Terms and Condition
Terms and Conditions for Advertisers
“Ad” means any advertisement provided by Advertiser or Agency on behalf of an Advertiser.
“Advertisement” means specifically combined and used Advertising Materials.
“Advertiser” means the company, which is pointed as the Advertiser in the applicable IO or Agency acting on behalf of such company (when the Advertiser is not pointed directly by the Agency, so we consider Agency as the Advertiser himself), or any other entity which provides Advertising Materials and is recognised by company as Advertiser due to the fulfilment of the applicable IO.
“Advertising Materials” means artwork, copy, active URLs for Ads, any other type of ads, tags, texts or visual materials, which should and can be used in the Campaign and which the Advertiser/Agency has rights for.
“Affiliate” means, as to an entity, any other entity directly or indirectly controlling, controlled by, or under common control with, such entity.
“Agency” means the advertising agency listed on the applicable IO or, in cases when we have direct IO with the Advertiser and the relevant article of these Terms does not divide rights and obligations of Advertiser and Agent, the term may mean Advertiser himself.
“Campaign” means the set of Advertising Materials provided by Advertiser and promoted by Media Company which results in a certain amount of Deliverables.
“CPA Deliverables” means Deliverables sold on a cost per acquisition basis.
“CPI Deliverables” means Deliverables sold on a cost per install basis.
“CPL Deliverables” means Deliverables sold on a cost per lead basis.
“CPM Deliverables” means Deliverables sold on a cost per thousand-impression basis.
“Deliverable” or “Deliverables” means the inventory delivered by Media Company (e.g., impressions, clicks, or other desired actions).
“IO” means a mutually agreed insertion order that incorporates these Terms, under which Media Company will deliver Ads on Sites for the benefit of Agency or Advertiser.
“Media Company” means the publisher listed on the applicable IO.
“Media Company Properties” are websites or other means, platforms etc., which are used to fulfill the applicable IO and are owned, operated, or controlled by Media Company.
“Network Properties” means websites or other means, platforms etc. which are used to fulfill the applicable IO and are not owned, operated, or controlled by Media Company, but on which Media Company has direct or indirect (through intermediaries, other publishers, media companies and contracts of such companies with any third parties) contractual right to serve Ads.
“Policies” means advertising criteria or specifications made conspicuously available, including content limitations, technical specifications, privacy policies, user experience policies, policies regarding consistency with Media Company’s public image, community standards regarding obscenity or indecency (taking into consideration the portion(s) of the Site on which the Ads are to appear), other editorial or advertising policies, and Advertising Materials due dates.
“Platform” means a software solution owned by Media Company used for managing and serving campaigns, tracking, aggregating statistics, and interacting with clients and affiliates.
“Representative” means, as to an entity and/or its Affiliate(s), any director, officer, employee, consultant, contractor, agent, and/or attorney.
“Site” or “Sites” means Media Company Properties, Platform and Network Properties.
“Terms” means these Terms and Conditions.
“Third Party” means an entity or person that is not a party to an IO; for purposes of clarity, Media Company, Agency, Advertiser, and any Affiliates or Representatives of the foregoing are not Third Parties.
“Third Party Ad Server” means a Third Party that will serve and/or track Ads.
I. INSERTION ORDERS AND INVENTORY AVAILABILITY
a. IO Details. Media Company and Agency may execute IOs that will be accepted as set forth in Section I(b). As applicable, each IO will specify information that the parties will consider necessary for execution of such IO.
b. Availability; Acceptance. Media Company will make commercially reasonable efforts to notify Agency within seven (7) business days of receipt of an IO signed by Agency if the specified inventory is not available. Acceptance of the IO and these Terms will be deemed the earlier of (i) written (which, unless otherwise specified, for purposes of these Terms, will include paper, fax, or e-mail communication) approval of the IO by Media Company and Agency, or (ii) the display of the first Ad impression by Media Company, unless otherwise agreed on the IO. Notwithstanding the foregoing, modifications to the originally submitted IO will not be binding unless approved in writing by both Media Company and Agency.
c. Revisions. Revisions to accepted IOs will be made in writing and acknowledged by the other party in writing.
II. AD PLACEMENT AND POSITIONING
a. Compliance with IO. Media Company will comply with the IO. About any exceptions the Agency will be informed in writing.
III. PAYMENT AND PAYMENT LIABILITY
a. Invoices. The payment is made in accordance with the invoices of the Media Company. Specific terms of payment should be agreed by the parties in IO.
b. Payment Date. Agency will make payment within the term specified in IO.
c. Payment Liability. Unless otherwise set forth by Agency on the IO, Agency is liable for payments for Ads placed in accordance with the IO. Upon request, Agency will make available to Media Company written confirmation of the relationship between Agency and Advertiser. This confirmation should include, for example, Advertiser’s acknowledgement that Agency is its agent and is authorized to act on its behalf in connection with the IO and these Terms.
a. Confirmation of Campaign Initiation. Media Company will, within seven (7) business days of the start date on the IO, provide confirmation to Agency, either electronically or in writing, stating whether the components of the IO have begun delivery.
b. Media Company Reporting. Terms of reporting are specified in the applicable IO.
