Media Company and Adtrue are hereinafter individually referred to as the “Party” and collectively as the “Parties”.
1.1 Capitalized terms used herein shall have the meanings ascribed to them in the body of this Agreement, or as defined below. Terms other than those defined below shall be given their plain English meaning and terms of art having specialized meanings in the industry shall be construed in accordance with industry standards. Unless the context otherwise requires, words importing the singular include the plural and vice-versa.
1.1.1 “Advertising Services” means the, Sponsored Link and Other Advertising services that are provided by AdTrue to Site(s) (defined below) pursuant to this Agreement.
1.1.2 “AdTrue Services” means the Advertising Services and Search Services provided by AdTrue to Customer under this Agreement as indicated in Exhibit A attached hereto.
1.1.4 “AdTrue Web Search” means the AdTrue algorithmic search service delivered hereunder by AdTrue and generated by its AdTrue search engine.
1.1.5 “Customer Application” means any application, plug-in, helper, component or other code that (a) is downloaded or installed on a user’s computer (examples of which include those that provide browser helper objects, instant messaging, chat, email, data, file viewing, media playing, file sharing, games, internet navigation, or search), (b) is owned or operated by Customer and (c) accesses the AdTrue Services.
1.1.6 “Customer Portfolio” means any and all URLs (owned and/or controlled by the customers from the Media Company) where the advertisement will be published.
1.1.7 "Domain" means all Web pages presented to the user as, and commonly understood to be part of, a single Web site. In most cases, a U.S. Domain will include all Web pages with URLs that share the same second-level (and top-level) domain name system (DNS) identifiers (e.g., all Web pages with URLs that begin: https://adtrue.com/ or http://www.adtrue.com and an international Domain will include all Web pages with URLs that share the same third-level (and second- and top-level) DNS identifiers.
1.1.8 “Effective Date” means the date this Agreement is signed by the Customer.
1.1.9 “End User” means the user of a Site.
1.1.10 “Intellectual Property Rights” means any and all rights existing from time to time under patent law, copyright 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.
1.1.11 “Media Company” means (a) the owner (if not Company) of the Site(s), or (b) the third party who provides Advertising services on the site(s).
1.1.12 “One-Click Page” means a 404 Error Web page or DNS error Web page generated in response to an incorrect URL being entered into the address bar or a Web page generated in response to a correct URL being entered into the address bar.
1.1.13 “Other Advertising” means all other AdTrue programs or products included as Advertising Services hereunder.
1.1.14 “Query” means a search query that originates directly from an End User and includes, without limitation, (a) each query entered directly by an End User into a search box (whether such box appears on a Web page or is included in a Customer Application); (b) each query otherwise submitted by an End User through use of a Customer Application; and (c) each click by an End User on a Zoom Search link.
1.1.15 “Reply Page” means a Web page displayed in response to a Query that is not a One-Click Page.
1.1.16 “Site(s)” means, collectively, (a) all web pages on the Domain(s) (b) all web pages on domains owned and operated by Customer, (c) all web pages on domains included in the Customer portfolio, (d) all web pages and domains currently under Agreement for ad services by Customer.(including any other domains that redirect users to such Domain and also including any successor Domain(s)thereto); (e) all Web pages of Domain(s) owned or controlled by Customer, which Domain(s) Customer desires to include hereunder and which is approved in advance by AdTrue (excluding any Domain with a URL that includes any trademarks that are not owned by the owner of such domain, and any Domain which includes child pornography, hate-related or gambling-related content); (f) all Customer Applications approved by AdTrue in writing; (g) all Webpages controlled by Customer that are displayed by action of any Customer Application approved by AdTrue in writing; and (h) all Reply Pages displayed in response to Queries received from any of the foregoing Web pages and Customer Applications. Unless otherwise agreed by AdTrue in writing, Customer shall own or control each Site and each Reply Page, and AdTrue shall not be required to pay Customer with respect to any Queries from any Site that is not owned or controlled by Customer or Queries that resolve to any Reply Page that is not owned and controlled by Customer.
1.1.17 “Spam Queries or Clicks” means those queries or clicks on Advertising Services for which: (a) AdTrue does not receive payment from an advertiser or third party provider for any reason whatsoever, be it because such queries or clicks are determined to be fraudulent or automated or for any other reason; or (b) AdTrue is required to provide a refund or credit to an advertiser or third- party provider following receipt of payment from such advertiser or third party provider due to the determination that the queries or clicks for which AdTrue has received payment are fraudulent or automated.
1.1.18 “Sponsored Links” means a compensated advertising listing that includes title, description, advertiser URL (defined below) and linking mechanism, and that may include an image, as may be updated by AdTrue from time to time. Sponsored Links include AdTrue Sponsored Links and Third Party Sponsored Links.
