BuxUp.com Membership Agreement
Last Updated: November
30, 2009.
PLEASE READ THIS MEMBERSHIP AGREEMENT ("AGREEMENT") CAREFULLY BEFORE USING THE SERVICES OFFERED
BY BUXUP.COM ("COMPANY").
BY OPENING/REGISTERING A PUBLISHER AND/OR ADVERTISER ACCOUNT WITH BUXUP.COM, YOU
AGREE TO BECOME BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT
AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT OPEN/REGISTER A
PUBLISHER AND/OR ADVERTISER ACCOUNT WITH BUXUP.COM AND YOU WILL NOT HAVE ANY RIGHT
TO USE THE SERVICES OFFERED BY COMPANY. COMPANY'S ACCEPTANCE IS EXPRESSLY CONDITIONED
UPON YOUR ASSENT TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, TO THE EXCLUSION
OF ALL OTHER TERMS; IF THESE TERMS AND CONDITIONS ARE CONSIDERED AN OFFER BY COMPANY,
ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.
The web pages available at www.buxup.com, and all linked
pages unless indicated otherwise ("Site"),
are owned and operated by BuxUp.Com (“Company”), and are accessed by you
("Member")
under the following terms and conditions:
1. THE SERVICES
Subject to the terms and conditions of this Agreement,
Company may offer to provide certain services that relate to facilitating the purchase
and sale of Internet advertisements by bringing together Internet advertisers and
publishers, as described more fully on the Site, and which are selected by Member
through the process provided on the Site ("Services").
Company may change, suspend or discontinue the Services (or Member's access
thereto) at any time, including the availability of any feature, advertisement,
publisher or content, without notice or liability. Company reserves the right, at
its sole discretion, to refuse to allow access to the Services to any applicant
at any time. Company also reserves the right, at its sole discretion, to modify
this Agreement at any time by posting a notice on the Site, or by sending Member
a notice via email. Use of the Services by Member following such notification constitutes
Member's acceptance of the modified terms and conditions. Member certifies
to Company that if Member is an individual (i.e., not a corporation) Member is at
least 18 years of age. Member also certifies that it is legally permitted to use
the Services and access the Site, and takes full responsibility for the selection
and use of the Services. This Agreement is void where prohibited by law, and the
right to access the Site is revoked in such jurisdictions.
2. PERFORMANCE
Member agrees to comply with the technical specifications
provided by Company to enable proper display of the advertisements in connection
with the Services, including without limitation by not modifying the JavaScript
or other programming provided to Member by Company in any way.
3. COMMUNICATIONS
Member agrees to direct to Company and not to any advertiser
or publisher, as the case may be, all communications regarding any matter arising
out of Members use of the Services.
4. CONTENT
The Site and its contents are protected by local and
international copyright laws and are intended solely for the use of Company Members
and may only be used in accordance with the terms of this Agreement in connection
with authorized use of the Services. All materials displayed or performed on or
accessible through the Site or Services (including, but not limited to text, graphics,
articles, photographs, images, illustrations, audio clips and video clips, also
known as the "Content")
are protected by copyright. The term "Content" as used herein specifically
includes any advertising or other content made available or submitted by any advertiser
and any website or other content published by or associated with any publisher.
Member shall abide by all copyright notices, information, and restrictions contained
in any Content accessed in connection with the Services. Member acknowledges and
agrees that if Member uses any of the Services to contribute or make available Content,
Company is hereby granted a non-exclusive, worldwide, royalty-free, transferable
right to fully exploit such Content (including all related intellectual property
rights) and to allow others to do so in connection with the Services and the Site.
If Member is a publisher, Member grants Company the right to access, index, and
cache Member's website, or any portion thereof, including by automated means
including Web spiders or crawlers.
5. RESTRICTIONS
Member (whether a publisher, advertiser or otherwise)
warrants, represents and agrees that it will not contribute, submit or make available
through the Services, or use the Services in connection with, any Content that that:
(i) is infringing, libellous, defamatory, obscene, abusive, offensive, violent or
hateful; (ii) contains alcohol, or drug abuse; (iii) violates any law or right of
any third party; (iv) promotes or facilitates any of the foregoing, whether directly
or through a peer-to-peer network that is owned, operated or provided by Member.