V. CANCELLATION AND TERMINATION
a. Without Cause. Unless designated on the IO as non-cancelable, Advertiser and/ or Media Company may cancel the entire IO, or any portion thereof not later than 30 days prior to the termination date. Advertiser will remain liable to Media Company for amounts due for any custom content or development (“Custom Material”) and Deliverables provided to Advertiser or completed by Media Company or its third-party vendor prior to the effective date of termination. For IOs that contemplate the provision or creation of Custom Material, Media Company will specify the amounts due for such Custom Material as a separate line item. Advertiser will pay for such Custom Material within 30 days from receiving an invoice therefore.
b. For Cause. Either Media Company or Agency may terminate an IO at any time if the other party is in material breach of its obligations hereunder, which breach is not cured within 10 days after receipt of written notice thereof from the non-breaching party, except as otherwise stated in these Terms with regard to specific breaches. Additionally, if Agency or Advertiser breaches its obligations by violating the Policy three times (and such Policy was provided to Agency or Advertiser) and receives timely notice of each such breach, even if Agency or Advertiser cures such breaches, then Media Company may terminate the IO or placements associated with such breach upon written notice. If Agency or Advertiser does not cure a violation of a Policy within the applicable 10-day cure period after written notice, where such Policy had been provided by Media Company to Agency, then Media Company may terminate the IO and/or placements associated with such breach upon written notice.
VI. FORCE MAJEURE
a. Generally. Excluding payment obligations, neither Agency nor Media Company will be liable for delay or default in the performance of its respective obligations under these Terms if such delay or default is caused by conditions beyond its reasonable control, including, but not limited to, fire, flood, accident, earthquakes, telecommunications line failures, electrical outages, network failures, acts of God, or labor disputes (“Force Majeure event”).
VII. AD MATERIALS
a. Submission. Agency will submit Advertising Materials pursuant to IO in accordance with Media Company’s then-existing Policies. Media Company’s remedies for a breach of this provision will be determined by Media Company.
b. Compliance. Media Company reserves the right within its discretion to reject or remove from its Site any Ads for which the Advertising Materials, software code associated with the Advertising Materials (e.g. pixels, tags, scripts etc.), or the website to which the Ad is linked do not comply with its Policies, or that in Media Company’s sole reasonable judgment, do not comply with any applicable law, regulation, or other judicial or administrative order.
c. Damaged Creative. If Advertising Materials provided by Agency are damaged, not comply to Media Company’s specifications, or otherwise unacceptable, Media Company will use commercially reasonable efforts to notify Agency within seven (7) business days of its receipt of such Advertising Materials.
d. No Modification. Media Company will not edit or modify the submitted Ads in any way, including, but not limited to, resizing the Ad, without Agency’s approval. Media Company will use all Ads in strict compliance with these Terms and any written instructions provided on the IO.
e. Ad Tags. When applicable, Third Party Ad Server tags will be implemented so that they are functional in all aspects.
f. Trademark Usage. Limited License & Intellectual Property. Media Company, on the one hand, and Agency and Advertiser, on the other, may use the other’s trade name, trademarks, logos, or Ads in any public announcement (including, but not limited to, in any press release) regarding such cooperation.
As well Advertiser grants Media Company and its partners, affiliates, third-party publishers and media companies a nonexclusive, limited, worldwide, royalty-free, revocable license to market, display, perform, copy, transmit, distribute, and promote the Ads in connection with its obligations hereunder.
Media Company and its partners, affiliates, third-party publishers and media companies may alter, modify, manipulate or create derivative works of the Ads or any Advertiser’s graphics, creative, copy or other materials owned by, or licensed to, Advertiser in any way. Media Company and its partners, affiliates, third-party publishers and media companies is entitled to use the Ads to the extent that pointed in the IO.
a. By Media Company. Media Company will defend, indemnify, and hold harmless Agency, Advertiser, and each of its Affiliates and Representatives from damages, liabilities, costs, and reasonable expenses (collectively, “Losses”) resulting from any claim, judgment, or proceeding (collectively, “Claims”) brought by a Third Party and resulting from Media Company’s alleged breach of Section X, (ii) Advertising Materials provided by Media Company for an Ad (and not by Agency, Advertiser, and/or each of its Affiliates and/or Representatives) (“Media Company Advertising Materials”) that: (A) violate any applicable law, regulation, judicial or administrative action, or the right of a Third Party; or (B) are defamatory or obscene. Notwithstanding the foregoing, Media Company will not be liable for any Losses resulting from Claims to the extent that such Claims result from (1) Media Company’s customization of Ads or Advertising Materials based upon detailed specifications, materials, or information provided by the Advertiser, Agency, and/or each of its Affiliates and/or Representatives, or (2) a user viewing an Ad outside of the targeting set forth on the IO, which viewing is not directly attributable to Media Company’s serving such Ad in breach of such targeting.
