The Web pages and systems available at
www.adsbyer.com, and all linked pages or
systems unless indicated otherwise ("Site" or "System"),
are owned and operated by Company, and are accessed by you ("Advertiser
Member") under the following terms and conditions:
- 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 to target particular end user demographics, as described
more fully on the Site, and which demographics are selected by Advertiser
Member through the process provided on the Site ("Services").
Company may change, suspend or discontinue the Services (or Advertiser Member'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 Advertiser Member 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 Advertiser Member a notice via email
or postal mail. Use of the Services by Advertiser Member following such
notification constitutes Advertiser Member's acceptance of the modified
terms and conditions. Advertiser Member certifies to Company that if Advertiser
Member is an individual (i.e., not a corporation) Advertiser Member is at
least 18 years of age. Advertiser Member also certifies that it is legally
permitted to use the Services and access the Site and System, 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.
- IMPLEMENTATION
Advertiser Member 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 in any
way the JavaScript or other programming that might be provided to Advertiser
Member by Company.
- COMMUNICATIONS SOLELY WITH COMPANY
Advertiser Member 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 Advertiser Member's use of the Services.
- CONTENT
The System, Site and its contents are protected by U.S. and international
copyright laws and/or Patents, and are intended solely for the use of Company
Advertiser Members 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 and/or patents. 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. Advertiser Member shall abide by all
copyright notices, information, and restrictions contained in any Content
accessed in connection with the Services. Advertiser Member acknowledges
and agrees that if Advertiser 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.
- RESTRICTIONS
Advertiser Member (whether an 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 Advertiser Member is also
a publisher, Advertiser Member 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 Advertiser Member'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 Advertiser Member may have breached
the terms of this paragraph), or for no reason at all, subject to the provisions
of paragraph 14 (Termination).
Advertiser Member is responsible for all of its activity in connection with
the Services. Any fraudulent, abusive, or otherwise illegal activity is
grounds for termination of Advertiser Member'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.
Advertiser Member 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 Advertiser Member is not logged in.
- DISCLAIMERS
- Advertiser Member acknowledges and agrees that Company has no special
relationship with or fiduciary duty to Advertiser Member 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 Advertiser
Member accesses or receives via the Site or Services; what Content other
advertiser members may make available, publish or promote in connection
with the Services; what effects any Content may have on Advertiser Member
or its users or customers; how Advertiser Member or its users or customers
may interpret, view or use the Content; what actions Advertiser Member
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 Advertiser Member is also a publisher, Advertiser
Member 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 Advertiser
Member is solely responsible (and assumes all liability and risk) for
determining whether or not such Content is appropriate or acceptable
to Advertiser Member, and (ii) with respect to advertising, Advertiser
Member 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 Advertiser Member is solely responsible
(and assumes all liability and risk) for determining whether or not
such Content is appropriate or acceptable to Advertiser Member's business.
- Advertiser Member releases Company from all liability in any way relating
to Advertiser Member'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 Advertiser Member's
advertising media 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
total payment to be made by Advertiser Member in connection with the
Services unless specifically provided otherwise in a signed writing
from the Company to Advertiser Member.
-
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 ADVERTISER
MEMBER 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 ADVERTISER MEMBER.
- 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 Advertiser Member's use of
the Services.
- COPYRIGHT DISPUTE AND PRIVACY POLICIES
Review our Copyright Dispute Policy at http://www.adsbyer.com/copyrightdispute.aspx
if Advertiser Member believes that material or content residing on or accessible
through the Company's Site or Services infringes a copyright. Please also
review the Company's Privacy Policy at http://www.thewebyourway.com/Docs/Terms.aspx#pp
for information regarding Company's policies and practices regarding the
use of Advertiser Member's personal information.
- REGISTRATION AND SECURITY
As a condition to using Services, Advertiser Member may is required to register
with Company and may select a password and Advertiser Member user name (a
user name may be assigned to conceal identity), which may be referred to
as a ("Company User ID"). Advertiser Member 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 Advertiser Member's account. Advertiser Member 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 Advertiser Member without appropriate
authorization; (iii) register for the Services using more than one Company
User ID. Company reserves the right to refuse registration of, cancel or
change a Company User ID in its discretion. Advertiser Member shall be responsible
for maintaining the confidentiality of Advertiser Member's Company password
that is associated with the Company User ID.
- INDEMNITY
Advertiser Member 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 Advertiser Member's access to the Site, use of the Services, the
violation of this Agreement by Advertiser Member, or the infringement by
Advertiser Member, or any third party using the Advertiser Member's account,
of any intellectual property or other right of any person or entity.
- 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 ADVERTISER MEMBER 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 ADVERTISER
MEMBER.
- FEES AND PAYMENT
Some of the Services require payment of fees. Advertiser Member shall pay
all applicable fees, as described on the Site in connection with such Services
selected by Advertiser Member. Company reserves the right to change its
price list and to institute new charges at any time, upon prior notice to
Advertiser Member, which may be sent by email or posted on the Site.
