PLEASE READ THIS SUBSCRIBER AGREEMENT ("AGREEMENT")
CAREFULLY BEFORE USING THE SERVICES OFFERED BY ADBRITE,
INC. ("COMPANY"). BY CLICKING ON THE "I ACCEPT"
BUTTON BELOW, YOU AGREE TO BECOME BOUND BY THE TERMS
AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE
TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT,
CLICK ON THE "CANCEL" BUTTON AND YOU WILL NOT HAVE
ANY RIGHT TO USE THE SERVICES OFFERED BY COMPANY.
COMPANY'S ACCEPTANCE IS EXPRESSLY CONDITIONED UPON
YOUR ASSENT TO ALL THE TERMS AND CONDITIONS OF THIS
AGREEMENT, TO THE EXCLUSION OF ALL OTHER TERMS; IF
THESE TERMS AND CONDITIONS ARE CONSIDERED AN OFFER BY
COMPANY, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE
TERMS.
The Web pages available at www.adbrite.com, and all
linked pages unless indicated otherwise ("Site"),
are owned and operated by Company, and are accessed by
you ("Subscriber") under the following terms and
conditions:
1. ACCESS TO THE SERVICES. Subject to the terms and
conditions of this Agreement, Company may offer to
provide certain services that relate to facilitating
the purchase and sale of Internet advertisements by
bringing together Internet advertisers and publishers,
as described more fully on the Site, and which are
selected by Subscriber through the process provided
on the Site ("Services"). Company may change, suspend
or discontinue the Services (or Subscriber's access
thereto) at any time, including the availability of
any feature, advertisement, publisher or content,
without notice or liability. Company reserves the
right, at its discretion, to refuse to allow access
to the Services to any applicant at any time. Company
also reserves the right, at its discretion, to modify
this Agreement at any time by posting a notice on the
Site, or by sending Subscriber a notice via email or
postal mail. Use of the Services by Subscriber
following such notification constitutes Subscriber's
acceptance of the modified terms and conditions.
Subscriber certifies to Company that if Subscriber
is an individual (i.e., not a corporation) Subscriber
is at least 18 years of age. Subscriber also certifies
that it is legally permitted to use the Services and
access the Site, and takes full responsibility for the
selection and use of the Services. This Agreement is
void where prohibited by law, and the right to access
the Site is revoked in such jurisdictions.
2. IMPLEMENTATION. Subscriber agrees to comply with the
technical specifications provided by Company to enable
proper display of the advertisements in connection with
the Services, including without limitation by not
modifying the JavaScript or other programming provided
to Subscriber by Company in any way.
3. COMMUNICATIONS SOLELY WITH COMPANY. Subscriber agrees
to direct to Company and not to any advertiser or
publisher, as the case may be, all communications
regarding any matter arising out of Subscribers use of
the Services.
4. CONTENT. The Site and its contents are protected by
U.S. and international copyright laws and are intended
solely for the use of Company subscribers and may only be
used in accordance with the terms of this Agreement in
connection with authorized use of the Services. All
materials displayed or performed on or accessible through
the Site or Services (including, but not limited to text,
graphics, articles, photographs, images, illustrations,
audio clips and video clips, also known as the "Content")
are protected by copyright. The term "Content" as used
herein specifically includes any advertising or other
content made available or submitted by any advertiser and
any website or other content published by or associated
with any publisher. Subscriber shall abide by all
copyright notices, information, and restrictions
contained in any Content accessed in connection with the
Services. Subscriber acknowledges and agrees that if
Subscriber uses any of the Services to contribute or make
available Content, Company is hereby granted a
non-exclusive, worldwide, royalty-free, transferable
right to fully exploit such Content (including all
related intellectual property rights) and to allow others
to do so in connection with the Services and the Site.
5. RESTRICTIONS.
Subscriber (whether a publisher, advertiser or otherwise)
warrants, represents and agrees that it will not
contribute, submit or make available through the
Services, or use the Services in connection with, any
Content that is infringing, libelous, defamatory,
obscene, abusive, offensive or otherwise violates any
law or right of any third party.
