Publisher Terms & Conditions

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

1. General

  1. By clicking ‘I Agree’ below, you acknowledge that you (herein referred to as “Publisher” or “you”) have read, understood, and agree to be bound to the Terms of Service below (the “Agreement”) between Publisher and of RhythmOne, LLC  (d/b/a Unruly) (“Unruly” or “we”).
  2. You also acknowledge and agree that: (i) you have read the Privacy Policy regarding Unruly’s collection and use of you and your end users’ information when using this service; and (ii) Unruly makes no warranties (express or implied), guarantees or conditions with respect to your use of this service, and we provide access to this service on an “as is” basis “with all faults” and “as available.”
  3. You also acknowledge and agree that, from time to time, Unruly may change, remove, or add to this Agreement, and reserves the right to do so in its discretion. Immaterial changes will be posted to the updated Terms of Service and will indicated the date of revision. In the case of material substantive changes, we will provide notice to you [via an email] (except (1) when we launch a new service or feature, or (2) in urgent situations, such as preventing ongoing abuse or responding to legal requirements) and post updated Terms of Service and indicate the date of revision. All new and/or revised Terms of Service shall take effect immediately and apply from that date on. Your continued use of our services after new and/or revised Terms of Service are effective indicates that you have read, understood, and agreed to those revised Terms of Service.  Should you disagree with the modifications you may discontinue use of the Service.

2. Publisher Obligations and Requirements

  1. In order to become and remain a Publisher within the publisher network of Unruly, your websites, mobile properties, and applications where you have posted your unique Unruly source code, including all web pages within those domains regardless of whether that particular page hosts Unruly’s source code or not, (collectively, “Publisher Properties”) must contain specialty content that is: (a) current; (b) regularly updated; and (c) resides on a top-level domain, and does not include portals, search engines, and sites of links to any third party’s content.  You agree not to alter, translate or create derivative works of Unruly’s source code in any way without the prior written permission of Unruly. All Publisher Properties are subject to the review and approval of Unruly.
  2. In addition, Publisher Properties must not: (i) violate any applicable law, rule, or regulation including but not limited to any Data Protection Law; (ii) promote violence, the use of firearms, gambling, online casinos, tobacco, alcohol, or unlawful subject matter or activities (e.g. discrimination of protected classes, hate crimes, P2P sites, or copyright protection circumvention sites, etc.); (iii) violate any intellectual property right or other proprietary or privacy right of any third party; (iv) be defamatory, libelous, abusive, harassing, offensive, deceptive, obscene, pornographic or sexually explicit; (v) contain, link to, use or otherwise causes the downloading of any malicious code; (vi) engage in deceptive, incentivized, mechanical, computerized or any other behavior or artificial means of increasing the number of users, impressions, page views, click-throughs or any other measure of your traffic (collectively subsection (vi), “Deceptive Activities”); (vii) allow advertising on any sites or pages for which you are not directly responsible or any sites that have not been reviewed and approved by Unruly; (viii)allow timed rotation or auto refresh of advertising; or (ix) contain unmoderated user-submitted content that do not comply with the UGC Guidelines below.
  3. Publisher shall, at its own cost and expense, integrate Unruly and/or its affiliate’s advertising technology platform and out-stream media player (collectively, the “Unruly Platform”) according to Unruly-provided specifications and generally accepted industry standards.  Unruly hereby grants to Publisher a limited, non-exclusive, non-transferable, and revocable license to use the Unruly Platform during the Term.  Publisher may not use any other media player or technology other than the Unruly Platform to display out-stream advertising provided by Unruly unless approved by Unruly in advance in writing.
  4. Publisher is solely responsible for providing, at its own expense, content, development, marketing and technical support for the Publisher Properties or Publisher content, except with respect to advertising. Publisher is solely responsible for all editorial aspects of the Publisher Properties, and Unruly has no obligation to review or control any aspects of the Publisher Properties.
  5. Publisher shall maintain the Publisher Properties to meet, at a minimum, the terms contained herein and commercially prevalent industry standards.  Publisher acknowledges that Unruly has no responsibility to review the content of the Publisher Properties.  Publisher shall ensure that the Publisher Properties shall be of a quality and design that allows Unruly the opportunity to maximize its representation of the Publisher Properties.
  6. With respect to any advertising served via header bidding, Publisher agrees to (1) integrate the Unruly header bidding tag into Publisher Properties so that Unruly may participate in Publisher auctions, and (2) be responsible for conducting an auction in respect of Publisher Properties.
  7. Publisher will provide Unruly with prior written notice regarding any new website domain sources for which you will be providing traffic.  Your internal quality control team shall screen such new website domain sources to determine whether the same are clean and shall provide their written determination to Unruly if any content on the Publisher Properties is found not to be clean.
  8. UGC Guidelines. Publisher represents and warrants that:
    1. it requires end users of Publisher Properties to agree to binding terms of use that require such end users to represent and warrant that they have all necessary rights and licenses to submit and to broadcast all user-submitted content;
    2. it operates the Publisher Properties in accordance with applicable copyright and other law related to intellectual property rights, including by establishing and maintaining, in accordance with such law, applicable notice and takedown procedures for allegedly infringing content sufficient to afford Publisher Properties the benefit of any applicable “safe harbors” (e.g., the DMCA Safe Harbor provision established under 17 U.S.C. §512); and
    3. user-generated content on Publisher Properties is subject to a take-down policy, which includes a system for reporting abuse that effectively removes any user-generated content that does not comply with Publisher’s policies, including those related to Prohibited Content.  Publisher shall review any notification from Unruly or Unruly’s advertisers about Advertising placed in violation of this Section, and immediately remove user-generated content that Publisher, in its reasonable discretion, determines is objectionable or in violation of Publisher’s policies. Furthermore, Publisher agrees that it shall remove or block abusive users of Publisher Properties.  Unruly or Unruly’s advertisers will be entitled to receive a credit, refund, or makegood (as determined by Unruly) from Publisher for the Advertising placed in violation of this Section.

