TRAFFIC F S.R.O. - Web Traffic Agreement
Effective Date: August 1st, 2014
Last Modified: January 6th, 2017
PARTY DEFINITIONS: The operative Parties referred to in this Agreement are as follows:
Us, the Company – Traffic F s.r.o. (“Company”) is the owner or operator of a designated group of websites (“Network Sites”) which may provide or refer end users to third party websites that are promoted via the Network Sites (hereinafter the “Traffic Service”). The Company permits Advertisers, as defined below, to promote such third party websites under the terms and conditions of this Web Traffic Agreement (“Agreement”). Hereinafter, when first-person pronouns are used in this Agreement, (Us, We, Our, Ours, etc.) they are referring to Traffic F s.r.o. We may also be referred to as “Company” in this Agreement.
You, the Advertiser – This Agreement will refer to the owner or operator of any website(s) intended to be promoted via the Traffic Service as the “Advertiser,” “You,” or through any second-person pronouns, such as “Yours,” etc. Any website owned or operated by such Advertiser which will be promoted via Our Traffic Service shall be called a “Program Site.”
The Parties – Throughout certain provisions of this Agreement, Company and Advertiser shall be collectively referred to as the “Parties” or as a “Party” when referred to individually within the same provision.
WEHEREAS, we have a extensive experience and expertise in advertising for a well-informed public and have developed an online marketing program utilizing Our Traffic Service, (“Program”); and,
WHEREAS, You, the Advertiser, desire to participate in the Program; and,
WHEREAS, We permit the use of the Traffic Service to promote Your Program Site(s) by originating web traffic from one of Our Network Sites; and,
WHEREAS, by agreeing to the terms of this Agreement, You understand that You are merely requesting acceptance into the Program and that Your website(s) will not be considered Program Site(s) until Your request has been approved by Us and accepted into the Program;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, in consideration of the mutual covenants and conditions set forth herein, and with the intent to be legally bound thereby, the Parties hereby agree as follows:
This Agreement is a voidable contract as between You and Us, and We are not bound by its terms until such time as We accept You into the Program, and You receive written confirmation of the same. This Agreement and the provisions hereof, shall be in full force and effect commencing on the date You are accepted into the Program by Us and continuing until the Agreement is terminated in accordance with Section 4 of this Agreement. Your acceptance of the terms of this Agreement is effective upon submission of Your online registration application. Should You not be accepted into the Program, this Agreement will be considered void as between You and Us.
Defining This Agreement – This Agreement is a legal contract between You, (the Advertiser) and Us (the Company operating the Traffic Service and Program). You should treat it as any other legal contract by reading its provisions carefully, as they will affect Your legal rights. By assenting to this Agreement or by participating in the Program, You are affirmatively agreeing to be bound by all of the terms contained in this Agreement. You may not pick and choose which terms apply to You. If You do not agree to be bound by all of the terms in this Agreement, You must cease all activities contemplated by this Agreement, cease participation in the Program and pay any and all compensation or fees that may be due to Us pursuant to Section 6.
Electronic Signatures/Assent Required – You are not authorized to become a member of the Program as governed by this Agreement unless You have signed this Agreement and have been accepted into the Program by Us. Such signature does not need to be a physical signature, since electronic acceptance of this Agreement is permitted in most jurisdictions. You specifically acknowledge that this Agreement may be executed by electronic signatures. You manifest Your agreement to this contractual Agreement by taking any act demonstrating Your assent thereto. Most likely, You will click a button containing the words “I agree” or some similar syntax. You should understand that this has the same legal effect as You placing Your physical signature on any other legal contract. If We discover that You have not signed this Agreement, You will not be considered for acceptance into the Program as governed by this Agreement, and, if You are already a Program member, You will be terminated from the Program. Any funds otherwise due to Us will become immediately payable. If You fail to pay any fees due to Us within thirty (30) days of Our demand for payment, We will take legal action against You. Any execution of this Agreement in the manner set forth above, that has been approved by You, will be binding on You regardless of the specific agent or individual who manifests assent to the terms hereof on Your behalf.
