The
following terms and conditions, together with the Epicenter Network, Inc.
Privacy Policy ("Privacy Policy") and any and all Acceptable Use
Policies referenced herein ("AUPs"), constitute the binding legal
agreement (this "Agreement") by and between Epicenter Network, Inc.
("Company") and you (“Publisher,” "You" or
"Your"), the user of both the Epicenter Network, Inc. website (the
"Website") and the Epicenter Network, Inc. advertising network
service (the "Service"). You and Company may also be individually
referred to herein as a "Party" and collectively as
"Parties." Any reference to You herein means You and/or the company
or entity registering with Epicenter Network, Inc. and, without limitation, any
parent entities, owners, subsidiaries, affiliates, predecessor or successor
entities, and any agents, officers, directors and/or employees acting on behalf
of same. You agree to use the Website, the Service and any additional products
and/or services offered by Company in the future only in accordance with the
Agreement. Company reserves the right to make changes to the Website, the
Service and the terms and conditions of the Agreement at any time. The latest
Agreement will be posted on the Website. Your continued use of the Website
and/or the Service after any such modification and notification thereof shall
constitute Your consent to such modification. Therefore, You should regularly
check the Website for updates and/or changes. If You do not agree to the terms
and conditions contained within the Agreement in their entirety, You are not
authorized to register as a Publisher, or use the Service and/or Website in any
manner or form whatsoever.
1.
Background and Use of the Website and the Service.
Company posts offers ("Offers") and associated creative
("Creative") in connection with various advertising programs
("Program(s)") sponsored by Company or its third party advertising
clients ("Advertisers") by and through Company's proprietary network.
Once approved, Publisher shall be permitted to download the Creative: (i) for
publication on any website(s) affiliated with, owned by, operated by and/or
controlled by Publisher (collectively, "Publisher Websites"); or (ii)
for distribution in email messages ("Publisher E-mails") sent to
those e-mail addresses listed in any database affiliated with, owned by,
operated by and/or controlled by Publisher (collectively, "Publisher
Databases"). No scripts, images, graphics, links, copy or processes for
generating Events (as defined below), other than the Creative may be used by
Publisher without first obtaining the prior express written permission of Company.
Publisher may not edit or modify the Creative in any way without Company’s
prior written approval. In the event that Company desires to cancel the use of
any Creative, Publisher shall cease the use of same no more than forty-eight
(48) business hours following Company’s request. Publisher understands and
agrees that Company is the sole owner of any and all intellectual property
rights associated with the Creative. The Programs will specify the amount and
terms under which You will receive payment ("Bounty") when the
Program's requirements are fulfilled. Bounties are generated from specified
events (each, an "Event") that include, without limitation, clicks,
click-throughs, sales, registrations, impressions and leads. The definition of
the Event associated with each Program shall be set forth in the applicable
Program's specifications. If You accept a Program, You agree to place that
Program's Creative on Your Publisher Websites and/or in Your Publisher E-mails,
in accordance with the terms of the Agreement and the accepted Program. Company
may change a Program at any time upon prior notice to You, unless otherwise
specified in the Program terms. Similarly, You may cease participation in
previously accepted Programs at any time upon prior notice to Company, unless otherwise
specified in the Program terms. Company is responsible for displaying and
administrating all active Programs and tracking associated Bounties owed to You
via the Website Data (as defined below) Company shall compile, calculate and
electronically deliver data necessary to determine Your billing and
compensation. Company's figures and calculations regarding Events, Bounties and
any compensation due to You shall be final and binding. Any questions regarding
the data provided by Company need to be submitted to Company in writing within
fourteen (14) days of Your receipt of the applicable payments/invoices.
Otherwise, such information will be deemed accurate and accepted by You.
2.
License.
You must obtain official approval from Company before You may become a
Publisher. Company may reject Your Publisher application and/or terminate Your
participation in any Program at any time and for any reason, in Company's sole
discretion. You shall, upon Company's request, provide Company with a list of
Publisher Websites and Publisher Databases. Only Publisher Websites and
Publisher Databases that have been reviewed and approved by Company may be
utilized in connection with Your participation in the Programs. Company
reserves the right to withhold or refuse approval of any Publisher Websites
and/or Publisher Databases for any reason whatsoever, in Company's sole
discretion, even where Company has previously approved such Publisher Websites
and/or Publisher Databases, as applicable.
In
order to be eligible to become a Publisher, and in order to maintain an active
Publisher status, Your Publisher Websites, Publisher Databases and/or Publisher
E-mails must meet the following criteria:
- Your Publisher
Websites must contain distinct and legitimate content, substance and material,
not simply a list of links or advertisements. Further, Your Publisher
Website(s) must serve a purpose substantially or completely separate and
distinct from merely being designed to earn money solely from Company's
Advertisers or third party advertisers;
- Your Publisher
Websites and Publisher E-mails must each be represented by a legitimate
second-level domain name (e.g. yoursite.com is acceptable; however, a
shared server, e.g., sharedsite.com/yoursite, is not acceptable);
- Your Publisher
Websites cannot be offered as a part of a community-based website personal
entry or personal page;
- Your Publisher
Websites and Publisher E-mails may not incentivize users to click on ads.
Incentives include, but are not limited to, awarding users cash, points,
prizes, contest entries, etc.;
- Your Publisher
Websites must be fully functional at all levels; no "under
construction" websites or sections are permissible; and
- Spawning process
pop-ups and exit pop-ups may not be activated through Your Publisher
Websites and/or Publisher E-mails.
The content of Your
Publisher Websites and Publisher E-mails must not promote, advocate,
facilitate, link to or otherwise include any of the following:
- Racial, ethnic,
political, hate-mongering or otherwise objectionable content;
- Investment,
money-making opportunities or advice not permitted under foreign, federal
or state law;
- Violence or
profanity;
- Pornographic,
obscene, sexually explicit or related content;
- Material that
defames, abuses, is libelous, is tortious or threatens physical harm to
others;
- Material that
displays any telephone numbers, street addresses, last names, URLs, e-mail
addresses or any confidential information of any third person;
- Material that
impersonates any person or entity;
- Any indication
that any statements You make are endorsed by Company or an Advertiser,
without Company's specific prior written consent;
- Illegal
substances or activities (e.g., illegal narcotics, how to build a bomb,
counterfeiting money, etc.);
- Material that
discriminates on the basis of race, ethnicity, gender, age, disability,
religion or sexual orientation;
- Content which is
inappropriate or harmful to children;
- Terrorism or
terrorist-related activities, sedition or similar activities;
- Software
Pirating (e.g., warez, hotline);
- Hacking or
Phreaking;
- Any material
that contains software viruses or any other computer code, files or
programs designed to interrupt, destroy or limit the functionality of any
computer software or hardware or telecommunications equipment;
- Any software,
product or service that is illegal or that violates the rights of a third
party including, but not limited to, spyware, adware, programs designed to
send unsolicited advertisements (i.e. "spamware"), services that
send unsolicited advertisements, programs designed to initiate
"denial of service" attacks, mail bomb programs and programs
designed to gain unauthorized access to networks on the Internet;
- Any software,
product or service that harvests or collects the personal information of
Internet users, whether or not for commercial purposes, without the
express consent of such users;
- Any spoofing,
redirecting or trafficking from other websites in an effort to gain
traffic;
- Any content that
infringes upon the intellectual property rights of any third party;
- Any material
that otherwise infringes upon the rights of any third parties including,
without limitation, false advertising, unfair competition, invasion of
rights of publicity or privacy, violation of any anti-discriminatory law
or regulation, or any other right of any person or entity;
- Gambling,
contests, lotteries, raffles, or sweepstakes;
- Any material
that violates the CAN-SPAM Act of 2003, as amended ("CAN-SPAM");
or
- Any illegal
activity whatsoever (including any violations of applicable U.S. state or
federal law, rule or regulation, Canadian provincial or federal law, EU
directives and regulations and/or the laws of any foreign jurisdiction in
which You operate).
Upon
approval of Your Publisher application, Company grants to You a
non-transferable, non-exclusive, limited license to use the Website, Service,
Creative, Offers, Website Data and any data, reports, information and/or
analyses arising out of such use that Company makes available to You, as well
as the associated applications, data, methods of doing business and/or any
elements thereof (collectively, "Company Intellectual Property")
subject to the terms and conditions set forth herein. You acknowledge and agree
that You do not have, nor will You claim any right, title or interest in, or to,
the Company Intellectual Property. You may only access the Website via web
browser, email or in a manner otherwise approved by Company. No part of the
Company Intellectual Property may be reproduced in any form or incorporated
into any information retrieval system, electronic or mechanical. You may not
use, copy, emulate, clone, rent, lease, sell, modify, decompile, disassemble,
reverse engineer or transfer the Company Intellectual Property or any portion
thereof. Systematic retrieval of material from the Website and/or Service by
automated means or any other form of scraping or data extraction in order to
create or compile, directly or indirectly, a collection, compilation, database
or directory without written permission from Company is prohibited. Company
reserves any rights not explicitly granted in the Agreement. You may not use
any device, software or routine to interfere or attempt to interfere with the
proper working of the Website. You may not take any action that imposes an
unreasonable or disproportionately large load on the Service and/or Website
infrastructure. Your right to use the Company Intellectual Property is not
transferable. Publishers that display Creative on their Publisher Websites
shall allow Company to disclose the Publisher Website URLs and Publisher logos
in any marketing materials and/or press releases created by Company.
3.
Fraud.
Company actively monitors traffic, Events, Bounties and other Program-related
activities for fraud. If Company suspects that Your account has been used in a
fraudulent manner, Your account will be deactivated effective immediately and
with no notice to You pending further investigation.
