XXXXXXXXX.XXX ONLINE AGREEMENT
Publishers are required to accept this Agreement before account
activation can occur. Please read the Agreement. Please see the
Glossary for definitions of terms.
1) PARTIES
Pursuant to this Agreement, Xxxxxxxxx.xxx, Inc. ("Xxxxxxxxx.xxx") of
0000 Xxxxxxxxx Xxxxxx, Xxxxx Xxxxxxx, XX 00000, and Publisher shall
agree to the following terms and conditions for the receipt of
advertising materials ("Creative") from advertising Customers
("Customers") This includes the serving, tracking and reporting of each
Campaign made on the Xxxxxxxxx.xxx Network (the "Network") to Publisher
Websites ("Websites").
2) USE POLICY
a) Membership: Membership in the Xxxxxxxxx.xxx Network is subject to
prior approval of Xxxxxxxxx.xxx. Xxxxxxxxx.xxx reserves the right to
refuse service to any new or existing Publisher, in its sole
discretion, with or without cause. Approval of membership in the
Xxxxxxxxx.xxx Network is limited only to the specific root URLs for
which Publisher has applied for approval. Xxxxxxxxx.xxx reserves the
right to withhold approval of membership in the Xxxxxxxxx.xxx Network
based on Website primary language. Xxxxxxxxx.xxx reserves the right, in
its sole discretion and without liability, to reject, omit or exclude
any Publisher or Website for any reason at any time, with or without
notice to the Publisher and regardless of whether such Publisher or
Website was previously accepted.
b) Representation: Publisher represents and warrants that: (1) it is
the owner or is licensed to use the entire contents and subject matter
contained in the Website; (2) the Website is free of any "worm",
"virus" or other device that could impair or injure any person or
entity; (3) the Website does not violate any law or regulation
governing false or deceptive advertising, sweepstakes, gambling,
comparative advertising, or trade disparagement; (4) the Website does
not contain any misrepresentation, or content that is defamatory or
violates any rights of privacy or publicity; (5) Publisher is generally
familiar with the nature of the Internet and will comply with all laws
and regulations that may apply; and (6) the Website does not and will
not infringe any copyright, trademark, patent or other proprietary
right. Publisher grants Xxxxxxxxx.xxx and the customer the right and
license to transmit the Creative to the Website.
c) Termination: Xxxxxxxxx.xxx reserves the right to terminate any
Publisher's relationship with the Xxxxxxxxx.xxx Network at any time,
with or without cause. Termination notice may be provided via email or
any other public means and will be effective immediately. Upon receipt
of such termination notice, Publisher agrees to immediately remove from
his/her website Xxxxxxxxx.xxx's html code for serving Creative from
Xxxxxxxxx.xxx. Publisher will be paid, in the next scheduled payment
cycle, all legitimate earnings due up to the time of termination. Upon
termination, and in the event that blatant fraudulent activities have
been documented in the Xxxxxxxxx.xxx server logs, all ties to referrals
will be permanently severed and Publisher will not receive future
referral commissions.
d) Content: Xxxxxxxxx.xxx reserves the absolute right to refuse to
affiliate with any Publisher. Xxxxxxxxx.xxx does not accept Websites
that produce or provide adult content. Xxxxxxxxx.xxx does not accept
Websites that engage in, promote or facilitate illegal or legally
questionable activities such as pirating and hacking. Xxxxxxxxx.xxx
does not accept Websites that are: under construction, hosted by a free
service, personal home pages, or do not own the domain they are under.
Xxxxxxxxx.xxx ad codes can not be used on Webpages that contain forums,
discussion boards, or chat rooms. This Agreement is voidable by
Xxxxxxxxx.xxx immediately if Publisher fails to disclose, conceals or
misrepresents itself in any way. In addition, Xxxxxxxxx.xxx may in its
complete discretion refuse to serve any Website that it deems
appropriate. To insure compliance with this Agreement, any Publishers
that change their content after approval for membership MUST notify
Xxxxxxxxx.xxx of the changes in writing IMMEDIATELY. We prefer you
notify us ahead of time of any major changes in content or design.
