By accepting these Publisher Terms (this "Agreement") and establishing an online account (the "Account") with Content.ad, a division of Broadspring, Inc. ("Content.ad"), the publisher establishing the Account ("Publisher" or "you") acknowledges and agrees that it is forming a valid and binding agreement between Content.ad and the Publisher.
This Agreement governs Publisher's use of the Content.ad Widget (as defined below). Publisher must agree to this Agreement in order to use the Content.ad Widget or establish an Account. If Publisher uses the Content.ad Widget, establishes an Account and/or clicks to sign in and/or agree to this Agreement when presented, Content.ad will understand this as Publisher's acceptance of this Agreement and its agreement to all of the terms and conditions set forth herein. If you are accepting this Agreement on behalf of Publisher, you represent and warrant that you have full legal authority to bind Publisher to this Agreement. If you do not have such authority, then you may not use the Content.ad Widget or the Account on behalf of Publisher and you must discontinue all use of the Content.ad Widget immediately. This Agreement is effective as of the effective date set forth below (the "Effective Date").
NOW, THEREFORE, for good and valuable consideration, the receipt of which is hereby acknowledged, Content.ad and Publisher hereby agree as follows:
Content.ad is a provider of an advertising network (the "Content.ad Network") whereby it manages the placement of advertisements made available on websites and/or software applications via its proprietary software and API (the "Content.ad Widget").
Publisher desires to use the Content.ad Widget on the Publisher Websites designated from time to time within the Account (and the underlying web pages therein) (collectively, the "Publisher Websites") so as to enable visitors to the Publisher Websites to view the advertisements made available via the Content.ad Network.
You represent that you are an adult and have the legal capacity to enter into a contract in the jurisdiction where you reside.
To access the Content.ad Network and/or the Content.ad Widget, you must establish an Account. You can create an Account by completing the registration process through the Content.ad website.
Maintaining account security is very important. You are entirely responsible for maintaining the confidentiality of your Account password. You agree to notify Content.ad immediately if you believe that an Account password may have been compromised.
You may not share or transfer any Account, except that you may permit your minor child to use an Account registered to you so long as you accept full responsibility for the conduct of that child. You may not disclose your password to anyone else.
You have the right to cancel any Account registered to you at any time. You may cancel any Account registered to you by sending a request to cancel your Account to support@content.ad.
Content.ad reserves the right to deny service to any person in Content.ad's sole and absolute discretion for any reason. The Content.ad Widget is offered with the understanding that Content.ad may terminate any Account registered to you and/or your access to the Content.ad Widget at any time, for any reason or no reason, including without limitation for any violation of this Agreement. Content.ad may stop offering and/or supporting the Content.ad Network, the Content.ad Widget or any portion thereof at any time.
If you voluntarily terminate an Account or allow an Account to lapse, you may reactivate that Account at any time through the Account interface through the Content.ad website. Accounts terminated by Content.ad for any type of abuse, including without limitation a violation of this Agreement, may not be reactivated for any reason.
The term of this Agreement shall commence on the date that Publisher establishes an account with Content.ad (the "Effective Date") and terminate on the date that this Agreement is terminated by Publisher or Content.ad, as set forth in Section 7a below. The provisions of Sections 4, 5, 7, and 9 through 14 shall survive any expiration or termination of this Agreement.
Content.ad software and servers shall track all revenue and number of impressions on Publisher Websites each calendar month. The Publisher acknowledges and agrees that, subject to this Section 5, Content.ad's reports and statistics will be controlling for all purposes, including, without limitation, calculation of payments due under this Agreement. If and to the extent that Content.ad makes available to Publisher any real-time (or near real-time) online reporting, the information presented in any such online reporting shall at all times be subject to customary calendar month-end adjustments made by Content.ad in its sole discretion.
The Adjusted Gross Revenue payments shall be made by Content.ad, with respect to a given calendar month in which revenue was actually generated, no later than the 30th day after the end of such month. No payments will be issued for any amounts less than $50.00 USD; provided, however, that within 30 days after the end of the calendar month in which this Agreement is terminated or expires, Content.ad shall pay to Publisher all amounts payable under this Agreement, regardless of whether such amount is less than $50.00 USD. During the term of this Agreement, all un-issued earnings will rollover to the next pay period. Notwithstanding the foregoing, if Publisher has past due payments to Content.ad and is also an advertiser using the Content.ad Widget, Content.ad shall have the right to withhold or offset all payments due to Publisher until Content.ad receives all payments due to Content.ad.
