Publisher Program Terms and Conditions
Proximic, Inc. ("Proximic", "Company", "we" or "us") is pleased to provide You ("Subscriber", "You" or "Your") with the opportunity to participate in our Proximic Subscriber Agreement ("Subscriber Agreement"), subject to acceptance of Your Registration Form by us, and Your agreement to the Terms and Conditions of the Proximic Subscriber Agreement, as amended by us from time to time ("Agreement" or "Terms and Conditions").
PLEASE READ THIS PROXIMIC SUBSCRIBER AGREEMENT CAREFULLY BEFORE USING THE SERVICES OF THE SUBSCRIBER AGREEMENT OFFERED BY PROXIMIC. THIS AGREEMENT IS AN AGREEMENT BETWEEN COMPANY AND YOU TO USE THE PROXIMIC SERVICES. BY (I) CHECKING THE APPLICABLE BOX ON THE REGISTRATION SCREEN AND CLICKING ON THE "SUBMIT" BUTTON BELOW OR (II) ENTERING INTO ANY AGREEMENT REFERRING HERTO, YOU AGREE TO BECOME BOUND BY THE STANDARD 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 AND 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 and Services available at www.proximic.com, and all linked pages unless indicated otherwise ("Proximic's Site" or "Proximic Network"), are owned and operated by Company, and are accessed by You ("Subscriber") under the following Terms and Conditions:
Our Services and Access thereto.
Subject to the Terms and Conditions of this Agreement, we may offer to provide certain services that relate to facilitating the purchase and sale of Internet advertisements by bringing together Internet advertisers ("Advertisers") and publishers ("Publishers") participating in our Service, as described more fully on Proximic's Site, and which are selected by Subscriber through the process provided on Proximic's Site ("Services"). The Proximic's Site includes www.proximic.com and equivalent domains in P.R. of China, the United Kingdom and Germany and all other Web sites we operate or other media or services we may offer to consumers from time to time. 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 or limit access to the Services to any applicant at any time.
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.
By enrolling in the Subscriber Agreement as a Publisher, You agree that Proximic may present Proximic and/or third party advertisements, shopping items and/or creative advertisements (such Proximic-served advertisements, collectively, "Ads", "Advertisements", "Results") as well as search results and/or Site search results (such Proximic-served other results, collectively, "Content Results") on and in connection with the Web site(s) you have enrolled and designated in the Subscriber Agreement and the Atom, RSS, or other feeds distributed through such Web site(s) (each such Web site or feed, a "Site"). For the avoidance of doubt, any reference in this Agreement or the Program Policies to an individual "Web page", "Web site", "Web site page" or the like that is part of the Site will also mean feeds distributed through such Web site. As a condition of Your participation in the Subscriber Agreement, You agree to (i) use ethical and legal business practices, (ii) maintain a privacy policy on Your Site that is made available to users of Your Site. 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. This Agreement is void where prohibited by law, and the right to access the Proximic Site is revoked in such jurisdictions. Multiple accounts held by the same individual or entity are subject to immediate termination unless expressly authorized in writing by Proximic (including by electronic mail).
Your Information and Representations About You.
You represent, certify and warrant that (a) You have the authority to act on behalf of the company and/or Web site that You are registering with the Subscriber Agreement, (b) You are the registered owner of Your Site including its content and domain name (c) that You are legally permitted to use the Services and access the Site, and take full responsibility for the selection and use of the Services, and (d) if You are an individual (i.e., not a corporation) You are at least 18 years of age, and (e) all information You provide to us, including but not limited to information provided in the Registration Form and all other information about Your business provided in connection with the Subscriber Agreement, will be accurate, complete and current, to the best of Your knowledge, and kept up to date throughout the Term. You grant to Proximic and its Affiliates (which include but are not limited to subsidiaries, parent company and related parties), the right to transmit, process and maintain the personal and business information that You provide to us via the Subscriber Agreement in the United States, United Kingdom, P.R. of China, Germany and elsewhere, and You further agree and hereby grant Proximic the right to use such information for Proximic's business purposes and share such information with third parties, including but not limited to Proximic's agents, accountants, attorneys and other representatives for Proximic's business purposes.
Your Information and Representations About Your Site.
