Adify: Terms & Conditions for Publishers and Advertisers
Version 2.1 - August 2007

These Terms and Conditions address Adify's direct relationship with Publishers and Advertisers. If you are a member of a third-party network utilizing the Adify platform, then you may be subject to additional terms and conditions with respect to such network. Moreover, these Term & Conditions do not apply to Network Operators. Your contract contains a separate set of terms and conditions.

Overview

Welcome to the Adify online advertising sale and management service (the "Service"). An Advertiser places a text, image or rich media advertisement ("Advertisement") via the Service into an Ad Space that is displayed on one or more Web Sites ("Site(s)"). This Ad Space is managed by the web site publisher (the "Publisher"). The Service runs on software developed and hosted by Adify Corporation (1000 Cherry Avenue, Suite 200 San Bruno, CA 94066 USA), its subsidiaries, third party contractors and licensees ("Service Provider"). Advertisements are viewed by individuals ("Viewers"), who access Advertisements via the World Wide Web.

The Service enables a Publisher and an Advertiser to create, execute, and manage online advertising transactions. Service Provider is not involved in the actual transaction between an Advertiser and a Publisher, is not the agent of, and has no authority for or control over either party for any purpose. Any Publisher who uses the Service to sell and/or manage Advertisements, and any Advertiser who uses the Service to buy and/or manage Advertisements must accept the Terms and Conditions of this Agreement in full. By registering for and using the Service, you agree to be bound by all terms and conditions of this Agreement, and all policies and guidelines of the Service are incorporated herein by reference.

Service Provider reserves the right to change any of the terms and conditions contained in this Agreement or any policies or guidelines governing the Service, at any time and in its sole and absolute discretion. Any changes will be effective upon posting of the revisions at Terms and Conditions. You are responsible for reviewing any applicable changes. Changes may be posted without notice to you. Your continued use of the Service following Service Provider's posting of any changes will constitute your acceptance of such changes or modifications. At any time upon request by Service Provider, you agree to sign a non-electronic version of this Agreement. If you do not agree to any changes to this Agreement, you must terminate this Agreement persuant to section 5.3.

Detailed Publisher and Advertiser Guidelines and FAQs (the "Guidelines") cover the specific use of the Service, and can be found at Guidelines and FAQs. The Guidelines, as they may be modified from time to time, are incorporated herein by reference, and have the same force and effect as if they were fully part of this Agreement.

1. General Terms - Publisher

1.1 Your relationship to Service Provider is one of an independent contractor and/or customer. No employer-employee, agency, joint venture, franchise, sales representative or partnership relationship is created by this Agreement or by your use of the Service.

1.2 You are solely responsible for the language, customization, and accuracy of the Site Content in which your Ad Spaces appear, and for all materials and content related to the sale of advertising in your Ad Spaces including, but not limited to:

(a) the creation of Ad Space descriptions and logos; (b) the placement of Ad Space Javascript into the relevant Site(s); (c) the acceptance or rejection of Advertisements submitted to your Ad Spaces; (d) the accuracy and appropriateness of materials you post on your Site(s); (e) ensuring that content published on your Site(s) does not violate or infringe upon the rights of any third party; and are not in Adify's sole discretion, defamatory, obscene, threatening, libelous, abusive, hateful, or illegal. Adify reserves the right to deactivate any Ad Space at its sole discretion based on Site Content.

1.3 Publisher agrees to refrain from using any device, software, or routine to interfere or attempt to interfere with the proper working of the Service or any activities conducted on Service Provider's servers. Publisher agrees not to take any action that imposes an unreasonable or disproportionately large load on the Service infrastructure. Publisher agrees not to impede or interfere with others' use of the Service. Publisher further agrees not to alter or tamper with any information or materials on or associated with the Service.

1.4 Publisher agrees to abide by the Publisher Guidelines available at Guidelines and FAQs.

1.5 Publisher shall provide Service Provider with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of this Agreement, which may result in immediate termination of this Agreement. Service Provider reserves the right to refuse any application at its sole discretion.

1.6 Publisher may not select or use a user name or Ad Space name with the intent to impersonate another person, company or entity, nor use a name subject to the rights, including intellectual property rights, of any person other than Publisher without written authorization, nor use a user name that Service Provider, in its sole discretion, deems offensive.

1.7 Publisher will not send unsolicited e-mail ("spam") to attract Viewers or Advertisers to any Ad Space or to any Advertisements.

