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These Advertising.com Publisher Terms and Conditions and the Addendum attached hereto, which are hereby incorporated by reference (the "Standard Terms"), between Advertising.com, Inc. (the "Company"), and you (the "Publisher") shall govern Publisher's participation in Advertising.com's Network and shall replace any and all prior agreements entered into by and between the Company and Publisher.
Definitions
"Action" - shall have the meaning set forth in Network's database of Currently Available Creatives.
"Advertising.com" - means Advertising.com, Inc., a Maryland Corporation located at 1020 Hull Street, Baltimore, MD 21230.
"CPA" - means a campaign for which Publisher shall be paid on a Cost Per Action basis.
"CPC" - means a campaign for which Publisher shall be paid on a Cost Per Unique Click basis.
"CPM"- means a campaign for which Publisher shall be paid on a Cost Per Thousand Impressions basis.
"Creative" - means any type of advertising creative served or otherwise provided by Advertising.com within the Network, including, but not limited to, buttons, banners, Video Creatives, text-links, pop-ups, and pop-unders.
"Currently Available Creatives" - means Creatives available within the Network from which Publisher may select particular Creatives for placement on Publisher's Media.
"Default click" - means any click on a Creative that causes the web surfer to reach a destination other than the intended destination (an incorrect redirect), which may be caused by a server malfunction on the Publisher's Media, or because of alterations made by Publisher or erroneous coding placed on the Publisher's Media.
"Email Lists" - means lists of email addresses of persons who have provided Publisher with their permission (opt-in or opt-out) to receive emails containing Creatives via electronic mail over the Internet.
"Impressions" - means the number of times a Creative is served to, and received by, a unique visitor on Publisher's Media as measured by Advertising.com. In no event may more than 5% of unique visitors for any payout calculation come from one IP Address. Impressions that are served but are not received due to end user blocking technology or software (e.g., pop-up blocking software) shall not count towards any payout calculation. Notwithstanding the foregoing, a Video Creative, and a Video Creative along with any companion banner that may be served with it, shall count as a single impression when called as a result of a user visiting Publisher's Media as measured by Advertising.com; i.e., if a user receives a video creative it shall count as one impression, if a user receives a video creative along with a companion banner it shall count as one impression.
"Landing Page" - means the web page on Publisher's Web Site where a Creative will be located
"Media" - means Web Sites and Email Lists.
"Network" - means Advertising.com's centrally managed group of third party Web Sites and Email Lists through which Advertising.com can distribute Creatives.
"Publisher" - means the third party Media owner or manager that wishes to join the Network.
"Revenue Share" - means a campaign for which Publisher shall be paid on a fixed revenue share basis, based on the revenue generated by Publisher as a result of delivering Creatives on Publisher's Media.
"Run of Network" - means campaigns for which Publisher elects to place Advertising.com's Run of Network code on Publisher's Web Site(s) for purposes of automatically rotating multiple Creatives available in the Network on Publisher's Web Site.
"Unique Click" - means the number of times, as recorded by Advertising.com's server, a person viewing Publisher's Media, as identified by cookie or IP address, clicks on a Creative, provided however, that a click on a specific Creative by a particular person shall only be counted as a Unique Click once every 1-hour period.
"Units" - means the advertising units (i.e., Impressions, Unique Clicks or Actions) available for delivery by Publisher on particular Creatives within the Currently Available Creatives.
"Video Creative" - means a Pre Roll broadband video advertising unit as more fully described in the IAB Broadband Ad Creative Guidelines located at http://www.iab.net/standards/broadband/index_old.asp.
"Web Site" - means an HTML document containing a set of information available via the Internet.
1. Prohibited Content. Publisher acknowledges that Advertising.com does not accept any Media that contains: indecent, obscene or pornographic material, hate speech, highly explosive subject matter (as determined by Advertising.com), any illegal subject matter or activities or any other content that does not meet Advertising.com's Network Quality standards as in effect from time to time (collectively referred to as the "Prohibited Content"). Publisher represents and warrants that during the term of this agreement any of its Media on which it places Creatives shall not contain any Prohibited Content.
2. Approval; Selecting Creatives. Participation in the Network is subject to prior approval of Advertising.com. Advertising.com reserves the right to withhold approval to participate in the Network for any reason whatsoever. Approval to the Network is limited only to the specific Media for which Publisher has applied for approval and is limited to the specific URLs and Email Lists identified, as applicable. Creatives may not be placed within any Media not specifically approved for participation in the Network. Although Publisher may apply for more than one type of Media (i.e., Web Sites and Email Lists), each type of Media must be submitted for specific approval. Creatives may not be placed on any surf bars or any other downloadable software applications or any advertising space created by such bars or downloadable software applications without Advertising.com's prior written approval.
