Welcome to Onswipe! We are excited for you to publish your content with Onswipe’s publishing platform. Please read below for the terms and conditions for publishers on Onswipe’s publishing platform. If you agree, mark your acceptance below. The legal Terms and Conditions begin below.
TERMS AND CONDITIONS FOR PUBLISHERS
PLEASE READ CAREFULLY THESE TERMS AND CONDITIONS (THESE “TERMS”) BEFORE USING THE ONSWIPE PLATFORM (AS DEFINED BELOW). THESE TERMS FORM A BINDING AND EXECUTED WRITTEN AGREEMENT BETWEEN YOU (“PUBLISHER”) AND LULO VENTURES, INC. (D/B/A ONSWIPE) (“ONSWIPE”)(THIS “AGREEMENT”), EFFECTIVE AS OF THE DATE PUBLISHER CLICKS THE “I AGREE” BOX ON THE ONSWIPE WEBSITE OR, IF THE PATIES ENTERED INTO A SERVICE ORDER (AS DEFINED BELOW) THE EFFECTIVE DATE SET FORTH THEREIN (SUCH DATE, THE “EFFECTIVE DATE”). BY CLICKING THE “I AGREE” BOX ON THE ONSWIPE WEBSITE, PUBLISHER AGREES THAT THE INDIVIDUAL CHECKING THE “I AGREE” BOX HAS THE AUTHORITY TO BIND PUBLISHER, THAT PUBLISHER HAS READ AND UNDERSTANDS THESE TERMS, AND THAT PUBLISHER AGREES TO BE LEGALLY RESPONSIBLE FOR EACH AND EVERY SUCH TERM AND CONDITION. IF PUBLISHER DOES NOT AGREE TO ALL OF THESE TERMS OR IF PUBLISHER DO NOT HAVE THE LEGAL AUTHORITY TO BIND THE APPLICABLE ENTITY, CLICK THE “DO NOT ACCEPT” BUTTON BELOW AND DO NOT USE THE ONSWIPE PLATFORM.
TO THE EXTENT THAT PUBLISHER AND ONSWIPE HAVE ALSO EXECUTED A SERVICE ORDER FORM PURSUANT TO WHICH THE PUBLISHER RECEIVES THE RIGHT TO ACCESS AND USE THE ONSWIPE PLATFORM, THESE TERMS ARE INCORPORATED BY REFERENCE INTO SUCH SERVICE ORDER FORM (THE “SERVICE ORDER”) AND TOGETHER THESE TERMS AND SUCH SERVICE ORDER SHALL BE DEEMED THE AGREEMENT. PUBLISHER AND ONSWIPE MAY EACH BE REFERRED TO HEREIN AS A “PARTY” IN THESE TERMS, AND ARE, COLLECTIVELY, THE “PARTIES”.
Onswipe may change these Terms upon thirty (30) days’ written notice to Publisher, which Onswipe may deliver by email or by posting notice of the change on the Onswipe website located at www.onswipe.com. If you continue to use the Onswipe Platform after the expiration of the thirty (30) day notice period, Publisher shall be deemed to have accepted and is bound by the new Terms.
Background: Onswipe makes it insanely easy for Publisher to create an app like experience for the tablet computer and mobile versions of Publisher’s websites and properties listed by Publisher in the Onswipe Platform and/or identified on the Service Order ( “Publisher Sites”) using Onswipe’s tablet computer and mobile publishing and advertising designs, themes, screens, functions, features (e.g., social, sharing, location, save and read later and other features), layouts, programs, components, software and code available as a service over the Internet which Onswipe makes available to Publisher (the “Onswipe Platform”). Onswipe may change, suspend or discontinue the Onswipe Platform (or Publisher’s access thereto) at any time, including the availability of any feature, advertisement, publisher or content, without notice or liability.
