1. INTRODUCTION AND DEFINITIONS. We provide you and, if applicable, Authorized Users, access to our products, services, code, and/or programs (each a “Program”) for your use, subject to your acceptance of and compliance with these Master Terms and Conditions (the “Master Terms and Conditions”), the terms and conditions, if any, of the Programs in which you enroll (each “Program Terms”), and the terms and conditions of any applicable insertion order(s) that you or your Affiliate(s) enter into that specifically references these Master Terms and Conditions and/or applicable Program Terms (each an “Insertion Order”) (collectively, the “Agreement”). In the Agreement, (i) “we,” “us,” and “our” mean Of Eleven Media, LLC. (“OEM”), (ii) a “Of Eleven Media Company” means Of Eleven Media or an Affiliate of Of Eleven Media, (iii) “Of Eleven Media Entities” are the Of Eleven Media Companies and their officers, directors, consultants, contractors, agents, attorneys, employees, third-party service providers, and third parties distributing your ads via the Distribution Network, (iv) “OEM Company Websites” means all the website pages, including any Microsite, that are owned, operated, authorized, or hosted by or for the OEM Companies, (v) “OEM Code” is proprietary software code and related tools that we may offer to you in connection with a Program, and which are part of such Program, (vi) “Distribution Network” means the network of advertising channels, including all forms of media, applications, and devices, through which we distribute ads, whether on or off the OEM Company Websites, (vii) “you” and “your” mean the entity electronically accepting the Agreement, or the company named in an Insertion Order, and any of its Affiliates that execute an Insertion Order for any Program, (viii)“Affiliate” means, with respect to an entity, any other entity that directly or indirectly controls, is controlled by, or is under common control with such entity, (ix) “Authorized Users” means your agents, representatives, contractors, and any person or entity acting or apparently acting on your behalf, and your Affiliates that access a Program without executing their own separate Insertion Order, (x) “Information” is, individually and collectively, all information you provide, use, or approve (including our suggestions) in connection with the Agreement, including all creative, titles, descriptions, trademarks, listings, abstracts, keywords, ad target options, domain names, content of ads, data, data feeds, Selected Ad Groups, Content, and URLs, and (xi) “PII” means personally identifiable information. Terms used but not defined herein have the meanings given to such terms in any Program Terms or Insertion Order, as applicable. Terms used in any Program Terms or Insertion Order, but not defined therein, have the meanings given to such terms in these Master Terms and Conditions. All definitions apply both to their singular and plural forms, as the context may require.
2. CHARGES, FEES, AND PAYMENT. For any Program/License in which you enroll, you will pay us for all charges and fees you incur in connection with each Program/License in the currency indicated by us. Our measurements are the definitive measurements under the Agreement and will be used to calculate your charges. We will either bill your Payment Method for all such charges and fees in connection with each Program or, if we have determined you may be billed on an invoice basis, we will submit an invoice to you at the e-mail or mailing address on the Insertion Order, and you will pay all undisputed charges in full within 15 days of the invoice date. If we agree to your request to send an invoice to a third party on your behalf, such third party will timely pay the invoice, and if such party does not pay the invoice, you will immediately pay all such amounts. If you enroll in a Payment Plan, you will be bound by the Payment Method & Payment Plan Program Terms, below, which may be modified by us from time to time. All payments of service fees, unused promotional credits, and initial deposit(s) are non-refundable and our property. Any disputes about charges to your account(s) must be submitted to us in writing within 30 days of the date you incurred such charge, otherwise you waive such dispute and such charge will be final and not subject to challenge. If you fail to make any payment as set forth herein, you will pay all reasonable expenses (including attorneys’ fees) incurred by us in collecting such charges. Charges and fees do not include any applicable sales, use, value-added, withholding, excise, or any other taxes or government charges, which are payable by you and are in addition to any amounts due to us hereunder. Accounts with no activity for more than 24 months will be closed by us and will be assessed an account closing fee not to exceed the lesser of U.S. $25 (or its equivalent) or the balance in the account. If a balance remains (other than unused promotional credits and initial deposits), we will attempt to refund any portion of such balance that may be owed to you. If we are unable to refund any such balance using your contact information on file with us, we will dispose of the balance pursuant to the Agreement and our policies and procedures.
