LAST UPDATED: 07/07/2016
These Terms and Conditions (these “Terms”) are by and between Pelican Software SRL d/b/a (“Pubsio”) and the individual or entity using the Services (“Publisher” or “you” or “your”). BY USING ANY OF THE SERVICES, PUBLISHER ACKNOWLEDGES THAT PUBLISHER HAS REVIEWED AND ACCEPTS THESE TERMS. IF YOU ARE AGREEING TO THESE TERMS AS AN INDIVIDUAL, “PUBLISHER” OR “YOU” OR “YOUR” REFERS TO YOU INDIVIDUALLY. IF YOU ARE AGREEING TO THESE TERMS AS A REPRESENTATIVE OF AN ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY, AND “PUBLISHER” OR “YOU” OR “YOUR” REFERS TO THAT ENTITY AND ANY USERS USING PUBLISHER’S ACCOUNT. IF PUBLISHER DOES NOT AGREE WITH THESE TERMS IN THEIR ENTIRETY, DO NOT ACCESS OR OTHERWISE USE THE SERVICES. PUBSIO MAY MAKE CHANGES TO THESE TERMS AT ANY TIME. PUBSIO WILL POST NOTICE OF THE UPDATED TERMS AT WWW.PUBSIO.COM. PUBLISHER’S CONTINUED USE OF THE SERVICES AFTER SUCH CHANGES HAVE BEEN POSTED WILL SIGNIFY PUBLISHER’S ASSENT TO AND ACCEPTANCE OF THE REVISED TERMS.
“Confidential Information” means all written or oral information, disclosed by either party to the other, related to either party or a third party, that has been identified as confidential or that by the nature of the circumstances surrounding disclosure ought reasonably to be treated as confidential, including, without limitation, trade secrets, know-how, technology specifications, customer lists, sales, cost or other unpublished financial information or marketing data. Confidential Information includes without limitation, Pubsio’s proprietary processes and information associated with the Services, any related data of Pubsio, these Terms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes of either party.
“Intellectual Property Rights” means all intellectual property rights or similar proprietary rights, including (a) patent rights and utility models, (b) copyrights and database rights, (c) trademarks, trade names, domain names and trade dress and the goodwill associated therewith, (d) trade secrets, (e) mask works, and (f) industrial design rights; in each case, including any registrations of, applications to register, and renewals and extensions of, any of the foregoing in any jurisdiction in the world. Intellectual Property Rights also include any and all rights associated with particular information that are granted by law and that give the owner, independent of contract, exclusive authority to control use or disclosure of the information, including enforceable privacy rights and any rights in databases recognized by applicable law.
“Publisher Websites” means those Publisher websites, mobile applications and/or other properties approved by Pubsio pursuant to these Terms.
“Services” means Pubsio’s online advertising and marketing services which include the provision of advertisements and other content to Publisher Websites.
You must sign up and register to access the Services. If you desire to register for an account with Pubsio, you must submit the information required on the account registration page, including the websites (i.e., URLs) you would like to have approved by Pubsio. Once you have submitted your account registration information, the Pubsio administrator will have the right to approve or reject the requested registration, in the Pubsio administrator’s sole discretion. Please note that Publisher and all of its websites and affiliated websites must, at a minimum, meet the following criteria: (a) be content-based, and not simply a list of links or advertisements, (b) not have been created for the sole purpose of profiting from Pubsio’s advertisers, and (c) be fully-functional at all levels (e.g., no "under construction" sites or sections).
Online reporting is provided by Pubsio.com in real time, and Publisher may view the available reports within the Services reporting system at any time. The reports reflect commercially accepted methods and practices to direct and measure traffic. Publisher may not place any advertisements generated from the Services on alternative publishers or websites without the prior written consent and approval of Pubsio. Publisher will not place advertisements generated from the Services on pornographic/offensive sites, warez, illegal MP3 sites/directories, P2P/Bit-Torrent sites, spyware or malicious code of any sort and/or alternatively questionable areas. In the event advertisements from the Services are placed by Publisher on alternative publishers or websites without the prior written consent and approval of Pubsio, Pubsio reserves the right to withhold payment otherwise due Publisher hereunder and/or submit an immediate legal action against the Publisher.
