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Terms and Conditions for Publishers
Terms and
Conditions for Publishers
Viral Marketing Media Corp (“VMM”), and Publisher, enter into this
Publisher Network Agreement (“Agreement”) to establish the terms and
conditions by which Publisher may enter the VMM Network and market
advertisements on behalf of VMM customers. VMM and Publishers agree to
be legally bound as follows:
1. Definitions
“Ad” or “Creative” means the graphic or text file(s) provided to
Publisher to market on behalf of Advertisers and/or VMM.
“Advertiser” or “Customer” means VMM and/or the advertiser or
advertising agency providing Ads to VMM for use on Publisher’s Website(s)
as specified herein.
“Approved Website(s)” means Publisher’s domain(s) and/or specific root
URL(s) approved by VMM.
“Click,” “Click-Thru” or “Click-Through” means the activation of a
hyperlink using a mouse or other input device. The click-through is
essential to the interactivity of online advertising.
“Flight Dates” means the time period, and associated start and end
dates, over which an Ad runs.
“Impressions” means the number of times an Ad is served to, and received
by, a unique visitor on Publisher’s Website or other media as measured
by VMM.
“Incentivized Traffic” means a Website where Ads are placed where Users
have some sort of incentive to click through on Ads.
“Network IP” means the Ads, VMM Code or other intellectual property made
available to Publisher in connection with its performance under this
Agreement.
“Opt-in” means that the User has made an active, affirmative choice to
select the Ad in question in order to be counted as a Unit. Forced,
negative choice, passive, opt-out or other types of non-active,
non-affirmative choice actions are not “opt-in.”
“Opt-out” means that the User is required to make an active and/or
affirmative choice in order to not be counted as a Unit. The Website may
use a User’s collected information unless the User specifically directs
the Website not to do so.
“Prohibited Conduct” means conduct during the course of performance of
this Agreement that is listed or related to the proscribed conduct
listed in Section 3.
“Program” means a specific Advertiser advertising campaign available in
the VMM network for Publisher to promote.
“Program Terms” means the special terms and conditions applicable for a
specific advertising campaign.
“Publisher Acceptance Email” means an email by VMM clearly communicating
acceptance of Publisher’s Network Application, which also contains
further instructions for Publisher regarding participation in the VMM
Network.
“Publisher Media” shall mean the Website, search engine or other
electronic media on which Publisher places Ads.
“Unique Click” means the number of times, as recorded by VMM’s server, a
User viewing Publisher’s Media, as identified by a cookie or IP address,
clicks on a Creative; provided however, that a click on a specific
Creative by a particular User shall only be counted as a Unique Click
once every 24-hour period.
“Unique Sign-Up” means a User who Opts-In or Double Opts-In to a Website
who is not already a member of or registered with the Advertiser or
Advertiser’s campaign.
“Unit” means a User’s completion of the act requested by the specific
Advertiser supplying Ads through the VMM Network.
“User” means any person accessing Publisher’s Media.
“Valid Sign-Up” means a Unique Sign-Up that provides complete, valid
information as required by an Advertiser.
“VMM Code” means pixels, intellectual property or other computer code
provided by VMM for use by Publisher.
“VMM Network” means VMM's affiliated group of Websites who have
authorized VMM to insert Ads.
“Website” means an HTML document containing a set of information
available via the Internet.
2. VMM Network
(a) Membership. Membership in the VMM Network is subject to prior
approval by VMM. VMM reserves the right to refuse service to any new or
existing Publisher for any reason, in its sole discretion. Approval of
membership in the VMM Network is limited to the domain(s) and/or
specific root URL(s) for which Publisher has applied for approval by
VMM. VMM reserves the right, in its sole discretion and without
liability, to reject, omit or exclude any Publisher or Website for any
reason at any time with or without notice to Publisher and regardless of
whether such Publisher or Website was previously accepted. Without
limiting the foregoing, VMM reserves the right to require a potential or
existing Publisher to submit detailed descriptions or explanations of
the Publisher’s Website(s) or application(s) functionality and back-end
technology through a questionnaire or survey. Refusal to participate or
answers deemed unsatisfactory constitutes grounds for non-acceptance or
termination from the VMM Network. This Agreement is voidable by VMM
immediately if Publisher fails to disclose, conceals or misrepresents
itself in any way. Unless otherwise advised due to technological issues
by VMM, any person, Publisher, or affiliated group may have only one
account; however, each account may include multiple Websites/domains. In
the event Publisher receives approval from VMM for multiple
Websites/domains, each and every Website/domain is obligated and bound
by these same terms and conditions. In any event, VMM reserves the right
to reject or approve additional Websites, and is under no obligation to
accept any Website(s), even if the additional Website(s) is the property
of an already approved Publisher. All activity for a given account will
be consolidated into one report.
(i) Sub-Publishers. From time-to-time, Publisher may desire to use its
business partners and associates to fulfill the obligations or exercise
the rights under a particular Program. For the purposes of this section,
any business partners or associates of Publisher that participate in or
perform any activities for Publisher as part of this Agreement shall be
deemed to be a “Sub-Publisher.” VMM reserves the right to review and
approve or reject any and all Sub-Publishers used by Publisher and may
revoke prior approvals of any Sub-Publisher at any time. Sub-Publishers
must meet the same criteria for approval as the Publisher as set forth
in this Agreement and must comply with all the terms and conditions that
are applicable to Publisher under this Agreement or under Program Terms.
Publisher is responsible for and shall fully and unconditionally
indemnify VMM for any and all actions of any Sub-Publisher, including
payment of legal fees and costs if necessary. VMM may terminate a
Publisher at any time based on the actions of that Publisher’s
Sub-Publishers. Once a Sub-Publisher has been officially approved by
VMM, notices to the Publisher shall be deemed notice to that Publisher’s
approved Sub-Publishers. VMM further reserves the right to withhold or
refuse payment to any Sub-Publisher for any reason whatsoever. VMM
further reserves the right to withhold or refuse payment to any
Publisher should its Sub-Publishers breach this Agreement.
