Terms of Service

Last Revised July 13, 2015

PLEASE READ VERY CAREFULLY THESE TERMS AND CONDITIONS BEFORE REGISTERING AS A PUBLISHER AND/OR AN ADVERTISER. PARTICIPATION IN YASHI’S SERVICES INDICATES THAT YOU ACCEPT THESE TERMS AND CONDITIONS, OUR TERMS OF USE AND PRIVACY POLICY. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS, PLEASE DO NOT REGISTER FOR OR PARTICIPATE IN THE SERVICES. YOU MUST HAVE THE REQUISITE AUTHORITY, POWER AND RIGHT TO FULLY BIND THE PUBLISHER AND/OR ADVERTISER WISHING TO USE THE SERVICES. IF YOU DO NOT HAVE THE AUTHORITY TO BIND THE PUBLISHER AND/OR ADVERTISER WISHING TO USE THE SERVICES, DO NOT USE THE SERVICES. IN THE EVENT OF A CONFLICT, THE TERMS OF THESE TERMS AND CONDITIONS WILL PREVAIL.

You must agree to the terms of this Agreement before using the Services. Your permission to use the Services is conditioned on your acceptance of the terms and conditions set forth below. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT USE THE SERVICES. By undertaking any of the following actions, you agree to be bound by the terms of this Agreement and all terms, policies and guidelines incorporated by reference: (a) clicking that you accept or agree to these terms when presented with the option to do so; (b) registering for the Services; or (c) using the Services. By agreeing to be bound by the terms of this Agreement, you acknowledge and agree that you have read, understand and accept the terms and conditions described below effective as of the date of such action (the “Effective Date‘). Any amendments, modifications or waivers of this Agreement may only be made in a writing executed by Yashi. Yashi reserves the right, in its discretion, to modify this Agreement at any time by posting a notice on its website (www.yashi.com) or by sending you a notice via email or postal mail. Use of the Services by you following such notification will constitute your acceptance of the modified terms and conditions.

 

FOR PUBLISHERS (YASHI PUBLISHER TERMS AND CONDITIONS):

These Yashi Publisher Terms and Conditions form a legally binding agreement (“Agreement“) between you (“Publisher“) and Yashi, Inc., a Delaware corporation with a principal place of business at 1433 Hooper Avenue, Toms River, NJ 08753 (“Yashi“). All capitalized terms used and not defined elsewhere in this Agreement have the meanings set forth in Section 19.

 

1. CERTAIN REQUIREMENTS.

(a)       Yashi Network.   Yashi reserves the right, in its sole discretion and without liability, to (i) refuse to provide the Services to any new or existing Publisher or Publisher Application(s) for any reason; and (ii) reject, omit, or exclude any Publisher or Publisher Application(s) for any reason at any time with or without notice to the Publisher. This Agreement is voidable by Yashi immediately if Publisher misrepresents itself in any way. Unless otherwise approved by Yashi in writing, Publisher may only have one (1) membership account with Yashi, however, such account may include multiple Publisher Applications within each respective account designation. This Agreement applies to each Publisher Application.

(b)       Pre-Approval Required.   All Publisher Applications must be pre-approved in writing by Yashi and shall be on a case-by-case basis. Yashi may deny a request for approval for any reason, including without limitation any websites that relate to or have any characteristic of the following: (i) excessive ads, app – quest/test, user generated content (blogs, forums, discussion boards, chat rooms, etc.) that is not regulated; (ii) foreign websites; (iii) controversial issues (e.g. religion, sexual orientation and/or edgy humor); (iv) wrestling; (v) anime; (vi) gaming; (vii) old content; and/or (viii) poor quality design and functionality.

 

2. SERVICES.

Subject to the terms and conditions of this Agreement, Yashi will make the Services available to Publisher. Publisher may utilize the Services to sell Ad Inventory on Publisher Applications to Buyers, provided that Publisher remains at all times in full compliance with the terms and conditions of this Agreement. Publisher hereby appoints Yashi as Publisher’s representative, and grants Yashi the power and authority to act on Publisher’s behalf, with respect to the sale and optimization of Ad Inventory on the Publisher Applications through the Services.

 

3. PUBLISHER OBLIGATIONS.

(a)       Ad Inventory.   Publisher shall make Ad Inventory available for sale by Yashi by placing Ad Tags on Publisher Applications approved by Yashi.

(b)       Implementation of Ad Tags.   Yashi will make Ad Tags available to Publisher. Publisher will not copy, modify, take, sell, re-use or divulge in any manner any Ads or Ad Tags without Yashi’s prior written consent and any approved modifications shall be owned solely by Yashi. Publisher acknowledges that any modification of the Ad Tags may result in a failure of Ads to be served on Publisher Applications and in other errors and discrepancies. Yashi is not responsible for any failure, error or other discrepancy resulting from any modification, change or alteration of an Ad Tag by Publisher.

(c)       Publisher Applications.   Publisher may not place any Ads or Ad Tags on Publisher Applications that contain, promote, reference or have links to: (i) profanity, sexually explicit materials, hate material, materials that promote violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation, age, or family status, or any other materials deemed unsuitable or harmful to the reputation of Publisher or Yashi; (ii) software piracy (including but not limited to warez, cracking, etc.), hacking, phreaking, emulators, ROM’s, or illegal MP3 activity; (iii) websites under construction or that do not own the domain they are under; (iv) charity clicks/donations, paid to surf, personal sites, Publisher Applications not owned by or under the control of Publisher, ActiveX downloads, sites with no content or link sites, all affiliate links, or incentivized traffic; (v) material that promotes activities generally understood as Internet abuse, including by not limited to, the sending of unsolicited bulk email or the use of Spyware; (vi) material that violates applicable law, rules or regulations; (vii) material that promotes violence, the use of firearms, or unlawful subject matter or activities; (viii) material that is obscene, threatening, libelous, pornographic or defamatory; or (ix) material that violates the rights, including but not limited to the intellectual property rights of any third party (collectively, “Prohibited Content“).

