1) PARTIES
Pursuant to this Agreement, CPA Market ("We" or “CPA Market”)
and you ("You" or "Publisher") agree to the following
terms and conditions for the receipt of advertising materials ("Creatives")
from advertising Clients ("Clients" or "Advertisers").
This includes the serving, tracking and reporting of each Campaign made
on the websites of the CPA Market network of publishers (the "Network").
2) USE POLICY
(a) Membership: Membership in the Network is subject to prior approval
of CPA Market. We reserve the right to refuse service to any new or existing
Publisher for any reason, in its sole discretion. Approval of membership
in the Network is limited only to the specific root URLs (the "Websites")
for which Publisher has applied for approval by CPA Market. We reserve
the right, in our sole discretion and without liability, to reject, omit
or exclude any Publisher or Website for any reason at any time (including,
without limitation, if a Website's text is in a foreign language), with
or without notice to the Publisher and regardless of whether such Publisher
or Website was previously accepted. Without limiting the foregoing, CPA
Market reserves the right to require potential or existing publishers
to submit detailed descriptions or explanations of the Publisher’s
website(s) or application(s) functionality and backend technology through
a questionnaire or survey. Refusal to participate or answers deemed unsatisfactory
constitutes grounds for non-acceptance or termination from the network.
In addition, in all Websites in the Network must maintain a privacy statement
acceptable to CPA Market. If Publisher is an individual, Publisher must
be at least 18 years of age.
(b) Representation: Publisher represents and warrants that the Websites:
(1) are owned by or licensed to Publisher and Publisher has the right
to use the entire contents and subject matter contained in the Websites;
(2) do not violate any law, statute, ordinance, treaty or regulation;
(3) do not infringe in any manner any copyright, patent, trademark, trade
secret or other intellectual property right of any third party; (4) do
not breach any duty toward or rights of any person or entity including,
without limitation, rights of publicity or privacy, and have not otherwise
resulted in or are not likely to result in any consumer fraud, product
liability, tort, breach of contract, injury, damage or harm of any kind
to any person or entity; (5) are not false, deceptive or misleading; (6)
are not defamatory, libelous, slanderous or threatening; and (7) are free
of viruses, Trojan horses, trap doors, back doors, Easter eggs, worms,
time bombs, cancelbots, "spyware" and other computer programming
routines that may potentially damage, interfere with, intercept, or expropriate
any system, data or personal information. Publisher also represents, warrants
and covenants that: (i) Publisher has the power and authority to enter
into and perform its obligations under this Agreement; (ii) Publisher
shall not be in violation of any obligation, contract or agreement by
entering into this Agreement, by performing its obligations hereunder
or by authorizing and permitting CPA Market to perform the services hereunder;
(iii) Publisher shall comply with all of the terms and conditions of this
Agreement, as amended from time to time; (iv) all information provided
by Publisher to CPA Market or posted on the Websites by Publisher is truthful,
accurate and complete, and is not misleading in any way; (v) CPA Market
is hereby authorized by Publisher to perform all the services described
hereunder with respect to Publisher and the Websites; (vi) upon request
by CPA Market, Publisher shall promptly provide a written statement in
form acceptable to CPA Market confirming our authority hereunder; and
(vii) Publisher shall not upload, post, email, transmit or otherwise make
available any content, material, data, work, designation, trade or service
mark, tradename, link, advertising or services that actually or potentially
(a) violates any applicable law or regulation, including, without limitation,
false advertising or unfair competition under the law of any jurisdiction,
(b) infringes or misappropriates any proprietary, intellectual property,
contract or tort right of any person, or (c) to a reasonable person, may
be abusive, obscene, pornographic, defamatory, invasive of privacy, harassing,
grossly offensive, vulgar, threatening, malicious, otherwise objectionable
or in way derogatory about CPA Market or any other party. Publisher grants
CPA Market and the customer the right and license to transmit the Creatives
to the Websites.
(c) Termination: CPA Market reserves the right to terminate any Publisher's
relationship with the Network at any time, with or without cause, including,
without limitation, for reasons set forth in Section 2(e) below. Termination
notice may be provided in person or via email, facsimile or mail (either
regular mail or overnight courier) and will be effective immediately upon
receipt. Upon receipt of such termination notice, Publisher agrees to
immediately remove from the Websites any and all of CPA Market’s
software code supplied to Publisher for serving Creatives from CPA Market
or otherwise (collectively, the " CPA Market Code"). Publisher
will be paid, in the next scheduled payment cycle following termination,
all legitimate, non-fraudulently accrued, earnings due up to the time
of termination. Upon termination all ties to referrals will be permanently
severed and Publisher will not receive nor be entitled to receive future
referral commissions hereunder.
