1.2 By submitting your application to Prodnostic and / or your continued use of the Service you are confirming that either:
(a) you are a Publisher intending to enter into the Agreement with Prodnostic in a personal capacity, and that you agree to comply with its terms and conditions; or
The Agreement between Prodnostic and Publisher is created on acceptance by Prodnostic of the Publisher’s application in accordance with clause 5.1.
2.1 This Agreement covers use by Publisher of the proprietary, online, login-protected, web-based portal and applications to manage and track performance marketing media owned and operated by Prodnostic (the “Platform”), at www.prodnostic.com (and other URLs used by Prodnostic from time to time), and all other performance marketing-related services provided by Prodnostic.
Prodnostic’s proprietary, login-protected web portal that may be accessed by Publishers at app.prodnostic.com to access and configure Tools, view performance and billing reports, and search for participating Merchants.
2.2 Through the Platform, Prodnostic tracks media, facilitates relationships between Merchants and Monetization Partners and the Publisher and enables the Publisher to configure Tools, search for Participating Merchants and Monetization Partners, view billing performance and process payments for such relationships. A “Merchant” is a supplier of goods and/or services which is included and listed on the Platform at the time of the relevant Sale. Before Publisher can use the Platform, this Agreement must be accepted in full by clicking through acceptance. Prodnostic controls and operates its Platform and website(s) from its offices in the U.S.A. and access or use where illegal is prohibited.
3.1 In this Agreement, the following expressions have the following meanings:
an entity providing an affiliate marketing service on behalf of multiple Merchants.
as defined in clause 14
means the proprietary content (which may, at Prodnostic’s discretion, comprise text, images, audio, video and/or other material) that Prodnostic makes available to the Publisher pursuant to an Agreement.
means Tools when used on Content.
A partner of Prodnostic’s that offers monetisation methods outside of Affiliate Networks.
the Publisher’s share of the Total Revenue, as determined in accordance with clause 12.
following a referral of a End User from the Publisher’s website to a Merchant or Monetization Partner’s website, a supply of goods and/or services by such Merchant or Monetization Partner to such End User during the cookie life-time (as prescribed by such Merchant or Monetization Partner).
means access to and use of (i) the Platform, and (ii) the Tools.
means Prodnostic’s affiliate marketing and monetization technologies which Publishers can use with the purpose of earning Publisher Revenue and obtaining insights via the Platform.
information collected or created by the use of the Service.
a user of the Publisher Channels (as defined in Sec 5.2 ), that is referred to a Merchant or Monetization Partner via the Service and/or interacts with the Merchant or Monetization Partner by purchasing goods and/or services or providing the Merchant or Monetization Partner with some other benefit (including, but not limited to, registering with the Merchant or Monetization Partner’s website or subscribing to a newsletter).
4. Terms of Platform Access
4.1 License: Prodnostic grants to Publisher a revocable, limited, non-exclusive and non-transferable license permitting Publisher to use the Platform and participate with Merchants and Monetization Partners. All other rights in and to the Platform are reserved by Prodnostic. The Platform includes: (i) the secure portions of the URL www.prodnostic.com (and all other URLs from which the Platform can be accessed and used); (ii) the content offered from the Platform; (iii) the Platform’s look and feel, graphic user interface and functionality; and (iv) the software (in object code and source code format) that powers the Platform and that is used to provide the functionality and content on it.
4.2 Authorized Users: Publisher shall select Authorized Users to set-up access on the respective account of the Publisher on the Platform (the “Publisher Account”). “Authorized Users” means individuals who are authorized by Publisher to use the Platform, and who have set up user identifications and passwords. Authorized Users may include but are not limited to Publisher’s employees, consultants, contractors, &/or agents. Publisher acknowledges and agrees that it is solely responsible and liable for Authorized Users’ use and/or access of Publisher’s Account. Each Authorized User must have a unique log-in and password, which may not be shared. Publisher shall maintain accurate and complete information in Publisher’s Account. Publisher shall notify Prodnostic in writing immediately if Publisher becomes aware of any unauthorized use of Publisher’s Account.
4.3 Platform Use Obligations. Publisher must at all times utilize the Platform for its intended purpose. Further, Publisher must promote each Merchant and Monetization Partner using only those methods approved or prescribed by the Merchant and Monetization Partner.
(a) Prohibited Methods. Unless explicitly authorized, Publisher shall not promote a Merchant or Monetization Partner using the following means:
(i) provision of leads obtained other than through intended consumer (“End User”) action (e.g. through scraping or other data mining, or through use of compilations of personal data);
(ii) use of fake redirects, automated software, or other mechanisms to generate Actions; or
(iii) Actions that are not in good faith, such as those using any device, robot, Iframes or hidden frames.