If Subscriber is a publisher, Subscriber shall not, and
shall not authorize or encourage any third party to (i)
generate fraudulent impressions of or fraudulent clicks
on any advertisement, including but not limited to
through repeated manual clicks, the use of robots or
other automated query tools and/or computer generated
search requests, and/or the fraudulent use of other
search engine optimization services and/or software; (ii)
edit, modify, filter or change the order of the
information contained in any advertisement, or remove,
obscure or minimize any advertisement in any way; (iii)
redirect an end user away from any Web page accessed by
an end user after clicking on any part of an
advertisement ("Advertiser Page"), provide a version of
the Advertiser Page different from the page an end user
would access by going directly to the Advertiser Page or
intersperse any content between the advertisement and the
Advertiser Page; or (iv) display any advertisements on
any error page, registration or "thank you" page (e.g. a
page that thanks a user after he/she has registered with
the applicable website).
Company reserves the right to remove any Content from the
Site at any time, or to terminate Subscriber's right to
use the Services or access the Site, for any reason
(including, but not limited to, upon receipt of claims or
allegations from third parties or authorities relating to
such Content or if Company is concerned that Subscriber
may have breached the terms of this paragraph), or for no
reason at all, subject to the provisions of paragraph 14
(Termination).
Subscriber is responsible for all of its activity in
connection with the Services. Any fraudulent, abusive, or
otherwise illegal activity is grounds for termination of
Subscriber's right to use the Services or to access the
Site. Use of the Site or Services to violate the security
of any computer network, crack passwords or security
encryption codes, transfer or store illegal material
including materials that are deemed threatening or
obscene, or engage in any kind of illegal activity is
expressly prohibited.
Subscriber will not run Maillist, Listserv, any form of
auto-responder, or "spam" on the Site, or any processes
that run or are activated while the Subscriber is not
logged in.
6. DISCLAIMERS.
Subscriber acknowledges and agrees that Company has no
special relationship with or fiduciary duty to Subscriber
and that Company has no control over, and no duty to take
any action regarding: which users gains access to the
Site or Services; what Content Subscriber accesses or
receives via the Site or Services; what Content other
subscribers may make available, publish or promote in
connection with the Services; what effects any Content
may have on Subscriber or its users or customers; how
Subscriber or its users or customers may interpret, view
or use the Content; what actions Subscriber or its users
or customers may take as a result of having been exposed
to the Content, or whether Content is being displayed
properly in connection with the Services.
Further, (i) if Subscriber is a publisher, Subscriber
specifically acknowledges and agrees that Company has no
control over (and is merely a passive conduit with
respect to) any Content that may be submitted or
published by any advertiser, and that Subscriber is
solely responsible (and assumes all liability and risk)
for determining whether or not such Content is
appropriate or acceptable to Subscriber, and (ii) if
Subscriber is an advertiser, Subscriber specifically
acknowledges and agrees that Company has no control over
any Content that may be available or published on any
publisher website (or otherwise), and that Subscriber is
solely responsible (and assumes all liability and risk)
for determining whether or not such Content is
appropriate or acceptable to Subscriber.
Subscriber releases Company from all liability in any way
relating to Subscriber's acquisition (or failure to
acquire), provision, use or other activity with respect
to Content in connection with the Site or Services. The
Site may contain, or direct Subscriber to sites
containing, information that some people may find
offensive or inappropriate. Company makes no
representations concerning any content contained in or
accessed through the Site or Services, and Company will
not be responsible or liable for the accuracy, copyright
compliance, legality or decency of material contained in
or accessed through the Site or Services. Company makes
no guarantee regarding the level of impressions of or
clicks on any advertisement, the timing of delivery of
such impressions and/or clicks, or the amount of any
payment to be made to Subscriber in connection with the
Services.
