Publisher Agreement

 

VirtualSKY
Publisher Agreement

Last Updated: July 6th, 2016
 

PLEASE READ THIS AGREEMENT CAREFULLY.  BY CHECKING THE BOX INDICATING “I AGREE TO THE TERMS OF THE PUBLISHER AGREEMENT” OR BY DOWNLOADING, ACCESSING OR USING THE VIRTUALSKY TECHNOLOGY OR SERVICE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT.  IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT DOWNLOAD, ACCESS OR USE THE VIRTUALSKY TECHNOLOGY OR SERVICE.

This Publisher Agreement (“Agreement) is made by and between you, a developer or owner of mobile Applications (“Publisher”) and Airpush, Inc. (“VirtualSKY”) to provide the Service.  VirtualSKY and Publisher (together, the “Parties and individually, a “Party) hereby agree as follows:

1. Definitions

  1. Ad(s)” means an advertisement (including any content therein, including graphics, hyperlinks, text, images, banners, videos and other promotional content) provided by VirtualSKY to Publisher for display in an Application, such as an Experience Ad or Sponsor Ad.
  2. Advertiser” means a third party provider of Ads.
  3. Application” means a virtual reality application owned or operated by Publisher on which Publisher has a legal right to display Ads.
  4. Consumer” means a consumer end user of the Application.
  5. Confidential Information” shall refer to any information shared by VirtualSKY, including its software, tools, know-how, designs, technical information, proprietary methodologies, any other information relating to such party that is not generally known to the public, including information about its personnel, products, customers, financial information, marketing and pricing strategies, services or future business plans; and any other information which, from all the relevant circumstances, should reasonably be assumed to be confidential and proprietary. Any data generated or collected under this Agreement on the Ads, Advertisers, Consumers, Service, and Technology is the Confidential Information of VirtualSKY.
  6. Content Policy” means the Airpush Acceptable Use Policy, as amended from time-to-time available at www.airpush.com/acceptable_use_policy/.
  7. Event” means a full run of the Ad viewed by a Consumer.
  8. Intellectual Property Rights” means any and all copyrights, patents, trademarks, trade secrets and/or any other intellectual property rights.
  9. Service” means the VirtualSKY Technology, website and platform allowing the delivery of Ads through Publisher Applications.
  10. Site” means the VirtualSKY website and web-interface allowing Publisher to access statistical and payment information.
  11. Site Terms” means the Airpush Site Terms, as amended from time-to-time, available at http://www.airpush.com/siteterms/ and Privacy Policy, as amended from time-to-time, available at http://www.airpush.com/privacypolicy/.
  12. Technology” means any technology provided by VirtualSKY related to the provision of the service, such as a software development kit (SDK), including source code, software, documentation, and any updates or new or alternative versions thereof.
  13. Technology Privacy Policy” means the Airpush Technology Privacy Policy, as amended from time-to-time, available at www.airpush.com/technology_privacy/.
  14. Update” means any new Technology provided by VirtualSKY, including new SDK versions or patches.