(b) Network Application. Publisher agrees to provide VMM and
Advertiser’s with accurate information about Publisher and your
promotional methods, and to maintain up-to-date “Account” information
(such as contact information, Web sites used, etc.). In Your VMM
Account, Publisher must accurately, clearly and completely describe all
promotional methods by selecting the appropriate descriptions and
providing additional information when necessary. VMM’s acceptance of
Publisher’s Network Application shall in all cases be evidenced by a
Publisher Acceptance Email. If a Publisher Acceptance Email is not sent
to Publisher or Publisher does not begin participation in the VMM
Network in a timely manner upon receipt of such an email, then this
Agreement shall be of no force and effect, and VMM shall have no
obligation to Publisher hereunder.
(c) Services. Publisher understands and agrees that from time to time
the VMM services hereunder may be inaccessible, unavailable or
inoperable for any reason, including, without limitation, (i) equipment
malfunctions; (ii) periodic maintenance procedures or repairs which VMM
may undertake from time to time; or (iii) causes beyond the control of
VMM or which are not reasonably foreseeable by VMM, including, without
limitation, interruption or failure of telecommunication or digital
transmission links, hostile network attacks, the unavailability,
operation, or inaccessibility of Websites or interfaces, network
congestion or other failures. While VMM will attempt to provide the
services on a continuous basis, Publisher acknowledges and agrees that
VMM has no control over the availability of the services on a continuous
or uninterrupted basis. Publisher also understands and agrees that VMM
is not responsible for the functionality of any third-party Website or
interface. Terms of this Agreement are subject to VMM hardware,
software, and bandwidth traffic limitations. VMM’s failure to deliver
because of technical difficulties does not represent a failure to meet
the obligations of this Agreement.
(d) VMM Websites. For purposes of this Agreement, all Websites that are
owned, operated or hosted by or on behalf of VMM, including, without
limitation, VMM’s branded Website at http://www.viralmarketingmedia.com,
are referred to herein collectively as the “VMM Websites.” Publisher
agrees that it will not use the VMM Websites or any content therein or
data obtained there from for any purposes other than to fulfill its
obligations under this Agreement and that Publisher will not disseminate
any of the information contained on the VMM Websites. Publisher agrees
that it will not use any automated means, including, without limitation,
agents, robots, scripts, or spiders, to access or manage its account
with VMM or to monitor or copy the VMM Websites or the content contained
therein except via automated means expressly made available by VMM, if
any, or authorized in advance and in writing by VMM (e.g. VMM-approved
third-party tools and services). The VMM Websites may contain robot
exclusion headers and Publisher agrees that it will not bypass VMM’s
robot exclusion headers (including using any device, software or routine
to accomplish that goal), or to interfere or attempt to interfere with
the proper working of the VMM Websites or any program thereon, or the
VMM system. Without limitation to the foregoing, Publisher further
agrees that it will not take any action that imposes an unreasonable or
disproportionately large load on the VMM Websites, any programs thereon,
or VMM’s infrastructure, as determined by VMM.
3. Website Content and Prohibited Conduct
(a) Prohibited Websites. VMM Code and Network IP shall not be used on
Websites that contain forums, discussion boards, chat rooms, or any
content area that is open to public updates without regulation without
prior written approval of VMM.
(b) Prohibited Conduct. VMM does not accept Websites that produce,
promote, relate to or have characteristics of Prohibited Conduct.
“Prohibited Conduct” is defined as:
(i) Ad Placement & Tracking. Publisher shall not: (1) intentionally
place Creatives on blank web pages or on web pages with no content; (2)
place Creatives on non-approved Websites or web pages, or in such a
fashion that may be misleading or deceptive to the User; (3) incentivize
or offer points, rewards, cash or prizes for any User action unless it
is expressly noted that the campaign is an incentive offer; (4) place
misleading statements near an Ad (i.e., “You will win $5,000”); (5)
redirect traffic to a Website other than that listed by the particular
Advertiser; (6) ask Users to take advantage of Ads or offers other than
those listed by the particular Advertiser; (7) serve Creatives, or drive
traffic to such Creatives, using any downloadable applications without
the prior written approval of VMM, which, if provided, is subject in
each case to the following conditions: Creatives delivered in approved
downloadable applications may only be shown once per User session when
the application is active, enabled and clearly recognizable by the end
User as being active and enabled. Serving Creatives at anytime when the
downloaded application is not active is strictly prohibited and grounds
for immediate termination without pay; (8) use invisible methods to
generate Impressions, Clicks, or transactions that are not initiated by
the affirmative action of the User; (9) engage in any advertising via
facsimile or telemarketing; or (10) attempt in any way to alter, modify,
eliminate, conceal, or otherwise render inoperable or ineffective the
Website tags, source codes, links, pixels, modules or other data
provided by or obtained from VMM that allows VMM to measure Ad
performance and provide its services.
