CPA Advertiser Terms and Conditions
Clickbooth.com Advertiser Terms & Conditions
The following Terms and Conditions are entered into as of the "Effective Date" set forth below by and between Clickbooth.com, LLC., owner and operator of Clickbooth network ("Clickbooth"), Guarantor, identified below, and you ("Advertiser," "you," "yours"), and shall govern the placement and delivery of advertising as set forth in the Insertion Order ("IO") to which these Terms and Conditions are attached (the IO, together with these Terms and Conditions, the "Agreement").
1. Introduction. Clickbooth provides you, as Advertiser, with the ability to post Ads (as defined below) for distribution through the Clickbooth Network, as defined herein, subject to your compliance with the terms and conditions of the Agreement. By enrolling as an advertiser, Advertiser, its agents, representatives, employees and any other person acting on its behalf with respect to the use of the Clickbooth Network, shall be bound by, and agrees to be bound by, the Agreement.
2. Clickbooth Network. The Clickbooth Network is defined as Clickbooth‘s branded websites, newsletters and various third party affiliates ("Affiliates") that may be authorized by Clickbooth to post Ads on or through websites, newsletters and/or applications that they control. Affiliates are paid a commission based on revenue generated from Advertiser‘s campaign(s). The Clickbooth Network can be accessed at www.Clickbooth.com .
3. Clickbooth Services/Ads. As of the Effective Date, Advertiser agrees to accept and pay for, and Clickbooth agrees to provide, the services identified and set forth in the Agreement ("Services"). Clickbooth‘s exclusive obligation is to distribute Ads provided by Advertiser within the Clickbooth Network, in accordance with the Agreement. Other than where the parties agree that Clickbooth shall contribute to the development of the Ads, Advertiser will, at its sole cost and expense, create and deliver all content required for any Ad to Clickbooth in the form requested by Clickbooth and in accordance with the specifications and policies set-forth by Clickbooth, prior to publication ("Advertiser Provided Ad" and/or "Ad(s)"). The parties understand and agree that Advertiser is the sole owner of any and all intellectual property rights associated with any Advertiser Provided Ads. Clickbooth will not be required to publish any Ad that is not in accordance with its policies or specifications. Notwithstanding the foregoing, Clickbooth‘s policies, specifications and/or recommendations with respect to Ads should not be construed as legal advice, or as sufficient guidelines to ensure that such Ads comply with applicable law. Clickbooth does not represent or warrant that the Ads, or such policies, specifications and/or recommendations associated with the Ads, are legally compliant or appropriate. Clickbooth assumes no obligation and hereby disclaims any liability for Advertiser‘s use of the Ads or Advertiser‘s reliance on any such policies, specifications and/or recommendations. Advertiser should consult with its legal counsel and/or other professional advisors before utilizing any Ads or acting on any policies, specifications and/or recommendations as provided by Clickbooth. Clickbooth reserves the right to demand verification for any claims made in any Ad and to terminate the Agreement in the event that such verification is not promptly provided or is unsatisfactory, in Clickbooth‘s sole discretion. Advertiser is solely responsible for the content of the Ads. Clickbooth shall not be responsible for Advertiser‘s website(s) including, but not limited to, content, maintenance of Advertiser‘s website(s), order entry, customer service, payment processing, shipping, cancellations or returns. Advertiser warrants and represents that: (a) it has all right, title and interest in and to the Ads; (b) the use of the Ads by Clickbooth and its Affiliates as contemplated and authorized hereunder will not infringe on any copyright, patent, trademark, trade secret or other proprietary rights or right of publicity or privacy; and (c) all Ads are in compliance with all laws, regulations and ordinances ("Laws") of the United States and any other jurisdiction in which Advertiser conducts business.
a. Distribution of Ads. Positioning of the Ads within the Clickbooth Network is at the sole discretion of Clickbooth and its Affiliates. Clickbooth does not guarantee that your Ads will be available through any specific part of the Clickbooth Network, when your Ads will run and/or the placement and positioning of your Ads. Clickbooth reserves the right to reject any Ad for any reason at any time. Clickbooth reserves the right, at any time to remove any of your Ads if we determine, in our sole discretion, that the Ad or any portion thereof, violates any of our policies or may result in liability to us. Clickbooth shall have the absolute right to reject any URL link embodied within any Ad. Clickbooth‘s failure to reject or cancel any Ad shall not be construed as an acceptance of the Ad, nor shall it negate other provisions of the Agreement, specifically with respect to liability.
b. Exclusivity. If the "Exclusive" option has been selected on an IO, then Clickbooth shall be the exclusive publisher for that offer, and Advertiser shall not duplicate the same or similar offer for any other affiliate, publisher, or network without Clickbooth‘s prior written consent. In the event of a breach of this provision by Advertiser, Clickbooth shall be entitled to, in addition to all other rights and remedies that Clickbooth may have at law or in equity, an injunction (without the requirement to post a bond) enjoining and restraining Advertiser and/or all other persons involved therewith from continuing such breach for each applicable "Exclusive" offer. Advertiser acknowledges that any breach by Advertiser of this provision will result in irreparable injury to Clickbooth for which money damages may not adequately compensate Clickbooth.
4. Terms of Payment. Clickbooth will submit an invoice to Advertiser for fees and charges associated with the Advertiser‘s applicable offers in accordance with the payment model outlined below, and the applicable compensable events (each, an "Action"). Invoicing and payments are governed by the credit decision issued to Advertiser by Clickbooth. Payments for invoices will be overdue if unpaid after the due date listed on the invoice. Overdue invoices will accrue interest at the statutory interest rates then in effect. Payments are subject to any and all applicable taxes and shall be paid in accordance with the payment method selected on the IO.
5. Payment Model and Reporting. Advertiser has selected to enroll in the Cost-Per-Action ("CPA") or Cost-Per-Lead (‘CPL") payment model defined as follows: Advertiser shall pay Clickbooth the designated CPA or CPL fee, as stated on the IO, for each lead or sale delivered by Clickbooth and its Affiliates. The total fees will be based on the number of leads or sales received from all of Advertiser‘s Ads, multiplied by the applicable CPA/CPL rate. Advertiser shall provide Clickbooth within five (5) days after the end of the previous traffic period, the total number of leads or sales generated by Clickbooth and its Affiliates in the previous traffic period. Notwithstanding the foregoing, upon Clickbooth‘s reasonable request Advertiser shall provide Clickbooth with the total number of leads or sales for the previous traffic period within forty-eight (48) hours of the request. Advertiser understands and agrees that Clickbooth shall invoice Advertiser using the higher of the numbers tracked by Clickbooth or tracked by Advertiser, and Advertiser agrees to pay for all amounts as invoiced. Leads or sales are defined as Internet users interested in your Ad or offer, who have clicked-thru to your landing page or website, and have signed up for, or purchased, as applicable, your service or product as determined by the firing of the pixel.
6. Traffic Level Adjustments. If, in Clickbooth‘s sole determination, the projected fees payable by Advertiser for any traffic period during the term of an IO are targeted to exceed the credit decision previously provided to Advertiser, then Clickbooth may, in its sole discretion, take any one or more of the following actions at any time (a) require a deposit or increase in deposit; (b) increase the frequency of invoices to daily, weekly or bi-weekly, as applicable: (c) require that Advertiser secure any current and/or future payment obligations through the issuance of promissory notes, establishment of joint accounts and/or collateralization of receivables, real property and/or other assets; (d) suspend the placement of Ads in the Network until the payment terms have been revised to Clickbooth‘s satisfaction; (e) cap the number of Actions generated by the Ad; .
7. Refund Policy. All refunds if any are at the sole and absolute discretion of Clickbooth and subject to a five (5%) percent administrative handling fee.
