Commission Junction Publisher Agreement
Introduction
This Publisher Agreement
("Agreement") is made by and agreed to between Commission Junction,
Inc., a Delaware corporation, located at 530 East Montecito Street,
Santa Barbara, CA 93103, USA ("CJ"), and you ("You"). As an application provider, CJ facilitates "Performance Marketing Programs" by
providing services ("Network Service") via the Internet. A "Performance
Marketing Program" ("Program") is where a person, entity, affiliate or
its agent, operating "Web site(s)" (internet domain,
or a portion of a domain) and/or other promotional methods to drive
traffic to another's Web site or Web site content ("Publisher") may
earn financial compensation ("Payouts") for "Transactions" (actions by
Visitors as defined by the Advertiser) referred by such Publisher via
an action made by a "Visitor" (any person or entity that is not the
Publisher or the Publisher's agent) through an Internet connection
("Link") to a Web site or Web site content operated by another person
or entity ("Advertiser") from an Advertiser authorized promotional
method used by such Publisher. The Advertiser compensates the
Publisher, in accordance with this Agreement and the Program Payout
specifications.
1. Participation in Programs.
(a) Acceptance by Advertiser. During this Agreement
You may apply to Advertiser Programs for the opportunity to earn Payouts
by promoting Advertisers in accordance with the Advertiser's Program
terms and complying with this Agreement. Upon approval by the Advertiser
for acceptance into its Program, You may display (and remove) Links to
Advertiser's Web site or Web site content in accordance with the
Advertiser's Program terms and this Agreement. An Advertiser's
acceptance of You extends only to the entity, or individual, that enters
into this Agreement with CJ.
(b) Program Terms. The details of an Advertiser's
Program shall be available through the Network Service. Transactions
qualifying for a Payout are defined by the Advertiser. Advertisers may
change any Payout rate upon no less than 7 days written notice through
the Network Service with effect from the 8th day (or such later date as
specified by Advertiser).
(c) Additional Terms.Publishers and Advertisers may
enter into direct contractual relationships through a click-through
agreement hosted by CJ and/or other agreement(s) (“Click-through
Agreement”). It is Your obligation to review and to either accept or
decline such Click-through Agreement when one is presented to You. If
accepted by You, compliance with the Click-through Agreement, as
applicable, is solely Your responsibility. The terms and conditions of
the Click-through Agreement, as applicable, shall apply only with
respect to Your relationship with that particular Advertiser. Nothing
contained in a Click-through Agreement, as applicable, may conflict with
the terms and conditions contained in this Agreement. In the case of
such conflict, this Agreement shall control.
(d) Prohibited Uses of Links.
(i) Locations.
You may not place Links to an Advertiser's Web site or Web site content
in third party newsgroups, message boards, blogs, unsolicited email
and other types of spam, link farms, counters, chatrooms, or
guestbooks. Publishers using IRC channels, instant messages or similar
Internet resources must designate their program as special requiring
manual review and acceptance by the Advertiser.
(ii) Non-Bona Fide Transactions. You must promote
Advertisers such that You do not mislead the Visitor, and such that the
Links deliver bona fide Transactions by the Visitor to Advertiser from
the Link. You shall not cause any Transactions to be made that are not
in good faith, including, but not limited to, using any device,
program, robot, Iframes, or hidden frames. You may or may not be
compensated for Transactions where You or Your agent are the Visitor.
Multiple Leads from the same individual, entity or IP address may be
considered non-bona fide Transactions. You shall not earn Payouts for
non-bona fide Transactions.
(iii) Infringement. None of Your promotional
activities may infringe an Advertiser's proprietary rights (including
but not limited to trademark rights), CJ's proprietary rights, or a
third party's proprietary rights.
(e) Updating Links. If Links to Advertiser are not dynamically updated through the Network
Service, upon notification You are obligated to update an Advertiser's
Links in order to earn Payouts.