Upon approval for participation in the Network, Publisher shall have the option of placing Advertising.com's Run of Network code on its Web Site and choosing from the Currently Available Creatives for all of Publisher's Media. If Publisher chooses offers from the Currently Available Creatives, Publisher agrees to use the Currently Available Creatives that Publisher selects only in connection with the particular Media for which such Creative is available, in accordance with the traffic instructions set forth at the time of selection, and only on Media that have been specifically approved by Advertising.com pursuant to these Standard Terms. Even if the same Creative is available in the Network for more than one type of Media (i.e., the same Creative appears for Web Sites and Email Lists), CREATIVES MUST BE ACCEPTED INDIVIDUALLY FOR EACH TYPE OF MEDIA. NO PUBLISHER MAY PLACE A CREATIVE ON ANY WEB SITE OR DELIVER A CREATIVE TO ANY EMAIL LIST OTHER THAN THE WEB SITE OR EMAIL LIST FOR WHICH SUCH CREATIVE WAS ORIGINALLY INTENDED AND ACCEPTED. Publisher shall not use Creatives previously selected from the Currently Available Creatives for delivery in Publisher's Media at later dates, unless such Creatives continue to be available in the then Currently Available Creatives for such Media AND such Creatives have Units remaining for delivery. Advertising.com reserves the right to pay Publishers only for Units delivered on approved Media which were appropriately selected and delivered from the then Currently Available Creatives, and for Units which were delivered on approved Media using Advertising.com's Run of Network code. PUBLISHER AGREES TO REVIEW THE AVAILABILITY OF CREATIVES THAT THEY HAVE PLACED WITHIN THEIR MEDIA ON A REGULAR AND TIMELY BASIS. IT IS THE PUBLISHER'S SOLE RESPONSIBILITY TO CHANGE CREATIVES WITHIN THEIR MEDIA WHEN A CREATIVE IS NO LONGER AVAILABLE IN THE NETWORK OR HAS NO UNITS REMAINING FOR DELIVERY. ADVERTISING.COM ASSUMES NO RESPONSIBILITY TO NOTIFY A PUBLISHER WHEN AN ADVERTISEMENT IS NO LONGER AVAILABLE IN THE NETWORK OR HAS NO UNITS REMAINING FOR DELIVERY. Publisher's participation in the Network is non-exclusive and all inventory is preemptible at Publisher's sole discretion.
3. Prohibited Activities. Publishers shall NOT induce persons to click on Creatives based on incentives without the prior written approval of Advertising.com, which, if provided, is subject in each case to the following conditions: (i) Publisher will be allowed to place Creatives for CPA campaigns ONLY; and (ii) Publisher shall be provided with access to the Network's Member ID Passing Tool to track member rewards. The Member ID Passing Tool will enable Publisher to run CPA campaigns and ensure that incentive rewards are allocated to the appropriate member of Publisher's Media by providing Publisher with a way to add a unique, anonymous member ID to each CPA Creative delivered. PUBLISHER REPRESENTS AND WARRANTS THAT ANY UNIQUE MEMBER ID USED BY SUCH PUBLISHER SHALL: (a) BE ANONYMOUS; (b) NOT INCLUDE ANY PERSONALLY IDENTIFIABLE INFORMATION; AND (c) COMPLY WITH ALL APPLICABLE FEDERAL AND LOCAL LAWS AND REGULATIONS, INCLUDING, WITHOUT LIMITATION, ALL PRIVACY LAWS AND REGULATIONS.
Publisher shall NOT serve Creatives, or drive traffic to such Creatives, using any downloadable applications without the prior written approval of Advertising.com, which, if provided, is subject in each case to the following condition: Creatives delivered in approved downloadable applications may only be shown once per user session when the application is active, enabled and clearly recognizable by the end user as being active and enabled. Serving Creatives at anytime when the downloaded application is not active is strictly prohibited and grounds for immediate termination without pay.
Except as otherwise provided in these Standard Terms, under no circumstances may a Publisher, without the prior, express written consent of Advertising.com, alter, copy, modify, take, sell, re-use, or divulge in any manner any Creatives or Advertising.com computer code provided by Advertising.com; provided that Publisher may, without prior approval, change the font type, font style, and font size of text-link advertisements offered on the Network only for the purpose of matching the font in Publisher's Media.
The following methods of generating visitor interest in Publisher's Media or Creatives are prohibited and may be grounds for immediate termination from the Network, in addition to other remedies available to Advertising.com: mailing emails to persons other that those persons who have requested to receive such emails (i.e., spamming); use of unsolicited email or inappropriate newsgroup postings to promote Publisher's Media or Creatives; autospawning of browsers; automatic redirecting of visitors; blind text links; misleading links, forced clicks (a person should never be 'forced' to click on a Creative because their browser has been hijacked, or because a Creative has been altered so that it is impossible to close without clicking it); or any other method that may lead to artificially high numbers of delivered clicks; purchasing keywords from a search engine service provider that include the trademark, service mark, or brand name of the advertising client to which the applicable Creative relates, or any derivative of any such trademark, service mark, or brand name ("Advertiser Marks"), or purchasing online advertising inventory for purposes of running advertisements that include Advertiser Marks on Web Sites or within emails.
Publisher recognizes that a breach of these conditions could result in immediate, extraordinary and irreparable damage to Advertising.com and its relationships with its advertising clients, and that damages may be difficult to measure. Therefore, Publisher agrees that should they violate the foregoing conditions of this Section 3, Advertising.com may, in addition to other legal remedies, assess liquidated damages of up to $1,000.00 per occurrence of each such violation, and that such liquidated damages are reasonable.
