NativeAI - Publisher Analytics & Monetization Platform

Terms of Service

News360, Inc. (“News360”) and the publisher (“Publisher”) hereby agree to the terms and conditions set forth in these Terms of Service (“Terms”). These Terms confirm and clarify respective rights and obligations between News360 and Publisher in connection with Publisher’s access to and use of the NativeAI Services (“Services”). By clicking on the “Accept” button below or signing a subscription agreement Publisher indicates that Publisher has read, understood and agreed to all of the terms and conditions in these Terms.

1. NativeAI Services

NativeAI Services include observing and analyzing behavior of users of Publisher’s website and/or mobile application, and creating personalized interest graphs for each user, as well as providing analytics reports on the interests and behavior of Publisher’s audience.

2. How News360 Interacts with Publisher’s Website and/or Mobile Application

News360 provides to Publisher javascript code, and/or mobile development frameworks (“Code”), which Publisher places on its website and/or mobile application according to technical documentation and requirements provided by News360 (“Documentation”). When a user then visits the Publisher’s website and/or mobile application, this Code sends information about the user’s reading patterns to News360’s servers as the user navigates Publisher’s website and/or mobile application, including, but not limited to, the headlines that the user sees and clicks on, how long the user spends on each story page, what percentage of the page is visible to the user, as well as data on the user’s browser version, operating system, screen size and other information.

The Publisher agrees that to identify different instances of usage of the Publisher’s website and/or mobile application as being performed by the same user, the Code may use cookies, pixel tags, web beacons, and/or mobile advertiser IDs (collectively “Cookies”) to assign a unique identifier to each user. This unique identifier is then used to track reading behavior and analyze the user’s interests. Publisher understands and agrees that Publisher is solely responsible for procuring any legally required consent from the user to place Cookies on the user’s web browser or device.

News360 also provides access to the online NativeAI Dashboard with a set of login credentials specific to the Publisher, which allows Publisher to view analytics reports. Publisher is responsible for maintaining control over the login credentials and access to the Dashboard. News360 is not responsible for any adverse effects caused by any actions performed in the Dashboard using Publisher’s credentials.

News360 has no obligation under these Terms for any claim, which results from modification of the Services or Code by anyone other than News360, or installation or use of Code by Publisher not as directed in the Documentation.

3. Publisher's Responsibilities

3.1. No Modification of Code Provided by News360

Publisher cannot modify, change, edit, alter, bypass or reorder any aspect of the Code provided by News360, except as directed in the Documentation. Publisher agrees that any Code given to Publisher by News360 to use on a certain website and/or mobile application should only be used on that website and/or mobile application. Publisher shall not intercept, copy, cache or store any information transferred or collected by the Code.

3.2. No Promotion of Profanity, Inappropriate Material or Illegal Activity

Publisher’s website and/or mobile application may not include, facilitate or promote excessive profanity, inappropriate language or material; obscene, defamatory, discriminatory, deceptive, libelous, pornographic, violent, indecent, offensive, contrary to public policy, or otherwise unlawful or infringing under any applicable laws content; any type of illegal activity; content lacking in necessary authorizations, approvals, consents or licenses.

Publisher’s website and/or mobile application using the Code should not contain malware, pop-ups, redirect users to unwanted websites, modify browser settings, or otherwise interfere with website and/or mobile application navigation.

3.3. Publisher is Solely Responsible For

  • Maintaining its website and/or mobile application, including any servers, equipment and software needed to use the Services. News360 makes no guarantees and assumes no responsibility for any technical faults or outages in the Services related to technical issues in Publisher’s software or hardware;
  • Ensuring that its software and hardware systems are compatible with and meet the requirements of the Services as specified in the Documentation. News360 will take reasonable efforts to provide Publisher with prior notice of a change or modification in the Services that may affect compatibility;
  • Ensuring the security of its data and passwords, including those provided by News360 and/or used by the Services;
  • All changes and modifications to the Services made by Publisher, including those made through the Dashboard;
  • Ensuring that personally identifiable information of users of Publisher’s website and/or mobile application are not captured by the Services, whether through URLs visited by users, content of the articles displayed to users, passed directly through the Code, or any other means, except with express consent of the user.
  • Any loss or liability resulting from any unauthorized third-party access to Publisher’s website, mobile application, equipment or data, unless caused by News360 acts or omissions.

