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PUBLISHER Online Standard Terms and Conditions
Introduction. This agreement ("Agreement")
between You and EzerNet Inc. ("EzerNet") consists
of these Ezernet Advertisingz Online Program (the "Program")
Standard Terms and Conditions ("Terms and Conditions").
A description of the Program, as generally offered by EzerNet,
is available at the Program Frequently Asked Questions ("FAQ")
URL, located at
http://www.advertisingz.com/publisherfaq.htm, or such other
URL as EzerNet may provide from time to time. "You"
or "Publisher" means any entity identified in an
enrollment form submitted by the same or affiliated persons,
and/or any agency or network acting on its (or their) behalf,
which shall also be bound by the terms of this Agreement.
- Program Participation. Participation in the
Program is subject to EzerNet prior approval and Your
continued compliance with the Program Policies ("Program
Policies"), located at
http://www.advertisingz.com/qualification.htm, or such
other URL as EzerNet may provide from time to time. EzerNet
reserves the right to refuse participation to any applicant
or participant at any time in its sole discretion. By
enrolling in the Program, You represent that You are at
least 18 years of age and agree that EzerNet may serve third
party and/or EzerNet provided advertisements (collectively,
"Ads") in connection with the Web site(s) that
You designate (each a "Site") using EzerNet's
advertising serving technology. Multiple accounts held by
the same individual or entity are subject to immediate
termination unless expressly authorized in writing by
EzerNet (including by electronic mail).
- Implementation and Operation of Ads. You agree to
comply with the specifications provided by EzerNet to enable
proper delivery, display, tracking, and reporting of Ads,
and EzerNet Brand Features (as defined in Section 12 below)
in connection with Your Site(s), including without
limitation by not modifying the JavaScript or other
programming provided to You by EzerNet in any way, unless
expressly authorized in writing by EzerNet (including by
electronic mail). Certain EzerNet services available as part
of the Program may contain filtering capability, such as
FamilySafe, that you may access through Your account.
However, if You elect to enable any such filters, You
acknowledge and agree that: (i) it is Your responsibility to
enable such features in accordance with the specifications
provided by EzerNet, and (ii) EzerNet does not and cannot
commit that all ads will be limited to such filter(s).
EzerNet may also include in certain services features which
are unsupported under EzerNet's then current technical
documentation. Such features are provided "as is" and Your
use of them shall be undertaken solely at Your own risk.
- Communications Solely With EzerNet. You agree to
direct to EzerNet, and not to any advertiser, any
communication regarding any Ad(s) displayed in connection
with Your Site(s).
- Parties' Responsibilities. You are solely
responsible for the Site(s), including all content and
materials, maintenance and operation thereof, the proper
implementation of EzerNet's specifications, and adherence to
the terms of this Agreement, including compliance with the
Program Policies. EzerNet reserves the right to investigate,
at its own discretion, any activity that may violate this
Agreement, including but not limited to any use of a
software application to access Ads, or any engagement in any
activity prohibited by this Agreement. EzerNet is not
responsible for anything related to Your Site(s) or the
transmission of data between Your Site(s) and EzerNet. In
addition, EzerNet shall not be obligated to provide notice
to You in the event that Ads are not being displayed
properly to end users of the Site(s).