You are solely responsible for Your Site(s), including all content and materials, maintenance and operation thereof. You represent and warrant at all times that: (a) You have all necessary rights and authority to enter into this Agreement, to place advertisements on Your Site, and to use all materials contained on Your Site, and (b) Your Site and all promotional does not and will not contain any Unacceptable Content nor be rendered in an Unacceptable Format. "Unacceptable Content" means content and Site processes that: (1) are misrepresentative, defamatory, or libelous, (2) violate any applicable law or regulation, (3) infringe or violate the patents, copyrights, trademarks, rights of publicity, rights of privacy, moral rights, music performance or other music-related rights, or any other right of any third party, or (4) contain any of the following: (i) nudity, pornography, or offensive graphics, content or language; (ii) hate material or inappropriate or controversial subject matter of any nature; (iii) information pertaining to illegal activity of any kind; or (iv) information pertaining to hacking, cracking, or warez; or (v) any breach of any duty toward or rights of any person or entity including, without limitation, rights of publicity or privacy, or has not otherwise resulted in any consumer fraud, product liability, tort, breach of contract, injury, damage or harm of any kind to any person or entity. An "Unacceptable Format" for a Site is one where the site: (1) resides on a free hosting service, (2) has content consisting primarily of advertising material, (3) lacks a professional appearance, or (4) is rendered in a language which Proximic doesn't chose to process. Any actual or suspected violation of this provision or any suspected fraudulent, abusive or otherwise illegal content or activity by You is grounds for immediate termination of Your participation in the Subscriber Agreement and this Agreement.
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, unless expressly authorized in writing by Proximic (including by electronic mail).. You are solely responsible for the proper implementation of Proximic's specifications, and adherence to the terms of this Agreement, including compliance with the Program Policies.
If Subscriber is a Publisher, Subscriber agrees to present the Advertisements to users of Subscriber's Site in a form and manner and using creative elements as specified by Proximic from time to time, and Subscriber will direct the Advertisements to the location indicated to Subscriber by Proximic.
If Subscriber is a Publisher, Subscriber agrees not to alter, modify, circumvent, impair, disable or otherwise interfere with the Advertisements and including without limitation related logo, creative, programming, JavaScript and other information or materials provided by Proximic ("Proximic Materials"), including with respect to any tracking code and/or other technology and/or methodology required or established by Proximic in connection with the Subscriber Agreement. You understand and agree that breach of the provision or any part hereof may result in immediate termination of Your participation the Subscriber Agreement.
All content and Site-based Ads (and Ads served in response to end user clicks on and queries entered into, if any) shall be grouped by Proximic and displayed with Links (where applicable) to applicable end users from Territories (as defined below) of the Site(s) as ad units (such groups of Ads and/or Links collectively referred to as "Ad Units") in standard formats as offered generally by Proximic from time to time, as may be described in the FAQ. You may select a format approved by Proximic for the display of Ad Units in connection with the Site(s), but You acknowledge and agree that Ads and/or Links: (i) shall only be displayed in connection with the Site(s), each of which is subject to review and approval by Proximic in its discretion at any time; and (ii) shall be subject to the placement guidelines set forth herein. In addition, You agree that while You may display more than one (1) Ad Unit on each Site Web page, You shall not display any Ad Unit on a page that contains Ads associated with another Proximic customer (e.g., Your Web hosting company), unless authorized to do so by Proximic.
Proximic 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, Links or Content Results, or any engagement in any activity prohibited by this Agreement. Proximic is not responsible for anything related to Your Site(s), including without limitation the receipt of queries from end users of Your Site(s) or the transmission of data between Your Site(s) and Proximic. In addition, Proximic shall not be obligated to provide notice to You in the event that any Ad, Link or Content Result is not being displayed properly to end users of Your Site(s).
If You subscribe as Publisher, You agree not to display on the same Web page in connection with which any Ad Unit, Ad, Link, Search Box, or Referral Button is displayed (a "Serviced Page") any advertisement(s) that an end user of Your Site(s) would reasonably confuse with a Proximic advertisement or otherwise associate with Proximic. If You receive content or Site-based Ads, Proximic allows You to display on any Serviced Page any non-Proximic content-targeted advertisement(s) as long as the aforesaid confusion is avoided. Certain Proximic services available as part of the Subscriber Agreement may contain filtering capability, such as blocking of results containing certain keywords or directly linking to link with certain patterns, 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 Proximic, and (ii) Proximic does not and cannot commit that all results (including Ads, Links and Content Results) will be limited to results elected by enabling such filter(s). Proximic may also include in certain services features which are unsupported under Proximic'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 Proximic.
Subscriber agrees to direct to Proximic and not to any advertiser or Subscriber, as the case may be, all communications regarding any matter arising out of Subscribers use of the Services.
