TanCenter and Publisher, enter into this Publisher Network Agreement to establish the terms and conditions by which Publisher may enter the TanCenter Network and display advertisements on behalf of TanCenter Customers .
Advertiser means TanCenter and/or the advertiser or advertising agency providing Ads to TanCenter for use on Publisher's Website(s) as specified herein.
Approved Websites means the Publisher's domain(s) and/or specific root URLs and or blogs approved by TanCenter . TanCenter
TANCENTER AND PUBLISHER AGREE AS FOLLOWS:
1. TanCenter Network
(a) Membership: Membership in the Network is subject to prior approval by TanCenter . TanCenter reser
(b) TanCenter Websites:
For purposes of this Agreement, all Websites that are owned, operated
or hosted by or on behalf of TanCenter, are referred to herein
collectively as the "TanCenter Websites." You agree that you will not
use the TanCenter Websites or any content therein or data obtained
therefrom for any purposes other than to fulfill this Agreement and that
you will not disseminate any of the information contained
on TanCenter Websites, without prior consent from TanCenter . You agree
that you will not use any automated means, including, without
limitation, agents, robots, scripts, or spiders, to access or manage
your account with TanCenter or to monitor or copy the TanCenter Websites
or the content contained therein except via automated means expressly
made available by TanCenter , if any, or authorized in advance and in
writing by TanCenter (for example, TanCenter -approved third-party tools
and services). You will not interfere or attempt to interfere with the
proper working of the TanCente
Services: Publisher understands and agrees that from time to time
the TanCenter System hereunder may be inaccessible, unavailable or
inoperable for any reason, including, without limitation: (i)
equipment malfunctions; (ii) periodic maintenance procedures or repairs
which TanCenter may undertake from time to time; or (iii) causes beyond
the control of TanCenter or which are not reasonably foreseeable
by TanCenter, including, without limitation, interruption or failure of
telecommunication or digital transmission links, hostile network
attacks, the unavailability, operation, or inaccessibility of Websites
or interfaces, network congestion or other failures.
While TanCenter will attempt to provide the services on a continuous
basis, Publisher acknowledges and agrees that TanCenter has no control
over the availability of the services on a continuous or uninterrupted
basis. Publisher also understands and agrees that TanCenter is not
responsible for the functionality of any third-party Website or
interface. Terms of this Agreement are subject to TanCenter hardware,
software, and bandwidth traffic limitations. Failure to deliver because
of technical difficulties does not represent a failure to meet the
obligations of this Agreement. TanCenter reserves the right to
discontinue offering any of the TanCenter Systems
and/or TanCenter Websites at any time. Except as otherwise specified
by TanCenter, Publisher agrees that it will direct all communications
relating to any TanCenter Website or your participation therein directly
to TanCenter and not to any other entity.
2. Website Content and Prohibited Conduct
(a) Pre-approval Required: Publishers that have Websites that relate to or have any characteristic of the following shall be approved on a case by case basis: (i) excessive ads, app quest/test, user content (blogs, etc.), (ii) controversial issues, religion, sexual orientation and/or edgy humor, (iii) wrestling, (iv) anime, (v) old content, and/or (vi) poor quality design and functionality.
Conduct: TanCenter does not accept Websites that produce, relate to or
have characteristics of Prohibited Conduct. Prohibited Conduct is
(i) Ad Placement & Tracking: Publisher shall not: (1) Place Creatives or Ads in emails without prior consent and tracking from TanCenter; (2) Intentionally place Creatives on blank web pages or on web pages with no content; (3) Stack Creatives (e.g. place on top of one another so that more than 2 ads are next to each other); (4) Place Creatives on non-approved Websites or web pages, or in such a fashion that may be deceptive to the User; (5) Incentivize offers or create the appearance to incentivize offers; (6) Place statements near the Ads requesting that Users "click" on the Ad (i.e., "Please click here") or "visit" the sponsor (i.e., "Please visit our sponsor"); (7) Place misleading statements near the Ad (i.e., "You will win $5,000."); (8) Redirect traffic to a Website other than that listed by the particular Advertiser; (9) Ask Users to take advantage of other Ads or offers other than those listed by the particular Advertiser; (10) Serve Creatives, or drive traffic to such Creatives, using any downloadable applications without the prior written approval of TanCenter, which, if provided, is subject in each case to the following condition: Creatives delivered in approved downloadable applications may only be shown once per User session when the application is active, enabled and clearly recognizable by the end User as being active and enabled. Serving Creatives at anytime when the downloaded application is not active is strictly prohibited and grounds for immediate termination without pay; (11) Use invisible methods to generate impressions, clicks, or transactions that are not initiated by the affirmative action of the end-user; (12) Attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the Website tags, source codes, links, pixels, modules or other data provided by or obtained from TanCenter that allows TanCenter to measure ad performance and provide its service.