4. Payment. Unless otherwise specifically set forth in an Insertion Order attached to these terms and conditions, payment to Publisher shall be based on either Advertising.com's Run of Network Payment terms or the payment terms for Creatives Selected from Currently Available Creatives, as set forth below and as applicable. Publishers will be paid at the account level-if you have more than one account, each account is evaluated independently. To insure timely payment, Publisher must notify Advertising.com at publishers@advertising.com of any changes to its Network account information, including change of address, phone or email address. In no event will payments be made on accounts that have not provided proper tax identification information. No checks will be issued for any amounts less than $25 U.S.D. All un-issued earnings will rollover to the next pay period. Advertising.com, reserves the right not to pay any Publishers who violate any of these Standard Terms. Advertising.com will be responsible for determining, in its sole and absolute discretion what acts and omissions violate these Standard Terms, 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. Advertising.com assumes no responsibility for paying income taxes on behalf of Publishers. By participating in the service, Publishers assume complete and sole responsibility for any taxes owed as a consequence of participation in the service. Advertising.com shall provide Publishers with appropriate tax information, including earnings on Form 1099 as required by applicable law. Publishers residing in the United States agree to provide their Social Security number or Federal Employee Identification Number and any other reasonable information to Advertising.com for tax reporting purposes. Such information will be used for no purpose other than for tax reporting purposes. International Publishers may be asked to complete appropriate forms for tax purposes and agree to accurately complete such forms. Advertising.com may withhold payment from any Publisher that does not provide accurate tax information or complete any necessary tax or reporting forms, as determined in Advertising.com's sole and absolute discretion.
Run of Network Payment terms: Unless otherwise set forth on an Insertion Order attached to these terms and conditions, the following terms shall apply to any delivery from Publisher as a result of placing Advertising.com's Run of Network code within Publisher's Media. Payments will be based on monthly Publisher Earnings and shall be made by Advertising.com on or about the 30th day after the end of the month in which such Publisher Earnings were earned. For purposes of this Agreement, "Publisher Earnings" means the total revenue Advertising.com generates by running advertising campaigns on Publisher's inventory less "Advertising.com Earnings". "Advertising.com Earnings" are calculated at the campaign level at the sole and absolute discretion of Advertising.com. Advertising.com evaluates each advertising campaign run on Publisher's inventory and makes relative earnings calculations based upon a number of factors including the type of campaign metric (e.g., CPM, CPC, CPA), the performance of the campaign, technology costs, and other factors relating to the campaign, the performance of Publisher's site(s) and the Network as a whole. Each Advertising campaign is evaluated separately, with the aggregate "Publisher Earnings" and "Advertising.com Earnings" resulting in a total revenue percentage share that varies on a constant basis. Publisher understands that such percentage calculation may vary from hour to hour, day to day, and month to month, and that individual campaigns run on Publisher's Web Site(s) may generate different earnings splits at different times due to a number of factors, all of which are considered by Advertising.com at its sole and absolute discretion.
Payment terms for Creatives Selected from Currently Available Creatives: The following terms shall apply to any delivery from Publisher as a result of placing Creatives selected from Currently Available Creatives within Publisher's Media. Payment for advertisements will be made based upon the CPM, CPC, CPA or Revenue Share payout rate as set forth in the Network, depending on the Currently Available Creatives selected by Publisher. Payment shall be made by Advertising.com on or about the 15th day after the end of the month in which revenue was earned by Publisher. Subject to the terms for Web Site Creative payout rates below, payout rates on Creatives selected by Publisher from the Currently Available Creatives shall be honored from the time such Creatives are selected by Publisher provided the particular Creatives selected by Publisher have Units remaining for delivery. IT IS THE PUBLISHER'S SOLE RESPONSIBILITY TO CHANGE CREATIVES IN HIS OR HER MEDIA WHEN A CREATIVE IS NO LONGER ACTIVE IN THE NETWORK (i.e., THE CREATIVE HAS NO UNITS REMAINING FOR DELIVERY). ADVERTISING.COM ASSUMES NO RESPONSIBILITY TO NOTIFY A PUBLISHER WHEN A CREATIVE NO LONGER HAS UNITS AVAILABLE FOR DELIVERY. ADVERTISING.COM MAY INCREASE PAYOUT RATES ON ANY CREATIVES WITH OR WITHOUT NOTICE TO PUBLISHER. NOTWITHSTANDING THE FOREGOING, ADVERTISING.COM RESERVES THE RIGHT, IN ITS SOLE DISCRETION, TO CHANGE THE PAYOUT RATES ON ANY CREATIVE SELECTED BY PUBLISHER WHICH IS DELIVERED ON PUBLISHER'S WEB SITE(S) UPON TWENTY-FOUR HOURS (24) HOURS NOTICE WHICH NOTICE SHALL APPEAR IN THE "SITE TASKS" SECTION OF PUBLISHER'S ACCOUNT AT HTTP://PUBLISHER.ADVERTISING.COM ("NOTICE PERIOD"). PUBLISHER UNDERSTANDS AND AGREES THAT ANY SUCH CHANGE TO PAYOUT RATES SHALL BE EFFECTIVE, AND SHALL BE APPLIED TO ANY UNITS DELIVERED BY PUBLISHER, AFTER EXPIRATION OF THE NOTICE PERIOD. IT IS PUBLISHER'S SOLE RESPONSIBILITY TO CHECK THE "SITE TASKS" SECTION OF PUBLISHER'S ACCOUNT FOR ANY PAYOUT RATE CHANGE NOTICES AND TO REMOVE A CREATIVE FROM PUBLISHER'S WEB SITE(S) PRIOR TO EXPIRATION OF A NOTICE PERIOD, IF PUBLISHER DOES NOT WANT TO BE EFFECTED BY A PAYOUT RATE CHANGE.