Notices should be sent to xxxxxxx@xxxxxxxxx.xxx.
e) Traffic: Xxxxxxxxx.xxx reserves the right to terminate Publisher's
relationship with Xxxxxxxxx.xxx immediately should either (a) the
number of Impressions delivered by Publisher total less than 2,500 per
month, or (b) the unique Click Through rate equals .25% or less for any
fourteen (14) consecutive calendar day period, or (c) Publisher's
traffic falls below the threshold established by Xxxxxxxxx.xxx from
time to time. Xxxxxxxxx.xxx reserves the right to change the minimum
CTR at any time in response to market pressures.
f) Defaults: Fastclick may not be able to fill 100% of advertising
requests sent to its servers with paying ads. Fastclick provides free
Publisher-defined default redirects expressly for this reason. If
Publisher chooses not to specify a default redirect, Fastclick will
display so-called 'house' and 'AdCouncil' ads on Publisher's website
when paid advertising is unavailable. Fastclick may display so-called
'house' and 'AdCouncil' ads on any Publisher's website when technical
difficulties require it. So-called 'house' and 'AdCouncil' ads are not
paid advertising. Under no circumstances does Fastclick guarantee to
provide any percent fill of paid advertising to a website.
g) Placement: Creative may NOT be placed on any root URL not
specifically approved for membership within the Network. All banner
creative must be placed within 500 pixels of the top of the Webpage
(above the page scroll/fold). Fastclick pop-under windows can not be
launched from websites that launch more than a total of two pop
windows. No member will place ads on blank pages, on pages with no
content, on top of one another, on non-approved Websites, or in such a
fashion that may be deceptive to the visitor. Creative cannot be placed
in email messages. Banner creative may NOT be placed on webpages that
contain content that is not under direct webmaster control, such as
message boards and chat rooms. Modifications can be made to align
Creative, change text color, change text size, or change text font. In
addition, all Creative must be placed in such a manner that a majority
of visitors will notice the Creative.
h) Fraud and Deception: Xxxxxxxxx.xxx audits every Publisher's traffic
on a daily basis. Publishers that produce commit fraudulent activities,
including false clicks, false impressions, and incentivised clicks,
will have their account permanently removed from our network and will
not be compensated for fraudulent traffic. Additionally, Fastclick
reserves the right to register fraudulent Publishers in a global ad
network fraud database, for usage by other ad networks. We have several
fraud mechanisms at our disposal that will detect most forms within a
few days of the initial activity. All proceeds from accounts with
fraudulent activity will be refunded to Advertisers. All Xxxxxxxxx.xxx
Creative must be served from a Xxxxxxxxx.xxx server or serving
location. Stored images that are loaded from a different location will
not count towards any statistic or payment. Publishers agree to not
artificially inflate traffic counts using a program (including
scripts), device, or other means. Excessive page reloading or any other
abuse of our system could result in legal action. No Publisher shall
induce visitors to click on Creatives based on incentives, provided,
however, that, with the prior approval of Xxxxxxxxx.xxx, certain
language may appear above or below an advertisement served by
Xxxxxxxxx.xxx. The following methods of generating visitor interest are
unacceptable to Xxxxxxxxx.xxx and may be grounds for dismissal from the
Network: use of unsolicited email or inappropriate newsgroup postings
to promote your Website; auto-spawning of browsers; automatic
redirecting of users; clicking on your own banners; blind text links;
misleading links; or any other method that may lead to artificially
high numbers of impressions or clicks.
i) Code: Xxxxxxxxx.xxx ad codes must be not be modified from original
format without consent from Xxxxxxxxx.xxx. Publisher agrees to use the
ad code provided for displaying Creative not more than ONCE per page
view. Ad codes cannot be placed in email messages. Xxxxxxxxx.xxx ad
codes can not be used on Webpages that contain forums, discussion
boards, or chat rooms. Publisher can not alter, copy, modify, take,
sell, reuse, or divulge any Xxxxxxxxx.xxx computer code, except as is
necessary to partake in the Xxxxxxxxx.xxx Network, provided, however,
with the prior approval of Xxxxxxxxx.xxx, a Publisher may, in certain
instances, modify the Xxxxxxxxx.xxx computer code for purposes of
inserting certain pre-approved language above or below an advertisement
served by Xxxxxxxxx.xxx. Requests for language approval should be sent
to xxxxxxx@xxxxxxxxx.xxx.
j) Data Reporting (Stats): Xxxxxxxxx.xxx is the sole owner of all
website, campaign, and aggregate web user data collected by
Xxxxxxxxx.xxx. Publisher only has access to campaign data that is
collected through the use of their inventory. Customers only have
access to website and web user data that is collected as part of
Customer's campaign.
k) Contact Information: To insure timely payment, Publishers are
responsible for maintaining the correct contact and payment information
associated with their account. Payment Profile information must be
updated by the last day of the month to be be reflected in the next
payment. This must be done online using the Publisher's account. Any
and all bank/service fees associated with returned or cancelled
payments due to any error in the Publisher contact or payment
information are Publisher's responsibility, and will be deducted from
re-payment.