3. ACCESS. You will not: (i) use any means, including agents, robots, scripts, or spiders to access, monitor, scrape, or manage your account(s) with us, or to access, monitor, scrape or copy the OEM Company Websites or OEM Company systems or any data therein, except those automated means expressly made available by us or authorized by us in advance in writing (e.g., third-party tools approved by us), (ii) bypass any robot exclusion headers on the OEM Company Websites (including using any device, software, or routine to accomplish that goal), (iii) interfere or attempt to interfere with the proper working of the OEM Company Websites, Programs, or OEM Company systems, (iv) use or combine our Programs with software offered under an open source license which create any obligations with respect to our Programs contrary to the Agreement, or grant to any third party any rights to, or immunities under, our intellectual property or proprietary rights in our Programs, or (v) make available to us or our Affiliates any PII of visitors, users, or customers of your website(s) in connection with your access or use of our Program(s). Our Programs, including your password(s) related to your account(s), may not be used by, or made available to, any third party, except Authorized Users. You will promptly notify us in writing if you become aware of a potential breach of security relating to your account(s) with us (e.g., the unauthorized disclosure or use of your username or password). Authorized Users must comply with the Agreement and you are liable for their acts and omissions in connection with the Agreement, and any charges, costs, fees, or expenses they may accrue. You may use data made available to you in connection with a Program, including data that is obtained, collected, or derived as a result of any targeting parameters provided by us, solely for internal use to manage your advertising account(s) with us and you will not publish such data, create profiles of our users, or use such data for retargeting. In order to improve our Programs, we frequently test traffic, implementations, and/or features, and you will pay for all charges as set forth in the applicable Insertion Order or your online account (e.g., impressions, clicks) during those tests. We may redesign or modify the organization, specifications, structure, and/or appearance of any location where your ads may be displayed. Further, we reserve the right to modify or discontinue offering any Program or part thereof. Your Information, Promotions (if applicable), and ads must comply with our policies and specifications, which we may change from time to time. The OEM Companies may provide free clicks, free impressions, ads, credits, and/or discounts, including in connection with contests, incentives, promotions, or donations.
4. YOUR SITE AND INFORMATION. We are not responsible for any aspect of your or any third-party website(s). You represent, warrant, and covenant that: (i) all Information is, and will be updated to remain, current and accurate, and (ii) your Information is either original to you or you have secured all necessary rights and licenses for its use as contemplated by the Agreement, and you are responsible for all royalties, payments, and fees with respect thereto (e.g., performing rights society fees).
5. USE OF INFORMATION. In order to participate in any Program, you grant the OEM Entities a non-exclusive, royalty-free, worldwide license in connection with all Programs to: (i) use, copy, adapt, reformat, recompile, communicate by telecommunication, truncate, edit, and/or modify any part of the Information for public performance, public display, and distribution, (ii) access, index, and cache the website(s) to which your ads link, or any portion thereof, by any means, including web spiders and/or crawlers, (iii) create and display in connection with your ad copies of any text, images, graphics, audio, or video on the websites to which your ads link, and (iv) distribute your ads through the Distribution Network. None of the OEM Entities will have any liability for your ads or Information, including your Selected Ad Groups. A OEM Entity may refuse, reject, cancel, or remove any ad, Information, or space reservation at its discretion at any time. Your ads may be subject to inventory availability, and the final decision as to ad relevancy is at our discretion. We do not guarantee that your ads will be placed in, or available through, any part of the Distribution Network, nor do we guarantee that your ads will appear in a particular position or rank.
7. REPRESENTATIONS. You represent, warrant, and covenant that: (i) you have the right and/or authority to enter into the Agreement, (ii) you are a business, not a consumer, (iii) all Information is free of viruses and/or other computer programming routines that may damage, interfere with, or expropriate any OEM Company system data or information, (iv) a click on your ad will not: cause damage to a user’s computer, download a software application, change a user’s settings, or create a series of sequential, stand-alone advertisements (including by pop-up or pop-under window), (v) you will not engage in, nor cause others to engage in, spamming or improper, malicious, or fraudulent clicking, impression, or marketing activities relating to any Program, (vi) your Information, ads (including products and services referenced therein), the website(s) to which the ads link, all emails, newsletters, and other materials and technology in connection therewith, any tools or code you use or make available in connection with a Program, and/or any act or omission by you relating to a Program: (a) do not violate any applicable law, statute, directive, ordinance, treaty, contract, regulation, or OEM Company policies or guidelines (collectively, “Laws”), (b) do not infringe any copyright, patent, trademark, trade secret, or other intellectual property right of any person or entity, (c)do not breach any duty toward, or rights of, any person or entity, including rights of publicity and/or privacy, and (d)are not false, deceptive, or libelous, (vii) you will not reverse engineer, disassemble, reconstruct, decompile, copy, or create derivative works of any Program, or any aspect or portion thereof, (viii) you will comply with any trade sanction, and/or import or export regulation that applies to your use of our Programs and obtain all necessary licenses to use, export, re-export, or import our Programs as applicable, and (ix) you will not provide access to the Programs, except to Authorized Users, who are bound in writing by use and confidentiality restrictions which are no less protective of us than those contained in the Agreement.
