The following DOJOMOJO Network Terms ("Terms") govern the implementation and use of the products, services, and technology made available by DOJOMOJO to your company, the Partner.
1.1 Relationship of the Parties: The Partner appoints DOJOMOJO as an independent contractor during the Term to provide the Services set out in the Service Schedule, in accordance with the Agreement. DOJOMOJO will be the Partner's provider of Marketplace Services during the Term. DOJOMOJO may assign any of its rights and delegate any of its duties under this Agreement to one or more of its subsidiaries.
1.2 Additional Services: Partner may elect to include additional TMS in the Services by email or other written confirmation agreed by Partner and DOJOMOJO from time to time.
1.3 Integration of the DOJOMOJO Software. Promptly after the date of this Agreement DOJOMOJO will provide Partner with access to the DOJOMOJO Software and related documentation. Partner will ensure that the DOJOMOJO Software code, as updated and released from time to time, is correctly included on the Partner Pages during the Term, as necessary to permit Users to interact with the Services.
1.4 TMS Fees: Transaction Marketing Services "TMS" Fees, if any, shall be charged by DOJOMOJO and paid by Partner in accordance with the Services Schedule.
1.5 TERMS SPECIFIC TO MARKETPLACE SERVICES. Marketplace Services will be available to Partner for use in conjunction with certain other Transaction Marketing Services. To the extent that Partner avails itself of Marketplace Services, the following terms apply:
(a) Managing Marketplace Services via online portal or account rep. Partner shall activate and manage the Marketplace Services through its online partner portal provided by DOJOMOJO, or if applicable, through a DOJOMOJO account manager. The partner portal shall be designed and administered by DOJOMOJO.
(b) Serving Content into the Partner Content Areas. When Marketplace Services are active, the DOJOMOJO platform will serve Promotional Content into the Partner Content Areas via proprietary algorithms. Partner will not reduce or restrict Partner Content Areas available for Marketplace Services without DOJOMOJO's approval.
(c) Bidding by Promoters. Marketplace Services involve a market mechanism, where all available Promotional Content is evaluated on a number of factors, including the maximum bid set by the Promoter and relevance to the particular individual User, to determine which Promotional Content should be placed. Although the intent is to generate revenues from Promoters, DOJOMOJO does not warrant or represent that such revenues will be the maximum amount producible, for each placement or in the aggregate, or guarantee any minimum level of performance or of revenues.
(d) Revenue Share Fee: DOJOMOJO will invoice and collect any charges paid by Promoters on its own account. DOJOMOJO shall pay to Partner a portion of such charges equal to 80% of the Net Receipts attributable to Promotional Content served into the Partner Content Areas (the "Partner Revenue Share Fee").
1.6 Reports: The Parties will provide each other with accurate operational reports as reasonably requested from time to time.
1.7 Support: DOJOMOJO will provide reasonable ongoing assistance to Partner in regard to technical, administrative and service-oriented issues relating to Partner's use of the DOJOMOJO Platform.
1.8 Invoicing: The Partner authorizes DOJOMOJO to generate a recipient created invoice ("RCI") based on its accounting for the Partner Revenue Share Fee and Referral Bonus (defined below), if any, within ten (10) days following the end of each calendar month directly following the month of activity covered by the invoice. TMS Fees incurred by the Partner, if any, may be applied to and offset any Partner Revenue Share Fee.
1.9 Estimation of cleared funds: To facilitate the process of paying the Partner earlier, DOJOMOJO may estimate the cleared funds prior to the receipt of all funds. If done, the funds will be reconciled on a quarterly basis.
1.10 Terms of Payment: DOJOMOJO will pay any net amounts due to Partner as shown on any invoice within forty-five (45) days of the end of each calendar month in which such invoice is created.
1.11 Disputes: Where there is a bona fide dispute between the Parties as to any amounts payable by one Party to the other, such disputed amounts may be withheld so long as each Party is working reasonably to resolve such dispute. Any undisputed amounts must be paid without delay as per the agreed payment terms.
