Terms & Conditions

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Terms & Conditions

These Terms and Condition have been last updated on November 30, 2014, (“Agreement”) and set the legal terms between you (“Publisher”) and Fusion Media Ltd. ("Company"). By continuing the registration and using the Platform and Service (as such terms are defined below) Publisher indicates that it has read and agreed to this Agreement. Within two business days following Publisher’s registration, Company shall review Publisher’s details and approve or reject its participation and use of the Service (as defined below) at Company’s sole discretion. Publisher shall be notified via email (which may be via email to Publisher’s designated email in Company’s system) of Company’s decision. Company retains the exclusive right to modify or update this Agreement, at any time and with or without prior notice. In the event Company updates this Agreement, it will post the updated Agreement here and if the update is material, Company will provide the Publisher with a written notification (which may be via email to Publisher’s designated email in Company’s system), and will update the last updated date at the top of this Agreement. However, it is Publisher’s responsibility to review this Agreement from time to time to check for updates. Publisher agrees that by continuing to use the Platform and the Service after Company has posted an update or provided Publisher with notice thereof, Publisher will be bound by the updated Agreement. If the updated Agreement is not acceptable to Publisher, Publisher’s only recourse is to cease using the Platform and Service and/or terminate the Agreement. 1. Definitions. 1.1. “Action” shall mean Advertisers’ defined basis for new End Users’ activity entitling the Publisher to receive payment subject to Advertiser’s approval and the provisions of this Agreement (e.g., End User agrees through a pre-approved opt-in method to be contacted by Advertiser, End User answers Advertisers call, etc.) 1.2. “Advertiser” shall mean the entity that owns and/or has legal rights to the Advertisement. 1.3. “Advertisement”, “Advertising”, “Ads”, shall mean a promotional message including any code therein, that may consist of text, graphics, programming code, audio, sounds, video, other artwork or any combination thereof as well as the websites or URL to which an advertisement is linked (if applicable) all for the purpose of publicizing an advertiser’s products or services. 1.4. “Cap” has the meaning set forth in Section 5.4 below. 1.5. “CPA” shall mean cost per Action. 1.6. "Confidential Information" shall mean any non-public, proprietary, confidential and/or trade secret information of a party hereof, whether furnished before or after the campaign, and regardless of the manner in which it is furnished, which given the circumstances, a reasonable person or entity should have reason to believe is proprietary, confidential, or competitively sensitive, including, without limitation, any information regarding payment under this Agreement and or Advertisement and Advertisers’ entity information available through the Platform and Services. 1.7. “Consideration” has the meaning set forth in Section 5.1 below. 1.8. “Distribution Channel/(S)" shall mean any and all methods of marketing and promoting the Advertisement for the purpose of successful achieving Actions, including without limitation, through websites, various media channels, etc. 1.9. “Dispute Notice” and “Dispute Notice Period” has the meaning set forth in Section 5.11 below. 1.10. “Demand” has the meaning set forth in Section 11.1 below. 1.11. “End User” shall mean a user who views the Ads. 1.12. “Fraudulent Activity” shall mean any of the following activities: (a) any hacking or phreaking of the Platform or any part thereof; (b) the Distribution Channels promote, distribute or is designed to distribute or promote any cracking, warez, ROM, virus, adware, worms, Trojan horses, malware, spyware or any other similar malicious activities and products or any other computer code, files or programs designed to interrupt, hijack, destroy, limit or adversely affect the functionality of any computer software, hardware, network or telecommunications equipment; or (c) using or employing any misleading, fraudulent or inappropriate practices that may trick a user to click on the Ad and/or preform an Action. 1.13. “Inventory” shall mean online media webpages, apps and other media properties that Publisher owns or has legal rights to place, and authorize others to place, Advertising thereon. 1.14. “License” has the meaning set forth in Section 2.2 below. 1.15. “Platform” has the meaning set forth in Section 2.1 below. 1.16. “Report” has the meaning set forth in Section 5.2 below. 