b. By Advertiser. Advertiser will defend, indemnify, and hold harmless Media Company and each of its Affiliates and Representatives from Losses resulting from any Claims brought by a Third Party resulting from (i) Advertiser’s alleged breach of Section X or of Advertiser’s representations and warranties in Section XII, (ii) Advertiser’s violation of Policies (to the extent the terms of such Policies have been provided (e.g., by making such Policies available by providing a URL) via email or other affirmative means, to Agency or Advertiser at least 7 days prior to the violation giving rise to the Claim), or (iii) the content or subject matter of any Ad or Advertising Materials to the extent used by Media Company in accordance with these Terms or an IO.
c. By Agency. Agency represents and warrants that it has the authority as Advertiser’s agent to bind Advertiser to these Terms and each IO, and that all of Agency’s actions related to these Terms and each IO will be within the scope of such agency. Agency will defend, indemnify, and hold harmless Media Company and each of its Affiliates and Representatives from Losses resulting from (i) Agency’s alleged breach of the foregoing sentence, or (ii) Claims brought by a Third Party alleging that Agency has breached its express, Agency-specific obligations under Section X.
d. Procedure. The indemnified party(s) will promptly notify the indemnifying party of all Claims of which it becomes aware (provided that a failure or delay in providing such notice will not relieve the indemnifying party’s obligations except to the extent such party is prejudiced by such failure or delay), and will: (i) provide reasonable cooperation to the indemnifying party at the indemnifying party’s expense in connection with the defense or settlement of all Claims; and (ii) be entitled to participate at its own expense in the defense of all Claims. The indemnified party(s) agrees that the indemnifying party will have sole and exclusive control over the defense and settlement of all Claims; provided, however, the indemnifying party will not acquiesce to any judgment or enter into any settlement, either of which imposes any obligation or liability on an indemnified party(s) without its prior written consent.
IX. LIMITATION OF LIABILITY
Excluding Agency’s, Advertiser’s, and Media Company’s respective obligations under Section VIII, damages that result from a breach of Section X, or intentional misconduct by Agency, Advertiser, or Media Company, in no event will any party be liable for any consequential, indirect, incidental damages whatsoever, including, but not limited to, damages for loss of profits, business interruption, loss of information, and the like, incurred by another party arising out of an IO, even if such party has been advised of the possibility of such damages.
X: NON-DISCLOSURE, DATA USAGE AND OWNERSHIP, PRIVACY AND LAWS
a. Definitions and Obligations. “Confidential Information” will include (i) all information marked as “Confidential,” “Proprietary,” or similar legend by the disclosing party (“Discloser”) when given to the receiving party (“Recipient”); and (ii) information and data provided by the Discloser, which under the circumstances surrounding the disclosure should be reasonably deemed confidential or proprietary. Without limiting the foregoing, Discloser and Recipient agree that each Discloser’s contribution to IO Details (as defined below) shall be considered such Discloser’s Confidential Information. Recipient will protect Confidential Information in the same manner that it protects its own information of a similar nature, but in no event with less than reasonable care. Recipient shall not disclose Confidential Information to anyone except an employee, agent, Affiliate, or third party who has a need to know same, and who is bound by confidentiality and non-use obligations at least as protective of Confidential Information as are those in this section. Recipient will not use Discloser’s Confidential Information other than as provided for on the IO.
b. Exceptions. Notwithstanding anything contained herein to the contrary, the term “Confidential Information” will not include information which: (i) was previously known to Recipient; (ii) was or becomes generally available to the public through no fault of Recipient; (iii) was rightfully in Recipient’s possession free of any obligation of confidentiality at, or prior to, the time it was communicated to Recipient by Discloser; (iv) was developed by employees or agents of Recipient independently of, and without reference to, Confidential Information; or (v) was communicated by Discloser to an unaffiliated third party free of any obligation of confidentiality. Notwithstanding the foregoing, the Recipient may disclose Confidential Information of the Discloser in response to a valid order by a court or other governmental body, as otherwise required by law or the rules of any applicable securities exchange, or as necessary to establish the rights of either party under these Terms; provided, however, that both Discloser and Recipient will stipulate to any orders necessary to protect such information from public disclosure.
c. Additional Definitions. As used herein the following terms shall have the following definitions:
i. “User Volunteered Data” is personally identifiable information collected from individual users by Media Company during delivery of an Ad pursuant to the IO.
ii. “IO Details” are details set forth on the IO but only when expressly associated with the applicable Discloser.
iii. “Performance Data” is data regarding a campaign gathered during delivery of an Ad pursuant to the IO (e.g., number of impressions, interactions, clicks, actions, conversions), but excluding Site Data or IO Details.
iv. “Site Data” is any data that is (A) preexisting Media Company data used by Media Company pursuant to the IO; (B) gathered pursuant to the IO during delivery of an Ad that identifies or allows identification of Media Company, Media Company’s Site, Platform, brand, content, context, or users as such; or (C) entered by users on any Media Company Site other than User Volunteered Data.
v. “Collected Data” consists of IO Details, Performance Data, and Site Data.
