1. Introduction. These Terms of Service (this “Agreement”) govern Publisher’s relationship with ValidClick, Inc., a Missouri corporation, D/B/A SearchLinks (“SearchLinks”). Either party may cancel this Agreement without penalty twenty-four (24) hours after giving written notice of termination to the other party. Publisher shall not have any remedy against SearchLinks based on or arising out of SearchLinks’ termination of this Agreement, and termination of this Agreement by SearchLinks shall be without prejudice to the rights of SearchLinks accrued at the date of such termination.
2. Effective Date. Upon Publisher’s acceptance.
3. Publisher’s Offerings. This Agreement covers top level domains or web or mobile applications owned or operated by Publisher and specifically approved in writing by SearchLinks (“Publisher’s Offering(s) or Offering(s)”). SearchLinks may retract is approval of a Publisher’s Offering(s) at any time for any reason.
4. Supplied Content. SearchLinks shall provide Publisher access to the SearchLinks product, which consists of keyword based advertisements delivered either via a feed or rendered via client side code hosted on Publisher’s web pages or mobile applications (the “Supplied Content”).
a. Publisher shall implement the Supplied Content in accordance with SearchLinks' specifications for the format, presentation, display and placement as described in the implementation documentation provided in the online SearchLinks Publisher Dashboard or provided via email, and otherwise in accordance with this Agreement. Publisher’s use of the Supplied Content is subject to SearchLinks’ prior and continued approval, in its sole discretion, and Publisher’s continued compliance with this Agreement. In order to make use of Supplied Content on a given Publisher’s Offering, Publisher must first submit each new Publisher’s Offering in the manner required by SearchLinks and implement the services offered and provided hereunder on the Publisher’s Offerings according to any implementation instructions provided by SearchLinks (“Implementation Instructions”). Implementation Instructions may be changed by SearchLinks from time to time in its sole and absolute discretion. If Publisher makes material modifications to an approved Offering, it must re-submit the Offering for approval. Displaying Supplied Content on a modified Publisher Offering shall be treated the same as displaying said Supplied Content on an unapproved offering.
b. Publisher acknowledges and agrees:
1. Supplied Content shall only be placed on Offerings that have been approved in writing by SearchLinks.
2. It will not assign any right to or syndicate the Supplied Content provided by SearchLinks.
3. Supplied Content shall not be:
- Placed in inappropriate places such as pop-ups, pop-unders, emails or software
- Obscured by elements on a page.
- Cached, stored, copied, distributed, or redirected;
- Edited, resized, modified, filtered, obscured, hidden, made transparent, or reordered.
4. Any code provided by SearchLinks may not be altered or manipulated in any way that is not explicitly permitted by SearchLinks.
5. It will display the headings shown in the mockups (or any labels, headings or notices provided by ValidClick or required by law).
6. Publisher will implement any reasonable technical requirements requested by ValidClick.
7. Compensation. Subject to compliance with the terms and conditions of this Agreement, including, but not limited to Sections 5 and 6 hereof, SearchLinks shall pay Publisher a variable CPM based on SearchLinks proprietary algorithm for the value of impressions delivered to SearchLinks pursuant to this Agreement. SearchLinks payout rate depends on the Publisher, the quality and demand for the Publisher’s traffic and the volumes delivered by the Publisher. SearchLinks will track preliminary revenue earned by Publisher and report the same on a daily basis. Payments shall be made within 35 days after the end of the calendar month in which such amounts were incurred. Payments shall be in U.S. Dollars. SearchLinks reserves the right to change a Publisher’s CPM and payout rate, including, wihout limitation, changing the reported preliminary revenue earned, without notice to Publisher. CPMs are not guaranteed or fixed and access to the Supplied Content is on a variable pricing model.
