Publisher Terms and Conditions
ADVERTISING.COM PUBLISHER TERMS AND CONDITIONS
These Advertising.com Publisher Terms and Conditions ("Terms"), the addenda attached hereto, which are hereby incorporated by reference ("Addenda"), and any inventory purchase agreement entered into between the parties ("IPC") (collectively, the "Agreement"), between Advertising.com LLC and its affiliates, ("Advertising.com"), and Publisher shall govern Publisher's participation in the Advertising.com Network. In the event of any inconsistency between the Terms, the Addenda and an IPC, the following order of precedence shall apply: the IPC, followed by the Addenda, followed by the Terms. Capitalized terms not defined herein shall have the meanings assigned to them in the Addenda.
1. DEFINITIONS
"Action" means a specific activity that is required to qualify for the payment of the display of a Creative, i.e., click, purchase, registration, etc., which activity will be set forth in the IPC or in the associated online program.
"Advertising.com Marks" means Advertising.com's trademarks, service marks, logos and trade dress.
"Advertising.com Network" means the centrally managed group of third party Websites through which Advertising.com can distribute Creatives, including the Display Network, Video Network, Sponsored Listings Network, Data Network, and Mobile Network.
"Data Network" means Advertising.com's centrally managed group of third party Websites through which Advertising.com collects Data.
"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 advertisements of any type used by Publisher hereunder, including, but not limited to, buttons, banners, text-links, pop-ups, pop-unders, Display Creatives, Sponsored Listings Creatives, Video Creatives and Mobile Creatives.
"Display Creative" means a graphic image(s) or media object(s) used as an advertisement.
"Display Network" means Advertising.com's centrally managed group of third party Websites through which Advertising.com distributes Display Creatives.
"Impressions" means the number of times a Creative is served to, and received by, a Unique Visitor on the Publisher Website(s) as measured by Advertising.com, not including automated page refreshes. Notwithstanding the foregoing a Video Creative served with any companion banner shall count as a single Impression as measured by Advertising.com.
"Invalid Click" means any click on a Creative that (i) 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 Website(s), or because of alterations made by Publisher or erroneous coding placed on the Publisher Website(s); or (ii) results from applying repeated manual or mechanically automated clicks on mouse or keyboard or any other non-human click generation processes (including but without limitation robots, spiders, scripts or other software) as well as all other clicks resulting from methods that Advertising.com determines to be fraudulent in nature, or resulting from incentives or misleading or coercive means.
"Mobile Creative" means a Creative specifically designed to display on mobile telecommunications devices, such as cellular phones or PDAs accessing a Website.
"Mobile Network" means Advertising.com's centrally managed group of third party Websites through which Advertising.com distributes Mobile Creatives.
"Net Revenue" means, with respect to any particular period of time, the amount invoiced by Advertising.com to advertisers with respect to Creatives on the Publisher Website, less the following deductions: (i) transaction fees, (ii) third party campaign referral fees and commissions, (iii) applicable ad serving and technology fees paid to third parties, (iv) fees paid by advertisers for training and implementation services, and (v) Invalid Clicks.
"Revenue Share" means, with respect to a campaign for which payment is based upon a percentage of Net Revenue, such payment shall be the amount equal to the product of (i) the Net Revenue during such calendar month, multiplied by (ii) the revenue share percentage payout rate set forth in the applicable Addenda or IPC.
"Network Tags" means scripts provided by Advertising.com that are designed to be inserted into the code of the Publisher Pages, which scripts communicate with servers designated by Advertising.com and request transmission from those servers of Creatives.
"Publisher" means the individual or entity entering into this Agreement, as set forth in the applicable Addenda or IPC.
"Publisher Marks" means Publisher's trademarks, service marks, logos and trade dress.
"Publisher Page" means a web page on the Publisher Website.
"Publisher Website" means a Website or Websites owned or operated by Publisher, or on which Publisher is otherwise legally authorized to act in the manner contemplated by this Agreement.
"Sponsored Listings Network" means Advertising.com's centrally managed group of third party websites through which Advertising.com distributes Sponsored Listings Creatives.
"Sponsored Listings Creative" means a text-based reference to an advertiser's products or services, which includes a link to such advertiser's website, and which may also include an image and/or logo.
"Unique Click" means the number of times, as recorded by Advertising.com, a person viewing the Publisher Website(s), as identified by cookie or IP address, clicks on a Creative, provided however, that a click on a specific Display Creative by a particular person shall only be counted as a Unique Click once every 1-hour period.
"Unique Visitor" shall mean a visitor to the Publisher Website as identified by Advertising.com based on such visitor's IP address.
"Video Creative" means a broadband video advertising unit as more fully described in the IAB Digital Video In-Stream Ad Format Guidelines located at http://www.iab.net/media/file/IAB-Video-Ad-Format-Standards.pdf.