8. Claims or Disputes. Advertiser shall submit any and all claims and disputes in writing to Clickbooth within ten (10) days after month‘s end or seven (7) days after the invoice date, whichever is earlier, time being of the essence. Claims and disputes not timely submitted to Clickbooth, in accordance with this provision, are waived and all charges are final.
9. Failure to Make Payment. The failure by Advertiser to make timely payment shall constitute material breach. Advertiser is responsible for all reasonable expenses (including, but not limited to, attorneys‘ fees and costs) incurred by Clickbooth in collecting such amounts due plus interest.
10. Tracking System. You agree that you will not alter the pixel or remove or alter the location of the pixel or other tracking method deployed by Clickbooth ("Pixel") to track leads. If you disrupt, interfere, or disable the tracking system, you will be obligated to pay Clickbooth for all Actions, based upon the historical earnings per click ("EPC"), to have been generated during the period of disruption. The historical EPC is determined by dividing the total earnings by the number of clicks generated by a campaign during the most recent uninterrupted traffic period.
Advertiser shall place Clickbooth‘s Pixel on a unique confirmation page that does not contain the pixel or tracking method of any third party. If you place Clickbooth‘s Pixel on the same page as a third party‘s pixel or tracking method, you will be obligated to pay Clickbooth based upon each firing of the Clickbooth Pixel (based upon Clickbooth‘s tracking logs) regardless of any payment made to any third party for the subject action in reliance on any other pixel and/or tracking method appearing on the same page.
11. Fraud. Advertiser acknowledges and agrees that Clickbooth shall not be liable for any instances of fraud on the part of end-user consumers and Advertiser agrees to pay Clickbooth in full for all services performed under the Agreement regardless of consumer fraud. Advertiser shall not be liable for Actions that are the result of Affiliate fraud and are timely disputed in accordance with Section 8 of this Agreement; however without definitive proof of fraud as determined by Clickbooth, Advertiser agrees to pay Clickbooth in full for all services performed under the Agreement.
12. Non-Circumvent. Advertiser recognizes that Clickbooth has proprietary relationships with Clickbooth Network Affiliates. Advertiser agrees not to knowingly circumvent Clickbooth‘s relationship with such Affiliates, or otherwise obtain, directly or indirectly, services similar to those performed by Clickbooth or such Affiliates hereunder, from any Affiliate that is known, or should reasonably be known, by Advertiser to have such a relationship with Clickbooth. Advertiser shall not solicit the Affiliates of Clickbooth, nor shall Advertiser use or attempt to use reverse engineering or tracing of Affiliate traffic as a means to solicit and/or identify Clickbooth‘s Affiliates. Failure to comply with this Section may, at our discretion and without limiting or excluding other remedies that may be available to Clickbooth (all such other remedies being expressly reserved), result in immediate termination of the Agreement.
13. Confidentiality. Any confidential information and/or proprietary data provided by one party ("Discloser") to the other party ("Recipient"), including the Ad descriptions and the pricing of the Ad, shall be deemed "Confidential Information" of the Discloser. Confidential Information shall not be released by the Recipient to anyone except an employee or agent that has a need to know same and that is bound by confidentiality obligations at least as strict as those contained herein, but in no event less than a reasonable confidentiality standard. Recipient shall not use any portion of Confidential Information provided by the Discloser for any purpose other than those provided for under the Agreement. Notwithstanding anything contained herein to the contrary, the term "Confidential Information" shall not include information that: (a) was previously known to the Recipient; (b) was or becomes generally available to the public through no fault of the Recipient; (c) was rightfully in Recipient‘s possession free of any obligation of confidence at, or subsequent to, the time it was communicated to Recipient by Discloser; or (d) was developed by employees or agents of Recipient independently of and without reference to any information communicated to Recipient by Discloser. Notwithstanding the foregoing, either party may disclose, upon written notice to the other party, Confidential Information in response to a valid order by a court or other governmental body, as otherwise required by law or the rules of any applicable securities exchange or as necessary to establish the rights of either party under the Agreement; provided, however, that both parties will stipulate to any orders necessary to protect said information from public disclosure.
14. License. For the term of the Agreement, Advertiser hereby grants to Clickbooth and Clickbooth‘s Affiliates and partners a non-exclusive, royalty-free, worldwide license to: (a) use, perform and display all Ads delivered hereunder in accordance with the terms of the Agreement; and (b) use all associated Advertiser intellectual property in connection therewith. Title to and ownership of all intellectual property rights of all Ads and associated Advertiser intellectual property shall remain with Advertiser or its third party licensors.
15. Acknowledgement of FTC and Florida Orders. You acknowledge that you have received, read, and agree to comply with the "Stipulated Final Judgement and Order for Permanent Injunction" entered on November 29, 2012 (the "FTC Order") and the "Assurance of Voluntary Compliance" entered on November 16, 2012 (the "Florida Order"), warrant that there are no misrepresentations or material omissions in the advertisements, as more specifically set out in the Assurance of Voluntary Compliance, and understand and agree that engaging in acts or practices prohibited by the FTC Order and the Florida Order will result in the immediate termination of this Agreement and a forfeiture of all monies received or owed.
16. Representations and Warranties. EACH PARTY REPRESENTS AND WARRANTS TO THE OTHER PARTY THAT: (A) IT HAS THE FULL CORPORATE RIGHT, POWER AND AUTHORITY TO ENTER INTO THE AGREEMENT, TO GRANT THE LICENSES GRANTED HEREUNDER AND TO PERFORM THE ACTS REQUIRED OF IT HEREUNDER; (B) THE EXECUTION OF THE AGREEMENT BY IT AND THE PERFORMANCE OF ITS OBLIGATIONS AND DUTIES HEREUNDER, DO NOT AND WILL NOT VIOLATE ANY AGREEMENT TO WHICH IT IS A PARTY OR BY WHICH IT IS OTHERWISE BOUND; AND (C) WHEN EXECUTED AND DELIVERED, THE AGREEMENT WILL CONSTITUTE THE LEGAL, VALID AND BINDING OBLIGATION OF EACH PARTY, ENFORCEABLE AGAINST EACH PARTY IN ACCORDANCE WITH ITS TERMS.
17. Disclaimer of Warranties. THE CLICKBOOTH NETWORK, CLICKBOOTH ASSISTED ADS, SERVICES AND THE RESULTS GENERATED THERE FROM ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTY OF ANY KIND AND WITHOUT ANY GUARANTEE OF CONTINUOUS OR UNINTERRUPTED DISPLAY OR DISTRIBUTION OF ANY AD OR CLICKBOOTH ASSISTED AD. IN THE EVENT OF INTERRUPTION OF DISPLAY OR DISTRIBUTION OF ANY AD OR CLICKBOOTH ASSISTED AD, CLICKBOOTH‘S SOLE OBLIGATION WILL BE TO RESTORE SERVICE AS SOON AS PRACTICABLE. EXCEPT AS STATED HEREIN, CLICKBOOTH DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
18. Limitation of Liability. Other than for gross negligence and willful misconduct, in no event will either party be liable for any consequential, indirect, incidental, punitive, special or exemplary damages whatsoever including, without limitation, damages for loss of profits, business interruption, loss of information and the like, incurred by the other party arising out of the Agreement, even if such party has been advised of the possibility of such damages.
19. Indemnification. Advertiser agrees to defend, indemnify and hold harmless Clickbooth and its Affiliates and their respective directors, officers, employees and agents from and against any and all damages, liabilities, costs and expenses (including reasonable attorneys‘ fees) (collectively "Losses") incurred as a result of any claim, judgment or proceeding relating to or arising out of: (a) Advertiser‘s breach of the Agreement; (b) the content of the Ads and any and all claims made therein; or (c) the products, services or content linked to from the Ads. Clickbooth agrees to defend, indemnify and hold harmless Advertiser from and against any and all Losses incurred as a result of a claim, judgment or proceeding relating to or arising out of Clickbooth‘s breach of the Agreement.
