Publisher Terms and Conditions
Before you can become a participant in the publisher program (the “Program”) provided by Advertise.com, Inc. (“Advertise.com” or “we”), you must first read and unconditionally agree to all of the following terms and conditions (the “Agreement”). Please read the following carefully. This document is a legal agreement between Advertise.com and you (“you”, “your”, or the “Publisher”). Your participation in the Program is subject to all the terms, conditions, limitations and waivers below. Publisher acknowledges and agrees that by participating in the Program, the Publisher will be unconditionally bound by all the terms and conditions in this Agreement.
This Agreement governs your access to and use of Advertise.com’s website and any services provided thereunder or in connection therewith as a Publisher, 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, PARTICIPATE IN THE PROGRAM, 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, “Publisher”, “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 Program, 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 Program, the website and any related services pursuant to the terms of the Agreement.
Participation In The Program
The parties wish to provide for a license to Publisher to display Advertise.com’s Paid Listings in connection with the Publisher Network and Publisher Product (as defined below), with Paid Listings sent by Advertise.com in response to search queries, ad requests based on site pages, and other ad calls, or requests for listings made by Publisher or Publisher’s users to Advertise.com.
NOW, therefore, for good and adequate consideration, the receipt of which is acknowledged, the parties agree as follows:
1.1 A “Click” occurs when a bona fide Internet user (which excludes a robot, spider, software, scraper or other mechanical, artificial or fraudulent means, or a person who is not seeking to use the Publisher Network and/or Publisher Product for a legitimate web search, e.g., has been paid or otherwise motivated to click, as determined by Advertise.com’s click filtering and tracking systems) clicks on a Listing and accesses the destination site.
1.2 “Listing” means a link to a website that includes the display URL, a title, text that describes the site to which the listing links or encourages the user to visit the site, and may include a tracking URL.
1.3 “Publisher Network” means web sites which are owned or operated by Publisher or are contractually part of Publisher’s syndication network.
1.4 “Publisher Product” means programs and/or applications which are owned or operated by Publisher.
1.5 “Paid Listings” means an Advertise.com product (including, but not limited to Advertise.com’s AdDock, InText, InterYield, XML Feed, and Banner Advertisement publisher programs) that returns results containing Listings paid for pursuant to Advertise.com’s relationships with its advertisers. The amount that an advertiser pays to Advertise.com influences (among other factors) the position in which the advertiser’s Listing appears in our Paid Listings.
1.6 “Email Campaign” means the campaigns approved by Advertise.com, which allows Publisher to advertise products and services on behalf of Advertisers by sending emails to users who have opted in to receive such emails, provided the emails are CAN-SPAM compliant and the emails are fully in accordance with the terms and conditions in the Advertise.com Email Publisher Terms & Conditions (“Email Agreement”), which are provided below.
2.1 License. Subject to the terms, limitations and conditions herein, Advertise.com hereby grants to Publisher a non-exclusive license during the Term to publicly display Paid Listings via its Publisher Product and/or Publisher Network, and to allow third parties who operate sites on the Publisher Network to publicly display, Paid Listings in electronic form on the Publisher Network. Publisher and third parties who operate sites with the Publisher Network may not display any Paid Listings via any of the following distribution sources; e-mail, pop-ups, pop-unders or adware without Advertise.com’s prior written, signed consent.
2.2 Limitations on License. It is understood and agreed between the parties that the Publisher’s business model involves serving ads to users of the Publisher Network and Publisher Product, and as such the Publisher has the right to display Advertise.com’s Paid Listings via the Publisher Network and Publisher Product as long as the users and/or members of the Publisher Network and Publisher Product have signed terms and conditions substantially similar to the ones being agreed to herein and that specifically provide indemnification to Advertise.com’s Publisher that are equal to or stronger in indemnification protection as the language contained in Section 10.2 herein. The license granted above is conditioned upon Publisher’s, and sites in the Publisher Network, observance of the following restrictions: (i) except as expressly permitted herein, Publisher will not display, use, reproduce, cache, store, distribute, make derivative works of, modify, sell, resell, rent, license, sublicense, transfer, assign or redistribute in any way Paid Listings; (ii) Publisher will not modify, add to, edit or delete the URLs, titles or reviews contained within any Paid Listings without Advertise.com’s prior written approval; (iii) Publisher will not display, sublicense or syndicate Paid Listings on or to any third party or web site unless it first obtains Advertise.com’s written consent; (iv) Publisher will use the tracking URLs associated with each individual Listing provided by Advertise.com, if any, for all Paid Listings included on its Publisher Network and Publisher Product (though Publisher may use the display URLs for purposes of displaying the Listing); (v) Publisher will not display any Paid Listings on any adult-oriented web sites without the prior written approval of Advertise.com; (vi) Publisher will not display any Paid Listings on any obscene or illegal web sites, or in any manner that violates any applicable laws or regulations or the rights of any third party; and (vii) Publisher will not display any Paid Listings, or allow any third parties to display any Paid Listings, via any form of adware, spyware, e-mail or method that violates applicable laws. Advertise.com reserves the right, in its sole discretion, to modify, discontinue or terminate the Program at any time.
2.3 Zero Tolerance Policy.
YOUR LICENSE WITH ADVERTISE.COM IS FURTHER CONTINGENT UPON ADHERENCE WITH
ADVERTISE.COM’S ZERO TOLERANCE POLICY REGARDING THE SUBJECT MATTER LISTED HEREIN BELOW, AND ADVERTISE.COM RESERVES THE RIGHT TO TERMINATE YOUR ACCOUNT IMMEDIATELY IF THE PUBLISHER NETWORK AND/OR PUBLISHER PRODUCT CONTAINS THE FOLLOWING:
* INDECENT OR PORNOGRAPHIC MATERIAL.
* SOFTWARE PIRATING OR ANY SITE THAT VIOLATES THIRD PARTY INTELLECTUAL PROPERTY RIGHTS (i.e. Warez).
* MP3 SITES THAT DO NOT HAVE THE LEGAL RIGHT TO DISTRIBUTE MP3 FILES.
* HACKING /PHREAKING OR ANY OTHER SITE INVADING THE RIGHTS OF COMPUTER USERS.
* ANY MATERIAL WHICH IS THREATENING, ABUSIVE, HATEFUL, DEFAMATORY, LIBELOUS, SLANDEROUS, OR INJURIOUS TO THE REPUTATION OF ANY INDIVIDUAL OR ENTITY.
* INCENTIVE BASED WEBSITES.