2. Limited License

  1. License Grant. Subject to the terms and conditions of this Agreement, VirtualSKY grants Publisher a limited, non-exclusive, non-transferable and non-sublicensable license to:
    1. Install and use the VirtualSKY Technology solely in Publisher’s Application(s) that will access and use the Service to deliver Ads to Consumers; and
    2. Access and use the Service to enable VirtualSKY to provide Ads to Consumers’ virtual reality devices through Publisher’s Application.
    3. To provide the Service, Publisher authorizes VirtualSKY to:
      1. access, index, store, and cache requests made from Publisher’s Application to VirtualSKY including, without limitation, through automated means; and
      2. provide Ads to Consumers’ mobile devices through Publisher’s Application and collect Consumer data as described in its Technology Privacy Policy.
  2. Limitations. Section 1(a) states the entirety of Publisher’s rights with respect to the VirtualSKY Technology and Service.  VirtualSKY reserves all rights not expressly granted in this Agreement.  Without limiting the foregoing, Publisher will not, and Publisher will not authorize or permit any third party to do any of the following unless expressly authorized in this Agreement or in writing by VirtualSKY: (i) reproduce, license, distribute, publicly perform or publicly display, lease, rent, transfer, resell or otherwise dispose of the Technology or the Ads; (ii) distribute any source code provided as part of the VirtualSKY Technology; (iii) modify, alter or create any derivative works of the Technology; (iv) reverse engineer, disassemble, decompile or attempt to uncover the source code for or any trade secrets related to the Technology except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation; (v) work around any technical limitations in the Technology; (vi) remove, alter or obscure any proprietary rights or other notice on the Technology; (vii) use the VirtualSKY Technology or the Service other than for its intended purpose; (viii) use the Technology to create (or facilitate the creation of) any product or service that is in competition with the Technology or Service, including connecting to any other product or service using the Technology or Service; or (ix) combine the Technology so that Publisher restricts or charges for access to the Technology or Service. Any access or use of the VirtualSKY Technology or the Service other than as specifically authorized herein, without the prior written permission of VirtualSKY , is strictly prohibited and will immediately terminate the license granted in this Agreement.  Such unauthorized use may also violate applicable laws including, without limitation, copyright and trademark laws, and applicable privacy and communications regulations and statutes.  Unless stated in this Agreement, nothing in this Agreement will be construed as conferring any right or license to the VirtualSKY Technology or Service and any related Intellectual Property Rights, whether by estoppel, implication or otherwise.  This license is revocable by VirtualSKY at any time.
  3. Documentation.  Publisher may make and use a reasonable number of copies of any documentation provided with the VirtualSKY Technology licensed hereunder; provided, that such copies will only be used for the purpose described in section 1(a) and are not republished or redistributed (either in hard copy or electronic form) beyond Publisher’s premises.

3. Proprietary Rights

  1. Ownership.  The VirtualSKY Technology, Site, and Service (including, without limitation, the VirtualSKY logo, and all designs, text, graphics, pictures, information, data, software, sound files, other files and the selection and arrangement thereof) are valuable property of VirtualSKY protected by copyright and other intellectual property laws.  The Site and Service are and will remain the sole property of VirtualSKY or its licensors and are protected by U.S. and international law.  Other than the limited license expressly set forth in Section 1(a), Publisher does not acquire any title or ownership rights in the VirtualSKY Technology, Site and Service and any related Intellectual Property Rights.
  2. Unauthorized Use.  Publisher will promptly notify VirtualSKY of any unauthorized use of the VirtualSKY Technology, Site or Service that comes to Publisher’s attention.  In the event of any such unauthorized use by Publisher or Publisher’s employees, agents or representatives, Publisher will use its best efforts to terminate such unauthorized use and to retrieve any copy of the VirtualSKY Technology in the possession or control of the person or entity engaging in such unauthorized use.  Publisher will immediately notify VirtualSKY of any legal proceeding initiated by Publisher in connection with such unauthorized use.  VirtualSKY may, at its option and expense, participate in any such proceeding and, in such event, Publisher will provide such authority, information and assistance related to such proceeding as VirtualSKY may reasonably request to protect VirtualSKY’s interests.

4. Eligibility, Account and Site

  1. Eligibility.  If Publisher is downloading, accessing or using the VirtualSKY Technology or the Service on behalf of any entity, Publisher represents and warrants that Publisher is authorized to accept this Agreement on such entity’s behalf, and that such entity agrees to take responsibility for and indemnify VirtualSKY for Publisher’s violation of this Agreement.
  2. Registration.  Publisher must register on the Site to access account statistics and payment information. Publisher will be solely responsible for providing truthful, current and complete information and for all activities that occur under Publisher’s account.  Publisher is required to maintain the security of its account and notify VirtualSKY in the even of a suspected breach or unauthorized access.
  3. Site terms.  The VirtualSKY Site Terms and Privacy Policy apply to Publisher’s access and use of the Site and Services.  VirtualSKY has the right to terminate or suspend Publisher’s access to the Site, with or without notice, in the event that Publisher violates the Site Terms or any term of this Agreement.

5. Publisher Obligations

Publisher agrees to allow: (i) the VirtualSKY Technology to enable Advertisers and VirtualSKY to collect information from Publisher and from Consumers’ mobile devices that access Publisher’s Application; (ii) the VirtualSKY Technology to deliver Advertisements to such Consumers mobile devices from Advertisers; and (iii) VirtualSKY to utilize information collected for marketing and advertising purposes offline or not specific to a campaign as specified in its Technology Privacy Policy.