If any action is brought against either party (the "Indemnified Party") in respect to any allegation for which indemnity may be sought from the other party ("Indemnifying Party"), the Indemnified Party will promptly notify the Indemnifying Party of any such claim of which it becomes aware and will: (i) provide reasonable cooperation to the Indemnifying Party at the Indemnifying Party‘s expense in connection with the defense or settlement of any such claim; and (ii) be entitled to participate at its own expense in the defense of any such claim. The Indemnified Party agrees that the Indemnifying Party will have sole and exclusive control over the defense and settlement of any such third party claim. However, the Indemnifying Party will not acquiesce to any judgment or enter into any settlement that adversely affects the Indemnified Party‘s rights or interests without the prior written consent of the Indemnified Party.
20. Termination. In addition to any other remedies that may be available to it, Clickbooth may immediately terminate this Agreement or any applicable IO in the event of any breach by Advertiser of the Agreement. Either party may cancel this Agreement or an IO, by giving five (5) business days prior written notice to the other party. Sections 1, 3-24, and any accrued but unpaid payment obligations, shall survive termination of the Agreement. In the event of termination, Advertiser shall allow five (5) business days for the campaigns to become inactive across the Clickbooth Network, and Advertiser will be responsible for the Actions that result from Ads published during those five (5) days.
21. Scope of Relationship. Each party is an independent contractor and not a partner, joint venturer or employee of the other. Neither party shall have the right to bind the other or to incur any obligation on the other‘s behalf.
22. Miscellaneous. The Agreement will be governed and construed in accordance with the laws of the State of Florida without giving effect to conflict of laws principles. Advertiser and Clickbooth each: (a) hereby irrevocably submits to the exclusive jurisdiction in the Twelfth Judicial Circuit in and for Sarasota County, Florida, or in the United States District Court for the Middle District of Florida for the purposes of any suit, action or proceeding arising out of or relating to the Agreement; and (b) hereby waives, and agrees not to assert in any such suit, action or proceeding, any claim that it is not personally subject to the jurisdiction or that such proceeding is brought in an inconvenient forum or that the venue of the suit, action or proceeding is improper. If any provision of the Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. Any controversy or claim arising out of or relating to this Agreement shall be settled through binding arbitration in accordance with the Expedited Commercial Arbitration Rules of The American Arbitration Association. Any award rendered by the arbitrator(s) shall be entered as a judgment or order and may be confirmed or enforced by either party in any state or federal court having competent jurisdiction thereof. If Advertiser brings or appeals any judicial action to vacate or modify any award rendered pursuant to arbitration or opposes the confirmation of such award and does not prevail, Advertiser will pay all of the costs and expenses (including without limitation, court costs, arbitrators‘ fees and expenses and reasonable attorneys‘ fees) incurred by Clickbooth in defending such action. The failure of Clickbooth to exercise any rights granted hereunder will not operate as a waiver of those rights. The arbitrators will not be empowered to award punitive damages. The consent of the parties to arbitrate their disputes shall survive termination of this Agreement. If this Agreement is found to not be subject to arbitration, each party herein consents, agrees, and affirmatively waives any right to a jury trial in any proceeding. Advertiser may not assign the Agreement without the prior written consent of Clickbooth. The parties‘ rights and obligations will bind and inure to the benefit of their respective successors, heirs, executors, joint administrators and permitted assigns. The Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which taken together shall constitute but one and the same instrument. The Agreement may be executed and delivered by electronic signature and/or facsimile and the parties agree that such execution and delivery shall have the same force and effect as delivery of an original document with original signatures.
23. Other Agreements. The Agreement sets forth the entire agreement of the parties and supersedes any and all prior oral or written agreements or understandings between the parties as to the subject matter hereof. Only a writing signed by both parties may change, modify or amend the terms of the Agreement.
CPC Advertiser Terms and Conditions
CB|CPC STANDARD ADVERTISER TERMS AND CONDITIONS
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS IN FULL AND VERY CAREFULLY PRIOR TO REGISTERING AS A PUBLISHER, ADVERTISER, OR USER OF CB|CPC. YOUR AGREEMENT TO THESE TERMS CREATES A LEGAL BINDING AND ENFORCEABLE CONTRACT BETWEEN YOU AND CLICKBOOTH.COM, LLC A.KA. CB|CPC. IF YOU REGISTER FOR THE CB|CPC PROGRAM OR PARTICIPATE IN THE CB|CPC PROGRAM YOU ARE AFFIRMATIVELY STATING AND AGREEING THAT YOU ARE IN AGREEMENT WITH THESE TERMS AND CONDITIONS AND FULLY ACCEPT THE COVENANTS, REPRESENTATIONS, WARRANTIES, AND TERMS CONTAINED HEREIN.
This Agreement (the "Agreement") is entered into by and between You and Clickbooth.com, LLC ("CB|CPC"). This Agreement shall govern the CB|CPC Network, the CB|CPC Advertising Program (the "Program") and Your use, agreement, and relationship with CB|CPC, and the Program. The Agreement consists of the CB|CPC Standard Terms and Conditions (the "Terms"), as applicable any insertion orders or service agreements ("IO") executed by and between the parties and/or Customer‘s online management of any advertising campaign, and the CB|CPC Compliance Policies and Guidelines that can be located athttp://www.clickbooth.com/compliance.html. "Customer", "You", "Your", and/or "Advertiser" shall be defined as any person or entity identified in the registration and application process (or listed at the time of enrollment), as submitted by the same person, entity, affiliated persons, and/or any agency, representative, or network acting on behalf of such person or entity, such being bound by this Agreement.
Subject to this Agreement, the Terms, and any and all rules, regulations, policies, or procedures that are developed, modified, or enacted by CB|CPC from time to time, CB|CPC hereby grants you the limited and revocable right of use, access, and participation in the Program. The Program gives users the ability to participate as an Advertiser and distribute campaigns, advertisements, offers, and/or promotional materials across the Internet on various websites for a fee. The Program also gives certain users the ability to participate as a Publisher (website owner), Publishers distribute and/or list advertisements, campaigns, offers, and/or promotional materials on their site for a fee. Participation in the Program as an Advertiser or Publisher is at your own risk.
Upon accessing the CB|CPC Network or participating, registering, and/or enrolling in the Program, You affirmatively represent and warrant that You are at least 18 years of age and hereby agree to be bound by this Agreement and the policies and procedures of CB|CPC. Advertiser is solely responsible for all: (a) ad targeting options and keywords (collectively "Targets") and all ad content, ad information, ad images, and ad URLs ("Creative"), whether generated by or for Advertiser; and (b) web sites, services and landing pages which Creative links or directs viewers to, and advertised services and products (collectively "Services"). Advertiser shall protect any password(s) and take full responsibility for Advertiser‘s own, and third party, use of any Advertiser accounts. You understand and agrees that ads may be placed on (y) any content or property provided by CB|CPC ("CB|CPC Property"), and, unless You opt out of such placement in the manner specified by CB|CPC, (z) any other content or property provided by a third party ("Partner") upon which CB|CPC places ads ("Partner Property"). You authorize and consent to all such placements. With respect to CB|CPC online auction-based advertising, CB|CPC may send Advertiser an email notifying Advertiser that it has 72 hours ("Modification Period") to modify keywords and settings as posted. The account (as modified by Advertiser, or if not modified, as initially posted) is deemed approved by Advertiser in all respects after the Modification Period. Advertiser agrees that all placements of Advertiser‘s ads shall conclusively be deemed to have been approved by Advertiser unless Advertiser produces contemporaneous documentary evidence showing that Advertiser disapproved such placements in the manner specified by CB|CPC. With respect to all other advertising, Advertiser must provide CB|CPC with all relevant Creative by the due date set forth on the CB|CPC Network or as otherwise communicated by CB|CPC. Advertiser grants CB|CPC permission to utilize an automated software program to retrieve and analyze websites associated with the Services for ad quality and serving purposes, unless Advertiser specifically opts out of the evaluation in a manner specified by CB|CPC. CB|CPC may modify any of its Programs at any time without liability. CB|CPC also may modify this Agreement at any time without liability, and Advertiser‘s use of the Program after notice that these Terms or the Agreement has changed constitutes Advertiser‘s acceptance of the new Terms. CB|CPC or its Partners may reject or remove any ad or Target for any or no reason.