Fixed Revenue Share/CPM Payment terms: If an attached Insertion Order states that Publisher shall be paid based either on a fixed revenue share percentage or on a fixed CPM basis, the following terms shall apply. Payment for advertisements will be made based upon either (i) the revenue share percentage payout rate, or (ii) the CPM rate, in each case as set forth in the attached Insertion Order. Payments shall be made by Advertising.com on or about the 30th day after the end of the month in which revenue was earned by Publisher.
5. Counting. Advertising.com shall have the sole responsibility in its absolute and sole discretion for calculation of statistics, including, but not limited to, Impressions, Unique Clicks, Actions and revenue generated on Publisher's Media, as applicable. Greenwich Mean Time (GMT) shall be the time period for traffic and tracking purposes. Statistics shall be available to Publisher online at http://reports.advertising.com. Publisher understands that Advertising.com's online statistics may not be 100% accurate and that Advertising.com may make adjustments to Publisher's online statistics at the end of each calendar month to account for, among other things, specific contractual provisions (e.g., bonuses) and statistical errors.
6. Use of Data. Publisher understands that Advertising.com collects non-personally identifiable data in connection with serving ads at Publisher's site(s). Advertising.com has the right to use and disclose such data for any purpose which is not inconsistent with Advertising.com's Privacy Statement, which can be found at, (http://www.advertising.com/privacy/privacy.html).
7. Term; Termination. These terms and conditions, as and if amended, shall apply to Publisher for as long as Publisher is a member of the Network. Either party may terminate this Agreement at anytime, for any reason whatsoever, upon written notice to the other party. Notice may be provided via e-mail or any other public means and will be effective immediately. Upon receipt of such termination notice, Publisher must immediately remove Creatives from its Media and cease delivery of any and all Creatives. In the case of termination, provided that Publisher has an outstanding account balance equal to or greater than twenty-five dollars ($25.00 U.S.D.), Advertising.com will pay Publisher all legitimate moneys due during the next billing cycle as set forth in Section 4.
8. Limitation of Liability.EXCEPT AS PROVIDED HEREIN WITH RESPECT TO INDEMNIFICATION, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES (EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM ANY ASPECT OF THE RELATIONSHIP PROVIDED HEREIN. IN NO EVENT SHALL ADVERTISING.COM'S LIABILITY FOR ANY REASON WHATSOEVER EXCEED THE FEES PAID TO PUBLISHER BY ADVERTISING.COM UNDER THIS AGREEMENT. EACH PARTY AGREES AND DOES WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT AGAINST THE OTHER PARTY FOR ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT. NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST ADVERTISING.COM MORE THAN ONE YEAR AFTER THE DATE OF SERVICE UNDER THIS AGREEMENT.
9. Indemnification.
(a) Publisher. Publisher is solely responsible for any and all legal liability arising out of or relating to (i) the content and other material set forth on Publisher's Media (other than through a Creative supplied by Advertising.com, unless such Creatives were modified by Publisher without the express written consent of Advertising.com); and (ii) any content or material to which visitors can link through the Publisher's Media (other than through a Creative supplied by Advertising.com, unless such Creatives were modified by Publisher without the express written consent of Advertising.com). Publisher hereby agrees to indemnify, defend and hold harmless Advertising.com 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, breach of contract, 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 Publisher's Media (except for Creatives supplied by Advertising.com, unless such Creatives were modified by Publisher without the express written consent of Advertising.com); (b) arising out of any material breach by Publisher of any duty, representation or warranty under this or any other agreement with Advertising.com; or (c) relating to a contaminated file, virus, worm, or Trojan horse originating from Publisher's Media (other than through a Creative supplied by Advertising.com, unless such Creative was modified by Publisher without the express written consent of Advertising.com).
(b) Advertising.com. Advertising.com hereby agrees to indemnify, defend and hold harmless Publisher and its officers, directors, agents, affiliates and employees from and against all third party 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 arising out of a material breach by Advertising.com of any duty, representation or warranty under this Agreement.
(c) Indemnification Procedures. Any claim for indemnification hereunder shall be subject to the following provisions: (x) the indemnifying party shall be given written notice of the claim within 15 days of receipt of the demand by the indemnified party; (y) the indemnifying party shall have the right to control the defense and all negotiations relative to the settlement of any such claim; and (z) the indemnified party shall reasonably cooperate with the indemnifying party and its counsel.
