Publisher Agreement

Publisher Agreement
March 2017
PLEASE READ THE FOLLOWING VERY CAREFULLY. BY ACCESSING AND USING AN ACCOUNT AND ELECTING TO PARTICIPATE IN THE MOONKEY PUBLISHER NETWORK (OR CONTINUING TO PARTICIPATE FOLLOWING ANY POSTED OR NOTIFIED REVISION OF ANY PART OF THE PUBLISHER AGREEMENT), YOU REPRESENT, WARRANT AND COVENANT THAT YOU ARE ABLE TO AGREE AND ENTER INTO AND PERFORM THE OBLIGATIONS SET FORTH IN THE PUBLISHER AGREEMENT AS AND PERTAINING TO “PUBLISHER” AND YOU ARE AND WILL BE BOUND BY THE PUBLISHER AGREEMENT. IF YOU WORK FOR OR REPRESENT A COMPANY OR OTHER ENTITY THAT IS THE “PUBLISHER” FOR THE PURPOSES OF THE PUBLISHER AGREEMENT, YOU FURTHER REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO AGREE TO AND PERFORM THIS PUBLISHER AGREEMENT ON BEHALF OF SUCH COMPANY OR ENTITY.

The “Publisher Agreement” is between you, as an individual and, if applicable, the entity you represent (“Publisher”), on the one hand, and Moonkey SAS (“Moonkey”), on the other hand.

Publisher Agreement in English is the definitive legal version for all locales.

Joining our network
The Publisher Agreement governs Publisher’s participation in Moonkey’s network of website/application publishers and other parties that own, control or manage online advertising inventory (collectively, the “Moonkey Publisher Network”) and the potential opportunities for Publisher to earn fees for placements of video advertising (“Video Advertising Placements”) by Moonkey for its advertising clients.
We will monitor your social network, website, blog, mobile application, game or incentivized site to make sure you are following our guidelines. This can happen at any time and can happen randomly throughout your alliance with us. Please follow our guidelines to avoid delayed payment processing and to avoid getting your site or account suspended or terminated.
Joining our publishers network is fast and automated, and we always welcome new publishers to join our network. Please note that we work only with reputable publishers, and we have a team onsite to validate additions to our network. We reserve the right to check publisher websites at any time to make sure that our advertising placements are in good hands.
It's important for publishers to set accurate site settings (URL, categories, keywords) during the initial setup and to keep it up to date at all times. If you start using our technology on a new site, you will need to create a new site record on your publisher account for it. Please inform us of any change of ownership to your site(s) within 48 hours. 
We are constantly monitoring our publishers’ assets (both with automatic tools and manually) and reserve the right to suspend and ban publishers who (intentionally or not) mislead us regarding our advertising placements.
Publisher site(s)
By enrolling in the Programme, subject to approval of your Site(s) by Moonkey, Publisher agrees that Moonkey or its suppliers may serve third party-provided and/or Moonkey-provided Distributed Content on your Site(s). Moonkey hereby grants to you a non-exclusive, non-transferable, non-sublicensable limited licence to display each item of Distributed Content in accordance with the terms of the Publisher Agreement provided that (i) when called as a result of a user visiting a Publisher’s Site(s), such display occurs only once and only within the particular web page to which the Distributed Content is initially transmitted; and (ii) the relevant Distributed Content may not be retained or stored by Publisher after such single display (other than in the ordinary course of the operation and archiving of a Site consistent with general industry practices). Publisher may not use any Distributed Content except as expressly authorized in this Publisher Agreement or any relevant insertion order. All Distributed Content shall be served by Moonkey or its authorized third party suppliers.
We require you to follow our guidelines set below when adding your site(s) to our network.
Site Guidelines
  • Be content-rich with more than 25 words per page on a majority of the site
  • Contain original quality content, not repurposed content
  • Must contain natural, live, and continued traffic
  • Must not host or link to any copyrighted material unless they have the necessary legal rights to display that content
  • Be a live site with natural traffic and not “under construction” or used for domain parking
  • Must not over-use ads, popups, screen takeovers, or redirects
  • Must not be search pages, proxy sites, instant-messaging sites, chat rooms, or sites with nonsensical content
  • Must not use any mechanical, computerized, fraudulent, deceptive, or any other invalid or artificial means of increasing viewership, engagement, impressions, usage or any other measure of Internet traffic at your site(s).