CB|CPC will provide You with certain specifications, rules, and regulations to be followed and adhered to at all times. CB|CPC may in its sole and absolute discretion amend, modify, or change the specifications, rules, and regulations. Specifications may change to allow for network enhancements, including, but not limited to, code changes, delivery improvements, and optimization of displays, tracking, and reporting of Ads. You shall not alter the code, link, script, programming, pixel, content, and/or data provided to You by CB|CPC without the prior express written consent of CB|CPC.
4. ADVERTISER DUTIES.
You are solely responsible for Your Ad(s), Creative, including all content and materials, maintenance and operation thereof, the proper implementation of CB|CPC specifications, and adherence to the terms of this Agreement, all applicable laws, rules, regulations, statutes, and ordinances, and any CB|CPC rule, policy, or procedure. You hereby grant CB|CPC the sole and exclusive right to investigate, at its own discretion, any violation, activity, or alleged breach of this Agreement, or any engagement in any activity prohibited by this Agreement. CB|CPC shall not be liable or responsible for anything related to You, Your Ad(s), and/or Creative, including, but not limited to, the receipt and/or collection of data, information, or queries from end users of Your website, service, or product, or the transmission of any information or data between You, Your website, third party landing pages, publisher pages, and CB|CPC. In addition, the Program and all CB|CPC services are provided on an "AS IS" or "AS AVAILABLE" basis and CB|CPC makes no warranty or representation that such Program or service will be available, delivered, or work properly. CB|CPC is not required to notify You of any problems or issues relating to the CB|CPC Network, the Program, or the delivery of Your Ads.
Advertiser represents and warrants that (a) it is authorized to act on behalf of and has bound to this Agreement any third party for which Advertiser advertises (a "Principal"), (b) as between Principal and Advertiser, the Principal owns any rights to Program information in connection with those ads, and (c) Advertiser shall not disclose Principal‘s Program information to any other party without Principal‘s consent.
6. TERMS OF PAYMENT.
Payment. Advertiser shall be responsible for all charges up to the amount of each IO, or as set in an online account, and shall pay all charges in U.S. Dollars or in such other currency as agreed to in writing by the parties. Unless agreed to by the parties in writing, Advertiser shall pay all charges in accordance with the payment terms in the applicable IO or as listed on the CB|CPC Network. Late payments bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less). Charges are exclusive of taxes. Advertiser is responsible for paying (y) all taxes, government charges, and (z) reasonable expenses and attorneys fees CB|CPC incurs collecting late amounts. To the fullest extent permitted by law, Advertiser waives all claims relating to charges (including without limitation any claims for charges based on suspected invalid clicks) unless claimed within 7 days after the charge. Charges are solely based on CB|CPC‘s measurements for the applicable Program, unless otherwise agreed to in writing. To the fullest extent permitted by law, refunds (if any) are at the sole and absolute discretion of CB|CPC and only in the form of advertising credit for use on the CB|CPC Network. Nothing in these Terms, this Agreement, or an IO may obligate CB|CPC to extend credit to any party. Advertiser acknowledges and agrees that any credit card and related billing and payment information that Advertiser provides to CB|CPC may be shared by CB|CPC with companies who work on CB|CPC‘s behalf, such as payment processors and/or credit agencies, solely for the purposes of checking credit, effecting payment to CB|CPC and servicing Advertiser‘s account. CB|CPC 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. CB|CPC shall not be liable for any use or disclosure of such information by such third parties.
CB|CPC actively monitors traffic, Actions, Bounties and other Program-related activities for potential fraud. If CB|CPC suspects that Your account has been used in a fraudulent manner, Your account may be deactivated at CB|CPC‘s discretion and without notice to You. CB|CPC reserves sole judgment in determining fraud and You agree to be bound by any and all such determinations. It is the OBLIGATION of Advertiser to prove, to the satisfaction of CB|CPC, that Advertiser has NOT engaged in fraud when suspected by CB|CPC, and that Advertiser‘s account has been subject to fraudulent actions, clicks, and/or traffic, when so alleged by Advertiser. If You are unable to provide CB|CPC with satisfactory evidence of any alleged fraud and/or dispute within seven (7) days of such being requested by CB|CPC, or within seven (7) days that such action, charge, click, or traffic giving rise to the allegation of fraud, then all such charges shall be accepted by you without further right to dispute, all charges shall be final, and CB|CPC reserves the right to terminate Your account, at its sole discretion and without any further obligations to You.
This Agreement may be terminated by either Party upon five (5) days‘ prior written notice. In addition, CB|CPC reserves the right, in its sole and absolute discretion, to terminate You from the Program at any time for any reason, without notice to You. CB|CPC also reserves the right to terminate Your access to the CB|CPC Network at any time with or without notice to You. Termination notice may be provided via e-mail and will be effective immediately. Upon termination, The representations, warranties and obligations of Advertiser contained within the Agreement shall survive and remain in full force and effect after termination of the Agreement. All payment obligations accruing prior to the date of termination shall survive until fully fulfilled. After receipt of Your written notice of cancellation, CB|CPC will cease serving your Ads within a reasonable time period thereafter, not to exceed six (6) business days. The cancellation of advertising may be subject to Program policies or the ability of CB|CPC to re-schedule reserved inventory or cancel ads already in production. Cancelled ads may be published despite cancellation if cancellation of those ads occurs after any applicable commitment date as set forth in advance by CB|CPC, its affiliates, Partners, and/or Publishers, in which case Customer must pay for those ads.
Advertiser hereby represents and warrants that it: (a) has read CB|CPC‘s policies and guidelines, as same are made available at Advertiser shall not, and shall not authorize any party to: (a) generate automated, fraudulent or otherwise invalid impressions, inquiries, conversions, clicks or other actions; (b) use any automated means or form of scraping or data extraction to access, query or otherwise collect CB|CPC advertising related information from any Program website or property except as expressly permitted by CB|CPC; or (c) advertise anything illegal or engage in any illegal or fraudulent business practice.
10. Acknowledgement of FTC and Florida Orders.
You acknowledge that you have received, read, and agree to comply with the "Stipulated Final Judgement and Order for Permanent Injunction" entered on November 29, 2012 (the "FTC Order") and the "Assurance of Voluntary Compliance" entered on November 16, 2012 (the "Florida Order"), warrant that there are no misrepresentations or material omissions in the advertisements, as more specifically set out in the Assurance of Voluntary Compliance, and understand and agree that engaging in acts or practices prohibited by the FTC Order and the Florida Order will result in the immediate termination of this Agreement and a forfeiture of all monies received or owed.
11. PROMOTIONAL USE.
CB|CPC may, from time to time, use Your name and logo in presentations, marketing materials, Advertiser lists, financial reports, Web site listings of Advertisers, and search results. You may request in writing to use CB|CPC‘s trade names, trademarks, service marks, logos, domain names, and other distinctive brand features, but at no time shall You use such trade names, marks, and/or identifying information without the prior express written consent of CB|CPC.