"Video Network" means the centrally managed group of third party Websites through which Advertising.com distributes Video Creatives.
"Website" means a file or collection of files identified by a common domain name and located on a common server(s), each of which files contains a web object or collection of objects that provide content or functional instructions for user-accessible web pages, which files are publicly available via the Internet. With respect to Publisher‘s participation in the Mobile Network, the term "Website" as used in the Agreement shall mean any website or application specifically designed to display on mobile telecommunications devices, such as cellular phones or PDA's.
2. Implementation. a) Network Tags. Advertising.com requires placement of Network Tags on the Publisher Websites participating in the Advertising.com Network. Publisher shall use reasonable efforts to promptly place and enable the Network Tags. From time to time, certain customizations may be required during this Agreement to ensure the Network Tags operate as intended, Publisher agrees to cooperate with Advertising.com to implement such customizations.
b) License Grant. Subject to the terms and conditions of this Agreement, Advertising.com grants to Publisher a limited, non-transferable, non-exclusive, non-sub-licensable right and license to use the Network Tags and Creatives, solely for the purposes of performance of this Agreement and solely during the term of this Agreement.
c) Restrictions. Publisher shall place the Network Tags only on the Publisher Website(s) that have been approved by Advertising.com and have been specified in the IPC or subsequently approved by Advertising.com in writing in accordance with this paragraph. Publisher may submit a written request to Advertising.com (with email being sufficient) to add additional Publisher Websites(s), and Advertising.com shall approve or reject such request in writing in its sole discretion (with email being sufficient). Network Tags may not be placed within any Website(s) or on any URLs not specifically approved for participation in the Advertising.com Network. Publisher shall not: (i) sell, rent, lease, sublicense, transfer, distribute or otherwise make available the Network Tags or Creatives or any copies thereof to any third party; (ii) translate, reverse engineer, decompile or disassemble the Network Tags; (iii) create derivative works based upon the Network Tags; (iv) alter, destroy or otherwise change the Network Tags or Creatives (except as authorized in this Agreement); or (v) copy the Network Tags or Creatives, except for performance of this Agreement or for backup, archival and disaster recovery purposes.
d) Prohibited Content. Advertising.com does not accept any Website that contains the following content: (i) any content that contains or promotes concepts that are hateful or disparaging towards any race, religion, gender, sexual orientation or nationality; (ii) any content that promotes firearms, bombs and other weapons or how-to guides for any of the above; (iii) Any content that contains or promotes illegal activities, including, but not limited to hacking, phreaking and online gambling; (iv) any content that contains or promotes pornography or graphic sexual depictions; (v) any content that contains, promotes or links to indecent, obscene or highly explosive subject matter; (vi) Any content that facilitates or promotes illegal file-sharing (MP3s, copyright protected video, or the equivalent) (collectively referred to as the "Prohibited Content"). Publisher represents and warrants that during the term of this agreement none of the Publisher Websites on which it places Creatives shall contain or promote any Prohibited Content.
e) Ownership Rights. Except for the limited license rights expressly granted to Publisher in this Agreement, Advertising.com retains all right, title and interest in and to the Advertising.com Network, the technology utilized by Advertising.com to operate the Advertising.com Network, the Network Tags, and the Creatives, including but not limited to all patent, trademark, copyright, trade secret and all other intellectual property rights therein.
f) Publisher Responsibilities. Publisher is solely responsible, at its own expense, for procuring, maintaining and operating all hardware, software, networks, systems and third-party services (e.g., Internet access) necessary to (i) operate the Publisher Website(s), (ii) use the Network Tags, (iii) display the Creatives, and (iv) access and use the Advertising.com Network services. Advertising.com will provide reasonable assistance to implement the Network Tags. Notwithstanding the previous sentence, Publisher is solely responsible for ensuring that such hardware, software, networks, systems and third-party services are compatible with the Network Tags, and Advertising.com makes no representation or warranty regarding any such compatibility.