1.8 In accordance with the Publisher Guidelines, Publisher will have the right to approve or reject each submitted Advertisement, or to set one or more default "permissions" for the acceptance or rejection of Advertisements. Service Provider reserves the right to approve on Publisher's behalf any pending Advertisement after 4 days of the Advertisement's submission by Advertiser. Advertiser may cancel pending Advertisements. No payment is due to Publisher on canceled or rejected ads, regardless of the time and method of rejection or cancellation.

1.9 Publisher acknowledges that Service Provider may establish general practices and limits concerning use of the Service, including without limitation the maximum number and type(s) of Advertisements that can be placed into an Ad Space or into a web page, the maximum disk space that will be allocated on Service Provider's servers on Publisher's behalf, the maximum number of times (and the maximum duration for which) Publisher may access the Service in a given period of time, and the minimum traffic and response rates generated with respect to Publisher's Site(s) and Ad Spaces. Publisher further acknowledge that Service Provider reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.

1.10 For the mutual protection of Publishers and Service Provider, Publisher's relationship with Advertisers is governed this Agreement. This Agreement constitutes Publisher's entire agreement with Advertisers and 3rd-Party Service Providers. Service Provider reserves the right to change this Agreement, in its sole and absolute discretion, with or without any notice to Publisher. Publisher's continued use of the Service following Service Provider's posting of any changes to those agreements will constitute Publisher's acceptance of such changes or modifications.

1.11 Publisher is responsible for setting the advertising rates for placing Advertisements into Ad Spaces. Service Provider reserves the right to grant any Advertiser discounts at any percentage of the buy spend. Discounts are shared between the Publisher and the Service Provider according to their commission structure.

1.12 Service Provider charges a Transaction Fee for providing the Service. Service Provider reserves the right to change the Transaction Fee it charges based upon Publisher revenue or other measures Service Provider may devise.

1.13 As described in the Publisher Guidelines, Service Provider handles payment for Advertisements submitted and provides Publishers an online summary of the activity on their Ad Spaces. Charges shall be calculated solely based on records maintained by Service Provider. No other measurements or statistics of any kind shall be accepted by Service Provider or have any effect under this Agreement.

1.14 Publisher agrees to pay any applicable charges under this Agreement, including any applicable taxes or charges imposed by any government entity, including but not limited to personal income tax, social security and/or welfare obligations, sales tax, Value Added Tax (VAT), and use tax if applicable. Publisher also agrees that Service Provider is not obligated to determine whether sales or use taxes apply on any Advertising sales and is not responsible to collect, report, or remit any sales or use taxes arising from any such transaction.

1.15 Service Provider will pay you by check, via PayPal, or via credit card. Accrued credits of $200.00 USD or above during any 30-day period corresponding with the monthly anniversary of your account formation date shall be paid on a net 30 basis, provided that payment from Advertiser has been received by Service Provider. If accrued credits payable to you for any 30-day period corresponding with the monthly anniversary of your account formation date are less than $200.00, Service Provider will pay you on a net 60 basis, provided that payment from Advertiser has been received by Service Provider. If this Agreement is terminated by Service Provider or you, Service Provider will pay you the balance of your earnings within ninety (90) days after termination of the Agreement. Notwithstanding the forgoing, if Publisher is terminated pursuant to section 1.17, Adify shall be entitled to withhold all or any portion of payment due to Publisher.

1.16 Service Provider will send payment to your postal address via United States mail. If you do not cash or deposit your check within its expiry period, you forfeit the entire amount and the payment is canceled.

1.17 In the event Adify makes a good faith determination that Publisher has engaged in click fraud, impression fraud, running advertising on inappropriate content or any other similar activity, Adify shall have the right to (a) immediately terminate Publisher's account, (b) withhold any amounts due and owing to Publisher, and (c) take any other appropriate actions to remedy the situation.

2. General Terms - Advertiser

2.1 The Service is available to any Advertiser who registers with the Service, provides all the required information, and pays for the advertising submitted ("Advertisement") in the manner required by the Advertiser Guidelines.

2.2 Advertiser shall be liable for all charges that accrue based on the Advertisements and other services actually purchased. All prices and charges listed by Publisher/Service Provider or entered by Advertiser (including, but not limited to, Maximum Bid, Daily Budget, etc.) are exclusive of Value Added Tax (VAT) unless stated otherwise. Advertiser agrees to pay all applicable charges under this Agreement, including VAT and any other applicable taxes or charges imposed by any government entity. Service Provider provides tracking tools, and in the event of any dispute in the running of an ad, the number of impressions, click-throughs or transaction on any Advertisement, Advertiser hereby agrees that the tracking metrics provided by Service Provider shall be the official tracking metrics for resolving the dispute.