12. REPRESENTATIONS AND WARRANTIES.
You represent and warrant that (a) all of the information provided by You to CB|CPC to enroll in the Program is true, accurate, correct, and current; (b) You hereby certify under oath that you are the owner of each advertisement, Creative, and/or content or that You are legally authorized to act on behalf of the owner of such 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. You further represent and warrant that each Ad, advertisement, Creative, content, and any material displayed therein: (i) complies 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. Advertiser represents and warrants that it holds and hereby grants CB|CPC and its affiliates, Partners, and Publishers all rights (including without limitation any copyright, trademark, patent, publicity or other rights) in the Ads, advertisements, Creative, Content, Services and Targets needed for CB|CPC and its affiliates, Partners, and Publishers to operate Programs (including without limitation any rights needed to host, cache, route, transmit, store, copy, modify, distribute, perform, display, reformat, excerpt, analyze, and create algorithms from and derivative works of Ads, Creative, Content, or Targets) in connection with this Agreement ("Use"). Advertiser represents and warrants that (z) any Use hereunder and Advertiser‘s Ad, Advertisement, Content, Creative, Targets, and Advertiser‘s Services will not violate or encourage violation of any applicable laws, regulations, code of conduct, or third party rights (including without limitation intellectual property rights). Violation of the foregoing may result in immediate termination of this Agreement or Advertiser‘s account without notice and may subject Advertiser to legal penalties and consequences.
You shall indemnify, defend and hold CB|CPC, its agents, advertisers, 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, demand for payment, 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 Ads, Content, Creative, Targets, and/or Services, Your breach of any term of this Agreement, and/or Your products and services being advertised, promoted, published, or served.
14. CB|CPC RIGHTS.
CB|CPC owns all right, title and interest, including without limitation all Intellectual Property Rights (as defined below), in and to the Program (including CB|CPC‘s ad serving technology, search technology, referral technology, marketing technology, marketing strategies, code, programming, strategies, and features, including implied licenses, and excluding items licensed by CB|CPC from third parties and excluding any third party media player that may comprise the Program or its Services), 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 CB|CPC 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 CB|CPC‘s copyright notice, features, trademarks, symbols, or other proprietary rights notices affixed to or contained within any CB|CPC services, software, or documentation (including without limitation the display of any CB|CPC or third party Ads). "Intellectual Property Rights" means any and all rights existing from time to time under patent law, copyright law, trademark law, international treaty, 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.
15. INFORMATION AND DATA COLLECTION.
16. DISCLAIMER AND LIMITATION OF LIABILITY.
IN NO EVENT SHALL CB|CPC BE LIABLE TO YOU OR ANY THIRD PARTY (INCLUDING, WITHOUT LIMITATION, ANY PERSONS OBTAINED THROUGH YOUR MARKETING EFFORTS) FOR ANY DAMAGES OF ANY KIND ARISING FROM YOUR USE OF THE CB|CPC NETWORK, THE PROGRAM, THE ADS, ADVERTISERS‘ UNDERLYING PRODUCTS AND/OR SERVICES OR YOUR DISPLAY OF ANY AD, CONTENT, OR CREATIVE ON OR THROUGH A PUBLISHER, PARTNERS, OR AFFILIATE WEBSITE(S) AND/OR PROPERTY(IES) INCLUDING, BUT NOT LIMITED TO, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE AND/OR CONSEQUENTIAL DAMAGES, EVEN IF CB|CPC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CB|CPC‘S MAXIMUM AGGREGATE LIABILITY TO ADVERTISER AND ANY THIRD PARTY UNDER ANY AND ALL CIRCUMSTANCES SHALL BE THREE HUNDRED DOLLARS ($300). ADVERTISER AND CB|CPC SPECIFICALLY STATE AND AGREE THAT THE FOREGOING DAMAGES LIMITATION IS REASONABLE AND ENFORCEABLE. REGARDLESS OF ANY LAW TO THE CONTRARY, ADVERTISER SHALL HAVE NO RIGHT OF ACTION, AND WAIVES ITS RIGHT TO BRING A SUIT, CLAIM, OR PROCEEDING AGAINST CB|CPC MORE THAN ONE (1) YEAR AFTER THE DATE UPON WHICH THE CLAIM AROSE. ADVERTISER RECOGNIZES AND ACKNOWLEDGES THAT THIS LIMITATION OF DAMAGES IS FAIR AND REASONABLE. THE CB|CPC NETWORK, CODE, SCRIPT, PROGRAM, AFFILIATE PARTNER AND PUBLISHER SITES, AD SERVING, AND THE SERVICES OF THE PROGRAM ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND ALL WARRANTIES, EXPRESS AND IMPLIED, ARE DISCLAIMED (INCLUDING, WITHOUT LIMITATION, THE DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE). THE CB|CPC NETWORK, THE PROGRAM, CODE, SCRIPT, AND/OR PUBLISHER‘S PARTNER‘S AND AFFILIATES UNDERLYING SITES AND SERVICES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. CB|CPC HAS NO LIABILITY, WHATSOEVER, TO ADVERTISER, PRINCIPAL, OR ANY THIRD PARTY, FOR ADVERTISER‘S USE OF, OR INABILITY TO USE, THE CB|CPC NETWORK, THE PROGRAM, AND/OR THE SERVICE AND DELIVERY OF THE ADS, AND/OR PUBLISHER‘S PARTNER‘S AND AFFILIATES UNDERLYING SITES OR SERVICES AND CB|CPC DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, THAT ADVERTISER‘S USE OF SAME WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT THE PROGRAM OR ANY OF THE SERVICES WILL BE AVAILABLE TO ADVERTISER. THE NEGATION OF DAMAGES SET FORTH HEREINABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN CB|CPC AND ADVERTISER. THE CB|CPC NETWORK, THE PROGRAM, THE SERVICE AND DELIVERY OF ADS, AND/OR PUBLISHER‘S PARTNER‘S AND/OR AFFILIATES UNDERLYING SITES AND SERVICES WOULD NOT BE PROVIDED TO ADVERTISER WITHOUT SUCH LIMITATIONS. CB|CPC MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY RESULTS OBTAINABLE THROUGH THE CB|CPC NETWORK, THE PROGRAM, AND/OR THE SERVICE AND DELIVERY OF THE ADS, AND/OR PUBLISHER‘S PARTNER‘S AND AFFILIATES UNDERLYING SITES OR SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY ADVERTISER FROM CB|CPC AND/OR ANY PUBLISHER, PARTNER, AND/OR AFFILIATE BY AND THROUGH THE CB|CPC NETWORK, THE CLICKBOOTH NETWORK, CLICKBOOTH.COM, AND/OR THE PROGRAM SHALL CREATE ANY WARRANTY, REPRESENTATION AND/OR GUARANTEE NOT EXPRESSLY STATED IN THE AGREEMENT.
CB|CPC may assign the Agreement, or any portion thereof, at its sole discretion. You may not assign, transfer or delegate any of Your rights under the Agreement without the prior written consent of CB|CPC, which may be withheld for any reason, and any attempts to do so shall be null and void. Further, any such attempts may result in CB|CPC, at its sole discretion, immediately terminating the Agreement and/or Your participation in any Program, without any liability to CB|CPC. The Agreement will be binding on, inure to the benefit of and be enforceable against, the Parties‘ successors and assigns.
18. SEVERABILITY WAIVER.
If any provision of the Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability shall not effect any other provisions of the Agreement, and the Agreement shall be construed as if such invalid, illegal or unenforceable provision had not been contained herein. No waiver of any breach of any provision of the Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving Party.
The Agreement represents the complete and entire expression of the agreement between the Parties, and shall supersede any and all other agreements, whether written or oral, between the Parties. Other than as set forth herein, the Agreement may be amended only by a written agreement executed by an authorized representative of each Party. To the extent that anything in or associated with the CB|CPC Network, the Program, or the terms are in conflict or inconsistent with the Agreement, the Agreement shall take precedence.
