Standard Terms and
Conditions for Publisher Network
These terms and conditions
("Standard Terms") shall be deemed incorporated by reference into any
insertion order (the "Insertion Order") submitted by the publisher
set forth in the Insertion Order (collectively, "Publisher") and
shall govern the Insertion Order, superseding all terms therein except for
those relating to advertisement scheduling, placement and pricing. All
Insertion Orders are subject to acceptance by Trancos, Inc. The Standard Terms
and Insertion Order shall be collectively known as the "Agreement."
1)
Agreement
a)
Term and Termination. The term of this Agreement commences
on the Acceptance Date set forth in the Insertion Order and terminates on the
End Date set forth in the Insertion Order or such later date as the parties may
agree in writing. Either party may cancel this agreement within 24 hours
written notice. Start and finish dates must be adhered to in all instances.
Trancos, Inc. will not be responsible, nor be obliged to pay for runs before
the "start date" & after the "end date".
2)
Billing
a)
Terms of Payment. Both Trancos,
Inc. and Publisher understand and agree that payment will be made
by Trancos, Inc for all valid accepted leads within thirty (30) days
from the end month, for all amounts due to the Publisher for
which Trancos, Inc. has received payment from advertisers
i)
Both Parties understand that final billable numbers will be
confirmed by CoregMedia's Publisher Account Administration Tool provide by
Trancos, Inc. and that numbers will not be finalized until receiving
written notification.
3)
Delivery
a)
Lead rejection. Leads will be validated and checked for
duplicate entry. Invalid or duplicate leads will be rejected or returned. Leads
must be sent via the format and method specified in the publisher
administration area.
b)
Lead caps. Lead caps will be strictly enforced. Any leads
delivered over the amount specified in the Insertion Order will be rejected or
returned.
4)
Publisher Responsibilities and Limitations.
a)
Publisher warrants that its Web Site shall not 1) contain or
promote sexually explicit materials; promote violence, discrimination based on
race, sex, religion, nationality, disability, sexual orientation, age, or
family status, or any other materials deemed unsuitable or harmful to the
reputation of Trancos, Inc.; 2) promote illegal activities or violations of the
intellectual property rights of others; 3) promote activities generally
understood as Internet abuse, including but not limited to the sending of
unsolicited bulk electronic mail; and, 4) shall not be advertised or promoted
through the use of unsolicited bulk email, or allow Company members or
customers to engage in similar activities through Company's Web Site, including
those activities prohibited by this agreement.
b)
Publisher is solely responsible for the development,
operation, and maintenance of the Publisher's Web Site and for all materials
that appear on Company's site including maintenance of Trancos, Inc.'s
advertising placements.
c)
Leads must be generated by an approved creative in a
non-incentivized manner only. Non-compliance with this Agreement will result in
loss of all revenue on a campaign.
d)
Advertisement may only run on URL specified in this IO. If
any other URL is to be used, specific written authorization must be given,
prior to placement on URL. Violation of this rule will result in loss of ALL
revenue on this campaign.
e)
Publisher may not circumvent the relationship of Trancos,
Inc. and its advertising partners without express written permission from a
qualified Trancos, Inc. representative.
5)
Warranties and Liability
a)
Indemnification. Publisher agrees to indemnify, defend and
hold Trancos, Inc. and Third Parties (if any) harmless from and against any and
all liability, loss, damages, claims or causes of action, including reasonable
legal fees and expenses, arising out of or related to (i) breach of any of the
foregoing representations and warranties, or (ii) any third party claim arising
from or relating to this Agreement.
b)
Confidentiality. During the term of this Agreement, and
until such time as the "Confidential Information" (as defined below)
is no longer protected as a trade secret under California law, neither party
will use or disclose any "Confidential Information" of the other
party except as specifically contemplated herein. "Confidential
Information" means information that: (1) is sufficiently secret to derive
economic value, actual or potential, from not being generally known to other
persons who can obtain economic value from its disclosure or use; and (2) is
the subject of efforts that are reasonable under the circumstances to maintain
its secrecy or confidentiality. Subject to the foregoing, Confidential
Information shall include, without limitation, technical or non-technical data,
a formula, pattern, compilation, program, device, method, technique, drawing,
process, financial data, or list of actual or potential customers or suppliers,
the advertisement before publication, and the terms of the Insertion Order.