(d)       Ad Placement & Tracking.   Publisher shall not: (i) place Ads in emails (unless approved by Yashi in writing) or SMS/text messages; (ii) place Ads on blank web pages or on web pages with no content; (iii) stack Ads (e.g. place on top of one another so that more than two (2) ads are next to each other); (iv) place Ads on non-approved websites, or in such a fashion that may be deceptive to a User; (v) incentivize offers or create an appearance to incentivize offers; (vi) place statements near the Ads requesting that Users “click” on the Ad (e.g., “Please click here,” “visit” the sponsor, “Please visit our sponsor”); (vii) place misleading statements near the Ad (e.g., “You will win $5,000″); (viii) redirect traffic to a website other than a Publisher Application; (ix) ask Users to take advantage of other ads or offers other than those listed by the particular Ad; (x) place Ads on personal web pages, non-English language pages (unless otherwise approved by Yashi in writing), or free hosted pages (e.g. Geocities, Xoom, Tripod, Talk City, etc.); (xi) serve Ads, or drive traffic to such Ads, using any downloadable applications (non-mobile Publisher Applications) without the prior written approval of Yashi, which, if provided, is subject in each case to the following condition: Ads delivered in such approved downloadable applications may only be shown once per User session when the application is active, enabled and clearly recognizable by the User as being active and enabled; serving Ads at any time when the downloaded application is not active is strictly prohibited and grounds for immediate termination without pay; (xii) use invisible methods to generate impressions, clicks, or transactions that are not initiated by the affirmative action of the User; (xiii) attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the Services, Ad Tags, source codes, links, pixels, modules or other data provided by or obtained from Yashi that allows Yashi to serve the Ad and measure its performance and operate the Services; (xiv) deliver in-page Ad code via pop-ups/unders; or (xv) participate in browser history sniffing.

(e)       Valid Impressions.   Publisher will not, and will not authorize any third party to use any automated means, including without limitation, agents, robots, scripts, or spiders, to access or manage Publisher’s account or to monitor or copy the Yashi Services or software, except as otherwise pre-approved in writing by Yashi. If Publisher commits fraudulent activities, including false clicks, false impressions, or incentivized clicks, or uses any method to artificially, fraudulently or invalidly increase the number of clicks, impressions or other payable actions on Ads served via the Services, including without limitation the following methods: (i) offering incentives; (ii) running “robots” or “spiders” or any other non-human means; and (iii) automatic Ad refreshes (unless instigated by a User-initiated page refresh) (collectively, “Prohibited Activities“), Publisher’s account may be permanently removed and Publisher shall not be compensated for fraudulent traffic as determined by Yashi in its sole discretion.

(f)       Technical Specifications.   Publisher will use reasonable efforts to comply, and to cause any third party operating any of the Publisher Applications on behalf of Publisher, to comply with any technical specifications provided by Yashi to enable Yashi to serve Ad Inventory to Publisher Applications.

4. Ad Content and Placement.

(a)       Compliance with Industry Standards.   Publisher agrees to undertake and place Ads in compliance with this Agreement, the Interactive Advertising Bureau Guidelines, Standards and Best Practices and the Mobile Marketing Association standards (for mobile Publisher Applications), including all Ad placement restrictions or channels specifications, in accordance with the highest industry standards. Publisher shall position the Ads in such a manner to assure that they are fully and clearly visible to consumers and displayed in a similar manner as other advertisers included in a Publisher Application.

(b)       Requirements for Conventional Websites.   All in page and video Ads placed on conventional websites must be placed above the fold or within 1,000 pixels of the top of the web page. Pop-under or InVue windows cannot be launched from conventional websites that launch more than a total of two (2) pop windows. skyscrapers or wide skyscrapers and half page formats cannot be placed on the same web page. Publisher agrees to use the Services for displaying Ads and an Ad may not be placed more than once per web page view.

(c)       Video Ads for Conventional Websites.   In-stream Ads may be associated with video, audio, or flash entertainment. In-stream video Ads may not be implemented in a stand-alone manner or with generic placeholder files. Publisher shall inform Yashi whether the video placement is in-stream pre-roll, in-stream mid-roll, in-stream post-roll or in-stream auto-start and whether the placement includes a synchronized companion banner and the category of content to which the placement is adjacent. Further, under no circumstances shall Publishers of conventional websites be permitted to run video Ads that: (i) are below-the-fold and auto-start; (ii) by default (i.e., without User interaction) do not play the sound track of the Ad; (iii) auto-start and are presented or located in such a manner that would make it unlikely that the Ads would be viewed by actual Users, whether or not the sound is defaulted to off; (iv) are located in downloadable applications; (v) are located in pop-up windows; or (vi) are located in 1×1 pixel windows. Publishers are prohibited from serving more than one pre-roll Ad at the same time, running multiple Ads in a pod, and auto-start videos.

(d)       Default Ads.   Publisher acknowledges and agrees that Yashi may not be able to fill one hundred percent (100%) of inventory with paying Ads. For conventional websites, Yashi may provide free Publisher-defined default redirects expressly for this reason. Publisher-defined default Ads must adhere to the content guidelines set forth inSection 3. If Publisher chooses not to specify a default redirect, Yashi will display so-called ‘house’ and/or ‘AdCouncil’ Ads on a conventional website when paid advertising is unavailable or when technical difficulties require it. Under no circumstances does Yashi guarantee to provide any percent fill of paid Ads to a Publisher Application.

(e)       Publisher Application Quality.   Any Publisher that commits fraudulent activities, including false clicks, false impressions, or incentivized clicks, may have its account terminated immediately and will not be compensated for fraudulent traffic as determined by Yashi in its sole discretion. For conventional websites, all Ads must be served from or through the Services. Stored images that are loaded from a different location will not count towards any statistic or payment.

5. YASHI OBLIGATIONS.

(a)       Services.   Yashi will use reasonable efforts to: (i) sell the Ad Inventory; (ii) place Ads in Ad Inventory; (iii) serve placed Ads to the Publisher’s Applications; (iv) verify transmission of all such Ads via the Publisher’s Applications; and (v) invoice and collect from Buyers revenues derived from the sale of Ad Inventory by Yashi to such Buyers.

(b)       Reporting.   Yashi will use reasonable efforts to provide Publisher with monthly reports of sales of Ad Inventory via the Services.

(c)       Support.   Yashi will use reasonable efforts to provide Publisher with support for the Ads and to handle all customer service issues related to any of the Ads. Yashi shall respond to and resolve all inquiries, problems and issues as soon as commercially practicable and in a professional and workmanlike manner.

