This Master Publisher Agreement is version no. 1, last updated 28.11.2022
Passendo can provide a number of services to Publisher to manage, sell and control its ad inventory, including but not limited to Passendo’s Supply-side Technology (SST), Exchange and Demand Side Technology (DST), other related services which may vary from time to time (hereinafter referred to as the “Services”).
Passendo’s Services are available for the purposes of:
Publisher wishes to use the Services and engage with Passendo to provide the Services to Publisher.
The Parties wish to lay down the terms and conditions of their cooperation in this Agreement.
The Parties have agreed as follows:
2. Agreement Outline
2.1. Invoicing – the Services as specified and agreed in this Agreement (and/or addenda, schedules as well as other attachments enclosed hereto as may be agreed by the Parties) are invoiced as they are delivered on a subscription basis or otherwise as per the Parties’ agreement. These Services will only apply if Publisher has specifically requested those Services.
2.2. Service Level Agreement – see here to this Agreement for a Service Level Agreement (the “SLA”). The SLA defines the availability and quality of the Services rendered by Passendo to Publisher, including but not limited to the extent and priority of such Services being provided to Publisher.
2.3. Passendo may make unilateral alterations (subject to Passendo’s sole and exclusive consideration) to this Agreement over time, in such a case, Passendo will notify Publisher in writing no later than thirty (30) days before such changes take effect.
3. Passendo Fees and Payment
3.1. Specific Payment Terms: payment terms specific to each Service used by Publisher are outlined in the relevant Schedule.
3.2. General Payment Terms and Invoicing: any dispute regarding a payment must be submitted to Passendo in writing within sixty (60) days of such payment. To ensure timely payment, Publisher must notify Passendo at email@example.com of any changes to its account information. Including change of address, phone and email address.
3.3. Taxes: Passendo assumes no responsibility for paying any taxes on behalf of Publisher, by contracting with Publisher (including execution of this Agreement and any other related documents) and providing Passendo’s Services to Publisher unless otherwise explicitly agreed by the Parties. Publisher assumes complete and sole responsibility for any taxes owed as a consequence of such participation and agrees to indemnify and hold Passendo harmless from any such taxes.
3.4. Publisher shall pay Passendo all the fees and applicable taxes due hereunder via wire transfer, ACH, or credit card. If Publisher elects to pay via credit card, all fees and taxes shall be deducted from a credit card account designed by Publisher. In such event, Publisher authorizes Passendo to automatically charge the Publisher’s credit card account for collecting all the fees and taxes in advance or as otherwise agreed to by the parties in writing without any further authorization from Publisher. Publisher acknowledges that the authorization will remain in effect until Publisher cancels such authorization by providing written notice to Passendo. If Publisher’s credit card account on file is closed or the account information is changed, or if, for any reason, a charge is rejected, Publisher shall immediately update Publisher’s credit card account or supply a new payment account, as appropriate. If Publisher is unable to update its credit card account with appropriate information, then Passendo will send an invoice to Publisher detailing the amount due. Publisher must pay the amount due in full within fourteen (14) days after the date of the invoice.
3.5. Passendo may, without liability to Publisher, disable the password, account, and/or access to all or part of the Services if any fees and applicable taxes are not paid within forty-five (45) days of such fees and taxes first becoming due and payable under this Agreement. In the event of the foregoing, Passendo shall not be obligated to provide any or all of the Services until such fees and applicable taxes are paid in full.
4. Marketing Rights
4.1. Marketing Rights: Publisher hereby grants Passendo permission to use its name, logo and/or brand names in Passendo’s sales, marketing and social media activities, including but not limited to displaying Publisher’s logo and/or brand names on Passendo’s website. If, at any time, Publisher wishes to revoke this right, they are to contact firstname.lastname@example.org in writing and Passendo shall take every commercially reasonable effort to do so without it being commercially impractical.
4.2. PR Activities: with Publisher’s written permission, Passendo reserves the right to publish a press release detailing the cooperation between the Parties.
5. Data Processing Agreement
5.1. Data Processing Agreement: a separate data processing agreement (the “DPA”) will be enclosed here to this Agreement and should be accepted by both Parties separately and independently in order to be compliant with any applicable data protection regulations, if any. Execution of the DPA shall not be interpreted as a condition precedent to execution of this Agreement.
6. Representations and Warranties
6.1. Each Party represents and warrants on its own behalf and on behalf of any affiliated entity within the same group that:
It has the full legal power and authority to enter into this Agreement and to perform the obligations contained in this Agreement;
Respective Party’s entry into, and performance under, this Agreement, will not violate any law, statute or regulation or result in a breach of any material agreement or understanding to which the respective Party and/or its affiliated entities bound;
Execution of this Agreement will not constitute any infringement of the intellectual property or privacy rights of other Party or any third party.