(f) Emails. You hereby understand, acknowledge and
accept that CJ, CJ systems, CJ partners' systems and/or third party
systems may and has/have the right granted by You to send emails and
other communications to You on behalf of CJ, Advertisers, and other CJ
partners and affiliates, including solicitation and service solicitation
emails. You may have the ability to change some of Your email settings
and preferences.
2. Publisher Obligations to CJ.
(a) Accurate, Up-to-Date Information. You agree to
provide CJ and Advertiser with accurate information about You and Your
promotional methods, and to maintain up-to-date “Account” information
(such as contact information, Web sites used, etc.). In Your Account,
You must accurately, clearly and completely describe all promotional
methods by selecting the appropriate descriptions and providing
additional information when necessary. Some promotional methods will be
designated by the system as “special”. Special programs are linked to
promotional methods and practices considered unique and require manual
approval and acceptance by the Advertiser. CJ reserves the right to
define any program as special.
(b) Use of Links. You represent and warrant that all
promotional means used by You will not contain objectionable content
(including but not limited to content that is misleading, libelous,
defamatory, obscene, violent, bigoted, hate-oriented, illegal, and/or
promoting illegal goods, services or activities), and that You will not
mislead others. You agree to: (i) use ethical and legal business
practices, (ii) comply with the Advertisers' Program terms and this
Agreement, (iii) maintain a privacy policy on Your Web site and for any
non-Web site based promotional method made available to Visitors, and
(iv) designate Your Publisher Account as “special” if You promote an
Advertiser(s) by any means other than displaying a Link to the
Advertiser on Your Web site. CJ must approve all of Your promotional
activities and may deem Your promotional activities inappropriate and a
material breach of this Agreement in CJ's sole discretion. Our network
quality department reviews publisher conduct and any suspected
fraudulent, abusive or otherwise illegal content or activity by You
through Your promotional methods, or that is perpetrated through use of
the Network Service, is grounds for immediate termination of this
Agreement or deactivation of Your Account.
(c) Promotional Methods. You represent and warrant
that You will not engage in and/or facilitate spamming, indiscriminate
advertising or unsolicited commercial email or otherwise fail to comply
with the CAN SPAM Act of 2003 (Public Law 108-187 or any successor
legislation), and/or any other laws and/ or regulations that govern
email marketing and/or communications. You represent and warrant that
You will not engage in pop-up or pop-under advertising using any means
involving third party properties and/or services (software). Pop
up/unders are acceptable on a first party basis only when triggered by
Your site content /site visit or by downloadable software applications
for which You are the owner/operator. Pop up/unders delivered through
downloadable software cannot engage in means that force clicks or
perform redirects, or pop over a pay-per-click listing or natural search
results. Pop up/unders must honor the CJ Publisher Code of Conduct
requirements (as such requirements may be modified from time to time),
including but not limited to: (i) installation requirements, (ii)
enduser agreement requirements, (iii) afsrc=1 requirements, (iv)
requirements prohibiting usurpation of a Transaction that might
otherwise result in a Payout to another Publisher (e.g. by purposefully
detecting and forcing a subsequent click-through on a link of the same
Advertiser) and (v) non-interference with competing advertiser/
publisher referrals.
(d) Personally Identifiable Information of Visitors.
You represent and warrant that You will not enable the Tracking Code to
collect personally identifiable information of Visitors that would
allow CJ to personally identify Visitors.
(e) Privacy. You must conspicuously post Your privacy
policy on Your Web site and otherwise make it available to all
Visitors. Your privacy policy must comply with all laws and regulations
regarding the privacy of Visitor information, be commercially
reasonable, and fully and accurately disclose Your collection and use of
Visitor information. You must fully and accurately disclose Your use
of third party technology, including CJ's tracking technology, use of
cookies and options for discontinuing use of such cookies.