* SPAMMING – THE PRACTICE OF SENDING UNSOLICITED EMAIL.
* ANY ILLEGAL ACTIVITY.
* ANY ACTIVITY WHICH ADVERTISE.COM DETERMINES IS UNFIT FOR ITS ADVERTISERS, WITHIN ADVERTISE.COM’S SOLE DISCRETION.
2.5 Query Source Identification. For every ad call or other request for listings to Advertise.com, Publisher shall clearly identify to Advertise.com the query source by providing the originating IP address of the user (not the server making the request), the user agent of the user’s browser, and the HTTP referrer that indicates where the listings are being displayed.
2.6 Display of Ads on Publisher Network. The license granted above is conditioned on Publisher’s, and sites in the Publisher Network’s, observance of the following: if Publisher allows any third party to display Paid Listings, Publisher shall: (1) enter into a legally binding contract with such third party that is no less restrictive than the terms, conditions, limitations and restrictions applicable to Publisher under this Agreement, (2) monitor the activities of such third party on a regular basis to ensure compliance with the requirements herein, and (3) immediately terminate such third party’s distribution of Paid Listings upon a determination that such third party is in material violation of any of the terms and conditions of such distribution agreement or upon request by Advertise.com to do so. This agreement includes non-exclusive access to the Publisher’s 404 error technology which redirects the user 404 error to Publisher’s targeted results pages.
3. EMAIL CAMPAIGNS
Any Publisher that participates in Email Campaign’s with Advertise.com shall comply at all times with the Advertise.com Email Publisher Terms & Conditions (“Email Agreement”), which are provided below and are hereby incorporated into this Agreement. With respect to Email Campaigns, the Terms and Conditions in the Email Agreement shall supersede this Agreement and all other agreements.
4. PAYMENT TERMS.
4.1 Cost Per Click. Subject to the terms and conditions hereof, for any given calendar month, Advertise.com will pay Publisher a net bid amount for every valid Click. Such bid amount will be recorded by Advertise.com’s click tracking system. Advertise.com maintains the right, in its sole discretion, to adjust the net bid value paid to Publisher for credit card fraud, advertising complaints, non-qualified clicks, poor traffic quality, similar items, and any form of conduct which is illegal or prohibited under this Agreement. Advertise.com will determine the costs-per-click (“CPC”) bid and include it in the Paid Listings feed sent in response to such request. Advertise.com will have sole discretion to decide the CPC bid for each Listing, and such CPC bid may change frequently. Publisher may use the CPC bid included in the Paid Listings feed from Advertise.com solely for the purpose of ranking the Paid Listings and gauging payments from Advertise.com, but the parties agree that all CPC bid amounts submitted by Advertise.com are confidential information for internal use only, and shall not be posted on Publisher’s web pages or disclosed to any third parties. Advertise.com shall have no obligation to pay for clicks if Publisher makes any material misrepresentations or if Publisher violates this Agreement.
4.2 Reporting and Payment. Advertise.com will make its preliminary reporting of clicks (“Publisher Admin”) available to Publisher, and Publisher acknowledges and agrees that (i) such reporting may not represent the number of qualified Clicks for which Advertise.com will pay Publisher and (ii) it will control access to and maintain the confidentiality of its password for accessing the Publisher Admin. Within forty-five (45) days after the end of each calendar month during the Term, Advertise.com will deliver payment pursuant to Section 3.1; provided, that Publisher acknowledges and agrees to the Query Source Identification as described in section 2.6, above. For any request without Query Source Identification, Publisher acknowledges and agrees that Advertise.com’s ability to determine which clicks and ads are qualified or billable is impaired and thus Advertise.com may not pay Publisher for such clicks and ads. Advertise.com reserves the right to deduct from payments made pursuant to Section 3.1, or otherwise recoup any amounts paid to Publisher in prior months for non-qualified Clicks.
4.3 Audit. Publisher agrees that, given written notice of fifteen (15) business days, at the expense of Advertise.com, Advertise.com and/or parties duly authorized by Advertise.com shall have the right to audit the records of Publisher to confirm compliance with the terms of this Agreement. Any such audit shall be conducted during normal business hours and shall not unduly interfere with Publisher’s ability to conduct business. Publisher agrees that, in the event that Advertise.com demonstrates that discrepancies equal to or greater than, five percent (5%) exist, Publisher shall pay to Advertise.com all costs associated with such audits.
4.4 Non-Qualified Clicks. Advertise.com shall have no obligation to pay for clicks which are non-qualified clicks as determined by its proprietary click filtering and tracking systems. Non-qualified clicks may come as a result of but are not limited to clicks (i) generated via automated crawlers, robots or click generating scripts, (ii) that an advertiser receives and rejects, (iii) that come as a result of auto-spawning of browsers, automated redirects, and clicks that are required for users to navigate on the Publisher Network and Publisher Product, (iv) that are from users in countries other than those explicitly agreed to by Publisher and Advertise.com, (v) that are on expired, cached or over-budget ads, or (vi) that come as a result of any incentive such as cash, credits or loyalty points. Advertise.com reserves the right to require Publisher to provide server log files that include, but are not limited to, the daily number of clicks delivered to Advertise.com. In the event that Advertise.com determines in its sole discretion that Publisher or any third party site in the Publisher Network and/or Publisher Product has delivered non-qualified clicks, or traffic that violates any material term of this Agreement, Advertise.com may, at its option, (1) immediately terminate this Agreement upon written notice to Publisher, or (2) require Publisher to immediately cease displaying, and allowing third party sites in the Publisher Network and/or Publisher Product to display, Paid Listings via any particular means, method, product, or third party distributor, and/or (3) not pay Publisher for the offending clicks.
4.5 Account Manager. Advertise.com will provide a designated account manager to Publisher.
5. ADDITIONAL PUBLISHER OBLIGATIONS.
5.1 Implementation of Paid Listings. Within ten (10) days after the Effective Date (defined below), Publisher will begin querying Advertise.com’s servers for Paid Listings and will implement and display Paid Listings provided by Advertise.com as set forth on Exhibit A.
5.2 Attribution; Look and Feel. Publisher may provide Advertise.com attribution on pages displaying Paid Listings. The size and location aspects of such attribution shall be at the parties’ mutual agreement. Other than as set forth herein, Publisher shall control the look and feel of its search service.
6. SERVICE LEVELS/TECHNICAL SUPPORT.
Advertise.com will use commercially reasonable efforts to provide the Service Levels and Technical Support as specified in Exhibit B.
