PUBLISHER TERMS OF SERVICE AGREEMENT FOR AD MANAGEMENT SOLUTIONS
This Publisher Terms of Service Agreement (the, "Agreement") is entered into by and between Disqus, Inc. (“Disqus”) and the publisher ("Publisher") as of the first date the Disqus and Publisher execute an insertion order for ad management solutions ("Effective Date"). Therefore, in consideration of the mutual covenants of the parties and other valuable considerations, the sufficiency and receipt of which is hereby acknowledged, the parties agree as follows:
1. Services. Disqus will, among other things, manage Publisher's ad stack across the agreed upon Publisher website(s). In doing so, Disqus will provide ad tags (i.e., programming code to enable the display of a digital advertisement) for Publisher to include on the applicable website(s) each an (“Applicable Site”) and Disqus will thereby source the demand to fill impressions.
2. Access and Use.
2.1. Access. Publisher authorizes Disqus to place ad tags and advertisements on Publisher’s applicable website(s). Publisher may not modify any ad tags in such a way as to adversely impact delivery of the advertisement or an end-users ability to view an advertisement.. Publisher may add Applicable Sites not set forth in the Service Order upon execution of an additional Service Order which shall be governed by this Agreement. Publisher shall not in any way deliver, transfer, or otherwise provide access to or make available the Service to any third parties except as specifically permitted by this Agreement. Publisher is solely responsible for the activity that occurs on Publisher’s Applicable Site.
2.2. Use. Publisher shall use the Service in accordance with the terms of this Agreement and Disqus’s privacy policy. Publisher shall be solely responsible for maintaining its own equipment and establishing its own connection via the Internet. In no event shall Publisher, or any third party, use Disqus’s APIs to “harvest” or read in bulk the contents of the data files used in the Service, expose or otherwise make available Disqus’s APIs, including pass-through of the APIs to third parties, nor repackage the APIs to make available their functionality to third parties. Publisher shall not take any action to interfere with the Service or any other user's use of the Service, Disqus’s host or network, including, without limitation, via means of overloading, “flooding”, “mailbombing” or “crashing” the Service.
2.3. Updates. The parties agree that Disqus may make updates, modifications or improvements (collectively, “Updates”) to the Service from time to time in its sole discretion.
2.4. License to Use Service. Disqus reserves the right to revoke your license to use the Service at any time and for any reason. Disqus may also modify or discontinue the Services or any of its features at any time in our sole discretion without any responsibility or liability to you.
2.5. Google Adsense. Participation in Services is subject to your acceptance and continued compliance with this agreement and with the Google Adsense Advertising Policies outlined at https://www.google.com/adsense/policies. You agree that Disqus is not, and can not, under any circumstances be held responsible for the removal or banning of your site by Google Adsense or any other online advertising program. You authorize Disqus to represent you and/or act as an agent on your behalf in dealings with ad networks. Disqus may represent your website’s inventory, setup your website and domain(s) and complete other such actions in order to get approved and to get ads running from such network.