PASSENDO DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SERVICES, EXPRESS OR IMPLIED, ARISING BY OPERATION OF LAW, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES AGAINST NON-INFRINGEMENT. PASSENDO EXPRESSLY DOES NOT WARRANT THAT THE PROVISION OF THE SERVICES SHALL BE UNINTERRUPTED OR ERROR-FREE.
7. Liability & Indemnities
7.1. Liability: Passendo assumes no legal liability in relation to the legality of third party activities. This primarily concerns advertising through media newsletters with respect to the legality of the way the individual media has collected email permissions and secondarily the legality of the commercial content served, e.g. regarding content covering alcohol, nudity, children, gambling activities etc.
7.2. Limitation of Publisher Liability: Publisher shall not be liable to Passendo, or any third party, for any indirect, special, incidental, consequential, punitive or exemplary damages of any kind (including lost revenues or profits (actual or anticipated), loss of use or loss of goodwill or reputation) with respect to any claims, whether based on contract, tort or otherwise (including negligence and strict liability), arising out of this Agreement, and Publisher’s maximum liability arising out of or relating to this Agreement, regardless of the cause of action (whether in contract, tort, breach of warranty or otherwise), will not exceed the aggregate amount of the fees paid and payable to Publisher by Passendo during the twelve (12) month period preceding the date on which the claim arose.
7.3. Limitation of Passendo Liability: Passendo shall not be liable to Publisher, or any third party, for any indirect, special, incidental, consequential, punitive or exemplary damages of any kind (including lost revenues or profits (actual or anticipated), loss of use or loss of goodwill or reputation) with respect to any claims, whether based on contract, tort or otherwise (including negligence and strict liability), arising out of this Agreement, and Passendo’s maximum liability arising out of or relating to this Agreement, regardless of the cause of action (whether in contract, tort, breach of warranty or otherwise), will not exceed the aggregate amount of the fees paid and payable to Publisher by Passendo during the twelve (12) month period preceding the date on which the claim arose.
7.4. Notwithstanding: notwithstanding anything stated in Section 7 and its subsections, Passendo shall be liable only for its own gross negligence, willful misconduct, breach of applicable laws or bad faith and only for direct losses. Publisher agrees to indemnify Passendo and save it harmless against any and all liabilities, including judgments, costs and reasonable counsel fees, for anything done or omitted by Passendo in the execution of this Agreement, except as a result of Passendo’s gross negligence, willful misconduct, breach of applicable laws or acts of bad faith.
7.5. The total liability of Passendo to Publisher from any cause whatsoever, will be limited to the lesser of Publisher’s actual damages or the Services price paid to Passendo for those Services (in the period of 12 months preceding the Publisher’s claim) that are the subject of Publisher’s claim. In no event will Passendo be liable for SPECIAL, INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, including but not limited to loss of profits, revenues, data or power, damage to or loss of the use of products, damage to property, claims of third parties, including personal injury or death, suffered as a result of proper provision of the Services by Passendo or use of the Services by Publisher.
7.6. Time for Claims. All claims against Passendo must be brought within one (1) year after the cause of action arises and Publisher waives any statute of limitations which might apply by operation of law or otherwise.
8.1. Confidential Information: the Parties understand and agree that in the performance of this Agreement, each Party may have access to or may be exposed to confidential information, whether directly or indirectly. Each Party agrees that it will make every commercially reasonable effort to ensure that confidential information is kept within its control and that it is securely protected against theft or unauthorized access. Under all circumstances each Party shall maintain its security, integrity and confidentiality measures to at least the same standard that it applies to its own confidential information. The Parties will only use or make copies of confidential information to the extent necessary for performance of the services under this Agreement. Each Party agrees that:
All confidential information will remain the exclusive property of the disclosing Party, and the receiving Party will not use any confidential information for any purpose other than in furtherance of this Agreement.
It will disclose confidential information only to those permitted persons for which such is necessary in order to execute the Services;
It will do its utmost to ensure that permitted persons will respect the confidential character of the confidential information;
It will do its utmost to ensure that permitted persons do not copy, publish, disclose to others or use the confidential information (other than pursuant to the terms of this Agreement);
It will return all hard and soft copies of confidential information upon written request by the other Party.
8.2. Notwithstanding the foregoing, publication of confidential information shall not constitute a violation of this Section 8 if it:
Is or becomes part of the public domain without act or omission by the receiving Party;
Is disclosed to the receiving Party by a third party that has no obligation of confidentiality with respect thereto and possessed such confidential information on a legal basis;
Is required to be disclosed pursuant to law, court order, subpoena or governmental authority’s binding and mandatory decision.
9. Duration, termination and suspension
9.1. Term: This Agreement shall commence on the Effective Date agreed herein and last for a duration of twelve (12) months. The Agreement shall automatically renew for another twelve (12) months’ period at each consecutive anniversary thereof, unless either Party provides a ninety (90) days’ written notice that such Party wishes to terminate the Agreement before the next anniversary of the Agreement. Additionally, any reductions in the applicable subscription(s) should also be made by the Publisher at least ninety (90) days prior to the next anniversary of this Agreement and in line with the terms and conditions thereof.
