Download AUCO Publisher Service Agreement Ver.20190109

AUCO Publishers Service agreement_20190109

Publisher Service Terms & Conditions 

1.Welcome to AUCO!

1. 1. Thanks for your interest in AUCO’s advertising services for publisher provided by TenMax Adtech Lab Co., Ltd. (the “TenMax Publisher Service”). By using our TenMax Publisher Service, you agree to these terms (the “AUCO Terms”) listed below.
   2. AUCO is a licensee of TenMax Adtech Lab Co., Ltd. (the “Licensor” or “TenMax”).
   3. As used in the Agreement along with this Publisher Service Terms & Conditions (the “Agreement”), “you” or “publisher” means the entity using the TenMax Publisher Service (and/or successor entity, agency or network acting on your behalf), “we,” “us” or “AUCO” means AUCO Co. Ltd., and the “parties” means you and AUCO. 

2.Access to the TenMax Publisher Service; TenMax Accounts

1. Your use of the TenMax Publisher Service is subject to our activation of a TenMax account (an “Account”).  We have the right to refuse or limit your access to the TenMax Publisher Service. By signing the Agreement to use the TenMax Publisher Service, you should have full capacity for civil conduct.  You may only have one Account.  
2. By activating your account with TenMax, you permit AUCO and TenMax to serve, as applicable, (i) advertisements and other content (“Ads”) and (ii) related links to your websites, mobile applications, media players, mobile content, and/or other properties approved by TenMax (each individually a “Property”).  In addition, you grant AUCO and TenMax the right to access and cache the Properties, or any portion thereof, including by automated means. TenMax may refuse to provide the TenMax Publisher Service to any Property.  
3. When entering the agreement, parties agree that Property that is a software application and accesses the TenMax Publisher Service (a) may require preapproval by TenMax in writing, and (b) must comply with TenMax’s software specification.

3. Using our TenMax Publisher Service

1. You may use our TenMax Publisher Service only as permitted by this Agreement and any applicable laws.  Don’t misuse our TenMax Publisher Service. For example, don’t interfere with our TenMax Publisher Service or try to access them using a method other than the interface and the instructions that we provide.
2. You may discontinue your use of any Service at any time by removing the relevant code from your Properties.   

4. Changes to our TenMax Publisher Service

We are constantly changing and improving our TenMax Publisher Service. We may add or remove functionalities or features of the TenMax Publisher Service at any time, and we may suspend a Service from time to time.  

5. Taxes

As between you and AUCO, AUCO is responsible for all taxes (if any) associated with the transactions between AUCO and advertisers in connection with Ads displayed on the Properties.  You are responsible for all taxes (if any) associated with the TenMax Publisher Service, other than taxes based on AUCO’s net income.  All payments to you from AUCO in relation to the TenMax Publisher Service will be treated as inclusive of tax (if applicable) and will be adjusted for any bank fee charged to AUCO.  If AUCO is obligated to withhold any taxes from its payments to you, AUCO will notify you of this and will make the payments net of the withheld amounts. AUCO will provide you with original or certified copies of tax payments (or other sufficient evidence of tax payments) if any of these payments are made by AUCO.

6. Intellectual Property; Brand Features

1. Other than as set out expressly in the Agreement, neither party will acquire any right, title or interest in any intellectual property rights belonging to the other party or to the other party’s Licensor.
2. If Licensor provides you with software in connection with the TenMax Publisher Service, we grant you a non-exclusive, non-sublicensable license for use of such software.  This license is for the sole purpose of enabling you to use and enjoy the benefit of the TenMax Publisher Service as provided by Licensor, in the manner permitted by the Agreement.  Other than distributing content via the TenMax Supply Side Platform, you may not, without prior written permission from Licensor, copy, modify, distribute, sell, or lease any part of our TenMax Publisher Service or included software, nor may you reverse engineer or attempt to extract the source code of that software, unless laws prohibit those restrictions.  You will not remove, obscure, or alter Licensor’s copyright, Brand Features, or other proprietary rights contained within any Licensor services, and software. 
3. We grant you a non-exclusive, non-sublicensable license to use Licensor’s service marks, logos, domain names, and other distinctive brand features (“Brand Features”) solely in connection with your use of the TenMax Publisher Service.  We may revoke this license at any time. Any goodwill arising from your use of Licensor’s Brand Features will belong to Licensor.
4. We may include your name and Brand Features in our presentations, marketing materials, customer lists and financial reports.  