3. No Revenue or Sell Rate Guarantee.

  1. Unruly does not guarantee any specific percentage of paid advertising to a website or any inventory, sell rate. You acknowledge and agree that not all advertisement opportunities will be filled with a paid advertisement impression from us, and therefore, there is no guarantee that there will be revenue generated for every advertisement opportunity provided by you. “Default Impressions” means impressions served when no paid advertising is available, and they are a by-product of our business. Publishers may choose to redirect all or a portion of their Default Impressions at no additional charge. If a Publisher does not specify a default redirect, Unruly reserves the right to utilize these Default Impressions for its sole benefit without compensation to the Publisher. Such uses may include, but are not limited to, running opt-in visitor surveys, collecting user data, promoting Unruly products and services, running test campaigns, running public service announcements, and/or running “make good” campaigns (make good campaigns are unpaid advertisements that are run to make-up for the occasional discrepancies that occur during the normal course of business).

4.Google OB.

  1. If you are utilizing Google’s Exchange Bidding Platform (“Google OB Platform”), Unruly hereby agrees to make advertising materials available to you via Google’s EB Platform and you hereby agree to make supply inventory available to Unruly via Google’s EB Platform.   Subject to any earlier termination in accordance with this Agreement, this Agreement shall remain in full force and effect while both Unruly and Publisher each continue to be a party to an agreement with Google in respect of its use the Google OB Platform.