1. Access to Onswipe Platform; Content.
(a) Subject to the terms and conditions of this Agreement, Onswipe hereby grants Publisher a non-exclusive right to access and use the Onswipe Platform. The Onswipe Platform shall be used or accessed only by individual persons authorized by Publisher to access the Onswipe Platform solely using a user identifier and password provided to Publisher by Onswipe. Publisher shall not license, sublicense, sell, resell, lease, transfer, distribute, time share, or otherwise commercially exploit or make the Onswipe Platform available to any third party. All ownership rights, title, and interest in and to the Onswipe Platform, as such may be modified, upgraded, and/or enhanced from time to time (together with all intellectual property rights therein) will remain with and belong exclusively to Onswipe. Onswipe reserves all right, title and interest not expressly granted to Publisher herein.
(b) Subject to the terms and conditions of this Agreement, Publisher hereby grants Onswipe a non-exclusive, perpetual, worldwide, royalty-free, transferable right to copy, display, perform, distribute, reformat and otherwise use content published by Publisher using the Onswipe Platform in connection with providing the Onswipe Platform and related services to Publisher and end users of Publisher Sites and to authorize end users using the tablet computer and mobile versions of Publisher Sites to copy, distribute, display and use such content solely for each such end user’s personal non-commercial purposes.
(c) Publisher also hereby grants Onswipe a non-exclusive license during the term of the Agreement to list Publisher’s name and display Publisher’s logo and to list all of the Publisher Sites and the logos of the Publisher Sites in the “partner” “customer” or similar section of Onswipe’s website and in its marketing materials. Onswipe may also publicly issue and distribute a “case study” relating to the Agreement and Onswipe’s services performed on behalf of Publisher and the Publisher Sites, provided that it first obtains Publisher’s prior written consent (such consent not to be unreasonably withheld or delayed). Publisher agrees to act as a “reference account” with respect to Onswipe’s marketing and promotional initiatives.
2. Advertising Services.
(a) Publisher hereby appoints Onswipe as its non-exclusive sales principal to market, sell and serve text, in-text, graphical, audio, video or other promotional activity (“Advertisements” or “Ads”) on the Publisher Site(s) hereunder, to and from any party engaged in purchasing, creating, placing, or utilizing any direct advertisers, agencies, ad networks, ad exchanges, and ad servers (“Advertisers”). In connection with the foregoing, Onswipe will use commercially reasonable efforts to set, monitor, and enforce Publisher’s business rules as Publisher shall provide to Onswipe from time to time.
(b) Publisher may “opt out” from having Onswipe perform the advertising sales and serving services described in Section 2(a) above on a case by case basis and market and sell Advertising to Advertisers on Publisher Sites and use the Onswipe Platform to create, upload and serve such Advertisements on Publisher Sites. In such case, Publisher shall be responsible for invoicing such Advertisers and shall receive payment directly from such Advertisers.
(c) The Onswipe Platform will enable Publisher to implement Ad Tags (as defined below) throughout the Publisher Sites, with the location and quantity of such Ad Tags to be determined by Publisher in its sole discretion. Publisher will not to transfer or pass the Ad Tags to a third party. As used herein, “Ad Tag” means a unique tag, or graphical element provided by Onswipe to Publisher to be embedded on a Publisher Site to create the opportunity for Onswipe to serve an Ad to that position on the screen of a user’s device. Publisher will use reasonable efforts to ensure that the placement of such Ad Tags is made in such a way as to maximize revenue and the pricing obtained from Advertisers electing to advertise on the Publisher Sites.