7. Privacy

1. By using our TenMax Publisher Service, you agree that AUCO can use such data in accordance with TenMax’s privacy policy.
2. You will ensure that at all times you use the TenMax Publisher Service, the Properties have a clearly labeled and easily accessible privacy policy that provides end users with clear and comprehensive information about cookies, device-specific information, location information and other information stored on, accessed on, or collected from end users’ devices in connection with the TenMax Publisher Service, including, as applicable, information about end users’ options for cookie management. You will use commercially reasonable efforts to ensure that an end user gives consent to the storing and accessing of cookies, device-specific information, location information or other information on the end user’s device in connection with the TenMax Publisher Service where such consent is required by law.

8. Confidentiality

You agree not to disclose AUCO Confidential Information without our prior written consent. ” AUCO Confidential Information” includes: (i) all AUCO software, technology and documentation relating to the TenMax Publisher Service; (ii) click-through rates or other statistics relating to Property performance as pertaining to the TenMax Publisher Service; (iii) the existence of, and information about, beta features in a Service; and (iv) any other information made available by AUCO that is marked confidential or would normally be considered confidential under the circumstances in which it is presented.  AUCO Confidential Information does not include information that you already knew prior to your use of the TenMax Publisher Service, that becomes public through no fault of yours, that was independently developed by you, or that was lawfully given to you by a third party. Notwithstanding this Section 9, you may accurately disclose the amount of AUCO’s gross payments resulting from your use of the TenMax Publisher Service.  

9. Termination

1. You may terminate the Agreement with a 30-days prior written notice. The Agreement will be considered terminated within 10 business days of AUCO’s receipt of your notice. If you terminate the Agreement and your earned balance equals or exceeds the applicable threshold, we will pay you your earned balance within approximately 90 days after the end of the calendar month in which the Agreement is terminated. Any earned balance below the applicable threshold will remain unpaid.
2. AUCO may at any time terminate the Agreement, or suspend or terminate the participation of any Property in the TenMax Publisher Service for any reason. If we terminate the Agreement due to your breach or due to invalid activity, we may withhold unpaid amounts or charge back your account. If you breach the Agreement or AUCO suspends or terminates your Account, you will not be allowed to create a new Account.

10.  Indemnity

You agree to indemnify and defend AUCO, its affiliates, agents, and advertisers from and against any and all third-party claims and liabilities arising out of or related to the Properties, including any content served on the Properties that is not provided by AUCO, your use of the TenMax Publisher Service, or your breach of any term of the Agreement. AUCO’s advertisers are third-party beneficiaries of this indemnity.