5. Rates and Revenue Share

  1. For all advertising sold by Unruly on the Publisher Properties (except if you are utilizing the Google OB Platform and in accordance with subsection (e) below), Unruly shall pay Publisher either: (a) the Revenue Share Rate of the Net Advertising Revenues we receive from its advertising clients for Paid Ad Impressions (as calculated by Unruly); or (b) the Bid Price if such Bid Price is selected as the winning bid by Publisher’s auction interface, as applicable.  “Net Advertising Revenue” refers to the amount equal to all revenue generated in connection with the sale of advertising on the Publisher Properties less any ad agency, data, creative service, rich media or other fees. “Paid Ad Impression” means an ad impression (as counted by Unruly) that is not a (i) house, (ii) passback, or (iii) default ad, and for which Unruly would be entitled to receive compensation. “Bid Price” refers to the amount Unruly is willing to pay for the display of certain advertising on Publisher Properties. Unruly’s adjustments to the amount payable to you could include, but shall not be limited to, costs associated with credit card fraud, advertising clawbacks or failure to pay, suspicious impressions, origin and quality of the traffic (including, but not limited to, mismatch in IP address), and accuracy and completeness of information required for campaign tracking.  If any traffic relating to Publisher Properties is found to be invalid, purchased, misrepresentative, suspicious, or otherwise invalid in nature, Unruly reserves the right to withhold any or all revenues (including any Bid Price) due to you notwithstanding any contract term, course of dealing or understanding to the contrary.  If adjustments occur, then you will not be guaranteed the revenue share.
  2. Unruly will determine all advertising rates, including any Bid Prices, and may change the rates and/or Bid Prices without notice. You are free to set advertising rates for any advertising inventory sold by you.
  3. Revenue Share Rate of Net Advertising Revenue (if applicable): 70%.  Revenue Share Rate shall not apply to any advertising sold via header bidding.  In the case of header bidding, Unruly does not guarantee any minimum revenue share to Publisher.
  4. If you are utilizing the Google OB Platform, your earnings calculation shall be in accordance with your separate agreement with Google.
  5. For all advertising sold through a private marketplace (“PMP”) initiated either by you or Unruly, the applicable technology fee (as mutually agreed to by you and Unruly) and any mutually agreed data fee(s) for data utilized in such PMP shall be deducted from the monthly Gross Advertising Revenue generated in connection with such sale.  “Gross Advertising Revenue” refers to amount equal to all revenue generated in connection with the sale of advertising on the Publisher Properties.

You acknowledge and agree that rate information is proprietary and confidential information to Unruly and may not be disclosed to any other advertisers or third parties.

6. Billing and Payment

  1. Unruly will handle all accounting arrangements and provide you with an online summary of the activity on your unique Unruly source code.
  2. Unruly pays publishers on the last day of each month elected via electronic payment for all campaigns that ended at least 90 days earlier based on revenue reported and received by Unruly.  Unruly shall only be, and Publisher shall only hold Unruly, liable for payments to the extent that Unruly has received the corresponding payments from Unruly’s clients and/or such payment is undisputed.  If a Unruly client requires a refund or imposes a deduction after Unruly has already made payment or after the Agreement has expired or terminated, you shall promptly reimburse Unruly for any such refund or deduction.

You will be paid for all campaigns unless you have earned less than the minimum payment threshold of $500. Your balance will carry forward until you have a balance greater than such minimum payment threshold. Unruly reserves the right to terminate this Agreement if your account goes unpaid due to a failure to exceed the minimum payment threshold during any 6 months period. Payment shall be made in U.S. Dollars by ACH transfer to a bank account designated by you, subject to the following additional conditions for international payments: (a) all international payment shall be made through Payoneer and require a minimum account balance of $1,000.

  1. Payments under $5.00 for an inactive account will not be made and are permanently forfeited.
  2. UNRULY WILL NOT MAKE ANY PAYMENTS TO YOU UNTIL WE HAVE RECEIVED YOUR AGREEMENT TO THESE TERMS OF SERVICE VIA ACCEPTANCE BELOW AND ALL DOCUMENTS AND INFORMATION REASONABLY REQUIRED BY OUR FINANCE DEPARTMENT TO PROCESS SUCH PAYMENTS (WHICH INCLUDES BUT IS NOT LIMITED TO A FORM W8/W9 (AS APPLICABLE) AND BANK DETAILS TO WHICH THE BENEFICIARY NAME IS THE PUBLISHER.
  3. Paid Ad Impressions will be calculated based on traffic audits from Unruly’s central server. Unruly traffic audits will be the sole source of audience traffic measurement for billing purposes. Some ads may be shown by a third-party server. In that case Unruly may need to rely on the third-party server’s traffic audits as the sole source of audience traffic measurement for billing purposes.
  4. If, in its reasonable judgment, Unruly concludes that there has been Deceptive Activities Unruly may, without limiting any other remedy herein, terminate this Agreement and seize all of your earnings hereunder, whether they have been paid out to you or not.
  5. If you are utilizing Google’s EB Platform, you hereby acknowledge and certify that you have entered into and is a party to a separate agreement with Google governing your access to and usage of Google’s EB Platform.  You shall abide by the terms and conditions set out in your separate agreement with Google. You acknowledge and agree that all payment and fees due to you under this Agreement will be made through Google’s EB Platform.

