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Advertise.com
Terms & Conditions
Affiliate Program | Advertisers
Advertiser
Terms and Conditions
The Advertise.com advertising program allows advertisers
to list their websites in the search results generated
by Advertise.com and/or its affiliates in response to
a search term corresponding to the subject of the search
listing. Advertisers choose keywords that are relevant
to their websites while selecting the precise amount they
wish to pay when consumers click on their listings. Site
listings on Advertise.com are ranked and determined according
to the highest bidders. Signing up for the Advertise.com
advertising program does not guarantee that any or all
of the search terms submitted will be accepted by Advertise.com
or that such search terms will generate any traffic to
Advertiser’s site. Advertise.com reserves the right
to reject and/or remove any search terms submitted by
Advertisers.
INTRODUCTION
Advertise.com, Inc., a California corporation will provide
the Advertiser with access to the “Advertise.com”
pay-per-click search engine subject to “the Advertiser's”
compliance with the terms and conditions contained in
this “agreement.” Please read these Terms and
Conditions carefully prior to signing up for an Advertise.com
advertising account. This “agreement” is subject
to change by Advertise.com at any time. By enrolling as
an Advertiser with Advertise.com, Advertiser agrees to
be bound by these terms and conditions.
USE
Advertise.com, for purposes of this agreement, is the
process by which consumers search for a desired subject
and Advertisers bid for search terms, and which search
terms produce a search result that contains Advertiser’s
search listings. These results are viewed at Advertise.com's
website as well as third-party affiliate websites of Advertise.com.
Advertiser understands and agrees that consumers may view
and access search listing advertisements from either Advertise.com
or from a third-party website that is an affiliate of
Advertise.com.
PAYMENT
Advertise.com requires payment in advance for all Advertiser
accounts. Advertisers must fund their accounts with at least
$50 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 listings 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 the account will be
charged for all clicks on Advertiser’s search listing
advertisements and that Advertise.com is not responsible for
the maintenance of Advertiser’s website. Payments to Advertise.com
must be made by credit card. 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.
CREDIT CARD
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 and not
on Advertiser's ability to convert clicks to sales. 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
program. 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. 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.
TRACKING
All payments will be made based on clicks and revenue
generated as determined by Advertise.com's tracking.
TERMINATION
Advertiser may suspend or cancel participation in the
Advertise.com advertising program by written notice to
Advertise.com. Following such notice, Advertiser will
be entitled to receive a refund for all amounts not yet
charged to account. However, initial $50 deposit is non-refundable.
Advertise.com may cancel Advertiser’s participation
in the Advertising program at any time for any or no reason.
Advertise.com reserves the right to cancel the advertising
program at any time. 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
non refundable.
INDEMNIFICATION OBLIGATIONS
Advertiser agrees to indemnify and hold Advertise.com
and its officers, directors, agents, affiliates and employees
from and against all claims, actions, liabilities, losses,
expenses, damages, and costs (including without limitation
reasonable attorney fees) resulting from claims or actions
arising out of or in connection with (i) Advertiser's
participation in the Advertise.com Advertising program,
(ii) Advertiser's websites or any links from Advertiser's
websites (iii) any 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 websites (iv) any breach by Advertiser
of any duty, representation, warranty under any agreement
with Advertise.com, or (v) relating to a contaminated
file, virus, worm, or Trojan horse emanating from Advertiser’s
websites. 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.
RELEVANCY
Advertisers may only submit search terms and descriptions
to Advertise.com's advertising program that are relevant
to submitted websites or to those web pages contained
in 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.
SEARCH LISTINGS
Advertise.com does not guarantee that Advertiser’s
search listings will be available or displayed and Advertise.com
reserves the right to not place Advertiser’s search
listings within any search results list generated in connection
with the Advertise.com advertising program. The format
of Advertiser’s search listings may vary and Advertise.com
makes no representations as to the format of search listings.
In all cases information for the search listing must be
submitted in the form requested by Advertise.com.
TRANSFER OF RIGHTS
Advertiser’s registration with Advertise.com is for
sole, personal, and exclusive use. Advertisers may not
authorize others to use the 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. 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 search listing advertisements
by logging into his/her account from our homepage. Advertise.com
reserves the right to reject or remove any search listing
advertisement at its discretion. Advertiser represents
and warrants that the search listing advertisement, in
itself or through the site it links to, (i) does not violate
any law or regulation; (ii) does not infringe in any manner
any copyright, patent, trademark, trade secret or other
intellectual property right of any third party; (iii)
does not breach any duty toward or rights of any person
or entity including, without limitation, rights of publicity
or privacy, or had not otherwise resulted in any consumer
fraud, product liability, tort, breach of contract, injury,
damage or harm of any kind to any person or entity; (iv)
is not false or misleading; and/or (v) is neither defamatory,
libelous, slanderous or threatening.