4. News360’s Rights

Publisher Grants News360 the Following Rights:

  • To access content on Publisher’s website and/or mobile applications for indexing, analysis and other purposes related to Publisher’s use of the Services.
  • To collect, store, aggregate and analyze data about users of Publisher’s website and/or mobile application for the purposes of providing the Services, deriving insights about users’ interests, conducting research, performing aggregate analysis, customizing and targeting advertising content, sharing aggregated and anonymized data with advertisers and other third parties, as well as for internal reporting and marketing purposes.
  • To use Publisher’s name and logo when referring to News360’s customers in marketing materials.
  • To make updates, modifications or improvements to the Services, including the Code, the Dashboard, and any other components provided by News360 under its sole discretion. Publisher will use commercially reasonable efforts to implement any such update within thirty (30) days of receipt of request from News360.

5. Licenses and Data Use

5.1. For News360 to Use Publisher Content and Data

All user information stored on Publisher’s website and/or mobile application shall remain the sole property of Publisher.

Publisher hereby grants to News360 a worldwide, royalty-free, non-exclusive, irrevocable license to store, aggregate, analyze and otherwise use for the purposes of providing the Services, deriving insights about users’ interests, conducting research, performing aggregate analysis, customizing and targeting advertising content, as well as for internal reporting and marketing purposes any data collected by News360 from Publisher’s users and/or transmitted by Publisher to News360 in connection with its use of the Services.

5.2. For Publisher to Use the Services

News360 shall own and retain all right, title, and interest in and to the Services (except for any licensed content and software components included therein). Publisher agrees not to copy, alter, modify, or create derivative works of the Services or otherwise use the Services in any way that violates these Terms.

News360 may aggregate the data resulting from Publisher’s use of the Services. News360 retains all rights, title and interest in and to all data aggregated and/or generated by News360 through Publisher’s use of the Services, including aggregated data about Publisher’s website and/or mobile application users’ behavior and interests, any reports, aggregated analysis or other aggregated data made available to Publisher through the Dashboard. Publisher acknowledges and agrees that it does not acquire any ownership rights to such aggregated data provided to Publisher through the Dashboard. Publisher acknowledges and agrees that News360 has the right to share anonymized aggregated data with advertisers and other third parties.

Subject to Publisher’s compliance with these Terms, News360 grants Publisher a limited, non-exclusive, non-transferable, non-sublicensable, non-assignable, revocable license to access and use the Services for their intended purposes only. Publisher agrees that it may not use the Services for any other purpose, or copy or distribute the Code except as specifically allowed in these Terms.

Subject to Publisher’s compliance with these Terms, News360 grants Publisher a limited, non-exclusive, non-transferable, non-sublicensable, non-assignable, irrevocable license to use any data accessed through the Dashboard during Publisher’s use of Services.

News360 reserves the right to add, modify, remove or amend all or any portion of the Services in any way at any time in its sole discretion, without notice. News360 reserves the right to terminate Publisher’s license to use the Services at any time and for any reason without liability incurred.

Other than as expressly granted above, no other rights are granted to Publisher, including without limitation any and all News360’s patents, copyrights, trade secrets, trademarks, service marks, publicity rights, and other proprietary rights.

6. Use of Subcontractors and Third-Party Services

News360 may perform any of its obligations hereunder through one or more agents, subcontractors or third-party service providers, provided that News360 remains responsible to Publisher for the performance of the Services.

7. Subscription and Fees

News360 offers free and paid NativeAI subscription plans. A paid subscription may be procured via a subscription agreement entered into between Publisher and News360.

For Publishers that purchase paid subscription plans, fees and payment schedules are specified in the subscription agreements. Payment obligations are non-cancelable and, except as expressly stated the subscription agreement, fees paid are non-refundable.

8. Independent Contractor Relationship

News360’s relationship with Publisher shall be that of an independent contractor and nothing in these Terms shall be construed to create a partnership, joint venture, agency or employer-employee relationship between the parties. Neither party is the agent of the other, and neither party shall have any authority to make any agreement, representation, or commitment on behalf of the other party, or otherwise bind the other party in any respect.

9. Confidential Information

Any information marked “Confidential” or disclosed or provided under circumstances that would lead a reasonable person to conclude that the information was confidential provided by one party to another shall be deemed Confidential Information of the disclosing party. The following information is not considered Confidential Information under these Terms: (i) information that was lawfully in the possession of the receiving party at the time of the disclosure, or subsequently becomes known to the receiving party from a third party free of any obligation of confidentiality with respect to the information disclosed; (ii) information that is known to the public or is no longer confidential through no fault of the receiving party; and (iii) information that is independently developed by employees or agents of receiving party without reference to the other party’s Confidential Information.

Confidential Information shall be kept in the strictest confidence and shall be protected by all reasonable and necessary security measures. Confidential Information shall not be released by the receiving party to anyone except an employee or agent who has a need to know same, and who is bound by confidentiality obligations, or used for any purpose, except in connection with its rights and obligations under these Terms, unless permitted in writing by the other party. Notwithstanding the foregoing, either party may disclose Confidential Information strictly necessary to comply with the demands of any court order, law or governmental agency, or as necessary to establish the rights of either party under these Terms, provided, however, that the party required to make the disclosure shall give the other party reasonable notice of the requirement.