7. UnrulyX CTRL (formerly Unruly Partner Hub)

  1. Upon your agreement to these Terms of Service, you will be given a password which allows you to access the information on the UnrulyX CTRL platform (“CTRL”). You are responsible for the security of your Hub password and are responsible for any actions taken by anyone using your password.
  2. Unruly will provide you with source code that will display advertising from Unruly’s server on your web page(s). You shall load the code as prescribed on the Hub and shall not alter it without Unruly’s consent. By running our source code, you agree to abide by the terms and conditions set forth in this Agreement and on the Hub.

8. License Grant and Data Ownership

  1. You hereby grant Unruly the right to sell and have sold advertising on the Publisher Properties, to insert such advertising during the Term (hereinafter defined), including the right access or call to the Publisher Properties or the servers that make them available and to cause the routing, transmission, reproduction, and display of advertising as contemplated herein, and to collect data and information with regard to visitors and Publisher Properties.  Furthermore, you hereby grant Unruly the right to list such advertising in pitch materials to prospective advertisers, to report such advertising as being part of Unruly’s advertising network, and to use your trademarks and logos and images of the Publisher Properties in connection with exercising the foregoing right.
  2. Unruly owns all right, title, and interest in and to its technology, software and products, including the Unruly Platform and all associated intellectual property rights. All data collected by Unruly or advertisers through the Unruly technology or otherwise from Publisher Properties, including, but not limited to, cookies and beacon data, metadata, usage data, geo-location data, analytics, visitor data, and streaming data will be the property of Unruly or the advertiser, as the case may be. You hereby acknowledge that all information, graphics, and infrastructure provided by Unruly are the sole property of Unruly and may not be used without its prior written consent.Furthermore, Unruly retains all right, title, and interest in and to any materials created, developed, or provided by Unruly in connection with this Agreement, including all intellectual property rights related to each of the foregoing.

9. Data Protection

  1. Definitions:
    1. Data Protection Law” means any and all applicable privacy and data protection laws (including but not limited to, where applicable, EU Data Protection Law and the California Consumer Privacy Act of 2018) as may be amended or superseded from time to time.
    2. (b) “EU Data Protection Law” means (i) the EU General Data Protection Regulation (Regulation 2016/679); (ii) the EU e-Privacy Directive (Directive 2002/58/EC); (iii) EU Network and Information Systems Directive (Directive (EU) 2016/1148); and (iv) any national data protection laws made under or pursuant to (i), (ii) or (iii).
    3. In this Section, the expressions “controller“, “processor“, “personal data“, “processing” (and “process“) shall have the meanings given in Data Protection Law.
  2. Data Protection.
    1. The parties acknowledge that Publisher may disclose or make available certain data about visitors to the Publisher Properties (which may include personal data) (“Data“) to Unruly, and that Unruly and demand-side partners use cookies and similar tracking technologies (such as mobile device identifiers and digital fingerprinting) to provide their services (“Cookies“).Publisher therefore shall ensure that legally sufficient consent mechanisms as may be required by Data Protection Law are displayed upon Publisher Properties from which the Data are collected or made available so that Unruly can serve Cookies lawfully through such Publisher Properties in order to provide its services under this Agreement.  Upon request, Unruly shall provide Publisher with such information as Publisher may reasonably require about Unruly’s Cookies so that Publisher can ensure that such notice is provided.
    2. Publisher is a controller of the Data it discloses or makes available to Unruly, and Unruly will process the Data as a separate and independent controller for the Permitted Purpose.  In no event will the parties process the Data jointly as joint controllers.  For the avoidance of doubt, neither party is a processor of the other.
    3. Each Party shall be individually and separately responsible for complying with the obligations that apply to it as a controller under Data Protection Law.  Without limitation to the foregoing, each Party shall maintain a publicly-accessible privacy policy on its website that satisfies the transparency disclosure requirements of Data Protection Law.
    4. Publisher shall provide legally sufficient notice with respect to the collection of Data.  In particular, Publisher Properties will have a prominent link to an accurate and legally sufficient privacy policy that:
      1. complies with all applicable laws, rules, and regulations, including the GDPR, the Privacy and Electronic Communications Directive 2002/58/EC (the “ePrivacy Directive”), the California Consumer Privacy Act (and any supplemental legislation to the foregoing); and
      2. accurately discloses all applicable data collection, use and disclosure practices, including the use of cookies, pixels, beacons, locally stored objects, or other similar technologies by third parties for purposes of targeting individual end users with advertisements and performing related measurement, analytics and data linkage, as well as a conspicuous link to and description of a functional opt-out page,
      3. such aforementioned opt-out page shall include the Network Advertising Initiative’s opt-out page, accessible at http://www.networkadvertising.org, and/or the Digital Advertising Alliance’s opt-out page, accessible at http://www.youradchoices.com/, and where European Ad Impressions are facilitated, the European Interactive Digital Advertising Alliance’s opt-out page, accessible at http://www.youronlinechoices.eu/.
    5. Where Publisher provides precise location information to Unruly, Publisher shall ensure that that it has obtained provided “just in time” notice (for instance, a privacy screen) and affirmative consent by the device user, with respect to use and sharing of device and location information for purposes of advertising, analytics and attribution.
    6. Publisher hereby acknowledges that information, graphics, and infrastructure provided by Unruly are the sole property of Unruly and may not be used without its prior written consent.
    7. Publisher must inform Unruly (and keep Unruly informed), including through use of an RTB “COPPA = 1” flag, if any Publisher Properties are directed towards children under the age of 13, and shall likewise inform Unruly if any Publisher Properties are directed towards children under the age of 16. In such event, Publisher acknowledges that Unruly may elect not to sell Advertising on such child-directed Publisher Properties.
    8. This Section shall survive termination or expiry of this Agreement.  Upon termination or expiry of this Agreement each Party may continue to process the Data under its control provided that such processing complies with the requirements of this Section and Data Protection Law.

