ADSMOKE PUBLISHER AGREEMENT
AdSmoke Platform - Terms and Conditions
1.1 "Advertisements" means audio-visual, rich media, banner, text and other advertisements.
1.2 "Advertiser" means a third-party advertiser, media buyer, ad-agency or other third-party providers of Advertisements.
1.3 "Content" means any content or materials residing on, distributed by, or that otherwise may be viewed or downloaded by end users of the Publisher Properties (excluding AdSmoke Advertisements as defined in Schedule 4).
1.4 "CPM" means the cost per thousand Advertisement impressions.
1.5 "Fees" means, collectively, the Monthly Service Fee, the Hourly Support Fee and any other fees that may be due or payable to AdSmoke hereunder.
1.6 "Monthly Service Fee" means the payment due from Publisher to AdSmoke for the Advertisements that are routed and/or served by the AdSmoke Platform in response to requests from the Publisher Properties or the servers that make them available, as measured by the AdSmoke Platform.
1.7 "Publisher Properties" means web sites, mobile properties and/or other online services and applications listed on Schedule 1 hereto, as may be amended by mutual agreement of the parties from time to time, which web sites, mobile properties and/or other online services and applications are owned and/or controlled by Publisher. If (pursuant to mutual agreement of the parties) the AdSmoke Platform is to be used in connection with web sites, mobile properties and/or other online services and applications owned or controlled by Publisher that are not listed on Schedule 1, Schedule 1 shall be deemed to have been amended by the parties to include such web sites, mobile properties and other online services and applications.
1.8 "AdSmoke Platform" means AdSmoke's hosted video and rich-media advertising system, which supports video and advertisement insertion within or in connection with online content (including before, during, and after playback for video content), AdSmoke's Adaptive Campaign Engine functionality that allows for the management and routing of advertisements sourced from third party advertisement networks, and related advertisement reporting tools. All references herein to the AdSmoke Platform refer to the version selected on the Order Form.
2. RIGHTS AND OBLIGATIONS.
2.1 AdSmoke Platform. Subject to compliance with all terms and conditions of this Agreement, Publisher shall have the right during the Term to access and use the AdSmoke Platform to insert Advertisements in Content and the Publisher Properties, solely in accordance with the intended functionality of the AdSmoke Platform and any applicable documentation provided by AdSmoke. Publisher is responsible for obtaining and configuring all required computer hardware, software and telecommunications services.
2.2 AdSmoke Software License. During the Term, AdSmoke hereby grants Publisher a worldwide, non-transferable (except for a permitted assignment of this Agreement), non-exclusive right and license to (a) install and use the AdSmoke Software internally for the sole purpose of using the AdSmoke Platform to insert Advertisements in Content and the Publisher Properties pursuant to this Agreement, in the manner enabled by AdSmoke and in accordance with any applicable documentation provided by AdSmoke; (b) use, reproduce and distribute certain portions of the AdSmoke Software solely as required for Publisher's distribution of mobile applications or embedded applications to end users, solely in the manner enabled by AdSmoke and in accordance with any applicable documentation provided by AdSmoke, and provided that any such distribution to an end user is subject to terms at least as protective of AdSmoke Software as those set forth herein; and (c) to internally use any provided documentation for the sole purpose of exercising the foregoing licenses. Publisher agrees to implement the AdSmoke Software in the Publisher Properties in accordance with AdSmoke's specifications within thirty (30) days of the Effective Date.
2.3 License Restrictions. Publisher has no rights or licenses with respect to the AdSmoke Platform, AdSmoke Software or any documentation (collectively, the "AdSmoke Materials") except as expressly provided in this Agreement. Without limiting the generality of the foregoing, except as expressly provided in this Agreement, Publisher may not (a) copy, distribute, rent, lease, lend, sublicense, transfer or make the AdSmoke Materials available to any third party or use the AdSmoke Materials on a service bureau basis, (b) decompile, reverse engineer, or disassemble the AdSmoke Materials, (c) create derivative works based on the AdSmoke Materials; or (d) modify, remove, or obscure any copyright, trademark, patent or other notices or legends that appear on the AdSmoke Materials or during the use and operation thereof.