10. Ownership of Intellectual Property

News360 is the sole and exclusive owner of all rights, titles and interest, including, but not limited to, copyright, trademark and other intellectual property rights, contained in, arising from, or related to the Services or technology developed by News360, or result from or are suggested by any work performed by News360 for Publisher.

Any additional technology, products and services created by News360 on the basis of analysis of aggregated Publisher data or through any user data collected by the Code will be the property of News360.

11. Publicity and Trademarks

Publisher hereby permits News360 to identify Publisher as a client, to use Publisher's name and its trademarks, service marks, logos, symbols and/or brand names in connection with proposals to prospective clients, to display Publisher's marks on News360 and NativeAI websites and to hyperlink from News360 and NativeAI websites to Publisher's website, and to otherwise refer to Publisher in print or electronic form for marketing or reference purposes.

News360 and Publisher shall each have the right to issue a press release announcing their relationship.

12. Privacy

News360 collects, stores and handles data about users of Publisher's website and/or mobile application and other information in accordance with the NativeAI Privacy Policy, hereby incorporated into these Terms.

Publisher represents and warrants to News360 that it has obtained or established, or shall have obtained or established prior to any processing of personal data under these Terms, consent or other lawful basis reasonably required to process, and to authorize News360 to process on Publisher’s behalf, personal data of Publisher’s Users as contemplated by these Terms.

Publisher is responsible for complying with all applicable privacy and data protection laws and regulations applicable to Publisher’s use of the Services.

13. Warranties

Each party represents and warrants to the other that: (i) it has all right, power, and authority necessary to enter into these Terms and perform its obligations under it; and (ii) the execution of these Terms and the performance of its respective obligations and duties thereunder do not and will not violate any agreement to which such party is a party or by which it is otherwise bound.

Publisher represents and warrants that the Publisher’s website and/or mobile application content are either owned by Publisher or properly licensed, and neither such Publisher’s material nor News360’s use of same will infringe upon the rights of any third party, and that such material does not violate any applicable laws, rules and regulations and will not contain any material which may be harmful, abusive, obscene, threatening or defamatory.

News360 Representations and Warranties: EXCEPT AS MAY BE EXPRESSLY SET FORTH IN THESE TERMS, NEWS360 MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE SERVICES RENDERED. NEWS360 PROVIDES THE SERVICES “AS IS.” NEWS360 EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, OR ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE, OR THAT THE SERVICES WILL OPERATE UNINTERRUPTED, SECURE OR ERROR FREE (EXCEPT TO THE EXTENT PROHIBITED UNDER APPLICABLE LAWS).

14. Limitation of Liability

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (A) NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, PROFITS, USE, DATA OR COST OF COVER, OR OTHER ECONOMIC ADVANTAGE, IN CONNECTION WITH THESE TERMS OR THE SERVICES, HOWEVER IT ARISES, WHETHER FOR BREACH OR IN TORT; AND (B) NEWS360’S AGGREGATE LIABILITY HEREUNDER SHALL NOT EXCEED $10,000; AND (C) NEITHER PARTY MAY INSTITUTE A LEGAL PROCEEDING ALLEGING A CAUSE OF ACTION WHICH ACCRUED MORE THAN ONE (1) YEAR PRIOR TO THE COMMENCEMENT OF SUCH PROCEEDING.

15. Indemnity

Each party shall defend, indemnify and hold harmless the other party and its respective agents, subsidiaries, directors, officers, employees, contractors against any and all third party claims, losses, liabilities, damages, settlements, expenses and costs which arise out of or relate to any material breach of such party's obligations under these Terms. In connection with any such claim: (i) the indemnified party shall provide prompt written notice to the indemnifying party of any such claim (the failure to provide such prompt notice shall not relieve the indemnifying party of its indemnification obligations herein, except to the extent it has been damaged thereby), and provide to the indemnifying party all available information and assistance; (ii) the indemnifying party shall have sole control of the defense or settlement of the claim; (iii) at the indemnifying party's request and expense, the indemnified party shall cooperate in the investigation and defense of such claim.

16. Term and Termination

These Terms are effective from the day Publisher clicks on the “Accept” button or signs a subscription agreement, and shall continue until Publisher cancels the Services or News360 terminates the Services.

Publisher may cancel the Services at any time for any reason with prior written notice to News360. Upon cancelling the Services, Publisher shall remove the Code and all News360’s scripts and materials from its website and/or mobile application.