1.12 Taxes: Where specific taxes are due and payable in respect of TMS Fees, Referral Bonus or the Partner Revenue Share Fee, Partner shall be responsible for such taxes. DOJOMOJO may make tax withholdings from amounts owed to Partner to the extent required by law.
1.13 Other Costs: Unless otherwise provided in this Agreement, each party shall retain its own revenues and bear its own costs and expenses in connection with its activities performed under this Agreement.
2.1 Term: The Agreement will commence on the Effective Date and will remain in effect for the initial term of three years ("Initial Term "). After the Initial Term, the Agreement shall auto-renew for successive three-year periods (each a "Renewal Term ") unless written notice of an intent to opt out of such renewal is provided by either party at least thirty (30) days before such renewal date. The Initial Term and any and all Renewal Terms shall collectively be referred to herein as the "Term ".
2.2 Termination: Either Party may terminate this Agreement with immediate effect by giving written notice to the other Party in the event that:
(a) the other Party materially breaches the provisions of this Agreement; provided that if such breach is capable of remedy, no such termination shall be effective unless and until the breaching party fails to remedy the breach within thirty (30) days after receiving notice from the non-breaching Party demanding it to do so; or (b) the other party suffers an Insolvency Event.
2.3 Effect of Termination. Any termination pursuant to clause 2.2 will be without any liability or obligation of the terminating party, other than with respect to any breach of the Agreement prior to termination. Termination does not affect any accrued rights of either party. The provisions of clauses 3 through 8 of this Agreement will survive the expiration or termination of the Agreement for any reason.
3.1 Partner warranties: Partner represents and warrants to DOJOMOJO as at the date of this agreement that:
(a) Partner is duly organized, validly existing and in good standing, and has the authority to carry on its business as conducted;
(b) the execution, delivery and performance of this Agreement have been duly authorized by Partner and this Agreement constitutes a valid and binding agreement of Partner; and
(c) any necessary software, systems or equipment utilized in connection with the Partner Content Areas are owned, validly licensed or otherwise legally controlled by the Partner.
3.2 DOJOMOJO warranties: DOJOMOJO represents and warrants to Partner as at the date of this agreement that:
(a) DOJOMOJO is duly organized, validly existing and in good standing, and has the authority to carry on its business as conducted;
(b) the execution, delivery and performance of this Agreement have been duly authorized by DOJOMOJO and this Agreement constitutes a valid and binding agreement of DOJOMOJO.
3.3 Partner Page. Partner manages and controls the related landing page, and Partner retains responsibility for the continuing performance, accuracy, design, layout, of the Partner Page. From time to time, Partner may choose to redesign or modify the organization, structure, specifications, arrangement, format, "look and feel," navigation, functionality, guidelines, and/or other elements of the Partner Page.
3.4 No interference: Partner will not intentionally do anything that would interfere, impede, or alter the ability of DOJOMOJO to provide Services. Unless expressly authorized in writing by DOJOMOJO, Partner may not enter into any type of arrangement with a third party where that third party receives payments made to Partner under the Agreement or other financial benefit in relation to the Services.
3.5 DOJOMOJO Platform: Partner acknowledges that DOJOMOJO is the owner of the DOJOMOJO Platform, including the DOJOMOJO Software and any related elements, and DOJOMOJO retains responsibility for the design, layout, hosting, and maintenance of the DOJOMOJO Platform, including the DOJOMOJO Software and any related elements. From time to time, DOJOMOJO may choose to redesign or modify the organization, structure, specifications, arrangement, format, "look and feel," navigation, functionality, guidelines, and/or other elements of the DOJOMOJO Platform, including the DOJOMOJO Software and any related websites at any time, and may suspend or stop a Service altogether. In the event any Service is suspended or cancelled, DOJOMOJO will refund to Partner any prepaid TMS Fees not yet earned.
