Affiliate Network Publisher Agreement

Please see the Definitions in the Definition of Terms Addendum attached hereto for a list of legal definition of terms.   See the Glossary, posted on ValueClick Media’s Website, for a definition of commonly used terms.

ValueClick Media, a division of ValueClick, Inc., (“ValueClick”), and _________________________________ (“Publisher”), enter into this Affiliate Network Publisher Agreement (“Agreement”) to establish the terms and conditions by which Publisher may enter the ValueClick network of affiliates  (the “Network”) and market advertisements on behalf of ValueClick advertiser customers (“Advertisers” or “Customers”).  ValueClick and Publisher agree as follows:

1. ValueClick Affiliate Network

(a)  Membership.   Membership in the Network is subject to prior approval by ValueClick. ValueClick reserves the right to refuse Service to any new or existing Publisher for any reason, in its sole discretion.  ValueClick reserves the right, in its sole discretion and without liability, to reject, omit or exclude any Publisher or Website for any reason at any time with or without notice to the Publisher and regardless of whether such Publisher or Website was previously accepted.  Without limiting the foregoing, ValueClick reserves the right to require a potential or existing Publisher to submit detailed descriptions or explanations of the Publisher’s Website(s), email(s) or application(s) functionality and back-end technology through a questionnaire or survey.  This Agreement is voidable by ValueClick immediately if Publisher fails to disclose, conceals or misrepresents itself in any way.

(b)  ValueClick Websites.   For purposes of this Agreement, all Websites that are owned, operated or hosted by or on behalf of ValueClick, including, without limitation, ValueClick's branded Websites at http://www.valueclick.com, http://www.valueclickmedia.com, http://www.vcmdirect.com, and including the website through which the Service is accessed pursuant to this Agreement (“ValueClick Site”), are referred to herein collectively as the "ValueClick Websites."  Publisher agrees that it will not use the ValueClick Websites or any content therein or data obtained therefrom for any purposes other than to fulfill this Agreement and that Publisher will not disseminate any of the information contained on ValueClick Websites.  Publisher agrees that it will not use any automated means, including, without limitation, agents, robots, scripts, or spiders, to access or manage Publisher’s account with ValueClick or to monitor or copy the ValueClick Websites or the content contained therein except via automated means expressly made available by ValueClick, if any, or authorized in advance and in writing by ValueClick (for example, ValueClick-approved third-party tools and services).  The ValueClick Websites contain robot exclusion headers and Publisher agrees that it will not bypass ValueClick's robot exclusion headers (including using any device, software or routine to accomplish that goal), or to interfere or attempt to interfere with the proper working of the ValueClick Websites or any program thereon, or the ValueClick system.  Without limitation to the foregoing, Publisher further agrees that it will not take any action that imposes an unreasonable or disproportionately large load on the ValueClick Websites, any programs thereon, or ValueClick's infrastructure, as determined by ValueClick.

(c)  Services.  ValueClick shall provide the service (the “Service”), which includes placing offers of advertising programs and associated creative(s) of the ValueClick’s advertisers and/or merchants (the “Advertisers”) on the ValueClick Site (“Program(s)”) and reporting.  The Program elected by Publisher on the ValueClick Site shall include all of Advertiser’s materials required by its Program, including any creatives and disclosures, and Publisher shall be subject to the amount and terms for payment applicable to such Program.  ValueClick shall require Publisher to maintain the ValueClick Code within the Advertiser’s Program.  Publisher understands and agrees that from time to time the ValueClick Service hereunder may be inaccessible, unavailable or inoperable for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which ValueClick may undertake from time to time; or (iii) causes beyond the control of ValueClick or which are not reasonably foreseeable, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks, the unavailability, operation, or inaccessibility of Websites or interfaces, network congestion or other failures.  While ValueClick will attempt to provide the Service on a continuous basis, Publisher acknowledges and agrees that ValueClick has no control over the availability of the Service on a continuous or uninterrupted basis.  Failure to deliver because of technical difficulties does not represent a failure to meet the obligations of this Agreement.  ValueClick reserves the right to discontinue offering any of the ValueClick systems, any Program and/or ValueClick Website at any time.

2. Prohibited Conduct

Publisher may not promote any Programs utilizing any Prohibited Conduct.  “Prohibited Conduct” is defined as:

