PLEASE READ VERY CAREFULLY THESE TERMS AND CONDITIONS AND THE FAQ BEFORE REGISTERING FOR THE ADPINION ONLINE PROGRAM. PARTICIPATION IN THE ADPINION ONLINE PROGRAM INDICATES THAT YOU ACCEPT THESE TERMS AND CONDITIONS. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS, PLEASE DO NOT REGISTER FOR OR PARTICIPATE IN THE ADPINION PROGRAM.
Introduction. This agreement ("Agreement") between You and Hello, Chair Inc. ("Adpinion") consists of these Adpinion (the "Program") Standard Terms and Conditions ("Terms and Conditions"). A description of the Program, as generally offered by Adpinion, is available at the Adpinion Frequently Asked Questions ("FAQ") URL, located at https://www.adpinion.com/app/frontpage/faq, or such other URL as Adpinion 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.
1. Program Participation. Participation in the Program is subject to Adpinion's prior approval and Your continued compliance with these terms, and/or such other URL as Adpinion may provide from time to time. Adpinion 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 Adpinion may serve third party and/or Adpinion provided advertisements and/or other content (such third party provided advertisements, Adpinion provided advertisements and other content, collectively, "Ads"). Multiple accounts held by the same individual or entity are subject to immediate termination unless expressly authorized in writing by Adpinion (including by electronic mail). You must have and abide by an appropriate privacy policy that clearly discloses that third parties may be placing and reading cookies on your users' browser, or using web beacons to collect information, in the course of ads being served on your website. Your privacy policy should also include information about user options for cookie management.
2. Implementation and Operation of Ads. You agree to comply with the specifications provided by Adpinion from time to time to enable proper delivery, display, tracking, and reporting of Ads in connection with Your Property(ies), including without limitation by not modifying the JavaScript or other programming provided to You by Adpinion in any way, unless expressly authorized in writing by Adpinion (including by electronic mail).
3. Communications Solely With Adpinion. You agree to direct to Adpinion, and not to any advertiser, any communication regarding any Ad(s) or Link(s) displayed in connection with Your Property(ies).
4. Parties' Responsibilities. You are solely responsible for the Property(ies), including all content and materials, maintenance and operation thereof, the proper implementation of Adpinion's specifications, and adherence to the terms of this Agreement, including compliance with the Program Policies. Adpinion 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 to complete any engagement in any activity prohibited by this Agreement. Adpinion is not responsible for anything related to Your Property(ies), including without limitation the receipt of queries from end users of Your Property(ies) or the transmission of data between Your Property(ies) and Adpinion. In addition, Adpinion shall not be obligated to provide notice to You in the event that any Ad is not being displayed properly to, or Referral Event is not being completed properly by, end users of the Property(ies).
5. 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 through any automated, deceptive, fraudulent or other invalid means, 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 unauthorized use of other search engine optimization services and/or software; (ii) edit, modify, filter, truncate or change the order of the information contained in any Ad, or remove, obscure or minimize any Ad in any way without authorization from Adpinion; (iii) frame, minimize, remove or otherwise inhibit the full and complete display of any Web page accessed by an end user after clicking on any part of an Ad ("Advertiser Page"); (iv) redirect an end user away from any Advertiser Page; 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; 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 Web page or any Web site that contains any pornographic, hate-related, violent, or illegal content; (vi) directly or indirectly access, launch, and/or activate Ads through or from, or otherwise incorporate the Ads in any software application, Web site, or other means other than Your Property(ies), and then only to the extent expressly permitted by this Agreement; (vii) "crawl", "spider", index or in any non-transitory manner store or cache information obtained from any Ads or any part, copy, or derivative thereto; (viii) act in any way that violates any Program Policies posted on the Adpinion Web Site, as may be revised from time to time, or any other agreement between You and Adpinion; (ix) disseminate malware; (x) create a new account to use the Program after Adpinion has terminated this Agreement with You as a result of your breach of this Agreement; or (xi) engage in any action or practice that reflects poorly on Adpinion or otherwise disparages or devalues Adpinion's reputation or goodwill. 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.
