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Terms and Conditions

Admanage, S.A. Advertising Program Terms

Version 2.0

October, 2010

 

1. INTRODUCTION.

These Admanage, S.A. Advertising Program Terms ("Terms" or “Agreement”) are entered into between you and Admanage, S.A., a Costa Rican corporation, and its subsidiaries and affiliated entities (collectively, "Admanage”), and govern your use of and participation in the Admanage pay-per-click advertising program (collectively, the "Program").

"You" or "Advertiser" means the individual or entity which signs these Terms or any document that references these Terms or that accepts these Terms electronically, and/or any agency acting on such individual’s or entity’s, which shall also be bound by these Terms.

Please read this Agreement carefully. By enrolling as an Advertiser, you agree to be bound by this Agreement, whether you or your principal are acting on your behalf or on behalf of a third party, including an advertiser, and that if you are acting on behalf of a third party, that you have authority to act on behalf of that third party and that they have agreed to be subject to and to abide by the terms of this Agreement. You further agree that any of your agents, representatives, employees, or any person or entity acting on your behalf with respect to the use of the Program will be subject to and will abide by this Agreement.

 

2. AUTHORIZED USES

The Program enables you to select keyword or category targets (“Keywords”) that are matched to an internet user who enters in the same or similar Keywords via search boxes, intext ad bubbles, CPC banners as well as other methods utilized by the Program.  Once your Keyword is matched to an end user, your advertisement or link to your website (the “Ad”) will be displayed, along with other search results where applicable on the screen of an end user’s computer while connected to the Internet or may display your Ad on the website of a third party. You agree that Admanage may display your Ad on: (i) any computer that has installed Admanage’s software application for the display of Ads (the “Admanage Application”); (ii) any computer that has installed a third party software application for the display of ads (the “Partner Application”) and that displays your Ad as a result of an agreement between Admanage and a third party (each, a “Partner”); or (iii) a third party web site maintained by a Partner (“Partner Web sites”). Unless otherwise agreed to in writing by Admanage, Admanage reserves the right to, and in its sole discretion may, at any time reject, modify or remove any Ad. The Partners may also have certain rights allowing them to reject, modify or withdraw Ads placed on the Partner Application or Partner Web sites. No liability of Admanage and/or any Partner shall result from any such decision.

 

3. COMMUNICATIONS SOLELY WITH ADMANAGE

Even if your Ad(s) are placed on a Partner Application or Partner Website, you agree to direct to Admanage, and not to any Partner, any communication regarding your Ad(s) on any Partner Application or Partner Website.

 

4. RESPONSIBILITIES OF PARTIES

You are solely responsible for the selection of all keywords, categories, and other targeting mechanism that are used by the Program to trigger the display of your Ad (collectively, “Targets”), for the content of your Ad, for any items linked to your Ad and for all transactions with, or information provided to, end users through your Ads.

It is your responsibility to manage the campaigns purchased in or through the Program (the “Campaigns”).  If you use the Program to generate sales on any websites, Admanage doesn't guarantee that the Program will generate any sales on such websites. Admanage’s responsibility is limited to sending potential customers, as defined by Advertiser who is solely responsible for choosing the Targets.

With respect to online auction-based advertising, Admanage may (but is not obligated to) send you an email notifying you that you have 72 hours ("Modification Period") to modify keywords and settings as posted. The account (as modified by you, or if not modified, as initially posted) is deemed approved by you in all respects after the Modification Period.  You agree that all placements of your Ads shall conclusively be deemed to have been approved by you. With respect to all other advertising, you must provide Admanage with all relevant Targets by the applicable due date as set forth on Admanage’s website or as otherwise communicated by Admanage. 

Admanage may modify any of the Program at any time without liability.  Admanage also may modify these Terms at any time without liability, and Advertiser’s use of the Program after notice that these Terms have changed constitutes Advertiser’s acceptance of the new Terms. Admanage or Partners may reject or remove any Ad or Target for any or no reason.

If you require the help or involvement of Admanage employees or agents to manage the Campaigns, you will not hold Admanage and/or such employees or agents responsible if the results of the Campaigns are not satisfactory to you. It is your responsibility to verify that the Campaigns are setup properly and in a satisfactory manner in the Program.

You are responsible for understanding the process and workings of the Program.