(a)  Ad Placement & Tracking.  With respect to each Program, Publisher shall not: (1) promote any Program using fraudulent means.  “Fraudulent means” include, but are not limited to: (i) adding leads or clicks through fraudulent traffic generation, such as pre-population of forms or via other such mechanisms not approved by ValueClick, (ii) using “impression spam” – the frequent or automated searching of a search term use to reduce competitors’ click-through rates on their advertisements in conjunction with paid search campaigns, (iii) altering the creative materials of any Program in any way, unless authorized in writing by ValueClick; however, Publisher my resize the creative if necessary without prior approval from ValueClick unless it materially alters the creative; (iv) any illegal activity whatsoever under any applicable laws, rules or regulations, (iv) fake blogs; (2) place Programs on blank web pages or on Websites with no content; (3) place Programs on non-approved websites, web pages or emails, or in such a fashion that may be deceptive to a web user (“User”); (4) incentivize offers or create the appearance to incentivize offers unless otherwise specified on the IO; (5) lace statements near the Program requesting that Users "click" on the related advertisement (i.e., "Please click here") or "visit" the sponsor (i.e., "Please visit our sponsor"); (6) place misleading statements near the related advertisement of a Program (i.e., "You will win $5,000."); (7) redirect traffic to a Website other than that listed by the particular Advertiser; (8) ask Users to take advantage of other advertisements or offers other than those listed by the particular Advertiser; (9) provide the Program using any downloadable applications without the prior written approval of ValueClick, which, if provided, is subject in each case to the following condition: Programs delivered in approved downloadable applications may only be shown once per User session when the application is active, enabled and clearly recognizable by the end User as being active and enabled.  Serving Programs at any time when the downloaded application is not active is strictly prohibited and grounds for immediate termination without pay; (10) use invisible methods to generate impressions, clicks, or transactions that are not initiated by the affirmative action of the User; (11) attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the Website tags, source codes, links, pixels, modules or other data provided by or obtained from ValueClick that allows ValueClick to measure Program performance and provide its Service; (12) place Programs on any site that includes spawning process pop-ups or that causes more than one op-up window to appear; (13) promote any Programs in any email messages that constitute “Unsolicited Commercial Mail” which shall mean: (i) all email so defined or similarly defined by any applicable laws, rules and regulations of any applicable country and/or industry standard as set forth by self-regulating authorities such as Spamhaus, (ii) email messages with fraudulent or deceptive “from” or “subject” lines (including the alteration of “from” or “subject” lines where the Program terms set forth “from” and “subject” lines to be used), (iii) fraudulent or deceptive headers, and (iv) fraudulent or deceptive initiating IP addresses, (14) no personally identifiable information of any User pursuant to any registration or co-registration process shall be pursuant to a forced opt-in (i.e. automatic subscription to a newsletter without authorized consent by the User or a pre-checked consent box) and shall only be pursuant to a confirmed opt-in, which is the use of a means to obtain verifiable permission that the recipient(s) of email advertisement(s) and/or newsletter(s) have agreed to subscribe or enroll in a list or newsletter by confirming (responding to) a subscription verification email; and (15) no personally identifiable information of any User nor email recipient shall be transmitted to ValueClick.  All leads that are generated in accordance with the IAB Online Lead Generation B2C and B2B Best Practices for U.S.-based Advertisers and Publishers (http://www.iab.net/iab_products_and_industry_services/508676/email_lead/1476) will be considered billable.

 (b). Websites.  Publisher shall not place any Network IP nor Programs on Websites or emails that contain, promote, reference or have links to: (1) profanity, sexually explicit materials, hate material, promote violence, discriminatory content, status, or any other materials deemed unsuitable or harmful to the reputation of ValueClick; (2) software piracy (including but not limited to warez, cracking, etc.), hacking, phreaking, emulators, ROM’s, or illegal MP3 activity; (3) illegal activities, deceptive practices or violations of the intellectual property or privacy rights of others; (4) personal web pages, non-English language pages, or free hosted pages (i.e. Geocities, Xoom, Tripod, Talk City, etc.); (5) websites under construction, hosted by a free service, personal home pages, or that do not own the domain they are under; (6) promote activities generally understood as Internet abuse, including but not limited to, the sending of unsolicited bulk electronic mail or the use of Spyware.   For purposes hereof, “Spyware” shall mean computer programs or tools that (i) alter a computer User’s browser or other settings or use an ActiveX control or similar device to download ad supporting software without providing fair notice to and obtaining affirmative consent; (ii) prevent a computer User’s reasonable efforts to block the installation of or disable or remove unwanted software; (iii) remove or disable any security, anti-spyware or anti-virus technology on a User’s computer; (iv) send email through a User’s computer without prior authorization; (v) open multiple, sequential, stand-alone advertisements in the consumer’s Internet browser which cannot be closed without closing the Internet browser or shutting down the computer or (vi) other similar activities that are prohibited by applicable law.

(c) Emails:  Publisher may use email to promote any Program, as allowed by the Advertiser in its Program requirements, so long as such email messages do not constitute Unsolicited Commercial Mail, comply in all respects with this Agreement, including ValueClick’s spam policy as set forth in Exhibit A hereto and Section 2(c) of this Agreement, and any and all applicable laws, rules and regulations, including without limitation, the CAN SPAM Act of 2003, as amended, and any unsubscribe request.  Further no email message initiated or sent by Publisher or on Publisher’s behalf may identify ValueClick.  ValueClick, on behalf of its Advertisers, shall provide Publisher with a list of all email users that have unsubscribed from the Program and no longer wish to participate in the Program (“Suppression List”).  Publisher shall scrub its e-mail list against the most recent Suppression List immediately prior to promoting any Program, such that the email addresses that appear in the Suppression List are removed.  Publisher shall not at any time email to any users contained in the Suppression List or any unsubscribe list of its own.  The Suppression List is the property of ValueClick and Publisher shall gain no interest, right or title from the use of the Suppression List.  In the event Publisher attempts to lease, sell or use the Suppression List in any regard or is in violation of this Agreement or section with respect to any email, ValueClick, in its sole discretion, may terminate this Agreement immediately, and cease any and all payments to Publisher and seek any and all remedies available to it under law and equity.  In the event Publisher has a maximum percentage (%) amount of email users that it allows to be scrubbed by the Advertiser for payment purposes, Publisher shall delineate such amount in the insertion order between the Publisher and ValueClick applicable to the Program.  

