Shoogloo Mobile operates a range of services related to Mobile Advertising allowing mobile Publishers to transfer visitors from their own publisher mobile websites / mobile apps to the merchant and thereby earn commission according to the terms of the relevant service. Shoogloo Mobile works as a third party tracking system and manages amerchant’s mobile publisher programs. Shoogloo Mobile will recruit various mobile publishers and they will join the merchant’s programs once approved as a mobile publisher on Shoogloo Mobile. Forall purposes, publishers will interact with Shoogloo Mobile. Oncethe customers through publisher’s mobile websites / mobile apps make the desired action of impressions, clicks or sale or installsor whatever action defined in agreement, they are tracked from end to end and reported to publishers via special logins provided. Once the sales are validated, Shoogloo Mobile will pay the Publishers after the payment is received from the merchant.
Shoogloo Mobile wishes to offer to the Company an opportunity to be a merchant/advertiser/client in respect of Services (as defined here in after) offered by Shoogloo Mobile.
Company wishes to become a merchant in respect of the Services offered by Shoogloo Mobile on the terms and conditions contained in this Agreement.
Definitions and Interpretation
1.1. In this Agreement, unless the context otherwise requires, the following words and expressions shall have the following meanings:
Company: here refers to merchant or customeror client or an advertiser.
Publisher: means the owner or operator of a mobile websites / mobile apps or any company providing mobile services, who has an agreement with Shoogloo Mobile to participate in the Services.
Publisher Media Cost: means consideration payable by the Company to Shoogloo Mobile under this Agreement which includes cost per acquisition, cost per installs, cost per leads, cost per impression, cost per clicks or any other delivery method / cost agreed between Shoogloo Mobile and the Company, which Shoogloo Mobile subsequently pays onto the Publisher.
Publisher Program: means one of the Services where individual advertising is placed with Publishers.
CPA Deliverables: deliverables sold on a cost per acquisition basis.
CPI Deliverables: deliverables sold on a cost per Install basis.
CPC Deliverables: deliverables sold on a cost per click basis.
CPL Deliverables: deliverables sold on a cost per lead basis.
CPM Deliverables: deliverables sold on a cost per thousand impression basis.
Deliverable or Deliverables: the inventory delivered by ShooglooMobile (e.g., impressions, clicks, or Other desired actions).
IO: a mutually agreed insertion order that incorporates these Terms, under which Shoogloo Mobile will deliver Ads on Sites for the benefit of company.
Website/Mobile Apps: means any mobile website/mobile app owned oroperated by a publisher and on which the Services are presented.
Confirmation Criteria: means the criteria, as agreed in writing between Shoogloo Mobile and the company and communicated to Publishers, that atransaction must meet the requirements to be confirmed. For Clarity,in this Agreement a transaction is a booking or sale (conversion)tracked against the tracking code agreed between Shoogloo Mobile and the Company. This booking is irrespective of the number of sectors orpassengers or tickets in the transaction and will be treated asconfirmed only when a successful ticket is issued in the Company reservation system and is valid for travel.
Confirmation Period: means the period required to assess whether a transaction meets the Confirmation Criteria.
Confirmed Transaction: means a transaction that meets the Confirmation Criteria.
Contact Person: means one or more persons appointed by the Company with authority to consider and approve or reject publisher orpotential publishers and to terminate the Company’s cooperation with any publisher.
Content: means the content or appearance of any web page providing, describing or referring to the Services as may be provided to Publishers by Shoogloo Mobile from time to time.
Merchant Account: means the account of the Company on a secure area of the Shoogloo mobile website accessible only by the Company and Shoogloo Mobile.
Merchant Website: means the website of the Company through which the Product is advertised or sold.
Tracking: means the system developed by Shoogloo mobile to track transactions generated on the program and record such detail as is required to calculate the publisher Media Cost and effectively manage each programed as implemented on each publisher program as defined in Schedule 1
Product: mean the product(s) or services of the Company marketed [or to be marketed]through the Services.
Product Content: means any product specific content (whether editorial banners or text links) provided by the Company to be used by Publisher to present the Products on the Publisher mobile websites/ mobile apps. This includes Product Feeds as appropriate.
Product Feed: means an electronic file provided and updated by the Company including such details of the Products as are required toallow Publisher to integrate these within the Publisher mobile websites / mobile apps. The format and timing of the provision of such feeds shall be as agreed between the parties from time to time.