10. Confidentiality. Publisher acknowledges that during the performance of its duties and obligations under this Agreement, Advertising.com may be required to disclose to Publisher certain information, which Advertising.com regards as proprietary or confidential. As used in this Agreement, the term "Confidential Information" shall refer to: (i) Advertising.com's trade secrets, business plans, strategies, methods and/or practices; (ii) computer systems architecture and network configurations (iii) any and all information which is governed by any now-existing or future non-disclosure agreement between the parties hereto, (iv) any and all email addresses on Advertising.com's advertising clients' "Do Not Send" list(s) provided for purposes of suppressing against Publisher's Email List(s); (vi) any other information relating to Advertising.com that is not generally known to the public, including information about Advertising.com's personnel, products, customers, financial information, marketing and pricing strategies, services or future business plans; and (vii) any and all analyses, compilations, studies, notes or other materials prepared which contain or are based on Confidential Information received from Advertising.com. Publisher agrees that it will not disclose any Confidential Information to any third-party, and that it will not use Confidential Information for any purpose not permitted under this Agreement. The foregoing obligations shall not apply to the extent Confidential Information: (a) must be disclosed by Publisher to comply with any requirement of law or order of a court or administrative body (provided that Publisher agrees to notify Advertising.com of the issuance of such order and cooperate in its efforts to convince the court or administrative body to restrict disclosure); or (b) is known to or in the possession of Publisher prior to the disclosure of such Confidential Information to Publisher hereunder, as evidenced by the Publisher's written records; or (c) is known or generally available to the public through no act or omission of Publisher or its officers, directors, employees, agents, consultants, attorneys or independent contractors ("Representatives") in breach of this Agreement; or (d) is made available free of any legal restriction to Publisher by a third party. Publisher shall promptly reimburse, indemnify and hold harmless Advertising.com and its Representatives and other persons acting on its behalf, from and against any damage, loss or expense incurred by Advertising.com as a result of the breach of the confidentiality provisions in this Section 10 by Publisher or its Representatives. The duties and requirements under this Section 10 relating to the rights and obligations of the parties concerning Confidential Information disclosed during the term of the Agreement shall survive termination of this Agreement.
11. Non-solicitation. Publisher recognizes that Advertising.com has proprietary relationships with the third-party advertisers which provide Creatives via the Network and Publisher agrees not to intentionally solicit, induce, recruit, encourage, directly or indirectly, any advertiser that is known to Publisher to be an advertising client and/or customer of Advertising.com (e.g., an advertiser which provides Creatives via the Network), for purposes of offering products or services that are competitive with Advertising.com (including the provision of advertising inventory) nor contact such advertisers for any purpose, during the term of Publisher's membership in the Network and for the 90-day period following termination of Publisher's membership in the Network, provided however, that the foregoing restriction shall not apply to advertisers with whom Publisher already has a relationship prior to the placement of advertising on Publisher's Media on behalf of such advertisers by Advertising.com, as explicitly proven by documented evidence of such prior relationship provided by Publisher to Advertising.com immediately upon Advertising.com's written request.
12. Applicability. These terms and conditions, as and if amended, shall constitute the entire and only Agreement between the parties regarding Publisher's participation in the Network, and shall supercede all previous communications, representations or Agreements, whether written or oral between the parties.
13. Representations and Warranties.
(a) Publisher. Publisher represents and warrants that (i) all content, products, and services on its Media are legal to distribute, that it owns or has the legal right to use any and all copyrighted material and (ii) it will conduct its business and fulfill its obligations under this Agreement in compliance with all applicable laws, rules and regulations.
(b) Advertising.com. Advertising.com represents and warrants that it (i) has all necessary licenses and clearances to use the content contained in the Creatives and (ii) will comply with at all times, all applicable laws, rules and regulations relevant to the performance of its obligations under this Agreement.
14. Remedy. Advertising.com reserves the right to withhold payment and take appropriate legal action to cover its damages against any Publisher that violates these terms or breaches the representations and warranties set forth in this Agreement, or commits fraudulent activity against Advertising.com.
15. Modifications. Advertising.com reserves the right to change any of these Standard Terms at any time. Publishers are responsible for complying with any changes to the Standard Terms within 10 business days from the date of change. Advertising.com will post notice that changes have been made to the Standard Terms on the Publisher stats page http://reports.advertising.com or at http://publisher.advertising.com.
16. Warranties. NEITHER PARTY MAKES ANY WARRANTIES (INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT), GUARANTIES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN OR OTHERWISE EXCEPT AS EXPRESSLY SET FORTH HEREIN. ALL ORDERS ARE CONTINGENT UPON ADVERTISING.COM'S ABILITY TO PROCURE NECESSARY ON-LINE ACCESS AND UPON DELAYS CAUSED BY ACCIDENTS, WAR, ACT OF GOD, EMBARGOES, OR ANY OTHER CIRCUMSTANCES BEYOND ITS CONTROL. ADVERTISING.COM WILL MAKE EVERY EFFORT TO MEET SCHEDULED DELIVERY AND ONLINE DATES, BUT MAKES NO GUARANTEE AND ACCEPTS NO LIABILITY FOR ITS FAILURE TO MEET SAID DATES.
17. Governing Law. The relationship between Advertising.com and Publisher will be governed by, and construed in accordance with, the laws of the State of Maryland without regard to its laws or regulations relating to conflicts of laws. Each party hereby irrevocably consents to the exclusive jurisdiction of the courts of the State of Maryland and the federal courts situated in the State of Maryland in connection with any action arising between the parties.
18. Severability and Waiver. If any provision of this agreement shall be held or made invalid or unenforceable by a court decision, statute, rule or otherwise, the remaining provisions of this agreement shall not be affected thereby and shall continue in full force and effect. Any waiver (express or implied) or delay by Advertising.com of any default or breach of this agreement shall not constitute a waiver of any other or subsequent default or breach.