Publisher shall not transmit any email: (1) with materially false or misleading header information; (2) with a “from line” that is materially false or misleading and does not accurately identify a person initiating the email; (3) with a subject line that is misleading, false or misrepresentative or is likely to mislead the recipient about the content or subject matter of the email; (4) that does not include a clear and conspicuous identification that the email is an advertisement or solicitation; (5) that does not contain a clear and conspicuous notice of the opportunity to decline to receive further communications for at least thirty days after the transmission of the email; (6) that does not contain a valid physical postal address of the Advertiser and Publisher; (7) that does not contain a functioning return email or other Internet based mechanism, that (A) a recipient may use to submit a reply email or other form of Internet-based communication requesting not to receive future commercial e-mails from Publisher and Advertiser, (B) remains capable of receiving such messages or communications for no less than thirty (30) days after the email was sent; (8) with any content that (A) infringes or violates any intellectual, proprietary or privacy rights, or (B) is Prohibited Conduct; and (9) that does not allow the user to opt-out without requiring any payment or any other obligation as a condition for accepting or honoring a user’s opt-out request.
Publisher will not transmit a commercial email: (1) if Publisher knows, or has reason to know, that the email address was obtained using an automated means, including without limitation, harvesting software, such as harvesting bots or harvesters, dictionary attacks, etc., or an Internet service which indicated that at thetime the address was obtained the services was not to give or sell the address to others, or (2) to any individual that has requested not to receive any emails from Publisher more than ten (10) days after receipt of such request, unless the recipient subsequently requests that such email communication be initiated again.

Publisher will download and remove all e-mail addresses containing the domains located on the FCC’s wireless domain list (http://www.fcc.gov/cgb/policy/DomainNameDownload.html) from any list used in connection with any Program.

Publisher will not attempt in any way to alter, modify, eliminate, conceal or otherwise render inoperable or ineffective any tags, source codes, links, pixels, modules or other data provided by or obtained from ValueClick that allows ValueClick to measure ad performance or any of its services. 

Publisher shall maintain at all times during the terms of this Agreement, and for a period of three (3) years thereafter, complete and accurate subscriber sign-up/registration data for every subscriber to Publisher’s email list(s).  Publisher agrees that, within two (2) business days of ValueClick’s request, it shall provide, at a minimum, the following subscriber sign-up/registration data for any email address that Publisher sends an email Ad to: (1) subscriber email address used to sign-up register for Publisher’s email list(s); (2) subscriber’s IP address; (3) date and time of subscriber’s sign-up/registration for Publisher’s email list; and (4) location (URL) of subscriber’s sign-up/registration.
Publisher also shall not advertise or otherwise promote any Program via a third party website’s internal communication system, including without limitation, internal website email (i.e. MySpace.com or Facebook.com email), bulletinboards (i.e. Craigslist.org), chat rooms or comments.  All emails sent by Publisher under this Agreement shall be delivered solely to email lists owned by Publisher unless otherwise approved in writing by ValueClick.  Brokering third-party deals without disclosing such to ValueClick is strictly prohibited and is grounds for immediate termination, as well as any other remedy set forth in this Agreement.  Publisher shall also honor all opt-out requests within forty-eight consecutive hours of receipt or such lesser time per applicable law. 

Co-Registration:  If Publisher operates any co-registration campaigns to generate information submitted by users or leads (“Leads”) for any Advertisers, Publisher shall: (a) ensure that each Website for each co-registration campaign complies with the provisions of this Agreement, (b) that all Leads provided (1) meet ValueClick’s and the Advertiser’s co-registration campaign Program requirements, (2) are not fraudulently obtained, including but not limited to modifying approved lead generation forms, publishing an offer on an unapproved site, utilizing automated software or manpower to complete any co-registration forms, incentiviation of co-registration forms all as delineated in the IAB Online Lead Generation B2C and B2B Best Practices for U.S.-based Advertisers and Publishers (http://www.iab.net/iab_products_and_industry_services/508676/email_lead/1476) and/or a publisher’s inability to provide the user IP and time/date stamp for each Lead, (c) comply with specific co-registration program requirements, including but not limited to not exceeding any established Lead caps and/or promoting a co-registration offer prior to ValueClick’s written approval of Creative (with the exception of resizing the creative as set forth in Section 2a) and data transfer.  ValueClick may determine, in its sole discretion, whether Leads are considered valid.  In the event that an Advertiser disputes the validity of a Lead, ValueClick agrees to provide the rejected Lead or a list of same within seven (7) business days of the end of the month during which each such lead was generated.  All right, title and interest in the Leads shall vest exclusively with ValueClick or its Advertisers and Publisher may not use, sell, transfer or assign or attempt to monetize the Leads for its own purposes.

Non-Circumvention:  Except for reasonably documented pre-existing relationships and activities that are in Publisher’s ordinary course of business, Publisher agrees that, relevant to information that is specific and directly provided by ValueClick to Publisher, Publisher will not in any way bypass or circumvent, or attempt to bypass or circumvent ValueClick in connection with this Agreement. 