Services: means the range of services detailed in which the Company will participate together with such services as Shoogloo Mobile may make available to the Company from time to time and as the Company may take up by agreement in writing in the form of an Insertion Order.
Validation Criteria: means the criteria, as agreed in writing between Shoogloo Mobile and the Company and communicated to Publishers, that a transaction must meet to be validated.
Validated Transaction: means a transaction that meets the Validation Criteria.
Provision of Services
2.1. In consideration of the Publisher Media Cost, Shoogloo Mobile will provide to the Company Services on the terms Contained in this Agreement.
2.2. The Company shall access its Merchant Account on a regular basis and shall at all times provide Accurate and up to date information in respect of Products for 3.3. Inclusion by Shoogloo Mobile as appropriate in the Content. The Company shall ensure at all times that any variable elements of such information (e.g. prices) are complete and accurate and are not misleading at any time.
2.3. The Company shall indemnify and keep indemnified Shoogloo Mobile against all and any claims, damages, losses or liability directly arising as a result of incomplete, inaccurate or misleading data or information relating to its own Product Content and provided by the Company, its servants or employees. The Indemnity contained here in will not apply in the event the Product Content has been, altered, modified etc. by Shoogloo Mobile or its Publishers.
2.4. Shoogloo Mobile shall indemnify and keep indemnified the Company, its directors, employees and agents against all and anyclaims, damages, losses or liability directly arising as a result of nonperformance under this Agreement or breach of the terms of this Agreement by Shoogloo Mobile, its directors, servants, agents and employee’s.
2.5. If the Company is at any time unable to access the Merchant Account for the purposes of complying with its obligations under clause 2.2, it shall immediately notify Shoogloo Mobile. Shoogloo Mobile shall use its reasonable endeavors to resolve any such problemas soon as practicable provided that where in the reasonable opinion of Shoogloo Mobile the problem cannot be rectified within 48 hours, the Company consents to the Products being removed from the Services until such time as the Company’s access to the Merchant Account is resolved.
2.6. Shoogloo Mobile cannot warrant usual functionality of the Merchant Account or Services at all times, but will use reasonable endeavors to ensure that downtime is kept to a minimum.
2.7. Shoogloo Mobile reserves the right to alter or change the Content from time to time, save that any change to the Product Content will not be made without the prior written consent of the Company.
Media Cost/Advertisement Cost
3.1 The Company shall pay to Shoogloo Mobile the Publisher Media Cost in relation to all Service as set out in the Insertion Order. Except where the Company has agreed to different terms withan Publisher, in which situations the terms of the agreement with the Publisher will apply, the Company may alter those elements of the Publisher Media Cost, Validation Criteria or Confirmation Criteria,that are determined by the Company, at any time subject to giving Shoogloo Mobile at least 14 days’ notice, such changes always totake effect from the beginning of a calendar month.
3.2. Where Shoogloo Mobile tracking code is used, the Company shall provide to Shoogloo Mobile such assistance as it shall require enabling it to set up Shoogloo Mobile racking on the Merchant Website to facilitate monitoring of the performance (sale/conversion) of the Services. The Company is responsible for maintaining any elements of Shoogloo Mobile Tracking that are included on the Merchant Website and ensuring that they are not removed or altered in anyway without the prior agreement of Shoogloo Mobile. The Company shall indemnify and keep indemnified Shoogloo Mobile against all and any claims,damages, losses or liability arising directly as a result of any problem with tracking caused by the Company’s actions.
3.3. Where Shoogloo Mobile Tracking is not used the Company is responsible for ensuring the accurate reporting of all transactions generated on each program in sufficient detail to allow the accurate calculation of Commission. The Company shall indemnify and keep indemnified Shoogloo Mobile against all and any claims, damages,losses or liability howsoever arising whether directly or indirectlyas a result of any a failure by the Company to provide such accurate reporting.
3.4. Subject to the process agreed between the Parties for the validation of transactions, the Company shall validate and pay invoices within 30 days. Such that in the case of a program that is Shoogloo Mobile Tracked (with validation) where 5 days are allowed for validation the Company shall pay the invoice within 25 days ofthe invoice date where no validation is required the Company shall pay within 30 days of the invoice date.