3) PAYMENT POLICY
Standard Fastclick payment rate is 65% of gross campaign rate /
revenue. Actual campaign rates vary with market conditions. Gross
campaign rates are less any payment transaction fees, campaign referral
fees, cost-of-money / bad-debt fees, and applicable ad serving fees.
Xxxxxxxxx.xxx reserves the right to set and negotiate specific payment
terms on an individual basis. Publishers will typically be paid within
twenty-five (25) business days after the end-of-month. Do not invoice
Fastclick; all Publisher invoices are discarded. Publishers will be
paid at the account level. All accounts will be settled in US dollars
($US). No checks will be issued for any amounts less than $50US, unless
guaranteed payment has been chosen. Guaranteed payments for balances of
less than $50US will incur a service charge of $2.50US. Net payments
under $1.00 after service charge will not be made and are permanently
forfeited. All unpaid earnings will rollover to the next pay period.
Any Publisher account that goes unpaid for six (6) months becomes
subject to immediate payoff, with service charge, and immediate
dismissal from the Xxxxxxxxx.xxx Network. Every US-based Publisher
account must have a unique taxpayer identification number (TIN).
Publishers can not refer themselves as a Publisher or as an Advertiser.
Groups of Publishers can not refer each other. All payments are based
on actuals as defined, accounted and audited by Xxxxxxxxx.xxx. In no
event will payments be made on accounts that have not provided proper
tax identification information. Xxxxxxxxx.xxx, reserves the absolute
right not to pay any accounts or Publishers that violate any of the
terms and conditions set forth herein. Xxxxxxxxx.xxx will be
responsible for determining, in its sole and absolute discretion, what
acts and omissions violate this policy, and which acts include activity
that is deceptive or fraudulent in nature. Examples of such acts may
include, without limitation, clicks without referring URLs,
extraordinary high numbers of repeat clicks, and clicks from
non-approved root URLs.
4) LIABILITY POLICY
a) Indemnification: Publisher is solely responsible for any legal
liability arising out of or relating to (i) the content and other
material set forth on the Publisher Websites and/or (ii) any content or
material to which users can link through the Publisher Websites (other
than through an advertisement supplied by Xxxxxxxxx.xxx). Publisher
xxxxxx agrees to indemnify, defend and hold harmless Xxxxxxxxx.xxx and
its officers, directors, agents, affiliates and employees from and
against all claims, actions, liabilities, losses, expenses, damages,
and costs (including, without limitation, reasonable attorneys' fees)
that may at any time be incurred by any of them by reason of any
claims, suits or proceedings (a) for libel, defamation, violation of
right of privacy or publicity, copyright infringement, trademark
infringement or other infringement of any third party right, fraud,
false advertising, misrepresentation, product liability or violation of
any law, statute, ordinance, rule or regulation throughout the world in
connection with the Publisher Websites (except for advertisements
supplied by Xxxxxxxxx.xxx); (b) arising out of any material breach by
Publisher of any duty, representation or warranty under any agreement
with Xxxxxxxxx.xxx; or (c) relating to a contaminated file, virus,
worm, or Trojan horse originating from the Publisher Websites (other
than through an advertisement supplied by Xxxxxxxxx.xxx).
b) Damages: In no event shall either party be liable for special,
indirect, incidental, or consequential damages, including, but not
limited to, loss of data, loss of use, or loss of profits arising
thereunder or from the provision of services.
c) Warranty Disclaimer: Xxxxxxxxx.xxx and its Customers do not make and
hereby expressly disclaim all warranties, express or implied, with
respect to any matter whatsoever, including, without limitation, the
performance of any software programs incidental to services rendered by
Xxxxxxxxx.xxx, services provided thereunder, or any output or results
thereof. Xxxxxxxxx.xxx and its Customers specifically disclaim any
implied warranty of merchantability or fitness for a particular
purpose.
d) Limitation of Liability: Neither Xxxxxxxxx.xxx nor its Customers
will be subject to any liability whatsoever for (a) any failure to
provide reference or access to all or any part of the Website due to
systems failures or other technological failures of Xxxxxxxxx.xxx or of
the Internet; (b) delays in delivery and/or non-delivery of Creative,
including, without limitation, difficulties with a Customer or
Creative, difficulties with a third-party server, or electronic
malfunction; and (c) errors in content or omissions in any Creative.