(ii) Websites: Publisher shall not place any Creative, Ads or Network IP on Web Sites that contain, promote, reference or have links to: (1) profanity, sexually explicit materials, hate material, promote violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation, age, or family status, or any other materials deemed unsuitable or harmful to the reputation of TanCenter; (2) software piracy (warez, cracking, etc.), hacking, phreaking, emulators, ROMs, or illegal MP3 activity.; (3) illegal activities, deceptive practices or violations of the intellectual property or privacy rights of others; (4) Websites under construction, hosted by a free service, personal home pages, or do not own the domain they are under; (5) charity clicks/donations, paid to surf, personal Websites, Website applicants who are not the owner of or employed by the applying Website, active x downloads, no content (link site), all affiliate links, or incentivized traffic; (6) Promote activities generally understood as Internet abuse, including but not limited to, the sending of unsolicited bulk electronic mail or the use of Spyware. For purposes hereof, Spyware shall mean computer programs or tools that (i) alter a computer Users browser or other settings or use an ActiveX control or similar device to download ad supporting software without providing fair notice to and obtaining affirmative consent; (ii) prevent a computer Users reasonable efforts to block the installation of or disable or remove unwanted software; (iii) remove or disable any security, anti-spyware or anti-virus technology on a Users computer; (iv) send email through a Users computer without prior authorization; (v) open multiple, sequential, stand-alone advertisements in the consumers Internet browser which cannot be closed without closing the Internet browser or shutting down the computer or (vi) other similar activities that are prohibited by applicable law.
& Miscellaneous: Publisher shall not: (1) Violate guidelines of any
search engines being utilized; (2) Engage in search engine spam, doorway
pages, cloaking, etc.; (3) Bid on any trademarked name or terms in any
PPC/keyword/adword/campaign; (4) Conduct search Ads falsely suggesting a
link between TanCenter and a third- party or otherwise infringing on a
third-partys intellectual property rights; (5) Engage in any advertising
via facsimile or telemarketing; (6) Engage in any misleading or
3. Ad Content and Placement
(a) Compliance with Industry Standards: Publisher agrees to undertake and complete the services as specified by the TanCenter Network, including all Ad placement restrictions or channels specified, in accordance with the highest industry standards. Publisher shall position the Ads in such a manner to assure that they are fully and clearly visible to consumers and displayed in a similar manner as other merchants included in the Website.
(b) No Modifications to Creative, Code or Network IP:
Except as permitted under this Agreement, Publisher may not alter, copy,
modify, take, sell, re-use, or divulge in any manner any Creative,
Network IP or computer code provided by TanCenter without TanCenter
(c) Requirements: Publisher shall be solely responsible for (i) managing its advertising content exclusions in the TanCenter interface, and (ii) placing Ads on the Publisher Media, which placement shall be subject to the terms and conditions of this Agreement. Ads may only be placed on Approved Websites. TanCenter pop-up or pop-under window cannot be launched from Websites that launch more than a total of one pop window, including the TanCenter pop. Skyscrapers or wide skyscrapers and half page formats cannot be placed on the same page. Publisher will not place ads on blank pages, on pages with no content, on top of one another, on non-approved Websites, or in such a fashion that may be deceptive to the visitor. Publisher agrees to use the TanCenter Code provided by TanCenter for displaying an Ad not more than ONCE per page view. Placement of ads in email must be done after notifying TanCenter so appropriate tracking measures can be put in place.