(ii) Websites. Publisher shall not place any Creative or Network IP on
Websites that contain, promote, reference or have links to: (1)
profanity, sexually explicit materials, hate material, material that
promotes violence, discrimination based on race, sex, religion,
nationality, disability, sexual orientation, age, or family status, or
any other material deemed unsuitable or harmful to the reputation of VMM
and/or its Advertisers; (2) software piracy (warez, cracking, etc.),
hacking, phreaking, emulators, ROM’s, or illegal MP3 activity; (3)
illegal activities or advice, deceptive acts or practices or violations
of the intellectual property or privacy rights of others; (4)
non-English language pages, or free hosted pages (i.e., Geocities, Xoom,
Tripod, Talk City, etc.); (5) Websites under construction, hosted by a
free service, or that do not own the domain they are under; (6) charity
clicks/donations, paid to surf, active x downloads, no content (link
site), all affiliate links; or (7) activities generally understood as
Internet abuse, including but not limited to the sending of unsolicited
bulk electronic mail or the use of Spyware. For purposes hereof,
“Spyware” shall mean computer programs or tools that (i) alter a
computer User’s browser or other settings or use an ActiveX control or
similar device to download ad supporting software without providing fair
notice to and obtaining affirmative consent from the User; (ii) prevent
a computer User’s reasonable efforts to block the installation of or
disable or remove unwanted software; (iii) remove or disable any
security, anti-Spyware or anti-virus technology on a User’s computer;
(iv) send email through a User’s computer without prior authorization;
(v) open multiple, sequential, stand-alone advertisements in the
consumer’s Internet browser which cannot be closed without closing the
Internet browser or shutting down the computer; or (vi) other similar
activities that are prohibited by applicable law.
(iii) Search. Publisher shall not: (1) violate guidelines of any search
engines being utilized; (2) engage in search engine spam, doorway pages,
cloaking, etc.; (3) bid on any trademarked names or terms in any PPC/“keyword”/“adword”/campaign
unless given express written permission by VMM; or (4) conduct search
ads falsely suggesting a link between VMM and a third-party or otherwise
infringing on a third-party’s intellectual property or privacy rights.
(iv) Email. Publisher shall not: (1) use any name other than Publisher’s
or Advertiser’s in the “from” box when sending an email to a consumer;
using any other name, including but not limited to VMM’s name, is
prohibited and will result in non-payment and immediate termination; (2)
use deceptive or misleading subject lines; (3) send any commercial email
to any person who has requested not to receive email from Publisher
and/or Advertiser; or (4) use any name contained in VMM’s suppression
list for any purpose other than as expressly provided herein. Publisher
understands that upon doing so it automatically forfeits the right and
claim to any revenue generated for its account, and Publisher’s account
may be immediately terminated. All email campaigns must be conducted in
accordance with the terms of Exhibit A to this Agreement.
(v) Co-Registration. Publishers who operate co-registration campaigns to
generate information submitted by users or leads ("Leads") for
Advertisers, shall: (1) obtain written pre-approval from VMM, and if
necessary the applicable Advertiser, for (a) all sites to be used by the
Publisher for each Program and (b) the transfer of leads in the form of
either a successful post for real-time transfer or approval of the test
file for batch or FTP files; (2) establish and prominently display on
Publisher’s website a privacy policy that permits the collection, use
and transfer of data as contemplated by the co-registration campaign;
(3) ensure that all Lead data is stored in a secure manner, consistent
with industry standards; (4) ensure that the Leads provided (i) meet the
VMM and Advertiser campaign requirements, (ii) are not fraudulently
obtained, including but not limited to modifying approved lead
generation forms, publishing an offer on an unapproved site, utilizing
automated software or manpower to complete co-registration forms,
incentivization of co-registration forms and/or a publisher's inability
to provide the user IP and time/date stamp for each lead; (iii) comply
with specific co-registration program requirements, including but not
limited to not exceeding any established lead caps and/or promoting a
co-registration offer prior to VMM’s written approval of creative and
data transfer. VMM may determine in its sole discretion whether leads
are considered valid. All right, title and interest in the Leads shall
vest exclusively with VMM or its Advertisers and Publisher may not use,
sell, transfer or assign or attempt to monetize the Leads for its own
purposes.
4. Ad Content and Placement
(a) Compliance with Industry Standards. Publisher agrees to undertake
and complete the services as specified by the VMM Network, including all
Ad placement restrictions or channels specified, in accordance with the
highest industry standards. Publisher shall position the Ads in such a
manner to assure that they are fully and clearly visible to consumers
and displayed in a similar manner as other merchants included in the
Website or email.
(b) No Modifications to Creative, Code or Network IP. Except as
permitted under this Agreement, Publisher shall not alter, copy, modify,
take, sell, re-use, or divulge in any manner any Creative, Network IP or
computer code provided by VMM without VMM’s prior written consent.
Publisher may not redirect traffic to a Website other than that listed
by VMM or the Advertiser, or ask Users to take advantage of other Ads or
offers other than those listed by VMM or Advertiser. Any VMM Network IP
or content which is copied, changed or altered without prior written
consent will result in non-payment for the campaign and may result in
termination. Any approved modifications to VMM Code or Network IP shall
be owned solely by VMM.
(c) Requirements. Publisher shall be solely responsible for placing Ads
on the Publisher Media, which placement shall be subject to the terms
and conditions of this Agreement and any offer-specific Advertiser
Program Terms. Publisher also is responsible for full delivery of valid
data in the requested format as specified through the user interface or
by a VMM representative. Publisher shall only place Ads on Approved
Websites. VMM pop-under windows cannot be launched from Websites that
launch more than a total of two pop windows, including the VMM
pop-under.
(d) Flight Dates and Unit Caps. Where Advertiser has set specified
Flight Dates for an Ad and/or capped the Units it is purchasing,
Publisher shall not place Ads after either limitation is met. Publisher
also shall not run an Ad after Advertiser has posted new Creative to run
in lieu of such Ad. VMM reserves the right to pay Publisher only for
Units delivered using the proper Creative and/or within the Flight Dates
or Unit limitations. PUBLISHER AGREES TO REVIEW THE AVAILABILITY OF
CREATIVES THAT IT HAS PLACED WITHIN ITS MEDIA ON A REGULAR AND TIMELY
BASIS. IT IS THE PUBLISHER’S SOLE RESPONSIBILITY TO CHANGE CREATIVES
WITHIN ITS MEDIA WHEN A CREATIVE IS NO LONGER AVAILABLE IN THE VMM
NETWORK OR HAS NO UNITS REMAINING FOR DELIVERY. VMM ASSUMES NO
RESPONSIBILITY TO NOTIFY PUBLISHER WHEN AN AD IS NO LONGER AVAILABLE IN
THE VMM NETWORK OR HAS NO UNITS REMAINING FOR DELIVERY.