(b) Prohibited Technology. "Adware" is software, including ad-serving mechanisms, that an End User might not realize has been downloaded onto their computer to monitor their on-line activities. “Spyware" is software downloaded to an End User’s computer that collects the End User’s personal data or other information about the person using the computer without their prior consent and for the purpose of financial gain. "Malware" is any software downloaded to an End User’s computer that might be harmful. Publisher may not include Adware, Spyware, or Malware in Publisher’s use of Creative.
(c) Rules for Using Applications to Deliver Creative. If Publisher uses applications to deliver Content, and those applications are not Adware, Spyware or Malware, such use must be disclosed to the End User with a clear and concise description of the core functionality of the applications (including a description of that functionality that is Publisher’s source of revenue). Further, Publisher must:
(i) Get the End User’s consent to download/install the application, and agree to the appropriate End User License Agreement (“EULA”), before installation.
(ii) Not distribute the application using an Active X (or similar) install.
(iv) Brand clearly all advertisements by the company advertised.
(v) Enable the application to be fully removable using the add/remove programs feature on the computer.
(vi) Include an uninstaller on the application that entirely disables the application (and does not reinstall it).
(vii) Neither require the End User to visit a website or provide personal data or feedback before uninstalling the application, nor require Internet access to uninstall.
(viii) Use industry standard verification methods and automatic updates should not change the core functionality of the application without additional disclosures to and consent of the End User.
(ix) Not monitor keystrokes, emails, instant messages, open programs or documents unless the End User has affirmatively and knowingly opted-in to such activities.
(x) Not cause damage to, or remove, any component of the End User’s operating system or winsock files.
(xi) Not use any means to remove or disable any security, anti-spyware or antivirus software on End User’s computer.
(d) Further Requirements. Publisher agrees that when using the Platform it will only publish, transmit, upload and/or distribute information, data, content and material about Merchants and Monetization Partners that is legal, proper, decent, honest and accurate. If Publisher intends to use incentives to promote a Merchant or Monetization Partner and procure clicks, leads or sales, Publisher is required to notify Prodnostic in advance, and Publisher’s use of incentives must be in a bona fide way. Additionally, Publisher must not:
(i) depict nudity of any sort (including cartoons, fantasy art or manga).
(ii) misrepresent the source of anything posted or uploaded, including impersonation of another individual or entity.
(iii) include unauthorized content of someone else’s violating their intellectual property rights, rights of privacy or publicity, or any other applicable law.
(iv) harm or exploit minors in any way.
(v) violate any applicable law including.
(vi) threaten, stalk, defame, defraud, degrade, victimize or intimidate an individual or group of individuals for any reason; including on the basis of age, gender, disability, ethnicity, sexual orientation, race or religion; or incite or encourage anyone else to do so.
(vii) harm or disrupt, or intend to harm or disrupt, an End User's computer.
(viii) contain or be considered to contain 'junk mail', 'spam', 'chain letters', or 'pyramid schemes'.
(ix) attempt to manipulate services of others, including but not limited to ranking and reputation systems, or collude with others to do any of the foregoing.
4.4 Additional Services. Prodnostic may at Prodnostic’s discretion offer additional services for a fee to Publisher that Publisher may elect to opt-in to using.
4.5 Platform Availability: Prodnostic shall use commercially reasonable efforts to ensure Platform availability. However, Publisher acknowledges that Prodnostic cannot guarantee connectivity, accuracy, access, or uninterrupted enjoyment or use. Prodnostic shall endeavor to keep unavailability of the Platform due to maintenance and support to a minimum.
4.6 Merchant and Monetization Partner Relationships: Publisher’s relationships with Merchants and Monetization Partners are in Publisher’s sole discretion. Publisher is solely responsible for analyzing, researching, and complying with all relevant legal and tax requirements. Prodnostic is not responsible for the accuracy and completeness of such information.
5. The Service
5.1 Prodnostic may approve or reject an application to register for the Service at its entire discretion. If Prodnostic decides to reject an application, it is not obliged to provide the Publisher with its reasons for doing so. If Prodnostic approves an application, it will notify the Publisher by email, and the Publisher will then be able to access and use the Service.
5.2 The Publisher acknowledges and agrees that its registration for the Service is specific to the Publisher’s End User-facing content platforms, including but not limited to Publisher’s website, mobile application, newsletter and social media account, set out in the Publisher’s application (the “Publisher Channels”), and that it may not use the Service in relation to any Publisher Channel other than those for which it has Prodnostic’s prior permission.