Revisions to This Agreement:
From time to time, We may revise this Agreement. We reserve the right to do so, and You agree that We have this right. We agree that if We change anything in this Agreement, We will update the ‘Last Modified’ date listed at the top of this Agreement. You agree that all modifications or changes to this Agreement are immediately enforceable. Your continued use of the Traffic Service and participation in the Program shall constitute Your assent to any and all changed terms. The updated or edited version of this Agreement supersedes any prior versions immediately upon posting, and the prior version is of no continuing legal effect unless the revised version specifically refers to the prior version and keeps the prior version or portions thereof in effect. To the extent any amendment of this Agreement is deemed ineffective or invalid by any court, the Parties intend that the prior, effective version of this Agreement be considered valid and enforceable to the fullest extent.
Waiver– If You fail to periodically review this Agreement to You to determine if any of the terms have changed, You assume all responsibility for such omission and You agree that such failure amounts to Your affirmative waiver of Your right to review the amended terms, and acceptance thereof. You agree that We are not responsible for Your neglect of Your own legal rights.
Separation of the Parties:
Company and Advertiser are completely separate entities and neither shall be, nor represent themselves to be, a partner, franchiser, franchisee, broker, employee, servant, joint-venturer, agent, or representative of the other for any purpose whatsoever. No Party is granted any right or authority to assume or create any obligation or responsibility, express or implied, on behalf of, or in the name of, another Party, or to bind another in any manner or thing whatsoever.
Acting as an Advertiser in the Program does not mean that You are an employee of Company. You are specifically placed on notice that You are not an employee of Company. You are, at most, an independent contractor. You are responsible for all Internet access, computer equipment, modems, software, Program Sites, and other necessary requisites that You may need in order to access Our Traffic Service and/or function as an Advertiser in the Program.
TERM & TERMINATION OF AGREEMENT:
- Term – The term of this Agreement (“Term”) shall be for a period of one (1) year from the date of acceptance into the Program and shall be automatically renewed for successive one (1) year periods, unless and until either Party terminates this Agreement pursuant to the provisions in Section 4.2.
- Either Party may terminate this Agreement at any time, upon notifying the other of such termination, in writing, within thirty (30) days prior to the expiration of the current Term. In the event that You terminate the Agreement for any reason, You agree to pay Us any owed compensation as set forth in Section 6, or other fees due to Us pursuant to this Agreement.
- If We suspect, in Our sole discretion, that You, any of Your agents, affiliates, or employees have breached this Agreement, We shall notify You of such breach in writing. If You do not cure the breach within seventy-two (72) hours upon receiving this notice, We may elect to immediately terminate this Agreement without further notice or compensation to You. Notwithstanding the forgoing, We reserve the right to terminate this Agreement immediately, based upon a material breach by You, without further notice or compensation to You.
- Should You desire to terminate this Agreement for cause based on any alleged breach of the Agreement by Us, You agree to provide written notice to Us of such alleged breach, and permit Us ten (10) calendar days to cure the alleged breach. You further agree to cooperate with Us in the event the alleged breach requires Your participation or cooperation in order for Us to effectively cure. Notwithstanding any other provision in this Agreement, We accept no liability resulting from any breach for which You did not notify Us and provide the standard time to cure as required by this Agreement.
SPECIFIC GRANT OF LICENSE:
- You grant Us an unlimited, royalty-free, worldwide, non-exclusive, transferable license to run, display, copy, reproduce, publish, bundle, distribute, market, create derivative works of, adapt, translate, transmit, arrange, modify, host, make available to anyone, or otherwise use any data, intellectual property, content provided or created by You, or otherwise made available by You as an Advertiser, to permit Your use of the Traffic Service and/or participation in the Program (collectively, the “Advertising Campaign(s)”).
- Although, We take no ownership interest in any such Advertising Campaign, You hereby grant to us the above-referenced licensed rights for the purpose of promoting Your Program Site(s), and fulfilling Our obligations under this Agreement.
- The above license specifically anticipates and includes a license by You for Us to modify the submitted Advertising Campaign as necessary for creative, technical, or commercial reasons, including but not limited to: scaling images, creating thumbnail images, creating derivative images, shortening or otherwise revising text, and any other modification We deem necessary in Our sole discretion to adequately provide the Traffic Services. obligations under this Agreement.