3. Advertising; Revenue Share. Publisher agrees that Disqus may include advertisements and/or content provided by Disqus and/or a third party (collectively “Ads”) as part of the Service. Disqus, in its sole discretion, determines whether the Publisher’s Applicable Site(s) are eligible to receive payments for running advertisements ("Revenue Share"). Publisher agrees to comply with any specifications that may be required by Disqus from time to time to enable proper delivery, display, tracking and/or reporting of Ads. As a prerequisite to earning Revenue Share, Publisher must adhere to Disqus’ Ads.txt policy, and Publisher shall be required to submit valid payment information and relevant tax forms via Disqus’s publisher dashboard. Disqus shall have no obligation to pay Publisher in the event Disqus has not received payment from its advertisers. Disqus shall not be liable for any payment based on: (a) any amounts which result from invalid queries, invalid Referral events, or invalid clicks or impressions on Ads generated by any person, bot, automated program or similar device, as reasonably determined by Disqus, including without limitation through any clicks or impressions (i) originating from Publisher’s IP addresses or computers under Publisher’s control, (ii) solicited by payment of money, false representation, or request for end users to click on Ads, or (iii) solicited by payment of money, false representation, or any illegal or otherwise invalid request for end users to complete referral events; (b) ads delivered to end users whose browsers have JavaScript disabled; (c) ads benefiting charitable organizations and other placeholder or transparent ads that Disqus may deliver; or (d) clicks co-mingled with a significant number of invalid clicks described in (a) above, or as a result of any breach of this Agreement by Publisher for any applicable pay period. Disqus reserves the right to withhold payment or charge back Payee’s account due to any of the foregoing or any breach of this agreement by Publisher, pending Disqus’s reasonable investigation of any of the foregoing or any breach of this Agreement by Publisher, or in the event that an advertiser or ad network whose ads are displayed in connection with Publisher’s site defaults on payment for such ads to Disqus. Disqus shall pay Publisher the Revenue Share due to Publisher ninety (90) days from the end of each calendar month that Ads are running on the Applicable Site(s). Payment will be distributed through Tipalti. Disqus shall not distribute Revenue Share to Publisher if the amount due to Publisher is less than US$100. Publisher shall be required to claim Revenue Share from Disqus within three (3) months of the date Revenue Share was distributed to Publisher. In the event Publisher does not claim Revenue Share within such time period, Disqus shall have the right to reclaim such Revenue Share. Disqus reserves the right, in its sole discretion, not to run Ads on the Applicable Site(s) for any reason, or no reason, including, but not limited to, quality of the content or content requirements from Disqus’s advertisers. Publisher shall promptly notify Disqus if Publisher has any legal obligations to show specific content or advertisements on Publisher’s site and Publisher will indemnify and hold Disqus, and its subsidiaries, affiliates, officers, agents and employees, harmless from any claim or demand, including reasonable attorneys’ fees, arising out of the removal or failure to display such content or advertisements.
4. Data Privacy.
4.1. License to Use Disqus Personal Data. “Disqus Personal Data” means all personal data that is collected, transmitted, displayed, uploaded, or exchanged by or through the Service. Disqus hereby grants Publisher a limited, non-exclusive, and revocable license to use Disqus Personal Data for comment moderation, ad placement and tracking, and analytics purposes only (the “Permitted Purpose”).
4.2. Data Processing. For the purposes of this clause, the terms "controller", "data subjects", "personal data", "processor", "processing", and “supervisory authority” shall have the meaning given to them by the European Regulation 2016/679 (“GDPR”). Disqus and Publisher shall each be controllers of Disqus Personal Data, and both parties shall process Disqus Personal Data only in accordance with the Permitted Purpose. If Publisher is required to process Disqus Personal Data for any other purpose by a law to which Publisher is subject, Publisher shall inform Disqus of this requirement before the processing, unless prohibited by applicable law. Publisher shall ensure that (i) its personnel and subcontractors who have access to Disqus Personal Data have committed themselves to confidentiality and are aware of and comply with Publisher's duties and their personal duties and obligations under this Agreement (ii) implement appropriate technical and organizational security measures to ensure a level of security appropriate to the risks that are presented by the processing of Disqus Personal Data. In case of a personal data breach which affects Disqus Personal Data, Publisher will notify Disqus without undue delay after becoming aware of it, (iii) taking into account the nature of the processing, assist Disqus by appropriate technical and organizational measures insofar as it is possible to fulfill Disqus's obligations to respond to requests from data subjects exercising their rights; (iv) taking into account the nature of the processing and the information available to Publisher, assist Disqus, at Disqus's cost, to ensure compliance with the obligations under applicable privacy law with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators; (v) upon termination of this Agreement or upon Disqus's request, destroy or return all Disqus Personal Data to Disqus (unless a law requires storage of Disqus Personal Data), and (vi) make available to Disqus all information reasonably necessary to demonstrate compliance with the obligations laid down in this section and allow for and contribute to audits, including inspections, conducted by Disqus or an auditor mandated by Disqus. Disqus acknowledges and agrees that Publisher may retain its affiliates and other third parties as sub-processors (all together "Sub-Processors") in connection with the provision of the Services having imposed on such Sub-Processors the same data protection obligations as are imposed on Publisher under this Agreement. Publisher will be liable to Disqus for the performance of the Sub-Processors' obligations. Publisher will inform Disqus in advance of any changes concerning the addition or replacement of Sub-Processors.