10. Term and Termination.

  1. This Agreement shall be effective as of the date you agreed to the Terms of Service and shall remain in place for an initial term of 1 year (the “Initial Term”). At the end of Initial Term, this Agreement shall automatically renew for consecutive 12-month periods unless terminated by either party with at least 90 days’ written notice prior to renewal (each, a “Renewal Term”). The Initial Term and any Renewal Term(s) are collectively referred to as the “Term”.
  2. You may terminate this Agreement by written notice to [email protected].  Unruly may terminate this Agreement by written notice to your email as shown on our records.
  3. Unruly reserves the right at any time, in its sole and absolute discretion, to terminate this Agreement, or in lieu of terminating this Agreement, to suspend the marketing of and placement of advertising for you.
  4. Upon termination of this Agreement, all undisputed amounts due to any party (prior to termination) shall be paid in accordance with this Agreement.

11. Representations and Warranties. 

  1. Publisher hereby represents and warrants that: (a) it has the full corporate right, power and authority to enter into this Agreement and to perform the acts required of it under this Agreement; (b) its execution of this Agreement and performance of its obligations under this Agreement do not and will not violate any other agreement to which it is a party; (c) this Agreement will constitute the legal, valid and binding obligation of such party when executed and delivered; (d) any and all activities it undertakes in connection with this Agreement will be performed in compliance with all applicable laws, rules and regulations,as well as industry self-regulatory principles,   including the Digital Advertising Alliance’s (“DAA”) Self-Regulatory Principles for Online Behavioral Advertising, and the Self-Regulatory Code of Conduct and Principles of the Network Advertising Initiative (“NAI”); (e) if any of the Publisher Properties are accessible in the EEA, Publisher will ensure that it, and all of its publisher partners, is registered with the IAB Europe Transparency & Consent Framework and comply with the IAB Europe EU Framework for Online Behavioural Advertising and the European Interactive Digital Advertising Alliance’s (“eDAA”) Self-Regulatory Principles; (f) the Publisher Properties and their contents and any other intellectual property rights used by you do not require the consent of any other entity for you to use them in connection with its obligations under this Agreement; (g) the Publisher Properties and their contents are owned exclusively by you, free and clear of any attachments, liens, encumbrances, or adverse claims; (h) your present or contemplated activities, products, or services do not infringe, misappropriate, dilute, impair, or constitute unfair competition with respect to any third party’s intellectual property rights; (i) all content, products, and services on Publisher Properties are legal to distribute and that you own or have the legal right to use them; (j) use of the Publisher Properties by Unruly or any of Unruly’s advertisers will not infringe any third party’s rights, including any intellectual property rights; and (k) the Publisher Properties do not and will not contain any content which violates any applicable law or regulations.