(d) Default Ads: Publisher acknowledges and agrees
that TanCenter may not be able to fill 100% of advertising requests sent
to its servers with paying Ads. If Publisher chooses not to specify a
default redirect ad, TanCenter will display so-called 'house' and/or
'AdCouncil' ads on Publisher's Website when paid advertising is
unavailable. TanCenter may also display so-called 'house' and/or
'AdCouncil' ads on Publisher's Websites when technical difficulties
require it. So-called 'house' and 'AdCouncil' ads are not paid
advertising. Under no circumstances does TanCenter guarantee to provide
any percent fill of paid advertising to a Website.
4. Network Quality
TanCenter will not tolerate or accept any activities it deems harmful or potentially damaging to its reputation and/or business, or that of its customers and/or clients including but not limited to the activities stated in this Agreement. TanCenter employs individuals for the express purpose of monitoring the Publisher's Websites within our network to ensure that our customers and clients are receiving the highest quality campaigns. TanCenter has also developed an advanced anti-fraud system and regularly audits Publisher's traffic. Publishers that commit fraudulent activities, including false clicks, false impressions, and incentivized clicks, will have their account permanently removed from the Network and may not be compensated for fraudulent traffic. TanCenter has several fraud mechanisms at its disposal that will detect most forms within a few days of the initial activity. All Creatives must be served from a TanCenter server or serving location, or through a TanCenter approved 3rd-party-hosted server. Stored images that are loaded from a different location will not count towards any statistic or payment.
5. Proprietary Rights
(a) Licenses: At the agreed upon pay-out price and provided that Publisher complies with all provisions of this Agreement, TanCenter hereby grants to Publisher a nonexclusive, limited, revocable license to use, execute, and display the Network IP solely for purposes of performing its other obligations hereunder. Except for the limited license expressly granted in this Section, nothing in this Agreement shall be construed as TanCenter granting Publisher any right, title or interest in Network IP. Publisher acknowledges and agrees that TanCenter and/or Advertiser owns all right, title and interest in and to the Network IP and all related intellectual and proprietary rights of any kind anywhere in the world. Publishers use of the Network IP or the results created thereby, or disseminating or distributing any of this information except as expressly permitted by this Agreement is strictly forbidden and will result in the termination of this limited license and may result in Publisher being held liable under applicable law.
(b) Intellectual Property Ownership: Subject to the limited licenses granted to TanCenter and Publisher hereunder, each party shall own and shall retain all right, title and interest in its trade names, logos, trademarks, service marks, trade dress, Internet domain names, copyrights, patents, trade secrets, know how and proprietary technology, including, without limitation, those trade names, logos, trademarks, service marks, trade dress, copyrights, patents, testimonials, endorsements, know how, trade secrets and proprietary technology currently used or which may be developed and/or used by it in the future ("Intellectual Property"). Except as provided in this Agreement, neither party may distribute, sell, reproduce, publish, display, perform, prepare derivative works or otherwise use any of the Intellectual Property of the other party without the express prior written consent of such party.
(c) Data Ownership: Publisher
understands that all data, including, but not limited to, personally
identifiable information provided by Users in response to an Ad and/or
any or all reports, results, and/or information created, compiled,
analyzed and/or derived by TanCenter from such data is the sole and
exclusive property of Advertiser and TanCenter and is considered
Confidential Information pursuant to this Agreement. TanCenter and/
6. Representations and Warranties
(a) Publisher Responsibility: The parties hereby acknowledge that Publisher is solely responsible for the method of dissemination of the campaigns, and that TanCenter will not have any control over the method of dissemination and is relying entirely on these warranties made by Publisher.
(c) Mutual Warranties: Each
party represents and warrants to the other that (i) it has the full
right, power, legal capacity, and authority to enter into, deliver and
fully perform under this Agreement; (ii) neither the execution,
delivery, nor performance of this Agreement will result in a violation
or breach of any contract, agreement, order, judgment, decree, rule,
regulation or law to which such party is bound; and (iii) such party
acknowledges that the other party makes no representations, warranties,
or agreements related to the subject matter hereof that are not
expressly provided for in the Agreement.