- We acknowledge that all intellectual property rights in the Advertising Campaign and Program Site(s) belong to, or are licensed to You. You represent and warrant that You are the owner or duly authorized licensee of such intellectual property rights in the Advertising Campaign and Program Site(s), and that both are in full compliance with all federal, provincial, local and/or state laws, rules, regulations and ordinances, as well as, any third party release or governing licensing requirements. You further represent and warrant that You have the right to use any of the information or intellectual property used in creation of or published in the Advertising Campaign or Program Site(s), including any photograph, video, text, graphic, logo, trademark, trade name, service-mark, and/or patent rights, and You acknowledge that You are responsible for determining that such usage conforms in all respects to all applicable licenses, laws and regulations, including but not limited to the requirements of all local, state, provincial, and federal authorities. You agree to immediately notify Us upon withdrawal of, or change in, Your authority to use such intellectual property. obligations under this Agreement.
- Traffic Service Referrals – Our compensation for Your use of the Traffic Service is calculated based on each recorded click on Your Advertising Campaign by an end user, having occurred on a Network Site, resulting in such end user being redirected to Your Program Site(s) (hereinafter “Referral(s)”). We will use Our best efforts to promote the Program Site(s) via the Traffic Service, but We do not guarantee any specific results, amount of end users, web traffic, conversions, revenue, or number of Referrals. Any such numbers or amounts disclosed by Us or published by Us on the Network Sites, or in any Program promotional material shall be regarded as non-binding estimates.Further, You understand and agree that We may cease sending end users, web traffic and/or Referrals to Your Program Site(s) at any time, in Our sole discretion, and with no liability to You.
Traffic Service Referral Fees
- You agree that You will pay Us a monetary fee per each recorded Referral (the “Referral Fee(s)”). The amount of Referrals and associated Referral Fees shall be calculated via Our Traffic Service, therefore, should any dispute arise pertaining to the same, the data recorded or otherwise logged via Our Traffic Service shall govern. For Our current Referral Fee rates, please visit: www.trafficfactory.biz/fees. These rates are incorporated into this Agreement by reference.
- You specifically understand and agree that Your Referral Fee is based on unpredictable variables such as market conditions, traffic levels, consumer desires, and other factors, and therefore, the Referral Fee rates may be changed at any time. You understand and agree that the variable nature of the Referral Fee rates does not render this Agreement unenforceable and that the nature of the industry requires such flexibility.
- We provide Advertisers with several maximum spending features, using various numerical and/or temporal limitations and preferences to place a limit on the amount of Referrals generated from specific Advertising Campaign. Although We use Our best efforts to keep the number of Referrals and associated costs within the maximum amount designated by You, We cannot guarantee the uninterrupted accuracy of such features. Therefore, You understand and agree that You are responsible for paying for any Referrals that may exceed Your requested maximum number designated via certain Program features.
- You understand and agree that any and all Referral Fees due to Us are based solely on Referrals resulting from Advertising Campaigns generated by Your use of the Traffic Service, and not on Your ability to convert Referrals into sales or memberships to Your Program Site(s), or otherwise monetize the Referrals.
- Traffic Service Referral Fee Reports – We will provide You with various web traffic statistics for all Advertising Campaigns currently active in the Program (collectively, the “Traffic Report”). The Traffic Report may be accessed at any time by logging into Your account.
Advertiser Prepayment Obligations
- Advertisers are required to prepay for the use of Our Traffic Service on the monthly basis. Post-payments will not be permitted. In the event that an Advertiser fails to prepay for the upcoming billing cycle, We may suspend or terminate the relevant Advertiser account or apply a financial penalty at Our discretion.
- You must submit a minimum of five hundred U.S. dollars ($500.00) as an initial payment to participate in the Program.
- An electronic invoice is available at all times by accessing Your account. An invoice will be transmitted to You via email by request only. This invoice provides a summary of Your monthly Traffic Report and the resulting Referral Fees.
- All Advertiser payments, including without limitation, the initial payment and any subsequent service or Referral Fees, are to be in the form of the U.S. dollar or the Euro only, and transmitted via direct wire transfer or authorized third party payment processor (e.g.: Paypal or Paxum). Any payments made via Euro will be converted to the U.S. Dollar for accounting purposes.