Advertise.com may issue a press release to announce the relationship contemplated by this Agreement with the
prior written consent of Publisher. Publisher will not make any public statement, press release or other announcement relating to the terms or existence of this Agreement without the prior written approval of Advertise.com, such approval not to be unreasonably withheld, conditioned or delayed, provided that either party may make such disclosures as may be, in its reasonable opinion of counsel, advisable in order to comply with a subpoena or other legal process or with applicable laws, regulations or securities exchange rules. Publisher agrees to allow Advertise.com the right to use Publisher’s brand on Advertise.com’s website and in its marketing materials.
8. INTELLECTUAL PROPERTY OWNERSHIP.
8.1 Proprietary Rights of Advertise.com. Advertise.com will retain all right, title and interest in and to the Paid Listings, the related databases, all data generated by Advertise.com, including without limitation, date generates by its click tracking system and other performance measurement applications, and all associated intellectual property and proprietary rights worldwide (including, but not limited to, ownership of all copyrights, trademarks, patents, derivative works, modifications, lists of advertisers and information, algorithms, taxonomies, trade secrets and other intellectual property rights therein).
8.2 Proprietary Rights of Publisher. Other than the Paid Listings, Publisher will retain all right, title, and interest in and to the Publisher Network and Publisher Product (including, but not limited to, ownership of all Publisher’s copyrights, trademarks, patents, derivative works, modifications, lists of advertisers, algorithms, taxonomies, trade secrets and other intellectual property rights therein).
9. NON CIRCUMVENTION.
9.1 Except as specifically provided herein, Publisher shall not, and shall not permit any operators of the Publisher Network and Publisher Product to alter, reverse engineer, decompile, disassemble, sell, rent, lease, sublicense, transfer, or otherwise make available any part of the software that forms part of the Paid Listings or any other materials provided by Advertise.com in connection with this Agreement. Publisher shall not use the Paid Listings, any services of the Paid Listings, or any technology learned from the relationship covered in this Agreement to build (i) a service that competes with the Paid Listings; (ii) assist any other person or company to compete with the Paid Listings; or (iii) in any other way compete with the Paid Listings. Publisher recognizes that a breach of any of the terms listed in this section could result in immediate, extraordinary and irreparable damage to Advertise.com and its relationships with its advertising clients, and that damages may be difficult to measure. As such, damages may not be sufficient and Advertise.com will be entitled to seek equitable relief without prejudice and in addition to any other rights or remedies Adveritse.com may have.
10. TERM AND TERMINATION.
10.1 Term. The term of this Agreement (the “Term”) will begin upon Publisher’s initial consent to the Agreement (the “Effective Date”) and will then automatically renew for successive one year periods, unless either party gives written notice to the other party of its intention not to renew at least 60 days prior to the end of the then-current term or renewal term.
10.2 Termination. Publisher may terminate this Agreement at any time for any reason with thirty (30) days prior written notice. Advertise.com may suspend performance and/or terminate this Agreement at any time for any reason with or without cause upon ten (10) business days’ prior written notice.
10.3 Effect of Termination. Termination of this Agreement by either party will not act as a waiver of any breach of this Agreement and will not act as a release of either party hereto from any accrued liability (including payments as set forth in the following section) or liability for breach of such party’s obligations under this Agreement. Within forty-five (45) days following the expiration or termination of this Agreement, each party will pay to the other party all sums, if any, due and owing as of the date of expiration or termination, net of any amounts due from the other party as of such date. Upon the expiration or termination of this Agreement for whatever reason, each party shall immediately cease to use the other party’s trademarks, proprietary information, Paid Listings, intellectual property (including derivative works or modifications thereof) and Confidential Information (defined below) in any manner whatsoever, and shall destroy or return (at the option of the other party), any such property, or materials representing the same to the other party, and provide the other party with an officer’s certificate attesting to such return/destruction. For the avoidance of doubt, upon termination or expiration of this Agreement, the license granted hereunder shall terminate and Publisher and its agents shall immediately cease all use of the Paid Listings.
10.4 Survival. The provisions of sections 1 and 6-14 (inclusive) will survive any termination or expiration of this Agreement.
11.1 “Confidential Information” means information about the disclosing party’s (or its suppliers’) business, products, technologies, strategies, advertisers, financial information, operations or activities that is proprietary and confidential, including without limitation all business, financial, technical and other information disclosed by the disclosing party. Confidential Information of Advertise.com includes (without limitation) the CPC bids included in its Paid Listings feeds. Confidential Information will not include information that the receiving party can establish (i) is in or enters the public domain without breach of this Agreement, (ii) the receiving party lawfully receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation or (iii) the receiving party knew prior to receiving such information from the disclosing party.
11.2 Use of Confidential Information. Each party agrees (i) that it will not use or disclose to any third party or use any Confidential Information disclosed to it by the other except as expressly permitted in this Agreement or as required by a court of law or otherwise compelled to be disclosed pursuant to the legal process or existing laws or regulations, and (ii) that it will take all reasonable measures to maintain the confidentiality of all Confidential Information of the other party in its possession or control, which will in no event be less than the measures it uses to maintain the confidentiality of its own information of similar importance.
12. REPRESENTATION, WARRANTY, AND INDEMNITY.
12.1 Advertise.com’s Representations. Advertise.com represents it owns, or has obtained the right to distribute and make available as specified in this Agreement, the Paid Listings provided to Publisher in connection with this Agreement. Except as specifically provided herein, Advertise.com does not guarantee or make any representations or warranties whatsoever (i) with respect to the completeness of any listings or links or information accessed through such links or (ii) with respect to the content of the web sites accessed through the listings or links provided hereunder. ADVERTISE.COM DOES NOT WARRANT, REPRESENT OR GUARANTEE THAT THE USE OF ITS LISTINGS OR LINKS, OR ANY OTHER SERVICES PROVIDED IN CONNECTION WITH OR IN ADDITION TO THE FOREGOING WILL BE UNINTERRUPTED, UNDISRUPTED OR ERROR-FREE.