1.17. “Service” has the meaning set forth in Section 2.1 below. 1.18. “Suspension Event” shall mean, without limiting Company’s other suspension rights under this Agreement, that Company reserves the right to immediately suspend Publisher’s use of the Service in the event Publisher, directly or indirectly, used the Service in a manner that in Company's sole discretion could damage or cause injury to the Service, Advertisement, Advertisers or otherwise reflect unfavorably on the reputation of Company. 1.19. “Suspension Notice” has the meaning set forth in Section 6.4 below. 1.20. “Termination Notice” shall mean a written notification, including, without limitation, by means of email message, sent from one party to the other party stating the reason for termination of this Agreement, as applicable under Section 6.2 and 6.3 herein. 1.21. “Traffic and Compliance Guidelines” shall mean Company’s guidelines, attached herein as Exhibit A that shall apply to Publisher's use of the Service; as such guidelines may be updated from time to time. 2. Scope of the Agreement and License. 2.1. This Agreement sets out the terms under which Publisher shall be provided with a license to access and use the Company's affiliate network system ("Platform") that enables the use, promotion and display of Advertisements on Publisher’s Inventory (“Service”). 2.2. Company grants to Publisher a non-exclusive, non-sublicenseable, non-transferable and revocable right to access and use the Platform and Service including the Advertisement available therein solely for the purpose expressly provided in this Agreement (“License”). 2.3. Publisher may not make any use of the Platform or Service, in whole or in part, in any manner not expressly permitted by the Agreement. Publisher will not attempt to interfere with or disrupt the Platform or Service or attempt to gain access to any systems or networks that connect thereto. 2.4. Except as expressly specified in the Agreement, the Publisher will not: (a) edit, create derivative works of, disable or modify the Platform, or any Advertisement or any part thereof; (b) transfer, sublicense, lease, lend, rent, sell, or otherwise distribute the Platform or any Advertisement or any part thereof to any other person or entity; (c) integrate without the Company's express prior written consent the Platform or any Advertisement or any part thereof with any other product or service, or make any other disposition in or with respect to the Platform or any Advertisement; (d) breach any security measures of any Advertiser or any other third party with respect to use of an Advertisement; or (e) use the Platform or Service, or any Advertisement in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with the Agreement. Publisher agrees not to copy, reproduce, disassemble, decompile, attempt to derive the source code of, or reverse engineer the Platform Advertisement or any part thereof, in whole or in part, or permit or authorize any other person or entity to do so. 2.5. Nothing herein shall be construed as restricting Company’s right to offer, sell, lease, license, modify, publish, provide access to, or otherwise distribute the Platform in whole or in part, to any other person or entity, directly or indirectly. 2.6. Company retains the exclusive right at its sole discretion to monitor Publisher’s traffic source and Inventory, and to verify each Action delivered by the Publisher. 3. Representation and Warranties. 3.1. Each of the parties hereby represents and warrants that: (a) the Agreement constitutes a valid and legally binding obligation thereof, enforceable against it in accordance with its terms; (b) it has all requisite corporate power and authority to execute, deliver, and perform its obligations under the Agreement; (c) it is duly organized and in good standing under the laws of its state of organization; and (d) the execution of the Agreement or the performance by it of its obligations under the Agreement do not and will not violate any other obligation or agreement, law or regulation by which it is bound or to which it is subject. 3.2. Except as set forth above, the Service, and the Platform and any content included therein are provided by Company on an "AS-IS" basis. Except as expressly provided in the Agreement and to the fullest extent allowable by applicable law, Company makes no other warranty of any kind, whether express, implied, statutory or otherwise, including, without limitation, warranties of merchantability, fitness for a particular use, or non-infringement, and disclaims any such warranties. In addition, Company does not represent or warrant that: (i) Platform or any of the services available therein will be error free or that any errors will be corrected; (ii) the operation of the Platform or any of the services available therein will be uninterrupted; or (iii) Publisher will profit or derive any economic benefit from Publisher’s use of the Platform or Service. 