Publisher Terms & Conditions

 

This Agreement is made by and between:

Shoogloo Network Private Limited a Company incorporated under the Companies Act, 1956 (Since then substituted by the Companies Act, 2013) having its registered office at 5574-A, First Floor, Kashiram Building, Kohlapur Road, Kamla Nagar, Delhi 110007 (Hereinafter referred to as the “First Party”) which expression shall, unless repugnant to the context or meaning thereof, be deemed to include its heirs, legal representatives, administrators, executors and assigns.

and

You (Hereinafter referred to as the “Second Party”) which expression shall, unless repugnant to the context or meaning thereof, be deemed to include its heirs, legal representatives, administrators, executors and assigns.

 

Article 1: Definitions

The following terms shall have the following meanings:

1.1.        “Affiliate” means, Second Party under this agreement and any other entity which satisfy either of conditions:

(a)          entity directly or indirectly belonging to or controlled by the Second Party through management appointment or otherwise.

(b)          entity with which Second Party entered into an agreement or any other agreement for carrying out the work assigned by the First Party as per the Work Order. “Control” means the power of an entity to secure that the affairs of another are conducted in accordance with its wishes and "controlled" shall be construed accordingly.

1.2.        “Deliverables” means the deliverables described in each Work Order (where applicable) but specifically excluding tools, platforms and methodologies used by Second Party to provide the Services and/ or deliverables.

1.3.        “Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, trademarks and service marks, trade names, domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, and any other intellectual property rights, in each case whether registered or unregistered and including all applications (and rights to apply) for, and the right to be granted renewals or extensions of, and rights to claim priority from, these rights and all similar or equivalent rights or forms of protections which subsist or will subsist, now or in the future, in any part of the world;

1.4.        “Materials” means any graphic design, copy writing, animation, sound production, video, graphic production, html, JavaScript or other website code, software, data, databases, keywords, links, cookies, pixels, tags, locally shared objects, marketing strategy documents, advertising materials and other creative or marketing materials.

1.5.        "IT Act, 2000" means the Information Technology Act 2000, its rules and amendments.

1.6.        “Services” means the services to be provided by Second Party to First Party pursuant to this Agreement, as described in each Work Order.

1.7.        “Work Order” shall mean the first or subsequently agreed Work Order as well as any additional document signed by both parties. Work Order may be issued by First Party on monthly basis or such other intervals under this Agreement.

 

Article 2: Brief of the Agreement

2.1.        The Terms and Conditions under the Agreement apply to the performance of services provided by the Second Party in respect of each Work Order issued by the First Party. In the event of any conflict or inconsistency, the documents shall prevail in the following order: (i) Terms & Conditions of the present agreement; (ii) Work Order.

 

Article 3: Terms & Conditions

3.1.        Invoicing

All invoices are to be raised only upon sharing of final validation report by the First Party and must be accompanied by evidence of activity done by the Second Party along with this agreement (s) signed by the Second Party. Invoice date must be on or after the validation conformation date with respect to that particular invoice. Back-dated invoices will not be accepted. For the sake of clarity, any payment to the Second Party will be made only after execution of the present agreement. The Second Party shall raise the invoice (s) after 45 (Forty-Five) days of campaign completion subject to conditions, herein. Any invoice (s) raised after before 45 (Forty-Five) days or after 90 (Ninety) days shall be deemed to be null and void and shall not be settled by the First Party under any circumstances, whatsoever.