2.4 Publisher Permissions. Publisher agrees that, in connection with the operation of the AdSmoke Platform, AdSmoke may: (a) access or call to the Publisher Properties or the servers that make them available and to cause the routing, transmission, reproduction, and display of Advertisements as contemplated herein; and (b) collect data and information, including cookies and beacon data, metadata, usage data, and streaming data, with regard to Publisher's use of the AdSmoke Platform and the Content and Publisher Properties within which Advertisements are routed and/or served and (i) use such information for AdSmoke's internal business purposes; (ii) disclose such information to third parties (including Advertisers and partners) as reasonably necessary in connection with the operation of the AdSmoke Platform or as may be required by law or legal process; and (iii) disclose such information generally when it is aggregated with similar information relating to other AdSmoke publishers such that the specific information relating to Publisher is not identified as such.
3. PROPERTIES AND CONTENT. Publisher agrees that AdSmoke has no obligation to monitor or edit the content of any Advertisements, and no obligation or ability to monitor or edit the Publisher Properties and Content. Publisher acknowledges and agrees that it may not use the AdSmoke Platform in connection with any Publisher Properties, Content or Advertisements containing, consisting of or promoting discrimination, illegal activities, hate speech, pornography, profanity, obscenity or sexually explicit material, and that it will notify AdSmoke immediately of any Publisher Properties, Content or Advertisements relating to alcohol or gambling. AdSmoke may remove or refuse to distribute any Advertisements through the AdSmoke Platform if AdSmoke reasonably determines that such action is appropriate to (i) prevent errors or any other harm with respect to the AdSmoke Platform, the Publisher Properties or other web sites, mobile properties, online services and applications serviced by the AdSmoke Platform, or (ii) limit AdSmoke's liability. AdSmoke shall notify Publisher after taking any such action.
4. USE OF PLATFORM. Publisher shall be responsible at all times for the activities of any person accessing the AdSmoke Platform using a user name and password issued to Publisher by AdSmoke. Publisher may not use any automated means, including agents, robots, scripts, or spiders, to access or manage Publisher's account with the AdSmoke Platform. AdSmoke reserves the right to modify and update the features and functionality of the AdSmoke Platform from time to time, and may suspend access to the AdSmoke Platform, in whole or in part, at any time if AdSmoke reasonably determines that such action is appropriate to (i) prevent errors or any other harm with respect to the AdSmoke Platform, the Publisher Properties or other web sites, mobile properties, online services and applications serviced by the AdSmoke Platform, (ii) respond to Publisher's breach of this Agreement, or (iii) limit AdSmoke's liability. AdSmoke shall notify Publisher following any such suspension. In addition, Publisher acknowledges that the AdSmoke Platform is designed primarily to route and/or serve video Advertisements, and Publisher agrees not to use the AdSmoke Platform for banner Advertisements (except to the extent banner Advertisements are routed and/or served jointly with video Advertisements).
6. TERM; TERMINATION.
6.1 Term. At the end of the Initial Term (as set forth on the Order Form), this Agreement shall automatically renew for successive periods of twelve (12) months each unless either party gives the other party written notice of non-renewal at least ninety (90) days prior to the renewal date (such renewal periods and the Initial Term, collectively the "Term").
6.2 Termination. Either party may terminate this Agreement effective immediately if the other party is in material breach of any obligation, representation or warranty hereunder and fails to cure such material breach (if capable of cure) within thirty (30) days (or ten (10) days in the event of breach of payment obligations) after receiving written notice of the breach from the non-breaching party. Either party may terminate immediately upon written notice at any time if: (i) the other party files a petition for bankruptcy or is adjudicated as bankrupt; (ii) a petition in bankruptcy is filed against the other party and such petition is not removed or resolved within sixty (60) calendar days; (iii) the other party makes an assignment for the benefit of its creditors or an arrangement for its creditors pursuant to bankruptcy law; (iv) the other party discontinues its business; (v) a receiver is appointed over all or substantially all of the other party's assets or business; or (vi) the other party is dissolved or liquidated.