19. Privacy. Publisher shall support Advertising.com's commitment to protect the privacy of Internet users; such commitment is set forth in Advertising.com's Privacy Statement, (http://www.advertising.com/privacy/privacy.html) which is hereby incorporated into these terms and conditions. In addition, Publisher represents and warrants that it shall, at all times during the term of this Agreement (i) maintain a privacy statement that complies with applicable law and (ii), provide a brief explanation within its privacy statement explaining that it allows third parties, including Advertising.com, to serve Creatives within its Media which explanation shall include a clear and conspicuous link to Advertising.com's privacy statement.
20. Force Majeure. Neither party will be liable for delay or default in the performance of its obligations under this Agreement 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. To the extent that a force majeure has continued for five (5) business days, either party may terminate the Agreement without penalty.
ADDITIONAL TERMS WHICH APPLY TO WEB SITES
The following terms supplement the Standard Terms and apply only to Creatives delivered by Publisher on Web Sites ("Web Delivery Supplemental Terms"). In the event of any inconsistency between the Standard Terms and the Web Delivery Supplemental Terms, the Web Delivery Supplemental Terms shall control.
Approval Requirements: Advertising.com reserves the right to withhold approval of Web Sites to participate in the Network for any or no reason. Any Publisher that materially changes their Web Site content to attract a different target audience after approval into the Network MUST notify Advertising.com of the changes in writing IMMEDIATELY. Notices should be sent to Publisher's Account Manager or to publisher@advertising.com.
Representations and Warranties: Publisher represents and warrants that it shall NOT:
(a) Intentionally place Creatives on blank web pages or on web pages with no content; stack Creatives (e.g. place on top of one another so that more than 2 ads are next to each other); or place Creatives on non-approved Web Sites or web pages, or in such a fashion that may be deceptive to the visitor. However, Publisher may provide related links and recommendations regarding an advertiser if such actions reflect sound business practices.
(b) Place advertisements on any Web Site (i.e, a specific URL) other than the Web Site for which the advertisement was accepted, or place advertisements intended for Web Sites on or within any other Media other than Web Sites.
(c) Unless specifically approved by Advertising.com in writing, resell any Creatives to other Web Sites, Publishers, or any other third parties.
(d) Serve Creatives from any location other than the Advertising.com server. Stored images that are loaded from a different location will not count towards any statistic or payment.
ADDITIONAL TERMS WHICH APPLY TO EMAIL LISTS
The following terms supplement the Standard Terms and apply only to Creatives delivered by Publisher to Email Lists (the "Email Delivery Supplemental Terms"). In the event of any inconsistency between the Standard Terms and the Email Delivery Supplemental Terms, the Email Delivery Supplemental Terms shall control.
Responsibilities and Representations:
(a) In addition to the responsibilities set forth in the Standard Terms, Publisher specifically accepts and agrees to abide by Advertising.com's Email Guidelines found at http://nn.advertising.com/nln/emailguidelines.jsp, which are hereby incorporated by reference.
(b) All Email Lists must be 100% permission based (opt-in or opt-out).
(c) Publisher represents and warrants that (i) all email addresses collected or used by it in the delivery of Creatives under this Agreement were collected in full compliance with all applicable state, federal and local laws, including, but not limited to the CAN-SPAM Act of 2003, and that Publisher has the legal right to deliver email messages to such addresses as contemplated herein without violating any law or regulation; and (ii) any Creatives delivered by Publisher under this Agreement to Publisher's Email Lists shall be delivered in compliance with all federal, state and local laws and regulations, specifically including, but not limited to, the CAN-SPAM Act of 2003.
(d) Publisher must send a copy of each email containing Creatives to Advertising.com for content verification to Publisher's Account Manager or to publisher@advertising.com.
(e) Publisher represents and warrants that (i) it shall not send any emails which contain Creatives with false, deceptive or misleading header or routing information; (iii) it shall not send any emails which contain Creatives with false, deceptive or misleading subject lines; (iv) any and all emails sent by Publisher which include Creatives shall accurately identify Publisher as the sender of the email and shall include a valid, working return email address and physical address for recipients to respond to Publisher; (v) any and all emails sent by Publisher which include Creatives shall include Publisher's physical mailing address; (vi) any and all emails sent by Publisher which include Creatives shall include a clear, conspicuous, easy to use, "opt-out" method for email recipients to opt-out of receiving additional emails from Publisher for a period of at least thirty (30) days after any such email is sent; (vii) it shall not resell any email address that has requested to "opt-out" of Publisher's Email List and recognizes that under the CAN-SPAM Act of 2003 it is illegal to do so; (viii) it shall honor and promptly process opt-out requests made by subscribers to Publisher's Email List, and in any case, no later than ten (10) days after receipt of such opt-out request; and (ix) it shall honor and abide by any "Do Not Send" list(s) provided by advertising clients of Advertising.com, and shall suppress such advertising clients' "Do Not Send" list(s) against Publisher's mailing list before sending any emails that include such advertising clients' Creatives. Publisher shall promptly reimburse, indemnify and hold harmless Advertising.com from and against any damage, loss or expense incurred by Advertising.com as a result of the breach by Publisher of the provisions in this section of the Standard Terms.
(f) All emails sent by Publisher under this Agreement shall be delivered to Email Lists owned or managed solely by Publisher. Brokering third party deals to deliver Creatives is strictly prohibited and grounds for immediate termination, as well as other legal remedies.
