Service Agreement was updated on January 27th, 2015.
This Service Agreement (the "Agreement") is a legal document between you ("Publisher") and Infolinks, Inc., a Delaware corporation ("Infolinks"), as of Friday, May 29, 2015 (the "Effective Date").
|Contact:||Chief Operating Officer|
|Address:||505 Hamilton Ave. Suite 220 Palo Alto, CA 94301|
|1.||Service. Infolinks will enable the provision of commercial in-text advertisement links on Publisher''s Site(s) (the "Service") by placing Java Script tags within Publisher's Site(s).|
|2.||Publisher Site Approval. Publisher may implement the Service only in such websites listed in Schedule A attached hereto (hereinafter “Publisher's Site(s))”. Any change or amendment to Schedule A must be done in writing and approved in advance by Infolinks. No Service shall be provided on a secure/sensitive pages.|
|3.||Payment. Publisher will receive as a payment 70% Revenue Share of the Gross Revenues (as defined below) subject to the terms of this Agreement.|
|4.||Terms and Conditions. TThe terms and conditions and definitions detailed below in sections 5 through 15 are included as a binding part of this Agreement.|
IN WITNESS WHEREOF, the parties have caused this Publisher Agreement to be executed as of the Effective Date by their duly authorized representatives.
| ("PUBLISHER") |
|5.||Payment Terms and Definitions.
|6.||Reporting. The Gross Revenue payable to Publisher will be based on Infolinks' reporting system. Infolinks will provide Publisher with a login ID to a reporting interface that will enable Publisher to view an estimate of the Gross Revenues earned under this Agreement. Publisher acknowledges and agrees that the Gross Revenue amounts are based solely on Infolinks' final reported numbers and on no other source.|
|7.||Term, Termination and Renewal. |
|8.||License to Use Commercial InText Links Technology and Ownership. Infolinks hereby grants to Publisher a non-exclusive, non-transferable, non-sublicensable license to use the Commercial InText Links software ("Software"), provided by Infolinks, that enables the Service to run on the Publisher Sites(s), subject to the terms and conditions of this Agreement and the terms and conditions provided to Publisher with the Software. Infolinks expressly reserves all rights in and to the Software not expressly granted herein. Title to the Software shall not pass to Publisher in any circumstances. Publisher will not copy, translate, decompile, disassemble, reverse engineer or otherwise reproduce or modify, add to or otherwise change the Software, without Infolinks' specific written authorization. Publisher agrees and undertakes not to use the Software on any site which is a secure and/or sensitive site (or pages within).|
|9.||Non Disclosure. This Agreement as a whole, and any of the terms mentioned in it are confidential and cannot be disclosed to any third party without an explicit written consent by the other side, provided that it is hereby agreed by the Publisher that Infolinks may disclose the terms of this Agreement to any third party payment processor on its behalf.|
|11.||No Guarantee. Infolinks makes no guarantee regarding the level of impressions of, or clicks on any ad, the timing of delivery of such impressions and/or clicks, and the relevancy of the commercial in-text links or the ads shown under this Agreement. For the avoidance of doubt, Infolinks makes no guarantee that any commercial in-text links will appear on any page of the Publisher Site(s), and consequently there is no guarantee that this Agreement will generate any revenue for the Publisher.|
|13.||Indemnification. Publisher agrees to indemnify and hold harmless Infolinks and its directors, officers, employees, agents and authorized representatives from and against any costs, losses, liabilities and expenses (including court costs and reasonable attorneys' fees) that Infolinks may suffer, incur or be subjected to by reason of any legal action, arbitration or other claim by a third party arising out of or as a result of a breach of Publisher's representations, warranties and agreements made hereunder.|
