Advertiser Terms and Conditions
Last Modified November 2016
Advertise.com, Inc., a California corporation (“Advertise.com” or “we”), allows registered advertisers (“Advertiser”, “You” and “Your”) to upload their offerings onto the Advertise.com platform (“Advertising Platform”). Clicks will be generated by Advertise.com and/or its affiliates in response to a query corresponding to the keywords chosen by the Advertiser for a keyword campaign or remnant contextual inventory depending on the campaign type selected by Advertiser. Advertisers pay per click sent by Advertise.com and/or its affiliates and will pay no more than the maximum bid set by the Advertiser within the Advertise.com platform. Offerings on Advertise.com are ranked and determined according to the highest bidders. Signing up for Advertise.com’s Advertising Platform does not guarantee that any or all of the offerings or keywords submitted will be accepted by Advertise.com or that such keywords will generate any traffic to Advertiser’s site. Advertise.com reserves the right to reject and/or remove any offerings or keywords submitted by Advertisers as well as the right to reject any advertiser for any reason or no reason. Advertiser acknowledges and agrees Advertise.com has no obligation to disclose any information regarding its rejection and/or removal of any offerings, keywords, or advertisers, and Advertise.com has sole discretion over what information it chooses to disclose to Advertiser, if any. If an advertiser is not allowed on the platform prior to running any campaigns, any funds added will be voided.
Advertise.com will provide the Advertiser with access to the Advertise.com pay-per-click contextual platform subject to the Advertiser’s compliance with the terms and conditions contained in these terms and conditions (the “Agreement”). Please read this Agreement carefully prior to signing up for an Advertise.com advertising account. This Agreement is subject to change by Advertise.com at any time. This Agreement governs Your access to and use of Advertise.com’s website and any services provided thereunder or in connection therewith as an Advertiser, and constitutes a binding legal Agreement between You and Advertise.com. Certain areas of the Advertise.com website (and Your access to or use of certain areas or portions of the website or related services) may have different terms and conditions posted or may require You to agree with and accept additional terms and conditions. If there is a conflict between this Agreement and terms and conditions posted for a specific area of the website or related services, the latter terms and conditions will take precedence with respect to Your use of or access to that area of the site or related service, as applicable. YOU ACKNOWLEDGE AND AGREE THAT, BY CLICKING ON THE “I AGREE” OR “I ACCEPT” BUTTON, OR ACCESSING OR USING THE ADVERTISE.COM WEBSITE OR RELATED SERVICES OR BY DOWNLOADING OR POSTING ANY CONTENT FROM OR ON THE WEBSITE OR THROUGH THE SERVICES, YOU ARE INDICATING THAT YOU HAVE READ, AND THAT YOU UNDERSTAND AND AGREE TO BE BOUND BY, THESE TERMS, WHETHER OR NOT YOU HAVE REGISTERED ON OR THROUGH THE WEBSITE. IF YOU DO NOT AGREE TO THIS AGREEMENT, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE ADVERTISE.COM WEBSITE OR RELATED SERVICES. If You accept or agree to this Agreement on behalf of a company or other legal entity, You represent and warrant that You have the authority to bind that company or other legal entity to this Agreement and, in such event, “You” and “Your” will refer and apply to that company or other legal entity. Advertise.com reserves the right, at its sole discretion, to modify this Agreement, at any time and without prior notice. If we modify this Agreement we will post the modification on Advertise.com website or provide You with notice of the modification. By continuing to access or use the Advertise.com website or related services after we have posted a modification on the website or have provided You with notice of a modification, You are indicating that You agree to be bound by the modified Agreement. If the modified Agreement is not acceptable to You, Your only recourse is to cease using the website and any related services pursuant to the terms of the Agreement.
