These Terms of Service (this “Agreement”) govern Publisher’s relationship with ValidClick, Inc., a Missouri corporation.
1. Term: One (1) year from the Effective Date, with automatic renewals for subsequent one year periods, provided, however, either party may cancel this Agreement without penalty twenty-four (24) hours after giving written notice of termination to the other party. Publisher shall not have any remedy against ValidClick based on or arising out of ValidClick’s termination of this Agreement, and termination of this Agreement by ValidClick shall be without prejudice to the rights of ValidClick accrued at the date of such termination.
2. Effective Date: Upon Publisher’s acceptance.
3. Publisher’s Offerings: This Agreement covers top level domains or web or mobile applications owned or operated by Publisher and approved by ValidClick (“Publisher’s Offerings”).
4. Supplied Content: The following types of content may be supplied content under this Agreement (the “Supplied Content”), pending written approval by ValidClick.
5. Implementation: Publisher shall implement the Supplied Content in accordance with ValidClick’s specifications for the format, presentation, display and placement as described in the implementation documentation provided in the online ValidClick Publisher Center or provided via email, and otherwise in accordance with this Agreement. Publisher’s use of the Supplied Content is subject to ValidClick’s prior and continued approval, in its sole discretion, and Publisher’s continued compliance with this Agreement. In order to make use of Supplied Content on a given Offering, Publisher must first submit each new Offering in the manner required by ValidClick and implement the services offered and provided hereunder on the Publisher’s Offerings according to any Implementation Instructions, a set of rules for implementing the Supplied Content which shall be available in the ValidClick Publisher Center or emailed to Publisher and which may be changed from time to time, and any other specifications and directions provided by ValidClick from time to time. ValidClick may change the criteria for use of the Supplied Content at any time, in its sole discretion. If Publisher makes material modifications to an approved Offering, it must re-submit the Offering for approval. Displaying Supplied Content on a modified Publisher Offering shall be treated the same as displaying said Supplied Content on an unapproved offering.
6. Representations And Warranties: Publisher represents and warrants to ValidClick that: (a) this Agreement is executed by a duly authorized representative of Publisher; (b) Publishers has full capacity and authority and all necessary licenses, permits and consents (including, where the circumstances and procedures so require, the consent of a parent company) to enter into and to perform this Agreement and shall maintain the same during the term of the Agreement; (c) Publisher is not insolvent or unable to pay its debts, no order has been made or petition presented or resolution passed for your winding up or for an administration order and no receiver, administrative receiver or administrator or manager has been appointed by any person for the business or assets or any part thereof nor has any equivalent event taken place; (d) the Publisher’s Offerings: (i) are managed by Publisher, (ii) comply with and do not violate any applicable law or regulation or codes of practice (including, but not limited to, data protection legislation), (iii) do not infringe in any manner any intellectual property of any third party whether registered or not or registrable or not (including, but not limited to, copyright, database rights, patent, trade mark, trade secret or other intellectual property right), (iv) do not breach any duty towards or rights of any person and have not otherwise resulted in any consumer fraud, product liability, tort, breach of contract, injury, damage or harm of any kind to any person, (v) are not false or misleading, and (vi) do not libel, defame, cause injury to, invade the privacy of or otherwise infringe or violate the rights of any person or third party; and (e) Publisher shall comply in all respects with this Agreement including, for the avoidance of doubt, (i) the Rules and Policies found in the ValidClick Publisher Center, and (ii) shall only implement the Supplied Content via the Implementation Instructions.
7. Exclusivity: ValidClick shall be the exclusive supplier of Supplied Content (as defined in paragraph 4) on Publisher’s Offerings. Publisher shall not display, link to, or permit any third party to display or link to Supplied Content on Publisher’s Offerings, other than content supplied under this Agreement.
8. Compensation Subject to compliance with the terms and conditions of this Agreement, including, but not limited to Sections 5 and 6 hereof, ValidClick shall pay Publisher a revenue share agreed upon in writing signed by ValidClick or if no such writing exists a rate that is no less than 40% of Source Gross Revenue within 60 days after the end of the calendar month in which such amounts were incurred. Payments shall be in US Dollars.