You
will place, deliver and/or otherwise use Offers and/or Creative only with the
intention of delivering valid Events for the benefit of the applicable
Advertiser as determined by Company and the applicable Advertiser. You may not,
nor knowingly permit any person to, activate Creative or inflate the amount of
leads, clicks or other Events through any deceptive or misleading practice,
method or technology including, but not limited to, the use of any spyware,
device, program, robot, Iframes, hidden frames, redirects, spiders, computer
script or other automated, artificial or fraudulent methods designed to appear
like an individual, real live person performing an Event. You may not establish
or cause to be established any promotion that provides any sweepstakes entries,
rewards, points, incentives or other compensation to be earned in connection
with generating Events, or otherwise attempt to induce Internet users to click
on any of the Creative through use of any other incentives, without obtaining
the prior written approval of Company.
If
You fraudulently add leads, clicks or other Events through the use of
fraudulent means of traffic generation (as determined solely by Company), You
will forfeit Your entire Bounty-related commissions for all Programs, not just
those commissions associated with the fraudulent activity, and Your account will
be terminated effective immediately. Company reserves sole judgment in
determining fraud, and You agree to be bound these determinations.
Where
Company brings instances of suspected fraud to Publisher’s attention, it is the
OBLIGATION of Publisher to prove to Company that it has NOT engaged in fraud.
Company will hold Publisher’s Bounty-related payments in 'Pending Status' until
Publisher has satisfactorily provided evidence that Publisher has not engaged
in fraud. Company uses a variety of methods to flag accounts for possible
fraud, including accounts that:
- Record
click-through rates that are much higher than industry averages and where
solid justification is not evident;
- Have Publisher
Websites which contain ONLY click programs generating clicks with no
indication, based upon website traffic statistics, that such Publisher
Websites can account for the clicks reported;
- Have generated
fraudulent leads or other Events, as determined by Company or its Advertisers;
and
- Use fake
redirects, automated software and/or other fraudulent means to generate
clicks or leads from Programs.
During
the term of the Agreement, and for a period of six (6) months thereafter,
Company shall have the right to inspect and audit Publisher’s books and records
relating to Publisher’s use, possession and distribution of the Creative,
Offers, Service, Company Intellectual Property and Customer Information (as
defined below), as applicable, upon five (5) days’ prior written notice, for
the purpose of determining compliance with the Agreement. Company’s duly
authorized representatives shall have access at all reasonable times to all of
Publisher’s personnel, accounts and records that may be needed to verify and
audit all of the aforementioned issues. If any such audit or inspection
discloses material misuse of the Creative, Offers, Service, Company
Intellectual Property and/or Customer Information, as applicable, Publisher
shall pay for the cost of such audit and Company shall be entitled to: (a)
terminate Your Publisher account; and (b) pursue any and all other remedies
that Company may have at law or in equity.
4.
Use of Downloadable Software
Downloadable
Software must receive approval by Company prior to use. Downloadable Software may
only be utilized by You if its use complies with Company’s AUP for Downloadable
Software, available below:
The following Acceptable Use Policy ("AUP"),
our Publisher Terms and Conditions (the "Terms and Conditions"), the Email
AUP and AUP, each of which is expressly incorporated herein by reference
(collectively, the "Agreement"), is the binding legal agreement
between Epicenter Network, Inc. ("Company") and you ("You"
or "Your"), the user of Company's website (the "Site"). You
agree to use the Site, the Company’s advertising network service (“Service”)
and any additional products and/or services offered by Company in the future
only in accordance with the Agreement. Notwithstanding the foregoing, this AUP
is not an exhaustive recitation of all rules, regulations, standards and legal
requirements governing Your conduct: (i) as an Publisher (as that term is
defined herein below) of Company; and/or (ii) in connection with Your use of
Downloadable Software under the Agreement. Company reserves the right to make
changes to the Site, the Service and/or the terms and conditions of the
Agreement at any time. The latest Agreement will be posted on the Site. Your
continued use of the Site and/or Service after any such modification and posted
notification thereof shall constitute Your consent to such modification.
Therefore, You should regularly check the Site for any updates and/or changes.
The Agreement applies to and governs Your relationship with the Company in all
matters including, without limitation, as an Publisher Partner of our Service
(“Publisher”). For purposes of the Agreement, “Publisher” means the company or
entity registering with Company as a Service Publisher and, without limitation,
any parent entities, owners, subsidiaries, publishers, predecessor or successor
entities, and any agents, officers, directors or employees acting on behalf of
same. If You do not agree to the terms and conditions contained within the
Agreement in their entirety, You are not authorized to register as an
Publisher, use the Service and/or Site in any manner or form whatsoever. Any
capitalized terms not defined herein shall have the same meaning as set forth
in the Terms and Conditions.
Use of Downloadable Software
The Creative and Offers made available in connection
with the Service Programs are generally intended for placement on the Publisher
Website and in the Publisher E-mails, not in downloadable software programs,
also called adware, pop-up/pop-under technologies, plug-ins, as well as other
designations (“Downloadable Software”). However, where Company and the
applicable Advertiser each provides express written authorization, Company will
allow such Programs to be included in/with Downloadable Software that meets
with the requirements of all applicable federal, state and local rules,
regulations, statutes, court orders and decrees, as well as the most stringent
industry standards, as determined in the joint discretion of Company and the
applicable Advertiser. Prior to Publisher’s coupling any Program(s) with any
Downloadable Software, Company and the applicable Advertiser must first approve
such Downloadable Software as evidenced by Company counter-signing that copy of
the Company Downloadable Software Agreement (“DS Agreement”) as previously
signed and submitted by Publisher covering the subject Downloadable Software;
provided, however, that any such DS Agreement shall only permit use of the
Downloadable Software with those designated Programs as specifically set forth
in the DS Agreement. No other Downloadable Software shall be permitted, nor may
Publisher use the approved Downloadable Software in connection with any other
Program without prior authorization. Company and/or the applicable Advertiser
may reject Your request to use Downloadable Software in connection with any
Program and/or terminate Your use of authorized Downloadable Software at any
time and for any reason, in the joint discretion of Company and the applicable
Advertiser. As referenced herein and throughout the Agreement, the terms
“reasonable” and “unreasonable” shall be judgments made by Company and, where
applicable, Advertiser, and no other party. Company and, where applicable,
Advertiser, reserve the right, completely, jointly and exclusively, to
establish the test for reasonability with regards to any conditions as set
forth herein.
Without limitation, the conditions set forth herein
shall apply equally to You, as well as to any of Your publishers, partners,
distributors or other third parties with whom you do business while governed by
the Agreement (collectively, “Publisher Third Parties”). All Publisher Third
Parties must be approved by Company prior to their assisting You in connection
with any Program governed by the Agreement. You are responsible for ensuring
that any and all such Publisher Third Parties agree, in writing, to terms and
conditions no less restrictive than those contained herein, and You must submit
all such written representations to Company prior to working with such
Publisher Third Parties in connection with any Program. Company reserves the
right to reject Your request to work with any Publisher Third Parties and may
restrict Your right to use any previously approved Publisher Third Parties at
any time and for any reason. If at any time during the term of the Agreement
You would like to contract with or otherwise utilize an Publisher Third Party
not previously authorized by Company, you must provide Company with prior
notice, submit the applicable written representation that such Publisher Third
Party has agreed to the terms and conditions of the Agreement and await
Company’s express written approval of such Publisher Third Party prior to
proceeding.
All Downloadable Software must, at a minimum, satisfy
the following conditions, as determined by Company and, where applicable, Advertiser,
in their joint and exclusive discretion:
1. Informed User Consent.
Downloadable Software must not be installed on a user’s computer without first
obtaining the user’s informed consent. Obtaining informed consent requires
first giving users clear, concise, accurate information and notice about the
material consequences of the programs that they are about to install in plain
language including, without limitation: (i) a comprehensive license presented
in full; (ii) the Downloadable Software vendor’s legal name, mailing address,
phone number and place of incorporation (if any); (iii) a statement of effect
of installation including, without limitation, any changes made to computer
settings such as home page, connection provider, proxy, bookmarks, etc.; (iv) a
statement of the information tracked, transmitted and/or collected, if any; (v)
full-size examples of advertisements that they may receive as a result of
downloading the Downloadable Software, if any; and (vi) disclosures of the
frequency of advertisement display, as applicable. Such information and notice
provided to the user must: (i) appear in a conspicuous manner, clearly
distinguished from other on-screen text; (ii) remain on screen until the user
grants or denies consent; and (iii) provide an option for providing additional
explanation about the type of information to be collected, if any, and the
purpose of such collection. The plain language used in the notice shall not be
indirect or euphemistic. For example, without limitation: (i) if a program will
show pop-up advertisements, proper notice and informed consent generally
require use of the phrase “This program will show pop-up advertisements”; (ii)
if a program will gather and transmit information about the user, the notice
should read “This program will collect and transmit information about you”; or
(iii) if the program uses information collected to target advertising to the
user, the notice should read, “This program will collect information about Web
pages that you access and will use that information to display advertising on
your computer.” Obtaining informed consent also requires a clear, unambiguous
and affirmative manifestation of consent (for example: requiring a user to
press an appropriate affirmative button such as “I agree” and not merely
pressing “Next” or accepting a pre-checked box). There must be a separate
manifestation of consent for each item of Downloadable Software loaded on to
the user’s computer, and Publisher is prohibited from downloading a bundle of
programs after receiving only one indication of consent. Without limitation, an
ActiveX installation prompt (with nothing more) is not deemed to have obtained
informed consent.
2. Control Over the Distribution Process.
The Downloadable Software installation directions and procedures must comply
with the requirements set forth in this AUP. You, as an Publisher, must require
that all distributors of the applicable Downloadable Software comply with these
rules. One method of establishing and maintaining such distributor compliance
is to mandate in Your agreements with distributors that they comply with the
provisions set forth in this AUP and that each such distributor has established
and maintained a record of effective AUP compliance, yielding no substantial
violations related to the applicable Downloadable Software for a period of at
least six (6) months or more.
3. Consistency of the Offer.
Ongoing and continuing use of Downloadable Software must not surprise users
with notices, disclosures or behaviors inconsistent with the applicable
Downloadable Software’s initial solicitation, disclosures and notices. For
example, if the applicable Downloadable Software’s initial solicitation
described the underlying software program as offering “free smileys,” the
applicable program cannot later add the requirement that users also accept
pop-up advertisements.