(f) Applicable Codes and Code Maintenance. In order
for CJ to record the tracking of Visitors' Transactions resulting from
clicks on Links to Advertisers promoted by You, You must include and
maintain a CJ “Tracking Code” within the Advertiser's Links. All
Advertiser Links and all advertisements ("Ad Content") must be in a
Network Service compatible format.
(g) Usage and Security of Account. You shall be
responsible for all usage and activity on Your account and for loss,
theft or unauthorized disclosure of Your password (other than through
CJ's negligent or willful conduct or omission). You shall provide CJ
with prompt written notification of any known or suspected unauthorized
use of Your Account or breach of the security of Your Account.
3. CJ's Services.
(a) Tracking Transactions and Payouts. CJ shall
determine (where possible) actual Payouts that should be credited to
Your Account. CJ may, in CJ's sole discretion, apply an estimated amount
of Payouts, if: (i) You are referring Visitors to Advertiser as
verified by clicks through Links to Advertiser with CJ Tracking Code,
(ii) where there is an error in Advertiser's transmission of Tracking
Code data to CJ, and (iii) where CJ is able to utilize a historical
analysis of Your promotion of Advertiser to determine an equitable
amount of estimated Payouts.
(b) Charge-backs. An Advertiser may apply, or CJ may
apply, a debit to Your Account in an amount equal to a Payout previously
credited to Your Account in circumstances of : (i) product returns;
(ii) duplicate entry or other clear error; (iii) non-bona fide
Transactions; (iv) non-receipt of payment from, or refund of payment to,
the Visitor by the Advertiser; or (v) Publisher failure to comply with
Advertiser's Program terms or other agreement with Advertiser
("Charge-back"). Charge-backs may be applied to Your Account at any
time, including previous payment cycles.
(c) Access to Tracking and Reporting Tools. CJ shall
provide You with access to tracking and reporting tools, and to support
services. From time to time CJ may offer optional services for a fee.
Fees for such optional services are at CJ's then-current published rates
or as may be quoted by CJ, and are payable in advance or may be
off-set against Your positive Account balance (at CJ's discretion).
Tracking detail regarding Visitor Transactions is not available on a
real-time basis for all Advertisers and there may be reporting delays
regarding Transactions for some Advertisers. CJ may make available, for
fees that CJ shall publish from time-to-time, enhanced reporting
capabilities and other services that are not included in the standard
Network Service.
(d) Support. Support for your program is available
on-line through the "Contact Us" area in the CJ Account Manager, which
allows You to categorize and describe Your issue. Online help also
allows You to check the status of all issues through the "Check Question
Status" feature. Phone support may also be available during operating
hours, except holidays.
(e) Facilitating Payment of Payouts. Subject to other
provisions in this Agreement, CJ shall credit Your Account with a
Payout for each qualifying Transaction in accordance with the
Advertiser's Payout rate and Program terms for the relevant Transaction.
On or about the 20th day of each calendar month, CJ will issue to You
any positive balance in Your Account for Transactions reported for the
previous month, provided Your Account balance exceeds the required
“Minimum Account Balance.” CJ shall have no obligation to make payment
of any Payouts for which CJ has not received payment from the relevant
Advertiser of all monies due to CJ (including for all Payouts owed by
such Advertiser to all of such Advertiser's Publishers). If CJ elects,
in its own discretion, not to make payment to You for amounts not
received from an Advertiser, those amounts shall not be included in the
Minimum Balance Amount. Your recourse for any earned Payouts not paid
to You shall be to make a claim against the relevant Advertiser(s), and
CJ disclaims any and all liability for such payment. You may elect to
receive payment in any of the currencies that CJ supports (as may be
amended by CJ). The conversion rate shall be determined in accordance
with CJ's operating standards using the rates prevailing upon the date
that payment is made to You, or upon the basis of historical conversion
rates if rates are unavailable. The number or amount of Transactions,
credits for Payouts, and debits for Charge-backs, as calculated by CJ,
shall be final and binding on You.
