The following standard partner distribution terms (“Terms”) govern the implementation and use of the products, services, and technology made available by Topple to the Partner identified in a Partner Enrollment Form. To the extent that Partner has not yet signed a Partner Enrollment form (1) references to “the Agreement” shall be to the Terms and (2) these Terms permit the use of the Technology, but no payment shall accrue or be made to Partner until such Partner Enrollment Form is signed by both Topple and Partner.
- CERTAIN DEFINITIONS
1.1 “Advertiser Recs” means Recommendations (that are not Recirculation Recommendations) in the Topple network submitted by Topple’s advertisers.
1.2 “Content” means graphical, textual, and/or auditory content (which may include text, data, information, photos, images, graphics, audio, video or other content).
1.3 “Data” means all data collected or generated by Topple through the Technology, including any reports or other data made available to Partner in connection with the Agreement.
1.4 “Destination Page” means any webpage or other online location that may be accessed by clicking on Recommendations.
1.5 “End User” means individual human end users of the Partner Site(s).
1.6 “Partner Sites” means the web properties, applications or platforms identified in the Partner Enrollment Form, together with any additional properties on which Partner elects to implement the Technology upon prior written approval from Topple (e-mail will suffice).
1.7 “Recirculation Recs” means Recommendations (that are not Advertiser Recs) which link to Content on Partner Sites.
1.8 “Recommendations” means the display of Content that Topple delivers to the viewer of a web page, application or platform on which the Technology is implemented. For clarity, Recommendations may include Advertiser Recs and/or Recirculation Recs.
1.9 “Revenue” means net revenue generated from Advertiser Recs and charged by Topple for the display of such Advertiser Recs in the Topple network.
1.11“Updates” means updates, modifications or improvements to the Technology from time to time in Topple’s sole discretion, including, but not limited to, adding Ads.txt lines and any other similar industry standards.
- TECHNOLOGY; PLACEMENT AND APPEARANCE
2.1 Partner shall implement the Technology pursuant to Topple’s technical instructions, including any implementation guides made available by Topple, as revised from time to time. Topple, in its sole discretion, may determine which of Topple’s available Technology (e.g., JS, API, SDK) shall be used in each Partner implementation. Implementations of the Technology must appear directly below the main Content on each page of the Partner Sites on which the Technology is installed or as otherwise mutually agreed in writing (e-mail shall suffice).
2.2 Partner shall display the Technology in accordance with all self-regulatory codes and applicable laws and regulations, including with respect to disclosing the source or nature of the Recommendations. Without limiting the foregoing obligation, Partner agrees to comply with Topple’s instructions regarding how the Technology is to be displayed, labelled or identified.
2.3 Topple may make Updates from time to time. If Topple requests Partner to implement any such Updates, Partner shall make such Updates within thirty (30) days of receipt of same from Topple; provided, that if Topple requests Partner to implement any Updates that Partner reasonably determines would materially and adversely affect the performance of the Partner Site(s), Partner may elect to cease displaying the Technology on such page(s) unless Topple either addresses Partner’s concerns to its reasonable satisfaction or agrees not to require Partner to implement such Updates.
2.4 During the Term, Topple shall be Partner’s sole and exclusive provider of content recommendations, where “content recommendations” are one or more links comprised of a headline or phrase indicating that an End User will be driven to Content (regardless of whether the Destination Page displays content, advertorials or advertisements).
2.5 Notwithstanding any other provision of the Agreement and unless Topple provides prior written consent, any implementation of the Technology shall include at least one (1) link to Advertiser Recs per page (i.e., Partner may not use the Technology solely to provide Recirculation Recs).
2.6 Topple may test changes to the Technology and, based on the results of such testing, Topple may make optimisations to the Technology if such optimisations may result in increased click through rates on Advertiser Recs (as calculated by Topple in its sole discretion). To the extent that Partner uses the API and thus controls any testing, Partner shall comply with such testing requests on at least a quarterly basis.
- REVENUE & PAYMENT
3.1 During the Term, Partner will be paid the percentage of Adjusted Gross Revenue indicated on the Partner Enrollment Form. Topple shall make such payments within a certain number of days (as indicated on the Partner Enrollment Form) after the end of any calendar month during which Topple collects Revenue. For the avoidance of doubt, Revenue is net of, inter alia, fees for third-party data services integrated into Topple’s platform, invalid clicks/impressions, and advertiser and agency discounts/rebates.