8. INDEMNIFICATION. You will indemnify, defend, and hold harmless the OEM Entities from all claims, whether actual or alleged (collectively, “Claims”), that arise out of or in connection with your Information, publications and/or ads, your or Authorized Users’ use of any Program, OEM Company system, or OEM Company Website, your website, or your or Authorized Users’ breach of the Agreement. You are solely responsible for defending any Claim against a OEM Entity, subject to such OEM Entity’s right to participate with counsel of its own choosing, and for payment of all judgments, settlements, damages, losses, liabilities, costs, and expenses, including reasonable attorneys’ fees, resulting from all Claims against a OEM Entity, provided that you will not agree to any settlement that imposes any obligation or liability on a OEM Entity without its prior express written consent.
9. WARRANTY DISCLAIMER. THE PROGRAMS, DISTRIBUTION NETWORK, DATABASES, OEM COMPANY SYSTEMS, OEM COMPANY WEBSITES, OEM CODE, AND DOCUMENTATION ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTY, REPRESENTATION, CONDITION, OR GUARANTEE OF ANY KIND, EXPRESS OR IMPLIED, AND YOUR USE THEREOF IS AT YOUR OWN RISK. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, WE AND YOU DISCLAIM ON BEHALF OF EACH OF OURSELVES (AND IN OUR CASE, ALL OEM ENTITIES) ANY AND ALL WARRANTIES, REPRESENTATIONS, CONDITIONS, OR GUARANTEES, INCLUDING ANY WARRANTIES OF TITLE, MERCHANTABILITY, SERVICE QUALITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
10. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANY LIABILITY OF THE OEM ENTITIES IN CONNECTION WITH THE AGREEMENT, UNDER ANY CAUSE OF ACTION OR THEORY, WILL BE STRICTLY LIMITED TO THE LESSER OF THE AMOUNT ALREADY PAID BY YOU TO US PURSUANT TO THE AGREEMENT IN THE SIX-MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE CLAIM AND U.S. $250,000 (OR ITS EQUIVALENT). IN NO EVENT WILL ANY OEM ENTITY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF, OR IN CONNECTION WITH, THE AGREEMENT. YOU WILL NOT HOLD A OEM COMPANY RESPONSIBLE FOR THE SELECTION OR RETENTION OF, OR ANY ACTS, ERRORS, OR OMISSIONS BY, ANY THIRD PARTY IN CONNECTION WITH THE AGREEMENT, INCLUDING WITH RESPECT TO CLICKS AND/OR IMPRESSIONS BY ANY THIRD PARTY ON YOUR ADS OR IN YOUR PUBLICATIONS REGARDLESS OF THE INTENT OF SUCH THIRD PARTY.
11. TERMINATION. At any time, for any or no reason, you or we may terminate the Agreement and/or your participation in any Program, and we may suspend or limit your participation in any Program or part thereof, including removing your ads, account access and/or publications. The OEM Entities will not have any liability regarding the foregoing decisions. Upon termination of any Program Terms or the suspension or discontinuation of any Program or your participation therein, your outstanding payment obligations incurred under such Program will become immediately due and payable. Sections 2, 3 (second, fourth, and fifth sentences only), 4 (ii only), and 5 through 15 of these Master Terms and Conditions, the defined terms of the Agreement, and those provisions specified in any Program Terms will survive termination of the Agreement.
12. NOTICES. We may give notices to you by posting on any OEM Company Websites, or by email to the address provided by you. You must ensure that your contact and account information is current and correct, and promptly notify us in writing of any changes to such information. You will send all notices to us via recognized overnight courier or certified mail, return receipt requested, to: General Counsel, OEM Inc., 7583 Seashell Crest Lane, Lake Worth, FL 33467
13. CHOICE OF LAW; VENUE. The terms of the Agreement and any dispute relating thereto or between you and us will be governed by the laws of the State of Florida, without regard to conflict/choice of law principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the Agreement. You agree to submit to the exclusive jurisdiction of the state and federal courts located in Palm Beach County or Sarasota County, Florida. Any claim against us will be adjudicated on an individual basis and will not be consolidated in any proceeding with any claim or controversy of any other party.