4. Fees. In the absence of a Service Order, Onswipe will pay Publisher a share of the Net Advertising Sales Revenue (as defined below). Onswipe reserves the right to pay Publisher only if the amount owed to Publisher exceed $150 (although Onswipe’s current practice is to pay regardless of the amount owed). If the Parties have entered into a Service Order, (a) Onswipe shall pay to Publisher a fee (“Revenue Share Payment”) equal to a percentage of the Net Advertising Sales Revenue, as identified in the applicable Service Order, collected by Onswipe during the prior calendar month from Advertisements sold and served by Onswipe on the Publisher Site(s) and (b) Publisher shall pay Onswipe an Advertising serving fee, as identified in the applicable Service Order, for all Advertisements sold by or on behalf of Publisher and served by the Onswipe Platform to the Publisher Site(s). Payments required to be made hereunder shall be made by Onswipe or Publisher, as applicable, within 60 days after the end of each calendar month. As used herein: “Net Advertising Sales Revenue” means ninety-five percent (95%) of gross revenue earned hereunder by Onswipe from Advertisers with respect to Advertisements placed on the Publisher Sites under this Agreement net of (a) advertising agency commissions or discounts (where applicable) and any other commissions or charges paid or payable to Advertisers, their representatives or agents, not to exceed fifteen percent (15%) of gross revenue and (b) credit card or other payment processing fees, bad debt, and charge-backs. For sake of clarity, Onswipe shall retain the remaining five percent (5%) of such gross revenue to cover its administrative costs. For purposes of this paragraph, revenue is deemed “earned” from an Advertiser as its order is fulfilled by a Publisher. All pricing charged for Advertising on the Publisher Sites shall be determined by Onswipe at Onswipe’s sole reasonable discretion. All amounts payable hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively “Taxes”). Publisher shall be solely responsible for payment of any Taxes on Net Advertising Sales Revenue, except for those taxes based on the income of Onswipe.
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6. Confidential Information. As used herein, “Confidential Information” means, any and all information, regardless of whether it is in tangible form, disclosed by a Party (the “Disclosing Party”) to the other Party (the “Receiving Party”). All Confidential Information shall be either marked as confidential or proprietary, be identified in writing as confidential or proprietary within thirty (30) days of disclosure, or be reasonably understood by the Receiving Party as the Disclosing Party’s Confidential Information at the time of disclosure. Information shall not be deemed Confidential Information if such information: (i) is known to the Receiving Party prior to receipt from the Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (ii) becomes known (independently of disclosure by the Disclosing Party) to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the Receiving Party; or (iv) is independently developed by the Receiving Party without use of or reference to the Confidential Information. Each Receiving Party shall use reasonable measures to protect the secrecy of, avoid disclosure and unauthorized use or reproduction of the other Party’s Confidential Information during the Term and for a period of three (3) years following termination of this Agreement for any reason. Confidential Information may be disclosed to only (a) such employees and agents of the Parties as may have a need to know such information in the course of their duties; (b) legal or financial advisors of the Parties on a need to know basis; or (c) if required by law or valid order of a court or other governmental authority (provided that the Receiving Party delivers reasonable notice to the Disclosing Party and use commercially reasonable efforts to cooperate with Disclosing Party’s attempt to obtain a protective order). Upon written request of the Disclosing Party, Receiving Party agrees to promptly return to Disclosing Party or destroy all Confidential Information that are in the possession of Receiving Party.
7. Data. As between the parties, Publisher shall own the data Onswipe collects from end users on Publisher’s behalf from Publisher Sites (the “Data”), except that Onswipe may: (a) capture and maintain the Data in connection with its provision of the Platform to Publisher and to provide related reporting to Publisher; (b) compile aggregated statistics including the Data along with data of other Onswipe publishers for internal or marketing use (provided that no such use shall include any information that can identify Publisher, its end users, or its customers); (c) cookie each end user for purposes of enabling anonymous end-user level targeting (provided that no such use shall include any information that can identify Publisher or its end users), provided that each such end user may opt-out from such cookie on Onswipe’s website; (d) disclose any Data if required by law or valid order of a court or other governmental authority (provided that, prior to any such disclosure, Onswipe delivers reasonable notice to Publisher and uses commercially reasonable efforts to cooperate with Publisher’s attempt to obtain a protective order, at Publisher’s sole cost and expense); and (e) use Data for Onswipe’s internal purposes, including to operate, manage, maintain and improve Onswipe’s products and services. On a monthly basis or more frequently if requested by Publisher, and in any event upon termination of this Agreement, Onswipe shall transfer or make available to Publisher all elements of the Data. Onswipe shall not, and shall not permit any Advertiser to resell or otherwise transfer Data to any third party except as otherwise permitted herein.