|14.||Limitation of Liability. THE SERVICE IS MADE AVAILABLE TO PUBLISHER "AS IS" AND WITHOUT ANY WARRANTY OR REPRESENTATION, WHETHER EXPRESSED OR IMPLIED, OF ANY KIND INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABLE QUALITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR THOSE ARISING BY LAW, STATUTE, USAGE OF TRADE, OR COURSE OF DEALING. ALTHOUGH INFOLINKS WILL MAKE REASONABLE COMMERCIAL EFFORTS TO ENSURE THAT THE RELEVANT ADS ARE SERVED TO END USERS VISITING PUBLISHER PAGES, PUBLISHER UNDERSTANDS AND AGREES THAT SUCH PROCESS IS BEING AFFECTED BY AUTOMATED MEANS, AND INFOLINKS IS NOT RESPONSIBLE, NOR DOES IT GIVE ANY WARRANTY OR REPRESENTATION AS TO THE OUTCOME OF SUCH PROCESS. INFOLINKS DOES NOT GUARANTEE THAT IT WILL HAVE RELEVANT ADS FOR ANY GIVEN PUBLISHER PAGE AND INFOLINKS DOES NOT WARRANT OR GUARANTEE THAT THE SERVICE OR THE OPERATION THEREOF WILL BE UNINTERRUPTED OR WILL MEET PUBLISHER'S NEEDS. NEITHER PARTY WILL BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR OTHER SIMILAR DAMAGES AND ANY LOSS OF PROFITS, LOSS OF REVENUES, LOSS OF SAVINGS, LOSS OF CLIENTELE, LOSS OF USE OR LOSS OR CORRUPTION OF DATA, WHETHER UNDER TORT, CONTRACT OR OTHER THEORIES OF RECOVERY, EVEN IF SUCH PARTY WAS OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND IN NO EVENT WILL INFOLINKS' LIABILITY ARISING OUT OF THIS AGREEMENT FROM ANY CAUSE OF ACTION WHATSOEVER WILL EXCEED THE AGGREGATE AMOUNTS ACTUALLY PAID UNDER THIS AGREEMENT TO PUBLISHER DURING THE THREE (3) MONTHS PRIOR TO THE DATE THE CAUSE OF ACTION AROSE. Infolinks is not responsible for any web sites that can be linked to from the ads or for the results of any act or omission of any Advertiser or any other Infolinks provider.|
|15.||Miscellaneous. (A) Any notice by Infolinks required or permitted hereunder may be posted by Infolinks on its website, sent to Publisher by email or by mail, as Infolinks may elect. Any notice by Publisher required or permitted hereunder shall be sent to Infolinks by mail. (B) This Agreement constitutes the entire agreement of the parties concerning the subject matter hereof. (C) Infolinks may change the terms of this Agreement from time to time, in its sole discretion, upon posting notice at http://www.infolinks.com/. Publisher's continued use of the Service shall constitute its consent to any changes made. If Publisher does not agree to the new or different terms, it should provide a written notice to Infolinks to such extent, and the Agreement shall immediately terminate on the date Infolinks receives such notice. (D) Neither party may assign this Agreement, nor any right under or obligation pursuant to this Agreement, without the other party's prior written consent which shall not be unreasonably withheld, except that Infolinks may assign this Agreement and/or its rights and obligations under this Agreement within the context of its merger, acquisition or other transaction of similar nature. (E) This Agreement will be governed by and construed in accordance with the substantive laws of the State of Delaware without regard to its conflict of law principles. In any dispute under this Agreement, each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts in Delaware. (F) No waiver by a party of any breach of any provision of this Agreement will constitute a waiver of any other breach of that or any other provision of this Agreement. (G) Each party will perform its obligations as an independent contractor and will be solely responsible for its own financial obligations. (H) This Agreement will not create a joint venture, partnership, or principal and agent relationship between the parties.|
These Terms and Conditions govern your participation in the publishers’ referral program (the "Referral Program") operated by Infolinks, Inc. ("Infolinks" or "we" or "us"). In these Terms and Conditions, the terms "Participant", "you" and "your" refer to you (the applicant).