6.3 Effect of Termination. Any provisions of this Agreement that by their nature survive expiration or termination, including Sections 1, 2.3, 2.5, 5, 6.3, 7 and 9 through 13 of this Exhibit A, shall survive expiration or termination of this Agreement.
7. OWNERSHIP. As between the parties (a) Publisher retains all right, title and interest in and to the Publisher Properties and Content, including all intellectual property rights related to each of the foregoing, and (b) AdSmoke retains all right, title and interest in and to the AdSmoke Platform, the AdSmoke Software and any materials created, developed or provided by AdSmoke in connection with this Agreement, including all intellectual property rights related to each of the foregoing. Publisher is not required to provide any feedback or suggestions to AdSmoke. To the extent Publisher does provide any such feedback or suggestions, Publisher agrees to assign and hereby does assign all right, title and interest in and to such feedback or suggestions to AdSmoke.
8. REPRESENTATIONS AND WARRANTIES.
8.1 Mutual. Each party represents, warrants and covenants to the other party that: (a) it has the full power and authority to enter into this Agreement; (b) the execution of this Agreement and performance of its obligations under this Agreement does not violate any other agreement to which it is a party; and (c) this Agreement constitutes a legal, valid and binding obligation when executed and delivered.
8.2 Representations and Warranties of Publisher. Publisher represents, warrants and covenants to AdSmoke that: (a) it has all necessary rights, title, and interest in and to the Advertisements, Publisher Properties and Content, and any third party advertisement networks and advertisement servers it may utilize in connection with the AdSmoke Platform, to allow AdSmoke to route and/or serve Advertisements and to operate the AdSmoke Platform as contemplated herein; (b) it shall not use the AdSmoke Platform in connection with any Advertisements, Publisher Properties, Content or technology in a manner that violates any law, rule or regulation, including without limitation applicable FTC regulations, COPPA, CAN-SPAM and other privacy and data protection laws; (c) it shall comply with Section 2.5 and it has any and all consents, authorizations and clearances from end users of the Publisher Properties as may be required for AdSmoke to provide services hereunder; and (d) the Advertisements, Publisher Properties and Content do not and will not (i) infringe upon, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right ("Intellectual Property Rights") or (ii) slander, defame, or libel any person.
8.3 Representations and Warranties of AdSmoke. AdSmoke represents, warrants and covenants to Publisher that the technology underlying the AdSmoke Platform does not infringe upon, violate, or misappropriate any United States Intellectual Property Right of a third party.
9. DISCLAIMERS. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, AND EACH PARTY EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR PERFORMANCE. ADSMOKE AND ITS SUPPLIERS, LICENSORS, AND PARTNERS DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE ADSMOKE PLATFORM WILL BE CORRECT, UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE ADSMOKE PLATFORM OR THE SERVERS THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ADSMOKE DOES NOT WARRANT THE RESULTS OF USE OF THE ADSMOKE PLATFORM.