(a) Obligations: Internet consumer privacy is of paramount importance to TanCenter, its subsidiaries, and its customers. TanCenter is committed to protecting the privacy of consumers, clients, and Advertisers, and to do its part to maintain the integrity of the Internet. Publisher therefore affirms and attests that it will adhere to fair information collection practices with respect to its performance under this Agreement.
(b) Privacy Requirements: Publisher agrees
to the following and must clearly post on its Website an easy to
(national, in the US compliant with FTC) guidelines and any other
applicable laws, rules and regulations with respect to online privacy;
(ii) identifies the nature and scope of the collection and use of
information gathered by Publisher and offers the User an opportunity to
opt out from such collection and use of the data; and (iii) contain
language materially similar to the following:
(a) Payment Rate: TanCenter reserves the right to set campaign rates, which may vary with market conditions. Do not invoice TanCenter; all Publisher invoices are discarded. Publishers will be paid at the account level. All unpaid earnings will rollover to the next pay period. All payments are based on actuals as defined, accounted and audited by TanCenter. TanCenter reserv
(b) Breach or Fraud: If any Publisher
violates or refuses to fulfill its responsibilities, or commits
fraudulent activity, TanCenter reserves the right to withhold payment
and take appropriate legal action.
(c) Calculation: Calculation of Publisher earnings, including Impressions and click through numbers, shall be in TanCenters sole discretion. In the event Publisher disagrees with any such calculation, Publisher shall immediately send a written request to TanCenter detailing, with specificity, Publisher's concerns. Thereafter, TanCenter will provide Publisher with an explanation or, if such calculations are determined by TanCenter to be incorrect, an adjustment. TanCenter calculat
Publisher is solely responsible for any legal liability arising out of or relating to (i) Publisher's Website(s), (ii) any material to which Users can link through Publisher's Website(s), and/or (iii) any consumer and/or governmental/regulatory complaint arising out of any campaign conducted by Publisher, including but not limited to any spam or fraud complaint and/or any complaint relating to failure to have proper permission to conduct such campaign to the consumer. Publisher shall indemnify, defend, and hold harmless TanCenter and its officers, directors, employees, agents, shareholders, partners, affiliates, representatives, agents and Advertisers (collectively TanCenter Partie
10. Limitations of Warranties and Liability
(a) Disclaimer of Warranties: ALL SERVICES PROVIDED BY THE TanCenter ARE PROVIDED ON AN AS IS AS AVAILABLE BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, TanCenter MAKE
(b) Limitation of Liability: UNDER NO CIRCUMSTANCES SHALL TanCenter BE LIABLE TO PUBLISHER FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF TanCenter HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM ANY ASPECT OF THE ADVERTISING RELATIONSHIP PROVIDED HEREIN. IN NO EVENT SHALL TanCenter TOTAL OBLIGATIONS OR LIABILITY HEREUNDER EXCEED THE LESSER OF THE SPECIFIC ADVERTISING CAMPAIGN IN QUESTION OR ONE THOUSDAND DOLLARS ($1,000.00). REGARDLESS OF ANY LAW TO THE CONTRARY, NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST TanCenter MORE THAN ONE (1) YEAR AFTER THE DATE UPON WHICH THE CLAIM AROSE.
PUBLISHER ACKNOWLEDGES THAT TanCenter HAS AGREED TO PRICING IN RELIANCE
UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES
AND DAMAGES SET FORTH HEREIN, AND THAT THESE CONSIDERATIONS FORM AN
ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. PUBLISHER AGREES
THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY AND DISCLAIMERS
SPECIFIED IN THESE TERMS WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE
FAILED OF THEIR ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE
EXCLUSION OF CERTAIN WARRANTIES OR LIABILITIES, SO SOME OF THE ABOVE
EXCLUSIONS MAY NOT APPLY TO PUBLISHER.