1.1.19 “Third Party Sponsored Link” means Sponsored Links provided to AdTrue by a third party.
1.1.20 “Trademark(s)” means the AdTrue trademarks, logos or service marks.
1.1.21 “URL” means a uniform resource locator for documents or other resources on the Internet
1.1.22 “Web page” means any page on the World Wide Web and any other content accessible over the Internet.
1.1.23 “Zoom Search” means the AdTrue service by which alternative search terms related to a prior search are determined algorithmically by AdTrue and presented to End Users.
1.2 Media Company or any of its affiliates, or affiliate sites, will not display the ads via exit pops, pop under, pop up, and only on the static page after a verified user takes completed and validated action. The user will only see the ads on the confirmation page after the user completes the validation process. The user will not be forced to the confirmation page in anyway and the user will only be taken to the thank you/confirmation page ad in the same window. Media Company cannot open a new tab or window with our ads, only once the user completes all fields in the form with valid information.
1.3 If any of the requirements in this Agreement are not met in any way, AdTrue has the right to hold all payments due to Customer or any of its affiliates.
1.4 Pop up, under and interstitial ads are allowed only if approved by AdTrue in writing before implementing on the Customer’s website.
The following General Terms and Conditions shall apply to all Media Companies for the use of the AdTrue Service.
2.1 Media Company. Media Company assigns AdTrue as its representative for management and optimization of the Inventory. Media Company expressly grants AdTrue rights to open, manage, and negotiate the terms of and accounts with potential and real buyers of the Inventory. Media Company will provide AdTrue with the content parameters, upon AdTrue's request.
2.2.1 The Services may only be used for legal purposes;
2.2.2 Media Company is responsible for maintaining the confidentiality of its account information and for any unauthorized use of its account;
2.2.3 It will not involve in any activity that impedes or disrupts the Services, or the servers and networks related to the Services.
2.3 AdTrue Services. Subject to the further terms and conditions hereof, AdTrue will provide the following services to Media Company (the "Services").
2.3.1 Optimization. Subject to the content parameters identified by Media Company, AdTrue will use its proprietary algorithm to identify and serve the advertisement that pays the highest price from among the resources available to AdTrue to fill each impression in the Inventory.
2.3.2 Existing Accounts. Media Company may elect to have AdTrue manage and optimize accounts which were previously created by Media Company with certain buyers ("Pre-Existing Accounts"). Media Company agrees to provide AdTrue with reasonably requested assistance in getting access to any and all information deemed necessary by AdTrue to manage the Pre-Existing Accounts and keep track of Fees due therefrom.
2.3.3 Relationship with Buyers. AdTrue shall make its commercially reasonable best efforts to collect payment from non-Pre-Existing Account buyers. Media Company acknowledges and agrees that AdTrue may not sell Inventory to any buyer on the basis of non-payment or otherwise.
3.1 Payment Date. AdTrue will offer the payment with Net-30 for Media Company.
3.2 Payment Method. All payments shall be made by bank wire transfer / Paypal to the account designated by Media Company as following:
Account Number / IBAN:
BIC / SWIFT code:
This Agreement shall start on the Effective Date and either party may terminate this Agreement for any reason up on thirty (30) days written notice to the other party. Either party may end this Agreement immediately upon material violation of this Agreement by the other party. On termination of the Agreement, AdTrue shall halt provision of the Services right away. AdTrue shall pay Media Company, the Media Company Share on any amounts received from buyers after termination.
5.1 Forbidden Uses. It shall be deemed a material breach of this Agreement if Media Company, directly or through a third party:
5.1.1 Causes its Inventory to be incorrectly valued through any ways, mechanism, or technology;
5.1.2 Creates impressions or clicks on any advertisement through any automated, deceptive, fraudulent or other invalid ways, including but not limited to through repeated manual clicks or the use of robots or other automated query tools;
5.1.3 Modifies, filters, or changes any information contained in any advertisement, or removes, obscures or minimizes any advertisement in any way;
5.1.4 Frames, minimizes, removes or otherwise prohibits the full and complete display of any page accessed by an end user after clicking on any part of an advertisement;
5.1.5 Redirects an end user away from any advertisement;
5.1.6 Provides anything other than a direct link from an advertisement to the page indicated by the advertiser;
5.1.7 Displays any advertisements on any page that contains any pornography, violence, excessive profanity, or illegal content;
5.1.8 Accesses, launches, and/or activates advertisements through or from, or otherwise incorporates advertisements in any software application, page, or other medium other than as expressly allowed hereunder;
5.1.9 Crawls, spiders, indexes or in any non-transitory manner, stores or caches information gained from any advertisement;
5.1.10 Spreads malware or other malicious or damaging code (even if unintentionally malicious);
5.1.11 Creates a new account to use the Services after AdTrue has halted this Agreement or Media Company's account;
5.1.12 Involves in any action or practice that reflects poorly on AdTrue or otherwise disparages or destroys AdTrue's reputation or goodwill. The existence of the aforementioned termination right shall not preclude AdTrue's exercise of any other rights and solutions, at law or in equity that AdTrue may have.