  • Must not re-direct traffic from other sites, including other sites you own.
  • Must not contain content that is illegal, promotes illegal activity, or infringes on the legal rights of others
  • Must not contain material that violates intellectual property rights of third parties
  • Must not contain pornographic or indecent material
  • Must not contain excessive profanity or obscene language
  • Must not contain hate, violence, racial intolerance, or advocate against or defame any individual, group, or organization
  • Must not sell or distribute illegal drugs and drug paraphernalia, weapons, or ammunition
  • Must not attract significant (at Moonkey discretion) volume of automated, robot, non-human initiated traffic as well as hits from servers that don't appear to belong to internet users.
  • Must not attract significant (at Moonkey discretion) volume of traffic that is accessible on other publishers in Moonkey network.
  • Video Advertising Placements
  • Offering users any incentive (cash or virtual) for watching videos or any engagement with our videos player is strictly prohibited.
  • Must be in an area not within the normal (user-visible) navigation of your site(s)
  • Must not be in any pop-up, pop-under or similar (e.g. a web page that is not the main browser viewport for your site)
  • Must not be occluded (partially or fully) by other content or in such a manner that it is not displayed at its default size for the relevant screen resolution attempt to disassemble and/or reverse-engineer our video campaign player.
  • Should be identifiable i.e. on Moonkey's request.
  • Publisher should be able to present where our ad units are placed.
Account Area
Publisher will manage its participation in the Moonkey Publisher Network through an assigned account area hosted on the Moonkey platform (the “Publisher’s Account Area”). The Moonkey platform is accessible via a website gateway located at www.moonkey.net (or successor URL). Use of any and all of Moonkey’s websites, including without limitation the Moonkey platform, are subject to the posted Terms of Service (located at http://www.moonkey.net/terms-of-service/).
  • All information provided by Publisher in Publisher’s Account Area, including without limitation email address(es) and other contact information, payee information, as well as listings and descriptions of all Publisher’s Site(s), must be complete, accurate, and maintained up-to-date at all times. Publisher grants Moonkey and its affiliates full permission to send emails to all listed contacts and email addresses from time to time. Notifications sent to any email address(es) listed in Publisher’s Account Area will be deemed to have been received, even if any email address fails or is no longer current.
  • A Publisher may only have one Publisher’s Account Area on the Moonkey platform, though such one account may cover more than one Publisher’s Site(s). Even if Publisher could only list one website at registration, Publisher may add new and/or additional sites or other online offerings, subject to Moonkey’s right to approve each such additional site or offering before Video Advertising Placements may be displayed.
  • Multiple accounts held by the same individual or entity are subject to immediate termination (unless expressly authorized in writing by Moonkey). If Moonkey discovers that Publisher has registered for multiple accounts, Moonkey may in its sole discretion decide which account to terminate, and without waiving any rights or remedies that may be available to Moonkey, Moonkey will have no obligation or liability in respect of any terminated account including without limitation any obligation to pay Publisher any monies being held or otherwise payable in relation to such terminated account.