3.2.        Compliance with the Tax Statutes

1. a) The Second Party undertakes and agrees that it is the responsibility of the Second Party to register itself under the Central Goods and Services Tax Act, 2017 (CGST Act), the State Goods and Services Tax (SGST) Act, 2017, Integrated Goods and Services Tax (IGST) Act, 2017, Union Territory Goods and Service Tax (UTGST) Act, 2017 (Hereinafter individually/collectively called as “GST Law”) and any other taxes levied under the GST law as may be applicable to him and disclose to First Party the registration number/s while corresponding it and also ensure that the eligible tax credits are made available to the First Party. Further, the First Party undertakes and agrees to ensure that the GST registration number is mentioned on the invoice and other correspondence and that all taxes to be charged will be mentioned in the invoice itself and shall be disclosed separately in the invoice, failing which it will be considered as if the Second Party is not registered under the GST Law and the provisions as may be applicable to unregistered Publisher would be applicable.
2. b) It shall be the sole responsibility of the Second Party to abide by the provisions of the GST Law and issue invoice /documents in compliance with the applicable tax laws including GST Law and file all the returns prescribed under the GST Law and ensure that the compliance rating is not reduced below the prescribed limit as laid down in the GST Law and further enable First Party to fill in the details as required in the returns prescribed in the GST Law. Notwithstanding anything contrary contained in this RO, in case the compliance rating is reduced below the prescribed limit, the amount related to tax will be liable to be paid only on receipt of input tax credit.
3. c) First Party agrees to release the payment of GST upon the fulfilment of Publisher prescribed conditions, upon completion of certain actions by the Second Party and only after the details filled by the Second Party in its return are auto populated in the return of First Party and further the same matches with the details so provided by the Second Party in its invoice.
4. d) It is agreed and understood by the Second Party that in case any credit of Goods and Services Tax is not received, or short credit is received or in case of any error because of which no credit is received then such amount equivalent to short credit or zero credit, shall be recoverable from the Second Party. Where, the amount of invoice along with GST has already been paid by the First Party, the same is liable to be recovered by Second Party or adjustable against subsequent payments.
5. e) First Party reserves the right to adjust any recovery to be made by it for loss suffered due to failure on the part of the Second Party to comply with the GST Law, by adjusting it or withholding it from any amount deposited with First Party or any other amount payable by First Party to the Second Party (present or future). First Party shall have the right to deduct appropriate taxes as prescribed by the GST Law. In case of violation of any provisions of taxation laws including GST laws by the Second Party, the Second Party undertakes to indemnify the First Party for any loss or claim or demand or penalty, if any, which may be incurred or suffered by the First Party.

 

Article 4: Ad Guidelines and Fraud

4.1.        Second Party will deliver Ads to Publisher Websites in compliance with the terms and conditions set forth in this Agreement, any restrictions or specifications set forth in the applicable campaign (e.g., content limitations, technical specifications, and start and end dates), and any Company guidelines or industry policies, including but not limited to, advertising criteria or editorial guidelines, carrier or industry guidelines, industry codes of conduct, privacy policies, user experience policies, and community standards regarding obscenity or indecency, that will be made available by the First Party to the Second Party from time to time (collectively, "Guidelines").

4.2.        Penalty for Violation of Guidelines

1. a) Ads that run in violation of any Guidelines or that, in First Party’s sole judgment, do not comply with any applicable law, regulation or other judicial or administrative order, if Second Party is notified of such violation, it will not be eligible to earn or receive payment for any Commissions; and
2. b) After the First Party notifies the Second Party that specific Ads are in violation of any Guidelines; Publisher will make commercially reasonable efforts to correct within 24 (Twenty-Four) hours of such violation. In the event that any such correction materially and adversely impacts the First party or its clients, First Party may terminate the Second Party and all payments to Second Party shall stand forfeited.
3. c) In any case, the payment shall be made to the Second Party only upon satisfactory closure of the campaign with the client. In case there is any issue that the client raises with regards to the quality of the campaign, the payments of invoices of the Second Party shall be withheld till the quality issues are resolved by the Second Party to the satisfaction of the Client.

4.3.        Withholding of Commission

First Party will have no obligation to pay any Commissions, and is permitted to deduct or withhold any Commissions due to the Second Party, where it is determined or reasonably suspected by the First Party that the Second Party has committed:

1. a) fraud, false representation, or request for end users to register and generate Confirmed Conversions.
2. b) confirmed conversions originating on Publisher Websites that disparage, devalue, ridicule, reflect poorly on First Party, its reputation or goodwill.
3. c) fraudulent, misleading or false activities; or
4. d) activities from pre-population of forms or mechanisms not approved by First Party. First Party reserves the right to withhold or deduct Commissions, if applicable, or suspend payment of such Commissions, pending First Party/ Company's reasonable investigation of any of the foregoing or any breach of this Agreement by Second Party. It is the obligation of the Second Party to prove to First Party that they are not committing fraud or running any form of campaign that is not compliant with a campaign’s terms.
5. e) have click through rates or order conversion rates that are much higher than the industry average and where solid justification is not evident.
6. f) have user or subscriber termination rates that are much higher than the industry average.
7. g) have only click programs that generate clicks with no indication by site traffic that it can sustain the clicks reported.
8. h) have shown fraudulent conversions as determined by the First Party.
9. i) use fake redirects, automated software, and/ or fraud to generated clicks or conversions
10. j) causes First Party/ Company’s advertiser to report to First Party that they suspect fraud or non-compliance with campaign terms.

