ZestADZ | Mobile Advertising Platform - India's first & largest mobile advertising market place

PUBLISHER AGREEMENT

PLEASE READ THIS PUBLISHER AGREEMENT ("AGREEMENT") CAREFULLY BEFORE USING THE SERVICES OFFERED BY MOBILE-WORX, INC. ("M-W"). BY CLICKING THE "SUBMIT" BOX, YOU AGREE TO TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK ON THE "CANCEL" BUTTON.
This agreement may be amended at any time by the Company without specific notice to you. The latest Agreement will be posted on the Site and you should review this Agreement prior to each use of the Site

DESCRIPTION OF SERVICES; STATEMENT OF INTENDED USE
M-W operates a mobile advertising network – zestadz.com that allows advertisers to deliver advertisements to a base of wireless subscribers. By registering, the PUBLISHER or the organization and its representatives will become users ("Members") of the ZestADZ. .

PUBLISHER wishes to monetize its products or services using ZestADZ – mobile advertising platform. M-W the company that manages ZestADZ will provide advertising (ad) inventory to PUBLISHER through ZestADZ.

The following summarizes the terms and conditions of the agreement between M-W and Publisher.

1. LICENCE
PUBLISHER, in consideration of M-W obligations hereunder, grants to M-W a non-exclusive right to display text, banner or other forms of mobile advertisements within the applications, games, WAP sites or other form of mobile real estate.
The advertisements displayed will generate revenues either on a Cost-per-Mille (CPM - 1,000 impressions) or a Cost-Per-Click basis (CPC) or Cost Per Action (CPA) basis. The publisher will market or distribute the products (and promote the Products including the Intellectual Property Rights therein) to End-Users.

This Agreement will be in effect on the Commencement Date and shall continue in force for one year from the Commencement Date and shall thereafter be automatically renewed for successive periods of one year, unless and until terminated by not less three (3) months’ notice in writing.

2. INTELLECTUAL PROPERTY RIGHTS
PUBLISHER is the owner or license of all Intellectual Property Rights (IPR) forming part of the Products and Documentation (including the Marks).

M-W will own the IPR of the ZestADZ’s ad serving technology including sample source code used to embed advertisement, API provided to access code, the code change that is done within the mobile applications automatically using the ad-wrap tool and all other API that is linked directly to ZestADZ.com

No Reverse Engineering Allowed: Publisher will not modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from any ZestADZ services, software, or documentation, or create or attempt to create a substitute or similar service or product through use of or access to the Program or proprietary information related thereto

The PUBLISHER is bound by

Neither this Agreement nor any license granted hereafter should be construed to convey or transfer any ownership or proprietary interest in any Intellectual Property Rights in the Products, Documentation or the Trademarks to M-W or any third party.

M-W agrees that:

The Products and Documentation are the valuable property of PUBLISHER and shall be treated as confidential as described under Clause 9.

M-W undertakes throughout the Term:

To notify PUBLISHER of any claim by any third party received by M-W that the Products infringe any Intellectual Property Rights of any third party;
To take such reasonable action as PUBLISHER may direct at the expense of PUBLISHER in relation to such infringement; and
Not to use any name or mark similar to or capable of being confused with the Trademarks nor modify any of the Marks in any way nor use the Marks or any derivation of them otherwise than is permitted by this Agreement;

3. NO GUARANTEE
ZestADZ makes no guarantee regarding the level of impressions of Ads or clicks on any Ad or Referral Button, the timing of delivery of such impressions and/or clicks, the completion of Referral Events, or the amount of any payment to be made to Publisher under this Agreement. Publisher agrees that M-W will make best efforts to monetize its traffic but does not make any implicit commitments in this regard.

4. INFORMATION RIGHTS
ZestADZ may retain and use, subject to the terms of the ZestADZ Privacy Policy (located at http://www.ZestADZ.com/privacy.html , or such other URL as ZestADZ may provide from time to time), all information Publisher provides, including but not limited to Site demographics and contact and billing information. Publisher agrees that ZestADZ may transfer and disclose to third parties personally identifiable information about Publisher for the purpose of approving and enabling Publisher’s participation in the Program, including to third parties that reside in jurisdictions with less restrictive data laws than Publisher’s own. ZestADZ may also provide information in response to valid legal process, such as subpoenas, search warrants and court orders, or to establish or exercise its legal rights or defend against legal claims. ZestADZ disclaims all responsibility, and will not be liable to Publisher, however, for any disclosure of that information by any such third party. ZestADZ may share non-personally-identifiable information about Publisher, including Site URLs, Site-specific statistics and similar information collected by ZestADZ, with advertisers, business partners, sponsors, and other third parties.

In addition, Publisher grants ZestADZ the right to access, index and cache Publisher’s WAP Site(s), or any portion thereof, including by automated means including Web spiders or crawlers.