12.3 Indemnification. Each party will indemnify, defend and hold harmless the other party, including its respective affiliates, subsidiaries and officers, members, shareholders, directors, employees, partners and designated agents thereof, from any and all third party claims, liability, damages, expenses and/or costs (including, but not limited to, attorney’s fees) arising from the other party’s breach of any term, warranty, representation or covenant in this Agreement. Each party’s obligation to indemnify is conditioned upon the other party providing prompt notification of any and all such claims, unless the failure to notify does not materially and adversely affect the defense. The indemnified party will reasonably cooperate with the
indemnifying party in the defense and/or settlement thereof. The indemnified party may have its own counsel in attendance at all proceedings and substantive negotiations relating to such claim at the indemnified party’s sole cost and expense. If the indemnified party compromises or settles any such claim without the prior written consent of the indemnifying party, then the indemnifying party shall be released from its indemnity obligations with respect to the third party claim so settled. The indemnifying party shall not settle any third party claim in a manner detrimental to the indemnified party without the written consent of the indemnified party, not to be unreasonably withheld or delayed.
12.4 DISCLAIMER. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ADVERTISE.COM HEREBY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED (INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE), WITH RESPECT TO THE PROVISION OF THE SERVICES PROVIDED TO PUBLISHER HEREIN. ABSENT ANY PROVISION TO THE CONTARY HEREIN, AND WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PUBLISHER ACKNOWLEDGES THAT ALL SERVICES PROVIDED BY ADVERTISE.COM HEREIN ARE PROVIDED “AS IS” WITHOUT ANY WARRANTIES OF ANY KIND.
13. LIMITATION OF LIABILITY.
13.1 EXCLUSION OF DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER ADVERTISE.COM NOR ITS OFFICERS, DIRECTORS OR EMPLOYEES SHALL BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOST REVENUES, AND LOST PROFITS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
13.2 TOTAL LIABILITY. ABSENT FRAUD OR WILLFUL MISCONDUCT, TO THE MAXMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ADVERTISE.COM’S LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED AN AMOUNT EQUAL TO THE TOTAL AMOUNTS PAID TO PUBLISHER DURING THE SIX (6) MONTHS IMMEDIATELY PRIOR TO THE DATE THE CAUSE ACTION AROSE.
14.1 Assignment/Change of Control. Neither party may assign this Agreement, in whole or in part, without the other party’s written consent (which will not be unreasonably withheld). In the event of a change of control, merger, reorganization or sale of all, or substantially all, of one party’s assets to a third party, the other party may terminate the agreement upon 10 days’ prior written notice at any time after the closing of such transaction.
For the purposes hereof, a “change of control” shall mean a transaction in which the shareholders of a party prior to the closing do not retain majority ownership of the party after the closing of such transaction.
14.2 Governing Law/Venue. 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
14.3 Arbitration. The parties hereby agree to waive their right to a jury trial and agree to submit any dispute(s) that may arise in relation to this Agreement to binding arbitration before a single arbitrator. The 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 agreement cannot be reached between the parties as to the selection of the single arbitrator, then each side 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. Attorney’s fees and costs as well of the costs of the arbitrator shall be awarded to the prevailing party.
14.4 Notices. 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; (ii) transmitted by postage prepaid registered or certified mail, return receipt requested; (iii) deposited prepaid with a nationally recognized overnight courier service; or (iv) sent by facsimile. Unless otherwise provided herein, all notices will be deemed to have been duly given on: (a) the date of receipt (or if delivery is refused, the date of such refusal) if delivered personally or by courier; (b) three (3) business days after the date of posting if transmitted by mail; or (c) if transmitted by facsimile, the date a confirmation of transmission is received. Either party may change its address for purposes hereof on not less than three (3) business days prior notice to the other party.
14.5 Force Majeure. 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.
14.6 Severability. 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.
14.7 Entire Agreement. This Agreement is the complete and exclusive agreement between the parties with respect to the subject matter hereof, superseding and terminating any prior agreements and communications (both written and oral) regarding such subject matter. Publisher shall not modify this Agreement except by a written document executed by both parties.
14.8 Independent Contractors. 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.
14.9 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be an original or faxed copy and all of which together shall constitute one instrument.
14.10 Authority. Publisher has the full right and authority to enter into this Agreement and to perform the acts and obligations required of it hereunder. Publisher’s execution of this Agreement and performance of its obligations hereunder do not and will not violate any agreement to which it is a party or by which it is bound, and it will comply with all applicable laws, rules and regulations (including, without limitation, privacy and data control laws). When executed and delivered, this Agreement will constitute the legal, valid and binding obligation of Publisher, enforceable against it in accordance with its terms.
The following Sections 1-7 apply to the distribution of Paid Listings via the Publisher Network and Publisher Product.
1. Display of Paid Listings. Publisher will make or refer search queries, ad requests based on site pages, and other ad calls or requests for listings to Advertise.com’s servers via a live data feed. If any Paid Listings are returned by Advertise.com’s servers in response to such requests, such Paid Listings will be displayed via the Publisher Network and Publisher Product. Publisher will not display or allow any third party in the Publisher Network and Publisher Product to display any CPC or price-related data that would allow users to determine the price paid by advertisers in connection with Paid Listings. Publisher will cooperate with Advertise.com to allow Advertise.com to track Clicks on Paid Listings displayed on the Publisher Network and Publisher Product, including the use of redirects, tracking URLs or other methods as reasonably requested by Advertise.com. Other than as set forth herein, Publisher shall be solely and exclusively responsible for the design, development, operation and maintenance of the Publisher Network and Publisher Product, and for all advertising, sponsorship or other use of the media contained therein. Publisher will implement the Paid Listings within ten (10) days of the Effective Date, such implementation to be verified by Advertise.com recording at least one Click attributable to the Publisher Network and/or Publisher Product.
2. Publisher Display Ordering; De-duplicating. Publisher represents that that it sorts, ranks and delivers Paid Listings for the Publisher Network and Publisher Product as indicated in this Agreement. In the event that Publisher decides to change the method by which it determines the ranking of its Paid Listings, Publisher will provide to Advertise.com thirty (30) days prior written notice of such change. Publisher further represents that, to the extent it displays its own or other third party listings on the Publisher Network and Publisher Product in addition to the Paid Listings, if any such listing is duplicative with any Paid Listing, Publisher will decide whether to show such listing or the Paid Listing on the basis of which one carries the higher CPC.
3. Position in Paid Listings. If Publisher sorts, ranks and delivers listings on the Publisher Network and/or Publisher Product based on CPC amounts, a) Publisher must deliver Advertise.com’s Paid Listings above or in a more favorable position than (i) any other listing with the same CPC and (ii) the listing with the next lowest CPC; and b) Publisher will in no way manipulate the Paid Listings to deliver Advertise.com’s Paid Listings in a position below or less favorable than listings with CPCs lower than the Paid Listings.