5.3 If the Publisher wishes to use the Service in relation to any additional or alternative Publisher Channel then the Publisher may request (via the Platform) that such Publisher Channels are added to its registration (an “Additional Publisher Channel Request”). Prodnostic may approve or reject each Additional Publisher Channel Request at its entire discretion. If Prodnostic decides to reject an Additional Publisher Channel Request, it is not obliged to provide the Publisher with its reasons for doing so. If Prodnostic approves an Additional Publisher Channel Request, it will notify the Publisher by email, and the Publisher will then be able to access and use the Service in relation to such additional or alternative Publisher Channel.
6. Merchants and Monetization Partners
6.1 The Publisher acknowledges and agrees that:
6.1.1 Prodnostic may from time to time, and with immediate effect, integrate or exclude any Merchants and Monetization Partners into the Service.
6.1.2 Merchants and Monetization Partners may from time to time, and with immediate effect, vary commission rates and offers and the way in which Total Revenue is calculated;
6.1.4 changes pursuant to clauses 6.1.1, 6.1.2 or 6.1.3 will only be notified to the Publisher by way of updates to the Platform when possible, and it is the Publisher’s responsibility to check the Platform to ensure that the Publisher is up to date with such changes; and
6.1.5 a Merchant or Monetization Partner may at any time send Prodnostic a notice requesting that the Publisher remove links or references to the Merchant or Monetization Partner’s brands, products, or trademarks. Prodnostic will communicate this notice to the Publisher, and the Publisher agrees to remove such links or references as soon as reasonably practicable (and in any event within five (5) working days of receiving the notice from Prodnostic).
7. Use of Tools and Content
7.1 In order to use any Tools, the Publisher acknowledges that Prodnostic reserves the right to monitor the Publisher’s use of the Tools to ensure they are being used by the Publisher in accordance with the Agreement. Whether the Publisher’s use of the Tools is in accordance with the Agreement shall be determined by Prodnostic in its sole discretion.
7.2 With respect to Content:
7.2.1 the licence granted to the Publisher to use the Content is limited to, and the Publisher shall use the Content solely for Publisher Channels on which the Publisher is concurrently using the Content Tools (“Permitted Purpose”);
7.3 Notwithstanding any other term or condition set out in the Agreement, Prodnostic reserves the right at any time in its sole discretion, without notice or liability to the Publisher: (i) to refuse to permit the Publisher to use any one or more of the Tools; and (ii) to amend the measures taken to protect against inappropriate use of the Service.
8. Service Availability
8.1 Prodnostic will use its reasonable endeavours to ensure that the Service works on the Publisher Channels, but gives no warranty that the Service will achieve any minimum availability or response targets.
8.2 The Publisher agrees to notify Prodnostic promptly of any Service availability or performance issues via e-mail or via the Platform. Prodnostic will use reasonable endeavours to correct any reported issues as soon as reasonably practicable.
9. Service Suspension
9.1 If Prodnostic has reasonable grounds to believe that the Publisher is not using the Service in accordance with the terms of the Agreement, Prodnostic may:
9.1.1 request the Publisher either to remedy the breach or other default within such time scale as Prodnostic may reasonably require; or
9.1.2 if Prodnostic in its discretion considers that the breach or other default is sufficiently serious, or if the Publisher has failed to respond to Prodnostic request under clause 9.1.1 to Prodnostic’s reasonable satisfaction, suspend the Publisher’s access to the Service, in whole or in part, with immediate effect and without any obligation to provide prior notice (a “Service Suspension”).
9.2 As soon as reasonably practicable following a Service Suspension, Prodnostic will notify the Publisher of the reason(s) for the Service Suspension and, where applicable, confirm the steps that the Publisher is required to take in order for Prodnostic to reinstate the Publisher’s access to the Service.
9.3 Prodnostic will reinstate the Publisher’s access to the Service as soon as reasonably practicable after it has:
9.3.1 received written confirmation from the Publisher that the breach or other default giving rise to the Service Suspension has been remedied or rectified; and
9.3.2 where applicable, Prodnostic has carried out tests or otherwise satisfied that such breach or other default has in fact been remedied or rectified.
10.1 “Confidential Information” means all confidential information and data of whatever nature, whether in tangible or intangible form such as trade secrets, financial, and technical information, technology, processes, customers, prices, discounts, and margins.
10.2 Obligations. A Party receiving Confidential Information (“Receiving Party”) from the other Party (“Disclosing Party”) agrees to agrees to (a) hold all Confidential Information in confidence and protect it with the same degree of care with which the party protects its own Confidential Information; (b) use such Confidential Information only for the purposes of this Agreement and as permitted by this Agreement; (c) not copy or otherwise duplicate such Confidential Information, except for the purpose of this Agreement; and (d) restrict disclosure of such Confidential Information solely to those employees and agents with a need to know such Confidential Information for the purposes of this Agreement, who are told of its confidentiality and who are bound in writing to protect the same. Receiving Party shall be obligated to inform its employees and agents of the confidential nature of the Confidential Information.