Without limiting the generality of the foregoing, (i) if Member is an advertiser,
Member agrees to comply with paragraph 7 of the Agreement (Advertisers), which may
be amended from time to time in Company’s sole discretion without notifying Members
(“Advertiser”),
and if Member is a publisher, Member agrees to comply with paragraph 6 of the Agreement
(Publishers), which may be amended from time to time in Company’s sole discretion
without notifying Members (“Publisher”). Company
reserves the right to remove any Content from the Site at any time, or to terminate
Member's right to use the Services or access the Site, for any reason (including,
but not limited to, upon receipt of claims or allegations from third parties or
authorities relating to such Content or if Company is concerned that Member may
have breached the terms of this paragraph), or for no reason at all, subject to
the provisions of paragraph 17 (Termination). Member is responsible for all
of its activity in connection with the Services. Any fraudulent, abusive, or otherwise
illegal activity is grounds for termination of Member's right to use the Services
or to access the Site. Use of the Site or Services to violate the security of any
computer network, crack passwords or security encryption codes, transfer or store
illegal material including materials that are deemed threatening or obscene, or
engage in any kind of illegal activity is expressly prohibited. Member will not
run Maillist, Listserv, any form of auto-responder, or "spam" on the Site,
or any processes that run or are activated while the Member is not logged in.
6. PUBLISHERS
A Member participating as a publisher is required to
adhere to the following policies and paragraph 5 (Restrictions), so please read
them carefully. If Member fails to comply with these policies, Company reserves
the right to disable ad serving to Member’s site and/or disable Member’s account
at any time in accordance with paragraph 17 (Termination). If Member’s account is
disabled, Member will not be eligible for further participation in the programme.
Members who are publishers must adhere to the following
policies:
·
Members may
not click their own ads or use any means to inflate impressions and/or clicks artificially,
including manual methods. Clicks on Company ads must result from genuine user interest.
Any method that artificially generates clicks or impressions on your Company ads
is strictly prohibited. These prohibited methods include, but are not limited to,
repeated manual clicks or impressions, automated click and impression generating
tools and the use of robots or deceptive software. Please
note that clicking your own ads for any reason is prohibited;
·
Members may
not ask others to click their ads or use deceptive implementation methods to obtain
clicks. This includes, but is not limited to, offering compensation to users for
viewing ads or performing searches, promising to raise money for third parties for
such behaviour or placing images next to individual ads. In order to ensure a good
experience for users and advertisers, Members participating in the Company programme
may not: (a) compensate users for viewing ads or performing searches, or promise
compensation to a third party for such behaviour; (b) encourage users to click the
Company ads using phrases such as "click the ads", "support us",
"visit these links" or other similar language; (c) direct user attention
to the ads using arrows or other graphical gimmicks; (d) place misleading images
alongside individual ads; (e) place ads in a floating box script; (f) format ads
so that they become indistinguishable from other content on that page; (g) format
site content so that it is difficult to distinguish it from ads; (h) place misleading
labels above Company ad units. For instance, ads may be labelled "Sponsored
Links" or "Advertisements", but not "Favourite Sites" or
"Today's Top Offers";
·
Members may
not place Company code on pages with content that violates any of our content guidelines.