vi. “Repurposing” means retargeting a user or appending data to a non-public profile regarding a user for purposes other than performance of the IO.
vii. “Aggregated” means a form in which data gathered under an IO is combined with data from numerous campaigns of numerous Advertisers and precludes identification, directly or indirectly, of an Advertiser.
d. Use of Collected Data.
i. Unless otherwise authorized by Media Company, Advertiser will not: (A) use Collected Data for Repurposing; provided, however, that Performance Data may be used for Repurposing so long as it is not joined with any IO Details or Site Data; (B) disclose IO Details of Media Company or Site Data to any Affiliate or Third Party except as set forth in Section X(d)(iii). ii. Unless otherwise authorized by Agency or Advertiser, Media Company will not use or disclose IO Details of Advertiser, Performance Data, or a user’s recorded view, click or other action related to an Ad, each of the foregoing on a non-Aggregated basis, for Repurposing or any purpose other than performing under the IO, compensating data providers in a way that precludes identification of the Advertiser, or internal reporting or internal analysis. iii. Advertiser, Agency, and Media Company (each a “Transferring Party”) will require any Third Party or Affiliate used by the Transferring Party in performance of the IO on behalf of such Transferring Party to be bound by confidentiality and non-use obligations at least as restrictive as those on the Transferring Party, unless otherwise set forth in the IO.
g. Compliance with Law. Agency, Advertiser, and Media Company will at all times comply with all federal, state, and local laws, ordinances, regulations, and codes which are applicable to their performance of their respective obligations under the IO.
h. Agency Use of Data. Agency will not: (i) use Collected Data unless Advertiser is permitted to use such Collected Data, nor (ii) use Collected Data in ways that Advertiser is not allowed to use such Collected Data. Notwithstanding the foregoing or anything to the contrary herein, the restrictions on Advertiser in Section XII(d)(i) shall not prohibit Agency from (A) using Collected Data on an Aggregated basis for internal media planning purposes only (but not for Repurposing), or (B) disclosing qualitative evaluations of Aggregated Collected Data to its clients and potential clients.
XI. THIRD PARTY AD SERVING AND TRACKING (APPLICABLE IF THIRD PARTY AD SERVER IS USED)
a. Ad Serving and Tracking. Media Company will track delivery through its Platform and, provided that Media Company has approved in writing a Third Party Ad Server to run on its properties, Agency will track delivery through such Third Party Ad Server. Agency may not substitute the specified Third Party Ad Server without Media Company’s prior written consent.
b. Controlling Measurement. If both parties are tracking delivery, the measurement used for invoicing advertising fees under an IO (“Controlling Measurement”) will be based on Advertiser’s ad server, unless otherwise agreed by Agency and Media Company in writing.
c. Ad Server Reporting Access. As available, the party responsible for the Controlling Measurement will provide the other party with online or automated access to relevant and non-proprietary statistics from the ad server within one (1) day after campaign launch. The other party will notify the party with Controlling Measurement if such party has not received such access. If such online or automated reporting is not available, the party responsible for the Controlling Measurement will provide placement-level activity reports to the other party in a timely manner, as mutually agreed to by the parties.
d. Discrepant Measurement. If the difference between the Controlling Measurement and the other measurement exceeds 10% over the invoice period, the parties will facilitate a reconciliation effort between Media Company and Third Party Ad Server measurements. If the discrepancy cannot be resolved and a good faith effort to facilitate the reconciliation has been made, Agency shall pay invoice based on Controlling Measurement of Advertiser’s ad server.
e. Measurement Methodology. Advertiser will make reasonable efforts to publish, and Agency will make reasonable efforts to cause the Third Party Ad Server to publish, a disclosure regarding their respective ad delivery measurement methodologies.
f. Third Party Ad Server Malfunction. Where Agency is using a Third Party Ad Server and that Third Party Ad Server cannot serve the Ad, Agency will have a one-time right to temporarily suspend delivery under the IO for a period of up to 24 hours. Upon written notification by Agency of a non-functioning Third Party Ad Server, Media Company will have 24 hours to suspend delivery. Following that period, Agency will not be held liable for payment for any Ad that runs within the immediately following 24-hour period until Media Company is notified that the Third Party Ad Server is able to serve Ads. After the 24-hour period passes and Agency has not provided written notification that Media Company can resume delivery under the IO, Advertiser will pay for the Ads that would have run, or are run, after the 24-hour period but for the suspension, and can elect Media Com
XII. REPRESENTATION AND WARRANTIES
a. Advertisers/Agency represents and warrants that ads are in compliant with all applicable laws and does not contain or promote, nor links to another website that contains libelous, defamatory, abusive, violent, prejudicial, obscene, sexually explicit or illegal content.
b. Advertiser/Agency represents and warrants not to promote within the IO, with the use of Sites and Platform any Ads of illegal substances or activities, pornographic, racial, ethnic, political, software pirating (e.g. Warez) or hacking, hate-mongering, or otherwise objectionable content.