10.3 If the Receiving Party receives a request pursuant to a court order, governmental body request or other legal process to disclose the Disclosing Party’s Confidential Information, the Receiving Party shall promptly notify the Disclosing Party and reasonably assist the Disclosing Party in obtaining a protective order requiring that any portion of the Confidential Information required to be disclosed be used only for the purpose for which a court issues an order or as otherwise required by law. Each Party shall bear its own legal expenses in connection therewith.
10.4 Exceptions. The obligations of Receiving Party with respect to Confidential Information shall not apply to any information designated as confidential if, prior to any release of such information, such Confidential Information: (a) was already known to it, free of any obligation to keep it confidential or proprietary; (b) is or becomes publicly known through no wrongful act of the Party; (c) was received from a third party without any restriction or confidentiality; (d) was disclosed to third parties by the Disclosing Party without any obligation of confidentiality; (e) is independently developed by the Receiving Party without use of the Confidential Information of the Disclosing Party or (f) is approved for release by prior written authorization of the Disclosing Party.
11. Intellectual Property
11.1 Intellectual Property Defined. “Intellectual Property” means trade marks (whether registered or unregistered together with all goodwill in connection thereto), unregistered and registered designs, copyright, database rights, rights in computer software, domain names, rights in “Confidential Information” (as defined below) and all other intellectual property rights (whether now subsisting or in the future created) both in the USA and all other countries of the world for the full period of those rights (including any extensions and renewals).
11.2 All right, title and ownership to all Intellectual Property in the Platform remains with Prodnostic (or its licensor(s)). Except as provided herein, nothing shall be construed to grant to Publisher any right, title or interest in or to the Platform. Further, Publisher shall not:
(a) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form any component of the Platform, except as may be allowed by applicable law;
(b) access all or any part of the Platform in order to build a product, service or customer list which competes with the Platform;
(c) write or develop any derivative software program based in whole or in part upon the Platform or any Confidential Information belonging to or licensed to Prodnostic.
Prodnostic collects and stores through the Platform tracking data, traffic data and data regarding Publisher’s relationships with Merchants and Monetization Partners. Prodnostic retains any and all rights in and to such data as Prodnostic’ “Confidential Information” (as defined in Section 10). Prodnostic does not collect personally identifiable information from End Users and Publisher warrants that Publisher shall not pass to Prodnostic personally identifiable information from End Users.
12.1 The Publisher shall be entitled to the following percentage of the Total Revenue (less any Chargebacks) as follows:
12.1.1 Total revenue derived from Tools, 70%;
12.2 The calculation of Total Revenue for Tools shall be performed by the relevant Merchant, Affiliate Network or Monetisation Partner, and communicated to Prodnostic. The Publisher acknowledges that:
12.2.1 different Merchants and Monetization Partners use different Total Revenue structures, which may include (without limitation) using fixed amounts per Sale or referral, percentage based methods, or “cost per click”;
12.2.2 Merchants and Monetization Partners may refuse to pay Total Revenue on a number of grounds (including, without limitation, as a result of fraud, search keyword bidding, and tracking errors), and that the Publisher has no right to appeal or otherwise challenge a Merchant’s or Monetization Partner’s decision to refuse to pay Total Revenue;
12.2.3 a sale of goods and/or services by a Merchant and Monetization Partner may follow two or more referrals from a End User across different marketing channels and the Merchant or Monetization Partner may not pay a Total Revenue to Prodnostic if a referral using a different marketing channel was made more recently than the Publisher’s referral; and
12.3.1 Total Revenue shall be calculated based on payments collected from Merchants and Monetization Partners, less deductions for fees and charges levied by third parties (including but not limited to data management platforms and audience syndication platforms); and
12.4 Prodnostic shall collect, calculate, and aggregate the Publisher Revenue for all Tools, and display in reports accessible via the Platform.
13. Payment Terms
13.1 Prodnostic will pay the Publisher the Publisher Revenue for a given month, minus any Chargebacks made in accordance with clause 12 and any pending payments from Merchants, Affiliate Networks and/or Monetisation Partners:
13.1.1 in the case of all Tools within 30 days of receiving payment from the Merchants, Affiliate Networks and/or Monetisation Partners.
13.2 If the amount of the Publisher Revenue is less than $100 in any month (the “Minimum Threshold”), any such amount will be carried over and paid when the cumulative amount due for payment to the Publisher exceeds the Minimum Threshold.