10.1 AdSmoke Indemnification. AdSmoke agrees to indemnify, defend, and hold Publisher and its directors, officers and employees harmless from and against any liabilities, damages or expenses (including reasonable attorneys' fees) arising out of any claim, demand, action, or proceeding initiated by a third party to the extent alleging that the technology underlying the AdSmoke Platform or AdSmoke Software, or any portion thereof, infringes any third party United States patent or copyright or misappropriates any third party trade secret, provided that Publisher: (a) promptly notifies AdSmoke in writing of the claim, except that any failure to provide this notice promptly only relieves AdSmoke of its responsibility pursuant to this Section 10.1 to the extent its defense is materially prejudiced by the delay; (b) grants AdSmoke sole control of the defense and/or settlement of the claim; and (c) provides AdSmoke, at AdSmoke's expense, with all assistance, information and authority reasonably required for the defense and/or settlement of the claim, but in a manner consistent with Publisher's respective confidentiality obligations and preservation of attorney/client and work product privileges. In the event of a claim, demand, action or proceeding that the technology underlying the AdSmoke Platform or AdSmoke Software, or any portion thereof, infringes or misappropriates any third party intellectual property or other right or, if in AdSmoke's reasonable opinion, such claim, demand, action or proceeding is likely to occur, AdSmoke shall have the right, at AdSmoke's sole cost and expense, to either: (i) obtain the right to continued use of the affected portion of the AdSmoke Platform and AdSmoke Software or (ii) modify or replace, in whole or in part, the affected portion of the AdSmoke Platform and AdSmoke Software to eliminate the infringement or misappropriation. If AdSmoke is unable to achieve of the foregoing (i) or (ii) in a commercially reasonable manner, AdSmoke shall have the right to immediately terminate this Agreement upon written notice to Publisher without liability therefor. The provisions of this Section 10.1 constitute Publisher's sole remedy and AdSmoke's exclusive liability related to the AdSmoke Platform and AdSmoke Software with respect to any infringement, violation, or misappropriation of any Intellectual Property Right.
10.2 Publisher Indemnification. Publisher agrees to indemnify, defend, and hold AdSmoke and its directors, officers and employees harmless from and against any liabilities, damages or expenses (including reasonable attorneys' fees) arising out of any claim, demand, action, or proceeding initiated by a third party to the extent attributable to the alleged or actual breach of Publisher's representations and warranties set forth in Section 8.2, provided that AdSmoke: (a) promptly notifies Publisher in writing of the claim, except that any failure to provide this notice promptly only relieves Publisher of its responsibility pursuant to this Section 10.2 to the extent its defense is materially prejudiced by the delay; (b) grants Publisher sole control of the defense and/or settlement of the claim; and (c) provides Publisher, at Publisher's expense, with all assistance, information and authority reasonably required for the defense and/or settlement of the claim, but in a manner consistent with AdSmoke's respective confidentiality obligations and preservation of attorney/client and work product privileges.
11. LIMITATION OF LIABILITY. EXCEPT WITH RESPECT TO LIABILITIES ARISING OUT OF A PARTY'S INDEMNIFICATION OBLIGATIONS UNDER SECTION 10, PUBLISHER'S BREACH OF SECTIONS 2.3 OR 2.5 OR EITHER PARTY'S BREACH OF SECTION 12, (A) NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY HEREUNDER FOR ANY PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES, INCLUDING LOST BUSINESS, REVENUE, OR ANTICIPATED PROFITS, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER OR NOT THE PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES AND (B) IN NO EVENT WILL EITHER PARTY'S LIABILITY AND DAMAGES UNDER THIS AGREEMENT EXCEED THE SUM OF THE TOTAL FEES PAYABLE TO AND BY ADSMOKE UNDER THIS AGREEMENT DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE THE CLAIM FIRST AROSE. THE PARTIES AGREE THAT THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT INCREASE THE FOREGOING LIMIT, AND THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 11 WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
12.1 "Confidential Information" means any and all information that is disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects, which if disclosed in writing or tangible form is marked as "Confidential," or with some similar designation, or if disclosed orally or by inspection or observation, is identified as being proprietary and/or confidential at the time of disclosure and is confirmed as such in writing within fifteen (15) days of the disclosure. In the case of AdSmoke, Confidential Information includes the AdSmoke Software and the features and functionality of the AdSmoke Platform. Confidential Information does not include information that: (i) is or becomes generally known to the public through no fault of or breach of this Agreement by the receiving party; (ii) is rightfully known by the receiving party at the time of disclosure without an obligation of confidentiality; (iii) is independently developed by the receiving party without use of the disclosing party's Confidential Information; or (iv) the receiving party rightfully obtains from a third party without restriction on use or disclosure.