Some examples include content that is adult, violent or advocating racial intolerance. Sites with Company ads may not include or link to: (a)
pornography, adult or mature content; (b) violent content; (b) content related to
racial intolerance or advocacy against any individual, group or organisation; (c)
excessive profanity; (d) hacking/cracking content; (e) gambling or casino-related
content; (f) llicit drugs and drug paraphernalia content; (g) sales of beer or hard
alcohol; (h) sales of tobacco or tobacco-related products; (i) sales of prescription
drugs; (j) sales of weapons or ammunition (e.g. firearms, firearm components, fighting
knives, stun guns); (k) sales of products that are replicas or imitations of designer
goods; (l) sales or distribution of coursework or student essays; (m) content regarding
programmes which compensate users for clicking ads or offers, performing searches,
surfing websites or reading emails; (n) any other content that is illegal, promotes
illegal activity or infringes on the legal rights of others;
·
Members are
also not permitted to place Company code on pages with content primarily in an unsupported language;
·
Members may
not display Company ads on web pages with content protected by copyright law unless
they have the necessary legal rights to display that content. Please see DMCA policy for more information
the text of which can be found at the U.S. Copyright Office Web
Site, http://www.copyright.gov);
·
Members are
required to adhere to the webmaster
quality guidelines: (a) do not place excessive, repetitive or irrelevant keywords
in the content or code of web pages; (b) avoid hidden text or hidden links; (c)
Avoid "doorway" pages created just for search engines or other "cookie
cutter" approaches such as affiliate programmes with little or no original
content; (d) do not include deceptive or manipulative content or construction to
improve your site's search engine ranking (e.g. your site's PageRank); or
(e) create a useful, information-rich site and write pages that clearly and accurately
describe your content;
·
Company ads
may not be placed on pages receiving traffic from certain sources. For example,
Members may not participate in paid-to-click programmes, send unwanted emails or
display ads as the result of the action of any software application;
·
To ensure a
positive experience for Internet users and Company advertisers, sites displaying
Company ads may not: (a) use third-party services that generate clicks or impressions
such as paid-to-click, paid-to-surf, autosurf and click-exchange programmes; (b)
be promoted through unsolicited mass emails or unwanted advertisements on third-party
websites; (c) display Company ads, search boxes or search results as a result of
the actions of software applications such as toolbars; (d) be loaded by any software
that can trigger pop-ups, redirect users to unwanted websites, modify browser settings
or otherwise interfere with site navigation. It is your responsibility to ensure
that no ad network or affiliate uses such methods to direct traffic to pages that
contain your code; (e) receive traffic from online advertising unless the site complies
with the spirit of “Google's Landing
Page Quality Guidelines”. For instance, users should easily be able to
find what your ad promises;
·
Company code
may not be altered, nor may the standard behaviour, targeting or delivery of ads
be manipulated in any way that is not explicitly permitted by Company. For instance,
clicking Company ads may not result in a new browser window being launched;
·
Members are
encouraged to experiment with a variety of placements and ad formats. However, Company
code may not be placed in inappropriate places such as pop-ups, emails or software.
Members must also adhere to the policies for each product used;
·
Company ads
may not be: (a) integrated into a software application of any kind, including toolbars;
(b) placed in emails or in email programmes; (c) obscured by elements on a page;
(d) placed on any non-content-based page; (e) placed on pages published specifically
for the purpose of showing ads; (f) placed on pages whose content or URL could confuse
users into thinking it is associated with Company due to the misuse of logos, trademarks
or other brand features; or (g) placed on, within or alongside other Company products
or services in a manner that violates the policies of that product or service;
·
Sites showing
Company ads should be easy for users to navigate. Sites may not change user preferences,
redirect users to unwanted websites, initiate downloads, include malware that interfere
with site navigation; and
·
In order to
prevent user confusion, Members may not display Company ads on websites that also
contain other ads or services formatted to use the same layout and colours as the
Company ads on that site. Although you may sell ads directly on your site, it is
your responsibility to ensure that these ads cannot be confused with Company ads.
Company may change our policies at any time, please
check the Site often for updates. It is Member’s responsibility to keep up to date
with, and adhere to, the policies posted.
7. ADVERTISERS
A Member participating as an advertiser is required
to adhere to the following policies and paragraph 5 (Restrictions), so please read
them carefully. If Member fails to comply with these policies, Company reserves
the right to disable ad serving to Member’s site and/or disable Member’s account
at any time in accordance with paragraph 17 (Termination). If Member’s account is
disabled, Member will not be eligible for further participation in the programme.
Member shall not, and shall not allow any third party
to: (i) generate automated, fraudulent or otherwise invalid impressions, inquiries
or clicks or conceal conversions by using methods including but not limited to the
use of robots or other automated query tools and/or computer generated search requests,
and/or the fraudulent use of other search engine optimisation services and/or software;
(ii) use any automated means, form of scraping or other such data extraction methods
to access, query or otherwise collect and use Company advertising related information
from any Company property unless expressly permitted by Company in writing; (iii)
advertise substances, services, products or materials which contravene applicable
laws and regulations in any country in which Member's ads are displayed, placed
or otherwise made available; (iv) violate any technical specifications posted on
any Company property, and/or the policies, as revised from time to time; (v) engage
in any other illegal or fraudulent business practice under the laws of any country
where an ad is made available.