(d) Content: CPA Market reserves the absolute right to refuse to affiliate
with any Publisher. We do not accept Websites that produce or provide
adult content. We do not accept Websites that engage in, promote or facilitate
illegal or legally questionable activities such as pirating and hacking.
We do not accept Websites that are: under construction, hosted by a free
service, personal home pages, or do not own the domain they are under.
CPA Market Code shall not be used on Websites that contain forums, discussion
boards, chat rooms, or any content area that is open to public updates
without regulation. This Agreement is voidable by CPA Market immediately
if Publisher fails to disclose, conceals or misrepresents itself in any
way. In addition, CPA Market may in its sole discretion refuse to serve
any Website that it deems inappropriate. To insure compliance with this
Agreement, any Publishers that change their content after approval for
membership MUST notify CPA Market of the changes in writing IMMEDIATELY.
(e) Traffic: CPA Market reserves the right to terminate Publisher’s
relationship immediately should either (a) the number of Impressions delivered
by Publisher total less than 2,500 per month, or (b) the unique Click
Through Rate equals .25% or less for any fourteen (14) consecutive calendar
day period, or (c) Publisher’s traffic falls below the threshold
established by CPA Market from time to time. We reserve the right to change
the minimum CTR at any time in response to market pressures.
(f) Defaults: Publisher acknowledges and agrees that CPA Market may not
be able to fill 100% of advertising requests sent to its servers with
paying ads. We provide free Publisher-defined default redirects expressly
for this reason. Publisher-defined defaults ads must adhere to the content
guidelines outlined for all CPA Market Advertisers (no adult content,
etc.) Publishers found using default ads that violate the content restrictions
of the Client Agreement will be removed from the network. If Publisher
chooses not to specify a default redirect, CPA Market will display so-called
'house' and/or 'AdCouncil' ads on Publisher's website when paid advertising
is unavailable. CPA Market may also display so-called 'house' and/or 'AdCouncil'
ads on Publisher's Websites when technical difficulties require it. So-called
'house' and 'AdCouncil' ads are not paid advertising. Under no circumstances
does CPA Market guarantee to provide any percent fill of paid advertising
to a Website.
(g) Placement: Publisher shall be solely responsible for placing Creatives
on the Websites, which placement shall be subject to the terms and conditions
of this Agreement. No Creative may be placed on any root URL not specifically
approved by CPA Market for membership within the Network. Banner, Leaderboard,
Skyscraper, and Wide Skyscraper Creatives must be placed within 600 pixels
of the top of the Webpage (above the page scroll/fold). CPA Market pop-under
windows cannot be launched from websites that launch more than a total
of two pop windows, including the CPA Market pop-under. Skyscrapers or
wide skyscrapers and half page formats cannot be placed on the same page.
Text Ads are limited to a total of seven text links per page in any combination
of stand alone and/or multiple links. No Publisher will place ads on blank
pages, on pages with no content, on top of one another, on non-approved
Websites, or in such a fashion that may be deceptive to the visitor. Creatives
cannot be placed in email messages. In-page Creatives (Banners, Leaderboards,
Skyscrapers, Wide Skyscrapers, Rectangles, Medium Rectangles, Half Pages,
Text Ads) may not be placed on forums, chat rooms, and other entities
that the Publisher does not have complete control of. Interstitial and
Pop-under Creatives may be placed on forums and chat rooms.
(h) Fraud and Deception: CPA Market audits every Publisher's traffic on
a daily basis. Publishers that commit fraudulent activities, including
false clicks, false impressions, and incentivize clicks, will have their
account permanently removed from the Network and will not be compensated
for fraudulent traffic. Additionally, CPA Market reserves the right to
register fraudulent Publishers in a global ad network fraud database,
for usage by other ad networks. We have several fraud mechanisms at our
disposal that will detect most forms within a few days of the initial
activity. All proceeds from accounts with fraudulent activity will be
refunded to Advertisers. All Creatives must be served from a CPA Market
server or serving location, or through a CPA Market approved 3rd-party-hosted
server. Stored images that are loaded from a different location will not
count towards any statistic or payment. Publishers agree to not artificially
inflate traffic counts using a program (including scripts), device, or
other means. Excessive page reloading or any other abuse of our system
could result in legal action. No Publisher shall induce visitors to click
on Creatives based on incentives, provided, however, that, with the prior
written approval of CPA Market, certain language may appear above or below
an advertisement served by CPA Market. Without limiting the foregoing,
the following methods of generating visitor interest are unacceptable
to CPA Market and may be grounds for dismissal from the Network: use of
unsolicited email or inappropriate newsgroup postings to promote your
Website; auto-spawning of browsers; automatic redirecting of users; clicking
on your own banners; blind text links; misleading links; or any other
method that may lead to artificially high numbers of impressions or clicks.