4.3. Cookies. Disqus shall be permitted to place or recognize a cookie on the visitors to the Applicable Sites for the purpose of collecting Disqus Personal Data relating to the visitor’s activity and interaction with the Service, or content on the Applicable Sites, and information about the visitor’s device ID, browser type, environmental or location information, or other similar information, as set forth in Disqus’s privacy policy (“Disqus Cookie Data”). To the extent that Cookie Tracking is turned on, and subject to its compliance with applicable Privacy Laws (as defined below), Disqus will also cause third-party cookies to be served. Publishers may choose to turn off Cookie Tracking at any time, however, Publisher shall not be eligible to for Ad Revenue unless Cookie Tracking is turned on. Publisher further agrees that, to the extent Cookie Tracking is turned on, and to the extent required by Privacy Laws, the Applicable Sites contain a mechanism to obtain the user’s consent for the collection of Disqus Cookie Data for GDPR or other applicable legal purposes and a “Do Not Sell” or “Privacy Choices” button or link available on, at a minimum, the home page of each Publisher-owned site that utilizes Disqus, and each web page where the Disqus comment section or Disqus logo is displayed. Publisher will be solely responsible for obtaining user consent for the placement of cookies at the Publisher’s website to the extent required by applicable Privacy Laws.
4.4. Compliance with Privacy Laws. Both Disqus and Publisher shall comply fully with all applicable laws, rules, regulations, and government orders relating to data protection and data privacy, including, but not limited to, the GDPR, the CCPA, and other U.S. state or federal privacy laws, regulations, court precedent, and regulatory agency orders, (collectively “Privacy Laws”), and will only collect, use and disclose Disqus Personal Data collected through the Service and the Applicable Site(s) as set forth in this Agreement and in compliance with applicable Privacy Laws. Publisher will ensure that each of its Applicable Sites includes a privacy policy that complies with all Privacy Laws and specifically (i) discloses that the site shares personal data with Disqus, (ii) discloses the usage of third-party technology; and to the extent Cookie Tracking is turned on, the data collection and usage by Disqus; and (iii) contains a conspicuous live hyperlink to give users the ability to opt out of interest-based or cross context behavioral advertising through the Service. Publisher and Disqus agree to comply with the obligations set out in the Standard Contractual Clauses, which are incorporated herein by reference. “Standard Contractual Clauses” means the applicable module(s) of the European Commission’s standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council, as set out in the Annex to Commission Implementing Decision (EU) 2021/914 (“Standard Contractual Clauses”). The Controller-to-Controller Standard Contractual Clauses shall apply in all cases where Disqus Personal Data that relates to residents of a Restricted Country (as defined below) is processed by Disqus. In particular, and without limiting the above obligations: (i) Publisher and Disqus agree that their respective obligations under the Standard Contractual Clauses shall be governed by the law(s) of the Member State(s) (or Switzerland or the United Kingdom) in which users are established; and (ii) the details of the appendices applicable to the Standard Contractual Clauses are set out in Exhibit B to the data processing agreement, which is incorporated herein by reference. “Restricted Country” means a member state of the European Economic Area, Argentina, Brazil, Canada, Chile, China, Costa Rica, Ghana, Hong Kong, Israel, Malaysia, Mexico, Morocco, Russia, Saudi Arabia, Singapore, Switzerland, Tunisia, Turkey, the United Kingdom, or Uruguay.