12.2 Use and Disclosure Restrictions. Each party shall not use the other party's Confidential Information except as necessary to exercise its rights or perform its obligations under this Agreement. Each party shall not disclose the other party's Confidential Information to any third party except to those of its employees, subcontractors, and advisers that need to know such Confidential Information for the purposes of this Agreement, provided that each such employee and subcontractor is subject to a written agreement that includes binding use and disclosure restrictions that are at least as protective of Confidential Information as those set forth herein. Each party will use all reasonable efforts to maintain the confidentiality of all Confidential Information of the other party in its possession or control, but in no event less than the efforts that party ordinarily uses with respect to its own proprietary information of similar nature and importance. The foregoing obligations will not restrict either party from disclosing Confidential Information of the other party: (i) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party to contest such order or requirement or (ii) on an as-needed, confidential basis to its legal or financial advisors. In addition, each party may disclose the terms and conditions of this Agreement: (a) as required under applicable securities regulations and (b) on a confidential basis to current or prospective investors or acquirers of such party.
12.3 Press Release. The parties, upon mutual agreement, may distribute a press release or public announcement regarding this Agreement. Neither party shall issue a press release or public announcement regarding this Agreement without prior written consent of the other party.
13.1 Relationship of the Parties. The parties are independent contractors with respect to each other. This Agreement does not constitute and shall not be construed as constituting a partnership or joint venture among the parties hereto, or an employee-employer relationship. No party shall have any right to obligate or bind any other party in any manner whatsoever, and nothing herein contained shall give, or is intended to give, any rights of any kind to any third parties.
13.2 Non-Solicitation. Publisher acknowledges that AdSmoke's employees and contractors are a valuable asset and are difficult to replace. Accordingly, during the Term and for a period of twelve (12) months afterward, Publisher will not directly solicit as an employee or independent contractor any of AdSmoke's employees or contractors.
13.3 Assignment. Neither party may assign any of its rights or obligations under this Agreement without the prior written consent of the other party, except that either party may assign its rights and obligations under this Agreement without the consent of the other party in connection with any merger (by operation of law or otherwise), consolidation, reorganization, change in control or sale of all or substantially all of its assets related to this Agreement or similar transaction. This Agreement inures to the benefit of and shall be binding on the parties' permitted assignees, transferees and successors.
13.4 Force Majeure. Except for payment obligations, neither party will be responsible for any failure or delay in its performance under this Agreement due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, internet or telecommunications failures, shortages of or inability to obtain labor, energy, or supplies, war, terrorism, riot, acts of God or governmental action, acts by hackers or other malicious third parties and problems with the Internet generally, and such performance shall be excused to the extent that it is prevented or delayed by reason of any of the foregoing.
13.5 Headings and Wording. Unless otherwise expressly stated in this Agreement, the words "herein," "hereof," "hereto," and "hereunder" and other words of similar import refer to this Agreement as a whole and not to any particular Article, Section, Subsection, or other subdivision. The words "include" and "including" shall not be construed or interpreted as terms of limitation. The words "day," "month," and "year" mean, respectively, calendar day, calendar month, and calendar year. Section headings are for reference purposes only, and should not be used in the interpretation hereof. No provision of this Agreement will be construed against either party as the drafter thereof.
13.6 Notices. All notices under the terms of this Agreement shall be given in writing and sent by registered mail, internationally recognized carrier, or facsimile transmission with machine confirmation or shall be delivered by hand to the addresses noted on the Order Form. All notices shall be presumed to have been received when they are hand delivered, or five business days of their mailing, or on the business day following the day of a successful facsimile transmission.
13.7 Amendments. An amendment of this Agreement shall be binding upon the parties so long as it is either in writing and executed by both parties or is presented by AdSmoke electronically via the AdSmoke Platform and accepted by Publisher by clicking on "I Accept" or similar language. No trade usage or other regular practice or method of dealing between the parties shall modify, interpret, supplement or alter in any manner the express terms of this Agreement.
13.8 Waiver. A waiver of any provision of this Agreement will only be valid if provided in writing and will only be applicable to the specific incident and occurrence so waived. The failure by either party to insist upon the strict performance of this Agreement, or to exercise any term hereof, will not act as a waiver of any right, promise or term, which will continue in full force and effect.