News360 may terminate the Services at any time for any reason with prior written notice to Publisher, in which case Publisher shall immediately cease all use of the Services, and remove the Code and all News360’s scripts and materials from its website and/or mobile application; and all revocable licenses, and any other rights and services provided by News360 to Publisher, shall cease immediately.

Upon termination of these Terms for any reason, Publisher will have no further access to the Dashboard.

17. Modification

These Terms may be modified by News360 in its sole discretion at any time with subsequent notice to Publisher within ten (10) days of modification. By continuing to use the Services, Publisher agrees to the updated Terms. Upon receipt of notification, the Publisher shall take all the necessary steps to comply with the changes within thirty (30) days.

18. Survival

All provisions of these Terms that by their nature would reasonably be expected to survive will survive termination or expiration of these Terms, including, but not limited to, ownership, warranties, limitation of liability, licenses and data use, subscription and fees, confidential information, indemnification, governing law provisions, as well as miscellaneous and this section. Any provisions regarding any licenses that by their terms survive termination, will survive the expiration or termination of these Terms for any reason.

19. Force Majeure

Neither party will be responsible for any delay in or failure of performance under these Terms due to causes beyond the reasonable control of the party, including, but not limited to, labor disputes, strikes, lockouts, war, terrorism, riot, or acts of God, embargoes, governmental restrictions, shortages of or inability to obtain energy, or other harm. The party whose performance is affected by such events shall promptly notify the other party giving details of the force majeure circumstances. The obligations of the party giving such notice shall be suspended during, but not longer than the continuance of the force majeure, and the time for performance of the affected obligation hereunder shall be extended by the time of the delay caused by force majeure. In the event of force majeure, each party has the duty to mitigate its damages.

20. Export Laws

The parties acknowledge that certain equipment, software and technical data which may be provided hereunder may be subject to export controls under the U.S. Export Administration Regulations and/or other export laws, restrictions and regulations of the United States or any other country. No party shall export any such equipment, software, technical data or any direct product thereof in violation of any such laws. Publisher is responsible for complying with all such laws and regulations, including but not limited to export, import and customs laws and regulations. News360 shall provide reasonable assistance to Publisher and its affiliates to facilitate such compliance.

21. Severability

If any provision of these Terms shall be held to be invalid, illegal or unenforceable by any court of competent jurisdiction, then: (i) the validity, legality and enforceability of such provision as applied to any other particular facts or circumstances, and the other provisions of these Terms, shall not in any way be affected or impaired thereby; and (ii) such provision shall be enforced to the maximum extent possible so as to effect the intent of the parties. If any provision of these Terms shall for any reason be held to be excessively broad as to duration, geographical scope, activity or subject, it shall be construed by limiting and reducing it, so as to be enforceable to the extent necessary to comply with applicable law.

22. Waiver

No failure of either party to enforce any of its rights under these Terms will act as a waiver of such rights. The waiver by either party of a breach or default under any provision of these Terms shall not be effective unless in writing and shall not be construed as a waiver of any subsequent breach or default.

23. Assignment

Neither party may assign these Terms, in whole or in part, by operation of law or otherwise, without the prior written consent of the other; provided, however that either party may assign its rights or delegate its duties under these Terms, in whole or in part, without the other's consent, in connection with a merger, reorganization or sale of all, or substantially all, of the assignor's assets, provided that the successor entity shall have sufficient resources and shall assume the obligation to fully perform these Terms.

24. Governing Law

These Terms shall be governed by and construed in accordance with the laws of the State of California without regard to any choice of law rule. Each party, to the extent permitted by applicable law, hereby irrevocably and unconditionally (i) submits to the general jurisdiction of the state and federal courts located in San Mateo County, California; (ii) agrees that any action or proceeding concerning these Terms or the Services will be brought exclusively in such courts.

25. Miscellaneous

These Terms, together with any applicable supplementary agreement or subscription agreement signed by both parties (if any), constitute the entire agreement between News360 and Publisher with respect to the subject matter hereof.

All notices under these Terms will be in writing and will be delivered by personal service, confirmed fax, certified mail, or email. Notices to Publisher shall be sent to the email specified in Publisher’s Dashboard account. Notices to News360 shall be sent to publishers@news360.com. Notices will be effective on receipt.

Publisher understands and agrees that News360 retains the right to suspend or cancel the Services for any or no reason and at its sole discretion at any time.

News360 has the right to change, modify, add to or discontinue any aspect or feature of the Services at any time without any obligation to give Publisher notice of any changes. From time to time, News360 may, but is under no obligation to, release upgrades, fixes or new versions of the Services.

News360 reserves the right to monitor Publisher for compliance with these Terms.

Contact us if you have questions or comments regarding these Terms: publishers@news360.com.

May 21, 2018