MediaShakers Corp.合約

This Agreement ("Agreement") is effective immediately with the Publisher clicking I agree, and is made by Mediashakers.com ("Mediashakers ") the Publisher that accepts this agreement ("Publisher"). For purposes of this Agreement, Publisher's authorized representative will be the person who has filled out the form on the website. This Agreement governs advertising delivered through Publisher’s Web site(s) or platform(s) (the "Publisher’s Site(s)"). MediaShakers and Publisher agree as follows:

1. MediaShakers plans advertising campaigns and buys advertising media on behalf of its clients.
2. Publisher sells certain advertising products and services that it is willing to make available in support of MediaShakers’s clients’ advertising campaigns.
3. Publisher desires to sell and MediaShakers desires to purchase certain of Publisher's products and services in accordance with the terms set forth in this Agreement.

NOW THEREFORE, in consideration of the mutual covenants set forth herein, the parties agree as follows:

DEFINITIONS

"Advertising Material" means the text, graphics, logos, designs, trademarks and copyrights for any type of advertising including, but not limited to, buttons, banners, text-links, pop-ups, and pop-unders is created by an advertiser.
"Advertiser(s)" means one or more customers of MediaShakers which create the Advertising Material, and authorizes MediaShakers as its agent to include it on the Publisher’s Site(s).
"Approved Monthly Delivery" means the amount of inventory to be delivered for each calendar month of the campaign as stated in the Order.
"Approved Monthly Spend" means the amount of money that MediaShakers sets as as spending limit, and for which it will be liable for any calendar month if specified under a particular Order.
"MediaShakers HTML Insertion Code" means the code in which Publishers are permitted to use Advertising Material delivered to the Publisher’s Site(s).
"MediaShakers Network" means the advertising network owned and operated by MediaShakers.
"Impressions" means the number of times Advertising Material is served to a person visiting the Publisher’s Site(s).
"Order" means an insertion order that is submitted by MediaShakers and is accepted by Publisher, or an online order via the Internet, which is a proposal that is submitted by Publisher in response to a request for proposal and is accepted by MediaShakers
"Publisher Earnings" and "MediaShakers Earnings". "Publisher Earnings" means the total revenue MediaShakers generates by running advertising campaigns for Publisher using the Advertising Materials less "MediaShakers Earnings", and subject to the Total Spend that may be established under an Order. "MediaShakers Earnings" are calculated at the campaign level at the sole and absolute discretion of MediaShakers. MediaShakers evaluates each advertising campaign and makes relative earnings calculations based upon a number of factors including the type of campaign metric (e.g., CPM, CPC, CPA), the performance of the campaign, technology costs, and other factors relating to the campaign, the performance of Publisher's site(s) and MediaShakers's Network as a whole.
"Total Spend" means the maximum amount of money for which MediaShakers will be liable under the Order.
"Unique Click" means the number of times, as recorded by MediaShakers’s server, a person visiting Publisher's Site(s), as identified by cookie or IP address, clicks on Advertising Material, provided however, that a click on Advertising Material by a particular visitor shall only be counted as a Unique Click once every 24-hour period.

AGREEMENT

1. Order, Delivery, and Adjustments.

1.1. Relationship. From time to time, the parties may negotiate the terms of Orders under which Publisher will deliver Advertising Material for advertising campaigns to its Site(s) for the benefit of each Advertiser.

1.2. Orders. Publishers may initially deliver any amount of impressions. If contacted in order to limit delivery or certain directions as to the type of traffic, it's georgraphic origin etc. publisher must comply with these requests.

1.3. Adjustments to Orders. Mediashakers may make adjustment to numbers until the 15th of the following month. These adjustments may be reflected in reporting or may be notified by email to the email that was on the sign up publisher form when signing up.

2. Invoicing and Payment.

2.1. Payment. Within 35 days after the last day of each calendar, MediaShakers will pay Publisher its Publisher Earnings for Advertising Material actually delivered by Publisher to each of Publisher’s Site(s) approved by MediaShakers during the applicable calendar month and for which MediaShakers has been paid by the Advertiser in accordance with Section 3.2 herein, subject to the applicable Order’s specifications, terms and conditions. Publisher acknowledges that MediaShakers bills its Advertisers, and pays its Publishers, based on actual delivery.

