Dada Entertainment Application Integration Program Terms and Conditions

These are the terms and conditions that constitute your agreement (“PAI Agreement”) with Dada Entertainment, LLC (“Dada”, “we”, “us” or “our”) when we accept the application you submit to us (your “Application”)  requesting participation in our Self-Serve Partner Program (as defined below). We reserve the right to accept or reject Applications and you are not a participant in our Self-Serve Partner Program until we notify you we have accepted your Application.

Although we will use terms such as “Partner”, “you” or “your” to refer to the individual or business entity identified in the Application you submit, you are and remain, for all purposes, purely an independent contractor, responsible for your own actions, taxes, the provision of any benefits, insurance and compliance with any and all laws and regulations that apply to you, your business and activities. Neither this PAI Agreement, nor your participation in our Self-Serve Partner Program contemplates any sharing of profits or losses, a joint venture or any other form of business arrangement, other than your participation in our Self-Serve Partner Program as described in this PAI Agreement.

1)   DEFINITIONS

a)   “Adware” means any Widget that (i) causes advertising to pop-up as a new window (over or under the active window) on an end user’s computer or device either randomly or based on the end user’s online activity (other than advertisements served by persons to visitors while they are visiting that person’s domains) or (ii) is used to distribute Spyware.

b)   “Customer” means an end user referred to Dada directly by Partner through Integration that (i) provides all information requested by Dada, which may include carrier, mobile number, email address and content selection information, (ii) agrees to our Terms & Conditions (as defined below), (iii) authenticates their agreement with us (through SMS, confirmation web page or otherwise as we specify or by downloading Mobile Content and (iv) is billed by or on behalf of Dada for a monthly subscription.

c)    “Customer Data” means data collected by Dada with respect to Customers, including contact information (such as name, email, cell phone number and address), billing information (such as credit card number and expiration date), demographic information (such as zip code, age level) and information relating to Mobile Content purchases and usage patterns.

d)   “Dada Service” means the services provided by us with respect to Mobile Content to Customers on a subscription basis, as well as any associated applications, including, without limitation, those applications that allow Customers to purchase and receive Mobile Content.

e)   “Dada Tools” means any application programming interface (“API”) or technology and related documentation and any uniquely coded hyperlinks made available by Dada that allow you to develop the Integration with Dada and offer access to the Dada Service, including any xml feed of the Dada catalog of Mobile Content.

f)     “Drive-by-Download” means implementing or allowing any Widget installation process or procedure to be initiated unless the end user has given informed consent immediately prior to the commencement of the installation or download process or procedure.

g)   “Integration” means the inclusion of portions of the Dada Services and Dada Marks on the Partner Sites in accordance with the Specifications and as mutually agreed upon by the Parties, as well as any other instances of direct marketing and promotion of Dada Services by Partner, to the extent permitted by this PAI Agreement.

h)   “Malware” means any malicious code, viruses, Trojan horses, logic bombs, denial of service attacks or other disruptive programs, software, code or activities that is designed or intended (or reasonably likely to have been designed or intended) to disrupt, damage, interrupt, interfere with or perform unauthorized actions without notice and express prior consent of the end user, including, without limitation, Adware and Spyware.

i)     “Marks” means the trademarks, service marks, trade names, brands, logos and other distinctive branding or identification of a party.

j)     “Mobile Content” means any Mobile Device content offered to Customers by Dada, including ringtones, wallpaper images, video, text alerts and games.

k)   “Mobile Device” means a portable, wireless communications device through which a Customer may connect with a Mobile Network to transmit and receive communications, including, without limitation, wireless, mobile or cellular communication devices, Internet communications devices or other communications or transmission technology now known or hereafter implemented.

l)     “Mobile Network” means a wireless communications network pursuant to which a Dada Customer may send and/or receive mobile communications services.

m) “Partner Application” means Partner’s proprietary Widget.

n)   “Partner Application Terms of Use” means the agreement the Partner employs to legally bind an end user to Partner’s terms and conditions that apply to and govern the use of a Partner Application.

o)   “Partner Sites” means the web sites, web pages, domains or online services owned, operated and/or managed by Partner that are approved by Dada for purposes of this PAI Agreement.

p)   “Specifications” means the formatting parameters, technical specifications, privacy and regulatory guidelines (including applicable Mobile Marketing Association guidelines), design and functionality requirements, Mobile Content parameters and all other criteria, requirements and implementation processes set forth on Dada’s “Specifications Page” located at http://opendada.com/Partner_Policies, as may be updated by Dada from time to time.

q)   “Spyware” means any Widget that, without the end user’s knowledge, gathers end user data and communicates or allows the exchange of information with an end user other than information (i) gathered in connection with services or information disclosed to the end user and subject to the Partner Application Terms of Use applicable to the end user or (ii) that does not constitute personally identifiable information or other legally prohibited information or information that is restricted from collection or use without the express, prior consent of the individual.

r)     “Terms & Conditions” means Dada’s Subscription Agreement, Terms of Service, Privacy Policy and all other terms and conditions applicable to a Customer’s agreement with us regarding the Dada Service, as may be updated from time to time.

s)    “Widget” means any application program or element of graphical user interface that displays information or provides a specific way for an end user to interact with an operating system, computer programs or code, including, without limitation, that or any other application networks, systems, servers or other programs.