ValidClick has no obligation to make any payment in any period where the total due Partner is less than $250; ValidClick may hold such payments due Publisher until the amount due Publisher hereunder exceeds $250 and will remit such amount upon the next scheduled payment date. ValidClickshall have no obligation for any payments earned through invalid activity (which shall include but not be limited to: (i) click throughs on Supplied Content which are deemed by ValidClick to be invalid, including where such click throughs are deemed invalid by ValidClick or its partners. security and protection protocols; (ii) anything connected or relating to ValidClick’s determination that a click through is in contravention of Section 6 of these Terms and Conditions; and/or (iii) click throughs executed through any device (including any program, software, system or method) whether electronic or otherwise that executes searches or click throughs that were not initiated by bona fide Internet Users, as determined by ValidClick in its sole discretion, ValidClick shall have no obligation to make any payment to the extent that any elements of any payment relates to: (i) payments in respect of which ValidClick has not itself received payments from relevant third parties; or (ii) payments which represent net adjustments downwards for whatever reason to payments made by third parties to ValidClick (or withheld from payments due to ValidClick) including, but not limited to, for poor traffic quality and/or conversions, goodwill credits, and promotional credits. In its sole and absolute discretion and without limiting any other legal remedies available to it, ValidClick may withhold a relevant portion of any payment to Publisher, in an amount determined by ValidClick in its reasonable discretion, (i) while it investigates the validity of clicks delivered by Publisher under this Agreement, (ii) as a reserve against chargebacks for up to 120 days after termination of this Agreement for any reason, or (iii) to offset any portion of any payment previously received by Publisher in contravention of this Agreement. ValidClick and its partners monitor all activity closely and maintain a zero-tolerance policy for fraud. Any activity that is deemed suspicious will be fully investigated. Fraudulent activity may lead to the immediate suspension of the Publisher account, and without limiting any other potential legal action, forfeiture of all unpaid payments due hereunder. Additionally, all revenue generated via a Publisher’s Offerings that is found by ValidClick to have engaged in past fraudulent transactions will be completely reversed. Any Publisher found to have misled ValidClick with regard to how Supplied Content is implemented on Publisher’s Offerings may have their account suspended and will forfeit any unpaid payments due hereunder.
9. Source Gross Revenue: Source Gross Revenue means amounts reported and paid by advertisers either directly to ValidClick or an advertising network partner of ValidClick (“Source Providers”) for validated clicks on ads generated from the Publisher’s Offerings pursuant to this Agreement and collected by ValidClick.
10. Below Average Conversion Rate: If the Publisher’s click validity score index or advertiser conversion rate from paid content displayed by Publisher falls thirty percent (30%) or more below the ValidClick network average, ValidClick shall have the right to terminate this Agreement upon twenty-four (24) hour written notice to Publisher.
11. Source Provider as Third Party Beneficiary: Publisher acknowledges that Source Providers are relying on this Agreement. Source Providers shall be entitled to enforce the provisions of this Agreement with Publisher as they pertain to such content provider, as a third party beneficiary of such agreement.
12. Governing Law: Any suit, action or proceeding with respect to this Agreement must be brought to the courts of the State of Arkansas, County of Faulkner, or in the United States District Court, Eastern District of Arkansas, Western Division (“Courts”). ValidClick, in its sole discretion may elect, and Publisher irrevocably submits to, the jurisdiction of the Courts for the purpose of any such suit, action or proceeding. Publisher irrevocably waives any objections which Publisher may now or hereafter have to venue of any suit, action or proceeding arising out of or relating to this Agreement brought in the Courts, and further irrevocably waives any claim that any such suit, action or proceeding brought in any such court has been brought in any inconvenient forum. Any action or proceeding by Publisher against Invuo can only be initiated in one of the Courts.
13. Indemnification: Publisher shall defend and/or settle, and pay damages awarded pursuant to, any third party claim brought against ValidClick, which alleges facts that would constitute a breach of any warranty, representation or covenant made by Publisher under this Agreement or are related to Publisher’s breach of a material obligation under this Agreement; provided that ValidClick promptly notifies Publisher in writing of any such claim, promptly tenders the control of the defense and settlement of any such claim to Publisher (at Publisher’s expense and with Publisher’s choice of counsel), and cooperates fully with Publisher (at Publisher’s request and expense) in defending or settling such claim, including but not limited to providing any information or materials necessary for Publisher to perform the foregoing. Publisher will not enter into any settlement or compromise of any such claim without ValidClick’s prior consent, which shall not be unreasonably withheld.