3. Prohibited Activities. Publisher agrees that it shall NOT, unless it has received written authorization from Advertising.com:
a) Intentionally place Network Tags 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);
b) Place Network Tags on non-approved Websites or web pages, or in such a fashion that may be deceptive to the visitor;
c) Place Network Tags on any Website (i.e, a specific URL) other than the Website for which the Creative was accepted, or place advertisements intended for Websites on or within any other media other than Websites;
d) Resell any Network Tags or Creatives to other Websites, publishers, or any other third parties;
e) 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);
f) Alter, copy, modify, take, sell, re-use, or divulge in any manner any Network Tags or Creatives; provided that Publisher may, solely with respect to Display and Mobile Creatives, change the font type, font style, and font size of text-link advertisements offered on the Advertising.com Network only for the purpose of matching the font in the Publisher Website(s) without prior approval;
g) Serve Creatives, or drive traffic to such Creatives, using any downloadable applications;
h) Induce persons to click on Creatives based on incentives (e.g. rewards programs);
i) Send emails to persons other that those persons who have requested to receive such emails (i.e., spamming) or use unsolicited email or inappropriate newsgroup postings to promote Creatives;
j) Use autospawning browsers, or automatic redirecting of visitors, blind text links, misleading links, forced clicks (i.e. requiring a visitor 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;
k) Place Network Tags on any surf bars or any other downloadable software applications or any advertising space created by such bars or downloadable software applications.
Publisher recognizes that a breach of any 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. Upon a determination by Advertising.com, in its sole discretion, that Publisher has violated any of the foregoing conditions, Publisher agrees that 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. a) General. Payment to Publisher shall be based on the payment terms and rates set forth in the applicable Addenda or IPC (e.g., CPM, CPC, CPA, Revenue Share). Specific payout programs rates shall be set forth in the applicable Addenda or IPC. Unless otherwise set forth in the applicable Addenda or IPC, Payments shall be made by Advertising.com no later than the 30th day after the end of the month in which revenue was earned by Advertising.com, except for payments with respect to Mobile Creatives, which shall be paid no later than the 45th day after the end of the month in which revenue was earned on such inventory. Publisher may be paid at the account level (i.e., if Publisher has multiple accounts, each account may be evaluated independently). No checks will be issued for any amounts less than $25 U.S.D. All un-issued earnings will roll over to the next pay period in which the amounts due exceed $25 U.S.D. Any dispute regarding a payment hereunder must be submitted to Advertising.com in writing within sixty (60) days of such payment or it shall be deemed waived. To ensure timely payment, Publisher must notify Advertising.com at publishers@advertising.com of any changes to its account information, including change of address, phone or email address. In the event that a payment sent by Advertising.com to Publisher's last known address is returned by the post office as undeliverable, Advertising.com shall have the right to terminate this Agreement immediately upon written notice to Publisher. If Publisher has failed to notify Advertising.com of changes in Publisher's account information, causing Advertising.com to be unable to notify Publisher in writing, then this Agreement shall terminate without notice, and all payments due Publisher shall be governed by the Uncashed Check provision below as if the payments due had been in the form of an uncashed check.
b) Uncashed Checks. If Advertising.com mails a check for a payment due Publisher under this Agreement to the Publisher's last known address, Publisher must cash said check within one (1) year of the date of the check or failing so to do, Publisher agrees that: (i) the funds represented by the uncashed check shall be disposed of without further notice as provided herein; (ii) for a Publisher whose last known address is in a state that has a business to business exemption in its unclaimed property laws, the Publisher agrees that it shall have no further interest in the funds represented by the uncashed check, and Advertising.com shall succeed to the Publisher's interests therein; (iii) for all other Publishers, the funds represented by the uncashed check shall be deemed abandoned under applicable unclaimed property law; and (iv) Publisher agrees that one year is a reasonable period after the expiration of which the actions described above shall be taken.
c) Withholding Payment. Advertising.com reserves the right to withhold payment from Publisher if Publisher has engaged in activity that is deceptive or fraudulent in nature as determined by Advertising.com in its sole discretion. Examples of such deceptive or fraudulent acts may include, without limitation, clicks without referring URLs, extraordinary high numbers of repeat clicks, and clicks from non-approved root URLs. In addition, with respect to Display Creatives, 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.
d) Taxes. Advertising.com assumes no responsibility for paying income taxes on behalf of Publisher. By participating in the Advertising.com Network, Publisher assumes complete and sole responsibility for any taxes owed as a consequence of such participation and agrees to indemnify and hold Advertising.com harmless from any such taxes. Advertising.com shall provide Publisher with appropriate tax information, including earnings on Form 1099 as required by applicable law. If Publisher resides in the United States, then Publisher agrees to provide its 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. If Publisher resides outside of the United States, then Publisher may be asked to complete appropriate forms for tax purposes and agree to accurately complete such forms. Advertising.com may withhold payment from Publisher in the event that Publisher does not provide accurate tax information or complete any necessary tax or reporting forms, as determined in Advertising.com's sole and absolute discretion.
e) PUBLISHER UNDERSTANDS AND ACKNOWLEDGES THAT THERE IS NO GUARANTEE THAT ANY MINIMUM LEVEL OF REVENUE, OR ANY REVENUE, WILL BE GENERATED AS A RESULT OF THIS AGREEMENT.