Eligibility Requirements for Performance
  • To operate each of Publisher’s Site(s) in a manner that does not infringe, violate, or misappropriate any of Moonkey’s, advertising clients’ or any third party’s copyrights, trademarks, privacy, publicity or other intellectual property or proprietary rights and is at all times in compliance with the Moonkey Network Policies;
  • To disclose on each of Publisher’s Site(s) accurately and adequately, either through a privacy policy or otherwise, how data about end users is collected, used, stored, and shared, including, where applicable, what third parties (including Moonkey, its advertising clients and others) may be serving content and advertisements, collecting information directly from end users, and placing or recognizing cookies via end users’ browsers or devices;
  • To make all necessary or appropriate disclosures on each of Publisher’s Site(s) about being paid by sponsors, especially in relation to any uses of the Moonkey Player or display of any Video Advertising Placements or other paid content and including without limitation as required by applicable law, regulation or established industry practice (such as, for example, Google’s guidelines requiring the adding of ‘no follow’ attributes when featuring links to an advertising client’s site on Publisher’s Site(s));
  • To not use, nor permit use of, any mechanical, computerized, fraudulent, deceptive, or any other invalid or artificial means of increasing viewership, engagement, impressions, usage or any other measure of Internet traffic at any of Publisher’s Site(s) (including blocking advertising networks or commissioned affiliates directing traffic by such prohibited practices onto any Publisher’s Site(s) displaying Video Advertising Placements);
  • To abide by additional restrictions or rules prescribed by certain advertising clients, applicable law or the industry in relation to display of certain Video Advertising Placements but only to the extent Publisher displays such Video Advertising Placements. For example, and without limitation, if Publisher displays Video Advertising Placements promoting alcohol beverages or their branded producers, Publisher must insure that Publisher’s Site(s) displaying such Video Advertising Placements do not either (x) target or attract an audience of which more than 25% are under the applicable drinking age where such audiences reside (e.g., under 18 years of age in the United Kingdom and other European countries and under 21 years of age in the United States), unless the campaign is age gated or age targeted, or (y) encourage excessive alcohol consumption or driving or use of potentially dangerous machinery while consuming or under the influence of alcoholic beverages.
  • Video Advertising Placements and associated campaigns may be subject to frequency cap limits which may be set to Moonkey’s specifications in Moonkey’s sole discretion for each such campaign.
Measurement
Moonkey has absolute and sole discretion for measuring results including without limitation impressions, unique clicks, views, engagements and/or other activity in relation to any Video Advertising Placements displayed on Publisher’s Site(s), and calculating any payments, if any, owed or owing by any of Moonkey’s advertising clients for any performance on Publisher’s Site(s) and generally across the Moonkey Publisher Network. Publisher acknowledges that measurement may be affected by individual users’ browser configurations (such as by way of example and without limitation, if an end user’s browser has JavaScript disabled) and other factors outside of Moonkey’s, the advertising client’s, or Publisher’s reasonable control.
  • Moonkey reserves the right to adjust or disqualify Publisher’s or other participants’ measurements or statistics to account for, among other things, invalid activity (including violations of the Moonkey Network Policies), enforcement of contractual terms, and/or statistical errors.
  • Unless separately agreed with Moonkey and, as applicable, the applicable advertising client, no other measurements or statistics of any kind will be accepted by Moonkey or have any effect on the amounts owing or paid to Publisher. In certain instances Moonkey may in its sole discretion use a third party ad tracking service (including without limitation if required to do so by agreement with an advertising client or its agency or affiliate).
  • Whether measured by Moonkey or a third party ad tracking service, a discrepancy of up to ten percent (10%) as compared with Publisher’s delivery of impression totals will be deemed acceptable. In the case of measurement discrepancies at higher than 10% during a relevant invoice period, the parties will use reasonable good faith efforts to reconcile and resolve the discrepancy, subject when appropriate to any resolution reached with any relevant advertising client, if any.
  • Moonkey may engage Publisher to reach a specified target audience (e.g., based on demographic, contextual, behavioral or other feature) for certain Video Advertising Placements, in which case Publisher agrees to deliver, and will be measured by Moonkey for, only for those results that actually meet such specified target with deviations of no more than ten percent (10%) (or such other amount as may be agreed in writing) of the total results measured as determined by Moonkey in its sole discretion.
