PUBLISHERS TERMS AND CONDITIONS
Last Modified: May 22, 2018
IF YOU RESIDE OUTSIDE THE EUROPEAN ECONOMIC AREA AND/OR ARE NOT SUBJECT TO THE PROTECTIONS OF THE EU GENERAL DATA PROTECTION REGULATION 2016/679 (“GDPR”), THEN 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. By continuing to access or use the Advertise.com Program, website or related services after we have added a modification in the Publisher Terms and Conditions located on our website 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. You may also request to have any data Advertise.com may have obtained to be deleted by contacting Advertise.com’s data protection officer at Dataprotectionofficer@Advertise.Com.
EU RESIDENTS – Notwithstanding the foregoing, if you are a current resident of, or entity established in the Economic European Area, and subject to the protections of the GDPR, then you acknowledge and agree that by actively consenting to these Terms and Conditions, by clicking the “I AGREE” or “I ACCEPT” button, then you are agreeing to be bound by the terms and conditions of this Agreement. If we modify the Agreement, we will provide notice to you on the Advertise.com website and you must consent to the changes to continue using the Advertise.com website and/or related services. If you accept or agree to this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to this Agreement and, in such event, “you” and “your” will refer and apply to that company or other legal entity. If you do not actively agree to this agreement, then you have no right to access, participate in the Program, or use the Advertise.com website or related services.
The parties wish to provide for a license to Publisher to display Advertise.com’s Ad Products in connection with the Publisher Network and Publisher Product, with Ad Products 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. Therefore, for good and adequate consideration, the receipt of which is acknowledged, the parties agree as follows:
2.1 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.
2.2 “Ad Product” means Advertise.com’s Paid Listings and advertising products, including but not limited to its Native, InText, InterYield, XML Feed, Push Notification, and Banner Advertisement products.
2.3 “Publisher Network” means web sites which are owned or operated by Publisher or are contractually part of Publisher’s syndication network.
2.4 “Publisher Product” means programs and/or applications which are owned or operated by Publisher.
2.5 “Paid Listings” means an Advertise.com 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.
2.6 “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.
3.1 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 Ad Products via its Publisher Product and/or Publisher Network, and to allow third parties who operate sites on the Publisher Network to publicly display, Ad Products in electronic form on the Publisher Network. Publisher and third parties who operate sites with the Publisher Network may not display any Ad Products s via any of the following distribution sources; e-mail, pop-ups, pop-unders or adware without Advertise.com’s prior written, signed consent.
3.2 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 Ad Product 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 14.3 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 Ad Products; (ii) Publisher will not modify, add to, edit or delete the URLs, titles or reviews contained within any Ad Products without Advertise.com’s prior written approval; (iii) Publisher will not display, sublicense or syndicate Ad Products 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 Ad Products 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 Ad Products on any adult-oriented web sites without the prior written approval of Advertise.com; (vi) Publisher will not display any Ad Products 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 Ad Products, or allow any third parties to display any Ad Products, 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.
3.3 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
* HACKING /PHREAKING OR ANY OTHER SITE INVADING THE RIGHTS OF
* ANY MATERIAL WHICH IS THREATENING, ABUSIVE, HATEFUL, DEFAMATORY,
LIBELOUS, SLANDEROUS, OR INJURIOUS TO THE REPUTATION OF ANY INDIVIDUAL OR
* 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.
3.5 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.
3.6 Display of Ads on Publisher Network. The license granted above is conditioned on Publisher’s, and sites in the Publisher Network’s agreeing and acknowledging that by placing an Advertise.com ad tag on any webpage, Publisher agrees that Advertise.com may at its sole discretion gather, collect, or use any and all content, code, HTML and any other information contained on the page, or through the page, to better target ads on its network. This includes all data based on End Users’ previous or current behavior and website interactions. Publisher also agrees to permit Advertise.com to deliver a cookie that does not contain personally identifiable information (PII) to any Publisher end user.
The license granted above is also conditioned on Publisher’s, and sites in the Publisher Network’s, observance of the following: if Publisher allows any third party to display Ad Products, 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 Ad Products 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.
- DATA PRIVACY
4.2 Data Communications Security. Publisher acknowledges and agrees email communications are generally not an encrypted form of communication, and Advertise.com shall not be responsible for any interception of Data by third parties, that is sent to Advertise.com by way of email or other form of unencrypted electronic communication.
4.3 Cooperation for Regulatory Compliance. Publisher shall provide reasonable assistance to Advertise.com immediately upon request to enable Advertise.com to respond to requests from data subject(s) seeking to exercise their rights under GDPR, or similar applicable data protection laws, rules, or regulations.
4.4 Prohibited Data. In no event shall Publisher send Advertise.com any data that is generally considered highly sensitive or falls under the “special categories of personal data” under the GDPR. This includes, but is not limited to, personal data revealing racial or ethnic origin, religious beliefs, genetic data, data concerning a person’s health, a person’s sexual orientation, trade union membership, or biometric data.