6. LICENSE.

Subject to compliance with this Agreement, Yashi hereby grants to Publisher, and Publisher hereby accepts, a non-exclusive, non-transferable, non-assignable license, during the term of this Agreement, to access and use the Services and Ad Tags solely in connection with Publisher’s own business and for the purposes contemplated by this Agreement (the “License“). Publisher may not grant sublicenses of any kind under the License without the prior written consent of Yashi. Publisher may use the Services only in connection with its own business and for the purposes contemplated by this Agreement, including permitting Yashi to sell Ad Inventory on Publisher Applications.

 

7. LICENSE LIMITATIONS.

Except as expressly set forth in the License, Publisher has no rights with respect to the Yashi Property (defined below). Without limiting the foregoing, except as expressly set forth in the License, Publisher may not, directly or indirectly: (a) remove or modify any disclaimers, proprietary notices or copyright notices displayed on the Services; (b) create any web-based platform that infringes or misappropriates any Yashi Property; (c) sell, lease, sublicense or otherwise use, transfer or provide access to the Services (or any part thereof or any rights therein), directly or indirectly, to any third party or for the benefit of any Publisher partner, subsidiary or affiliate; (d) reverse engineer, disassemble, decompile, modify, enhance, correct, upgrade, change in any way, or create any derivative work based on Yashi Property; or (e) use, publish or display the Yashi Property in any way that may impair the validity of Yashi’s right in such property or take any other action that is inconsistent with the limitations set forth in this Section 7 .

 

8. PAYMENT TERMS.

(a)       Publisher Earnings.   Yashi will pay Publisher the Publisher Earnings as provided in Section 8(b) below. Publisher shall not invoice Yashi. All Publisher invoices will be discarded. Yashi reserves the right to set Ad campaign rates, which may vary with market conditions. Publisher Earnings will be determined by Yashi in its sole discretion, based on a number of factors, including the number of valid clicks on Ads, the number of valid impressions of Ads, the amount paid by a Buyer of Ad Inventory, and other events performed in connection with the display of Ads on Publisher Applications, in each case as determined by Yashi in its sole discretion and as adjusted to reconcile Publisher’s account to account for reporting and statistical errors, ad serving discrepancies, amounts not previously collected from a Buyer, and chargebacks, refunds or other adjustments. Payment of Publisher Earnings shall be based solely on records maintained by Yashi. In consideration for the License and provision of the Services, Yashi will retain all remaining amounts of Revenue after payment of the Publisher Earnings. Publisher hereby acknowledges that Yashi has no obligation to share with Publisher how Publisher Earnings are calculated or what portion of Revenue Publisher Earnings represent.

(b)       Payment Terms.   Within sixty (60) days following the end of each calendar month, Yashi will pay Publisher the Publisher Earnings with respect to such month. Notwithstanding the foregoing, upon termination of this Agreement for any reason, Yashi will remit final payment of Publisher Earnings to Publisher approximately one hundred and twenty (120) days after the last date of the calendar month in which this Agreement terminates. As a condition to Yashi’s obligation to make payments hereunder to Publisher, Publisher must log into their account and provide its mailing address and/or payment instructions, its email address, and a completed and accurate W-9 or equivalent (for US-based Publishers) or a completed and accurate W-8 or equivalent (for non-US-based Publishers). Publisher is responsible for promptly notifying Yashi of any changes to such information. Notwithstanding the foregoing, Yashi reserves the right to not distribute Publisher Earnings if: (i) such amounts do not equal at least one hundred dollars ($100) (the “Minimum Payment Threshold“) (all unpaid earnings will rollover to the next pay period; any Publisher account that goes unpaid for six (6) months, based on the Minimum Payment Threshold, is subject, in Yashi’s sole discretion, to immediate payoff and termination of Services); (ii) Publisher Earnings are generated by any Prohibited Activity; (iii) Publisher fails to complete any tax or reporting forms reasonably requested by Yashi or to provide Yashi with accurate tax information; (iv) Publisher’s account is Inactive; or (v) Publisher is otherwise in material breach of this Agreement. In addition, Publisher hereby acknowledges and agrees that Publisher will not be paid if Yashi is not paid by a Buyer and that Buyers reserve the right to withhold payment or to refuse payment of any amounts generated by Prohibited Activities. Yashi shall be entitled to withhold any actual bank fees related to any stop payment it is required to issue or for each wire transfer fee incurred. All payments are based on actual Revenues, as defined, accounted and audited by Yashi. Yashi may take legal action and reserves the absolute right to withhold payment from accounts for Publishers that violate any of the terms and conditions set forth in this Agreement. Unless otherwise stated, all payments shall be made in U.S. dollars and all amounts referenced herein refer to U.S. dollars.

Publisher acknowledges and agrees that Yashi may, without further notice to Publisher, permanently deposit into Yashi’s own accounts all funds, payments and other amounts related to the Services that are held by Yashi and that are due to Publisher (if any), but which Yashi is unable to pay or deliver to Publisher because Publisher’s account is Inactive.

 

(c)       Taxes.   All amounts payable hereunder are exclusive of any sales, use, excise, import or export and value added taxes and any penalty or interest imposed by any governmental authority, however designated (“Taxes“). Publisher is solely responsible for payment of any Taxes applicable to Publisher Earnings or the provision or use of Services to or by Publisher.

(d)       No Guarantee.

YASHI MAKES NO GUARANTEE REGARDING THE NUMBER OF IMPRESSIONS OF ADS OR CLICKS ON ANY AD, THE TIMING OF DELIVERY OF SUCH IMPRESSIONS AND/OR CLICKS, OR THE AMOUNT OF ANY PAYMENT TO BE MADE BY YASHI TO PUBLISHER UNDER THIS AGREEMENT. IN ADDITION, FOR THE AVOIDANCE OF DOUBT, YASHI DOES NOT GUARANTEE THAT THE SERVICES WILL BE OPERABLE AT ALL TIMES OR DURING ANY DOWN TIME (i) CAUSED BY OUTAGES TO ANY PUBLIC INTERNET BACKBONES, NETWORKS OR SERVERS, (ii) CAUSED BY ANY FAILURES OF PUBLISHER’S EQUIPMENT, SYSTEMS OR SERVERS, (iii) FOR SCHEDULED MAINTENANCE, OR (iv) FOR ANY EVENTS OF FORCE MAJEURE, AS DESCRIBED IN SECTION 17.