(e) All email campaigns are subject to the additional terms set forth in
Exhibit A.
5. Data Qualification and Integrity; Network Quality
(a) VMM will only pay for Unique and Valid Sign-Ups, as defined above.
Any data submitted that is not a Unique or Valid Sign-Up will not be
paid. Upon payment, VMM shall have no further obligation to Publisher.
VMM and/or its Advertisers, in their sole discretion, shall have the
right to market and re-market the person(s) and or data represented in
the Unit, without further obligation to Publisher.
(b) VMM will not pay or compensate Publisher in any way for leads or
acquisitions that have been received and rejected by an Advertiser for
any reason, including but not limited to duplicates, invalid data,
incomplete data, or fraudulent data, or for leads or acquisitions that
have been determined by VMM, in its sole discretion, to be duplicates,
invalid, incomplete or fraudulent. In the event that Publisher has
already received payment for such leads or acquisitions, VMM reserves
the right to seek credit or remedy from future earnings or to demand
reimbursement from Publisher. The Unit price for Valid Sign-Ups offered
to and accepted by Publisher includes compensation for such invalid data
and the price for Valid Sign-Ups would otherwise be less.
(c) Publisher shall not generate Clicks, sign-ups or leads by (i) auto
spawning browsers, automatically redirecting Users, or any other
technique of generating “automated” Click-Throughs; (ii) falsely
generating User data; (iii) posting User data that is older than 48
hours; (iv) requiring Users to click on an Ad before entering any area
of a Website; or (v) Prohibited Conduct.
(d) All Click-Throughs must (i) go through VMM’s gateway; a(ii) be
recorded by VMM’s server; and (iii) include Publisher’s unique tracking
code.
(e) VMM will not tolerate or accept any activities it deems harmful or
potentially damaging to its reputation and/or business, or that of its
Advertisers, including but not limited to the activities prohibited
under this Agreement. VMM employs individuals who actively monitor the
Publisher Websites within the VMM Network to ensure that Advertisers are
receiving the highest quality leads. VMM also has developed an advanced
anti-fraud system and regularly audits Publisher traffic. Publishers
that commit fraudulent activities, including but not limited to false
clicks, leads, acquisitions, or impressions, will not be compensated for
fraudulent leads and may have their accounts terminated from the VMM
Network.
6. Proprietary Rights
(a) Licenses. Provided that Publisher complies with all provisions of
this Agreement, VMM hereby grants to Publisher a nonexclusive,
nontransferable, limited, revocable license to use, execute and display
the Network IP solely for the purpose of performing its obligations
hereunder. Except for the limited license expressly granted in this
Section, nothing in this Agreement shall be construed as VMM granting
Publisher any right, title or interest in Network IP or VMM or
Advertiser’s proprietary rights. Publisher shall not interfere with VMM
or Advertiser’s proprietary rights. Publisher acknowledges and agrees
that VMM and/or Advertiser owns all right, title and interest in and to
the Network IP and all related intellectual and proprietary rights of
any kind anywhere in the world. Publisher’s use of the Network IP or the
results created thereby, or dissemination or distribution of this
information except as expressly permitted by this Agreement is strictly
forbidden and will result in the termination of this limited license and
may result in Publisher in non-payment and being held liable under
applicable law.
(b) Intellectual Property Ownership. Subject to the limited licenses
granted to VMM and Publisher hereunder, each party shall own and retain
all right, title and interest in its trade names, logos, trademarks,
service marks, trade dress, Internet domain names, copyrights, patents,
trade secrets, know how and proprietary technology, including without
limitation, those trade names, logos, trademarks, service marks, trade
dress, copyrights, patents, testimonials, endorsements, know how, trade
secrets and proprietary technology currently used or which may be
developed and/or used by it in the future (“Intellectual Property”).
Except as provided in this Agreement, neither party may distribute,
sell, reproduce, publish, display, perform, prepare derivative works or
otherwise use any of the Intellectual Property of the other party
without the express prior written consent of such party.
(c) Data Ownership. Publisher understands that all data, including but
not limited to personally identifiable information provided by Users in
response to an Ad and any and all reports, results, and/or information
created, compiled, analyzed and/or derived by VMM from such data is the
sole and exclusive property of Advertiser and/or VMM and is considered
Confidential Information pursuant to this Agreement. VMM and/or its
Advertisers, in their sole discretion, shall have the right to market
and re-market the Users and/or data without further obligation to
Publisher. Publisher shall not make any use of, copy, make derivative
works from, sell, transfer, lease, assign, redistribute, disclose,
disseminate, or otherwise make available in any manner, such
information, or any portion thereof, to any third-party. Unless
otherwise agreed to in writing by the parties, any other use of such
information is strictly prohibited.
7. Representations and Warranties
(a) Publisher Responsibility. The parties hereby acknowledge that
Publisher is solely responsible for the method of dissemination of the
Ads, and that VMM will not have any control over the method of
dissemination and is relying entirely on these warranties made by
Publisher.
(b) Publisher Warranties. Publisher represents, warrants, covenants and
acknowledges that (i) it will provide and maintain the resources,
personnel and facilities suitable to perform its obligations under this
Agreement; (ii) it will comply with all applicable federal, state and
local laws, rules and regulations including, without limitation, laws
relating to advertising, the Internet, privacy, email, and unfair
business practices; (iii) it will not engage in Prohibited Conduct; (iv)
it will comply with its privacy policy; (v) it will not participate in
any performance based advertising relationship with any Advertiser that
Publisher became aware of through the VMM Network, while an approved VMM
Publisher and for 180 days thereafter, unless a previously existing
business relationship between Advertiser and Publisher can be
established; (vi) Publisher is at least 18 years of age on the effective
date of this Agreement; and (vii) VMM does not make any specific or
implied promises as to the successful outcome of any campaigns.