3.3. Publisher represents and warrants that: (a) it is solely responsible for trafficking of Ads, placing and removing Ads and Ad tags and handling all inquiries of any type related to its use of the Service; (b) it will obtain all necessary rights, waivers and permissions from End Users who view, click or register on any Advertising, to the extent that any information is collected from or about them by Publisher, if applicable; (c) Publisher shall post on its Inventory a privacy policy and terms of use that are in compliance with any and all applicable laws, rules, regulations, including without limitation the privacy protection laws and CAN-SPAM Act of 2003; (d) any and all activities or obligations Publisher undertakes in connection with the Agreement shall be performed in compliance with all applicable laws, rules, regulations, directives and best industry practice including the Traffic and Compliance Guidelines. Company reserves the right, at its sole discretion, to supplement the foregoing guidelines or requirements from time to time; and (e) Publisher will not permit employees, agents or permitted subcontractors, as applicable, to access or use the Platform or Service unless necessary. Publisher will be responsible for any acts or omissions of any of its employees, agents or permitted subcontractors, and will ensure such employees, agents and permitted subcontractors comply with the terms of this Agreement. 4. Monitoring and Compliance. 4.1. Publisher acknowledges and agrees that Company may actively monitor Publisher’s activity on the Platform. It is the obligation of Publisher to prove to Company that it is not committing Fraudulent Activity and/or breach of the Traffic and Compliance Guidelines. 4.2. If Company finds or has reason to believe that Publisher committed any Fraudulent Activity or breached any of the Traffic and Compliance Guidelines then Company will hold Publisher’s payments until Publisher has satisfactorily provided evidence that it has not been involved in any Fraudulent Activity or otherwise violated the Traffic and Compliance Guidelines. 4.3. In the event Publisher is unable to prove to Company that it was not involved in any Fraudulent Activity or otherwise breached the Traffic and Compliance Guidelines, Company shall withhold such fraudulent payments and shall have the right in its sole discretion to terminate Publisher's account on the Platform. 4.4. Company may, in its complete discretion, reject, cancel or remove at any time any Advertisement from the service for any reason without prior notice to Publisher. 4.5. Upon Company’s request, Publisher shall be able to provide the name of the website where the Action was generated from. 5. Payment. 5.1. In consideration for the display and distribution of the Advertisement during the term of the Agreement, Publisher shall receive payment that will be equal to the sum total of the product of (y) the number of successful Actions approved by Advertiser (subject to the provisions herein below); multiplied by (z) the CPA rate set for in the Platform’s dashboard ("Consideration"). 5.2. Company shall provide Publisher with access to an online reporting system where Publisher will be able to view its measurements or statistics (“Report”). Company shall not liable for any unavailability or inaccuracy, temporary or otherwise, of the reporting system. 5.3. Notwithstanding the foregoing, Publisher will not be entitled to receive or retain any Consideration that Publisher earned as a result or in connection with any breach of the Agreement. 5.4. Publisher acknowledges and agrees that Company and/or Advertiser reserves the right, at its sole discretion, to set any limitation on the distribution volume, including without limitation, by setting a cap, increasing or decreasing the budget or capping the successful Actions for each campaign per any given period (“Cap”). Company and/or Advertiser will not be held responsible for payment of any amounts that exceed the Cap or limitation. 5.5. Payment of the Consideration will be made subject to receipt of an applicable invoice from Publisher. Publisher acknowledges and agrees that failure to provide an applicable invoice for the relevant month by the 10th day of the following calendar month will result in postponement of any Consideration due hereunder for such calendar month to the next calendar month. 