"Confidential Information" means any information disclosed to You by CB|CPC, either directly or indirectly, in writing, orally or by inspection of tangible objects, other than information that You can establish: (a) was publicly known and made generally available in the public domain prior to the time of disclosure to You by CB|CPC; (b) becomes publicly known and made generally available after disclosure to You by CB|CPC other than through Your action or inaction; and/or (c) is in Your possession, without confidentiality restrictions, at the time of disclosure by CB|CPC as shown by Your files and records prior to the time of disclosure. CB|CPC‘s Program rates are considered "Confidential Information." You shall not at any time: (i) disclose, sell, license, transfer or otherwise make available to any person or entity any Confidential Information; (ii) use any Confidential information; and/or (iii) reproduce or otherwise copy any Confidential Information, except as necessary in connection with the purpose for which such Confidential Information is disclosed to You or as required by applicable law. You agree to take all reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information. All Confidential Information shall at all times remain CB|CPC‘s personal property and all documents, electronic media and other tangible items containing or relating to any Confidential Information shall be delivered to CB|CPC immediately upon CB|CPC‘s request.
21. FORCE MAJEURE.
CB|CPC shall not be liable to Advertiser by reason of failure or delay in the performance of its obligations hereunder on account of telecommunications, Internet or network failure or interruption, results of computer hacking, Acts of God, fires, storms, war, governmental action, labor conditions, earthquakes, natural disasters or any other cause which is beyond the reasonable control of such CB|CPC.
You may not use any device, software or routine to interfere or attempt to interfere with the proper working of the delivery system, CB|CPC Network, and/or the Program. You may not take any action that imposes an unreasonable or disproportionately large load on the CB|CPC infrastructure. You agree that any unauthorized and/or unlawful use of the CB|CPC Network, the Program, Service, and/or Code will result in irreparable injury to CB|CPC for which monetary damages would be inadequate. In such event, CB|CPC shall have the right, in addition to any and all other remedies granted or available to it under this Agreement and/or by operation of law, to immediate injunctive relief against You without the requirement to post a bond. THE AGREEMENT MUST BE CONSTRUED AS IF BOTH PARTIES JOINTLY WROTE IT.
You agree that CB|CPC may require a financial accounting and inspection of Your books and records including, but not limited to, access to Your computer databases, in order to verify and corroborate financial information regarding the relationship established hereunder. You hereby authorize CB|CPC to obtain credit reports regarding Your business and to require You to provide it with reasonable information regarding Your financial position.
Each Party is an independent contractor and not a partner, joint venturer or employee of the other. Neither Party shall have the right to bind the other or to incur any obligation on the other‘s behalf.
All notices shall be sent to the address submitted by You when You sign up for the Service and, if to CB|CPC, to the address listed in the Contact section of the CB|CPC Network.
26. BINDING ARBITRATION.
Any controversy or claim arising out of or relating to this Agreement or the relationship resulting in or from this Agreement shall be settled through binding arbitration in accordance with the Expedited Commercial Arbitration Rules of The American Arbitration Association, 140 West 51st Street, New York, New York 10020-1203. Any award rendered by the arbitrator(s) shall be entered as a judgment or order and may be confirmed or enforced by either party in any state or federal court having competent jurisdiction thereof. If either party brings or appeals any judicial action to vacate or modify any award rendered pursuant to arbitration or opposes the confirmation of such award and the party bringing or appealing such action or opposing confirmation of such award does not prevail, such party will pay all of the costs and expenses (including without limitation, court costs, arbitrators‘ fees and expenses and reasonable attorneys‘ fees) incurred by the other party in defending such action. Additionally, if either party brings any action for judicial relief in the first instance without first pursuing arbitration prior thereto, the party bringing such action for judicial relief will be liable for and will immediately pay to the other party all of the others party‘s costs and expenses (including without limitation, court costs and attorneys‘ fees) to stay or dismiss such judicial action and//or remove it to arbitration. The failure of either party to exercise any rights granted hereunder will not operate as a waiver of those rights. The arbitrators will not be empowered to award punitive damages. The consent of the parties to arbitrate their disputes shall survive termination of this Agreement. If this Agreement is found to not be subject to arbitration, each party herein consents, agrees, and affirmatively waives any right to a jury trial in any proceeding. The parties consent and agree that jurisdiction and venue shall be in within the Middle District of Florida, Sarasota County Florida.
Adware / Software Addons
- Downloadable Software must not be installed on a user's computer without first obtaining the user's informed consent. Obtaining informed consent requires first giving users clear, concise, accurate information and notice about the material consequences of the programs that they are about to install in plain language including, without limitation: (i) a comprehensive license presented in full; (ii) the Downloadable Software vendor's legal name, mailing address, phone number and place of incorporation (if any); (iii) a statement of effect of installation including, without limitation, any changes made to computer settings such as home page, connection provider, proxy, bookmarks, etc.; (iv) a statement of the information tracked, transmitted and/or collected, if any; (v) full-size examples of advertisements that they may receive as a result of downloading the Downloadable Software, if any; and (vi) disclosures of the frequency of advertisement display, as applicable. Such information and notice provided to the user must: (i) appear in a conspicuous manner, clearly distinguished from other on-screen text; (ii) remain on screen until the user grants or denies consent; and (iii) provide an option for providing additional explanation about the type of information to be collected, if any, and the purpose of such collection. The plain language used in the notice shall not be indirect or euphemistic. For example, without limitation: (i) if a program will show pop-up advertisements, proper notice and informed consent generally require use of the phrase "This program will show pop-up advertisements"; (ii) if a program will gather and transmit information about the user, the notice should read "This program will collect and transmit information about you"; or (iii) if the program uses information collected to target advertising to the user, the notice should read, "This program will collect information about Web pages that you access and will use that information to display advertising on your computer." Obtaining informed consent also requires a clear, unambiguous and affirmative manifestation of consent (for example: requiring a user to press an appropriate affirmative button such as "I agree" and not merely pressing "Next" or accepting a pre-checked box). There must be a separate manifestation of consent for each item of Downloadable Software loaded on to the user's computer, and Publisher is prohibited from downloading a bundle of programs after receiving only one indication of consent. Without limitation, an ActiveX installation prompt (with nothing more) is not deemed to have obtained informed consent.
- Ongoing and continuing use of Downloadable Software must not surprise users with notices, disclosures or behaviors inconsistent with the applicable Downloadable Software's initial solicitation, disclosures and notices. For example, if the applicable Downloadable Software's initial solicitation described the underlying software program as offering "free smileys," the applicable program cannot later add the requirement that users also accept pop-up advertisements.
- Downloadable Software must offer users a genuine, substantial benefit in exchange for the consideration represented by accepting the underlying advertisements (the "Benefit"). If the Downloadable Software merely shows advertisements, without offering anything substantial in return (no Benefit), it is unlikely that the underlying software program offers users a fair value. If the underlying software program's claimed Benefit is otherwise generally available elsewhere at no cost, the program is unlikely to offer users a fair value. If the underlying software program's claimed Benefit is a mere trinket or triviality, the program is unlikely to offer users a fair value. If a program's advertisements appear whenever a user uses his computer, or whenever a user uses his web browser, even if the user never makes use of the program's Benefit, then the program may not offer users a fair value. Company reserves the right to determine, in its sole discretion, if the Downloadable Software's claimed Benefit represents a fair value to users.
- Users must easily be able to identify and understand the nature of the Downloadable Software's effects both prior to, and after, installation. If the Downloadable Software displays advertisements outside of its program window, each such advertisement must be labeled with the Downloadable Software program name. Each such advertisement must include a link, button or other mechanism whereby a user can learn more about: (i) the Downloadable Software presenting said advertisement; (ii) the specific manner in which the Downloadable Software was installed (including what offer is associated with that Downloadable Software); (iii) the specific date and time that the Downloadable Software was installed; and (iv) how the Downloadable Software can be removed (including a removal feature requiring not more than two (2) additional clicks). Without limiting the generality of the foregoing, the Downloadable Software and associated information, disclosures and notice, must not: (i) falsely claim that the Downloadable Software will be disabled by the user's actions; (ii) remove or disable security software; or (iii) take control of the computer (by accruing dial-up charges, or by opening a series of advertisements that can only be stopped by turning off the computer).