Payment
In order to be paid any fees that may be owing, if any, Publisher is solely responsible for providing and maintaining accurate contact and payment information associated with Publisher’s account area within the Moonkey platform. Any bank fees incurred by Moonkey due to any error or omission of contact or payment information may be deducted by Moonkey from any payment that may be owing to Publisher. Payments will be made by one of the following methods:
(a) For Publisher paid via PayPal or other automated or direct deposit methods, Moonkey will pay Publisher from time to time on the same schedule as it may make payments to all other Publishers that are paid according to such methods, provided that no payments will be made until Publisher’s account has an earned balance of $100 or more; or
(b) For earned balances of $1,500 or more or as required according to an insertion order or other written agreement with Moonkey (including via electronic mail), Publisher will submit written invoices to “Moonkey SAS” (to the attention of the Accounting Department at 80 Boulevard de Reuilly 75012 Paris, or successor address) for the amount of “revenue” stated in Publisher account area within the Moonkey platform and/or such other amounts as Publisher and Moonkey may have agreed to be payable.
  • No invoice may be submitted for any Video Advertising Placements prior to when the relevant “revenue” amount is posted and in any event no sooner than the end of the calendar month in which such Video Advertising Placements occurred.
  • Publisher will be paid within thirty (30) days following the end of the month in which such invoice is received by Moonkey, provided that payments to Publisher may be withhold by Moonkey pending receipt of payment from, and subject to Moonkey being actually paid by, the applicable Moonkey Advertising Client(s).
  • Notwithstanding anything to the contrary contained herein, Moonkey may, but shall have no obligation or liability to, pay any amounts if an invoice is not received by Moonkey within six (6) months of the end of the month in which the relevant Video Advertising Placements ran on Publisher’s Site(s).
The right to receive payments owing for any participation in the Moonkey Publisher Network is personal to Publisher and may not be collected by or transferred to any third party (including as to any site(s) managed by Publisher that require separate payments) without Moonkey’s express prior written approval. Moonkey has the right to set off, claw back or charge back any amounts Publisher may owe to Moonkey, any of its affiliates or any of Moonkey’s advertising clients against any amounts payable or otherwise owing to Publisher or in Publisher’s account. If Publisher disputes any payment made under the Video Advertising Placement, Publisher must notify Moonkey in writing within thirty (30) days of any such payment, and any failure to do so within such thirty (30) day period shall be deemed a waiver by Publisher of any claim relating to any such disputed payment.
Taxes
All payments due to Publisher under this Publisher Agreement will be exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, VAT) (collectively, “Taxes”). Publisher will be responsible for payment of all Taxes and any related interest and penalties resulting from any payments made hereunder, other than any taxes based on Moonkey’s net income. Moonkey may be obligated by law to obtain tax information from Publisher and payments to Publisher may be withheld until Publisher provide this information or otherwise satisfy Moonkey that Publisher is not a person from whom Moonkey is required to obtain tax information or, if required by applicable law, may be subject to tax withholding.
Informative Rights
Moonkey may retain and use all information which Publisher provides or Moonkey otherwise collects about Publisher or Publisher’s Site(s), including without limitation site demographics, personal contact, bio, payment and other personal and non-personal information. Publisher grants Moonkey the right to access, index and cache Publisher’s Site(s), or any portion thereof, including by automated means such as Web spiders or crawlers.
  • Moonkey will use any personal information collected in accordance with the Moonkey Privacy Policy at http://www.moonkey.net/privacy-policy as may be amended.
  • Moonkey may also provide information in response to any legal process, such as subpoenas, search warrants and court orders, or to establish or exercise its legal rights or defend against legal claims, or in the context of a public or private offering of its securities or any sale of its business or assets. Moonkey disclaims all responsibility, and will not be liable to Publisher, however, for any disclosure of that information by any such third party.
Confidentiality
Publisher agrees not to disclose or, other than as expressly permitted in connection with performance of the Publisher Agreement, use Moonkey Confidential Information without Moonkey’s prior written consent.
  • The term “Moonkey Confidential Information” refers to: (a) commercial information relating to Video Advertising Placements, Moonkey’s advertising clients, including information about payments, payment history, rates, pricing, metrics, measurements, targets, and other specifications of any Video Advertising Placement or other advertising or promotional efforts relating to Moonkey’s advertising client, any Video Advertising Placements or the products or services promoted by such Video Advertising Placements; (b) all Moonkey software, technology, programming, specifications, materials, guidelines, documentation, images and screen shots relating to any Video Advertising Placement, or the offerings on the Publisher’s Account Area and elsewhere on the Moonkey platform; (c) statistics and other information relating to a Publisher’s Site(s)’s performance in any Video Advertising Placement; (d) the terms of any portion or part the Publisher Agreement including any Exhibits, schedules or other attachments thereto; and (e) any other information designated in writing by Moonkey as “Confidential” or an equivalent designation.