3.6 Other Partner Covenants
(a) Partner will comply, and cause its employees, agents and subcontractors to comply, in all material respects, with all laws, rules and regulations applicable to Partner's performance of its obligations under this Agreement;
(b) Partner will not use the Services or any User information generated thereby to:
(i) send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes or any other form of duplicative or unsolicited messages, whether commercial or otherwise, or to send any defamatory, libelous, threatening, racist or obscene messages or messages that violate a User's right to privacy or a right of publicity; or
(ii) violate any laws or regulations specific to the markets in which it operates, including those related to spamming, junk mail or other related laws or regulations prohibiting or discouraging unsolicited mail.
(c) Partner will not provide any material to DOJOMOJO which infringes the intellectual property rights of, or violates any agreement with, any third party.
4.1 Ownership by DOJOMOJO: Partner acknowledges and agrees that as between Partner on the one hand, and DOJOMOJO and its Affiliates on the other, DOJOMOJO and its Affiliates own all right, title and interest in the DOJOMOJO Platform and the DOJOMOJO's Brand Features. The Partner agrees that all intellectual property rights and interests in innovations relating to DOJOMOJO Platform and the Services (e.g. or suggested improvements) shall be assigned to DOJOMOJO and be DOJOMOJO's sole property, and Partner agrees to execute any instruments of assignment reasonably requested by DOJOMOJO to effectuate the same.
4.2 No acquisition of IP rights: Other than as expressly set out in the Agreement, neither Party has or will acquire any right, title or interest in any intellectual property rights owned or licensed by the other Party.
4.3 Limited license to Partner: DOJOMOJO grants the Partner a royalty free, non-exclusive, non-sublicensable license to use the DOJOMOJO Software and portal as necessary to enable the Partner to interface with the DOJOMOJO Platform and use and enjoy the benefit of the Services. Except for the foregoing license, Partner has no other rights in the DOJOMOJO Platform and may not modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit the DOJOMOJO Platform in any manner. Upon the expiration or termination of this Agreement, Partner will cease use of the DOJOMOJO Brand Features and interfacing with the DOJOMOJO Platform and will promptly return all related documentation to DOJOMOJO or destroy all copies thereof in its possession or control.
4.4 Limited license to DOJOMOJO: Partner grants to DOJOMOJO a non-exclusive, royalty-free, worldwide, limited license to use the Partner Brand Features for display as part of the Services, on DOJOMOJO websites and any other marketing or promotional material prepared by DOJOMOJO or its Affiliates and to advertise the availability of the Services and its integration into the Partner Service. Upon the expiration or termination of this Agreement, DOJOMOJO will cease using the Partner Brand Features.
5.1 Privacy: DOJOMOJO will ensure that any collection, processing, use, disclosure and transfer of Personal Information by DOJOMOJO or any of DOJOMOJO's third party suppliers, in connection with the performance of DOJOMOJO's obligations under this Agreement, complies with all applicable laws, rules and regulations in the primary country of the Partner.
5.4 Confidentiality: Each Party will keep this Agreement and the Confidential Information of the other party confidential and use it only for the purposes of performing its obligations under this Agreement.
5.5 Definitio . For the purposes of this Agreement, "Confidential Information" means this Agreement, the Partner Data and the DOJOMOJO Data, the DOJOMOJO Platform, the Partner Service, all information about the disclosing party's business or activities that is proprietary and confidential, which shall include all business, financial, technical and other information of a party marked or designated by such party as "confidential" or "proprietary" at the time of disclosure.
5.6 Exclusions. Confidential Information will not include information that (i) is in or enters the public domain without breach of this Agreement, (ii) the receiving party lawfully receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation, (iii) the receiving party rightfully knew prior to receiving such information from the disclosing party or (iv) the receiving party develops independently of any information originating from the disclosing party.
