December 20, 2007
You (referred to hereinafter as “You” or “Your”) agree to be bound by the terms and conditions set forth herein and these terms and conditions constitute a binding legal agreement (the "Agreement") between Quattro Wireless, Inc. ("Quattro") and You.
WHEREAS, Quattro provides services pertaining to the creation of mobile Web properties and the sale and placement of mobile advertisements on Quattro’s network of publisher’s Web sites (the “Services”), as more fully described on Quattro’s Web site located at the URL: GetMobile.com (the “Site”).
WHEREAS, You, a publisher, have elected to use the Site and Services in accordance with this Agreement.
THEREFORE, the parties, in consideration of the mutual obligations set forth below, intending to be legally bound, agree as follows:
1. Changes to Services and Agreement.
Quattro reserves the right in its sole discretion to modify this
Agreement, the Site, and/or the Service at any time. Quattro will notify You of
any changes to the Agreement by either posting the revised Agreement on the
Site or notifying You directly (by Email or in any other manner). Your
continued use of the Site and/or the Service after any such modification and
notification thereof constitutes Your consent to such modification. This
Agreement is void where prohibited by law, and Your right to access the Site is
revoked in such jurisdictions.
2. Publisher Approval.
If You are a publisher and desire to be accepted into Quattro’s GetMobile™
Exchange, You must first obtain approval from Quattro. Acceptance into
Quattro’s GetMobile Exchange allows Your mobile Web properties the opportunity
to receive placement of mobile advertisements. Quattro in its sole discretion may
reject Your request to be accepted into Quattro’s GetMobile Exchange and may thereafter
in its sole discretion terminate Your participation in the Quattro’s GetMobile
Exchange. In addition, Quattro may in its sole discretion reject or terminate
Your use as a publisher of the Site and Services at any time.
3. Ownership; Restrictions.
Quattro has all right, title or
interest in the Site, the Services and the underlying intellectual property
rights therein. Quattro reserves any rights not explicitly granted in this
Agreement. You acknowledge that all non-public information, data and reports
made available by Quattro hereunder or otherwise as part of the Services is
proprietary to and owned by Quattro. All proprietary and confidential
information is protected by copyright, trademark and other intellectual
property laws. You agree not to reproduce, disseminate, sell, distribute or
commercially exploit any proprietary or confidential information of Quattro’s in
any manner. These non-disclosure obligations shall survive termination or
expiration of this Agreement. You may not copy, lease, decompile, disassemble,
reverse engineer or distribute any content on the Site. You shall not submit through
the Services any content that is infringing, libelous, defamatory, obscene,
pornographic, abusive, offensive or violates any law or right of any third
party. If You are a publisher, You shall not (nor authorize others to) run
"robots" or "spiders" against your mobile Web site or use
any means to artificially increase the number of impressions or click throughs
available (a click through is generated when a user clicks on an advertiser's message
in order to move to the advertiser's Web site).
4. Termination; Suspension of Services.
Either party may terminate this Agreement
at any time by notifying the other party by any means. All provisions of this
Agreement which by their nature should survive termination shall survive
termination, including, without limitation, ownership provisions, warranty
disclaimers, and limitations of liability. Quattro in its sole discretion and
at any time may change, suspend or discontinue the Services and/or Your right
to use the Services or access the Site.
5. License Grants.
Publisher. If You are a publisher, You grant Quattro a worldwide right and license
to (a) use and access Your mobile Web site and any information or parameters
inputted by You on the Site for use with the Services, (b) access Your wired Web
site and the content thereon as reasonably required solely to develop and
create Your mobile Web site, (c) access, display, store, host and post on Your
mobile Web site all of Your wired Web site content, and, (d) if applicable,
host your mobile Web site.
6. Fees.
Publisher. (a) Revenue Share. If You are a publisher and have been accepted
into and while you are active in the GetMobile Exchange, You shall receive a
percentage of the Net Advertising Revenue of advertisements associated with Your
use of the Services as specified on the Site (Quattro shall retain the
remaining portion of the Net Advertising Revenue). “Net Advertising Revenue” is
defined as the gross advertising revenue invoiced and
collected by Quattro (for
and arising out of campaigns sold and placed on Your mobile Web site by
Quattro) less third party advertising agency fees, partner fees, carrier fees, discounts,
and where applicable, credits, refunds and sales or use taxes. Quattro shall
remit such amounts to You by check or electronic funds transfer within the
later of (i) thirty (30) days following the end of each quarter in which the
applicable advertisement campaign generated advertising revenue on Your mobile Web
site and (ii) thirty (30) days following the date that Quattro actually
receives the advertising revenue from the advertisers for such advertisement campaign.
A Quattro payment report summarizing Your activity will accompany each payment.
Quattro will accrue and hold payments due to You until the aggregate amount due
exceeds $50 (fifty dollars). (b) Hosting Fee. If You are a publisher and have not
been accepted into or elected not to participate in the GetMobile Exchange,
then You shall not be entitled to receive any Net Advertising Revenue and You
shall pay a monthly hosting fee in the amount specified on the Site. Such
monthly hosting fee shall be paid in advance on or around the first day of each
calendar month and such amount shall be charged to the credit card number or
bank account You provided. If Quattro does not host Your mobile site for the
entire month, the monthly hosting fee will be pro-rated for the portion of the
month that it was hosted.