3.2 Partner must promptly provide Topple completed and accurate tax forms and all other similar materials Topple requires, which may include tax form W-8BEN, W-8BEN-E or W-9 if applicable (collectively all such forms and materials, “Tax Materials”). Notwithstanding anything set forth to the contrary in this Agreement, Topple may (a) withhold payments owed to Partner hereunder without penalty or late fee until Topple has received Partner’s Tax Materials, and (b) deduct any applicable withholding taxes payable by Topple from payments owed to Partner by Topple hereunder as required by law. Once Topple has received the Tax Materials, Topple will use commercially reasonable efforts to pay any amounts not paid to Partner pursuant to the foregoing subsection (a) as soon as reasonably practicable. All payments to Partner shall be subject to withholding for income taxes and similar deductions, as required by applicable law.
3.3 To ensure proper payment, Partner is responsible for notifying Topple of accurate contact and payment information. Partner is also responsible for any charges assessed by Partner’s bank or payment provider. If the amount owed to Partner is less than US$50, then the amount owed will be accrued if and until the calendar month in which the balance of the payments due to Partner exceeds US$50. Any dispute regarding a payment from Topple must be submitted to Topple in writing within thirty (30) days of postage or wire transfer date of such payment or it shall be deemed waived.
3.5 In addition to Topple’s other rights and remedies, Topple may (i) withhold and offset any payments owed to Partner under the Agreement against any fees Partner owes Topple under the Agreement or any other agreement, and/or (ii) require Partner to refund Topple within thirty (30) days of any invoice, any amounts Topple may have overpaid to Partner in prior periods. If an Topple advertiser or client whose Advertiser Recs were displayed on any Partner Site defaults on payment to Topple, for any reason, Topple may withhold payment or charge back Partner’s account.
- LICENSE TERMS
5.1 During the Term and subject to Partner’s full compliance with all of the terms of the Agreement, Topple grants Partner a limited, non-exclusive, revocable, non-sublicensable, non- transferable license to use the Technology to display the Recommendations on Partner Sites in the form and format provided. Topple grants Partner, during the Term, a limited, worldwide, non-exclusive, royalty-free license to use and display Topple’s trademarks, service marks and logos (collectively, “Topple Marks”), as incorporated into the Technology, strictly in accordance with Partner’s obligations and rights in the Agreement. All goodwill arising out of Partner’s use of any of the Topple Marks shall inure solely to the benefit of Topple. Topple shall have the right to refer to Partner and the Partner Sites in any general listing of advertisers or partners (including in marketing and sales materials) who have implemented the Technology. Notwithstanding the foregoing, each party will request prior written consent before issuing a press release regarding the Agreement or using the other party’s name on its website other than in accordance with the Agreement.
5.2 As between the parties: (a) Topple retains all right, title and interest in and to the Topple Marks, Technology, Data, and Content displayed on or made available by the Technology (excluding any Content from the Partner Sites which shall be owned by Partner); and (b) Partner retains all right, title and interest in and to the Partner Site(s) including the look and feel, excluding the items described in subparagraph (a) above, (including without limitation all intellectual property rights in them).
5.3 The licenses granted under the Agreement are specifically set forth in the Agreement; there are no implied rights. All rights not expressly granted to Partner in the Agreement are reserved by Topple.
- PROHIBITED ACTIVITY
6.1 Partner will not: (i) edit, modify, truncate, filter, or change the order of Recommendations; (ii) obscure, modify or redirect Partner Site users away from a Destination Page, or intersperse any Content between the Recommendations and any Destination Page; (iii) minimize, remove or otherwise inhibit the full and complete display of the Technology; (iv) artificially inflate clicks or impressions on Recommendations, or encourage or require any person to click on Recommendations using incentives or other methods; (v) remove, deface, obscure, or alter any notices of intellectual property rights included in the Technology; (vi) access, reproduce or use the Technology in any manner or for any purpose other than as expressly permitted under the Agreement; (vii) modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Technology, or attempt to create a substitute or similar service or product through use of or access to Technology or related proprietary information; (viii) attempt to interfere with or disrupt the Technology or attempt to gain access to any systems or networks that connect to it other than through the Technology as implemented pursuant to the Agreement; (ix) copy, cache, distribute, display, alter, or otherwise use any Recommendations (or authorize or assist any third party to do so) except as such Recommendations are provided through the Technology; or (x) use the Technology for any purpose not authorized by Topple, including for any purpose that is inconsistent with the Implementation Guides as provided to Partner.
6.2 Partner will not deploy the Technology on any properties that display adult, obscene, pornographic, defamatory, libelous, infringing, abusive, or illegal Content, that promotes hate or discrimination, facilitates the sale of firearms or illegal drugs, or that participates or encourages participation in, illegal activities or is directed at children under of the age of 16. Topple reserves the right in its sole discretion to disable the Technology on any property at any time.
6.3 Except as expressly and unambiguously authorized under the Agreement, Partner will not copy, rent, lease, sell, transfer, assign, sublicense, disassemble, reverse engineer or decompile (except to the limited extent expressly authorized by applicable statutory law), modify or alter any part of the Technology or otherwise use the Technology on behalf of or for the benefit of any third party.
