PRE-LAUNCH PUBLISHER AGREEMENT
This Pre-Launch Publisher Agreement ("Publisher Agreement") is an agreement between Invisibly, Inc., a Delaware corporation, (“Invisibly”, "we," "us" or "our") and you (if registering as an individual) or the entity you represent (if registering as a business), in either case as the applicant ("you"). This Publisher Agreement, together with all other program materials which may be posted and updated online from time to time, contains the terms and conditions that govern your participation in the Invisibly content monetization platform (the "Program"). You and we are sometimes each referred to generically herein as a "Party" and collectively as the "Parties."
IF YOU (1) USE THE INVISIBLY SYSTEM SOFTWARE; (2) CREATE, USE, OR DISTRIBUTE ANY INVISIBLY PLUG-IN, OR (3) CONTINUE TO PARTICIPATE IN THE PROGRAM FOLLOWING OUR POSTING OF A REVISED PUBLISHER AGREEMENT, OR REVISED OPERATIONAL DOCUMENTATION ON THE PROGRAM WEB SITE, YOU (A) AGREE TO BE BOUND BY THIS PUBLISHER AGREEMENT; (B) ACKNOWLEDGE AND AGREE THAT YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS EXPRESSLY SET FORTH IN THIS PUBLISHER AGREEMENT; AND (C) REPRESENT AND WARRANT THAT YOU ARE LAWFULLY ABLE TO ENTER INTO CONTRACTS AND THAT YOU ARE AND WILL REMAIN IN COMPLIANCE WITH THIS PUBLISHER AGREEMENT AND ANY PROGRAM PARTICIPATION REQUIREMENTS. IN ADDITION, IF THIS PUBLISHER AGREEMENT IS BEING AGREED TO BY A COMPANY OR OTHER ENTITY, THEN THE PERSON AGREEING TO THIS PUBLISHER AGREEMENT ON BEHALF OF THAT COMPANY OR ENTITY REPRESENTS AND WARRANTS THAT HE OR SHE IS AUTHORIZED AND LAWFULLY ABLE TO BIND THAT COMPANY OR ENTITY TO THIS PUBLISHER AGREEMENT.
1. Description of the Program. The purpose of the Program is to permit you to monetize your content at prices you determine, and paid for by Invisibly users and the Invisibly payments system which may from time to time serve ads in connection with advertising campaigns (the “System”).
2. Revenue Share. In exchange for your participation prior to and through the Public Launch (defined below), this Publisher Agreement entitles you to receive ninety percent (90%) of all content revenue sold through the System (“Revenue Share”). This Revenue Share will survive modification of these terms or any other Program materials posted to the Invisibly website. Your Revenue Share is tied to your Publisher Unique ID provided upon acceptance hereof (“Unique ID”).
3. System Testing. You reserve the option to share analytics data and/or conduct mutually agreeable testing with us prior to System launch or live implementation (“Testing”). We will provide you with implementation assistance and technical support. In the event you do not elect to participate in Testing, we will provide you with anonymized System-wide Testing results periodically at our discretion.
4. Program Launch. We will provide you with at least ninety (90) days prior written notice of the Program launch date, after which period we will make the system available to other publishers with a lower Revenue Share (the “Public Launch”).
5. Content Pricing. You may make available for sale your content at prices assigned by you at your sole discretion or may elect to use the system’s Optimal Price Recommendation Engine to price content dynamically and maximize revenue.
6. Earned Revenue. We will credit your account balance as content is sold on your properties via the System – either instantaneously for per-user-view content or incrementally based on subscription billing cycles. Revenue payable to you is your Revenue Share (90%), net of any third-party credit card processing fees (the “Earned Revenue”). Payments shall be remitted monthly based on your prior month’s Earned Revenue, net 60 days EOM.
7. Good Standing. You will remain in “Good Standing” so long as you: (i) do not attempt to defraud or manipulate the System; (ii) do not intentionally and systematically exploit users’ price obfuscation threshold; (iii) otherwise comply with the terms hereof and other program documentation, and (iv) refrains from any action that would cause the System to become regulated as a currency by a government entity. We will notify you of any violations and the parties agree to use their best efforts to remediate.
8. Term and Termination. The term of this Agreement will begin upon your redemption of your Unique ID to use the System with the beneficial Revenue Share. Either you or we may terminate this Agreement at any time, with or without cause, immediately upon providing written notice of termination to the other party.
