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Terms and Conditions

Version 1.0
August 16, 2010

Affiliates Terms & Conditions

Welcome to InText.net's Affiliate Program (the "Affiliate Program"). Before you can become a participant in the Affiliate Program, you must first read and agree to all of the Affiliate Terms & Conditions ("Affiliate Terms") below. This is a legally binding document, so please read it CAREFULLY.

These Affiliate Terms are made between Admanage SA (the "Company," "We," "Our" or "Us") and you, to use Our services (the "Applicant", "You," "Your" or "Affiliate"). You agree to be bound by these Affiliate Terms, as they may be amended from time to time. We encourage you to review these Affiliate Terms often for updates and stay current on any changes made. In the event any changes are made to these Affiliate Terms, We will change the Version and date information located at the top of this document.

Participation in Our Affiliate Program is subject to all the terms, conditions, limitations, obligations and waivers below. These Affiliate Terms contain the complete terms and conditions which apply to Your participation in the Affiliate Program. You acknowledge and agree that, by participating in the Affiliate Program, that You will abide by and be bound by these Affiliate Terms.

THIS IS A LEGAL AGREEMENT BETWEEN YOU AND US. BY PARTICIPATING IN THE AFFILIATE PROGRAM, YOU AFFIRM YOU HAVE READ AND UNDERSTAND THE TERMS AND CONDITIONS SET FORTH HEREIN AND ARE AFFIRMATIVELY INDICATING YOUR ACCEPTANCE OF THESE AFFILIATE TERMS. YOU CANNOT BECOME A PARTICIPANT OF THE AFFILIATE PROGRAM UNLESS YOU HAVE ACCEPTED EACH AND EVERY TERM HEREIN.

1.DEFINITIONS
  1. A "Click" occurs when a bona fide Internet user (which excludes a robot, spider, software, scraper or other mechanical, artificial or fraudulent means, or a person who is not seeking to use the Partner Network for a legitimate web search, e.g., has been paid or otherwise motivated to click, as solely determined in Our sole and absolute discretion by Our click filtering and tracking systems) clicks on a Listing and accesses the destination site.
  2. "Confidential Information" means information about the disclosing party’s (or its suppliers’) business, products, technologies, strategies, advertisers, financial information, operations or activities that is proprietary and confidential, including without limitation all business, financial, technical and other information disclosed by the disclosing party. Our Confidential Information includes (without limitation) the CPC bids included in Our Paid Listings feeds. Confidential Information will not include information that the receiving party can establish (i) is in or enters the public domain without breach of these Affiliate Terms, (ii) the receiving party lawfully receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation or (iii) the receiving party knew prior to receiving such information from the disclosing party.
  3. "Inactive Links" shall be defined as any link provide by the Service which, when clicked, does not result in the user receiving a web page within 60 seconds at least 3 out of 5 times in any 1 week period.
  4. "Listing" means a link to a website that includes the display URL, a title, text that describes the site to which the listing links or encourages the user to visit the site, and may include a tracking URL.
  5. "Quality Criteria" means Our commercially reasonable efforts to ensure that the Paid Listings returned by the Service shall not contain more than 3% Inactive Links out of any random sample of 10,000+ queries.
  6. "Paid Listings" means Our product that returns results containing paid Listings. The amount that an advertiser pays to Us influences (among other factors) the position in which the advertiser’s listing appears in Our Paid Listings.
  7. "Partner Implementation Guide" means the directions We provide to You after You agree to the Affiliate Terms to assist in the process of implementing the technical aspects of the Service. The parties will use commercially reasonable efforts to abide by the procedures and steps set forth in the guide.
  8. "Service" means the feed of Paid Listings as defined in these Affiliate Terms that We provide to You.
  9. "Service Levels Below" means the level of service to be supplied by Us in connection with Our Paid Listings.
  10. Service Integration Technical Assistance. During the term of this agreement, We will provide a technical account manager during normal business hours (9am – 6pm Pacific Time) to assist in the effective integration of the Service onto Your site. In no event will such support exceed five (5) hours per month, and all such support will be provided during business hours. The parties agree that the Service is provided in a standard format and is well documented. We will not provide technical assistance relating to on-site server configuration or programming.