13.9 Construction. This Agreement shall be fairly interpreted and construed in accordance with its terms and without strict interpretation or construction in favor of or against either party. Each party has had the opportunity to consult with counsel in the negotiation of this Agreement.
13.10 Severability; Counterparts. If any provision, or portion thereof, of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, such determination will not impair or affect the validity, legality, or enforceability of the remaining provisions of this Agreement, and each provision, or portion thereof, is hereby declared to be separate, severable, and distinct. A waiver of any provision of this Agreement will only be valid if provided in writing and will only be applicable to the specific incident and occurrence so waived. This Agreement may be signed in counterparts. Each of them is an original, and all of them constitute one agreement.
13.11 Governing Law; Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the laws of the State of California, without reference to conflicts of laws principles. The parties agree that the federal and state courts in Santa Clara County, California will have exclusive jurisdiction and venue under this Agreement, and the parties hereby agree to submit to such jurisdiction exclusively.
13.12 Entire Agreement. This Agreement constitutes the complete, final and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes any and all prior or contemporaneous oral or written representations, understandings, agreements or communications between them concerning the subject matter hereof. Neither party is relying upon any warranties, representations, assurances or inducements not expressly set forth herein.
AdSmoke Service Participation: AdSmoke shall pay to Publisher in accordance with the terms and conditions of Schedule 4 to Exhibit A:
" 50% of the applicable Net Revenue for AdSmoke Advertisement impressions associated with U.S.-based end users (as determined by AdSmoke based on end user IP address) ("U.S. End Users").
" 50% of the applicable Net Revenue for AdSmoke Advertisement impressions associated with non-U.S. End Users.
Schedule 4 to Exhibit A
1.1 "Net Revenue" means the gross revenue actually collected by AdSmoke from Advertisers and Partners for AdSmoke Advertisements, less (i) any refunds to Advertisers and Partners;
1.2 "AdSmoke Advertisements" means Advertisements, sourced by or on behalf of AdSmoke, that are routed and/or served by the AdSmoke Platform to the Publisher Properties.
1.3 "AdSmoke Service" means AdSmoke's advertising service through which AdSmoke Advertisements are inserted within web sites, mobile properties and other online services and applications (and content therein) by the AdSmoke Platform.
2. ADSMOKE ADVERTISEMENTS.
2.1 Advertisement Sales. Publisher hereby grants AdSmoke the right to sell and have sold Advertisement inventory on the Publisher Properties and to insert AdSmoke Advertisements within such inventory during the Term, including the right to list such inventory in pitch materials to prospective Advertisers and to report such inventory as being part of AdSmoke's advertising network. In addition, Publisher hereby grants AdSmoke a nonexclusive license during the Term to use Publisher's trademarks and logos and images of the Publisher Properties in connection with exercising the foregoing right. AdSmoke is solely responsible for, and has final authority on, decisions related on how to sell Advertisement inventory, including packaging, pricing, promotional offers, and all other related deal terms and conditions. Publisher shall designate a representative that will serve as the point of contact on an ongoing basis with AdSmoke's account management team. If requested by AdSmoke, Publisher agrees to execute AdSmoke's standard form of traffic assignment letter and provide any other assistance and cooperation reasonably requested by AdSmoke relating to confirming the rights granted to AdSmoke hereunder.
2.2 Advertisement and Publisher Content. AdSmoke shall not knowingly insert Advertisements within the Publisher Properties or Content that contain or promote discrimination, illegal activities, hate speech, graphic violence, firearms, tobacco, illegal drugs, pornography, profanity, obscenity or sexually explicit material. Publisher shall promptly notify AdSmoke of any Publisher Properties or Content that promote alcohol or gambling.
