PUBLISHER’S TERMS AND CONDITIONS

Last Version Effective Date: 12-12-2019

Thanks for your interest in MoMAGIC services.

By signing the Publisher’s Insertion Order, you agree MoMAGIC Publisher’s terms and Conditions (the “Terms and Conditions”) to use MoMAGIC service as a publisher. Please read below terms and conditions carefully before you use our service.

MoMAGIC reserves the right to amend the Terms and Conditions at any time, and it is your responsibility to review the Terms and Conditions for any changes. Your use of the Services will signify the assent to and acceptance of the revised Terms and/or revised conditions. “we”, “us” or “MoMAGIC” means MoMAGIC, and the “parties” means you and MoMAGIC.

Acceptance of terms

If you use the service on behalf of any third party, you represent and warrant that you are authorized to act on behalf of, and bind that third party to these terms and conditions. You shall ensure that each third party is bound by and abides by the Terms and Conditions. No terms or conditions other than those set forth in the Terms and Conditions or Insertion Order(s) will be binding on us unless expressly agreed to in writing by us. You understand that our contractual relationship and obligations only extend to you. We do not have a contractual obligation with end users who purchase and/or install your products, partners or third party affiliates who utilize the platforms, or any other party with whom you chose to engage to perform any transactions involving the services. There are no third party beneficiaries to this agreement.

Your consent to receiving electronic communications and agree that all agreements, notices, disclosures and other communications and agree that all agreements, notices, disclosures and other communications that we provide to you electronically, via email or by posting notices in your account area satisfy any legal requirement that such communications be in writing. You acknowledge and agree that by submitting an electronic signature program as a means of accepting this agreement, you are submitting a legally binding electronic signature and are entering into a legally binding contract.

Definitions

For the purposes of this Agreement, the following terms will have the indicated meanings:

Advertising Material: means the application or website, wapsite etc. owned by MoMAGIC, and/or third party’s material, which is licensed to MoMAGIC to promote the services set forth here under.

Advertiser: means the Owner or licensor who have the right to provide the Advertising Material or content to the Publisher.

Agreement means and include these Terms and Conditions and Insertion Order executed between MoMAGIC and you for the promotion of Advertising Material Via Publisher’s Platform.

Publisher: means the individual or entities who promote the Advertising Material on their own Publisher’s Platforms.

Publisher’s Platforms: means the websites, mobile applications, media players, mobile content, and/or other Promotional Platforms owned by or authorized to publisher, and approved by MoMAGIC for promoting Advertising Material.

Disclosing Party: means the party to this Agreement disclosing Confidential Information;

“Data Protection Laws” means any law, enactment, regulation, regulatory policy, by law, ordinance or subordinate legislation relating to the processing, privacy, and use of Personal Data, as applicable to the end user the Supplier and/or the Services.

“Protected Data” means Personal Data received from MoMAGIC, or otherwise obtained or created in connection with the performance of the Publisher ’s obligations under this Agreement;

Receiving Party: means the party to the Agreement to whom Confidential Information is disclosed;

Confidential Information: means any and all information and know-how that either party may from time to time disclose to each other, whether orally, in writing or digitally, which relates to the business, strategy, planning and technology of either party or its Affiliates, including but not limited to any of its products, data, know-how, product roadmaps, designs, illustrations, drawings, photographs, notes, memoranda, financial information, financial projections, financial records, marketing information, spreadsheets and computer software;

Intellectual Property Rights: means rights, title and interest to and in any discovery, development, invention, patent, including application for the grant of such right, improvement, design (whether registered or unregistered), process, formula, method, database, information, drawing, code, computer program, copyright work or any work of authorship (present and future), semiconductor or other topography, trade mark (whether registered or unregistered) or trade name or get-up/trade address.

MoMAGIC Advertising Service: When using MoMAGIC advertising service, the below terms and conditions will apply on you.

1. Implementation of Services:

1.1. You agree to promote all Advertising Material on Publisher’s Platforms. You agree to provide necessary support for the purpose of the MoMAGIC Advertising Services. You further represent and warrant that you will not modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from any Advertising Material, technology platform, code, software, services, interface, applications, and solution, provided hitherto by MoMAGIC for provision of services under this agreement.

1.2. Ensure Publisher’s Platform does not contain content or materials of any kind (including, but not limited to, text, graphics, images, photographs, sounds, etc.) that are illegal or objectionable (for example, materials that may be considered obscene, pornographic or defamatory).

1.3. You agree not to employ any improper ways and means to deliver Deliverables (Clicks, Installs, Activations or Impressions) using either manual cheats, specialized programs, code/s, script/s, bot/s, Trojan/s, emulator/s or other fraudulent methods.

1.4. You also agree not deliver Deliverables by auto initiation of Video Views, Page Visits, Clicks, Activations and Installs and that these must be result of user initiated action.