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.
Prohibited Activities.
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 engage in any of the following activities:
(i) artificially inflate traffic counts to the Proximic Network or participating advertisers using any device, program, robot or other means (including manual), or permit or allow anyone else to do so. You further agree not to place Ads in search engine advertising, newsgroups, unsolicited e-mail, banner networks, counters, chatrooms or guestbooks;
ii) place Ads in a misleading way for any user, obscure or partly obscure the Ads from any user's view;
iii) click on, or provide users of Your Site or any other party any incentives or encouragement to click on the Ads (including but not limited to displaying "support this Site" content);
iv) edit, modify, filter, alter, disable or change the order of the information contained in any advertisement, or remove, obscure or minimize any advertisement in any way;
v) modify, alter, impair or disable or otherwise interfere with the Ads or any tracking code, JavaScript or other process established by Proximic in connection with the Subscriber Agreement, including display of any Web page or other content as an alternative to the Web page accessed by clicking on the Ads;
vi) 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;
vii) 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 Web site);
viii) "crawl", "spider", index or in any non-transitory manner store or cache information obtained from any Ads, Links or Content Results, or any part, copy, or derivative thereto;
ix) act in any way that violates any Program Policies posted on the Proximic's Site(s), as may be revised from time to time, or any other agreement between You and Proximic, or engage in any action or practice that reflects poorly on Proximic or otherwise disparages or devalues Proximic's reputation or goodwill.
x) use of Proximic's 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 Proximic's Site, or any processes that run or are activated while the Subscriber is not logged in.
Subscriber is responsible for all of its activity in connection with the Services. 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 and/or termination of this Agreement, and the pursuit of all available civil or criminal remedies.
Payment and Reporting.
Some of the Services require payment of fees. Subscriber shall pay all applicable fees, as described on the Site or determined in separate agreements 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 an Advertiser, Subscriber shall pre-pay all applicable fees, as described on the Site or determined in separate agreements, in connection with such Services selected by Subscriber.
If Subscriber is a Publisher,
1. 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. If Subscriber has elected to receive Content Results, this payment will NOT contain payments applicable to Content Results. Proximic will make a payment to You based upon the revenue generated via the Advertisements on Your Site, as determined by Proximic ("Subscriber Payment"). You shall receive as payment a percentage of the calculated sale price of advertisements displayed in connection with Your Web site as determined by Company for Your use of the Services. You will have access to an online reporting tool to view activity generated by Advertisements from Your Site. Subscriber Payments shall be calculated solely based on records maintained by Proximic. No other measurements or statistics of any kind shall be accepted by Company or have any effect under this Agreement. Proximic may change its pricing and/or payment structure at any time.
2. Subscriber agrees that (i) any Subscriber Payment that may become due 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 sixty (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.
3. Unless otherwise agreed to by the parties in writing (including by electronic mail), payments to You shall be sent by Proximic via PayPal for each month or portion thereof in which You participate in the Subscriber Agreement and have Ads running on Your Site for the previous month's activity within approximately thirty (30) days of the end of each calendar month, subject to a minimum of U.S. $50.00. In the event the Agreement is terminated, Proximic 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 Proximic's receipt of Your written request, including by email, to terminate the Agreement) or by Proximic. In no event, however, shall Proximic make payments for any earned balance less than U.S. $10.
4. For the time being Proximic performs all financial transactions with Subscribers through PayPal.com. You are therefore strongly encouraged to read and familiarize Yourself with PayPal policies before participating in this Agreement (see www.paypal.com for details). If You do not have a credit card or live in one of the few countries that PayPal does not serve, please contact us for alternative payment arrangements.
5. Notwithstanding the foregoing, Proximic 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) originating from Your IP addresses or computers under Your control, (iii) advertisements delivered to end users whose browsers have JavaScript and/or Flash disabled, (iv) Ads benefiting charitable organizations and other placeholder or transparent Ads that Proximic may deliver, (v) Proximic advertisements for its own products and/or services (vi) impressions co-mingled with a significant number of fraudulent impressions or fraudulent clicks described in (i) above, or (vii) as a result of another breach of this Agreement by Subscriber for any applicable pay period. Proximic reserves the right to withhold payment or charge back Your account due to any of the foregoing or any breach of this Agreement by Subscriber for any applicable pay period or in the event that an advertiser whose Ads are displayed in connection with Your Site(s) defaults on payment for such Ads to Proximic.