13.3 Payments will be made in accordance with the payment method selected by the Publisher in the Platform. While Publisher is responsible for the cost of making payments, the Publisher is solely responsible for any fees charged by the Publisher’s bank or other provider for receiving funds.
13.4. Payouts and additional service charges. All payments processed via the Platform shall be in US ($) Dollars. Prodnostic makes payment to Publisher after receipt of payment for Payouts from Merchants and Monetization Partners. Payouts are aggregated from all Merchants and Monetization Partners that Publisher has earned Payouts from. Prodnostic may, if Publisher elects optional Prodnostic services for which there are charges, deduct from Publisher’s Payouts the costs of the optional services.
13.5 Reactivation: If Publisher’s Account has been suspended, Prodnostic may, in Prodnostic’s sole discretion, require prior to reactivation that Publisher provide proof of Publisher’s compliance, or ability to comply, with this Agreement and any other reasonable requirement of Prodnostic.
13.6 Taxes: Publisher is responsible for the taxes, if any, on Payouts.
13.7 Dormant Account Fee: Publisher is obligated to maintain accurate contact information on its Publisher Account, including providing Prodnostic with the relevant tax identification information. In the event that Publisher does not comply with the foregoing and Prodnostic is unable to make payment to Publisher after six (6) months from when Publisher was eligible to be paid, Prodnostic will deduct a fee of Ten US Dollars ($10) per month unless and until Publisher comes into compliance, or until the Account balance is zero.
14.1 A Merchant or Monetization Partner may require Prodnostic (either directly or via an Affiliate Network) to reverse the Total Revenue paid in respect of a Sale (a “Chargeback”) in certain circumstances, including (but not limited) to the following:
- the Sale was not a bona fide transaction
- the relevant goods sold are returned by the End User
- it is discovered that the transaction was fraudulent.
14.2 In the event of a Chargeback, the Publisher’s sales figure available on the Platform will be reduced accordingly. The Publisher acknowledges and accepts that information regarding individual Chargebacks is not available, whether on the Platform or otherwise, and that a Publisher has no right to appeal or otherwise challenge a Chargeback.
14.3 The Publisher acknowledges and agrees that Total Revenue remains subject to Chargebacks, and is therefore conditional, even after it has been paid to Prodnostic or the Publisher.
15. Term and Termination of the Agreement
15.1 Pursuant to Sec 5.1, the Agreement will commence when Prodnostic notifies the Publisher that the Publisher’s application has been accepted (the “Effective Date”).
15.2 This agreement may be terminated:
(a) by either Party upon 30 (thirty) days’ prior written notice to the other Party or pursuant to Section 20.1
(b) by Prodnostic with immediate effect if Publisher infringes the Intellectual Property of Prodnostic or a third party, or Publisher breaches Section 4, or, if in Prodnostic’s sole discretion Publisher’s actions may cause it financial loss or liability to any third party; or
(c) immediately by either Party in the event that a party is prohibited from performing all or a material part of their obligations under this Agreement; or it is cost-prohibitive for the Party seeking to terminate this Agreement to perform its obligations hereunder.
Notices to Prodnostic should be sent to firstname.lastname@example.org. Notices to the Publisher will be sent to the email address provided by the Publisher in the Platform.
15.3 Either party may terminate the Agreement with immediate effect if:
15.3.1 the other party becomes bankrupt, insolvent or unable to pay its debts in accordance with Section 123 of the Insolvency Act 1986; or
15.3.2 the other party is in breach of any material term of the Agreement and, in the case of a breach capable of remedy, has failed to remedy such breach within three (3) days of having been notified in writing of such breach.
15.4 On termination of the Agreement:
15.4.1 the Publisher will immediately cease use of the Service and promptly return to Prodnostic, or at Prodnostic’s written request, destroy, any and all of its intellectual property rights, information and/or materials in the Publisher’s possession; and
15.4.2 except where (i) the Agreement is terminated by Prodnostic under clause 15.3 (in which case the Publisher forfeits all rights to receive any further payments) or (ii) the Publisher Revenue accrued (less any Chargebacks) is less than the Minimum Threshold, Prodnostic shall pay the Publisher the Publisher Revenue accrued prior to the date of termination (less any Chargebacks and pending payments from Merchants, Affiliate Networks and/or Monetization Partners) not later than the date falling three (3) months after the date of termination. For clarification purposes, Publisher shall not accrue Publisher Revenue after the date of termination.
15.5 Any termination of this Agreement shall be without prejudice to any other rights or remedies a Party may be entitled to under this Agreement or at law and shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision of this Agreement which is expressly or by implication intended to come into or continue in force on or after such termination.