5. PUBLICITY
Publisher agree that ZestADZ may use Publisher’s name and logo in presentations, marketing materials, customer lists, financial reports, Web site listings of customers, Search Results Pages, and Referral Pages. If Publisher wishes to use ZestADZ's trade names, trademarks, service marks, logos, domain names, and other distinctive brand features ("Brand Features"), Publisher may do so, so long as such use is in compliance with this Agreement and in compliance with ZestADZ's then current Brand Feature use guidelines.

6. GENERAL
Neither party shall: -

Describe itselves as agent or representative of the other except as expressly authorized by this Agreement;

Hold itself out, or permit any person to hold it out, as being authorized to bind the other in any way nor do any act which might reasonably create the impression that it is so authorised except as expressly authorised by this Agreement; or pledge the credit of the other in any way.

7. PAYMENTS
The PUBLISHER shall receive a payment related to the number of valid clicks on Ads, valid impressions of Ads, in each case as determined by ZestADZ otherwise agreed to by the parties in writing (including by electronic mail), payments to Publisher shall be sent by ZestADZ within approximately thirty (30) days after the billing period. This is called Payment realization. Payment realization requires an earned value of $25 or more. In the event the Agreement is terminated, ZestADZ shall pay Publisher earned balance to Publisher within approximately ninety (90) days.

Notwithstanding the foregoing, ZestADZ shall not be liable for any payment based on any amounts which result from invalid queries,or invalid clicks or impressions on Ads generated by any person, bot, automated program or similar device, as reasonably determined by ZestADZ, including without limitation through any clicks or impressions originating from Publisher’s IP addresses or computers under Publisher’s control, solicitations for payment of money, false representation, or request for end users to click on Ads, or solicited by payment of money, false representation, or any illegal or otherwise invalid request for Ads benefiting charitable organizations and other placeholder or transparent Ads that ZestADZ may deliver; ZestADZ advertisements for its own products and/or services or clicks co-mingled with a significant number of invalid clicks, or as a result of any breach of this Agreement by Publisher for any applicable pay period.

ZestADZ reserves the right to withhold payment or charge back Publisher’s account due to any of the foregoing or any breach of this Agreement by Publisher, pending ZestADZ's reasonable investigation of any of the foregoing or any breach of this Agreement by Publisher, or in the event that an advertiser whose Ads are displayed in connection with Publisher’s Site(s) defaults on payment for such Ads to ZestADZ. In addition, if Publisher agrees to pay all applicable taxes, or charges imposed by any government entity in connection with Publisher’s participation in the Program. ZestADZ may change its pricing and/or payment structure at any time. If Publisher disputes any payment made under the Program, Publisher must notify ZestADZ in writing within thirty (30) days of any such payment; failure to so notify ZestADZ shall result in the waiver by Publisher of any claim relating to any such disputed payment. Payment shall be calculated solely based on records maintained by ZestADZ. No other measurements or statistics of any kind shall be accepted by ZestADZ or have any effect under this Agreement. The payments made under this Agreement are for use by Publisher only and may not be transferred or in any manner passed on to any third party (i.e., distributed to Sites managed by Publisher that requires separate payments) unless expressly authorized in writing by ZestADZ (including by electronic mail).

8. PRICE
Revenue Determination. M-W shall pay PUBLISHER the Revenue as set in Schedule 2 with respect to the advertisements displayed on the product or the mobile channel in which the advertisement was displayed.
Payments and Revenue Reports

Payment:30 days after the date of billing.
Revenue Report: A report (“Revenue Report”) providing support for the Revenue earned shall be provided within thirty (30) calendar days of the end of each calendar month.electronically via email. The Revenue Report shall include the quantity ads displayed, identified by title or other appropriate identifier, sold by M-W in the calendar month and the amount of Revenue payable to PUBLISHER.

9. CONFIDENTIALITY
“Restricted Information,” means any private, secret or confidential information, which is disclosed by either part pursuant to or in connection with this Agreement (whether orally or in writing and whether or not such information is expressly stated to be confidential or marked as such). Both parties shall at the times during the continuance of this Agreement and after its termination:

Use their best endeavors to keep all Restricted Information confidential and accordingly not disclose any Restricted Information to any other person; and
Not use any Restricted Information for any purpose other than the performance of its obligations under this Agreement; and
Be responsible for the activities of any properly appointed subcontractors or subsidiaries and undertake that they will be bound to the same extent of confidentiality as this Clause.

The confidentiality provisions shall not apply to: -

Any information in the public domain otherwise than by breach of this Agreement;
Information in the possession of the receiving party thereof before disclosure thereof by the disclosing party;
Information obtained without restriction from a third party; and
Information required to be disclosed by a court of competent jurisdiction, government body or applicable regulatory authority.

10. TERMINATION
Either party shall be entitled forthwith to terminate this Agreement by giving sixty (60) days written notice to the other without any cause being stated.

11. TERMINATION CONSEQUENCES
On the termination of this Agreement for any reason:

M-W shall cease to deliver advertisements
Clauses that are necessary for the enforcement or interpretation of this Agreement shall survive, which shall include (without limitation) clauses relating to confidentiality and protection of Intellectual Property Rights; and
Subject as otherwise provided herein and to any rights or obligations which have accrued prior to termination, neither party shall have any further obligation to the other under this Agreement.