 3. Ad Content and Placement

(a) No Modifications to Creative, Code or Network IP.   Except as permitted under this Agreement, Publisher may not alter, copy, modify, take, sell, re-use, or divulge in any manner any Program, any Program materials, Network IP or computer code provided by ValueClick without ValueClick’s prior written consent.  Publisher may not copy any Program, Program materials, network IP or computer code and use or display them in any way in contravention of this Agreement.   Any Program, Program material, network IP or computer code of ValueClick’s which is copied, changed or altered without prior written consent will result in non-payment for the campaign and may result in termination.  Any approved modifications shall be owned solely by ValueClick.

(b) Requirements.   Publisher shall be solely responsible for (i) managing its advertising content exclusions in the ValueClick interface, and (ii) placing Programs in compliance with this Agreement.  If Programs are promoted on Websites in banner, leaderboard, skyscraper, wide skyscraper and in-stream, such Programs must be placed within 600 pixels of the top of the Webpage (above the page scroll/fold).

(c) Incentivization.  Publisher shall not incentivize or make any other offers in conjunction with the promotion of the Program without the prior written consent of ValueClick, which may come in the form of an Insertion Order where it is specified that incentivization is permitted.  ValueClick may terminate this Agreement immediately and cancel all payments due and owing to Publisher should ValueClick, in its sole discretion and judgement, believe that Publisher is in violation of this section. 

4. Network Quality

ValueClick reserves the right to audit Publisher’s traffic and has developed an anti-fraud system for regular audits of Publisher's traffic.  Publishers that commit fraudulent activities, including without limitation unauthorized incentivized leads and false leads will have their accounts permanently removed from the Network, with or without notice, and may not be compensated for fraudulent traffic at ValueClick’s discretion.

5. Proprietary Rights

(a) Licenses.   At the agreed upon pay-out price and provided that Publisher complies with all provisions of this Agreement, ValueClick hereby grants to Publisher a nonexclusive, limited, revocable license to use, execute, and display the Network IP solely for purposes of performing its other obligations hereunder.  Except for the limited license expressly granted in this Section, nothing in this Agreement shall be construed as ValueClick granting Publisher any right, title or interest in Network IP.   Publisher acknowledges and agrees that ValueClick and/or Advertiser owns all right, title and interest in and to the Network IP and all related intellectual and proprietary rights of any kind anywhere in the world.   Publisher’s use of the Network IP or the results created thereby, or disseminating or distributing any of this information except as expressly permitted by this Agreement is strictly forbidden and will result in the termination of this limited license and may result in Publisher being held liable under applicable law.

(b) Intellectual Property Ownership.   Subject to the limited licenses granted to ValueClick and Publisher hereunder, each party shall own and shall retain all right, title and interest in its trade names, logos, trademarks, service marks, trade dress, Internet domain names, copyrights, patents, trade secrets, knowhow and proprietary technology, including, without limitation, those trade names, logos, trademarks, service marks, trade dress, copyrights, patents, testimonials, endorsements, know how, trade secrets and proprietary technology currently used or which may be developed and/or used by it in the future ("Intellectual Property").   Except as provided in this Agreement, neither party may distribute, sell, reproduce, publish, display, perform, prepare derivative works or otherwise use any of the Intellectual Property of the other party without the express prior written consent of such party.

(c) Data Ownership.   Publisher understands that all data, including, but not limited to, personally identifiable information provided by Users in response to a Program and/or any or all reports, results, and/or information created, compiled, analyzed and/or derived by ValueClick from such data is the sole and exclusive property of Advertiser and/or ValueClick and is considered Confidential Information pursuant to this Agreement.  ValueClick and/or its Advertisers, in their sole discretion, shall have the right to market and re-market the User(s) and or data without further obligation to Publisher.   Publisher shall not make any use of, copy, make derivative works from, sell, transfer, lease, assign, redistribute, disclose, disseminate, or otherwise make available in any manner, such information, or any portion thereof, to any third-party.  Unless otherwise agreed to in writing by the parties, any other use of such information is strictly prohibited. 

6. Representations and Warranties

(a) Publisher Responsibility.   The parties hereby acknowledge that Publisher is solely responsible for the method of dissemination of the campaigns, and that ValueClick will not have any control over the method of dissemination and is relying entirely on these warranties made by Publisher.  Publisher shall also ensure that it shall strictly comply with any and all laws, rules and regulations, including those that are applicable to electronic messages, including the CAN SPAM Act of 2003, as amended, and shall not engage in any activity that will likely result in Publisher or ValueClick being named as a spammer by any industry self-regulating authority such as Spamhaus.  

(b) Publisher Warranties.   Publisher represents, warrants, covenants and acknowledges that (i) it will provide and maintain the resources, personnel and facilities suitable to perform its obligations under the Agreement; (ii) it will comply with all applicable federal, state and local laws and regulations including, without limitation, COPPA, the Utah and Michigan “Child Protection Registry” laws, laws relating to advertising, the Internet, privacy and unfair business practices, and the attached Addendum for UK Advertising for all traffic to the United Kingdom; (iii) it will not engage in Prohibited Conduct; (iv) it complies with its privacy policy and Section 7; (v) provides adequate disclosure with respect to any co-registration process that the information entered in relation to an offer provided by Advertiser’s program will be shared with the Advertiser in compliance with applicable law, (vi) that Publisher is at least 18 years of age on the effective date of this Agreement; and (vii) that ValueClick does not make any specific or implied promises as to the successful outcome of any Program.