  1. Application Category.  When setting up a new Application through the Service’s “Add App” feature, Publisher must select a category that best describes its Application.  If Publisher needs assistance in determining what category best describes its Application, Publisher should contact support@airpush.com.
  2. Compliance with Laws and Industry Standards.  Publisher represents and warrants that Publisher complies with all applicable laws, regulations, and industry standards (including, but not limited to, any applicable privacy and security laws, regulations, and mobile and advertising industry standards such as applicable Digital Advertising Alliance guidelines) associated with Publisher’s Application and any collection, use and disclosure of Consumer data by Publisher or any third party via Publisher’s Application. Publisher will ensure it provides clear, prominent notice of how Publisher and third parties, such as VirtualSKY, collects, store, and use Consumer data and an industry standard opt-out of interest based advertising. Publisher is solely responsible for ensuring that its Application is in compliance with all applicable laws and regulations.
  3. Compliance with VirtualSKY Policies.  Publisher agrees that all of its Applications comply with the Content Policy.
  4. Compliance with Third Party Terms.  Publisher agrees to comply with any applicable third party terms, policies, guidelines, or other applicable terms that apply to Publisher’s Application, distribution, data handling and business practices, including, but not limited to Publisher policies for Android/Google Play, Unity, the Android Software Development Kit, and iOS/Apple App Store policies.Some versions of the VirtualSKY SDK include software that is licensed pursuant to the License Agreement for the Android Software Development Kit (http://Publisher.android.com/sdk/index.html) (the “Android License”) and may only be used in applications designed for mobile devices using Google, Inc.’s Android operating system.  Except as otherwise agreed upon by the parties in writing, the warranties, obligations and liabilities of VirtualSKY and the remedies of Publisher with respect to any embedded third party software will be limited to whatever recourse may be available against the third party provider of such embedded third party software and are subject to the restrictions and other limitations as may be set forth in the applicable provisions of the Third Party Terms.
  5. Updates. Publisher agrees to install Updates within five (5) business days of receipt of notice of such Updates and push such Updates live and into production accessible to current and new Consumers within ten (10) business days of receipt.   Notwithstanding the foregoing, if VirtualSKY makes any updates required under law or industry standards, Publisher shall immediately install such Update.

6. Advertisements

VirtualSKY does not control, endorse or adopt any Advertisements and makes no representation or warranties of any kind regarding the content of the Advertisements, including, without limitation, regarding the accuracy, completeness or decency of any Advertisement. VirtualSKY is not responsible or liable in any manner for any Advertisements and undertakes no responsibility to update or review any Advertisements. Within certain limits set by VirtualSKY, Publisher will have the ability to control the frequency and types of ad units that are delivered to Consumers’ mobile devices. Publisher agrees not to alter, modify, remove, obscure, hinder, reverse engineer, or otherwise interfere with any Advertisement for an Application in any manner.

7. Payments

  1. Compensation. VirtualSKY will pay Publisher as follows:
    1. Advertisers pay VirtualSKY based upon the completion of an Event.  VirtualSKY will compile and calculate the data necessary to determine Publisher’s compensation.  VirtualSKY’s figures and calculations regarding Publisher’s compensation will be final and binding.  Publisher’s compensation will only include revenue actually received by VirtualSKY from the Advertisers for Events less: (i) any returns, credits or other similar allowances made by VirtualSKY to a particular Advertiser; and (ii) any applicable taxes, commissions, carrier fees and other similar taxes, fees and expenses.
    2. VirtualSKY will have no duty to compensate Publisher for any revenue received by VirtualSKY for any services provided by VirtualSKY to Advertisers, including consulting, ad lay-out, copy writing or any other similar services.  In addition, VirtualSKY may withhold compensation in the event that Publisher is in breach of any term of this Agreement, breach of any term of its Content Policy, and in the event that VirtualSKY suspects potentially fraudulent traffic coming from Publisher’s Application.  VirtualSKY may offset payment with any fees owed by Publisher under this or any other agreement Publisher has with VirtualSKY (Airpush, Inc.).
  2. Taxes. Publisher is responsible for collecting and remitting any income, value added or other taxes, such as consumption taxes, imposed on the payments to Publisher. The amounts paid to Publisher hereunder are exclusive of any taxes that may apply to such payments. VirtualSKY maintains the right, however, to deduct or withhold any applicable taxes from amounts it owes Publisher, and the amounts due, as reduced by such deductions or withholdings, will constitute full payment to Publisher.
  3. Documents. If located in the United States, Publisher will submit to VirtualSKY a W-9 IRS tax document (via a digital copy uploaded to VirtualSKY portal account). If Publisher is located outside the United States, Publisher will submit to VirtualSKY an original W-8 IRS tax document or other IRS certificate acceptable to VirtualSKY.  Publisher will determine which IRS document is appropriate for its needs, and VirtualSKY will not be liable for Publisher’s failure to submit the appropriate documentation.  Publisher will submit additional documentation if and as directed by VirtualSKY when required to process payment or required under law.  In the event that Publisher does not provide VirtualSKY with appropriate tax, bank, or other information required by VirtualSKY, then VirtualSKY may withhold payment until it receives such information.
  4. Invalid or Fraud Traffic. Publisher will not be due any compensation for impressions or clicks from blank pages or on pages with no content, locations or other properties with non-human users, or on any surf bars or any other traffic which it deems to be fraudulent, bot, non-human, or otherwise invalid, as determined in VirtualSKY’s sole discretion.

