TERMS AND CONDITIONS
1. ADVERTISING AGREEMENT:
OnlineTrafficBroker.com ("the Company") agrees to incorporate the Advertiserís links, graphics or other content (collectively, the "ads") into websites and/or mailings owned and/or produced by the Company, as specified in the attached Insertion Order ("IO"). The IO, together with these Terms and Conditions constitute a single Agreement and are referred to hereafter collectively as the "Agreement").
"CPA" means cost per acquisition.
"CPC" means cost per clickthrough.
"CPM" means cost per thousand.
"Flat Rate" means a flat charge for the total number of ads run or delivered, as specified in Insertion Order.
"Run of Network" means that Company may place Advertiserís ads on any website or email publication owned and/or produced by Company.
3. CONTENT OF ADVERTISEMENTS:
When requested by Company, Advertiser shall provide the specific text, URLs and images to be used in the ads, including all Advertiser trademarks and registration notices. Company will exercise commercially reasonable efforts to implement Advertiserís trademark notices and will not contest Advertiserís rights in its trademarks. Advertiser shall respect Company's rights in its trademark. Company will otherwise determine the look and feel, placement and click routines of Advertiser's ad placements used pursuant to this Agreement. Company reserves the right to optimize this campaign by changing positions to better performing positions, if necessary. The Company will track the click-through performance of all advertisements. In order to accomplish this, URLs may be redirected by the Company.
4. PAYMENT TERMS:
a) For all campaigns:
Advertiser agrees to remit payments to Company as specified on the attached Insertion Order. Company will bill Advertiser within the first week of each month, and Advertiser agrees to pay each invoice within 30 days of receipt or as stated above. Late payments shall accrue interest of 1.5% per month until paid in full. All amounts shall be paid promptly and in full without offset. Agencies or other third parties are responsible for payment, whether or not Agency has received payment from Advertiser. Unless Company receives written objection via Federal Express or other traceable courier service or via electronic mail, receipt confirmed within 15 days of the invoice date, the invoice shall be conclusive as to accuracy and shall constitute an account stated. Company reserves the right to cancel upon default in payment according to these terms, at which time all amounts due pursuant to this Agreement shall be immediately due and payable on Company's invoice date.
b) Campaign-specific terms
i) for CPA campaigns: Advertiser shall remit payments to Company for each valid acquisition. Unless expressly stated to the contrary in the "Notes" section of the IO, an "acquisition" means a request to use an Advertiser's service through registration and/or download. Unless expressly stated in the "Notes" section of the IO, all other membership requests will be linked directly to Advertiser's URL. "Duplicate acquisitions" mean identical membership requests received by Company and transmitted to Advertiser. Advertiser is not required to pay for duplicate acquisitions. Advertiser is also not required to pay for any acquisitions associated with email addresses which are invalid (i.e. an address to which Advertiser is unable to successfully deliver a single initial newsletter or other mailing after three (3) attempted electronic mailings).
ii) for CPC campaigns: Advertiser agrees to pay Company the amount stated on the IO for each clickthrough. A "clickthrough" is an email address or IP address which accesses Advertiserís website through any ad placed by Company on any Company website or mailings pursuant to this Agreement. Unless expressly stated otherwise on the "Notes" section of the IO, Advertiser will be invoiced and agrees to remit payments according to clickthroughs registered by Companyís tracking system.
iii) for CPM campaigns: Advertiser agrees to pay Company the amount stated on the IO for each thousand ads delivered, whether by mailings, banner advertisements or as otherwise specified on the IO.
iv) for flat rate campaigns: Advertiser agrees to pay Company the amount stated on the IO for the number of ads to be delivered, whether by mailings, banner advertisements or as otherwise stated on the IO.
a) for CPA campaigns: When submitting monthly payments pursuant to paragraph 4 above, Advertiser shall provide Company with a report detailing all acquisitions received, the number of duplicate and/or invalid actions, \ and the reason(s) for deeming each such actions invalid.
b) for CPC campaigns: Unless expressly stated otherwise in the "Notes" section of the IO, as requested and upon written notice, Company will make available to Advertiser a weekly report for each set of click throughs generated during the previous week. Upon Company's request, Advertiser shall provide Company with a report detailing all click throughs received, and the reason(s) for deeming each such click through, if any, invalid. Advertiser is requested to place Companyís pixel on site if a target CPA is desired.
The term of the Agreement is as stated in the Insertion Order.
Either party may terminate this Agreement with 48 hours notice. Upon termination of this Agreement by Company for any breach by Advertiser, all amounts due and payable under this Agreement by Advertiser to Company shall be immediately paid to Company. Notwithstanding any other provision of this Agreement, the provisions regarding Company limitations on liability, both partiesí obligations of confidentiality, and Advertiserís indemnification obligations shall survive the termination of this Agreement.
8. REPRESENTATIONS AND WARRANTIES:
Advertiser hereby represents and warrants to Company that (a) the use, reproduction, distribution, or transmission of the ads and all content contained therein provided by Advertiser shall not violate any applicable laws or regulations or any rights of any third parties, including, but not limited to, such violations as infringement or misappropriation of any copyright, patent, trademark, trade secret, music, image, or other proprietary or property right, false advertising, unfair competition, defamation, invasion of privacy or rights of celebrity, violation of any antidiscrimination law or regulation, or any other right of any person or entity; and (b) Advertiser has full power and authority to enter into this Agreement, to carry out its obligations under this Agreement and to grant the rights granted to Company hereunder. Company hereby represents and warrants to Advertiser that it has full power and authority to enter into this Agreement, to carry out its obligations under this Agreement and to grant the rights granted hereunder.