5.7 Restrictions and Disclosure: Each Party agrees (i) that it will not disclose to any third party or use any Confidential Information disclosed to it by the other except as expressly permitted in this Agreement and (ii) that it will take all reasonable measures to maintain the confidentiality of all Confidential Information of the other Party in its possession or control, which will in no event be less than the measures it uses to maintain the confidentiality of its own information of similar importance. Notwithstanding the foregoing, each Party may disclose Confidential Information (i) to the extent required by a court of competent jurisdiction or other governmental authority or otherwise as required by law or (ii) on a "need-to-know" basis under an obligation of confidentiality to its legal counsel, accountants, banks and other financing sources and their advisors.
5.8 Injunctive Relief. Each Party acknowledges that any material violation by a Party of the rights and obligations provided in this clause 5 may result in immediate and irreparable injury to the other party, and hereby agrees that the other party may be entitled to seek immediate temporary, preliminary, and permanent injunctive relief against any continued violations upon adequate proof, as required by applicable law.
6.1 Disclaimers. None of DOJOMOJO, Partner or their respective Affiliates makes any representations or warranties, express or implied, except for the express representations and warranties in clause 3. DOJOMOJO and Partner expressly disclaim any and all other representations and warranties, express or implied, regarding the DOJOMOJO Platform or Partner Service, including without limitation any implied warranties of merchantability, fitness for a particular purpose, non-infringement, or implied warranties arising from course of dealing or course of performance.
DOJOMOJO will have no liability for any claim based on (i) any use of the DOJOMOJO Platform, DOJOMOJO Software or the Services other than as permitted by this Agreement; or (ii) the combination of any DOJOMOJO Platform with any product, technology, data or materials, if the DOJOMOJO Platform, alone, would not have resulted in such infringement.
7.2 Indemnity by Partner:
(a) Partner indemnifies, defends and holds harmless each of DOJOMOJO, its Affiliates, its directors, servants and agents both jointly and severally from and against any loss, expense, including reasonable attorney fees and expenses, damages, or liability reasonably incurred or suffered by DOJOMOJO, its directors, servants and agents arising from any claim, demand, action, suit or proceedings brought by a third party in relation to any Partner-supplied content, data, product or service with which the DOJOMOJO Platform integrates, or receives or transmits data from or to, infringes a copyright, patent, or misappropriates the proprietary trade secret of any third party.
(b) Partner agrees that it may not, without DOJOMOJO's prior written consent, enter into any settlement or compromise of any claim that results in any admission of liability or wrongdoing on the part of DOJOMOJO.
8.1 Limitation of liability: Other than with respect to liability arising under an indemnity, to the fullest extent permitted by law, each Party's liability to the other for all loss or damage suffered or incurred by the other Party in connection with this Agreement (including all loss arising from any breach of this Agreement, negligence or any breach of statute) is limited so that neither party will under any circumstances be liable to the other Party for any indirect or consequential loss, or any loss or corruption of data or loss of profit. Other than with respect to liability arising under an indemnity, any liability arising under this Agreement is limited to the amount of the Revenue Share Fee for the preceding one (1) month prior to the accrual of the claim. The parties agree that the foregoing represents a fair allocation of risk hereunder.
8.2 Applicability of limitations of liability: The limitations and exclusions of liability in this clause 8 will not apply to any loss or damage arising from any breach of confidentiality, breach of privacy, infringement of Intellectual Property Rights or any injury or death .
In this Agreement, the following words and phrases have the following meaning, unless expressly agreed otherwise:
"Affiliate means any entity that directly or indirectly controls, is controlled by, or is under common control with such party (i.e. having >50% ownership or the right to direct the management of the entity).
"Brand Features" means all trademarks, service marks, logos, other relevant intellectual property and other distinctive brand features of DOJOMOJO and its Affiliates, or Partner and its Affiliates, respectively.