  11. Service Uptime. The Service will be available 24 hours/day, 7 days/week. Scheduled downtime will be communicated to partners with 5 business days notice. The Service is guaranteed to be up 99.5% of the time as measured weekly and 99.8% of the time as measured monthly, excluding scheduled downtime. Should We determine that a reconfiguration of the Service is required, such as major software version changes, changes in hosting facilities or other network reconfiguration, We will provide You with 30-day notice of such change, and will work in good faith to minimize any Service outages.
  12. "Your Network" means web sites which are owned or operated by You or are contractually part of Your syndication network.
2. ENROLLMENT. In order to enroll in the Affiliate Program You must:
  • 2.1 Submit a completed application through Our website.
  • 2.2 Be over the age of eighteen (18) years, or over the age of majority if You reside and/or conduct business in states, provinces or countries where the age of majority is greater than eighteen (18) years. You may not participate in the Affiliate Program if You are not of the age of majority in the state, province, territory or country where You reside and/or conduct business.
  • 2.3 You will be notified of Your acceptance or rejection via email. We may reject Your application or terminate Your account at any time if, in Our sole and absolute discretion, We determine Your website(s) are unsuitable for the Affiliate Program for any reason. Our reasons may include, but are not limited to, a belief Your website(s) incorporate(s) images or content which is unlawful, defamatory, obscene, harassing or otherwise objectionable. We may also reject Your application or terminate Your account at any time if, in Our sole and absolute discretion, We believe Your website(s) facilitate(s) illegal activity, promote(s) violence or promote(s) or assist(s) others in promoting copyright infringement, or if You provide incomplete and/or inaccurate information on Your submitted application.
  • 2.4 As a member of the Affiliate Program, You understand that You are an independent contractor and not an employee, agent, legal representative, or franchisee of the Company. You further agree and understand that you have no authority to incur any debt, expense or obligation on behalf of, for, or in the name of Company.
3.LICENSE.
  • 3.1 License. Subject to the terms, limitations and conditions herein, We hereby grant You a non-exclusive license during the term of your participation with the Affiliate Program to publicly display, and allow third parties who operate sites on Your Network to publicly display Paid Listings in electronic form on Your Network. You and third parties who operate sites on Your Network may not display any Paid Listings via any of the following distribution sources: e-mail, pop-ups, pop-unders or adware without Our prior written, signed consent.
  • 3.2 Limitations on License. The license granted above is conditioned Your sites and Your Network’s sites, observance of the following restrictions: (i) except as expressly permitted herein, You will not display, use, reproduce, cache, store, distribute, make derivative works of, modify, sell, resell, rent, license, sublicense, transfer, assign or redistribute in any way Paid Listings; (ii) You will not modify, add to, edit or delete the URLs, titles or reviews contained within any Paid Listings without Our prior written approval; (iii) You will not display, sublicense or syndicate Paid Listings on or to any third party or web site outside of Your Network unless You first obtain Our written consent; (iv) You will use the tracking URLs associated with each individual Listing provided by Us, if any, for all Paid Listings included on Your Network (though You may use the display URLs for purposes of displaying the Listing); (v) You will not display any Paid Listings on any adult-oriented web sites without Our prior written approval; (vi) You will not display any Paid Listings on any obscene or illegal web sites, or act in any manner that violates any applicable laws or regulations or the rights of any third party; and (vii) You will not display any Paid Listings, or allow any third parties to display any Paid Listings, via any form of adware, spyware, e-mail or method that violates applicable laws.