Company may change our policies at any time, please
check the Site often for updates. It is Member’s responsibility to keep up to date
with, and adhere to, the policies posted.
8. DISCLAIMERS
Member acknowledges and agrees that Company has no special
relationship with or fiduciary duty to Member and that Company has no control over,
and no duty to take any action regarding: which users gains access to the Site or
Services; what Content Member accesses or receives via the Site or Services; what
Content other Members may make available, publish or promote in connection with
the Services; what effects any Content may have on Member or its users or customers;
how Member or its users or customers may interpret, view or use the Content; what
actions Member or its users or customers may take as a result of having been exposed
to the Content, or whether Content is being displayed properly in connection with
the Services. Further, (i) if Member is a publisher, Member specifically
acknowledges and agrees that Company has no control over (and is merely a passive
conduit with respect to) any Content that may be submitted or published by any advertiser,
and that Member is solely responsible (and assumes all liability and risk) for determining
whether or not such Content is appropriate or acceptable to Member, and (ii)
if Member is an advertiser, Member specifically acknowledges and agrees that Company
has no control over any Content that may be available or published on any publisher
website (or otherwise), and that Member is solely responsible (and assumes all liability
and risk) for determining whether or not such Content is appropriate or acceptable
to Member. Member releases Company from all liability in any way relating
to Member's acquisition (or failure to acquire), provision, use or other activity
with respect to Content in connection with the Site or Services. The Site may contain,
or direct Member to sites containing, information that some people may find offensive
or inappropriate. Company makes no representations concerning any content contained
in or accessed through the Site or Services, and Company will not be responsible
or liable for the accuracy, copyright compliance, legality or decency of material
contained in or accessed through the Site or Services. Company makes no guarantee
regarding the level of impressions of or clicks on any advertisement, the timing
of delivery of such impressions and/or clicks, or the amount of any payment to be
made to Member in connection with the Services.
THE SERVICES, CONTENT AND SITE ARE PROVIDED ON AN "AS IS" BASIS, WITHOUT
WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION,
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
COMPANY DOES NOT WARRANT THE RESULTS OF USE OF THE SERVICES, INCLUDING, WITHOUT
LIMITATION, THE RESULTS OF ANY ADVERTISING CAMPAIGN, AND MEMBER ASSUMES ALL RISK
AND RESPONSIBILITY WITH RESPECT THERETO. SOME COUNTRIES DO NOT ALLOW LIMITATIONS
ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO
MEMBER.
9. COPYRIGHT DISPUTES
By registering as an advertiser and/or publisher, Member
agrees that the sole method for resolving complaints of copyright infringement if
Member believes that material or content residing on or accessible through the Site
or Services infringes a copyright, shall be through the practices described as follow:
(i) a physical or electronic signature of a person authorized to act
on behalf of the owner of the copyright that has been allegedly infringed; (ii)
identification of works or materials being infringed; (iii) identification
of the material that is claimed to be infringing including information regarding
the location of the infringing materials that the copyright owner seeks to have
removed, with sufficient detail so that Company is capable of finding and verifying
its existence; (iv) contact information about the notifier including address, telephone
number and, if available, e-mail address; (v) a
statement that the notifier has a good faith belief that the material is not authorized
by the copyright owner, its agent, or the law; and (vi) a
statement made under penalty of perjury that the information provided is accurate
and the notifying party is authorized to make the complaint on behalf of the copyright
owner. Please contact
the Company.
10. PRIVACY POLICY
Please review Company's Privacy Policy, which is published on
its Site. By registering as an advertiser and/or publisher, Member is consenting
to the use of any personal information and non-personal information Company collects
from Member as described in the Privacy Policy. Without limiting the generality
of the foregoing, by providing information to us, Member acknowledges that Company
operates in United Kingdom and Member agrees to permit Company to collect, transmit
and use Member’s personal information and non-personal information anywhere that
Company deems necessary for the performance of Company’s Services - including outside
the country where Member is located, across international boundaries - and that
such use shall be subject to the terms and conditions stated in Company’s Privacy
Policy and this Agreement. The Company may be required to disclose Member’s personal
information to government authorities, regulators, or law enforcement in accordance
with applicable laws and antiterrorism laws of countries where it operates.