(c) Mutual Warranties. Each party represents and warrants to the other
that (i) it has the full right, power, legal capacity, and authority to
enter into, deliver and fully perform under this Agreement; (ii) neither
the execution, delivery, nor performance of this Agreement will result
in a violation or breach of any contract, agreement, order, judgment,
decree, rule, regulation or law to which such party is bound; and (iii)
such party acknowledges that the other party makes no representations,
warranties, or agreements related to the subject matter hereof that are
not expressly provided for in this Agreement.
8. Privacy
(a) Obligations. Internet consumer privacy is of paramount importance to
VMM, its subsidiaries and its Advertisers. VMM is committed to
protecting the privacy of consumers and Advertisers, and to doing its
part to maintain the integrity of the Internet. Publisher therefore
affirms and attests that it will adhere to fair information collection
practices with respect to its performance under this Agreement.
(b) Privacy Requirements. Publisher shall clearly post on its Website(s)
an easy to understand privacy policy that (i) is in compliance with all
FTC guidelines and any other applicable laws, rules and regulations with
respect to online privacy; (ii) identifies the nature and scope of the
collection and use of User’s information gathered by Publisher and
offers the User an opportunity to opt-out from such collection and use
of the data; and (iii) contains language similar to the following:
"We have contracted with VMM to monitor certain pages of our website for
the purpose of reporting website traffic, statistics, advertisement
“click-throughs,” and/or other activities on our website. Where
authorized by us, VMM may use cookies, web beacons, and/or other
monitoring technologies to compile statistics about our website
visitors.”
Publisher shall fully comply with the privacy policy posted on
Publisher’s Website(s) at all times. Publisher shall notify VMM at least
three (3) business days in advance of any changes to any applicable
privacy policy and shall provide VMM with a revised copy of the privacy
policy prior to the effective date of the change(s).
(c) Cookies. Publisher acknowledges that (i) cookies are important
devices for measuring advertising effectiveness and ensuring a robust
online advertising industry; and (ii) efforts are required to increase
User awareness about the use of cookies and their role in providing free
content and other benefits to Users. Publisher agrees to take such steps
as may be commercially reasonable and appropriate to promote User
awareness about cookies or similar devices as may be identified by VMM.
9. Payment
(a) Payment Rate. VMM reserves the right to set campaign rates, which
may vary with market conditions. Publishers typically will be paid on or
about the 30th of the month following the month in which (i) earnings
are accrued or (ii) an Advertiser confirms an action. Publishers will be
paid at the account level. All accounts will be settled in US dollars
(USD$). No check will be issued for any amount less than USD$100
(“Minimum Payment Threshold”). All unpaid earnings will rollover to the
next pay period. Any Publisher account that goes unpaid for six months
becomes subject to immediate payoff and dismissal from the VMM Network.
As a condition to VMM’s obligation to make payments hereunder to
Publisher, Publisher must (i) pass VMM’s business identity examination
and (ii) have on file with VMM a completed and accurate W-9 (for
US-based Publishers) or a completed and accurate W-8 (for non-US-based
Publishers). Publisher payments will be withheld until the appropriate
taxation documents are received by VMM. If the required tax documents
are not on file with VMM within three months of the date of a scheduled
payment, VMM may charge a monthly administrative fee, representing VMM’s
cost of establishing and maintaining Publisher’s account, equal to 25%
of the original balance. All payments are based on actuals as defined,
accounted and audited by VMM. VMM reserves the absolute right to
withhold payment from accounts or Publishers that violate any of the
terms and conditions set forth herein. VMM will determine, in its sole
discretion, whether acts or omissions are deceptive, fraudulent or
violate this Agreement. Examples of such acts may include, without
limitation, Clicks without referring URLs, high numbers of repeat
Clicks, Clicks from non-approved root URLs, and fraudulent leads.
(b) Chargebacks. An Advertiser may apply, or VMM may apply, a debit to a
Publisher’s account in an amount equal to a payment previously paid or
credited to Publisher in circumstances of : (i) product returns; (ii)
duplicate entry or other clear error; (iii) non-bona fide transactions;
(iv) non-receipt of payment from, or refund of payment to, the User by
the Advertiser; (v) Publisher failure to comply with Advertiser’s
Program Terms or other agreement with Advertiser; or (vi) non-payment by
the Advertiser to VMM ("Chargeback"). Chargebacks may be applied to Your
Account at any time, including previous payment cycles. VMM shall have
no obligation to make payment to Publisher for which VMM has not
received payment from the relevant Advertiser of all monies due to VMM
(including for all amounts owed by such Advertiser to any of such
Advertiser’s Publishers). Publisher’s recourse for any earned payments
not paid due to Advertiser’s failure to pay VMM shall be to make a claim
against the relevant Advertiser(s), and VMM disclaims any and all
liability for such payment.
(c) Breach or Fraud. If Publisher violates this Agreement or Program
Terms, refuses to fulfill its responsibilities, or commits fraudulent
activity, VMM reserves the right to withhold payment and take
appropriate legal action.
(d) Calculation. Calculation of Publisher earnings shall be in VMM’s
sole discretion. In the event Publisher disagrees with any such
calculation, Publisher shall immediately send a written request to VMM
detailing, with specificity, Publisher’s concerns. Thereafter, VMM will
provide Publisher with an explanation or, if such calculation is
determined by VMM to be incorrect, an adjustment. VMM’s calculations
shall be final and binding.
