BURST MEDIA ADVERTISING SALES REPRESENTATION AGREEMENT
By signing below, you appoint Burst Media Corporation as your sales representative and agree that any property or product on which you place your unique Burst source code will be included as a Burst member according to the terms and conditions contained in this Advertising Sales Representation Agreement (this "Agreement").- Publisher Obligations and Eligibility Requirements
1.
To join and remain in Burst Media, a publisher
must meet the following Eligibility Requirements. Burst's Eligibility
Requirements are also posted on the Burst web site (www.burstmedia.com). The
following requirements apply to any content that you publish where you have
posted your unique Burst source code, including all web pages within those
domains regardless of whether that particular page hosts Burst source code or
not.
1.
Represent specialty content. Portals, search
engines, and sites of links to other people's content do not fit our definition
of specialty content.
2.
Provide current, regularly updated content.
3.
The site must have minimum traffic of 25,000
page views or 5,000 uniques per month to remain in Burst Media.
4.
Be in English. Burst does not allow any of its
ads to appear on foreign language sites.
5.
Have an active, publicly stated privacy policy
that is compliant with our partnership with the Network Advertising
Initiative. We use third-party advertising companies to serve ads when you
visit our Web site. These companies may use aggregated information (not
including your name, address, email address or telephone number) about your
visits to this and other Web sites in order to provide advertisements about
goods and services of interest to you. If you would like more information about
this practice and to know your choices about not having this information used
by these companies, click
here.
6.
Agree to our full
eligibility requirements and advertising
conditions. These can be found on Burst's web site (www.burstmedia.com).
7.
Reside on a top-level domain. No sites hosted on
free providers (such as Geocities, Tripod, etc) are eligible.
8.
Your site may NOT contain any adult, sexually
explicit, or mature content, use explicit language, or link to adult or
sexually explicit content.
9.
Your site may NOT allow Burst ads on any sites
or pages for which you are not directly responsible or any sites that have not
been reviewed and approved by Burst.
10.
Your site may NOT infringe on any material
protected by copyright.
11.
Your site may NOT allow timed rotation or auto
refresh of Burst banners.
12.
Your site may NOT contain user-submitted content
that is not moderated.
2.
Burst requires that all sites comply with all Federal
privacy laws including the Children's Online Privacy Protection Act. Burst
requires each publisher to designate itself as having children's or
non-children's content as well as designating if they knowingly collect any
personal information from children under the age of thirteen. It is the
publisher's responsibility to notify Burst in the event that either their
content or their policy on data collection changes. Burst reserves the right to
change a publisher's designation if, in our judgment, the publisher's
designation does not match site content and demographics. In addition, Burst
requires that sites have a posted privacy statement, linked from the home page
that reflects the current fair information practices approved by the U.S. government
and prominent Internet industry organizations.
3.
Burst requires that you host a link to an opt-in
Visitor Survey which will capture demographic information from your audience if
they choose to participate on a strictly anonymous basis. Aggregated results of
the survey for your unique Burst source code will be made available to you in
an online report.
4.
Burst does not guarantee any specific percentage
of paid advertising to a website. "Default Impressions" (impressions
served when no paid advertising is available) are a by-product of our business.
Publishers may choose to redirect all or a portion of their Default Impressions
at no additional charge. If a Publisher does not specify a default redirect,
Burst reserves the right to utilize these Default Impressions for its sole
benefit without compensation to the Publisher. Such uses may include, but are
not limited to, running opt-in visitor surveys, collecting user data, promoting
Burst products and services, running test campaigns, running public service
announcements, and/or running "make good" campaigns (make good
campaigns are unpaid advertisements that are run to make-up for the occasional
discrepancies that occur during the normal course of business).
- Rates & Revenues
1.
Burst will determine all advertising rates and
may change the rates without notice. You are free to set advertising rates for
any advertising sold by you or members of your staff.
2.
Rate information is proprietary and confidential
information and it may not be shared with other advertisers or third parties.
- Billing & Payment
1.
Burst will handle all accounting arrangements
and provide you an online summary of the activity on your unique Burst source
code.
2.