(f) Dormant Accounts. If Publisher's Account has not
been credited with a valid, compensable Transaction that has not been
Charged-back during any rolling, six consecutive calendar month period
(“Dormant Account”), a dormant account fee at CJ's then-current rate
shall be applied to Publisher's Account each calendar month that
Publisher's Account remains an open yet Dormant Account or until Your
Account balance reaches a zero balance, at which time the Account shall
become deactivated. Transactions will not be counted if the Transaction
subsequently becomes a Charge-back.
(g) Negative Accounts. You may have a negative balance
if Your Account is debited amounts equivalent to previous Payouts for
Charge-backs and You do not have an adequate Account balance to cover
the Charge-back amounts. When You have a negative balance, You must
immediately remit payment to CJ in an amount sufficient to bring Your
Account to a zero balance, or Your Account is subject to 1.5% interest
per month, compounded monthly.
4. Proprietary Rights.
(a) Linking to Advertisers. For each Advertiser's
Program that You have been accepted to, the Advertiser is granting to
You the right to display and Link to the Advertiser's Web site or Web
site content in accordance with the Advertiser's Program terms for the
limited purposes of Promoting the Advertiser's Program, subject to the
terms and conditions of this Agreement. Your use of the Link signifies
Your agreement to refrain from copying or modifying any icons, buttons,
banners, graphics files or content contained in the Link, including but
not limited to refraining from removing or altering any copyright or
trademark notices. As between CJ and Publisher, CJ owns all rights in
and to all information regarding the Visitors that You refer to
Advertisers through CJ.
(b) CJ's Use of Your Marks. You authorize CJ to
utilize Your trademarks, service marks, tradenames, and/or copyrighted
material that You provide to CJ through Your Account to promote Your
participation in the Network Services.
(c) Your Use of CJ's Proprietary Rights. You agree
that Your use of any CJ Web site (such as www.cj.com) and Your use of
any CJ trademarks, service marks, tradenames, and/or URLs is subject to
the license and terms of use that are available from such Web site
("Terms of Use"). You explicitly agree not to adopt or use in any manner
any trademarks, service marks, tradenames, and/or URLs that are the
same or confusingly similar to, or are combined with, those of CJ.
(d) Retention of Rights. All proprietary rights of
Advertisers, You, and CJ, and all goodwill arising as a result of such
rights, inure to the benefit of such owner.
(e) No Challenge to CJ's/Advertiser's Proprietary Rights. You acknowledge that You obtain no proprietary rights in CJ's
trademarks, service marks, tradenames, URLs, copyrighted material,
patents, and patent applications, and agree not to challenge CJ's
proprietary rights. You acknowledge that You obtain no proprietary
rights in Your Advertisers' proprietary rights, and agree not to
challenge such Advertiser's proprietary rights.
(f) Data Ownership. You understand that all personally
identifiable information, if any, provided by Visitors through the
Tracking Code or in response to an advertisement or request for
information and/or any or all reports, results, and/or information
created, compiled, analyzed and/or derived by CJ from such data is the
sole and exclusive property of Advertiser and CJ and is considered CJ's
Confidential Information pursuant to this Agreement. CJ and/or its
Advertisers, in their sole discretion, shall have the right to use,
market and re-market any Visitors and/or data without further obligation
to You. You shall not make any use of, copy, make derivative works
from, sell, transfer, lease, assign, redistribute, disclose,
disseminate, or otherwise make available in any manner, such data or
Visitors, or any portion thereof, to any third-party.
5. Confidentiality.
(a) Obligations. You or CJ 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"). The receiving party agrees to make
commercially reasonable efforts, but in no case no less effort than it
uses to protect its own Confidential Information, to maintain the
confidentiality of and to protect any proprietary interests of the
disclosing party. Confidential Information shall not include (even if
designated by a party) information: (i) that is or becomes part of the
public domain through no act or omission of the receiving party; (ii)
that is lawfully received by the receiving party from a third party
without restriction on use or disclosure and without breach of this
Agreement or any other agreement without knowledge by the receiving
party of any breach of fiduciary duty, or (iii) that the receiving party
had in its possession prior to the date of this Agreement. Upon
termination of this Agreement, You must destroy or return to CJ any
Confidential Information provided by CJ to You under this Agreement.