You have 30 days from the receipt of payment to report any discrepancy or to question the payment. The parties shall use their best efforts to resolve any discrepancy or question quickly and fairly. In case of a discrepancy between any report generated by Quattro’s online reporting application and Quattro’s final billing information, the billing information will control. Quattro reserves the right to change its price list at any time, upon prior notice to You, which may be sent by Email or posted on the Site. You agree to pay all applicable taxes or charges in connection with Your use of the Services.
7. Obligations; Rights.
If You
are a publisher, Quattro may make and You shall permit Quattro to make all
necessary HTML changes with respect to the ad code so as to enable Quattro to deliver
impressions to advertisers in accordance with this Agreement and unless
approved in writing by Quattro, the content delivered over each of Your mobile Web
sites hereunder shall not exceed 200 gigabytes per calendar month. Quattro will
have the right to collect anonymous clickstream data by setting cookies on the
mobile Web site and the ads served thereon. This anonymous data is used for
tracking, reporting and in Quattro’s network of mobile Web
sites. Quattro represents and warrants that it will not (i) aggregate or
present personal information from the visitors to the mobile Web sites to any
third party, or (ii) aggregate or present anonymous data in a form or manner
that would permit a third party to identify any individual’s personal
information or identity the data as associated with You. You agree to comply
with the technical specifications provided by Quattro to enable proper display
of the advertisements in connection with the Services.
8. Representations and Warranties.
(i) Publisher. You represent and warrant to Quattro that
(i) You have all necessary right, power and authority to enter into this
Agreement, (ii) You are the owner of the mobile Web sites designated in
connection with the use of the Services, and (iii) such mobile Web sites and
all content thereon comply with all applicable laws, statutes, ordinances and
regulations and do not breach any duty toward or rights of any person or entity
including, without limitation, rights of intellectual property, privacy, or
rights or duties under consumer protection or product liability. In addition, You represent and
warrant that any content (the mobile Web site or any content thereon)
shall not contain, or contain links to, content which is unlawful,
libelous, defamatory, contrary to public policy, or otherwise unlawful, or any
other content deemed inappropriate by Quattro in its sole discretion. You shall
defend, hold harmless and indemnify Quattro from and against any and all
damages pertaining to third party claim related to or arising from Your mobile Web site content or links.
9. Disclaimers.
(i) Warranty Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES
PROVIDED IN THIS AGREEMENT, QUATTRO MAKES NO
REPRESENTATION OR WARRANTY EXPRESS OR IMPLIED WITH RESPECT TO ANY MATTER
WHATSOEVER, INCLUDING WITHOUT LIMITATION, NETWORK FAILURES, THIRD-PARTY AD
SERVING DIFFICULTIES, SOFTWARE PROGRAMS, SERVICES PROVIDED HEREUNDER, OR ANY
OUTPUT OR RESULTS THEREOF. QUATTRO SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY
OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. (ii) Limitation of Liability. Your sole remedy and Quattro’s
total liability arising out of this Agreement or the services provided
hereunder, whether based on contract, tort or otherwise, shall not exceed the
fees paid to Quattro hereunder by You or $1,000, whichever is less. You recognize
that fees hereunder are based in part on the warranty, limitation of liability
and remedies as set forth herein. (iii) Exclusion of Damages. IN
NO EVENT SHALL EITHER PARTY BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA, LOSS OF
USE, OR LOSS OF PROFITS ARISING HEREUNDER OR FROM THE PROVISION OF SERVICES,
INCLUDING ADVERTISING ON THE WEBSITE, EVEN IF ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO INDEMNIFICATION OR
INTENTIONAL MISCONDUCT. In the course of using the Site or Services, You may
be asked to provide certain personally identifiable information to Quattro. Quattro's
information collection and use policies with respect to such information are
set forth in the Site's Privacy
Policy which is incorporated herein by reference.
10. Miscellaneous.
Nothing in this Agreement shall be deemed to create a partnership or joint venture
between the parties and neither Quattro nor You shall hold itself out as the
agent of the other, except as set forth in this Agreement. Quattro may
publicly refer to You as a user of the Site or customer, and/or use Your
trademark and logo in any manner, including as a part of Quattro’s resumes,
client lists or case studies, or in other promotional information, including,
but not limited to, press releases, brochures, reports, letters, white papers,
and electronic media such as Email or Web page. Neither party shall be liable
to the other for delays or failures in performance resulting from causes beyond
the reasonable control of that party. Any notice required or permitted to be
given by either party under this Agreement shall be in writing and shall be
personally delivered or sent by a reputable overnight mail service (e.g.,
Federal Express), or by first class mail (certified or registered). Failure by
either party to enforce any provision of this Agreement shall not be deemed a
waiver of future enforcement of that or any other provision. Any waiver,
amendment or other modification of any provision of this Agreement shall be
effective only if in writing and signed by the parties. This Agreement shall be
interpreted under the laws of the Commonwealth of Massachusetts. You expressly consent to the exclusive venue and personal
jurisdiction of the State and federal courts located in Suffolk County, Massachusetts for any actions arising from or relating to this Agreement. This Agreement
may not be assigned by You without prior written consent by Quattro. This
Agreement shall be binding on permitted successors and assigns. This
Agreement, including all attachments which are incorporated herein by
reference, constitutes the entire agreement between the parties with respect to
the subject matter hereof, and supersedes and replaces all prior and
contemporaneous understandings or agreements, written or oral, regarding such
subject matter.
11. Notice and Procedure for Making Claims of Copyright Infringement. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide Quattro's copyright agent the written information specified below. Please note that this procedure is exclusively for notifying Quattro that your copyrighted material has been infringed.
Ron Pitluk – rpitluk@quattrowireless.com