14. OTHER. The Agreement constitutes the entire agreement and understanding between you and us regarding the subject matter contained herein and supersedes all proposals, representations, claims, and communications in all forms of media (including all instructions, advertisements, messages, and policies), written and oral, regarding the subject matter contained herein. No terms or conditions other than those set forth in these Master Terms and Conditions, any Program Terms, or Insertion Order(s) will be binding on us unless expressly agreed to in writing by us. The terms of any specific Program Terms govern only that Program, and not any other Program, except as specifically referenced in such Program Terms. If there is a conflict between the Master Terms and Conditions, any Program Terms, and any Insertion Order, the conflict will be resolved according to the following order of precedence: (1) Program Terms, (2) Master Terms and Conditions, and (3) Insertion Order. Notwithstanding the foregoing, an Insertion Order may amend the Master Terms and Conditions and/or the applicable Program Terms only if the amended terms contained in such Insertion Order: (i) apply only to the account(s) listed in the Insertion Order, (ii) apply only to that Insertion Order and not to any other Program or Insertion Order(s), and (iii) specifically identify the provision(s) of the Program Terms or the Master Terms and Conditions they amend. Only a written instrument specifically waiving compliance that is executed by whichever of you or us is entitled to waive such compliance may waive any term(s) and/or condition(s) of the Agreement. No waiver by you or us of a breach of any provision hereof will be deemed a waiver of any other breach of such provision or a waiver of the provision. If any provision of the Agreement is held or made invalid or unenforceable for any reason, such invalidity will not affect the remainder of the Agreement, and the invalid or unenforceable provision will be replaced by a valid provision that has a similar economic effect. Except for your payment obligations, neither we nor you will have any liability under the Agreement by reason of any failure or delay in the performance of our or your obligations on account of strikes, shortages, riots, acts of terrorism, insurrection, fires, flood, storm, explosions, earthquakes, Internet and/or electrical outages, computer viruses, acts of God, war, governmental action, or any cause that is beyond our or your reasonable control. You and we are independent contractors and nothing in the Agreement will be construed to create, evidence, or imply any agency, employment, partnership, or joint venture between you and us. Except as otherwise set forth in the Agreement, neither you nor we will have any right, power, or authority to create any obligation or responsibility on behalf of the other and the Agreement is not intended to benefit, nor will it be deemed to give rise to any rights in, any third party. Notwithstanding the foregoing, you acknowledge and agree that the OEM Companies will be third-party beneficiaries to the Agreement and will be entitled to directly enforce, and rely upon, any provision in the Agreement which confers a benefit on, or rights in favor of, them. You may not assign, sublicense, or transfer the Agreement or any right or duty under the Agreement. Any assignment, transfer, or attempted assignment or transfer in violation of this Section 14 will be void and of no force or effect. We and our subsequent assignees may assign, delegate, sublicense, or otherwise transfer from time to time the Agreement, or the rights or obligations hereunder, in whole or in part, to any person or entity such as to our Affiliate(s). The Programs are proprietary to us and are protected by the applicable state, federal, and international intellectual property laws and we retain all rights, title, and interests in the Programs, together with all derivative works, modifications, enhancements, and upgrades, but excluding your Information. Any rights not expressly granted in the Agreement are reserved by you or us, as applicable, and all implied licenses are disclaimed. As used in the Agreement, the word “including” is a term of enlargement meaning “including without limitation” and does not denote exclusivity, and the words “will,” “shall,” and “must” are deemed to be equivalent and denote a mandatory obligation or prohibition, as applicable. We may change the Agreement at any time by posting such on the applicable OEM Company Website or by email, and such revised Agreement will supersede and replace the earlier Agreement. In each instance in the Agreement wherein we reserve the right to change policies or specifications related to advertising, you will only be held to such changes if we provide them to you or make them conspicuously available to you. Services and obligations to be performed by us hereunder may be performed by other OEM Companies and/or third-party service providers.
15. REPRESENTATIVE. If you are an advertising agency, search engine marketer, reseller, or other entity representing Advertisers (“Representative”), this Section applies, and in such case, “you” and “your” mean Representative, any Affiliates of Representative who execute an Insertion Order, together with Advertisers. “Advertiser” means an entity (including a sole proprietor) which is/will be enrolled in a Program by you. a. Representative represents, warrants, and covenants that: (i) it is the authorized agent of the Advertiser and has the legal authority to enter into the Agreement on behalf of the Advertiser, make all decisions, and take all actions relating to the Advertiser’s accounts, (ii) by Representative executing an Insertion Order or otherwise enrolling an Advertiser in a Program, the Advertiser is also entering into the Agreement, (iii) Representative will not, without our prior written consent: (a) make any representation, guarantee, condition, or warranty concerning any Program or OEM Entity, including that Representative is an affiliate or partner of a OEM Entity, (b) make any commitments (e.g., guarantees as to placement of ads) to an Advertiser or potential Advertiser regarding any Program, (c) negotiate any terms or conditions related to the Programs which may affect the rights, protections, and/or obligations of a OEM Entity, and/or that are inconsistent with the Agreement, or (d) engage in any telesales or telemarketing in connection with any Program, and (iv) Representative will perform its duties pursuant to the Agreement in a professional manner consistent with the requirements established by us. Upon our request, Representative will immediately deliver to us each agreement that designates Representative as the Advertiser’s