- If Advertiser Member purchases advertising services from the Company
under this agreement, ten (10) percent of the total amount due will be
paid at the time of purchasing the advertising services. Advertiser Member
will be billed weekly for all "Member Clicks" for that week
on their advertising content (wherein "Member Clicks" is defined
as clicks on advertising content by identifiable registered Web Your Way
end user network members of the Company, and clicks by non-registered
end users on the advertising content are free ("Free Clicks")
to the Advertising Member. Of course, both the number of Member Clicks
and Free Clicks on the advertising content of Advertising Member will
be reported weekly along with an invoice and billing summary. All invoices
for advertising services are due immediately, and must be paid before
the next weekly invoice is sent, or penalties may be due along with potential
cancellation of the advertising services. Once the total number of clicks
by Web Your Way registered members that were purchased by Advertising
Member as advertising services under this agreement are completed, no
more weekly billings will occur.
- If Advertiser Member is also a publisher, Advertiser Member shall receive
as payment a percentage of the revenue of advertisements displayed in
connection with Advertiser Member's publication website(s) or webpages
as determined by Company for Advertiser Member's use of the Services and
shall be provided in writing or posted on the Site. Advertiser's payable
revenue as a publisher shall be determined on the first day of each month,
on which day those revenues accrued to Advertiser Member's publisher account
sixty (60) or more days earlier shall become eligible to be paid. Publisher
payments to Advertiser Member shall be sent by Company within approximately
ten (10) days of the previous calendar month end, if Advertiser Member's
earned balance is greater than or equal to Company's minimum publisher
revenue check amount. If Advertiser Member's earned publisher balance
is less than Company's minimum publisher revenue 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 Advertiser Member
is a publisher, Advertiser Member agrees that (i) any payments that may
become due to Advertiser Member (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 Advertiser
Member 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 Advertiser for publication fees (and Advertiser Member hereby releases
Company) with respect thereto. If Advertiser Member disputes any payment
made in connection with the Services, Advertiser Member must notify Company
in writing within thirty (30) days of any such payment. Failure to so
notify Company shall result in the waiver by Advertiser Member 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 Advertiser Member for any applicable pay period.
Company reserves the right to withhold payment or charge back Advertiser
Member's publisher account due to any of the foregoing or any breach of
this Agreement by Advertiser Member. In addition, if Advertiser Member
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, Advertiser Member is solely
responsible for providing and maintaining accurate contact and payment
information associated with Advertiser Member'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.
- Advertiser Member agrees to pay all applicable taxes or charges imposed
by any government entity in connection with Advertiser Member's use of
the Services that generate revenue for Advertiser Member from Company.
Note, Company may debit any account to setoff a negative balance in another
account, or to pay any amounts that are past due for a period of 180 Days.
- CONFIDENTIALITY
Advertiser Member 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 that Advertiser
Member 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 Advertiser Member 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 Advertiser Member or Company, or information that has been (a) independently
developed without access to Company Confidential Information as evidenced
in writing; (b) rightfully received by Advertiser Member from a third party;
or (c) required to be disclosed by law or by a governmental authority.
- INFORMATION RIGHTS
Company may retain and use for its own purposes all information Advertiser
Member provides, including but not limited to Site demographics and contact
and billing information. Advertiser Member agrees that Company may transfer
and disclose to third parties personally identifiable information about
Advertiser Member for the purpose of approving and enabling Advertiser Member's
participation in the Services, including to third parties that reside in
jurisdictions with less restrictive data laws than Advertiser Member's own
jurisdiction. Company disclaims all responsibility, and will not be liable
to Advertiser Member, however, for any disclosure of that information by
any such third party. Company may share aggregate (i.e., not personally
identifiable) information about Advertiser Member with advertisers, publishers,
business partners, sponsors, and other third parties. In addition, Advertiser
Member grants Company the right to access, index, and cache Advertiser Member's
website, or any portion thereof, including by automated means including
Web spiders or crawlers. Additionally, Advertiser Member 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.
- 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
Advertiser Member breaches any of the terms or conditions of this Agreement.
Any fees paid hereunder are non-refundable and non-cancelable. Upon termination
of the Advertiser Member's account, Advertiser Member's right to use the
Services will immediately cease and Advertiser Member will remove all Company
HTML code from Advertiser Member'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.
- REPRESENTATIONS AND WARRANTIES
Advertiser Member represents and warrants that (i) Advertiser is the owner
of each website or media for advertising that Advertiser Member designates
in connection with the use of Services or that Advertiser Member is legally
authorized to act on behalf of the owner of such website or media for the
purposes of this Agreement, and (ii) Advertiser Member has all necessary
right, power and authority to enter into this Agreement and to perform the
acts required of Advertiser Member hereunder. Advertiser Member further
represents and warrants that each of Advertiser Member's websites and any
material displayed therein or media for advertising provided to Company:
(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.
- 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 Advertiser Member except with Company's prior written consent. This Agreement
shall be governed by and construed in accordance with the laws of the state
of Arizona without regard to the conflict of laws provisions thereof. 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 Advertiser Member does not have any authority
of any kind to bind Company in any respect whatsoever.