4. Top Bid Pricing. Publisher agrees to provide Advertise.com with an automated, regularly updated mechanism from which Advertise.com can determine the bid prices (CPC paid to Publisher) of the top 5 listings advertisements sent to Publisher Network and Publisher Product for individual and specific queries from Publisher. For example, Publisher may make available an API or other data interface that provides such data.
5. CPC Bid. To optimize CPC bid pricing, Advertise.com may designate Publisher ad calls/requests to be directed to certain of its servers, and Publisher shall follow such designations as they are provided to Publisher.
6. Traffic Volume and Increases. Publisher will provide Advertise.com with 3 days prior written notice before launching with new affiliates or traffic sources that will, in Publisher’s reasonable opinion, increase the number of Publisher queries by the lesser of 50% over then-current levels or 500,000 queries per day. Advertise.com will have no obligation to pay for Clicks for which a timely notice is not provided under this section.
7. Blocking Distribution. Advertise.com may request that Publisher block distribution of Paid Listings to a specified list of sources (keywords, sites, and/or IP addresses) or via any distribution method deemed questionable by Advertise.com. Advertise.com also reserves the right to make a written request to Publisher for it to block specific Paid Listings for display to specific domains and/or users. Once Advertise.com makes this request, Advertise.com is not obligated to pay Publisher for any clicks from such domains and/or users. If Publisher identifies the domain that the query originates from to Advertise.com, then Advertise.com may perform this blocking. Advertise.com reserves the right to ask Publisher to block any international traffic, including international queries and clicks, for international users and listings appearing on international sites. Advertise.com also reserves the right to ask Publisher to block all adult-related traffic, including adult queries and clicks generated as a result of these adult queries. Advertise.com may update the list of prohibited distribution Publishers or sources from time to time, in its sole discretion. All sources contained within the list must be blocked from distribution by Publisher as soon as practicable after, but in any event within 5 business days from receipt of notice from Advertise.com. Advertise.com shall have no obligation to pay Publisher for qualified Clicks on Paid Listings after Advertise.com makes the relevant request to block distribution.
Below is the level of service to be supplied by Advertise.com in connection with Advertise.com’s provision of Paid Listings (the “Service”). The Service to be provided to Publisher shall consist of a feed of Paid Listings as defined in the Agreement.
Publisher Implementation Guide. Following the execution of this Agreement, Advertise.com will provide Publisher with a Publisher implementation guide to assist in the process of implementing the technical aspects of the Service. The parties will use commercially reasonable efforts to abide by the procedures and steps set forth in the guide.
Service Integration Technical Assistance. During the Term, Advertise.com agrees to provide a designated technical account manager during normal business hours (9am – 6pm Pacific Time) to Publisher to assist in the effective integration of the Service onto the Publisher’s site. In no event will such support exceed five (5) hours per month, and all such support will be provided during business hours. The parties agree that the Service is provided in a standard format and is well documented. Advertise.com will not provide technical assistance relating to on-site server configuration or programming.
Service Uptime. The Service will be available 24 hours/day, 7 days/week. Scheduled downtime will be communicated to Publishers with 5 business days’ notice. The Service is guaranteed to be up 99.5% of the time as measured weekly and 99.8% of the time as measured monthly, excluding scheduled downtime. Should Advertise.com determine that a reconfiguration of the Service is required, such as major software version changes, changes in hosting facilities or other network reconfiguration; Advertise.com will provide Publisher with 30-day notice of such change, and will work in good faith to minimize any Service outages.
Quality Criteria. Advertise.com will use commercially reasonable efforts to ensure that the Paid Listings returned by the Service shall not contain more than 3% Inactive Links out of any random sample of 10,000+ queries. “Inactive Links” shall be defined as any link provide by the Service which, when clicked, does not result in the user receiving a web page within 60 seconds at least 3 out of 5 times in any 1 week period.
Advertise.com Email Publishers Terms & Conditions
These terms and conditions (“Terms and Conditions”), together with all amendments, attachments, and policies (collectively, the “Agreement”) govern your (“Email Publisher,” “You” or “Your”) conduct while participating in and using Advertise.com’s Email Publisher Network Website services (“Services”). By agreeing to this Agreement, Publisher acknowledges that it will be bound by these Terms and Conditions and will recognize, abide by, and be bound by the terms of all amendments, attachments, and policies that Advertise.com may issue and/or post at a future time. These Terms and Conditions supersede all prior agreements and understandings entered into by and between the Publisher and Advertise.com, Inc. These Terms and Conditions constitute the entire and only agreements between Advertise.com and Publishers for the Services hereunder. A Publisher must agree to these Terms and Conditions in their entirety, otherwise Publisher is not authorized to use the Services in any manner what-so-ever.
The Services provided by Advertise.com allow Email Publishers to promote an advertiser’s products and services and receive revenues. Advertise.com reserves the right to reject and/or remove any Publishers applying to use or participating in our Services or on any of our website(s) at any time for any reason as determined solely by Advertise.com.
This Agreement is a legal agreement between Advertise.com (‘Company’) and You, the user of the Advertise.com Website (the “Site”). You and Company may also be individually referred to herein as a “Party’”and collectively as “Parties”. You agree to use the Site and any additional services offered by Company in the future only in accordance with this Agreement. Company reserves the right to make changes to the Site at any time without specific or prior notice to you. Your continued use of the Site after any such modification thereof shall constitute Your consent to such modification. The latest version of this Agreement will be posted on the Site and you should review this agreement prior to each use of the Site. It is Your responsibility to regularly check the Site, since you will be bound by all terms and condition posted to it.
I. USE OF THE SITE The Site allows Publishers to email content of advertisers and receive revenues. Revenues are paid on a Cost Per Click basis (CPC). Revenues are generated from valid clicks and other factors as determined by Advertise.com. The terms and conditions of Advertiser programs shall be posted on the Site. The Company grants Email Publisher a limited, revocable, non-exclusive and non-transferable right to download programs and publish them in accordance with this Agreement.
Company will compile, calculate, and determine Your Email Publisher revenue share. Company figures and calculations shall be final and binding. Any questions regarding the data provided by Company need to be submitted in writing within 15 days of receipt, otherwise the information will be deemed accurate and accepted as such by You.
II. LICENSE All Email Publishers need official approval from Company before they can officially use the Site and its Services. Only Email Publishers that have been reviewed and approved are permitted to use the Site. Company reserves the right to withhold or refuse approval for any reason, or no reason whatsoever.
A. Email Publisher represents, warrants, and covenants that during the Term of this Agreement, each email sent by You in connection with this Agreement:
· Is Fully CAN-SPAM compliant.