- Should You have any concerns regarding Your invoice, Traffic Report, or any Referral Fees calculations associated with such, please contact Our customer service team at: www.trafficfactory.biz/contact-us.
- You understand and agree that We, in Our sole discretion and without liability to You, may suspend or terminate Your access to the Program and use of the Traffic Service if We determine, in Our sole discretion, that You have failed to or will fail to comply with Your payment obligations as set forth in this Agreement.
ACCEPTABLE USE POLICY:
- We will not represent Ourselves as an agent, partner, subsidiary, or employee of Yours, however We may make commercial references to You or Your Program Sites(s), including without limitation, naming Your Program Sites(s) as a participant in the Program. You agree that We may further display Your Program Site trademarks, service marks, graphics, logos and trade names in such context, and the license for such use is contained within this Agreement.
- You understand and agree that Your Program Site(s) promoted via the Traffic Service, shall not include, offer, promote, depict, or otherwise utilize the following material, products, or services in any manner, such as but not limited to:
- Illegal activity;
- Narcotics, alcohol, or use of the same;
- Password trading, distribution, or hacking;
- Adware, Spyware, or Malware;
- Link, promote, or otherwise reference any Network Sites;
- Ammunition, firearms, or weapons of any kind;
- ‘Tube’ website business model; and
- You, as the Advertiser, agree to be bound by the following general policies in connection with any and all Advertising Campaigns generated from Your account and Your participation in the Program:
- No material which is illegal, defamatory, obscene, harassing, or otherwise objectionable.
- No material that promotes or facilitates illegal activity, or violates the rights of others, such as copyright, trademark, patent, other intellectual property infringement, right to privacy, right to publicity, or other similar rights.
- No material representing an affiliation, express or implied, with any of the Network Sites without prior written consent from us. Such written documentation must be retained by Us, whether in digital or hardcopy format.
- No material replicating or attempting to replicate any of the Network Sites, distinctive features of the Network Sites, and format, design, or the overall aesthetic look and feel of any of the Network Sites
- No audio feature(s).
- No material utilizing any meta-tags, pay-per-click advertising, search engine terms, or other promotional campaigns that would imply or suggest that underage pornographic or illegal content may be found on Your Program Site(s), nor will You attempt to utilize the Traffic Service or Program for the same.
- No material that contains ‘Trojan Horses,’ viruses, malware, spyware, or the like, which cause or have the potential to cause damage to any computer or programs, regardless of the intent. You will be solely responsible for any damage caused by the aforementioned destructive materials.
- No automatic resizing of web browser frames.
- Clear representation of the company, product and brand associated with Your Program Site(s).
- You acknowledge and agree that Advertising Campaigns utilizing animated components and ‘pop under’ web displays may be subject to additional acceptable use restrictions. You agree to research the legality of Your use of any and all Advertising Campaign materials.
- You shall not engage in any fraudulent, deceptive, or unfair transactions and/or trade practices in connection with Your use of the Traffic Service or the Program. While We do not consent to the jurisdiction of U.S. governmental agencies, or any governmental agencies outside of Our local jurisdiction, We recommend that You comply with the United States Federal Trade Commission (“FTC”) statutes and regulations (if You do business in the United States or with United States-based customers), and any related rules, policies, and advisory opinions issued by the FTC.
- You shall not engage in any activities that may be harmful to the image, goodwill, or reputation of the Company.
- You shall not attempt to cheat, defraud, or mislead the Company, in any manner.
- We reserve the right to update the provisions in this Acceptable Use Policy at any time.
- We reserve the right, but not the obligation, to review and/or reject any Advertiser Campaign created and/or submitted by You, and You agree that You remain solely liable for any of Your Advertiser Campaign.
- Violation or suspected violation of any portion of the Acceptable Use Policy provisions is within Our sole discretion, and may result in Your termination from the Program. If You have violated any of the Acceptable Use Policy provisions, You agree to immediately remit any compensation and/or payment due to Us, pursuant to Section 6 of this Agreement. If You violate any portion of the Acceptable Use Policy, You hereby agree that You are responsible for any monetary damage incurred by Us in remedying the violation.