14. Press Release: Publisher may not issue any press release or other public statements regarding this Agreement. Notwithstanding the prior sentence, ValidClick may in its discretion permit such a press release or public statement, but such consent must be by an authorized person of ValidClick and must be in writing. The failure to obtain the prior written approval of ValidClick shall be deemed a material non-curable breach of this Agreement, whereby ValidClick may terminate this Agreement immediately following written notice to Publisher.
15. Limitation of Liability: VALIDCLICK WILL NOT BE LIABLE FOR ANY LOST PROFITS OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES FOR LOST DATA, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO CONTRACT, PRODUCTS LIABILITY, STRICT LIABILITY AND NEGLIGENCE, AND WHETHER OR NOT SUCH PARTY WAS OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN NO EVENT WILL VALIDCLICK’s LIABILITY ARISING OUT OF THIS AGREEMENT EXCEED THE NET AMOUNT PAID OR PAYABLE TO PUBLISHER UNDER THIS AGREEMENT DURING THE SIX MONTHS PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.
16. Disclaimer of Warranties: VALIDCLICK IS NOT RESPONSIBLE FOR ANY CONTENT TO BE PROVIDED HEREUNDER OR FOR ANY SITES THAT CAN BE LINKED TO OR FROM THE CONTENT. VALIDCLICK MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, AND NONINFRINGEMENT. Furthermore, ValidClick makes no representation or warranty to Publisher that the performance of its obligations under this Agreement will produce any level of payment or profits.
17. Change in Control: ValidClick may terminate this Agreement immediately without liability upon the existence of a Change of Control by Publisher. .Change of Control. means (a) a merger, consolidation or other reorganization to which Publisher is a party, if the individuals and entities who were stockholders (or partners or members or others that hold an ownership interest) of Publisher immediately prior to the effective date of the transaction have .beneficial ownership. (as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended) of less than eighty percent (80%) of the total combined voting power for election of directors (or their equivalent) of the surviving entity following the effective date of the transaction, (b) acquisition by any entity or group of direct or indirect beneficial ownership in the aggregate of then issued and outstanding securities (or other ownership interests) of Publisher in a single transaction or a series of transactions representing in the aggregate twenty percent (20%) or more of the total combined voting power of Publisher, or (c) a sale of all or substantially all of Publisher’s assets. Publisher will not assign or transfer any Publisher’s Offerings to any entity wholly or partially owned by, controlled by or under common ownership or control with Publisher without requiring that entity to enter into one of the following, at ValidClick’s request: (a) an amendment to this Agreement adding that entity as a party, or (b) a separate agreement containing terms substantially similar to this Agreement.
18. Authority: Publisher warrants that it has full power and authority to execute and be fully bound by the terms of this Agreement and will continue to be for the length of Term.
19. Force Majeure: Neither party shall be liable in damages or have the right to cancel or terminate this Agreement for any delay or default in performance if such delay or default is caused by unforeseen conditions beyond the reasonable control of the delaying or defaulting party, including acts of God, restrictions by a government authority, wars, revolutions, strikes (other than any strike by the delaying or defaulting party’s employees), fires, floods, earthquakes, embargoes, or degradation of telephone or other communications services or servers, including but not limited to, degradation of all or part of an Internet backbone.
20. Confidential Information: The terms of this Agreement and information disclosed by ValidClick to Publisher are deemed Confidential Information. Such information includes without limitation all know-how, business processes, source code, algorithms, object code, click and performance data, technology, and information related to this Agreement. Publisher agrees (a) not to disclose any Confidential Information to any third parties, (b) not to use any Confidential Information for any purpose except to exercise rights and carry out responsibilities under this Agreement, (c) keep Confidential Information confidential using reasonable care.
21. Miscellaneous Terms and Conditions: This Agreement and Addendum constitutes the entire agreement between the parties with respect to the subject matter hereof. This Agreement and Addendum supersedes, and the terms of this Agreement govern, any other prior or collateral agreements with respect to the subject matter hereof.