c. Advertiser/Agency represents and warrants not to engage in any illegal activity, in accordance with state and federal law, whatsoever, is not allowed and owns the legal right to use and distribute all content, copyrighted material, products, and services displayed on ads.
d. Advertiser/Agency acknowledges that Media Company does not represent, warrant, or make any specific or implied promises as to the successful outcome of any Campaigns.
e. Each party will make every effort to uphold the highest ethical and commercial standards. Each party shall not engage in any Fraudulent Activity. Fraudulent Activity means any of the following: impressions stacking, pixel stuffing, domain spoofing, ad injection, generating click farms, auto-subscription, ad stuffing, click stacking, credit card fraud etc.
f. If any errors or undesirable results occur due to no fault of Media Company, Media Company shall not be responsible for losses and Advertiser/Agency may not be compensated.
g. Advertiser/Agency represents and warrants that he is the owner of or is licensed to use the content and subject matter contained in its advertising and collateral information, including, without limitation, (a) the names and/or pictures of persons; (b) any copyrighted material, trademarks, service marks, logos, and/or depictions thereof; and (c) any testimonials or endorsements contained in any advertisement submitted to Media Company. Furthermore, Advertiser represents and warrants that (i) it is compliant with all laws applicable to the conduct of its business including laws applicable to the advertising and offering of the goods and services which are the subject of the advertisements hereunder; and (ii) the use, reproduction and display of the advertisements and content will not violate or infringe or dilute in any manner any copyright, trademark, trade secret, patent or other intellectual property or other third-party right.
XIII. COMPLIANCE WITH LAW
a. Advertiser/Agent represents and warrants that Advertiser/Agent will not violate any applicable foreign or domestic, federal, state, or local statutes, laws, ordinances, rules and regulations, or industry standards, including without limitation, the CAN-SPAM Act .
b. Advertiser/Agent will make all necessary efforts to secure User Volunteered Data, Site Data and any personal data received during (or as a result of) the fulfillment of IO from Media company and will store and process such information in accordance with the legislation on the protection of personal data (including the legislation of the countries of origin of such personal data).
XIV. DISPUTE RESOLUTION. APPLICABLE LAW
a. A party who intends to seek dispute resolution must first send to the other a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute and setting forth the specific relief sought. All Notices to Media Company shall be sent to the address (including email) specified in IO. Upon receipt of a Notice, the other party shall have a thirty-day (30) period in which it may satisfy the claim against it by fully curing the dispute and/or providing all the relief requested in the Notice. After the expiration of such thirty-day (30) cure period, you or Company may commence suit.
b. Relations between parties and all IOs will be governed by the laws of the State of New Delhi, India.
c. Media Company and Agency (on behalf of itself and Advertiser) agree that any claims, legal proceedings, or litigation arising in connection with the IO (including these Terms) will be brought solely in California, and the parties consent to the jurisdiction of such courts.
A. Necessary Rights. Media Company represents and warrants that Media Company has all necessary permits, licenses, and clearances to sell the Deliverables specified on the IO subject to these Terms. Advertiser/Agency represents and warrants that Advertiser/Agency has all necessary licenses and clearances to use the content contained in the Ads and Advertising Materials as specified on the IO and subject to these Terms, including any applicable Policies.
a. Necessary Rights. Media Company represents and warrants that Media Company has all necessary permits, licenses, and clearances to sell the Deliverables specified on the IO subject to these Terms. Advertiser/Agency represents and warrants that Advertiser/Agency has all necessary licenses and clearances to use the content contained in the Ads and Advertising Materials as specified on the IO and subject to these Terms, including any applicable Policies.
B. Assignment. Neither Agency nor Advertiser may resell, assign, or transfer any of its rights or obligations hereunder, and any attempt to resell, assign, or transfer such rights or obligations without Media Company’s prior written approval will be null and void. All terms and conditions in these Terms and each IO will be binding upon and inure to the benefit of the parties hereto and their respective permitted transferees, successors, and assigns.
C. Entire Agreement. Each IO (including the Terms) will constitute the entire agreement of the parties with respect to the subject matter thereof and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to the subject matter of the IO. The IO may be executed in counterparts, each of which will be an original, and all of which together will constitute one and the same document.
D. Conflicts; Amendment. In the event of any inconsistency between the terms of an IO and these Terms, the terms of the IO will prevail. Modification of these Terms by the Media Company will be binding. If any provision herein is held to be unenforceable, the remaining provisions will remain in full force and effect. All rights and remedies hereunder are cumulative.
E. Notice. Any notice required to be delivered hereunder will be deemed delivered three days after deposit, postage paid, in U.S. mail, return receipt requested, one business day if sent by overnight courier service, and immediately if sent electronically or by fax. All notices to Media Company and Agency will be sent to the contact as noted on the IO. All notices to Advertiser will be sent to the address specified on the IO.
F. Survival. Sections III, V, VIII, IX, X, XII, XIII, XIV and XV will survive termination or expiration of these Terms, and Section IV will survive for 30 days after the termination or expiration of these Terms. In addition, each party will promptly return or destroy the other party’s Confidential Information upon written request and remove Advertising Materials and Ad tags upon termination of these Terms.