- Downloadable Software must not show advertisements that are unreasonably frequent or unreasonably intrusive. Software must only show one advertisement per site.
- Each advertisement shown via the Downloadable Software must appear entirely on-screen, with no portion of its body or title bar off-screen. Each advertisement shown via the Downloadable Software must be reasonable in size, and may not unreasonably cover (or reduce the visible area of) any underlying web page that a user had requested. An advertisement shown via the Downloadable Software may not wholly replace, or redirect a user away from, the page or website that the user had requested. Advertisements triggered in response to the user's attempt to access a specific web address or search of a trademark are strictly prohibited absent the express consent of the applicable website and/or trademark owner, as applicable.
- Each advertisement shown via the Downloadable Software must be closable by a user using ordinary operating system functions. Without limitation, on standard Windows operating PCs, freestanding advertising windows ("pop-up" and "pop-under") must be closable by clicking the upper-right hand corner "X," the upper-left hand corner "Control Menu," the Alt-F4 key, right-clicking on the applicable advertisement's title bar (and choosing "Close") and/or right clicking a Taskbar entry (and choosing "Close"). This ability to close such advertisements must be accompanied by an option to facilitate the removal of the Downloadable Software itself at each instance of advertisement presentation.
- Downloadable Software must not display advertising in illegitimate formats, outside of ordinary commercial norms. Without limitation, each of the following advertising formats requires special explicit user consent, which shall consist of a specific question to the user, clearly articulating the specific action to be taken and which must allow the user to grant or deny consent without any collateral consequences: (i) placing icons on a user's desktop or "Start Menu" (or similar location); (ii) directly routing the user to specific websites; and/or (iii) adding entries to a user's "Favorites" menu (or similar location). Downloadable Software may not be used to attack another program, to record a user's passwords, or to send bulk e-mail to other users.
- A user must be able to remove Downloadable Software via the standard function within the user's operating system (e.g. Control Panel – Add or Remove Programs). A removal procedure must be free of cost and may not unreasonably hinder removal, e.g. via extended procedures, convoluted language or confusing user interface elements or placement.
- Downloadable Software must use a consistent, single, clear name. That name must be shown in the Downloadable Software program's initial advertising (i.e. to recruit users), in its installation notice and consent procedures, on any advertising and in its uninstall procedure. A Downloadable Software program may not use multiple names within the scope of its relationship with a single user. A Downloadable Software program may not change its name unreasonably frequently (including, without limitation, more than once per twelve-month period). The company responsible for producing and/or distributing the applicable Downloadable Software may not use an unreasonably high number of product names or brand names in its dealings with multiple users. The entity responsible for producing and/or distributing the applicable Downloadable Software may not use an unreasonably high number of product names or brand names to obfuscate, hide or otherwise confuse its identity. Program names, and company names, may not be substantially misleading, confusing, duplicative, generic or hard to locate via a standard search (e.g. "Windows Plugin," "Search Toolbar," "Click Yes").
- Company strictly forbids the display of sexually-explicit materials via the Downloadable Software No Downloadable Software may display content that fails to satisfy all of the requirements of Section 2 of the Terms and Conditions.
- The applicable Advertisers' Creative and/or Offers should not appear in Downloadable Software except when such Advertisers specifically approve of those placements. Clickbooth Creative and/or Offers may not be displayed within third-party traffic purchases from Downloadable Software (whether in the form of pop-ups, pop-unders or via any other media).
- Downloadable Software must not come bundled with programs that violate the terms and conditions of the Agreement.
Lead Generation Guidelines
- Data Collection
- Publishers cannot hide fields without consumer disclosure.
- Hiding fields entails collection of personally identifiable information by the publisher and the transmission of that data to the advertiser without notifying the consumer which data will be shared. Personally identifiable information that is entered on the publisher's website prior to the consumer's interaction with an advertiser may be pre-populated in an offer form, but cannot be passed without providing the opportunity for the consumer to review that information.
- For example, if a consumer's email address is known from the publisher's registration page, it may be pre-populated on the offer data form in the appropriate field. This allows the consumer to easily review and edit his/her data, if necessary, and make an informed decision on whether he/she wants to share that data with the advertiser.
- Publishers cannot sell data that the consumer has provided during registration or on/in an advertiser offer form to other companies to use to market itself to the consumer without the consumer's knowledge or choice.
- Publishers who host lead generation offers within another publisher's registration process may use the collected data for improved optimization and targeting of subsequent offers. If the data is used for this purpose, the publisher must disclose usage of that data in their terms and conditions.
- Publishers and advertisers must disclose if the data collected will be shared with third parties.
- No sharing of personally identifiable information with 3rd party marketers for the purpose of sending email, without consent.
- Publishers and advertisers using third parties to manage their email list must have a formal data licensing agreement.
- If more than one list management partner is used, the publisher or advertiser must maintain opt-out procedures for each partner. In addition, establish a mechanism to quickly and efficiently remove these users from all list management partners.
- Publishers/Advertisers must allow consumers to easily skip offers if they do not want to share the data being requested by the advertiser or if they are no longer interested in the offer.
- This should include not using language such as; "You must select an offer to continue" unless selecting an offer is required. If the offer is not required, publishers should instead use language such as, "You must view an offer to continue."
- Publishers/Advertisers must ensure that the skip function is clear and conspicuous and is not hidden or difficult to locate on the offer. In addition, the skip function should be displayed in equal prominence to the submit function.
- Publishers/Advertisers must use clear language when using pre-selected custom offers. The publisher cannot "force" or insinuate that the consumer must select an offer in order to continue through the publisher's registration process.
- Prior to accepting any consumer information, the terms and conditions must be clearly and conspicuously disclosed so that a reasonable consumer may understand the essence of the proposed exchange.
- The terms and conditions must be accessible and prominent during the registration or offer selection process.
- When using the term "free" or "complimentary" or other similar terms, advertisers must ensure proper disclosures are made in proximity to the term, if some form of obligation is needed by the consumer to receive the offer.
- Publishers cannot promote Clickbooth offers via incentive without written confirmation from a Clickbooth representative.
- Publishers that run a combination of incentivized and non-incentivized offers throughout their registration process and website flow must clearly and conspicuously articulate to the consumer on the offer pages offer type – either required or optional. This disclosure should be at the top of such page before the consumer engages in any advertiser offers.
- If multiple pages are used with various offer requirements, it is recommended that consumers be able to navigate freely between the offer pages to better understand the scope of the incentive requirements.
- The publisher should disclose directly on the registration page exactly what the consumer needs to do in order to receive the reward.
- A summary of key requirements of the consumer must be disclosed on the first registration page.
- If the consumer must sign up for various offers to qualify for the reward, the publisher must disclose to the consumer the cost associated with each offer presented.
- If there is some form of monetary obligation needed to qualify for a gift, the publisher must provide the consumer with a representative estimate of such costs.
- When using the term "free" or "complimentary" or other similar terms, advertisers should ensure proper disclosures are made within close proximity of the claim, if some form of obligation must be incurred by the consumer to receive the offer.
- The disclosures concerning the term "free" must be displayed based on any existing statutes, regulations, or guidance in a publishers' area of operations. The disclosures must also be displayed in the same font color and type.
- The term "free" (or similar terms) and related disclosures must be highlighted on the registration page by a unique color and font that stands out from the other text on the creative material.
- If a purchase will be required by the consumer to receive the reward item, then the disclosure within close proximity of the word "free" (or similar terms) must be in the same color, font, and size of the word "free" (or similar terms) and it must educate the consumer about the purchase requirement(s).
- A summary of the requirements must be listed on the registration page. In addition, the verbiage qualifying the word "free" (or similar terms) must reference the summary terms and conditions listed on the registration page.
- If the offer requires the consumer to fulfill various requirements to receive a free gift, the consumer must always be required to certify he/she agrees to the terms and conditions.