6. To ensure proper payment, You are solely responsible for providing and maintaining accurate contact and payment information in connection with Your participation in the Subscriber Agreement. Any bank fees related to returned or cancelled payments 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 in connection with Your participation in the Subscriber Agreement, including without limitation any applicable VAT or other similar taxes, imposed by any government. U.S. taxpayers must provide, among other information, a valid U.S. tax identification number and a fully-completed Form W-9. Non-U.S. taxpayers either a fully-completed Form W-8 or other form, which may require a valid U.S. tax identification number, a signed certification that the taxpayer does not have U.S. activities as required by the U.S. tax authorities.
Any questions or claims regarding any charges or payments must be raised with us in writing within thirty (30) days after the date of such charges or payments, or else the charges or payments will be deemed final and will not be subject to any further claims or disputes. No refunds, credits or other billing adjustments will be made if a question or dispute is not asserted in writing within thirty (30) days of the applicable charges or payments. 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 Proximic (including by electronic mail).
Publicity.
You agree that Proximic may use Your name and logo in presentations, marketing materials, customer lists, financial reports, Web site listings of customers, and Referral Pages. If You wish to use Proximic's trade names, trademarks, service marks, logos, domain names, and other distinctive brand features ("Brand" or "Brand Features"), You may do so, so long as such use is in compliance with this Agreement and in compliance with a fair use of Proximic's brand. Should You violate the fair use of Proximic's Brand in any kind Proximic may revoke use of Proximic's Brand. If there is any question about usage, requests for clarification or permission about using Proximic's Brand please contact us electronically.
Indemnification.
You agree to indemnify, defend and hold Proximic, its agents, affiliates, subsidiaries, directors, officers, employees, and applicable third parties (e.g. relevant advertisers, syndication partners, licensors, licensees, consultants, contractors and any other third party due to or arising out of Subscriber's access to the Site, use of the Services) (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, Proximic's Site, and/or Your breach of any term of this Agreement.
No Guarantee.
Proximic makes no guarantee regarding the level of impressions of Ads or clicks on any Ad or Content Result, the timing of delivery of such impressions and/or clicks, or the amount of any payment to be made to You under this Agreement.
Warranty 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. YOU EXPRESSLY AGREE THAT YOUR PARTICIPATION IN THE SUBSCRIBER AGREEMENT IS AT YOUR OWN RISK. THE SERVICES OFFERED IN THE SUBSCRIBER AGREEMENT ARE AVAILABLE ON AN "AS IS" BASIS, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. NEITHER PROXIMIC NOR ANY OF ITS AFFILIATES, AGENTS OR MERCHANTS MAKES ANY WARRANTY OR REPRESENTATION WHATSOEVER REGARDING THE SUBSCRIBER AGREEMENT, ANY INFORMATION, PRODUCTS OR SERVICES AVAILABLE THROUGH OR IN CONNECTION WITH THE PROXIMIC NETWORK OR ANY PROXIMIC SERVICE. PROXIMIC HEREBY DISCLAIMS ANY AND ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, (i) ANY WARRANTIES AS TO THE AVAILABILITY, ACCURACY OR CONTENT OF THE PROXIMIC NETWORK, OR ANY INFORMATION, PRODUCTS OR SERVICES AVAILABLE THROUGH OR IN CONNECTION WITH THE SUBSCRIBER AGREEMENT OR ANY OTHER PROXIMIC SERVICE, OR AS TO THE CUSTOMERS, CLICKS, TRAFFIC OR OTHER BENEFITS TO BE GENERATED BY ANY PROXIMIC SERVICE, OR THAT THE SAME WILL BE UNINTERRUPTED OR ERROR-FREE; (ii) ANY WARRANTIES OF TITLE OR WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND (iii) THE RESULTS OF ANY ADVERTISING CAMPAIGN.
Liability Limitations.