6. Termination; Cancellation. Subject to any third party agreements You may have with other Adpinion customers (e.g., Your Web hosting company), You may stop displaying Ads on any Property in the Program with or without cause at any time by removing the Adpinion JavaScript or similar programming from Your Properties. You may terminate this Agreement with or without cause at any time by sending written notice of your desire to cancel Your participation in the Program to info@adpinion.com. This Agreement will be deemed terminated within ten (10) business days of Adpinion's receipt of Your notice. Adpinion may investigate any activity that may violate this Agreement. Adpinion 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 Property in all or part of the Program for any reason. In addition, Adpinion reserves the right to terminate without notice any account that has not generated a sufficient number of valid clicks on Ads or valid impressions of Ads (in each case as measured by Adpinion) for a period of two (2) months or more. Upon termination of participation of any Property in the Program or termination of this Agreement for any reason, Sections 3, 6 through 10, and 14 through 17 shall survive termination.
7. Confidentiality. You agree not to disclose Adpinion Confidential Information without Adpinion's prior written consent. "Adpinion Confidential Information" includes without limitation: (a) all Adpinion software, technology, programming, specifications, materials, guidelines and documentation relating to the Program; (b) click-through rates or other statistics relating to Property performance in the Program provided to You by Adpinion; and (c) any other information designated in writing by Adpinion as "Confidential" or an equivalent designation. However, You may accurately disclose the amount of Adpinion's gross payments to You pursuant to the Program. Adpinion Confidential Information does not include information that has become publicly known through no breach by You or Adpinion, or information that has been (i) independently developed without access to Adpinion 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.
8. No Guarantee. Adpinion makes no guarantee regarding the level of impressions of Ads 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. In addition, for the avoidance of doubt, Adpinion does not guarantee the Program will be operable at all times or during any down time (i) caused by outages to any public Internet backbones, networks or servers, (ii) caused by any failures of Your equipment, systems or local access services, (iii) for previously scheduled maintenance or (iv) relating to events beyond Adpinion's (or its wholly owned subsidiaries') control such as strikes, riots, insurrection, fires, floods, explosions, war, governmental action, labor conditions, earthquakes, natural disasters, or interruptions in Internet services to an area where Adpinion (or its wholly owned subsidiaries) or Your servers are located or co-located.
9. No Warranty. Adpinion 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 ARE BASED ON OR DISPLAYED IN CONNECTION WITH NON-Adpinion CONTENT, Adpinion SHALL NOT HAVE ANY LIABILITY IN CONNECTION WITH THE DISPLAY OF SUCH ADS.
10. 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) ADPINION'S AGGREGATE LIABILITY TO PUBLISHER UNDER THIS AGREEMENT FOR ANY CLAIM IS LIMITED TO THE NET AMOUNT PAID BY ADPINION 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.
11. Payment. You shall receive a payment related to the number of valid clicks on Ads in connection with Your Property(ies), and/or other events performed in connection with the display of Ads on Your Property(ies), in each case as determined by Adpinion 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 Adpinion within approximately thirty (30) days after the end of each calendar month that Ads are running on Your Property if Your earned balance is $25 or more. In the event the Agreement is terminated, Adpinion 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 Adpinion's receipt of Your written request, including by email, to terminate the Agreement) or by Adpinion. In no event, however, shall Adpinion make payments for any earned balance less than $10. Notwithstanding the foregoing, Adpinion shall not be liable for any payment based on: (a) any amounts which result from invalid clicks or impressions on Ads generated by any person, bot, automated program or similar device, as reasonably determined by Adpinion, including without limitation through any clicks or impressions (i) originating from Your IP addresses or computers under Your control, (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 Adpinion may deliver; or (d) 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. Adpinion 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 Adpinion'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 Property(ies) defaults on payment for such Ads to Adpinion. In addition, if You are past due on any payment to Adpinion in connection with any Adpinion program, Adpinion 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 Adpinion. To ensure proper payment, You are solely responsible for providing and maintaining accurate address and other contact information as well as 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. Adpinion may change its pricing and/or payment structure at any time. If You dispute any payment made under the Program, You must notify Adpinion in writing within thirty (30) days of any such payment; failure to so notify Adpinion 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 Adpinion. No other measurements or statistics of any kind shall be accepted by Adpinion 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 Properties managed by You that require separate payments) unless expressly authorized in writing by Adpinion (including by electronic mail). From time to time Adpinion may be holding funds, payments and other amounts due to You in connection with the Adpinion Program. You acknowledge and agree that Adpinion may, without further notice to You, contribute to a charitable organization selected by Adpinion all funds, payments and other amounts related to the Adpinion Program that are held by Adpinion and that are due to you (if any), but which Adpinion is unable to pay or deliver to You because Your account is Inactive (as defined below). "Inactive" means that, based on Adpinion's records: (a) for a period of two (2) years or more You have not logged into your account or accepted funds, payments or other amounts that Adpinion has attempted to pay or deliver to You, and (b) Adpinion has been unable to reach You, or has not received adequate payment instructions from You, after contacting You at the address shown in Adpinion's records.