- SPECIAL CONSIDERATIONS REGARDING MINORS:
- Section 230 Notice
- You acknowledge Your responsibility to prevent minors under Your care from accessing harmful or inappropriate material on Your Program Site(s). You agree not to allow minors to view any such material, and agree to take responsible measures to prevent them from doing so. Numerous commercial online safety filters are available which may help users limit minors’ access to harmful or inappropriate material. Pursuant to 47 U.S.C. §230(d), You are hereby informed that You can research such services at websites such as: www.getnetwise.org or www.rtalabel.org, among others. Please note that Company makes no representation or warranty regarding any of the products or services referenced on such sites, and recommends that the user conduct appropriate due diligence before purchasing or installing any online filter.
- The Company reserves all objections to the extraterritorial application of the laws of other nations aside from its host jurisdiction. Noting such objections, with regard to any claims based on U.S. law, online service providers and/or interactive computer services enjoy certain protection and immunity from claims based on content provided by third parties. Pursuant to the Communications Decency Act (“CDA”), 47 U.S.C. § 230(c)(1), and court decisions interpreting the scope of the CDA, You acknowledge and understand that Company operates as the provider of an interactive computer service. Thus, Company is immune from, and cannot be held responsible for, claims under U.S. law arising from the publication of Your content (including third-party content published on Your Program Site(s)). Company does not create such content, and it is not responsible for the publication of remarks or communications of You or third-parties that may arguably rise to the level of being actionable under U.S. federal or state laws including, but not limited to, the publication of material that might be considered defamatory, or violative of privacy or publicity rights. Note, that U.S. federal law, and the policies underlying same, allow the Company to remove any content found to be offensive, defamatory, obscene or otherwise violative of Company’s policies, without impacting Company’s immunity status as the provider of an interactive computer service. Nothing contained in this paragraph is intended to limit or alter the immunity from claims provided by Section 230 of the Communications Decency Act. In the event that any court finds that any third-party communication or third-party content linked to by Company falls outside of the realm of the immunity provided by the CDA, this shall not be deemed to be a waiver of any legal protections provided by Section 230 for any and all other content linked to or promoted via our Services, such as Your Program Site(s). Nothing contained in this section, or this Agreement, shall be interpreted as consent to application of U.S. law, or any laws other than those of the Company’s host jurisdiction.
- WE HAVE A ZERO-TOLERANCE POLICY FOR CHILD PORNOGRAPHY AND A ZERO TOLERANCE POLICY REGARDING PEDOPHILES OR ANY PEDOPHILIC ACTIVITY.
- In order to further Our zero-tolerance policy, You understand and agree that We will report any images, real or simulated, that appear to depict minors on any Program Site(s).
- We voluntarily cooperate with law-enforcement agencies investigating child pornography, and engage in best efforts to voluntarily comply with Title 18 U.S.C. 2258A relating to the mandatory reporting of actual child pornography of which We become aware. If You suspect other outside websites are participating in unlawful activities involving minors, please report them to a child pornography reporting service such as ASACP.org; http://www.asacp.org/index.php?content=report or the N.C.M.E.C. Cybertip Hotline:https://report.cybertip.org/index.htm.
- In an effort to combat child pornography, any content appearing on Program Sites MUST comply with the requirements of 18 U.S.C. § 2257 et seq., and 28 C.F.R. Part 75 et seq., as amended (“Section 2257”) as it applies to any materials used in connection with the Program or the Program Websites. All such content must also be compliant with other applicable federal, state, local, and/or foreign laws. You represent and warrant that Your Program Site(s) is/are compliant with Section 2257 and/or other applicable laws in Your jurisdiction. You acknowledge that if it is Your legal obligation to comply with the records keeping and disclosure provisions of Section 2257, You must provide the information required by the disclosure provisions for each 2257-triggering depiction appearing on Your Program Site(s), and maintain all required age records, URLs, and other necessary information, indexed in the required manner. You further agree and represent that if You are in a foreign jurisdiction that does not require records under Section 2257 that You will keep any records which may be required under that jurisdiction’s applicable laws. Additionally, You agree and represent that if You are in a foreign jurisdiction that does not require maintenance of records under Section 2257, but Your Program Site(s) are accessible from United States of America, that You will nonetheless voluntarily comply with these obligations as a material term of this Agreement. As noted above, nothing contained herein is intended to consent to the application of U.S. law to the Company.