  • 3.3 Zero Tolerance Policy. WE MAINTAIN A ZERO TOLERANCE POLICY AND WILL TERMINATE YOUR ACCOUNT IMMEDIATELY IF YOUR WEBSITE IS FOUND TO HAVE ANY OF THE FOLLOWING: INDECENT OR PORNOGRAPHIC MATERIAL, SOFTWARE PIRATING OR ANY SITE THAT VIOLATES THIRD PARTY INTELLECTUAL PROPERTY RIGHTS, MP3 SITES THAT DO NOT HAVE THE LEGAL RIGHT TO DISTRIBUTE MP3 FILES, HACKING/PHREAKING OR ANY OTHER SITE INVADING THE RIGHTS OF COMPUTER USERS, ANY MATERIAL WHICH IS THREATENING, ABUSIVE, HATEFUL, DEFAMATORY, LIBELOUS, SLANDEROUS, OR INJURIOUS TO THE REPUTATION OF ANY INDIVIDUAL OR ENTITY, INCENTIVE BASED WEBSITES, SPAMMING, LOADING OF RESULTS IN ANY POP UP WINDOWS OR CONSOLES, ANY ILLEGAL ACTIVITY, OR ANY ACTIVITY THAT WE FEEL (IN OUR SOLE AND ABSOLUTE DISCRETION) IS UNFIT FOR OUR ADVERTISERS
  • 3.4 Display of Ads via Cookies or Downloadable Applications. The license granted above is conditioned on Your site and sites in Your Network’s observance of the following: a) if You display or allows a third party to display Paid Listings via any "cookie" or application that is downloaded to a user’s computer or browser, You represent and warrant that such cookie or application shall: (i) not gather any personally identifiable information (such as an individual’s name, telephone number, password, account information, e-mail address and/or street address) or financial information of the end user; and (ii) not gather any information about the web pages accessed by the computer on which it is installed; b) if You display or allow a third party to display Paid Listings via any application that is downloaded to a user’s computer or browser, You represent and warrant that such application shall: (a) only be installed after clear and conspicuous notice to the end user; (b) only be installed after the end user’s express and informed consent to installation; (c) allow for uninstallation that can be performed without undue effort or knowledge by the end user; (d) allow for successful removal of such client-side application using the "Add/Remove Programs" functionality of Microsoft Windows (or similar on other platforms); (e) not re-install itself without the end user’s express consent prior to each such re-installation; (f) not install or allow the installation of any other programs not clearly and conspicuously disclosed to the end user, (g) clearly display Your privacy policy (or a link or other access to it); and (h) comply with all applicable laws and regulations. You agree to provide Us with a copy of, and a license to use, any and all downloadable applications and all updates and upgrades thereto that You use or allow third parties to use, to display Paid Listings.
  • 3.5 Display of Ads on Partner Network. The license granted herein requires that, in the event Your site and Your Network’s site(s) allows any third party to display Paid Listings, You shall: (1) enter into a legally binding contract with such third party that is no less restrictive than the terms, conditions, limitations and restrictions applicable to You under these Affiliate Terms; (2) monitor the activities of such third party on a regular basis to ensure compliance with the requirements herein; and (3) immediately terminate such third party’s distribution of Paid Listings upon a determination that such third party is in material violation of any of the terms and conditions of such distribution agreement or upon request by Us to do so. 3.6 Query Source Identification. For every ad call or other request for listings made to Our program, You shall clearly identify to Us the query source by providing the originating IP address of the user (not the server making the request), the User Agent of the user’s browser and the HTTP referrer that indicates where the listings are being displayed.
4.PAYMENT TERMS
  • 4.1 Cost Per Click. Provided you are in compliance with these Affiliate Terms, for any given calendar month, We will pay You a share of revenues from Our invoices or charges for all qualified Clicks on listings advertisements, as recorded by Our, or Our customer’s (if applicable), click tracking systems related to Your efforts. For each Click, Your share of Our revenue will be sixty percent (60%) percent of the cost-per-click ("CPC") bid for the corresponding keyword(s), less any deduction for credit card fraud, advertising complaints, fraudulent traffic or other similar sort of deductions. We will determine the CPC bid and include it in the Paid Listings feed sent in response to such request. We will have sole and absolute discretion to decide the CPC bid for each Listing, and such CPC bid may change frequently. You may use the CPC bid included in the Paid Listings feed from Us solely for the purpose of ranking the Paid Listings and gauging payments from Us, but the parties agree that all CPC bid amounts submitted by Us are confidential, trade secret information for internal use only, and shall not be posted on Your web pages or disclosed to any third parties. We shall have no obligation to pay for clicks if You make any material misrepresentations in Your Application or if You violate the Affiliate Terms set forth herein.
  • 4.2 Reporting and Payment. We will make Our Statistics Reports available to You for preliminary daily reporting of clicks, and You acknowledge and agree that: (i) such reporting may not represent the number of qualified Clicks for which We will pay You and (ii) You will control access to and maintain the confidentiality of Your password for accessing the Statistics Reports.