EXCEPT AS DISCLOSED IN THE PRIVACY POLICY, (I) COMPANY
MAKES NO GUARANTY OF CONFIDENTIALITY OR PRIVACY OF ANY COMMUNICATION OR INFORMATION
TRANSMITTED ON OR THROUGH THE SITE, SERVICES OR ANY WEBSITE LINKED TO THE SITE;
AND (II) COMPANY WILL NOT BE LIABLE FOR THE PRIVACY OF E-MAIL ADDRESSES, REGISTRATION
AND IDENTIFICATION INFORMATION, DISK SPACE, COMMUNICATIONS, CONFIDENTIAL OR TRADE
SECRET INFORMATION, OR ANY OTHER CONTENT STORED ON COMPANY'S EQUIPMENT, TRANSMITTED
OVER NETWORKS ACCESSED BY THE SITE, OR OTHERWISE CONNECTED WITH MEMBER'S USE
OF THE SERVICES.
11. REGISTRATION
As a condition to using Services, Member may be required
to register with Company and select a password and Member name ("User
ID"). Member
shall provide Company with accurate, complete, and updated registration information.
Failure to do so shall constitute a breach of this Agreement, which may result in
immediate termination of Member's account. Member may not (i) select or
use as a User ID a name of another person with the intent to impersonate that person;
(ii) use as a User ID a name subject to any rights of a person other than Member
without appropriate authorization; (iii) register for the Services using more than
one User ID. Company reserves the right to refuse registration of, or cancel a User
ID in its discretion. Member shall be responsible for maintaining the confidentiality
of Member's Company password and for all activities that occur under Member’s
password or account. Member agrees to (a) immediately notify Company of any
unauthorized use of Member’s password or account or any other breach of security,
and (b) ensure that Member exits from its account at the end of each session. Company
cannot and will not be liable for any loss or damage arising from Member’s failure
to comply with this paragraph 11.
12. INDEMNITY
Member will indemnify and hold Company, its parents,
subsidiaries, affiliates, officers and employees, harmless, including costs and
attorneys' fees, from any third party claim proceeding, suit, investigation
or demand due to or arising in whole or in part out of Member's access to the
Site, use of the Services, the violation of this Agreement by Member (including,
without limitation, the violation of the Publisher
and/or the Advertiser ), or the infringement by Member, or any third party
using the Member's account, of any intellectual property or other right of any
person or entity. Member agrees that Company will have sole and exclusive control
over the defence and settlement of any such third party claim.
13. FEES AND PAYMENT
Some of the Services require payment of fees. Member
shall pay all applicable fees, as described on the Site in connection with such
Services selected by Member. Member agrees that Company may offset any amount owed
to Member in Member’s capacity as a publisher by any amount owed by Member to Company
in Member’s capacity as an advertiser. If
Member is an advertiser:
Member shall pay all applicable fees prior or after, as described on the Site in
connection with such Services selected by Member. Company reserves the right to
change its price list and to institute new charges at any time, upon prior notice
to Member, which may be sent by email or published on the Site. Amounts due shall
be calculated solely based on records maintained by Company. No other measurements
or statistics of any kind shall be accepted by Company or have any effect under
this Agreement. Company reserves the right to suspend any advertisement in the event
of non-payment by Member of any amount owed to Company. In the event that Company
institutes legal proceedings to collect any amount outstanding to Company, Member
shall be liable for any resulting collection costs (including reasonable legal/attorneys’
fees other costs). Member agrees to pay all applicable taxes or charges imposed
by any government entity in connection with Member's use of the Services. Member
agrees that Company may apply any overpayment by Member on one account to set-off
an amount owing on another related account or to pay any amounts that are past due
to Company for a period of 90 Days. Member agrees to pay all sales, use and other
applicable taxes or charges imposed by any government entity in connection with
Member's use of the Services. If Member is a publisher: Member shall receive as payment a percentage of the
sale price of advertisements displayed in connection with Member's website as
determined by Company for Member's use of the Services. Member's payable
revenue shall be determined on the first day of each month, on which day those revenues
accrued to Member's account sixty (60) or more days earlier shall become eligible
to be paid. Payments to Member shall be sent by Company within approximately ten
(10) days of the previous calendar month end, if Member's earned balance is
greater than or equal to Member's minimum check or electronic payment amount
(“Minimum Amount”). If Member's earned balance is less than Member's Minimum
Amount, no check or electronic payment shall be sent and the Company shall make
the aforesaid determination a new on the first day of the following month.