15.6 On termination of this Agreement all licenses granted hereunder shall terminate, and, subject to compliance with any applicable law, each Party shall return Confidential Information of the other Party in their possession or under their control.
16.1 All intellectual property rights subsisting in, relating to or arising out of the Service (or any part thereof) shall at all times be owned by and vest in Prodnostic, including all developments or enhancements to the Service (or any part thereof). Subject to clause 16.2, the Publisher agrees that the Agreement does not transfer or grant any right, title or interest in Prodnostic’s intellectual property rights in the Service (or any part thereof) to the Publisher.
16.2 Prodnostic grants to the Publisher a non-exclusive, non-transferable, non-sublicensable, revocable, worldwide, licence to use the Service during the term of the Agreement.
16.3 The Publisher shall not be entitled to use the Service in any other way other than as set out in the Agreement. Any attempt to interfere with the operation of the Service (or any part thereof) will constitute a breach of the Agreement.
17. Representations, Warranties & Disclaimers
17.1 Prodnostic Warranties: Prodnostic represents and warrants to Publisher that Prodnostic:
(a) has the full power and authority to carry out the actions contemplated under this Agreement; and
(b) shall perform its obligations under this Agreement with reasonable skill and care.
17.2 Publisher Warranties: Publisher represents and warrants to Prodnostic that Publisher:
(a) has the full power and authority to carry out the actions contemplated under this Agreement and thru each Publisher Channel;
(b) if an individual, Publisher is over the age of 18;
(c) will not infringe the rights of any third party or cause it to be in breach of any obligations to a third party (including Merchants and Monetization Partners) by and through Publisher’s entry into and performance of Publisher’s obligations hereunder;
(d) shall at all times in using the Platform and accessing Prodnostic’s website(s) comply fully with any and all applicable laws, rules and regulations; and
(e) shall comply with the terms and conditions of this Agreement.
17.3 PRODNOSTIC DISCLAIMERS: PUBLISHER EXPRESSLY AGREES THAT PUBLISHER’S USE OF THE SERVICE, PLATFORM, TOOLS AND ANY PRODNOSTIC WEBSITE IS AT PUBLISHER’S OWN RISK, AND THAT THE SERVICE, PLATFORM, TOOLS AND WEBSITE(S) ARE AVAILABLE “AS IS”. EXCEPT AS PROVIDED FOR IN SECTION 17.1, THE SERVICE, PLATFORM, TOOLS AND WEBSITE(S) ARE PROVIDED WITHOUT WARRANTY OR REPRESENTATION OF ANY KIND, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, BY PRODNOSTIC (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS, MERCHANTABILITY, NON-INFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF A COURSE OF PERFORMANCE, DEALING, ACCURACY OR TRADE USAGE), REGARDING THE SERVICE, PLATFORM, TOOLS, THIRD PARTY PRODUCTS OR INFORMATION, OR PRODNOSTIC WEBSITES. PRODNOSTIC SHALL IN NO EVENT BE LIABLE FOR ANY ACTS OR OMISSIONS OF MERCHANTS, AFFILIATE NETWORKS AND MONETIZATION PARTNERS. PRODNOSTIC DOES NOT GIVE ANY GUARANTEE OR OTHER LEGALLY BINDING COMMITMENT THAT PUBLISHER’S USE OF THE PLATFORM OR ANY PRODNOSTIC SERVICES OR TOOLS WILL RESULT IN REVENUE FOR PUBLISHER.
17.4 LIMITATIONS OF LIABILITY: PRODNOSTIC WILL NOT BE LIABLE TO PUBLISHER FOR INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (OR ANY LOSS OF REVENUE, PROFITS OR DATA) ARISING IN CONNECTION WITH THIS AGREEMENT OR PLATFORM OR TOOL USE, EVEN IF PRODNOSTIV HAS BEEN ADVISED BY PUBLISHER OF THE POSSIBILITY OF SUCH DAMAGES. PRODNOSTIC’S AGGREGATE LIABILITY TO PUBLISHER ARISING WITH RESPECT TO THIS AGREEMENT SHALL NOT EXCEED, IN ANY EVENT, THE TOTAL AMOUNT OF PAYOUTS EARNED BY PUBLISHER FROM MERCHANTS AND MONETIZATION PARTNERS (EXCLUDING AMOUNTS CHARGEDBACK) DURING THE 3 MONTHS PRIOR TO THE DATE UPON WHICH THE EVENT GIVING RISE TO THE LIABILITY FIRST OCCURRED. PRODNOSTIC DISCLAIMS LIABILITY FOR PUBLISHER’S SELECTION OR RETENTION OF MERCHANTS AND MONETIZATION PARTNERS, OR ANY ACTS, ERRORS, OR OMISSIONS BY ANY THIRD PARTY, INCLUDING THIRD PARTY SERVICE PROVIDERS OF PRODNOSTIC.