2.2. Liability for Publisher’s Revenue. Publisher understands and agrees that MediaShakers acts solely as an agent for the Advertisers; and that MediaShakers shall only be liable to Publisher for Publishers’s Revenue based on payments from Advertisers that it has received without restrictions that constitute immediately-available funds to MediaShakers (hereinafter called "Cleared Funds"). Publisher agrees that (i) MediaShakers shall have no liability or obligation to Publisher for payments due but unpaid from Advertisers, or that are not Cleared Funds; (ii) Publisher will only assert any claims therefore directly against the Advertisers; and(iii) Publisher shall hold MediaShakers harmless and indemnify it from any claims or liability related to such unpaid amounts or or amounts that do not constitute Cleared Funds. MediaShakers agrees to make every reasonable effort to bill, collect and clear payment from the Advertisers on a timely basis. MediaShakers, reserves the absolute right not to make any payments if the Publisher violates any of the terms and conditions set forth herein. MediaShakers shall not pay for clicks generated from MediaShakers house banners. Clicks from MediaShakers house banners will result in no revenue for Publisher.

2.3. Invoicing and Payments.

• If Publisher Submits an Invoice. Publisher shall ensure that invoices display Advertisers’s name, Media Plan number, and the time period being billed. Publisher shall invoice each campaign separately on a calendar monthly basis, in the month following delivery. Invoices shall be based on actual delivery amounts based on Mediashakers reporting, not contracted numbers. All invoices received by MediaShakers will be considered final and correct after 45 days of receipt unless MediaShakers disputes the accuracy of an invoice by a written notice to Publisher, in case the dispute shall be resolved as provided herein.
• If Publisher Does Not Submit an Invoice MediaShakers makes its own final determination of the Publisher’s due balances on the first day of the calendar month after previous calendar month. This determination shall be calculated based on the amount of traffic as counted by the MediaShakers tracking system, multiplied by the fixed rate or revenue share percentage, as agreed to in the Order and as it is displayed in the publishers information within the MediaShakers system. Publisher shall notify MediaShakers in writing that it disputes the calculation within 75 days after the last calendar day of the month in question. All MediaShakers calculated payments after that period shall be deemed to be correct and final.
• Disputes.
• If Publisher issues an invoice. If Publisher issues an invoice, and MediaShakers disputes all or a portion it, MediaShakers shall pay the part of the invoice that is undisputed. The disputed part of the invoice shall be negotiated between the parties until agreement is reached and MediaShakers shall then pay the agreed upon price of the disputed amount.
• If Publisher does not issue an invoice. If Publisher disputes all or part of a balance calculated by MediaShakers according to its tracking system, MediaShakers shall pay the undisputed part, and the disputed part shall be negotiated between the parties until agreement is reach, and MediaShakers shall then pay the agreed upon amount

2.4. Taxes. MediaShakers assumes no responsibility for paying income taxes on behalf of Publisher. By participating in the MediaShakers Network, Publisher assumes complete and sole responsibility for any taxes owed as a consequence thereof.

3. Advertising Materials.

3.1 Linking and Trafficking Guidelines. Prior to displaying the first Advertising Materials specified in an Order, MediaShakers shall provide Publisher with linking instructions, URL, banner, and alternative text for the Advertising Material. MediaShakers may make changes to any such Advertising Material upon 48 hours notice, via e-mail, telephone or fax. Publisher shall process such changes so as to deliver the Advertising Material correctly, clearly, and at the times and frequencies specified by MediaShakers. In the event Publisher fails to run the Advertising Material properly, MediaShakers may require appropriate delivery of additional Advertising Material and/or a proportional or total reduction in amounts payable.

3.2. Delivery of Advertising Material. MediaShakers shall provide all Advertising Material to Publisher via servers at MediaShakers. MediaShakers shall issue Orders to Publisher, and shall provide Publisher with appropriate linking instructions to the MediaShakers servers. Publisher shall obtain the Advertising Materials from the MediaShakers services at the time of delivery the Advertising Materials for a specific advertisement. If Publisher is unable to obtain the Advertising Materials from the MediaShakers servers on a consistent basis, Publisher shall cease delivering Advertising Material and shall contact MediaShakers promptly, but in no event more than one business day after the problem first occurred. Publisher shall not resume the display of Advertising Materials until MediaShakers directs Publisher to do so. In the event of a persistent outage of the MediaShakers servers, MediaShakers may, at its option, provide Publisher with the Advertising Materials directly, and may direct Publisher to serve the Advertising Materials from its servers.