agent and authorizes Representative to act on the Advertiser’s behalf in connection with the Agreement. In the event of a termination of your relationship with an Advertiser, such Advertiser may continue to use the Information, including account and performance history with respect to its ads, and Representative will no longer have API Access for such Advertiser’s accounts. Representative will not at any time use data or information received in connection with the Agreement (a) to conduct any marketing efforts targeted at our existing advertisers, or (b) with an Advertiser other than the one in connection with which the data or information was received. b. Payment Liability. We will hold Representative liable for payments under Section 2, above, solely to the extent Representative has received payment from such Advertiser; for sums not received by Representative, we will hold the Advertiser solely liable (“Sequential Liability”); provided, however, (i) if we do not offer credit to the applicable Advertiser or if we have not offered Representative Sequential Liability in a particular country, we will notify you of such rejection prior to the start of the applicable campaign (email acceptable), and in such case, if you elect to proceed with the campaign, and unless otherwise agreed upon in writing between or among Representative or Advertiser, on the one hand, and us, on the other hand, Representative and each Advertiser will be jointly and severally liable for all payment obligations pursuant to Section 2, above, and you hereby waive any Law that may require us to proceed against one or more of you prior to proceeding against any others who may also be liable, and/or (ii) if Representative (x) breaches or allegedly breaches Section 15a.(i), above, or (y) fails to comply with our request to confirm whether an Advertiser has paid to it in advance funds sufficient to make payments pursuant to Section 2, above, Representative will be obligated to immediately pay all such amounts due us regardless of whether it has received payment from such Advertiser. You acknowledge that we may directly contact any Advertiser represented by Representative, including if we have not received payment for such Advertiser’s account within 60 days from the date of the applicable invoice. C. Governmental Compliance. Advertisers guarantee their entity, ads and actions comply with all state, federal and international laws.
16. ELECTRONIC SIGNATURES EFFECTIVE. a. By clicking on the “I Accept” or similar button, you create an electronic signature to the Agreement, establishing a contract. In doing so, you agree to accept these terms and conditions and any other agreement contained or referenced herein; you also agree that we may supply you a copy of the Agreement in electronic form. Please print or save a copy of the Agreement for your records. You also may choose to receive a copy of the Agreement in non-electronic form at any time by submitting a request to us at the address set forth in Section 12, above. b. You may choose to withdraw your consent to receive the Agreement in electronic form. Withdrawing your consent to receive the Agreement in electronic form does not change your existing obligations to us under the Agreement. Instead, withdrawing your consent simply means that you wish to have our relationship with you governed by a non-electronic form of the Agreement. If you wish to withdraw your consent to receive the Agreement in electronic form and to instead enter into a non-electronic form of the Agreement, please send a letter and self-addressed, stamped envelope to the address set forth in Section 12, above. We then will send you a non-electronic form of the Agreement. Your withdrawal of consent will become effective when we mail to you a copy of the non-electronic form of Agreement, at which point our relationship will be governed by the terms of such Agreement. In either instance, the obligations that you incur pursuant to the electronic form of the Agreement, prior to the effective date of the withdrawal of your consent, will remain unchanged until they are fully discharged by you. c. In order to access and retain the electronic Agreement, you must have access to the Internet, either directly or through devices that access Web-based content, and pay any charges associated with such access. In addition, you must use all equipment necessary to make such connection to the Internet (e.g., a computer and modem or other access device). We will notify you of any changes in the hardware or software requirements needed to access and/or retain the Agreement that create a material risk that you will not be able to continue to access and/or retain the electronic Agreement.
PAYMENT METHOD PROGRAM TERMS – If you participate in the Payment Method Program in a particular country, the following Program Terms apply, and are governed by the Master Terms and Conditions, above.
1. BILLING AND PAYMENT METHOD. When you supply us with a method of payment such as a credit card, charge card, or bank account (“Payment Method”) in connection with a Program, you participate in the “Payment Method Program” and you authorize us to bill your Payment Method pursuant to these Payment Method Program Terms for any and all charges and fees you incur in connection with that Program, including recurring payments. The types of Payment Methods that we accept and the timing of the billing of the charges and fees may vary according to the Program and country; however, we do not knowingly accept debit cards and you should not provide a debit card as a form of payment. The terms of your Payment Method are determined by an agreement(s) between you and your financial institution.
2. AUTHORIZATION. You agree to keep your Payment Method information on file with us current (such as your address, card or account number, and expiration date, if any), and you also authorize us to update your Payment Method information with data we obtain from your financial institution, the issuer of your credit card or charge card, or from MasterCard, Visa, American Express or Discover. You authorize us to retain your Payment Method information until such time as you revoke this authorization in accordance with procedures prescribed by us. Any revocation by you of this authorization will become effective: (a) if your Payment Method is a credit or charge card, when all charges and fees associated with your use of the Programs have been fully satisfied, as determined by us; or (b) if your Payment Method is a bank account, after three (3) business days. Your revocation of this authorization will have no effect on your liability for charges and fees that you have incurred in connection with your use of a Program prior to such revocation.