(b) Provision of Info to Advertisers/Third Parties.
You agree that CJ may, but is not obligated to, provide Your email
address(es) and basic Publisher Account detail (including but not
limited to Your address, phone and fax number, Web site name, the date
the website or subscription email first entered into operation, and
visitor demographics) to Advertisers. CJ may provide any and all
Visitor, Transaction and/or Tracking Code data to the Advertiser to
which You referred such Visitor, and to any third party in CJ's sole
discretion, including but not limited to all regulatory, legislative and
judicial bodies, and pursuant to allegations and claims of proprietary
rights infringement.
6. Term, Termination, Deactivation and Notices.
(a) Term. This Agreement shall commence upon Your
indication that You have accepted this Agreement by providing the
required information and ‘clicking through' the acceptance button on the
CJ Web site and shall continue until terminated in accordance with the
terms of this Agreement. This Agreement may be terminated by either
party upon 15 days notice. This Agreement may be terminated immediately
upon notice for Your breach of this Agreement. Your Account may be
deactivated and/or Payouts may be withheld during investigation of
breach of this Agreement. If this Agreement is terminated based upon
Your breach, You shall not be eligible to enter into a new click-through
Publisher Service Agreement with CJ, and any attempt to do so shall be
null and void.
(b) Termination by Advertiser. An Advertiser may
terminate You, one of Your Web sites, or Your ability to use a
promotional method, from the Advertiser's Program for any or no reason,
upon 7 days written notice with effect from the 8th day. Additionally,
Advertiser may terminate You from the Advertiser's Program for breach
of a third party's proprietary rights, and/or diluting, tarnishing or
blurring an Advertiser's trademarks, tradenames, and/or service marks,
or for Your material breach of the Advertiser's Program terms or of this
Agreement.
(c) Termination or Deactivation by CJ. CJ may
terminate You, one of Your Web sites, or Your use of a promotional
method, from an Advertiser's Program, at any time in CJ's sole
discretion. Breach of any Section of this Agreement is cause for
immediate termination from an Advertiser's Program and/or termination of
this Agreement, and may result in Chargeback of one or more Payouts.
CJ may temporarily deactivate or terminate Your Account if: (i) You or
Your agent are responsible for the improper functioning of Ad Content,
or if You otherwise interfere with and/or fail to maintain the Tracking
Code; (ii) Your Account has not been logged into and/or there have
been no Transactions credited to Your Account for any 30 day period;
(iii) You maintain a negative balance in Your Account; (iv) CJ
determines You are diluting, tarnishing or blurring CJ's proprietary
rights; (v) You begin proceedings to challenge CJ's proprietary rights;
or (vi) a third party (including a CJ Advertiser) disputes Your right
to use any Link, domain name, trademark, service mark, trade dress, or
right to offer any service or good offered on Your Web site, or through
any of Your promotional means. Upon termination of this Agreement, or
in case of deactivation of Your Account, You shall no longer accrue
Payouts in Your Account, including but not limited to subsequent sales
and/or Leads for click-throughs that occurred prior to termination.
(d) Termination of Programs and Offers. Programs and Offers may be discontinued at any time.
(e) Notices. Except as provided elsewhere herein, both
parties must send all notices relating to this Agreement to: (i) for
CJ, via registered mail, return receipt requested or via an
internationally recognized express mail carrier to Commission Junction,
Inc., Attn: Legal Dept., 530 East Montecito Street, Santa Barbara, CA
93103 USA (effective upon actual receipt); and, (ii) for You, at the
email or physical address listed on Your Account (effective upon sending
as long as CJ does not receive an error message regarding delivery of
the email) or five (5) days after mailing).