3.5. For the avoidance of doubt, the Company shall always pay invoices no later than 30 days after invoice date and in the event that the Company does not provide validations within the agreed time frame, Shoogloo Mobile shall be able to assume that all transactions are valid and issue an invoice on this basis.
3.6. If the period for invoice payment exceeds 30 days, Shoogloo Mobile shall be entitled to interest on the sum overdue until paymentat a rate of 2% compounded per month.
3.7. Shoogloo Mobile shall keep such records as are adequate to allow calculation by it of the Publisher Media Cost and shall allow the Company access on reasonable notice in writing to inspect such records at the offices of Shoogloo Mobile during usual business hours.
3.8. In the event of any dispute regarding the amount of any Publisher Media Cost due will in the first instance be referred to the Contact Person who shall negotiate in good faith with Shoogloo Mobile’s appointed representative with a view to resolving such dispute. If the dispute is not resolved within one week, the matter shall be escalated to the next senior management level within the parties
Publisher approval and monitoring
4.1 Where the Company takes Publisher Program, the following provisions shall apply:
4.1.1 Shoogloo Mobile shall provide in the Merchant Account information concerning any Publisher or applicant Publisher applying to participate in the Publisher Program together with the applicant’s URL. Company will be the final authority in deciding which Publisher should be accepted in the Publisher Program.
4.1.2 The Company shall appoint a Contact Person and the Company shall inform Shoogloo Mobile of the name(s) and contact details ofits Contact Person. The Company is solely responsible for ensuring that a Contact Person is available at the Company between 10.00-18.00IST on working days and that any changes of such person(s) or their email addresses are promptly communicated to Shoogloo Mobile.
4.1.3 The Contact Person shall check applications to become a Publisher in the Merchant Account at least twice a week. The Company shall inform Shoogloo mobile of the rejection of any application to become a Publisher within thirty (30) business days from the date ofthe application. In the absence of such notification the application shall be deemed to have been accepted by the Company.
4.1.4 The Company is entitled to terminate the cooperation with any Publisher at any time with immediate effect. Such termination must bemade through the Merchant Account by the Contact Person. At the request of Shoogloo Mobile, the Company shall forthwith by e-mail furnish Shoogloo Mobile with a short explanation of the reasons for such termination.
4.1.5 Shoogloo Mobile agrees to put the Company’s details into Shoogloo Mobile’s data system and continuously to supervise, verifyand control the function of the links and e-mail addresses andrandomly to monitor and view the Publisher’s mobile Websites/mobile App to the extent Shoogloo Mobile deems necessary.
4.2 The Company gives Shoogloo Mobile the right to conclude agreements with Publisher wishing to join the Services on such terms as determined by the Company.
4.3 The Company may run activity with Shoogloo Mobile in multiple territories where both parties operate under this Agreement. Additional territories or commissions agreed for an individual Publisher outside the normal commission structure for Publisher maybe agreed under a supplementary Insertion Order (IO).
Intellectual Property Rights and Confidentiality
5.1. Subject to Clause 5.3 here in below, Shoogloo Mobile owns all copyrights, trademarks, intellectual property rights, know-how or any other rights connected with the Services, including but not limited to the software necessary for the Service provided by Shoogloo Mobile and the information that Shoogloo Mobile collects about Publisher.The Company, by this Agreement, acquires no rights or licenses whatsoever connected with the Services and the software necessary for the Services or Shoogloo Mobile other than that explicitly set out in this Agreement.
5.2. Shoogloo Mobile acknowledges and agrees that the copyright inall the Product Content, advertisements, Content, texts, images, banners etc. for all the work originated under this Agreement by Shoogloo Mobile or provided by the Company shall be the exclusive property of the Company.
5.3. Shoogloo Mobile acknowledges the exclusive ownership and intellectual property rights (IPR) in the name, service marks, logos, trademarks and/or any artwork, information/inputs furnished by the Company to Shoogloo Mobile to satisfactorily perform its obligations under this Agreement, shall remain at all times with the Company.
5.4. Company allows Shoogloo Mobile to use its name, trademark and logo if required only in relation to the provision of Services under this Agreement. Shoogloo Mobile undertakes that it shall not infringe or cause to be infringed upon through the Publisher or the third party, the IPR of the Company including but not limited to seeking the registration of trade mark(s), logo(s) identical or deceptively similar to the trade mark(s), logo(s) owned by the Company and registering any domain which is identical or similar to the domain of the Company without the prior written consent of the Company.