3. EFFECTS OF TERMINATION. Sections 2 (third and fourth sentences) and 3 of these Payment Method Program Terms will survive any termination of these Payment Method Program Terms.
PAYMENT PLAN PROGRAM TERMS– If you participate in the Payment Plan Program in a particular country, the following Program Terms apply, and are governed by the Master Terms and Conditions, above.
1. PAYMENT METHODS. If you use a Payment Plan, you authorize us to bill your Payment Method for all charges and fees in connection with each Program as specified by the Payment Plan you select (“Payment Plan Program”). Unless and until you or we discontinue your enrollment in a payment plan (“Payment Plan”), your preauthorization for billing your Payment Method is valid until the termination of the Agreement or the discontinuation of the Payment Plan by us or your participation therein. We will send a notification to the e-mail address associated with your Program account(s) after each preauthorized transaction to notify you that your account(s) has been replenished and your charges and fees have been paid. Such payments should appear on the periodic statement sent to you by the provider of your Payment Method. We reserve the right to modify, suspend, or terminate your right to prepay, any Payment Plan, and/or your participation therein at any time. If we modify a Payment Plan, notification will be posted on a OEM Company Website or you will be notified by e-mail. If you do not consent to such modified terms, you may elect to discontinue your enrollment in a Payment Plan at any time by providing written notice to us before the effective date of such modified terms. Your non-termination or continued use of a Program reaffirms that we are authorized to bill your Payment Method automatically and constitutes your acceptance of the terms of any such modified terms. In connection with a Payment Plan, you agree that if your charges equal or exceed your payment, then your publications and/or ads may be removed and you will incur a debit balance for the amount of any unpaid charges incurred under your account(s), including any amounts accrued prior to the time your ads and/or publications are actually removed. Charges will be posted to your account and must be paid before resumption of your ads and/or publications.
PAYMENT OF ADVERTISING SALES INCOME – If you are a license of MagTitan software you may receive a percentage of Ad Sales Income. When your ad commission income is above $50 in any month, you will receive a payment as described below. Balances below $50 will be held until the threshold is reached.
1. SALES INCOME PAYMENT. All Sale Income commissions will be calculated on a monthly basis and commissions will be paid on the 15th of the month following when the sales were recorded.
2. SALES INCOME RESERVE. To protect all parties from credit card chargebacks, OEM places 10% of all publisher ad sales income into a reserve account for a period of 60 days. At the end of the 60-day reserve period, OEM remits payment of the full amount held in reserve, with the publisher’s monthly commission payment. Publishers remain fully responsible for their total portion of chargebacks, even if they exceed the withholding amount.
3. EFFECTS OF TERMINATION. None of the terms and conditions of these Payment Plan Program Terms will survive the termination of these Payment Plan Program Terms or the applicable Program Terms.
[ MAGAZINE AND PUBLICATION PROGRAM TERMS– If you participate in the Magazine and Publication Program, the following Program Terms apply, and are governed by the Master Terms and Conditions, above.
2. LICENSE. In connection with the MagTitan platform, you have purchased a non-exclusive, royalty-free, worldwide license. User agrees to not copy, sublicense, encode, store, archive, distribute transmit, modify, the software in any manner in whole or in part.
5. TERMINATION; EFFECTS OF TERMINATION. Notwithstanding Section 11 of the Master Terms and Conditions, you may not terminate a MagTitan Order related to a publication license. In the event of a termination of the MagTitan Program Terms, all terms and conditions of these MagTitan Program Terms will survive until such time as all Insertion Orders related to a MagTitan have ended; provided, however, the grants and rights with respect to User-Generated Content described in Section 2, above, will not terminate. Sections 4 and 5 of these MagTitan Program Terms will survive termination of these MagTitan Program Terms.
API ACCESS PROGRAM TERMS – If you participate in the API Access Program in a particular country, the following Program Terms apply, and are governed by the Master Terms and Conditions, above.
1. USE. If we grant you API Access in connection with a Program (“API Access Program”), API Access will be considered part of such Program. “API Access” is the ability, via the API Code, to access certain Program account information and/or features, and to execute commands for your Program account(s). You may not use your API Access, including any data obtained therefrom, for purposes other than managing your Program account(s) to which the API Access relates. In the event your use of a Program terminates, your API Access to such Program will terminate immediately. We may limit, modify, or terminate your API Access, in our discretion, at any time, and such modifications may require you to make changes, at your expense, to the API Code for continued API Access. “API Code” is software enabling API Access created by you or us using an XML/SOAP interface we specify. You may not use API Access pursuant to this section if you are party to another agreement with a OEM Company that provides for such access.
2. CODE. If we give you OEM Code, either the API Code itself or software to be incorporated into the API Code developed by you, we grant you a non-exclusive, revocable, non-transferable, non-sublicensable, limited, internal-use license to use the OEM Code given to you by us solely for API Access. Upon our request, you will make the API Code available to us for our review, and notify us of the features and functionality of such API Code and the application to which the API Code connects. Your use of API Access must not place an unreasonable or disproportionately large load on our systems (as determined by us) or exceed access frequency limits set by us from time to time.