Advertising and Creative Guidelines
Ads for the following products and services – or containing the
following content – must comply with these guidelines. Contact the
Legal Department if you have any questions.
Audio
An ad that includes audio must have a “off” button
Business Opportunities:
These include offers for
work-at-home, vending machines, display racks, pay phones, “get rich
quick,” day trading and medical billing 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 naďveté.
If the ad or its landing page collect personal information from children under 13:
• The 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: (1) the amount of any
payment; (2) the number of payments or period of repayment; (3) the
amount of any finance charge; or (4) the amount of any down payment:
• the amount of any down payment;
• the length of the loan and the amount of each payment; and
• the annual percentage rate.
Dietary Supplements
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.
E-mail Promoters
The advertiser must certify that it complies with the CAN SPAM Act.
“Free” Offers
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:
o The total cost of each shipment;
o The frequency of shipments;
o Any minimum purchase requirement; and
o Any other important conditions of the offer.
Functionality
The ad must:
• 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 unacceptable.
Gambling
• No gambling until further notice
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.
Illegal Products
Ads for products that assist a person in
breaking the law are not acceptable. This would include, for example,
an ad for a product that could help someone pass a drug test.
Hate
Ads for any group that is involved in hate speech or acts are not acceptable.
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.
Online Pharmacies:
• The advertised pharmacy must not issue prescriptions, unless it has a VIPPS (Verified Internet Pharmacy Practice Sites) seal.
• Ads for non-U.S. pharmacies may not be shown to U.S. viewers.
Pornography
Ads for pornography are not acceptable.
Provocative Content
• Ads containing nudity or dirty language are not acceptable.
•
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.
Software
Ads for “spyware” (adware) are not acceptable. 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.
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 & 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.
Testimonials
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.
Video
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.
LIMITATION OF LIABILITY AND WARRANTY
DISCLAIMER
The Advertiser expressly agrees that the use of Advertise.com
is at the Advertiser’s own risk. Advertise.com 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 of 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.
Any liability 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 already paid to Advertise.com,
its information providers, licensors, licensees, employees,
agents, consultants or contractors, be liable for any
indirect, special, incidental, or consequential damages,
arising out of 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 sales@advertise.com.
Advertise.com may, in its sole discretion, terminate Advertiser’s
account, and discontinue the advertising account, or use
of any search term if Advertise.com believes that Advertiser
has violated this Agreement or other policies or guidelines
that Advertise.com may post on Advertise.com. 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.
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.
APPROVAL
Advertise.com, in its sole discretion, may not approve
an Advertiser’s listing to the search results. 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.
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Affiliate
Program Terms and Conditions
Before you can become a participant in the Advertise.com
affiliate Program, you must first read and unconditionally
agree to all of the following terms and conditions. Please
read the following carefully. This document is a legal agreement
between Advertise.com, Inc. and you, the affiliate. The
Affiliate's participation in the Program is subject to all
the terms, conditions, limitations and waivers below. The
Affiliate acknowledges and agrees that by participating
in the Program the Affiliate will be unconditionally bound
by all the terms and conditions in this Agreement.
Participation In The Program
RECITALS
The parties wish to provide for a license to Partner to display Advertise.com’s Paid Listings on the Partner Network 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 Partner to Advertise.com.
NOW, therefore, for good and adequate consideration, the receipt of which is acknowledged, the parties agree as follows:
1. DEFINITIONS
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 Partner Network 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 “Partner Network” means web sites which are owned or operated by Partner or are contractually part of Partner’s syndication network
1.4 “Paid Listings” means an Advertise.com product that returns results containing paid Listings. 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.