Your earnings will equal (1) your Contract Rate
times (2) the sum of (a) your gross advertising billing minus (b) any
advertising agency commissions and minus (c) other expenses. Other expenses are
used to cover the fees and risks incurred in order to fulfill campaigns
successfully such as, but not limited to, building creative, ad serving, data
purchase, campaign research, sweepstakes and prize fulfillment, conversion
tracking, foreign currency exchange, cost-of-money, as well as a handling
expense. Other expenses may also include fees such as one-time set-up fees,
annual servicing fees, or licensing fees, which Burst will recoup by allocating
a fixed fee to all of the appropriate campaigns. Burst will pass-through these
expenses in the form of a reduced price per unit paid. Such fees may not be
detailed in the contract between Burst and the advertiser. This will be the
only basis for payment to you for advertising.
3.
Burst pays members on the fifteenth day of each
month elected via electronic payment for all campaigns that ended at least [45]
days earlier regardless of whether the advertiser has paid Burst.
Burst retains the credit risk of collections and guarantees you payment on a
regular schedule.
1.
You will be paid for all campaigns unless you
have earned less than your minimum requested amount (not to be less than $50).
Your balance will carry forward until such time as you have a balance greater
than your minimum requested amount. Burst reserves the right to terminate this
agreement if your account goes unpaid due to a failure to meet the minimum
requested payment amount ($50) during any six (6) months period.
2.
Payments under $5.00 for an inactive account
will not be made and are permanently forfeited.
3.
NOTE: Burst WILL NOT MAKE ANY PAYMENTS TO YOU
UNTIL SUCH TIME AS WE HAVE RECEIVED FROM YOU AN EXECUTED COPY OF THIS
AGREEMENT, INCLUDING A COMPLETED TAX STATUS FORM (Exhibit A.)
4.
Revenue will be calculated based on traffic
audits from Burst's central server. Burst traffic audits will be the sole
source of audience traffic measurement for billing purposes. Some ads may be
shown by a third party server. In that case Burst may need to rely on the third
party server's traffic audits as the sole source of audience traffic
measurement for billing purposes.
5.
You agree not to use, or allow the use of, any
deceptive, incentivized, mechanical, computerized or other artificial means of
increasing the number of users, impressions, page views, click-throughs or any
other measure of your traffic.
6.
If, in its reasonable judgment, Burst concludes
that there has been deceptive, incentivized, mechanical, computerized or other
artificial means used to increase impressions, page views, click-throughs, or
any other measure of Internet traffic at your web site, Burst may terminate
this Agreement and seize all of your earnings hereunder, whether they have been
paid out to you or not.
- Web Site Advertising
1.
Upon execution of this Agreement, you will be
given a password which allows you to access the information on the Burst
Publisher Account Center (BPAC) You are responsible for the security of your
BPAC password and are responsible for any actions taken by anyone using your
password.
2.
Burst will provide you with source code that
will display advertising from Burst's server on your web page(s). Load the code
as prescribed on the BPAC and do not alter it without Burst's consent. By running
our source code, you agree to abide by the terms and conditions for the
advertising set forth in this Agreement and on the BPAC.
- Ownership of Data
All data collected by Burst or advertisers through
the Burst source code or otherwise from your web site will be the property of
Burst or the advertiser, as the case may be, and you will have no rights in or
to such data. You hereby acknowledge that information, graphics, and
infrastructure provided by Burst are the sole property of Burst and may not be
used without its prior written consent.
- Terms and Contract Rate
1.
Your Contract Rate is determined by the term of
this Agreement. Please click the term you have selected below.
| Term | Contract Rate |
| Three years (exclusive) | 60% |
| One year (exclusive) | 55% |
| Month-to-Month (non-exclusive) | 50% |
2.
Notwithstanding your selection above, all new
publishers are required to initially sign a month-to-month (non-exclusive)
agreement when joining the Network.
3.
Under an exclusive contract, Burst will be the
sole source of advertising for your site except for (i) advertising sold by
employees of your web site or (ii) any exclusions we agree to when this
Agreement is executed (you must request an Exhibit B addendum).
4.
If no term is indicated or you accept
advertising without a signed Agreement in effect, then this Agreement will be
deemed to have a month-to-month term and the corresponding Contract Rate.
- Termination
1.