Publisher hereby grants Pubsio the right to provide the Services to Publisher Websites. Publisher may discontinue its use of the Services at any time by removing the Pubsio Code from Publisher Websites. Subject to the terms and conditions contained in these Terms, Pubsio hereby grants Publisher (a) a non-exclusive, non-transferable right to access the features and functions of the Services solely as set forth herein and (b) a non-exclusive, non-transferable, non-sublicensable license to use the Pubsio Code solely as set forth herein. The Services are made available to Publisher solely as hosted by or on behalf of Pubsio, and nothing in these Terms will be construed to grant Publisher any right to receive any copy of the Services or any software.
5.1. Usage Restrictions. Publisher will not (a) copy or duplicate any portion of the Services; (b) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any software component of the Services is compiled or interpreted, or apply any other process or procedure to derive the source code of any software included in the Services, or attempt to do any of the foregoing, and Publisher acknowledges that nothing in these Terms will be construed to grant Publisher any right to obtain or use such source code; (c) modify, alter, tamper with or repair the Services, or create any derivative product from any of the foregoing, or attempt to do any of the foregoing, except with the prior written consent of Pubsio; (d) interfere or attempt to interfere in any manner with the functionality or proper working of the Services; (e) remove, obscure, or alter any notice of any intellectual property or proprietary right appearing on or contained within the Services; or (f) assign, sublicense, sell, resell, lease, rent or otherwise transfer or convey, or pledge as security or otherwise encumber Publisher’s rights under these Terms and Conditions. Publisher will not use the Services except in compliance with Pubsio’s obligations to any third party with respect thereto. Publisher will ensure that its use of the Services complies with all applicable laws, statutes, regulations or rules and will not use or compile any data from the Services for the purpose of any illegal activities.
5.2. Children. The Services may not be used: (i) on or with respect to any “website or online service that is directed towards children”, as defined by the Children’s Online Privacy Protection Act Rule, 16 C.F.R., Part 312, as amended (“COPPA”)); (ii) in order to target, contact or reach any children; (iii) to collect any “personal information” (as defined by COPPA) from children under the age of 13.
6.1. Publisher Earnings. You and Pubsio agree to a revenue share arrangement based on placements generated by Pubsio. The source of data for these placements will be Pubsio reports for the purposes of billing and general information.
6.2. Payments. Publisher will be paid daily by Pubsio following the end of each day provided the amount due is more than USD $100. If the amount due is less than USD $100, then its payment may be deferred and added to future amounts due on subsequent days until the cumulative amount due exceeds $100. Payments will be made using an established third party online payment system as determined by Pubsio.com (for example, without limitation, PayPal or Payza). You are responsible for providing and maintaining accurate contact and payment information in your account. Payments will be calculated solely based on Pubsio’s accounting. Pubsio may, in its sole discretion, refuse to process a payment (and may place a payment hold) on any part of your account for any reason, including if Pubsio has a reasonable suspicion that you have breached these Terms. Pubsio also reserves the right to offset any amounts you owe Pubsio, including for breaches of these Terms. Pubsio assumes no responsibility for paying any taxes on payments made to you, and you acknowledge and agree that it is your complete and sole responsibility to pay for all taxes as a consequence of your use of the Services. In certain cases, Pubsio may withhold all payments until such time as Pubsio receives necessary tax documentation from you.
7.1. Ownership of Confidential Information. The parties acknowledge that during the performance of these Terms, each party will have access to certain of the other party’s Confidential Information or Confidential Information of third parties that the disclosing party is required to maintain as confidential. Both parties agree that all items of Confidential Information are proprietary to the disclosing party or such third party, as applicable, and will remain the sole property of the disclosing party or such third party.
7.2. Mutual Confidentiality Obligations. Each party agrees as follows: (a) to use Confidential Information disclosed by the other party only for the purposes described herein; (b) that such party will reproduce Confidential Information disclosed by the other party only in accordance with, and will hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party subject to, these Terms; (c) that neither party will create any derivative work from Confidential Information disclosed to such party by the other party except as permitted by these Terms; (d) to restrict access to the Confidential Information disclosed by the other party to such of its personnel, agents, and/or consultants, if any, who have a need to have access and who have been advised of and have agreed in writing to treat such information in accordance with these Terms; and (e) to return or destroy, all Confidential Information disclosed by the other party that is in its possession upon termination of these Terms. Notwithstanding the foregoing, Publisher agrees that Pubsio may collect aggregated statistical data regarding Publisher’s use of the Services and provide such aggregated statistical data to third parties. In no event will Pubsio provide to third parties specific data regarding Publisher.