4. Appropriateness of the Offer.
Downloadable Software must not solicit users via improper channels. Without
limitation, solicitation on websites that are substantially intended for
viewing by children is considered inappropriate and prohibited by Company and
this AUP. Children’s websites may be identified via website language and/or
formatting, common sense and/or factors established in Federal Trade Commission
regulations including, but not limited to, the Children’s Online Privacy
Protection Act (“COPPA”). Company expressly reserves the right to make the
final determination as to the character and intended audience of any and all
websites. Without limitation, solicitations substantially catering to children
(e.g., cartoons, dolls, child-oriented games, etc.) are not appropriate.
Without limitation, solicitations are not appropriate at any website not
satisfying the requirements of Section 2 of the Terms and Conditions.
5. Fair Value to Users.
Downloadable Software must offer users a genuine, substantial benefit in
exchange for the consideration represented by accepting the underlying
advertisements (the “Benefit”). If the Downloadable Software merely shows
advertisements, without offering anything substantial in return (no Benefit),
it is unlikely that the underlying software program offers users a fair value.
If the underlying software program’s claimed Benefit is otherwise generally
available elsewhere at no cost, the program is unlikely to offer users a fair
value. If the underlying software program’s claimed Benefit is a mere trinket
or triviality, the program is unlikely to offer users a fair value. If a
program’s advertisements appear whenever a user uses his computer, or whenever
a user uses his web browser, even if the user never makes use of the program’s
Benefit, then the program may not offer users a fair value. Company reserves
the right to determine, in its sole discretion, if the Downloadable Software’s
claimed Benefit represents a fair value to users.
6. Transparency in Operation.
Users must easily be able to identify and understand the nature of the
Downloadable Software’s effects both prior to, and after, installation. If the
Downloadable Software displays advertisements outside of its program window,
each such advertisement must be labeled with the Downloadable Software program
name. Each such advertisement must include a link, button or other mechanism
whereby a user can learn more about: (i) the Downloadable Software presenting
said advertisement; (ii) the specific manner in which the Downloadable Software
was installed (including what offer is associated with that Downloadable
Software); (iii) the specific date and time that the Downloadable Software was
installed; and (iv) how the Downloadable Software can be removed (including a
removal feature requiring not more than two (2) additional clicks). Without
limiting the generality of the foregoing, the Downloadable Software and
associated information, disclosures and notice, must not: (i) falsely claim
that the Downloadable Software will be disabled by the user's actions; (ii)
remove or disable security software; or (iii) take control of the computer (by
accruing dial-up charges, or by opening a series of advertisements that can
only be stopped by turning off the computer).
7. Advertising Frequency and Intrusiveness.
Downloadable Software must not show advertisements that are unreasonably
frequent or unreasonably intrusive. Company reserves the right to determine, in
its sole discretion, if the Downloadable Software’s advertising frequency
and/or intrusiveness is reasonable.
8. Advertising Placement.
Each advertisement shown via the Downloadable Software must appear entirely
on-screen, with no portion of its body or title bar off-screen. Each
advertisement shown via the Downloadable Software must be reasonable in size,
and may not unreasonably cover (or reduce the visible area of) any underlying
web page that a user had requested. An advertisement shown via the Downloadable
Software may not wholly replace, or redirect a user away from, the page or
website that the user had requested. Advertisements triggered in response to
the user’s attempt to access a specific web address or search of a trademark
are strictly prohibited absent the express consent of the applicable website
and/or trademark owner, as applicable.
9. Advertising Dismissal.
Each advertisement shown via the Downloadable Software must be closable by a
user using ordinary operating system functions. Without limitation, on standard
Windows operating PCs, freestanding advertising windows (“pop-up” and
“pop-under”) must be closable by clicking the upper-right hand corner “X,” the
upper-left hand corner “Control Menu,” the Alt-F4 key, right-clicking on the
applicable advertisement’s title bar (and choosing “Close”) and/or right
clicking a Taskbar entry (and choosing “Close”). This ability to close such
advertisements must be accompanied by an option to facilitate the removal of
the Downloadable Software itself at each instance of advertisement
presentation.
10. Legitimate Advertising Formats.
Downloadable Software must not display advertising in illegitimate formats,
outside of ordinary commercial norms. Without limitation, each of the following
advertising formats requires special explicit user consent, which shall consist
of a specific question to the user, clearly articulating the specific action to
be taken and which must allow the user to grant or deny consent without any
collateral consequences: (i) placing icons on a user’s desktop or “Start Menu”
(or similar location); (ii) directly routing the user to specific websites;
and/or (iii) adding entries to a user’s “Favorites” menu (or similar location).
Downloadable Software may not be used to attack another program, to record a
user’s passwords, or to send bulk e-mail to other users.
11. Privacy Policy.
Downloadable Software must include an associated privacy policy that meets the
test of reasonable commercial best practices applicable to privacy policies.
Downloadable Software must adhere to its applicable privacy policy, in both
letter and in spirit, in all respects and with no exceptions. The subject
privacy policy must be available for viewing prior to the Downloadable Software
program’s installation procedure and thereafter, as well as from such program
vendor’s website.
12. User information and support.
The maker of the applicable Downloadable Software must maintain a website that
provides information about such program, its general purposes and effects and
how it can be removed from a user’s computer. The website must provide, at a
minimum, the vendor’s legal name, mailing address, phone number and place of
incorporation (if any). The website must include an adequate and reasonable
mechanism for users to obtain technical support for issues such as
troubleshooting and removing the Downloadable Software.
13. Removal.
A user must be able to remove Downloadable Software via the standard function
within the user’s operating system (e.g. Control Panel – Add or Remove
Programs). A removal procedure must be free of cost and may not unreasonably
hinder removal, e.g. via extended procedures, convoluted language or confusing
user interface elements or placement.
14. Appropriate Naming.
Downloadable Software must use a consistent, single, clear name. That name must
be shown in the Downloadable Software program’s initial advertising (i.e. to
recruit users), in its installation notice and consent procedures, on any
advertising and in its uninstall procedure. A Downloadable Software program may
not use multiple names within the scope of its relationship with a single user.
A Downloadable Software program may not change its name unreasonably frequently
(including, without limitation, more than once per twelve-month period). The
company responsible for producing and/or distributing the applicable
Downloadable Software may not use an unreasonably high number of product names
or brand names in its dealings with multiple users. The entity responsible for
producing and/or distributing the applicable Downloadable Software may not use
an unreasonably high number of product names or brand names to obfuscate, hide
or otherwise confuse its identity. Program names, and company names, may not be
substantially misleading, confusing, duplicative, generic or hard to locate via
a standard search (e.g. “Windows Plugin,” “Search Toolbar,” “Click Yes”).
15. Appropriate Advertisements.
Company strictly forbids the display of sexually-explicit materials via the Downloadable
Software No Downloadable Software may display content that fails to satisfy all
of the requirements of Section 2 of the Terms and Conditions.
16. Advertiser Knowledge and Consent.
The applicable Advertisers’ Creative and/or Offers should not appear in
Downloadable Software except when such Advertisers specifically approve of
those placements. Company Creative and/or Offers may not be displayed within
third-party traffic purchases from Downloadable Software (whether in the form
of pop-ups, pop-unders or via any other media).
17. Fair Value to Advertisers.
Downloadable Software must offer Advertisers a bona fide value in exchange for
Advertiser payments. Downloadable Software must generate bona fide Events on
behalf of Advertisers. Without limitation, where the applicable Event is the
generation of a lead, the Event shall not be considered a bona fide Event if it
is associated with a user: (i) already at an Advertiser website; (ii) already
at the website of an publisher of an Advertiser; or (iii) actively searching
for an Advertiser website.
18. Fair Treatment of Other Publishers.
Downloadable Software must not reduce payments paid to other Publishers of
Company. Without limitation, Downloadable Software must not interfere with a
transaction in which another Publisher is to receive payment.
19. Keeping Good Company.
Downloadable Software must not come bundled with programs that violate the
terms and conditions of the Agreement.
20. A Clear History.
The Downloadable Software, and such Downloadable Software’s vendor, must each
have a strong track record of compliance with the terms and conditions of this
AUP, as well as applicable laws, rules, regulations and industry standards
during, at a minimum, the course of the twelve (12) months preceding the
submission, by Publisher, of a DS Agreement. Without limitation, even
non-trivial violations within the preceding twelve (12) months will generally
render Downloadable Software ineligible for Program consideration. For certain
Downloadable Software and certain types of violations, prior violations may
render a the Downloadable Software ineligible for Program consideration even if
the violations occurred more than twelve (12) months in the past, as determined
in the sole discretion of Company.
21. Truthfulness.
The applicable Downloadable Software’s vendor must be clear, complete and
forthcoming in all statements to Company, its Advertisers and end users.
Company shall determine, upon Company’s initial investigation of the applicable
Downloadable Software’s installation procedure and operation, whether the
applicable Downloadable Software’s vendor is in compliance with these requirements,
and any other requirement set forth in the Agreement. If the Downloadable
Software’s operation changes (or is expected to change) in any substantial way,
including in any way that could affect compliance with any of these AUP rules,
the Downloadable Software’s vendor must notify Company at the earliest possible
opportunity. If the Downloadable Software’s vendor learns of any breach of
these AUP rules, the vendor must notify Company immediately.
5.