 

5. PERSONS UNDER 18 YEARS OLD

If you are younger than 18 years old, you are prohibited from registering and using this Program. By using our Program, you represent and warrant to Admanage that you are at least the age of 18 or that you are not a "minor" as this term is defined in the jurisdiction where you are domiciled.

 

6. PROHIBITED USES

Admanage strictly prohibits and Advertiser is hereby prohibited from: (a) using the Program or any device or means to generate fraudulent visits to third party Ad(s), including but not limited to clicking ads for any purpose other than by an individual consumer interested in the content of the specific ad, using robots or other automated query tools and/or computer generated requests, and/or the fraudulent use of other optimization services and/or software; (b) advertising any substances, services, products or materials that are illegal in any state or country where the Ad is displayed; (c) without a direct click on your Ad from the user, opening any other window also known as pop-up, pop-under, exit-pop; (d) displaying any download prompt or Active-X launch prompt or Active-X auto-install without having a direct click on your Ad from the user; (e) redirecting the user to another URL without having a direct click on your Ad from the user; (f) tampering with the size of the window inside which the destination is displayed in a manner that prevents the title bar and window closing controls from being visible; (g) advertising, promoting or offering any product, method or practice that could interfere or adversely affect the Program or Admanage’s software or network; (h) advertising any product of an adult nature is prohibited from being advertised on the Program, including but not limited to images, videos or texts portraying nudity, sexual acts or products of an adult nature like drugs, adult toys or contraceptives; (i) using the Program in any way that violates any policy provided to you in writing or any Code of Conduct adopted by Admanage and posted on its website; (j) engaging in any illegal or fraudulent business practice under the laws of any state or country where the Ad is displayed; (k) playing audio without a click from the user; or (l) intentionally targeting a merchant website with the express purpose of cookie stuffing or affiliate fraud. Violation of the foregoing may result in immediate termination of this Agreement, seizure of any unused funds and may subject you to other legal consequences.

 

7. TERMINATION; CANCELLATION

Admanage may at any time, in its sole discretion and with or without cause, immediately terminate the Program, terminate this Agreement, or cancel any Ad(s) or your use of any Target.  Admanage will make good faith efforts to notify you via email of any such termination or cancellation. You may cancel any Ads and/or terminate this Agreement online with or without cause at any time through your account if online functionality is available or, if not available, with prior written notice to Admanage. Upon termination for any reason, you shall remain liable for any amount due for Ads already delivered.

 

8. DISCLAIMER OF WARRANTIES

THE PROGRAM, THE ADMANAGE APPLICATION, THE PARTNER APPLICATION, THE PARTNER WEBSITES AND OTHER SERVICES AND PRODUCTS FURNISHED BY ADMANAGE IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARE PROVIDED TO YOU “AS IS” AND, TO THE FULLEST EXTENT PERMITTED BY LAW, ADMANAGE EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. ADMANAGE DOES NOT WARRANT THAT THE PROGRAM WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE PROGRAM WILL BE ERROR-FREE OR UNINTERRUPTED. ADMANAGE SHALL NOT BE LIABLE TO YOU FOR ANY INOPERABILITY OF THE PROGRAM OR FOR ANY LOSS OF INFORMATION OR OTHER INJURY, DAMAGE OR DISRUPTION OF ANY KIND. ANY USE BY YOU OF THE PROGRAM IS AT YOUR OWN RISK. ADMANAGE MAKES NO GUARANTEE REGARDING THE LEVELS OF VISITS OR CLICKS FOR ANY AD ON THE ADMANAGE APPLICATION, PARTNER APPLICATION OR PARTNER WEBSITES. ADMANAGE MAY OFFER THE SAME TARGET TO MORE THAN ONE ADVERTISER. YOU MAY NOT RECEIVE ANY VISITS OR CLICKS FOR YOUR AD(S) IF FOR A GIVEN TARGET THERE ARE MORE ADVERTISERS THAN AVAILABLE DISPLAY POSITIONS. ADMANAGE HAS NO CONTROL OVER THE INSTALLATION, OPERATION OR CONTENT OF THE PARTNER APPLICATION AND PARTNER WEB SITES. BY MAKING A DECISION TO PLACE YOUR ADS ON A PARTNER APPLICATION OR PARTNER WEB SITE, YOU ACKNOWLEDGE THAT YOU ARE DOING SO AT YOUR SOLE RISK.