2.3 Publisher, Service Provider and their designees reserve the right to, and in their sole discretion may, at any time review, reject, or remove any Advertisement. The sole liability of Publisher and Service Provider to Advertiser for removal of any Advertisement is limited to a refund of any fees paid for Advertisements that have not yet run, if any. No liability of Publisher, Service Provider or their designees shall result from any such decision. Notwithstanding the foregoing, Publisher cannot remove an Advertisement that was purchased on a sponsorship basis and still has time to run.

2.4 Payments are to be made via PayPal, with credit card, or, upon special arrangement, by check or wire transfer to the account designated by Service Provider. If an Advertisement is not accepted, Service Provider or its designees shall return the fee paid upon submission of the Advertisement to Advertiser via either 1) the PayPal system to the PayPal account Advertiser used for payment, or 2) by refunding the credit card purchase, or 3) by mailing Advertiser a check to the postal address registered with Service Provider via the appropriate Service Provider form, if the ad was paid for by check or wire transfer. If a refund is not claimed within the time period specified by the Advertiser Guidelines, Advertiser forfeits the entire amount and the payment is canceled. Any check not cashed within its expiry period will be forfeited and the payment is canceled. Other than as specifically described above, all fees paid for Advertisements are nonrefundable.

2.5 Advertiser may not use the Service in order to transmit, distribute, store or destroy material, including without limitation Web Site Content, (a) in violation of any applicable law or regulation, (b) in a manner that will infringe the copyright, trademark, trade secret or other intellectual property rights of others or violate the privacy, publicity or other personal rights of others, including any information that personally identifies any consumer, or (c) that is defamatory, obscene, threatening, libelous, abusive, hateful or otherwise illegal, or (d) any data that is personally identifiable information, including but not limited to an individual's name, mailing address, phone number, or e-mail address. Service Provider reserves the right to restrict, suspend, or terminate Advertiser's access to all or any part of the Service at any time, for any or no reason, with or without prior notice, and without liability.

2.6 Advertiser agrees not to use any device, software or routine to interfere or attempt to interfere with the proper working of the Service or any activities conducted on Service Provider's servers. Advertiser agrees not to take any action that imposes an unreasonable or disproportionately large load on the Service's hardware, bandwidth or software. Advertiser agrees not to impede or interfere with others' use of the Service. Advertiser further agrees not to alter or tamper with any information or materials on or associated with the Service.

2.7 By submitting an Advertisement to the Service, the Advertiser grants Service Provider the right to reproduce, publish, display and distribute, without additional charge, the Advertisement on any of the Service Provider sites or in any Service Provider collateral materials, including but not limited to www.adify.com. In addition, Advertiser hereby agrees that Publisher and Application Provider may display Advertiser's Advertisements, free of charge, on other sites maintained by Publisher or by Service Provider. If you wish to opt out from providing Service Provider such additional rights, please contact Service Provider by sending an email to help@adify.com.

2.8 By submitting an Advertisement to the Service, Advertiser represents and warrants that it is the owner of all patent, copyright, mask work, trademark, service mark, and any and all other proprietary rights and interests therein. Advertiser hereby grants Publisher, Application Provider and their designees the right to communicate such works to the public, perform and display the content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media, or technology now known or later developed, for the full term of this Agreement for the purpose of providing the Service and posting the Advertisement as described in this Agreement. Advertiser also permits any Viewer to access, display, view, store and reproduce such content. Subject to the foregoing, the Advertiser retains any and all rights that may exist in its Advertisements.

2.9 Advertiser acknowledges and agrees that Publisher or its designees may preserve Advertiser Content and may also disclose Advertisements if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce these Terms and Conditions; (c) respond to claims that any Advertisement violates the rights of third-parties; or (d) protect the rights, property, or personal safety of Service Provider, Publisher, Viewers and the public.

2.10 Advertiser hereby represents and warrants that Advertiser is authorized to publish Advertisements and further represents, that the contents are not unlawful, do not infringe the rights of any person or entity and that the Advertiser has obtained all necessary permission or releases to display the Advertisement.

2.11 Advertiser further represents and warrants that any Web Site linked to Advertiser's Advertisement(s) complies with all laws and regulations in any state or country where the Advertisement is displayed, does not breach and has not breached any duty toward or rights of any person or entity and is not false, misleading, defamatory, obscene, libelous, slanderous, threatening, abusive, hateful or otherwise illegal.