(c) Mutual Warranties.   Each party represents and warrants to the other that (i) it has the full right, power, legal capacity, and authority to enter into, deliver and fully perform under this Agreement; (ii) neither the execution, delivery, nor performance of this Agreement will result in a violation or breach of any contract, agreement, order, judgment, decree, rule, regulation or law to which such party is bound; and (iii) such party acknowledges that the other party makes no representations, warranties, or agreements related to the subject matter hereof that are not expressly provided for in the Agreement.

7. Privacy

(a) Obligations.   Internet consumer privacy is of paramount importance to ValueClick, its subsidiaries, and its customers.  ValueClick is committed to protecting the privacy of consumers, clients, and Advertisers, and to do its part to maintain the integrity of the Internet.  Publisher therefore affirms and attests that it will adhere to fair information collection practices with respect to its performance under this Agreement.

(b) Privacy Requirements.   Publisher must clearly and conspicuously post on its Website an easy to understand privacy policy that (i) is in compliance with 1) all FTC guidelines and any other applicable laws, rules and regulations with respect to online privacy, and 2) the 2008 Network Advertising Initiative’s Principles and the Network Advertising Initiative’s Self-Regulatory Code of Conduct promulgated by the Network Advertising Initiative (“NAI”), as amended from time to time; and (ii) identifies the nature and scope of the collection and use of information gathered by Publisher and its business partners and offers the User the appropriate choice mechanism with respect to the collection and use of such information.

(c) Cookies.   Publisher acknowledges that (i) cookies are important devices for measuring advertising effectiveness and ensuring a robust online advertising industry and (ii) efforts are required to increase User awareness about the use of cookies and their role in providing free content and other benefits to Users.   Publisher agrees to take such steps as may be commercially reasonable and appropriate to promote User awareness about cookies or similar devices as may be identified by ValueClick.

8. Payment

(a) Payment Rate.  ValueClick reserves the right to set Program rates, which may vary with market conditions. Publishers will typically be paid within twenty-five (25) business days after the end-of-month. Publishers will be paid at the account level.  All accounts will be settled in US dollars ($US).  As a condition to ValueClick's obligation to make payments hereunder to Publisher, Publisher must have on file with ValueClick a completed and accurate W-9 (for US-based Publisher's) or a completed and accurate W-8 BEN (for non-US-based Publisher's).  Publisher payments will be withheld until the appropriate taxation documents are received by ValueClick.   If the required tax documents are not on file with ValueClick within three months of the date of a scheduled payment, ValueClick may charge a monthly administrative fee, representing ValueClick’s cost of establishing and maintaining Publisher's account, equal to 25% of the original balance.  All payments are based on actuals as defined, accounted and audited by ValueClick.  ValueClick reserves the absolute right to withhold payment from accounts or Publishers that violate any of the terms and conditions set forth herein.  ValueClick will determine, in its sole discretion, whether acts or omissions are deceptive, fraudulent or violate this Agreement.  Examples of such acts may include, without limitation, clicks without referring URLs, multiple leads from the same individual, entity or IP address, extraordinary high numbers of repeat clicks, and clicks from non-approved root URLs.

(b) Breach or Fraud.   If any Publisher violates or refuses to fulfill its responsibilities, or commits fraudulent activity, ValueClick reserves the right to withhold payment and take appropriate legal action.

(c) Calculation.   Calculation of Publisher earnings shall be in ValueClick’s sole discretion. In the event Publisher disagrees with any such calculation, Publisher shall immediately send a written request to ValueClick detailing, with specificity, Publisher's concerns.  Thereafter, ValueClick will provide Publisher with an explanation or, if such calculations are determined by ValueClick to be incorrect, an adjustment. ValueClick’s calculations shall be final and binding.   In the event no adjustment is necessary, Publisher shall reimburse ValueClick for its expenses in responding to Publisher's requests under this Section.

(d) Taxes.  Valueclick is not obligated to and shall not provide Publisher with tax and/or legal advice.  ValueClick undertakes no duty to investigate or research Publisher’s tax status and/or obligations, and such research and investigation is solely Publisher’s responsibility.  Publisher is obligated to independently assess and comply with all relevant tax and legal requirements.  If ValueClick provides Publisher with information regarding particular Advertiser or Publisher, it shall not be deemed tax or legal advice. 