 

9. MODIFICATION.

Yashi may, from time-to-time during the Term, modify, change, enhance, correct or upgrade the Services (including addition of features and functionality thereto and removal of features and functionality therefrom).

 

10. REGISTRATION AND ACCESS METHODS.

(a)       Registration.   Publisher must register as a publisher on Yashi’s website (https://desk.yashi.com/auth/register). Publisher must provide complete and accurate information, including email address, username and password, about Publisher and update such information should it change in the future.

(b)       Access Methods.   Publisher may access the Services through one or more passwords or other access methods specified by Yashi (“Access Methods“). Publisher is responsible for ensuring the security of the Access Methods in connection with Publisher’s use of the Services. Publisher is responsible for (i) ensuring its Access Methods are known to and used by only those users Publisher authorizes; (ii) all acts or omissions of any person using the Services through Publisher’s Access Methods; and (iii) immediately notifying Yashi at support@yashi.com writing if your Access Methods have been lost, stolen or compromised.

11. PRIVACY AND COLLECTION OF INFORMATION.

Publisher’s use of the Services will result in the collection of Non-Personally Identifiable Information (e.g. browser type, operating system, IP address, web history, application data, geo-location data, beacon data, screen resolution, usage and streaming data, demographic information, search information, purchasing behavior, metadata, etc.) from Users of Publisher’s Applications by Yashi and third parties (including Buyers), through cookies, tags, pixels, web beacons, ad-serving platforms, and other technologies. Yashi and third parties use Non-Personally Identifiable Information to identify Ad Inventory and to tailor Ads to Users’ interests and online behavior. By using the Services, Publisher grants Yashi and such third parties the right to collect, use, retain, distribute, and publish Non-Personally Identifiable Information obtained in connection with the Services: (1) for the routing, transmission, reproduction, and display of the Ads, or as otherwise reasonably necessary to provide the Services; (2) as required by law or legal process; or (3) for any other purpose whatsoever provided that such information is anonymized.

 

Publisher hereby agrees to adopt and abide by a privacy policy that: (a) complies with all applicable laws, rules and regulations; (b) clearly and completely discloses to Users all of the User Information collected and the ways in which Publisher uses and shares such information, including the Non-Personally Identifiable Information shared with, collected by, or used by Yashi and/or third parties through the Services; and (c) discloses the use of one or more third parties for ad serving activities. A clear and conspicuous link to Publisher’s privacy policy must be displayed on all pages where information is collected from Users. Publisher agrees to: (i) comply with all applicable privacy and data collection laws, rules and regulations related to the collection, use, and disclosure of User Information; (ii) obtain Users’ prior consent with respect to the collection of any User Information, as required by all applicable laws, rules and regulations; and (iii) provide Users with an option to opt-out or to opt-in to any collection, use and disclosure of their User Information as required by all applicable law, rules and regulations.

 

Publisher agrees to not use the Services to collect Personally Identifiable Information and to not, and to not permit any third party to, associate any data collected by the Services to Personally Identifiable Information. Yashi does not collect or wish to receive any Personally Identifiable Information.

 

12. INTELLECTUAL PROPERTY RIGHTS.

(a)       Yashi Property.   Publisher hereby acknowledges and agrees that, as between Yashi and Publisher, Yashi is the owner of, and this Agreement transfers no proprietary right, title, or interest to Publisher, in or to the Services, Ads and Ad Tags and Yashi Confidential Information and all copyright and other intellectual property rights in each of the foregoing (collectively, the “Yashi Property“). Publisher hereby acknowledges that the Yashi Property constitutes valuable property of Yashi. Publisher shall promptly notify Yashi in writing of any known or suspected claim or action adverse to Yashi’s interests in the Yashi Property that Publisher may become aware of from time to time. In addition, Publisher may, in its sole discretion, provide feedback to Yashi regarding the Services and Yashi may use all such feedback, suggestions and ideas to improve or enhance the Services or for any other purpose without payment of any royalty or other fee to Publisher and without any duty to account to Publisher.

(b)       Marks.   Publisher hereby grants to Yashi a non-exclusive, non-transferable, non-assignable (except as set forth in Section 18) license to, during the term of this Agreement, use Publisher’s name, trademarks, service marks and logos (collectively, the “Marks“) solely in connection with Yashi’s performance of the Services hereunder, including without limitation marketing the availability of Ad Inventory on Publisher Applications. Yashi will use Publisher’s Marks in accordance with any written usage guidelines provided by Publisher to Yashi and all uses of the Marks by Yashi will inure to the sole benefit of Publisher. Yashi hereby acknowledges and agrees that Publisher is the owner of, and this Agreement transfers no proprietary right, title or interest to Yashi in or to the Marks or any copyright, trademark and other intellectual property rights of Publisher.

13. CONFIDENTIALITY AND INFORMATION RIGHTS.

(a)       Confidentiality.   ”Yashi Confidential Information” includes without limitation: (i) all Yashi software, technology, programming, technical specifications, materials, guidelines and documentation Publisher learns, develops or obtains that relate to the Services; (ii) click- through rates or other statistics relating to the Services provided to Publisher by Yashi; (iii) Ad campaign rates; (iv) Revenues; (v) methods for calculating Publisher Earnings; (vi) any information provided by Yashi to Publisher pursuant to Section 5(b); (vii) information related to Users; and (viii) any other business, financial, or technical information or other information that Publisher knows or reasonably should know is confidential to Yashi but does not include information (a) disclosed in public materials or otherwise generally known in the public or in the relevant trade or industry through no fault of Publisher; (b) lawfully obtained by Publisher from a third party without any obligation of confidentiality; (c) lawfully known to the Publisher prior to disclosure by Yashi; or (d) independently developed by Publisher. Publisher will (i) treat all Yashi Confidential Information with the same degree of care as it accords to its own confidential information, but in no event less than a reasonable degree of care; (ii) not disclose Yashi Confidential Information, except (A) to those of its employees and agents who need to know the Yashi Confidential Information and who have agreed previously, either as a condition of employment or in order to obtain the Yashi Confidential Information, to be bound by terms at least as restrictive as set forth in this Section; or (B) as required by law, as long as Publisher affords Yashi a reasonable opportunity to seek protective legal treatment of the Yashi Confidential Information; and (iii) destroy or return to Yashi all Yashi Confidential Information upon termination or expiration of this Agreement.