10. Indemnity
Publisher is solely responsible for any legal liability arising out of
or relating to (i) Publisher’s Website(s); (ii) any material to which
Users can link through Publisher’s Website(s); and (iii) any consumer
and/or governmental/regulatory complaint arising out of any campaign
conducted by Publisher, including but not limited to any spam or fraud
complaint and/or any complaint relating to failure to have proper
permission to conduct such campaign to the consumer. Publisher shall
indemnify, defend, and hold harmless VMM and its officers, directors,
employees, agents, shareholders, partners, affiliates, representatives,
agents and Advertisers (collectively “VMM Parties”) harmless from and
against any and all allegations, claims, actions, causes of action,
lawsuits, damages, liabilities, obligations, costs and expenses
(including without limitation reasonable attorneys’ fees, costs related
to in-house counsel time, court costs and witness fees) (collectively
“Losses”) incurred by, or imposed or asserted against, the VMM Parties
which, if true, would constitute or relate to any claims, suits, or
proceedings for (a) libel, defamation, violation of rights of privacy or
publicity, copyright infringement, trademark infringement or other
infringement of any third-party right, fraud, false advertising,
misrepresentation, product liability or violation of any law, statute,
ordinance, rule or regulation throughout the world in connection with
Publisher’s Website(s); (b) any breach by Publisher of any duty,
representation or warranty under this Agreement or Program Terms; (c)
any breach by VMM of any duty, representation, or warranty to provide
Ads for placement on Publisher’s Website(s) due to any breach by
Publisher of this Agreement; (d) a contaminated file, virus, worm, or
Trojan horse originating from Publisher’s Website(s); or (e) gross
negligence or willful misconduct by Publisher.
11. Limitations of Warranties and Liability
(a) Disclaimer of Warranties. ALL SERVICES PROVIDED BY VMM ARE PROVIDED
ON AN “AS IS” “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMISSIBLE
PURSUANT TO APPLICABLE LAW, VMM MAKES NO WARRANTIES, GUARANTEES,
REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS, OR OTHER
INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN, OR OTHERWISE EXCEPT AS
EXPRESSLY SET FORTH HEREIN. VMM IS NOT RESPONSIBLE FOR DELAYS CAUSED BY
ACCIDENT, WAR, ACT OF GOD, EMBARGO, COMPUTER SYSTEM FAILURE, OR ANY
OTHER CIRCUMSTANCE BEYOND ITS CONTROL.
(b) Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL VMM BE LIABLE
TO PUBLISHER FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR
EXEMPLARY DAMAGES (EVEN IF VMM HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES), ARISING FROM ANY ASPECT OF THE ADVERTISING RELATIONSHIP
PROVIDED HEREIN. UNDER NO CIRCUMSTANCES SHALL VMM BE RESPONSIBLE FOR
ADVERTISER’S VIOLATION OF APPLICABLE LAW OR REGULATIONS, INCLUDING BUT
NOT LIMITED TO DECEPTIVE ADVERTISING OR CAN-SPAM. IN NO EVENT SHALL
VMM’S TOTAL OBLIGATIONS OR LIABILITY HEREUNDER EXCEED THE LESSER OF THE
SPECIFIC ADVERTISING CAMPAIGN IN QUESTION OR ONE THOUSAND DOLLARS
($1,000.00). REGARDLESS OF ANY LAW TO THE CONTRARY, NO ACTION, SUIT OR
PROCEEDING SHALL BE BROUGHT AGAINST VMM MORE THAN ONE (1) YEAR AFTER THE
DATE UPON WHICH THE CLAIM AROSE.
(c) Consideration. PUBLISHER ACKNOWLEDGES THAT VMM HAS AGREED TO PRICING
IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF
WARRANTIES AND DAMAGES SET FORTH HEREIN, AND THAT THESE CONSIDERATIONS
FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. PUBLISHER
AGREES THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY AND DISCLAIMERS
SPECIFIED IN THIS AGREEMENT WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE
FAILED OF THEIR ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE
EXCLUSION OF CERTAIN WARRANTIES OR LIABILITIES, SO SOME OF THE ABOVE
EXCLUSIONS MAY NOT APPLY TO PUBLISHER.
12. Term and Termination
(a) Termination. This Agreement, as may be amended, applies to Publisher
for as long as Publisher distributes Ads for VMM. VMM reserves the right
to terminate any Publisher from the VMM Network at any time, with or
without cause.
(b) Post-termination. Upon termination, Publisher agrees to immediately
remove from its Website(s) any and all VMM Code and Network IP supplied
to Publisher by VMM. Publisher will be paid, in the next scheduled
payment cycle following termination, all legitimate, non-fraudulently
accrued, earnings due up to the time of termination. If Publisher has
not reached the Minimum Payment Threshold, Publisher will be charged an
administrative fee representing VMM’s cost of establishing and
maintaining Publisher’s account; such fee to be any balance remaining in
Publisher’s account.
13. Confidentiality
Each party agrees that it may provide the other with information that is
confidential and proprietary to that party or a third- party, as is
designated by the disclosing party or that is reasonably understood to
be proprietary and/or confidential (“Confidential Information”). VMM’s
campaign rates are considered confidential. Each party may use
Confidential Information received from the other party only in
connection with and to further the purposes of this Agreement.
Confidential Information shall not be commingled with information or
materials of others and any copies shall be strictly controlled. The
receiving party agrees to make commercially reasonable efforts, but in
no case no less effort than it uses to protect its own Confidential
Information, to maintain the confidentiality of and to protect any
proprietary interests of the disclosing party. Confidential Information
shall not include (even if designated by a party) information: (i) that
is or becomes part of the public domain through no act or omission of
the receiving party; (ii) that is lawfully received by the receiving
party from a third-party without restriction on use or disclosure and
without breach of this Agreement or any other agreement without
knowledge by the receiving party of any breach of fiduciary duty; or
(iii) that the receiving party had in its possession prior to the date
of this Agreement. Upon termination of this Agreement, or upon written
request by VMM, Publisher must destroy or return to VMM any Confidential
Information provided by VMM under this Agreement.