G. Headings. Section or paragraph headings used in these Terms are for reference purposes only, and should not be used in the interpretation hereof.
Terms and Conditions for Publishers
These Terms and Conditions (this “Agreement”) are made and entered into by and between Company ADZ VENTURES MEDIA PRIVATE LIMITED, and you, (“you” or “Affiliate”), the party submitting an application to become an Company affiliate. This Agreement governs your participation in the affiliate program of Company (“Affiliate Program”). Each Affiliate Program offer (an “Offer”) may be for any offering by Company or a third party (a “Client”) and may link to a specific web source or application for that particular Offer (“Landing Page”). Furthermore, each Offer may have additional terms and conditions on pages within the Affiliate Program that are incorporated as part of this Agreement. By submitting an application or participating in an Offer, you consent to all the terms and conditions of this Agreement and the additional terms and conditions on pages within the Affiliate Program.
1. ENROLLMENT IN THE AFFILIATE PROGRAM
You agree to accurately complete the application to become an affiliate, provide us with updates to the application, and agree not to use any aliases or other means to mask your true identity or contact information. After we review your application, we will notify you of your acceptance or rejection to the Affiliate Program, generally within two (2) business days. We may accept or reject your application at our sole discretion for any reason.
2. GOVERNING AGREEMENTS
3. OBLIGATIONS OF THE PARTIES
Except as otherwise provided in this Agreement or with the consent of Company, you agree that all information, including, without limitation, the terms of this Agreement, business and financial information, clients and affiliates lists, and pricing and sales information, concerning us or any of our affiliates provided by or on behalf of any of them shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by you for any purpose other than your participation in the Affiliate Program, except and solely to the extent that any such information is generally known or available to the public through a source other than you. Affiliate shall not use any information obtained from the Affiliate Program to develop, enhance or operate a service that competes with the Affiliate Program, or assist another party to do the same. Any credit references are issued only after parties agreed that in writing. No part of the Software, conversation, invoices, payment notifications and other financial information can be used by Affiliates as a credit reference from Company.
5. LIMITED LICENSE & INTELLECTUAL PROPERTY
We grant you a nonexclusive, non-transferable, revocable right to use the Links and to access our web site through the Links solely in accordance with the terms of this Agreement and Insertion Order for the sole purpose of identifying your Media as a participant in the Affiliate Program and assisting in increasing sales through the Landing Page. You may not alter, modify, manipulate or create derivative works of the Links or any Company graphics, creative, copy or other materials owned by, or licensed to, Company in any way. You are only entitled to use the Links to the extent that you are a member in good standing of the Affiliate Program. We may revoke your account at anytime by giving you a written notice. Except as expressly stated herein, nothing in this Agreement is intended to grant you any rights to any of Company’s trademarks, service marks, copyrights, patents or trade secrets. You agree that Company may use any suggestion, comment or recommendation you choose to provide to Company without compensation. All rights not expressly granted in this Agreement are reserved by Company.
This Agreement shall commence on the date of our approval of your Affiliate Program application and shall continue thereafter until terminated as provided herein. You may terminate your participation in the Affiliate Program at any time by removing all Links from your Media, deleting all copies of the Links. We may terminate your participation in one or more Offers or this Agreement at any time and for any reason which we deem appropriate with or without prior notice to you by disabling the Links or providing you with a written notice. Upon termination of your participation in one or more Offers or this Agreement for any reason, you will immediately stop running all Advertising Campaigns and delete all Links, plus all Company or Client intellectual property, and will cease representing yourself as a Company or Client affiliate for such one or more Offers. All rights to validly accrued payments, causes of action and any provisions, which by their terms are intended to survive termination, shall survive any termination.
In addition to any other rights and remedies available to us under this Agreement Company reserves the right to delete any actions submitted through your Links and withhold and freeze any unpaid Commissions or charge back paid Commissions to your account if (i) Company determines that you have violated this Agreement, (ii) Company receives any complaints about your participation in the Affiliate Program which Company reasonably believes to violate this Agreement or (iii) any Qualified Action is later determined to have not met the requirements set forth in this Agreement or on the Affiliate Program. Such withholding or freezing of Commissions, or charge backs for paid Commissions, shall be without regard as to whether or not such Commissions were earned as a result of such breach. In the event of a material breach of this Agreement, Company reserves the right to disclose your identity and contact information to appropriate law enforcement or regulatory authorities or any third party that has been directly damaged by your actions.