(i) Code: CPA Market Code shall not be modified without prior written
consent from CPA Market. Publisher agrees to use the CPA Market Code provided
by CPA Market for displaying a Creative not more than ONCE per page view.
Ad codes cannot be placed in email messages. CPA Market Code cannot be
used on Websites that contain forums, discussion boards, or chat rooms.
Publisher cannot alter, copy, modify, take, sell, reuse, or divulge any
CPA Market Code, except as is necessary to partake in the Network, provided,
however, with the prior written approval of CPA Market, a Publisher may,
in certain instances, modify the CPA Market Code for purposes of inserting
certain language pre-approved by CPA Market either above or below an advertisement
served by CPA Market. Requests for language approval should be sent to
. Any modifications to CPA Market Code shall be owned solely by CPA Market.
Subject to the terms and conditions of this Agreement, CPA Market grants
you a world-wide, revocable, non-exclusive, non-transferable, non-sublicensable,
limited use license to use, execute, and display the CPA Market Code solely
for purposes of receiving and displaying the Creatives and performing
your other obligations hereunder. Except for the limited license expressly
granted in this Section, nothing in this Agreement shall be construed
as CPA Market granting you any right, title or interest in or to the CPA
Market Code or any right under any patent, trade secret or other intellectual
property rights of CPA Market. You acknowledge and agree that CPA Market
owns all right, title and interest in and to the CPA Market Code (including,
without limitation, all software and technology underlying any such product,
service, and/or information) and all related intellectual and proprietary
rights of any kind anywhere in the world. You agree that you will not
use the CPA Market Code, or the results created thereby, or disseminate
or distribute any of this information, except as expressly permitted by
this Agreement.
(j) Data Reporting (Stats): CPA Market owns all data collected by or through
Our code and/or any or all reports, results, and/or information created,
compiled, analyzed and/or derived by CPA Market from such data (collectively,
"Data"). All Data shall be deemed Our Confidential Information.
Any use by Publisher of such Data shall be only as expressly permitted
in this Agreement and in strict compliance with Our privacy policy. Publisher
may only access Data that is collected through the use of their inventory.
(k) Website Access: For purposes of this Agreement, all websites that
are owned, operated or hosted by or on behalf of CPA Market, including,
without limitation, CPA Market branded website at http://www.cpamarket.com,
are referred to herein collectively as the " CPA Market Websites."
You agree that you will not use the CPA Market Websites or any content
therein or data obtained therefrom for any other purpose and that you
will not disseminate any of this information. You agree that you will
not use any automated means, including, without limitation, agents, robots,
scripts, or spiders, to access or manage your account with CPA Market
or to monitor or copy the CPA Market Websites or the content contained
therein except those automated means expressly made available by CPA Market,
if any, or authorized in advance and in writing by CPA Market (for example,
CPA Market-approved third party tools and services). The CPA Market Websites
contain robot exclusion headers and you agree that you will not bypass
Our robot exclusion headers (including using any device, software or routine
to accomplish that goal), or to interfere or attempt to interfere with
the proper working of the CPA Market Websites or any program thereon,
or CPA Market system. Without limitation to the foregoing, you further
agree that you will not take any action that imposes an unreasonable or
disproportionately large load on the CPA Market Websites, any programs
thereon, or Our infrastructure, as determined by CPA Market.
(l) Trademarks: Our logos and trademarks and any future trademarks, service
marks or logos on all CPA Market Websites are trademarks of CPA Market
or Our licensors (the " CPA Market Brands"). Without the prior
written consent of CPA Market or its licensors, Publisher shall not display
or use in any manner any CPA Market Brands.