Member agrees that (i) any payments that may become due to Member (as described
on the Site) are specifically conditioned upon Company's receipt of full payment
from the applicable advertiser, and that any such payments do not become due to
Member until 60 days after Company's receipt of full payment from the applicable
advertiser, and (ii) if Company does not receive the applicable payment in full
from any such advertiser, or Company’s payment from advertiser is later reversed
at any time, Company may debit Publisher’s account or reverse or stop payment on
any payment previously made to Publisher in respect of such advertisements, and
Company shall have no liability or responsibility to Member (and Member hereby releases
Company) with respect thereto. If Member disputes any payment made in connection
with the Services, Member must notify Company in writing within seven (7) days of
any such payment. Failure to so notify Company shall result in the waiver by Member
of any claims related to such disputed payment. Company shall not be liable for
any payment based on (i) any fraudulent impressions, clicks or acquisitions generated
by any person, robot, automated program or similar device, as reasonably determined
by Company; (ii) advertisements delivered to end users whose browsers have JavaScript
disabled; (iii) impressions clicks or acquisitions commingled with a significant
number of fraudulent impressions clicks or acquisitions described in (i) above,
(iv) any impressions, clicks or acquisitions that arise in whole or in part as a
result of any violation of Company’s Publisher (including any clicks, impressions
or acquisitions that result from a publisher site that violates the Publisher);
or (v) any impressions, clicks or acquisitions that arise as a result of another
breach of this Agreement by Member for any applicable pay period. Company
reserves the right to withhold payment or charge back Member's account due to
any of the foregoing or any breach of this Agreement by Member. In addition, if
Member is past due on any payment to Company in connection with the Services (for
example, from Member’s use of the Services as an advertiser), Company reserves the
right to withhold payment until all outstanding payments have been made. All
payments to Member are contingent upon, and will be made pursuant to “Buxup.com
Tip” as the same
may be updated from time to time by Company in its sole discretion. To ensure
proper payment, Member is solely responsible for providing and maintaining accurate
contact and payment information associated with Member's account and User ID.
Any bank fees related to returned or cancelled checks due to a contact or payment
information error or omission may be deducted from the newly issued payment.
Without limiting the generality of the foregoing, Publisher acknowledges and agrees
that checks payable to Publisher that are not cashed within 30 days from the date
of issuance will be cancelled by Company and will not be reissued, and in the event
of such cancellation, Publisher irrevocably waives any right to payment of amounts
represented by such checks. Member agrees to pay all income taxes and other applicable
taxes or charges imposed by any government entity in connection with Member's
use of the Services.
If you are not fully satisfied with Company or your advertising campaign, you MAY
BE eligible to receive a refund. Please contact us through our Contact
Us page and explain why you are unsatisfied. Company will evaluate
refund inquiries for all reasonable requests, as listed below, for up to the last
30 days of receiving your request. We will provide a response to your request within
5 days of its receipt. Please note: all refunds are issued in the form of an account
credit.
We MAY refund advertisers money for we believe that
a publisher provided invalid
ad clicks and/or impressions. We will not refund advertisers money if (i) ad not
performing or drop off in clicks/impressions other than host site down; (ii) ad
statistics do not match third party analytics software; (iii) advertiser's landing
page is down; (iv) advertiser misunderstanding about products, policies, or services;
(v) advertiser did not pause network ad; and (vi) advertiser unaware of flat rate
ad recurrence.
