The following terms and conditions, together with the DeluxeAds Privacy Policy (“Privacy Policy”), as well as any and all Acceptable Use Policies referenced herein (“AUP”), constitute the binding legal agreement (this “Agreement”) between DeluxeAds (“Company” or “DeluxeAds”) and you (“You” or “Your”), the user of the DeluxeAds website (the “Website”) and its network (the “Service”). You and Company may also be individually referred to herein as a “Party” and collectively as “Parties.” 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 this Agreement. Company reserves the right to make changes to the Website, the Service and the terms and conditions of this 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. This Agreement applies to and governs Your relationship with Company in all matters including, without limitation, your participation as a Publisher in connection with the Service. For purposes of this Agreement “Publisher” means You and/or the company or entity registering with DeluxeAds 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 this 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 sponsored by Company or its third party advertising clients (“Advertisers”) on Company’s proprietary network (“Program(s)”). Approved Publishers shall be permitted to download the Creative: (i) for publication on Publisher’s website and/or any other website 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 Publisher’s database and/or any other database affiliated with, owned by, operated by and/or controlled by Publisher (collectively, “Publisher Databases”). 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 a specified event (“Event”) identified in the Program terms and conditions which include, without limitation, clicks, click-throughs, sales, registrations, impressions and leads, as applicable. The definition of the Event associated with each Program shall be set forth in the applicable Program’s specifications, and such definition shall apply with respect to that Program. 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 this Agreement and the accepted Program. Company may change a Program at any time, unless otherwise specified in the Program terms, upon prior notice to You. Similarly, You may cease participation in previously accepted Programs at any time, unless otherwise specified in the Program terms, upon written notice to Company. Company is responsible for displaying and administrating all active Programs and tracking associated Program payments owed to You. 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 the information will be deemed accurate and accepted as such 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 websites and email distribution lists 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 websites and/or email distribution lists for any reason whatsoever, in Company’s sole discretion
.
In order to be eligible to become an 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, the applicable 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 be written in English and contain only English language content;
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 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 law;
Violence or profanity;
Pornographic, obscene, sexually explicit or related content;
Material that defames, abuses, is libelous, is tortuous 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;
Promotion of 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;
Promotion of 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 or regulation, Canadian provincial or federal law or the laws of any other 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, Tags 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 or any elements thereof (collectively, “Company Intellectual Property”) subject to the terms and conditions set forth herein. You acknowledge and agree that Company may reject Your Publisher application for any reason, in Company’s sole discretion. You acknowledge and agree that You do not have, nor will You claim any right, title or interest in, 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. Company reserves any rights not explicitly granted in this Agreement. You may not use any device, software or routine to interfere or attempt to interfere with the proper working of the Website. In addition, Website integration tags included in the Creative, or otherwise (collectively, “Tags”), may NOT be altered under any circumstances. Altering Tags may jeopardize Your ability to be paid for Events and would be grounds for immediate termination of Your Publisher account and forfeiture of any associated Bounty-related commissions. 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.
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.
If You fraudulently add leads, clicks or other Events, or inflate leads, clicks or other Events, through the use of fraudulent means of traffic generation (as determined solely by Company, such as pre-population of forms or mechanisms not approved 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.
It is the OBLIGATION of Publisher to prove to Company that it has NOT engaged in fraud. Company will hold Your Bounty-related payments in ‘Pending Status’ until You have satisfactorily provided evidence that You have not engaged in fraud. Company uses a variety of methods to flag accounts for possible fraud, including accounts that:
Have click-through rates that are much higher than industry averages and where solid justification is not evident;
Have ONLY click programs generating clicks with no indication, based upon site traffic statistics, that it can sustain the clicks reported;
Have shown fraudulent leads as determined by Company or its Advertisers; and
Use fake redirects, automated software and/or fraud to generate clicks or leads from Programs.
4. Use of Downloadable Software
Downloadable Software can only be utilized by You if it complies with Company�s Acceptable Use Policy for Downloadable Software. Downloadable Software must receive approval by Company prior to use.
5. Use of Email for Marketing Purposes
Email Marketing can only be utilized by You if it complies with the Company’s Acceptable Use Policy for Email Marketing.
6. Use of Mobile for Marketing Purposes
Mobile Marketing can only be utilized by You if you comply with Company’s Acceptable Use Policy for Mobile Marketing. Downloadable Software must receive approval by Company prior to use.
7. Use of Search for Marketing Purposes.
Search Marketing can only be utilized by You if you comply with Company’s Acceptable Use Policy for Search Marketing.