(b)       Information Rights.   Yashi may retain and use for its own purposes all information Publisher provides, including but not limited to Publisher Application demographics and contact and billing information. Publisher agrees that Yashi may transfer and disclose to third parties personally identifiable information about Publisher for the purpose of approving and enabling Publisher’s participation in the Services, including to third parties that reside in jurisdictions with less restrictive data laws than Publisher’s own jurisdiction. Yashi disclaims all responsibility, and will not be liable to Publisher, however, for any disclosure of that information by any such third party. Yashi may share aggregate (i.e., not personally identifiable) information about Publisher with advertisers, publishers, business partners, sponsors, and other third parties. In addition, Publisher grants Yashi the right to access, index, and cache Publisher’s website, or any portion thereof, including by automated means including Web spiders or crawlers. Additionally, Publisher grants to Yashi a non-exclusive license to republish in any medium advertisements, web pages, banners, advergames, interstitials or other content for purposes of marketing Yashi products and Services.

14. REPRESENTATIONS AND WARRANTIES.

(a)       Publisher Representations and Warranties.   Publisher represents and warrants that Publisher will: (i) provide clear and conspicuous notice to Users of all material functionality of all Publisher Applications; (ii) provide the User with easy-to-use instructions to uninstall all Publisher Applications that are not conventional websites; (iii) clearly and conspicuously display on all Publisher Applications Publisher’s privacy terms, which comply with Section 11hereof; (iv) comply with all Federal, state and local laws and regulations (whether foreign or domestic) applicable to the Publisher Applications; and (v) it will not place any Ads or Ad Tags on Publisher Applications with Prohibited Content.

(b)       Mutual Representations and Warranties.   Each party represents and warrants to the other party that: (i) it has the full legal power and authority to enter into this Agreement and to perform the same in accordance with its terms; (ii) the execution, delivery, and performance of this Agreement will not conflict with, result in a breach or violation of, or constitute a default under any existing agreement or other instrument to which such party may be bound; and (iii) this Agreement represents the binding obligation of such party and is enforceable against such party in accordance with its terms.

15. DISCLAIMER; INDEMNIFICATION; LIMITATION ON LIABILITIES.

(a)       Disclaimer.   THE YASHI PROPERTY PROVIDED HEREUNDER IS PROVIDED STRICTLY ON AN “AS IS” BASIS, AND NO WARRANTIES, EXPRESS OR IMPLIED, REPRESENTATIONS OR PROMISES HAVE BEEN MADE OR ARE GIVEN BY YASHI TO PUBLISHER OR ANY OTHER PERSON REGARDING THE ORIGINALITY, MERCHANTABILITY, TITLE, NON-INFRINGEMENT, SUITABILITY, ACCURACY OR FITNESS FOR A PARTICULAR PURPOSE OF THE YASHI PROPERTY OR ANY PART THEREOF AND NO WARRANTY IS GIVEN THAT THE YASHI PROPERTY WILL CONFORM TO ANY DESCRIPTION THEREOF OR BE FREE OF DEFECTS OR ERRORS. All integration and use of, and problems caused by or resulting from use of, any third party software OR SERVICES in conjunction with the YASHI PROPERTY is the sole and exclusive responsibility of Publisher, and Yashi shall have no responsibility or liability with respect thereto.

(b)       Indemnification by Publisher.   Publisher is solely responsible for any legal liability arising out of or relating to its Applications, any material which Users can link to from an Application and/or any consumer and/or governmental or regulatory complaint arising out of or relating to any promotion or other activities conducted by Publisher. Publisher shall indemnify, defend and hold harmless Yashi, each Buyer and their respective affiliates, successors and assigns, and each of their respective shareholders, directors, employees, representatives, agents and officers (collectively, the “Yashi Parties“), from and against any and all allegations, claims, causes of action, lawsuits, investigations, damages, settlements, liabilities, obligations, costs and expenses (including without limitation reasonable attorneys’ fees and expenses) (collectively, “Losses“), incurred by, imposed on or asserted against any Yashi Party arising out of or relating to (i) any Publisher Application, (ii) Publisher’s breach (or alleged breach) of any of its representations, warranties, covenants or obligations hereunder, (iii) any allegation that any Publisher Application violates or infringes the right of publicity, right of privacy, copyright, trademark, patent or other intellectual property or other rights of any third party, (iv) any allegation of fraud, false advertising, misrepresentation or violation of any Federal, state or local law, statute, ordinance, rule or regulation, anywhere in the world, by Publisher or in connection with any Publisher Application, (v) any contaminated file, virus, worm or Trojan horse originating from any Publisher Application, or (vi) any other act or omission of Publisher that constitutes gross negligence or willful misconduct.

Publisher shall assume the defense of any third party claim; action, suit or proceeding (“Claim“) that may result in Losses at Publisher’s own cost and expense with counsel of its own choice. Publisher shall not agree to any settlement that imposes restrictions on Yashi or requires any action by Yashi without Yashi’s prior written consent. Yashi shall have the right, but not the obligation, to participate at its own expense in the defense and settlement of such Claim. If Publisher fails to timely defend, contest or otherwise protect and defend Yashi against any such Claim, Yashi shall have the right to defend, contest or otherwise protect itself against such Claim and Publisher will reimburse Yashi on demand for Yashi’s Losses, including reasonable attorney’s fees, disbursements and any amounts paid as a result of such Claim.

 

Publisher acknowledges and agrees that Yashi has no special relationship with or fiduciary duty to Publisher. Publisher acknowledges that each Ad is provided by the applicable Buyer and that such Buyer is solely responsible for any Losses or Claims arising out of or relating to its Ads or the content thereof. Publisher specifically acknowledges and agrees that Yashi has no control over (and is merely a passive conduit with respect to) any Ads that may be submitted or published by any Buyer. Pursuant to Yashi’s Advertiser Terms and Conditions, Buyers make certain representations and warranties to, and provide certain indemnifications in favor of, Yashi regarding their Ads. Yashi shall use its commercially reasonable efforts to make Publisher a third party beneficiary of any applicable Buyer representations, warranties and indemnities with respect to Ads that run on Publisher Applications but Yashi shall have no responsibility or liability to Publisher with respect to any Claims or Losses that may arise out of or relate to such Ads or the content thereof. Yashi makes no representations concerning any content contained in or accessed through the Services, and Yashi will not be responsible or liable for the accuracy, copyright compliance, legality or decency of material contained in or accessed through the Services.