1.5. You acknowledge that if you use any of the above mentioned improper ways and means to deliver any Deliverables then MoMAGIC has the right to reject all payments where such improper ways and means are detected and/or reasonably suspected and has the sole right to terminate any outstanding order and black list you as the case may be for any future business.

1.6. You further agree to participate in any joint press releases and marketing announcements, with prior approval from MoMAGIC.

1.7. MoMAGIC shall provide you with reasonable technical support for the purpose of the implantation of MoMAGIC Advertising Service.
1.8. MoMAGIC will ensure that Advertising Material shall not contain content or materials of any kind (including, but not limited to, text, graphics, images, photographs, sounds, etc.) that are objectionable or fraudlent.

1.9. MoMAGIC represents and warrants that Advertising Material does not infringe any third parties’ rights, including but not limited to patents, trademarks, copyrights, trade secrets, license or other proprietary rights.

1.10. MoMAGIC shall provide reports on regular basis with details on completion of Deliverables such as Clicks, Installs, Activations or Impressions, which shall be the basis of invoicing by you. Such reports would not limit or in any way waive MoMAGIC’s rights to retrospectively report or detect any reasonably suspected improper ways and means used by you, which may be investigated at any time during the term of this agreement.

2. Reporting and payment:

2.1. MoMAGIC agrees to provide you reports to show your promotion data. The payment will be based on MoMAGIC’s reports.

2.2. You hereby agree to follow MoMAGIC’s reports to issue invoices accordingly. Invoices for the entire campaign / activity will be raised within 7 days of receipt of the final monthly report. Invoices will be sent to Advertiser’s billing address as set forth on the IO and will include information reasonably specified by Advertiser, such as the IO start date, Advertiser name, brand name or campaign name, and any number or other identifiable reference stated as required for invoicing on the IO.

2.3. Payments made to you as determined by MoMAGIC, whether as a result of inaccurate information provided by a third party or otherwise, MoMAGIC shall allocate any deficient amounts or deduct any overpayment in the subsequent calendar month payment due to You.

2.4. Payments will be made within 45 days from the date of valid and proper Invoice raised. Advertiser’s obligation of such payment hereunder is conditioned upon Advertiser receiving the corresponding amounts from its Advertiser in connection with the applicable campaign. Advertiser shall have no liability to Publisher or any other party for a failure to pay Publisher any amounts hereunder to the extent that such failure was caused by or results from failure of MoMAGIC’s Advertiser to pay in full all amounts due and owing to MoMAGIC in connection with the applicable Campaign.

2.5. Publisher shall not issue an invoice if the total amount payable by MoMAGIC is less than INR 5000. In such cases the amount payable shall roll over and be included in the invoice of following month.

2.6. If actual Deliverables for any campaign fall below guaranteed levels, as set forth on the IO, and/or if there is an omission of any Ad (placement or creative unit), Advertiser and Publisher will use commercially reasonable efforts to agree upon the conditions of a makegood flight, either on the IO or at the time of the shortfall.

2.7. Conversion rate (From any Foreign currency to INR) shall be taken as per RBI reference rate on the monthly average rate of the month on which the Invoice is to be raised.

2.8. The Services provided under the Insertion order shall be considered as completed, only after the submission of Monthly Report.

2.9. MoMAGIC will pay the payment by telegraphic transfer . The payment charges, included but not limited to bank fee is individually borne by both parties.

2.10. Payment will be made by MoMAGIC after the Net Revenue confirmed by MoMAGIC from applicable advertisers. The Net Revenue percentage and /or the unit price paid to you shall be determined by MoMAGIC and may be varied in its reasonable discretion from time to time.

2.11. MoMAGIC reserves the right to discontinue and/ or withhold payment at any time, and/or terminate any agreement with You without liability, if MoMAGIC reasonably suspects that any of the following have occurred on Your Deliverables and /or platforms:

(i) any form of Fraudulent Activity or illegal practices, or

(ii) any type of activity, text, image, or use that may violate applicable law or is reasonably likely to have a negative commercial impact on MoMAGIC, its advertisers or business partners. Without limitation to the foregoing, MoMAGIC may, at its sole discretion, credit back to advertisers and/or offset against future payments to your any payments which it subsequently determines accrued as a result of such fraudulent activity or illegal activity.

2.12. You are responsible for all taxes (if any), including but not limited to sales, GST, VAT, excise, service tax, or such other transaction taxes, associated with the Services, other than taxes based on MoMAGIC’s net income. All payments to you from MoMAGIC in relation to the Services will be treated as inclusive of tax (if applicable) and will not be adjusted.

2.13. You shall provide MoMAGIC the original invoice that state the indirect tax amount separately and meet the requirements for a valid tax invoice under indirect tax laws and regulations. You acknowledges that the indirect tax amounts charged in the invoice shall be declared in your tax Returns and payment of such taxes shall be made timely based on indirect tax laws.