8. Payment.
You will be paid the applicable Bounty rate for each Program Event specified in the applicable Program terms. The Parties understand Parties understand and agree that payment will be owed to Publisher from the applicable Advertiser, and that corresponding payments shall be made from Company out of the funds actually collected by Company from the applicable Advertiser approximately fifteen (15) days after the last day of a given calendar month, for Bounties realized in that month. All accounts will be paid in US dollars ($US). No checks will be issued for any amounts less than Fifty US Dollars ($50) (“Payment Threshold”). Every Publisher account must have a unique, valid taxpayer identification number (“TIN”) or valid Social Security number. All payments are based on actual figures as defined, accounted for and audited by Advertiser. Company will facilitate payment by disbursing the earned portion of lump sum aggregate payments to individual Publishers based upon the receipt of corresponding payments from the applicable Advertiser(s).
If you modify, circumvent, impair, disable or otherwise interfere with the Tags, thereby disrupting or disabling Company’s tracking system, Company may, in its sole discretion, cancel any applicable Bounties due for Events generated in connection with such Tags. If there is any impairment of the Tags not caused by You or any of your Sub-Publishers, 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.
In the event that Company fails to receive the applicable corresponding payments due from the respective Advertiser(s), Company shall have no payment obligation to Publisher. Instead, Publisher shall have the right to pursue any and all legal remedies directly against any Advertiser that has not made funds available to pay sums due and owing to Publisher for Bounties earned in connection with a particular Program. If Advertiser does not pay on time, Company will notify Publisher and may, in its sole discretion, offer its reasonable assistance in matters related to collections. Publisher agrees that Company shall have no obligations and incur no liabilities to Publisher in connection with any such payment-related dispute. Advertisers will not pay for any Events that occur before a Program is initiated, or after a Program terminates. Invoices submitted to Company and payments made to You shall be based on the Events and corresponding Bounties as recorded by Company. Company will not be responsible to compensate You for Events that are not recorded due to Your error.
9. Termination.
This Agreement shall commence upon Company’s acceptance of Your Publisher application and remain in effect until terminated as set forth herein. This Agreement may be terminated by You upon three (3) days’ prior written notice to Company. This Agreement shall terminate immediately upon the dissolution or insolvency of either Party. Company reserves the right, in its sole and absolute discretion, to terminate a Program and/or remove any Creative and/or Offers at any time for any reason. Company also reserves the right to terminate this Agreement, as well as Your access to the Website 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. 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 this Agreement, the Privacy Policy or the AUP, then such payments otherwise due Publisher shall be revoked, as determined solely by Company. The representations, warranties and obligations contained in Sections 8, 10, 11, 12 and 13 hereof shall remain in full force and effect after termination of this Agreement. Other than in the case of Your breach of this 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 any 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 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 DeluxeAds rules and policies, including the eligibility and content policies set forth in Section 2 (above);
Your Publisher Websites and Publisher E-mails are, and shall remain at all times during the term hereof, in compliance with any applicable rules and policies set forth by the respective Advertisers in the Programs that You elect to participate in;
You agree not to send Unsolicited Bulk Email (i.e., SPAM) or otherwise violate any of the provisions of the CAN-SPAM;
You agree not to post any messages to newsgroups, chat rooms, bulletin boards or any other places that mention specific DeluxeAds Advertisers or Programs unless You obtain express prior written permission from Company;
You agree not to promote on or through Your Publisher Websites or Publisher E-mails, nor link to websites containing, any pornographic, racial, ethnic, political, software pirating (e.g. Warez) or hacking, hate-mongering or otherwise objectionable content;
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, as well as Your associated marketing practices, will at all times fully comply with all applicable laws, rules and/or regulations including, but not limited to, the ATSR, COPPA, the Fair Credit and Reporting Act, CAN-SPAM, Federal Trade Commission implementing regulations and any and all state and federal laws regarding deceptive trade practices;
There is no pending or, to the best of Your knowledge, threatened claim, action or proceeding against You;
Your execution, delivery and performance of this 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 this Agreement and grant the rights specified herein;
You will not attempt in any way to alter, modify, eliminate, conceal or otherwise render inoperable or ineffective the Site tags, source codes, links, pixels, modules or other data provided by or obtained from Company that allows Company to measure the performance of Creative, calculate Bounties and Events and otherwise provide the Service (“Site Data”);
You will not frame or mirror any part of the Site, without our prior written authorization;
If instructed to do so by Company and/or if this Agreement terminates, You will immediately remove and discontinue the use of any Creative, Offers and/or Site Data;
You acknowledge that Company does not represent, warrant, or make any specific or implied promises as to the successful outcome of any Programs;
You agree to 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 Site;
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 acknowledge and agree that if any errors or undesirable results occur in connection with recording or calculating Events, Bounties, associated payments or otherwise due to no fault of Company, Company shall not be responsible for any associated losses.