2. LICENSE
2.1 License. Subject to the terms, limitations and conditions herein, Advertise.com hereby grants to Partner a non-exclusive license during the Term to publicly display, and allow third parties who operate sites on the Partner Network to publicly display Paid Listings in electronic form on the Partner Network. Partner and third parties who operate sites on the Partner 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. The license granted above is conditioned upon Partner’s, and sites in the Partner Network’s, observance of the following restrictions: (i) except as expressly permitted herein, Partner 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) Partner 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) Partner will not display, sublicense or syndicate Paid Listings on or to any third party or web site outside of the Partner Network unless it first obtains Advertise.com’s written consent; (iv) Partner will use the tracking URLs associated with each individual Listing provided by Advertise.com, if any, for all Paid Listings included on its Partner Network (though Partner may use the display URLs for purposes of displaying the Listing); (v) Partner will not display any Paid Listings on any adult-oriented web sites without the prior written approval of Advertise.com; (vi) Partner 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) Partner 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.
2.3 Zero Tolerance Policy.
Advertise.com MAINTAINS A ZERO TOLERANCE POLICY AND WILL TERMINATE YOUR ACCOUNT IMMEDIATELY IF YOUR WEBSITE IS FOUND TO HAVE ANY OF 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.
* LOADING OF RESULTS IN ANY POP UP WINDOWS OR CONSOLES
* ANY ILLEGAL ACTIVITY.
* ANY ACTIVITY THAT WE FEEL IS UNFIT FOR OUR ADVERTISERS
2.4 Display of Ads via Cookies or Downloadable Applications. The license granted above is conditioned on Partner’s, and sites in the Partner Network’s, observance of the following: a) if Partner displays or allows a third party to display Paid Listings via any “cookie” or application that is downloaded to a user’s computer or browser, Partner represents and warrants that such cookie or application shall: (i) not gather any personally identifiable information (such as an individual’s name, telephone number, e-mail address and/or street address) or financial information of the end user; and (ii) not gather any information about the web pages accessed by the computer on which it is installed; b) if Partner displays or allows a third party to display Paid Listings via any application that is downloaded to a user’s computer or browser, Partner represents and warrants that such application shall (iii) only be installed after clear and conspicuous notice to the end user; (iv) only be installed after the end user’s express and informed consent to installation; (v) allow for uninstallation that can be performed without undue effort or knowledge by the end user; (vi) allow for successful removal of such client-side application using the “Add/Remove Programs” functionality of Microsoft Windows (or similar on other platforms); (vii) not re-install itself without the end user’s express consent prior to each such re-installation; (viii) not install or allow the installation of any other programs not clearly and conspicuously disclosed to the end user, (ix) clearly display the Partner’s privacy policy (or a link or other access to it); and (x) comply with all applicable laws and regulations. Partner agrees to provide Advertise.com with a copy of, and a license to use, any and all downloadable applications and all updates and upgrades thereto that Partner uses, or allows third parties to use, to display Paid Listings.
2.5 Display of Ads on Partner Network. The license granted above is conditioned on Partner’s, and sites in the Partner Network’s, observance of the following: if Partner allows any third party to display Paid Listings, Partner 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 Partner 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.
2.6 Query Source Identification. For every ad call or other request for listings to Advertise.com, Partner 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.
3. PAYMENT TERMS.
3.1 Cost Per Click. Subject to the terms and conditions hereof, for any given calendar month, Advertise.com will pay Partner a share of revenues from Advertise.com invoices or charges for all qualified Clicks on listings advertisements, as recorded by Advertise.com’s or its customer’s click tracking system, as applicable. For each Click, the initial share of revenue paid to Partner will be forty (40) percent, or such other amount as mutually agreed to by Advertise.com and Partner, of the cost-per-click (“CPC”) bid by Advertise.com for the corresponding keyword(s). Advertise.com maintains the right, in its sole discretion, to decrease the share of revenue paid to Partner for credit card fraud, advertising complaints, non-qualified clicks, poor traffic quality and similar items. Advertise.com will determine the 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. Partner 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 Partner's web pages or disclosed to any third parties. Advertise.com shall have no obligation to pay for clicks if Partner makes any material misrepresentations in Exhibit C or if Partner violates the license terms set forth in Section 2 above.
3.2 Reporting and Payment. Advertise.com will make its “Partner Admin” available to Partner for preliminary daily reporting of clicks, and Partner acknowledges and agrees that (i) such reporting may not represent the number of qualified Clicks for which Advertise.com will pay Partner and (ii) it will control access to and maintain the confidentiality of its password for accessing the Partner 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 Partner acknowledges and agrees to the Query Source Identification as described in section 2.5, above. For every request, without such information Advertise.com’s ability to determine which clicks and ads are qualified or billable is impaired and thus Advertise.com may not pay Partner for the clicks and ads. Partner shall also notify Advertise.com of any changes, inaccuracies, or incompleteness of any statement Partner makes on Exhibit C, Part II. Advertise.com reserves the right to deduct from payments made pursuant to Section 3.1, or otherwise recoup any amounts paid to Partner in prior months for non-qualified Clicks.