8. Submissions & Confidentiality

  1. Submissions. Any questions, comments, suggestions, ideas, plans, notes, drawings, original or creative materials or other information submitted about VirtualSKY, its VirtualSKY Technology, Site or Service (collectively, “Submissions“), whether provided to VirtualSKY by email or otherwise, are non-confidential and will become the sole and exclusive property of VirtualSKY, including all related intellectual property rights without acknowledgment or compensation to Publisher.
  2. Confidentiality. Publisher agrees that it will not disclose any Confidential Information of VirtualSKY to any third-party, and that it will not use Confidential Information for any purpose not permitted under this Agreement.  Publisher will protect the VirtualSKY Confidential Information in the same manner that it protects its own confidential and proprietary information, but in no event shall such protection be less than a reasonable standard of care.  This section 8(b) supplements and does not supersede any existing non-disclosure or confidentiality agreements between the parties.

9. Export Restrictions

Publisher is responsible for complying with all trade regulations and laws both foreign and domestic. Except as authorized by law, Publisher represents and warrants that Publisher will not export or re-export the VirtualSKY Technology to any county, or to any person, entity, or end-user in a manner prohibited by U.S. export controls, restrictions and regulations. Publisher further represents and warrants that it (i) is not located in, under the control of, or a national or resident of any country to which the United States has embargoed goods or services; (ii) is not a “Specially Designated National” by the Office of Foreign Assets Control; and (iii) is not placed on the U.S. Department of Commerce’s Denied Persons List; and (iv) will not access or use any Technology if any applicable laws in Publisher’s country prohibit it from doing so in accordance with this Agreement. Publisher further represents and warrants that Publisher will not export the VirtualSKY Technology to any person or entity that falls within (i-iv) above and that no U.S. federal agency has suspended, revoked, or denied Publisher’s export privileges.

10. Indemnification

  1. Indemnity. Publisher will defend, indemnify and hold harmless VirtualSKY, its affiliates, independent contractors, service providers and consultants, its and their respective directors, employees and agents, from and against any claims, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys’ fees) arising out of or related to: (a) the Application, including violations of any third party terms or violations of any laws, regulations or industry best practices in the relevant jurisdictions; (b) Publisher’s use of the VirtualSKY Technology, the Site or the Service; (c) Publisher’s violation of any representations and warranties or any other term of this Agreement; or (d) Publisher’s violation of any rights of a Consumer.
  2. Process. VirtualSKY will have the right to approve the counsel selected by Publisher for defense of any such claim, which approval will not be unreasonably withheld. Publisher will provide VirtualSKY prompt written notice of any such claim and such information and assistance as Publisher may reasonably request to help Publisher defend such claims; provided that Publisher pay or reimburse all of the costs and expenses reasonably incurred by VirtualSKY in connection with any assistance requested by Publisher under this Section. Publisher will not have any right to settle any such claim without VirtualSKY’s written consent, if such settlement arises from or is part of any criminal action, suit or proceeding or contains a stipulation to or admission or acknowledgment of, any liability or wrongdoing (whether in contract, tort or otherwise) on the part of VirtualSKY or otherwise requires VirtualSKY to take or refrain from taking any material action (such as the payment of fees). VirtualSKY may, at its option and expense, participate in, or take control over, the defense of any such claim and, in such event, Publisher will provide such authority, information and assistance related to such proceeding as VirtualSKY may reasonably request to protect VirtualSKY’s interests.
  3. Insurance. Publisher will maintain such insurance policies (including, without limitation, commercial liability insurance and cyber liability insurance) as may be sufficient to protect Publisher against all applicable risks arising out of Publisher’s use of the VirtualSKY Technology or Service. Publisher will provide VirtualSKY with certificates of insurance and other supporting materials as VirtualSKY may reasonably request to verify Publisher’s continuing compliance with the preceding sentence.