9. Advertisement-free Experience. Content monetized via the System must be free of advertisements placed, owned or controlled by you or your affiliates. “Advertisements” are defined as any external message other than what is relevant to the core content. Notwithstanding the foregoing, advertorial or other branded content in textual, video or any other medium is excepted from this rule (including internal marketing of your newsletters, subscriptions and other original content), as is sponsorship content that is not exhibited as display advertising or pre-roll.
10. User Data. We will share with you: (i) anonymized and aggregated user data for System audience who interact with your properties, (ii) performance metrics for your properties, and (iii) any other publisher or property-specific data which is useful to optimize your properties. We retain the right to redact, anonymize or withhold data as required by law to protect the privacy of individual users.
11. Intellectual Property. This Agreement is not intended, and shall not be deemed, to convey any ownership or other rights to or interests in the System to you, except as licensed in any Program materials. We retain all right, title and interest in the System, and all changes, modifications and enhancements thereto and derivative works thereof made by us, you, or you and we jointly, shall remain our property. We reserve all Intellectual Property Rights not expressly granted herein. The phrase “Intellectual Property Rights” means any U.S. and foreign patent, copyrights, moral rights, know how, author’s rights, rights of publicity, trademarks, trade names, trade secrets, licensing rights or any other proprietary or intellectual property rights under the laws of any jurisdiction now existing or hereafter arising. You shall retain all Intellectual Property Rights in your online content.
12. Confidentiality. Each party acknowledges that the other party is the owner of proprietary and valuable information, trade secrets, know-how, personally identifiable information, business plans, finances, methods of operation, and any other information deemed “confidential information” or which the disclosing party may have legal obligations to protect, all such information being "Confidential Information." Each party agrees that, except as directed by the disclosing party or as required to perform hereunder, it will not disclose any of the disclosing party’s Confidential Information.
13. License. “Program Materials” means any Software we make available to you under this Publisher Agreement for use in connection with the Program or use of the System. “Software” means software, software development kits, libraries, application programming interfaces, sample code, templates, documentation, and other related materials. Invisibly grants you a limited, revocable, non-exclusive, royalty-free, non-transferable, non-sub-licensable license to use the Program Materials solely for the purposes of Testing and participation in the Program according to the terms hereof.
14. Modification. We may modify any of the terms and conditions contained in this Publisher Agreement or any Operational Documentation at any time and in our sole discretion by posting changes online. Modifications may include, for example, changes to the Program Participation Requirements, payment procedures, and other Program requirements. Changes to this Publisher Agreement will be effective as of the date we post them, unless we specify a different effective date. You are responsible for checking for Publisher Agreement updates. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS PUBLISHER AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING OUR POSTING OF ANY CHANGE TO THE PUBLISHER AGREEMENT OR THE OPERATIONAL DOCUMENTATION WILL CONSTITUTE YOUR BINDING ACCEPTANCE OF THE CHANGE.
15. Disclaimers. THE PROGRAM, AND ALL TECHNOLOGY, SOFTWARE, FUNCTIONS, MATERIALS, DATA, IMAGES, TEXT, AND OTHER INFORMATION AND CONTENT PROVIDED OR USED BY OR ON BEHALF OF US OR OUR AFFILIATES OR LICENSORS IN CONNECTION WITH THE PROGRAM (COLLECTIVELY THE "SERVICE OFFERINGS") ARE PROVIDED "AS IS." NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS MAKE ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE WITH RESPECT TO THE SERVICE OFFERINGS. NO ADVICE OR INFORMATION OBTAINED BY YOU FROM US OR FROM ANY OTHER PERSON OR ENTITY OR THROUGH THE PROGRAM, ADS, CONTENT, OPERATIONAL DOCUMENTATION, OR THE DEVELOPER SITE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS PUBLISHER AGREEMENT.
EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, WE AND OUR AFFILIATES AND LICENSORS DISCLAIM ALL WARRANTIES WITH RESPECT TO THE SERVICE OFFERINGS, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE.