Partner is not required to register on the Topple website to use the Technology. If Partner registers, it will have access to online reports and the Topple dashboard, which allows Partner to control certain settings for the Technology, including certain Recommendation functionality. To the extent that Partner registers and has access to the Topple dashboard, Topple may collect Partner’s (or individuals who act on behalf of Partner) personally identifiable information. Partner will be solely responsible for all changes to data made by it, or individuals acting on Partner’s behalf, through the Topple dashboard. Estimates of revenue displayed in the Topple dashboard are provided solely for the Partner’s convenience. Topple does not guarantee that these estimated amounts displayed during a calendar month, if any, shall be precise or definitively due to be paid to Partner as a result of the Agreement. Access to Topple dashboard shall be solely at the discretion of Topple and may be discontinued by Topple at any time.
- SUSPENSION OF TECHNOLOGY; TERMINATION
8.1 Topple may suspend or discontinue all or any aspect of the Technology, including its availability, at any time if required by exigent circumstances (such as a significant security breach, propagation of malware, other viruses to users, etc.) or other improper, unlawful, fraudulent or misleading circumstances.
8.2 Either party may terminate the Agreement at any time in the event of a material breach by the other party of any provision of the Agreement that remains uncured for seven (7) days after the breaching party’s receipt of written notice of the breach.
8.3 The Agreement is terminable on fourteen (14) days prior written notice unless otherwise stated on the Partner Enrollment Form. Upon expiration or termination of the Agreement, all rights and obligations of the parties under the Agreement will be extinguished, except that Sections 9.6., 9.7., 10, 11 and 13 of the Terms will survive termination, as well as any other terms of this Agreement which, by their nature should survive termination, and continue to bind the parties.
- LIMITED WARRANTIES; INDEMNITY
9.1 Each party represents and warrants to the other that: (i) it has all right, power, and authority necessary to enter into the Agreement and perform its obligations under it; and (ii) it will comply with all applicable laws, regulations and orders in its performance of the Agreement.
9.2 Topple warrants that the Technology (as provided and made available by Topple and implemented by Partner in accordance with the Agreement does not and will not, to the best of Topple’s knowledge, infringe any Intellectual Property Right of any third party.
9.3 Partner represents and warrants that the Partner Site(s) do not and will not contain any Content that is: (i) illegal; (ii) infringes any Intellectual Property Right of any third party; (iii) is obscene, defamatory, libelous, slanderous material or material that violates any person’s right of publicity, privacy or personality; or (iv) knowingly contains a misrepresentation of fact or factual inaccuracy.
9.4 Nothing in the Agreement shall be construed as a promise of any sort of minimum traffic volumes, clicks, impressions or usage or any other such commitments by Topple to Partner.
9.5 Except as expressly provided in the Agreement, neither party makes any representations or warranties, express or implied in relation to the Agreement, the Partner Sites, the Technology, any Content made available by Topple through the Technology or any other matters (including any implied terms relating to satisfactory quality or fitness for any purpose, any warranties of availability or uninterrupted or error free performance, any warranties arising out of any course of performance or dealing).
9.6 Topple makes no representations or warranties concerning any Content contained in or accessed via the Technology, including without limitation Advertiser Recs, and Topple will not be responsible or liable for the contents, accuracy, intellectual property infringement, legality or decency of Content provided through the Technology or for Partner’s reliance on any of the foregoing.
9.7 Each party (the “Indemnifying Party”) shall indemnify, defend and hold harmless the other party and its parent and affiliates, and each of its and their respective affiliates, directors, officers, shareholders, members, authorized representatives, employees and agents (collectively, the “Indemnified Party”) from and against any and all claims, losses, liabilities, damages, costs, settlements, regulatory findings and/or fines and other expenses (including reasonable legal fees) (collectively, “Claims”) that arise out of any third party claim occasioned by any breach or alleged breach of any of the Indemnifying Party’s representations, warranties and obligations of the Agreement. The Indemnified Party shall promptly notify the Indemnifying Party of any Claim in writing, provided, however, that any delay in providing such notice shall not relieve the Indemnifying Party of any of its obligations except to the extent that the Indemnifying Party is actually prejudiced by such delay. The Indemnified Party shall have the right to participate in the defense and settlement of the Claim with counsel of its own choosing and its own expense, subject to the Indemnifying Party’s control thereof.