5. Intellectual Property. Notwithstanding anything to the contrary in this agreement, all intellectual property rights (a) owned or licensed by a party before the date of this agreement and (b) created, developed or licensed by that party after the date of this Agreement independently of this Agreement shall continue to vest in that party. Publisher acknowledges that all intellectual property rights in the Service (including any improvements, enhancements and modifications thereto), are Disqus’s Confidential Information (as defined below) and any other of Disqus’ software, data, or information provided or made available to Publisher under this Agreement (together the “Disqus’s Intellectual Property”) shall belong to Disqus and Publisher shall have no rights in or to Disqus’s Intellectual Property other than the right to use it in accordance with the terms of this Agreement. Unless otherwise agreed to in writing, Publisher shall not remove or obscure any copyright, trademark or patent notice that appears on the Service.
6. Confidential Information
6.1. Confidential Information. In connection with this Agreement, each party may disclose, or may learn of or have access to, certain confidential proprietary information owned by the other party (“Confidential Information”). Confidential Information means any non-public data or information, oral or written, that relates to a party, or any of its business activities, technology, developments, inventions, processes, trade secrets, know how, source code, plans, financial information, Publisher and supplier lists, forecasts, and projections. Notwithstanding the foregoing, Confidential Information is deemed not to include information that: (i) is publicly available or in the public domain at the time disclosed; (ii) is or becomes publicly available or enters the public domain through no fault of the receiving party; (iii) is rightfully communicated to the receiving party by persons not bound by confidentiality obligations with respect thereto; (iv) is already in the receiving party's possession free of any confidentiality obligations with respect thereto; (v) can be documented as independently developed by a party without use of any Confidential Information of the other party; or (vi) is approved for release or disclosure by the disclosing party without restriction. Each party shall use reasonable measures to maintain the Confidential Information of the other party in confidence and shall not disclose, publish or copy any part of such Confidential Information, to any third party. Each party shall only use the Confidential Information of the other party for the purpose of this Agreement and shall limit disclosures to any employees on a strict need-to-know basis. Notwithstanding the foregoing, a party may disclose Confidential Information of the other party pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that such party gives reasonable prior notice (if permissible) to the other party to contest such order or requirement. Upon request, each party shall return to the other party, or certify the destruction of, all Confidential Information of the other party.
7. Representations and Warranties.
7.1. Mutual Representations. Each party represents and warrants to the other party that: (i) it has the full corporate right, power and authority to enter into this Agreement and to perform the acts required of it hereunder; (ii) the execution of this Agreement and the performance of its obligations hereunder, do not and will not violate any agreement to which it is a party or by which it is bound; and (iii) when executed and delivered, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against it in accordance with its terms.
7.2. Publisher Representations. Publisher represents and warrants to Disqus that: (i) it owns, operates, or controls all Applicable Sites; (ii) the Applicable Sites do not contain materials that infringe or violate any third party proprietary rights including, but not limited to, third party intellectual property rights, or materials that violate any applicable laws, rules, or regulations and Privacy Laws; and (iii) the Applicable Sites do not contain any harmful or disabling software code, including without limitation any virus, time-bomb or trojan horse.
7.3. Disclaimer of Warranties. Except for the express warranties provided for herein, the service, and any support services are provided to Publisher “as is” and Disqus expressly disclaims all warranties, express, implied or statutory, including but not limited to the implied warranties of merchantability, fitness for a particular purpose, and noninfringement, and any warranties arising out of course of dealing, usage, or trade. Disqus does not warrant that the service or any updates will meet Publisher's specific requirements or that the operation of the service or updates will be completely error-free or uninterrupted. Disqus shall not be liable to Publisher for any inoperability of the service or for any loss of information or other injury, damage or disruption of any kind. Disqus makes no guarantee regarding the level of pageviews or ad impressions or clicks or the amount of payment made to you under this agreement.
8. Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF USE, DATA, BUSINESS OR PROFITS OR COSTS OF COVER) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE SERVICE AND/OR UPDATE(S), WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, AND WHETHER OR NOT DISQUS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. IN NO EVENT SHALL DISQUS’S CUMULATIVE LIABILITY TO THE OTHER EXCEED THE FEES PAID TO DISQUS BY PUBLISHER DURING TWELVE (12) MONTHS PRECEDING THE INCIDENT GIVING RISE TO SUCH LIABILITY.
9. Indemnification.
9.1. Disqus. Disqus shall indemnify, defend and hold harmless Publisher and its affiliates, and their respective shareholders, officers, directors, employees, agents, successors and assigns from and against any and all third party claims for losses, liabilities, costs, expenses (including amounts paid in settlement and reasonable attorneys’ fees and expenses), penalties, judgments and damages (“Losses”) resulting from any claim by a third party that the Services or infringe or violate the intellectual property rights of any third party, provided, in each case, that (i) Disqus is promptly notified in writing of the claim; (ii) Disqus has sole control of the defense and any negotiations for the settlement of such claim; and (iii) the indemnified party provides to Disqus, at Disqus’s expense, with all reasonable assistance, information, and authority necessary to perform the above. Should the Services in Disqus's opinion, be likely to become, the subject of a claim of infringement, Disqus may, at its option and expense, either procure for Publisher the right to continue using the Services or replace or modify the Services or Work Product in order to make them non-infringing.
9.2. Publisher. Publisher agrees to indemnify, defend and hold harmless Disqus, its affiliates and their respective officers, directors, and employees from and against any and all Losses to the extent that such is based upon any third party claim in connection with (i) Publisher’s breach of any of its representations or warranties made hereunder; (ii) Publisher’s violation of any applicable laws, rules or regulations, including, but not limited to, any data protection and data privacy laws and regulations and industry association guidelines; or (iii) Publisher’s violation of any third party intellectual property right.
10. Term and Termination
10.1. Term. This Agreement shall commence on the Effective Date and shall continue for an initial term of twelve (12) months following the Effective Date (the “Initial Term”). After the expiration of the Initial Term, this Agreement shall automatically renew for additional twelve (12) month periods unless either party gives not less than ninety (90) days’ prior written notice of its intention not to renew (the initial term and any Renewal Term collectively referred to as the “Term”).
10.2. Termination. This Agreement shall terminate: (i) by a party thirty (30) business days after the other party’s receipt of written notice that such party is in material breach of any of the terms or conditions set forth in this Agreement, unless such party cures such breach within said thirty (30) business days period or (ii) upon written notice if the other party becomes insolvent, makes a general assignment for the benefit of creditors, files a voluntary petition of bankruptcy, suffers or permits the appointment of a receiver for its business or assets, becomes subject to any proceedings under any bankruptcy or insolvency law, whether domestic or foreign, or has wound up or liquidated its business voluntarily or otherwise, and same has not been discharged or terminated within ninety (90) days. Notwithstanding the foregoing, Disqus may immediately and without prior notice terminate or suspend Publisher’s access to the Service in the event Disqus reasonably believes that continued Publisher access or storage may harm the Service, expose Disqus to liability or is necessary to comply with applicable law.
10.3. Upon Termination. Upon the effective date of expiration or termination of this Agreement for any reason, whether by Publisher or Disqus, Publisher’s right to use the Service shall immediately cease. It is Publisher’s sole responsibility to download Disqus Personal Data; Disqus has no obligation to make any data available to the Publisher following the date of termination. Publisher can request a copy of Disqus Personal Data from Disqus only for additional cost determined by Disqus. Disqus has the right to deny such request at its sole discretion. Promptly upon expiration or termination of this Agreement for any reason, Publisher shall pay any unpaid and outstanding Fees due to Disqus that have accrued as of the date of expiration or termination and Publisher shall return to Disqus, or certify the destruction of, all copies of Disqus’s Confidential Information.