 

(c)       Limitation on Liabilities.   IN NO EVENT SHALL YASHI OR ITS AFFILIATES, SUCCESSORS, AND ASSIGNS, AND ITS EMPLOYEES, REPRESENTATIVES, AGENTS, AND OFFICERS BE LIABLE TO PUBLISHER FOR: (i) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS AND LOST OPPORTUNITIES), EVEN IF MADE AWARE OF THE POSSIBILITY OF SUCH DAMAGES; OR (ii) DAMAGES IN EXCESS OF THE AMOUNT EQUAL TO THE TOTAL SUM PAID BY YASHI TO PUBLISHER DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE ON WHICH THE LIABILITY AROSE. NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT BY PUBLISHER AGAINST YASHI MORE THAN ONE (1) YEAR AFTER THE DATE THE CLAIM AROSE.

16. Term and Termination.

(a)       Term.   This Agreement shall remain in effect for as long as Publisher uses the Services. Publisher may terminate this Agreement at any time for its convenience by giving Yashi thirty (30) days’ prior written notice. Yashi reserves the right to terminate this Agreement and its provision of the Services to Publisher by giving Publisher written notice at any time, for any reason or for no reason at all.

(b)       Effects of Termination.   Upon termination of this Agreement, all rights of Publisher hereunder will immediately cease and Publisher’s access to the Services will terminate. Publisher will promptly return to Yashi or destroy, at Yashi’s option, all materials comprising, containing, based on or derived from the Yashi Property. Sections 7, 11, 12, 13, 14, 15, 18, 19 and this Section 16(b) shall survive any termination or expiration of this Agreement.

17. FORCE MAJEURE.

Notwithstanding anything to the contrary herein, neither party shall be liable in contract or otherwise for any losses or damages resulting from causes outside of their reasonable control, including acts of God, fires, floods, storms, hurricanes, earthquakes, riots, natural disasters, explosions, strikes, lock-outs, wars, telecommunications or power outages, interruptions in Internet services to an area where Yashi servers are located or co-located, outages to any public Internet backbones, networks or servers, acts of war or terrorism, and intervention by any governmental authority.

 

18. NOTICE AND MISCELLANEOUS PROVISIONS.

All notices, consents or approvals hereunder will be in writing and will be deemed to have been given and received when (a) delivered personally (against receipt) or by courier; (b) received by certified or registered mail, return receipt requested, postage prepaid; or (c) sent by email or confirmed facsimile transmission; in Yashi’s case, at the address for Yashi set forth in the introductory paragraph of this Agreement and in Publisher’s case, at the email address provided by Publisher upon registration for the Services or at any address provided by Publisher pursuant to Section 8(b), or at such other address as the intended recipient may specify in a notice given pursuant to this Section 18. This Agreement does not create a partnership, joint venture or relationship of trust or agency between the parties. Please review Yashi’s Privacy Policyhttp://Yashi.com/privacy-policy. This Agreement, together with Yashi’s Terms of Use and Privacy Policy, expresses the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous written or oral agreements, communications and understandings, if any, with respect to the subject matter hereof. In the event of a conflict, the terms of this Agreement control. No delay or failure on the part of either party in the exercise of any right granted under this Agreement or available at law or equity shall be construed as a waiver of such right. If any provision (or portion thereof) of this Agreement shall be invalid or unenforceable under any applicable law, such invalidity shall not affect the enforceability of any other provision hereof. In addition, in the event that any provision (or portion thereof) of this Agreement is determined by a court to be unenforceable as drafted, it is the parties’ intention that such provision (or portion thereof) shall be construed in a manner designed to effectuate the purposes of such provision to the maximum extent enforceable under such applicable law. This Agreement shall be governed and construed in accordance with the substantive laws of the State of New Jersey, without regard to conflict of laws rules thereof. Each of the parties irrevocably submits to the exclusive jurisdiction of the state and federal courts of competent jurisdiction located in the State of New Jersey, and waives any objection to venue in any such court. The parties hereby opt out of the Uniform Computer Information Transaction Act to the fullest extent permitted by law. Publisher may not assign any or all of its rights or delegate any or all of its duties or obligations under this Agreement without the express written consent of Yashi. Yashi may assign this Agreement to any subsidiary, affiliate or related entity, or in a sale of all or substantially all of its equity or assets to which this Agreement relates, to a successor in interest in connection with a merger, consolidation, or similar transaction, or pursuant to any transaction in which ownership of more than fifty percent (50%) of its voting securities are transferred, in each case without Publisher’s consent. Any assignment or delegation in violation of this Section 18 will be void and of no force or effect. This Agreement will inure to the benefit of and will be binding upon the parties hereto and their respective heirs, successors, legal representatives and permitted assigns. All remedies in this Agreement are cumulative, in addition to and not in lieu of any other remedies available to a party at law or in equity, subject only to the express limitations on liabilities and remedies set forth herein. Except as expressly provided herein, no third party is intended, or will be deemed, to be a beneficiary of any provision of this Agreement.

 

19. DEFINED TERMS.

(a)        “Ad” means any advertising, promotional and/or sponsorship material, including but not limited to audio and video files, text, graphic files, text links and rich media.

(b)        “Ad Inventory” means any digital advertising units available on the Publisher Applications for the placement of Ads.

(c)        “Ad Tags” means any HTML, JavaScript or other programming code that requests an Ad from an ad server.

(d)        “Buyer” means a third party engaged in purchasing Ad Inventory or placing Ads on Publisher Applications through the Services, including an ad network, ad exchange, demand-side platform, agency trading desk or other media buyer.

(e)        “Inactive” means that, based on Yashi’s records: (i) Publisher has not logged into Publisher’s Yashi account or accepted funds that Yashi has attempted to pay or deliver to Publisher for a period of two (2) years or more; and (ii) Yashi has been unable to contact Publisher at the address for notice provided by Publisher to Yashi or has not received adequate payment instructions from Publisher after notifying Publisher of such defect at Publisher’s address for notice.