11. Term and Termination
(a) Termination: This Agreement, as may be amended, applies to Publisher for as long as Publisher distributes Ads for TanCenter. TanCenter reser
(b) Post-termination: Upon termination, Publisher agrees to immediately remove from the Websites any and all TanCenter Code and Network IP supplied to Publisher by TanCenter. Publisher will be paid, in the next scheduled payment cycle following termination, all legitimate, non-fraudulently accrued, earnings due up to the time of termination. Upon termination all ties to referrals will be permanently severed and Publisher will not receive nor be entitled to receive future referral commissions hereunder.
Each party agrees that it may provide the other with information that is confidential and proprietary to that party or a third- party, as is designated by the disclosing party or that is reasonably understood to be proprietary and/or confidential ("Confidential Information"). TanCenter campa
13. Choice of Law and Attorneys Fees
This Agreement is governed by the laws of the State of Delaware (USA), except for its conflict of law provisions. The exclusive forum for any actions related to this Agreement shall be in the state courts, and, to the extent that federal courts have exclusive jurisdiction, in Delaware. The parties consent to such venue and jurisdiction, waive any right to a trial by jury, and agree to waive the personal service of any process upon them by agreeing that service may be effected by overnight mail (using a commercially recognized service) or by U.S. mail with delivery receipt to the last address provided by Publisher. The application of the United Nations Convention on the International Sale of Goods is expressly excluded. A party that primarily prevails in an action brought under this Agreement is entitled to recover from the other party its reasonable attorneys fees and costs.
14. Entire Agreement and Modification
No rights or obligations under this Agreement may be assigned by Publisher without the prior written consent of TanCenter. Any assignment, transfer or attempted assignment or transfer in violation of this Section shall be void and of no force and effect. TanCenter and any of its subsequent assignees may assign this Agreement, in whole or in part, or any of its rights or delegate any of its duties, under this Agreement to any party. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns.
16. Independent Contractors
Each party is an independent contractor. Any intention to create a joint venture or partnership between the parties is expressly disclaimed. Except as set forth herein, neither party is authorized or empowered to obligate the other or to incur any costs on behalf of the other without the other partys prior written consent.
Publisher shall not release any information regarding Campaigns, Creatives, or Publishers relationship with TanCenter or its customers, including, without limitation, in press releases or promotional or merchandising materials, without the prior written consent of TanCenter. TanCenter shall have the right to reference and refer to its work for, and relationship with, Publisher for marketing and promotional purposes. No press releases or general public announcements shall be made without the mutual consent of TanCenter and Publisher.
18. Force Majeure
Neither party shall be liable by reason of any failure or delay in the performance of its obligations hereunder for any cause beyond the reasonable control of such party, including but not limited to electrical outages, failure of Internet service providers, default due to Internet disruption (including without limitation denial of service attacks), riots, insurrection, acts of terrorism, war (or similar), fires, flood, earthquakes, explosions, and other acts of God.
19. Survival and Severability
Any obligations which expressly or by their nature are to continue after termination, cancellation, or expiration of the Agreement shall survive and remain in effect after such happening. Each Party acknowledges that the provisions of the Agreement were negotiated to reflect an informed, voluntary allocation between them of all the risks (both known and unknown) associated with the transactions contemplated hereunder. All provisions are inserted conditionally on their being valid in law. In the event that any provision of the Agreement conflicts with the law under which the Agreement is to be construed or if any such provision is held invalid or unenforceable by a court with jurisdiction over the Parties to the Agreement, then (i) such provision will be restated to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law; and (ii) the remaining terms, provisions, covenants, and restrictions of the Agreement will remain in full force and effect.
20. Remedies and Waiver
Except as otherwise specified, the rights and remedies granted to a party under this Agreement are cumulative and in addition to, not in lieu of, any other rights and remedies which the party may possess at law or in equity. Failure of either party to require strict performance by the other party of any provision shall not affect the first partys right to require strict performance thereafter. Waiver by either party of a breach of any provision shall not waive either the provision itself or any subsequent breach.
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