14. CONFIDENTIALITY
Member agrees not to disclose Company Confidential Information
without Company's prior written consent. "Company Confidential Information" includes without limitation: (i) all Company
software, technology, programming, technical specifications, materials, guidelines
and documentation Member learns, develops or obtains that relate to the Services
or the Site; (ii) click-through rates or other statistics relating to Site performance
in the Services provided to Member by Company; and (iii) any other information designated
in writing by Company as "confidential" or any designation to the same
effect. "Company Confidential Information" does not include information
that has become publicly known through no breach by Member or Company, or information
that has been (a) independently developed without access to Company Confidential
Information as evidenced in writing; (b) rightfully received by Member from a third
party; or (c) required to be disclosed by law or by a governmental authority.
15. USE OF INFORMATION
Company may share aggregate (i.e., not personally identifiable)
information about Member with advertisers, publishers, business partners, sponsors,
and other third parties. Additionally, Member grants to Company a non-exclusive
license to republish in any medium advertisements, web pages, banners, interstitials
or other content for purposes of marketing Company products and Services.
16. LIMITATIONS OF LIABILITY AND FORCE MAJEURE
EXCEPT FOR ANY INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS
HEREUNDER OR YOUR BREACH OF ANY INTELLECTUAL PROPERTY RIGHTS AND/OR PROPRIETARY
INTERESTS RELATING TO THE PROGRAM, (i) IN NO EVENT SHALL EITHER PARTY BE LIABLE
UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, OR PUNITIVE
DAMAGES WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE
OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND (ii) COMPANY'S AGGREGATE LIABILITY
TO MEMBER UNDER THIS AGREEMENT FOR ANY CLAIM IS LIMITED TO THE NET AMOUNT PAID BY
COMPANY TO MEMBER DURING THE THREE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF
THE CLAIM. Each party acknowledges that the other party has entered into this Agreement
relying on the limitations of liability stated herein and that those limitations
are an essential basis of the bargain between the parties. Without limiting the
foregoing and except for payment obligations, neither party shall have any liability
for any failure or delay resulting from any condition beyond the reasonable control
of such party, including but not limited to governmental action or acts of terrorism,
earthquake or other acts of God, labour conditions, and power failures.
17. TERMINATION
Either party may terminate the Services at any time
by notifying the other party by any means. Company may also terminate or suspend
any and all Services and access to the Site immediately, without prior notice or
liability, if Member breaches any of the terms or conditions of this Agreement,
policies and guidelines published on Site. Any fees paid hereunder are non-refundable
and non-cancelable. Upon termination of the Member's account, Member's
right to use the Services will immediately cease and Member will remove all Company
HTML code from Member's websites. All provisions of this Agreement which by
their nature should survive termination shall survive termination, including, without
limitation, indemnification provisions, warranty disclaimers, and limitations of
liability.
18. REPRESENTATIONS AND WARRANTIES
Member represents and warrants that (i) Member is the
owner of each website Member designates in connection with the use of Services or
that Member is legally authorized to act on behalf of the owner of such website
for the purposes of this Agreement, and (ii) Member has all necessary right, power
and authority to enter into this Agreement and to perform the acts required of Member
thereunder or hereunder; (iii) when participating in Company’s network as an advertiser,
Member will comply with paragraph 7 (Advertisers); (iv) when participating in Company’s
network as a publisher, Member will comply with with paragraph 6 (Publishers), and
(v) each of Member's websites and any material displayed therein: (a) comply
with all applicable laws, statutes, ordinances and regulations; (b) do not breach
and have not breached any duty toward or rights of any person or entity including,
without limitation, rights of intellectual property, publicity or privacy, or rights
or duties under consumer protection, product liability, tort, or contract theories;
and (c) are not hate-related in content.
19. MISCELLANEOUS
The failure of either party to exercise in any respect
any right provided for herein shall not be deemed a waiver of any further rights
hereunder. Company shall not be liable for any failure to perform its obligations
hereunder where such failure results from any cause beyond Company's reasonable
control. If any provision of this Agreement is found to be unenforceable or
invalid, the court should endeavour to give effect to the parties' intentions
as reflected in the provision, and the other provisions of this Agreement shall
remain in full force and effect. This Agreement is not assignable, transferable
or sublicensable by Member except with Company's prior written consent. This
Agreement shall be governed by and construed in accordance with the laws of the
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