 

9. LIMITATIONS OF LIABILITY

ANY LIABILITY OF ADMANAGE, INCLUDING, WITHOUT LIMITATION, ANY LIABILITY FOR DAMAGES CAUSED OR ALLEGEDLY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, FAILURE OF DELIVERY OF MERCHANDISE, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR UNLAWFUL USE OF RECORDS, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION, WILL BE STRICTLY LIMITED TO $100.00. IN NO EVENT WILL ADMANAGE OR ANY SHAREHOLDER, OFFICER, DIRECTOR, EMPLOYEE, AGENT, AFFILIATE, SUCCESSOR OR ASSIGN OR ADMANAGE BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT, THE USE OR INABILITY TO USE THE PROGRAM, OR FOR ANY BREACH OF WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. YOU AGREE THAT YOU WILL NOT HOLD ADMANAGE RESPONSIBLE FOR THE SELECTION OR RETENTION OF, OR ANY ACTS, ERRORS, OR OMISSIONS BY, ANY THIRD PARTY IN CONNECTION WITH THE PROGRAM AND/OR PARTNER WEB SITES, INCLUDING, WITHOUT LIMITATION, THOSE WITH WHOM ADMANAGE CONTRACTS TO OPERATE VARIOUS PORTIONS OF THE PROGRAM AND THOSE TO WHOM ADMANAGE PROVIDES LINKS TO FOR CONTENT, ADVERTISING, OR ANY OTHER TYPE OF DATA OR INFORMATION.

 

10. PAYMENT

You agree to pay all applicable charges to your account (including all applicable taxes, if any) in United States dollars, in accordance with the billing terms in effect at the time charges become payable, as posted online or as otherwise communicated by Admanage. Charges shall be calculated solely based on records maintained by Admanage, and no other measurements or statistics of any kind shall be accepted by Admanage or have any effect under this Agreement. You also agree that Admanage may change its pricing at any time at its sole discretion. Your right to access and use the Program is subject to any limits established by Admanage. Admanage reserves the right to either suspend or terminate your account if: (a) you fail to make payment on time; (b) you are pre-paying by wire, but fail to replenish funds to your account after your account reaches a zero balance; or (c) payment cannot be charged to your credit/charge/debit card, for whatever reason, or if there is a chargeback for any reason, or if your financial institution rejects our charge to your credit/charge/debit card, or if you exceed your monthly maximum payment. Suspension or termination includes, but is not limited to, removal of your Ad(s) from the Program.  In the event you are past due in payment of any invoice, all amounts owing as of that date will become immediately due and payable. Payment is late for any balance not received according to the payment terms indicated on the enrollment form or otherwise on the Admanage website. A late charge on all outstanding balances will be assessed at the lower of 1.5% or the maximum allowed by law for each month in which the balance remains unpaid. You must submit any claims or disputes you may have with respect to any charge to your account in writing to Admanage within 30 days of such charge; otherwise such claim or dispute will be waived and such charge will be final and not subject to challenge. In the event of any failure by you to make payment, you will be responsible for all reasonable expenses (including attorneys' fees and costs) incurred by Admanage in collecting such amounts.

 

11. REPRESENTATIONS AND WARRANTIES

You represent and warrant that: (i) all of the information you provide to Admanage to enroll in and/or use the Program is accurate and complete, and that you will promptly update such information when it is no longer current; (ii) you hold all rights to permit Admanage and any Partner(s) to use, reproduce, display, transmit and distribute ("Use") your Ad(s); (iii) Admanage’s and any Partner’s Use of your Ads, your selected Target(s), and any website(s) linked to, and products or services to which users are directed, will not, in any state or country where the Ad is displayed (a) violate any law, rule or regulation of any governmental entity or regulatory authority, (b) infringe upon the intellectual property or proprietary rights of any third party, including but not limited to trademarks, copyrights or rights of publicity, (c) encourage conduct that would violate any criminal or civil law, or (d) contain content that is false, misleading, defamatory, libelous, slanderous or threatening; (e) contain any sort of virus, worm, trojan horse, malware, adware or monitoring device that is not explicitly (and obviously) consented to by the end user; and (f) you have the authority to enter into and to perform under this Agreement, and that by doing either or both you are not (i) breaching any obligation, contractual or otherwise, that you have to any third party, or (ii) violating any applicable law or regulation.

 

12. INDEMNIFICATION

You agree to indemnify, defend and hold Admanage, all relevant Partner(s), and their licensors, licensees, affiliated companies, consultants, contractors, agents, attorneys and employees harmless from and against any and all liability, loss, damages, claims or causes of action, including internal and external legal fees and expenses, arising out of, related to or which may arise from your use of the Program, your Ads, your selection and use of Targets, and/or your breach of any term of this Agreement.