2)   PURPOSE OF PAI AGREEMENT; LICENSE GRANT

a)   Dada and Partner desire to work together to make the Dada Service available to end users of Partner Sites and/or Partner Applications through the display of the Integration on Partner Sites and/or Partner Applications.

b)   Subject to the terms and conditions of this PAI Agreement, Dada grants to Partner a limited, non-exclusive, non-transferable, non-sublicenseable license to (i) use the Dada Tools for the sole purpose of working with Dada to develop and offering to prospective Customers the Integration on Partner Sites and/or Partner Applications and (ii) offer and promote the Dada Services in conjunction with the Integration. All rights not expressly granted under this PAI Agreement are hereby expressly reserved by Dada.

c)    Partner may not disclose or use the Dada Tools other than as contemplated in this PAI Agreement, nor distribute, modify, adapt, translate, perform, transmit, copy or prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Dada Tools, unless specifically authorized by Dada in writing, in advance.

3)   DADA OBLIGATIONS

a)   Dada shall, at its own cost and expense, provide Dada Services and Mobile Content for the Dada Service. Dada shall be responsible for and will solely control the Dada Service, including, without limitation, all features, content, pricing and functionality, and has the unrestricted right to modify, suspend or amend same at all times, in its sole discretion.

b)   Dada shall administer first response Customer support to all inquiries or complaints received from Customers via the Dada Service.

c)    In no event shall Dada be liable for any breach by any Customer of the Terms & Conditions or any other agreement by which any Customer may be bound.

4)   PARTNER OBLIGATIONS

a)   Partner shall work with Dada to produce the Integration in accordance with the Specifications. Partner agrees to offer the Integration on the Partner Sites and Partner Applications to end users (i.e., prospective Customers) in accordance with the Specifications, this PAI Agreement, subject to the Terms & Conditions and other Dada terms applicable thereto.

b)   Partner shall at all times comply with the terms of Dada’s Marketing Regulations, as may be updated from time to time in Dada’s sole discretion, and which can be found at http://opendada.com/Partner_Policies. Partner shall not display the Integration on any Partner Site, Partner Application or other location directly or indirectly owned or controlled by Partner with or adjacent to any illegal, offensive, pornographic, obscene, violent, hate-related, controversial or otherwise objectionable material.

c)    Partner agrees that if it collects any information from end users it shall do so in accordance with all applicable laws, including, but not limited to, applicable privacy and data security laws, rules, and regulations. In addition, Partner shall post a clearly visible link to its privacy policy, on each Partner Site or Partner Application through which it collects information from end users.

d)   Partner shall be solely responsible for any and all royalties and other fees and payments required by any rights holders and licensors of content publicly performed on or made available on or through the Partner Sites and/or Partner Applications (including, without limitation, residuals or other payments to guilds or unions, for music clearances, Internet or wireless streaming, performance, synchronization  and mechanical rights) and all other fees, royalties, charges, payments or obligations arising out of the activities contemplated by this PAI Agreement) and Dada shall have no responsibility or liability for same whatsoever.

e)   Partner agrees that no Partner Sites shall use, nor shall Partner Applications be or include, Malware or be or enable distribution as Drive-by-Downloads. If any Partner Application is downloadable by an end user to end user’s computer or Mobile Device, Partner shall, at all times comply with all laws and regulations and use industry best practices with respect to the disclosures presented to and necessary consents obtained from end users and the download processes for the Partner Applications. Partner Applications shall be accompanied by Partner Applications Terms of Use and shall not be bundled with third party applications, software or Widgets.

f)     Partner shall implement the Integration in accordance with the Specifications. Partner shall use reasonable efforts to promptly report to Dada any malfunctions, defects or non-conformities in or affecting the Integration or the Dada Services and take all actions reasonably required to restore the Integration and/or the Dada Services to proper functioning and operation. Dada reserves the right, at its option and without liability, to require Partner to remove or modify Integration, at any time, in any and/or all locations and instances.

g)   Partner shall designate a senior manager reasonably acceptable to Dada who shall be the principal point of contact with Dada and who shall collaborate on ongoing initiatives and further collaborative opportunities.