THE SERVICES, CONTENT AND SITE ARE PROVIDED ON AN "AS IS"
BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR
IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE OR NON-INFRINGEMENT. COMPANY DOES NOT WARRANT THE
RESULTS OF USE OF THE SERVICES, INCLUDING, WITHOUT
LIMITATION, THE RESULTS OF ANY ADVERTISING CAMPAIGN, AND
SUBSCRIBER ASSUMES ALL RISK AND RESPONSIBILITY WITH
RESPECT THERETO. SOME STATES DO NOT ALLOW LIMITATIONS ON
HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE
LIMITATIONS MAY NOT APPLY TO SUBSCRIBER.
ELECTRONIC COMMUNICATIONS PRIVACY ACT NOTICE (18USC
2701-2711):
COMPANY MAKES NO GUARANTY OF CONFIDENTIALITY OR PRIVACY
OF ANY COMMUNICATION OR INFORMATION TRANSMITTED ON OR
THROUGH THE SITE, SERVICES OR ANY WEBSITE LINKED TO THE
SITE. Company will not be liable for the privacy of
e-mail addresses, registration and identification
information, disk space, communications, confidential or
trade-secret information, or any other Content stored on
Company's equipment, transmitted over networks accessed
by the Site, or otherwise connected with Subscriber's use
of the Services.
7. COPYRIGHT DISPUTE AND PRIVACY POLICIES. Please review
Company's Copyright Dispute Policy
http://www.adbrite.com/mb/copyrightdispute.php if
Subscriber believes that material or content residing on
or accessible through the Site or Services infringes a
copyright. Please also review Company's Privacy Policy
http://www.adbrite.com/mb/privacy.php for information
regarding Company's policies and practices regarding the
use of Subscriber personal information.
8. REGISTRATION AND SECURITY. As a condition to using
Services, Subscriber may be required to register with
Company and select a password and Subscriber name
("Company User ID"). Subscriber shall provide Company
with accurate, complete, and updated registration
information. Failure to do so shall constitute a breach
of this Agreement, which may result in immediate
termination of Subscriber's account.
Subscriber may not (i) select or use as a Company User ID
a name of another person with the intent to impersonate
that person; (ii) use as a Company User ID a name subject
to any rights of a person other than Subscriber without
appropriate authorization; (iii) register for the
Services using more than one Company User ID. Company
reserves the right to refuse registration of, or cancel a
Company User ID in its discretion. Subscriber shall be
responsible for maintaining the confidentiality of
Subscriber's Company password.
9. INDEMNITY. Subscriber will indemnify and hold Company,
its parents, subsidiaries, affiliates, officers and
employees, harmless, including costs and attorneys' fees,
from any claim or demand made by any third party due to
or arising out of Subscriber's access to the Site, use of
the Services, the violation of this Agreement by
Subscriber, or the infringement by Subscriber, or any
third party using the Subscriber's account, of any
intellectual property or other right of any person or
entity.
10. LIMITATION OF LIABILITY. IN NO EVENT SHALL COMPANY BE
LIABLE WITH RESPECT TO THE SITE OR THE SERVICES (I) FOR
ANY AMOUNT IN THE AGGREGATE IN EXCESS OF THE FEES PAID BY
SUBSCRIBER THEREFOR; OR (II) FOR ANY INDIRECT,
INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY
KIND WHATSOEVER. SOME STATES DO NOT ALLOW THE EXCLUSION
OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO
THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO
SUBSCRIBER.
11. FEES AND PAYMENT.
Some of the Services require payment of fees. Subscriber
shall pay all applicable fees, as described on the Site
in connection with such Services selected by Subscriber.
Company reserves the right to change its price list and
to institute new charges at any time, upon prior notice
to Subscriber, which may be sent by email or posted on
the Site.