Use of Email for Marketing Purposes
Email
Marketing may only be utilized by You if its use complies with the Company's
AUP for Email Marketing, available below:
The following Acceptable Use Policy ("AUP"),
our Publisher Terms and Conditions (the "Terms and Conditions"), the
Adware AUP and AUP, each of which is expressly incorporated herein by reference
(collectively, the "Agreement"), is the binding legal agreement
between Epicenter Network, Inc. ("Company") and you ("You"
or "Your"), the user of Company's website (the "Site"). You
agree to use the Site, Company's advertising network service
("Service") and any additional products and/or services offered by
Company in the future only in accordance with the Agreement. Notwithstanding
the foregoing, neither this AUP, nor the Agreement, is an exhaustive recitation
of all rules, regulations, standards and legal requirements governing Your conduct:
(i) as an Publisher (as that term is defined herein below) of Company; and/or
(ii) in connection with Your use of e-mail in the promotion of any Program
under the Agreement. The Agreement states the minimum standards that You and
Your Affiliated Third Parties (as defined below) must adhere to in light of
current laws, rules and regulations governing, and industry best practices
applicable to, the transmission of commercial e-mail. In the event that any
state or federal law, rule or regulation governing the transmission of
commercial e-mail is enacted or amended setting forth standards more
restrictive than those set forth herein, the more restrictive standards
contained in such subsequently enacted or amended law, rule or regulation shall
apply to You and Your Affiliated Third Parties.
Company reserves the right to make changes to the
Site, the Service and/or the terms and conditions of the Agreement at any time.
The latest Agreement will be posted on the Site. Your continued use of the Site
and/or Service after any such modification and posted notification thereof
shall constitute Your consent to such modification. Therefore, You should
regularly check the Site for any updates and/or changes. The Agreement applies
to and governs Your relationship with the Company in all matters including,
without limitation, as a Publisher in connection with your use of the Service.
For purposes of the Agreement, "Publisher" means the individual or
entity registering with Company to use the Service as a publisher and, without
limitation, any parent entities, owners, subsidiaries, affiliates, predecessor
or successor entities, and any agents, officers, directors or employees acting
on behalf of same. If You do not agree to the terms and conditions contained
within the Agreement in their entirety, You are not authorized to register as
an Publisher, use the Service and/or Site in any manner or form whatsoever. Any
capitalized terms not defined herein shall have the same meaning as set forth
in the Terms and Conditions.
Where authorized by both Company and the applicable
Advertiser, the following terms and conditions apply to all e-mail campaigns
transmitted by Publisher on behalf of such Advertiser(s). Company will allow
Publisher E-mails and/or e-mail-based Creative to be transmitted by Publisher
in connection with any Program where such Publisher E-mails and/or e-mail-based
Creative comply with: (a) all applicable federal, state, provincial, foreign
and local laws, ordinances, rules, regulations, statutes, court orders,
judgments and decrees that govern e-mail marketing and/or communications, as
well as the most stringent email marketing industry standards including, but
not limited to, the CAN-SPAM Act of 2003 (Controlling the Assault of
Non-Solicited Pornography & Marketing Act or any successor legislation), as
amended; and (b) any and all implementing regulations promulgated by the
Federal Trade Commission. Company and, where applicable, Advertiser, reserve
the right, completely, jointly and exclusively, to establish the test for
reasonability with regards to any conditions set forth herein.
Without limitation, the conditions set forth herein
shall apply equally to You, Your parent entities, owners, subsidiaries,
predecessors and/or successor entities and any agents, officers, directors,
members and/or employees acting on behalf of You, as well as any of Your
affiliates, partners, distributors and/or other third parties with whom You do
business while governed by the Agreement (collectively, "Affiliated Third
Parties"). All Publisher's Affiliated Third Parties must be approved by
Company prior to their assisting You in connection with any Program governed by
the Agreement. Company reserves the right to reject Your request to work with
any Affiliated Third Parties and may restrict Your right to use any previously
approved Affiliated Third Parties at any time and for any reason. You are
responsible for ensuring that any and all such Affiliated Third Parties agree,
in writing, to e-mail marketing terms and conditions no less restrictive than
those contained herein, and You must submit all such written representations to
Company if requested by Company. All such agreements must contain provisions
that require Your Affiliated Third Parties to fully and completely indemnify
Company for any and all damages arising from their breach of any of the
provisions set forth herein and You must have the ability to terminate distribution
with, or procurement by, Affiliated Third Parties immediately. Notwithstanding
the foregoing, You hereby agree that You will be solely responsible to Company
for any breach of the provisions of the Agreement by Affiliated Third Parties.
All Publisher E-mails and/or e-mail-based Creative transmitted
by Publisher must, at a minimum, comply with all applicable laws relating
thereto and adhere to the following obligations, as determined by Company and,
where applicable, Advertiser, in their joint and exclusive discretion:
1. Internet Protocol Disclosure.
You shall disclose all Internet Protocol ("IP") addresses with which You
conduct any and all transactions, business and/or operations as a part of Your
Publisher relationship with Company.
2. Informed Recipient Consent.
You shall distribute such e-mails and/or e-mail-based Creative only to those
recipients who have expressly agreed via "Confirmed Opt-in" or
"Verified Opt-in" ("Opt-In") to receive such transmissions from
You. You shall not distribute Publisher E-mails and/or e-mail-based Creative
using improperly acquired or generated e-mail addresses (whether obtained by
automated means from websites, services or otherwise, or generated by automated
random combinative algorithms). In addition, You shall maintain electronic
and/or tangible records evidencing the subscription of such consumers to Your
lists for verification by Company as required. This verification information
must include, at a minimum, the date, time, originating IP address and location
where the e-mail address or other recipient information was submitted and, if
applicable, a copy of the subscription form used. If requested, You shall
explain and provide examples of the mechanisms that You use (historically and
currently) to obtain and build Your list of subscribers.
3. Distributor Location.
You shall only distribute Publisher E-mails and/or e-mail-based Creative that
include a valid sender domain name and/or responsive IP address. You shall only
distribute Publisher E-mails and/or e-mail-based Creative, as applicable, from
a valid sender domain name and/or responsive IP address that You have
authorization to utilize for the purposes of sending commercial e-mail. You
shall not relay or retransmit Publisher E-mails and/or e-mail-based Creative in
order to mislead or deceive as to the origin of the Publisher E-mails and/or
e-mail-based Creative, as applicable, nor shall Publisher E-mails and/or
e-mail-based Creative be transmitted from e-mail accounts registered to false
owners.
4. Intended Recipient Disclosure.
You shall only distribute Publisher E-mails and/or e-mail-based Creative that
clearly indicate the e-mail address to which the Publisher E-mail and/or
e-mail-based Creative, as applicable, is sent (the intended recipient's email
address) in the body of the message or in the "TO:" line of the
applicable email message.
5. Publisher E-mail and/or E-mail-based Creative
Content.
You shall only use approved Subject and From lines, Copy, Text and HTML.
Suggestions for new Subject and From lines, Copy, Text and HTML are allowed;
however, they must be approved by Company prior to being included in any
Publisher E-mails and/or e-mail-based Creative, as applicable.
6. Appropriate Publisher E-mail and/or E-mail-based
Creative Content.
Company strictly forbids the display of sexually explicit materials via
Publisher E-mail and/or e-mail-based creative. In addition, no Publisher E-mail
and/or e-mail based Creative may display content that fails to satisfy all of
the requirements of Section 2 of the Terms and Conditions. Without limiting the
generality of the foregoing, You represent and warrant that Your Publisher
E-mail and/or e-mail based Creative, as applicable, will not contain
objectionable content (including, but not limited to, content that is
misleading, libelous, defamatory, obscene, offensive, violent, bigoted,
hate-oriented, illegal and/or that promotes illegal goods, services and/or
activities).
7. Distributor Contact Detail Disclosure.
You shall only distribute Publisher E-mails and/or e-mail-based Creative that
include valid and responsive contact information of the sender, list manager
and/or list owner. This contact information shall include Your valid physical
postal address (provided that a post office box is not considered a valid
physical mailing address) and, optionally, Your phone number. Company reserves
the right to add such address(es) should Publisher fail to include same, but
Company is in no way responsible for including such address(es) where Publisher
fails to do so. You must not use any invalid or erroneous e-mail header
information (including, without limitation, source, destination, domain, IP
address and/or routing information).
8. Transparency in Operation.
Each Publisher E-mail and/or e-mail-based Creative that You send must include a
functioning unsubscribe link, through use of which e-mail recipients may
request not to receive future commercial e-mail messages from Publisher with
respect to any Program, or other e-mail contact generally. Such unsubscribe
link must remain active and capable of receiving opt-out requests for no less then
thirty (30) days after transmission of the underlying e-mail message.
9. Disclosure of Methods.
You shall seed Your list(s) of e-mail addresses , as well as the list(s) of
your Affiliated Third Parties, that are used in connection with any and all
Programs with an email provided by Epicenter Network, Inc.
10. Unsubscribe Requests.
You shall process any and all unsubscribe requests within five (5) business
days or less from the date of Your receipt of such requests. In addition, You shall
maintain electronic and/or tangible records evidencing the removal of such e-mail
address(es) from Your lists, together with any and all deleted e-mail
address(es) provided to you by Company, for verification by Company as
required.
11. Complainant and Recipient Enquiries.
Where any recipient of Your Publisher E-mails and/or e-mail-based Creative
requests and/or inquires with You regarding the location where such consumer
Opted-In to receive e-mail marketing from You, You must respond to such request
and/or inquiry within seventy-two (72) hours of receipt of same. Your response
to such inquiries must include, at a minimum, the date, time, originating IP
address, URL and the location where the applicable e-mail address or other
consumer information was submitted.
12. Suppression List.
You shall download the Company Suppression List and remove any and all such
e-mail addresses appearing therein from the Publisher E-mails prior to engaging
in e-mail marketing in connection with approved Advertiser Programs. Company
shall make available, at a Company-designated area of the Site, a suppression
list (“Company Suppression List”), updated on a regular basis, generated from
e-mail marketing activities associated with various Programs transmitted by
and/or through the Service. You agree to check the Company Suppression List
regularly (no less than daily). You agree to process any new unsubscribe
requests within five (5) days of such requests being added to the Company
Suppression List. No less than daily during the term of this Agreement, You
shall deliver, via e-mail, Your own list of suppressed e-mail address(es) that
You collect in connection with Your e-mail marketing activities associated with
any and all Programs (“Your Suppression List”). If no such e-mail address(es)
are supplied to Company by You on a given day during the term of this
Agreement, then Company may conclude that no such address(es) were collected on
that day by You. The Company Suppression List, Your Suppression List and login
provided by Company are deemed to be confidential information of Company. The
Company Suppression List and Your Suppression List may not be used by You for
any purpose other than to comply with applicable laws regulating e-mail
transmissions.