5)   OBLIGATIONS OF BOTH PARTIES

a)   Except as expressly set forth in this PAI Agreement, as between Partner and Dada, each party retains all its right, title, and interest in and to its own proprietary information, material and other items and property, tangible or intangible and including all intellectual property rights therein.  

b)   Dada shall exclusively own all right, title and interest in and to Customer Data collected with respect to Customers, including, without limitation, Customers who access the Integration, as and if applicable. Partner shall not, directly or indirectly, disclose, process or use or authorize, enable, encourage or permit any third party to disclosure, collect, retain or use any Customer Data.

c)    Except as otherwise expressly provided herein, each party is responsible for all costs and expenses incurred by it in connection with the performance of its obligations under this PAI Agreement.

6)   PAYMENT; TAXES

a)   Payments. In consideration of the rights and obligations set forth herein, Dada shall pay Partner a commission for Customers obtained and which Partner can document were obtained through Partner Application and Integration hereunder, in accordance with the following payment schedule (“Payment”):

b)   Within sixty (60) days after the end of each calendar month, Dada shall pay Partner all Payments due Partner for that calendar month, unless the payment is less than $250 in which case Payment will be aggregated with the following months until at least $250 is reached. No other payments or fees shall be due or payable by Dada to Partner or any other party under or as a result of this PAI Agreement. Payments by Dada will be accompanied by a report, in reasonable detail, providing the basis for the Payment.

c)    All Payments made by Dada under this PAI Agreement are free and clear of, without reduction for, and exclusive of any taxes; provided, however, that if required by applicable law or regulatory authorities, Dada may reduce such Payments by the amount of any tax, duties or government required payments or fees (“taxes”) for which Partner is responsible, and pay same to the appropriate authorities and shall provide Partner notice of same. Partner agrees to complete all paperwork reasonably required by Dada to make Payments, before Dada will be obligated to make any Payments to Partner hereunder. Other than federal and state taxes imposed on the net income of Dada, Partner will bear responsibility for all taxes resulting from this PAI Agreement.

7)   CONFIDENTIAL INFORMATION

a)   “Confidential Information” means any and all trade secret, proprietary, confidential and sensitive information of Dada, whether marked as “Confidential” or identified with a similar designation, is known to be confidential, is identified or orally disclosed as being proprietary and/or confidential, or is obtained under circumstances in which it is or should be reasonably clear such information is proprietary and/or confidential. Partner shall not use or disclose, directly or indirectly, for its own benefit or the benefit of any other party any Confidential Information, except as necessary for performance of its obligation under this PAI Agreement and for no other purpose whatsoever.  Even when disclosure and/or use is permitted, Partner shall limit disclosure and use exclusively to its employees and agents with a need to know such Confidential Information to perform under this PAI Agreement; provided that each such employee or agent agrees to be bound by and comply with at least the same level of protections and restrictions as Partner hereunder.

b)   Neither party shall issue a news release or public announcement regarding this PAI Agreement or refer to or use the Marks of the other in publicity or marketing communications, without the prior written consent of the other party.

8)   TERM; TERMINATION

a)   The term of this PAI Agreement will begin on the Effective Date, which is the date Dada notifies Partner of acceptance of its Application and will continue until terminated by either party as permitted (“Term”).  Either party may terminate this PAI Agreement upon twenty-four (24) hours’ prior written notice to the other.

b)   Upon termination of this PAI Agreement, any provision which must survive to give effect to its plain meaning, shall survive termination of this PAI Agreement. Upon termination of this PAI Agreement, Partner will immediately cease using Dada Tools, Dada Services and Dada Marks and will return all Confidential Information in its possession or under its control to Dada unless Dada requests the return of same within 48 hours of termination of this PAI Agreement.