- REPRESENTATIONS & WARRANTIES:
- You, as the operator of Your Program Site(s) and the Advertiser creating Your Advertising Campaign, represent and warrant that any such Program Site(s) and Advertising Campaign are lawful and adhere to the applicable Acceptable Use Policy provisions as outlined above in Section 7 of this Agreement. As explained above, to the extent 47 U.S.C. §230 is deemed to apply to Us and/or the Traffic Service or Program, We are not responsible for materials not created by Us whether or not such materials appear on or perceived as affiliated with Our Network Sites.
- You represent that You have the requisite power and authority to enter into this Agreement and perform the obligations set forth herein and that You are an adult at least eighteen (18) years of age; that performance under this Agreement does not and will not constitute a breach of any existing contract or obligation undertaken by You; and that there are no outstanding orders, judgments, decrees, rules or regulations which would preclude You from entering into this Agreement.
- We make no representations or warranties other than those specifically contained herein, and specifically disclaim any implied warranties, including merchantability or fitness for a particular purpose. We make no representations of success or profitability associated with Your participation in the Program or use of the Traffic Service.
- CONFIDENTIALITY PROVISIONS:
- Except as otherwise provided herein, the Parties agree to keep the specific terms of this Agreement confidential and agree not to disclose any terms to any other person or entity, either directly or indirectly. Notwithstanding the foregoing, the Parties may discuss or disclose this Agreement with their attorneys, accountants, partners or employees, or in response to a lawful subpoena, court order or discovery request emanating from a court of competent jurisdiction, or other legal process in any legal proceeding or investigation commenced by any individual, entity, professional organization or governmental agency, in compliance with the provisions of this section.
- Required Disclosure – The Parties agree that if either receives a request to disclose all or any part of the terms of this Agreement pursuant to a subpoena, order, civil investigative demand or similar process issued by a governmental authority, such party shall, before disclosure of the terms of this Agreement and unless otherwise prohibited by applicable law, promptly notify the other party in writing of such party's knowledge of the existence, terms and circumstances surrounding such a request and permit the other party, at its sole expense, to take such legally available steps to resist or narrow such request. If disclosure of the terms of this Agreement is required by law, each party agrees to furnish only that portion of the Agreement that it is legally compelled to disclose and to advise the other party as far in advance of such disclosure as is reasonably possible so that the other party may seek an appropriate protective order or other reliable assurance that confidential treatment will be accorded this Agreement. Each party agrees not to oppose actions by any other party to obtain an appropriate protective order or other reliable assurance.
- This Agreement also may be introduced in any proceeding or action brought by the Parties to enforce the terms of this Agreement.
- DISCLAIMER & LIMITATIONS OF LIABILITY:
- You expressly agree that Your use of the Traffic Service and participation in the Program is at Your sole and exclusive discretion and risk. The Traffic Service is provided on an “as is, with all faults” and “as available” basis. We expressly disclaim all warranties of any kind, whether express or implied, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. We make no warranty that the Traffic Service will meet Your requirements, or remain uninterrupted, timely, secure, or error free; nor do We make any warranty as to the results that may be obtained from the Traffic Service, including without limitation, Traffic Reports and associated Referral Fees, or as to the accuracy or reliability of any information obtained through the Services or that defects in any software, hardware or the Traffic Service will be corrected.
- The maximum liability by Us to You is only for damages directly arising out of a failure by Us to fulfill an obligation under this Agreement where such failure was intentional or the result of gross negligence by Us. In such circumstance, or for any other breach of this Agreement by Us and which We failed to cure under the terms of the Agreement, You agree that any damages owed to You by Us shall be limited to the average total Referral Fee amount paid to Us by You in the one (1) month period preceding the alleged breach of failure to fulfill an owed obligation.
- DISCLAIMER & INDEMNIFICATION:
- If We determine that You intend to utilize the Program or Traffic Service in violation of any law, Your account will be terminated immediately. We do hereby disclaim any liability for damages that may arise from any use of the Program or Traffic Service by You that violates any law.