12. Indemnification

  1. Publisher hereby agrees to indemnify, defend, and hold harmless Unruly and its officers, directors, members, managers, agents, parent, subsidiaries, affiliates, customers, and employees from and against all third party claims, actions, liabilities, losses, expenses, damages, and costs (including, without limitation, reasonable attorneys’ fees) that may at any time be incurred by any of them by reason of any claims, suits or proceedings: (a) for libel, defamation, violation of infringement of any third party’s intellectual property rights in connection with the Publisher Properties (except for advertisements supplied by Unruly); (b) relating to a contaminated file, virus, worm, or Trojan horse originating from the Publisher Properties (other than through advertisements supplied by Unruly); (c) arising out of any claim regarding invalid traffic, click fraud or misrepresentative traffic originating from Publisher Properties; and/or (d) breach of this Agreement.
  2. Unruly will not be subject to any liability whatsoever for: (a) any failure to provide reference or access to all or any part of the Unruly Platform or websites due to systems failures or other technological failures of Unruly or of the Internet; (b) delays in delivery and/or non-delivery of advertisements, including, without limitation, difficulties with a customer or creative, difficulties with a third-party server, or electronic malfunction; and (c) errors in content or omissions in any advertising.

13. Disclaimers, Exclusions and Limitations

  1. Disclaimer of Warranty. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, UNRULY DOES NOT MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, AND EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR PERFORMANCE. THE SERVICES PROVIDED BY UNRULY ARE PROVIDED ON AN “AS-IS, AS AVAILABLE” BASIS.  UNRULY AND ITS SUPPLIERS, LICENSORS, AND PARTNERS DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE UNRULY PLATFORM WILL BE CORRECT, UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE UNRULY PLATFORM OR THE SERVERS THAT MAKE IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, UNRULY MAKES NO GUARANTEE REGARDING THE NUMBER, QUALITY, OR CONTENT OF ANY ADVERTISEMENTS OR THE TIMING OF DELIVERY OF SUCH ADVERTISEMENTS. UNRULY RESERVES THE RIGHT AT ALL TIMES, AT ITS DISCRETION, AND WITHOUT NOTICE, TO REMOVE OR REFUSE TO DISTRIBUTE ANY UNRULY ADVERTISEMENTS. UNRULY DOES NOT WARRANT THE RESULTS OF USE OF THE UNRULY PLATFORM.  YOU ACKNOWLEDGE THAT UNRULY MAY MODIFY OR SUSPEND ITS SERVICES AND THE UNRULY PLATFORM AT ANY TIME IN ITS SOLE DISCRETION AND WITHOUT NOTICE.
  2. Limitation of Liability. UNDER NO CIRCUMSTANCES WILL UNRULY BE LIABLE TO YOU WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING FROM ANY PROVISION OF THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE. IN NO EVENT SHALL UNRULY’S AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT EXCEED THE LESSOR OF (i) FIFTY THOUSAND DOLLARS ($50,000) OR (ii) AMOUNT OF FEES ACTUALLY PAID BY UNRULY TO YOU DURING THE 6 MONTH PERIOD PRIOR TO THE TIME SUCH LIABILITY AROSE UNDER THIS AGREEMENT.

14. Governing Law and Venue. 

  1. This Agreement shall be governed by the laws of the State of New York.  You hereby irrevocably submit to the nonexclusive jurisdiction of any Washington state or federal court sitting in New York City, New York in any action or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby and waive, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding.

15. Assignment; Successors and Assigns. 

  1. This Agreement shall be binding on the undersigned, its successors and assigns. This Agreement may not be assigned or subcontracted by either party without the prior written consent of the other party (not to be unreasonably withheld or delayed), provided that Unruly may assign or subcontract this Agreement without Publisher’s consent to a parent, subsidiary, affiliate, or to any entity that acquires Unruly or all or substantially all of its stock or assets.

16. Setoff.

  1. In the event Unruly is due any sums under this Agreement or for any other services provided by Unruly, Unruly may set off such amounts from your earnings.