8. Representations and Warranties; Exclusions. Each Party represents and warrants to the other Party that (a) such Party has the required power and authority to enter into this Agreement and to perform its obligations hereunder, (b) the execution of this Agreement and performance of its obligations thereunder do not and will not violate any other agreement to which it is a party; and (c) this Agreement constitutes a legal, valid and binding obligation when signed by both Parties. Publisher represents and warrants that Publisher has the full legal authority to include all the Publisher Sites (now or hereafter included) in this Agreement. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE ONSWIPE PLATFORM IS PROVIDED ON AN “AS-IS” BASIS AND ONSWIPE DISCLAIMS ANY AND ALL WARRANTIES. PUBLISHER ACKNOWLEDGES THAT ONSWIPE DOES NOT WARRANT THAT THE ONSWIPE PLATFORM WILL BE PROVIDED IN AN UNINTERRUPTED OR ERROR FREE FASHION AT ALL TIMES. WITHOUT LIMITING ANY OF THE FOREGOING, ONSWIPE MAKES NO EXPRESS OR IMPLIED GUARANTEES, REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE CONTENT OF ANY ADS OR ANY REVENUE TO BE GENERATED OR PLACEMENT OF ADS FROM USING THE ONSWIPE PLATFORM HEREUNDER.
9. Publisher Acknowledgements. Onswipe does not provide any warranties or indemnification regarding any Advertisers with which Publisher has an agreement directly (each, a “Publisher Advertiser”) or any of their Ads, products, or services. All issues regarding any (a) Ad delivered to any Publisher Site; (b) Publisher Advertiser technology, product, or service; or (c) interaction between Publisher and a Publisher Advertiser is solely between Publisher and such Publisher Advertiser. Onswipe has been retained by Publisher only in a representative capacity to perform the services described hereunder. Publisher hereby accepts and assumes all responsibility and liability imposed on it pursuant to each agreement it has with a Publisher Advertiser.
10. Indemnification by Onswipe. Onswipe shall indemnify Publisher and its officers, directors, employees, and agents (each, a “Publisher Indemnified Party”) against any and all damages, losses, and liabilities resulting from any third party claim, allegation, or legal action (a “Claim”) arising from or in connection with Onswipe’s infringement or misappropriation of a third party copyright, United States patent, trade secret or trademark by reason of the use of the Onswipe Platform by Publisher as permitted hereunder (except where such infringement or misappropriation relates to an Ad). Further, Onswipe shall defend at its expense each Publisher Indemnified Party against any such Claim, and pay damages actually awarded or paid in connection therewith, including the reasonable attorneys’ fees and expenses. Onswipe’s foregoing obligations to indemnify and defend shall be excused to the extent that Publisher does not: (a) promptly notify Onswipe of such Claim; (b) tender to Onswipe the sole and exclusive authority to defend and/or settle any such Claim; and/or (c) reasonably cooperate with Onswipe in connection with such Claim. In addition, if the use of the Onswipe Platform by Publisher has become, or in Onswipe’s opinion is likely to become, the subject of any claim of infringement, Onswipe may at its option and expense (i) procure for Publisher the right to continue using the Onswipe Platform as set forth hereunder; (ii) replace or modify the Onswipe Platform to make it non-infringing so long as the Onswipe Platform has substantially equivalent functionality; or (iii) if options (i) or (ii) are not reasonably practicable, terminate this Agreement. Onswipe shall have no liability or obligation under this Section 10 with respect to any Claim if such Claim is caused in whole or in part by (x) compliance with designs, data, instructions, or specifications provided by Publisher; (y) modification of the Onswipe Platform by any party other than Onswipe without Onswipe’s express consent; or (z) the combination, operation, or use of the Onswipe Platform with other applications, portions of applications, product(s), data or services where the Onswipe Platform would not by itself be infringing. This Section 10 states Onswipe’s entire obligation and Publisher’s sole remedies in connection with any claim regarding the intellectual property rights of any third party.
11. Indemnification by Publisher. Publisher shall indemnify Onswipe and its officers, directors, employees, and agents (each, an “Onswipe Indemnified Party”) from and against any and all damages, losses, and liabilities from any Claim arising from or in connection with any breach by Publisher of Section 3. Further, Publisher shall defend at its expense each Onswipe Indemnified Party against any such Claim, and pay damages actually awarded or paid in connection therewith, including the reasonable attorneys’ fees and expenses. Publisher’s foregoing obligations to indemnify and defend shall be excused to the extent that Onswipe does not: (a) promptly notify Publisher of such Claim; (b) tender to Publisher the sole and exclusive authority to defend and/or settle any such Claim; and (c) reasonably cooperate with Publisher in connection with such Claim.
12. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST DATA, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF A REPRESENTATIVE OF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR LIABILITY ARISING FROM A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 10 AND/OR 11 ABOVE, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY IN EXCESS OF THE FEES PAID TO PUBLISHER UNDER THIS AGREEMENT FOR THE MOST RECENT TWELVE (12) MONTHS AT THE TIME OF ANY CLAIM. ONSWIPE SHALL NOT HAVE ANY LIABILITY ARISING FROM ANY AGREEMENTS BETWEEN PUBLISHER AND ANY BUYER OR FROM ANY ADVERTISEMENTS. THE PROVISIONS OF THIS SECTION FAIRLY ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY AND REGARDLESS OF THE FORM OF ACTION.
13. Term; Termination. The term of the Agreement shall commence on the Effective Date and continue until terminated pursuant to this Section. Either Party may terminate this Agreement for any reason upon thirty (30) days’ prior written notice to the other Party. Upon termination of this Agreement for any reason, all rights granted hereunder and all obligations of Onswipe to provide Onswipe Services shall immediately terminate. Each party will not be liable to the other party or any third party for termination of this Agreement. Notwithstanding the foregoing, Sections 5, 6, 8, 10, 11, 12, 13, and 14 shall survive termination of this Agreement.
14. General. No provision or part of this Agreement or remedy hereunder may be waived except by a writing signed by a duly authorized representative of the Party making the waiver. Failure or delay by either Party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. Nothing in this Agreement shall be construed to place the Parties hereto in an agency, employment, franchise, joint venture, or partnership relationship. Except as provided herein, neither Party will have the authority to obligate or bind the other in any manner, and nothing herein contained shall give rise or is intended to give rise to any rights of any kind to any third parties. In the event that any provision of this Agreement is found to be unenforceable, such provision will be reformed only to the extent necessary to make it enforceable, and such provision as so reformed will continue in effect, consistent with the intent of the Parties as of the Effective Date. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to its rules of conflict of laws. Each of the Parties hereto hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the State of New York and of the United States of America located in the City and County of New York and the United States District Court for the Southern District of New York for any litigation among the Parties hereto arising out of or relating to this Agreement. Notice shall be deemed given upon receipt via personal delivery, email, delivery by a nationally recognized overnight delivery service (e.g., FedEx), or postage prepaid by certified or registered mail, return receipt requested. Onswipe may give general notices to Publisher by posting on Onswipe’s web site, or by electronic mail to the e-mail address provided by Publisher to Onswipe. It is Publisher’s responsibility to ensure that Publisher’s e-mail address and any other contact information Publisher provides to Onswipe is updated, current and correct. Notices to Onswipe must be sent in addition to: Chief Operating Officer, Onswipe, 39 West 14th Street, Suite 205, New York, NY 10011. Neither Party may assign this Agreement, or sublicense any of the rights granted herein, in whole or in part, without the prior written consent of the non-assigning Party, which consent will not be unreasonably withheld by the non-assigning Party. Notwithstanding the foregoing, either Party may assign this Agreement without such consent to any person or entity controlling, controlled by, or controlled in conjunction with such Party or that acquires all or substantially all of the assets and business of the assigning Party by merger or purchase, provided that such person or entity assumes in writing all of the terms and conditions of this Agreement. Any attempt by either Party to assign or transfer any of the rights, duties or obligations of this Agreement in violation of the foregoing shall be void. This Agreement (which consists of the Service Order and these Terms) constitutes the entire agreement between the Parties with respect to Publisher’s use of the Onswipe Platform. It supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter, and prevails over any conflicting terms or conditions contained on printed forms submitted with purchase orders, credit applications, sales acknowledgments or quotations. Neither Party shall be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control, including, without limitation, earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared) or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree (each a “Force Majeure Event”).
This document was last updated on July 4, 2011.