Confidential Information does not include information that: (i) has been
independently developed by the receiving party without access to the other
party's Confidential Information; (ii) has become publicly known through no
breach of this Section by the receiving party; (iii) has been rightfully
received from a third party authorized to make such disclosure; (iv) has been
approved for release in writing by the disclosing party; or (v) is required to
be disclosed by a competent legal or governmental authority. At the request of
the disclosing party, the receiving party shall return all of the disclosing
party's Confidential Information to the disclosing party.
c)
No Warranty. TRANCOS, INC. MAKES NO WARRANTY,
EXPRESS OR IMPLIED, WITH RESPECT TO ANY MATTER, INCLUDING WITHOUT LIMITATION
SERVICES AND EXPRESSLY DISCLAIMS THE WARRANTIES OR CONDITIONS OF
NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE. EXCEPT
AS EXPRESSLY SET
6)
E-mail Marketing Policy/CAN-SPAM Compliance.
a)
Publisher represents and warrants that, at all times, it
will comply with all applicable state and federal laws, rules and Federal Trade
Commission enabling regulations (including the CAN-SPAM Act of 2003, as amended
from time to time), with respect to e-mail marketing. Publisher acknowledges
that any failure to comply with this E-mail Marketing Policy may, in our sole discretion, result in the immediate termination of its
Publisher status and the forfeiture of any and all rights to any Commissions
owed to the Publisher by Trancos, Inc.
b)
Without limiting the generality of the foregoing, when
performing e-mail marketing of any kind and on behalf of any Advertiser,
Publisher represents and warrants that Publisher shall: A. deliver commercial
e-mail only to those recipients: i) who have given Publisher direct and/or
explicit consent to receive e-mail advertising from Publisher, as defined under
applicable law, and have not revoked such consent as of the date that the
commercial e-mail was transmitted to such recipient; or (ii) with whom
Publisher has a preexisting business relationship, as defined under applicable
law, and have not unsubscribed to receive e-mail advertising as of the date
that the commercial e-mail was transmitted to such recipient; B. refrain from
falsifying e-mail header and transmission information (including, without
limitation, source, destination and routing information); C. not use any
subject or from line that is materially false or misleading; D. refrain from
seeking or obtaining unauthorized access to computers for the purpose of
sending any and all commercial e-mail; E. include within all commercial e-mail
sent: a valid street address for both Publisher and the advertiser (if any); a
clear and conspicuous identification that the e-mail message is an
advertisement or solicitation; a clear and conspicuous opt-out notice and
functional opt-out mechanism; and process unsubscribe requests within five (5)
days; F. comply with all legal obligations with respect to unsubscribing
consumers from Publisher's e-mail mailing lists; G. at least once a week, scrub
the Publisher Database against the Client suppression list that will be made
available on the Program Website, subject to the provisions contained in
Section 8a. herein below; and H. immediately notify Trancos, Inc. in the event
that any complaint, investigation and/or litigation ensues concerning
Publisher's e-mail practices (whether or not such complaint, investigation
and/or litigation relates to Publisher's relationship with Trancos, Inc.).
7)
Trademarks.
a)
Each party grants the other party a non-exclusive,
non-transferable, revocable, royalty-free license to use its trademarks, logos,
trade names and the other similar identifying material that it provides
(collectively, the Marks), solely in connection with establishing Trancos, Inc.
Promotional Features and for promoting, advertising, marketing and publicizing
the relationship between the parties for the duration of this contract. Any use
by one party of the other party's Mark(s) must be submitted to the other party
in advance for approval, which approval shall be within the sole discretion of
the owner of the Mark. Each party agrees not to alter, modify or change the
other party's Mark(s) in any way. Each party agrees not to use the other
party's Mark(s) in any manner that is disparaging or that otherwise portrays
the other party in a negative light. Any rights not expressly granted herein
are hereby reserved.
8)
Data Ownership.
a)
All leads purchased by Trancos, Inc. from Publisher become
the sole property of Trancos, Inc. and its advertiser and may not be resold or
remarketed to for any purpose.
9)
Construction.
a)
No term or condition
other than those set forth in the Standard Terms or in the Insertion Order
relating to advertisement scheduling and pricing shall be binding on Trancos,
Inc. unless in writing signed by duly authorized representatives of the
parties. This Agreement constitutes the entire agreement between the parties
concerning the subject matter hereof and supersedes all prior and
contemporaneous agreements and communications, whether oral or written, between
the parties relating to the subject matter hereof, and all past courses of
dealing or industry custom. The terms and conditions hereof shall prevail
exclusively over any written instrument submitted, including Publisher's
insertion order, and Publisher hereby disclaims any terms therein, except for
terms therein relating to scheduling and pricing.
10)
Dispute Resolution
a)
The validity of this agreement and each of its terms and provisions, as well as the rights and duties of the parties under this agreement, shall be construed pursuant to and in accordance with the law of the State of California, without giving effect to principles of conflicts of law. Any legal action, court proceeding, or arbitration, to construe or enforce this agreement or otherwise to resolve any dispute between the parties based on this agreement, shall be commenced and maintained in an appropriate court or other forum in the State of California. Publisher shall make no public announcement regarding the existence or content of the Insertion Order without Trancos, Inc.'s prior written approval, which approval shall not be unreasonably withheld. Any notices under this Agreement shall be sent to the addresses set forth in the Insertion Order (or in a separate writing) by facsimile or nationally-recognized express delivery service and deemed given upon receipt. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party. If any provision contained in this Agreement is determined to be invalid, illegal or unenforceable in any respect under any applicable law, then such provision will be severed and replaced with a new provision that most closely reflects the original intention of the parties, and the remaining provisions of this Agreement will remain in full force and effect.