8. E-MAIL & TEXT MESSAGING PRACTICES; ANTI-SPAM POLICY; TCPA COMPLIANCE
You are expressly prohibited from using any persons, means, devices or arrangements to commit fraud, violate any applicable law, interfere with other affiliates or falsify information in connection with referrals through the Links or the generation of Commissions or exceed your permitted access to the Affiliate Program. Such acts include, but are in no way limited to, Company shall make all determinations about fraudulent activity in its sole discretion. If you fraudulently add leads or clicks or inflate leads or clicks by fraudulent traffic generation (as determined solely by Company, such as pre-population of forms or mechanisms not approved by Company), you will forfeit your entire commission for all programs and your account will be terminated. Company reserves the sole judgment in determining fraud, and you agree to this clause. It is the obligation of the Affiliate to prove to Company that they are NOT committing fraud. Company will withhold your payment until you have satisfactorily provided evidence that you are not defrauding the system. Company may determine an activity as a fraud when you (1) have click-through rates that are much higher than industry averages and where solid justification is not evident; (2) have only click programs generating clicks with no indication by site traffic that it can sustain the clicks reported; (3) have shown fraudulent leads as determined by Company clients; (4) use fake redirects, automated software, and/or fraud to generate clicks or leads from our programs; or (5) use automated means to increase the number of clicks through the Links or completion of any required information, spyware, stealware, cookie-stuffing or any other deceptive acts or click-fraud..
10. REPRESENTATIONS AND WARRANTIES
You hereby represent and warrant that this Agreement constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms and that you have the authority to enter into this Agreement. Subject to the other terms and conditions of this Agreement, Company represents and warrants that it shall not knowingly violate any law, rule or regulation which is applicable to Company’s own business operations or Company’s proprietary products or services.
In addition to any notice permitted to be given under this Agreement, we may modify any of the terms and conditions of this Agreement at any time by providing you with a notification by email. The changes will become effective ten (10) business days after such notice. If the modifications are unacceptable to you, you may terminate this Agreement without penalty solely on the account of such termination within such ten (10) business day period. Your continued participation in this Affiliate Program ten (10) business days after a change notice has been posted will constitute your acceptance of such change. In addition, Company may change, suspend or discontinue any aspect of an Offer or Link or remove, alter, or modify any tags, text, graphic or banner ad in connection with a Link. Affiliate agrees to promptly implement any request from Company to remove, alter or modify any Link, graphic or banner ad that is being used by Affiliate as part of the Affiliate Program.
12. INDEPENDENT INVESTIGATION
You acknowledge that you have read this Agreement and agree to all its terms and conditions. You have independently evaluated the desirability of participating in the Affiliate Program and each Offer and are not relying on any representation, guarantee or statement other than as set forth in this Agreement or on the Affiliate Program.
13. MUTUAL INDEMNIFICATION
Affiliate hereby agrees to indemnify, defend and hold harmless Company and Clients and their respective subsidiaries, affiliates, partners and licensors, directors, officers, employees, owners and agents against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys’ fees and costs) based on (i) any failure or breach of this Agreement, including any representation, warranty, covenant, restriction or obligation made by Affiliate herein, (ii) any misuse by Affiliate, or by a party under the reasonable control of Affiliate or obtaining access through Affiliate, of the Links, Offers or Company or Client intellectual property, or (iii) any claim related to your Media, including but not limited to, the content contained on such Media (except for the Links). Company hereby agrees to indemnify, defend and hold harmless Affiliate and its subsidiaries, affiliates, partners, and their respective directors, officers, employees, owners and agents against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys’ fees and costs) based on a claim that Company is not authorized to provide you with the Links.
THE AFFILIATE PROGRAM AND LINKS, AND THE PRODUCTS AND SERVICES PROVIDED IN CONNECTION THEREWITH, ARE PROVIDED TO AFFILIATE “AS IS”. EXCEPT AS EXPRESSLY SET FORTH HEREIN, COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. COMPANY DOES NOT WARRANT THAT THE AFFILIATE PROGRAM OR LINKS WILL MEET AFFILIATE’S SPECIFIC REQUIREMENTS OR THAT THE OPERATION OF THE AFFILIATE PROGRAM OR LINKS WILL BE COMPLETELY ERROR- FREE OR UNINTERRUPTED. COMPANY EXPRESSLY DISCLAIMS ANY LIABILITY FOR ANY ACT OR OMISSION OF A CLIENT OR THEIR PRODUCTS OR SERVICES. COMPANY DOES NOT GUARANTEE THAT AFFILIATE WILL EARN ANY SPECIFIC AMOUNT OF COMMISSIONS.
15. LIMITATION OF LIABILITY
IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY UNAVAILABILITY OR INOPERABILITY OF THE LINKS, PROGRAM WEB SITES, TECHNICAL MALFUNCTION, COMPUTER ERROR, CORRUPTION OR LOSS OF INFORMATION, OR OTHER INJURY, DAMAGE OR DISRUPTION OF ANY KIND BEYOND THE REASONABLE CONTROL OF COMPANY. IN NO EVENT WILL COMPANY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PERSONAL INJURY / WRONGFUL DEATH, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS OR LOSS OF BUSINESS OPPORTUNITY, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. COMPANY’S CUMULATIVE LIABILITY TO AFFILIATE, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE AMOUNTS PAID TO AFFILIATE BY OFFERSEVEN LLC IN COMMISSIONS DURING THE SIX (6) MONTHS IMMEDIATELY PRIOR TO SUCH CLAIM.