  • Publisher may not use any performance data or other Moonkey Confidential Information acquired during participating in any Video Advertising Placement for any Moonkey of advertising clients to promote or solicit business opportunities from any of Moonkey’s advertising clients with the effect of reducing the amount of business conducted through Moonkey by such advertising client, its agencies or affiliates, or to develop or promote, or to assist a third party in developing or promoting, any product or service offering that directly competes with any product or service provided by Moonkey.
  • The term “Moonkey Confidential Information” does not include information that (i) has become publicly known through no breach by Publisher or Moonkey, or information that has been: (ii) is independently developed without access to Moonkey Confidential Information, as evidenced in writing; (iii) is rightfully received by Publisher from a third party without any confidentiality obligation; or (iv) is required to be disclosed by law or by a governmental authority, but only to the extent Publisher is advised by counsel about what may be disclosed, provided, however, that Publisher shall give Moonkey prompt notice of such disclosure requirement and shall reasonably assist Moonkey in obtaining a protective order or equivalent.
Investigation and suspension
Moonkey may investigate any activity that in its sole determination could (a) constitute a breach or violation of applicable laws, rules, regulations, generally-adopted industry policies and practices, or Publisher’s obligations to Moonkey including all or any part of the Publisher Agreement, or (b) could adversely affect Moonkey’s or any of its advertising clients’ reputation or industry standing.
Terminations
Either party may terminate the Publisher Agreement (a) upon a breach of the Publisher Agreement by the other party upon at least ten (10) business days’ prior written notice to such breaching party, unless such breach is waived by the non-breaching party or substantively cured within such ten (10) business days’ period or (b) if the other party enters into liquidation or becomes insolvent or makes an assignment for the benefit of its creditors, or if a receiver is appointed for it or its assets, or if any bona fide petition is filed by or against it seeking its liquidation or an adjudication of its insolvency or its adjudication as bankrupt or the appointment of a receiver for it or its assets, subject in all cases to applicable law.
  • In the event Moonkey enters into agreements with Moonkey’s advertising clients that provide for placement or display of Video Advertising Placements based on commitments by Publisher of available inventory or for other provision of services beyond the Term, then notwithstanding anything to the contrary set forth in the Publisher Agreement, Moonkey may elect that the Publisher Agreement continue to apply to the serving of such Video Advertising Placements or performance of such services, and the Term shall be deemed extended with respect to such placements and services.
  • Without limiting any other relief or remedy available to it or its advertising clients, Moonkey may terminate and withhold further payments to Publisher in connection with any Video Advertising Placements and/or terminate the Publisher Agreement in Moonkey’s sole discretion without further obligation to Publisher, if Moonkey determines that Publisher and/or any of Publisher’s Site(s) has failed to comply with applicable laws, rules, regulations or generally-adopted industry policies and practices or Publisher’s obligations under any portion of the Publisher Agreement.
  • Moonkey reserves the right to terminate, with or without effective notice, any Publisher whose participation either (x) has not generated a sufficient number of valid views or engagements, as applicable, in relation to Video Advertising Placements (in each case as measured and tracked by Moonkey) for a period of two (2) months or more or (y) has been inactive for more than three (3) months based on Moonkey’s determination based on consideration such as lack of activity in Publisher’s Account Area, failure to submit invoices, non-removal of Video Advertising Placements, or any other circumstances signifying Publisher’s cessation of business or of participation in the Moonkey Publisher Network.
  • In the event the Agreement is terminated by Moonkey without cause or is terminated by Publisher in accordance with the terms hereof with proper notice, Moonkey will pay Publisher any earned balance within approximately ninety (90) days after the end of the calendar month in which the Agreement was so terminated.