Each party (the “Receiving Party”) acknowledges that it will have access to certain information and materials, including the terms of the Agreement, concerning the business, technology, products and services of the other party (the “Disclosing Party”) that are, or reasonably should be considered given the circumstances of disclosure to be, confidential (“Confidential Information”). Confidential Information will not include: (a) information known to the Receiving Party prior to disclosure by the Disclosing Party; (b) information independently developed by the Receiving Party without reference to Confidential Information of the Disclosing Party; (c) information that is or becomes publicly known through no fault of the Receiving Party; or (d) information disclosed to the Receiving Party by a third party without breach of any obligation of confidence. Except as permitted hereunder, the Receiving Party (aa) will not use any Confidential Information for its own account or the account of any third party, and (bb) will not disclose any Confidential Information to any third party other than its directors, employees, contractors, advisors, investors or potential investors who have a need to know and who have agreed not to use, and to maintain the confidentiality of, the Confidential Information consistent with this Section 10. The Receiving Party will return or destroy the Confidential Information promptly upon the Disclosing Party’s written request. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information to the extent required by applicable law or legal process, provided that the Receiving Party provides prompt written notice of any required disclosure to the Disclosing Party and provides reasonable cooperation (at the Disclosing Party’s expense) with any effort by the Disclosing Party to contest or limit the scope of such disclosure.
- LIMITATION OF LIABILITY
11.1 Neither Topple nor the Partner exclude or limit liability to the other for: (i) death or personal injury caused by its negligence or that of its employees or contractors; (ii) fraud or fraudulent misrepresentation; or (iii) any other liability which cannot lawfully be excluded or limited.
11.2 EXCEPT IN CONNECTION WITH A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, NEITHER PARTY WILL BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ANY BREACH HEREOF (INCLUDING FOR LOSS OF DATA OR COST OF COVER), WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER UNDER A THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE.
11.3 EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER OR LIABILITIES ARISING OUT OF A PARTY’S VIOLATION, MISAPPROPRIATION OR INFRINGEMENT OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ANY BREACH HEREOF (WHETHER UNDER A THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY OR OTHERWISE) EXCEED THE GREATER OF ONE HUNDRED THOUSAND DOLLARS ($100,000) OR THE AMOUNT OF ADJUSTED GROSS REVENUE PAID OR PAYABLE TO THE PARTNER IN THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO LIABILITY (OR, IN THE CASE OF A SERIES OF CONNECTED EVENTS, THE FIRST SUCH EVENT).
- EXPORT CONTROLS
Partner will comply with all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control (“OFAC”), or other United States or foreign agency or authority, and shall not export, or allow the export or re-export of the Technology in violation of any such restrictions, laws or regulations. By downloading or using the Technology, Partner agrees to the foregoing and represent and warrants that it is not located in, under the control of, or a national or resident of any restricted country. Partner represents and warrants that none of it, or any individual, entity, or organization holding any ownership interest or controlling interest in Partner, including any officer or director, is an individual, entity, organization with whom any United States law, regulation, or executive order prohibits U.S. companies and individuals from dealing, including, names appearing on the Specially Designated Nationals List.
The Agreement shall be interpreted and construed in accordance with and governed by the laws of the State of Colorado, without regard to its conflict of law provisions or the United Nations Conventions for the International Sale of Goods. Any action or proceeding arising from or relating to the Agreement must be brought in a federal court in the district representing Colorado or in state court in San Miguel County, Colorado, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding. The parties agree that irreparable damage would occur in the event that any of the provisions of the Agreement is not performed in accordance with these specific terms. Accordingly, the parties agree that each shall be entitled to injunctive relief to prevent breaches of the Agreement and to enforce specifically the terms and provisions of the Agreement, in addition to any other remedy to which they are entitled at law or in equity. The parties are independent contractors, and nothing in the Agreement will be construed to create a partnership, joint venture, agency or other relationship between the parties. No failure or forbearance by a party to enforce any of its rights under the Agreement or insist upon performance of the other party’s obligations under the Agreement will be deemed a waiver of such rights or obligations to any extent, and no waiver by either party of any default or breach of the Agreement will constitute a waiver of any other or subsequent default or breach. Neither party will be liable for any failure to perform due to causes beyond the party’s reasonable control. The Agreement constitutes the entire agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning such subject matter. The Partner Enrollment Form may be amended, modified or superseded, only by a written instrument signed by both parties. The headings in the Agreement are for the convenience of reference only and have no legal effect. The Agreement may be executed and delivered via electronic transmission or another means of complete and accurate reproduction, and copies of the Agreement delivered via such means will be deemed originals for all purposes. The Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. If any provision of the Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable, failing which, it shall be severed from the Agreement and the balance of the Agreement shall continue in full force and effect. Neither party may assign the Agreement or any of its rights or obligations hereunder without the other party’s prior written consent, except (i) due to operation of law, merger, reorganization, or as a result of an acquisition or change of control, and (ii) by Topple to its subsidiaries. Subject to the foregoing, the Agreement will be binding upon and inure to the benefit of the parties and their permitted successors and assigns.