2.12 Advertiser acknowledges and agrees that Publisher, Service Provider, their affiliates, partners and third-party service providers make no guarantee regarding the levels of impressions or clicks for any Advertisement(s) or for any Ad Space(s). Advertiser further acknowledges that Publisher and Service Provider, their affiliates and third-party service providers act as a passive conduit for the online distribution and publication of Advertiser-submitted information and have no obligation to screen communications or information in advance and are not responsible for screening or monitoring material posted by Viewers. Publisher, Service Provider, their affiliates and third-party service providers do not warrant or make any representations regarding the use or the results of the use of the materials posted in terms of their correctness, accuracy, timeliness, reliability or otherwise.

3. Intellectual Property

3.1 All Advertisements uploaded to the Service by Advertiser including, without limitation, all intellectual property rights in the same, shall remain Advertiser's sole and exclusive property.

3.2 All Publisher content uploaded to the Service ("Publisher Content") including, without limitation, all intellectual property rights in the same, shall remain Publisher's sole and exclusive property. Notwithstanding the foregoing, Publisher hereby grants Service Provider (and, including without limitation, Service Provider's content and syndication partners) a non-exclusive, royalty-free, worldwide license to use Publisher Content for the purpose of promoting the sale of Advertisements on Publisher's Web Site(s), and for other legitimate Service Provider purposes. In addition, Service Provider may retain and use for its own purposes any Publisher Content Service Provider aggregates (i.e., renders in a form such that no Publisher Content is attributable to a specific Publisher), and share such information about Publishers with advertisers and business partners, including syndication partners, sponsors, and other third parties.

3.3 All software, equipment, data, information and materials, developed or provided by Service Provider or its suppliers under this Agreement or used by Service Provider to provide the Service, including all intellectual property rights in the same, shall remain the sole and exclusive property of Service Provider or its suppliers, as the case may be.

3.4 You acknowledge and agree that Service Provider may preserve Publisher Content or Advertisements for a period of up to five (5) years, and may also disclose the same if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce these Terms and Conditions; (c) respond to claims that any such Content violates the rights of third-parties; or (d) protect the rights, property, or personal safety of Service Provider, its Advertisers, Viewers and the public. Nothing in this Agreement requires Service Provider to preserve Publisher Content or Advertisements.

4. Liability/Warranties/Indemnification

4.1 You shall indemnify Service Provider with respect to all liability, losses, damages, costs or expenses howsoever caused, arising out of, or in connection with a breach of your obligations under this Agreement.

4.2 You acknowledge that you are using the service at your own risk. The Service is provided "as is", and Service Provider and its affiliates hereby expressly disclaim any and all warranties, express and implied, including but not limited to any warranties of accuracy, reliability, title, merchantability, non-infringement, fitness for a particular purpose or any other warranty, condition, guarantee or representation, whether oral, in writing or in electronic form, including but not limited to the accuracy or completeness of any information contained therein or provided by the service. Service Provider, its affiliates and its third party service providers do not represent or warrant that access to the Service will be uninterrupted or that there will be no failures, errors or omissions or loss of transmitted information, or that no viruses will be transmitted on the Service.

4.3 No advice or information, whether oral or written, obtained by you from Service Provider through or from the Service shall create any warranty not expressly stated in this Agreement.

4.4 Service Provider and its affiliates and third party service providers shall not be liable to Publisher or to any third parties for any direct, indirect, special, consequential or punitive damages allegedly sustained arising out of this Agreement, the providing of services hereunder, the sale or purchase of any goods or merchandise, Publisher's access to or inability to access the Service, including for viruses alleged to have been obtained from the Service, your use of or reliance on the Service or any of the merchandise, information or materials available on the Service, regardless of the type of claim or the nature of the cause of action, even if advised of the possibility of such damages. Each party acknowledges that the other party has entered into this Agreement relying on the limitations of liability stated herein and that those limitations are an essential basis of the bargain between the parties.

4.5 You hereby agree to release Service Provider, its affiliates and third-party service providers, and each of their respective directors, officers, employees, and agents from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed ("claims"), arising out of or in any way connected with your use of the service.

4.6 Advertiser hereby agrees to release Publisher, Service Provider, their affiliates, partners, and third-party service providers, and each of their respective directors, officers, employees, and agents from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed ("claims"), arising out of or in any way connected with Advertiser's use of the Service. If Advertiser is a California resident, Advertiser waives California civil code section 1542, which states, in part: "a general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor".