5. Counting. Advertising.com shall have the responsibility in its absolute and sole discretion for calculation of statistics and payments, including, but not limited to, Impressions, Unique Clicks, Actions and revenue generated on or through the Publisher Website(s), as applicable.
6. Use of Data and Privacy. Advertising.com receives data regarding end users (e.g. IP address, cookie information) in connection with the performance of its obligations under this Agreement. Except as expressly stated in the applicable Addenda with respect to Mobile Creatives, all such data is non-personally identifiable. Advertising.com will only use and disclose such data for any purpose in a manner consistent with Advertising.com's Privacy Statement, which can be found at http://advertising.aol.com/privacy. 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 to serve Creatives within its Website(s).
7. Term; Termination. This Agreement shall terminate and renew in accordance with the term and termination provisions of the applicable Addenda and/or IPC. Upon termination, any licenses granted by Advertising.com hereunder shall immediately terminate and Publisher must remove all Network Tags from its Website(s) and cease delivery of any and all Creatives. In the case of termination, Advertising.com will pay Publisher all uncontested amounts due during the next billing cycle as set forth in Section 4. The following Sections of the Agreement, and those which by their nature are ongoing obligations, shall survive any expiration or termination of this Agreement: 5, 6, 7, 8, 9, 10, 16, 17, 18 and 19.
8. Limitation of Liability. ADVERTISING.COM WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR OTHER SIMILAR DAMAGES NOR FOR ANY LOSS OF PROFITS, LOSS OF REVENUES, LOSS OF SAVINGS, LOSS OF CLIENTELE, LOSS OF USE OR LOSS OR CORRUPTION OF DATA, WHETHER UNDER TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHER THEORIES OF RECOVERY, EVEN IF ADVERTISING.COM WAS OR SHOULD HAVE BEEN AWARE OR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL ADVERTISING.COM'S LIABILITY ARISING OUT OF THIS AGREEMENT FROM ANY CAUSE OF ACTION WHATSOEVER EXCEED THE AGGREGATE AMOUNTS PAID OR OWED UNDER THIS AGREEMENT BY EITHER PARTY DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE THE CAUSE OF ACTION AROSE. 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 hereby agrees to defend, settle and pay damages on behalf of Advertising.com and its officers, directors, agents, affiliates and employees associated with any and 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 the Publisher Website(s) (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 term, condition, 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 Website(s) (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 defend, settle and pay damages on behalf of Publisher and its officers, directors, agents, affiliates and employees associated with any and 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 term, condition, 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 prompt written notice of the claim by the indemnified party, provided that any delay in providing notice shall not relieve the indemnifying party of its indemnity obligations under this Agreement unless, and only to the extent, the indemnifying party was prejudiced by the delay; (y) the indemnifying party shall have the right to control the defense and all negotiations relative to the settlement of any such claim, provided that no settlement admitting liability on the part of the indemnified party may be made without the express written consent of the indemnified party; and (z) the indemnified party shall reasonably cooperate with the indemnifying party and its counsel at the indemnifying party's cost and expense.
10. Confidentiality. Each party acknowledges that during the performance of its duties and obligations under this Agreement, that it may be required to disclose ("Discloser") to the other party ("Recipient") certain information that it regards as proprietary or confidential.
a) Defined. As used in this Agreement, the term "Confidential Information" shall refer to either party's: (i) 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 other information that is not generally known to the public, including information about personnel, products, customers, financial information, marketing and pricing strategies, services or future business plans; and (v) any and all analyses, compilations, studies, notes or other materials prepared that contain or are based on Confidential Information received from the other party.
b) Obligations. Recipient agrees that it will not disclose any Confidential Information of the Discloser to any third-party, and that it will not use Confidential Information for any purpose not permitted under this Agreement. Recipient will protect the Confidential Information in the same manner it protects its own confidential and proprietary information, but in no event shall such protection be less than a reasonable standard of care.
c) Exceptions. The foregoing obligations shall not apply to the extent Confidential Information: (i) must be disclosed by Recipient to comply with any requirement of law or order of a court or administrative body (provided that Recipient agrees to notify Discloser of the issuance of such order and cooperate in its efforts to convince the court or administrative body to restrict disclosure); or (ii) is known to or in the possession of Recipient prior to the disclosure of such Confidential Information to Recipient hereunder, as evidenced by the Recipient's written records; (iii) is known or generally available to the public through no act or omission of Recipient or its officers, directors, employees, agents, consultants, attorneys or independent contractors in breach of this Agreement; or (iv) is made available free of any legal restriction to Recipient by a third party. Notwithstanding anything to the contrary in this Agreement, Advertising.com may use and disclose any aggregate information (i.e. information that does not identify or relate specifically to Publisher), which it has collected or received in providing the service, but only to the extent necessary to perform, enhance or improve its services and/or for Advertising.com's business and marketing purposes.