14. Choice of Law and Attorneys’ Fees
These Terms and Conditions, the terms of the Programs and the
relationship contemplated thereby, shall be governed by the laws of the
United States and the State of Maryland, without giving effect to
principles of conflicts of law. Each party, to the extent permitted by
applicable law, hereby irrevocably and unconditionally (i) submits to
the general jurisdiction of the federal and state courts located in
Maryland; (ii) agrees that any action or proceeding concerning this
agreement will be brought exclusively in such courts; and (iii) waives
any objection that it may now or hereafter have to the venue of any such
action or proceeding in any such court or that such action or proceeding
in any such court was brought in an inconvenient court and agrees not to
claim or plead the same. (iv) A party that primarily prevails in an
action brought under this Agreement is entitled to recover from the
other party its reasonable attorneys’ fees and costs.
15. Entire Agreement and Modification
This Agreement together with applicable Program Terms, supersedes all
prior agreements or understandings between the parties and contains the
entire understanding and agreement of the parties and there have been no
promises, representations, agreements, warranties or undertakings by
either of the parties, either oral or written, except as stated in this
Agreement. This Agreement may only be altered, amended or modified by an
instrument that is assented to by each party to this Agreement by
verifiable means, including without limitation by written instrument
signed by the parties or through a “click through” acknowledgement of
assent. No interlineations to this Agreement shall be binding unless
initialed by both parties. Notwithstanding the foregoing, VMM shall have
the right to change, modify or amend (“Change”) this Agreement, in whole
or in part, by posting a revised Agreement at least five days prior to
the effective date of such Change. Publisher’s continued use of the VMM
Network after the effective date of such Change shall be deemed
Publisher’s acceptance of the revised Agreement. No change, amendment,
or modification of any provision of the Agreement by Publisher will be
valid unless set forth in a written instrument signed by an executive of
both parties with the corporate authority to do so.
16. Notice
Except as provided elsewhere herein, both parties must send all notices
relating to this Agreement to: (i) for VMM, via registered mail, return
receipt requested or via an internationally recognized express mail
carrier to: Viral Marketing Media Corp. , PO BOX 10174, Gaithersburg, MD
20898 USA,.
17. Assignment
No rights or obligations under this Agreement may be assigned by
Publisher without the prior written consent of VMM. Any assignment,
transfer or attempted assignment or transfer in violation of this
Section shall be void and of no force and effect. VMM and any of its
subsequent assignees may assign this Agreement, in whole or in part, or
any of its rights or delegate any of its duties, under this Agreement to
any party. This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective permitted successors and
assigns.
18. Independent Contractors
Each party is an independent contractor. Any intention to create a joint
venture or partnership between the parties is expressly disclaimed.
Except as set forth herein, neither party is authorized or empowered to
obligate the other or to incur any costs on behalf of the other without
the other party’s prior written consent.
19. Marketing
Publisher shall not release any information regarding campaigns,
creatives, or Publisher’s relationship with VMM or its Customers,
including, without limitation, in press releases or promotional or
merchandising materials, without the prior written consent of VMM. VMM
shall have the right to refer to its work for, and relationship with,
Publisher for marketing and promotional purposes, which includes use of
Publisher’s trademarks and logos on VMM’s collateral, sales material and
Websites. No press releases or general public announcements shall be
made without the mutual consent of VMM and Publisher.
20. Force Majeure
Neither party shall be liable by reason of any failure or delay in the
performance of its obligations hereunder for any cause beyond the
reasonable control of such party, including but not limited to
electrical outages, failure of Internet service providers, default due
to Internet disruption (including without limitation denial of service
attacks), riots, insurrection, acts of terrorism, war (or similar),
fires, flood, earthquakes, explosions, and other acts of God.
21. Survival and Severability
Any obligations which expressly or by their nature are to continue after
termination, cancellation, or expiration of this Agreement shall survive
and remain in effect after such happening. Each party acknowledges that
the provisions of this Agreement were negotiated to reflect an informed,
voluntary allocation between them of all the risks (both known and
unknown) associated with the transactions contemplated hereunder. All
provisions are inserted conditionally on their being valid in law. In
the event that any provision of this Agreement conflicts with the law
under which the Agreement is to be construed or if any such provision is
held invalid or unenforceable by a court with jurisdiction over the
parties to the Agreement, then (i) such provision will be restated to
reflect as nearly as possible the original intentions of the parties in
accordance with applicable law; and (ii) the remaining terms,
provisions, covenants, and restrictions of the Agreement will remain in
full force and effect.
22. Remedies and Waiver
Except as otherwise specified, the rights and remedies granted to a
party under this Agreement are cumulative and in addition to, not in
lieu of, any other rights and remedies which the party may possess at
law or in equity. Failure of either party to require strict performance
by the other party of any provision shall not affect the first party’s
right to require strict performance thereafter. Waiver by either party
of a breach of any provision shall not waive either the provision itself
or any subsequent breach.
23. No Publicity
Publisher may not make any mention of Viral Marketing Media or any Viral
Marketing Media client in any publicity materials advertising or
otherwise presenting information on your company and your services,
including without limitation listing Viral Marketing Media or any of its
clients in your customer lists, without the written consent of Viral
Marketing Media, whose consent may be withheld for any reason or for no
reason.
Publisher Network Agreement - Exhibit A
Email Campaigns
The following additional terms apply to all email campaigns conducted
under this Agreement.