11. Disclaimer

THE VIRTUALSKY TECHNOLOGY, THE SITE, THE ADS, AND THE SERVICE ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. VIRTUALSKY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES AND ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, RELIABILITY, ACCURACY, TITLE AND NON-INFRINGEMENT AS TO THE VIRTUALSKY TECHNOLOGY, THE SERVICE AND THE SITE, INCLUDING THE INFORMATION, CONTENT AND MATERIALS CONTAINED THEREIN. VIRTUALSKY DOES NOT REPRESENT OR WARRANT THAT THE VIRTUALSKY TECHNOLOGY, THE ADS, THE SERVICE OR THE SITE ARE ACCURATE, COMPLETE, RELIABLE, FREE OF VIRUSES OR HARMFUL COMPONENTS, CURRENT OR ERROR-FREE. PUBLISHER’S USE OF THE VIRTUALSKY TECHNOLOGY, SERVICE OR THE SITE IS AT PUBLISHER’S OWN DISCRETION AND RISK AND PUBLISHER IS SOLELY RESPONSIBLE FOR ANY DAMAGE TO ITS OR ITS END-USERS’ COMPUTER OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH USE. PUBLISHER SHOULD USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES FROM ANY DOWNLOAD.

12. Limitation of Liability

IN NO EVENT SHALL VIRTUALSKY, ITS AFFILIATES, INDEPENDENT CONTRACTORS, ADVERTISERS, SERVICE PROVIDERS, AND CONSULTANTS, AND ITS AND THEIR DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OR INABILITY TO USE THE VIRTUALSKY TECHNOLOGY, THE SERVICE, THE SITE, THE ADS, THE CONTENT OR THE MATERIALS CONTAINED IN OR ACCESSED THROUGH THE SITE, INCLUDING WITHOUT LIMITATION ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE BY PUBLISHER ON ANY INFORMATION OBTAINED FROM VIRTUALSKY, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO VIRTUALSKY’S RECORDS, PROGRAMS OR SERVICES. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF VIRTUALSKY ITS AFFILIATES, ITS ADVERTISERS, INDEPENDENT CONTRACTORS, SERVICE PROVIDERS, AND CONSULTANTS, AND ITS AND THEIR DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE VIRTUALSKY TECHNOLOGY OR TO THIS AGREEMENT EXCEED FIVE HUNDRED DOLLARS ($500 USD).

13. Arbitration

  1. Arbitration. Publisher and VirtualSKY agree to arbitrate any dispute arising from this Agreement or relating to the VirtualSKY Technology and the Service, except that Publisher and VirtualSKY are NOT required to arbitrate any dispute in which either party seeks equitable or other relief for the alleged unlawful use of any Intellectual Property Rights.
  2. Process. In the event of any claim or demand by either Party arising out of this Agreement, the Parties agree to arbitrate any such dispute, claim, or demand in accordance with the Expedited Procedures of JAMS (“JAMS”), regardless of the amount in controversy. Each Party agrees: (a) to notify each other of any dispute within thirty (30) days of when it arises; (b) to attempt informal resolution prior to any demand for arbitration; (c) that any arbitration will occur in Los Angeles, California; and (d) that arbitration will be conducted confidentially by a single arbitrator in accordance with the Rules of the JAMS.  The state or federal courts in Los Angeles County, California have exclusive jurisdiction over any appeals of an arbitration award and over any suit between the parties not subject to arbitration.
  3. Waiver of Class Action. WHETHER THE DISPUTE IS HEARD IN ARTBITRATION OR COURT, PUBLISHER AND VIRTUALSKY WILL NOT COMMENCE AGAINST THE OTHER A CLASS ACTION, CLASS ARBITRATION, OR OTHER REPRESENTATIVE ACTION OR PROCEEDING.