Content.ad may, from time to time (and for clarity, in any given payment period), and in its sole discretion, set-off, withhold, credit or recoup from any and all amounts payable to Publisher, any and all amounts paid or reimbursed to advertisers or other third parties on account of Artificial Traffic, regardless of whether any such payment or any obligation to pay is contingent or arises out of or relates to this Agreement, or whether payment is then due. The rights described in this Section 4 are in addition to any other rights and remedies available under this Agreement or applicable law.
Content.ad assumes no responsibility for paying any taxes on behalf of Publisher.
PUBLISHER UNDERSTANDS AND ACKNOWLEDGES THAT THERE IS NO GUARANTEE THAT ANY REVENUE (INCLUDING WITHOUT LIMITATION ANY MINIMUM LEVEL OF REVENUE) WILL BE GENERATED AS A RESULT OF THIS AGREEMENT. CONTENT.AD UNDERSTANDS AND ACKNOWLEDGES THAT THERE IS NO GUARANTEE THAT ANY IMPRESSIONS (INCLUDING WITHOUT LIMITATION ANY MINIMUM LEVEL OF IMPRESSIONS) OF ADS WILL BE GENERATED AS A RESULT OF THIS AGREEMENT.
Content.ad will maintain full, correct and complete books and records and supporting documentation pertaining to impressions served hereunder and payment therefor ("Content.ad Records") for a period of one year following the last delivery of impressions under this Agreement. During the term of this Agreement and for a period of one year thereafter, Publisher will be entitled, at its expense, either directly or through an independent accounting firm (an "Auditor"), to audit the Content.ad Records for the purpose of verifying all amounts payable or paid by Content.ad hereunder and compliance with this Agreement (an "Audit"). Audits will take place not more often than once per calendar year, during Content.ad's normal business hours upon not less than ten business days prior written notice, and will be conducted in a manner that does not unreasonably interfere with Content.ad's normal business operations. If an Audit uncovers any non-compliance with this Agreement, error in the Content.ad Records or discrepancy between the Content.ad Records and amounts paid to Publisher, Content.ad shall promptly correct such non-compliance, error or discrepancy, and the responsible party shall promptly pay, as applicable, any and all amounts necessary to reconcile such discrepancy. Anything herein to the contrary notwithstanding, if any Audit uncovers an underpayment by Content.ad that is greater than five percent of the amount actually due during the period audited, then Content.ad shall reimburse Publisher for the actual costs of such Audit.
Content.ad shall use its reasonable efforts to make available to Publisher, via the Account, online tools that will allow Publisher to develop and design the Content.ad Widget for implementation by Publisher on the Publisher Websites. At Publisher's reasonable request, and subject to Content.ad's prior agreement, Content.ad may develop, design and deliver, or assist Publisher in developing and designing, the Content.ad Widget for implementation by Publisher on the Publisher Websites. Content.ad reserves the right to approve, or require modifications to, any implementation and/or placement of the Content.ad Widget by Publisher on the Publisher Websites, in each case, in Content.ad's sole discretion.
Publisher or Content.ad has the right to terminate this Agreement upon seventy-two (72) hours written notice to the other party for any or no reason. Upon any such termination, Publisher shall remove the Content.ad Widget from the Publisher Websites and all of the underlying webpages therein.
Content.ad will be responsible for paying for all impressions served and all Adjusted Gross Revenue until the Content.ad Widget is removed from all of the Publisher Websites.
Content.ad shall be solely responsible for determining, placing and displaying, in its sole discretion, advertisements on or within the Content.ad Network and Content.ad Widget on the Publisher Websites. Notwithstanding the foregoing, Publisher has the right to request, upon prior written notice, the removal of any individual link to sponsored content that is displayed within the Content.ad Widget, for any reason. These links will be removed within one (1) business day following Content.ad's receipt thereof.
Between the parties, Content.ad owns all intellectual property rights in the Content.ad Widget and Publisher owns all intellectual property rights in the Publisher Website.
TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, CONTENT.AD WILL NOT BE LIABLE TO PUBLISHER OR ANY THIRD PARTY FOR ANY LOSS OF BUSINESS OR PROFITS, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR SPECIAL DAMAGES, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE, EVEN IF CONTENT.AD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. PUBLISHER ACKNOWLEDGES THAT THIS LIMITATION OF LIABILITY REFLECTS AN INFORMED, VOLUNTARY ALLOCATION BETWEEN THE PARTIES OF THE RISKS (KNOWN AND UNKNOWN) THAT MAY EXIST IN CONNECTION WITH THIS AGREEMENT. IN ADDITION, CONTENT.AD WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS, OR FOR ANY LOST DATA OR CONTENT CAUSED BY ITS PRODUCTS, SERVICES OR WEBSITES.
UNDER NO CIRCUMSTANCES SHALL CONTENT.AD'S TOTAL LIABILITY OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY CLAIMS HEREUNDER, REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, INFRINGEMENT OR ANY OTHER LEGAL THEORY, EXCEED $1,000. PUBLISHER ACKNOWLEDGES THAT THIS LIMITATION OF LIABILITY REFLECTS AN INFORMED, VOLUNTARY ALLOCATION BETWEEN THE PARTIES OF THE RISKS (KNOWN AND UNKNOWN) THAT MAY EXIST IN CONNECTION WITH THIS AGREEMENT.
"Confidential Information" shall mean any and all oral or written information that is identified as confidential and is provided by one party to the other. Neither Publisher nor Content.ad shall disclose or use the other party's Confidential Information for any purpose other than the purposes contemplated by this Agreement, unless such disclosure or use is allowed by written permission of the other party. Notwithstanding any other provisions hereof, either party may disclose the other party's Confidential Information to the extent required by applicable law, but only after five (5) days prior written notification to the other party of such required disclosure. Upon termination, cancellation or expiration of this Agreement for any reason, or upon request by either party, all Confidential Information of the requesting party, together with any copies thereof, shall be returned to that party or certified destroyed. Publisher's Confidential Information shall remain the property of Publisher, and Content.ad's Confidential Information shall remain the property of Content.ad.
This Agreement shall be governed by and interpreted in accordance with the laws of the State of California, without regard to conflict of law principles. Except as provided in Section 14 below (and claims proceeding in any small claims court), all disputes arising out of or related to this Agreement shall be subject to the exclusive jurisdiction of the state and federal courts located within Los Angeles, California and each party agrees to submit to the personal jurisdiction and venue of such courts.
Publisher and Content.ad agree that, except as provided in Section 14(d) below, all disputes, controversies and claims related to this Agreement (each a "Claim"), shall be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one Party shall be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the "JAMS Rules") and under the terms set forth in this Agreement. In the event of a conflict between the terms set forth in this Section 14 and the JAMS Rules, the terms in this Section 14 will control and prevail.
BY AGREEING TO THIS ARBITRATION PROVISION, PUBLISHER UNDERSTANDS THAT PUBLISHER AND CONTENT.AD WAIVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
The arbitration will take place in Los Angeles, California unless the parties agree to video, phone and/or internet connection appearances.
If Publisher initiates arbitration for a Claim, Publisher will need to pay the JAMS arbitration filing fee. If Content.ad initiates arbitration for a Claim, Content.ad will pay all costs charged by JAMS for filing the arbitration. All other fees and costs of the arbitration will be charged pursuant to the JAMS Rules.
Publisher and Content.ad agree that if any portion this Section 14 is found illegal or unenforceable (except any portion of Section 14(d)), that portion shall be severed and the remainder of the Section shall be given full force and effect. If Section 14(d) is found to be illegal or unenforceable then neither Publisher nor Content.ad will elect to arbitrate any Claim falling within that portion of Section 14(d) found to be illegal or unenforceable and such Claim shall be exclusively decided by a court of competent jurisdiction within the County of Los Angeles, State of California, United States of America, and Publisher and Content.ad agree to submit to the personal jurisdiction of that court.