  • In the event Moonkey terminates the Publisher Agreement due to any breach or other violation by Publisher or in relation to any of Publisher’s Site(s), Moonkey shall have no obligation to pay Publisher any amounts that may then be owing or payable to Publisher, subject to any remedy or relief that may be available to Moonkey as a matter of law or in equity.
  • Upon termination of participation of all of Publisher’s Site(s) in any and all Video Advertising Placements or termination of the Publisher Agreement for any reason, any provisions of the Publisher Agreement which by its terms or under circumstances are intended or would reasonably be expected to survive, shall survive termination.
No warranty
MOONKEY AND ITS AFFILIATES PROVIDE THEIR RESPECTIVE SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTY OF ANY KIND AND WITHOUT ANY GUARANTEE OF CONTINUOUS OR UNINTERRUPTED DISPLAY OR DISTRIBUTION OF ANY ADVERTISING MATERIALS. MOONKEY’S SOLE OBLIGATION IN THE EVENT OF ANY INTERRUPTION OR FAILURE WILL BE TO RESTORE SERVICE AS SOON AS REASONABLY PRACTICABLE. NEITHER MOONKEY NOR ANY OF ITS AFFILIATES MAKE ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY VIDEO ADVERTISING PLACEMENTS, OR ANY AND ALL ADVERTISING OR OTHER SERVICES PROVIDED BY MOONKEY. MOONKEY AND ITS AFFILIATES HEREBY EXPRESSLY EXCLUDE ANY AND ALL WARRANTIES, REPRESENTATIONS, CONDITIONS AND ALL OTHER TERMS OF ANY KIND WHATSOEVER IMPLIED BY STATUTE OR COMMON LAW, INCLUDING WITHOUT LIMITATION NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE PUBLISHER AGREEMENT, MOONKEY SHALL HAVE NO LIABILITY TO PUBLISHER, PUBLISHER’S END USERS, OR IN RELATION TO ANY OF PUBLISHER’S SITE(S), OF ANY KIND WHATSOEVER IN CONNECTION WITH THE USE OF THE MOONKEY PLAYER OR THE DISPLAY OR SUBJECT MATTER OF ANY VIDEO ADVERTISING PLACEMENTS. Without limiting the foregoing, Moonkey will have no obligation, liability or other responsibility for anything related to Publisher’s Site(s), including without limitation the receipt of queries from end users of Publisher’s Site(s) or the transmission of data between Publisher’s Site(s) and Moonkey. Moonkey makes no guarantee regarding the number of views or engagements that any Video Advertising Placements will deliver on Publisher’s Site(s), nor the timing of delivery of such views or engagements, since these matters are under Publisher’s control.
Limitations of Liability
EXCEPT FOR PUBLISHER’S CONFIDENTIALITY AND INDEMNIFICATION OBLIGATIONS OR ITS BREACH OF NON-CIRCUMVENTION, NON-SOLICITATION OR NON-COMPETE OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THE PUBLISHER AGREEMENT OR ANY EXHIBIT, SCHEDULE OR OTHER ATTACHMENT HERETO, WHETHER IN TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), CONTRACT, MISREPRESENTATION, RESTITUTION OR OTHERWISE FOR ANY LOSS OF PROFITS, DEPLETION OF GOODWILL AND/OR SIMILAR LOSSES OR LOSS OR CORRUPTION OF DATA OR INFORMATION, OR PURE ECONOMIC LOSS, OR FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL LOSS, COSTS, DAMAGES, CHARGES OR EXPENSES HOWEVER ARISING HEREUNDER. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN OR OTHERWISE, MOONKEY’S AGGREGATE LIABILITY TO PUBLISHER UNDER THE PUBLISHER AGREEMENT IS LIMITED TO THE NET AMOUNT FOR ANY CLAIM PAID BY MOONKEY TO PUBLISHER DURING THE THREE-MONTH PERIOD PRECEDING THE DATE OF SUCH CLAIM.