1. Spam Policy
VMM has a strict policy against sending unsolicited commercial email (“UCE”),
commonly referred to as “Spam.” Publisher warrants and represents that
all email Ads delivered under this Agreement will be to permission-based
subscribers who either have (i) given Publisher (or a third-party)
express consent to allow Publisher to send them such email messages in
response to a clear and conspicuous request for such consent or at the
recipient’s own initiative; or (ii) with whom Publisher has a prior
business relationship; and the collection of such email addresses was in
full compliance with all applicable laws. VMM prohibits marketing to any
email addresses where a consumer has requested to “opt-out.” Any claims
against VMM from recipients of the email Ads that such email Ads
constitute UCE will be directed to Publisher and Publisher will make
reasonable efforts to satisfactorily resolve the issue with the
recipient. Publisher or its Sub-Publishers may be terminated from the
VMM Network if identified as a known spammer by a spam advocacy group,
including but not limited to being identified on the Register of Known
Spam Operations.
2. Email Lists
(a) All emails sent by Publisher under this Agreement shall be delivered
to Email Lists owned or managed solely by Publisher. Brokering
third-party deals to deliver Ads without disclosing such to VMM is
strictly prohibited and grounds for immediate termination, as well as
other legal remedies. To the extent VMM provides such consent, Publisher
will only provide Ads to entities who comply with the requirements of
this Agreement.
(b) Publisher is required and agrees to maintain at all times during the
term of this Agreement, and for a period of three years thereafter,
complete and accurate subscriber sign-up/registration data for every
subscriber to Publisher’s Email List(s). Publisher agrees that, within
24 hours of VMM’s request, it shall provide, at a minimum, the following
subscriber sign-up/registration data for any email address that
Publisher sends an email Ad to: (i) subscriber email address used to
sign-up/register for Publisher’s Email List; (ii) subscriber’s IP
address; (3) date and time of subscriber’s sign-up/registration for
Publisher’s Email List; and (iv) location of subscriber’s
sign-up/registration.
3. Campaign Preparation
(a) Before sending email Ads to its customers, VMM may request Publisher
to send test Ads of each email creative to its VMM account manager for
approval.
(b) Prior to Publisher sending email Ads to its customers under this
Agreement and regularly thereafter for active campaigns, VMM will
provide Publisher with its suppression file. Publisher will “scrub” its
Email List before mailing the email Ads to ensure that none of the email
addresses from either VMM’s or Publisher’s suppression files or from any
email addresses or domains posted by federal or state authorities for
which email may not be sent are sent in Publisher’s mailings to its
customers. Publisher may not use VMM’s suppression file for any other
purpose, will return such file after each “scrub” and certify that it
has not retained any copies of any portion of such suppression file.
4. Additional Publisher Warranties
Publisher (and its Sub-Publisher’s) represents and warrants that (i) it
will fully comply with the privacy policy posted on Publisher’s
Website(s), as well as all applicable laws regulating commercial email,
including but not limited to the CAN-SPAM Act of 2003 and any applicable
state registry laws; (ii) it will not send any email Ads with false,
deceptive or misleading e-mail header information (including, without
limitation, source, destination, IP address, routing information, FROM
lines or SUBJECT lines); (iii) any and all email Ads sent by Publisher
shall accurately identify Publisher or Advertiser as the sender of the
email and shall include a valid, working return email address and
physical address for recipients to respond to Publisher; (iv) any and
all email Ads sent by Publisher shall include a clear, conspicuous, easy
to use, “opt-out” method for email recipients to opt-out of receiving
additional emails from Publisher; (v) it will not send any email Ads
using a subject line that has not been approved by VMM or Advertiser for
use with that particular Creative; (vi) it will only send to United
States email addresses for which a message to such address would not
constitute a mobile service message as defined by the CAN-SPAM Act of
2003; (vii) it will not send any Ads via newsletters or other emails
having multiple Advertisers without having clear opt-out procedures for
each Advertiser and Initiator as defined under the CAN-SPAM Act; (viii)
Regularly scrub its database against any opt-out or unsubscribe list
provided by VMM (the “Suppression List”) and shall not at any time send
any commercial e-mails to any individuals on the Suppression List to the
extent that VMM provides an opt-out or unsubscribe list to Publisher in
connection with any Program; each Suppression List, and all versions
thereof, shall be considered Confidential Information at all times and
the proprietary property of VMM; (ix) it will provide a valid, working
unsubscribe link in each email that will remove all email addresses from
requesting users from Affiliate’s email lists within two business days,
and maintain accurate, up-to-date records of all such requests; (x) it
will not send Ads for products or services that are illegal for minors
to buy, possess or participate in, to a minor or any address registered
with any state email registry; and (ix) it will post on its Websites its
privacy and anti-spam policies and adhere to such policies.
5. Remedies
(a) Publisher recognizes that a breach of Sections 1, 3(b), or 4 could
result in immediate, extraordinary and irreparable damage to VMM and/or
its Advertisers and that such damages may be difficult to measure.
Accordingly, Publisher agrees that should it violate these provisions,
VMM may in addition to other legal remedies, terminate this Agreement
immediately without pay and assess liquidated damages of up to $2,500.00
per occurrence of each such violation. Publisher further agrees that
such liquidated damages are reasonable and do not constitute a penalty.
(b) Publisher shall indemnify and hold VMM harmless for any Losses
arising out of any breach of this Exhibit A pursuant to Section 10 of
the Agreement.
Notice
Any notice, communication or statement relating to these Terms and
Conditions shall be in writing and deemed effective: (i) upon delivery
when delivered in person; (ii) upon transmission when delivered by
verified facsimile transmission or verified e-mail; or (iii) when
delivered by registered or certified mail, postage prepaid, return
receipt requested or by nationally-recognized overnight courier service
to (a) Publisher at the address provided in the registration, and (b)
Viral Marketing Media Corp. at PO BOX 10174, Gaithersburg, MD 20898, fax
no.: (815) 550-1746. IN WITNESS WHEREOF, the Parties have executed this
Agreement as of the date executed by us.
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