17. Confidential Information.

  1. You acknowledge that you may be exposed to proprietary or Confidential Information of Unruly, including without limitation information concerning: products and services and the pricing for same and any royalty or fee arrangements; customers, prospective customers, suppliers or employees; business methods, procedures and techniques, technology; marketing information or plans; trade secrets; or commercially sensitive information.  “Confidential Information” means all written or oral information disclosed by Unruly to you that has been identified as confidential or that by its nature ought reasonably to be considered confidential.
    1. You agree: (a) not to disclose the Confidential Information to anyone except your employees, contractors, and advisors on a strict need to know basis and subject to confidentiality obligations at least as strict as herein; (b) to use the Confidential Information strictly for the performance or receipt of this Agreement; and (c) to use all commercially reasonable endeavors to protect the confidentiality of the Confidential Information, which as a minimum will include applying the same care that it applies to protect its own similar information, but in no event less than reasonable care.
    2. the obligations of confidentiality under this Agreement shall not apply to any information that: (a) has entered the public domain except where such entry is the result of your breach of this Agreement; (b) is obtained by you on a non-confidential basis from a third   party   who  has   the   right  to   disclose   such information; or (c) was developed by you without use of the Confidential Information.
    3. You may disclose Confidential Information to the extent required to comply with a court or governmental order, or with applicable law; provided that, to the extent permitted by applicable law, you give reasonable notice to Unruly to contest such order or requirement.
    4. You agree that any actual or threatened breach of this Section will constitute immediate, irreparable harm to Unruly for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach.

18. Independent Contractor Relationship 

  1. The parties are independent contractors, and no agency, partnership, or other form of joint venture or employment relationship is intended or created by this Agreement.

19. Severability. 

  1. In the event any provision or part provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted.

20. No Waiver.

  1. In no event shall failure or delay on the part of either party in enforcing any provision, right or remedy provided in this Agreement be or be deemed to be a waiver of any subsequent breach of the same or any other provision of this Agreement.

21. Survival.

  1. Any terms of this Agreement that expressly survive termination or expiration, or by their nature ought to survive termination or expiration, will survive, including but not limited to provisions regarding confidentiality, disclaimers, exclusions and limitation of liability, indemnification, effect of termination, controlling law and jurisdiction, notices and other provisions of interpretation and enforcement.

22. Entire Agreement and Amendments. 

  1. This Agreement with all exhibits hereto constitutes the entire understanding between the parties with respect to the subject matter of this Agreement and supersedes any previous or contemporaneous oral or written arrangements, representations or understandings relating to the subject matter of this Agreement.  Except as set forth herein, this Agreement may not be amended, terminated, or waived orally.  From time to time, Unruly may change, remove, or add to this Agreement, and reserves the right to do so in its discretion. In that case, we will post updated Terms of Service and indicate the date of revision. All new and/or revised Terms of Service shall take effect immediately and apply from that date on. Your continued use of our services after new and/or revised Terms of Service are effective indicates that you have read, understood, and agreed to those revised Terms of Service.  Any amendment hereof by Publisher must be in writing and signed by Unruly.

23. Force Majeure

  1. A delay by either Party in performing its obligations will not be a breach of this Agreement if caused by pandemic, fire, flood or other event beyond the reasonable control of such Party. The affected Party will notify the other Party of such event and resume performance as soon as possible.

24. Notices.–

  1. Other than notices provided pursuant to Section 1(c) and 10(b) above, all notices , consents and approvals to Publisher shall be delivered in writing to the most recent address in Unruly’s file for the Publisher.  All notices , consents and approvals to Unruly musht be delivered in writing to the address set out below and to the attention of the Legal Department at [email protected]  Each such notice, other than notice provided pursuant to 1C, will be deemed given or made as follows:  (i) if sent by hand delivery or overnight courier, upon delivery; (ii) if sent by mail, upon the earlier of the date of receipt or 3 days after deposit in the U.S. mail, first class and postage prepaid; (iii) if sent by telecopy, upon receipt; and (iv) if sent by electronic mail, upon the next business day following such electronic mail transmission provided no “undeliverable” notice is received.  Publisher agrees and acknowledges that it is responsible for ensuring Unruly has accurate and current information for purposes of providing notice, including its address.

LAST UPDATE AS OF January 27, 2021