- Use of Individual Information practices by publisher or advertiser, including but not limited to, public forums disclosure, publisher or advertiser email marketing practices, third party email marketing practices, service providers, aggregate statistics, data summary, order fulfillment, complying with legal process, offers, telemarketing, wireless addresses, short message service, and third party information sharing practices.
- Consumers visiting a particular web site must be provided meaningful notice of the types of individual information collected for interactive advertising purposes, the technologies employed to collect such information, and how such information is used, including that other companies operate on the site and may collect such information.
- Any state required disclosure pertinent to the publisher or advertiser’s offer.
- Technical Requirements for Privacy Policies:
Ringtone Mobile Guidelines
- If Mobile Promotional Content transmitted includes any potentially misleading terms including, but not limited to, "free," "complimentary," "no charge," "zero cost" and "no fee," then such Mobile Promotional Content must clearly and conspicuously and in a font size of equal prominence and proximity disclose, prior to the consummation of the sale or other transaction: that such content is only free when the end-user consumer ("User") makes a purchase and/or agrees to a subscription program; and all of the pricing, payment and other program related terms.
- Clickbooth strictly forbids the display of terms transmitted via Mobile Promotional Content that represent or imply that an Mobile Program is limited to certain geographical areas. (E.g., "Offer only valid to residents of New Jersey.")
- Mobile Promotional Content must be available via all carriers unless otherwise conspicuously disclose, prior to the consummation of the sale or other transaction, which content is available through which carriers.
- Mobile Promotional Content must be available via all wireless devices unless otherwise conspicuously disclose, prior to the consummation of the sale or other transaction, the specific makes and models for which content is available.
- Publishers must use creatives provided by Clickbooth. Any changes to creatives must be approved in writing by a Clickbooth Representive before deployment.
- All Mobile Promotional Content distributed must clearly and conspicuously disclose the following: (1) any initial and recurring charge, and the amount and frequency of any recurring charge; (2) whether any additional charges apply; and (3) if there is a recurring charge, that the User will be charged automatically until he/she cancels the applicable plan.
- You may not condition subscription to any Mobile Program upon the User's agreement to receive advertising or promotional messages delivered electronically to such User's mobile device via text messaging, e-mail or otherwise.
- Without limiting any of the foregoing, all Mobile Promotional Content transmitted by You in connection with an MOBILE Program must contain a link to the applicable terms and conditions of the applicable MOBILE Program, as well as all material terms of the applicable MOBILE Program ("Material Terms") displayed clearly and conspicuously immediately adjacent to any and all applicable mobile device and/or P.I.N code "submit" field(s) or other button(s) that indicate(s) consent as each appear in the applicable order path (each, a "Submit Field"). Material Terms include, but are not limited to the following: program availability on a carrier-by-carrier basis; the cost of the product or service including, as applicable, whether other charges may apply if the User chooses to obtain such product or service; whether the charge(s) will be billed on the User's wireless phone bill or deducted from his/her prepaid balance, and how the charge(s) will appear on the wireless phone bill; whether the MOBILE Program is offered via a subscription and if so, the length of the subscription term, the billing cycle for that subscription (e.g., weekly, monthly, yearly, etc.) and whether the User will be billed automatically at the commencement of each such billing cycle until cancelled; the name and toll free number or email address of the applicable sender any minimum age requirement; the cancellation policy; and that the User must be eighteen (18) years of age or older. All Material Terms of a MOBILE Program must be consistent across that MOBILE Program from the Creative to the corresponding landing page(s), confirmation page(s) and/or other web pages that are linked to such Creative so as not to be misleading.
- Must ensure that the phrase "terms and conditions" is clearly visible (via most major Internet Browsers) and linked to on every landing page or similar web page used in connection with a Mobile Program, as well as any and all Submit Fields appearing on any page in the order path, such that the User is provided with notice of, and the ability to access, such terms and conditions without having to scroll down on the applicable pages.
- Company strictly forbids the use of pre-checked boxes to indicate acceptance of the terms and conditions for any Mobile Program. Users must indicate their acceptance of an Mobile Program by affirmatively consenting to the terms and conditions for that Mobile Program.
- Where applicable, Publisher must comply with then current Mobile Marketing Association Rules regarding consumer opt-in requirements for the applicable MCS Program.
- Single opt-in is required for standard rate MCS Programs; and
- Double opt-in is required for premium rate MCS Programs.
- Clickbooth strictly forbids the display of sexually-explicit materials via Mobile Promotional Content transmitted which includes, but is not limited to, Mobile Promotional Content from Clickbooth. As an Publisher, You represent and warrant that Your Mobile Promotional Content programs will not contain objectionable content (including, but not limited to, content that is misleading, libelous, defamatory, obscene, offensive, violent, bigoted, hate-oriented, illegal and/or that promotes illegal goods, services or activities).
- Company strictly forbids You to transmit Mobile Promotional Content to anyone under the age of eighteen (18). Notwithstanding the foregoing, You shall distribute only such Mobile Promotional Content that complies with all applicable laws associated with children and marketing including, but not limited to, the Children's Online Privacy Protection Act ("COPPA"), rules promulgated pursuant thereto and regulations regarding age restrictions for particular products. This includes, but is not limited to, Mobile Promotional Content containing cartoons or other images that might be considered tailored or attractive to children.
- Clickbooth strictly forbids the use of social media profiles (e.g., MySpace, Facebook, Tribe) to advertise or distribute Mobile Promotional Content. This does not preclude You from purchasing banner advertisements on social media websites to advertise and distribute Mobile Promotional Content.
- Your distribution of Mobile Promotional Content in connection with any and all MobilePrograms must not: (1) infringe, misappropriate or otherwise violate any copyright, patent, trademark, trade secret or other similar intellectual property right of any third party; (2) otherwise violate or breach any duty toward, or rights of, any person or entity including, without limitation, rights of privacy and publicity; or (3) result in any consumer fraud, product liability or breach of contract to which You are a party.
- Publishers shall not use Clickbooth or its represented Advertisers' names (including any abbreviation thereof) or any trademark, trade name, service mark, logo or other Company-identifying information in any part of any Mobile Promotional Content transmission unless otherwise directed by a Clickbooth Representative in writing.
- Other than where disclosure of availability on a carrier-by-carrier basis is required, You shall not represent or imply that You are affiliated with any carriers, or otherwise improperly use carrier names (including any abbreviation thereof) or any carrier's trademark, trade name, service mark, logo or other carrier-identifying information in any part of any Mobile Promotional Content transmission unless otherwise directed by a Clickbooth Representative in writing.
- You shall not falsely represent or imply that You are certified by any third-party in any part of any Mobile Promotional Content transmission. This includes but is not limited to falsely representing that Your website has been "certified by TRUSTe," or falsely representing that You are an "Official Partner" of a carrier or other large corporation.
- You must be clear, complete and forthcoming in all statements directed at and concerning Clickbooth, its Advertisers and recipients of Mobile Promotional Content.
- The Term "FREE" or similar verbiage may not be used on any creative or landing pages to describe the product or service offered if there is any current or future charge for the product or service.
- Disclose on all landing pages in a clear and prominent manner the material terms and conditions of the offer including all pricing, fees, continuity plans in addition to the Terms and Conditions link.
- Prominently Disclose the price and time when payments are going to be taken prior to collecting any credit card or checking account information on the order page.
- Obtain the consumers' advance consent for electronic transfer of funds and follow the requirements of the EFTA.
- Prominently display a link informing consumers of their right to refund or cancellation. In such policy specify the procedure of how to obtain a refund and how to cancel. All refunds and cancellations must be fulfilled within 7 days of the consumer’s initial request.
- Must have a dedicated staff or out-sourced referral staff to resolve any consumer questions, complaints, refunds or cancellation. This service must not have more than a ten minute hold or wait time for the consumer.