11. Publisher Marks. Publisher authorizes Advertising.com to disclose its membership in the Advertising.com Network and grants Advertising.com a non-exclusive right and license to use, reproduce and display the Publisher Marks in connection with Advertising.com's sales documents and presentations and as otherwise needed to perform its obligations under this Agreement. Publisher may not disclose its membership in the Advertising.com Network or use the Advertising.com Marks without the prior written consent of Advertising.com.
12. Entire Agreement; Assignment. This Agreement, as and if amended, and the associated IPC shall constitute the entire and only agreement between the parties regarding Publisher's participation in the Advertising.com Network, and shall supersede all previous communications, representations or Agreements, whether written or oral between the parties relating to the services provided hereunder. Publisher may not assign this Agreement or any IPC without the prior written consent of Advertising.com, which consent shall not be unreasonably withheld. Any assignment by Publisher without such consent shall be void ab initio. This Agreement shall inure to the benefit of all successors and assigns.
13. Representations and Warranties. a) Both Parties. Each party represents and warrants to the other that (i) it has the full right, power, and authority to enter into this Agreement; (ii) the execution of this Agreement and performance of its obligations under this Agreement do not and will not violate any other agreement to which it is a party; and (iii) this Agreement constitutes a legal, valid and binding obligation when agreed to.
b) Publisher. Publisher represents and warrants that (i) it is legally authorized to place the Network Tags on the Publisher Website(s) and owns or has the rights to all content, products, and services on the Publisher Website(s) sufficient to perform its obligations herein; and (ii) it will conduct its business and fulfill its obligations under this Agreement in compliance with all applicable laws, rules and regulations.
c) Advertising.com. Advertising.com represents and warrants that it (i) has all necessary licenses and clearances to use and permit Publisher to use the Network Tags and display the content contained in the Creatives in the manner authorized by this Agreement, and (ii) will comply with 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 engages in fraudulent activity.
15. Modifications. Advertising.com reserves the right to change this Agreement at any time. Publishers are responsible for complying with any changes to the Agreement within ten (10) business days from the date of change. Advertising.com will post notice that changes have been made to this Agreement on the Publisher statistics 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), GUARANTEES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN OR OTHERWISE AND ALL SUCH WARRANTIES ARE DISCLAIMED, EXCEPT AS EXPRESSLY SET FORTH HEREIN.
17. Governing Law; Venue. This Agreement will be governed by and construed in accordance with the substantive laws of the State of New York without regard to its conflict of law principles. Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the state and federal courts situated in the city of New York, New York in connection with any action arising between the parties.
18. Severability and Waiver; Captions. 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 either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach. The captions appearing in this Agreement are inserted only as a matter of convenience.
19. 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 ("Force Majeure"). To the extent that a Force Majeure has continued for five (5) business days, either party may terminate the Agreement or associated IPC without penalty.
20. Notices. Notices may be provided via e-mail, fax, or other written means and will be effective immediately.
DISPLAY NETWORK ADDENDUM
The following addendum supplements the Terms and applies only to delivery of Display Creatives available through the Display Network ("Display Network Addendum").
1. Approval; Availability of Inventory. Participation in the Advertising.com Network is subject to the prior approval of Advertising.com. Advertising.com reserves the right to withhold approval or withdraw approval of Websites to participate in the Advertising.com Network for any or no reason and at any time. Any Publisher that materially changes the Publisher Website content after approval into the Advertising.com Network must notify Advertising.com of the changes in writing immediately. Notices should be sent to Publisher's Account Manager or to publishers@advertising.com. Publisher's participation in the Advertising.com Network is non-exclusive and all inventory is preemptible at Publisher's sole discretion.
2. Launch and Suspension of Advertising Campaigns. Publisher shall activate the Network Tags on the Publisher Website(s) set forth in the IPC no later than thirty (30) days after execution of this Agreement. Publisher shall not remove the Network Tags for more than thirty (30) consecutive days during the term of this Agreement. In the event that Advertising.com determines that Publisher violated one or more of the foregoing sentences in this Section 4, the Revenue Share rate or other payment rate set forth in the IPC shall, at Advertising.com's option, revert to fifty percent (50%) of Net Revenue to Publisher for forty-five (45) days following the first violation (after which the Revenue Share or other payment rate shall return to the rate originally set forth in the IPC), or for the remainder of the Term following any subsequent violation.
3. Provision of Impressions. Publisher agrees that Advertising.com requires Publisher to deliver the Impressions smoothly (i.e., no Spikes in numbers of Impressions delivered). Unless otherwise agreed by Advertising.com in writing to accept Spikes, Advertising.com, may, in its sole discretion, reject Impressions that are not delivered smoothly. A "Spike" means the delivery of Impressions equal or greater than two times the number of Impressions contracted for in the applicable Addenda or IPC for five (5) consecutive days, subject to a minimum of (i) five million Impressions per day, on the Display Network, or (iii) one million Impressions per day on the Video Network.
