WE ASK THAT YOU READ THE FOLLOWING TERMS AND CONDITIONS VERY CAREFULLY BEFORE REGISTERING WITH eUpClick.COM AND COMPLETING THE INSERTION ORDER. COMPLETING AND SENDING THE INSERTION ORDER INDICATES THAT YOU ACCEPT THESE TERMS AND CONDITIONS. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS, PLEASE DO NOT REGISTER FOR OR PARTICIPATE IN eUpClick.COM.
1. Introduction. This agreement ("Agreement") between You and eUpClick.COM ("eUpClick.COM") consists of the Insertion Order and the present Terms and Conditions ("Terms and Conditions"). A description of the pricing is indicated in the Insertion Order. "You" or "Publisher" means any entity identified in an enrollment form submitted by the same or affiliated persons, and/or any agency or network acting on its (or their) behalf, which shall also be bound by the terms of this Agreement.
2. Registration. Registration is subject to eUpClick.COM’s approval and Your continued compliance with the present terms and conditions as well as future changes as notified on the website (eUpClick.COM). eUpClick.COM reserves the right to refuse any applicant or participant at any time in its sole discretion.
By enrolling as a Publisher, You represent that You are at least 18 years of age and agree that eUpClick.COM may serve (a) third party and/or eUpClick.COM provided advertisements and/or other content (such third party provided advertisements, eUpClick.COM provided advertisements and other content, collectively, "Ads"), or other feeds distributed through such Web site(s) , media player(s), video content, mobile content and/or Other Properties (each such Web site, media player, video content, mobile content, Other Property or feed, a "Property") on your website. For the avoidance of doubt, any reference in this Agreement or reference to a Publisher’s “Web page”, “Web site”, “Web site page” or the like that is part of the Property will also mean feeds and media players distributed through such Web site.
You also agree that if your website changes the services being offered, products being sold or any material change whatsoever you will notify eUpClick.COM. Failure to do so will result in immediate termination of your account without compensation.
4. Communications. You agree to direct to eUpClick.COM, and not to any advertiser, any communication regarding any Ad(s) or Link(s) displayed in connection with Your Property(ies) and not with the advertisers directly. You agree and acknowledge that contacting the advertiser may cause irreparable damage to eUpClick.COM’s business and as such you will be held responsible for any and all issues from such breach.
5. Responsibility. You are solely responsible for the Property(ies), including all content and materials, maintenance and operation thereof, the proper implementation of eUpClick.COM’s specifications, and adherence to the terms of this Agreement. eUpClick.COM reserves the right to investigate, at its own discretion, any activity that may violate this Agreement, including but not limited to any use of a software application to access Ads, Links, etc., or any engagement in any activity prohibited by this Agreement. eUpClick.COM is not responsible for anything related to Your Property(ies), including without limitation the receipt of queries from end users of Your Property(ies) or the transmission of data between Your Property(ies) and eUpClick.COM. In addition, eUpClick.COM shall not be obligated to provide notice to You in the event that any Ad, Link, is not being displayed properly however eUpClick.COM will diligently work to ensure the system is in place and working.
6. Prohibited Uses. You shall not, and shall not authorize or encourage any third party to: (i) directly or indirectly generate queries, or impressions of or clicks on any Ad, Link,(including without limitation by clicking on “play” for any video Ad) through any automated, deceptive, fraudulent or other invalid means, the use of robots or other automated query tools and/or computer generated search requests, and/or the unauthorized use of other search engine optimization services and/or software; (ii) edit, modify, filter, truncate or change the order of the information contained in any Ad, Link, Ad Unit or remove, obscure or minimize any Ad, Link, Ad Unit in any way without authorization from eUpClick.COM; (iii) frame, minimize, remove or otherwise inhibit the full and complete display of any Web page accessed by an end user after clicking on any part of an Ad ("Advertiser Page"), any Search Results Page, or any Referral Page; (iv) redirect an end user away from any Advertiser Page, Search Results Page, or Referral Page; provide a version of the Advertiser Page or Page that is different from the page an end user would access by going directly to the Advertiser Page; intersperse any content between the Ad and the Advertiser Page, between the page containing the Search Box and the Search Results Page; or otherwise provide anything other than a direct link from an Ad to an Advertiser Page, from the page containing the Search Box to the Search Results Page; (v) display any Ad(s), Link(s), on any Web page or any Web site that contains any pornographic, hate-related, violent, or illegal content; (vi) directly or indirectly access, launch, and/or activate Ads, Links, through or from, or otherwise incorporate the Ads, Links, in, any software application, Web site, or other means other than Your Property(ies), and then only to the extent expressly permitted by this Agreement; (vii) "crawl", "spider", index or in any non-transitory manner store or cache information obtained from any Ads, Links, or any part, copy, or derivative thereto; (viii) act in any way that violates any Policies posted on the eUpClick.COM Web Site, as may be revised from time to time, or any other agreement between You and eUpClick.COM (ix) disseminate malware; (x) create a new account after eUpClick.COM has terminated this Agreement with You as a result of your breach of this Agreement; or (xi) engage in any action or practice that reflects poorly on eUpClick.COM or otherwise disparages or devalues eUpClick.COM’s reputation or goodwill. You acknowledge that any attempted participation or violation of any of the foregoing is a material breach of this Agreement and that we may pursue any and all applicable legal and equitable remedies against You, including an immediate suspension of Your account or termination of this Agreement, and the pursuit of all available civil or criminal remedies.