3.3. MediaShakers HTML Insertion Code. Publisher shall place the MediaShakers HTML Insertion Code on all appropriate pages within its Site(s). Publisher shall not alter, sell or disclose the MediaShakers HTML Insertion Code in any way without MediaShakers’s prior written consent. The MediaShakers HTML Insertion Code for Advertising Material may not be used on a web page other than one located at an approved Site and may not be distributed or submitted to any newsgroup, e-mail distribution list, chat room, guest books, or other location which would result in the execution of such code without a bona fide visit to an approved Web Site.

3.4. Modification Of Advertising Material. Advertising Material must not be modified from original format without consent from MediaShakers. Publisher agrees to use the Advertising Material provided for displaying not more than one ad unit size per page view. Advertising Material cannot be placed in email messages. Publisher can not alter, copy, modify, take, sell, reuse, or divulge any computer code for the Advertising Materials, except as is necessary to partake in the MediaShakers Network, provided, however, with the prior approval of MediaShakers, the Publisher may, in certain instances, modify the Advertising Material computer code for purposes of inserting certain pre-approved language above or below the Advertising Material. Requests for language approval should be sent to publishers@MediaShakers.com. If Publisher violates this provision, MediaShakers, may, at its option, either reduce or eliminate any and all payments due hereunder, and/or terminate this Agreement as provided herein.

3.5. Recording of Service Counts. MediaShakers shall have the sole responsibility for calculation of statistics, including Impressions and click-through numbers. Greenwich Mean Time (GMT) shall be the time period for traffic and tracking purposes. Statistics shall be available to Publisher online at http://www.MediaShakers.com. Publisher understands that MediaShakers’s online statistics may not be 100% accurate and that MediaShakers may make adjustments to Publisher’s online statistics at the end of each calendar month to account for, among other things, specific contractual provisions (e.g., bonuses) and statistical errors. In the event that coding on Publisher’s Site(s) generates substantial number of erroneous impression due to a technical problem such as server malfunction, coding alteration or a mistake in entering code, Publisher agrees to respond to the e-mail generated by MediaShakers technical support within 48 hours. If Publisher does not respond to this alert, MediaShakers reserves the right to (a) withhold payment on all Impressions and clicks delivered after the 48-hour period has expired, or (b) not show any revenue-producing Advertising Material on the relevant Site(s).

3.6. Fraudulent Impressions. Any method to artificially and/or fraudulently inflate the volume of impressions or clicks is strictly forbidden. Counts of impressions or clicks will be decided solely on the basis of reports generated by MediaShakers's Advertising Network. These prohibited methods include but are not limited to: framing an ad-banner's click-through destination, auto-spawning of browsers, blind text links, running 'spiders' against the Publisher's own website, automatic redirecting of users, pop-up windows or any other technique of generating automatic or fraudulent (as determined by MediaShakers, acting reasonably, or based on industry practices) click-throughs and/or impressions. Advertising Material may not be placed on a page which reloads automatically. . Publisher may not require users to click on Advertising Material prior to entering a Web Site or any area therein or provide incentives of any nature to encourage or require users to click on Advertising Material. Publisher’s clicks-throughs of any link other than MediaShakers's Advertising Material, or use of any other means of artificially enhancing click results shall be a material breach of this Agreement, and upon such occurrence, MediaShakers may terminate this Agreement effective upon delivery of notice. Such termination is at the sole discretion of MediaShakers and is not in lieu of any other remedy available at law or equity. MediaShakers's ad server will be the official counter for determining the number of Advertising Material delivered under an applicable Order, and amounts payable under this Agreement.

3.7. Ad Placement. 728x90 leaderboard, 120x600 skyscraper, and 160x600 wide skyscraper creative must be placed above the fold on an 800x600 pixel screen (within 500 pixels of the top of the webpage) so they are viewable without scrolling; 300x250 medium rectangles must be placed above the fold on an 800x600 pixel screen (within 500 pixels of the top of the webpage).