- PUSH NOTIFICATION CAMPAIGNS
If Publisher is using Advertise.Com’s Push Notification product, Publisher hereby acknowledges and agrees that any data in connection with the product, including but not limited to, the end user opt-ins and notification subscribers, acquired from Publisher’s website(s) (“Push Notification Users”), is the sole property of, and owned solely by Advertise.Com. Publisher acknowledges and agrees Advertise.Com has the right, but not the obligation, to serve advertising to any Push Notification User, at any time, and in its sole and absolute discretion. The rights granted in this Section 5 shall survive the Term of this Agreement, indefinitely.
- PAYMENT TERMS
6.1 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.
6.2 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 6.1; provided, that Publisher acknowledges and agrees to the Query Source Identification as described in section 3.5, 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 6.1, or otherwise recoup any amounts paid to Publisher in prior months for non-qualified Clicks.
6.3 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.
6.4 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, Ad Product via any particular means, method, product, or third party distributor, and/or (3) not pay Publisher for the offending clicks.
6.5 Account Manager. Advertise.com will provide a designated account manager to Publisher.
- ADDITIONAL PUBLISHER OBLIGATIONS
7.1 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.
7.2 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.
- 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.
- INTELLECTUAL PROPERTY OWNERSHIP
10.1 Proprietary Rights of Advertise.com. Advertise.com will retain all right, title and interest in and to the Ad Products, 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).
10.2 Proprietary Rights of Publisher. Other than the Ad Products, 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).
- NON CIRCUMVENTION
11.1 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 Ad Products or any other materials provided by Advertise.com in connection with this Agreement. Publisher shall not use the Ad Products, any services of the Ad Products, or any technology learned from the relationship covered in this Agreement to build (i) a service that competes with the Ad Products; (ii) assist any other person or company to compete with the Ad Products; or (iii) in any other way compete with the Ad Products. 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.
- TERM AND TERMINATION
12.1 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.
12.2 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
12.3 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, Ad Products, 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 Ad Products.
12.4 Survival. The provisions of sections 2 and 10-16 (inclusive) will survive any termination or expiration of this Agreement.
13.1 “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.
13.2 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.
- REPRESENTATION, WARRANTY, AND INDEMNITY
14.1 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 Ad Products 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.
14.2 Publisher’s Representations and Warranties. Publisher represents and warrants that: (i) the information provided to Advertise.com in any registration forms and otherwise is accurate and complete; (ii) it will at all times fully comply with all terms, conditions, and covenants set forth in this Agreement; (iii) it owns without restriction, or has obtained license rights, to all content, including without limitation, text, images, and video, published on sites in the publisher Network and all material in the Publisher Product(s); (iv) sites in the Publisher Network and the Publisher Product(s) do not infringe any third party Intellectual Property Rights, publicity or privacy rights; (v) it will not, nor will it authorize a third party to, use robots or other automated query tools or computer generated search requests, unless authorized by Advertise.com, (vi) all Email Campaigns will comply with the Advertise.com Email Publishers Terms & Conditions as provided below, (vii) it will comply with all applicable laws, rules, and regulations, including, but not limited to, GDPR, (viii) it will fully comply with the terms set forth in the Addendum.
14.3 Indemnification. Publisher will indemnify, defend and hold harmless Advertise.com, 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, any attorney’s fees and all expenses of any kind) arising from Publisher’s (1) breach of any term, warranty, representation or covenant in this Agreement, and (2) Publisher’s breach of any term in the Addendum. Advertise.com may have its own counsel in attendance at all proceedings and substantive negotiations relating to such claim at the Advertise.com’s sole cost and expense. Publisher shall not settle any third party claim in a manner detrimental to Advertise.com without the written consent of Advertise.com, not to be unreasonably withheld or delayed.
14.4 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 CONTRARY 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.
- LIMITATION OF LIABILITY
15.1 EXCLUSION OF DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER ADVERTISE.COM NOR ITS AFFILIATES, AGENTS, 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.
15.2 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.
16.1 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.
16.2 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 arbitrate exclusively in Los Angeles, California for all actions arising out of or related to this Agreement. The parties hereby agree to waive their right to a jury trial.
16.3 Arbitration. Any dispute arising out of or related to this Agreement shall be resolved by arbitration before a single arbitrator. Arbitration shall be conducted in accordance with California Code of Civil Procedure section 1280 et. seq. All arbitration-related hearings shall be conducted in Los Angeles, CA before ADR Services, Inc. The arbitrator shall be from the Southern California area and the arbitrator will be selected by the mutual agreement of the parties. If the parties cannot agree on a single arbitrator, then the arbitrator shall be selected in accordance with the then in effect rules of ADR Services, Inc. Once selected, the Arbitrator shall be empowered to hear and resolve any and all issues related to, arising from, based upon or in any way related to the dispute, whether based in law or equity. The Arbitrator shall issue rulings, decisions, orders, judgments and permanent injunctions as applicable and appropriate. The prevailing party in said arbitration shall be awarded, Attorney’s fees and costs as well of the costs of the arbitrator. If a party files a motion or petition to compel arbitration, then the prevailing party in said motion or petition shall be awarded interim attorney’s fees and costs related to the motion or petition.