Advertise.com, for purposes of this Agreement, is the process provider for web users (each a “Web User”) interested in a desired subject, and Advertisers who bid for related keywords or categories. When these related keywords or categories generally produce a result that contains Advertiser’s contextual ads that match users interests, the Web User may be redirected to the Advertiser’s website. In connection with Your use of Advertise.com’s website and related services and to enable Advertise.com to serve Your advertisements via Advertise.com’s website, third-party publisher websites, email and/or applications, You grant Advertise.com an unlimited, non-exclusive, fully-transferable, worldwide, royalty-free, fully-paid right and license to use, reproduce, modify, create derivative works from, distribute, perform, transmit, and display Your advertisements in any format, layout or size. Advertise.com disclaims all liability relating to Your advertisements and related content. As between Advertise.com and You, You are solely responsible for Your advertisements, any services or products offered through Your advertisements and any websites that are linked to from Your advertisements. Third-party publishers may include but are not limited to search, domain, email, contextual, and display web content. Advertise.com does not represent or warrant the quality of traffic delivered to Advertiser nor if any contextual ad or how much of a contextual ad will be displayed across the network. Additionally, the format of Your advertisement may vary and Advertise.com makes no representations as to the format of Your advertisement. For example purposes, and without limitation to other examples that may apply, when a Web User clicks on a travel link from a participating publisher’s website that may be displaying the Advertiser’s travel related ad or a generic travel ad, the Web User may or may not be redirected to the travel keyword Advertiser’s website. Advertiser is aware that they have opted in to emails that may be sent from the Advertise.com Team.
Advertise.com requires payment in advance for all Advertiser accounts. Advertisers must initially fund their accounts with at least $500 in United States currency in order to activate their accounts. Only accounts with positive balances of at least as much as the Advertiser’s lowest keyword bid shall remain active in our database. All accounts that fall below this funding requirement shall be placed on hold, and all contextual ads shall be removed, until the account is funded. Advertiser agrees to pay all applicable charges to the account with respect to the payment method selected in accordance with billing terms in effect at the time the fee becomes payable. Advertiser understands and agrees that their account will be charged for all clicks/views of Advertiser’s contextual ads. Display advertisement pricing will be based on a CPM as stated in the relevant purchase order. Advertise.com is not responsible for the maintenance of Advertiser’s website. Payments to Advertise.com must be made by credit card (Visa or Mastercard), wire transfer, Paypal, or net terms (upon approval). Advertiser agrees, warrants and represents that all information provided for the purpose of enrolling as an Advertiser will be accurate, complete and current. Advertiser’s right to access an account with Advertise.com is subject to any limits established by Advertise.com, its contractors or by Advertiser’s credit/charge. If payment cannot be charged to Advertiser’s credit facility for any reason, or if there is a charge back for any reason, Advertise.com reserves the right, in its sole discretion, with or without notice, to either suspend or terminate Advertiser’s account with Advertise.com. Advertise.com’s final billing to Advertiser shall be conclusively presumed by Advertiser to be accurate and proper. Advertiser waives all rights to challenge or seek to charge-back any billings. Nothing stated herein shall limit rights granted to a cardholder by Visa, MasterCard and/or its issuing bank.
Advertiser agrees to pay all charges to its account in accordance with Advertise.com’s terms. Advertiser acknowledges that the payment obligation hereunder is based solely on the number of clicks/views and not on Advertiser’s ability to convert clicks/views to sales or any other criteria. Advertiser warrants and represents that all payment information provided to Advertise.com will be accurate and complete, and current. In the event that Advertise.com is unable to charge Advertiser’s credit card, Advertise.com may, in its sole discretion with or without notice, suspend or terminate the Advertiser’s participation in the Advertising Platform. NOTICE OF LOST OR STOLEN CARD/FRAUDULENT USE OF CARD Advertisers must promptly inform Advertise.com of any and all of the following: loss or theft of the credit card used in relation to this program; changes in the expiration date of the credit card; changes in home or billing address; apparent breaches of security with the account, such as loss, theft, unauthorized disclosure or use of an ID or password; and any and all other changes pertaining to the credit card account which may affect the ability of Advertise.com to expeditiously obtain payments due to Advertise.com or its billing agent. You agree that if You ever have overdue payment, Advertise.com may engage in collection efforts to recover such amounts from You. These collection efforts may involve contacting You directly, submitting Your information to a collections agency, or legal action. SHOULD YOU FAIL TO PAY, ADVERTISE.COM MAY UNILATERALLY DECIDE TO IMPOSE REASONABLE FEES ON YOUR ACCOUNT, INCLUDING BUT NOT LIMITED TO, THE COST OF COLLECTIONS OR OTHER LEGAL ACTIONS AND PUNITIVE FEES IN EXCESS OF OUR INCURRED COSTS.