In addition, First Party reserves the right to withhold payment for a portion of the Confirmed Conversions delivered under any work order at a rate which First Party, in its sole discretion, determines to be appropriate to account for estimated refunds, chargebacks, fraudulent orders, or other factors that arise from time to time that materially diminish the attractiveness of the conversions (including confirmed conversions) delivered under this program.

4.4.        Notification of Unacceptable Ad Material

If Ad materials provided by First Party are damaged or otherwise unacceptable, Second Party will use commercially reasonable efforts to notify Company within 2 (Two) business days of its receipt of such damaged or unacceptable Ad materials.

4.5.        No Modification to Advertiser Creative or Content

Second Party will not edit or modify the submitted Ads in any way, including, but without limitation, resizing the Ad, without First Party’s approval. Second Party shall use all such Ads in strict compliance with this Agreement and any written instructions provided by Company.

4.6.        Adware and Spyware prohibited

Second Party shall at no time, engage in, disseminate, promote or otherwise distribute, any First Party marketing campaign through the use of contextual media, specifically downloadable software (also called adware, pop-up/pop-under technologies, plug-ins, and other names as applicable). This prohibition applies equally to Second Party and any of its business partners, sub-publishers, etc. In the event First Party discovers that Second Party is engaging in, disseminating, promoting or otherwise distributing, any Company Publisher-related contextual marketing campaign which results in a violation of the Agreement, then First Party may, in its sole discretion, terminate this Agreement and immediately halt any and all Company Publisher-related contextual marketing campaigns, making payment only on legitimate earnings of Second Party as accrued till the date and time of termination. Second Party agrees and acknowledges that if it violates its obligations under this Agreement, First Party shall be entitled to seek:

1. a) injunctive relief without the requirement of posting a bond; and/or
2. b) any and all other remedies that Company may have at law or in equity.

 

Article 5: Publisher Covenants.

5.1.        Second Party covenants that it shall not:

1. a) send unsolicited commercial e-mail (SPAM) (i.e., it will send commercial e-mails in connection with any Programs to only those e-mail addresses that have consented to receive such commercial e-mails)
2. b) Engage in any kind of deceitful, misleading or other unfair trade practices, or fraudulent or other unlawful practice when marketing any Programs.
3. c) any deceptive form of advertising which includes, but is not limited to, phishing, sending an e-mail to an individual falsely claiming to be an established legitimate enterprise in an attempt to scam or defraud the user into surrendering private and personal information that can be used for identifying theft of other activity.

 

Article 6: Non-Compete and Non-Solicit

6.1.        Second Party agrees not to solicit or otherwise seek to hire, cause, encourage, or attempt to encourage:

1. a) any former or current sales agent or employee of First Party or any successor thereto, or
2. b) any current or former sales agent or employee of First Party to become a sales agent or employee of any other person or entity (other than the Buyer or an affiliate or successor thereof).
3. c) Second Party will not knowingly contact, solicit the business of, or accept orders from any customer for the purpose of moving such customer from First Party or switching such customer to another provider that competes with First Party.
4. d) The obligations of Second Party not to solicit as set forth in this Section shall continue for a period of 5 (Five) years from the Closing Date.

 

Article 7: Assignment

Neither Party may assign or transfer their respective rights or obligations under this Agreement without prior written consent from the other Party. Except that if the assignment or transfer is pursuant to a sale of all or substantially all of a Party’s assets or is pursuant to a sale of a Party’s business, then no consent shall be required. If an assignment or transfer is made pursuant to either a sale of all or substantially all the Party’s assets or pursuant to a sale of the business, then written notice must be given of such transfer within 10 days of such assignment or transfer.

 

Article 8: Indemnification

The Second Party shall indemnify and hold harmless the First Party from and against any and all Third Party claims, demands, losses, damages and reasonable expenses (including, without limitation, reasonable legal fees) arising from or in connection with the conduct of this agreement. The party entitled to an indemnity under this Agreement shall take all reasonable steps to mitigate the applicable costs, expenses, charges, damages, liabilities, claims or actions.

 

Article 9: Binding Effect

All the terms, covenants and conditions herein contained shall be for and shall inure to the benefit of and shall bind the respective parties hereto and their successors and assigns, respectively.

 

Article 10: Governing Law

The parties hereto expressly agree that this Agreement will be governed by, interpreted under, and construed and enforced exclusively in accordance with the laws of India.