16. COMPLIANCE WITH LAW
You agree that you will not violate any applicable foreign or domestic, federal, state, or local statutes, laws, ordinances, rules and regulations, or industry standards, including without limitation.
17. GOVERNING LAW & MISCELLANEOUS
Affiliate shall be responsible for the payment of all attorneys fees and expenses incurred by Company to enforce the terms of this Agreement. This Agreement contains the entire agreement between Company and Affiliate with respect to the subject matter hereof, and supersedes all prior and/or contemporaneous agreements or understandings, written or oral. Affiliate agrees that Company shall not be subject to or bound by any Affiliate insertion order or online terms and conditions that amend, conflict with or supplement this Agreement, regardless of whether Company “clicks through” or otherwise indicates its acceptance thereof. Affiliate may not assign all or any part of this Agreement without Company’s prior written consent. Company may assign this Agreement at any time with notice to Affiliate. This Agreement will be binding on and will inure to the benefit of the legal representatives, successors and valid assigns of the parties hereto. Any accrued payment obligations shall survive the termination of this Agreement. Except as set forth in the “Modifications” section above, this Agreement may not be modified without the prior written consent of both parties. If any provision of this Agreement is held to be void, invalid or inoperative, the remaining provisions of this Agreement shall continue in effect and the invalid portion of any provision shall be deemed modified to the least degree necessary to remedy such invalidity while retaining the original intent of the parties. Each party to this Agreement is an independent contractor in relation to the other party with respect to all matters arising under this Agreement. Nothing herein shall be deemed to establish a partnership, joint venture, association or employment relationship between the parties. No course of dealing nor any delay in exercising any rights hereunder shall operate as a waiver of any such rights. No waiver of any default or breach shall be deemed a continuing waiver or a waiver of any other breach or default. By submitting an application to Affiliate Program, you affirm and acknowledge that you have read this Agreement in its entirety and agree to be bound by all of its terms and conditions. If you do not wish to be bound by this Agreement, you should not submit an application to Affiliate Program. If an individual is accessing this Agreement on behalf of a business entity, by doing so, such individual represents that they have the legal capacity and authority to bind such business entity to this Agreement. Relations between parties and all IOs will be governed by the laws of the State of California, USA.
18. FORCE MAJEURE
An event of force majeure is an event or circumstance which is beyond the control and without the fault or negligence of the party affected and which by the exercise of reasonable diligence the party affected was unable to prevent provided that event or circumstance is limited to the following: (i) riot, war, invasion, act of foreign enemies, hostilities (whether war be declared or not), acts of terrorism, civil war, rebellion, revolution, insurrection of military or usurped power, requisition or compulsory acquisition by any governmental or competent authority; (ii) earthquakes, flood, fire or other physical natural disaster, but excluding weather conditions regardless of severity; and (iii) strikes at national level or industrial disputes at a national level, or strike or industrial disputes by labour not employed by the affected party, its subcontractors and which affect an essential portion of the works but excluding any industrial dispute which is specific to the performance of the works or this contract. Neither party is responsible for any failure to perform its obligations under this contract, if it is prevented or delayed in performing those obligations by an event of force majeure. Where there is an event of force majeure, the party prevented from or delayed in performing its obligations under this contract must immediately notify the other party giving full particulars of the event of force majeure and the reasons for the event of force majeure preventing that party from, or delaying that party in performing its obligations under this contract and that party must use its reasonable efforts to mitigate the effect of the event of force majeure upon its or their performance of the contract and to fulfil its or their obligations under the contract. An event of force majeure does not relieve a party from liability for an obligation which arose before the occurrence of that event, nor does that event affect the obligation to pay money in a timely manner which matured prior to the occurrence of that event.
19. DISPUTE RESOLUTION
You agree that any claim or dispute between you and Company arising out of or relating in any way to this Agreement will be resolved through final, binding arbitration. This obligation applies regardless of whether the claim or dispute involves a tort, fraud, breach of contract, misrepresentation, product liability, negligence, violation of a statute, or any other legal or equitable theory. Included are all claims arising out of or relating to any aspect of our relationship, claims that may arise after the termination of this Agreement. You agree that each of us may bring claims against the other only in an individual capacity and not in a class action or representative proceeding. All arbitrations under this Agreement shall be conducted on an individual (and not a class-wide) basis and an arbitrator shall have no authority to award class-wide relief. You acknowledge and agree that this Agreement specifically prohibits you from commencing arbitration proceedings as a representative of others or joining in any arbitration proceedings brought by any other person. A party who intends to seek arbitration must first send to the other a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute and setting forth the specific relief sought. All Notices to Company shall be sent will be sent to the contact as noted on the IO. Upon receipt of a Notice, the other party shall have a thirty-day (30) period in which it may satisfy the claim against it by fully curing the dispute and/or providing all the relief requested in the Notice. After the expiration of such thirty-day (30) cure period, you or Company may commence an arbitration proceeding. Parties agreed that any claims, legal proceedings, or litigation arising in connection with the IO (including these Terms) will be brought solely in California, and the parties consent to the jurisdiction of such courts.