(m) Your Website: You hereby acknowledge that CPA Market is not responsible
for the content or maintenance of your Websites, or websites owned or
operated by any third party (including, without limitation, other advertisers),
nor is CPA Market responsible for order entry, fulfillment, payment processing,
shipping, cancellations, returns or customer service concerning orders
placed on your Websites or websites owned or operated by any third party
(including, without limitation, other advertisers). You represent, warrant
and covenant that all information you provide in connection with this
Agreement or on your Websites are, and will be, updated to remain, current
and accurate. You agree that your Websites do not contain any CPA Market-owned
or licensed content, including, without limitation, any CPA Market listings,
except pursuant to a separate signed agreement with CPA Market.
(n) Contact Information: To insure timely payment, Publishers are responsible
for maintaining the correct contact and payment information associated
with their account. Payment Profile information must be updated by the
last day of the month to be reflected in the next payment. This must be
done by Publisher online using Publisher's account. Any and all bank/service
fees associated with returned or cancelled payments due to any error in
the Publisher contact or payment information are Publisher's responsibility,
and will be deducted by CPA Market upon repayment of such returned or
cancelled payments.
(o) Privacy: In performance of the parties' obligations pursuant to this
Agreement, you agree not to transmit to CPA Market, its information providers,
licensors, licensees, consultants, contractors, agents, attorneys or employees,
and CPA Market shall not solicit or collect, any personally identifiable
information of the visitors or customers to your Websites unless required
by law or court order, or otherwise agreed in writing and signed by an
authorized representative of CPA Market. You represent, warrant, and covenant
that at all times while the CPA Market Code is on your Websites, you will
maintain a privacy policy on your Websites which shall (a) be available,
at a minimum, as a clear and conspicuous link from the main page of your
Websites and on all web pages where visitors' personally identifiable
information is collected, (b) obtain all rights and/or permissions necessary
for CPA Market to use the Data as contemplated under this Agreement, (c)
comply with all applicable laws and regulations, and (d) contain language
materially similar to the following:
"We have contracted with CPA Market LLC ("CPA Market")
to monitor certain pages of our website for the purpose of reporting website
traffic, statistics, advertisement 'click-throughs', and/or other activities
on our website. Where authorized by us, CPA Market may use cookies, web
beacons, and/or other monitoring technologies to compile anonymous statistics
about our website visitors. No personally identifiable information is
collected by or transferred to CPA Market. For more information about
how the information is collected and used by CPA Market, please see CPA
Market's privacy policy at http://www.cpamarket.com/privacy.html."
(p) Access: All hardware and software necessary for access to CPA Market
services and Creatives is Publisher’s responsibility. Publisher,
at its sole cost and expense, shall be solely responsible for providing,
maintaining and ensuring that all hardware, software, electrical and other
physical requirements for Publisher’s use of the services hereunder,
including, without limitation, telecommunications and internet access
connections and links, web browsers, bandwidth or other equipment, programs
and services required to access and use the services hereunder, are compatible
with the CPA Market Code.
(q) Traffic Limitations: Customer understands and agrees that from time
to time the CPA Market services hereunder may be inaccessible, unavailable
or inoperable for any reason, including, without limitation: (i) equipment
malfunctions; (ii) periodic maintenance procedures or repairs which CPA
Market may undertake from time to time; or (iii) causes beyond the control
of CPA Market or which are not reasonably foreseeable by CPA Market, including,
without limitation, interruption or failure of telecommunication or digital
transmission links, hostile network attacks, the unavailability, operation,
or inaccessibility of websites or interfaces, network congestion or other
failures. While CPA Market will attempt to provide the services on a continuous
basis, Publisher acknowledges and agrees that CPA Market has no control
of the availability of the services on a continuous or uninterrupted basis.
Publisher also understands and agrees that CPA Market is not responsible
for the functionality of any third party website or interface. Terms of
this agreement are subject to CPA Market hardware, software, and bandwidth
traffic limitations. Failure to deliver because of technical difficulties
does not represent a failure to meet the obligations of this contract.
3) PAYMENT POLICY
Standard CPA Market payment rate is up to 65% of campaign market rate.