(f) “Non-Personally Identifiable Information” means all anonymous information relating to the User, including, without limitation, browser type, operating system, IP address, web history, application data, geo-location data, search information, beacon data, screen resolution, usage and streaming data, demographic information, hobbies/interests, purchasing behavior, and metadata, whether individually or in the aggregate. Such information may be collected by Yashi or third parties (e.g. Buyers).      

(g) “Revenue” means all cash actually collected by Yashi from the sale of Advertising Inventory.

(h)        “Personally Identifiable Information” means any data or other information that can be used to identify, contact or locate a natural person, including, but not limited to, a natural person’s name, address, telephone number, e-mail address or social security number.

(i)        “Publisher Application” means any Publisher applications, websites, mobile websites, mobile applications, and other media: (i) owned and operated by Publisher and (ii) pre-approved by Yashi.

(j)        “Publisher Earnings” means a portion of Revenue paid by Yashi to Publisher.

(k)        “Services” means the services that facilitate the purchase and sale of internet advertisement by bringing together internet advertisers and publishers. Services may include, Yashi Software Development Kit (“SDK”), online access to the Yashi dashboard and related Yashi software and services or content and promotion discovery.

(l)        “User” means any person who accesses or uses a Publisher Application.

(m)        “User Information” means all information submitted by or collected from any User as a result of that User’s access or use of any Publisher Application or action linked to an Ad, including Non-Personally Identifiable Information, Personally Identifiable Information, and all other information about User activity,

FOR ADVERTISERS (YASHI ADVERTISER TERMS AND CONDITIONS):

These Yashi Advertiser Terms and Conditions form a legally binding agreement (“Agreement“) between you (“Advertiser“) and Yashi, Inc., a Delaware corporation with a principal place of business at 1433 Hooper Avenue, Toms River, NJ 08753 (“Yashi“). All capitalized terms used and not defined elsewhere in this Agreement or in Section 19 of the Publishers Agreement (Defined Terms) have the meanings set forth in the Standard Terms (defined below).

 

1. STANDARD TERMS.

This Agreement is subject to the American Association of Advertising Agencies and Internet Advertising Bureau Standard Terms and Conditions for Internet Advertising v. 3.0 (“Standard Terms“), as amended hereby. The Standard Terms are incorporated herein by reference. To the extent that there is any conflict between this Agreement and the Standard Terms, the terms of this Agreement will control. All capitalized terms used and not defined elsewhere in this Agreement have the meanings set forth in the Standard Terms.

 

2. CREATIVE FOR ADS.

“Ad” means any advertising, promotional and/or sponsorship material, including but not limited to audio and video files, text, graphic files, text links and rich media. Advertiser is solely responsible for the content of each Ad. Creative for each Ad must comply with Yashi’s Ad specifications set forth at http://yashi.com/advertiser-ad-specifications.

 

3. AD CONTENT AND PLACEMENT.

(a)       Advertiser understands that Yashi places Ads on properties that are owned, operated and controlled by third parties (“Publisher Applications“) and that Yashi cannot monitor the Publisher Applications for appropriate content and makes no representations or warranties with respect to user generated, video or other content appearing on or accessible through any Publisher Application. If Advertiser reasonably determines that the placement of any Ad by Yashi harms the goodwill or reputation of Advertiser or disparages or brings Advertiser into disrepute, then Yashi shall use commercially reasonable efforts to remove such Ad promptly following receipt of Advertiser’s written notice thereof to Yashi; provided, however, that if Yashi reasonably believes that removal of an Ad will have a material impact on Yashi’s ability to perform in accordance with the applicable IO, Yashi may condition such compliance on Advertiser providing an extension of the flight dates or other accommodation.

(b)       Yashi expressly reserves the right, upon notice to Advertiser, to: (i) refuse any IO, (ii) cancel any campaign that does not conform to in all material respects to the IO, (iii) refuse or cancel any campaign that it deems, in its reasonable discretion, inappropriate or that fails to comply with Yashi’s policies, any applicable self-regulatory policies or guidelines, or applicable law or regulation; (iv) refuse at any time to publish or transmit any copy, photograph or illustration of any kind for any reason; (v) refuse or cancel any campaign which redirects traffic to a website other than the site specifically identified in the IO; or (vi) refuse or cancel any campaign which on its face asks consumers to take advantage of other or additional offers not specifically identified in the IO. All campaigns are subject to capacity limitations which include software, hardware, bandwidth, inventory availability, payment terms, credit history, creative performance, and market pricing limitations. Any campaign rejected by Yashi may be replaced by Advertiser; provided that any such replacement material must be in writing and accompanied by appropriate material identifying the campaign that it is to replace. Yashi shall have no liability to Advertiser for failure to place any campaign on its or any third-party publisher’s network.

(c)       This Agreement is voidable by Yashi immediately if Advertiser misrepresents itself or its Ads in any way. Unless otherwise approved by Yashi in writing, Advertiser may only have one (1) membership account with Yashi.

4. License.

Advertiser hereby grants to Yashi a license, during the term of this Agreement, to place Ads on Publisher Applications in accordance with this Agreement and the applicable IO.

 

5. NO GUARANTEE

EXCEPT AS SET FORTH IN AN IO, YASHI MAKES NO GUARANTEE REGARDING THE NUMBER OF IMPRESSIONS OF ADS OR CLICKS ON ANY AD, OR THE TIMING OF DELIVERY OF SUCH IMPRESSIONS AND/OR CLICKS. IN ADDITION, FOR THE AVOIDANCE OF DOUBT, YASHI DOES NOT GUARANTEE THAT ITS WEBSITE OR SERVICES, OR ANY PUBLISHER APPLICATION, WILL BE OPERABLE AT ALL TIMES OR DURING ANY DOWN TIME (i) CAUSED BY OUTAGES TO ANY PUBLIC INTERNET BACKBONES, NETWORKS OR SERVERS, (ii) CAUSED BY ANY FAILURES OF ANY PUBLISHER APPLICATION’S EQUIPMENT, SYSTEMS OR SERVERS, (iii) FOR SCHEDULED MAINTENANCE, OR (iv) FOR ANY EVENTS OF FORCE MAJEURE, AS DESCRIBED IN THE STANDARD TERMS.