3.3 Audit. Customer 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 Customer 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 Customer's ability to conduct business. Customer agrees that, in the event that Advertise.com demonstrates that discrepancies equal to or greater than, five percent (5%) exist, Customer shall pay to Advertise.com all costs associated with such audits.
3.4 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 Partner Network, (iv) that are from users in countries other than those explicitly agreed to in Exhibit C by Partner 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 Partner 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 Partner or any third party site in the Partner Network 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 Partner, or (2) require Partner to immediately cease displaying, and allowing third party sites in the Partner Network to display, Paid Listings via any particular means, method, product, or third party distributor, and/or (3) not pay Partner for the offending clicks.
3.5 Account Manager. Advertise.com will provide a designated account manager to Partner.
4. PARTNER OBLIGATIONS.
4.1 Implementation of Paid Listings. Within ten (10) days after the Effective Date Partner 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.
4.2 Attribution; Look and Feel. Partner 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, Partner shall control the look and feel of its search service.
5. Advertise.com OBLIGATIONS.
5.1 Service Levels/Technical Support. Advertise.com will use commercially reasonable efforts to provide the Service Levels and Technical Support as specified in Exhibit B.
6. PUBLICITY.
Advertise.com may issue a press release to announce the relationship contemplated by this Agreement without the prior written consent of Partner. Partner 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.
7. INTELLECTUAL PROPERTY OWNERSHIP.
7.1 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’s 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).
7.2 Proprietary Rights of Partner. Other than the Paid Listings, Partner will retain all right, title, and interest in and to the Partner Network (including, but not limited to, ownership of all copyrights, trademarks, patents, derivative works, modifications, lists of advertisers, algorithms, taxonomies, trade secrets and other intellectual property rights therein).
8. TERM AND TERMINATION.
8.1 Term. The term of this Agreement (the “Term”) will begin on 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.
8.2 Termination. Advertise.com may suspend performance and/or terminate this Agreement at any time without cause in its sole discretion upon ten (10) days’ prior notice.
8.3 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 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 Partner and its agents shall immediately cease all use of the Paid Listings.
8.4 Survival. The provisions of sections 1 and 6-12 (inclusive) will survive any termination or expiration of this Agreement for a period of three years.
9. CONFIDENTIALITY.
9.1 “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.
9.2 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.
9.3 Non-Circumvention Agreement. Provider has proprietary relationships with advertising clients on whose behalf Provider may purchase media from Customer. During the term of this agreement and for a period of 120 days after cancellation of campaign, Customer agrees not to solicit, induce, recruit or encourage any advertiser that the Customer knows, or has reason to know, is a current client with Provider, or has advertised on the Customer's Web Site through Provider during the twelve (12)-month period prior to the acceptance of the Customer to the Provider, for the purpose of offering to such advertiser products or services that compete with those of Provider, including, without limitation, the placement or publishing of advertising, with the exception of reasonably documented, preexisting relationships with advertisers (clients) or relationships entered into in the ordinary course of Customer's business. Furthermore, during the term of the Customer's inclusion in the Provider and for a period of 120 days after cancellation of Customer's account, Customer agrees that in the event it (the Customer) is approached, solicited, induced, recruited or encouraged by any client that the Customer knows, or has reason to know, is a current advertiser on the Provider, or has advertised through the Provider during the previous twelve (12) months period prior to being approached, for the purpose of offering to such Customer products or services that compete with those of Provider, including, without limitation, the placement or publishing of advertising, the Customer will notify Provider immediately and the Customer agrees not to conduct or enter into any business relationship with such client. The Customer understands and agrees that, in the event of a breach of the forgoing representations by Customer, Provider 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 Provider 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.
10. WARRANTY AND INDEMNITY.
10.1 Warranties. Advertise.com warrants that it owns, or has obtained the right to distribute and make available as specified in this Agreement, the Paid Listings provided to Partner 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. Partner represents and warrants that (i) its display of Paid Listings hereunder (including its allowing third parties to do so) does not and will not violate any term or condition of this Agreement and (ii) the information provided in Exhibit C is accurate and complete.