All payments will be made based on clicks/views and revenue generated as determined by Advertise.com’s tracking.
Advertiser may suspend or cancel participation in the Advertise.com Advertising Platform by providing forty-eight (48) hours written notice to Advertise.com. Following such notice, Advertiser will be entitled to receive a refund for all amounts not yet charged to account. Advertise.com may cancel Advertiser’s participation in the Advertising Platform at any time for any or no reason. Advertise.com reserves the right, at its sole discretion, to modify, discontinue or terminate the website or any related services (including without limitation, the Advertising Platform), at any time and without prior notice. Advertisers will forfeit any deposited funds if they are terminated due to a breach in the rules of advertising on the platform outlined in the Advertiser’s Rights and Responsibilities section. All unused credits or promotional credits will expire after 6 months. Credits or promotional credits will be applied toward traffic after the initial deposit is used and are nonrefundable. It is agreed between the parties that Advertise.com shall have the right to delete keywords and/or campaigns that have not received traffic within a reasonable amount time. Advertise.com reserves the right to delete accounts that have been inactive for an extended period of time.
OWNERSHIP OF INTELLECTUAL PROPERTY
Advertise.com retains all right, title and interest in and to its trademarks, service marks, trade names, service names, logos and copyrights, as well as its content and technology worldwide (“Intellectual Property”). By entering into this Agreement, Advertiser acknowledges that such Intellectual Property is the exclusive property of Advertise.com and that all usage of such Intellectual Property and any goodwill established by the use of such Intellectual Property shall inure to the benefit of Advertise.com and that this Agreement does not confer any goodwill or other interests in such Intellectual Property to Advertiser. Advertiser shall not adopt or attempt to register any Intellectual Property that is confusingly similar to Advertise.com’s Intellectual Property. Advertiser agrees to allow Advertise.com a limited right to use Advertiser’s logo and name on Advertise.com website and marketing materials.
Advertiser agrees to indemnify and hold Advertise.com and its officers, directors, agents, affiliates, licensors and employees harmless from and against any and all claims, actions, liabilities, losses, expenses, damages, and costs (including without limitation reasonable attorneys’ fees) arising out of or relating to (i) Advertiser’s use of and participation with the Advertise.com website and related services, including the Advertising Platform, (ii) Advertiser’s advertisements, websites or any related content, including any links from Advertiser’s websites (iii) any claim of libel, defamation, violation of right of privacy or publicity, copyright infringement, trademark infringement or other infringement of any third party right, fraud, false advertising, misrepresentation, product liability or violation of any law, statute, ordinance, rule, or regulation throughout the world in connection with Advertiser’s advertisements, websites or any related content, including any links from Advertiser’s websites (iv) any breach by Advertiser of any duty, representation, warranty under any Agreement with Advertise.com, or (v) any claim relating to a contaminated file, virus, worm, Trojan horse, or other device that could impair or injure any person or entity emanating from Advertiser’s advertisements, websites or any related content. Advertisers are solely responsible for defending any claim, and for payment of damages or losses resulting from the foregoing to both a third party and to Advertise.com.
RIGHT TO REJECT
All requested URL links, search terms and descriptions are subject to Advertise.com’s approval. Advertise.com reserves the right to reject, cancel or remove any URL link, search terms and descriptions at any time for any reason whatsoever.
Advertisers may only submit search terms and descriptions to Advertise.com’s Advertising Platform that are relevant to Advertiser’s submitted websites or to those web pages contained in Advertiser’s websites. If any information provided on Advertiser’s websites is changed, search terms and descriptions must be updated to be both current and accurate. All search terms and descriptions submitted are subject to relevancy review by Advertise.com, and are subject to removal or rejection at any time and for any reason.