During the Term of this Agreement, Publisher may upgrade its initially opted in Services option (“Subscription Plan”) anytime by sending a notice to Passendo. Upon the Subscription Plan upgrade a correction in the invoice will happen appropriately.
The Parties hereby explicitly agree that any fees and costs charged by Passendo shall be subject to an increase of up to 5% on an annual basis (maximum once per calendar year), with the new fees being applicable either as of January 1 or July 1 of each calendar year, respectively. Publisher agrees that such annual increase is subject to Passendo’s sole and exclusive consideration (i.e. it is Passendo’s right, but not an obligation), save for the first annual Term of the Agreement, during which no increase of Passendo’s fees and costs shall occur for the Publisher. Shall Passendo decide to exercise its right under this clause, Passendo shall notify the Publisher at least sixty (60) days in advance before the effective date (i.e., January 1 or July 1) of such increase.
9.2. Breach: If either Party materially breaches this Agreement and such breach is not cured within thirty (30) days of written notice thereof, the non-breaching Party may immediately terminate this Agreement upon written notice (email suffices) to the breaching Party. Any claims concerning the breach can be made according to Danish law.
9.3. Default: Each Party may terminate or suspend this Agreement with immediate effect and without notice of default being required, if the other Party is declared bankrupt or has requested its own bankruptcy, or if suspension of payment is granted or the equivalent thereof in any other jurisdiction.
10.1. Entire Agreement: This Agreement (as well as other attachments not depending on their namings) constitute the entire agreement between the Parties with respect to the Services delivered by Passendo and, therefore, supersedes all earlier agreements and understandings, whether oral, written or otherwise, between the Parties. If there are conflicting provisions between an order document, insertion order, and/or other applicable annexes, the provisions of this Agreement will prevail at all times.
10.2. Amendments: Except as otherwise provided in this Agreement, no amendment to this Agreement will become effective unless it is explicitly agreed upon in writing between the Parties.
10.3. Assignment: Neither Party may assign its rights or obligations under this Agreement without the prior written permission of the other Party.
10.4. Notices: Any notice or communication delivered to either Party pursuant to or in connection with this Agreement shall be sent by email to the designated contact person as defined in the respective Schedule.
11.1. Publisher will use commercially reasonable efforts to ensure that the advertising materials served through Passendo’s Platform do not:
contain, promote or have links to any sexually explicit materials, hate material, defamatory materials;
contain materials promoting violence or discrimination based on race, sex, religion, nationality, disability, sexual orientation, age or family status;
promote or reference any software piracy systems (warez, cracking, etc.), hacking, phreaking, emulators, ROM’s, or illegal MP3 activities among others;
promote any illegal activities, organizations, deceptive practices, violations or infringements of the intellectual property rights of third parties;
promote activities generally understood as Internet abuse, including but not limited to, the sending of unsolicited bulk electronic mail or the use of spyware programs.
11.2. For the term of this Agreement, Passendo grants Publisher non-exclusive, perpetual, revocable rights and license to copy, store, display, print and distribute any and all advertising materials provided by Passendo on its Ad Server and Exchange, including but not limited to photographs, artwork, text and graphics, in any media. After the Agreement is terminated, Publisher shall immediately stop using any of the advertisement materials as provided by Passendo in accordance with the Agreement; and all rights and licenses granted by Passendo to Publisher under this Section shall cease to be valid and effective, unless otherwise additionally agreed by the Parties.
11.3. Publisher acknowledges that Passendo uses, or may develop hereunder, methods, concepts, code sequences, format, sequence structure, organization, menu command hierarchy, templates, masks, user interface, techniques, program organization, database structuring techniques, and the like (Passendo proprietary items) that are proprietary to Passendo. It is agreed that these Passendo proprietary items shall remain the sole and exclusive property of Passendo.
11.4. Publisher agrees to indemnify and hold Passendo harmless against all claims, liabilities, demands, damages, or expenses (including attorneys’ fees and expenses) arising out of or in connection with Publisher’s use of the Services.
12. Governing law and disputes
12.1. Governing Law: This Agreement will be governed by and construed in accordance with Danish law.
12.2. Disputes, Venue: Any dispute or claim arising out of or in connection with this Agreement, or the breach, termination or invalidity thereof, shall be settled by arbitration in accordance with the Rules of Procedure of the Danish Institute of Arbitration (Copenhagen Arbitration). The arbitration tribunal shall be composed of three arbitrators. Each Party shall appoint one arbitrator and the shall appoint a third arbitrator who shall be the Chairman of the arbitration tribunal. If a Party has not appointed an arbitrator within 30 days of having requested or received notice of the arbitration, such arbitrator shall be appointed by the Danish Institute of Arbitration. The place of arbitration shall be Copenhagen, Denmark. The language of the arbitration shall be English. The Agreement shall be governed by the law of Denmark.
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