4. Payment and Reporting. 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 or http://publishers.advertising.com. Publisher acknowledges that in some cases, Advertising.com will need to make adjustments to reported statistics due to specific contractual provisions (e.g., bonuses), Invalid Clicks, or statistical errors.
5. Termination. These terms and conditions, as and if amended, shall apply to Publisher for as long as Publisher is a member of the Advertising.com Network. Either party may terminate this Agreement or any IPC at any time, for any reason whatsoever, upon written notice to the other party.
6. Publisher Marks. Advertising.com may sell, promote or market the right to provide Creatives on the Publisher Websites, along with other websites, but only on a non-guaranteed, as-available basis, unless otherwise directed by Publisher in writing.
VIDEO NETWORK ADDENDUM
The following addendum supplements the Terms and applies only to delivery of Video Creatives available through the Video Network ("Video Network Addendum").
1. Excess Inventory. In the event that Publisher has available video advertising space within the Publisher Website(s) not otherwise having been filled by Publisher ("Excess Inventory"), Publisher, at its option, may elect to attempt to fill such Excess Inventory with Video Creatives offered by Advertising.com. The selection and display by Publisher of Video Creatives shall be governed by the Terms, the IPC, the Display Network Addendum and this Video Network Addendum.
2. Selection of Video Creatives. Advertising.com will notify Publisher in writing (with email being sufficient), to Publisher's designated representative(s), the details of each currently available Video Creative campaign, including advertiser, advertising rate, flight dates, third party tracking utilized by advertiser (if applicable) and the associated Video Creative (if available) ("Advertising Notice"). If Publisher chooses to reject a campaign, it shall notify Advertising.com of such rejection in writing (with email being sufficient). Acceptance of a Video Creative campaign does not guarantee that any Video Creatives will be served.
3. Delivery of Video Creatives. All Video Creatives available through the Video Network shall be served by Advertising.com or by the Video Network third party ad server. If an advertiser uses a third party tracking tool to record Impressions for a specific campaign, Advertising.com's calculation of the payment to Publisher may be adjusted to take into account the results of the third party reporting.
4. Termination. These terms and conditions, as and if amended, shall apply to Publisher for as long as Publisher is a member of the Advertising.com Network. Either party may terminate this Agreement or any IPC at any time, for any reason whatsoever, upon written notice to the other party.
MOBILE NETWORK ADDENDUM
The following addendum supplements the Terms and applies only to delivery of Mobile Creatives available through the Mobile Network ("Mobile Network Addendum").
1. Definitions.
"Mobile Advertising Inventory" means advertising space on the Mobile Website.
"Mobile Creative" means a Creative specifically designed to display on mobile telecommunications devices, such as cellular phones or PDAs accessing a Website.
2. Notice of Inventory. Publisher shall generally keep Advertising.com advised of any material changes to its Mobile Advertising Inventory (including providing at least fourteen (14) days' written notice (with e-mail being sufficient) of material increases or decreases in Mobile Advertising Inventory). Notwithstanding the foregoing, Publisher shall be fully responsible for providing all Mobile Advertising Inventory necessary to deliver any pre-sold campaigns of Mobile Creatives scheduled to appear on Publisher Website(s).
3. Sales Efforts. Advertising.com shall solicit Advertisers interested in placing Advertisements in the Mobile Advertising Inventory and use commercially reasonable efforts to sell Advertisements. Advertising.com makes no promise or guarantee as to clicks, Impressions or the level of sales of Mobile Advertising Inventory it will achieve. Publisher agrees that Advertising.com may provide Advertisers with free bonus / make-good Impressions where warranted in Advertising.com's good faith judgment. Unless otherwise agreed upon by the parties in writing, Advertising.com has the exclusive right to determine the administration of the hosting and serving of the Advertisements to appear in the Mobile Advertising Inventory, and any software and communications infrastructure necessary to administer such services. All Mobile Creatives shall comply with applicable law and the standard advertising guidelines of the Mobile Marketing Association.
4. Continuation in Certain Circumstances. In the event that this Agreement terminates at a time when a pre-booked campaign of Mobile Creatives scheduled to appear on Publisher Website(s) has not been completed, this Agreement shall continue in effect for the purposes of completion of such campaign.