Advertise.com does not guarantee that any Advertiser’s ad information will be available or displayed. Advertise.com reserves the right to not place Advertiser’s ad information in the Advertise.com Advertising Platform. The format of Advertiser’s contextual ads may vary and Advertise.com makes no representations as to the format of contextual ads. Traffic delivered to advertisers originates from a variety of sources, including but not limited to, native ads, in-screen, domain parking, pop-unders, tab-overs, in-text hover, and more. Native ad traffic includes, but is not limited to, on-page units, pre-exit, and email native ads. Advertiser may opt out of Native email ad traffic by Advertiser’s account representative at Advertise.com in writing (email sufficing), at any time. Any native ads, or accompanying images, not in compliance with the Native Guidelines provided by Advertise.com, may be edited by Advertise.com at any time. Our native ad traffic is solely click based, however, with other Advertise.com products, a user will view your ad information and then click on the ad for it to be billable. In other cases, the user may not see your ad information and users are automatically routed to the advertiser’s landing page (for example via InterYield). Our Contextual platform offers tens of thousands of unique traffic sources. Advertisers have the ability to block and whitelist sources based on each advertiser’s individual performance goals.
ACCOUNT ACCESS AND RESPONSIBILITIES
After Advertiser’s registration with Advertise.com, Advertiser will be granted access to an advertiser account (“Advertiser Account”), which shall only be used by Advertiser and for Advertiser’s sole and personal use. Advertisers shall be solely responsible for their account manager’s conduct regarding maintenance of Advertiser’s account and ensuring all information provided is true and correct. Advertiser may log in to the Advertiser Account at any time to update campaigns, settings, or account information. If account user information changes throughout the lifetime of an account, it is Advertiser’s responsibility to obtain login credentials and update the account contact information as needed. Any changes made to a live campaign are subject to approval by Advertise.com in its sole discretion and will only take effect after such approval by Advertise.com. Other than the mutually agreed upon account manager, Advertiser may not authorize others to use Advertiser’s Advertise.com account, and may not assign or otherwise transfer the account to any other person or entity. Advertisers shall not, under any circumstances, have the right to transfer or assign the account, any personal identification numbers or password to any other person or party who has not been preapproved and authorized for access by Advertise.com. Any such attempted transfer or assignment shall be void and shall constitute a material breach of this Agreement on Advertiser’s part. In addition, Advertisers must promptly inform Advertise.com of any apparent breach of security, such as loss, theft, or unauthorized disclosure or use of Advertiser’s account, personal identification number or password.
ADVERTISER’S RIGHTS AND RESPONSIBILITIES
Advertiser may submit material for contextual ad advertisements by logging into his/her account from our homepage. Advertise.com reserves the right to reject or remove any contextual ad advertisement at its sole discretion. Advertiser represents and warrants that: (i) You are the owner or are licensed to use the advertisements and all subject matter contained therein; (ii) Your advertisements are and will be free of any worm, virus, or other device that could impair or injure any person or entity; (iii) You are generally familiar with the laws and regulations governing the Internet and You will comply with all applicable laws and regulations including those that may apply to the display of the advertisements on third-party publisher websites and/or applications and Your advertisements will not violate any law or regulation, including, but not limited to, laws governing privacy, false or deceptive advertising, sweepstakes, comparative advertising, or trade disparagement; (iv) Your advertisements do not and will not (a) contain any misrepresentations or content that is defamatory, (b) violate any rights of privacy or publicity, (c) contain content that is violent, obscene, or offensive, including content that contains nudity or implied nudity or content that is morally or ethically offensive or sexually suggestive, or (d) promote or support gambling, unless authorized in an Advertise.com insertion order that incorporates this Agreement by reference, sweepstakes, or contests; (v) Your advertisements do not and will not infringe any intellectual property or proprietary right of any third party; (vii)Your advertisements will comply with Advertise.com’s advertising guidelines below; and (viii) You will not nor will You authorize third parties to (a) generate fraudulent, automated, or otherwise invalid information, data, or actions related to Your advertisements; (b) use robots, other automated query tools, computer-generated search requests and/or any other similar results-optimization methods unless authorized by Advertise.com; or (c) advertise anything illegal or engage in any illegal or fraudulent business practice in any state or country where Your advertisements are displayed or served.