5.6. Payment of the Consideration will be made directly to Publisher’s designated bank account as detailed by during the registration process. It is Publisher's sole responsibility to ensure that the payment details are both accurate and complete and the Company will have no obligation whatsoever to verify the accuracy and completeness of such details. In the event that Publisher provides the Company with incorrect or incomplete details or Publisher has failed to update the details and as a result the Commission is paid to an incorrect account, the Company shall no longer be liable to the Publisher for any such Consideration. 5.7. Publisher agrees that Company’s failure to remit payment which is cured by Company within ten (10) business days of the due date shall not be considered as a breach by Company of its payment obligation hereunder. Further, Publisher agrees that Company shall not be required to pay Publisher until such time that the amount owed to Publisher equals or exceeds US$250. In the event the amount due to Publisher for any applicable calendar month is less than US$250, then it will be carried over until such time as the payment due to Publisher equals or exceeds US$250. 5.8. Publisher agrees and acknowledges that the first payment of Consideration due under this Agreement shall be paid 60 days following the beginning of Publisher’s campaign (i.e., in the event Publisher started the campaign on January 1st, 2015, the first payment will be made on March 1st, 2015 and shall include the Consideration due for January and February). Any future payment following the first payment shall be paid on the 20th of each month for payment accrued to in the previous month. 5.9. Notwithstanding the above, Publisher agrees and acknowledges that the Consideration is subject to (i) Company’s receipt of applicable payment from the Advertisers; and (ii) Advertiser’s approval and acceptance of the Actions by End Users. 5.10. All Consideration will be calculated solely based upon Company’s records. No other measurements or statistics of any kind shall be accepted by Company or have any effect under the Agreement. In the event of any dispute and/or discrepancy between the parties as to the number of successful Actions, Company’s records will be final, subject to Section 5.10 below. 5.11. In the event of a discrepancy or if Publisher disputes the information detailed in a Report it will provide Company with a written notice which shall include the reasons for such dispute with as much detail as possible (“Dispute Notice”), by no later than seven (7) days as of receipt of such Report (“Dispute Notice Period”). Following receipt of a Dispute Notice, the parties will co-operate, in good faith, to reach an amicable solution to such dispute. Publisher acknowledges and agrees that if no Dispute Notice is received by Company with respect to an applicable Report during the applicable Dispute Notice Period, then such Report will be considered as final and non-appealable evidence for the purpose of computing the Consideration due and payable to Publisher pursuant to the terms of the Agreement. Company may withhold payment of any disputed amounts until the dispute is resolved. 5.12. Publisher shall be solely responsible and liable for any and all taxes arising from or related to any payments made to the Publisher hereunder, including sales, use, value added, income, withholding, or any other tax, and the Company shall not be required to incurease any amount payable to Publisher in such respect or bear all or any portion of any such tax. 6. Termination and Suspension. 6.1. The term of the Agreement shall be from the target launch of the initial campaign and may continue until terminated by the parties as specified below. 6.2. Without limiting the Company's right to terminate the agreement as set forth below, each party may terminate this Agreement upon 30 days prior written Termination Notice. 6.3. Notwithstanding section 6.2, Company may terminate this Agreement at its sole discretion at any time and for any reason by providing a Termination Notice. All successful Actions shall be paid to Publisher up to the date of the Termination Notice. 6.4. Without limiting section 6.3, Company will notify Publisher in writing upon the occurrence of a Suspension Event (“Suspension Notice”). If within five (5) business days of the Suspension Notice, Publisher has not eliminated or otherwise addressed the Suspension Event to Company’s satisfaction, Company reserves the right to immediately terminate this Agreement without further notice to Publisher. 6.5. Upon termination, the License grant shall be immediately revoked and Publisher shall promptly cease the use the Platform and Service and the distribution of the Advertisement. 7. Confidentiality. 