16.4 Notices. Any notice or other communication to be given here under 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.
16.5 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.
16.6 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.
16.7 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.
16.8 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.
16.9 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.(SHOULD THIS BE HERE BECAUSE THIS IS NOT A PAPER AGREEMENT)
16.10 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 1-2 apply to the distribution of Paid Listings via the Publisher Network and Publisher Product.
- 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.
- 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.
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 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 Publisher Privacy and Data Protection Addendum
This Publisher Privacy and Data Protection Addendum (“Addendum“) forms part of the Advertise.com Publisher Terms and Conditions, or any other written Agreement between the Parties (“Principal Agreement“), between: publisher (“Publisher“) acting on your own behalf and as agent for each Publisher Affiliate; and (ii) Advertise.com, Inc. (“Company“). Except as modified below, the terms of the Principal Agreement shall remain in full force and effect.
Whereas, Publisher collects, stores, and transfers Personal Data (defined below), and the Parties desire to set forth their respective obligations regarding the European Union General Data Protection Regulation 2016/679 (“GDPR”), both Parties agree to the following provisions:
In consideration of the mutual obligations between Company and Publisher regarding GDPR, which creates various data privacy and protection obligations on entities’ handling of Personal Data, the Parties hereby agree that the terms and conditions set out below shall be added as an Addendum to the Principal Agreement.
In this Addendum, the following terms shall have the meanings set out below:
- “Affiliate Publisher Websites” means any third party entity (including any Publisher Affiliate) appointed by or on behalf of Publisher or any Publisher Affiliate, to process Personal Data on behalf of Company in connection with the Principal Agreement; and
- “Applicable Laws” means (a) European Union or Member State laws with respect to any Personal Data in respect of which Publisher and Company are subject to EU Data Protection Laws; and (b) any other applicable law with respect to any Personal Data in respect of which any Company Group Member is subject to any other Data Protection Laws;
- “Controller” means the entity which, alone or jointly with others, determines the purposes and means of the processing of Personal Data, as defined in GDPR.
- “Data Protection Laws” means EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country;
- “Data Subject” means an individual who is the subject of Personal Data.
- “EU Data Protection Laws” means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR.
- “Personal Data” means means any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person;
- “Processor” means Company.
- “Publisher Affiliate” means an entity that owns or controls, is owned or controlled by or is or under common control or ownership with Vendor, where control is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise.
- “Publisher Websites” means any website or property owned or licensed by Publisher, which is subject to the provisions of the Principal Agreement.
Cooperation for Regulatory Compliance. Publisher shall provide reasonable assistance to Company immediately upon request to enable Company to respond to requests from Data Subject(s) seeking to exercise their rights under GDPR, or similar applicable data protection laws, rules, or regulations.
Prohibited Data. In no event shall Publisher send Company any data that is generally considered highly sensitive or falls under the “special categories of personal data” under the GDPR. This includes, but is not limited to, personal data revealing racial or ethnic origin, religious beliefs, genetic data, data concerning a person’s health, a person’s sexual orientation, trade union membership, or biometric data.
Publisher’s Separate Controller Status. Publisher hereby acknowledges and agrees it is the Controller of the Personal Data it sends to Company for the provision of Company’s services. Publisher is solely responsible for complying with Controller’s obligations under GDPR. In no event shall Publisher and Company be considered joint Controllers in regards to Personal Data that is sent to Company as part of its services.
Protection of Personal Data. Publisher shall comply with all applicable Data Protection Laws. Publisher represents and warrants that Publisher and Publisher Affiliates are fully compliant with all applicable Data Protection Laws.
Security. Publisher represents and warrants it has implemented appropriate technical and organizational measures to ensure a level of security appropriate to comply with, and maintain compliance with, Data Protection Laws.
Data Breach Obligation. Publisher shall notify Company within twenty-four (24) hours Publisher or any Publisher Affiliate becoming aware of a data breach affecting Personal Data, and provide Company with sufficient information to allow Company to meet any obligations to report or inform Data Subjects of the Personal Data breach under the Data Protection Laws:
At a minimum, the notification shall provide each of the following:
- Describe the nature of the personal data breach, the categories and numbers of Data Subjects concerned, and the categories and numbers of personal data records concerned;
- Communicate the name and contact details of Publisher’s data protection officer or other relevant contact from whom more information may be obtained;
- Describe the likely consequences of the personal data breach; and
- Describe the measures taken or proposed to be taken to address the Personal Data breach; and
- Describe the measures taken or proposed to be taken to address the Personal Data breach, including, where appropriate, measures to mitigate its possible adverse effects.
- Publisher shall co-operate with Company and take such reasonable commercial steps as are directed by Company to assist in the investigation, mitigation and remediation of each such Personal Data breach.