF in writing of such Publisher Claim; (b) giving SURF sole control of the defense thereof and any related settlement negotiations; and (c) cooperating and, at SURF’s request and expense, assisting in such defense. In the event that the use of the SURF Services or SCM Tools are enjoined, SURF shall, at its option and at its own expense either (i) procure the right to continue using the SCM Services and SCM Tools, (ii) replace the SCM with a non-infringing but functionally equivalent product, or (iii) modify the SCM Services and SCM Tools so it becomes non-infringing. Notwithstanding the foregoing, SURF will have no obligation under this Section 13.A or otherwise with respect to any infringement claim based upon: (1) any use of the SCM not in accordance with this Publisher Agreement; (2) any use of the SCM in combination with products, equipment, software, or data not supplied or approved by SURF if such infringement would have been avoided without the combination with such other products, equipment, software or data; or (3) any modification of SCM Tools by any person other than SURF or its authorized agents or subcontractors. This Section 13.A states SURF’s entire liability and Publisher’s sole and exclusive remedy for infringement claims or actions.
Claims against SURF. Publisher will defend, at its own expense, any claim, suit or action against SURF brought by a third party to the extent that such claim, suit or action arising out of or related to the Publisher Properties or is based upon use of the Specified Data by SURF (“SURF Claim”), and Publisher will pay those costs and damages finally awarded against SURF in any such action that are specifically attributable to such SURF Claim or those costs and damages agreed to in a monetary settlement of such SURF Claim. The foregoing obligations are conditioned on SURF: (a) promptly notifying Publisher in writing of such SURF Claim; (b) giving Publisher sole control of the defense thereof and any related settlement negotiations; and (c) cooperating and, at Publisher’s request and expense, assisting in such defense. Notwithstanding the foregoing, Publisher will have no obligation under this Section 13.B or otherwise with respect to any SURF Claim to the extent based upon any use of the Specified Data by SURF in violation of this Publisher Agreement.
Third Party Software. Notwithstanding the provisions of this Publisher Agreement, other license terms may apply to certain software files contained within or distributed with the SCM Service that are specifically identified in related documentation, including any license, notice or readme files (collectively, “Third Party Software”). Such Third Party Software license terms shall apply to the corresponding Third Party Software file in lieu of the terms set forth in this Publisher Agreement. Publisher acknowledges and agrees that the SCM Services contains files built with open source code, and that Publisher’s license to use, make available and distribute such files in Publisher Properties is conditioned on Publisher providing to users of the Publisher Properties the proper notices and disclaimers with respect to such open source code (collectively, the “Open Source Notice”) and that SURF may terminate Publisher’s license to use the SCM Services if Publisher fails to provide the Open Source Notice to Publisher’s users. The required form of Open Source Notice can be found in the Documentation.
General.
Terms of Service. This Publisher Agreement govern Publisher’s use of the SCM Service. The SCM Service (including the SCM Tools) is a SURF Product under SURF’s Terms of Service (“Terms of Service”), which is incorporated herein by reference. In the event of any conflict or inconsistency between the provisions of this Publisher Agreement and the provisions of the Terms of Service, the provisions of this Publisher Agreement will control, but only with respect to the subject of this Publisher Agreement. The provisions of the Terms of Service will survive any termination or expiration of this Publisher Agreement to the extent Publisher continues to use any other features or services of SURF thereafter.
No Assignment. Publisher shall not without SURF’s prior written consent assign at law or in equity or sublicense in any other manner this Publisher Agreement or any rights under the Publisher Agreement.
Compliance with Laws. Each party will comply with all applicable laws, rules, regulations, orders and other requirements, now or hereafter in effect, of governmental authorities having jurisdiction in connection with its activities under this Publisher Agreement. In connection with Publisher’s participation in the Program, Publisher will comply with all laws that govern marketing email (e.g., the CAN-SPAM Act of 2003), user privacy and data security. For any Ads served to end users located in the U.S., Publisher will at all times comply with the Digital Advertising Alliance’s (DAA) Self-Regulatory Principles for Online Behavioral Advertising (including the Mobile Guidance issued by the DAA in July 2013) set forth at www.aboutads.info (or any successor website). For any Ads served to end users located in the E.U., Publisher will at all times comply with the European Interactive Digital Advertising Alliance’s European Principles, set forth at http://www.edaa.eu (or any successor website). If Publisher Properties are available through another distribution program, Publisher agrees that any information Publisher makes available to a third party regarding Publisher’s use of any advertising identifier in Publisher Properties will be accurate and complete, and that Publisher will properly honor any requirement of that program regarding the tracking of Ads in Publisher Properties.
Feedback. Publisher agrees that submission of any ideas, suggestions, documents, and/or proposals to SURF, including through its suggestion, feedback, wiki, forum, or similar pages (“Feedback”) is at your own risk and that SURF has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. Publisher represents and warrants that it has all rights necessary to submit the Feedback. Publisher hereby grants to SURF a fully paid, royalty-free, perpetual, irrevocable, worldwide, and non-exclusive right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the SCM Services and/or SURF’s business.
No Waiver. The failure of either party to insist upon or enforce performance by the other party of any provision of this Publisher Agreement, or to exercise any right or remedy under this Publisher Agreement or otherwise by law, will not be construed as a waiver or relinquishment of such party’s right to assert or rely upon the provision, right, or remedy in that or any other instance; rather the provision, right or remedy will be and remain in full force and effect. If any provision of the Publisher Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity or enforceability shall not effect the other provisions of the Publisher Agreement which shall remain in full force an effect.
Applicable Law and Venue. This Publisher Agreement will be interpreted, construed and enforced in all respects in accordance with the laws of the State of New York, without reference to its rules relating to choice of law to the contrary. Publisher and SURF hereby exclusively consent to the jurisdiction of the state and federal courts located in New York, NY, with respect to any lawsuit it initiates arising under or by reason of this Publisher Agreement. Neither party will prosecute any action, suit, proceeding or claim arising under or by reason of this agreement except in such courts.
Entire Publisher Agreement. This Publisher Agreement constitutes the entire agreement, and supersedes any and all prior agreements, between SURF and Publisher with respect to the subject matter hereof; provided, however, to the extent any provision of SURF’s terms of service for SCM are not addressed in this Publisher Agreement, those terms will also apply to the extent applicable to Publisher. Except as otherwise provided in this Publisher Agreement, no amendment, modification or waiver of any provision of this Publisher Agreement will be valid unless set forth in a written instrument signed by the party to be bound thereby.