7. Warranty. In completing registration as a publisher with eUpClick.COM you confirm and attest that your website (or any affiliation thereof) does not offer, sell, promote, transmit, display, link to, affiliate with in any way whatsoever content or the transmission of data that contains illegal or obscene material, fosters or promotes illegal activity, including but not limited to, child exploitation or child pornography of any kind, hate, racist or obscene material, illegal drugs, pornography, gambling which is illegal in said jurisdiction, the offering for sale of illegal weapons, and the promotion or publication of any material that may violate hate crimes legislation. In doing so, eUpClick.COM shall immediately suspend or terminate Your account without prior notice. Further, eUpClick.COM will actively assist and cooperate with law enforcement agencies and government authorities in collecting and tendering information about your website, as well as those persons that may have inappropriately accessed, acquired, or used the illegal or obscene content.
In addition, you confirm and attest that your website (or any affiliation thereof) does not offer, sell, promote, transmit, display, link to, affiliate with in any way whatsoever intellectual property for which you are not the rightful owner and does not promote, sell or is any way involved in intellectual property including trademark, copyright infringement of any kind without exception. In doing so, eUpClick.COM shall immediately suspend or terminate Your account without prior notice. Further, eUpClick.COM will actively assist and cooperate with law enforcement agencies and government authorities in collecting and tendering information about your website, as well as those persons that may have inappropriately accessed, acquired, or used the illegal or obscene content.
By using eUpClick.COM, you confirm that you are the author and copyright owner and/or proper licensee with respect to any hosted content on your website or have express permission and you further represent and warrant that no content violates the trademark or rights of any third party.
Further, you confirm and attest that your website (or any affiliation thereof) does not offer, sell, promote, transmit, display, link to, affiliate with in any way whatsoever services or products which are prohibited or illegal and such services or products offered do not contravene any law, statute, government act whatsoever. In doing so, eUpClick.COM shall immediately suspend or terminate Your account without prior notice. Further, eUpClick.COM will actively assist and cooperate with law enforcement agencies and government authorities in collecting and tendering information about your website, as well as those persons that may have inappropriately accessed, acquired, or used the illegal or obscene content.
8. Termination; Cancellation. You may terminate this Agreement by sending written notice of your desire to cancel to info@eUpClick.com. This Agreement will be deemed terminated within ten (10) business days of eUpClick.COM’s receipt of Your notice. eUpClick.COM may investigate any activity that may violate this Agreement. eUpClick.COM may at any time, in its sole discretion, terminate all or part of the Agreement, or suspend or terminate the participation of any website for any reason. In addition, eUpClick.COM reserves the right to terminate without notice any account that has not generated a sufficient number of valid clicks on Ads or valid impressions of Ads for a period of two (2) months or more.
9. Confidentiality. You agree not to disclose eUpClick.COM Confidential Information without eUpClick.COM’s prior written consent. "eUpClick.COM Confidential Information" includes without limitation: (a) all eUpClick.COM software, technology, programming, specifications, materials, guidelines and documentation; (b) click-through rates or other statistics relating to eUpClick.COM and this Agreement; and (c) any other information designated in writing by eUpClick.COM as "Confidential" or an equivalent designation. eUpClick.COM Confidential Information does not include information that has become publicly known through no breach by You or eUpClick.COM, or information that has been (i) independently developed without access to eUpClick.COM Confidential Information, as evidenced in writing; (ii) rightfully received by You from a third party; or (iii) required to be disclosed by law or by a governmental authority.