22. Changes to Agreement: ValidClick may modify the terms of this Agreement at its sole discretion from time to time. ValidClick shall post the amended terms in the ValidClick Publisher Center and they shall be binding immediately after they are posted and any use of the Supplied Content after such date shall be subject to the amended terms. This Agreement may not otherwise be amended, except in writing signed by both parties.
Content supplied by ValidClick under this Agreement may include content from Source Providers, including Yahoo Search Marketing (“YSM”). Source Providers require that publishers agree to the following additional terms, unless any such requirement is waived in writing by ValidClick:
1. Publisher will implement all links and results as shown in the mockups.
2. A Publisher’s Website domain must be approved in writing by ValidClick before Paid Search Results, SearchLinks or Non-Paid Search Results can be displayed on the domain.
3. Publisher will display the “sponsored listings” or “sponsored results” headings shown in the mockups (or any labels, headings or notices provided by ValidClick or required by law).
4. Publisher will display all Paid Search Results and Non-Paid Search Results on the next webpage displayed to a user after a query, with no interstitial content, at the same time as it displays the other content on that webpage. Publisher will not cache results.
5. Publisher will display results in the order provided by ValidClick.
6. Publisher will not truncate the full titles, descriptions and URLs provided by ValidClick and will not modify any part of the results. Publisher will display results in the language provided by ValidClick.
7. Publisher will not request results by any means except the links and will not place links on any website, software application or email except for the domains listed in Paragraph 4 of the Agreement as Publisher’s Offerings. Publisher will use commercially reasonable efforts to enable all of its users to access and use the links and results and to deliver all queries to ValidClick every time a user enters a search into a search box or a directory search by a hyperlink.
8. Publisher will implement any reasonable technical requirements requested by ValidClick.
9. Max Queries are equal to 130% of the average number of queries sent by the Publisher in the prior seven day period. The queries from Publisher will not exceed Max Queries. If Publisher exceeds Max Queries, ValidClick may suspend services until the number of queries drops below Max Queries. If Publisher anticipates a significant increase in Max Queries, it may give notice to ValidClick of such, and ValidClick shall use reasonable efforts to accommodate the increase.
10. Publisher will implement search query boxes on all pages within Publisher’s Offerings.
11. If requested by Publisher, only Paid Search Results may be delivered to the Publisher.
12. Publisher acknowledges that Source Providers, including YSM, are relying on this Agreement. Source Providers shall be entitled to enforce the provisions of this Agreement with Publisher as they pertain to such content provider, as a third party beneficiary of such agreement. The Publisher acknowledgement that such Source Providers may terminate Publisher’s ability to receive their results on 24 hours notice, for any reason or no reason.
13. The Publisher agrees that it will not assign any right to or syndicate the Supplied Content provided by Validclick.
14. ValidClick shall be the exclusive supplier of Supplied Content on Publisher’s Offerings. Publisher shall not display, link to, or permit any third party to display or link to Supplied Content on Publisher’s Offerings, other than content supplied under this Agreement.
15. Abuse of Services. Unless specifically allowed in this Agreement, Publisher will not authorize, permit, enable or engage in any of the following:
(a) Queries or clicks generated by any automated or fraudulent means;
(b) Queries or clicks on results generated by misleading or incented means, including: (i) blind links (where users do not know that they will be performing a query or clicking on a Result); (ii) requiring a user to search or click in order to receive some other benefit, obtain some other result or perform another function (such as leaving a webpage or closing a window); (iii) pre-populating the search box; (iv) Publisher, its employees, contractors or agents clicking on the results except in the course of normal individual use; or (v) offering a user any inducement of any kind to search or click on the results;
(c) Unauthorized implementations, including: (i) use, display, syndication, sublicensing or delivery of the links, results or Marks anywhere other than on Publisher’s Offerings; (ii) links placed on or Queries from or after 404 or other error messages; (iii) Queries from, or displays of results or links within pop-over or pop-under windows, in or through a downloadable application, or in or through an email; or (iv) using a software application that is downloaded to users’ computers to drive traffic to any website on which links or results appear unless the application has been formally approved by ValidClick;
(d) Sending queries from users outside the acceptable territories, a list of which shall be provided by ValidClick upon request, unless ValidClick provides Publisher with written permission to do so, or masking the true user agent or IP address of a user;
(e) Adding, deleting or changing terms or characters of a query;
(f) Display of anything (such as pop-up windows or expanding banners) that may obscure any portion of the links or the results or stripping, blocking, or filtering results by any means or in any way preventing or inhibiting the display of results in whole or in part; or
(g) Installing any program on a user’s computer or replacing a user’s home page, without the user’s express and informed prior consent.