"Creative Rotation" means ensuring the User is presented the most relevant and engaging content including selection of offer creative or engagement assets, e.g. ensuring that the same User does not see the same Promotional Content twice;
"Derived Data" means all datasets, analyses, and data that is captured or derived from interactions of Users with the DOJOMOJO Software, which may be used by DOJOMOJO for the purposes of Creative Rotation, improving the user experience or performance of the DOJOMOJO Software and DOJOMOJO Platform, or otherwise;
"DOJOMOJO Ad Policies" means the policies with which Promoters are directed to comply by DOJOMOJO including any future policies as adopted by DOJOMOJO from time to time in its absolute discretion;
"DOJOMOJO Data" means any data regarding Users and User transactions held by DOJOMOJO prior to the effectiveness of this Agreement or acquired by DOJOMOJO during the Term, other than any such data passed to DOJOMOJO by Partner;
"DOJOMOJO Platform" means the platform used to provide the Services under this Agreement, incorporating a the DOJOMOJO Software, Promotional platform, transaction marketing engine, DOJOMOJO Website, partner portal and all software, scripts, data, files, methods, or functionality therein and thereto enabling the provision of such Services.;
"DOJOMOJO Software" means the DOJOMOJO programs used to deliver the Services to the Partner, and transfers data from the Partner Pages to the DOJOMOJO Platform and vice versa.
"Insolvency Event" means where either entity enters into bankruptcy, liquidation, administration, receivership, a composition or arrangement with its creditors, has a receiver or manager appointed over all or any part of its assets or becomes or is deemed to become insolvent;
"Intellectual Property Rights" means all present or future intellectual property rights of whatever nature anywhere in the world including, but not limited to, rights in respect of or in connection with copyright, inventions (including patents), trademarks, service marks, trade names, domain names, designs, confidential information, trade secrets and know-how and similar industrial, commercial and intellectual property rights, whether or not registered or able to be registered, and includes the right to apply for the registration of such rights, anywhere in the world;
"Link" means a hypertext text and/or graphic link from one Internet page or site to another Internet page or site.
"Marketplace Services" means the service of DOJOMOJO connecting Promoters to Partners by publishing Promotional Content to Partner Content Areas and of connecting consenting Users to Promoters by way of referral, which may be optimized by DOJOMOJO by means of using consumer offers engagement assets (such as Sweepstakes and Partner offers) to increase overall engagement and performance.
"Net Receipts" means (i) monies actually received from Promoters by DOJOMOJO or its associated entities in cleared funds in respect of Promoter Booking Charges, less (ii) any applicable Commissions, Engagement Asset costs, taxes and any other costs that are jointly agreed. Prizes provided directly by Partner as part of any engagement assets are excluded from the calculation of Net Receipts;
"Network Members" means those entities and associations who have executed DOJOMOJO Partner Network Membership Agreements (or documents of similar content) and receive the individual and/or collective benefits therefrom. For the avoidance of doubt, Partner is a Network Member.
"Partner Content Areas" means the digital properties controlled by Partner and made available for Promotional Content through Marketplace Services, which may include user's engagement, purchase, post-purchase, enquiry, post-enquiry registration, or post-registration areas of the Partner Pages.
"Partner Data" means any data regarding Users and User transactions held by Partner prior to the effectiveness of this Agreement or acquired by Partner during the Term, other than any such data passed to Partner by DOJOMOJO;
"Partner Service" means the services provided by the Partner its Partner Pages, and all software, scripts, data, files, methods, or functionality used to provide the Partner Service.
"Partner Pages" means the landing pages, websites, widgets, mobile applications, and other digital properties on the DOJOMOJO Platform or the digital properties that the Partner owns or controls that will incorporate or feature the DOJOMOJO Software;
"Personal Information" means information about an individual whose identity is apparent from the information, regardless of whether such information is provided by the Partner or a third party, or generated by DOJOMOJO;
"Promoter Booking Charges" means the charges that DOJOMOJO will charge to a Promoter for serving its Promotional Content into the Partner Pages via the DOJOMOJO Software;
"Promoter" means any entity whose Promotional Content is served via the DOJOMOJO Platform into the Partner Content Areas and other digital properties or assets owned or controlled by other Network Members;
"Promotional Content" means information, data or other content sourced via the Marketplace Services that comprises Promotional material intended for serving into the Partner Conte
"Service Schedule" means the list of Services being utilized by Partner
"Services" means the specific Transaction Marketing Services provided in connection with this Agreement;
"Sweepstakes" means a sweepstake, lucky draw, contest, competition, other game of chance, or mixed game of chance and skill;
"TMS Fees" means any fees payable by Partner to DOJOMOJO for the provision and use of Transaction Marketing Services, as may be agreed by the Parties and as set forth.