13. Solicitation Disclosure.
You shall only distribute Publisher E-mail and/or e-mail-based Creative that
include language in the body of the Publisher E-mail and/or e-mail-based
Creative, as applicable, that clearly and conspicuously identifies that the
message is an advertisement or solicitation.
14. Privacy Policy.
Each Publisher E-mail and/or e-mail-based Creative that You distribute shall
include a live, functioning hyperlink to an associated privacy policy that
meets the test of reasonable commercial best practices applicable to privacy
policies in general. Your e-mail marketing activities must adhere to Your
applicable privacy policy, in both letter and in spirit, in all respects and
with no exceptions. The subject privacy policy must be available for viewing
from each domain associated with Your e-mail transmission.
15. E-mail Address Harvesting.
Company strictly forbids Publisher E-mail and/or e-mail-based Creative sent for
the purpose (but not necessarily the sole purpose) of harvesting e-mail address(es)
in order to send future unsolicited commercial e-mails.
16. Control Over the Distribution Process.
You shall immediately cease distribution of Publisher E-mail and/or
e-mail-based Creative solicitations promoting any Program(s) upon notice from
Company to You. You shall be permitted to use brokers or third parties to
deliver Publisher E-mail and/or e-mail-based Creative; provided, however, that
all such distributors shall be considered Affiliated Third Parties as defined
above.
17. Infringement.
Your promotion of Programs via Publisher E-mail and/or e-mail-based Creative
must not infringe, misappropriate or otherwise violate any copyright, patent,
trademark, trade secret or other similar intellectual property right, or
otherwise violate or breach any duty toward, or rights of, any person or entity
including, without limitation, rights of privacy and publicity; and, must not
result in any consumer fraud, product liability or breach of contract to which
You are a party or cause injury to any third party.
18. Intellectual Property.
You shall not use Company's or its Advertisers' names (including any
abbreviation thereof) or any trademark, trade name, service mark, logo or other
Company identifying information in the originating or return e-mail address
line, header or subject line of any Publisher E-mail and/or e-mail-based
Creative transmission unless otherwise directed to do so by Company in writing.
19. A Clear History.
You must have a strong track record of compliance with the terms and conditions
of this AUP, as well as applicable laws, rules, regulations and industry
standards governing the marketing and promotion of consumer goods via e-mail at
all times, both prior to, and after, the commencement of Your relationship as
an Publisher. You shall immediately alert Company in the event that any
litigation or investigation ensues concerning Your e-mail practices, or the
e-mail practices of Your parent entities, subsidiaries, affiliates and/or Your
Affiliate Third Parties (regardless of whether such litigation relates to Your
relationship with Company).
20. Truthfulness.
You must be clear, complete and forthcoming in all statements to Company, its
Advertisers and such e-mail and/or e-mail-based Creative recipient.
21. Violations.
Company will strictly enforce a zero tolerance policy with respect to the
transmission of e-mail marketing in violation of this AUP and/or the Agreement.
Company reserves the right to shut down or disable any program at any point if
it appears that a violation of this AUP or the Agreement has occurred. Company
shall be the sole arbiter in all cases.
7.
Use of Search for Marketing Purposes.
Search
Engine Marketing may only be utilized by You if its use complies with Company's
AUP for Search Engine Marketing, available below:
The following Acceptable Use Policy (“AUP”),
our Publisher Terms and Conditions (the “Terms and
Conditions”), the Email AUP, the Adware AUP,
each of which are expressly incorporated herein by reference, collectively
constitute and are referred to herein as the “Agreement”.
The Agreement is the binding legal agreement between Epicenter Network, Inc. (“Company”)
and you ("You" or "Your"),
a user of Company’s website (the "Site")
and the Company’s advertising network service (“Service”). You
agree to use the Site, the Service, and any
additional products and/or services offered by Company in the
future only in accordance with the Agreement. Notwithstanding
the foregoing, this AUP
is not an exhaustive recitation of all rules, regulations, standards and legal
requirements governing Your conduct:
a. as an Publisher (as
that term is defined herein below) of Company; and/or
b. in connection with Your
distribution and administration of marketing campaigns in association with
Search Marketing Programs (“Search Marketing Programs”).
The Agreement states the minimum standards that You
and Your Affiliated Third Parties (as defined below) must
adhere to in light of current laws, rules and regulations governing, and
industry best practices applicable to, the search marketing. In the event
that any state or federal law, rule or regulation governing search marketing,
is enacted or amended setting forth standards more restrictive than those set
forth herein, the more restrictive standards contained in such subsequently
enacted or amended law, rule or regulation shall apply to You and
Your Affiliated Third Parties.
2. Company reserves the right to make
changes to the Site, the Service and/or the
terms and conditions of the Agreement at any time. The latest Agreement
will be posted on the Site. Your continued
use of the Site and/or Service after any such
modification, and posted notification thereof, shall constitute Your
consent to such modification. Therefore, You should regularly
check the Site for any updates and/or changes. This AUP
applies to and governs Your relationship with the Company
in any and all matters associated with the Search Marketing Programs
including, without limitation, as an Publisher in connection with your use of Company’s
Service (“Publisher”). For purposes of the Agreement,
“Publisher” means the individual or entity registering with Company
to use the Service and, without limitation, any parent
entities, owners, subsidiaries, affiliates, predecessor or successor entities,
and any agents, officers, directors or employees acting on behalf of same, in
connection with your participation in any Search Marketing Programs.
If You do not agree to the terms and conditions contained
within this AUP and the Agreement in their entirety, You
are not authorized to use the Service and/or Site
in any manner or form whatsoever in connection with the Search
Marketing Programs. Any capitalized terms not defined herein shall
have the same meaning as set forth in the Terms and Conditions.
3. Where authorized by both Company
and the applicable Advertiser(s), the following terms apply to
all content created in connection with any and all Search Marketing
Programs by Publisher on behalf of such Advertiser(s)
(“Search Marketing Content”). Company will
allow Search Marketing Content to be used by Publisher in
connection with any and all Search Marketing Programs that Publisher
participates in where such Search Marketing Content, as well
as the marketing practices of Publisher in general, comply
with: (a) all applicable federal, state, provincial, foreign and local laws,
ordinances, rules, regulations, statutes, court orders, judgments and decrees
that govern search marketing and/or communications; and (b) any and all
applicable Federal Trade Commission regulations. Compliance with the
foregoing shall be determined in the joint discretion of Company
and the applicable Advertiser(s). As referenced herein and
throughout the Agreement, Company and, where
applicable, Advertiser, reserve the right, completely, jointly
and exclusively, to establish the test for reasonableness with regards to any
conditions set forth herein.
4. Without limitation, the conditions set forth herein
shall apply equally to You, Your parent
entities, owners, subsidiaries, predecessors and/or successor entities and any
agents, officers, directors, employees acting on Your behalf, as well as any of
Your affiliates, partners, distributors and/or other third
parties with whom You do business while governed by the Agreement
(collectively, “Affiliated Third Parties”).
5. All Affiliated Third Parties must
be approved by Company prior to their assisting You
in connection with any Search Marketing Program governed by
the Agreement. Company reserves the right to
reject Your request to work with any Affiliated Third
Parties and may restrict Your right to use any
previously approved Affiliated Third Parties at any time and
for any reason. You are responsible for ensuring that
any and all such Affiliated Third Parties agree, in writing,
to terms and conditions no less restrictive than those contained herein, and You
must submit all such written representations to Company upon
request by Company. You must also have
agreement from all Affiliated Third Parties to fully and
completely indemnify Company for all damages arising from
their breach of any of the provisions set forth herein and You
must have the ability to terminate distribution with or procurement by Affiliated
Third Parties immediately. Notwithstanding the foregoing, You
shall be solely responsible for any breach of the provisions of the Agreement
by Affiliated Third Parties.
6. Search Marketing Content utilized by Publisher
in connection with any and all Search Marketing Programs must,
at a minimum, comply with, as applicable, the Agreement and
all applicable laws. In addition, Publisher must adhere to the following
obligations, as determined by Company and, where applicable, Advertiser,
in their joint and exclusive discretion:
a) Clarity of Disclosures.
(i) Company strictly restricts the
display of potentially misleading terms via Search Marketing Content
transmitted by You. Such misleading terms include, but are not
limited to “free” and “free-like” language.
(ii) Company strictly forbids the
display of terms transmitted by You via Search
Marketing Content that represent or imply that an Search
Marketing Program is limited to certain geographical areas. (E.g.,
“Offer only valid to residents of New Jersey.”).
b) Consistency of Disclosures.
Without limiting any of the foregoing, all Search
Marketing Content transmitted by You in connection
with a Search Marketing Program must be consistent across that
Search Marketing Program: from the Creative
to the corresponding landing page(s), confirmation page(s) and/or other web
pages that are linked to such Creative so as not to be
misleading. Company shall determine, in its sole discretion,
the Consistency of Disclosures associated with any Search Marketing
Programs.
c) Appropriate Search Marketing Content.
Company strictly forbids the display of
sexually-explicit materials via Search Marketing Content
transmitted by You. No Search Marketing Content
may display content that fails to satisfy all of the requirements of Section 2
of the Terms and Conditions. As a Publisher, You
represent and warrant that Your Search Marketing Content will
not contain objectionable content (including, but not limited to, content that
is misleading, deceptive, libelous, defamatory, obscene, offensive, violent,
bigoted, hate-oriented, illegal and/or that promotes illegal goods, services or
activities). Company will have final approval on all Search
Marketing Content.
d) Privacy Policy.