  • 4.3 Payment Terms. Our payment terms are "Net 45". We currently issue Commission payments "Net 45" provided you have earned a minimum of $500 for wire payout or $1000 for epassporte payout for the proceeding period. If You have not earned minimum of $500 for wire payout or $1000 for epassporte payout Commissions for the prior period, they will be rolled over until at least minimum of $500 for wire payout or $1000 for epassporte payout is reached, at which time you will receive payment. After the close of any calendar month, We will make payment to You within forty five (45) days, provided, that You acknowledge and agree to the Query Source Identification as described in section 3.5, above. For every request, without such information Our ability to determine which clicks and ads are qualified or billable is impaired and thus We may not pay You for the clicks and ads you might otherwise be entitled to. You shall also notify Us of any changes, inaccuracies, or incompleteness of any statement You make on Your application. We reserve the right to deduct from payments made pursuant to Section 4.1, or otherwise recoup any amounts paid to You in prior months for non-qualified Clicks.
  • 4.4 Audit. You agree that, given written notice of fifteen (15) business days, We (Ourselves or by parties duly authorized by Us), shall have the right to audit Your records to confirm compliance with these Affiliate Terms. Any such audit shall be conducted during normal business hours and shall not unduly interfere with Your ability to conduct business. You agree that, in the event that We demonstrate that You have provided us with discrepancies equal to or greater than, five percent (5%), that You shall pay all costs associated with Our audit.
  • 4.5 Non-Qualified Clicks. We shall have no obligation to pay for clicks which are non-qualified clicks as determined by Our click filtering and tracking systems. Non-qualified clicks may come as a result of but are not limited to clicks: (i) generated via automated crawlers, robots or click generating scripts; (ii) that an advertiser receives and rejects; (iii) that come as a result of auto-spawning of browsers, automated redirects, and clicks that are required for users to navigate on Your Network; (iv) that are from users in countries we do not accept traffic from; (v) that are on expired, cached or over-budget ads; or (vi) that come as a result of any incentive such as cash, credits or loyalty points. We reserve the right to require You to provide server log files that include, but are not limited to, the daily number of clicks delivered to Us. In the event that We determine in Our sole and absolute discretion that You or any third party site in Your Network has delivered non-qualified clicks, or traffic that violates any material term of this Agreement, We may, at Our option: (1) immediately terminate this Agreement upon written notice to You, or (2) require You to immediately cease displaying, and allowing third party sites in the Your Network to display, Paid Listings via any particular means, method, product, or third party distributor, and/or (3) not pay You for the non-qualified clicks.
5. YOUR OBLIGATIONS
  • 5.1 Implementation of Paid Listings. Within ten (10) days after signing up for Our services, You will begin querying Our servers for Paid Listings and will implement and display Paid Listings provided by Us.
  • 5.2 Attribution; Look and Feel. You may provide Us attribution on pages displaying Paid Listings. The size and location aspects of such attribution shall be at the parties' mutual agreement. Other than as set forth herein, You shall control the look and feel of Your search service.
6. OUR OBLIGATIONS
  • We will use commercially reasonable efforts to provide the Service Levels and Technical Support commonly available to similar sites that provide the services set forth herein.
7. PUBLICITY
  • We may issue a press release to announce the relationship contemplated by this Agreement without Your prior written consent. You will not make any public statement, press release or other announcement relating to the terms or existence of this Agreement without Our prior written approval, such approval not to be unreasonably withheld, conditioned or delayed, provided that either party may make such disclosures as may be, in its reasonable opinion of counsel, advisable in order to comply with a subpoena or other legal process or with applicable laws, regulations or securities exchange rules.
8. INTELLECTUAL PROPERTY OWNERSHIP
  • 8.1 Our Proprietary Rights. We will retain all right, title and interest in and to the Paid Listings, the related databases, all data generated by Our click tracking system and other performance measurement applications, and all associated intellectual property and proprietary rights worldwide (including, but not limited to, ownership of all copyrights, trademarks, patents, derivative works, modifications, lists of advertisers and information, algorithms, taxonomies, trade secrets and other intellectual property rights therein).
  • 8.2 Your Proprietary Rights. Other than the Paid Listings, You will retain all right, title, and interest in and to Your Network (including, but not limited to, ownership of all copyrights, trademarks, patents, derivative works, modifications, lists of advertisers, algorithms, taxonomies, trade secrets and other intellectual property rights therein).