· Are sent using only permission based email lists that the users have legitimately opted into.
· Are written in English and contain only English language content unless otherwise stated in writing and preapproved by Company.
· Is sent from a top-level, publicly registered, domain name.
· Does not offer incentives to users to click on ads; incentives include but are not limited to awarding them cash, points, prizes, contest entries, etc.
· Is fully functional at all levels; no ‘under construction’ sites or sections.
· Does not contain any spawning processes; pop-ups and exit pop-ups are prohibited.
· Is sent from a lists You own, and which our offers will be mailed from.
· Contains the “friendly from” line Company provides and You must use, which says “Internet Services Today.”
· You will only use subject lines we provide, and will not use Your own subject lines without prior approval from Company.
· You will send a screenshot of the email to Company, before it is sent out.
· You will not engage in email harvesting, falsifying routing or header information, dictionary attacks or any other acts that may be considered deceptive.
· All emails will be clearly identified as an advertisement of solicitation.
B. Email Publisher further represents and warrants that the content of the emails sent by Email Publisher will not infringe on any personal, intellectual property, or copyrights including but not limited to:
· Racial, ethnic, political, hate-mongering or otherwise objectionable content
· Investment, money-making opportunities or advice not permitted under law
· Gratuitous violence or profanity
· Material that defames, abuses, or threatens physical harm to others
· Promotion of illegal substances or activities such as illegal online gambling, how to build a bomb, counterfeiting money, etc.
· Software Pirating (e.g., Warez, Hotline)
· Hacking or Phreaking
· Any illegal activity what-so-ever
· Any spoofing, redirecting, or trafficking from adult-related websites in an effort to gain traffic
Company grants You a limited, revocable, non-transferable, non-exclusive license, if approved, to use the Site and any data, reports, information or analyses arising out of such use, subject to this Agreement. You acknowledge and agree that You do not have, nor will claim any right, title, or interest in the Site software, applications, data, methods of doing business or any elements thereof. You may only access the Site via web browser, email, or in a manner approved by Company.
It is agreed and understood that the Email Publisher does not gain any ownership rights what-so-ever to the Site, Services, programs, or any other property at all by operation of the Agreement. Acceptance of You as an Email Publisher by Company, does not constitute a waiver of any rights by Company.
III. FRAUD AND INVALID CLICKS Company actively monitors traffic for Fraud. If we detect fraud, Your account will be made inactive pending further investigation. Should any fraud what-so-ever be confirmed as determined in Company’s sole discretion, Email Publisher will be terminated without right to any recourse of any kind.
If Email Publisher fraudulently adds clicks or inflates clicks by fraudulent traffic generation (as determined solely by Company, such as pre-population of forms or mechanisms not approved by Company), you will forfeit Your entire revenue for all campaigns and Your account will be terminated. Company reserves sole judgment in determining fraud, and you agree to this clause.
It is the OBLIGATION of the Email Publisher to prove to Company that they are NOT committing fraud. Company will hold Your payment in ‘Pending Status’ until you have satisfactorily provided evidence that you are not defrauding the system. We flag accounts that:
Have click-through rates that are much higher than industry averages and where solid justification is not evident.
Have shown fraudulent clicks as determined by our clients.
Have ONLY click programs generating clicks with no indication by Site traffic that it can sustain the clicks reported.
Use fake redirects, automated software, and/or fraud to generate clicks or leads from our programs.
IV. PAYMENT The Parties understand and agree that payment to Email Publisher will be made 15 days after the last day of the month in which the click occurred. All accounts will be paid in US dollars ($US). No payment will be issued for any amounts less than $25 US Dollars. Every Email Publisher account must have a unique, valid taxpayer identification number (TIN) or valid Social Security number. All payments are based on figures as defined, accounted, and audited by Company.
If Advertiser does not pay on time, Company will notify Email Publisher and offer its best efforts in matters related to collections. Company is not obligated to pay Email Publisher for any clicks Company is unable to collect from the relevant advertiser. Company will not pay for clicks that occur before a campaign is initiated, or after a campaign terminates.
Company will not be responsible to compensate You for clicks that are not recorded due to Your error. A Email Publisher may only pursue legal claims for non-payment against any advertiser who has not made payment available.
V. TERMINATION This Agreement shall commence upon Your acceptance and remain in effect until terminated. This Agreement may be terminated by either Party upon forty-eight (48) hours prior notice. This Agreement shall terminate immediately upon the dissolution or insolvency of either Party. Company reserves the right, in its sole and absolute discretion, to terminate a campaign and remove Email Publisher at any time with or without cause. Company also reserves the right to terminate Your access to the Site at any time without notice.
Termination notice may be provided via email and will be effective immediately. All legitimate moneys due to Email Publisher will be paid during the next billing cycle. If Email Publisher defrauds the system, then payment is revoked as determined solely by Company.
The representations, warranties and obligations contained in paragraphs 5, 6, 7, 8, 9 and 10 shall remain in full force and effect after termination of this Agreement. All payment obligations accruing prior to the termination date shall survive until fully performed.
VI. REPRESENTATIONS AND WARRANTIES
Company reserves the right, in its sole judgment, to reject, remove, cancel, ask for verification, terminate, and take any other action it deems necessary to maintain the standards of excellence, Company strives to achieve. With this in mind Email Publisher agrees to be governed by any and all rules, practices, and guidelines established by the Interactive Advertising Bureau (IAB) and any other such recognized leading consumer protection agency for the Advertising Industry. Specifically every Email Publisher represents and warrants that it has reviewed the IAB website and read Standards Guidelines and Best Practices policies applicable to Email Publisher. Furthermore each Email Publisher agrees to abide by these Best Practice Standards and Guidelines and understands that failure to do so will lead to immediate termination of this agreement. IAB Standards, Guidelines and Best Practices are hereby incorporated into this agreement by reference.
In order to be eligible to use the Services, You represent and warrant that all of your email distribution lists will follow the below Best Practices and You further represent and warrant that once You become a Email Publisher in Company’s Email Publisher Network, that you will maintain all of the below Best Practices:
· Your Email is in compliance with all applicable laws and does not contain or promote, nor links to another website that contains, libelous, defamatory, abusive, violent, prejudicial, obscene, sexually explicit or illegal content.