11. General Provisions
11.1. Severability and Waiver. If any provision of this Agreement is held to be void, invalid or inoperative, the remaining provisions of this Agreement shall continue in effect and the invalid portion of any provision shall be deemed modified to the least degree necessary to remedy such invalidity while retaining the original intent of the parties. The failure of either party to partially or fully exercise any rights or the waiver of either party of any breach shall not prevent a subsequent exercise of such right or be deemed a waiver of any subsequent breach of the same or any other term of this Agreement.
11.2. Independent Contractors. Each party to this Agreement is an independent contractor in relation to the other party with respect to all matters arising under this Agreement. Nothing herein shall be deemed to establish a partnership, joint venture, association or employment relationship between the parties. Publisher may not assign any of its rights or obligations under this Agreement to any other entity without the prior written consent of Disqus, which shall not be unreasonably withheld.
11.3. Assignment. Neither party may, or shall have the power to, assign this Agreement without the prior written consent of the other; provided, however, that either party may assign its rights and obligations under this Agreement without the approval of the other party to any subsidiary or Affiliate or successor in connection with a merger, consolidation, sale of all of the equity interests of the party, or a sale of all or substantially all of the assets of the party to which this Agreement relates; provided, that in no event shall such assignment relieve such party of its obligations under this Agreement. Subject to the foregoing, this Agreement shall be binding on the parties hereto and their respective successors and assigns.
11.4. Entire Agreement. This Agreement, including any exhibits and schedules attached hereto, constitutes the entire agreement between the parties on this subject matter and supersedes all prior negotiations, understandings and agreements between the parties concerning this subject matter. Neither Party will be bound by, and each party specifically objects to, any term, condition, or other provision which is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this agreement). No amendment or modification of this Agreement shall be made except by a writing signed by both parties.
11.5. Survival. The provisions of this Agreement, which by their nature are intended to survive after termination or expiration of this Agreement shall so survive the expiration or termination of this Agreement regardless of the reason or reasons therefore.
11.6. Freedom of Action. Either party is free to enter into similar agreements with others and may design, develop, manufacture, acquire or market competitive products or services. Either party may assign and re-assign its employees in any way it may choose and neither party is restricted in any way from hiring or soliciting employees of the other.
11.7. Counterparts Acceptable. This Agreement may be executed in any number of counterparts, each of which shall be an original and all of which together shall constitute one and the same document.
11.8. Publicity. Disqus shall be entitled, without prior consultation with or approval of the Publisher, to make press releases or other public disclosures with respect to this transaction. Publisher grants Disqus a non-exclusive license during the Term to use its name and trademarks in marketing materials, website or customer lists; provided, that Publisher has the right to notify Disqus in writing if it does not agree to any of the foregoing uses of its name and trademarks.
11.9. Force Majeure. Except for payment obligations, neither party shall be in breach of this Agreement or responsible for damages caused by delay or failure to perform, in full or in part, its obligations hereunder, provided that there is due diligence in attempted performance under the circumstances and that such delay or failure is due to fire, earthquake, unusually severe weather, strikes, government sanctioned embargo, flood, act of God, act of war or terrorism, act of any public authority or sovereign government, civil disorder, delay or destruction caused by public carrier, or any other circumstance substantially beyond the control of the party to be charged.
11.10. Governing Law; Jurisdiction. The validity, interpretation, performance and enforcement of this Agreement shall be governed by the laws of the State of California and each party irrevocably submits to exclusive jurisdiction and venue in the courts located in Santa Clara County, California. The United Nations Convention on contracts for the International Sales of Goods shall not apply. The remedies under this Agreement shall be cumulative and not alternative and the election of one remedy for a breach shall not preclude pursuit of other remedies unless expressly provided otherwise in this Agreement. Disqus shall be entitled to collect its reasonable attorney’s fees, costs and expenses in any action brought to seek amounts past due or to otherwise enforce rights hereunder.
11.11. Notice. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given when delivered in person (including by overnight courier) or three days after being mailed by registered or certified mail (postage prepaid, return receipt requested) or sent by email, and on the date the notice is sent when sent by verified facsimile or email, in each case to the respective Parties at the address first set forth hereto.