"Transaction Marketing Services" or "TMS" means any tools and services (including 'software as a service') that support marketing to Users and optimization on the Partner Pages. Transaction Marketing Services includes but is not limited to: purchase path optimization, calendaring integration, market research, customer feedback, social amplification, data enrichment, internal cross-sell, coupon/voucher distribution, sweepstake entries and surveys & polls, and associated CRM and email nurture services. TMS includes any service that connects consumers through phone, email, or traffic referral, and forms of marketing that involve obtaining explicit consent from Users. For the avoidance of doubt TMS includes Marketplace Services but does not include display, content recommendation, video or search-based Marketing Content.
"User" means a customer of or a visitor to the Partner Pages.
10.1 Notices : Any notice required or permitted hereunder shall be in writing and shall be given by:
(a) registered or certified mail, return receipt requested, postage prepaid;
(c) a confirmed facsimile; or
(d) a confirmed email.
10.2 Governing law and jurisdiction : This Agreement is governed by and construed in accordance with the laws of the State of Delaware, United States of America, without having regard to any conflicts of laws provisions, and the Parties to this Agreement submit to the jurisdiction of the Delaware courts.
10.3 Severability : If any part, term or provision of the Agreement shall be held illegal, unenforceable, or in conflict with any law, the validity of the remaining portions shall not be affected thereby and each and every term shall be valid and enforceable to the fullest extent and in the broadest application permitted by law.
10.4 Amendments: The Agreement may be amended only by a written agreement signed by authorized representatives of both parties. For the avoidance of doubt the Partner may update the list of Excluded Promoters at any time.
10.5 Independent contractors. The parties are dealing with each other as independent contractors. The Agreement should not be construed as creating or constituting an employee-employer relationship, a partnership, a joint venture, a franchise, or an agency between Partner and DOJOMOJO.
10.6 Binding authority : The Partner warrants to DOJOMOJO that the person executing the Agreement has authority to execute this Agreement on behalf of the Partner and bind the Partner to the terms and conditions of this Agreement.
10.7 Counterparts : The Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.
10.8 Entire agreement: This Agreement contains the entire understanding between the Parties concerning its subject matter, and supersedes all prior understandings, communications or agreements between the Parties.
10.9 Interpretation: In this Agreement and for all purposes:
(a) headings and underlining are for convenience only and do not affect the construction of this Agreement;
(b) a provision of this Agreement will not be interpreted against a party because the party prepared or was responsible for the preparation of the provision, or because the party's legal representative prepared the provision;
(c) any reference to a currency or a dollar amount is to United States dollars, and all invoices, bids, reports, fees and other amounts shall be denominated in US Dollars, including any transactions that may originally be denominated in another currency, such transactions being converted by DOJOMOJO using a foreign exchange rate that reasonably approximates DOJOMOJO's real cost to convert to US Dollars, whether or not such conversion actually happens;
(d) a reference to a statute or regulation includes amendments thereto;
(e) a reference to a section, clause, subclause or paragraph is a reference to a clause, subclause or paragraph of this Agreement;
(f) a reference to a subclause or paragraph is a reference to the subclause or paragraph in the clause in which the reference is made;
(g) a reference to a person includes a reference to an individual, a partnership, a company, a joint venture, government body, government department, and any other legal entity; and
(h) the words "includes", "including" and similar expressions are not words of limitation.