 

6. DISCLAIMER AND INDEMNIFICATION

(a)        Advertiser acknowledges and agrees that Yashi has no special relationship with or fiduciary duty to Advertiser. Advertiser acknowledges that each Publisher Application is owned and controlled by a third party publisher and that such publisher is solely responsible for any losses or claims arising out of or relating to such Publisher Application or the content thereof. Advertiser specifically acknowledges and agrees that Yashi has no control over (and is merely a passive conduit with respect to) any Publisher Applications and the ad inventory available thereon. Pursuant to Yashi’s Publisher Terms and Conditions, publishers make certain representations and warranties to, and provide certain indemnifications in favor of, Yashi regarding their Publisher Applications. Yashi shall use its commercially reasonable efforts to make Advertiser a third party beneficiary of any applicable publisher representations, warranties and indemnities with respect to the Ads that run on such Publisher Applications but Yashi shall have no responsibility or liability to Advertiser with respect to any claims or losses that may arise out of or relate to such Publisher Applications or the content thereof. Yashi makes no representations concerning any content contained in or accessed through any Publisher Application, and Yashi will not be responsible or liable for the accuracy, copyright compliance, legality or decency of material contained in or accessed through any Publisher Application.

(b)        Section X(a) of the Standard Terms (Standard Terms) shall not apply under this Agreement. Advertiser is solely responsible for any legal liability arising out of or relating to its Applications, any material which Users can link to from an Application and/or any consumer and/or governmental or regulatory complaint arising out of or relating to any promotion or other activities conducted by Advertiser. Pursuant to Section X(b) of the Standard Terms, Advertiser shall indemnify, defend and hold harmless each publisher and its respective Affiliates and Representatives to the same extent as Advertiser indemnifies Yashi. Advertiser shall indemnify, defend and hold harmless Yashi, each Seller and their respective affiliates, successors and assigns, and each of their respective shareholders, directors, employees, representatives, agents and officers (collectively, the “Yashi Parties“), from and against any and all allegations, claims, causes of action, lawsuits, investigations, damages, settlements, liabilities, obligations, costs and expenses (including without limitation reasonable attorneys’ fees and expenses) (collectively, “Losses“), incurred by, imposed on or asserted against any Yashi Party arising out of or relating to (i) any Ad, (ii) Advertiser’s breach (or alleged breach) of any of its representations, warranties, covenants or obligations hereunder, (iii) any allegation that any Ad violates or infringes the right of publicity, right of privacy, copyright, trademark, patent or other intellectual property or other rights of any third party, (iv) any allegation of fraud, false advertising, misrepresentation or violation of any Federal, state or local law, statute, ordinance, rule or regulation, anywhere in the world, by Advertiser or in connection with any Ad, (v) any contaminated file, virus, worm or Trojan horse originating from any Ad, or (vi) any other act or omission of Publisher that constitutes gross negligence or willful misconduct.

(c)        Advertiser shall assume the defense of any third party claim; action, suit or proceeding (“Claim“) that may result in Losses at Advertiser’s own cost and expense with counsel of its own choice. Advertiser shall not agree to any settlement that imposes restrictions on Yashi or requires any action by Yashi without Yashi’s prior written consent. Yashi shall have the right, but not the obligation, to participate at its own expense in the defense and settlement of such Claim. If Advertiser fails to timely defend, contest or otherwise protect and defend Yashi against any such Claim, Yashi shall have the right to defend, contest or otherwise protect itself against such Claim and Advertiser will reimburse Yashi on demand for Yashi’s Losses, including reasonable attorney’s fees, disbursements and any amounts paid as a result of such Claim.

7. LIMITATION OF LIABILITY

In addition to the limitations of liability set forth in the Standard Terms, IN NO EVENT SHALL YASHI OR ITS AFFILIATES, SUCCESSORS, AND ASSIGNS, AND ITS EMPLOYEES, REPRESENTATIVES, AGENTS, AND OFFICERS BE LIABLE TO ADVERTISER FOR DAMAGES IN EXCESS OF THE AMOUNT EQUAL TO THE TOTAL SUM PAID BY ADVERTISER TO YASHI DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE ON WHICH THE LIABILITY AROSE. NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT BY ADVERTISER AGAINST YASHI MORE THAN ONE (1) YEAR AFTER THE DATE THE CLAIM AROSE.

 

8. MISCELLANEOUS

This Agreement does not create a partnership, joint venture or relationship of trust or agency between the parties. Please review Yashi’s Privacy Policy http://yashi.com/privacy-policy. This Agreement, together with the Terms of Use, the Standard Terms (as amended hereby), and Privacy Policy, expresses the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous written or oral agreements, communications and understandings, if any, with respect to the subject matter hereof. In the event of a conflict, the terms of this Agreement control. No delay or failure on the part of either party in the exercise of any right granted under this Agreement or available at law or equity shall be construed as a waiver of such right. If any provision (or portion thereof) of this Agreement shall be invalid or unenforceable under any applicable law, such invalidity shall not affect the enforceability of any other provision hereof. In addition, in the event that any provision (or portion thereof) of this Agreement is determined by a court to be unenforceable as drafted, it is the parties’ intention that such provision (or portion thereof) shall be construed in a manner designed to effectuate the purposes of such provision to the maximum extent enforceable under such applicable law. For purposes of Section XIV(d) of the Standard Terms, this Agreement shall be governed and construed in accordance with the substantive laws of the State of New Jersey, without regard to conflict of laws rules thereof. Each of the parties irrevocably submits to the exclusive jurisdiction of the state and federal courts of competent jurisdiction located in the State of New Jersey, and waives any objection to venue in any such court. The parties hereby opt out of the Uniform Computer Information Transaction Act to the fullest extent permitted by law. Yashi may assign this Agreement to any subsidiary, affiliate or related entity, or in a sale of all or substantially all of its equity or assets to which this Agreement relates, to a successor in interest in connection with a merger, consolidation, or similar transaction, or pursuant to any transaction in which ownership of more than fifty percent (50%) of its voting securities are transferred, in each case without Advertiser’s consent. All remedies in this Agreement are cumulative, in addition to and not in lieu of any other remedies available to a party at law or in equity, subject only to the express limitations on liabilities and remedies set forth herein. Except as expressly provided herein, no third party is intended, or will be deemed, to be a beneficiary of any provision of this Agreement.