10.2 Indemnification. Each party will indemnify, defend and hold harmless the other party, its officers, directors and employees from any and all third party claims, liability, damages, expenses and/or costs (including, but not limited to, attorneys fees) arising from the other party’s breach of any warranty, representation or covenant in this Agreement. All such amounts will be reimbursed to the indemnified party as incurred, within thirty (30) days of submission of reasonable supporting documentation or invoices to the indemnifying party. 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.
10.3 Disclaimer. Except as specified in this agreement, neither party makes any warranty in connection with the subject matter of this agreement and each party hereby disclaims any and all implied warranties, including all implied warranties of merchantability and fitness for a particular purpose regarding such subject matter.
11. LIMITATION OF LIABILITY.
11.1 Exclusion of Damages. Other than as a result of breach of section 2 or pursuant to the indemnification provisions hereof, in no event will either party be liable to the other for any special, incidental or consequential damages, whether based on breach of contract, tort (including negligence) or otherwise, whether or not that party has been advised of the possibility of such damage.
11.2 Total Liability. Other than as a result of breach of section 2 or pursuant to the indemnification provisions hereof, in no event will either party be liable to the other for an amount in excess of the total amount paid to partner hereunder.
12. GENERAL.
12.1 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.
12.2 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 Count for all actions arising out of or related to this Agreement
12.3 Pre-Litigation Negotiations. 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).
12.4 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 can not 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).
12.5 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. Notices hereunder will be directed to, unless otherwise instructed by the receiving Party:
If to Advertise.com:
15303 Ventura Blvd., Suite 860
Sherman Oaks, California 91404
Attn: Director of Business Development
Fax: 818-380-3103
12.6 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.
12.7 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.
12.8 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. Except as provided for in Section 3.1, this Agreement may only be modified, or any rights under it waived, by a written document executed by both parties.
12.9 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.
IMPLEMENTATION
The following Sections 1-7 apply to the distribution of Paid Listings on the Partner Network.
1. Display of Paid Listings. Partner 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 on the Partner Network. Partner will not display or allow any third party in the Partner Network to display any CPC or price-related data that would allow users to determine the price paid by advertisers in connection with Paid Listings. Partner will cooperate with Advertise.com to allow Advertise.com to track Clicks on Paid Listings displayed on the Partner Networks, including the use of redirects, tracking URLs or other methods as reasonably requested by Advertise.com. Other than as set forth herein, Partner shall be solely and exclusively responsible for the design, development, operation and maintenance of the Partner Network and for all advertising, sponsorship or other use of the media contained therein. Partner 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 Partner Network.
2. Partner Display Ordering; De-duplicating. Partner represents that that it sorts, ranks and delivers Paid Listings for the Partner Network as indicated to Advertise.com in Exhibit C, Part II. In the event that Partner decides to change the method by which it determines the ranking of its Paid Listings, Partner will provide to Advertise.com thirty (30) days prior written notice of such change. Partner further represents that, to the extent it displays its own or other third party listings on the Partner Network in addition to the Paid Listings, if any such listing is duplicative with any Paid Listing, Partner 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 Partner sorts, ranks and delivers listings on the Partner Network based on CPC amounts, a) Partner 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) Partner 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. Partner agrees to provide Advertise.com with an automated, regularly updated mechanism from which Advertise.com can determine the bid prices (CPC paid to partner) of the top 5 listings advertisements sent to Partner Network for individual and specific queries from Partner. For example, Partner 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 Partner ad calls/requests to be directed to certain of its servers, and Partner shall follow such designations as they are provided to Partner.
6. Traffic Volume and Increases. Partner will provide Advertise.com with 3 days prior written notice before launching with new affiliates or traffic sources that will, in Partner’s reasonable opinion, increase the number of Partner 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 Partner block distribution of Paid Listings to a specified list of sources (keywords, portions of Partner Network, 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 Partner for it to block specific Paid Listings for display to specific domains. Once Advertise.com makes this request, Advertise.com is not obligated to pay Partner for any clicks from such domain(s). If Partner 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 Partner 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 Partner 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 partners or sources from time to time, in its sole discretion. All sources contained within the list must be blocked from distribution by Partner 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 Partner for qualified Clicks on Paid Listings after Advertise.com makes the relevant request to block distribution.
Service Levels
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 Partner shall consist of a feed of Paid Listings as defined in the Agreement.
Partner Implementation Guide. Following the execution of this Agreement, Advertise.com will provide Partner with a partner 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 Partner to assist in the effective integration of the Service onto the Partner’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 partners 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 Partner 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.
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