9. TERM AND TERMINATION
  • 9.1 Term. The term of this Agreement will begin on the date after you have completed Our application and have received Our approval to become and Affiliate and will continue until terminated by written notice to the other.
  • 9.2 Termination. We may suspend performance and/or terminate this Agreement at any time without cause in its sole discretion upon ten (10) days’ prior notice.
  • 9.3 Effect of Termination. Termination of this Agreement by either party will not act as a waiver of any breach of this Agreement and will not act as a release of either party hereto from any accrued liability (including payments as set forth in the following section) or liability for breach of such party’s obligations under these Affiliate Terms. Within sixty (60) days following end of the calendar month in which notice of termination was provided, each party will pay to the other party all sums, if any, due and owing as of the date of expiration or termination, net of any amounts due from the other party as of such date. Upon the expiration or termination of this Agreement for whatever reason, each party shall immediately cease to use the other party’s trademarks, proprietary information, Paid Listings, intellectual property (including derivative works or modifications thereof) and any other Confidential Information in any manner whatsoever, and shall destroy or return (at the option of the other party), any such property, or materials representing the same to the other party, and provide the other party with an officer’s certificate attesting to such return/destruction. For the avoidance of doubt, upon termination or expiration of this Agreement, the license granted hereunder shall terminate and You and Your agents shall immediately cease all use of the Paid Listings.
  • 9.4 Survival. The provisions of sections 1 and 5-12 (inclusive) will survive any termination or expiration of this Agreement for a period of three years.
10. CONFIDENTIALITY
  • 10.1 Use of Confidential Information. Each party agrees that: (i) neither will use nor disclose to any third party or use any Confidential Information disclosed to it by the other except as expressly permitted herein or as required by a court of law or otherwise compelled to be disclosed pursuant to the legal process or existing laws or regulations, and (ii) each will take all reasonable measures to maintain the confidentiality of all Confidential Information of the other party in its possession or control, which will in no event be less than the measures it uses to maintain the confidentiality of its own information of similar importance.
  • 10.2 Non-Circumvention Agreement. We have proprietary relationships with advertising clients on whose behalf We may purchase media from Customer. During the term of this agreement and for a period of 120 days after cancellation of campaign, You agree not to solicit, induce, recruit or encourage any advertiser that You know, or that You have reason to know, is Our client, or that has utilized Our services during the preceding twelve (12)-month period. The foregoing remedy is a material, bargained for basis of this agreement and has been taken into account in each party's decision to enter into this Agreement.
11. WARRANTY AND INDEMNITY.
  • 11.1 Warranties. We warrant that we own, or have obtained the right to distribute and make available as specified in these Affiliate Terms, the Paid Listings provided to You in connection with this Agreement. Except as specifically provided herein, We do not guarantee nor make any representations or warranties whatsoever (i) with respect to the completeness of any listings or links or information accessed through such links or (ii) with respect to the content of the web sites accessed through the listings or links provided hereunder. WE DO NOT WARRANT, REPRESENT NOR GUARANTEE THAT THE USE OF ITS LISTINGS OR LINKS, OR ANY OTHER SERVICES PROVIDED IN CONNECTION WITH OR IN ADDITION TO THE FOREGOING WILL BE UNINTERRUPTED, UNDISRUPTED OR ERROR-FREE. You represent and warrant that (i) Your display of Paid Listings hereunder (including its allowing third parties to do so) does not and will not violate any term or condition of this Agreement and (ii) the information provided in Your application is accurate and complete.
  • 11.2 Indemnification. You will indemnify, defend and hold Us, including Our officers, directors and employees, from any and all third party claims, liability, damages, expenses and/or costs (including, but not limited to, attorneys fees) arising from Your breach of any warranty, representation, obligation or covenant in these Affiliate Terms (whether by negligence or intentional conduct). All such amounts will be reimbursed to Us as incurred, within thirty (30) days of submission of reasonable supporting documentation or invoices to the indemnifying party. Your obligation to indemnify is conditioned upon Our providing prompt notification of any and all such claims, unless the failure to notify does not materially and adversely affect the defense. We will reasonably cooperate with You in the defense and/or settlement of any indemnified claims.
  • 11.3 Disclaimer. Except as specified in this agreement, neither party makes any warranty in connection with the subject matter of this agreement and each party hereby disclaims any and all implied warranties, including all implied warranties of merchantability and fitness for a particular purpose regarding such subject matter.