ADVERTISING AND CREATIVE GUIDELINES
Advertiser shall abide by each of the following guidelines with respect to its Ads. If Advertiser breaches any of the guidelines below as determined by Advertise.com in its sole discretion, Advertise.com may suspend and/or terminate your account without notice to You. Contact the Legal Department if you have any questions.
All ads must include the name of the program that brought the ad.
An ad that includes audio must have an “off” button.
These include offers for work-at-home, vending machines, display racks, pay phones, “get rich quick,” day trading and medicabilling opportunities. The ad will be canceled upon the first consumer complaint. In addition, the ad must not:
- promise good pay in a short period of time with little effort.
- Make high earnings claims.
- Tout an atypical result without informing consumers that the result is not typical.
Children Under 18 – Ads Targeting
The ad must not:
- Promote an adult product, service or behavior or be otherwise inappropriate for children.
- Seek to take advantage of children’s inexperience or naiveté.
- If the ad or its landing page collect personal information from children under 13, advertiser must certify that it is COPPA-compliant.
Credit Offers The ad must not:
- Offer extremely low rates or payments.
- Promise that it can get consumers the lowest rates available.
- Offer loans for free, at no cost or without fees.
- Promise success in obtaining a loan for a consumer, in exchange for an advance fee.
For ads promoting mortgages and refinances, the ad must clearly disclose the items below, if the ad includes:
- the amount of any down payment;
- the length of the loan and the amount of each payment; and
- the annual percentage rate.
The ad must not:
- Mislead, deceive, or confuse users, including misleading users into visiting another site or downloading files.
- Be distinguishable from website content (i.e. the ad must not make it difficult for users to tell whether it is looking at website content or ad content).
- Contain malicious or exploit code.
- Change/replace the links of the site/in the site.
- Where applicable, in-text link shall be clear and obvious to users.
These include vitamins, minerals, amino acids, enzymes, herbs, and animal extracts. The ad must not promote: ephedra (ma huang), chaparral, comfrey, lobelia, germanda, L-tryptophan, willow bark, germanium, dieter’s teas or magnolia-stephania preparations. The ad must not claim that the product:
- Can cure or treat a disease, including (but not limited to) cancer, AIDS, AD/HD, Alzheimer’s, tumors, insomnia, arthritis or impotency.
- Can cure a wide range of ailments.
- Is a natural or safe alternative to prescription drugs.
The advertiser must certify that it complies with the CAN SPAM Act.
The ad must clearly disclose:
- Any required purchase.
- Any other important conditions on receiving the “free” item. If these non-purchase conditions appear by link or on the landing page, the ad must clearly state “conditions apply.”
Free Trial Offers
The ad must clearly disclose or link to:
- The length of the free trial period.
- How to cancel, and by when, to avoid any charge.
- If, after the trial, the consumer will receive periodic product shipments:
- The total cost of each shipment;
- The frequency of shipments;
- Any minimum purchase requirement; and
- Any other important conditions of the offer.
The ad must:
- Include an obvious way to close the ad (the closing button must not trigger another ad)
- Ensure that any action taken by a consumer with respect to the ad (e.g., clicking on a certain spot) must not surprise him/her. An ad with a close button, minimize/maximize button or similar function that does not, in fact, operate to perform those functions, is prohibited.
- Not force the landing page to pop over the publisher website.
- Not invoke a file download (no direct download/auto download)
- Mouse over links cannot take users away from the page (i.e. mouse hover must not function as a click).
Gambling is prohibited, unless authorized in advance by Advertise.com in writing.
Gray Box Ads
(For example, ads that look like “Caution” or “Warning” notices.) The ad must:
- Clearly and conspicuously disclose, inside the creative, that it is an ad.
- Ensure that any action taken by a consumer with respect to the ad (e.g., clicking on a certain spot) must not surprise him/her.
Ads for products that assist a person in breaking the law are prohibited. This would include, for example, an ad for a product that could help someone pass a drug test.
Ads for any group that is involved in hate speech or acts are prohibited.
Health or Safety Claims The ad must not:
- Make claims touching on health or safety that are too good to be true.