· Maintain a Suppression list that must be downloaded and scrubbed against Email Publisher’s mailing list prior to each email deployment or every 5 days, whichever occurs more frequently. Under no circumstances can suppression lists be harvested as a list to send commercial emails;
· Before making any changes to creatives or from/subject lines, You must first obtain prior written approval by Company before email deployment;
· Your Email strictly complies with the Advertise.com approved Subject and From Lines, unless You have received prior Company written approval for a change;
· You shall disclose all Internet Protocol (“IP”) addresses with which You conduct any and all transactions, business and/or operations;
· Your promotion of Programs or Products by any email must not infringe, misappropriate or in any way violate any copyright, patent, trademark, trade secret or other similar intellectual property right, or in any way violate or breach any duty toward, or rights of, any person or entity including, without limitation, rights of privacy, and publicity; and, must not result in any consumer fraud, product liability or breach of contract to which You are a party. or cause injury to any third party.
· You shall not use Advertise.com’s or its Advertisers’ names (including any abbreviations) or any trademark, trade name, service mark, logo or other Company identifying information in the originating or return email address line, header or subject line of any email You send unless otherwise directed to do so by Company in writing.
· You agree not to send Unsolicited Commercial Email (i.e., SPAM);
· You cannot send any emails to newsgroups, chat rooms, bulletin boards or any other places unless expressly approved in writing from Company. You cannot send emails which are generic in nature and does not mention any specific content unless given prior approval from the company ;
· You agree your email will not contain or link to any pornographic, racial, ethnic, political, software pirating (e.g. Warez) or hacking, hate-mongering, or otherwise objectionable content;
· You agree not to engage in any illegal activity, what-so-ever;
· You own or have the legal right to use and distribute all content, copyrighted material, products, and services displayed in Your email; You agree to not use deceit when emailing any content; You have the right, power, and authority to enter into this Agreement and grant the rights specified herein;
· You will not attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the Site tags, source codes, links, pixels, modules or other data provided by or obtained from Company that allows Company to measure ad performance and provide its service (‘Site Data’);
· If instructed to do so by Company and/or if this Agreement terminates, You will immediately remove and discontinue the use of any Site Data;
· You acknowledge that Company does not represent, warrant, or make any specific or implied promises as to the successful outcome of any email campaign;
· You agree to display the creative exactly as it appears in the campaign and will not alter any creative that has been submitted to the Site;
· If You are notified that fraudulent activities may be occurring on Your Media, and You do not take any actions to stop the fraudulent activities, then You are responsible for all associated costs and legal fees resulting in these fraudulent activities;
· If any errors or undesirable results occur due to no fault of Company, Company shall not be responsible for losses and email Email Publisher may not be compensated.
· You will add Advertise.com to Your seed list.
VII. Use of Distribution Partners (Sub Affiliates) Email Publisher shall not use any Sub Affiliates for Company’s email campaigns. Any use of a Sub Affiliate by Email Publisher requires a separate agreement with Company that has been duly executed by both Parties.
VIII. CUSTOMER INFORMATION; NON-DISCLOSURE All information submitted by end-user customers pursuant to a campaign is proprietary to and owned by Company. Such customer information is confidential and may not be disclosed by Company. In addition, You acknowledge that all non-public information, data and reports received from Company hereunder or as part of the services hereunder is proprietary to and owned by Company. All proprietary information is protected by copyright, trademark, and other intellectual property law. You agree not to reproduce, disseminate, sell, distribute or commercially exploit any proprietary information in any manner. These non-disclosure obligations shall survive the termination of this Agreement.
Email Publisher understands and agrees that, in the event of a breach of the forgoing representations the injured party shall be entitled to injunctive or other equitable relief as a remedy, without the necessity of posting a bond with respect thereto. Any such relief awarded shall be in addition to any appropriate relief which may be awarded in the form of monetary damages, and the injured party shall be entitled to monetary damages to the fullest permitted under applicable law. The foregoing remedy is a material, bargained for basis of this agreement and has been taken into account in each party’s decision to enter into this Agreement.
IX. OPT-IN CONFIRMATION
X. VALID SENDER INFORMATION
Distribution of all email shall include a valid sender domain name that is publicly registered and/or contains a responsive IP address. You shall only distribute email from a valid sender domain name and/or responsive IP address that You have authorization to utilize for the purposes of sending commercial email.
Email Publishers shall not relay or retransmit any email that mislead or deceive the origin of the email nor shall any email be transmitted from any email account registered to false owners. Distribution of all emails must include valid and responsive contact information of the sender, list manager and/or list owner. This contact information shall include Your valid physical postal address and, optionally, Your phone number. Company reserves the right to add an address should Email Publisher fail to include one, but Company is in no way responsible for doing so. You must not use any invalid or erroneous email header information, including, without limitation, source, destination, domain, IP address and/or routing information.
XI. UNSUBSCRIBE/ OPT-OUT LINK
All email of any kind that You send must include a functioning unsubscribe link, whereby recipients can request not to receive future email messages from Email Publisher. All unsubscribe links must remain active and capable of receiving opt-out requests for no less than thirty (30) days after transmission of the email communication. The Opt out process should be no more than 1-2 clicks and cannot contain CAPTCHAS or other complicated steps.
Email Publishers agree to process all unsubscribe requests within five (5) business days or less from the date of Your receipt of a request. In addition, You shall maintain electronic and/or tangible records evidencing the removal of such email from Your lists, together with every deleted email address provided to you by Company. Advertise.com reserves the right to inspect and verify compliance as required.
Any requests by recipients of Your email regarding the location where Opted-In to must be responded to within seventy-two (72) hours. Your response must include the date, time, originating IP address, URL and the location where the applicable email address or other consumer information was submitted.
XII. LIMITATION OF LIABILITY; DISCLAIMER OF WARRANTY IN NO EVENT SHALL COMPANY BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY DAMAGES OF ANY KIND ARISING FROM YOUR USE OF THE SITE, OPERATION OF ANY EMAIL CAMPAIGN, OR YOUR EMAILING OF ANY CONTENT WHAT-SO-EVER FROM YOUR EMAIL SERVERS, INCLUDING BUT NOT LIMITED TO SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE AND CONSEQUENTIAL DAMAGES, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE INFORMATION, CONTENT AND SERVICES ON THE SITE ARE PROVIDED ON AN ‘AS IS’ AND ‘AS AVAILABLE’ BASIS WITH NO WARRANTY EXPRESSED OR IMPLIED. YOU USE THE SITE, SERVICES, AND RUN PROGRAMS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY LAW, COMPANY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE OPERATION OF THE SITE, THE INFORMATION, SERVICES, AND CONTENT INCLUDED ON THE SITE AND PROVIDED BY COMPANY, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF ADVERTISERABILITY AND FITNESS FOR A PARTICULAR PURPOSE. COMPANY DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ON THIS SITE OR PROVIDED BY COMPANY IS ACCURATE, COMPLETE OR CURRENT.