If you terminate this Agreement for any reason
other than a breach of this Agreement by Burst that is not cured after thirty
days e-mail notice, all of your earnings are subject to a Contract Rate
adjustment. Your earnings will be recalculated based upon the then current
lowest applicable Contract Rate for the actual time the Agreement was in
effect. For example: if you choose a 3 year term and terminate the Agreement
after 2 years, you will owe us the difference between the 60% (3 year Contract
Rate) and 55% (1 year Contract Rate) or a Contract Rate adjustment of 5% for
all advertising revenue generated during the term of the Agreement; or, if you
terminate after 10 months, you will owe us the difference between 60% and 50%
or a Contract Rate adjustment equal to 10%. You will also owe us revenue for
advertising scheduled prior to our receipt from you of an e-mail notice of
termination.
2.
Burst reserves the right at any time, in its
sole and absolute discretion, to terminate this Agreement, or in lieu of
terminating this Agreement, to suspend the marketing of and placement of
advertising for you. If Burst terminates this Agreement for any reason other
than your breach, then revenue for advertising run through the date of
termination will be payable at the originally agreed upon Contract Rate.
- Renewal
If no new Agreement is executed upon this
Agreement's expiration, this Agreement will automatically renew as a
month-to-month (non-exclusive) agreement, but pursuant to the terms and
conditions in the then current form of Advertising Sales Agreement posted on
the Burst web site.
- Representations, Warranties and Covenants
You hereby represent, warrant and covenant that (a)
use of your publications by Burst or any of Burst's advertisers will not
infringe on any third party intellectual property rights, including without
limitation, United States or foreign trademarks, patents, copyrights, rights of
publicity, moral rights, music performance or other music-related rights, or
any other third-party right, (b) your web site does not and will not contain
any content which violates any applicable law or regulation, and (c) you have
all necessary rights and authority to enter into this Agreement and place
advertising on the publications identified in this Agreement and on, adjoining,
or in the vicinity of other web sites that may be viewed, linked or visited
through access to your web site or in any location where you choose to place
your individualized Burst ad code.
- Indemnification
1.
If any claim or suit is brought against Burst or
an advertiser due to (i) your breach of this Agreement, or (ii) any other act
by you, including anything related to your website, you will assume the defense
of any such claim or suit and to indemnify Burst and the advertisers against
any damages, losses, expenses and reasonable costs, including attorney's fees,
in such suit or claim and in the reasonable investigation of any allegations of
such suit or claim.
2.
If any claim or suit is brought against you due
to a breach of this Agreement by Burst, Burst will assume the defense of any
such claim or suit and to indemnify you and the advertisers against any
damages, losses, expenses and reasonable costs, including attorney's fees, in
such suit or claim and in the reasonable investigation of any allegations of
such suit or claim.
- Disclaimers, Exclusions and Limitations
1.
Disclaimer of Warranty. EXCEPT AS
EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS, NEITHER PARTY MAKES, AND
EACH PARTY HEREBY SPECIFICALLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES,
EXPRESSED OR IMPLIED, REGARDING THAT PARTY'S WEB SITE AND ANY PRODUCT, SERVICE
OR INFORMATION THEREON OR OTHERWISE RELATING TO THESE TERMS AND CONDITIONS,
INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF
PERFORMANCE. NEITHER PARTY WARRANTS THAT ITS WEB SITE WILL OPERATE
UNINTERRUPTED OR ERROR-FREE.
2.
Limitation of Liability. EXCEPT AS
OTHERWISE PROVIDED IN SECTION 10, UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE
LIABLE TO THE OTHER PARTY WITH RESPECT TO ANY SUBJECT MATTER OF THESE TERMS AND
CONDITIONS UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR
OTHER LEGAL OR EQUITABLE THEORY, WHETHER OR NOT THAT PARTY HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGE, FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL,
SPECIAL OR EXEMPLARY DAMAGES ARISING FROM ANY PROVISION OF THESE TERMS AND
CONDITIONS , INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED
PROFITS OR LOST BUSINESS. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY
FAILURE OF ESSENTIAL PURPOSE. IN NO EVENT SHALL THE RECEIVING PARTY'S AGGREGATE
LIABILITY ARISING OUT OF THESE TERMS AND CONDITIONS EXCEED THE PAYMENTS TO THE
DIRECTING PARTY HEREUNDER. THE LIMITATIONS OF LIABILITY UNDER THIS SECTION 11.B
SHALL NOT APPLY TO A PARTY'S INDEMNIFICATION OBLIGATIONS CONTAINED IN SECTION
10.