11. Representations; Warranties; Disclaimers

1. You represent and warrant that (i) you have full power and authority to enter into the Agreement; (ii) you are the owner of, or are legally authorized to act on behalf of the owner of, each Property; (iii) AUCO has never previously terminated or otherwise disabled a AUCO account created by you due to your breach of the Agreement or due to invalid activity; (iv) entering into or performing under the Agreement will not violate any agreement you have with a third party or any third-party rights; and (v) all of the information provided by you to AUCO is correct and current.
2. OTHER THAN AS EXPRESSLY SET OUT IN THE AGREEMENT, WE DO NOT MAKE ANY PROMISES ABOUT THE TENMAX PUBLISHER SERVICE. FOR EXAMPLE, WE DON’T MAKE ANY COMMITMENTS ABOUT THE CONTENT WITHIN THE TENMAX PUBLISHER SERVICE, THE SPECIFIC FUNCTION OF THE TENMAX PUBLISHER SERVICE, OR THEIR PROFITABILITY, RELIABILITY, AVAILABILITY, OR ABILITY TO MEET YOUR NEEDS. WE PROVIDE EACH SERVICE “AS IS”.
3. TO THE EXTENT PERMITTED BY LAW, WE EXCLUDE ALL WARRANTIES, EXPRESS, STATUTORY OR IMPLIED. WE EXPRESSLY DISCLAIM THE WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. TO THE EXTENT SUCH STATUTORY WARRANTIES OR CONDITIONS APPLY AND CANNOT BE EXCLUDED, TO THE EXTENT TO WHICH AUCO IS ALLOWED, AUCO LIMITS ITS LIABILITY IN RESPECT OF ANY CLAIM UNDER THOSE WARRANTIES OR CONDITIONS TO, AT AUCO’S OPTION, THE SUPPLYING OF THE TENMAX PUBLISHER SERVICE AGAIN OR THE PAYMENT OF THE COST OF HAVING THE TENMAX PUBLISHER SERVICE SUPPLIED AGAIN.
4. Nothing in the Agreement, including Sections 11, 12 and 13, shall exclude or limit AUCO’s warranty or liability for losses which may not be lawfully excluded or limited by applicable law.  Some jurisdictions do not allow the exclusion of certain warranties or conditions or the limitation or exclusion of liability for loss or damage caused by negligence, breach of contract or breach of implied terms, or incidental or consequential damages. Accordingly, only the limitations which are lawful in your jurisdiction will apply to you and AUCO’s liability will be limited to the maximum extent permitted by law.

12. Limitation of Liability

TO THE EXTENT PERMITTED BY LAW, EXCEPT FOR ANY INDEMNIFICATION OBLIGATIONS HEREUNDER OR YOUR BREACH OF ANY INTELLECTUAL PROPERTY RIGHTS, CONFIDENTIALITY OBLIGATIONS AND/OR PROPRIETARY INTERESTS RELATING TO THE AGREEMENT, (i) IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THE AGREEMENT FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE DAMAGES, OR LOSSES AND EXPENSES WHETHER IN CONTRACT, TORT OR ANY OTHER THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES AND EXPENSES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, AND (ii) EACH PARTY’S AGGREGATE LIABILITY UNDER THE AGREEMENT IS LIMITED TO THE NET AMOUNT RECEIVED AND RETAINED BY THAT PARTICULAR PARTY IN CONNECTION WITH THIS AGREEMENT DURING THE THREE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM.  Each party acknowledges that the other party has entered into the Agreement relying on the limitations of liability stated herein and that those limitations are an essential basis of the bargain between the parties.

13. Miscellaneous

Entire Agreement; Amendments.  The Agreement including all appendices, schedules, attachment hereto constitute our entire agreement relating to your use of the TenMax Publisher Service.  The Agreement may be amended only in writing and signed by both parties.  If there is any inconsistency or ambiguity between the English version and the Vietnamese version, the English version shall prevail.

Assignment.  You may not assign or transfer any of your rights under the Agreement without prior written consent from AUCO.

Independent Contractors.  The parties are independent contractors and the Agreement does not create an agency, partnership, or joint venture.

No Third-Party Beneficiaries. Other than as set forth in Section 11, the Agreement does not create any third-party beneficiary rights.

No Waiver.  Other than as set forth in Section 5, the failure of either party to enforce any provision of the Agreement will not constitute a waiver.

Severability.  If a particular term of the Agreement is not enforceable, the balance of the Agreement will remain in full force and effect.

Survival.  Sections 7, 9, 10, 11, 13, and 14 of these AUCO Terms will survive termination.

Governing Law; Venue.  To the full extent permitted by law, this Agreement shall be governed by and construed in accordance with the laws of the Socialist Republic of Vietnam, excluding its conflict of law principles.  The parties further agree that the provincial and municipal people’s court in Ho Chi Minh City shall be the court of competent jurisdiction for the first instance arising out of or relating to this Agreement.

Force Majeure.  Neither party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance) that was beyond the party’s reasonable control.

Communications.  In connection with your use of the TenMax Publisher Service, AUCO may contact you regarding service announcements, administrative messages, and/or other information through email.