14. Termination

  1. Termination by VirtualSKY. Notwithstanding any of the terms of this Agreement, VirtualSKY reserves the right, without notice and in its sole discretion, to (a) terminate Publisher’s license to use the VirtualSKY Technology or (b) block or prevent Publisher’s future access to, and use of the VirtualSKY Technology.  Publisher’s license to use the VirtualSKY Technology may also be terminated without notice and in VirtualSKY’s sole discretion if Publisher’s right to use the Service or Site is cancelled or terminated or Publisher is otherwise no longer registered to use the Service or Site.  VirtualSKY may discontinue the VirtualSKY Technology at any time, in which case this Agreement shall terminate automatically without notice.
  2. Termination by Publisher. Publisher may terminate this Agreement by ceasing use of the VirtualSKY Technology and deleting all copies of the VirtualSKY Technology, including any part of a SDK, in Publisher’s possession or control.  In the event of the termination of this Agreement for any reason: (i) the license granted to Publisher in this Agreement will terminate; and (ii) Publisher must immediately cease all use of the VirtualSKY Technology and destroy or erase all copies, full or partial, of the VirtualSKY Technology in Publisher’s possession or control. In the event that: (i) Publisher terminates this Agreement prior to offsetting the Fees; (ii) Publisher does not properly integrate the Technology; or (iii) Publisher breaches this Agreement, then Publisher shall have to immediately repay the Fees not offset against Ads shown by VirtualSKY.
  3. Modification or Discontinuance by VirtualSKY. VirtualSKY reserves the right to modify or discontinue, temporarily or permanently, the VirtualSKY Technology or Service, or any features or portions thereof, without prior notice.  Publisher agrees that VirtualSKY will not be liable for any modification, suspension or discontinuance of the VirtualSKY Technology or Service, or any part thereof.
  4. Enforcement. In addition to all of VirtualSKY’s rights and remedies available under VirtualSKY terms, at law or equity, if VirtualSKY suspects that Publisher’s Application violates its policies or these terms, Publisher’s Application may be suspended from making ad calls, may be terminated, or may no longer be accepted in the VirtualSKY network. VirtualSKY may also suspend other Applications by Publisher for further investigation, terminate Publisher’s account, and decline to accept future Applications from Publisher to participate in the VirtualSKY network.

15. Miscellaneous

  1. Amendment.  VirtualSKY reserves the right to change or modify any of the terms and conditions contained in this Agreement or applicable policies at any time and in its sole discretion.  Any changes or modification will be effective immediately upon posting of the revisions on the Site, and Publisher waives any right Publisher may have to receive specific notice of such changes or modifications.  Publisher’s continued use of the VirtualSKY Technology following the posting of changes or modifications will confirm Publisher’s acceptance of such changes or modifications.  Therefore, Publisher should frequently review this Agreement and applicable policies from time to time to understand the terms and conditions that apply to Publisher’s use of the VirtualSKY Technology.  If Publisher does not agree to the amended terms, Publisher must stop using the VirtualSKY Technology.
  2. Nonwaiver. Any failure by VirtualSKY to insist upon or enforce performance by Publisher of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement or otherwise by law will not be construed as a waiver or relinquishment of any right to assert or rely upon the provision, right or remedy in that or any other instance; rather, the provision, right or remedy will be and shall remain in full force and effect.
  3. Survival. The respective rights and obligations of the parties under Sections 2, 3, 5, 6, 8, 9, 10, 11, 12, 13 and 15 shall survive any termination or expiration of this Agreement.
  4. General:
    1. Contractors.  The parties and their respective personnel are and shall be independent contractors and neither party by virtue of this Agreement shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party.
    2. Assignment. Publisher may not assign this Agreement or any right, interest or benefit under this Agreement without prior written consent of VirtualSKY.  Any attempted assignment in violation of the foregoing will be void.  Without notice to Publisher, VirtualSKY may assign or transfer this Agreement, to an affiliate or in connection with a merger, acquisition, divestiture, spin off, change of control, corporate reorganization or similar such transaction or sale of all or substantially all of its assets related to this Agreement. Subject to the foregoing, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by any permitted assignee.
    3. Severability. If any provision of this Agreement shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions.
    4. Entire Agreement. This Agreement constitutes the complete and exclusive statement of all mutual understandings between the parties with respect to the subject matter hereof, superseding all prior or contemporaneous proposals, communications and understandings, oral or written.
    5. Conflicting Terms. In case of any discrepancy between this Agreement and any other terms and conditions, this Agreement shall prevail.
    6. Other Agreements. This Agreement does not alter in any way the terms or conditions of any other agreement Publisher may have with VirtualSKY for products, services or otherwise.