This is an Agreement between you and Tipalti, Inc., ("Tipalti") and governs your usage of the Tipalti Payment Processing Services. In order to receive payments from Content.ad, you must register with Tipalti for its Payment Processing Services. Through this Agreement, you are appointing Tipalti as your agent for the limited purpose of receiving payments from Content.ad on your behalf. Tipalti's receipt of payment shall satisfy and extinguish Content.ad's obligation to you for the payment. Unless the payment is reversed or returned for any reason, upon Tipalti's acceptance of the payment, Tipalti shall be liable to you for the amount of the payment, and you shall have no other recourse. All Information received by Tipalti in connection with the Tipalti Services is subject to the Content.ad's privacy policy. Neither you nor Tipalti shall be liable for special, incidental, indirect, or any other type of consequential damage. Tipalti shall not be liable to you for any amounts other than the amount of the payment that Tipalti accepts on your behalf. This Agreement is governed by California law, and jurisdiction shall be exclusively in the competent Courts of Santa Clara County, California. Tipalti may amend this Agreement by posting a revised version on its website which shall include 30-days' prior notice of any material changes being effective. Tipalti, Inc. is located at 1810 Gateway Drive, Suite 260, San Mateo, CA 94404 USA.
Publisher may identify to Content.ad certain Target Publishers from time to time. Content.ad shall be under no obligation to approve a Target Publisher as a Content Publisher. Content.ad will evaluate each Target Publisher and determine whether such Target Publisher shall become a Content Publisher in its sole discretion. Should a Target Publisher has enter into a Content Publisher Agreement with Content.ad, as a result of that Agreement or Publisher referrals hereunder, Publisher will be entitled to a Commission as set forth in Section 16.b below. For the avoidance of doubt, Content.ad will at no time have any obligation to enter into a Content Publisher Agreement with any Target Publisher identified by Publisher, the determination of which will be made in the sole discretion of Content.ad.
With respect to each given Content Publisher, within thirty (30) days of the end of each calendar month of the applicable Payment Term for such Content Publisher, Content.ad shall provide to Publisher a statement containing information as shall be required to determine the Commission. Together with each such statement, Content.ad shall remit payment to Publisher a commission payment equal to 5% of Net Revenue earned by Content Publisher through Content.ad (net after Fraudulent Adjustments) in the given calendar month (a "Commission"). Also, the Content Publisher you referred will receive an additional 5% rev share from your referral. For the avoidance of doubt, no Commission will be payable
The referral program is only available to Publisher upon approval by Content.Ad.
The term of this Agreement shall commence on the date the Target Publisher signs up with Content.ad and shall continue for one (1) year (the "Term").
This Agreement and any rights or obligations hereunder shall not be assigned or delegated by Publisher without the prior written consent of Content.ad, which shall not be unreasonably withheld. The rights and obligations of each party hereunder shall inure to the benefit of its respective successors and assigns.
This Agreement constitutes the entire agreement and understanding of the parties in respect of its subject matters and supersedes all prior understandings, agreements, or representations by or among the parties, written or oral, to the extent they relate in any way to the subject matter hereof. No amendment, supplement, modification or waiver of this Agreement shall be binding unless executed in writing by the party to be bound thereby. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provision hereof (whether or not similar), nor shall such waiver constitute a continuing waiver unless otherwise expressly provided. Whenever possible each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be or become prohibited or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity without invalidating the remainder of such provision or the remaining provisions of this Agreement. This Agreement may be executed in any number of counterparts, including facsimile or PDF copies thereof, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument.
Publisher acknowledges and agrees that by clicking on the "I AGREE" button (or similar buttons or links as may be designated by Content.ad to show Publisher's acceptance of this Agreement), Publisher is entering into a legally binding contract. Publisher hereby agrees to the use of electronic communication in order to enter into contracts, place orders and create other records and to the electronic delivery of notices, policies and records of transactions initiated or completed through the Account.
Publisher acknowledges and agrees that by clicking "I AGREE" (or similar buttons or links as may be designated by Content.ad to show Publisher's acceptance of this Agreement) or using the Content.ad Network and/or the Content.ad Widget, Publisher represents that it has read and consents to Content.ad's Privacy Policy in addition to this Agreement. Content.ad may revise the Privacy Policy at any time, and the new versions will be available on the Content.ad Network.
PLEASE READ THIS AGREEMENT CAREFULLY; THIS IS A BINDING CONTRACT.
Welcome to the Content.ad website (the "Site"). Content.ad owns and manages an advertising service in which it displays images, texts and hyperlinks supplied by an advertiser ("you") on websites owned by you or unrelated third parties ("Advertiser's Content"). Visitors to these websites click on these hyperlinks (each, a "Click") and go to a designated page on your website(s) ("Landing Page"). Content.ad charges you for each Click generated to the Landing Page(s).