You shall conspicuously post a privacy policy
on any and all website(s), landing page(s), confirmation page(s) and/or other
web page(s) upon which you collect consumer information in connection with a Search
Marketing Program. The privacy policy must comply with all federal and
state privacy laws and meet the test of reasonable commercial best practices
applicable to privacy policies. Your data protection, use and
privacy practices must adhere to Your applicable privacy
policy, in both letter and in spirit, in all respects and with no exceptions. The
privacy policy must be available for viewing via a clickable link. Such link
must include the term “privacy” or “privacy policy.”
e) Children.
Company strictly forbids You from
transmitting Search Marketing Content to anyone under the age
of eighteen (18). Notwithstanding the foregoing, You
shall distribute only such Search Marketing Content that
complies with all applicable laws dealing with children and marketing
including, but not limited to, the Children’s Online Privacy Protection Act (“COPPA”),
rules promulgated pursuant thereto and regulations regarding age restrictions
for particular products.
f) Keyword Bidding.
All keywords purchased by You in
connection with an Search Marketing Program must:
(i) Have some nexus to its corresponding Search
Marketing Content so as not to be misleading.
(ii) As applicable, meet the additional criteria
specified by the applicable Advertiser.
g) Social Media.
Company strictly forbids the use of social
media profiles (e.g., MySpace, Facebook, Tribe) to advertise or distribute Search
Marketing Content. This does not preclude You from
purchasing keywords which reside on social media websites to advertise and
distribute Search Marketing Content.
h) Intellectual Property.
(i) Your distribution of Search
Marketing Content in connection with any and all Search
Marketing Programs must not: (1) utilize any copyright, patent,
trademark, trade secret or other similar intellectual property right of any
third party without their prior written consent; (2) otherwise violate or
breach any duty toward, or rights of, any person or entity including, without
limitation, rights of privacy and publicity; or (3) must not result in any
consumer fraud, product liability or breach of contract to which You are a
party.
(ii) You shall not use Company
or its represented Advertisers’ names (including any
abbreviation thereof) or any trademark, trade name, service mark, logo or other
Company-identifying information in any part of any Search
Marketing Content transmission unless otherwise directed by Company
in writing.
(ii) You shall not falsely represent
or imply that You are certified by any third-party in any part
of any Search Marketing Content transmission. This includes
but is not limited to falsely representing that Your website
has been “certified by TRUSTe,” or falsely representing that You
are an “Official Partner” of a brand, a merchant or other corporation.
i) A Clear History.
You must have a strong track record of
compliance with the terms and conditions of this AUP, as well
as applicable laws, rules, regulations and industry standards governing the
marketing and promoting of consumer goods at all times, both prior to, and
after, the commencement of Your relationship as a Publisher.
You shall immediately alert Company in the
event that any litigation or investigation ensues concerning You,
Your parent entities’, subsidiaries’, Your
affiliates’ and/or Affiliated Third Parties’ Search
Marketing Content practices (regardless of whether such litigation
relates to Your relationship with Company).
j) Truthfulness.
You must be clear, complete and forthcoming
in all statements directed at and concerning Company, its Advertisers
and recipients of said Search Marketing Content.
k) Violations.
Company will strictly enforce a zero tolerance
policy with respect to the publication of Search Marketing Content
programs and services, as well as any and all marketing activities associated
therewith. Company reserves the right to shut down or disable
any program at any point if it appears that a violation of this AUP
and/or the Agreement has occurred in Company’s
sole and absolute discretion.
8.
Payment.
(a) You will be paid a "Base Fee," which shall equal the total
Bounties generated by the Event(s) specified in the applicable Program(s). The
Base Fee shall be paid on a default schedule of thirty (30) days after the last
day of a given calendar month for all the Events realized in that month. Every
Publisher account must have a unique, valid taxpayer identification number
("TIN") or valid Social Security number associated with it. All
payments shall be based on actual figures as defined, accounted for and audited
by Company and/or the applicable Advertiser(s). All accounts will be paid in US
Dollars. Publishers shall have the choice of receiving payment via wire
transfer, ACH, Paypal or check depending on your physical location. No payment
will be issued for an amount of less than Twenty Five Dollars ($25.00) or Five
Hundred Dollars ($500.00) via wire transfer. Where You have opted to receive
payment via wire transfer, and Your account contains less than Five Hundred
Dollars ($500.00), You will receive payment when Your account reaches the Five
Hundred Dollar ($500.00) threshold or when Your relationship with Company
ceases, whichever occurs first. Where You have opted to receive payment via
check, and Your account contains less than Twenty Five Dollars ($25.00), You
will receive payment when Your account reaches the Twenty Five Dollars ($25.00)
threshold or when Your relationship with Company ceases, whichever occurs
first.
(b)
Company keeps track of Events and associated Bounties via various tracking
technologies including, but not limited to, the use of website integration tags
included in the Creative, or otherwise (“Integration Tags”). In addition,
Publishers that display Creative on their Publisher Websites shall allow
Company to place a 1x1 tracking pixel on the homepage of each Publisher Website
displaying such Creative (“Pixel Tags” and together with the Integration Tags,
“Tags”). To ensure payment, You may not attempt in any way to interfere and/or
alter the Tags or other data necessary for Company to measure the performance
of Creative, calculate Bounties and Events and otherwise provide the Service
(collectively, "Website Data"). Altering Website Data may jeopardize Your
ability to be paid for Events and is grounds for immediate termination of Your
Publisher account. Without limiting the generality of the foregoing, if You
interfere with Website Data in any way, thereby disrupting or disabling
Company's tracking systems, Company has the right to cancel any applicable
Bounties due for Events generated in connection with such Website Data. If
there is any impairment of the Website Data not caused by You or any of Your
Sub-Publishers (as defined below), Company shall calculate Events based upon: (i)
Your average monthly Events recorded by Company for the applicable Program,
prorated for any shorter or longer period of time, where data is available to
calculate a monthly average; or (ii) such amount that Company reasonably determines
is due and owing, in its sole discretion.
(c)
Publishers that refer a new publisher to Company may be eligible for a
"Referral Fee." The referred publisher must be accepted by the
Company in order for Your to be eligible for a Referral Fee. You may not refer
another account belonging to You. You may not refer a publisher that You have
referred previously. The default Referral Fee is five percent (5%) of the
revenues generated by the referred publisher for the six (6) month period
commencing on the first day that any money is earned by the referred Publisher
(“Referral Fee Period”). In order to be eligible to earn a Referral Fee in a
given month, Your primary account must contain a minimum balance of One
Thousand Dollars ($1,000.00) at the end of that month ("Referral Payment
Threshold"). The Referral Payment Threshold is based entirely on Your
monthly Base Fees, not any Referral Fees previously earned. If Your account is
below the Referral Payment Threshold during a given month, You will not be eligible
to earn a Referral Fee that month; however, You will be eligible again the
following month if it is within the aforementioned six (6) month Referral Fee
Period. The Referral Fee will be paid to Your account sixty (60) days after the
end of the applicable month, provided that a minimum balance of Twenty-Five
Dollars ($25.00) in Referral Fees has accumulated in Your account. If Your
account contains a Referral Fee amount of less than Twenty-Five Dollars
($25.00), You will be paid upon reaching the Twenty-Five Dollar ($25.00)
threshold, or when Your relationship with Company ceases, whichever occurs
first.
9.
Termination.
The Agreement shall commence upon Company's acceptance of Your Publisher
application and remain in effect until terminated as set forth herein. The
Agreement may be terminated by You upon three (3) days' prior written notice to
Company. The Agreement shall terminate immediately upon the dissolution or
insolvency of either Party. Company reserves the right, in its sole and
absolute discretion, to terminate a Program and/or remove any Creative and/or
Offers at any time for any reason. Company also reserves the right to terminate
the Agreement, as well as Your access to the Website, Service and/or any other
Company Intellectual Property at any time with or without notice to You. Where
Company decides, in its sole discretion, to provide You with termination
notice, such notice will be sent via e-mail and will be effective immediately.
Upon termination all legitimate moneys due to Publisher that are actually
collected from the applicable Advertiser, even amounts below the Payment
Threshold, will be paid during the next billing cycle. If Publisher commits
fraud in connection with the Service and/or any Program, or otherwise violates
the Agreement, the Privacy Policy or any of the applicable AUP(s), then such
payments otherwise due Publisher shall be revoked, as determined solely by
Company. The representations, warranties and obligations contained in Sections
2, 8, 10, 11, 12 and 13 hereof shall remain in full force and effect after
termination of the Agreement. Other than in the case of Your breach of the
Agreement, all payment obligations accruing prior to the date of termination
shall survive until fully fulfilled.
10.
Representations and Warranties.
You represent and warrant that:
- You will not,
nor knowingly permit any person to, use third party trademarks in any way
to direct traffic to any Publisher Websites or Advertiser websites
including, but not limited to, purchasing keywords from a search engine
service provider that include the trademark, service mark and/or brand
name, or any derivative of any such trademark, service mark or brand name,
of Company, any Advertiser and/or any of their respective affiliates or
clients;
- Your Publisher
Websites and Publisher E-mails are, and shall remain at all times during
the term hereof, in compliance with all applicable foreign, federal and
state laws and shall not contain or promote, or link to another website
that contains, libelous, defamatory, abusive, violent, prejudicial,
obscene, sexually explicit or illegal content;
- Your Publisher
Websites and Publisher E-mails are, and shall remain at all times during
the term hereof, in compliance with all applicable Company rules and
policies;
- Your Publisher
Websites and Publisher E-mails are, and shall remain at all times during
the term hereof, in compliance with any and all applicable rules and
policies set forth by the respective Advertisers in the Programs that You
elect to participate in;
- You will not send
unsolicited bulk e-mail (i.e., SPAM) or otherwise violate any of the
provisions of CAN-SPAM;
- You will not
post any messages to newsgroups, chat rooms, bulletin boards or any other
places that mention specific Advertisers or Programs unless You obtain the
express prior written permission from Company; and
- You are not, nor
are You acting on behalf of any person or entity that is, prohibited from
engaging in transactions with U.S. citizens, nationals or entities under
applicable U.S. law and regulation including, but not limited to,
regulations issued by the U.S. Office of Foreign Assets Control (“OFAC”).