5. Data Types. The parties acknowledge that certain types of data may be generated and used in connection with this Agreement: (a) "Specific Data", meaning personally identifiable data, including cell phone numbers of individuals who access Mobile Creatives and Publisher Website(s) and content ("Users"); and (b) "Aggregated Data", meaning that data received and generated by Advertising.com in connection with this Agreement that does not personally identify Users or Client, including, but not limited, to traffic analysis, usage reports, and aggregated information about User access to Advertisements and Advertising Inventory. As between Publisher and Advertising.com and to the extent permitted by law: (a) Publisher owns and retains all rights to Specific Data, and Advertising.com shall use Specific Data only for the purposes of this Agreement; and (b) Advertising.com owns and retains all rights to Aggregated Data. Advertising.com shall provide Publisher copies of Aggregated Data (relating to Publisher's Mobile Advertising Inventory only) on request.
6. Implementation Services and Other Services. The parties may agree from time to time that Advertising.com provide additional services not covered in the scope of this Agreement. Any such services, and associated fees payable, shall be set forth in writing and executed by both parties (a "Statement of Work"). The Statement of Work shall be governed by the terms and conditions in this Agreement. Excluding the services set forth in this Agreement, Advertising.com shall be under no obligation to provide additional services except as set forth in a Statement of Work. Publisher shall provide reasonable assistance to Advertising.com in the completion of all such services.
7. Term: This Agreement shall commence on the Effective Date and shall terminate on the one (1) year anniversary thereof ("Initial Term") and shall renew automatically for successive one-year periods (each, a "Renewal Term") unless either party notifies the other in writing at least thirty (30) days before the end of the Initial Term or any Renewal Term that it wishes to terminate the Agreement. The Initial Term and Renewal Terms are collectively referred to as the "Term". In addition, if either party materially breaches this Agreement and such breach is not cured within thirty (30) days of written notice thereof, then the non-breaching party may immediately terminate this Agreement upon written notice to the breaching party.
PUBLISHER PORTAL ACTIVITIES ADDENDUM
The following addendum ("Publisher Portal Activities Addendum") supplements the Terms and applies only to Publishers who are selecting Creatives through the Advertising.com online publisher portal ("Publisher Portal") or who have been approved for the Advertising.com tiered pricing program ("Tiered Pricing Program").
1. Definitions.
"Currently Available Creatives" means those Creatives provided by Advertising.com that are available for selection by Publisher to run on the Publisher Website.
"Landing Page" means the web page on Publisher Website where Publisher collects lead data when generating Actions.
"Run of Network" means the code provided by Advertising.com that automatically rotates multiple Creatives available in the Advertising.com Network on Publisher Website as determined by Advertising.com.
2. Restrictions. Publisher agrees to use the Currently Available Creatives only in accordance with the traffic instructions set forth at the time of selection, and only on Websites that have been specifically approved by Advertising.com pursuant to this Agreement. Publisher shall not use Creatives previously selected from the Currently Available Creatives for delivery in Publisher Website(s) at later dates, unless such Creatives continue to be available in the then Currently Available Creatives for such Website(s) AND such Creatives have Units remaining for delivery. Publisher shall not purchase keywords from search engine service providers with the intent and purpose to drive traffic to Creatives selected by Publisher or Landing Pages, including, but not limited to, purchasing keywords 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 Websites or within emails.
3. Publisher Obligations. IT IS THE PUBLISHER'S SOLE RESPONSIBILITY TO CHANGE CREATIVES WITHIN THEIR WEBSITE(S) 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. ANY NOTIFICATION PROVIDED BY ADVERTISING.COM IS FOR THE CONVENIENCE OF PUBLISHER AND DOES NOT ABROGATE PUBLISHER'S OBLIGATIONS HEREUNDER.
4. Additional Payment Terms. Payment for advertisements served in accordance with this Agreement will be made based upon payout rate as set forth in the online interface, depending on the Currently Available Creatives selected by Publisher. 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 WEBSITE(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 WEBSITE(S) PRIOR TO EXPIRATION OF A NOTICE PERIOD, IF PUBLISHER DOES NOT WISH TO BE AFFECTED BY A PAYOUT RATE CHANGE.
5. Tiered Pricing Program Payment Terms. The following terms shall apply to Publishers who have been approved to participate in Advertising.com's Tiered Pricing Program.
(a) Payment to Publisher shall be based on either a tiered CPM pricing model or on a revenue share basis, depending on performance.
(b) All delivery shall be subject to frequency capping and geo-targeting restrictions established by Advertising.com in its sole discretion.
(c) Pricing shall be established by Advertising.com prior to any delivery by Publisher and may be different for each of Publisher Website and Creative sizes. Unless otherwise agreed to in writing by Advertising.com, the initial price for which Publisher shall be paid for delivery on Publisher Website will be the middle CPM tier established by Advertising.com for such Website and Creative size.