2.14. All payment shall be subject to deduction of applicable TDS and Withholding Tax. Equalisation levy shall be charge at 6 % wherever applicable.

3. Warranties and representations:

3.1. Each Party to this Agreement represents and warrants to the other that it has, and will retain throughout the Term, all right, title and authority to enter into, and perform all of its obligations pursuant to this Agreement.

3.2. Publisher’s Platforms are wholly-owned by you or that you are licensed to use on a fully paid-up basis or are otherwise permitted to use in a manner that will not require the payment of any fees, royalties or other amounts by MoMAGIC to you or any third party.

3.3. Publisher’s Platforms must not contain content or materials of any kind (including, but not limited to, text, graphics, images, photographs, sounds, etc.) that are illegal or objectionable (for example, materials that may be considered obscene, pornographic or defamatory).

3.4. Publisher’s Platforms do not and will not violate, misappropriate, or infringe any copyright, patent, design, trademark, trade secret, privacy or publicity rights, or any proprietary, Intellectual Property Rights or other legal rights of MoMAGIC and any third parties. You should be solely responsible for your Platforms and you agree and acknowledge that MoMAGIC has no responsibility or liability relating to your Platforms.

3.5. The content published on your Platforms shall comply with all applicable laws. Your platforms will not contain any language or material that is discriminating, obscene, racist, libelous or defamatory. Publisher shall be solely responsible for ensuring, you hereby represent and warrant that the information you provide to MoMAGIC and to the end users is true, accurate and valid, and that the content provided by you is safe, free of defects in design and operation, and that it complies with all applicable laws.

3.6. Publisher’s platforms do not and will not harm the users’ benefits by any means.

3.7. Publisher does not and will not promote the Advertising Material with billing code, and debits plug-in.

3.8. Publisher does not and will not use the site link redirection method to promote Product, including but not limited to redirecting publisher website’s home page to another site, or to an adult site, or even to the promotion link of Publisher.

3.9. Publisher does not and will not upload the Advertising Material to a mobile app store with obscene descriptions and images.

3.10. MoMAGIC will reserve the right to refuse any promotion fee due to low quality installs.

3.11. MoMAGIC will take legal actions if any type of malicious promotion on above campaigns happens.

3.12. MoMAGIC shall publish the Advertising Material only for the purpose and particular campaign for which it was supplied for, under the Insertion Order and in compliance with the terms and conditions herein.

4. Data Protection :

4.1. Each party further represents and warrants that it complies with the provisions of the Data Protection law including all other such legislation in respect of personal data derived from the Campaign;

4.2. Both parties shall implement and maintain appropriate technical and organizational measures in relation to the processing of Protected Data:

4.2.1. such that the collecting and processing will meet the requirements of Data Protection Laws;

4.2.2. so as to ensure a level of security in respect of Protected Data processed by it is appropriate to the risks that are presented by the processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Protected Data transmitted, stored or otherwise processed.

5. Confidentiality:

Each Party acknowledges Confidential Information shall be used solely for the business, affairs, plans, customers, technology, and products and shall not exploit such confidential information for its own benefit or the benefit of another without the prior written consent of the other party. The term “Confidential Information” shall mean all non-public information this Agreement or a Party designates as being confidential or which under the circumstances of disclosure ought to be treated as confidential. “Confidential Information” includes, without limitation, the terms and conditions of this Agreement, pricing, marketing or promotion of any product or services, business policies or practices, customers, potential customers or documentation or information received from others that a Party is obligated to treat as confidential. If a Party has any questions as to what comprises such Confidential Information, that Party shall consult with the other Party. “Confidential Information” shall not include information that was known to a Party prior to the other Party’s disclosure or information that becomes publicly available through no fault of the Party. Each Party shall hold in strictest confidence, shall not use or disclose to any third Party, and shall take all necessary precautions to secure any Confidential Information of the other Party. Disclosure of such information shall be restricted solely to employees, agents, consultants and representatives who have been advised of their obligation with respect to Confidential Information.

6. Disclaimer:

Notwithstanding anything to the contrary, the advertising material is provided “as is” without warranty of any kind express or implied and neither momagic, its advertiser, employees or affiliates nor the copyright holders make any representations or warranties, express or implied, including but not limited to the warranties of merchantability or fitness for a particular purpose or that the advertising material will not infringe any third party patents, copyrights, trademarks or other rights. there is no warranty by moamgic or by any other party that the functions contained in the advertising material will meet the requirements of publisher or that the operation of the advertising material will be uninterrupted or error-free. publisher assumes all responsibility and risk for the selection of the advertising material to achieve publisher’s intended results and for the installation, use and results obtained from it.