 

13. INFORMATION RIGHTS, CONFIDENTIALITY AND PRIVACY

You shall have the right to use the reports provided or made available to you by Admanage regarding your Ads. Notwithstanding the foregoing, all data collected in connection with the Program shall be owned by Admanage.

"Confidential Information" means any information disclosed to you by Admanage, either directly or indirectly, advertently or inadvertently, in writing, orally, or by inspection of tangible objects, other than information that you can establish (i) was publicly known and made generally available in the public domain prior to the time of disclosure to you by Admanage; (ii) becomes publicly known and made generally available after disclosure to you by Admanage other than through your action or inaction; or (iii) is in your possession, without confidentiality restrictions, at the time of disclosure by Admanage as shown by your files and records immediately prior to the time of disclosure. You will not at any time (a) disclose, sell, license, transfer, or otherwise make available to any person or entity any Confidential Information, (b) use any Confidential Information, or (c) reproduce or otherwise copy any Confidential Information, except as necessary in connection with the purpose for which such Confidential Information is disclosed to you or as required by applicable law. You agree to take all reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information. All Confidential Information will at all times remain Admanage personal property and all documents, electronic media, and other tangible items containing or relating to any Confidential Information will be delivered to Admanage immediately upon Admanage's request.

Admanage Privacy Policy can be found at: http://intext.net/intext-privacy-policy-pay-per-click

14. PRESS RELEASES

The Advertiser shall not issue any press releases or other public statements concerning the existence, subject matter, terms or performance of these Terms without Admanage’s express prior written approval. 

 

15. MISCELLANEOUS TERMS AND CONDITIONS

This Agreement shall be construed as if both parties jointly wrote it. This Agreement shall be governed by the laws of the State of California, without reference to any conflict of laws principles. ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PROGRAM SHALL BE LITIGATED EXCLUSIVELY IN THE FEDERAL OR STATE COURT OF ORANGE COUNTY IN THE STATE OF CALIFORNIA AND ADMANAGE AND ADVERTISER CONSENT TO JURISDICTION IN THOSE COURTS. This Agreement constitutes the entire agreement between the parties with respect to the subject matter contained herein and supersedes all previous and contemporaneous agreements, proposals, and communications, written or oral, between you and Admanage. Only a written instrument executed by the party waiving compliance with this Agreement may waive the terms or covenants of this Agreement. YOU AGREE THAT ANY TERMS THAT APPLY TO USERS OF YOUR WEBSITES OR ADVERTISEMENTS, WILL NOT SUPERSEDE, ALTER, OR AFFECT THESE TERMS. If any provision of this Agreement is held or made invalid or unenforceable for any reason, such invalidity will not affect the remainder of this Agreement, and the invalid or unenforceable provisions will be replaced by a mutually acceptable provision that, being valid, legal, and enforceable, comes closest to the original intentions of the parties hereto and has like economic effect. This Agreement is not intended to benefit, nor will it be deemed to give rise to, any rights in any third party, except as specifically set forth in this Agreement. Admanage may change this Agreement at any time upon notice published on the Admanage website or by e-mail notification to you. Any use of the Program or any of Admanage's websites after such notice will be deemed to be continued acceptance of this Agreement, including its amendments and modifications. Admanage reserves the right to discontinue offering the Program at any time. Admanage will have no liability hereunder by reason of any failure or delay in the performance of its obligations on account of strikes, shortages, riots, acts of terrorism, insurrection, fires, flood, storm, explosions, earthquakes, internet outages, computer virus, acts of god, war, governmental action, or any other cause that is beyond Admanage's reasonable control. Advertiser may not assign any of Advertiser’s rights hereunder and any such attempt is void. Advertiser and Admanage and Admanage and Partners are not legal partners or agents, but are independent contractors. In the event that these Terms or a Program expire or is terminated, Admanage shall not be obligated to return any materials to Advertiser. Notice to Advertiser may be effected by sending an email to the email address specified in Advertiser’s account, or by posting a message to Advertiser’s account interface, and is deemed received when sent (for email) or no more than 3 days after having been posted (for messages in Advertiser’s account interface). Sections 3 and 7-15, inclusive, will survive any termination of this Agreement.

 

 


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