5.2 Intellectual Property.
5.2.1 Software License. During the term of the Agreement, AdTrue grants Media Company a non-exclusive, non-sublicensable, limited license to access the AdTrue software for the purposes provided under this Agreement. This license shall immediately terminate upon termination of this Agreement.
5.2.2 Content. All information or material accessible as part of, or through, the Services (including but not limited to any and all advertisements posted to an advertising space in the Inventory) (the "Content") is the single responsibility of the person from whom such material originated. All Content may be protected by intellectual property rights which are possessed by the provider of the Content (or by third parties). Media Company agrees that it will not modify, distribute, copy, sell, or create derivative works based on the Content. Media Company acknowledges and agrees that:
5.3. Representations and Warranties. Media Company and AdTrue represent and warrant that:
5.3.1 All information provided to the other party is true, accurate, correct, and complete;
5.3.2 It has the power and authority to enter in this Agreement;
5.3.3 Its performance of its obligations hereunder does not breach any Agreement with any third party.
5.4 Confidentiality. The term Confidential Information means any material revealed to the other party and designated in writing as confidential. Each party agrees that it will not reveal the Confidential Information to any third party and that this Agreement is Confidential Information.
5.5 Indemnity. Each of the Parties hereto agrees to indemnify and keep indemnified and save harmless the other, and any of its respective successors, licensees and assigns, from actual and direct losses, costs, liabilities, damages and expenses (including lawyer’s fees) resulting from any breach of any representation, warranty and/or covenant under this Agreement.
5.6 Limitation on Liability. Notwithstanding anything contained in this Agreement, in no event will either party (including, without limitation, its executives, directors, officers, managers, employees, agents, parent companies, subsidiaries, and affiliates) be liable to the other party for, or any consequential, special, incidental, punitive or indirect damages of any kind (including without limitation, damages for loss of business profits, business interruption, or other pecuniary loss) arising out of this Agreement. Either party’s total cumulative liability, if any, to the other party, for any and all damages, related to the Agreement, will be limited to, and will not exceed, the actual fees paid by AdTrue to the Media Company preceding the claim giving rise to liability.
5.7 Acknowledgment. Media Company acknowledges and agrees that: (1) Media Company has read and understood this Agreement; (2) the terms of this Agreement are equal, reasonable, and not unduly restrained; and (3) Media Company has had the opportunity to confer with legal consultation of its choosing regarding this Agreement prior to implementing same.
5.8 Entire Agreement. This Agreement constitute the entire understanding between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous Contracts and understandings, whether oral or written, regarding such subject matter.
5.9 Notices. All notices and other communication hereunder shall be in writing, shall be addressed to the receiving party's email address as listed foregoing or as a party may designate by notice hereunder, and shall be deemed to have been given at the time that receipt thereof has been acknowledged by electronic confirmation or otherwise.
5.10 Amendment. This Agreement may be supplemented, amended, or modified only by the mutual agreement of the parties. No supplement, amendment, or modification of this Agreement shall be binding unless it is in writing and signed by the Parties.
5.11 Survival. The Clauses pertaining to Termination, Representations and Warranties, Confidentiality, Indemnity and Limitation of Liability will survive the termination or early expiration of this Agreement. Additionally, all provisions of this Agreement will survive the expiration or termination of this Agreement to the fullest extent necessary to give the Parties the full benefit of the bargain expressed herein.
5.12 Waiver. Failure by any party at any time to require performance by another party or to claim a violation of any provision of this Agreement will not be construed as a waiver of any right accruing under this Agreement, nor affect any subsequent violation, nor influence on the effectiveness of this Agreement or any part thereof, nor prejudice any party as regards any subsequent action.
5.13 Governing Law; Jurisdiction; Venue. This Agreement shall be governed by and construed in accordance with the laws of the United States, without regard to conflicts of laws. Any proceeding arising out of the parties' relationship shall be brought exclusively in the courts of the United States.
5.14 Attorneys' Fees. In terms of any litigation arising out of this Agreement, the party shall bear its own costs incurred, including reasonable attorneys' fees, whether incurred during settlement, at trial, in arbitration, on appeal, or in any bankruptcy proceeding.
5.15 Assignment; Binding Effect. This Agreement may be assigned to any buyer of all or considerably all of the assets of either party, if and only if the provisions of this Agreement are binding in full on the successor.
5.16 Electronic Signature. Media Company acknowledges and agrees that the following electronic signature is as valid and binding on Media Company as any handwritten signature.