- Notwithstanding any other limitations on liability herein, You agree that You shall hold harmless, defend and indemnify Us, Our officers, directors, shareholders, employees, independent contractors, attorneys, and agents, for any and all claims, losses, costs, causes of action, damages, settlements, liabilities or expenses (including attorneys fees) arising or resulting from: (i) publishing the Advertising Campaign to promote Your Program Site(s); (ii) Your breach of any term or condition of this Agreement; (iii) Your use of the Traffic Service; and (iv) any illegal or infringing material contained within or on Your Program Site(s) determined to be promoted by the Traffic Service
- We shall be permitted to select legal counsel to provide a defense to any claim or cause of action related to Your use of the Traffic Service. We reserve the right to participate in the defense of any matter otherwise subject to indemnification from You, but shall have no obligation to do so. You shall not settle any such claim or liability without Our prior written consent, which shall not be unreasonably withheld. We are permitted to settle, compromise, mediate, or otherwise negotiate a resolution to any claim subject to indemnification, after consultation with You. Your indemnification and payment obligations shall survive the termination of this Agreement. Any action committed by You or any of the customers, users or subscribers of/to Your Program Site(s), shall be Your sole responsibility, regardless of any legal theories to the contrary.
- You understand that the Company will take drastic measures to protect itself from any legal or civil litigation including, but not limited to, removing a Program Website from the Traffic Service for any reason deemed appropriate by Us. You also understand that We will charge, on an hourly basis, for any and all time spent responding to any third-party complaints, subpoenas, court orders, warrants, investigations, disputes, claims or actions involving You or Your Program Site(s). You agree to pay any such amounts without delay.
- Any notice required to be given under this Agreement may be provided by email to a functioning email address of the Party to be noticed, or personal delivery by commercial carrier.
- Either Party may change the address to which notice or payment is to be sent by written notice to the other under any provision of this paragraph.
- When Notice is Effective – Notices shall be deemed effective upon delivery. Notices delivered by commercial carrier shall be deemed received on the date shown on the company’s delivery confirmation record. Notices mailed by United States Mail, postage prepaid, registered or certified with return receipt requested, shall be deemed delivered five (5) days after mailing. Notices delivered by any other method shall be deemed given upon actual receipt. Notices by email and facsimile transmission, with confirmation from the transmitting machine that the transmission was completed, are acceptable under this Agreement and shall be deemed delivered one (1) hour after transmission if sent during the recipient's business hours, or at 9:00 a.m. (recipient’s time) the next business day. Either Party may, by giving the other Party appropriate written notice, change the designated address, fax number and/or recipient for any notice or courtesy copy, hereunder.
- Any correctly addressed notice that is refused, unclaimed, or undeliverable, because of an act or omission of the Party to be notified shall be deemed effective as of the first date that said notice was refused or deemed undeliverable by the postal authorities, messenger, facsimile machine, email server, or overnight delivery service.
- GOVERNING LAW & DISPUTE RESOLUTION:
- Choice of Law – This Agreement and all matters arising out of, or otherwise relating to, this Agreement shall be governed by the laws of the Company’s host jurisdiction.
- If a dispute arises between the Parties arising out of or otherwise relating to this Agreement, the Parties shall meet and negotiate in good faith to attempt to resolve the dispute. If the Parties are unable to resolve the dispute through direct negotiations, then, except as otherwise provided herein, either Party must submit the issue to binding arbitration in accordance with applicable Arbitration law or ordinance. Claims subject to arbitration (“Arbitral Claims”) shall include, but are not limited to, contract and tort claims of all kinds, and all claims based on any federal, state or local law, statute, or regulation, excepting only claims by Us under applicable worker’s compensation law, unemployment insurance claims, intellectual property claims (including but not limited to claims involving copyrights, trademarks, patents, unfair competition, and/or trade secrets), along with actions (regardless of the underlying cause of action) seeking injunctions, attachment, garnishment, and other equitable relief. The arbitration shall be conducted in the Company’s host jurisdiction, in a convenient location agreed to by the parties, or absent such agreement, selected by the Arbitrator. The arbitration shall be conducted by a single arbitrator, knowledgeable in Internet and e-Commerce disputes. The arbitrator shall be willing to execute an oath of neutrality.