- Governing Law, Venue, Arbitration
1.
This Agreement shall be governed by the laws of
the Commonwealth of Massachusetts.
2.
You hereby irrevocably (i) submit to the
nonexclusive jurisdiction of any Massachusetts state or Federal court sitting
in Boston in any action or proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby, (ii) agree that all claims
in respect of such action or proceeding may be heard and determined in such
Massachusetts state court or in such Federal court, and (iii) waive, to the
fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding.
3.
Any claim, controversy or dispute between the
parties to this Agreement, their agents, employees, officers, directors or
affiliated agents ("Dispute") shall be resolved by arbitration
conducted by a single arbitrator engaged in the practice of law, under the then
current rules of the American Arbitration Association ("AAA"). The
Federal Arbitration Act, 9 U.S.C. Secs. 1-16, not state law, shall govern the
arbitration of all Disputes. The arbitrator shall have authority to award
compensatory damages only. The arbitrator's award shall be final and binding
and may be entered in any court having jurisdiction thereof. Each party shall bear
its own costs and attorneys' fees, and shall share equally in the fees and
expenses of the arbitrator. The arbitration shall occur in Boston,
Massachusetts and the laws of Massachusetts shall govern the construction and
interpretation of the Agreement.
- Successors and Assigns
This Agreement shall be binding on the undersigned,
its successors and assigns. You may assign this Agreement in connection with an
assignment, sale or other conveyance of your web site, provided, however, in
connection with such assignment, the assignee must load new unique Burst
supplied programming code on each page of the web in which advertising is run
in order to identify the new owner for tax reporting purposes.
- Setoff
In the event Burst is due any sums under the terms
of this Agreement or for any other services provided by Burst, Burst may
collect such amounts from your earnings.
- Confidential Information
In the course of performing the services
contemplated by this Agreement, it may be necessary for the parties hereto to
disclose to each other confidential information. Neither party will, during or
after the term of this Agreement, reveal any such information to any third
parties or use such information for itself or any third party except as
authorized in writing by the disclosing party or as required by applicable law
or court order. Each party will take reasonable precautions to insure that all
such information is not disclosed by any of its employees or agents to any
unauthorized persons and will limit disclosure to its employees on a "need
to know" basis. Confidential information does not include information that
is, or subsequently may become within the knowledge of the public generally,
through no fault of the party hereto receiving the information, or information
that the receiving party can show was previously known to it at the time of
receipt.
The above provision applies solely to confidential
information of you and Burst. In the course of providing advertising to your
site, advertisers will disclose to you and Burst additional confidential
information. Advertisers generally consider all information that they disclose
to be confidential, including, but not limited to, the content of the
advertising, the web sites the advertising is run on, the number of impressions
delivered, the fee paid for the advertising, the data collected from users and
even the fact that the advertising was placed on a web site. Advertisers impose
strict confidentiality obligations on anyone receiving such information. With
respect to this advertiser confidential information, you agree to comply with
the requirements in the immediately preceding paragraph. Further, no advertiser
confidential information may be disclosed, released, used or made public in any
other way without our prior written consent.
Please indicate your agreement to these terms and
conditions by clicking below (for registration through the internet).
NOTE: IF YOU ARE UNDER 18 YEARS OF AGE, YOU MUST RETURN A
HARD COPY OF THE AGREEMENT TO BURST MEDIA, CO-SIGNED BY A PARENT OR GUARDIAN,
EITHER BY POST OR FAX.PLEASE MAIL TO BURST MEDIA, ATTN: PUBLISHER SERVICES, 8 NEW ENGLAND EXECUTIVE PARK, BURLINGTON, MA 01803 OR FAX TO 1-781-852-8676.
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Exhibit A
So that we handle your tax reporting correctly, please fill out the category that pertains to your business structure (PLEASE FILL OUT ONLY ONE OF THE FIVE CHOICES).
UNITED STATES BASED WEB SITE OWNERS OPTION 1:
The Web site is established as a United States based company (Inc., Corp., LLC, LLP. etc.).
