Affiliate Publisher Terms of Service
The website publisher wishing to participate in the widget distribution network ("Publisher") provided by Clearspring Technologies, Inc. ("Clearspring") agrees to the following terms and conditions by which Publisher may enter the Clearspring widget distribution network ("Network") and market widgets on behalf of Clearspring third party customers ("Advertisers"). Publisher agrees as follows:
1. Definitions
"Embed" means when an end user initiates the viral sharing tools on a Widget on Publisher's Website and successfully embeds the Widget onto the selected third-party social network, blog, start page, or other available platform.
"Network Code" means the ad serving tags or other code that facilitates the display of Widgets on the Website, including tracking pixels, and any other intellectual property of Clearspring or third-parties made available to Publisher in connection with its performance under these Terms of Service.
"Widget" means third-party content, data, images, photos, videos, rich-media, and other software, including copyright protected intellectual property (collectively "Content"), that utilizes Clearspring's widget services to allow such Content to be virally shared to third party websites and/or platforms.
2. Widget Distribution Network
(a) Membership. Membership in the Network is subject to prior approval by Clearspring. Clearspring reserves the right to refuse service to any new or existing Publisher for any reason, in its sole discretion. Approval of membership in the Network is limited only to the domains and/or specific root URLs for which Publisher has applied for approval by Clearspring ("Website"). Clearspring reserves the right, in its sole discretion and without liability, to reject, omit or exclude any Publisher, or Website for any reason at any time with or without notice to the Publisher and regardless of whether such Publisher or Website was previously accepted. These Terms of Service is voidable by Clearspring immediately if Publisher fails to disclose, conceals or misrepresents itself in any way.
(b) Services. Publisher understands and agrees that from time to time Widgets, Network Code, and or other Clearspring services hereunder may be inaccessible, unavailable or inoperable for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which Clearspring may undertake from time to time; or (iii) causes beyond the control of Clearspring or which are not reasonably foreseeable by Clearspring, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks, the unavailability, operation, or inaccessibility of interfaces, network congestion or other failures. While Clearspring will attempt to provide the services on a continuous basis, Publisher acknowledges and agrees that Clearspring has no control over the availability of the Widgets or Network Code on a continuous or uninterrupted basis. Publisher also understands and agrees that Clearspring is not responsible for the functionality of any third-party Widgets, websites or interfaces. Failure to deliver because of technical difficulties does not represent a failure to meet the obligations of these Terms of Service. Clearspring reserves the right to discontinue offering any of the Network Code and other Clearspring services at any time. Except as otherwise specified by Clearspring, Publisher agrees that it will direct all communications relating to any Widget directly to Clearspring and not to any other entity.
3. Prohibited Conduct
(a) Prohibited Conduct. Clearspring does not accept Websites that produce, relate to or have characteristics of Prohibited Conduct. "Prohibited Conduct" is defined as:
(i). Widget Placement & Tracking. Publisher shall not: (1) use robots, spiders, auto-spawning browsers, auto reloading or any other method of generating artificial or fraudulent impressions; (2) intentionally place Widgets on blank web pages or on web pages with no content; (3) place Widgets on non-approved Websites or web pages, or in such a fashion that may be deceptive to end users; (4) use invisible methods to generate impressions, clicks, or transactions that are not initiated by the affirmative action of the end-user; or (5) attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the Network Code, Widget, tags, source codes, links, pixels, modules or other data provided by or obtained from Clearspring that allows Clearspring to measure Widget performance and provide its service.
(ii). Websites. Publisher shall not place any Widgets or Network Code on Websites that contain, promote, reference or have links to: (1) 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 Clearspring or Advertisers; (2) software piracy (warez, cracking, etc.), hacking, phreaking, emulators, or ROM's; (3) illegal activities, deceptive practices or violations of the intellectual property or privacy rights of others; (4) websites hosted by a free service, 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, 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; or (vi) other similar activities that are prohibited by applicable law.
4. Widget Content and Placement
(a) Compliance with Industry Standards. Publisher agrees to undertake under these terms as specified by Clearspring, including all Widget placement restrictions or channels specified, in accordance with the highest industry standards. Publisher shall position the Network Code in such a manner to assure that Widgets are fully and clearly visible to consumers.
(b) No Modifications to Widgets or Network Code. Publisher may not alter, copy, modify, take, sell, re-use, or divulge in any manner any Widget or Network Code provided by Clearspring without Clearspring's prior written consent. Any Widget, Content, or Network Code which is copied, changed or altered without prior written consent will result in non-payment for the campaign and may result in termination and enforcement of other remedies by Clearspring and/or Advertiser.