Description of Referral Program. The Referral Program provides participants the ability to earn commissions as compensation for referring other owners of websites (hereinafter the “Referred Clients”) to register with Infolinks as a publisher via registration at a unique URL to be determined by Infolinks. In order to permit accurate tracking, reporting, and Commission Fee (as defined below) accrual, Infolinks will provide you with a special unique link or some banner tools (collectively the "Referral Link") which must be used in all links between your Website and this Referral Program. Subject to these Terms and Conditions, when (and if) such Referred Client, referred via the Referral Link, generates revenues to Infolinks, the participant is eligible for a commission for such qualifying revenues as described in Section 3 (Commission Fees) below. All Referred Clients must be approved by us at our sole discretion and accept our standard terms of service.
It is your sole responsibility to ensure that the unique Referral Links are integrated properly on your website(s).
Required Information; Affiliate Account. In order to join this Referral Program, you must provide us with all information required by our application process (including, without limitation, a Form W-9, if applicable) and agree to these Terms and Conditions. We reserve the right to reject your application for any reason, including, without limitation if your application does not reflect our business principles or if the Referred Clients contains any content listed in Section 6 of these Terms and Condition or is otherwise not in compliance with other guidelines of our Referral Program.
Commission Fees. Subject to compliance with the terms of these Terms and Conditions, we will pay you a commission fee (the "Commission Fee") on each Qualifying Referred Client (as defined below). For purposes of this Referral Program, "Qualifying Referred Client" means a first-time publisher (meaning publishers who have never registered with Infolinks, nor were active leads, or have not interacted with our marketing, support or sales teams in the past 6 months prior to their registration as consequence of this Referral Program), which is not affiliated in any manner to you, and which were referred to Infolinks via the Referral Link.
The Commission Fee shall be 10% of the amounts paid to Qualifying Referred Clients by Infolinks (“Qualifying Referred Client Earnings”) during the first 12 month period from the date of referral (the “Commission Fee”, and “Referral Period”). If Qualifying Referred Clients’ Earnings for which a Commission Fee is paid to you is later refunded, deemed fraudulent or charged back, the relevant Commission Fee will be deducted from the next payment sent to you following such event.
Payment of Commission Fees. Payment of the Commission Fee will be made in accordance with our standard Terms Of Service as may be amended from time to time (current version can be found at https://www.infolinks.com/service-agreement), and the Payment Threshold set forth thereunder shall apply to the Commission Fees payable hereunder. Payment of the Commission Fees may be less any taxes required to be withheld under applicable law. Payments are made according to Infolink’s internal reporting and may not be disputed. We reserve the right to withhold payment directly related to cases of suspected fraudulent activity or breach of these Terms and Conditions. We further reserve the right to revoke the Referred Client’s account with Infolinks (subject to our standard Term of Service, as may be amended from time to time) and consequently withhold any and all outstanding payments (including any earned balance) due you under this Referral Program
Copyrighted Material; Prohibited Uses of Referral Links and Infolinks’ and Third-party Materials
5.1. As between the parties, you acknowledge and agree that Infolinks owns all right, title and interest in and to all patents, copyright, trademarks, trade secrets, service marks, trade names and other intellectual property in the Infolinks’ website, the Referral Program, the Referral Links and the service and any software or other intellectual property provided by Infolinks in connection with this Referral Program (the "Infolinks Intellectual Property"). You shall not take any action inconsistent with such ownership by Infolinks, nor attempt to register any Infolinks Intellectual Property in any jurisdiction or any urls containing in whole or in part any Infolinks Intellectual Property.
5.2. Subject to approval of your application to the Referral Program and any limitations herein, Infolinks hereby grants to you, for the Term (as defined below), a revocable, non-exclusive, non-transferable limited license to use the Infolinks Intellectual Property contained in the Referral Links for the express limited purpose of this Referral Program. You, by virtue of these Terms and Conditions, shall not obtain or claim any right, title or interest in or to the Infolinks Intellectual Property, except the right of use as specified herein, and you acknowledge and agree that all such use shall inure to the benefit of Infolinks.