Subject to Section 17.3 and 17.4, each Party (each, an “Indemnifying Party”) agrees to indemnify, protect and hold harmless the other Party and the Indemnified Party’s respective officers, directors, employees, representatives, associates, agents, successors, and assigns (each an “Indemnified Party”) against all “Claims” (as defined below), to the extent such Claims are based upon or arise out of any breach of a Party’s Section 17 warranties provided that (a) the Indemnified Party provides the Indemnifying Party with timely written notice of the Claim, (b) the Indemnifying Party has the sole right to defend, compromise and settle any such Claim (except that the Indemnifying Party shall not settle any Claim in any manner which would impose any cost or limitation on the Indemnified Party, or would admit fault by the Indemnified Party without Indemnified Party’s consent), and (c) the Indemnified Party provides reasonable cooperation and assistance to the Indemnifying Party, at the Indemnified Party’s sole expense. A “Claim” means any and all third party alleged or actual actions, causes of action (of any type or nature), bodily harm or personal injury, damages, demands, disbursements, judgments, legal proceedings, liability, losses, property damage, settlements, costs or expenses, including attorneys’ fees and costs. Notwithstanding any other provision herein, an Indemnified Party may participate in its own defense at Indemnified Party’s own expense, subject to the Indemnifying Party’s continuing indemnification obligations. A Party’s indemnity obligations shall be limited to the extent that: (i) the Indemnified Party is obligated to indemnify Indemnifying Party for a particular Claim; or (ii) in the event that a Claim is due to the Indemnified Party’s breach of this Agreement. This Section 18 shall survive the termination of this Agreement.
19.1 Except as expressly and specifically provided in the Agreement, all warranties, conditions, representations and other terms of any kind, whether express or implied, are, to the fullest extent permitted by law, excluded from the Agreement. In particular (but without prejudice to the generality of the foregoing), Prodnostic makes no express or implied warranties or representations with respect to the operation or availability of the Service, or to the optimization of Total Revenue from its routing strategy. Prodnostic will not be liable for the consequences of any interruptions to or errors in the Service.
20.1 Force Majeure. "Force Majeure" means circumstances beyond the reasonable control of a Party, including but not limited to acts of God, war, terrorist action, fire, flood, governmental act, Internet or other telecommunications failure. Neither Party shall be liable to the other Party for any failure or delay in performing any of its obligations hereunder if such failure or delay is caused by the occurrence of an event of Force Majeure. If a Party becomes aware of a Force Majeure event, such Party shall immediately notify the other Party in writing. If the event of Force Majeure continues for a period in excess of three (3) weeks, then either Party may terminate this Agreement by written notice to the other Party with immediate effect.
20.2 Waiver of Remedies: No forbearance or delay by either Party in exercising or enforcing the provisions of this Agreement shall prejudice or restrict the rights (whether provided by the Agreement or by law) of that Party nor shall any waiver of its rights operate as a waiver of any subsequent breach. No right, power or remedy herein conferred upon or reserved for either Party or available by law is exclusive of any other right, power or remedy available to that Party (whether under this Agreement or at law) and each such right, power or remedy shall be cumulative.
20.3 Assignment: Prodnostic may assign this Agreement upon written notice to Publisher. Notwithstanding the foregoing, Publisher may terminate this Agreement upon receipt of assignment notice from Prodnostic. Publisher must obtain Prodnostic’s written consent to assign or transfer this Agreement. For transfers by Publisher to any successor in interest (such as merger, consolidation or sale of all or substantially all of Publisher’s stock or assets), such transfer requires notice to Prodnostic, and acceptance by the transferee of all pre-existing obligations of Publisher (including those that accrued prior to the date of transfer) and of the terms and conditions of this Agreement. However, Prodnostic may terminate this Agreement after such notice by notifying the transferee and Publisher. This Agreement shall be binding upon, and shall insure to the benefit of, the Parties and their respective successors and permitted assigns.
20.4 Entire Agreement: This Agreement represents the entire understanding and constitutes the entire agreement between the Parties in relation to its subject matter and supersedes any previous agreement between the Parties as to such subject matter. Each of the Parties acknowledges and agrees that in entering into this Agreement it has not relied on any representation or warranty other than those expressly set out in the Agreement.