Campaign rates vary with market conditions. We reserve the right to set
market rates. Market rates are less any payment transaction fees, campaign
referral fees, cost-of-money / bad-debt fees, and applicable ad serving
fees. We reserve the right to set and negotiate specific payment terms
on an individual basis. Publishers will typically be paid within twenty-five
(25) business days after the end-of-month. Do not invoice CPA Market;
all Publisher invoices are discarded. Publishers will be paid at the account
level. All accounts will be settled in US dollars ($US). No check will
be issued for any amount less than $25US. All unpaid earnings will rollover
to the next pay period. Any Publisher account that goes unpaid for six
(6) months becomes subject to immediate payoff and dismissal from the
Network. As a condition to Our obligation to make payments hereunder to
Publisher, Publisher must have a completed and accurate W-9 (for US-based
Publisher's) on file with CPA Market or a completed and accurate W-8 (for
non-US-based Publisher's) on file with CPA Market. Publisher payments
will be withheld until the appropriate taxation documents are on file
with CPA Market. Publishers cannot refer themselves as a Publisher or
as an Advertiser. Groups of Publishers cannot refer each other. All payments
are based on actuals as defined, accounted and audited by CPA Market.
In no event will payments be made on accounts that have not provided proper
tax identification information. We reserve the absolute right not to pay
any accounts or Publishers that violate any of the terms and conditions
set forth herein. CPA Market will be responsible for determining, in its
sole and absolute discretion, what acts and omissions violate this policy,
and which acts include activity that is deceptive or fraudulent in nature.
Examples of such acts may include, without limitation, clicks without
referring URLs, extraordinary high numbers of repeat clicks, and clicks
from non-approved root URLs."
4) LIABILITY POLICY
(a) Indemnification: Publisher is solely responsible for any legal liability
arising out of or relating to (i) the content and other material set forth
on the Publisher Websites and/or (ii) any content or material to which
users can link through the Publisher Websites (other than through an advertisement
supplied by CPA Market). Publisher hereby agrees to indemnify, defend
and hold harmless CPA Market and its information providers, officers,
directors, affiliates, licensors, partners, licensees, consultants, contractors,
agents, attorneys, employees, and third party service providers (each,
an " CPA Market Entity" and collectively, the " CPA Market
Entities") and employees from and against 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, 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 the Publisher Websites; (b) arising out of any breach by Publisher
of this Agreement (including any representation or warranty herein); or
(c) relating to a contaminated file, virus, worm, or Trojan horse originating
from the Publisher Websites, except for any of the foregoing directly
caused by CPA Market's gross negligence or willful misconduct. You agree
to be solely responsible for defending any claim against any CPA Market
Entity, subject to CPA Market's and such CPA Market Entity's right to
participate with counsel of its own choosing; provided that you will not
agree to any settlement that imposes any obligation or liability on CPA
Market's or any CPA Market Entity without CPA Market's prior express written
consent.
(b) Warranty Disclaimer: THE SERVICES HEREUNDER, THE DATA AND ALL OTHER
CPA MARKET WEBSITES, SYSTEMS AND CODE (COLLECTIVELY, THE "CPA MARKET
MATERIAL") AND ALL CREATIVES, THIRD PARTY WEBSITES, APPLICATIONS
AND/OR EMAILS (COLLECTIVELY, THE "THIRD PARTY PRODUCTS") ARE
PROVIDED OR MADE AVAILABLE BY FASTCLICK ON AN “AS IS” AND
“AS AVAILABLE” BASIS, AND CPA MARKET EXPRESSLY DISCLAIMS ALL
WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION,
ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
AND NON-INFRINGEMENT. PUBLISHER EXPRESSLY AGREES THAT PUBLISHER'S USE
OF THE CPA MARKET MATERIALS AND THIRD PARTY PRODUCTS, OR ANY PARTY THEREOF,
IS AT PUBLISHER’S SOLE RISK.