7. Termination:

Parties to the Agreement at any time without cause in their sole discretion may terminate the agreement upon thirty (30) calendar days’ prior written notice to the other. Either Party may terminate this Agreement immediately by notice in writing to the other if the other Party is in material breach or persistent breach of any of the provisions of this Agreement and, in the case of a breach capable of remedy, fails to remedy such breach within fifteen (15) calendar days of receipt of written notice giving full particulars of the breach and of the steps required to remedy it; or is wound up, or is declared insolvent, or has a liquidator appointed over its assets.

Pause of individual Campaign: Individual Campaign can be paused as per its Pause Notice duration (should be mentioned in email, at least 24 hours). Publisher agrees to stop MOMAGIC campaign temporarily (“Pause”) with a written request from the MOMAGIC. To pause any running campaign, MOMAGIC shall notify Publisher in the Email for Pause Notice duration, which shall be at least 24 hours (by default), or such longer duration as may be communicated by the MOMAGIC in email. The payment obligation of MOMAGIC will continue for such Pause Notice duration.

8. Indemnification:

Each party agrees to indemnify and keep the other party, its officers, directors, employees and affiliates indemnified from and against all claims, damages, liability, demands, expenses, actions, suits or cause of action suffered by or arising out of or in connection with

(i) the breach of the terms of the Agreement by the party or any of its representatives, employees;

(ii) breach of the applicable laws;

(iii) breach of the privacy policies or any of the terms and conditions governing the campaign.

Neither Party shall be liable in contract, tort (including negligence), pre-contract or other representations (other than fraudulent or negligent misrepresentations) or otherwise arising out of or in connection with this Agreement for loss of revenues, profits, contracts, business or anticipated savings; or any special, indirect or consequential losses.

9. Limitation of Liability:

Notwithstanding anything to the contrary in the Insertion Order or these Terms and Conditions or any other document signed between the Parties regarding the subject matter of the Insertion Order, either prior or subsequent to the Insertion Order, in no event shall MoMAGIC be liable for any loss of profits or revenue, or loss of data or goodwill or for any indirect, incidental, special or consequential damages incurred by the Publisher or any other party. Except for liabilities arising under the Indemnification provisions, the maximum liability of MoMAGIC shall in no case exceeds the remuneration paid by it in the last month to which an issue/claim arises.

10. Non-solicitation:

During the term of the Insertion Order and for a period of six months after the expiration or termination of the Insertion Order, for any reason, Publisher hereto agrees that it shall not:

(a) directly or indirectly induce any advertiser, agent or clients of MoMAGIC to patronize the Publisher for any similar business;

(b) directly or indirectly request or advise any advertiser, agent or clients of MoMAGIC to withdraw, curtail, or cancel such advertiser’s, agent’s or client’s business with MoMAGIC;

(c) directly or indirectly disclose to any other person, partnership, corporation or association, the names or addresses of any of the advertiser, agent or clients of MoMAGIC;

(d) knowingly and intentionally induce or attempt to induce any employee, agent or former employee or agent of MoMAGIC to leave the employment of MoMAGIC, or hire any such employee, agent or former employee or agent in any business or capacity; or

(e) make any statement disparaging MoMAGIC, any member, principal, officer, director, shareholder, employee or agent thereof, to any person, firm, corporation or other business organization whatsoever. This clause shall not apply in a situation where Publisher has a pre-existing business relationship with the aforementioned advertiser, agent or clients of MoMAGIC.

11. Intellectual Property Rights:

Both Parties hereby acknowledges that nothing in Insertion Order or these Terms and Conditions shall be deemed to transfer any right, title and interest in the other Party’s Intellectual Property in any manner whatsoever.
MoMAGIC and its advertiser shall retain all right, title and interest in and to its, or its licensees, copyright and other intellectual property rights (“IPR”) relating to the Advertising material.

12. Arbitration:

Any dispute, controversy or claim arising out of or relating to the Agreement, or the breach, termination or validity thereof shall be first settled by arbitration in accordance with the Arbitration and Conciliation Act; 1996.The arbitration shall be conducted in New Delhi, INDIA. The award shall be final and binding on the Parties.

13. Applicable Law:

The Agreement shall be governed by and construed in accordance with the laws of India, which shall govern all actions arising hereunder, and the courts at New Delhi, India shall have exclusive jurisdiction over any matter concerning the Agreement.

14. Miscellaneous:

14.1. Parties agree to receive electronic communication and agree that all notices, disclosures, and other communications that are provided electronically, via e-mail or any commercially reasonable means satisfy any legal requirement that such communications be in writing.

14.2. The Agreement constitutes the entire agreement between the parties in relation to its subject matter and replaces and extinguishes all prior agreements between the parties and all prior representations, whether written or oral, made by either party with respect to such subject matter provided. All additions and/or modifications to this agreement must be made in writing and must be signed by both parties.