9. Indemnity

Publisher is solely responsible for any legal liability arising out of or relating to (i) Publisher's Website(s) and/or any Publisher email, (ii) any material to which Users can link through Publisher's Website(s), and/or (iii) any consumer and/or governmental/regulatory complaint arising out of any campaign conducted by Publisher, including but not limited to any spam or fraud complaint and/or any complaint relating to failure to have proper permission to conduct such campaign to the consumer.  Publisher shall indemnify, defend, and hold harmless ValueClick and its officers, directors, employees, agents, shareholders, partners, affiliates, representatives, agents and Advertisers (collectively “ValueClick Parties”) harmless from and against any and all allegations, claims, actions, causes of action, lawsuits, damages, liabilities, obligations, costs and expenses (including without limitation reasonable attorneys’ fees, costs related to in-house counsel time, court costs and witness fees) (collectively “Losses”) incurred by, or imposed or asserted against, the ValueClick Parties which, if true, would constitute or relate to any claims, suits, or proceedings for (a) libel, defamation, violation of rights of privacy or publicity, copyright infringement, trademark infringement or other infringement of any third-party right, fraud, false advertising, misrepresentation, product liability or violation of any law, statute, ordinance, rule or regulation throughout the world in connection with Publisher's Website(s); (b) any breach by Publisher of any duty, representation or warranty under this Agreement; (c) any breach by ValueClick of any duty, representation, or warranty to provide Programs for placement on Publisher's Website(s) or email due to any breach by Publisher of this Agreement; (d) a contaminated file, virus, worm, or Trojan horse originating from the Publisher's Website(s); or (e) gross negligence or willful misconduct by Publisher.

10. Limitations of Warranties and Liability

(a) Disclaimer of Warranties.   ALL SERVICES PROVIDED BY VALUECLICK ARE PROVIDED ON AN “AS IS” “AS AVAILABLE” BASIS.  TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, VALUECLICK MAKES NO WARRANTIES, GUARANTEES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS, OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN, OR OTHERWISE EXCEPT AS EXPRESSLY SET FORTH HEREIN.   VALUECLICK IS NOT RESPONSIBLE FOR DELAYS CAUSED BY ACCIDENT, WAR, ACT OF GOD, EMBARGO, COMPUTER SYSTEM FAILURE, OR ANY OTHER CIRCUMSTANCE BEYOND ITS CONTROL.

(b) Limitation of Liability.   UNDER NO CIRCUMSTANCES SHALL VALUECLICK BE LIABLE TO PUBLISHER FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF VALUECLICK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM ANY ASPECT OF THE ADVERTISING RELATIONSHIP PROVIDED HEREIN.  IN NO EVENT SHALL VALUECLICK’S TOTAL OBLIGATIONS OR LIABILITY HEREUNDER EXCEED THE LESSER OF THE SPECIFIC ADVERTISING CAMPAIGN IN QUESTION OR TEN THOUSDAND DOLLARS ($10,000.00).   REGARDLESS OF ANY LAW TO THE CONTRARY, NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST VALUECLICK MORE THAN ONE (1) YEAR AFTER THE DATE UPON WHICH THE CLAIM AROSE.

11. Term and Termination

(a) Termination.   This Agreement, as may be amended, applies to Publisher for as long as Publisher promoted Programs for ValueClick.  ValueClick reserves the right to terminate any Publisher from the Network at any time, with or without cause.  

(b) Post-termination.   Upon termination, Publisher agrees to immediately remove from the Websites and any email any and all ValueClick Code and Network IP supplied to Publisher by ValueClick. Publisher will be paid, in the next scheduled payment cycle following termination, all legitimate, non-fraudulently accrued, earnings due up to the time of termination. 

12. Confidentiality     

Each party agrees that it may provide the other with information that is confidential and proprietary to that party or a third-party, as is designated by the disclosing party or that is reasonably understood to be proprietary and/or confidential ("Confidential Information").  ValueClick’s campaign rates are considered confidential.   Each party may use Confidential Information received from the other party only in connection with and to further the purposes of this Agreement. Confidential Information shall not be commingled with information or materials of others and any copies shall be strictly controlled.  The receiving party agrees to make commercially reasonable efforts, but in no case no less effort than it uses to protect its own Confidential Information, to maintain the confidentiality of and to protect any proprietary interests of the disclosing party.  Confidential Information shall not include (even if designated confidential by a party) information: (i) that is or becomes part of the public domain through no act or omission of the receiving party; (ii) that is lawfully received by the receiving party from a third-party without restriction on use or disclosure and without breach of this Agreement or any other agreement without knowledge by the receiving party of any breach of fiduciary duty, or (iii) that the receiving party had in its possession prior to the date of this Agreement. Upon termination of this Agreement, or upon written request by ValueClick, Publisher must destroy or return to ValueClick any Confidential Information provided by ValueClick under this Agreement.

13. Choice of Law and Attorneys’ Fees

This Agreement is governed by the laws of the State of California (USA), except for its conflict of law provisions. The exclusive forum for any actions related to this Agreement shall be in the state courts, and, to the extent that federal courts have exclusive jurisdiction, in Los Angeles, California.   The parties consent to such venue and jurisdiction, waive any right to a trial by jury, and agree to waive the personal service of any process upon them by agreeing that service may be effected by overnight mail (using a commercially recognized service) or by U.S. mail with delivery receipt to the last address provided by Publisher.  The application of the United Nations Convention on the International Sale of Goods is expressly excluded.   A party that primarily prevails in an action brought under this Agreement is entitled to recover from the other party its reasonable attorneys fees and costs.