SPECIFICALLY, BUT WITHOUT LIMITATION, CPA MARKET MAKES NO REPRESENTATION
OR WARRANTY WITH RESPECT TO ANY OF THE FOLLOWING (AND CPA MARKET DISCLAIMS
ANY AND ALL RESPONSIBILITY FOR ANY LOSS, INJURY, CLAIM, LIABILITY, PENALTY
OR DAMAGE OF ANY KIND WHATSOEVER RESULTING FROM, ARISING OUT OF OR IN
ANY WAY RELATED TO THE FOLLOWING): (i) THAT THE CPA MARKET MATERIALS OR
THIRD PARTY PRODUCTS, OR ANY PART THEREOF, SHALL BE FREE OF ERRORS OR
OMISSIONS, INCLUDING, BUT NOT LIMITED TO, TECHNICAL INACCURACIES OR TYPOGRAPHICAL
ERRORS; (ii) THE AVAILABILITY, ACCURACY OR UNINTERRUPTED USE OF THE CPA
MARKET MATERIALS OR THE THIRD PARTY PRODUCTS OR ANY PORTION THEREOF, ANY
CONTENT THEREON OR ANY INTERFACE THERETO; (iii) THAT THE CPA MARKET MATERIALS
OR THIRD PARTY PRODUCTS, OR ANY PART THEREOF, ARE FREE OF DEFECTS, VIRUSES
OR OTHER HARMFUL COMPONENTS; (iv) ANY THIRD PARTY WEBSITES OR CONTENT
THEREIN DIRECTLY OR INDIRECTLY ACCESSED THROUGH HYPERLINKS CONTAINED IN
ANY CPA MARKET WEBSITE; (v) PUBLISHER’S USE OF THE ANY CPA MARKET
MATERIALS OR THIRD PARTY PRODUCTS; (vi) ANY INFORMATION, SERVICES OR PRODUCTS
PROVIDED OR AVAILABLE THROUGH OR IN CONNECTION WITH CPA MARKET, THIRD
PARTY PRODUCTS, CPA MARKET SYSTEMS OR CPA MARKET WEBSITES OR ANY RESULTS
OBTAINED THROUGH THE USE THEREOF, ANY INFORMATION, SERVICES OR PRODUCTS
PROVIDED OR AVAILABLE THEREFROM, OR WEBSITES LINKED THERETO OR THEREFROM;
OR (vii) THE SUCCESS OR RESULTS, ECONOMIC OR OTHERWISE, THAT MAY BE OBTAINED
BY USE OF, OR OTHERWISE AVAILABLE FROM, THE CPA MARKET MATERIALS OR THE
THIRD PARTY PRODUCTS, OR ANY PART THEREOF. SOME STATES DO NOT ALLOW THE
EXCLUSION OF IMPLIED WARRANTIES, SO ONE OR MORE OF THE ABOVE EXCLUSIONS
MAY NOT APPLY TO YOU. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS,
AND YOU MAY ALSO HAVE OTHER RIGHTS, WHICH MAY VARY FROM STATE TO STATE.
(c) Limitation of Liability: NEITHER CPA MARKET NOR ANY CPA MARKET ENTITY
SHALL BE SUBJECT TO ANY LIABILITY FOR DAMAGES CAUSED OR ALLEGEDLY CAUSED
BY ANY FAILURE TO PROVIDE REFERENCE OR ACCESS TO ALL OR ANY PART OF ANY
WEBSITE, DELAYS IN DELIVERY OR NON-DELIVERY OF CREATIVES, INCLUDING, WITHOUT
LIMITATION, DIFFICULTIES WITH A CUSTOMER OR CREATIVES, DIFFICULTIES WITH
A THIRD-PARTY SERVER, OR ELECTRONIC MALFUNCTION, ERRORS IN CONTENT OR
OMISSIONS IN ANY CREATIVE, FAILURE OF PERFORMANCE, OTHER ERROR, OMISSION,
INTERRUPTION, DELETION, DEFECT, FAILURE OF DELIVERY, DELAY IN OPERATION
OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATIONS LINE FAILURE, THEFT OR
DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR UNLAWFUL USE
OF RECORDS, WHETHER BASED ON BREACH OF CONTRACT, TORTUOUS BEHAVIOR, NEGLIGENCE,
OR UNDER ANY OTHER CAUSE OF ACTION OR THEORY. IN NO EVENT SHALL CPA MARKET
OR ANY CPA MARKET ENTITY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL,
CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, ARISING OUT OF THE AGREEMENT,
THE USE OR INABILITY TO USE ANY THIRD PARTY PRODUCT OR CPA MARKET MATERIAL
OR WEBSITES LINKED THEREFROM, OR FOR ANY BREACH OF WARRANTY. SOME STATES
DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN DAMAGES,
SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. YOU AGREE THAT
YOU WILL NOT HOLD CPA MARKET RESPONSIBLE FOR THE SELECTION OR RETENTION
OF, OR ANY ACTS, ERRORS, OR OMISSIONS BY, ANY THIRD PARTY IN CONNECTION
WITH ANY PROGRAMS, THIRD PARTY PRODUCTS, FASTCLICK SYSTEMS OR CPA MARKET
WEBSITES OR WEBSITES LINKED TO THEREFROM, INCLUDING, WITHOUT LIMITATION,
THIRD PARTY SERVICE PROVIDERS, THOSE WITH WHOM CPA MARKET CONTRACTS TO
OPERATE VARIOUS PORTIONS OF THE CPA MARKET SYSTEMS, AND/OR CPA MARKET
WEBSITES AND THOSE TO WHOM CPA MARKET PROVIDES LINKS FOR CONTENT, ADVERTISING
AND/OR ANY OTHER TYPE OF DATA OR INFORMATION. IN NO EVENT SHALL THE LIABILITY
OF CPA MARKET OR ANY CPA MARKET ENTITY FOR ANY DIRECT DAMAGES EXCEED $10,000.00
IN THE AGGREGATE.