10. No Guarantee. eUpClick.COM makes no guarantee regarding the level of impressions of Ads or clicks on any Ad or Referral Button, the timing of delivery of such impressions and/or clicks, the completion of Referral Events, or the amount of any payment to be made to You under this Agreement. In addition, for the avoidance of doubt, eUpClick.COM does not guarantee the Service as per this agreement will be operable at all times or during any down time (i) caused by outages to any public Internet backbones, networks or servers, (ii) caused by any failures of Your equipment, systems or local access services, (iii) for previously scheduled maintenance or (iv) relating to events beyond eUpClick.COM’s (or its wholly owned subsidiaries’) control such as strikes, riots, insurrection, fires, floods, explosions, war, governmental action, labor conditions, earthquakes, natural disasters, or interruptions in Internet services to an area where eUpClick.COM (or its wholly owned subsidiaries) or Your servers are located or co-located.
11. No Warranty. eUpClick.COM MAKES NO WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WITH RESPECT TO ADVERTISING, LINKS, SEARCH, REFERRALS, AND OTHER SERVICES, AND EXPRESSLY DISCLAIMS THE WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR ANY PARTICULAR PURPOSE. TO THE EXTENT ADS, LINKS, AND SEARCH RESULTS ARE BASED ON OR DISPLAYED IN CONNECTION WITH NON-eUpClick.COM CONTENT, eUpClick.COM SHALL NOT HAVE ANY LIABILITY IN CONNECTION WITH THE DISPLAY OF SUCH ADS, LINKS, AND SEARCH RESULTS.
12. Limitations of Liability; Force Majeure. EXCEPT FOR ANY INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS HEREUNDER OR YOUR BREACH OF ANY INTELLECTUAL PROPERTY RIGHTS AND/OR PROPRIETARY INTERESTS RELATING TO THE THIS AGREEMENT, (i) IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND (ii) eUpClick.COM’S AGGREGATE LIABILITY TO PUBLISHER UNDER THIS AGREEMENT FOR ANY CLAIM IS LIMITED TO THE NET AMOUNT PAID BY eUpClick.COM TO PUBLISHER DURING THE THREE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM. 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. WITHOUT LIMITING THE FOREGOING AND EXCEPT FOR PAYMENT OBLIGATIONS, NEITHER PARTY SHALL HAVE ANY LIABILITY FOR ANY FAILURE OR DELAY RESULTING FROM ANY CONDITION BEYOND THE REASONABLE CONTROL OF SUCH PARTY, INCLUDING BUT NOT LIMITED TO GOVERNMENTAL ACTION OR ACTS OF TERRORISM, EARTHQUAKE OR OTHER ACTS OF GOD, LABOR CONDITIONS, AND POWER FAILURES.
13. Payment. Payment shall be made to the Publisher within 60 days of the advertising campaign being monetized (for the sake of clarification, when the ads have generated revenue). Payment shall be made be wire, Paypal or other means as determined by the parties.
Payment shall be based on amounts pre-determined by the parties. There shall be no minimum obligation by eUpClick.COM.
In the event the Agreement is terminated, eUpClick.COM shall pay Your earned balance to You within approximately ninety (90) days after the end of the calendar month in which the Agreement is terminated by You (following eUpClick.COM’s receipt of Your written request, including by email, to terminate the Agreement) or by eUpClick.COM.
Notwithstanding the foregoing, eUpClick.COM shall not be liable for any payment based on: any amounts which result from invalid queries, or invalid clicks or impressions on Ads generated by any person, bot, automated program or similar device, as reasonably determined by eUpClick.COM, including without limitation through any clicks or impressions (i) originating from Your IP addresses or computers under Your control, (ii) solicited by payment of money, false representation, or request for end users to click on Ads, or (iii) solicited by payment of money, false representation, or any illegal or otherwise invalid request; (c) clicks co-mingled with a significant number of invalid clicks. eUpClick.COM reserves the right to withhold payment or charge back Your account due to any of the foregoing or any breach of this Agreement by You, pending eUpClick.COM’s reasonable investigation of any of the foregoing or any breach of this Agreement by You, or in the event that an advertiser whose Ads are displayed in connection with Your Property(ies) defaults on payment for such Ads to eUpClick.COM.
eUpClick.COM may change its pricing and/or payment structure at any time with proper notification in writing (e-mail). The payments made under this Agreement are for use by You only and may not be transferred or in any manner passed on to any third party unless expressly authorized in writing by eUpClick.COM (including by e-mail).