9)   REPRESENTATIONS AND WARRANTIES

a)   Partner represents and warrants to Dada that: (i) it has the full power and authority to enter into this PAI Agreement; (ii) neither the execution of this PAI Agreement nor the  performance of its obligations, provision of its services or furnishing or development of any goods, services, materials, information or other items, tangible or intangible, including, without limitation, Partner Sites, Partner Applications, Partner Marks, any portions of the Integration developed or provided by Partner, (individually and collectively, “Partner Materials”), do not and will not violate any other agreement by which it may be bound, nor infringe upon or misappropriate the rights or interests of any other party; (iii) upon acceptance of Partner’s Application by Dada, this PAI Agreement constitutes a legal, valid, and binding obligation of Partner, enforceable in accordance with its terms; (iv) Partner shall perform its obligations in compliance with all laws, rules and regulations and industry guidelines and best practices applicable to its business and activities; (v) it has all necessary rights, title, and interest in and to the Partner Materials, to perform its obligations free and clear of all claims, demands, encumbrances, liens and security interests; (vi) to Partner’s knowledge, using reasonable industry standard and commercial measures, the Partner Materials are free of Malware; (vii) the Integration developed, provided and/or controlled by Partner will be in accordance with the Specifications; (viii) no Partner Material or activities or conduct will slander, defame, libel or invade the right of privacy, publicity or other rights of any person or generate spam, phish or violate any law, (viii) the Partner Applications are not and will not be Malware, Adware, Spyware or be distributed as Drive-by-Downloads and will comply with the terms and policies of any sites on which they are placed and (ix) it will not export the Integration or Dada Tools in any manner contrary to the export regulations of the United States. Partner will not remove or alter any rights or other notices, symbols, or labels of Dada.

b)   Partner shall: (i) conduct its business in a manner that reflects favorably at all times on Dada Services and the good name, goodwill and reputation of Dada; (ii) avoid deceptive, misleading or unethical practices that are or might be detrimental to Dada or the public, including but not limited to disparagement of Dada or its services or products; and (iii) make no representations, warranties or guarantees to third parties with respect to the Dada, Dada Services, Dada Tools or otherwise with respect to Dada.  

c)    UNLESS EXPRESSLY SET FORTH IN THIS PAI AGREEMENT, NEITHER PARTY MAKES ANY OTHER OR DIFFERENT REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, TO EACH OTHER TO ANY CUSTOMER OR ANY OTHER PARTY UNDER THIS PAI AGREEMENT.  BOTH PARTIES EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR PERFORMANCE. DADA MAKES NO REPRESENTATION OR WARRANTY THAT THE DADA SERVICE WILL BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE OR OPERATE WITHOUT ERROR.

10)          LIMITATION OF LIABILITY; INDEMNIFICATION

a)    In no event shall Dada be liable to Partner for any indirect, consequential, incidental, punitive, special exemplary or other such damages, regardless of the form of action or the basis of the claim and whether or not a party has been advised of the possibility of such damages. If, for any reason, Dada shall be found liable to Partner in damages and notwithstanding any claim that such damages are inadequate or that any remedy fails of its essential purpose, in no event shall Dada’s liability hereunder exceed provable direct damages no greater than the amount of Payments paid to Partner by Dada in the six (6) months immediately preceding the first date the claim or cause of action arose; provided, however, that the foregoing limitation shall not apply to undisputed Payments owed by Dada to Partner for the proper performance of its obligations hereunder.

b)   Partner agrees to defend Dada against any and all claims, demands, proceedings, actions and causes of action brought by a third party that is based upon, arises out of, or relates to the alleged or actual breach of any of Partner's representations, warranties, obligations or covenants in this PAI Agreement (“Claims”). Partner further agrees to indemnify and hold Dada harmless from and against any and all losses, damages, liabilities, costs and expenses (including reasonable attorneys’ fees) arising out of any Claims.

11)              General

a)   Assignment. Partner may not assign, transfer, subcontract or delegate any of its rights or obligations under this PAI Agreement without the prior written consent of Dada and any attempt to do so without such consent shall be void.

b)   Governing Law; Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York that apply to contracts made and wholly performed by parties in New York. The federal and state courts in the State, City and County of New York have and the parties hereby submit to the exclusive jurisdiction of such courts.

c)    Independent Contractors.  The parties are independent contractors and neither has any right to obligate or bind the other. There are no third party beneficiaries.

d)   Notices.  All notices under this PAI Agreement must be in writing, sent by registered mail, return receipt requested, by facsimile transmission with machine confirmation or delivered personally to the address specified in the Application.  All notices will be presumed to be effective when personally delivered, upon receipt of facsimile transmission delivery receipt or three (3) days after mailing as specified.

e)   Interpretation.  Headings are for reference and do not affect meaning. Words will not be construed against the party that drafted them. Waivers of any rights, remedies, options or otherwise are only effective if made in writing and signed by both parties and only apply to the extent set forth therein. Amendments must also be in writing and signed with the physical handwritten signature of both parties to be effective and no conduct, trade usage, practices or custom, nor any exchanges of emails or other communication shall be construed as a writing or serve to amend this PAI Agreement.

f)     Entire Agreement. This PAI Agreement, together with all documents and materials specifically referred to in this PAI Agreement and which are incorporated by this reference and form a part of this PAI Agreement,  represents the entire agreement and understanding of the parties with respect to the subject matter and supersedes all prior and contemporaneous agreements, representations, negotiations and/or understandings, written or oral, for all purposes.