ANY LIABILITY OF PROXIMIC OR ANY OF ITS AGENTS OR AFFILIATES INCLUDING, WITHOUT LIMITATION, ANY LIABILITY FOR DAMAGES CAUSED OR ALLEGEDLY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION OR DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR UNLAWFUL USE OF RECORDS, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION, SHALL BE STRICTLY LIMITED TO AN AGGREGATE AMOUNT EQUAL TO THE AMOUNT YOU HAVE BEEN PAID BY PROXIMIC FOR YOUR PARTICIPATION IN THE SUBSCRIBER AGREEMENT IN THE PRIOR TWO (2) MONTH PERIOD. IN NO EVENT SHALL PROXIMIC OR ANY OF ITS AGENTS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OR REVENUES, COSTS OF PROCUREMENT OR SUBSTITUTE GOODS, LOSS OF GOODWILL, DEFAMATION OR LOSS OR DAMAGE TO DATA THAT ARISE FROM ANY ASPECT OF YOUR PARTICIPATION IN THE SUBSCRIBER AGREEMENT OR ANY BREACH OR ERROR BY PROXIMIC OR ITS AGENTS OR MERCHANTS, WHETHER OR NOT PROXIMIC HAS BEEN APPRISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION ON SUCH DAMAGES SHALL APPLY WHETHER OR NOT PROXIMIC IS ABLE TO CORRECT ANY PROBLEM OR ERROR, AND WHETHER OR NOT PROXIMIC HAS BREACHED ANY WARRANTY OR OBLIGATION, OR FAILURE OF THE ESSENTIAL PURPOSE OF ANY OTHER REMEDY, IT BEING THE INTENTION OF THE PARTIES TO ALLOCATE THE RISK OF SUCH DAMAGES AS PROVIDED HEREIN IN ALL CIRCUMSTANCES, AND YOU ACKNOWLEDGE THAT PROXIMIC WOULD NOT HAVE ENTERED INTO THIS AGREEMENT BUT FOR THIS LIMITATION ON SUCH DAMAGES.
Right to Change or Cancel Program.
We reserve the right, in our sole discretion, to change all or part of these Terms and Conditions and/or other Program Policies related to the Subscriber Agreement, including but not limited to prohibiting certain Site content, changing the basis of compensation and/or changing the payment schedule. We further reserve the right to change or discontinue the Subscriber Agreement altogether. We may make these changes at any time, with or without notice to You. It is Your responsibility to check for changes or updates to these Terms and Conditions or other Program Policies, which we will make available in the Subscriber Agreement portion of our Site. Changes or updates to the Subscriber Agreement or these Terms and Conditions shall be effective immediately upon our posting such changes or updates. Your continued participation in the Subscriber Agreement after such terms have been updated by Proximic will constitute Your acceptance of the then-current Terms and Conditions and conditions and any other policies or guidelines associated with the Subscriber Agreement.
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. In addition, Proximic reserves the right to terminate without notice any account (i) that has not generated a sufficient number of valid clicks on Ads or valid impressions of Ads (in each case as measured by Proximic) for a period of two (2) months or more, or (ii) in which the 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, if Subscriber is a publisher, Subscriber may stop displaying Ads, Links or Content Results on any Site in the Program with or without cause at any time by removing the Proximic JavaScript or similar programming from Subscriber's Sites. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, warranty disclaimers, and limitations of liability. Proximic may investigate any activity that may violate this Agreement.
Effect of Termination.
On termination of Your Agreement, whether by You or us, Subscriber's right to use the Services will immediately cease and Subscriber will remove all Company JavaScript or similar programming from Subscriber's Site(s). Further You will receive payments owed to You up to the time of such termination. In addition, all license rights granted to You herein shall terminate immediately, and You shall immediately cease use of any Proximic Materials.
Confidentiality.
You agree not to disclose Proximic Confidential Information without Proximic's prior written consent. "Proximic Confidential Information" includes without limitation: (a) all Proximic 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 Proximic; and (c) any other information designated in writing by Proximic as "Confidential" or an equivalent designation. However, You may accurately disclose the amount of Proximic's gross payments to You pursuant to the Program. Proximic Confidential Information does not include information that has become publicly known through no breach by You or Proximic, or information that has been (i) independently developed without access to Proximic 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.
Intellectual Property Rights.
You acknowledge that Proximic owns all right, title and interest, including without limitation all Intellectual Property Rights (as defined below), in and to the Program (including Proximic's ad serving technology, search technology, referral technology, and Brand Features, and excluding items licensed by Proximic 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 Proximic services, software, or documentation, or create or attempt to create a substitute or similar service or product through use of or access to the Subscriber Agreement or proprietary information related thereto. You will not remove, obscure, or alter Proximic's copyright notice, Brand Features, or other proprietary rights notices affixed to or contained within any Proximic Services, software, or documentation (including without limitation the display of Proximic's Brand Features with Ads, Links, Content Results and / or Search Results, 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.
Information Rights.