Payment. Gst/Qst will be applicable for all Canadian/Quebec sales with publishers.
14. Publicity. You agree that eUpClick.COM may use Your name and logo in presentations, marketing materials, customer lists and financial reports with your written approval. Failure to which they will not be used.
15. Representations and Warranties. You represent and warrant that (a) all of the information provided by You to eUpClick.COM for registration is correct and current; (b) You are the owner of each Property or You are legally authorized to act on behalf of the owner of such Property(ies) for the purposes of this Agreement; (c) You have all necessary right, power, and authority to enter into this Agreement and to perform the acts required of You hereunder; and (d) You have complied and will continue to comply with all applicable laws, statutes, ordinances, and regulations (including without limitation the CAN-SPAM Act of 2003 and any relevant data protection or privacy laws) in Your performance of any acts hereunder. In addition, to the extent that Your Site is a media player (1) You represent and warrant that You have a valid license to use and distribute such media player (including all content therein, including without limitation any Ads or Ad Units) for the purposes of this Agreement; and (2) You shall ensure that any media player(s) that constitutes the Site shall comply with the terms and conditions set forth herein. You further represent and warrant that each Property and any material displayed therein: (i) comply with all applicable laws, statutes, ordinances, and regulations; (ii) do not breach and have not breached any duty toward or rights of any person or entity including, without limitation, rights of intellectual property, publicity or privacy, or rights or duties under consumer protection, product liability, tort, or contract theories; and (iii) are not pornographic, hate-related or otherwise violent in content.
16. Your Obligation to Indemnify. You agree to indemnify, defend and hold eUpClick.COM, its agents, affiliates, subsidiaries, directors, officers, employees, and applicable third parties (e.g. relevant advertisers, syndication partners, licensors, licensees, consultants and contractors) (collectively "Indemnified Person(s)") harmless from and against any and all third party claims, liability, loss, and expense (including damage awards, settlement amounts, and reasonable legal fees), brought against any Indemnified Person(s), arising out of, related to or which may arise from Your use of the present agreement, the Property(ies), and/or Your breach of any term of this Agreement.
17. eUpClick.COM Rights. You acknowledge that eUpClick.COM owns all right, title and interest, including without limitation all Intellectual Property Rights (as defined below), in (including eUpClick.COM’s ad serving technology, search technology, referral technology, and Brand Features, including implied licenses, and excluding items licensed by eUpClick.COM from third parties and excluding any third party media player that may comprise the Property), and that You will not acquire any right, title, or interest in this agreement except as expressly set forth in this Agreement. You will not modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from any eUpClick.COM services, software, or documentation, or create or attempt to create a substitute or similar service or product through use of or access to the service or proprietary information related thereto. You will not remove, obscure, or alter eUpClick.COM’s copyright notice, Brand Features, or other proprietary rights notices affixed to or contained within any eUpClick.COM services, software, or documentation (including without limitation the display of eUpClick.COM’s Brand Features with Ads, Links, Search Boxes, Search Results, and/or Referral Buttons, as applicable). "Intellectual Property Rights" means any and all rights existing from time to time under patent law, copyright law, semiconductor chip protection law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, as well as, any and all applications, renewals, extensions, restorations and re-instatements thereof, now or hereafter in force and effect worldwide.
19. Miscellaneous. This Agreement shall be governed by the laws of the Province of Quebec, except for its conflicts of laws principles. Any dispute or claim arising out of or in connection with this Agreement shall be adjudicated in Montreal, Quebec. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. Any modifications to this Agreement must be made in a writing executed by both parties, by Your online acceptance of updated terms, or after Your continued registration with the service by eUpClick.COM after such terms have been updated by eUpClick.COM. The failure to require performance of any provision shall not affect a party's right to require performance at any time thereafter, nor shall a waiver of any breach or default of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself. If any provision herein is held unenforceable, then such provision will be modified to reflect the parties' intention, and the remaining provisions of this Agreement will remain in full force and effect. You may not resell, assign, or transfer any of Your rights hereunder. Any such attempt may result in termination of this Agreement, without liability to eUpClick.COM. Notwithstanding the foregoing, eUpClick.COM may assign this Agreement to any affiliate at any time without notice. The relationship between eUpClick.COM and You is not one of a legal partnership relationship, but is one of independent contractors.
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