(c) Requirements. Publisher shall be solely responsible for (i) placing the Network Code on the Website, which placement shall be subject to the terms and conditions of these Terms of Service. The Network Code may only be placed on approved Websites. Unless otherwise agreed to by Clearspring and Publisher, the Network Code must be placed on the Website to display the Widget within 300x250 pixels on the top of the Website (above the page scroll/fold) and allow for the Widget to expand (if needed) based on end user interaction with such Widget.
(d) Default Widgets. Publisher acknowledges and agrees that Clearspring may not be able to fill 100% of advertising requests sent to its servers with paying Widgets. Clearspring may provide redirect tags to an advertising network or display so-called 'house' Widgets on Publisher's Website when paid Widgets are unavailable. Clearspring may also display so-called 'house' Widgets on the Websites when technical difficulties require it. So-called 'house' Widgets are not paid Widgets. Under no circumstances does Clearspring guarantee to provide any percent fill of paid Widgets to a Website.
5. Network Quality
Clearspring 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 these Terms of Service. Clearspring employs individuals for the express purpose of monitoring the Websites within our network to ensure that our customers and clients are receiving the highest quality campaigns. Publishers that commit fraudulent activities, including false clicks, false impressions, etc., will have their account permanently removed from the Network and will not be compensated for fraudulent traffic. All Widgets must be served from a Clearspring server or serving location, or through a Clearspring approved 3rd-party-hosted server.
6. Proprietary Rights
(a) Licenses. Provided that Publisher complies with all provisions of these Terms of Service, Clearspring hereby grants to Publisher a nonexclusive, limited, revocable license to use, execute, and display the Widgets and Network Code solely for purposes of performing its other obligations hereunder. Except for the limited license expressly granted in this section, nothing in these Terms of Service shall be construed as Clearspring granting Publisher any right, title or interest in Content, Widgets, or Network Code. Publisher acknowledges and agrees that, except for third-party Content, Clearspring owns all right, title and interest in and to the Network Code and Widgets and all related intellectual and proprietary rights of any kind anywhere in the world. Publisher's use of the Network Code and Widgets, or the results created thereby, or disseminating or distributing any of this information except as expressly permitted by these Terms of Service 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 Clearspring 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, content, 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 these Terms of Service, 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 end users in response to an Widget and/or any or all reports, results, and/or information created, compiled, analyzed and/or derived by Clearspring from such data is the sole and exclusive property of Advertiser and/or Clearspring and is considered Confidential Information pursuant to these Terms of Service. Clearspring and/or its Advertisers, in their sole discretion, shall have the right to market and re-market the end user(s) and or data without further obligation to Publisher. Publisher 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 information, or any portion thereof, to any third-party.
7. Representations and Warranties
(a) Publisher Warranties. Publisher represents, warrants, covenants and acknowledges that (i) it will provide and maintain the resources, personnel and facilities suitable to perform its obligations under these Terms of Service; (ii) it will comply with all applicable federal, state and local laws and regulations including, without limitation, laws relating to advertising, the Internet, privacy and unfair business practices; (iii) it will not engage in Prohibited Conduct; (iv) it will comply with Clearspring's Privacy Policy located at http://www.clearspring.com/legal as amended from time to time; (v) that Publisher is at least 18 years of age on the effective date of these Terms of Service; and (vi) that Clearspring does not make any specific or implied promises as to the successful outcome of any campaigns.
(b) 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 these Terms of Service; (ii) neither the execution, delivery, nor performance of these Terms of Service 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 these Terms of Service.
8. Privacy
(a) Obligations. Internet consumer privacy is of paramount importance to Clearspring, its subsidiaries, and its customers. Clearspring 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 these Terms of Service.
(b) Privacy Requirements. Publisher must clearly post on its Website an easy to understand privacy policy that (i) is in compliance with all relevant FTC guidelines and any other applicable laws, rules and regulations with respect to online privacy; and (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.
(c) Cookies. Publisher acknowledges that Clearspring uses cookies with Widgets in accordance with its Terms of Services located at http://www.clearspring.com/legal. Publisher agrees to take such steps as may be commercially reasonable and appropriate to promote user awareness about cookies or similar devices as may be identified by Clearspring.
9. Payment
(a) Payment. Publishers will typically be paid within thirty (30) business days after the end-of-month. Do not invoice Clearspring; all Publisher invoices are discarded. Publishers will be paid at the account level. Clearspring will pay Publisher based on monies actually collected by Clearspring from Advertisers running campaigns on Publisher's Website. All accounts will be settled in US dollars ($US). No check will be issued for any amount less than $50 U.S. ("Minimum Payment Threshold"). All unpaid earnings will rollover to the next pay period. Any Publisher account that goes unpaid for six (6) months becomes subject to immediate payoff and dismissal from the Network. As a condition to Clearspring's obligation to make payments hereunder to Publisher, Publisher must have on file with Clearspring a completed and accurate W-9 (for U.S. based Publisher's) or a completed and accurate W-8 (for non-U.S. based Publisher's). Publisher payments will be withheld until the appropriate taxation documents are received by Clearspring. All payments are based on actuals as defined, accounted and audited by Clearspring. Clearspring reserves the absolute right to withhold payment from accounts or Publishers that violate any of the terms and conditions set forth herein. Clearspring will determine, in its sole discretion, whether acts or omissions are deceptive, fraudulent or violate these Terms of Service.