- Make claims that could reasonably involve a risk to health or safety. The ad must:
- Include information about any significant risks associated with the product.
Entry JS pops on an Advertiser’s landing page are prohibited. JS pops upon exiting a landing page are allowed.
The promotion, sale, import, export, and distribution of medical products, including drugs, medical devices, and biologics, is strictly regulated by federal and state laws and regulations. If You are an Advertiser of such products, by participating in the Advertising Platform, You represent that You fully comply with all federal and state laws and regulations governing such products including, but not limited to, the U.S. Federal Food, Drug, and Cosmetic Act. Pornography
Ads for pornography are prohibited.
- Ads containing nudity, obscenity, or dirty language are prohibited.
- Ads containing provocative content must be assigned a warning so that our member publishers may decide whether or not it is appropriate for their sites.
Ads for “spyware” (adware) are prohibited. We define “spyware” as software that merely displays advertising. Ads for a product that is downloaded onto the user’s machine are acceptable only if:
- The download begins only after the user clicks through to the advertiser’s website (i.e., no automatic downloads);
- The user is required to affirmatively agree to the download in order for it to begin; and
- Prior to agreeing to the download, the user is clearly told: (1) exactly what product(s) will be installed; and (2) exactly how the downloaded product(s) will function, including what personal information, if any, it/they will collect and/or use.
Ads with landing page warnings, alerting, or suggesting than an end user has any kind of computer virus or threats are prohibited.
Sweepstakes & Contests
The ad must not:
- State or imply that a person has already won, without disclosing all conditions on receipt of the prize.
- Require a purchase to enter a sweepstakes (a game of chance).
The ad must:
- State how to enter and by when.
- Direct consumers to the official rules.
- State that no purchase is necessary (for a sweepstakes).
Telecommunications Products and Services
The ad must clearly disclose or link to:
- Activation or initiation fees;
- Any recurring charges;
- Any required contract term;
- Any early termination fees;
- The number of peak and off-peak minutes and the hours they apply;
- Charges for excess minutes;
- Whether charges apply for calls that are out of network or out of a certain geographic area;
- Whether the offer is for only a limited period and, if so, the fees for the remainder of the contract; and
- Any additional fees, taxes or surcharges and the amount of these kept by the carrier.
The testimonial must not:
- Make a claim that is too good to be true.
The testimonial must:
- Be made by an actual user of the product and reflect his/her honest opinions.
- Make a claim that is true for every consumer, unless there’s an adequate disclosure.
Trademarks or Logos – Use of a Third Party’s
The ad must not use them in a way that could:
- Negatively reflect on the third party or its brand.
- Lead to consumer confusion between the third party and the Advertiser.
- Imply sponsorship, endorsement or affiliation between the Advertiser and the third party.
An ad that includes video must include a functioning “stop” button.
Health or Safety Claims
The ad must not:
- Make claims touching on health or safety that are too good to be true.
- Make claims that could reasonably involve a risk to health or safety.
Weight Loss Products or Plans
The ad must not state or imply that:
- The product or plan will lead to substantial weight loss for all users.
- The product or plan will lead to permanent weight loss.
- Users can eat as much as they want or whatever they want and lose weight.
- The product leads to substantial weight loss without the need for diet or exercise.
- Users can lose fat from specific body parts.
- The product blocks or absorbs fat or calories.
- The product causes the user to lose weight when applied to the body or skin (e.g., a cream or patch).
- Users can lose more than three pounds per week for more than four weeks.
- Tout an atypical result without informing consumers that the result is not typical.
Advertise.com, in its sole discretion, may not approve an Advertiser’s contextual ad. No reason is required to be given to the Advertiser why their advertisement has or has not been approved. All decisions made by Advertise.com in this matter will be final.