14. Entire Agreement and Modification

This Agreement, including exhibits, and addenda contains the entire understanding and agreement of the parties and there have been no promises, representations, agreements, warranties or undertakings by either of the parties, either oral or written, except as stated in this Agreement.  This Agreement may only be altered, amended or modified by an instrument that is assented to by each party to this Agreement by verifiable means, including without limitation by written instrument signed by the parties or through a "click through" acknowledgement of assent.  No interlineations to this Agreement shall be binding unless initialed by both parties.  Notwithstanding the foregoing, ValueClick shall have the right to change, modify or amend ("Change") this Agreement, in whole or in part, by posting a revised Agreement at least five (5) days prior to the effective date of such Change.   Publisher’s continued use of the Network after the effective date of such Change shall be deemed Publisher’s acceptance of the revised Agreement.   No change, amendment, or modification of any provision of the Agreement by Publisher will be valid unless set forth in a written instrument signed by an executive of both Parties with the corporate authority to do so.

15. Notice

Except as provided elsewhere herein, both parties must send all notices relating to this Agreement to: (i) for ValueClick, via registered mail, return receipt requested or via an internationally recognized express mail carrier to:  CEO and General Counsel, 30699 Russell Ranch Road, Suite 250, Westlake Village, CA 91362 USA (effective upon actual receipt); and, (ii) for Publisher at the email or physical address listed on Your Account (effective upon sending as long as ValueClick does not receive an error message regarding delivery of the email) or five (5) days after mailing). 

16. Assignment

No rights or obligations under this Agreement may be assigned by Publisher without the prior written consent of ValueClick. Any assignment, transfer or attempted assignment or transfer in violation of this Section shall be void and of no force and effect.  ValueClick and any of its subsequent assignees may assign this Agreement, in whole or in part, or any of its rights or delegate any of its duties, under this Agreement to any party.  This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns.

17. Independent Contractors

Each party is an independent contractor.   Any intention to create a joint venture or partnership between the parties is expressly disclaimed.   Except as set forth herein, neither party is authorized or empowered to obligate the other or to incur any costs on behalf of the other without the other party’s prior written consent.

18. Marketing

Publisher shall not release any information regarding Programs nor Publishers relationship with ValueClick or its customers, including, without limitation, in press releases or promotional or merchandising materials, without the prior written consent of ValueClick.  ValueClick shall have the right to reference and refer to its work for, and relationship with, Publisher for marketing and promotional purposes.  No press releases or general public announcements shall be made without the mutual consent of ValueClick and Publisher.

19. Force Majeure

Neither party shall be liable by reason of any failure or delay in the performance of its obligations hereunder for any cause beyond the reasonable control of such party, including but not limited to electrical outages, failure of Internet service providers, default due to Internet disruption (including without limitation denial of service attacks), riots, insurrection, acts of terrorism, war (or similar), fires, flood, earthquakes, explosions, and other acts of God.

20. Survival and Severability 

Any obligations which expressly or by their nature are to continue after termination, cancellation, or expiration of the Agreement shall survive and remain in effect after such happening.  Each Party acknowledges that the provisions of the Agreement were negotiated to reflect an informed, voluntary allocation between them of all the risks (both known and unknown) associated with the transactions contemplated hereunder.  All provisions are inserted conditionally on their being valid in law.  In the event that any provision of the Agreement conflicts with the law under which the Agreement is to be construed or if any such provision is held invalid or unenforceable by a court with jurisdiction over the Parties to the Agreement, then (i) such provision will be restated to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law; and (ii) the remaining terms, provisions, covenants, and restrictions of the Agreement will remain in full force and effect.

21. Remedies and Waiver 

Except as otherwise specified, the rights and remedies granted to a party under this Agreement are cumulative and in addition to, not in lieu of, any other rights and remedies which the party may possess at law or in equity.  Failure of either party to require strict performance by the other party of any provision shall not affect the first party’s right to require strict performance thereafter. Waiver by either party of a breach of any provision shall not waive either the provision itself or any subsequent breach.

22. Counterparts

This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, and such counterparts together shall constitute one and the same instrument.  For purposes hereof, a facsimile, scanned or electronic copy of this Agreement shall be deemed to be an original.

IN WITNESS WHEREOF, the parties have executed this Agreement as of the last date below written.

ValueClick, Inc.  
        

Publisher:                                                

By:                                                     

By:                                                          

 

Title:                                                   

 

Title:                                                       

 

Date:                                                  

 

Date:                                                       


ADDENDUM FOR UK ADVERTISING

This Addendum for UK Advertising is hereby incorporated into and supplements any and all agreements, including this Agreement, between Publisher and ValueClick, Inc. and its subsidiaries (“Company”).  In the event of any inconsistency between this Addendum and the aforementioned documents, this Addendum shall control.