12. LIMITATION OF LIABILITY.
  • Other than as a result of breach of section 3 or pursuant to the indemnification provisions hereof, in no event will either party be liable to the other for any special, incidental or consequential damages, whether based on breach of contract, tort (including negligence) or otherwise, whether or not that party has been advised of the possibility of such damage.
13. GENERAL.
  • 13.1 Assignment/Change of Control. Neither party may assign these Affiliate Terms, in whole or in part, without the other party's written consent (which will not be unreasonably withheld). In the event of a change of control, merger, reorganization or sale of all, or substantially all, of one party's assets to a third party, the other party may terminate the agreement upon 10 days’ prior written notice at any time after the closing of such transaction. For the purposes hereof, a "change of control" shall mean a transaction in which the shareholders of a party prior to the closing do not retain majority ownership of the party after the closing of such transaction.
  • 13.2 Governing Law/Venue. These Affiliate Terms are governed by and construed in accordance with the laws of United Kingdom, notwithstanding the actual state or country of residence or incorporation of the parties. The parties consent to the exclusive jurisdiction of United Kingdom for all actions arising out of or related to these Affiliate Terms.
  • 13.3 Pre-Litigation Negotiations. The parties will use commercially reasonable efforts to resolve any controversy or dispute arising out of or relating to these Affiliate Terms promptly by negotiations prior to the commencement of formal legal proceedings. Consequently, the parties agree to use the following alternative procedure prior to the commencement of any formal legal proceedings. At the written request of a party, each party shall appoint a knowledgeable, responsible representative to meet (either in person or by telephone) and negotiate in good faith to resolve any dispute arising under these Affiliate Terms. The parties intend for these negotiations to be conducted by non-lawyer business representatives. The discussions will be left to the discretion of the representatives. Upon agreement, the representatives may utilize other alternative dispute resolution procedures such as mediation to assist in the negotiations. Discussions and correspondence among the representatives for purposes of these negotiations will be treated as confidential information developed for purposes of settlement and therefore be deemed inadmissible in any litigation that may ensue pursuant to California Evidence Code section 1152 et. seq. and Federal Rules of Evidence, Rule 403. In the event that one Party does not respond to the other Party’s request for such negotiations within five (5) business days of such request, then the requesting Party may commence formal legal proceedings pursuant to section 13.4 below. Notwithstanding anything to the contrary, with respect to any dispute giving rise to a claim for injunctive relief, the provisions of this Section will apply only upon the written request of the party possessing such claim, and such Party may elect to commence legal proceedings regarding such claim at any time (and nothing contained in these Affiliate Terms will be construed to require such party to provide any notice thereof).
  • 13.4 Arbitration. The parties hereby agree to waive their right to a jury trial and agree to submit any dispute(s) that may arise in relation to these Affiliate Terms to binding arbitration before a single arbitrator. The arbitration shall be conducted in accordance with California Code of Civil Procedure section 1280 et. seq.
  • 13.5 Notices. Any notice or other communication to be given hereunder will be in writing and will be (as elected by the party giving such notice): (i) personally delivered; (ii) transmitted by postage prepaid registered or certified mail, return receipt requested; (iii) deposited prepaid with a nationally recognized overnight courier service; or (iv) sent by facsimile. Unless otherwise provided herein, all notices will be deemed to have been duly given on: (a) the date of receipt (or if delivery is refused, the date of such refusal) if delivered personally or by courier; (b) three (3) business days after the date of posting if transmitted by mail; or (c) if transmitted by facsimile, the date a confirmation of transmission is received. Either party may change its address for purposes hereof on not less than three (3) business days prior notice to the other party. Notices hereunder will be directed to, unless otherwise instructed by the receiving party: If to 11 CHURCH ROAD, GREAT BOOKHAM, SURREY, KT23 3PB, United Kingdom.
  • 13.6 Force Majeure. Any delay in or failure of performance by either party under these Affiliate Terms will not be considered a breach of this agreement and will be excused to the extent caused by any occurrence beyond the reasonable control of such party including, but not limited to, acts of God, power outages and governmental restrictions.
  • 13.7 Severability. In the event that any of the provisions of these Affiliate Terms are held by to be unenforceable by a court or arbitrator, the remaining portions of the agreement will remain in full force and effect.