LIMITATION OF LIABILITY AND WARRANTY DISCLAIMER
THE ADVERTISER EXPRESSLY AGREES THAT THE USE OF ADVERTISE.COM AND ITS RELATED SERVICES IS AT THE ADVERTISER’S OWN RISK. ADVERTISE.COM AND ITS RELATED SERVICES IS AVAILABLE ON AN “AS IS” BASIS, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. NEITHER ADVERTISE.COM NOR ANY OF ITS LICENSORS, EMPLOYEES, AGENTS, CONSULTANTS OR CONTRACTORS, MAKES ANY WARRANTY OR REPRESENTATION WHATSOEVER REGARDING ADVERTISE.COM, ANY INFORMATION, SERVICES, OR PRODUCTS PROVIDED OR AVAILABLE THROUGH OR IN CONNECTION WITH ADVERTISE.COM, OR ANY RESULTS OBTAINED THROUGH THE USE THEREOF. ADVERTISE.COM HEREBY DISCLAIMS, ON BEHALF OF ITSELF AND ALL INFORMATION PROVIDERS, LICENSORS, AND/OR LICENSEES ANY AND ALL WARRANTIES INCLUDING, WITHOUT LIMITATION: ANY WARRANTIES AS TO THE AVAILABILITY, ACCURACY, OR CONTENT OF ADVERTISE.COM AND/OR INFORMATION, PRODUCTS, OR SERVICES AVAILABLE THROUGH ADVERTISE.COM; AND ANY WARRANTIES OF TITLE OR WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO THE ADVERTISER. THIS LIMITED WARRANTY GIVES THE ADVERTISER SPECIFIC LEGAL RIGHTS, AND THE ADVERTISER MAY ALSO HAVE OTHER RIGHTS, WHICH MAY VARY FROM STATE TO STATE. THE TOTAL LIABILTY OF ADVERTISE.COM, ITS INFORMATION PROVIDERS, LICENSORS, LICENSEES, EMPLOYEES, AGENTS, CONSULTANTS OR CONTRACTORS, INCLUDING, WITHOUT LIMITATION, ANY LIABILITY FOR DAMAGES CAUSED OR ALLEGEDLY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, FAILURE OF DELIVERY OF MERCHANDISE OR INFORMATION, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR UNLAWFUL USE OF ADVERTISE.COM’S RECORDS, WHETHER FOR BREACH OF CONTRACT, TORTUOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION, SHALL BE STRICTLY LIMITED TO THE AMOUNT PAID OR OWED TO ADVERTISER BY ADVERTISE.COM IN THE THREE (3) MONTHS PRIOR TO THE DATE THE CAUSE OF ACTION AROSE. IN NO EVENT WILL ADVERTISE.COM, ITS INFORMATION PROVIDERS, LICENSORS, LICENSEES, EMPLOYEES, AGENTS, CONSULTANTS OR CONTRACTORS, BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE USE OR INABILITY TO USE ADVERTISE.COM AND/OR THE SITES LINKED TO ADVERTISE.COM, OR FOR ANY BREACH OF WARRANTY. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO THE ADVERTISER. THE ADVERTISER AGREES THAT ADVERTISE.COM WILL NOT BE HELD RESPONSIBLE FOR THE SELECTION OR RETENTION OF, OR ANY ACTS, ERRORS, OR OMISSIONS BY, ANY THIRD PARTY IN CONNECTION WITH ADVERTISE.COM AND/OR SITES LINKED TO ADVERTISE.COM, INCLUDING, WITHOUT LIMITATION, THOSE WITH WHOM ADVERTISE.COM CONTRACTS TO OPERATE VARIOUS PORTIONS OF ADVERTISE.COM AND THOSE TO WHOM ADVERTISE.COM PROVIDES LINKS TO FOR CONTENT, ADVERTISING OR ANY OTHER TYPE OF DATA OR INFORMATION.
CANCELLATION OR TERMINATION
If Advertiser is dissatisfied with Advertise.com or the terms and conditions herein, Advertiser’s sole and exclusive remedy is to terminate the account. Accounts may be cancelled at any time by sending an email to email@example.com. Advertise.com may, in its sole discretion, terminate Advertiser’s account, and discontinue the advertising account, or use of any search at any time, and for any reason, with or without notice. Advertise.com can also terminate advertising accounts if Advertise.com believes Advertiser’s conduct is harmful to other consumers and Advertisers who participate in Advertise.com. All decisions made by Advertise.com in this matter will be final.