7.3. Confidentiality Exceptions. Notwithstanding the foregoing, the provisions of Sections 7.1 and 7.2 will not apply to Confidential Information that (a) is publicly available or in the public domain at the time it is disclosed; (b) is or becomes publicly available or enters the public domain through no fault of the recipient; (c) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (d) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (e) is independently developed by the recipient; or (f) is approved for release or disclosure by the disclosing party without restriction. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order will first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (ii) to establish a party’s rights under these Terms, including to make such court filings as it may be required to do.
8.1. Pubsio Ownership. Except for the rights expressly granted by Pubsio to Publisher under these Terms, as between the parties Pubsio owns and retains all right, title and interest in and to the Services, the Pubsio Code and all of Pubsio’s content, including without limitation, information, text, graphics, links, documents, data, materials, tools, icons, audio, visual, software, symbols, and characters incorporated into and available through the Services, and all Intellectual Property Rights therein (collectively, the “Pubsio IP”). Except as otherwise set forth in these Terms, nothing contained in these Terms will be construed as conferring upon Publisher, by implication, operation of law or otherwise, any other license or other right in or to the Pubsio IP. Publisher will not take any action inconsistent with Pubsio’s ownership of the Pubsio IP.
8.2. Feedback. If Publisher sends or transmits any communications, comments, questions, suggestions, or related materials to Pubsio, whether by letter, e-mail, telephone, or otherwise (“Feedback”), suggesting or recommending changes to the Services, including, without limitation, new features or functionality relating thereto, all such Feedback is, and will be exclusively owned by Pubsio. Publisher hereby assigns all right, title, and interest in, and Pubsio is free to use, without any attribution or compensation to Publisher, any ideas, know-how, concepts, techniques, and all applicable intellectual property rights relating to the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. Publisher agrees and understands that Pubsio is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and Publisher has no right to compel such use, display, reproduction, or distribution.
9.1. Mutual Warranties. Each party hereby represents and warrants (a) that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization, (b) that the Agreement constitutes a valid and binding obligation of such party and will be enforceable against such party in accordance with its terms and (c) that it will comply with any and all local, state and/or national laws, and/or regulations applicable to such party.
9.2. Disclaimer. EXCEPT AS EXPRESSLY REPRESENTED OR WARRANTED IN SECTION 9.1, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND THE PUBSIO CODE ARE PROVIDED “AS IS” AND PUBSIO, ITS LICENSORS AND SUPPLIERS DISCLAIM ANY AND ALL OTHER PROMISES, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, RESULTS OF USE, RELIABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, INTERFERENCE WITH QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. FURTHER, PUBSIO, ON BEHALF OF ITSELF AND ITS LICENSORS AND SUPPLIERS, DOES NOT WARRANT THAT THE SERVICES OR THE PUBSIO CODE WILL MEET PUBLISHER’S REQUIREMENTS OR THAT THE OPERATION OF THE SERVICES WILL BE ERROR-FREE, UNINTERRUPTED, VIRUS-FREE OR SECURE, OR THAT ALL ERRORS WILL BE CORRECTED.
9.3. Exclusions of Remedies; Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL PUBSIO OR ITS LICENSORS OR SUPPLIERS BE LIABLE TO PUBLISHER OR TO ANY THIRD PARTY UNDER ANY TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR (A) ANY LOST PROFITS, LOST OR CORRUPTED DATA, COMPUTER FAILURE OR MALFUNCTION, INTERRUPTION OF BUSINESS, OR OTHER SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICES OR (B) ANY DAMAGES, IN THE AGGREGATE, IN EXCESS OF ONE-THOUSAND DOLLARS ($1,000), EVEN IF PUBSIO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES AND WHETHER OR NOT SUCH LOSS OR DAMAGES ARE FORESEEABLE. IN ADDITION, PUBSIO DISCLAIMS ALL LIABILITY OF ANY KIND ON BEHALF OF ANY OF PUBSIO’S SUPPLIERS AND LICENSORS.