(d) Notwithstanding the foregoing, Publisher understands that during the term of the Agreement Advertising.com will evaluate the performance of Publisher's inventory and, based on Advertising.com's analysis of such performance, Advertising.com reserves the right, in its sole and absolute discretion, to (i) adjust the CPM price for which Publisher shall be paid for delivery on one or more of Publisher Websites or Creative sizes to a different tier; (ii) adjust the tiered CPM pricing; (iii) move Publisher from CPM pricing to payment based on a revenue share basis or vice-versa; and (iv) modify frequency capping and geo-targeting restrictions for one or more of Publisher's approved Websites and Creative sizes; in each case at any time, with or without notice to Publisher.
(e) Any Impressions delivered by a Publisher that are delivered outside of the frequency cap and geo-targeting restrictions established by Advertising.com shall, at Advertising.com's discretion, be either (i) accepted by Advertising.com with payment to Publisher based on a fixed revenue share percentage determined by Advertising.com; or (ii) returned to Publisher via a redirect link provided or approved by Publisher.
6. Termination. These terms and conditions, as and if amended, shall apply to Publisher for as long as Publisher is a member of the Advertising.com Network. Either party may terminate this Agreement or any IPC at any time, for any reason whatsoever, upon written notice to the other party.
AFFILIATE LEAD GENERATION ADDENDUM
The following addendum supplements the Terms and applies only to Creatives hosted by Publisher on certain pre-approved Landing Pages hosted by Publishers, to generate Actions and collect Action data, in each case, on behalf of Advertising.com's advertising clients who use Advertising.com's affiliate lead generation advertising services (the "Affiliate Lead Generation Addendum").
1. Definitions.
"Continuous Engagement" means the date the relevant advertiser entered into an agreement directly with Publisher to place such advertiser's Creatives on inventory owned or managed by Publisher.
"Duplicates" means those Actions already in Advertising.com's advertiser client's database at the time the Action is delivered by Publisher, which shall be considered invalid, and not eligible for payment.
"Landing Page" means the web page on Publisher Website where Publisher collects lead data when generating Actions.
2. Approval Requirements. 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 TO THE PROCESS FOR GENERATING ACTIONS, WITHOUT ADVERTISING.COM'S PRIOR WRITTEN APPROVAL. PUBLISHER UNDERSTANDS AND AGREES THAT SHOULD ADVERTISING.COM DETERMINE IN ITS SOLE DISCRETION THAT PUBLISHER HAS MADE CHANGES TO THE APPROVED LANDING PAGE, THE CREATIVE SET-UP, OR PROCESS FOR GENERATING ACTIONS WITHOUT THE PRIOR WRITTEN APPROVAL OF ADVERTISING.COM, ADVERTISING.COM SHALL NOT PAY PUBLISHER FOR ANY ACTIONS DELIVERED TO ADVERTISING.COM AFTER SUCH UNAPPROVED CHANGES ARE DETERMINED TO HAVE BEEN MADE.
3. 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 the Confidential Information of such advertiser and Advertising.com. Such Confidential Information must be protected by Publisher in a manner consistent with this Agreement.
4. 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 Website), 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 ninety (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 provided by Publisher to Advertising.com immediately upon written request.
5. Delivery of Action data. Publisher shall transmit all Action data to Advertising.com on daily basis or as otherwise agreed to by the parties in writing, in the required data format designated by Advertising.com. Action data may NOT be delivered via unencrypted email. 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.
6. Modification of Action. Publisher agrees that from time to time during the term of the IPC, Advertising.com may increase or decrease (i) the number of Actions that it will accept and compensate Publisher for, and/or (i) the CPA amount that Advertising.com will pay Publisher for Actions. Advertising.com will provide Publisher with at least one (1) business day prior written notice of such changes (the "Notice Period") by email to Publisher at the contact address set forth in the IPC (the "Change Notice"). Publisher agrees that all such changes in the Change Notice will be effective as of the expiration of the Notice Period. If Publisher either rejects the Change Notice or fails to provide written approval of the Change Notice prior to the end of the Notice Period, Advertising.com may, at its sole option, terminate the IPC upon notice to Publisher.
7. Special Terms for PPC Authorized Campaigns. Publisher agrees to strictly comply with any Advertiser campaign restrictions or terms set forth in the campaign details for such Advertiser, including, but not limited to, all restrictions and limitations on search/keyword bidding. Publisher is wholly responsible and liable for the use of any keywords and for all search bidding activity undertaken by Publisher and agrees to indemnify Advertising.com for such use and activities in accordance with the Terms.
8. Termination. These terms and conditions, as and if amended, shall apply to Publisher for as long as Publisher is a member of the Advertising.com Network. Either party may terminate this Agreement or any IPC at any time, for any reason whatsoever, upon written notice to the other party.
Last updated on October 1, 2009.