11. Customer Information; Non-Disclosure.
All information submitted by end-user customers (“Customer Information”) in connection with a Program shall be considered proprietary to and owned by Company and/or Company’s Advertisers and/or other partners. Such Customer Information is 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 Services is proprietary to and owned by Company. All Company Intellectual Property and other proprietary and confidential information 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 in any manner. These non-disclosure obligations shall survive termination or expiration of this Agreement. Both Parties agree and acknowledge that if Publisher violates its confidentiality obligations under this 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 YOUR USE OF THE WEBSITE, 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 SITE, CREATIVE, OFFERS, PROGRAMS, ADVERTISERS UNDERLYING PRODUCTS AND SERVICES, INFORMATION, CONTENT AND SERVICES 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 SITE, CREATIVE, OFFERS, PROGRAMS 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 SITE, CREATIVE, OFFERS, PROGRAMS 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 SITE, CREATIVE, OFFERS, PROGRAMS 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 SITE, CREATIVE, OFFERS AND/OR PROGRAMS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY PUBLISHER FROM COMPANY THROUGH THE SITE, CREATIVE, OFFERS AND/OR PROGRAMS SHALL CREATE ANY WARRANTY, REPRESENTATION AND/OR GUARANTEE NOT EXPRESSLY STATED IN THIS AGREEMENT.
THE WEBSITE, CREATIVE, OFFERS, PROGRAMS, ADVERTISERS’ UNDERLYING PRODUCTS AND SERVICES, INFORMATION, CONTENT AND SERVICES, 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, CREATIVE, OFFERS, PROGRAMS 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, CREATIVE, OFFERS, PROGRAMS 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, CREATIVE, OFFERS, PROGRAMS 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, CREATIVE, OFFERS AND/OR PROGRAMS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY PUBLISHER FROM COMPANY, ANY ADVERTISER, OR OTHERWISE THROUGH THE WEBSITE, CREATIVE, OFFERS AND/OR PROGRAMS, AS WELL AS ANY OTHER COMPANY INTELLECTUAL PROPERTY, SHALL CREATE ANY WARRANTY, REPRESENTATION AND/OR GUARANTEE NOT EXPRESSLY STATED IN THIS 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 improper use of the Website, Creative or any Offer; (ii) Your improper operation of a Program; (iii) any third party claim related to Your Publisher Websites, Publisher Databases, Publisher E-mails and/or Your marketing practices; (iv) any content, goods or services offered, sold or otherwise made available by You on or through Your Publisher Websites, Publisher E-mails or otherwise; (v) any claim that Company is obligated to pay any taxes in connection with payment made to You in connection with this Agreement and/or any Program; (vi) breach or violation of this Agreement and/or any representation or warranty contained herein; (vii) the acts and/or omissions of any Sub-Publishers (as defined below); and/or (viii) Your use of the Services, in any manner whatsoever. 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.
14. Assignment, Sub-Publishers and Jurisdiction
Company may assign this Agreement with or without Your consent. You may not assign this Agreement without the prior written consent of Company, which may be withheld for any reason. This 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 this Agreement, each of Publisher’s business partners or associates that participate in or perform any activities on behalf of Publisher under this 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 this Agreement and must comply with all the terms and conditions that are applicable to Publisher under this Agreement and the applicable Program Terms. Publisher is responsible for and shall fully and unconditionally indemnify Company for any and all actions 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 actions 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 any Sub-Publisher for any reason whatsoever, at its sole discretion. Company further reserves the right to withhold or refuse payment to Publisher in the event that any of its Sub-Publishers breach this Agreement.
This Agreement shall be construed and governed by the law of the State of New York 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 this 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 New York, New York. 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 this Agreement. Nothing contained herein shall prevent either Party from seeking injunctive relief pending an outcome in arbitration.
15. Severability.
If any provision of this Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability shall not effect any other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had not been contained herein.
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. Terms of this 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 this 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 this Agreement.
18. Miscellaneous.
You agree that any unauthorized and/or unlawful use of the Site, Creative, Offers 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 this Agreement, to immediate injunctive relief against You without the need to post a bond. Nothing contained in this Agreement shall be construed to limit any legal remedies available to Company. This Agreement, together with the AUP and the DeluxeAds Privacy Policy, contains the sole and entire agreement and understanding between the Parties relating to the subject matter herein, and merges all prior discussions, whether through officers, directors, salespersons, employees or consultants. Each Party is an independent contractor and not a partner, joint venturer or employee of the other. 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 this 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 this Agreement at any time, with or without notice to you.