Company makes no warranties as to the level of sales or purchases the Advertiser can expect from the memberships generated by Company's performance of this agreement or any other business results to be obtained by Advertiser from this Agreement and Advertiser assumes all business risks.
EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, COMPANY MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES WHICH ARE PROVIDED "AS IS" BY COMPANY HEREUNDER, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WHICH ARE DISCLAIMED BY COMPANY. SPECIFICALLY, ADVERTISER ACKNOWLEDGES AND UNDERSTANDS THAT THE INTERNET IS AN EVOLVING MEANS OF COMMUNICATION AND THAT COMPANY MAY ENCOUNTER TECHNICAL OR OTHER DIFFICULTIES BEYOND ITS CONTROL.
9. LIMITATIONS OF LIABILITY:
COMPANY WILL NOT BE LIABLE FOR INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES (OR ANY LOSS OF REVENUE, PROFITS, OR DATA) ARISING IN CONNECTION WITH THIS AGREEMENT OR THE PROGRAM, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, COMPANY'S AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT AND THE PROGRAM WILL NOT EXCEED THE TOTAL AMOUNT OF PAYMENTS MADE BY ADVERTISER TO COMPANY PURSUANT TO THIS AGREEMENT. COMPANY SHALL HAVE NO RESPONSIBILITY FOR FAILURES DUE IN WHOLE OR IN PART TO ACTS OR OMISSIONS, ADVERTISERS OR USERS OR DUE TO FAILURES OF OR DEFECTS IN THIRD PARTY HARDWARE, SOFTWARE OR COMMUNICATIONS SYSTEMS. THE LIMITATIONS IN PARAGRAPHS 8 AND 9 REPRESENT A VOLUNTARY AND MUTUALLY AGREED ALLOCATION OF RISK AND RESPONSIBILITY IN A REASONABLE MANNER HAVING DUE REGARD TO THE RATES AND PRICES CHARGED BY COMPANY.
a. Advertiser is solely for any legal action legal liability arising out of or related to: (i) i) the content and other material set forth in the Advertiserís Website and Email publication(s) and/or (ii) any content or material to which users can link through the Advertiserís Website and Email publication(s). Advertiser hereby agrees to indemnify, defend and hold harmless OnlineTrafficBroker.com and its officers, directors, agents, affiliates and employees from and against all claims, actions, liabilities, losses, expenses, damages, and costs (including, without limitation, reasonable attorneysí fees) that may at any time be incurred by any of them by reason of any claims, suits or proceedings (a) for libel, defamation, violation of right of privacy or publicity, copyright infringement, trademark infringement, spam, or aiding or assisting in the transmission of spam 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 the Publisherís Website and Email publication(s); (b) arising out of any material breach by Advertiser of any duty, representation or warranty under any agreement with OnlineTrafficBroker.com; or (c) relating to a contaminated file, virus, worm, or Trojan horse originating from the Advertiserís Website and Email publication(s).
The parties agree for the term of this Agreement and for a period of one year thereafter to keep confidential and not disclose to third parties the business terms related to this Agreement, including but not limited to all information regarding Companyís business, marketing, and rates and payments made by Advertiser to Company, unless and until Company makes these generally available to the public, and Advertiserís business plans (ad content, media buy and schedule), unless and until publication thereof.
12. RIGHTS RETAINED
Both parties retain ownership of and all rights in their respective trademarks and service marks.
13. FORCE MAJEURE:
Company shall not be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, riots, acts of government, shortage of materials or supplies, failure of transportation, communications or computer systems or any other cause beyond the reasonable control of such party; provided that Company gives Advertiser written notice thereof within ten (10) working days of any such event or occurrence and resumes performance as soon as possible.
Neither party may assign this Agreement absent the prior written consent of the other party. Notwithstanding the foregoing, Company has the right to assign this Agreement to any affiliate or other acquirer of all or of substantially all of its equity securities, assets or business relating to the subject matter of this Agreement, or pursuant to any internal re-organization in the sole discretion of Company. Subject to the foregoing, this Agreement will benefit and bind the parties' successors and assigns.
15. INDEPENDENT CONTRACTOR
This Agreement does not constitute and shall not be construed as constituting an agency, partnership or joint venture between Company and Advertiser. Neither party shall have the right to act on behalf of or to contractually obligate or bind the other in any manner whatsoever. Each party acknowledges that all services performed by it or its employees hereunder shall be as an independent contractor.
This Agreement, and any dispute which may arise hereunder, shall be governed by and subject to the laws of the State of California. Any disputes arising hereunder shall be submitted to the courts of the State of California. Should any part of this Agreement be found to be illegal or otherwise unenforceable, both parties shall continue to be bound under the remaining parts of the Agreement, if the purpose and intent of the Parties can be carried out under the remaining parts of the Agreement. This Agreement shall constitute the entire understanding between the Parties, and supersedes all prior negotiations or understandings between the Parties concerning the subject matter contained herein. In the event any of the terms and conditions of this insertion order conflict with any other agreements, written or verbal, then the terms set forth in this insertion order will govern all other agreements.