5.5. Upon and following the termination of this Agreement, Shoogloo Mobile shall cease to use the Company name, service marks, trademarks, logos and all documents and copies containing the said trademarks, service marks logos, IPR etc. and other materials containing or incorporating the information which are in its possession, and return such documents, copies and other materials, without retaining a copy there of in any form or destroy the same, as requested by the Company and followed by a confirmation to that effect.
5.6. Neither party shall reveal the trade secrets of the other party nor use such secrets except for the purpose of fulfilling its obligations under this Agreement. The parties shall take all precautions reasonably necessary to prevent an unauthorized disclosure or use of such trade secrets by employees or to third parties.
5.7. During the term and thereafter, each party agrees with respect to Confidential Information (as defined below) received from the other that it shall (a) not use such Confidential Information except for the purpose it was disclosed under this Agreement; (b) use the same means it uses to protect its own confidentially proprietary information, but in any event not less than reasonable means, to prevent disclosure and to protect the confidentiality of such Confidential Information and (c) not disclose it without the other party’s prior written permission. For purposes of this Agreement, the term “Confidential Information” shall mean all information disclosed to it by the other concerning the disclosing party’s business, finances, technology, prices, products, Services, the termsand conditions of this Agreement, User personal data, Product Feed,Content, Product Content or any other information designated by the disclosing Party in writing as confidential or that, under the circumstances surrounding receipt, receiving party should reasonably know is treated as confidential, provided, however, that the foregoing restrictions shall not apply to Confidential Informationthat: (a) is or becomes generally known or available by publication,commercial use or otherwise through no fault of the receiving party; or (b) is information a party is required to disclose by virtue of acourt or administrative order. The confidentiality obligations contained herein, shall survive the expiration / or early termination of this Agreement.
5.8. Company and Shoogloo Mobile agree in particular not to communicate details of its trading terms with Shoogloo Mobile to any Publisher using the Publisher Program or any third party.
Term and Termination of Services
6.1. This Agreement shall come into effect from the date of signing of the Agreement and shall be valid until terminated by either Party in accordance with the Terms of this Agreement.
6.2. Either party shall be entitled to terminate this Agreement inrelation to any one or more of the Services by giving to the other 1 month’s prior notice in writing. It should be noted that in cases there is a cookie period of more than 30 days, the same will be honored by the company for all sales / actions arising of the cookie duration sales / actions.
6.3. Shoogloo Mobile reserves the right to withdraw from the Company with immediate effect any one or more of the Services in the event of Publisher Media Cost payment due under this Agreement remains outstanding for more than 60 days.
6.4. Either party shall be entitled to terminate this Agreement forthwith if
6.4.1. The other party commits any breach of any of the provisions of this Agreement and in the case of a breach capable of remedy, fails to remedy the same within 30 days after receipt of a written notice giving full particulars of the breach and requiring it to be remedied;
6.4.2. An encumbrance takes possession or a receiver or trustee is appointed over substantial property or assets of that other party;
6.4.3. That other party makes any voluntary arrangement with its creditors or becomes subject to an administration order;
6.4.4. That other party goes into liquidation (except for the purposes of amalgamation or reconstruction and in such manner that the company resulting there from effectively agreed to be bound by or assume the obligations imposed on that other party under this Agreement);
6.4.5. That other party ceases to carry on business
6.5. Termination of this Agreement shall not affect any rights or remedies of each of the parties, accrued up to the effective date of termination.
6.6. Notwithstanding the above, either party will have the right to terminate this Agreement without assigning any reason by giving thirty (30) days prior notice in writing to the other party.
6.7. Upon early termination or expiry of this Agreement, Shoogloo Mobile shall immediately remove from its own websites all material or information, logos, names which indicates its existence orassociation with the Company names/websites it had created for the purpose for this Agreement by using the name/brand keyword identical or deceptively similar to the Company name, brand, log or Product(s) of the Company and confirm the same in writing.
7.1. This Agreement is on a “principal to principal” basis and the parties are independent of each other and nothing contained here in is intended to or shall be deemed to create any partnership, joint venture, employment or relationship of principal and agent between the parties here to.
7.2. Neither party will be liable for any failure to perform any obligation here under, or from any delay in the performance there of, due to causes beyond its control, including without limitation industrial disputes of whatever nature, acts of God, public enemy, acts of government, or other calamity, embargo, strikes whether legal or illegal, or any other condition beyond the reasonable control ofthe parties affecting production or delivery in any manner. The affected party shall take all reasonable steps to avoid or remove such causes of non-performance and immediately continue performance whenever such causes are removed. A party whose performance is affected by a force majeure condition shall notify the other party immediately and in writing upon the occurrence of the event.
7.3. In no event shall either party be liable to the other party, or any third person for any special, indirect, incidental, consequential, exemplary or punitive damages of any kind (including without limitation lost profits, lost savings, loss of data, loss of business opportunities) arising out of or in connection with this Agreement, the Services, whether based in contract, tort (including without limitation negligence) or otherwise, even if the party providing the resource or Service, or has been advised of the possibility of such damages
7.4. Shoogloo Mobile shall use commercially reasonable efforts to avoid the placement of Product, Product Content etc. as provided by the Company in any context that harms the goodwill or reputation of the Company or that disparages or brings the Company into disrepute, including, but not limited to web sites that contain indecent, illegal, misleading, harmful, abusive, harassing, libelous, defamatory, or other offensive materials.
7.5. Any notice or communication under or in connection with this Agreement will be given or sent by mail, courier or personal delivery at the respective address of the parties set out in the Insertion Order or at any other revised addresses which may be notified, in writing, against clear acknowledgement by the parties at a later date.
7.6. If any provision of this Agreement or part there of should to any extent be or become invalid or unenforceable, the parties shall agree upon any necessary and reasonable adjustments of the Agreement in order to secure the interests and objectives of the parties prevailing at the time of the Agreement.
7.7. Neither party shall assign its rights or obligations under this Agreement in whole or in part to any third party without the prior written consent of the other.
7.8. No person other than the parties to this Agreement shall have any rights under it.
7.9. The failure or delay by either party to exercise or enforce any right under this Agreement shall not operate as a waiver of that right or preclude the exercise or enforcement of it at any time or times thereafter.
7.10. This Agreement shall be governed by and construed in all respects in accordance with the laws of India and any dispute shallbe subject to the exclusive jurisdiction of the New Delhi courts.
7.11. In this Agreement, clause headings are purely for ease of reference and do not form part of or affect the interpretation ofthis Agreement.
7.12. This Agreement may be executed in two (2) counterparts, eachof which, when considered together, shall constitute one (1) original Agreement between the parties.
The method of tracking for each program will be agreed in writing between the Company and Shoogloo Mobile prior to the launch of that program.
Depending on the agreed method of tracking the following processes will apply:
Shoogloo Mobile Tracking – Validation Required
1.1 Shoogloo Mobile shall within 7 business days from the end of each calendar month provide to the Company a statement showing details of such transactions completed in that month as give rise to Publisher Media Cost payments under this Agreement. The Company shallwithin 7 business working days of receipt of the statement provide to Shoogloo Mobile a report detailing the Validated Transactions. Onrequest the Company will provide details of the reasons why transactions were not validated.
1.2 Shoogloo Mobile will upon receipt of such acceptance forthwith render an invoice to the Company for the Publisher Media Cost due and the Company will make payment in accordance with the payment terms
Shoogloo Mobile Tracking – No Validation required
2.1 Shoogloo Mobile shall within 5 working days from the end of each calendar month provide to the Company an invoice for Publisher Media Cost due in that calendar month. The Company shall within 7 working days of receipt of the invoice provide to Shoogloo Mobile confirmation of its acceptance of the same.
2.2. The Company will make payment in accordance with the payment terms
Shoogloo Mobile Tracking – Confirmation Period
3.1 Shoogloo Mobile shall within 5 business days from the end of each calendar month provide to the Company a statement showing details of such transactions completed in that month as give rise to Publisher Media Cost payments under this Agreement. The Company shall within 7 business working days after the Confirmation Period provide a report detailing the Confirmed Transactions. On request the Company shall provide details of the reasons why transactions were not confirmed.
3.2 Shoogloo Mobile will upon receipt of such report forthwith render an invoice to the Company for the Publisher Media cost payments due and the Company will make payment in accordance with the payment terms