- The Arbitrator shall have no authority to award any punitive or exemplary damages; certify a class action; add any parties; vary or ignore the provisions of this Agreement; and shall be bound by governing and applicable law. The arbitrator shall render a written opinion setting forth all material facts and the basis of his or her decision within thirty (30) days of the conclusion of the arbitration proceeding. THE PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO TRIAL BY JURY IN REGARD TO ARBITRAL CLAIMS.
- No Waiver of Right to Arbitration – There shall be no waiver of the right to arbitration unless such waiver is provided affirmatively and in writing by the waiving Party to the other Party. There shall be no implied waiver of this right to arbitration. No acts, including the filing of litigation, shall be construed as a waiver or a repudiation of the right to arbitrate.
- Limitation of Actions – No action, regardless of form, arising out of or in conjunction with the subject matter of this Agreement, except for claims involving intellectual property and claims for indemnification, may be brought by either Party more than one (1) year after the cause of action arose.
- MISCELLANEOUS PROVISIONS:
- Force Majeure – Neither Party will be held liable for, or will be considered to be in breach of or default under this Agreement on account of any delay or failure to perform as required by this Agreement, or as a result of any causes or conditions that are beyond such Party’s reasonable control and that such Party is unable to overcome through the exercise of commercially reasonable diligence, including but not limited to: acts of God; war, riot, embargoes, acts of civil or military authority, or terrorism; fire, flood, earthquakes, hurricanes, tropical storms or other natural disasters; fiber cuts; strikes, or shortages in transportation, facilities, fuel, energy, labor or materials; failure of the telecommunications or information services infrastructure; hacking, SPAM, net congestion, or any failure of a computer, server or software. If any force majeure event occurs, the affected Party will give prompt written notice to the other Party and will use commercially reasonable efforts to minimize the impact of the event.
- Successors and Assignment – The rights and liabilities of the Parties hereto will bind and inure to the benefit of their respective successors, executors, and administrators. You may not assign Your rights and obligations under this Agreement without Our express, written consent.
- Severability – If for any reason a court of competent jurisdiction or an Arbitrator finds any provision of this Agreement, or any portion thereof, to be unenforceable, that provision will be enforced to the maximum extent permissible and the remainder of this Agreement will continue in full force and effect. The Parties may also determine a new provision that closely approximates the original provision.
- No Waiver – No waiver or action made by Us shall be deemed a waiver of any subsequent default of the same provision of this Agreement. If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from this Agreement.
- Headings – All headings are solely for the convenience of reference and shall not affect the meaning, construction or effect of this Agreement.
- Complete Agreement – This Agreement constitutes the entire agreement between the Parties with respect to Your access and use of the Traffic Service and Your participation in the Program, and supersede and replace all prior understandings or agreements, written or oral, regarding such subject matter.
- Other Jurisdictions – We make no representation that the Program or Traffic Service are appropriate or available for use in any given jurisdiction, and access to them from territories where they may be illegal or is otherwise prohibited. Those who choose to use the Traffic Service from locations where the Traffic Service is unlawful, do on their own initiative and are solely responsible for compliance with all applicable local laws.
- Stipulated Damages –For any breach of this Agreement, You hereby agree that You are responsible for any damages arising out of Your breach of this Agreement. If We are required to enlist the assistance of an attorney or other person to collect any liquidated damages or any other amount of money from You, or if We are required to seek the assistance of an attorney to pursue injunctive relief against You, then You additionally agree that You will reimburse Us for all fees and charges incurred in order to collect these liquidated damages or in order to seek injunctive relief from You. You understand that even a nominal amount of damages may require the expenditure of extensive legal fees, travel expenses, costs, and other amounts that may dwarf the liquidated damages themselves. You agree that You will pay all of these fees and costs.
- Binding Agreement – The Parties acknowledge the legally binding nature of this Agreement, once accepted by Us. By submitting Your online registration application to Us to utilize the Traffic Service, You are affirmatively stating that You have read and understand the terms set forth herein and that You agree to be bound by the terms hereof should You be accepted into the Program. You hereby adopt the submission procedure as Your electronic signature on this Agreement.
This document prepared by Walters Law Group: www.FirstAmendment.com.
All Rights Reserved. © Walters Law Group (2014).
Nothing more follows.