·
Employer Identification Number (EIN):
·
Please make checks payable to Business Name as
shown on Federal Tax return:
·
Please mail the checks to the following address
(if different from Web site address):
Under penalties of perjury, I certify that:
1.
The Social Security Number provided is my tax
payer id and is the correct number for the entity named as the payee.
2.
I am not subject to backup withholding because:
(a) I am exempt from backup withholding, or (b) I have not been notified by the
Internal Revenue Service (IRS) that I am subject to backup withholding as a
result of a failure to report all interest or dividends, or (c) the IRS has
notified me that I am no longer subject to backup withholding.
3.
I am a U.S. person (including a U.S. resident
alien)
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Burst Signature
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The Web site is a sole proprietorship.
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The owner's Social Security Number:
·
The owner's name as shown on Social Security
card:
·
Please make checks payable to:
·
Please mail the checks to the following address
(if different from Web site address):
Certification
Under penalties of perjury, I certify that:
1.
The Social Security Number provided is my tax
payer id and is the correct number for the entity named as the payee.
2.
I am not subject to backup withholding because:
(a) I am exempt from backup withholding, or (b) I have not been notified by the
Internal Revenue Service (IRS) that I am subject to backup withholding as a
result of a failure to report all interest or dividends, or (c) the IRS has
notified me that I am no longer subject to backup withholding.
3.
I am a U.S. person (including a U.S. resident
alien)
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Publisher Signature
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Burst Signature
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The web site is foreign based and has no affiliation with a U.S. tax filing company or individual:
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Please make checks payable to:
·
Please mail the checks to the following address
(if different from web site address):
Certification
Under penalties of perjury, I declare that I have examined the information on this form and to the best of my knowledge and belief it is true, correct, and complete. I further certify under penalties of perjury that:
1.
I am the beneficial owner (or am authorized to
sign for the beneficial owner) of all the income to which this form relates,
2.
The beneficial owner is not a U.S. person,
3.
The income to which this form relates is not
effectively connected with the conduct of a trade or business in the United
States or is effectively connected but is not subject to tax under an income
tax treaty, and
4.
For broker transactions or barter exchanges, the
beneficial owner is an exempt foreign person as defined in the instructions.
Furthermore, I authorize this form to be provided to any withholding agent that
has control, receipt, or custody of the income of which I am the beneficial
owner or any withholding agent that can disburse or make payments of the income
of which I am the beneficial owner.
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While the web site is foreign based, it is owned by a United States tax filer as a sole proprietorship.
·
The owner's Social Security number:
·
The owner's name as shown on Social Security
card:
·
Please make checks payable to the owner:
·
Please mail checks to the following address (if
different from web site address):
Certification
Under penalties of perjury, I certify that:
1.
The Social Security number provided is my tax
payer id and is the correct number for the entity named as the payee.
2.
I am not subject to backup withholding because:
(a) I am exempt from backup withholding, or (b) I have not been notified by the
Internal Revenue Service (IRS) that I am subject to backup withholding as a
result of a failure to report all interest or dividends, or (c) the IRS has
notified me that I am no longer subject to backup withholding.
3.
I am a U.S. person (including a U.S. resident
alien)
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Burst Signature
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The web site is effectively connected with a company (Inc., Corp., LLC, LLP. etc.) that conducts trade or business in the United States.
·
Employer Identification Number (EIN):
·
Please make checks payable to Business Name as
shown on Federal Tax Return:
·
Please mail checks to the following address (if
different from web site address):
Under penalties of perjury, I declare that I have examined the information on this form and to the best of my knowledge and belief it is true, correct, and complete. I further certify under penalties of perjury that:
1.
I am the beneficial owner (or I am authorized to
sign for the beneficial owner) of all the income to which this form relates,
2.
The amounts for which this certification is
provided are effectively connected with the conduct of a trade or business in
the United States
and are includible in my gross income (or the beneficial owner's gross income)
for the taxable year, and
3.
The beneficial owner is not a U.S. person.
Furthermore, I authorize this form to be provided to any withholding agent that
has control, receipt, or custody of the income of which I am the beneficial
owner or any withholding agent that can disburse or make payments of the income
of which I am the beneficial owner.
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