9.4. Essential Basis of the Agreement. Publisher acknowledges and understands that the disclaimers, exclusions and limitations of liability set forth in this Section 9 form an essential basis of the agreement between the parties, that the parties have relied upon such disclaimers, exclusions and limitations of liability in negotiating the terms and conditions in these Terms, and that absent such disclaimers, exclusions and limitations of liability, the terms and conditions of these Terms would be substantially different.
Publisher will defend Pubsio against any and all actions, demands, claims and suits and indemnify and hold Pubsio harmless from any and all liabilities, damages and costs (including without limitation reasonable attorneys’ fees) to the extent arising out of: (a) Publisher Websites, (b) Publisher’s use of the Services, (c) Publisher’s fraud, gross negligence or willful misconduct or (d) Publisher’s breach or violation of these Terms. In the event Pubsio seeks indemnification or defense from you under this provision, Pubsio will promptly notify you in writing of the claim(s) brought against Pubsio for which it seeks indemnification or defense. Pubsio reserves the right, at its option and sole discretion, to assume full control of the defense of claims with legal counsel of its choice. You may not enter into any third party agreement, which would, in any manner whatsoever, affect the rights of Pubsio, constitute an admission of fault by Pubsio or bind Pubsio in any manner, without the prior written consent of Pubsio. In the event Pubsio assumes control of the defense of such claim, Pubsio will not settle any such claim requiring payment from you without your prior written approval.
These Terms remain in effect until terminated in writing by either party upon written notice 24-hours in advance. Further, these Terms will automatically and immediately terminate upon the dissolution or insolvency of either party, or the breach of these Terms by You. Pubsio reserves the right, in its sole and absolute discretion, to terminate a campaign and remove any advertisements at any time for any reason or no reason.
12.1. Entire Agreement.
These Terms constitute the entire agreement, and supersede all prior negotiations, understandings or agreements (oral or written), between the parties about the subject matter of these Terms. No oral statements or prior written material not specifically incorporated herein will be of any force and effect, and no changes in or additions to these Terms will be recognized unless incorporated herein by amendment as provided herein and signed by duly authorized representatives of both parties. The application of Publisher’s general terms and conditions in any general vendor acknowledgement or Publisher’s other general purchasing conditions (including pre-printed boilerplate terms) are hereby expressly excluded, rejected, and objected to by Pubsio. These Terms will apply and supersede the pre-printed terms and conditions of any form submitted by either party, unless such form is expressly included herein.
12.2. Waivers, Consents and Modifications.No waiver, consent or modification of these Terms will bind Pubsio or Publisher unless in writing and signed by the party against which enforcement is sought. These Terms may be modified solely upon the written agreement of both Publisher and Pubsio. The failure of either party to enforce its rights under these Terms at any time for any period will not be construed as a waiver of such rights.
12.3. Severability. If any provision of these Terms is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable.
12.4. Governing Law. The laws of the Barbados, excluding its conflicts of law rules, govern these Terms. The exclusive jurisdiction and venue of any action arising out of or related to these Terms will be the courts for St. Michael parish, Barbados and the parties agree and submit to the personal and exclusive jurisdiction and venue of these courts. Neither the United Nations Convention on Contracts for the International Sale of Goods nor any implementation of the Uniform Computer Information Transactions Act in any jurisdiction will apply to these Terms.
12.5. Force Majeure. In the event that either party is prevented from performing, or is unable to perform, any of its obligations under these Terms (except payment obligations) due to any cause beyond its reasonable control, the affected party will give written notice thereof to the other party and its performance will be extended for the period of delay or inability to perform due to such occurrence.
12.6. Notices. Any notice or communication hereunder will be in writing and either personally delivered or sent via confirmed facsimile, recognized express delivery courier or certified or registered mail, prepaid and return receipt requested, addressed to the other party, which, in the case of Publisher, will be the address provided to Pubsio upon signing up for the Services, and, in the case of Pubsio, will be the address set forth in the contact section of Pubsio’s website. All notices will be in English, effective upon receipt.
12.7. Assignment. Publisher may not assign its rights or obligations under these Terms either in whole or in part.
12.8. Survival. The provisions titled “Confidentiality,” “Proprietary Rights,” “Warranties, Disclaimers, Exclusions and Limitations on Liability,” “Indemnification” and “General Provisions” will survive termination of these Terms.
12.9. Independent Contractors. The parties will be independent contractors under these Terms, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint ventures or partners for any purpose.