ARBITRATION FOR FEE DISPUTE
Any dispute over sums owed pursuant to this Agreement shall be resolved by arbitration before a single arbitrator. Arbitration shall be conducted in accordance with California Code of Civil Procedure section 1280 et. seq. All arbitration-related hearings shall be conducted in Los Angeles, CA. The arbitrator shall be from the Southern California area and the arbitrator will be selected by the mutual agreement of the parties and/or their respective counsel. If the parties cannot agree on a single arbitrator, then each party shall propose three (3) potential arbitrators to the Superior Court of California in Los Angeles – Northwest District (Van Nuys, Ca.) as part of a Petition to the Court that shall be filed jointly by the parties for the purpose of resolving the sole issue of arbitrator selection. The Superior Court will select the single arbitrator from the potential arbitrators proposed by the parties. Once selected, the Arbitrator shall be empowered to hear and resolve any and all issues related to the dispute. The Arbitrator shall issue rulings, decisions, orders, judgments and permanent injunctions as applicable and appropriate. In arbitration over sums owed, Attorney’s fees and costs as well of the costs of the arbitrator shall be awarded to the prevailing party.
CHOICE OF LAW
This Agreement will be governed by and construed in accordance with the laws of the State of California, notwithstanding the actual state or country of residence or incorporation of the parties. The parties consent to the exclusive jurisdiction of the state or federal courts in Los Angeles County for all actions arising out of or related to this Agreement. The parties hereby agree to waive their right to a jury trial such that any dispute arising out of this Agreement that is not over sums owed (which is subject to arbitration) shall be heard by a judge. In a dispute litigated in court, Attorney’s fees and all costs shall be awarded to the prevailing party.
ASSIGNMENT; CHANGE OF CONTROL
Advertiser shall not assign any of its rights or obligations under this Agreement, in whole or in part, without Advertise.com’s written consent. Advertise.com may at any time assign, in whole or in part, its rights or obligations under this Agreement without the consent of and without prior notification to Advertiser.
Advertise.com reserves the right, at its sole discretion, to modify this Agreement, at any time and without prior notice. If Advertise.com modifies this Agreement we will post the modification on our website. By continuing to access or use the Advertising Platform after we have posted a modification or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Agreement. If the modified Agreement is not acceptable to you, your only recourse is to cease using the Advertising Platform, and any related services pursuant to the terms of this Agreement.
Any notice or other communication to be given hereunder will be in writing and will be (as elected by the party giving such notice): (i) personally delivered; or (ii) sent by prepaid overnight delivery services such as FedEx or USPS Express Mail, with delivery confirmation and/or return receipt; a courtesy copy shall also be send by email or facsimile. Unless otherwise provided herein, all notices will be deemed to have been duly given on the date of receipt (or if delivery is refused, the date of such refusal) if delivered personally. Either party may change its address for purposes hereof on not less than three (3) business days prior notice to the other party.
Any delay in or failure of performance by either party under this Agreement will not be considered a breach of this Agreement and will be excused to the extent caused by any occurrence beyond the reasonable control of such party including, but not limited to, acts of God, power outages and governmental restrictions.
SEVERABILITY AND WAIVER
In the event that any of the provisions of this Agreement are held by to be unenforceable by a court or arbitrator, the remaining portions of the Agreement will remain in full force and effect. Failure of either Party to require strict performance by the other party of any provision shall not affect the Party’s right to require strict performance thereafter. Waiver by either Party of a breach of any provision shall not waive either the provision itself or any subsequent breach.
This Agreement is the complete and exclusive agreement between the parties with respect to the subject matter hereof, superseding and terminating all previous communications, representations or Agreements, whether written or oral between the parties relating to the services provided hereunder.
This Agreement may be executed in two or more counterparts, each of which shall be an original or copy and all of which together shall constitute one instrument.
The parties are independent contractors and not co-venturers. Neither party shall be deemed to be an employee, agent, or legal representative of the other party hereto for any purpose and neither party hereto shall have any right, power or authority to create any obligation or responsibility on behalf of the other party hereto nor shall this be deemed an exclusive or fiduciary relationship. This Agreement will not be construed to create or imply any partnership, agency or joint venture.