7.1. Each party may have access to the Confidential Information of the other party. Therefore, the recipient of Confidential Information shall: (i) not disclose the disclosing party’s Confidential Information other than on a “need to know” basis; (ii) not use any of the disclosing party’s Confidential Information for any purposes except to carry out its rights and obligations under the Agreement; and (iii) keep the disclosing party's Confidential Information confidential using the same degree of care it uses to protect its own Confidential Information, which shall not be in any event less than a reasonable degree of care. 7.2. At any time upon the written request of disclosing party, recipient shall return to disclosing party, or destroy, in accordance with disclosing party’s written instructions, all of disclosing party's Confidential Information. 7.3. Notwithstanding the foregoing, in the event that recipient is required by legal process, order of any court of competent jurisdiction, or any applicable law, rule or regulation to disclose any of disclosing party’s Confidential Information, then prior to any such disclosure, recipient will give prompt written notice to disclosing party (if permitted by law) 7.4. It is agreed that if recipient fails to abide by its obligations under this Section 7, disclosing party will be entitled to immediate injunctive relief, in addition to any other rights and remedies available to it at law or in equity. 7.5. The obligation to protect the Confidential Information shall survive termination for the period of five (5) years. 8. Proprietary Rights and Restrictions. Except for the rights expressly granted to Publisher under this Agreement, no intellectual property or other proprietary rights are directly or indirectly granted or otherwise transferred to Publisher by Company or Advertiser, including, but not limited to, with respect to the Platform, Service, or any Advertisement thereof. 9. DISCLAIMER OF WARRANTIES. COMPANY PROVIDES THE SERVICE ON AN "AS IS," “WHERE IS” AND "AS AVAILABLE" BASIS. COMPANY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. 10. LIMITATIONS OF LIABILITY. IN NO EVENT WILL COMPANY, ITS OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS, BE LIABLE TO PUBLISHER OR ANY OTHER PERSON OR ENTITY, FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION TO DAMAGES FOR ANY LOST PROFITS OR REVENUES, LOSS OF GOODWILL, SERVICE INTERRUPTION, LOSS OF CUSTOMERS, LOSS OF ANY EQUIPMENT OR SOFTWARE, SYSTEMS, COMPUTER DAMAGE OR SYSTEM FAILURE, LOSS OF DATA OR INFORMATION, SERVICE INTERRUPTION, INTEREST CHARGES OR COST OF CAPITAL, COST OF PROCUREMENT OF SUBSTITUTE EQUIPMENT, SOFTWARE, SYSTEMS OR SERVICES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR PUBLISHER’S ABILITY OR INABILITY TO USE THE SERVICES UNDER ANY THEORY OF LIABILITY, INCLUDING WITHOUT LIMITATION, TO CONTRACT OR TORT (INCLUDING PRODUCTS LIABILITY, STRICT LIABILITY AND NEGLIGENCE), AND WHETHER OR NOT COMPANY SHOULD HAVE REASONABLY FORESEEN OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED HEREIN. IN NO EVENT WILL COMPANY’S AGGREGATE LIABILITY FOR ANY CLAIM ARISING OUT OF OR RELATED TO THE AGREEMENT, TO THE FULLEST EXTENT POSSIBLE UNDER APPLICABLE LAW, EXCEED THE AMOUNT PAID BY COMPANY TO PUBLISHER IN THE PERIOD OF THREE (3) MONTHS PRIOR TO EVENT THAT GAVE RISE TO SUCH CLAIM. 11. Indemnification. Publisher will defend, hold harmless, and indemnify Company and/or its subsidiaries, affiliates, directors, officers, employees, agents, its licensors, successors and permitted assigns (collectively, the "Company Group") from and against any and all claims, suits, actions, demands, proceedings (“Demand”), costs, expenses, damages, losses, and/or liabilities of any kind (including but not limited to reasonable attorney's fees) threatened, asserted or filed, brought, commenced or prosecuted by any third party against the Company Group arising out of or relating to: (a) any acts or omissions on the part of Publisher; (b) a breach or alleged breach of any warranty, representation or obligation made by Publisher under the Agreement; (c) any use of the Platform or Service in any manner inconsistent with or in breach of the Agreement. The Company Group will: (i) promptly notify the Publisher of any Demand; (ii) provide the Publisher, at the cost of the Publisher, reasonable information and assistance in defending the Demand; and (iii) give the Publisher control over the defense and settlement of the Demand; provided, however, that any settlement will be subject to the Company Group’s prior written approval (which approval shall not be unreasonably withheld or delayed). Notwithstanding the foregoing, the Company Group will not be required to allow Publisher to assume the control of the defense of a Demand (in which case Company Group will assume the control at Publisher’s costs), to the extent that the Company Group determines that: (a) such Demand relates directly to the Platform; (b) the relief sought against the Company Group is not monetary damages; or (c) settlement of, or an adverse judgment with respect to, such Demand could reasonably be expected to establish a precedential custom or practice materially adverse to the continuing business interests of Company. The Company Group may join in the defense of any Demand at its own expense. 