SearchLinks has no obligation to make any payment in any period where the total due Publisher is less than $250; SearchLinks may hold such payments due Publisher until the amount due Publisher hereunder exceeds $250 and will remit such amount upon the next scheduled payment date. SearchLinks shall have no obligation for any payments earned through invalid activity, which shall include but not be limited to: (i) views and / or click throughs on Supplied Content which are deemed by SearchLinks to be invalid, including where such views and / or click throughs are deemed invalid by SearchLinks or its partners’ security and protection protocols; (ii) anything connected or relating to SearchLinks’ determination that a view and / or click through is in contravention of Section 6 of these Terms and Conditions; and/or (iii) views and / or click throughs executed through any device (including any program, software, system or method) whether electronic or otherwise that executes views, searches or click throughs that were not initiated by bona fide Internet Users, as determined by SearchLinks in its sole discretion, SearchLinks shall have no obligation to make any payment to the extent that any elements of any payment relates to: (i) payments in respect of which SearchLinks has not itself received payments from relevant third parties; or (ii) payments which represent net adjustments downwards for whatever reason to payments made by third parties to SearchLinks (or withheld from payments due to SearchLinks) including, but not limited to, for poor traffic quality and/or conversions, goodwill credits, and promotional credits.
In its sole and absolute discretion and without limiting any other legal remedies available to it, SearchLinks may withhold any and all payments to Publisher, in an amount determined by SearchLinks in its sole and absolute discretion, (i) while it investigates the validity of views and / or clicks delivered by Publisher under this Agreement, (ii) as a reserve against chargebacks for up to 120 days after termination of this Agreement for any reason, or (iii) to offset all or any portion of any payment previously received by Publisher while Publisher was in contravention of this Agreement.
SearchLinks and its partners monitor all activity closely and maintain a zero-tolerance policy for fraud. Any activity that is deemed suspicious will be fully investigated. Fraudulent activity may lead to the immediate suspension of the Publisher account, and without limiting any other potential legal action, forfeiture of all unpaid payments due hereunder. If Publisher utilizes fraudulent means of traffic generation or otherwise violates the terms of this Agreement, as determined solely by SearchLinks in its sole and absolute discretion, Publisher shall forfeit all of the amounts paid and yet to be paid hereunder and Publisher’s account will be terminated effective immediately. SearchLinks reserves sole judgment in determining fraud and compliance with the terms of this Agreement and Publisher agrees to be bound by any and all such determinations. It is Publisher’s sole obligation and responsibility to prove to SearchLinks that it has NOT engaged in fraud and that it has complied with the terms of this Agreement. If Publisher is unable to provide SearchLinks with satisfactory evidence that it has not engaged in fraud or complied with the terms of this Agreement within seven (7) days of a written request by SearchLinks, then SearchLinks reserves the right to terminate Publisher’s account and cancel any pending payments and seek a refund from Publisher of all amounts paid hereunder, at its sole discretion and without any further obligations to Publisher and without limiting any other remedies available to SearchLinks.
8. Source Provider as Third Party Beneficiary. Publisher acknowledges that third party advertisement suppliers (hereinafter “Source Providers”) are relying on this Agreement. Source Providers shall be entitled to enforce the provisions of this Agreement with Publisher as they pertain to such content provider, as a third party beneficiary of such agreement.
9. Governing Law. Any suit, action or proceeding with respect to this Agreement must be brought to the courts of the State of Arkansas, County of Faulkner, or in the United States District Court, Eastern District of Arkansas, Western Division (“Courts”). Inuvo, in its sole discretion may elect, and Publisher irrevocably submits to, the jurisdiction of the Courts for the purpose of any such suit, action or proceeding. Publisherirrevocably waives any objections which Publisher may now or hereafter have to venue of any suit, action or proceeding arising out of or relating to this Agreement brought in the Courts, and further irrevocably waives any claim that any such suit, action or proceeding brought in any such court has been brought in any inconvenient forum. Any action or proceeding by Publisher against Inuvo can only be initiated in one of the Courts.
10. Indemnification. Publisher shall defend and/or settle, and pay damages awarded pursuant to, any third party claim brought against SearchLinks, which alleges facts that would constitute a breach of any warranty, representation or covenant made by Publisher under this Agreement or are related to Publisher’s breach of a material obligation under this Agreement; provided that SearchLinks promptly notifies Publisher in writing of any such claim, promptly tenders the control of the defense and settlement of any such claim to Publisher (at Publisher’s expense and with Publisher’s choice of counsel), and cooperates fully with Publisher (at Publisher’s request and expense) in defending or settling such claim, including but not limited to providing any information or materials necessary for Publisher to perform the foregoing. Publisher will not enter into any settlement or compromise of any such claim without SearchLink’s prior consent, which shall not be unreasonably withheld.