  • 13.8 Entire Agreement. These Affiliate Terms are the complete and exclusive agreement between the parties with respect to the subject matter hereof, superseding and terminating any prior agreements and communications (both written and oral) regarding such subject matter. These Affiliate Terms may only be modified, or any rights under it waived, by a written document executed by both parties.
  • 13.9 Independent Contractors. The parties are independent contractors and not partners, joint venturers or co-venturers. Neither party shall be deemed to be an employee, agent, or legal representative of the other party hereto for any purpose and neither party hereto shall have any right, power or authority to create any obligation or responsibility on behalf of the other party hereto nor shall this be deemed an exclusive or fiduciary relationship.
14. IMPLEMENTATION OF PAID LISTINGS.
  • 14.1. Display of Paid Listings. You will make or refer search queries, ad requests based on site pages, and other ad calls or requests for listings to Our servers via a live data feed. If any Paid Listings are returned by Our servers in response to such requests, such Paid Listings will be displayed on Your Network. You will not display or allow any third party in Your Network to display any CPC or price-related data that would allow users to determine the price paid by advertisers in connection with Paid Listings. You will cooperate with Us to allow Us to track Clicks on Paid Listings displayed on Your Networks, including the use of redirects, tracking URLs or other methods as reasonably requested by Us. Other than as set forth herein, You shall be solely and exclusively responsible for the design, development, operation and maintenance of Your Network and for all advertising, sponsorship or other use of the media contained therein. You will implement the Paid Listings within ten (10) days of joining our service, such implementation to be verified by Us recording at least one Click attributable to Your Network.
  • 14.2. Display Ordering; De-duplicating. You represent that You sort, rank and deliver Paid Listings for Your Network. In the event that You decide to change the method by which You determine the ranking of Your Paid Listings, You will provide Us thirty (30) days prior written notice of such change. You further represents that, to the extent You display Your own or other third party listings on Your Network in addition to the Paid Listings, if any such listing is duplicative with any Paid Listing, You will decide whether to show such listing or the Paid Listing on the basis of which one carries the higher CPC.
  • 14.3. Position in Paid Listings. If You sort, rank and deliver listings on Your Network based on CPC amounts, a) You must deliver Our Paid Listings above or in a more favorable position than (i) any other listing with the same CPC and (ii) the listing with the next lowest CPC; and b) You will in no way manipulate the Paid Listings to deliver Our Paid Listings in a position below or less favorable than listings with CPCs lower than the Paid Listings.
  • 14.4. Top Bid Pricing. You agree to provide Us with an automated, regularly updated mechanism from which We can determine the bid prices (CPC paid to partner) of the top 5 listings advertisements sent to Your Network for individual and specific queries from Partner. For example, Partner may make available an API or other data interface that provides such data.
  • 14.5. CPC Bid. To optimize CPC bid pricing, We may designate Your ad calls/requests to be directed to certain of Our servers, and You shall follow such designations as they are provided to You.
  • 14.6. Traffic Volume and Increases. You will provide Us with 3 days prior written notice before launching with new affiliates or traffic sources that will, in Your reasonable opinion, increase the number of Your queries by the lesser of 50% over then-current levels or 500,000 queries per day. We will have no obligation to pay for Clicks for which a timely notice is not provided under this section.
  • 14.7. Blocking Distribution. We may request that You block distribution of Paid Listings to a specified list of sources (keywords, portions of Your Network, sites and/or IP addresses) or via any distribution method deemed questionable by Us. We also reserve the right to make a written request to You for You to block specific Paid Listings for display to specific domains. Once We make this request, We are not obligated to pay You for any clicks from such domain(s). If You identify the domain that the query originates from to Us, then We may perform this blocking. We reserve the right to ask You to block any international traffic, including international queries and clicks, for international users and listings appearing on international sites. We also reserve the right to ask You to block all adult-related traffic, including adult queries and clicks generated as a result of these adult queries. We may update the list of prohibited distribution partners or sources from time to time, in Our sole and absolute discretion. All sources contained within the list must be blocked from distribution by You as soon as practicable after, but in any event within 5 business days from receipt of notice from Us. We shall have no obligation to pay You for qualified Clicks on Paid Listings after We make the relevant request to block distribution.

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