(f) Post-termination. Upon termination of this
Agreement, any outstanding payments shall be paid by CJ to You within 90
days of the termination date, and any outstanding debit balance shall
be paid by You to CJ within 30 days of termination of this Agreement.
All payments are subject to recovery for Charge-backs. Upon termination
of this Agreement, any permissions granted under this Agreement will
terminate, and You must immediately remove all Links to Advertiser(s).
Provisions of this Agreement that by their nature and context are
intended to survive the termination of this Agreement shall survive the
termination of this Agreement to the extent that and as long as is
necessary to preserve a party's rights under this Agreement that accrued
prior to termination.
7. Representations, Warranties, Disclaimers and Limitations.
(a) Business Operations. Each party will make
reasonable commercial efforts to keep its Web site operational during
normal business hours. However, the parties agree that it is normal to
have a certain amount of system downtime and agree not to hold each
other or Your Advertisers liable for any of the consequences of such
interruptions. CJ may modify the Network Service, or discontinue
providing the Network Service, or any portion thereof, at any time.
(b) Authority. Each party represents and warrants to
the other party as to itself that the person executing this Agreement is
authorized to do so on such party's behalf. IF YOU ARE AN INDIVIDUAL,
YOU REPRESENT AND WARRANT THAT YOU WERE AT LEAST 18 YEARS OF AGE ON THE
EFFECTIVE DATE OF THIS AGREEMENT.
(c) Non-infringement Warranties. You represent and
warrant that: (i) You have all appropriate authority to operate, and to
any and all content on, Your Web site(s); (ii) You have all appropriate
authority in any promotional method you may choose to use; (iii) Your
Web site(s) and Your promotional methods do not and will not infringe a
third party's, a CJ Advertiser's, or CJ's, proprietary rights; and
(iv) You shall remain solely responsible for any and all Web sites
owned and/or operated by You and all of Your promotional methods. CJ
may or may not review all content on Your Web site or used by You in
Your promotional methods.
(d) Compliance with Laws. You are responsible for
compliance with the requirements of all relevant legislation (including
subordinate legislation and the rules of statutorily recognized
regulatory authorities) in force or applicable in the United States or
in any other applicable territory, and warrant that no promotion method
used by You or the content of Your Web site(s) will render CJ liable to
any proceedings whatsoever.
(e) Limitation of Liabilities. ANY OBLIGATION OR
LIABILITY OF CJ UNDER THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL OF
YOUR PAYOUTS PAID TO YOU BY CJ UNDER THIS AGREEMENT DURING THE YEAR
PRECEDING THE CLAIM. NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT
AGAINST THE OTHER PARTY TO THIS AGREEMENT MORE THAN ONE YEAR AFTER THE
TERMINATION OF THIS AGREEMENT. YOU AGREE THAT CJ SHALL NOT BE LIABLE TO
YOU, OR ANY THIRD PARTY (INCLUDING BUT NOT LIMITED TO A CLAIM BY
ANOTHER PUBLISHER OR AN ADVERTISER OF THE NETWORK SERVICE), FOR ANY
CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES,
INCLUDING, BUT NOT LIMITED TO, LOSS OF GOODWILL, LOST PROFITS, BUSINESS
INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA, EVEN IF ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES OR CLAIM.