5) GENERAL
(a) Applicability: In This Agreement, including all attachments which
are incorporated herein by reference, constitutes the entire agreement
between the parties with respect to the subject matter hereof, and supersedes
and replaces all prior and contemporaneous understandings or agreements,
written or oral, regarding such subject matter. The terms and conditions
of Sections 2(h), 2(i), 2(j), 2(k), 2(l), 2(m), 4, 5(a), 5(b), 5(c), 5(g),
5(i), 5(j), 5(k), 5(l), 5(m) and 5(n) shall survive the expiration or
termination of this Agreement. CPA Market shall have no liability under
this Agreement by reason of any failure or delay in the performance of
its obligations on account of strikes, shortages, riots, acts of terrorism,
insurrection, fires, flood, storm, explosions, earthquakes, internet outages,
computer virus, Acts of God, war, governmental action, or any other cause
that is beyond its reasonable control. Any rights not expressly granted
in this Agreement are reserved by CPA Market, and all implied licenses
are disclaimed. Headings used in this Agreement are for reference purposes
only and in no way define, limit, construe or describe the scope or extent
of such section or in any way affect this Agreement. Publisher will periodically
review CPA Market’s Website to ensure compliance with this Agreement
and CPA Market's Privacy Policy (as posted on or linked from a CPA Market
Website), either of which CPA Market may amend from time to time in its
sole discretion. Publisher agrees to be bound by any such amendment and
assumes the responsibility for periodically reviewing such the CPA Market
Website with respect thereto. Nothing contained in this Agreement will
prevent CPA Market from complying with privacy laws and regulations. CPA
Market reserves the right to discontinue offering any of CPA Market systems
and/or CPA Market Websites at any time. Except as otherwise specified
by CPA Market, you agree that you will direct all communications relating
to any CPA Market Website or your participation therein directly to CPA
Market and not to any other entity.
(b) Public Release: Publisher shall not release any information regarding
Campaigns, Creatives, or Publishers relationship with CPA Market or its
customers, including, without limitation, in press releases or promotional
or merchandising materials, without the prior written consent of CPA Market.
CPA Market shall have the right to reference and refer to its work for,
and relationship with, Publisher for marketing and promotional purposes.
No press releases or general public announcements shall be made without
the mutual consent of CPA Market and Publisher.
(c) Remedy: If any Publisher violates or refuses to partake in their responsibilities,
or commits fraudulent activity against us, CPA Market reserves the right
to withhold payment and take appropriate legal action to cover its damages.
(d) Audit: CPA Market shall have the sole responsibility for calculation
of Publisher earnings, including Impressions and click through numbers.
In the event Publisher disagrees with any such calculation, Publisher
shall send a written request immediately to CPA Market. detailing, with
reasonable specificity, Publisher's objections to calculations. Thereafter,
CPA Market will provide Publisher with an explanation or, if such calculations
are determined by CPA Market to be incorrect, an adjustment, of the numbers
which explanation or adjustment, as the case may be shall be final and
binding. In the event no adjustment is necessary, Publisher shall reimburse
CPA Market for its expenses in responding to Publisher's requests under
this Section.
(e) Privacy: CPA Market’s Privacy Policy is hereby incorporated
into this Agreement. Publisher shall be subject to and bound by all of
its terms and conditions as applicable.
(f) Assignment: No rights or obligations under this Agreement may be assigned
by Publisher without the prior written consent of CPA Market. Any assignment,
transfer or attempted assignment or transfer in violation of this Section
shall be void and of no force and effect. CPA Market and any of its subsequent
assignees may assign this Agreement, in whole or in part, or any of its
rights or delegate any of its duties, under this Agreement to any party.
This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective permitted successors and assigns. The parties
agree and acknowledge that no third party has or shall have any rights
as a third party beneficiary or otherwise arising from or relating to
this Agreement.