16. If Publisher violates any provision of this Addendum, then ValidClick may terminate the Agreement immediately upon notice to Publisher.
17. If Publisher generates any revenue while in violation of any requirement of this Addendum, ValidClick reserves the right to exclude, or request back, such revenue from its calculation of any amounts owed to Publisher.
Requirements for Affiliate Sites
• Each affiliate site (hereafter referenced as “the site”) must contain substantial content other than ads and navigational links. Non-content or minimal-content pages, such as proxy sites or error pages, are not acceptable.
• The site must have a professional look and feel, be easy to use and navigate, and not contain broken links or missing images.
• The site must conspicuously display accurate contact information – name, address, phone number and email address.
• The site, including the domain name, must not violate any 3rd party trademarks or IP rights.
• The site’s domain name may not contain misspellings, excessive dashes, or meaningless characters outside of normal branding.
• The site may not acquire traffic through the use of adware, spyware, or changes made to users’ settings without users’ explicit and informed consent.
• The site may not engage in arbitrage. For the purposes of clarity and without limitation, arbitrage includes the purchasing of traffic by or for partners or affiliates with the intent of directing users to web pages where ValidClick sponsored results are the most prominent page element.
• The affiliate may not engage in sub-syndication or provide feed data to any other party.
• The site may not actively encourage users to click on sponsored results.
• The site may not provide incentives, monetary or otherwise, to the user to search without express written consent from ValidClick.
• The site does not feature substantial unmoderated user-generated content.
• Affiliate sites containing sexually explicit content must use an X-rated feed.
• The site may not change user preferences or reset default home pages without the user’s informed consent, resize browser windows, disable back buttons, or otherwise interfere with a user’s ability to navigate.
• The site may not attempt to install software or ActiveX controls without clear, appropriate notice and user consent.
• The site may not cache sponsored results.
• The sites may not forward, mask, or cloak URLs or engage in deceptive practices.
o Cloaking: Presenting content to a search engine crawler that is materially different from that presented to a user’s browser.
o Masking: Displaying in the user’s address bar a URL different from that of the page being visited.
o Forwarding: Redirecting users to a different domain or URL.
• The site may not offer or promote any of the following:
o Any product or service from countries subject to U.S. trade sanctions or embargo
o Banned substances, such as ephedra or ma huang
o Bulk marketing products or services if the stated or implied use of the product is unsolicited spam
o Collection (as primary purpose) of personally identifiable information to be used for consumer or promotional marketing, or related purposes
o Content of questionable legality (e.g. falsely obtained passwords, pyramid schemes, evading traffic tickets)
o Controversial content (e.g. hacking/cracking, advocating or glorifying suffering and violence)
o Copyright infringement facilitation
o Defamatory, libelous, threatening or other material that advocates against any individual or entity
o Distribution of viruses, malware, spyware, or other unsafe downloads
o Fake IDs, fake diplomas, or education transcripts
o Fireworks and explosives
o Excessive, duplicate or competing advertisements
o Extreme adult content
o Hacking, surveillance, interception or descrambling equipment and techniques
o Online gambling
o Pay-to-click offers
o Promotion, sale or facilitated sale of:
o Academic paper-writing services and the sale of pre-written essays, theses and dissertations
o Alcoholic beverages
o Body parts or bodily fluids
o Counterfeit, fake or bootleg products, or replicas or imitations of designer products
o Government IDs or police items
o Hazardous substances
o Products, services or methods of removing items from a user’s credit report
o Tobacco and tobacco-related products, including electronic cigarettes
o Weapons of any kind, including: firearms, their integral parts and ammunition, military ordnance and grenades, knives marketed as weapons, other weapons such as metal knuckles, clubs, leaded canes, and the provision of “how-to” materials
o Prescription, Schedule I and Schedule II drugs (Sponsored Search and Content Match implementations)
o Prostitution and escort services
o Recreational drugs and drug paraphernalia, including products or information related to “beating” a drug test
o Vulgar and obscene content