These Advertiser Terms (this "ToU") describes the terms and conditions applicable to your access and use of the Site and all use of the services and products available at or through or in connection with the Site (collectively, the "Service"). This ToU sets forth the terms and conditions under which Content.ad ("Content.ad," "we," "us," or "our") provides you access to the Site and the Service.
Content.ad may amend this ToU at any time by posting the amended Terms of Use on the Site, and you agree that you will be bound by any changes to this ToU. For your convenience, the date of last revision is included at the top of this page. Content.ad may make changes to the Site and/or the Service at any time. You understand that Content.ad may discontinue or restrict your use of the Site and/or the Service for any reason or no reason with or without notice.
Your use of the Site and/or the Service, or by clicking "I ACCEPT" if presented with this ToU in a click-through format, signifies that you agree to this ToU and constitutes your binding acceptance of this ToU, including any modifications that Content.ad makes from time to time. You acknowledge and agree that by clicking on the "I ACCEPT" button (or similar buttons or links as may be designated by Content.ad to show your acceptance of the ToU), you are entering into a legally binding contract. You hereby agree to the use of electronic communication in order to enter into agreements, to create other records and to the electronic delivery of notices, policies and records of transactions initiated or completed through the Service. If you are accepting this ToU on behalf of your employer or another entity, you represent and warrant that you have full legal authority to bind your employer or such other entity to this ToU. If you do not have such authority, then you may not use the Site and/or the Service on behalf of your employer or such other entity and you must discontinue all use of the Site and the Service immediately.
By clicking "I ACCEPT" or using the Site or the Service, you represent that you have read and consent to our Privacy Policy in addition to this ToU. Content.ad may revise the Privacy Policy at any time, and the new versions will be available on the Site. If at any point you do not agree to any portion of the Privacy Policy, you must immediately stop using the Site and/or the Service.
Before you can use the Service, you must agree to this ToU and the Privacy Policy, which you will be deemed to have done by utilizing the Service. These requirements may change as the Service evolves. You are responsible for any Internet connection fees that you incur when accessing the Service.
Content.ad will revise this ToU as the Site and/or the Service evolves. By using the Site and/or the Service, you agree to the then-current version of this ToU as posted on the Site. If at any point you do not agree to any portion of the then-current version of this ToU, you must immediately stop using the Site and the Service.
Through the Site you may select from a variety of Services offered as described below. The Services we provide pertain to articles, blog posts, user comments, messages, information, text, data, graphics, news articles, photographs, images, illustrations, software, audio clips and video clips provided by you ("Content") on the Site, displayed via the Service and accessed by users of your websites, and promoted through the Service. Content.ad reserves the right to reject any Content for any reason. Additionally, you may request that Content.ad create content for you ("Articles") to be promoted through the Service. Content.ad will not advertise on any website that contains pornographic, hate material, gambling related material or any other material deemed illegal or offensive by Content.ad or under applicable law.
You hereby represent, warrant and covenant that any Content you provide does not include anything to which you do not have the full right to grant the license specified in this Section 6. If supplied by you, you shall supply Content to Content.ad in such formats and as otherwise consistent with our current and prevailing specification requirements. You agree that Content.ad may use your name, Licensed Marks and logo, or otherwise refer to you, in its marketing materials and web sites as part of a list of its customers, and in any advertisement, news release or other publication of Content.ad for the purpose of publicizing these ToU and/or Content.ad's relationship with you. Content.ad reserves the right to set your campaign live once the funds have been added to your account and content has been approved by our team.
You represent that you are an adult and have the legal capacity to enter into a contract in the jurisdiction where you reside.
To access the Service, you must have an account. You can create an account by completing the registration process on the Site. By registering, you will have the ability to control certain settings for the Service. Depending upon which Services you select, you may be required to supply contact and other information.
Maintaining account security is very important. You are entirely responsible for maintaining the confidentiality of your account password. You agree to notify Content.ad immediately if you believe that an account password may have been compromised.
You may not share or transfer any account, except that you may permit your minor child to use an account registered to you so long as you accept full responsibility for the conduct of that child. You may not disclose your password to anyone else.
You have the right to cancel any account registered to you at any time. You may cancel any account registered to you by sending a request to cancel your account to support@content.ad.
Content.ad reserves the right to deny service to any person and to reject any Content in Content.ad's sole and absolute discretion for any reason. The Service is offered with the understanding that Content.ad may terminate any account registered to you and/or your access to the Service at any time, for any reason or no reason, including without limitation for any violation of this ToU. Content.ad may stop offering and/or supporting the Service or any portion thereof at any time.
If you voluntarily terminate an account or allow that account to lapse, you may reactivate that account at any time through the account interface on the Site. Accounts terminated by Content.ad for any type of abuse, including without limitation a violation of this ToU, may not be reactivated for any reason. Upon cancellation or termination (whether by you or Content.ad), all amounts due to Content.ad hereunder from you shall become immediately due and payable.
You will designate either a daily budget or a total budget (as applicable, the "Budget") for your account. Due to the nature of Internet marketing, Content.ad has the right to deliver and you agree to pre-pay for an amount of Clicks equal to 110% of your Budget. Upon the entire depletion of your account Budget, your account will be inactive until the funds in your account are replenished.
All Budget amounts are required to be pre-paid by credit card and/or wire transfer. If you desire to pay on extended terms and not via pre-pay, you may apply for extended terms from Content.ad by first submitting a request for extended terms to credit@content.ad. Content.ad may deny extended terms to you in its sole discretion.
Unless otherwise agreed in a separate writing signed by you and Content.ad, you agree to pre-pay for Clicks in advance of Content.ad delivering such Clicks to you. For Clicks for which you have not pre-paid, you agree to make all payments for such Clicks when due. If your account has a current or past due balance with Content.ad's accounts receivable and you are also a publisher on the Site, Content.ad reserves the right to withhold money due to you under the publisher agreement and/or to withdraw funds from your account in order to make your account current.
Content.ad software and servers shall track all Click information and you acknowledge and agree that, subject to this Section 8.4, Content.ad's reports and statistics will be controlling for all purposes including, without limitation, calculation of pre-paid amounts allocated for Clicks delivered to you by Content.ad and, in the event the pre-paid amount does not cover the amount of Clicks delivered to you by Content.ad, payments for such Clicks and any other payments due under this Agreement. Content.ad will grant you access to an online reporting tool which allows you to review Click information. If and to the extent Content.ad makes any real-time (or near real-time) online reporting to you, such information shall at all times be subject to customary calendar month-end adjustments made by Content.ad in its sole discretion. You will pay for Clicks based on Content.ad's reporting. Content.ad will deliver an invoice to you after the close of each calendar month (the "Invoice"). The Invoice will report the number of Clicks occurring in such calendar month. You acknowledge and agree that a Click does not guarantee that a visitor will actually arrive at the requested target Landing Page and that a Click will be considered valid even if the target Landing Page is busy or not available. In the event the amount you pre-paid does not cover the amount owed for Clicks delivered to you by Content.ad, then the applicable Invoice will include your required payment for such Clicks. For any required payments to Content.ad, you shall pay Content.ad within the number of days set forth in the "Payment Terms" portion of the Invoice (or within thirty (30) days, if no number is set forth) after the end of the calendar month for which the Invoice is delivered, or as otherwise agreed to by Content.ad and you in writing. Any payment not made within thirty (30) days of the due date shall accrue interest at the rate of 1.5% per month or any fraction thereof, or if less, the highest rate permitted under law. All costs of collection, including reasonable attorney's fees, court costs and related expenses, incurred by Content.ad shall be borne by you. If you default in the payment of an Invoice or if in the judgment of Content.ad, your credit becomes impaired, Content.ad shall have the right to require payment for any future advertising to be upon such terms as Content.ad may deem appropriate.
Content.ad stipulates that due to the asynchronous nature of click tracking, all numbers are provisional until warranted final by Content.ad. The Content.ad dashboard can be expected to reflect final numbers for the current month no earlier than the fifth (5th) day of the month following. All numbers presented prior to that date are to be treated as estimates only. Current numbers in the dashboard may vary significantly from finalized numbers. Corrections should be made before the 5th of the month and that’s how we will ensure that we will have final numbers by the 5th.
You shall pay all sales, use, excise and other taxes which may be levied upon either party in connection with these ToU, except for income taxes.
Effective Oct 1st 2019, all credit card and PayPal payments are subject to a processing fee of 3%.
As between you and Content.ad, the Service and all data and information generated thereby are and shall at all times remain the sole and exclusive property of Content.ad and are protected by applicable intellectual property laws and treaties. All data and other information related to the Site or collected by way of the Service on any website shall be the sole property of Content.ad. You acknowledge that you do not acquire any ownership rights in or to the Service or such data.
The Site the Service and the content made available through the Site and the Service are protected by U.S. and international copyright laws. Except for your use of the content in connection with the Service to which we have the appropriate licensing rights or as authorized in this ToU, you may not use, modify, reproduce or distribute any of the content, or the design or layout of the Site the Service or individual sections of the content, design or layout of the Site without Content.ad's express prior written permission.
As a condition of use, you acknowledge and agree that you may not use the Service for any purpose not reasonably intended by Content.ad. You agree not to license, create derivative works from, transfer, sell or re-sell any information, content, software or services obtained from the Site. Content.ad reserves the right to add or remove information, Content or Services from the Site at any time at its sole discretion.
You agree that you will not, in connection with your use of the Site or the Service, violate any applicable law or regulation. Without limiting the foregoing, you agree that you will not make available through the Site and/or the Service any material or information that infringes any copyright, trademark, patent, trade secret, or other right of any party (including rights of privacy or publicity).
You agree that Content.ad may use your name, Licensed Marks and logo, or otherwise refer to you, in its marketing materials and websites as part of a list of its customers, and in any advertisement, news release or other publication of Content.ad for the purpose of publicizing the Service and/or Content.ad's relationship with you.
The Site and the Service are operated by Content.ad in the United States. Those who choose to access the Site, and/or the Service from locations outside the United States do so on their own initiative and are responsible for compliance with applicable local laws.
The Site and the Service are not directed toward children under 13 years of age nor does Content.ad knowingly collect information from children under 13 or allow them to create an account or access account features. If you are under 13, please do not submit any personally identifiable information to Content.ad.
You acknowledge that Content.ad has no control over, and no duty to take any action regarding: which users gain access to the Service; what effects the Service may have on you, your website or equipment; the accuracy or how you may interpret, rely, or use the Service including without limitation any loss of reputation or loss of traffic on your website or any website of any of your affiliates; or what actions you may take as a result of having been exposed to the Service. You further acknowledge and agree that Content.ad shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of, or reliance on, any Content, goods or services available on or through any third party website linked or referred to by any portion of the Service. You release Content.ad from all liability with respect to the Service, and any Content or data provided or accessed via the Service or through the Site. The Site may contain, or direct you to websites containing, information that some people may find offensive or inappropriate. Content.ad makes no representations concerning the Content contained in or accessed via the Service or the Site, including without limitation Promoted Content, and Content.ad will not be responsible or liable for the contents, accuracy, copyright compliance, legality or decency of third party Content or services accessed via the Service or the Site or for your reliance on any of the foregoing. Content.ad does not make any representation, warranty or guarantee of the quantity or quality of traffic that you will receive under this ToU.
Additionally, Content.ad does not make any representation, warranty or guarantee of the quantity or quality of Clicks that you will receive under this Agreement. Content.ad will make commercially reasonable efforts to ensure that it does not charge for any fraudulent Clicks. Content.ad does not, however, represent or warranty that there will no fraudulent Clicks.
Because some states or jurisdictions do not allow the disclaimer of implied warranties, the foregoing disclaimer may not apply to you.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, CONTENT.AD, ITS AFFILIATES, LICENSORS AND BUSINESS PARTNERS (COLLECTIVELY, THE "RELATED PARTIES") DISCLAIM ALL LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND FURTHER DISCLAIMS ALL LOSSES, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE SITE AND/OR THE SERVICE, EVEN IF CONTENT.AD AND/OR RELATED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, IN NO CASE SHALL THE LIABILITY OF CONTENT.AD OR ANY OF THE RELATED PARTIES EXCEED $100.
Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, the liability of Content.ad and its affiliates shall be limited to the fullest extent permitted by law.
You agree to indemnify, defend and hold Content.ad and the Related Parties harmless from any and all claims, demands, damages or other losses, including reasonable attorneys' fees, resulting from or arising out of your use of the Site and/or the Service or any breach by you of this ToU or any other policies that Content.ad may issue for the Site and/or the Service from time to time.
This ToU shall be governed by and interpreted in accordance with the laws of the State of California, without regard to conflict of law principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Except as provided in Section 17 below (and claims proceeding in any small claims court), all disputes arising out of or related to your use of the Site and/or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located within Los Angeles, California and you agree to submit to the personal jurisdiction and venue of such courts.
You and Content.ad agree that, except as provided in Section 17.4 below, all disputes, controversies and claims related to this ToU (each a "Claim"), shall be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the "JAMS Rules") and under the terms set forth in this ToU. In the event of a conflict between the terms set forth in this Section 17 and the JAMS Rules, the terms in this Section 17 will control and prevail.
BY AGREEING TO THIS ARBITRATION PROVISION, YOU UNDERSTAND THAT YOU AND CONTENT.AD WAIVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
The arbitration will take place in Los Angeles, California, unless the parties agree to video, phone and/or internet connection appearances.
If you initiate arbitration for a Claim, you will need to pay the JAMS arbitration initiation fee. If we are initiating arbitration for a Claim, we will pay all costs charged by JAMS for initiating the arbitration. All other fees and costs of the arbitration will be charged pursuant to the JAMS Rules.
You and Content.ad agree that if any portion this Section 17 is found illegal or unenforceable (except any portion of Section 17.4), that portion shall be severed and the remainder of the Section shall be given full force and effect. If Section 17.4 is found to be illegal or unenforceable then neither you nor Content.ad will elect to arbitrate any Claim falling within that portion of Section 17.4 found to be illegal or unenforceable and such Claim shall be exclusively decided by a court of competent jurisdiction within the County of Los Angeles, State of California, United States of America, and you and Content.ad agree to submit to the personal jurisdiction of that court.
"Confidential Information" shall mean any and all oral or written information that is identified as confidential and is provided by one party to the other. Neither you nor Content.ad shall disclose or use the other party's Confidential Information for any purpose other than the purposes contemplated by this ToU, unless such disclosure or use is allowed by written permission of the other party. Notwithstanding any other provisions hereof, either party may disclose the other party's Confidential Information to the extent required by applicable law, but only after five (5) days prior written notification to the other party of such required disclosure. Upon termination, cancellation or expiration of this ToU for any reason, or upon request by either party, all Confidential Information of the requesting party, together with any copies thereof, shall be returned to that party or certified destroyed. Your Confidential Information shall remain the property of you, and Content.ad's Confidential Information shall remain the property of Content.ad.
This ToU may only be revised in a writing signed by Content.ad, or published by Content.ad on the Site.
You agree that no joint venture, partnership, employment, or agency relationship exists between you and Content.ad as a result of this ToU or your use of the Service.
Content.ad may assign this ToU, in whole or in part, to any person or entity at any time with or without your consent. You may not assign the ToU without Content.ad's prior written consent, and any unauthorized assignment by you shall be null and void.
If any part of this ToU is determined to be invalid or unenforceable, then that portion shall be severed, and the remainder of the ToU shall be given full force and effect.
In the event any litigation or arbitration is brought by either party in connection with this ToU, the prevailing party shall be entitled to recover from the other party all the reasonable costs, attorneys' fees and other expenses incurred by such prevailing party in the litigation.
Our failure to enforce any provision of this ToU shall in no way be construed to be a present or future waiver of such provision, nor in any way affect the right of any party to enforce each and every such provision thereafter. The express waiver by us of any provision, condition or requirement of this ToU shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
All notices given by you or required under this ToU shall be in writing and addressed to: Content.ad, 400 Exchange Suite 250, Irvine, CA 92602.
You will comply fully with all relevant export laws and regulations of the United States, including, without limitation, the U.S. Export Administration Regulations.
You hereby agree that Content.ad would be irreparably damaged if the terms of this ToU were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this ToU, in addition to such other remedies as we may otherwise have available to us under applicable laws.
This ToU, including the documents expressly incorporated by reference, constitutes the entire agreement between you and us with respect to the Site and/or the Service and supersedes all prior or contemporaneous communications, whether electronic, oral or written, between you and us with respect to the Site and/or the Service.