12. Publicity. You agree that Adpinion may use Your name and logo in presentations, marketing materials, customer lists, financial reports, Web site listings of customers. If You wish to use Adpinion'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 not of malicious intent or does not reflect poorly on Adpinion or otherwise disparage or devalue Adpinion's reputation or goodwill.
13. Representations and Warranties. You represent and warrant that (a) all of the information provided by You to Adpinion to enroll in the Program is correct and current; (b) You are the owner of each Property or You are legally authorized to act on behalf of the owner of such Property(ies) for the purposes of this Agreement and the Program; (c) You have all necessary right, power, and authority to enter into this Agreement and to perform the acts required of You hereunder; and (d) You have complied and will continue to comply with all applicable laws, statutes, ordinances, and regulations (including without limitation the CAN-SPAM Act of 2003 and any relevant data protection or privacy laws) in Your performance of any acts hereunder. In addition, to the extent that Your Site is a media player (1) You represent and warrant that You have a valid license to use and distribute such media player (including all content therein, including without limitation any Ads or Ad Units) for the purposes of this Agreement and the Program; and (2) You shall ensure that any media player(s) that constitute the Site shall comply with the terms and conditions set forth herein. You further represent and warrant that each Property 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 pornographic, hate-related or otherwise violent in content.
14. Your Obligation to Indemnify. You agree to indemnify, defend and hold Adpinion, 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 Property(ies), and/or Your breach of any term of this Agreement.
15. Adpinion Rights. You acknowledge that Adpinion owns all right, title and interest, including without limitation all Intellectual Property Rights (as defined below), in and to the Program (including Adpinion's ad serving technology, implied licenses, and excluding items licensed by Adpinion 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 Adpinion services, software, or documentation, or create or attempt to create a substitute or similar service or product through use of or access to the Program or proprietary information related thereto. You will not remove, obscure, or alter Adpinion's copyright notice, Brand Features, or other proprietary rights notices affixed to or contained within any Adpinion services, software, or documentation (including without limitation the display of Adpinion's Brand Features with Ads as applicable). "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.
16. Information Rights. Adpinion may retain and use, subject to the terms of the Adpinion Privacy Policy (located at http://www.adpinion.com/privacy.html, or such other URL as Adpinion may provide from time to time), all information You provide, including but not limited to Property demographics and contact and billing information. You agree that Adpinion 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. Adpinion 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. Adpinion disclaims all responsibility, and will not be liable to You, however, for any disclosure of that information by any such third party. Adpinion may share non-personally-identifiable information about You, including Property URLs, Property-specific statistics and similar information collected by Adpinion, with advertisers, business partners, sponsors, and other third parties.
17. Miscellaneous. This Agreement shall be governed by the laws of California, except for its conflicts of laws principles. Any dispute or claim arising out of or in connection with this Agreement shall be adjudicated in San Francisco County, California. The parties specifically exclude from application to the Agreement the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act. 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 Adpinion. 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 Adpinion. Notwithstanding the foregoing, Adpinion may assign this Agreement to any affiliate at any time without notice. The relationship between Adpinion and You is not one of a legal partnership relationship, but is one of independent contractors.