3.1 Payment Amounts. Subject to the terms and conditions of this Agreement, AdSmoke shall pay to Publisher amounts calculated as set forth on the Order Form for the AdSmoke Service. Subject to the terms and conditions of this Agreement, AdSmoke shall pay to Publisher amounts calculated as set forth in any Supplemental Agreements (such amounts described above in this Section 3.1, collectively the "Publisher Amounts"). The Publisher Amounts constitute full payment by AdSmoke for AdSmoke Advertisements routed and/or served to the Publisher Properties. Each such payment shall be accompanied by a report that show in reasonable detail the basis for the payment made ("Publisher Report"). Publisher acknowledges and agrees that all payments to Publisher hereunder shall be based on the impression counts used by the applicable Advertisers to pay AdSmoke, and that the Publisher Reports are adjusted to reflect such counts following the end of each month. For the avoidance of doubt, all payments to Publisher hereunder are based on Advertisement requests from the Publisher Properties that are actually fulfilled with a AdSmoke Advertisement, except as expressly provided in this Agreement. All amounts received from activities AdSmoke deems to be fraudulent may be refunded to Advertisers in AdSmoke's sole discretion.
3.2 Payment Terms. AdSmoke agrees to pay Publisher within 45 days after the last day of the month in which AdSmoke received the applicable Net Revenue, provided that no payment will be issued for any amount less than $50 U.S. All unpaid earnings will rollover to the next pay period. To the extent AdSmoke elects to pay Publisher for an Advertisement campaign hereunder prior to AdSmoke receiving the applicable Net Revenue and AdSmoke does so based on AdSmoke's internal impression count, Publisher acknowledges and agrees that Publisher's account may be adjusted in the event that AdSmoke is subsequently paid by the applicable Advertiser based on a different impression count or in the event of bad debt. All payments will be made in U.S. dollars ($U.S.). Each party is responsible for paying any taxes, duties or fees relating to this Schedule 4 for which such party is legally responsible.
4. RESTRICTIONS. Publisher may not, and may not authorize or encourage any third party to: (i) use the AdSmoke Service in connection with any web sites, mobile properties or other online services or applications other than the Publisher Properties; (ii) generate fraudulent impressions of or fraudulent clicks on any AdSmoke Advertisements, including through repeated manual clicks, the use of robots or other automated tools or any other method that may lead to artificially high numbers of impressions, downloads, or clicks; (iii) edit, modify, filter, or change the order of the information contained in any AdSmoke Advertisement, or remove, obscure or minimize any AdSmoke Advertisement in any way; (iv) redirect an end user away from any web page accessed by an end user after clicking on any part of a AdSmoke Advertisement ("Advertiser Page"), provide a version of the Advertiser Page different from the page an end user would access by going directly to the Advertiser Page, or intersperse any content between the AdSmoke Advertisement and the Advertiser Page; or (v) display any Advertisements on any error page, registration, or "thank you" page (e.g., a page that thanks a user after that user has registered with the applicable web site). AdSmoke may suspend Publisher's use of the AdSmoke Service and/or terminate this Agreement immediately should Publisher violate the foregoing provisions of this Section 4. In addition, Publisher acknowledges and agrees that it may not use the AdSmoke Service in connection with video Content that automatically starts to play upon page load or otherwise without direct user request, Content that plays without the audio turned on. Publisher agrees to provide as much advance notice as is reasonably practicable (but in no event less than fifteen (15) days' notice) regarding any material changes to the nature or design of any Publisher Property, including without limitation changes to the placement of Advertisement inventory, the type of Content, or the target audience.
5. DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH HEREIN, ADSMOKE MAKES NO GUARANTEE REGARDING THE NUMBER, QUALITY, OR CONTENT OF ANY ADVERTISEMENTS OR THE TIMING OF DELIVERY OF SUCH ADVERTISEMENTS. ADSMOKE RESERVES THE RIGHT AT ALL TIMES, AT ITS DISCRETION, AND WITHOUT NOTICE, TO REMOVE OR REFUSE TO DISTRIBUTE ANY ADSMOKE ADVERTISEMENTS. ADSMOKE DOES NOT WARRANT THE RESULTS OF USE OF THE ADSMOKE SERVICE. PUBLISHER ACKNOWLEDGES THAT ADSMOKE MAY MODIFY OR SUSPEND THE ADSMOKE SERVICE AT ANY TIME IN ITS SOLE DISCRETION AND WITHOUT NOTICE.