- Prohibited Uses. You shall not, and shall not
authorize or encourage any third party to: (i) directly or
indirectly generate impressions of or clicks on any Ad(s)
through any automated, deceptive, disingenuous or fraudulent
means, including but not limited to through repeated manual
clicks, the use of robots or other automated tools and/or
computer generated requests, and/or the fraudulent use of
other software; (ii) edit, modify, filter or change the
order of the information contained in any Ad or Ad Unit, or
remove, obscure or minimize any Ad or Ad Unit in any way;
(iii) frame any Web page accessed by an end user after
clicking on any part of a Ad ("Advertiser Page")
or any EzerNet-hosted Web page that contains Ads; (iv)
redirect an end user away from any Advertiser Page or
provide a version of the Advertiser Page that is different
from the page an end user would access by going directly to
the Advertiser Page or the applicable Pop-Undered Page,
intersperse any content between the Ad and the Advertiser
Page or otherwise provide anything other than a direct link
from an Ad to an Advertiser Page; (v) display any Ad(s) 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 Web site), or in any email, or on any Web page or
any Web site that contains any hate-related or violent
content; (vi) directly or indirectly access, launch and/or
activate Ads or Pop Unders through or from, or otherwise
incorporate the Ads or Pop Unders in, any software
application, Web site or other means other than Your Site(s),
and then only to the extent expressly permitted by this
Agreement (e.g., while Pop Unders may be indirectly accessed
from Your Site(s), they may only be displayed on the
appropriate EzerNet-hosted Web page); (vii) "crawl",
"spider", index or in any non-transitory manner store or
cache information obtained from any Pop Unders and/or Ad(s)
or any part, copy or derivative thereof, or (viii) act in
any way that violates any Program Policies posted on the
EzerNet Web Site, as may be revised from time to time. You
acknowledge that any attempted participation or violation of
any of the foregoing is a material breach of this Agreement
and that we may pursue any and all applicable legal and
equitable remedies against You, including an immediate
suspension of Your account or termination of this Agreement,
and the pursuit of all available civil or criminal remedies
relating to fraud and other legal claims.
- Termination; Cancellation. You may cancel the
participation of any Site in the Program and/or terminate
this Agreement with or without cause at any time by removing
the JavaScript or similar programming from Your Sites.
EzerNet may investigate any activity that may violate this
Agreement. EzerNet may at any time, in its sole discretion,
terminate all or part of the Program, terminate this
Agreement, or suspend or terminate the participation of any
Site in all or part of the Program for any reason. In
addition, EzerNet reserves the right to terminate without
notice any account that has not generated a sufficient
number of valid Ads (as measured by EzerNet) for a period of
two (2) months or more. Upon termination of participation of
any Site in the Program or termination of this Agreement for
any reason, Sections 3, 6 through 10, and 14 through 17
shall survive termination.
- Confidentiality. You agree not to disclose
EzerNet Confidential Information without EzerNet's prior
written consent. "EzerNet Confidential Information"
includes without limitation: (a) all EzerNet software,
technology, programming, specifications, materials,
guidelines and documentation relating to the Program; (b)
click-through rates or other statistics relating to Site
performance in the Program provided to You by EzerNet; and
(c) any other information designated in writing by EzerNet
as "Confidential" or an equivalent designation. It does not
include information that has become publicly known through
no breach by You or EzerNet, or information that has been (i)
independently developed without access to EzerNet
Confidential Information, as evidenced in writing; (ii)
rightfully received by You from a third party; or (iii)
required to be disclosed by law or by a governmental
authority.
- No Guarantee. EzerNet makes no guarantee
regarding the level of impressions of or clicks on any Ad,
the timing of delivery of such impressions and/or clicks, or
the amount of any payment to be made to You under this
Agreement.
- No Warranty. EzerNet MAKES NO WARRANTY, EXPRESS
OR IMPLIED, INCLUDING WITHOUT LIMITATION WITH RESPECT TO
ADVERTISING, AND OTHER SERVICES, AND EXPRESSLY DISCLAIMS THE
WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY
AND FITNESS FOR ANY PARTICULAR PURPOSE. TO THE EXTENT ADS
AND POP UNDERS ARE BASED ON NON-EZERNET CONTENT, EZERNET
SHALL NOT HAVE ANY LIABILITY IN CONNECTION WITH THE DISPLAY
OF SUCH ADS AND POP UNDERS.