Proximic 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 Proximic 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. Proximic 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. Proximic disclaims all responsibility, and will not be liable to Subscriber, however, for any disclosure of that information by any such third party. Proximic may share aggregate (i.e., not personally identifiable) information about Subscriber with advertisers, Subscribers, business partners, sponsors, and other third parties. In addition, Subscriber grants Proximic the right to access, index, and cache Subscriber's Web site, or any portion thereof, including by automated means including Web spiders or crawlers. Additionally, Subscriber grants to Proximic a non-exclusive license to republish in any medium advertisements, Web pages, banners, interstitials or other content for purposes of marketing Proximic products and Services.
Miscellaneous.
(i) Survival. In the event of any termination or expiration of this Agreement for any reason, all provisions of this Agreement which by their nature should survive termination shall survive any such expiration, termination or cancellation, including, without limitation, intellectual property rights, confidentiality, representations, warranty disclaimers, limitations of liability, survival and governing law.
(ii) Assignment. Only Proximic may assign its rights or delegate its obligations under this Agreement. This Agreement is not assignable, transferable or sub-licensable by Subscriber except with Proximic's prior written consent. Any such attempt may result in termination of this Agreement, without liability to Proximic. Notwithstanding the foregoing, Proximic may assign this Agreement to any affiliate at any time without notice.
(iii) No Third Party Beneficiaries. All rights and obligations of the parties hereunder are personal to them. This Agreement is not intended to benefit, nor shall it be deemed to give rise to, any rights in any third party.
(iv) Independent Contractors. The relationship between Proximic and You is not one of a legal partnership relationship, but is one of independent contractors. Neither party shall be deemed to be an employee, agent, or legal representative of the other for any purpose and neither shall have any right, power or authority to create any obligation or responsibility on behalf of the other.
(v) Governing Law. This Agreement will be governed and construed in accordance with the law of the state of California without regard to the conflict of laws provisions thereof. Any dispute or claim between the parties, whether or not arising out of or in connection with this Agreement, shall be finally settled by binding arbitration in accordance with the International Chamber of Commerce Rules of Arbitration then in effect applying Delaware law by one arbitrator appointed in accordance with said rules. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. 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.
(vi) Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations (except for the payment of money) on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, earthquakes, acts of God, war, governmental action, or any other cause that is beyond the reasonable control of such party.
(vii) Entire Agreement. This Agreement, the Exhibits hereto, and the accompanying Registration Form constitute the entire agreement between the parties with respect to the subject matter hereof. This Agreement supersedes, and the terms of this Agreement govern, any other prior or collateral agreements with respect to the subject matter hereof.
(viii) Performance. 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.
(ix) Severability. If any provision of this Agreement shall be held or made invalid or unenforceable for any reason, such invalidity shall not affect the remainder of this Agreement, and the invalid or unenforceable provisions shall be replaced by a mutually acceptable provision, which being valid, legal and enforceable comes closest to the original intentions of the parties hereto and has like economic effect.
(x) Section Headings. The section headings contained herein are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement.
(xi) Territories. THE TERRITORIES FOR WHICH PROXIMIC OFFERS SERVICES ARE CURRENTLY THE UNITED STATES OF AMERICA, UNITED KINGDOM, P.R. OF CHINA AND GERMANY ("TERRITORIES"). IN ADDITION TO ALL OTHER CRITERIA CONSIDERED BY PROXIMIC WITH RESPECT TO THE APPLICATION OF A PROSPECTIVE SUBSCRIBER, NO SUBSCRIBER SHALL BE ADMITTED TO THE PARTNER PROGRAM UNLESS SUCH APPLICANT'S WEB SITE IS LOCATED WITHIN THE TERRITORIES AS DETERMINED BY PROXIMIC IN ITS SOLE DISCRETION. PROXIMIC MAY MODIFY ITS PARTNER PROGRAM AT ANY TIME TO ALLOW APPLICANTS AND PARTNERS FROM COUNTRIES OTHER THAN THE TERRITORIES ("FOREIGN WEB SITES"), BUT SHALL BE UNDER NO OBLIGATION TO DO SO. IN CERTAIN CASES PROXIMIC MAY ALLOW FOREIGN WEB SITES INTO THE SUBSCRIBER AGREEMENT, BUT WILL ONLY PRESENT ADS TO SITE USERS FROM THE TERRITORIES.
(xii) Electronic Communications Privacy Notice (18USC 2701-2711). Proximic makes no guarantee of confidentiality or privacy of any communications or information transmitted on or through Proximic's Site(s), Services or any Web site linked to the Site(s). 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.
Date of last revision: 2009-04-16