Representation and Warranties
Each of the undersigned parties represents, warrants and covenants that it has all necessary rights, power, and authority to enter into and perform the Publisher Agreement. Further, Publisher represents, warrants and covenants that it is authorized to act on behalf of each of Publisher’s Site(s) for the purposes of performing the Publisher Agreement, displaying the Moonkey Player and Video Advertising Placements and participating in the Moonkey Publisher Network; it complies, and will continue to comply with all applicable laws, statutes, ordinances, and regulations (including without limitation any relevant data protection or privacy laws); and all content on any of Publisher’s Site(s) is legal to distribute in the manner and locations as distributed and that the Publisher owns or has legal right to use any and all copyrighted material. Publisher agrees to indemnify, defend and hold Moonkey, its agents, affiliates, subsidiaries, directors, officers, employees, and applicable third parties (including without limitation advertising clients, syndication partners, licensors, licensees, consultants and contractors, agents and representatives) harmless from and against any and all third party claims, liability, loss, and expense (including damage awards, settlement amounts, and reasonable legal fees), brought against any Indemnified Person, arising out of, related to or which may arise from: Publisher’s participation in the Moonkey Publisher Network; Publisher’s conflict with, breach or violation of any term of the Agreement or the Moonkey Network Policies; existence or operation of Publisher’s Site(s) or any materials that appear thereon, including based on the combination of Publisher’s Site(s) or such materials with other applications, content, or processes; use, development, design, manufacture, production, advertising, promotion, or marketing of Publisher’s Site(s) or any materials that appear on or within Publisher’s Site(s); Publisher use of the Moonkey Player or any Video Advertising Placements, whether or not such use is authorized by or violates the Agreement or applicable law or any other obligations to which Publisher are bound; or Publisher or Publisher employees’ negligence or wilful misconduct.
Miscellaneous
Force Majeure. Without limiting the foregoing and except for payment obligations, neither party shall have any liability for any failure or delay resulting from any condition beyond the reasonable control of such party, including but not limited to governmental action or acts of terrorism, earthquake or other acts of God, labour conditions, and power failures.
Publicity. Neither party will use the other party’s name, logo, trademarks or service marks in any press release or any other public announcement without the prior written approval of such other party. Nothing in the Agreement shall prevent either party from making any statement about its business relationship with the other within the scope of the Publisher Agreement or otherwise making public or private statements in the normal course of its business that do not disclose any Moonkey Confidential Information. Publisher will not publicly or privately disparage Moonkey or any of its affiliates or its products or services or business, nor engage in any action or practice that devalues or reflects poorly on Moonkey or its reputation or goodwill. Notwithstanding the foregoing, Moonkey may, and is hereby granted the right by Publisher to, use Publisher name and logo in presentations, marketing materials, customer lists, financial reports, and Web site listings of customers.
No Agency. Publisher will not misrepresent or embellish the relationship between Moonkey and Publisher (including by expressing or implying that Moonkey supports, sponsors, endorses, or contributes to any charity or other cause), or express or imply any relationship or affiliation between Moonkey and Publisher or any other person or entity except as expressly permitted by the Agreement. The relationship between Moonkey and Publisher is not one of a legal partnership relationship, but is one of independent contractors.
Non-Assignment. Publisher may not resell, assign, or transfer any of Publisher rights hereunder. Any such attempt may result in termination of the Publisher Agreement, without liability to Moonkey. Notwithstanding the foregoing, Moonkey may assign the Publisher Agreement either (x) in whole or in severable part, to any affiliate at any time without notice (including without limitation such that the assigning entity has no further rights and obligations and the assignee entity assumes all rights and obligations or such that both the assignee and assignor have full rights and obligations severally under the Publisher Agreement) or (y) in connection with any corporate reorganization, stock purchase, merger, or sale of all or substantially all of the business and assets associated with the subject matter of the Agreement.
Governing Law. The Publisher Agreement shall be governed by the laws of France. Any dispute or claim arising out of or in connection with the Publisher Agreement shall be adjudicated in the courts of France located in Paris, France.
This Publisher Agreement is subject to change at Moonkey's sole discretion.