- Limitations of Liability; Force Majeure. EXCEPT
FOR ANY INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS
HEREUNDER OR YOUR BREACH OF ANY INTELLECTUAL PROPERTY RIGHTS
AND/OR PROPRIETARY INTERESTS RELATING TO THE PROGRAM, (i) IN
NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT
FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, OR
PUNITIVE DAMAGES WHETHER IN CONTRACT, TORT OR ANY OTHER
LEGAL THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE
OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND (ii)
EzerNet'S AGGREGATE LIABILITY TO PUBLISHER UNDER THIS
AGREEMENT FOR ANY CLAIM IS LIMITED TO THE NET AMOUNT PAID BY
EzerNet TO PUBLISHER DURING THE THREE MONTH PERIOD
IMMEDIATELY PRECEDING THE DATE OF THE CLAIM. Each party
acknowledges that the other party has entered into this
Agreement relying on the limitations of liability stated
herein and that those limitations are an essential basis of
the bargain between the parties. Without limiting the
foregoing and except for payment obligations, neither party
shall have any liability for any failure or delay resulting
from any condition beyond the reasonable control of such
party, including but not limited to governmental action or
acts of terrorism, earthquake or other acts of God, labor
conditions, and power failures.
- Payment. You shall receive a payment related to
Revenue Share on Ads displayed in connection with Your
Site(s) as determined by EzerNet for its participants in the
Program. Unless otherwise agreed to by the parties in
writing (including by electronic mail), payments to You
shall be sent by EzerNet within approximately thirty (30)
days after the end of each calendar month that Ads are
running on Your Site and/or Pop Unders Pages if Your earned
balance is $100 or more. In the event the Agreement is
terminated, EzerNet shall pay Your earned balance to You
within approximately ninety (90) days after the end of the
calendar month in which the Agreement is terminated by You
(following EzerNet's receipt of Your written request,
including by email, to terminate the Agreement) or by
EzerNet. In no event, however, shall EzerNet make payments
for any earned balance less than $50. Notwithstanding the
foregoing, EzerNet shall not be liable for any payment based
on (a) any amounts which result from invalid clicks or
activities on Ads generated by any person, bot, automated
program or similar device, as reasonably determined by
EzerNet, including without limitation through any clicks or
impressions (i) originating from Your IP addresses or
computers under Your control or (ii) solicited by payment of
money, false representation or request for end users to
click on Ads; (b) Ads delivered to end users whose browsers
have JavaScript disabled; (c) Ads benefiting charitable
organizations and other placeholder or transparent Ads that
EzerNet may deliver; (d) EzerNet advertisements for its own
products and/or services; or (e) clicks co-mingled with a
significant number of invalid clicks described in (a) above,
or as a result of any breach of this Agreement by You for
any applicable pay period. EzerNet reserves the right to
withhold payment or charge back Your account due to any of
the foregoing or any breach of this Agreement by You,
pending EzerNet's reasonable investigation of any of the
foregoing or any breach of this Agreement by You, or in the
event that an advertiser whose Ads are displayed in
connection with Your Site(s) defaults on payment for such
Ads to EzerNet. In addition, if You are past due on any
payment to EzerNet in connection with any EzerNet program
(including without limitation EzerNet advertising services),
EzerNet reserves the right to withhold payment until all
outstanding payments have been made or to offset amounts
owed to You in connection with the Program by amounts owed
by You to EzerNet. To ensure proper payment, You are solely
responsible for providing and maintaining accurate contact
and payment information associated with Your account. 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. You agree to pay all
applicable taxes or charges imposed by any government entity
in connection with Your participation in the Program.
EzerNet may change its pricing and/or payment structure at
any time. If You dispute any payment made under the Program,
You must notify EzerNet in writing within thirty (30) days
of any such payment; failure to so notify EzerNet shall
result in the waiver by You of any claim relating to any
such disputed payment. Payment shall be calculated solely
based on records maintained by EzerNet. No other
measurements or statistics of any kind shall be accepted by
EzerNet or have any effect under this Agreement. The
payments made under this Agreement are for use by You only
and may not be transferred or in any manner passed on to any
third party (i.e., distributed to Sites managed by You that
require separate payments) unless expressly authorized in
writing by EzerNet (including by electronic mail).
- Publicity. You agree that EzerNet may use Your
name and logo in presentations, marketing materials,
customer lists, financial reports and Web site listings of
customers. If You wish to use EzerNet's trade names,
trademarks, service marks, logos, domain names, and other
distinctive brand features ("Brand Features"),
You may do so, so long as such use is in compliance with
this Agreement.