4. Eligible Site(s).

MediaShakers reserves the absolute right to refuse in its sole discretion to affiliate with any Publisher. The following are examples of sites that are not eligible for participation:

• Sites which contain material that infringes the rights of others (including but not limited to copyright and other intellectual property rights) or which promotes copyright piracy (i.e., unauthorized MP3s, roms, 'warez', emulators, or cracks, etc.)
• sites with pornography, adult content, sexual or erotic material or sites that contain links to such content
• Sites with gratuitous displays of violence, obscene or vulgar language, and abusive content or content which endorses or threatens physical harm
• Sites promoting any type of hate-mongering (i.e., racial, political, ethnic, religious, gender-based, sexuality-based or personal, etc.)
• sites that participate in or transmit inappropriate newsgroup postings or unsolicited e-mail (spam)
• Sites promoting any type of illegal substance or activity (i.e., how to build a bomb, hacking, 'phreaking', etc.)
• Sites with illegal, false or deceptive investment advice and money-making opportunities
• Sites that provide incentives of any nature to require or encourage users to click on ad banners (i.e., charity, sweepstakes, etc.).
• Sites that are under construction or incomplete
• Sites with extremely limited audiences or viewership
• Sites with any type of content reasonable public consensus deems to be improper or inappropriate
• Sites that contain any content violating privacy laws, including the Children’s Online Privacy Protection Act.

At any time MediaShakers may investigate any Site for violation of this Agreement. MediaShakers regularly performs compliance audits. If MediaShakers determines that Publisher's Site(s) includes any undesirable content, MediaShakers may discontinue the Ad campaign upon notice, and Publisher shall immediately cease delivering Advertising Material on such Site(s) . In no event, will MediaShakers or its Advertisers be obligated to pay for Advertising Material delivered through Sites containing undesirable content after Publisher’s receipt of such notice from MediaShakers.

5. Minimum Traffic.

MediaShakers reserves the right to terminate this Agreement immediately should, according to MediaShakers's statistics, either (a) the number of Impressions delivered by Publisher does not ad to $1 in income. or (b) the unique click-through rate on Advertising Material delivered to Publisher's Site(s) equals 70% less than the average click-through rate of said Advertising Material for all web sites in the MediaShakers Network for any 7 consecutive calendar day period; or (c) When calculating the amount due to Publisher under the previous sentence, any payments for a particular month of less than $1.00 will be forfeited. Notwithstanding the foregoing, prior to making any payment to Publisher, MediaShakers reserves the right to (i) demand make-goods for any short-fall of the Minimum Requirements OR (ii) reduce payment to Publisher accordingly.

6. Representations and Warranties.

Publisher represents and warrants to MediaShakers that:

• All content, products, and services on the Site(s) are legal to distribute, that it owns or has the legal right to use, and will not infringe, any and all copyrights, trademarks, patents or other proprietary rights; and
• The Site(s) do not, and will not during the term of this Agreement, contain any material described in Section 4 of this Agreement; and
• The Site(s) are free of any "worm", "virus" or other device that could impair or injure any person or entity; and
• It is generally familiar with the nature of the Internet and will comply with all laws and regulations that may apply; and it will conduct its business in compliance with all applicable laws, rules and regulations; and
• It has full legal power and authority under its organizational documents to enter into this Agreement and to perform the obligations contained herein; and the execution of this Agreement and the performance of its obligations by Publisher will not conflict with or a cause a breach or violation of any agreement, law, regulation or other obligation to which Publisher is a party or subject.
6. Campaign Discontinuance.

MediaShakers has the option, in its sole discretion, to discontinue any Ad campaign or obligation under an Order, with or without cause, by giving a notice via e-mail, telephone or fax, to the Publisher's authorized representative that will be effective immediately on the date when it is sent. If MediaShakers elects to discontinue any Ad campaign or obligation under any Order, all unfulfilled contractual commitments subsequent to notice shall become null and void, and MediaShakers shall pay Publisher only for Advertising Material delivered up to the date of the notice period so long as such Advertising Material are delivered evenly, or at a rate consistent with the rate anticipated in the Order. MediaShakers shall have no obligation to pay for Advertising Material delivered by Publisher prior to the date of the notice that exceeds the number specified in the original order or that vary significantly from the rate of Delivery prior to notice of discontinuance.

8. Term and Termination.

A.    Term. Subject to the early termination rights of either party herin, the term of this Agreement shall be 1 year from the date first written above; and it shall renew automatically for subsequent one-year periods unless either party notifies the other at least 30 days before the end of the then-Term that it does not wish to renew the Agreement.

B.     Termination by Either Party. Notwithstanding Section 8.A above, either party may terminate this Agreement at anytime for one of the following reasons for any reason whatsover, upon 30 days written notice to the other party. Notice may be provided via e-mail or any other public means and will be effective 30 days after its transmission.