11. Press Release. Publisher may not issue any press release or other public statements regarding this Agreement. Notwithstanding the prior sentence, SearchLinks may in its discretion permit such a press release or public statement, but such consent must be by an authorized person of SearchLinks and must be in writing. The failure to obtain the prior written approval of SearchLinks shall be deemed a material non-curable breach of this Agreement, whereby SearchLinks may terminate this Agreement immediately following written notice to Publisher.
12. Limitation of Liability. SEARCHLINKS WILL NOT BE LIABLE FOR ANY LOST PROFITS OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES FOR LOST DATA, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO CONTRACT, PRODUCTS LIABILITY, STRICT LIABILITY AND NEGLIGENCE, AND WHETHER OR NOT SUCH PARTY WAS OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN NO EVENT WILL VALIDCLICK’S LIABILITY ARISING OUT OF THIS AGREEMENT EXCEED THE NET AMOUNT PAID OR PAYABLE TO PUBLISHER UNDER THIS AGREEMENT DURING THE SIX MONTHS PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.
13. Disclaimer of Warranties. SEARCHLINKS IS NOT RESPONSIBLE FOR ANY CONTENT TO BE PROVIDED HEREUNDER OR FOR ANY SITES THAT CAN BE LINKED TO OR FROM THE CONTENT. SEARCHLINKS MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, AND NONINFRINGEMENT. Furthermore, SearchLinks makes no representation or warranty to Publisher that the performance of its obligations under this Agreement will produce any level of payment or profits.
14. Change in Control. SearchLinks may terminate this Agreement immediately without liability upon the existence of a Change of Control by Publisher. “Change of Control” means (a) a merger, consolidation or other reorganization to which Publisher is a party, if the individuals and entities who were stockholders (or partners or members or others that hold an ownership interest) of Publisher immediately prior to the effective date of the transaction have “beneficial ownership” (as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended) of less than eighty percent (80%) of the total combined voting power for election of directors (or their equivalent) of the surviving entity following the effective date of the transaction, (b) acquisition by any entity or group of direct or indirect beneficial ownership in the aggregate of then issued and outstanding securities (or other ownership interests) of Publisher in a single transaction or a series of transactions representing in the aggregate twenty percent (20%) or more of the total combined voting power of Publisher, or (c) a sale of all or substantially all of Publisher’s assets. Publisher will not assign or transfer any Publisher’s Offerings to any entity wholly or partially owned by, controlled by or under common ownership or control with Publisher without requiring that entity to enter into one of the following, at ValidClick’s request: (a) an amendment to this Agreement adding that entity as a party, or (b) a separate agreement containing terms substantially similar to this Agreement.
15. Force Majeure. Neither party shall be liable in damages or have the right to cancel or terminate this Agreement for any delay or default in performance if such delay or default is caused by unforeseen conditions beyond the reasonable control of the delaying or defaulting party, including acts of God, restrictions by a government authority, wars, revolutions, strikes (other than any strike by the delaying or defaulting party's employees), fires, floods, earthquakes, embargoes, or degradation of telephone or other communications services or servers, including but not limited to, degradation of all or part of an Internet backbone.
16. Confidential Information. The terms of this Agreement and information disclosed by SearchLinks to Publisher are deemed Confidential Information. Such information includes without limitation all know-how, business processes, source code, algorithms, object code, click and performance data, technology, and information related to this Agreement. Publisher agrees (a) not to disclose any Confidential Information to any third parties, (b) not to use any Confidential Information for any purpose except to exercise rights and carry out responsibilities under this Agreement, (c) keep Confidential Information confidential using reasonable care.
17. Miscellaneous Terms and Conditions. This Agreement and Addendum constitutes the entire agreement between the parties with respect to the subject matter hereof. This Agreement and Addendum supersedes, and the terms of this Agreement govern, any other prior or collateral agreements with respect to the subject matter hereof.
18. Changes to Agreement. SearchLinks may modify the terms of this Agreement at its sole discretion from time to time. SearchLinks shall post the amended terms in the ValidClick Publisher Center and they shall be binding immediately after they are posted and any use of the Supplied Content after such date shall be subject to the amended terms. This Agreement may not otherwise be amended, except in writing signed by both parties.