3. COMMERCIAL LICENSE PROGRAM. If Section 15 of the Master Terms and Conditions applies to you, the API Access Program gives Representative, and not the Advertiser(s), API Access, and you are further bound by the Enterprise Web Services Commercial License Program Terms located at http://info.OEM.com/legal/us/OEM/advertising/ewsprogramterms/ewsprogramterms-1010.html, which may be modified by us from time to time.
4. EFFECTS OF TERMINATION. None of the terms and conditions of the API Access Program Terms will survive the termination of these API Access Program Terms or the Program Terms of the Program for which you have been granted API Access.
ANALYTICS PROGRAM TERMS– If you participate in the Analytics Program in a particular country, the following Program Terms apply, and are governed by the Master Terms and Conditions, above.
1. USE. We may provide you with Analytics in connection with a Program(s) for your use (“Analytics Program”). “Analytics” is OEM Code for insertion on your webpages to enable the analytical tools available for your account. Provided that you install Analytics, OEM Code will be delivered into the Internet browser of visitors to your website(s) during their interaction with your website(s). Subject to the terms of the Agreement, we grant you a non-exclusive, revocable, non-transferable, non-sublicensable, limited, internal-use license for use with your Program account to use, execute, and display Analytics on your website. During the Analytics set-up process, we may append certain parameters to the URL associated with your ad to enable the Analytics Program. You may not edit or delete such parameters, which would prevent the proper functioning of Analytics and would render impaired or inaccurate results. In connection with the Analytics Program, you may not, directly or indirectly, transmit to a OEM Entity any PII of the visitors to your website(s).
3. EFFECTS OF TERMINATION. Upon termination of these Analytics Program Terms or the Program Terms of the Program for which you have been provided Analytics, (i) you must promptly remove or have removed the Analytics from your website(s) and anywhere else they appear under your control, and (ii) Section 2(i), above, will survive.
DISPLAY ADVERTISING PROGRAM TERMS– If you participate in the Display Advertising Program in a particular country, the following Program Terms apply, and are governed by the Master Terms and Conditions, above.
1. PROGRAM USE. We provide you access to our Program for display advertising (“Display Advertising Program”) for your use. You will pay for all impressions and/or clicks on your ads that we deliver. “Preemptible Ads” are ads which are displayed on a space-available basis and are not guaranteed to appear in the Distribution Network, and are designated as such in an Insertion Order. Except with respect to Preemptible Ads, (i) the last sentence of Section 5 of the Master Terms and Conditions does not apply to ads distributed under the Display Advertising Program, and (ii) we will use commercially reasonable efforts to deliver impressions in the amounts and locations by the end of the period specified in an Insertion Order, as applicable. Your ads must comply with our then current policies and specifications located at http://adspecs.OEM.com/policies.php, which we may change from time to time. If you are acting as an ad network, Section 15 of the Master Terms and Conditions applies, and you must also comply with the policies set forth at http://adspecs.OEM.com/policies.php#yan-policies, which we may change from time to time. A “Sponsorship” is an exclusive advertiser-branded presence on a webpage(s) for a period of time specified in an Insertion Order or elsewhere, which may include hard-coded logos, custom-skinned pages, custom ad units or modules, modified content or layout, or other similar customizations to an existing webpage(s). [SG4]
2. PLACEMENT OF ADS. If your Information, including any updates, is not given to us three (3) days prior to its anticipated distribution or does not conform to our policies and specifications, (i) we are not required to fulfill the guaranteed portion(s) of the Insertion Order, and (ii) you are still responsible for the media purchased pursuant to the Insertion Order. We may optimize your campaign by modifying the line items of an Insertion Order. We must approve in advance in writing the serving of ads by anyone other than us. For ads in an Insertion Order that specify frequency caps, we will use commercially reasonable efforts to comply with such frequency caps, provided that you agree that we are not liable if your ads are viewed in excess of the frequency cap. For dynamically priced campaigns, we may adjust the location of, and price for, your ads in an effort to meet your target goals (e.g., CPC, CPA, or CPL).