In addition, You are not, nor are You acting on behalf of any person or
entity that is, a Specially Designated National (“SDN”), as OFAC may so
designate from time to time. In addition to all other rights and remedies
available to Company under this Agreement, and at law and in equity, Your
breach of this Section 10.7 shall result in immediate termination of Your
Publisher account and forfeiture of any and all Bounties previously paid
and/or owed to You under this Agreement.
- You will be
solely responsible for the development, operation and maintenance of the
Publisher Websites, Publisher Databases and Publisher E-mails and for any
and all materials that appear therein. Such responsibilities include,
without limitation: (i) the technical operation of the Publisher Websites,
Publisher Databases, Publisher E-mails and all related equipment; (ii)
creating and posting content, descriptions and references on or through
the Publisher Websites and Publisher E-mails; and (iii) the accuracy and
propriety of materials posted on or through the Publisher Websites and
Publisher E-mails;
- Your Publisher
Websites, Publisher Databases, Publisher E-mails, and any and all information,
products and/or services contained therein, or that You can link to or
access therein or therethrough, as well as Your associated marketing
practices, will at all times fully comply with all applicable foreign,
federal and state laws, rules and/or regulations including, but not
limited to, the federal Truth-in-Lending Act, the Equal Credit Opportunity
Act ("ECOA"), the Fair Debt Collection Practices Act, the
Gramm-Leach-Bliley Act, the Federal Trade Commission Act, the Federal
Communications Act, the ATSR, COPPA, the Fair Credit and Reporting Act,
CAN-SPAM, applicable Federal Trade Commission implementing regulations and
any and all foreign, federal and state deceptive trade practices
legislation;
- There is no
pending or, to the best of Your knowledge, threatened claim, action or
proceeding against You;
- Your execution,
delivery and performance of the Agreement will not conflict with or violate:
(i) any provision of law, rule or regulation to which You are subject;
(ii) any order, judgment or decree applicable to You; (iii) any provision
of Your corporate by-laws or certificate of incorporation, if applicable;
or (iv) any agreement or other instrument applicable to You;
- You own, or have
the legal right to use and distribute, all content, copyrighted material,
products and services displayed on and/or through Your Publisher Websites
and Publisher E-mails;
- You agree to not
use deceit when marketing Advertiser’s Offers or presenting these Offers
to consumers;
- You have the
right, power, and authority to enter into the Agreement and grant the
rights specified herein;
- You will not
attempt in any way to alter, modify, eliminate, conceal or otherwise
render inoperable or ineffective the Website Data provided by or obtained
from Company that allows Company to measure the performance of Creative,
calculate Bounties and Events and otherwise provide the Service;
- You will not
“frame” or “mirror” any part of the Website, without obtaining our prior
express written authorization;
- If instructed to
do so by Company and/or if the Agreement terminates, You will immediately
remove and discontinue the use of any Creative, Offers and/or Website
Data;
- You understand
that Company does not represent, warrant, or make any specific or implied
promises as to the successful outcome of any Programs;
- You will display
the Creative exactly as it is made available to You in connection with the
applicable Program and You will not alter in any way any Creative that has
been made available to You by and through the Website;
- If fraudulent
activities are occurring, unbeknownst to You, through Your Publisher
Websites, Publisher Databases and/or Publisher E-mails and You are
notified that fraudulent activities may be occurring, if You do not take
all necessary action to stop such fraudulent activities from continuing,
then You shall be responsible for all associated costs and legal fees
resulting from these fraudulent activities; and
- You understand
that if any errors or undesirable results occur in connection with
recording or calculating Events, Bounties and associated payments due to
no fault of Company, Company shall not be responsible for any associated
losses.
11.
Customer Information; Non-Disclosure.
As between Publisher and Company, all information submitted by end-user
customers ("Customer Information") in connection with a Program shall
be considered proprietary to and owned exclusively by Company. Such Customer
Information shall be considered the confidential information of Company and may
not be utilized or otherwise disclosed by You. Without limiting the generality
of the foregoing, as well as the confidentiality obligations set forth herein,
You agree that You: (i) will not transfer, export, display, forward or
otherwise share data contained in the Customer Information to/with any third
party; (ii) will not use the data contained in the Customer Information on Your
own behalf in any manner not expressly authorized by Company; (iii) will not
use the data contained in the Customer Information to create any interactive
on-line, CD-ROM or other derivative product; (iv) will not publicly display the
data contained in the Customer Information on the Internet; and (v) will notify
Company as soon as You learn of any actual or suspected unauthorized use of or
access to the data contained in the Customer Information and provide reasonable
assistance to Company in the investigation and prosecution of any such
unauthorized use or disclosure.
In
addition, You acknowledge that all non-public information, data, reports and
other Company Intellectual Property made available by Company hereunder or
otherwise as part of the Service is proprietary to and owned by Company or,
where applicable, the Advertiser or third party providing such material. All
Company Intellectual Property and other proprietary and confidential
information of Company’s Advertisers and third party partners is protected by
copyright, trademark and other intellectual property laws. You agree not to reproduce,
disseminate, sell, distribute or commercially exploit any Company Intellectual
Property and other proprietary or confidential information of Company or its
Advertisers and third party partners in any manner. These non-disclosure
obligations shall survive termination or expiration of the Agreement. Both
Parties agree and acknowledge that if Publisher violates its confidentiality
obligations under the Agreement, it would result in serious and irreparable
damage to Company and that a remedy at law for any such breach would be
inadequate. Therefore, the Parties agree that in the event of a breach or
threatened breach of these provisions by Publisher, Company shall be entitled
to: (a) injunctive relief without the requirement to post a bond; (b) liquidated
damages in the amount of Fifty Thousand Dollars ($50,000.00); and (c) any other
remedies that Company may have at law or in equity.
12.
Limitation of Liability; Disclaimer of Warranty.
IN NO EVENT SHALL COMPANY BE LIABLE TO YOU OR ANY THIRD PARTY (INCLUDING,
WITHOUT LIMITATION, ANY CUSTOMERS OBTAINED THROUGH YOUR MARKETING EFFORTS) FOR
ANY DAMAGES OF ANY KIND ARISING FROM OR RELATED TO YOUR USE OF THE WEBSITE,
SERVICE, WEBSITE DATA, OPERATION OF A PROGRAM, ADVERTISERS' UNDERLYING PRODUCTS
AND/OR SERVICES OR YOUR DISPLAY OF ANY CREATIVE OR OFFERS ON OR THROUGH YOUR
PUBLISHER WEBSITES AND/OR PUBLISHER E-MAILS AND/OR ANY OTHER COMPANY
INTELLECTUAL PROPERTY INCLUDING, BUT NOT LIMITED TO, SPECIAL, INDIRECT,
INCIDENTAL, PUNITIVE AND/OR CONSEQUENTIAL DAMAGES, EVEN IF COMPANY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY'S MAXIMUM AGGREGATE
LIABILITY TO PUBLISHER AND ANY THIRD PARTY UNDER ANY AND ALL CIRCUMSTANCES
SHALL BE FIVE HUNDRED DOLLARS ($500.00). PUBLISHER RECOGNIZES AND ACKNOWLEDGES
THAT THIS LIMITATION OF DAMAGES IS FAIR AND REASONABLE.
THE
WEBSITE, SERVICE, CREATIVE, OFFERS, PROGRAMS, WEBSITE DATA, ADVERTISERS’
UNDERLYING PRODUCTS AND SERVICES, INFORMATION AND CONTENT ARE PROVIDED ON AN
"AS IS" AND "AS AVAILABLE" BASIS AND ALL WARRANTIES,
EXPRESS AND IMPLIED, ARE DISCLAIMED (INCLUDING, WITHOUT LIMITATION, THE
DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF
INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE). THE WEBSITE,
SERVICE, CREATIVE, OFFERS, PROGRAMS, WEBSITE DATA AND/OR ADVERTISERS’
UNDERLYING PRODUCTS AND SERVICES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER
LIMITATIONS. COMPANY HAS NO LIABILITY, WHATSOEVER, TO PUBLISHER OR ANY THIRD
PARTY, FOR PUBLISHER’S USE OF, OR INABILITY TO USE, THE WEBSITE, SERVICE,
CREATIVE, OFFERS, PROGRAMS, WEBSITE DATA AND/OR ADVERTISERS’ UNDERLYING
PRODUCTS OR SERVICES AND COMPANY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND
IMPLIED, THAT PUBLISHER’S USE OF SAME WILL BE UNINTERRUPTED OR ERROR-FREE OR
THAT ANY OF THE PROGRAMS WILL BE AVAILABLE TO PUBLISHER. THE NEGATION OF
DAMAGES SET FORTH HEREINABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE
BARGAIN BETWEEN COMPANY AND PUBLISHER. THE WEBSITE, SERVICE, CREATIVE, OFFERS,
PROGRAMS, WEBSITE DATA AND/OR ADVERTISERS’ UNDERLYING PRODUCTS AND SERVICES
WOULD NOT BE PROVIDED TO PUBLISHER WITHOUT SUCH LIMITATIONS. COMPANY MAKES NO
REPRESENTATION OR WARRANTY WITH RESPECT TO ANY RESULTS OBTAINABLE THROUGH THE
WEBSITE, SERVICE, CREATIVE, OFFERS, WEBSITE DATA AND/OR PROGRAMS. NO ADVICE OR
INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY PUBLISHER FROM COMPANY
THROUGH THE WEBSITE, SERVICE, CREATIVE, OFFERS, WEBSITE DATA AND/OR PROGRAMS
SHALL CREATE ANY WARRANTY, REPRESENTATION AND/OR GUARANTEE NOT EXPRESSLY STATED
IN THE AGREEMENT.