C.     Termination by MediaShakers. Notwithstanding Sections 8.A and B above, MediaShakers shall also have the right to terminate this Agreement because of either of the following reaons:

• Immediately upon written notice of because Publisher has breached Section 3.6 herein; or
• Upon the time periods specified in Section 7 herein upon a campaign discontiuance in accordance with that Section.

D.    Consequence of Termination. Upon receipt of such termination notice, Publisher agrees to immediately remove MediaShakers's HTML code for serving Advertising Material from its Site(s). In the case of termination, provided that Publisher has an outstanding account balance equal to or greater than $1, MediaShakers will pay Publisher all legitimate moneys due during the next billing cycle.

9. License and Intellectual Property.

MediaShakers shall may the trade names or trademarks of the other party or Advertisers without prior written approval from the party owning such name or mark.

10. Privacy

10.1. Privacy Policy. Each party shall include conspicuously on its Site(s), a privacy policy that describes how such party collects, uses, stores and discloses users’ personal data if any is collected, including e-mail addresses, and instructs users how to opt-out of such practices. Publisher’s privacy policy shall disclose that third party advertisers may place cookies on the browsers of visitors to Publisher’s Site(s).

10.2. Privacy Representations and Warranties. Each party warrants to the other that, during the term of this Agreement, it shall comply with all applicable laws and regulations (including but not limited to laws governing privacy, and data protection). Publiser warrants that it shall comply with the Self-Regulatory Principles Governing Online Preference Marketing promulgated by the Network Advertising Initiative (available at http://www.networkadvertising.org/aboutnai_principles.asp).

11. Confidentiality.

MediaShakers and Publisher will uphold in confidentiality any information that is not public in accordance with relationship.

12. Indemnification.

The Publisher agrees to indemnify and hold MediaShakers and its affiliates, employees, agents and representatives harmless from and against any and all claims, demands, liabilities, expenses, losses, damages and attorney fees arising from any and all claims and lawsuits for libel, slander, copyright, and trademark violation as well as all other claims resulting from (i) the participation of the Publisher in the MediaShakers Network, (ii) operation of the Publisher's Site(s) submitted to MediaShakers for participation in the MediaShakers Network or (iii) otherwise arising from Publisher's relationship with MediaShakers. The Publisher also agrees to indemnify MediaShakers for any legal fees incurred by MediaShakers, acting reasonably, in investigating or enforcing its rights under this agreement.

13. Disclaimers, Exclusions And Limitations.

• Disclaimer of Warranty. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS, MediaShakers MAKES, AND HEREBY SPECIFICALLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED, REGARDING 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.
• Limitation of Liability. UNDER NO CIRCUMSTANCES WILL MEDIASHAKERS BE LIABLE TO PUBLISHER 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 MEDIASHAKERS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING FROM ANY PROVISION OF THESE TERMS, 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 MEDIASHAKERS' AGGREGATE LIABILITY ARISING OUT OF THESE TERMS AND CONDITIONS EXCEED THE PAYMENTS TO THE PUBLISHER HEREUNDER.
13. Non-Circumvention.

During the Term of this Agreement, and any renewal thereof, and for one (1) year after its termination for any reason, Publisher agrees that it will not do business directly or indirectly with any Advertiser specified in an Order, or directly or indirectly solicit or induce such Advertiser to do business directly with the Publisher. Publisher understands and agrees that this prohibition is a key consideration and inducement for MediaShakers to enter into this Agreement with Publisher, and to provide the services hereunder.

15. General.

15.1. Inconsistency with Order. In the event of any inconsistency between an Order and this Agreement, the terms of the Order shall prevail.

15.2. Governing Law, Jurisdiction and Venue. This Agreement and all Orders shall be governed by the laws of New York, without regard for the conflict of law principles there the above shall be the sole venue to hear controversies arising from or related to this Agreement, and each party consents to the personal jurisdiction of those courts.

15.3. Assignment. Any assignment, transfer or delegation by Publisher of its rights or duties hereunder will be governed by this Agreement, subject to the parties’ termination rights hereunder.

15.4. No Prior Agreements. This Agreement, together with all fully-executed Addenda, attachments and exhibits attached hereto, and all proper Orders, contains every obligation and understanding between the parties regarding the subject matter hereof, and merges and supersedes all prior and contemporaneous agreements and understandings, if any, regarding the subject matter hereof.

15.5. Severability, Rights Cumulative. If any provision herein is held to be unenforceable, the remaining provisions shall remain in full force and effect. All rights and remedies hereunder are cumulative. The Parties represent that they fully acknowledge and agree to the terms of this.