XIII. INDEMNITY You shall indemnify, defend and hold Company and all its affiliates , officers, subsidiaries, employees and agents, harmless from and against any and all claims, allegations, liabilities, costs and expenses (including reasonable attorneys’ fees) by third parties arising out of
Your: (a) improper use of the Site; (b) improper operation of an email campaign or the improper operation of your email servers; (c) actions of Sub Affiliates (see section VII); or (d) breach or violation of any term or condition in this Agreement. Email Publisher agrees to fully indemnify Company from any possible liability from any source resulting from the Email Publishers use of the Site and participation in the Company’s email program. Company shall indemnify, defend, and hold You harmless from and against any and all claims allegations, liabilities, costs and expenses (including reasonable attorneys’ fees) by third parties arising out of any actual infringement of intellectual property rights resulting from Your display of Company’s advertising creative provided in connection with operating a campaign, provided is has not been modified by You in any way.
XIV. CHOICE OF LAW This Agreement shall be construed and controlled by the laws of the State of California. Any dispute arising in connection with this Agreement, including, without limitation, a breach of this Agreement, shall be governed by the laws of the State of California. The Advertiser agrees to submit to the jurisdiction of the state and federal courts located in Los Angeles.
XV. SEVERABILITY If any provision of this Agreement is held to be invalid, illegal, or unenforceable for any reason, such invalidity, illegality or unenforceability shall not effect any other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had not been contained herein.
XVI. FORCE MAJEURE Neither Party shall be liable to the other by reason of failure or delay in the performance of its obligations hereunder on account of Acts of God, fires, storms, war, governmental action, labor conditions, earthquakes, natural disasters, interruption in internet service or any other cause which is beyond the reasonable control of such Party.
XVII. ATTORNEY’S FEES Company shall be entitled to an award of its reasonable costs and expenses, including attorneys’ fees, in any action or proceeding arising out of this Agreement, in which it prevails.
XVIII. MISCELLANEOUS This Agreement contains the sole and entire agreement and understanding between the Parties relating to the subject matter herein, and merges all prior discussions, whether through officers, directors, salespersons, employees or consultants. Each Party is an independent contractor and not a partner, joint venturer or employee of the other.
All notices shall be sent to the addresses submitted by You when signing up for the service by certified mail, fax, email, or courier.
XIX. IMPORTANT NOTICE: The CAN-SPAM Act Email Publishers shall, at all times, comply with The CAN SPAM Act which regulates the form (what information must be included and the required format) commercial email must take. Specifically, The CAN SPAM Act requires that all commercial email contain the following:
· Clear and conspicuous identification that the message is an advertisement or solicitation, if the email is unsolicited
· Clear and conspicuous notice of the opportunity to opt-out
· A truthful subject line.
· A functioning mechanism to opt-out.
· A valid postal address for the sender.
· Labeling of unsolicited sexually explicit material.
Compliance with The CAN SPAM Act is mandatory for continued participation in and use of the Site. A violation of The CAN SPAM Act will lead to termination of Email Publisher and Company reserves any other legal rights it may have against Company. The CAN SPAM Act is hereby incorporated into this Agreement by reference and can be found at: http://www.ecfr.gov/cgi-bin/retrieveECFR?gp=1&SID=cea8be427690a26231dda41b8ccb5f75&ty=HTML&h=L&n=16y184.108.40.206.40&r=PART.
XX. DISPUTE RESOLUTION The Parties will use their commercially reasonable efforts to resolve any controversy or dispute arising out of or relating to this Agreement promptly by negotiations between the Parties prior to the commencement of formal legal proceedings. Consequently, the Parties agree to use the following alternative procedure prior to the commencement of any formal legal proceedings. At the written request of a Party, each Party shall appoint a knowledgeable, responsible representative to meet and negotiate in good faith to resolve any dispute arising under this Agreement. The Parties intend for these negotiations to be conducted by non-lawyer business representatives. The discussions will be left to the discretion of the representatives. Upon agreement, the representatives may utilize other alternative dispute resolution procedures such as mediation to assist in the negotiations. Discussions and correspondence among the representatives for purposes of these negotiations will be treated as Confidential Information developed for purposes of settlement and therefore be deemed inadmissible in any litigation that may ensue pursuant to California Evidence Code section 1152 et. seq. In the event that one Party does not respond to the other Party’s request for such negotiations within five (5) business days of such request, then the requesting Party may commence formal legal proceedings pursuant to section 12.4 below. Notwithstanding anything to the contrary, with respect to any dispute giving rise to a claim for injunctive relief, the provisions of this Section will apply only upon the written request of the Party possessing such claim, and such Party may elect to commence legal proceedings regarding such claim at any time (and nothing contained in this Agreement will be construed to require such Party to provide any notice thereof).
Arbitration. The Parties hereby agree to waive their right to a jury trial and agree to submit any dispute(s) that may arise in relation to this Agreement to binding arbitration before a single arbitrator. The 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 agreement cannot be reached between the parties as to the selection of the single arbitrator, then each side 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, including the awarding of attorneys fees and costs to the prevailing party. Notwithstanding anything to the contrary, with respect to any dispute giving rise to a claim for injunctive relief, the provisions of this Section will apply only upon the written request of the Party possessing such claim, and such Party may elect to commence legal proceedings regarding such claim at any time (and nothing contained in this Agreement will be construed to require such Party to provide any notice thereof).
XXI. COPYRIGHT The content, organization, graphics, design, compilation, magnetic translation, digital conversion and other matters related to the Site are protected under applicable copyrights, trademarks and other proprietary (including but not limited to intellectual property) rights.
The copying, redistribution, use or publication by you of any such matters or any part of the Site, except as allowed under ‘Limited Right to Use’ below, is strictly prohibited. You do not acquire ownership rights to any content, document or other materials viewed through the Site. The posting by Email Publisher of information or materials on the Site does not constitute a waiver of any right in such information and materials.
Copyright and Service Mark Information: All trademarks are the property of their respective owners.
XXII. MODIFICATION This Agreement is the complete and exclusive agreement between the parties with respect to the subject matter hereof, superseding and terminating any prior agreements and communications (both written and oral) regarding such subject matter. This Agreement may only be modified, or any rights under it waived, by a written document executed by both parties.