WE MAY DISCONTINUE ANY SERVICE OFFERING, OR MAY CHANGE THE NATURE, FEATURES, FUNCTIONS, SCOPE, OR OPERATION OF ANY SERVICE OFFERING, AT ANY TIME. NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WARRANT THAT THE SERVICE OFFERINGS WILL CONTINUE TO BE PROVIDED, WILL FUNCTION AS DESCRIBED, CONSISTENTLY OR IN ANY PARTICULAR MANNER, OR WILL BE UNINTERRUPTED, ERROR FREE, OR FREE OF HARMFUL COMPONENTS. NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY ERRORS, INACCURACIES, OR SERVICE INTERRUPTIONS; OR ANY UNAUTHORIZED ACCESS TO OR ALTERATION OF, OR DELETION, DAMAGE, OR LOSS OF, YOUR PROPERTIES OR ANY DATA, IMAGES, TEXT, OR OTHER INFORMATION OR CONTENT.
WE SPECIFICALLY DISCLAIM ANY REPRESENTATION OR WARRANTY REGARDING THE NUMBER OR QUALITY OF ADS THAT MAY BE SENT TO YOUR PROPERTIES, THE MEANS BY WHICH WE DETERMINE WHICH ADS WILL BE SERVED TO YOUR PROPERTIES, THE FEES THAT YOU MAY EARN FROM THE SERVICE OFFERINGS, AND ANY BENEFIT THAT YOU MIGHT OBTAIN THROUGH YOUR PARTICIPATION IN THE PROGRAM. NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY LOSS OF PROSPECTIVE ADVERTISING FEES OR OTHER BENEFITS, ANY EXPENDITURES OR COMMITMENTS BY YOU IN CONNECTION WITH YOUR PARTICIPATION IN THE PROGRAM, OR ANY TERMINATION OF YOUR PARTICIPATION IN THE PROGRAM.
16. Limitation of Liability. WE WILL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING ANY LOSS OF ADVERTISING FEES, PROFITS, GOODWILL, USE, OR DATA) ARISING IN CONNECTION WITH THIS PUBLISHER AGREEMENT, THE PROGRAM, OPERATIONAL DOCUMENTATION, THE INVISIBLY SITE, OR THE SERVICE OFFERINGS (DEFINED ABOVE), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING IN CONNECTION WITH THIS PUBLISHER AGREEMENT, THE PROGRAM, THE INVISIBLY SITE, AND THE SERVICE OFFERINGS WILL NOT EXCEED THE TOTAL FEES PAID TO YOU UNDER THIS PUBLISHER AGREEMENT IN THE SIX MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO THE MOST RECENT CLAIM OF LIABILITY OCCURRED. EACH AMAZON PARTY IS SEVERALLY LIABLE FOR ITS OWN OBLIGATIONS UNDER THIS PUBLISHER AGREEMENT AND IS NOT JOINTLY LIABLE FOR THE OBLIGATIONS OF OTHER INVISIBLY PARTIES.
17. Governing Law. This Publisher Agreement shall be governed by and shall be construed, interpreted, and enforced in accordance with the laws of the State of New York, without reference to principles of conflicts of law.
18. Binding Arbitration. Any controversy or claim arising out of or relating to this Publisher Agreement, including the interpretation or the breach thereof, shall be settled by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules. The number of arbitrators shall be three, who possess software licensing experience and be agreed upon by the parties. The place of arbitration shall be St. Louis, Missouri. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof, but is limited to the relief or remedies permitted by this Publisher Agreement.
19. Independent Contractors. The parties to this Publisher Agreement are independent contractors. Neither party is an agent, representative or partner of the other party. Neither party shall have any right, power or authority to enter into any agreement for or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other party. This Agreement shall not be interpreted or construed to create any association, joint venture or partnership between the parties or to impose any partnership obligation or liability upon either party. Each party shall bear its own costs and expenses in performing this Publisher Agreement.
20. Severability. If any provision of this Publisher Agreement is held invalid or not enforced by us, the invalidity or non-enforcement of any term(s) shall not affect other provisions of this Publisher Agreement, and, to this end, the provisions of this Publisher Agreement are declared to be severable.
21. Entire Agreement; Conflicts. This Publisher Agreement and any other Program materials posted to the Invisibly site (collectively, the "Publisher Documents"), constitute the entire agreement between the Parties with respect to the Program, supersede any and all prior or contemporaneous agreements between the Parties with respect to the Program and do not give any third party (except where specified) any rights or remedies hereunder.
22. Publicity. You hereby authorize and permit us to use your entity or tradename in customer lists and other promotional materials, subject to your normal restrictions, solely for the purpose of showing your intent to participate in the Program as an early publisher user.