If Subscriber is a publisher, Subscriber shall receive as
payment a percentage of the sale price of advertisements
displayed in connection with Subscriber's website as
determined by Company for Subscriber's use of the
Services. Subscriber's payable revenue shall be
determined on the first day of each month, on which day
those revenues accrued to Subscriber's account sixty
(60)or more days earlier shall become eligible to be
paid. Payments to Subscriber shall be sent by Company
within approximately ten (10) days of the previous
calendar month end, if Subscriber's earned balance is
greater than or equal to Subscriber's minimum check
amount. If Subscriber's earned balance is less than
Subscriber's minimum check amount, no check shall be sent
and the Company shall make the aforesaid determination
anew on the first day of the following month. In
addition, if Subscriber is a publisher, Subscriber agrees
that (i) any payments that may become due to Subscriber
(as described on the Site) are specifically conditioned
upon Company's receipt of full payment from the
applicable advertiser, and that any such payments do not
become due to Subscriber until 60 days after Company's
receipt of full payment from the applicable advertiser,
and (ii) if Company does not receive the applicable
payment in full from any such advertiser, or Company’s
payment from advertiser is later reversed at any time,
Company shall have no liability or responsibility to
Subscriber (and Subscriber hereby releases Company) with
respect thereto.
If Subscriber disputes any payment made in connection
with the Services, Subscriber must notify Company in
writing within thirty (30) days of any such payment.
Failure to so notify Company shall result in the waiver
by Subscriber of any claims related to such disputed
payment.
Payment shall be calculated solely based on records
maintained by Company. No other measurements or
statistics of any kind shall be accepted by Company or
have any effect under this Agreement.
Company shall not be liable for any payment based on (i)
any fraudulent impressions generated by any person,
robot, automated program or similar device or for
fraudulent impressions similarly generated on any
advertisements, as reasonably determined by Company; (ii)
advertisements delivered to end users whose browsers have
JavaScript disabled; or (iii) impressions commingled with
a significant number of fraudulent impressions or
fraudulent clicks described in (i) above, or as a result
of another breach of this Agreement by Subscriber for any
applicable pay period. Company reserves the right to
withhold payment or charge back Subscriber's account due
to any of the foregoing or any breach of this Agreement
by Subscriber. In addition, if Subscriber is past due on
any payment to Company in connection with the Services,
Company reserves the right to withhold payment until all
outstanding payments have been made.
To ensure proper payment, Subscriber is solely
responsible for providing and maintaining accurate
contact and payment information associated with
Subscriber's account and Company User ID. For U.S.
taxpayers, this information includes without limitation a
valid U.S. tax identification number and a
fully-completed Form W-9. For non-U.S. taxpayers, this
information includes without limitation either a signed
certification that the taxpayer does not have U.S.
activities or a fully-completed Form W-8 or other form,
which may require a valid U.S. tax identification number,
as required by the U.S. tax authorities. Any bank fees
related to returned or cancelled checks due to a contact
or payment information error or omission may be deducted
from the newly issued payment.
All payments to Subscriber are contingent upon, and will
be made pursuant to Company’s publisher payment policies,
as they may be updated from time to time by the Company
in its sole discretion. Without limiting the generality
of the foregoing, Publisher acknowledges and agrees that
checks payable to Publisher that are not cashed within
180 days from the date of issuance will be cancelled by
Company and will not be reissued, and in the event of
such cancellation, Publisher irrevocably waives any right
to payment of amounts represented by such checks.
Company’s current publisher payment policies are located
at http://help.adbrite.com/index.php?sid=1333070&lang=en&action=show&cat=17.
Subscriber agrees to pay all applicable taxes or charges
imposed by any government entity in connection with
Subscriber's use of the Services. Note: AdBrite may
debit any account to set-off a negative balance in
another account, or to pay any amounts that are past due
for a period of 180 Days.
12. CONFIDENTIALITY. Subscriber agrees not to disclose
Company Confidential Information without Company's prior
written consent. "Company Confidential Information"
includes without limitation: (i) all Company software,
technology, programming, technical specifications,
materials, guidelines and documentation Subscriber
learns, develops or obtains that relate to the Services
or the Site; (ii) click-through rates or other statistics
relating to Site performance in the Services provided to
Subscriber by Company; and (iii) any other information
designated in writing by Company as "confidential" or any
designation to the same effect. "Company Confidential
Information" does not include information that has become
publicly known through no breach by Subscriber or
Company, or information that has been (a) independently
developed without access to Company Confidential
Information as evidenced in writing; (b) rightfully
received by Subscriber from a third party; or (c)
required to be disclosed by law or by a governmental
authority.