20.5 Electronic Signatures: Publisher acknowledges and agrees that by clicking-through acceptance of this Agreement, and other click-through offers on the Platform, Publisher is submitting a legally binding electronic signature and is entering into a legally binding contract. PUBLISHER HEREBY AGREES TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE PRODUCTS AND/OR SERVICES OFFERED BY PRODNOSTIC. Further, Publisher hereby waives any rights or requirements under any applicable statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means. Notwithstanding the foregoing, the Parties may agree to mutually execute a printed version of this Agreement. If the Parties do so, such document shall supersede the click-through version of this Agreement.
20.6 Modifications: Prodnostic may amend this Agreement with thirty (30) days’ notice (“Notice Period”). If Publisher does not agree to such amendments, Publisher may terminate this Agreement prior to the end of the Notice Period. If Publisher does not terminate this Agreement, the amendments shall become effective on the date notified by Prodnostic to Publisher. Otherwise, this Agreement may not be altered, amended or modified except in writing signed by duly authorized representatives of each of the Parties hereto.
20.7 Notices: All notices required hereunder must be in writing and given to the following addresses: (i) Prodnostic – as listed at the bottom of this Agreement; and (ii) Publisher – as listed in Publisher’s Account; or as may be updated by notice pursuant to this Section 20.7. Except as explicitly provided otherwise herein, all notices must be delivered: (i) by hand; (ii) by receipted overnight delivery; (iii) by prepaid, receipted certified or registered mail (with effect on the 3rd business day after mailing); or (iv) by electronic mail with read-receipt requested (if to Prodnostic: email@example.com; and if to Publisher: as listed in Publisher’s Account).
20.8 Severability: If any provision in this Agreement is, in whole or in part, held by a court or administrative body of competent jurisdiction to be illegal, invalid or unenforceable under any enactment or rule of law then that provision or part shall be deemed not to form part of this Agreement and the enforceability and validity of the remainder of this Agreement shall not be affected. The Parties shall in good faith attempt to modify any invalidated provision or part to carry out the Parties' stated intentions.
20.9 Survival: All provisions that by their sense and context are intended to survive the termination or expiration of this Agreement, including any rights or obligations arising out of a Party’s breach of this Agreement, shall survive the termination or expiration of this Agreement.
20.10 Relationship of the Parties: The relationship of the Parties is that of independent contractors and this Agreement does not constitute either Party the agent of the other, or create a partnership, joint venture or similar relationship between the Parties, and neither Party shall have the power to bind the other or to create a liability against the other in any way.
20.11 Dispute Resolution. The Parties will attempt in good faith to resolve through negotiation any dispute, claim, or controversy arising out of or relating to this Agreement or interpretation or validity thereof, including this section (“Dispute”). If the Dispute is not resolved through verbal and written communications, the matter will be submitted to JAMS for arbitration in Los Angeles, California, USA before a sole arbitrator, in English, in accordance with the laws of the State of California for agreements made in and to be performed therein. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. The arbitrator will have no authority to award punitive damages or any other damages not measured by the prevailing party’s actual damages, and may not, in any event, make any ruling, finding or award that does not conform to the terms and conditions of this Agreement. Judgment on the arbitration award may be entered in any court having jurisdiction. The arbitrator may, but shall not be obligated, to allocate all of the costs of the arbitration, including the fees of the arbitrator and the reasonable attorneys’ fees of the party that primarily prevails, against the party that did not primarily prevail. Otherwise, each Party is responsible for half of the costs of the arbitration, including the fees of the arbitrator, excluding each Party’s own costs (such as attorneys’ fees), which they are solely responsible for.
20.12 Governing Law and Venue: This Agreement is governed by the laws of the State of California (USA), except for its conflict of law provisions. Notwithstanding Section 9.11, either Party may apply to the state courts (or federal courts, as applicable) in Los Angeles, California, USA for injunctive relief until such time as an award is rendered or the dispute is otherwise resolved pursuant to Section 9.11. The Parties agree that those courts specified in the previous sentence and JAMS arbitration (in accordance with Section 9.11 above) shall be the exclusive fora for any such actions related to this Agreement. Both Parties consent to such venue and jurisdiction. A Party that primarily prevails in an action brought for injunctive relief is entitled to recover from the other Party its reasonable attorneys' fees and costs.
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THE PERSON CLICKING-THROUGH THIS AGREEMENT REPRESENTS AND WARRANTS THAT SUCH INDIVIDUAL IS AUTHORIZED TO ACCEPT THIS AGREEMENT ON BEHALF OF PUBLISHER. SUCH INDIVIDUAL MUST INDEMNIFY, DEFEND AND HOLD PRODNOSTIC HARMLESS IN THE EVENT THAT PUBLISHER DID NOT SO AUTHORIZE.