THE
WEBSITE, SERVICE, CREATIVE, OFFERS, PROGRAMS, WEBSITE DATA ADVERTISERS'
UNDERLYING PRODUCTS AND SERVICES, INFORMATION AND CONTENT, AS WELL AS ANY OTHER
COMPANY INTELLECTUAL PROPERTY, ARE PROVIDED ON AN "AS IS" AND
"AS AVAILABLE" BASIS AND ALL WARRANTIES, EXPRESS AND IMPLIED, ARE
DISCLAIMED (INCLUDING, WITHOUT LIMITATION, THE DISCLAIMER OF ANY WARRANTIES OF
MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS FOR A
PARTICULAR PURPOSE). THE WEBSITE, SERVICE, CREATIVE, OFFERS, PROGRAMS, WEBSITE
DATA AND/OR ADVERTISERS' UNDERLYING PRODUCTS AND SERVICES, AS WELL AS ANY OTHER
COMPANY INTELLECTUAL PROPERTY, MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER
LIMITATIONS. COMPANY HAS NO LIABILITY, WHATSOEVER, TO PUBLISHER OR ANY THIRD
PARTY, FOR PUBLISHER'S USE OF, OR INABILITY TO USE, THE WEBSITE, SERVICE,
CREATIVE, OFFERS, PROGRAMS, WEBSITE DATA AND/OR ADVERTISERS' UNDERLYING
PRODUCTS OR SERVICES, AS WELL AS ANY OTHER COMPANY INTELLECTUAL PROPERTY, AND
COMPANY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, THAT PUBLISHER'S
USE OF SAME WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ANY OF THE PROGRAMS
WILL BE AVAILABLE TO PUBLISHER. THE NEGATION OF DAMAGES SET FORTH HEREINABOVE
IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND
PUBLISHER. THE WEBSITE, SERVICE, CREATIVE, OFFERS, PROGRAMS, WEBSITE DATA
AND/OR ADVERTISERS' UNDERLYING PRODUCTS AND SERVICES, AS WELL AS ANY OTHER
COMPANY INTELLECTUAL PROPERTY, WOULD NOT BE PROVIDED TO PUBLISHER WITHOUT SUCH
LIMITATIONS. COMPANY MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY
RESULTS OBTAINABLE THROUGH THE WEBSITE, SERVICE, CREATIVE, OFFERS, WEBSITE DATA
AND/OR PROGRAMS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY
PUBLISHER FROM COMPANY, ANY ADVERTISER, OR OTHERWISE THROUGH THE WEBSITE,
SERVICE, CREATIVE, OFFERS, WEBSITE DATA AND/OR PROGRAMS, AS WELL AS ANY OTHER
COMPANY INTELLECTUAL PROPERTY, SHALL CREATE ANY WARRANTY, REPRESENTATION AND/OR
GUARANTEE NOT EXPRESSLY STATED IN THE AGREEMENT.
13.
Indemnity.
You shall indemnify, defend and hold Company, its Advertisers, their parents,
affiliates and/or subsidiaries, and each of their respective officers,
partners, members, managers, employees, agents and attorneys, harmless from and
against any and all claims, allegations, liabilities, costs and expenses
(including reasonable attorneys' fees and the cost of indemnifying third
parties) arising out of or related to: (i) Your use of the Website, Service,
Creative, Website Data or any Offer(s), in any manner whatsoever; (ii) any
third party claim related to Your Publisher Websites, Publisher Databases,
Publisher E-mails and/or Your marketing practices; (iii) any content, goods or
services offered, sold or otherwise made available by You on or through Your
Publisher Websites, Publisher E-mails or otherwise; (iv) any claim that Company
is obligated to pay any taxes in connection with payment made to You in
connection with the Agreement and/or any Program; (v) breach or violation of
the Agreement and/or any representation or warranty contained herein; and/or
(vi) the acts and/or omissions of any Sub-Publishers. Company shall indemnify,
defend and hold You harmless from and against any and all claims allegations,
liabilities, costs and expenses (including reasonable attorneys' fees) by third
parties arising out of any actual infringement of intellectual property rights
resulting from Your display of the Creative provided in connection with any
Program. Without limiting the foregoing, Publisher agrees and acknowledges that
it shall be fully responsible for any and all taxes, whether state or local,
and related fees, costs and penalties incurred by Company and/or any of its
Advertisers pursuant to Washington State Tax Law.
14.
Assignment, Sub-Publishers and Jurisdiction
Company may assign the Agreement with or without Your consent. You may not
assign the Agreement without the prior written consent of Company, which may be
withheld for any reason. The Agreement will be binding on, inure to the benefit
of and be enforceable against, the Parties' respective successors and assigns.
Publisher may desire to use its business partners and/or associates to fulfill
the obligations or exercise the rights under a particular Program. For purposes
of the Agreement, each of Publisher's business partners or associates that
participate in or perform any activities on behalf of Publisher under the
Agreement shall be considered to be a "Sub-Publisher." Company
reserves the right to review and approve or reject any and all Sub-Publishers and
may revoke a prior approval of any Sub-Publisher at any time and for any
reason. Sub-Publishers must meet the same criteria for approval as the
Publisher as set forth in the Agreement and must comply with all the terms and
conditions that are applicable to Publisher under the Agreement and the
applicable Program terms. Publisher is responsible for and shall fully and
unconditionally indemnify Company for any and all acts or omissions of any of
its Sub-Publishers, including the payment of legal fees and costs if necessary.
Further, Company may, at its sole discretion, terminate Publisher at any time
based on the acts and/or omissions of Publisher's Sub-Publisher(s). Once
express approval of a Sub-Publisher has been granted by Company, notices to
Publisher shall be deemed notice to that Publisher's approved Sub-Publisher(s).
Company reserves the right to withhold or refuse payment to Publisher in the
event that any of its Sub-Publishers breach the Agreement.
The
Agreement shall be construed and governed by the laws of the State of Washington,
without regard to its conflict of laws principles. Any and all disputes or
controversies whether of law or fact of any nature whatsoever arising from or
respecting the Agreement shall be decided by arbitration by the American Arbitration
Association ("Arbitrator"), in accordance with the then current
Commercial Rules of the Arbitrator. Arbitration shall take place in Seattle,
Washington. At the request of Company, arbitration proceedings will be
conducted in secrecy. In such case, all documents, testimony and records shall
be received, heard and maintained by Arbitrator in secrecy under seal,
available for the inspection only by Company or Publisher and by their
respective attorneys who shall have agreed, in advance and in writing, to
receive all such information confidentially and to maintain such information in
secrecy. Arbitrator shall be able to decree any and all relief of an equitable
nature including, but not limited to, such relief as a temporary restraining
order, a temporary and/or a permanent injunction, and shall also be able to
award damages, with or without an accounting and costs. Company shall be
entitled to an award of its reasonable costs and expenses, including attorneys'
fees, in any action or proceeding in connection with, arising out of, or under
the Agreement. Nothing contained herein shall prevent either Party from seeking
injunctive relief pending an outcome in arbitration. The Agreement shall not be
governed by the United Nations Convention on Contracts for the Sale of Goods.
To the extent permitted by law, You agree that You will not bring, join or
participate in any class action lawsuit as to any claim, dispute or controversy
that You may have against Company, its employees, officers, directors, members,
representatives and/or assigns. You agree to the entry of injunctive relief to
stop such a lawsuit or to remove You as a participant in the suit. You agree to
pay the attorneys’ fees and court costs that Company incurs in seeking such
relief.
15.
Severability.
If any provision of the Agreement is held to be invalid, illegal or
unenforceable for any reason, such invalidity, illegality or unenforceability
shall not effect any other provisions of the Agreement, and the Agreement shall
be construed as if such invalid, illegal or unenforceable provision had not
been contained herein.
16.
Force Majeure.
Neither Party shall be liable to the other by reason of failure or delay in the
performance of its obligations hereunder on account of telecommunications,
Internet or network failure or interruption, interruption or failure of
telecommunication or digital transmission links, results of computer hacking,
hostile network attacks, the unavailability, operation, or inaccessibility of
websites or interfaces, network congestion or other failures, Acts of God,
fires, storms, war, governmental action, labor conditions, earthquakes, natural
disasters or any other cause which is beyond the reasonable control of such
Party. Publisher understands and agrees that on occasion that the Service
and/or Website may be inaccessible, unavailable or inoperable for any reason
including, but not limited to, the following: (i) equipment malfunctions; (ii)
periodic maintenance procedures or repairs; or (iii) causes beyond the control
of Company or which are not reasonably foreseeable by Company including, but
not limited to, the aforementioned force majeure events. Company will attempt
to provide the Service on a continuous basis. However, Publisher acknowledges
and agrees that Company has no control over the availability of the Service on
a continuous or uninterrupted basis. The terms of the Agreement are subject to
Company hardware, software, and bandwidth traffic limitations. Company's
failure to deliver because of technical difficulties does not represent a
failure to meet the obligations of the Agreement.
17.
Attorneys' Fees.
Company shall be entitled to an award of its reasonable costs and expenses,
including attorneys' fees, in any action or proceeding arising out of the
Agreement.
18.
Miscellaneous.
You agree that any unauthorized and/or unlawful use of the Website, Service,
Creative, Offers, Website Data and/or Programs would result in irreparable
injury to Company for which monetary damages would be inadequate. In such
event, Company shall have the right, in addition to other remedies available to
it pursuant to the Agreement, to immediate injunctive relief against You
without the need to post a bond. Nothing contained in the Agreement shall be
construed to limit any legal remedies available to Company. The Agreement,
together with the AUPs and Privacy Policy, contains the sole and entire
agreement and understanding between the Parties relating to the subject matter
hereof, and merges all prior discussions, whether through officers, directors,
salespersons, employees or consultants. Each Party is an independent contractor
and not a partner, joint venturer or employee of the other. Neither Party shall
have the right to bind the other or to incur any obligation on the other’s
behalf. All notices shall be sent to the addresses submitted by You when
signing up for the service by certified mail, fax, email or courier. Company’s
failure to enforce any provision of the Agreement shall not be deemed a waiver
of such provision nor of the right to enforce such provision. Company reserves
the right to change any of the terms and/or conditions of the Agreement at any
time, with or without notice to You.