(b) Breach or Fraud. If any Publisher violates or refuses to fulfill its responsibilities, or commits fraudulent activity, Clearspring reserves the right to withhold payment and take appropriate legal action.
(c) Calculation. Calculation of Publisher earnings, including impressions, embeds and click through numbers, shall be in Clearspring's sole discretion. In the event Publisher disagrees with any such calculation, Publisher shall immediately send a written request to Clearspring detailing, with specificity, Publisher's concerns. Thereafter, Clearspring will provide Publisher with an explanation or, if such calculations are determined by Clearspring to be incorrect, an adjustment. Clearspring's calculations shall be final and binding. In the event no adjustment is necessary, Publisher shall reimburse Clearspring for its expenses in responding to Publisher's requests under this section.
10. Indemnity
Publisher is solely responsible for any legal liability arising out of or relating to (i) Publisher's Website(s), (ii) any material to which end users can link through the 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 Clearspring and its officers, directors, employees, agents, shareholders, partners, affiliates, representatives, agents and Advertisers (collectively "Clearspring Parties") harmless from and against any and all allegations, claims, actions, causes of action, lawsuits, damages, liabilities, obligations, costs and expenses (including without limitation reasonable attorneys' fees, costs related to in-house counsel time, court costs and witness fees) (collectively "Losses") incurred by, or imposed or asserted against, the Clearspring Parties which, if true, would constitute or relate to any claims, suits, or proceedings for (a) libel, defamation, violation of rights of privacy or publicity, copyright infringement, trademark infringement or other infringement of any third-party right, fraud, false advertising, misrepresentation, product liability or violation of any law, statute, ordinance, rule or regulation throughout the world in connection with the Website(s); (b) any breach by Publisher of any duty, representation or warranty under these Terms of Service; (c) any breach by Clearspring of any duty, representation, or warranty to provide Widget(s) for placement on the Website(s) due to any breach by Publisher of these Terms of Service; (d) a contaminated file, virus, worm, or Trojan horse originating from the Website(s); or (e) gross negligence or willful misconduct by Publisher.
11. Limitations of Warranties and Liability
(a) Disclaimer of Warranties. ALL SERVICES PROVIDED BY THE CLEARSPRING ARE PROVIDED ON AN "AS IS" "AS AVAILABLE" BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, CLEARSPRING MAKES NO WARRANTIES, GUARANTEES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS, OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN, OR OTHERWISE EXCEPT AS EXPRESSLY SET FORTH HEREIN. CLEARSPRING IS NOT RESPONSIBLE FOR DELAYS CAUSED BY ACCIDENT, WAR, ACT OF GOD, EMBARGO, COMPUTER SYSTEM FAILURE, OR ANY OTHER CIRCUMSTANCE BEYOND ITS CONTROL.
(b) Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL CLEARSPRING BE LIABLE TO PUBLISHER FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF CLEARSPRING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM ANY ASPECT OF THE ADVERTISING RELATIONSHIP PROVIDED HEREIN. IN NO EVENT SHALL CLEARSPRING'S TOTAL OBLIGATIONS OR LIABILITY HEREUNDER EXCEED THE LESSER OF THE SPECIFIC ADVERTISING CAMPAIGN IN QUESTION OR FIVE THOUSDAND DOLLARS ($5,000.00). REGARDLESS OF ANY LAW TO THE CONTRARY, NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST CLEARSPRING MORE THAN ONE (1) YEAR AFTER THE DATE UPON WHICH THE CLAIM AROSE.
(c) Consideration. PUBLISHER ACKNOWLEDGES THAT CLEARSPRING 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.
12. Term and Termination
(a) Termination. These Terms of Service, as may be amended, applies to Publisher for as long as Publisher distributes Widgets for Clearspring. Clearspring reserves the right to terminate any Publisher from the Network at any time, with or without cause.
(b) Post-termination. Upon termination, Publisher agrees to immediately remove from the Websites any and all Network Code and Widgets supplied to Publisher by Clearspring. 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.
Confidentiality
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"). Clearspring's campaign rates are considered confidential. Each party may use Confidential Information received from the other party only in connection with and to further the purposes of these Terms of Service. Confidential Information shall not be commingled with information or materials of others and any copies shall be strictly controlled. 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 these Terms of Service 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 these Terms of Service. Upon termination of these Terms of Service, or upon written request by Clearspring, Publisher must destroy or return to Clearspring any Confidential Information provided by Clearspring.