4.7 The aggregate liability for Service Provider to Publisher for all claims arising from the use of the Service is limited to the net proceeds to Service Provider from the Advertising sales Publisher's Ad Spaces generated during the previous calendar month.

4.8 Service Provider is not responsible for the content of the Advertisements managed under the Service. Service Provider does not review Advertisements before they are displayed, and does not verify, endorse, or otherwise take responsibility for the contents of any Advertisements. Service Provider reserves the right to remove from its servers any Advertisement or Publisher Content which it determines to be in violation of its rules and guidelines.

4.9 You are responsible for all usage or activity on your account management tools, including use of the account by any third party authorized by you to use your user name and password. You are advised to maintain the confidentiality of your account management password. You are responsible for ensuring that you exit from your account at the end of each session. If you are a Publisher, you are solely responsible for the usage and placement of Ad Spaces on your Web Site(s).

5. Termination

5.1 Service Provider reserves the right to terminate you and remove your Ad Space or your Advertisement from the Service without notice for any reason, or for no reason.

5.2 If Service Provider terminates the Agreement, it will send an email to you if you have supplied a valid address on the relevant registration form. If you have not supplied a currently valid email, Service Provider may terminate this Agreement without any notice.

5.3 You may terminate this Agreement for any reason, or for no reason, by removing your Ad Space from your Site(s) or by stopping all current and pending advertising purchases, and sending an e-mail to terminate@adify.com. Notwithstanding the foregoing, you cannot terminate this Agreement if you have any outstanding Sponsorship Advertisements running in your Ad Spaces, or if you purchased a Sponsorship that is active. See Guidelines. If you discontinue or suspend an Ad Space into which Sponsorship Advertisements have been displayed, you agree to reimburse all such Advertisers the total amount of their Sponsorship purchase.

6. Miscellaneous

6.1 This Agreement shall be governed in all respects by the laws of California without regard to conflict of laws principles, and the parties agree to submit to the exclusive jurisdiction of the California courts. All disputes under this Agreement shall be heard in San Mateo County, California, USA. If any provision of these Terms & Conditions are held by a court of competent jurisdiction to be illegal or unenforceable under applicable law, that provision shall be limited or eliminated to the minimum extent necessary under such law so that these Terms & Conditions shall otherwise remain in full force and effect and enforceable.

6.2 This Agreement constitutes the entire agreement between you and Service Provider with respect to the subject matter hereof and there are no representations, understandings, or agreements that are not fully expressed in this Agreement.

6.3 While Service Provider, its affiliates, partners and third-party service providers do value feedback on the Service, we ask that you be specific in their comments and not to submit creative ideas, inventions, suggestions, or materials. If, despite our request, you send us creative suggestions, ideas, drawings, concepts, inventions, or other information (collectively the "Submission"), the Submission shall be the property of Service Provider, its affiliates, partners and third-party service providers. None of the Submission shall be subject to any obligation of confidence on Service Provider, its affiliates, partners and third-party service providers, and the same shall not be liable for any use or disclosure of any Submission. Service Provider, its affiliates, partners and third-party service providers shall own exclusively all now known or later discovered rights to the Submission and shall be entitled to unrestricted use of the Submission for any purpose whatsoever, commercial or otherwise, without compensation to you or any other person who submitted the Submission.

6.4 In the event that the bulk of the assets of Service Provider, its affiliates, partners and third-party service providers are acquired, customer data submitted via the Service may be among the transferred assets.

6.5 You must be at least 16 years of age to use the Service.

7. Children's Privacy Statement

This children's privacy statement explains Service Provider's practices with respect to the online collection and use of personal information from children under the age of thirteen, and provides important information on your rights under federal law with respect to such information.

7.1 Service Provider does NOT knowingly collect personally identifiable information from children under the age of thirteen. If Service Provider becomes aware that it has inadvertently received personally-identifiable information from a user under the age of thirteen, it will delete such information from its records. If Service Provider changes its practices in the future, we will obtain prior, verifiable parental consent before collecting any personally identifiable information from children under the age of thirteen.

7.2 Because Service Provider does not collect any personally identifiable information from children under the age of thirteen, Service Provider also does NOT knowingly distribute such information to third parties.

7.3 Service Provider does NOT knowingly allow children under the age of thirteen to publicly post or otherwise distribute personally identifiable contact information.

7.4 Because Service Provider does not collect any personally identifiable information from children under the age of thirteen, it does NOT condition the use of the service by a child under thirteen.