5) GENERAL
a) Applicability: In This Agreement, including all attachments which
are incorporated herein by reference, constitutes the entire agreement
between the parties with respect to the subject matter hereof, and
supersedes and replaces all prior and contemporaneous understandings or
agreements, written or oral, regarding such subject matter. Applicable
sections shall survive expiration or early termination of this
Agreement. Nothing in this Agreement shall be deemed to create a
partnership or joint venture between the parties and neither
Xxxxxxxxx.xxx nor Publisher shall hold itself out as the agent of the
other, except for that specified in this Agreement. Neither party shall
be liable to the other for delays or failures in performance resulting
from causes beyond the reasonable control of that party, including, but
not limited to, acts of God, labor disputes or disturbances, material
shortages or rationing, riots, acts of war, governmental regulations,
communication or utility failures, or casualties. Failure by either
party to enforce any provision of this Agreement shall not be deemed a
waiver of future enforcement of that or any other provision. Any
waiver, amendment or other modification of any provision of this
Agreement shall be effective only if in writing and signed by the
parties. If for any reason a court of competent jurisdiction finds any
provision of this Agreement to be unenforceable, that provision of the
Agreement shall be enforced to the maximum extent permissible so as to
effect the intent of the parties, and the remainder of this Agreement
shall continue in full force and effect. Headings used in this
Agreement are for ease of reference only and shall not be used to
interpret any aspect of this Agreement. In addition to terms that are
negotiated and documented separately from this Agreement, terms that
are automatically generated through the interactive use of the
Xxxxxxxxx.xxx website Publisher interface are explicitly bound by this
Agreement.
b) Public Release: Publisher shall not release any information
regarding Campaigns, Creatives, or Publishers relationship with
Xxxxxxxxx.xxx or its customers, including, without limitation, in press
releases or promotional or merchandising materials, without the prior
written consent of Xxxxxxxxx.xxx. Xxxxxxxxx.xxx shall have the right to
reference and refer to its work for, and relationship with, Publisher
for marketing and promotional purposes. No press releases or general
public announcements shall be made without the mutual consent of
Xxxxxxxxx.xxx and Publisher.
c) Remedy: If any Publisher violates or refuses to partake in their
responsibilities, or commits fraudulent activity against us,
Xxxxxxxxx.xxx reserves the right to withhold payment and take
appropriate legal action to cover its damages.
d) Audit: Xxxxxxxxx.xxx shall have the sole responsibility for
calculation of Publisher earnings, including Impressions and click
through numbers. In the event Publisher disagrees with any such
calculation, a written request should be sent immediately to
Xxxxxxxxx.xxx. Xxxxxxxxx.xxx will provide Publisher with an explanation
or adjustment of the numbers which shall be final and binding.
e) Modifications: Xxxxxxxxx.xxx reserves the right to change any
conditions of this contract at any time. Members are responsible for
complying with any changes to the Xxxxxxxxx.xxx Publisher Agreement
within 10 business days from the date of change. Xxxxxxxxx.xxx will
post any changes to this Agreement in the Publisher area of the
Xxxxxxxxx.xxx Website..
f) Privacy: Publisher shall support Xxxxxxxxx.xxx's commitment to
protect the privacy of the online community; such commitment is set
forth in Xxxxxxxxx.xxx's Privacy Statement, which is hereby
incorporated into this Agreement.
g) Assignment: Customer may not assign this Agreement, in whole or in
part, without written consent from Xxxxxxxxx.xxx. Any attempt to assign
this Agreement without such consent will be null and void.
h) Governing Law: This Agreement will be governed by and construed in
accordance with the laws of the State of California.
i) Ability to Enter into Agreement: By executing this Agreement,
Publisher warrants that Publisher (or Authorized Representative of
Publisher) is at least 18 years of age, and that there is no legal
reason that Publisher cannot enter into a binding contract