12. AGENCY, PARTNERSHIP
This Agreement does not constitute a contractual partnership between the parties.

13. AMENDMENTS
This Agreement may not be released, discharged, supplemented, interpreted, amended, varied or modified in any manner except by an instrument in writing signed by a duly authorised officer or representative of each of the parties hereto.

14. ANNOUNCEMENTS
No party shall issue or make any public announcement or disclose any information regarding this Agreement unless prior written consent has been obtained from the other party, which consent shall not be unreasonably withheld or delayed. This clause shall not limit M-W rights in respect of marketing and sales of the Products.

15. ASSIGNMENT
This Agreement is personal to the parties and, subject to Clause below, neither this Agreement nor any rights, licenses or obligations under this Agreement, may be assigned by either part without the prior written approval of the other party.
Notwithstanding the foregoing, either party may assign this Agreement to any acquirer of all or of substantially all of such party’s equity securities, assets or business relating to the subject matter of this Agreement or to any entity controlled by that controls, or is under common control with a party to this Agreement. Any attempted assignment in violation of this clause will be void and without effect.

16. ENTIRE AGREEMENT
This Agreement supersedes all prior agreements, arrangements and undertakings between the parties and constitutes the entire agreement between the parties relating to the subject matter of this Agreement. However the obligations of the parties under any pre-existing non-disclosure agreement shall remain in full force and effect insofar as there is no conflict between the same. The parties confirm that they have not entered into this Agreement on the basis of any representation that is not expressly incorporated into this Agreement.

17. FORCE MAJEURE
Neither party shall have any liability under or be deemed to be in breach of this Agreement for any delays or failure in performance of this Agreement, which result from circumstances beyond the reasonable control of that party. If such circumstances continue for a continuous period of more than 20 working days, either party may terminate this Agreement by written notice to the other party.

18. INDEMNITY
PUBLISHER shall indemnify M-W for: personal injury or death caused by the negligence of its employees in connection with the performance of its duties hereunder, or by defects in any Products supplied pursuant to this Agreement; and direct damage to tangible property caused by the negligence of its employees in connection with the performance of their duties pursuant to this Agreement.

19. NOTICES
All notices hereunder shall be in writing. Notice shall be deemed to have been duly given: -

When delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or
When sent, if transmitted by fax or e-mail and a successful transmission report or return receipt is generated; or On the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or
On the tenth business day following mailing, if mailed by airmail, postage pre-paid in each case addressed to the most recent address, e-mail address, or facsimile number notified to the other party.

20. SCHEDULES
The provisions of the entire Schedule to this Agreement shall form part of this Agreement as if set out here.

21. SEVERANCE
If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of this Agreement.

22. SUCCESSORS AND ASSIGNEES
Subject to the provisions of clause 21 this Agreement shall be binding upon, and inure to the benefit of, the parties and their respective successors and permitted assignees, and reference to a party in this Agreement shall include its successors and permitted assignees. In this Agreement references to a party include references to a person:

who for the time being is entitled (by assignment, novation or otherwise) to that party’s rights under this Agreement (or any interest in those rights); or
who as administrator, liquidator or otherwise, is entitled to excise those rights; And in particular those references include a person to whom those rights (or any interest in those rights) are transferred or pass as a result of a merger, division, reconstruction or other reorganization involving that party. For this purpose, references to a party’s rights under this Agreement include any similar rights to which another person becomes entitled as a result of a novation of this Agreement.

23. WAIVER
No delay, neglect or forbearance on the part of either party in enforcing against the other party any term or condition of this Agreement shall either be or be deemed to be a waiver or in any way prejudice any right of that party under this Agreement. No right, power or remedy in this Agreement conferred upon or reserved for either party is exclusive of any other right, power or remedy available to that party.

24. COUNTERPARTS
This Agreement may be executed in any number of counterparts or duplicates, each of which shall be an original, and such counterparts or duplicates shall together constitute one and the same agreement.

25. THIRD PARTIES
The parties confirm their intent not to confer any rights on any third parties by virtue of this Agreement.

26. PROPER LAW AND JURISDICTION
This Agreement and all matters arising from it shall be governed by and construed in accordance with Indian Law notwithstanding the conflict of law provisions and other mandatory legal provisions; and each party irrevocably agrees to submit to the exclusive jurisdiction of the courts of India over any claim or matter arising under or in connection with this Agreement.

SCHEDULE 1

REVENUE SHARE

It is understood and agreed by both the parties that after the signing of this Agreement, M-W is obliged to pay PUBLISHER a net revenue share (at a rate mutually decided by both the parties), received from the advertiser for each successfully delivered AD impression or Clicks, as is received by M-W in each calendar month from the sale, license and/or distribution of such Applications. All payments and amounts due hereunder shall be paid to PUBLISHER after deduction of withholding tax.