(f) Disclaimer of Warranties. TO THE FULLEST EXTENT
PERMISSIBLE PURSUANT TO APPLICABLE LAW, CJ DISCLAIMS ALL WARRANTIES
IMPLIED, INCLUDING, BUT NOT LIMITED TO, (A) MERCHANTABILITY, FITNESS FOR
A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, (B)
THAT THERE ARE NO VIRUSES OR OTHER HARMFUL COMPONENTS, (C) THAT CJ'S
SECURITY METHODS WILL BE SUFFICIENT, (D) REGARDING CORRECTNESS,
ACCURACY, OR RELIABILITY, OR (D) AGAINST INTERFERENCE WITH ENJOYMENT OF
THE PUBLISHER'S INFORMATION OR WEB SITE. ALL 'INFORMATION' AND
'COMPUTER PROGRAMS' PROVIDED TO YOU IN THE COURSE OF THIS AGREEMENT ARE
PROVIDED WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY
QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. CJ IS, UNDER NO
CIRCUMSTANCES, RESPONSIBLE FOR THE PRACTICES, ACTS OR OMISSIONS OF ANY
ADVERTISER OR PUBLISHER, OR SUCH ADVERTISER OR PUBLISHER'S WEB
SITE(S), AND/OR THE CONTENT OF AN ADVERTISER'S WEB SITE OR THAT AN
ADVERTISER MAKES AVAILABLE THROUGH THE NETWORK SERVICE.
(g) Remedies. No remedy or election shall be deemed
exclusive but shall, wherever possible, be cumulative with all other
remedies at law or in equity.
(h) Benefit of the Bargain. THE PROVISIONS OF THIS SECTION 7 ARE AN ESSENTIAL ELEMENT OF THE BENEFIT OF THE BARGAIN REFLECTED IN THIS AGREEMENT.
8. Publisher's Indemnification Obligations. Publisher shall defend, indemnify and hold CJ and Advertisers harmless
against all claims, suits, demands, damages, liabilities, losses,
penalties, interest, settlements and judgments, costs and expenses
(including attorneys' fees) incurred, claimed or sustained by third
parties, including but not limited to Advertisers, directly or
indirectly as a result of (a) Publisher's breach of or non-compliance
with this Agreement, (b) Publisher's violation of any law, or an
alleged violation of law by CJ, that is a direct or indirect result of
Publisher's use of the Network Service, (c) Publisher's use of the
Network Service, (d) Publisher's participation in any Program, (e) any
content, goods or services offered, sold or otherwise made available by
Publisher to any person, (f) Publisher's acts or omissions in using,
displaying or distributing any internet links obtained from the Network
Service or elsewhere, including but not limited to Publisher's use of
internet links via email distribution, (g) any claim that CJ is
obligated to pay tax obligations in connection with payment made to
Publisher pursuant to this Agreement and/or any Advertiser's Program,
and (h) any violation or alleged violation by Publisher of any rights
of another, including breach of a person's or entity's intellectual
property rights (each (a)-(h) individually is referred to hereinafter
as a "Claim"). Should any Claim give rise to a duty of indemnification
under this Section 8, CJ shall promptly notify Publisher, and CJ shall
be entitled, at its own expense, and upon reasonable notice to
Publisher, to participate in the defense of such Claim. Participation
in the defense shall not waive or reduce any of Publisher's obligations
to indemnify or hold CJ harmless. Publisher shall not settle any Claim
without CJs prior written consent. Publisher also shall indemnify for
any reasonable attorneys' fees or other costs incurred by an
indemnified party in investigating or enforcing this Section 8. In the
context of this Section 8 only, the term “CJ” shall include officers,
directors, employees, corporate affiliates, subsidiaries, agents, and
subcontractors.
9. Miscellaneous.
(a) Headings and References. Headings of Sections are
for the convenience of reference only. Words indicated in quotes and
capitalized signify an abbreviation or defined term for indicated words
or terms, including those definitions contained in the opening
paragraph.
(b) Third Party Disputes. In the event of a third
party claim against either: (a) CJ's intellectual property; or (b)
against CJ's right to offer any service or good on CJ's Web site(s) or
if, in CJ's opinion, such a claim is likely, CJ shall have the right, at
its sole option and in its sole discretion, to (i) secure the right at
CJ's expense to continue using the intellectual property or good or
service; or (ii) at CJ's expense replace or modify the same to make it
non-infringing or without misappropriation.