5.3. The following activity is strictly prohibited. If you engage in any such activity, we may immediately terminate these Term and Conditions with no further obligation to you, including without limitation the termination of our obligations with respect to any Commission Fees outstanding:
5.3.1. Placing any Referral Links or Infolink’s related advertising on any website not owned and/or operated by you unless expressly approved in writing by us. In any event, promotion of the Referral Program on your website may be done so long as your website meets our program policies listed in these Terms and Conditions and our standard Term of Service.
5.3.2. To protect the integrity of the reputation of Infolinks’ brand name, you may not promote the unique Referral Links via certain forms of indiscriminate advertising, commonly referred to as "spamming".
5.3.3. You may not promote the unique Referral Links via postings to non-commercial newsgroups or cross-postings to multiple newsgroups at once; however you may promote the unique Referral Links via newsgroup postings to newsgroups that specifically welcome commercial messages.
5.3.4. You may not promote the unique Referral Links via promotion on third-party search engines. Finally, we may impose additional restrictions on use of the Referral Links and Infolinks Intellectual Property and on any other activities pursuant to the Referral Program that we determine in our sole discretion to be in our best interest. Such additional restrictions shall be effective immediately upon notice from Infolinks to you in accordance with these Terms of Conditions.
5.4. You may promote the unique Referral Links via mailings to recipients who are already customers or subscribers to your website's services, provided that the recipients have the option to remove themselves from future mailings.
5.5. In all promotions, you must clearly represent yourself as an entity totally independent from Infolinks and Infolinks Referral Program.
Prohibited Content. 6. Your site nor the Referred Client may display any of the following content or engage in any of the following activity: (1) violent images or messages that promote violence; (2) promotion of discrimination based on race, sex, religion, national origin, physical disability, sexual orientation or age; (3) promotion of illegal activities; (4) promotion or display of defamatory, libelous or harmful material or material that otherwise infringes upon the rights of Infolinks or any third parties, including intellectual property rights and rights of personality; (5) content that is inconsistent with Infolniks’ policies and/or practices; (6) spamming of a participant's users who have registered for the Infolinks services; or (7) any other content or activity that we find objectionable in our sole discretion.
Term of these Terms and Conditions. These Terms and Conditions shall commence on the day it is entered into by you and shall continue until terminated by you or by Infolinks as provided for herein (the "Term").
Modifications. We reserve the right to change any of the terms and conditions in these Terms and Conditions, including issuing binding policy documents, at any time and in our sole discretion, by posting a new agreement reflecting such changes on our website. , or posting/distributing applicable policy document, such changes to be effective upon posting or communicating such modification to you. Infolinks will not be required to provide notice to you of changes to these Terms and Conditions other than by posting the revised Terms and Conditions as described above. You hereby acknowledge that such modifications may include, without limitation, changes to commission structures, prohibited practices and other program rules and payment processes.
IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE YOUR PARTICIPATION IN THIS REFERRAL PROGRAM. YOUR CONTINUED PARTICIPATION IN THE REFERRAL PROGRAM FOLLOWING OUR POSTING OF OR PROVISION TO YOU OF A CHANGE NOTICE OR NEW AGREEMENT ON OUR SITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.
Termination of these Terms and Conditions; Survival. We reserve the right to terminate these Term and Conditions at any time. Termination will be deemed to be effective upon email delivery to you of such termination notice, which will deemed to be received immediately upon delivery, regardless of whether you successfully receive such notice or not. If we terminate the Term and Conditions in connection with a breach by you of any of the terms herein, any commissions payable or owing to you will be forfeited by you and will have no claim, right title or interest to any such monies. Any provision of these Term and Conditions that expressly states that it shall survive or which, by its nature, must survive the completion, expiration, termination or cancellation of these Term and Conditions, shall survive the completion, expiration, termination or cancellation of this Term and Conditions.