- Representations and Warranties. You represent and
warrant that (a) all of the information provided by You to
EzerNet to enroll in the Program is correct and current; (b)
You are the owner of each Site or that You are legally
authorized to act on behalf of the owner of such Site(s) for
the purposes of this Agreement and the Program; and (c) You
have all necessary right, power and authority to enter into
this Agreement and to perform the acts required of You
hereunder. You further represent and warrant that each Site
and any material displayed therein: (i) comply with all
applicable laws, statutes, ordinances and regulations; (ii)
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 (iii) are
not hate-related or otherwise violent in content.
- Your Obligation to Indemnify. You agree to
indemnify, defend and hold EzerNet, its agents, affiliates,
subsidiaries, directors, officers, employees, and applicable
third parties (e.g. relevant advertisers, syndication
partners, licensors, licensees, consultants and contractors)
(collectively "Indemnified Person(s)")
harmless from and against any and all third party claims,
liability, loss, and expense (including damage awards,
settlement amounts, and reasonable legal fees), brought
against any Indemnified Person(s), arising out of, related
to or which may arise from Your use of the Program, the
Site(s), and/or Your breach of any term of this Agreement.
- EzerNet Rights. You acknowledge that EzerNet owns
all right, title and interest, including without limitation
all Intellectual Property Rights (as defined below), in and
to the Program (including EzerNet's ad serving technology
and Brand Features, and excluding items licensed by EzerNet
from third parties), and that You will not acquire any
right, title, or interest in or to the Program except as
expressly set forth in this Agreement. You will not modify,
adapt, translate, prepare derivative works from, decompile,
reverse engineer, disassemble or otherwise attempt to derive
source code from any EzerNet services, software, or
documentation. You will not remove, obscure, or alter
EzerNet's copyright notice, trademarks, or other proprietary
rights notices affixed to or contained within any EzerNet
services, software, or documentation. "Intellectual
Property Rights" means any and all rights existing
from time to time under patent law, copyright law,
semiconductor chip protection law, moral rights law, trade
secret law, trademark law, unfair competition law, publicity
rights law, privacy rights law, and any and all other
proprietary rights, as well as, any and all applications,
renewals, extensions, restorations and re-instatements
thereof, now or hereafter in force and effect worldwide.
- Information Rights. EzerNet may retain and use
for its own purposes all information You provide, including
but not limited to Site demographics and contact and billing
information. You agree that EzerNet may transfer and
disclose to third parties personally identifiable
information about You for the purpose of approving and
enabling Your participation in the Program, including to
third parties that reside in jurisdictions with less
restrictive data laws than Your own. EzerNet may also
provide information in response to valid legal process, such
as subpoenas, search warrants and court orders, or to
establish or exercise its legal rights or defend against
legal claims. EzerNet disclaims all responsibility, and will
not be liable to You, however, for any disclosure of that
information by any such third party. EzerNet may share
aggregate (i.e., not personally identifiable) information
about You with advertisers, business partners, sponsors, and
other third parties. In addition, You grant EzerNet the
right to access, index and cache the Site(s), or any portion
thereof, including by automated means including Web spiders
or crawlers.
- Miscellaneous. This Agreement shall be governed
by the laws of Malaysia, except for its conflicts of laws
principles. Any dispute or claim arising out of or in
connection with this Agreement shall be adjudicated in
Malaysia. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter
hereof. Any modifications to this Agreement must be made in
a writing executed by both parties, by Your online
acceptance of updated terms, or after Your continued
participation in the Program after such terms have been
updated by EzerNet. The failure to require performance of
any provision shall not affect a party's right to require
performance at any time thereafter, nor shall a waiver of
any breach or default of this Agreement constitute a waiver
of any subsequent breach or default or a waiver of the
provision itself. If any provision herein is held
unenforceable, then such provision will be modified to
reflect the parties' intention, and the remaining provisions
of this Agreement will remain in full force and effect. You
may not resell, assign, or transfer any of Your rights
hereunder. Any such attempt may result in termination of
this Agreement, without liability to EzerNet.
Notwithstanding the foregoing, EzerNet may assign this
Agreement to any affiliate at any time without notice. The
relationship between EzerNet and You is not one of a legal
partnership relationship, but is one of independent
contractors.
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