(c) Relationships of Parties/Third Party Rights. The
relationships of the parties to this Agreement shall be solely that of
independent contractors, and nothing contained in this Agreement shall
be construed otherwise. Nothing in this Agreement or in the business or
dealings between the parties shall be construed to make them joint
venturers or partners with each other. Neither party shall do anything
to suggest to third parties that the relationship between the parties is
anything other than that of independent contractor. You agree that
Your consent is not necessary to modify any Advertiser Service
Agreement.
(d) Choice of Law/Attorneys' Fees. This Agreement is
governed by the laws of the State of California (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 Los Angeles,
California. The parties consent to such venue and jurisdiction and
waive any right to a trial by jury. 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. CJ controls and operates its Web
site from its offices in the USA and access or use where illegal is
prohibited.
(e) 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.
(f) Severability/Waiver. If any provision of this
Agreement is held by any court of competent jurisdiction to be illegal,
null or void or against public policy, the remaining provisions of this
Agreement shall remain in full force and effect. The parties shall in
good faith attempt to modify any invalidated provision to carry out the
stated intentions in this Agreement. The waiver of any breach of any
provision under this Agreement by any party shall not be deemed to be a
waiver of any preceding or subsequent breach, nor shall any waiver
constitute a continuing waiver.
(g) Assignment and Acknowledgement. Neither party may
assign this Agreement without the prior express written permission of
the other party. Notwithstanding the foregoing, Your consent shall not
be required for assignment or transfer made by CJ (1) due to operation
of law, or (2) to an entity that acquires substantially all of CJ's
stock, assets or business, or (3) to a related entity (e.g. parent or
subsidiary of parent). Your use of the Network Service is irrefutable
acknowledgement by You that You have read, understood and agreed to each
and every term and provision of this Agreement. CJ may establish from
time to time rules and regulations regarding use of the Network Service
as published on the Network Service and incorporated herein.
(h) Marketing. Publisher agrees that CJ may identify
it as a CJ Publisher in client lists and may use Publisher's name and/or
logo solely for such purpose in its marketing materials. Any other
uses of Publisher's name and/or logo not otherwise described or
contemplated herein shall require Publisher's prior written consent.
(i) Tax Status and Obligations. CJ is not obligated to
and shall not provide You with tax and/or legal advice. CJ undertakes
no duty to investigate or research Your tax status and/or obligations,
and such research and investigation is solely Your responsibility. You
are obligated to independently assess and comply with all relevant tax
and legal requirements, and Advertiser is responsible for its own sales
tax collection and reporting obligations arising from sales made to
Visitors. If CJ provides You with information regarding a particular
Advertiser or Publisher, the information shall not be deemed tax or
legal advice, and CJ shall not be responsible for the accuracy of such
information. Any Publisher or Advertiser addresses provided to You are
addresses provided by the relevant Advertiser or Publisher, and such
addresses may not necessarily indicate the location or presence of the
Publisher or Advertiser in such location or elsewhere.
(j) Entire Agreement, Assignment and Amendment. This
Agreement, including the Introduction, contains the entire understanding
and agreement of the parties and there have been no promises,
representations, agreements, warranties or undertakings by either of the
parties, either oral or written, except as stated in this Agreement.
This Agreement may only be altered, amended or modified by an instrument
that is assented to by each party to this Agreement by verifiable
means, including without limitation by written instrument signed by the
parties or through a "click through" acknowledgement of assent. No
interlineations to this Agreement shall be binding unless initialed by
both parties. Notwithstanding the foregoing, CJ shall have the right to
change, modify or amend ("Change") this Agreement, in whole or in part,
by posting a revised Agreement at least 14 days prior to the effective
date of such Change. Your continued use of the Network Service after
the effective date of such Change shall be deemed Your acceptance of
the revised Agreement.
IF YOU ARE AN INDIVIDUAL, YOU
REPRESENT AND WARRANT THAT YOU WERE AT LEAST 18 YEARS OF AGE ON THE
EFFECTIVE DATE OF THIS AGREEMENT.
Contact Information:
Date Posted: June 17, 2011