12. Miscellaneous. 12.1. The Agreement will be construed, controlled and governed by the laws of England and Wales, without regard to its conflicts of law principles or provisions. All claims and disputes arising out of or in connection with the Agreement will be settled by the courts of England. 12.2. Publisher shall not assign or otherwise transfer its rights or obligations under this Agreement except with the prior written notice of Company. Any assignment in violation of this Section 12.2 shall be null and void. 12.3. Each party is an independent contractor. Except as set forth in this Agreement, neither party is authorized or empowered to obligate the other or incur any costs on behalf of the other without the party’s prior written consent. 12.4. Neither party shall be liable hereunder for any failure or delay in the performance of its obligations hereunder due to any condition beyond its reasonable control, including without limitation to, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, earthquakes, Internet outages, acts of God, war and governmental action. 12.5. If any term, provision, covenant, or condition of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of the Agreement shall remain in full force and effect and shall in no way be affected or invalidated.   Exhibit A Traffic and Compliance Guidelines Any and all of the Distribution Channels used by Publisher including but not limited to, the Inventory, the website(s) in which the Advertisements are being promoted shall NOT include, without limitation, any content which Company deems in its sole discretion to be: (1) Incentivized traffic (whether financial or otherwise)- this includes but is not limited to any spoofing, redirecting or trafficking from adult related websites in an effort to gain traffic or websites that are point, lottery, coupon or rewards based and encourage End Users to click on Advertisements or use Advertisements to generate revenue for End Users to win points, get rewards, or other any other incentive; (2) Actions generated from out of content or context websites, emails; (3) The Inventory must receive a minimum of unique page views per month, have a top-level name and must not infringe on any personal, intellectual property or copyrights; (4) The use of contextual media, specifically downloadable software (also called adware, pop-up/pop-under technologies, plug-ins, and other names as applicable); (5) Related to the sale or consumption of illegal or recreational drugs, alcohol or tobacco products; (6) Related to the sale or consumption of fake or counterfeit items; (7) False, deceptive, fraudulent or misleading; (8) Adult products or adult services, sexually explicit, pornographic or obscene (whether in text or in graphics) content; Gambling of any kind; (9) Unlawful or in violation of any law, regulation or directive, In breach of a court order or tribunal ruling or decision; (10) "Hate Speech" or any content which contains images that are offensive, profane, threatening, harmful, harassing or discriminatory (whether based on age, race, ethnicity, creed, national origin, religion, gender, marital status, sexual orientation, physical disability or otherwise); (11) Violent or bullying; Politically sensitive or controversial; Obscene; Defamatory, libelous or slanderous; or (12) Encouraging unlawful behavior or conduct. With regards to email campaigns Publisher further represents and warrants that with respect to email campaigns transmitted by Publisher it shall maintain strict compliance with the applicable anti-spam laws and regulations, including the Controlling the Assault on Non-solicited Pornography and Marketing Act of 2003 (CAN-SPAM) and any amendments and modifications thereto. The Publisher may not engage in any activity which in Company’s sole discretion shall be deemed “Prohibited Behavior” including without being limited to any of the following: Encouraging and/or incentivizing users (including without limitation, by offering any money, rebate, discount, points, donation to charity or other organization, or other benefit) to click the banners and Ads; Cookie dropping or stuffing; Sending mass unsolicited electronic mailings, newsgroup postings; Malware marketing or any other form of "spamming" including but not limited to, adware and spyware; Accessing, hijacking or otherwise using the machine’s modem or Internet connection or service; Using methods to generate non user successful Actions.