3. MAKE GOODS. Except for Preemptible Ads, if we fail to deliver, by the end of the period specified in an Insertion Order, the publications or aggregate number of impressions as agreed in the Insertion Order (subject to any reductions permitted under Section 2, above) or the impressions are delivered in the wrong location, then (i) for purposes of this Section 3 of the Display Advertising Program Terms only, the first sentence of Section 10 of the Master Terms and Conditions does not apply, and (ii) your sole and exclusive remedy is limited to the following, which we will mutually agree upon: (a) a refund of the charges representing the impressions that were undelivered or delivered to the wrong location, (b) delivery of the impressions at a later time in a comparable position as determined by us, and/or (c) an extension of the term of the Insertion Order with a refund representing any remaining undelivered impressions at the end of such extended term.
b. Use of Data. Unless otherwise authorized by us, you will not: (i) use IO Details, Performance Data, or Site Data for Repurposing; provided, however, that Performance Data may be used for Repurposing so long as it is not joined with any IO Details or Site Data; (ii) disclose our IO Details or Site Data, except as a Transferring Party. Unless otherwise authorized by you, we will not: (A) use or disclose your IO Details, Performance Data, or a user’s recorded view or click of an ad, each of the foregoing on a non-Aggregated basis, for Repurposing or any purpose other than performing under an Insertion Order, compensating data providers in a way that precludes identification of you, or internal reporting or internal analysis, or (B) use or disclose any User Volunteered Data in any manner other than in performing under an Insertion Order. You and we (each a “Transferring Party”) will require any third party or Affiliate used by the Transferring Party in performance of the Insertion Order on behalf of such Transferring Party to be bound by confidentiality and non-use obligations at least as restrictive as those on the Transferring Party, unless otherwise set forth in the Insertion Order.
5. TERMINATION; EFFECTS OF TERMINATION. Notwithstanding Section 11 of the Master Terms and Conditions, you may only cancel ads prior to their display. Licenses, once used may not be refunded. Licenses receiving pre-pay discounts may be refund at the discretion of Of Eleven Media, less improperly earned discounts. Sections 3, 4, and 5 of these Display Advertising Program Terms will survive termination of these Display Advertising Program Terms.
SELF-SERVE DISPLAY ADVERTISING PROGRAM TERMS – If you participate in the Self-Serve Display Advertising Program, in addition to the Display Advertising Program Terms, the following Program Terms apply, and are governed by the Master Terms and Conditions, above.
1. ACCESS. We provide you access to our Program for the creation of certain display advertisements (the “Self-Serve Display Advertising Program”) for your use.
2. PAYMENT & PAYMENT PLAN. The following is added to end of Section 2 of the Payment Plan Program Terms: Self-Serve Display Advertising Program Payment Plan: When you enroll in our Self-Serve Display Advertising Program, you are automatically subject to the Self-Serve Display Advertising Program Payment Plan (“SSDAPPP”). You may only use the SSDAPPP to pay for charges arising directly from the Self-Serve Display Advertising Program. Under the SSDAPPP, you authorize us to obtain a pre-approval from your Payment Method up to the amount of one day’s campaign budget. For your first campaign, your Payment Method will be billed for all accrued charges on the first business day after such campaign incurs any charges. Thereafter, your Payment Method will be billed for all accrued charges on the earlier of (a) each time such charges reach U.S. $300, or (b) the first and/or the 16th day of the month, regardless of the dollar value of such charges.
3. EFFECTS OF TERMINATION. Sections 2 and 3 of these Self-Serve Display Advertising Program Terms shall survive any termination of these Self-Serve Display Advertising Program Terms until such time you have paid in full all outstanding charges incurred under the Self-Serve Display Advertising Program.
FOREIGN MANAGEMENT PROGRAM TERMS– If you participate in the Foreign Management Program, the following Program Terms apply, and are governed by the Master Terms and Conditions, above.
1. USE. We provide you access to our Program for management of foreign advertising accounts (“Foreign Management Program”) for your use. If you request, or we provide, account management, editorial recommendations, and/or other services in connection with your separate advertising account(s) with a non-OEM Company (e.g., OEM Japan), or (ii) a OEM Company located outside of the United States, Canada, Mexico, Argentina, and/or Brazil ((i) and (ii), collectively, are “Foreign Entities”), you are enrolling in the Foreign Management Program and authorize us to act on your behalf in connection with any advertising you place, or seek to place, with a Foreign Entity. The terms and conditions of any advertising placed with a Foreign Entity and managed through this Program may be subject to an insertion order and separate terms and conditions imposed by the Foreign Entity, for which you will remain solely responsible despite your participation in the Foreign Management Program.
2. SCOPE OF MANAGEMENT. You agree that in connection with the Foreign Management Program, (i) we may share your Confidential Information with the applicable non-OEM Company, (ii) we may take any actions necessary in furtherance of your advertising objectives, and (iii) we will have no liability for the underlying advertising product(s) or service(s) provided by any Foreign Entity. The last sentence of Section 13 of the Master Terms and Conditions does not apply to the Foreign Management Program.
3. EFFECTS OF TERMINATION. Sections 1 (second and third sentences only), 2, and 3 of these Foreign Management Program Terms will survive any termination of these Foreign Management Program Terms.
[S* * *
The Agreement, including the Master Terms and Conditions and Program Terms, was last updated on January 5, 2017