(g) Under no circumstances may a Publisher, without the prior, express written consent of Advertising.com, (i) send an email that contains a Creative so that it appears to the recipient to have been sent by Advertising.com or one of Advertising.com's advertising clients, or (iii) send any email that contains a Creative using a subject line that refers or relates to such Creative in any way, which subject line has not been approved by Advertising.com for use with that particular Creative. Such activity is strictly prohibited and grounds for immediate termination without pay. Furthermore, Publisher recognizes that a breach of the foregoing conditions could result in immediate, extraordinary and irreparable damage to Advertising.com and its relationships with its advertising clients, and that damages may be difficult to measure. Therefore, Publisher agrees that should they violate the foregoing conditions or Advertising.com's Email Guidelines found at http://nn.advertising.com/nln/emailguidelines.jsp, Advertising.com may, in addition to other legal remedies, terminate Publisher's participation in the Network immediately without pay and assess liquidated damages of up to $10,000.00 per occurrence of each such violation. Publisher further agrees that such liquidated damages are reasonable. Request for approval of modifications to Creatives should be sent to Publisher's Account Manager or to publisher@advertising.com.
(h) If Publisher intends on using a subject line that refers or relates to a Creative in any way in the delivery of their emails, Publisher may only use the approved subject lines provided in the Network for delivery of emails that contain such Creatives. No Publisher may (i) alter, modify, or otherwise change approved subject lines provided in the Network, OR (ii) deliver an email Creative with no subject line, OR (iii) create their own subject line referring to an email Creative, for use in delivering such Creatives. Subject to the terms and conditions set forth herein, Publisher may create their own subject line for delivering email Cretives, provided such subject lines are not in any way related to the particular email Creative (i.e., Publisher may create a subject line that refers or relates to their particular email publication).
(i) Without limiting Advertising.com's other termination rights, provided Publisher's Email List is directed towards Internet users located within the United States as determined upon joining the Network, Advertising.com reserves the right to terminate Publisher's participation in the Network immediately should the amount of United States-based traffic to a Publisher's Email List (determined by the IP address of visitors to Publisher's Email List as recorded by Advertising.com) equals less than 75% of the total traffic to such Email List (determined by the total number of click-throughs delivered by Publisher as recorded by Advertising.com), provided, however, should Advertising.com exercise it's rights pursuant to this paragraph, Publisher shall be entitled to receive payment for any Units delivered up to and including the date of termination, as long as Publisher's earnings equal at least $25.00 at the date of termination, amounts under $25.00 shall be forfeited.
(j) Publisher is required and agrees to maintain at all times during their participation in the Network, and for a period of three (3) years after any termination from the Network, complete and accurate subscriber sign-up/registration data for every subscriber to Publisher's Email Lists. Publisher agrees that, within twenty-four (24) business hours of Advertising.com's request, it shall provide, at a minimum, the following subscriber sign-up/registration data for any email address that Publisher sends an email to with a Creative: (1) subscriber email address used to sign-up/register for Publisher's Email List, (2) subscriber's IP address, (3) date and time of subscriber's sign-up/registration for Publisher's Email List, and (4) location of subscriber's sign-up/registration (i.e., what is the original source of the subscriber email address; where did they sign-up/register for Publisher's Email List).
(k) Publisher understands that certain Creatives, as identified in the Network, may only be delivered within emails that contain NO OTHER CONTENT. Any Creatives identified as such in the Network and delivered by Publisher to Publisher's Email List MAY NOT BE INCLUDED IN EMAILS THAT HAVE ANY OTHER ADS OR CONTENT of Advertising.com or any other content provider.
ADDITIONAL TERMS WHICH APPLY TO CO-REGISTRATION
The following terms supplement the Standard Terms and apply only to Creatives hosted by Publisher on certain pre-approved Landing Pages, in an attempt to generate Actions and collect Action data, in each case, on behalf of Advertising.com's advertising clients who use Advertising.com's co-registration service (the "Co-Reg. Supplemental Terms"). In the event of any inconsistency between the Standard Terms and the Co-Reg. Supplemental Terms, the Co-Reg. Supplemental Terms shall control.
Approval Requirements: Approval to participate in the Network's co-registration service shall require Publisher to contact and seek approval from the Advertising.com media representative indicated within the Network. Creatives may not be placed on any Landing Page not specifically approved by Advertising.com. In addition, the Landing Page, the Creative set-up on Publisher's Landing Page, and the process for generating Actions are each subject to Advertising.com's prior written approval and, in each case, screen shots of the approved Landing Page, Creative set-up and process for generating Actions must be provided to Advertising.com prior to delivery of any Units. PUBLISHER MAY NOT MAKE ANY CHANGES TO THE LANDING PAGE, THE CREATIVE SET-UP, OR THE PROCESS FOR GENERATING ACTIONS WITHOUT ADVERTISING.COM'S PRIOR WRITTEN APPROVAL. PUBLISHER UNDERSTANDS AND AGREES THAT SHOULD PUBLISHER MAKE CHANGES TO THE APPROVED LANDING PAGE, THE CREATIVE SET-UP, OR PROCESS FOR GENERATING ACTIONS WITHOUT THE PRIOR WRITTEN APPROVAL OF ADVERTISING.COM, PUBLISHER SHALL NOT BE PAID FOR ANY ACTIONS DELIVERED TO ADVERTISING.COM AFTER SUCH UNAPPROVED CHANGES ARE MADE BY PUBLISHER. To insure compliance with these terms and conditions, and notwithstanding the generality of the foregoing, any Publisher that materially changes their Web Site content to attract a different target audience after approval for membership MUST notify Advertising.com of the changes in writing IMMEDIATELY. We prefer you notify us ahead of time of any such changes in content or design. Notices should be sent to Publisher's Account Manager or to publisher@advertising.com.
