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: