Publisher Terms and Conditions
These Advertising.com Publisher Terms and Conditions, the Addenda attached hereto, which are hereby incorporated by reference (collectively, the “Agreement” or the “Advertising.com T&C”), between Advertising.com, Inc., and its affiliates, (“Advertising.com” or the "Company"), and you (the “Publisher”) shall govern Publisher’s participation in the Advertising.com Network.
DEFINITIONS
“Action” means a specific activity that is required by an advertiser to qualify for the payment of the display of a Creative, i.e., click, purchase, registration, etc., which activity will be set forth in the IPC or in the associated online program.
“Advertising.com” means Advertising.com, Inc., a Maryland corporation, located at 1020 Hull Street, Baltimore, MD 21230.
“Advertising.com Network” means the centrally managed group of third party Web Sites through which Advertising.com can distribute Creatives, including the Video Network and Mobile Network.
“CPA” means a campaign for which Publisher shall be paid on a Cost Per Action basis.
“CPC” means a campaign for which Publisher shall be paid on a Cost Per Unique Click basis.
“CPM” means a campaign for which Publisher shall be paid on a Cost Per Thousand Impressions basis.
“Creative” means any type of advertising creative used by Publisher to deliver Units hereunder, including, but not limited to, buttons, banners, text-links, pop-ups, pop-unders, and Video Creatives and Mobile Creatives.
“Currently Available Creatives” means those Creatives provided by Advertising.com that are available for selection by Publisher to run on the Publisher’s Web Site.
“Impressions” means the number of times a Creative is served to, and received by, a unique visitor on Publisher’s Web Site(s) as measured by Advertising.com. Notwithstanding the foregoing, a Video Creative served with any companion banner shall count as a single impression as measured by Advertising.com.
“Invalid Click” means any click on a Creative that causes the web surfer to reach a destination other than the intended destination (an incorrect redirect), which may be caused by a server malfunction on the Publisher’s Web Site(s), or because of alterations made by Publisher or erroneous coding placed on the Publisher’s Web Site(s).
“IPC” means Advertising.com Inventory Purchase Contracts entered into by the parties. In the event of any inconsistency between the Advertising.com T&C and terms set forth in an IPC, the IPC shall control.
“Landing Page” means the web page on Publisher’s Web Site where Publisher collects lead data when generating Actions.
“Mobile Advertising Inventory” is defined in the Addenda.
“Mobile Creative” means a Creative specifically designed to display on mobile telecommunications devices, such as cellular phones or PDA’s accessing a Web Site.
“Mobile Network” means Advertising.com’s centrally managed group of third party Web Sites through which Advertising.com distributes Mobile Creatives.
“Mobile Web Site” means a Web Site specifically designed to display on mobile telecommunications devices, such as cellular phones or PDA’s.
“Net Revenue” means, with respect to any particular period or time, the amount invoiced by Advertising.com to advertisers for serving Creatives, less the following deductions: transaction fees, third party campaign referral fees and commissions, and applicable ad serving and technology fees paid to third parties.
“Network Tags” means scripts provided by Advertising.com that are designed to be inserted into the HTML code of web pages within the Publisher’s Web Site(s), which scripts communicate with servers designated by Advertising.com and request transmission from those servers of Creatives. Network Tags include Run of Network code.
“Publisher” means the owner or manager of the Web Site(s) participating as member of the Advertising.com Network.
“Publisher Marks” means Publisher’s trademarks, service marks, logos and trade dress.
“Publisher’s Net Revenue” means that Net Revenue generated by Publisher’s display of Creatives delivered to Impressions on Publisher’s Web Sites.
“Revenue Share” means a campaign for which payment is based upon a percentage of Net Revenue, such payment shall be the amount equal to the product of (i) the Publisher Net Revenue during such calendar month, multiplied by (ii) the revenue share percentage payout rate set forth on the IPC or online terms.
“Run of Network” means the code provided by Advertising.com that automatically rotates multiple Creatives available in the Advertising.com Network on Publisher’s Web Site as determined by Advertising.com.
“Unique Click” means the number of times, as recorded by Advertising.com, a person viewing Publisher’s Web Site(s), as identified by cookie or IP address, clicks on a Creative, provided however,that a click on a specific Creative by a particular person shall only be counted as a Unique Click once every 1-hour period.
“Units” means the advertising units (i.e., Impressions, Unique Clicks or Actions) available for delivery by Publisher.
“Video Creative” means a broadband video advertising unit as more fully described in the IAB Broadband Ad Creative Guidelines located at http://www.iab.net/standards/broadband/index_old.asp.
“Video Network” means the centrally managed group of third party Web Sites through which Advertising.com distributes Video Creatives.
“Web Site” means a file or collection of files identified by a common domain name and located on a common server(s), each of which files contains a web object or collection of objects that provide content or functional instructions for user-accessible web pages, which files are publicly available via the Internet.
1. Prohibited Content. Advertising.com does not accept any Web Site that contains: indecent, obscene or pornographic material, hate speech, highly explosive subject matter (as determined by Advertising.com), or any illegal subject matter or activities (collectively referred to as the “Prohibited Content”). Publisher represents and warrants that during the term of this agreement any of its Web Site(s) on which it places Creatives shall not contain or promote any Prohibited Content.
2. Approval; Availability of Inventory. Participation in the Advertising.com Network is subject to prior approval of Advertising.com. Advertising.com reserves the right to withhold approval or withdraw approval of Web Sites to participate in the Advertising.com Network for any or no reason and at any time. Any Publisher that materially changes their Web Site content after approval into the Advertising.com Network MUST notify Advertising.com of the changes in writing IMMEDIATELY. Notices should be sent to Publisher’s Account Manager or to publisher@advertising.com Approval to the Advertising.com Network is limited only to the specific Web Site(s) for which Publisher has applied for approval and is limited to the specific URLs identified on the IPC. Creatives may not be placed within any Web Site(s) or on any URLs not specifically approved for participation in the Advertising.com Network. Publisher’s participation in the Advertising.com Network is non-exclusive and all inventory is preemptible at Publisher’s sole discretion.
3. Implementation.
(a) Network Tags. Advertising.com requires placement of Network Tags on those web pages of Publisher that have been approved for Creatives. Publisher shall use reasonable efforts to promptly place and enable the Network Tags. From time to time, certain customizations may be required during this Agreement to ensure the Network Tags operate as intended, Publisher agrees to cooperate with Advertising.com to implement such customizations.
(b) License Grant. Subject to the terms and conditions of this Agreement, Advertising.com grants to Publisher a limited, non-transferable, non-exclusive, non-sub-licensable right and license to use the Network Tags and Creatives, solely for the purposes of performance of this Agreement.
(c) Restrictions. Publisher shall not: (i) sell, rent, lease, sublicense, transfer, distribute or otherwise make available the Network Tags or Creatives or any copies thereof to any third party; (ii) translate, reverse engineer, decompile or disassemble the Network Tags; (iii) create derivative works based upon the Network Tags; (iv) alter, destroy or otherwise change the Network Tags or Creatives (except as authorized in this Agreement); (v) copy the Network Tags or Creatives, except for performance of this Agreement or for backup, archival and disaster recovery purposes; or (vi) place the Network Tags or Creatives on unapproved Web Site(s) or web pages.
(d) Ownership Rights. Except for the limited license rights expressly granted to Publisher in this Section, Advertising.com retains all right, title and interest in and to the Network Tags or Creatives including all patent, copyright, trade secret and other intellectual property rights therein.
(e) Publisher Responsibilities. Publisher is solely responsible, at its own expense, for procuring, maintaining and operating all hardware, software, networks, systems and third-party services (e.g., Internet access) necessary to (i) operate Publisher’s Web Site(s) that has been approved by Advertising.com to deliver Creatives, (ii) use the Network Tags, (iii) display the Creatives, and (iv) access and use the Advertising.com Network services. Advertising.com will provide reasonable assistance to implement the Network Tags. Notwithstanding the previous sentence, Publisher is solely responsible for ensuring that such hardware, software, networks, systems and third-party services are compatible with the Network Tags, and Advertising.com makes no representation or warranty regarding any such compatibility.
(f) Provision of Impressions. Publisher agrees that Advertising.com requires Publisher to deliver the Impressions smoothly (i.e., no spikes in numbers of Impressions delivered). Unless otherwise agreed by Advertising.com in writing to accept spikes, Advertising.com, may, in its sole discretion, reject Impressions that are not delivered smoothly. For purposes of this Section, a “spike” is defined as the delivery of Impressions equal or greater than two times the number of Impressions contracted for in the IPC for five (5) consecutive days, subject to a minimum of (i) five million Impressions per day, or (ii) one million Impressions per day on the Mobile Network, or (iii) one million Impressions per day on the Video Network.
4. Prohibited Activities. Publisher agrees that it shall NOT, unless it has received written authorization from Advertising.com:
(a) Intentionally place Creatives on blank web pages or on web pages with no content; stack Creatives (e.g. place on top of one another so that more than 2 ads are next to each other)
(b) Place Creatives on non-approved Web Sites or web pages, or in such a fashion that may be deceptive to the visitor.
(c) Place Creatives on any Web Site (i.e, a specific URL) other than the Web Site for which the Creative was accepted, or place advertisements intended for Web Sites on or within any other media other than Web Sites.
(d) Resell any Creatives to other Web Sites, publishers, or any other third parties.
(e) Serve Creatives from any location other than the Advertising.com server (stored images that are loaded from a different location will not count towards any statistic or payment).
(f) Alter, copy, modify, take, sell, re-use, or divulge in any manner any Creatives or computer code provided by Advertising.com; provided that Publisher may, without prior approval, change the font type, font style, and font size of text-link advertisements offered on the Advertising.com Network only for the purpose of matching the font in Publisher’s Web Site(s).
(g) Serve Creatives, or drive traffic to such Creatives, using any downloadable applications.
(h) Induce persons to click on Creatives based on incentives (e.g. rewards programs).
(i) Send emails to persons other that those persons who have requested to receive such emails (i.e., spamming) or use unsolicited email or inappropriate newsgroup postings to promote Creatives;
(j) Use autospawning browsers, or automatic redirecting of visitors, blind text links, misleading links, forced clicks (i.e. requiring a visitor to click on a Creative because their browser has been hijacked, or because a Creative has been altered so that it is impossible to close without clicking it); or any other method that may lead to artificially high numbers of delivered clicks.
(k) Place Creatives on any surf bars or any other downloadable software applications or any advertising space created by such bars or downloadable software applications.
Publisher recognizes that a breach of any of these conditions could result in immediate, extraordinary and irreparable damage to Advertising.com and its relationships with its advertising clients, and that damages may be difficult to measure. Upon a determination by Advertising.com, in its sole discretion, that Publisher has violated any of the foregoing conditions of this Section 4, Publisher agrees that Advertising.com may, in addition to other legal remedies, assess liquidated damages of up to $1,000.00 per occurrence of each such violation, and that such liquidated damages are reasonable.
5. Payment.
(a) General. Payment to Publisher shall be based on the payment terms and rates set forth in the associated IPC or online terms (e.g., CPM, CPC, CPA, Revenue Share). Specific payout programs rates shall be set forth in the associated IPC or online terms. Payments shall be made by Advertising.com no later than the 30th day after the end of the month in which revenue was earned by Publisher, except for payments on Mobile Advertising Inventory, which shall be paid no later than the 90th day after the end of the month in which revenue was earned on such inventory. Publisher will be paid at the account level (i.e., if Publisher has multiple accounts, each account is evaluated independently). To insure timely payment, Publisher must notify Advertising.com at publishers@advertising.com of any changes to its account information, including change of address, phone or email address. No checks will be issued for any amounts less than $25 U.S.D. All un-issued earnings will rollover to the next pay period.
(b) Withholding Payment. Advertising.com reserves the right to withhold payment from Publisher if Publisher has engaged in activity that is deceptive or fraudulent in nature as determined by Advertising.com in its sole discretion. Examples of such deceptive or fraudulent acts may include, without limitation, clicks without referring URLs, extraordinary high numbers of repeat clicks, and clicks from non-approved root URLs.
(c) Disqualification. In no event may more than 5% of Unique Visitors for any payout calculation come from one IP address. Impressions that are served but are not received due to end user blocking technology or software (e.g., pop-up blocking software) shall not count towards any payout calculation.
(d) Taxes. Advertising.com assumes no responsibility for paying income taxes on behalf of Publisher. By participating in the service, Publisher assumes complete and sole responsibility for any taxes owed as a consequence of participation in the service and agrees to indemnify and hold Advertising.com harmless from any such taxes. Advertising.com shall provide Publisher with appropriate tax information, including earnings on Form 1099 as required by applicable law. If Publisher resides in the United States, then Publisher agrees to provide its Social Security number or Federal Employee Identification Number and any other reasonable information to Advertising.com for tax reporting purposes. Such information will be used for no purpose other than for tax reporting purposes. If Publisher resides outside of the United States, then Publisher may be asked to complete appropriate forms for tax purposes and agree to accurately complete such forms. Advertising.com may withhold payment from Publisher in the event that Publisher does not provide accurate tax information or complete any necessary tax or reporting forms, as determined in Advertising.com’s sole and absolute discretion.
(e) PUBLISHER UNDERSTANDS AND ACKNOWLEDGES THAT THERE IS NO GUARANTEE THAT ANY MINIMUM LEVEL OF REVENUE, OR ANY REVENUE, WILL BE GENERATED AS A RESULT OF THIS AGREEMENT.
6. Counting. Advertising.com shall have the responsibility in its absolute and sole discretion for calculation of statistics, including, but not limited to, Impressions, Unique Clicks, Actions and revenue generated on Publisher’s Web Site(s), as applicable. Greenwich Mean Time (GMT) shall be the time period for traffic and tracking purposes. Statistics shall be available to Publisher online at http://reports.advertising.com or http://publishers.advertising.com. Publisher acknowledges that in some cases, Advertising.com will need to make adjustments to reported statistics due to specific contractual provisions (e.g., bonuses), Invalid Clicks, or statistical errors.
7. Use of Data. Advertising.com receives non-personally identifiable data (e.g. IP address, cookie information) as sent by Publisher in connection with serving Creatives in Publisher’s Web Site(s). Advertising.com will only use and disclose such data for any purpose in a manner consistent with Advertising.com’s Privacy Statement, which can be found at http://www.advertising.com/privacy_policy.php.
8. Term; Termination.
(a) These terms and conditions, as and if amended, shall apply to Publisher for as long as Publisher is a member of the Advertising.com Network. Either party may terminate this Agreement or any IPC at any time, for any reason whatsoever, upon written notice to the other party. Notice may be provided via e-mail, fax, or other written means and will be effective immediately.
(b) Upon receipt of such termination notice, any licenses granted by Advertising.com hereunder shall immediately terminate and Publisher must remove all Network Tags from its Web Site(s) and cease delivery of any and all Creatives. In the case of termination, Advertising.com will pay Publisher all uncontested amounts due during the next billing cycle as set forth in Section 5, less a twenty-five dollar ($25.00 U.S.D.) account closing fee.
(c) The following Sections of the Agreement, and those which by their nature are ongoing obligations, shall survive any expiration or termination of this Agreement: 6, 7, 8, 9, 10, 11, and 18.
9. Limitation of Liability. ADVERTISING.COM WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR OTHER SIMILAR DAMAGES NOR FOR ANY LOSS OF PROFITS, LOSS OF REVENUES, LOSS OF SAVINGS, LOSS OF CLIENTELE, LOSS OF USE OR LOSS OR CORRUPTION OF DATA, WHETHER UNDER TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHER THEORIES OF RECOVERY, EVEN IF ADVERTISING.COM WAS OR SHOULD HAVE BEEN AWARE OR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL ADVERTISING.COM’S LIABILITY ARISING OUT OF THIS AGREEMENT FROM ANY CAUSE OF ACTION WHATSOEVER EXCEED THE AGGREGATE AMOUNTS PAID OR OWED UNDER THIS AGREEMENT BY EITHER PARTY DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE THE CAUSE OF ACTION AROSE. EACH PARTY AGREES AND DOES WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT AGAINST THE OTHER PARTY FOR ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT. NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST ADVERTISING.COM MORE THAN ONE YEAR AFTER THE DATE OF SERVICE UNDER THIS AGREEMENT.
10. Indemnification.
(a) Publisher. Publisher hereby agrees to defend, settle and pay damages on behalf of Advertising.com and its officers, directors, agents, affiliates and employees associated with any and all claims, actions, liabilities, losses, expenses, damages, and costs (including, without limitation, reasonable attorneys’ 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, breach of contract, copyright infringement, trademark infringement or other infringement of any third party right, fraud, false advertising, misrepresentation, product liability or violation of any law, statute, ordinance, rule or regulation throughout the world in connection with Publisher’s Web Site(s) (except for Creatives supplied by Advertising.com, unless such Creatives were modified by Publisher without the express written consent of Advertising.com); (b) arising out of any material breach by Publisher of any term, condition, representation or warranty under this or any other agreement with Advertising.com; or (c) relating to a contaminated file, virus, worm, or Trojan horse originating from Publisher’s Web Site(s) (other than through a Creative supplied by Advertising.com, unless such Creative was modified by Publisher without the express written consent of Advertising.com).
(b) Advertising.com. Advertising.com hereby agrees to defend, settle and pay damages on behalf of Publisher and its officers, directors, agents, affiliates and employees associated with any and all third party claims, actions, liabilities, losses, expenses, damages, and costs (including, without limitation, reasonable attorneys’ fees) that may at any time be incurred by any of them by reason of any claims, suits or proceedings arising out of a material breach by Advertising.com of any term, condition, representation or warranty under this Agreement.
(c) Indemnification Procedures. Any claim for indemnification hereunder shall be subject to the following provisions: (x) the indemnifying party shall be given prompt written notice of the claim by the indemnified party, provided that any delay in providing notice shall not relieve the indemnifying party of its indemnity obligations under this Agreement unless, and only to the extent, the indemnifying party was prejudiced by the delay; (y) the indemnifying party shall have the right to control the defense and all negotiations relative to the settlement of any such claim, provided that no settlement admitting liability on the part of the indemnified party may be made without the express written consent of the indemnified party; and (z) the indemnified party shall reasonably cooperate with the indemnifying party and its counsel at the indemnifying party’s cost and expense.
11. Confidentiality. Publisher acknowledges that during the performance of its duties and obligations under this Agreement, Advertising.com may be required to disclose to Publisher certain information that Advertising.com regards as proprietary or confidential.
(a) Defined. As used in this Agreement, the term "Confidential Information" shall refer to: (i) Advertising.com’s trade secrets, business plans, strategies, methods and/or practices; (ii) computer systems architecture and network configurations (iii) any and all information which is governed by any now-existing or future non-disclosure agreement between the parties hereto, (iv) any other information relating to Advertising.com that is not generally known to the public, including information about Advertising.com's personnel, products, customers, financial information, marketing and pricing strategies, services or future business plans; and (v) any and all analyses, compilations, studies, notes or other materials prepared that contain or are based on Confidential Information received from Advertising.com.
(b) Obligations. Publisher agrees that it will not disclose any Confidential Information to any third-party, and that it will not use Confidential Information for any purpose not permitted under this Agreement. It will protect the Confidential Information in the same manner Publisher protects its own confidential and proprietary information, but in no event shall such protection be less than a reasonable standard of care.
(c) Exceptions. The foregoing obligations shall not apply to the extent Confidential Information: (a) must be disclosed by Publisher to comply with any requirement of law or order of a court or administrative body (provided that Publisher agrees to notify Advertising.com of the issuance of such order and cooperate in its efforts to convince the court or administrative body to restrict disclosure); or (b) is known to or in the possession of Publisher prior to the disclosure of such Confidential Information to Publisher hereunder, as evidenced by the Publisher's written records; or (c) is known or generally available to the public through no act or omission of Publisher or its officers, directors, employees, agents, consultants, attorneys or independent contractors in breach of this Agreement; or (d) is made available free of any legal restriction to Publisher by a third party.
(d) Survival. The duties and requirements under this Section 11 relating to the rights and obligations of the parties concerning Confidential Information disclosed during the term of the Agreement shall survive termination of this Agreement.
12. Publisher Marks. Publisher authorizes Advertising.com to disclose its membership in the Advertising.com Network and grants Advertising.com the non-exclusive right to use, publish and display the Publisher Marks in a client list of properties for which Advertising.com has advertising rights. Advertising.com may sell, promote or market the right to provide Creatives on the Publisher Web Sites, along with other websites, but only on a non-guaranteed, as-available basis, unless otherwise directed by Publisher in writing. Publisher may not disclose its membership in the Advertising.com Network without the prior written consent of Advertising.com.
13. Entire Agreement; Assignment. These terms and conditions, as and if amended, and the associated IPC or online terms shall constitute the entire and only agreement between the parties regarding Publisher’s participation in the Advertising.com Network, and shall supersede all previous communications, representations or Agreements, whether written or oral between the parties relating to the services provided hereunder. Publisher may not assign this Agreement or any IPC without the prior written consent of Advertising.com, which consent shall not be unreasonably withheld. Any assignment by Publisher without such consent shall be void ab initio. This Agreement shall inure to the benefit of all successors and assigns.
14. Representations and Warranties.
(a) Both Parties. Each party represents and warrants to the other that (i) it has the full right, power, and authority to enter into this Agreement; (ii) the execution of this Agreement and performance of its obligations under this Agreement do not and will not violate any other agreement to which it is a party; and (iii) this Agreement constitutes a legal, valid and binding obligation when agreed to.
(b) Publisher. Publisher represents and warrants that (i) it owns or has the rights to all content, products, and services on its Web Site(s) to perform its obligations herein; (ii) it will conduct its business and fulfill its obligations under this Agreement in compliance with all applicable laws, rules and regulations.
(c) Advertising.com. Advertising.com represents and warrants that it (i) has all necessary licenses and clearances to use and permit Publisher to display the content contained in the Creatives and (ii) will comply with all applicable laws, rules and regulations relevant to the performance of its obligations under this Agreement.
15. Remedy. Advertising.com reserves the right to withhold payment and take appropriate legal action to cover its damages against any Publisher that violates these terms or breaches the representations and warranties set forth in this Agreement, or engages in fraudulent activity.
16. Modifications. Advertising.com reserves the right to change any of these Advertising.com T&C at any time. Publishers are responsible for complying with any changes to the Advertising.com T&C within ten (10) business days from the date of change. Advertising.com will post notice that changes have been made to the Advertising.com T&C on the Publisher stats page http://reports.advertising.com or at http://publisher.advertising.com.
17. Warranties. NEITHER PARTY MAKES ANY WARRANTIES (INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT), GUARANTEES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN OR OTHERWISE AND ALL SUCH WARRANTIES ARE DISCLAIMED, EXCEPT AS EXPRESSLY SET FORTH HEREIN.
18. Governing Law; Venue. The relationship between Advertising.com and Publisher will be governed by, and construed in accordance with, the laws of the State of Maryland without regard to its laws or regulations relating to conflicts of laws. Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the state and federal courts situated in the city of Baltimore, Maryland in connection with any action arising between the parties.
19. Severability and Waiver. If any provision of this Agreement shall be held or made invalid or unenforceable by a court decision, statute, rule or otherwise, the remaining provisions of this Agreement shall not be affected thereby and shall continue in full force and effect. Any waiver (express or implied) or delay by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.
20. Privacy. Publisher represents and warrants that it shall, at all times during the term of this Agreement (i) maintain a privacy statement that complies with applicable law and (ii), provide a brief explanation within its privacy statement explaining that it allows third parties to serve Creatives within its Web Site(s).
21. Force Majeure. Neither party will be liable for delay or default in the performance of its obligations under this Agreement if such delay or default is caused by conditions beyond its reasonable control, including but not limited to, fire, flood, accident, earthquakes, telecommunications line failures, electrical outages, network failures, acts of God, or labor disputes (“Force Majeure”). To the extent that a Force Majeure has continued for five (5) business days, either party may terminate the Agreement or associated IPC without penalty.
ADDITIONAL TERMS THAT APPLY TO THE VIDEO (INSTREAM) NETWORK
The following terms supplement the Advertising.com T&C and apply only to delivery of Video Creatives available through the Video Network (“Video Network Supplemental Terms”). In the event of any inconsistency between the Advertising.com T&C and the Video Network Supplemental Terms, the Video Network Supplemental Terms shall control.
1. Excess Inventory. In the event that Publisher has available video advertising space within the Publisher Web Site(s) not otherwise having been filled by Publisher (“Excess Inventory”), Publisher, at its option, may elect to attempt to fill such Excess Inventory with Video Creatives offered by Advertising.com.
2. Selection of Video Creatives. Advertising.com will notify Publisher in writing, including via e-mail, to Publisher’s designated representative(s), the details of each currently available Video Creative campaign, including advertiser, advertising rate, flight dates, and the associated Video Creative (if available) (“Advertising Notice”). If Publisher chooses to accept a campaign, it shall notify Advertising.com of such acceptance, in writing, including via facsimile or e-mail. Publisher’s participation is non-exclusive and all Excess Inventory is preemptible at Publisher’s sole discretion. Acceptance of a Video Creative campaign does not guarantee that any Video Creatives will be served.
3. Delivery of Video Creatives. All Video Creatives available through the Video Network shall be served by the Video Network third party ad server.
ADDITIONAL TERMS THAT APPLY TO THE MOBILE (THIRD SCREEN MEDIA) NETWORK
The following terms supplement the Advertising.com T&C and apply only to delivery of Mobile Creatives available through the Mobile Network (“Mobile Network Supplemental Terms”). In the event of any inconsistency between the Advertising.com T&C and the Mobile Network Supplemental Terms, the Mobile Network Supplemental Terms shall control.
1. Publisher Mobile Sites. During the term of this Agreement, Publisher will use its reasonable commercial efforts so that the Publisher Mobile Sites are available for the display of Mobile Creatives on a 24-hour, 365-day basis, subject to reasonable scheduled and unscheduled maintenance and any service disruptions due to Force Majeure. In the event such Publisher Mobile Web Sites are not available, Publisher agrees that Advertising.com may provide Advertisers with free bonus/make-good Impressions where warranted.
2. Advertising Sales Process.
(a) Notice of Inventory. Publisher shall keep Advertising.com advised of the Impressions available for the display of Mobile Creatives (“Mobile Advertising Inventory”), including by providing at least fourteen (14) days’ notice of material increases or decreases in Mobile Advertising Inventory. Publisher agrees that reservations, if any, placed by Advertising.com for pre-sold Mobile Advertising Inventory will be honored by Publisher and all Mobile Advertising Inventory will be available on a “first-come, first-served” basis.
(b) Advertising Guidelines. All Mobile Creatives shall comply with the advertising guidelines published by the Mobile Marketing Association from time to time and in accordance with the terms of the Agreement.
(c) Hosting and Serving Mobile Creatives. Advertising.com will be the exclusive provider of software and communications infrastructure to host and serve Mobile Creatives that it sells to appear in Mobile Advertising Inventory sold by Advertising.com. Advertising.com shall use its reasonable commercial efforts so that Mobile Creatives are available to be served in Mobile Advertising Inventory on a 24-hour, 365-day basis, subject to reasonable scheduled and unscheduled maintenance and any service disruptions due to Force Majeure.
4. Implementation Services and Other Services. In addition, upon request by Publisher, and only upon the agreement of Advertising.com, the parties may agree from time to time that Advertising.com may provide additional services related to the Agreement. Any such services, and the fees payable, shall be described in writing (a “Statement of Work”). Advertising.com shall be under no obligation to provide additional services except as set forth in a Statement of Work signed by the parties. Publisher shall provide reasonable assistance to Advertising.com in the completion of all such services.
ADDITIONAL TERMS THAT APPLY TO CERTAIN PUBLISHER PORTAL ACTIVITIES
The following terms supplement the Advertising.com T&C and apply only to Publishers who are selecting Creatives through the Advertising.com Publisher Portal or who have been approved for the Tiered Pricing Program (“Publisher Portal Supplemental Terms”). In the event of any inconsistency between the Advertising.com T&C and the Publisher Portal Supplemental Terms, the Publisher Portal Supplemental Terms shall control.
1. Restrictions. Publisher agrees to use the Currently Available Creatives only in accordance with the traffic instructions set forth at the time of selection, and only on Web Sites that have been specifically approved by Advertising.com pursuant to these Advertising.com T&C. Publisher shall not use Creatives previously selected from the Currently Available Creatives for delivery in Publisher’s Web Site(s) at later dates, unless such Creatives continue to be available in the then Currently Available Creatives for such Web Site(s) AND such Creatives have Units remaining for delivery. Publisher shall not purchase keywords from search engine service providers with the intent and purpose to drive traffic to Creatives selected by Publisher or Landing Pages, including, but not limited to, purchasing keywords that include the trademark, service mark, or brand name of the advertising client to which the applicable Creative relates, or any derivative of any such trademark, service mark, or brand name (“Advertiser Marks”), or purchasing online advertising inventory for purposes of running advertisements that include Advertiser Marks on Web Sites or within emails.
2. Publisher Obligations. PUBLISHER AGREES TO REVIEW THE AVAILABILITY OF CREATIVES THAT THEY HAVE PLACED WITHIN THEIR WEB SITE(S) ON A REGULAR AND TIMELY BASIS. IT IS THE PUBLISHER’S SOLE RESPONSIBILITY TO CHANGE CREATIVES WITHIN THEIR WEB SITE(S) WHEN A CREATIVE IS NO LONGER AVAILABLE IN THE NETWORK OR HAS NO UNITS REMAINING FOR DELIVERY. ADVERTISING.COM ASSUMES NO RESPONSIBILITY TO NOTIFY A PUBLISHER WHEN AN ADVERTISEMENT IS NO LONGER AVAILABLE IN THE NETWORK OR HAS NO UNITS REMAINING FOR DELIVERY. ANY NOTIFICATION PROVIDED BY ADVERTISING.COM IS FOR THE CONVENIENCE OF PUBLISHER AND DOES NOT ABROGATE PUBLISHER’S OBLIGATIONS HEREUNDER.
3. Additional Payment Terms. Advertising.com reserves the right to pay Publishers only for Units delivered on approved Web Site(s) which were appropriately selected and delivered from the then Currently Available Creatives, and for Units which were delivered on approved Web Site(s) using the Run of Network code. Payment for advertisements will be made based upon payout rate as set forth in the online interface, depending on the Currently Available Creatives selected by Publisher. Subject to the terms for Web Site Creative payout rates below, payout rates on Creatives selected by Publisher from the Currently Available Creatives shall be honored from the time such Creatives are selected and pulled by Publisher provided the particular Creatives selected by Publisher have Units remaining for delivery. ADVERTISING.COM RESERVES THE RIGHT, IN ITS SOLE DISCRETION, TO CHANGE THE PAYOUT RATES ON ANY CREATIVE SELECTED BY PUBLISHER WHICH IS DELIVERED ON PUBLISHER’S WEB SITE(S) UPON TWENTY-FOUR HOURS (24) HOURS NOTICE WHICH NOTICE SHALL APPEAR IN THE “SITE TASKS” SECTION OF PUBLISHER’S ACCOUNT AT HTTP://PUBLISHER.ADVERTISING.COM (“NOTICE PERIOD”). PUBLISHER UNDERSTANDS AND AGREES THAT ANY SUCH CHANGE TO PAYOUT RATES SHALL BE EFFECTIVE, AND SHALL BE APPLIED TO ANY UNITS DELIVERED BY PUBLISHER, AFTER EXPIRATION OF THE NOTICE PERIOD. iT IS PUBLISHER’S SOLE RESPONSIBILITY TO CHECK THE “SITE TASKS” SECTION OF PUBLISHER’S ACCOUNT FOR ANY PAYOUT RATE CHANGE NOTICES AND TO REMOVE a CREATIVE FROM PUBLISHER’S WEB SITE(S) PRIOR TO EXPIRATION OF A NOTICE PERIOD, IF PUBLISHER DOES NOT WANT TO BE EFFECTED BY A PAYOUT RATE CHANGE.
4. Tiered Pricing Program Payment Terms. The following terms shall apply to Publishers who have been approved to participate in Advertising.com’s Tiered Pricing Program.
(a) Payment to Publisher shall be based on either a tiered CPM pricing model or on a revenue share basis, depending on performance.
(b) All delivery shall be subject to frequency capping and geo-targeting restrictions established by Advertising.com in its sole discretion.
(c) Pricing shall be established by Advertising.com prior to any delivery by Publisher and may be different for each of Publisher’s Web Sites and Creative sizes. Unless otherwise agreed to in writing by Advertising.com, the initial price for which Publisher shall be paid for delivery on Publisher’s Web Site will be the middle CPM tier established by Advertising.com for such Web Site and Creative size.
(d) Notwithstanding the foregoing, Publisher understands that during the term of the Agreement Advertising.com will evaluate the performance of Publisher’s inventory and, based on Advertising.com’s analysis of such performance, Advertising.com reserves the right, in its sole and absolute discretion, to (i) adjust the CPM price for which Publisher shall be paid for delivery on one or more of Publisher’s Web Sites or Creative sizes to a different tier; (ii) adjust the tiered CPM pricing; (iii) move Publisher from CPM pricing to payment based on a revenue share basis or vice-versa; and (iv) modify frequency capping and geo-targeting restrictions for one or more of Publisher’s approved Web Sites and Creative Sizes; in each case at any time, with or without notice to Publisher.
(e) Any Impressions delivered by a Publisher that are delivered outside of the frequency cap and geo-targeting restrictions established by Advertising.com shall, at Advertising.com’s discretion, be either (i) accepted by Advertising.com with payment to Publisher based on a fixed revenue share percentage determined by Advertising.com; or (ii) returned to Publisher via a redirect link provided or approved by Publisher.
ADDITIONAL TERMS THAT APPLY TO AFFILIATE LEAD GENERATION
The following terms supplement the Advertising.com T&C and apply only to Creatives hosted by Publisher on certain pre-approved Landing Pages hosted by Publishers, to generate Actions and collect Action data, in each case, on behalf of Advertising.com’s advertising clients who use Advertising.com’s affiliate lead generation advertising services (the “Affiliate Lead Generation Supplemental Terms”). In the event of any inconsistency between the Advertising.com T&C and the Affiliate Lead Generation Supplemental Terms, the Affiliate Lead Generation Supplemental Terms shall control.
1. Approval Requirements. Creatives may not be placed on any Landing Page not specifically approved by Advertising.com. In addition, the Landing Page, the Creative set-up on Publisher’s Landing Page, and the process for generating Actions are each subject to Advertising.com’s prior written approval and, in each case, screen shots of the approved Landing Page, Creative set-up and process for generating Actions must be provided to Advertising.com prior to delivery of any Units. Publisher may not make any changes to the Landing Page, THE Creative set-up, or the process for generating Actions without Advertising.com’s prior written approval. Publisher understands and agrees that should ADVERTISING.COM DETERMINE IN ITS SOLE DISCRETION THAT Publisher HAS MADE changes to the approved Landing Page, the Creative set-up, or process for generating Actions without the prior written approval of Advertising.com, ADVERTISING.COM SHALL NOT PAY Publisher for any Actions delivered to Advertising.com after such unapproved changes are made by Publisher. To insure compliance with these terms and conditions, and notwithstanding the generality of the foregoing, any Publisher that materially changes their Web Site content after approval for membership MUST notify Advertising.com of the changes in writing IMMEDIATELY. Notices should be sent to Publisher’s Account Manager or to publisher@advertising.com.
2. Collection/Ownership of Data. Publisher understands that all Action data, including, but not limited to, personally identifiable information provided by individual web users on the Landing Page in response to a Creative, is the sole and exclusive property of advertiser for which such Creative relates, is subject to such advertiser’s current privacy policy, and is considered Confidential Information of such advertiser and Advertising.com and must be protected in a manner consistent with this Agreement including Section 10 of the Advertising.com T&C. Publisher shall not make any use of, copy, make derivative works from, sell, transfer, lease, assign, redistribute, disclose, disseminate, or otherwise make available in any manner, such information, or any portion thereof, to any third party. Unless otherwise agreed to in writing by the parties, any other use of such information is strictly prohibited.
3. Representations and Warranties. Publisher represents and warrants that it shall not intentionally solicit, induce, recruit, encourage, directly or indirectly, any advertiser that is known to Publisher to be an advertising client and/or customer of Advertising.com (e.g., an advertiser whose Creative is placed on Publisher’s Web Site through the Service), for purposes of offering products or services that are competitive with Advertising.com (including the provision of advertising inventory) nor contact such advertisers for any purpose, during the term of this Agreement and for the ninety (90)-day period following termination of the Agreement, provided however, that the foregoing restriction shall not apply to advertisers with whom Publisher has maintained a Continuous Engagement for the six (6) month period prior to entering into this Agreement, as explicitly proven by documented evidence of such Continuous Engagement provided by Publisher to Advertising.com immediately upon Advertising.com’s written request. For purposes of this Agreement, “Continuous Engagement” shall mean the relevant advertiser entered into an agreement directly with Publisher to place such advertiser's Creatives on inventory owned or managed by Publisher.
4. Delivery of Action data. Publisher shall transmit all Action data to Advertising.com on daily basis or as otherwise agreed to by the parties in writing. Advertising.com shall designate to Publisher the required data format for the delivery of the Action data. Action data may NOT be delivered via unencrypted email. Actions submitted (i) with invalid or false information, or (ii) not in the required data format, shall not be eligible for payment. Unless otherwise specifically agreed to by the parties in writing, Actions already in Advertising.com’s advertiser client’s database at the time the Action is delivered by Publisher shall not considered valid Actions and shall not be eligible for payment (“Duplicates”). Each month, Advertising.com shall report to Publisher the number of payable Actions on a bi-weekly basis, or as otherwise agreed to by the parties in writing, which report, if requested by Publisher, shall also include a detailing of Duplicates and Actions that are not payable due to invalid or false information or due to improper formatting.
5. Modification of Action. Publisher agrees that from time to time during the term of the IPC, Advertising.com may increase or decrease (i) the number of Actions that it will accept and compensate Publisher, and/or (i) the CPA amount that Advertising.com will pay Publisher for Actions. Advertising.com will provide Publisher with at least one (1) business day prior written notice of such changes (the “Notice Period”) by email to Publisher at the contact address set forth in the IPC (the “Change Notice”). Subject to Publisher’s approval within the Notice Period, Publisher agrees that all such changes in the Change Notice will be effective as of the expiration of the Notice Period. If Publisher either rejects the Change Notice or fails to provide written approval of the Change Notice prior to the end of the Notice Period, Advertising.com may, at its sole option, terminate the IPC upon notice to Publisher.
6. Special Terms for PPC Authorized Campaigns. Publisher agrees to strictly comply with any Advertiser campaign restrictions or terms set forth in the Campaign Details for such Advertiser, including, but not limited to, all restrictions and limitations on search/keyword bidding. Publisher is wholly responsible and liable for the use of any keywords and for all search bidding activity undertaken by Publisher and agrees to indemnify Advertising.com for such use and activities in accordance with the Terms and Conditions.