 

Article 11: Dispute Resolution

11.1.     All disputes, controversies, claims and differences arising out of or in relation to this Agreement, or any breach hereof, except those which cannot be settled through correspondence and mutual consultation of the Parties hereto, shall be finally settled by Arbitration to be conducted in accordance with the provisions of the Indian Arbitration and Reconciliation Act, 1996 or any statutory modification or re-enactment for the time being in force, the provisions whereof shall apply as far as possible.

11.2.     The Venue and Seat of Arbitration shall be New Delhi. The language of Arbitration shall be English.

11.3.     Notwithstanding anything contained in the Agreement, on termination of the Agreement, this clause will continue to persist until all disputes related to the Parties under this Agreement have been resolved.

11.4.     The cost of arbitration shall be paid as provided in the Arbitration decision.  Notice of the demand for Arbitration shall be filed in writing with the other Party to this Agreement.  The demand shall be made within a reasonable time after the claim, dispute or other matter in question has arisen and the inability to settle the same through correspondence and mutual consultations in accordance with the provisions of this Agreement has been unequivocally established.

 

Article 12: Force Majure

12.1.     Neither party shall be responsible or liable for or deemed in breach hereof because of any delay or failure in the performance of its obligations hereunder (except for obligations to pay money due prior   to occurrence of force majeure events under this Agreement) or failure to meet milestone dates due to any event or circumstance (a force majeure event) beyond the reasonable control of the party experiencing such delay or failure, including the occurrence of the following:

1. a) Acts of God.
2. b) Typhoons, floods, lightening, cyclones, Hurricanes, draught, famine, epidemic, pandemic or other natural calamities.
3. c) Acts of war or Civil unrest.
4. d) Any requirement, action or omission to act pursuant to any judgment or order of any court or judicial authority.
5. e) Earthquakes, explosions etc.
6. f) Pandemic

 

Article 13: Other Terms and Conditions

1. a) The Second Party may at any time be insisted upon strict compliance with these terms and conditions, notwithstanding any previous custom, practice or course of dealing to the contrary.
2. b) The terms and conditions herein can be modified or cancelled only in writing and be signed by both the parties.
3. c) The campaign end-date extension shall be discussed and agreed between both the parties.
4. d) In case of the campaign being stopped before the end date due to any unforeseen circumstances, the payment shall be made on a pro rata basis of days or deliverables till the campaign was active. (Or full and final payment for the number of days the campaign was active shall be made within the specified time limit)
5. e) Campaign shall be deemed to commence only upon signing of this agreement

 

Article 14: Entire Agreement

These Terms and Conditions, together with the terms for each of the Programs constitute the entire agreement between the parties and supersede all prior agreements or understandings between the parties.

 

Article 15: Relationship

The parties agree that First Party is acting as an independent contractor in performing the services and that the relationship between the First Party and Second Party shall not constitute a partnership, joint venture, or agency. Neither First Party/ Company nor any of Company’s employees or agents (collectively referred to herein as the "Employees") (i) is an employee, agent or legal representative of Second Party, or (ii) shall have any authority to represent Second Party or to enter into any contracts or assume any liabilities on behalf of Second Party. First Party/ Company retains all the rights and privileges of sole employer of its Employees, including, without limitation, the right to control, hire, discipline, compensate, and terminate such Employees. Neither Company nor any of its employees shall have any right to receive any employee benefits as are in effect generally for Publisher employees.

 

Article 16: Privacy Policy

Second Party shall maintain and post in a conspicuous manner on all its websites involved in the Programs, a privacy policy that clearly and adequately describes how consumer information is collected and used.

 

Article 17: Payment

1. a) The First Party may settle the accounts within forty-five (45) days after receipt of a proper invoice subject to statutory deductions. Payments in relation to any service and/or any Advertiser shall not be payable by the First Party to the Second Party until such time as the First Party has received the corresponding Advertiser payment. Additionally, the First Party reserves the right to reduce any payments owed to Second Party as a consequence of any offsets taken by Advertisers for invalid Events, technical errors, tracking discrepancies. First Party shall compile, calculate and electronically deliver data required to determine Second Party/ Publisher’s billing and compensation. First Party will not pay for any Events that occur before a Program is initiated, or after a Program terminates. If there is a shortfall of delivery in inventory, then payments will be made on a pro–rata basis. In the event there is an over delivery of inventory, the payments will be made only if the excess delivery is acceptable and was approved by First Party in writing.
2. b) Payment will strictly be made against the invoice/s and no on-account payment requests will be entertained by First Party. Payments will be subject to TDS and any other mandatory statutory deductions at prevailing rates.