15. Entire Agreement and Modification
These Terms of Service including the Clearspring privacy policy (as amended from time to time and which is incorporated herein by reference), contain 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 these Terms of Service. These Terms of Service may only be altered, amended or modified by a written instrument signed by both parties, and the terms of such written instrument will prevail over these Terms of Service. Notwithstanding the foregoing, Clearspring shall have the right to change, modify or amend ("Change") these Terms of Service, in whole or in part, by posting a revised Terms of Service at least five (5) days prior to the effective date of such Change. Publisher's continued use of the Network after the effective date of such Change shall be deemed Publisher's acceptance of the revised Terms of Service. No change, amendment, or modification of any provision of these Terms of Service by Publisher will be valid unless set forth in a written instrument signed by an executive of both Parties with the corporate authority to do so.
16. Notice
Except as provided elsewhere herein, both parties must send all notices relating to these Terms of Service to: (i) for Clearspring, via registered mail, return receipt requested or via an internationally recognized express mail carrier to: Clearspring Technologies, Inc, 8000 Westpark Dr., Suite 625, McLean, VA 22102, Attn: General Counsel (effective upon actual receipt); and, (ii) for Publisher at the email or physical address listed on your account (effective upon sending as long as Clearspring does not receive an error message regarding delivery of the email) or five (5) days after mailing).
17. Assignment
No rights or obligations under these Terms of Service may be assigned by Publisher without the prior written consent of Clearspring. Any assignment, transfer or attempted assignment or transfer in violation of this section shall be void and of no force and effect.
18. 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 party's prior written consent.
19. Marketing
Publisher shall not release any information regarding Widgets or Publishers relationship with Clearspring or its customers, including, without limitation, in press releases or promotional or merchandising materials, without the prior written consent of Clearspring. Clearspring shall have the right to reference and refer to its work for, and relationship with, Publisher for marketing and promotional purposes.
20. 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.
21. Survival and Severability
Any obligation which expressly or by their nature are to continue after termination, cancellation, or expiration of these Terms of Service shall survive and remain in effect after such happening. Each party acknowledges that the provisions of these Terms of Service reflect an informed, voluntary allocation 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 these Terms of Service conflicts with the law under which these Terms of Service is to be construed or if any such provision is held invalid or unenforceable by a court with jurisdiction over the parties to these Terms of Service, 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 these Terms of Service will remain in full force and effect.
22. Remedies and Waiver
Except as otherwise specified, the rights and remedies granted to a party under these Terms of Service 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 party's 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.
ADDENDUM FOR U.K. ADVERTISING
This Addendum for advertising in the U.K. is hereby incorporated into and supplements any and all agreements and Terms of Services between Publisher and Clearspring. In the event of any inconsistency between this Addendum and the aforementioned documents, this Addendum shall control.
Pursuant to the Internet Advertising Sales House ("IASH") Code of Conduct v. 7.2, advertisements may only be placed on sites meeting the following conditions and Publisher shall ensure that Publisher and/or such sites, as applicable, comply with the following conditions:
- Publisher either owns or is entitled to use the content displayed on all URLs on which activity is running;
- The Website does not knowingly include any 'virus' or other destructive programming or device that could impair or injure any data, computer system or software;
- The Website does not knowingly violate any applicable laws or regulations, including without limitation, false or deceptive or comparative advertising laws, gaming and gambling laws, competition laws, and criminal laws;
- The Website does not knowingly contain content originated by or on behalf of the Publisher that is defamatory, violates any rights of privacy or publicity or constitutes a misrepresentation;
- The content of the Website originated by or on behalf of the Publisher does not and will not knowingly infringe any Intellectual Property Rights or other proprietary rights;
- Publisher and the Website do not knowingly engage in, promote or facilitate activities such as pirating, hacking or any other activities which are illegal under U.K. law.
- In respect of unlawful activity or content contributed to the site without the Publisher's knowledge or awareness of its unlawfulness, the Publisher operates a "notice and takedown" policy that complies with applicable law (currently the Electronic Commerce (EC Directive) Regulations 2002).
- Publisher will use all reasonable endeavors not to include on the Website those types of content forbidden by the IASH Code of Conduct. See the definitions of 'barred inventory' in Schedule C of the IASH Code of Conduct (www.iash.org.uk).
- Publisher will use all reasonable endeavors not to place advertisements having content or using means addressed by Schedule D of the IASH Code of Conduct (www.iash.org.uk) without Clearspring's prior written consent.
- Publisher will use reasonable endeavors to comply with such additional restrictions as may be set forth in any amendments to the IASH Code of Conduct.
Last modified: February 11, 2008