Pursuant to the Internet Advertising Sales House (“IASH”) Code of Conduct v. 7.2, advertisements may only be placed on sites meeting the following conditions and Publisher shall ensure that Publisher and/or such sites, as applicable, comply with the following conditions:

  1. The publisher of the site either owns or is entitled to use the content displayed on all URLs on which activity is running;
  2. The site does not knowingly include any ‘virus’ or other destructive programming or device that could impair or injure any data, computer system or software;
  3. The site does not knowingly violate any applicable laws or regulations, including without limitation, false or deceptive or comparative advertising laws, gaming and gambling laws, competition laws, and criminal laws;
  4. The site does not knowingly contain content originated by or on behalf of the site publisher that is defamatory, violates any rights of privacy or publicity or constitutes a misrepresentation;
  5. The content of the site originated by or on behalf of the site publisher does not and will not knowingly infringe any Intellectual Property Rights or other proprietary rights;
  6. The publisher and the site do not knowingly engage in, promote or facilitate activities such as pirating, hacking or any other activities which are illegal under UK law.
  7. In respect of unlawful activity or content contributed to the site without the publisher’s knowledge or awareness of its unlawfulness, the publisher operates a “notice and takedown” policy that complies with applicable law (currently the Electronic Commerce (EC Directive) Regulations 2002).
  8. The site publisher will use all reasonable endeavours not to include on the site those types of content forbidden by the IASH Code of Conduct. See the definitions of ‘barred inventory’ in Schedule C of the IASH Code of Conduct (www.iash.org.uk).  
  9. The site publisher will use all reasonable endeavors not to place advertisements having content or using means addressed by Schedule D of the IASH Code of Conduct (www.iash.org.uk) without Company’s prior written consent.
  10. The site publisher will use reasonable endeavors to comply with such additional restrictions as may be set forth in any amendments to the IASH Code of Conduct.

Definition of Terms Addendum

“Action” or “Actions” means a specific activity that is required by an Advertiser to qualify for payment for promotion of Advertiser’s Program, i.e. click, conversion, registration, lead, etc., which activity shall be specified by the Program on the ValueClick Site.
“Ad" or “Creative” means the specific graphic or text file(s) and any other materials, including any disclosures, provided to Publisher to market on behalf of Advertiser and/or ValueClick associated with Advertiser’s specified Program.

"Advertiser" means ValueClick and/or the advertiser or advertising agency providing a Program to ValueClick available on ValueClick’s Site to for a Publisher to promote as specified herein.

“Approved Websites” means the Publisher’s domain(s) and/or specific root URLs approved by ValueClick.
“CPA” means a Program for which Publisher shall be paid on a Cost per Action basis.

“Incentivized Traffic” means a Website where Ads are placed where Users have some sort of incentive to click through on Ads.

“Network IP” means the Ads, ValueClick Code or other intellectual property made available to Publisher in connection with its performance under this Agreement.

“Prohibited Conduct” means conduct, during the course of performance of this Agreement that is listed or related to the proscribed conduct listed in Section 2.

“Publisher Acceptance Email" means an email by ValueClick clearly communicating acceptance to Publisher’s Affiliate Network Application which also contains further instructions for Publisher regarding participation in the ValueClick Network.

“Publisher Media” shall mean the Website or email on which Publisher places Advertiser’s Program.

"Unique Click" means the number of times, as recorded by ValueClick’s server, a User viewing Publisher's Media, as identified by a cookie or IP address, clicks on a Creative, provided however, that a click on a specific Creative by a particular User shall only be counted as a Unique Click once every 24-hour period.

"User" means any person accessing Publisher Media. 
ValueClick Code” means pixels, intellectual property or other computer code provided by ValueClick for use by Publisher.

"ValueClick Network" means Publisher and its third-party Websites approved by ValueClick pursuant to this Agreement.

“WebSite” means a domain or specific URL of Publisher on which an Ad is placed.


EXHIBIT A

SPAM POLICY

Policies Related to the Transmission of Commercial Email and the Collection of Email Addresses:

Failure to comply with the policies listed on this page are a material breach of your agreement with ValueClick.  ValueClick reserves the right to terminate the Agreement with no liability to ValueClick for a breach of this SPAM policy.

  1. Header information in emails Publisher (or its agent) sends, including the “From” and “Subject” must:
    1. Be truthful;
    2. May not contain any false, deceptive, or misleading information
    3. May not disguise the origin of the sender, and
    4. Must display the true identity of the sender
  2. Email messages may ONLY be sent to recipients who have expressly and knowingly consented to receive the email message from Publisher and Advertiser by taking a specific action to opt -in to receive those messages. In addition:
    1. There must be a return email address or some other mechanism that is clearly and conspicuously displayed which provides the recipient with a way to opt-out of future emails; and
    2. The return address or other opt-out mechanism must be functioning and must remain functioning for a period of no less than 30 days after the transmission of the original message.
  3. Registration forms must contain a way for a user to opt-out of receiving electronic mail messages from the sender.
  4. Publisher must comply with any opt -out request submitted to Publisher (or its agent or Advertiser) within 10 business days of receiving the request and must scrub against Advertiser’s suppression list immediately prior to sending and shall not send to any User or recipient that is on the suppression list of Advertiser nor Publisher. Publisher may not sell, lease, exchange, or otherwise transfer any opt-out email addresses. Publisher may not have a third party send email to any opt-out email address on Publisher’s behalf.
  5. Publisher’s messages and copy must comply with the following:
    1. Clearly and conspicously identify the message as an advertisement or solicitation;
    2. Clearly and conspicuously provide notice of the opportunity to decline to receive further emails;
    3. Provide a valid physical postal address; and
    4. Clearly label sexually oriented material in the subject heading

If Publisher has or is suspected of having violated any of ValueClick’s policies or with the law, ValueClick reserves the right to disclose Publisher’s name and contact information to any person, entity, or law enforcement agency at its discretion.