(g) Governing Law: This Agreement will be governed by and construed in
accordance with the internal laws of the State of California, without
regard or reference to the conflict of laws provisions thereof. Each party
hereto agrees that all disputes and litigation regarding this Agreement
and matters connected with its performance shall be subject to the exclusive
jurisdiction of the courts of the State of California located in Santa
Barbara, California or of the Federal courts sitting nearest thereto.
(h) Ability to Enter into Agreement: By executing this Agreement, Publisher
warrants that Publisher (or Authorized Representative of Publisher) is
at least 18 years of age, and that there is no legal reason that Publisher
cannot enter into a binding contract
(i) Confidentiality and Non-Disclosure: "Confidential Information"
means any information disclosed to you by CPA Market, either directly
or indirectly, in writing, orally or by inspection of tangible objects,
other than information that you can establish: (i) was publicly known
and made generally available in the public domain prior to the time of
disclosure to you by CPA Market; (ii) enters the public domain by being
made generally available after disclosure to you by CPA Market, other
than through your action or inaction; or (iii) is in your possession,
without confidentiality restrictions, prior to the time of disclosure
by CPA Market as shown by your files and records. You shall not at any
time (a) disclose, sell, license, transfer or otherwise make available
to any person or entity any Confidential Information (except to your employees
and agents who have a legitimate need to know such information and are
bound in writing by confidentiality and non-use restrictions not less
protective than those contained herein), or (b) use, reproduce or copy
any Confidential Information, except as necessary in connection with the
purpose for which such Confidential Information is disclosed to you and
in accordance with the Agreement. You agree to take all measures to protect
the secrecy, and avoid disclosure and unauthorized use, of the Confidential
Information. You may disclose Confidential Information if required by
law, provided that you give CPA Market prompt written notice prior to
such disclosure and you provide assistance in obtaining an order protecting
the information from public disclosure, and provided further that any
such disclosure is limited to the minimum extent necessary to comply with
the legally required disclosure. All Confidential Information shall remain
CPA Market 's personal property and all documents, electronic media and
other tangible items containing or relating to any Confidential Information
shall be delivered to CPA Market immediately upon CPA Market 's request,
and also, upon termination of this Agreement. You may not issue any press
release or other public statement regarding this Agreement, CPA Market,
and/or CPA Market 's affiliates, or partners without the prior written
consent of an authorized person at CPA Market.
(j) Independent Contractor: The relationship of the parties is and at
all times shall remain one of independent contractors. Neither party is
in any way a partner, joint venturer, affiliate, agent or representative
of the other for any purpose whatsoever, nor has the legal right or authority
to make any representation, warranty, promise, guaranty or agreement in
the name of or for the account of the other under this Agreement, except
as otherwise expressly authorized by a party under this Agreement.
(k) Notices: Except as expressly set forth herein, any notices to be given
by pursuant to this Agreement shall be in writing, signed by Publisher,
and sent by: (i) facsimile transmission; (ii) first class certified mail,
postage prepaid; (iii) overnight courier service, charges prepaid; or
(iv) email, to the party to be notified, addressed to CPA Market at the
following address, or sent by facsimile or by email to the following facsimile
number or email address, or such other address, facsimile number or email
address as CPA Market may have substituted by notice given to Publisher
as provide below in accordance with this provision. The receipt of such
notice shall constitute the giving thereof:
Any notice to be given to Publisher pursuant to this Agreement may be
sent by email to Publisher's email address as identified in Publisher's
account information or by posting on a CPA Market Website. The sending
of such notice shall constitute the giving of notice thereof.
(l) Waiver: No waiver of any term, provision or condition of this Agreement,
whether by conduct or otherwise, in any one or more instances, shall be
deemed to be, or shall constitute, a waiver of any other term, provision
or condition hereof, whether or not similar, nor shall such waiver constitute
a continuing waiver of any such term, provision or condition hereof. No
waiver shall be binding unless executed in writing by the party making
the waiver.
(m) Severability: If any provision of this Agreement is held or made invalid
or unenforceable for any reason, such invalidity shall not affect the
remainder of this Agreement, and the invalid or unenforceable provisions
shall be replaced by a mutually acceptable provision, which being valid,
legal and enforceable comes closest to the original intentions of the
parties to this Agreement and has like economic effect.
(n) Attorneys' Fees: If any action in law or in equity is necessary to
enforce this Agreement, the prevailing party will be entitled to reasonable
attorneys’ fees and costs and expenses in addition to any other
relief to which such party may be entitled.