Collection/Ownership of Data: Publisher understands that all Action data, including, but not limited to, personally identifiable information provided by individual web users on the Landing Page in response to a Creative, is the sole and exclusive property of advertiser for which such Creative relates, is subject to such advertiser's current privacy policy, and is considered Confidential Information of such advertiser and Advertising.com and must be protected in a manner consistent with this Agreement including Section 10 of the Standard Terms. Publisher shall not make any use of, copy, make derivative works from, sell, transfer, lease, assign, redistribute, disclose, disseminate, or otherwise make available in any manner, such information, or any portion thereof, to any third party. Unless otherwise agreed to in writing by the parties, any other use of such information is strictly prohibited.
Representations and Warranties: Publisher represents and warrants that it shall not intentionally solicit, induce, recruit, encourage, directly or indirectly, any advertiser that is known to Publisher to be an advertising client and/or customer of Advertising.com (e.g., an advertiser whose Creative is placed on Publisher's Web Site through the Service), for purposes of offering products or services that are competitive with Advertising.com (including the provision of advertising inventory) nor contact such advertisers for any purpose, during the term of this Agreement and for the 90-day period following termination of the Agreement, provided however, that the foregoing restriction shall not apply to advertisers with whom Publisher has maintained a Continuous Engagement for the six (6) month period prior to entering into this Agreement, as explicitly proven by documented evidence of such Continuous Engagement provided by Publisher to Advertising.com immediately upon Advertising.com's written request. For purposes of this Agreement, "Continuous Engagement" shall mean the relevant advertiser entered into an agreement directly with Publisher to place such advertiser's Creatives on inventory owned or managed by Publisher.
Counting; Delivery of Action data: Advertising.com shall have the sole responsibility in its absolute and sole discretion for calculation of statistics, including Impressions, Unique Clicks and Actions. Publisher shall transmit all Action data to Advertising.com on daily basis or as otherwise agreed to by the parties in writing. Advertising.com shall designate to Publisher the required data format for the delivery of the Action data, which Action data may NOT be delivered via unencrypted email. Actions submitted (i) with invalid or false information, or (ii) not in the required data format, shall not be eligible for payment. Additionally, unless otherwise specifically agreed to by the parties in writing, Actions already in Advertising.com's advertiser client's active database at the time the Action is delivered by Publisher shall not considered valid Actions and shall not be eligible for payment ("Duplicates"). Each month, Advertising.com shall report to Publisher the number of payable Actions on a bi-weekly basis, or as otherwise agreed to by the parties in writing, which report, if requested by Publisher, shall also include a detailing of Duplicates and Actions that are not payable due to invalid or false information or due to improper formatting. Statistics shall be available to Publisher online at http://reports.advertising.com or at http://publisher.advertising.com. Publisher understands that Advertising.com's online statistics may not be 100% accurate and that Advertising.com may make adjustments to Publisher's online statistics at the end of each calendar month to account for, among other things, specific contractual provisions (e.g., bonuses) and, removal of Duplicates and Actions with invalid or false information, and statistical errors.
ADDITIONAL TERMS WHICH APPLY TO USE OF THE COMPANY'S ADROTATORSM SERVICE.
The following terms supplement the Standard Terms and apply only to Creatives delivered by Publisher using the Company's AdRotator service. In the event of any inconsistency between the Standard Terms and these AdRotator Service Terms, the AdRotator Service Terms shall control.
Publisher may elect to use the Company's AdRotator service when delivering Creatives selected from Currently Available Creatives on Web Sites. The AdRotator service enables Publisher to customize delivery of a group of Creatives on his or her Web Sites. If Publisher elects to set the weighting for Creative distribution using AdRotator, the total weighting must equal one hundred percent (100%). The Company shall use commercially reasonable efforts to serve Creatives based on the weighting set by Publisher, but the Company makes no guarantees that the AdRotator service will distribute Creatives exactly at the weighting set by Publisher. The AdRotator service will only serve Creatives that continue to be available in the Network and have Units remaining for delivery. If a Creative selected by Publisher is no longer available in the Network, or no longer has Units remaining for delivery, (i) the AdRotator service will automatically redistribute weighting and continue to serve Creatives selected by Publisher that continue to be available and have Units remaining, and (ii) Publisher shall receive an email notifying them that they can add additional Creatives to their rotation. If Publisher chooses to allow the Company's proprietary AdLearn® technology to determine weighting for Creative distribution and/or the Creatives to be served on Publisher's inventory, Publisher agrees and understands that weighting for Creative distribution and/or Creative selection, as applicable, shall be determined by the Company in its sole and absolute discretion, provided that Publisher may block particular Creatives from being delivered to their inventory by checking the "Block" column next to the relevant campaign in Publisher's manage account interface at http://publisher.advertising.com.
太长了看的头晕！
还有顺便问一下www.bidvertiser.com这家公司对中国会员还支付么？
[ 本帖最后由 jxsfxx 于 2006-3-13 12:30 编辑 ] |
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发表于 2006-3-13 12:26:18
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