13. INFORMATION RIGHTS. Company may retain and use for
its own purposes all information Subscriber provides,
including but not limited to Site demographics and
contact and billing information. Subscriber agrees that
Company may transfer and disclose to third parties
personally identifiable information about Subscriber for
the purpose of approving and enabling Subscriber's
participation in the Services, including to third parties
that reside in jurisdictions with less restrictive data
laws than Subscriber's own jurisdiction. Company
disclaims all responsibility, and will not be liable to
Subscriber, however, for any disclosure of that
information by any such third party. Company may share
aggregate (i.e., not personally identifiable) information
about Subscriber with advertisers, publishers, business
partners, sponsors, and other third parties. In
addition, Subscriber grants Company the right to access,
index, and cache Subscriber's website, or any portion
thereof, including by automated means including Web
spiders or crawlers. Additionally, Subscriber grants to
Company a non-exclusive license to republish in any
medium advertisements, web pages, banners, interstitials
or other content for purposes of marketing Company
products and Services.
14. TERMINATION. Either party may terminate the Services
at any time by notifying the other party by any means.
Company may also terminate or suspend any and all
Services and access to the Site immediately, without
prior notice or liability, if Subscriber breaches any of
the terms or conditions of this Agreement. Any fees paid
hereunder are non-refundable and non-cancelable. Upon
termination of the Subscriber's account, Subscriber's
right to use the Services will immediately cease and
Subscriber will remove all Company HTML code from
Subscriber's websites. All provisions of this Agreement
which by their nature should survive termination shall
survive termination, including, without limitation,
warranty disclaimers, and limitations of liability.
15. REPRESENTATIONS AND WARRANTIES. Subscriber represents
and warrants that (i) Subscriber is the owner of each
website Subscriber designates in connection with the use
of Services or that Subscriber is legally authorized to
act on behalf of the owner of such website for the
purposes of this Agreement, and (ii) Subscriber has all
necessary right, power and authority to enter into this
Agreement and to perform the acts required of Subscriber
hereunder. Subscriber further represents and warrants
that each of Subscriber's websites and any material
displayed therein: (a) comply with all applicable laws,
statutes, ordinances and regulations; (b) do not breach
and have not breached any duty toward or rights of any
person or entity including, without limitation, rights of
intellectual property, publicity or privacy, or rights or
duties under consumer protection, product liability,
tort, or contract theories; and (c) are not hate-related
in content.
16. MISCELLANEOUS. The failure of either party to
exercise in any respect any right provided for herein
shall not be deemed a waiver of any further rights
hereunder. Company shall not be liable for any failure to
perform its obligations hereunder where such failure
results from any cause beyond Company's reasonable
control. If any provision of this Agreement is found to
be unenforceable or invalid, that provision shall be
limited or eliminated to the minimum extent necessary so
that this Agreement shall otherwise remain in full force
and effect and enforceable. This Agreement is not
assignable, transferable or sublicensable by Subscriber
except with Company's prior written consent. This
Agreement shall be governed by and construed in
accordance with the laws of the state California without
regard to the conflict of laws provisions thereof. Both
parties agree that any dispute arising under this
Agreement shall be subject to the exclusive jurisdiction of the state or federal courts sitting in San Francisco,
California and waive any objection they may have to such
jurisdiction, including on the ground that it is an
inconvenient forum for the resolution of a dispute
hereunder. Both parties agree that this Agreement is the
complete and exclusive statement of the mutual
understanding of the parties and supersedes and cancels
all previous written and oral agreements, communications
and other understandings relating to the subject matter
of this Agreement, and that all modifications must be in
a writing signed by both parties, except as otherwise
provided herein. No agency, partnership, joint venture,
or employment is created as a result of this Agreement
and Subscriber does not have any authority of any kind to
bind Company in any respect whatsoever.