Warranty Disclaimer. Infolinks makes no warranties, representations or conditions with regard to the its services, its site, the Referral Program, the and/or the Infolinks Intellectual Property, whether express or implied, arising by law or otherwise, including without limitation any implied warranty of merchantability or fitness for a particular purpose or non-infringement or any implied warranty arising out of course of performance, course of dealing or usage of trade. Further, Infolinks expressly disclaim any obligation to indemnify you or any of your representatives or owners in connection with any lawsuit or other proceeding arising out of any of your use, or any user's use (including any Referred Client) of the Referral Program, Referral Links and/or Infolinks Intellectual Property. Without derogating from the generality of the aforesaid, we are not responsible for any representations made by you that contradict Infolinks’ policies and terms of services.
Limitation of Liability. Infolinks shall have no liability for any indirect, incidental, special or consequential damages or any loss of revenue or profits arising under or with respect to these Terms and Conditions, the Referral Program, and/or the Infolinks Intellectual Property even if Infolinks has been advised of the possibility of such damages. Further, Infolinks’ aggregate liability arising under or with respect to these Terms and Conditions or shall in no event exceed the total Commission Fees paid or payable to you under these Terms and Conditions.
Notice. Except as provided for in Section 8, hereof, all notices and requests in connection with these Terms and Conditions will be given in writing and will be deemed given as of (1) the day they are received if sent either by messenger, delivery service, or Post or (2) the date sent if delivered by email or fax, and addressed as follows: If to Infolinks by email to email@example.com. If to Participant: To the email address provided by you to us on the Referral Program site.
Representations and Warranties. You represent and warrant that you have the necessary and full rights, power, authority and capabilities to enter into these Terms and Conditions and to perform your obligations hereunder and that the execution of and performance of your obligations under these Terms and Conditions will not violate the rights of any third party, nor any applicable federal, state, provincial and local law or regulation. You further represent and warrant that your website is a true referring url and it shall not include any content or material that violates the rights of Infolinks or any third party.
Indemnification. You shall defend, indemnify and hold harmless Infolinks, its parent, subsidiary and affiliated companies and its and their directors, officers, employees, affiliates and agents, against any claim, demand, cause of action, debt or liability, including reasonable attorney's fees, to the extent that (i) it is based upon a breach of your representations, warranties or obligations hereunder; (ii) it arises in connection with the participant’s referring website or your negligence or willful misconduct; or (iii) it is based on violation by you of any applicable federal, provincial, state or local law or regulation in providing products or services hereunder, including without limitation applicable tax regulations.
Miscellaneous. You and Infolinks are independent contractors and nothing in these Terms and Conditions is intended to or will create any form of partnership, joint venture, agency, franchise, sales representative or employment relationship between the parties including without limitation our approval of your materials. You may not assign these Terms and Conditions, by operation of law or otherwise, without the prior written consent of Infolinks; we may assign these Terms and Conditions at any time without notice to you. Subject to the foregoing restriction, these Terms and Conditions are binding upon, inures to the benefit of and is enforceable by the parties and their respective successors and assigns.
Governing Law; Jurisdiction. These Terms and Condition shall be governed by the laws of State of Delaware without regard to its conflict of law principles. In any dispute under these Terms and Condition, each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts in Delaware.
Transition From Previous Referral Program. Publishers who referred clients to Infolinks under Infolinks former referral program which was in effect prior to the Effective Date, will be subject automatically effective as of the Effective Date, to this Referral Program for the remaining months of the Referral Period. Publishers who were revoked by themselves or referred Referral Clients were revoked by Infolinks, or referred Referral Clients to Infolinks 12 months prior to the Effective Date of this Referral Program will no longer receive any referral/commission fees for those clients.